author:
CIRILLO, Judge:
     McEWEN, Judge, SPAETH, President Judge,

text:
    499 A.2d 381
    COMMONWEALTH of Pennsylvania v. Anna HOLLINGSWORTH, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1984.
    Filed Sept. 20, 1985.

      Nicholas J. Caniglia, Wayne, for appellant.
    Helen Kane, Assistant District Attorney, Media, for Commonwealth, appellee.

      Before SPAETH, President Judge, and CAVANAUGH, WIEAND, McEWEN, CIRILLO, DEL SOLE, JOHNSON, POPOVICH and CERCONE , JJ.

       Judge CERCONE did not participate in the final disposition of this case.

   CIRILLO, Judge:

This case raises an issue concerning the Commonwealth’s burden of proof on a petition for an extension of time to commence trial under Pennsylvania’s speedy trial rule, Pa. R.Crim.P. 1100.

The appellant, Anna Hollingsworth, was tried by jury and convicted of maintaining lotteries and premises for illegal gambling, 18 Pa.C.S. §§ 5512, 5513. On appeal to this Court, a divided three-judge panel held that the Commonwealth had failed to prove its entitlement to an extension under Rule 1100(c), and therefore that the defendant’s right to a speedy trial had been violated; the panel ordered the defendant discharged. The Commonwealth petitioned for reargument, which the Court en banc granted. We now affirm the judgment entered in the trial court.

A criminal complaint against Hollingsworth was filed on November 12, 1980. Under Rule 1100(a)(2), the 180-day rule, the Commonwealth therefore had until May 11, 1981 to bring the defendant to trial. On April 9, 1981, the Commonwealth filed an application under Rule 1100(c) to extend time for commencement of trial, alleging seven grounds in support of its request. A hearing was set for May 11, the Rule 1100 run date. On that day, the Commonwealth amended its petition to include as a reason for the extension that: “On May 11, 1981 the Commonwealth’s expert witness will be unavailable for a period of 2 weeks due to his attendance at Drug Enforcement School sponsored by the Department of Justice.” At the hearing, the attorney for the Commonwealth stated:

I was also informed, Your Honor, last week that one of the Commonwealth’s necessary witnesses, in the event the case did go to jury trial today, is unavailable for the next two weeks because he is involved in drug enforcement school sponsored by the Department of Justice.
... In light of the fact that Sergeant Conway is unavailable as a Commonwealth witness today, I filed an amendment to the Petition setting forth the reasons why we are asking for the extension and I would hand that to the Court, a copy of which [sic] has already been presented to Mr. Breen.

Mr. Breen (the defendant’s attorney) responded to the Commonwealth’s presentation as follows:

It would be our position that the District Attorney’s Office has not exercised due diligence in trying to bring this case to trial to this date____
Our position is, Your Honor, that a mere assertion that due diligence was exercised is insufficient to allow for the granting of extension of time. If there was a showing, more extensive showing, that this case could not have been brought before the Court, then possibly our position would alter, but I don’t believe on the face of what the District Attorney has presented today that an extension has been shown to be necessary.

Neither party offered testimony in support of its position. At the conclusion of the hearing, the court granted an extension through July 6, 1981 “because of the unavailability of Commonwealth witnesses [sic]”.

We must now determine whether the court properly granted the extension without requiring actual testimony as to the absence of the Commonwealth’s witness.

In reviewing the propriety of an extension order, this Court is guided by our Supreme Court’s pronouncement in Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349-50 (1976):

Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

At issue is the first requirement under Mayfield, namely the “due diligence” of the prosecution.

The burden of proving prosecutorial due diligence rests on the Commonwealth under the standard set out in Commonwealth v. Ehredt, 485 Pa. 191, 194, 195-96, 401 A.2d 358, 360-61 (1979):

The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c). Cf. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Furthermore, in reviewing a hearing court’s ruling that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Mitchell, supra.
Although the preponderance standard is the least burdensome standard of proof known to the law, Commonwealth v. Mitchell, supra, a bare statement by the Commonwealth’s attorney that several witnesses are “unavailable,” without more, does not establish “due diligence” within that standard. While the unavailability of a witness may be a relevant factor in determining whether an extension should be granted, see Commonwealth v. Brown, 252 Pa.Super. 365, 381 A.2d 961 (1977), “[m]ere assertions of due diligence and unproven facts, do not establish cause for an extension under Rule 1100(c).” Commonwealth v. Antonuccio, 257 Pa.Super. 535, 537, 390 A.2d 1366, 1367 (1978).

(Footnotes omitted).

Relying on Ehredt and its progeny, appellant submits that the district attorney’s representation at the extension hearing that a necessary witness would be absent for two weeks was a “bare statement” and “mere unproven assertion,” so that the Commonwealth failed to carry its burden of making a “record showing” of its entitlement to a Rule 1100 extension.

Insofar as appellant’s argument can be distilled to the claim that the Commonwealth had to support its “mere assertion” of witness availability with actual testimony, we believe she is missing an important qualification to the general rule of Ehredt: strict standards of proof apply only to facts which are legitimately in dispute. A formal presentation of “evidence” under the Ehredt standard was required only if the defendant actually challenged the factual accuracy of the district attorney’s report that the witness was unavoidably absent. It is apparent from the record that the defendant did not contest this fact, but rather contended generally that the allegations advanced by the Commonwealth were insufficient as a matter of law to prove due diligence. Insofar as this is the argument advanced on appeal, it is plainly meritless.

In reaching our conclusion, we have extensively reviewed and considered our own prior decisions interpreting the evidentiary requirements of Rule 1100(c). However, first and foremost, the polestar in our decision of this case has been the dictates of our Supreme Court in Commonwealth v. Genovese, 493 Pa. 65, 69-70, 72, 425 A.2d 367, 369-70, 371 (1981):

Rule 1100 “serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,” Commonwealth v. Brocklehurst, 491 Pa. 151, 153-54, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197, n. 4, 409 A.2d 308, n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system____

See also Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983).

In applying these pronouncements to the case before us, two things clearly stand out: first, there was no attempt on the part of the Commonwealth to evade the 180-day mandate of Rule 1100; and second, on the contrary, it is obvious that the Commonwealth’s good faith efforts to try the defendant within the appropriate period were frustrated at the last minute by the unanticipated absence of a principal witness.

In its original application for the extension, the Commonwealth recited seven allegations to support a finding that it had proceeded with due diligence to try this case before the run date: (1) the defendant was arrested on 11/12/80 and applied for public defender representation; the public defender was appointed to represent the defendant and several co-defendants for a preliminary hearing on 11/24/80; (2) the defendant was arraigned on 12/12/80 after appearing late for arraignment on 12/11/80; (3) due to conflicts of interest in public defender representation the court appointed John Breen as counsel for the defendant on 1/30/81; (4) new counsel filed a petition for leave to file pre-trial motions nunc pro tunc and the petition was granted 2/12/81; (5) pre-trial motions were heard 3/23/81 with a decision on the motions held in abeyance; (6) when the case was called for jury trial on 3/30/81 counsel advised the court that the defendant was in the hospital and wouldn’t be available till later that week; due to higher priority matters the case was carried over to the next week; (7) on 4/6/81 the court continued the trial to 5/11/81 because of higher priority matters that had to be tried first and because the defendant had to appear in another courtroom to have a governor’s warrant from the State of Delaware served on her. Of course, the Commonwealth’s allegation of these facts in its petition did not immediately establish them as true. However, we note that despite the passage of a month’s time between receipt of this application and the Rule 1100 hearing, the defendant filed no answer of record denying the truth or relevance of any of the Commonwealth’s allegations.

On the May 11 hearing date (also the run date and scheduled trial date), the Commonwealth supplemented its petition with the new allegation that it had recently learned that Sergeant Conway, a necessary witness for the prosecution, would be attending drug enforcement school and hence would be unavailable for the next two weeks. The amendment to the petition also set forth that the Commonwealth had requested no prior continuances or extensions in the case. Of course, up to that time the defendant had not had an opportunity to deny these latest allegations. However, the hearing itself was her chance to do so, and our searching review of the record of that hearing fails to reveal any point at which the defendant or her attorney questioned the factual validity of the Commonwealth’s claim that the Sergeant was attending drug school and would be unavailable for two weeks. Instead, the defense attorney for the first time attacked some of the allegations contained in the original extension application. Specifically, he disavowed any knowledge of a prior conflict in defense representation, and denied the existence of any defense delay in the case except for “one day” , when Hollingsworth was hospitalized and unable to come to trial. Nowhere did the defense make any comment on the absence of the Commonwealth’s witness. After concluding brief statements on the Commonwealth’s allegations, the attorneys for the Commonwealth and defense simply put forth their respective legal conclusions on whether the allegations were sufficient to establish due diligence. The court then found due diligence based on witness unavailability and granted the extension to 7/6/81, certifying that as the earliest date consistent with court business, with a “satisfactory backup” for a trial date of June 29.

It is well settled that an extension under Rule 1100(c) is properly granted where delay in the commencement of trial is caused by the unavailability of a witness resulting through no fault of the Commonwealth. Commonwealth v. Lafty, 333 Pa.Super. 428, 482 A.2d 643 (1984) (en banc); Commonwealth v. Bright, 303 Pa.Super. 98, 449 A.2d 596 (1982); Commonwealth v. Thompson, 292 Pa.Super. 108, 436 A.2d 1028 (1981). When witnesses become unavailable toward the end of the Rule 1100 time period— whether through vacation, illness, or other reasons not within the Commonwealth’s control — the Commonwealth is prevented from commencing trial within the requisite period despite its due diligence and an extension of time is warranted. Commonwealth v. Donaldson, 334 Pa.Super. 473, 483 A.2d 549 (1984) (en banc) (allocatur granted); Lafty, supra; Bright, supra; Commonwealth v. Sharp, 287 Pa. Super. 314, 430 A.2d 302 (1981) (allocatur denied). Additionally, we have recognized that defense-caused delays may realistically obstruct diligent efforts by the Commonwealth to try an accused within the 180-day period, and therefore may help to justify a Rule 1100(c) extension. Commonwealth v. Selig, 317 Pa.Super. 533, 464 A.2d 450 (1983); Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983) ; Bright, supra; Commonwealth v. Hill, 290 Pa.Super. 399, 434 A.2d 813 (1981); Commonwealth v. Brant, 272 Pa.Super. 135, 414 A.2d 707 (1979) (allocatur denied); Commonwealth v. Brown, 252 Pa.Super. 365, 381 A.2d 961 (1977). The fact that a pre-trial defense motion remains outstanding on or near the run date also is a relevant factor in considering the Commonwealth’s due diligence. See Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984) ; see also Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). We have also determined that in seeking an extension the Commonwealth need not prove its due diligence throughout the entire 180-day period; rather, the relevant inquiry is whether the Commonwealth demonstrates due diligence at the last listing before the run date at which the defendant could not be brought to trial. Commonwealth v. Burke, 344 Pa.Super. 288, 496 A.2d 799 (1985) ; Bulling; see Commonwealth v. Suggs, 289 Pa.Super. 44, 432 A.2d 1042 (1981) (last criminal term of court); see also Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984) (court acts incorrectly in separately metering each step in the pre-trial process against the due diligence standard); Commonwealth v. Jones, 314 Pa.Super. 515, 461 A.2d 276 (1983) (Opinion by Wieand, J.) (Rule 1100 does not require trial in something less than 180 days).

Given that all the factors just mentioned could be found to exist in this case, it is clear that the Commonwealth was entitled to the extension it sought if we accept at face value the allegations in its petition, especially those concerning Sergeant Conway’s absence.

Following Ehredt, our Court has held that bald assertions of witness unavailability do not suffice, and that the Commonwealth must generally provide evidence of the facts supporting its request for an extension. See Commonwealth v. Kite, 321 Pa.Super. 411, 468 A.2d 775 (1983); Commonwealth v. Gilliam, 302 Pa.Super. 50, 448 A.2d 89 (1982); Commonwealth v. Delpiano, 290 Pa.Super. 510, 434 A.2d 1260 (1981); Commonwealth v. Hill, supra; Commonwealth v. McNeill, 274 Pa.Super. 257, 418 A.2d 394 (1980); Commonwealth v. Jackson, 269 Pa.Super. 249, 409 A.2d 873 (1979); see also Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983); Commonwealth v. Antonuccio, supra. However, as the current President Judge of this Court prophetically observed in Jackson, supra, “It is possible that the rules of evidence will not be strictly enforced at a Rule 1100 hearing as they are at trial.” 269 Pa.Super. at 253 n. 5, 409 A.2d at 875 n. 5 (Opinion by Spaeth, J.). This view of the less-than-exacting evidentiary requirements of the Rule has proven to be well-founded. A particular example of this phenomenon has surfaced time and again in our case law, and responding to it in numerous decisions this Court has held that a finding of due diligence may be based entirely on judicial notice taken by the hearing court of facts contained in uncontested notations in court records. Commonwealth v. Bradford, 339 Pa.Super. 215, 488 A.2d 628 (1985) (detective’s illness as a cause of continuance established by uncontested notation in record); Commonwealth v. Lafty, supra (extension granted based solely on uncontested notations that complaining witness unavailable on two prior occasions); Commonwealth v. Bulling, supra (notation from prior listing that “Arresting officer ill” sufficient to justify second extension); Commonwealth v. Kite, supra (extension properly based on notations from four prior listings that continuances necessitated by co-defendants or their counsel); Commonwealth v. Lewis, 319 Pa.Super. 33, 465 A.2d 1038 (1983) (court took judicial notice of reasons for various continuances) (Popovich, J., dissented on ground notations were not uncontested); Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983) (en banc) (court properly took judicial notice of uncontested notations in finding prosecution diligent at prior listings); Commonwealth v. Bright, supra (Opinion by Wieand, J.) (court relied on notations made at prior listings that complainant and arresting officer on vacation); Commonwealth v. Postell, 280 Pa.Super. 550, 421 A.2d 1069 (1980) (court properly relied on court records to establish reasons for prior continuances); see also Jackson, supra (judicial notice of court scheduling difficulties).

Applying the reasoning of these cases to the present situation, we discern no rational basis for distinguishing between a finding of due diligence based on uncontested notations in court records, and a finding of due diligence based on uncontroverted assertions made by the Commonwealth at the Rule 1100 hearing or in its application for the extension.

Where the court takes judicial notice of a notation from a prior listing, it is simply relying on an entry made by the judge at that listing that a continuance or other delay occurred for a particular reason — for example, because of the illness of a witness. At no point does the court take testimony to verify that the witness was in fact ill. See Bradford, supra. However, absent a challenge to the veracity of the facts recited in the notation, the hearing court may presume that the reasons for the prior continuance were as given therein. See id. As Judge Cavanaugh stated in Kite, “These are facts of record not mere unproven assertions.” 321 Pa.Super. at 417, 468 A.2d at 778 (footnote deleted). Thus, if in this case the Commonwealth had relied exclusively on a court notation to establish Hollingsworth’s absence on 3/30/81 and the reasons therefor, those facts would be conclusively proven for purposes of the Rule 1100 hearing, unless the defendant pressed the issue by alleging their falsity.

Similarly, as to the facts which the court actually relied on in granting the extension in this case, there was no testimony, only the good faith assertion of the Commonwealth’s attorney that Sergeant Conway was unavailable due to his attendance at drug enforcement school. Had the district attorney made the same representation at a prior listing and a continuance then been granted, Sergeant Conway’s unavailability would appear in the record as the reason for the continuance, and under our case law there would be no question that the hearing court could properly take judicial notice of the prior notation in finding due diligence. See, e.g., Bright, supra. Obviously, then, it makes no practical difference whether the hearing court gleans its facts from the uncontested second-hand written notations of a judge, or the uncontested oral statements of a district attorney; in either case the representation of witness unavailability can be given credence, not because it is substantiated by testimony, but because there is no allegation from the defendant’s side that it is not true. Compare Donaldson, supra (contested notations in district attorney’s file incompetent to prove trial listed for earliest date consistent with court’s business) with Commonwealth v. Dancy, 317 Pa.Super. 578, 464 A.2d 473 (1983) (per McEwen, J.) (uncontested testimony by district attorney sufficient to prove same).

In determining that appellant never sought to challenge the veracity of the Commonwealth’s crucial allegations, we have relied principally on the fact that appellant did not at the Rule 1100 hearing — and she does not now — maintain that the reasons given for Sergeant Conway’s absence were spurious, or that he was in fact available for trial. Rather, her opposition to the extension request then and now amounts to nothing more than a general denial that due diligence was exercised. In effect, she has chosen to meet the Commonwealth’s concrete offer of proof with a “bald assertion” of her own. Defense counsel’s statement at the extension hearing — that “a mere assertion that due diligence was exercised is insufficient to allow for the granting of extension of time” — may be sound as an abstract proposition of law, but it was completely inadequate to inform the court or prosecutor that the defendant was contesting the Commonwealth’s specific factual allegations. Indeed, the statement was no more helpful in framing the factual issues before the court than if counsel had simply announced that the court could not grant a Rule 1100 extension in the absence of due diligence on the part of the prosecution. If Hollingsworth seriously wished to test the truth or accuracy of the Commonwealth’s specific assertion that Sergeant Conway was unavailable owing to his attendance at drug school, then she promptly should have demanded proof and put the district attorney on notice that that fact was indeed in dispute. The district attorney then could have met this challenge by placing herself or a knowledgeable member of the prosecutorial team on the stand to testify to the facts surrounding Sergeant Conway’s absence and his importance to the prosecution’s case. Had this been done, clearly appellant’s present attack on the sufficiency of the grounds for the extension would be baseless. Cf Dancy, supra (extension properly based on district attorney’s testimony that bad weather caused witness’s absence on trial date).

Just as we do not allow the prosecutor to rely on a pro forma incantation of the phrase “due diligence,” see Antonuccio, supra, neither can the defendant simply deny “due diligence” generally and expect to prevail when the Commonwealth has offered specific facts to support such a finding. The interests at stake in a Rule 1100 proceeding are far too important to case the onus of both detailed allegation and evidentiary proof on the Commonwealth, while permitting the defendant to remain silent about which if any specific allegations are in issue. We need not go far outside the record of the present case to recognize that in some of our more populous counties Rule 1100 hearings are held at the rate of many per day, and that most of these hearings must be “short and to the point.” See Jackson, supra, 269 Pa.Super. at 253, 409 A.2d at 875 (Spaeth, J.). To require the Commonwealth to come to each one of these hearings armed with witnesses prepared to testify on every conceivable point bearing on its due diligence, while allowing the defendant to put every fact in issue with a broad denial, would be to allocate the risks and burdens of the Rule 1100 question in a way that is manifestly out of line with the public’s need for vigorous and certain law enforcement.

An acknowledgement of the fundamental realities inherent in the Rule 1100 hearing procedure has led this Court steadily toward requiring more of the defendant than a general denial of due diligence. In Lafty, supra, this Court en banc treated a general objection to a finding of due diligence as insufficient to controvert the factual accuracy of the specific matters relied on by the hearing court in making its finding. In Harris, supra, the Honorable Stephen J. McEwen, Jr., again speaking for a Court en banc, upheld a finding of due diligence based on uncontested notations in the court records despite the defendant’s general denials of the Commonwealth’s allegations:

The court records in this case reveal that it is beyond dispute that the Commonwealth had exercised due diligence through July 13, 1979, when the case was called for trial before Judge Shiomos, since none of the three continuances through that date were chargeable to the Commonwealth, a fact noted by Judge Blake at the hearing of August 2, 1979. We note that the Commonwealth alleged with regard to that issue, in its petition to extend filed July 17, 1979, that the prosecution had been ready to proceed on the occasion of the three earlier scheduled trial dates and that these allegations were generally denied in the answer of appellant to that petition. We note, as well, that counsel for appellant did not question the specific representation of the Commonwealth, at the extension hearing of August 2, 1979, that it had been ready to proceed to trial on each of the three earlier scheduled trial dates, but, instead, merely expressed a general assertion that the Commonwealth had failed to establish the exercise of due diligence in bringing appellant to trial.

315 Pa.Super. at 552, 462 A.2d at 729-30 (footnote omitted); see also Kite, supra, 321 Pa.Super. at 417 n. 4, 468 A.2d at 778 n. 4 (“The record in this matter indicates that Judge Hirsh thoroughly reviewed the notations on the Quarter Sessions file in granting the Commonwealth’s extension. Furthermore, we have determined that there was no actu al controversy regarding the accuracy of the mentioned notations based upon the text of the extension hearing.”) (emphasis added).

In the Ehredt case itself, our Supreme Court ventured: “If a written application were to make factual allegations which an answer thereto admitted, no evidence to prove the allegations would be necessary and the sole issue would be whether the allegations established due diligence.” 485 Pa. at 196 n. 8, 401 A.2d at 361 n. 8. Accord, Jackson, supra. As President Judge Spaeth further noted in Lafty, supra, “The purpose of filing an answer is to put the Commonwealth to its proof.” 333 Pa.Super. at 441, 482 A.2d at 649 (Spaeth, P.J., concurring).

When no answer is filed and the defendant also fails to attend the extension hearing or otherwise contest the Commonwealth’s petition, he waives the issue of the propriety of the extension. See Commonwealth v. Taylor, 473 Pa. 400, 374 A.2d 1274 (1977) (failure to attend hearing despite notification); Commonwealth v. Cullen, 340 Pa.Super. 233, 489 A.2d 929 (1985) (petition for allocatur filed) (same); Commonwealth v. Bulling, supra (failure to move orally or in writing for dismissal in opposition to Commonwealth’s fourth extension request); Commonwealth v. McFadden, 300 Pa.Super. 299, 446 A.2d 624 (1982) (failure to move for dismissal or contest petition); Commonwealth v. Goldwire, 279 Pa.Super. 451, 421 A.2d 286 (1980) (no answer filed; defense attorney went to hearing but didn’t contest petition); Commonwealth v. Wilson, 258 Pa.Super. 231, 392 A.2d 769 (1978) (propriety of extension waived where defendant did not contest extension petition sufficient on its face). Thus,

[the defendant] must either file a motion under Rule 1100(f) or contest the Commonwealth’s petition to extend, so that by one method or the other the facts and issues come before the court. Otherwise, his Rule 1100 claim will be waived. See Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978); Commonwealth v. Wallace, 475 Pa. 27, 379 A.2d 558 (1977).

Commonwealth v. Davis, 261 Pa.Super. 204, 208, 395 A.2d 1388, 1390 (1978) (Spaeth, J.) (emphasis added); see also Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983) (strategic failure to object to continuance beyond run date resulted in waiver of Rule 1100); Commonwealth v. Crowley, supra (where defense counsel fails to object to 1100(c) extension, defendant will not be discharged after trial unless underlying constitutional right to speedy trial denied); Commonwealth v. Guldin, 502 Pa. 66, 463 A.2d 1011 (1983) (acquiescence in purported extension beneficial to defendant was excludable as continuance time under 1100(d)); Commonwealth v. Fisher, 334 Pa.Super. 449, 483 A.2d 537 (1984) (Cirillo, J.) (similar); Commonwealth v. Bankston, 332 Pa.Super. 393, 481 A.2d 672 (1984) (Johnson, J.) (defendant waives finding excluding time under 1100(d) where he doesn’t contest it at extension hearing); Dancy, supra (McEwen, J.) (specific contention that prosecution should have transported victim to trial rejected where defendant did not raise it at hearing); Commonwealth v. Warren, 313 Pa.Super. 390, 459 A.2d 1285 (1983) (Johnson, J.) (abandonment of motion to dismiss at 1100(c) hearing waived issue of propriety of extension); Commonwealth v. Royer, 256 Pa. Super. 361, 389 A.2d 1165 (1978) (late filing of extension petition waived where not raised by defendant); Commonwealth v. Flores, 247 Pa.Super. 140, 371 A.2d 1366 (1977) (defendant admits unavailability despite due diligence where he does not raise issue at hearing on motion to dismiss); cf. Comment to Rule 1100 (“where the defendant, by his attorney, does not contest the motion a hearing need not be held”).

By logically extending the rationale infusing these authorities, we are compelled to a logically consistent result in the present case: that is, where the defendant files no answer to an extension petition and does not contest the specific facts cited in the petition, but instead rests on his general denial that the Commonwealth has exercised due diligence, the specific factual allegations made by the Commonwealth, if believed by the court, must be deemed admitted, and the only question then remaining is whether those allegations amount to due diligence as a matter of law. See Lafty, supra; Harris, supra; see also Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985) (Court upheld extension based in part on Commonwealth averments of readiness and defense unavailability, with no mention of formal evidence as to those facts); Commonwealth v. Reihart, 302 Pa.Super. 515, 449 A.2d 35 (1982) (similar); cf. Kite, supra; Dancy, supra; Davis, supra.

We will not go so far as to impose an affirmative duty on a defendant to file a formal answer to an extension petition. See Pa.R.Crim.P. 308(a), 42 Pa.C.S.A. Appendix (1983) (current version at Pa.R.Crim.P. 9021). Nevertheless, since appellant filed no answer to the Commonwealth’s application, nor did she otherwise cause an issue of fact to be joined regarding the specifics of Sergeant Conway’s unavailability, no need arose for the Commonwealth to present testimony on this issue. It would be the height of “strained and illogical judicial construction” were we to discharge this defendant simply because the Commonwealth failed to have a witness mount the stand, be sworn, and provide formal testimony to establish a fact that no one even questioned.

We hold that appellant’s general denial of due diligence admitted all well pleaded facts which appellant did not specifically deny and the court accepted as true, and preserved only the issue whether the uncontroverted facts were sufficient to show due diligence as a matter of law. Cf. Ehredt, supra. On the pure issue of law presented, we hold that the Sergeant’s unexpected absence at drug school on the 180th day was sufficient to show that trial could not commence within the 180-day period despite due diligence on the part of the Commonwealth. Cf. Commonwealth v. Tann, 298 Pa.Super. 505, 444 A.2d 1297 (1982) (extension proper where victim failed to appear for trial because of high school exam); Commonwealth v. Sharp, supra (extension proper where complaining witness was at aunt’s funeral in Maryland on trial date); Commonwealth v. Jackson, supra (extension proper where defense counsel’s vacation left Commonwealth with one day to get case into courtroom). Accordingly, we uphold the trial court’s decision to grant the Commonwealth an extension of time to July 6, 1981. Cf Commonwealth v. Delpiano, supra (Commonwealth failed to respond to defense request for testimony on feasibility of rescheduling trial, or defense allegation that prosecution knew in advance of police vacations; held, Commonwealth’s second and third extensions improperly granted); Commonwealth v. Freeman, 280 Pa. Super. 462, 421 A.2d 814 (1980) (Commonwealth failed to present evidence on its allegations despite defendant’s specific denials and demands for proof; extension improper).

Appellant Hollingsworth also challenges a second extension granted to the Commonwealth from July 6 to September 9, 1981, the date trial actually commenced. The prosecutor had submitted an application for the second extension in open court on July 2, alleging: “Case was listed for trial on June 29, 1981 but case of Comm. vs. Armand Rossi, was called to trial which was a felony [sic] and had priority in the discretion of the trial Judge. Due to the scheduling of court cases and backlog, the instant case was unable to be reached, although the Commonwealth was prepared to proceed to trial.” Since the defendant had not been given sufficient time to respond to the application, the court granted a continuance and set a rule returnable on the petition for July 27, 1981. On July 23 the defendant filed an answer and motion for discharge under Rule 1100(f), responding to the Commonwealth’s allegation as follows: “Denied. Had the Commonwealth exercised due diligence the case could have been tried. If the case is of such a low priority it should be declared to be diminimus [sic] and dismissed.”

The extension hearing was not held on the 27th of July as planned because defense counsel had fallen seriously ill. On September 3, 1981, the Commonwealth moved to amend its July 2 extension application to allege that trial had been continued from July 28 to August 31 due to counsel’s “sudden and serious” illness; that the court was unable to reach the case on August 31 due to the number of cases assigned to its docket, with the instant case therefore being placed on backup status for the week; and that when the case was finally called on September 3 “the Commonwealth’s key witness, Police Officer Joseph Bail, who had been available earlier in the week and all prior listings is now away on vacation.” The prosecutor also orally alleged readiness at all prior listings, and requested that the Rule 1100 period be extended to the next available trial date.

The court took the motion under advisement and on September 9, 1981 heard testimony from Officer Bail regarding his absence from work and subsequent return. The court thereupon granted the Commonwealth an extension based on witness unavailability, and the case went to trial that very day. As for the allegation contained in the July extension petition,m the court noted, “To the extent that has not been disposed of it is now.” As the trial judge later explained in his opinion denying post-trial motions, he could not hear the case before July 6 as scheduled because he was engaged in jury trials involving a serious rape and burglary, and he took judicial notice that the case had been listed for the earliest possible trial date consistent with “the standards of the American Bar Association concerning the seriousness of the crime, the incarceration of the Defendant and the time having expired.”

A trial judge’s certification that he was unable to reach a case because of his overcrowded docket may supply sufficient grounds for an extension. See Commonwealth v. Suggs, supra; Commonwealth v. Zirkle, 251 Pa.Super. 214, 380 A.2d 454 (1977); see also Mayfield, supra; Commonwealth v. Cimaszewski, 261 Pa.Super. 39, 395 A.2d 931 (1978). “[A] record which reflects the inability of the assigned trial judge to hear the case is sufficient to support a finding of due diligence.” Suggs 289 Pa.Super. at 55, 432 A.2d at 1047 (emphasis added); see also Commonwealth v. Kollock, 246 Pa.Super. 16, 369 A.2d 787 (1977); Standards for Criminal Justice 12-1.2(b) (1982) (recommending practice of individual dockets for each judge). To the extent that Commonwealth v. Weber 256 Pa.Super. 483, 390 A.2d 206 (1978), suggests that the Commonwealth in every case must demonstrate that another judge could not have heard the case before the run date, we disapprove it as contrary to the recent pronouncements of our Supreme Court in Commonwealth v. Crowley, supra. Crowley eschewed a rigid requirement that common pleas courts continually arrange and rearrange their schedules to accommodate the 180-day rule, particularly in urban areas with severely crowded court dockets. According to the Court in Crowley, it is enough for a court to establish that it has devoted a reasonable amount of its resources to the criminal docket and that it scheduled the defendant’s criminal trial at the earliest possible date consistent with the court’s business. See also Commonwealth v. Bolden, 336 Pa.Super. 243, 485 A.2d 785 (1984).

Turning to the specific factors which the trial judge enumerated as influencing his decision to grant the second extension, this Court has explicitly approved such considerations in holding that Rule 1100 does not require cases to be tried strictly according to priority of age. See Suggs, supra; see also Commonwealth v. Kuhn, 327 Pa. Super. 72, 75 n. 1, 475 A.2d 103, 104 n. 1 (1984) (plurality opinion); Commonwealth v. Fairley, 298 Pa.Super. 236, 444 A.2d 748 (1982) (Opinion by Popovich, J., joined by Spaeth and Montgomery, JJ.) (administrative policy gave low priority to drunk driving cases; held, extension properly based on court backlog); cf. Standards for Criminal Justice 12-1.1 & Commentary, cited with approval in May-field, supra; but cf. Commonwealth v. Bytheway 290 Pa.Super. 148, 434 A.2d 173 (1981). Here, the trial judge’s technique of taking, in effect, judicial notice of the factors he considered in managing the criminal cases on his docket, together with the uncontested averments in the Commonwealth’s extension petition and amendments thereto, provided sufficient evidence of unavoidable court delay and prosecutorial due diligence for the period July 6 through September 9. See Jackson, supra (upholding extension based on judicial notice taken in trial court opinion of court backlog and scheduling procedures); accord Selig, supra; Commonwealth v. Metzger, 249 Pa.Super. 107, 375 A.2d 781 (1977) (Spaeth, J., concurring); see also Bradford, supra; Bolden, supra; Bulling, supra; Kollock, supra. Additionally, we note that the unavailability of the defendant’s attorney on the trial date set in late July, and the resulting delay when the case was placed on backup for August 31 and then not reached, constituted grounds for an exclusion of time from the speedy trial calculation under Rule 1100(d). See Commonwealth v. Robinson, 498 Pa. 379, 446 A.2d 895 (1982); Commonwealth v. Chapman, 271 Pa.Super. 473, 414 A.2d 352 (1979); see also Commonwealth v. Manley, 503 Pa. 482, 469 A.2d 1042 (1983); Commonwealth v. Gorham, 341 Pa.Super. 499, 491 A.2d 1368 (1985) (Spaeth, P.J.). Given the intervening circumstance of defense counsel’s illness, we are further convinced that the total length of the extension granted was as limited as reasonably possible considering the press of court business, thus satisfying the Mayfield standard. See Commonwealth v. Gibson, 248 Pa.Super. 348, 375 A.2d 132 (1977); Commonwealth v. Gilliam, supra (Cirillo, J. concurring).

In a claim related to this same period of time, however, appellant complains that the delay of over two months between the filing of the Commonwealth’s petition and the hearing held on September 9 prejudiced her defense, so that she should be discharged under the rationale of Commonwealth v. Prillerman 260 Pa.Super. 211, 393 A.2d 1228 (1978) (per curiam) (alternative holding). However, we find this case in no way comparable to Prillerman, in which the hearing court without explanation held the Commonwealth’s extension application in abeyance for seven months. Here much of the pre-hearing delay was attributable to the illness of defense counsel, and a good deal of the remainder of it was accounted for by the reasonable time allowed by the court for the defendant to respond to the Commonwealth’s petition. The delay was satisfactorily explained, and the record fails to reveal how the two-month delay could have prejudiced the defendant in any appreciable degree. Hence, appellant is not entitled to be discharged. See Commonwealth v. Jorden, 333 Pa.Super. 291, 482 A.2d 573 (1984); see also Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983); Commonwealth v. Williams, 310 Pa.Super. 501, 456 A.2d 1047 (1983); but cf. Commonwealth v. Simon, 283 Pa.Super. 203, 423 A.2d 1060 (1981) (discharging defendant where delay unexplained) (alternate holding).

Finally, appellant raises several claims of trial court error in refusing to suppress the evidence against her obtained through a search of her home. We decline to address these claims due to the substantial failure of appellant’s brief to comply with Pa.R.A.P. 2117(c) and 2119(c).

Judgment affirmed.

McEWEN, J., files a concurring opinion.

SPAETH, President Judge, files a dissenting opinion in which WIEAND and DEL SOLE, JJ., join.

CERCONE, J., did not participate in the final disposition of this case.

McEWEN, Judge,

concurring:

Since I have concluded that the eminent Judge Clement J. McGovern properly granted the application for an extension upon which the court conducted a hearing on May 11, 1981, I would affirm the judgment of sentence. I am unable to do so, however, in the clear, certain fashion of my learned colleagues who also affirm. In fact, the differing expression of view of our distinguished colleague President Judge Edmund B. Spaeth is quite persuasive and should serve as an instruction to the prosecution that it should in the future provide a more fervent presentation of good cause. The assistant district attorney here only supplied to the court a quite minimal assertion and not only failed to present any evidence but also neglected to supply in the assertion any specific information concerning the educational program at which the police officer who was the principal Commonwealth witness would be a participant. Even if the statements of the police officer to the prosecutor concerning the seminar satisfied the prosecutor, the assistant district attorney should have been aware that the hearing judge was entitled to more data, such as, for example, the proximity of the school to the situs of the trial. The hearing court might then have been able to structure arrangements for the appearance and testimony of the police officer without interruption of his training classes. Nonetheless, I am unable to conclude that it was error for the court to grant the extension.

Since the remaining assertions of appellant lack merit, I would affirm the judgment of sentence.

SPAETH, President Judge,

dissenting:

The majority excuses the Commonwealth from proving its allegations supporting a petition to extend under Rule 1100 because appellant did not contest any specific facts averred. I dissent because I find no authority for the proposition that the Commonwealth can dispense with its burden of proving due diligence when a defendant challenges it to prove its allegations.

The criminal complaint charging appellant with maintaining illegal lotteries and gambling devices was filed on November 12, 1980. The run date under Rule 1100 was therefore May 11, 1981. Pa.R.Crim.P. 1100(a)(2). The case was listed for trial on March 30, 1981, but because of various delays, was relisted for trial on May 11, 1981. On April 8, 1981, the Commonwealth filed an application for an extension, which was heard on May 11, 1981. At the hearing, the Commonwealth amended its application to add the following as a reason why the application should be granted:

(8) On May 11, 1981 the Commonwealth’s expert witness will be unavailable for a period of 2 weeks due to his attendance at Drug Enforcement School sponsored by the Department of Justice. The Commonwealth has not requested any prior continuances, nor has a previous [e]xtention [u]nder Rule 1100 been granted.

The assistant district attorney offered no evidence in support of this allegation, merely reciting it. N.T. 5/11/81, at 2. Defense counsel responded by saying:

Our position is, Your Honor, that a mere assertion that due diligence was exercised is insufficient to allow for the granting of extension of time. If there was a showing, more extensive showing, that this case could not have been brought before the Court, then possibly our position would alter, but I don’t believe on the face of what the District Attorney has presented today that an extension has been shown to be necessary. Id. at 5.

The trial court asked the assistant district attorney, “Do you wish to present anything further?”, to which she replied:

No, I believe that the allegations as set forth in the Petition along with my amendment would be sufficient. Id.

The trial court then granted an extension to July 6, 1981, explaining that it did so “because of the unavailability of Commonwealth witnesses [sic].” Id. The court did not consider, or base its order on, the other allegations in the Commonwealth’s application. The case was later continued to September 9, 1981, when trial began. The jury found appellant guilty as charged, and this appeal is from the ensuing judgment of sentence.

Appellant argues that the trial court improperly granted the Commonwealth’s application to extend the time for commencement of trial on May 11, 1981. Under Rule 1100, the trial court may grant such an application “only on findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.” Pa.R.Crim.P. 1100(c)(3). In Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979), the Supreme Court stated:

The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the ¡requirements of Rule 1100(c). Cf. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Furthermore, in reviewing a hearing court’s ruling that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Mitchell, supra.
Although the preponderance standard is the least burdensome standard of proof known to the law, Commonwealth v. Mitchell, supra, a bare statement by the Commonwealth’s attorney that several witnesses are “unavailable,” without more, does not establish “due diligence” within that standard. While the unavailability of a witness may be a relevant factor in determining whether an extension should be granted, see Commonwealth v. Brown, 252 Pa.Super. 365, 381 A.2d 961 (1977), “[m]ere assertions of due diligence and unproven facts, do not establish cause for an extension under Rule 1100(c).” Commonwealth v. Antonuccio, [257] Pa.Super. [535], [537], 390 A.2d 1366, 1367 (1978).
Id,., 485 Pa. at 191, 195-96, 401 A.2d 358, 360-61 (footnotes omitted).

See Commonwealth v. Lafty, 333 Pa.Super. 428, 434, 482 A.2d 643, 646 (1984) (en banc); Commonwealth v. Jackson, 269 Pa.Super. 249, 252, 409 A.2d 873, 874 (1979). And see Commonwealth v. Abridge, 492 Pa. 90, 422 A.2d 487 (1980) (Commonwealth did not sustain its burden where it presented no evidence at hearing to support its application for an extension); Commonwealth v. Delpiano, 290 Pa.Super. 510, 434 A.2d 1260 (1981) (same); Commonwealth v. Hill, 290 Pa.Super. 399, 434 A.2d 813 (1981) (same); Commonwealth v. Thompson, 285 Pa.Super. 155, 426 A.2d 1188 (1981) (same); Commonwealth v. McNeill, 274 Pa.Super. 257, 418 A.2d 394 (1980) (same); Commonwealth v. Brant, 272 Pa.Super. 135, 414 A.2d 707 (1979) (same).

The Commonwealth’s application for an extension should not have been granted. No evidence, of any sort, was offered in support of the allegation that “the Commonwealth’s expert witness will be unavailable for a period of 2 weeks due to his attendance at Drug Enforcement School.....” Although appellant did not contest the facts contained in the allegation, appellant did, in the very language of Commonwealth v. Ehredt, supra, argue that the Commonwealth’s “mere assertion” was insufficient to support the application. The Commonwealth was put on notice that appellant was not excusing it from the necessity of introducing evidence in support of its application. The assistant district attorney simply refused to carry the Commonwealth’s burden when, misstating the law, she responded “that the allegations ... [were] sufficient.”

I should vacate judgments of sentence and discharge appellant.

WIEAND and DEL SOLE, JJ., join.

       The task of preparing an opinion announcing the judgment of the Court devolved upon this writer on May 20, 1985.

      . I should not consider whether the record is sufficient to permit a finding that these delays were excludable under Rule 1100(d), for the trial court made no such finding and the Commonwealth does not argue that the delays were excludable, instead arguing only that the trial court properly found under Rule 1100(c) that trial “could not be commenced within the prescribed period despite due diligence by the Commonwealth____” Brief for Commonwealth at 3.

      . See note 1, supra.

      . Given my disposition of this issue, I should not reach appellant's other arguments.

      . Neither Commonwealth v. Reihart, 302 Pa.Super. 515, 449 A.2d 35 (1982), nor Commonwealth v. Thompson, 292 Pa.Super. 108, 436 A.2d 1028 (1981), are necessarily inconsistent with this conclusion. The opinions in both cases fail to indicate whether there was a hearing on the application to extend, and, if so, whether any testimony was offered in support of the Commonwealth’s allegations of the unavailability or whether the record contained other evidence in support of the Commonwealth’s allegations. However, to the extent that Reihart and Thompson imply that allegations of witness unavailability unsupported by evidence may be sufficient to establish due diligence, they are contrary to established principles.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    499 A.2d 581
    Marion H. TORCHIA, guardian on Behalf of Robin Ann TORCHIA, Debra Torchia and Mark Torchia, Appellees, v. Kathleen M. TORCHIA, Appellant.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed Aug. 9, 1985.
    Reargument Denied Oct. 22, 1985.

      Raymond, J. Quaglia, Philadelphia, for appellant.
    E. Chandler Hosmer, III, Philadelphia, for appellees.
    Before WIEAND, WATKINS and GEISZ, JJ.

       The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WIEAND, Judge:

If, pursuant to a postnuptial property settlement agreement, a father promises to maintain his three children as beneficiaries of his life insurance policy, may the children recover the proceeds of the policy from the deceased husband’s second wife who, without fault on her part, was named beneficiary of the policy in violation of the agreement? The trial court concluded that the second wife had been unjustly enriched and decreed that she should pay the proceeds of the policy to the decedent’s children by his first marriage. The widow appealed. We affirm.

Marion Torchia and Joseph Torchia were married on May 1, 1964. They were divorced in 1979. As part of a written property settlement agreement on February 9, 1979, Joseph Torchia promised to “maintain his (three) children as beneficiaries of all insurance policies that he presently owns.” On March 5, 1979, Torchia named his three children as beneficiaries on two policies of insurance maintained at his place of employment. He subsequently remarried and soon thereafter changed the beneficiary on the two policies, naming his second wife, Kathleen M. Torchia, as primary beneficiary and his children as contingent beneficiaries. Joseph Torchia died on November 5, 1982. His widow was paid $44,000.00 as named beneficiary of the two aforesaid policies. Marion Torchia, as parent and guardian for her minor children, commenced an action in equity against Kathleen Torchia to recover the sum of $44,000.00 paid to her by the insurance company. The trial court, after hearing, decreed that the guardian was entitled to recover the sum of $44,000.00, plus interest. Exceptions were dismissed, and a final decree was entered. This appeal followed.

The findings of a chancellor, affirmed by the court en banc, have the effect of a jury verdict and may not be reversed unless a review of the record reveals that they are unsupported by the evidence or are predicated upon erroneous inferences and deductions or errors of law. Biglan v. Biglan, 330 Pa.Super. 512, 517, 479 A.2d 1021, 1024 (1984). See also: Presbytery of Beaver-Butler v. Middlesex Presbysterian Church, 507 Pa. 255, 263, 489 A.2d 1317, 1323 (1985).

To sustain a claim of unjust enrichment, a claimant must show that the party against whom recovery is sought either “wrongfully secured or passively received a benefit that it would be unconscionable for her to retain.” Roman Mosaic & Tile Co. v. Vollrath, 226 Pa.Super. 215, 218, 313 A.2d 305, 307 (1973). “In order to recover, there must be both (1) an enrichment, and (2) an injustice resulting if recovery for the enrichment is denied.” Samuels v. Hendricks, 300 Pa.Super. 11, 14-15, 445 A.2d 1273, 1275 (1982) (emphasis in original), quoting Meehan v. Cheltenham Township, 410 Pa. 446, 449, 189 A.2d 593, 595 (1963). “[A] showing of knowledge or wrongful intent on the part of the benefited party is not necessary in order to show unjust enrichment. Rather, the focus is on the resultant unjust enrichment^] not on the party’s intention.” Crossgates Realty, Inc. v. Moore, 279 Pa.Super. 247, 252, 420 A.2d 1125, 1128 (1980).

The decisions in most jurisdictions have recognized that a contract not to change the beneficiary of a policy of life insurance, entered into by an insured and his designated beneficiary for a valuable consideration, is binding as between the insured, or his volunteer, and the contractually determined beneficiary and will be enforced in equity. In Hundertmark v. Hundertmark, 372 Pa. 138, 93 A.2d 856 (1952), a husband had promised as part of a postnuptial property settlement agreement not to change the beneficiary on a life insurance policy to anyone other than his wife unless the wife should remarry. The husband subsequently remarried and thereupon named his second wife as beneficiary “without any inducement by [the second wife].” Id., 372 Pa. at 140, 93 A.2d at 857. When the insured died, his first wife commenced an action in equity in the nature of a bill of interpleader against the widow and the insurance company to determine who was entitled to receive the proceeds. The chancellor awarded the proceeds, which had been paid into court, to the widow. The Supreme Court reversed. The Court said:

“The law appertaining to the equitable assignment of the benefits of an insurance policy is well settled in this state. There is no doubt that a beneficiary named pursuant to a definite agreement that he shall be so named, by virtue of a valuable consideration moving from him, acquires a right in the policy or the proceeds thereof that will be protected against subsequently named beneficiaries who have no superior equity____”

Id., 372 Pa. at 143, 93 A.2d at 859, quoting Visnik v. Manee, 326 Pa. 399, 402, 191 A. 127, 129 (1937). The widow, the Court held, was merely a “volunteer,” and she did not have an equity that was superior to that of the first wife who was contractually an irrevocable beneficiary for value. It made no difference, the Court added, that the insurance company had paid the proceeds into court; the result would have been the same if the company had already paid the proceeds to the designated beneficiary. Id., 372 Pa. at 145-146, 93 A.2d at 860. See also: The Supreme Lodge, Knights and Ladies of Honor v. Ulanowsky, 246 Pa. 591, 92 A. 711 (1914). Compare: Gershman v. Metropolitan Life Insurance Co., 405 Pa. 585, 176 A.2d 435 (1962) (agreement to make children sole beneficiaries of life insurance policy, entered into without lawful consideration, could not be enforced in equity against named beneficiary).

Other jurisdictions have reached the same result. See: 5 Couch, Cyclopedia of Insurance Law § 28:41 (2d ed.1984). Most courts have concluded that a promise, made as part of a separation agreement, to maintain a policy of insurance designating either spouse or children as beneficiaries vests in such spouse or children an equitable interest in the policy which is superior to that of a stranger to the agreement who was subsequently named gratuitously as beneficiary. Thus, in Markwica v. Davis, 64 N.Y.2d 38, 484 N.Y.S.2d 522, 473 N.E.2d 750 (1984), where the decedent’s second wife had been named beneficiary in contravention of a prior separation agreement, the Court of Appeals of New York said:

Defendant, having furnished no consideration for the receipt of the proceeds of the life insurance policy, has received a gratuitous benefit and would be unjustly enriched in the eyes of the law were she to retain those proceeds against the claims of the children for breach by their father of his agreement to continue them as beneficiaries of the policy. That the children might also have a breach of contract claim against their father’s estate is of no moment so far as the liability of defendant to the children is concerned____

Id. at 41, 484 N.Y.S.2d at 524, 473 N.E.2d at 752 (citations omitted). To the same effect are Rogers v. Rogers, 63 N.Y.2d 582, 483 N.Y.S.2d 976, 473 N.E.2d 226 (1984) and Simonds v. Simonds, 45 N.Y.2d 233, 408 N.Y.S 2d 359, 380 N.E.2d 189 (1978). See also: Williams v. Williams, 276 Ala. 43, 158 So.2d 901 (1963); Lock v. Lock, 8 Ariz.App. 138, 444 P.2d 163 (1968); Orsini v. Commercial National Bank, 6 Ark.App. 166, 639 S.W.2d 516 (1982); Mutual Life Ins. Co. v. Franck, 9 Cal.App.2d 528, 50 P.2d 480 (1935); Kulmacz v. New York Life Insurance Co., 39 Conn.Supp. 470, 466 A.2d 808 (1983); Myers v. Myers, 408 A.2d 279 (Del.1979); Reeves v. Reeves, 236 Ga. 209, 223 S.E.2d 112 (1976); Appelman v. Appelman, 87 Ill.App.3d 749, 43 Ill. Dec. 199, 410 N.E.2d 199 (1980); Green v. Green, 13 Mass. App. 340, 433 N.E.2d 92 (1982); General American Life Insurance Co. v. Rogers, 539 S.W.2d 693 (Mo.Ct.App.1976); McKissick v. McKissick, 93 Nev. 139, 560 P.2d 1366 (1977); Hirsch v. Travelers Insurance Co., 134 NJ.Super. 466, 341 A.2d 691 (1975); In re Estate of Lemer, 306 N.W.2d 244 (S.D.1981); Herrington v. Boatright, 633 S.W.2d 781 (Tenn. Ct.App.1982); Gutierrez v. Madero, 564 S.W.2d 185 (Tex. Civ.App.1978); Travelers Insurance Co. v. Blanchard, 139 Vt. 559, 433 A.2d 296 (1981). Accord: Great American Reserve Insurance Co. v. Maxwell, 38 Colo.App. 305, 555 P.2d 988 (1976); Holmes v. Holmes, 463 So.2d 578 (Fla.Dist. Ct.App.1985); Johnson v. Hartford Insurance Group, 99 Idaho 134, 136 n. 2, 578 P.2d 676, 678 n.2 (1978); Borotka v. Boulay, 268 Md. 244, 299 A.2d 803 (1973); Barden v. Metropolitan Life Insurance Co., 41 N.C.App. 135, 254 S.E.2d 271 (1979); Madsen v. Estate of Moffitt, 542 P.2d 187 (Utah 1975); Kirk v. Jacobson, 85 Wash.2d 85, 530 P.2d 643 (1975); Peckham v. Metropolitan Life Insurance Co., 415 F.2d 312 (10th Cir.1969) (applying Kansas law).

These authorities are determinative of the issue in this case. Joseph Torchia, the deceased owner of the policy, had promised for legally adequate consideration to maintain two policies of insurance on his life and name his children as beneficiaries thereof. The children’s rights were superior to those of appellant, who was a mere volunteer. Even though the widow was a passive and innocent party, her rights were subordinate. It would have been unjust to allow her to retain the proceeds of the policy in preference to the children.

Appellant argues, however, that appellee’s children are not entitled, as third party beneficiaries, to enforce their contractual rights against her because she was not a party to the contract. This misconceives the nature of the action which the children asserted and which the court enforced. The children’s cause of action was not founded on a contractual duty which appellant owed; it was based, rather, on the equitable interest in the proceeds of the policy which had been vested in the children by their father’s agreement.

Appellant also argues that the trial court erred in denying a motion to amend her answer to permit her to allege that the first wife had committed a prior breach of the postnuptial agreement. The record, however, is inadequate to permit appellate review of this issue. No written motion to amend was ever presented, and the trial record does not disclose that an oral motion to amend was made. There is, consequently, no disclosure at any place in this record of the factual averments which appellant wished to add to her answer other than the bald conclusion that the agreement between the decedent and his first wife had been breached by the first wife. This is inadequate. We are unable from the record to ascertain the precise nature of the amendment which appellant wished to offer. See: Coyne v. Porter-Hayden Co., 286 Pa.Super. 1, 7, 428 A.2d 208, 210 (1981).

The trial transcript does reflect a statement by appellant’s counsel that he orally requested leave to amend his answer during an unrecorded, pre-trial conference and that his request was denied because it had been untimely, i.e., the case had already been called for trial. Even so, the record does not disclose the factual averment which appellant intended to add via an amended answer. Where, as here, there is no basis for concluding that facts existed which would have changed the result, we will not find an abuse of discretion by the trial court which refused, after the case had been called for trial, to grant an untimely request for the court to consider a possible amendment to the answer. See: Cucinotti v. Ortmann, 399 Pa. 26, 159 A.2d 216 (1960).

Appellant contends finally that the trial court erred in failing to allow her a credit for debts which she incurred in caring for the decedent during his last illness and in arranging for his burial. Her answer did not contain a counterclaim, and a claim for these expenses was not made at trial. A possible credit was asserted for the first time via exceptions to the court’s adjudication and decree nisi. Where, as here, the pleadings contain no counterclaim and there has been neither a request to amend nor evidence to support a credit for services separately rendered, the claim will not thereafter be considered. Cf. Jackson v. Richards 5 & 10 Inc., 289 Pa.Super. 455, 433 A.2d 888 (1981). Moreover, a claim for medical and funeral expenses would have been more properly asserted against the decedent’s estate. The children were not liable for such services and did not become liable merely because they acquired an equitable interest in and to the proceeds of policies of insurance written on the life of their deceased father.

It is unfortunate that of several deserving persons, one must be denied benefits under these policies of insurance. The law, however, is clear. The rights of children contractually entitled to receive the proceeds of a policy of insurance on their father’s life are superior to those of a volunteer who was innocently, albeit gratuitously, named as beneficiary by their father in violation of his agreement.

Order affirmed.

      . Kathleen Torchia also received $19,000.00 as beneficiary of a policy of insurance which was not subject to the terms of the property settlement agreement executed by her deceased husband at the time of the divorce from his first wife.

      . It appears that the trial court was unaware of the decision in Hundertmark and the line of cases we have cited. Instead, the court relied upon decisions of this Court which have held that when an innocent party benefited from the wrongful act of another, he was thereby unjustly enriched if the victim of the wrongful act would have received that benefit but for the wrongful act of the third party. See: Zvonik v. Zvonik, 291 Pa.Super. 309, 435 A.2d 1236 (1981); Crossgates Realty, Inc. v. Moore, supra; Gee v. Eberle, 279 Pa.Super. 101, 420 A.2d 1050 (1980); Scott v. Purcell, 264 Pa.Super. 354, 399 A.2d 1088 (1979), aff'd on other grounds, 490 Pa. 109, 415 A.2d 56 (1980). In each of these cases, the facts are distinguishable from those in the instant case. Here, the evidence showed and the court found that the widow had been innocent of any wrongdoing. The issue in this case, therefore, concerns the rights of parties where all are innocent of wrongful conduct. This is not the same as where the party guilty of wrongful misconduct stands to benefit in some way from his wrong.


author: SPAETH, President Judge:

text:
    499 A.2d 585
    COMMONWEALTH of Pennsylvania v. Edward HIGGINS, Jr., Appellant. COMMONWEALTH of Pennsylvania v. Calvin WIGGINS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 11, 1985.
    Filed Aug. 16, 1985.
    Reargument Denied Oct. 24, 1985.
    Petition for Allowance of Appeal Denied Feb. 20, 1986,

      John J. Stanzione, Assistant Public Defender, West Chester, for appellant in No. 1236.
    Samuel C. Stretton, Philadelphia, for appellant in No. 1301.
    Stuart B. Suss, Assistant District Attorney, West Chester, for Com. appellee.
    Before SPAETH, President Judge, and JOHNSON and SHOYER, JJ.

       The Honorable KENDALL H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

   SPAETH, President Judge:

These are appeals from judgments of sentence for burglary, theft by unlawful taking, receiving stolen property, and criminal conspiracy. Appellants argue (1) that the suppression court erred in denying their motion to suppress, and (2) that the trial court erred in giving a “missing witness” charge to the jury. Appellant Higgins argues that the trial court erred (3) in not discharging him pursuant to Pa.R.Crim.P. 1100, and (4) in refusing to strike the panel after allegedly prejudicial remarks by the prosecutor. Appellant Wiggins argues (5) that trial counsel was ineffective in representing both him and appellant Higgins; that the trial court erred (6) in admitting opinion testimony; (7) in allowing into evidence allegedly prejudicial remarks by a witness and the prosecutor; (8) in giving an improper charge and making improper comments to the jury; and (9) that trial counsel was ineffective in not preserving arguments (6) through (8).

We shall discuss only the first of these nine arguments. Arguments (2) and (3) are without merit for the reasons expressed in the opinion of the trial court; argument (4) is without merit, see Commonwealth v. Nesbitt, 276 Pa.Super. 1, 10, 419 A.2d 64, 69 (1980); arguments (5) through (8) have been waived as they were neither raised at or before trial, and were not included either in post-trial motions or in the Statement of Matters Complained of on Appeal, which was requested by the trial court, see R. (Higgins) at 26; R. (Wiggins) at 11, 12, 21; Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983); Commonwealth v. Folino, 293 Pa.Super. 347, 439 A.2d 145 (1981); Pa.R.App.P. 1925(b). As regards appellant Wiggins’s claim that trial counsel was ineffective in not preserving arguments (5) through (8): Appellate counsel is not the same as trial counsel, and this appeal is his first opportunity to raise the ineffectiveness claim. It is therefore properly before us. However, argument (5) is without arguable merit; as the defenses of both appellants were entirely consistent, there was no potential harm to appellant Wig-gins from the dual representation, see Commonwealth v. Joyner, 489 Pa. 502, 506, 414 A.2d 1003, 1005 (1980); compare Commonwealth v. Evans, 306 Pa.Super. 25, 451 A.2d 1373 (1982), and trial counsel’s decision to proceed was made only after full consultation and colloquy. N.T. 12/14/82 at 7-13, 17; argument (6) is without arguable merit, see Commonwealth v. Bennett, 471 Pa. 419, 423-24, 370 A.2d 373, 375 (1977); Commonwealth v. Worrell, 277 Pa.Super. 386, 391-92, 419 A.2d 1199, 1201 (1980); and so are arguments (7) and (8), see Commonwealth v. Nesbitt, supra; Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978). Trial counsel was therefore not ineffective. See Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983).

On appellants’ first argument: We have concluded that the facts of record establish that the police legitimately stopped appellants’ truck in order to investigate their reasonable suspicion that it contained contraband, and that as a result of the investigation they had probable cause to conduct a warrantless search of the truck. We therefore conclude that there was no violation of appellants’ Fourth Amendment rights and that the suppression court did not err.

On June 20, 1983, Officer McClure of the Uwchlan Township, Chester County, Pennsylvania, police department investigated a complaint that titanium scrap metal had been stolen from the A. Johnson Company. The officer interviewed Irv Brown, an employee of the company, who told him that the titanium had been stolen between 5 and 9 a.m. that morning. Brown showed Officer McClure tire tracks leading from the sections of the yard where the titanium was stored to a gate, which had been tampered with, at the rear of the property. The size of the tracks and the treadmarks suggested to the officer that a large truck had been used in the theft. June 20 was a Sunday morning and the A. Johnson Company was closed for business, as were all others in the industrial park in which it was located. N.T. at 39-43.

The next Sunday morning, June 27, 1983, at 9:30 a.m., Officer McClure received a “suspicious vehicle” complaint over the police radio. The source of the complaint was Robert Keen, an employee of Packaging Gravure Company. When he had come to the plant to finish some work, he had seen appellants washing down a red stake body truck with Maryland plates in the company parking lot. It being a Sunday, Packaging Gravure was closed for business. N.T. at 26-27, 45-46, 52, 84. When appellants saw Keen, they moved the truck, and Keen saw a large stainless steel trough near where the rear end of the truck had been, with metal cooling pipes beside it. The trough was normally stored behind the plant, and Keen saw marks on the ground indicating that the trough had been dragged from behind the building to the truck, a distance of about thirty to forty feet. N.T. at 27-36.

On his way to investigate Keen’s complaint, Officer McClure drove past the parking lot of Road Machinery Company, about three-tenths of a mile from Packaging Gravure and in the same industrial park. He noticed a red stake body truck driving through the Road Machinery parking lot. The officer knew that Road Machinery was not then open for business. He radioed police headquarters to confirm the “suspicious vehicle” description that Keen had reported. By the time the officer received confirmation, at about 9:40 a.m., the truck had left the parking lot. He stopped it at the intersection of Rutgers Drive and Route 100 in order to investigate. N.T. at 44, 47-50, 52. Peering through the cracks in the panels of the body of the truck, he saw that it contained scrap metal. He then questioned appellant Higgins, who said that he was lost, and, upon request, produced identification. Appellant Wiggins could produce no identification. N.T. at 50-53, 58.

Officer McClure called for backup police to detain the truck, and after they arrived, at about 9:50 a.m., he went to Packaging Gravure, where Keen fully recounted the incident that had led him to file the complaint. The officer himself saw the marks indicating how far the steel trough had been moved. N.T. at 53-56. The officer then went immediately to A. Johnson Company, where he spoke with Irv Brown. At the officer’s request, Brown went to the detained truck and climbed over the back panel and into the freight compartment, where he found sheets of titanium that he identified as those stolen the preceding week from the Johnson Company. Officer McClure then arrested appellants and impounded the truck. N.T. at 56-61, 82-83.

The first issue presented by these facts is whether Officer McClure was entitled to stop and investigate appellants’ truck. On this issue, we find the recent decision in United States v. Sharpe, 470 U.S. —, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), dispositive. The facts there were as follows. An agent of the Drug Enforcement Agency, on patrol on a coastal road in North Carolina, noticed a pickup truck, with an enclosed camper shell attached, followed closely by a Pontiac. The agent saw that the rear of the truck was “riding low” and did not sway when the truck passed over bumps. The agent concluded that the truck was heavily loaded, and after following it for about twenty miles, he decided to stop and investigate it. The agent radioed for and received backup assistance, and he and the police pursued the pickup truck and the Pontiac at high speed. The agent stopped the Pontiac; the truck sped ahead but was caught and stopped by the backup police about a half mile down the highway. Id. at - — -, 105 S.Ct. at 1570-71, 84 L.Ed.2d at 609-10. After asking for identification and questioning the driver of the Pontiac, the agent radioed for more police to detain the Pontiac. When they arrived, he went to the detained truck, reaching it about fifteen minutes after it had been stopped. He confirmed his suspicions that it was heavily loaded, and after twice being refused permission to search it, sniffed near the rear window and smelled marijuana. He then opened the rear of the truck, using keys that he removed from the ignition, and discovered a considerable quantity of marijuana. After arresting the driver of the truck, the agent returned to the Pontiac and arrested its driver. Some thirty to forty minutes had passed since the Pontiac had been stopped. Id. at —, 105 S.Ct. at 1571-1572, 84 L.Ed.2d at 610-611.

To evaluate whether the agent's stop of the Pontiac and pickup truck violated the Fourth Amendment, the Court applied the test stated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This test is that in evaluating an investigative stop, a court must first inquire whether “the officer's action was justified at its inception,” that is, whether it was based upon “specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion,” id. at 20, 21, 88 S.Ct. at 1879, 1880, and next, must inquire “whether [the intrusion] was reasonably related in scope to the circumstances which justified the interference in the first place,” id. at 20, 88 S.Ct. at 1879. The Court held that the length of a stop is but one factor to be considered in evaluating whether the scope of the intrusion was reasonable, and that “[i]n assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” 470 U.S. at —, 105 S.Ct. at 1575, 84 L.Ed.2d at 615-16. (citations omitted).

Applying this analysis here, we have no doubt that Officer McClure’s investigative stop was justified at its inception by his reasonable suspicion, based upon articulable facts, that appellants’ truck contained stolen scrap metal. The officer knew, or at least had reason to believe, that only one week earlier, scrap metal had been stolen by persons in a truck evidently similar to the truck he wished to stop and investigate, from a company in the same industrial park, at the same time — Sunday morning, when the companies in the park were closed. These facts were sufficient to suggest that the thefts were part of a pattern, and it would have been surprising if the officer, upon seeing the red stake body truck, had not suspected that he might have found the persons who had stolen metal from the Johnson company, and had apparently tried to steal metal from Packaging Gravure. Cf United States v. Hensley, 469 U.S. —, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (description on “wanted flyer” issued by neighboring police department held sufficient basis for investigative stop); United States v. Harris, 421 F.Supp. 121 (E.D.Pa.1976), affd 565 F.2d 153 (3rd Cir.1977), cert denied 434 U.S. 1072, 98 S.Ct. 1258, 55 L.Ed.2d 776 (1978) (Terry stop of tractor-trailer on small country road justified on basis of officer’s knowledge that it was highly unusual for commercial vehicle to travel on such a road late at night); Commonwealth v. Lawrence, 311 Pa.Super. 326, 457 A.2d 909 (1983) {Terry stop justified where officer familiar with area knew that driver pulling out of driveway late at night did not live in residence nor own car he was driving).

We also have no doubt that the scope of the investigative stop of appellants’ truck was “reasonably related ... to the circumstances which justified the interference____” Terry v. Ohio, supra, 392 U.S., at 20, 88 S.Ct. at 1879. For the entire twenty to twenty-five minute period during which the truck was detained, Officer McClure “diligently pursued a means of investigation that was likely to confirm or dispel [his] suspicions quickly, ...” United States v. Sharpe, supra, 470 U.S., at —, 105 S.Ct. at 1575, 84 L.Ed.2d at 616. Once the officer had found, by peering through the cracks in the panels of the truck, that it contained scrap metal, the next step was to determine whether the metal had been stolen. To this end, after obtaining backup assistance to detain the truck, the officer spent the entire period of the stop conducting an investigation, first interviewing Keen, then interviewing Brown, and finally, bringing Brown to the detained truck. The investigative stop of the truck did not, therefore, violate appellant’s Fourth Amendment rights. See United States v. Sharpe, supra.

This conclusion, however, does not end our inquiry, for appellants argue that even if the investigative stop was proper, as we have just held it was, nevertheless Brown’s warrantless search of the freight compartment of their truck, at the request of Officer McClure, constituted an unreasonable search.

The Commonwealth argues that we ought not regard Brown’s action as a search; it contends that this conclusion follows from the following propositions:

1) No search takes place unless there has been an intrusion into an area in which there exists a reasonable expectation of privacy.
2) There is a diminished expectation of privacy in an automobile as compared to a home or a person.
3) There is no expectation of privacy with respect to those areas of the exterior of a vehicle that are exposed to plain view.
Brief for Commonwealth at 27.

We are not persuaded by this argument. In fact the freight compartment of the truck was not “exposed to plain view.” The truck was stopped on a public highway, where appellants had every right to be. Brown was unable to identify the titanium until he had climbed over the back panel and into the freight compartment. N.T. at 50, 82-83. Absent such an entry, the contents of the compartment were shielded from public view. Compare Commonwealth v. Grabowski, 306 Pa.Super. 483, 491, 452 A.2d 827, 831 (1982) (police view of vehicle identification number not search despite need to raise car on fork lift to view it, for “examination of the exterior of an automobile is not, for purposes of the Fourth Amendment, a ‘search’ ”); compare also Commonwealth v. Bosworth, 310 Pa.Super. 378, 456 A.2d 661 (1983) (where vehicle is parked in area posted against trespassing and keys have been left in trunk, defendant has lost reasonable expectation of privacy in contents of the trunk). Moreover, Brown’s search was state action within the Fourth Amendment, for in conducting it, he did not act as a private individual but as a surrogate of the police. See Commonwealth v. Dembo, 451 Pa. 1, 301 A.2d 689 (1973); Commonwealth v. Borecky, 277 Pa.Super. 244, 419 A.2d 753 (1980). We must therefore decide whether the warrantless search of appellant’s truck was justified.

“To justify a warrantless search of an automobile, [an] officer must have independent probable cause to believe that a felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle____” Commonwealth v. Ramsey, 259 Pa.Super. 240, 249, 393 A.2d 806, 811 (1978). See also Commonwealth v. Hargraves, 268 Pa.Super. 95, 98, 407 A.2d 454, 455 (1979) citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (“... a car may be searched or seized without a warrant if there are both exigent circumstances and probable cause to believe that the car will yield contraband or useful evidence for the prosecution of crime.”)

The probable cause necessary to conduct a warrantless search of a vehicle exists where “... the facts and circumstances within [the knowledge of the police], and of which they had reasonably trustworthy information, were sufficient in themselves to warrant a man of reasonable caution in the belief that [contraband] was being transported in the automobile [that] they stopped and searched.” Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). Probable cause for a warrantless search of a vehicle is distinct from probable cause to make an arrest: “The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” Id. at 158-59, 45 S.Ct. at 287. Moreover, “automobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.” Chambers v. Maroney, supra, 399 U.S., at 48, 90 S.Ct. at 1979, citing Carroll v. United States, supra. See also Commonwealth v. Stein, 303 Pa.Super. 336, 343, 449 A.2d 716, 719 (1982); Commonwealth v. Berman, 262 Pa.Super. 410, 414, 396 A.2d 1237, 1239 (1978). The basis of this rule is two-fold. First, there is “the diminished expectation of privacy which is accorded automobiles because of their open construction, their function, and their subjection to a myriad of state regulations.” Commonwealth v. Timko, 491 Pa. 32, 38, 417 A.2d 620, 623 (1980) citing United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). This is particularly true in the case of a commercial vehicle as opposed to a private automobile. See United States v. Harris, supra at 126. Second, and more important, is the fact that automobiles are highly mobile and therefore likely to flee the jurisdiction before a search warrant can be obtained. See Chambers v. Maroney, supra; Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). Thus the “exigent circumstances” that justify a warrantless search will be found “where the probable cause arises (1) in an unforeseen way and shortly before the opportunity for search, [and] (2) at a time when the automobile is mobile so that the opportunity for search is fleeting.” Commonwealth v. Maione, 227 Pa.Super. 239, 244, 324 A.2d 556, 559 (1974), citing Chambers v. Maroney, supra, 399 U.S., at 50-51, 90 S.Ct. at 1980-1981 (1970).

We have already discussed our conclusion that Officer McClure was justified in stopping appellants’ truck because he reasonably suspected it might contain stolen metal. As a result of the ensuing investigation, the officer’s reasonable suspicion was sufficiently confirmed so that he had probable cause to search — or to have Brown search — the freight compartment of the truck. This search could be conducted without a search warrant. Since the freight compartment was of open construction, and part of a commercial vehicle, appellants had a diminished expectation of privacy as to its contents. United States v. Harris, supra at 126. And since the officer came upon the truck unexpectedly, and at a time when it might leave the jurisdiction before he could obtain a search warrant, he was entitled to search it without a warrant. See Chambers v. Maroney, supra, 399 U.S., at 50-51, 90 S.Ct. at 1980-1981; Commonwealth v. Maione, supra.

Affirmed.

      . We might refuse to consider appellant Wiggins's arguments. His "Statement of Questions Presented" appears on pages 3 through 5 of his brief; the six questions, and five subquestions, there listed contain numerous citations to the record. Pa.R.App.P. 2116(a) provides in part:

        statement of Questions Involved
      (a) General Rule. The statement of the questions involved must state the question or questions in the briefest and most general terms, without names, dates, amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.
      In the interest of judicial economy, we shall consider Wiggins’s arguments; if we did not do so now, we should probably have to do so later, in an ineffectiveness proceeding, for while Wiggins’s counsel asked for and received leave to file a brief that exceeded our page limit, he could have no reasonable basis for his violation of Rule 2116(a).

      . Appellants were charged on six separate informations: Nos. 1358, 1360, 1482, 1483, 1521, and 1522, all of 1982. Three separate trials were held, at each of which appellants were codefendants: before Judge GAWTHROP on December 15, 1982 (Nos. 1482 and 1483); before Judge STIVELY on January 19, 1983 (Nos. 1358 and 1360); and before Judge SMITH on January 12-13, 1983 (Nos. 1521 and 1522). The judgments of sentence imposed on Nos. 1521 and 1522 are the subject of this appeal. However, appellants each filed one omnibus pretrial motion to suppress evidence relevant in all three trials. A hearing was held on the motions before Judge GAWTHROP on December 14, 1982. The transcript of this hearing is part of the record transmitted to us. Also part of this record is a computerized docket entry indicating that Judge GAWTHROP denied the motions on December 15, 1982. Judge GAWTHROP’s opinion on the post-trial motions filed on Nos. 1482 and 1483 and the notes of testimony for the pre-trial proceedings on December 15, 1982, are not, however, part of this record. Appellant Wiggins has attached a copy of Judge GAWTHROP’s opinion and excerpts from the December 15 notes of testimony to his brief. From these, we note that the suppression court found as a fact that all the testimony heard on December 14, 1982, was "truthful", and concluded as a matter of law that "the enlarging knowledge, factual knowledge clearly elevated the case to being one of there being probable cause." Brief for Appellant Wiggins, Exhibit [c] at 2, 7.
      In reviewing the findings of a suppression court, we first determine whether the court’s findings of fact, here to be viewed in the light most favorable to the Commonwealth, are supported by the record. We next review whether the suppression court has erred in the conclusions of law it has drawn from these facts. See Commonwealth
        v. Jackson, 497 Pa. 591, 595, 442 A.2d 1098, 1100 (1982), quoting from Commonwealth v. Johnson, 467 Pa. 146, 151-52, 354 A.2d 886, 889 (1976); Commonwealth v. Webb, 491 Pa. 329, 421 A.2d 161 (1980). We may make these determinations based on the record transmitted to us. In the interest of judicial economy, therefore, we will not remand for completion of the record.

      . A stake body truck, as described by Officer McClure, whose testimony was illustrated by photographs marked Commonwealth’s Exhibit 2, is a four-wheeled vehicle somewhat larger than a pickup truck. The body of the truck is entirely enclosed by four panels, but the freight compartment is uncovered. N.T. at 46-47.