author: MONTEMURO, Judge:

text:
    547 A.2d 757
    COMMONWEALTH of Pennsylvania v. Valentine DORMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 22, 1988.
    Filed Sept. 8, 1988.

      Michael M. Apfelbaum and Robert B. Sacavage, Sunbury, for appellee.

      Michael D. Suders, Assistant Public Defender, for appellant.
    Before MONTEMURO, POPOVICH and MELINSON, JJ.
   MONTEMURO, Judge:

Appellant, Valentine Dorman, appeals from the judgment of sentence entered by the Court of Common Pleas of Northumberland County following his convictions of rape, statutory rape, corruption of minors and indecent assault. We affirm.

The facts giving rise to this appeal are as follows. Appellant, who at the time of the incident was 38 years of age, offered to give his thirteen year old niece, Tina W., a ride to the raceway near her home. However, instead of taking Tina to the promised destination, appellant, after a brief detour to procure some marijuana, drove Tina down a dirt road to a secluded, wooded area. After proceeding down the road to a dead end, appellant parked the vehicle. Tina testified that appellant came over to her side of the car and began touching her. When he started to “move down,” she said “don’t.” Nevertheless, appellant continued to fondle her and then removed her clothing, as well as his own. Appellant pushed Tina back onto the seat of the car and proceeded to have sexual intercourse with her. Other than the victim’s statement “don’t,” nothing was said during the entire episode. However, on the way back to Tina’s house, appellant instructed her not to mention the incident to anyone or he would tell her father that she smoked marijuana. Tina obeyed and did not tell anyone until several months later, when, believing she was pregnant, she told the school nurse.

Appellant was tried by a jury and convicted of rape, statutory rape, corruption of minors, and indecent assault. Following the denial of his post-trial motions, he was sentenced to a term of seven to fifteen years imprisonment on charges of rape and statutory rape, one to five years for corruption of minors, and six to twelve months for indecent assault, the sentences to run concurrently. Appellant’s motion to modify his sentence was denied. This timely appeal followed.

Appellant’s first allegation of error is that the evidence is insufficient -to sustain the verdict on the charge of rape. We begin our analysis by noting our standard of review when examining a claim that the evidence is insufficient to support a verdict:

The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.

Commonwealth v. Aulisio, 514 Pa. 84, 91, 522 A.2d 1075, 1079 (1987).

The offense of Rape is defined as follows:

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
(3) who is unconscious; or
(4) who is so mentally deranged or deficient that such person is incapable of consent.

18 Pa.C.S.A. § 3121.

Appellant contends that the Commonwealth failed to establish the element of forcible compulsion or threat thereof, which is required in order to sustain his conviction under 18 Pa.C.S.A. § 3121(1) and (2). More specifically, he claims that the only evidence of force in the instant case is the victim’s statement “don’t” when he first started to remove her clothing. He argues that in the absence of evidence that he physically compelled the victim or threatened her with violence, this testimony is not enough to prove the forcible compulsion element of rape beyond a reasonable doubt.

This court has stated that the evidence necessary to support the element of forcible compulsion need only be such as to establish lack of consent and to induce the woman to submit without additional resistance; it is not necessary that the victim be beaten, cry, become hysterical, or be threatened with a weapon for the crime of rape to occur. Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (1982). The requisite degree of force is relative, and depends on the facts and circumstances of each case. Id. However, the courts of this Commonwealth have not always agreed on the amount of force necessary to support a finding that the victim was forcibly compelled to submit to intercourse. This is particularly so where the forcible compulsion involves psychological, moral or intellectual force rather than physical force. The case law dealing with the element of forcible compulsion or threat thereof has been in a constant state of flux. In order to gain a proper perspective on the present state of the law, we must canvass several significant cases which provide a framework from which we can determine whether forcible compulsion or threat of forcible compulsion existed in this case.

In Commonwealth v. Mlinarich, 345 Pa.Super. 269, 498 A.2d 395 (1985), aff'd, 542 A.2d 1335 (1988), the appellant was convicted of raping a fourteen year old daughter of one of his neighbors. Appellant and his wife had taken custody of the child following her release from a juvenile detention home, where she had been committed by her family in order to “teach her a lesson” after her admission to the theft of her brother’s ring. On several occasions appellant fondled the victim, requested her to undress, and engaged in sexual intercourse with her. When the victim objected to appellant’s conduct, appellant threatened to send her back to the juvenile home if she failed to comply with his requests. An en banc panel of this court reversed the trial court and held that rape, as defined by the legislature, “requires actual physical compulsion or violence, or a threat of physical compulsion or violence, sufficient to prevent resistance by a person of reasonable resolution.” Id., 845 Pa.Superior Ct. at 286, 498 A.2d at 403. Applying that definition to the facts of the case, this Court found that a threat to withdraw custodial care and return a juvenile to a detention home was not “forcible compulsion” sufficient to constitute the crime of forcible rape.

In 1986, our supreme court decided the landmark case of Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), which rejected our conclusion in Mlinarich that the term forcible compulsion is tantamount to physical compulsion or violence. Id., 510 Pa. at 553 n. 12, 510 A.2d at 1225 n. 12. See also Commonwealth v. Stambaugh, 355 Pa.Super. 73, 512 A.2d 1216 (1986). In Rhodes, the defendant lived across the street from the 8 year old victim. The victim had known the defendant for approximately three (3) years. The defendant asked the victim if she wanted to go somewhere and then led her to an empty room on the second floor of an abandoned building near a playground. When the defendant began to touch her the victim told him to “stop.” Nevertheless, the defendant proceeded to have both vaginal and anal intercourse with the child. The child was taken to the hospital by her mother where tests revealed the presence of semen in her vagina and rectum. In addition, she was treated for a tear in the tissue between her rectum and vagina. In an authoritative opinion authored by Justice Larsen, a majority of the supreme court held that the evidence was sufficient to support a finding of forcible compulsion or threat thereof. After a lengthy analysis of the legislative history behind 18 Pa. C.S.A. § 3121 (rape), 18 Pa.C.S.A. § 3122 (statutory rape) and 18 Pa.C.S.A. § 3123 (involuntary deviate sexual intercourse), and a discussion of the common law offense of rape, the court held that the phrase “forcible compulsion” “connotes more than the exercise of sheer physical force or violence.” As used by the legislature, the court determined that the term encompassed “the act of using superior force — physical, moral, psychological, or intellectual — to compel a person to do a thing against that person’s volition and/or will.” Id. 510 Pa. at 553, 510 A.2d at 1225. In determining whether the evidence is sufficient within the above definition to prove beyond a reasonable doubt that the accused engaged in sexual intercourse by forcible compulsion or by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, the court directed that we follow a totality of the circumstances approach, and set forth a list of factors to aid us in this determination. The factors to be weighed include, but are not limited to:

[t]he respective ages of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress.

Id., 510 Pa. at 556, 510 A.2d at 1227. The court went on to conclude that the facts of the case were sufficient to establish the element of forcible compulsion and threat of forcible compulsion. In so concluding, the court reasoned:

There is an element of forcible compulsion, or the threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, inherent in the situation in which an adult who is with a child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. This is especially so where the child knows and trusts the adult. In such cases, forcible compulsion or the threat of forcible compulsion derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult (“prevent resistance”), without the use of physical force or violence or the explicit threat of physical force or violence. As Judge Cavanaugh noted in his dissenting opinion in this case, “the illicit commands of this twenty year old [man] in an isolated and abandoned room were ... an imperative which gave the [eight year old] child victim no alternative but submission to appellant’s corrupt scheme.”

Id., 510 Pa. at 557-558, 510 A.2d at 1227.

After Rhodes, there seemed to be no question that psychological, moral or intellectual force could support a finding of forcible compulsion. However some uncertainty was cast upon this proposition when the Pennsylvania Supreme Court granted the Commonwealth’s petition for allowance of appeal in the Mlinarich case and considered the question of whether the accused’s threat to send the victim back to the juvenile home constituted “forcible compulsion” or “threat of forcible compulsion that would prevent resistance by a person of reasonable resolution” within the meaning of 18 Pa.C.S.A. § 3121(1) and (2). See Commonwealth v. Mlinarich, 542 A.2d 1335 (1988). Three justices concluded that such a threat was not sufficient to support a conviction for rape and joined in an opinion in support of affirmance of this Court’s en banc decision. Chief Justice Nix, author of the Opinion in Support of Affirmance, concluded that “the term ‘forcible compulsion’ includes both physical force as well as psychological duress [but] rejected] the contention that ‘forcible compulsion’ was intended by the General Assembly, in this context, to be extended to embrace appeals to the intellect or the morals of the victim.” Id. at 1338. At only one point throughout the entire opinion did Chief Justice Nix cite to Rhodes, and that was merely to support the proposition that “psychological coercion ... may overpower the will to resist as effectively as physical force.” Id. at 1342. Justice Larsen, in an Opinion in Support of Reversal, relied almost exclusively on Rhodes to support his position, remarking that:

Rhodes is the law of this Commonwealth, and is unquestionably dispositive in this case; Rhodes compels the conclusion that Mlinarich engaged in sexual intercourse with the child victim without her consent and by forcible compulsion or its threat. The Opinion in Support of Affirmance does not attempt to distinguish Rhodes, nor does it attempt to explain in any way why it is not controlling. Instead, the three members of this Court in support of affirmance simply ignore Rhodes and pretend that it does not exist. Rhodes does exist, however, and remains the law of the Commonwealth.

542 A.2d 1335 in Support of Reversal at 17, filed May 26, 1988. Because the three justices who supported affirmance in Mlinarich adopted an analysis of the statutory scheme which appears to be somewhat inconsistent with the analysis in Rhodes, and because they declined to apply the test outlined in Rhodes to the facts in Mlinarich, we are inclined to believe that they may no longer support much of the reasoning and analysis employed two years earlier in Rhodes. However, our obligation as an appellate tribunal is to adhere to principles of stare decisis and apply what we perceive to be the law to the facts of a given case. Mlinarich was decided by an equally divided supreme court. Consequently, the effect of that decision was to affirm the result reached by the en banc Superior Court below. However, the decision of the supreme court did not have the effect of affirming our reasoning in Mlinarich. In addition, because the supreme court was equally divided in Mlinarich, the reasoning used by the supreme court has no precedential value and is merely persuasive in nature. See Commonwealth v. Covil, 474 Pa. 375, 378 A.2d 841 (1977) (analysis adopted by three of the six Justices of supreme court had no precedential value and is only considered for it persuasive value in subsequent cases). Consequently, we are constrained to agree with Justice Larsen that Rhodes is indeed the law of this Commonwealth and will remain so until overruled. Moreover, we believe that Rhodes is dis-positive of the present case.

Returning to the facts of the case at bar and applying the test enunciated in Rhodes, we find that the evidence is sufficient to prove beyond a reasonable doubt that appellant had sexual intercourse with his thirteen (13) year old victim by forcible compulsion and by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution in the victim’s position. The victim recounted the incident as follows:

Q. What happened at the dirt road, Tina?
A. Well, he got out and came over to my side and he opened the door.
Q. Tina, I know it is tough but you will have to explain to the jury what happened. Like I said, just stop us if you want to take a break at all. Could you explain to the jury what happened?
A. Started touching me.
Q. Would you tell the jury where he started to touch you?
A. In the front.
Q. Then what happened?
A. Then he started to move down.
Q. Did you say anything while he did this?
A. I said “don’t.”
Q. What happened after you said don’t?
A. He didn’t say anything, he just kept on doing it.
Q. Then what happened, Tina?
A. He removed my clothes.
Q. Did he have his clothes on at that point?
A. No, he started taking his off.
Q. Could you tell the jury what happened then?
A. Well, he pushed me back, then he got on top of me and he started, he stuck his penis in my vagina, then after he was done he got up and he got dressed, then I got up and I got dressed, then he came around to the other side of the car and got in and I shut my car door, then we took off.
Q. Did he say anything to you?
A. No, not then.
Q. Is this out in the woods, Tina?
A. Yeah.
Q. What happened after that?
A. Then he took me home.
Q. Did he say anything on the way home?
A. No, not then. But when he came to the speedway he said I shouldn’t tell anybody.
Q. Why is that?
A. Because he said that he would tell my dad that I smoked Marijuana.

N.T. March 17, 1987 at 23-25.

Applying the factors outlined in Rhodes to the foregoing evidence convinces us that the victim in this case submitted to sexual intercourse under forcible compulsion or threat thereof that would prevent resistance from a person of reasonable resolution. The thirteen (13) year old victim was driven down a deadend dirt road to a remote wooded area. Despite the victim’s protest, appellant, who was twenty-five (25) years the victim’s senior, disrobed her, pushed her down on the seat of the car and had intercourse with her. Although there was no evidence that the victim struggled or otherwise resisted, other than saying “don’t,” this fact does not negate a finding of forcible compulsion. In light of the remote locality where the incident occurred, the absence of more strenuous resistance is easily understandable. The victim cannot be expected to cry out or struggle vigorously when such action may have the effect of escalating the danger already present in the volatile circumstances of an imminent rape. More importantly, appellant, who was the victim’s uncle, occupied a position of authority and trust such that the victim would feel coerced to submit to his demands out of a sense of duty or obedience. While the force used to overcome the will of the victim in this case was to a large extent subtle and psychological, it nonetheless satisfies the element of forcible compulsion necessary to sustain appellant’s conviction for rape. See Commonwealth v. Poindexter, 372 Pa.Super. 566, 573, 539 A.2d 1341, 1344 (1988). Viewing these facts and the inferences to be drawn from them in the light most favorable to the Commonwealth, we believe that the jury could reasonably have concluded that the force or threat of force used was sufficient to establish that the will of the victim had been overcome under the totality of circumstances involved in this case. Id.; Commonwealth v. Williams, supra 294 Pa.Super. at 97, 439 A.2d at 768 (1982). Accordingly, we conclude that the trial court correctly rejected appellant’s contention that the evidence was insufficient to support the jury’s verdict.

Appellant next claims that the trial court erred by instructing the jury that they could draw an adverse inference against appellant for failing to call a potential alibi witness when the witness was residing in the state of New York and failed to obey a subpoena. Appellant’s defense at trial was an alibi defense. At trial appellant took the stand and testified that on August 10, 1985, at the time that the alleged rape took place, he was delivering a car to his cousin,, Darvin Carter, in New York. Appellant also testified that his cousin was not present to testify despite the fact that he had subpoenaed him in New York. Following closing arguments wherein both the prosecutor and defense attorney referred to the other side’s failure to procure certain witnesses, the trial court, sua sponte, gave the following instruction upon charging the jury:

There has been an issue raised as to the missing witness or witnesses. That question raises the question of what weight, if any, you would give to the fact that both the Commonwealth and the defendant failed to call possible witnesses. You may infer that a possible witness would have given testimony unfavorable to the party who failed to call them. If it was natural and reasonable to expect that party to call them, and there is no satisfactory explanation for why the party failed to call them. You should consider this along with all relevant facts and circumstances in determining this case. The inference that a potential witness’s testimony would have been unfavorable to the party who failed to call them is an inference that you may draw. It is not an inference that you are required to draw. Note that an inference is merely that testimony might have been unfavorable, not that it would have been unfavorable. The inference is not a substitute for facts that you do believe.

N.T. March 17, 1987 at 168-169 (emphasis added). After the court concluded its charge to the jury, defense counsel objected to the missing witness instruction and moved for a mistrial on grounds that an instruction on missing witnesses is only proper when the witness is within the exclusive control of a party. Id. at 179. We find that the trial court’s instruction on missing witnesses was appropriate under the circumstances of this case.

The instruction on missing witnesses is essentially a comment on the evidence; the inference itself is the natural inference that a party’s failure to call a witness in certain circumstances suggests that he was afraid to do so, which in turn suggests that the testimony would have been unfavorable. See Downey v. Weston, 451 Pa. 259, 266, 301 A.2d 635, 640 (1973). While there has been a substantial number of formulations of the rule purporting to encompass all of the situations where an instruction on missing witnesses is proper, the most comprehensive attempt to state the rule and exceptions occurred in Commonwealth v. Harley, 275 Pa.Super. 407, 418 A.2d 1354 (1980):

The missing witness rule provides that a negative inference may be drawn from the failure of a party to call a particular witness who was in his control. However, each of the following circumstances represents an exception to that rule:
1. The witness is so hostile or prejudiced against the party expected to call him that there is a small possibility of obtaining unbiased truth;
2. The testimony of such a witness is comparatively unimportant, cumulative, or inferior to that already presented;
3. The uncalled witness is equally available to both parties;
4. There is a satisfactory explanation as to why the party failed to call such a witness;
5. The witness is not available or not within the control of the party against whom the negative inference is desired; and,
6. The testimony of the uncalled witness is not within the scope of the natural interest of the party failing to produce him.

Id., 275 Pa.Superior Ct. at 413, 418 A.2d 1357. The foregoing rule, however, was by no means intended to constitute an exhaustive list of the situations where a missing witness instruction is proper. The propriety of such an instruction depends on the facts of each particular case. As we have said “the reasons why certain evidence which might naturally be looked for, may not be produced, are so many and so various, that the inference to be drawn from failure to produce requires careful handling____ But it is a legitimate instrument in the investigation of truth and a liberal discretion in its use must be allowed the trial judge.” Commonwealth v. Trignani, 185 Pa.Super. 332, 341, 138 A.2d 215, 219-220 (1958). Indeed, Pennsylvania cases acknowledge that a missing witness instruction may be proper where a party fails to produce a witness, who, because of his or her relationship with that party, would normally be expected to testify favorably in the parties’ behalf. See e.g. Hall v. Vanderpool, 156 Pa. 152, 26 A. 1069 (1893); Commonwealth v. Black, 186 Pa.Super. 160, 142 A.2d 495 (1958). In Commonwealth v. Wright, 444 Pa. 536, 282 A.2d 323 (1971), our supreme court was faced with a situation similar to the present one. In Wright, the defendant and two others, one Marion Wilson and Robert McSwain, were charged with murder. At trial the defendant took the stand and testified that on the night in question he, McSwain and Wilson were in the company of four other teenagers at the time of the murder. None of these witnesses testified at trial. Our supreme court framed the question as follows: “If a defendant raises an alibi and testifies as to the existence of named alibi witnesses who know him personally, and if these witnesses are not called, is it fair for the jury to infer that their testimony would be adverse to the defendant?” Id., 444 Pa. at 541, 282 A.2d at 325. In finding that such an inference could properly be drawn, the court remarked:

Since the inference is permissible, it would have been error for the court to instruct the jury the other way, i.e., that the failure to call the named witnesses could not be considered in evaluating the credibility of appellant’s alibi. Consequently, even though the inference is only permissible, courts are permitted to comment on the possibility of drawing such an inference just as courts are permitted to comment on every other factor which a jury is permitted to consider.
However, we must emphasize, at this point, that while it is permissible for a jury to draw adverse inferences as to the credibility of a defendant’s alibi from his failure to call persons he identifies as eye-witnesses, such inferences are not mandatory. Furthermore, such inferences do not affect the presumption of innocence. The Commonwealth must still prove that the defendant committed the crimes alleged beyond a reasonable doubt.
Admittedly, if the jury chooses to draw an adverse inference from a defendant’s failure to call named alibi witnesses, his case may be affected because his alibi is not believed. But the credibility of defendant’s testimony is always something which he must consider before he takes the stand.
Nevertheless, since any inferences to be drawn are permissible, not mandatory, if a court chooses to charge on this issue, it must be careful not to overemphasize it so as to mislead the jury into believing the inference to be mandatory rather than only permissible.

Id., 444 Pa. at 541-542, 282 A.2d at 325.

In the case at bar appellant’s cousin, who he was allegedly delivering a car to on the night in question, was a resident of New York. At trial, appellant testified that he had subpoenaed his cousin in New York but that he refused to appear. Appellant argues that because his alibi witness was equally available to the Commonwealth by way of subpoena, the trial court erred in giving the missing witness instruction. However, this argument ignores several important considerations. First, “availability” is not determined merely from a witness’s physical presence or amenability to subpoena but also depends on the witness’s relationship to the party and the nature of the expected testimony. Both the Supreme Court of Pennsylvania and this Court have applied the missing witness rule even though the witness was technically available to the party seeking the advantage of the inference. See Commonwealth v. Leonard, 499 Pa. 357, 453 A.2d 587 (1982); Commonwealth v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974); Wright, supra; See also Commonwealth v. Bright, 361 Pa.Super. 261, 522 A.2d 573 (1987) (reaffirming the reasoning used in Wright when the defendant raises an alibi defense and testifies as to witnesses which he claims can support it); Commonwealth v. Rompilla, 250 Pa.Super. 139, 378 A.2d 865 (1977). For the negative inference to be inappropriate, as appellant argues, the missing witness must not just be “available” to the Commonwealth, but equally so. Secondly, the Commonwealth should not be required to subpoena an alibi witness, who, because of his relationship with the defendant, would naturally be expected to testify favorably toward the defendant. Obviously, it would not be in the best interest of the Commonwealth to procure such a potentially hostile witness. On the other hand, fear of criminal punishment and the disgrace of conviction are strong motivational factors for a criminal defendant to make certain that a witness who can exonerate him appears at trial. Our supreme court implicitly recognizéd these practical considerations in Commonwealth v. Leonard, supra. In Leonard, the defendant, who had been convicted of murder, alleged that his trial counsel was ineffective in failing to object to the prosecutor’s argument to the jury that they could draw an adverse inference from the defendant’s failure to present several alibi witnesses who he testified could support his alibi. Citing both Wright and Johnson, the Pennsylvania Supreme Court rejected the defendant’s claim of ineffectiveness, reasserting the propriety of such an inference where the defendant fails to produce a named alibi witness at trial:

This Court has held that where an accused raises an alibi defense and names a person who it is claimed can support the defense, but fails to call him as a witness, it is permissible for the jury to infer that the testimony of the absent witness would not have been favorable to the accused. Because it was not improper for the prosecuting attorney to urge the jury to draw the inference that the testimony of the [defendant’s] alleged alibi witnesses would not have corroborated his alibi, counsel was not ineffective for not interjecting an objection to the prosecutor’s remark.

Id. 499 Pa. at 364-365, 453 A.2d at 590 (citations omitted). While appellant relies on the equal availability exception to the missing witness rule set forth in our decision in Commonwealth v. Harley, supra, we note that Harley involved the Commonwealth’s failure to present fact witnesses rather than the defendant’s failure to call named alibi witnesses. Moreover, Leonard was decided approximately two years after Harley. Thus our supreme court was well aware of the equal availability exception to the missing witness rule, but chose not to apply that exception in Leonard, even though the defendant’s alibi witnesses would have been made available to the Commonwealth through the inclusion of their names and addresses in the notice of alibi defense. See Pa.R.Crim.P. 305(C)(1)(a). Consequently, we believe that our supreme court implicitly rejected the applicability of the equal availability exception to cases where the defendant asserts an alibi defense and testifies to named alibi witnesses who can support that defense.

Arguably, the fact that the witness is outside the court’s subpoena power should militate against drawing an adverse inference from his absence because this constitutes either a reasonable excuse for failing to present the witness or renders the witness unavailable to the party against whom the inference is sought. The logic behind disallowing the inference when a witness is truly beyond a party’s control is that the underlying basis for permitting the inference crumbles. In other words, when the witness is not within a party’s control, there is no basis for inferring that he was afraid to call the witness and consequently no basis for inferring that the witness’s testimony would be unfavorable. However, the mere fact that appellant subpoenaed his out-of-state cousin does not mean that it was beyond his control to compel his presence at trial. Aside from the fact that one would expect a relative who possessed exculpatory evidence to come forward of his own volition, appellant had at his disposal a means by which he could have compelled his cousin’s presence. The Uniform Act to Secure Attendance of Witness , which has been enacted in both Pennsylvania and New York, “provides a speedy and effective procedure, through the use of a certificate issued under seal of court, to summon witnesses living in another state.” U.S. ex rel. Drew v. Meyers, 327 F.2d 174, 182 (3d.Cir.1964). Because appellant had sufficient means to compel the presence of his cousin to appear if he chose not to appear, and there is no evidence that appellant sought to avail himself of this procedure, we find that the witness was peculiarly within appellant’s knowledge and reach and that he has not presented a reasonable excuse for failing to present this witness. Accord State v. Ivory, 609 S.W.2d 217 (Mo.App. 1980) (wherein the court found a missing witness instruction proper even though defendant’s alibi witnesses, who were family members, were located out of state); Commonwealth v. Griffin, 243 Pa.Super. 115, 364 A.2d 477 (1976) (unavailability under former testimony exception to hearsay rule established by Commonwealth’s good faith attempt to procure witness under Uniform Act to Secure Attendance of Witness. 19 Pa.S.A. § 622.2). Consequently, we hold that where a defendant takes the stand and testifies that at the time of the alleged crime he was in the presence of his cousin, who is situated out of state, and his cousin fails to appear at trial, the trial court may properly give a neutral missing witness instruction to the jury, explaining the nature of the inference to the jury but leaving the jury free to determine whether to draw the inference and against whom to draw it. See Commonwealth v. Bruce, 433 Pa. 68, 249 A.2d 346 (1969); Packel, Pennsylvania Evidence, § 419.3 (1987).

We believe that the trial court’s instruction in this case did not overemphasize the negative inference to be drawn from a party’s failure to present a witness, but merely informed the jury that it could draw the inference against either the defendant or the Commonwealth if it chose to do so. In light of the fact that both the prosecutor and defense counsel alluded to missing witnesses in their closing arguments, a diluted missing witness instruction was proper in order to guide the jury in its deliberations. See N.T. March 17, 1987, at 179.

Appellant’s final contention is that the trial court erred in failing to appoint new counsel for him after he dismissed his counsel during the sentencing hearing. However, appellant failed to specifically raise this issue in his petition to modify sentence. The purpose of a petition to modify sentence is to provide the sentencing court with the first opportunity to modify its sentence and to correct errors which may have occurred during sentencing. Commonwealth v. Cottman, 327 Pa.Super. 453, 476 A.2d 40 (1984). All claims regarding the propriety of sentence or irregularities in the proceedings must be raised in a petition to modify sentence or they are waived for purposes of appeal. See Pa.R.Crim.P. 1410; Commonwealth v. Duden, 326 Pa.Super. 73, 473 A.2d 614 (1984); Commonwealth v. Middleton, 320 Pa.Super. 533, 467 A.2d 841 (1983). Because appellant, who was represented by new counsel at the time he filed his petition for modification of sentence, failed to raise this contention in his petition, we find the issue waived. Accordingly, the trial court’s judgment of sentence is affirmed.

Judgment of sentence affirmed.

      . Four justices, representing a majority of the court, supported both the test espoused in Rhodes and the result reached in the case. Justices Flaherty, Hutchinson and Papadakos joined in the Opinion authored by Justice Larsen..

      . Former Justice Hutchinson did not participate in the consideration of Mlinarich.

      . Pa.R.Crim.P. 1119(b) requires specific objections to the court’s charge before the jury retires to deliberate in order to preserve the challenge for appellate review.

      . Although the court in Wright found the inference proper under the facts of the case, it went on to reverse because it found that the missing witness charge was overemphasized by the court.

      . Act of June 23, 1941, P.L. 147 § 1 et seq., 19 P.S. § 622.1 et seq.

      . While our holding may, at first glance, appear to conflict with some of our reasoning in Commonwealth v. Boyd, 356 Pa.Super. 302, 514 A.2d 623 (1986), that case is distinguishable from the present one in at least two respects. In Boyd, it was not the defendant who injected the name of an alibi witness who failed to testify, but an alibi witness testifying on behalf of defendant who stated that he saw appellant in the company of a named woman on the night of the alleged incident. Moreover, the instruction in that case was not neutral. Unlike the present case, the jury in Boyd was not permitted to determine if, and against whom the inference should operate. Instead, because the Commonwealth had presented all witnesses who would be expected to testify on its behalf, the court specifically related the instruction to the defendant’s failure to produce the second alibi witness.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    547 A.2d 766
    COMMONWEALTH of Pennsylvania v. Edward BEVERLY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 31, 1988.
    Filed Sept. 9, 1988.

      Larry D. Feldman, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, WATKINS and CERCONE, JJ.
   CERCONE, Judge:

This appeal is from a judgment of sentence for robbery, simple assault, theft and possession of an instrument of crime. Appellant, Edward Beverly, now raises a variety of allegations of trial court error and prosecutorial misconduct on appeal. After careful review, we reject these claims and affirm the judgment of the lower court.

The following is a brief summation of the lower court’s findings of fact. On June 10, 1984, appellant entered the Foxy Lounge (hereinafter the lounge) and asked Deborah Garrett, an employee of the lounge, for a quart of beer. Appellant refused to pay for the beverage and left the premises. Later, when Ms. Garrett was temporarily away from the bar area, appellant returned, removed a quart of beer from the refrigerator and proceeded to leave the lounge.

Approximately ten minutes later, appellant returned wearing a stocking mask and carrying a gun. He approached Ms. Garrett, now tending bar, held the gun within one foot of her head and demanded money. Despite the stocking mask, Ms. Garrett recognized appellant as the individual who previously had asked for the quart of beer. With the money from the cash register in hand, appellant left the lounge.

Another eyewitness, Michael Alexander, identified appellant. Alexander, a former employee of the lounge, had seen appellant in the bar and in the surrounding community on numerous occasions prior to the robbery. Appellant was also recognized by Theresa Baldwin. Ms. Baldwin saw appellant running toward her without the stocking mask after he had left the bar.

Appellant first contends that the lower court erred regarding Michael Alexander’s view of a lineup held prior to the preliminary hearing. While the lower court correctly granted his request for a lineup, appellant contends, the judge erred in refusing his request that the lineup participants don stocking masks. We disagree. Like the court below, we are not aware of any case that requires such a lineup. In fact, as we declared in Commonwealth v. Lark, 316 Pa.Super. 240, 462 A.2d 1329 (1983), aff'd, 505 Pa. 126, 477 A.2d 857 (1984), a criminal defendant does not have a constitutional right to a lineup at all. Our Supreme Court has decreed that only in those cases where an identification lacking a strong indicia of reliability is the sole evidence against the defendant should a defendant’s timely request for a lineup be granted. Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979).

In the case at hand, the pertinent witness (Alexander) was familiar with appellant. Additionally, the lower court record reveals that Alexander had ample opportunity to observe and recognize appellant during his first visit to the lounge as well as during the robbery. Thus, even if appellant was denied a lineup, this would not have been reversible error because the witness’ in court identification was based on independent evidence. See Commonwealth v. Butler, 354 Pa.Super. 533, 512 A.2d 667 (1986). We cannot, therefore, find that appellant’s denied request justifies the grant of a new trial.

Second, appellant argues that the court erred in denying his motion to suppress a photographic identification by Ms. Garrett. On the night of the crime, Ms. Garrett viewed a set of photographs provided by police. Ms. Garrett was unable to identify appellant among the pictures provided. Additionally, the relevant police detective was unable to ascertain whether or not appellant’s photo had been among those shown to Ms. Garrett because the collection had not been maintained. At a later date, however, Ms. Garrett identified appellant from a different book of photographs. Appellant, without providing a legal justification, argues that because the Commonwealth did not maintain a record of the first photographs shown to Ms. Garrett, a new trial should be granted. We cannot agree.

Prior failures to identify, and even misidentifications, do not affect the admissibility of later, independently based identifications. See Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982); Commonwealth v. Davis, 313 Pa.Super. 355, 459 A.2d 1267 (1983). Ms. Garrett’s identification of appellant was independently based on her observation of him during the robbery and as a person she knew from the vicinity.

Lastly, appellant posits that the lower court erred in its instruction to the jury, suggesting that the court somehow lent its opinion regarding the credibility of appellant. Reviewing the lower court record, this argument also fails. While the court did make supported references to evidence, it correctly gave no indication of its opinion of appellant’s guilt or innocence, and clearly noted that the jury was to determine the effect of this evidence. See Commonwealth v. Leonhard, 336 Pa.Super. 90, 485 A.2d 444 (1984) (even “harsh” comments of the trial court, referring to defendant’s evidence as “conjecture”, did not require a new trial).

We find, after reviewing the party’s briefs and the record on appeal, that the lower court’s discussion and resolution of appellant’s arguments regarding prosecutorial misconduct, identification testimony, collateral testimony, police testimony regarding a hold-up memorandum and ineffective assistance of counsel is adequate. Thus, we affirm on the basis of the lower court’s opinion with regard to these issues.

Accordingly, appellant’s judgment of sentence is affirmed.


author: WIEAND, Judge:

text:
    547 A.2d 768
    COMMONWEALTH of Pennsylvania v. Stephen Allen CONN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 14, 1988.
    Filed Sept. 9, 1988.

      John R. Gailey, Jr., York, for appellant.
    Mark A. Bellavia, Assistant District Attorney, York, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

Stephen Allen Conn was tried nonjury and was found guilty of possession of a controlled substance with intent to deliver. Post-trial motions were denied, and Conn was sentenced to serve a term of imprisonment for not less than eight months nor more than twenty months. On direct appeal, he argues that evidence obtained as a result of a warrantless entry of his home by police should have been suppressed. It should have been suppressed, he argues, because there were not exigent circumstances sufficient to excuse the police from obtaining a warrant and because the police failed to comply with the “knock and announce” rule before entering. Because we conclude that Conn’s Fourth Amendment right to be free from unreasonable searches and seizures was violated in this case, we reverse and remand for a new trial.

On November 27, 1985, Troopers Lokhaiser and Daryman were engaged in the surveillance of a vehicle owned by Adalberto and Gloria Rodriguez, which had been parked outside appellant’s trailer-home in Jackson Township, York County. The State Police had been given information by two confidential informants that the Rodriguezes would be delivering drugs to appellant’s residence. While the Rodriguezes were inside appellant’s home, Trooper Daryman went to the nearby office of a district justice in order to meet with and to obtain the assistance of local police. At the district justice’s office, Sergeant Brown, of the Jackson Township Police Department, told Trooper Daryman that on a visit to appellant’s home about a year earlier, he had observed a police scanner in the living room. Thereafter, Trooper Daryman and Sergeant Brown returned to the location of appellant’s home and joined Trooper Lokhaiser in the continuing surveillance of appellant’s residence. When the Rodriguezes departed, the three policemen followed. After the Rodriguez vehicle had travelled about a mile and a half, it was stopped and searched. Police found in the vehicle a quantity of cocaine and cash in the amount of fifteen hundred ($1,500) dollars. At this point, Sergeant Brown suggested to Lokhaiser for the first time the possibility that appellant had a police scanner in his home. Fearing that appellant might have intercepted police radio transmissions which contained information about the stopping of the Rodriguez vehicle and would attempt to destroy other contraband, the police proceeded immediately to appellant’s residence. There they knocked on the door, announced their presence, and immediately entered through an unlocked door without waiting for a response to their knock. Once inside, the police observed appellant in the process of cutting and bagging cocaine. Appellant was arrested immediately and advised of his Miranda rights. A search warrant was thereafter obtained from the district justice. Appellant, faced with the search of his home, waived his rights and told the police that he had purchased an ounce of cocaine from the Rodriguezes, from whom he had been buying drugs for several months.

A pre-trial motion to suppress the evidence seized by the police was heard and denied; and the evidence was used by the Commonwealth at appellant’s trial.

The law with respect to warrantless searches and seizures has been stated by this Court as follows:

“[a]s a general rule a search or seizure without a warrant is deemed unreasonable for constitutional purposes. Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022 [2031], 29 L.Ed.2d 564.” Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101 (1978). However, the realities and practicalities of law enforcement dictate that where exigent circumstances exist, the warrant requirement is excused. United States v. Velasquez, 626 F.2d 314 (3rd Cir.1980); Holzer, supra. Exigent circumstances arise where the need for prompt police action is imperative, either because evidence is likely to be destroyed, id., or because there exists a threat of physical harm to police officers or other innocent individuals. Velasquez, supra.

Commonwealth v. Hinkson, 315 Pa.Super. 23, 27, 461 A.2d 616, 618 (1983). See also: Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979); Commonwealth v. Cockfield, 431 Pa. 639, 246 A.2d 381 (1968); Commonwealth v. Ehrsam, 355 Pa.Super. 40, 512 A.2d 1199 (1986). It is clear, however, that rules governing police action without a warrant will be narrowly interpreted in cases involving a person’s home. In this regard, the United States Supreme Court has said:

The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms____ In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.

Payton v. New York, 445 U.S. 573, 589-590, 100 S.Ct. 1371, 1381, 63 L.Ed.2d 639, 653 (1980), quoted in United States v. Velasquez, 626 F.2d 314, 317 (3d Cir.1980). Cf. Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1220 (1977) (“Upon closing the door of one’s home to the outside world, a person may legitimately expect the highest degree of privacy known to our society.”); Commonwealth v. Schaeffer, 370 Pa.Super. 179, 209, 536 A.2d 354, 369 (1987) (same).

Terms like “exigent circumstances” or “urgent need” are useful in underscoring the heavy burden on the police to show that there was a need that could not brook the delay incident to obtaining a warrant, and that it is only in the light of those circumstances and that need that the warrantless search meets the ultimate test of avoiding condemnation under the Fourth Amendment as “unreasonable.”

Dorman v. United States, 140 U.S.App.D.C. 313, 320, 435 F.2d 385, 392 (1970) (en banc). See: Commonwealth v. Williams, 483 Pa. 293, 298, 396 A.2d 1177, 1179 (1978), cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980). See also: United States v. Blasco, 702 F.2d 1315, 1325 (11th Cir.1983), cert. denied, 464 U.S. 914, 104 S.Ct. 275, 78 L.Ed.2d 256 (1983) (exigent circumstances exist where societal costs, such as danger to police or risk that evidence will be destroyed, outweigh reasons for prior recourse to a magistrate); United States v. Flickinger, 573 F.2d 1349, 1355 (9th Cir.1978), cert. denied, 439 U.S. 836, 99 S.Ct. 119, 58 L.Ed.2d 132 (1978), overruled on other grounds, United States v. McConney, 728 F.2d 1195 (9th Cir.1984) (“The term ‘exigent circumstances’ ... refers to a situation where the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action.”). “All decisions made pursuant to the exigent circumstances exception [to the warrant requirement] must be made cautiously, for it is an exception which by its nature can very easily swallow the rule unless applied in only restricted circumstances.” Commonwealth v. Daniels, 280 Pa.Super. 278, 286, 421 A.2d 721, 725 (1980). This Court has further said that:

[a]n inquiry to determine whether exigent circumstances exist involves a balancing of the individual’s right to be free from unreasonable intrusions against the interest of society in investigating crime quickly and adequately and preventing the disappearance of evidence necessary to convict criminals. United States v. Rubin, 474 F.2d 262 (3rd Cir.1973), cert. denied 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973); United States v. Hayes, 518 F.2d 675 (6th Cir.1975). It requires an examination of all of the surrounding circumstances in a particular case, Commonwealth v. Harris, 429 Pa. 215, 239 A.2d 290 (1968). These circumstances will vary from case to case and the inherent necessities of the situation at the time must be scrutinized. Rubin, at 268.

Commonwealth v. Hinkson, supra, 315 Pa.Super. at 27-28, 461 A.2d at 618.

“[T]he possibility that evidence will be destroyed by defendants who have discovered government surveillance of their activities often has been recognized as a sufficient exigency to justify warrantless entry.” United States v. Edwards, 602 F.2d 458, 468 (1st Cir.1979). Cf. United States v. Guidry, 534 F.2d 1220 (6th Cir.1976) (exigent circumstances established where totality of circumstances disclosed that efforts to destroy evidence were in progress); United States v. Blake, 484 F.2d 50 (8th Cir.1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974) (exigent circumstances exist where totality of circumstances reveal an imminent threat of destruction of evidence). The United States Court of Appeals for the Third Circuit, in United States v. Rubin, 474 F.2d 262 (3d Cir.1973), cert. denied, 414 U.S. 833, 94 S.Ct. 173, 38 L.Ed.2d 68 (1973), formulated the following test to determine when a law enforcement officer’s belief that evidence might be destroyed rises to the level of exigent circumstances:

When Government agents, however, have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified. The emergency circumstances will vary from case to case, and the inherent necessities of the situation at the time must be scrutinized. Circumstances which have seemed relevant to courts include (1) the degree of urgency involved and the amount of time necessary to obtain a warrant, compare United States v. Pino, 431 F.2d 1043, 1045 (2d Cir.1970), with Niro v. United States, 388 F.2d 535 (1st Cir.1968); (2) reasonable belief that the contraband is about to be removed, United States v. Davis, 461 F.2d 1026, 1029-1030 (3d Cir.1972); Hailes v. United States, 267 A.2d 363 (D.C.C.A.1970); (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought, United States v. Pino, 431 F.2d at 1045; (4) information indicating the possessors of the contraband are aware that the police are on their trail, United States v. Doyle, 456 F.2d 1246 (5th Cir.1972); and (5) the ready destructibility of the contraband and the knowledge “that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic,” United States v. Manning, 448 F.2d 992, 998-999 (2d Cir. 1971); United States v. Davis, 461 F.2d at 1031-1032.

United States v. Rubin, supra at 268-269. See generally: LaFave, Search and Seizure, Volume 2, § 6.5(b) (2nd ed. 1987). Accord: Commonwealth v. Anderson, 272 Pa.Super. 167, 414 A.2d 1060 (1979); Commonwealth v. Phillips, 244 Pa.Super. 42, 366 A.2d 306 (1976); Commonwealth v. Tate, 237 Pa.Super. 104, 346 A.2d 570 (1975). Another factor which must be considered is whether police have fully availed themselves of one or more earlier opportunities to obtain a warrant. LaFave, § 6.5(b) at 660-662. See, e.g.: United States v. Collazo, 732 F.2d 1200 (4th Cir.1984), cert. denied, 469 U.S. 1105, 105 S.Ct. 777, 83 L.Ed.2d 773 (1985); United States v. Impink, 728 F.2d 1228 (9th Cir. 1984); Commonwealth v. Forde, 2 Mass.App. 425, 313 N.E.2d 581 (1974), aff'd, 367 Mass. 798, 329 N.E.2d 717 (1975). But see: United States v. Gardner, 553 F.2d 946 (5th Cir.1977), cert. denied, 434 U.S. 1011, 98 S.Ct. 722, 54 L.Ed.2d 753 (1978).

In United States v. Rubin, supra, a suspect who had been under surveillance was arrested about six blocks from his home after his actions had suggested to federal agents that he was aware of the surveillance. Upon being arrested, the suspect shouted to bystanders, who appeared to be people who were known to him, to call his brother. At this time, efforts were already under way to obtain a warrant to search the suspect’s house. Fearing that the brother might be warned of the suspect’s arrest and that he would destroy evidence, however, the federal agents conducted an immediate warrantless search. The Court of Appeals found these circumstances sufficiently exigent to excuse the warrant requirement.

In the instant case, as in Rubin, the police feared that the arrest of other persons, the Rodriguezes, would become known to appellant and that, as a result thereof, appellant would be able to destroy evidence before a search warrant could be obtained. Unlike Rubin, however, there were no indications prior to the arrest of the Rodriguezes that appellant was aware of the police surveillance of his home or that the Rodriguezes attempted to warn him that an arrest had been made. Instead, the only basis for the fear that appellant had been alerted and would destroy evidence was the belief of Sergeant Brown, based on a previous visit to appellant’s residence over a year earlier, that appellant had a police scanner. In order to justify the conclusion that appellant had learned about the Rodriguez arrest, the police had to assume that Sergeant Brown had accurately observed a scanner in appellant’s home a year before, that the scanner was still in appellant’s home, that the scanner was turned on at the time of the Rodriguez arrest, and that appellant had been listening to the scanner. This, in our judgment, was too tenuous a basis upon which police could reasonably conclude that evidence in appellant’s home would be destroyed before they could obtain a search warrant.

Moreover, in this case it is clear that police had ample opportunity to obtain a warrant in advance of their warrant-less entry into appellant’s home. Information via confidential informants had been supplied as early as November 15, 1985, twelve days prior to the warrantless entry, that the Rodriguezes would be delivering drugs to appellant’s residence. Specifically, the suppression court summarized the information possessed and the action taken by the police as follows:

The information provided by the informants consisted of the following:
(1) The Rodriguezes brought cocaine into York in the past;
(2) That on the 15th of November, the Rodriguezes would be bringing drugs to York to sell;
(3) That the drugs would be delivered to an address on Bergman Street in York and to Stephen Conn’s residence;
(4) That on the 15th of November, the Rodriguezes actually delivered cocaine to Conn at his residence;
(5) That on the 23rd and 27th of November, the Rodriguezes would again be in York to deliver drugs at the two aforementioned addresses;
(6) That the Rodriguezes had several different vehicles including a black Trans Am, a white Chevy and a Ford Mustang;
(7) That Conn would receive anywhere from one to three ounces of cocaine from the Rodriguezes;
(8) That the Rodriguezes would quickly get rid of the drugs.

At the preliminary hearing the police testified that they received information concerning [appellant and the Rodriguezes] from two reliable informants. We agree. Informant # 1, a poly-drug user, had provided information in the past which led to the issuance of four search warrants and the arrest and conviction of four defendants. Informant # 2, also a poly-drug user, had given information in the past to police officers in this case which had proven to be correct. See Com. v. Benjamin, 260 Pa.Super. 1, 393 A.2d 982, [9]85 (1978). The police surveillance established the following:

(1) On the 15th of November, the officers observed Mr. Rodriguez at 535 Bergman Street and later identified a car parked in the neighborhood with New Jersey tags which proved to be registered to Mrs. Rodriguez;
(2) They called the informant on the 15th of November and were informed that the Ridriguezes [sic] had been to the Conn residence prior to their being at the Bergman Street address;
(3) On the 23rd of November, the officers again found the Rodriguezes’ car in York;
(4) On the 27th of November, the officers saw the Rodriguezes’ car entering York via Route 88 and later observed it parked at the Conn residence.

With this information, the police had sufficient probable cause with which to obtain a warrant to search appellant’s home even before they arrested the Rodriguezes.

If the police had obtained a warrant in this case [the] conviction[] would easily stand____ In a perfect world, the police use this information to obtain a search warrant. Warrant in hand, they go to the house, search it, and the suspects are apprehended.
Here, however, the police chose not to obtain a warrant. Instead they simply entered the premises____ Where the police have ample opportunity to obtain a warrant, we do not look favorably on their failure to do so.

United States v. Impink, supra at 1231 (emphasis added) (police claim that exigent circumstances justified warrant-less entry rejected where a magistrate could easily have been consulted in advance). See also: Commonwealth v. Forde, supra.

The record in this case also discloses that prior to the time when the police followed and subsequently arrested the Rodriguezes, Sergeant Brown had informed Trooper Daryman, during their meeting at the district justice’s office, that a possibility existed that appellant had a police scanner. Despite this knowledge, neither Brown nor Daryman informed Trooper Lokhaiser of the possible presence of a scanner until after the Rodriguezes had been arrested. In the meantime, Brown and Daryman, apparently unconcerned that appellant might be listening via police scanner, took no precautions whatsoever to limit radio transmissions which discussed police actions in connection with the Rodriguez arrest. Indeed, it was not until Trooper Lokhaiser had been informed about the police scanner, following the arrest of the Rodriguezes, that the fear that appellant would destroy evidence was articulated. It has been said that “[t]he government will not be allowed to plead its own lack of preparation to create an exigency justifying warrantless entry.” United States v. Collazo, supra at 1204. In Collazo, the United States Court of Appeals for the Fourth Circuit rejected the government’s argument that spreading publicity regarding the arrests of co-defendants would cause the appellant to flee or destroy evidence where ample grounds had existed to obtain search warrants prior to the arrests of the co-defendants. See also: Niro v. United States, 388 F.2d 535 (1st Cir.1968).

Our examination of the decided cases suggests that the circumstances relied upon by the Commonwealth in the instant case were not of such exigency as to excuse the need for a warrant before police could force their way into appellant’s home to seize the contraband which they believed they would there find.

For similar reasons we are constrained to agree with appellant’s contention that the police violated the “knock and announce” rule in the instant case. The trial court concluded that, absent exigent circumstances, the police entry into appellant’s home would have violated the “knock and announce” requirement. Because we have determined that the circumstances were not exigent and did not excuse the need for a warrant, we are also constrained to hold that the “knock and announce” rule was violated by the police when they entered appellant’s home without first stating their purpose or waiting for a response to their knock. See: Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971) (plurality opinion) (before entering private home to conduct search or make arrest, police must, absent exigent circumstances, give notice of their presence and purpose as well as give occupants an opportunity to surrender premises voluntarily); Commonwealth v. Cerulla, 223 Pa.Super. 24, 296 A.2d 858 (1972) (same). See also: Pa.R.Crim.P. 2007.

For all these reasons, we conclude that the entry of police into appellant’s home without a search warrant was unreasonable and in violation of the Fourth Amendment of the United States Constitution. Consequently, the evidence obtained as a result of the unlawful entry should have been suppressed. See: Commonwealth v. Johnson, 474 Pa. 512, 520, 379 A.2d 72, 75 (1977) (“Evidence obtained in violation of an individual’s constitutional right to be free from unreasonable searches and seizures cannot be used against him at trial.”).

Without this evidence, it may be that appellant will not be convicted. However, in the words of a court as prestigious as the Pennsylvania Supreme Court, “[ojne of the prices we have to pay for the security which the Fourth Amendment bestows upon us is the risk that an occasional guilty party will escape.” Commonwealth v. Newman, 429 Pa. 441, 448, 240 A.2d 795, 798 (1968).

The judgment of sentence is reversed and the case is remanded for a new trial. Jurisdiction is not retained.

      . Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13, as amended, 35 P.S. § 780-113(a)(30).

      . Police found no scanner in appellant’s home, and appellant denied ever having one.


author: GRILLO, President Judge: MONTGOMERY, Judge, POPOVICH, Judge,

text:
    547 A.2d 774
    COMMONWEALTH of Pennsylvania v. Joseph C. McFADDEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 4, 1988.
    Filed Sept. 8, 1988.

      Jack W. Cline, Mercer, for appellant.
    Thomas S. Moore, Assistant District Attorney, Grove City, for Com.
    Before CIRILLO, President Judge, and POPOVICH and MONTGOMERY, JJ.
   GRILLO, President Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Mercer County on October 27, 1987, against Joseph McFadden. McFadden was sentenced to thirty days to twenty-three months in the Mercer County Jail, and was fined three hundred dollars. We reverse.

On December 11, 1986, police were summoned to the Pine Hollow Trailer Court by Edward Thomas. A truck owned by Thomas had been damaged when Joseph McFadden backed his car into it. Thomas had heard the collision, had seen McFadden driving the car away, and had run after him on foot. He stopped McFadden at the entrance to the trailer park, and insisted that he return with him to his trailer. Thomas then called the police. McFadden did not remember the accident. Thomas testified that McFadden appeared to be unsteady while seated in the car, and further testified that he observed the sobriety tests conducted by the police, and that McFadden appeared to him to be drunk. He, as well as the officer who administered the tests, testified that McFadden had fallen when he attempted to perform a test which required him to bend from the waist with his eyes closed. The police officer also testified that McFadden smelled of alcohol, and almost fell from the car when he tried to get out of it initially.

McFadden was taken to a hospital for treatment for a cut received from his fall during the sobriety test. While there, he agreed to a blood test; the level of alcohol in his blood was found to be 0.28. He was arrested and charged with driving under the influence of alcohol under 75 Pa.C.S.A. § 3731(a)(1), (4). McFadden was found guilty after a jury trial. He filed post-trial motions which were denied. He then appealed to this court.

McFadden argues on appeal that he should not have been convicted of driving under the influence of alcohol because the Motor Vehicle Code applies only to the operation of vehicles on the “highways” and “trafficways” of the Commonwealth of Pennsylvania. 75 Pa.C.S.A. § 3101. According to McFadden, the private drive of a trailer court does not constitute either a “highway” or “trafficway” as defined in section 102 of the Motor Vehicle Code. Because, after reviewing all the evidence presented in the light most favorable to the Commonwealth, we do not find that the private drive in question was a “trafficway” under Section 102 of the Motor Vehicle Code, we reverse and discharge appellant.

McFadden has couched his appeal to us in terms of a challenge to the denial of his motion in arrest of judgment. In reviewing a refusal to arrest judgment, we must consider whether the evidence was sufficient to uphold the verdict of the trial court. We must accept all the evidence and all reasonable inferences which may be drawn from that evidence upon which the fact finder could have based its verdict. If the evidence, viewed in the light most favorable to the verdict winner, is not sufficient to establish guilt beyond a reasonable doubt of the crime charged, then the motion should have been granted. Commonwealth v. Robinson, 351 Pa.Super. 309, 311-12, 505 A.2d 997, 998 (1986). In this case, if the Commonwealth failed to show that the drive on which the accident occurred was either a “highway” or a “trafficway” under the Motor Vehicle Code, the evidence would not have been sufficient to establish McFadden’s guilt beyond a reasonable doubt. An essential element of this offense is that it have occurred on a highway or trafficway.

Section 3101 of the Motor Vehicle Code states that: § 3101. Application of part
(a) General rule. — Except as provided in subsection (b), the provisions of this part relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except where a different place is specifically referred to in a particular provision.
(b) Serious traffic offenses. — The provisions of Subchapter B of Chapter 37 (relating to serious traffic offenses) shall apply upon highways and trafficways throughout this Commonwealth.

75 Pa.C.S. § 3101.

“Highways” and “trafficways” are defined in the Motor vehicle code as follows:

§ 102. — Definitions
“Highway.” The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical park.
“Trafficway.” The entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom.

75 Pa.C.S. § 102. It is clear that this offense did not occur on a highway, because the testimony establishes that it was a private road. The question which we must consider on appeal is whether or not the drive into the trailer park may be considered a trafficway.

There is little authority in case law to guide us on this issue. A panel of this court has held that a dirt road through a field which was open to the public, and was customarily used by some members of the public for vehicular traffic, constituted a trafficway under the statute. Commonwealth v. Baughman, 357 Pa.Super. 535, 538, 516 A.2d 390, 391 (1986). It noted that no signs or barriers existed which restricted access to that road. Id. See also Commonwealth v. Williams, 36 D. & C.3rd 106 (Berks Co.1985) (holding private road is a trafficway and citing to Commonwealth v. Bresnock, infra).

Other courts of this Commonwealth have also addressed this issue, although their decisions do not bind us. The Commonwealth Court held that a private motel parking lot was a trafficway under the Motor Vehicle Code. Department of Transportation v. Bendik, 112 Pa.Cmwlth. 591, —, 535 A.2d 1249, 1251 (1988). The court found that from its use, one could infer that a motel parking lot was customarily open to the public for the purposes of vehicular traffic to the extent that members of the public were welcome to drive on the lot if they wished to patronize the motel or restaurant. Id. at —, 535 A.2d at 1251. This decision parallels decisions at the trial court level. See Commonwealth v. Bresnock, 19 D. & C.3rd 327, 330 (Lehigh Co. 1981) (private parking lot of a restaurant was open to the public for vehicular purposes to extent any member of public could enter to patronize business, and therefore constituted a trafficway); Commonwealth v. Roesch, 18 D. & C.3rd 59 (Centre Co.1981) (private parking lot in university with signs restricting access not necessarily open for public travel or improved, used, or designed for vehicular travel, and therefore not trafficway).

We do not find these decisions persuasive because the factual situations on which they were based differ from that facing us in the present case. A review of the record shows that the Commonwealth failed to adduce any evidence upon which the jury could have based a conclusion that the road was customarily open to vehicular traffic. Quite to the contrary, the testimony described the drive as a private road with only one entrance/exit through which access and egress could be obtained. Thomas testified that the road was a dead end, and that he lived at the end of the turnaround “when it comes into a T.” Based on this evidence, the jury could not reasonably draw the inference that the road was customarily open to the public for the purposes of vehicular traffic. The more reasonable conclusion to be drawn from the very shape of the road is that it was a purely private drive utilized by those who lived in the trailer park to gain access to, and egress from, their homes. We note that appellant was, in fact, a resident of the trailer park.

While it is true that those visiting the residents of the trailer park were welcome to use the road, we do not find that this possibility of random drivers creates the customary use by the public for vehicular travel that is necessary to designate a drive a trafficway under Section 3101. In fact, we note, as did a panel of this court in Baughman, that Section 3101 has a separate definition for “private road” or “driveway.” Section 102 defines these terms as:

A way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner, but not by other persons.

75 Pa.C.S. § 102. The only evidence presented by the Commonwealth seems to bring the drive into the trailer park within this definition. Neither section 3101 nor section 3731(a)(1), (4) proscribes conduct on private roads or driveways.

We must strictly construe the provisions of sections 102 and 3101. 1 Pa.C.S. § 1928(b)(1) (penal statutes are strictly construed). We therefore hold that viewed in the light most favorable to the Commonwealth, the evidence was insufficient to establish the guilt of the appellant beyond a reasonable doubt. The Commonwealth, having failed to show that the road in question was, in fact, a “trafficway” under the Motor Vehicle Code failed to establish that McFadden had committed an offense under Section 3731. For these reasons, we reverse the decision of the trial court.

Judgment of sentence is vacated, and the appellant is discharged.

MONTGOMERY, J., filed a concurring statement.

POPOVICH, J., filed a dissenting opinion.

MONTGOMERY, Judge,

concurring:

I concur with the majority that the appellant’s judgment of sentence must be vacated. I reach this conclusion only after a thorough reading of the record in this case. Put simply, the Commonwealth failed to prove, as it is required to, that the offense occurred on either a highway or traffic-way of the Commonwealth. The owner of the vehicle which the appellant damaged testified on direct examination that the area where the appellant was driving was not a public highway. The other Commonwealth witness, the arresting officer, confirmed on cross-examination that the offense occurred on “private property” as was indicated in his accident report. While not wholly dispositive of the issue, this was the only evidence adduced at trial relating to where the appellant was driving at the time of the accident, which ultimately led to the appellant’s arrest. Under these circumstances, I concur with Judge Cirillo that the Commonwealth failed to produce sufficient facts to sustain the appellant’s conviction.

POPOVICH, Judge,

dissenting:

I cannot join in the Majority’s conclusion that a driveway within the confines of a trailer park, and upon which the defendant was observed driving while intoxicated, is not a “highway” or “trafficway” under the Motor Vehicle Code so as to sustain the defendant’s conviction and sentence for violating 75 Pa.C.S. § 3731(a)(1) & (4).

Under 75 Pa.C.S. § 102, a “highway” is defined to include a roadway open to the use of the public and situate on the grounds of a “private school”. Similarly, “trafficway” is defined in the same section to encompass property “open to the public” for vehicular travel as a matter of “custom”.

At bar, we have a trailer park on which the defendant, and the owner of the vehicle he struck while attempting to leave the grounds, resided. No one disputes the singularity of the road serving as the only access route to and from the trailer park. Further, there is no indication from the accounting by even the Majority’s recitation of the facts that restrictions were placed on the “public” seeking to use the roadway to visit, do work for or make deliveries to those in the park area. Thus, the “private” nature of the roadway did not inhibit entry or exit by the public at large, be it to perform a task or renew acquaintances with those who reside there.

Unlike the Majority, I read the cases cited in the body of its opinion to be supportive of a conclusion upholding the trial court’s judgment of sentence. In my reading of the law, where a roadway is travelable by and accessible to the public it should be denominated a “trafficway”. The nature of the road in question, in the sense that it is on “private” property, should not detract from its being characterized as open to public ingress and egress.

Because I do not read the facts and the law so narrowly as to embrace the position of the Majority, I respectfully dissent from the reversal of the judgment of sentence.