author: CAVANAUGH, Judge: SPAETH, Judge,

text:
    436 A.2d 628
    EDWARD M. by his Mother, Ann M., Tyrone S. by his Mother, Eulacie S., Joseph H. by his Guardian, Alexander J. Palamarchuk, Esquire, for themselves and other similarly situated, Appellants, v. Joseph F. O’NEILL, Edward G. Rendell, Unknown Police Officers. In the Interest of Vander CLAYBORNE (a juvenile). Appeal of COMMONWEALTH. In the Interest of Ronald FORREST (a juvenile). Appeal of COMMONWEALTH. In the Matters of Luke McCULLOUGH, Erick Bradely (sic), Antonio Clark, Vander Clayborne, Ronald Forrest and Samuel Buffert. Appeal of COMMONWEALTH.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1979.
    Filed Oct. 16, 1981.
    Petition for Allowance of Appeal Denied Jan. 29, 1982.

      Alexander J. Palamarchuk, Philadelphia, for Edward M. et al., appellants (at No. 1502).
    Nancy Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellant (at Nos. 1858, 1859 and 1860), O’Neill, et al., appellees (at No. 1502).
    Karl Baker, Assistant Public Defender, Philadelphia, for Clayborne, appellee (at No. 1858), Forrest, appellee (at No. 1859), McCullough, et al., appellees (at No. 1860).
    Before CERCONE, President Judge, and PRICE, SPAETH, HESTER, CAVANAUGH, MONTGOMERY and HOFFMAN, JJ.
   CAVANAUGH, Judge:

The dispute in this case concerns the legality of Philadelphia Police Department Directive 95 which concerns juveniles in police custody and which established procedures for the fingerprinting and photographing of juvenile arrestees over fifteen years of age. On August 21, 1979, the Honorable Paul A. Dandridge, sitting in Juvenile Court, granted motions to expunge all fingerprint and photograph records obtained from juvenile defendants Vander Clayborne and Ronald Forrest pursuant to Directive 95. The Commonwealth’s appeals from these orders are captioned and docketed as follows: In the Interest of Vander Clayborne, No. 1858 October Term, 1979; In the Interest of Ronald Forrest, No. 1859 October Term, 1979. On August 22, 1979, Judge Dandrige entered an Injunctive Order requiring the immediate cessation of the implementation of Directive 95. The Commonwealth’s appeal from this order is captioned and docketed as In the Matters of McCullough, et al., No. 1860 October Term, 1979.

We ordered these appeals consolidated with the appeal in the case of Edward M. et a 1. v. O’Neill, et al., No. 1502 October Term, 1979. In that case the Honorable John J. McDevitt, III, sitting in equity, entered an order refusing to preliminarily enjoin the implementation of Directive 95. All of the orders appealed from have been stayed pending disposition of these appeals.

Directive 95 provides, in pertinent part, as follows:
SUBJECT: JUVENILES IN POLICE CUSTODY
I. POLICY
D. Juveniles 15 years of age and older who are taken into custody for the following offenses will be fingerprinted and photographed in accordance with the procedures outlined in this directive.
1. Murder
2. Retail Theft (only juveniles 16 and 17 years of age)
3. Manslaughter
4. Attempted Murder
5. Aggravated Assault
6. Kidnapping
7. Rape
8. Robbery
9. Burglary
10. Auto Theft
11. Arson of Occupied Premises
12. Involuntary Deviate Sexual Intercourse
13. Perjury
14. Tampering with a Witness
15. Violation of the Uniform Firearms Act
16. All Bench Warrants
17. Escape
IV. FINGERPRINTING AND PHOTOGRAPHING OF JUVENILES
A. All juveniles arrested for the offenses listed in Section I will be fingerprinted and photographed by CCTV personnel in the division wherein they were arrested prior to release or delivery to the Youth Study Center. Exception: Juveniles arrested for the offenses listed in Section I are to be processed at the Police Detention Unit, when the investigation is conducted in Detective headquarters.
1. Juveniles arrested in divisions without CCTV facilities will be transported to a division with CCTY as directed in Appendix “A”. In these cases the juvenile will be investigated in the division of arrest. At the conclusion of the investigation the juvenile will be transported for processing. The juvenile will then be released to his parents at the district where he/she was processed, or delivered to the Youth Study Center. EXAMPLE: Juvenile arrested in 6th District. Investigated at 20th & Pennsylvania. Processed at 24th & Wolf. Released to parents at 24th & Wolf.
B. The assigned Juvenile Aid Division investigator will ensure that the juvenile is properly processed and released and that the necessary reports are properly prepared and distributed.

At the time Directive 95 was implemented there was no express statutory authority permitting the Philadelphia Police Department to fingerprint and photograph juveniles. Thus in both of the appeals before us the authority of the police to initiate such proceedings is challenged. Since the filing of the appeals in the instant case, legislation has been enacted specifically authorizing the fingerprinting and photographing of juveniles. 42 Pa. C.S.A. § 6308(c) provides:

§ 6308. Law enforcement records66
4« 4s 4s 4s 4s 4=
(c) Fingerprints and photographs.—
(1) Law enforcement officers shall have the authority to take or cause to be taken the fingerprints or photographs, or both, of any child 15 years of age and older who is alleged to have committed a delinquent act that, but for the application of this chapter, would constitute a felony or a violation of Subchapter a of Chapter 61 of Title 18 (relating to uniform firearms act)67.
(2) Fingerprint and photographic records shall not be disseminated to law enforcement officers or other jurisdictions, the Pennsylvania State Police or the Federal Bureau of Investigation unless so ordered by the court.
(3) Fingerprints and photographic records of children shall be immediately destroyed by all persons and agencies having these records if the child is not adjudicated delinquent for reason of the alleged acts.
66 42 Pa.C.S.A. § 6308, subsec. (c).

Thus insofar as the juveniles seek to enjoin the police from continuing the practice of fingerprinting and photographing juveniles no live controversy is presented. However, the juveniles claim that these procedures, which are quoted above, violate the Juvenile Act and their constitutional rights. Therefore, although we hold that the cases before us are moot as to the issue of authority to fingerprint and photograph juveniles, as seen below the statute does not render the matters before us entirely moot.

I

First we will consider the Commonwealth’s appeals from the orders of Judge Dandridge.

A

The action in the lower court was commenced by the filing of petitions to expunge the fingerprint and photograph records of the appellees. Subsequently appellees filed a Motion to Certify a Class Action and a Motion for Intervention. By order of July 24, 1979, both motions were denied. Thereafter Judge Dandridge granted the petitions to expunge. The following day Judge Dandridge stated in an order that Directive 95 is violative of the purposes of the Juvenile Act and that the Philadelphia Police Department shall immediately cease and desist its practice of fingerprinting and photographing juveniles. In reference to this latter order the Commonwealth argues that the lower court acted in derogation of its judicial responsibility by sua sponte entering an injunctive order. We agree that due to procedural irregularities the cease and desist order must be reversed.

As noted above Judge Dandridge denied appellees’ petition to certify a class action. This denial was proper in view of appellees’ failure to comply with the Rules of Civil Procedure governing the commencement of class actions. See Pa. R.C.P. 1701-1716 (effective September 1, 1977). Rule 1703(a) provides that “[a] class action shall be commenced only by the filing of a complaint with the prothonotary.” Subpart (b) of Rule 1703 states that “[u]pon the filing of the complaint the action shall be assigned forthwith to a judge who shall be in charge of it for all purposes.” Rule 1704 dictates the form of the complaint. Appellees failed to comply with these prerequisites, and simply filed their motion with the judge of their choosing without a complaint. According to the explanatory note to Rule 1703, “if the complaint does not comply with Rule 1704, it will not commence a class action.” Further, Rule 1710(e) provides that “[i]f certification is refused or revoked, the action shall continue by or against the named parties alone.”

Despite these procedural irregularities and its own denial of class certification the lower court entered an order which in effect mandates class-wide relief. The Commonwealth argues that once the lower court denied appellees’ motion to certify a class action, he could not thereafter grant any form of class-wide relief.

Appellees maintain, however, that the lower court judge in the context of a proceeding in equity brought by an individual may enjoin all further implementation of the police regulation which has been found to be contrary to law. In support of this appellees cite Simco Sales v. Township of Lower Merion, 38 Pa.Cmwlth. 434, 394 A.2d 642 (1978). There an ice cream company brought suit challenging a township ordinance banning “street” sales of ice cream. On appeal Commonwealth Court declared the ordinance unconstitutional as an improper exercise of the police power and permanently enjoined the enforcement of the ordinance. Similarly in Fantastic Plastic, Inc. v. City of Pittsburgh, 32 Pa.Cmwlth. 41, 377 A.2d 1051 (1977), in a suit brought by an individual discotheque, an injunction was granted enjoining enforcement of a municipal ordinance banning bottle-clubs. Further, appellees cite Bell Telephone v. Driscoll, 343 Pa. 109, 112, 21 A.2d 912, 914 (1941) wherein it was stated:

We have no doubt about the right of the Court of Common Pleas of Dauphin County in the exercise of its equitable powers to entertain a bill to enjoin an administrative agency of the Commonwealth from exercising powers not conferred on it or unconstitutionally conferred on it. That point has been decided too frequently to be longer in doubt, [citations omitted].

These cases, however, do not give the courts the authority to ignore established procedures. In the instant case an injunction was not sought nor was a hearing conducted prior to the sua sponte issuance of the injunctive order. Once class certification was denied, the only matter properly before the court was the expungement of the individual juvenile records. Thus as appellants point out, Judge Dandridge granted relief on an issue which was never properly before him. See Marks v. Bell Telephone, 460 Pa. 73, 331 A.2d 424 (1975). In Marks an action in equity was brought claiming that the police department practice of recording all telephone calls on police department lines violated the Pennsylvania Anti-Wire Tap Act. The lower court enjoined the city from intercepting and recording only appellant’s calls. On appeal it was argued that the court should have enjoined all use of the recording .system. The Supreme Court rejected appellant’s argument, holding that he was not eligible for class-wide relief where the procedural prerequisites and protections of a class action have not been satisfied. The court further reasoned that, in addition to the procedural irregularities involved, the granting of class-wide relief imposes undue hardships on the defendants. The court stated:

If the plaintiffs succeeded on the merits and the relief were granted, the defendants would be bound by the broad injunction. However, should the defendants be successful in the litigation, the verdict in their favor would have no res judicata effect upon persons not a party to the suit, [citations omitted]. Thus, the defendants could be subjected to a multitude of suits all based upon the same basic set of facts, all seeking the same broad relief, and all free of any final effect upon new plaintiffs, although potentially binding upon the defendants.

460 Pa. at 82-83, 331 A.2d at 429.

Thus the lower court was in error in issuing an injunction sua sponte and we reverse.

B

Next we address the propriety of Judge Dandridge’s orders of August 21, 1979, granting the petitions to expunge the fingerprints and photographs of the individual juveniles. The issue before us is whether expungement is the proper remedy regardless of the possible merit to the petitioners’ claim.

The Commonwealth argues that the juvenile petitioners were not legally entitled to the remedy of expungement. In support of this contention the Commonwealth cites Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976). In that case we held that in certain circumstances due process guarantees an individual the right to have his arrest record expunged. In a subsequent case, Commonwealth v. Rose, 263 Pa.Super. 349, 351, 397 A.2d 1243, 1244 (1979), we relied on Malone in stating:

The judicial remedy of expunction is an adjunct to the inherent rights of Due Process and is not dependent on express statutory authority. However, expunction is proper only in cases where acquittal is consistent with a finding of real innocence and is not a result of legal technicalities unrelated to questions of guilt or innocence.

Thus where an accused is indicted but never tried because the indictments were nol prossed upon the district attorney’s confession that he would be unable to establish a prima facie case at trial, due process requires the Commonwealth to present compelling evidence justifying retention of the arrest record. Wert v. Jennings, 249 Pa.Super. 467, 378 A.2d 390 (1977), aff’d, 488 Pa. 124, 411 A.2d 218 (1980). See also Commonwealth v. Iacino, 270 Pa.Super. 350, 411 A.2d 754 (1979). However, where the record shows that the Commonwealth made out a prima facie case of guilt on the part of the accused, he will then have the burden to affirmatively demonstrate nonculpability, otherwise his petition to expunge will be denied. Commonwealth v. Mueller, 258 Pa.Super. 219, 223, 392 A.2d 763, 765 (1978). If nonculpability is established, the court must weigh the Commonwealth’s interest in retaining the accused’s arrest record against the accused’s interest in being free from whatever disabilities the record may create. Id.

In Commonwealth v. Briley, 278 Pa.Super. 363, 420 A.2d 582 (1980) the remedy of expungement was extended to the petitioners who had successfully completed the Accelerated Rehabilitative Disposition Program (hereafter ARD), see Pa.R.Crim.P. 175 et seq., 42 Pa.C.S.A. There we held that the Commonwealth has the burden of justifying retention of the individual’s arrest record.

As noted above, the judicial remedy of expungement is an adjunct to due process and proper where acquittal is consistent with a finding of real innocence. Although ARD cannot be said to be equivalent to a finding of “real innocence”, this court relied on the Malone and Rose line of cases in concluding that ARD program participants may be entitled to expungement. First, while acknowledging that placement in ARD is not a jury’s acquittal, we stated that in practical effect the program is not that different in that once the candidate successfully completes the program, the Commonwealth was forever barred from convicting him on the charges lodged. As a second reason for holding that ex-pungement is an available remedy we stated:

Here, by moving the lower court for appellant’s admission into the ARD program, the Commonwealth demonstrated its belief that the nature of appellant’s offense and his background and character were such that the interests of society would be best served were he not prosecuted, but diverted out of the criminal justice system as quickly as possible.

278 Pa.Super. 363, 420 A.2d at 586.

In the instant case Judge Dandridge ordered the expungement of all photographs and fingerprint records of juvenile appellees, Ronald Forrest and Vander Clayborne. Both appellees had been adjudicated delinquent on the charges for which they had been photographed and fingerprinted prior to the orders of Judge Dandridge. Given this, appellants argue that the juveniles would not have been stigmatized by the retention of these records and are therefore not entitled to expungement. We agree.

As discussed at length above, the judicial remedy of expungement is rarely available. Initially we held that expungement is only proper where the defendant is innocent, not where acquittal is the result of legal technicalities. However, a principled extension of the remedy was found in Briley because of the singular nature of the ARD program: The similarity between the disposition and a jury’s acquittal; the stringent qualifications the individual must possess before the Commonwealth will recommend entry into the program; and the Commonwealth’s own admission in recommending ARD that diversion out of the criminal justice system will benefit society. In all cases, however, expungement is rooted in the accused’s right to due process, as we stated in Commonwealth v. Malone:

Punishment of the innocent is the clearest denial of life, liberty and property without due process of law. To remedy such a situation, an individual must be afforded a hearing to present his claim that he is entitled to an expungement—that is because an 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.

244 Pa.Super. at 69, 366 A.2d at 588. Thus the remedy of expungement is not available to the appellees because they were adjudicated delinquent. Therefore, even if the photographing and fingerprinting of juveniles were found to be violative of the Juvenile Act, expungement would not be proper.

We so hold even though the expungement cases upon which we rely deal solely with adult offenders. The due process interest to be protected is the same with both an adult and a juvenile. Likewise, the societal interest in maintaining records is no less present where the accused is a juvenile. We therefore find no basis to distinguish the due process right to expungement of the culpable juvenile from that of the culpable adult. This conclusion finds support in legislation enacted subsequent to the filing of these appeals.

As noted earlier 42 Pa.C.S.A. § 6308 was amended to provide for the fingerprinting and photographing of juveniles. Section 6308(c)(3) provides:

Fingerprints and photographic records of children shall be immediately destroyed by all persons and agencies having these records if the child is not adjudicated delinquent for reason of the alleged acts, [emphasis added].

Also the Criminal History Record Information Act, 18 Pa.C.S.A. § 9101 et seq. (effective January 1, 1980), now provides:

§ 9123. Juvenile records.
(a) Expungement of juvenile records.—Notwithstanding the provisions of section 9105 (relating to other criminal justice information) and except upon cause shown, expungement of records of juvenile delinquency cases wherever kept or retained shall occur after ten days notice to the district attorney, whenever the court upon its motion or upon the motion of a child or the parents or guardian finds:
(1) a complaint is filed which is not substantiated or the petition which is filed as a result of a complaint is dismissed by the court other than as a result of an informal adjustment;
(2) five years have elapsed since the final discharge of the person from commitment, placement, probation or any other disposition and referral and since such final discharge, the person has not been convicted of a felony, misdemeanor or adjudicated delinquent and no proceeding is pending seeking such conviction or adjudication; or
(3) the individual is 21 years of age or older and a court orders the expungement.

18 Pa.C.S.A. § 9123(a). Of course, should they meet the statutory requirements, appellees are free to seek relief under this section.

The orders of Judge Dandridge granting the petitions to expunge of Vander Clayborne and Ronald Forrest are reversed.

II

We now address the appeal of Edward M. This action was commenced by the filing of a class action complaint in equity and a petition for a preliminary injunction by Edward M., Tyrone S., and Joseph H., on behalf of themselves and all other juveniles similarly situated. Appellants filed their complaint against the Philadelphia District Attorney, Edward G. Rendell, Philadelphia Police Commissioner, Joseph F. O’Neill, and certain unknown members of the Philadelphia Police Department.

A hearing on the petitioner’s request for a preliminary hearing was held on May 16, 1979, before Judge McDevitt. On June 1, 1979, Judge McDevitt denied the petition for a preliminary injunction, denied class certification and sustained defendants’ preliminary objections. From these determinations the juveniles bring this appeal.

Each of the named plaintiffs was fingerprinted and photographed according to Directive 95. According to testimony at the hearing Edward M. was arrested at approximately 5:00 p. m. on April 8, 1979. He was taken first to the 15th Precinct and then transported to the Police Administration Building where he was fingerprinted and photographed. He was advised that the reason he was taken to the Police Administration Building was that the equipment for photographing and fingerprinting at the 15th Street Precinct was out of order. Edward M. was released to the custody of his mother at approximately 11:25 p. m. that same evening.

Tyrone S. testified that he was taken into custody by police officers on March 25, 1979, and transported to the 9th District where he was photographed and released after approximately one and one-half hours. He testified that he assumed he was being released because it was a mistaken identity, which had happened to him before. On April 3, 1979, Tyrone S. was again taken into custody on a warrant charging robbery. He was taken to the 9th District where he remained in a room with what he described as “older people” from approximately 2:30 until 8:00 p. m. At approximately 2:30 p. m. he was transported to 1st Police District at 24th and Wolf Streets. At approximately 12:00 а. m. he was photographed and fingerprinted, and finally transported to the Youth Study Center at approximately 2:30 a. m.

Joseph H. was arrested at approximately 1:30 a. m. on March 25, 1979, on the charge of attempted burglary. He was taken to the 35th District where he was fingerprinted and photographed and released at approximately 10:30 a. m. the following morning.

Except for the fact that each of the three juveniles were fingerprinted and photographed, the factual situations of each arrest are quite different. Rule 1702, Pa. R.C.P. sets forth five prerequisites to maintaining a class action. Two such prerequisites are relevant here: There must be questions of law or fact common to the class; and the claims or defenses of the representative parties must be typical of the claims or defenses of the class.

As noted above, appellants’ argument that fingerprinting and photographing juveniles is not authorized under Pennsylvania law has been rendered moot by the enactment of 42 Pa.C.S.A. § 1608(c). Moreover, during the hearing before Judge McDevitt counsel for the juveniles expressly abandoned any challenge to the authority to fingerprint or photograph. Counsel limited its challenge to the procedures followed in procuring the fingerprints and photographs. Appellants argue that the implementation of Directive 95 results in prolonged detention of juveniles in various police facilities in violation of 42 Pa. C.S.A. §§ 6326 and 6327.

Section 6326 provides:

(a) General rule.—A person taking a child into custody, with all reasonable speed and without first taking the child elsewhere, shall:
(1) notify the parent, guardian or other custodian of the apprehension of the child and his whereabouts;
(2) release the child to his parents, guardian, or other custodian upon their promise to bring the child before the court when requested by the court, unless his detention or shelter care is warranted or required under section 6325 (relating to detention of child); or
(3) bring the child before the court or deliver him to a detention or shelter care facility designated by the court or to a medical facility if the child is believed to suffer from a serious physical condition or illness which requires prompt treatment. He shall promptly give written notice, together with a statement of the reason for taking the child into custody, to a parent, guardian, or other custodian and to the court.
Any temporary detention or questioning of the child necessary to comply with this subsection shall conform to the procedures and conditions prescribed by this chapter and other provisions of law.

Section 6327 provides that a child alleged to be delinquent may be detained only in facilities listed therein. The section states:

Under no circumstances shall a child be detained in any facility with adults, or where the child is apt to be abused by other children.

Subsection (c) provides:

It is unlawful for any person in charge of or employed by a jail knowingly to receive for detention or to detain in the jail any person whom he has or should have reason to believe is a child.

Appellants contend that the express mandatory language of Directive 95 makes the violation of these sections of the Juvenile Act inevitable and therefore a class action is appropriate. We disagree. Even if the police activity in the arrests of the juvenile appellants could be said to have violated the Juvenile Act, appellants fall short of establishing that these three instances are representative of the class of juvenile arrestees.

The case of In re Anderson, 227 Pa.Super. 489, 313 A.2d 260 (1973), is particularly instructive here. In that case a juvenile was arrested and taken to the police station for “booking” at nine p. m. He was detained at the police station and questioned for two hours, during which time he confessed. At eleven p. m. he was taken to the juvenile detention center. This court held that the two and one-half hour delay between the arrest and the arrival at the detention center was not an unreasonable delay so as to contravene the Juvenile Act. Most significantly we stated:

A two to two and one-half hour delay might be unreasonable under some circumstances. These cases normally stand on their own particular facts. However, in this case, the police had a legitimate reason in detaining the defendant in the station so that the defendant might identify other perpetrators of this crime when they were brought in. [Emphasis added].

227 Pa.Super. at 442, 313 A.2d at 261.

In Commonwealth v. Bey, 249 Pa.Super. 185, 201, 375 A.2d 1304, 1313 (1977), in determining whether a juvenile was detained at a police station for an unreasonable amount of time, we stated:

The appellant therefore upon his arrest at 10:00 p. m. on June 10, 1974, was in ‘custody’ within the meaning of the Juvenile Act. Consequently, before he was taken elsewhere, allowing for a period in which the authorities could administratively process the juvenile suspect, he should have been released in the custody of his parents, guardian or other custodian or brought before a court or delivered to a detention or shelter care center designated by the court. [Emphasis added].

Thus it is a factual question as to whether the post arrest administrative delay is unduly long so as to violate the Juvenile Act. As Judge McDevitt stated in his memorandum opinion: “A myriad of varying fact situations would necessarily arise from contacts between the police and juveniles in a city of two million persons.” We hold that in view of the fact-sensitive nature of the question of Juvenile Act violations the lower court was correct in refusing to grant class certification. Alleged violations of the Act will best be considered on a case by case basis.

Parenthetically we note that Directive 95 does address the problems related to juvenile arrests. The Directive states, inter alia:

Once a juvenile has been taken into a police facility he/she should not be transferred to another district/unit
for investigation except as specified in this directive.
* * * * * *
The parents, guardians or other custodian of the juvenile shall immediately be notified by the Operations Room Supervisor that the juvenile has been taken into custody, and of the actual or intended place of detention.
$ $ ‡ ‡ $
The Operations Room Supervisor in the district where the juvenile is detained will: Ensure that the juvenile is detained in the district juvenile detention area, separate from any adult prisoner. If the divisional detectives want to question the juvenile ensure that the questioning takes place in the district juvenile facility area and not in the detective division.

We need not address the claims of the juveniles as individuals because any question of injunctive relief as to them is moot. They do not allege that they as individuals are in danger of being subjected to similar police practices in the future. Of course, they are free to avail themselves of the statutory remedies of destruction of their fingerprints and photograph records, 42 Pa.C.S.A. § 6308(c)(3), or expungement of their juvenile records, 18 Pa.C.S.A. § 9123(a).

Order of the lower court in the case of Edward M. et aI. v. O’Neill is affirmed.

Orders of the lower court in In the Interest of Clayborne, In the Interest of Forrest and In the Matters of McCullough et a 1. are reversed.

SPAETH, J., files a concurring and dissenting opinion in which CERCONE, President Judge and HOFFMAN, J., join.

SPAETH, Judge,

dissenting:

I agree with the majority that Judge DANDRIDGE should not have issued an injunction sua sponte. I also agree with the majority that Judge McDEYITT was correct in refusing to grant class action certification. However, I disagree with the majority’s reversal of Judge DANDRIDGE’s orders granting the petitions to expunge the fingerprints and photographs of juveniles Vander Clayborne and Ronalds Forrest.

As the majority recognizes, “At the time Directive 95 was implemented there was no express statutory authority permitting the Philadelphia Police Department to fingerprint and photograph juveniles.” At 630. The statute permitting the police to fingerprint and photograph juveniles, 42 Pa.C.S.A. § 6308(c)(1), was not enacted until February 29, 1980, and was not effective until sixty days thereafter. Clayborne and Forrest were fingerprinted and photographed on March 16, 1979, and April 2, 1979, respectively. Since at that time the police had no express statutory authority to fingerprint and photograph them, we must inquire whether they had any implied statutory authority.

When Clayborne and Forrest were fingerprinted and photographed, the only statute authorizing fingerprinting and photographing of any persons at all was the Act of April 27, 1927, P.L. 414, § 3, as amended, 19 P.S. § 1403, which provided:

The Pennsylvania State Police, the persons in charge of State penal institutions, the wardens or keepers of jails, prisons, and workhouses within this Commonwealth, and all police officers within the several political subdivisions of this Commonwealth, shall have the authority to take, or cause to be taken, the fingerprints or photographs of any person in custody, charged with the commission of crime, or who they have reason to believe is a fugitive from justice or a habitual criminal, except persons charged with a violation of “The Vehicle Code” which is punishable upon conviction in a summary proceeding unless they have reason to believe the person is a fugitive from justice or a habitual criminal; and it shall be the duty of the chiefs of bureaus of all cities within this Commonwealth to furnish daily, to the Pennsylvania State Police, copies of the fingerprints and, if possible, photographs, of all persons arrested within their jurisdiction charged with the commission of felony, or who they have reason to believe are fugitives from justice or habitual criminals, such fingerprints to be taken on forms furnished or approved by the Pennsylvania State Police. It shall be the duty of the Pennsylvania State Police, immediately upon the receipt of such records, to compare them with those already in their files, and, if they find that any person arrested has a previous criminal record or is a fugitive from justice, forthwith to inform the arresting officer, or the officer having the prisoner in charge, of such fact. (Emphasis added.)

This statute did not impliedly authorize the promulgation of Police Directive 95, and the consequent fingerprinting and photographing of Clayborne and Forrest, because as juveniles Clayborne and Forrest were not “person[s] . . . charged with the commission of crime.” Juveniles are not charged with the commission of a “crime” but of a “delinquent act.” 42 Pa.C.S.A. § 6302. The Juvenile Act makes clear that an adjudication under its provisions does not constitute a conviction of crime.

The only case related to the issue of fingerprinting juveniles is Owens-El v. Robinson, 442 F.Supp. 1368 (W.D.Pa. 1978), where the court held that the Pennsylvania Juvenile Code, Act of Dec. 6, 1972, P.L. 1464, No. 333, 11 P.S. § 50-101 et seq., did not prohibit a prison administrator from fingerprinting juveniles upon their admission to prison and sending their fingerprints to federal, state, and local authorities. This case represented no authority for fingerprinting and photographing juveniles upon arrest

Since the police had no express or implied statutory authority to fingerprint and photograph Clayborne and Forrest, the proper remedy was to expunge their fingerprints and photographs. See e. g., Commonwealth v. Fredericks, 235 Pa. Super. 78, 93, 340 A.2d 498 (1975) (fingerprints obtained following illegal arrest subject to expunction). See also Menard v. Saxbe, 498 F.2d 1017 (D.C.Cir.1974); Hughes v. Rizzo, 282 F.Supp. 881 (E.D.Pa.1968).

I should therefore affirm the orders granting appellees’ petitions for expungement.

      . Although all of the crimes listed in Directive 95 for which fingerprints and photographs may be taken are felonies at their highest gradation, not all offenses committed thereunder necessarily rise to the level of a felony. Therefore, the Directive arguably authorizes fingerprinting and photographing of juveniles where the child is arrested for the commission of a misdemeanor or summary offense in the adult context. Because the juveniles challenge the authority of the police to fingerprint and photograph in general and not the authority to fingerprint and photograph depending upon the grade of the offense, we do not address this issue. This question would be better addressed where we have the benefit of argument as to the proper interpretation of § 6308. See also n. 6, infra, additionally, we note that the retail theft statute specifically provides for the fingerprinting of juveniles for the purpose of grading the offense as provided therein. 18 Pa. C.S.A. § 3929(g).

      . Juvenile Act, July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 6301 et seq. (formerly 11 P.S. § 50 101 et seq. (Supp. 1976-77)).

      . Despite the sweeping effect of Judge Dandridge’s order, no opinion in support of the order was filed in this court. See Pa. R.A.P. 1925(a).

      . This Act had been in effect from July 1, 1979 until July 16, 1979, at which point it was repealed and given a subsequent effective date. In the adult context § 9122 of the Criminal History Record Information Act, 18 Pa.C.S.A. § 9101 et seq., authorizes expungement in limited circumstances. Subpart (b), which apparently permits ex-pungement despite a finding of guilt, provides that criminal history record information may be expunged when:
      (1) An individual who is the subject of the information reaches 70 years of age and has been free of arrest or prosecution for ten years following final release from confinement or supervision; or
      (2) An individual who is the subject of the information has been dead for three years.

      . Tyrone S. is now an adult.

      . During the hearing on the motion for a preliminary injunction the following exchange took place between counsel for the juveniles and the court:
      Ms. Defrantz:
      We do not object to the practice itself. What we’re objecting to is the way it’s being done in this county; the fact that defendants have, on their own, initiated this process, and, then, after having initiated the process, attempted to legitimize it by offering amendments to the Legislature.
      We feel that that is—
      THE COURT: You had better state that over again.
      You say you don’t object to the process itself?
      MS. DEFRANTZ: WE don’t object to fingerprinting and photographing children. We object to the way it is practiced in this county.

      . In Re Anderson, supra, was decided under 11 P.S. § 50-310(a) which is now 42 Pa. C.S.A. § 6326.

      . See also the companion cases of In re Schirner, 264 Pa.Super. 185, 399 A.2d 728 (1979) and In re White, 264 Pa.Super. 190, 399 A.2d 731 (1979). In Schirner this court held that the police violated the Juvenile Act in keeping a juvenile in custody for nine and one-half hours prior to his confession. Failure to take the child to a juvenile center with all reasonable speed resulted in the suppression of his statement. In White the juvenile was kept in the police station overnight in violation of the Juvenile Act. However, he confessed within one hour of being taken into custody. It was held that the confession was not obtained in the course of a violation of the Act. (The Juvenile Act provides that any extrajudicial statements obtained in the course of violation thereof shall not be used against the juvenile. 42 Pa.C.S.A. § 6338 (formerly 11 P.S. § 50-318)).


source: Caselaw Access Project

author: SHERTZ, Judge: SPAETH, Judge,

license: Public Domain

text:
    436 A.2d 639
    COMMONWEALTH of Pennsylvania, Appellant, v. Ann MARZEL, COMMONWEALTH of Pennsylvania, Appellant, v. Alonzo McClellan.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1981.
    Filed Oct. 23, 1981.
    Petition for Allowance of Appeal Denied Feb. 23, 1982.

      Stella L. Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    David P. Siegel, Pittsburgh, for appellees.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   SHERTZ, Judge:

These are consolidated appeals by the Commonwealth from Orders suppressing evidence obtained in a search conducted pursuant to a search warrant. The lower court held that the underlying affidavit was based on information too stale to establish probable cause. On appeal, the Commonwealth argues that the affidavit indicates ongoing criminal activity continuing to the date of the issuance of the search warrant. We agree and therefore reverse.

The record discloses that on November 21, 1979, Appellees, Ann Marzel and Alonzo McClellan, were arrested and charged with six counts of violating the Controlled Substance, Drug Device and Cosmetic Act. These charges were based upon evidence obtained in a search conducted on the same day, pursuant to a search warrant issued earlier that day, upon the affidavit of Lieutenant Charles E. Coughlin of the McKeesport Police Department. The affidavit is founded on numerous complaints received from Appellees’ neighbors as well as on information supplied by three separate unidentified informers. The affidavit, in its entirety, states:

This affiant has received many complaints from neighbors in the 1600 block of Manor Ave. over the last several months relating to an unusual amount of activity at 1619 Manor. This activity amounted to persons visiting 1619 Manor Ave. at all times of the day and night, staying short perods [sic] of time & leaving.
Further information from a neighbor who is married & has a family residing at her present address for sveral [sic] years & who is believed by this affiant to be a reliable person told this affiant that on many occassions, [sic] people have mistakenly knocked' on her door and have asked for drugs. These same persons have even named Lonnie was to have the stuff for me.
A person believed to be reliable to this affient [sic] told this affient [sic] that she has personal information from several persons that they have purchased from Ann Marzel and Lonnie McClelland [sic] marihuana. This informant is also a neighbor is married & has a family & lives very close to 1619 Manor. This informant further told me that marihuana is kept in a fishing tackle box located in the front room, at 1619 Manor that she has seen it there. This affiant further attended a communtiy [sic] meeting from irate neighbors at 1619 Manor demanding a stop to dope sells [sic] coming from this address. This meeting was approx, two months ago & this officer had planned to conduct surveillance at 1619 Manor. However this was impossible due to the fact of high shrubbery surrounding the back of the house & the unavailable positions in front. However on today’s date November 21 1979 at approx. 2:00 p. m. this affiant received additional information from another informant and which this information is believed to be true because it corresponds with information that this affiant has already received from neighbors.

That is as follows:

Informant said that Lonnie McClelland [sic] & Ann Marzell are dealing heavy in marihuana and Coke (Cocaine). That he has been inside their house at 1619 Manor & that he has bought marihuana & Cocaine from them. That he further described the entire house to me (inside) and that cocaine is kept under a bed in the upstairs bedroom & that the marihuana is in a fishing tackle box. He also said that there are approx. 50 to 100 cases of beer in the cellar & that they were stolen from the McKeesport Beer dist. Co. He has seen the beer & the drugs in this house, as recently as a month ago. Informant also stated that Ann Marzel or Lonnie McClelland [sic] delivers both drugs and or beer upon request. Based on this information, this affiant believes that a search warrant be issued.

Appellees argue that probable cause was not established by the affidavit because it is based upon allegedly “stale” information and because it fails to establish the reliability of the unidentified informers and the credibility of their information.

I.

The standard for evaluating the sufficiency of affidavits is well stated in Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897, 899 (1971):

In order for the issuance of a search warrant to be constitutionally valid, the issuing officer must reach the conclusion that probable cause exists at the time he issues the warrant. Such a decision may not be made arbitrarily and must be based on facts which are closely related in time to the date the warrant is issued. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); Durham v. United States, 403 F.2d 190 (9th Cir. 1968); Schoeneman v. United States, 115 U.S.App.D.C. 110, 317 F.2d 173 (1963); and Dandrea v. United States, 7 F.2d 861 (8th Cir. 1925). If the issuing officer is presented with evidence of criminal activity at some prior time, this will not support a finding of probable cause as of the date the warrant issues, unless it is also shown that the criminal activity continued up to or about that time, [emphasis added]

Based upon the “continuing activity” proviso, we conclude that the instant affidavit supports a finding of probable cause.

Appellees rely on Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973), to buttress their contention of staleness. In Eazer, an undercover policeman placed a single numbers bet at a newsstand and, although he was informed that bets were accepted daily during the lunch hour, he placed no additional bets. Surveillance of the newsstand owner revealed only that he regularly returned to his home at midday which, according to the court, is a course of conduct followed by innumerable law-abiding citizens. Nevertheless, 61 days after the bet was placed, a search warrant was issued. Not surprisingly, our Supreme Court held the Eazer affidavit deficient as being based on stale information. The Commonwealth’s attempt to demonstrate continuing criminal activity failed because it was founded solely on the police officer’s unsubstantiated impression that the particular crime, a lottery, was ongoing by its very nature.

Appellees emphasize that the affidavit here, as in Eazer mentions activity occurring one and two months prior to the issuance of the search warrant. However, Appellees disregard significant factors that clearly demonstrate continuing criminal activity. The third informant, who communicated with Lieutenant Coughlin on the very day the search warrant was issued, spoke in the present tense. His statements that “the marihuana is in a fishing tackle box”, “Lonnie McClelland [sic] and Ann Marzel are dealing heavily in marihuana and Coke (Cocaine)”, and “Ann Marzell or Lonnie McClellant [sic] delivers those drugs and or beer upon request”, (emphasis added) can reasonably be understood to indicate that Appellees’ criminal activities were of an ongoing nature and continued to the date the warrant was issued. In addition, the same informant’s information concerning the great quantity of stolen beer (50-100 cases) is further evidence that the criminal activity was ongoing and continued to, or about, the time the warrant was issued and the search was executed.

The nature of the criminal activity itself may serve as a reasonable basis upon which to conclude that the activity is continuing. In addition, where a series of illegal acts are observed over a period of time, this fact may serve as a sufficient basis from which to conclude that the activity is of a continuing nature.

Commonwealth v. Suppa, 223 Pa.Super. 513, 515 n.1, 302 A.2d 357, 358 n.1 (1973) (citations omitted).

Here, unlike Eazer there was more than a policeman’s unsubstantiated impression of ongoing criminal activity. One informant, a neighbor of the Appellees, reported instances of people mistakenly knocking on her door to ask for drugs from “Lonnie,” the nickname of Appellant Alonzo McClellan. Another neighbor-informant reported that several persons told her of drug purchases from Appellees. Two informants personally saw marijuana in a fishing tackle box in Appellees’ home. Irate neighbors complained at a community meeting of drug sales occurring at Appellees’ house.

The foregoing corroborative litany of events occurring “over the last several months,” together with the indicia of current activity received by Lieutenant Coughlin on the date the warrant was issued, was sufficient to allow the magistrate, employing “common sense”, to conclude that the probability standard of probable cause had been satisfied. Commonwealth v. Forster, 253 Pa. Super. 433, 439, 385 A.2d 416, 418-19 (1978) (quoting Commonwealth v. Frye, 242 Pa.Super. 144, 148, 363 A.2d 1201, 1203 (1976)). Affording the magistrate’s determination of probable cause the deference due it, id, we conclude that the warrant was not defective for “staleness”.

II.

Admittedly, the timeliness of the information contained in the affidavit is of little value absent a showing of its reliability. Appellees have challenged the above affidavit as failing to meet the two-pronged test set forth by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

Aguilar first requires that the affidavit demonstrate the circumstances that support the informant’s belief that the contraband will be in the place to be searched. This test is met here by the personal observations of the second and third informants of the marijuana and cocaine in the Appellees’ house. Appellees argue that the second informant’s statement, that several persons told her they had purchased marijuana from Lonnie McClelland and Ann Marzel, is hearsay. Such statements are not, however, inherently unreliable. Commonwealth v. Kaschik, 235 Pa.Super. 388, 344 A.2d 519 (1975).

“It is not unusual for an affidavit of a law enforcement officer to contain hearsay information from an informant, which, in turn, is based on other information gathered by that informant. . . . Therefore, when a magistrate receives an affidavit which contains hearsay upon hearsay, he need not categorically reject this double hearsay information. Rather, he is called upon to evaluate this information as well as all other information in the affidavit in order to determine whether it can be reasonably inferred ‘that the informant had gained his information in a reliable way.’ ” United States v. Smith, 462 F.2d 456, 459 (8th Cir. 1972).

Id., 235 Pa.Super. at 394, 344 A.2d at 523. Furthermore, the second informant’s statement concerning the location of the marijuana in the fishing tackle box was based on her personal observation rather than upon hearsay.

The second prong of the Aguilar test requires that the affidavit set forth the underlying circumstances justifying the affiant’s belief that the unidentified informants were reliable. In Commonwealth v. Ambers, 225 Pa.Super. 381, 386, 310 A.2d 347, 350 (1973), this Court identified four factors to be considered by a magistrate in deciding the credibility of an unidentified informant and the reliability of his information: (1) Did the informant give prior reliable information? (2) Was the informant’s story corroborated by another source? (3) Were the informant’s statements a declaration against interest? (4) Does the defendant’s reputation support the informant’s tip? Appellees argue that the above tests have not been met. However, it is not mandatory that all four factors be present before a warrant may issue. In re Burton, 259 Pa.Super. 20, 393 A.2d 696-97 (1978); Commonwealth v. Herron, 243 Pa.Super. 319, 334, 365 A.2d 871, 878 (1976); Commonwealth v. Ambers, 225 Pa.Super. 381, 386, 310 A.2d 347, 350 (1973).

While the record fails to disclose that any of the informants previously supplied reliable information, this Court has held that a first-time informant is not necessarily unreliable. There must, of necessity, be a first time for each informant to supply his information; otherwise no informant could ever become qualified as a reliable source. Commonwealth v. Bove, 221 Pa.Super. 345, 293 A.2d 67 (1972); Commonwealth v. Crawley, 209 Pa.Super. 70, 223 A.2d 885 (1966).

There is cross-corroboration by the second and third informants concerning the nature and location of the contraband in the fishing tackle box. While no specific dates are mentioned, the affidavit does indicate that the third informant spoke, in the present tense, on the date the warrant was issued, concerning the location of the marijuana. Appellees cite Commonwealth v. Hagen, 240 Pa.Super. 444, 446, 368 A.2d 318, 321 (1976), where we held “the mere fact that an informant has supplied one piece of information which may be corroborated does not automatically establish reliability or credibility.” However, more than one piece of information was corroborated here. As mentioned above, there was a litany of corroboration concerning drug-related activity.

The third informant spoke against his interest when he admitted purchasing marijuana and cocaine from Lonnie McClellan and Ann Marzel. In addition, we agree with the Commonwealth that this informant’s entire statement was given in such detail as to be convincing.

Finally, Ambers looks to the reputation of the defendants. “Reputation is the estimation in which one’s character is held by his neighbors or associates.” Restatement of Torts § 577, Comment b, (1938); Gaetano v. Sharon Herald Company, 426 Pa. 179, 231 A.2d 753 (1967). It is clear from the affidavit that the reputation of the Appellees amongst their neighbors was that of drug dealers. The Appellees’ callers, who knocked on the wrong door in their quest for drugs, obviously shared that view. Moreover, Lieutenant Coughlin’s knowledge of Appellee’s reputation was a “ ‘practical consideration of everyday life’ upon which an officer (or a magistrate) may properly rely in assessing the reliability of an informant’s tip”. United States v. Harris, 403 U.S. 573, 91 S.Ct 2075, 29 L.Ed.2d 723 (1971). See also Commonwealth v. Turner, 284 Pa.Super. 395, 399, 425 A.2d 1161, 1163 (1981).

The affidavit was sufficient to establish probable cause for a search at the time of its issuance. We therefore vacate the Orders of the court below and remand for further proceedings consistent with this opinion.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

I believe, as did the lower court, that the information contained in the affidavit was too “stale” to support a finding of probable cause.

In Commonwealth v. Nycz, 274 Pa.Super. 305, 418 A.2d 418 (1980), we said:

It is well settled that probable cause for the issuance of a search warrant must be established at the time the warrant is issued, Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973); Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973); Commonwealth v. Hagan, 240 Pa.Super. 444, 368 A.2d 318 (1976), and “stale” information will thus not support a finding of present probable cause. Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973); Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582 (1975); Commonwealth v. Albert, 264 Pa.Super. 390, 399 A.2d 1106 (1979).

The standard by which we are guided in examining the affidavit underlying a search warrant is well stated in Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971):

“In order for the issuance of a search warrant to be constitutionally valid, the issuing officer must reach the conclusion that probable cause exists at the time he issues the warrant. Such a decision may not be made arbitrarily and must be based on facts which are closely related in time to the date the warrant is issued. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); Durham v. United States, 403 F.2d 190 (9th Cir. 1968); Schoeneman v. United States, 317 F.2d 173 (D.C. Cir. 1963); and Dandrea v. United States, 7 F.2d 861 (8th Cir. 1925). See also IV Wharton Criminal Law and Procedure § 1546 (12th Ed. 1957), and authorities cited in 100 A.L.R.2d 525 (1965). If the issuing officer is presented with evidence of criminal activity at some prior time, this will not support a finding of probable cause as of the date the warrant issues, unless it is also shown that the criminal activity continued up to or about that time.” Id. [444 Pa.] at 113-14, 281 A.2d at 899.

Id., 274 Pa.Super. at 308-09, 418 A.2d at 420.

See also Commonwealth v. Tolbert, 492 Pa. 576, 424 A.2d 1342 (1981).

Here, the affidavit provided the magistrate with no information of criminal activity “closely related in time to the date the warrant . . . issued.” The affidavit stated that the affiant had “received many complaints from neighbors . . . over the last several months relating to an unusual amount of activity at 1619 Manor.” It did not state either when the complaints had been received or when the activity complained about had occurred. The affidavit next identified an informant—a married woman neighbor with a family who had resided “at her present address for several years”— as having said that “on many occasions” people had knocked on her door and had asked for drugs, telling her that “Lonnie” was to have “the stuff” for them. However, the affidavit did not state when the affiant had spoken with this informant or when any of the occasions described had happened. The affidavit next identified a second informant— also a married woman neighbor—as having said that she saw marijuana in a fishing tackle box in the living room at appellees’ address. Again, however, the affidavit did not state when the affiant had spoken with this informant or when she saw the marijuana. The affidavit next stated that “approximately two months ago” the affiant himself had attended a community meeting of “irate neighbors . . . demanding a stop to dope sells.” Finally, the affidavit stated that on November 21, 1979—the date of the affidavit—an informant—described as someone who had been in appellees’ house and who had, at some unspecified occasion or occasions, bought drugs from them—told the affiant that appellees were “dealing heavy in marihuana and Coke” and that he had seen cocaine, marijuana, and stolen beer in appellees’ house “as recently as a month ago.”

Thus, none of the information was specifically dated, and the most recent information provided the magistrate was at least a month old. Standing alone, such information could not support a finding that it was probable that the evidence sought was at the premises to be searched. Commonwealth v. Shaw, supra, 444 Pa. at 113, 281 A.2d at 899. See also Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582 (1975) (five month old information stale); Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973) (61 day old information stale); Commonwealth v. Hagen, 240 Pa.Super. 444, 368 A.2d 318 (1976) (information at least one and one-half months old stale); Commonwealth v. Novak, 233 Pa.Super. 236, 335 A.2d 773 (1975) (seven week old information stale); Commonwealth v. Suppa, 223 Pa.Super. 513, 302 A.2d 357 (1973) (16 day old information stale without evidence of continuing activity); Commonwealth v. Bove, 221 Pa.Super. 345, 293 A.2d 67 (1972) (34 day old information stale).

However, as the majority points out, “evidence of criminal activity at some prior time” may “support a finding of probable cause as of the date the warrant issues” if “itfis also shown that the criminal activity continued up to or about that time.” Commonwealth v. Shaw, supra, 444 Pa. at 113-14, 281 A.2d at 899.

In Commonwealth v. Eazer, supra, the Court said:

If, however, it is demonstrated that criminal activity has in fact continued, then the relevant information, in spite of its vintage, may not be deemed stale ....
Evidence, to demonstrate continuing conduct, must establish actual continuity of the illegal enterprise. A police officer’s unsubstantiated impression that a particular crime is of the sort which usually is continuing is not sufficient; nor may a magistrate issue a warrant upon such an impression.
Id., 455 Pa. at 324, 312 A.2d at 399-400 (emphasis added; citations omitted).

See also Commonwealth v. Jackson, supra; Commonwealth v. Nycz, supra; Commonwealth v. Hagen, supra; Commonwealth v. Suppa, supra.

It is true that the affidavit reports the third informant as having told the affiant—on the day that the warrant was issued—that appellees “are dealing heavy in marihuana and Coke,” “that cocaine is kept under a bed in the upstairs bedroom & that the marijuana is in a fishing tackle box,” and that appellees “delivers [sic] both drugs and or beer on request.” In quoting these statements, the majority emphasizes that they are in the present tense. At 641. However, the affidavit identifies the informant as someone who saw the drugs and beer “as recently as a month ago.” Nothing suggests that his statements, albeit phrased in the affidavit in the present tense, were based on any information more recent than a month old.

Thus, the most recent information regarding any continuing activity was at least one month old. The majority, however, finds, at 641, that it was probable that appellees’ illegal activities continued up to the time the warrant was issued because of “the nature of the criminal activity” and the fact that “a series of illegal acts [were] observed over a period of time.” Commonwealth v. Suppa, supra, 223 Pa.Super. at 516 n. 1, 302 A.2d at 358 n. 1. I agree that probable cause may dissipate more slowly when the suspected illegal activity is the sale of drugs on a large scale—rather than possession of drugs—when there is evidence that the activity has continued over a substantial period of time in the past. I do not believe, however, that we can assume that such illegal enterprises continue indefinitely.

I should therefore affirm the order of the lower court.

      . 35 Pa. Cons.Stat.Ann. § 780-113(a)( 16) & (30) (Purdon 1977).

      . Appellant’s Brief p. 12.

      . Appellee McClellan’s first name is Alonzo.


author: STRANAHAN, Judge:

text:
    436 A.2d 645
    COMMONWEALTH of Pennsylvania v. Steven A. JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Argued June 12, 1979.
    Filed Oct. 23, 1981.

      Sara Duffy, Philadelphia, for appellant.
    Denis P. Cohen, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       President Judge John Q. Stranahan of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.
      Judge Leonard Sugerman of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.

   STRANAHAN, Judge:

This matter is an appeal from the judgment of sentence imposed upon the appellant following his conviction on four counts of robbery, one count of burglary, one count of criminal conspiracy, and one count of possession of an instrument of crime. We affirm.

The facts of this case are as follows: At approximately 1:15 p. m. on September 27, 1976, the appellant and Jerome Parks stopped James Dixon as he was leaving the home of Gladys Drayton at 806 South 13th Street, Philadelphia, Pennsylvania. The appellant put a gun to Dixon’s head and, with the help of Parks, pushed him back into the Drayton house. Once inside the house, Dixon was taken to the dining room where several people were playing cards at the time. At that point, one of the intruders shouted, “This is a stick-up” and ordered everyone present to lie on the floor. While the appellant continued to hold the gun to Dixon’s head, a third man proceeded to rob the people located in the dining room. Those people included Gladys Drayton, Alonzo Hart, Harry McNeal and Dixon. During this time, Parks remained in the dining room hallway behind the appellant and Dixon. Once the robberies were completed, the appellant and Parks ran out of the house. The incident lasted approximately five minutes.

At the time this incident took place, the Drayton house was under surveillance by Detectives Simerson and McGoldrick of the Philadelphia Police Force. They were in plain clothes and in an unmarked car.

Detective Simerson saw the appellant and Parks enter the Drayton house. Approximately five minutes later, both Detective Simerson and Detective McGoldrick saw the appellant running from the Drayton house carrying a .45 caliber revolver and Parks following him. After leaving the house, the appellant and Parks fled on bicycles. Detectives Simerson and McGoldrick started to follow them. At that point, Gladys Drayton ran from the house screaming, “robbery, robbery.” As a result, Detectives Simerson and McGoldrick began active pursuit of the appellant and Parks. There was an eight block chase. For a brief period of time, the officers lost sight of the appellant. When the officers overtook the appellant, Detective Simerson flashed his badge in the appellant’s direction and shouted, “Police, pull over.” The appellant did not. Instead, he pulled out his revolver and swung it at Detective Simerson. The appellant was then forced off his bike and taken into custody by Detectives Simerson and McGoldrick.

After the appellant was taken into custody, he was placed in a police wagon and transported to Broad and Christian Streets, one block from the site of the Drayton robbery. There, Gladys Drayton was waiting. She identified the appellant as “the one who had the gun and was going to kill the baby.” This identification occurred within five minutes after the appellant had begun his flight from the Drayton house.

The appellant has raised sixteen issues for the Court’s consideration. Those issues are as follows:

1. The appellant contends that the police lacked probable cause to arrest him.

2. The appellant contends that he should have been informed of his Miranda rights as soon as he was taken into custody.

3. The appellant contends that his arrest should have been quashed because he was not promptly arraigned.

4. The appellant contends that the lower court erred in refusing to discharge him pursuant to Pa.R.Crim.P. 1100 where the suppression hearing did not take place until immediately before his trial commenced.

5. The appellant contends that the lower court erred in refusing to suppress the in-court identification testimony of Gladys Drayton, Alonzo Hart, Debra Battles, Detective Simerson and Detective McGoldrick.

6. The appellant contends that the lower court erred in refusing four of his requested points for charge on the question of the reliability of identification testimony.

7. The appellant contends that the trial judge erred in refusing to recuse himself after he had presided over the appellant’s suppression hearing.

8. The appellant contends that the lower court erred in refusing to grant his motion for severance.

9. The appellant contends that the lower court erred in refusing to dismiss juror No. 3 after juror No. 4 allegedly told him of her fears of a possible threat to her safety.

10. The appellant contends that the lower court erred in overruling his hearsay objection to the testimony of Debra Battles concerning a statement Jeffery Savage made to the police shortly after the Drayton robbery took place.

11. The appellant contends that the lower court erred in permitting the Commonwealth to cross examine defense witness, Russell McNish, as to McNish’s use of heroin at the time the Drayton robbery took place.

12. The appellant contends that the lower court erred in denying him the right to cross examine Detective Steven Posivak in regards to a statement in a police report attributed to James Dixon.

13. The appellant contends that the lower court erred in overruling his objection to the introduction into evidence of the .45 caliber revolver seized from him at the time of his arrest.

14. The appellant contends that the lower court erred in ordering the jurors to initial their verdict slips.

15. The appellant contends that the lower court erred in refusing to grant his request to close after the Commonwealth.

16. The appellant contends that the lower court erred in refusing to grant his motion for a new trial on the basis of after-discovered evidence.

PROBABLE CAUSE

The appellant contends that Detectives Simerson and McGoldrick lacked probable cause to arrest him. In essence, the appellant argues that Detectives Simerson and McGoldrick did not have sufficient information within their possession to warrant a conclusion -that the appellant had committed a robbery.

Probable cause to arrest exists where the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a reasonable man to conclude that an offense has been committed and the person to be arrested has committed that offense. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). The facts and information within the arresting officer’s possession used to determine whether or not probable cause existed may be derived from hearsay evidence. Commonwealth v. Bosurgi, supra.

In the case at hand, there is no question that Detectives Simerson and McGoldrick had probable cause to arrest the appellant. They saw the appellant enter the Drayton home with Parks. Five minutes later, they saw appellant run from the Drayton home carrying a .45 caliber revolver and attempt to leave the scene on a bicycle. A few moments later, they saw a woman run from the Drayton home and heard her scream “robbery, robbery.” When they tried to stop the appellant, he swung his gun at Detective Simerson. In the opinion of this Court, those facts and circumstances are sufficient in themselves to warrant a reasonable man to conclude that a robbery had been committed and that the appellant had committed that robbery.

MIRANDA WARNING

The appellant contends that he should have been informed of his Miranda rights as soon as he was taken into custody. Since he was not, the appellant argues that his arrest should have been quashed.

There is no requirement that Miranda warnings be given unless and until the police seek to question a suspect. Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976).

DELAY IN PRELIMINARY ARRAIGNMENT

The appellant contends that there was an unnecessary delay between the time he was arrested and the time he was preliminarily arraigned. On the basis of that contention, the appellant asserts that his arrest should have been quashed.

There may or may not have been an unnecessary delay between the time the appellant was arrested and the time he was preliminarily arraigned. Even if there was, however, that fact would not require a court to quash the appellant’s arrest. Where there has been such a delay, a court must suppress any evidence obtained as a result of the delay. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). There is no requirement that an arrest be quashed for such a delay.

RULE 1100

The appellant contends that the lower court erred in refusing to discharge him pursuant to Pa.R.Crim.P. 1100 where the suppression hearing did not take place until immediately before his trial commenced. The appellant asserts that he was prejudiced by this situation in that there was no time to transcribe the notes of testimony from the suppression hearing for use by him during his cross examination of the Commonwealth’s witnesses.

Initially, the Court must point out that the appellant has raised the wrong issue. The appellant does not contend that he was not brought to trial within 180 days after the criminal complaint was filed. The appellant merely asserts that he was prejudiced by the timing of the suppression hearing in relation to the start of his trial. Hence, the issue the appellant should have raised and the issue the Court will consider is whether or not the lower court abused its discretion in denying the appellant’s motion for a continuance.

The refusal to grant a continuance to enable defense counsel to obtain a transcript of the suppression hearing for use in cross examination at trial is grounds for reversal only when a defendant can show that he was actually prejudiced by that refusal. Commonwealth v. McKelvie, 471 Pa. 541, 370 A.2d 1155 (1977).

The appellant has neither alleged nor shown that he was actually prejudiced by the lower court’s refusal to grant a continuance. All the appellant has done is made a general and unsupported allegation of prejudice. The appellant’s claim of prejudice is negated by the fact that the lower court made available the services of a court reporter to the appellant’s attorney throughout the appellant’s trial for the purpose of reading back portions of the suppression hearing testimony upon request. See Commonwealth v. McKelvle, supra.

In an attempt to show that he was prejudiced by the lower court’s refusal to grant a continuance, the appellant asserts that on two occasions, the trial judge refused his request to have the court reporter read back portions of the suppression hearing testimony. On both those occasions, however, the appellant did not make such a request. On each occasion, the appellant only asked for a copy of the suppression hearing testimony. He did not ask to have the court reporter read back portions of the suppression hearing testimony.

IN-COURT IDENTIFICATION TESTIMONY

The appellant contends that the lower court erred in refusing to suppress the in court identification of him as the man with the gun during the robbery by Gladys Drayton, Debra Battles, Alonzo Hart, Detective Simerson and Detective McGoldrick. The appellant’s objection to the identification testimony of Drayton, Battles and Hart is based on his assertion that their identification was the result of an unduly suggestive confrontation. As to the identification testimony of Detectives Simerson and McGoldrick, the appellant asserts that their testimony was not credible because they could not have gotten a good look at him from where they were located at the time he allegedly fled from the Drayton home.

Where an in-court identification has a basis sufficiently independent from an unduly suggestive confrontation, that identification is admissible regardless of any taint found to exist in the confrontation procedure. Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974). Such a basis may be found where the witness had a sufficient opportunity to observe the individual during the crime. Commonwealth v. Diggs, 260 Pa.Super. 349, 394 A.2d 586 (1978), or where the witness had seen the individual on occasions prior to the time the crime was committed. Commonwealth v. McKelvie, supra.

As to the confrontation involving Gladys Drayton, the appellant asserts that her in-custody-at-the-scene identification of him as the “man with the gun” was unduly suggestive.

Absent some special elements of unfairness, however, a prompt in-custody-on-the-scene identification is not unduly suggestive. Commonwealth v. Turner, 454 Pa. 520, 314 A.2d 496 (1974).

This Court finds that there were no special elements of unfairness in Drayton’s prompt in-custody-on-the-scene identification of the appellant. The identification took place within five minutes after the robbery. The police never told her that the appellant was one of the robbers. They simply asked her if he was one of the robbers. Under those circumstances, it is clear that Drayton’s on-the-scene identification of the appellant was not unduly suggestive.

Hence, Drayton’s in-court identification of the appellant was not tainted by any unduly suggestive confrontation.

As to the confrontation involving Debra Battles, the appellant asserts that her one on one identification of him at the police station was unduly suggestive.

That confrontation may or may not have been unduly suggestive. Whether it was or not, however, is immaterial because Battles had a sufficient basis for identifying the appellant independent from that confrontation. Prior to the robbery, Battles had seen the appellant in the neighborhood at various times. Although she did not know his name, she recognized his face. Also, Battles clearly saw the appellant’s face as he entered and left the Drayton home during the robbery.

As to the confrontation involving Alonzo Hart, the appellant simply asserts that an unduly suggestive confrontation occurred. The appellant does not point out when this confrontation occurred or why it was unduly suggestive.

Even if the Court assumes that such a confrontation did take place, however, Hart still had a sufficient basis for identifying the appellant independent from such a confrontation. Hart saw the appellant enter the Drayton home. During the robbery, he was only a few feet from the appellant and saw the appellant’s face clearly for approximately three minutes.

As to the appellant’s objections to Detectives Simerson’s and McGoldrick’s in-court identification, the appellant’s argument deserves no comment. The question of credibility is one for the trier of fact, not the appellate courts.

POINTS FOR CHARGE

The appellant contends that the lower court erred in refusing four of his points for charge on the question of the reliability of identification testimony.

“It is well settled that [a] trial court is not required to accept the language of requested instructions submitted by counsel, but is free to select its own form of expression, so long as the issue is adequately, accurately and clearly presented to the jury for its consideration.” Commonwealth v. Bey, 249 Pa.Super. 185, 196, 375 A.2d 1304, 1310 (1977).

Our examination of the record discloses that the Court gave a complete and careful statement on the reliability of identification testimony in its charge to the jury. Hence, the lower court was not required to give the appellant’s request points verbatim. Commonwealth v. Bey, supra.

RECUSAL

The appellant contends that the trial judge erred in refusing to recuse himself after he presided over the appellant’s suppression. This contention is based on the appellant’s assertion that the trial judge was prejudiced against him as a result of presiding over the suppression hearing. Hence, the appellant argues, he was denied a fair trial as a result of the trial judge’s refusal to recuse himself.

The appellant was tried before a jury. Hence, the appellant would not have been prejudiced by the fact that the trial judge also presided over the appellant’s suppression hearing. Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976).

SEVERANCE

The appellant contends that the lower court erred in refusing to grant his motion for severance. This contention is based on the appellant’s assertion that he was prejudiced by being tried with the other defendants in this case since the identification witnesses did not agree on the identity of all of the robbers.

“[QJuestions of consolidation or severance of defendants for trial rests in the discretion of the trial judge and his rulings on such matters will not be disturbed on appeal except for manifest abuse of discretion.” Commonwealth v. Tolassi, 258 Pa.Super. 194, 199, 392 A.2d 750, 753 (1978). Where a conspiracy is alleged, the defendants should be tried together unless it can be shown that one or more of the defendants will be actually prejudiced by doing so. Commonwealth v. Tolassi, supra.

In this case, the appellant and his co-defendants were charged with conspiracy.

After reviewing the record in this case, the Court finds that the appellant was not actually prejudiced by the lower court’s refusal to grant his motion for severance. The identification witnesses may have differed on the identity of the robbers in this case. All of the identification witnesses, however, identified the appellant as one of the robbers. Finally, all of the charges grew out of the same incident. Hence, separate trials would have resulted in a repetition of testimony and needless expenditures of time and money.

REFUSAL TO DISMISS JUROR NO. 3

The appellant contends that the lower court erred in refusing to dismiss juror No. 3, William Hannan, after juror No. 4, Doris Moore, had allegedly told him of her fears of a possible threat to her safety.

Juror No. 4 did not tell juror No. 3 of her fears of a possible threat to her safety. Juror No. 4 merely told juror No. 3 that she had “heard something in the courtroom that [she] didn’t think [she] should have” and asked his advice as to how she should handle that situation. Juror No. 3 told her to contact the trial judge. By his own admission, juror No. 3 did not know the nature of juror No. 4’s problem. Juror No. 3, therefore, could not have been prejudiced by juror No. 4’s fears. Hence, the lower court did not err in refusing to dismiss juror No. 3.

HEARSAY TESTIMONY OF DEBRA BATTLES

The appellant contends that the lower court erred in overruling his hearsay objection to the testimony of Debra Battles concerning a statement Jeffery Savage made to the police shortly after the Drayton robbery took place. The testimony in question was that she over-heard Jeffery Savage give the police a description of the robbers.

This issue was brought before this Court by the appellant’s co-defendant, Jerome Parks, in his appeal from the judgment of sentence imposed upon him following his conviction on the various charges filed against him as a result of his involvement in the Drayton robbery. Commonwealth v. Parks, 273 Pa.Super. 506, 417 A.2d 1163 (1979). In that case, this Court held that the testimony in question was hearsay and that the lower court erred in overruling the hearsay objections to that testimony. Commonwealth v. Parks, supra. This Court also held, however, that the trial judge’s error was harmless beyond a reasonable doubt because Parks had been positively identified as one of the robbers by Gladys Drayton, Debra Battles, Detective Simerson and Detective McGoldrick. Hence, “Battle’s testimony that she overheard Jeffery Savage providing police [with] a description of the fleeing robbers could not have contributed significantly to the verdict reached.” Commonwealth v. Parks, supra, at 1170.

In the case at hand, the appellant was positively identified as one of the robbers by Gladys Drayton, Debra Battles, Alonzo Hart, Detective Simerson and Detective McGoldrick. This court finds, therefore, that the trial judge’s error in overruling the appellant’s hearsay objection was harmless beyond a reasonable doubt. Commonwealth v. Parks, supra.

CROSS EXAMINATION OF RUSSELL McNISH

The appellant contends that the lower court erred in permitting the Commonwealth to cross examine defense witness, Russell McNish, as to McNish’s use of heroin at the time the Drayton robbery took place. This contention is based on the appellant’s assertion that the Commonwealth failed to show that the use of two to three bundles of heroin a day, as McNish was using at the time, adversely affects the user’s powers of observation or memory. Hence, the appellant argues, the Commonwealth’s purpose in questioning McNish about his drug usage was to impeach his credibility by blackening his reputation and not to impeach his credibility by showing that his powers of perception were impaired at the time.

“Questions pertaining to the use of drugs or alcohol are proper when asked for the purpose of attacking [the] credibility of [a] witness by showing at the time of the event to which he testified his powers of observation and memory were impaired so that his recollection and account of the experience might be inaccurate.” Commonwealth v. Duffy, 238 Pa.Super 161, 163, 353 A.2d 50, 57 (1975).

There is no requirement that the Commonwealth introduce scientific evidence that use of the drug in question weakens a person’s powers of observation or memory before or after cross examining a witness as to his use of that drug at the time of the event in question. Hence, the lower court did not err in permitting the Commonwealth to cross examine Russell McNish as to his use of heroin on the day the Drayton robbery took place.

CROSS EXAMINATION OF STEVEN POSIVEK

The appellant contends that the lower court erred in denying him the right to cross examine Detective Steven Posivak in regards to a statement in a police report attributed to James Dixon. That statement indicated that Dixon believed that the man who held the gun to his head during the Drayton robbery had also robbed him at an earlier date. The appellant, however, could not have committed the earlier robbery since he was incarcerated at the time it took place. The appellant wanted to use that statement to impeach the credibility of the police report and James Dixon’s testimony.

The police report in question was never introduced into evidence at the appellant’s trial. Hence, its credibility was wholly irrelevant to the proceedings.

At the appellant’s trial, James Dixon testified, in essence, that an unidentified man had put a gun to his head during the Drayton robbery. Dixon did not and could not identify the appellant as that man. Hence, there was no identification testimony to be impeached.

GUN

The appellant contends that the lower court erred in overruling his objection to the introduction into evidence of the .45 caliber revolver seized from him at the time of his arrest. In support of this contention, the appellant points out that none of the robbery victims identified the gun as the one the appellant held to James Dixon’s head during the robbery. Hence, the appellant argues, the Commonwealth failed to prove that the gun seized from him when he was arrested was the gun used during the robbery.

In Commonwealth v. Wortham, 235 Pa.Super. 25, 342 A.2d 759 (1975), this Court held that:

Positive testimony that the challenged item is the actual weapon used in the commission of the crime is not required prior to its introduction into evidence... All that is demanded is that a proper foundation be laid revealing circumstances sufficient to justify an inference of the likelihood of the weapon’s use in the course of crime. . . Furthermore, the admission of such demonstrative evidence is a matter within the discretion of the trial judge, and absent an abuse of discretion, that decision will not be disturbed. Commonwealth v. Wortham, supra, 235 Pa.Super. at 31 and at 763, 342 A.2d 759.

In the case at hand, Gladys Drayton and Alonzo Hart testified that the appellant used the only gun in the robbery. Debra Battles testified that the appellant held a .45 caliber revolver to James Dixon’s head. Detective Simerson identified the challenged revolver as the same gun he saw the appellant carrying in his hand when he fled from the Dray-ton home and the same gun the appellant pulled from his belt when he ordered the appellant to stop.

On the basis of that evidence, this Court finds that there was a proper foundation for the introduction of the challenged .45 caliber revolver and, as a result, that the lower court did not abuse its discretion in admitting that gun into evidence.

VERDICT SLIPS

The appellant contends that the lower court erred in ordering the jurors to initial their verdict slips. This contention is based on the appellant’s assertion that doing so would infringe on the appellant’s right to have the jury polled after the verdict was announced since it might restrict the jurors’ freedom to change their minds after the verdict had been announced.

This issue was also brought before this Court by the appellant’s co-defendant, Jerome Parks, in his appeal. Commonwealth v. Parks, supra. In that case, this Court stated:

We disapprove of the trial judge’s instruction, and take this occasion to say that it should not be used again, for it runs too great a risk of diminishing, or undermining, a fundamental right of the accused. Were this case close, we should award a new trial, so that the risk might be entirely avoided. As noted above, however, the evidence of the robbery and of appellant’s participation is so strong that we do not believe that a new trial is required. Other parts of the judge’s instruction made it clear that each juror must make an independent judgment of appellant’s guilt. The judge charged that “each juror must decide the case for himself,” and should not agree to the verdict if it does “violence to individual judgment.” (N.T. 904). The judge further charged that “a juror should not hesitate to re-examine his own views and change his opinion if convinced it is erroneous.” (N.T. 904). Given these instructions, we believe that it would be an overstatement to say that the instructions to initial their verdict slips worked a defacto denial of the appellant’s right to poll the jurors. Commonwealth v. Parks, supra, at 1171.

In the case at hand, evidence of the appellant’s participation in the Drayton robbery is as strong as that of Parks’ participation, if not stronger. Hence, this Court finds that the lower court did not commit reversible error by instructing the jurors to initial their verdict slips.

ORDER OF CLOSING

The appellant contends that the lower court erred in refusing to grant his request to close after the Commonwealth. This contention is based on the appellant’s assertion that making the defense close before the Commonwealth is unconstitutional.

The appellant’s contention is without merit. Requiring the defense to close before the Commonwealth is constitutional. Commonwealth v. Brown, 470 Pa. 274, 368 A.2d 626 (1976).

AFTER-DISCOVERED EVIDENCE

The appellant contends that the lower court erred in refusing to grant him a new trial on the basis of after-discovered evidence. The after-discovered evidence in question is the testimony of Robert Battles, an eyewitness to the crime who was not called at the appellant’s trial, that the appellant was not one of the men who committed the Drayton robbery, and a recantation by Gladys Drayton to the effect that she was no longer sure that the appellant was one of the men who robbed her.

On April 25, 1978, the lower court held an evidentiary hearing on this matter. The following evidence was introduced at that hearing: Robert Battles was present during the Drayton robbery. The appellant and the Commonwealth first became aware of this fact on the first day of the three day suppression hearing that proceeded the appellant’s trial. Through-out the trial, Robert Battles lived with his sister, Debra Battles, and his grandmother, Gladys Drayton. He was at the courthouse for the second day of the appellant’s suppression hearing. While there, an assistant district attorney spoke to Battles in the hallway outside the courtroom. At that time, Battles told the assistant district attorney that there were four men involved in the robbery and he did not exculpate the appellant.

The appellant met Battles at the Holmesburg Prison after the appellant’s trial. At that time, Battles agreed to do anything we could to help the appellant.

If called to testify, Battles would state that there were only two men involved in the robbery and the appellant was not one of them. The two men Battles would identify as being the robbers were Donald Robinson, who died before he could be brought to trial for his involvement in the robbery and Van McWhorter, who was acquitted of the robbery.

Finally, Gladys Drayton testified that she no longer was sure that the appellant was one of the men who robbed her. When asked whether or not she told the truth at the appellant’s trial, however, Drayton responded, “I thought I was telling the truth. Like I still say, I seen somebody who looked just like them” and “the person with the gun looked like . . . Johnson [the appellant].”

“A new trial in a criminal case will be awarded on the ground of after-discovered evidence where the evidence in question (1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted.” Commonwealth v. Coleman, 438 Pa. 373, 376-77, 264 A.2d 649, 651 (1970).

Applying that test to the after-discovered evidence in the case at hand, it is the opinion of this Court that the appellant is not entitled to a new trial on the basis of that evidence.

Robert Battles was clearly available during the appellant’s trial. The appellant, through the exercise of reasonable diligence, could have located Battles and interviewed him. Moreover, Battles’s testimony is not of such a nature and character that a different verdict would likely result if the appellant is granted a new trial. First, Battles’s credibility is suspect given his prior inconsistent statement to the assistant district attorney and the circumstances surrounding his agreement to help the appellant. Second, the evidence against the appellant is overwhelming.

The change in Gladys Drayton’s testimony is not evidence of such a nature and character that it would likely result in a different verdict if the appellant were re-tried. At most, Drayton is no longer sure that the appellant is one of the men who robbed her. She admits, however, that he looks like one of the men. Given the other eyewitness identifications and the testimony of Detective Simerson, this Court finds that this change in Gladys Drayton’s testimony does not entitle the appellant to a new trial.

The judgment of sentence is affirmed.

SPAETH, J., concurred in the result.

      . 18 Pa.C.S. 3701.

      . 18 Pa.C.S. 3502.

      . 18 Pa.C.S. 903.

      . 18 Pa.C.S. 907(a).

      . On the first occasion, the court reporter did read back the requested portion of the suppression hearing testimony. On the second occasion, there was no inconsistency in the testimony. Hence, a copy of the suppression hearing transcript would have been of no use to the appellant on that occasion.

      . In addition, Drayton’s in-court identification of the appellant originated from a basis clearly independent from her in-custody-on-the-scene identification. For a period of approximately two or three minutes during the robbery, she was able to look directly at the appellant’s face while he held a gun to Dixon’s head.

      . The requested points for charge were:
      7. The identification of strangers is proverbially untrustworthy.
      8. A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification... And, the dangers for the suspect are particularly grave when the witnesses’ opportunity for observation was insubstantial and thus, his susceptibility to suggestion the greatest.
      9. Doubtless, a man seen in handcuffs or through the grill of a police wagon looks more like a crook than the same man standing at ease or liberty.
      11. The circumstances of witnesses viewing the suspect or suspects together with other witnesses and identifying a suspect in each other’s presence is a procedure fraught with dangers of suggestion.

      . The appellant also asserts that he was prejudiced by the lower court’s decision to suppress certain out of court identifications by Commonwealth witnesses. At the suppression hearing, however, the lower court stated that it would conduct in camera hearings, if necessary, to insure the appropriate limitations when co-counsel desired to raise out-of-court identifications. Hence, any possible prejudice to the appellant was eliminated.

      . In essence, McNish’s testimony on direct examination was that he saw Detectives Simerson and McGoldrick arrest the appellant and, at the time, the appellant did not have a gun.