author: WIEAND, Judge:

text:
    483 A.2d 881
    V. Pinnock BAILEY, III, William Geppert and Joseph Geppert, Appellants v. GIRARD BANK and Alexander E. Wolfington and Wolfington-Chestnut Associates.
    Superior Court of Pennsylvania.
    Submitted July 10, 1984.
    Filed Oct. 26, 1984.

      Charles J. King, Jr., Norristown, for appellants.
    Louis J. Sinatra, Blue Bell, for Girard BK, appellee.
    Donald K. Joseph, Philadelphia, for Wolfington, appellees.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

May the holder of a second mortgage obtain injunctive relief which restrains an assignment of funds which the mortgagor is entitled to receive on grounds that the assignment will render the mortgagor-assignor unable to comply with the terms of the first mortgage and thereby impair the security of the second mortgage? The trial court sustained preliminary objections in the nature of a demurrer and entered judgment in favor of the mortgagor and its assignee. We affirm.

The plaintiffs, V. Pinnock Bailey, III, William Geppert and Joseph Geppert, conveyed premises known as 100-102 Chestnut St. and 108 South Front St., Philadelphia, to Alexander Wolfington and Wolfington-Chestnut Associates, a limited partnership, for $600,000.00 plus one-half the profits to be derived from development of the premises as a residential and commercial project. The sum of $50,000.00 was made as a down payment; the balance was due in November, 1982. A mortgage was given to the plaintiffs to secure the payment of the balance. This mortgage, however, was subordinated to a construction mortgage intended to secure funds which Germantown Savings Bank agreed to advance for construction purposes. The loan agreement required the mortgagor to maintain a construction fund which, with moneys to be advanced by the Germantown Bank, would always remain in an amount sufficient to complete the project. The mortgage held by plaintiffs was also subordinated to an easement for historic preservation made to obtain a grant from the Pennsylvania Historic and Museum Commission for construction and rehabilitation of the building’s facade. Instead of placing the proceeds of this grant into the construction fund, the mortgagor-developer made an assignment thereof to Girard Bank. The consideration for this assignment, if any, has not been alleged. Plaintiffs do allege, however, that the assignment, if completed, will make it impossible for the assignor to maintain the construction fund in an amount adequate to comply with the terms of the loan agreement. They also allege that the holder of the first mortgage, Germantown Savings Bank, has given notice of default to the mortgagor-developer because the construction fund contains inadequate funds.

The present action in equity was brought to enjoin Girard Bank, the assignee, from receiving the proceeds of the Historic Commission’s grant. It also sought to have Wolfington and Wolfington-Chestnut Associates declared constructive trustees of the grant and enjoined from assigning the grant or otherwise diverting the proceeds thereof from the cost of developing the land. Unless an injunction were issued, plaintiffs contended, the first mortgage would be foreclosed, with a resulting divestiture of their second mortgage. Girard Bank filed preliminary objections in the nature of a demurrer. It contended that plaintiffs had failed to state a cause of action and that, in any event, plaintiffs had an adequate remedy at law. Wolfington and Wolfing-ton-Chestnut Associates also filed preliminary objections. On February 4, 1982, the trial court sustained preliminary objections and dismissed the complaint with prejudice. An opinion filed by the trial court after an appeal had been taken discloses the court’s belief that plaintiffs have an adequate remedy at law and also that no cause of action exists against the mortgagor-developer unless the balance due plaintiffs is not paid when due in November, 1982.

Plaintiffs argue on appeal that the provisions of Pa.it. C.P. 1509(c) prohibit the dismissal of a complaint in equity solely because an adequate remedy exists at law. In such case, the rule provides, the action must be certified to the law side of the Court. Although this statement of the rule is unquestionably correct, it has no application in this matter because plaintiffs have failed to state a cause of action either at law or in equity.

The only relief requested by plaintiffs’ complaint is the grant of an injunction restraining the assignment of the Historic Museum grant by the mortgagor-developer to Girard Bank and requiring that the grant proceeds be used for construction purposes. No claim for damages has been made against either party defendant. Plaintiffs in actuality are anticipating and seek to enjoin a default in the terms of a separate, first mortgage to which they are not a party.

When plaintiffs commenced their action against defendants, they were not yet entitled to receive payment of the principal indebtedness secured by the second mortgage. The developer-mortgagor owed no moneys to plaintiffs until November, 1982. Plaintiffs’ remedy, if a default then occurred, was to foreclose the second mortgage. The damages recoverable were those defined in that mortgage.

It is also clear that the relationship between Girard Bank and the plaintiffs is merely incidental. Girard Bank is not contractually obligated in any way to the plaintiffs who hold the second mortgage; and plaintiffs have not alleged a cause of action against the bank in tort. Plaintiffs do not assert that the assignment of the Historic Museum’s grant was wrongful or that Girard Bank is part of a conspiracy with plaintiffs to defraud either plaintiffs or the Historic Museum.

Finally, it is clear that the assignment of the grant does not violate any term or condition contained in the second mortgage. The only mortgage provision alleged to have been violated is the one contained in the loan agreement between Germantown Savings Bank and the mortgagor-developer which requires the maintenance of a construction fund. Plaintiffs were not parties to that agreement, and it is clear that they were not intended to be third party beneficiaries thereof. Although plaintiffs have alleged that if the grant monies are not placed in the construction fund, the mortgagor-developer will not be able to maintain the construction fund at the level required by the mortgagee bank, that can only be a violation of contractual rights held by the first mortgagee. Even the first mortgage and supporting loan agreement, however, contain no requirement that the grant proceeds be paid into the construction fund. The source of the moneys to be placed in the construction fund by the mortgagor has not been predetermined by agreement.

Under these circumstances, can plaintiffs enjoin the assignment of the grant because of the possibility that it will precipitate a foreclosure of the first mortgage? Can the holder of a second mortgage enjoin a default by the mortgagor in the terms of a first mortgage on grounds that a foreclosure of the first mortgage will divest the lien of the second mortgage. We hold that no such cause of action exists.

The law has long held that potential insolvency, in the absence of a contractual provision to the contrary, is not enjoinable. Thus, in Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155 (1978), the Supreme Court held:

In Pennsylvania the insolvency of a defendant does not create a situation where there is no adequate remedy at law. In deciding whether a remedy is adequate, it is the remedy itself, and not its possible lack of success that is the determining factor. Bersch v. Rust, Trustee, 249 Pa. 512, 95 A. 108 (1915). “The fact, if it be so, that this remedy may not be successful in realizing the fruits of a recovery at law, on account of the insolvency of the defendants is not of itself [a] ground of equitable interference.” Heilman v. Union Coal Co., 37 Pa. 100, 104 (1860).

Id,., 482 Pa. at 383, 393 A.2d at 1158.

In the instant case, the moneys due plaintiffs and secured by the second mortgage were not due until November, 1982. If a default occurs in the payment thereof, plaintiffs’ remedy is to foreclose its mortgage. If, in the meantime, the first mortgage is foreclosed, plaintiffs are not powerless to protect themselves. They can protect their investment in precisely the manner anticipated when they agreed to subordinate the lien of their mortgage to that of the Germantown Savings Bank. They can adopt and follow appropriate bidding procedures. In the meantime, they cannot interfere with the mortgagor’s legitimate business dealings with third persons because of the potential effect they may have on the mortgagor’s ability to pay sums secured by the first mortgage.

The order sustaining preliminary objections and dismissing the complaint is affirmed.

      . Pa.RX.P. 1509(c) provides as follows:
      "The objection of the existence of a full, complete and adequate non-statutory remedy at law shall be raised by preliminary objection, if the objection is sustained, the court shall certify the action to the law side of the court. If not so pleaded, the objection is waived.”

      . This appeal was not argued orally; it was submitted on briefs. The briefs do not disclose and we have no way of knowing whether the moneys due in November, 1982 have now been paid.


source: Caselaw Access Project

license: Public Domain

text:
    483 A.2d 884
    COMMONWEALTH of Pennsylvania, v. Timothy DOWNS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 13, 1984.
    Filed Oct. 26, 1984.
    Petition for Allowance of Appeal Denied May 14, 1985.

      Diane G. Moretzsohn, Assistant Public Defender, West Chester, for appellant.
    Phylis Streitel, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and CHULLO, JJ.
   WIEAND, Judge:

Where an occupant of a motor vehicle, following a high speed chase by police, is found to be in possession of property taken several hours earlier during a burglary committed in an adjoining county, does a conviction for theft by receiving stolen property in the county of arrest bar prosecution for burglary in the county where the burglary was committed? The trial court in the latter county denied a pre-trial motion to dismiss the burglary charge, and this appeal followed. We affirm.

During the early morning hours of December 22, 1979, a vehicle occupied by Timothy Downs led Lower Merion Township Police on a high speed chase after the vehicle had been observed in the commission of multiple traffic violations in Montgomery County. The chase came to an end when the vehicle crashed in a wooded area. When police arrived at the crash site, they found that the trunk lid had been opened by the force of impact. Lying in the trunk were typewriters and business machines bearing tags which identified them as property of Worldwide Direct Market, a business enterprise located in Wayne, Chester County. Inquiry disclosed a break-in and theft at the Chester County office earlier on the same morning or very late on the prior night. Downs gave police a statement which implicated himself in the Chester County burglary.

Downs was arrested in Montgomery County and charged, inter alia, with theft by receiving stolen property. He was charged in Chester County with burglary, criminal trespass, and criminal mischief. Additional charges of theft and conspiracy were brought in Chester County but subsequently nol prossed by the Commonwealth. Downs elected to enter a plea of guilty to theft by receiving stolen property in Montgomery County, and sentence therefor was imposed. He then filed a pre-trial motion to dismiss the charges in Chester County. In support thereof, he argued that dual prosecutions in separate counties were barred (1) by principles of double jeopardy, (2) by the provisions of sections 109 and 110 of the Crimes Code (18 Pa.C.S. §§ 109, 110), and (3) by the provisions of 18 Pa.C.S. § 3502(d), which bars convictions both for burglary and for the offense which it was the intent of the burglar to commit. On appeal from the trial court’s order refusing to dismiss the charges in Chester County, we consider appellant’s arguments seriatim.

“The Double Jeopardy Clause ‘protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted) .... Where successive prosecutions are at stake, the guarantee serves ‘a constitutional policy of finality for the defendant’s benefit.’ United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion). That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); cf. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977), and from attempts to secure additional punishment after a prior conviction and sentence, see Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957); cf. North Carolina v. Pearce, supra.” Brown v. Ohio, 432 U.S. 161, 165-166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977). Article I, section 10 of the Pennsylvania Constitution has received a similar interpretation.

“ ‘The double jeopardy clause breaks down into three general rules which preclude a second trial or a second punishment for the same offense: (1) retrial for the same offense after acquittal; (2) retrial for the same offense after conviction; (3) multiple punishment for the same offense at one trial. The judiciary views these rules as expressions of self-evident moral precepts: It is wrong to retry a man for a crime of which he previously has been found innocent, wrong to harass him with vexatious prosecution, and wrong to punish him twice for the same offense.’ ” Commonwealth v. Grazier, 481 Pa. 622, 630-631, 393 A.2d 335, 339 (1978) quoting Commonwealth v. Mills, 447 Pa. 163, 169, 286 A.2d 638, 641 (1971) (emphasis in original). Accord: Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980); United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Commonwealth v. Bolden, 472 Pa. 602, 618, 373 A.2d 90, 97 (1977); Commonwealth v. Maddox, 307 Pa.Super. 524, 532, 453 A.2d 1010, 1014 (1982); Commonwealth v. Meekins, 266 Pa.Super. 157, 162, 403 A.2d 591, 593 (1979).

In Interest of R.R., 317 Pa.Super. 334, 343, 464 A.2d 348, 352 (1983) (footnote omitted).

Although a single sovereign may impose only one punishment for a single act, “dual” sovereigns are not so limited. Dual sovereigns may separately prosecute an accused for offenses based upon the same conduct. United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). The Commonwealth argues that Chester and Montgomery Counties are “dual” sovereigns for double jeopardy purposes. We reject this argument. The courts which sit in these counties are part of a unified, state judicial system. They are state courts, whose power and authority are derived from a single source. Thus, the various courts of common pleas of this Commonwealth are judicial arms of a single sovereign for double jeopardy purposes and, as such, are barred from separately prosecuting an accused for a single criminal act. See: Waller v. Florida, supra (state and municipality are not separate sovereigns and cannot separately prosecute for single act); Puerto Rico v. Shell Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235 (1937) (territorial and federal governments are not separate sovereigns and cannot separately prosecute for single act); Commonwealth v. Bolden, supra (state and municipality are not dual sovereigns and cannot separately prosecute for a single act); Brady v. State, 584 S.W.2d 245 (Tenn.Ct.App.1979) (counties of same state do not constitute dual sovereigns for double jeopardy purposes). Compare: United States v. Wheeler, supra (federal government and Indian tribal government are separate sovereigns who may prosecute separately for a single act); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (state and federal governments are separate sovereigns and can prosecute separately on basis of same acts). But see: Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971) (plurality opinion) (as matter of state constitutional law, separate prosecution by courts of Pennsylvania following prior conviction for same act in federal courts will not be permitted unless it first appears that the interests of the state and federal governments are substantially different).

Whether appellant in this case is entitled to the protections afforded by principles of double jeopardy turns upon whether his unauthorized entry of Worldwide’s offices in Chester County is viewed as part of a single act with his subsequent, unlawful possession of Worldwide’s property in Montgomery County. For double jeopardy purposes, it is not enough that the two offenses be part of the same episode; double jeopardy principles bar double prosecution only for a single offense. See: Commonwealth v. Webster, 323 Pa.Super. 164, 178-179, 470 A.2d 532, 539-540 (1983). Here, appellant has been charged with violating different statutory provisions, i.e., 18 Pa.C.S. §§ 3502, 3503 and 3504, than in Montgomery County, where he was charged with violating 18 Pa.C.S. § 3925. In order to determine whether the alleged violations are to be considered a single offense for double jeopardy purposes:

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not____”

Brown v. Ohio, supra at 166, 97 S.Ct. at 2225, 53 L.Ed.2d at 194, quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). Accord: Commonwealth v. Tarver, 493 Pa. 320, 325, 426 A.2d 569, 572 (1981); Commonwealth ex rel. Garland v. Ashe, 344 Pa. 407, 408, 26 A.2d 190, 191 (1942); Commonwealth v. Maddox, 307 Pa.Super. 524, 532, 453 A.2d 1010, 1014 (1982); Commonwealth v. Adams, 296 Pa.Super. 24, 28-29, 442 A.2d 277, 279 (1982). This requires that we examine the elements of the crimes charged in Chester County vis-a-vis those involved in the former Montgomery County prosecution. “ ‘If each requires proof of fact that the other does not, the Blockburger test is satisfied, [and double jeopardy is not violated] notwithstanding a substantial overlap in the proof offered to establish the crimes ____’” Brown v. Ohio, supra at 166, 97 S.Ct. at 2226, 53 L.Ed.2d at 194, quoting Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616, 627 n. 17 (1975).

When we apply this test, it becomes apparent that principles of double jeopardy do not prevent the Chester County prosecutions for burglary, criminal trespass and criminal mischief. Appellant’s prior conviction for theft by receiving stolen property was based upon his retention of stolen property in Montgomery County. This did not require proof that appellant had made an unlawful entry, with resulting damage, of Worldwide’s offices in Chester County. Or, to reverse the equation, the prosecution in Chester County for burglary, criminal trespass and criminal mischief will require proof of facts not necessary to the conviction in Montgomery County for receiving stolen property. The prosecution for burglary will require proof of an entry of Worldwide’s offices with intent to commit a crime therein. See: Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984). Criminal trespass will require proof of an unlicensed entry. See: Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978). The prosecution for criminal mischief will require proof of an intentional or reckless destruction of Worldwide’s property. See generally: Commonwealth v. Miller, 234 Pa.Super. 146, 339 A.2d 573 (1975), aff'd, 469 Pa. 24, 364 A.2d 886 (1976). None of these offenses requires proof of appellant’s criminal possession of stolen property in Montgomery County. It seems clear, therefore, that the prosecutions in Chester County are not barred by principles of double jeopardy.

Appellant contends also that prosecution in Chester County is barred by the provisions of 18 Pa.C.S. §§ 109 and 110. Because the Chester County prosecution is not for violating the same statutory provision which appellant violated in Montgomery County, section 109 of the Crimes Code, by its own terms, can have no application.

Section 110 of the Crimes Code provides:

§ 110. When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or
(iii) the same conduct, unless:
(A) the offense of which the defendant was formerly-convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
(B) the second offense was not consummated when the former trial began.

This provision establishes protection against multiple prosecutions arising from the same conduct or criminal episode even where the prosecutions are based upon different statutory provisions. See generally: Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983). However, section 110 does not bar multiple prosecutions in different counties for violations of different statutory provisions. In order for the ban to apply, the crimes charged must be within the jurisdiction of a single court. See: Commonwealth v. Caden, 326 Pa.Super. 192, 197, 473 A.2d 1047, 1049 (1984); Commonwealth v. Nichelson, 294 Pa.Super. 438, 443-444, 440 A.2d 545, 548 (1982); Commonwealth v. Harris, 275 Pa.Super. 18, 23-24, 418 A.2d 589, 592 (1980). The charges of burglary, criminal trespass and criminal mischief arose from acts committed beyond the jurisdiction of Montgomery County. Therefore, appellant could not be prosecuted for those offenses in Montgomery County. Only the courts of Chester County had jurisdiction to prosecute appellant for burglary, criminal trespass and criminal mischief committed at Worldwide’s offices in Chester County. “Moreover, the law defining [the offense of theft by receiving stolen property was] ‘intended to prevent a substantially different harm,’ that is, the unauthorized intentional receipt, retention, or disposition of movable property, than the charges which are the subject of this appeal.” Commonwealth v. Caden, supra, 326 Pa.Superior Ct. at 199, 473 A.2d at 1050.

Finally, appellant argues that prosecution for burglary in Chester County is barred by 18 Pa.C.S. § 3502(d), which provides:

(d) Multiple convictions. — A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional

offense constitutes a felony of the first or second degree. Because theft by receiving stolen property is not a felony of the first or second degree, appellant contends that a prosecution for burglary in Chester County is precluded. We disag. oe.

When the plain meaning of this language is applied, it is readily apparent that the Chester County prosecutions are not barred. In the first place, section 3502(d) pertains only to convictions for burglary. Thus, by its very terms it can have no application to prosecutions for criminal trespass and criminal mischief. Secondly, the language of the section does not under any circumstances purport to bar a conviction for burglary. It pertains, rather, to bar a second punishment for “the offense which it was [the burglar’s] intent to commit after the burglarious entry.” Thirdly, it seems clear that theft by receiving stolen property in Montgomery County by definition was not the offense which the actor intended to commit when he entered Worldwide’s offices in Chester County. Theft by receiving stolen property is an “on-going” offense. Commonwealth v. Kuykendall, 318 Pa.Super. 429, 432, 465 A.2d 29, 31 (1983); Commonwealth v. Farrar, 271 Pa.Super. 434, 442, 413 A.2d 1094, 1098 (1979). Because it is a continuing offense, prosecution may be maintained in a county in which an accused is found to be in possession of the stolen property. This offense is separate and apart from the burglary which resulted in the initial taking of the property.

Section 3502(d) of the Pennsylvania Crimes Code is based upon section 221.1(3) of the Model Penal Code, which recognized that a burglary conviction carries severe penalties which already reflect consideration of the aggravating circumstances of a lawless entry coupled with underlying criminal activity of a relatively minor character. Model Penal Code, § 221.1, comment 6 (Tent. Draft No. 11, 1960). The purpose of Section 3502(d), therefore, is to prevent dual punishment for burglary and the offense which the accused intended to commit when he effected his entry. Commonwealth v. DeSabetino, 317 Pa.Super. 561, 565, 464 A.2d 465, 467 (1983); Commonwealth v. Benedetto, 316 Pa.Super. 134, 138, 462 A.2d 830, 832 (1983); Commonwealth v. Jefferson, 307 Pa.Super. 18, 21, 452 A.2d 881, 882 (1982); Commonwealth v. Miller, 269 Pa.Super. 589, 591-592, 410 A.2d 857, 858 (1979); Commonwealth v. Harris, 269 Pa.Super. 41, 43, 409 A.2d 53, 54 (1979). The statute proscribes only dual punishment; it does not preclude dual prosecutions or findings of guilty. Commonwealth v. Byron, 319 Pa.Super. 1, 3, 465 A.2d 1023, 1024 (1983); Commonwealth v. DeSabetino, supra, 317 Pa.Superior Ct. at 565, 464 A.2d at 467; Commonwealth v. Black, 267 Pa.Super. 598, 601-602, 407 A.2d 403, 405 (1979).

Appellant’s argument, if accepted, would place upon Section 3502(d) a meaning foreign to its intended purpose and place a premium upon an accused’s speed in entering a plea of guilty to the less severe charge brought in the county in which he was arrested with the fruits of crime in his possession, or, indeed, in any county through which he may have passed with the contraband in his possession. We decline to find that the legislature intended such an absurd result. Cf. Commonwealth v. Boerner, 281 Pa.Super. 505, 520 n. 17, 422 A.2d 583, 589-590 n. 17 (1980).

Order affirmed.

      . 18 Pa.C.S. § 3925.

      . 18 Pa.C.S. § 3502.

      . 18 Pa.C.S. § 3503.

      . 18 Pa.C.S. § 3304.

      . A prior appeal to this Court resulted in a per curiam order affirming the order of the trial court, 299 Pa.Super. 616, 445 A.2d 241. That order was based upon the defendant's failure to file a written motion to dismiss. Thereafter, the trial court permitted the defendant to file a motion to dismiss nunc pro tunc. The denial of this motion is the basis for the present appeal.


author: CIRILLO, Judge:

text:
    483 A.2d 890
    COMMONWEALTH of Pennsylvania, Appellant, v. Randy V. LAURIE.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1984.
    Filed Oct. 26, 1984.

      Garold E. Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Glenn Gilman, Assistant Public Defender, Philadelphia, for appellee.

      Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   CIRILLO, Judge:

This is an appeal by the Commonwealth from an order dismissing criminal mischief, conspiracy, trespass and burglary charges against the appellee, Randy Laurie. The trial court held that the police had not exercised due diligence in attempting to locate appellee. Consequently, the court ruled the period of time between the filing of the criminal complaint and the arrest could not be excluded from the period within which appellee had to be tried pursuant to Pa.R.Crim.P. 1100. We reverse.

On August 25, 1981, appellee and a juvenile allegedly broke into an apartment, vandalized it, and proceeded to steal cash and other property. The following day a written complaint was filed and an arrest warrant issued. However, the appellee was not arrested until April 21, 1982. On January 14, 1984, after various delays which are irrelevant for purposes of this appeal, the Honorable Herbert R. Cain granted appellee’s motion to dismiss under Rule 1100, finding that “the Commonwealth has not met its burden of proving that the delay in apprehending the defendant is excludable pursuant to Rule 1100(d)(1).” Slip op. at 6.

The position advanced by the Commonwealth, and the evidence produced at the Rule 1100 hearing show that the time from the filing of the complaint till appellee’s arrest was excludable time under Rule 1100(d) because, despite the exercise of due diligence on the part of the police, appellee was unavailable.

Four uncontradicted witnesses were called by the Commonwealth to establish that Philadelphia police engaged in a variety of efforts to locate appellee. The evidence showed that Sergeant Vincent Klepac obtained the arrest warrant for appellee and immediately following its issuance, contacted appellee’s sister, mother and numerous members of his family. Sergeant Klepac contacted the sister on several occasions and visited her apartment. Through this investigation, he learned that appellee no longer lived at the address listed in police files and that appellee may have returned to Wisconsin. Additionally, Sergeant Klepac contacted the electric, gas and phone companies, as well as the Department of Welfare. He discovered that appellee may have been in the Northeast Philadelphia area. As a result of this investigation, an advertisement was placed in a local Northeast Philadelphia newspaper; the ad contained a photograph and physical description of the appellee, along with a request that anyone with information, contact the police. Furthermore, Sergeant Klepac placed the appellee’s name in the national crime computer (NCIC) and the Philadelphia crime computer (PCIC). These computers circulate throughout the country and state that a defendant is wanted in Pennsylvania.

It is undisputed that the Commonwealth bears the burden of proving by a preponderance of the evidence that the police exercised due diligence in trying to find appellee. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Dorsey, 294 Pa.Super. 584, 440 A.2d 619 (1982). “The ‘due diligence’ required of the police does not demand perfect vigilance and punctilious care, but rather a reasonable effort.” Commonwealth v. Polsky, 493 Pa. 402, 407, 426 A.2d 610, 613 (1981); see also Commonwealth v. Fanelli, 292 Pa.Super. 100, 436 A.2d 1024 (1981). Moreover,

It is not the function of our courts to second-guess the methods used by police to locate accused persons. The analysis to be employed is whether, considering the information available to the police, they have acted with diligence in attempting to locate the accused. Deference must be afforded the police officer’s judgment as to which avenues of approach will be fruitful.

Commonwealth v. Mitchell, supra, 472 Pa. at 566, 372 A.2d at 832.

In considering “the information available to the police,” we do not ask whether the police had available all the information they might have had available — in other words, whether they did all they could have done. Instead, we ask whether what they did do was enough to constitute due diligence.

Commonwealth v. Dorsey, supra, 294 Pa.Superior Ct. at 588, 440 A.2d at 621. See also Commonwealth v. Winn, 327 Pa.Super. 296, 475 A.2d 805 (1984); Commonwealth v. Faison, 324 Pa.Super. 406, 471 A.2d 902 (1984). “It is simply not required that the Commonwealth exhaust every conceivable method of locating a defendant. Rather, reasonable steps must be taken.” Commonwealth v. Jones, 256 Pa.Super. 366, 373, 389 A.2d 1167, 1170 (1978).

In the case at bar, the trial court engaged in the form of impermissible judicial hindsight review of police investigation that was cautioned against in Commonwealth v. Mitchell, supra and Commonwealth v. Dorsey, supra. Judge Cain based his decision upon the fact that Sergeant Klepac made only one call to appellee’s last known address, where it was later discovered appellee had infrequently visited during the eight month period. However, the Sergeant testified that “I was informed he [appellee] no longer lived at that location.” N.T. 8. Appellee’s sister testified that she believed appellee may have returned to Wisconsin. N.T. 19.

Undoubtedly, as in almost any case involving pre-arrest delay, the police could have done more.

However, we recognize that the police cannot investigate every crime with the promptness and thoroughness that would be desirable. Too many crimes are committed. The police must therefore make choices, devoting more attention to some crimes than to others, and forgoing some lines of inquiry that they would pursue if they had more resources.

Commonwealth v. Dorsey, supra, 294 Pa.Superior Ct. at 589, 440 A.2d at 622. In any event, the focus of our inquiry is on what was done, not with what should have been done. Thus, after carefully reviewing the record, and the briefs submitted by counsel and having had the benefit of oral argument, we conclude that the police acted with due diligence; the period of time the appellee was unavailable is excludable for Rule 1100 purposes.

Accordingly, we reverse the order of the Court of Common Pleas and remand for trial. Jurisdiction is relinquished.


text:
    483 A.2d 892
    Barbara PAULUSSEN, Appellant, v. George Ronald HERION.
    Superior Court of Pennsylvania.
    Argued July 24, 1984.
    Filed Oct. 26, 1984.
    Petition for Allowance of Appeal Denied April 21, 1985.

      Rosalie Davies, Narberth, for appellant.
    Francis M. Visco, Philadelphia, for appellee.
    Before CIRILLO, MONTEMURO and CERCONE, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Bucks County in which the motion for summary judgment of the appellee George Ronald Herion was granted and that of the appellant Barbara Paulussen was denied. On March 5, 1980 the appellant filed a petition for support on behalf of her minor child, Georgeanne Veronica Paulussen, born March 5, 1972. The petition set forth that the appellee as the natural father had failed to support the child from April, 1975 to the present. The appellee filed an answer and new matter, denying paternity and admitting the fact that financial support had ceased in April, 1975. After consideration of the briefs filed by both parties, the court granted the appellee’s motion for summary judgment. Shortly thereafter, a petition for reconsideration and vacation of the order was filed and subsequently dismissed. This appeal followed.

On appeal, the appellant challenges the constitutionality of 42 Pa.C.S. § 6704(e), now 6704(b), which imposes a limitation period on actions to establish paternity, as violative of equal protection, of the prohibition against special laws, and of the Equal Rights Amendment. Further, the appellant asserts that since the appellee has openly acknowledged his paternity by contributing support, by failing to contest the presence of his name on the birth certificate, and by admitting paternity in a stipulation, he is thereby estopped from raising the statute of limitations. We find no merit in the appellant’s position and affirm the order of the court.

In response to the appellant’s challenge to the constitutionality of the statute of limitations requiring that actions to establish paternity of a child born out of wedlock be commenced within six years of the birth of the child, 42 Pa.C.S. § 6704(e), we rely upon Astemborski v. Susmarski, 502 Pa. 409, 466 A.2d 1018 (1983):

To be sustained on equal protection grounds, therefore, a statute of limitations governing assertion of paternity claims must satisfy two related requirements. First, the period during which claims may be asserted “must be sufficiently long in duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf.” Mills [v. Habluetzel], 456 U.S. [91] at 99, 102 S.Ct. [1549] at 1555, 71 L.Ed.2d [770] at 778 (1982). Second, the time limitation imposed “must be substantially related to the State’s interest in avoiding the litigation of stale or fraudulent claims.” Id. Examining this Commonwealth’s six year statute of limitations in light of these requirements, we find no denial of equal protection.

502 Pa. at 416, 466 A.2d at 1021. Although this statute results in imposing a greater impediment to the illegitimate child’s claim for support, it is substantially related to a legitimate state interest in preventing the litigation of stale or fraudulent claims. Astemborski v. Susmarski, supra; Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983); Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982). Accordingly, appellant’s challenge to the constitutionality of the statute fails.

Appellant next contends that the appellee is estopped from raising the statute of limitations defense in light of his past contributions to the support of the child, his failure to contest birth records, and his stipulation as to paternity. We disagree.

The operative language of the statute, 42 Pa.C.S. § 6704(e), now 42 Pa.C.S. 6704(b), provides:

Limitation of actions. — All actions to establish the paternity of a child born out of wedlock brought under this section must be commenced within six years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child or shall have acknowledged in writing his paternity, in which case an action may be commenced at any time within two years of any such contribution or acknowledgment by the reputed father.

The facts of the instant matter establish that the action was neither commenced within six years of the birth of the child nor within two years of the cessation of the voluntary financial contribution by the reputed father. Both parties • set forth the fact that no support was received since April, 1975.

Further, the appellee denies paternity and, although the appellant offers a stipulation as written acknowledgment, the document was not signed or admitted into evidence, and will not be considered on appellate review. See Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974). Additionally such information must be excluded as a privileged part of the negotiations between counsel. Smith v. Leflore, 293 Pa.Super. 149, 437 A.2d 1250 (1980). Appellant’s claim that the appellee has not contested the birth records is not raised or supported in the record, and therefore fails as well.

Accordingly we find that the instant action is clearly barred by the statute of limitations.

Order affirmed.


author: OLSZEWSKI, Judge:

text:
    483 A.2d 895
    COMMONWEALTH of Pennsylvania v. Vincent Anthony SANTARELLI, Appellant. COMMONWEALTH of Pennsylvania v. William M. GUINTHER, Appellant. COMMONWEALTH of Pennsylvania v. William Joseph STEINGRABER, Appellant.
    Superior Court of Pennsylvania.
    Argued July 10, 1984.
    Filed Oct. 26, 1984.
    Petition for Allowance of Appeal Denied March 4, 1985.

      Emmanuel H. DiMitriou, Reading, for Santarelli, appellant.
    John M. Elliott and Daniel F. Ryan, III, Philadelphia, for Guinther, appellant.
    Calvin Lieberman, Reading, for Steingraber, for appellant.
    Charles Guthrie and Stuart Suss, Assistant District Attorneys, Reading, for Commonwealth, appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH:
   OLSZEWSKI, Judge:

This appeal follows each man’s convictions on counts of possession of a Schedule I controlled substance, to wit, marijuana, possession with intent to deliver, and criminal conspiracy. The cases were consolidated for trial and again for appeal. We address in turn the claims of each appellant.

William, A. Guinther

Guinther argues: (1) insufficient evidence introduced by the Commonwealth against Guinther mandates reversal and discharge; (2) the trial court erred by refusing to instruct the jury on the offense of possession of less than 30 grams of marijuana; and (3) prosecutorial misconduct during closing argument mandates reversal. Guinther’s argument concerning the sufficiency of the evidence is developed for the first time on appeal.

Guinther’s trial counsel raised the issue of sufficiency of the evidence in post-verdict motions. He failed, however, to develop the issue in his post-trial brief. Finding that Guinther had waived the issue, the trial court refused to reach the merits of the argument. Lower ct. op. at 2 n. 3.

On appeal, Guinther by his new counsel argues that failure to brief the issue constitutes ineffective assistance of counsel. Ineffective assistance will be found where counsel without reason neglects a claim of arguable merit. Commonwealth v. Upsher, 497 Pa. 621, 626-627, 444 A.2d 90, 92 (1982); Commonwealth v. Knox, 304 Pa.Super. 368, 373, 450 A.2d 725, 727 (1982). To reach the issue of ineffective assistance we must first address the foregone claim, the sufficiency of the evidence.

Appellant asserts that the evidence introduced by the Commonwealth against him is insufficient in law to prove beyond a reasonable doubt all the elements of the crimes with which he was charged. We disagree.

In assessing the sufficiency of the evidence on appeal, the standard is well-settled. We must ask whether, accepting as true, all the evidence and all reasonable inferences deductible from such evidence upon which the trier of fact could have based his verdict, the evidence and the inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Williams, 468 Pa. 357, 365, 362 A.2d 244, 248 (1976). Moreover, in reviewing the evidence, we must consider it in the light most favorable to the Commonwealth. Commonwealth v. Ilgenfritz, 466 Pa. 345, 348, 353 A.2d 387, 389 (1976).

After carefully reviewing the record, we are satisfied to adopt the statement of facts set forth in the lower court opinion.

In November, 1980 Wendell Mihalak was employed by the Federal Aviation Administration (FAA) as an air traffic controller at the Reading Airport in Reading, Pennsylvania and had been so employed for approximately twelve years. Mihalak knew defendant Guinther through several parties given by Mihalak’s boss and attended by both Mihalak and Guinther, through Guinther’s association with the American Bonanza Society which is a flying organization having an office building at the Reading Airport, and also through Guinther’s status as a flight instructor, and had spoken with Guinther over the radio about a thousand times during the preceding seven or eight years. Because of his familiarity with Guinther’s voice, Mihalak recognized it when a man piloting a twin-engine Baron 6729 Tango called him for take-off taxi instructions on November 10, 1980 at 5:00 a.m. while Mihalak was on duty at the Reading Airport. In response to Mihalak’s query, Guinther informed Mihalak that he was headed for West Palm Beach, Florida, and engaged in further conversation with Mihalak regarding tail winds before taking off.

On November 11, 1980 Raymond Gillman was employed by the FAA and was working as an air traffic control specialist at the Vero Beach Airport’s flight service station in Vero Beach, Florida. After receiving a telephone call that evening Gillman observed an aircraft taxiing into the parking ramp area at the Vero Beach Airport at approximately 8:15 p.m. From his vantage point approximately two hundred feet from where the aircraft was parked in a well-lit area, and with the inermittent aid of binoculars, Gillman noticed that the aircraft bore the numbers N6729T and that it appeared to be carrying several large brown boxes in the cabin area behind the pilot and co-pilot’s seats. Gillman also saw one individual get out of the aircraft, which individual was a man who appeared to be in his fifties, wore a suit and tie, and walked with a very pronounced limp. Shortly after exiting the aircraft this man entered the flight service station, where he was observed by Gillman from a distance of twenty-five feet. Gillman identified the individual who got out of the aircraft N6729T as being the defendant William Guinther. Approximately one-half hour after he first saw the aircraft N6729T, Gillman observed it taxiing out and away from the parking ramp, and then it disappeared from his view.

On the evening of November 11, 1980 Officer Andrew Bradley of the Vero Beach Police Department received a telephone call, and as a result of that call, went in his police vehicle to the Vero Beach Airport for the purpose of stopping a plane. Once out on the taxiway Officer Bradley observed an aircraft bearing the numbers N6729T taxiing out towards the main runway. He approached the plane from the front, passed it on its right side, keeping pace with it as it continued to taxi. Officer Bradley turned on his police unit’s siren and flashing blue lights as he initially approached the aircraft, and kept them on as he traveled alongside it. Bradley also aimed his spotlight into the cockpit, and was able to see the pilot’s face as the pilot turned towards the light. Bradley described the pilot as a man in his early mid-fifties, with graying hair and dark-rimmed, clear-lensed glasses, and identified him as the defendant William Guinther. Bradley kept his spotlight on and pointed at the cockpit as he paralleled the plane, traveling three or four feet off the right wing tip at a speed of ten to fifteen miles per hour for a distance of two hundred and fifty to three hundred yards. He observed what he believed to be luggage behind the pilot’s seat and an umbrella handle in the cockpit. He also obtained a second look at the pilot’s face when the pilot again turned to look at Bradley’s police vehicle. As the aircraft and Bradley’s vehicle reached the end of the taxiway, the former turned onto the main runway, and Bradley cut across a strip of grass in an attempt to get in front of the plane. He was successful in his attempt, but was obliged to move out of the way in order to avoid being hit by the aircraft. The plane then took off over the roof of a second police vehicle which had been dispatched to Officer Bradley’s aid.

At 3:00 a.m. on November 12, 1980 Wendell Mihalak, while on duty at the Reading Airport, received a radio call from a pilot then flying over nearby Ephrata, Pennsylvania, and Mihalak recognized his voice as being that of the defendant, William Guinther. Using the call sign November 9488 Sierra, the pilot requested landing instructions, which Mihalak supplied. Following Mihalak’s instructions, the pilot landed and taxied over to the west part of the ramp near the American Bonanza Society building, and Mihalak observed an individual exit the aircraft, walk over to the Bonanza Building, and turn on a light. Two or three minutes later Mihalak saw a pickup truck without a cap or camper on the back leave the area, and five minutes after that Mihalak saw it return. Shortly thereafter Mihalak noticed a large blue pickup truck with a white cap or camper coming up a road next to the Bonanza building. After stopping at a gate, this second truck drove up to the aircraft, approaching it from the front, and pulled next to the plane’s right side, remaining there for five or ten minutes before leaving via the same road it had arrived. In the half hour immediately preceding the landing of the above-mentioned aircraft, no other planes landed at the Reading Airport, and in the half hour immediately thereafter, only one plane, a United States Customs aircraft, landed.

On November 11 and 12, 1980 George Kontrabecki was a pilot and law enforcement officer employed by United States Customs and stationed in Jacksonville, Florida. On the evening of November 11 Kontrabecki took off from Jacksonville in a Customs aircraft for the purpose of pursuing another plane, and was accompanied on this flight by Houston Allman, a Customs Air Officer who rode in the rear of the Customs aircraft. After landing his plane in Baltimore to refuel, Kontrabecki continued on to the Reading Airport, where he landed at approximately 3:30 a.m. on November 12. Mihalak then directed Kontrabecki over to the western part of the ramp near the Bonanza Building, and as Kontrabecki was taxiing in that direction he observed a twin-engine aircraft bearing the numbers N6729T parked in front of the building and a bluish or greenish pickup truck with a white camper shell backed up at an angle to the aircraft’s right side. By the time Kontrabecki reached the ramp this pickup truck became mobile, proceeding towards the west gate without its lights on. Kontrabecki followed the truck in his plane to the vicinity of the west gate, where the truck’s lights were turned on. The truck then proceeded through the gate and down a hill out of Kontrabecki’s sight.

At approximately 3:30 a.m. on November 12, 1980 State Troopers Leon Huey and Louis Belsterling proceeded to the Reading Airport in a patrol car, traveling north on Route 183. After passing the front entrance to the airport, Trooper Huey, who was driving, made a right hand onto a service road leading to the west gate, whereupon both Huey and Belsterling observed a set of headlights coming towards them from the vicinity of the west gate. Both officers watched these headlights proceeding down the road towards their patrol car, and within a few seconds of stopping their vehicle at the first intersection, were able to observe the source of the headlights, i.e., a bluish-green pickup truck with a white or light cap or camper which also arrived at the same intersection and stopped. The pickup truck then made a lefthand turn at the intersection and followed the truck. Huey continued to follow the truck as it turned left onto Route 183, whereupon Huey made a U-turn in the intersection and followed the truck. Huey continued to follow the truck as it turned left onto Route 183, and was able to observe several square-shaped packages in the rear portion of the truck inside the camper. As the truck neared the main entrance of the airport on Route 183 Huey turned the patrol vehicle’s red lights on, and the pickup truck pulled over. Using his public address system, Huey told the occupants to get out of their vehicle and proceed to the rear of the truck, which they did. Both Huey and Belsterling identified the truck’s occupants as defendants William Steingraber and Vincent Santarelli, the former having exited the vehicle from the driver’s side and the latter from the passenger’s side. The police then instructed the occupants to get back into their vehicle and return to the area from which they had just come, whereupon both reentered the truck and, followed by Huey and Belsterling, proceeded back up the service road and stopped a few feet from the west gate.

Three or four minutes after Customs Officer George Kontrabecki lost sight of the pickup truck which he initially saw parked near the aircraft N6729T he observed a pickup truck fitting the same description coming back up the hill towards the west gate, followed by a marked State Police vehicle. Customs Officer Houston Allman, while standing near the gate, saw the two men who got out of the pickup truck, and testified that they were Santarelli and Steingraber. Kontrabecki also saw two men in the vicinity of the pickup truck, and identified them as defendants Steingraber and Santarelli. Allman looked into the rear of the pickup truck from the outside and saw numerous packages enclosed in brown paper or boxes, at least some of which were torn in places, and through these tears was able to see a substance protruding which appeared to him to be marijuana. Allman then opened the rear door of the truck and being satisfied that the substance was marijuana, he walked over to the men who had been in the pickup truck and read them their rights. Kontrabecki also looked into the back of the truck and saw what appeared to be marijuana in a number of torn packages, and subsequently observed, from the outside of the aircraft with the aid of a flashlight, a small amount of vegetable matter or debris resembling marijuana on the floor inside the aircraft N6729T. In addition, Kontrabecki tried the handles on the passenger and cargo doors of the aircraft N6729T, and found that he was able to open them.

On November 12, 1980 Corporal Gary Stiver of the Pennsylvania State Police took rolled ink impressions of all ten of defendant Guinther’s fingerprints, and transferred them to a fingerprint card (Exhibit 2). Corporal Roman Petrosky, also of the Pennsylvania State Police, testified that six latent fingerprints lifted from inside the aircraft N6729T matched the various fingerprints on Exhibit 2 [the fingerprint card], and stated that in his opinion, the prints found inside the plane and those on Exhibit 2 were made by the same person. Paul Skrimcovksy, a criminalist with the Pennsylvania State Police, tested the debris (Exhibit 12) found inside the aircraft N6729T, and the eleven packages (Exhibit 10) removed from the pickup truck, and found that all contained marijuana and that the eleven packages had a combined net weight of 343.6 pounds. Trooper Ronald Haberstroh, a fourteen year member of the Pennsylvania State Police Troop L vice unit, testified that in his opinion, possession of 343.6 pounds of marijuana is not consistent with personal use.

Lower ct. op. at 9-10. Further, we agree with the Honorable Richard Eshelman that:

The above-recited evidence, particularly that relating to defendant Guinther’s taking off from Reading to Florida in aircraft N6729T, his presence the following day at Yero Beach, Florida in aircraft N6729T, which carried what one witness described as large brown boxes, his evasion of Vero Beach police, his use of the incorrect call sign 9488 Sierra when landing in Reading, the presence of the pickup truck shortly thereafter next to aircraft N6729T for five or ten minutes, the observation by Kontrabecki of the pickup truck proceeding without headlights from the aircraft to the west gate of the airport, the observation by state police officers of the pickup proceeding from the west gate onto Route 183 loaded with packages, which truck was occupied by Steingraber and Santarelli and which packages contained 343.6 pounds of marijuana, the presence of marijuana residue and Guinther’s fingerprints in aircraft N6729T, and the fact that possession of 343.6 pounds of marijuana is not consistent with personal use of such substance, was more than sufficient evidence to allow the jury to conclude that Guinther transported 343.6 pounds of marijuana from Vero Beach to Reading in aircraft N6729T, that as pilot Guinther had both the power and intent to control the marijuana, that the marijuana was transferred from his plane to the pickup truck by Steingraber and Santarelli and transported in the truck occupied by them, that the latter two defendants had the power and intent to control the contraband while it was transferred to and located and transported in the truck, and that all of the above was done pursuant to an agreement among the three defendants to accomplish the same. Having drawn the above conclusions, the jury could properly find the defendants guilty of possession of the controlled substance, marijuana, possession with intent to deliver it, and conspiracy to commit these crimes.

Lower ct. op. at 9-10.

Guinther relies on three out-of-state cases to support his argument. Dubry v. State, 582 S.W.2d 841 (Tex.Crim.App.1979); U.S. v. Burgos, 579 F.2d 747 (2d Cir.1978); and Waldon v. State, 579 S.W.2d 499 (Tex.Crim.App.1979). We receive these decisions as persuasive authority but not binding precedent. See Commonwealth v. National Bank & Trust Co. of Central Pennsylvania, 469 Pa. 188, 364 A.2d 1331 (1976). The two Texas cases stand for the proposition that conviction under a “constructive possession” theory requires proof of an affirmative link between the accused and the contraband. See Willis v. State, 636 S.W.2d 602, 605 (Tex.App.1982). In Willis, the court found the requisite link in evidence of proximity and control. That same link exists in this case in proof that Guinther piloted the plane from Vero Beach to Reading. Similarly, Burgos supports the proposition that mere presence is not enough. We agree. In the instant case, however, evidence that Guinther had flown the plane from Yero Beach must be considered with the fact of his flight from Florida authorities, the presence of marijuana on the floor of the plane, the discovery of the 343.6 pounds of marijuana and the attendant circumstances. A review of the record below leads us to the conclusion that the facts presented at trial by the Commonwealth were such that a jury could find beyond a reasonable doubt that Guinther committed the crime charged against him.

Finding the omitted claim meritless, we do not reach the second prong of the test — whether the course chosen by counsel had some reasonable basis designed to effectuate the interests of the client. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Judge Eshelman’s able opinion has resolved Issues 2 and 3. We note that Guinther’s second argument fails on its own terms. The doctrine of lesser — included offenses evolved at common law to prevent the prosecution from failing where some element of the crime charged was not made out. “There is no duty on a trial judge to charge upon law which has no applicability to presented facts.” Commonwealth v. Wilds, 240 Pa.Super. 278, 279, 362 A.2d 273, 278 (1976). In Wilds, police had searched the defendant and his home. They seized approximately 4 pounds from defendant’s home but less than 30 grams from his person. On appeal, this Court looked to three factors, the quantity of marijuana seized, the disparate penalties for the various offenses, and the apparent jury confusion over the charge. We reversed on the trial court’s refusal to charge the jury on possession of less than 30 grams of marijuana. In the instant case, the .0025 ounces of marijuana represents the residue scraped from the floor of airplane found at 3:30 in the morning in the vicinity of a truck carrying 343 pounds of marijuana. On the facts, we find Guinther’s argument somewhat less than compelling.

Judgment of sentence affirmed.

Vincent A. Santarelli

Santarelli charges: (1) failure to suppress illegally seized contraband introduced by the Commonwealth against Santarelli, (2) failure to grant a change of venue or other relief necessary to ensure a fair trial, (3) insufficient evidence introduced by the Commonwealth against Santarelli, (4) improper closing argument by the Assistant District Attorney; and (5) failure to instruct the jury in accordance with the defendant’s points for charge mandate reversal. After a careful review of the record, we find Judge Eshelman’s opinion has disposed of Issues 1, 3, 4, and 5. We find appellant’s argument on Issue 2 without merit. Disposition of a motion for a change of venue lies within the sound discretion of the trial judge. Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978). As a rule, a defendant alleging prejudicial pre-trial publicity must show actual prejudice. An exception exists where pretrial publicity is “so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue____” Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.3d 1224, 1227 (1977). The trial judge makes the determination based on the content of the publicity. Here Judge Eshelman, in his Disposition of Defendant’s Omnibus Pretrial Motions for Relief, found the attendant publicity “contained objective, non-inflammatory reporting.” Finding of Fact 40. Absent proof of actual prejudice, appellant’s second claim must fall.

Judgment of sentence affirmed.

William J. Steingraber

Steingraber argues: (1) the trial court erred by refusing to suppress the evidence; (2) prosecutorial misconduct during closing argument mandates reversal; (3) insufficient evidence introduced by the Commonwealth against Steingraber mandates removal (sic); (4) failure to grant a change of venue or other relief necessary to ensure a fair trial mandates a reversal; and (5) remand for resentencing of Steingraber is required where the judge did not consider factors individual to Steingraber. Judge Eshelman, in his thorough opinion, resolved Issues 1, 2 and 3. After a careful review of the record, we adopt his reasoning. Issue 4 we have discussed supra as regards appellant Santarelli. The same reasoning applies here. As regards Steingraber’s fifth argument, our review of the record satisfies us that Judge Eshelman did give conscientious consideration to the circumstances of the offense and the background and character of Steingraber. See R. 1985a-1906a and R. 1912a-1917a.

Judgment affirmed.

WIEAND, J., concurred in the result.

      . 35 Pa.C.S. § 780-113(a)(16).

      . 35 Pa.C.S. § 780-113(a)(30).

      . 18 Pa.C.S. § 903(a)(1).

      . The court in Dubry suggested that the facts of the case would support a conviction for conspiracy. 582 S.W.2d at 844. However, the criminal conspiracy sections of the Texas Penal Code did not apply to violations of the Controlled Substances Act. Id.; cf. Commonwealth v. Davenport, 307 Pa.Super. 102, 452 A.2d 1058 (1982) (affirming convictions for criminal conspiracy and unlawful delivery of a controlled substance.)


author: DEL SOLE, Judge:

text:
    483 A.2d 902
    COMMONWEALTH of Pennsylvania v. Hector GONZALES, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1984.
    Filed Oct. 26, 1984.

      William Costopolous, Lemoyne, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and ROBERTS, JJ.
   DEL SOLE, Judge:

Appellant was convicted, after a jury trial, of Aggravated Assault, and Possession of a Controlled Substance with intent to deliver. His post-trial motions were denied, and Appellant was sentenced to consecutive sentences of 2V2 to 5 years for the possession charge, and 5 to 10 years for aggravated assault. Appellant then filed this appeal. He alleges as his sole issue, that the court committed reversible error when it refused to charge the jury on the defense of justification.

The relevant facts of the case are as follows: On January 12, 1983, four Harrisburg City Police officers went to Appellant’s apartment for the purpose of executing a search warrant. Three officers, Goshert, Teel, and Vucenic, approached the front of the apartment. Only Vucenic was dressed in uniform. The other officer went to the rear of the residence. Goshert knocked on the door of the apartment and said he had “money for Joe”. As the door began to open, Goshert shouted “Harrisburg Police, we have a search warrant”, and pushed the door the rest of the way open. Goshert entered the apartment first, with Teel to his right and rear, and Vucenic to his left and rear. At that point, Goshert observed Appellant crouched approximately five feet away, holding a handgun in his outstretched hands. Upon seeing this, Goshert slid to the floor, and removed a revolver from his coat pocket. Teel, believing Goshert had been shot, began to shoot at Appellant. Goshert also fired at Appellant. Vucenic testified that Appellant “clicked” his pistol as if Appellant was attempting to fire the weapon, but it misfired. Vucenic then drew his revolver and fired from the hip. Appellant was hit by 14 bullets, but survived.

The issue on appeal is whether the court erred in refusing Appellant’s request to instruct the jury on justification under § 505 of the Crimes Code, 18 Pa.Cons.Stat.Ann. (Purdon 1983). Section 505 is entitled, “Use of Force in Self Protection”, and it provides:

(a) Use of force justifiable for protection of the person. The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

Our case law makes it clear that the charge of self-defense must be given upon request if there is evidence presented, from any source, that the defendant acted in self-defense. Commonwealth v. Brown, 491 Pa. 507, 421 A.2d 660 (1980). In addition, the defendant is entitled to a charge that the burden is upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in self-defense. Commonwealth v. Rittle, 285 Pa. Super. 522, 428 A.2d 168 (1981).

In light of this authority, we must examine the record to see if there is evidence “from any source”- the Appellant was acting in self-defense. Appellant, through an interpreter, testified that the officers never identified themselves as police, nor did he see any warrant. In response to a question regarding why he reached for the gun, Appellant answered: “When I opened, they were dressed in civilian clothes. The one man was on the floor with the gun. And so, since I had been robbed I took the gun.” When asked what his thoughts were at that moment, Appellant responded: “That they were going to rob me.” Appellant had earlier stated that he had been robbed two weeks prior to this incident. Officer Washinger of the Harrisburg Police was also called to the stand. He confirmed that Appellant reported a burglary on November 17, 1982. Appellant further testified, “When I saw the uniformed cop behind the two in front of him, I did not use the gun.”

We find that this testimony was made in support of a claim of self-defense.

The Commonwealth nevertheless urges us to find that the court properly refused the charge. It asserts that Appellant cannot use a claim of self-defense without admitting that he fired the weapon. In support of its position the Commonwealth cites, Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979) and Commonwealth v. Gray, 441 Pa. 91, 271 A.2d 486 (1970). In both cases, the victims were stabbed to death. In each case, the defendants were charged with homicide, however they both denied knowledge of any stabbing. On that basis, it was held that self-defense was not an issue and instructions on self-defense were not required. The Powers court stated: “In similar cases, we have held that where a defendant steadfastly denies that he or his companions used deadly force against the victim, and where the issue of self-defense was not otherwise injected into the trial by either the prosecution or the defense, the failure to charge upon the subject was not error.” Commonwealth v. Powers, 484 Pa. at 204, 398 A.2d at 1016.

First, we note that in Powers and Gray, supra, the defendants were trying to raise inconsistent defenses. In those cases, the defendants maintained that they did not participate in the stabbings, yet they requested a charge on self-defense. The Appellant in this case differs because he does admit that he held a gun pointed at the officers. While Appellant denies that he attempted to shoot the revolver, the mere act of pointing a gun at an individual is sufficient conduct to constitute an assault. See: Commonwealth v. Savage, 275 Pa.Super. 96, 418 A.2d 629 (1980), and Commonwealth v. Rittle, supra. Thus, Appellant must be permitted to raise this defense to his actions.

Secondly, unlike the cited cases, the Appellant in this action did bring the issue of self-defense into trial. He did this through his own testimony, as noted above.

It was for the jury to determine the credibility of Appellant’s statements. Although the jury may have found that Appellant’s conduct was unjustified or unreasonable, the court, by refusing to give instructions on § 505, improperly took this consideration away from the factfinder.

By way of further argument, the Commonwealth contends that Appellant waived his right to challenge the court’s denial of instructions on self-defense by not submitting a timely written request for such an instruction as required by Pa.R.Crim.P. 1119(a). This rule provides:

Rule 1119. Request for Instructions and Charge to the Jury.
(a) Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. The trial judge shall charge the jury after the arguments are completed, and shall then rule on all written requests.

Appellant’s counsel made his request for a justification instruction after the court completed its initial charge to the jury. However, the request was made in response to the court’s inquiry: “Are there any other points that you wish to make with me or any exceptions to the points.” This Court in Commonwealth v. Marshall, 273 Pa.Super. 344, 417 A.2d 681 (1979) decided a similar issue. In Marshall, we held that although the rule indicates a clear preference for written requests, nothing in the rule itself bars a trial judge from entertaining oral requests for instructions. In Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794 (1977), it was stated, “the provision permitting the submission of requested points for charge is not couched in mandatory terms, and a party is in no way bound by his failure to do so.” 472 Pa. at 489 n. 2, 372 A.2d 796 n. 2 (1977). Accordingly, we find that the Appellant’s request for instructions was properly, and timely made. In addition, we note that the request was sufficiently explicit in its terms.

Under these circumstances, we conclude that Appellant was entitled to an instruction on the defense outlined in 18 Pa.C.S.A. § 505.

Judgment of Sentence vacated. Case remanded for new trial.

Jurisdiction relinquished.


author: MONTEMURO, Judge:

text:
    483 A.2d 905
    Ormond E. PELUSO, Individually and as Administrator of the Estate of Noelle Marie Peluso, Deceased, Appellant, v. Wayne WALTER, Joseph A. Prato and Ann L. Prato, t/d/b/a Joey’s Place, and Richard E. Griggs and Jane D. Griggs, t/d/b/a Diamond-Lite Steak House and Cocktail Lounge.
    Superior Court of Pennsylvania.
    Submitted July 25, 1984.
    Filed Oct. 26, 1984.

      Richard J. Callahan, Williamsport, for appellant.
    David R. Bahl, Williamsport, for Walter, appellee.
    Michael J. Casale, Jr., Williamsport, for Prato, etc., appellees.
    Clifford A. Rieders, Williamsport, for Griggs, appellees.
    Before CIRILLO, MONTEMURO and CERCONE, JJ.
   MONTEMURO, Judge:

Ormond E. Peluso, individually and as administrator of the estate of Noelle Marie Peluso, deceased (hereinafter appellant), the plaintiff below, has appealed from the order of the Court of Common Pleas of Lycoming County per the Honorable Robert J. Wallet, granting summary judgment in favor of Joseph A. Prato and Ann L. Prato, trading and doing business as Joey’s Place (hereinafter appellees). We reverse.

Under the Rules of Civil Procedure, Pa.R.C.P. 1035(b), a party shall be entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977), the court explained:

The burden of demonstrating that no genuine issue of material fact exists and that one is entitled to a judgment as a matter of law, is on the moving party, and the record must be examined in the light most favorable to the non-moving party. (Citations omitted). In McFadden v. American Oil Co., 215 Pa.Super. 44, 48-49, 257 A.2d 283, 286 (1969), this court noted:

“In passing upon a motion for summary judgment, the trial court’s function is not to decide issues of fact, but solely to determine whether there is an issue of fact to be tried. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party ____ Finally, a summary judgment should be granted only when the case is clear and free from doubt.”

Id., 249 Pa.Superior Ct. at 245, 376 A.2d at 249-50.

The appellant’s cause of action arose out of an incident wherein appellant’s decedent, Noelle Marie Peluso, was killed when struck by a motor vehicle driven by defendant, Wayne Walter. Walter was found to have been intoxicated at the time of the accident; a blood test performed shortly after the accident disclosed a blood alcohol level of ,15%.

Subsequently, the appellant commenced a wrongful death and survival action against Walter, and at the same time commenced an action against the appellees and against Richard E. Griggs and Jane D. Griggs, trading and doing business as Diamond-Lite Steak House and Cocktail Lounge based on violation of the Dram Shop Act. Various pleadings were filed and depositions taken which revealed the following facts as summarized in the opinion of the lower court:

During the afternoon of August 23, 1981, defendant Walter consumed six (6) or seven (7) 12-ounce beers while participating in a float on the Susquehanna River, which ended at approximately 4:15 or 4:30 p.m. (See Walter deposition, p. 6). Defendant Walter then arrived at Prates’ tavern between 5:30 and 6:00 p.m. (Walter deposition, p. 7), where he consumed four (4) mugs of beer and stayed at Pratos’ until 6:30 or 6:45 p.m. (Walter deposition, p. 8). Defendant Joseph Prato denied serving Walter while visibly intoxicated (see Prato deposition, p. 22). He returned to the home of Diane Morris and ate a sandwich he had purchased at Pratos’. (Walter deposition, p. 9). At approximately 7:00 p.m., defendant Walter drove toward the Diamond-Lite Steak House and Cocktail Lounge (Walter deposition, p. 10). While at the Diamond-Lite, Walter consumed approximately two (2) more beers (Walter deposition, p. 11). Walter left the Diamond-Lite and stopped at the Scat gasoline station at approximately 7:15 p.m., where he was visibly intoxicated (See Buss affidavit).' At the scene of the accident, Walter was visibly intoxicated.

Lower Court Opinion 2-3.

The lower court determined that based on the deposition testimony of Joseph Prato there was no evidence that Walter was visibly intoxicated when served alcoholic beverages at the Prato Tavern. Consequently, he found that summary judgment was appropriate.

It is true that in order to sustain an action based on the Dram Shop Act against the appellees, the appellant must demonstrate that the appellees, or their agents or employees, served alcoholic beverages to Walter when he was visibly intoxicated. However, the present state of the record is such that there is only the testimony of Joseph Prato concerning Walter’s physical condition while he was at the Prato Tavern prior to the accident. This type of testimony, however, is incompetent to support a motion for summary judgment:

“Testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury.”

Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 183, 439 A.2d 652, 662 (1981), quoting, 2 Goodrich Amram 2d § 1035(b): 4 at 434-435. In Curran, the court reiterated the rule set forth in Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), as it applies to summary judgments. Consequently, we cannot accept appellee’s assertions as being true, and accordingly, the question of whether Walter was visibly intoxicated when being served at the appellees’ tavern prior to the accident must be submitted to the jury.

In accordance with this finding, the order of the lower court granting summary judgment is vacated, and the case remanded.

Vacated and remanded. Jurisdiction is relinquished.

      . On March 15, 1982, Walter pled guilty to driving under the influence of alcohol (75 Pa.C.S. § 1547), and homicide by vehicle (75 Pa.C.S. § 3732).

      . Act of April 12, 1951, P.L. 90, art. iv, § 497 added Act of December 22, 1965, P.L. 1144, No. 441 § 1, 47 P.S. § 4-497.


author: TAMILIA, Judge: JOHNSON, Judge,

text:
    483 A.2d 907
    In the Interest of Derrick JACOBS. Appeal of the COMMONWEALTH of Pennsylvania.
    Superior Court of Pennsylvania.
    Submitted June 8, 1984.
    Filed Oct. 26, 1984.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   TAMILIA, Judge:

In this case, the Commonwealth appeals the expungement of a juvenile record in the face of statutory restrictions it alleges were ignored by the court below. Issues raised by this case are:

(1) Whether an increase in the restriction imposed by the legislature on the expungement of a record of a juvenile consent decree, after that decree was entered, serves as an ex post facto increase in penalty.
(2) Whether the court without a hearing, may expunge the record of a petition filed by the Commonwealth, when said petition was refiled after it had been withdrawn without prejudice by the Commonwealth to enable respondent to enter the service, and he failed to do so.

We answer both questions in the negative and reverse the court below.

On December 5, 1980, respondent, Derrick Jacobs, age 16, was apprehended inside a Temple University women’s dormitory in possession of a seven (7) inch butcher knife, a length of clothes line, and a cloth and wire gag. As a result of this activity a petition was filed in the Juvenile Section, Family Division, Court of Common Pleas of Philadelphia County. Subsequently, pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6340, a consent decree was entered. At the successful completion of the terms of probation, pursuant to the consent decree, the case was closed.

On June 3, 1982, the respondent was found on the premises of the Pepper, Hamilton and Scheetz law firm, in the company of another, without permission of the proprietors, while the premises were closed to the public. By petition dated June 7, 1982, he was charged with Burglary (F), Theft, Receiving Stolen Property, Criminal Trespass (F), and Criminal Conspiracy. Before this petition reached an adjudicatory hearing, it was withdrawn on June 28, 1982 by the Commonwealth, without prejudice, to enable the respondent to enter the service. When the district attorney learned some time later that respondent had not entered the service, that office reinstated the petition and sought an adjudicatory hearing. On January 13, 1983, the Juvenile Section Judge declined to allow such a hearing. Subsequently, on April 11, 1983, a petition for argument and expungement of the record was presented and continued to May 4, 1983, when expungement of the entire juvenile record was granted. This appeal followed.

It is clear that under the Criminal History Record Information Act, 18 Pa.C.S.A. § 9101 et seq. (hereafter called C.H.R.I.A.) expungement of the record was improper unless there was a violation of the ex post facto section of the Federal Constitution, U.S. Constitution, Article I, § 10, or the Pennsylvania Constitution, Article I, § 17.

C.H.R.I.A. provides:
§ 9123 Juvenile Records
(a) Expungement of juvenile records. — ... except upon cause shown, expungement of records of juvenile delinquency cases wherever kept or retained shall occur after ten days notice to the district attorney, whenever the court upon its motion or upon the motion of a child or the parents or guardian finds:
(1) a complaint is filed which is not substantiated or the petition which is filed as a result of a complaint is dismissed by the court other than as a result of a consent decree;
(2) five years have elapsed since the final discharge of the person from commitment, placement, probation or any other disposition and referral and since such final discharge, the person has not been convicted of a felony, misdemeanor or adjudicated delinquent and no proceeding is pending seeking such conviction or adjudication; or
(3) the individual is 21 years of age or older and a court orders the expungement.

By express language, a child subject to a consent decree may not have his record expunged unless he meets the tests enumerated in the statute. Here, respondent was free of criminal activity after his case was closed for less than 2 years, assuming he entered upon the consent decree in December 1980. His case was closed six months later in June 1981, and he was subsequently arrested on the second burglary charge in June 1982. A second petition was pending although the court below refused to reschedule a hearing, and respondent had not reached 21 years of age. Thus, none of the requirements of the Act had been met, and as the court below recognized, expungement was reversible error. (T.T. p. 32)

Unquestionably, the lower court was attempting to do a charitable and humane act in regard to the respondent. If respondent had successfully entered the service, the issue would not be before us and the district attorney would have considered this to be an adequate disposition for a young adult who was skirting serious criminal behavior.

The purpose of C.H.R.I.A. is to provide an opportunity for children who crash upon the reef of criminal behavior to leave behind the damaging effect of such collision upon a showing that they had exercised sufficient restraint as to reasonably assure the authorities that total redemption was justified. C.H.R.I.A. gave the delinquent and dependent child something they never before had. Although the intent and promise of the juvenile justice movement in this State and Country since the Act of April 23, 1903, P.L. 274 was declared constitutional in Commonwealth v. Fisher, 213 Pa. 48, 62 A. 198 (1905), was to insulate the child from the harshness of the criminal law and to provide treatment and rehabilitation instead of punishment, there was always an elusive stigma attached to an adjudication of delinquency and/or dependency, which the expungement act sought to eliminate. The balance clearly proposed by the legislature was to give the child this additional benefit, but only if deserving, for there is an equal consideration of protection of public safety by having the record of the child available if his chronic behavior and course of conduct presage adult criminal behavior. It has long been the law of Pennsylvania, and other jurisdictions, that juvenile records could be considered during the sentencing of an adult with a prior juvenile record. See Pennsylvania Sentencing Guidelines, 42 Pa.C.S.A. § 9721; Consideration of Accused’s Juvenile Court Record in Sentencing for Offense Committed as Adult, 64 A.L.R.3d 1291.

Appellee argues that the statute, as it was in effect in 1980, gave respondent a vested right to expunction which cannot be denied by the present law. We cannot agree.

In a similar situation, Edward M. v. O’Neill, 291 Pa.Super. 531, 436 A.2d 628 (1981), this Court held the lower court had no right to expunge fingerprint and photographic records of a juvenile even though there was no statutory right to obtain such identification until some time after the arrest of the juveniles. The two juveniles were arrested in March and April, 1979, fingerprinted and photographed the same day. The statute providing express authority permitting fingerprinting and photographing of juveniles (42 Pa.C. S.A. Juvenile Act § 6308(c)) was not enacted until February 29, 1980, effective sixty days thereafter. In the absence of a statutory provision prohibiting police to fingerprint, the court had no right to expunge records, except pursuant to statute, such as was later enacted in the Juvenile Act, supra, and C.H.R.I.A., 18 Pa.C.S.A. § 9123(a), Expungement of juvenile records.

Expungement, as noted by appellee, is a question of due process. In analyzing the effects of a juvenile consent decree, our Court has compared it with Accelerated Rehabilitative Disposition (A.R.D.) in the adult criminal system. Commonwealth v. Briley, 278 Pa.Super. 363, 420 A.2d 582 (1980). Briley held that upon successfully completing an A.R.D. program, “The Commonwealth has the burden of justifying the retention [of arrest records].” Id., 278 Pa.Superior Ct. 370, 420 A.2d at 586. Citing Briley, our Supreme Court in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), used a balancing test in which the Commonwealth was required to establish an overriding interest in retaining the arrest record of a female juvenile who had a single arrest for possession of marijuana, successful completion of the consent decree probation, no further criminal involvement for four years, and current employment as a cashier after reaching her 18th birthday. There the Commonwealth could not meet that burden. Accord, Commonwealth v. Chacker, 320 Pa.Super. 402, 467 A.2d 386 (1983). In O’Neill, supra, the court held that a balancing test, as applied to a juvenile who had been adjudicated delinquent, would support the Commonwealth’s overriding interest in retaining the records. In Commonwealth v. Rose, 263 Pa.Super. 349, 351, 397 A.2d 1243, 1244 (1979), this Court, relying on Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976), stated:

The judicial remedy of expunction is an adjunct to the inherent rights of Due Process and is not dependent on express statutory authority. However, expunction is proper only in cases where acquittal is consistent with a finding of real innocence and is not a result of legal technicalities unrelated to questions of guilt or innocence.

In Wexler, supra, the Supreme Court held:

... [I]f the Commonwealth does not bear its burden of proof beyond a reasonable doubt, or admits that it is unable to bear its burden of proof, the Commonwealth must bear the burden of justifying why the arrest record should not be expunged. (Citations omitted) (Emphasis in original)

Id., 494 Pa. at 331, 431 A.2d at 880. Commonwealth v. Chacker, supra, 320 Pa.Superior Ct., footnote 2, p. 409, 467 A.2d, footnote 2, p. 390, adopts this reasoning. Thus, in keeping with Malone, Wexler and Chacker, where the Commonwealth has established a prima facie case and, as here, goes on to show conditional release of the defendant, the violent and threatening aspects of the crime, and subsequent arrest within a short time thereafter, it has carried its burden of proving a substantial interest in retaining the records.

Briley, supra, extended an exception to A.R.D. cases because the district attorney provided close preliminary scrutiny to such cases, and the effect of A.R.D. completion was akin to acquittal by a jury. By analogy the same consideration has been applied to consent decrees although there is a distinction between the two in that the court can direct a consent decree be entered in relation to a juvenile respondent, whereas, the court is powerless to order A.R.D. if opposed by the district attorney. Commonwealth v. Boerner, 268 Pa.Super. 168, 407 A.2d 883 (1979) appeal dismissed, 491 Pa. 416, 421 A.2d 206 (1980); Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977).

As to the present respondent, assuming we accept the argument of appellee, that we must deal with him in the context of the statute as it was written at the time of his arrest, 18 Pa.C.S.A. § 9123(a) provided that an expungement of juvenile arrest and court records shall be ordered unless upon cause shown to the contrary. In the Interest of John W, 300 Pa.Super. 293, 298, 446 A.2d 621, 624 (1982). Here we believe the district attorney has clearly established cause to prevent expunction because of the serious nature of respondent’s behavior, as detailed in the facts on the record, including the second arrest within less than two years on burglary and related offenses.

As to the ex post facto argument, appellee must likewise fail. In the Act of 1979, July 16, P.L. 116, No. 47, § 2, effective January 1, 1980, 18 Pa.C.S.A. § 9123(a)(1) provided expunction could be ordered when the court finds: “a complaint is filed which is not substantiated or the petition which is filed as a result of a complaint is dismissed by the court other than as a result of an informal adjustment. ” [Emphasis added.] Recognizing its error in treating a non formal proceeding (informal adjustment) as one requiring serious consideration when it failed to recognize the more structured custodial approach indicated by the consent decree, the legislature within 7 days of the filing of In the Interest of John W., by amendment of 1982, June 11, P.L. 476, No. 138, § 4, effective in 180 days, at the end of paragraph (1) of subsection (a), substituted “a consent decree” for “an informal adjustment.” The legislature, by its action, interchanged the two proceedings and where informal adjustment was formerly regulated by statute and was treated in the same fashion as an adjudication, consent decrees under the 1982 amendment fell into that class. In either case, as discussed above, a consent decree under the facts of this case, cannot be expunged, where, as here, the Commonwealth has established cause to prevent expunction. Appellee’s argument, that the 1982 C.H.R.I.A. amendment cannot apply to respondent, must fail because In the Interest of John W., supra held that a law cannot be considered to be ex post facto in effect unless it alters the respondent’s position to his disadvantage. By applying C.H.R.I.A., respondent could not have his record expunged and by applying the standards in effect before C.H.R.I.A., the Commonwealth established cause to prevent expungement.

As to the expungement of the second petition, this too is impermissible as the Commonwealth had the right to reinstate the second petition charging burglary, and the court could not expunge this petition without a finding, pursuant to C.H.R.I.A., that the petition was unsubstantiated. (18 Pa.C.S.A. § 9123(a)(1)). This the court failed to do.

Order of expungement is vacated.

Jurisdiction relinquished.

JOHNSON J., filed a concurring opinion.

JOHNSON, Judge,

concurring:

I join in the majority’s disposition of this case. Nevertheless, I think it necessary to clarify one point.

Prior to the passage of the Criminal History Records Information Act, 18 Pa.C.S. § 9101 et seq. (CHRIA), the remedy of expungement was held to exist as an adjunct of due process. Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976). However, as stated by the majority, expungements under due process have been held to be limited to those cases where an acquittal is consistent with a finding of real innocence and is not a result of legal technicalities unrelated to questions of guilt or innocence. Edward M. v. O’Neill, 291 Pa.Super. 531, 436 A.2d 628 (1981).

Subsequent to the Malone decision, CHRIA was enacted. The relevant sections of this Act are set forth in the majority opinion and it is not necessary to repeat those provisions here. It is sufficient to state that, insofar as juvenile records are at issue, an individual can get his or her record expunged, except upon cause shown, if certain conditions set forth in the statute are met.

It should be observed, however, that the expungement remedies allowed under CHRIA are in addition to those already extant under due process. See Interest of Lowe, 302 Pa.Super. 271, 274 n. 4, 448 A.2d 632, 633 n. 4 (1982); Edward M. v. O’Neill, 291 Pa.Super. at 544, 436 A.2d at 634. As noted in these two cases, it is possible that an individual may fail to meet the requirements under one type of expungement procedure yet may satisfy the requirements of the other.

I do not, with this opinion, express a view regarding appellee’s possibilities of obtaining expungement under due process. My intent is only to highlight the difference between expungement cases under due process and under CHRIA.

      . Chacker also specifically overrules Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978), on the basis of the above language in Wexler. We would note that in commenting on Mueller, the Chacker court relied on Wexler as sub silentio ruling out any affirmative burden on the defendant to show by compelling evidence, justification for expungement of the arrest record, if the Commonwealth has established a prima facie case. Mueller held that where the Commonwealth has established a prima facie case of guilt on the part of the accused, he will then have the burden to affirmatively demonstrate nonculpability, otherwise his petition to expunge will be denied. Mueller, 258 Pa.Superior Ct. at 223, 392 A.2d at 765. We would offer a note of caution, in that in Mueller, the Commonwealth had a strong case, which was dismissed only because of a technical rule 1100 problem, whereas in Wexler, the Commonwealth had a weak case and nolle pressed it because it believed it could not establish its proof beyond a reasonable doubt. Wexler was silent as to whether a mere technical violation, resulting in dismissal, should receive the same treatment as the matter there at issue, which was a dismissal because of failure of proof beyond a reasonable doubt. Since Mueller was cited by the Court in Wexler, and not specifically overruled, contrary to the holding in Chacker, the two circumstances detailed above, which trigger the Commonwealth’s burden of proof, may require different consideration.