author: KELLY, Judge: FORD ELLIOTT, Judge, CAVANAUGH, Judge,

text:
    665 A.2d 1201
    COMMONWEALTH of Pennsylvania v. Samuel GLADDEN, Appellant.
    Superior Court of Pennsylvania.
    Argued July 12, 1995.
    Filed Sept. 26, 1995.

      Thomas E. Naughton, Philadelphia, for appellant.
    Anthony V. Pomeranz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, P.J., and CAVANAUGH, McEWEN, DEL SOLE, TAMILIA, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   KELLY, Judge:

In this opinion, we are called upon to determine primarily whether evidence of constructive possession and accomplice liability presented at trial is sufficient to support an appellant’s conviction of the crime of possession of an instrument of crime. We hold that evidence of constructive possession and accomplice liability is sufficient to support an appellant’s conviction of possession of an instrument of crime. Accordingly, we affirm.

The relevant facts and procedural background are as follows. In the early evening, on March 11, 1992, Charles Jenkins and Craig Williams went to a house located at 2950 N. Lawrence Street in Philadelphia carrying $3,000.00 in cash with which they intended to purchase crack cocaine. When Jenkins and Williams arrived at the front door of Cintron’s house, the appellant, Samuel Gladden, admitted them. Jenkins and Williams told the appellant what they were seeking. The appellant asked Jenkins where the money was; Jenkins displayed the $3,000.00. The appellant told Jenkins and Williams that the quantity of drugs that they wished to purchase was not available at that time. The appellant instructed them to leave and return later, implying that he would make the necessary arrangements to obtain the quantity and type of drugs that they required. After Jenkins and Williams left the house at 2950 N. Lawrence Street, the appellant went to the home of Luis Rosado at 2941 N. 4th Street. Rosado was present with his wife and a friend named “Heavy D”. The appellant knocked on the front door; Rosado answered, opening the door. The appellant asked Rosado “if [he] want to do a stick up to two black males from $3,000.00 cash.” (N.T. May 13, 1993 at 279). Rosado asked the appellant how he knew the males had the money. The appellant answered that they had showed it to him. Rosado refused the appellant’s request because, as he explained at trial, “I’m not into doing stick-ups.” (Id. at 280). The appellant left Rosa-do’s house.

Approximately one half-hour later, the appellant returned to Rosado’s house. Rosado answered the door when the appellant knocked on it. When Rosado opened the door, he saw the appellant accompanied by Wilfredo Cintron’s nephew. The appellant again asked Rosado if he would participate in robbing the two black males. Rosado answered in the negative but Rosado’s friend, Heavy D, agreed to help and left the house with the appellant and Wilfredo Cintron’s nephew. Approximately ten minutes later, the appellant returned to Rosado’s house. This time, the appellant asked Rosado if he “wanted to make a direct sale to two black males for him.” (Id. at 281). Rosado agreed to conduct the sale for the appellant, and proceeded to the house at 2950 N. Lawrence Street.

Once Rosado arrived at Cintron’s house, he waited in the living room with the appellant. Rosado asked the appellant if the drugs that he had agreed to sell were in the house. The appellant answered, “No.” Shortly thereafter, “Julio,” the appellant’s supplier, arrived at the house, carrying a paper bag which contained sixty-three bundles of crack cocaine. Rosado counted twenty “blue caps” or vials of cocaine in each bundle. Rosado then placed the drags under a table in the living room.

Soon, Jenkins and Williams returned to complete their purchase of the drags. The appellant answered their knock on the door. Jenkins and Williams entered the living room accompanied by the appellant. Rosado asked them if they had the money. Jenkins said, “Yes,” then asked if Rosado had the “material,” meaning the drags. (Id. at 284). Rosado answered, “Yes.” The appellant and Rosado then advanced toward Jenkins and Williams and patted down both men for weapons. Rosado found a handgun tucked into Jenkins’ waistband. Rosado asked Jenkins again if he had the money. Jenkins said, “Yes,” removed the money from the right hand pocket of his leather jacket, and placed it in Rosado’s hand. Rosado removed the rubber band which held the money, counted it, then wrapped the rubber band around the bills, and returned them to Jenkins, who placed the bundle back into his jacket pocket. At that point, “Heavy D” emerged from his hiding place under the stairway, holding a sawed-off shotgun. “Heavy D” told Jenkins and Williams to take out their guns and put them down. Jenkins and Williams ignored him. “Heavy D” again told the buyers to put their guns down. Williams ran to the front door as Wilfredo Cintron emerged from the kitchen wielding a .357 handgun. The appellant attempted to block the exit, but Williams then Jenkins managed to escape from the house into the street. “Heavy D” fired the sawed-off shotgun, hitting the door. Then, he ran outside into the middle of the street where he fired at least three more shots. Wilfredo Cintron fired his gun first from the kitchen where he had been hiding, then he too ran out of the house, up the street, firing approximately four shots. The appellant and Wilfredo Cintron’s nephew also went outside. Rosado remained at the doorway, armed with only a BB gun which he testified did not function properly. (N.T. May 13, 1993 at 289). Rosado testified that the appellant and Wilfredo Cintron’s nephew were unarmed. (Id.). Meanwhile, Jenkins was shot once he and Williams were outside. The police transported Jenkins to Episcopal Hospital where he was pronounced dead as a result of the gunshot wound.

Arrest warrants were issued for the appellant, Wilfredo Cintron, and Luis Rosado. On March 24, 1992, the appellant was arrested and charged with murder, voluntary manslaughter, involuntary manslaughter, robbery, possession of an instrument of crime, carrying firearms in a public street or in a public place, carrying firearms without a license, criminal conspiracy, simple assault, aggravated assault, and recklessly endangering another person. On May 11, 1993, a jury trial before the Honorable David N. Savitt ensued. The appellant was found guilty of murder in the second degree and possessing an instrument of crime. Immediately following dismissal of the jury, Judge Savitt imposed a sentence of life imprisonment for the appellant’s conviction of second degree murder. Sentencing on the possession of an instrument of crime was deferred. On March 16, 1994, Judge Savitt heard and denied post verdict motions. The court then imposed a sentence of not less than one year nor more than two years imprisonment for the crime of possession of an instrument of crime; the sentence was to be served concurrently to the appellant’s sentence of life imprisonment for his conviction of the crime of second-degree murder. The appellant filed a timely appeal on March 21, 1994. Following appellate argument, and the circulation of a proposed opinion, a panel of this Court elected to certify one issue to the Court en banc. The original panel subsequently withdrew their opinion.

Appellant raises the following issues on appeal:

I. DID THE TRIAL COURT ERR IN PERMITTING THE JURY TO EXAMINE APPELLANT’S STATEMENT DURING DELIBERATIONS. [sic] THROUGH THE TESTIMONY OF A POLICE DETECTIVE?
II. WAS THERE SUFFICIENT EVIDENCE AS A MATTER OF LAW TO SUSTAIN APPELLANT’S CONVICTIONS, IN THAT:
A. THERE WAS NO EVIDENCE PRESENTED THAT APPELLANT WAS IN ACTUAL OR CONSTRUCTIVE POSSESSION OF AN INSTRUMENT OF CRIME;
B. THE UNDERLYING FELONY ENGAGED IN BY APPELLANT FROM WHICH COMPLAINANT’S DEATH AROSE WAS NOT ONE OF THE STATUTORILY ENUMERATED FELONIES REQUIRED TO SUSTAIN A SECOND DEGREE MURDER VERDICT;
C. THE EVIDENCE ONLY ESTABLISHED THE APPELLANT’S MERE PRESENCE AT THE CRIME SCENE.

Appellant’s Brief at 3.

The appellant argues that the reading of his confession by the court reporter to the jury after they had been sent out to deliberate violates Rule 1114 of the Pennsylvania Rule of Criminal Procedure, which states that the jury cannot have, inter alia, a copy of any written confession by the defendant with them while they deliberate. The reading, the appellant alleges, violated the spirit of the law because it placed undue emphasis upon the testimony. We disagree.

Rule 1114 states that upon the jury’s retiring for deliberations, it shall not be permitted to have, inter alia, any written confession by the defendant. Pa.R.Crim.P. 1114. In this case, however, the rule does not apply as stated above: the jury was not given a written confession, part of the trial transcript, or any of the other things specifically prohibited by Rule 1114. Therefore, Rule 1114 is inapplicable. “When a jury requests that recorded testimony be read to it to refresh its memory, it rests within the trial court’s discretion to grant or deny such request.” Commonwealth v. Johnson, 421 Pa.Super. 433, 438-39, 618 A.2d 415, 418 (1992), affirmed, 538 Pa. 148, 646 A.2d 1170 (1994) (citing Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984)); Commonwealth v. Ingram, 404 Pa.Super. 560, 591 A.2d 734 (1991), allocatur denied, 530 Pa. 631, 606 A.2d 901 (1992); Commonwealth v. McBall, 316 Pa.Super. 493, 499, 463 A.2d 472, 475 (1983). Furthermore, so long as there is not a flagrant abuse of discretion, this decision should not be overturned on appeal. Id. (citing Commonwealth v. Fontaine, 183 Pa.Super. 45, 47, 128 A.2d 131, 132 (1956)).

In the instant case, there was a weekend between the time that Detective Jastrzembski testified regarding the appellant’s statement to the police and the time that the jury was sent out to begin their deliberations. Seven minutes after being dismissed to begin their deliberations, the jury sent to the court the following question: “Your Honor, may we please see Samuel Gladden’s statement to the police?” (N.T. 5/17/93 at 634). The trial court refused to honor their request. The jury again retired to deliberate. The following request was sent out within minutes: “Your Honor, we are requesting that Detective Jastrzembski’s testimony [be] read back to us— slowly.” (Id. at 647). The trial court exercised its discretion and granted this request because the jury needed to refresh its memory. See Commonwealth v. Johnson, swpra. The trial court had the court reporter read back the entire testimony of Detective Jastrzembski, both direct examination and cross-examination so that neither part was emphasized more than the other. Based on the circumstances of the instant case, we conclude that there was no flagrant abuse of discretion by the trial court in permitting the testimony to be read to the jury. See Commonwealth v. Bell, supra (no abuse found when direct examination but not cross-examination of witness was read to jury by court reporter where trial was interrupted by a weekend and a holiday, and testimony in question was given two days prior to case going to the jury). Consequently, we hold that the trial court did not err in allowing Detective Jastrzembski’s testimony to be read to the jury.

With regard to the allegation that insufficient evidence existed to convict the appellant of possessing an instrument of crime, the appellant argues that he was an employee and not a principal in the drug operation. The appellant asserts that he was personally unarmed and lacked the ability to control the actions of the armed individuals. The appellant maintains that there was insufficient evidence regarding whether he had actual or constructive possession of a weapon. Therefore, the appellant concludes, the judgment of sentence relating to the conviction of possessing an instrument of crime should be vacated. We disagree.

The standard for reviewing a sufficiency claim is well established.

In reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Commonwealth v. Hanes, 361 Pa.Super. 357, 361, 522 A.2d 622, 623-24 (1987); Commonwealth v. Reddix, 355 Pa.Super. 514, 519, 513 A.2d 1041, 1045 (1986); Commonwealth v. Duffy 355 Pa.Super. 145, 154-55, 512 A.2d 1253, 1260-61 (1986). If a [trier of fact] could have reasonably determined from the evidence adduced that all of the necessary elements of the crime were established, then the evidence will be deemed sufficient to support the verdict. Commonwealth v. Gerulis, 420 Pa.Super. 266, 273, 616 A.2d 686, 689 (1992); Commonwealth v. Berkowitz, 415 Pa.Super. 505, 515, 609 A.2d 1338, 1343 (1992).

Commonwealth v. La, 433 Pa.Super. 432, 459, 640 A.2d 1336, 1350 (1994), allocatur denied, 540 Pa. 597, 655 A.2d 986 (1994); Commonwealth v. Wood, 432 Pa.Super. 183, 199-200, 637 A.2d 1335, 1343 (1994).

To show that a party is guilty of possessing an instrument of crime, the Commonwealth must prove three elements beyond a reasonable doubt. It must be proven that (1) a defendant possessed the instrument with the intent to employ it criminally; (2) the instrument is one commonly used for criminal purposes; and (3) a defendant possessed the instrument under circumstances not manifestly appropriate for lawful uses. Commonwealth v. Foster, 438 Pa.Super. 40, 44, 651 A.2d 163, 165 (1994); Commonwealth v. Correa, 437 Pa.Super. 1, 10, 648 A.2d 1199, 1203 (1994), allocatur denied, 540 Pa. 617, 657 A.2d 487 (1995); Commonwealth v. Meekins, 434 Pa.Super. 587, 590, 644 A.2d 765, 766 (1994). See 18 Pa.C.S.A. § 907. Instantly, because the appellant was not in actual possession of an instrument of crime during the robbery, in order for the appellant to be found guilty of possessing an instrument of crime, the Commonwealth had the burden of proving that the appellant was in constructive possession of an instrument of crime during the attempted commission of the robbery. Commonwealth v. Nelson, 399 Pa.Super. 618, 625, 582 A.2d 1115, 1118 (1990), allocatur denied 527 Pa. 664, 593 A.2d 840 (1991).

To prove constructive possession of an item, the Commonwealth must show that the defendant had both the intent and the ability to control the item. Commonwealth v. Hamm, 301 Pa.Super. 266, [269,] 447 A.2d 960, 962 (1982), citing Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968). At the least, the evidence must show that the defendant knew of the existence of the item. Commonwealth v. Hamm, supra 447 A.2d at 962 [citations omitted]. Possession may also be proved by circumstantial evidence. Commonwealth v. Carter, 304 Pa.Super. 142, [147,] 450 A.2d 142, 144 (1982). Individually, the circumstances may not be decisive; but, in combination, they may justify an inference that the accused had both the power to control and the intent to exercise that control, which is required to prove constructive possession. Commonwealth v. Carter, supra 450 A.2d at 144 [citations omitted].

Commonwealth v. Nelson, supra 399 Pa.Super. at 625-26, 582 A.2d at 1119. See Commonwealth v. Wilson, 493 Pa. 332, 426 A.2d 575 (1981) (where evidence established that defendant and his compatriots acted in concert and collusion, defendant could be convicted of murder of the third degree and possessing an instrument of crime even though it was not proved that defendant fired fatal shot); Commonwealth v. Smith, 490 Pa. 329, 416 A.2d 494 (1980) (evidence sufficient to support conviction for possession of instrument of crime where defendant did not possess gun but exhibited the “intent of promoting” the shooting); Commonwealth v. Nelson, supra (defendant’s conviction for possession of instrument of crime was sufficiently supported by evidence that his co-felon during robbery brandished gun and that defendant threatened to have co-felon “take care of’ victims if they did not cooperate). See also Commonwealth v. Breslin, 194 Pa.Super. 83, 165 A.2d 415 (1960) (possession of burglary tools need not be in the manual possession of a party and may be in joint possession); Commonwealth v. Dionisio, 178 Pa.Super. 330, 116 A.2d 109 (1955) (in prosecution for unlawful possession of burglary tools, tools found in defendant’s home were within his possession and it was not necessary that the tools be found on defendant’s person); Commonwealth v. Segers, 167 Pa.Super. 642, 76 A.2d 483 (1950) (possession, within statute defining offense of possession of burglary tools, may be joint as well as several).

Instantly, an examination of the record reveals the testimony of another associate of the appellant, Luis Rosado, whom the appellant repeatedly solicited to join in the “stick up” of Charles Jenkins and Craig Williams. (N.T. 5/13/93 at 279). Rosado described the scene of the robbery after he agreed to participate in a drug deal that would supposedly take place at the house on North Lawrence Street. The witness stated that his friend, “Heavy D”, who had agreed to join in the planned “stick up”, was present and was armed with a sawed-off shotgun. Rosado also testified that the appellant’s co-defendant, Wilfredo Cintron, was present, secreted in the kitchen of the house, armed with a .357 handgun. Rosado stated that he was carrying a BB gun that appeared to be a real gun. Because the appellant had specifically solicited these men to take part in a “stick up,” we may infer that he did not intend that the robbery should take place with the mere threat of possible physical violence. Clearly, the appellant intended that his compatriots in the robbery scheme should be armed with weapons at least as powerful as the weapons with which the drug buyers undoubtedly were armed. Moreover, when “Heavy D” stepped out and ordered Jenkins and Williams to put down their guns, the appellant, in an effort to promote or facilitate the robbery by trapping the buyers in the house, attempted to block the exit.

Furthermore, the appellant may be deemed to have been an accomplice of his co-defendant, Wilfredo Cintron, who has been similarly found guilty of possessing an instrument of crime during the attempted commission of the robbery. Accomplice liability is discussed in pertinent part in the Pennsylvania Crimes Code as follows:

§ 306. Liability for conduct of another; complicity
(a) General rule. — A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.
(b) Conduct of another. — A person is legally accountable for the conduct of another person when:
(3) he is an accomplice of such other person in the commission of the offense.
(c) Accomplice defined. — A person is an accomplice of another person in the commission of an offense if:
(1) "with the intent of promoting or facilitating the commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning or committing it....
(d) Culpability of accomplice. — When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

18 Pa.C.S.A. § 306(a)-(d). The applicable law has been summarized by this Court as follows:

“A person is legally accountable for the conduct of another person when he is an accomplice of that person in the commission of [an] offense.” Commonwealth v. Orlowski, 332 Pa.Super. 600, 616, 481 A.2d 952, 960 (1984). See: 18 Pa.C.S. § 306.
An accomplice is one who “knowingly and voluntarily cooperates with or aids another in the commission of a crime.” Commonwealth v. Carey, 293 Pa.Super. 359, 373, 439 A.2d 151, 158 (1981). See: 18 Pa.C.S. § 306. See also: Commonwealth v. Jones, 213 Pa.Super. 504, 508, 247 A.2d 624, 626 (1986). To be an accomplice, “one must be an active partner in the intent to commit [the crime].” Commonwealth v. Fields, supra 460 Pa. [316] at 319-320, 333 A.2d [745] at 747 [1975]; Commonwealth v. McFadden, 448 Pa. 146, 150, 292 A.2d 358, 360 (1972). “An [accomplice] must have done something to participate in the venture.” Commonwealth v. Flowers, 479 Pa. 153, 156, 387 A.2d 1268, 1270 (1978).

Commonwealth v. Brady, 385 Pa.Super. 279, 284-285, 560 A.2d 802, 805 (1989). However, “[t]he least degree of concert or collusion in the commission of the offense is sufficient to sustain a finding of responsibility as an accomplice.” Commonwealth v. Graves, 316 Pa.Super. 484, 489-490, 463 A.2d 467, 470 (1983). See: Commonwealth v. Coccioletti, 493 Pa. 103, 109, 425 A.2d 387, 390 (1981).

Commonwealth v. Calderini, 416 Pa.Super. 258, 262-63, 611 A.2d 206, 208 (1992), allocatur denied, 533 Pa. 656, 625 A.2d 1190 (1993).

Instantly, at trial, Luis Rosado testified that Wilfredo Cintron, the appellant’s co-defendant, was armed with a .357 handgun when the incident took place. (N.T. 5/13/93 at 287). In addition, the same witness testified that “Heavy D” was armed with a sawed-off shotgun. (Id.). Pennsylvania courts have held that a loaded gun is considered an “instrument of crime.” Commonwealth v. Stanley, 498 Pa. 326, 335-36, 446 A.2d 583, 587-88 (1982). Under the circumstances of the instant case, we conclude that Cintron’s possession of the instrument of crime was not “manifestly appropriate for lawful uses.” Commonwealth v. Correa, supra. Cintron was seen exiting the house where the incident took place and firing four shots in the direction Jenkins and Williams fled. (N.T. 5/13/93 at 288). Thus, there was abundant evidence to support Cintron’s conviction for possession of an instrument of crime. Examining the totality of the circumstances and viewing the evidence in the light most favorable to the Commonwealth, we conclude that the appellant was indeed an accomplice of Cintron, and therefore also guilty through accomplice liability of possessing an instrument of crime.

The appellant next alleges that the second-degree murder conviction cannot be upheld because he had no knowledge that the robbery would take place at the time. The appellant contends that he was only culpable for participating in an illegal drug operation. Because delivery or sale of a controlled substance is not one of the statutorily enumerated felonies upon which a second degree murder conviction can be sustained, the appellant concludes that the judgment of sentence should be vacated. We disagree.

As previously stated, we must view all evidence and any reasonable inferences which may be drawn from it in the light most favorable to the Commonwealth. See Commonwealth v. La, supra; Commonwealth v. Wood, supra. According to the Pennsylvania Crimes Code, second degree murder is a homicide committed while a defendant was engaged as a principal or an accomplice in the perpetration of a felony. 18 Pa.C.S.A. § 2502(b). The definition of perpetration of a felony within the context of Section 2502 is the act of engaging in or being an accomplice in the commission of robbery, rape, deviate sexual intercourse by force or threat of force, arson, burglary, or kidnapping. 18 Pa.C.S.A. § 2502(d).

Although we agree with the appellant in the instant case that delivery or sale of a controlled substance is not one of the felonies enumerated in Section 2502, we recognize that robbery is included in the list of felonies which would permit a second-degree murder charge. A person is guilty of robbery if, in the course of committing a theft, he, among other things, inflicts serious bodily injury upon another or threatens another with or intentionally puts him in fear of immediate serious bodily injury. 18 Pa.C.S.A. § 3701(a). Pennsylvania courts have ruled that a robbery is committed when the defendant has either inflicted serious bodily injury on another or “physically removed property of another by force.” Commonwealth v. Williams, 537 Pa. 1, 13, 640 A.2d 1251, 1257 (1994) (quoting Commonwealth v. Breakiron, 524 Pa. 282, 297, 571 A.2d 1035, 1042 (1990), certiorari denied, Breakiron v. Pennsylvania, 498 U.S. 881, 111 S.Ct. 224, 112 L.Ed.2d 179 (1990)). As stated above, a person is considered an accomplice of another if he solicits another to commit an offense or aids or agrees or attempts to do such in planning or committing the offense. 18 Pa.C.S.A. § 306. See Commonwealth v. Calderini, supra. Furthermore, the least degree of assistance in committing the offense is adequate to sustain the finding of responsibility as an accomplice. Commonwealth v. Calderini, supra (citing Commonwealth v. Graves, supra).

Instantly, it can be gleaned from the testimony and other materials in the record that an attempted robbery took place. One of the appellant’s associates, Luis Rosado, testified at trial that he was repeatedly solicited by the appellant to assist in robbing the two potential buyers. (N.T. 5/13/93 at 279). Further, the appellant’s own statement as read by Detective Frank Jastrzembski revealed that there was a plan to rob the potential buyers. (N.T. 5/14/93 at 496). In addition, one of the potential buyers was shot and killed during the attempted robbery. Therefore, the necessary elements of robbery are present.

Moreover, it can be inferred from the evidence that the appellant was an accomplice in the robbery. There was testimony that he solicited people to assist in the robbery and attempted to block the exit when the potential buyers tried to escape. Viewing the evidence in the light most favorable to the Commonwealth, we conclude that the appellant was an accomplice in the attempted robbery. Because the crime of robbery is included among the felonies listed in 18 Pa.C.S.A. § 2502, and a person was killed during this attempted robbery, we hold that the Commonwealth sustained their burden of proof and that the appellant was properly convicted of second degree murder.

Finally, the appellant argues that the evidence established only that he was merely present at the scene. The appellant claims that he had no knowledge that the robbery would take place. Therefore, the appellant maintains, there was insufficient evidence presented by the Commonwealth to support the verdict. Again, we disagree.

The law is clear that a defendant cannot be convicted of a crime where the only evidence to connect him with the crime is “mere presence” at or near the scene. Commonwealth v. Durahr-El, 344 Pa.Super. 511, 517, 496 A.2d 1222, 1226 (1985); Commonwealth v. Stores, 317 Pa.Super. 109, 117-18, 463 A.2d 1108, 1112-13 (1983); Commonwealth v. Knox, 273 Pa.Super. 563, 570, 417 A.2d 1192, 1193 (1980). The converse is that something more than “mere presence” at the scene of the crime must be shown to convict one of the participants in the commission of the crime. Commonwealth v. Durah-El, supra, 344 Pa.Super. at 517, 496 A.2d at 1226 (citing Commonwealth v. Lovette, 271 Pa.Super. 250, 255, 413 A.2d 390, 392 (1979), reversed on other grounds, 498 Pa. 665, 450 A.2d 975 (1982)).

Commonwealth v. La, supra, 433 Pa.Super. at 447-48, 640 A.2d at 1344.

The evidence adduced at trial demonstrates that the appellant knew that the robbery would be taking place, in fact, he arranged the entire incident and enlisted the aid of the gunmen. One of the appellant’s associates testified that the appellant attempted to solicit him to aid the appellant in “sticking up” two people. (N.T. 5/13/93 at 279). Furthermore, the appellant knew, prior to the return of Charles Jenkins and Craig Williams, that the money would be forcibly taken from the buyers, as evidenced in his statement to the police. (N.T. 5/14/93 at 496). Thus, we conclude that, contrary to the appellant’s assertions, the appellant was not merely present and the appellant’s role was not that of an innocent bystander.

Based upon the foregoing, we hold that the trial court properly allowed Detective Jastrzembski’s testimony, which included the appellant’s confession, to be read to the jury at their request during their deliberations. Viewing the evidence in the light most favorable to the Commonwealth, we hold that the Commonwealth presented sufficient evidence to support the appellant’s convictions for the crimes of second degree murder and possession of an instrument of crime. Finally, the evidence also demonstrated that the appellant was not “merely present” at the scene but in fact he was quite aware of what was occurring around him and was a willing accomplice, if not the principal. Accordingly, we affirm the appellant’s judgment of sentence.

Judgment of sentence affirmed.

CAVANAUGH, J., filed a dissenting opinion.

FORD ELLIOTT, J., joined the majority and filed a concurring statement.

JOHNSON, J., joined in CAVANAUGH, J., dissenting opinion.

FORD ELLIOTT, Judge,

concurring.

I join in the majority’s resolution of the case. However, as to the PIC conviction, I do so based on the facts of this case and not on a general proposition that accomplice liability is all that is required to convict for possession of an instrument of crime. I can find, as did the majority, that appellant’s actions established sufficient control over the use of the weapons in this case. He arranged the robbery and enlisted the gunman for the purpose of utilizing their weapons to forcibly relieve the buyers of their money. I, therefore, agree that appellant constructively possessed the weapons. However, to distinguish, if I were reviewing a PIC conviction for the witness Rosado, under the facts of this case, I would be inclined to join. the Dissenting Opinion of my colleague Judge Cavanaugh and decide that mere accomplice liability was not enough.

CAVANAUGH, Judge,

dissenting.

Since it may readily be agreed that appellant, Gladden, was properly convicted of second degree murder, the only issue presently considered is whether he was properly convicted of possession of instrument of crime (generally) 18 Pa.C.S.A 907(a). (PIC (generally))

§ 907. Possessing instruments of crime
(a) Criminal instruments generally. — A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.

This crime, which is part of the chapter of our crimes code defining inchoate crimes, was initially believed by a celebrated minority of this court not to extend to weapons such as the firearms involved in this case. Commonwealth v. McNear, 238 Pa.Super. 177, 353 A.2d 39 (1975). Aff'd, 478 Pa. 19, 385 A.2d 975 (1978). Although there is a logical and principled argument that the scheme and interrelationship of Crime Code provisions dealing with firearms and other weapons was formulated to exclude firearms from 907(a) coverage, it is easy to understand why the majority in McNear and cases since that time have uniformly held that a firearm is indeed within any reasonable definition of “any instrument of crime” under 18 Pa.C.S.A. 907(a). That issue having been settled, it is also easy to understand why PIC (generally) has become a boilerplate charge in any case where a completed crime involves usage of a firearm. Quite naturally, in a case involving a homicide, aggravated assault or robbery, the PIC (generally) charge does not become the focus of attention as a trial, sentencing or appeal issue. However, occasionally it does, and in such cases it is well to remember that 907(a) is first and foremost a crime of possession. We have held that in order to show possession, the Commonwealth is required to show power of control over the weapon. Commonwealth v. Carter, 304 Pa.Super. 142, 450 A.2d 142 (1982) (citing cases). We have also recognized that “possession” may be shown by evidence of constructive possession. Commonwealth v. Hamm, 301 Pa.Super. 266, 447 A.2d 960 (1982); Commonwealth v. Carter, supra; See also, Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1974) affirmed, 498 Pa. 328, 446 A.2d 583 (1982) (constructive possession proved by evidence of previous actual possession); Commonwealth v. Nelson, relied upon by the majority is just such a case. There the constructive possession was based upon the defendant’s warning to the robbery victim while his co-actor brandished a gun that he (the victim) should be quiet or “my boy” would take care of him. Our court equated this to an ability to control use of the weapon.

In our case, Gladden was never in possession of a weapon during the course of the criminal episode nor is there any evidence that he exercised any dominion or constructive possession of a weapon in the hands of any cohort. Thus, extension of criminal liability for the possession offense is, by the majority, based on alternative concepts of concert, collusion and, in turn, complicity.

It may seem anomalous that concerted conduct, while sufficient to make one culpable of a murder actually perpetrated by a co-actor, is at the same time insufficient to form the basis for conviction of a lesser weapons offense on a conspiracy theory. Nevertheless, the elements of the separate crimes lead me to conclude that, in a case such as this, conspiracy or complicity in a murder does not necessarily implicate conspiracy to possess an instrument of crime. I would hold that, absent evidence of actual or constructive possession, criminal liability for possession of a weapon by one, other than the possessor, may only be based upon evidence that the defendant supplied, procured, or in some way, facilitated the actual possession of the weapon by another. In sum, I believe that theories of conspiracy, accomplice liability or shared intent are irrelevant to a PIC charge unless they relate to the gravamen of the charge — possession of a weapon. There is no such showing in this case.

Consequently, I would reverse and vacate the judgment of sentence for possession of instrument of crime (generally) and I would otherwise affirm.

JOHNSON, J., joins.

      . The house was owned by the brother and sister-in-law of the appellant’s co-defendant, Wilfredo Cintron. At trial, a neighbor testified that the owners were not occupying the house, and that Cintron was frequently there in their absence.

      . The gunshot wound was perforating or through and through. The entry wound was over the left buttock, 38 inches above [the decedent’s] heel or 30 inches below the top of his head. It was four inches from his spine. This wound was an inch long and passed through the skin, the soft tissue, including the muscle, entered his abdominal cavity or his belly, it passed through his bony pelvis and small bowel as well as large bowel, and cut across a major blood vessel in his groin area____ The exit wound was in the right groin____ [The bullet] totally severed the iliac artery which is the major artery. And damaged large and small bowel as well____ [The injury] would [have] produce[d] death in a reasonably short period of time.
      (N.T. May 14, 1993 at 426-27).

      . The appellant and Wilfredo Cintron were tried together; Luis Rosado entered a plea of guilty to third degree murder and testified against the appellant and Cintron at trial.

      . 18 Pa.C.S.A. § 2502.

      . 18 Pa.C.S.A. § 907.

      . In actuality, these issues were raised by appellant in his original brief, not the substituted brief submitted for the Court en banc. After the original panel decided these issues, issue IIA was certified to go to this Court en banc. After certification was granted, the original panel withdrew their opinion. Therefore, because no disposition has been made yet as to these issues, we feel compelled to address them.

      . Rule 1114 of the Pennsylvania Rules of Criminal Procedure states in toto:

      Upon retiring for deliberations, the jury shall not be permitted to have a transcript of any trial testimony, nor a copy of any written confession by the defendant, nor a copy of the information or indictment. Otherwise, upon retiring, the jury may take with it such exhibits as the trial judge deems proper.
      Pa.R.Crim.P. 1114.

      . In fact, the "pumpkin ball-type" projectile which killed Charles Jenkins more than likely came from "Heavy D’s” shotgun.

      . Two cases relied upon by the majority demonstrate this subordination of issues. In neither Commonwealth v. Wilson, 493 Pa. 332, 426 A.2d 575 (1981) nor Commonwealth v. Smith, 490 Pa. 329, 416 A.2d 494 (1980) is there any discussion of the possessory aspect of the weapons charge where more serious charges were at issue.

      . Other cases relied upon by the majority (Breslin, Dionisio, and Segers) deal with actual or constructive possession of burglary tools. Burglary tools and similar "instruments of crime" are the original intended subject matter of 907(a). See comments, Model Penal Code Comment Sections 5.06 and 5.07 Tentative Draft No. 13.

      . The majority's detailed discussion of accomplice liability fails to disclose how Gladden’s conduct implicates him in the act of possessing a weapon held by another. Similarly, the invitation to a cohort to join a “stick-up” can hardly subject one to a charge of possession of a weapon when all the evidence is that the person, in fact, chose not to possess a weapon.


source: Caselaw Access Project

author: OLSZEWSKI, Judge.

license: Public Domain

text:
    665 A.2d 1212
    COMMONWEALTH of Pennsylvania v. Steven Anthony HOAG, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 24, 1995.
    Filed Sept. 27, 1995.

      Joseph P. Burt, Public Defender, Erie, for appellant.
    Matthew R. Hayes, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before McEWEN, TAMILIA and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge.

On December 28, 1994, following a plea colloquy, appellant Steven A. Hoag pleaded guilty to the following crimes: unlawful delivery of .25 grams of cocaine, unlawful delivery of 6.12 grams of cocaine and conspiracy to deliver the same, unlawful delivery of 12.8 grams of cocaine, and hindering apprehension. Hoag now appeals only the judgment of sentence arising out of the sale of the .25 grams of cocaine, based upon the single theory that the sentence imposed is excessive. We disagree, and affirm.

Hoag negotiated the following plea agreement with the Commonwealth: in exchange for four guilty pleas, the District Attorney’s office recommended that Hoag receive the statutory minimum sentences for his having sold 6.12 and 12.8 grams of cocaine. Furthermore, these two sentences were to be served concurrently. While not bound by the plea agreement, the Honorable Stephanie Domitrovich noted and abided by the Commonwealth’s recommendations in sentencing Hoag. N.T. 1/23/95 at 13. Hoag received a sentence of one-to-three and six-to-three years incarceration, to be served concurrently, for the larger sales. No sentence was agreed upon for the relatively small sale of .25 grams. For this crime, Judge Domitrovich additionally imposed a consecutive term of three-to-six years imprisonment.

Hoag now argues that this last sentence was excessive because the sentencing court failed to suitably tailor the sentence to this case by not adequately considering mitigating circumstances, the circumstances of the crime, or public policy; imposed a sentence disproportionate to the ones imposed for the other drug-related crimes; imposed a manifestly excessive sentence, especially in light of the fact that it is to be served consecutively to the other sentences; and did not impose a minimum sentence consistent with sentencing guidelines.

These arguments address the discretionary aspects of sentence. See Commonwealth v. McKiel, 427 Pa.Super. 561, 629 A.2d 1012 (1993) (stating that a sentence is manifestly excessive challenges the sentencing court’s discretion). The right to appeal the discretionary aspects of sentence is not absolute; such an appeal is instead considered to be a petition for permission to appeal. Id. at 563-64, 629 A.2d at 1013. Since appellate review of sentence is not a matter of right, it will only be entertained where this court is convinced that a substantial question exists that the sentence imposed is not appropriate under the Sentencing Code. Commonwealth v. Urrutia, 439 Pa.Super. 227, 653 A.2d 706 (1995).

“An allegation that a sentencing court ‘failed to consider’ or ‘did not adequately consider’ certain factors does not raise a substantial question that the sentence was inappropriate. Such a challenge goes to the weight accorded the evidence and will not be considered absent extraordinary circumstances.” Id. at 236, 653 A.2d at 710 (citations omitted). Claiming that a sentence is too severe because the others imposed were so slight is a novel argument, but it hardly qualifies as an extraordinary circumstance meriting our review. Just because fortune smiled once upon appellant does not mean that he now has a vested interest in forever-more being the recipient of the Commonwealth’s munificence.

In addition to rejecting appellant’s claim that the sentencing court failed to properly consider certain factors, we similarly find meritless his claim that the sentence was manifestly excessive. Sentencing is within the sound discretion of the sentencing judge, and his or her decision will not be disturbed absent a manifest abuse of discretion. McKiel, 427 Pa.Super. at 563-64, 629 A.2d at 1013; Commonwealth v. Jones, 418 Pa.Super. 93, 101, 613 A.2d 587, 591 (1992) (en banc), allocatur denied, 535 Pa. 615, 629 A.2d 1377 (1993). “To constitute an abuse of discretion, the sentence imposed must either exceed the statutory limits or be manifestly excessive.” Commonwealth v. Gaddis, 432 Pa.Super. 523, 536, 639 A.2d 462, 469 (citations omitted), allocatur denied, 538 Pa. 665, 649 A.2d 668 (1994). Hoag does not contend that his sentence exceeds the statutory limits. In fact, he concedes that it is within the standard guideline range. Appellant’s brief at 11. It is the fact that this sentence is to run consecutively to the others imposed for drug-related offenses that, in Hoag’s view, makes the sentence excessive.

“The general rule in Pennsylvania is that in imposing a sentence the court has discretion to determine whether to make it concurrent with or consecutive to other sentences then being imposed or other sentences previously imposed.” Commonwealth v. Graham, 541 Pa. 173, 184, 661 A.2d 1367, 1373 (1995) (citation omitted). A challenge to the court’s imposing consecutive rather than concurrent sentences, however, does not present a substantial question regarding the discretionary aspects of sentence. Gaddis, 432 Pa.Super. at 536, 639 A.2d at 469-470. We see no reason why Hoag should be afforded a “volume discount” for his crimes by having all sentences run concurrently. Cf. Commonwealth v. Anderson, 538 Pa. 574, 579, 650 A.2d 20, 22 (1994) (raising a concern that defendants not be given “volume discounts” for multiple criminal acts that arose out of one larger criminal transaction).

Hoag also claims that the sentencing court must impose the minimum punishment consistent with the goals of sentencing. Appellant’s brief at 15. In 1978, the legislature deleted language from the Sentencing Code which stated that “the sentence imposed should call for a minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721 Historical Note. We have since held, however, that imposing the minimum sentence consistent with the legislative aims of sentencing is a guiding principle for the court. Commonwealth v. Martin, 416 Pa.Super. 507, 611 A.2d 731 (1992). Nevertheless, it is only when the court goes outside the guideline ranges of the Sentencing Code do we presume that the sentence imposed is not the minimum sentence recommended by statute. See id. at 517, 611 A.2d at 736 (“[T]he court is guided by the general principle that the sentence imposed should be the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. However, if a sentencing judge elects to go outside of the guideline ranges, he or she is required to set forth on the record the reasons for so doing.” (citations omitted)). The recommended ranges within the sentencing guidelines are minimum sentences consistent with the requirements and concerns of the Commonwealth, victims, and defendant. Here the sentencing court did consider the particular attendant factors, the concerns of the citizenry, and Hoag’s needs when it fashioned a suitable sentence tailored to this case. N.T. 1/23/95 at 12 (taking into account Hoag’s age, the facts and circumstances of the offense, Hoag’s character and rehabilitative needs, and the need to protect society).

In sum, we find that the argument that the sentencing court imposed sentence without due regard to various important factors fails to raise a substantial question, and the claim that the sentence is manifestly excessive is utterly devoid of merit.

Accordingly, judgment of sentence is affirmed.

McEWEN, J., concurs in the result.

      . Hoag violated 35 P.S. § 780-113(a)(30) when, on three separate occasions, he sold cocaine to Pennsylvania State Trooper Tracey McCracken.

      . Hoag pleaded guilty to violating 18 Pa.C.S.A. § 5105 for helping to conceal a robbery suspect on July 28, 1993.


author: DEL SOLE, Judge:

text:
    665 A.2d 1215
    Thomas L. SMITH and Dolores Smith, Appellants, v. Pauline WEAVER, Appellee.
    Superior Court of Pennsylvania.
    Argued April 26, 1995.
    Filed Sept. 27, 1995.

      Joseph L. Luciana, III, Pittsburgh, for appellants.
    James V. Corbelli, Pittsburgh, for appellee.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   DEL SOLE, Judge:

This is an appeal from an order granting Appellee’s preliminary objections and dismissing all eleven counts of Appellants’ Complaint, with prejudice. We reverse in part, affirm in part.

The claims made by Appellant were each premised in some manner on a question of who is to be responsible for costs associated with underground storage tanks which were leaking waste materials. The Complaint sets forth the following relevant facts.

Appellants [the buyers] purchased property on which had been operated a gasoline station from Appellee [the seller] in August of 1981. The Sales Agreement listed a total price of $70,000, plus the cost of inventory. The $70,000 price included $10,000 for the property, $7,000 for equipment, machinery and personal property and $53,000 for the gasoline station building. Specifically listed as equipment were three 4,000 gallon underground storage tanks. In 1991, the buyers undertook to remove the three storage tanks. During excavation two other storage tanks were discovered both of which were leaking water and waste materials. The buyers notified the Commonwealth of Pennsylvania, Department of Environmental Resources [DER] that contaminants and pollutants were discovered in soil which was adjacent to the leaking tanks. The DER responded by requiring the buyers to conduct soil samplings and to dispose of the tanks and contaminated soil. The cost associated with this cleanup activity has been in excess of $70,000.

Count One

The first count of the Complaint sets forth a claim based on misrepresentation. It alleges that the seller knew or should have known of the existence of the leaking underground tanks at the time that she entered the sales agreement with buyers. By negligently or intentionally failing to disclose the existence of these tanks to them, the buyers allege that the seller misrepresented the condition of the property which induced them to purchase it.

The trial court dismissed this first count on the ground that there was no representation as to the maximum number of storage tanks which were on the premises. The court referred to the language of the Sales Agreement and concluded that the plain and unambiguous meaning of the Agreement is that the buyers purchased everything connected with the gasoline station’s operation, including all the storage tanks. In so ruling the court focused on the following provision of the agreement:

The Seller agrees to sell ... a parcel of real property ... having erected thereon a gasoline station ... together with all equipment located on the property more particularly described in Exhibit “B” attached hereto and made part hereof, together with all inventory located on the Property on the day before Settlement.

Exhibit “B” is an attachment listing “Library Road Property Equipment.” “(Three) 4,000 Gallon Steel Tanks” appear as the second item on the list. The trial court concluded that the agreement provided no reason why the buyers would rely on a conclusion that those items listed in Exhibit B were “all” the equipment which they were purchasing. As the trial court viewed it “all equipment located on the property” passed to the buyers and the specific items listed in the exhibit were the minimum amount of equipment included in the purchase price.

In considering the appropriateness of this ruling as well as the court’s ruling on each count, we, as an appellate court, must apply the same standard employed by the trial court. Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985). The material facts set forth in the complaint as well as all inferences reasonably deducible therefrom must be admitted as true. Id. The court must determine from the facts averred, whether the law says with certainty that no recovery is possible. Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 500 A.2d 470 (1985). If doubt exits whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer. Id.

Where the issue is the interpretation of an unambiguous contract, the court is to resolve the matter as an issue of law. Rosen v. Empire Valve and Fitting, 381 Pa.Super. 348, 553 A.2d 1004 (1989). In this case the court viewed the contract as unambiguous, however it is clear to us that such a conclusion was in error. The contract does provide for the conveyance of a parcel of real estate “together with all equipment located on the property,” however in that same sentence is the phrase “as more particularly described in Exhibit B.” Exhibit “B” is a specifically enumerated list of equipment, which, among other equipment, lists only three underground storage tanks. No mention is made of the other tanks which were later discovered. Contrary to the trial court’s reading of this language, we perceive of no reason why the buyers would expect Exhibit B to be only a “minimum list” of equipment which was to be transferred. The list of equipment contemplated by the parties when negotiating the sale may have effected the purchase price ultimately agreed upon. In this situation we cannot say, as a matter of law, that the agreement covered “all” the equipment including the undisclosed storage tanks. Rather, the jury should determine if the seller knew, or had reason to know of the tanks, and whether the buyers could reasonably rely on any representations contained in the agreement about the number of tanks being sold along with the property.

Counts Two, Three, Four, Five, Six and Eight

Each of these counts were dismissed by the court on the premises that they could not be maintained since the seller was no longer the owner of the leaking storage tanks. Count Two sets forth a claim for negligence, and Counts Three, Four, Five and Six assert claims for public and private nuisance. Count Eight is a claim for contribution and indemnification and is based on an allegation that the seller abandoned the leaking tanks at the property. With respect to each of these claims the trial court concluded that because of the “unambiguous” language in the sales agreement, the tanks were sold to the buyers in 1981. Based on the conclusion that the seller is not the current owner of the tanks, the court reasoned that the seller owes a duty to no one with respect to the tanks.

As we have stated, the agreement itself is ambiguous regarding the sale of these tanks. The seller maintains, however, that the tanks passed to the buyers regardless of the language of the agreement since it believes they were fixtures on the property.

A fixture is an article in the nature of personal property which has been so annexed to the realty that it is regarded as part and parcel of the land. Black’s Law Dictionary 574 (5th Ed.1979). In determining the relationship of an article to the land, the decision in Clayton v. Lienhard, 312 Pa. 433, 436-437, 167 A. 321, 322 (1933), is often quoted. See Royal Store Fixture Co. v. Patten, 183 Pa.Super. 249, 252-253, 130 A.2d 271, 273 (1957). Therein it was said:

Chattels used in connection with real estate are of three classes: First, those which are manifestly furniture, as distinguished from improvement, and not peculiarly fitted to the property with which they are used; these always remain personalty. Second, those which are so annexed to the property that they cannot be removed without material injury to the real estate or to themselves; these are realty, even in the face of an expressed intention that they should be considered personalty.... Third, those which, although physically connected with the real estate, are so affixed as to be removable without destroying or materially injuring the chattels themselves, or the property to which they are annexed; these become part of the realty or remain personalty, depending upon the intention of the parties at the time of annexation; in this class fall such chattels as boilers and machinery affixed for the use of an owner or tenant but readily removable.

(citations omitted.)

The seller argues that the storage tanks fit within the second category of chattels and are part of the property because to remove them would damage the real estate. The seller’s position cannot be adopted, however, on the state of the record before us. Surmise and conjecture can play no part in our decision, and in ruling on preliminary objections we are to accept the facts set forth as true and resolve doubts in favor of overruling a demurrer. Baker v. Magnetic Analysis Corp. supra. We cannot say with certainty on the face of this record, at this stage of the case, what effect the removal of these tanks had on the tanks themselves or the property. Therefore, we unable to rule whether or not they are fixtures based upon an analysis of this second category.

Further the seller makes the alternative argument that if the tanks are likened to a boiler and are classified under the third category of chattels, the only reasonable conclusion is that they were intended to be placed there as fixtures. The third type of chattel described in Clayton may or may not be considered part of the realty depending on the intent of the parties. While the court’s have held that an objective intent standard should apply when considering this question for purposes of the statute of repose, 42 Pa.C.S.A. § 5536, this same standard does not necessarily apply when considering the question in the more traditional context for the law of fixtures. See Noll by Noll v. Harrisburg Area YMCA 537 Pa. 274, 288, n. 6, 643 A.2d 81 (1994). A more subjective analysis may be appropriate in this situation, and this appears to be what the court’s have applied in the past. In Royal Store Fixture Co. v. Patten, supra., the court examined the intent of the parties with regard to a question of whether a frozen custard stand and cooler were intended to be personalty. The court found that the intention that the building should remain personalty was clearly expressed in a conditional sales agreement and the parties in their dealings indicated a similar intent.

In this case the intent of the parties is uncertain. Despite the nature of the chattel and its apparent annexation to the property, the parties did list other storage tanks as part of the “equipment” being transferred for a set price in the overall transaction. This would appear to indicate that the parties considered storage tanks to be personalty. Again, at this stage of the case, when ruling on preliminary objections, we cannot accept the legal conclusion that the storage tanks were fixtures which passed with the property to buyers. As with count one, these counts must as well be referred to a jury to make an ultimate determination based upon the facts presented.

Count Seven

The trial court also dismissed Count Seven of the Complaint, which set forth a claim based on strict liability. It set forth two reasons in support of its decision. The first we cannot accept because the court held that the claim depended on buyer’s current ownership, and for the reasons set forth above we concluded that a ruling on ownership of the tanks was premature.

Secondly, the court ruled that either known or unknown underground storage tanks do not constitute an abnormally dangerous or ultrahazardous condition on the property. With this conclusion we agree.

The buyers would urge us to consider not whether underground tanks are abnormally dangerous, but rather whether underground storage tanks which are leaking a hazardous substance, are abnormally dangerous. By so phrasing the issue the buyers are seeking to have us view the results of the activity, instead of the activity itself. Although a dangerous condition may have later developed, or harm may have occurred, the proper focus is on the activity itself, the storage of potentially hazardous substances in an underground tank.

We liken the present situation with that found in Melso v. Sun Pipe Line Co., 394 Pa.Super. 578, 576 A.2d 999 (1990), where the court considered whether the operation of a petroleum pipeline under a housing development was an abnormally dangerous activity. The court criticized the trial court which focused on the potential for harm which may occur when a gasoline pipeline breaks. The trial court noted that such an occurrence could cause “an ‘environmental catastrophe of considerable magnitude.’” Id. at 587, 576 A.2d at 1003. This court, on review, found that the transmission on land of natural gas and petroleum products is a common activity in a highly industrialized society. Id. We ruled that the trial court erred in determining that the operation of the pipeline was abnormally dangerous. We cited to the strict liability provisions of the Restatement (Second) of Torts, found in sections 519 and 520. It provides:

§ 519. General Principle
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
§ 520. Abnormally Dangerous Activities
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Restatement (Second) of Torts § 519 and 520 (1976)

Applying these factors to the situation before us, we conclude that the operation of underground storage tanks at a gasoline service station is not an abnormally dangerous activity. Gasoline and other petroleum products can be stored and dispensed safely with reasonable care, and the storage of these materials in tanks is a common use and is valuable to a modern society. The location of tanks at a gasoline service station is certainly appropriate and although the harm which may result from a leak may be great, this one factor pales in comparison to the others which point in favor of our ruling that the storage of petroleum products in underground storage tanks is not abnormally dangerous. For this reason we affirm the court’s dismissal of Count Seven of the Complaint.

Count Nine

Count Nine alleges a violation of the Hazardous Sites Cleanup Act (HSCA), 35 Pa.S. § 6020.101, et seq. The trial court found that the Act did not allow for a private cause of action seeking recovery costs associated with a clean-up effort.

Although no Pennsylvania appellate court has yet ruled on this precise question, we are guided in our decision making by the thoughtful and detailed opinions authored by the United States District Court of Pennsylvania. Specifically we refer to the decision in Toole v. Gould, Inc., 764 F.Supp. 985 (M.D.Pa. 1991). The Toole court sought to reconcile divergent opinions which appeared on this subject in prior decisions of the district court. See Lutz v. Chromatex, Inc., 725 F.Supp. 258 (M.D.Pa.1989) (Lutz II), Lutz v. Chromatex, Inc., 730 F.Supp. 1328 (M.D.Pa.1989) (Lutz III), (holding that a private cause of action does not exist explicitly or by implication under the Act.), and General Electric Environmental Services, Inc. v. Envirotech Corporation, 763 F.Supp. 113 (M.D.Pa.1991) (holding that a private cause of action exists under the Hazardous Sites Cleanup Act.) The Toole court ultimately accepted the result reached by the court in Envirotech and held that in keeping with the goal of the Act, to promote cleanup of hazardous waste sites, it was appropriate to infer from the words of the statute itself that a private right of recovery exists.

Critical to the Toole court’s decision, and ours, is the language of the Act. Chapter 11, entitled “enforcement and remedies,” refers to response costs in § 6020.1101. It provides, in part:

A release of a hazardous substance or a violation of any provision, regulation, order or response approved by the department under this act shall constitute a public nuisance. Any person allowing such a release or committing such a violation shall be liable for the response costs caused by the release or the violation.
35 P.S. § 6020.1101

In reference to this section the Toole court remarked: “No specific limitation as to who can sue for response costs under this provision is given nor does it distinguish between government versus private causes of action.” The scope of liability for such costs is set forth in § 6020.702.

(a) General rule. — A person who is responsible for a release or threatened release of a hazardous substance from a site as specified in section 701 [35 § 6020.701 “Responsible person”] is strictly liable for the following response costs and damages which result from the release or threatened release or to which the release or threatened release significantly contributes:
(1) Costs of interim response which are reasonable in light of the information available to the department at the time interim response action was taken.
(2) Reasonable and necessary or appropriate costs of remedial response incurred by the United States, the Commonwealth or a political subdivision.
(3) Other reasonable and necessary or appropriate costs of response incurred by any other person.
(4) Damages for injury to, destruction of or loss of natural resources within this Commonwealth or belonging to, managed by, controlled by or appertaining to the United States, the Commonwealth or a political subdivision. This paragraph includes the reasonable costs of assessing injury, destruction or loss resulting from such a release.
35 P.S. § 6020.702. (emphasis added.)

Particularly relevant to the issue before us is the language found in paragraph (3) which refers to the costs incurred “by any other person.” We accept the Toole court’s analysis on the significance of this language. The court stated:

In order to give every word or the statute its full meaning without obtaining an absurd or inconsistent result, the scope of section 702(a)(3) must give a “person” other than the government the right to recovery, otherwise, this section would be redundant and serve no useful purpose. We say “other than the government” since the prior two provisions of the statute allow for government recovery for interim [§ 702(a)(1) ] and remedial [§ 702(a)(2) ] response costs. Reading section 702(a)(3) as also authorizing government recovery for response costs would be repetitious and would not give sufficient meaning to this provision of the statute. Toole at 993.

This reasoning along with the discussion in Toole of the legislative intent and the purpose and scheme of the Act, causes us to agree that a private cause of action does exist under the HSCA

The trial court provided, as alternative reasoning for its ruling, that the Act did not apply in this situation because it became effective in 1988, long after the transfer of the property. We disagree and conclude that the provisions of the Act clearly include the seller as a person who is potentially responsible.

Section § 6020.702(a), cited above, refers to “A person who is responsible ... as specified in section 701.” That prior section is titled “Responsible person,” and it reads:

(a) General rule. — Except for releases of hazardous substances expressly and specifically approved under a valid Federal or State permit, a person shall be responsible for a release or threatened release of a hazardous substance from a site when any of the following apply:
(1) The person owns or operates the site:
(i) when a hazardous substance is placed or comes to be located in or on a site
(ii) when a hazardous substance is located in or on the site but before it is released; or
(in) during the time of the release or threatened release.
35 P.S.'§ 6020.701

The terms “owner or operator” are defined in the definitional section of the Act, 35 P.S. § 6020.103. It includes in its definition “A person who owns or operates or has owned or operated a site, or otherwise controlled activities at a site.” 35 P.S. § 6020.103. (emphasis added.) Thus, the clear language of the Act makes it apparent that it is meant to include, as responsible persons, those who have previously owned or operated a site.

The final matter which needs to be addressed concerning the viability of a cause of action brought under the Act is the seller’s suggestion that DER involvement is a prerequisite to any private action, and that certain procedural requirements of the Act must be complied with. Seller claims that DER involvement is mandated by Section 1301(a) of the Act which provides that an owner “shall not be subject of enforcement orders or the cost recovery provisions of this Act until the Department has instituted an administrative or judicial enforcement action ... and the owner ... has failed to comply.” 35 P.S. § 6020.1301(a).

Such an interpretation of the Act, which would require prior DER involvement even where recovery is sought by a private party, would frustrate the purpose of the Act. Those who take action to clean up hazardous sites would be penalized for acting promptly and not first awaiting enforcement action by the DER. Because the purpose of the Act is to promote cleanup of a site, we cannot accept an interpretation of this section which would be counterproductive to this goal. See Toole v. Gould, Inc., supra, and 35 P.S. § 6020.102 (Declaration of policy.)

Further, subsection (b) of § 6020.1301 reinforces our interpretation that the provisions of subsection (a) are meant to apply to cases where the DER is seeking recovery. It provides that “The department may not initiate enforcement orders nor apply the cost recovery provisions of this act” unless certain conditions exist. There is nothing in this section of the Act which would cause us to interpret it as applying when a private cause of action is brought for recovery.

We likewise reject seller’s claim that the buyers’ have failed to comply with procedural requirements of the Act found in § 6020.505 and 506. These provisions require the development of an administrative record (506) and the selection of a remedial response based upon that record (505). This same argument was presented before, and rejected by, the district court in Reading Co., v. City of Philadelphia, 823 F.Supp. 1218 (E.D.Pa.1993). We find the court’s reasoning persuasive on this matter:

Sections 505 and 506 are clearly designed to apply to the DER and are based on administrative law principles. To compel private parties to comply with detailed requirements obviously designed for an administrative agency seems patently absurd. For instance, section 506(f) requires ‘the department [DER]’ to ‘maintain a docket listing of all the items which form the administrative record’ and to ‘notify a person submitting a comment that it has been entered on the docket.’ 35 Pa.Stat.Ann. § 6020.506(f). There is no reason to force private parties to follow this directive.

Reading at 1244.

We agree, and hold that these sections were plainly meant only to apply to DER actions and have no bearing on private party cost recovery actions.

Accordingly, for these reasons we reverse the trial court’s ruling dismissing Count Nine of the Complaint and rule that the buyers may go forward with their action under the Hazardous Substances Cleanup Act.

Count Ten

Count Ten is labeled “Declaratory Judgment” and seeks to have the court declare that the seller is responsible for the payment of all future costs which may be necessary because of damage caused by the leaking tanks. The trial court dismissed this count because it found it to be dependant upon the other counts, none of which survived according to its reasoning. While we too find that Count Ten should be dismissed, we do so for a different reason. Recovery for past, present and future damages should be brought in conjunction with the specific claims which are to be presented before a jury. It is not appropriate to seek to recover for future losses in a separate declaratory judgment action.

Count Eleven

The final cause of action, pled in the Amended Complaint, seeks recovery under the Pennsylvania Storage Tank and Spill Prevention Act (STSPA), 35 P.S. § 6021.101 et seq. This Act was designed to prevent the occurrence of releases from storage tanks through a regulatory scheme, to provide liability for damages sustained as a result of a release and to require prompt cleanup. 35 P.S. § 6021.102(b). In Centolanza v. Lehigh Valley Dairies, Inc., 540 Pa. 398, 658 A.2d 336 (1995) it was held that a private right of action exists under the Pennsylvania Storage Tank and Spill Prevention Act to collect costs for cleanup and diminution in property value. However, the trial court in this case held that the buyers’ claim could not proceed because they did not allege that they complied with the written notice requirements of the Act. At issue is the language of Section 1305(d):

(d) Notice of private action. — No action pursuant to subsection (c) [private actions] may be commenced prior to 60 days after the plaintiff has given notice, in writing, of the violation to the department and to any alleged violator. 35 P.S. § 6021.1305(d).

Because it was found that the Complaint failed to aver that written notice of an alleged violation of the Act was provided to the DER or the seller 60 days prior to the commencement of the action, this count was dismissed.

The purpose of this notice requirement is to bring about a prompt cleanup. By requiring notification it is hoped that a cleanup program will begin before a private action is commenced in an effort to force such cleanup. However, in a case such as this, where the cleanup is being done by another, the property owner, no purpose is served by requiring notice. Subparagraph (e) of 35 P.S. § 6021.1305 recognizes that notice is not required in every situation. Where there exists an imminent threat to the health or safety of the plaintiff, or where the plaintiff’s legal interest would be immediately affected, an action may be commenced immediately upon written notification to the department. 35 P.S. § 6021.1305(e). As the trial court recognized, paragraph 16 of the First Amended Complaint does plead that the DER was notified of the contaminants and pollutants. The following paragraph states that the DER ordered the buyers to clean up the site. We conclude that the allegations of the Complaint are sufficient to allow Count Ten to go forward. Even if we were to rule otherwise, we accept the buyers’ position that they should have been allowed to amend their complaint to make the proper allegations.

The trial court also set forth as alternative grounds for its ruling that the demurrer should be granted because the seller was not the “owner” under the STSPA. The term owner is defined in Section 6021.103 as one who owned a storage tank “on or after November 8, 1984” or one who owned it “at the time all regulated substances were removed when removal occurred prior to November 8, 1984.” Because we have already discussed the question and have found that “ownership” of the tanks can not be determined at this stage of the proceedings, this basis for dismissal of Count Ten cannot be accepted.

Conclusion

In accordance with the above, we reverse the trial court’s ruling dismissing Counts One, Two, Three, Four, Five, Six, Eight, Nine, and Eleven of the buyer’s Complaint. Appellants must be permitted to proceed with these claims. Counts Seven and Ten, however, were properly stricken by the trial court and we affirm the court’s grant of a demurrer on these claims.

Affirmed in part, reversed in part. Case remanded for further proceedings. Jurisdiction relinquished.