author: HOFFMAN, Judge:

text:
    459 A.2d 365
    COMMONWEALTH of Pennsylvania, Appellant, v. Samuel HENLEY.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1983.
    Filed March 31, 1983.
    Reargument Denied May 25, 1983.
    Petition for Allowance of Appeal Granted Sept. 27, 1983.

      Kenneth S. Gallant, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Burton A. Rose, Philadelphia, for appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is a Commonwealth appeal from the lower court’s sustaining a demurrer to the evidence charging appellee with attempting to receive stolen property because the crime was legally impossible. We find that the legal impossibility defense has been abolished in Pennsylvania and, accordingly, reverse and remand for trial.

On December 22, 1980, the Commonwealth’s informant entered appellee’s jewelry store and offered to sell appellee five gold chains that had been specially coated by law enforcement officials. Appellee, clearly made aware that the chains were stolen, paid the informant $30.00, and requested that the informant bring in any additional stolen items he might have. The transaction was tape-recorded and appellee’s hands were found to be covered with the special substance. Following the Commonwealth’s presentation of evidence, the lower court granted appellee’s demurrer to the charge of attempting to receive stolen property, reasoning that because the chains were in police possession and had, therefore, lost their stolen character, no crime was possible. The Commonwealth appeals from that order, alleging that 18 Pa.C.S.A. § 901(b) precludes the lower court’s holding.

In construing Pennsylvania’s statutes, “the object of all interpretation ... is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S.A. § 1921(a). “Where provisions of a statute appear ambiguous or inconsistent, the intention of the legislature may be determined by examining the occasion, reason or necessity of the law.” Pennsylvania Labor Relations Board v. State College Area School District 1, 461 Pa. 494, 502, 337 A.2d 262, 266 (1975). See 1 Pa.C.S.A. § 1921(c); Commonwealth v. Barone, 276 Pa.Superior Ct. 282, 293, 419 A.2d 457, 463 (1980). In addition, any former law on the same or a similar topic and the “consequences of a particular interpretation” may be considered. 1 Pa.C.S.A. § 1921(c)(5) and (6).

Section 901 of the Pennsylvania Crimes Code reads as follows:

(a) Definition of attempt—A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of the crime.
(b) Impossibility —It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the crime attempted.

18 Pa.C.S.A. § 901. (emphasis added). The Commonwealth contends that § 901(b) precludes the use of both legal and factual impossibility as defenses to crimes of attempt, while appellee interprets the same language as precluding only factual impossibility. After a thorough analysis of the statute and the legislature’s intent, we agree with the Commonwealth that § 901(b) abolished both defenses and thus, find the demurrer inappropriate.

A distinction existed at common law between legal and factual impossibility. Factual impossibility though never a defense for one charged with attempt to commit a crime “notwithstanding the existence of facts unknown to him which would have rendered the complete perpetration of the crime itself impossible,” People v. Jaffe, 185 N.Y. 497, 499, 78 N.E. 169 (1906), reh. den., People v. Jaffe, 186 N.Y. 560, 79 N.E. 1113 (1906), superseded by statute as stated in People v. Leichtweis, 59 App.Div.2d 383, 399 N.Y.S.2d 439 (1977), is best illustrated by “Pickpocket cases”, where despite the absence of money or a wallet in a pocket, potentially subject to larceny, attempt to commit larceny may still be proven. See Commonwealth v. Johnson, 312 Pa. 140, 167 A. 344 (1938) (factual impossibility not a defense to a charge of attempt to obtain money by false pretenses); People v. Gardner, 144 N.Y. 119, 38 N.E. 1003 (1894). Legal impossibility occurs where the intended acts would not amount to a crime even if completed, People v. Jaffe, supra, 185 N.Y. at 497, 78 N.E. at 169, and applies to those circumstances where:

(1) the motive, desire and expectation is to perform an act in violation of the law;
(2) there is intention to perform a physical act;
(3) there is a performance of the intended physical act and;
(4) the consequence resulting from the intended act does not amount to a crime.

U.S. v. Berrigan, 482 F.2d 171, 188 (3d Cir.1973). See generally Annot., 37 A.L.R.3d 375 (1971). The present case illustrates a situation appropriate to an assertion of the legal impossibility defense: despite appellee’s belief that the chains were stolen, he was incapable of attempting to receive stolen property because the chains were not stolen. See 37 A.L.R.3d supra at 383 (“no man can legally intend what is legally impossible.”) See, e.g., U.S. v. Aviedo, 525 F.2d 881 (5th Cir.1976) (impossible to attempt to distribute heroin where actual substance distributed was uncontrolled); U.S. v. Berrigan, supra (impossible to attempt to smuggle letter from prison without consent or knowledge of warden where warden knew); U.S. v. Hair, 356 F.Supp. 339 (DCDC 1973) (impossible to attempt to receive stolen property where property not stolen); People v. Jaffe, supra (impossible to receive stolen cloth in possession of police.)

Although this distinction has been historically recognized, the modern trend is to eliminate the distinction and abrogate the entire impossibility defense. This modern trend is clearly represented in the Model Penal Code, § 5.01:

(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise requested for commission of the crime, he:
(2) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be;

Model Penal Code (U.L.A.) § 5.01. (emphasis added). The drafters of the Model Penal Code intended “to extend the criminality of attempts by sweeping aside the defense of impossibility (including the distinction between so-called factual and legal impossibility) ...” Model Penal Code § 5.01, tentative Draft No. 10, quoted in United States v. Hair, supra, 342. The Pennsylvania legislature intended § 901 to be “similar to § 5.01 of the Model Penal Code.” Historical Note to 18 Pa.C.S.A. § 901. The language of the Model Penal Code, “if the attendant circumstances were as he believes them to be,” clearly abrogates both the legal and factual impossibility defenses. For no matter what the actual extrinsic circumstances are, if the defendant intends to commit a crime, he may be guilty of attempt even if the crime is impossible to complete or his actions do not constitute a crime. The Pennsylvania statute however, employing the language “because of a misapprehension of the circumstances it would have been impossible for the accused to commit the crime attempted,” fails to emphasize the irrelevancy of the actor’s subjective beliefs and might thus be construed to preclude only the factual impossibility defense where the factual circumstances are not as the actor believes them to be. Despite the apparent ambiguity created by the legislature’s failure to adopt the Model Penal Code verbatim, we are satisfied that the legislature intended the same effect.

“The purpose of [§ 901(b)] is to reverse the results in cases where attempt convictions have been set aside on the ground that it was legally impossible for the actor to have committed the crime contemplated.” S. Toll, Pennsylvania Crimes Code Annotated § 901(b), at 218 (1974). See People v. Jelke, 1 N.Y.2d 321, 152 N.Y.S.2d 479, 135 N.E.2d 213 (1956); People v. Jaffe, supra; People v. Rollino, 37 Misc.2d 14, 233 N.Y.S.2d 580 (1962). Toll challenges the unsound basis for the legal impossibility defense as:

Seeking to evaluate mental attitude—‘intent’ or ‘purpose’ —not by looking to the actor’s mental frame of reference, but to a situation wholly at variance with the actor’s beliefs. In so doing, the courts exonerate defendants in situations where attempt liability most certainly sould be imposed. In all of these cases (1) criminal purpose has been clearly demonstrated; (2) the actor has gone as far as he could in implementing that purpose; (3) as a result, the actor’s ‘dangerousness’ is plainly manifested.

Id. at 220, and opines that the General Assembly intended to abolish the defense of impossibility notwithstanding its characterization as legal or factual. Toll’s analysis parallels the express intention of the legislature in addressing impossibility, to make § 901(b) “similar” to § 5.01 of the Model Penal Code.

The prior Pennsylvania statute, detailing the inchoate crime of attempt, 18 P.S. § 5107 (repealed), made no reference to the impossibility defenses. Interpreting the new statute to preclude only the factual impossibility defense, would reduce the legislature’s action to mere codification of existing law. See Commonwealth v. Johnson, supra. Agreement with appellee’s interpretation of § 901(b) would dictate a reading of the statute to abolish a defense never recognized and to ignore contemporary criticism of the entire impossibility concept. Moreover, mere codification of the existing law is not “similar” to the Model Penal Code’s abrogation of the entire defense. We therefore agree with the Commonwealth thát the legislature meant to effect a more significant change in re-examining and re-drafting the inchoate crime of attempt.

Furthermore, many other jurisdictions have abrogated the impossibility defense. California, for example, has consistently acknowledged a crime of attempt to receive stolen property even though the property was in police possession. See People v. Rojas, 55 Cal.2d 252, 10 Cal.Rptr. 465, 358 P.2d 921 (1961); Faustina v. Superior Court of Los Angeles County, 174 Cal.App.2d 830, 345 P.2d 543 (1959). (“Intent is in the mind, it is not the external realities to which intention refers. The fact that defendant was mistaken regarding the external realities did not alter his intention, but simply made it impossible to effectuate it____” People v. Rojas, 55 Cal.2d at 257, 10 Cal.Rptr. at 468, 358 P.2d at 924.) Similarly, and perhaps most indicative of the prevalent shift in many jurisdictions, New York, in 1967, amended its penal code to reflect the Model Penal Code’s abolishment of the defense. This is notable as the New York Court of Appeals had validated the legal impossibility defense to a charge of attempting to receive stolen property in People v. Jaffe, supra and thereby established a foundation upon which many jurisdictions have based their decisions to allow the defense. In sum, many jurisdictions adopting the Model Penal Code stance for determining criminal culpability for attempt, have shifted the focus from extrinsic circumstances to the actor’s mental state. Therefore, the actor’s belief in the external circumstances, not the reality of the external circumstances, controls the necessary proof for attempt to commit the underlying substantive crime.

In light of this trend, and the background of Pennsylvania law, we find no plausible explanation for the legislature’s amendment to the inchoate crimes provisions other than to parallel the intent of the Model Penal Code and abolish the legal impossibility defense. Accordingly, the standard for a demurrer, that “the evidence of record and the inferences reasonably drawn therefrom would [not] support a verdict of guilty,” Commonwealth v. Dennis, 211 Pa.Superior Ct. 37, 40, 234 A.2d 53, 54 (1967), is not met in this situation. Because appellee is precluded from asserting the impossibility defense, the trier of fact may consider appellee’s beliefs, notwithstanding the actual extrinsic circumstances, in determining appellee’s intention in attempting to receive stolen property.

Since we find that legal impossibility is no longer a defense to a charge of attempt to commit a crime, we reverse and remand for trial.

Reversed and remanded.

Jurisdiction is not Retained.

      . In order to prove the underlying offense of theft by receiving stolen property, "the Commonwealth must establish that: (1) the goods are stolen; (2) the defendant received such goods; (3) the defendant knew them to be stolen or had reasonable cause to know that they were stolen." Commonwealth v. Gore, 267 Pa.Superior Ct. 419, 424, 406 A.2d 1112, 1114 (1979). The lower court here reasoned that because the chains were in police possession and hence, not stolen property, no attempt could be made to commit the underlying crime.

        . The distinction between factual and legal impossibility has elsewhere been explained "where the act, if completed, would not be criminal, the situation is usually described as a 'legal impossibility;’ but where the basic substantive crime is impossible of completion simply because of some physical or factual condition unknown to the defendant, the situation is usually described as a ‘factual impossibility.’ ” Annot. 37 A.L.R.3d 375, 383 (1971).

      . The result desired or intended by the actor must, however, constitute a crime. "If, according to his beliefs as to facts and legal relationships, the result desired or intended is not a crime, the actor will not be guilty of an attempt even though he firmly believes that his goal is criminal.” S. Toll, Pennsylvania Crimes Code Annotated § 901(b), at 219 (1974) quoting Model Penal Code (U.L.A.) § 5.01 Tent. Draft No. 10, Comment at 31 (1960). See e.g., People v. Teal, 196 N.Y. 372, 89 N.E. 1086 (1909) (no attempt to suborn a witness if the testimony sought is immaterial and would not, if given, constitute perjury.)

      . See N.Y. Penal Law § 110.10 (Consol. 1967):
      If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime would have been committed had the attendant circumstances been as such person believed them to be.


source: Caselaw Access Project

author: PRICE, Judge:

license: Public Domain

text:
    459 A.2d 369
    COMMONWEALTH of Pennsylvania v. Gary W. RANK, Appellant.
    Superior Court of Pennsylvania.
    Argued March 23, 1981.
    Filed April 15, 1983.

      John J. Krafsig, Jr., Harrisburg, for appellant.
    Rolf W. Bienk, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.

      This decision was reached prior to the death of Judge PRICE.

   PRICE, Judge:

This is an appeal from an order of the Court of Common Pleas of Dauphin County refusing to grant expungement of an arrest record. The procedural history and facts relevant to the issues on appeal are as follows.

Appellant was arrested and charged with the March 22, 1979 murder of an elderly Gratz woman who was found dead in her home after being brutally beaten. Cause of death was fixed as strangulation.

At trial, both the Commonwealth and appellant presented fingerprint experts and appellant took the stand to offer explanation for the presence of his fingerprints at two places in the victim’s residence. After approximately a week and a half long jury trial (The Honorable John C. Dowling, presiding) the jury returned a verdict of not guilty on September 19, 1979. Appellant then proceeded to file a petition to expunge his criminal record. A hearing was held before Judge Dowling on November 20, 1979. The petition was denied on November 27, 1979. This appeal followed.

There is only one viable issue presented to us in this appeal, and that is whether the trial court erred in imposing upon appellant the burden of affirmatively demonstrating his non-culpability and undertaking an independent evaluation of the trial evidence in the murder charge for which he was tried after he had been found not guilty by a jury.

The right of an accused to seek expungement of an arrest record is an adjunct of due process. “[A]n innocent individual has a right to be free from unwarranted punishment, a court has the authority to remedy the denial of that right by ordering expungement of the arrest record.” Commonwealth v. Malone, 244 Pa.Superior Ct. 62, 366 A.2d 584 (1976). In Commonwealth v. Mueller, 258 Pa.Superior Ct. 219, 392 A.2d 763 (1978), we fashioned a two-prong standard to be implemented by hearing judges in expungement proceedings:

Accordingly, where the record shows that the Commonwealth made out a prima facie case of guilt on the part of an accused, he will then have the burden to affirmatively demonstrate non-culpability at a hearing, otherwise his petition to expunge will be denied. If, however, such a showing is made, the court must weigh the Commonwealth’s interest in retaining [petitioner’s] arrest record against [petitioner’s] interest in being free from whatever disabilities the record may create.

Id., 258 Pa.Superior at 223, 392 A.2d at 765.

The application of the Mueller test was recently narrowed, however, in the en banc decision of Commonwealth v. Capone, 282 Pa.Superior Ct. 458, 422 A.2d 1383 (1980). Therein we distinguished Mueller factually on the grounds that although the Commonwealth presented a prima facie case against the accused at a preliminary hearing the charges were dismissed on Rule 1100 grounds, i.e., procedural grounds. In that instance the burden to demonstrate nonculpability at an expungement hearing was properly placed on the accused. However, the court in Capone, supra, stated that when dismissal is by virtue of acquittal on the merits by a jury and not a procedural rule, the standard must be different:

One of the basic tenets of our system of criminal justice is that the accused is presumed innocent until proven guilty beyond a reasonable doubt. We, therefore, refuse to impose upon the appellant the burden of proving his innocence subsequent to acquittal by requiring him to show non-culpability in an expungement proceeding. We will not, nor will we permit the trial court to engage in an independent evaluation of the evidence presented at trial.

Id., 282 Pa.Superior at 461, 422 A.2d at 1385.

In re Haefner, 291 Pa.Superior Ct. 604, 436 A.2d 665 (1981), followed the authority in Capone when appellant appealed a denial of expungement after the jury could not reach a verdict and the trial judge declared a mistrial: “Thus, the prosecution of appellant was terminated because the Commonwealth was unable to produce sufficient evidence to convince a jury of his peers of his guilt beyond a reasonable doubt and a second trial was constitutionally prohibited. We therefore ... refuse to impose the burden of showing nonculpability upon the appellant.” Haefner, supra, 291 Pa.Superior at 607, 436 A.2d at 666.

Likewise, the instant case must be governed by Capone. At the expungement hearing, appellant argued vigorously that his acquittal by the jury should have removed his burden to once again prove nonculpability. Judge Dowling, however, agreed with the Commonwealth that since a prima facie case was established against appellant the ruling in Chase v. King, 267 Pa.Superior Ct. 498, 406 A.2d 1388 (1979) governed. In Chase, a panel from our court applied the Mueller two-pronged standard to a case where a prima facie case of theft was made against the accused but a jury found him not guilty. The denial of expungement was affirmed because the appellant “failed to demonstrate affirmatively a lack of culpability or a mistaken arrest. His evidence demonstrated only that he had been exonerated of the charge by a jury which had not been convinced of his guilt beyond a reasonable doubt.” Chase, supra, 267 Pa. Super. at 502, 406 A.2d at 1390.

The authority of Chase, supra, however, must now be viewed in light of the en banc decision in Capone, supra. We find, therefore, that the holding in Capone must govern the present appeal and we must agree with appellant’s argument that the lower court erred in requiring that appellant prove his non-culpability and in its independent evaluation of the trial evidence.

While Capone, supra, did make it clear that the Mueller, supra, standard was revised when the accused had been acquitted by a jury, it did not discard Mueller’s and Malone’s, supra, requirement that the court balance the Commonwealth’s interest in retaining appellant’s arrest record against appellant’s interest in being free from whatever disabilities the record may create. “[T]he court must balance the competing interests involved and resolve each case on its own facts.” Commonwealth v. Malone, 244 Pa.Superior Ct. 62, 70, 366 A.2d 584, 589 (1976). The Commonwealth has the burden of presenting compelling evidence to justify the retention of an arrest record. Commonwealth v. Rose, 263 Pa.Superior Ct. 349, 397 A.2d 1243 (1979).

We have often times acknowledged the hardship that an arrest record can cause in the life of a wrongly accused individual. Commonwealth v. Capone, 282 Pa.Superior Ct. 458, 422 A.2d 1383 (1980); Commonwealth v. Rose, 263 Pa.Superior Ct. 349, 397 A.2d 1243 (1979); Commonwealth v. Malone, 244 Pa.Superior Ct. 62, 366 A.2d 584 (1976). “The mistakenly arrested person never knows when it will cause a denial of credit, loss of a new job, or simply the loss of esteem, trust, and respect from other members of the community.” Chase v. King, 267 Pa.Superior Ct. 498, 503, 406 A.2d 1388, 1391 (1979) (Hoffman, J., concurring and dissenting).

At the expungement hearing the Commonwealth presented no compelling reason to maintain the record. The case presented against expungement relied solely on facts that appellant, having being reinstated in his employment, suffered no economic hardship, no loss of credit to that point and was planning to be married whether or not the record was expunged.

However, this evidence is not adequate to carry the Commonwealth’s burden in avoiding expungement. The Commonwealth has presented no state or law enforcement interest in the retention of appellant’s arrest record. These interests are the ones we have recognized as legitimate in the balancing test. Commonwealth v. Malone, 244 Pa.Superior Ct. 62, 366 A.2d 584 (1976).

On the other hand, it was shown at the expungement hearing that appellant was nineteen years old with no prior arrest record and that he had already been visited by the State Police for questioning at his place of employment in an unrelated matter. Furthermore, only two months had passed between the not guilty verdict and the expungement hearing making the Commonwealth’s assertion that appellant had not or would not suffer credit loss or humiliation in his community because of his arrest record extremely weak.

Based on the foregoing we are compelled to find that the lower court abused its discretion in refusing to grant appellant’s petition. Accordingly, the order of the trial court is reversed and the case remanded with directions to enter an order granting expungement. Jurisdiction is not retained.

      . At the hearing the Deputy District Attorney argued to the court: "I would also say that as regards this interrogation of the defendant by the State Police on this second murder, that this Court can order all •the expungement in the world if it so chose as far as his record is concerned, but nothing will expunge the memories of those police officers.” (N.T., Expungement Hearing, at 17). The argument that harm to reputation has already been inflicted is hardly an adequate reason under the standards set by this court to refuse granting the expungement petition.
      We also note that Judge Dowling, in his opinion, implied that appellant’s arrest record may be valuable in police investigation into three other murders. Slip op. at 7. Since the Commonwealth did not offer this at the hearing we will not consider it as a factor in our decision.


author: CAVANAUGH, Judge:

text:
    459 A.2d 373
    COMMONWEALTH of Pennsylvania v. Mark TRAFFORD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1982.
    Filed April 15, 1983.

      Richard R. Fink, Levittown, for appellant.
    C. Theodore Fritsch, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   CAVANAUGH, Judge:

Appellant Mark Trafford was found guilty, following a non-jury trial, of arson, 18 Pa.C.S.A. § 3301(b). Post-verdict motions were denied and appellant was sentenced to two years probation and ordered to pay the costs of prosecution and make restitution for damages. The only claim raised on appeal is that the evidence was insufficient to sustain the verdict. We agree and therefore reverse the judgment of sentence.

In evaluating the sufficiency of the evidence after a guilty verdict, the evidence must be viewed in a light most favorable to the Commonwealth, and the Commonwealth must be' given the benefit of all reasonable inferences arising therefrom. Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963). But before a conviction will be sustained, “the facts and circumstances proved must be of such a character as to establish guilt beyond a reasonable doubt. And while the Commonwealth is not required to remove all doubt to a mathematical certainty, evidence to convict an accused of a crime must be something more than evidence that merely raises a suspicion of guilt. The inference of guilt must be based on facts and conditions proved; mere conjecture or surmise is not sufficient.” Commonwealth v. Garrett, 423 Pa. 8, 12, 222 A.2d 902, 905 (1966) (citations omitted).

All of the evidence relied upon by the prosecution to support its theory in the instant case was circumstantial. “It is true that circumstantial evidence, in itself, may be sufficient to establish the commission of the crime and the accused’s connection therewith.” Commonwealth v. Simpson, 436 Pa. 459, 463, 260 A.2d 751, 754 (1970). “Indeed, it is clear that arson, by its very nature, is rarely committed in the presence of others, and a refusal to convict on circumstantial evidence alone would be tantamount to an invitation to commit the crime.” Commonwealth v. Colon, 264 Pa. Super. 314, 325, 399 A.2d 1068, 1073 (1979). Extra caution is due, however, in reviewing a conviction based solely on circumstantial evidence.

[B]ecause of the fact that it is circumstantial and that a grave wrong may be done to an innocent man by reasoning from circumstances not sufficiently cogent in themselves or as connected, and particularly not sufficiently exclusive of every innocent hypothesis, the courts have been very sedulous to prevent an innocent man being found guilty where the evidence does not conform to the acceptable standards.

Rodriquez v. United States, 232 F.2d 819, 821 (5th Cir. 1956); cited with approval in Commonwealth v. Santana, 460 Pa. 482, 486, 333 A.2d 876, 877 (1975).

In order to convict a person of arson, the prosecution must establish beyond a reasonable doubt (1) that there was a fire, (2) that it was willfully and maliciously set, and (3) that the defendant was the guilty party. Commonwealth v. Carthon, 467 Pa. 73, 354 A.2d 557 (1976); Commonwealth v. Dolan, 287 Pa.Super. 202, 429 A.2d 1171 (1981); Commonwealth v. Colon, 264 Pa.Super. 314, 399 A.2d 1068 (1979). Appellant concedes that the first two elements have been established. There was a fire in the club house of the Middletown Trace Apartments, Bucks County, on December 14, 1979, and the evidence demonstrated that the fire was deliberately set. Appellant contends, however, that the evidence was insufficient to establish beyond a reasonable doubt that he was the perpetrator. The evidence presented on this issue, viewed in the light most favorable to the Commonwealth, may be summarized as follows.

At 2:34 a.m. on December 14, 1979, Victoria Hartman, the switchboard operator of the Newtown Answering Service, received an anonymous telephone call from a muffled male voice reporting a fire at the apartments. Ms. Hartman immediately paged Middletown Trace’s newly employed maintenance man, appellant Mark Trafford, on his beeper. Appellant responded by telephone to the beeper page within about two minutes. Ms. Hartman told appellant about the fire and he said he would check it out. Ms. Hartman then called Middletown Police Dispatcher Thomas Walker. Walker received Ms. Hartman’s call reporting the fire at 2:39 a.m. He immediately dispatched the fire company by pushing a Plectron button in his office. While still on the phone with Ms. Hartman, Walker received a call from appellant. Walker put Ms. Hartman on hold so that he could speak with appellant. Appellant allegedly told Walker that he “would be coming from home” and would meet the police at the apartment complex. Walker then dispatched Officer Billy Johns of the Middletown Township Police Department who was at a location about two or three minutes away from the apartment complex.

It is undisputed that the first outsider to arrive at the scene of the fire was fireman William Wheeler, who estimated that he arrived at the scene within two to three minutes after receiving the Plectron call at his home. Upon arriving at the fire, Mr. Wheeler observed appellant coming out of the door of the apartment clubhouse. The clubhouse was filled with smoke and appellant advised Mr. Wheeler that he had just put out a fire. Officer Johns arrived shortly thereafter. Dispatcher Walker’s records showed that Johns reported back to Walker at 2:41 a.m., stating that he had arrived at the complex.

Several fire and police officials testified that appellant told them on the morning of the fire that he had responded to his beeper page from a phone booth at Street and Knights Road in Bensalem Township, a point approximately five miles from the apartment complex, and that he then proceeded to the complex and extinguished the fire.

Appellant testified at trial that he was just leaving the Sportsman’s Bar on Street Road when his beeper went off, that he phoned the answering service from a phone booth half a block away, and, upon learning of the fire, sped to the apartment complex. Upon arriving at the complex, he entered the smoke-filled clubhouse and tore down a kitchen blind which was still smoldering. He then called dispatcher Walker from the garage at the complex to report the fire and went back into the clubhouse. Upon emerging from the building seconds later, he encountered fireman Wheeler and, shortly thereafter, Officer Johns.

Based on the testimony of the Commonwealth witnesses regarding the sequence of events between the time the fire was first reported to the answering service and the time the first fireman arrived on the scene, the trial court concluded that appellant could not have traveled from Street and Knights Road, where he contends he was when he answered his beeper page, to the apartment complex, where he contends he was when he reported the fire to Walker, during the time that elapsed between these two calls. Nor could he have made the trip between the time he called Walker and fireman Wheeler’s appearance on the scene. Thus the court concluded that appellant must have responded to the beeper page and reported the fire to police dispatcher Walker all from the same location close to the fire and that he intentionally gave false information to officials as to his whereabouts at the time of the fire. The lower court found that this was sufficient to establish, beyond a reasonable doubt, that appellant set the fire. We disagree.

At best, the Commonwealth’s evidence supports a conclusion that appellant lied about where he was when he was notified of the fire and that he was at or near the scene of the fire when it was started. Appellant’s presence at the scene of the fire is certainly insufficient to establish guilt. Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976). Nor is the added factor of his apparently false statements as to his whereabouts sufficient to establish a prima facie case. “A man charged with crime is not required to explain anything. It is the Commonwealth’s obligation to prove guilt.... [I]f the defendant does speak and speaks unconvincingly or self-contradictorily, but the Commonwealth has not made out a prima facie case, a resulting conviction will not be allowed to stand.” Commonwealth v. Clinton, 391 Pa. 212, 216-17, 137 A.2d 463, 465 (1958). The Commonwealth can not use apparent inconsistencies in the appellant’s version of the events surrounding the fire to make up for deficiencies in its own case. Of course, appellant’s deceptions would lead one to suspect that perhaps mischief was afoot, but his willingness to mislead provides no basis in logic for concluding that he engaged in the deliberate felonious act of arson. While the evidence in the instant case may have cast a degree of suspicion on appellant, it is clear that “suspicion is never accepted in a court of justice as a substitute for proof.” Commonwealth v. New, 354 Pa. 188, 198, 47 A.2d 450, 457 (1946). See Commonwealth v. Long, 470 Pa. 204, 368 A.2d 265 (1977); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966); Commonwealth v. Deyell, 399 Pa. 563, 160 A.2d 448 (1960); Commonwealth v. Clinton, supra; Commonwealth v. McCormick, 304 Pa.Super. 321, 450 A.2d 701 (1982). We believe that too much has been left to conjecture in the instant case and therefore conclude that we cannot permit the conviction to stand.

Judgment of sentence reversed and appellant ordered discharged.


author: BROSKY, Judge:

text:
    459 A.2d 376
    COMMONWEALTH of Pennsylvania v. Theresa NUNEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 15, 1982.
    Filed April 15, 1983.
    Petition for Allowance of Appeal Denied Aug. 1, 1983.

      Thomas V. Hunt, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   BROSKY, Judge:

This is an appeal from judgments of sentence after convictions in a jury trial for second-degree murder and conspiracy to murder. Appellant contends that: (1) the evidence was insufficient to support the verdict; and (2) the court below erred in not suppressing a statement given by appellant. We disagree with appellant’s contentions and affirm the judgments of sentence.

To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact finder is free to believe all, part or none of the evidence. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978).

Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).

Viewed thusly, the record establishes the following:

In the early morning hours of September 25, 1980, one Edward Tierney, a Philadelphia police cadet was attacked in appellant’s house by her son, Larry Cooper, and two other men. Appellant, who had been asleep, came downstairs and observed one of the men, his hands on Tierney’s neck, stating, “What? Ten dollars? Is that all?” Tierney cried out, “I’m a cop. Help me.” Cooper said, “We can’t let him go.” Appellant then told the men to tie Tierney up and handed them a cord she had pulled off her vacuum cleaner. She also handed them a pot, a knife, a fork and scissors to be used to subdue Tierney who was struggling. At that point, police, who had been summoned by neighbors knocked on the door and appellant said, “[G]et rid of him ... hide him somewhere.” In response, the men took Tierney upstairs and silenced him while appellant answered the door and told the police nothing was wrong. After the police left, the men dragged Tierney out to his car and stuffed him in the trunk. However, he continued to resist and the men struck him several times with a ballpeen hammer in order to close the trunk on him. Appellant, who had accompanied the men outside, told a neighbor, “Go in the house. Mind your own business. I know what I’m doing.” Cooper then drove off in Tierney’s car and dumped him in a creek, where two days later he was found dead with an electrical cord tied around his neck and right wrist, the cause of death being mechanical asphyxia. Appellant cleaned up all the blood in the house with a towel and then gave it to Cooper for disposal. Tierney’s watch was given to appellant’s paramour; his gun was taken by one of the men involved in the attack; and his car was used by Cooper for the next two days.

After a thorough and careful review of the record, we conclude that the opinion of the court below adequately disposes of appellant’s contentions that the evidence was sufficient to support the verdict.

Appellant’s next contention is that it was error for the court below to have admitted a statement given by her, where she was not apprised of her Miranda rights, where the statement was given during an alleged custodial interrogation and while she was allegedly reasonably a subject of the investigation. “On review this Court must determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings. In doing so, we will consider only the evidence of the prosecution witnesses and as much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980) (citations omitted).

On this point, the record establishes the following:

At approximately 11 p.m. on September 26, 1980, the police received information that appellant’s son and his friends had beaten and killed a man at appellant’s residence. The police then visited appellant’s house about midnight in order to determine if the incident had in fact occurred. Appellant confirmed that her son and his friends had beaten a man.

The police then requested that appellant accompany them to the Police Administration Building (P.A.B.) and give a statement. Appellant was initially concerned about the care of her children, but after her paramour volunteered to look after them, she agreed to go with the police. She was not considered a suspect in the crime at that time. Between 12:45 a.m. and 2:45 a.m., appellant gave a statement at the P.A.B. which extensively incriminated her son and his friends. Since she was considered only an eyewitness at the time, no Miranda warnings were administered. Although at some point in the evening, either at appellant’s house or at the P.A.B., appellant had told the police that she had not reported the beating and had lied to the officers who came to her house on the night of the crime, the police testified that she also stated that she had done this because she was afraid of her son and his friends.

After the interview was completed, appellant waited in an office area until she was driven home between 8 a.m. and 9 a.m. It was not until almost one month after this interview that the police received information implicating appellant and arrested her.

Appellant’s contention that the suppression court erred in admitting her statement is twofold. First, she argues that the court erred because she was questioned without having been given Miranda warnings while she was reasonably a suspect in the beating and death of Tierney. While the facts as found by the suppression court and supported by the record belie appellant’s contention that she was reasonably a suspect at the time she was first questioned, we need not decide the issue on this basis. For even if appellant was a suspect, “the mere fact that the police investigation has focused on a particular person will not require Miranda warnings before police interviews with that person.” Commonwealth v. Anderson, 253 Pa.Super. 334, 345, 385 A.2d 365, 370 (1978) (citations omitted); See Beckwith v. United States, 425 U.S. 341, 349, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976). Therefore, even if appellant was reasonably a suspect at the time she gave her statement, that fact would not have been a ground for the court below to have suppressed the statement.

Appellant next argues that the court below erred because she gave her statement during a custodial interrogation without the benefit of Miranda warnings. “In determining if ... questioning is ‘custodial interrogation,’ the test is ... whether the suspect is physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action of movement is restricted by such interrogation.” Commonwealth v. Peters, 473 Pa. 72, 83, 373 A.2d 1055, 1061 (1977) (citations omitted).

In the instant case, appellant claims the questioning was a custodial interrogation because despite her reluctance to leave her children, she was taken to the P.A.B. after midnight and kept there until nine o’clock the following morning. However, appellant overlooks the fact that the police simply requested her to accompany them and that she consented to do so only after being assured that her paramour would care for the children. While it is true that she was not returned to her home until nine o’clock, the interview began almost immediately after her arrival at the police station and was concluded within two hours. “[W]e are unwilling to adopt a requirement that warnings be given merely because the police request an interview and it occurs at a police station.” Peters, 473 Pa. at 84, 373 A.2d at 1061. We agree with appellant that the hour of the interview was undesirably late; but we do not believe that the addition of this fact alone warrants characterization of the interview as a custodial interrogation.

Appellant further argues that the police testified that she was “permitted to leave the station in the morning,” thereby admitting that she was, in their eyes, in a custodial setting. Even if we were to accept the proposition that this one statement reflected the actual intent of the police, it would be irrelevant to a determination of the instant issue because “[t]he test for custodial interrogation does not depend upon the subjective intent of the law enforcement officer-interrogator...” Commonwealth v. Patterson, 488 Pa. 227, 234, 412 A.2d 481, 484 (1980).

At the suppression hearing, appellant did not contradict the testimony of the police that she was treated simply as an informative witness, nor do the findings of the suppression court as supported by the record indicate otherwise. We therefore conclude that appellant was not deprived of her freedom of action in any significant way, nor was she placed in a situation in which she reasonably could have believed her freedom of movement was restricted. Thus, the suppression court correctly concluded that no Miranda warnings had been necessary, and properly admitted appellant’s statement.

Accordingly, the judgments of sentence are affirmed.

      . Appellant lists four issues in her "Statement of Questions Involved" portion of her brief. The final three issues are, however, in effect only a challenge to the sufficiency of the evidence for the second-degree murder and the conspiracy to murder convictions.

      . We would only supplement the lower court’s opinion by noting the following:
      (1) The fact that appellant was not charged with robbery, which is the felony underlying the second-degree murder conviction is of no legal significance. See Commonwealth v. Bastone, 466 Pa. 548, 553, 353 A.2d 827 (1976).
      (2) The nature of the felony in this case is such that it should be obvious to anyone about to embark on such a venture that the lives of the victims may be sacrificed in accomplishing the end. A reasonable man can be properly charged with the knowledge that the natural and probable consequences of such an act may well result in death or grievous bodily harm to those involved. It is not unrealistic to ascribe to one who willfully engages in a plan to commit armed robbery, a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, or a mind regardless of social duty. Thus, when dealing with the felony of armed robbery we are merely saying that it is the same malice that is required for common law murder.

        Commonwealth v. Yuknavich, 448 Pa. 502, 508 205 A.2d 290, 293 (1972).


text:
    April 8, 1983.
    459 A.2d 20
    Badesso, Appellant v. Rose.
    Argued June 9, 1982.
    Michael Coren, for appellant; David M. Kozloff, for appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Judgment affirmed.


text:
    459 A.2d 20
    Boro. of Aliquippa v. State Auto Mutual. Appeal of State Automobile Mutual Insurance Company, Inc.
    Petition for Allowance of Appeal Denied July 28, 1983.
    Argued October 13, 1982.
    James R. Hankie, for appellant; Keith R. McMillen, for Borough, appellee; Richard J. Mills, for Westmoreland, appellee.
    Before CERCONE, P.J., WIEAND and BECK, JJ.
   Order affirmed.


text:
    459 A.2d 21
    Bressi, et al. v. Carmen Leasing, et al. Appeal of Mitsubishi Aircraft International, Inc.
    Petition for Allowance of Appeal Denied July 25, 1983.
    Argued April 23, 1982.
    David M. McCormick, for appellant; James Edwin Beasley, for appellees.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Order affirmed.


text:
    459 A.2d 21
    Chase v. Chase, Appellant.
    Argued June 15, 1982.
    Rosemary Markham, for appellant; William S. Scott, for appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Order affirmed.


text:
    461 A.2d 864
    Colonial Village Mt. Mkt. Corp. v. Baranzano, Appellants.
    Reargument Denied June 20, 1983.
    Argued December 8, 1981.
    Steven R. Sosnov, for appellants; Lawrence J. Avallone, for appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The appeal is quashed.

CAVANAUGH, J., concurred in the result.


text:
    459 A.2d 21
    Commonwealth v. Burley, Appellant.

      Submitted January 13, 1983.
    Robert H. Isbell, for appellant; Donald E. Williams, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., POPOVICH and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 21
    Commonwealth v. Dabrowski, Appellant.
    Submitted November 14, 1980.
    Barbara Malett, for appellant; Shad Connelly, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., PRICE and MONTEMURO, JJ.
   The judgment of sentence of the lower court is affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    459 A.2d 22
    Commonwealth v. Haley, Appellant.
    Petition for Allowance of Appeal Denied June 22, 1983.

      Submitted January 6, 1983.
    Alfred VerDerose, for appellant; Frank Capaldo, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   The judgment of sentence is affirmed.


text:
    459 A.2d 22
    Commonwealth v. Kruchinsky, Appellant.
    Submitted February 2, 1982.
    William R. Mosolino, for appellant; Thomas J. Nickels, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   The judgment of sentence for criminal trespass is vacated. The judgments of sentence on all other counts are affirmed.


text:
    459 A.2d 22
    Commonwealth v. Lester, Appellant.
    Argued January 19, 1983.
    George T. Guarnieri, for appellant; Denis P. Cohen, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   Order of disposition affirmed.


author: Judgment of sentence affirmed.

text:
    459 A.2d 23
    Commonwealth v. Reed, Appellant.
    Submitted January 11, 1983.
    Richard H. Milgrub, Assistant Public Defender, for appellant; Thomas F. Morgan, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., POPOVICH and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 23
    Commonwealth v. Slacum, Appellant.
    Petition for Allowance of Appeal Denied July 20, 1983.
    Submitted February 8, 1983.
    Arthur G. Girton, for appellant; Helen T. Kane, Assistant District Attorney, for Commonwealth, appellee.

      Before BROSKY, CIRILLO and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 23
    Haber, et al. v. Litman, et al. Appeal of Joyce Deanes.
    Argued April 28, 1982.
    Lee R. Golden, for appellant; Kirby Lee Boring, for Haber, et al., appellees; Tom Gross, for Litman, appellee.
    Before CERCONE, P.J., BECK and MONTEMURO, JJ.
   The judgment of the lower court is affirmed.


text:
    459 A.2d 23
    Shuder, et al., Appellants v. Crawford Construction Co.
    Argued May 19, 1982.
    John A. Metz, Jr., for appellants; Joan P. Feldman, for appellees.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   Order affirmed.


text:
    459 A.2d 24
    Sun Oil Co. of Penna. v. Banghart & Mor, Inc. Appeal of Thomas E. Banghart. Sun Oil Co. of Penna. v. Banghart, Appellant.
    Argued April 22, 1982.
    Norman P. Zarwin, for appellant; Edward J. Carney, Jr., for appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Order affirmed.

WIEAND, J., concurred in the result.


text:
    459 A.2d 24
    Taylor, et ux. v. Parks, et al. Appeal of Robert L. Macquarrie and Lois F. Macquarrie, property claimants.
    Submitted May 26, 1982.
    William D. Murphy, for appellants; Kenneth R. Werner, for Taylor, appellees; Reese A. Davis, for Parks, et al., appellees; Thomas P. Mohr, for Co. of Chester, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Order affirmed.


text:
    April 15, 1983.
    459 A.2d 24
    Commonwealth v. Barnes, Appellant.
    Petition for Allowance of Appeal Denied Aug. 30, 1983.
    Submitted September 8, 1982.
    Barry H. Denker, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 25
    Commonwealth v. Groft, Appellant.
    Petition for Allowance of Appeal Denied Sept. 19, 1983.
    Argued January 26, 1983.
    Morrison B. Williams, for appellant; Douglas H. Gent, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 25
    Commonwealth v. Hall, Appellant.
    Submitted February 8, 1983.
    Vincent P. DiFabio, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 25
    Commonwealth v. Hart, Appellant.
    Petition for Allowance of Appeal Denied Aug. 24, 1983.
    Argued February 22, 1982.
    Stuart Wilder, Assistant Public Defender, for appellant; C. Theodore Fritsch, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 25
    Commonwealth v. Hill a/k/a Johnson, Appellant.
    Petition for Allowance of Appeal Denied Aug. 10, 1983.
    Submitted December 13, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Ronald Thomas Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence dated September 17, 1981 is affirmed.


text:
    459 A.2d 26
    Commonwealth v. Kinsinger, Appellant.
    Argued May 25, 1982.
    Samuel M. Mecum, for appellant; Heather J. Mumma, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 26
    Commonwealth v. Lee, Appellant.
    Submitted February 4, 1983.
    Anthony G. Bateman, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Michael J. Wallace is affirmed.


text:
    459 A.2d 26
    Commonwealth v. McNair, Appellant.
    Submitted February 16, 1982.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant; Ronald Eisenberg, Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 27
    Commonwealth v. Morris, Appellant.
    Petition for Allowance of Appeal Denied July 21, 1983.
    Argued February 23, 1982.
    George Henry Newman, for appellant; Garold Edward Tennis, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 27
    Commonwealth v. Robinson, Appellant.
    Argued November 4, 1982.
    Bruce A. Franzel, for appellant; Ronald Eisenberg, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 27
    Commonwealth v. Ryan, Appellant.
    Submitted December 14, 1982.
    John J. Fioravanti, Jr., Assistant Public Defender, for appellant; Michael J. Kane, District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence is affirmed.


text:
    459 A.2d 27
    Commonwealth v. Slaughter, Appellant.
    Petition for Allowance of Appeal Denied Sept. 2, 1983.
    Submitted September 14, 1982.
    Lawrence A. Kalikow, Assistant Public Defender, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   Judgment of sentence is affirmed.


text:
    459 A.2d 28
    Commonwealth v. Wilson, Appellant.
    Submitted May 24, 1982.
    Ronald A. Kovler, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 28
    Horner v. Donley, Appellant. Donley v. Horner. Appeal of Robert E. Donley, Executor.
    Argued February 3, 1982.
    Allen H. Smith, for appellant; Dennis E. Reinaker, for appellees.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   The order of the learned Lancaster County Common Pleas Court Judge Paul A. Mueller, Jr. is affirmed.


text:
    459 A.2d 28
    Lev v. Reading Railroad. Appeal of Sidney Gardner.
    Argued September 8, 1982.
    George M. Bobrin, for appellant; E. Parry Warner, for appellee.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   Judgment affirmed.


text:
    459 A.2d 29
    Stoner v. Dacheux, Appellant.
    Submitted January 26, 1983.
    Barbara O. Stump, for appellant; John D. Miller, Jr., for appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   Order affirmed.


text:
    459 A.2d 29
    Straus, Appellant v. Brind, etc.

      Argued December 7, 1982.
    Jordon R. Pitock, for appellant; Richard P. Abraham, for appellees.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   The order of the court is affirmed.


text:
    April 22, 1983.
    459 A.2d 29
    Balog, et al., Appellants v. Marlowe, et al.
    Submitted June 15, 1982.
    John Joseph Dirienzo, Jr., for appellants; William E. Moot, for appellees.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   The order is affirmed.


text:
    459 A.2d 29
    Commonwealth v. Boner, Appellant.
    Petition for Allowance of Appeal Denied Sept. 2, 1983.
    Submitted February 22, 1982.
    Natale F. Carabello, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.

      Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 30
    Commonwealth v. Bradford, Appellant.
    Submitted January 18, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   Affirmed.

ROWLEY, J., concurred in the result.


text:
    460 A.2d 841
    Commonwealth v. Cortez, Appellant.
    Reargument Denied June 20, 1983.
    Submitted October 27, 1982.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.

      Before HESTER, WICKERSHAM and POPOVICH, JJ.
   Order affirmed.

POPOVICH, J., filed a memorandum dissenting opinion.


text:
    459 A.2d 30
    Commonwealth v. Deshields, Appellant.
    Submitted June 4, 1982.
    William P. James, for appellant; William R. Thompson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   Order affirmed.


text:
    459 A.2d 30
    Commonwealth v. Gilmartin, Appellant.
    Petition for Allowance of Appeal Denied July 21, 1983.
    Argued December 13, 1982.
    Daniel H. Greene, for appellant; David L. DaCosta, Assistant District Attorney, for Commonwealth, appellee.

      Before HESTER, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    459 A.2d 31
    Commonwealth v. Hutson, Appellant.
    Submitted February 15, 1983.
    Hugh Curtis Clark, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., JOHNSON and MONTEMURO, JJ.
   Judgment of sentence is affirmed.


text:
    459 A.2d 31
    Commonwealth v. Kaiser, Appellant.
    Submitted December 7, 1981.
    James R. Protasio, for appellant; Dean N. Liver-more, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The judgment of sentence of the learned Lycoming County Common Pleas Court Judge Thomas C. Raup is affirmed.


text:
    459 A.2d 31
    Commonwealth, Appellant v. Middleton.
    Petition for Allowance of Appeal Granted July 18, 1983.
    Argued January 7, 1983.
    Lee Ruslander, Assistant District Attorney, for Commonwealth, appellant; Joseph S. Nescio, for appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   Order affirmed.


text:
    459 A.2d 31
    Commonwealth v. Morris, Appellant.
    Petition for Allowance of Appeal Denied July 20, 1983.
    Argued October 27, 1982.
    Thomas I. Puleo, for appellant; Mark S. Gurevitz, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 32
    Commonwealth v. Peterson, Appellant.
    Petition for Allowance of Appeal Denied July 20, 1983.
    Submitted October 19, 1982.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 32
    Commonwealth v. Reynolds, Appellant.
    Submitted November 15, 1982.
    Neil Carver, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 32
    Commonwealth v. Riley, Appellant.
    Submitted May 22, 1981.
    John W. Hodge, for appellant; Donald E. Williams, District Attorney, for Commonwealth, appellee.
    Before PRICE, MONTGOMERY and VAN der YOORT, JJ.
   Judgment of sentence affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


text:
    459 A.2d 33
    Commonwealth v. Romeri. Appeal of Thomas J. Calnan, Jr., Court Appointed Counsel.
    Argued December 15, 1981.
    Richard J. Orloski, for appellant; William Platt, District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The order of the distinguished Lehigh County Common Pleas Court Judge David E. Mellenberg is affirmed.

JOHNSON, J., concurred in the result.


text:
    460 A.2d 841
    Commonwealth, Appellant v. Sanders.
    Reargument Denied June 20, 1983.
    Argued December 8, 1981.
    Mark Gurevitz, Assistant District Attorney, for Commonwealth, appellant; John W. Packel, Chief, Appeals, Assistant Public Defender, for appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   The order of the court is affirmed.


text:
    459 A.2d 33
    Commonwealth v. Smith, Appellant.
    Submitted December 15, 1981.
    Richard J. Makoul, for appellant; Michael Vedomsky, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The judgment of sentence of the learned Northampton County Common Pleas Court Judge Alfred T. Williams, Jr. is affirmed.

JOHNSON, J., filed a memorandum dissenting opinion.


text:
    459 A.2d 33
    Commonwealth v. Thompson, Appellant.
    Petition for Allowance of Appeal Denied Sept. 30, 1983.
    Submitted February 23, 1983.
    John A. Halley, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 33
    Commonwealth ex rel. Reeves v. Wagner. Appeal of James Ernest Reeves.
    Submitted March 3, 1983.
    Linda K. Mowson Ludgate, Assistant Public Defender, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   Affirmed.


text:
    459 A.2d 34
    Elfreth Alley Parking Co. v. Feld & Sons, Appellant.
    Argued September 10, 1980.
    Michael Minkin, for appellant; Oscar S. Schermer, for appellee.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Order affirmed.

MONTGOMERY, J., filed a memorandum dissenting opinion.


text:
    459 A.2d 34
    Grimone, et al. v. Motor Coils Manuf. Co., Appellant.
    Argued January 19, 1983.
    Foster S. Goldman, Jr., for appellant; Paul Malizia, appellee, in propria persona.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   Affirmed.


text:
    459 A.2d 34
    Price v. Witt, et al. Appeal of Paul Witt and Marion Witt, Individually and Trading as Witt Home for the Aging.
    Petition for Allowance of Appeal Denied Sept. 2, 1983.
    Argued April 5, 1982.
    William A. Hebe, for appellants; Ronald R. Bolig, for appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment affirmed.


text:
    April 29, 1983.
    459 A.2d 35
    Commonwealth v. Berrier, Appellant.
    Petition for Allowance of Appeal Denied Sept. 7, 1983.

      Argued March 24, 1981.
    Malcolm W. Berkowitz, for appellant; William A. Helm, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.
   Judgment of sentence affirmed.

PRICE, J., did not participate in the decision of this case.


text:
    459 A.2d 35
    Commonwealth v. Bracey, Jr., Appellant.
    Petition for Allowance of Appeal Denied Sept. 7, 1983.
    Submitted September 21, 1982.
    John Francis Lyons, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Order affirmed.

POPOVICH, J., filed a memorandum concurring statement.


text:
    459 A.2d 35
    Commonwealth v. DiSabatino, Appellant.
    Submitted May 24, 1982.
    Charles Nistico, for appellant; Edward J. Weiss, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 35
    Commonwealth v. Eller, Appellant.
    Petition for Allowance of Appeal Denied Aug. 30, 1983.
    Submitted May 25, 1982.
    Joseph V. Furlong, Jr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Judgment of sentence affirmed.


text:
    459 A.2d 36
    Commonwealth v. Gosson, Appellant.
    Submitted February 2, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Ronald Thomas Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   The judgment of sentence of the learned Montgomery County Common Pleas Court Judge Anthony J. Scirica is affirmed.


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    459 A.2d 36
    Commonwealth v. Kivlin, III, Appellant.
    Petition for Allowance of Appeal Denied Sept. 9, 1983.
    Submitted January 6, 1983.
    Edward T. Kivlin, III, appellant, in propria persona; Yram Nedurian, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   Order affirmed.

SPAETH, J., filed a memorandum concurring statement.


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    459 A.2d 36
    Commonwealth v. Lantzy, Appellant.
    Petition for Allowance of Appeal Denied Aug. 3, 1983.
    Submitted January 11, 1982.
    Benjamin S. Blakley, for appellant; Thomas F. Morgan, District Attorney, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Order affirmed.


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    459 A.2d 37
    Commonwealth v. Marshall, Appellant.
    Submitted May 22, 1981.
    John H. Corbett, Jr., Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before PRICE, MONTGOMERY and VAN der VOORT, JJ.
   For the foregoing reasons, judgment of sentence is affirmed.

PRICE, J., did not participate in the consideration or decision of this case.


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    459 A.2d 37
    Commonwealth v. Menginie, Appellant.
    Submitted April 22, 1982.
    Stephen H. Serota, for appellant; David E. Fritchey, Deputy District' Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Order affirmed.

WIEAND, J., filed a memorandum dissenting statement.


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    459 A.2d 37
    Commonwealth v. Singleton, Appellant.
    Submitted June 7, 1982.
    Stephen Gary Welz, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., CAVANAUGH and ROWLEY, JJ.
   The judgment of sentence of the lower court is affirmed.


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    459 A.2d 38
    Commonwealth v. Smith, Appellant.
    Petition for Allowance of Appeal Denied Oct. 13, 1983.
    Submitted March 3, 1983.
    George Howard Eager, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   Affirmed.


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    459 A.2d 38
    Commonwealth v. Stiver, Appellant.
    Petition for Allowance of Appeal Denied Feb. 17, 1984.
    Submitted January 11, 1983.
    John H. Corbett, Jr., Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., POPOVICH and VAN der VOORT, JJ.
   Judgment of sentence affirmed.

POPOVICH, J., concurred in the result.


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    459 A.2d 38
    Commonwealth v. Vasconcellas, Appellant.
    Submitted June 7, 1982.
    James Robert Protasio, Assistant Public Defender, for appellant; Kenneth D. Brown, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   Judgment of sentence affirmed.


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    459 A.2d 39
    Commonwealth v. Woods, Jr., Appellant.
    Submitted December 14, 1982.
    Steven R. Geroff, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence dated October 2, 1981 is affirmed.


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    459 A.2d 39
    Dauer, et al., Appellants v. Kenet, M.D.
    Petition for Allowance of Appeal Denied Sept. 29, 1983.
    Argued October 18, 1982.
    Daniel S. Bernheim, for appellants; Robert J. Spiegel, for appellee.
    Before WIEAND, BECK and MONTEMURO, JJ.
   Order affirmed.


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    459 A.2d 39
    In re Comm. Nat’l Bank. Appeal of Lori J. Morrison.
    Argued January 7, 1983.
    John McCrea, III, for appellant; Thomas C. Zerbe, for participating party.
    Before SPAETH, BECK and JOHNSON, JJ.
   The order of the Court is affirmed.


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    459 A.2d 39
    Ins. Co. of N. America v. Bishop, et al. Appeal of Teamsters Local No. 429 Health and Welfare Fund. Appeal of Insurance Company of North America. Appeal of Connie L. Bishop.
    Petitions for Allowance of Appeal Granted & Denied Oct. 4, 1983.
    Argued January 25, 1983.
    George F. Douglas, Jr., for appellant (at No. 333) for appellee (at No. 337 and 338); James Kenneth Thomas, II, for appellant (at No. 337) and for appellee (at Nos. 333 and 338); Daniel K. Deardoff, for appellant (at No. 338) and for appellee (at No. 333 and 337).
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   Affirmed.


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    459 A.2d 40
    Silverman, etc., Appellant v. School Dist. of Phila.
    Petition for Allowance of Appeal Denied Sept. 22, 1983.
    Argued December 13, 1982.
    Paul J. Senesky, for appellant; Martin Horowitz, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   The judgment dated January 29, 1982 is affirmed.