author: POPOVICH, Judge:

text:
    600 A.2d 1282
    COMMONWEALTH of Pennsylvania, Appellee, v. Carl CERIANI, Appellant.
    Superior Court of Pennsylvania.
    Argued July 16, 1991.
    Filed Dec. 23, 1991.

      Richard R. Fink, Levittown, for appellant.
    C. Theodore Fritsch, Jr., Asst. Dist. Atty., Doylestown, for the Com., appellee.
    Before POPOVICH, HUDOCK and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Bucks County on February 15, 1991, following appellant’s conviction on charges of possession of a controlled substance, possession of a controlled substance with intent to deliver, possession of drug paraphernalia and criminal conspiracy. We reverse the decision of the suppression court, vacate the judgment of sentence and remand for a new trial.

Appellant herein raises the following three issues, all of which arise from the denial of his pre-trial motion to suppress:

I. Was there insufficient evidence of probable cause presented to the magistrate to justify the issuance of a search warrant because the police affiant intentionally or recklessly omitted material information that would have been helpful in determining the credibility of the informant?
II. Where the police forcibly enter a residence to serve a search warrant at the same time as an eight-year-old boy opens the door in response to a falsehood that his father’s car has been struck, has appellant been given a reasonable opportunity to voluntarily surrender the premises where there has been no compliance with the requirement that police knock, announce their authority and purpose, and wait a reasonable length of time to enter?
III. Did the Bensalem Township police act beyond the territorial limits of their primary jurisdiction when they failed to obtain consent of the chief law enforcement officer, or a person authorized by him to give consent prior to service of a search warrant outside the confines of their own jurisdiction?

Appellant’s Brief, p. 3.

When we review the denial of a motion to suppress, this court must:

‘determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).’

Commonwealth v. Ariondo, 397 Pa.Super. 364, 367, 580 A.2d 341, 342-343 (1990), quoting Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989).

Applying the aforementioned standard, we will first address appellant’s assertion that the search warrant was issued without probable cause. Appellant argues that the affidavit of probable cause failed to set forth sufficient facts from which the issuing authority could independently determine the reliability and credibility of the informants. Further, appellant asserts that the police omitted from the affidavit information concerning the prior criminal record of informant Dana Lens which was material to the issue of his credibility.

When reviewing whether a search warrant was sufficiently supported by probable cause, we employ the “totality of the circumstances” analysis of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985) (adopting the “totality of circumstances” test in Pennsylvania). The “totality of the circumstances” test has been summarized as follows:

The task of the issuing magistrate is simply to make a practical, common sense 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, that there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Gray, 503 A.2d at 925, quoting Gates, 462 U.S. at 238-239, 103 S.Ct. at 2332.

The record reveals that on December 2, 1988, Detective Diaz applied for a warrant to search appellant’s home located in the Magnolia Hill area of Bucks County. The affidavit of probable cause for the search warrant reads as follows:

Whereas, your Affiant is Juan Diaz # 52, Bensalem Twp., Police Department, is currently in a joint investigation with Tullytown Boro Police Department and the Bucks County District Attorney’s Office. Your Affiant is a six year Police Veteran who’s experience includes over 100 narcotics related investigations. I have received training in narcotics investigations by Immigration and Naturalization Services, Pennsylvania State Police, and the Bucks County District Attorney’s Office.
Whereas, your Affiant received the following information from Bucks County Detective Bill Kling: At about 0715 hours, December 2,1988, Bucks County Detective, Roberta Kostick interviewed Fay Geiser, 88 Junewood Drive Levittown Pa. Fay Geiser had just been arrested for various violations of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act of 1972 and was presently at the Tullytown Police Department, Tullytown Boro Bucks County Pa. Fay Geiser advised Detective Kostick that her source of drugs is a Dana Lens. Dana Lens’s source is a man named Carl who used to live in Morrisville. She said that about 3-4 months ago Carl moved into a house in the Magnolia Hill section of Levit-town. Detective Kostick then spoke to William Geiser, Fay’s Husband, who was also at the Tullytown Police Department having been arrested for various violation of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act of 1972. Detective Kostick asked William Geiser if he knew a Carl, who was Dana Len’s supplier. He said that he did and that Carl moved into a second hand house in Magnolia Hill.
Whereas, your Affiant Detective Juan Diaz talked to Dana Lens on 12-2-88, at Tullytown Boro Police Department. Dana Lens had just been arrested for violations of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act of 1972. Dana Lens told your Affiant, Detective Diaz, that he’s supplied Methamphetamine by Carl Ceriani. Carl Ceriani resides at 49 Mistletoe, Bristol Twp., Bucks County (phone # 547-4272). Dana Lens also informed this writer that he has been selling Methamphetamine for Carl Ceriani for approximately one year. Dana Lens stated that he usually calls Carl Ceriani, via telephone and tells him that everything is good and if he could come over to borrow some tapes. This means that Dana Lens had sold all of his Methamphetamine and that he’s ready to drive to Carl’s house (49 Mistletoe Bristol Pa.) and pick up more Methamphetamine. Dana Lens stated that he usually gets 4 ozs. at a time.
Whereas, on 12-2-88, at approximately 1315 hours, Dana Lens contacted Carl Ceriani, via telephone and informed him that everything was good and that Dana wanted to come over to borrow some tapes. According to Dana Lens, Carl Ceriani told him that it was ok and to come over. Your Affiant was present during this phone call and heard Lens’s end of the conversation.
Whereas, Detective Timothy Carroll of the Bensalem Police Department informed your Affiant that during the execution of a search warrant of Mr. Dana Lens, Detective Carroll came across Mr. Carl Ceriani’s address and phone number (49 Mistletoe, Bristol Pa # 547-4272).
Whereas, your Affiant was advised by Bucks County Chief of Detectives, Paul Gourley, that according to the Voter’s registration rolls, the following individuals reside at 49 Mistletoe Lane, Bristol Twp. Bucks County Pa. Carl T. Ceriani, D.O.B. 1-10-52, Pamela S. Ceriani, D.O.B. 10-25-63 and Anthony J. Kulkavicz, D.O.B. is unknown. Whereas, Bucks County Detective Thawley Hayman, informed your Affiant that according to the Bucks County Deed Book number 2840 page number 152, Mr. Carl T. Ceriani and Mrs. Pamela S. Ceriani are the owners of the residence located at 49 Mistletoe Lane, Bristol Twp., Pa., as of September 7, 1988.
Whereas, based on the preceding information, your Affi-ant believes Methamphetamine a scheduled II controlled substance is present at 49 Mistletoe Lane Bristol Twp. Pa and also that probable cause exists to search the premises, the residence of Carl Ceriani and Pamela Ceriani and any other person present to seize Methamphetamine and any other related paraphernalia and or records and monies.

Applying the “totality of the circumstances” test, we find that the affidavit clearly supports a determination that probable cause existed. Instantly, appellant only attacks the credibility of informant Dana Lens, asserting that the issuing authority would not have found probable cause to exist had the magistrate known about informant’s prior record and possible drug addiction. However, the fact that all of the informants, including Lens, made declarations against their penal interest supports the reliability of their statements. See Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 445 A.2d 1214 (1982); Commonwealth v. Stickle, 484 Pa. 89, 398 A.2d 957 (1979); Commonwealth v. Kaschik, 235 Pa.Super. 388, 344 A.2d 519 (1975).

Having determined that the search warrant was supported by probable cause, we turn to the question of whether the police complied with the mandates of the “knock and announce” rule, Pa.R.Crim.P. 2007, when executing the search warrant. Rule 2007, Manner of Entry into Premises, provides:

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

It was the obligation of the Commonwealth, at the suppression hearing, to prove, by a preponderance of the evidence, that the search or seizure of the evidence satisfied the mandates of Rule 2007. In Commonwealth v. Parsons, 391 Pa.Super. 273, 570 A.2d 1328, 1331-32 (1990), this Court articulated the underlying objectives of Rule 2007; to-wit:

“The purpose[s] of the ‘knock and announce’ rule,” ..., “[are] to prevent violence and physical injury to the police and occupants, to protect an occupant’s privacy expectation against unauthorized entry of persons unknown to him or her, and to prevent property damage resulting from forced entry.” It has also been stated that even where the police announce both their identity and purpose ... forcible entry remains impermissible if the occupants of the premises sought to be entered have not been provided with the opportunity to relinquish the premises voluntarily. The critical inquiry then, is whether sufficient time elapsed for the police to form a reasonable belief that the occupants of the premises did not intend to surrender the premises peaceably or voluntarily. [Citations omitted]

In compliance with the preceding, our examination of the record reveals that Detective Diaz and approximately ten other police officers travelled to appellant’s residence to execute the warrant. Judge Edward G. Biester, Jr., in his Findings of Fact and Conclusions of Law, described the manner of execution as follows:

What had been arranged by the officers was the creation of a ruse by which they hoped to achieve a peaceable and prompt opening of the premises to their entrance. They had already been involved in a number of prior search warrant executions and in the course of those executions had acquired additional information with respect to potential seizure of contraband in the Ceriani home. The execution of the Ceriani search warrant was the last of the search warrant executions to be attempted that evening. What the officers had arranged for was the sound of an automobile accident created just outside the Ceriani home. Then following that sound of screeching brakes they intended to knock on the door and then have the door opened to them and then begin with discussion of a car accident involving a Ceriani vehicle so as to obtain peaceable entry into the premises.
Detective Eastlack testified that he parked his car in front of a parked car out in the street and simulated an accident. He then went to the doorway of the Ceriani home. He knocked on the door. The door was opened, and a young boy answered the door. Detective Eastlack then said “Can I see your father? I just hit the car.” When the boy opened the door I said “Police, search warrant, I ran past him and I was yelling as I went through.” Further Detective Eastlack testified that he had knocked on the door and he said to the boy “Oh man I hit the car” and heard a lady inside say “Oh somebody hit a car.” The door was opened by the boy. After it was opened Detective Eastlack said “can I see your father, I just hit the car out front.” The entranceway to the premises is through a foyer about three feet in size. After Detective Eastlack had said I just hit the car out front the young boy opened what must have been an outer door and it was after that that Detective Eastlack said I'm a police officer. Then Detective Eastlack yelled police search warrant and he then ran past the boy and ran past the people who were in the kitchen. He was immediately followed by other police officers. Present in the premises was Mr. Ceriani, Mr. Ceriani’s brother and other family members. Detective Eastlack had a copy of the warrant with him at the time that he entered the premises.

Trial Court Opinion, pp. 2-4.

In examining whether Rule 2007 has been violated, the first step is to consider whether the law enforcement officers provided notice to the occupants of the premises to be searched. Parsons, supra. Presently, the police made use of a ruse to gain entrance into appellant’s residence. In Commonwealth v. Regan, 254 Pa.Super. 555, 386 A.2d 89 (1978), we held that “police use of a ruse to initiate execution of a search warrant is permissible where it is followed by an announcement of authority and purpose and by peaceful entry.”

The Commonwealth argues the case of Commonwealth v. DeCaro, 298 Pa.Super. 32, 444 A.2d 160 (1982) is controlling presently. Therein, the “knock and announce” issue was addressed as follows:

The testimony at the suppression hearing shows that the police took with them one Sadusky, a defendant on another charge who knew appellant and who had agreed to have appellant open her door to him for the benefit of the police. The front door was reinforced by an iron gate opening outwards. When appellant opened the door to Sadusky, at least one police officer yelled out “police” and “we have a warrant”. A police officer standing with Sadusky grabbed the iron gate to prevent it from being slammed shut, and the other two police officers ran in, while appellant stood there, doing and saying nothing. The police had seen another person in the house, and rushed through the house to prevent disposal of any controlled substance, showing the warrant to appellant later. The judge, on the basis of Commonwealth v. Regan, 254 Pa.Super.Ct. 555, 386 A.2d 89 (1978), found that Sadusky was being used as a ruse to get the door open and that there was no violation. We see no error in the conclusion drawn by the judge from the facts. The crucial issues are authority, purpose and entry, Commonwealth v. McCarthy, 257 Pa.Super.Ct. 42, 390 A.2d 236 (1978). The police announced their authority and purpose and though they rushed in quickly there was no forced entry. There was no violation of appellant’s rights in the execution of the warrant.

DeCaro, 444 A.2d at 167.

However, we find that DeCaro, supra, is factually distinguishable from the case before us. In DeCaro, supra, there was no forced entry. Instantly, we are convinced that officer’s forcibly entered the premises and failed to give appellant an opportunity to surrender the premises peaceably.

The record reveals that the police staged a car accident in front of appellant’s home. Plainclothes Officers Eastlack and Carroll then went to the front door in an effort to gain entrance to appellant’s residence. When they reached the door, both officers testified that they could see into the kitchen of the house where appellant, several other adults and a child were sitting at a table and talking. In response to Officer Eastlack’s knock on the front door, appellant’s son answered. Officer Eastlack testified that the child appeared to be between the ages of five and seven. N.T., p. 60. Officer Eastlack told the boy that he had hit a car and asked him if he could see his father. The boy then opened the screen door to the small enclosed front porch. Officer Eastlack, while running past the child through the partially opened door, yelled “Police, search warrant.” N.T., pp. 51-52. Approximately ten other police officers followed Officer Eastlack into the home, and at least some of the police officers accompanying Officer Eastlack, had their guns drawn. N.T., pp. 36, 91-92, 99, 107-108, 111, 119-120. Sean Ceriani, the child who opened the door, testified he was pushed into the wall when the officers ran past him. N.T., p. 113.

Based on those facts, we find that there was forced entry. The officers rushed past the child (some had their guns drawn) pushing him aside as they entered the house, essentially announcing their authority and purpose simultaneously with their entry. Factually, the method of entrance is similar to that which was disapproved by this Court and our Supreme Court in Commonwealth v. Chambers, 385 Pa.Super. 605, 561 A.2d 1257 (1989), affirmed, — Pa. —, 598 A.2d 539 (1991). Therein, the police knocked on the defendant’s door, and when he answered, they announced “Police officers. We have search warrant for the premises.” Contemporaneously, the officers pushed open the already partially opened door, forced the defendant against the wall and entered the house with their guns drawn. This court determined that Rule 2007 and the Fourth Amendment of the United States Constitution were violated because the police failed to wait a reasonable period of time after announcing their identity and purpose before forcefully entering the premises, in the absence of exigent circumstances. Chambers, 561 A.2d at 1258-1259. Likewise, our Supreme Court determined that the officer’s forcible entry without waiting a reasonable period of time violated Article 1, § 8 of the Pennsylvania Constitution. Chambers, 598 A.2d at 542. Here, too, we find that the officers failed to wait a reasonable period of time after announcing their identity and purpose in order to give appellant (or any other occupant of the premises) the opportunity to surrender the premises.

Although the Commonwealth argues the exigent circumstances existed which would permit a forced entry, see Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982), we find no support for such an allegation in the record. Officers Carroll and Eastlack both testified that they could see inside appellant’s home through the kitchen window. They did not observe any activity which would indicate appellant (or any other occupant for that matter) was attempting to destroy evidence or arm himself. The only evidence of exigent circumstances was the testimony of Officer Carroll who testified that appellant is a “large guy” and that there “could be trouble getting in there.” N.T., p. 45. Such a bald, self-serving allegation of exigent circumstances is patently fallacious.

Instantly, the police knew children were present within the home and were able to observe the occupants of the residence during the ruse. From the record it appears the ruse was working as planned, and yet, the officers inexplicably opted to push their way past a child, without waiting a reasonable period of time to afford the occupants an opportunity to surrender the premises. Despite the espoused goal of the ruse, to lure appellant outside and gain his cooperation, the police did not wait for appellant to come to the door. N.T., p. 45. Having found that the officers effected a forced entry without waiting a reasonable period of time to give appellant a chance to surrender the premises peacefully, we hold that Rule 2007 was violated. Cf., Chambers, supra.

Even though there was no technical compliance with Rule 2007’s notice requirement, this does not ipso facto necessitate a finding that the evidence seized must be suppressed. See Commonwealth v. Davis, 407 Pa.Super. 415, 595 A.2d 1216 (1991); Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054, 1056 (1987). As was noted in Commonwealth v. Mason, 507 Pa. 396, 406-07, 490 A.2d 421, 426 (1985):

... exclusion/suppression of evidence is not an appropriate remedy for every violation of the Pennsylvania Rules of Criminal Procedure concerning searches and seizures. It is only where the violation also implicates fundamental, constitutional concerns, is conducted in bad faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy.

The Fourth Amendment of the United States Constitution and Article I, § 8 of the Pennsylvania Constitution prohibits unreasonable searches and seizures, and this applies to the execution of the search warrant. Chambers, 598 A.2d at 540; Chambers, 561 A.2d at 1259, citing Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) and Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968). The reasonableness of the warrant’s execution must be determined on a case-by-case basis. Id.

Our review of the record reveals that manner of execution of the search warrant violated both state and federal constitutional prohibitions of unreasonable searches and seizures, and the lower court should have suppressed the evidence. The evidence of record does not support the reasonableness of the execution of the search warrant. There is no evidence that anyone in the house attempted to destroy evidence, evade the police, arm themselves or resist the execution of the warrant. In fact, there is no evidence of exigent circumstances of any kind. Although appellant’s child opened the screen door to the front porch, there is no evidence to suggest that the boy said anything to the officer, much less consented to the search. The record clearly reveals that the officers did not wait even one moment after announcing their authority and purpose before entering the house, and certainly, no one was given the opportunity to relinquish the premises voluntarily.

We cannot say that the police acted reasonably under the circumstances sub judice. They forced their way past a child after using a ruse to get him to the door. They did not give the occupants the opportunity to surrender the premises, despite the fact that officers were able to see inside the residence and knew that no suspicious activity was occurring. Certainly, the potential for injury to person (especially innocent children) and property was unnecessarily enhanced by the officer’s failure to wait just a few more seconds until appellant or some other adult came to the door.

Balancing the benefits of deterring police misconduct against the costs of excluding otherwise reliable evidence, Chambers, 561 A.2d at 1260, citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) and California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), we conclude the lower court erred in failing to suppress the evidence seized as a result of the unreasonably executed warrant. The police put themselves, appellant, other adults and innocent children at risk unnecessarily. Under the circumstances of this case, we hold that the officer’s failure to wait a reasonable period of time in order to afford the occupants the opportunity to surrender the premises violated Pa.R.Crim.P. 2007, Article I, § 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution. Exclusion of the evidence is the appropriate remedy. “A search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from what is dug up subsequently.” Chambers, 598 A.2d at 542, quoting Commonwealth v. Newman, 429 Pa. 441, 449, 240 A.2d 795, 799 (1968). Accordingly, we reverse the suppression decision of the court below and vacate appellant’s conviction. Cf., Chambers, supra.

Judgment of sentence vacated and a new trial granted. Jurisdiction relinquished.

HUDOCK, J., concurs in the result.

      . Due to our resolution of the “knock and announce” issue, it is unnecessary to address appellant's remaining assertion of error.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    600 A.2d 1289
    COMMONWEALTH of Pennsylvania v. Wayne Charles WRIGHT, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1991.
    Filed Dec. 24, 1991.

      Peter G. Nychis, Pittsburgh, for appellant.
    Pamela E. Miller, Asst. Dist. Atty., Pittsburgh, for Com.
    Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Indiana County. We affirm.

Appellant Wayne Charles Wright pled guilty to four counts of third-degree murder, each graded as a felony of the first degree. Wright was sentenced to a total term of imprisonment of fifteen to thirty years: on count 1, ten to twenty years; on count 2, five to ten years, to run consecutively to the sentence imposed on count 1; on count 3, five to ten years, to run concurrently with the sentence imposed on count 2; and on count 4, five to ten years, to run concurrently with the sentence imposed at counts 2 and 3. A motion to modify sentence was filed and denied. See Pa.R.Crim.P. 1410. On appeal, Wright claims the sentencing court abused its discretion in imposing a sentence within the standard range of the sentencing guidelines.

This case is one of a multitude of challenges to the sentencing judge’s application of the guidelines. Wright’s appeal does not question the sentencing court’s discretion in imposing a penalty within the limits determined by the General Assembly; the sentence is clearly within the statutory range. See 18 Pa.C.S. § 2502(c); 18 Pa.C.S. § 1103(1). Wright asserts that the sentencing court abused its discretion in imposing sentence within the standard range of the guidelines when the circumstances warranted a sentence within the mitigated range.

In a challenge to the discretionary aspects of sentence, the appellant must invoke this court’s jurisdiction by including in his or her brief a separate concise statement demonstrating that there exists a substantial question as to the appropriateness of the sentence under the Sentencing Code. See 42 Pa.C.S. § 9781; Commonwealth v. Tuladziecki, 513 Pa. 508, 511-513, 522 A.2d 17, 19 (1987); Pa.R.A.P. 2119(f). Here, Wright has included in his brief a 2119(f) statement, and we have determined that he raises in that statement a substantial question as to the appropriateness of his sentence. See Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989); cf. Commonwealth v. Ousley, 392 Pa.Super. 549, 552-54, 573 A.2d 599, 601 (1990) (a conclusory assertion in the 2119(f) statement that the sentence exceeded the guidelines, without more, does not raise a substantial question).

Wright participated in setting a building on fire which resulted in the deaths of four people. Wright contends that certain mitigating factors, to wit, the fact that he was twenty-two at the time of the crime, the fact that he had been drinking alcohol prior to the crime, the fact that he was “encouraged” by others to participate in the crime, the fact that he had no other significant previous contacts with the criminal justice system, and the fact that he has a measured intelligence quotient of 72 and is susceptible to the influence of others, warrant a sentence within the mitigated range of the guidelines, and that in light of these exceptional circumstances the court abused its discretion in sentencing him within the standard range. He also maintains that the court, contrary to the mandates of the Sentencing Code, considered only the serious nature of the crime and disregarded other statutory considerations. See 42 Pa.C.S. § 9721(b) (sentence should call for confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant; the court shall also consider sentencing guidelines); see also 42 Pa.C.S. § 9725 (the court shall impose a sentence of total confinement if, upon consideration of the nature and circumstances of the crime and the history, character and condition of the defendant, total confinement is necessary because of undue risk of recidivism, defendant’s need for correctional treatment, or a lesser sentence will depreciate the seriousness of the crime).

Our review of a challenge to the discretionary aspects of sentence is limited; we will reverse only when the appellant has demonstrated a manifest abuse of discretion. Commonwealth v. White, 341 Pa.Super. 261, 270, 491 A.2d 252, 257 (1985). Having reviewed the record of the sentencing hearing, the parties’ briefs and the relevant case law, we find no manifest abuse of discretion in the sentencing judge’s decision, and we conclude that Wright’s claim on appeal is meritless.

The Sentencing Code provides in part:

In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines ... the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.

42 Pa.C.S. § 9721(b). To summarize, a sentencing court need only consider the sentencing guidelines prior to imposition of sentence and, if it chooses to sentence outside the guidelines, explain on the record its reasons for the deviation. Id. When a court imposes sentence for a felony or misdemeanor, it must state on the record its reasons for the sentence imposed. Id. See also Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); Commonwealth v. Smith, 369 Pa.Super. 1, 534 A.2d 836 (1987); Pa.R.Crim.P. 1405(b); cf. Commonwealth v. Wareham, 259 Pa.Super. 527, 534, 393 A.2d 951, 954 (1978) (“we should not hold a statement of reasons insufficient, and therefore require vacat[ur] and remand, when it is apparent that even though the court made no reference to the guidelines, it did consider and apply them.”) The sentencing court is not required to state its reasons for sentencing within one guideline range over another.

The relevant section of the sentencing guidelines provides:

204 Pa.Code § 303.3(a), 42 Pa.C.S. § 9721 (emphasis added). This language is discretionary, not mandatory. Thus, we are presented with the question of whether a sentencing court, when faced with mitigating circumstances, abuses its discretion when it chooses not to sentence within the mitigated range.

The sentencing judge is afforded discretion in order that he or she may account for the circumstances of the individual defendant. Our supreme court has held that a sentencing court abuses its discretion when it considers “the criminal act, but not the criminal himself ...” Commonwealth v. Green, 396 Pa. 137, 150, 151 A.2d 241, 247 (1959). The court must consider the nature of the criminal and the crime, and must tailor the punishment to fit both. Not every consideration, however, can be preserved for appellate review. A remorseful countenance or an irreverent demeanor cannot be captured on the record. Indeed, a criminal defendant is not a standard entity who can fit neatly into the lines of a grid, and it is impractical to require or expect that each thought process entering into the sentencing decision will be documented.

The sentencing court here did not state why it chose not to sentence within the mitigated range of the guidelines, and we emphasize that it is not required to do so. In fact, recent case law indicates a reluctance to impose upon the sentencing court hypertechnical requirements which transcend its province. See, e.g., Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988) (where presentence report exists, the reviewing court will presume that the sentencing court considered relevant factors and weighed those factors in a meaningful fashion); Commonwealth v. Catanch, 398 Pa.Super. 466, 581 A.2d 226 (1990) (requirement of contemporaneous written statement explaining any deviation from the sentencing guidelines is satisfied when a sentencing judge states the reasons for his actions on the record and in defendant’s presence); Commonwealth v. Clever, 395 Pa.Super. 192, 576 A.2d 1108 (1990) (same); Commonwealth v. Wilson, 306 Pa.Super. 372, 452 A.2d 772 (1982) (a sentencing court’s statement of reasons will not be deemed insufficient where it is plain that the court considered and applied the Sentencing Code even though it makes no explicit reference to the guidelines).

Here, the court stated on the record that it considered all the statutory factors, including Wright’s limited intellect and the testimony of his family and friends. The court also considered Wright’s family background, his work experience, his educational background, and his rehabilitative needs in addition to the gravity of the offense. The court stated as much on the record. 42 Pa.C.S. § 9721(b); Commonwealth v. Rafalko, 335 Pa.Super. 122, 483 A.2d 986 (1984).

The court also considered a presentence report prepared by the Indiana County Probation Department. See Commonwealth v. Devers, supra; see also Commonwealth v. Burdge, 386 Pa.Super. 194, 562 A.2d 864 (1989) (presen-tence report included information about defendant’s background, including his family, work experience, criminal record, education, intelligence, and emotional and physical health and, thus, trial court did not abuse its discretion in imposing sentence despite defendant’s claim that trial court failed to consider defendant’s background and rehabilitative needs, focusing solely on the nature of the crime).

Finally, we note the significance of Wright’s guilty plea to four counts of third-degree murder, each graded as a felony of the first degree. See 18 Pa.C.S. § 2502(c). A felony of the first degree is punishable by a term of imprisonment of up to twenty (20) years. See 18 Pa.C.S. § 1103(1). Thus, the court, which sentenced Wright to a term of imprisonment of fifteen to thirty years, could have imposed a sentence with a maximum term of imprisonment of eighty (80) years. 18 Pa.C.S. § 1103(1). Furthermore, the Commonwealth in its indictment charged Wright with homicide, classified as murder generally. Had Wright proceeded to trial, he may have be.en convicted of either first-degree murder or second-degree murder. 18 Pa.C.S. § 2502(a), (b). In addition to the various charges which were nol prossed in exchange for Wright’s plea, Wright obviously received a break in the degree of guilt on the four counts of murder. The sentencing court was not unaware of the benefit Wright received in the plea agreement. The court could properly consider this benefit in imposing sentence, and, in turn, factor this consideration into its sentencing decision.

A sentencing court may, in the face of mitigating circumstances, sentence in the mitigated range of the guidelines. 204 Pa.Code § 303.3, 42 Pa.C.S. § 9721. It may choose not to do so, however, when the degree of guilt has already been mitigated. This is the essence of the sentencing judge’s discretion. We decline to read section 9721(b) of the Sentencing Code and section 303.3 of the guidelines as inviting greater deference to the guidelines at the expense of this discretion. “Clearly, had the Legislature intended the Guidelines to remove the discretion of the trial judge from sentencing, it would not have included language in the Code that acknowledges inevitable instances of departure from them.” Commonwealth v. Frazier, 347 Pa.Super. 64, 71, 500 A.2d 158, 161 (1985).

In conclusion, we find that the sentencing court in this case was well within its discretion in imposing sentence within the standard range of the guidelines. Commonwealth v. White, supra. The court considered the statutory factors, including the mitigating circumstances, sentenced within the guidelines, and stated its reasons on the record for the sentence imposed. 42 Pa.C.S. § 9721(b); Commonwealth v. Riggins, supra; Commonwealth v. Martin, supra. The court properly discharged its function, and was neither required to sentence within the mitigated range nor specify its reason for choosing not to do so.

Judgment of sentence affirmed.

      . Murder of the third degree is a felony of the first degree. See 18 Pa.C.S. § 2502(c).

      . 204 Pa.Code Chapter 303, reproduced at 42 Pa.C.S. § 9721. The sentencing guidelines were adopted by the Sentencing Commission on February 22, 1988, effective April 25, 1988. These guidelines replace all previous sentencing guidelines. See generally Martin, Interests and

        Politics in Sentencing Reform: The Development of Sentencing Guidelines in Minnesota and Pennsylvania, 29 Vill.L.Rev. 21 (1984).

      . In his 2119(f) statement, Wright contends that the sentencing court failed to consider the “exceptional” circumstances of this case, and that therefore the court’s imposition of sentence within the standard range indicates the court’s failure to consider the mitigating factors. In particular, Wright enumerates the fact that he was drinking prior to the crimes, and the fact that he possesses a low intelligence quotient, causing him to be susceptible to the influence of others.

      . Section 1103(1) of the Crimes Code provides that a person who has been convicted of a felony may be sentenced to imprisonment, ‘‘[i]n the case of felony of the first degree, for a term which shall be fixed by the court at not more than 20 years.” 18 Pa.C.S. § 1103(1).

      . Wright was also charged with four counts of recklessly endangering another person, one count of arson, graded as felony of the first degree, one count of causing a catastrophe, graded as felony of the first degree, one count of conspiracy, and one count of criminal mischief. These charges were nol prossed in consideration of Wright’s plea on the first four counts of murder.

      . We note that a sentencing judge’s considerations in imposing sentence are not limited to the statutory factors set forth in the Sentencing Code. 42 Pa.C.S. § 9711 et seq. See, e.g., Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980) (defendant’s physical condition may be considered by the sentencing court in exercising its discretion in sentencing); Commonwealth v. Thurmond, 268 Pa.Super. 283, 407 A.2d 1357 (1979) (defendant’s health); Commonwealth v. Gallagher, 296 Pa.Super. 382, 442 A.2d 820 (1982) (defendant's attitude); Commonwealth v. Mattis, 352 Pa.Super. 144, 507 A.2d 423 (1986) (defendant's perjury); Commonwealth v. Lowe, 361 Pa.Super. 343, 522 A.2d 614 (1987) (sense of shame); Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984), rehearing denied, 468 U.S. 1226, 105 S.Ct. 27, 82 L.Ed.2d 920 (1984) (apparent remorse).


author: HUDOCK, Judge:

text:
    600 A.2d 1293
    William T. JENKINS, Appellant, v. Mary Ann BOLLA, Bucks County Courier Times, and Mary Blakinger, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1991.
    Filed Jan. 7, 1992.

      Alan S. Gold, Philadelphia, for appellant.
    Annetta F. Givhan, Philadelphia, for Bucks County Courier and Blakinger, appellees.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

Appellant (Jenkins) brought an invasion of privacy suit against Appellees (Blakinger and the Courier Times) for publishing several articles which referred to Jenkins’ multiple convictions for moral crimes. The trial court found, as a matter of law, that Jenkins had failed to establish the requisite elements of an invasion of privacy claim. There being no genuine issues of material fact, the trial court held that the Courier Times and Blakinger were entitled to judgment as a matter of law. Jenkins appeals the entry of summary judgment against him. We affirm.

The facts, as found by the trial court, may be summarized as follows: In March, 1979, the Courier Times published in its newspaper a three-part series of articles written by its reporter, Mary Blakinger. The articles concerned boarding homes in Lower Bucks County used as residential placements for mentally ill and mentally handicapped individuals. At the time the articles were published, Jenkins operated such a boarding home. The staffs of state and county hospitals and medical facilities, the Department of Welfare, and the Bucks County Mental Health and Mental Retardation Department all referred patients to boarding homes, including Jenkins’, for residential placement. State and county funds subsidized the cost of maintaining the residency of these mentally ill and mentally handicapped individuals.

In 1977, the Lower Bucks County Community Coordinating Committee (the Committee) was formed as a quasi-governmental body for the purpose of supervising these patient residences. The Committee also attempted to improve conditions for the mentally ill and mentally handicapped. To that end, the Committee promulgated a standard of automatic disapproval of a boarding home operated by any person with a criminal conviction, within the previous ten years, of serious crimes and, specifically, of sex-related crimes. Jenkins had been convicted of certain criminal acts of a sexual nature in 1942, in 1960, and in 1973. Because the 1973 conviction fell within the ten-year period adopted by the Committee, the Committee denied Jenkins’ boarding home certification as a patient residence. Accordingly, the Committee recommended to state medical facilities that they no longer refer patients to Jenkins’ boarding home. The 1973 conviction was the only conviction on which the Committee was authorized to base its decision.

The articles in question referred to all of the foregoing but further revealed Jenkins’ 1942 and 1960 convictions, as well as his commitment to Farview State Hospital. Jenkins argues on appeal that Blakinger and the Courier Times invaded his privacy by publishing information about the two “ancient” convictions (one 37 years old and the other 19 years old) and the institutional commitment (28 years old). Jenkins admits to the three convictions and the commitment and does not dispute the newsworthiness of the 1973 conviction. Rather, Jenkins challenges the publication of the earlier records which had no bearing on the Committee’s decision to decertify his boarding house.

In reviewing an entry of summary judgment, this Court may disturb the order of the trial court only where there has been an error of law. This Court applies the same standard as the trial court, affirming a grant of summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b), 42 Pa.C.S.; Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983). In deciding whether summary judgment should have been granted, this Court must examine the record in the light most favorable to the non-moving party. Weiss, 456 A.2d at 1011 (citations omitted).

Jenkins’ action against Blakinger and the Courier Times is based on a theory of invasion of privacy. Before Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954), no such cause of action was considered to exist in Pennsylvania. Twenty years after Schnabel, the law solidified. In Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133 (1974), the Pennsylvania Supreme Court adopted section 652 of the Restatement (Second) of Torts, Tentative Draft, as the law of this Commonwealth. Pursuant to section 652, the cause of action for invasion of privacy is not one tort, but four. This complex of theories consists of (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of another’s name or likeness for commercial purposes; (3) unreasonable publicity given to another’s private life; and (4) publicity that unreasonably places another in a false light before the public. Curran v. Children’s Service Center, 396 Pa.Super. 29, 578 A.2d 8 (1990), allocatur denied, 526 Pa. 648, 585 A.2d 468; Harris by Harris v. Easton Publishing Co., 335 Pa.Super. 141, 483 A.2d 1377 (1984). Jenkins asserts that the articles in question support a cause of action because they gave unreasonable publicity to his private life. The publicity-given-to-private-life tort requires (1) publicity, given to (2) private facts, (3) which would be highly offensive to a reasonable person, and (4) is not of legitimate concern to the public. Harris, 483 A.2d at 1384.

The disputed element in this case is whether the convictions and commitment amount to private facts. A private fact is one that has not already been made public. Harris by Harris, 483 A.2d at 1384. Jenkins first argues that his convictions were initially made public upon their publication by the Courier Times in 1979. This argument is without merit because Jenkins has misunderstood the nature of a public fact. A fact contained within a public record is deemed a public fact. A public record is one necessarily kept in the discharge of duties imposed by law; any writing prepared, used or retained by an agency in pursuance of law or in connection with the transaction of public business is a public record. Black’s Law Dictionary at 1107, 1145 (West, 5th ed., 1979). In this case, Jenkins’ convictions were part of the public court records of Bucks County. As such, his convictions were facts of legitimate concern to the public and available to the public for inspection. Harris by Harris, 483 A.2d at 1385. Whether they may be published with impunity, however, is another question which we discuss below.

Jenkins next argues that this Commonwealth’s public policy favors the rehabilitation and integration into society of former inmates. See, Secretary of Revenue v. John’s Vending Corp., 453 Pa. 488, 493, 309 A.2d 358, 362 (1973) (corporation’s wholesale cigarette dealer’s license could not lawfully be revoked because corporation’s majority stockholder had been convicted of unrelated criminal offense almost twenty years earlier). To permit newspapers to publish, without limitation, convictions that occurred so long ago undermines that policy, according to Jenkins. Again Blakinger and the Courier Times defend, contending that no liability arises for the disclosure of facts that are already public. Schnabel, 107 A.2d at 863 (affirmed compulsory non-suit of plaintiff’s invasion of privacy claims based on post-acquittal publication of plaintiff’s arrest); Restatement (Second) of Torts § 652D, comment b (1977) (no liability where defendant merely gives further publicity to information about plaintiff’s life that is matter of public record). While we recognize the merit of Jenkins’ public policy argument, we are hesitant to apply it in this case; Jenkins has had forty plus years since his first conviction in which to rehabilitate himself. Publication of evidence that he has not succeeded does not undermine the policy of rehabilitation.

Jenkins finally argues that, because so much time has lapsed, the 1942 and 1960 convictions and the Farview commitment have faded from the public record and become private matters. Blakinger and the Courier Times counter that once a conviction appears on the public record, it remains accessible to the public, including the media. We agree with the theory of this latter argument to a point. The mere passage of time does not wipe away the notoriety occasioned by Jenkins' commission of these crimes. Schnabel, 107 A.2d at 863. With time, however, a public record can fade into a private fact, thereby losing its protected status, unless some compelling reason warrants maintaining public awareness of the record. The most compelling reason for publishing an ancient record is the existence of a substantial nexus between a person's past crimes, their current activity, and the public interest. We find such a nexus in this case justifying the publication of Jenkins' past convictions.

This Court recognizes the need for a balance between an individual's right to privacy and the dissemination of information pertaining to the public interest. A matter of public interest concerns the community-at-large’s pecuniary well-being or its legal rights and liabilities. Public interest does not mean anything so narrow as mere curiosity. Black’s Law Dictionary at 1106 (West, 5th ed.1979). We agree with the trial court that these articles addressed a matter of public concern, in that public funds subsidized Jenkins’ boarding home. Moreover, the community’s mentally ill and mentally handicapped were referred to such boarding homes by state medical officials. Operation of a residence for such defenseless individuals by a convicted sex offender would surely cause unrest in a community and among the patients’ loved ones. Jenkins’ 1973 conviction was enough to earn his boarding house “disapproval” from the Committee. He thus argues that any further revelations about his past sexual misconduct were unnecessary and therefore unrelated to any legitimate public purpose of scrutinizing such boarding homes. We disagree. “Disapproval” by the Committee is only advisory; the county cannot prevent the state from referring patients. Of public interest, then, is the possibility that Jenkins may continue to receive state referrals, as well as private ones, and continue to care for those already entrusted to him in spite of a long history of aberrant sexual behavior. The other convictions also serve to enforce his propensity for criminal acts of a sexual nature. Jenkins has an ongoing record of sexual crimes spanning almost forty years. Despite appearances, Jenkins has not reverted to “the lawful and unexciting life led by the great bulk of the community” as to no longer be a proper subject of public interest. Restatement (Second) of Torts § 652D, comment k (1977). Information of his record, past and present, is of vital concern to a public which puts its trust in the individuals caring for the mentally ill and mentally handicapped.

While the two ancient convictions and the commitment in this case may have retreated from the front page, they are still of interest to the public in light of Jenkins’ current activity; the publication of these facts, therefore, cannot support an invasion of privacy claim. The trial court did not err in entering summary judgment in favor of the newspaper and its reporter.

Judgment affirmed.

      . Section 652D, entitled Publicity Given to Private Life, states:
      One who gives publicity to matters concerning the private life of another, of a kind highly offensive to a reasonable man, .is subject to liability to the other for invasion of his privacy.
      Restatement (Second) of Torts § 652D (Tent.Draft No. 13, 1967). At trial, Jenkins also alleged a cause of action based on the false light theory of invasion of privacy (section 652E). He does not pursue that argument on appeal and so we do not address it.


author: TAMILIA, Judge:

text:
    600 A.2d 1297
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael A. MERKT.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1991.
    Filed Jan. 7, 1992.

      Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellant.
    Richard J. Catalano, Pittsburgh, for appellee.
    Before BECK, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

The Commonwealth appeals the trial court’s August 9, 1990 Order granting appellee’s motion to suppress the firearm discovered in appellee’s vehicle.

On August 29, 1988 at approximately 1:25 a.m., Wilkins Township police pursued appellee, Michael A. Merkt, for not paying for gasoline he pumped at a gas station. Because appellee did not stop in response to police sirens and lights, he was eventually forced off the road by two police cars. The officers approached appellee’s car with flashlights, Officer Guthrie ordered appellee out of the car and Officer DeMarco handcuffed appellee and placed him under arrest. At the suppression hearing, Officer Guthrie testified he looked through one of the car windows with a flashlight and observed the butt of a gun lying on the floor of the driver’s side. He could not recall whether the car door was open or closed at that time. To the contrary appellee testified the officer entered his vehicle and conducted a search until he happened upon the weapon. In describing the manner in which the search was conducted, appellee stated Officer Guthrie, after shining the flashlight around the seat and floors, seemed to go right to where the gun was and pull it out as if he knew it was there from the beginning.

The trial court suppressed the gun as fruit of an illegal search, in that the weapon was not in plain view and no probable cause existed to conduct a warrantless search of the car. The court reasoned the record indicated the weapon was not in plain view due to the officer’s use of a flashlight in looking into the car.

The Commonwealth argues the gun was in plain view and the fact the officer needed to use a flashlight to see inside the car does not make improper that which would have been proper during daylight hours.

Appellee counters the plain view doctrine is inapplicable to the present case because of the suppression court’s factual finding that in light of the conflicting testimony of the officer and the appellee, the Commonwealth failed to prove the gun was in plain view.

Our standard of review on appeal from a suppression ruling is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are in error. Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075 (1991); Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1987). We hold the trial court’s legal conclusion the gun could not have been in plain view because of the use of a flashlight was in error and accordingly reverse the suppression court’s Order.

Both the United States Constitution (fourth amendment) and Pennsylvania Constitution (Article I, § 8) prohibit unreasonable searches and seizures. Generally, a search is reasonable when it is conducted pursuant to a warrant supported by probable cause. Commonwealth v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341 (1990), citing Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of the exceptions to the rule regarding warrantless searches arises where the contraband is in plain view. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985). In Commonwealth v. Davidson, 389 Pa.Super. 166, 566 A.2d 897 (1989), the court set forth the applicable test:

For the plain view doctrine to apply, three elements must be satisfied: 1) the initial intrusion must be lawful; 2) observation of the item must be inadvertent; and 3) there must be probable cause to link the observed property with criminal activity.

Id., 389 Pa.Superior Ct. at 175, 566 A.2d at 901 (citations omitted). Clearly the officers’ initial stopping of appellee for stealing gas and for violating the Motor Vehicle Code was lawful. There is also no doubt Officer Guthrie had probable cause to believe the gun under the driver’s seat was evidence of a crime, since the gun appeared to be further incriminating evidence linking appellee to the gasoline theft which had been reported.

The contested issue is whether the officer’s observation of the butt of the gun was inadvertent. During the suppression hearing the court implied that use of a flashlight to view inside the car meant the observance could not have been inadvertent. The court stated that had it been daylight, the officer would have had the right to seize the weapon under the plain view doctrine. He concluded he did not think the officer had the right to use a flashlight to invade the privacy of a citizen without probable cause (S.T., 8/9/90, p. 55).

Relevant case law on this issue clearly shows the use of flashlights during the observation does not negate plain visibility. Milyak, supra. In Milyak, our Supreme Court held officers who observed stolen items through the windows of a van with the aid of a flashlight were justified in seizing the items. In Commonwealth v. Bentley, 276 Pa.Super. 41, 419 A.2d 85 (1980), when an officer arrived at the scene of an accident, the defendant quickly locked his car and fled with friends in another car. The officer subsequently looked in the window of the station wagon with the aid of a flashlight and observed the barrel of a gun on the floor in front of the driver’s seat. The court held:

The fact that [the officer] required illumination from a flashlight to see into the darkened interior of the vehicle did not prevent the gun from being in plain view or render the policeman’s conduct unreasonable. The plain view doctrine is premised, not, as appellant argues, upon the absence of an investigatory intent by the policeman, but upon the surrender of a reasonable expectation of privacy by the owner.

Id., 276 Pa.Superior Ct. at 48, 419 A.2d at 88 (citations omitted).

Appellee asserts notwithstanding the fact the flashlight was used, the (Commonwealth failed to prove by a preponderance of the evidence the item seized was in fact in plain view. Although the suppression court’s holding was based on conflicting testimony that it was not clear whether the gun seized was in plain view, it inferred the reason for this conflict was the officer’s use of the flashlight. After reviewing the record, we find the officer did observe the gun in plain view. The officer testified he saw the butt of a gun underneath the seat of the driver’s side of the car when appellee exited the vehicle and he proceeded to reach in and remove the gun. Appellee testified the officer conducted the search as follows:

Well, he shined the flashlight around on the seat and on the floors and that, and then he seemed to go right to where the gun was, under the driver’s side of the seat, it was a bench seat and he pulled the gun right out like he knew it was there after he searched around.

(S.T., p. 36.) Appellee’s statement that the officer pulled the gun out of the car “like he knew it was there” seems to corroborate the officer’s testimony that he saw the butt of the gun from outside the car. Thus it does not appear the officer conducted a general search but instead he just seized the gun which he observed in plain view.

In light of the foregoing discussion, we reverse the trial court’s suppression Order and remand the case for trial in accordance with this Opinion.

Jurisdiction relinquished.

BECK, J., concurs in the result.

      . The Commonwealth offers the following as alternative arguments: the gun was properly seized incident to appellee’s lawful arrest; the search was justified as a protective sweep to ensure the safety of the officers; and the gun would have been inevitably discovered pursuant to a valid inventory search. In view of our finding regarding the plain view exception, these alternative arguments need not be addressed by this Court.

      . The judge specifically asked both parties to find appropriate case law concerning a search were police officers used flashlights:
      See, we don’t have a plain view search here at all. It can’t be because he [Officer Guthrie] was aided, you know. You’re in darkness. I’m very familiar with that section. I’ve gone by it hundreds of times in my lifetime_ There’s not much light at the scene.... If they would have discovered the gun as a result of an inventory search of the car, which is an appropriate police procedure at the pound or wherever they’re towing the car to. I think it’s absolutely admissible and you would have whatever defenses you might have as to whether he knew or didn’t know whether it was his gun or not his gun, whether it was his car or not his car. I think you [the Commonwealth] better find out whether the officer can use a flashlight under this factual situation, I’ll be happy to get my law clerk on it right away and read what you want me to read. I think there’s a whole line of cases about whether their factual situation would allow them that kind of intrusion and I think before we go forward I think we better find the answer to that.
      (S.T., 8/9/90, pp. 43-44.) The parties, however, failed to produce any case law to aid the judge in his ruling.


author: HESTER, Judge:

text:
    600 A.2d 1300
    COMMONWEALTH of Pennsylvania, Appellant, v. Raymond W. STYLER.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1991.
    Filed Oct. 23, 1991.

      Karen L. Grigsby, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    John P. Cotter, Philadelphia, for appellee.
    Before JOHNSON, FORD ELLIOTT and HESTER, JJ.
   HESTER, Judge:

The Commonwealth appeals from the order entered in the Court of Common Pleas of Philadelphia County on December 17, 1990, which quashed a first degree murder charge against appellee, Raymond W. Styler. For the reasons set forth below, we reverse and remand for further proceedings.

The procedural history of this case may be summarized as follows. On September 8, 1990, shortly after Anthony Moore was stabbed to death outside a Philadelphia delicatessen, appellee was arrested and charged with both murder and possessing an instrument of crime. Twelve days later, the Honorable James DeLeon conducted a preliminary hearing and bound appellee over for trial on each of the charged offenses. Subsequently, appellee, asserting that the evidence presented by the Commonwealth failed to establish that he acted with either malice or a specific intent to kill, challenged Judge DeLeon's decision with respect to the murder count in a motion to quash the return of the transcript. On December 16, 1990, the trial court considered that motion, concluded that appellee correctly characterized the state of the evidence with regard to his intent, and quashed the first degree murder portion of the generic murder charge. This timely Commonwealth appeal followed.

The Commonwealth contends that since it presented sufficient evidence at the preliminary hearing to support a charge of first degree murder, the trial court’s quashal of that charge was erroneous. In considering the merits of this claim, we initially note that the standard utilized for determining the sufficiency of the evidence presented at a preliminary hearing is well-established.

At a preliminary hearing the Commonwealth bears the burden of establishing a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Wojdak, 502 Pa. 359, 367, 466 A.2d 991, 995 (1983). To sustain that burden the Commonwealth must produce evidence that, if accepted as true, would warrant the ... trial judge to allow the case to go to the jury. Id. [466 A.2d] at 995-996. The prima facie standard requires that the Commonwealth produce evidence of the existence of each and every element of the crime charged; consequently, absence of evidence of a material element is fatal. Id. [466 A.2d] at 996-997. This standard does not require that the Commonwealth prove the elements of the crime beyond a reasonable doubt nor that evidence is available that would prove each element at trial beyond a reasonable doubt. Commonwealth v. Snyder, 335 Pa.Super. 19, 23, 483 A.2d 933, 935 (1984).

Commonwealth v. Austin, 394 Pa.Super. 146, 150-51, 575 A.2d 141, 143 (1990) (emphasis in original). Keeping these principles in mind, we now consider the evidence presented by the Commonwealth during the hearing.

At the preliminary hearing, the Commonwealth presented stipulations indicating that Anthony Moore died of a stab wound to the chest, that two detectives interviewed appellee following the stabbing, and that exhibit 1 was a true and correct copy of the statement given by him at that interview. In pertinent part, that statement, which the Commonwealth subsequently introduced into evidence, states:

I finished work [at] about 9PM last night. I walked over to my moms [sic] house ... and changed my clothes and washed up. I walked back to the shop on Baltimore Av. [sic] I was taking my work clothes for the next day back to the shop. I stayed at the shop, sitting on the steps there until about 11:30PM or something to 12. I had a beer there. I left there and walked to BUBU’s Deli in the shopping center at 58th & Baltimore Av. [sic] I was going to get another beer and walk back to the shop. When I got outside of BUBU’s, Ant [the victim] walked over to me and slapped. He slapped me across the neck. He started pushing on me. Then he stopped and went into BUBU’s and sat down inside and drank a beer. I stayed outside and was talking to a friend. I was waiting for Ant to come out so I could go in and get my beer. Then Ant came out and ran over to me and tried to throw me down to the ground. I stabbed him. Ant ran and I just walked away from it.

Exhibit 1 at 3-4.

According to 18 Pa.C.S. § 2502(a), the crime of first degree murder is defined as an intentional killing. Since it is uncontested that appellee killed Mr. Moore, the determination as to the correctness of the Commonwealth’s claim hinges upon whether the evidence established that the killing probably had been committed intentionally. In this regard, we note that it long has been clear that a specific intent to kill may be implied from the deliberate use of a deadly weapon upon a vital part of the body. See Commonwealth v. Austin, supra. The term “deadly weapon” may be defined as “any device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.” 18 Pa.C.S. § 2301.

In the present case, there can be little doubt that the knife utilized by appellee was a deadly weapon since it caused the death of Mr. Moore. In addition, appellee’s statement, by indicating that he stabbed Mr. Moore when the latter attempted to throw him to the ground, indicates that his use of that weapon upon a vital part of Mr. Moore’s body was a deliberate response to Mr. Moore’s conduct. Compare Commonwealth v. Austin, supra (as the defendant, unlike the appellee in the present case, indicated in his statement that he merely had swung his knife at victim rather than deliberately plunging it into him, we concluded that the Commonwealth was not entitled to the inference raised from the use of a deadly weapon upon a vital portion of the body). Consequently, we find that the evidence presented by the Commonwealth at the preliminary hearing established the probable existence of appellee’s specific intent to kill Mr. Moore and conclude that it was sufficient to bind appellee over to the jury on the charge of first degree murder.

Order reversed and case remanded for further proceedings. Jurisdiction relinquished.

      . We note that in Philadelphia County such a motion is equivalent to a petition for a writ of habeas corpus. See Trial court opinion at n. 1.