author: TAMILIA, Judge: BROSKY, Judge,

text:
    538 A.2d 552
    Marlene M. SCHEIDEMANTLE, Appellant at 1642, v. George J. SENKA, Appellant at 1643.
    Superior Court of Pennsylvania.
    Submitted Sept. 3, 1987.
    Filed Feb. 19, 1988.

      Mark A. Criss, Zelienople, for Senka.
    Before BROSKY, TAMILIA and KELLY, JJ.
   TAMILIA, Judge:

The parties to this action are divorced parents of a college-aged daughter, Lynn Senka. Both parties have remarried since their divorce.

On August 30, 1985, with Lynn’s consent, the plaintiff/mother filed a petition to modify support requesting on-going support for Lynn, who was then in college, and an increase in support for Lynn’s minor brother. In October 1985, the court ordered the father to pay $350 per month for support of the two children ($175 each). The father filed exceptions on October 28, 1985, arguing the domestic relations hearing officer had totally ignored substantial evidence that Lynn was totally unprepared, unqualified and unfit to attend college and obtain a degree. A hearing de novo was held on December 9, 1985 and May 27, 1986 and, on July 3,1986 (filed July 8,1986, hereinafter referred to as Order of July 8, 1986), the court issued findings of fact and conclusions on the question of whether father in this case has a legal duty to support his daughter in an institution of higher academic education when the facts seemed to indicate she might not have a reasonable chance of success in such a program.

The court concluded Lynn had failed to prepare herself for a college education and, based on her scholastic record, her father had no legal duty to contribute to an academic education for her at the college or university level. At the same time, the court concluded that both parents currently had earnings which would permit them to maintain Lynn in a state college without severe hardship. After reaching the foregoing conclusions, the trial court ordered the October 18, 1985 Order for support of Lynn Senka of $175 per month be rescinded as of November 1, 1985. Order of 7/8/86, p. 5.

Mother filed post-trial motions on July 22, 1986, urging error in the court’s determination that because of Lynn’s prior scholastic record, father has no legal duty to support Lynn while she attends college. Father filed preliminary objections to these post-trial motions, arguing mother was not a party to the action and thus lacked standing to file post-trial motions. The court issued a memorandum and Order on September 12, 1986, denying father’s preliminary objections and, except for a correction to its July 8th Order, otherwise dismissing both mother and father’s post-trial motions. Mother filed notice of appeal on October 10, 1986, from the September 12, 1986 Order. Father subsequently filed a notice of cross-appeal on October 23, 1986, also from the September 12, 1986 Order. Mother’s argument to this Court is that the trial court erred in determining that Lynn is not academically fit to seek a college education, and consequently deciding father has no legal duty to pay support for Lynn’s college pursuits. Father has appealed to argue that shpuld this Court reverse the trial court and find Lynn academically fit, we should not then affirm the court’s conclusion that he possesses sufficient income to make payments without incurring undue hardship.

Lynn enrolled in an elementary education course at Edinboro State University in August of 1985. At that time, she was an 18-year old graduate of Seneca Valley High School. While she was a senior at Seneca Valley, Lynn earned a C+ average; her grade average was, however, bolstered by A’s she received in courses such as physical education, mass media, contemporary issues and family living. She received a D in English fundamentals and withdrew from geometry because she was doing poorly.

The results of Lynn’s Scholastic Aptitude Test (S.A.T.) test, which she took in her junior year, do not prove her to be college material. She scored a 240 on the verbal section and a 320 on the math section. An expert witness, Dr. William Reed, filed a written report and testified at trial. Dr. Reed is a professional vocational rehabilitation specialist and is a member of the board of trustees of Point Park College in Pittsburgh, Pennsylvania. Dr. Reed testified that S.A.T. test scores range from 200 to 800 on each subtest, with an automatic score of 200 on each test for filling out the application appropriately. He further testified that 89 per cent of all college-bound students in Pennsylvania scored higher than Lynn did on the math section, and 96 per cent of all college-bound students in Pennsylvania did better than Lynn did on the verbal portion.

Nevertheless, Lynn was accepted by Edinboro State University during the summer of 1985. She testified she would have preferred to attend Indiana University of Pennsylvania, but they did not have dormitory space for her at the time she applied. Dr. Reed explained in his expert’s report:

[I]t appears that non-educational factors enter into the decision for accepting students who are ‘not college material’. Many of those other reasons seem to have an economic basis. Most colleges are in financial difficulty. They need the financial support of every student that they can get.

Defendant’s Exhibit 3 at p. 5.

One year at Edinboro University caused Lynn to incur a bill of $3,975 for both fall and spring tuition and boarding costs, plus an additional $150 per term for books.

At Edinboro in 1985-1986, Lynn completed courses and received grades as follows:

PALL TERM

COURSE TITLE GRADE

COLLEGE READING/STUDY SKILLS B

CURRICULUM INSTRUCTION TECHNIQUES B

BASIC WRITING SKILLS S

HISTORY OP U. S. W

MAN AND HIS MUSIC D

SPRING TERM

COURSE TITLE GRADE

PHOTOGRAPHY 1 D

COLLEGE WRITING SKILLS C

HEALTH & HUMAN SEXUALITY B

FOUNDATIONS OP MATH B

INTRO TO PHILOSOPHY C

While she finished with a cumulative grade average of 2.22, her grades presumably would have been lowered by her history grade, had she not withdrawn. Lynn testified that she withdrew from the course well into the semester because she knew she was doing poorly (H.T. 5/27/86, p. 16). Lynn then made application to and was accepted by Indiana University of Pennsylvania for the 1986-1987 school year.

When she is not at college, Lynn resides with her mother, who has remarried, and is now Marlene M. Scheidemantle. Mrs. Scheidemantle’s current husband, Wayne Scheidemantle, employs her at his school bus business, where she is a bus driver and performs office work. She testified that she normally earns gross income of $1,000 each month, for nine months of the year (H.T. 12/9/85, p. 12).

Lynn’s father, George Senka, was at the time of trial employed by H-Technical Services, Inc., as a draftsman. His gross earnings for the period from January 1, 1985 to October 31, 1985, were $24,672; he netted $18,651.09 for that same period. When questioned at trial about his income, father testified he had earned $9,000 in 1983 and $19,000-$20,000 in 1984, over a nine month period. He further testified his earnings fluctuate with the steel business since his drafting work is mostly for that industry.

On appeal, mother contends the trial court erred in determining that based on Lynn’s scholastic record, father has no duty to contribute to an academic education for Lynn at the college or university level. Mother urges that Lynn has shown, by successful completion of one academic year at Edinboro University with a C+ average (based on a 4-point scale with a grade of C being a 2, we question whether a 2.2 is actually a C+ average), and by her acceptance at Indiana University of Pennsylvania, that she is able and willing to successfully pursue her course of studies. Additionally, she argues father has the ability to pay for Lynn’s college without imposing an undue hardship on him. Father, however, appeals the trial court’s determination that he has the ability to pay without incurring undue hardship.

Our standard of review is clear. “On appeal, a child support order will not be disturbed unless the trial court committed an abuse of discretion. An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment.” DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987) (citing Kopp v. Turley, 359 Pa.Super. 106, 518 A.2d 588 (1986)). See Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984).

In DeWalt, supra, we recognized:

It is settled law in Pennsylvania that in absence of an agreement to educate ‘a father has no duty to aid in providing a college education for his child, no matter how deserving, willing or able a child may be, unless the father has sufficient estate earning capacity or income to enable him to do so without undue hardship to himself.’ However, a support order may be entered against a parent for a child’s college education, even in the absence of an agreement to support the child past the age of eighteen, as long as this obligation would not result in undue hardship to the parent.

The child in question must also possess the aptitude and the desire to successfully complete the course of studies he has chosen to pursue. (Citations omitted.)

DeWalt, supra 365 Pa.Super. at 287, 529 A.2d at 512. See Brown, supra.

The trial court, after considering both father and mother’s respective incomes, determined that sending Lynn to a state college would not place an undue hardship on them. The $4,000 amount which Edinboro State University charges for one full year’s tuition and room and board is affordable to both father and mother. The trial court went on to find Lynn did not possess the aptitude to successfully complete the course of studies she had chosen to pursue.

Having carefully reviewed this record, we must quash the appeal without deciding the merits of the issue of entitlement to support for college education, as the appeal was untimely. As noted above, the final Order in this case, entered on July 8, 1986, was followed by a series of post-trial motions by both parties, hearings and a further “final” Order dated September 12,1986 from which this appeal was taken. Pennsylvania Rule of Civil Procedure 1910.11 Office Conference. Subsequent Proceedings. Order, at subsection (k) provides: “(k) No Motion for Post-Trial Relief may be filed to the final order of support.”

In this case, the final Order was entered on July 8, 1986, and notice of appeal was filed on October 10th by the mother, notice of cross-appeal was filed by the father on October 23, 1986. Pennsylvania Rule of Appellate Procedure 903(a) requires an appeal be taken in this case within thirty (30) days of the Order from which the appeal is taken. The lower court’s acceptance of, and ruling on, the post-trial motions does not extend the time for filing of an appeal from the Order of July 8, 1986. Short of vacating that Order prior to thirty days from its entry to allow for reconsideration, the court had no jurisdiction thereafter to act on that Order and it was without authority to rule on post-trial motions as it was limited by Pa.R.C.P. 1910.11(k).

The fact we must quash this appeal does not, however, prevent the mother and child from seeking a modification of the Order of July 8, 1986, by virtue of a change in circumstance which would tend to establish the child’s ability to successfully manage college training, despite the adverse finding of the court in this proceeding.

Appeal and cross appeal quashed.

Jurisdiction relinquished.

BROSKY, J., filed a concurring opinion, joined by KELLY, J.

BROSKY, Judge,

concurring:

I agree with Judge Tamilia that this appeal must be quashed as untimely. However, having reached this result, I believe we should refrain from further commentary on the case. Additional commentary could prove misleading to those concerned while lacking appropriate authority. Specifically speaking, I believe this to be the case with regard to the characterization of the lower court’s findings in the majority opinion.

The majority opinion, at page 555, states: “the trial court went on to find that Lynn does not possess the aptitude to successfully complete the course of studies she has chosen to pursue.” I am not convinced, upon reviewing the record, that the trial court made such a finding as to Lynn’s aptitude. The trial court states among its conclusions:

2. Lynn failed to prepare herself for a college academic education. Her S.A.T. scores establish that she may not successfully pursue such a career.
3. Lynn is an attractive, articulate and apparently capable young woman who may succeed in doing what she now wants to do if that continues to be her state of mind.

(Emphasis added). Although the trial court expresses doubt as to the likelihood that Lynn will be successful in earning a degree, the court does not find that she is incapable of earning a degree.

Aptitude is tantamount to capability or capacity. Although this may sound like an overly technical distinction, I believe it is an important one. Even individuals with the highest of aptitudes sometimes fail to earn a degree. The reason they fail to successfully complete the course of study may be attributable to many factors, but all that can be said about their superior aptitude is that it makes them more likely to succeed than those with less aptitude. Conversely, even individuals with lesser aptitudes may indeed graduate, and the likelihood of this event increases as they come closer to completion of the course of study. I find this important because, inasmuch as I read the trial court’s decision to refuse educational support as one based greatly upon the uncertainty of Lynn’s eventual success, and a belief that a parent should not be ordered to help finance a risky, frivolous or imprudent venture, I would not wish to see the door closed upon a future attempt of Lynn’s to demonstrate a greater likelihood of success which might then warrant an award of support, even for the course of study she is currently pursuing. Perhaps Lynn lacked sufficient motivation in high school to reach her potential, or, perhaps, her first two years of collegiate study have helped to remedy some of her academic deficiencies, or perhaps she is simply a “late bloomer.” We are mindful that the great scientist, Einstein, who gave us the formula for the theory of relativity, had flunked mathematics in his youthful school years. However, if the trial court’s determination is construed as one that Lynn does not possess the aptitude to complete the course of study she is currently pursuing, it could work against her in a future effort to obtain support, in this field of endeavor or another, for although one may petition again for support based upon a new set of, or a change in, circumstances, one may not relitigate a previously decided fact or issue in the new proceedings. Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1984), Dunbar v. Dunbar, 291 Pa.Super. 224, 435 A.2d 879 (1981). Consequently, for the reasons stated above, I concur in the result reached by the majority.

KELLY, J., joins in this opinion.

      . By letter addressed to members of the panel, submitted without permission of the court, see Pa.R.A.P. 2501(a), counsel for appellant Marlene Scheidemantle conveyed information concerning Lynn’s successful completion of her second academic year and acceptance to the third academic year. This information is not part of the record and cannot be a basis for our consideration. Appellant is not foreclosed from petitioning the trial court for reconsideration if the new information would warrant it.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    538 A.2d 557
    COMMONWEALTH of Pennsylvania v. Donald WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 13, 1987.
    Filed Feb. 29, 1988.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

Appellant, Donald Williams, was tried before a jury and found guilty of robbery and possession of an instrument of crime. Post-trial motions were denied. Appellant was sentenced to eight (8) to twenty (20) years imprisonment on the robbery charge and a concurrent term of two and one-half (2V2) to five (5) years on the possession of an instrument of crime charge. This appeal followed, and we affirm.

Appellant presents two issues for our review on appeal: (1) whether reversible error was committed when the trial court permitted the Commonwealth to impeach the most critical defense witness with his convictions for crimes which were not crimen falsi; and, whether trial counsel was ineffective for failing to object to the charge of the trial court which failed to define the elements of robbery to the jury.

First, appellant contends that reversible error was committed when the trial court permitted the Commonwealth to impeach the defense’s chief witness, Gannon Haskins, with his convictions for resisting arrest and assault, neither of which could be considered crimen falsi. Appellant further contends and the record shows that defense counsel immediately objected to such impeachment of Mr. Haskins by the Commonwealth. An in camera proceeding was held, and the trial court overruled defense counsel’s objection based on the Commonwealth’s argument that there is a difference between impeaching a defendant and impeaching a witness:

MR. CAYER: Again, I am moving for a mistrial. I think he can clearly ask a witness where he is entitled to impeach, he can ask him about crimes that he had been convicted of, crimen falsi. But assault is certainly not crimen falsi. The reason he is doing it and the reason he is pursuing it as he has the whole line of questioning, is to discredit the character of the witness by improper impeachment. There is no way this jury can hear this fairly now because of the obvious prejudice which he has engendered by his questions.

MR. SILVERSTEIN: Your Honor, this is not the defendant that is being cross-examined. And I am entitled to impeach him by any convictions.

MR. CAYER: I disagree. I think the law is very clear on it, that it is also crimen falsi as to any witness.

MR. SILVERSTEIN: Only as to defendants.

THE COURT: With defendants, if it is crimen falsi. And character witnesses, you can only ask them about those convictions that he knows about. But a witness can be impeached and I am so ruling.

MR. SILVERSTEIN: That is the point, this is a witness.

MR. CAYER: By convictions of crimen falsi.

MR. SILVERSTEIN: By anything.

THE COURT: I am ruling that way. It is on the record. Your rights are protected.

(N.T. May 5, 1986, pp. 111-12).

In Commonwealth v. Penn, 497 Pa. 232, 244, 439 A.2d 1154, 1160 (1982) cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982), the Pennsylvania Supreme Court held:

It is well settled that a witness may be impeached on the basis of a prior conviction only if the crime involves dishonesty or false statement. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980) (citing cases).

In addition, the Court recently modified the rule to the following extent:

[EJvidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date. If a period greater than ten years has expired the presiding judge must determine whether the value of the evidence substantially outweighs its prejudicial effect.

Commonwealth v. Randall, 515 Pa. 410, 415, 528 A.2d 1326, 1329 (1987).

Thus, in the instant case, we find that the trial court erred in permitting the Commonwealth to impeach the defense’s chief witness, Gannon Haskins, with his convictions for resisting arrest and assault since neither offense involves dishonesty or false statement. We conclude that the same rules apply for impeaching a witness as for impeaching a defendant. Commonwealth v. Randall, supra; Commonwealth v. Penn, supra.

However, both the Commonwealth and the trial court assert that, even if the impeachment of defense witness Gannon Haskins by the Commonwealth with convictions which were not crimen falsi was error, such error was harmless at best.

In Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978), the Court ruled:

We adopt the standard that an error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict. Whenever there is a “ ‘reasonable possibility’ ” that an error “ ‘might have contributed to the conviction,’ ” the error is not harmless. Commonwealth v. Davis, 452 Pa. [171] at 178, 305 A.2d [715] at 719 [ (1973) ], quoting Chapman v. California, 386 U.S. [18] at 24, 87 S.Ct. [824] at 828 [(1967)].

Moreover, the Court in Commonwealth v. Norris, 498 Pa. 308, 317, 446 A.2d 246, 250 (1982) stated:

Under the test adopted by this court in Commonwealth v. Story, supra, evidence improperly admitted can be treated as harmless on any one of three grounds, namely, that the evidence of guilt, without regard to the tainted evidence, is so overwhelming that conviction would have followed beyond a reasonable doubt without regard to it, that the tainted evidence was merely cumulative of other proper persuasive evidence on the issue for which it is offered, or that it was so slight or tangential in its effect that its influence on the jury can be determined to have been de minimis.

The burden of establishing that the error in question was harmless rests with the Commonwealth. Commonwealth v. Story, supra.

In the instant case, we find that the effect of Haskins’ impeachment upon the jury was, in viewing the record as a whole, de minimis.

At trial, the Commonwealth presented the testimony of two (2) eyewitnesses to the actual robbery and appellant’s involvement therein, i.e., William Blau, the victim, and Philadelphia Police Officer John Livewell. In addition, the Commonwealth offered the testimony of witnesses Willie Daniels, Jr., and Philadelphia Police Officer Edward Kelly in order to establish that appellant had a gun in his possession at the time of the robbery.

William Blau testified that, on January 20, 1984, he was in the process of opening the door of his check cashing agency, located at 1137 Spring Garden Street, when the appellant came up from behind and pushed him. Mr. Blau further testified that, upon turning around, he was informed by the appellant that he had a gun and that this was a holdup. Upon being told by Blau that the truck which delivers money for his business had not yet arrived, appellant turned and walked away.

Officer John Livewell then testified that, as he was driving by Mr. Blau’s business establishment on the way to a court appearance, he observed the robbery in progress. Officer Livewell identified the victim of the alleged robbery as William Blau and the perpetrator of said crime as the appellant. At the time in question, Officer Livewell was traveling in his own personal vehicle but was dressed in uniform. He stated that, as he drew his service revolver and started toward the appellant and Mr. Blau, appellant began to run. Officer Livewell then pursued the appellant.

Moreover, William Daniels, Jr., a former police officer who, at the time of the robbery, was working as an investigator for the Pennsylvania Department of Revenue, testified that, as he was driving through the area of the alleged crime on the date and time in question, he saw appellant throw something into a sewer inlet. Officer Edward Kelly then testified that he recovered a .32 Kimel revolver loaded with four (4) rounds of ammunition from the inlet.

On the other hand, Gannon Haskins, the defense’s chief witness whom the appellant allegedly discovered five (5) months after the date of the robbery, testified that he observed the robbery and that it involved three (3) men who ran from the scene. He stated that appellant was not one of those men. Haskins further testified that the appellant merely walked around the corner and was immediately confronted by the police. Appellant then fled.

In his own defense, appellant took the stand and testified that he was in the vicinity of the alleged crime in order to look for employment. He testified that he merely turned a corner and was confronted by three (3) men who were running and then by the victim, William Blau, who was pointing at him and was screaming that he had been robbed. Appellant admitted that he then fled the scene and was later arrested.

The trier of fact did not believe the testimony of Gannon Haskins and the appellant and found the appellant guilty as charged. After a careful study of the record, we agree with the Commonwealth’s contention that “[in] order to believe Haskins’ testimony, the jury would have to completely reject the testimony of the victim, two police officers, and an eyewitness with no interest in the outcome of the case.” (Appellee’s Brief, p. 3). The same applies to the appellant’s testimony. Thus, the record shows that there was abundant evidence upon which to convict the appellant.

Therefore, based on the aforesaid, we cannot say that the impeachment of Gannon Haskins with crimes not involving crimen falsi was so prejudicial that our only recourse was to grant him a new trial. We determine that the Commonwealth has established beyond a reasonable doubt that the error in question did not contribute to the jury’s verdict. Commonwealth v. Norris, supra; Commonwealth v. Story, supra.

In addition, Gannon Haskins’ past criminal activity was in evidence aside his impeachment by the Commonwealth with his convictions for resisting arrest and assault. The record shows that Haskins revealed on cross-examination that he was a resident of Holmesburg. (N.T. May 5, 1986, p. 106). The record also reveals that Haskins was released on parole on January 10, 1984, twenty (20) days before the robbery. (N.T. May 5, 1986, p. 110). Moreover, appellant testified, and Haskins’ confirmed that, after he went into custody for the present offense, he met Gannon Haskins in the same institution where he was being confined. (N.T. May 6, 1986, p. 148). Thus, we agree with the Commonwealth that “[tjhese independent facts rendered mention of Haskins’ non-crimen falsi convictions redundant, superfluous and harmless.” (Appellee’s Brief, p. 3). Commonwealth v. Norris, supra; Commonwealth v. Story, supra.

Appellant also contends that trial counsel was ineffective for failing to object to the charge of the court which failed to define the elements of robbery to the jury. We disagree.

The standard for evaluating the effectiveness of counsel is set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967):

We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weight the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.

However, our initial inquiry is whether the issues counsel is charged with not pursuing were of arguable merit. If we conclude that issues were of arguable merit, then and only then do we proceed to inquire whether the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 695-96 (1977).

Counsel is presumed to have rendered effective assistance. The burden of proving to the contrary rests with the defendant. Commonwealth v. Murray, 338 Pa.Super. 580, 584, 488 A.2d 45, 46 (1985). Additionally, appellant must demonstrate that he was prejudiced by counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

In the instant case, the trial court charged as follows:

The defendant is presumed to be innocent of a crime for which he has been charged. An Information is only a formal accusation by the Commonwealth charging a defendant with a crime. A defendant, by pleading not guilty, denies that he has committed the crime. The fact that a defendant has been charged with a crime cannot be considered by you as any evidence of his guilt. The law doesn’t require the defendant to prove his innocence, the state must prove his guilt beyond a reasonable doubt.

This burden of proving the defendant’s guilt requires the Commonwealth to prove every element of the crime beyond a reasonable doubt. The Commonwealth’s burden of proving the defendant’s guilt never shifts and remains on the Commonwealth through the entire trial.

A reasonable doubt is such a doubt as would restrain a reasonable person from acting in a matter of importance to himself. It is not such a doubt one might summon up for the purpose of escaping the consequences of an unpleasant verdict. But as the term implies, it is a doubt which is reasonable, an honest doubt arising out of the evidence itself.

Now, each charge against this defendant must be separately considered by you and you may find the defendant not guilty on one and guilty on the other.

Therefore, if after a consideration of all the evidence, the arguments of counsel and my instructions, you have a reasonable doubt of the defendant’s guilt in respect to any charge, you should find him not guilty on that charge.

But if you have no reasonable doubt of the defendant’s guilt on a charge or charges, you should find him guilty of that charge or charges.

(N.T. May 6, 1986, pp. 202-204).

Now, the charges against this defendant. Possessing an instrument of crime. It is very simple, we are talking about a gun. Ask yourselves these questions: Did this defendant have a gun? Was this gun something used by the defendant for an illegitimate purpose or not a proper purpose, an improper use? And was it used for a criminal purpose? And if it was, and you answer yes to all those questions, you may find him guilty of possession of an instrument of crime. If you do not, you must find him not guilty.

The robbery. Did this defendant, in the course of attempting to commit a theft, and a theft, of course, is stealing, did he, in the course of an attempt to steal or commit a theft, place Mr. Blau in fear of serious bodily injury? Did he threaten him by putting the gun in his belly with serious bodily injury?

Now, serious bodily injury is the kind of injury where you can lose the use of an organ of your body, a part of your body, an arm forever or for a long period of time. You could be scarred forever or for a long period of time. Where there is even the risk of death, there is this risk of death. And if Mr. Blau was placed in that fear, then it would be a robbery. The fact that it failed has nothing to do with it.

(N.T. May 6, 1986, pp. 207-209).

In Commonwealth v. Larkins, 340 Pa.Super. 56, 66, 489 A.2d 837, 842 (1985), this Court ruled:

Appellate review of the charges of the court for prejudicial and reversible error requires that the charge be read and considered in its entirety; error will not be predicated upon isolated excerpts. It is the general effect of the charge which controls. Commonwealth v. Fields, supra; Commonwealth v. Romeri, 314 Pa.Super. 279, 460 A.2d 1139 (1983); Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1002 (1980); Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978). A trial court is not required to accept a requested instruction verbatim so long as the court’s charge adequately, accurately and clearly explains the principles of law to the jury. Commonwealth v. Rhem, 283 Pa.Super. 565, 424 A.2d 1345 (1980).

Thus, after applying the standards set forth in Commonwealth v. Larkins, supra, and reading the charge as a whole, we find that the trial court properly instructed the jury on the Commonwealth’s burden of proof, the reasonable doubt standard and the definition of robbery. Despite appellant’s assertion to the contrary, we find that the trial court did “inform the jury that the crime of robbery was composed of several elements and that each defined element had to be proved beyond a reasonable doubt, before the jury could return a conviction on the robbery bill.” (Appellant’s Brief, p. 8). The trial court clearly defined the elements of both robbery and possession of an instrument of crime to the jury through its use of a series of questions which the jurors were to answer. Therefore, after a careful study of the record, we find appellant’s dispute, in reality, not to be with the substance of the trial court’s charges but rather with the wording of the charge, an area over which the trial court has broad discretion. Commonwealth v. Larkins, supra.

Thus, appellant’s claim concerning the trial court’s charge is meritless, and counsel will not be deemed ineffective for failing to assert a meritless claim. Commonwealth v. Hubbard, supra.

Judgment of sentence is affirmed.


author: MONTEMURO, Judge:

text:
    538 A.2d 562
    UHL CONSTRUCTION, a Pennsylvania Corporation, and Transamerica Insurance Company, a California Corporation, Appellant, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, a Maryland Corporation, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1987.
    Filed Feb. 22, 1988.

      Russell C. Miller, Allison Park, for appellant.
    Daniel J. Weis, Pittsburgh, for appellee.
    Before MONTEMURO, POPOVICH and HESTER, JJ.
   MONTEMURO, Judge:

This appeal concerns a judgment entered by the Court of Common Pleas of Allegheny County holding Fidelity & Deposit Company of Maryland (“Fidelity”) liable to Uhl Construction Company, Inc. (“Uhl”) and Transamerica Insurance Company (“Transamerica”) in the amount of $13,-490.00. The events leading to this appeal began when the owners of the Reformed Presbyterian Home in Pittsburgh, Pennsylvania, contracted with Uhl for structural restoration of the Reformed Presbyterian Home. Uhl acquired a labor and material payment bond from Transamerica. This bond named Uhl as principal and the owners of the Home as the obligee. By the specific terms of the bond, Transamerica, as surety, accepted joint and several liability with Uhl for the payment of both labor and material costs reasonably incurred by Uhl or any of Uhl’s subcontractors in the completion of the restoration of the Home.

Uhl awarded a subcontract for the interior finishing work of the Home to Precision Building Systems, Inc. (“Precision”). Precision acquired a labor and material bond from Fidelity. This bond named Precision as the principal and Uhl as the obligee. By the terms of this bond, Fidelity became the surety for payment of the labor and material costs incurred by Precision in the performance of its subcontract with Uhl for interior construction of the Home. During the course of its performance of the subcontract, Precision bought construction materials from Pittsburgh Builders Supply Company (“Pittsburgh”). The record before us contains copies of approximately forty-two sales invoices, dated between August and December of 1982, identifying with particularity the construction materials furnished by Pittsburgh to Precision for use in the Reformed Presbyterian Home job. Precision performed some of the interior finishing work on the Home but was unable to complete its subcontract with Uhl. As a result of Precision’s default, Uhl undertook the completion of Precision’s subcontract.

On March 22, 1983, Pittsburgh filed a complaint against Uhl and Transamerica, seeking $42,000.00 for construction materials supplied by Pittsburgh to Precision for the Presbyterian Home job. Pittsburgh’s cause of action was based upon the labor and material payment bond which Transamerica had issued to Uhl. Uhl and Transamerica brought Precision and Fidelity into the lawsuit as additional defendants. Thereafter, Uhl paid the $42,000.00 claim to Pittsburgh and received an assignment of Pittsburgh’s claim. Trial Ct. Order, 10/3/84. On December 18, 1985, a non-jury verdict was entered by the Allegheny Court of Common Pleas, holding Fidelity liable to Uhl and Transamerica in the amount of $55,490.00. Fidelity filed a motion for post-trial relief, challenging its obligation to pay the $42,000.00 in construction material cost. Fidelity contended that the labor and material bond was ineffective due to lack of delivery and, in the alternative, that Pittsburgh had been fully paid by Precision for materials used in the Presbyterian Home job but had “misapplied the funds received from Precision Builders to other jobs rather than the job involved in this case to the prejudice of a surety.” Appellee’s Motion for Post-Trial Relief, 1/3/86.

On June 23, 1986, the trial court entered an amended non-jury verdict reducing Fidelity’s liability to $13,490.00. In its memorandum opinion, the court concluded that Fidelity’s labor and material bond was effective. Further, it was apparent that during the period of time in which Precision was working on the Presbyterian Home job, Precision made payments to Pittsburgh from the subcontract proceeds Precision received from Uhl. These payments from the Uhl subcontract proceeds completely covered the cost of materials which Precision had purchased and used in the Presbyterian Home job. However, Precision had a running account with Pittsburgh and owed Pittsburgh for materials which it had purchased and used in jobs it had undertaken prior to the Presbyterian Home job. As a result, when Pittsburgh received a payment from Precision, it applied the payment to the oldest outstanding debt in Precision’s running account. It is undisputed that when Precision made payments from the subcontract proceeds it received from Uhl, Precision did not direct Pittsburgh to apply such payments to the debt from the Presbyterian Home job. Op. of Trial Court at 4. Thus, the $40,000.00 debt for materials supplied to Precision for the Presbyterian Home job remaining in Precision’s account can be attributed to the manner in which Pittsburgh applied Precision’s payments.

The trial court found that “Pittsburgh knew that the funds paid to it by Precision had been furnished by Uhl for labor and materials supplied by Pittsburgh for the Reformed project.” Op. of Trial Court at 3. Our thorough review of the briefs and record in the instant case reveals that it is uncontested that Pittsburgh knew that the source of Precision’s payments was the proceeds of a bonded construction job. As a result of Pittsburgh’s admitted knowledge, the trial court concluded that Pittsburgh had a duty to apply these payments to the debt arising from the Presbyterian Home job. Op. of Trial Court at 4. Therefore, the trial court concluded that Fidelity had no obligation to reimburse Uhl and Transamerica for the $42,-000.00 paid to Pittsburgh for construction materials. Uhl and Transamerica thereafter filed an appeal with this Court.

The issue that we must decide in this case can be expressed as follows:

Is the supplier of materials to a contractor in a bonded construction project under a duty to apply the contractor’s payments to the debt relating to the bonded project, when the supplier knows that the contractor’s payments are being made from the funds of the bonded project?

This specific issue is an issue of first impression in this jurisdiction. We find the trial court erred in concluding that the case of Toll-Barkan Co. v. Toll, 193 Pa.Super. 221, 164 A.2d 36 (1960) required the result reached by the trial court in the instant case. In Toll, a housing developer and a contractor had agreed on a bonus payment to the contractor in the event that a certain group of homes was completed within a one year period. During the construction process, the contractor received a series of progress payments from the developer. The developer did not designate how these payments were to be applied by the contractor, and the contractor applied them toward payment of the bonus. The contractor completed the group of homes within the one year period and then submitted a bill for $9000.00 which remained due on the construction of several of the homes. The developer contended that there had been no agreement for the payment of a bonus and that the contractor, as a creditor, did not have a right to apply progress payments to a disputed or contested debt. See Page v. Wilson, 150 Pa.Super. 427, 28 A.2d 706 (1942). The Toll court found that the contractor was within his rights as a creditor in applying the progress payments to the bonus payment due to him, reasoning that “after the trial judge found the bonus claim to be valid, the appropriation of the $10,000.00 to it was proper whether made by the court or as having been made previously by the claimant.” Toll, supra 193 Pa.Super. at 226, 164 A.2d at 39. The court quoted the following as the controlling law guiding its decision:

The debtor has a right to make the application, in the first instance, and failing to exercise it, the same right devolves on the creditor. When no application is made by either party, the law determines how the payments are to be applied in accordance with equitable rules and principles, and primarily, it deems the payments to be made in discharge of the earliest liabilities of a running account — each item of credit is applied in extinguishment of the earliest debit items in the account; in other cases, it will apply payment, when not appropriated by either party, in the way most beneficial to the creditor, that is, to the debt least secured, unless to the prejudice of a surety.

Id., 193 Pa.Superior Ct. at 225, 164 A.2d at 38 (quoting Page v. Wilson, 150 Pa.Super. 427, 433, 28 A.2d 706, 709 (1942)) (emphasis added). Thus, it is a general rule in Pennsylvania law that where a debtor owes more than one debt to a creditor, the debtor has the first right to specify the particular debt to which a payment is to be applied. If the debtor does not exercise this right, the creditor may apply the money to one or more of the debts in any manner in which he chooses. If neither the debtor or the creditor has made an application of the payment, then the law will make an application. See Bolgen v. Progressive Composition Co., 430 Pa. 140, 242 A.2d 269 (1968); In re Woods’ Estate, 350 Pa. 290, 38 A.2d 28 (1944); Pardee v. Markle, 111 Pa. 548, 5 A. 36 (1886); Page v. Wilson, supra.

In the case before us, we must determine whether Pittsburgh’s right as a creditor of Precision to make an application of Precision’s payments is an unqualified right. The only limit imposed by our courts upon a creditor’s right of application was defined in Page v. Wilson, supra, where the court stated that a creditor may not apply payments to a disputed or contested debt and thus prevent a debtor from litigating the validity of the debt. Id. 150 Pa.Super. at 435, 28 A.2d at 710. See also Toll-Barkan Co. v. Toll, supra 193 Pa.Super. at 226, 164 A.2d at 39. The instant case does not involve a disputed or contested debt.

Other jurisdictions have addressed issues similar to the one we now face and have reached conflicting results. One line of decisions has held that a supplier’s right to make an application of payments is limited where the supplier “receives payment from the contractor with knowledge of the fact that the money comes from the particular construction job with respect to which the surety is liable ...” Couch on Insurance 2d (Rev ed) § 47:74. Thus, it has been held that if a supplier knows that money paid to him is from a particular bonded job, the supplier is under a legal duty to apply that money to the debt stemming from the bonded job, thus providing a protection for the surety. This limitation on a supplier’s right to determine the application of his debtor’s payments on a running account is “sometimes grounded upon abstract considerations of equity and justice, and sometimes upon an implied contractual obligation to the surety and his principal.” American Oil Company v. Brown Paving Company, 298 F.Supp. 528, 535 (D.C.S.C. 1969) (citations omitted). See U.S. For West Chester Electric Co. v. Sentry Insurance, 774 F.2d 80 (4th Cir.1985); St. Paul Fire and Marine Insurance Co. v. United States, 309 F.2d 22 (8th Cir.1962); United States Casualty Co. v. Noland, 286 F.Supp. 333 (M.D.N.C.1968); School District of Springfield v. Transamerica Insurance Co., 633 S.W.2d 238 (Mo.App.1982); Bain-Nicodemus Inc. v. Bethay, 40 Tenn.App. 487, 292 S.W.2d 234 (1954). See also 57 A.L.R.2d 855; 17 Am.Jur.2d Contractors’ Bonds § 110.

While we need not say that we would never find a limitation upon a supplier’s right to make an application of payments because of a superior interest of a surety, under the facts of the present case, Pittsburgh was within its rights in applying Precision’s payments to debts unrelated to this bonded construction job. We are persuaded by the decision of the Appeals Court of Massachusetts in Warren Brothers Co. v. Sentry Insurance, 13 Mass.App. 431, 433 N.E.2d 1253 (1982). In Warren, as in the instant case, a supplier received payments from a contractor and applied these payments to earlier, unsecured debts of the contractor even though the supplier knew that the payments were derived from the proceeds of a bonded contract. The Massachusetts court stated that “an absolute right in the surety to receive the benefit of a payment which the creditor knows to have issued from the proceeds of the bonded contract, we do not think ... fair or sound.” Id. at 437, 433 N.E.2d at 1257. The Warren court cited the following language from Standard Oil Co. v. Day, 161 Minn. 281, 201 N.W. 410 (1924):

[The identical source rule] leads to an instability in commercial business that does not have our approval. The creditor should not, in the collection of . his money, be burdened with the responsibility of having to know the status of his debtor’s accounts nor the status of the obligation of the surety of the debtor.

The surety in modern business should be, and usually is, quite able to care for itself. It selects those for whom it becomes surety. Most contractors and subcontractors must necessarily use some of their money that they receive in payment of obligations not incurred in the particular contract from which their money is received. When they receive money unconditionally, it is their own and they may do with it as they please. If a creditor must stop, before he accepts payments from his debtor, and make the impertinent inquiry as to his standing with his surety, the unsatisfactory results are obvious. Such a position not only gives undue regard to the surety, but is in utter disregard of the right to make private contracts and the obligation thereof. Suppose his tailor is delivering a suit of clothes which he has made for the subcontractor, and the latter tenders payment in funds which the tailor knows came from the work covered by a surety bond, must the tailor refuse it, or take it clothed with an equity that, perchance, later permits the surety to take it away from him? A surety is not entitled to such judicial mercies. The tailor has business perils of his own. The business of sureties is inherently one of constant peril and their imperative watchfulness for their general protection makes it less burdensome for them to guard against the emergency here under consideration and our view tends more to the stability of ordinary business.

Warren, supra at 437-438, 433 N.E.2d at 1257-1258 (citation omitted).

We believe that the public interest is best served by the free flow of commercial transactions. “Money released into trade should be permitted to circulate freely, unburdened by hidden equities or liens.” Templeton v. Sam Klain & Son, Inc., 400 N.E.2d 1198, 1202 (Ind.App.1980) (quoting Salt Lake City v. O’Connor, 68 Utah 233, 242, 249 P. 810, 814 (1926)). A surety, such as Fidelity in the instant case, has the necessary expertise and experience to protect itself. The surety is also in the best position to protect itself from the risk of loss which is inherent in the surety business. The position of the surety is in stark contrast to that of the material suppliers who cannot, consistent with reasonable business practice, constantly question their clients concerning the specific sources of the money used to pay them or the conditions which may exist upon their client’s free use of construction contract proceeds. It is not the responsibility of suppliers to oversee the finances of their client contractors. We note that Fidelity’s labor and material bond did not obligate Precision to direct application of any payments received from Uhl to unpaid bills for labor and material incurred in connection with the Presbyterian Home job. This is the case even though Fidelity must have known that contractors such as Precision hold running accounts with material suppliers to which they apply proceeds from current jobs in order to discharge previous, unrelated debts. Finally, we find it significant that Fidelity has not claimed that Pittsburgh acted in a fraudulent manner or in bad faith when it made the application of Precision’s payments. As a result, we find that Pittsburgh acted within its rights as a creditor/supplier of Precision.

Based upon the foregoing reasons, we vacate the amended judgment entered by the trial court on June 23, 1986. We reinstate the December 18, 1985 verdict entered by the trial court, holding Fidelity liable to Uhl and Transamerica in the amount of $55,490.00.

      . The owners of the Reformed Presbyterian Home are designated in the record before us as the Reformed Presbyterian Woman’s Association and the Union National Bank of Pittsburgh.

      . In addition to the labor and material bond, Fidelity had provided Precision with a subcontract performance bond covering the Presbyterian Home job. "A performance bond guarantees that the contractor will perform the contract, and usually provides that if the contractor defaults and fails to complete the contract, the surety can itself . complete the contract or pay damages up to the limit of the bond. A labor and material bond guarantees the owner that all bills for labor and materials contracted for and used by the contractor will be paid by the surety if the contractor defaults." 17 AmJur.2d, Contractors’ Bonds § 1. The trial court determined that Fidelity was liable to Uhl under the terms of the subcontract performance bond in the amount of $13,490.00. This determination by the trial court has not been challenged on appeal.

      . Each sales invoice prepared by Pittsburgh identifies Precision as the buyer of the construction materials and identifies the “Presbyterian Home, Perrysville” as the place for shipment.

      . This amount consisted of the $13,490.00 awarded under Fidelity’s subcontract performance bond and $42,000.00 awarded under Fidelity’s labor and material bond.

      . Fidelity had claimed in the trial court that it had never delivered the labor and material bond to Precision to cover the Reformed Presbyterian Home job. As a result of the absence of a delivery of the bond, Fidelity had claimed the labor and material bond was not valid and binding upon Fidelity. The trial court rejected Fidelity’s contention, concluding that the bond was effective because it had been delivered to an agent of Precision. Op. of Trial Court at 3. The appellant has not challenged this conclusion by the trial court on appeal and, therefore, we need not consider it.

      . Had Fidelity’s bond obligated Precision to direct payments in the manner Fidelity now seeks to enforce and Pittsburgh had been aware of this contractual duty on the part of Precision, Pittsburgh’s right to apply the payments otherwise would be doubtful. See Restatement (Second) of Contracts § 258(2) ("If the obligor is under a duty to a third person to devote a performance to the discharge of a particular duty that the obligor owes to the obligee and the obligee knows or has reason to know this, the obligor’s performance is applied to that duty"); Restatement of Security § 142(d) (“[Wlhere a principal makes a payment to a creditor with funds arising out of a contract for which the surety is bound, the rules as to the application of payments are not affected by the fact that the creditor is aware of the source of funds, unless the principal has contracted with the surety as to the application of such funds and this is known to the creditor”). See abo Warren Brothers Co. v. Sentry Insurance, supra 13 Mass.App. at 439, 433 N.E.2d at 1258; Templeton v. Sam Klain & Son, Inc., supra at 1202 (Ind.App.1980).


text:
    538 A.2d 567
    Jesse L. PLEET, Appellant, v. VALLEY GREENE ASSOCIATES, and National Properties, Inc., and Hayes Construction, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1988.
    Filed March 1, 1988.

      Alan B. Ziegler, Reading, for appellant.
    Thomas M. Golden, Wyomissing, for Hayes, appellee.
    John D. Snyder, III, W. Chester, for Valley, appellee.
    Before CIRILLO, President Judge, and McEWEN and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an Order sustaining appellees’ preliminary objections in the nature of a demurrer, and dismissing appellant’s complaint. We affirm.

On June 11, 1986,- appellant, an attorney, signed a purchase agreement for a unit in the Valley Greene Village townhouse development built by appellee Hayes Construction, Inc. in the Borough of Wyomissing Hills, and offered for sale by appellee Valley Greene Associates and National Properties, Inc. In August, appellant attempted without success to withdraw from the contract, and obtain the return of the deposit money which under the terms of the agreement was to remain with the seller as liquidated damages occasioned by breach. On September 10, 1986, appellant sought, inter alia, to recover his deposit as well as damages by instituting a class action suit on behalf of himself and all other purchasers of the units, alleging that appellees had not followed certain documentation procedures required for the sale of condominiums under the Pennsylvania Uniform Condominium Act, 68 Pa.C.S.A. § 3101 et seq. The trial court granted appellees’ preliminary objections in the nature of a demurrer, and dismissed appellant’s complaint. This appeal followed.

The crux of the matter before us is whether, under the provisions of the Condominium statute (the Act), the residential units of the Village are in fact condominiums.

Section 3103 of the Act defines condominium as follows: Condominium. Real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of those portions. Real estate is not a condominium unless the individual interests in the common elements are vested in the unit owners.

The agreement to which appellant was signatory declares the common areas of the development to have been conveyed to the Valley Greene Homeowner’s Association, a non-profit corporation organized under the laws of Pennsylvania, in which each of the unit owners was to hold a non-cancellable voting membership. Appellant argues that because the association is to be composed solely of unit owners, the requirements of the statute are met.

The trial court, in construing the definition of condominium, noted that this section of the Pennsylvania statute was adopted verbatim from the Uniform Condominiums Act, § 1-103, 7 U.L.A. 434 (1980), and relied upon the Comment to the definition for clarification. The Comment reads as follows:

Definition (7), “condominium,” makes clear that, unless ownership interest in the common elements is vested in the owners of the units, the project is not a condominium. Thus, for example, if the common elements were owned by an association in which each unit owner was a member, the project would not be a condominium.

Appellant contends that the application of this interpretive passage to the Pennsylvania statute is inappropriate because the Comments were not adopted by the legislature along with the statute. However, the introductory material to the Pennsylvania statute states that, “[s]ince 45 sections of the Uniform Condominium Act are incorporated without change, the comments of the National Conference of Commissioners on Uniform State Laws will generally be helpful in the application of this act.” This principle is consistent with 1 Pa.C.S.A. § 1939, which provides that

“The comments or report of the commission, committee, association or other entity which drafted a statute may be consulted in the construction or application of the original provisions of the statute if such comments or report were published or otherwise generally available prior to the consideration of the statute by the General Assembly ff

Aided by the Comments in interpreting the contract, we find as did the trial court, that the units of the development are not condominiums. The Condominium Act and its prescriptions as to documentation are therefore irrelevant to a valid sale of the units, and concomitantly, appellant’s complaint is devoid of legal substance.

Appellant also claims that there was error in the grant of appellees’ demurrer because certain facts relied upon by the trial judge in its Opinion, specifically the corporate status of the Homeowner’s Association and its ownership of the common areas of the development, were not properly before the court. However, these facts appear in the sales agreement which was appended to and made part of the Complaint; the court was thus entitled to rely on them in determining the sufficiency of the complaint. Jeffrey Structures v. Grimaldi, 186 Pa.Super. 437, 142 A.2d 378 (1958). Compare Martin v. Little, Brown and Company, 304 Pa.Super. 424, 450 A.2d 984 (1982).

Judgement affirmed.

      . We note with disapproval that appellant has violated the provisions of Pa. R.A.P. 124(a)(3), and (4), concerning spacing and pagination, and Rule 2186(a)(1), which requires that the reproduced record be filed simultaneously with the appellate brief. Although we decline, as appellee suggests, to dismiss this appeal on the basis of the Rule 2186 violation, "[w]e remind the parties ... that the rules are mandatory, not directory, and that in appropriate cases we will not hesitate to impose sanctions, including the draconian remedy of dismissing the appeal. See, e.g., Pa. R.A.P.2188.” Rappaport v. Stein, 351 Pa.Super. 370, 374 n. 1, 506 A.2d 393, 395 n. 1 (1986). See also, Shirk v. Caterbone, 201 Pa.Super. 544, 193 A.2d 664 (1963).

      . The trial court also relied upon the decision in County Greens Village One Owners Association, Inc. v. Meyers, 158 Ga.App. 609, 281 S.E.2d 346 (1981). There the Georgia Appeals Courts resolved a question similar to the one herein, albeit in a dissimilar factual setting, in a manner consistent with our conclusion.


text:
    538 A.2d 570
    COMMONWEALTH of Pennsylvania, Appellant, v. Brian Curtis FIORETTI, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Raymond Gerard JOLIN, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Karen K. POUST, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Jeff Alan BARTON, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Gregg Scott LULIS, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Timothy Paul COLLEY, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Donald E. GREINER, Jr., Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Charles Eugene YOUNG, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Delos E. WILLIAMS, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1986.
    Filed March 3, 1988.

      Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com., appellant.
    Stephen C. Sholder, Williamsport, for Fioretti, appellee (at 27HBG86).
    Raymond Gerard Jolin, pro se.
    William J. Miele, Williamsport, for Poust, appellee (at 92HGB86).
    Timothy Paul Colley, pro se.
    Donald E. Greiner, Jr., pro se.
    Charles Eugene Young, pro se.
    Robert M. Cravitz, Selinsgrove, for Lulis, appellee (at 108HBG86).
    James T. Rague III, Mercer, for Barton, appellee (at 109HBG86).
    John A. Felix, Williamsport, for Williams, appellee (at 164HBG86).
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

In these consolidated appeals, the Commonwealth challenges various orders of the Lycoming County Court of Common Pleas granting appellees’ motions to suppress all evidence obtained after their vehicles were stopped at various “sobriety checkpoint” roadblocks. The court of common pleas relied on this Court’s opinion in Commonwealth v. Tarbert, 348 Pa.Super. 306, 502 A.2d 221 (1985), and concluded that the sobriety checkpoints were per se unconstitutional. The court, therefore, suppressed all evidence obtained as a result of the stops made at the checkpoints. The roadblocks in question were conducted by the Williams-port Police Department on August 16, 1985, September 8, 1985, and September 14, 1985.

Prior to reviewing the suppression orders, we must determine whether they are appealable. In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), our Supreme Court held that the Commonwealth may appeal a suppression order as long as the Commonwealth certifies in good faith that the suppression order substantially handicaps or terminates the prosecution. Id., 506 Pa. at 545, 486 A.2d at 386. A prosecution is substantially handicapped whenever the “Commonwealth is denied the use of all their evidence,” id. The Commonwealth’s certification is “not contestable,” and “[i]t, in and of itself, precipitates and authorizes the appeal.” Id. See also Commonwealth v. Hunsberger, 358 Pa.Super. 207, 516 A.2d 1257 (1986) (“Dugger rule” applied). In the case before us, the Commonwealth has satisfied the certification requirement. We therefore find that the Commonwealth has an absolute right of appeal to this Court to challenge the validity of the nine suppression orders. We now turn to the merits of the Commonwealth’s claims.

Given the Pennsylvania Supreme Court’s recent decision in Commonwealth v. Tarbert, 517 Pa.-, 535 A.2d 1035 (1987), and in its companion case, Commonwealth v. Dannaker, 517 Pa.-, 535 A.2d 1035 (1987), and the fact that there are three different roadblocks involved in the consolidated cases now on appeal, we must answer the following questions: (1) Was the August 16, 1985 roadblock, wherein appellee Jeff A. Barton was stopped and subsequently charged with driving under the influence, unlawful for want of statutory authorization? (2) Was the September 8, 1985 sobriety checkpoint roadblock both authorized by the legislature and conducted in a constitutional manner? And (3) was the September 14, 1985 roadblock both authorized by the legislature and conducted in a constitutional manner?

With respect to question (1), we find that the August 16, 1985 roadblock was unlawful because it was not authorized by the legislature. We therefore affirm the court’s suppression order in the Barton case. With respect to question (2), we find that the September 8, 1985 roadblock was both conducted in a constitutional manner and was authorized by the legislature. With respect to question (3), we do not have testimony of record concerning the manner in which the police conducted the September 14, 1985 roadblock. We therefore remand the cases of appellees Jolin, Poust, Lulis, Young and Colley for a hearing to determine (a) whether the roadblock was conducted in a constitutional manner, pursuant to the guidelines set forth by our supreme court in Tarbert and (b) any additional issues that were raised by appellees in their motions to suppress.

In Tarbert, supra, our supreme court addressed the question of whether “police may set up roadblocks for the purpose of stopping and observing drivers to determine whether they are operating a motor vehicle under the influence of alcohol.” 517 Pa. at---, 535 A.2d at 1036. This Court had already addressed the issue in Commonwealth v. Tarbert, 348 Pa.Super. 306, 502 A.2d 221 (1985), and in Commonwealth v. Dannaker, 352 Pa.Super. 611, 505 A.2d 1030 (1985). In Tarbert, we concluded that such roadblocks violated Article I, Section 8 of the Pennsylvania Constitution, which prohibits unreasonable searches and seizures. In Dannaker, we found such roadblocks unlawful because there was a statute in effect at the time of the checkpoint in question that, by implication, prohibited such police conduct. See 75 Pa.C.S.A. § 6308(b). The supreme court in Tarbert affirmed our decisions in both cases but based its holding on the “statutory authorization” argument. The Court disagreed with our conclusion in Tarbert that such roadblocks violate the state constitution. The supreme court found systematic roadblocks conducted within certain prescribed parameters to be constitutional. However, the Court recognized that the “state legislature had statutorily restrained the power of the police to conduct roadblocks in connection with enforcing the motor vehicle laws.” Id. 517 Pa. at-, 535 A.2d at 1043. The Court concluded, therefore, that, pursuant to the 1983 version of section 6308(b) of the Motor Vehicle Code, the roadblocks in question were unlawful because the police had exceeded their power by setting up the roadblocks.

We turn now to question (1) to determine whether the August 16, 1985 roadblock was lawful. In the nine consolidated appeals now before us, only one, Commonwealth v. Barton, No. 85-11-035, Lycoming Cnty., is expressly governed by the supreme court’s decision in Tarbert. This is due to the fact that the 1983 version of 75 Pa.C.S.A. § 6308(b), which the supreme court found dispositive in its Tarbert decision, was in effect when Mr. Barton was stopped at a roadblock. The police had no “articulable and reasonable grounds to suspect a violation” of the Vehicle Code when they stopped appellee Barton. Therefore, the police exceeded their authority as delineated by the legislature in the statute. The statute was in effect until August 19, 1985, when an amendment to it became effective, which then allowed the police to conduct systematic roadblocks. We therefore affirm the court’s suppression order of February 3, 1986 in Commonwealth v. Barton, supra.

We turn to questions (2) and (3) to determine whether the roadblocks of September 8 and September 14, 1985 were both authorized by the legislature and conducted in a constitutional manner. The answers to these two questions are necessarily related because both roadblocks were conducted after the effective date of the 1985 amendment to § 6308(b), which granted police the authority to engage “in a systematic program of checking vehicles and drivers.”

We first examine the issue of whether the September 1985 roadblocks were conducted with legislative authorization. In Tarbert, the 1983 version of 75 Pa.C.S.A. § 6308(b) was in effect and did not permit police officers to stop cars without an “articulable and reasonable” suspicion that there was a violation of the Motor Vehicle Code. On that basis, the supreme court held that stops made pursuant to the roadblocks in question in Tarbert were unlawful. With respect to the eight appellees now before us who were stopped in September of 1985,3 ***** there had been an amendment to 75 Pa.C.S.A. § 6308(b) that was effective on August 19, 1985. The amended statute provided in pertinent part that “[w]henever a police officer is engaged in a systematic program of checking vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal____” 75 Pa.C.S.A. § 6308(b) (effective August 19, 1985). The amended statute authorized the police to conduct systematic stops without individual suspicion of illegal activity. See Tarbert, 517 Pa. at-, 535 A.2d at 1034-35. We find therefore that the police were authorized by the legislature to operate the sobriety checkpoint roadblocks of September 8th and 14th, 1985.

Having resolved that the police action in conducting the September 1985 roadblocks was authorized by statute, we must now determine whether the roadblocks were conducted in a constitutional manner. However, we are limited in our ability to answer the constitutional question with regard to the September 14th roadblock because there is no evidence of record concerning the manner in which the police conducted the roadblock. We therefore remand the cases of appellees Jolin, Poust, Lulis, Young and Colley, all of whom were stopped on September 14th, for a hearing on how the roadblock in question was conducted so the court of common pleas may make a determination on whether the roadblock was conducted in a constitutional manner. With respect to the September 8, 1985 roadblock, where appellees Fioretti, Williams and Greiner were stopped, we have a complete factual record detailing the procedure used by the police at the roadblock. But for this Court’s decision in Commonwealth v. Tarbert, 348 Pa.Super. 306, 502 A.2d 221 (1985), finding such roadblocks per se unconstitutional, the court of common pleas in Commonwealth v. Fioretti, wherein the testimony concerning the roadblock was heard, would have found the roadblock procedure used to have been constitutional. Based on the supreme court’s decision in Tarbert, we now conclude that the September 8, 1985 roadblock was conducted in a constitutional manner. Although the court based its decision in both Tarbert and Dannaker on a finding that the roadblocks exceeded the legislatively delineated police power under the 1983 version of 75 Pa.C.S.A. § 6308(b) (which had been amended to allow for systematic roadblocks by the time of the September 8th roadblock), the supreme court nonetheless addressed the constitutionality of such roadblocks. Because the Court’s conclusion that roadblocks conducted according to certain guidelines are constitutional was unnecessary to the actual decision in Tarbert, it is dicta. Nonetheless, we are persuaded to follow and adopt this conclusion of the supreme court because it represents the view of a majority of the Justices of the Pennsylvania Supreme Court.

In the supreme court’s plurality Opinion Announcing the Judgment of the Court, Chief Justice Nix recognized the Pennsylvania Constitution to be an alternative and independent source of rights from the Federal Constitution but, nonetheless, found the “large body of federal Fourth Amendment jurisprudence instructive.” 517 Pa. at-, 535 A.2d at 1038. The Chief Justice stated that it was no longer open to dispute that the “stopping of an automobile and the detention of its occupants is a seizure subject to constitutional restraints.” Id. (citing Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Common wealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975); Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973)). Although, drivers and their passengers do not forfeit all reasonable expectations of privacy and may not be subjected to “unfettered governmental intrusion,” 517 Pa. at-, 535 A.2d at 1038 (citing Deleware v. Prouse, supra), the expectation of privacy in an automobile is significantly different from the expectation of privacy in one’s home, 517 Pa. at -, 535 A.2d at 1038. Moreover, automobiles, unlike homes, are subjected to extensive governmental regulation and control. Id.

Article I, Section 8 of the Pennsylvania Constitution prohibits “unreasonable searches and seizures.” Chief Justice Nix noted in Tarbert that the United States Supreme Court, in construing the identical phrase, has “indicated that a finding of ‘reasonableness’ may, in limited circumstances, be predicated upon less than the traditional requirement of probable cause.” Id. (citing Delaware v. Prouse, supra). The Chief Justice also recognized that the permissibility of a certain law enforcement practice is judged by balancing its intrusion on an individual’s rights to be free from arbitrary invasions by government officials against its promotion of legitimate government interests. Id., 517 Pa. at -, 535 A.2d at 1039 (quoting Delaware v. Prouse, supra). The Chief Justice added that the Pennsylvania Supreme Court has expressly approved such a balancing-of-interests approach in some situations. See Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987) (canine-sniff search).

In Tarbert, the supreme court of our Commonwealth addressed for the first time the issue of the constitutionality of police roadblocks. Our supreme court looked for guidance to United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), wherein the United States Supreme Court upheld the constitutionality of routine stopping of vehicles and questioning of their occupants at a permanent checkpoint established as part of a program to detect and apprehend illegal aliens. In Mar tinez-Fuerte, the Supreme Court applied the balancing-of-interests test and rejected the contention that there must be some reasonable suspicion that a vehicle contained illegal aliens before it could be stopped. The Court stressed the substantial public interest in detecting illegal aliens and believed the detection of illegal activity would be greatly hampered by the imposition of a “reasonable suspicion” standard. 428 U.S. at 556-57, 96 S.Ct. at 3082-88. The Court also emphasized that the brief stop and questioning at the checkpoint were, objectively, minimally intrusive. Id. at 558, 96 S.Ct. at 3083.

In Tarbert, the Pennsylvania Supreme Court, in its plurality Opinion Announcing the Judgment of the Court, compared systematic police roadblocks for the detection of drunk drivers to the checkpoint at issue in Martinez-Fuerte and concluded that they shared many features. See 517 Pa. at---, 535 A.2d at 1041 (quoting Note, Curbing the Drunk Driver Under the Fourth Amendment: The Constitutionality of Roadblock Seizures, 71 Geo.L.J. 1457, 1460-63 (1983) (quoted in 4 W. LaFave, Search and Seizure § 10.8(d), at 69-70 (2d ed. 1987)). The Tarbert plurality balanced the conflicting interests inherent in routine sobriety checkpoint roadblocks. On the one hand, the Court recognized the compelling interest of the state in protecting its citizens against drunk drivers. Id., 517 Pa. at-, 535 A.2d at 1042. It concluded that the government interest involved in the Martinez-Fuerte case, that of preventing illegal immigration, with its primarily economic impact, was not nearly as strong as the state interest in curbing drunk driving, with its potentially fatal consequences. Id. The Court reasoned that the public interest in preventing anyone under the influence of alcohol from operating a vehicle could not be met through traditional law enforcement procedures such as patrol and stops based on a Terry standard because the police lack the personnel to conduct full scale patrols for drunk drivers. Further, the chances of detecting a drunk driver are lower when police patrol randomly as compared to when police use a sobriety checkpoint roadblock. Id., 517 Pa. at---, 535 A.2d at 1042 (quoting 4 W. LaFave, supra, § 10.8(d) at 72-73, and Commonwealth v. Leninsky, 360 Pa.Super. 49, 60-61, 519 A.2d 984, 990-91 (1986)).

The plurality concluded that, as to the privacy interests of the individual, the “intrusiveness, both objective and subjective, of a drunk-driving roadblock can be reduced to a constitutionally acceptable degree by the manner in which it is managed and conducted.” 517 Pa. at-, 535 A.2d at 1043. The Court therefore set out the following guidelines to ensure the constitutionality of a sobriety checkpoint roadblock:

[T]he conduct of the roadblock itself can be such that it requires only a momentary stop to allow the police to make a brief but trained observation of a vehicle’s driver, without entailing any physical search of the vehicle or its occupants. To avoid unnecessary surprise to motorists, the existence of a roadblock can be so conducted as to be ascertainable from a reasonable distance or otherwise made knowable in advance. The possibility of arbitrary roadblocks can be significantly curtailed by the institution of certain safeguards. First, the very decision to hold a drunk-driver roadblock, as well as the decision as to its time and place, should be matters reserved for prior administrative approval, thus removing the determination of those matters from the discretion of police officers in the field. In this connection it is essential that the route selected for the roadblock be one which, based on local experience, is likely to be travelled by intoxicated drivers. The time of the roadblock should be governed by the same consideration. Additionally, the question of which vehicles to stop at the roadblock should not be left to the unfettered discretion of police officers at the scene, but instead should be in accordance with objective standards prefixed by administrative decision.

517 Pa. at —--, 535 A.2d at 1043. The plurality-concluded that in its view “a drunk-driver roadblock conducted substantially in compliance with the above guidelines would reduce the intrusiveness to a degree which, when balanced against the compelling public interest in apprehending such drivers, would not violate Article I, section 8 of the Pennsylvania Constitution.” Id., 517 Pa. at-, 535 A.2d at 1043.

With those guidelines in mind, we now focus our attention on the particulars of the roadblock conducted on September 8, 1985. According to the testimony of Williamsport police officer Sergeant Mayers, who drafted the procedure used at the roadblock, the plans and procedure were authorized by the chief of police of Williamsport. (N.T., Suppression Hearing, Commonwealth v. Fioretti, December 12, 1985, at 6-7). The specific roadblock conducted on September 8, 1985, also was approved by the chief of police. Id. at 7. The time of the roadblock was established based on statistical information indicating when the highest number of drunk-driviiig accidents and arrests occurred. Id. at 36. The September 8th roadblock was conducted between 12:40 a.m. and 3:20 a.m. Id. at 36. The location of the roadblock was chosen based on an evaluation of drunk-driving arrests in the fifteen districts comprising the Williamsport Police Department’s territory. Id. at 7, 36. The department chose to set up a roadblock somewhere within District 13, which had a disparately high number of drunk-driving arrests between February 1, 1984 and August 8, 1985. Id. at 8, 35. The actual location within the district was chosen for its safety features: a straight roadway, no cross streets, a wide berm, two lanes, good lighting, and a concrete barrier dividing the two flows of traffic travelling in opposite directions. Id. at 8, 12-14. There were signs warning motorists of the “sobriety checkpoint” ahead. Id. at 11. Moreover, a local newspaper had published an article a few days prior to the weekend notifying the public that the police would be conducting a sobriety checkpoint that weekend at an unspecified location and time. Id. at 20. The police were conducting themselves in accordance with a written procedure approved by the chief of police. Id. at 16. All checkpoint officers had a copy of the procedure. Id. All cars were stopped that were heading east, thus removing discretion from the checkpoint officers concerning whom to stop. Id. at 18, 23. The only discretion exercised by the police would be in deciding whether to discontinue the checkpoint if the traffic backed up. Id. at 15. The average wait in line before coming into contact with a checkpoint officer was about 1 and lk to 2 minutes; and, if the checkpoint officer detected no signs of alcohol consumption, the average contact with the officer was 15 to 30 seconds. Id. at 23. The officers were instructed to be unobtrusive, greet the occupants of the vehicle, tell them the purpose of the stop and, if the officers observed no signs of driving under the influence, to allow the vehicle to proceed. Id. at 17. If the officer suspected the driver was under the influence of alcohol, the officer would question the driver further or perhaps administer a horizontal-gazenystagmus test to the driver while the driver remained seated in the car. Id. at 28. Only drivers who exhibited signs of intoxication after further questioning were asked to pull over to the berm and were given a preliminary breath test. Id. at 25. After taking a breath test, the drivers were asked to perform certain field sobriety tests. Id. at 26. If drivers failed both the breath and field sobriety tests, they were taken to the hospital for blood alcohol tests. Id. at 30.

Applying the guidelines set forth in Tarbert to the facts at bar, we find that the September 8, 1985 roadblock was conducted in a constitutional manner. It involved only a momentary stop; drivers were adequately forewarned of its existence; the decision to hold a roadblock and the procedure used was approved by the chief of police of Williams-port; the location of the roadblock was chosen based on a statistical analysis of which district had the highest number of driving under the influence arrests or accidents and the time was determined on a similar statistical basis; and all cars were stopped, thus removing discretion from the checkpoint officers concerning whom they would stop.

Therefore:

(1) We affirm the suppression order in the appeal of Barton pursuant to the supreme court’s opinion in Tarbert and its interpretation of the 1983 version of 75 Pa.C.S.A. § 6308(b).

(2) To the extent that we find that the September 8, 1985 roadblock was both constitutional and lawful, we reverse the suppression orders involved in the Fioretti and Williams appeals. However, appellees Fioretti and Williams have both raised issues in their motions to suppress in addition to the constitutionality and legality of the roadblock. Because no hearing has been held on these additional issues, we remand these two cases for a hearing on those additional issues raised in the motions to suppress. With respect to the suppression order in Commonwealth v. Greiner, we reverse. In both his original motion and in his amended motion to suppress, appellee Greiner raises no issues beyond the legality and constitutionality of the September 8th roadblock. Because we have already determined all issues raised by Mr. Greiner in his motion, we see no reason to remand the case for further hearing.

(3) With respect to the appeals by appellees Jolin, Poust, Lulis, Young and Colley, we remand for a hearing to determine (a) the constitutionality of the September 14,1985 roadblock pursuant to the guidelines established by the supreme court in Tarbert and (b) the merit of any other issues raised in the appellees’ motions to suppress.

Affirmed at No. 109 Hbg. 1986 (Commonwealth v. Barton ).

Reversed at No. 141 Hbg. 1986 (Commonwealth v. Greiner).

Remanded for proceedings consistent with this opinion at

No. 027 Hbg. 1986 (Commonwealth v. Fioretti);

No. 063 Hbg. 1986 (Commonwealth v. Jolin)',

No. 092 Hbg. 1986 (Commonwealth v. Poust);

No. 108 Hbg. 1986 (Commonwealth v. Lulis);

No. 140 Hbg. 1986 (Commonwealth v. Colley)',

No. 142 Hbg. 1986 (Commonwealth v. Young)-, and

No. 164 Hbg. 1986 (Commonwealth v. Williams).

Jurisdiction is relinquished.

      . Commonwealth v. Tarbert, 348 Pa.Super. 306, 502 A.2d 221 (1985), aff’d on other grounds, 517 Pa.-, 535 A.2d 1035 (1987).

      . Appellee Jeff Alan Barton was stopped at a sobriety checkpoint roadblock on August 16, 1985 and was charged thereafter with driving under the influence of alcohol.

      . Appellees Brian Curtis Fioretti, Delos E. Williams, and Donald E. Greiner were stopped at a sobriety checkpoint on September 8, 1985 and were thereafter charged with driving under the influence of alcohol.

      . Arrested and charged with driving under the influence of alcohol as a result of being stopped at a sobriety checkpoint roadblock on September 14, 1985, were appellees Raymond Gerard Jolin, Karen K. Poust, Gregg Scott Lulis, Charles Eugene Young and Timothy Paul Colley.

      . For ease of reference, we will refer to the supreme court’s single opinion addressing the appeals in both the Tarbert and Dannaker cases as the Tarbert decision. The Tarbert appeal raised the issue of whether systematic roadblocks are “violative of this state’s constitutional prohibition against unreasonable searches and seizures.” Tarbert, 517 Pa. at-, 535 A.2d at 1037. The Dannaker appeal raised the issue of whether such roadblocks "are unlawful for want of specific statutory authorization.” Id.

      . We have testimony concerning the particulars of only the September 8, 1985 roadblock. That testimony was offered in the suppression hearing in the case of Commonwealth v. Fioretti, No. 85-11-083, Criminal Division, Court of Common Pleas, Lycoming County (1985). In Fioretti, the court of common pleas, finding dispositive this Court’s opinion in Commonwealth v. Tarbert, 348 Pa.Super. 306, 502 A.2d 221 (1985), held that sobriety checkpoint roadblocks were per se unconstitutional. Because the other eight cases that are now on appeal with Fioretti involved the same issue as that involved in Fioretti, no hearings were held in the other cases to determine the particulars of the roadblocks in question. Instead, the parties stipulated that there was no probable cause to arrest or reasonable suspicion to stop those individuals at the checkpoints. The parties in all eight cases stipulated that if checkpoints were held constitutional under certain circumstances, then the matters would be remanded to the court of common pleas for a determination of the constitutionality of the checkpoint procedure used and any additional issues raised in the motions to suppress.

      . The statute in effect when the police conducted the roadblocks in question in Commonwealth v. Tarbert, 517 Pa. -, 535 A.2d 1035 (1987) and its companion case, Commonwealth v. Dannaker, 517 Pa. -, 535 A.2d 1035 (1987), provided:
      (b) Authority of police officer. — Whenever a police officer has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or- signal, for the purpose of inspecting the vehicle as to its equipment and operation, or vehicle identification number or engine number, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

        75 Pa.C.S.A. § 6308(b), as amended 1983, July 22, P.L. 122, No. 32, § 4, imd. effective (emphasis added).
      The statute was amended in 1985 to read:
      (b) Authority of police officer. — Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.
      75 Pa.C.S.A. § 6308(b), as amended 1985, June 19, P.L. 49, No. 20, § 10, effective in 60 days (emphasis added).

      . See, supra, footnote 7, for the text of the 1985 statute after the amendment of June 19, 1985, which was effective August 19, 1985.

      . All appellees, with the exception of Jeff Alan Barton, were stopped at the September 1985 roadblocks. See, supra, footnotes 3 and 4.

      . For the full text of the statute as amended in 1985, see, supra, footnote 7.

      . See, supra, footnote 6, for an explanation of why the record is incomplete in this respect.

      . The supreme court’s decision in Tarbert was not unanimous. One Justice joined Chief Justice Nix’s plurality Opinion Announcing the Judgment of the Court. The Chief Justice concluded that, within prescribed guidelines, systematic roadblocks do not violate a motorist’s right to be free from unreasonable searches and seizures pursuant to Article I, Section 8 of the Pennsylvania Constitution. However, the plurality actually based its decision on the fact that when the police conducted the roadblocks in question, they exceeded their authority as delineated by the legislature. Justice Zappala filed a concurring opinion. He found the roadblocks unconstitutional because the stops were conducted without probable cause. Justice Papadakos concurred in the result based on the plurality’s analysis of the 1983 version of the statute. He declined to join Chief Justice Nix's opinion because he believed that the Court should and could have avoided the constitutional analysis. He did state, however, that he agreed with the plurality’s conclusion that there is "constitutional justification for non-discriminatory, systematic roadblocks by police under well-defined parameters.” 517 Pa. at -, 535 A.2d at 1047 (Concurring Opinion, Papadakos, J.). Justice Flaherty concurred in the result but, unlike Justice Papadakos, offered no explanation for doing so. Justice Larsen dissented. He disagreed with the plurality’s holding that the roadblock was unlawful. He found that the general statutes in effect at the time of the roadblocks in Tarbert and Dannaker, which established and defined the parameters of the police power, authorized such stops. By implication, Justice Larsen finds systematic roadblocks constitutional. Justice Larsen states, "I would hold that those charged with the responsibility of enforcing the Motor Vehicle Code may utilize any reasonable procedure upon our highways to achieve that goal so long as the procedure is not prohibited by the constitution, statute or precedent." 517 Pa. at-, 535 A.2d at 1048 (Justice Larsen, dissenting) (emphasis in the original). Because he finds the roadblocks involved in both cases to be acceptable and would reverse the order of this Court in Tarbert, wherein we held the roadblocks to be unconstitutional, we can conclude, by implication, that Justice Larsen agrees with the plurality’s finding concerning the constitutionality of systematic roadblocks. Former Justice Hutchinson did not participate in the Tarbert and Dannaker decisions. Of the six Justices who participated in the cases, four of them expressed the view that systematic roadblocks are constitutional.

      . Stops based on a Terry standard are based on an officer's reasonable suspicion that illegal activity is afoot. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . The horizontal-gaze-nystagmus test involves holding an object such as a finger or pen in front of a subject’s face and having the subject hold his or her head still while following the object from side to side with the eyes only. The procedure tests the subject’s ability to focus.