author:
TAMILIA, Judge:
      BROSKY, Judge,

text:
    489 A.2d 906
    COMMONWEALTH of Pennsylvania v. Keith ALLEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1984.
    Filed March 8, 1985.

      Robert G. Kochems, Mercer, for appellant.
    James P. Epstein, Assistant District Attorney, Sharon, for Commonwealth, appellee.
    Before BROSKY, TAMILIA and ROBERTS, JJ.
   TAMILIA, Judge:

Appellant brings this appeal from the judgment of sentence entered February 23, 1983 in the Court of Common Pleas of Mercer County. In a jury trial, appellant was convicted of burglary and simple assault, and sentenced to a term of imprisonment of four years to ten years on the burglary conviction. No sentence on the simple assault conviction was imposed. See 18 Pa.C.S.A. § 3502(d). Appellant filed a Motion to Modify the Sentence and Post-Trial Motions which were denied by the lower court.

Appellant challenges the propriety of the sentence imposed. He contends that the sentencing court impermissibly relied on the pre-sentence report because it did not indicate the dispositions of approximately twelve prior arrests allegedly involving appellant. Appellant also contends that his fifth amendment right against the self-incrimination was abridged because he was compelled to answer questions put to him by the sentencing court regarding the dispositions of those arrests. Lastly, appellant contends that the sentence imposed is excessive. We find these contentions meritless, and, therefore, affirm.

Sentencing was conducted over the course of three separate days. On February 11, 1983, appellant appeared before Judge Fornelli at which time questions arose pertaining to the presentence report indicating twelve prior arrests allegedly involving appellant. Trial counsel and the court engaged in the following colloquy:

MR. KOCHEMS [trial counsel]: ... I would like to point out that we have some problem with the number of arrests shown and as having taken place in Ohio. The incidents are not specific enough and cover an extensive period of time, nor do they reflect dispositions in that we are able to determine whether or not those were all this particular Keith Allen’s. He does have some recollection of at least one arrest in Ohio and being on probation therefor....
THE COURT: How may of the prior records do you question?
MR. KOCHEMS: All of them except, perhaps, one theft charge, Your Honor.
THE COURT: I’m not going to sentence this man this morning if there is any question on his prior record which weighs very heavily on his sentence I intend to impose on him____
... As soon as your attorney has completed to his satisfaction and met with the presentence investigator on this and they have arrived at some understanding then we will set a sentence specially. We won’t require that you sit there for another month wondering what is going to happen. (N.T. pp. 3-5)

On February 15, 1983, appellant and trial counsel reappeared before Judge Fornelli at which time trial counsel informed the court that he was unable to corroborate the arrest record, and that appellant would refuse to answer the court’s questions regarding it on fifth amendment grounds. The following colloquy ensued:

THE COURT: Mr. Kochems, as you know at the sentence in this case you had indicated that you had not had an opportunity to fully verify the prior record of the defendant and that there was some question as to the prior record.
I would like to know which, if any, of the prior record data on the P.S.I. is considered to be inaccurate?
MR. KOCHEMS: Your Honor, it is our position, not that we didn’t have the opportunity to verify it, but it does not reflect the disposition of the charges in Ohio, except in one instance. It is our position, therefore, under Section 9737 of the 42 Pennsylvania Consolidated Statutes that the record is not admissible and may not be considered by the Court.
THE COURT: Well, I suppose the first thing is to ask Mr. Allen.
MR. KOCHEMS: Your Honor, we don’t believe Mr. Allen has to cooperate in a pre-sentence report and he has an absolute right to maintain silence at this time because he has post-trial motions pending and that, we think, this goes to some type of jeopardy that he would be placed in by the Court.

After further dialogue between the court and counsel, the court, expressing the belief defendant had the obligation to answer questions regarding prior offenses to the court, continued the proceeding to permit counsel to brief the issue. (N.T. pp. 6-8, 15). Sentencing was reconvened on February 23, 1983, during which the following colloquy ensued:

THE COURT: Mr. Kochems, my thought is to order of record that the Commonwealth will not be permitted for purposes of any retrial of the two cases in which Mr. Allen now stands for sentencing, that the Commonwealth may not use any of the prior record that appears in the presentence investigation,____
What is your position concerning this?
MR. KOCHEMS: ... [.] [I]t would seem to us we have a right to stand on a straight noncompliance, or noncooperation in making any kind of statement at all....

Further dialogue ensued in which the court expressed its concern about obtaining accurate information in relation to the sentencing report stating in particular:

We can see there is no disposition on a number of them. But what I want to talk about, Mr. Kochems, is not what is absent there. I want to talk about what is present there.
I want you to tell me if it’s incorrect. I want you to tell me, as this man’s attorney, why I can’t rely on this as an accurate statement as to whether or not he has been arrested twelve times before.
Now if you are indicating the first or the second, or third are inaccurate because they never occurred, fine. If you tell me that the date is wrong, fine. If you tell me that the offense is wrong, fine. If you tell me the place of the arrest is wrong, fine. Please don’t keep telling me there is no disposition, Pm aware of that. (N.T. pp. 21-31) (emphasis added)

Trial counsel then reiterated his objections, and the court continued:

THE COURT: Well, I want him to follow his attorney’s advice, that is why you are there.
After he has had the opportunity to consider it and weigh it, if it’s his decision and he has his right to have your advice in proceeding____ Further, Mr. Allen, I want you to know I am not, nor do I intend to ask you directly against your wishes whether or not this is your prior record and, furthermore, this Court will not hold you in contempt of Court if it did ask you and you refused to answer.
The only thing this Court is doing is that, if you can enlighten me in some manner why I shouldn’t rely on the prior record. I am relying on your prior record, and I want the record to be very clear of that. And I want the record to be clear that you have, on the advice of your counsel, refused in any manner to enlighten this Court as to how, or why, your prior record shouldn’t be considered.
MR. KOCHEMS: Mr. Allen has informed me that he is willing to go through what he remembers of this record with the Court. (N.T. pp. 40-41)

Trial counsel then proceeded to ask appellant about his previous arrests. Following the colloquy, the court summarized the information supplied by appellant:

THE COURT: Mr. Allen, I have read your presentence report and in great detail, and as you know, I was the trial Judge on this case .... Your prior record indicates twelve adult arrests. You have indicated to me that you have no recollection completely on three of the twelve arrests. Of the remaining nine, one you do not have a recollection as to what type of items were involved in the theft and on another one, you remember the theft but you don’t recall the disposition of it____

The court concluded:

The Court notes that you are twenty-five years of age, and you are a relatively young man, yet involved in the activities that you have indicated that you recall, and that your prior record shows. That is a rather extensive amount of activity which causes this Court some concern.
Your prior records, however, did not involve anything of a magnitude, apparently, of a burglary, and, as you know, the burglary resulted in tragic consequences, as a result of the incident, and the jury found the assault, the assault to be on this young lady, a very beautiful young lady has been grotesquely and permanently scarred for life. The record will indicate and the exhibits show that, before and after pictures, as a result of this liquid fire pouring onto her face and arms.
I believe that is one reason why the legislature makes burglaries such a serious crime, and one of the five major felonies. It’s because of the potential for injury that can result, and that certainly occurred here.
In light of the fact that according to the one of the two dispositions on your prior record shows that you were placed on two years probation in 1979, and that, obviously, didn’t work. I do not believe that probation would be called for or would be appropriate here on the burglary charge.
Now Mr. Allen, I want you to know that I considered a substantially heavier sentence, but a lot of what Reverand Newby said this morning has made an impression on me. I accept what your attorney pointed out. Reverand Newby does not step forward and speak for everybody. He rarely steps forward and speaks, and when he does, I put great weight on that. (N.T. pp. 46-47)

Sentence of four to ten years of imprisonment was imposed on the burglary conviction. In his motion to modify sentence, appellant alleged that the sentence was “illegal because is was manifestly excessive in length, because it is not specifically tailored to the nature of the offense, the ends of justice and society, and the rehabilitative needs of [appellant].”

We must first determine if the issues raised are preserved for appellate review.

It is settled that issues raised for the first time on appeal will not be addressed by the appellate court. Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983). A “[]sentence is properly challenged if the propriety of the sentence is raised either at the sentencing hearing or in a motion to modify sentence[].” Commonwealth v. Tomasso, 506 Pa. 344, 485 A.2d 395 (1983) citing Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); see also Com monwealth v. Duden, 326 Pa.Super. 73, 473 A.2d 614 (1984); but compare Commonwealth v. Warden, 335 Pa.Super. 315, 484 A.2d 151 (1984).

Appellant’s first contention is that the sentencing judge impermissibly relied on the presentence report since the report failed to indicate the dispositions of the twelve prior arrests allegedly involving appellant. Where the sentence imposed is challenged because the sentencing judge, in imposing sentence, allegedly considered an arrest record which did not disclose the disposition of the cases, the issue must be preserved for review in the sentencing court. See Commonwealth v. Isabell, supra; Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Shoemaker, 462 Pa. 342, 341 A.2d 111 (1975). Appellant’s first contention was argued at the sentencing hearing, though it was not reasserted in the motion to modify. It is, therefore, preserved for review. Commonwealth v. Tomasso, supra; Commonwealth v. Duden, supra. However, appellant’s contention is meritless.

The contents of a pre-sentence report may include references to all arrests, what ever the disposition of the case. See 42 Pa.C.S.A. § 9731 et seq.; Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982); Commonwealth v. Shoemaker, 226 Pa.Super. 203, 313 A.2d 342 (1973), affirmed, 462 Pa. 342, 341 A.2d 111 (1975). “Highly relevant — if not essential — to ... [the judge’s] ... selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337, reh. denied, 337 U.S. 961, 69 S.Ct. 1529, 93 L.Ed. 1760, reh. denied, 338 U.S. 841, 70 S.Ct. 34, 94 L.Ed. 514 (1949); see also Wasman v. United States, — U.S. —, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984). In Shoemaker, the defendant contended that his sentence should have been set aside because the pre-sentence report showed that he had been arrested fourteen times, nine of which were after the arrest for the charges on which the defendant was about to be sentenced, but did not state what dispositions had been made of the arrests. The sentencing judge questioned the defendant about his prior arrest record. The defendant, in turn, supplied information to the court regarding the arrests. This Court held that the sentencing judge could consider prior unadjudicated arrests provided that the arrests were not considered as showing criminal conduct. We found that the sentencing judge improperly regarded the prior arrests as showing criminal conduct, but did not vacate the sentence since it was not excessive. Unlike the sentencing judge in Shoemaker, Judge Fornelli exercised sound judgment with respect to appellant’s record of prior arrests. He did not treat the prior arrests as convictions or give them undue weight. See Commonwealth v. Craft, 304 Pa.Super. 494, 450 A.2d 1021 (1982).

Appellant’s second contention is that his fifth amendment right against self-incrimination was abridged since he was compelled by the sentencing judge to supply the dispositions to the arrests indicated on the pre-sentence report. This is a clever but circuitous challenge to the lawful sentence based on the sentencing judge’s consideration of appellant’s answers. As with the first contention, having been raised at the sentencing hearing, it is preserved for review, Commonwealth v. Tomasso, supra; Common wealth v. Duden, supra, and as with the first, it is without merit.

Our review of the sentencing hearing shows that appellant waived any fifth amendment right against self-incrimination since he supplied information to the sentencing judge about the disposition of his prior arrests after conferring with his attorney. Appellant did so in the absence of judicial threat of contempt or threat of imposition of a harsher sentence for failing to cooperate. If appellant chose to have said nothing about his prior arrests, denied all of them, or stated he did not remember them, the sentencing judge would have been constrained to accept, when imposing sentence, that appellant had not been convicted on any of the charges. Commonwealth v. Craft, supra. As it was, appellant clarified his prior arrest record when given the opportunity to explain it, and the sentencing judge was more or less bound by appellant’s answers that he, appellant, was convicted on three of the charges and could not recollect, in varying degrees, most of the others. We think individualized sentencing makes it imperative that a sentencing judge not be deprived of an opportunity to obtain pertinent information. Likewise, we think it important that a defendant or his counsel take advantage of the opportunity to clarify a prior arrest record, as well as other aspects of the pre-sentence report if need be. Also, if the sentencing judge had remained silent concerning the reported prior offenses, an inference could be raised that he was influenced by them improperly.

We note further that “the privilege against self-incrimination in its pure form has no direct application to a determination of the proper sentence to be imposed.” Commonwealth v. Travaglia, 502 Pa. 474, 499, 467 A.2d 288, 300 (1983) cert. denied, Travaglia v. Pennsylvania, — U.S. —, 104 S.Ct. 3547, 82 L.Ed.2d 850. This is because the “ ‘sentencing phase’ of the trial has a different purpose than the ‘guilt phase’ and different principles may be applicable.” Id.; see also Commonwealth v. Burton, 451 Pa. 12, 301 A.2d 675 (1973). Since appellant had been found guilty beyond a reasonable doubt of burglary and simple assault without any infringement on his right against self-incrimination, he cannot complain. However, we are mindful that a defendant’s fifth amendment right may be burdened indirectly where he is compelled to divulge information about his prior arrest record that could incriminate him for crimes for which he had neither been charged nor convicted. This concern is not presented here. Appellant voluntarily offered information regarding his prior arrest record. In addition, the sentencing judge, aware of the constitutional dimension, granted appellant immunity from the Commonwealth’s use of appellant’s answers in the event of retrial. Moreover, the statements made by appellant did not disclose facts which would in themselves establish guilt or constitute an essential link in the chain of evidence by which guilt can be established. See Commonwealth v. Allen, 501 Pa. 525, 462 A.2d 624 (1983); Commonwealth v. Hunter, 321 Pa.Super. 333, 468 A.2d 505 (1983).

Lastly, appellant contends that the sentence is manifestly excessive. Recently in Commonwealth v. Martin, 328 Pa.Super. 498, 501, 477 A.2d 555, 557 (1984) we stated:

This court has held that the trial judge has broad discretion in imposing sentence. Commonwealth v. Rhodes, 272 Pa.Super. 546, 416 A.2d 1031 (1979); Commonwealth v. Johnson, 235 Pa.Super. 185, 340 A.2d 515 (1975). If the sentence imposed is within statutory limits, there is no abuse of discretion, unless the sentence is manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Garrison, 292 Pa.Super. 326, 437 A.2d 407 (1981); Commonwealth v. Shoemaker, 226 Pa.Super. 203, 313 A.2d 342 (1973). Absent an abuse of discretion, a sentence imposed by the trial court will not be disturbed on appeal. Commonwealth v. Gillespie, 290 Pa.Super. 336, 434 A.2d 781 (1981); Commonwealth v. Campolei, 284 Pa.Super. 291, 425 A.2d 818 (1981); Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980).
In imposing sentence, the sentencing court must consider the particular circumstances of the offense and the character of the defendant in reaching its determination. Commonwealth v. Griffin, 279 Pa.Super. 264, 420 A.2d 1134 (1980); Commonwealth v. Goldbard, 276 Pa.Super. 193, 419 A.2d 161 (1980).

The sentence imposed was within the statutory limitation and is not so manifestly excessive as to inflict too severe a punishment. Commonwealth v. Knepp, supra. Appellant could have received a maximum sentence of up to twenty years imprisonment but instead received a sentence of four to ten years. As the record shows, the sentencing judge made a conscientious effort to sentence properly. He articulated his reasons on the record for the sentence imposed, and discussed the factors he considered in reaching the determination. After reviewing both the sentence itself and the process by which the court reached it, we conclude that the sentence was not excessive. Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983).

Judgment of sentence affirmed.

BROSKY, J., concurs with statement.

ROBERTS, J., concurs in the result.

BROSKY, Judge,

concurring:

Although I agree with the result reached in the lead opinion, I cannot agree that Commonwealth v. Tomasso, 506 Pa. 344, 485 A.2d 395 (1984), holds that sentencing issues are preserved if they are raised either at the sentencing hearing or in a motion to modify sentence. In Tomasso, the Supreme Court found that three sentencing issues which a majority of a panel of this court did not consider on the grounds of waiver in Commonwealth v. Tomasso, 311 Pa.Super. 103, 457 A.2d 514 (1983) had been sufficiently presented to the sentencing judge. The Tomasso court, however, does not clearly explain the basis for its finding.

Of the three issues found waived by the Superior Court, the first had not been raised in a motion to modify sentence; the second had not been raised at the sentencing hearing or in a motion to modify; and the third was raised only at the sentencing hearing. The Supreme Court does not expressly explain on what basis it finds that all of these issues were preserved for review.

The Tomasso court cites only the case of Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978) which was an appeal from a sentence imposed before Pa.R.Crim.P. 1410 (requiring motions to modify) was even in effect. A conclusion that Tomasso stands for the proposition that a sentencing issue can be preserved by raising it either at sentencing or in a Rule 1410 motion does not explain why the Supreme Court in Tomasso considered preserved an issue which was raised on neither occasion.

Given the ambiguity of Tomasso, I must conclude that the case of Commonwealth v. Warden, 335 Pa.Super. 315, 484 A.2d 151 (1984) still accurately states the law regarding preservation of sentencing issues. Specifically, Warden requires that all sentencing issues (except, of course, those involving a claim of an illegal sentence) must be raised in a motion to modify sentence. Since, instantly, appellant’s first and second issues were not raised in a Rule 1410 motion, I would find that they have been waived.

      . Appellant also contends that the evidence was insufficient for the jury to find him guilty of burglary beyond a reasonable doubt and that the verdict was against the weight of the evidence. After our review of the record, the applicable law, the arguments of the parties, we conclude that the lower court thoroughly analyzed and properly disposed of this issue.

      . Appellant was also to be sentenced on a conviction of retail theft in an unrelated case.

      . Trial counsel asked appellant the following:
      Q. Mr. Allen, I would like to direct your attention to 5-17 of ’74, were it’s alleged that there was a possession of stolen property charge in Youngstown, Ohio, with no disposition shown. Do you have any recollection at all of that event?
      A. Yes, sir.
      Q. What .was your recollection of that event?
      A. It was a misuse of a credit card. I had a credit card that some guy had gave me, and I had it in my coat pocket and that same night, we was riding around and the police searched everybody in the car and that is when they found the credit card.
      Q. Do you recall what, if any, disposition there was to that?
      A. You mean what kind of time I did?
      Q. Yes.
      A. I was housed in city jail before I went to trial, and then I went to trial and they gave me ten days sentence, I think. I’m not sure.
      Q. Do you have any recollection of the offense on 6-8-74?
      A. No, sir.
      Q. Do you have any recollection of the event on 9-17-74?
      A. Yes, sir.
      Q. And what is your recollection of that?
      A. It was — it was in — in, ah, Trumbull County, two sweaters.
      Q. All right. Do you have any recollection of the offense at 5-28-75?
      A. No, sir.
      Q. How about 11-11-75?
      A. No, sir. Just the petty theft. I don’t remember resisting no arrest.
      Q. And what was the petty theft involving?
      A. I don’t clearly remember.

        Q. All right. Could that have been the petty theft of 4-2 of 76, or have you no recollection of that event?
      A. I can’t remember.
      Q. How about 9-27 of 76?
      A. I can’t remember, you know, what type of items it might have been.
      Q. Was there an event about that time, that you recall, that involved a petty theft?
      A. It might have been. I can’t say no, and I can’t say yes.
      Q. How about of March 24 of 77?
      A. Yes.
      Q. What was that?
      A. I think it occurred down at Strouss’s. I don’t remember what type of items, or what the sentence was.
      Q. How about 10-16- of 79, receiving stolen property charge.
      A. I don’t remember.
      Q. And a retail theft in Hermitage, Pennsylvania?
      A. No — oh, I remember a retail theft in Hermitage, yes.
      Q. And you paid the fine and costs to Mr. Tamber?
      A. Yes, sir.
      (N.T. 41-43)

      . We note that a court, in imposing sentence, may consider prior arrests as long as the court recognizes that the defendant had not been convicted of the prior charges. Commonwealth v. Craft, 304 Pa.Super. 494, 450 A.2d 1021 (1982); see also Commonwealth v. Bryant, 312 Pa.Super. 379, 458 A.2d 1010 (1983); Commonwealth v. Straw, 238 Pa.Super. 535, 361 A.2d 427 (1976); Commonwealth v. Shoemaker, supra. Compare, Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983), Commonwealth v. Vernille, 275 Pa.Super. 263, 418 A.2d 713 (1980) (it was not improper for sentencing judge to consider defendant’s criminal activity for which he was not tried, charged or convicted as a showing of character). This is because the sentencing judge must neither ignore the presumption of innocence nor regard defendant’s prior arrest record els showing criminal conduct. Commonwealth v. Knepp, supra; Commonwealth v. Shoemaker, supra. The concern is that that the sentencing judge will conclude that defendant is guilty of those crimes and will impose a penalty more harsh than he otherwise would have imposed.

      . This issue was raised in the motion to modify and is preserved for review. We note that appellant does not allege that the sentence is excessive because the sentencing judge gave improper consideration to his arrest record. See Commonwealth v. Bryant, supra; Commonwealth v. Craft, supra; Commonwealth v. Knepp, supra; Commonwealth v. Shoemaker, supra. Nor does he allege that the sentencing judge relied in whole or in part upon impermissible consideration or misinformation. Commonwealth v. Stufflet, 322 Pa.Super. 176, 469 A.2d 240 (1983); Commonwealth v. Cruz, supra; Commonwealth v. Shoemaker, supra; see also Commonwealth v. Russo, 297 Pa.Super. 424, 444 A.2d 105 (1982); Commonwealth v. Cowan, 275 Pa.Super. 341, 418 A.2d 753 (1980). Nor is this a case where a defendant’s non-cooperation is considered as a reliable indicium of his rehabilitative disposition sanctioning the imposition of a harsher sentence. See United States v. Roberts, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980).

      . Warden also requires that certain sentencing issues also be raised at the sentencing hearing as well as in a Rule 1410 motion.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    489 A.2d 914
    John J. DRUSAK v. INSURANCE COMPANY OF NORTH AMERICA, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1984.
    Filed March 8, 1985.

      Stephen R. Mlinac, Pittsburgh, for appellant.
    Samuel R. DiFrancesco, Jr., Johnstown, for appellee.
    Before ROWLEY, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of the Court of Common Pleas of Cambria County by Insurance Company of North America (INA), appellant. The lower court granted summary judgment in favor of John Drusak, appellee, in the amount of $15,000. Upon praecipe, judgment was entered. This appeal followed, and we affirm.

This case presents a novel issue: Whether a victim can recover uninsured motorist benefits under the Pennsylvania Assigned Claims Plan even though he has recovered such benefits under his son’s insurance policy. We hold that when a victim has not been afforded “basic loss” damages through another source, he may recover from an Assigned Claims Plan insurer who is required to provide him with uninsured motorist benefits as a direct consequence of its obligation to provide him with “basic loss” coverage.

The lower court found the following facts which gave rise to the instant controversy. On the evening of September 15, 1980, appellee, a pedestrian, was crossing a street when he was struck and critically injured by Blake Cameron who was operating a motorcycle. Cameron was uninsured. Appellee resided in the same household with his son, who was insured by State Farm Mutual Automobile Insurance Company (State Farm) under the terms of a vehicle liability policy for a motorcycle. The State Farm policy was the only policy under which appellee could claim benefits. State Farm paid appellee $15,000 which was its maximum liability under the uninsured motorist provisions of its policy with appellee’s son. Appellee thereafter presented a claim through the Assigned Claims Plan to INA who was assigned his claim. INA has made basic loss payments to appellee. The only remaining claim which appellee sought in the lower court was an additional uninsured motorist benefit through the Assigned Claims Plan, or specifically from INA, which INA refused to pay.

Appellant argues, inter alia, that appellee is an “insured” under the No-Fault Act through his son’s policy and, therefore, he has no right of recovery from the designated agent under the Assigned Claims Plan.

The Pennsylvania No-Fault Act allows recovery under the Assigned Claims Plan if “basic loss” insurance is not applicable or is unavailable. 40 P.S. 1009.108(a)(1). Appellee was able to recover benefits from State Farm by virtue of 40 P.S. 1009.103 which provides that “insured” shall be defined to include:

(B) a spouse or other relative of a named insured, a minor in the custody of a named insured, and a minor in the custody of a relative of a named insured if—
(ii) in residence in the same household with a named insured.
(Emphasis added)

Therefore, as appellant argues, appellee is, indeed, an “insured”; however, such status does not necessarily deprive him of coverage under the Assigned Claims Plan since by so satisfying the definition of “insured” he does not thereby ensure recovery of “basic loss” benefits. Indeed in the instant case, no insurer other than INA was obligated to provide basic loss payments to appellee. State Farm merely paid uninsured motorist benefits. Therefore, “basic loss” benefits were unavailable to appellee. Accordingly, appellee properly sought recovery of “basic loss” benefits under the Assigned Claims Plan even though he had previously collected uninsured motorist benefits under his son’s plan. The question remains whether he is entitled to additional uninsured motorist benefits from INA.

The Uninsured Motorist Act is a separate and distinct statute from the No-Fault Act. 40 P.S. 2000, et seq.; see Brader v. Nationwide Mut. Ins. Co., 270 Pa.Super. 258, 411 A.2d 516 (1979).

The purpose of the Uninsured Motorist Law is to provide protection to innocent victims of irresponsible drivers____ [N]owhere, explicitly or implicitly, does the Act place a limit on the total amount a victim may recover if he suffers a loss resulting from the negligence of an uninsured motorist.

Harleysville M. Cas. Co. v. Blumling, 429 Pa. 389, 396, 241 A.2d 112, 115 (1968).

Our Supreme Court has expanded the recovery available to one who collects under the Assigned Claims Plan by mandating that a company (insurer) designated to provide insurance coverage pursuant to the Assigned Claims Plan is not only required to provide “basic loss” benefits but also “uninsured motorist benefits.” 40 P.S. 1009.108(a)(1), Tubner v. State Farm Mutual Automobile Ins. Co., 496 Pa. 215, 436 A.2d 621 (1981), Prudential Prop. and Cas. Ins. Co. v. Falligan, 335 Pa.Super. 195, 484 A.2d 88 (1984).

Under Section 108(b), [40 P.S. 1009.108(b)], insurers are assigned to compensate motor vehicle accident victims for whom insurance is not carried as if & policy of basic loss insurance had been issued____
[B]ecause every policy of basic loss insurance issued in Pennsylvania must include uninsured motorist coverage the right to uninsured motorist benefits under the Assigned Claims Plan follows a fortiori from a straightforward reading of the statute and the regulations promulgated thereunder.

Tubner, 496 Pa. at 217-20, 436 A.2d at 622-623.

Moreover, where an insured attempts to recover uninsured motorist benefits under more than one policy

... where the loss exceeds the limits of one policy, the insured may proceed under other available policies up to their individual limits or to the amount of the actual loss.

State Farm Mut. Auto Ins. Co. v. Williams, 481 Pa. 130, 140-41, 392 A.2d 281, 286 (1978), quoting from Pattani v. Keystone Ins. Co., 426 Pa. 332, 231 A.2d 402 (1967).

The insured may recover uninsured motorist benefits:

1. If the injured party paid the premiums of the policy and was the named insured; and
2. If the recovery under the second uninsured motorist coverage was limited to actual damages; and
3. If the recovery is not limited by the statutory exclusions.

State Farm v. Williams, 481 Pa. at 142-43, 392 A.2d at 287. The Court in Williams held that the uninsured motorist statute mandates a floor of minimum protection and that while the

legislature has permitted enhancement of that minimum protection, ... we believe the statute does not permit a dimunition of the protection below the statutory limits.

State Farm v. Williams, 481 Pa. at 139, 392 A.2d at 285. See also Sones v. Aetna, 270 Pa.Super. 330, 411 A.2d 552 (1979) where it was held that a liability-limiting provision in a policy, the effect of which was to preclude the injured person from pyramiding separate uninsured motorist coverages is in derogation of the Act and Utica v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984) which held that stacking is justified in that it (1) furthers the policy of the legislature and because (2) the intended beneficiary of an uninsured motorist policy is entitled to multiple coverage when multiple premiums are paid. The court in Utica expanded the Williams holding in that the beneficiary of the policy provision need not have paid premiums but must simply have been a “specifically intended beneficiary” entitled to “Class One” coverage with a “recognizable contractual relationship” with the insurer. Flamini v. Gen. Acc. Fire & Life Assurance, 328 Pa.Super. 406, 477 A.2d 508 (1984), Providence Washington Ins. Co. v. Rosato, 328 Pa.Super. 290, 476 A.2d 1334 (1983); Saunders v. State Farm, 294 Pa.Super. 424, 440 A.2d 538 (1982).

The Uninsured Motorist Act allegedly insures that innocent victims recover the damages they would have received had the uninsured tortfeasor maintained liability insurance ____ Stacking allows the injured insured to obtain the full benefit of all coverage paid for in premiums.

Estate of Rosato v. Harleysville Mutual Insurance, 328 Pa.Super. 278, 283, 476 A.2d 1328, 1330-31 (1984).

It should also be noted that 40 P.S. 1009.103 provides that “basic loss” shall be defined to exclude benefits for net loss sustained by an operator or passenger of a motorcycle.

Since the definition of basic loss benefits in Section 103 of the No-fault Act specifically excludes “net loss sustained by an operator or passenger of a motorcycle,” but does not mention a victim injured by a motorcycle, it must be assumed that such a victim can recover no-fault benefits under sections 201 and 202 of the Act.
Although Section 204 of the Act seems to relegate a claimant to the assigned claims plan only as a last resort, and clearly provides that the security for the payment of basic loss benefits to “an insured is the security under which the victim or deceased victim is insured,” the regulation entitled “Motorcycles” requires that where the victim is not himself an insured under a no-fault policy, “basic loss benefits coverage for pedestrians and other persons eligible to receive basic loss benefits pursuant to the Act shall be provided through the Assigned Claims Plan”.

Shrager, David, The Pennsylvania No-Fault Motor Vehicle Insurance Act (1979), § 2:5.6.2, p. 205.

INA has honored appellee’s claims for basic loss benefits but since it has refused to pay uninsured motorist benefits, which was its obligation, we affirm the judgment of the lower court.

Judgment affirmed.

      . 1974, July 19, P.L. 489, No. 176, Art. I, § 108, eff. in twelve months.

      . 1974, July 19, P.L. 489, No. 176, Art. I, § 103, eff. in twelve months.

       Section 204(a)(2)

       31 Pa.Code § 66.3(b)(2)

      . Id.


author: HESTER, Judge:

text:
    489 A.2d 918
    John E. VARNER v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1984.
    Filed March 8, 1985.

      Harvey Freedenberg, Harrisburg, for appellant.
    Neil J. Rovner, Harrisburg, for appellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   HESTER, Judge:

Appellee, John E. Varner, was severely injured in an automobile accident on October 10, 1981. His no-fault motor vehicle insurance carrier was appellant, Nationwide Mutual Insurance Company.

Appellee’s principal injuries were a fractured skull and fractured left shoulder. He was hospitalized at Geisinger Medical Center in Danville, Pennsylvania from October 10, 1981 through October 27, 1981.

While in the hospital in October 1981, appellee developed a urinary tract infection. The parties agreed that this infection was aggravated by medical maltreatment; the steroids used to reduce cerebral swelling lowered appellee’s resistance to the urinary tract infection.

Appellee was hospitalized again from October 29, 1981 through December 18, 1981 and from January 19, 1982 through June 18, 1982 primarily for treatment of the urinary tract infection. The infection spread to his lower extremities causing permanent septic arthritis in his joints. These later hospital stays resulted in medical expenses of approximately $100,000.00. The results of the infection prevent appellee from returning to work as a welder.

Appellant paid $9,703.45 in medical bills for the initial period of hospitalization, but refused to pay for the two subsequent periods. Appellant refused to pay due to its belief that the subsequent treatment was the result of medical malpractice and therefore not covered by no-fault motor vehicle insurance.

Thereafter, appellee filed a complaint in assumpsit in the Dauphin County Court of Common Pleas seeking maximum work loss benefits, attorney fees, interest and payment of all medical bills. Both parties filed motions for summary judgment. By order dated September 8, 1983, appellant’s motion for summary judgment was granted with respect only to appellee’s claim for attorney fees; appellee’s motion was granted as to all other issues. Appellant perfected this appeal from the order of September 8, 1983.

It is appellant’s contention that the work loss and unpaid medical expenses were for injuries not arising “out of the maintenance or use of a motor vehicle.” Instead, it claims they resulted from negligent medical treatment.

Basic loss benefits are payable to “an individual who suffers injury arising out of the maintenance or use of a motor vehicle.” 40 P.S. §§ 1009.201, 1009.103. “Maintenance or use of a motor vehicle” is defined in § 1009.103 as:

maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it. Maintenance or use of a motor vehicle does not include:
(A) conduct within the course of a business of repairing, servicing, or otherwise maintaining motor vehicles unless the conduct occurs off the business premises; or
(B) conduct in the course of loading or unloading a motor vehicle unless the conduct occurs while occupying, entering into, or alighting from it.

Our inquiry, therefore, is whether the urinary tract infection and complications developing therefrom were injuries which arose from the use of a motor vehicle.

As with any tort cause of action, there must be a causal connection between the use of the automobile and the injury suffered to receive basic loss benefits; the injuries must be more than coincidental. This connection in no-fault insurance cases, however, need not rise to the level of proximate cause. Schweitzer v. Aetna Life and Casualty Co., 306 Pa.Super. 300, 452 A.2d 735 (1982).

In drafting the Pennsylvania No-fault Motor Vehicle Insurance Act the Pennsylvania General Assembly intended to provide prompt and maximum benefits to all persons injured in motor vehicle accidents. Swezey v. Home Indem. Co., 571 F.Supp. 224 (D.C.Del, 1983). Furthermore, if the judiciary errs in ascertaining legislative intent when interpreting the No-fault Act, it should err in favor of the insured. Bills v. Nationwide Mutual Insurance Co., 317 Pa.Super. 188, 463 A.2d 1148 (1983).

These general policies along with applicable case law and rules of statutory construction direct us to rule in favor of coverage for appellee. Accordingly, we affirm.

Appellant cites several Superior Court decisions which held that the particular injuries were merely coincidental to the motor vehicle accident. It would have us hold the injuries sub judice were similarly too remote to warrant no-fault coverage.

In Schweitzer v. Aetna Life and Casualty Co., supra, the plaintiff was operating her motor vehicle while being pursued by an intentional tort-feasor operating a motorcycle. No collision occurred; nevertheless, when the plaintiffs vehicle came to a stop, the tort-feasor opened the plaintiff’s door, pulled her from the vehicle and struck her with his fists. Her injuries were not compensable under the Act because they had no causal connection with the use of the motor vehicle.

Similarly, in Erie Insurance Exchange v. Eisenhuth, 305 Pa.Super. 571, 451 A.2d 1024 (1982), this court denied no-fault benefits to a passenger whose driver was fleeing from a police officer. The driver refused to pay for gasoline, and the officer was in hot pursuit. When the passenger’s vehicle skidded into a ditch, the officer approached it on foot. As the pursued vehicle emerged from the ditch, the officer fired his hand gun into the car, wounding the passenger. This court held that the cause of injury was a gunshot wound and not the use of a motor vehicle; even the less restrictive “but for” standard of causation was not satisfied.

Finally, in Howe v. Harleysville Insurance Companies, 313 Pa.Super. 65, 459 A.2d 412 (1983), the plaintiff was injured while operating his jeep. A hunter shot him, believing the jeep was a deer. In denying no-fault compensation, this court opined:

The injury sustained by appellee was caused by a bullet. The connection between the injury and the insured vehicle was nothing more than mere chance or happenstance.

Id., 313 Pa.Superior Ct. at 70, 459 A.2d at 414

We do not agree with appellant that the injuries sustained by appellee were as remote to the operation of his vehicle as those suffered by the claimants in Schweitzer, Eisenhuth and Howe. The claimant was beaten in Schweitzer, and shot in Eisenhuth and Howe; their injuries did not follow unrelated injuries sustained in the use of a motor vehicle.

On the other hand, the alleged medical malpractice here, resulting in severe infection, occurred in the treatment of the injuries sustained in a motor vehicle accident. But for the accident and injuries, appellee would not have been subjected to medical treatment, competent or otherwise. It is much more probable that an individual will be hospitalized than assaulted as a result of operating a motor vehicle.

We recognize that the interpretation of “maintenance and use of a motor vehicle” is not easily derived. Where the words of a statute are unclear, we can determine legislative intent by considering the “object to be attained,” and the “consequences of a particular interpretation.” 1 Pa.C.S.A. § 1921(c). In recognizing the significant effect of motor vehicle transportation on intrastate commerce, the need for “maximum feasible restoration” of all persons injured in motor vehicle accidents, and the need for a prompt, inexpensive and comprehensive system of compensating accident victims, the General Assembly hoped to provide a “Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims____” 40 P.S. § 1009.102(a) and (b). Extending no-fault benefits to accident victims whose injuries are aggravated by medical malpractice supports this policy particularly in light of the likelihood of medical treatment.

Moreover, the consequences of not extending no-fault benefits in these cases would encourage carriers to protest often and vigorously that injuries were compounded by medical treatment. That could destroy a system designed for prompt, low-cost and “maximum possible restoration.”

For the foregoing reasons, we affirm.

Order affirmed.

      . Appellant also argues that the lower court erred in failing to designate whether the expenses claimed by appellee were allowable expenses under the No-fault Act. As this contention is meritless, it does not require further discussion.


author: CIRILLO, Judge:

text:
    489 A.2d 921
    COMMONWEALTH of Pennsylvania v. Charles NEIDIG, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 18, 1984.
    Filed March 15, 1985.

      Peter T. Campana, Williamsport, for appellant.
    Robert B. Sacavage, District Attorney, Mount Carmel, for Comm., appellee.
    Before CAVANAUGH, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

This is an appeal from judgment of sentence entered by the Court of Common Pleas of Northumberland County. Appellant was convicted of possession of a small amount of marijuana, possession with intent to deliver marijuana, and two counts of unlawful delivery of marijuana. He was sentenced to 15 to 30 days for possession of a small amount of marijuana, to run concurrently with a sentence of 21/2 to 5 years for possession with intent to deliver marijuana. For each of the unlawful delivery of marijuana charges, appellant was sentenced to 21/2 to 5 years, to begin at the expiration of and run consecutively to the sentence for possession with intent to deliver marijuana. In sum, appellant was sentenced to a minimum of 71/2 years and a maximum of 15 years. Post-verdict motions were denied, and appellant now challenges the sufficiency of the evidence presented against him, the trial judge’s denial of his motion to suppress certain evidence, the propriety of certain prosecutorial remarks made during closing arguments, and also the fairness of the sentence imposed.

Commonwealth witness Kirk J. Weaver testified at appellant’s trial. Weaver’s residence had been searched by the police, and more than a quarter pound of marijuana was found. At that time, Weaver stated that he had sold stolen property to appellant. Pursuant to a search warrant based on this statement, appellant’s residence was searched by Coal Township police. While looking for the stolen property that was the basis for the search warrant, the police discovered 24.5 grams of marijuana, as well as drug paraphernalia including scales, plastic baggies, spoons, and pipes. These items were beyond the scope of the search warrant; however, appellant gave the police written permission to seize them without obtaining a new warrant. All of these items were admitted into evidence at trial.

Weaver testified at trial that the marijuana discovered at his residence was purchased from appellant. It is appellant’s contention that Weaver’s testimony is the only evidence on record establishing any sale between the two parties, and, standing alone, is insufficient to prove the second of the two delivery of marijuana charges brought against him. Although we believe that the testimony corroborated by the physical evidence presented was sufficient to establish one delivery, we agree with appellant that the evidence as a whole was insufficient as a matter of law to prove two separate deliveries of marijuana.

At the time of his arrest, Weaver told police that the marijuana found at his residence was purchased in part from appellant and in part from someone in Harrisburg. However, Weaver testified that he lied to the police. In this connection he stated simply that all the marijuana recovered at his home was purchased from appellant. This testimony contradicted any previous statements regarding the location of a second transaction. More importantly, it negated the very existence of a second transaction. Further, Weaver testified that the marijuana was purchased from appellant approximately two days prior to his June 10 arrest, and was all in one bag at the time of sale. We therefore conclude that the evidence was insufficient as a matter of law to prove that two separate deliveries occurred.

Accordingly, we now consider which of appellant’s two delivery convictions must be reversed. Appellant was charged in one information with the delivery of one half pound of marijuana in “May/June” of 1981; in a second information, he was charged with the delivery of one half ounce of marijuana in “June” of 1981. While it is clear from the record that both the half pound and the half ounce were commingled in a single transaction, and although the record indicates that this one delivery occurred on approximately June 8, 1981, we have no way of knowing whether this is the “May/June” delivery or the “June” transaction described in the informations. In other words, the single transaction that did occur could properly be attributed to either of the two informations, since the ambiguity of the dates therein was never clarified at trial. Thus, strictly speaking, appellant’s challenge of only one of the convictions is incomplete, since the evidence could be attributed as properly to the challenged conviction as it could to the other one. However, in the interests of justice we will not allow both convictions to stand, and since the conviction for delivery of 14.5 grams of marijuana at No. CR-81-294 (the “June” transaction) is the only one challenged on this appeal, we will reverse that one and deem the transaction as having occurred in “May/June” of 1981.

Appellant argues that the trial judge erred in denying his motion to suppress the physical evidence seized from his premises. He contends that since the physical evidence was improperly admitted, and because it cannot be said that the evidence had no effect upon the jury’s verdict, a new trial is required. Commonwealth v. Parks, 273 Pa.Super. 506, 417 A.2d 1163 (1979). Specifically, appellant urges that the consent to search form that he signed is without force because it was the product of an unlawfully issued warrant, one that was based upon an insufficient affidavit. We disagree, and hold that the physical evidence was properly admitted.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court recently abandoned the inflexible affidavit requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Instead, the majority reaffirmed “the totality of the circumstances analysis that traditionally has informed probable cause determinations.” Gates at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 545. The Court stressed in Gates the propriety of a more fluid, less mechanical assessment of probable cause.

This Court has adopted the more flexible Gates approach. Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984); Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983); Commonwealth v. Sorrell, 319 Pa.Super. 103, 465 A.2d 1250 (1983). Further, we have applied Gates retroactively. Price, supra.

In the instant case, Weaver declared, against his interest, that he sold stolen property to appellant. This personal involvement in the illegal transaction provided a basis of knowledge strong enough to outweigh a lack of previous reliable tips. Further, since only two days had allegedly passed between the most recent sale of stolen property and the search, it was reasonable to assume that the stolen goods would still be at appellant’s residence. In short, we find no deficiencies in the determination of probable cause, which must be accorded the utmost deference by this Court. Gates, supra.

Appellant’s next contention is that he is entitled to a new trial because the trial court erred in denying his motion for mistrial and for cautionary instructions. The motion was made on the basis of an allegedly inflammatory and improper argument made by the district attorney during his closing argument.

Specifically, the district attorney in his closing argument said to the jury: “[The defense] can suggest to you all kinds of possible ways it might have happened, he can suggest hypotheticals, and he can suggest all types of things, and he is allowed to do that ... I ... must restrict myself to the evidence and can only discuss with you things that are in evidence and reasonable and logical inferences to be drawn therefrom.”

In urging that these comments constitute reversible error, appellant relies solely upon the similarity between the remarks made by the district attorney in the present case and those made during the Commonwealth’s summation in Commonwealth v. Long, 258 Pa.Super. 312, 392 A.2d 810 (1978), wherein undue prejudice of the jury was found. We find important distinctions between that case and the present one.

In Long, the prosecutor made a series of improper remarks. The first of these, to the effect that the prosecution was bound to operate under the truth while defense counsel’s role was simply “to get his client off,” was similar to the remarks in the present case, although more forcefully stated. However, the prosecution in Long went on to say that defense counsel was a “not guilty machine”, that the defendant should not be allowed “to sneak out under cover of smoke,” and that the jurors should consider the larger issue, namely the safety to the community in keeping the defendant off of the streets. In so doing, he directed the jurors’ attention to matters outside of the evidence. Further, the prosecutor gave his personal opinion regarding the credibility of a certain defense witness.

Each of the prosecutor’s comments in Long, standing alone, was more harmful than the remarks here at issue, yet the Court only found prejudice because of the effect that the statements had upon the jury in combination with each other. In other words, taken together, those comments formed in the minds of the jury a “fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968); Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980).

The remarks of the district attorney in the present case did not rise to such a level of impropriety. The remarks implied only that thé Commonwealth does not enjoy the same latitude as does defense counsel regarding the scope of closing arguments. The remarks here can hardly be said to create the hostility toward the defendant that was the determinative factor discussed in Simon, supra.

Appellant’s final argument is that the sentence of 71/2 to 15 years is manifestly excessive, although admittedly within statutory limits. We need not address this contention in light of our reversal of one of appellant’s convictions and because we are remanding the case for re-sentencing.

Beyond those arguments raised by the appellant, we further hold that the sentence of 15 to 30 days for possession of a small amount of marijuana was improper. The possession offense should have merged with the possession with intent to deliver offense prior to sentencing.

The illegality of a sentence is not a waivable issue. Commonwealth v. Balisteri, 329 Pa.Super. 148, 478 A.2d 5 (1984); Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). Therefore, appellant’s failure to attack the legality of the sentence will not prevent this Court from addressing the issue.

One of the charges of which appellant was convicted was possession with intent to deliver marijuana. This related solely to the 24.5 grams of marijuana discovered at his residence at the time of arrest, as stated in the Information related to that charge. Appellant was also convicted for simple possession of the same 24.5 grams of marijuana.

If no further facts are needed to prove an additional offense, it merges into the primary offense for sentencing purposes, and only one sentence may thereafter be imposed. Commonwealth v. Vazquez, 328 Pa.Super. 86, 476 A.2d 466 (1984). This rule has been applied to cases involving the possession of marijuana. Commonwealth v. Edwards, 320 Pa.Super. 522, 449 A.2d 38 (1982). In Edwards, this Court held that possession with intent to deliver clearly includes possession, so that they should be merged for sentencing purposes. Such is the situation in the present case; since the same marijuana is the basis for both charges, the simple possession offense must merge into the possession with intent to deliver conviction. It is within the power of this Court to vacate an improper sentence. Id. Accordingly, the sentence of fifteen to thirty days for possession of a small amount of marijuana is vacated.

We are unable to tell whether the trial court would have sentenced differently on the remaining convictions had it known we would invalidate the sentence on two of the four charges. Therefore, we vacate sentence on the remaining charges as well and remand for resentencing on those counts. See Commonwealth v. Rhodes, 332 Pa.Super. 273, 481 A.2d 610 (1984); Commonwealth v. Lezinsky, 264 Pa.Super. 476, 400 A.2d 184 (1979).

Judgment of sentence vacated. The conviction for delivery of marijuana at No. CR-81-294 is reversed and appellant is discharged on that count. Case remanded for resentencing on possession with intent to deliver and delivery of marijuana at Nos. CR-81-292 (Count One) and CR-81-293. At No. CR-81-292 (Count Two), possession of a small amount of marijuana, the conviction merges for sentencing purposes with No. CR-81-292 (Count One). So ordered. Jurisdiction is relinquished.


author: CIRILLO, Judge: HESTER, Judge,

text:
    489 A.2d 925
    COMMONWEALTH of Pennsylvania v. Joseph MILEWSKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1985.
    Filed March 15, 1985.

      Todd J. O’Malley, Scranton, for appellant.
    Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.
    Before McEWEN, CIRILLO and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal by appellant Joseph Milewski from the judgment of sentence entered by the Court of Common Pleas of Lackawanna County. Following a trial by jury, appellant was convicted of dealing in vehicles with removed or falsified numbers. Post-trial motions were denied, and Milewski was sentenced to pay the costs of prosecution and placed on probation for one year. We reverse.

Appellant raises three issues in the instant appeal. We need only address his claim regarding the sufficiency of the evidence because we find that the evidence was insufficient to sustain his conviction.

“In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt.” Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229 (1984).

So viewed, the record reveals that in early November of 1979, a new 1979 Buick automobile was stolen from the residence of Joseph Wroble. The Pennsylvania State Police conducted an investigation and determined that Auto Haus, Inc., a used car dealership, received an automobile that contained engine parts and the transmission from the Wroble automobile. The vehicle identification numbers on these parts had been altered.

The evidence presented by the Commonwealth showed that late in November of 1979, appellant negotiated with the president of Auto Haus concerning the sale of the automobile in question. Once they reached agreement, appellant indicated that someone would deliver to Auto Haus the title for the car, and a check should be made payable to that party.

Based upon this evidence, appellant was convicted of dealing in vehicles with removed or falsified numbers, 75 Pa.C.S. § 7103(b). Section 7103(b) provides:

(b) Knowledge of fraudulent intent. — A person who buys, receives, possesses, sells or disposes of a vehicle, engine or transmission with knowledge that an identification number has been removed or falsified with intent to conceal or misrepresent the identity thereof, is guilty of a felony of the third degree.

(Emphasis added). An essential element of this crime is knowledge. Commonwealth v. Grabowski, 306 Pa.Super. 483, 489-90, 452 A.2d 827, 831 (1982). While “guilty knowledge may be inferred where facts and evidence are such as to show that element of the crime,” Commonwealth v. Stevenson, 242 Pa.Super. 31, 33, 363 A.2d 1144, 1145 (1976) (allocatur denied), “mere possession is not sufficient to sustain a conviction____” Commonwealth v. White, 259 Pa.Super. 397, 399, 393 A.2d 886, 887 (1978). Moreover, the burden is upon the Commonwealth to prove that a defendant had knowledge of the removed or falsified numbers. Commonwealth v. Cecchini, 315 Pa.Super. 153, 461 A.2d 843 (1983); Commonwealth v. Unkrich, 142 Pa.Super. 591, 16 A.2d 737 (1940).

Our review of the record discloses no evidence, either direct or circumstantial, that would lead one to conclude that appellant had knowledge of the removed or falsified numbers. The Commonwealth places great emphasis upon the fact that Milewski represented himself as the owner of the automobile in the negotiations with Auto Haus, and that appellant’s business may have had machinery that could be used to alter a vehicle’s identification numbers. We fail to see how the element of knowledge could be inferred from this evidence. Furthermore, appellant’s temporary possession of the car in question did not give rise to a duty “to make a thorough inspection of it to ascertain the condition of a hidden serial number.” Commonwealth v. Unkrich, supra, 142 Pa.Superior Ct. at 598, 16 A.2d at 741.

Therefore, we hold that the Commonwealth failed to meet its burden of proving that the appellant had knowledge of the removed or falsified numbers. Consequently, the evidence was insufficient to prove appellant’s guilt beyond a reasonable doubt.

Judgment of sentence is vacated, and appellant is discharged.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent. The Commonwealth presented more than sufficient evidence to meet its burden of proof. There was evidence that appellant came to the President of Auto Haus, Inc. and negotiated with him concerning the sale of the automobile in question, a new 1979 Buick, and represented that the car was his and he wanted to sell it. It was appellant who delivered the car to the Auto Haus used car lot and told the President that he would send his man down with the title for the automobile. Appellant conducted all the negotiations for the sale of the car. The records of Auto Haus indicate the car was purchased from appellant. Appellant’s name appeared on the check representing payment for the car but not as payee. I would affirm on the able opinion of Judge Munley of the trial court.


author: TAMILIA, Judge:

text:
    489 A.2d 927
    Gary E. SCHULZENDORF v. The PITTSBURGH & LAKE ERIE RAILROAD COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 4, 1984.
    Filed March 15, 1985.

      Paul L. Hammer, Pittsburgh, for appellant.
    Richard A. Porach, Pittsburgh, for appellee.
    Before CIRILLO, TAMILIA and MONTGOMERY, JJ.
   TAMILIA, Judge:

The appeal before us is a lineal descendant of a suit filed by appellant in federal district court under the Federal Employer’s Liability Act (FELA), 45 U.S.C.A. § 51, et seq. The case was settled in 1982 and thereafter appellant instituted a second action in the Court of Common Pleas of Allegheny County alleging that the settlement amount had been based on fraudulent representations by appellee as to the existence of a lien against proceeds. Appellee’s preliminary objections challenging the jurisdiction of the state court were granted and the case dismissed. Appellant now brings this appeal, arguing that the settlement is a contract, separate and apart from the original cause of action, and is therefore amenable to attack in trespass for fraud in a different forum. We disagree.

FELA section 56 specifies that the jurisdiction of federal and state courts over suits brought under its provisions is concurrent. Appellant chose a federal forum for his action, and having once exercised his option he is bound by it. 20 Am.Jur. 2nd. Courts § 130 (1965).

It is a doctrine of law too long established to require citation of authorities, that where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, till reversed, is regarded as binding in every court; and that where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court.

Freeman v. Howe, 24 How. 450, 457, 16 L.Ed. 749, 751 (1861). Whitmer v. Whitmer, 243 Pa.Super. 462, 365 A.2d 1316 (1976) cert. denied 434 U.S. 822, 98 S.Ct. 67, 54 L.Ed.2d 79. The antiquity of this precept is unarguable, and its applicability immutable.

Appellant contends, however, that the validity of the settlement is not an issue germane to the prior proceeding as it involves a contract marred by fraud in the factum. This is a distinction without a difference, for regardless of the way in which the nature of a settlement is defined, its operation and practical effect is as the denouement of litigation, here reached under the federal court’s supervision and jurisdiction. Therefore, any aspersions appellant wishes to cast upon its legitimacy must be and can only be dealt with by the contemporary court of record. See 1 Standard Pennsylvania Practice 2d § 2:51 (1981). Although state courts may enforce a federal court judgment, a procedure which appellant emphatically declares he has not sought, the judgment may not be annulled, modified or otherwise reviewed by a state court. 21 C.J.S. Courts § 539 (1940). Therefore, as the trial court correctly determined, questions as to the resolution of the suit must be referred to the court in which jurisdiction was originally vested by appellant’s own choice. Get Set Organization v. Philadelphia Federation of Teachers Local # 3, 446 Pa. 174, 286 A.2d 633 (1972); Advanced Management Research, Inc. v. Emanuel, 439 Pa. 385, 266 A.2d 673 (1970); Melnick v. Binenstock, 318 Pa. 533, 179 A. 77 (1935).

Appeal dismissed.


author: WATKINS, Judge:

text:
    489 A.2d 929
    COMMONWEALTH of Pennsylvania v. Robert F. CULLEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 21, 1983.
    Filed March 15, 1985.

      Richard H. Knox, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   WATKINS, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, by the defendant-appellant, Robert F. Cullen, after his conviction in a jury trial of six counts of robbery and conspiracy. Post-verdict motions were denied and the defendant was sentenced to a total of thirty (30) to sixty (60) years imprisonment. Defendant’s original appeal to this Court was non-prossed and this nunc pro tunc appeal followed.

The defendant was arrested on July 25, 1975 and charged with the armed robberies of five supermarkets and one restaurant in Philadelphia as well as conspiracy for those crimes. The defendant was .tried with two co-defendants, John Adams and George Wallace. The evidence at trial established that between January 30, 1973 and June 21, 1974, the defendant and his co-defendants conspired to commit a series of robberies. In addition to the Philadelphia robberies, the defendant allegedly committed at least an additional fourteen robberies in the outlying counties of Pennsylvania and New Jersey. All of these robberies, however, were marked by a distinctive modus operandi.

On appeal, the defendant raises nine issues which we will discuss individually.

I. RULE 1100.

Appellant argues that the court erred in denying his motion to dismiss the charges in accordance with Pa.Rule of Criminal Procedures 1100 based upon two contentions: (1) Appellant was not brought to trial within 180 days of the issuance of the warrant for his arrest; and (2) The time period was not validly extended beyond the 180 day period.

With respect to appellant’s first contention, Pa.Rule of Criminal Procedure 1100 requires that a defendant arrested after June 30, 1974 be tried within 180 days from the date the complaint was filed. Where defendant is arrested pursuant to a warrant issued on the basis of a complaint, the complaint is deemed to be “filed” when it is presented to the court for the purpose of having the warrant issued. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). The record clearly indicates the criminal complaint on which process issued was presented on June 27, 1975 to Judge George Woods of the Municipal Court of Philadelphia. Appellant’s claim is without merit.

With respect to appellant’s second contention, Rule 1100 places the obligation on the Commonwealth to commenee trial no later than the prescribed time, unless excused upon showing of due diligence. Commonwealth v. Lamonna, 473 Pa. 248, 373 A.2d 1355 (1977); Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). Section (c) of Rule 1100 provides the Commonwealth with an adequate procedural method to protect its right to effectuate a timely prosecution by filing a timely request for an extension of the time for the commencement of trial, where good cause for such a request is present. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).

Defendant was a member of a group involved in an intricate scheme of criminality which was the trademark of the group which, in the interest of justice and judicial economy, dictated that the defendant should be tried with his co-conspirators. Commonwealth v. Hirsch, 225 Pa.Superior Ct. 494, 311 A.2d 679 (1973); Commonwealth v. Schwartz, 210 Pa.Superior Ct. 360, 233 A.2d 904 (1967). See Pa.R.Crim.Pro. 219. Defendant must have realized the need of a joint trial and never applied for a severance.

Due to significant defense delays resulting from the multiple defendants, the Commonwealth filed a petition to extend the original rule date of December 24, 1975. We hold that the first extension and all subsequent extensions were preceded by a timely request and granted for legally sufficient reasons by the court.

A petition for extending the date in which a trial must be commenced must be filed before the expiration date or any extension thereof. Pa.R.Crim.Pro. 1100(c); Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975); Commonwealth v. Taylor, 473 Pa. 400, 374 A.2d 1274 (1977). Each of the petitions filed in this case, which resulted in the granting of a new run date, was timely filed. The petition filed February 27, 1976, which resulted in the order extending the date to March 29, 1976, preceded the newly established date of February 29, 1976. The application of March 29, 1976 was also timely filed.

Defendant asserts that his failure to receive proper notice of the first extension hearing as required by Section (c) of Rule 1100 renders invalid all extension of time. Rule 1100(c) requires the presence of the appellant or his counsel at any hearing to extend the “run date”. A valid extension cannot be granted in the absence of the appellant or his counsel. Commonwealth v. Ray, 240 Pa.Superior Ct. 33, 360 A.2d 925 (1976); Commonwealth v. Patrick, 487 Pa. 15, 407 A.2d 382 (1979). Defendant’s counsel admits he was notified of the first extension hearing and served with a copy of the petition. Defendant’s failure to appear or request a continuance is deemed a consent to the extension. Commonwealth v. Taylor, 473 Pa. 400, 404-405, 374 A.2d 1274 (1977); Commonwealth v. Costigan, 272 Pa.Superior Ct. 520, 525, 416 A.2d 1018 (1979); Commonwealth v. Frank, 263 Pa.Superior Ct. 452, 398 A.2d 663 (1979). This is especially so where the sole contention is that the order was entered ex parte and he does not posit that he could have presented evidence which would have made for a different result. Commonwealth v. Taylor, supra. Appellant’s claim is without merit.

Appellant asserts the Commonwealth failed to establish due diligence in bringing defendant’s case to trial, which would justify the grant of its extension petitions. A timely application is properly granted when the trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Pa.R.Crim.Pro. 1100(c); Commonwealth v. Mayfield, supra; Commonwealth v. Gibson, 248 Pa.Superior Ct. 348, 375 A.2d 132 (1977); Commonwealth v. Jenkins, 248 Pa.Superior Ct. 300, 375 A.2d 107 (1977).

On each application for extension, there was sufficient evidence that, despite due diligence, the case could not be tried. Trial could not be held before December 24, 1975, the original run date, because defendant Adams and counsel for defendant Wallace were unavailable: the former in flight, and the latter undergoing surgery. These delays, while not directly chargeable to defendant under Pa.R.Crim.Pro. 1100(d), justified granting the Commonwealth’s first extension petition. Commonwealth v. Wharton, 250 Pa.Superior Ct. 25, 31, 378 A.2d 434 (1977); Commonwealth v. Jenkins, 248 Pa.Superior Ct. 300, 305, 375 A.2d 107 (1977).

When the original extended date proved too optimistic, the Commonwealth timely filed its second extension petition. As the lower court pointed out: “The condition necessitating the first extension still prevailed. Defendant Adams and counsel for Wallace had just returned to the judicial system; Adams on February 6, 1976, and counsel on February 2, 1976. A lot of time otherwise available for trial had been consumed awaiting the readiness of the defense, a justification for granting an additional extension to March 29, 1976. (Citing cases)”

Trial was then scheduled to commence on March 22, 1976. Trial could not commence that day due to defendant’s filing a Ross motion the same day to dismiss the indictment for delay in defendant’s arrest. The Ross motions was listed for disposition at the time of trial on March 29, 1976. For the purpose of the prompt trial rule, the case is deemed to have begun when the trial judge undertakes to hear any motion which had been reserved to be heard at time of trial. Commonwealth v. Robinson, 238 Pa.Superior Ct. 508, 362 A.2d 1005 (1976); Pa.R.Crim.Pro. 1100 (Comment).

When the court convened on March 29, 1976, the Commonwealth filed a petition for extension as a precautionary measure against the elapsing of the run date. The application for extension was timely filed and was properly granted based on the prevailing and controlling standards of inability to meet the trial date despite due diligence.

II. MOTION TO DISMISS FOR PRE-ARREST DELAY.

Defendant asserts the trial court improperly denied defendant’s motion to dismiss the indictments against defendant on the ground of pre-arrest delay. Defendant claims he was denied due process of law because police had probable cause to arrest him at the end of April, 1975, but did not secure an arrest warrant until June 27, 1975 (when the arrest warrant was issued) and did not arrest him until July 25, 1975.

Defendant must establish actual prejudice resulting from the delay to make a due process claim concrete and ripe for adjudication. Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978). Once defendant has shown actual prejudice, the court will inquire into the reason for the delay.

The defendants themselves caused the delay between the arrests and the criminal incidents. Their assertion that better police proficiency might have resulted in their earlier apprehension contradict their planned intentions of remaining anonymous and undiscovered. In the absence of showing that the police deliberately and unnecessarily delayed the arrest to the prejudice of the defendants, the delay between the criminal episode and the arrest has no significance. Commonwealth v. Bunter, 445 Pa. 413, 282 A.2d 705 (1971); Commonwealth v. DeRose, 225 Pa.Superior Ct. 8, 307 A.2d 425 (1973); Ross v. United States, 349 F.2d 210 (D.C.Cir.1965). Not only was there no deliberate “police” delay, but the evidence does not indicate that the defendants were prejudiced by the delay in any way. A mere allegation and assumption that delay dims memories is insufficient to establish delay upon which to base dismissal of an indictment.

Appellant asserts that he was prejudiced by the delay because he was unable to prepare a defense to the charges during the period of time from which he was told he was going to be arrested until two months later when he was arrested. A delay in the arrest of a defendant for legitimate police purposes does not result in a denial of the defendant’s right to due process of law, unless the delay prejudices the defendant’s ability to defend himself. Wilson v. United States, 409 F.2d 184 (9 Cir.1969). The record does not indicate that the delay prejudiced defendant’s ability to defend himself.

III. ADMITTING “MODUS OPERANDI” EVIDENCE.

Appellant argues that the trial judge by allowing the Commonwealth to present modus operandi evidence had abused his discretion and that because of this the appellant’s rights to a fair trial and due process of the law were abridged.

The appellant and his co-defendants had been charged with six counts of armed robbery and conspiracy to commit robbery in the Philadelphia area which occurred in 1973 with the exception of one which occurred in 1975. Appellant had not been identified as the perpetrator of any of these crimes, however, the planning and execution of the crimes was detailed by an informing witness, Sandra Cornish. Ms. Cornish was an accomplice both before and after each of the Philadelphia robberies. Appellant and his co-defendants were also indirectly identified by victims of these six robberies. Appellant concedes that given the testimony of Sandra Cornish, if believed by the jury, coupled with corroborating facts that were detailed by the victims of the robberies, there was sufficient evidence to convict the defendants during the trial of the six robbery charges. What the appellant objects to is the introduction of evidence of fourteen other robberies which had occurred outside the Philadelphia area in 1973 and 1974. Over objection of appellant’s counsel the trial judge permitted the Commonwealth to prove these robberies as modus operandi evidence; evidence which tended to prove a common scheme or plan on the part of the defendants which related to six crimes with which the defendants had been charged.

Concerning four of the fourteen robberies, there had been testimony by the victims which would have identified at least one of the three defendants who had been on trial. Appellant argues, however, that as to the remaining ten robberies which were proven during the trial, there was no valid identification testimony which added anything to the evidence the Commonwealth had already presented. Appellant claims that the prejudicial impact of allowing evidence of these robberies far outweighs its probative value.

Appellant, in challenging the exercise of discretion by the trial court bears a heavy burden. The standard which must be met is a stringent one. “The abuse of discretion is not merely an error in judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence on the record, discretion is abused.” Commonwealth v. Braithwaite, 253 Pa.Superior Ct. 447, 385 A.2d 423 (1978).

As a general rule, evidence of one crime is not admissible to prove the commission of another. Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975); Commonwealth v. Wilson, 444 Pa. 117, 281 A.2d 864 (1971). Reference to a defendant’s other criminal conduct is incurably prejudicial. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972); Commonwealth v. Williams, 230 Pa.Superior Ct. 72, 327 A.2d 367 (1974). However, where the ends of justice require it and the evidence is otherwise trustworthy and relevant, the Common Law has provided a necessary exception to this rule. Where evidence of other crimes has relevance to crimes being tried, where it tends to prove such elements as motive, intent, common scheme, plan or design embracing the commission of crimes so related to each other that proof of one tends to prove the others or where crimes are so clearly identical in character and method as to earmark them as the handiwork of the person being tried— evidence of other crimes is admissible for such limited purposes. Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973); Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975).

Because there had not been any direct identification of the appellant and his co-defendants, the Commonwealth’s evidence revolved primarily around the testimony of Sandra Cornish through her recollection of conversations with appellant and his co-defendants. However, her testimony would be carefully scrutinized because of her participation in the scheme.

The Commonwealth believed the need for corroboration was essential. The Commonwealth claimed that by introducing evidence of other robberies it sought to corroborate Ms. Cornish’s testimony. It also sought to show that the modus operandi was so similar that proof of one tended to prove the other, to establish identity of appellant and his co-defendants, prove the conspiracy, introduce physical evidence obtained in non-Philadelphia robberies which was also used in previous Philadelphia robberies and explain the time lapse between the six robberies.

Because there were no eye witnesses to the crimes charged, the Commonwealth could only prove a conspiracy and connect the robberies to the perpetrators by showing the web of circumstances manifested in their modus operandi, the modus operandi consisting of other crimes in circumstantial evidence relevant to prove the scheme, plan (conspiracy) and the identity of the perpetrators. Commonwealth v. Banks, supra; Commonwealth v. Lasch, supra. Criminal conspiracy can seldom, if ever, be proven except by circumstantial evidence — evidence from which the ultimate fact is to be inferred. Where the ultimate facts, the terms, the objectives, the scope of an unlawful agreement are to be inferentially drawn from other facts and circumstances — there is a need for greater latitude in admission of the basic evidence. Commonwealth v. Cohen, 203 Pa.Superior Ct. 34, 199 A.2d 139 (1964).

In the instant case, the challenged evidence was determined by the lower court to be relevant, probative and necessary to prove the identity of the perpetrators as well as the terms and objectives of their criminal scheme. In his discretion, the trial court judge determined that the proffered evidence came within the exception to the general rule.

As to the claim of the evidence’s prejudicial impact outweighing its probative value, the trial judge specifically instructed the jury that they were not to conclude from this evidence that the defendant was guilty of the crimes charged or predisposed to criminality. This served to dissipate any prejudice which inhered in the evidence.

There is no indication from the record that the trial judge had overridden or misapplied the law, or that this was a result of partiality, prejudice or ill will. The judge acted within his discretion, therefore, the appellant’s claim is without merit.

IV. MOTION TO SUPPRESS EVIDENCE OBTAINED BY PENNSYLVANIA STATE POLICE OFFICER REAP.

Appellant argues that the evidence obtained by Trooper Reap during an encounter with appellant on the Pennsylvania Turnpike should have been suppressed as the product of an unlawful stop.

There are two parts to appellant’s argument. (1) That Officer Reap did not have personal knowledge of all the facts constituting probable cause at the time of the stop thereby making it unlawful. (2) Since the encounter did not result in an arrest, the evidence obtained during the encounter should be suppressed.

In regard to appellant’s first contention, cases in the past have held that an arresting officer need not have personal knowledge of the facts which support probable cause for arrest. He may reasonably rely upon radio transmissions ordering an arrest so long as the officer issuing the order has reasonably trustworthy information sufficient to warrant a man of reasonable caution in believing that the suspect has committed or is committing an offense. Commonwealth v. Riley, 284 Pa.Superior Ct. 280, 425 A.2d 813 (1981); Commonwealth v. Wagner, 486 Pa. 548, 555, 406 A.2d 1026, 1030 (1979); Commonwealth v. Kenney, 449 Pa. 562, 567, 297 A.2d 794, 796 (1972).

Although Officer Reap did not have personal knowledge of facts constituting probable cause he relied on a bulletin when stopping the appellant. Therefore the appellant’s claim is without merit.

Having effectuated a proper stop, Officer Reap told appellant why he had been stopped and advised him of his Miranda rights. He then asked the appellant to identify himself and inquired into his activities during the time the crime was allegedly committed. He was correct in doing this. Commonwealth v. Browne, 221 Pa.Superior Ct. 368, 292 A.2d 487 (1972). At this time a turnpike toll ticket was in plain view on the front seat and appellant voluntarily divulged the location of seven twenty dollar bills. Once an officer has made a valid stop or arrest, he may seize any evidence which is in plain view. Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975); Commonwealth v. Harper, 233 Pa.Superior Ct. 294, 334 A.2d 761 (1975); Commonwealth v. Clelland, 227 Pa.Superior Ct. 384, 323 A.2d 60 (1974).

Although appellant had been released by Officer Reap after being detained for two and one half hours, the evidence he gathered during this time is admissible because it had been in plain view and had been obtained incident to a lawful stop.

V. ADMITTING THE IDENTIFICATION TESTIMONY OF LAMAR QUICKLE AND JUDITH DI PRETORE.

The appellant claims that the trial court erred in admitting the identification testimony of Mr. Quickie and Ms. DiPretore on the ground that it was the product of an unconstitutionally suggestive confrontation.

The identification testimony of Mr. Quickie and Ms. DiPretore related to a June 21, 1974 robbery of a supermarket in Delaware County. The police had arrived during the robbery and in the ensuing confusion appellant had lost his mask. It was at this time that Mr. Quickie and Ms. DiPretore had an opportunity to see the appellant. Subsequently the witnesses were shown a ten photo array but failed to identify the appellant in any of these photographs. During a luncheon recess on April 23, 1976, Mr. Quickie and Ms. DiPretore were brought into the courtroom by Detective O’Shea to speak to the prosecutor. Testimony indicated that the witnesses came without expectation that defendants would still be in the courtroom of that they would be able to identify any of the defendants. At the time the witnesses entered, appellant, his co-defendants and their attorneys were present in the front of the courtroom. The witnesses upon seeing appellant exclaimed “that’s the man”. It was a result of this confrontation that witnesses Quickie and DiPretore testified that they recognized the appellant as the person who had robbed the supermarket. Appellant claims that these circumstances for identification were improper and suggestive.

The lower court judge received testimony at a mid-trial suppression hearing concerning why the witnesses were present at that particular time and how the witnesses had identified the appellant. The trial judge had accepted the testimony of Detective O’Shea and the witnesses as true and determined that given the circumstances this was not an improper or suggestive viewing.

First it must be stated that it is not the task of the court to engage in de novo evaluation of testimony. Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981). The trial court after hearing testimony, determined that there was nothing in the encounter to suggest deliberate staging. It also determined that there was no impermissibly suggestive factor in the picture framed by the group of five or six men from which he was recognized and that the spontaneity of the recognition negated any suggestion that the identifications were the product of consultation and reflection of the two witnesses. This Court will not re-evaluate the testimony of these findings. Rather, accepting them as true, we will determine whether admitting this evidence was proper.

This Court has consistently held that where it has been determined that the confrontation between the accused and the accusor is uncontrived, any spontaneous identification is proper. Commonwealth v. White, 447 Pa. 331, 290 A.2d 246 (1972); Commonwealth v. Wilcox, 481 Pa. 284, 392 A.2d 1294 (1978). Therefore, the trial court did not err in admitting this identification testimony. Appellant’s contention is without merit.

VI. PROSECUTORIAL MISCONDUCT AND COMMENT BY WITNESS, DETECTIVE O’SHEA.

Appellant claims that the court should have granted a mistrial based on a remark made by the prosecutor in his opening statement and on a comment by Detective O’Shea that he was assigned to the major crimes squad.

During his opening statement the prosecutor had compared what he intended to prove in this case to the series of crimes committed by “the Boston Strangler”, “Jack the Ripper” and “The Kissing Bandit”. The trial court addressed both the timeliness of the objection and the prejudicial effect of these remarks. The court determined that assuming arguendo the timeliness of the objection the remarks were not so prejudicial as to be incurable. Moreover he specifically instructed the jury on the purpose of these remarks. The trial court had adequately addressed these issues and found appellant’s claim to be without merit. Upon review we find it also to be without merit.

As to Detective O’Shea’s reference that he was assigned to the Major Crimes Unit, the trial court had struck the reference and advised the jury to disregard it. The trial judge stated that even if it were prejudicial it was not such that it was incurable. Upon review of the record we agree that appellant’s claim is without merit.

VIII. PERMITTING THE COMMONWEALTH TO EXHIBIT A CHART THROUGHOUT THE COURSE OF THE TRIAL.

Appellant claims that the trial judge abused his discretion, to the prejudice of the appellant, by permitting a chart to be constantly on display throughout the trial and by permitting the Assistant District Attorney to announce each time he was placing a check on the chart or removing a label from it to uncover information which was referred thereon. Use of such a chart lies within the sound discretion of the trial judge. Commonwealth v. Ayala, 277 Pa.Superior 363, 419 A.2d 1187 (1980). A wide discretion is vested in the trial judge in permitting demonstrations or experiments to be made in the presence of the jury. Henry, PA. Evidence, VI. 1, § 424. Given the complexity of the series of crimes being presented by the prosecutor and the need for clarity in presenting it to jury we can find no abuse of discretion by the trial judge. Appellant’s claims is without merit.

IX. INSTRUCTIONS TO THE JURY CONCERNING THE TESTIMONY OF SANDRA CORNISH.

Appellant contends that the court erred in its charge to the jury on the caution with which they were to regard the testimony of Sandra Cornish, an alleged accomplice in the crimes. Appellant claims that the court erred in not using the words “corrupt” and “tainted” in describing Sandra Cornish’s testimony. The court below cites Commonwealth v. Vorhauer, 232 Pa.Superior Ct. 84, 331 A.2d 815 (1974), (there was no abuse of the court’s discretion by not employing the words “corrupt of polluted” or in not telling the jury why an accomplice charge was suspect), as directly applicable in this case. We agree with the determination and find appellant’s claim without merit.

Judgment of sentence affirmed.

CERCONE, J., concurs in the result.

      . The direct appeals of co-defendants Adams and Wallace were denied by this Court in per curiam opinions at Commonwealth v. Adams, 289 Pa.Superior Ct. 576, 429 A.2d 71 (1980) and Commonwealth v. Wallace, 257 Pa.Superior Ct. 620, 390 A.2d 299 (1978).

      . The evidence presented illustrated the common scheme in the perpetration of these crimes. In each of these robberies an automobile had been stolen and “hot wired”. The police received unfounded reports of crimes in progress at the same time. The description of the perpetrators was the same; one taller approximately five feet six inches and one was shorter approximately five feet four inches, both wore masks and gloves. The description of the gun was the same — it was a gun with a long barrel (six to eight inches) with a white handle. There were also common factors in how the robberies were committed. One perpetrator would wait near the counter and have the cash drawer emptied while the other scaled a partition to get to the manager's office and the safe. Then both perpetrators exited and got into a car waiting outside being driven by a third person. Subsequently, the same car was found abandoned, still running, in the vicinity of the robbery.