author: HESTER, Judge:

text:
    605 A.2d 418
    COMMONWEALTH of Pennsylvania v. Clyde Walter DUKEMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed March 26, 1992.

      Clyde W. Dukeman, pro se.

      Henry S. Kenderdine, Jr., Dist. Atty., Lancaster, for Com., appellee.
    Before ROWLEY, President Judge, and BECK and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an order denying appellant’s second petition for post-conviction relief. Concurrent with the brief he has filed, counsel appointed to represent appellant has filed a petition to withdraw based upon his determination that the appeal is wholly frivolous. Appellant, Clyde Dukeman, has filed a pro se supplemental brief. We grant counsel’s petition to withdraw and affirm the order denying PCRA relief.

On July 15, 1987, appellant was arrested by the Pennsylvania State Police and charged with possession of drag paraphernalia, possession of cocaine with intent to deliver, and conspiracy. The charge of conspiracy was dismissed, and the remaining charges were held for court. Following a hearing on January 12, 1988, the trial court denied a motion to suppress, and the matter proceeded to a jury trial. The jury determined that appellant was guilty of the described charges on January 13, 1988. Timely-filed post-verdict motions were denied on July 20, 1988, and a presentence report was ordered. On September 20, 1988, appellant was sentenced to three to ten years imprisonment for delivery of cocaine, a consecutive sentence of one year probation for possession of drag paraphernalia, and ordered to pay a fine and to make restitution. Appellant filed a timely motion to modify sentence which was denied on February 6, 1989. No direct appeal was filed.

On December 19, 1988, appellant filed his first pro se petition pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, alleging the ineffectiveness of trial counsel for failing to file a .motion to dismiss charges pursuant to Pa.R.Crim.P. 1100. Following the appointment of counsel, the petition was dismissed without a hearing on February 23, 1989. On March 23, 1989, appellant filed a notice of appeal to this court. We affirmed on December 20, 1989. Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989) (allegation of ineffective assistance of counsel for failure to file a motion to dismiss pursuant to Pa.R.Crim.P. 1100 not cognizable under PCRA).

Appellant filed a second pro se petition under the PCRA on May 22, 1990. Present counsel was appointed to represent him. On November 26, 1990, the petition was dismissed without a hearing, and this appeal followed. Counsel for appellant presently seeks to withdraw.

If counsel for a criminal defendant, in the exercise of his professional judgment, determines that issues raised under the PCRA are meritless and the PCRA court concurs, counsel may withdraw on collateral appeal of a conviction. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). The PCRA petitioner then may proceed pro se, by privately retained counsel, or not at all. Id. The Turner court approved the following procedure for withdrawal of counsel on collateral appeal: the filing of a “no-merit” letter by counsel detailing the nature and extent of counsel’s review and listing each issue appellant wished to raise, with counsel’s explanation why the issues are meritless, and an independent review by the court.

In the present case, counsel substantially complied with the above requirements. He has detailed the nature and extent of his review, and he has listed the issues raised in the PCRA petition. While he has not explained why the issues are meritless individually, he has asserted that based upon his review of the record, the issues have been litigated previously or waived and do not constitute a prima facie showing that a miscarriage of justice may have occurred. Cf. Commonwealth v. Harris, 381 Pa.Super. 206, 553 A.2d 428 (1989) (although counsel failed to detail the extent of his review of the record in his petition to withdraw or to list properly the issues the appellant desired to raise, counsel was permitted to withdraw because the defects in the petition prejudiced only administrative interests). Moreover, counsel notified appellant of the filing of the petition to withdraw, supplied him with a copy of the petition, and notified appellant of his right to obtain private counsel, to proceed pro se, and to file a supplemental brief.

On March 11, 1991, appellant filed a pro se supplemental brief in which he addressed the issues delineated in his PCRA petition and requested new counsel if present counsel is permitted to withdraw. However, it is clear that Commonwealth v. Maple, 385 Pa.Super. 14, 559 A.2d 953 (1989), precludes further appointment of counsel.

Appellant raises the following issues for our review: 1) Miranda rights were violated, 2) entrapment, 3) identification, 4) Rule 1100, and 5) sentencing. Applying the Supreme Court’s pronouncement in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), we recently addressed serial petitions under the PCRA in Commonwealth v. Ryan, 394 Pa.Super. 373, 376, 575 A.2d 949, 950-51 (1990), stating:

Initially, we note that since this is appellant’s second petition for post-conviction relief, it “will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Commonwealth v. Lawson, 519 Pa. 504, 513, 549 A.2d 107, 112 (1988); see also Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989) (applying Lawson standard of review to second or subsequent petitions filed under the PCRA). This standard is met if the petitioner can demonstrate either that the proceedings resulting in his conviction were so unfair that a miscarriage of justice which no civilized society can tolerate occurred or that he is innocent of the criminal charges.

Concurrent with our analysis pursuant to Lawson, we must address appellant’s eligibility for relief under the provisions of the Post-Conviction Relief Act. 42 Pa.C.S. § 9543 controls appellant’s eligibility for relief under the PCRA and lists four factors which must be met before such relief may be granted. We examine the third factor first:

(a) General rule. — To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following:
3) That the allegation of error has not been previously litigated and one of the following applies:
(i) The allegation of error has not been waived.
(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(iii) If the allegation of error has been waived, the waiver of the allegation or error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.

42 Pa.C.S. § 9543(a). Since this is appellant’s second PCRA petition, Commonwealth v. Ryan, supra, makes it clear that 42 Pa.C.S. § 9543(a)(1)(iii) does not apply. We stated in Ryan:

In the present case, appellant could have raised all of the issues presented herein in his prior PCHA petition. Accordingly, the issues have been waived under section 9544. The waiver in this instance results from appellant’s failure to raise the issues in his prior post-conviction proceedings. Since the waiver was not during pretrial, trial, post-trial or direct appeal proceedings, section 9543(a)(3)(iii) is not applicable. Accordingly, appellant has waived the issues presented herein unless 9543(a)(3)(ii) applies.

Id., 394 Pa.Super. at 378, 575 A.2d at 951. Thus, we must determine whether 42 Pa.C.S. § 9543(a)(3)(h) applies to the issues raised.

Appellant’s claims that prior counsel were ineffective for failing to raise issues concerning entrapment and identification allege, on their face, that appellant was innocent of the crimes charged. Thus, as to these two issues, appellant has overcome the bar of waiver pursuant to 42 Pa.C.S. § 9543(a)(3)(ii). Furthermore, since the allegations relate to innocence, the Lawson standard is overcome. However, appellant’s claim that his Miranda rights were violated is not an issue which relates to his innocence; thus, it is waived. Similarly, as appellant’s claim that his sentence was excessive is not an issue that relates to appellant’s innocence, it is waived. Finally, appellant’s claim relating to Pa.R.Crim.P. 1100, which he raised in his first PCRA petition and which was disposed of by this court in Commonwealth v. Dukeman, supra, has been litigated previously. 42 Pa.C.S. § 9544. Thus, we may not address this issue herein.

Finally, we determine whether appellant’s remaining two claims, entrapment and identification, are cognizable under § 9543(a)(2) of the PCRA, which also limits appellant’s eligibility for relief. That section provides that a PCRA petitioner must plead that his conviction resulted from one or more of eight circumstances. Section 9543(a)(2)(ii) provides that a PCRA petitioner may be eligible for relief if the conviction resulted from ineffective assistance of counsel which so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. We previously stated that we will overlook the fact that appellant has not framed his issue as having resulted from the ineffective assistance of counsel. See n. 1 supra. We believe that appellant’s claims concerning entrapment and identification facially raise claims that undermine the truth-determining process and thus are cognizable. Commonwealth v. Pitts, 397 Pa.Super. 387, 580 A.2d 352 (1990) (allegation that trial counsel was ineffective for failing to present self-defense and voluntary intoxication defense relates to truth-determining process); see also Commonwealth v. Thomas, 396 Pa.Super. 92, 578 A.2d 422 (1990) (allegation that trial counsel was ineffective for failing to preserve objection to patently inadmissible hearsay implicated reliability of truth-determining process in that hearsay is inherently unreliable and hearsay at issue was a key piece of evidence establishing defendant’s guilt); Commonwealth v. Weinder, 395 Pa.Super. 608, 577 A.2d 1364 (1990) (where alibi evidence was strong and where alibi instructions were incorrect, reliability of truth-determining process was implicated by improper instructions); Commonwealth v. Perlman, 392 Pa.Super. 1, 572 A.2d 2 (1990) (issue concerning the sufficiency of the evidence necessarily implicates the truth-determining process). We conclude, however, that both issues lack merit.

Appellant contends that the police officers were contradictory in their identification of appellant and that the testimony actually established that someone other than appellant sold the cocaine. In order to address this claim, we first must summarize the facts of the case. Robert Bruce, an employee of the Schaad Detective Agency, was working undercover with the Pennsylvania State Police in their investigation of narcotics trafficking in Lancaster County. Bruce previously purchased cocaine from Edgar Cabano, a Hispanic man, who resided on West King Street in Lancaster. Bruce and Cabano also had gone to 221 West Vine Street to obtain the cocaine.

On July 14, 1987, Bruce and Pennsylvania State Trooper Alan Lohman drove to Cabano’s residence on West King Street. Cabano was not there, and a neighbor informed them that he had moved that day. Therefore, Bruce and Lohman proceeded to 221 West Vine Street. Trooper Lohman parked at the rear of the building in order to watch the residence from his automobile, while Bruce approached the back door. A woman answered Bruce’s knock, and Bruce informed her he was looking for a man with whom he previously had dealt at that address. The woman mentioned the name “Jim,” and Bruce pretended to recognize the name. Thereafter, appellant came to the door, and Bruce identified himself as a friend of Cabano. Appellant then agreed to sell Bruce one gram of cocaine for $100.00.

Appellant stated that he had to leave the premises to obtain the cocaine and directed Bruce and Lohman to drive around to the front of the building. They complied, and within ten minutes appellant approached the automobile and handed Bruce a packet later determined to contain cocaine. The men then discussed the possible future purchase of one-eighth ounce, or an eight-ball, of cocaine for approximately $225.00.

The next day Bruce and Lohman returned to 221 West Vine Street with an arrest warrant. They planned to purchase an eight-ball of cocaine. After several conversations, appellant refused to deal directly with Lohman. Appellant then was arrested for the delivery of cocaine on the previous day. A subsequent search revealed that appellant possessed drug paraphernalia.

At trial, Bruce and Lohman positively identified appellant as the man from whom they had purchased cocaine on July 14,1987, and whom they arrested on July 15,1987. Similarly, Corporal Ronald Christopher, who observed the transaction from his parked automobile on West Vine Street, also positively identified appellant as the man he had seen talking with Bruce and Lohman.

Appellant asserts that the different descriptions of appellant given by Bruce and Lohman to Corporal Christopher and in their reports following the drug transaction were contradictory. We find this contention to be without merit for the following reasons. After the July 14,1987 meeting, Bruce described appellant (whose real name he did not know), as a “white Hispanic.” Notes of Testimony (“N.T.”), 1/12/88, at 12. Bruce explained this description as, “Light colored, light facial features, body features.” Id. Trooper Lohman testified that he had advised Corporal Christopher that “the subject did not look Hispanic to me.” Id. at 35. Corporal Christopher, in the application of the arrest warrant and in the criminal complaint, identified appellant as a “white Hispanic male.” Id. at 54. The record establishes that appellant is not of Spanish descent.

Appellant, without explanation, cites Commonwealth v. Bennett, 224 Pa.Super. 238, 303 A.2d 220 (1973). In that case, we stated that when the testimony of witnesses is so contradictory on essential issues as to make any verdict based on it pure conjecture, the jury should not be permitted to consider it. We do not believe Bennett is applicable to this case.

Bruce described appellant to Corporal Christopher as a white Hispanic male, approximately five feet nine inches tall, weighing about 120 pounds, and having short black hair and a moustache. N.T., 1/12/88, at 12, 13, 17-19. Bruce also identified appellant as “Jimmy” based upon what he had been told by the woman who answered his knock at 221 West Vine Street. Id. at 8, 19. Bruce testified that he believed appellant was Hispanic “because I had heard on previous occasions Mr. Dukeman speak Spanish to the dogs that were in the back yard and Edgar Cabano is Hispanic and Edgar said yes he does speak Spanish____” Id. at 12. Bruce further stated that when he described appellant as a “white Hispanic,” he meant “[l]ight colored, light facial features, body features.” Id.

Trooper Lohman, on the other hand, described appellant to Corporal Christopher as a white non-Hispanic male in his thirties, approximately five feet nine inches tall, weighing 120 pounds, having short dark hair and a moustache, and wearing a blue shirt and white trousers. Id. at 35-36, 42.

It is clear that the descriptions given by both witnesses are consistent and were not contradictory. Both witnesses described appellant as having light-colored features with the same physical characteristics. Bruce merely was operating under the misapprehension that appellant was of Spanish origin. Moreover, the subsequent in-court identifications of appellant were clear and unequivocal. Bruce, Trooper Lohman, and Corporal Christopher stated that appellant was the same man involved in the drug transaction on July 14, 1987, and who was arrested the following day. Id. at 16, 21, 36, 50. Therefore, we reject appellant’s claim concerning his identification.

Appellant next asserts that he was entrapped into selling cocaine. The relevant concept is defined at 18 Pa.C.S. § 313:

(a) General rule. — A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of proof. — Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment.

The statute places the burden of proof on the defendant and applies an objective test with regard to police conduct. Commonwealth v. Weiskerger, 520 Pa. 305, 554 A.2d 10 (1989); Commonwealth v. Clapps, 355 Pa.Super. 80, 512 A.2d 1219 (1986).

Our law on entrapment originates from Mr. Justice Frankfurter’s concurring opinion in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). We acknowledged in Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990), that Sherman contains the relevant standard which is as follows:

This does not mean that the police may not act so as to detect those engaged in criminal conduct and ready and willing to commit further crimes should the occasion arise. Such indeed is their obligation. It does mean that in holding out inducements they should act in such a manner as is likely to induce to the commission of crime only these persons and not others who would normally avoid crime____ This test shifts attention from the record and predisposition of the particular defendants to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime.

Sherman v. United States, supra, 356 U.S. at 384-85, 78 S.Ct. at 826, 2 L.Ed.2d at 857 (Frankfurter, J., concurring) (emphasis added).

In support of his claim that he was entrapped, appellant cites the following testimony by Mr. Bruce: “I asked Mr. Dukeman if he would sell it to me without Edgar there. At first he didn’t want to and then when I showed him that I did have money, he agreed to sell it to me.” N.T., 1/12/88, at 10. We fail to see how this testimony establishes the existence of an entrapment defense. It suggests only that initially appellant wanted to deal directly with Edgar Cabano. Based on this testimony, counsel could not be found ineffective for failing to assert a defense of entrapment.

The petition of counsel to withdraw is granted; order denying relief under the PCRA is affirmed.

      . While appellant specifically has not phrased his claims in terms of prior counsels’ ineffectiveness, we will overlook this error in light of his pro se status and due to the fact that on his PCRA petition he checked section II, which asserts the ineffective assistance of counsel.

      . We do not determine that an allegation that Miranda rights were violated never raises an issue that relates to one’s innocence, since a claim that a confession was coerced indeed may raise such an issue. However, that is not the issue raised herein.

      . In addition to having been waived, this issue is not cognizable under the PCRA. Commonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857 (1990) (under PCRA, claim based on the discretionary aspects of sentence is not reviewable); see also Commonwealth v. Grier, 410 Pa.Super. 284, 599 A.2d 993 (1991).

      . In his PCRA petition, appellant asserted that the evidence of the Commonwealth witnesses showed that someone other than appellant sold the cocaine; however, he has abandoned this claim on appeal.

      . Appellant’s other reference to the record similarly is unfounded in suggesting an entrapment defense. He asserts that Corporal Christopher’s testimony that he and his fellow officers were hoping to convince appellant to aid in their drug investigation establishes that appellant was entrapped into selling cocaine. This is absurd.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    605 A.2d 424
    Bryant ALLEN and Debra Allen v. Sharon MERRIWEATHER and Thomas Maltetos and Ford Motor Credit Co. and Travelers Insurance Company. Appeal of Bryant ALLEN.
    Superior Court of Pennsylvania.
    Argued Feb. 5, 1992.
    Filed March 30, 1992.

      Richard J. Hunigman, Philadelphia, for appellant.
    M. Susan Riley, Philadelphia, for appellee Travelers Ins.
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the January 22, 1991 order granting summary judgment in favor of appellee Travelers Insurance Company (“Travelers”). Appellants Bryant and Debra Allen present one issue for our review: whether a husband is entitled to receive first party benefits when he suffers injuries in a motor vehicle accident while operating an uninsured vehicle titled only in his wife’s name. For the reasons that follow, we affirm.

Appellant Bryant Allen was involved in an accident while driving an uninsured vehicle registered only in his wife’s name. On May 8, 1990, appellant filed a complaint against the operator and owner of the other vehicle and against Travelers, an assignee of the Pennsylvania Assigned Claims Plan, seeking first party medical benefits pursuant to the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S.A. § 1701 et seq. Travelers filed an answer and new matter asserting, inter alia, that appellant’s cause of action was barred by his lack of compliance with the MVFRL. Thereafter, appellee filed a motion for summary judgment, alleging that appellant was ineligible under the provisions of 75 Pa.C.S.A. § 1752(a)(3). The trial court granted summary judgment, resulting in this appeal.

Our standard of review of an order granting summary judgment is well-settled. Summary judgment may properly be entered only if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035(b).

The moving party has the burden of persuading the court that no genuine issues exist as to the material facts. Summary judgment may be entered only where the case is free from doubt. Hower v. Whitmak, 371 Pa.Super. 443, 445, 538 A.2d 524, 525, allocatur denied, 522 Pa. 584, 559 A.2d 527 (1988). In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the non-moving party. Any doubt must be resolved against the moving party. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-41, 476 A.2d 928, 930 (1984); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982).

Garcia v. Savage, 402 Pa.Super. 324, 328, 586 A.2d 1375, 1377 (1991) (citing Laventhol & Horwath v. Dependable Insurance Associates, Inc., 396 Pa.Super. 553, 579 A.2d 388, 390 (1990)). We will overturn a trial court’s entry of summary judgment only if there has been an error law or clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988). With these principles in mind, we proceed to examine whether summary judgment was proper.

The relevant provisions of the MVFRL are § 1714 and § 1752. Section 1714, entitled “Ineligible claimants,” states that “an owner of a currently registered motor vehicle who does not have financial responsibility ... cannot recover first party benefits.” Section 1752, entitled “Eligible claimants,” provides:

(a) General Rule. — A person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirements:
(3) Is not an owner of a motor vehicle required to be registered under under Chapter 13 (relating to registration of vehicles).

The trial court granted summary judgment in favor of Travelers because it determined that appellant had a property right in the vehicle and therefore was an “owner” for purposes of the MVFRL.. In determining whether appellant was an owner, the court first looked to the definition of “owner” found in § 102 of the Vehicle Code, 75 Pa.C.8.A., which provides:

A person other than a lienholder, having a property right in or title to a vehicle. The term includes a person entitled to the use and possession of a vehicle subject to a security interest in another person, but excludes a lessee under a lease not intended as security.

Recognizing that the Vehicle Code does not define “property right,” the trial court then turned to the definition of “marital property” contained in Pennsylvania’s Divorce Code. Because the vehicle involved in the accident was acquired during the marriage, the court concluded that appellant Bryant Allen was an “owner,” and therefore was barred from recovery of benefits from the Assigned Claims Plan.

Appellant contends that the trial court erred in determining that he had a property interest in the motor vehicle owned by his wife. The issue of whether one has a property interest in his spouse’s automobile for purposes of the MVFRL was first addressed by this court in Ibarra v. Prudential Property & Cas. Ins. Co., 402 Pa.Super. 27, 585 A.2d 1119 (1991). In Ibarra this court held that an individual who was injured while driving an uninsured vehicle titled and registered solely in her estranged husband’s name was not an owner of the vehicle, nor did she have a property interest in the vehicle. Thus, she was not precluded under § 1714 from recovering first-party benefits under her policy of automobile insurance on a different vehicle. In determining whether the the Ibarra appellant was to be considered an “owner” of the vehicle for purposes of the MVFRL, this court rejected the trial court’s reliance upon the definition of “marital property” found in the Divorce Code. Instead, the court emphasized the fact that prior to the accident, the automobile was permanently located at the husband’s residence, and that the wife did not have regular use of the car, did not have her own set of keys, and was only driving the car to the repair shop at the request of, and as a favor to, her husband.

A later panel of this court determined that Ibarra provided insufficient guidance as to what constituted “ownership,” and, in Bethea v. Pa. Fin. Resp. Assigned Cl., 407 Pa.Super. 57, 595 A.2d 122 (1991), this court clarified the holding in Ibarra. Bethea involved the same factual background and issue that confronts us here, namely whether a spouse who is not estranged from her husband but who resides in the same household is entitled to benefits under the Pennsylvania Assigned Claims Plan.

First, the court in Bethea found that title ownership is not the sole factor governing eligibility for benefits under 75 Pa.C.S.A. § 1752(a)(3). In addition, the court stated that whether the vehicle constituted marital property was only a factor in determining ownership under the MVFRL and would not control the outcome. The court was concerned with the possible unfairness of denying benefits to one with only a tenuous ownership interest in the vehicle. Consequently, the court announced that “an actual cognizable property right in the vehicle as well as de facto indicia of ownership” was required to satisfy § 1714. Id., 407 Pa.Superior Ct. at-, 595 A.2d at 126.

The court in Bethea, however, did not state what constitutes such a cognizable property right or de facto indicia of ownership, because the record was devoid of all evidence of ownership except that the appellant was residing with her husband, the record owner, at the time of the accident. Nevertheless, the Bethea court referred to the factors considered in Ibarra, namely that the vehicle was titled only in appellant’s husband’s name, that she did not use the car with any degree of significant frequency and that appellant and her husband were no longer living together as a marital unit. The Ibarra court considered these factors, in addition to the fact that the wife did not have her own set of keys and was only driving the vehicle to a repair shop as a favor to her husband, in order to reach what it considered to be a fair result. We take guidance from Ibarra and note that those factors which were absent in Ibarra are present here.

First, it is clear that Bryant Allen had a property interest in the vehicle under marital property law. The deposition testimony indicates that the automobile was purchased after the Allens married. Deposition of Bryant Allen, September 24, 1990, at 109. Second, there exists that “additional indicia of control or ownership which would support imputing the obligation to provide financial responsibility under the Act.” Appellant resided with his wife on the date of the accident. N.T. at 108. His wife allowed him to drive the vehicle which he knew was uninsured when he was driving it. N.T. at 109, 27. Furthermore, at the time of the accident, appellant was returning from a personal errand. N.T. at 30. The trial court found that Bryant Allen “enjoyed the use and benefits of the automobile purchased subsequent to his marriage____” Therefore, we conclude that appellant had “an actual cognizable property right in the vehicle as well as de facto indicia of ownership” and therefore find it reasonable to hold appellant responsible under these circumstances for the decision not to secure financial responsibility. Accordingly, we find that appellant was an “owner” for purposes of the MVFRL and that the trial court properly granted summary judgment.

Order affirmed.

JOHNSON, J., concurs in the result.

      . "Marital property” is defined as "all property acquired by either party during the marriage.” 23 Pa.C.S.A. 401(e).


author: MONTEMURO, Judge:

text:
    605 A.2d 427
    COMMONWEALTH of Pennsylvania v. Thomas D. BLAKE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 13, 1992.
    Filed March 23, 1992.

      Mitchell A. Kaufman, Asst. Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before MONTEMURO, HUDOCK and CERCONE, JJ.
   MONTEMURO, Judge:

This is an appeal from a judgment of sentence entered following appellant’s guilty plea on charges of Burglary, Criminal Trespass, Simple Assault, and Possessing Instruments of Crime. The trial court imposed a sentence of seven (7) to fifteen (15) years incarceration solely on the burglary count. Appellant asserts the following two issues on appeal: (1) whether the trial court erred in applying the Deadly Weapon Enhancement provision of the sentencing guidelines, and (2) whether the trial court erred in calculating the appropriate sentence.

On July 15, 1990 at 2:45 a.m., Carol Bruno saw the shadow of the appellant, Thomas D. Blake, entering her bedroom. Appellant punched Mrs. Bruno in the eye as she attempted to awaken her husband. Mr. and Mrs. Bruno chased the appellant, and a fight ensued in the Bruno’s son’s bedroom. In the course of subduing the appellant, Mrs. Bruno was stabbed in the thigh by an open pocket knife that was in appellant’s pocket. Appellant had previously used the knife to cut through a screen door in order to enter the Bruno home. There is no evidence of record that appellant wielded the knife as a weapon, nor is there any description of this knife.

Appellant’s first issue raised on appeal is that the trial court erred in finding that appellant’s use of the knife during the commission of the burglary mandated the application of the deadly weapons enhancement. Appellant asserts that since the knife was only used as a tool to gain access to the victim’s home, the deadly weapon enhancement is inapplicable. The Commonwealth counters that mere possession of a weapon is sufficient to apply the enhancement.

The deadly weapons enhancement provides in pertinent part:

(a) When the court determines that the defendant or an accomplice possessed a deadly weapon, as defined in 18 Pa. C.S.A. § 2301 (relating to definition), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence which would otherwise have been imposed.

42 Pa.C.S.A. § 9721, 204 Pa.Code § 303.4(a).

Since it is undisputed that appellant possessed the knife during commission of the offense, the only issue is whether the pocket knife used in the present case is properly defined as a deadly weapon.

The term deadly weapon for the purposes of the enhancer ment is defined as:

Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.

18 Pa.C.S.A. § 2301.

Our first inquiry is to determine whether the pocket knife was designed as a weapon. If the pocket knife is designed as a weapon, then the mere possession of the knife during the crime is sufficient to apply the deadly weapon enhancement. The word designed is defined as “contrived or taken to be employed for a particular purpose.” Blacks Law Dictionary 533 (4th ed. 1968). Since there is no evidence of record that the pocket knife was extraordinary in any way, we find that there is insufficient evidence to find that it was designed as a weapon. 1 Pa.C.S.A. § 1921(b) (“When the words of a statute are clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit”). To hold otherwise would mandate the application of the weapon enhancement for the commission of any crime while the perpetrator was in possession of nearly any instrument capable of producing serious bodily injury. This result permits an unreasonable interpretation of the phrase, designed as a weapon. Commonwealth v. Gatto, 236 Pa.Super. 92, 344 A.2d 566 (1975) (all statutory law must be given a reasonable interpretation).

Thus, to qualify as a deadly weapon under § 2301, a pocket knife must be a “device or instrumentality which, in the manner which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.” 18 Pa.C.S.A. § 2301. While there is no requirement that the victim actually be in immediate danger of serious injury, the device or instrumentality must be used in a manner that could cause serious bodily injury. See eg. Commonwealth v. Chapman, 365 Pa.Super. 10, 528 A.2d 990 (1987) (straight razor placed at face of victim supported application of deadly weapon enhancement). In the present case, appellant did not use the pocket knife in a manner that could cause death or serious bodily injury. Therefore the deadly weapon enhancement is inapplicable.

Commonwealth counters that under § 9721 possession of a device capable of producing death or serious bodily injury during the commission of a crime is sufficient to apply the deadly weapon enhancement. In support of this contention the Commonwealth notes that this Court has stated that a “requisite intent to use the weapon in the commission of the convicted crime must be apparent from the evidence. The weapon, to be deadly, must be used or intended to be used while the defendant committed the particular crime.” Commonwealth v. McKeithan, 350 Pa.Super. 160, 504 A.2d 294, 301 (1986). The Commonwealth concludes that since appellant used the pocket knife to gain access to the Bruno home, then the knife qualifies as deadly weapon.

However, the McKeithan court did not address the issue presented in the instant case. In McKeithan, the court applied the deadly weapon enhancement where the only evidence that the defendant possessed a weapon was that the victim suffered a severe cut on his neck after a fight with the defendant. The weapon was not seen or found. This court held that the nature of the resulting injury was sufficient evidence to find that the device that caused the injury was used in a manner calculated or likely to produce death or serious bodily injury. McKeithan does not support the Commonwealth position that the manner of use is irrelevant. Therefore, under the present facts, the trial court erred in finding that the pocket knife was a deadly weapon.

Accordingly, we remand for resentencing for the trial court to properly apply the sentencing guidelines without the weapon enhancement. Commonwealth v. McMullen, 365 Pa.Super. 556, 530 A.2d 450 (1987).

Judgment of sentence vacated. Remand for resentencing. Jurisdiction relinquished.

      . We do not hold that a pocket knife can never be considered to be designed as a weapon under all circumstances. However, in the present case, the prosecution does not provide a description of the size and shape of the knife or blade to enable the court to make a determination. See Annot. 100 A.L.R.3d 287 (discussing whether a pocket knife is a deadly weapon).

      . The unfortunate fact that Mrs. Bruno was injured as a result of subduing the appellant does not alter the fact that the Commonwealth failed to produce any evidence that the knife was ever taken out of appellant’s pocket and used as weapon.

      . We do note that mere possession is sufficient for any firearm whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury. However, since the pocket knife in the present case was not designed as a weapon, the manner of use is critical to the determination of whether the knife meets the definition of a deadly weapon.


author: DEL SOLE, Judge:

text:
    605 A.2d 429
    COMMONWEALTH of Pennsylvania v. William BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed March 31, 1992.

      David Crowley, Bellefonte, for appellant.
    Mark S. Smith, Asst. Dist. Atty., Bellefonte, for Commonwealth, appellee.
    Before DEL SOLE, HUDOCK and HOFFMAN, JJ.
   DEL SOLE, Judge:

This appeal is from a Judgment of Sentence imposed following the conviction of Appellant, William Brown, of Aggravated Assault, Assault by Prisoner, Simple Assault and Recklessly Endangering Another Person. Appellant was sentenced to a total period of confinement of ten to twenty years. Finding no abuse of discretion, we affirm.

Appellant was serving a sentence on an unrelated matter at the State Correctional Institution at Rockview when he was diagnosed by a physician at the institution as a chronic carrier of the Hepatitis “B” virus and the HIV1 virus. On the evening of November 16, 1988, Corrections Officer Allan Hepner was working in the Restricted Housing Unit, where Appellant resided. As Officer Hepner approached the “range” which contained Appellant’s cell, he heard commotion coming from one of the cells. When the officer came to Appellant’s cell, the other inmate who had been yelling suddenly ceased. Officer Hepner turned to face Appellant’s cell, and was then hit in the face with a warm, foul-smelling liquid substance which had been thrown through the food slot in Appellant’s cell. Appellant came to stand directly in front of Officer Hepner, accusing Hepner of tampering with his mail. Officer Hepner, knowing that Appellant was HIV positive, and also knowing that the substance which had hit him in the face had the odor and consistency of feces, immediately attempted to spit it out of his mouth. Being especially concerned because he wore dentures and chewed snuff, and consequently had open abrasions in his mouth, Officer Hepner went to the Dispensary, where he was able to gargle and rinse his mouth, shower, and get a change of clothes. He was tested the next day for presence of the HIV virus. Various health care personnel testified and confirmed at trial that the substance with which Officer Hepner was hit did indeed contain fecal matter. When confronted immediately following the incident, Appellant proceeded to empty two more cups of the same liquid into the commode in his cell. In response to the prison guard Captain’s question, “why he had done this,” Appellant replied that Officer Hepner was “messing with [his] mail” and that he kept such cups of fecal liquid in his cell in case the other inmates gave him trouble.

Appellant was charged with Criminal Attempt-Criminal Homicide Aggravated Assault, Assault by Prisoner, Simple Assault and Harassment. Following the preliminary hearing, Appellant was held for court; thereafter, Appellant filed a Petition for Writ of Habeas Corpus, which was denied. Following the close of the Commonwealth’s evidence at trial, Appellant demurred to the evidence and the demurrer was denied. Appellant later moved for a directed verdict, which was denied. The jury found Appellant guilty of Aggravated Assault, Assault by Prisoner, Simple Assault, and Recklessly Endangering Another Person. Appellant filed a Motion for New Trial and in Arrest of Judgment, which was denied. Appellant was sentenced to ten to twenty years imprisonment, to run consecutively to the sentence he was serving at the time of the incident. Appellant filed a timely Motion to Modify Sentence, which was denied. This appeal was then brought.

Appellant’s sole claim on appeal is that the evidence is insufficient to sustain his convictions when the victim sustained no bodily injury as a result of the encounter. In determining whether the evidence is sufficient to support a conviction, we accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Crawford, 334 Pa.Super. 630, 483 A.2d 916 (1984); Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989).

Appellant specifically asserts that the intent element has not been met in regard to his conviction for Aggravated Assault. Where, as in the instant case, the victim has not sustained any serious bodily injury, the Commonwealth is required to prove specific intent to inflict serious bodily injury. Commonwealth v. Magnelli, 348 Pa.Super. 345, 502 A.2d 241 (1985). We find that based on the facts as set forth in the record, there was sufficient evidence for the factfinder to conclude that Appellant indeed intended to inflict serious bodily injury upon Officer Hepner. Appellant had been counseled by both a physician and a nurse concerning the fact that he had tested positive for both the HIV and Hepatitis B viruses and had been informed regarding the transmission of HIV through bodily fluids. (N.T., August 19, 1986, pp. 18-19, 27-28.) Therefore, the evidence is sufficient to support Appellant’s conviction for Aggravated Assault.

In regard to Appellant’s convictions for Assault by Prisoner, Simple Assault, and Recklessly Endangering Another Person, we find that Appellant’s act of flinging fecal matter into the face of a prison guard, when Appellant had knowledge that he was a chronic carrier of the aforementioned viruses, constitutes an assault by a means or force likely to produce serious bodily injury. 18 Pa.C.S.A. § 2703. Thus, there is sufficient evidence to support Appellant’s conviction for Assault by Prisoner. Additionally, these same acts also demonstrate the “conscious disregard of risk” which supports Appellant’s conviction for Recklessly Endangering Another Person. 18 Pa.C.S.A. § 2705. See Commonwealth v. Henck, 329 Pa.Super. 275, 478 A.2d 465 (1984). Finally, the conviction for Simple Assault, being a lesser included offense, is supported by the same facts which support Appellant’s other convictions, since the elemerits of Simple Assault are necessarily included in the other offenses and merge with them for sentencing purposes. 18 Pa.C.S.A. § 2701; Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 420 A.2d 674 (1980). Therefore, we find that there is sufficient evidence from which the fact finder could conclude that each element of the offenses with which Appellant was charged has been proven beyond a reasonable doubt. Accordingly, we affirm.

Judgment of Sentence affirmed.


author: ROWLEY, President Judge.

text:
    605 A.2d 432
    COMMONWEALTH of Pennsylvania v. Denise GLASS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Peb. 3, 1992.
    Filed April 2, 1992.

      Francis M. Socha, Harrisburg, for appellant.
    Deborah E. Curcillo, Asst. Dist. Atty., Harrisburg, for Com., for appellee.
    Before ROWLEY, President Judge and FORD ELLIOTT and BROSKY, JJ.
   ROWLEY, President Judge.

On April 21, 1989, Denise Glass (appellant), then seventeen years of age, was charged with murder in connection with the death of her three-week-old baby. Hearings were held on June 13, 1989, and July 29, 1989, to consider appellant’s motion to transfer her case to juvenile court. After the trial court denied the motion, appellant entered a guilty plea to a charge of third-degree murder. The trial court sentenced appellant to a period of incarceration of seven and one-half to twenty years. After appellant’s motion to modify sentence was denied, she filed a direct appeal from the judgment of sentence to this Court, and this Court affirmed.

On May 9,1991, appellant filed a pro se petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq. After counsel was appointed, she filed a supplemental petition, alleging ineffectiveness of counsel in failing to challenge on appeal the trial court’s denial of appellant's motion to transfer her case to juvenile court. Appellant now appeals from the dismissal of her PCRA petition.

In Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744 (1990), our Supreme Court set forth the following standard for reviewing an ineffectiveness of counsel claim:

[W]e must first determine whether the issue underlying the claim is of arguable merit. If the claim lacks merit, our inquiry ceases, as counsel will not be deemed ineffective for failing to pursue a baseless or meritless issue. If, however, the claim has merit, we must then determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Finally, appellant must show that counsel’s ineffectiveness so prejudiced his case that he was denied a fair trial.

Id., 525 Pa. at 344, 580 A.2d at 748 (citations omitted). In the present case, the trial court applied this standard and concluded that appellant’s counsel was not ineffective. For the following reasons, we need not determine whether counsel was in fact ineffective. Even assuming that appellant sufficiently proved ineffectiveness under the above test, she would not be entitled to relief.

Under the PCRA, unlike its predecessor, the Post Conviction Hearing Act, a claim of ineffectiveness of counsel is cognizable only if the ineffective assistance “in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Id. § 9543(a)(2)(h). Since the amendment of the post-conviction statute, this Court has considered various claims of ineffectiveness of counsel, and only those claims involving alleged errors which undermined the truth-determining process have been found to be cognizable. Compare Commonwealth v. Thomas, 396 Pa.Super. 92, 578 A.2d 422 (1990) (admission of hearsay statements) and Commonwealth v. Weinder, 395 Pa.Super. 608, 577 A.2d 1364 (1990) (inadequate alibi instruction) and Commonwealth v. Perlman, 392 Pa.Super. 1, 572 A.2d 2 (1990) (sufficiency of the evidence) with Commonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857 (1990) (discretionary aspects of sentence) and Common wealth v. Lyons, 390 Pa.Super. 464, 568 A.2d 1266 (1989) (absence of preliminary hearing), allocatur denied, 525 Pa. 663, 583 A.2d 792 (1990) and Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989) (violation of Rule 1100). “This [amendment] is a substantial restriction of the grounds for post-conviction collateral relief in Pennsylvania.” Commonwealth v. Hanes, 397 Pa.Super. 38, 44-45, 579 A.2d 920, 923 (1990) (quoting Commonwealth v. Thomas, supra, 396 Pa.Superior Ct. at 98, 578 A.2d at 425).

In the present case, appellant contends that counsel was ineffective for failing to appeal the denial of her motion to transfer her case to juvenile court. Her basis for this allegation is that the trial court abused its discretion in denying her motion because her “witnesses established] a realistic opportunity for rehabilitation prior to the expiration of the juvenile court jurisdiction and [that she] would receive better treatment, supervision and rehabilitation in the juvenile system as opposed to the adult system.” Supplemental PCRA Petition at 3. This claim does not implicate the integrity of the truth-determining process, and the reliability of the adjudication of guilt was not compromised. We therefore affirm the order dismissing appellant's PCRA petition.

Order affirmed.


author: CIRILLO, Judge: MONTGOMERY, Judge,

text:
    605 A.2d 799
    COMMONWEALTH of Pennsylvania, Appellee, v. Leigh Beth STUBBLEFIELD, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1991.
    Filed Feb. 10, 1992.
    Reargument Denied April 16, 1992.

      Sally Frick, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before WIEAND, CIRILLO and MONTGOMERY, JJ.
   CIRILLO, Judge:

Leigh Beth Stubblefield appeals from a judgment of sentence entered in the Court of Common Pleas of Allegheny County. We affirm.

Leigh Beth Stubblefield was arrested and charged with violating the Controlled Substance, Drug, Device and Cosmetic Act: Possession with Intent to Deliver (cocaine) at Count I and Criminal Conspiracy at Count II. Following the denial of an omnibus pretrial motion, which included a motion to suppress evidence, Stubblefield was tried before the Honorable Jeffrey A. Manning and convicted of possession of cocaine with intent to deliver. Post-trial motions were filed and denied, and Stubblefield was sentenced to a term of incarceration of not less than four years nor more than eight years, and to pay a fine of $25,000. This timely appeal followed.

On February 10, 1989 Agent Lawrence R. Shoup of the Pennsylvania Attorney General’s Bureau of Narcotics Investigation, and Detectives Dean Kaminski and James Hasara of the Allegheny County Police were working at Pittsburgh International Airport as part of a drug interdiction team. As the three detectives were observing travelers disembarking from a flight from Philadelphia, they noticed a black male, later identified as Bruce Harvin, exit the plane. Agent Shoup testified that the only thing unusual about Harvin at that point was that he was wearing dark sunglasses inside the airport on an overcast day. A black female, later identified as Stubblefield, exited the plane behind him. Stubblefield was walking behind Harvin at a distance of approximately 15 to 20 feet. As the detectives watched all the passengers walk through the corridor, Agent Shoup heard Harvin call out to Stubblefield. Stubblefield had turned into a dead end corridor and Harvin, who was walking ahead, stopped, turned, and said, “Miss, Miss, I think it’s up this way.” Stubblefield did not verbally respond, but again started following Harvin at a distance of approximately 10 to 15 feet.

At this point Agent Shoup decided that something was strange in the manner in which Stubblefield and Harvin were conducting themselves and he mentioned his observation to Detectives Kaminski and Hasara. The detectives agreed, and the three of them began following Harvin and Stubblefield for further observation. Shortly ahead the corridor divided. Harvin stopped and Stubblefield caught up to him. They talked briefly. Then Harvin went into the men’s restroom and Stubblefield began walking towards the exit. Detective Hasara remained to continue surveillance of Harvin while Agent Shoup and Detective Kaminski followed Stubblefield past an airport security checkpoint.

Immediately past the security checkpoint Agent Shoup and Detective Kaminski approached Stubblefield, identified themselves and asked to speak with her. She agreed. Agent Shoup asked about her flight itinerary and Stubble-field responded that the flight had arrived from Florida with a connection in Philadelphia. However, when asked, Stubblefield could not recall the name of the city she had visited in Florida. Although she had arrived in Florida on February 9, the previous day, ostensibly to visit her boyr friend, Bruce, Stubblefield did not know her boyfriend’s last name. She did admit that he was the man who called her “Miss” in the airport corridor and had later stopped to talk with her. When asked if she had her airline ticket, without even checking her purse or pockets, Stubblefield immediately stated that she had lost it. In response to Agent Shoup’s inquiries about her luggage she said that she had also lost that. Agent Shoup next suggested that they move to the vacant British Airways counter nearby which was away from the pedestrian traffic. Stubblefield followed Agent Shoup over to the counter.

At the ticket counter Shoup asked Stubblefield for identification. She produced a voter’s registration card, a welfare card and a Pennsylvania driver’s learner’s permit — all of which identified her as Leigh Beth Stubblefield. Agent Shoup returned the identification to her and asked her to sign a consent-to-search form. He showed her the form which he carried as part of his work on the drug interdiction team. Stubblefield looked over the form and answered “Well, if I don’t have to, I’d rather not.” Agent Shoup testified that he responded “Okay. You don’t have to. That’s right.” Stubblefield then told Shoup that she wanted to locate her luggage and her boyfriend, Bruce. Shoup informed her that the baggage claim was located downstairs and added, “If you want, we could walk down that way.” Stubblefield did not object. The two of them made their way to the baggage claim area where the following exchange took place:

Stubblefield: Well, I have to go to the bathroom.
Shoup: Oh, you do.
Stubblefield: Yeah. Do you have a lady or someone to go in there with me?
Shoup: Okay. We can do that.

Agent Shoup enlisted the aid of two female security officers who accompanied Stubblefield into the restroom. Later, in the corridor, one of the security officers, Pat Remaley, told Agent Shoup that as Stubblefield was using the restroom facilities, it appeared as if she was trying to conceal something on her person. Upon hearing this Agent Shoup approached Stubblefield, who was with Detective Kaminski, and requested that she accompany him to the police office in the airport. Stubblefield agreed. In the police office Agent Shoup asked Stubblefield for permission to allow a female security officer to conduct a search of her person and her baggage. Stubblefield refused. Shoup requested that she wait while he typed a search warrant to present before a district justice. Stubblefield agreed and Shoup permitted her to make some phone calls while she waited. Shoup testified that he never indicated to Stubble-field that she was not free to leave at any time.

Detective Kaminski, who had left the office to locate Detective Hasara, returned and informed Shoup that Detective Hasara had questioned Harvin. Harvin had denied traveling with Stubblefield. Stubblefield indicated that she wanted to speak privately with Agent Shoup. Agent Shoup told her that Police Officer Justine Start, who had replaced the female security officers, would have to remain. Stubblefield responded, “I think I got what you want.” Shoup immediately read her the Miranda warnings. Then Shoup asked Stubblefield what she was talking about, but she did not elaborate. Instead, Stubblefield indicated that Shoup did not have to go through with the search warrant. He told her he would finish typing the warrant and they would let a district justice determine whether she should be searched. As Agent Shoup was completing the paperwork, Stubblefield again indicated that Shoup did not need to obtain a search warrant. She also repeated, “I think I got what you want.” Agent Shoup declined to perform a consent search at that time. Later, when Agent Shoup had completed the warrant, he stepped out of the office to confer with the detectives. As he looked back into the office he saw Stubblefield hand a package wrapped in brown paper to Officer Start. The package was later determined to contain approximately a kilo of cocaine. Officer Start told Agent Shoup that Stubblefield had removed the package from a girdle under her sweater. Stubblefield was immediately placed under arrest and was again given the Miranda warnings. She was also given a waiver of rights card which she signed.

On appeal Stubblefield presents two issues for our review:

(1) Was the Appellant illegally detained and seized by the officers during an airport stop without sufficient information to support a finding of reasonable suspicion or probable cause to arrest.
(2) The Pennsylvania Constitution requires that investigating agents advise individuals who are the subject of airport investigatory stops/detentions that those persons have the right to refuse to speak or to consent to a search and/or to accompany the agents.

Regarding our standard of review, the Supreme Court of Pennsylvania in Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985), stated:

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

507 Pa. at 532, 491 A.2d at 112 (emphasis added). The determination of whether probable cause or reasonable suspicion of criminal activity exists is a legal conclusion to be drawn from the facts as found by the suppression court. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

The Fourth Amendment to the United States Constitution and Article 1, § 8 of the Pennsylvania Constitution guarantee the right of individuals to be protected from unlawful governmental searches and seizures. The United States Supreme Court in Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), quoting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), explained that not all interactions between the police and citizens involve seizures of persons. Only when the police have restrained the liberty of a person by a show of authority or physical force may we conclude that a seizure has occurred. 486 U.S. at 573, 108 S.Ct. at 1979. An evaluation as to whether a seizure has occurred must be viewed in light of all the circumstances and whether a reasonable person in those circumstances would have believed he or she was free to leave. 486 U.S. at 572, 108 S.Ct. at 1978.

A close reading of the record establishes that Stubblefield was not illegally detained and, as such, there was no seizure of her person in the present case. The police identified themselves and requested to speak to Stubblefield in the airport corridor, a public place. She voluntarily answered their questions. There is no evidence that she was restrained by either a show of authority or physical force. Thus, there was no seizure of her person during the preliminary encounter. See Commonwealth v. Lidge, 399 Pa.Super. 360, 582 A.2d 383 (1990).

In Commonwealth v. Douglass, 372 Pa.Super. 227, 539 A.2d 412 (1986), allocatur denied, 520 Pa. 595, 552 A.2d 250 (1988), this court described the circumstances under which an individual is required to respond to questions posed by police.

A police encounter with a suspect may be properly characterized as a mere encounter, an investigative detention, a custodial detention, or a formal arrest. A “mere encounter” (or request for information) need not be supported by any level of suspicion, but it carries no official compulsion to stop or respond. An “investigative detention” must be supported by reasonable suspicion; it subjects the suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest, (citations omitted).

372 Pa.Super. at 238-39, 539 A.2d at 417-18.

When Agent Shoup approached Stubblefield and inquired about her flight in a conversational tone it was a mere encounter. Agent Shoup was requesting information and Stubblefield was under no obligation to stop or respond. Id. The incident with the police at the airport began as a mere encounter and evolved into an investigative detention based upon the detectives’ reasonable suspicions of criminal activity. Id. During the initial encounter between the police and Stubblefield the police were not required to possess a reasonable suspicion that Stubblefield had committed a crime in order to question her. Id. “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual ... in [a] public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen ...” Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983). During the consensual questioning of Stubblefield in the airport corridor the police became reasonably suspicious of criminal activity as the result of her responses. When Agent Shoup directed Stubblefield over to the ticket counter for further questioning as a result of his reasonable suspicions the mere encounter developed into an investigative stop or detention. Douglass, supra.

In order to evaluate the validity of an investigative stop or detention we must first determine whether the law enforcement officials’ actions were justified from the beginning. To be justified the officials must have had reasonable suspicion that a crime had been, or was about to be, committed. “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors— quantity and quality — are considered in the ‘totality of the circumstances — the whole picture,’ that must be taken into account when evaluating whether there is reasonable suspicion.” (citations omitted). Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 309 (1990).

Agent Shoup has been in narcotics investigations for approximately seven years. Through his professional experience as a member of the drug interdiction team he has become familiar with certain patterns of behavior often associated with illicit drug activity. Shoup learned upon questioning Stubblefield that she had lost both her airline ticket and her luggage, that she was unaware of her location while in Florida, and that she did not know her boyfriend and traveling companion’s last name. In addition, it appeared to the members of the drug interdiction team that Harvin and Stubblefield were attempting to conceal the fact that they were traveling together. Finally, Stubblefield’s brief stay in Florida, a source city, is consistent with the drug courier profile. When questioned, Stubblefield admitted that Harvin was her boyfriend and that they were traveling together from Florida. It was the totality of these circumstances during the mere encounter between the police and Stubblefield that caused the police to grow reasonably suspicious of criminal activity, warranting an investigative detention which resulted in Stubblefield admitting to possession of a package of cocaine on her person. Douglass, supra. The factual findings are supported by the record, and the suppression court’s conclusion that Stubblefield was not illegally detained was proper. Cortez, supra.

Stubblefield next argues that the Pennsylvania Constitution requires law enforcement officials to affirmatively advise any suspect who is the subject of an airport investigatory stop or detention that he or she is not required to cooperate and may refuse to speak with them. She further argues that officials who fail to do so, such as Agent Shoup, risk having the incident viewed as an illegal detention. This contention has no merit. Stubblefield’s initial encounter with the police was a mere encounter, Douglass, supra, and did not require the police to inform her that she did not have to cooperate. The record reveals that Agent Shoup and the detectives never indicated in any manner that Stubblefield was not free to terminate the questioning and vacate the area.

Moreover, when the mere encounter yielded sufficient reasonable suspicion to justify an investigative stop, Agent Shoup promptly requested that Stubblefield sign a consent to search form, but she stated that she really did not want to sign it. Agent Shoup also informed Stubblefield that she did not have to sign the consent to search form. We reiterate what this court stated in an earlier decision:

... it must be recognized that the Commonwealth need not demonstrate that the consenter was aware of his right to refuse consent [to a search].

Commonwealth v. Woods, 240 Pa.Super. 72, 76, 368 A.2d 304 (1976) (emphasis added).

We conclude, therefore, in light of the foregoing that Stubblefield was not illegally detained and that the police were under no obligation to affirmatively inform her that she had a right not to cooperate.

We affirm the judgment of sentence.

MONTGOMERY, J., files a dissenting statement.

MONTGOMERY, Judge,

dissenting:

I must respectfully dissent. In my view, the police did not have a reasonable suspicion of criminal activity and their actions constituted a seizure, rather than a mere encounter.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that police officers may detain a person to investigate suspicious circumstances on less than probable cause. In order to do so, however, the officer must observe unusual and suspicious conduct, which leads the officer to reasonably believe that criminal activity is afoot. Id.

On the facts presented to the trial court, I cannot conclude that there is any unusual and suspicious conduct present here which would justify a Terry stop. In Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), the Georgia Court of Appeals reversed a suppression order, holding that the DEA agent's stop of Reid was valid because: (1) Reid had arrived from Fort Lauderdale, which the agent testified was a source city for cocaine; (2) Reid arrived in the early morning, when law enforcement activity is diminished; (3) Reid and his companion appeared to the agent to be trying to conceal the fact that they were traveling together; and (4) Reid had no luggage other than a shoulder bag. The Supreme Court, in reversing, concluded that as a matter of law the agent could not have reasonably suspected criminal activity on these circumstances. The Court found that nearly all the circumstances relied on by the lower court “describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures” if the Court were to find the stop valid. Id. at 441,100 S.Ct. at 2754. I believe the same is true in the present case.

Furthermore, I cannot agree that the actions of the police established only a “mere encounter” rather than a “seizure.” In Fourth Amendment terms, even a brief detention short of traditional arrest constitutes a seizure of the person and must be reasonable. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Terry defines a seizure as a police officer accosting an individual and restraining that individual’s freedom to walk away. The restraint need not be by physical force but may also be by show of authority, for example the threatening presence of several officers or the use of language or tone of voice indicating that compliance with the officer’s request is required. Id.; United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The question is whether, in view of all of the surrounding circumstances, a reasonable person would have believed that he was not free to leave. Id.

In the instant case, the officers’ actions went far beyond the mere encounter described in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Officers Shoup and Kaminski flanked appellant, one on each side of her, as she walked through the airport, requested identification and information, and refused to leave appellant’s side even after she had produced identification and refused the officers’ request to consent to a search. Had this been a “mere encounter,” appellant’s production of identification and her refusal to consent to a search would have terminated the officers’ right to proceed further. Id. Instead, the officers continued to follow appellant through the airport, one on either side of her, and continued to interrogate her. Whenever appellant sought to leave, the officers simply continued to accompany her. Appellant was not even permitted to use the bathroom in privacy, Officer Shoup having recruited two female security guards to accompany and observe appellant as she used the toilet. In view of all of these circumstances, I cannot conclude that a reasonable person would have believed he or she was free to leave.

In my view, appellant was “seized” within the meaning of the Fourth Amendment at least as early as when she first refused to consent to a search and the officers did not allow her to continue through the airport unimpeded and unaccompanied. At this time, the officers did not have sufficient specific and articulable facts to support a suspicion of criminal activity. I would, therefore, reverse the order denying suppression, vacate the judgment of sentence and grant appellant a new trial.

      . 35 Pa.S. § 780-113(a)(30).

      . 18 Pa.C.S. 903(a)(1).

      . The trial court sustained Defendant's demurrer to the charge of criminal conspiracy.

      . The fine was imposed pursuant to 18 Pa.C.S. § 7508.

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

      . This court considered the propriety of an investigatory stop of an individual on the driveway of his private residence in Commonwealth v. Ogborne, 384 Pa.Super. 604, 559 A.2d 931 (1989) (Tamilia, J., dissenting), reargument denied, July 10, 1989. Although our supreme court initially granted allocatur, Commonwealth v. Ogborne, 524 Pa. 626, 574 A.2d 68 (1990), the appeal was later dismissed as improvidently granted, Commonwealth v. Ogborne, 525 Pa. 570, 583 A.2d 789 (1991). The United States Supreme Court granted certiorari, vacated judgment, and remanded to our court for further consideration in light of Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). The panel (Cavanaugh, Tamilia and Popovich, JJ.) filed its revised opinion on October 21, 1991, affirming the judgment of sentence (Popovich, J. dissenting).
      In Ogbome, based on a tip from a reliable informant, the police conducted an investigatory stop of an individual in his private driveway. The appellant was known to the police to deal in drugs, and the informant described the car appellant would be driving, his destination, his approximate time of arrival and the type and approximate quantity of drugs he would be carrying.- In short, the informant, whose veracity was known to the police, detailed future activity not generally known to the public, as required by Alabama v. White, supra. This court found the totality of circumstances in Ogbome, which provided the officers with reasonable suspicion to conduct the investigatory stop, to be similar to those in White, and affirmed the conviction on that basis.

      . The drug courier profile, developed by Drug Enforcement Administrator Special Agent Paul Markonni, is used to determine whether a particular traveler shows traits or characteristics common to drug traffickers. The profile traits can in certain circumstances be used to support a finding of reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).


text:
    605 A.2d 805
    COMMONWEALTH of Pennsylvania v. Curtis Alan WANNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1991.
    Filed Feb. 13, 1992.
    Reargument Denied April 30, 1992.

      David Eshelman, Reading, for appellant.
    David P. Wingert, Asst. Dist. Atty., Lebanon, for the Com., appellee.
    Before ROWLEY, President Judge, and CERCOME and MONTEMURO, JJ.
   ROWLEY, President Judge.

Curtis Alan Wanner directly appeals from the judgment of sentence entered against him in the Court of Common Pleas of Lebanon County in this criminal action. Appellant raises several issues for our review: (1) whether the trial court lacked sufficient evidence to sustain appellant’s convictions for driving under the influence of alcohol and homicide by vehicle while driving under the influence; (2) whether the court erred in instructing the jury that any violation of the vehicle code, without more, can sustain a homicide by vehicle conviction; (3) whether the trial court erred in failing to suppress appellant’s inculpatory statements; (4) whether the trial court erred in instructing the jury that whole blood results are not required under the Pennsylvania drunk driving statute; (5) whether the court improperly refused to grant and read appellant’s points for charge; (6) whether the trial court erred in failing to suppress appellant’s alleged blood alcohol content as the test was performed on plasma and not on whole blood; (7) whether the verdicts are against the weight of the evidence; and (8) whether the trial court imposed an illegal sentence. We have considered appellant’s issues, and we conclude that the trial court lacked sufficient evidence to convict appellant of driving under the influence of alcohol or of homicide by vehicle while driving under the influence. Accordingly, we now arrest judgment on these convictions. Additionally, we conclude that the trial court did not properly charge the jury as to the proper mens rea for homicide by vehicle, and we vacate that conviction and remand for a new trial.

The facts of the case are as follows: Appellant was involved in an automobile accident on August 6, 1989, in Lebanon County. Appellant was allegedly driving on the wrong side of the road when his car collided with another car. The driver of the other vehicle died as a result of the crash. Appellant was taken to M.S. Hershey Medical Center to receive treatment for his injuries, and hospital personnel conducted a medical trauma plasma blood test which resulted in a blood alcohol reading of .136%.

Appellant was subsequently charged with involuntary manslaughter, driving under the influence of alcohol or a controlled substance, homicide by vehicle while driving under the influence, and homicide by vehicle. Appellant was also charged with summary offenses in violation of the vehicle code’s guidelines for driving on roadways laned for traffic, driving vehicle at safe speed, reckless driving, and restraint system. Appellant filed a pretrial suppression motion, which the trial court denied after two hearings. Following a jury trial, appellant was convicted of driving under the influence of alcohol, homicide by vehicle, and homicide by vehicle while driving under the influence. The Honorable G. Thomas Gates also found that appellant committed a summary offense in violation of the statutory guidelines for driving on roadways laned for traffic. The court en banc denied appellant’s timely filed post-verdict motions. Appellant received the following concurrent sentences: 3-6 years imprisonment plus a $100.00 fine for the homicide by vehicle while driving under the influence conviction, 1-2 years imprisonment for the homicide by vehicle conviction, 48 hours to 2 years imprisonment for the driving under the influence conviction, and a $35.00 fine for the summary violation. Appellant filed this timely appeal.

In his first issue, appellant argues that the trial court lacked sufficient evidence to support his conviction under 75 Pa.C.S.A. § 3731(a)(4). We are limited to a well-established standard of review when addressing sufficiency claims:

In reviewing the sufficiency of the evidence, we must review the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence.

Commonwealth v. Taylor, 324 Pa.Super. 420, 424-425, 471 A.2d 1228, 1229-1230 (1984) (citations omitted).

Appellant argues that the Commonwealth did not present evidence sufficient to prove beyond a reasonable doubt that his blood alcohol content was 0.10% or greater. 75 Pa. C.S.A. § 3731(a)(4) reads as follows:

§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

In order to obtain a conviction under this statute, the Commonwealth must prove two elements: (1) that the accused was driving, operating or in control of a vehicle, and (2) that the accused had an amount of alcohol in the blood that was equal to or greater than 0.10% by weight. Commonwealth v. Labelle, 397 Pa.Super. 179, 579 A.2d 1315 (1990) (en banc). We conclude that the Commonwealth did not present the fact finder with sufficient evidence to prove appellant’s blood alcohol content.

The Commonwealth presented a .136% blood alcohol count as evidence of appellant’s intoxication. The test which produced this reading was not performed on whole blood. Rather, a review of the record shows that the hospital performed a test on the blood plasma. “Plasma” is defined as “the fluid portion of blood in which particulate components are suspended.” The components consist of red corpuscles, white corpuscles and platelets. These components are separated from the blood until only the liquid portion remains. This liquid portion, with the components removed, is the plasma on which the medical blood tests are performed. When a blood test is performed specifically for legal analysis, the test is performed on whole blood. “Whole blood” is defined as “blood from which none of the elements have been removed.”

Our Court recently addressed a similar issue in Commonwealth v. Bartolacci,. 409 Pa.Super. 456, 598 A.2d 287 (1990). The Court in Bartolacci reversed appellant’s conviction on different grounds, but stated the following about tests conducted on blood serum versus tests on whole blood. statute which addresses blood alcohol content makes it an offense for a person to operate a vehicle while ‘the amount of alcohol by weight in the blood of the person is 0.10% or greater.’ ” 75 Pa.C.S.A. § 3731(a)(4). The witness testified that a reference to the amount of alcohol in blood by weight refers to whole blood.

The Commonwealth in an effort to prove that (decedent’s) death was caused by Appellant driving with a blood alcohol content of .10% or greater offered expert testimony based upon blood tests performed after the accident. It became apparent during cross-examination that the testing of Appellant’s blood was a test performed on serum rather than whole blood. The manager of the toxicology section of the Allegheny County Department of Laboratories testified that serum is acquired after a whole blood sample is centrifuged and the top liquid residue is removed. This witness also testified that when serum blood is tested the results will show a blood alcohol content which can range from between 10 to 20 percent higher than a test performed on whole blood. “The

While our statutes do not dictate in. what form blood must be tested, only evidence of the amount of alcohol by weight in the person’s blood can support a conviction based upon a violation of § 3731. Where a test is performed on blood serum rather than whole blood, the fact finder must be informed of this and must be provided with evidence of the alcohol by weight in the defendant’s blood in order to properly sustain a conviction based upon a violation of § 3731. Evidence offered of a reading based upon a test of blood serum, without conversion, will not suffice.

In this case during cross examination the jury was informed through expert testimony that the blood alcohol test performed on Appellant’s blood serum after the accident yielded a result of .156%. In an effort to determine that the death in this case was a “direct result” of Appellant’s violation of § 3731(a)(4), the Commonwealth’s expert also testified regarding Appellant’s blood alcohol level related back at the time of the accident. The expert took into account what he found to be appropriate amounts for the absorption of alcohol consumed shortly prior to the accident, and arrived at a figure of .138%. The jury was also advised through cross examination of the need to convert this figure to determine the alcohol by weight in Appellant’s blood. The expert opined that a 15% conversion rate would be appropriate. From this testimony the jury was free to conclude that Appellant’s whole blood alcohol content at the time of the accident exceeded .10%. Although the jury was provided information from which to determine Appellant’s blood alcohol level, we caution the Commonwealth that a conviction based upon a violation of § 3731(a)(4) will not be upheld absent clear evidence that the alcohol in a defendant’s blood is .10% or greater and that evidence of test results based solely on blood serum will not suffice to sustain a conviction.

Id., 409 Pa.Superior Ct. at 458-459, 598 A.2d at 288.

A comprehensive review of the record shows that the Commonwealth did not produce any evidence that would allow the fact finder to convert the result of the plasma test into an amount of alcohol by weight in the whole blood. As the statute requires a “whole blood” analysis, we see no reason to distinguish a test on serum from a test on plasma. As both plasma and serum tests are performed on only a portion of whole blood, both tests require conversion to establish the correlative whole blood test result. In the absence of any converting evidence, appellant’s convictions for driving while under the influence of alcohol and homicide by vehicle while driving under the influence of alcohol cannot be sustained. Accordingly, we arrest judgment on these two convictions.

Appellant also alleges that the trial court erred in instructing the jury on the mens rea requirement for homicide by vehicle. We agree that the trial court gave ax* improper charge.

We apply the following standard in our review of the trial court’s jury charge:

In reviewing a trial court’s instructions to the jury, it is well settled that we must view the court’s charge in its entirety to determine whether any prejudicial error has been committed. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 A.2d 1314 (1984). “A trial court is not required to accept the precise language of points for charge submitted by counsel so long as the issues are defined accurately and the applicable law is correctly reviewed.”

Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 379-380, 492 A.2d 1382, 1384-1385 (1985).

In the instant case, the trial court gave the jury the following instruction:

Count IV charges homicide by vehicle. The Motor Vehicle Code provides, members of the jury, as follows: Any person who unintentionally — now, there is no evidence here at all that this defendant intended to cause anyone’s death, much less Mr. Sheffy’s, but that’s not the case. The case here is any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or ordinances applying to the operation or use of a vehicle or to a traffic regulation is guilty of homicide by vehicle when the violation is the cause of death.
... So, if you find that this defendant in any way violated the provisions of the Motor Vehicle Code, and that it was the cause of the death then, of course, you would find the defendant guilty.

(N.T., 10/3/90, pp. 76-77). The Pennsylvania Supreme Court stated the applicable mens rea necessary to sustain a homicide by vehicle conviction in Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987), as follows:

We now hold that ordinary negligence will not sustain a conviction for the offense of homicide by vehicle. The applicable mens rea requirements of culpability are those enumerated in 18 Pa.C.S. § 302(a). Section 302(a) provides,
(a) Minimum requirements of culpability. — Except as provided in section 305 of this title (relating to limitations of scope of culpability requirements), a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

Id., 517 Pa. at 200, 535 A.2d at 579. If the trial court fails to charge the jury on the applicable mens rea, a new trial is warranted. Commonwealth v. Safrit, 517 Pa. 484, 486, 538 A.2d 1335, 1335 (1988).

We conclude that appellant’s challenge to the jury instruction merits relief. The trial court’s charge to the jury did not specify any mens rea requirements. The jury was impermissibly permitted to decide that any violation of the vehicle code, including a violation resulting from ordinary negligence, was sufficient to sustain a conviction for homicide by vehicle. Accordingly, we vacate and remand for a new trial on the charge of homicide by vehicle.

Appellant’s third issue for review contends that the trial court erred in failing to suppress appellant’s inculpatory statements. We conclude that the trial court properly denied appellant’s suppression motion.

Our standard for reviewing a trial court’s denial of a suppression motion is firmly established:

The suppression court must make findings of fact and conclusions of law in determining whether evidence was obtained in violation of the defendant’s rights. The burden of proving the admissibility of the evidence lies on the Commonwealth’s shoulders; the standard by which the court determines the legitimacy of the search and seizure, and hence the admissibility of the evidence whose suppression has been moved, is that of the preponderance of the evidence. Pa.R.Crim.P. 232(h). On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court’s findings of fact.

Commonwealth v. Eliff, 300 Pa.Super. 423, 428, 446 A.2d 927, 929 (1982) (citations omitted).

Although appellant does not specify the precise statements challenged, he contends that his Miranda waiver was not knowing, intelligent, or voluntary because he was on medication and in a hospital setting. Appellant cites Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977), and Commonwealth v. Hunt, 263 Pa.Super. 504, 398 A.2d 690 (1979), as support for his argument that the interrogating officer should have obtained an expert medical appraisal of his physical and mental condition prior to interrogation. (Appellant’s brief at 14-15.) This assertion is in error. Although the Supreme Court in Cornish indicated that such an appraisal might be preferable, the absence of such an appraisal does not destroy the voluntary nature of any Miranda waiver or inculpatory statements. Our Court, in Commonwealth v. Hunt, supra, stated:

Thus, while expert medical testimony would be helpful to the suppression court in determining the accused’s physical and mental impairities (sic), the foregoing cases demonstrate that the credible testimony of the interrogating officers alone can substantiate a finding of voluntariness.

Id., 263 Pa.Superior Ct. at 511, 398 A.2d at 690. The interrogating officer testified as to the voluntary nature of appellant’s statements, and a thorough review of the record supports the trial court’s determination that the statements were voluntary. Accordingly, the trial court did not err in denying appellant’s motion to suppress.

For the reasons noted above, we arrest judgment on the convictions for driving while under the influence of alcohol and homicide by vehicle while under the influence of alcohol. We vacate the judgment of sentence on the homicide by vehicle conviction, and remand for a new trial consistent with this decision.

Judgment arrested in part. Reversed and remanded in part. Jurisdiction relinquished.

      . We note that the en banc trial court was not provided with a trial transcript for the purpose of considering post-verdict motions. However, appellant’s counsel did preserve the issues at trial and in post-verdict motions, and the Commonwealth was put on notice of appellant’s objections. As we were provided with a transcript for this appeal, we will address appellant’s issues at this time for the purpose of judicial expediency.

      . Due to our resolution of appellant’s first three issues, we will not address the merits of issues four through eight.

      . The medical technologist who tested the blood sample gave the following testimony at the pre-trial hearing:
      Q Is it correct that if a legal analysis had been requested you would have — Milton Hershey Medical Center would have tested whole blood or blood serum?
      A They would have tested the whole blood. On this sheet it does say plasma which is part of whole blood.
      Q I understand that, but it’s (sic) — plasma has certain substances removed from it which is contained in blood; isn’t that correct?
      A Um hum, yes.
      (N.T. 5/22/90, pp. 14-15).
      The medical technologist also gave the following testimony at trial:
      Q Mrs. Valigorsky, you indicated that the blood was Curtis Wanner’s?
      A Yes.
      Q Is that correct?
      A Um hum.
      Q Or should I say the plasma you received?
      A Yes, um hum. Well, it was blood and then it's spun down to plasma, yes.
      Q So before you tested what was in this test tube you removed certain things from the blood; did you not?
      A No I did not.
      Q Well, when it’s spun down and—
      A It remained in the tube, okay.
      Q So you put the blood on a centrifuge?
      A Yes.
      Q And certain portions of the whole blood are separated by this process?
      A The red cells settle to the bottom, yes.
      Q And the sample you analyzed was drawn from the top of the tube?

        A Yes, the plasma at the top.
      Q And so what you analyzed was only plasma and not the whole
      blood; is that correct?
      A Yes.
      (N.T. 10/1/90, pp. 26-27)

      . All definitions are taken from Borland’s Illustrated Medical Dictionary, Twenty-fifth Edition, W.B. Saunders Company (1974).

      . Blood serum is defined as “blood plasma from which the fibrinogen has been removed in the process of clotting.” Fibrinogen is a coagulation factor.

      . We also note that the trial court erred in instructing the jury that 75 Pa.C.S.A. § 3731(a)(4) did not require a blood alcohol count from whole blood, but that a result from blood plasma would suffice. (N.T. 10/3/90, pp. 75-76).

      . We note that the interrogating officer testified that he spoke with the attending physician about appellant’s medication. (N.T. 5/22/90, p. 31) However, the record is not clear as to the content of this conversation or whether the conversation occurred prior to or after interrogation.

      . We note that appellant does not raise any issues challenging the trial court’s determination that he committed a summary offense in violation of the statutory guidelines for driving in roadways laned for traffic. Accordingly, we have not addressed this conviction.