author: DEL SOLE, Judge: CIRILLO, Judge, dissenting.

text:
    655 A.2d 163
    COMMONWEALTH of Pennsylvania v. Eric REISS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1994.
    Filed Feb. 28, 1995.
    Petition for Allowance of Appeal Granted August 22, 1995.

      Robert E. Stewart, Pittsburgh, for appellant.
    Before ROWLEY, President Judge, and CIRILLO and DEL SOLE, JJ.
   DEL SOLE, Judge:

Appellant, who was tried and convicted by a jury of numerous charges resulting from burglaries which occurred on the campus of Pennsylvania State University, takes this appeal from the Judgment of Sentence he received. On appeal he makes numerous claims, which upon review of the law as it applies to the facts of this case, we find to be without merit.

Initially, Appellant challenges the trial court’s rulings with respect to the suppression of evidence. He claims that the Pennsylvania Constitution prohibits the use of deceptive practices of the part of police to gain entry into a home, an event which he asserts occurred here. Further he submits that his indication that he wished to speak to an attorney on a written consent form should have been honored, and since it was not, all statements made subsequent to that indication should have been suppressed. Because the resolution of these claims rests on the particular facts of this case, we begin by recounting them.

As part of an ongoing investigation, Mr. Leon Gefert was arrested by police and later agreed to cooperate with them. Gefert advised the police that he knew Appellant was involved in stealing computers and other equipment and agreed to go with an undercover officer and attempt to meet Appellant at his apartment to confirm that he had possession of these items. After telephoning Appellant agreed Gefert traveled to Appellant’s apartment with the officer and introduced him to Appellant as a cousin. While Appellant and Gefert talked, the officer noticed computer equipment which matched the description of the equipment which had been reported stolen. After exiting, the undercover officer met with Officer Sowerby in the back of the building and advised him of his observations inside Appellant’s apartment. Sowerby and a criminal investigator, John Wilson, then went to Appellant’s door, knocked and announced themselves as police. Appellant answered the knock, and Sowerby advised him that they were there to investigate stolen computer equipment and asked if Appellant would consent to a search of the apartment. Appellant was read his Miranda rights, and was read and responded verbally to a consent form. He was then given the form to fill out and sign, which he did, and the search proceeded, yielding many stolen items of equipment. Appellant pointed out the location of many of the items and advised the officers from where they had been obtained.

Appellant’s first claim concerns the undercover officer’s actions in gaining entry into Appellant’s apartment under a misrepresentation. Appellant argues that the Pennsylvania Constitution, Article I Section 8, affords defendants greater protection than that afforded under the federal constitution, and that the deceptive practice employed in this case must cause the fruits of this search and any later search to be suppressed. Although the question of deceptive police practices under thé Pennsylvania Constitution is interesting and novel, it need not be reached under the circumstances presented in this case. While it was acknowledged that the police gained entry through a ruse and from that entry made observations of what they perceived to be stolen goods, the police did not seize the property on this occasion, nor did they use the information acquired while in the apartment in support of an effort to obtain a warrant. If either of those events had occurred, it would be necessary for us to undergo the extensive analysis of our Pennsylvania Constitution and the role of deceptive police practices as it relates to our state’s protection of privacy. However, under the undisputed facts of this case, after Gefert and the undercover officer left, two other officers arrived at Appellant’s apartment, advised Appellant of their identity and purpose and gained entry with Appellant’s permission to search. Thus, while it may be argued that true consent was not given at the time of the initial search by the undercover officer, this situation did not give rise to the receipt of evidence in this case. The actual search and seizure which formed the basis for the charges filed against Appellant came after Appellant gave his consent to people he knew were police officers and for a purpose for which he was advised.

In Commonwealth v. Haynes 395 Pa.Super. 322, 577 A.2d 564 (1990), the police deceived the defendant concerning the reasons why they asked him to accompany them to the Public Safety Building. While the defendant agreed to go to clear up an outstanding bench warrant, the police desired to have him travel into their jurisdiction where he was questioned about his participation in a homicide. Although the court reviewed the deception issue under a Fourth Amendment analysis, the court included general statements of law which apply to questions of whether a consent was valid. The court stated:

That common thread is that the deception must not pertain to the consent itself, in some sense it must be collateral to the content of the permission voluntarily granted. Thus, the accused must know what is being consented to, and if the police exceed the scope of that consent, then they have passed their limits of permissible deception. This is consistent with the line of cases which have held that if the accused does not understand what it was that was consented to, then the consent is invalid.

Id. at 337, 577 A.2d at 572. (citations omitted.)

In the instant case, although Appellant was deceived by the undercover officer’s identity and purpose for entry, no evidence was gathered directly as a result of his entry. The police did not use information gathered by the officer to obtain a warrant, nor did the undercover officer seize incriminatory items at that time. Rather the officer advised others of what he saw, and then police knocked on Appellant’s door and sought his consent for a search. At this time Appellant was not being deceived. He knew that the police were at his door, he knew why they were there and he knew that they wished to search for stolen equipment. There is no indication from the record that the consent given by Appellant in this case was anything other than freely made and informed. This conclusion makes any discussion of the propriety of the undercover officer’s actions unnecessary. See Commonwealth v. O’Shea, 523 Pa. 384, 567 A.2d 1023 (1989) (where even if police acted outside their jurisdiction, the warrantless search was justified by the freely given and informed consent of the homeowners.) Contrast Commonwealth v. Daniels, 410 Pa.Super. 275, 599 A.2d 988 (1991) (where consent found to be invalid because it was the product of an illegal detention and not the result of an independent act of free will.)

Regardless of our conclusion concerning this first issue, Appellant argues that the evidence and statements made to police officers at his apartment should be suppressed because he indicated on the consent form that he wished to speak to an attorney. The form is printed on one page and consists of five questions and a signed statement. Appellant answered, “yes” to every question, including the one which read “Do you want to consult your attorney?”. In contradiction, Appellant signed the following statement a few lines down on the same page:

I, Eric Reiss (signed) have read this statement of my rights and I understand what my rights are, I do not want the advice of an attorney at this time. I understand what I am doing and know that I can have the advice of counsel at anytime. No promises or threats have been made to me nor has pressure or coercion of any kind been used against me to obtain my consent.

Appellant signature again appears at the bottom of the page following this statement.

Appellant argues that because he answered the question concerning his desire for an attorney affirmatively on the consent form, all questions to him should have ceased, and because they did not, his responses should have been suppressed.

The test for determining whether an accused’s statements are voluntary and whether a waiver is valid is the totality of the circumstances. Commonwealth v. Carter, 377 Pa.Super. 93, 546 A.2d 1173 (1988). Thus the fact that Appellant responded “yes” to the question regarding an attorney on the consent form, must be looked at as part of entire circumstances.

The police investigator on the scene testified at the pre-trial hearing that Appellant was read his Miranda rights, he had no questions about what was said, and he never indicated that he desired to have an attorney present. Appellant was then given the written form and went over the contents of it with Officer Wilson. Wilson testified that he read the form to Appellant and asked for verbal responses. According to Wilson’s testimony, Appellant indicated that he would consent to a search and that he answered “no” when questioned as to whether he wished to consult with an attorney. Appellant was then handed the form and asked to respond in writing to the questions and to sign the waiver on the bottom. The signed copy was returned to Officer Wilson and the search then proceeded without objection or any mention of an attorney by Appellant. Wilson testified that the first he became aware of the affirmative response to the question regarding an attorney was when he was advised that a suppression hearing was to be held on the matter. Wilson further testified that Appellant was “extremely cooperative”, and characterized him as “the most cooperative person in this situation that I have ever encountered in my professional career.”

The trial judge in this instance accepted the Commonwealth’s version of events which led the court to conclude that Appellant’s oral responses evidenced voluntary cooperation. Assessing the credibility of witnesses is clearly not an appropriate function for an appellate court. Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982). In this case the details of the events which transpired regarding the consent, coupled with the fact that Appellant made conflicting statements regarding his desire for an attorney on the consent form itself, leads sufficient support for the court’s refusal to suppress evidence.

In his next three claims Appellant objects to action taken by the trial court. First he asserts that the court erred in failing to grant his request to strike nine jurors for cause. These people were employees of Pennsylvania State University. Appellant reasons that because the University was the subject of his criminal activity, the jurors could not be impartial based upon their situational and financial relationship to the University.

A challenge for cause should be granted where a prospective juror has such a close relationship, familial, financial, or situational with a party that the court will presume a likelihood of prejudice or one is demonstrated by conduct and answers to questions. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985). The test the court should employ for determining whether a prospective juror should be disqualified “is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor.” Id. at 454, 490 A.2d at 818. In this case the court questioned the prospective jurors and was satisfied with their statements that they would be fair and impartial. Accordingly, we are unable to conclude that the trial court abused its discretion in refusing to strike these individuals from the jury.

We also find no abuse of discretion in the trial court’s decision limiting the defendant’s cross examination of Leon Gefert. When Appellant’s counsel sought to ask Mr. Gefert if he was aware of that the maximum penalty for burglary was 10 to 20 years, the Commonwealth’s objections were sustained. We find no abuse of discretion in this ruling since counsel was permitted to question Gefert about his pending burglary conviction and the fact that his cooperation with the police was done with the hope of receiving consideration for ARD.

Appellant’s remaining claim regarding the admission or exclusion of evidence concerns what Appellant characterizes as the admission of uncharged and unrelated crimes committed by him. Appellant complains that his taped interview with the police, which was not only heard by the jury but also transcribed for the jurors, contained inculpatory statements regarding other criminal activity. For purposes of review we note that Appellant has failed to identify for this court exactly which statements he finds objectionable in the seventeen page transcribed copy of his interview. See Pa.R.A.P., Rule 2132, 42 Pa.C.S.A. Furthermore, the trial court noted that defense counsel chose to wait until mid-trial to propose redaction of the tape and editing of the transcript. This action would have required a considerable delay and the court concluded it was not necessary in view of the fact that defense counsel was fully aware of the contents of the tape prior to trial. The court also noted that it found nothing in the tape which required redaction and the entry of the tape was critical to the Commonwealth’s case to rebut the defense of police coercion. Under these circumstances we find no merit to Appellant’s claim.

Appellant next objects to the sufficiency of the evidence produced by the Commonwealth to establish the value of the items stolen which formed the basis for the theft convictions. Appellant argues that only the retail value and not the fair market value at the time of the crime was ascertained, therefore, the value should be set at less than $50.00 and the offenses graded as misdemeanors of the third degree. We fail to see the logic of Appellant’s reasoning. Appellant was being tried for the burglary and theft of computer equipment which in many instances was valued by the witnesses as being worth many thousands of dollars. The Commonwealth presented witnesses who were familiar with the equipment and its costs and so testified for the jury. The jury was only required to decide whether the stolen equipment was valued above a certain amount. In every instance it would have been illogical to conclude that the value did not exceed $50.00. “The Commonwealth is not required to establish the precise market value of the stolen property. Rather the Commonwealth must present evidence from which a reasonable jury may conclude that the market value was at least a certain amount.” Commonwealth v. Hanes, 361 Pa.Super. 357, 365, 522 A.2d 622 (1987). We cannot conclude that the jury did not have before it sufficient evidence from which it could make a reasonable determination of the value of the items in question.

Lastly Appellant complains that the court erred by not stating on the record at sentencing the reason for the imposition of a sentence of total incarceration. A review of the sentencing transcript indicates that a presentence investigation was conducted in this case as well as a sentencing memorandum prepared on behalf of Appellant. Appellant’s counsel advised the court that an individual in the local school district was willing to accept Appellant to do community service, he reminded the court of Appellant’s cooperation with authorities and spoke of the devastating impact Appellant’s crime has had on his family. Although the court did not specifically list the reasons why it believed it was necessary to incarcerate Appellant for a period of time, the requirement that a court make such a disclosure on the record is satisfied where the judge has the benefit of a presentence report. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Where the court has been informed by means of a presentence report, the sentencing court’s discretion should not be disturbed. Id. Because Appellant has failed to provide us with any reason to conclude that the court abused its discretion, we affirm the Judgment of Sentence in this case.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge, dissenting.

I believe that Article I, Section 8 of the Pennsylvania Constitution, which protects the right of the people to be secure from unreasonable searches and seizures, prohibits the type of deceptive practices which were utilized by the police in this case. Therefore, I respectfully dissent.

In February, 1992, police conducted an investigation into a series of burglaries and computer thefts which had occurred at Pennsylvania State University. The investigation resulted in the identification of Leon Gefert as a suspect in the commission of the burglaries and thefts. Gefert was a friend and associate of the Appellant, Eric Reiss. Gefert was arrested and, following his preliminary hearing on charges related to burglary and computer theft, he informed the police that Reiss may have been involved in these crimes. Gefert subsequently agreed to cooperate with the police in obtaining additional information from Reiss.

On February 12th, the police proceeded with a plan to use Gefert to gain access to Reiss’ apartment in an effort to uncover incriminating evidence against Reiss with regard to the burglaries and computer theft. It was agreed that Officer David Jordan, of the Pennsylvania State University Police, would accompany Gefert on a visit to Reiss’ apartment. It was also agreed that Officer Jordan would be held out to Reiss as Gefert’s cousin “John Stockey.” Officer Jordan was to accompany Gefert into Reiss’ apartment for supposedly three reasons: (1) to provide safety to Gefert, (2) to verify the presence of the stolen computer equipment within Reiss’ apartment, and (3) to insure that Gefert would truthfully and fully relay what had transpired within the apartment since Gefert and Reiss were friends.

Gefert contacted Reiss by telephone and persuaded Reiss to meet him at Reiss’ apartment to discuss a “serious matter.” Upon arriving at Reiss’ apartment with Officer Jordan, Gefert and Officer Jordan were admitted by Reiss, and Gefert introduced Officer Jordan to Reiss as Gefert’s cousin. Reiss then led Gefert and Officer Jordan to his bedroom to discuss Gefert’s concerns. It was at this time that Officer Jordan observed a computer in Reiss’ bedroom which matched the description of the computer which Gefert told police he had sold to Reiss. Officer Jordan also heard Reiss make an incriminating statement. Gefert and Officer Jordan then exited Reiss’ apartment.

After leaving Reiss’ apartment, Officer Jordan immediately related the discovered information to Pennsylvania State University Officer Tom Sowerby and State College Bureau Police Investigator John Wilson, who were waiting outside Reiss’ apartment. Officer Jordan informed Officers Sowerby and Wilson that the computer in Reiss’ bedroom matched the computer described by Gefert as the stolen computer sold by Gefert to Reiss. Following receipt of this information, Officers Sowerby and Wilson went to Reiss’ apartment within five minutes of Gefert’s and Officer Jordan’s departure from the apartment and asked to be admitted. Once inside Reiss’ apartment, Officer Sowerby informed Reiss that he and Officer Wilson were there to investigate recent computer thefts at the University and Reiss was asked if he would consent to a search of his apartment.

Reiss consented to a search of his apartment and, in fact, was extremely cooperative with the police. Reiss assisted the police in the search of his apartment by identifying exactly what items had been stolen. The search resulted in such a large number of stolen items that a truck was necessary to transport the stolen property. Reiss now maintains that the initial search by Officer' Jordan, as well- as the subsequent search by Officers Sowerby and Wilson, were violative of this state’s constitutional prohibition against unreasonable searches and seizures, thereby requiring the suppression of all evidence obtained by Officers Sowerby and Wilson as a result of the search of his apartment. I respectfully submit that because the initial search of Reiss’ apartment by Officer Jordan was unconstitutionally deceptive, and, therefore, illegal, all of the evidence obtained as a result of this illegal search should have been suppressed.

Prior to trial, Reiss filed an omnibus pretrial motion challenging the searches of his residence, as well as the statements made subsequent to these searches. The motion was denied and Reiss was convicted by a jury of burglary (three counts), criminal trespass (four counts), theft (four counts), and one count each of criminal mischief and receiving stolen property. Reiss now questions, inter alia, the denial of his suppression motion by the trial court.

When we review an order denying a motion to suppress evidence, we must determine whether the factual findings of the trial court are supported by the evidence of record. Commonwealth v. Donahue, 428 Pa.Super. 259, 278, 630 A.2d 1238, 1247 (1993) (citations omitted). In making this determination, this court may only consider the evidence of the Commonwealth’s witnesses, and so much of the witnesses for the defendant, as fairly read in the context of the record as a whole, which remains uncontradicted. Id. If the evidence supports the findings of the trial court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are erroneous. Id. In addition, we note that “when ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence was obtained in violation of the defendant’s constitutional rights.” Commonwealth v. Haynes, 395 Pa.Super. 322, 333, 577 A.2d 564, 570. See Pa.R.Crim.P. 323(i). In this case, the trial court made conclusions of law which, I submit, are erroneous under the current law in Pennsylvania. The trial court concluded, based on the facts previously set forth, that “no ‘search’ was conducted by Officer Jordan” when Officer Jordan surreptitiously entered Reiss’ apartment and viewed evidence and heard statements.

The Pennsylvania Supreme Court has held that “[t]he term ‘search’ as applied to searches and seizures is an examination of an individual’s house, buildings or person, for the purpose of discovering contraband or some evidence of guilt to be used in the prosecution of a criminal action.” Commonwealth v. Gibson, 536 Pa. 123, 128, 638 A.2d 203, 205 (1994) (citing Commonwealth v. Anderson, 208 Pa.Super. 323, 222 A.2d 495 (1966)); see also Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987) (holding that a search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed). It is undisputed that the reason Officer Jordan entered Reiss’ apartment was to examine this individual’s home for the purpose of discovering some evidence of guilt to be used in the prosecution of the burglaries and computer thefts. Thus, it is clear that Officer Jordan’s observations within Reiss’ apartment amounted to a search. Gibson, supra 536 Pa. at 131, 638 A.2d 207.

The trial court’s erroneous conclusion that no search was conducted by Officer Jordan is not corrected by the assertion that no search occurred because Officer Jordan observed the stolen property in plain view in Reiss’ bedroom. While it is true that evidence within the plain view of police can be seized without a warrant under the plain view exception, it is also true that, in order for that evidence in plain view to be seized without a warrant, there must be a prior valid intrusion. Gibson, 536 Pa. at 131, 638 A.2d at 207; see also Commonwealth v. Black, 365 Pa.Super. 502, 507, 530 A.2d 423, 426 (1987) (holding that “[a] policeman ordinarily need not secure a warrant before confiscating contraband which he observes in plain view; however, he cannot properly seize evidence which he uncovers after entering a place where he has no legal right to be.”) (citations omitted).

In Gibson, the Pennsylvania Supreme Court held that because the police did not have probable cause to enter the apartment initially, and therefore were not legitimately on the premises when they observed the defendants engaged in underage drinking, the plain view exception to the warrant requirement did not apply. Id. Presently, the police did not have a warrant to enter and search Reiss’ apartment. Furthermore, as in Gibson, the police in the instant case did not have probable cause to enter Reiss’ apartment initially. “Probable cause exists where the facts and circumstances within the officers’ knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.” Gibson, 536 Pa. at 130, 638 A.2d at 206. Suspicion is no substitute for probable cause. Id.

The only information available to police at the time Officer Jordan entered Reiss’ apartment was an unsubstantiated rumor that Reiss was involved in the computer thefts and Gefert’s statements that he had sold Reiss a stolen computer and that Reiss had also been involved in the burglaries and thefts. This information hardly amounts to probable cause to search a person’s home. In fact, the Commonwealth admitted in its proposed findings of fact and conclusions of law that:

[cjlearly the information provided by Gefert was stale, given his having been away from the area for a month or more prior to the visit on February 12, 1992, and there was no way that a search warrant could have been properly issued on the basis of information available to police prior to this visit of Gefert and Officer Jordan.

In light of the information obtained by police prior to Officer Jordan’s entrance to Reiss’ apartment, it is clear that probable cause did not exist at that time and that the information only supported their suspicions that Reiss may have been engaged in criminal activity. “The seriousness of the criminal activity under investigation, whether it is the sale of drugs or the commission of a violent crime, can never be used as justification for ignoring or abandoning the constitutional right of every person in this Commonwealth to be free from intrusions upon his or her personal liberty absent probable cause.” Commonwealth v. Rodriquez, 532 Pa. 62, 73, 614 A.2d 1378, 1383 (1992). Moreover, “ ‘suspicions’ of criminal activity are not the standard which our constitutional system has chosen to safeguard the rights of citizens against arbitrary intrusions by the government.” Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987) (en banc), aff'd by an equally divided Court, Commonwealth v. Schaeffer, 539 Pa. 271, 652 A.2d 294 (1994).

As in Gibson, the police did not have probable cause to enter Reiss’ apartment initially, and, therefore, Officer Jordan was not legitimately on Reiss’ premises when he observed the stolen computer equipment. Consequently, the plain view exception to the warrant requirement does not apply. Gibson, supra. Indeed, the police probably did not attempt to obtain a search warrant prior to the visit by Officer Jordan because they knew that probable cause for a warrant did not exist. Pa. Const, art. I, § 8 (“no warrant to search any place ... shall issue ... without probable cause”).

Since I would find that a search was, in fact, conducted of Reiss’ apartment by Officer Jordan, and that the plain view exception to the warrant requirement does not apply in this case, it must next be ascertained whether the search was unreasonable and, thus, violative of our state constitution. Article I, Section 8 of the Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or ¿ffirmation subscribed to by the affiant.

Pa. Const, art. I, § 8.

Courts of this Commonwealth have held that the protection furnished by Article I, Section 8 of the Pennsylvania Constitution extends to those areas where one has a “reasonable expectation of privacy,” and that Article I, Section 8 creates an implicit right to privacy in this Commonwealth. Commonwealth v. Blystone, 519 Pa. 450, 463, 549 A.2d 81, 87 (1988). This section of the Pennsylvania Constitution was premised on the belief that great protection must be given to a person’s right to privacy. See generally Schaeffer, supra 370 Pa.Super. at 179, 536 A.2d 354 (discussing our authority to diverge from the United States Supreme Court by recognizing a higher level of protection for individual rights under our state constitution). Moreover, the right to privacy under Article I, Section 8, and hence the right to exclude unreasonable government intrusion, encompasses freedom .from disclosure of personal matters. Schaeffer, supra 370 Pa.Super. 179, 536 A.2d 354.

To determine whether a person’s activities fall within the right to privacy, two questions must be answered: (1) whether that person exhibited an expectation of privacy, and (2) whether that expectation is one that society recognizes as reasonable. Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994) (citing Blystone, 519 Pa. at 463, 549 A.2d at 87); accord Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115 (1993).

The Pennsylvania Supreme Court has held that the right to privacy in one’s home is sacrosanct. Brion, 539 Pa. at 256, 652 A.2d at 287. The Court stated in Brion:

If nowhere else, an individual must feel secure in his ability to hold a private conversation within the four walls of his home. For the right to privacy to mean anything, it must guarantee privacy to an individual in his own home. As then-Justice Roberts stated in Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978): “Upon closing the door of one’s home to the outside world, a person may legitimately expect the highest degree of privacy known to our society.” An individual has a constitutionally protected right to be secure in his home.

Brion, 539 Pa. at 256, 652 A.2d at 289. Clearly, Reiss had a reasonable expectation of privacy in his home, his apartment, as society, as well as the Pennsylvania Supreme Court, has recognized this expectation as reasonable.

It is also evident that Reiss exhibited an expectation of privacy. Reiss permitted Gefert and Officer Jordan to enter and remain in his apartment based upon his observation of Officer Jordan in plain clothes and Gefert’s misrepresentation that Officer Jordan was Gefert’s cousin. Reiss closed his apartment door to the outside world. Unaware of this deception, Reiss trusted these men and, based upon their misrepresentations, permitted these men to invade the privacy of his home. Reiss then led Gefert and Officer Jordan into the remote privacy of his bedroom so that he could discuss Gefert’s “serious concerns” outside the earshot of his roommate who was in another room of the apartment. These facts show that Reiss exhibited an expectation of privacy.

Since Reiss had a reasonable expectation of privacy in his apartment, then his constitutional rights were violated under Article I, Section 8 if the search by Officer Jordan proves to be unreasonable. Given the paramount right of privacy in one’s home, as described by our Supreme Court in Brion as well as this court in Schaeffer, and the deceptive practice utilized by the police in this case, I find Officer Jordan’s search of Reiss’ apartment to be unreasonable and, therefore, violative of this state’s constitutional prohibition against unreasonable searches and seizures.

Let me be the first to recognize that crime in our society today has reached an intolerable level. The problem does not appear to be getting better, only worse. At times it may even seem that the criminal has all the rights, while the helpless victim has none. It is understood that law enforcement needs all the help they can get, especially in today’s, society with the growing numbers of highly advanced, technically trained and ever-evasive criminals. It is, however, critical to properly balance strong, effective result-oriented law enforcement on the one hand, while preserving the constitutionally guaranteed rights of our citizens on the other hand. In the attempt to protect our families and our property we must not erode those fundamentally protected rights which are so important to all of us. The balancing of these competing interests must be carefully executed, for we, the trustees of justice, walk a fine line between strong, effective enforcement of the laws and destroying our citizens constitutional rights. These concerns were stated ever so eloquently by my former colleague Judge Spaeth:

The problem of defining the limits to be set on the use of police deception is one of the most difficult problems of the criminal law. It may well be that certain sorts of criminals cannot be convicted unless the police are permitted to resort to deception. The question is then presented: Is it worth convicting them? For when the police are permitted to resort to deception, there are losses as well as gains. The gains may be considerable — for example, the detection and elimination of a carefully organized traffic in drugs. But the losses may also be considerable. The law of search and seizure is not concerned with protecting the criminal’s right of privacy but the honest citizen’s right. If we are to be able to enjoy liberty and pursue happiness, we must know what part of our world is real and what part is illusion — that our home is our castle, and not a broadcasting center for hidden police transmission devices; that a repairman is a repairman, a business associate a business associate, and not a police agent. Permit the police to make our world illusion, and no one, neither criminal nor honest citizen, will be free. Thus in every case involving police deception the court must balance the gains and losses incident to permitting the deception. Given the difficulty and importance of striking the proper balance, the court should bend every effort to decide each case only on its facts, never going further than it must, and never indulging in broad language that may be misunderstood and so encourage unwholesome practices. I have tried to apply these principles in deciding the present case. Doing so, I have concluded that on its facts, the case presents a use of police deception not at all novel, and within the decided cases. Beyond that, I choose not to go.

Commonwealth v. Morrison, 275 Pa.Super. 454, 471, 418 A.2d 1378, 1386-87 (1980) (Spaeth, J., concurring) (emphasis added). Instantly, I believe the police impermissibly crossed this line in the way that they deceived Reiss into permitting Officer Jordan into his home.

It is true that courts of this Commonwealth have held that consent may be valid despite deception as to an officer’s identity and/or motivation in obtaining a person’s consensual relinquishment of privacy interests. Commonwealth v. Markman, 320 Pa.Super. 304, 313, 467 A.2d 336, 341 (1983) (consent may be deemed voluntary even when procured by a police officer who misrepresents both his identity and purpose in making the search); Ginter, supra (same); Commonwealth v. Schaszberger, 285 Pa.Super. 586, 428 A.2d 200 (1981) (same); Morrison, supra 275 Pa.Super. 454, 418 A.2d 1378 (same). However, it is also true that the courts in these cases arrived at their respective decisions through an interpretation of the Fourth Amendment to the United States Constitution and not by applying Article I, Section 8 to the facts in those cases. Therefore, these cases are distinguishable from the present case since Article I, Section 8 is to be applied to the facts of this case.

Like the Fourth Amendment, Article I, Section 8 of the Pennsylvania Constitution has been interpreted as protecting those areas where one has a reasonable expectation of privacy. Commonwealth v. Kean, 382 Pa.Super. 587, 595, 556 A.2d 374, 378 (1989) (citing Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980)). Nevertheless, it is well settled that the Commonwealth of Pennsylvania, pursuant to Article I, Section 8, has constitutional power to guard individual rights, including the right to be free from unreasonable searches and seizures, more zealously than the federal government does under the United States Constitution. Commonwealth v. Beauford, 327 Pa.Super. 253, 263, 475 A.2d 783, 788 (1984), appeal dismissed, 508 Pa. 319, 496 A.2d 1143 (1985); accord Commonwealth v. Sell, 504 Pa. 46, 63-64, 470 A.2d 457, 466-67 (1983).

In addition, protections of individual privacy against unreasonable searches and seizures under this state’s constitution are more expansive than those afforded under the Fourth Amendment. Commonwealth v. Parker, 422 Pa.Super. 393, 619 A.2d 735 (1993). “[T]he state has the power to impose standards on searches and seizures higher than those required by the Federal Constitution.” DeJohn, 486 Pa. at 43, 403 A.2d at 1288 (quoting Commonwealth v. Harris, 429 Pa. 215, 219 n. 2, 239 A.2d 290, 292 n. 2 (1968)). Thus, the right to privacy, and consequently the right to prevent unreasonable government intrusion, includes freedom from the disclosure of personal matters. Schaeffer, 370 Pa.Super. at 194, 536 A.2d at 361. Significantly, we have stated:

This court, however, is not bound by fourth amendment precedents when construing claims raised under article 1, section 8. The Pennsylvania Constitution provides broader coverage than its federal counterpart, and an expectation of privacy which is deemed unreasonable by federal courts may be recognized as legitimate in this jurisdiction.

Kean, 382 Pa.Super. at 595, 556 A.2d at 378 (citing cases).

In addition, it has also been pointed out that while the substance of these provisions is similar, the protections provided by the two constitutions are not identical. Commonwealth v. Mason, 535 Pa. 560, 569, 637 A.2d 251, 256 (1993); Schaeffer, supra. In Schaeffer, we stated:

[0]ur state constitution offers more protection to the right of privacy than exists in the federal regime, and hence it recognizes a greater right of the individual to exclude unreasonable impositions by government on private communications.

Schaeffer, 370 Pa.Super. at 192, 536 A.2d at 360. The Pennsylvania Supreme Court in Mason expounded upon this notion:

The history of Article I, Section 8, thus indicates that the purpose underlying the exclusionary rule in this Commonwealth is quite distinct from the purpose underlying the exclusionary rule under the 4th Amendment, as articulated by the majority in [United States v.] Leon[, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ].
The United States Supreme Court in Leon made clear that, in its view, the sole purpose for the exclusionary rule under the 4th Amendment was to deter police misconduct ....
sH ❖ * sH & *
This reinterpretation differs from the way the exclusionary rule has evolved in Pennsylvania ... [as] ... a steady line of case-law has evolved under the Pennsylvania Constitution, making clear that Article I, Section 8 is unshakably linked to a right of privacy in this Commonwealth.

Mason, 535 Pa. at 569-70, 637 A.2d at 256 (quoting Commonwealth v. Edmunds, 526 Pa. 374, 394-98, 586 A.2d 887, 897-98, 899 (1991)).

The law of this Commonwealth, therefore, unquestionably permits this court to scrutinize the deceptive police practice utilized in this case more arduously than if we were to examine such practices under the Fourth Amendment. Similarly, I believe we should protect the privacy rights provided by our constitution more zealously than we might under the Fourth Amendment. As a result, I submit that the deception used to enable Officer Jordan to enter Reiss’ apartment crosses over that line from effective law enforcement to dissolution of individual rights. We stated this very proposition in Schaeffer, supra 370 Pa.Super. 179, 536 A.2d 354:

[T]he recent trend of decisions in Pennsylvania shows a marked refusal by our courts to accept the United States Supreme Court’s premise that one gives up all constitutional rights to privacy in certain matters merely by disclosing them to selected other persons.

Schaeffer, 370 Pa.Super. at 197, 536 A.2d at 363. For these reasons, I believe that, this time, the police have gone too far. See Morrison, 275 Pa.Super. at 454, 418 A.2d at 1386 (Judge Spaeth opining that deception by police would be unconstitutional in a case such as the present one where “an undercover agent enters a suspect’s home under the pretense of conducting lawful business, and during the visit, while within the bounds of the suspect’s invitation to enter the home, observes evidence the suspect had reason to believe would not be observed.”) (Spaeth, J. concurring).

The remedy for an illegal search is to exclude all evidence derived from the illegal search. Gibson, 536 Pa. at 131, 638 A.2d at 206-07. Since Officer Jordan’s search of Reiss’ apartment was unreasonable, and, therefore, illegal under Article I, Section 8 of our constitution, then all evidence derived from this illegal search must be excluded. Gibson, supra 536 Pa. at 131, 638 A.2d 206. I do not accept the contention that Reiss’ subsequent consent eradicates the effect of Officer Jordan’s illegal search.

This court has held that if the deceptive practice is collateral to the consent which was given, then the deceptive practice is permissible. Haynes, 395 Pa.Super. at 337, 577 A.2d at 572. If, however, the deception pertains to the consent itself, then the deceptive practice is not acceptable and the police have exceeded the scope of their authority. See id. In this case, Officer Jordan’s unconstitutional search of Reiss’ apartment preceded Reiss’ consent to Officers Sowerby and Wilson by no more than five minutes. Reiss’ consent, therefore, was tainted by Officer Jordan’s illegal search. Surely, Reiss could surmise that, when Officers Sowerby and Wilson came to his apartment immediately after Officer Jordan’s departure, there was probably some connection between Officers Sowerby and Wilson and the plain-clothed Jordan. Reiss could gather from the circumstances that Officers Sowerby and Wilson came to his apartment after speaking with Officer Jordan. Indeed, the short span of time between Officer Jordan’s exit and the other officers’ entrance probably “forced” Reiss into believing that he had no choice but to consent to the search. I believe that the deception pertained to the consent itself and, consequently, all evidence seized, and all statements made by Reiss, were tainted by the unconstitutional deception. Haynes, supra 395 Pa.Super. 322, 577 A.2d 564; Gibson, supra 536 Pa. at 131, 638 A.2d 206.

Accordingly, I would reverse Reiss’ judgment of sentence and remand for a new trial without the use of the seized evidence and Reiss’ statements.

      . Gefert informed the police that he had sold one of the stolen computers to Reiss for $1200.00 and that Reiss had been involved in a number of other burglaries and thefts of computer equipment on his own. The only other information that police had at that point which connected Reiss to these crimes was a rumor provided by Gerald Dyke who did not claim to have any personal knowledge as to the rumor he communicated to police.

      . Since Reiss has alleged a violation of his constitutional rights under the Pennsylvania Constitution, and not under the Federal Constitution, our analysis of Reiss’ constitutional claim is, therefore, confined to Pennsylvania law. See Commonwealth v. Friedman, 411 Pa.Super. 628, 636 n. 4, 602 A.2d 371, 375 n. 4 (1992).

      . It is important to note that Reiss invited these men into his apartment for non-criminal reasons. This is significant because some courts which have held deceptive practices to be permissible have done so where the undercover agent posed as a willing participant in the unlawful transaction. See Commonwealth v. Ginter, 289 Pa.Super. 9, 432 A.2d 1024 (1981)

      . The Fourth Amendment to the United States Constitution provides:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

        U.S. Const, amend. IV. The fact that this court has not had occasion under our state constitution to assess the limits on the use of police deception was specifically noted in Morrison, supra. Morrison, 275 Pa.Super. at 470 n. 5, 418 A.2d at 1386 n. 5 (Spaeth, J., concurring).

      . One cannot help but question whether police deception is proper in a case such as this since this court has held that, where police use deception to execute a valid search warrant in order to gain access to a person’s home, such deception is permissible to initiate execution of a search warrant only where it is followed by an announcement of authority and purpose and by peaceful entry. Commonwealth v. Ceriani, 411 Pa.Super. 96, 105, 600 A.2d 1282, 1286 (1991), appeal denied, 532 Pa. 641, 614 A.2d 1138 (1992) (holding police violated "knock and announce” rule when executing warrant when officers staged automobile accident in front of residence, knocked on front door and ran past child who answered the door while simultaneously announcing their identity and purpose); see also Commonwealth v. Kitchener, 351 Pa.Super. 613, 506 A.2d 941 (1986) (holding that, absent exigent circumstances, a police officer executing a warrant must give notice of identity and announce his purpose prior to entering a private residence); Commonwealth v. Riccardi, 220 Pa.Super. 72, 283 A.2d 719 (1971) (finding that suspect's rights were violated where police did not give notice of their identity and announce that they were in possession of a warrant but gained entrance to suspect’s apartment as a result of a ruse sending maintenance man to door).
      It seems strange that a person would have fewer rights, and less protection against police deception, where the police did not have a warrant, as opposed to when the police did have a warrant and a detached magistrate had already authorized the police's admission into the person's home.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    655 A.2d 176
    George E. MYERS, II, Appellant, v. ESTATE of Robert WILKS, Sr.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1995.
    Filed March 2, 1995.

      George E. Myers, II, pro se.
    James D. Wolfe, Johnstown, for appellee.
    Before OLSZEWSKI, JOHNSON and BROSKY, JJ.
   BROSKY, Judge.

This is a pro se appeal from the order of the trial court which sustained preliminary objections filed by counsel for Robert Wilks and dismissed the complaint. Appellant presents the following issues for review: (1) whether the lower court erred in sustaining the preliminary objections; (2) whether the trial court erred in concluding that an estate had never been opened on behalf of the decedent, Robert Wilks, Sr.; and (3) whether a binding contract existed between appellant and the decedent. For the reasons set forth below, we affirm the order of the trial court.

Before considering these claims, it is necessary to recount the pertinent facts giving rise to this appeal. Appellant, George Myers, II, became acquainted with the decedent, Robert Wilks, Sr. through their mutual involvement in the local chapter of the Rotary Club. In 1992, Mr. Wilks’ health began to decline resulting in his inability to perform household chores or drive his vehicle. Consequently, Mr. Wilks purportedly engaged appellant to perform these tasks in exchange for which appellant was to receive payment at a later time when Mr. Wilks, Sr. was no longer in debt. In reliance upon Mr. Wilks, Sr.’s promise of payment, appellant worked for Mr. Wilks, Sr. from April 20, 1992 until May 20, 1993, the date of Mr. Wilks, Sr.’s death. Appellant knew of the death, as it was he who discovered Mr. Wilks, Sr.’s body.

Appellant wrote to Robert Wilks, Jr. in October of 1993 requesting payment for the services which he had previously rendered to the decedent. When payment was not forthcoming, appellant instituted suit against the Estate of Robert Wilks, Sr. by filing a complaint with the district justice. On February 10, 1994, the district justice entered judgment in favor of the estate and against appellant. Appellant thereafter perfected a timely appeal to the court of common pleas, and filed a complaint therein in which he reiterated his claim for unrecompensed wages and the value of the pigs. Appellant also continued to identify the defendant as the “Estate of Robert Wilks, Sr.” Counsel filed preliminary objections on behalf of Robert Wilks. The objections sought dismissal of the complaint based upon, inter alia, the fact that no estate had been opened and no personal representative appointed therefor. The trial court sustained the objections on this basis and dismissed the complaint. Appellant then instituted this timely appeal from the order of the trial court.

Appellant first contends that the trial court erred in granting the preliminary objections and dismissing the complaint. In support of this claim, appellant asserts that his pleading was sufficiently specific to set forth a cause of action and to enable Mr. Wilks, Jr. to form an answer thereto. Appellant’s Brief at 6. Moreover, appellant contends that his pleadings should have been subjected to a less stringent standard due to his pro se status. Id. While the courts are indeed willing to liberally construe materials filed by a pro se litigant, appellant is not entitled to any particular advantage because he lacks legal training. O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 434, 567 A.2d 680, 682 (1989). Rather, “any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.” Vann v. Commonwealth, Unemployment Compensation Board of Review, 508 Pa. 139,148, 494 A.2d 1081,1Ó86 (1985). Such is the case here, as appellant has misconstrued the basis for the trial court’s disposition as well as the manner of pursuing his claim against the decedent.

Contrary to appellant’s interpretation, the trial court did not dismiss the complaint because of any purported pleading deficiencies or the failure to set forth a cause of action. Instead, the trial court granted the objections based on the fact that the estate of the decedent was not a proper party-defendant and no, proper defendant appears to exist. The trial court’s ruling was undeniably correct.

Our Supreme Court has explained that the death of an individual renders suit against him or her impossible where an action is not commenced prior to death. Ehrhardt v. Costello, 437 Pa. 556, 561, 264 A.2d 620, 623 (1970). However, the death of a person does not prevent recovery by a party aggrieved by conduct which occurred during the decedent’s lifetime. Id. The law of this Commonwealth instead provides that all causes of action or proceedings, real or personal, shall survive the death of the plaintiff or the defendant. 42 Pa. C.S.A: § 8302. See also 20 Pa.C.S.A. § 3371 (providing that all causes of action or proceedings shall survive as provided by 42 Pa.C.S.A. § 8302). An action or proceeding to enforce any right or liability which survives a decedent may be brought by or against his personal representative. 20 Pa.C.S.A. § 3373; Ehrhardt v. Costello, supra; Van Mastrigt v. Delta Tau Delta, 393 Pa.Super. 142, 150, 573 A.2d 1128, 1131-1132 (1990).

In view of the above authorities, it is clear that appellant has sued the wrong defendant. Instead of the “Estate of Robert Wilks, Sr.,” appellant should have named as the defendant the personal representative of the Estate of Robert Wilks, Sr., in his capacity as the executor or administrator of the estate. 20 Pa.C.S.A. § 3373; Ehrhardt v. Costello, supra; Van Mastrigt v. Delta Tau Delta, supra. A problem arises in this case, however, as appellee’s counsel has indicated that an estate was never raised and no personal representative was ever appointed. Assuming these facts to be true, appellant’s remedy is to secure the appointment of a personal representative by applying to the register of wills for the issuance of letters testamentary or letters of administration to a qualified individual, such as the person designated as the executor in the decedent’s will or the decedent’s children, Robert Wilks, Jr. or Benjamin Wilks. See, e.g., Finn v. Dugan, 260 Pa.Super. 367, 371, 394 A.2d 595, 597 (1978) (providing that where one has a claim against the estate, it is incumbent upon him, if no administrator has been appointed, to procure the appointment of an administrator against whom he can proceed). See also 20 Pa.C.S.A. § 3155 (describing those individuals to whom the register shall grant letters testamentary or letters of administration) and § 3156 (enumerating the requisite qualifications of a personal representative). Once a personal representative has been appointed or, if a personal representative now otherwise exists, appellant has two options: (1) he can proceed to prove his claim by means of instituting suit in the civil division of the Court of Common Pleas and ask the Orphans’ Court to make provision for the distribution or satisfaction of his claim in accordance with 20 Pa.C.S.A. § 3389; or (2) he can proceed to prove his claim at the audit of the estate in the Orphans’ Court division pursuant to 20 Pa.C.S.A. § 3386. See In re: Estate of Schmidt, 408 Pa.Super. 353, 362, 596 A.2d 1124, 1129 (1991), affirmed, 533 Pa. 86, 619 A.2d 1058 (1993).

Appellant next argues that the trial court erred in concluding that an estate had never been opened on behalf of the decedent, Robert Wilks, Sr. For support, appellant suggests that the filing of an Inheritance Tax Return by Mr. Wilks, Jr. was sufficient to constitute the opening of an estate for the decedent. Appellant also asserts that an estate was opened by virtue of the fact that Mr. Wilks, Jr. has allegedly disposed of estate assets and paid estate debts. Appellant is in error.

All transfers of property by will, by the intestacy laws of this Commonwealth, or as otherwise defined in the inheritance tax law are subject to an inheritance tax. See 72 P.S. § 9102 (defining a transfer as the passage of ownership of property, or interest from property or income from property); 72 P.S. § 9106 (inheritance tax is imposed upon every transfer subject to tax under this article) and 72 P.S. § 9107 (transfers enumerated within this section are subject to the tax imposed by section 9106). It is not necessary for a personal representative to be appointed for the purpose of filing an inheritance tax return, as such a return may be made by the transferee of the decedent’s property. See 72 P.S. § 9136(a). From these provisions, it is evident that inheritance tax must be paid and a return filed regardless of the existence of a decedent’s estate in the Orphans’ Court. We therefore conclude that the filing of an inheritance tax return, standing alone, cannot be construed as evidence that an estate was opened or otherwise exists for the purposes of allowing suit to be brought.

We similarly reject appellant’s claim that an estate exists because of the disposition of assets and payment of debts by Mr. Wilks, Jr. The PEF Code does not explicitly define what constitutes an estate. Nor does the code otherwise delineate the conditions which must exist for an estate to be opened. It may nonetheless be inferred from a review of the PEF Code that an estate generally is raised or comes into existence upon the appointment of a personal representative, since it is from this act that the law imposes upon the personal representative the duties to advertise his appointment, administer and distribute the decedent’s assets, and pay any liabilities of the decedent. See, e.g., 20 Pa.C.S.A. § 3161 (requiring personal representative to advertise the grant of letters immediately after they have been granted); 20 Pa.C.S.A. § 3301(a) (directing personal representative to file an inventory of the decedent’s assets within three months after his/her appointment); 20 Pa.C.S.A. § 3501.1 and Pa.O.C.R., Rule 6.4, 20 Pa.C.S.A. (governing the filing of an account by the personal representative). However, nothing in the PEF Code expressly requires the appointment of a personal representative or the submission of a will for probate. In fact, the PEF Code explicitly authorizes the disposition of a decedent’s assets and payment of liabilities without the appointment of a personal representative, submission of a will for probate or the formal administration of an estate under certain circumstances. See, e.g., 20 Pa.C.S.A. § 3102 (providing for the settlement of small estates upon petition of any party in interest where the gross value of the estate, exclusive of real estate and property payable under section 3101, does not exceed $10,000 regardless of whether letters have been issued or a will probated).

In this case, it does not appear from the record that a personal representative was appointed or that a will was submitted for probate. Although appellant claims that estate assets have been sold and .that some of the debts have been paid, there is no indication that an estate has been or is in the process of being administered in the manner prescribed by the PEF Code. Nor is there any evidence that the decedent’s assets have been disposed of by means of the procedure set forth in section 3102, supra. Since none of the pertinent indicia of an estate exist, and because the mere filing of an inheritance tax return is insufficient to otherwise establish the existence of an estate, the trial court did not err in concluding that an estate was not opened for the decedent.

In his final allegation of error, appellant contends that the trial court erred in dismissing the complaint because a binding contract existed between appellant and the decedent. The question of whether a valid and enforceable contract exists cannot properly be resolved at the preliminary objection stage or in this appeal because no evidence has been presented on this subject. Rather, the only matters to be addressed via preliminary objections are those which are enumerated in Pa.R.C.P., Rule 1028(a)(l)-(a)(6), 42 Pa.C.S.A. As we previously indicated, appellant’s complaint was not dismissed because he failed to adequately plead the existence of a valid cause of action; it was instead dismissed on the ground that he sued the wrong party. Because appellant is not entitled to the grant of any relief, we affirm the order of the trial court.

Order affirmed.

      . According to a copy of an Inheritance Tax Return appended to appellant's brief, the decedent died testate and was survived by at least two of his children, Robert Wilks, Jr. and Benjamin Wilks. It appears that Robert Wilks, Jr. is acting in either a fiduciary capacity or as a transferee of the decedent's assets, as he filed the Inheritance Tax Return and identified himself as the party to whom all tax correspondence should be addressed. The tax return further indicates that Mr. Wilks, Jr. has apparently acknowledged, at least to the Pennsylvania Department of Revenue, that the decedent was indebted to appellant in the amount of $1,586.00. However, the record does not reveal whether this debt is related to the claim giving rise to this appeal.

      . The complaint sought recovery for appellant’s wages in the sum of $7,242.00. Appellant also requested an award of $300.00 for the value of the decedent’s pigs. According to appellant’s letter sent to Mr. Wilks, Jr., the decedent’s pigs were allegedly to be given to appellant upon the decedent’s death but the pigs were sold by the decedent’s sons. Appellant thus sought a total of $7,542.00 in damages.

      . It is unclear from the record whether counsel acted on behalf of the decedent, his son, the entity identified as the “Estate of Robert Wilks, Sr.” or all of the above, because the preliminary objections simply refer to “Robert Wilks.” We note that the same counsel also represents appellee, the Estate of Robert Wilks, Sr., in this appeal.

      . The Probate, Estates and Fiduciaries (PEF) Code defines a personal representative as the executor or administrator of an estate. 20 Pa. C.S.A. § 102.

      . Appellant does not specifically argue that Mr. Wilks, Jr.'s filing of the inheritance tax return was sufficient to cause him to be treated as an executor de son tort for purposes of suit. However, such a claim would be without merit. As we previously indicated, the filing of an inheritance tax return is not a duty which is exclusively limited to the personal representative, as the inheritance tax law permits a return to be filed by a transferee. 72 P.S. § 9136. Moreover, this court has held that conduct of this type is not the type of act which will make an individual an executor de son tort. Lovejoy v. Georgeff, 224 Pa.Super. 206, 213-214, 303 A.2d 501, 504-505 (1973).

      . Again, appellant does not argue that Mr. Wilks, Jr. has become an executor de son tort because of this conduct. Even were we to assume, arguendo, that such conduct was sufficient it would not warrant the grant of relief here since appellant has not attempted to sue Mr. Wilks, Jr. in this capacity.

      . The decedent’s estate, for tax purposes, includes all real property, tangible personal property and intangible personal property owned by the decedent. 72 P.S. § 9102. For the purposes of the PEF Code a broader definition is required, since an estate necessarily encompasses the administration and distribution of the decedent’s assets and the payment of any liabilities or debts in the manner prescribed by law, i.e., the PEF Code and the Orphans' Court rules promulgated by our Supreme Court and the courts of common pleas.

      . Contrary to appellant's belief, an estate is not probated; rather, it is a will which is submitted for probate. See 20 Pa.C.S.A. § 3131 (providing that a will of a resident decedent shall be probated by submitting it to the register of wills of the county where the decedent had his last family or principal residence).

      . According to the inheritance tax return, the decedent's assets in this case, excluding his real estate, totaled $8,342.02. The decedent's assets thus appear to fall within the class of estates which are eligible for settlement upon petition. The record does not disclose whether the decedent's estate was in fact distributed pursuant to section 3102. If the decedent's estate was settled in this manner and a final decree of distribution has been entered, then appellant must petition the Orphans’ Court to revoke the decree so that his claim can be proved or preserved in the Orphans’ Court. 20 Pa.C.S.A. § 3102.


author: POPOVICH, Judge:

text:
    655 A.2d 180
    Ronald D. WEAVER, Appellant v. E. Franklin MARTIN and Kenneth E. Hankins, Jr., Appellees.
    Superior Court of Pennsylvania.
    Submitted Jan. 9, 1995.
    Decided Feb. 24, 1995.

      Ronald D. Weaver, pro se.
    Patrick C. Carey, Scranton, for E. Franklin Martin.
    Kenneth F. Lee, Chambersburg, for Kenneth E. Hankins.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Franklin County dismissing appellant’s legal malpractice action on both procedural and substantive grounds.

Herein, appellant presents the following questions for review:

1. Does the 41st Judicial District have the jurisdiction to make a decision concerning legal matters that are in the conclusive jurisdiction of the 39th Judicial District?
2. Did the lower court err in dismissing appellant’s complaint because of improper service of process?
3. Did the lower court err in sustaining appellee’s demurrer to appellant’s legal malpractice claim?
4. Did the lower court err in addressing the untimely filed preliminary objections of appellees?

After careful review, we reverse the order dismissing appellant’s complaint and remand for proceedings consistent with this opinion.

Examination of the record reveals the following: This matter involves a legal malpractice complaint filed by appellant against the attorneys from his criminal trial. Appellee Martin was appellant’s pretrial counsel and appellee Hankins was appellant’s trial counsel. Appellant was convicted of rape and involuntary deviate sexual intercourse because of incidents involving the fifteen year old daughter of his live-in girlfriend. Appellant’s complaint, in this action, alleged that both attorneys failed to file notice of an alibi defense in a timely fashion, failed to file proper pre-trial motions or object to jury instructions, and in general provided him with inadequate counsel. There were also several procedural mishaps on both sides throughout this case.

Appellant filed his complaint on September 11, 1986, and erroneously served it on appellees via certified mail. Appellee Martin entered an appearance in the action on October 7, 1986. Judge Quigley of the 41st Judicial District was assigned specially to preside over the case because all the judges in the 39th Judicial District recused themselves from the case.

After appellant received no response from either appellee, he filed a notice of default on both appellees on October 10, 1986. On the same day, appellee Martin filed preliminary objections which included a demurrer, a motion to strike, and the pendency of a prior action. Appellee Martin’s demurrer was based upon the fact that appellant’s underlying criminal action had not been fully litigated and was not justiciable. Appellee Martin’s preliminary objections did not contest the improper service of process and also neglected to provide a proper verification statement with his preliminary objections.

Appellee Hankins replied with his preliminary objections on October 15, 1986. These preliminary objections included objection to appellant’s improper service of process, pendency of a prior action, a motion to strike, a demurrer and a motion for more specific complaint. Both appellees filed their preliminary objections after expiration of the twenty day period called for by the Pennsylvania Rules of Civil Procedure.

Appellant subsequently filed preliminary objections to the preliminary objections of appellees. No action was taken on the case from November 7,1986, until August 11,1987, when a notice of impending dismissal was filed by the Prothonotary of Franklin County.

On November 23, 1987, Weaver filed a praecipe for service of a second complaint on both appellees because there was no return of service on the docket for the original complaint. The lower court found that appellant had not properly requested the prothonotary to reinstate the original complaint. Thus, it was treated as an amended complaint that was filed more than ten days after appellees filed their preliminary objections. The trial court struck the amended complaint for this reason.

On May 25, 1988, Appellee Martin filed preliminary objections to appellant’s second complaint in addition to a brief in support of both sets of his preliminary objections. Appellant later filed preliminary objections to Appellee Martin’s preliminary objections to the second complaint, as well as a reply brief to the brief submitted by appellee Hankins in support of both sets of his preliminary objections.

The trial court dismissed appellant’s complaint against appellee Hankins because of improper service of process without granting appellant leave to effectuate service properly. The court sustained appellee Martin’s demurrer to appellant’s complaint on the ground that appellant did not state a cause of action for legal malpractice and also that the appellant’s claim was not justiciable. The court also held that the complaint could be dismissed as to both appellees because of the pendency of a prior action. This timely appeal followed.

Before addressing appellant’s claims that require remand, we will address several of appellant’s allegations of error in the interest of judicial economy.

Appellant’s first allegation of error is that the 41st Judicial District did not have jurisdiction to render a decision in his case. We disagree.

42 Pa.C.S.A. § 4121(a) provides that “... any judge may be temporarily assigned to another court and may there hear and determine any matter with like effect as if duly commissioned to sit in such other court.” 42 Pa.C.S.A. § 4121(a). The Rules of Judicial Administration provide: “... [T]he Chief Justice may ... effectuate the assignment of any ... active judge to temporary judicial service on any court to fulfill a request by the president judge thereof or when, by reason of case inventories or in the interest of justice, additional judicial assistance is required by any court.” Pa.R.J.A. No. 701(e).

Here, Judge Quigley properly disposed of appellant’s case because all other judges in the 39th Judicial District recused themselves. These rules clearly give Judge Quigley the power to hear and decide appellant’s case. There is no language in these rules that would indicate, as appellant claims, that a specially presiding judge cannot remove the case file to his own judicial district. Therefore, appellant’s contention that Judge Quigley did not have jurisdiction over his case is without merit.

Appellant’s next allegation of error is that the lower court erred in considering appellees’ untimely filed preliminary objections. We disagree.

Pa.R.C.P. 1026(a) provides: “... every pleading subsequent to the complaint shall be filed within twenty days after the service of the preceding pleading ...” Pa.R.C.P. No. 1026(a), 42 Pa.C.S.A. This twenty day filing period has been interpreted liberally and is permissive rather than mandatory. Francisco v. Ford Motor Co., 397 Pa.Super. 430, 580 A.2d 374 (1990). The decision of whether an extension of time shall be granted is within the discretion of the trial court. Id. at 376, 580 A.2d 374. A late pleading may be filed if the opposing party is not prejudiced and justice requires. Id. citing Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971). Prejudice results when an opposing party’s delay causes a party “ ‘any substantial diminution [in their] ability to present factual information in the event of trial ... ’” Id. at 377 n. 6, 580 A.2d 374, quoting American Bank & Trust Co. of Pennsylvania v. Ritter, Todd & Haayen, 274 Pa.Super. 285, 287, 418 A.2d 408, 409 (1980).

Instantly, both appellees filed their preliminary objections approximately two weeks late, and the lower court considered both appellees’ preliminary objections. Appellant does not state any facts indicating how this delay prejudiced him. He merely states that he was prejudiced by the untimely filing.' Accordingly, the lower court did not err by allowing these preliminary objections to be filed. See, Ambrose v. Cross Creek Condominiums, 412 Pa.Super. 1, 602 A.2d 864 (1992) (holding that plaintiff suffered no prejudice where preliminary objections were filed approximately two weeks late and plaintiff had no factual allegations of prejudice resulting from the late filing).

We now reach the issues that require remand for further proceedings. First, appellant contends that the lower court erred in dismissing the complaint when he improperly served both appellees. We agree as to appellee Hankins.

Pa.R.C.P. No. 402(a) provides that a defendant may be served with original service by handing him a copy or by handing a copy to a qualified member at the defendant’s residence or place of business. Pa.R.C.P. No. 402(a), 42 Pa.C.S.A. Original process shall be served by the sheriff except in other limited situations. Pa.R.C.P. No. 400(a), 42 Pa.C.S.A. “Where service of process is defective, the proper remedy is to set aside the service. In that event, the action remains open, but it cannot proceed against a defendant unless the plaintiff can thereafter effect service on such defendant which is sufficient to vest jurisdiction in the court.” Collins v. Park, 423 Pa.Super. 601, 621 A.2d 996 (1993), allocatur denied, 536 Pa. 618, 637 A.2d 278 (1993), citing Frycklund v. Way, 410 Pa.Super. 347, 599 A.2d 1332 (1991).

In the case at bar, appellant served both appellees by certified mail. Appellee Hankins filed preliminary objections claiming the court lacked jurisdiction over him because of this defective service of process. The above stated rules do not allow for service of process by certified mail, and the record makes it clear that service of process was not made by the sheriff. Service of process by mail is allowed in limited situations pursuant to Pa.R.C.P. No. 403, and appellant’s action did not fall within one of these actions allowing for service by mail. See, Sharp v. Valley Forge Medical Center, 422 Pa. 124, 221 A.2d 185 (1966) (holding that procedural rules governing service of process must be strictly followed). However, the trial court erred in dismissing appellant’s action for improper service of process. The proper remedy would have been for the trial court to allow appellant to attempt to effect proper service of process which would vest jurisdiction in the lower court. Therefore, appellant’s action can proceed only if the lower court has jurisdiction. Collins, supra. Service of the complaint is stricken and the case is remanded for further proceedings consistent with this opinion.

However, appellee Martin presents a different situation because he entered an appearance prior to filing preliminary objections and never objected to the invalid service of process. Accordingly, he became a party to the suit. See, Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 255 A.2d 577 (1969) (holding that a person may become a party to an action by voluntarily entering an appearance when there has been improper service of process).

The second ground for remand is appellant’s allegation that the lower court erred in sustaining appellee Martin’s demurrer to appellant’s legal malpractice complaint. We agree and remand to allow appellant to amend his complaint as to appellee Martin.

Our supreme court recently addressed the issue of a legal malpractice claim against a criminal defense attorney in Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993):

Consequently, today we hold that a plaintiff seeking to bring a trespass action against a criminal defense attorney, resulting from his or representation of the plaintiff in criminal proceedings, must establish the following elements:
(1) The employment of the attorney;
(2) Reckless or wanton disregard of the defendant’s interest on the part of the attorney;
(3) the attorney’s culpable conduct was the proximate cause of an injury suffered by the defendant/plaintiff, i.e., “but for” the attorney’s conduct, the defendant/plaintiff would have obtained an acquittal or a complete dismissal of the charges.
(4) As a result of the injury, the criminal defendant/plaintiff suffered damages.
(5) Moreover, a plaintiff will not prevail in an action in criminal malpractice unless and until he has pursued post-trial remedies and obtained relief which was dependent on attorney error; additionally, although such a finding may be introduced into evidence in the subsequent action it shall not be dispositive of the establishment of culpable conduct in the malpractice action.

Id. at 251, 621 A.2d at 114-15. The holding in Bailey was given retroactive effect in Hill v. Thome, 430 Pa.Super. 551, 635 A.2d 186 (1993).

Here, the record is insufficient to allow us to make a determination of whether appellant met the requirements of Bailey as his complaint was filed prior to the decision in Bailey. The case must be remanded and appellant shall be allowed to amend his complaint to comply with the standard elaborated in Bailey regarding his claim against appellee Martin. See, Hill supra (holding that Bailey should be given retroactive effect and remanding to allow the legal malpractice plaintiff to amend his complaint to comply with the new standard in Bailey).

The order dismissing appellant’s legal malpractice complaint is reversed, and this case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Appellant raises several other allegations of error, but we need not address these issues because we are remanding the case on other grounds. Appellant, also contends: 1) the lower court erred in its conclusion that the complaint was not reinstated in accord with the Pennsylvania Rules of Civil Procedure and in its conclusion that the reinstated complaint was an amended complaint; 2) the lower court erred in its conclusion that the civil action was not justiciable as it pertains to appellee Martin; 3) the lower court improperly considered appellee Martin’s preliminary objections because they did not contain a required verification; 4) the lower court improperly considered appellee Hankins’ preliminary objections because they did not contain a valid signature; 5) the lower court improperly denied appellant his constitutional right to have his grievances heard in a court of law pursuant to the Due Process and Equal Protection Clauses; 6) the lower court erred in not compelling appellees to comply with discovery rules and after discovery erred by failing to allow appellant an opportunity to amend his complaint.

      . The issue of pendency of a prior action apparently referred to a civil suit appellant filed in the United States District Court for the Middle District of Pennsylvania that asserted the same claims as appellant’s suit in the Court of Common Pleas.

      . This second complaint was identical to appellant’s original complaint.