author:
POPOVICH, Judge.
      CIRILLO, Judge,

text:
    629 A.2d 150
    COMMONWEALTH of Pennsylvania, Appellee, v. Paul B. OWENS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1993.
    Filed Aug. 4, 1993.

      Paul B. Owens, appellant, pro se.
    Richard E. Guida, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before CIRILLO, POPOVICH and HESTER, JJ.
   POPOVICH, Judge.

This case involves an appeal from a judgment of sentence entered by the Dauphin County Court of Common Pleas on August 3, 1992. We affirm.

Appellant received citations for speeding, improper passing, following too closely and three parking tickets. Thereafter, appellant was found guilty of the above offenses at summary trials before district justices. Appellant subsequently filed timely appeals to the court of common pleas, and on July 22, 1992, a trial de novo was held. Following his trial, appellant was found guilty of speeding, improper passing, following too closely and three counts of overtime parking. Appellant was ordered to pay fines totalling $451.00. Appellant’s post-trial motions were denied on August 3, 1992, and this appeal followed.

Appellant raises several issues for our consideration regarding his parking and traffic violations. Appellant’s initial argument concerns appellant’s citation for speeding. On January 26,1992, appellant was stopped for speeding on the Pennsylvania Turnpike by State Trooper Long. Appellant received a speeding ticket for traveling 41 miles per hour over the speed limit. At trial, appellant and the Commonwealth stipulated that if the Commonwealth “were to call Trooper Long, the trooper would testify that he cited Mr. Owens for traveling 96 miles per hour in a 55 mile per hour zone and that further the trooper does have with him and would provide for the court the necessary documentation to show that the radar had been tested and calibrated within the required periods of time.” N.T., 7/22/92, p. 17. The parties also stipulated that appellant asked Trooper Long to view the radar reading at the time he was stopped, and the trooper refused his request. Appellant contends that according to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), appellant had a right to see the radar reading when the trooper stopped him for speeding. We disagree.

The United States Supreme Court held in Brady, that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment. Id. 373 U.S. at 85-87, 83 S.Ct. at 1196-97. The holding in Brady applies to evidence that is requested during or following discovery and is withheld by the prosecution. The case is not applicable to the present situation in which a person requests to view immediately a police officer’s radar.

Presently, appellant is asking us to rule that a police officer must justify stopping a person for speeding at the time of the stop. However, the law does not provide support for appellant’s argument. The Commonwealth is not required to allow a suspect to view the radar at the time he was stopped. Rather, the Commonwealth must prove beyond a reasonable doubt the following to sustain a conviction for speeding:

that an accused was driving in excess of the applicable speed limit, (2) that the speed timing device was approved by the Department of Transportation and, (3) that it had been tested for accuracy by an approved testing station.

Commonwealth v. Kittleberger, 420 Pa.Super. 104, 616 A.2d 1 (1988); 75 Pa.C.S.A. § 3362(a), 3368(a-e). Appellant does not dispute that the Commonwealth sustained its burden of proving these elements.

Appellant was fully informed of the charges against him. He received notice of the charges and had an opportunity to be heard. Parham v. Cortese, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Accordingly, we find that appellant was not denied a due process right when Trooper Long refused to allow appellant to see the radar.

Appellant’s second contention is that the evidence was insufficient to sustain appellant’s convictions for improper passing and following too closely. After viewing the evidence in the light most favorable to the Commonwealth as verdict winner, we find that the fact finder could find that appellant was guilty beyond a reasonable doubt of improper passing and following too closely. Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991).

A driver of a vehicle may not overtake and pass on the right of another vehicle unless the vehicle overtaken is making or about to make a left turn or the roadway is of sufficient width to allow two or more lines of vehicles moving lawfully in the direction being traveled by the overtaken vehicle. 75 Pa. C.S.A. § 3304(a). Pursuant to 75 Pa.C.S.A. § 3310, a driver of a vehicle may not follow another vehicle more closely than is reasonable and prudent.

At trial, a police officer testified that she witnessed appellant’s vehicle attempting to pass the vehicle in front of it on the right hand side. The police officer further testified that she observed appellant following another police car too closely. After reviewing the evidence and the applicable law, we find, contrary to appellant’s claim, the evidence was sufficient to sustain appellant’s convictions.

Appellant’s final claim involves three parking tickets received by appellant. Appellant received parking tickets for overtime parking on January 13, 1992, January 23, 1992 and February 3, 1992. The fine for each ticket was $6.00. Appellant elected to appeal each parking ticket. Following appellant’s trial, appellant was ordered to pay $36.50 for each parking violation. The $36.50 included a $15.00 fine and $21.50 for the district justice hearing, district justice administrative costs and Pennsylvania Department of Transportation costs. Appellant argues that his fines for the parking violations were increased because he elected to appeal the parking tickets, and appellant claims that the increased fines violate his due process rights. Appellant reasons that a person will be discouraged from challenging a parking ticket due to the increase of the fine.

A parking violation is a summary offense. Pa.R.Crim.P. No. 95, 42 Pa.C.S.A. A defendant who is convicted of a summary offense must pay costs in accordance with 42 Pa. C.S.A. § 1725.1. In regard to the fine for a parking violation, the “Comment” to Pa.R.Crim.P. No. 95, 42 Pa.C.S.A. provides the following:

Many political subdivisions use parking tickets and, therefore, many parking cases are disposed of without instituting a criminal proceeding under the procedures of these rules. A parking ticket is a device of convenience to the local government and the defendant. It is not a citation and does not constitute the instituting of a summary proceeding; no enforcement of penalty can be based upon a ticket alone.
The amount specified on a parking ticket cannot exceed the fine authorized for the parking violation alleged. There is no specific time which must be specified on the ticket, although of course it is advisable that such time be well within the applicable statute of limitations.
If the defendant pays the amount specified on the parking ticket within the time specified on the ticket, the case will be concluded without the institution of a criminal proceeding. If the defendant makes no response within the suggested time, or if the defendant indicates a desire to plead not guilty, and the subdivision desires to proceed with the case, a law enforcement officer must determine the identity of the vehicle owner from the Department of Transportation and then institute a criminal proceeding by filing a citation directly with the proper issuing authority under paragraph (a) of this rule (emphasis added).

In the present case, the fine plus costs was set at $36.50 for each parking violation. A person who has received a parking ticket for a parking violation is given the opportunity to avoid the institution of criminal proceedings and associated costs. The recipient of the ticket is also given the opportunity to pay a reduced fine. The reduced fine was $6.00 in this case.

Contrary to appellant’s argument, his fine for the parking violation was not increased. Rather, he was given the opportunity to pay the amount of a parking ticket that was less than the authorized fine for his parking violation. We, therefore, find that appellant’s due process rights were not violated simply because he chose not to pay the reduced fine of the $6.00 parking ticket.

Judgment of sentence affirmed.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting.

I most respectfully dissent. I believe that under the standard set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Owens had a right to see the radar reading at the time he was stopped, and that his due process rights were violated by the trooper’s refusal to allow him to view it. While I agree with the majority’s definition of the Brady standard, I cannot condone its narrow application to the facts of this case.

Pennsylvania courts have consistently followed the Brady standard in cases involving a failure to disclose exculpatory information. See Commonwealth v. Moose, 529 Pa. 218, 602 A.2d 1265 (1992) (prosecutor’s failure to identify a witness and disclose its agreement with him violated Brady); Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983) (district attorney suppressed exculpatory evidence relating to the chief witness); Commonwealth v. Santiago, 405 Pa.Super. 56, 591 A.2d 1095 (1991), appeal denied, 529 Pa. 633, 600 A.2d 953 (1991) (trial court owed duty to defendant to disclose testimony offered during interviews with a key witness which would exonerate him of the murder charge). As a matter of policy and fundamental fairness to the accused, the Brady standard should be construed to require disclosure of all exculpatory evidence in existence before, during, and after trial including that which exists prior to the discovery period and is specifically requested for viewing by the accused. Nowhere in Brady does the Supreme Court limit its protection to evidence requested during discovery that is withheld by the prosecution. In fact, in Brady, the non-disclosed evidence was first discovered after the trial, conviction and sentencing. Brady, 373 U.S. at 84, 83 S.Ct. at 1195. Likewise, Pennsylvania courts have not construed the Brady protection to be limited to the discovery period. Commonwealth v. Murphy, 493 Pa. 35, 425 A.2d 352 (1981). In Murphy, the Pennsylvania Supreme Court noted that Brady was not intended as a rule of discovery in criminal cases. Id. 425 A.2d at 357.

Finally, the majority incorrectly applies Pa.R.Crim.P. 305 in holding that the Commonwealth is not required to provide a defendant with inculpatory evidence until after the discovery process has begun. The instant matter is a summary case, not a court case. The official comments following Rule 305 state that the rule is intended to apply only to court cases. Id, The comments further state that “the constitutional guarantees mandated in Brady,____ and the refinements of the Brady standards embodied in subsequent judicial decisions, apply to all cases, including court eases and summary cases, and nothing to the contrary is intended.” Id. Thus, the Brady analysis is dispositive of this matter while Rule 305 is inapplicable.

Under Brady, I would find that Owens’s due process rights were violated when the trooper refused the appellant’s request to view the radar reading when he was stopped. Therefore, I respectfully dissent.

      . 75 Pa.C.S.A. § 3368(d) (relating to classification, approval, and testing of mechanical, electrical and electronic devices).

      . In Brady, exculpatory evidence was discovered following the trial, conviction and sentencing that had not been disclosed to the defense. The defense had requested the non-disclosed evidence prior to trial.

      . The dissent cites Commonwealth v. Murphy, 493 Pa. 35, 425 A.2d 352 (1981) in support of its position that Pennsylvania courts have not construed the Brady protection to be limited to the discovery period. However, we find that the holding of Murphy is not applicable to the present case. The court in Murphy does not discuss material requested prior to the discovery period. In Murphy, the defense made a request to the Commonwealth for all exculpatory material but the Commonwealth did not disclose certain exculpatory evidence until the fourth day of trial. Our Supreme Court ruled in Murphy that Brady did not mandate the disclosure of exculpatory material during the discovery process, and that if the belated disclosure of exculpatory evidence does not prejiidice the defense, no due process violation has occurred. Murphy, 425 A.2d at 357.

      . We note that to allow every individual who is stopped for speeding to enter the police car to view the radar would not be workable. Some experts recommend that the police officer never allow a traffic offender out of his car. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (Stevens, J., dissenting). This enables the traffic offender to avoid danger caused by passing traffic on the highway and protects the police officer.

      . The trial court correctly noted that when an individual successfully appeals a parking ticket, he or she pays nothing.


source: Caselaw Access Project

author:
CIRILLO, Judge:
      KELLY, Judge,

license: Public Domain

text:
    629 A.2d 154
    COMMONWEALTH of Pennsylvania, v. Robert L. HOLBROOK, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1993.
    Filed Aug. 9, 1993.

      Malcolm W. Berkowitz, Philadelphia, for appellant.
    Norman Gross, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, BECK and KELLY, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We affirm.

Appellant Robert L. Holbrook was arrested and charged with the murder of Elsie Olmeda and numerous other offenses in connection with her death. Holbrook waived trial and entered a plea of guilty to murder and conspiracy generally and a degree-of-guilt hearing was scheduled. Following the degree-of-guilt hearing, Holbrook was found guilty of first-degree murder, criminal conspiracy, robbery, burglary, and possessing an instrument of crime, generally. Holbrook received a sentence of life imprisonment on the murder conviction, concurrent terms of five to ten years for the conspiracy conviction, and ten to twenty years on the robbery conviction. The remaining sentences for the burglary and possession convictions were suspended. Holbrook now brings this direct appeal. We are asked to consider the following issues:

1. Did the trial court err in finding Holbrook guilty of first-degree murder at the degree-of-guilt hearing?
2. Did the trial court err in denying Holbrook’s motion to withdraw his guilty plea and/or further err in denying Holbrook’s motion for a new degree-of-guilt hearing based upon his trial counsel’s ineffectiveness?

A review of the record reveals that the evidence presented before the trial court was sufficient to sustain a finding of murder in the first degree. The test to be conducted in response to a claim that the evidence was insufficient to convict is well established:

The test for the sufficiency of the evidence in a criminal case is whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt. In making this determination, the reviewing court must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict.

Commonwealth v. Hughes, 521 Pa. 423, 430, 555 A.2d 1264, 1267 (1989) (citations omitted). The mens rea required for first-degree murder is specific intent to kill. Commonwealth v. Cain, 349 Pa.Super. 500, 503 A.2d 959 (1986). The specific intent to kill may be established solely from circumstantial evidence. Commonwealth v. Jones, 391 Pa.Super. 292, 570 A.2d 1338 (1990), alloc. denied, 528 Pa. 608, 596 A.2d 155 (1991). A conviction for conspiracy to commit a crime may be inferred from circumstances surrounding the alleged conspiratorial activity, and from the relationship, conduct and overt acts of the parties. Commonwealth v. Anderson, 381 Pa.Super. 1, 552 A.2d 1064 (1988), alloc. denied, 524 Pa. 616, 571 A.2d 379 (1989).

Viewing all the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, the record establishes the following: Holbrook, 16 years old at the time the incident occurred, had been selling drugs for co-conspirator George Padilla for about three months. Holbrook feared Padilla and was aware of Padilla’s reputation as a “hitman.” On the night of Ms. Olmeda’s murder, Holbrook met up with the other co-conspirators outside of Padilla’s home. Padilla was a relative of Olmeda’s. They agreed that they would rob Ms. Olmeda as her husband was incarcerated and she would be home alone with her children. The defendants drove together to Olmeda’s home and forced their way into the residence by pushing Olmeda onto the floor. Once inside, the co-conspirators dragged Olmeda up her hall stairs to the second floor. The co-conspirators immediately began to beat Olmeda and demanded that she give them money. While the co-conspirators were beating Olmeda on the second floor, Holbrook was told to stay downstairs and guard Olmeda’s sleeping child on the couch. Olmeda’s other child was locked in a closet. After finding the money, the co-conspirators set out to kill Olmeda to prevent her from identifying her perpetrators. The co-conspirators tried strangling and stabbing Olmeda. One of the co-conspirators came down to the first floor and got a knife from the kitchen. Later, Holbrook went to the kitchen and retrieved an extension cord and threw it up to the co-conspirators on the second floor. This cord was one of the objects used to kill Olmeda. The co-conspirators hogtied Olmeda’s hands and feet, tied her to the banister and then repeatedly strangled and stabbed her. During this murderous episode, Holbrook listened to the “noises” and maintained his position as guard over the child who awoke during the commotion.

Suddenly, all the noises stopped and the co-conspirators began to descend from the second floor. One co-conspirator had blood on his sleeve. Holbrook admits at that point he thought that Olmeda had been killed. Olmeda was found with a telephone cord wrapped around her neck, multiple stab wounds and the knife lodged in her throat. She was unable to be resuscitated and died on the way to the hospital. An autopsy revealed that she had died from strangulation and multiple stab wounds.

While Holbrook’s actions were significantly less horrendous than those of his cohorts, he nonetheless participated in the murder and his conduct rose to the level of first-degree murder. Holbrook admits that he knew they were going to Olmeda’s home to rob her and he participated in gaining entry into Olmeda’s house. He further aided in the conspiracy by watching over Olmeda’s sleeping child on the first floor couch. As this conspiracy took a dreadful turn to include the murder of Olmeda, Holbrook continued his duty as watchman, and retrieved' an extension cord for use by his cohorts during which time Olmeda was being excruciatingly beaten and was screaming out. Holbrook remained silent and took no action even after seeing Olmeda’s blood on another co-conspirator’s sleeve.

We find no significance in either the fact that Holbrook may have been ignorant/unaware of the intended use of the extension cord he supplied, or, that the reason for his cohort’s trip to the kitchen was to obtain a knife. The attack on Olmeda was brutal and quite prolonged and occurred inside of a small, two story rowhouse. This house was only thirty feet, nine inches long, and fifteen feet, nine inches wide. The trial court was presented with testimony that other persons could easily be heard inside of the house. The trial court’s determination, as factfinder, that Holbrook knew that the victim was being brutally murdered during the time that he maintained his duty as guard, and in obtaining one of his cohort’s weapons of choice, is sufficiently established in the record. When coupled with the fact that Holbrook listened to Olmeda’s prolonged screams and the contemporaneous commotion surrounding her death and his knowledge of Padilla’s reputation as a hitman, the record evidences that the Commonwealth established that Holbrook willingly participated in the conspiracy to commit robbery and remained loyal to his cohorts when this conspiracy transformed into murder. Accordingly, we find Holbrook’s first issue meritless and we affirm the trial court’s finding that Holbrook harbored a specific intent to kill Ms. Olmeda.

Holbrook next contends that the trial court erred in denying his motion to withdraw his guilty plea. Holbrook alleges his decision to waive trial and plead guilty was not knowing and intelligent, and instead, that he was coerced by his attorney to plead after his attorney promised him a conviction of only third-degree murder. Holbrook also contends that as a result of his trial counsel’s promise of a conviction of only third-degree murder he was wrongfully advised not to testify at the degree-of-guilt hearing. Intertwined in both allegations is Holbrook’s contention that his trial counsel was ineffective.

Our standard of review when evaluating a claim of ineffective assistance of counsel is well-settled, presumes that counsel is effective, and places on the defendant the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990); Commonwealth v. Gonzalez, 415 Pa.Super. 65, 71, 608 A.2d 528, 531 (1992). We are first required to determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991). If the claim is without merit, our inquiry ends because counsel will not be deemed ineffective for failing to pursue a meritless claim. Id. Even if the underlying claim has merit, the appellant still must establish that the course of action chosen by his counsel had no reasonable basis designed to effectuate the client’s interest and that the ineffectiveness prejudiced his right to a fair trial. Id; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

An attempt to withdraw a plea of guilty after sentencing will only be granted where the defendant is able to show that his plea was the result of manifest injustice. Pa. R.Crim.P. 321; Commonwealth v. Refile, 353 Pa.Super. 190, 509 A.2d 400 (1986), alloc. denied, 518 Pa. 655, 544 A.2d 1342 (1988). To establish manifest injustice, Holbrook must show that his plea was involuntary or was given without knowledge of the charge. Commonwealth v. Fenton, 388 Pa.Super. 538, 566 A.2d 260 (1989). A review of the record establishes the following. In response to Holbrook’s motion to withdraw his guilty plea, the trial court conducted a hearing during which time Holbrook’s counsel testified in great detail his efforts on Holbrook’s behalf. Trial counsel testified that anything discussed with Holbrook was first discussed with his family including decisions concerning a jury trial, the possibility of a guilty plea, and although there was no guarantee, the hope of a conviction of a lesser degree then first-degree murder. Further, before accepting Holbrook’s guilty plea, the trial court engaged in a lengthy colloquy with Holbrook as is required to ascertain if Holbrook’s plea was voluntarily and understandingly tendered. Pa.R.Crim.P. 319; Commonwealth v. Braxton, 410 Pa.Super. 391, 600 A.2d 198 (1991). A review of the colloquy establishes that Holbrook and his father fully understood that Holbrook could ultimately be found guilty of first-degree murder and receive a sentence of life imprisonment. The trial court found that trial counsel was thoroughly prepared for trial, that Holbrook and his family were advised of the progression of events, and that counsel was effective in representing Holbrook. This court is bound by the factual findings and credibility determinations made by the trial court. Commonwealth v. May, 485 Pa. 371, 402 A.2d 1008 (1979). Based on Holbrook’s trial counsel’s testimony, and the lengthy colloquy conducted by the trial court, the trial court found that Holbrook failed to show his plea was the result of manifest injustice. After reviewing the record, we conclude, as did the trial court, that Holbrook’s plea was knowing and voluntary and that Holbrook has failed to establish that it resulted from manifest injustice. Refile, supra. As a result, Holbrook’s claim for ineffectiveness must also fail. Pierce, supra.

Additionally, Holbrook alleges that he was wrongfully advised by his trial counsel not to testify at the degree-of-guilt hearing. Holbrook contends that such testimony would provided substantial evidence likely to reduce his conviction to third-degree murder or voluntary manslaughter. As such, Holbrook contends that his trial counsel was ineffective and further, that a new degree-of-guilt hearing should be held. We disagree. Prior to Holbrook’s arrest, he dictated a statement to his sister which detailed his version of the events that took place on the night of Olmeda’s murder. Holbrook, along with his trial counsel, went and surrendered to the police. Holbrook gave the police a statement which was essentially the same as the statement dictated earlier to his sister. The substance of these two statements represented the only version of the events ever related to trial counsel. Holbrook’s trial counsel testified during the hearing on Holbrook’s motion to withdraw his plea that since Holbrook could not add to anything more than what was offered in the statements, that it was trial counsel’s decision that it would not be prudent to subject Holbrook to cross-examination by the prosecutor. Holbrook never repudiated the contents of his statements and in fact had stated that he would not have added anything else. At the hearing, the trial court specifically questioned Holbrook as to those factors which determined Holbrook’s level of guilt. Holbrook’s claim that he be given a new degree-of-guilt hearing is meritless and as a result, Holbrook’s claim of ineffective assistance also fails. Pierce, supra.

Judgment of sentence affirmed.

KELLY, J., files a concurring and dissenting Opinion.

KELLY, Judge,

concurring and dissenting.

In my opinion, appellant committed no more than second degree murder. Hence, I dissent.

The trial court summarized the evidence which it found credible. • According to the trial court, appellant and cohorts planned to rob Elsie Olmeda, knowing that she would be home alone with her three children. Appellant and the others forced their way into the small house. The others dragged the victim upstairs, and bound her with a telephone wire. Meanwhile, Ms. Olmeda was resisting and yelling. Appellant was downstairs, ensuring that one of Ms. Olmeda’s young children did not make his way upstairs to help his mother or escape to call for help. While appellant was downstairs, a cohort walked passed him to obtain a knife from the kitchen. Also, the men who were upstairs yelled down for appellant to supply them with more cord, which could be found in a kitchen drawer. In response, appellant threw them an extension cord. When appellant was leaving with the group, he noticed that one confederate’s jacket was bloody.

The judge, as fact finder, concluded:

This brutal and prolonged attack against Ms. Olmeda occurred inside a small, two-story rowhouse, which was thirty feet, nine inches long, and fifteen feet, nine inches wide. (N.T. 3.78-3.81). There was testimony other persons were easily heard on other floors inside this two room per floor, airlite house. (N.T. [3.81]). The deceased was tied, strangled, and repeatedly stabbed at the top of the second floor stairs while the defendant was on'the first floor. Defendant was also aware of co-defendant George Padilla’s reputation as a “hitman” (N.T. 4.29) at the time of this incident.
It was simply inconceivable to this Court, as factfinder, that defendant did not know that the victim was being brutally murdered during the time that he acted in concert with his co-felons by providing an instrument for her death, the extension cord, and by guarding over her children.

Trial Court Opinion at 9.

No evidence established that the electric extension cord which appellant threw upstairs was used to strangle Ms. Olmeda. To the contrary, the extension cord was found wrapped around Ms. Olmeda’s torso and tied to the railing, while a telephone cord, which was ripped from an upstairs telephone, was found wrung around the victim’s throat. See N.T. February 27, 1991 at 3.53 (testimony of Officer Gage); id. at 3.58 (testimony of Officer Harmer). Moreover, there was no evidence to the effect that appellant was aware that a co-conspirator went to the kitchen for the purpose of obtaining a knife and that appellant saw a co-conspirator return upstairs with a knife. Even if the trial court could have inferred that a cohort passed by appellant to get the knife and brought it upstairs, the Commonwealth elicited no evidence that appellant was aware that the cohort who passed by was carrying a knife. Furthermore, that appellant noticed blood on Anthony Moss’ jacket when all of the co-defendants were leaving cannot establish an earlier intent to kill.

Viewing the evidence in the light most favorable to the Commonwealth, the Commonwealth proved that appellant and co-conspirators forcibly entered Ms. Olmeda’s house. Appellant was shown to have realized that they were to rob her. Therefore, he was certainly part of a conspiracy to commit robbery.

Next, appellant agreed to watch the victim’s oldest child, who was sleeping on the couch on the first floor. While he was watching the child, there was noise — banging and yelling — from the co-defendants and victim, who were upstairs. Appellant heard the noise. There was no indication that appellant saw what transpired on the second floor. Appellant noticed a cohort pass by, go into the kitchen, and return upstairs. Appellant was directed to toss up an extension cord which could be found in the kitchen drawer. Appellant went into the kitchen, saw an extension cord hanging out of a kitchen drawer, and walked to the bottom of the stairs, where he threw the cord to a co-defendant who was waiting on the stairs. Appellant continued to watch the child on the couch. When the group returned downstairs, and they all left, appellant noticed blood on Tony Moss’ sleeve.

The above evidence falls short of establishing that appellant harbored a specific intent to kill Elsie Olmeda. Before appellant and his co-defendants entered Ms. Olmeda’s house, no one evinced an intent to kill her. Therefore, any intent must have arisen while the robbers were inside the house.

There was no evidence showing that appellant knew that the extension cord would be used to strangle Ms. Olmeda. The fact that he supplied an extension cord to his co-defendants, who were upstairs with a victim who was yelling, did not establish that appellant willed the co-defendants to use the cord to wrap around the robbery victim’s neck. The object of appellant’s actions was to participate in a conspiracy to rob. He did not partake in a second conspiracy whose object was to kill, although the co-defendants upstairs did. The act of supplying the extension cord furthered the robbery by providing a means to restrain the victim and by facilitating access to the cache of money, but that act was not sufficient to establish appellant’s specific intent to kill. Appellant also watched a child during the robbery. The mere fact that there was noise upstairs did not render appellant knowledgeable of a scheme to murder. Therefore, his standing post downstairs indicated only his complicity in a robbery conspiracy. After a review of the evidence, therefore, I conclude and would hold that the Commonwealth adduced insufficient evidence to prove appellant guilty of first degree murder.

For the foregoing reasons, I concur in part and dissent in part.

      . I agree with the majority that appellant knowingly and voluntarily pleaded guilty and that counsel was not ineffective.

      . See Commonwealth v. Berkowitz, 415 Pa.Super. 505, 523-24 n. 6, 609 A.2d 1338, 1347 n. 6 (1992), petition for allocatur granted, 531 Pa. 650, 613 A.2d 556 (1992) (evidence after completion of act not relevant to intent to commit act).

      . Elsie Olmeda was found bound to a railing located between the bathroom and the children’s room. See N.T. February 26, 1991 at 2.68. While there was evidence that the bathroom could be seen from downstairs, there was no evidence that the hallway, where Ms. Olmeda was found, could be seen from downstairs. Indeed, by accepting the substance of appellant’s statement, the court found that appellant remained downstairs, watching the child on the sofa. See Trial Court Opinion at 8.

      . Appellant pleaded guilty to murder generally. During trial, he was shown to have participated in a robbery. Therefore, appellant is guilty of second degree murder. See 18 Pa.C.S.A. § 2502(b), (d) (felony murder). Because there is no triable issue as to whether appellant is guilty of second degree murder, I would remand to the trial court with directions to enter judgment of sentence in accordance with a conviction of second degree murder.


author:
      OLSZEWSKI, Judge:
      FORD ELLIOTT, Judge,

text:
    629 A.2d 161
    COMMONWEALTH of Pennsylvania v. Cheri A. TINDELL, Appellant.
    Superior Court of Pennsylvania.
    Argued May 12, 1993.
    Filed Aug. 9, 1993.

      Charles M. Schwartz, Pittsburgh, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com. appellee.
    Before McEWEN, OLSZEWSKI and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

Cheri Tindell [“Tindell”] appeals from the judgment of sentence entered July 15, 1992, in the Court of Common Pleas of Allegheny County. On May 19, 1990, Tindell was charged with one count of possession of a controlled substance and one count of possession with intent to deliver. The charges stemmed from the discovery of cocaine on Tindell’s person while travelling through Greater Pittsburgh International Airport. Tindell’s counsel filed an omnibus pre-trial motion on October 7, 1991, arguing that police lacked reasonable suspicion to conduct an investigatory stop or probable cause to make a warrantless arrest, and that the drugs seized should be suppressed. The court denied the motion. On January 16, 1992, after a hearing, Tindell waived her right to a jury trial. The case was submitted to the court on stipulations and the evidence presented at the suppression hearing of October 7, 1991. The court found Tindell guilty of possession and possession with intent to deliver.

Tindell filed post-verdict motions and a motion for a new trial on January 27,1992. The motions were denied on March 31, 1992. On July 15, 1992, the court sentenced Tindell to four-to-eight years imprisonment and a $25,000.00 fine. This appeal followed. In order to fully understand the nature of Tindell’s arguments, it is necessary to review the factual history of this case.

On May 18, 1990, at approximately 10:30 p.m., two county police officers assigned to the Drug Interdiction Unit at Greater Pittsburgh International Airport saw Tindell deplaning from a flight originating from LaGuardia Airport in New York City. In their attempt to ferret out drug couriers, the officers were trained to look for certain characteristics which differentiated the average airline passenger from individuals carrying drugs. The officers testified that they noticed Tin-dell particularly because she was wearing an oversized shirt and numerous items of gold jewelry. After she exited the plane, Tindell walked slowly through the airport, as if she were looking for someone. She did not have any baggage to claim, but carried a nylon bag, a plastic bag, and a purse. She approached a public telephone, but instead of making a phone call shouted “Joe” to a man walking nearby. The two met and began walking together toward the exit doors, where they paused to talk. The officers approached Tindell and “Joe,” and asked her if she would mind speaking with them. “Joe” walked off. The officers informed Tindell that she was not obligated to speak to them. Nonetheless, she agreed to speak with them.

The officers explained that they were narcotics officers and reiterated that she was not obligated to speak with them. Thereafter, the officers learned that Tindell was travelling on a one-way ticket from New York City which was paid for in cash under the name Singletary. Tindell stated her name and explained that her aunt purchased the ticket for her and that her aunt’s name was Singletary. Tindell produced photo identification which bore her name. One of the officers testified that at that point he recognized Tindell’s name from an $800.00 money order receipt which was found on Orín Clay-pool, a drug suspect, in July 1989. The money order had been sent to New York. The suspect was from New Kensington, Westmoreland County, PA. The officer had spoken with a Westmoreland County narcotics officer who told him that Cheri Tindell was the sister of known drug dealer Jack Tindell, and that she often transported drugs for her brother from New York. S.T., 10/7/91 at 21-22.

One of the officers asked Tindell whether she would consent to a search of the bags she was carrying. She consented. The search produced no contraband. The officer then contacted the police station and requested a female officer to search Tindell’s person. As they were waiting for the female officer, the police asked Tindell if she knew Jack Tindell. She identified him as her brother. She denied knowing Orín Claypool. Officer Llewellyn, a female officer, arrived. The officers advised Tindell that she was free to refuse the pat down search of her person. She did not refuse. Officer Llewellyn and Tindell moved into a more secluded area for the search. Before the officer searched Tindell, Tindell unzipped her jeans and produced a package wrapped with electrical tape. Officer Llewellyn gave the package to one of the narcotics officers, who asked Tindell what it was. Tindell replied that it was cocaine and was placed under arrest.

On this appeal, Tindell argues that the officers lacked reasonable suspicion to stop her or probable cause to make a warrantless arrest, and that suppression of the evidence was required. In reviewing the denial of a motion to suppress evidence, we must first determine:

whether the factual findings are supported by the record. In making this determination, we must consider only the evidence of the defense that remains uncontradicted when fairly read in the context of the record as a whole. When the evidence supports the factual findings, we are bound by such findings, we may reverse only if the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Medley, 531 Pa. 279, 284, 612 A.2d 430, 432 (1992); McElrath v. Commonwealth, 405 Pa.Super. 431, 435-437, 592 A.2d 740, 742 (1991).

On an appeal from a motion to suppress, we only review whether the record supports the trial court’s factual findings and whether the trial court’s legal conclusions drawn from the facts are in error. Commonwealth v. Merkt, 411 Pa.Super. 127, 600 A.2d 1297 (1992). In this case, we find no such error.

The trial court found that the police officers involved in Tindell’s arrest were specially trained for airport drug interdiction and had two and one-half years experience at their posts. In addition, the trial court noted that these drug interdiction officers were trained to look for certain mannerisms, such as dress, amount of and/or lack of baggage, and places of origination, particularly drug “source cities” such as Miami, New York City, Los Angeles, Detroit and Houston. These assertions are supported by the record.

The officers involved in Tindell’s arrest testified that they were trained to look for possible drug suspects deplaning from flights from drug “source cities.” N.T., 10/7/91 at 6. Officer Olearchick testified that the loose clothing worn by Tindell as she deplaned was characteristic of people attempting to conceal drugs on their person. Id. at 8. In addition, Officer Olearchick testified that Tindell’s casual clothing and contrasting abundant gold jewelry, as well as her lack of baggage were consistent with the behavior of people carrying drugs. Id. After police stopped Tindell to question her, at which time she was advised that she was not required to speak with them, the officers learned that Tindell was travelling under an assumed name. These factors support the reasonableness of the officers’ suspicion to justify an investigative stop. United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (in evaluating the reasonableness of a stop, courts must look to the totality of the circumstances). In addition, the United States Supreme Court has held that where an airline passenger utilizes an assumed name, is casually dressed, pays cash for a one-way ticket, and does not check baggage, police officers trained in drug interdiction have sufficient grounds upon which to reasonably suspect that a person may be carrying drugs. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

Contrary to Tindell’s argument, she was not “seized” for purposes of the Fourth Amendment.

A police encounter with a suspect may properly be characterized as a mere encounter, an investigative detention, a custodial detention, or a formal arrest. A mere encounter (or request for information) need not be supported by any level of suspicion, but it carries no official compulsion to stop or to respond ... An investigative detention must be supported by reasonable suspicion; it subjects the suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest ... A custodial detention must be supported by probable cause; it is deemed to arise when the conditions and/or duration of an investigating detention become so coercive as to be the functional equivalent of arrest ... Formal arrest requires probable cause, and needs no further definition.

Commonwealth v. Douglass, 372 Pa.Super. 227, 238-239, 539 A.2d 412, 417-418 (1988) (citations omitted). There is no constitutional prohibition against a police officer questioning an individual in a public place. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Interest of Jermaine, 399 Pa.Super. 503, 582 A.2d 1058 (1990). A seizure of a person sufficient to trigger Fourth Amendment protections occurs only where, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave. Id.

Tindell’s conversation regarding her name and plane ticket can be characterized as a mere encounter. Throughout the encounter, Tindell was advised of her right to refuse to talk to the officers. N.T., 10/7/91 at 29, 71, 72, 74, 75. After further discussion and production of identification, the officers recognized Tindell’s name in connection with another drug arrest. This connection had been investigated and corroborated by police detectives at the time of Orín ClaypooFs arrest. At this point, reasonable suspicion that criminal activity was afoot was justifiable, and supported an investigative detention. Nevertheless, Tindell was not seized. She was apprised of her right to refuse a pat down search, but she consented. Id. Tindell voluntarily produced the cocaine she was carrying. There was no evidence that the officers retained her identification documents, blocked her path to exit, threatened her, demanded that she do anything, or touched her. Only when police, through a showing of authority or assertion of physical force, have somehow restrained the liberty of an individual may we conclude that a seizure has occurred. Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). Accordingly, the encounter that occurred in this case was not a seizure and Fourth Amendment guarantees were not implicated. See U.S. v. Mendenhall, supra; INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Interest of Jermaine, supra; Commonwealth v. Lidge, 399 Pa.Super. 360, 582 A.2d 383 (1990).

The order of the trial court denying TindelFs motion to suppress is affirmed. Judgment of sentence affirmed.

FORD ELLIOTT, J., filed a concurring opinion.

FORD ELLIOTT, Judge,

concurring:

While I agree with the result reached by the majority, that the evidence against appellant should not be suppressed, I most respectfully disagree with the route utilized by my colleagues to arrive at that result.

Because I am bound by prior decisions of this court and the United States Supreme Court, I am required to accept that the so-called “drug courier profile” vests law enforcement officers with the requisite reasonable suspicion that criminal activity is afoot to justify stopping persons in public airports and posing questions to them. United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Commonwealth v. Lidge, 399 Pa.Super. 360, 582 A.2d 383 (1990), appeal denied, 527 Pa. 598, 589 A.2d 689 (1991) ; In the Interest of Jermaine, 399 Pa.Super. 503, 582 A.2d 1058 (1990), appeal denied, 530 Pa. 643, 607 A.2d 253 (1992).

I agree with the majority that, assuming the validity of the drug courier profile, the police were acting lawfully when they stopped appellant and asked her questions. Characterizing the initial “stop” as a mere encounter does not change the fact that by utilizing the drug courier profile the police also had the reasonable suspicion required for an investigatory detention. See Sokolow, supra; Royer, supra and Mendenhall, supra. However, where I must part from the majority, is in its determination that at the point where the “mere encounter” blossomed into an “investigatory detention,” still no “seizure” had occurred within the meaning of the Fourth Amendment.

I completely agree that when the police recognized appellant’s name from a prior drug investigation wherein she had been implicated as a possible drug courier, they not only had the requisite reasonable suspicion for continued investigatory detention, but they also had probable cause to obtain a search warrant for her person. Cf. Commonwealth v. Martin, — Pa. -, 626 A.2d 556 (1993) (search of satchel involved search of “person” and probable cause was necessary for canine sniff of satchel). The police testified to as much at the suppression hearing:

BY MR. FITZSIMMONS:
Q. Let me ask you this, sir. Did you ever communicate to Ms. Tindell anything about a search warrant or anything about that, sir?
A. I believe after Officer Llewellyn got there we did mention it. It was in the report.
Q. What exactly did you tell her with respect to that, sir?
A. I had stated that we, myself and Detective Zilch, believed that we had enough information, had enough probable cause to attempt to get a search warrant, and as I said, you know, she could refuse the pat down, she was free to refuse the pat down, but if she refused the pat down that we believed we had enough and we would attempt to get the search warrant for her person.
Q. That’s something that you communicated to her?
A. That’s something I communicated, yes, sir.

(Notes of testimony, 10/7/91 at 30.)

Clearly, appellant was not free to leave, and this was communicated to appellant. If she was not free to leave, then she was “seized” for constitutional purposes. In the context of the events of this case, the police officers informing appellant that she was not required to submit to a pat down search, did not mean that she wouldn’t be searched; but rather, that if she did not consent they would get a warrant. Obviously, under the circumstances, appellant was not free to leave. Therefore, our analysis of the legality of the police officers’ activities must be within the stricture of the Fourth Amendment.

However, while I disagree with the majority on the seizure issue, I agree with them that appellant voluntarily relinquished the drugs on her person. Under the Fourth Amendment, the consensual relinquishment of the drugs by appellant must be viewed within the context of the detention. Here it is unquestionable that under the totality of the circumstances the detention of appellant was legal; and therefore, I would find no violation of appellant’s Fourth Amendment rights when she retrieved the drugs from her own person where the alternative was for the police to secure a warrant.

      . However, I must in candor agree with this court’s statement in Commonwealth v. Daniels, 410 Pa.Super. 275, 279 n. 1, 599 A.2d 988, 990 n. 1 (1992), appeal denied, 531 Pa. 645, 612 A.2d 983 (1992), cert. denied sub nom., Pa. v. Daniels, - U.S. -, 113 S.Ct. 1361, 122 L.Ed.2d 740 (1993), at footnote one which calls into question the validity of the profile:
      The drug courier profile is not a ‘national profile.' Profiles vary from city to city, airport to airport and also depending on which law enforcement agency is using them. The profile is subject to racial abuse and gender stereotyping, where the fact that a person is an African-American, Columbian, or Hispanic has appeared as a profile characteristic, as has the fact that the person was the only woman on an airplane carrying business travelers. Commonwealth v. Lidge, 399 Pa.Super. 360, 582 A.2d 383 (1990). A breakdown of profile traits listed in the reported decisions reveals that it encompasses such contradictory characteristics as deplaning first and deplaning last, paying with small bills and paying with large bills. It also encompasses an extraordinary amount of innocent behavior such that the average airline traveler would be hard-pressed to not display at sometime during a trip. Furthermore, it is not clear whether the display of one or two characteristics is sufficient to fit the profile or whether if some characteristics carry greater weight than other characteristics such that the display of one of these weightier characteristics may trigger an airport stop. Note, the Drug Courier Profile

        and Airport Stops; Reasonable Intrusions or Suspicionless Seizures. 12 Nova.L.Rev. 273, 288-289.

        Id.

      . I am constrained to recognize the initial questioning by the police as a mere encounter, based on the recent rulings of this court and the United States Supreme Court. However, I find more persuasive the analysis presented by Judge Popovich in dissent in Jermaine. The dissent reasoned:
      I am convinced that under the foregoing facts, a reasonable person would believe she was not free to leave. To hold otherwise would be to perpetuate the myth that a reasonable person, when confronted by police officers, actually believes she has the option of declining to listen to the officers and leaving without suffering further consequences. Although constrained to follow the judgment of the Supreme Court regarding what a reasonable person believes when confronted by a law enforcement officer, numerous Circuits of the United States Court of Appeal have recognized the artificiality of the Supreme Court’s test. See United States v. Thame, 846 F.2d 200, 202 (3rd Cir.1988), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 333 (1988) ('Although we have our doubts whether a reasonable person who is greeted by federal agents and asked for identification feels free to simply ignore the agents____’); United States v. Notorianni, 729 F.2d 520, 522 (7th Cir.1984) (‘Maybe this is a wrong guess about what the average person feels in this situation____’); United States v. Cordell, 723 F.2d 1283, 1286 (7th Cir.1983), cert. denied, 465 U.S. 1029, 104 S.Ct. 1291, 79 L.Ed.2d 693 (1984) (Swygert, J. concurring) (I believe that as a factual psychological matter people who are stopped for questioning of this kind by police officers ... generally do not feel "free to leave”____'); see also Note, The Drug Courier Profile and Airport Stops: Reasonable Intrusions of Suspicionless Seizures?, 12 Nova L.Rev. 273, 284 (1987) (lower courts recognize ‘the artificiality of the test’)____

        Jermaine, 399 Pa.Super. at 517-518, 582 A.2d at 1065.
      Further, I believe it strains the imagination to say that a police request to search one’s bags, purse or person can be a part of an inoffensive and unintrusive "mere” encounter. To carry forward such logic would be to convert a weapons pat down, otherwise defined by Fourth Amendment case law as a Terry stop, into a mere encounter so long as the police are polite about it and gentle in where they place their hands. Rather, I believe the focus must center on the nature of the request being made by the police and not on the alleged consent. The validity of any consent to search must be determined within the context of the right of the police to make the request in the first instance. Compare Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013 (1990), aff'd sub nom., Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992) (otherwise valid actual consent to a blood test rendered invalid because police lacked probable cause to make the request).


author: CIRILLO, Judge: WIEAND, Judge,

text:
    629 A.2d 166
    COMMONWEALTH of Pennsylvania, v. George MacARTHUR, Appellant.
    Superior Court of Pennsylvania.
    Argued May 20, 1993.
    Filed Aug. 9, 1993.

      Stanton M. Lacks, Bensalem, for appellant.
    Norman Gross, Asst. Dist. Atty., Philadelphia, for Comm., appellee.
    Before WIEAND, CIRILLO and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We reverse.

Following a bench trial before the Honorable Lisa A. Richette, Appellant George MacArthur was convicted of third-degree murder. MacArthur was acquitted of both involuntary manslaughter and voluntary manslaughter. Post-trial motions were filed, heard and denied. MacArthur was sentenced to imprisonment for a period of not less than three (3) years nor more than six (6) years. The court denied bail pending appeal and newly retained counsel timely filed this appeal. MacArthur raises the following issues:

1. Whether the Commonwealth failed to prove MacArthur guilty of murder in the third degree beyond a reasonable doubt?
2. Whether the verdict of third degree murder was against the weight of the evidence?
3. Whether the trial court’s demonstrated pre-disposition in favor of the Commonwealth’s case denied MacArthur a fair trial and due process.
4. Whether the trial court gave insufficient consideration to the testimony of sixteen character witnesses whose testimony in and of itself was sufficient to raise reasonable doubt as to MacArthur’s guilt of third degree murder?
5. Whether trial counsel rendered ineffective assistance in not presenting available medical evidence for the defense which would have precluded a verdict of third degree murder?

When reviewing a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, and granting the Commonwealth all reasonable inferences deducible therefrom, the evidence is sufficient to establish all the elements of the offenses beyond a reasonable doubt. Commonwealth v. Bricker, 525 Pa. 362, 581 A.2d 147 (1990).

Third-degree murder is defined in the Crimes Code as “all other kinds of murder” other than first degree murder or second degree murder. 18 Pa.C.S. § 2502(c). The elements of third-degree murder, as developed by case law, are a killing done with legal malice. Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979). Malice, express or implied, is an essential element of murder, Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773 (1970), and is the distinguishing factor between murder and the lesser degrees of homicide. Commonwealth v. Culmer, 463 Pa. 189, 344 A.2d 487 (1975).

The traditional definition of malice was set forth in Commonwealth v. Drum, 58 Pa. 9 (1868):

Malice is a legal term, implying much more. It comprehends not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, in its legal sense, prevailed.

Id. at 15. See also Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978); Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977); Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975).

In Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445 (1946), the Pennsylvania Supreme Court clarified the concept of malice:

When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind of social duty” which proved that there was at that time in him “the state or frame of mind termed malice.”

Id. at 183, 47 A.2d at 447 (quoting Commonwealth v. Drum, supra.).

In the instant case, the trial court determined that the evidence presented established implied malice. The question we must decide is whether, after reviewing the record in the light most favorable to the Commonwealth and granting all reasonable inferences in favor of the Commonwealth, a malicious killing was established.

The facts are as follows: On the evening of December 12, 1991, at approximately 8:15 p.m., MacArthur, who was 49 years old and walked with a cane due to a permanent foot injury, was returning to his house after walking his dog. The decedent, Frederick Phelan, who was 54 years old and physically larger than MacArthur, confronted MacArthur as he returned home from walking the dog. The two men were neighbors who had had several verbal exchanges in the past over minor matters without physical confrontation.

On the evening in question, Phelan was apparently angry because MacArthur’s dog had urinated on his lawn. A physical confrontation ensued and the two men tangled on Phelan’s porch. MacArthur pushed the bigger man away. Phelan lost his balance, somersaulted backwards over a railing, fell down five steps and landed on the back of his neck.

An emergency medical unit transported Phelan to Northeastern Hospital where he was pronounced dead at 10:00 a.m. on December 13,1991. The cause of death was head and neck injuries, consistent with the victim’s fall.

The narrow issue presented by this case is whether proof of MacArthur’s single push causing Phelan to fall and suffer fatal injuries was sufficient to support a finding of malice, an element of the crime of third-degree murder.

Malice may not be inferred simply from the fact that a person “performed a certain act and that act brought about the death of another.” Commonwealth v. Reilly, 519 Pa. 550, 549 A.2d 503 (1988). The case law is clear that a single blow, without a weapon, is, ordinarily, not sufficient to establish malice. Commonwealth v. Moore, 488 Pa. 361, 412 A.2d 549 (1980); Commonwealth v. Buzara, 365 Pa. 511, 76 A.2d 394 (1950); Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125 (1950). Whether malice may be inferred where only fists are used must depend on the particular circumstances of the case, such as the assailant’s size, the manner in which the fists are used, the ferocity and duration of the attack, and provocation, if any. Moore, supra.

In Commonwealth v. Stehley, 350 Pa.Super. 311, 504 A.2d 854 (1986), this court found the defendant was not guilty of murder but guilty of involuntary manslaughter where he shoved a sixty-two year old man over a porch railing so that he hit the ground head first four feet below and died. In the recent case of Commonwealth v. Thomas, 527 Pa. 511, 594 A.2d 300 (1991), the Pennsylvania Supreme Court held that proof of defendant’s single punch to victim’s face was insufficient to support finding of malice required for third-degree murder conviction, even though victim’s chronically stiff neck which made it difficult for him to turn his head was readily apparent and had been a topic of conversation at gathering where defendant was present, the assault was unexpected, the punch was delivered from victim’s “blind side,” and the victim was intoxicated.

In the instant case, the injury was the tragic but improbable result of a single push. As in Stehley and Thomas, there is nothing in the record here which would support an inference of malice leading to a verdict of murder in the third degree. Cf. Dorazio, 365 Pa. at 299-300, 74 A.2d at 129 (“Ordinarily where an assault is made with bare fists only, without a deadly weapon, and death results there would only be manslaughter____ [Wjhere the assault is not committed with a deadly weapon, the intent must be clearly felonious, or the death will subject [the defendant] only the charge of manslaughter.”) The uncontroverted evidence simply does not warrant the inference of legal malice which was justified in Moore, Buzara and Dorazio, supra, by brutal prolonged, ferocious assaults carried out by larger, more powerful assailants.

We conclude, therefore, that the Commonwealth’s evidence was insufficient to prove malice. Consequently, the evidence was insufficient to prove beyond a reasonable doubt that MacArthur was guilty of murder in the third degree. Com monwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981); Commonwealth v. Pitts, supra.; Commonwealth v. Commander, supra.

Accordingly, we reverse the judgment of sentence.

WIEAND, J., files a concurring and dissenting Opinion.

WIEAND, Judge,

concurring and dissenting:

I concur in the majority’s holding that the evidence was insufficient to show a malicious killing. The trial court’s finding that appellant was guilty of murder of the third degree, therefore, cannot stand. Because involuntary manslaughter is a lesser included offense of murder, see: Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977), however, and because the trial court’s findings indicate that the degree of homicide in this case was involuntary manslaughter, I would reduce appellant’s offense to involuntary manslaughter and remand for resentencing.

This would not be contrary to principles of double jeopardy. Both the evidence and the trial court’s findings make it eminently clear that appellant was guilty of a criminal homicide. The trial court determined that appellant was guilty of murder of the third degree and not guilty of involuntary manslaughter. Because involuntary manslaughter is merely a less culpable degree of homicide than murder of the third degree, the trial court’s finding of murder in the third degree was not equivalent to an acquittal of involuntary manslaughter. It was merely a finding that the degree of defendant’s culpability was greater than that required by the offense of involuntary manslaughter.

The trial court’s finding was incorrect. A majority of this Court has determined (and I agree) that the evidence was insufficient to support a finding of murder of the third degree. The evidence upon which the trial court based its verdict demonstrated not a killing with malice but a killing which was a direct result of reckless or grossly negligent conduct. See: 18 Pa.C.S. § 2504(a). Therefore, a reviewing court, without violating principles of double jeopardy, can reduce appellant’s degree of guilt from murder of the third degree to involuntary manslaughter.

      . A defendant is acquitted when the ruling of the judge represents a resolution in the defendant’s favor, correct or not, of some or all of the factual elements of the offense charged. Contrary to the view of our respected colleague, reducing the degree of homicide from third-degree murder to involuntary manslaughter circumvents the principles of double jeopardy, in particular the plea of autrefoi acquit. See Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); See also Commonwealth v. Goldhammer, 507 Pa. 236, 247-48, n. 4, 489 A.2d 1307, 1313, n. 4 (1985) (double jeopardy protection afforded by the United States Constitution has been interpreted as coextensive with the protection afforded by Article I, Section 10 of the Pennsylvania Constitution), reversed on other grounds, Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985); Commonwealth v. Labette, 397 Pa.Super. 179, 185 n. 1, 579 A.2d 1315, 1319 n. 1 (1990).

      . Third-degree murder is a felony of the first degree. 18 Pa.C.S. § 2502(c). A person convicted of a felony of the first degree may be sentenced to imprisonment for a term which shall be fixed by the court at not more than 20 years. 18 Pa.C.S. § 1103.


author: PER CURIAM:

text:
    629 A.2d 170
    Deanna BRANCH, Appellee, v. Michael JACKSON, Appellant. Deanna BRANCH, Appellant, v. Michael JACKSON, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1993.
    Filed Aug. 12, 1993.

      Mark J. Goldberg, Pittsburgh, for Michael Jackson.
    J. Richard Narvin, Pittsburgh, for Deanna Branch.
    Before ROWLEY, President Judge, and JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

These cross appeals are from an order directing Michael Jackson (“Father”) to pay $2,000.00 per month for child support and $3,000.00 per month into a trust fund for the parties’ minor child. For the reasons below, we vacate the order and remand for further proceedings.

The parties hereto are the parents of one child, Michael Jackson, Jr., born November 12, 1988. Mother earns $400.00 per month as a drug store cashier. Father, a major league baseball player, nets $75,000.00 per month.

Both parties have appealed. Father’s issues are:

(1) The support order is excessive and confiscatory as it bears no relationship to the child’s reasonable needs.
(2) The court abused its discretion in ordering Father to establish and pay $3,000.00 per month into a trust for future expenses.
Mother’s claims are:
(1) The support order is inadequate in view of Father’s income.
(2) The court erred in its determination of retroactivity.

Because the record does not reveal a calculation of the child’s reasonable needs, we are unable to determine whether the order is excessive, inadequate or just right. We are constrained therefore to vacate the order and remand for further proceedings. In light of this disposition, we will not at this time address the remaining issues.

Because of Father’s income, this case falls outside the Support Guidelines and support must be determined pursuant to case law. Pa.R.Civ.P. 1910.16-5(d). In order to determine an appropriate support order, the court must determine each parent’s income and/or earning capacity and the reasonable needs of the child involved. Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Reasonable needs are not, of course, limited to the bare necessities of life. Id. The reasonable needs of a child whose parent or parents are wealthy may well include items which would be considered frivolous to parents who are less well off. As was so eloquently stated by the Honorable Robert E. Woodside:

"... ‘necessaries,’ and ‘luxuries’ are relative matters____
“Children of wealthy parents are entitled to the educational advantages of travel, private lessons in music, drama, swimming, horseback riding, and other activities in which they show interest and ability. They are entitled to the best medical care, good clothes, and familiarity with good restaurants, good hotels, good shows, and good camps. It is possible that a child with nothing more than a house to shelter him, a coat to keep him warm and sufficient food to keep him healthy will be happier and more successful than a child who has all the ‘advantages,’ but most parents strive and sacrifice to give their children ‘advantages’ which cost money.
A wealthy father has a legal duty to give his children the ‘advantages’ which his financial status indicates to be reasonable____
[A parent] should not be forced by a support order to make personal sacrifices to give them all the advantages to which we referred above, but a father with the assets, the youth, and the ability of the defendant can furnish his children with these advantages without any recognizable sacrifice on his part.”

Hecht v. Hecht, 189 Pa.Super. 276, 283-84, 150 A.2d 139, 143 (1959).

While conceding this principle, Father argues that, because the child was born out of wedlock and has always lived with Mother, Mother’s lifestyle is controlling. We cannot agree. Our Supreme Court and this court have consistently held that a child is entitled to support in an amount commensurate with his parents’ station in life. Melzer v. Witsberger, supra; Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974); Lesko v. Lesko, 392 Pa.Super. 240, 572 A.2d 780 (1990); Hecht v. Hecht, supra. No case law limits this principle only to children whose parents have been married. To the contrary, due process requires that children born out of wedlock be treated the same as children born during marriage. Nichols v. Horn, 363 Pa.Super. 301, 525 A.2d 1242 (1987). By statute, children born out of wedlock enjoy “all the rights and privileges as if they had been born during the wedlock of their parents.” 23 Pa.C.S. § 5102.

Those cases which have created or discussed distinctions between children born out of wedlock and those born in wedlock are the exception and have concerned problems with proof of paternity. See discussion in Estate of Greenwood, 402 Pa.Super. 536, 587 A.2d 749 (1991). Paternity is not at issue in this case so no such insurmountable proof problems present themselves.

We note that Father has stipulated that his income is sufficient “to pay any order this Court might enter ...” Tr. 1/14/92 at p. 3. Therefore, Father does not argue that the order in question imposes any financial hardship on him. In passing, we note that had the record contained sufficient information, we would not have found the order herein to be unreasonable solely on the basis of the amount.

Father’s complaint that an order commensurate with his income and lifestyle will result in a windfall to Mother is a make-weight argument. Obviously, if the child lives with Mother, Mother may indirectly benefit from certain of the child’s needs, for example, improved housing. However, that is no reason why the child should be shortchanged by denying him support commensurate with his Father’s income and lifestyle.

We recognize, as did the trial court, that Mother’s budget may or may not be indicative of the reasonable needs of the child when viewed in terms of Father’s income and standard of living. However, we see no reason why Mother cannot present, and the court consider, estimates of certain costs, e.g., the cost of housing which is not shared with other family members, or the cost of a nursery school or other items which may be appropriate. We therefore vacate the order and remand for further proceedings consistent with this memorandum.

Order vacated and.case remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished.

      . Mother currently shares living quarters with her brother.


author: BECK, Judge. HESTER, Judge,

text:
    629 A.2d 940
    COMMONWEALTH of Pennsylvania v. Judy D. STANLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 25, 1993.
    Filed June 17, 1993.
    Reargument Denied Aug. 30, 1993.

      Neil E. Rothschild, Oil City, for appellant.
    Marie T. Veon, Dist. Atty., Franklin, for Com., appellee.
    Before BECK, TAMILIA and HESTER, JJ.
   BECK, Judge.

In this appeal from the judgment of sentence for conviction of driving under the influence of alcohol, we consider for the first time whether a jury’s knowledge that an appellant was given a preliminary breath test constitutes error warranting the grant of a new trial. We hold that while such information is inadmissible and may provide cause for a new trial, the error here was harmless and the judgment of sentence is affirmed.

Appellant was convicted by a jury of driving while under the influence of alcohol to a degree which rendered her incapable of safe driving. 75 Pa.C.S.A. § 3731(a)(1). The jury was hung on the charge of driving with a blood alcohol level of .10% or greater, 75 Pa.C.S.A. § 3731(a)(4), and a mistrial was declared on that charge. Appellant challenges the ruling of the trial court permitting the district attorney to inform the jury that appellant was administered a preliminary breath test when she was stopped by police; further, appellant alleges error on the part of the trial judge for instructing the jury that while they would not hear and could not speculate about the results of the test, the purpose of the test was to assist an officer in deciding whether to make an arrest.

At trial, the Commonwealth relied on the testimony of Police Officer Robert Hartle who stated that he observed appellant proceeding through an intersection against a red light and pulled her over to issue a citation. Upon detecting a strong odor of alcohol on her breath and noting her eyes were glassy and red, Hartle asked appellant to exit her vehicle to perform three field sobriety tests. When Hartle testified that he asked appellant to perform three tests, counsel for appellant objected and, at a sidebar discussion, moved the court to prohibit any testimony about one of the tests, the preliminary breath test (PBT). The district attorney requested that she be allowed to introduce the fact that the test was given and that appellant had failed it, without telling the jury the actual reading of the result. The trial court acknowledged that the result of the PBT was not admissible; however, it ruled that the prosecution could reveal to the jury that the test was given but could not elicit any further testimony about the it.

Hartle. then testified at length about appellant’s performance of the “one-legged stand” test, which she was unable to complete satisfactorily, and the “walk and turn” test, which she also failed. The district attorney asked Hartle if he administered any other tests to which he replied that he had given appellant a “preliminary breath test.” Hartle was not asked any other questions with respect to the test. At that point, the trial judge instructed the jury about the PBT and stated that the test was used by officers in the field to determine probable cause to arrest, that is, “to avoid making an arrest unless [there is] a good basis to make an arrest.” The court explained that PBT results are inadmissible at trial because they are not sufficiently reliable as the machine is not adequately tested or calibrated to render its results suitable for the jury’s consideration. The court informed the jury that they could:

consider that fact that the officer did use and administer it and, of course, it forms part of the basis for his opinion which he’ll probably express in a few minutes in this case. And you may consider the fact that he used it in the course of exercising proper procedures in making the arrest, but you should not speculate or consider the results as substantive evidence in this case as far as whether or not the blood alcohol was at a certain level.

Appellant objected to the court’s instruction, claiming that the instruction led the jury to conclude that appellant had failed the test. It is appellant’s position that the jury should not have been made aware of the test at all.

It is clear, and the Commonwealth concedes, that the results of a PBT are not admissible at trial. Commonwealth v. Myrtetus, 397 Pa.Super. 299, 580 A.2d 42 (1990). The Myrtetus court noted that the PBT device, although approved by the Department of Health, is not tested or calibrated; therefore, its results are not admissible under 75 Pa.C.S.A. § 1547(c), which requires that breath, blood and urine tests be conducted by qualified persons using approved and regularly tested equipment in order for their results to be admissible. Id. at 308, 580 A.2d at 47. Further, the statute authorizing the use of PBTs states explicitly: “The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest.” 75 Pa.C.S.A. § 1547(k). In this instance we are faced with the question of whether the officer’s testimony that the test was given, and the trial court’s subsequent explanation of its purpose, requires a new trial.

Helpful to our analysis of this issue of first impression is the body of cases addressing polygraph tests. Like PBTs, the results of lie detector tests are inadmissible at trial due to their unreliable nature. Therefore, any reference to a lie detector test which raises an inference concerning the guilt or innocence of a defendant is inadmissible. Commonwealth v. Camm, 443 Pa. 253, 269, 277 A.2d 325, 333 (1971). The mere mention of a lie detector test, however, does not constitute reversible error. In Commonwealth v. Miller, 497 Pa. 257, 439 A.2d 1167 (1982), a prosecution witness mentioned that police wanted to give him a lie detector test to see if he was telling the truth. Our supreme court held that a new trial was not required because the question asked of the witness was not designed to elicit information about the test, the result was not mentioned, the answer was so vague that it was unclear whether the test was even administered and the trial court promptly instructed the jury to disregard the comment and not to speculate about the test. Id. at 264, 439 A.2d at 1171. Similarly, in Commonwealth v. Upchurch, 355 Pa.Super. 425, 513 A.2d 995 (1986), appeal denied, 514 Pa. 630, 522 A.2d 558 (1987), a panel of this court held that an accidental reference to a polygraph was not prejudicial because the reference was not sought by the prosecution and the testimony was stricken from the record. The Upchurch court also noted that the results were not revealed and it was not clear from the testimony that the test was given. Id. at 432-35, 513 A.2d at 998-99.

Appellant’s case is much different. Unlike in Miller and Upchurch, it is clear from the testimony of Officer Hartle that the test was administered to appellant. Further, the prosecution deliberately elicited from the officer the fact that the test was given. The testimony was not stricken from the record; indeed, the trial court specifically instructed the jury that they could consider the fact that the test is used to assist an officer in deciding whether to make an arrest. While the results of the test were not revealed, the instruction of the trial court certainly may have led the jury to conclude that appellant had failed the test.

For all of these reasons, we find that the trial court erred in allowing the Commonwealth to introduce testimony that the test was given and further erred in instructing the jury that the test could be considered, even for the limited purpose of establishing probable cause to arrest. PBTs are to be treated like polygraph tests — their results are inadmissible and any deliberate attempt to reveal to the jury the fact that the test was given, even without letting the jury know the result, is error.

Our inquiry does not end here, however; we must determine whether the admission of the evidence resulted in prejudice to appellant. See Upchurch, 355 Pa.Super. at 432, 513 A.2d at 998; Commonwealth v. Sweger, 351 Pa.Super. 188, 194-96, 505 A.2d 331, 334 (1986), appeal denied, 513 Pa. 634, 520 A.2d 1385 (1987). The other evidence supporting appellant’s conviction for driving under the influence of alcohol/incapable of safe driving was substantial. Officer Hartle testified with particularity about appellant’s performance of the other two field sobriety tests. He stated that appellant was unable to hold her leg up and count as required and that she could not walk a straight line placing one foot in front of the other without swaying from side to side, stepping off to the side and repeatedly raising her arms to regain her balance. He stated that her speech was slurred and difficult to understand. He also testified to detecting an odor of alcohol on her breath and noticing that her eyes were glassy and bloodshot. These observations, combined with the officer’s testimony that he saw appellant run a red light, clearly are sufficient to convict on the charge of DUI/incapable of safe driving. See Commonwealth v. Karch, 349 Pa.Super. 227, 229-32, 502 A.2d 1359, 1361-62 (1986). Since there was ample evidence to convict appellant without mention of the PBT, the admission of the PBT constitutes harmless error. See Commonwealth v. Foy, 531 Pa. 322, 326-28, 612 A.2d 1349, 1352 (1992); Commonwealth v. Sanchez, 407 Pa.Super. 234, 240-42, 595 A.2d 617, 621 (1991), appeal denied, 529 Pa. 668, 605 A.2d 333 (1992).

The jury’s verdict lends further support to our holding that admission of the evidence was harmless. The trial court instructed the jury that they were not to speculate whether appellant passed or failed the PBT. In addition to the testimony regarding the field sobriety tests, the results of a subsequent breathalyzer test, with a reading of .12%, was entered into evidence by stipulation of the parties. Notwithstanding this evidence, the jury was hung on the other DUI charge of driving with a blood alcohol level of .10% or greater. If the jury had considered the evidence of the PBT (despite the trial court’s instruction) and decided the level was above the legal limit (even without hearing it), it is likely they would have found appellant guilty of the other DUI charge. The mistrial on that charge supports the notion that the jury did not credit the PBT or the breathalyzer test.

Judgment of sentence affirmed.

HESTER, J., files a dissenting opinion.

HESTER, Judge,

dissenting.

I must respectfully Dissent. I agree with the majority that “the trial court erred in allowing the Commonwealth to introduce testimony that the test was given and further erred in instructing the jury that the test could be considered, even for the limited purpose of establishing probable cause to arrest.” “Preliminary Breath Tests are to be treated like polygraph tests — their results are inadmissible and any deliberate attempt to reveal to the jury the fact that the test was given, even without letting the jury know the result, is error.”

I disagree with the majority, however, with their conclusion to the effect that the admission constitutes harmless error. Even though the jury heard testimony that the results of appellant’s breathalyzer test was .12%, they did not convict her of driving with a blood alcohol level of .10% or greater. The court advised the jury that the preliminary breath test was used by the police to assist them in determining whether or not they have probable cause to arrest and that the jury could consider the fact that the officer did use the test and administered it. Even though the jury was not told the results of the test, they were very aware of the results. The appellant was arrested. This had to impact upon the jury.

In my judgment, this was a serious error. I would grant a new trial.

      . Appellant also was charged with the summary offense of failing to stop at a red light. After trial, the court found her not guilty of that charge.

      . Appellant admitted that she drank three glasses of wine before driving her car that night, but did not believe she was under the influence of alcohol. She claimed that her excessive weight, a prior back injury and her nervousness over being stopped by police all contributed to her inability to perform the tests adequately.

      . Unlike the PBT, the breathalyzer test is performed at the station house. Typically, a breathalyzer device is approved by the Department of Health, is operated by a qualified person and is calibrated and tested for accuracy. Its results are admissible at trial, as they were in this case. For a discussion of the differences between a PBT and a breathalyzer test, see Wall v. Commonwealth, 114 Pa.Cmwlth. 397, 539 A.2d 7 (1988). Appellant was given a breathalyzer test at 11:32 pm, approximately 45 minutes after she was stopped by Officer Hartle. At trial, a doctor testified for appellant and stated that appellant's blood alcohol level would not have been above the legal limit at the time she was stopped by police.