author: WIEAND, Judge.

text:
    581 A.2d 1380
    COMMONWEALTH of Pennsylvania v. Peter A. BYBEL, Appellant.
    Superior Court of Pennsylvania.
    Argued March 28, 1990.
    Filed Nov. 5, 1990.

      Emmanuel H. Dimitriou, Reading, for appellant.
    Charles M. Guthrie, Jr., Asst. Dist. Atty., Reading, for Com.
    Before WIEAND, BECK and POPOVICH, JJ.
   WIEAND, Judge.

Peter Bybel was tried by jury and was found guilty of third degree murder in the shooting death of David Renninger on July 5, 1987. Post-trial motions were denied, and a sentence of imprisonment was imposed. On direct appeal, Bybel challenges the sufficiency of the evidence to sustain the conviction and alleges numerous trial errors. After careful review, we conclude that a new trial is necessary.

“In reviewing appellant’s challenge to the sufficiency of the evidence we must determine ‘whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.’ ” Commonwealth v. Sabharwal, 373 Pa.Super. 241, 243, 540 A.2d 957, 958 (1988), quoting Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984).... The same standard is applicable in cases, such as the instant case, where the evidence supporting a conviction “is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988). See also: Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977); Commonwealth v. Petrisko, 442 Pa. 575, 579-580, 275 A.2d 46, 49 (1971). There is no requirement that the Commonwealth exclude all possibility that a third party may have committed the crime. See: Commonwealth v. Sullivan, supra [472 Pa.] at 152-153, 371 A.2d at 479; Commonwealth v. Kravitz, 400 Pa. 198, 212-213, 161 A.2d 861, 868 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).

Commonwealth v. Akers, 392 Pa.Super. 170, 181, 572 A.2d 746, 751 (1990).

On July 5, 1987, David Renninger’s dead body was found lying beside his motorcycle along a path which crossed wooded property owned by Peter Bybel in Berks County. Renninger had been killed by a bullet fired from a .22 caliber rifle. Such a rifle was found in the basement of Bybel’s home. Expert testimony identified it as the rifle from which the fatal shot had been fired. Bybel, the evidence showed, had been working around his property on the day of the shooting. Other evidence showed that Bybel, an eighty-one (81) year old man, had threatened, on prior occasions, to shoot persons who had operated motorcycles in the same area. A week before the shooting, Bybel had told a cyclist that if the rider returned, he, Bybel, would shoot him, “no questions asked.” Approximately two and one-half months before, another motorcyclist in the same area had seen Bybel carrying a rifle and had heard shots as he rode away. A year before, another motorcyclist had reported shots being fired in the same area, and still earlier, Bybel had confronted a motorcyclist with a rifle. A neighbor testified that on several occasions he had observed appellant running towards the path, carrying a rifle, as motorcycles passed.

This evidence, although circumstantial, was sufficient to enable a jury to find that it was appellant who had fired the fatal shot. See and compare: Commonwealth v. Vedam, 349 Pa.Super. 270, 502 A.2d 1383 (1986). It was also sufficient to show a killing with malice.

There is no requirement that a homicide ... be proven by eyewitness testimony. Circumstantial evidence may be sufficient to prove any element, or all of the elements of the crime. Commonwealth v. Crowson, 488 Pa. 537, 542, 412 A.2d 1363, 1365 (1980); Commonwealth v. Amato, 449 Pa. 592, 297 A.2d 462 (1972); Commonwealth v. Chester, 410 Pa. 45, 188 A.2d 323 (1963). Furthermore, “[ajlthough no single bit of evidence may conclusively establish guilt, the verdict will be sustained where the totality of the evidence supports the finding of guilt.” Crowson, supra 488 Pa. at 543, 412 A.2d at 1365. See Commonwealth v. Dawson, 464 Pa. 254, 346 A.2d 545 (1975).

Commonwealth v. Hardcastle, 519 Pa. 236, 250, 546 A.2d 1101, 1107-1108 (1988). The trial court properly denied appellant’s motion in arrest of judgment.

Because the evidence at trial was sufficient to support the verdict, appellant’s claim that the trial court erred in failing to grant habeas corpus relief is also lacking in merit. “[Tjhe failure to establish a prima facie case at a preliminary hearing 'is clearly immaterial where at the trial the Commonwealth met its burden of proving the [offense] beyond a reasonable doubt.’ ” Commonwealth v. Troop, 391 Pa.Super. 613, 620, 571 A.2d 1084, 1088 (1990), quoting Commonwealth v. McCullough, 501 Pa. 423, 427, 461 A.2d 1229, 1231 (1983). Appellant’s claims that the trial court erred in denying a defense demurrer and a motion for directed verdict are equally without merit. See: Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975); Commonwealth v. Bastone, 321 Pa.Super. 232, 467 A.2d 1339 (1983). See also: Commonwealth v. Chapman, 255 Pa.Super. 265, 386 A.2d 994 (1978).

Appellant argues, however, that the trial court erred by allowing testimony from other trespassers who had been threatened by appellant or who had heard shots fired while on his land. The applicable law was stated by the Supreme Court of Pennsylvania in Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989), as follows:

Evidence of a defendant’s distinct crimes are not generally admissible against a defendant solely to show his bad character or his propensity for committing criminal acts, as proof of the commission of one offense is not generally proof of the commission of another. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 497 (1988). However, this general proscription against admission of a defendant’s distinct criminal acts is subject to numerous exceptions where special circumstances exist which render such evidence relevant for some legitimate evidentiary reason and not merely to prejudice the defendant by showing him to be a person of bad character. Some of the exceptions that this Court has recognized in the past as legitimate bases for admitting evidence of a defendant’s distinct crimes include (but are not limited to): (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one naturally tends to prove the others; (5) to establish the identity of the person charged with the commission of the crime on trial where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other; (6) to impeach the credibility of a defendant who testifies in his trial; (7) situations where defendant’s prior criminal history had been used by him to threaten or intimidate the victim; (8) situations where the distinct crimes were part of a chain or sequence of events which formed the history of the case and were part of its natural development (sometimes called “res gestae” exception). See Commonwealth v. Lark, supra 518 Pa. at 302, 543 A.2d at 497 and cases cited therein, and Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987).

Id., 521 Pa. at 177, 555 A.2d at 840. In the instant case, the evidence of prior threats and shootings was relevant to show (1) the identity of Renninger’s killer, (2) his intent, and (3) the motive for the killing. It was particularly compelling when coupled with evidence that the death dealing weapon had been owned by appellant and had been found in the basement of his home. The trial court did not err when it received evidence of appellant’s prior conduct toward trespassing motorcyclists.

Appellant also complains that the trial court inadequately instructed the jury regarding the purpose of the evidence relating to his prior conduct. However, appellant took no exception to this portion of the trial court’s charge, and this issue, therefore, has been waived. See: Pa.R.Crim.P. 1119(b). See also: Commonwealth v. Billa, supra, 521 Pa. at 181, 555 A.2d at 842; Commonwealth v. Barnhart, 290 Pa.Super. 182, 434 A.2d 191 (1981). Moreover, our review of the trial court’s charge suggests that the jury was properly instructed. The trial court was not required to advise the jury whether appellant’s prior acts were criminal and, if so, the precise identity of the offenses which he had committed.

Appellant next contends that the trial court erred when it refused to suppress the murder weapon found in the basement of his home. He argues that the search, although conducted pursuant to warrant, was illegal because it was not supported by probable cause.

In determining probable cause, Pennsylvania has adopted the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and followed in Commonwealth v. Gray [,] 509 Pa. 476, 503 A.2d 921 (1985). The test now utilized for analyzing warrants is as follows:
The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding] that probable cause existed.”
Commonwealth v. Melilli, 521 Pa. 405, 419, 555 A.2d 1254, 1261 (1989) (citation omitted), quoting Gates, supra 462 U.S. at 237-38, 103 S.Ct. at 2332.

Commonwealth v. Echevarria, 394 Pa.Super. 261, 265, 575 A.2d 620, 622 (1990), quoting Commonwealth v. Karns, 389 Pa.Super. 58, 60, 566 A.2d 615, 616 (1989). See: Commonwealth v. Breakiron, 524 Pa. 282, 571 A.2d 1035 (1990); Commonwealth v. Weidenmoyer, 518 Pa. 2, 539 A.2d 1291 (1988).

Before an issuing authority may issue a constitutionally valid search warrant he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search. Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582, cert. denied, 423 U.S. 999, 96 S.Ct. 432, 46 L.Ed.2d 376 (1975); Commonwealth v. D’Angelo, 437 Pa. 331, 263 A.2d 441 (1970). The requisite probable cause must exist at the time the warrant is issued and be based on facts closely related in time to the date of issuance. Commonwealth v. Tolbert, 492 Pa. 576, 424 A.2d 1342 (1981); Commonwealth v. Jackson, supra; Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973); Commonwealth v. McCants, 450 Pa. 245, 299 A.2d 283 (1973); Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973). If the district justice is presented with evidence of criminal activity at some prior time, it must also be established that the criminal activity continued up to the time of the request for the warrant in order to support a finding of probable cause.

Commonwealth v. Jones, 506 Pa. 262, 269, 484 A.2d 1383, 1387 (1984). See also: Commonwealth v. Burkholder, 388 Pa.Super. 252, 565 A.2d 472 (1989).

The affidavit in this case contained averments that Renninger had been shot on Bybel’s property with a .22 caliber rifle. It then recited the observations of eight named witnesses who had observed Bybel’s responses to trespassing motorcyclists on prior occasions. These responses included Bybel’s appearance with a rifle, his making threats to shoot trespassers, and, on occasion, the firing of shots. Finally, the affidavit recited that Bybel was known to own a .22 caliber rifle because police had confiscated it seven months earlier and had returned it to his granddaughter. Thus, the police had relied on the circumstances of the killing, Bybel’s known ownership of a gun of the same type from which the fatal shot had been fired, and a course of conduct on the part of Bybel which evidenced violence and threats of violence against trespassing motorcyclists. This established probable cause for the issuance of a warrant to search Bybel’s residence for the offending .22 caliber rifle.

Because the affidavit recited a continuing course of conduct leading up to the date of Renninger’s death, appellant’s contention that the warrant was issued on stale information must fail. See: Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981); Commonwealth v. Tolbert, 492 Pa. 576, 424 A.2d 1342 (1981). Appellant’s course of conduct was continuing and tended to identify him as the principal suspect in Renninger’s shooting. The information, moreover, had been supplied by eyewitnesses to appellant’s prior responses to trespassing motorcyclists. The trustworthiness of such information, therefore, could be presumed. See: Commonwealth v. Weidenmoyer, supra; Commonwealth v. Reel, 499 Pa. 381, 453 A.2d 923 (1982); Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981). Because the search warrant was based on more than adequate probable cause, the trial court did not err when it refused to suppress the rifle found as a result of a search of appellant’s basement.

On July 5, 1987, the day of the killing, police approached appellant, who owned the land on which Renninger’s body had been found, and asked him if he would come to the police station to discuss the incident. Appellant voluntarily accompanied police and, at the police station, was 'questioned for approximately twenty minutes. During that time, appellant said that he had been working on his land and had been around the house on the day of the shooting but had not seen or heard anything related thereto. At the end of the interview, appellant was taken back to his home.

On July 8, 1987, police again asked appellant to come to the police station. He initially refused, but later he appeared with his son and a lawyer. When police attempted to question him, however, he accepted the advice of counsel and declined to answer questions. Police then produced a search warrant for appellant’s home. Upon arrival at appellant’s home, he led police into the cellar, where he pointed to a rifle in the rafters and said, “there it is.” Appellant was arrested and charged with murder on July 10, 1987.

Appellant argues that his several statements to the police should have been suppressed because they were not preceded by Miranda warnings. The trial court found, however, that appellant had not been subjected to custodial interrogation on either July 5 or July 8. Because there had been no custodial interrogation, the court held, Miranda warnings were unnecessary. We agree with this analysis.

Miranda warnings are necessary only on those occasions when a suspect is undergoing actual “custodial interrogation.” The fact that a defendant was the focus of the investigation is a relevant factor in determining whether he was “in custody.” However, the fact that a police investigation has focused on a particular person no longer automatically requires Miranda warnings.

Commonwealth v. Fento, 363 Pa.Super. 488, 492, 526 A.2d 784, 786 (1987). See also: Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985), cert. denied, 475 U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349 (1986); Commonwealth v. Smith, 382 Pa.Super. 288, 555 A.2d 185 (1989). “[PJolice detentions only become ‘custodial’ when under the totality of the circumstances the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of formal arrest.” Commonwealth v. Ellis, 379 Pa.Super. 337, 356, 549 A.2d 1323, 1332 (1988). See also: Commonwealth v. Douglass, 372 Pa.Super. 227, 238-239, 539 A.2d 412, 418 (1988) (plurality opinion).

Among the factors the court utilizes in determining whether the detention is custodial or investigative are: the basis for the detention; the duration; the location; whether the suspect was transported against his will, how far, and why; whether restraints were used; the show, threat, or use of force; and the methods of investigation used to confirm or dispel suspicions.

Commonwealth v. Haupt, 389 Pa.Super. 614, 625-626, 567 A.2d 1074, 1078 (1989). See also: Commonwealth v. Douglass, supra 372 Pa.Super. at 245, 539 A.2d at 421.

In reviewing the trial court’s finding that appellant had not been subjected to custodial interrogation, we must determine whether the finding was supported by competent evidence. “In making this determination, we 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.” Commonwealth v. Dillon, 386 Pa.Super. 236, 241, 562 A.2d 885, 888 (1989), allocatur granted, 524 Pa. 595, 568 A.2d 1245 (1989). See: Commonwealth v. Lark, 505 Pa. 126, 129, 477 A.2d 857, 859 (1984).

On both occasions, appellant’s presence at the police station was voluntary. On neither occasion was he placed under arrest or subjected to force or threat of force. The first interrogation continued for only twenty (20) minutes, and on the second occasion appellant was accompanied by his lawyer. At his home during execution of the search warrant, appellant’s counsel was also present. Under the totality of these circumstances, the trial court could properly find that appellant was not under arrest or subject to coercion from which he could reasonably believe that he was in custody. See: Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Douglass, supra 372 Pa.Super. at 238-239, 539 A.2d at 418; Commonwealth v. Haggerty, 495 Pa. 612, 435 A.2d 174 (1981); Commonwealth v. Benson, 317 Pa.Super. 139, 463 A.2d 1123 (1983). See also: Commonwealth v. Haupt, supra; Commonwealth v. Ellis, supra. Cf. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (suspect who voluntarily accompanies police to station house for questioning was not “in custody”). Because appellant was not subjected to custodial interrogation, Miranda warnings were unnecessary, and the trial court properly refused to suppress statements made by appellant on these occasions.

When the trial started, appellant was charged, in a separate count of the information, with involuntary manslaughter. After the evidence had been presented and before the case was submitted to the jury, the Commonwealth asked the trial court to “dismiss” the charge of involuntary manslaughter. The defense objected and specifically requested the court to instruct the jury that involuntary manslaughter was a possible verdict. The trial court held that there was no evidence to support a finding of involuntary manslaughter and refused to charge that a finding of involuntary manslaughter was possible. Although the court refused to charge on a reckless or grossly negligent homicide, the court nevertheless instructed the jury that it could find that Renninger’s death had been caused by accidental misadventure. Appellant argues that the court erred when it refused to instruct the jury on involuntary manslaughter. We are constrained to agree.

The rule pertaining to the necessity for an involuntary manslaughter charge has been settled by recent Supreme Court decisions. In Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980), the Court held that “in a murder prosecution, an involuntary manslaughter charge shall be given only when requested, and where the offense has been made an issue in the case and trial evidence reasonably would support such a verdict.” Id., 490 Pa. at 190, 415 A.2d at 407. Subsequent decisions have followed this rule. See: Commonwealth v. Yarris, 519 Pa. 571, 549 A.2d 513 (1988) (involuntary manslaughter charge unnecessary where defendant contended that he had not killed the victim); Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371 (1986) (involuntary manslaughter charge unnecessary where evidence overwhelmingly indicated intentional killing); Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980) (involuntary manslaughter charge unnecessary where homicide occurred during armed burglary and robbery); Commonwealth v. Jones, 391 Pa.Super. 292, 570 A.2d 1338 (1990) (involuntary manslaughter charge unnecessary where evidence overwhelmingly indicated intentional killing); Commonwealth v. Johnson, 347 Pa.Super. 93, 500 A.2d 173, 179 (1985) (involuntary manslaughter charge unnecessary where homicide occurred during armed robbery); Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985) (involuntary manslaughter charge unnecessary where ample evidence of premeditated intentional killing). Cf. Commonwealth v. Pritchett, 320 Pa.Super. 359, 467 A.2d 364 (1983) (involuntary manslaughter charge unnecessary where, although defendant indicted on involuntary manslaughter, charge withdrawn pre-trial and not pursued thereafter and present state of law would not permit conviction on withdrawn charge).

In the instant case, appellant had been specifically charged, inter alia, with involuntary manslaughter and had been actually tried on such a charge. It was not until all the evidence had been presented and in an effort to avoid a possible finding of involuntary manslaughter by the jury that the prosecution requested the court to withdraw the involuntary manslaughter charge from the jury’s consideration. The defense objected vehemently and made repeated requests for an instruction on involuntary manslaughter. On review, therefore, the only issue to be determined is whether the evidence, viewed in a light most favorable to the defendant, would have permitted a finding that appellant’s crime was involuntary manslaughter. Commonwealth v. Terrell, 482 Pa. 303, 393 A.2d 1117 (1978); Commonwealth v. Draxinger, 345 Pa.Super. 554, 498 A.2d 963 (1985).

Appellant was an eighty-one year old defendant, who offered no evidence in defense of the charges against him. His lawyer argued, in view of the trial court’s ruling, that if the jury found that appellant had fired the shot which killed Renninger, it should find the killing to be accidental. He contended that appellant had been harassed—perhaps even beaten—by motorcyclists who had trespassed on his land. The land was uneven and heavily wooded. On the land, about one hundred yards from the house, was a lane over which the motorcycles, with engines screaming, would be driven by their operators. On at least one prior occasion appellant had threatened to shoot a motorcyclist, and on others he was known to have fired warning shots from his .22 caliber rifle. Until the death of Renninger, no one had ever been struck by bullets fired by appellant. Indeed, there was no sight on the rifle. Thus, a jury could have found, as his counsel argued to the court, that the shot which killed Renninger was fired from a distance as great as one hundred yards, through the woods, and struck a motorcyclist moving at a high rate of speed over uneven terrain. A jury might also have found that the shot was intended, as shots had been intended in the past, as a warning and that it had accidentally gone astray. The Commonwealth’s decision to charge appellant with involuntary manslaughter suggests that it was not unaware of this possibility.

Under these circumstances, we conclude that it was error to refuse appellant’s request for a charge on involuntary manslaughter. See: Commonwealth v. Draxinger, supra (where any version of evidence in homicide trial supports a verdict of involuntary manslaughter, charge on involuntary manslaughter must be given if requested). The error is magnified by the trial court’s decision to instruct the jury on accidental misadventure. Inasmuch as involuntary manslaughter is distinguishable from accidental misadventure primarily by conduct which is reckless or grossly negligent, an involuntary manslaughter charge was warranted. When the trial court refused appellant’s request for a charge on involuntary manslaughter it erred.

The trial court also erred when it allowed the prosecution to introduce evidence that a loaded .22 caliber rifle had been removed by police from appellant’s car following a minor accident which had occurred seven (7) months prior to the shooting. The evidence was irrelevant to the identity of Renninger’s killer and the circumstances under which he had died. The evidence was also unfairly prejudicial to the defendant, for it depicted him as a “gun happy” old man who was unable to drive safely.

The Commonwealth argues that it was relevant because the gun thereafter had been delivered to appellant’s granddaughter and thus had been available to appellant at the time of the shooting. In fact, however, there was no evidence that the offending gun had been given to appellant by his granddaughter and, in any event, the gun had been found in appellant’s basement following the shooting, where appellant identified it for the police. In view thereof, the seizure of the gun by police following an accident seven months earlier added nothing to the Commonwealth’s case against appellant except to discredit him unfairly.

“Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue or when to some degree advances the inquiry and thus has probative value.” Commonwealth v. Moore, 389 Pa.Super. 473, 482, 567 A.2d 701, 706 (1989). See also: Commonwealth v. Shain, 324 Pa.Super. 456, 471 A.2d 1246 (1984). “The determination of relevancy issues must necessarily be left primarily to the discretion of the trial court, whose rulings thereon will not be disturbed unless there has been an abuse of discretion.” Commonwealth v. Gibbs, 387 Pa.Super. 181, 186-187, 563 A.2d 1244, 1247 (1989). See also: Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Jackson, 336 Pa.Super. 609, 619-620, 486 A.2d 431, 437 (1984). The fact that an issue of relevancy involves an exercise of discretion by the trial court, however, does not place the trial court’s ruling thereon beyond appellate review. See: Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) (evidence of victim’s family life was irrelevant and prejudicial, and its admission in first degree murder prosecution was error); Commonwealth v. Haight, 332 Pa.Super. 269, 481 A.2d 357 (1984), aff'd, 514 Pa. 438, 525 A.2d 1199 (1987) (evidence of defendant’s poverty was irrelevant and its admission was error where it may have discredited defendant and influenced jury in reaching its verdict); Commonwealth v. Krajci, 283 Pa.Super. 488, 424 A.2d 914 (1981) (admission of irrelevant evidence which is prejudicial to accused is error). In the instant case, we conclude that the trial court’s ruling was an abuse of discretion. The evidence that a loaded rifle had been found in appellant’s car following an accident which had occurred seven months earlier was both irrelevant and unduly prejudicial.

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

      . Bybel was also found guilty on two counts of aggravated assault.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: CAVANAUGH, Judge.

license: Public Domain

text:
    581 A.2d 1388
    Marie D. ZEHNER & George Zehner, H/W, Appellants, v. WILKINSON MEMORIAL UNITED METHODIST CHURCH, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1990.
    Filed Nov. 5, 1990.

      Larry H. Lefkowitz, Philadelphia, for appellants.
    Keith D. Heinold, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and HUDOCK, JJ.
   CAVANAUGH, Judge.

This is an appeal from an order granting summary judgment in favor of appellee, Wilkinson Memorial United Methodist Church. For the reasons set forth below we affirm.

Appellant, Marie Zehner was injured when, while leaving Christmas services at appellee church, she fell down the steps leading to the vestibule. She asserts that the church was negligent and that this negligence was the cause of her fall. The negligence alleged was the failure of the board of directors to provide adequate lighting, handrails and diagonal stripes on the stairs. Mrs. Zehner admits that, at the time the board voted on the addition of these items, she was a member of that board. She argues however that at the time of her fall she was on church property as a member of the general public and as such is entitled to recover as a member of the general public under Restatement Torts (2d) § 344. Appellant argues that she was a member of the general public at the time of her fall and not “actively engaged in a particular association project.” She wishes to have her status on the premises at the time of injury determine her ability to bring this action.

The law in Pennsylvania is clear:

... the members of an unincorporated association are engaged in a joint enterprise, and the negligence of each member in the prosecution of that enterprise is imputable to each and every other member, so that the member who has suffered damages ... through the tortious conduct of another member of the association may not recover from the association for such damages.

Plasterer v. Paine, 375 Pa.Super. 407, 411, 544 A.2d 985, 987 (1988) (citing Anno. 14 A.L.R.2d 473-474.). The question is not one of appellant’s status on the property or the duty owed her, but rather her capacity to sue an unincorporated association to which she belongs. The well settled rule in Pennsylvania is that members of unincorporated associations can not sue the association in tort. This rule is not based on their status on the premises at any given moment but on their membership in the association. In Plasterer, supra, this court stated:

... even though the two leading Supreme Court cases “arise out of circumstances where the injured party was actively engaged in a particular association project,” it is apparent from the cases cited by the Supreme Court in its opinion that its decisions did not rest on such narrow ground.

Id., 375 Pa.Superior Ct. at 413, 544 A.2d at 987-988. In DeVillars v. Hessler, 363 Pa. 498, 70 A.2d 333 (1950), a member of a fraternal group was injured when the propane steam table she was attempting to ignite exploded. In arriving at its conclusion that she could not recover from the association, the Court cited Koogler v. Koogler, 127 Ohio St. 57, 186 N.E. 725 (1933). In Koogler, a member of a fraternal association was walking on the street near a building owned by the association. The fire escape broke away from the building and fell on him. The court held that his status as a member prevented him from recovering against the association.

The fact that members of the general public were present or allowed to be present does not affect the relationship of appellant to the unincorporated association. Here, appellant was a member of the association and thus any negligence of her fellow members is imputed to her and she cannot recover in tort. This is particularly true in this case where appellant sat on the board of directors during the very meeting at which the negligence is alleged to have occurred.

As for appellant’s argument that we should create an exception to this rule for members who qualify as “invitees” under Restatement Torts (2d) § 332, we reiterate what we said in Plasterer, supra, "... like a trial court, this Court is not permitted to usurp the function of the Pennsylvania Supreme Court. Therefore, the law on the imputed negligence of unincorporated associations will remain the same until the Pennsylvania Supreme Court addresses the issue.” Id., 375 Pa.Superior Ct. at 416, 544 A.2d at 989.

Appellant was a member of the church, an unincorporated association, at all times material to this case. As a member of the association and especially as a member of the board of directors, the decision not to place a handrail, lights, and stripes on the stairway is attributed to her. She cannot recover in tort because any negligence of the board is attributed to her.

The order granting the appellee’s motion for summary judgment is hereby affirmed.


author: OLSZEWSKI, Judge.

text:
    581 A.2d 1390
    COMMONWEALTH of Pennsylvania v. Kenneth Eugene WELLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1990.
    Filed Nov. 5, 1990.

      Nancy A. Patterson, New Bloomfield, for appellant.
    Gloria J. McPherson, Asst. Dist. Atty., Shermansdale, for Com., appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   OLSZEWSKI, Judge.

This is an appeal from a judgment of sentence rendered following a jury conviction of appellant for furnishing malt and brewed beverages to minors, a misdemeanor of the third degree. Appellant’s sole argument is that the Commonwealth failed to prove that the beverage furnished to the minors was a malt or brewed beverage as defined in § 6310.6 of the Crimes Code. We believe there was suffident evidence to sustain the jury's verdict and affirm the judgment of sentence.

Upon review of the record, it appears that during investigation of an early morning automobile accident involving two minors, a Pennsylvania State Police Trooper learned that the two minors and one other companion, also a minor, had given appellant money for two cases of Coors beer. At trial, the minors testified that appellant had in fact purchased the beer for them. The state police officer testified that as a result of his investigation, he obtained seven cans of Coors Lite beer from one of the minors. This beer was presented as an exhibit at trial by the Commonwealth.

In determining the sufficiency of the evidence to support a finding that the beverage supplied to the minors was a malt or brewed beverage as defined in the statute, we apply the general standard of review and decide

whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Tau Kappa Epsilon, 385 Pa.Super. 247, 251, 560 A.2d 786, 789 (1989).

Section 6310.1 of the Crimes Code provides, in pertinent part:

(a) Offense defined—Except as provided in subsection (b), a person commits a misdemeanor of the third degree if he intentionally and knowingly furnishes, or purchases with the intent to sell or furnish, any liquor or malt or brewed beverages to a person who is less than 21 years of age.

Section 6310.6 defines malt or brewed beverages as:

Any beer, lager beer, ale, porter or similar fermented malt beverage containing 0.50% or more of alcohol by volume, by whatever name such beverage may be called.

Appellant contends that the Commonwealth failed to prove every element of the above offense in that no evidence was offered concerning the alcohol content of Coors beer. Appellant relies on Commonwealth v. Erney, 212 Pa.Super. 174, 239 A.2d 818 (1968), where the Superior Court held that the testimony alone of minors that they had been served beer was insufficient to support a conviction under § 493(1) of the Liquor Code.

The Erney case, supra, is distinguishable from the present case because in Erney, the only evidence presented was the testimony of the minors that the defendant had served them beer. In the case before us, the record indicates that not only did the minors testify that appellant furnished beer to them, but an investigating state police trooper also testified that he obtained from the minors seven cans of beer which appellant had given them. Additionally, these seven cans of Coors beer were presented as an exhibit at trial. Had the seven cans of beer been properly offered and received into evidence at trial, then the sufficiency of the evidence presented could not be questioned, as we take judicial notice of the fact that Coors Lite beer is a malt or brewed beverage satisfying the statutory definition.

More recently, in Commonwealth v. Tau Kappa Epsilon, 385 Pa.Super. 247, 560 A.2d 786 (1989), we concluded that the Commonwealth’s evidence was sufficient to support the jury’s finding that appellants served malt or brewed beverages to minors in violation of § 493(1) of the Liquor Code. In that case, appellants, fraternities at Penn State University, were found guilty of furnishing beer to minors in violation of § 493(1) of the Liquor Code. As part of an investigation, members of the State College Bureau of Police Services made visits to fraternity houses during social functions and observed beer being served to minors. The investigators testified at trial to that effect, in addition to the testimony of the minors. We distinguished the holding in Erney on the basis of this additional testimony of the investigating officers and held that the Commonwealth was not required to perform a chemical test to establish the exact alcohol content of the beer. The testimony of the minors in conjunction with that of the investigating officers was sufficient to support the jury’s finding that appellants served alcohol to minors.

Likewise, in the present case, the testimony of the minors, along with the testimony of the state police trooper, is sufficient to support the jury’s conclusion that appellant furnished malt or brewed beverages to minors in violation of 18 Pa.C.S.A. § 6310.1.

Accordingly, the judgment of sentence is affirmed.

BECK and HOFFMAN, JJ., concur in the result.

      . 18 Pa.C.S.A. § 6310.1.

      . This section, at 47 P.S. § 4-493(1), as amended, provides that it is unlawful: (1) "For any ... person to sell, furnish or give any liquor or malt or brewed beverages ... to any minor....” Malt or brewed beverages is defined in the Liquor Code identical to its definition in the Crimes Code. 47 P.S. § 1-102.


author: PER CURIAM:

text:
    582 A.2d 1
    COMMONWEALTH of Pennsylvania v. Richard TULLIUS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 23, 1990.
    Filed Sept. 19, 1990.
    Reargument Denied Nov. 14, 1990.

      Stanton D. Levenson, Pittsburgh, for appellant.
    Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   PER CURIAM:

This is a direct appeal from the judgment of sentence of two years probation imposed following appellant’s conviction at a bench trial of simple assault and harassment. We affirm.

The facts in this matter, as revealed by the record, are as follows. On February 14, 1989, appellant, Richard Tullius, a sixth grade teacher in the McKeesport Area School District, was on hall patrol during the 11:35-11:50 a.m. lunch period at Cornell Middle School. Albert Stinson, age thirteen, a sixth grade student, was walking behind a large group of students on his way to class from the cafeteria. Appellant shouted down the hall to Albert to move to the right side of the hallway, in keeping with school policy when hallways are congested, as they were that day. When Albert did not comply, appellant shouted at him again. When Albert still ignored appellant’s command, appellant stepped in front of the child and ordered him to walk to the end of the hall and return on the right side of the corridor. While Albert testified that he followed the instruction, appellant testified that Albert walked down the hall, but returned on the wrong side again. Appellant alleged he sent Albert down the hallway again, and although the child started back on the wrong side, he eventually moved to the right.

As Albert proceeded to his classroom, appellant testified that he told him to “stop acting like a darn fool,” whereupon Albert retorted, “I’m not a darn fool; you are.” Notes of Testimony (“N.T.”), 8/22/89, at 61. Albert testified that appellant called him an obscene name to which the boy responded, “[D]on’t cuss at me.” Id. at 18.

Appellant then attempted to take hold of Albert. Albert testified that appellant grabbed his arms and slammed him against the lockers a number of times, while appellant claimed he just pushed the child back against them to restrain him. Diane Easly, Albert’s teacher, observed the altercation and sent another pupil to summon the principal. Ethel Balas, the assistant principal, appeared and told appellant to release the child, but appellant failed to comply with this directive. Balas again ordered appellant to release Albert, and this time appellant complied. Mrs. Balas took Albert to the office where he was examined by the guidance counselor. Bruises were found on Albert’s arms, ear, back, and neck. Mrs. Balas then summoned the school nurse, Jo Ann Rogers, who examined Albert and observed the same injuries.

Appellant contends that the evidence was insufficient to support the conviction for assault in that the Commonwealth failed to prove beyond a reasonable doubt that his use of force was not justified under 18 Pa.C.S. § 509(2). Appellant asserts that while Albert sustained bruises, there was insufficient evidence that appellant intended to cause extreme pain, mental distress, or gross degradation.

In reviewing a challenge to the sufficiency of the evidence we determine

whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Akers, 392 Pa.Super. 170, 181, 572 A.2d 746, 751 (1990), quoting Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984). It is within the province of the fact finder to determine the weight to be given to each witness’s testimony and to believe all, part, or none of the evidence. Commonwealth v. Carbone, 524 Pa. 551, 574 A.2d 584 (1990); Commonwealth v. Parker, 387 Pa.Super. 415, 564 A.2d 246 (1989). We address the arguments of the parties and evaluate the sufficiency of the evidence with these standards in mind.

Appellant was convicted of simple assault, which requires the actor to attempt to cause or intentionally, knowingly, or recklessly causing bodily injury to another, 18 Pa.C.S. § 2709, and harassment, a summary offense, which requires that a person, with intent to harass, annoy or alarm another, strike, shove, kick or otherwise subject another to physical contact or threaten to do the same. 18 Pa.C.S. § 2709. Bodily injury is defined by 18 Pa.C.S. § 2301 as the “impairment of physical condition or substantial pain.” In Commonwealth v. Ogin, 373 Pa.Super. 116, 121, 540 A.2d 549, 552 (1988), we stated, “The existence of substantial pain may be inferred from the circumstances surrounding the use of physical force even in the absence of a significant injury.” Further, in Commonwealth v. Jorgenson, 341 Pa.Super. 550, 492 A.2d 2 (1985), rev’d on other grounds, 512 Pa. 601, 517 A.2d 1287 (1986), we found that striking the victim twice across the face was sufficient to support a conviction for simple assault. See also Commonwealth v. Bryant, 282 Pa.Super. 600, 608, 423 A.2d 407, 411 (1980) (simple assault occurred when defendant threw victim to the ground).

The defense of justification provides, in pertinent part:

§ 509. Use of force by persons with special responsibility for care, discipline or safety of others.
The use of force upon or toward the person of another is justifiable if:
(2) The actor is a teacher or person otherwise entrusted with the care or supervision for a special purpose of a minor and:
(i) the actor believes that the force used is necessary to further such special purpose, including the maintenance of reasonable discipline in a school, class or other group, and that the use of such force is consistent with the welfare of the minor; and
(ii) the degree of force, if it had been used by the parent or guardian of the minor, would not be unjustifiable under paragraph (l)(ii).

Section 509(2)(i) and (ii) involve independent requirements. For appellant’s actions to have been justified, he must have complied with both standards. Further, in assessing the propriety of the degree of force utilized, § 509(2)(ii) requires that the fact finder determine whether a parent or guardian would have been justified in utilizing that same degree of force. 18 Pa.C.S. 509(l)(ii) provides:

(ii) the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.

We disagree with appellant’s arguments that Albert’s injuries did not substantiate serious bodily injury, extreme pain, mental distress, or gross degradation. Appellant premises this argument on the following facts: the boy did not cry, the bruises did not bleed, and there was no evidence that Albert sought medical treatment. Initially, we reject appellant’s contention that the child could not have suffered mental distress or gross degradation because Albert’s emotional condition after the incident was “very quiet.” This assessment is based on the testimony of Jo Ann Rogers, the school nurse. Ms. Rogers, who was at another school when the incident occurred, was summoned by Mrs. Balas and examined Albert ten to fifteen minutes after the assault. We attach no significance to the fact that Ms. Rogers described Albert as quiet at that time, especially in light of eyewitness testimony that Albert was struggling and crying out during the incident.

Appellant also contends that the evidence was insufficient to prove that Albert’s punishment exceeded the parameters of § 509(2). We disagree. We find the testimony of the two objective eyewitnesses most revealing on this issue. The assistant principal, Mrs. Balas, testified as follows:

A. I saw Mr. Tullius holding Albert Stinson against a locker, and as I went through the door, he banged him against the locker.
I went over at that time and took a hold of Albert and I told Mr. Tullius to let Albert go, I had him.
Mr. Tullius did not.
Q. What do you mean he did not let him go?
A. He did not let him go at that time, and I asked him again to let Albert go; I told him, I have him.

N.T., 8/22/89, at 39-40 (emphasis added).

Mrs. Easly, who observed the assault for a longer period, testified as follows:

A. I saw Mr. Tullius coming around the corner, holding Albert’s arms, upper arms.
Q. How was he holding Albert?
A. He was to his left and walking him on down the hall with his arms—his hands on his upper arms.
Q. So he had one hand on each arm?
A. Yes.
Q. What did you notice after that?
A. Well, I turned to look in my room and when I turned back to see what was happening, Mr. Tullius pushed Albert up against the lockers.
Q. When you say “pushed him up against the lockers”; was that a hard or soft push?
A. Forcible.
Q. Was Albert up against the locker this time?
A. Yes.
Q. Then what happened?
A. Ahh—Mr. Tullius—at that point, I turned around and told a student to go and get the principal and Mr. Tullius got hold of his arm again and bounced him up against the locker.
Q. And did that make a loud or soft sound?
A. Loud.
Q. And then what did Mr. Tullius do after that?
A. Held him up against the locker, restrained him.
Q. Could you hear what Mr. Tullius was saying to Albert?
A. No, I didn’t.
Q. What do you remember happened next?
A. I turned, the student came back from the office. I turned to ask him if someone was coming and then I turned back to look and Mr. Tullius was still holding him there and the principal and a counselor were coming up the stairs. I could see through the stairwell because there is glass.
At that point, I turned to look again and as the counsel- or and principal were coming around the corner, I—I guess Albert had gotten away or moved away again because Mr. Tullius bounced him up against the locker again.
They were—they were coming around the corner.
Q. And at that time, when he pushed him up against the locker, did it make a loud or soft sound?
A. Loud.

N.T., 8/22/89, at 27-29.

According to the witnesses, appellant, who is six feet tall and weighs 195 pounds, N.T., 8/22/89, at 71, slammed a thirteen-year-old boy weighing between 110 and 115 pounds against lockers at least three times, held him there, and initially refused to release him when ordered to do so by his supervisor. Clearly, appellant’s actions in slamming this child against the lockers repeatedly while gripping his arms with sufficient force to cause bruising and swelling, N.T., 8/22/89, at 46-47, was not justified behavior as defined by 18 Pa.C.S. § 509(2). While no teacher must endure defiance and provocation, appropriate responsive behavior must be utilized and modeled. We believe that the evidence is sufficient to support appellant’s conviction for simple assault.

In this Commonwealth, a teacher may inflict reasonable corporal punishment upon a student without incurring criminal liability. There is a dearth of appellate case law which has established parameters and interpreted the extent of justifiable punishment encompassed by 18 Pa.C.S. § 509(2). In applying this section, we believe that the fact finder must assess whether the teacher believed the use of force was necessary to maintain reasonable discipline and whether it was consistent with the child’s welfare. Thus, in the instant case the trial court had to resolve a question of fact based upon, and in consideration of, the child’s misconduct, the nature and severity of the punishment inflicted, the age and size of the child and alternative means of discipline that were available. Compare Commonwealth v. Ogin, supra, 373 Pa.Super. at 127, 540 A.2d at 555 (“[W]hen applying the justification statute, the court should focus not only on the degree of force exerted by the parent but also on the age and the physical and mental condition of the child who has been disciplined.”)

In light of our scope of review, we find that appellant’s conviction is supported by the evidence.

Judgment of sentence affirmed.


author: CIRILLO, President Judge: BROSKY, Judge, FORD ELLIOTT, Judge,

text:
    582 A.2d 4
    COMMONWEALTH of Pennsylvania v. Barry Lee MILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 15, 1990.
    Filed Nov. 5, 1990.

      Franklin D. Roush, Jr., Johnstown, for appellant.
    Carolann A. Young, Asst. Dist. Atty., Somerset, for Com., appellee.
    Before CIRILLO, President Judge, and FORD ELLIOTT and BROSKY, JJ.
   CIRILLO, President Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Somerset County on August 8, 1989 against appellant Barry Lee Miller. We reverse and remand for a new trial.

The following is a summary of the relevant facts: Miller was charged with corruption of minors and indecent assault with respect to his two nieces, R.M. and H.M. The cases were consolidated for trial. Prior to trial, defense counsel attempted to discover the contents of reports prepared by the Erie Rape Crisis Center on R.M. and H.M. These reports were in the possession of the district attorney for the Commonwealth. The district attorney provided all the information that the defense had requested with the exception of the reports. In the hope of obtaining possible exculpatory evidence, Miller filed a motion to compel discovery pursuant to Pa.R.Crim.P. 305(A), requesting that psychological reports for both victims be disclosed to the defense. The trial court conducted an in camera review of the reports and Miller’s motion was denied on October 11, 1988. Consequently, Miller was denied access to these reports. Following a jury trial Miller was convicted of both charges with respect to R.M. A mistrial was granted with respect to the charges concerning H.M. Miller filed timely post-trial motions which were denied. On August 8, 1989, Miller was sentenced to a term of imprisonment of not less than four months and not more than twenty-three months, and directed to pay the costs of prosecution and five hundred dollars to the office of the clerk of courts of Somerset County. Miller filed a petition for modification of sentence which was denied by the trial court on August 29, 1989. This appeal followed.

Miller raises six issues for our consideration:

1. Whether the evidence was insufficient to sustain a verdict of guilty on the counts of corruption of minors and indecent assault where only the testimony of R.M. was given to substantiate the allegations in the information.
2. Is the verdict against the weight of the evidence.
3. Whether the defendant was denied access to possible exculpatory evidence as well as evidence useful in cross-examination of the witness, R.M., when the trial court denied access to a psychological report on the alleged victim.
4. Whether or not the trial court committed an error in preventing the defendant from placing into evidence accusations by the alleged victim, R.M., against a neighbor of her grandfather accusing said neighbor of similar activities as she accused the defendant.
5. Whether or not the court improperly refused to grant a mistrial in the case of R.M. after a mistrial had been granted in the case involving H.M.
6. Did the court commit an error in refusing to grant the demurrer of the defense on the basis of the Commonwealth failing to meet the burden of proof where [the] sole evidence offered by the Commonwealth was testimony by R.M., which was confused, [was] poor[ly] recalled] and thus cast grave doubt as to the alleged act.

We find Millers’ third argument to be meritorious and hence only address that issue.

In his third issue, Miller claims that because he was denied access to a psychological report prepared by the Erie Rape Crisis Center on R.M., he was precluded from obtaining evidence that might have exculpated him and was prevented from using the information contained in the report to cross-examine R.M. Miller concedes that the trial court indicated that the psychological reports contained no exculpatory information but maintains, nonetheless, that the reports may have contained useful information regarding the motives and mental abilities of the victims. Miller contends that the trial court abused its discretion by denying him access to these reports. We agree.

The issue presented by Miller is controlled by our supreme court’s decision in Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989). There, defendant Lloyd sought to discover records of the victim’s psychotheraputic treatment rendered by Psychiatric Institute of the Medical College of Eastern Pennsylvania. The trial court conducted an in camera review of the records, determined that Lloyd’s allegations that the victim was delusional and/or hallucinatory were unfounded, and denied defense counsel access to the records. The supreme court held that “under the confrontation clause of the Pennsylvania Constitution, [Lloyd] ... was denied his right to confrontation when his attorney was denied access to the contents of the victim’s psychotheraputic records.” Id., 523 Pa. at 431, 567 A.2d at 1359. The court further held that “the right to inspect these records is also mandated by the compulsory process clause of the Pennsylvania Constitution.” Id.

The court reasoned that Lloyd was entitled to view the records in camera so that his attorney might adequately prepare Lloyd's defense. The court acknowledged that the Commonwealth has an interest in preserving the confidentiality of a victim’s treatment by her psychotherapist, but that interest is overridden by a defendant’s right to confront and cross-examine the witness testifying against him. The information contained in a victim’s psychological treatment records may, therefore, provide the defendant with a defense which would be unavailable to him without such access. The court thus held that Lloyd’s counsel was entitled to see the hospital records in an in camera proceeding, and stated that the trial court may issue orders to insure confidentiality. Id., 523 Pa. at 432, 567 A.2d at 1360.

Applying the Lloyd holding to the present case, we find that Miller was denied his right under the confrontation clause and compulsory process clause of the Pennsylvania Constitution when his attorney was denied access to the contents of the report prepared by the Erie Rape Crisis Center on the victim, R.M. Miller, like Lloyd, is entitled to view the instant report in order to prepare his defense against the charges made against him and to knowledgeably confront his adverse witnesses through cross-examination. See Lloyd, supra; see also Commonwealth v. Carillion, 380 Pa.Super. 458, 552 A.2d 279 (1988) (Cirillo, P.J., concurring) (“the Commonwealth’s interest in the confidentiality of the information contained in the Children’s Services’ file must yield to the Commonwealth’s greater interest in promoting and protecting the defendant’s constitutional right to confront and cross-examine witnesses against him----[and therefore,] I would have recogniz[ed] a higher level of protection under our state constitution, and allowed] defense counsel complete access to the ... file”).

In applying the holding of Lloyd to the present case we are recognizing that our constitution places limits on the discretion of the trial court to grant or to deny a defendant’s motion for pre-trial discovery of material in the Commonwealth’s file. See Pennsylvania Rule of Criminal Procedure 305(B)(2). When the nature of the evidence is such, however, that denying defendant the opportunity to review it in effect denies him his constitutional rights to confrontation and compulsory process, he is entitled to view that evidence, regardless of whether it is in the hands of the Commonwealth or a private institution. As our supreme court stated in Commonwealth v. Grayson, 466 Pa. 427, 353 A.2d 428 (1976),

Whether the statements ... would have been helpful to the defense is not a question to be determined by the prosecution or by the trial court. They would not be reading the statements with the eyes of a trial advocate engaged in defending a client. Matters ... may appear innocuous to some, but have great significance to counsel viewing the statements from the perspective of an advocate for the accused about to cross-examine a witness.

Id., 466 Pa. at 429, 353 A.2d at 429. Consequently, we conclude that constitutionally guaranteed rights may not be abridged by a rule of procedure which vests the trial court with the discretion to deny the defendant’s request for information in the possession of the Commonwealth merely because the trial court has concluded that such information is not material to the preparation of his defense.

Judgment of sentence is vacated and a new trial is ordered.

Brosky, J., joins opinion by CIRILLO, President Judge, and files a concurring opinion by BROSKY, J.

FORD ELLIOTT, J., dissents.

BROSKY, Judge,

concurring.

I join the fine opinion authored by our colleague, President Judge Cirillo, but write separately to express one thought.

Our colleague, Judge Ford Elliott, expresses concern that our decision today renders illusory the discretionary judicial review regarding discoverability of the contents of the Commonwealth’s file under Rule 305. As I understand her opinion, she is concerned that the entire Commonwealth file will now, as a result of our decision, be subject to discovery. To be sure, it would seem that the entire Commonwealth file already is, and has been, subject to discovery and discoverable under the auspices of Rule 305. However, discoverability is also subject to the limitations set forth in Rule 305; that limitation being a discretionary review by the trial court of the defendant’s assertion that the documents are material to the preparation of a defense. Be that as it may, I do not view our decision today as diminishing the court’s role in the Rule 305 process, as outlined in the rule, with the notable exception of the specific subject matter at issue here. That is to say, I do not view this decision as establishing the proposition, nor am I lending the support of my vote in this case to a proposition, that the review process in general, as set forth in Rule 305, has been eliminated and an absolute right of review substituted. In short, I do not believe that either Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989), or this case will allow a defense counsel an opportunity to peruse the Commonwealth’s file prior to trial in search of information or statements counsel believes may be useful in establishing a defense.

However, with regard to the psychological reports in question, the right of review has been modified by the decision in Lloyd. Appellant made a specific request to review the psychological records of the alleged victims, and asserted error when the court refused to allow defense counsel an opportunity to review them. The Supreme Court in Lloyd, apparently unpersuaded by this court’s position set forth in Commonwealth v. Carrilion, 380 Pa.Super. 458, 552 A.2d 279 (1988), indicates that there is an absolute right to have defense counsel inspect these types of documents, and, as Judge Ford Elliott also surmises in her Dissenting Opinion, the trial court, under Lloyd, now appears to have no authority or discretion to limit the defendant’s review through its own in camera procedure. As such, it appears to me, the assertion of error was well taken.

But this absolute privilege of review set forth in Lloyd, as I read that case, extends only to the type of documents in question in Lloyd, which are also of the kind found in the present case. I do not see Lloyd as applying to everything contained in the Commonwealth’s file. I also do not see as viable an approach that would change the standard of review or right of defense counsel to review these documents based upon the manner that the request was made, or turning upon who had possession at the time the request was made. By this I mean that I do not perceive the fact that the request in this case was made in a Rule 305 motion, when the Commonwealth possessed the files in question, whereas in Lloyd a subpoena was served on the hospital in possession, as somehow conceding the absolute reviewability of these documents established in Lloyd and in its place substituting the discretionary standard set forth in the rule. I believe that the absolute reviewability status would remain even though requested under a Rule 305 motion. After all, the right of defense counsel to review these documents resulted from a specific holding and is grounded heavily in constitutional rights, whereas the discretionary review set forth in Rule 305 is a general standard governing requests under the rule. I believe under these circumstances the specific would govern over the general. However, this is where I appear to part company with my colleague, Judge Ford Elliott and join the Opinion authored by President Judge Cirillo.

FORD ELLIOTT, Judge,

dissenting:

I must respectfully dissent. The issue as framed by the appellant, and on which the majority would reverse, is whether the trial court abused its discretion in denying appellants’ Motion to Compel discovery of psychological reports of the victims within the possession of the District Attorney pursuant to Pa.R.Crim.P. 305(B)(2).

I find the majority’s application of Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989) inapposite to this issue as presented.

Our supreme court in Lloyd determined that the defendant had a state constitutional right to view the contents of a sexual abuse victim’s psychotheraputic records in the possession of a hospital. In so doing, the court determined that the trial court had no authority or discretion to limit the defendant’s review through its own in camera procedure. By applying the reasoning of Lloyd to the instant case, the majority finds that the trial court had no discretion under Rule 305(B)(2) to limit appellant’s review of the Erie Rape Crisis Center records which were a part of the Commonwealth’s file. To apply Lloyd as the majority proposes today would make not only the Crisis Center reports subject to discovery but also the entire contents of the Commonwealth’s file. Although I admit with some candor, that a careful reading of the majority and dissenting opinions in Lloyd leaves several questions unanswered, I cannot discern from my review that Lloyd found the exercise of discretion designated to the trial court during the discovery process pursuant to Rule 305(B)(2) unconstitutional as violative of a defendant’s state constitutional rights to confrontation and compulsory process. Until such time as the highest court of this Commonwealth specifically addresses this issue, I choose to apply the reasoning of Lloyd very narrowly.

Rule 305 as promulgated under the rule making authority of our supreme court was specifically designed to satisfy the constitutional guarantees enunciated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In sum, Brady affords a defendant the opportunity to discover information in the possession of the Commonwealth that may be material to his defense. The Rule has passed constitutional scrutiny on several occasions, most recently by this court in Commonwealth v. Carillion, 380 Pa.Super. 458, 552 A.2d 279 (1988), and Commonwealth v. Byuss, 372 Pa.Super. 395, 539 A.2d 852 (1988). Turning to the facts of the instant case, the psychological reports of the victims provided by the Erie Rape Crisis Center had been disclosed to the Commonwealth; therefore, the reports were no longer subject to any privilege as noted by the majority opinion at footnote 4. However, this did not make them any more discoverable under Rule 305. If exculpatory information was contained therein, it was subject to discovery by appellant. The Commonwealth refused disclosure of the reports and appellant properly sought relief from the trial court pursuant to a motion to compel discovery of the reports.

In response to appellant’s motion, the trial court conducted an in camera inspection of the reports and determined that they contained nothing of value to the defense. The procedure was in compliance with that provided for in Rule 305 and approved of most recently in Carillion and Byuss. I can find no abuse of discretion on the part of the trial court. Further, I cannot find that appellant’s rights of confrontation and compulsory process were violated by the procedures established under the rule.

Judge Brosky’s authored en banc decision in Carillion, which upheld both the trial court’s in camera inspection of discovery material and the release of such material to the defendant, is instructive to the case herein.

As in Byuss, we agree that appellee’s right to confrontation has been neither compromised nor even implicated under the State Constitution. Moreover, the applicable provision of Rule 305 under which appellee’s initial requests fell and which controlled Byuss’ pretrial application for discovery of the medical reports states that disclosure is discretionary with the trial court. See Pa.R. Crim.P. 305 B(2), infra, at note 5. Hence, the procedure set forth in Pennsylvania v. Ritchie, supra, and endorsed by Byuss that the trial court conduct an in camera inspection of the file after which, if the court first determines that the sought-after information is extant and material to the accused’s defense may, in its discretion, order the Commonwealth to make such disclosure to the accused is in keeping with the tenor of this Rule. The right here involved stemmed from appellee’s initial request for pre-trial discovery pursuant to Pa.R.Crim.P. 305 of what he believed to be significant portions of the file. Upon post-trial in camera inspection of the subject file, the trial court determined and we agree, that formerly withheld portions of this file were critical to appellee’s defense.

Commonwealth v. Carillion, supra, 380 Pa.Super. at 472-4, 552 A.2d at 286 footnote omitted. Accordingly, in the instant case, if the trial court had determined that the reports of the Erie Crisis Center had contained something of value to the defense, it would have turned over the material information requested by the defense pursuant to Rule 305. However, to the contrary, the court made a specific finding that there was nothing exculpatory or beneficial to the defendant in the records and therefore denied discovery. I cannot find that the trial court abused its discretion in this regard.

Finding no merit to appellant’s points of error, I would affirm the Judgment of Sentence.

      . The order of sentence states "[A]s agreed by defense counsel and the [commonwealth] the offense of indecent assault will merge into the offense of corrupting children."

      . In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.
      Pa. Const, art. I, § 9.

      . In its Pa.R.A.P. 1925 opinion, the trial court noted that it followed the procedure set forth in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). While we agree that the trial court complied with Pennsylvania v. Ritchie, supra, that decision involved federal constitutional guarantees. See Lloyd, supra, ("while the minimum federal constitutional guarantees are equally applicable to the analogous state constitutional provisions, the state has the power to provide broader standards than those mandated by the federal constitution”). At oral argument, Miller’s counsel suggested that Miller’s claim arose under our state constitution and so we have analyzed it under our state constitution.

      . We note the similarity between the present case and Commonwealth v. Higby, 384 Pa.Super. 619, 559 A.2d 939 (1989). In Higby, this court stated that 42 Pa.C.S. § 5945.1(b), which grants sexual assault counselors a privilege, is inapplicable where the defendant seeks to obtain disclosure of discoverable items in the possession of the Commonwealth. Id.-, see also Commonwealth v. Cacek, 358 Pa.Super. 381, 384, 517 A.2d 992, 994 (1986) (section "5945.1 does not grant the Commonwealth a privilege to prevent disclosing of discoverable items and information requested by a defendant pursuant to Pa.R.Crim.P. 305"). In Higby, appellant averred that certain statements were made to individuals at a rape crisis center, and that these statements were in the possession of the Commonwealth. Likewise, Miller claims that the report prepared by the Erie Rape Crisis Center contains information that may exculpate him and that the report is in the possession of the Commonwealth. The Commonwealth does not dispute that it has possession of the report. In Higby, we distinguished such a situation from the circumstances where a subpoena duces tecum was issued upon a rape crisis center. See, e.g., Commonwealth v. Wilson, 375 Pa.Super. 580, 544 A.2d 1381 (1988). Because the Commonwealth disputed Higby’s contention that it had the statements in its possession, we were required to remand the case to the trial court to determine whether the Commonwealth did in fact have the statements. See Higby, supra.

      . In all court cases, except as otherwise provided in Rule 263 ... if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant's attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
      (a) the names and addresses of eyewitnesses;
      (b) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial;
      (c) all written or recorded statements, and substantially verbatim oral statements, made by co-defendants, and by any co-conspirators or accomplices, whether such individuals have been charged or not;
      (d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.
      Pa.R.Crim.P. 305(B)(2).

      . Discretionary With the Court. In all court cases, except as otherwise provided in Rule 263 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
      (a) the names and addresses of eyewitnesses;
      (b) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial;
      (c) all written or recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not;
      (d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.

      . In response to Judge Brosky’s concurrence in this matter, I find nothing in Commonwealth v. Lloyd, supra, which would limit its broad constitutional ruling regarding defendant’s rights of confrontation and compulsory process at the pre-trial stage only to sexual assault files or sexual assault cases.


author: OLSZEWSKI, Judge:

text:
    582 A.2d 11
    Nathan I. RAIKEN, Co-Executor of the Estate of Martin C. Mellon, Deceased, and Nancy Erhardt, Co-Executor of the Estate of Martin C. Mellon, Deceased, Appellants, v. Jane MELLON, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1990.
    Filed Nov. 5, 1990.

      Rochelle B. Fieldcamp, Philadelphia, for appellants.
    Charles K. Plotnick, Elkins Park, for appellee.
    Before OLSZEWSKI, DEL SOLE and HUDOCK, JJ.
   OLSZEWSKI, Judge:

This is an appeal by the co-executors of the decedent’s estate from a final decree in equity entered by the Court of Common Pleas of Montgomery County, granting sole ownership of certain real estate and bonds in appellee, Jane Mellon. We are now asked to decide whether the provisions of a prenuptial agreement entered into between appellee and her deceased husband, Martin Mellon, prevent the creation of a tenancy by the entireties in both the subsequently acquired real estate and bonds. Appellants, co-executors of the estate of Martin C. Mellon, contend that the prenuptial agreement between appellee and decedent prevents the creation of a tenancy by the entireties with respect to the questioned property, absent a sufficient writing to the contrary. Appellants also contend that the evidence offered by appellee to substantiate the transactions was insufficient under the terms of the agreement. Accordingly, appellants would ask that we reverse the decree and award judgment in their favor. For the following reasons, we affirm the judgment of the trial court.

Martin C. Mellon and Jane Mellon, prior to their marriage, entered into a prenuptial agreement which provides in pertinent part:

3. The parties desire that all property presently owned by either of them or acquired by either of them hereafter of whatsoever nature and wheresoever located and all income derived therefrom and all increases in the value thereof, shall be and remain their respective separate property. The parties agree that at no time during their relationship shall there be any transmutation of any of their separate property interests into jointly owned property, nor shall any of each party’s separate property be put in such form as it shall pass to any person other than Martin or Jane or any entity by operation of law at the death of either party, except by their express written agreement. The following events shall, under no circumstances, be evidence of any intention by either party of an agreement between the parties to transmute their separate property interests into jointly owned property or to transmute their separate income into joint income:
(a) the filing of joint tax returns;
(b) the designature of one party by the other as a beneficiary of his or her estate;
(c) the co-mingling by one party of his or her separate funds or property with jointly owned funds or property or with the separate funds or property of the other party;
(d) any oral statement by either party;
(e) any written statement by either party other than the express written agreement of transmutation;
(f) the payment from jointly held funds of any separate obligation, including but not limited to the payment of mortgage, interest or real property taxes on a separately owned residence or other separately owned real estate or personal property;
(g) the joint occupation of a separately owned or leased residence.

On March 17, 1983, Martin and Jane Mellon entered into a purchase agreement for an unimproved lot in Maryland. Both Mr. and Mrs. Mellon signed the agreement as the buyers of the real estate; however, nothing in the agreement itself indicates in what manner the parties intended to hold the land. Upon completion of the settlement, however, the language appearing on the deed purported to convey the lot to both parties as tenants by the entireties. The funds for the purchase were obtained in equal shares from both parties. A vacation home later built on the lot was financed in the same manner.

Thereafter, on August 6, 1984, Martin Mellon purchased five Pennsylvania General Obligation Bonds with a face value of $5,000.00 each. The bonds were of the type known as “bearer bonds” which carry no designation as to ownership. The bonds were purchased solely with funds supplied by Martin Mellon; however, on the “Account Sheet” prepared by the securities representative who sold the bonds, it is noted that Martin and Jane Mellon owned the bonds as tenants by the entireties. The “Account Sheet”, which serves as the sales invoice, does not require the signature of the buyer.

Following the death of Martin Mellon, appellants, as co-executors of his estate, notified Mrs. Mellon that they sought the return of one-half of the value of the real estate plus interest. A petition to show cause was filed in Montgomery County Orphan’s Court on July 7, 1986. Appellee filed preliminary objections to the petition alleging a lack of jurisdiction over the matter as the situs of the land was in Maryland. On November 25, 1986, the court sustained the objections and entered a decree nisi to that effect. Following the denial of exceptions, appellants sought an appeal to this Court.

Thereafter, on February 19, 1987, appellee filed a petition directing appellants to file an inventory and account. Following an order granting the petition, appellants filed an account which listed one-half ownership of the real estate and ownership of the bonds. Appellee objected to the account in both regards. In the interim, on June 5, 1987, appellee sold the real estate for a net price of $177,204.97, with the proceeds being placed in escrow.

On October 9, 1987, a stipulation was reached by both parties with respect to the disputed assets. It was agreed that the previous notice of appeal to this Court be withdrawn. It was further agreed that the Orphan’s Court of Montgomery County shall have jurisdiction to determine the ownership of the real estate and the bonds. Following the taking of depositions, both parties then moved for summary judgment. On May 3, 1989, the Honorable Judge Albert Taxis denied appellants’ motion but granted judgment in favor of appellee. Fashioning the order in the form of a decree nisi, the court gave the parties ten days in which to file exceptions. Appellants filed exceptions within this time period; however, the court on July 19, 1989, denied the same. After reducing this latest order to judgment, appellants filed the instant appeal.

Appellants contend that the prenuptial agreement entered into between the parties precludes joint ownership of property except where an express written agreement is involved. They argue that the purchase of the real estate at equal cost to each party, and the purchase of the bonds at sole cost to the deceased, do not effect a “transmutation” of separate marital property into jointly-held entireties property absent an express written agreement as required by the prenuptial agreement. It is argued that the real estate was purchased with the separate funds of each party and hence remains separate property under the prenuptial agreement. Likewise, appellants argue that because the bonds were purchased with the decedent’s separate funds, they were his separate property to which his estate is now entitled.

Appellee contends that the prenuptial agreement, by its terms, does not prevent the acquisition of newly acquired property and does not preclude the formation of joint interests in such property. Though the agreement purports to require an express written agreement to allow the separate property of either spouse to be “transmuted” into joint property, appellee argues that the real estate and the bonds were never separate property of either spouse, thus the prenuptial agreement has no effect upon the ownership of either asset. We agree.

Prenuptial agreements are contracts, and, as such, should be evaluated under the same criteria as are applicable to other types of contracts. Simeone v. Simeone, 581 A.2d 162, 165 (Pa.1990). When interpreting a prenuptial agreement, the court, as in dealing with an ordinary contract, must determine the intention of the parties. Laub v. Laub, 351 Pa.Super. 110, 115-17, 505 A.2d 290, 293 (1986). When the words of a contract are clear and unambiguous, the intent of the parties is to be discovered from the express language of the agreement. Id. 505 A.2d at 293, citing, Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982).

Where ambiguity exists, however, the courts are free to construe the terms against the drafter and to consider extrinsic evidence in so doing. Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507 (1986); Citizen Care v. Com., Dept. of Public Welfare, 118 Pa.Commw. 397, 545 A.2d 455 (1988).

In the instant case, the agreement is not entirely clear on its face. While the agreement does indeed purport to restrict the conversion of separate property into joint property, the contract is silent as to newly-acquired joint property. Nor does the agreement, on its face, prohibit the creation of joint interests. Accordingly, the trial court was free to consider other evidence and construe the document against the estate, whose co-executor drafted the prenuptial agreement. In so doing, the court found no prohibition regarding the acquisition of newly-ácquired joint property, notwithstanding the terms of the agreement. Upon review, we cannot disagree and we find the construction utilized by the court entirely reasonable under the circumstances.

Having concluded that the prenuptial agreement does not prohibit a joint interest in newly acquired property, but only requires an express writing to transmute separate, pre-existing property into joint property, we have no difficulty in determining that a tenancy by the entireties had been created in the subsequently acquired real estate and bonds. Where property or an account is placed in the names of husband and wife, the creation of an estate by the entireties is presumed. In re Holmes Estate, 414 Pa. 403, 200 A.2d 745 (1964); Margante v. Ewald, 252 Pa.Super. 244, 381 A.2d 480 (1977); Brown v. Brown, 352 Pa.Super. 267, 507 A.2d 1223, 1225 (1986). This presumption is not hindered by the fact that one spouse contributed the funds to purchase the property. In re Holmes, supra, 200 A.2d at 747; Nachman v. Nachman, 417 Pa. 389, 208 A.2d 247 (1965).

Instantly, the record is clear that both properties were intended to be held as joint tenancies by the entireties. Regarding the realty, the agreement of sale was entered into by both parties and, upon settlement, the deed conveyed to the Mellons noted that they held the property as tenants by the entireties. With regard to the bonds, the same is true. Shirley Blaufield, the securities representative who sold the bonds, testified that the decedent was the one who instructed her to title the bonds in the names of both parties as joint tenants with the right of survivorship. The invoice sent to the Mellons upon completion of the sale evidences this intent. Accordingly, we are in complete agreement with the trial court that the parties intended that both properties be held as tenants by the entireties. Therefore, the court did not err in determining sole ownership of the real estate and the bonds to be in appellee upon the death of the decedent.

Order affirmed.

      . We need not consider whether the documentation of the sales transactions is sufficient to constitute an express written agreement under the terms of the prenuptial agreement, as we decide that the prenuptial agreement has no effect upon the ownership of the assets in question.


author: CAVANAUGH, Judge:

text:
    582 A.2d 14
    COMMONWEALTH of Pennsylvania, Appellee, v. Dawud ROBINSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1990.
    Filed Nov. 5, 1990.

      David Zuckerman, Philadelphia, for appellant.
    Harriet R. Brumberg, Asst. Dist. Atty., Philadelphia, for Com.
    Before CAVANAUGH, WIEAND and HUDOCK, JJ..
   CAVANAUGH, Judge:

This is an appeal from a judgment of sentence imposed after appellant was found guilty by a jury of possession with intent to deliver a controlled substance. Two issues are presented for review: whether appellant’s motion to suppress physical evidence was improperly denied and whether the evidence was sufficient to sustain the convictions.

The appellant was arrested February 1,1989. The arresting officer testified at the hearing on the motion to suppress physical evidence that he was outside his marked patrol car near an intersection at 9:40 P.M. when he observed an automobile turn wide around the corner and enter the opposing lane of travel. The car was moving at a high rate of speed and “laying rubber.” The officer turned on his lights and signaled the driver to pull over. The car was occupied by the driver, a front seat passenger, and appellant in the rear passenger seat. The officer approached the driver and requested information regarding identification. The driver was unable to produce a driver’s license or registration card. When asked by the officer who owned the vehicle, the driver gave conflicting answers that it was his own car, his cousin’s car, or his nephew’s car. The officer then asked the driver to get out of the car, and he frisked the driver for weapons. The two passengers were also told to get out of the car. As appellant was exiting, the officer saw him reach into his pocket and attempt to throw a clear plastic bag in the back seat. The officer caught the bag and suspected it to contain illegal drugs. A field test performed a short while later, after appellant’s arrest, indicated the presence of crack cocaine in the 38 individual vials in the bag.

The thrust of appellant’s first argument is that his right protected by the United States and Pennsylvania Constitutions to be free from unreasonable searches and seizures was violated. He contends that the officer was without legal basis to order him from the car since he was merely a passenger and the car was stopped for a traffic violation. Primary reliance is placed upon Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973) to support the position that the officer acted without lawful justification. Appellant describes the facts of Pollard as being identical to those involved in the instant case. In Pollard, the supreme court held that a passenger could not be ordered from a vehicle which had been stopped by police for traffic violations for the sole reason that it was in a high crime area. There existed no basis upon which the officers could form a reasonable belief that criminal activity was afoot.

We find, however, that the facts of Pollard and of this case differ in a material manner—the arresting officer here did have sufficient basis to form a reasonable belief that criminal activity was afoot, i.e., the vehicle may have been stolen. That the driver had no driver’s license, owner’s card, registration card, or any other form of identification and that he gave conflicting information concerning the ownership of the car, was sufficient to allow the officer to form a reasonable belief that criminal activity was afoot. Removing all the occupants from the car while he checked the Vehicle Identification Number (VIN) on the dashboard was a reasonable precaution taken by the officer to protect his safety.

Where there is a reasonable suspicion of criminal activity or of a passenger’s being armed and dangerous, a police officer may order a passenger to alight from a vehicle that has been stopped for a traffic violation. Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988). An arresting officer need not expose himself or herself to potential injury from a passenger during the course of an investigation being conducted to determine if the vehicle is stolen. Once the officer formed the reasonable belief that the car may have been stolen, he was legally entitled to take the protective step of removing all the occupants from the car in order to examine the VIN on the dashboard. The United States Supreme Court has recognized the significance of the VIN and the necessity of safeguarding an officer’s physical well-being during an investigation to determine it. A demand to inspect the VIN is within the scope of police authority pursuant to a traffic violation stop. New York v. Class, 475 U.S. 106, 115, 106 S.Ct. 960, 966, 89 L.Ed.2d 81, 91 (1986). Since the officer had authority to inspect the VIN, it follows that he may take reasonable precautions against physical harm that may be inflicted by any occupant of the vehicle.

Appellant relies upon the state constitution, Article I, Section 8 for protection of his privacy rights broader than that afforded by the Fourth Amendment of the United States Constiution. We decline to hold that state law on this issue differs from the jurisprudence developed by both state and federal courts regarding the reasonableness of searches and seizures under the Fourth Amendment. In the absence of controlling authority otherwise, we see no reason to conclude that the balance struck between an automobile passenger’s privacy rights and the safety of police officers investigating stopped vehicles would be any different under the state constitution than under the federal one.

Appellant’s second issue relates to the expert testimony offered by the Commonwealth to establish that the drugs possessed by appellant were for delivery to others, rather than for personal use. Although the police officer-expert witness testified on direct that in his opinion the quantity of drugs seized and other conditions indicated an intention to sell them, appellant points to areas of cross-examination which, he maintains, require a finding that the Commonwealth failed to prove intent to distribute.

Sufficient evidence supports a verdict where, when viewed in a light most favorable to the verdict winner, all the evidence and all reasonable inferences drawn therefrom would allow a jury to find that all the elements of the crime have been established beyond a reasonable doubt. Commonwealth v. McLean, 396 Pa.Super. 23, 578 A.2d 4 (1990); Commonwealth v. Ramos, 392 Pa.Super. 583, 573 A.2d 1027 (1990). Whether a controlled substance is possessed with intent to deliver is determined by examination of all the facts and surrounding circumstances. Commonwealth v. Ramos, supra; Commonwealth v. Parsons, 391 Pa.Super. 273, 570 A.2d 1328 (1990). The presence or absence of drug paraphernalia may be probative of intent depending upon the circumstances.

After carefully reviewing the entire testimony of the expert witness, we conclude that the Commonwealth did sustain its burden. The witness opined that 38 vials of crack cocaine possessed by a sober, well-dressed occupant of a motor vehicle in the absence of items conducive to immediate consumption, indicated an intention to deliver. He stated that he had no doubt that delivery of the crack cocaine was appellant’s intention. Although cross-examination was rigorous and pointed up possible other conclusions, the witness remained unshaken in his opinion.

The jury was free to accept or reject the opinion testimony of the expert witness. If accepted by the jury, as it clearly was, it provided an adequate basis upon which to conclude that the Commonwealth proved the intent to deliver element of the crime charged. Commonwealth v. Smagala, 383 Pa.Super. 466, 557 A.2d 347 (1989) is not controlling since the physical evidence in that case was consistent with both personal use and distribution. Given the mixed, ambiguous nature of the evidence, this court found insufficient evidence of intent to deliver. In the instant case all relevant factors indicated that delivery, and not personal use, of the crack cocaine was the appellant’s intention.

Judgment of sentence affirmed.