author: KELLY, Judge. BECK, Judge,

text:
    627 A.2d 1193
    COMMONWEALTH of Pennsylvania v. Richard FLOOD, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1993.
    Filed July 8, 1993.

      Samuel C. Stretton, West Chester, for appellant.
    Marilyn F. Murray, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, BECK and KELLY, JJ.
   KELLY, Judge.

Appellant, Richard Flood, appeals from the judgment of sentence reinstated on January 10, 1991 following the trial court’s denial of his motion to withdraw his December 7, 1990 guilty plea to first degree murder and possession of an instrument of crime. Appellant contends that the trial court erred in denying his motion to withdraw his plea. We hold that appellant’s contention is without merit and, therefore, affirm.

The relevant facts and procedural history may be summarized as follows. Appellant was charged with first degree murder and possession of an instrument of crime in connection with the shooting death of sixteen-year-old Jose Perez which occurred on the evening of March 15, 1989. Prior to the shooting, a group of about ten males crossed the street and one of them poured beer on the car of Luis Centrone as he was driving at 9th and Lycoming Streets in Philadelphia, Pennsylvania, on his way to visit a friend in the area. Centrone remained in his car and drove on to Delhi Street, where he told a friend about the incident. They obtained baseball bats and recruited friends to return with them to comb the area, looking for the person who poured the beer. As they were leaving the area of the incident in two cars, Jose Perez followed them into the area of 9th and Pike Streets driving an all-terrain vehicle. Centrone and his friends heard gunshots and kept going without realizing that Perez had been shot. Later, Centrone and his Mends discovered bullet holes in both of their cars.

Police found Perez at Delhi and Pike Streets at about 7:30 p.m. with a bullet hole in his lower back. Perez died at Temple University Hospital at 2:10 a.m., March 16, 1989, of a gunshot wound which severed a major artery.

Two members of the local town watch heard the shots and observed two men running, then stopping, then pushing something into their pockets. One of the men wore a distinctive red and black jacket. The police were informed of these observations. Shortly after arriving in the area, police saw appellant, emerging from an alley, wearing a distinctive red and black jacket, with what appeared to be a gun in his hand. Upon further police investigation, appellant was discovered kneeling between two parked cars, sweating and wearing a distinctive jacket which matched the description given police by the town watch members. A pat down revealed no weapon. Appellant denied coming from the alley. At a point very close to where appellant was apprehended, the police discovered a gun which later proved to be the weapon used to kill Perez. The two town watch members identified appellant’s jacket as identical to the jacket worn by the person they had witnessed running from the scene of the shooting.

The matter was tried before a death qualified jury, as the Commonwealth was seeking the death penalty. The trial extended from November 30, 1990' to December 6, 1990. Appellant testified on his own behalf that he had been playing basketball earlier in the evening of the fatal shooting and was coming from a friend’s house located at 9th and Pike Streets. According to his testimony, appellant claimed that he was on his way home when he heard gunfire and saw someone running out of an alley, whereupon appellant went into the alley and picked up a discarded gun which he intended to sell because he was unemployed. When appellant saw the police, he dropped the gun, according to his testimony, because he was on bail in another criminal matter.

At the conclusion of defense counsel’s closing argument, the Commonwealth moved to reopen the trial because the prosecution had acquired additional information which would rebut appellant’s alibi. The Commonwealth offered a facsimile of a statement obtained by military personnel from Gregory A. Brunson, Jr. In his affidavit, Brunson stated that he had purchased a gun for appellant at appellant’s behest. Brunson and appellant are cousins. The purchased gun was the weapon that killed Jose Perez.

Appellant and defense counsel then met to discuss the potential impact of this new evidence and the terms of a plea bargain as well. The Commonwealth agreed to refrain from seeking the death penalty if appellant would plead guilty to the charges. On December 7,1990, appellant entered a guilty plea and submitted to written and oral colloquies after which the trial court accepted his plea and immediately sentenced appellant to life imprisonment for the murder charge plus a concurrent one to two years for the possession of an instrument of crime charge.

On December 12, 1990, appellant moved to withdraw his negotiated guilty plea at which point the trial court vacated the sentence pending disposition of appellant’s petition. On January 10, 1990, appellant petitioned the court for appointment of new counsel. Following a hearing on that date, the trial court denied appellant’s motion to withdraw his plea and re-imposed sentence. The trial court permitted trial counsel to withdraw representation. New counsel was appointed for the purposes of this timely appeal.

Appellant raises the following issues for our review:

1. DID THE HONORABLE JOHN J. POSERINA, JR. ERR IN OPENING THE TRIAL RECORD AFTER THE CLOSING SPEECH OF TRIAL COUNSEL ON THE BASIS OF ALLOWING THE PROSECUTION TO PRESENT ADDITIONAL EVIDENCE AND WAS TRIAL COUNSEL INEFFECTIVE FOR NOT POINTING OUT THE ADDITIONAL EVIDENCE WAS CONTAINED IN A STATEMENT, DATED NOVEMBER 6, 1990, WHICH SHOULD HAVE BEEN KNOWN WELL IN ADVANCE OF THE TRIAL AND FOR NOT INVESTIGATING THE ACCURACY OF THE CONTENTS AND WAS MR. FLOOD’S SUBSEQUENT PLEA THE RESULT OF COERCION AND NOT VOLUNTARILY ENTERED?
2. DID THE HONORABLE JOHN J. POSERINA, JR. ERR IN NOT ALLOWING MR. FLOOD TO WITHDRAW HIS GUILTY PLEA AND HAVE INDEPENDENT COUNSEL AT THE HEARING, SINCE HIS TRIAL COUNSEL WAS INEFFECTIVE FOR NOT NOTING THE NEW EVIDENCE HAD A DATE PRIOR TO TRIAL, FOR NOT INVESTIGATING THE NEW EVIDENCE, AND FOR COUNSELING MR. FLOOD TO ENTER HIS PLEA WITHOUT PROPER INVESTIGATION?
3. DOES THIS COURT LACK JURISDICTION SINCE THE HONORABLE JOHN P. POSERINA, JR. FAILED TO RESENTENCE MR. FLOOD?

Appellant’s Brief at 3.

As a threshold matter, appellant questions this Court’s jurisdiction to hear his appeal because, according to appellant, the trial court failed to resentence him after denying his motion to withdraw his guilty plea. We disagree.

Rule 301 of the Pennsylvania Rules of Appellate Procedure states that no order of a court shall be appealable until it is entered upon the appropriate docket and set forth on a separate document. Pa.R.App.P. 301(a), (b). The separate document requirement, however, is a waivable defect where the trial court clearly intends its opinion to represent the court’s final decision in the case and the appellee does not object to the taking of the appeal in the absence of a separate judgment. Mitchum v. Atlantic Richfield Co., 364 Pa.Super. 588, 586, 528 A.2d 662, 663 (1987); Brandschain v. Lieberman, 320 Pa.Super. 10, 11 n. 1, 466 A.2d 1035, 1036 n. 1 (1983); Parents Against Abuse In Schools v. The Williamsport Area School District, 140 Pa.Cmwlth. 559, 567, 594 A.2d 796, 800 (1991).

Instantly, there are docket entries verifying the reimposition of appellant’s sentence. Moreover, the charge sheets accompanying the January 10, 1991 proceeding, which are included in the quarter sessions file, state that the sentences imposed on December 7, 1990 and vacated on December 12, 1990 were reimposed by the court. Additionally, the trial court opinion emphasizes the reimposition of sentence as its final decision in the case. Trial Court Opinion at 5. Thus, appellant’s jurisdiction argument is wholly without merit.

Appellant asserts that the trial court erred in denying his petition to withdraw his guilty plea after sentencing. Appellant contends that his guilty plea was involuntary due to trial court error and the ineffectiveness of his trial counsel. Specifically, appellant alleges that the trial court erred in allowing the prosecution to reopen its case to offer rebuttal testimony in the form of an incriminating affidavit submitted by appellant’s cousin. Moreover, appellant proffers that his trial counsel was ineffective for failing to object to the admissibility of the affidavit and failing to request a continuance to investigate the accuracy of this new evidence. Accordingly, appellant concludes, his guilty plea was involuntarily induced and the trial court should have permitted him to withdraw it. We disagree.

In general, a guilty plea is a waiver of treasured rights, and to be valid, the plea must be knowing, intelligent and voluntary. Pa.R.Crim.P. 319; Commonwealth v. Sauter, 389 Pa.Super. 484, 567 A.2d 707 (1989), appeal denied, 525 Pa. 598, 575 A.2d 564 (1990). Moreover,

Pursuant to Pa.R.Crim.P. 319(a), a trial judge “shall not accept [a guilty plea] unless he determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record.” Regarding the entry of a guilty plea, it has been said:
Pennsylvania has constructed its guilty plea procedures in a way designed to guarantee assurance that guilty pleas are voluntarily and understanding^ tendered. See: Pa. R.Crim.P. 319 and comment thereon. The entry of a guilty plea is a protracted and comprehensive proceeding wherein the court is obliged to make a specific determination after extensive colloquy on the record that a plea is voluntarily and understanding^ tendered. A guilty plea colloquy must include inquiry as to whether (1) the defendant understood the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has the right to a jury trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5) the defendant is aware as to the permissible range of sentences; and (6) the defendant is aware that the judge is not bound by the terms of any plea agreement unless he accepts such agreements. Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977). Inquiry into these six areas is mandatory in every guilty plea colloquy. Commonwealth v. Glaze, 366 Pa.Super. 517, 531 A.2d 796 (1987); Commonwealth v. Moore, 365 Pa.Super. 65, 528 A.2d 1364 (1987). See also: Commonwealth v. Johnson, 355 Pa.Super. 123, 512 A.2d 1242 (1986).

Commonwealth v. McClendon, 403 Pa.Super. 467, 469-71, 589 A.2d 706, 707-08 (1991) (en banc), appeal denied, 528 Pa. 622, 597 A.2d 1151 (1991) (citing Commonwealth v. Cole, 387 Pa.Super. 328, 335-36, 564 A.2d 203, 206-07 (1989) (en banc)). The importance of the guilty plea colloquy is to provide a recorded demonstration that the plea was a voluntary and intelligent action entered with full awareness of its ramifications. Commonwealth v. Iseley, 419 Pa.Super. 364, 377, 615 A.2d 408, 415 (1992) (citing Commonwealth v. Ingram, 455 Pa. 198, 200, 316 A.2d 77, 78 (1974)). While the Rule 319 checklist is a necessary part of the determination of the validity of a guilty plea, a full analysis must be based on the totality of the circumstances surrounding the plea. Commonwealth v. Iseley, supra 419 Pa.Super. at 377, 615 A.2d at 415 (citing Commonwealth v. Owens, 321 Pa.Super. 122, 131, 467 A.2d 1159, 1163 (1983)).

Instantly, the notes of testimony relating to the entry of appellant’s guilty plea reflect that the trial court made all of the appropriate inquiries pursuant to Pa.R.Crim.P. 319. Throughout the oral colloquy, appellant affirmed his knowledge and understanding of the charges against him, the factual basis thereof, his right to a jury trial, the presumption of innocence, and the possible sentence. Moreover, appellant twice affirmed the voluntariness of his plea. In addition, appellant tendered a written plea, duly signed by all the necessary parties, which was incorporated into the record. Appellant positively acknowledged his understanding that he was waiving all trial rights and defects, thereby limiting his grounds for appeal. Accordingly, the guilty plea colloquies reveal no irregularities, as they are in compliance with Pa. R.Crim.P. 319. Appellant’s guilty plea, therefore, is facially sound.

After an accused enters a guilty plea, appellate rights are limited to challenges to the validity of the plea, the legality of the sentence imposed, or the trial court’s jurisdiction. Commonwealth v. Harvey, 407 Pa.Super. 545, 548, 595 A.2d 1280, 1282 (1991), appeal denied, 530 Pa. 652, 608 A.2d 28 (1991); Commonwealth v. Moore, 365 Pa.Super. 65, 69, 528 A.2d 1364, 1366 (1987); Commonwealth v. Owens, supra. Although there is no absolute right to withdraw a guilty plea, withdrawal requests made prior to sentencing should be liberally granted. Commonwealth v. Turiano, 411 Pa.Super. 391, 406, 601 A.2d 846, 854 (1992), appeal denied, 531 Pa. 654, 613 A.2d 559 (1992); Commonwealth v. Harvey, supra. After sentencing, however, the accused must demonstrate prejudice that results in manifest injustice in order to withdraw a guilty plea. Commonwealth v. Vance, 376 Pa.Super. 493, 499, 546 A.2d 632, 635 (1988), appeal denied, 521 Pa. 620, 557 A.2d 723 (1989). Proving manifest injustice requires the accused to show that the guilty plea was invalid, ie., involuntary or unknowing. Commonwealth v. Martin, 416 Pa.Super. 507, 611 A.2d 731 (1992); Commonwealth v. Harris, 403 Pa.Super. 435, 589 A.2d 264 (1991).

Because “a plea of guilty effectively waives all non-jurisdictional defects and defenses,” Commonwealth v. Gibson, 385 Pa.Super. 571, 561 A.2d 1240 (1989), appeal denied, 525 Pa. 642, 581 A.2d 568 (1990), after sentencing, allegations of ineffectiveness of counsel in this context provide a basis for withdrawal of the plea only where there is a causal nexus between counsel’s ineffectiveness, if any, and an unknowing or involuntary plea. Commonwealth v. Turiano, supra; Commonwealth v. Vance, supra. The guilty plea hearing becomes the significant procedure under scrutiny. Commonwealth v. Turiano, supra. The focus of the inquiry is whether the accused was misled or misinformed and acted under that misguided influence when entering the guilty plea. Commonwealth v. Broadwater, 330 Pa.Super. 234, 243, 479 A.2d 526, 531 (1984).

Here, appellant challenges his guilty plea by raising claims of error and counsel’s ineffectiveness at trial, not at the guilty plea proceeding. In the context of attacking the voluntariness of his guilty plea, appellant attempts to raise alleged trial defects which he waived by the very act of entering his plea. Appellant submits, however, that, but for these trial defects, he would not have pled guilty.

Under the unusual circumstances of this case, appellant had the benefit of a full jury trial wherein the Commonwealth was seeking the death penalty. The trial proceedings ceased when appellant negotiated and entered his guilty plea. As a result of his guilty plea, appellant received the benefit of his bargain, a life sentence. The facts adduced at trial were summarized and fully incorporated by reference at the guilty plea hearing, along with the additional evidence of the affidavit given by appellant’s cousin. Appellant affirmed this factual basis, never contesting the truth of the affidavit until he petitioned to withdraw the guilty plea. At the January 10,1991 proceeding, appellant raised a question concerning a discrepancy in the dates on the affidavit.

The affidavit in question (exhibit B) is a one page document. At the top of the page appears the facsimile transmission date of December 6, 1990. In the upper right corner, in the affiant’s handwriting, is the date of November 6, 1990. At the bottom of the document, the notary’s certification is dated December 6, 1990. Appellant argues that trial counsel was ineffective for failing to note the “November 6, 1990” date, to object to the admissibility of the document as a discovery rule violation, and to request a continuance for the purpose of further investigation. The Commonwealth maintains, however, that the “November 6,1990” date is error and that the two “December 6, 1990” dates control. Because the affidavit constituted newly discovered evidence, it is the Commonwealth’s position that the trial court did not err in allowing the Commonwealth to reopen its case to rebut appellant’s testimony. Appellant submits no evidence of unlawful coercion other than these alleged trial defects which, we hold, he waived by entering a guilty plea. Assuming, for the sake of argument, that these issues have been properly preserved, we hold that appellant’s underlying claims must necessarily fail.

The rights and duties of the parties in pretrial discovery in criminal cases are governed by Pa.R.Crim.P. 305. Pursuant to this rule, the Commonwealth must comply with certain mandatory disclosure requirements. The prosecution does not violate discovery rules, however, where it does not provide the defense with evidence it does not possess and of which it is unaware during pretrial discovery. Commonwealth v. Chew, 338 Pa.Super. 472, 483, 487 A.2d 1379, 1385 (1985).

It is, moreover, within the trial court’s discretion to allow either side to reopen a case, prior to judgment, in order to prevent a failure or miscarriage of justice. Commonwealth v. Tharp, 525 Pa. 94, 575 A.2d 557 (1990); Commonwealth v. Ridgely, 243 Pa.Super. 397, 365 A.2d 1283 (1976). The admission or rejection of rebuttal evidence is within the trial court’s discretion as well. Commonwealth v. Feflie, 398 Pa.Super. 622, 581 A.2d 636 (1990), appeal denied, 528 Pa. 621, 597 A.2d 1151 (1991), citing Commonwealth v. Mathis, 317 Pa.Super. 362, 464 A.2d 362 (1983).

In reviewing challenges to counsel’s stewardship, counsel is presumed effective, and appellant bears the burden of proving his claim of ineffectiveness. Commonwealth v. McNeil 506 Pa. 607, 487 A.2d 802 (1985). To prevail on an ineffectiveness claim, appellant must demonstrate that his claim is of arguable merit, that counsel’s chosen course had no reasonable basis designed to effectuate appellant’s interests, and that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different. Commonwealth v. Pierce 515 Pa. 153, 157-60, 527 A.2d 973, 975-76 (1987); Commonwealth v. Neal, 421 Pa.Super. 478, 482, 618 A.2d 438, 440 (1992). Finally, whether counsel’s investigative decisions are reasonable depends critically on the information supplied by the accused. Commonwealth v. Peterkin, 511 Pa. 299, 319, 513 A.2d 373, 383 (1986), citing Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695-96 (1984), reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).

On the record of this case, there is an absence of such manifest injustice which would require that the appellant be permitted to withdraw his guilty plea. The prosecution maintains that it was unable to present the affidavit at issue sooner than December 6, 1990 because that is the date on which it was first received from the military personnel where appellant’s cousin was stationed. The content of the affidavit was necessary to rebut appellant’s testimony that he found the gun and was going to sell it because he was unemployed. The trial court was persuaded that the “November 6, 1990” date was an error, in view of the transmission date and the notary’s subscription date which were both “December 6, 1990.” We conclude, therefore, that the trial court did not abuse its discretion in allowing the prosecution to reopen its case to submit this offer of proof in rebuttal.

Additionally, the truth of the affidavit was presumably known to appellant. Counsel was not ineffective for failing to investigate the accuracy of the statement which appellant already knew was either true or false. Appellant does, not assert that trial counsel knew appellant challenged the truth of his cousin’s statement, that counsel advised appellant that any challenge would be useless, or that there was a reasonable probability that the result would have been different but for the alleged ineffectiveness. Also, there is nothing of record to show that the trial court admitted this new evidence at trial, or that the jury ever heard the statement prior to appellant’s entry of a guilty plea. On the contrary, when confronted with the new information, appellant chose to enter a guilty plea rather than attack the statement or allow the jury to hear it and risk the death penalty. Counsel cannot be deemed ineffective for advising the tactical decision to avoid a possible death penalty through a plea bargain. Such advice had a reasonable basis designed to effectuate appellant’s interests and does not invalidate a subsequent guilty plea. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (holding that a plea of guilty which would not have been entered except for defendant’s desire to eliminate the possibility of a death penalty and to limit the maximum penalty to life imprisonment ... was not for that reason compelled ... for the purpose of determining the validity of a guilty plea). Under the circumstances of this case, the plea was to appellant’s advantage. Thus, counsel was not ineffective for advising in favor of the plea, absent some signal from appellant that the statement was false. We conclude, therefore, that appellant’s underlying claims of coercion or inducement, even if preserved, must necessarily fail.

In appellant’s final argument, he contends that he was entitled to new counsel at the hearing on his petition to withdraw his plea of guilty. The bases of this entitlement are the same allegations of coercion or inducement raised in his second argument. Due to our independent analysis of appellant’s underlying claims, we conclude that appellant was not entitled to have independent counsel appointed to explore these issues at the withdrawal hearing.

Citing no rule of law in support of his contention, appellant relies instead on Commonwealth v. Watlington, 491 Pa. 241, 420 A.2d 431 (1980) wherein a majority of our Supreme Court held that the trial court erred in dismissing a second Post Conviction Hearing Act petition without a hearing and without the appointment of new counsel. In Watlington, petitioner raised claims of ineffective assistance of all prior counsel in his pro se petition for relief. The context of the' Watlington holding, however, is significantly different from the case at bar.

The issue in Watlington was whether petitioner’s claim of ineffective assistance of counsel had been waived for failure to raise it at the earliest stage in the proceedings at which counsel, whose effectiveness was being challenged, no longer represented the petitioner. The Court vacated the order denying petitioner relief, remanding the matter to the trial court with instructions to appoint counsel to represent the petitioner in the filing of an amended P.C.H.A. petition and any further proceedings thereon.

In the instant case, appellant entered his guilty plea following a full consideration of his options. Only after sentencing, where he received the benefit of his bargain, did appellant choose to raise his claims of trial error in an attempt to invalidate the plea. Waiver of any trial error resulted from the entry of the guilty plea which we have determined was knowing and voluntary. Nevertheless, the trial court held a hearing on appellant’s post-sentence request to withdraw his plea and appointed new counsel for this direct appeal. Appellant raised his ineffectiveness claims at the hearing, and we have addressed the merits of these claims on this appeal. Thus, appellant has had the benefit of a fall review of his claims. Therefore, we will not remand this matter for another hearing on the same issues.

Based on the totality of the circumstances surrounding appellant’s guilty plea, we hold that the trial court did not err in refusing to allow him to withdraw his plea. Appellant has failed to demonstrate any unlawful coercion or inducement which would render his plea invalid. Thus, appellant has not established the manifest injustice which would entitle him to relief. Accordingly, we affirm judgment of sentence.

Judgment of sentence affirmed.

BECK, J., filed a concurring statement.

BECK, Judge,

concurring.

I concur in the majority’s affirmance, and reach that result using a different analysis. I find the majority’s rationale would restrict too narrowly the trial court’s inquiry where defendant wishes to withdraw a guilty plea.

Appellant claims that his guilty plea was involuntary. He argues that he relied upon trial counsel’s advice to plead guilty based on counsel’s judgment that the after-discovered affidavit was admissible. The question is whether it was proper for the trial court to inquire into counsel’s pre-plea actions in determining ineffectiveness. I would find such inquiry was proper.

The majority concludes that by pleading guilty appellant has waived any claim that his plea was involuntary based upon trial counsel’s advice. The majority instructs the trial court to focus only on the plea colloquy in determining the voluntariness of the plea.

In this case I conclude that the voluntariness of the plea cannot be accomplished by a review of the plea colloquy alone. Rather, an inquiry into counsel’s pre-plea actions should be permitted to determine counsel’s effectiveness. The principles established in Commonwealth v. Nelson, 393 Pa.Super. 611, 574 A.2d 1107, 1110-15 (1990) are applicable to the instant case. In Nelson, a PCRA challenge, appellant was entitled to withdraw his guilty plea where counsel was unaware that appellant had a meritorious fifth amendment challenge to his pre-trial inculpatory statement, and where appellant relied upon counsel’s advice in entering the plea.

In the instant case, I agree with the majority that post-sentence guilty pleas result in waiver of all questions except for jurisdiction, legality of sentence and voluntariness of the plea. However, I conclude that the advice of counsel which led directly to the plea implicates the voluntariness of the plea. I therefore would permit inquiry into counsel’s pre-plea advice.

However, the majority is correct that appellant’s challenge must fail. Appellant’s claim has no arguable merit. The trial court did not abuse its discretion in reopening the proceeding on the basis of the after-discovered affidavit. Further, counsel had a sound strategic reason in advising appellant to plead guilty. The affidavit was of such probative value that it clearly exposed appellant to the death penalty. See Commonwealth v. Lewis, 423 Pa.Super. 94, 620 A.2d 516, 518-19 (Pa.Super.1993).

      . 18 Pa.C.S.A. § 2502.

      . 18 Pa.C.S.A. § 907.

      . The accounts vary. The trial court places the gun two feet from the spot where appellant was found kneeling. The Commonwealth places the gun six inches to the right of appellant's location. The weapon was discovered under one of the parked cars.

      . Appellant's challenge to this Court’s jurisdiction is rooted solely in the allegation that the January 10, 1991 notes of testimony do not reflect sentence reimposition. Appellant cites no statute, rule, or case law in support of his proposition that the determination of whether Rule 301 requirements are met is limited to examination of the notes of testimony

      . At his guilty plea hearing on December 7, 1990, the trial court addressed the extent of appellant's waiver of alleged trial defects thusly:
      THE COURT: Do you understand that by signing a guilty plea colloquy form and asking you to accept it as your plea and voluntary wish that you are thereby giving up all of your trial rights? Do you understand that?
      THE WITNESS: Yes.
      THE COURT: Finally, not really finally, but next to last, if you appealed a verdict by a jury or a verdict by a Judge, you could raise all issues that have been preserved throughout the trial. Whereas when you enter a guilty plea, you still have a right to appeal, but it is only possible to appeal on three grounds and only those three. I will explain them to you.
      Ground number one is whether or not this Court has jurisdiction, that is do I have the right or power to hear this case. Since it occurred in Philadelphia, since I am a duly elected Judge in Philadelphia, I can assure you I do have the power to hear that case.

        The second ground of appeal would be whether or not the sentence I give you is a legal sentence. Again, I can assure you that there is only two possible sentences to disagree, it is life or death.
      And third, whether or not your plea is entered voluntarily or somebody forced you to do it.
      Now, I am asking you, are you voluntarily entering this plea?
      THE WITNESS: Yes, I am.
      N.T. December 7, 1990 at 7-8.

      . Rule 305. PRETRIAL DISCOVERY AND INSPECTION
      A. Informal. Before any disclosure or discovery can be sought under these rules by either party, counsel for the parties shall make a good faith effort to resolve all questions of discovery, and to provide information required or requested under these rules as to which there is no dispute. When there are items requested by one party which the other party has refused to disclose, the demanding party may make appropriate motion to the court. Such motion shall be made within fourteen (14) days after arraignment, unless the time for filing is extended by the court. In such motion the party must set forth the fact that a good faith effort to discuss the requested material has taken place and proved unsuccessful. Nothing in this provision shall delay the disclosure of any items agreed upon by the parties pending resolution of any motion for discovery.
      B. Disclosure by the Commonwealth.
      (1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
      (a) Any evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth;
      (b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made, which is in the possession or control of the attorney for the Commonwealth;
      (c) the defendant's prior criminal record;
      (d) the circumstances and results of any identification of the defendant by voice, photograph, or in-person identification;
      (e) results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant, which are within the possession or control of the attorney for the Commonwealth;
      (f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence;
      (g) the transcripts and recording of any electronic surveillance, and the authority by which the said transcripts and recording were obtained.
      s|s H< & sfc
      D. Continuing Duty to Disclose. If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material or witness.
      E. Remedy. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

      . Appellant’s reliance on Commonwealth v. Thiel, 323 Pa.Super. 92, 470 A.2d 145 (1983) is misplaced. In Thiel, this Court held that the mandatory requirements of Pa.R.Crim.P. 305 were violated where the Commonwealth deliberately withheld inculpatory evidence of a tangible nature in the form of airline ticket stubs. The Commonwealth argued that the ticket stubs were not material to the case until Thiel took the stand. The court reasoned that, although there may be cases where the materiality of certain evidence in the Commonwealth’s possession might not become apparent until after trial has begun, the prosecution must be held to a reasonable anticipation of what evidence in its possession
        might be material in rebuttal. Requiring the disclosure of such tangible evidence, the court stated, best serves the purpose of Rule 305. See Pa.R.Crim.P. 305 Comment Sec. 1.2: Scope of Discovery (“In order to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with the protection of persons, effective law enforcement, the adversary system, and national security.”).
      Because of the date discrepancy on the affidavit in the case at bar, appellant argues, the Commonwealth must have had this information prior to December 6, 1990, thereby suggesting a discovery rule violation. At the very least, appellant submits, his counsel was ineffective for failing to seek a continuance to investigate whether the Commonwealth actually had possession of the information at an earlier time. The trial court, however, was convinced that the Commonwealth had not deliberately withheld the information and considered the affidavit as newly discovered. We will not second-guess trial counsel’s tactic where it has a reasonable basis, particularly when counsel's investigative decisions depend upon information supplied by the appellant.

      . The contents of the note were read into the record at the guilty plea hearing as follows:
      That Gregory Albert Brunson, B-R-U-N-S-O-N, Senior, who is presently in the United States Navy in Newport, Rhode Island — if Mr. Brunson were called he would state that he’s the cousin of the defendant and that in February of '88, the defendant came to him while, he, Mr. Brunson, was in Philadelphia visiting his — Mr. Brunson's family.
      The defendant told Mr. Brunson about a problem that existed between blacks and Puerto Ricans in his neighborhood, and that he had — he feared for the welfare of his family. The defendant asked Mr. Brunson to get him a gun. Mr. Brunson went back to the Naval Air Station in Brunswick, where he had been assigned. While he was up there, he received several phone calls following his return to NAS Brunswick from the defendant. The defendant told him that a man had come to their house with a gun and threatened everyone in the house. The defendant also told his cousin that he feared that his house would be firebombed. He feared for the welfare of his girlfriend and children. After hearing this, Mr. Brunson decided to buy a gun for the defendant as the defendant had requested. He purchased the gun which has been marked as C-ll for identification from the Brunswick Gun Shop, 31 Bath, B-A-T-H, Road in Brunswick, Maine. After purchasing the weapon, Mr. Brunson went to Philadelphia, within a couple of weeks of the purchase and gave the gun to the defendant.
      Your Honor, that is the one piece of evidence I would request to add or to include along with all that has been incorporated.
      C-l 1 was the murder weapon found nearby when police apprehended appellant.

      . Appellant contends that, upon subsequent investigation, his cousin maintained the truth of the affidavit for more than a year. For the purpose of his appeal, appellant later offered a second affidavit executed by his cousin recanting his statement of "December 6, 1990.” See Exhibit C and attached affidavit.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    627 A.2d 1204
    Allan PONTIERE, et al. v. JAMES DINERT, INC., South Hills Heating and Air Conditioning Co., Inc. Appeal of JAMES DINERT, INC.
    Superior Court of Pennsylvania.
    Argued May 12, 1993.
    Filed July 8, 1993.

      Michael F. Fives, Pittsburgh, for appellant.
    Henry E. Rea, Jr., Pittsburgh, for Pontiere, appellee.
    Before: McEWEN, OLSZEWSKI and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order entered against James Dinert, the general contractor and seller of a multiple-unit condominium complex near Pittsburgh. Plaintiffs, some 52 original purchasers [“Buyers”] of the individual condominiums, contended below that their furnaces were constructed in a defective manner and that Dinert is liable for the cost of the repairs under the implied warranty of habitability and workmanlike construction. The Honorable Stanton R. Wettick heard the Buyers’ cause without a jury, awarded judgment in their favor, and denied Dinert’s post-trial motions. This timely appeal followed.

Buyers purchased their condominium units from Dinert between 1984 and 1988. In January, 1991, however, two Buyers experienced problems with fumes emanating from their furnaces. The complex’s property manager investigated the problem and contacted Equitable Gas Company [“Equitable”] to diagnose the situation. Equitable “red-tagged” the furnaces because they had insufficient access to “combustible air.” The manager called a repair company, whose engineer, John Conley, confirmed Equitable’s conclusion that the ventilation in the individual furnace rooms was inadequate. The crux of the problem was that the furnaces were enclosed in small rooms whose only access to outside air was through a chimney vent. According to Conley, this violated the National Fuel Gas Code [the “Code”], which requires individual furnace rooms to have access to outside air through two vents. As a result, Dinert made an offer to all residents of the complex including Buyers to alleviate the problem by installing a grill to provide a source for combustible air. Buyers, however, hired Conley to bring the furnace rooms into compliance with the Code, contending that the grilling was an insufficient remedy under the Code in effect at the time their systems were repaired.

Judge Wettick found that the furnaces were not constructed in compliance with the accepted standards of the Code. He therefore found Dinert liable to Buyers under the statutory warranty provision of Pennsylvania’s version of the Uniform Condominium Act [“UCA”], 68 Pa.C.S.A. § 3411, which protects purchasers of condominiums against “structural defects” in newly purchased units. He thus awarded each Buyer the fair market value of the cost to bring the furnaces into compliance with the applicable regulations. Dinert presents four claims on appeal: (1) Buyers waived all warranties other than a limited two-year warranty, including the implied warranty of habitability, by entering into their contract with Dinert; (2) insufficient evidence supported the trial court’s finding that any warranties were breached; (3) the court excluded relevant evidence regarding similar furnaces that were installed in condominium complexes in the vicinity of Dinert’s; and (4) two Buyers’ claims are barred by res judicata. We address each issue below.

At the outset, however, we note our standard of review for civil cases which are heard without a jury:

It is settled that the findings of a trial judge sitting without a jury must be accorded the same weight and effect on appeal as a jury verdict, and will not be disturbed in the absence of an abuse of discretion or a finding of lack of evidentiary support.... An appellate court, however, is not bound by the trial court’s conclusions of law based on its findings of fact.... It is also clear that the party favored by the findings of the trial judge is entitled to have the evidence viewed in the light most favorable to him; that is, all the evidence and proper inferences favorable to him must be taken as true and all unfavorable inferences rejected____ This is particularly true in a case in which the credibility of witnesses must be closely evaluated.

Amodeo v. Ryan Homes, Inc., 407 Pa.Super. 448, 595 A.2d 1232 (1991). We now turn to Dinert’s claims.

I. Implied warranties

Pennsylvania law recognizes an implied warranty of habitability in contracts where builders-vendors sell new homes to residential purchasers. Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972). The implied warranty requires that a builder, typically more skilled and experienced in the construction field than the purchaser, “bear the risk that a home he built will be functional and habitable in accordance with contemporary and community standards.” Id. at 128, 288 A.2d at 777. Although the implied warranty may be waived by clear and unambiguous contract language, such language must be sufficiently particular to inform the home purchaser of the right he or she is waiving. Tyus v. Resta, 328 Pa.Super. 11, 476 A.2d 427 (1984). Furthermore, the contract must always be construed against the builder and in order to exclude warranty coverage for latent defects, “language of disclaimer must refer to its effect on specifically designated, potential latent defects.” Id. at 20, 476 A.2d at 432.

When Buyers purchased their individual condominiums, they entered into a purchase agreement which purported to limit their warranty protection:

Limitation of Warranties: Declarant [Dinert] warrants against structural defects in components installed by the Declarant, work done or improvements made by the Declarant, and warrants that the unit and common elements have been inspected for structural and mechanical defects and that any such defects have been found.
Declarant warrants against structural defects in the common element for two (2) years [after the building is . conveyed to a bona fide purchaser]____
# ❖ * # * *
These are the only warranties given to the buyer by the Declarant, except for the warranty of title. Declarant disclaims any and all implied warranties of merchantability and fitness for a particular purpose with regard to the unit, personal property contained therein, fixtures contained therein and appurtenances thereto.

Reproduced record, at 48.

Dinert claims that this language was sufficient to disclaim the implied warranty of habitability. He also claims that since the only applicable warranty was the express contract warranty, Buyers’ claims are time barred because the lawsuit was filed more than two years after the breach. We disagree.

We held in Tyus, supra, that a builder-vendor may not exclude the implied warranty of habitability absent “particular” language which is designed to put the buyer on notice of the rights he is waiving. There is nothing particular about the contract language involved in this case. Indeed, it makes no reference at all to the warranty of “habitability,” referring only to the warranties of merchantability and fitness for a particular purpose. Moreover, the warranty provision assuages Buyers to believe that the builders conducted a thorough inspection and made all repairs necessary to render the condominiums perfectly liveable. This is precisely the type of contract language which reinforces our recurrent position that “compared to the ordinary home purchaser, the builder-vender possesses ‘superior knowledge and expertise in all aspects of building, including its legal aspects.’ ” Tyus, at 18, 476 A.2d at 431 (quoting Contractor Industries v. Zerr, 241 Pa.Super. 92, 106, 359 A.2d 803, 810 (1976) (Cercone, J., dissenting)). We find that Buyers did not waive their right to claim a breach of the implied warranty of habitability by entering into a contract containing the language quoted above.

Relief was properly due all Buyers under the implied warranty of habitability. The defective construction manifested itself in increased amounts of carbon monoxide emissions into two units in 1991. This defect, existent at the time the units were constructed, was not capable of discovery upon a reasonable inspection by a consumer and certainly rendered the units uninhabitable. Moreover, the applicable limitations period did not begin to run until discovery of the defect. Amodeo, supra. The instant lawsuits were filed within six months after the defect was discovered; Buyers therefore brought their actions under the implied warranty in a timely fashion.

We note that we are affirming the trial court on grounds other than those relied on below, which is a proper course. Elder v. Nationwide Insurance Co., 410 Pa.Super. 290, 599 A.2d 996 (1991). The trial judge did not rely on the implied warranty of habitability to sustain Buyers’ cause of action. Rather, he relied on Pennsylvania’s version of the Uniform Condominium Act, 68 Pa.C.S.A. § 3101 et seq., which provides, in pertinent part:

(b) General rule. — A declarant warrants against structural defects in each of the units for two years from the date each is conveyed to a bona fide purchaser, and all of the common elements for two years.

Id., § 8411(b).

“Structural defects” are defined as “those defects in components constituting any unit or common element which reduce the stability or safety of the structure which fall below accepted standards ...” Id., § 3411(a). As the trial court correctly noted, this warranty may not be excluded or modified by agreements between “declarants,” such as Dinert, and purchasers of units for residential use, such as Buyers. Id., § 3411(d). Thus, the trial court’s finding that the furnaces were constructed below the Code standards (a matter which we will discuss more thoroughly below) reasonably supported its determination that there were “structural defects” for which Dinert is responsible under the UCA, despite the contractual disclaimer language.

Judge Wettick’s reliance on the UCA as to all Buyers, however, is somewhat problematic because of a time limitation included in its warranty provisions. Section 3411, although non-excludable by Buyers, must be read in conjunction with subsection (e) which provides that “[n]o action to enforce the warranty created by this section shall be commenced later than six years after the warranty began.” Id. Thus, since some of the Buyers purchased their units in 1984 and early 1985, their actions regarding the “structural defects” were barred since this action was not brought until mid-1991. Since the provisions of the UCA, however, are meant only to supplement purchasers’ remedies otherwise available under general law, 68 Pa.C.S.A. § 3108, Buyers were entitled to recovery under either the UCA or the implied warranty of habitability theory.

Finally, Dinert’s argument that the premises were entirely habitable because there were no emissions problems with the furnaces as constructed until 1991 is unpersuasive. A potential hazard, as opposed to one that is apparent, renders a premises no more habitable. To hold otherwise would require unit owners to await disaster before they could make a claim against the builder, a result that would strain logic.

II. Sufficiency of the evidence

Dinert argues next that the trial judge erred in finding that the furnaces were defective as constructed, resulting in a breach of the implied warranty of habitability and the UCA statutory warranty. Dinert argues that undisputed expert testimony establishes that the furnaces, as constructed and after adding grilling, are safe and in compliance with standards promulgated by the Association of Heating, Refrigeration, and Air Conditioning Engineers [ASHRAE], National Fire Prevention Act [NFPA], and the BOCA Code. Furthermore, Dinert places special emphasis on the trial judge’s own description of Buyers’ burden, which he now claims that they failed to meet:

The structure is not safe if defects in its components jeopardize the health of occupants. If the plaintiffs can establish that the furnace systems constituted a health hazard to the occupants of their condominiums by falling below accepted health code standards, they will have established a breach of warranty against structural defects.

Trial court memorandum denying Dinert’s motion for summary judgment, January 13, 1992. Thus, Dinert argues that since the testimony established that the furnaces he repaired with the grills were safe, Buyers failed to prove that the premises were uninhabitable. We disagree.

First, we reject Dinert’s semantic argument regarding the trial court’s statement. Under the UCA, Buyers had the burden of proving that the defective condition “reduee[d] the stability or safety of the structure below acceptable standards ...” to establish a breach of warranty. 68 Pa.C.S.A. § 3411(a). Likewise, under the implied warranty of habitability, Buyers are entitled to a home that is “functional and habitable in accordance with local community standards.” Elderkin at 128, 288 A.2d at 777. Buyers are not required to make a showing of actual “jeopardy” or actual harm, as Dinert contends. Rather, if Buyers proved that their condominium unit was built below acceptable standards, they have proved that their home is ipso facto unsafe or uninhabitable. We agree with Buyers that allowing a builder to sell a home or condominium that is “defectively safe” demeans the very purpose of guidelines regulating furnace systems, which are meant to ensure the safety and well-being of a residence’s inhabitants against the very harm which occurred in two units.

Second, testimony offered on Buyers’ behalf supports the trial court’s factual findings. Buyers’ expert testified that Equitable, the supplier for Buyers’ condominiums, requires heating and ventilation systems to comply with the Code. Under the 1984 Code, the furnaces were inadequately constructed because they lacked sufficient access to combustible air. Thus, Equitable “red-tagged” one of Buyers’ furnaces when its employees noted a violation and withheld its services until the defect was satisfactorily resolved. This testimony was not contradicted, despite defense experts’ testimony that the units as built were safe and that Equitable does not have final authority regarding which repairs are sufficient to effect compliance with the Code. The trial judge was well within his discretion in finding that because the furnaces did not comply with applicable guidelines, Dinert breached both the statutory warranty against structural defects and the implied warranty of habitability.

Moreover, we agree with the trial court’s conclusion that even if Dinert’s efforts to repair the furnaces by installing “grills” satisfied the Code provisions, this is relevant only in determining whether Buyers failed to mitigate damages by not accepting Dinert’s offer to repair the furnaces. A party who suffers a loss has a duty to make a reasonable attempt to mitigate damages, but the burden is on the party who breaches the contract to show how further loss could have been avoided through the reasonable efforts of the injured party. Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987). Since there was no evidence that Equitable accepted Dinert’s repairs as satisfactory, Dinert failed to prove that Buyers did not mitigate their damages by accepting his offer. The trial court did not abuse its discretion by awarding the reasonable cost of repairs to Buyers.

III. Excluded evidence

Dinert contends that the trial court erroneously excluded his testimony that over 1,200 similar condominium units were built with furnace systems identical to Buyers’. He contends that testimony in this regard was relevant to establish community construction standards. We disagree.

It is well-established that the admission and exclusion of evidence is within the sound discretion of the trial judge, and we may not reverse absent an abuse of that discretion. Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 537 A.2d 334 (1988), alloc. denied, 520 Pa. 594, 552 A.2d 249 (1988). Moreover, evidence is relevant only if it tends to make a fact at issue more or less probable. Id. at 338, 537 A.2d at 338 (citing Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983)). Dinert’s proffered evidence simply was not relevant. The manner in which similarly located condominiums were built has no bearing on what construction standards are acceptable in the local community. Popularity cannot be equated with propriety. These are two distinct inquiries and the trial judge did not abuse his discretion in excluding Dinert’s testimony in this regard.

IV. Res judicata

Finally, Dinert contends that two of the Buyers’ actions should have been barred under the doctrine of res judicata. We disagree.

Janice and Joseph Lentini and Margie and Herbert Higgonbotham [collectively referred to as “the plaintiffs”] brought separate actions against Dinert in 1987. Both lawsuits claimed that Dinert installed a 50,000 BTU furnace the plaintiffs’ respective condominium units rather than a 75,000 BTU furnace as promised under the contract. In order for res judicata to bar an action, there must be four concurrent elements: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity in the quality in the persons for and against whom the claim is made. Melat v. Melat, 411 Pa.Super. 647, 602 A.2d 380 (1992). The only commonality between the prior suits and this action is the contractual relationship between the plaintiffs and Dinert. In the prior suit, the plaintiffs sought installation of the proper type of furnace. In this suit, they seek damages incurred in repairing a latent defect in their furnace that was discovered in 1991, four years after the prior action. Since the relief sought in the two actions differs entirely, the plaintiffs were not precluded from bringing this action.

Order affirmed.

McEWEN, J., concurred in the result.

      . Although Buyers did not plead the statutory warranty theory in their complaint, they were not required to. Pennsylvania is a fact pleading jurisdiction; a complaint must identify the material issues in the case by succinctly summarizing the material facts underlying the claim. Sevin v. Kelshaw, 417 Pa.Super. 1, 611 A.2d 1232 (1992). It is not necessary, however, for a plaintiff to plead the legal theory which defines his cause of action. This determination is left for the trial court. Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985).

      . We have excluded portions of the warranty provision which refer to the time of commencement of the two-year statutory warranty as to the “common elements” of the condominium. A "common element” is defined as “[a]ll portions of a condominium other than the units.” 68 Pa.C.S.A. § 3103. Since the problems here are identified as being attributable to each “unit” as defined by the UCA, Id.., we may limit our discussion of the warranty coverage to that of each unit, which runs for two years from the date each Buyer purchased his or her condominium.

      . Judge Wettick's reliance on the UCA is not fated, however, because Dinert did not argue at trial that the time limitation in § 3411(e) applied to bar the claims of, 1984 and 1985 Buyers. Thus, the theory as we have described it was waived. Fudula v. Keystone Wire & Iron Works, 283 Pa.Super. 502, 424 A.2d 921 (1982).

      . The evidence established that Dinert’s repair efforts complied with the 1984 Code, but not the amended 1988 Code. Thus, the question that was left unresolved was whether Dinert's 1991 repairs were governed by the 1984 Code, which was in effect at the time of the original construction, or the 1988 Code, effective at the time of repairs. A defense expert testified that minor repairs are normally governed by the Code that existed when the heating systems were built, but major repairs or renovations were generally covered by the Code applicable at the time of the repairs. Overshadowing all of this, however, is the simple fact that the gas company, Equitable, must be satisfied that the repairs are in compliance with applicable Code provisions lest the units are not supplied with gas. Neither party sought Equitable’s determination, thus it was left for the trial judge to determine who bore the burden of seeking Equitable’s testimony, which we discuss below.


author: BROSKY, Judge.

text:
    627 A.2d 1210
    Brian W. ASHBAUGH, Appellant v. Barbara P. ASHBAUGH.
    Superior Court of Pennsylvania.
    Argued April 29, 1993.
    Filed July 8, 1993.

      Kim D. Eaton, Pittsburgh, for appellant.
    Bernadette Staroschuck, Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and TAMILIA and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the final order of the lower court which dismissed appellant’s exceptions and directed appellant to pay support for his children in accordance with the terms of the parties’ marital agreement.

Appellant presents the following issues for review: (1) whether the trial court erred in concluding that the parties’ intended that their agreement would survive entry of the divorce decree and not merge therewith; and (2) whether the parties’ conduct in and rulings relating to prior litigation evinced an intent to treat the agreement as a modifiable court order, and if so, whether the law of the case or some other similar doctrine applies so as to render the agreement modifiable in the instant action. For the reasons set forth below, we affirm the order of the trial court.

We will briefly recount the relevant facts and history of this case before proceeding to consider the merits of this appeal. Appellant, Brian Ashbaugh, and appellee, Barbara Ashbaugh, were married in New York in June, 1966. The parties formally separated in 1983 and were divorced in 1985. Two children, Robert and James, were born during the marriage. • The parties also adopted a Korean child, Allison Ashbaugh, while they were married. Both parties later remarried and appellant has had children with his second wife.

Following the parties’ separation, appellee instituted an action for the support of herself and her three children. This action was later discontinued when the parties entered into a settlement agreement on September 1, 1983. The agreement required, inter alia, that appellant pay support in the amount of four hundred dollars ($400.00) per child per month, i.e., a total of twelve hundred dollars ($1,200.00) per month for the support of the three minor children. The agreement further set forth a formula for adjusting the amount of child support pursuant to which appellant’s current federal gross income would be compared to his 1983 federal gross income and the percentage increase or decrease resulting therefrom would be multiplied by $400.00 to determine the new amount of support for the following year. In addition, the agreement requested that the court approve the agreement and either recite the approval in the divorce decree, incorporate the agreement into the decree, or incorporate and merge the decree. The agreement also explicitly stated that it would survive entry of the decree and continue to be enforceable unless the agreement was expressly merged into the divorce decree by the court. Paragraph thirteen of the agreement, which involved disposition of the parties’ property and payment of marital debts, was later modified pursuant to an amendment executed on April 12, 1985.

Appellant subsequently instituted divorce proceedings against appellee. The parties were divorced, upon mutual consent, in April, 1985. The divorce decree entered by the court provided that the parties’ rights would be governed by the September, 1983 agreement and the April, 1985 amendment thereto. Although the decree expressly incorporated the agreement and amendment, the lower court never expressly stated that the agreement and amendment merged with the decree.

Following entry of the divorce decree, the parties have engaged in numerous disputes regarding matters of child support and payment of the children’s medical expenses. The first challenge arose when appellant refused appellee’s repeated requests that appellant pay for orthodontic work for his daughter, Allison, as he was obligated to do under the agreement. As a result, appellee instituted an action to enforce the agreement during the latter part of 1985. A hearing was held in January, 1986 following which appellant was directed to pay Allison’s dental expenses. Appellee was also awarded counsel fees and costs. Appellant filed exceptions to the hearing officer’s recommendations which were dismissed by the trial court. Orders affirming the hearing officer’s directive that appellant pay for his daughter’s dental expenses as well as the award of counsel fees and costs were entered on February, 19, 1986. Appellant did not appeal these orders.

Several months later the parties’ son, Robert Ashbaugh, instituted a support action against his father. Following a hearing, an award of support in the amount of $540.00 was recommended by the hearing officer. Appellant filed exceptions in which he asserted, among other things, that the hearing officer erred in failing to calculate the award in accordance with the terms of the parties’ agreement. Appellant’s exceptions were granted to the extent that the lower court reduced the award to $460.00, the amount of support which appellant would be required to pay pursuant to the parties’ agreement. Robert filed a petition for reconsideration of the order in which he suggested that his award of college expenses should not be governed by the support agreement because he was not a party thereto. The court disagreed and denied Robert’s request for reconsideration. Neither party appealed the support order. Support payments to Robert terminated when he graduated from college.

No further litigation ensued until 1989, when the parties’ daughter was admitted into a drug rehabilitation clinic and later transferred to an adolescent recovery center. Pursuant to the parties’ agreement, appellant was obligated to pay the child’s costs of treatment. However, appellant filed a petition in which he sought to modify that portion of the agreement which required him to pay for non-reimbursable medical expenses. Appellant also requested the court to abate his support obligation until Allison returned to live with appellee. In response to appellant’s petition, the trial court entered an order on February 9, 1989 which directed the parties to appear for a hearing limited to the question of whether the court order, ie., the decree which incorporated the agreement, could be modified. Appellant requested several continuances which were granted by the lower court. The certified list of docket entries submitted to this court indicates that no hearing was ever held and that no further action was taken with respect to appellant’s petition.

The parties’ most recent dispute arises out of appellant’s refusal to increase his support payments in accordance with the formula set forth in the agreement. As a result, appellee instituted this action to enforce the terms of the agreement. Appellant responded by filing a petition for modification of his support obligation in which he sought to have the support award calculated in accordance with existing Pennsylvania law rather than the formula specified in the parties’ agreement. These matters were consolidated and a hearing thereon was conducted on February 28, 1992. The hearing officer subsequently recommended that the lower court dismiss appellant’s petition for modification and require appellant to pay support in the amount calculated pursuant to the formula contained in the parties’ agreement. A temporary order effectuating the hearing officer’s recommendations was then entered. Appellant thereafter filed timely exceptions which were denied by the trial court. After entry of a final order in this matter, appellant initiated this timely appeal.

The scope of review in a typical support matter focuses upon whether the trial court abused its discretion. Blue v. Blue, 532 Pa. 521, 525, 616 A.2d 628, 630 (1992). An abuse of discretion is “[n]ot merely an error of 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 or the record, discretion is abused.” Id., 532 Pa. at 526, 616 A.2d at 631 (citations omitted). We will evaluate appellant’s arguments and the decision of the trial court in accordance with this standard.

Appellant first argues that the agreement must be deemed to have merged with the decree pursuant to Commonwealth ex. rel. Tokach v. Tokach, 326 Pa.Super. 359, 474 A.2d 41 (1984), overruled by D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990) (en banc), allocatur denied, 525 Pa. 646, 581 A.2d 572 (1990). Appellant’s reliance on Commonwealth ex rel. Tokach v. Tokach is misplaced. In Tokach, this court held that a settlement agreement which is incorporated into a divorce decree, either by reference or set out in full, merges into the decree and should no longer be given independent effect. Id., 326 Pa.Super. at 362, 474 A.2d at 42. However, Tokach is factually distinguishable in that the agreement therein did not contain a non-merger provision and it appeared from the parties’ agreement that they intended to permit modification by court order. By way of contrast, the parties’ agreement in the case sub judice expressly addresses the question of merger and the parties’ intent that the agreement survive entry of the divorce decree. Further, Tokach is no longer controlling as it was expressly overruled by an en banc panel of this court. See D’Huy v. D’Huy, 390 Pa.Super. at 517, 568 A.2d at 1293.

In analyzing questions of merger and modifiability, we must ascertain whether or not a merger was intended by the parties. McGough v. McGough, 361 Pa.Super. 391, 394, 522 A.2d 638, 640 (1987), allocatur denied, 515 Pa. 623, 531 A.2d 431 (1987). This determination is made by analyzing the terms of the agreement itself. Id. When construing agreements involving clear and unambiguous terms, this court need only examine the writing itself to give effect to the parties’ understanding. McMahon v. McMahon, 417 Pa.Super. 592, 599-600, 612 A.2d 1360, 1364 (1992) (en banc). As this court has also recognized,

it is settled that, if a property settlement agreement containing support provisions survives as an enforceable contract, it is governed by the law of contracts____ If a property settlement agreement is merged into a divorce decree or court order, ... the agreement takes on all of the attributes of support [o]rders for purposes of modification and enforcement. Such an agreement, therefore, is no longer enforceable as a contract but is subject to the full range of modification and change permitted to [support] [o]rders....

Flick v. Flick, 408 Pa.Super. 110, 113, 596 A.2d 216, 218 (1991), allocatur denied, 529 Pa. 657, 604 A.2d 249 (1992) (citations and quotation marks omitted). Accord McMahon v. McMahon, 417 Pa.Super. at 598, 612 A.2d at 1363; D’Huy v. D’Huy, 390 Pa.Super. at 515-517, 568 A.2d at 1292-1293.

As applied here, the 1983 marital agreement discussed several options regarding its effect and enforcement and is set forth in relevant part as follows:

In the event that either party secures a decree of divorce or dissolution of marriage in any court of competent jurisdiction, this agreement shall be presented to the court for its approval and the court shall be prayed and requested to recite the approval of the agreement in the decree or to incorporate the agreement in the decree by reference or to incorporate the agreement in the decree by reference and merge the agreement in the decree. The parties stipulate and agree that unless this agreement is expressly merged in a decree of divorce or dissolution of marriage hereafter entered, the terms hereof shall continue, notwithstanding the entry of such decree hereafter, to be fully independent and viable in themselves, and enforceable to the same extent and by the same means and remedies as though such decree had not been entered.

Agreement, dated September 1, 1983, at paragraph twenty-eight, pp. 10-11. The trial court’s divorce decree expressly incorporated the agreement and provides:

The rights of the parties shall be governed by the Agreement dated September 1, 1983, and attached hereto as Exhibit “A”, and the Modification and amendment to Agreement Dated September 1, 1983, dated April 12, 1985, and attached hereto as Exhibit “B”, between the plaintiff and Defendant which are incorporated into this decree.

Decree in Divorce, dated April 19, 1985.

A review of the agreement and the divorce decree reveals that the marital agreement was expressly incorporated but not expressly merged into the divorce decree. The parties’ agreement clearly indicates that the parties intended that the agreement would survive entry of the divorce decree unless the agreement was expressly merged into the decree. Because the decree does not provide that the agreement is merged therein, the agreement survived entry of the decree and is not subject to modification by the court. Flick v. Flick, supra.

While appellant does not seriously dispute the language contained in the agreement, he nevertheless argues that we must look to the parties’ conduct subsequent to the execution of the agreement and entry of the divorce decree to determine their intent. The essence of appellant’s reasoning is that the parties’ subsequent conduct establishes an intent to treat the agreement as a court order which is subject to modification. Appellant also urges this court to conclude that the parties’ conduct in prior actions to enforce the agreement and the trial court’s rulings in these proceedings has rendered the agreement modifiable in the present action pursuant to the doctrines of the law of the case and res judicata. Unfortunately, appellant does not refer us to any relevant statutes or cases in support of his position nor has our own research disclosed any such authority. We are, moreover, unpersuaded by appellant’s mischaracterization of appellee’s conduct and the trial court’s rulings.

A review of the previous litigation between the parties does not support the inferences drawn by appellant. The record indicates that appellee sought to enforce the terms of the agreement through the filing of a contempt petition. However, the fact that appellee utilized the wrong procedure cannot impute an intent to her which is contrary to the clear intent expressed in the written agreement and which is totally inconsistent with the results sought to be achieved via the prior actions, ie., enforcement of the terms of the written agreement. The trial court’s orders also recognize that the parties intended their agreement to survive entry of the divorce decree, as the court has repeatedly enforced the terms of the agreement in each action. We therefore conclude that the parties’ conduct and the trial court’s rulings evidenced no intent to treat the agreement as a modifiable court order.

Appellant’s arguments regarding application of the doctrines of the law of the case or res judicata are likewise without merit. The law of the case doctrine “means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case.” Banker v. Valley Forge Insurance Co., 401 Pa.Super. 367, 374, 585 A.2d 504, 508 (1991), allocatur denied, 529 Pa. 615, 600 A.2d 532 (1991) (citations and quotation marks omitted). The doctrine of res judicata involves a somewhat different analysis. For that doctrine to be applied, there must be: (1) an identity in the thing sued upon; (2) an identity in the cause of action; (3) an identity of persons and parties to the action; and (4) an identity of the capacity of the parties suing or being sued. Id., 401 Pa.Super. at 375, 585 A.2d at 508. Appellant is not eligible for relief pursuant to either doctrine because the elements thereof have not been met. Even were we to assume, arguendo, that the criteria had been fully satisfied, application of the doctrines would still require appellant’s support obligation to be determined in accordance with the terms of the written agreement since the trial court’s prior rulings have all resulted in the enforcement of that agreement.

Our scrutiny of the record has further convinced us that the doctrines of the law of the case or res judicata are also inapplicable to the February 9, 1989 order entered by the lower court. This order is set forth as follows:

AND NOW, to wit, this 9[th] day of Feb[.], 1989, the foregoing Petition to Modify the Existing Support Order having been filed in this Court, the parties hereto are directed to appear in Room 603 City-County Building, Grant Street, Pittsburgh, Pennsylvania for a court hearing on the 7[th] day of April, 1989, 8:30 [a].m., or as soon thereafter as suits the convenience of the court, limited to [the] question of whether the court order (i.e., decree incorporating agreement) should be modified, as opposed to modification of the agreement.

Order, dated February 9, 1989 (emphasis in original). As indicated by the terms of the order, the court merely scheduled a hearing, the subject of which was limited to the question of whether the divorce decree could be modified. Although the order evinced a recognition of the fact that the parties’ agreement could not be modified and that the divorce decree might be subject to modification by the court, the order was never intended to represent a final legal ruling on this issue. It thus would be completely improper to apply the aforementioned doctrines to a trial court order which does not constitute a final ruling that the divorce decree is subject to modification.

In sum, we find that the trial court did not err in concluding that the parties’ agreement expressed their clear and unambiguous intent that the agreement would not merge with the divorce decree. The trial court likewise did not err in concluding that the parties’ conduct evinced no intent to treat the agreement as a court order. The trial court also properly determined that the doctrines of res judicata and the law of the case did not require the prior litigation to be given res judicata effect in this case. We therefore affirm the order of the trial court.

Order affirmed.

      . Robert was born in January, 1968 and is twenty-five years of age at the present time. James was born in December 1970 and is twenty-two.

        . Allison was born in May, 1972 and is now twenty-one years of age.

      . The 1985 amendment only modified paragraph 13 and did not affect any of the child support provisions which are at issue here. Consequently, the 1985 amendment will not be further discussed.

      . We also note that the 1988 amendments and 1990 provisions which repeal and re-enact the Divorce Code are inapplicable to the parties’ 1983 agreement which was executed prior to the effective date of the 1988 and 1990 acts. See 23 P.S. § 103 and the Act of December 19, 1990, P.L. 1240, No. 206, § 5 codified at 23 Pa.C.S.A. § 3101, Historical and Statutory Note (which indicate that the provisions of the Divorce Code shall not affect any marital agreement executed prior to the effective date of the Divorce Code of 1980 or any amendment or modification thereto). To the extent that appellant suggests that D’Huy and this court’s subsequent decisions are inapplicable in the instant case as they were decided long after the execution of the parties' settlement agreement, we must reject appellant’s assessment. Even before D’Huy was decided, this court applied the same analysis relied upon in D’Huy to marital agreements executed prior to the effective date of the 1988 amendments to the Divorce Code. See, e.g., McGough v. McGough, 361 Pa.Super. 391, 394, 522 A.2d 638, 640 (1987), allocatur denied, 515 Pa. 623, 531 A.2d 431 (1987); Sonder v. Sonder, 378 Pa.Super. 474, 488-495, 549 A.2d 155, 162-166 (1988) (en banc).

      . We note that our Supreme Court has indicated that where a parent chooses not to sue on the agreement but seeks redress by filing a support complaint, the parent forsakes his or her contractual rights under the agreement and the court is not bound by the terms of the agreement. See Knorr v. Knorr, 527 Pa. 83, 86-87, 588 A.2d 503, 504-505 (1991). Unlike the circumstances in Knorr, however, appellee has not petitioned the court in either the present action or in any prior proceedings for an increase in the amount of child support. Appellee also has not forsaken the benefits of the agreement by filing a support complaint in any of the actions which she instituted against appellant. Rather, appellee’s conduct reveals that she has consistently sought to enforce the terms of the agreement. Consequently, we find Knorr to be factually distinguishable from the case sub judice. Knorr also never addressed the question of whether a party’s conduct in filing a support complaint in one action would preclude that party from seeking to enforce the contract in future disputes. Knorr thus did not address the res judicata effect, if any, to be accorded to the parties’ conduct.

      . Prior to the 1988 amendments, agreements could only be enforced by an action in assumpsit or equity. See, e.g., Sonder v. Sonder, 378 Pa.Super. 474, 489, 549 A.2d 155, 162 (1988). However, the 1988 and 1990 amendments to the Divorce Code now expressly permit parties to enforce an agreement through the remedies provided in the Divorce Code, which include the court's powers of contempt and wage attachment. See 23 P.S. § 401.1 and 23 Pa.C.S.A. § 3105(a). Appellant neither challenged the procedure employed by appellee to enforce the agreement nor appealed from the trial court’s prior orders enforcing the agreement and awarding appellee counsel fees. Appellant similarly acquiesced in the trial court's action concerning Robert’s support petition. Thus, the propriety of these previous proceedings and the rulings therein are not properly before us for review.


author: WIEAND, Judge:

text:
    627 A.2d 1217
    COMMONWEALTH of Pennsylvania v. Dock M. BROWN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1993.
    Filed July 12, 1993.

      David Zuckerman, Asst. Public Defender, Philadelphia, for appellant.
    Karen L. Grigsby, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before WIEAND, CIRILLO and CERCONE, JJ.
   WIEAND, Judge:

Dock Brown was tried non-jury and was found guilty of criminal trespass and conspiracy. Post-trial motions were denied, and Brown was sentenced to serve concurrent terms of probation for a period of five (5) years for criminal trespass and for a period of two (2) years for conspiracy. On direct appeal from the judgment of sentence, Brown has raised the following issue:

Did not the trial court err in denying the motion to suppress appellant’s statement based on lack of probable cause to arrest where at the time appellant was stopped he was observed walking with a man who met the description of a burglary suspect, there was no information that a second suspect was involved in the offense, and the only other suspicious circumstances were that he was sweating, out of breath and without a coat?

After careful review, we affirm the judgment of sentence.

In reviewing the ruling of a suppression court, we determine whether its factual findings are supported by competent evidence. Where it is a defendant who has appealed, we will consider only the evidence presented by the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that the suppression court’s findings are supported by competent evidence, we are bound by such findings and may reverse only if the legal conclusions drawn from those facts are in error. See: Commonwealth v. Pestinikas, 421 Pa.Super. 371, 385, 617 A.2d 1339, 1349 (1992); Commonwealth v. Agnew, 411 Pa.Super. 63, 71, 600 A.2d 1265, 1269 (1991).

The evidence presented at appellant’s suppression hearing in this case established that, on December 13, 1990, at or about 2:05 a.m., Philadelphia Police Officer Joseph Mortimer had responded to a radio call pertaining to a silent burglar alarm which had been set off at the McDaniel Trucking Company, 237 East Church Lane. Arriving at the scene within three minutes thereafter, Mortimer shone a spotlight against the building and observed a black male at the top of a ladder which extended from the ground to a fire escape on the second floor of the building. Upon being caught in the spotlight, the black male slid down the ladder and fled around the side of the building. Mortimer broadcast via police radio the following description: a black male, wearing dark clothes and dark pants with a white stripe down the side.

Officer William Mock, who had also responded to the call regarding the silent alarm, heard the description of the suspect which had been broadcast by Officer Mortimer. Within two to three minutes, Mock observed a man matching that description walking in the 5400 block of Lena Street, just around the corner from the trucking company. Walking beside the described suspect was appellant. Officer Mock approached the two males and observed that neither was wearing an overcoat, despite cold weather, and that both men were sweating and breathing heavily. Therefore, Mock detained the two men and returned them to the trucking company, where Officer Mortimer identified one of the men, Warren Williams, as the man whom he had seen on the ladder. Both Williams and appellant were taken to police headquarters where, after waiving his Miranda rights, appellant told a detective that he and Williams had been attempting to burglarize the trucking company but had been scared off by police before they were able to gain entry to the building.

Appellant argues that, absent any indication that a second person had been involved in the attempted burglary at the trucking company, the police lacked probable cause to arrest him. Probable cause, he contends, was not established by his being in the company of the suspect being sought by police, by his not wearing an overcoat on a cold December night, or by his being out of breath and perspiring. Even if the police had a reasonable suspicion regarding his activities, so as to justify a brief Terry stop, he argues, they did not have probable cause to arrest him. He relies upon language in Commonwealth v. Kearney, 411 Pa.Super. 274, 601 A.2d 346 (1992), where the Superior Court observed:

When a person is suspected of presently committing a crime, a reasonable suspicion develops that his companion is also involved, even though the companion’s only suspicious action was being in the company of the suspect____ Thus, while there is not probable cause to arrest the companion, there is a sufficient basis for a Terry stop.

Id. 411 Pa.Super. at 279, 601 A.2d at 348 (citations omitted). Because probable cause was lacking to support his arrest, appellant argues, the subsequent confession while in police custody should have been suppressed as fruit of an unlawful arrest. We disagree with appellant’s analysis.

“To be constitutionally valid, a warrantless arrest must be supported by probable cause.” Commonwealth v. Anderson, 360 Pa.Super. 466, 470, 520 A.2d 1184, 1186 (1987). See also: Commonwealth v. Sanchez, 416 Pa.Super. 160, 168, 610 A.2d 1020, 1024 (1992); Commonwealth v. Lewis, 394 Pa.Super. 403, 408, 576 A.2d 63, 66 (1990). The Pennsylvania Supreme Court has declared that:

In this Commonwealth, the standard for evaluating whether probable cause exists is the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986), Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The bench mark of a warrant-less arrest is the existence of probable cause, namely, whether the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime. Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979).

Commonwealth v. Rodriguez, 526 Pa. 268, 272-273, 585 A.2d 988, 990 (1991). See also: Commonwealth v. Quiles, 422 Pa.Super. 153, 163, 619 A.2d 291, 298 (1993) (en banc); Commonwealth v. Agnew, supra 411 Pa.Super. at 74-75, 600 A.2d at 1271. “It is only the probability, and not a prima facie showing, of criminal activity that is the standard of probable cause for a warrantless arrest.” Commonwealth v. Quiles, supra 422 Pa.Super. at 163, 619 A.2d at 298. See also: Commonwealth v. Murray, 437 Pa. 326, 329, 263 A.2d 886, 888 (1970); Commonwealth v. Mallory, 418 Pa.Super. 614, 616, 614 A.2d 1174, 1176 (1992).

‘When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element ... We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might ... Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond-a-reasonable-doubt’ standard which we apply in determining guilt or innocence at trial. Commonwealth v. Devlin, 221 Pa.Super. 175, 289 A.2d 237 (1972).’

Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234 (1982), quoting Commonwealth v. Kazior, 269 Pa.Super. 518, 524, 410 A.2d 822, 824-825 (1979). See also: In the Interest of A.P., 421 Pa.Super. 141, 148, 617 A.2d 764, 769 (1992) (en banc); Commonwealth v. Sanchez, supra, 416 Pa.Super. at 169, 610 A.2d at 1025.

Under the circumstances present in the instant case, we do not hesitate to hold that the police had probable cause to believe that appellant had been involved in the attempted burglary at the McDaniel Trucking Company. A police officer came upon the scene of a burglary in progress and observed a suspect who was then attempting to gain entry to the trucking company building. Upon seeing the officer, the suspect fled. A short time later, the same suspect was apprehended, along with appellant, by a second officer only a short distance from the scene of the crime. Both men were sweating and out of breath, as if they had been running, and neither was wearing a coat despite the fact that it was a cold winter night. All of this activity occurred after 2:00 a.m. Thus, although police did not initially know that a second man had been involved in the crime, appellant’s presence with the suspect, a short distance from the scene of the crime, after 2:00 a.m., where both men appeared to have been running, was sufficient to permit a trained police officer to conclude reasonably that appellant probably had been involved in the crime. Because appellant’s arrest was supported by probable cause, his subsequent inculpatory statement was properly received in evidence during his trial.

The judgment of sentence is affirmed.

      . Brown was found not guilty of burglary, theft by unlawful taking, receiving stolen property and defiant trespass.

      . The Pennsylvania Supreme Court has held that the placing of suspects into a police vehicle for the purpose of transporting them to the scene of the crime is an arrest and, thus, must be supported by probable cause. See: Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982) cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983).