author: JOHNSON, Judge: HESTER, Judge,

text:
    446 A.2d 918
    David A. McANALLEN v. Mary E. McANALLEN, Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1982.
    Filed June 4, 1982.

      Jane Fay L. Hepting, Chicora, for appellant.
    Gwilym A. Price, III, Butler, submitted a brief on behalf of appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Appellant (Mother) appeals from an order granting custody of both daughters, Tina and Lisa, to Appellee (Father). The lower court denied Appellant’s motion for a stay pending appeal, but our court, per MONTGOMERY, J., granted the stay to allow Appellant to have custody of Tina pending appeal. For the following reasons, we reverse the lower court’s order regarding Tina.

I. FACTS

Appellant and Appellee were married in July, 1975, when Appellant was 16 years old and Appellee was 18 years old. Tina, their first child, was born on February 6, 1976; Lisa was born on September 12, 1978. Appellant and Appellee separated in November, 1978, arid were subsequently divorced. When the custody order was entered on September 3, 1981, Tina was six years old and Lisa was almost three years old.

Appellee has remarried and is the father of a child who was 4 months old at the time of the hearing. Also, at the time of the hearing, Appellant had had a nonmarital relationship with another man (Ed) for 2 years and 5 months. Ed and Appellant also have a daughter who is younger than Lisa. Both Ed and Appellant testified that they had postponed their marriage plans until Ed would have a job.

After her separation from Appellee, Appellant, together with Tina and Lisa, returned to her mother’s home until April, 1979, when Appellant and Ed established their home together. On May 3, 1979, Appellee was ordered to pay support for Tina and Lisa. A few days later, Appellee refused to return the children to Appellant after the children had spent the weekend with Appellee. Two weeks later, Appellee returned Tina to Appellant because Tina did not want to stay with Appellee.

Appellee filed a petition for custody, and Appellant filed an answer and a cross-petition for custody. At a conference on January 30, 1980, a consent order, which granted custody of Lisa to Appellee and custody of Tina to Appellant, was signed by the lower court.

In February, 1980, after Appellee threatened to move to Texas with Lisa, both parties filed motions; and a second conference was scheduled for March, 1980, before a master. At the recommendation of the master, on March 14, 1980, the judge ordered home evaluations and psychological examinations and continued the proceedings. On August 15, 1980, another conference was held before the master who, after considering the aforesaid reports and evaluations, recommended that custody of Tina should remain with Appellant and custody of Lisa should remain with Appellee. After several continuances and other motions, a full custody hearing was commenced on April 30, 1981, and concluded on July 14, 1981. On September 3,1981, the trial judge signed an order granting Appellee custody of both Tina and Lisa.

In addition to Appellant and Appellee, sixteen witnesses testified at the custody hearing. The former supervisor of the abuse unit for Children and Youth Services testified concerning Lisa’s failure to thrive in April, 1979, as well as the evaluations of Appellant’s home in late April/May, 1980. The witness testified that conditions in Appellant’s home in 1980 were very good and that Appellant had “excellent control” over the children. The witness also testified that both children were functioning well in their respective homes and, consequently, she saw “no reason to uproot either of those children to perhaps satisfy the desires of the parents.”

The Domestic Relations Officer/Home Study Investigator testified that Appellant and Ed lived in a “large and quite adequate” apartment. He described Appellant and Ed as “two very cooperative people who seemd [sic] to have a stable relationship with each other and with the children. ...”

Both the Social Service Coordinator for the Headstart Program and Tina’s Headstart teacher testified concerning Appellant’s and Ed’s intense involvement and volunteer work with Headstart. Tina’s teacher also testified concerning the “good interaction” between Tina and Appellant. The Parent Involvement Specialist with Headstart testified regarding Appellant’s leadership, her ability as an organizer, and her ability to relate very well with others on all levels.

The coordinator of the Parent Infant Center at Butler Hospital stated that both Appellant and Ed “do an excellent job” of parenting. The assistant coordinator of the Parent Infant Center described how Appellant always planned in advance to bring extra diapers, snacks, etc., both for her children and for others.

The witnesses for Appellee were his current wife, Appellee’s mother and father, Appellee’s current mother-in-law, and two women who babysit for Appellee and his wife. These witnesses testified that Appellee and his wife are excellent parents. Appellee, whose arrearages on the support order of May 3, 1979, were approximately $2,200 at the time of the hearing, stated that he did not pay child support because he did not “feel my kids are being cared for.”

II. THE LOWER COURT’S OPINION

In his opinion, the trial judge explained that, although he had considered the recommendations of the master and of two expert witnesses that Tina should remain with Appellant, he disagreed for the reasons stated in his opinion. In addition to the findings of fact, the court’s opinion lists the following factors and proceeds to allot a number of points to Appellant and Appellee for each of these factors:

Appellant Appellee

1. Love 10 10

2. Parenting 5 10

3. Responsibility - - 10

4. Home 5 10

5. Environment - - 10

6. Roots - - 10

7. Family stability - - 10

8. Morals - - 10

9. Support - - 10

In his very brief discussion of each of the foregoing factors, the trial judge severely criticizes Appellant several times because she is a welfare recipient and because she is not married to Ed. The court also gives Appellant a score of zero on “Roots” because her family does not provide the “beneficial influence” on the lives of the children that Appellee’s parents provide. The court criticizes Appellant several times as a “welfare recipient who will probably continue to be dependent on welfare and social services.” This discussion echoes the court’s finding of fact no. 9 which states in part:

Mary Cousins McAnallen [Appellant] is weak and dependent. She lacks self discipline and has not functioned acceptably as a housekeeper and mother without guidance and supervision. Her background of neglect and deprivation, her conduct after marriage combined with inherent weaknesses, are evidence that her life career will be as a welfare recipient. Mary loves her children and will care for them under guidance and supervision.

III. DISCUSSION

Since the record in the instant case is comprehensive and the essential facts are not in dispute, we are able to consider the merits of the instant case. Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super.Ct. 63, 70, 434 A.2d 130, 133 (1981). The primary concern in a custody case is the “best interest and permanent welfare of the child.” Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 295, 426 A.2d 555, 557 (1981). In determining what arrangement would serve the best interests of the child, our scope of review is of the broadest type. Id., 493 Pa. at 296, 426 A.2d at 557; Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super.Ct. at 69, 434 A.2d at 132; Commonwealth ex rel. Berman v. Berman, 289 Pa.Super.Ct. 91, 93, 432 A.2d 1066, 1067 (1981). “We must exercise an independent judgment based on the evidence and make such an order on the merits of the case as right and justice dictate.” Commonwealth ex rel. Pierce v. Pierce, 493 Pa. at 296, 426 A.2d at 557.

Our review of the testimony in the instant case reveals a picture of Appellant’s development from a teenaged mother who, by her own admission, made a lot of mistakes, to a well-organized, competent 22-year-old mother. Contrary to the lower court’s interpretation that Appellant is a good parent only “with guidance and help” and that she will “probably continue to be dependent on welfare and social services,” the testimony of the various coordinators of these services reveals a totally different image of Appellant. Both Appellant and Ed work in the Headstart classroom as teacher’s aides; and Appellant is the chairperson of the organization of parents involved with Headstart while Ed is the treasurer. Appellant has worked on various committees, has organized fundraisers, has arranged for speakers, has worked in community relations, and has “been very organized and very mature in the handling of these things.” Also, Appellant has now obtained her G.E.D. diploma.

The record reveals that, although Appellant made mistakes regarding the care of Lisa in 1979, Appellant had the good sense to seek help and to benefit by that help so she is now a very capable parent.

The social service coordinators also testified that Ed is an excellent parent. The relationship of Appellant and Ed, as reflected in the record, is a stable and happy one.

One of the principal reasons for the lower court’s decision not to grant custody to Appellant is the relationship of Appellant and Ed. Under “Morals,” the judge states:

Like mother—like daughter. A daughter can be expected to be greatly influenced by the life-style of the mother with whom she resides. To pattern their life after that of Mary is not in the best interests of either child.
Sharon, as a mother and housewife married to their father, is a good example for the children. Mary’s relationship with Edward and their illegitimate child is not a good model for the children.

Although the lower court utilizes the terminology regarding the best interests of the child, the court cannot point to any testimony that Appellant’s relationship with Ed has an adverse effect upon the children. As our court stated in G. J. F. v. K. B. F, 284 Pa.Super.Ct. 139, 425 A.2d 459 (1981),

[T]he court’s function in custody cases is not to penalize one party for breaching a perceived moral code; rather, it is to determine how the interests of the children will best be served. [Citations omitted.]

Id., 284 Pa.Superior Ct. at 141-142, 425 A.2d at 460. The trial judge must never impose his own moral code upon the facts in a custody dispute:

Everyone develops a code of personal conduct. It does not follow that one is entitled to impose that code on others, or penalize those who do not conform to it. Especially in a child custody case is it important that the hearing judge distinguish between his personal code of conduct, and his determination of what is in the children’s best interest. One may believe, with the utmost conviction, that certain conduct is wrong, and yet it may be that that belief should have little or no part in determining who should have custody of the children. A judge may believe that “lips that touch liquor shall never touch mine,” but he is not for that reason to deny custody to a mother who drinks. A judge may be a devout churchgoer, but he is not for that reason to deny custody to a mother who does not go to church. Or, as here, a judge may believe that it is immoral for an unmarried woman to have sexual intercourse, but he is not for that reason to deny her custody of her children. See Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976) (collecting and discussing cases); Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). Of course, “a parent’s nonmarital relationships must be given close scrutiny in determining custody matters.” Commonwealth ex rel. Myers v. Myers, supra, 468 Pa. at 138, 360 A.2d at 589. The purpose of the scrutiny, however, is only to determine the impact of the relationship on the children:
[I]t is the effect of the nonmarital relationship on the child and not the fact of the relationship itself which is crucial to a custody decision. If the evidence shows that a parent’s conduct has had harmful effects on the child the court may be justified in denying custody to that parent. On the other hand, if the evidence shows that the parent’s conduct has not adversely affected the child and that the parent has taken good care of the child, then the best interest of the child may dictate that the parent retain custody. In each case, all relevant circumstances must be examined to determine what action would be in the best interest of the child. Commonwealth ex rel. Myers v. Myers, supra, 468 Pa. at 141, 360 A.2d at 590.
The controlling words in this statement of the law are, “if the evidence shows .. . . ” The court must never assume, or infer, that simply because a nonmarital relationship exists, the impact of the relationship on the children has been harmful. The evidence must show that it has been harmful, and this is so whether the nonmarital relationship, as in Myers and Gunter, approaches a de facto marriage or, as in this case, is more transient.

Robert H. H. v. May L. H., 293 Pa.Super.Ct. 431, 437, 439 A.2d 187, 190 (1981) (quoting SPAETH, J., Dissenting Opinion in Commonwealth ex rel. Grimes v. Grimes, 281 Pa.Super.Ct. 484, 498-499, 422 A.2d 572, 579-580 [1980]). [Citations omitted.]

In the instant case, the trial court’s emphasis upon the moral aspects of Appellant’s relationship with Ed constituted error because the testimony revealed that this relationship did not have an adverse effect upon the children. See G. J. F. v. K. B. F., 284 Pa.Super.Ct. at 141, 425 A.2d at 460.

Likewise, the lower court erred in its analysis of the parties’ respective financial situations and their effect upon the children:

Two families cannot live as cheap as one family. An order of support on David [Appellee] will either be inadequate to support a child or will deprive the family maintained by David and Sharon. When the parents are equally capable of caring for a child, the resources of the producer should not be divided by a support order. Generally a support order inflicts not only economic hardship but continuing conflict between the parents. The children are the victims, economically and emotionally. These problems for the children can be avoided by awarding custody of the children to David.

If the foregoing analysis were correct, custody should always be granted to the wage earner so that his/her income would not be divided by a support order. Obviously, this principle does not consider the best interests of the child.

The lower court asserts that the children in the instant case will be spared possible emotional and economic hardships if they are placed in Appellee’s custody. To award custody to Appellee in order to spare the children these nonexistent problems is to ignore all of the other aspects of the children’s well-being and best interests. The lower court erred in utilizing this factor as a basis for its decision.

Rather than vacate the lower court’s order and remand for further proceedings as our court did in G. J. F. v. K. B. F., we can decide the merits of the instant case since the record is complete. Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super.Ct. at 73, 434 A.2d at 135; Pamela J. K. v. Roger D. J., 277 Pa.Super.Ct. 579, 592, 419 A.2d 1301, 1311 (1980).

As this opinion has indicated, the entire record indicates that Lisa has been thriving in Appellee’s custody and Tina has been thriving in the custody of Appellant. Both the master and two social service coordinators recommended that Tina and Lisa should remain with Appellant and Appellee respectively. The record supports an order awarding custody in the aforesaid manner.

Our court has expressed a policy that, absent compelling reasons, siblings should not be separated. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 327, 421 A.2d 157, 160 (1980); In re Davis, 288 Pa.Super.Ct. 453, 464, 432 A.2d 600, 606 (1981). Since the best interests of the children in the instant case must prevail over any abstract policy, we will not disturb the happy and stable relationships that Appellee has established with Lisa and Appellant has established with Tina. See Commonwealth ex rel. Hughes v. Foster, 225 Pa.Super.Ct. 436, 311 A.2d 663 (1973).

For the foregoing reasons, we affirm that portion of the lower court’s order that grants custody of Lisa to Appellee and reverse that portion of the order that grants custody of Tina to Appellee. Instead, we award custody of Tina to Appellant.

The case is remanded for further proceedings as necessary to establish appropriate visitation and partial custody rights of Appellant and Appellee not inconsistent with the foregoing opinion and order.

HESTER, J., files a concurring statement.

HESTER, Judge,

concurring:

I concur in the result reached by the majority wherein custody of Tina McAnallen has been awarded to the appellant, her mother. The record indicates that disposition will best serve the interests of the child.

However, I do not agree with the reasoning of this Court as set forth in G. J. F. v. K. B. F., 284 Pa.Super. 139, 425 A.2d 459 (1981), and in Robert H. H. v. May L. H., 293 Pa.Super. 431, 439 A.2d 187 (1981), wherein it is pronounced that it is the effect of the nonmarital relationships of the mother upon the child and not the fact of the relationship itself which is crucial to a custody decision. The fallacy of that position is that the harmful effects upon young, female children, of their mother’s open, notorious, and numerous nonmarital relationships cannot possibly be evaluated until the child is in a position to emulate the conduct of her mother, normally in puberty, long after custody has been determined. The lower court judge, in the within appeal, was accurate in his observation that, “Like mother-like daughter.”

In addition, I would add to the remand the obligation of determining the amount of support to be paid by appellee to appellant for the support of Tina, plus the amount to be paid by appellee towards the arrearages.

      . Although Judge HESTER, in his Concurring Statement, would remand to determine the amount of support, plus arrearages, that Appellee should pay to Appellant for the support of Tina, we believe that the issue of support is not before our court in this appeal.

      . Cited as Commonwealth ex rel. Foster v. Foster in 311 A.2d 663 (1973).


source: Caselaw Access Project

author: VAN der VOORT, Judge:

license: Public Domain

text:
    446 A.2d 924
    COMMONWEALTH of Pennsylvania v. Edward Earl CAYTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 22, 1981.
    Filed June 4, 1982.

      Paul Bogdon, Pittsburgh, for appellant.
    Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
    Before PRICE, MONTGOMERY and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

A jury found appellant guilty on four charges of receiving stolen property and he was sentenced to one and one-half (IV2) to three (3) years imprisonment on each count, all running concurrently. Three contentions have been raised on this appeal.

I. The Commonwealth failed to prove beyond a reasonable doubt the corpus delicti.

The charge in each case was that appellant bought from Joseph Van Divner, and/or his brother and sister, articles of personal property:

television sets;
a C.B. radio;
rifles;
a tool box; and
a necklace and ring.

All of the items had been purchased by the Van Divners from various retail stores, using, at the suggestion of, and with the knowledge of appellant, bad checks drawn by Van Divners against accounts with inadequate funds.

Joseph Divner, according to his own testimony, was an accomplice in these criminal episodes. He was the only witness against appellant. None of the stolen property was ever recovered or found in the possession of appellant although the police searched appellant’s home and automobile and appellant’s mother’s home. Van Divner’s brother and sister had left the jurisdiction and did not testify. The appellant testified in his own behalf, denying that he even knew Joseph Van Divner at the time of the various charges, or that Van Divner had been in his home.

Appellant lists the three elements of the crime of receiving stolen property:

(1) that goods were stolen;
(2) that the defendant received some or all of the goods; and
(3) that the defendant had reason to know that the goods were stolen.

Commonwealth v. Kinsey, 249 Pa. Superior Ct. 1, 375 A.2d 727 (1977); Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971). Appellant specifically complains that the Commonwealth failed to prove beyond a reasonable doubt that the property was stolen. He contends that the accomplice’s testimony, without any corroboration by the merchants who were allegedly victimized was insufficient.

The thief, probably better than any person in the world, knows whether there was a theft and can so testify, and if the fact finder believes him it establishes the fact that the goods were stolen.

Commonwealth v. Cohan, 177 Pa. Superior Ct. 532, 541, 111 A.2d 182 (1955). See also, Commonwealth v. Gazal, 194 Pa. Superior Ct. 132, 166 A.2d 314 (1960).

The trial court properly instructed the jury that it should exercise caution in evaluating the accomplice’s testimony. Commonwealth v. Mouzon, 456 Pa. 230, 318 A.2d 703 (1974). Nonetheless, the uncorroborated testimony of an accomplice, if credible to the fact-finder, may be a sufficient basis for a conviction. Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980). In this case, the jury chose to believe the accomplice instead of appellant. After reviewing the entire record in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, as we are required to do, Hudson, Id., we find that the evidence was sufficient to support the jury’s finding of guilt beyond a reasonable doubt.

II. Appellant argues that trial counsel rendered him ineffective assistance by informing the jury in his opening statement and by questioning the appellant on the stand about appellant’s prior guilty plea to a charge of theft.

Both sides agree that the applicable controlling principle is stated in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); specifically, that counsel’s assistance may not be deemed constitutionally ineffective if the course chosen by counsel had some reasonable basis designed to assist his client’s cause. In the present case, trial counsel obviously intended to have appellant testify in his own behalf, and, as the affidavit he filed in this case states he informed the jury of appellant’s prior conviction because he anticipated that otherwise the prosecution would raise the issue.

This certainly seems a plausible exercise of judgment by trial counsel under Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) and the many cases that have followed it; evidence of a prior conviction for theft would have been admissible, in the discretion of the trial court, for the purpose of impeaching the appellant’s testimony. The current case is clearly distinguishable from Commonwealth v. Lane, 476 Pa. 258, 382 A.2d 460 (1978), relied upon by appellant. There counsel was found ineffective when, during summation to a judge sitting without a jury, defense counsel made reference for the first time to a prior criminal record. Here counsel was effective in apprising the jury of the prior conviction so as to prevent the prosecution from raising the matter in a light more damaging to appellant.

III. Appellant argues that Van Divner’s testimony, on direct and on cross-examination, that he had received no threats or promises in return for his testimony “must, under the circumstances, be presumed to be false”, and that the Commonwealth failed in its burden of overcoming that presumption.

Two days after the verdict in this present case, Van Divner’s attorney filed a Motion for Accelerated Rehabilitative Disposition. The Commonwealth consented to the disposition. On January 4, 1978, Van Divner was placed on probation.

Appellant relies upon Commonwealth v. Hallowell, 477 Pa. 232, 383 A.2d 909 (1976). There an essential prosecution witness, denied on cross-examination that he had any expectations of leniency. In Hallowell, it was developed after the trial of Hallowell, that the witness had been promised before the trial, that the Commonwealth would recommend a lesser sentence for the witness if he cooperated in Hallowell’s trial, all of which was subsequently accomplished for the witness. The Supreme Court found that the prosecuting attorney had an affirmative duty to correct the testimony of a witness which he knew to be false. The Supreme Court therefore reversed the conviction in Hallowell and ordered a new trial.

Attached as an exhibit to appellant’s petition for permission to file post trial-motions nunc pro tunc was a reproduction of Van Divner’s ARD motion. On the page where the District Attorney’s signature appears consenting to the motion, there is present a hand written notation to the effect that such consent was pursuant to a plea bargain in return for Van Divner’s testimony against appellant.

The situation before this court is slightly different from the situation present in Hallowell. On the basis of the current record it is unclear when the Commonwealth informed the witness that it would consent to ARD, also the extent of the “plea bargain” is unclear. Did the Commonwealth merely Say it would consider the witness’s cooperation when deciding on ARD or did the prosecution actually promise to go along with ARD? In Hallowell, the record showed plea negotiations were instituted on the day of the arrest and the Commonwealth bound itself to make a specific recommendation at sentencing, which it did. In Commonwealth v. Moehring, 445 Pa. 400, 285 A.2d 487 (1971) it was demonstrated that the prosecution petition to nolle pros the indictment against a witness was filed a month before the defendant’s trial. The petition claimed that the witness would give testimony in the defendant’s case. The nolle pros was granted eleven days after the trial in which the witness testified. A new trial was granted to the defendant.

In comparison, in Commonwealth v. Floyd, 259 Pa. Superior Ct. 552, 393 A.2d 963 (1978), appellant’s claim had no support in the record. Appellant there argued that the Commonwealth should have disclosed offers of leniency in return for testifying. However, there was nothing in the record to show that such promise had been made or carried out. The judgment of sentence was affirmed.

The current appeal is somewhere in between Hallo we 11 and Floyd. Without knowing the essence of the alleged agreement and when it was supposedly consummated, we are not justified in awarding a new trial. Nor do we find it appropriate to affirm the lower court as there is some indication that the testimony may have resulted from a bargain struck between the witness and the prosecution. Therefore we find it necessary to remand for an evidentiary hearing. If the lower court should determine that Van Divner’s testimony was given in conjunction with a Commonwealth’s prior promise to consent to ARD for Van Divner, then it shall award appellant a new trial. Should the court however determine that the witness’s testimony was not related to a plea bargain or that it was a result of the witness’s one sided hope that he would be treated leniently, the trial court shall reimpose the judgment of sentence. The parties may then appeal from the court’s order. We do not retain jurisdiction.

Judgment of sentence vacated and case is remanded for proceedings not inconsistent with this Opinion.

      . Appellant became aware of such ARD request subsequent to the filing of his initial post-verdict motion. The court allowed the nunc pro tunc motion and by stipulation oral argument was supplanted by the filing of briefs.


author: CERCONE, President Judge:

text:
    446 A.2d 927
    COMMONWEALTH of Pennsylvania v. Daniel J. ELIFF, Bruce W. Bechtold, and Richard A. Hogle, Appellants.
    Superior Court of Pennsylvania.
    Submitted March 6, 1980.
    Filed June 11, 1982.

      Edwin D. Strite, Jr., Assistant Public Defender, Chambersburg, for appellants.
    John F. Nelson, Chambersburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   CERCONE, President Judge:

Appellants were charged with possession of a controlled substance with intent to deliver, 35 P.S. § 780-113(a)(30) and criminal conspiracy, 18 Pa.C.S. § 903. In their omnibus pre-trial motions appellants sought to suppress the Commonwealth’s evidence against them contending that it had been variously obtained in violation of their Fourth Amendment right “to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const., 4th Amend. In their motions to suppress, appellants contended that the entry into their residence to arrest appellant Hogle on unrelated charges was (1) illegally effectuated because it was done without a valid warrant for his arrest, and (2) without a valid warrant authorizing a search of the premises, and (3) in the absence of exigent circumstance obviating the need for warrants. They also argued that the entry to effectuate the arrest was improperly executed and that their right to be free from unreasonable intrusions by the state was violated thereby. They further contended that the evidence obtained pursuant to search warrants issued subsequent to the initial entry was “fruit of the poisonous tree,” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and therefore subject to suppression. Appellant Eliff individually contended that certain statements he made were suppressible because of the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1967), and Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Appellant Bechtold separately contended that the search of his room was improper because the room was a separate dwelling and not properly within the scope of the search warrant. The suppression court denied the motions for the suppression of the evidence. The cases against appellants were tried jointly before the same judge who heard the motion for suppression, and without the aid of a jury. The court found defendants guilty on all counts and sentenced each of them to prison terms of one to five years plus fines on the drug charges and probation on the conspiracy convictions to run consecutively to the prison terms. It is from these judgments of sentence that the instant appeal comes before us.

The scope of our review of the denial of a motion for suppression of evidence is firmly established. The suppression court must make findings of fact and conclusions of law in determining whether evidence was obtained in violation of the defendant’s rights. The burden of proving the admissibility of the evidence lies on the Commonwealth’s shoulders; the standard by which the court determines the legitimacy of the search and seizure, and hence the admissibility of the evidence whose suppression has been moved, is that of the preponderance of the evidence. Pa.R.Crim.P. 323(h). On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court’s findings of fact. Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975); Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972); and see Commonwealth v. Burgwin, 254 Pa.Superior Ct. 417, 386 A.2d 19 (1978) (Opinion in Support of Reversal, per Price, J.).

In considering whether the record supports the court’s finding of facts we must restrict ourselves to reviewing the evidence presented by the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. O’Bryant, 479 Pa. 534, 537, 388 A.2d 1059, 1061 (1978); Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978); Commonwealth v. Seibert, 274 Pa.Superior Ct. 184, 418 A.2d 357 (1980). In addition, where the suppression court’s findings are amply supported by the record they may not be disturbed on appeal. Common wealth v. O’Bryant, supra; Commonwealth v. Bundy, supra; Commonwealth v. Seibert, supra. Finally, in deciding whether Fourth Amendment dictates have been abridged, we must consider all of the circumstances of the official intrusion, keeping firmly in mind that the ultimate goal of the Amendment is not the protection of preferred locales, but the protection of individuals and their legitimate expectations of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Moreover, only those with “actual standing” will be heard to complain of alleged Fourth Amendment violations. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 68 L.Ed.2d 619 (1980); Commonwealth v. Sell, 288 Pa.Superior Ct. 371, 432 A.2d 206 (1981).

The Facts

In July of 1977 Agent Joseph Bilansky of the State Bureau of Drug Control began an investigation into the trafficking of illicit drugs in the vicinity of Chambersburg, Franklin County. Among the objects of the investigation were a certain farmhouse in Letterkenny Township and its occupants. On or about July 28, 1977, appellant Hogle, one of the residents of the farmhouse under surveillance, sold an unspecified quantity of marijuana to Agent Joel Hicks, an undercover agent working under the direction of Agent Bilansky. The sale was accomplished in the parking lot of a fast-food restaurant in Chambersburg. Following the purchase of the marijuana from appellant Hogle, Agent Hicks informed Agent Bilansky and Officer Thomas of the Chambersburg Police Department of the transaction. On October 26, 1977 Officer Thomas swore out warrants for Hogle’s arrest based on the information he had obtained from Agent Hicks. The following day Agent Bilansky met Officer Thomas, whereupon the latter informed Agent Bilansky of the warrants for Hogle’s arrest. The two discussed the method they would use in effectuating Hogle’s arrest. They decided that they could effectuate the arrest without assistance if they found Hogle at his mother’s home in Chambers-burg, but that they would need additional manpower to arrest him if they were obliged to do so at the Letterkenny Township farmhouse, because of the occupancy of the house by several persons.

They proceeded to the home of Hogle’s mother. She informed Agent Bilansky that Hogle was not to be found there, but rather, at the farmhouse. They arranged for assistance and agreed to meet the other officers at a rendezvous point near the farmhouse. Before arriving at the rendezvous point, Agent Bilansky and Officer Thomas drove past the farmhouse. The house was lighted and visible from the road. By spying through a first floor window as they drove past, both men were able to discern a group of several people gathered in one of the rooms. Agent Bilansky could not identify any of the occupants but Officer Thomas did observe Hogle among the group. Agent Bilansky and Officer Thomas met Agent Hicks, the undercover agent who made the marijuana purchase from Hogle, and four members of the Chambersburg Police Department, Detective Snively and Officers Haldemann, North and Manns, at the rendezvous point. The latter three were in full uniform. The group proceeded on foot to the farmhouse. Two uniformed officers took up preassigned positions outside the house intended to prevent Hogle’s possible escape. The remainder of the group approached the farmhouse, with Agent Bilansky in the lead. He was wearing his badge on the outside of his denim jacket.

Perceiving the presence of intruders, some dogs kept on the premises raised sufficient ruckus that appellant Eliff, one of the residents of the farmhouse, came out onto the front porch to investigate, leaving the door into the living-room slightly ajar behind him. Just as he emerged from the house Agent Bilansky and the others came onto the porch. Eliff inquired as to what was “going on,” and Bilansky responded by flashing an identification card and stating that he had warrants for Hogle’s arrest. Before Eliff could ask to see the warrant Agent Bilansky and the other law officers had entered the house by the same door through which Eliff had come onto the porch. By Agent Bilansky’s own testimony no more than twenty seconds elapsed from the time he encountered Eliff until he crossed the threshold of the house. The officers entered swiftly, at a pace described by Agent Bilansky as faster than a walk but less than a full run. Eliff followed them into his house, demanding to see the arrest warrant.

Upon entering the livingroom Agent Bilansky shouted to the male (appellant Bechtold) and two females he found there: “Police! Everybody freeze! Put your hands on the top of your heads where we can see them!” Only after entering the livingroom did he smell the odor of burning marijuana. Prompted by the marijuana’s distinctive odor he quickly surveyed the room and observed two hand-rolled cigarettes, a small quantity of vegetable matter which appeared to be marijuana, and some small chunks of compressed matter which he believed to be hashish. He passed through the room, leaving its three occupants in the hands of his associates, and followed by at least one other officer and Eliff, the latter still demanding to be shown the arrest warrant, mounted the stairway to the second story. They found Hogle in the second floor bathroom, placed him under arrest, and took him downstairs to the livingroom, where he was read his Miranda rights. All five occupants of the house were assembled in the livingroom. They were told they would be detained until Agent Bilansky and Officer Thomas could secure a warrant for the search of the house. Eliff, Bechtold and the two women were read their Miranda rights. The five were not permitted to move from the livingroom, nor were they permitted to make any telephone calls. Agent Bilansky and Officer Thomas left at approximately 8:00 p. m. to obtain a search warrant. Agent Bilansky and Officer Thomas secured the search warrant at 9:31 p. m. and returned to the farmhouse. The lessee of the farmhouse, Eliff, was read the search warrant and again advised of his Miranda rights. The search began at 9:56 p. m. and lasted until 2:45 a. m. the next day.

At approximately 11:00 p. m. Hogle was taken for arraignment. At an unspecified time after 9:56 p. m. the two women were released from detention and permitted to leave the premises. In the course of the search quantities of hashish, marijuana, LSD, cocaine and heroin were found together with scales and weights, plastic bags, currency, records, pills, capsules, dried mushrooms and sundry other drugs and paraphernalia. During the search of Eliff’s room, which was done in his presence, Agent Bilansky discovered some marijuana and voiced an opinion as to its origin; Eliff contradicted him and stated that it had come from elsewhere. At approximately 2:30 a. m. Eliff told Agent Bilansky that they had “... got it all.” While searching Bechtold’s room Agent Bilansky found a padlock on the floor. He demanded to see Bechtold’s keys; upon testing them he found one which fit the padlock and seized it and the lock as evidence of Bechtold’s residence in that room.

At approximately 3:00 a. m. Bechtold and Eliff were transported to the Chambersburg Police Department Headquarters where they were processed and jailed. They had spent seven hours and twenty minutes in police detention, incommunicado. They were arraigned at 6:55 a. m. October 28, 1977. Hogle was arrested at 7:45 a. m. on October 28, 1977 for the charges arising out of the search of the farmhouse.

Questions on Appeal

Appellants contend on appeal that the entry into their home to arrest appellant Hogle was illegally accomplished. They argue that their legitimate expectations of privacy guaranteed by the Fourth Amendment to the United States Constitution were violated by the way in which Hogle’s unwarranted arrest was made. Flowing from that claim is the claim that the marijuana and hashish discovered in plain view once the illegal entry had been made, and the other drugs and drug paraphernalia uncovered as a result of the search of the house made pursuant to a search warrant the probable cause for which was illegally obtained, constitute the fruits of an illegal entry. They argue that all this evidence is “fruit of the poisonous tree” under Wong Sun v. United States, supra, and should have been suppressed. Finally, they contend that it was error not to suppress this evidence and that they should be awarded new trials as a result. For the reasons stated below, we agree with appellants, and now reverse their convictions and remand the case to the lower court for the appropriate proceedings below.

The lower court concluded that the entry into the farmhouse was legal because the police officers had probable cause for the arrest and knew Hogle to be present when the entry was made. The court also concluded the officers did not violate appellants’ constitutional right to be free from unreasonable searches and seizures for the same reason. Thus, it concluded that no warrant was necessary £o arrest Hogle in his home. The United States Supreme Court and the Supreme Court of Pennsylvania have both concluded otherwise. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978). The suppression court did not consider the question of warrantless entry and arrest where there are exigent circumstances despite the contention in the pre-trial motions that no such circumstances were present. However, on post-verdict motions the court concluded that there had been exigent circumstances present to allow the entry, citing Dorman v. U.S., 435 F.2d 385 (D.C.Cir.1970). Appellants contend that this conclusion was erroneous. We need not discuss the question because the Dorman holding is inapplicable to this case. This is so because of, the Pennsylvania Supreme Court’s ruling in Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980).

The Pennsylvania Supreme Court followed Dorman when it decided Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), and held that an arrest warrant is necessary to arrest a suspect in his own home absent exigent circumstances. The Court applied Williams retroactively in the case of Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979). Despite its retroactive application of the Williams rule in Wagner the Court held in Commonwealth v. Miller, supra, that the rule is not to be applied retroactively, but rather prospectively from the date of the decision of Williams—November 18, 1978. Cf. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).

Additionally, the suppression court concluded that the method used to effectuate Hogle’s arrest was proper, that the police thus had a right to enter the house as they did, that once having so entered they saw in plain view items which they reasonably believed to be controlled substances, and thus that the search warrant issued properly. Accordingly, it denied suppression of the evidence on that ground. Appellants assigned this ruling by the suppression court as error in their post-verdict motions, where it was again denied. Having properly preserved the question for appeal, it is now asserted in this Court.

Prior to Williams the law in Pennsylvania was that no warrant was necessary to arrest a suspect in his own home when the police had probable cause to arrest. Thus, when the police believed a suspect to be present in his home they were permitted to enter the home and effectuate the arrest without a warrant. Reduced to its essence under the prior law, a warrantless arrest of a suspect in his home was the legal equivalent of a warranted arrest. Both types of arrest are controlled by the Fourth Amendment’s prohibition against unreasonable searches and seizures. U.S.Const., 4th Amend.

One line of cases in this Commonwealth makes it clear that in the absence of exigent circumstances precipitate entry by the police into a suspect’s home is not permitted. These are the familiar “knock and announce” cases. See Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968); Commonwealth v. McCloskey, 217 Pa.Superior Ct. 432, 272 A.2d 271 (1970). Concerning the exigent circumstances permitting waiver of the knock and announce rule, we recently stated:

Although exigent circumstances must be determined on a case-by-case basis, certain factual situations have been found to warrant a waiver of the “knock and announce” rule. These include when there is a possibility of harm to the officers or occupants of the premises, Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975), Commonwealth v. McKeever, 229 Pa.Super. 35, 323 A.2d 44 (1974); where unusual activity leads to a reasonable belief that evidence is being destroyed, Commonwealth v. Harper, 233 Pa.Super. 294, 334 A.2d 761 (1975); Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); or where the police have valid grounds for being virtually certain that the persons inside the premises to be searched already know the identity and purpose of the police. In such a case, useless gestures by the police are unnecessary. Commonwealth v. Fisher, 223 Pa.Super. 107, 296 A.2d 848 (1972), Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958).

Commonwealth v. Beard, 282 Pa.Superior Ct. 583, 586-587, 423 A.2d 398, 400 (1980) (Opinion by Montgomery, J.; Dissenting Opinion by Cercone, P.J.).

A second line of cases that holds that “even with a proper announcement [of the police’s identity and purpose] an occupant of the premises must be given a reasonable period of time within which to surrender his privacy, absent exigent circumstances.” Commonwealth v. Cerulla, 223 Pa.Superior Ct. 24, 296 A.2d 858 (1972). In Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971) the Pennsylvania Supreme Court held that a lapse of ten to fifteen seconds between the time the police announced their identity and possession of a search warrant, and their unconsented entry (forcible) into the suspect’s home was not long enough to meet constitutional muster. The Supreme Court reached a similar conclusion in Commonwealth v. Newman, supra. In Common wealth v. Riccardi, 220 Pa.Superior Ct. 72, 283 A.2d 719 (1971) this Court held that where the police had tricked the suspect into opening his door and then forced their way in when he saw them and tried to close it, and where they did so without properly announcing themselves, then the search made pursuant to the warrant they carried was illegal and the evidence should have been suppressed. In deciding Riecardi we relied on Commonwealth v. DeMichel, supra and United States ex rel. Ametrane v. Gable, 276 F.Supp. 555 (E.D.Pa.1967) aff’d, 401 F.2d 765 (3rd Cir. 1968), wherein it was held that a person must be given a reasonable opportunity to surrender his privacy voluntarily.

Admittedly, the cases cited here concern the execution of search warrants, but we see no reason to differentiate between one type of official intrusion and another: they differ only in degree not in kind. As Justice Stevens stated, writing for a majority of the Court in Payton v. New York :

. .. [T]he critical point is that any differences in the intrusiveness of entries to search and entries to arrest are merely ones of degree rather than kind. The two intrusions share this fundamental characteristic: the breach of the entrance to an individual’s home. The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home—a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their.. . houses. . . shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own house and there be free from unreasonable government intrusion.” Silverman v. United States, 365 U.S. 505, 511, 5 L.Ed.2d 734, 81 S.Ct. 679, 97 A.L.R.2d 1277. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house.

Id., 445 U.S. 573, 589-590, 100 S.Ct. 1371, 1381-1382, 63 L.Ed.2d 639, 652-653. Clearly there is no reasonable basis for distinguishing police conduct permissible when effectuating an arrest without a warrant from that which is permissible when a warranted arrest is made, except where exigent circumstances adhere. It would be anomalous to require the police to observe certain proprieties when executing an arrest warrant but allow them to skirt those requirements simply by effectuating the arrest without a warrant. Thus, it can be said that, in the absence of exigent circumstances, the police must always announce their presence and purpose, and wait a reasonable time to allow a voluntary response to the knock. Absent exigent circumstances, a fifteen second delay between the police’s announcement of their identity and intention to arrest a person in his home (with or without a warrant) and their entry into the home without consent is no less unconstitutional an intrusion than one where the police’s intention is to search the premises.

Instantly, it becomes clear that unless there were exigent circumstances permitting the official intrusion the police’s entry was illegal, coming as it did within less than half a minute of the announcement of their intention to arrest Hogle, where that announcement was made to one who did not consent to the entry and who was not the suspect the police were seeking. It would follow therefrom that if the entry had been illegal, then the officers’ observation of the marijuana in the living room was fruit from the poisonous tree, and thus would invalidate the search warrant and require the suppression of all the physical evidence. We proceed now to determine whether there were such exigent circumstances as to permit this otherwise impermissible intrusion into appellants’ privacy.

Exigent Circumstances

The reasonableness of searches and seizures must necessarily be determined on a case-by-case basis because of the myriad factual settings which face the police as they attempt to preserve the peace and ferret out crime. As Judge Leventhal wrote in Dorman v. United States:

Terms like “exigent circumstances” or “urgent need” are useful in underscoring the heavy burden on the police to show that there was a need that could not brook the delay incident to obtaining a warrant, and that it is only in the light of those circumstances and that need that the warrantless search meets the ultimate test of avoiding condemnation under the Fourth Amendment as “unreasonable.”

Id., 435 F.2d at 392. The Dorman court, recognizing that the “numerous and varied street fact situations” do not allow for the development of single test by which to measure the reasonableness of warrantless arrests, went on to enumerate several factors which have been judged important in making such determinations. Among the factors the Dorman court considered were: (1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is a strong reason to believe that the suspect is within the premises being entered, (5) whether there is likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, (7) and the time the entry was made. See Dorman v. United States, supra, Cf. Commonwealth v. Williams, supra; Commonwealth v. Wagner, supra. This “checklist” approach, although fairly widely accepted, has been criticized as being too inflexible and disconsonant with the needs of the police officer in the street. Other courts have adopted a “totality of the circumstances” test. See e.g., United States v. Flickinger, 573 F.2d 1349 (9th Cir.), cert. denied, 439 U.S. 836, 99 S.Ct. 119, 58 L.Ed.2d 132 (1976). This test has also been criticized, however, not for its inflexibility but for its lack of certainty and direction to the police officer.

We recognize that the courts in Dorman and Flickinger were considering the exigencies which might permit warrantless home arrests, and thus are not strictly applicable to this case where the question is not the lack of a warrant but the method of effectuating the arrest. Here we are concerned with a legal setting akin to the cases concerning the knock and announce rule, its requirements and accompanying restrictions on police action, and the exigencies permitting its waiver. Nevertheless, we find the analysis in those cases instructive and shall rely on them to determine whether there were exigent circumstances present here permitting a waiver of the knock and announce rule. This is not to say that we will ignore the factors normally considered in knock and announce cases. Roughly those same factors were considered in Flickinger as relevant to warrantless home arrests.

The lower-court considered the Dorman exigent circumstances test for the first time on post-verdict motions. It concluded that of the seven factors enumerated in Dorman all but one pointed to a finding that exigent circumstances were present in the case. Our analysis leads us to a different conclusion entirely.

The first factor to be considered under Dorman is the gravity of the offense. The crime for which the police had probable cause to arrest Hogle was a felony: unlawful delivery of controlled substances. This was not a violent crime, and that alone weighs heavily against the police’s entry in this case. Moreover, the crime was committed nearly four months before the police sought to arrest Hogle. Clearly, the police themselves did not believe the crime was grave enough to warrant swift arrest when it was first committed. A few more seconds would not have undone an arrest which had waited four months. The second factor, whether or not Hogle was believed to be armed, was decided by the lower court to weigh against the entry, and we find that we are in accord with that decision. As to the third factor, it is clear that the officers had more than probable cause to arrest Hogle since they sought to charge him with a felony committed in the presence of one of their number. The fourth factor also favors the entry—-the arresting officers knew their suspect was present in the house because they had seen him through a window. The fifth factor, the likelihood of the suspect’s escape if his capture were not quickly accomplished, is entirely lacking. Hogle did not know that he was wanted. Even if his mother had told him about Officer Bilansky’s visit to the house in Chambersburg, she could not have known that Bilansky was a police officer or that he had been there to arrest Hogle, since he had come undercover. Furthermore, the crime for which he was wanted had occurred some months before and Hogle had not left the jurisdiction. There was no reason to believe that he would suddenly flee. Of course, once the police had arrived at the scene it would have been reasonable for them to believe that Hogle might have tried to avoid the arrest. This eventuality was covered by the stationing of additional officers outside the various avenues of potential escape. Having covered Hogle’s possible escape routes, and without indication that he was trying to flee, there was little reason to rush the house to prevent his escape. As for the sixth factor, the entry was peaceable although accomplished with guns drawn; no one was injured, no doors broken, no shots fired. Nonetheless, entry was made without the consent of the residents and thus this factor cannot be said to weigh entirely in the Commonwealth’s favor. Finally, the entry to make the arrest was made in the early evening, and although it was dark it was too early to have aroused the house’s residents from their beds.

Factors three, four, and seven weigh in on the Commonwealth’s side of the balance. On the other side of the scale we find factors two and five. The remaining factors, one and six, tip neither way. Applying a balancing test, we find that the fact that the crime for which Hogle was being arrested was several months old, that he was not a fugitive, and that there were no indications of an attempt to flee arrest, as well as the fact that the police did not suspect him of being armed outweigh the other factors, and show that under this analysis no exigent circumstances were present.

We turn now to the “totality of the circumstances” test, as it may be relevant to the knock and announce rule. As with the Dorman test, the possibility of the suspect’s flight is a relevant factor under this test. As we have seen, there was little likelihood of Hogle’s flight, and what chance there was had been provided for. Nor was there any indication that he attempted to flee. We have seen that the police did not suspect Hogle was armed, accordingly, there was little reason to expect harm either to the occupants of the house or to police personnel. Neither did the police have reason to fear the destruction of evidence pertinent to the crime for which Hogle was sought. When Agent Bilansky purchased the drugs from Hogle in July of 1977 the police had all the evidence they would have needed to insure Hogle’s conviction. Moreover, since the police had not secured a search warrant prior to the entry of the house, it is reasonable to conclude that they had no reason to believe that there were large quantities of illicit drugs present, and thus no reason to fear their destruction. Furthermore, there was no need for immediate police action otherwise demonstrated. The totality of the circumstances thus point away from a finding of exigent circumstances permitting a waiver of the knock and announce rule.

Having found no exigency which would permit the waiver of the knock and announce requirement of the Fourth Amendment we are forced to decide the reasonableness of the police’s entry into the appellants’ household within twenty seconds of their arrival and announcement of their identity and purpose. In light of the holdings in Commonwealth v. DeMichel, supra, Commonwealth v. Newman, supra and that line of cases, we are constrained to conclude that the entry into appellants’ household was precipitous and hence illegal.

Because the entry was unreasonably effectuated, all the evidence garnered as a result ought to have been suppressed. See Wong Sun v. United States, supra. Clearly, the lower court erred when it refused appellants’ suppression and post-trial motions. Accordingly, we reverse their convictions and remand the case for appropriate disposition below.

Reversed and remanded.

WATKINS, J., dissents.

      . 35 P.S. § 780-113(a)(30) reads:
      Prohibited acts; penalties
      (a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
      (30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

      . 18 Pa.C.S. § 903 reads in pertinent part:
      Criminal Conspiracy
      (a) Definition of Conspiracy.—A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
      (1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
      (2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

      . Appellants were all residents of the house in which they were arrested. The police knew that Eliff was the house’s lessee, and that Hogle was living there. See n. 10 infra.

      . The Commonwealth has stipulated that the warrants were invalid because Officer Thomas failed to make a showing of sufficient probable cause to the magistrate to justify their issuance. The suppression court accepted the stipulation, although reluctantly.

      . The farmhouse in question contains a livingroom, hallway, kitchen and dining room on the first floor; three bedrooms, a hallway and a bathroom on the second floor and a third floor attic. There were no partitions dividing the house into separate quarters nor are there any barriers or partitions separating the bedrooms other than their walls and doors.
      Because the magistrate in whose district the farmhouse is situate could not reach his office for some time, the officers went to a magistrate in a nearby district who issued the warrant for the search of the entire house.

      . The suppression court’s finding of fact on this point reads: “Subsequent to defendant Eliff having been advised of his Miranda rights, at least once, he was taken to his bedroom to observe the search of that room____ The agent found a substances [sic] he believed to be marijuana and stated either, ‘It looks like Columbian,’ and Eliff volunteered, ‘No, it’s Acapulco Gold,’ or the agent stated, ‘It looks like Acapulco Gold’ and Eliff volunteered, ‘No, it’s Columbian.’ The agent immediately reminded Eliff of his Miranda rights.”

      . This was of significance because Bechtold originally denied he lived there. He was not taken to observe the search of the room in which the padlock was found until after Agent Bilansky discovered, in searching the room, a letter addressed to Bechtold at the farmhouse.

      . Speaking for the Court in Commonwealth v. Beard, supra, Judge Montgomery cogently stated:
      [P]rior to making a forcible entry, the officer must, absent exigent circumstances, announce his identity and purpose to provide the occupant with a reasonable opportunity to surrender his privacy. Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971), Commonwealth v. Easton, 231 Pa.Super. 398, 332 A.2d 448 (1975). “The purpose of this announcement rule is that ‘... the dignity and privacy protected by the fourth amendment demand a certain propriety on the part of policemen even after they have been authorized to invade an individual’s privacy.’ ” Commonwealth v. DeMichel, supra, 442 Pa. 561, 277 A.2d at 163, quoting United States ex rel. Ametrane v. Gable, 276 F.Supp. 555, 559 (E.D.Pa.1967) aff’d, United States ex rel. Ametrane v. Gable, 401 F.2d 765 (3rd Cir. 1968).
      This announcement requirement not only reflects the undiluted respect in which we hold an individual’s right to privacy, but it also serves to reduce the potential for violent confrontations between officers and occupants and to guard against needless destruction of private property. Commonwealth v. Duncan, 485 Pa. 340, 402 A.2d 662 (1979). Commonwealth v. Perry, 254 Pa.Super. 549, 386 A.2d 86 (1978); United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1973).
      Id., 282 Pa.Super. at 586, 423 A.2d at 400.

      . As residents of the farmhouse, it is clear that all three appellants had legitimate expectations of privacy which could have been violated by an improper entry and thus have proper standing to raise the issue. See United States v. Salvucci, supra; Commonwealth v. Sell, supra.

      . See e.g. Commonwealth v. Williams, supra. And see, e.g., United States v. Campbell, 581 F.2d 22 (2d Cir. 1978); United States v. Reed, 572 F.2d 412 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978); Salvador v. United States, 505 F.2d 1348 (8th Cir. 1974); United States v. Shye, 492 F.2d 886 (6th Cir. 1974); Vance v. North Carolina, 432 F.2d 984 (4th Cir. 1970).

      . See, LaFave, “Case-by-Case Adjudication” versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup.Ct.Rev. 127, 141, where he says:

        Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, and, and buts or requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges feed, but they may be literally impossible of application by the officer in the field.

      . See Harbaugh & Faust, “Knock on Any Door”—Home Arrests after Payton and Steagald, 86 Dick.L.Rev. 191, 225 (1982).
      Harbaugh and Faust have proposed a test, which they claim will preserve the flexibility of the “totality of the circumstances” test and the definitiveness of the Dorman “checklist.” It reads:
      When a law enforcement officer has probable cause to believe a person has committed a crime classified as a felony and has probable cause to believe that person is in his home or the home of another person, the officer may effectuate an arrest of that person without procuring an arrest warrant for that person or a search warrant for the home if, upon learning of facts sufficient to form a probable cause belief that the person is in his home or the home of another, the officer (a) has probable cause to believe that a delay to procure an appropriate warrant will gravely endanger the officer or another person, or result in the destruction or removal of evidence, or the escape of the suspected felon, and (b) enters or attempts to enter the home where the person is believed to be in a reasonable manner within the time it would have taken him to procure an appropriate warrant under the then existing circumstances.

        Id. at 226 (Footnote omitted).
      We are ourselves reluctant to characterize the factors enumerated in Dorman v. United States as a checklist. The seven factors set out by Judge Leventhal were specifically stated to be relevant to the Dorman factual setting. Thus, Dorman itself differs little in approach from the so-called “totality of the circumstances” standard adopted by the Ninth Circuit in United States v. Flickinger, supra.

      . We have already enumerated the factors generally held relevant to knock and announce cases, infra. Among them are: possibility of harm to occupants of the premises, or to police officers; the possible destruction of evidence relevant to proving the crime of which the object of the search is suspected. To this list, the court in Flickinger added the possibility of flight by the suspect (a factor not relevant to evidence, although logically analogous to the destruction of evidence).

      . To conclude otherwise would be to permit unreasonable entries in myriad cases, since there is almost always a potential for escape once the police have begun an arrest. Cf. Commonwealth v. Beard, 282 Pa. Superior Ct. 583, 423 A.2d 398 (1980). This Court held there (with this writer dissenting) that evidence was properly suppressed where the police’s method of executing a search warrant was a clear attempt to skirt the knock and announce rule by precipitating exigent circumstances permitting them to enter a dwelling forcibly.
      The instant case does not fall four-square with Beard. In Beard the police created the exigent circumstances by virtue of their method of executing the warrant. In Beard there was reason to believe that evidence was being destroyed—the exigent circumstance which would normally have permitted the entry—and that appellants’ actions were precipitated by the police.
      In this case there was neither evidence nor reason to believe that Hogle was trying to escape when the police entered the house. Although I expressed misgivings in my dissent to Beard, id., 282 Pa.Super. at 590-591, 423 A.2d at 402, to the proposition that the police could create the exigent circumstances and thereby cause the ultimate suppression of the evidence, we need not concern ourselves with them here, since here there were no exigent circumstances of the kind found in Beard.

        We reserve comment on the propriety of a suppression ruling involving evidence obtained after entry into a dwelling, where there was reason to believe that the suspect was attempting to escape, and where the attempt to escape resulted from the police’s action in seeking to effectuate an arrest, until that case is properly prosecuted.

      . Commonwealth v. Wagner, supra; Commonwealth v. Pytak, 278 Pa.Superior Ct. 476, 420 A.2d 640 (1980); Commonwealth v. Fladger, 263 Pa.Superior Ct. 538, 398 A.2d 707 (1979).

      . In the absence of a search warrant, we must presume the police had no probable cause to search for drugs, since to conclude otherwise would be tantamount to finding that the police intended to violate the Fourth Amendment rights of the appellants. We are loathe to arrive at such a conclusion in absence of substantiating evidence.


text:
    446 A.2d 938
    COMMONWEALTH of Pennsylvania v. John GULA, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 7, 1981.
    Filed June 11, 1982.

      Stephen P. Ellwood, Pottsville, for appellant.
    Adam Bavolack, Assistant District Attorney, Pottsville, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WIEAND and HOFFMAN, JJ.
   CERCONE, President Judge:

This matter is an appeal from the order of the Court of Common Pleas of Schuylkill County dismissing an appeal taken by appellant, John Gula, Jr., from a summary conviction for placing an official certificate of inspection on a vehicle which was allegedly not in compliance with the provisions of the Vehicle Code and the regulation of the Department of Transportation. After a hearing de novo, the lower court entered this order:

AND NOW, this 23rd day of June, 1980, following a hearing on the merits, it is ORDERED AND DECREED that the appeal of the defendant is dismissed.

This Court has held repeatedly that in an appeal from a summary judgment to the court of common pleas, the judgment of common pleas court should be either “guilty” or “not guilty.” As we wrote in Commonwealth v. Carter, 230 Pa. Superior Ct. 401, 403, 326 A.2d 530, 531 (1974):

A judgment affirming the justice of the peace, dismissing the appeal, or sustaining the appeal, is not sufficient and will be reversed. Commonwealth v. Alton, 209 Pa.Super. 168, 224 A.2d 792 (1966); Commonwealth v. Young, 184 Pa.Super. 658, 135 A.2d 774 (1957); Commonwealth v. Miller, 173 Pa.Super. 168, 96 A.2d 153 (1953).

Furthermore, an order adjudicating guilt must be entered, even though it is implicit in the lower court’s actions and opinion that the court considered the evidence supportive of a finding of guilt. Commonwealth v. Carter, supra; Commonwealth v. Wenyon, 230 Pa. Superior Ct. 342, 326 A.2d 633 (1974).

Reversed and remanded with direction to the lower court to enter a finding of guilty or not guilty, and if guilty to impose sentence. This court does not retain jurisdiction.

      . This act, if proved, is a violation of the Vehicle Code, 75 Pa.C.S. § 4727(b).

       We additionally note that if appellant is ultimately found guilty, he is to be allowed to file post-trial motions in accordance with Pa.R.Crim.P. 1123 and Commonwealth v. Koch, 288 Pa. Superior Ct. 290, 293, 431 A.2d 1052, 1053 (1981). See also, Commonwealth v. Gamarino, 299 Pa. Superior Ct. 143, 445 A.2d 189 (1982).


author: PRICE, Judge:

text:
    446 A.2d 939
    COMMONWEALTH of Pennsylvania, Appellant, v. Joseph PANDOLFO.
    Superior Court of Pennsylvania.
    Submitted June 13, 1980.
    Filed June 11, 1982.

      Steven H. Goldblatt, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    J. Hugh O’Donnell, Philadelphia, for appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   PRICE, Judge:

This is an appeal by the Commonwealth from an order granting appellee’s motion in arrest of judgment. For the following reasons the order is reversed.

Appellee was convicted in a nonjury trial of aggravated assault and disorderly conduct. In response to appellee’s post verdict motions the court arrested judgment as to the degree of aggravated assault. In reviewing such a motion we must examine all the evidence in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). The standard used in our evaluation is “[wjhether accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed the jury could properly have based its verdict; it would be nonetheless insufficient in law to find beyond a reasonable doubt that the appellee is guilty of the crime charged.” Commonwealth v. Froelich, 458 Pa. 104, 106, 326 A.2d 364, 365 (1974). See also Commonwealth v. Luther, 266 Pa.Superior Ct. 240, 403 A.2d 1329 (1979); Commonwealth v. Kirkman, 264 Pa.Superior Ct. 170, 399 A.2d 720 (1979).

Viewing the evidence in accordance with the foregoing standard, the following facts were adduced at trial. On October 10, 1978 appellee, Joseph Pondolfo, was at Kelli’s Bar in Philadelphia. At the bartender’s request, he was physically removed from the bar after causing a disturbance. Shortly thereafter, appellee started an altercation outside the bar with one James Hamill. Officer Charles Gorski subsequently exited the bar, stepping between appellee and Mr. Hamill. Appellee swung repeated punches at Officer Gorski, striking him with his fist. Officer Gorski informed appellee that he was a police officer and ordered him to desist. Appellee then cursed Officer Gorski, struck him several times on his face and head, and slashed his face with a pocketknife. As a result of this attack Officer Gorski received ten sutures and was unable to return to full active duty for two weeks.

Appellee was found guilty of felonious aggravated assault. 18 Pa.C.S.A. § 2702(a)(2). He claimed, inter alia, in his post verdict motions that the evidence did not support a finding of intent to cause “serious bodily injury.” Id. Upon reconsideration the court below concurred with appellee’s contention and reduced the verdict to misdemeanor aggravated assault, which merely requires a finding of “bodily injury.” 18 Pa.C.S.A. § 2702(a)(3). We disagree.

In pertinent part, aggravated assault is defined as follows:

(a) ... A person is guilty of aggravated assault if he:
(2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to a police officer making or attempting to make a lawful arrest;
(3) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to a police officer making or attempting to make a lawful arrest.
(b) ... Aggravated assault- under paragraphs (a)(1) and (a)(2) of this section is a felony of the second degree. Aggravated assault under paragraph (a)(3) and (a)(4) of this section is a misdemeanor of the first degree.

18 Pa.C.S.A. § 2702 (emphasis added).

Serious bodily injury is “[bjodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. § 2301. See also Commonwealth v. Phillips, 269 Pa.Superior Ct. 537, 410 A.2d 832 (1979). In order for appellee’s conviction to be sustained, however, it is not necessary for Officer Gorski to have actually incurred serious bodily injury. Rather, “the charge of [felonious] aggravated assault can be supported ... if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury.” Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, 889 (1978). “[I]t is well settled that intent may be proven by direct or circumstantial evidence.” Commonwealth v. Mayo, 272 Pa. Superior Ct. 115, 127, 414 A.2d 696, 702 (1979). See Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975).

Instantly, appellee’s attack to the officer’s face with a pocketknife presented a threat to the officer’s vision. Moreover, the repeated blows to a portion of the body as vital as the head exhibited an intent to inflict serious bodily injury. It was, therefore, properly within the purview of the trial court as factfinder to find appellee guilty of felonious aggravated assault. The court’s subsequent reversal of its verdict on the basis of insufficient evidence was, accordingly, error. The order of the court of common pleas is reversed.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 5503.

      . In Commonwealth v. Meadows, 471 Pa. 201, 205 n.5, 369 A.2d 1266, 1268 n.5 (1977), our supreme court expressly applied this standard to a nonjury trial.

      . The pocket knife used by appellee contained a small blade, a screwdriver, a nailfile and a bottle opener. Because of the nature of the assault, we find the size of the blade irrelevant in determining the degree of aggravated assault.

      . The record is unclear whether Officer Gorski was, in fact, “making or attempting to make a lawful arrest.” 18 Pa.C.S.A. § 2702(a)(2)(3). This issue, however, has not been raised on appeal. See generally Morean v. Duca, 287 Pa.Superior Ct. 472, 430 A.2d 988 (1981); Commonwealth v. Tolleson, 462 Pa. 193, 340 A.2d 428 (1975).

      . Cf. Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978) (a single blow to the head was not sufficient to show intent to cause serious bodily injury). But see Commonwealth v. Kibe, 258 Pa.Superior Ct. 353, 392 A.2d 831 (1978) (lone woman in parking lot placed in fear of impending rape, ordered into car and upon her refusal struck in face was sufficient to establish intent to inflict serious bodily injury).


author: WIEAND, Judge:

text:
    446 A.2d 941
    COMMONWEALTH of Pennsylvania v. Earl T. KELLY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 28, 1981.
    Filed June 11, 1982.

      Edward F. Kane, Norristown, for appellant.
    David McGlaughlin, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

Can the crime of theft by receiving stolen property be committed by a person who retains possession thereof after he or she has acquired knowledge or reason to believe that such property has been stolen even though the initial possession thereof was acquired innocently? This is the principal issue raised in this appeal following conviction for theft by receiving a stolen piece of equipment known as a Case Backhoe. The trial judge instructed the jury that the crime could be committed by appellant even if he came into possession of the stolen equipment innocently if subsequent thereto he learned that the equipment had been stolen and nevertheless retained possession. We agree that this instruction was correct, and, because appellant’s remaining contentions are without merit, we affirm the judgment of sentence.

In November, 1978, a Case Backhoe, owned by Danella Equipment Rental and valued at $38,000.00, was stolen from a site where work was being done for Philadelphia Electric Company. On October 20, 1979, police found the stolen backhoe on premises of Globe Disposal Company in Montgomery County. Earl T. Kelly, the owner of Globe Disposal Company and the appellant herein, told police that an unknown male person had requested and obtained permission to leave the backhoe on the premises because it was not functioning properly. The backhoe was left on Kelly’s premises in January or February, 1979, and remained there until the police found it. Other evidence was produced from which a jury could infer that in the interim appellant acquired reason to believe that the backhoe had probably been stolen.

Section 3925 of the Crimes Code provides:

A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

The trial court read this section to the members of the jury and then instructed them as follows:

Well, members of the jury, this can be a continuing offense. In other words, we think of this offense normally in terms of one who receives property, knowing at the time he received it, that it was stolen property.
The common sense is the classic example of that. But there are other varieties of committing this' offense. If, for an example, you receive property, and you don’t know it’s stolen, but thereafter you either learn that it was stolen, or you have reasonable grounds to believe that it was probably stolen, and you do nothing about it, and continue to retain the property, you are still guilty of this offense.

Appellant contends that this instruction was erroneous. He argues that in order to convict of theft by receiving stolen property, the Commonwealth must prove that the accused had guilty knowledge when the property was received.

Knowledge that property has been stolen or a belief that it has probably been stolen is an essential element of the crime of receiving stolen property. Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973). However, the necessary mens rea may arise following actual receipt of the property; it need not exist at the very moment of reception. The statute, by its express terms, makes it criminal to “receive, retain or dispose” of stolen property. Thus, a person may be found guilty of receiving stolen property if he intentionally retains property of another knowing, or having reasonable cause to know, that it has been stolen. He retains it if he “hold[s] or continue[s] to hold [the stolen property] in possession or use.” Websters Third New International Dictionary, 1965.

In Commonwealth v. Farrar, 271 Pa.Super. 434, 413 A.2d 1094 (1979), a panel of this Court was asked to consider the nature of the offense in order to determine (1) whether the courts in Pennsylvania had jurisdiction to try a defendant who had received stolen property in Maryland before moving, with the goods, into Pennsylvania, and (2) the act which triggered the running of the statute of limitations. The Court held that the retention of stolen property is a “continuing” offense which does not terminate until the stolen property is taken from the accused. See also Commonwealth v. Hawkins, 294 Pa.Super. 57, 64, 439 A.2d 748, 752 (1982); Williams v. Superior Court of Los Angeles County, 81 Cal.App.3d 330, 146 Cal.Rptr. 311 (1978); State v. Raffone, 161 Conn. 117, 123, 285 A.2d 323, 327 (1971); People v. Dickerson, 21 Ill.App.3d 977, 983, 316 N.E.2d 519, 525 (1974), rev’d on other grounds, 61 Ill.2d 580, 338 N.E.2d 184 (1975); State v. Ellerbe, 217 La. 639, 47 So.2d 30 (1950); Commonwealth v. Carroll, 360 Mass. 580, 585, 276 N.E.2d 705, 709 (1971); State v. Lawrence, Minn., 312 N.W.2d 251, 253 (1981); State v. Davis, 302 N.C. 370, 374, 275 S.E.2d 491, 494 (1981); State v. Hoffman, 15 Or.App. 524, 528, 516 P.2d 84, 86 (1974).

An issue similar to that in the instant case arose in the case of Commonwealth v. Meyers, 64 Lanc.L.Rev. 381 (1975). There, stolen car parts were discovered in a garage on the defendant’s property. Investigating police informed the defendant that the parts had been stolen and that the police would return the next day with a warrant. When they returned, they found the parts gone, but a pile of burned debris, which included car parts, was found on the property. There was no proof that the defendant had received the parts knowing of their origin; however, the evidence clearly showed that he had disposed of them, in violation of 18 Pa.C.S. § 3925, after learning that they had been stolen.

It seems clear from the langixage of the statute that the crime of theft by receiving stolen property includes the situation where an accused innocently receives stolen property but continues to retain it after he or she has learned or acquired reason to believe that the property was stolen. We conclude, therefore, that the instructions of the trial court were correct.

Appellant also contends that the court erroneously instructed the jury that he had acknowledged possession of the backhoe. The defense submitted a point for charge, which was affirmed by the court, as follows:

Number Two, is affirmed and reads as follows:

“In order to convict the defendant, you must be convinced beyond a reasonable doubt that the defendant who appears before you today was in possession of the back-hoe which is the subject matter of the two informations.”

The court then added this comment:

Well, that is true, members of the jury, though I do not see that as much of an issue in the case, though it’s for you, the defendant has acknowledged that he had possession of it.

There was no error in this comment. The evidence, particularly appellant’s oral and written statements, supported the trial judge’s implied suggestion that possession was not the controlling issue in the case. It is properly the function of the trial judge to define and frame for the jury those factual issues which are contested and which require the weighing of conflicting evidence. In order to achieve this, it is frequently advisable to suggest less significance regarding issues where the evidence is not in dispute. Thus, it had been said:

. .. [I]t is always the privilege and sometimes the duty of a trial judge to express his own opinion, including his opinion of the weight of the evidence and effect of the evidence or its points of strength and weakness . . ., provided (1) there is reasonable ground for any statement he may make; and (2) he clearly leaves to the jury the right to decide all the facts and every question involved in the case regardless of any opinion of the court thereon. [Citations omitted].

Commonwealth v. Nesbitt, 276 Pa.Super. 1, 6, 419 A.2d 64, 67 (1980). With respect to appellant’s possession of the backhoe, the trial judge called to the jury’s attention appellant’s admission but, nevertheless, left the issue of appellant’s possession to the jury. There was no error in such an instruction.

Finally, appellant argues that the Commonwealth failed to prove that he was the Earl T. Kelly named in the information. There is no merit in this argument. Identity of name is prima facie evidence of identity of person. Commonwealth v. Cover, 281 Pa. 429, 434, 126 A. 786, 788 (1924); Commonwealth v. Burton, 164 Pa.Super. 158, 161, 63 A.2d 508, 509 (1949). In the absence of a denial, this presumption is sufficient to submit the issue of defendant’s identity to the jury. Commonwealth v. Burton, id., 164 Pa.Super, at 161-162, 63 A.2d at 509. Cf. Commonwealth v. King, 455 Pa. 363, 316 A.2d 878 (1974). In the instant case, moreover, there was evidence of appellant’s identity as the person named in the information. Detective DeHaven repeatedly and interchangeably referred to “the defendant” and “Mr. Kelly.” He testified that “the defendant” was the man with whom he spoke at the Globe Disposal premises, that he informed “Mr. Kelly” of his intention to cause a criminal complaint to be issued, that “the defendant” gave him a written statement, and that he observed “the defendant” sign the statement. Detective DeHaven further stated that the handwriting on the statement was that of “Mr. Kelly.” This evidence was more than sufficient to establish the identity of appellant as the Earl T. Kelly who was in possession of the machine and who was named in the information.

The judgment of sentence is affirmed.

      . In addition to theft by receiving stolen property, appellant was charged with theft by unlawful taking in violation of 18 Pa.C.S. § 3921(a) and dealing in vehicles with removed or falsified numbers in violation of the Vehicle Code of June 17, 1976, P.L. 162, No. 81, § 1, 75 Pa.C.S. § 7103(b). The charge of theft by unlawful taking was dismissed by the magistrate after the preliminary hearing; and the jury acquitted appellant of dealing in vehicles with removed or falsified numbers.

      . Examination of the backhoe disclosed that the equipment had been re-painted and that the manufacturer’s number had been removed. Appellant testified that he had not been concerned about a possible theft or the fact that no one came to get the backhoe because he believed he could use it in his business.

      . The written statement given by appellant to the police was as follows:
      A man came into my office and told me he had a machine that wasn’t running right and could he leave it at my place. I told him he could. He left the machine in my yard and left with another man in a gold colored pickup truck. No one returned for the machine until officer DeHaven came in yesterday (Oct. 25) and told me he had information that it was stolen. The machine was at my place from Jan. or Feb. of 79 to Oct. 25, 1979.


text:
    446 A.2d 945
    J. M. KORN & SON, INC., Appellant, v. FLEET-AIR CORPORATION, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1981.
    Filed June 11, 1982.

      Jacques H. Geisenberger, Jr., Lancaster, for appellant.
    John W. Beyer, Lancaster, for appellee.
    Before SPAETH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

This is an appeal from an order opening a confessed judgment. The order which opened judgment contained two paragraphs. The first paragraph provided that at trial the issues would include “claims, defenses or counterclaims” alleged in defendant’s petition to open the judgment. The second paragraph granted leave to the parties to amend their pleadings generally. We find the first part of the order to be correct; however, the second part, granting leave to amend, is improper. Therefore, we will affirm in part and reverse in part.

Fleet-Air Corporation, the appellee, is a manufacturer of children’s shoes in Lancaster County. J. M. Korn & Son, Inc., the appellant, is an advertising agency, which developed various advertising programs for appellee. In July, 1979, appellee executed judgment notes in favor of appellant for the total sum of $285,022.21. On December 10, 1979, pursuant to warrants of attorney contained in those notes, appellant confessed judgment against appellee for the face amount of the notes. Appellee filed a timely petition to open the judgment, alleging defenses of partial payment, business duress, misrepresentation and breach of contract. An answer was filed conceding, inter alia, that payments had been made. The matter of an agreed order to open the judgment was discussed, but the parties were unable to agree upon the issues to be litigated. The trial court, therefore, issued the following order:

AND NOW, this 22nd day of August, 1980, in consideration of the foregoing, the Court orders that the confessed judgment entered against Defendant on December 11, 1979 be opened. The issues which may be presented at trial include not only the validity of the Judgment Notes but also any other claims, defenses or counterclaims arising out of the parties’ contractual advertising arrangement.
The Court further grants the parties leave to amend their pleadings. Plaintiff may amend its Complaint to include any additional claims it may wish to assert within twenty (20) days of the date of this Order. Defendant will then file its Answer and any affirmative claims it may wish to present in accordance with the Rules of Civil Procedure.

On appeal from this order, appellant concedes that the judgment was properly opened because of payments made and because business duress, if proved, is a defense to the note. Appellant contends, however, that the trial court erred in defining the issues to be litigated at trial and in granting leave to amend the pleadings.

The issues which may be raised at trial upon the opening of a confessed judgment are determined by Pa.R.C.P. No. 2960, which provides in relevant part as follows:

If a judgment is opened in whole or in part the issues to be tried shall be defined by the complaint if a complaint has been filed, and by the petition, answer and the order of the court opening the judgment. There shall be no further pleadings ....

“When a confessed judgment is opened on the basis of the defendant’s petition setting forth his defenses on the merits, defendant may not thereafter amend to include additional defenses, not included within the original defenses. Clarifying or supplementary amendments are permitted.” Goodrich Amram 2d § 2960.1. Cf. Malicia v. Proietta Catering and Cocktail Lounge, Inc., 270 Pa.Super. 342, 411 A.2d 751 (1979).

In the instant case, the issues were framed by appellant’s complaint, which had been filed with the judgment notes, and by appellee’s petition to open and appellant’s answer thereto. Although clarifying amendments to these pleadings may be filed, if necessary and otherwise proper, it would be improper for appellee after judgment had been opened, to amend its petition to assert new defenses or counterclaims. To the extent that the trial court’s order allowed such amendments, it was erroneous.

In the absence of fraud, an unliquidated counterclaim or set-off is not grounds for opening a judgment confessed under a warrant of attorney. Harrison v. Galilee Baptist Church, 427 Pa. 247, 252, 234 A.2d 314, 316 (1967); Harrison v. Stoeckert, 369 Pa. 143, 146, 85 A.2d 154, 155 (1952); McKee v. Verner, 239 Pa. 69, 75-76, 86 A. 646, 648 (1913); G.A.C. Credit Corp. v. Acme Accordion Studios, Inc., 220 Pa.Super. 148, 151, 286 A.2d 678, 680 (1971); McRoberts v. Stadelman, 168 Pa.Super. 489, 492-93, 79 A.2d 119, 121 (1951). The reason for the rule is understandable. “To a judgment there can be no set-off of a debt not in judgment. One judgment may be set off against another, through the equitable powers of the court but to a judgment ripe for execution, there can be but one answer, to wit, payment pure and simple.” Harrison v. Stoeckert, supra 369 Pa. at 146, 85 A.2d at 155, quoting from Thorp v. Wegefarth, 56 Pa. 82, 85 (1868).

In the instant case, the judgment has been opened; and the parties are agreed that opening was proper. The proceedings are now de novo. Dunn v. Orloff, 420 Pa. 492, 503, 218 A.2d 314, 320 (1966); Poelcher v. Link, 375 Pa. 539, 542, 101 A.2d 628, 629 (1954). Considering this posture of the case, there is no rule, substantive or procedural, which prevents the adjudication of the counterclaims asserted by appellee in its petition to open. Rather, the rules pertaining to assumpsit actions are applicable. See Sanctis v. Lagerbusch, 213 Pa.Super. 483, 488, 249 A.2d 919, 922 (1968). The applicable assumpsit rule, found in Pa.R.C.P. 1031(a), permits a defendant to plead as a counterclaim “any cause of action or setoff which he has against the plaintiff at the time of filing the answer ... or which arises from contract or is quasi-contractual.”

The trial court was correct, therefore, when it defined the issues to be decided at trial to include “claims, defenses or counterclaims” pleaded in appellee’s petition to open the judgment. Any other interpretation of the procedural rules would have required two separate trials instead of one in order to adjudicate the respective rights and liabilities of the parties. The record before us discloses no good reason for embarking upon such an absurd misuse of judicial time and resources, not to mention inconvenience to the parties.

Pursuant to the trial court’s order, the litigation can now proceed to trial on the issues framed by pleadings which have already been filed. Those pleadings, however, cannot be amended to allege new defenses or counterclaims.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

      . Appellee has suggested that this appeal is improper. It argues that jurisdiction may not be based on Pa.R.A.P. 311(a)(1), which permits interlocutory appeals as of right from “an order opening, vacating or striking off a judgment ....,” because appellant acknowledges that it was not error to open the judgment. We disagree with so narrow a reading of the rule. The rule authorizes an appeal from “an order opening ... a judgment,” and appellant is appealing from such an order.

      . This rule is complemented by Pa.R.C.P. No. 2959(c) which provides: “A party waives all defenses and objections which he does not include in his petition or answer.”