author: BROSKY, Judge:

text:
    448 A.2d 92
    COMMONWEALTH of Pennsylvania v. John DOBSON, Appellant.
    Superior Court of Pennsylvania.
    Argued April 29, 1981.
    Filed July 16, 1982.

      William G. Barbin, Assistant Public Defender, Ebensburg, for appellant.
    Raymond A. Zadzilko, Assistant District Attorney, Ebensburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.
   BROSKY, Judge:

On December 12, 1979, appellant, John Harold Dobson, was convicted by a jury of burglary and simple assault. Post-verdict motions were filed and subsequently dismissed. Dobson was sentenced to serve a term of imprisonment of two to four years for burglary and one to two years for simple assault. The sentences were to be served concurrently. Dobson then filed a petition to modify his sentence which was granted. Dobson was credited for time he had already served. This appeal followed.

Dobson complains that: (1) he should receive a new trial because he was wrongfully deprived of favorable tangble exculpatory evidence, (2) that there was insufficient evidence to convict him of simple assault, (3) that a new trial should be ordered because of the existence of after-discovered exculpatory evidence. We are not persuaded that any of the complained errors require a reversal of the decision of the trial court.

On September 1, 1979, Dobson was arrested and charged with the crimes of burglary and aggravated assault. Those charges arose out of a criminal incident at the McKees Market, a General Store, in Fallen Timber, Cambria County. Early that morning, at about 1 a. m., Robert McKee was awakened when he heard sounds in his store. Mr. McKee frequently slept in a backroom at the store though he and his family resided elsewhere. Mr. McKee ventured from his room into the store area, carrying a pistol with him. Mr. McKee then saw several persons in his store one of whom, Dobson, was approaching him. Apparently, Mr. McKee told Dobson not to come any closer to him and when Dobson failed to stop moving, McKee shot him. Mr. McKee testified that Dobson had a screwdriver in his hand as he approached him. Dobson claims he never had a screwdriver in his hands as he approached Mr. McKee and that what Mr. McKee probably thought was a screwdriver was merely the reflection off Dobson’s watchband. It is clear from the record that there was poor lighting in the store at the time of the encounter.

After the preliminary hearing and arraignment, Dobson’s counsel filed a request pursuant to Pennsylvania Rule of Criminal Procedure 305 for production and or disclosure of favorable tangible evidence. The Commonwealth returned the request indicating it had no such evidence. The record indicates that the Commonwealth possessed Dobson’s watch throughout the trial and did not at any time produce it for use by Dobson.

Rule 305(A) provides for informal pre-trial discovery in criminal proceedings. Dobson’s counsel requested that the Commonwealth produce all tangible exculpatory evidence pursuant to 305(B)(1)(a), which indicates that it is mandatory that the Commonwealth present to the defendant any “evidence favorable to the accused which is material either to guilt or to punishment, . . . ”; and 305(B)(1)(f), which requires the Commonwealth to produce for the defendant “any tangible objects ... or other tangible evidence; ...” provided that evidence is material to the defendant’s case.

We note that the initial request made by Dobson’s counsel under Rule 305 was a general one seeking all exculpatory evidence. In Commonwealth v. Rose, 483 Pa. 382, 396-397, 396 A.2d 1221, 1228 (1979), our Supreme Court said:

Agurs, dealt with a third situation—where a general request for “Brady materials” is made. After stating that such a general request puts the prosecutor on no better notice than had no request been made at all, the Court went on to state: “If there is a duty to respond to a general request ..., it must arise from the obvious exculpatory character of certain evidence in the hands of the prosecutor.” Agurs, supra [427 U.S.] at 107, 96 S.Ct. at 2399. Thus, where no request is made or where only a general request is made, the Commonwealth has the burden of providing the defense with evidence which is material. This burden arises because of the obviously exculpatory nature of the evidence. See United States ex rel. Marzeno v. Gengler, 574 F.2d 730 (3d Cir. 1978). However, “[t]he mere possibility that an item of undisclosed information might have helped the defense or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” Agurs, supra, 427 U.S. at 110-1, 96 S.Ct. at 2400.

In cases where a general request or no request is made,

“[t]he proper standard or materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record.
“If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.” [Footnotes omitted.] [Emphasis added.] Agurs, supra at 113-4, 96 S.Ct. at 2401-2.

See also: Commonwealth v. Bridge, 495 Pa. 568, 435 A.2d 151 (1981). It is significant that no specific request was made for the production of the watch at any time, not even after defense testimony was entered concerning the possibility that the watch may have been mistaken for a screwdriver.

We are not persuaded that the watch ever became evidence which was sufficiently material as to require the Commonwealth to produce it at trial. First, the record indicates that Dobson did in fact have a •screwdriver in his possession at the time of the criminal incident. Second, while Mr. McKee was unable to state whether he saw Dobson place the screwdriver in his back pocket after the shooting took place, which is where the screwdriver was found by police, we believe the trial court would have been correct in finding that Dobson did in fact so place the screwdriver. We believe this is a much more reasonable inference than that which Dobson proposed, that Mr. McKee confused a watch for a screwdriver. In any event, the defense was able to argue that such a misapprehension of objects was possible through its testimony. We are unable to hold, under these circumstances, that the watch constituted material evidence. Hence, the Commonwealth was not under an obligation to produce it pursuant to Rule 305.

Next, Dobson remonstrates that there was insufficient evidence to convict him of simple assault. Our scope of review in appeals challenging the sufficiency of the evidence is well established. In Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981) our Supreme Court said:

To evaluate the sufficiency of evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981).

The relevant portion of 18 Pa.C.S.A. § 2701 defines simple assault as:

(a) Offense defined.—A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;

At trial, Dobson and his codefendant, Gary White, testified that the screwdriver was in Dobson’s back pocket during the entire time Dobson was inside the store. Dobson’s other codefendant stated that he saw nothing in Dobson’s hands just before the shooting. Dobson, as we have said earlier, stated that he surmised that what McKee saw was his silver wristwatch. Mr. McKee testified in the following manner:

Q. Did you find him?
A. I did.
Q. What was he doing at that time?
A. He was going clear to the extreme back end of the store.
Q. Did you say anything to him?
A. I ordered him back over with the other two.
Q. And what did he do?
A. He came back to the divider and kept on coming. Q. Coming where?
A. Towards me.
Q. What did you do at that time?
A. He was carrying a screwdriver in his right hand, down along the side of his leg.

When Dobson was approximately 10 feet away from Mr. McKee, Mr. McKee shot him. Mr. McKee stated:

Q. Okay. Now, you shot him. When you shot him, did you see anything fall out of his hand?
A. No.
Q. You saw nothing fall out of his hand. Did you see him stick anything into his back pocket?
A. No, but turned from the right side, went back, and went through the aisle.
Q. But you shot him and you saw nothing fall out of his hands, and you didn’t see him stick anything into his pocket?
A. No.
Mr. McKee stated during cross-examination:
Q. Could it have been something else in his hand? A. It could have been a gun.
Q. It- could have been anything, right? How about a wristwatch. Could it have been a wristwatch?
A. No way.

While it is clear that Mr. McKee was very upset at the time of the incident and admitted to being shaken, he consistently testified that he was threatened by Dobson. His testimony was never impeached during defense counsel’s interrogation in which counsel attempted to have Mr. McKee state that it could have been a wristwatch which he saw. Accordingly, the dispute in the testimony was substantially qne of credibility. We will not disturb the factfinder determination as to credibility on appeal. Such a determination is solely within the province of the trier of fact. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Edney, 294 Pa.Super. 67, 439 A.2d 752 (1982).

Accordingly, we find the evidence was sufficient to convict Dobson of simple assault. We are satisfied that the jury’s verdict of simple assault was consistent with and complied with the law. Cf: Commonwealth v. Love, 248 Pa.Super. 387, 375 A.2d 151 (1977).

Dobson’s final contention is that a new trial on the simple assault charge should be ordered because the existence of after-discovered exculpatory evidence. In Commonwealth v. Borelli, 288 Pa.Super. 319, 322, 431 A.2d 1067, 1069 (1981) we said:

After-discovered evidence is a basis for a new trial if it “(1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such a nature and character that a different verdict will likely result if a new trial is granted.” Commonwealth v. Valderrama, 479 Pa. 500, 505, 388 A.2d 1042, 1045 (1978); Commonwealth v. Mosteller, 446 Pa. 83, 88, 284 A.2d 786, 788 (1971).

We hold that a new trial is not required. The existence of the watch would not impeach the testimony of Mr. McKee. There is nothing so inconsistent with the fact that Dobson was wearing a watch with a metal watchband on his right wrist and carrying a screwdriver in his right hand that a different verdict is likely. We believe that the introduction of the watch is very unlikely to result in a different verdict.

Accordingly, having determined that the trial court acted properly, we affirm the judgment of sentence of the court below.

      . Dobson poses an additional issue contending that the jury’s verdict of simple assault was inconsistent and contrary to the law. We will address this issue in our discussion of the sufficiency of the evidence claim.

      . Dobson asserts several issues which are not properly before the court. He complains that the trial court erred in refusing to sustain his demurrer to the Commonwealth’s case insofar as it involved the aggravated assault charge. Dobson claims also that the trial court erred in refusing to sustain his motion for a verdict of not guilty of aggravated assault. Dobson was not convicted of aggravated assault. Therefore, these issues are moot. We will not review a moot issue on appeal. See generally: Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976).
      Dobson contends further that prejudicial remarks made by the prosecution made it impossible for him to receive a fair trial. These alleged statements were made during the Commonwealth’s closing remarks to the jury. We need not reach the merits of this issue because, as Dobson states in his brief: “Appellant’s counsel did not object to such statement, by the Commonwealth’s attorney, ...” (Appellant’s brief page 30.) Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). We note, also, that had trial counsel properly objected, we would consider the issue waived because of the absence a record of closing arguments and therefore the absence of any reference to that record. Commonwealth v. Dozier, 294 Pa.Super. 249, 255 n.2, 439 A.2d 1185, 1189 n.2 (1982).

      . Rule 305 is the procedural rule enacted in response to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, in particular, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

      . Title 18 Pa.C.S.A. § 2701(a)(3) states that a person is guilty of simple assault if he “attempts by physical menace to put another in fear of imminent serious bodily injury.” The lower court did not charge the jury on this subsection. Therefore, we must limit our review to determine whether there was sufficient evidence to prove that Dobson was guilty beyond a reasonable doubt pursuant to 18 Pa.C.S.A. § 2701(a)(1).


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    448 A.2d 97
    COMMONWEALTH of Pennsylvania v. W. P., Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 19, 1981.
    Filed July 16, 1982.

      Joseph M. Casey, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   BECK, Judge:

Appellant appeals an order of the Family Division of the Court of Common Pleas of Philadelphia County which adjudged him delinquent on charges of aggravated assault and conspiracy. We affirm.

At approximately nine o’clock on the evening of October 20, 1977, the complainant and a companion were walking toward the intersection of two streets when they were addressed by a black teenager. Someone unseen by the complainant shouted, “Get them white boys,” whereupon the black teenager placed himself in the path of the complainant and his companion. Then a group of approximately twenty other black male teenagers approached from a location behind the complainant, encircled the complainant and his companion, and together with the first black youth, began hitting and kicking the complainant and his companion. After an estimated ten to fifteen minutes the complainant and his companion escaped from their attackers and hailed a passing motorist who drove them to a nearby hospital.

At the hospital the complainant was soon joined by a police officer who ascertained that the complainant and his companion had been attacked at a particular street intersection by a group of light-skinned and dark-skinned black youths. Accompanied by a fellow policeman, the officer proceeded to the scene of the attack and found Appellant, Appellant’s brother, and another black man, all three of whom the officers transported to the hospital for a show-up. According to the complainant’s trial testimony, at the hospital show-up the complainant identified all three persons as participants in the attack.

Appellant was arrested and charged with aggravated and simple assault, possession of an instrument of crime, possession of an offensive weapon, and conspiracy. Through his counsel, Appellant filed demurrers and a motion to suppress the out-of-court hospital identification. Following a hearing, the trial court sustained Appellant’s motion to suppress the hospital identification and Appellant’s demurrers to the charges of simple assault, possession of an instrument of crime, and possession of an offensive weapon.

After a trial on the merits, Appellant was adjudged delinquent on the remaining charges of aggravated assault and conspiracy. Subsequently, Appellant’s post-verdict motions were denied, and Appellant was placed on probation conditioned upon his attending Day Treatment Center. This is a direct appeal from the judgment of sentence.

The sole issue on appeal is whether the complainant’s in-court identification of Appellant at the suppression hearing was properly admitted into evidence as arising from a source independent of the unlawful hospital show-up identification.

In suppression cases the Commonwealth has the burden of establishing by clear and convincing evidence that, “considering the totality of the circumstances, the in-court identification had an independent origin sufficiently distinguishable from the illegal encounter so as to be purged of the primary taint.” Commonwealth v. Thomas, 278 Pa.Super.Ct. 39, 44, 419 A.2d 1344, 1347 (1980); Commonwealth v. Smith, 290 Pa.Super.Ct. 33, 434 A.2d 115 (1981). Where the Commonwealth has prevailed below, this Court’s scope of review consists of determining

whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Hunt, 280 Pa.Super.Ct. 205, 207-08, 421 A.2d 684, 685 (1980); Commonwealth v. Haggerty, 282 Pa. Super.Ct. 369, 422 A.2d 1336 (1980).

The three components of an in-court identification were analyzed in United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537 (1980) (quoted approvingly in Commonwealth v. Miller, 279 Pa.Super.Ct. 254, 261-63, 420 A.2d 1129, 1132-33 (1980), allocatur denied, Oct. 30, 1980).

A victim’s in-court identification of the accused has three distinct elements. First, the victim is present ... to testify as to what transpired between [the victim] and the offender, and to identify the defendant as the culprit. Second, the victim possesses knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from . . . observations of him at the time of the crime. And third, the defendant is also physically present in the courtroom, so that the victim can observe him and compare his appearance to that of the offender.

I.

In the instant case the complainant’s identity was known to the police before the unlawful hospital show-up and Appellant’s ensuing arrest. Thus,

the . . . victim’s presence in the courtroom . . . was surely not the product of any police misconduct .... [T]his is not a case in which the witness’ identity was discovered or [the witness’] cooperation secured only as a result of an unlawful . . . arrest of the accused. Here the victim’s identity was known . . . before there was any official misconduct, and [the victim’s] presence in court is thus not traceable to any Fourth Amendment violation.

United States v. Crews, 445 U.S. at 471-72, 100 S.Ct. at 1249-1250 (footnote deleted).

II.

“[T]he suggestiveness of a courtroom identification is only one factor to be considered in determining the reliability of the identification.” Commonwealth v. Floyd, 494 Pa. 537, 542-43, 431 A.2d 984, 987 (1981). A victim’s in-court identification of an accused is admissible into evidence if there are sufficient guarantees that the identification resulted from the victim’s memory of the actual attack by the assailant, rather than the victim’s memory of seeing the accused at an illegal show-up, lineup, etc.

The factors to be considered in determining whether the in-court identification testimony was purged of any primary illegality are: (1) the prior opportunity [of the victim] to observe the criminal act; (2) any discrepancy between any pre-confrontation description and [the accused’s] actual appearance; (3) any identification of anyone other than [the accused]; (4) any failure to identify [the accused]; (5) the lapse of time between the criminal act and the confrontation; (6) [the victim’s] degree of attention; and (7) the degree of certainty in identifying [the accused].

Commonwealth v. Townsend, 280 Pa.Super.Ct. 155, 159, 421 A.2d 452, 454 (1980); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

At the suppression hearing the arresting officer testified that when he met the complainant in the hospital after the attack, the complainant described his assailants as “approximately fifteen to twenty years of age,” “some light-skinned [black] males and some dark-skinned males.” The officer also stated that at the hospital show-up conducted twenty to twenty-five minutes after the attack, the complainant “definitely identified” as his assailants two of the three men in the show-up but “wasn’t sure of” Appellant. However, the complainant asserted at the hearing that during the hospital show-up he had positively identified all three men as participants in the crime.

The complainant further testified that because the attack lasted for a period of ten to fifteen minutes, he had ample opportunity to observe his assailants. The complainant explained that although the attack began at approximately 9:00 p. m., his assailants were plainly visible because the scene of the attack was illuminated by street lights and the weather was clear. On cross-examination the complainant was asked, “[I]f they brought all twenty of the [assailants] into the hospital room, could you identify all twenty of them?” The complainant replied, “Sure .... I got a good look at them.”

Based upon [the victim’s] observations at the time of the [crime], the victim constructed a mental image of [the] assailant. [In court the victim] retrieved the mnemonic representation, compared it to the figure of the defendant, and positively identified him .... No part of this process was affected by [the] illegal arrest.
. . . [T]he victim’s capacity to identify [the] assailant in court neither resulted from nor was biased by the unlawful police conduct committed . . . after [the victim] had developed that capacity.

United States v. Crews, 445 U.S. at 472-73, 100 S.Ct. at 1250 (footnotes deleted).

III.

Finally, Appellant

cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest .... [Appellant] is not himself a suppressible ‘fruit [of the poisonous tree],’ and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct.

Id. at 474, 100 S.Ct. at 1251 (citations omitted) (footnote deleted).

Accordingly, we affirm the trial court’s holding that under the totality of the circumstances in this case, “the influences for a misidentification were [not] so great as to render [the complainant’s] in-court identification offensive to the fairness mandated by due process.” Commonwealth v. Floyd, 494 Pa. at 543, 431 A.2d at 987.

      . The second victim, the complainant’s companion, was unconscious when the police arrived at the hospital and thus was unable to give a statement.

      . At trial the complainant asserted that he was able to identify Appellant, as well as two other men, during the hospital show-up. However, the arresting police officer testified at trial that the complainant did not positively identify Appellant at the show-up although he did “definitely identify” two other men.

      . The suppression hearing and trial were both held on November 30, 1977, with the suppression hearing marking the commencement of the trial.


author: PER CURIAM:

text:
    448 A.2d 100
    William A. HOZA, Appellant, v. Thomas E. HOZA and Thomas Turnbull.
    Superior Court of Pennsylvania.
    Submitted Oct. 27, 1981.
    Filed July 16, 1982.

      James J. Ahearn, Ligonier, for appellant.
    David B. Freeman, Ligonier, for appellees.
    Before SPAETH, HESTER and WATKINS, JJ.
   PER CURIAM:

Presently before the court is the appeal of William A. Hoza from the order of the lower court, dated September 3, 1980, wherein the preliminary objections of appellee, Thomas Turnbull, were sustained and appellant’s complaint against Turnbull dismissed.

For the reason that we feel that the lower court abused its discretion in failing to grant appellant leave to amend his complaint, we reverse and remand.

On October 12, 1979, appellant and Thomas E. Hoza entered into an agreement which provided:

This agreement made the 12th day of October, 1979 by and between Thomas E. Hoza and William A. Hoza.
WHEREAS the parties hereto previously entered into an agreement dated August 13, 1971 concerning their respective interest in and rights with respect to a bar business known as Hoza’s Bar in Ligonier, Pennsylvania and:
WHEREAS the parties now contemplate the sale of that business and wish to establish and determine their respective rights to the proceeds of that contemplated sale:
IT IS THEREFORE AGREED AS FOLLOWS:
1. Thomas E. Hoza shall have the right to sell, transfer and assign the liquor license with respect to the operation of Hoza’s Bar now held in his name, and the equipment, inventory and other assets of that bar business, upon terms he considers reasonable and appropriate provided however that such sale results in net cash proceeds of at least $15,000 and provided Thomas E. Hoza keeps William A. Hoza fully informed of all significant developments concerning sales negotiations, particularly the time and place of anticipated closing, and the agreed selling price.
2. Thomas E. Hoza shall, immediately upon the closing of the sale of the bar business, pay to William A. Hoza the sum of $15,000 which William A. Hoza shall accept as payment in full for all of his right and interest in said bar business whether resulting from the terms of the agreement of August 13, 1971, from the terms of this agreement or otherwise. Thomas E. Hoza shall have exclusive right to all sales proceeds in excess of $15,000.
3. Should Thomas E. Hoza fail to discharge the obligations imposed upon him by the terms of this agreement, he will be obligated to pay William A. Hoza the additional sum of $5,000 as liquidated damages, and not as a penalty, plus the reasonable attorney’s fees and other costs William A. Hoza may becomé obligated to incur in order to enforce the terms of this agreement.
IN WITNESS WHEREOF, the parties hereto do execute these presents
/s/ Thomas E. Hoza
Thomas E. Hoza
/s/ William A. Hoza
William A. Hoza

On February 11, 1980, Thomas E. Hoza entered into an agreement for the sale of Hoza’s Bar to the appellee, Thomas Turnbull, with the agreed purchase price allegedly placed in escrow. Between that date and the closing which was held on March 27, 1980, appellant sent to the appellee, through his counsel, a copy of the October 12, 1979 Agreement. Despite receipt of a copy of said Agreement, on March 27, 1980, following liquor license transfer approval by the Commonwealth, appellee released all previously es-crowed monies to his vendor, Thomas E. Hoza.

On March 31, 1980 (four days following the closing of the sale of Hoza’s Bar), appellant filed the instant action in assumpsit against Thomas E. Hoza and the appellee, wherein appellant alleges:

8. Plaintiff has been informed that defendant, THOMAS TURNBULL has signed an agreement to purchase HOZA’S BAR, the subject of the Agreement, and that said defendant, THOMAS TURNBULL plans to conclude the purchase of HOZA’S BAR without acting so as to protect the interest of the plaintiff herein, despite the fact that he has received a copy of the Agreement, in the fixtures and equipment of said business or to otherwise assure the performance by THOMAS E. HOZA of the obligations assumed by him pursuant to the Agreement.
WHEREFORE, plaintiff claims that defendant, THOMAS E. HOZA is indebted to him for the sum of $17,500 with interest thereon at the legal rate plus reasonable attorney fees and court costs, for which plaintiff demands judgment against defendant, THOMAS E. HOZA; and,
WHEREFORE, plaintiff demands judgment ordering defendant, THOMAS TURNBULL to withhold from payment at the contemplated closing of the sale of HOZA’S BAR the sum of $17,500 to assure payment of the monies owing to plaintiff and to place such monies in an escrow account pending final disposition of the present complaint.

DATED:

Following service, appellee filed two preliminary objections to appellant’s complaint; a demurrer, alleging that appellant failed to state the cause of action upon which relief may be granted; and second, a motion to strike because of lack of conformity to law inasmuch as appellant’s complaint is identified as “in assumpsit” whereas appellant’s request sought injunctive or equitable relief.

Although concluding that appellee’s motion to strike was rendered moot by the fact that the escrowed funds had already been distributed, the court in what can only be characterized as obiter dictum, observed that appellee was correct in asserting that a party cannot obtain “equitable relief” (the only type of relief sought by the appellant against appellee) through the vehicle of a complaint in assumpsit. Thereafter, the lower court sustained appellee’s demurrer and dismissed appellant’s complaint against the appellee, notwithstanding its observation that:

“Interestingly enough, the (appellant’s) complaint seeks nothing more from the (appellee) Turnbull, other than the injunctive relief. The complaint prays for money damages from the defendant, Thomas E. Hoza, and sought to enjoin Thomas Turnbull from distributing the escrowed funds. Having determined that the prayer for injunctive relief has been improperly brought and should be stricken from the complaint, the only claim for damages left in the complaint is that against the defendant, Thomas E. Hoza, upon which a default judgment has already been entered. Since the complaint makes no claim for money damages against the (appellee), Thomas Turnbull, the (appellee) Turnbull’s demurrer must be sustained, even though the (appellee), Turnbull, may have distributed the funds held in escrow in the face of an equitable lien on the part of the (appellant). (Emphasis added).

Despite our awareness of appellant’s election not to avail himself of Pa.R.C.P. 1028(c) following service of appellee’s preliminary objections, we are still compelled to conclude that the lower court committed an abuse of discretion by its actions in denying appellant leave to amend his complaint against the appellee.

Pa.R.C.P. 126 provides:

Rule 126. Liberal Construction and Application of Rules The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.
Adopted May 1,1939, effective Nov. 6,1939; amended and effective April 18, 1975.

We have on numerous occasions found that the right to amend a pleading should not be withheld when there is a reasonable possibility that amendment can be accomplished. In Harkins v. Zamichieli, 266 Pa.Super. 401, 405 A.2d 495, 499 (1979), we concluded that even when a complaint is deficient, amendment and not dismissal, is the appropriate remedy. If a demurrer is sustained, “the right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully”. Otto v. American Mut. Ins. Co., 482 Pa. 202, 393 A.2d 450 (1978), vacating 241 Super.Ct. 423, 361 A.2d 815. See also 2 Goodrich Amram, Section 1028(e).

Despite appellant’s error in improperly designating the nature or type of action brought and his failure alternatively to request monetary damages against the appellee, we are constrained to conclude that no prejudice inured to the appellee as a result of either procedural defect.

The gravamen of appellant’s complaint against the appellee is that the appellee breached a duty owing him (the appellant) when he (the appellee) distributed the sale proceeds previously escrowed directly to Thomas E. Hoza.

Although inartfully pleaded, (to a great extent we surmise because appellant did not know that the closing took place four (4) days prior to his filing of this suit) we observe that there is a reasonable possibility that, if permitted to amend, appellant may state a cause of action in equity against the appellee upon which relief may be granted.

We believe that the appellant is entitled to amend his complaint in an effort to seek the imposition of an equitable lien (or for that matter to seek any other remedy he deems appropriate) against the appellee based upon the set of operative facts originally pleaded.

To establish a right to an equitable lien, the evidence “. . . must be clear, precise and indubitable as to the intention of the parties.” Western Pennsylvania National Bank v. Bradish, 194 Pa.Super. 126, 166 A.2d 104, 107 (1960). In order for an equitable lien to arise, there must be an obligation owing by one person to another, a res to which that obligation attaches, and an intent by all parties that the property serve as security for the payment of the obligation. The potential lienor must satisfy the Chancellor that in equity and good conscience he is entitled to a lien.

Finally, the applicability of 47 P.S. § 4-404 and Title 40 Pa.Code § 7.2; Pa. Liquor Control Board Regulations, dealing with the distribution of escrowed funds used for the purchase of a liquor license may be raised by the appellee as an (affirmative) defense. However, same is not a demurrable issue and was raised prematurely and improperly evaluated and considered by the court below.

Order reversed and ease remanded to the lower court with instructions to permit appellant to amend its complaint.

Order reversed and remanded.

SPAETH, J., concurs in the result.

      . Thereafter appellant filed an application for reconsideration, which was granted by the court. However, on January 13, 1981, the lower court en banc again denied appellant leave to amend his complaint.

      . Appellant obtained a default judgment against Thomas E. Hoza. The said Thomas E. Hoza is not a party to the instant appeal.


text:
    448 A.2d 535
    COMMONWEALTH of Pennsylvania v. Barry A. BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 13, 1980.
    Filed April 12, 1982.
    Reargument En Banc Denied Aug. 19, 1982.
    Petition for Allowance of Appeal Denied Oct. 12, 1982.

      Roy Davis, Assistant Public Defender, Media, for appellant.
    Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.
   BROSKY, Judge:

On July 30, 1977, appellant, Barry Brown, was arrested for the armed robbery of a Hardy’s fast-food restaurant which occurred the previous night. Five of the restaurant’s employees, including the manager, observed appellant during the robbery. Approximately ten minutes after the robbery, two of the employees, Matthew and Lisa Kennedy, were shown photographs by the police in an attempt to identify the robber. The other employees were shown photographs the next day. All identified appellant from the photographs shown them. Thereafter, appellant was arrested and charged with robbery, criminal attempt, terroristic threats, theft by unlawful taking, receiving stolen property and crimes committed with firearms. On October 6, 1977, a suppression hearing was held for the purpose of determining the admissibility at trial of the photographic identification. The Commonwealth produced Officer Robert Adams, the officer who had arranged the photographic array, who testified in detail as to the procedure used. Following Officer Adams’ testimony, the District Attorney called Matthew and Lisa Kennedy to the stand. An exchange then took place between the court and the District Attorney, following which the District Attorney moved to dismiss appellant’s petition for suppression. The court sustained the motion, stating that the evidence presented indicated that the procedure used was careful and fair and “exceptionally good.”

On November 21, 1977, appellant’s jury- trial ended in a hung jury. At the second trial on March 15, 1978, he was convicted of robbery. On March 22, 1978, appellant made timely motions for new trial and in arrest of judgment. Following denial of these motions, appellant took this appeal. On appeal, appellant raises the single issue of whether it was error for the suppression court not to require the identification witnesses to testify about the photographic identification procedure. Appellant contends that the Commonwealth did not meet its burden of proving admissibility by offering only the testimony of Officer Adams. He argues that he was deprived of his opportunity to examine the witnesses with regard to the manner in which the photographs were shown to them and what, if anything, was said to them by Officer Adams. Since the defense presented by appellant at trial was an alibi defense, he argues that the identification of him by the witnesses in question was critical to his defense.

Our standard of review here is limited to determining whether the findings of the suppression court are supported by the record and whether the inferences and legal conclusions based thereon are correct. Commonwealth v. Simmons, 482 Pa. 496, 394 A.2d 431 (1978).

However, the suppression judge did not make findings of fact and conclusions of law here with regard to whether the witnesses should have been required to testify. It appears from the judge’s remarks that he was satisfied with the officer’s testimony and felt that it was sufficient to show that the procedure used was not unduly suggestive.

Under Pa.R.Crim.P. 323(h), the Commonwealth has the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant’s rights. There can be no doubt that, at the very least, the Commonwealth must produce the photographic display at the suppression hearing. Commonwealth v. Hodge, 246 Pa.Super. 71, 369 A.2d 815 (1977); Commonwealth v. Jackson, 227 Pa.Super. 1, 323 A.2d 799 (1974). Here, the photographs were produced, and defense counsel was given an opportunity to examine them.

In Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978), appellant moved to suppress an “on the scene” identification made by the victim, on the ground that by not calling the victim to testify at the suppression hearing, the Commonwealth had failed to meet its burden of establishing that the identification was not unduly suggestive. The Commonwealth argued that it had met its burden by only having the police describe the identification procedure. We rejected the Commonwealth’s contention, holding that at a hearing on a motion to suppress an “on the scene” identification, it is essential that the identifying witness testify.

In order to determine whether the suggestiveness of an “on the scene” identification is offset by its reliability, the suppression hearing judge must consider not only the procedure used by the police but also whether at the time of the crime the witness saw the criminal with sufficient clarity and for a sufficient length of time to have been able to make an identification. The best, if not the only source of this information is the witness. The hearing judge may also have to consider other facts peculiarly within the knowledge of the witness, as for example whether the witness for some reason felt pressured into making the identification, how the witness perceived the identification procedure, and what was the witness’ physical and mental condition. Thus, by failing to produce the witness, the Commonwealth deprives the hearing judge of essential information. Moreover, the failure to produce the witness deprives the defendant of an opportunity to test the identification by cross-examination. The witness’ response to cross-examination may be essential to the hearing judge in deciding what identification procedure the police adopted, how the procedure affected the witness, and also what was the witness’ opportunity and ability to make an identification. After seeing the witness under cross-examination, the judge may decide that the witness could not make a reliable identification, or that the witness was in fact convinced that the defendant was the criminal only because the police presented him.

Id., 262 Pa.Super. at 286-287, 396 A.2d at 757-758. [Emphasis added.]

In Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738, cert. denied 400 U.S. 919, 91 S.Ct. 173, 27 L.Ed.2d 159 (1970), our Supreme Court, in holding that appellant’s right to counsel at the pretrial identifications had been violated, cited United States v. Wade, 388 U.S. 218, 219-230, 87 S.Ct. 1926, 1933-1934, 18 L.Ed.2d 1149 (1967), for the proposition that “[a]s is the case with secret interrogations, there is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations.” Id. 439 Pa. at 208, 266 A.2d at 739. [Emphasis added in Commonwealth v. Whiting.]

The court also cited United States v. Zeiler, 427 F.2d 1305, 1307 (3d Cir. 1970), wherein it was stated that “[t]he dangers of suggestion inherent in a corporeal line up identification are certainly as prevalent in a photographic identification.” Id. 439 Pa. at 209, 266 A.2d at 740. We agree.

Although the suppression judge here expressed his satisfaction with the procedure used by the police, he made such determination based upon incomplete evidence. As Lee points out, it is not simply the procedure itself that is at issue, but the witnesses’ perception of the procedure. If the witnesses here had been required to testify, their version of the photographic identification might have differed materially from the police officer’s account. By only considering the police officer’s testimony, the suppression judge could only evaluate such factors as whether the witnesses were shown a sufficient number of photographs, and whether the photographs were chosen to closely resemble appellant. What he could not, and did not, evaluate was the manner in which the photographs were displayed to the witnesses; that is, whether anything was said to them by Officer Adams at the time of the identification, how many times appellant’s picture was shown to them, and whether they were given the impression that appellant was, in fact, the perpetrator.

In addition, by not requiring the witnesses to testify, both the hearing judge and the appellant were denied the opportunity to benefit from cross-examination. Commonwealth v. Lee, supra.

For these reasons, we hold that the suppression court committed error in not requiring the identification witnesses to testify and concomitantly that, as a result of this error the Commonwealth did not carry its burden of proof at the suppression hearing as established by Pa.R.Crim.P. 323(h).

Accordingly, we hereby remand to the court below with directions that it conduct a new suppression hearing. If, after a new hearing, it determines that the evidence concerned should not be suppressed, then the judgment of sentence shall stand affirmed. If, on the other hand, it determines that the evidence concerned or a part of it shall be suppressed, then the judgment shall be vacated and a new trial be granted.

      . Initially, there is a question as to whether appellant has preserved this issue for our review, since it was not specifically set forth in appellant’s post-trial motions as required by Pa.R.Crim.P. 1123(a). However, appellant’s counsel did file a “Brief In Support Of Motions In Arrest Of Judgment And/Or Motions For New Trial” in which the issue was raised and discussed, and the lower court considered the issue in its opinion. In Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979), our Supreme Court held that under these circumstances, the issue is preserved for review. While Gravely went on to hold that sixty days after the date of its July 6, 1979 filing, only those issues included in post-verdict motions will be considered preserved for review, in the instant case, the post-verdict motions were filed and denied prior to that date. Accordingly, we find that the above issue is preserved for review. Commonwealth v. Golden, 277 Pa.Super. 180, 419 A.2d 721 (1980); Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980).

      . For an analogous case concerning introduction of an affidavit without supporting testimony of real, live witnesses, who would be subject to cross-examination, in which we held that the Commonwealth had not met its burden of proof at the suppression hearing, see Commonwealth v. Ryan, 268 Pa.Super. 259, 407 A.2d 1345 (1979).


author: POPOVICH, Judge: BROSKY, Judge,

text:
    448 A.2d 538
    COMMONWEALTH of Pennsylvania, Appellant, v. Roy L. HAMLIN, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1982.
    Filed May 28, 1982.
    Reargument En Banc Denied Aug. 17, 1982.

      Stella L. Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Robert L. Simmons, Pittsburgh, for appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from the grant of appellee’s, Roy L. Hamlin’s, Motion to Suppress on April 21, 1981, by the Court of Common Pleas of Allegheny County. We reverse and remand.

The facts, as garnered from the record, consist of the following: About 10:00 A.M. on September 5, 1980, Lieutenant Charles E. Coughlin, a City of McKeesport police officer, drafted an application for a search of the appellee’s residence. At 1:30 P.M., the application was taken to the District Magistrate. The Magistrate approved the warrant, which authorized the affiant to search the premises described “as soon as practicable but in no event later than 8:00 A.M. . .. Sept. 8, 1980.” After securing the warrant, Lt. Coughlin informed the search team that it would be executed at 7:00 A.M. the next morning, September 6th. At the scheduled time, the police met at the station and then made their way to the appellee’s premises, arriving at the location about 7:45 A.M. At first, Lt. Coughlin knocked on a set of storm doors on the exterior portion of the two-story apartment building and identified himself. Upon receiving no response, the officer entered a vestibule area and knocked on another door, again giving his identity. Still, there was no answer. After waiting for a period of time, Lt. Coughlin opened the main door to the building and went to appellee’s door, which was the first one on the right. He knocked 10 or 12 times, and even kicked on the bottom of the door, while “holler[ing] ‘Police, police, we have a search warrant.’ ” (RR. 23a) Lt. Coughlin received no answer, yet he heard voices inside the apartment. The officer, for the next three minutes, continued to knock, all the while announcing his identity and purpose. When his efforts to obtain access to the apartment proved fruitless, he utilized a key secured from the landlord to gain entry. Once inside, the police observed the appellee and a Ms. Dreker (a co-defendant) in the room. Lt. Coughlin identified himself and gave the appellee a copy of the warrant. A search of the premises produced a quantity of cocaine and resulted in the occupants being arrested.

A suppression hearing was held in the instant case. At that time, Lt. Coughlin recounted how the search warrant was prepared on September 5, 1980 and issued by the Magistrate that same day, around 2:00 P.M. However, the defense pointed out that the face of the warrant indicated to the contrary, i.e., that it was issued on the 6th day of September, 1980, at 8:00 A.M. To clarify the matter, the Magistrate testified that he erred when filling in the spaces provided for on the document as to the date and time the warrant was issued. The witness attributed this misfeasance to the fact that when the police informed him that “they were going to search the place the next morning at eight o’clock. . . . [he] made the mistake. [He] put the 6th day, eight o’clock, when he signed it[,]” (RR. 42a), instead of September 5th at 2:00 P.M.

The suppression court disbelieved the Magistrate’s version that the error was the product of “an honest mistake.” Instead, the court found “that the warrant was deliberately post-dated rather than misdated.” Consequently, all evidence seized pursuant to the invalidly issued warrant was suppressed. This appeal followed.

The Commonwealth asserts that the court abused its discretion in concluding from the evidence adduced at the suppression hearing that the date which the Magistrate noted on the search warrant was a purposeful act. Furthermore, the Commonwealth contends that appellee suffered no violation of his Fourth Amendment rights as a result of the misdating. We agree.

As was stated in Commonwealth v. Johnson, 467 Pa. 146, 151-52, 354 A.2d 886, 889 (1976):

“In reviewing th[e] ruling [of a suppression court,] our initial task is to determine whether the factual findings are supported by the record. ‘In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’ Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975). If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may only reverse if the legal conclusions drawn therefrom are in error.” (Footnote omitted)

Reviewing the Commonwealth’s argument in light of this standard, we are convinced the suppression court was incorrect in ruling that the evidence seized was the product of an illegally drawn search warrant.

In making a determination as to the legal effect of the issuing authority’s affixing the wrong date and time to the warrant, this Court looks to the decisions in Commonwealth v. Swint, 256 Pa.Super. 169, 389 A.2d 654 (1978) and Commonwealth v. Chinea, 246 Pa.Super. 494, 371 A.2d 944 (1977) for guidance. Before doing so, however, we observe that Pa.R.Crim.P. 2005 requires, inter alia, that a search warrant shall specify the date and time of its issuance. Nonetheless, Rule 2005 has not been interpreted in such a hypertechnical manner so as to equate all errors associated with the issuance of a warrant to be violative of one’s Fourth Amendment rights. For example, in Commonwealth v. Chinea, supra, the officers applied for a warrant on November 18, 1975, and executed it the same day. Evidence was presented that the warrant affidavit was sworn to and subscribed on November 18, 1975. However, the magistrate inadvertently entered the following time of issuance: “Issued under my hand this 18th day of 1975, 1975, at 5:00 p. m. o’clock.” Id., 246 Pa.Super. at 496, 371 A.2d at 945. The lower court suppressed the evidence because the date of issuance was missing in violation of Rule 2005. On appeal, we disagreed with this determination and, in reversing, stated:

“The time limit for execution set by the magistrate was November 20, 1975, at 5:00 p. m., precisely the two-day time limit prescribed by Rule 2005(d), Pa.R.Crim.P., if one assumes that the warrant was issued on November 18, 1975, at 5:00 p. m. Thus, we reach the inescapable conclusion that when the Magistrate entered the 18th day of 1975, [sic] 1975, she clearly meant to enter November 18, 1975, as the date of issuance. Because the omission of the month from the date of issuance of the warrant does not deprive either the suppression court or this Court of the requisite information to determine that the warrant was properly issued and executed, we hold that it was error for the lower court to suppress the evidence seized in the November 18, 1975 gambling raid.” Id., 246 Pa.Super. at 497, 371 A.2d at 946.

The rationale utilized in Chinea was the basis for our ruling in Commonwealth v. Swint, supra, wherein the lower court held that the warrant was “patently defective” and, therefore, not lawful since the issuing authority had written a date on the search warrant when he signed it which was one day earlier than the date the affiant sought the application. From our review of the evidence, we concluded that the questionable date (July 15, 1976), which appeared in the warrant affidavit to indicate when information was received by the affiant to secure the warrant, was an inadvertent error of the issuing authority. Such determination was predicated not only upon the absence of any record evidence to intimate any impropriety by the issuing authority (i.e., signing the warrant in blank and filling it in at a later time), but, more importantly, the affiant’s “unchallenged testimony that the warrant was sought, issued and executed all on July 16, 1976.” Commonwealth v. Swint, supra, 256 Pa.Super. at 173, 389 A.2d at 657.

The incorrect date and time occasioned by the issuing authority’s mistake in the case at bar, like the misdating in Swint and the error in Chinea, did not leave the suppression court or this Court unable to review the propriety of the issuance and execution of the warrant. Instantly, we are confronted with the uncontroverted testimony of Lt. Coughlin and the District Magistrate that the warrant was applied for on September 5, 1980, and executed the next day, which is precisely within the two-day time limit prescribed by Pa.R.Crim.P. 2005(d), “if one assumes that the warrant was issued on [September 5, 1980, at 2:00 P.M.]” Commonwealth v. Chinea, supra, 246 Pa.Super. at 497, 371 A.2d at 946. Thus, as did the court in Chinea, we reach the inescapable conclusion that when the District Magistrate entered: “Issued under my hand this 6th day of Sept. 1980, at 8:00 A.M. o’clock”, he clearly intended to enter September 5, 1980, at 2:00 P.M., as the date of issuance. Id. This conclusion comports with the tenet that, “searches conducted pursuant to warrants are to be favored over warrantless searches and thus ‘. . . must be tested with a commonsense, nontechnical, ungrudging and positive attitude ....’” (Citation omitted) Commonwealth v. Wilds, 240 Pa.Super. 278, 286, 362 A.2d 273, 277 (1976).

Additionally, we cannot discount the fact that appellant has failed to show how he has been prejudiced by the mistake, and, thus, we can perceive of no reason why he should enjoy the windfall of having the evidence suppressed under the guise of precluding the Commonwealth from, as the lower court phrased it, “play[ing] fast and loose with a search warrant.” (Lower Court Opinion at 2) Our review of the evidence lends no credence to such characterization by the lower court. Quite the contrary, we observe, in considering the evidence of the prosecution’s witnesses, Commonwealth v. Johnson, supra, that the police executed the warrant well within the time strictures of Pa.R.Crim.P. 2005; therefore, we can perceive of no advantage accruing to the authorities by having the document postdated. Moreover, our examination of the record indicates that there is insufficient evidence to prove that the police and/or District Magistrate altered or filled in the document subsequent to the search to legitimize the seizure occasioned by its execution. As a result, given the facts of record, we disagree with the legal conclusions drawn therefrom by the lower court. Commonwealth v. Johnson, supra.

Accordingly, we reverse the order of April 21, 1981, and remand for further proceedings. Jurisdiction is not retained by this Court.

BROSKY, J., files dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent.

In Commonwealth v. Melton, 402 Pa. 628, 629, 168 A.2d 328, 329 (1961), our Supreme Court said:

It is only where the question involved is purely one of law that the Commonwealth may appeal from an adverse ruling in a criminal case.... Where . . . the reason for the action of the trial court, whereof the Commonwealth complains, is based upon a mixture of law and fact, the Commonwealth is without any right to appeal therefrom.

(Emphasis added.) See also: Commonwealth v. Ray, 448 Pa. 307, 312, 292 A.2d 410, 413 (1977); Commonwealth v. Iacavazzi, 297 Pa.Super. 200, 204, 443 A.2d 795, 797 (1981); Commonwealth v. Kunkel, 254 Pa.Super. 5, 385 A.2d 496 (1979); Commonwealth v. DeFelice, 248 Pa.Super. 516, 522, 375 A.2d 360, 363 (1977). I would hold that the Commonwealth cannot appeal from the order of the trial court.

The suppression court judge, Judge Maurice Louik, correctly stated in his opinion for the court:

It is within the discretion of the trial Court whether or not to allow amendments under Rule 150 of the Pa.R. Crim.P. Commonwealth v. Lardo, 240 Pa.Super. 107, 368 A.2d 324, 329 (1976). Since this Court finds that the search warrant was improperly issued, i.e., it was postdated, the Commonwealth will not be permitted to amend the warrant.
The issuing magistrate, Howard D. Lindberg, appears to have purposely postdated the search warrant. Mr. Lind-berg testified that he was told the police intended to execute the warrant at 8:00 A.M. on September 6. He then assigned a time of issuance that was identical to the intended time of the search.
It was not contended by the Commonwealth that the magistrate mistakenly wrote 8:00 A.M. September 6, 1980 instead of 2:00 P.M. September 5, 1980. It appears that the time of 8:00 A.M. September 6, 1980 was purposely and deliberately inserted instead of the actual time when the warrant was issued.
The Commonwealth finds itself on the horns of a dilemma. If the warrant was issued on September 5, 1980, at 2:00 P.M., it was postdated and improper. If the warrant was issued and intended to be issued at 8:00 A.M. September 6, 1980, it was improperly executed prior to the time of issuance. Commonwealth v. Swint, 256 Pa.Super. 169, 389 A.2d 654 (1978), is inapplicable to the instant case; since this Court finds that the warrant was deliberately postdated rather than misdated. Also, Commonwealth v. Chinea, 246 Pa.Super. 494, 371 A.2d 944 (1974), is inapplicable, since the postdating of a search warrant cannot be equated with “a minor typographical error.”

(Trial Court Opinion Pages 1-2) I agree with Judge Louik’s opinion. Therefore, I cannot agree with the majority that an appeal by the Commonwealth is permitted.

Clearly, if this were an error which I could reasonably find involved the unintentional misdating of a search warrant, Commonwealth v. Swint, 256 Pa.Super. 169, 389 A.2d 654 (1978), or “a minor typographical error,” Commonwealth v. Chinea, 246 Pa.Super. 494, 371 A.2d 944 (1974), I would agree that the Commonwealth could appeal. Under those circumstances, I would hold that the decision of the trial court was “purely one of law.” However, as Judge Louik indicates in his opinion, the decision of the suppression court required a factual determination as to whether the search warrant was or was not deliberately postdated. The decision depended in its entirety upon the suppression court’s appraisal of the credibility of the testimony of the magistrate. The court found the magistrate’s testimony incredible. Certainly, this is a factual decision. Accordingly, I would hold that the reason for the suppression court’s holding was “based upon a mixture of law and fact, ...” I would quash the Commonwealth’s appeal.

      . It is settled that the Commonwealth has a right to appeal the grant of a suppression motion, provided that the appeal involves a pure question of law and the suppression effectively terminates or substantially handicaps the prosecution. See, e.g., Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Commonwealth v. Kunkel, 254 Pa.Super. 5, 385 A.2d 496 (1978). The present case satisfies such criteria.
      We note that the appellee questions the jurisdiction of this Court to hear the instant case, claiming that since the Commonwealth failed to appeal the lower court’s suppression of the search warrant and evidence in a co-defendant’s (Theresa Dreher’s) case, it is estopped from relitigating the suppressability question now. This contention is specious. It must be remembered that in the context of criminal litigation, the concept of mutuality has retained its vitality. That is, collateral estoppel has generally been applied only in those criminal cases involving defendants who were parties to the prior adjudication. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Commonwealth v. Brown, 473 Pa. 458, 463, 375 A.2d 331, 334 (1977) (citing cases); see generally Anno., 9 A.L.R.3d 203 (1966). Instantly, the lower court conducted two separate suppression hearings. In the first, in which the court ruled in favor of the co-defendant, appellee was not a party to the motion; thus, it cannot be said that a factual finding favorable to the appellee was entered in the suppression hearing, nor were any of his rights being litigated therein. Commonwealth v. Brown, supra. Additionally, “ ‘ “Because there may have been a miscarriage of justice as to one joint offender is no reason why there should also be a miscarriage of justice as to the other joint offender.” ’ Roberts v. People, 103 Colo. 250, 261, 87 P.2d 251, 257 (1938).” Id., 473 Pa. at 466, 375 A.2d at 335. Consequently, the Commonwealth is not foreclosed from appealing the order of the suppression court.

      . Since, as the Commonwealth concedes, the probable cause section of the warrant “was not a subject of appellee’s Suppression Hearing[,]” we decline the Commonwealth’s invitation to review the probable cause portion of the warrant in the case at bar. This Court is not in the practice of rendering advisory opinions on questions which have not been fully briefed and argued below; to do otherwise, would be presumptive of the lower court’s determination on remand.

      . The majority’s opinion supports this contention. The majority specifically decided that a finding of fact by the lower court was incorrect. Instead, the majority chooses to act as a factfinder and states that it agrees with the Commonwealth that the evidence should have required a different decision:
      The suppression court disbelieved the Magistrate’s version that the error was the product of “an honest mistake.” Instead, the court found “that the warrant was deliberately post-dated rather than misdated.” Consequently, all evidence seized pursuant to the invalidly issued warrant was suppressed. This appeal followed.
      The Commonwealth asserts that the court abused its discretion in concluding from the evidence adduced at the suppression hearing that the date which the Magistrate noted on the search warrant was a purposeful act. Furthermore, the Commonwealth contends that appellee suffered no violation of his Fourth Amendment rights as a result of the misdating. We agree.
      (Page 540.)
      The majority contends further that the suppression court’s decision was improper. Even if I were to agree that an appeal could be brought by the Commonwealth, the standard of review, as the majority states, is “abuse of discretion.” I would not hold that the trial court abused its discretion in finding that the magistrate misdated the warrant deliberately. I note that the majority fails to specifically find that the suppression court abused its discretion. This court cannot reverse a decision, herein, simply because we disagree with the suppression court’s finding, rather, we must determine that that court abused its discretion before we can reverse its decision.


author: HOFFMAN, Judge: WATKINS, Judge,

text:
    448 A.2d 543
    COMMONWEALTH of Pennsylvania v. Carl MACOLINO and Gae Bernadette Macolino, Appellants.
    Superior Court of Pennsylvania.
    Submitted Oct. 20, 1981.
    Filed June 11, 1982.
    Reargument En Banc Denied Aug. 19, 1982.
    Petition for Allowance of Appeal Granted Nov. 4, 1982.

      John Rogers Carroll, Philadelphia, for appellants.
    Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the evidence was insufficient to support their convictions. We agree and, accordingly, reverse the judgments of sentence and order appellants discharged.

On October 27,1979, the Pennsylvania State Police, during a search of appellants’ home pursuant to a warrant, discovered four bags containing a white powder in a tan Tupperware container on the shelf in the clothes closet of appellants’ master bedroom. Also in the bedroom was a book entitled “The Pressures of Cocaine,” a Daisy Seal-a-Meal and an eavesdropping detector. Elsewhere in the house, police found $7,000 and two one-pound containers of Manitol, a commonly used cutting agent for cocaine. The white powder was subsequently determined to contain varying proportions of cocaine. Appellants’ pre-trial motions to suppress the evidence seized during the search were denied, and following a nonjury trial, appellant Carl Macolino was found guilty of possession with intent to deliver a controlled substance and criminal conspiracy, while appellant Gae Macolino was found guilty only of criminal conspiracy. Post-trial motions , were denied and sentence imposed, prompting this appeal.

Appellants contend that the evidence is insufficient to support their convictions for criminal conspiracy. We agree. “The test of the sufficiency of the evidence is whether viewing the evidence in the light most favorable to the Commonwealth, the trier of fact could reasonably have found all the elements of the crime had been established beyond a reasonable doubt.” Commonwealth v. Eckert, 244 Pa.Superior Ct. 424, 428, 368 A.2d 794, 795, 796 (1976). “In order for a defendant to be convicted of conspiracy, the Commonwealth must prove his involvement in an agreement to accomplish a criminal objective and the commission of an overt act in pursuance of the conspiracy.” Commonwealth v. Lewis, 276 Pa.Superior Ct. 451, 457, 419 A.2d 544, 547 (1980). Although a conspiracy may be inferentially established by the “relation, conduct or circumstances of the parties,” the evidence must be sufficient to overcome the presumption of innocence and satisfy the fact-finder beyond a reasonable doubt. Commonwealth v. Anderson, 265 Pa.Superior Ct. 494, 500, 402 A.2d 546, 549 (1979). The only evidence presented by the Commonwealth consisted of the officers’ testimony that they found the drugs on appellants’ closet shelf. There is no evidence of an agreement “to accomplish a criminal objective.” In fact, there is no evidence that either or both appellants were aware of the drugs’ presence. The only circumstance which even suggests a conspiracy is appellants’ marital relationship. However, such evidence, standing alone, is clearly insufficient to support a conspiracy conviction. Commonwealth v. Anderson, supra. Accordingly, we reverse appellants’ judgments of sentence for conspiracy.

Appellant Carl Macolino contends also that the evidence was insufficient to support his conviction for possession of a controlled substance with intent to deliver. We agree. “The illegal possession of narcotic drugs is a crime which ‘by its very nature is unique to the individual. By definition, the possessor is the only person who could commit the crime. Guilt by association ... is unacceptable.’ ” Commonwealth v. Fortune, 456 Pa. 365, 368, 318 A.2d 327, 328 (1974) quoting Commonwealth v. Reece, 437 Pa. 422, 427, 263 A.2d 463, 466 (1970). If the Commonwealth is unable to show actual possession by the defendant, it must then prove constructive possession, i.e., “the power to control the contraband and the intent to exercise that control.” Commonwealth v. Luddy, 281 Pa.Superior Ct. 540, 547, 422 A.2d 601, 604 (1980). Although constructive possession may be inferred from the totality of the circumstances, Commonwealth v. DeCampli, 243 Pa.Superior Ct. 69, 364 A.2d 454 (1976), mere presence, Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971); Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971), or residence at the scene, Commonwealth v. Fortune, supra; Commonwealth v. Luddy, supra, is insufficient to prove a conscious dominion over the contraband. “Undoubtedly, the fact of possession loses all persuasiveness if persons other than the accused had equal access with him to the place in which the property was discovered: 9 Wigmore on Evidence (3rd ed.) § 2513.” Commonwealth v. Davis, supra, 444 Pa. at 16, 280 A.2d at 121; Commonwealth v. Luddy, supra, 281 Pa.Superior Ct. at 547, 422 A.2d at 605. The only evidence of possession was the officers’ testimony that the contraband was found on a closet shelf in appellants’ bedroom. Although the evidence was sufficient to show that both the bedroom and the closet were shared by appellants, there was no evidence whether the cocaine was in the open or hidden, or that appellant Carl Macolino knew of its presence. Appellant Gae Macolino had equal access to the seized materials and thus the inference is just as strong that the drugs belonged to her as to her husband. The Commonwealth has failed to show either actual or constructive possession of the contraband by appellant Carl Macolino. See Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977) (defendant, roommate and girlfriend had equal access to marijuana in trailer); Commonwealth v. Fortune, supra (four adults had equal access to drugs as defendant-homeowner); Commonwealth v. Davis, supra (three persons had equal access to contraband in locker); Commonwealth v. Tirpak, supra (seven persons with equal access to marijuana at party); Commonwealth v. Luddy, supra (seven people with access to marijuana in refrigerator); Commonwealth v. Maurer, 240 Pa.Superior Ct. 471, 361 A.2d 356 (1976) (defendant’s mother and son had equal access); Commonwealth v. Hannan, 229 Pa.Superior Ct. 540, 331 A.2d 503 (1974) (husband and several adults had equal access); Commonwealth v. Updegrove, 223 Pa.Superior Ct. 7, 296 A.2d 854 (1972) (three people with equal access). Accordingly, because we find the evidence insufficient to establish Carl Macolino’s possession of the cocaine, we must also reverse his judgment of sentence on that charge.

Judgments of sentence reversed and appellants discharged.

WATKINS, J., files a dissenting opinion.

WATKINS, Judge,

dissenting:

I dissent and would affirm the judgments of sentence. Since the Commonwealth prevailed in the court below all of the evidence must be read in the light most favorable to it and it is entitled to all reasonable inferences arising therefrom. Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977). Furthermore, when several individuals have equal access to the area where drugs are found, the Commonwealth may obtain a conviction if it can prove joint constructive possession of the contraband. To establish joint constructive possession the Commonwealth must show that the appellant had knowledge of the presence of the drugs and the intent to exercise control over them and these elements may be inferred from the totality of the surrounding circumstances. See Commonwealth v. Griffin, 230 Pa.Superior Ct. 425, 326 A.2d 554 (1974).

In the instant case the residence where the drugs were found was owned by the defendants. They entered their home by the use of their key. The telephone number for their address was listed under the same name of defendant, Carl Macolino. Mail found in the home was addressed to the defendants. Bills addressed to the defendants, bank books and checkbooks in their names, and, photographs of them were also found in the home. The cocaine was found in the clothes closet of the master bedroom which contained both male and female clothing. Considering the above circumstances in their totality, I would find that there was sufficient evidence produced by the Commonwealth to establish joint constructive possession of the home.

The cases cited by the Majority in support of its decision are readily distinguishable from the present case. In Commonwealth v. Fortune, 456 Pa. 365, 368, 318 A.2d 327, 328 (1974), relied upon by the Majority, the drugs were found on the floor in the doorway between the kitchen and rear shed. Three men and one woman had been seated in the living room of the premises at the time the police arrived and it was impossible to determine who placed the drugs in the position where they were found. In Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971), the contraband was found in a locked cupboard and the key was in the possession of the defendant’s mistress. In Commonwealth v. Reece, 437 Pa. 422, 263 A.2d 463 (1970), there were several people present at the “pot party” when the search was conducted. In Commonwealth v. Chenet, supra, several persons had access to the area where the contraband was found. In short, all of the cases cited by the Majority are distinguishable from the instant case because in those cases various people had equal access to the area where the contraband was found as opposed to the instant case which involved a master bedroom in a home owned exclusively by the defendants. In the absence of any testimony indicating that other persons had access to the defendants’ bedroom, I would find that the elements of joint constructive possession have been established by the Commonwealth and would affirm the judgments of sentence.

      . Appellants assert in their brief that the contraband was covered by a “sheet or blanket.” However, there was no testimony at trial concerning its visibility.

      . Despite having ample evidence to tie the drugs to appellant Carl Macolino at the suppression hearing, the Commonwealth offered no evidence at trial other than a police officer’s naked assertion that they believed “Charlie” had drugs at the address. The officer failed tó inform the finder of fact of the basis for his belief. Thus, the evidence at trial was clearly insufficient to establish any nexus between Carl Macolino and the contraband other than his residence in the home.

      . Because of our disposition of this matter, we need not address appellants’ remaining contentions.


author: HESTER, Judge:

text:
    448 A.2d 547
    Rose BONI v. John BONI, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed June 25, 1982.

      Sandor Engle, Allentown, for appellant.
    James F. Menconi, Tamaqua, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   HESTER, Judge:

In this case, the Husband, John Boni, has appealed an order of the Court of Common Pleas of Carbon County, of March 12, 1980, which requires the Husband to pay $475.00 per week for the support of his Wife, Rose Boni, and their four minor children. The order also requires the Husband to continue to pay the mortgage, insurance, taxes, and repairs for the parties’ jointly-owned residence, at which the Wife is living.

The parties were married in 1963 and separated in September of 1978. The Wife is unemployed and is a full-time homemaker. She owns an apartment house in New York which was purchased for $80,000, but apparently produces no income.

The Husband is a one-half owner and manager of a sewing contracting business, known as Pam Sportswear. He formerly owned this Company with his brother-in-law (Wife’s sister’s husband); but, because of the family strains resulting from the separation, Husband bought out his brother-in-law’s one-half interest in September of 1979.

The parties each own a one-quarter interest in a horse farm known as Mahoning Valley Stables, which the lower court valued at $175,000.00. The lower court valued the jointly-owned residence at $99,000.00, based upon its initial cost plus the cost of improvements.

In order to buy out his brother-in-law, the Husband borrowed money from other third persons; and, in exchange, issued to those persons 50% of the stock of the Company. The lower court valued the Husband’s then present 50% interest in the Company at $138,000.00, which is what Husband paid to buy out his brother-in-law on September 30, 1979. The lower court stated:

“Because this was a bona fide, arms length transaction between equal partners, the money paid out by the [Husband] to [the brother-in-law], in the Court’s opinion, accurately demonstrate(s) the fair market value of the [Husband’s] 50% interest in the corporation and we so found.”

The lower court concluded that, as of the hearing date, the Husband had a net worth of $433,251.00, itemized as follows:

ASSET VALUE
Pam Sportswear, Inc.-50% stock ownership $138,000.00
Weissport factory propertyV2 interest 185,000.00
Residence at costV2 interest 49,900.00
Certificates of Deposit in the name of Husband and his Mother or Husband alone 16,601.00
TOTAL NET WORTH $433,251.00

In 1979, Husband’s income tax return reflected total income before taxes in the amount of $34,875.00, including $23,250.00 in wages from the Company and $10,000.00 in management fees. In 1979, Husband also reported $18,-397.00 in capital gains resulting from the sale of his lh interest in an apartment building which he formerly owned jointly with the brother-in-law.

The lower court specifically stated that it “. . . considered his 1979 earnings but we did not base our order on these earnings.”

Husband’s 1978 tax return, which he filed jointly with his Wife, reflected that his gross income from the Company was $53,382.00. The lower court held that this amount “. . . more accurately establishes the [Husband’s] earning capacity. This income was prior to the separation of the parties, at a time when [Husband] had no reason to deflate his income other than for tax purposes and this income was consistent with his affluent standard of living.”

At the hearing, Wife presented a monthly expense statement for her and the four children totalling $2,590.00. After review, the court reduced the expenses to $2,200.00 per month, which included the mortgage payment in the amount of $256.00 per month.

Prior to the separation, the parties enjoyed a very high standard of living. Wife testified, without contradiction, that the Husband customarily gave her $400.00 per week to run the home and to care for the children. In addition, Husband paid for all car insurances, utility bills, dental and medical bills, gas for the cars, and tuition for the children in private schools. The parties lived in an elaborate all-brick four-bedroom home. Husband had purchased his Wife a 1975 Continental for $14,000 in cash and a Corvette for himself for $7,000 in cash. The children had 3 motor bikes and a snowmobile. Wife also testified that Husband bought her a diamond ring for $6,000 in November of 1977 and two other rings which he had purchased for $1,000 each.

Based on the above facts and figures, the lower court determined “. . . that a support order of $525.00 per week would be more than fair and reasonable for the support of his Wife and four children.” However, the lower court reduced the amount to $475.00 per week, by giving Husband credit for the income-producing trust funds which he had established for his children, whereby each of his children would receive approximately $42.00 a week. Commonwealth ex rel. Goichman v. Goichman, 226 Pa.Super. 311, 316 A.2d 653 (1973); Doelp v. Doelp, 219 Pa.Super. 420, 281 A.2d 721 (1971).

In arriving at the weekly payment of $475.00, the lower court imputed a 10% per annum interest rate of return on Husband’s net worth of $433,251.00. The lower court concluded that this rate of return, “. . . in these times of inflationary interest rates is modest.” Therefore, the lower court applied $43,325.00 per year toward the support of the Wife and children, as part of Husband’s earning capacity.

The appellant raises three issue on appeal. Although we do not agree with the reasoning of the lower court in arriving at the support order, we, nevertheless, affirm the order, with one modification, because as stated by the lower court, “. .. this order of support is fair and reasonable based upon the standard of living that the [Husband] established and maintained prior to his separation from the family.” Commonwealth ex rel. Roviello v. Roviello, 229 Pa.Super. 428, 323 A.2d 766 (1974); McGavic v. McGavic, 222 Pa.Super. 246, 294 A.2d 795 (1972).

“Initially, it is appropriate to observe that the trial court possesses wide discretion as to the proper amount of support payments and, unless surrounding circumstances suggest the court abused its discretion, its judgment will not be disturbed. Commonwealth ex rel. Berry v. Berry, 253 Pa.Super. 288, 384 A.2d 1337 (1978); Weiser v. Weiser, 238 Pa.Super. 488, 362 A.2d 287 (1976); Commonwealth ex rel. Caplan v. Caplan, 236 Pa.Super. 605, 346 A.2d 822 (1975).” Straub v. Tyahla, 274 Pa.Super. 411, 418 A.2d 472, 473-4 (1980).

“Our scope of review is limited to a determination as to whether the order of support can be sustained on any valid ground. Commonwealth ex rel. Marvin v. Marvin, 193 Pa.Super. 179, 164 A.2d 128 (1960). We must determine whether there was sufficient evidence to sustain the lower court or contrariwise whether the lower court was guilty of an abuse of discretion. A finding of abuse of discretion is not lightly made; but only upon a showing of clear and convincing evidence. Commonwealth ex rel. McQuiddy v. McQuiddy, 238 Pa.Super. 390, 358 A.2d 102 (1976); Commonwealth ex rel. Caplan v. Caplan, 236 Pa.Super. 605, 346 A.2d 822 (1975); Commonwealth ex rel. Halderman v. Halderman, 230 Pa.Super. 125, 326 A.2d 908 (1974).” Straub, supra, 274 Pa.Superior Ct. 418 A.2d at 474.

“In reviewing the lower court’s action to determine whether an abuse of discretion has occurred, we recognize that ‘[a]n abuse of discretion is [not] merely an error of judgment, but if in reaching a conclusion the law is overriden 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.’ Commonwealth ex rel. Levy v. Levy, 240 Pa.Super. 168, 361 A.2d 781, 785 (1976).” Straub, supra.

“In evaluating a spouse’s support obligation, the factors to be considered are the spouse’s income, potential earning power, and the extent of his property and financial resources. Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103, 380 A.2d 398 (1977); Shuster v. Shuster, 226 Pa.Super. 542, 323 A.2d 760 (1974). The amount of award must be fair, non-confiscatory, and attendant to the circumstances of the parties. Commonwealth ex rel. Malizia v. Malizia, 229 Pa. Super. 108, 324 A.2d 386 (1974); Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 226 Pa.Super. 301, 310 A.2d 672 (1973).” Straub, supra.

The appellant first questions whether it is an abuse of discretion for the lower court to base a support order on an unsubstantiated annual interest rate of return for less than majority interest in non income-producing assets. We agree with appellant that the assets in question, with the exception of the certificates of deposit, can not be reasonably expected to yield a 10% annual interest rate of return.

Husband’s 50% interest in Pam’s Sportswear, Inc. and the Weissport factory property, although they are valuable assets, cannot be considered as producing a 10% annual rate of return for the Husband. These fixed assets do not directly result in any cash flow for Husband’s business. By including these fixed assets as part of Husband’s earning capacity, the lower court, in effect, is requiring Husband to either sell or encumber his interest in order to obtain liquid funds for the payment of support.

Under the Divorce Code, Act of April 2, 1980, P.L. 63, Act No. 26, 23 Pa.C.S.A. Section 101 et seq., Wife would seemingly have a claim to these assets by way of an action for equitable distribution, if necessary. However, to require a spouse to liquidate these assets in order to pay support would “kill the goose that lays the golden egg”, and would not be in the best long-term interests of the Wife or the children.

Similarly, the parties’ jointly-owned residence, which the lower court valued at $99,000.00, should not be considered in determining the amount of support because it can not be expected to produce any income to the Husband unless it is sold or further encumbered. In other words, it simply does not reflect Husband’s earning capacity.

The Mahoning Valley Stables should not be considered as an income-producing asset since, in 1978 prior to the separation of the parties, both Husband and Wife each claimed a tax loss in the amount of $11,496.00 resulting from this asset. Although this loss was really a result of the depreciation of the buildings, the track and the horses and was not an actual out-of-pocket loss to the parties, the Farm, nevertheless, does not actually produce any income for the Husband from which he could pay support. The lower court found that Husband received $1,250.00 per year from the rental of the farm land and $175.00 every other month from the rental of the farm house. However, the record would support Husband’s contention that this amount, $2,300.00 per year, was actually used to pay the taxes, insurance, and repairs for the property.

The lower court properly included the amount of $16,601.00, in the form of certificates of deposit in Husband’s name and the name of his mother or his name alone, as part of Husband’s earning capacity. These assets should be considered at the actual annual interest rate of return; but, since these interest rates are not included in the record, we agree that 10% per annum is a “modest” interest rate to be applied to the certificates.

In Commonwealth ex rel. Gutzeit v. Gutzeit, 200 Pa.Super. 401, 189 A.2d 324, 326 (1963) this Court stated:

“The assets of a defendant are to be considered in setting the amount of a support order. Commonwealth v. Surovitz, 148 Pa.Super. 342, 347, 25 A.2d 761 (1942), but the important consideration here is the earning capacity of the defendant.”

In Commonwealth ex rel. Kallen v. Kallen, 202 Pa.Super. 500, 198 A.2d 331, 333 (1964), this Court added, “. . . to the husband’s professional income a modest return on the value of his capital assets,” in order to arrive at a figure for Husband’s earning capacity which was more than three times the amount of the support order for the Wife alone.

In Commonwealth ex rel. Ross v. Ross, 206 Pa.Super. 429, 213 A.2d 135, 139 (1965), this Court, in determining earning capacity, approved the inclusion of “. . . not only the husband’s actual income but also the interest from the $17,-500.00 savings accounts.”

On the basis on the above-cited cases, the lower court could consider the Husband’s assets, as a factor which reflects his potential earning capacity, but the court could not arbitrarily impute income to these fixed assets at the rate of 10% per annum.

Secondly, the appellant challenges the lower court’s failure to consider the financial resources of the Wife in determining the amount of support.

For the reasons stated above, Wife’s interest in the Ma-honing Valley Stables and the jointly-owned residence were properly not considered by the lower court, since they similarly produce no income to the Wife unless they were to be liquidated or encumbered.

Concerning the Wife’s interest in the New York apartment building, which the lower court valued at $80,000.00, this asset, although it apparently produces no income to the Wife, must be considered, as a factor indicating Wife’s potential earning capacity, to the same extent that the Husband’s capital assets are considered. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974).

The appellant thirdly contends that the lower court abused its discretion by basing Husband’s present earning capacity on past, rather than present, income. We disagree.

The lower court based its determination of Husband’s earning capacity on his 1978 income from Pam’s Sportswear in the amount of $52,382.00. Although it is possible that the business lost money as a result of the buy-out of the brother-in-law and the subsequent re-sale of a 50% interest and indebtedness to third parties, it was not an abuse of discretion for the lower court to base Husband’s earning capacity on his 1978 income. Husband is operating a successful business, which has fixed assets and goodwill of substantial value. Husband can, in effect, control the amount of his income by setting his own salary. He also has the advantage of deducting many of his expenses through the corporation.

In Gutzeit, supra, this Court considered the husband’s ability to control his own salary, the value of his assets, including his successful, solely-owned corporation, as well as the other benefits which husband derived from the corporation in determining that the husband’s earning capacity was nearly twice as much as his annual average salary. 200 Pa.Superior 408, 189 A.2d at 327.

In Ross, supra, this Court disapproved the consideration of the husband’s past earnings in determining his present earning capacity, since the husband was 65 and retired from his job. 206 Pa.Superior 432-33, 213 A.2d at 137. Clearly, Ross, supra, is distinguishable from the facts of the instant case, since the Husband is still actively managing his successful business.

Accordingly, the lower court properly considered Husband’s 1978 income in determining his earning capacity along with the “income which can be reasonably earned from capital assets”. Kallen, supra, 202 Pa.Superior 502, 198 A.2d at 333.

Based on our review of the record, we conclude that Husband’s earning capacity should be set at $60,000.00 per year.

In arriving at the support order, the lower court properly considered the station in life of the parties and the standard of living which the Husband had established for his family, prior to his separation from the Wife. Commonwealth ex rel. Kallen v. Kallen, 200 Pa. Super. 507, 190 A.2d 175, 176 (1963), Ross, supra, 206 Pa.Superior 434, 213 A.2d at 137; Roviello, supra; McGavic, supra; Straub, supra. Since the Wife and the four children are accustomed to an affluent standard of living, the lower court properly determined the amount of support; and, for this valid ground, we affirm, Marvin, supra; Straub, supra, except for one modification.

On the basis of the Wife’s income and expense statement, the lower court determined that her needs and the needs of her children were $2,200.00 per month, which included the residential mortgage payment of $256.00 per month.

Since the Husband is required to pay the mortgage in addition to the $475.00 per week, he should not, in effect, have to pay the mortgage twice. Accordingly, the expenses of the Wife and four children should be reduced to $1,950.00 per month and Husband’s support payment should be reduced to $450.00 per week. Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979). The remainder of the lower court’s order, as modified, is affirmed.

Therefore, Husband’s total support obligation for his Wife and four children, including the payment of the mortgage, taxes, and insurance for the jointly-owned residence is $27,-672.00 per year, plus the cost of repairs to the residence, all of which should be less than xh of his earning capacity. The lower court’s order is prospectively modified, as follows, and is otherwise affirmed:

1. The appellant, JOHN BONI, shall pay the sum of $150.00 per week for the support of ROSE BONI, the appellee-wife, and $300.00 per week for the support of ALDO BONI, d/o/b 2/16/64, PAT BONI, d/o/b 2/10/69, TONIA BONI, d/o/b 2/25/73 and LORENA BONI, d/o/b 2/7/74, the children of the appellant.
2. Appellant shall continue to pay the mortgage, insurance, taxes and repairs on the parties’ jointly owned residence.
3. Appellant shall make the support payments of $450.00 per week to the DOMESTIC RELATIONS OFFICE OF CARBON COUNTY, with credit to be given for all direct support payments to appellee upon proof of payment to the Carbon County Domestic Relations Office.
4. Appellant shall pay $1.00 per month service cost commencing January, 1979.

      . At the time of the hearing, the Husband and the brother-in-law were involved in litigation concerning the ownership of this property. Husband contended that he owned the entire property, and the brother-in-law contended that he owned lh of the property. However, the lower court based its analysis on the assumption that Husband owned only a V2 interest in the property.

       Printer’s Error.

      . The “modest return” in Kallen was less than 1%.

      . The policy in this Commonwealth, that an order of support should not exceed */3 of the husband’s earning capacity does not apply to support orders for children. Gutzeit, supra, 200 Pa.Superior 409-10, 189 A.2d at 329, Commonwealth ex rel. Warner v. Warner, 198 Pa.Super. 124, 132, 181 A.2d 888, 892 (1962).

      . $1,950.00 per month divided 4.333 weeks per month equals $450.00 per week. Based upon our review of all of the circumstances in this case, Husband is not entitled to a full dollar-for-dollar reduction for the amount of the mortgage. $1,950.00 per month accurately reflects the expenses of Wife and the four children. Husband must continue to support the standard of living which he established for his family prior to the separation. On the basis of all of the factors and considerations stated herein, this amount is fair and reasonable.

      . Husband must also pay approximately $100.00 per month for taxes and insurance for the joint residence.