author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    459 A.2d 1255
    Bruce PRAISNER, an individual, Appellant, v. Olive S. STOCKER, an individual, and Mike Fastuca, an individual.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1983.
    Filed April 22, 1983.
    Petition for Allowance of Appeal Denied Sept. 9, 1983.
    Cavanaugh, J., concurred and filed statement in which Popovich and Hoffman, JJ., joined.

      Mark W. Morava, Philadelphia, for appellant.
    Howland W. Abramson, Philadelphia, for appellees.
    Before CERCONE, P.J., and CAVANAUGH, WIEAND, CIRILLO, POPOVICH, MONTGOMERY and HOFFMAN, JJ.
   WIEAND, Judge:

Does the rule of immunity from liability for judicial acts extend to district justices? This is the principal issue raised by the appeal in the instant case. Before reaching that issue, however, we must first determine whether this Court has jurisdiction to hear the appeal. Our jurisdiction depends upon the appealability of an order entering summary judgments on two counts of a three count complaint where the three counts contained separate causes of action joined in the same complaint pursuant to Pa.R.C.P. 1044(a).

After a criminal complaint charging Bruce Praisner with issuing bad checks had been dismissed, Praisner filed a complaint in trespass against the district justice, Olive S. Stocker, alleging, in three counts, causes of action for false arrest, malicious abuse of process and assault and battery. After the pleadings were closed, Stocker filed a motion for judgment on the pleadings on the grounds that a district justice is immune from liability for acts performed in his or her capacity as a judicial officer. The trial court, following argument, entered summary judgments in favor of Stocker on the counts alleging causes of action for false arrest and malicious abuse of process. From this order, Praisner appealed. The remaining count alleging a cause of action for assault and battery was ordered down for compulsory arbitration and resulted in an award in favor of Praisner for Ten ($10) Dollars. No appeal was filed from that award, and the time therefor has now expired.

It is well settled that an appeal will lie only from a final order unless otherwise permitted by statute. A final order is usually one which ends the litigation or, alternatively, disposes of the entire case. Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544 (1978); Bracken v. Bracken, 294 Pa.Super. 371, 373, 439 A.2d 1247, 1247-1248 (1982); Mitchell v. Center City Cadillac, 287 Pa.Super. 350, 353, 430 A.2d 321, 322 (1981); Hall v. Lee, 285 Pa.Super. 542, 544, 428 A.2d 178, 179 (1981); Malenfant v. Ruland, 274 Pa.Super. 506, 509, 418 A.2d 521, 522 (1980). “Conversely, an order is interlocutory and not final unless it effectively puts the litigant ‘out of court’.” Giannini v. Foy, 279 Pa.Super. 553, 556, 421 A.2d 338, 339 (1980), citing Allessandro v. State Farm Mutual Auto. Ins. Co., 487 Pa. 274, 409 A.2d 347 (1979). Accord: Safety Tire Corp. v. Hoffman Tire Company, Inc., 458 Pa. 102, 103, 329 A.2d 834, 835 (1974); James Banda, Inc. v. Virginia Manor Apartments, Inc., 451 Pa. 408, 410, 303 A.2d 925, 926 (1973); Stadler v. Mt. Oliver Borough, 373 Pa. 316, 318, 95 A.2d 776, 776 (1953); Jackson v. Moultrie, 288 Pa.Super. 252, 255, 431 A.2d 1033, 1034-1035 (1981); Schaefer v. American States Insurance Co., 272 Pa.Super. 67, 69, 414 A.2d 672, 673 (1979).

“In ascertaining what is a final appealable order ... we must look beyond the technical effect of the adjudication to its practical ramifications.” Jackson v. Moultrie, supra 288 Pa.Super. at 255, 431 A.2d at 1034-1035. Accord: Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 482 Pa. 615, 618, 394 A.2d 491, 493 (1978); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977); Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975); Husted v. Board of Directors of Wellsboro Area School District, 57 Pa. Cmwlth. 520, 524, 427 A.2d 272, 274 (1981); Giannini v. Foy, supra 279 Pa.Super. at 556, 421 A.2d at 339; Schaefer v. American States Insurance Co., supra 272 Pa.Super. at 70, 414 A.2d at 673. “The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.” Pugar v. Greco, supra 483 Pa. at 73, 394 A.2d at 545, quoting Bell v. Beneficial Consumer Discount Co., supra 465 Pa. at 228, 348 A.2d at 735. Accord: Pennsylvania Turnpike Commission v. Atlantic Richfield Co., supra 482 Pa. at 618, 394 A.2d at 493; West v. West, 301 Pa.Super. 75, 76, 446 A.2d 1342, 1342 (1982); Gordon v. Gordon, 293 Pa.Super. 491, 498, 439 A.2d 683, 686 (1981).

As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable. Gordon v. Gordon, supra, 293 Pa.Superior at 499, 439 A.2d at 686-687 (1981); Stengena v. Madden, 291 Pa.Super. 364, 366, 435 A.2d 1269, 1270 (1981); Mitchell v. Center City Cadillac, supra 287 Pa.Super. at 353, 430 A.2d at 322; Bagshaw v. Vickers, 286 Pa.Super. 246, 249, 428 A.2d 664, 666 (1981); Giannini v. Foy, supra 279 Pa.Super. at 556, 421 A.2d at 339. An examination of the cases so holding discloses that the basis upon which this general rule is founded is that in most instances when one count of a multi-count complaint has been dismissed, the plaintiff is not out of court and is not precluded from presenting the merits of his cause of action. In these cases the courts have adhered to a policy which seeks to avoid piecemeal litigation. Following the general rule, this Court has also held that an appeal will not lie from an order granting partial summary judgment. See: Swift v. Milner, 296 Pa.Super. 463, 467, 442 A.2d 1144, 1146 (1982); Rohr v. Keystone Insurance Co., 294 Pa.Super. 179, 182, 439 A.2d 809, 811 (1982); Ruminant Nitrogen Products Co. v. J & M Machinery Co., Inc., 294 Pa.Super. 144, 439 A.2d 791 (1982); Inselberg v. Employers Mutual Companies, 291 Pa.Super. 406, 435 A.2d 1290 (1981); Schaefer v. American States Insurance Co., supra.

However, the general rule is not without exceptions. Certain orders which have not put a litigant literally “out of court” or completely terminated the litigation have nevertheless been held to possess sufficient aspects of finality to be appealable immediately because the effect of the order has been to preclude the litigant from asserting the cause of action alleged. Hudock v. Donegal Mutual Insurance Co., 438 Pa. 272, 276, 264 A.2d 668, 671 (1970). Thus, the following have been held appealable: (1) an order denying class status (Klemow v. Time Incorporated, 466 Pa. 189, 194 n. 5, 352 A.2d 12, 14 n. 5 (Í976), cert. denied, 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 (1976); Bell v. Beneficial Consumer Discount Co., supra; Lee v. Child Care Service Delaware County Institution District, 461 Pa. 641, 645 n. 1, 337 A.2d 586, 588 n. 1 (1975)); (2) an order dismissing a third party complaint (Brandywine Area Joint School Authority v. VanCor, Inc., 426 Pa. 448, 451, 233 A.2d 240, 241 (1967); Arnold v. Borbonus, 257 Pa.Super. 110, 390 A.2d 271 (1978); Harker v. Farmers Trust Company, 248 Pa.Super. 427, 375 A.2d 171 (1977)); (3) an order dismissing new matter in defendant’s answer (Posternack v. American Casualty Company of Reading, 421 Pa. 21, 23-24, 218 A.2d 350, 351 (1966); Pellegrine v. Home Insurance Company, 200 Pa.Super. 48, 51-52, 186 A.2d 662, 663 (1962); Higgs v. New York Fire Insurance Company, 176 Pa.Super. 310, 311, 106 A.2d 860, 861 (1954)); and (4) an order dismissing a defendant’s counterclaim (Broido v. Kinneman, 375 Pa. 568, 569-570, 101 A.2d 647, 648 (1954); Riling v. Idell, 291 Pa. 472, 476, 140 A. 270, 272 (1928); Olivieri v. Olivieri, 242 Pa.Super. 457, 462 n. 3, 364 A.2d 361, 363 n. 3 (1976)).

In the case sub judice, appellant joined three separate causes of action in one complaint. This he was permitted to do by Pa.R.C.P. 1044(a), which permits, but does not require, the joinder of causes of action in trespass which arise out of the same transaction or occurrence or series of transactions or occurrences. The trial court’s entry of summary judgments against appellant on the counts alleging false arrest and malicious abuse of process effectively precluded him from pursuing further the merits of these separate and distinct causes of action. As such, the judgments entered against him were final, not interlocutory. Pennsylvania Turnpike Commission v. Atlantic Richfield Co., supra. The finality of the judgments entered against him on these causes of action was not impaired by the fact that there remained undetermined a separate action for assault and battery.

The appealability of the summary judgments entered in this case becomes readily apparent if we understand the basis upon which separate causes of action may be joined in the same complaint. Pa.R.C.P. 1044(a) permits, but does not require, the joinder of causes of action which arise out of the same transaction or occurrence or series of transactions or occurrences. If appellant had not joined his three causes of action in one complaint but had used three separate complaints, as he might have done, there could be no doubt about the appealability of judgments entered against him on two of the three causes of action. Should appealability be determined by the form of the pleading or pleadings by which a litigant chooses to state his three, separate causes of action? We think not!

The practical ramifications of the order entered by the trial court also demonstrate the finality of that order. Indeed, in this case the finality of the court’s order stands forth in clarity which only the occurrence of subsequent events can produce. The trial court recognized that the summary judgments entered on two counts involved causes of action separate and distinct from the count averring assault and battery. Therefore, as permitted by Pa.R.A.P. 1701(c), the separate action for assault and battery was set down for compulsory arbitration. After it had been heard by a board of arbitrators an award was entered in favor of appellant and against appellee for Ten ($10) Dollars. No appeal therefrom was filed by either party; and that action has now been finally determined. It seems clear, therefore, that the judgment in the action for assault and battery should not be required to support an appeal by appellant from prior judgments on separate and distinct causes of action for false arrest and malicious abuse of-process. On the contrary, these actions were determined finally when summary judgments were entered thereon; and from such judgments the appeal must lie.

Where separate and distinct causes of action have been joined under permissive joinder standards of Pa.R.C.P. 1020(a) or Pa.R.C.P. 1044(a), the appealability of a judgment entered on one or more but not all counts must be distinguished from the situation in which separate counts have been used to state alternate theories for recovery on the same cause of action. In the former situation the summary judgment has terminated litigation upon a separate and distinct cause of action. In the latter, an order dismissing or entering judgment on one or more but not all counts of a complaint is interlocutory, for the plaintiff can, nevertheless, proceed to a determination on the underlying cause of action. See: J.A. & W.A. Hess, Inc. v. Hazle Township, 465 Pa. 465, 470-471, 350 A.2d 858, 861-862 (1976). Thus, the dismissal of a count alleging damages for breach of an express contract is not appealable if an alternate count seeking to recover the same damages based on quantum meruit remains undecided. J.A. & W.A. Hess, Inc. v. Hazle Township, supra. Similarly, there is no final order where a count averring negligence has been dismissed but there remains undetermined a count alleging liability for a defective product under Section 402A of the Restatement (Second) of Torts. For similar reasons, where one of several counts seeks to recover punitive damages in a complaint alleging breach of contract, a dismissal of that count does not put the plaintiff out of court on his underlying cause of action. Only if he is successful in his cause of action for breach of contract does the measure of damages become relevant. See: Safety Tire Corp. v. Hoffman Tire Compa ny, Inc., supra 458 Pa. at 103-104, 329 A.2d at 835; Brandon v. State Farm Insurance, 284 Pa.Super. 399, 425 A.2d 1163 (1981); Gurnick v. Government Employees Insurance Co., 278 Pa.Super. 437, 439 n. 2, 420 A.2d 620, 621 n. 2 (1980). The same result obtains where a separate count seeking punitive damages in a trespass action has been dismissed. See: Stengena v. Madden, supra 291 Pa.Super. at 366, 435 A.2d at 1270; Mitchell v. Center City Cadillac, supra 287 Pa.Super. at 353, 430 A.2d at 322; Bagshaw v. Vickers, supra 286 Pa.Super. at 249, 428 A.2d at 666; Giannini v. Foy, supra. In cases such as these the plaintiff is not out of court when one of several counts has been dismissed, and it is procedurally preferable to delay appellate review until the entire action has been determined.

The test announced by the Supreme Court of the United States in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and followed by the Supreme Court of Pennsylvania in Bell v. Beneficial Consumer Discount Company, supra, and Pu-gar v. Greco, supra, has no application where an appeal has been taken from judgment entered on a separate cause of action. That rule, which contains a three part test for determining appealability, has applicability only to orders which are collateral to the main cause of action. In Cohen, the issue was the appealability of an order, collateral to a stockholders’ derivative action, which denied a petition to require the plaintiff to post security to cover defendant’s expenses and counsel fees if plaintiff’s action proved unsuccessful. The Supreme Court held the order appealable because the claim adjudicated was “separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Id. 337 U.S. at 546, 69 S.Ct. at 1225, 93 L.Ed.2d at 1536. In Bell v. Beneficial Consumer Discount Company, supra, the Supreme Court of Pennsylvania applied the Cohen test in holding appealable an order denying class action status although the underlying cause of action had not been decided. Such orders, the Court said, “possess sufficiently practical aspects of finality to make them appealable.” Id. 465 Pa. at 229, 348 A.2d at 736. Similarly, in Pugar v. Greco, supra, the Court applied the Cohen test to quash an appeal from an order denying a request to be allowed to appeal from arbitration without payment of the arbitrators’ fees and court costs. The order was “indeed, collateral to the basic liability question, and it [did] involve a right too important to be denied review. The order [did] not, however, adversely affect a claimed right which [would] be irreparably lost if review [were] postponed.” Id. 483 Pa. at 74, 394 A.2d at 545.

These decisions make it clear that the Cohen test is applicable only to determine the appealability of an order which is collateral to the main action. In the instant case we are not concerned with an order that is collateral to a main action. Rather, we are faced with an order which has entered summary judgments on two entirely separate and independent actions which, for purposes of efficiency and convenience, were joined in the same complaint with a third, separate action as permitted by Pa.R.C.P. 1044(a). The order entering the summary judgments was, as we have attempted to illustrate, a final and appealable determination of separate actions for false arrest and malicious abuse of process.

We hold, therefore, that where, as here, a final judgment has been entered on a separate cause of action, that judgment is appealable. Neither the finality nor appealability of such a judgment is destroyed merely because the cause of action on which the judgment was entered was one of several causes of action which had been joined in the same complaint pursuant to Pa.R.C.P. 1044(a). See: Pennsylvania Turnpike Commission v. Atlantic Richfield Co., supra. Decisions of this Court which have reached a contrary result are overruled.

The substantive aspects of the instant case are fairly clear. Judges are absolutely immune from liability for damages when performing judicial acts, even if their actions are in error or performed with malice. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), rehearing denied, 436 U.S. 951, 98 S.Ct. 2862, 56 L.Ed.2d 795 (1978). “ ‘A judicial officer is not liable for acts done in his judicial capacity where there is not a clear absence of all jurisdiction over the subject-matter and person, even though such acts constitute an excessive exercise of jurisdiction or involve a decision that the official had jurisdiction over the particular case, where in fact he had none...... The principle involved is that all judicial officers are protected by their official character from liability in tort, because of public conduct clearly within the pale of their authority, although involving demonstrable legal error.’ ” Commonwealth v. Cauffiel, 79 Pa.Super. 596, 600 (1922), quoting 25 Corpus Juris, 515 (emphasis supplied).

Judicial immunity extends to all judicial officers, including district justices. “If a judge of an inferior jurisdiction has the power under authority of law to hear and pass on cases, to which the particular offense belongs, the same reason requires that he should be protected from liability for erroneous action, which exempts judges of superior or general jurisdiction from such liability. If judges properly expected to be most learned in the law can plead official exemption for their blunderings in the law, a fortiori those from whom less is to be expected should not be compelled to respond in damages for their mistakes honestly made.” McNair’s Petition, 324 Pa. 48, 55-56, 187 A. 498, 502 (1936), quoting Commonwealth v. Cauffiel, supra, 79 Pa.Superior at 600-601. Accord: Petition of Dwyer, 486 Pa. 585, 590-591, 406 A.2d 1355, 1358 (1979); Hanna v. Slevin, 8 Pa.Super. 509, 510 (1898).

Judicial immunity insures “the independence of the magistrates so that they may be free to exercise their discretion and apply their understanding of the law, whether correct or erroneous, to the facts and circumstances presented to them....” Petition of Dwyer, supra 486 Pa. at 591, 406 A.2d at 1358 (emphasis in original). Thus, there can be no cause of action and no recovery of damages against a district justice who accepts and processes a criminal complaint even though a careful examination of the evidence may have revealed, as appellant contends, that there was no probable cause for the criminal charges against him. See: Huendling v. Jensen, 168 N.W.2d 745 (Iowa, 1969). Similarly, there can be no recovery of damages in a civil action against a district justice who temporarily detains in his or her office or courtroom a person against whom a criminal complaint has been filed. See and compare: Burgess v. Towne, 13 Wash.App. 954, 538 P.2d 559 (1975).

The order entering summary judgments on causes of action for false arrest and malicious abuse of process is affirmed.

CAVANAUGH, J., files a concurring statement in which POPOVICH and HOFFMAN, JJ., join.

CAVANAUGH, Judge,

concurring:

I agree with the majority’s thoughtful analysis of the law concerning appeals in multi-count complaints but I feel that it is unnecessary and improper to decide, under the facts of this case, the issue of whether an order entering summary judgment on one or more but not all counts of a multi-count complaint in which several causes of action have been joined pursuant to Pa.R.C.P. 1044(a) is always appealable. “An order is final and thus appealable if it ends litigation, disposes of the entire case or effectively puts the litigant out of court.” Rogers v. Rogers, 282 Pa.Super. 480, 483, 423 A.2d 4, 5 (1980) (citing cases). As the majority notes, the cause of action for assault and battery in the instant case has been finally determined and the only counts remaining are those on which summary judgment was entered. It is clear that appellant is now “out of court” entirely, and thus the order entering summary judgment is, in this case, a final, appealable order.

I agree with the majority’s disposition of the merits of the instant appeal and therefore I, too, would affirm the order of the lower court.

POPOVICH and HOFFMAN, JJ., join this concurring statement.

      . Pa.R.C.P. 1020(a), which pertains to assumpsit, permits joinder in the same complaint of an indefinite number of causes of action which arise from contract or are quasi-contractual.

      . This rule “prevent[s] a pending appeal from affecting ‘separate disputes between other parties or involving separate subject matter.’ ” Litt v. Rolling Hill Hospital, 293 Pa.Super. 97, 100 n. 2, 437 A.2d 1008, 1010 n. 2 (1981), quoting Pennsylvania Bar Institute, Pennsylvania Practice under the Rules of Appellate Procedure (Pub. No. 1980-130) at 18.

      . If an appeal had been delayed until after final determination of the assault and battery action, it would have been untimely. It is axiomatic that an appeal must be filed within thirty days from entry of the order or judgment from which the appeal is taken. Commonwealth v. Jones, 308 Pa.Super. 41, 453 A.2d 1058 (1982); Boden v. Tompkins, 306 Pa.Super. 494, 452 A.2d 833 (1982); Erie Human Relations Commission ex rel. Dunson v. Erie Insurance Exchange, 304 Pa.Super. 172, 176, 450 A.2d 157, 158 (1982); Commonwealth v. Riebow, 299 Pa.Super. 458, 459, 445 A.2d 1219, 1220 (1982); Hesson v. Weinrebe, 288 Pa.Super. 216, 218, 431 A.2d 1015, 1016 (1981); Pa.R.A.P. 903(a).

      . The appealability of an order or judgment must be determined as of the time the appeal therefrom is filed. If the order appealed from is interlocutory, the appeal may be quashed immediately upon motion. See: Pa.R.A.P.1972. In such cases, the lack of jurisdiction to entertain an appeal from the interlocutory order cannot be corrected by subsequent events in the same action. How then can our jurisdiction to entertain an appeal taken from an order or judgment on one cause of action be affected by subsequent proceedings on a separate cause of action? The answer is that it cannot. Thus, in this case, it was the appeal from the final judgments on causes of action for false arrest and malicious abuse of process and not subsequent proceedings on the action for assault and battery which vested jurisdiction in this Court to review the determination of the false imprisonment and malicious abuse of process actions.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    459 A.2d 1263
    COMMONWEALTH of Pennsylvania, Appellant, v. Jack Douglas BEALS.
    Superior Court of Pennsylvania.
    Submitted Oct. 13, 1982.
    Filed April 22, 1983.
    Petition for Allowance of Appeal Denied Aug. 22, 1983.

      James B. Yelovich, District Attorney, Somerset, for Commonwealth, appellant.
    Jon C. Botula, Pittsburgh, for appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   WIEAND, Judge:

This is a Commonwealth appeal from an order which suppressed the remnants of recently harvested marijuana plants which had been seized, pursuant to warrant, from an open field in Somerset County. The order also suppressed observations made one day earlier by narcotics agents from a helicopter flying low over the cleared land in which marijuana plants were growing and observations of growing marijuana made two days earlier by narcotics agents who had entered the woodland surrounding the open field in which the marijuana was growing. For reasons appearing in this opinion, we reverse.

The physical search and seizure of remnants of marijuana plants was accomplished on July 24, 1980, pursuant to a warrant issued for the search of a tract of two acres of land owned by appellee, Jack D. Beals. The facts upon which the finding of probable cause for the warrant had been made appeared in an affidavit as follows:

At or about 2:00 p.m. on July 20, 1980, affiant, Kenneth R. Lemon, received information from a reliable and credible informant personally known to him for about one (1) year and whose name, residence address, place of employment, social security, age and current whereabouts are known to Kenneth R. Lemon personally. The informant has no criminal history on file with the Pennsylvania State Police, nor with the Somerset, Berlin, Meyersdale, or Central City Police Departments, nor is there any record of criminal history in the Clerk of Courts Office in the Courthouse at Somerset, Pennsylvania. The informant, to Kenneth R. Lemon’s knowledge, has been a resident of Somerset County, for in excess of twenty (20) years. The informant is an unpaid person who desires to remain anonymous because he is fearful of his safety. Prior to relating any information to the affiant Kenneth R. Lemon, the informant was informed of the consequences of giving false information to law enforcement authorities, that such conduct was a criminal offense and was further advised that any information he volunteered could and would be used against him in a court of law, if inculpatory, that he had the right to remain silent, his right to counsel of his choice before and during questioning and to a free lawyer, if he could not afford counsel as well as the right to stop answering questions at any time. The informant was not in custody for an offense nor was he the focus of an investigation. The informant acknowledged that he understood his rights and was willing to impart information to Kenneth R. Lemon.
The informant advised Kenneth R. Lemon that on prior occasions this summer and particularly during the week of July 13 through 20, 1980, while personally present on the property owned by Jack D. Beals as hereinbefore described, he personally observed what he believed to be marijuana plants being grown and cultivated in large quantities in an approximate two (2) acre area located near the extremity of a row-crop, in an area surrounded by large trees and further identified the property as the property of “Jack Beal.”
On July 20, 1980, the confidential informant took Kenneth R. Lemon to the property and identified it as the place where he saw the suspected marijuana growing. “No Trespassing” signs surrounding the property were signed by “Jack Beals”, in handwriting similar to that which appears on the deed attached. An employee of an adjacent land owner further identified the owner of the property as “Jack Beal.” (Through further investigation at the Courthouse in Somerset, Pa., -it was determined that the property in question was owned by Jack D. Beals, 818 Smith Street, Somerset, PA 15501). On July 23, 1980, both affiants in the company of Trooper Steve Lapata of the Pennsylvania State Police flew over the property in a helicopter and observed, in the area pinpointed by the informant and their research, at a heighth of approximately two hundred (200) feet, a cultivated area of approximately two (2) acres, surrounded by large trees, near the western end of a row-crop, approximately four hundred (400) individual plants of varying size up to six (6) feet. Based upon their observations, training and experience, affiants identified the plants as marijuana.

In determining the sufficiency of the affidavit to permit a finding of probable cause by the issuing authority, we follow the guidelines set forth in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and followed assiduously by the courts of Pennsylvania. See e.g.: Commonwealth v. Turner, 284 Pa.Super. 395, 425 A.2d 1161 (1981); Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980), cert. denied, 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981); Commonwealth v. Passarelli, 274 Pa.Super. 436, 418 A.2d 485 (1980); Commonwealth v. Gelfont, 264 Pa.Super. 96, 399 A.2d 414, cert. denied, 444 U.S. 930, 100 S.Ct. 273, 62 L.Ed.2d 188 (1979); Commonwealth v. Reisinger, 252 Pa. Super. 1, 380 A.2d 1250 (1977). “An affidavit supporting the issuance of a search warrant must contain first, an explanation of the underlying circumstances from which the informant received the information and reached the conclusion that fruits of a crime would be located in the place to be searched. Secondly, there must be set forth in the affidavit a reasonable basis for the affiant’s belief that his informant is credible and his information reliable.” Commonwealth v. Passarelli, supra 274 Pa.Super. at 438, 418 A.2d at 486.

In the instant case, both prongs of the test were met. The growing marijuana had been observed personally by the informant. It had also been observed from the air by state narcotics agents and a member of the Pennsylvania State Police who flew over the field in a helicopter. As to the second prong, this Court held in Commonwealth v. Prosdocimo, 308 Pa.Super. 187, 454 A.2d 84 (1982), that an issuing authority must be persuaded either that the informant was credible or that his information was reliable. Here, both were shown. The affidavit furnished the magistrate with evidence which established that the informant had been a long time (more than. 20 years) resident of Somerset County who was gainfully employed and had no criminal record. Compare: Commonwealth v. Schaszberger, 285 Pa.Super. 586, 592, 428 A.2d 200,. 203 (1981); Commonwealth v. Gelfont, supra 264 Pa.Super. at 103, 399 A.2d at 418. In addition, the informant’s tip had been corroborated by aerial observations made by the affiant himself. Compare: Commonwealth v. Funke, 306 Pa.Super. 542, 547, 452 A.2d 857, 860 (1982). Under these circumstances, the second prong of the Spinelli test was clearly-satisfied. For these reasons, we conclude that probable cause existed for the issuance of the search warrant, and that the search conducted pursuant thereto was valid.

Appellee argues, however, that the search was contaminated and the seizure of evidence subject to suppression because of illegalities occurring on the two days preceding the search. These activities enabled narcotics agents employed by the Pennsylvania Department of Justice to observe the marijuana being grown on appellee’s land. On July 20, 1980, Agent Kenneth R. Lemon was told by the informant that the informant had observed marijuana plants growing on land of the appellee, Jack D. Beals. The informant took Lemon to the Beals property to show him the area in which he had seen the growing marijuana, but an actual view of the growing plants was obstructed by woodland. On July 22, 1980, Lemon and another agent went upon lands of a neighbor, with permission, but they were unable to see the clearing because of surrounding trees. They observed “No Trespassing” signs but, nevertheless, entered the woods on Beals’ land and in this manner were able to observe 350 to 400 marijuana plants growing in a cleared space among the trees. On this occasion nothing was seized. The following day, July 23, 1980, the agents circled over the clearing at a height of 200 feet in a State Police helicopter and with the assistance of binoculars were again able to observe growing marijuana plants. They also took aerial photographs of the property showing that the open space in which marijuana plants were growing was surrounded by woodland. The cleared space was situated on a 17 acre tract of land at a corner of the tract most distant from the dwelling house. A search warrant was obtained during the late afternoon of the same day and was executed the following morning. The marijuana plants had by then been harvested, and only 81 grams of marijuana and remnants of several marijuana plants were seized.

Before considering the propriety of the observations made by the agents on July 22 and 23, 1980, it may not be amiss to repeat, as we have already observed, that the information imparted to Agent Lemon by the informant, an eyewitness to the growing marijuana, whose credibility had been established, was itself adequate to support the issuance of the search warrant. It is also significant that neither the activities of the agents on July 22, 1980 nor their observations on that day were recited in the affidavit submitted to the issuing authority. Thus, even if the trespass of July 22, 1980 had constituted a violation of appellee’s Fourth Amendment rights, it would not have prevented the issuance of a search warrant for probable cause obtained validly and recited adequately in the affidavit presented to the issuing authority.

More importantly, the trespass on appellee’s land did not of itself constitute an illegal search. United States v. Capps, 435 F.2d 637, 640 (9th Cir.1970); Atwell v. United States, 414 F.2d 136, 138 (5th Cir.1969); McDowell v. United States, 383 F.2d 599, 603 (8th Cir.1967). Accord: Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265, cert. denied, 426 U.S. 940, 96 S.Ct. 2658, 49 L.Ed.2d 392 (1976); Commonwealth v. Johnson, 247 Pa.Super. 208, 212, 372 A.2d 11, 13 (1977) (the fact that observations of police involved a trespass of private property is merely one factor to consider in determining the reasonableness of a visual intrusion), vacated on other grounds, 484 Pa. 349, 399 A.2d 111 (1979); Commonwealth v. Janek, 242 Pa.Super. 340, 342, 363 A.2d 1299, 1300 (1976); Commonwealth v. Soychak, 221 Pa.Super. 458, 462, 289 A.2d 119, 122 (1972). Open fields generally are not considered areas subject to a reasonable expectation of privacy. Therefore, the courts have held that the special protection accorded by the Fourth Amendment to people in their “persons, houses, papers, and effects” does not extend to open fields. See: Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Commonwealth v. Treftz, supra; Commonwealth v. Metzger, 295 Pa.Super. 267, 273, 441 A.2d 1225, 1228-1229 (1981); Commonwealth v. Janek, supra; Commonwealth v. Robbins, 216 Pa.Super. 233, 263 A.2d 761 (1970) (Concurring Opinion by Hoffman, J.).

In the instant case, the field, undisputedly not within the curtilage, was located 1170 feet from the dwelling and was not visible therefrom. It consisted of a cleared space surrounded on all sides by woodland. In such an open field there could be no reasonable expectation of privacy. It certainly was not reasonable to expect privacy merely because “No Trespassing” signs had been posted around the perimeter of appellee’s tract of land. Thus, the visual observations of growing marijuana plants, whether from the ground or from the air, were not constitutionally forbidden, and information derived thereby was not subject to suppression. For similar reasons, the search warrant executed on July 24, 1980 was not defective because its issuance had been based upon an affidavit containing a reference to observations of marijuana made from a helicopter. See: United States v. Debacker, supra.

The order suppressing evidence is reversed, and the case is remanded for further proceedings. Jurisdiction is not retained.

      . The Commonwealth may appeal from an order granting suppression where the record demonstrates that the practical effect of the order is to terminate or substantially handicap further prosecution. Common

        wealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963); Commonwealth v. Lapia and Dugger, 311 Pa.Super. 264, 457 A.2d 877 (1983); Commonwealth v. Lawrence, 311 Pa.Super. 326, 327, 457 A.2d 909, 910 (1983); Commonwealth v. Williams, 309 Pa.Super. 63, 68-69, 454 A.2d 1083, 1086 (1982).

      . The "open fields” doctrine has not been overruled by the decision of the Supreme Court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See: Commonwealth v. Treftz, supra 465 Pa. at 626, 351 A.2d at 270 (Katz lends implicit support to the "open fields” doctrine). See also: United States v. Oliver, 686 F.2d 356 (6th Cir. 1982); Patler v. Slayton, 503 F.2d 472, 478 (4th Cir.1974); United States v. Minton, 488 F.2d 37, 38 (4th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1936, 40 L.Ed.2d 287 (1974); United States v. Brown, 487 F.2d 208 (4th Cir.1973), cert. denied, 416 U.S. 909, 94 S.Ct. 1617, 40 L.Ed.2d 114 (1974); United States v. Capps, supra; United States v. Hollon, 420 F.2d 302 (5th Cir.1969); United States v. Debacker, 493 F.Supp. 1078 (W.D.Mich.1980) (While the Hester "open fields” doctrine is arguably modified by Katz, "open fields” are not areas in which one traditionally can expect privacy.); State v. Hanson, 113 N.H. 689, 691, 313 A.2d 730, 732 (1973) ("[W]ith regard to areas around a dwelling, there is a close relationship between the basis for determining if an area is within the curtilage and whether it is a place where there is a reasonable expectation of privacy.”).


author: BECK, Judge:

text:
    459 A.2d 1267
    COMMONWEALTH of Pennsylvania v. Charles Allen DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1982.
    Filed April 22, 1983.

      Claudia Creo Sharon, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   BECK, Judge:

Appellant, Charles Allen Davis, was convicted of robbery by a judge sitting non-jury. He filed timely post-trial motions and was sentenced to a period of incarceration of from two to six years.

Appellant’s first claim is that the lower court erred in finding that the Commonwealth had proven beyond a reasonable doubt that appellant was guilty of robbery. The test for evaluating that claim was recently reiterated by our Supreme Court in Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982) (collecting cases): “[W]hether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” We proceed to review the evidence in that light.

Thomas Edward Martin was working the 12:00 a.m. to 8:00 a.m. shift on March 9, 1977 at one of the William Penn Pipe Shops in Pittsburgh. At approximately 3:00 a.m., a young black man approached the window of that shop through which business was transacted and requested a grape soda. That window is approximately 30 inches above ground level. Martin went to the rear of the shop to find the soda and upon turning to bring that item to the customer, he observed a second man entering through the window and moving toward the cash register. That second man told Martin to “get back” and he removed the money from the cash register. He then asked Martin where the rest of the money was located, to which Martin replied there was no more money in the shop. The perpetrator then opened a drawer which contained a cigar box, and Martin told him that box contained some money from that evening’s sales. The perpetrator removed the money and fled through the door which was locked to those on the outside. The entire episode lasted approximately twenty seconds during which time the victim had an opportunity to view clearly the perpetrator’s face in a well-lit shop. In answer to a question on direct examination, Martin stated that he did not attempt to thwart the perpetrator because of his concern for his safety. He stated: “It is my generally developed policy when-1 am being robbed to let them take all the cash, rather than subject myself to possible injury.” Notes of Testimony (“N.T.”) 6/11/79 at 22. Martin testified that he had been robbed previously.

John Joyce, an employee of Bell of Pennsylvania who was working the 12:00 a.m. to 8:00 a.m. shift across the street from the William Penn Pipe Shop,- testified that at approximately 3:00 a.m. he observed two men get out of a Volkswagen and approach the pipe shop. He saw one of them beginning to enter through the window opening. That man’s feet were off the ground. Joyce described the car as a dark blue Volkswagen beetle missing a headlight. He called the police and supplied this information.

William L. Stoehr, also of Bell Telephone, testified to substantially the same facts, although he testified that he observed one of them actually enter through the window opening.

Based upon information provided by Mr. Joyce and by the victim, descriptions of the two men and the automobile were broadcast over police radio. The descriptions of the perpetrators were of a tall, thin, brown-skinned black man and a shorter, medium built, darker black man. The car was described as a dark blue or black Volkswagen missing one headlight.

Officer McIntyre of the Pittsburgh Police Department and his partner observed a Volkswagen with only one headlight. Because it matched the description they had heard previously on their radio, they drove through a red light and attempted to stop the automobile. There was no other traffic in the area at that early hour in the morning. The Volkswagen sped off, rounded a corner and the officers lost sight of it. Shortly thereafter, they observed the vehicle parked with skid marks leading up to it.

Pittsburgh Police Officer Williams and his partner heard over their radio that a Volkswagen fitting the description of the one previously described had been spotted and was being pursued. They next heard a broadcast that the vehicle had been located on Kelly Street, and they drove to the scene where they found the car. They observed the skid marks and determined that the engine was still warm. The other two officers were searching the house in front of which the car was parked when appellant emerged from a side street. When asked from where he came, appellant replied that he had been visiting a friend. He further questioned the officers as to why they were looking at his car. Appellant would not provide a location of his friend’s residence, and Officer Williams noted that all the homes in that area were vacant. The officers transported to the pipe shop for identification both appellant and another man who was walking alone in the area and who fit the general description of the shorter, darker individual. Mr. Martin, whom Officer McIntyre characterized as appearing frightened, failed to identify these men as the perpetrators. This occurred fifteen to twenty minutes after the robbery. Martin testified on cross-examination: “If I wouldn’t have been frustrated, flustered at the time, I feel that I would have identified him. It was within my capability to have identified him then, but I did not.” N.T. 6/11/79 at 45. And on redirect, he further testified: “At the time that the police brought the Defendant into the store at approximately 3:20 a.m., had I not been flustered or distraught more or less, I could have identified the Defendant, but as I was in that state, more or less, I could not make an identification[.]” Id. at 48.

One week after the robbery, Detective James Utz in conducting the investigation of that robbery interviewed Mr. Martin who supplied a description of the perpetrator. That same evening, Detective Utz “looked in [his] rear-view mirror and, upon seeing the driver,- immediately knew who he was.” Id. at 97. After appellant [the driver] parked his black Volkswagen, the detective arrested him. The victim subsequently identified appellant three times as the man who took the money. He positively identified him at a lineup, preliminary hearing and at trial.

The central prong of appellant’s attack on the sufficiency of the evidence is premised upon the fact that at the initial confrontation, the victim was unable to identify appellant as the man who robbed him. While that is, of course, true, the independent basis for the subsequent identifications was fully covered at trial and the trial court found that the victim’s initial hesitancy to identify appellant as the perpetrator was based upon his nervous state. There was ample basis in the record to demonstrate that the victim picked out appellant at the subsequent lineup, preliminary hearing and trial based upon an independent recollection of his observation during the time of the robbery under good conditions, i.e. in a well-lit shop at very close range observing the intruder’s face as well as his stature.

That argument of suggestiveness clearly was presented to the trial judge who as the trier of fact was entitled to weigh the victim’s testimony and conclude that his subsequent positive identifications were reliable.

Were this a jury trial, it would have been incumbent upon the judge to provide upon request the jury with a [Commonwealth v.] Kloiber [378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954) ] cautionary instruction because of the victim’s prior failure to identify the robber. See, e.g., Commonwealth v. McKnight, 307 Pa.Super. 213, 453 A.2d 1 (1982) (collecting cases). As this Court stated in Commonwealth v. Whitman, 252 Pa.Super. 66, 76, 380 A.2d 1284, 1289 (1977):

The weight to be given to identification testimony is for the trier of fact. Commonwealth v. Donald, 227 Pa.Super. 407, 323 A.2d 67 (1974). Anderson offered an explanation for the discrepancies in his identifications, which was also for the jury’s evaluation. Such a discrepancy may affect the witness’s credibility. Clearly, however, it does not affect the admissibility of testimony and does not require an instruction that the jury disbelieve the witness.

The trial judge in this case was the trier of fact and as such, it was his duty to evaluate credibility of the witnesses and the weight their testimony was to be given. E.g., Commonwealth v. Haines, 296 Pa.Super. 257, 442 A.2d 757 (1982).

Appellant raises correlatively prior counsel’s ineffectiveness in failing to file a suppression motion. Our Supreme Court in Commonwealth v, Rashed, 496 Pa. 26, 436 A.2d 134 (1981) recently addressed the claim that a prior inability to identify in a line-up coupled with an opportunity to observe the perpetrator at a hearing impermissibly tainted an in-court identification and that counsel therefore was ineffective for failing to move to suppress that identification. The Rashed Court rejected that ineffectiveness claim:

He argues that since [eyewitness] Cusack had failed to identify him at the line-up conducted prior to the preliminary hearing, Cusack’s subsequent in-court identification of appellant was impermissibly tainted by his alleged observation of appellant at the hearing. Thus, appellant argues, his counsel was ineffective for failing to attempt to suppress Cusack’s testimony on this basis. This Court has already held, in response to appellant’s challenge on direct appeal, that Cusack’s inability to identify appellant at the lineup did not affect the admissibility of Cusack’s in-court identification testimony but only its weight and credibility. [Commonwealth v. Davis ] 466 Pa. [102] at 113, 351 A.2d [642] at 647. The independent basis of Cusack’s identification of appellant was elicited in detail by the Commonwealth and subjected to rigorous cross-examination at both of appellant’s trials. In the face of this demonstrated independent basis, a motion to suppress the identification testimony of Cusack would have succeeded only upon a showing that the alleged sighting of appellant by Cusack “was so impermissibly suggestive .as to give rise to a very substantial likelihood of misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Here, appellant’s unsupported allegation, even if true, does not seriously undermine the reliability of Cusack’s in-court identification. Because the trial court would have properly denied a motion to suppress Cusack’s testimony, see Commonwealth v. Smith, 262 Pa.Super. 258, 39[6] A.2d 744 (1978), appellant’s claim that his counsel was ineffective for failing to pursue this issue must be rejected. As we have often stated, counsel will not be held ineffective for failing to perform a futile act. Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974).

Id., 496 Pa. at 32-33, 436 A.2d at 137-138.

We find the reasoning of the Rashed Court to be persuasive in evaluating the foregoing ineffectiveness claim in the instant appeal. The independent basis for the identification was thoroughly explored at the non-jury trial, and the trial judge had before him the same testimony as would have a suppression court. Hearing that testimony, he rejected the argument of impermissible suggestiveness. It was his province as factfinder to reconcile as he did the initial failure to identify with subsequent positive identifications. The suppression court properly would have denied such a motion as being meritless and found that this initial inability affected the weight, not the admissibility of the in-court identification testimony. Accordingly, we will not find counsel ineffective for failing to raise that claim in a suppression motion. Rashed.

Appellant claims finally that the trial court erred in rejecting second counsel’s claim that trial counsel had been ineffective for failing to challenge appellant’s arrest by Detective Utz as lacking probable cause. This Court in Commonwealth v. Evans, 305 Pa.Super. 450, 456, 451 A.2d 734, 737, (1982) (quoting Commonwealth v. Jones, 271 Pa.Super. 528, 532, 414 A.2d 379, 381 (1979)) reiterated the test for finding probable cause to arrest:

Probable cause to arrest existed if, at the time appellant was detained by the police, the facts and circumstances known to them and of which they had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that appellant had committed the shooting. Commonwealth v. Powers, 484 Pa. 198, 201, 398 A.2d 1013, 1014 (1979). The test is not one of certainties but one of probabilities dealing with considerations of everyday life. Commonwealth v. Dickerson, 468 Pa. 599, 605, 364 A.2d 677, 681 (1976). The facts known must be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training. Commonwealth v. Tolbert, 235 Pa.Super. 227, 230, 341 A.2d 198, 200 (1975).

The lower court correctly rejected this claim as raised in appellant’s supplemental statement pursuant to Rule 1925(b). The arrest was the culmination of the week’s activities, and the facts to which the other officers, the Bell Telephone repairmen and the victim testified were known to Detective Utz at the time of arrest. We conclude that the testimony of those individuals as detailed above amply supported the finding that Detective Utz had probable cause to arrest appellant. Therefore we will not find counsel ineffective for failing to raise this meritless claim.

Appellant claims additionally that there was no evidence supporting a finding that he threatened the victim as required under 18 Pa.C.S.A. § 3701(a)(1)(h):

§ 3701. Robbery

(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury[.]

In Commonwealth v. Hurd, 268 Pa.Super. 24, 29, 407 A.2d 418, 420 (1979) (citing Commonwealth v. Scott, 246 Pa.Super. 58, 369 A.2d 809 (1976)) this Court concluded that “[t]o sustain a conviction under § 3701(a)(1)(h), the Commonwealth need not prove a verbal utterance, but may show aggressive actions that threaten serious bodily injury.” Here we have appellant climbing through the shop window and saying to Martin: “Get back, Get back.” Appellant’s mode of entry and his warning to Martin certainly were aggressive actions which implicitly carried with them a threat of imminent bodily harm if Martin failed to comply, and there was therefore sufficient evidence for the trier of fact to find that element of the robbery offense was proved beyond a reasonable doubt.

Judgment of sentence affirmed.

      . This claim of ineffectiveness was clearly raised in appellant’s Statement of Matters Complained of upon Appeal Pursuant to Pa.R.A.P. 1925(b) as well as in his supplemental statement. Appellant’s second claim of prior counsel’s ineffectiveness alleging the absence of probable cause to arrest, see discussion, infra, was raised in his Pa.R.A.P. 1925 supplemental statement. Those claims were addressed and rejected by the trial court in its opinion. While those claims were not preserved in appellant’s written post-verdict motions, as filed by trial counsel, John D. Cohen, Esquire, they were raised at the first stage at which trial counsel, whose ineffectiveness was claimed, did not represent appellant. The statement and supplemental statement pursuant to Rule 1925 were filed by the Public Defender. That office did not represent appellant at trial or in the filing of post-verdict motions. Thus, those claims were properly preserved under an exception where ineffectiveness of prior counsel is raised to the rule that "[i]ssues not raised in post-verdict motion's will not be considered on appeal.” Commonwealth v. Webster, 490 Pa. 322, 325, 416 A.2d 491, 492 (1980) (citing Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975)). Since the claims of ineffectiveness of counsel were preserved by appellant’s second counsel and denied by the trial court, we herein review the trial court’s denial of those claims. Appellant is represented on appeal by Claudia C. Sharon, Esquire.

      . We reiterated in Commonwealth v. Evans, 305 Pa.Super. 450, 455, 451 A.2d 734, 736 (1982) the ineffectiveness of counsel analysis:
      In evaluating the above omission in the context of an ineffective assistance claim, we must ask whether the claim foregone bore arguable merit. For it is clear that counsel is not ineffective for failing to raise baseless claims. Commonwealth v. Hosack, 485 Pa. 128, 401 A.2d 327 (1979); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). "And we will find a ‘reasonable basis' for inaction if the thing not done had no likelihood of success.” Commonwealth v. Ford, 491 Pa. 586, 594, 421 A.2d 1040, 1044 (1980).


author: VAN der VOORT, Judge:

text:
    459 A.2d 1272
    Reverend Alfred OTT, as Pastor of St. Ambrose Roman Catholic Church, Schuylkill Haven, Schuylkill County, Pennsylvania v. Leon A. REAGER, Marian M. Reager, and Margaret M. Reager Connors, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed April 22, 1983.
    Petition for Allowance of Appeal Denied Sept. 7, 1983.

      Maureen E. Hogan, Pottsville, for appellants.
    Thomas J. Nickels, Pottsville, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This is an action in equity. The plaintiff-appellee is the pastor of a church erected on a tract of land in North Manheim Township of which real property the pastor is the legal owner by a deed dated February 19, 1973. The church property’s western boundary, according to the deed description and most of the testimony abuts Maple Court, a fifteen foot alley located in Schuylkill Haven Borough. The Borough has been made an “involuntary plaintiff” in these proceedings, and has not been an active party. Maple Court has never been formally accepted as a public street by the Borough.

In November 1976, the plaintiff-appellee began construction of a church on the property. The church plans envisioned a paved driveway, using Maple Court, at the point where it intersects with Pear Street, for ingress and egress. Maple Court runs roughly north and south; as indicated above, it abuts the western boundary of the church property-

The appellants own property fronting on Pear Street. Pear Street runs east and west; is an opened, paved street, accepted by the Borough by ordinance in 1966; and on its eastern end terminates in a T intersection with Maple Court. Sometime after 1966 (not otherwise specified) the paving was extended by the Borough across the intersection with Maple Court to the hedge and tree line forming the church’s western boundary. The driveway from the church parking lot, as planned, would empty into this paved portion of the T intersection.

In May, 1977, appellants caused an automobile to be placed in the Maple Court-Pear Street intersection, thus blocking public access across the intersection into the church property; and thereafter placed chain barriers across Maple Court at the intersection of Pear Street and also at the intersection of another street, Fern Court some short distance to the north.

The Church filed an equity action to enjoin appellants from obstructing access from the church property to Pear Street. The lower court found in favor of appellee. Exceptions were denied and a final decree was entered. This appeal followed.

The resolution of this appeal is dependent upon whether the public in general has a legal right of access across the intersection, which is, in turn, dependent upon whether Maple Court is a public street. It is undisputed that the Borough never expressly accepted or acquired Maple Court as a public street. In the court below appellee first argued that Maple Court became a public way by reason of prescriptive use. The court found evidence of this contention insufficient. Neither party excepted to this ruling.

Appellee’s second contention is that the public has a right to use Maple Court and Pear Street “by reason of dedication and implied acceptance by the Borough____” (Opinion, p. 2) The court sustained this contention based on the following findings. In 1910 the land west of the church property including what are now known as Pear Street and Maple Court, was owned by W.T. Doherty and his sisters. Doherty, in 1910 (and again in 1917) divided this parcel according to an unrecorded plan; designating streets including Pear Street and Maple Court. Lots were sold within this plan. The lots were described in various deeds by reference to streets and courts in the plan. Some of these lots were subsequently conveyed to others with references to the plan being made in the deed.

As to the use of the streets, the court found that several owners of properties adjoining the plan have traversed Pear Street and Maple Court and Fern Court, from 1953 to 1977. One such owner used it “several times a month” between 1953 and 1977. And another used it “on an almost daily basis” from 1960 to 1973. (Opinion p. 17) Such use was without permission or protest. In 1966, the Borough accepted Pear Street as a public street. Sometime in 1966 the Borough paved Pear Street and across the portion of Maple Court immediately to the east of Pear Street up to the tree and hedge line of the property. In 1968 the Borough had installed a sanitary sewer system beneath Maple Court, extending from Pear Street to Fern Court. The Borough thereafter handled and adjusted complaints concerning drainage problems related to the sewer system. The Borough also handles the snow removal involving the intersection of Pear and Maple.

The lower court concluded:

(a) That the grantor’s conveyances of land by reference to a plan of his land, even though unrecorded, operated as an offer to dedicate to public use the streets and ways shown on the plan: Reed v. Reese, 473 Pa. 321, 374 A.2d 665 (1977); Bieber v. Zellner, 421 Pa. 444, 220 A.2d 17 (1966); Rahn v. Hess, 378 Pa. 264, 106 A.2d 461 (1954).

(b) Following the offer to dedicate, there must be clear and convincing evidence of an acceptance by the municipality within 21 years thereafter: Kramer Appeal, 438 Pa. 498, 266 A.2d 96 (1970); Milford Borough v. Burnett, 288 Pa. 434, 136 A. 669 (1927); plus the Act of May 9, 1889, P.L. 173, as amended, 36 P.S. § 1961.

(c) The offer to dedicate is repeated in every subsequent deed in a chain of title, which repeats the language of the first deed: Elliott v. H.B. Alexander & Son Inc., 41 Pa. Commonwealth Ct. 184, 399 A.2d 1130 (1979); Eshelman v. Ephrata Borough, 56 Lanc.Rev. 47 (1956) each new offer to dedicate may therefore be considered to open up a fresh 21 year period of limitations to accept.

(d) Acceptance of an offer to dedicate may be implied from long continued public use or from authorized municipal acts, Kniss v. Borough of Duquesne, 255 Pa. 417, 100 A. 132 (1917) (continuous general use by the public, plus the making of street repairs by street commissioners); McKee v. Pennsylvania R.R. Co., 255 Pa. 560, 100 A. 454 (1917) (Incorporation of the street in borough maps, plus mentions in borough counsel records as a public street); Steel v. Huntingdon Borough, 191 Pa. 627, 43 A. 398 (1899) (repair and maintenance of the road) Wensel v. N. Versailles Twp., 136 Pa.Superior Ct. 485, 7 A.2d 590 (1939) (ordinances giving a traction company a right to operate a street car line along the street; plus construction of a sewer in the bed of the street).

The lower court finally concluded that the Borough through its conduct had demonstrated an "intention to accept that portion of Maple Court in question here” citing McKee v. Pennsylvania R.R. Co., supra. (Opinion pp. 19-20). Needless to say, the appellants disagree. They argue that the implied offer to dedicate by the original owners in 1910 expired at the end of 21 years thereafter under the statute quoted above, 36 P.S. § 1961, and the offer to dedicate was not renewed, by subsequent deeds making reference to the plan, despite the language in Elliott v. H.B. Alexander & Son, Inc., discussed above.

Appellants cite three vintage Supreme Court decisions: C.L. Flaccus Glass Co. v. Brackenridge, 226 Pa. 89, 75 A. 36 (1909); Scott v. Donora Southern R.R. Co., 222 Pa. 634, 72 A. 282 (1909); and Cotter v. Philadelphia, 194 Pa. 496, 45 A. 336 (1900). These three cases although relatively old do establish what is the applicable law in Pennsylvania. The principle seems correct and reasonably clear on careful consideration: Incorporation of streets and alleys into a plan, recorded or unrecorded, constitutes an offer to dedicate the streets and alleys for use by the public (as well as owners of land within the plan); however, reference in various deeds “to the plan for convenience of description; and to the streets as boundaries, does not give rise to an implication of a new dedication of the land for streets ...” Cotter, 194 Pa. at 497, 45 A. 336, quoted with approval in Scott v. Donora Southern R.R. Co., 222 Pa. at 642, 72 A. 282. In Elliott v. H.B. Alexander, 41 Pa. Commonwealth Ct. at 190, 399 A.2d 1130, the Commonwealth Court recognized, in rather special circumstances a new dedication of a street originally dedicated in 1917, where all of the owners of lots in the plan, including the Elliott’s predecessor in title, in 1949 joined in a petition to have the land in the plan annexed to the City of Lebanon. The petition contained a map showing the street in question. The court held there was a rededication of the street to the public. Accordingly, Elliott involved a very different factual situation from the earlier Supreme Court cases, and from the facts in the present case.

Nor is this appeal controlled by such cases as Bieber v. Zellner, 421 Pa. 444, 220 A.2d 17 (1966) or Vinso v. Mingo, 162 Pa.Superior Ct. 285, 57 A.2d 583 (1948). A superficial reading of those cases may appear to support appellee’s contention that subsequent deeds which refer to a proposed or a private road may act as a rededication. However, if Bieber and Vinso are read carefully and in their full context, they stand for the proposition that when a grantor subdivides a parcel and in the various deeds he describes the subparcels by reference to a presently nonexisting or private road contained within the parcel then his grantees have a right to use such road(s). In other words, only when the deed is from the original grantor will a dedication be inferred.

In the present case, the record contains an admission that there were five deeds on record in the Recorder of Deeds office, each of which made reference to the Doherty plan, but there is nothing in the record furnished to us to establish that the grantor in any one, or all the five deeds had, the authority or intention, express or implied, to make a fresh rededication of Maple Court as a public way.

Therefore, we conclude that the offer to dedicate Maple Court as a public way lapsed 21 years after 1910, or perhaps 1917, under the 1889 statute, 36 P.S. § 1961, and appellee has not demonstrated his right of access to cross Maple Court to Pear Street. As appellee’s property did not devolve from the Doherty tract we need not discuss the rights of those property owners who are successors of the grantees of such tract.

We vacate the order of the lower court, remand the case with directions that an appropriate decree consistent with this Opinion, be entered in favor of appellants.

Jurisdiction is relinquished.

      . Defendants-appellants contend that the church property’s western boundary is twenty feet to the west of Maple Court, but the lower court found that the church property abuts Maple Court.

      . The court's 17th finding of fact was that the ordinance approved July 11, 1966 "accepted Pear Street as a dedicated street up to the western edge of the Maple Court intersection (Emphasis added) The Borough officials testified that Maple Court was never accepted by the Borough.

      . The statute reads as follows:
      Unopened ways or streets on town plots
      Any street, lane or alley, laid out by any person or persons in any village or town plot or plan of lots, on lands owned by such person or persons in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be, laid out. 1889, May 9, P.L. 173, No. 192 § 1.
      Repealed in Part
      Repealed, in so far as section relates to boroughs, by act of 1915, May 14, P.L. 312, ch. XIII, art. I, § 1.
      Although the statute has been repealed as to boroughs, equivalent provisions have been included in other legislation: see 53 P.S. § 46724, so that the same restriction is applicable to Boroughs. See Elliott v. Alexander, 41 Comwth.Ct. 184, 190 n. 4, 399 A.2d 1130, 1134 n. 4 (1979).

      . It happens that in the Elliott case the court found, as appellants argue here, that there was no sufficient proof of "an unequivocal intention (of the municipality) to accept Decatur Street as a street ....” Elliott, 41 Commonwealth Ct. at page 191, 399 A.2d 1130.

      . For a discussion on such grantees’ rights see: Bieber v. Zellner, supra, and Rahn v. Hess, 378 Pa. 264, 106 A.2d 461 (1954); and Hunsicker v. Katz, 310 Pa.Superior Ct. 213, 456 A.2d 576 (1983).

      . At the time this action was commenced, 53 P.S. § 46724 provided as to boroughs, that a street could be opened subsequent to the 21 year period by consent of all the owners of the abutting real estate. Currently, the pertinent part of § 46724 reads:
      Whenever any street shall have been laid out and shall not have been opened to, or used by the public for a period of twenty-one years, such street shall not thereafter be opened without the consent of at least fifty-one percent of the number of owners of the abutting real estate and without the consent of the owners of at least fifty-one percent of the property abutting such street, based on a front foot basis.
      As amended 1978, April 28, P.L. 76, No. 36, § 1, effective in 60 days. As affected 1980, Oct. 5, P.L. 693, No. 142, § 306, effective in 60 days.
      The parties have not addressed themselves to such provision.


author: SPAETH, Judge:

text:
    459 A.2d 1276
    COMMONWEALTH of Pennsylvania, Appellant, v. Charles M. MACK.
    Superior Court of Pennsylvania.
    Argued Nov. 3, 1982.
    Filed April 29, 1983.
    Petition for Allowance of Appeal Denied Oct. 3, 1983.

      Sarah Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    John W. Packel, Chief Appeals, Assistant Public Defender, Philadelphia, for appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   SPAETH, Judge:

This is an appeal by the Commonwealth from an order suppressing evidence seized incident to an arrest. The lower court held that the police officer had no probable cause to make the arrest. However, we think the officer did, and therefore reverse.

We must first decide whether the lower court’s order is appealable. Recently we held that “[w]hen confronted with a Commonwealth appeal from an order suppressing evidence, we must determine for ourselves whether the order is appealable — whether it terminates or substantially handicaps the prosecution; and we must make that determination on the basis of the record, and on that basis alone.” Commonwealth v. Lapia, 311 Pa.Super. 264, 277, 457 A.2d 877, 884 (1983) (en banc). Here, the charge is burglary and related offenses, including theft by unlawful taking and disposition and receiving stolen property. The evidence suppressed is a stolen typewriter. Since without this evidence the Commonwealth will be unable to prove that the defendant possessed stolen property, the suppression order will terminate the prosecution. The order is therefore appealable.

The lower court opens its opinion with the following “Finding of Facts:”

Officer William Hinkle testified that on November 18th, 1980, at approximately 1:00 A.M., he drove past the defendant and another male at 12th and Callowhill Streets, Philadelphia, Pennsylvania (N.T., p. 5). He stated that he observed the two males during a heavy rain carrying an electric typewriter inside a plastic trash bag (N.T., p. 5). The officer testified that he asked the defendant and the other male, “Who belonged to the typewriter?” The officer added that both males denied owning the typewriter (N.T., p. 5). The officer added that he asked them, “Where they got the typewriter” and they stated to him that, “They found it in the trash”, pointing across the street to a restaurant where trash bags were sitting out. (N.T., p. 6).
The officer stated that since neither male could produce proof of ownership for the typewriter, he called for a patrol wagon and took the two males and the typewriter to Central Detectives (N.T., p. 6). The officer added that before he arrested the two males, he made a search of the area for burglarized properties and found none (N.T., p. 6). He further stated that he had no reports of a burglary at the time he arrested the two males (N.T., p. 15). The officer added that the typewriter was reported stolen the next day.
Slip op. at 1-2.

Following these findings, the lower court concludes as a matter of law that “the arrest of the defendant was without probable cause .... While the police officer’s observation of the defendant might have aroused his curiosity, the officer did not possess reasonable suspicion that the defendant was violating any law or facts to conclude that criminal activity was afoot.” Id. at 2.

When a lower court’s findings of fact are supported by the record, we must accept the findings. Commonwealth v. Lapia, supra (collecting cases). Here the lower court’s findings are supported by the record. The question, therefore, is whether those findings support the court’s conclusion of law that the police had no probable cause to make the arrest. As to conclusions of law we are free to make our own decision. Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d 4 (1981), Commonwealth v. Harm, 272 Pa.Super. 431, 416 A.2d 533 (1979).

Whether the police have probable cause to make an arrest

depends upon whether at the time of the arrest the facts and circumstances within the knowledge of the officer, or of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in believing that the suspect has committed or is committing a crime.
Commonwealth v. Hayes, 237 Pa.Super. 510, 513, 352 A.2d 121, 122 (1975).

As appellee, defendant relies heavily on Commonwealth v. Mackie, 456 Pa. 372, 320 A.2d 842 (1974), and that is a good case with which to start our discussion, for on its facts it is very similar to this case. In Mackie the defendant was walking down the street carrying a television set and a pair of field glasses.

The officer testified: “I asked him — I asked the defendant where was he going. The defendant told me he was going home. I asked him where did he live at. He told me in the [3100] block of Bancroft. I asked the defendant where he was coming from. He told me 3800 North 18th Street. I asked where did he get the t.v. from. He told me him and his girl friend had an argument. He took the t.v. back. So I told him it was unusual for him to be coming from 3800 North 18th Street all the way to Broad and Erie and Bancroft Street is only seven blocks away. The defendant told me that he was looking for a cab and there was no cab that passed him on the way. So
I asked the defendant did he have any money to catch a cab. He said no, he was going home, let the cab take him home and pay the cab when he got home. So the story didn’t seem right. So I took the defendant in for investigation.
Id., 456 Pa. at 374, 320 A.2d at 843.

The Supreme Court held that probable cause to arrest did not exist. “The facts and circumstances known to the arresting officer may have warranted his suspicions, but not any belief that the appellant had committed or was committing a crime.” Id., 456 Pa. at 375, 320 A.2d at 844 (citation omitted; emphasis in original).

While Mackie certainly supports appellee, we are not persuaded that it is dispositive. As the Court observed in Mackie, “Each case must be reviewed under its own unique facts and circumstances.” Id., 456 Pa. at 376, 320 A.2d at 844. In examining the facts of a case, the court may find that “the nature of the property and the manner and circumstances in which it is possessed may contribute significantly to a finding of probable cause.” W. LaFave, Search and Seizure § 3.6 at 645 (1978). The court may also find the time of the occurrence significant, for “some activities that are commonplace during daytime, business hours give rise to suspicion during other times of the day.” Commonwealth v. Ellis, 233 Pa.Super. 169, 174, 335 A.2d 512, 515 (1975).

[T]he point is that these circumstances [time of day, nature of property, manner and circumstances of possession] are highly suspicious and that therefore it will take only a bit more, perhaps as a consequence of a stopping for investigation, to bridge the gap. In particular, those circumstances will likely constitute probable cause if in addition there is present one or more of the following additional facts: (a) an effort by the suspect to conceal the object from police view; (b) an effort by the suspect to disassociate himself from the object upon approach of the police; (c) flight upon approach of the police; (d) refusal by the suspect to respond to reasonable police inquiries about the object; (e) the giving of an implausible explanation by the suspect concerning how the property came into his possession or what he was presently doing with the property; or (f) the surreptitious transfer of the property from one person or vehicle to another.
W. LaFave, Search and Seizure, supra at 646-47 (footnotes omitted).

Here, we have concluded that the Commonwealth proved the “bit more” needed to elevate suspicion to probable cause. In explaining this conclusion, we shall refer to portions of the officer’s testimony not referred to by the lower court. We should not do that if anything suggested that the lower court had found any of the officer’s testimony incredible, for as we have indicated, we are bound by the lower court’s appraisal of the witnesses. Commonwealth v. Lapia, supra. However, the officer’s testimony was uncontradicted, and so far as we can tell, the lower court accepted all of it. Thus in making its findings, the court simply quotes or paraphrases parts of the officer’s testimony. The court appears to have rested its decision not on any disbelief of the officer but rather on the conclusion that while what the officer said was true, it was legally insufficient to show probable cause.

As already mentioned, the officer encountered appellee and another man at 1:00 A.M. at 12th and Callowhill Streets, in a heavy rain, carrying an electric typewriter inside a plastic trash bag. When the officer got out of his patrol car, the two men stopped walking and put the typewriter down. N.T. 8. It would be an overstatement to describe this as “an effort by the suspect[s] to disassociate [themselves] from the object upon approach of the police,” LaFave, supra, but it was nevertheless equivocal action tending in that direction.

When the men pointed to the pile of plastic trash bags where they said they had found the typewriter, the officer observed that the trash bags in the pile were all green (or black), but the bag the typewriter was in was black (or green) (the officer was positive that the bags were different in color but he didn’t remember which color was which). N.T. 9, 13-14.

The side of the trash bag the typewriter was in was “opened,” “slitted from the side,” N.T. 12, and the officer could see the “whole side of the typewriter,” N.T. 13. Although it was raining hard, the typewriter was dry. N.T. 13. “It looked in good condition to [the officer] and it looked fairly new.” N.T. 10. “[T]here was paper in the roller, typewriter paper, that had been ripped.” Id.

In these circumstances, the men’s statement that they had found the typewriter in the trash was “an implausible explanation.” LaFave, supra. A much more plausible explanation of the circumstances was that the men had stolen the typewriter.

In the first place, assuming that the typewriter was broken, it is unlikely that it would be thrown out with the trash; probably it would have been turned in against the cost of a new typewriter. The nature of the property therefore was inconsistent with the men’s explanation to the officer. The same may be said of the manner and circumstances of possession. For if the typewriter had been thrown out with the trash, one would expect it to be in the same color bag as was the rest of the trash. Also, the typewriter would almost certainly have been wet, for it would have been lying on the trash pile for some time (it was 1:00 a.m. when the officer encountered the men), and rain would have fallen through the slit in the bag. And finally, the fact that paper was still in the roller suggested that the typewriter had been taken from someone’s desk.

It is of course true that the Commonwealth had the burden of proving probable cause by a preponderance of the evidence, Pa.R.Crim.P. 323(h); Commonwealth v. Williams, 298 Pa.Super. 466, 444 A.2d 1278 (1982), but we are satisfied that the Commonwealth met its burden. The test is not whether the officer was right in his belief that the men had stolen the typewriter, but only whether he was probably right, and while one can imagine an innocent sequence of events that would be consistent with all that the officer saw, it takes some doing.

Bridge players are familiar with the principle involved. If the declarer needs only one favorable distribution of the cards, the chance of making the contract may be very good. But as the number of favorable distributions needed increases — a King in one hand; a Queen in the other; an even division of trumps; a Jack guarded only twice — the chance of making the contract becomes remote. So here, the officer was entitled to conclude that the chance of the men’s explanation being true was remote, for before it could be true, several events, each one unlikely, would all have had to occur. And if it wasn’t true that the men had found the typewriter in the trash, it was highly probable that they had stolen it.

The force of this conclusion is not diminished by the facts, relied upon by the lower court, that no burglary or theft had been reported and that the officer found no place that appeared to have been broken into. The theft had probably occurred about 1:00 a.m., when the officer encountered the men, for as the typewriter wasn’t wet, it couldn’t have been outside very long. At that hour, the owner probably hadn’t yet learned of the theft. As for no break-in being found: the officer was only able to “check [an area] [a]bout two blocks in each direction.” N.T. 9.

The order of the lower court is reversed, and the case is remanded for trial.


author: WICKERSHAM, Judge:

text:
    459 A.2d 1280
    COMMONWEALTH of Pennsylvania v. Haywood WILKERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 14, 1982.
    Filed April 29, 1983.
    Petition for Allowance of Appeal Denied Aug. 23, 1983.

      Cavanaugh, J., concurred in result.

      Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CAVANAUGH, WICKERSHAM and MONTEMURO, JJ.
   WICKERSHAM, Judge:

This procedurally tangled case arises out of Haywood Wilkerson’s challenge to his conviction of voluntary manslaughter and other offenses. On March 4, 1978, Wilkerson was arrested and charged with criminal homicide, aggravated assault, attempted murder and unlawful carrying of a firearm. The case against Wilkerson was tried to the Honorable William W. Caldwell and a jury; he was found guilty of voluntary manslaughter, carrying a firearm without a license and aggravated assault.

No post-trial motions were filed on Wilkerson’s behalf and on August 24, 1978, Wilkerson was sentenced to an aggregate term of ten to twenty years imprisonment. Wilkerson filed a pro se petition for modification of sentence nunc pro tunc; this petition was denied on September 21, 1978. Next, Wilkerson filed a pro se petition under the Post Conviction Hearing Act. Counsel was appointed for Wilkerson and counsel’s amended PCHA petition was denied without a hearing. From this decision an appeal was taken to the Pennsylvania Supreme Court, the case is Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980).

In an opinion by then Chief Justice Eagen the court reversed and remanded. The court noted that Wilkerson’s claim for post conviction relief was based on alleged ineffectiveness of trial counsel; the allegations of ineffectiveness included counsel’s failure to file post-verdict motions and an appeal. The denial of PCHA relief was reversed because trial counsel failed to protect Wilkerson’s appeal rights and because Wilkerson’s allegations of ineffectiveness required a hearing.

On November 25, 1980, Wilkerson’s nunc pro tunc motions for a new trial and in arrest of judgment were filed. A hearing on post-trial motions was held on February 5, 1981 before Judge Caldwell. Testimony was taken at the hearing from trial counsel and Wilkerson concerning counsel’s conduct of the trial and post-trial proceedings.

Judge Caldwell denied Wilkerson’s post-trial motions on March 26, 1981 and reinstated Wilkerson’s original sentence. Wilkerson filed a timely notice of appeal.

The facts underlying Wilkerson’s convictions may be summarized as follows. At trial, an officer of the Harrisburg Police Department testified that on March 4, 1978 he responded to a call and found two victims of a shooting; the victims were Robert Bruton and Neil Bruton. Haywood Wilkerson was taken into custody and given Miranda warnings. Despite being warned of his right to remain silent, Wilkerson told the police that he shot the two victims after he had been struck in the face. The officer further testified that he went to the hospital with the victims and that the victims had no weapons of any kind. Neil Bruton died at the hospital although Robert Bruton survived his wounds.

According to the testimony of an eyewitness to the events, Haywood Wilkerson shot the Brutons in the course of an argument over a small debt Wilkerson owed Robert Bruton. The witness stated that Wilkerson turned, walked four feet away, turned around again and fired a gun at the Brutons. Another witness testified that Robert Bruton cursed Wilkerson and slapped him in the face twice. Robert Bruton said that he slapped Wilkerson once.

Haywood Wilkerson took the stand and gave evidence on his own behalf. Wilkerson told the jury that he shot the Brutons after Robert Bruton slapped him twice. Wilkerson believed that the Brutons were going to strike him again. Another eyewitness to the events said that the three men (Wilkerson and the Brutons) appeared to be fighting.

All of Wilkerson’s contentions on this appeal are couched in terms of the ineffectiveness of trial counsel. Accordingly, we will reiterate the standard of review employed in ineffectiveness cases before addressing Wilkerson’s specific claims. The applicable standard of review was recently summarized in Commonwealth v. McKnight, 311 Pa.Super. 460, 457 A.2d 1272 (1983):

This court, in determining whether a criminal defendant was afforded effective assistance of counsel, will make an independent review of the record, Commonwealth v. Stadler, 262 Pa.Super. 166, 396 A.2d 697 (1978), and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Gray, 297 Pa.Super. 123, 443 A.2d 330 (1982). Counsel will be deemed effective if this court determines that the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, supra; Commonwealth v. Johnson, 280 Pa.Super. 309, 421 A.2d 737 (1980). However, it is only when the claim is of arguable merit that we must make an inquiry into the basis for counsel’s decision not to pursue the matter. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Id., 311 Pa.Superior at 464-65, 457 A.2d at 1275.

With the above stated principles in mind we consider whether Wilkerson was denied effective assistance of counsel because trial counsel did not file a motion to suppress statements Wilkerson made to the police. Wilkerson argues that any waiver of Miranda rights was invalid and that trial counsel should have filed a suppression motion.

At the time of Wilkerson’s trial the rule on Miranda waiver was explained by Justice Manderino’s plurality opinion in Commonwealth v. Walker, 470 Pa. 534, 368 A.2d 1284 (1977). Under the guidance provided by Walker the question was whether a defendant’s waiver of Miranda rights was a product of a free and uncoerced decision and whether the waiver was knowing and intelligent. Wilkerson now contends that no testimony was taken about the circumstances surrounding his statements and that he was agitated and possibly intoxicated when the statements were made.

A review of the trial transcript indicates that there was testimony as to Wilkerson’s condition when he was given his Miranda rights. A Harrisburg police officer testified that Wilkerson was apprehended walking away from the crime scene and ordered into a police car where his rights were explained to him. Wilkerson then said that he had shot the victims and that he would shoot again if he were hit. The officer also stated that Wilkerson was excited and angry but in control of his faculties. Wilkerson himself testified that he was not drunk on the morning of the crime.

Examination of the record shows that Wilkerson freely spoke to the police. There is no indication that the police overbore Wilkerson’s will: a police officer testified that Wilkerson was cooperative from the moment the police approached him and that Wilkerson admitted that he was the man the police were looking for. Further, Wilkerson’s trial counsel testified that Wilkerson told him that he understood what the policeman was saying to him and that he spoke anyway.

Our conclusion that trial counsel was not ineffective for failing to file a suppression motion is strengthened by the fact that at trial, Wilkerson himself testified to essentially the same facts he told the police. Wilkerson told the police officers that he shot the Brutons after one of them struck him; Wilkerson told the jury that he shot the Brutons after one of them struck him. It has been held that when a defendant repeats prior statements at his trial, any error is rendered harmless beyond a reasonable doubt. See e.g. Commonwealth v. Saunders, 459 Pa. 677, 331 A.2d 193 (1975); Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148 (1979).

Wilkerson next argues that trial counsel was ineffective for failing to move for sequestration of the Commonwealth’s witnesses. Without citing authority, Wilkerson asserts that trial counsel had an obligation to move for sequestration, which should be requested whenever there is the possibility that witnesses will adjust their testimony to ensure consistency.'

We will not hold that counsel is automatically ineffective in not moving for sequestration. Trial counsel testified that he did in fact consider such a motion but decided, after listening to the witnesses at a preliminary hearing, that they had not nor would they mold their testimony. Trial counsel had a transcript of the preliminary hearing available at trial and was prepared to impeach the witnesses if they changed their story. Moreover, the witnesses confirmed Wilkerson’s version of events, i.e., that Wilkerson shot the Brutons only after being struck. A motion for sequestration was not necessary in this case and trial counsel was not ineffective for failing to make such a motion.

Wilkerson contends that his trial counsel was ineffective for failing to object to mention of the fact that he had been in jail just before the shootings. Wilkerson concedes that the Commonwealth did not intentionally elicit the testimony about his incarceration and that the initial reference to incarceration was only arguably prejudicial. Trial counsel for Wilkerson did not object to the remark until later in the trial, when a cautionary instruction was given to the jury.

Under the circumstances of this case, trial counsel was not ineffective. Wilkerson admits that the remark was only arguably prejudicial and was elicited inadvertently. An appropriate instruction was given to the jury and Wilkerson explained that he was not in jail for a violent crime. Moreover, the evidence against Wilkerson was overwhelming and he admitted that he shot both of the victims. The mere mention that Wilkerson had been in jail for a nonviolent offense could not possibly have prejudiced the jury in this case.

Wilkerson argues that trial counsel should have investigated whether the police aggravated Robert Bruton’s injuries by moving him before an ambulance came to the scene. There is absolutely no merit to this contention.

Further, Wilkerson asserts that trial counsel gave ineffective assistance by waiving a charge on involuntary manslaughter. The trial court offered to charge the jury on involuntary manslaughter and counsel declined the charge. Counsel later explained that he felt the case was one for acquittal by reason of self-defense and that he did not want to get a compromise verdict. We cannot say that this strategy had no reasonable grounds in protecting Wilkerson’s interest. If the jury found that Wilkerson acted in self-defense, he would have been acquitted altogether, certainly a more desirable outcome to him than a conviction of involuntary manslaughter.

Wilkerson believes that his trial counsel was ineffective for failing to object to the court’s statement to the jury that there was no dispute that Wilkerson was illegally carrying a firearm and that Bruton suffered a serious bodily injury. We have read the court’s thoughtful and thorough charge to the jury and believe that there was no error in the instructions given.

The learned trial judge did not, as Wilkerson suggests, usurp the fact-finding function of the jury. Wilkerson did not, in fact, argue that he was entitled to carry a firearm on a public street in Harrisburg. Nor did Wilkerson argue that the injuries suffered by Robert Bruton were trivial; he could not very well make such an argument when his defense was that he shot Robert Bruton to save his own life. On this point the trial judge said “I don’t think it would be seriously disputed by the defense that the injuries suffered by Mr. Bruton were serious bodily injuries, although, as I emphasize, this is for you to determine.” Record, 7/26/78 at 94 (emphasis added). There was no error in this charge, thus, counsel was not obliged to object to it.

Wilkerson believes that counsel should have objected to the court’s instruction to the jury on the firearms charge. The record amply demonstrates that Wilkerson was carrying a concealed weapon for which he had no permit. In any event, the firearms charge was certainly the least of Wilkerson’s legal difficulties, because Wilkerson was also charged with murder and attempted murder. Counsel could, therefore, endeavor to protect his credibility with the jury, and concentrate the court’s attention, by objecting only to parts of the charge directly bearing on the more serious offenses with which his client was charged.

Finally, Wilkerson argues that counsel was ineffective for failing to request a presentence report. It is not per se ineffectiveness for counsel to fail to request a presentence report where, as here, the court is familiar with the defendant and heard evidence which might tend to mitigate the offense, i.e., that Wilkerson had had some drinks before the incident and that Wilkerson did not start the argument which led to the fatal shooting.

Order affirmed.

CAVANAUGH, J., concurs in the result.