author: JOHNSON, Judge:

text:
    585 A.2d 1057
    COMMONWEALTH of Pennsylvania v. Melvin MOSLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 30, 1990.
    Filed Jan. 25, 1991.

      W. Russell Carmichael, Media, for appellant.
    Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com., appellee.
    Before CIRILLO, President Judge, and ROWLEY, WIEAND, OLSZEWSKI, MONTEMURO, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   JOHNSON, Judge:

Appellant Melvin Mosley appeals following his conviction for Aggravated Assault, Recklessly Endangering Another Person and Possessing Instruments of Crime. We are asked to decide whether the trial court erred when it allowed the Commonwealth to amend the information under Pa.R.Crim.P. 229 to add the names of co-defendant rival gang members as victims. Before this panel also are the companion cases of co-defendants Morris Edmonds, at 1422 & 1423 Philadelphia 1989, Shawn Wootson, at 1351 & 1352 Philadelphia 1989, and Walter Richardson, Jr., at 1534 Philadelphia 1990, which each raise the amendment issue. We conclude that the trial court properly allowed the amendments.

The charges arose out of a gang fight on the evening of August 16, 1988 in Chester, Pennsylvania that degenerated into a gun battle. As described by the trial court:

Following a basketball game at Memorial Park in Chester, [Pennsylvania] where young men from the East Side of Chester competed against young men from the West Side of Chester, the young men decided to hold a fight at “A Field,” an athletic field in Chester City. What was apparently meant to be a contest consisting of one-on-one fist fights turned into a gun battle when Shawn Wootson from the West Side pulled out a gun and began firing. Morris Edmonds, Melvin Mosley and Walter Richardson from the East Side also produced guns as did Nathaniel Burton from the West Side. An onlooker, Carla Carrington, was struck in the head by a bullet and died as she attempted to leave the scene.

Opinion, the Honorable Domenic D. Jerome, May 17, 1989 at 3-4.

The four co-defendants involved in these companion appeals and additional original defendants were charged by informations on August 31, 1988 with murder of the first and third degrees, voluntary and involuntary manslaughter, aggravated assault, recklessly endangering another person, conspiracy and several charges involving firearms. Carla Carrington was the only named victim. The aggravated assault count was inadvertently not held over following the preliminary hearing. N.T., October 31, 1988 at 14-15. On October 5, 1988 the Commonwealth filed a motion for special leave to amend the information to reinstate the aggravated assault charge and to name the co-defendants as victims additional to Carla Carrington. The motion was before the court on October 17th and October 28th, when all counsel were present for pre-trial matters. The motion was granted on October 31, 1988, prior to the hearing the same day on an unrelated suppression motion and the trial. All co-defendant counsel were present throughout the proceedings.

Following a bench trial, Mosley and his co-defendants were found guilty of aggravated assault, possession of an instrument of crime and recklessly endangering another person. Mosley was sentenced to nine to eighteen years’ imprisonment. His motion to modify sentence resulted in a reduction to eight to sixteen years’ imprisonment. This appeal follows.

On appeal Mosley argues that the trial court erred in allowing the amendment of the original information, which named only Carla Carrington as a victim, to add additional victims, namely the opposing gang members who were the intended target of the bullets, one of which killed Carrington. Mosley relies exclusively on the recent Pennsylvania Supreme Court case of Commonwealth v. DeSumma, 522 Pa. 36, 559 A.2d 521 (1989). We granted en banc review to determine the applicability of DeSumma to this case and also the applicability of In the Interest of Becker, 370 Pa.Super. 487, 536 A.2d 1370 (1988), in which the fact pattern is similar to that in DeSumma on the point in issue. Both in DeSumma and in Becker the courts found prejudice in amending informations to add victims. Based upon the principles enunciated in DeSumma and Becker, we conclude that the amendment for the purpose of adding the names of the codefendants as victims in the present case worked no prejudice. We accordingly affirm.

Amendment of criminal informations is governed by Pa. R.Crim.P. 229, which provides:

The court may allow an information to be amended when there is a defect in form, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

The purpose of Rule 229 is to insure that a defendant is notified of the charges against him, and to avoid prejudice by prohibiting last minute additions of which the defendant is uninformed. Commonwealth v. Stanley, 265 Pa.Super. 194, 212, 401 A.2d 1166, 1175 (1979); aff'd 498 Pa. 326, 446 A.2d 583 (1982); Commonwealth v. Shirey, 333 Pa.Super. 85, 113, 481 A.2d 1314, 1329 (1984). The safeguards of the rule are intended to give the defendant adequate preparation time for trial without risk of last-minute additions to the charges which materially alter his defense. Commonwealth v. Johnson, 336 Pa.Super. 1, 13, 485 A.2d 397, 403 (1984).

In assessing the propriety of permitting a Rule 229 amendment:

(T)he courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.

Commonwealth v. Stanley, 265 Pa.Super. at 212-213, 401 A.2d at 1175, cited in Commonwealth v. Tillia, 359 Pa.Super. 302, 307, 518 A.2d 1246, 1248-1249 (1986) (emphasis supplied).

The caselaw sets forth a broader test for propriety of amendments than the plain language of the rule suggests, Cf. Tillia, 359 Pa.Super. at 307-308, 518 A.2d at 1249; an amendment to an information must not deny a defendant due process, the relevant component of which is adequate notice:

Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must “set forth the alleged misconduct with particularity.” ... Due process of law requires notice of the sort we have described—that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding.

In the Interest of Becker, 370 Pa.Super. at 493, 536 A.2d at 1374, citing In re Gault, 387 U.S. 1, 33-34, 87 S.Ct. 1428, 1446-1447, 18 L.Ed.2d 527, 549-550 (1967). Therefore, our inquiry must focus on whether the defendants in the present case were denied due process when the Commonwealth added the codefendants’ names to the information as additional victims.

In DeSumma, the defendant was charged with displaying a handgun and menacing the driver of a vehicle while both were proceeding along a highway in separate cars. DeSumma was originally charged with simple assault and reckless endangerment solely against the other driver, O’Hara, even though there were four passengers in O’Hara’s car. At the preliminary hearing, only O’Hara and the arresting officer testified. However, before DeSumma’s trial, O’Hara disappeared. Therefore, at trial, the Commonwealth requested and the court allowed amendment of the existing counts to add the four passengers as additional victims to the same two counts involving the original victim. We affirmed the conviction, with the Honorable Donald E. Wieand dissenting. Judge Wieand would have held that the amendment was prejudicial. Commonwealth v. DeSumma, 367 Pa.Super. 634, 533 A.2d 453 (1987). On appeal, The Supreme Court reversed, adopting Judge Wieand’s rationale that DeSumma:

arrived for trial anticipating that he would be required to defend against a charge that he had pointed a loaded gun at O’Hara with the intent of putting O’Hara in fear of imminent bodily injury. At trial, however, he found that he was required to defend against an accusation that he had intended to put in fear of bodily injury the passengers in the other vehicle with whom he had not exchanged words and with whom he had no quarrel. Until the time when trial started, there had not been either accusation or testimony that appellant had intended to menace anyone but the driver with whom he had quarreled.

Commonwealth v. DeSumma, 522 Pa. at 39, 559 A.2d at 522, quoting Commonwealth v. DeSumma, 367 Pa.Super. at 640-641, 533 A.2d at 456 (Wieand, J. dissenting). The Supreme Court held that this, actually a fresh accusation added at the eleventh hour, was clearly prejudicial because it deprived DeSumma of opportunity to prepare an adequate defense.

In contrast, in the present case, the precise facts upon which the amended informations are based were known from the time the charges were brought and were set forth at the preliminary hearing of September 14, 1988, at which all defendants were represented by counsel. Extensive testimony of five eyewitnesses established that the defendants, Mosley, Edmonds and Richardson from the East Side, and Wootson from the West Side, fired guns at each other. . These facts were necessary to establish any of the charges, ranging from murder to recklessly endangering another person, including aggravated assault. The Commonwealth could not prove that the defendants committed aggravated assault upon Carrington, the deceased, without proving aggravated assault against the rival gang members. The rival gang members’ involvement was a material and necessary component of the Commonwealth’s case regardless of whether their names appeared on the original information.

The amendments merely added the names of those with whom the defendants actually had a quarrel, the quarrel that claimed the life of the unintended victim, Carla Carrington. Adding the intended victims’ names to the informations served only to permit the Commonwealth to proceed on the facts as known even before the preliminary hearing, and as testified to by the various witnesses at that hearing in the presence of the defendants and their counsel.

Unlike DeSumma, the amendment in this case served to bring the primary parties directly into the proceeding. As the trial judge correctly observed, the nature of the amendment worked no changes in the factual scenario nor in the description of the charges. Neither did it work a change in the defense, as did the amendment in DeSumma, in which two defenses, justification or consent, might have been raised with respect to the intended victim, O’Hara, but not with respect to the added remaining passengers. DeSumma, 522 Pa. at 41, 559 A.2d at 523.

In In the Interest of Becker, 370 Pa.Super. 487, 536 A.2d 1370 (1988), Becker and another juvenile, R.H., were driving separate vehicles to vocational school. Both vehicles traveled at 65-70 m.p.h., passing other vehicles on a road that was posted at 45 m.p.h. As the two vehicles approached an intersection marked by a red traffic signal, R.H.’s vehicle moved into the left lane, entered the intersection in violation of the traffic signal, and collided with a vehicle on the cross-street. The driver of the crossing vehicle was killed and her two children, passengers, were injured. Becker stopped at the red light and was not involved in the accident. In the juvenile petition Becker was charged with homicide by vehicle and recklessly endangering the deceased victim. At the close of the Commonwealth’s evidence that Becker was involved in the incident underlying the charge of homicide by vehicle, Becker demurred, but the court denied the demurrer. Instead, the court allowed the Commonwealth to amend the juvenile petition to allege that Becker had recklessly endangered other motorists on the road. The court found that Becker committed the delinquent act of reckless endangering other motorists on the road.

Judge Wieand authored the Becker decision reversing the adjudication, applying a similar rationale as that in DeSumma. We held that the Becker amendment was impermissible under Rule 229 because it denied Becker due process:

This amendment changed not only the identity of the person allegedly endangered but also the actus reus, i.e., the physical acts which placed other persons in danger. After the Commonwealth had amended the petition, appellant not only had to defend his conduct in the immediate vicinity of the intersection, but he was made accountable for his conduct during the previous mile to mile and a half on York Road.

Becker, 370 Pa.Super. at 495, 536 A.2d at 1374-1375.

In Becker, unlike in the present case, the amendment constituted a fundamental broadening of the charge; it added conduct occurring in a different place and time from the conduct underlying the original charge. Under the amendments in the present case, the defendants had to defend the identical conduct in place and time, shooting guns at opposing gang members. The actus reus, the act constituting the physical menace, did not change, the brandishing and firing of firearms. The amendments added nothing new to which the defendants had to respond.

When we compare the timing of the request and the form in which the request was submitted, we find clear differences between DeSumma and Becker, and the case now before us.

In both DeSumma and Becker, the initial request for the attempted amendment to the criminal information occurred either immediately before, or during, the trial proceedings. In DeSumma, the Commonwealth sought leave to amend the information immediately prior to the commencement of trial. The trial court, over defense objection, allowed the amendment. This permitted Judge Wieand to find, in dissent on review, that “the charges against appellant were changed substantially when he appeared for trial.” 367 Pa.Super. at 640, 533 A.2d at 456. Judge Wieand went on to conclude, “The last-minute amendment of the information under these circumstances was prejudicial.” Id., 367 Pa.Superior Ct. at 641, 533 A.2d at 456.

Similarly, the Becker case involved an amendment to a juvenile petition for delinquency, where the attempted amendment was not even sought until after the Commonwealth had presented its evidence on alleged delinquency. After the Commonwealth had rested, counsel for the minor demurred to the evidence. The demurrer was denied. It was only then that the Commonwealth moved to amend the petition and, over objection, the juvenile hearing court allowed the amendment. 370 Pa.Super. at 493, 536 A.2d at 1373.

The record in the case now before us establishes that this case is factually distinguishable. The criminal complaints against Mosley and his co-defendants were filed August 31, 1988, charging them with murder, aggravated assault and related offenses. At the conclusion of a preliminary hearing held September 14, 1988, each defendant was held for court on the charges of homicide, aggravated assault, recklessly endangering, possessing an instrument of crime, and criminal conspiracy. All counsel agreed that a criminal transcript of the preliminary hearing need not be filed and that each defendant would be immediately arraigned. Three weeks later, on October 5, 1988, the Commonwealth filed its written Motion for Special Leave seeking the right to file Special Leave Informations against the defendants charging aggravated assault against the defendants themselves. When the written motion was filed and served on the defendants, the trial date had not been scheduled.

The trial court did not act on the motion immediately, other than to issue a rule returnable October 17, 1988 on which date arguments would be received on whether the motion should be granted. It is worth noting that defendant Mosley’s Omnibus Pre-Trial Motions pursuant to Pa.R. Crim.P. 306, were not filed until two days after the filing of the Commonwealth’s Motion for Special Leave. Mosley’s Omnibus Pre-Trial Motions were filed October 7, 1988, with an identical return date of October 17,1988 being set by the court.

From the certified docket entries, we further learn that a pre-trial conference was held on October 17, 1988. On that date, the trial court fixed October 31, 1988 as the time for receiving evidence on any pre-trial motions and for the commencement of trial. On October 31, 1988, prior to the hearing on the various suppression motions, the Honorable Domenic D. Jerome granted to the Commonwealth leave to amend the aggravated assault charges against each of the defendants. Notes of Testimony, October 31, 1988, pages 10-16. [Repr.Rec., Commonwealth v. Richardson, No. 1534 Philadelphia, 1990, pages A38-A34.]

Judge Jerome had presided at the preliminary hearing. N.T., supra, at 11. He presided at the hearing on the motion for leave to amend. He continued to preside throughout the three-day bench trial, after each of the defendants executed their jury waivers. In response to defense counsel’s argument at the pre-trial motions hearing that the introduction of the defendants as additional victims would “change the theory of the Commonwealth’s case,” Judge Jerome stated:

THE COURT: I don’t think the theory is changed, Mr. Marcone. [Counsel for Nathaniel Burton, a co-defendant]. As I indicated at our last meeting, I think the evidence disclosed what it disclosed at the preliminary hearing. And it was clear to me, having conducted the preliminary hearing that such—granting such special leave for such informations would be based on the evidence presented on that occasion. So I really don’t see where you’re surprised or there’s any new evidence in any way.

N.T., October 31, 1988, page 11. The only objection advanced by counsel for Mosley on the question of information amendment was as follows:

MR. CARMICHAEL: Briefly, Your Honor, Russell Carmichael for Melvin Mosley. I would object on the grounds that even though the evidence as presented at the preliminary hearing would seem to support the issuance of such an information as is before the Court, that defense counsel was not afforded an opportunity to cross examine with regard to those charges specifically. And in addition, I would join in Mr. Marcone’s objection for the reasons he has stated.

Id., page 13. None of the counsel requested or moved for a continuance following Judge Jerome’s decision to permit the amendment. Judge Jerome was quite firm that a prima facie case for aggravated assault had been established at the September 14, 1988 preliminary hearing but that, through inadvertence, the court had not carried forward that count. The court viewed it as a bookkeeping matter. Id., pages 14-15.

The expansion of the existing aggravated assault charges resulted in the defendants being then charged with aggravated assault upon one another in addition to aggravated assault upon Carla Carrington, the innocent bystander killed through the acts of the defendants. This amendment does not involve either an additional or a different offense. Moreover, no postponement of trial or other relief was requested by any of the defendants following the trial court’s decision to grant leave. Our examination of the entire trial transcript does not disclose any prejudice visited upon any of the defendants, including Mosley, arising from the amendment.

We expressly reject Mosley’s characterization of the grant of relief to the Commonwealth as being “eleventh hour.” Re-Submitted Brief of Appellant, pages 3, 9. As early as the date on which the gang fight occurred, August 16, 1988, Mosley knew that random gunfire, intended to injure or kill rival gang members, had mortally wounded a seventeen year old girl. He could not have attended the preliminary hearing on September 14, 1988 without being fully aware that the intended victims of the gun fight were the rival members of the East Side and West Side gangs. Both the Motion for Special Leave and the Rule granted thereon were served upon and known to Mosley and his counsel more than three weeks before any scheduled trial date. Counsel for Mosley participated in a pre-trial conference on October 17, 1988 as well as another conference on Friday, October 28, 1988. At both meetings the amendment was discussed between the court and counsel. N.T., October 31, 1988, pages 10-11. The trial court apprised counsel of its position regarding the amendment no later than Friday, October 28, 1988. Id., pages 10-11.

Surprise is not a factor to be weighed on this appeal, nor is inadequate notice. Even without seeking to distinguish DeSumma and Becker, we would find that the principle contention on this appeal, the alleged violation of Rule 229 is totally without merit.

We find the present case to be more like Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1985). In Johnson, the appellant was convicted of second degree (felony) murder, criminal conspiracy and robbery following his co-conspirator’s shooting of one of several robbery victims. Prior to trial, one of the robbery victims, previously unnamed, was added to the robbery charge and to a count naming individuals whom the appellant threatened with a shotgun. We concluded that this addition of intended victims was proper and that the defendant was not prejudiced; his defense was unaltered and he was fully informed prior to the amendments of the criminal episode underlying both the original and amended informations. Johnson, 336 Pa. Super, at 13, 485 A.2d at 403.

The amendment in the present case is of this nature; it simply added names of intended victims. Mosley was fully informed of the criminal episode underlying the participation of the additional defendants, and his defense was unaltered by the amendment. His defense was that he did not fire a gun, but even if he did, then it was not at anyone, and even if it was at someone, it was in self-defense. This defense applies regardless of whether the victim of the alleged aggravated assault was the unintended deceased or whether the victims included opposing gang members.

In both DeSumma and Becker, the Commonwealth was erroneously granted leave by the court to change the essential nature of the charges against the defendant due to a failure in the Commonwealth’s case. In DeSumma, the intended victim disappeared, and in Becker the evidence established that Becker was not involved in the incident underlying the original charges. To amend an information to fit the Commonwealth’s proof is a clear due process violation. In the present case, the information was amended only to add names of those with whom the defendants actually had a quarrel, to bring the primary parties directly into the proceeding. These were the facts as known even before the preliminary hearing, and, most important, these were the facts which the Commonwealth would have had to establish in order to prove any of the charges with regard to the innocent bystander.

Were we to consider the impact of Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984), as did the three-justice majority in Commonwealth v. DeSumma, the result would not change. The action of Judge Jerome in granting leave to the Commonwealth to amend its information in this case only resulted in the names of the defendants being added to the existing count in the existing information. No additional counts were brought against Mosley, or any of the other defendants. Mosley remained charged with one count of aggravated assault throughout the entire judicial process. He was sentenced on the single count of aggravated assault. The holding in Frisbie might have permitted the Commonwealth to add additional counts in the case now before us, since gunshots directed against each separate gang member would, under Frisbie, support a separate count and offense. That simply did not happen here. We do not view this as the charging of “an additional or different offense” so as to run afoul of Rule 229.

Moreover, the DeSumma majority coupled its consideration of the holding in Frisbie with the clear need to establish prejudice. 522 Pa. at 41, 559 A.2d at 523. We believe that the correct focus, in applying Rule 229 to attempted amendments of criminal informations, must remain whether the amendment works an irreparable prejudice by forcing the accused to prepare or present a defense without adequate notice or sufficient time. Cf Dissenting Opinion, Papadakos, J., Commonwealth v. DeSumma, 522 Pa. at 41-43, 559 A.2d at 523-524.

We conclude that the written motion seeking amendment which was provided to the defendants, or their counsel, more than three weeks before trial, when coupled with the two pre-trial conferences held October 17, 1988 and October 28, 1988, afforded ample notice to each of the defendants of the charges against which they were called upon to defend. We have found no prejudice nor have we been directed to any in the record. We find no due process violation and hence conclude that the amendment of the informations was proper.

In addition to the challenge to the amendments in the informations, Mosley also argues that the Commonwealth failed to sustain its burden to disprove self-defense and that the evidence was insufficient to support the verdict. Our review of the record leads us to conclude that neither contention is of merit. First, after reviewing all evidence presented by both the defendants and the Commonwealth, we conclude that the trial court correctly determined that Mosley failed to establish the elements of justification of use of deadly force for self-protection. 18 Pa.C.S. § 505. Commonwealth v. Aycock, 323 Pa.Super. 62, 470 A.2d 130 (1983). As a participant in the gang fight, he was not free from fault in provoking and continuing the alleged attack; he failed to prove how he was in imminent danger of death or serious bodily harm; and he violated his duty to retreat. See Commonwealth v. Brown, 491 Pa. 507, 421 A.2d 660 (1980).

With regard to sufficiency, viewing the evidence and all inferences that can reasonably be drawn in the light most favorable to the Commonwealth, we conclude that the evidence was sufficient to support the conviction for aggravated assault. The court as factfinder found that the firing of shots into a crowded area at rival gang members constituted an attempt to cause serious bodily injury. See Commonwealth v. Daniels, 467 Pa. 35, 354 A.2d 538 (1976).

The court sentenced Mosley separately for his convictions for aggravated assault and for recklessly endangering another person. Although these sentences were to run concurrently, the situation presents the question of whether these crimes should have merged for sentencing purposes. As a question of legality of the sentence, we may properly raise and address it although Mosley has not done so. In recent companion cases, our supreme court has reformulated the test for whether crimes should merge for sentencing purposes. Crimes merge only if one crime is a lesser included offense of the other and if both crimes are based upon the same action. See Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989); Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989).

It has been established that reckless endangerment is a lesser included offense of aggravated assault because the elements of aggravated assault include all the elements of reckless endangerment. Commonwealth v. Boettcher, 313 Pa.Super. 194, 459 A.2d 806 (1983); Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 420 A.2d 674 (1980). Therefore, the charges in question merge for sentencing purposes, even under the new, narrower standard. Since the sentences are to run concurrently, however, we need not remand for resentencing but need only vacate the judgment of sentence for reckless endangerment. See Commonwealth v. Boettcher, supra.

Judgment of sentence for recklessly endangering another person is vacated. In all other respects, judgment of sentence is affirmed.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    585 A.2d 1065
    COMMONWEALTH of Pennsylvania, Appellee, v. Marco PETICCA, III, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1990.
    Filed Jan. 29, 1991.

      Michael P. Dignazio, Media, for appellant.
    Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com., appellee.
    Before DEL SOLE, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the judgment of sentence for possession with intent to deliver a controlled substance and possession of drug paraphernalia by the appellant, Marco Peticca, III. We affirm.

The sole issue raised for our consideration by the appellant appears at page 3 of his appellate brief under the caption “Statement Of Question Involved” and reads:

IS THE LACK OF A JUDICIAL SEAL ON A SEARCH WARRANT MERELY A TECHNICAL DEFECT WHICH
ALONE DOES NOT IMPLICATE CONSTITUTIONAL PROTECTION?

More particularly, it is the contention of the appellant that the search warrant prepared by Patrolman Joseph Caulfield of the Upper Chichester Township Police Department, “[without a judicial seal, ... [wa]s not valid and lawful process”, notwithstanding the attachment of an affidavit of probable cause signed, sworn to and subscribed by the patrolman before Joseph F. Battle, Judge of the Common Pleas Court. See Appellant’s Brief at 9.

Accordingly, the appellant seeks to have the evidence seized from his premises viewed in the context of a warrant-less search justifying, in the absence of exigent circumstances, the suppression of the evidence. We disagree and do so since the underlying predicate to his argument is flawed.

There is no disputing the fact that Pa.R.Crim.P. 2005 requires that “[e]ach search warrant shall be signed and sealed by the issuing authority” before it may be issued and executed by the authorities. However, we find the noncompliance with the “seal” aspect of Rule 2005 to be ministerial in nature so that its dispensation is not fatal to an otherwise properly prepared (in form and substance) search warrant.

To explicate, in Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984), the Court found that a search warrant that had been “signed” by the issuing authority vitiated a police search for having taken place in the absence of a valid “warrant”. In the course of making its decision, the Chandler Court wrote in pertinent part that:

Reasonable judges and legal scholars may well differ over the technicalities of how best to memorialize the facts the issuer of the warrant had when he issued it and how technical courts should be in reviewing his decision to issue. We believe, however, none ever doubted the necessity of the exercise of judicial discretion.
Both the Fourth Amendment to the United States Constitution and Article I, Section 8 of our Pennsylvania

Constitution prohibit unreasonable searches and seizures. They provide that no warrant shall issue except upon probable cause supported by oath or affirmation, and that the warrant must describe the place to be searched and the person or things to be seized. This constitutional protection against unreasonable searches and seizures is not some new thing produced by recent decisions in the courts. It is rooted in long recognized principles of humanity and civil liberty.

In Johnson v. United States, [333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436] [ (1948) ] the United States Supreme Court stated:

The point of the Fourth Amendment which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime____ When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.

The issuing judicial authority, in this case a District Justice, has the authority and obligation to draw such reasonable inferences as he will from the material supplied to him by police applying for a warrant and to make a finding on the issue of probable cause. Moreover, the magistrate is free to exact such assurances as he deems necessary to insure that the information on which probable cause is based has been obtained in a reliable way from a credible person.

The magistrate’s function is more than the ministerial one of administering an oath to an officer who has set forth facts the officer believes constitute probable cause. The magistrate must make a judicial determination, albeit a non-technical, common sense judgment, ..., as to whether probable cause exists. It is not

enough for a policeman to present an affidavit to the magistrate prior to the search which affidavit the judiciary may consider on the issue of probable cause with complete hindsight after the police have completed their search. The magistrate must actually make a finding of probable cause to validate the warrant before he issues it. Moreover, he must do it by written order. It is not enough that in this case the Commonwealth presented District Justice Tempest with sufficient facts to justify a finding of probable cause. The record does not show he rendered a judicial determination on that issue.
Where is it clear from the warrant that the District Justice intended to issue it but there are technical errors in the warrant our appellate courts have permitted its amendment. An omission or error in the warrant is fatal only if it deprives the suppression court of the ability to review the propriety of the issuance and execution of the warrant.

505 Pa. at 121-124, 477 A.2d 855-856 (Citations omitted; footnote omitted; emphasis added).

Instantly, unlike in Chandler, we had the issuing authority (a Common Pleas Court judge) approached by police for the issuance of a search warrant. The affiant had prepared a two-and-one-half-page typed affidavit of probable cause document in support of a request for a warrant to search the appellant’s residence for controlled substances and drug paraphernalia. The affidavit was sworn to and subscribed before Judge Battle by Patrolman Joseph Caulfield. The same signature execution appeared on the bottom of the search warrant application; it was a separate instrument and was signed and dated by Judge Battle on December 27, 1988.

The issuing judicial authority complied with his obligation to review the affidavit of probable cause and executed his signature verifying the issuance of the search warrant as required by law. See Chandler, supra.

Albeit Pa.R.Crim.P. 2005 requires that a search warrant be signed and sealed by an issuing authority, we find that the primary obligation of an issuing authority, i.e., determine if probable cause exists to justify the issuance of a search warrant, was satisfied by Judge Battle sufficient to comply with the Fourth Amendment requirements justifying the grant of a warrant. Id.

We quote with approval the assessment of the case made by the Trial Court Judge (who also presided over the suppression hearing) in his denial of the appellant’s post-trial motions, one of which chállenged the search of the appellant’s residence as “not [being] pursuant to a properly and lawfully issued warrant.....”; to-wit:

It is conceded that magistrate error can be of constitutional dimension in negating the validity of a search warrant. However, a different set of circumstances applied in the present case. Judge Battle reviewed the search warrant and made a written independent determination that probable cause existed. He signed the warrant and completed the warrant in its entirety but did not seal the warrant prior to returning it to the police officers. In light of the standards set by the Mason Court, it appears that the lack of a judicial seal alone on a search warrant is a technical defect which does not arise to the level of constitutional dimension. Judge Battle made a finding that probable cause existed and so noted on the warrant.[] He obviously reviewed the facts before making that finding and determination on the warrant. Therefore constitutional provisions and protections were applied and carried out in the application and execution of the search warrant.

Lower Court Opinion at 3-4 (Citations omitted). Thus, consistent with the principle objectives recited in Chandler to approve a search warrant application, the issuing authority instantly “actually ma[d]e a finding of probable cause to validate the warrant before he issue[d] it ... by written order.” See note 4, supra. Stated differently, the record shows that the issuing authority rendered a judicial determination on the issue of probable cause. Id.

Interestingly enough, nowhere in the record below or on appeal does the appellant challenge the authenticity of the signatures of either the issuing authority or the affiant. His sole ground for assailing the search warrant is not, therefore, a substantive assault on fundamental due process precepts. See, e.g., Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (Misdating by magistrate did not render search warrant invalid); Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983) (Rubberstamp facsimile of district attorney’s signature on bills of information satisfied Pa.R.Crim.P. 225(b)’s requirement that information be “signed” by attorney for the Commonwealth). As such, the affixing of a “seal” to a search warrant application is a procedural requirement done to authenticate the document. See Black’s Law Dictionary 1516-17 (Rev. 4th ed. 1968). It is not, however, a sine qua non to its validation as a judicially reviewed instrument by an impartial member of the judiciary to determine the presence of probable cause to validate the warrant before having it issued. See Chandler, supra, and compare with Commonwealth v. Williams, 237 Pa.Super. 324, 352 A.2d 67 (1975) (Both signature and seal of issuing authority missing so as to invalidate search warrant); Commonwealth v. McAfee, 230 Pa.Super. 336, 326 A.2d 522 (1974) (semble).

We examined the sparse law on the question presented and conclude that the role of the issuing authority (as the arbiter of the presence or absence of probable cause) was not perverted in contravention of one’s Fourth Amendment right to be free of unreasonable searches and seizures. The essential function of the issuing authority was preserved at bar when Judge Battle affixed his signature on both the search warrant application and affidavit of probable cause to conclude that “probable cause” existed to authorize the search of the appellant’s premises. The contention to the contrary is found to be meritless.

Judgment of sentence affirmed.

      . At trial, the appellant was convicted of driving while under the influence, possession of a controlled substance (cocaine, marijuana and phencyclidine), possession with intent to deliver controlled substances and possession of drug paraphernalia. At the time set for sentencing, a term of imprisonment for driving under the influence of 48 hours to 23 months was imposed and it was to be served concurrently with the 4-10-year term of imprisonment issued for possession with intent to deliver conviction. The possession of a controlled substance conviction merged for sentencing purposes with the intent to deliver conviction, while the paraphernalia offense resulted in a 6-month to 1 year concurrent sentence imposed by the court.

      . It appears that a District Justice could not be located at the time. As a result, the police went to the judge’s residence to secure the warrant—the seal of the judge was at his courthouse office.

      . This issue is preserved inasmuch as the appellant’s Omnibus Pre-Trial Motion For Relief at paragraph 7 provided: "That the alleged warrant was not as a matter of law properly issued by the District Justice.” (Emphasis added) The pre-trial motion was denied following a hearing on May 19, 1989, by an order of court dated May 30, 1989.

      . On the reverse side of the search warrant application appears the following printed language:

        TO LAW ENFORCEMENT OFFICER: WHEREAS, facts have been sworn to or affirmed, before me by written affidavit(s) attached hereto from which I have found probable cause____[27th of Dec., 1988]
      /s/ Joseph F. Battle (SEAL)
      (Signature of Issuing Authority)


author: FORD ELLIOTT, Judge: WIEAND, Judge,

text:
    585 A.2d 1069
    COMMONWEALTH of Pennsylvania v. Charles MAYFIELD, Appellant.
    Superior Court of Pennsylvania.
    Argued May 31, 1990.
    Filed Jan. 30, 1991.

      Marilyn J. Gelb, Philadelphia, for appellant.
    Hugh Burns, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, WIEAND, OLSZEWSKI, MONTEMURO, BECK, KELLY, POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

Appellant appeals his conviction by a jury of aggravated assault and possession of instruments of crime generally. Appellant was acquitted of felonious aggravated assault and criminal conspiracy. Timely post-verdict motions were denied and appellant was sentenced to two and one-half to five years imprisonment on each conviction, sentences to run concurrently.

The incident giving rise to this appeal occurred on November 14, 1983. John Maurer and Ernest Miller were driving their cars in opposite directions on narrow Cambridge Street in Philadelphia, and each found he was unable to pass the other. A dispute arose regarding who should back up and allow the other to pass, especially as Maurer’s car had stalled. Appellant, Charles Mayfield, was a passenger in Miller’s car, and Maurer and Mayfield exchanged words and a street fight ensued, which resulted in appellant’s arrest. Appellant was charged with simple and aggravated assault involving swinging a baseball bat at Maurer, biting him on the chest and inflicting a stab wound on his chest with a knife. Appellant admitted at trial that he bit Maurer on the chest and that he pulled his knife during the course of the fight. However, he denied that he inflicted any stab wound upon Maurer and rather testified that when he produced his knife, Maurer ran away.

The issue as presented by the Commonwealth for this court’s review is whether appellant is entitled to an instruction on self-defense when appellant denied committing the act for which he was convicted.

Self-defense is defined by statute as follows:
The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such person on the present occasion.

18 Pa.C.S. § 505(a).

The use of deadly force is further limited by § 505(b)(2) which prohibits the use of such force except under circumstances where “the actor believes that such force is necessary to protect himself against death or serious bodily injury.” Deadly force is defined as “[fjorce which, under the circumstances in which it is used, is readily capable of causing death or serious bodily injury.” 18 Pa.C.S. § 501.

Before the issue of self-defense may be submitted to a jury for consideration, a valid claim of self-defense must be made out as a matter of law, and this determination must be made by the trial judge. Such claim may consist of evidence from whatever source. “Such evidence may be adduced by the defendant as part of his case, or conceivably, may be found in the Commonwealth’s own case in chief or be elicited through cross-examination.” Commonwealth v. Rose, 457 Pa. 380, 389, 321 A.2d 880, 884 (1974) (similarly discussing the type of evidence necessary to place in issue a defense of intoxication). However, such evidence from whatever source must speak to three specific elements for a claim of self-defense to be placed in issue for a jury’s consideration.

Thus, as provided by statute and as interpreted through our case law, to establish the defense of self-defense it must be shown that a) the slayer was free from fault in provoking or continuing the difficulty which resulted in the slaying; b) that the slayer must have reasonably believed that he was in imminent danger of death or great bodily harm, and that there was a necessity to use such force in order to save himself therefrom; and c) the slayer did not violate any duty to retreat or to avoid the danger. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976); Commonwealth v. Cropper, supra [463 Pa. 529, 345 A.2d 645] (1975).

Commonwealth v. Black, 474 Pa. 47, 52, 376 A.2d 627, 630 (1977). If there is any evidence from whatever source that will support these three elements then the decision as to whether the claim is a valid one is left to the jury and the jury must be charged properly thereon by the trial court.

Our case law makes it crystal clear that the charge of self-defense must be given upon request where the jury would have a possible basis for finding it. See Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977).
While there is no burden on the defendant to prove a claim of self-defense, it is nevertheless required that before such a defense is properly in issue at trial, there must be some evidence, from whatever source, to justify such a finding. Commonwealth v. Black, supra, 474 Pa. at 53, 376 A.2d at 630. See also Commonwealth v. Walley, 466 Pa. 363, 367, n. 2, 353 A.2d 396, n. 2 (1976); Commonwealth v. Cropper, 463 Pa. 529, 537-538, 345 A.2d 645, 649 (1975).
Thus, if there was evidence which would have supported the claim of self-defense, it was for the trier of fact to pass upon that evidence and improper for the trial judge to exclude such consideration by refusing the charge. Commonwealth v. Gonzales, 463 Pa. 597, 345 A.2d 691 (1975); Commonwealth v. Lowe, 460 Pa. 357, 333 A.2d 765 (1975).

Commonwealth v. Brown, 491 Pa. 507, 512, 421 A.2d 660, 662 (1980); in accord, Commonwealth v. Bailey, 324 Pa. Super. 236, 471 A.2d 551 (1984) and Commonwealth v. Maione, 382 Pa.Super. 47, 554 A.2d 939 (1989). This is so even though the evidence of self-defense may appear to the trial court as not credible, for “it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced ... The fact finder is free to believe all, part, or none of the evidence.” Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975).

Having thus defined self-defense and the functions of both the trial court and the jury in assessing the evidence relative to the claim, we now must decide whether a claim of self-defense can be made out as a matter of law sufficient to go to the jury on instruction if the defendant denies committing the injury which represented the use of deadly force.

In support of the contention that appellant is not entitled to a self-defense instruction because he denied stabbing the victim, the Commonwealth cites to our supreme court’s decisions in Commonwealth v. Gay, 489 Pa. 17, 413 A.2d 675 (1980), Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979), Commonwealth v. Young, 460 Pa. 598, 334 A.2d 252 (1975) and Commonwealth v. Gray, 441 Pa. 91, 271 A.2d 486 (1970).

In Commonwealth v. Gay, supra, on appeal from denial of PCHA relief, Gay alleged the ineffectiveness of trial counsel for failing to appeal the trial court’s refusal to charge on self-defense following his conviction of first degree murder and aggravated assault and battery. The supreme court in deciding this issue reviewed the Commonwealth’s and Gay’s version of the shooting which occurred.

According to the Commonwealth’s evidence, appellant and one Vaughan Stockton were at a party at the home of his estranged wife, Falivia Gay, on April 24, 1971. An exchange took place in which appellant accused Stockton of being involved with his wife and invited him to leave the .party. Appellant, his wife, and Stockton all went outside. Further words were exchanged and then appellant took out a gun that he was carrying, shot and wounded Stockton, and chased his wife down the street. Several shots were heard. Appellant’s wife was found dead by the police. Appellant contended that Stockton had the gun, that it went off while he and Stockton were struggling with it, and that Stockton then chased him and his wife.

489 Pa. at 20, 413 A.2d at 677. The court cited Commonwealth v. Black, supra, for the proposition that Gay would have been acting in self-defense if, not being at fault in provoking the incident, he had done the shootings under a reasonable belief that his action was necessary to protect himself from death or serious bodily harm. However, the court then decided “[ajppellant contended that Stockton was the perpetrator. Since he denied having done the shootings at all, there was no issue of self-defense.” 489 Pa. at 21, 413 A.2d at 677 (citation omitted). In essence, the court concluded that there was no showing that appellant used deadly force in the belief that he was defending himself. Rather, at most, Gay’s own testimony indicated that the gun discharged accidently during a struggle.

In Commonwealth v. Powers, supra, Powers argued on appeal that the trial judge committed reversible error in refusing to grant his request to instruct the jury concerning the law of self-defense. Powers relied on his own testimony as raising an inference that he was acting in self-defense.

Appellant testified that he and his companions went to the area of the intersection of 32nd and Berks Street (the area where the stabbing occurred) looking for some girls he had recently met, and that while they were asking a young man if he knew the girls, a gang suddenly emerged from a store wielding knives and began chasing them. While appellant testified he was afraid, the only physical contact which he said took place was that someone hit and pushed a ‘dude’ who was in front of them on 31st Street, and that a ‘dude’ came off a porch and tried to grab Howard Kemp (co-defendant) but that ‘dude’ fell back. Appellant flatly denied stabbing anyone and denied that any of his companions had been injured or had stabbed anyone.

484 Pa. at 208, 398 A.2d at 1015.

Again citing Black, supra, for the general rule on self-defense, the court stated that:

Before self-defense is in issue, there must be evidence introduced, from whatever source, to justify a finding that the killing may have been done in self-defense ... Our review of the record convinced us that the requisite elements of self-defense have not been presented.
As noted, appellant denied knowledge of any stabbing. The only physical contact admitted by appellant was hitting and pushing one person who was in the way of he and his friends and, inferentially, perhaps jostling another who had come off a porch. Certainly, the testimony did not establish that either of these ‘dudes’ were provoking the difficulty or were acting in a manner sufficient to instill a reasonable belief that it was necessary to use deadly force against them. In similar cases, we have held that where a defendant steadfastly denies that he or his companions used deadly force against the victim and where the issue of self-defense was not otherwise injected into the trial by either the prosecution or the defense, the failure to charge upon the subject was not error.

484 Pa. at 204, 398 A.2d at 1015 (citations omitted). In essence, the court found that the evidence presented merely established that a fight had occurred and nothing in Powers’ testimony or any other evidence indicated that Powers utilized deadly force in defense of himself.

In Commonwealth v. Young, supra, Young also argued on direct appeal that it was error for the trial judge to refuse to charge on self-defense in his trial for voluntary manslaughter. In quickly disposing with the issue, the court stated:

Appellant next argues that the trial judge erred in refusing to give appellant’s requested charge relating to self-defense. We do not agree. Appellant’s confession established that the homicide was committed after an initial encounter with the victim and after which he obtained a gun and sought out the victim to continue the affray. This certainly takes the case out of the rule of self-defense. Moreover, appellant’s trial testimony in no way establishes self-defense. Appellant testified at trial that he did not commit the homicide. Under these facts, we find no error in the trial judge’s refusal to charge on self-defense. See Commonwealth v. Camp, [459] Pa. 569, 330 A.2d 844, [ (1975) ].

460 Pa. at 601, 334 A.2d at 253. Therefore, even though there was conflicting evidence presented at trial as to whether he committed the act of using deadly force—i.e., Young’s introduced confession and his own trial testimony, the court still found that the circumstances of the homicide, by definition, precluded a claim of self-defense because he at no time acknowledged the use of deadly force for his own protection.

It is interesting to note that Young also argued an alibi instruction should have been given, however, the court without discussion of the inconsistency between the two requested instructions, summarily determined that Young’s own testimony precluded the defense of alibi.

Finally, in Commonwealth v. Gray, supra, the defendant argued on appeal from a murder conviction that the trial court should have given a self-defense instruction. Gray had testified that he joined an ongoing fight involving several individuals and that while he admitted punching the victim, he denied steadfastly that he ever possessed a knife or that he stabbed the victim. Noting the three elements which must be satisfied before a defendant can invoke the defense of self-defense, infra, the court stated:

[AJppellant’s testimony as to the victim’s death, if believed, would establish that someone else stabbed the victim. The Commonwealth’s evidence, if believed, shows a homicide committed by Gray. The issues of self-defense or defense of another were not injected into this case at trial by either the Commonwealth or the appellant. That being so, the failure to charge upon the subject was not error. 421 Pa. at 574, 220 A.2d at 809. An analogous result was reached by the Superior Court as to the privilege to eject trespassers when that right was not relied on by the accused. Commonwealth v. Zubik, 194 Pa.Super.Ct. 248, 166 A.2d 666 (1960). There is no reason in this particular situation to distinguish the doctrines of self-defense and defense of another from those of homicide by misadventure and the privilege to eject trespassers when the accused does not avail himself of these defenses. “Where the defense is that the accused did not kill or participate in the homicide, instruction on self-defense in not necessary.” 41 C.J.S. Homicide § 379 n. 16 (1944)

441 Pa. at 96, 271 A.2d at 488-489.

The consistent rationale running through all of these cases is that the defendants denied the use of deadly force in defense of themselves. In so doing, the defendants denied the act involved in self-defense, such act being the use of deadly force upon or toward another under defensive circumstances. 18 Pa.C.S. § 505(b)(2). Appellant herein would argue, as a general proposition, that even when a defendant denies the use of deadly force, if there is any evidence from whatever source that a defendant utilized the deadly force then an instruction is required. Although we agree with appellant that a defendant’s testimony need not be wholly consistent with that of the Commonwealth’s witnesses, and that the defendant need not present his own evidence, but rather may rely solely on the Commonwealth’s evidence as presenting a claim of justification, we do not agree that a defendant may negate an element of the defense and still avail himself of a beneficial instruction thereon. While there can be no evidentiary burden on a defendant to prove a claim of self defense; Commonwealth v. Jacobs, 501 Pa. 139, 460 A.2d 728 (1983), the defendant also may not provide testimony or evidence inconsistent with such a claim and still avail himself of the defense. Moreover, the Commonwealth is entitled to rely on such inconsistencies to carry its burden to disprove an element of self-defense beyond a reasonable doubt.

When an issue of self-defense is presented to the jury we ask the jury to assess whether the particular defendant’s belief that he was in immediate danger was reasonable. As set out in the Standard Jury Instruction promulgated by the Pennsylvania Bar Institute, 9.505(2)

(2) The basic rule for self-defense is that a defendant is justified in using force against another person if he reasonably believes he is in immediate danger of unlawful force from that person and reasonably believes it is necessary, then and there, to use the force which he does use to protect himself. (“Unlawful force” includes__) (Note that a defendant’s right of self-defense depends upon what he reasonably believes. Thus the right of self-defense may be available not only to a person who is in actual danger of unlawful attack but also to one who mistakenly believes that he is. A defendant is entitled to estimate the necessity for the force he employs under the circumstances as he reasonably believes them to be at the time. In the heat of conflict, a person who has been attacked ordinarily has neither time nor composure to evaluate carefully the danger and make nice judgments about exactly how much force is needed to protect himself. Be realistic; consider the limitations of human nature when judging what the defendant believed and whether his beliefs were reasonable.)

Therefore, the jury is permitted to consider those characteristics of the defendant which would lead to a conclusion, not that the defendant was in fact in danger, but rather that he reasonably believed himself to be in danger. Such factors, as the physical stature of the defendant versus the victim, or the prior relationship between the defendant and the victim, or the defendant’s state of mind at the time of the incident can all figure into the jury’s assessment of reasonableness. Commonwealth v. Stonehouse, 521 Pa. 41, 555 A.2d 772 (1989); Commonwealth v. Watson, 494 Pa. 467, 431 A.2d 949 (1981). Moreover, in the event that a defendant denies the use of deadly force at all, we may hardly ask the jury to determine if the defendant reasonably believed such force was necessary. By denying such use of deadly force a defendant, in essence, negates one of the elements of self-defense—that being he must have believed himself reasonably to be in imminent danger of death or bodily harm, and that the use of deadly force upon or toward another person was necessary to prevent such harm.

It is the specific denial of the use of deadly force for one’s own protection which precludes the claim of self-defense being put in issue. To hold otherwise, has the possibility for absurd results. For instance, a defendant could request that the jury consider self-defense while at the same time claiming a defense of mistaken identity or alibi. Even in closer cases, such as those in which the facts present a case for an accidental shooting, a request for an instruction on self-defense has been denied as being inconsistent unless the circumstances of the case allow that the accidental injury or death occurred within the course of the actor defending himself. This question was addressed by our supreme court in Commonwealth v. Webster, wherein a defendant’s testimony raised an inference of accidental killing, and therefore the defendant was not entitled to a charge on self-defense.

The Commonwealth’s witnesses testified that appellant pointed the gun at the victim. Only appellant claimed the victim pointed the gun at him. He testified that as he struggled to wrestle the pistol free, it discharged. At best appellant’s explanation suggests that the killing may have been accidental.. However, it also destroys the second element of self-defense; that appellant reasonably believed that he was in imminent danger of death or great bodily harm. When appellant was specifically asked upon cross-examination if he had been acting in self-defense, appellant conceded that he had not. At no time was there any testimony that appellant intentionally fired the gun in an attempt to defend himself.

Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491, 493 (1980). This court has held similarly in Commonwealth v. Terrell, 276 Pa.Super. 136, 140, 419 A.2d 133, 134 (1980):

Moreover, appellant’s evidence did not show that he had acted in self-defense. Some of his testimony indicated that the killing was accidental. Some of his testimony indicated that he had intentionally shot the victim. This testimony showed that he was in control of the gun, and therefore, not acting to protect himself from danger. Thus there was no evidence that appellant acted in self defense.

See also, Commonwealth v. Young, supra and Commonwealth v. Maione, supra, (Concurring Opinion by Del Sole, J.).

In charging a jury, “it is the primary duty of the trial judge to clarify issues so that the jury may understand the questions to be resolved.” Commonwealth v. Beach, 438 Pa. 37, 40, 264 A.2d 712, 714 (1970) citing Commonwealth v. Meas, 415 Pa. 41, 202 A.2d 74 (1964). Instructions which mislead or confuse a jury by making improper or inaccurate comment on the evidence in a case may effect a greater error than the giving of no instruction at all. “As a general rule the trial court should instruct the jury on the law applicable to the facts of the case before it and should charge only on those points and issues which arise out of the evidence and arguments presented.” Commonwealth v. Schaller, 493 Pa. 426, 431, 426 A.2d 1090, 1093 (1981) citing Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671 (1975).

We hold today, that where a defendant denies the act of using deadly force in defense of himself, he has negated one of the elements of self-defense; therefore, he may not avail himself of an instruction on justification even though evidence from other sources would be sufficient to put the claim in issue.

However, having stated thus, it is not so clear to this court that the appellant herein, has denied the use of deadly force as we have defined it. Hence, a review of the evidence presented by the Commonwealth and appellant is required for a determination as to whether there is any evidence, from whatever source, which would make out a claim for self-defense.

The Commonwealth’s evidence substantially presents the following:

The trial evidence established that on November 14, 1983, at about 11:45 a.m., the victim, John Maurer, drove his car east in the 1200 block of Cambridge Street, a narrow street with one driving lane and one parking lane. At the opposite end of Cambridge Street, another car entered and headed west toward the victim’s vehicle. The driver of the second car, Ernest Miller, and defendant, a passenger, stopped to speak to someone while the victim waited to proceed in his car. Although Miller could have driven around the victim’s car to pass, he instead drove his vehicle up to the victim’s and stopped one foot away. Miller then repeatedly hit the bumper of the victim’s car with his own. The victim shifted into reverse and made several attempts to back up his car to avoid the confrontation, but the vehicle stalled each time. Frustrated, the victim got out of his car, approached Miller in the driver’s seat, and explained that he was unable to move his car. Miller began cursing at the victim, and a verbal altercation ensued (N.T. 7/2/84, 11-16).
At that point, defendant, whom the victim had not noticed, jumped from the passenger side of Miller’s car, carrying a baseball bat, and approached the victim. When the victim turned to meet defendant’s attack, Miller left the driver’s seat and grabbed the victim from behind, immobilizing his arms. Defendant swung the bat twice, but the victim had broken free from Miller’s grasp and successfully blocked the blows. Both defendant and the victim then fell to the ground fighting. A co-worker of the victim’s who witnessed the assault by defendant and his cohort, intervened to restrain Miller. Defendant, who was lying on top of the victim, bit the victim on the chest; the victim then hit defendant twice. Both men rose to their feet. Defendant pulled out a ten-inch hunting knife and lunged at the victim, stabbing him in the left chest area. The victim had no weapons (N.T. 7/2/84,15-18, 22, 75-81111, 101).

Commonwealth’s brief at 2-3.

Appellant’s version of the events on the night in question, not surprisingly, differs substantially.

Charles Mayfield testified on his own behalf in this trial, denying that he was the aggressor. He said Maurer told him and the driver to back up an entire block, and at the same time he began hollering obscenities at them. Id. 136. These obscenities caused him and Miller to holler also. Id. He testified Maurer then got out of his car and pulled him out of the car in which he had been the passenger. Mr. Mayfield continued his account by testifying Maurer choked him and got him in a bear hug. Id. 138-139. Maurer’s much larger size resulted in Mr. Mayfield standing at this time in such a position that his face came only to Maurer’s chest, Id. 138-139, Maurer being 6 feet, 2 inches and 180 pounds. Id. 32.
They fell to the ground with Mr. Mayfield on top of Maurer and Maurer still holding him around the neck. It was at this juncture that Mr. Mayfield said the only way he could cause Maurer to release him was to bite him on the chest. Id. 140-141. (Mr. Mayfield testified further that the reason he bit Maurer was because Maurer was choking him to death.)
On cross-examination, Mayfield admitted causing the bite, but denied stabbing Maurer. Id. 151. He said Maurer told him he had enough when he saw the knife, and this caused him (Maurer) to run away. Id. He tried to free himself from Maurer’s grip but was unable to do so until he pulled out his knife. Id. 156-157. Mayfield’s testimony was the only defense evidence introduced.

Appellant’s brief at iii-v. Additionally, as noted by appellant, defense counsel’s entire closing argument centered on a theory of self-defense.

Within this factual context, appellant was charged with two counts of aggravated assault, specifically, felony of the second degree, and aggravated assault as a misdemeanor first degree. Appellant was convicted of the less serious charge under 18 Pa.C.S. § 2702(a)(4) which reads “attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.” In defining the charge to the jury, the trial court instructed as follows:

Now, aggravated assault may also be a misdemeanor of the first degree, which is a less serious form of aggravated assault. Now there are 2 elements to the crime of aggravated assault as a misdemeanor of the second degree—misdemeanor of the first degree.
First, that the defendant attempted to cause bodily injury to John Maurer. Now, you notice, felony, serious bodily injury, misdemeanor is bodily injury which I have already defined for you.
Now, in order to find that the defendant attempted to do this, you must find that the defendant engaged in conduct which constituted a substantial step toward causing bodily injury to John Maurer and that his conduct in this regard was intentional or in other words that it was his conscious object to cause such injury.
2. That the defendant used a deadly weapon in the attempt which I have already defined for you. If after considering all the evidence you find that the Commonwealth has established beyond a reasonable doubt all of the elements which I have stated, you should find the defendant guilty of aggravated assault as a misdemean- or, otherwise you must find the defendant not guilty of aggravated assault.
Now, let me just summarize that. Aggravated assault as a felony of the second degree constitutes an attempt to commit serious bodily injury. Aggravated assault which constitutes a misdemeanor of the first degree is an attempt to cause bodily injury or bodily injury, that’s the distinction. (N.T. 75 and 76 on charge)

Notes of Testimony, N.T., 7/3/84 at 75-76. Hence the conduct of appellant which the jury was charged to consider was whether appellant attempted to cause bodily injury to the victim with a deadly weapon. The jury was told that if they found that appellant pulled a knife intending to cause bodily injury to the victim, they could convict appellant of aggravated assault. However, what the jury was not told was if they found that appellant pulled his knife in the reasonable belief that he was defending himself then his actions were justified.

The Commonwealth argues that without an admission by appellant that he stabbed the victim, no self-defense claim has been made. While as noted in our earlier discussion, a denial of the use of deadly force would preclude appellant from asserting his self-defense claim, we do not find that appellant has denied the use of deadly force, but merely has denied causing the injury to Maurer once he pulled his knife. Under the Commonwealth’s theory, even if appellant had testified that in defense of himself he lunged at Maurer with the full intent to cause injury but did not know that he in fact hit his mark, he still would not be entitled to a charge on self-defense because he did not admit the actual injury. However, such an argument ignores that it was not the injury to the victim that the jury was instructed to focus on, but rather the actions or conduct of appellant which led to the injury,—that is his use of deadly force. We find appellant’s testimony that he pulled the knife in preparation to use it against the victim in defense of himself to be a sufficient showing of a use of deadly force to at least put the question of self-defense before the jury. See Commonwealth v. Jones, 231 Pa.Super. 300, 332 A.2d 464 (1974) (mere wielding of a knife amounts to use of deadly force) cited with approval in Commonwealth v. Cutts, 281 Pa.Super. 110, 421 A.2d 1172 (1980).

In Commonwealth v. Gonzales, 334 Pa.Super. 603, 483 A.2d 902 (1984), this court determined that the mere act of pointing a gun at an individual while denying any attempt to shoot the revolver, was sufficient conduct to constitute an assault; therefore, the defendant should have been permitted to raise the issue of self-defense. Implicit in this holding is that the mere pointing of the revolver constituted an act of using deadly force. In accord, Commonwealth v. Rittle, 285 Pa.Super. 522, 428 A.2d 168, (1981) (defendant entitled to self-defense charge where he admitted pointing gun at victim but alleged that victim was the aggressor. Conviction for simple assault reversed and new trial granted.)

In Gonzales, the Commonwealth again citing Powers and Gray, had argued the trial court properly refused to charge on self-defense because the defendant denied that he attempted to fire the pointed weapon at police officers. In distinguishing these cases, the Gonzales court stated:

In both cases, the victims were stabbed to death. In each case, the defendants were charged with homicide, however they both denied knowledge of any stabbing. On that basis, it was held that self-defense was not an issue and instructions on self-defense were not required. The Powers court stated: “In similar cases, we have held that where a defendant steadfastly denies that he or his companions used deadly force against the victim, and where the issue of self-defense was not otherwise injected into the trial by either the prosecution or the defense, the failure to charge upon the subject was not error.” Commonwealth v. Powers, 484 [Pa.] at 204, 398 A.2d at 1016.
First, we note that in Powers and in Gray, supra, the defendants were trying to raise inconsistent defenses. In those cases, the defendants maintained that they did not participate in the stabbing, yet they requested a charge on self-defense. The Appellant in this case differs because he does admit that he held a gun pointed at the officers.

334 Pa.Super. at 607, 483 A.2d at 904.

Therefore, consistent with Gonzales, we find that appellant's admission that he pulled his knife because Maurer “said he was going to kill me,” (N.T., 7/2/84 at 141) is a sufficient showing that he used deadly force in defense of himself to at least allow for an instruction on self-defense. Appellant at no time denied that he produced the deadly weapon with intent to use it in his own defense.

It remains the province of the jury as to whether appellant was free of provocation, as to whether he had a duty to retreat, as to whether his belief that he was in danger of serious bodily harm or death was reasonable, and as to whether his use of deadly force was excessive under the circumstances.

We emphasize that our decision today is consistent with the supreme court’s decisions in Gay, Powers, Young and Gray and this court’s decisions in Rittle, Gonzales and Terrell. Because appellant did not receive the jury instruction to which he was entitled based on the evidence at trial, the judgment of sentence must be vacated and the case remanded for a new trial.

Judgment of Sentence vacated. Case remanded for a new trial.

WIEAND, J., files a concurring statement in which ROWLEY, J., joins.

WIEAND, Judge,

concurring:

I concur in the result. I would hold that a self-defense charge must be given upon request whenever there is evidence, from whatever source, to justify such a finding. Commonwealth v. Brown, 491 Pa. 507, 421 A.2d 660 (1980). In the instant case, there was evidence which, if believed, would have justified a finding that appellant acted in self-defense. Therefore, it was error to refuse a requested instruction on self-defense and thereby prevent the jury from considering such defense. I agree with the majority that appellant must be granted a new trial.

ROWLEY, P.J., joins.

      . This case comes before this en banc panel on the grant of the Commonwealth’s application for reargument. A panel of this court initially affirmed appellant's judgment of sentence on July 29, 1988, (Wieand and Del Sole, JJ.; Cavanaugh, J., dissenting). Appellant then petitioned for allowance of appeal and on July 19, 1989, the Pennsylvania Supreme Court issued a per curiam order directing this Court to determine on the merits whether the trial court should have instructed the jury on self-defense. On remand, the same panel issued a memorandum decision on September 18, 1989, vacating the judgments of sentence and remanding for a new trial finding that appellant was entitled to a self-defense instruction.

      . The Gray court went on to hold that the accused had the burden of proving self-defense by a preponderance of the evidence. However, this part of the holding of the court has since been repudiated. (1974), See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978). Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974).

      . Subsequent to appellant’s conviction, the section under which appellant was convicted was upgraded to felony second degree. 18 Pa.C.S. § 2702(b) (effective February 9, 1987).

      . We note that these cases may very well work to the disadvantage of appellant on the merits of his self-defense claim in that they hold that such deadly force is not justified and may be excessive in response to such non-deadly force as a victim’s fist.

      . It is unclear from the Gonzales decision under what specific subsection of 18 Pa.C.S. § 2702 the defendant was charged, however such is not crucial to our discussion herein.


text:
    585 A.2d 1078
    COMMONWEALTH of Pennsylvania, Appellant, v. Steven JENKINS, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1990.
    Filed Jan. 30, 1991.
    Eric Schoenberg, Asst. Dist. Atty., Philadelphia, for Com.
    Gerald A. Stein, Philadelphia, for appellee.

      Before DEL SOLE, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Philadelphia County granting a motion to suppress evidence filed by the defendant/appellee, Steven Jenkins, and appealed by the Commonwealth. We reverse.

In reviewing a suppression court’s order suppressing evidence, we, as an appellate court, must consider only the evidence of the defendant’s witnesses, and only so much of the evidence presented by the prosecution as remains uncontradicted by the record as a whole. Commonwealth v. Hamlin, 503 Pa. 210, 215-16, 469 A.2d 137, 139 (1983). When the evidence supports the factual findings of the suppression court, we may reverse only if there is an error of law. Commonwealth v. Reddix, 355 Pa.Super. 514, 518, 513 A.2d 1041, 1042 (1986). In the case at bar, the defendant/appellee presented no witnesses. Therefore, the Commonwealth’s evidence remains uncontradicted in the record. Because there is no question that the factual findings are supported by the record, we would normally address ourselves only to the validity of the court’s inferences and legal conclusions. See Commonwealth v. Cameron, 385 Pa.Super. 492, 496-97, 561 A.2d 783, 785 (1989). However, to appreciate our ruling, the facts need to be recounted; to-wit: At approximately 1:00 p.m. on the 12th of March, 1988, Philadelphia Police Officer Timothy King, in the company of his partner, was assigned to the narcotics strike-force and directed to survey the area at 8th and Butler Streets, “a source of many community complaints about drug traffic.” As told by Officer King, as to the day and time in question, he saw:

... the Defendant Jenkins on the southeast corner of 8th and Butler with a couple of other males.
After a few minutes I observed the Defendant walk across the street with one male to the west side of the street to a car that was parked in front of 3744 North 8th. It was a tan Subaru, Pennsylvania License Plate GBX 226.
He then took a key out of his right pants pocket, opened up the trunk.
******
He opened a large yellow bag and reached inside and pulled out a plastic bag with numerous green packets inside. Handed it to the male and then shut the trunk.

Suppression Hearing Transcript, 3/3/89 at 6 & 7. Continuing, the police officer testified that he observed the defendant pull a clear plastic bag containing numerous (green and blue plastic) packets containing a white substance (allegedly cocaine) from the larger yellow bag.

With nothing obstructing his view, the police officer’s observations of a white powder inside the transparent bags were made at a distance of 60-70 yards with field glasses. He added that he had seen “on numerous occasions” similar packets and believed them to contain, “based on past experience and past contacts with this type of packaging”, cocaine. The officer also saw the defendant remove a second “bundle” (containing 10-20 different size packets) and transfer it to a second unidentified male. Because no money was exchanging hands, the officer thought that the defendant was “passing out these bundles to his co-workers, more or less, for them to sell____”

Officer King returned to his vehicle and informed his partner of what he had seen. The two then drove to 8th and Butler and placed the defendant under arrest. Officer King removed a key from the defendant’s pocket and opened the trunk of the Subaru. He found a large yellow plastic bag containing 44 clear “ziploc” bags, each of which contained 5 blue and green transparent packets with white powder. Additional bags were found bringing the total weight to 393 grams of cocaine found in the vehicle. Also found inside the trunk was an unloaded 12-gauge shotgun. The barrel and stock were sawed so that the over-all length was twenty-six inches.

After the evidence was removed and placed in a property-receipt bag # 156159, it was sent to headquarters for storage until trial. Thereafter, a preliminary hearing was conducted in which the jurist found that the Commonwealth had presented a prima facie case warranting the defendant be held for trial. Prior to trial, however, a suppression hearing was held in which the court determined that, albeit the police had probable cause to arrest the defendant, “the police had time to secure a search warrant for the vehicle and were simply not diligent in their constitutional duties.” Lower Court Opinion at 10 (Citation omitted).

Because the court found that there were no exigent circumstances excusing the police’s failure to obtain a search warrant, nor was the search conducted incident to a lawful arrest given the defendant’s removal from the vehicle and being restrained by the second officer, the absence of a warrant was fatal to the Commonwealth’s case. An appeal was perfected by the Commonwealth challenging the suppression of the evidence as inconsistent with established case law dealing with automobile searches and seizures.

We find that the court below erred in suppressing the evidence seized by police, and we do so on the strength of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

In Ross, a known informant advised police that Ross was selling narcotics out of the trunk of a vehicle parked at a specified address. Also, the informant gave police a description of the defendant, the color, model and license number of the automobile out of which the drugs were being sold. The police drove to the scene and confirmed the information about the defendant and his vehicle. When the defendant drove to a different location, the police followed and stopped him. The police directed the defendant to exit the vehicle.

While the defendant was searched, the interior of the vehicle was examined and found to contain a bullet on the front seat and a pistol in the glove compartment. The defendant then was arrested and handcuffed. One of the officers removed the defendant’s keys and opened the trunk where he found a closed brown bag. He opened the bag and discovered a number of glassine bags containing a white powder. The officer replaced the bag, closed the trunk and drove the vehicle to headquarters.

At the police station, the vehicle was searched thoroughly and found to contain $3,200.00 in cash. Thereafter, a laboratory test of the powder determined it to be heroin. The defendant was charged with possession with intent to distribute heroin.

Ross' efforts to have the drugs and money suppressed proved fruitless. Following his conviction, a three-judge panel of the Court of Appeals of the District of Columbia reversed his conviction on the ground that, albeit the police lawfully could search the automobile—including the trunk— without a warrant, the case of Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), validated the warrantless search of the paper bag but invalidated the seizure of the leather pouch where the money had been found. As a result, a new trial was required.

The Court of Appeals, this time sitting en banc, rejected the panel’s conclusion. It held that the police should not have opened either container without first obtaining a warrant. On appeal to the United States Supreme Court, the matter was given in-depth analysis beginning with the seminal case of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which permitted the warrant-less search and seizure of an automobile driven by Carroll when federal agents received information (“probable cause existed”) that Carroll and his passenger were “bootleggers” transporting liquor in violation of the now repealed National Prohibition Act.

The Carroll Court condoned the ripping of a seat cushion in the rumble-seat of the roadster and uncovering liquor bottles concealed therein. It did so using the following language:

On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.

Id. at 149, 45 S.Ct. at 283-84. Thus, it was the “impracticality” of obtaining a warrant to search an automobile in transit that provided the basis for the Carroii-automobile-exception, i.e., permitting a warrantless search provided the “officers ha[d] probable cause to believe that the vehicle contained] contraband.” Id. at 153-54, 45 S.Ct. at 285; Ross, 456 U.S. at 807-08, 102 S.Ct. at 2163-64; Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981-82, 26 L.Ed.2d 419 (1970). If this were present, then an immediate search of the contents of a vehicle could take place. Id.

However, in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), the Court refused to permit the warrantless search of a footlocker placed in an automobile. Rather, the Court reaffirmed the general principle that closed packages and containers may not be searched without a warrant since “a person’s expectations of privacy in personal luggage are substantially greater than in an automobile.” Id. at 13, 97 S.Ct. at 2484.

On facts similar to those in Chadwick, the Court in Sanders, supra, refused to uphold a warrantless search of a suitcase placed in the trunk of a taxi. As the then Chief Justice noted in his opinion concurring in judgment:

Because the police officers had probable cause to believe that respondent’s green suitcase contained marijuana before it was placed in the trunk of the taxicab, their duty to obtain a search warrant before opening it is clear under United States v. Chadwick, [supra]____
... Here, as in Chadwick, it was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband. The relatiohship between the automobile and the contraband was purely coincidental, as in Chadwick. The fact that the suitcase was resting in the trunk of the automobile at the time of respondent’s arrest does not turn this into an “automobile” exception case.

442 U.S. at 766-67, 99 S.Ct. at 2594 (Emphasis in original).

As noted by the Court in Ross, the Sanders decision could also be read to suggest:

... that a warrantless search of a container found in an automobile could never be sustained as part of a warrant-less search of the automobile itself.

456 U.S. at 814 & n. 19, 102 S.Ct. at 2167 & n. 19.

The last case scrutinized by the Ross Court was Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), wherein it considered whether police, who are entitied to conduct a warrantless search of an automobile stopped on a public roadway, may open a container found within the vehicle. The police there opened the tailgate of a station wagon and raised the cover of a recessed luggage compartment. In the compartment they found two packages wrapped in green opaque plastic. The packages were unwrapped and found to contain marijuana. Robbins was charged with various drug offenses and was denied his motion to suppress the evidence seized.

On certiorari, the Supreme Court reversed on the ground that all containers are equally protected by the Fourth Amendment unless their contents are in plain view. More particularly, Robbins’ plurality concluded that, consistent with Sanders, “a closed piece of luggage found in a lawfully searched car is constitutionally protected to the same extent as are closed pieces of luggage found anywhere else.” 453 U.S. at 425, 101 S.Ct. at 2845.

The Ross Court viewed the Robbins decision as one in which a thorough examination of the “automobile exception”, i.e., whether, in the course of a legitimate warrantless search of an automobile, police are entitled to open containers found within the vehicle, had not been pressed by the litigants. Nonetheless, such a question could be addressed by the Ross Court because the parties had framed the issue for inquiry left open in Robbins.

In reversing the invalidation of the warrantless search and seizure of the glassine opaque packets from Ross’ automobile by the en banc Court of Appeals for the District of Columbia, the high Court wrote in pertinent part that:

... the decision in Carroll was based on the Court’s appraisal of practical considerations viewed in the perspective of history. It is therefore significant that the practical consequences of the Carroll decision would be largely nullified if the permissible scope of a warrantless search of an automobile did not include containers and packages found inside the vehicle. Contraband goods are rarely strewn across the trunk or floor of a car; since by their very nature such goods must be withheld from

public view, they rarely can be placed in an automobile unless they are enclosed within some form of container.

... an individual’s expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband. Certainly the privacy interests in a car’s trunk or glove compartment may be no less than those in a moveable container. An individual undoubtedly has a significant interest that the upholstery of his automobile will not be ripped or a hidden compartment within it opened. These interests must yield to the authority of a search, however, which—in light of Carroll—does not itself require the prior approval of a magistrate. The scope of a warrant-less search based on probable cause is no narrower—and no broader—than the scope of a search authorized by a warrant supported by probable cause. Only the prior approval of a magistrate is waived; the search otherwise is as the magistrate could authorize.

The scope for a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.

$ * * * sk *

Of greatest importance, we are convinced that the rule we apply in this case is faithful to the interpretation of the Fourth Amendment that the Court has followed with substantial consistency throughout our history.

We reaffirm the basic rule of Fourth Amendment jurisprudence stated by Justice Stewart for a unanimous Court in Mincey v. Arizona, 437 U.S. 385, 390 [98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978) ]:

“The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ Katz v. United States, 889 U.S. 347, 357 [88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) ].”
The exception recognized in Carroll is unquestionably one that is “specifically established and well delineated.” We hold that the scope of the warrantless search authorized by that exception is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies that search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.

456 U.S. at 820, 823-25, 102 S.Ct. at 2172-73 (Footnotes omitted).

Under the imprimatur of Ross, we find that Officer King observed the defendant open the trunk to a vehicle on two occasions spanning ten minutes. On each occasion, the officer was able to see the defendant place his hand in a clear, yellow plastic bag containing numerous plastic packets holding a white substance believed by the officer to be cocaine. Officer King testified on direct examination that he could see through the packets because they were “transparent”, and, as such, a “white powder” was observable through his field glasses and nothing obstructed his view of the substance from his vantage point 60 to 70 yards away.

The officer had seen similar packets in the past “on numerous occasions” and believed, “based on his past experience [making 50 to 60 cocaine arrests] and contacts with this type of packaging”, the packets contained cocaine.

After the officer observed the defendant make the second transaction from the trunk of the vehicle to an unidentified male, and again witnessed no money being transferred, he and his partner drove to the scene and arrested the defendant. Once a key had been removed by the police from the defendant’s person, the trunk was opened and 393 grams in 44 see-through plastic bags were discovered containing cocaine.

Consistent with the dictates of Ross, we hold that the police had probable cause to believe that a crime was being committed and the defendant was involved in its commission. Moreover, the defendant, on two occasions on a public street during midday, opened the trunk of his vehicle and exposed the interior to anyone passing by and seeking to view its contents. The police did so with the use of binoculars. Given the circumstances of the sighting, in a high-crime area,

... the police cannot reasonably be expected to avert their eyes [even if it is by the use of enhanced vision] from evidence of criminal activity that could have been observed by any member of the public. Hence, “[w]hat a person knowingly exposes to the public, even in his own home, or office, is not a subject of Fourth Amendment protection.”

California v. Greenwood, 486 U.S. 35, 41, 108 S.Ct. 1625, 1629, 100 L.Ed.2d 30 (1988) (Citations omitted); see also Commonwealth v. Oglialoro, 525 Pa. 250, 258, 579 A.2d 1288, 1291-92 (1990); Concurring and Dissenting Opinion by Popovich, J. in Commonwealth v. Lemanski, 365 Pa.Super. 332, 359-61, 529 A.2d 1085, 1098-99 (1987).

At bar, the police were where they had a right to be and espied the defendant engaging in criminal activity on a public street. Consequently, because probable cause existed to justify the search of the lawfully stopped vehicle, the same evidence justified the search of every part of the vehicle and its contents that could have concealed the object of the search. Ross, supra; Commonwealth v. Rodriguez, — Pa. —, 585 A.2d 988 (1991).

Accordingly, the ruling of the court below being to the contrary, we reverse.

Order reversed.

      . The Commonwealth, in its brief to us, asserts that the grant of the motion to suppress effectively terminates its prosecution of the defendant. As such, this case is properly before us for review. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963); Commonwealth v. Slovikosky, 374 Pa.Super. 441, 543 A.2d 553 (1988).

      . Officer King’s partner (Officer Joseph Muzyka) was certified to perform the Beckton-Dickinson Field Test "G” and found the contents to test positive for cocaine.

      . See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) and Commonwealth v. Henry, 358 Pa.Super. 306, 517 A.2d 559 (1986).

      . The Court stated that "the extent to which the Fourth Amendment applies to containers and other parcels depends not at all upon whether they are seized from an automobile.” 442 U.S., at 764, n. 13, 99 S.Ct., at 2593, n. 13. This general rule was limited only by the observation that "[n]ot all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to ‘plain view,’ thereby obviating the need for a warrant.” Ibid.

      . To the extent that the defendant argues that on cross examination Officer King denied being able to see the content of the plastic bags from his location with binoculars, it is axiomatic that questions of credibility are for the fact-finder, who may believe all, some or none of the evidence proffered. Instantly, the record is supportive of the suppression court’s finding of fact at No. 3 that Officer King "observed ... packets containing white powder” removed by the defendant from the trunk of the vehicle and hand them to another male. As such, we see no reason to disturb this finding, nor do we have the authority to do so in the face of record evidence to buttress the same. See Commonwealth v. Hackney, 353 Pa.Super. 552, 510 A.2d 800 (1986).