text:
    520 A.2d 883
    Billy K. REDENZ, by his natural parents and guardians, Dennis REDENZ and Janet Redenz, Appellants, v. Bard ROSENBERG and Charlotte Rosenberg, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1986.
    Filed Jan. 30, 1987.

      William T. Jorden, Philadelphia, for appellants.
    Bruce A. Barrett, Assistant Public Defender, Meadville, for appellees.
    Before CIRILLO, President Judge, and ROWLEY and POPOVICH, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Crawford County, granting a motion for dismissal. We affirm.

On March 20, 1982, appellant, one year old Billy Redenz, burned his hand on a heater in a mobile home rented by his parents from appellees, Bard and Charlotte Rosenberg. At that time the statute of limitations for personal injuries was two years. See 42 Pa. C.S.A. § 5524. On March 20, 1984, the two year statute ran on appellant’s injury. Effective June 29 of that year, the legislature changed Pennsylvania law by providing that when a minor is injured the applicable statute of limitations does not start to run until the minor turns eighteen. See 42 Pa. C.S.A. § 5533. On November 22,1985, appellant filed his complaint in the above captioned matter, alleging that his injuries resulted from appellees’ negligence. After a hearing in limine, the trial court granted the appellees’ motion to dismiss. The court held that appellant’s cause of action arose under the old statute of limitations and thus was barred as of March 19, 1984, since that was two years from the date of his injuries. The court held that the statute was not tolled by appellant’s infancy because his claim was barred before the new tolling legislation became effective.

Appellant presents two issues for our review: (1) whether the legislation tolling the statute of limitations during minority applies retroactively to revive claims barred under prior law; and (2) whether the equitable discovery rule tolls the statute of limitations for a minor-plaintiff whose infancy causes him to be unaware of the cause of his injury.

As a general rule, a statute of limitations applies equally to minors and adults unless the statutory language expressly exempts infants. See 51 Am.Jur.2d Limitation of Actions § 182. Appellant was injured in 1982 and at that time the statute of limitations for personal injuries was two years. 42 Pa.C.S.A. § 5524. In Peterson v. Delaware River Ferry Co., 190 Pa. 364, 42 A. 955 (1899), the Supreme Court of Pennsylvania held that the Pennsylvania statute made no exceptions in favor of minors. Id., 190 Pa. at 365, 42 A. at 955. See also Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967); Walker v. Mummert, 394 Pa. 146, 146 A.2d 289 (1958). In 1978 the legislature emphasized that such was the law of Pennsylvania with a statutory declaration that:

Except as otherwise provided by statute, infancy, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter.

42 Pa.C.S.A. § 5533 (since repealed).

Effective June 29, 1984, this statute was amended to read:

§ 5533 Infancy, insanity or imprisonment.
(a) General rule. — Except as otherwise provided by statute, insanity or imprisonment does not extend the time limited by this subchapter for the commencement of a matter.
(b) Infancy. — If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced. Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter. As used in this subchapter the term “minor” shall mean any individual who has not yet attained the age of 18. Therefore, prior to June 29,1984 the statute of limitations

for personal injury actions was two years for adults and infants alike. However, under current law, the statute of limitations does not start to run until an injured child reaches the age of eighteen.

Appellant’s claim was barred on March 19, 1984, two years after his injury and three months prior to the change of law mandated by amended § 5533. Appellant requests that we allow his suit to proceed even though he did not file his claim until November, 1985. He asserts that amended § 5533 should apply retroactively and revive his previously barred claim.

In Maycock v. Gravely Corp., 352 Pa.Super. 421, 508 A.2d 330 (1986), a panel of this court considered a similar issue and concluded that the new statute should not be applied retroactively. Id., 352 Pa.Superior Ct. at 426, 508 A.2d at 333. The court cited The Statutory Construction Act which provides: “No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S.A. § 1926. The court then noted that “there is no clear and manifest intent by the General Assembly that 42 Pa.C.S.A. § 5533(b) be applied retroactively.” Maycock, 352 Pa.Super at 426, 508 A.2d at 333. The court also stated that as a general principle, “after an action has become barred by an existing statute of limitations, no subsequent legislation will remove the bar or revive the action.” Id., 352 Pa.Superior Ct. at 427, 508 A.2d at 334. See also Clark v. Jeter, 358 Pa.Super. 550, 518 A.2d 276 (1986). Therefore, appellant cannot rely on § 5533 to revive his barred claim and we must uphold the dismissal of his suit unless some other exception to the statute of limitations is applicable.

Applicant claims that the discovery rule is such an exception. However, for the following reasons it is inapplicable to this case. The discovery rule prevents the statute of limitations from commencing until the plaintiff knows or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct. Pastierik v. Duquesne Light Co., 341 Pa.Super. 329, 332, 491 A.2d 841, 842 (1985). The rule is an equitable provision created to protect plaintiffs who are unaware either that they have been injured or of who caused their injury. As our Supreme Court stated in Pocono Intern. Raceway v. Pocono Produce, 503 Pa. 80, 468 A.2d 468 (1983):

Thus, in a case of substantive injury in which, unknown to the plaintiff, the defendant removes coal from his land via access originating on the defendant’s land, the inability of the plaintiff, despite the exercise of diligence, to know of the trespass, tolls the running of the statute for no amount of vigilance will enable him to detect the approach of a trespasser who may be working his way through the coal seams underlying adjoining lands, and until such time as the plaintiff discovers, or reasonably should have discovered, the trespass, the running of the statute is tolled.
The salient point giving rise to the equitable application of the exception of the discovery rule is the inability, despite the exercise of diligence by the plaintiff, to know of the injury.

Id., 503 Pa. at 85, 468 A.2d at 471.

Appellant argues that we should apply the discovery rule to the instant case. He claims that because of his infancy he was unaware of who caused his injury. Therefore, the equitable discovery rule should toll the statute of limitations from commencing to run. We do not accept this argument, though we do admire counsel’s creativity and thoughtfulness.

As previously stated, the discovery rule provides that the statute is tolled until the plaintiff knows or should know (1) he has been injured, and (2) who caused the injury. Appellant does not dispute that when he burned his hand he was aware that he was injured. He claims only that as a very young infant he could not possibly have been aware of who or what caused the injury. He asserts that his limited analytical powers were incapable of connecting his burn with the heater or the persons responsible for the heater. However, Pennsylvania courts have consistently emphasized that the statute is tolled only if a reasonable person in the plaintiff’s position would have been unaware of the salient facts. See Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 292, 505 A.2d 973, 988 (1985). As the Burnside court stated: “The standard of reasonable diligence is an objective or external one that is the same for all individuals. It is not a subjective standard. It is a community standard.” Id., 351 Pa.Superior Ct. at 292, 505 A.2d at 988. Therefore, appellant’s own lack of knowledge is irrelevant. The statute may only be tolled if an ordinary, reasonable person who had been burned by a heater would be unable to determine the cause of his injury. Appellant makes no such claim and indeed such an assertion would border on the absurd. Any adult or child beyond infancy who burned his hand on a heater would know that the appliance caused his injury. Therefore, the statute began to run in this case as soon as the injury occurred. It does not matter whether a plaintiff is aware that someone may be legally responsible for his injury. Once he knows or should know the cause of that injury, he must investigate the situation and ascertain who might be legally culpable. Besardi v. Johns-Manville Corp., 334 Pa.Super. 36, 43-44, 482 A.2d 1067, 1071 (1984).

Appellant’s counsel has offered no reason why his client might have been unaware of the cause of the burn except that appellant possessed very limited mental powers at the time of the incident. However, these limited mental powers were the natural result of appellant’s infancy. In reality, appellant was- unaware of the cause of his injury because he was an infant. Yet, at the time he was injured our courts and legislature had each stated that infancy should not toll the running of the statute of limitations. See 42 Pa.C.S.A. § 5533; Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967). If we were to accept appellant’s argument we would be utilizing the discovery rule to subvert this principle. At the time of appellant’s injury, infancy did not toll the statute of limitations. No matter how ingeniously a litigant phrases his argument we will not allow him to circumvent this rule.

For the foregoing reasons, the order of the Court of Common Pleas of Crawford County is affirmed.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    520 A.2d 886
    Norman W. WALLEY and Earnestine E. Walley, His Wife v. Joseph IRACA, Joseph G. Iraca Coal Company, and Beverly Coal Mining Company, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1986.
    Filed Jan. 26, 1987.

      Ervin S. Fennell, Jr., DuBois, for appellants.
    Kim C. Kesner, Clearfield, for appellees.
    Before WICKERSHAM, BROSKY and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from the denial of post-trial relief in an action in equity. The issues raised by this appeal are: (1) did the chancellor in equity err in finding that appellants had not met their burden of proof in demonstrating the existence of a prescriptive easement over appellees’ property? (2) did the chancellor err in awarding punitive damages? Upon review of the record, we find that the evidence supports the chancellor’s findings, as well as the award of punitive damages, and accordingly affirm.

The factual background to this matter is rather lengthy and complex, but shall be summarized as briefly as possible. In 1946, appellant Joseph Iraca became the owner of certain coal and mining rights on a fifty (50) acre tract of property owned by Kenneth Fetzer; this tract was later conveyed to George and Buella Malinky, with Mr. Iraca’s rights intact. The Malinky property lies on the southeast border of a ninety-one (91) acre tract currently owned by appellees, Norman and Earnestine Walley. The Walleys acquired this tract in 1969 from Mrs. Walley’s father, John Earnest, who had held title to the tract since 1947.

Iraca claims that, in order to haul the coal he mined from the Malinky property, to Legislative Route 17077, on the northeastern boundary of the Walley property, he travelled upon a dirt road on the Walley property, which, he maintains began at the Malinky border, and proceeded northeast the entire length of the Walley property, intersecting at the northeast border with L. R. 17077. According to Iraca, his use of the dirt road began in 1948 or 1949, and continued without significant interruption until 1976, when Mrs. Walley’s cousin, James Earnest, and Grover Fleck commenced strip mining on the Walley property, and placed a cable across the road. Earnest and Fleck gave Mr. Iraca a key to the lock on the cable, and permitted Iraca to use the road, until the Walleys objected in 1982, and reported Iraca to the Pennsylvania Department of Environmental Resources (“DER”). DER ordered Iraca to cease hauling across the dirt road on the Walley property, and Iraca was forced to use an alternative hauling route across the Malinky property.

Iraca contends that he used the road in question between 1948 and 1976 whenever he chose, without asking permission, and, as such, had a prescriptive easement over the Walley property before the Earnest/Fleck mining operations ever began.

The Walleys maintain, on the other hand, that the road in question never extended as far as the Malinky border until the Earnest/Fleck operations in 1976, and that a two to three hundred foot section of so-called “roadway” between the Malinky border and the site of the 1976 operations, was virtually impassable due to trees and wilderness overgrowth until 1976.

At trial, Iraca presented expert testimony, which concerned certain aerial photographs and a topographical map from the 1950’s, which allegedly depicted the dirt road as extending to the Malinky border. The Walleys countered with eyewitness testimony that the dirt road fell short of the Malinky border, and that the so-called “roadway” leading from the border was, in all likelihood, telephone lines put in by Pennsylvania Electric Company. The same eyewitnesses also testified that they never saw the allegedly continuous mining operations by Iraca on the Malinky property until the 1970’s, and could not remember seeing Iraca on the Walley property until that time. Finally, these witnesses indicated that, though Iraca ceased hauling after the DER order, he continued to use the road for personal reasons.

The chancellor in equity found that Iraca had not acquired a prescriptive easement, but had willfully trespassed upon the Walley property. The chancellor granted a permanent injunction, compensatory damages for “wheelage,” and punitive damages. After the denial of timely post-trial motions, this appeal followed.

The scope of appellate review of a decree in equity is very limited. We are bound to accept the chancellor’s findings of fact, and shall not reverse absent a clear abuse of discretion, or an error of law. Dudash v. Dudash, 313 Pa.Super. 547, 552-553, 460 A.2d 323, 326 (1983); Frowen v. Blank, 493 Pa. 137, 142-143, 425 A.2d 412, 415 (1981). Moreover, where the chancellor’s findings are largely dependent upon the credibility of witnesses, the findings are entitled to particular weight, as the chancellor had the opportunity to observe the demeanor of the witnesses. Dudash, supra.

With respect to the first issue raised, the elements that must be established to prove an easement by prescription are well settled in the law. A prescriptive easement is created by (1) adverse, (2) open, (3) notorious, (4) continuous and uninterrupted use for a period of twenty-one (21) years. Dunlap v. Larkin, 342 Pa.Super. 594, 605, 493 A.2d 750, 756 (1985); Keefer v. Jones, 467 Pa. 544, 547, 359 A.2d 735, 736-737 (1976). Furthermore, the party asserting the easement must demonstrate the above elements by proof that is clear and positive. Adshead v. Sprung, 248 Pa.Super. 253, 256, 375 A.2d 83, 84 (1977).

This Court, upon review of the extensive transcript of testimony, cannot find that the chancellor erred in finding that appellants had not proved an easement by clear and positive evidence. As such, we do not find it necessary to reiterate the trial court’s resolution with respect to each element. We would only comment upon one argument raised in appellants’ brief, which we feel merits some discussion.

Appellants make mention of the chancellor’s finding that Mr. Iraca, on occasion, requested permission to use the Walleys’ dirt road, and, therefore, did not possess an “attitude or belief that such use was the exercise of a property right.” This finding was based upon certain testimony at trial, given by appellees, that Iraca phoned the Walleys in 1976, at their home in Florida, to request permission to haul coal across their property. When told he would have to pay wheelage, he refused to do so, and the Walleys denied permission for the hauling. Iraca denied at trial that the above phone conversation had ever taken place. Appellants now assert that, even had the chancellor chosen to believe the Walleys, the alleged request for permission occurred in 1976, or almost thirty (30) years after Iraca supposedly began to use the dirt road as he saw fit. As such, appellants maintain, any reliance the chancellor placed upon this alleged incident would be error, as the incident would have occurred after the twenty-one (21) year prescriptive period, and would have had no relevance. We disagree.

It is true that a landowner has the burden of proving the defense that the use of the alleged easement was under a grant of permission, contract, or special license. Tarrity v. Pittston Area School District, 16 Pa.Cmwlth. 371, 328 A.2d 205, 207 (1974); Loudenslager v. Mosteller, 453 Pa. 115, 117, 307 A.2d 286, 287 (1973). However, the burden of demonstrating this defense does not arise until the alleged easement holder has met his or her burden of proof that the use was adverse, open, notorious, and continuous for an uninterrupted period of twenty-one years. Tarrity, supra; Loudenslager, supra.

A review of the trial court opinion indicates that the chancellor did not consider the evidence of Iraca’s 1976 request as establishment, by appellees, of the defense of permission. Clearly, had appellees proffered the evidence for that purpose, it would have been insufficient as a matter of law, as the request did occur after the alleged prescriptive period had run. Rather, the chancellor viewed this evidence as bearing upon appellants’ establishment of one of the requisite elements for the creation of a prescriptive easement: continuity of use.

To establish continuity of use, the evidence need not show a constant, day-to-day use. Rather, continuity is established if the evidence shows “a settled course of conduct indicating an attitude of mind on the part of the user or users that the use is the exercise of a property right.” Keefer, supra, 467 Pa. at p. 548, 359 A.2d at p. 737.

The chancellor found the 1976 request relevant with respect to Iraca’s claim that he had always used the Walleys’ dirt road “with the attitude and belief” that his use was pursuant to a claim of right. We concur with the chancellor’s assessment of relevancy. The only testimony supporting Iraca’s claims came from Iraca himself; as such, his credibility was a material factor in the determination of continuity of use, or its absence, for the prescriptive period. The credibility of a witness may be impeached (1) by showing that, on a prior occasion, he made a statement inconsistent with his present testimony, (2) by competent evidence tending to show defects in memory, or (3) by contradictory testimony from other witnesses whose version of the facts differs from the witness being impeached. Commonwealth v. Baez, 494 Pa. 388, 394, 431 A.2d 909, 912 (1981); McCormick, Evidence, § 33 at 66 (2d ed.1972). This, of course, does not permit the impeachment of a witness on collateral matters; the grounds for contradicting a witness must be germane to the issues at trial. McGoldrick v. Pennsylvania R. Co., 430 Pa. 597, 600, 241 A.2d 90, 92 (1968). Clearly, any request for permission to use the road made by Iraca, whether in 1950 or 1976, would be inconsistent with his assertions on the stand that he had acted under claim of right during the prescriptive period. As such, evidence of the 1976 request, as derived from appellees’ testimony tended to seriously undermine Iraca’s credibility on a germane issue, i.e. his possession of the requisite attitude or belief in support of any alleged continuity of use, and was highly relevant.

Hence, we find that the chancellor’s consideration of the 1976 request was not error. We uphold the trial court’s determination that appellants did not meet their burden of proving an easement by prescription, and that the burden had not shifted to the appellees to demonstrate a grant of permission during the prescriptive period.

As for appellants’ challenge to the chancellor’s award of punitive damages, we, again, find no error. It is the law in Pennsylvania that punitive damages are awardable upon a showing that a defendant has acted with “reckless indifference to the interests of others.” Rhoads v. Heberling, 306 Pa.Super. 35, 38, 451 A.2d 1378, 1379 (1982). The trial court opinion states that appellants acted with “total and willful disregard of (appellees) right to absolute possession and control of their property.” Upon review of the record, we hold that the evidence at trial supports the chancellor’s finding, and that the award of punitive damages, as such, was not an abuse of discretion.

Order affirmed.

      . Initially, there is a question as to whether the current appeal is properly before us. Judgment was entered on March 8, 1986, while the appeal was not filed until April 22, 1986, or in excess of the thirty-day time limitation prescribed in Pa.R.A.P. 903(a). Appellees have not challenged the validity of the appeal on this basis. However, it is well settled that an appellate court may raise questions of appealability and jurisdiction sua sponte. Indiana Cty. Hospital Authority v. McCarl’s Plumbing and Heating Co., 344 Pa.Super. 226, 228, 496 A.2d 767, 768 (1985).
      At the time judgment was entered, appellants’ post-trial motions, excepting to the decree nisi, were still outstanding. As such, the March 8 entry of judgment was erroneous, and appellants were not required to file an appeal until the post-trial motions were decided. Murphy v. Brong, 321 Pa.Super. 340, 343-344, 468 A.2d 509, 511 (1983).
      The chancellor’s order denying appellants’ post-trial motions was not entered until March 31, 1986. Hence, pursuant to Murphy, supra, appellants had thirty days from the entry of the March 31 order to appeal. As the appeal was filed on April 22, it was timely filed, and this Court may address the issues raised on the merits.

      . Appellants are Joseph Iraca, in his own right, and two coal businesses in which Mr. Iraca has had an ownership interest.

      . "Wheelage” is the price paid to a landowner for the privilege of hauling coal over his or her land. It is calculated on a price per ton figure, which is negotiated on the basis of such factors as the road’s condition and the ease of hauling upon it.

      . R.R., at p. 410(a).

      . The Walleys were deeded the property in question in 1969, but have not been Pennsylvania residents since the 1950’s.

      . R.R., at p. 411(a).


text:
    520 A.2d 891
    METZ CONTRACTING, INC., Appellant, v. RIVERWOOD BUILDERS, INC. and Chance Associates, Inc.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1986.
    Filed Feb. 3, 1987.

      James H. McCune, Washington, for appellant.
    Philip A. Fabiano, Pittsburgh, for appellees.
    Before BROSKY, ROWLEY and POPOVICH, JJ.
   BROSKY, Judge:

This appeal is before us from an Order entered by the trial court dismissing appellant’s claim for inactivity of record and entering judgment in favor of appellee, Chance Associates, Inc.

The issue before us is whether appellant has shown good cause for inactivity of record for more than two years. We have scrutinized the briefs of the parties and the record, and we conclude that appellant’s contention lacks merit. Accordingly, we affirm.

Appellant initiated the instant action against appellee by praecipe for a writ of summons in equity on May 14, 1982. The writ issued the same day, and service was completed on June 9, 1982.

No further activity occurred in this matter until appellee filed its Petition to Show Cause why the case should not be dismissed with prejudice on January 17, 1986. A Rule to Show Cause why the matter should not be dismissed for unreasonable activity in accordance with Pa.R.J.A. 1901 was entered against appellant, returnable February 28, 1986. On that day, appellant filed its Complaint against appellee. A response to the Petition to Show Cause was also filed.

On March 31, 1986, the trial court entered its Order dismissing the instant case for inactivity of record and entered judgment in favor of appellee. This appeal followed.

Pennsylvania Rule of Judicial Administration 1901(a) authorizes disposition of inactive cases. The general policy espoused in subsection (a) is

to bring each pending matter to a final conclusion as promptly as possible consistently with the character of the matter and the resources of the system. Where a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter.

Similarly, the Comment following this Rule explains that it is designed to ease the administrative burdens of the judicial system by clearing the dockets of matters stalemated because of the parties’ failure to seek termination through dismissal or otherwise.

Subsection (b) of Rule 1901 delegates primary responsibility for implementation of subsection (a), supra, to the local rule-making authority of each Court of Common Pleas.

However, to protect the parties’ due process rights before entry of an order terminating a matter because of an unreasonable length of inactivity, Pa.RJ.A. 1901(c), mandates minimum standards of at least 30 days’ written notice for opportunity to be heard on the proposed termination in person or by mail to the affected parties or their counsel. Notice by publication is a permissible substitute where mail cannot be delivered or is returned undeliverable or where the matter evidences an inactive docket during the previous two year period. This subsection also provides for reinstatement upon good cause shown where the action has already been terminated after notice by publication.

' The promulgation of local rules for the Courts of Common Pleas is governed by Pa.R.C.P. 239 which, in subsection (b), provides that “[l]ocal rules shall not be inconsistent with any general rules of the Supreme Court or any Act of Assembly.” Furthermore, “[a] civil action or proceeding shall be dismissed for failure to comply with a local rule ... promulgated under Rule of Judicial Administration 1901.” Pa.R.C.P. 239(f).

Thus, any local rule of court adopted to dispose of cases remaining inactive on the docket for an unreasonably lengthy period of time must comport with the requisites of Pa.R.J.A. 1901(c). Taylor v. Oxford Land, Inc., 338 Pa.Super. 609, 488 A.2d 59 (1985), petition for allowance of appeal granted, 508 Pa. 425, 498 A.2d 833 (1985), (Allegheny County Common Pleas Court Rule 229(e) automatic termination provision inconsistent with Pa.R.J.A. 1901(c) notice requirement); accord Winger v. Crowthers, Inc., 353 Pa.Super. 369, 510 A.2d 355 (1986) (Chester County Common Pleas Court Rule 214.4); Cf. Davison v. John W. Harper, Inc., 342 Pa.Super. 560, 493 A.2d 732 (1985) (Delaware County Common Pleas Rule 227.2 requiring order to accompany post-verdict motions that trial testimony be transcribed mandates notice prior to dismissal of motions for non-compliance).

Instantly, appellee filed its Petition to Show Cause on January 17, 1986, and served a copy of this petition on appellant in advance of filing on December 6, 1985. Appellant filed its response to this petition. The rule was returnable on February 28, 1986, at which time a hearing was held, and an order dismissing for inactivity was entered. We are therefore satisfied that the petition/response/hearing procedure followed in the case at bar complied with the minimum standards set forth in Pa.R.J.A. 1901(c) and that dismissal under subsection (a) thereof was proper.

We note in the record before us the absence of any petition to reactivate. However, because we conclude that the procedure followed in the lower court satisfied the minimum notices standards of Rule 1901(c), supra, we will treat appellant’s response to appellee’s Petition to Show Cause as a request to reactivate to determine whether it meets the good cause threshold. Moore v. George Heebner, Inc., 321 Pa.Super. 226, 467 A.2d 1336 (1983).

In so doing, we acknowledge that our scope of review here is limited to ascertaining whether the lower court, in dismissing appellant’s cause of action for failure to prosecute within a reasonable time, committed an abuse of its discretion. We will not disturb that discretion absent a finding of manifest abuse thereof. Moore, supra, citing Gallagher v. Jewish Hospital Assn., 425 Pa. 112, 228 A.2d 732 (1967); see also, Comment following Pa.R.J.A. 1901. In this regard, our court has adopted a three-step analysis to be followed in determining whether dismissal is proper.

A Court may properly enter a judgment of non pros when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses.

Moore, supra, 321 Pa.Superior Ct. at 229, 467 A.2d at 1337, quoting James Bros. Lumber Co. v. Union Banking & Trust Co., 432 Pa. 129, 132, 247 A.2d 587, 589 (1968).

Since we consider appellant’s response to appellee’s Petition to Show Cause in the nature of a request to remove the dismissal, we are bound to apply the James Brothers criteria to the instant facts.

In determining upon whom the onus falls for diligent prosecution of a case, we conclude that the duty of going forward here fell upon appellant, especially in view of the long period of dormancy after the filing of the intial writ of summons and the consequent flurry of activity by appellant undoubtedly precipitated by appellee’s Petition to Show Cause, Moore, supra; Stringer v. Kaytes, 318 Pa.Super. 393, 465 A.2d 11 (1983). Consequently, it cannot be gainsaid that dismissal for reason of lengthy inactivity constituted an abuse of discretion.

Even if we were to hold that the notice requirements of Section 1901(c) had not been followed below, reinstatement would be improper, nonetheless, absent a reasonable explanation for the inactivity. Moore, supra.

Turning to the explanation proffered instantly (Appellant’s Answer to Petition to Show Cause, R. 36), appellant reasons that the original summons in equity was filed by prior counsel in 1982 and that new counsel prepared the Complaint which was filed in 1985 (but only after appellee’s Petition to Show Cause was heard and simultaneously with its (appellant’s) response thereto). We cannot, however, accept this bald assertion, without more, Moore, supra, as we note that the docket here does not even reflect that change, Wurster v. Peters, 318 Pa.Super. 46, 464 A.2d 510 (1983). It is wholly inadequate merely to assert that new counsel appeared on behalf of appellant after a three year void. Stringer, supra. Exasperation with counsel’s stewardship, in light of the long delay here, does not, standing alone, provide a sufficient basis for cause to reinstate. Stawiarski v. Hall, 300 Pa.Super. 67, 445 A.2d 1302 (1982). The mere neglect or inadvertence of counsel to proceed over a period of three years is inadequate to signify good cause for reinstatement. Moore, supra; Corcoran v. Florentino, 277 Pa.Super. 256, 419 A.2d 759 (1980).

The final element in our analysis concerning the propriety of dismissal of appellant’s action is the prejudicial effect, if any, of the delay upon appellee. Our determination of prejudice is not limited to the death or absence of a material witness contemplated by James Brothers, supra. Rather, if any substantial dimunition of a party’s ability to properly present its case at trial results, then prejudice can be said to have attached. American Bank & Trust Co. v. Ritter, Todd and Haayen, 274 Pa.Super. 285, 418 A.2d 408 (1980). Instantly, appellee argues that its ability to present factual information at trial may be substantially diminished because of potential inaccessibility of relevant records due to the bankruptcy status of the contractor for whom appellant allegedly performed excavation work on real property purportedly owned by appellee. We hold that these evidentiary difficulties are sufficient to grant dismissal. See Moore, supra.

Thus, in light of the purpose sought to be served by Pa.RJ.A. 1901, we conclude that the trial court did not abuse its discretion in ordering dismissal pursuant to the mandate of that Rule. Accordingly, we affirm.

Order affirmed.

      . The Sheriffs return indicates that appellee’s co-defendant in the lower court, Riverwood Builders, Inc., was not found when service of the summons in Equity was originally attempted on it. The record does not disclose any subsequent efforts to serve Riverwood. Therefore, since Riverwood was never a party to this litigation, the only appellee before us is Chance Associates, Inc.

      . The Sheriffs return dated June 8, 1982 indicates that service was made upon Creative, Inc., the entity which purportedly purchased appellee. Another return dated June 9, 1982, shows that a J. Harold Autenreath was also served. The record is silent concerning the relationship of Mr. Autenreath to appellee. In any event, appellee admits in its Petition to Show Cause why the case should not be dismissed that it was served with the writ on June 9, 1982. Also, an appearance for appellee was entered on December 3, 1985.

      . The record does not indicate how or if service of the complaint was effected upon appellee. However, in its brief to this Court, appellee does make reference to allegations in the Complaint.

      . This former Rule, revoked April 8, 1985, effective May 1, 1955, provided:
      Any matter pending in the Civil or Family Division in which there has been no activity of record for a period of two (2) years or more shall be terminated automatically by operation of law by reason of inactivity____ The matter may be reactivated by the Court upon petition for good cause shown after such notice as the court shall direct. The filing of a paper after automatic termination under this rule shall not reactivate the terminated matter.
      (Emphasis added).


author: WIEAND, Judge: JOHNSON, Judge,

text:
    520 A.2d 1177
    COMMONWEALTH of Pennsylvania, Appellee, v. Chris Lamont MICHAUX, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 4, 1986.
    Filed Jan. 12, 1987.
    Reargument Denied Feb. 20, 1987.

      Mark S. Galper, Monessen, for appellant.
    Judith K. Ciszek, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and JOHNSON, JJ.
   WIEAND, Judge:

Chris Lamont Michaux was convicted by a jury of burglary and criminal conspiracy and was sentenced to serve a term of imprisonment of not less than two nor more than four years. The conviction was based entirely upon circumstantial evidence, including evidence that a police bloodhound had tracked and identified Michaux as one of the perpetrators of the burglary. In this appeal, Michaux argues that (1) the evidence was insufficient to prove his guilt beyond a reasonable doubt; (2) the testimony that a bloodhound had trailed and identified him was inadmissible hearsay, the admission of which violated his right to confront witnesses against him; (3) the trial court erred in allowing the dog tracking evidence to be received because a proper foundation for the receipt of the evidence had not been laid; and (4) the trial court erred when it ruled that Michaux’s expert witness could not testify on the subject of dog tracking. Although these issues are novel and interesting, we conclude that the trial was free of error and the evidence sufficient to support the guilty verdicts. Therefore, we affirm the judgment of sentence.

During the early morning hours of February 9, 1984, Kayton J. Emerick observed three men enter the Brush and Hostoffer Appliance Store on Main Street in the Borough of Mount Pleasant. Emerick called the police, and Officer Richard McElfresh was dispatched to the scene. McElfresh arrived at the store , at or about 5:19 a.m. and stopped his vehicle behind a burgundy Chrysler parked directly in front of the store. McElfresh observed that the motor of the automobile had been left running and that the first three letters on the license plate were FWK. The last three digits of the license plate were covered by a rag. Shortly after McElfresh’s arrival, an individual exited the store carrying a television set. McElfresh was subsequently able to identify this person as Anthony Van Settle. When Van Settle saw the police officer, he dropped the television, shouted something in the direction of the store, and dove into the front seat of the Chrysler automobile. Two other men immediately ran from the store and entered the automobile, which then sped away. McElfresh did not get a good look at these two men, but did notice that they were wearing dark clothing. McElfresh pursued the vehicle for several miles, heading in a westerly direction on Route 31. He lost sight of the vehicle, however, when he was forced to slow his vehicle to negotiate a sharp curve in the vicinity of the Gulisek Construction Company. A short time later, McElfresh came upon the same vehicle, abandoned in a ditch not far from the construction company. The officer could see no one in the vicinity of the abandoned vehicle; however, he observed footprints in the snow leading toward a wooded area. McElfresh called for assistance; he requested specifically a bloodhound team from the Greens-burg Fire Department.

Approximately forty-five minutes later, the bloodhound team arrived and assumed control at the scene. Officer John Seighman of the Greensburg Fire Department scented his bloodhound, “Jake,” on the front seat of the Chrysler automobile. Jake then began to follow one of the three sets of footprints leading into the woods. When the footprints disappeared, Jake continued into the woods, through a group of thickly clustered pine trees, and back onto Route 81.

In the meantime, Officer McElfresh, who had remained at the abandoned car, observed an individual, later identified as Michaux, walking toward him on Route 31. McElfresh approached Michaux and, after observing that he had pine needles in his hair and weeds protruding from his collar, took him into custody. Shortly thereafter, Officer Seighman and his dog arrived back at the scene of the abandoned vehicle. They approached in the same direction from which Michaux had come. Jake sniffed several of the people present, but stopped when he came to Michaux and nosed him “like a vacuum cleaner.” Seighman interpreted this to mean that Jake had found the person whose scent he had been following.

In addition to this evidence, the Commonwealth produced the testimony of Kevin Hutchinson, the operator of a light truck which had been called to the scene. Hutchinson testified that he drove the light truck from the abandoned automobile toward Mount Pleasant, looking for the suspects along the road. Immediately beyond the group of pine trees, he had made a u-turn and had parked the truck along the side of the road. Hutchinson stated that no one had come toward him from the direction of Mount Pleasant during the time in which he was standing by his truck. Michaux, therefore, had made his appearance along the road at a point between Hutchinson and the abandoned Chrysler.

In Commonwealth v. Hoffman, 52 Pa.Super. 272, 279 (1912), this Court held that where a proper foundation has been laid, “testimony as to trailing by a bloodhound may be permitted to go to the jury for what it is worth, as one of the circumstances which may tend to connect the defendant with the crime with which he is accused.” This is in accord with the majority view. See: United States v. Carroll, 710 F.2d 164 (4th Cir.), cert. denied, 464 U.S. 1008, 104 S.Ct. 526, 78 L.Ed.2d 709 (1983); Hodge v. State, 98 Ala. 10, 13 So. 385 (1893); State v. Coleman, 122 Ariz. 130, 593 P.2d 684 (1978); Holub v. State, 116 Ark. 227, 172 S.W. 878 (1915); People v. Craig, 86 Cal.App.3d 905, 150 Cal.Rptr. 676 (1978); State v. Wilson, 180 Conn. 481, 429 A.2d 931 (1980); Cook v. State, 374 A.2d 264 (Del.1977); Starkes v. United States, 427 A.2d 437 (D.C.App.1981); Tomlinson v. State, 129 Fla. 658, 176 So. 543 (1937); Mitchell v. State, 202 Ga. 247, 42 S.E.2d 767 (1947); State v. Netherton, 133 Kan. 685, 3 P.2d 495 (1931); Daugherty v. Commonwealth, 293 Ky. 147, 168 S.W.2d 564 (1943); State v. Green, 210 La. 157, 26 So.2d 487 (1946); Roberts v. State, 298 Md. 261, 469 A.2d 442 (1983); Commonwealth v. LePage, 352 Mass. 403, 226 N.E.2d 200 (1967); People v. Harper, 43 Mich.App. 500, 204 N.W.2d 263 (1972); Hinton v. State, 175 Miss. 308, 166 So. 762 (1936); State v. Fields, 434 S.W.2d 507 (Mo.1968); State v. Taylor, 118 N.H. 855, 395 A.2d 505 (1978); People v. Centolella, 61 Misc.2d 723, 305 N.Y.S.2d 279 (1969); State v. Rowland, 263 N.C. 353, 139 S.E.2d 661 (1965); State v. Iverson, 187 N.W.2d 1 (N.D.), cert. denied, 404 U.S. 956, 92 S.Ct. 322, 30 L.Ed.2d 273 (1971); State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969 (1907); Buck v. State, 77 Okl.Cr. 17, 138 P.2d 115 (1943); State v. Harris, 25 Or.App. 71, 547 P.2d 1394 (1976); State v. Brown, 103 S.C. 437, 88 S.E. 21 (1916); Copley v. State, 153 Tenn. 189, 281 S.W. 460 (1926); Parker v. State, 46 Tex.Cr. 461, 80 S.W. 1008 (1904); State v. Bourassa, 137 Vt. 62, 399 A.2d 507 (1979); Epperly v. Commonwealth, 224 Va. 214, 294 S.E.2d 882 (1982); State v. Loucks, 98 Wash.2d 563, 656 P.2d 480 (1983); State v. McKinney, 88 W.Va. 400, 106 S.E. 894 (1921); Annotation, Evidence of Trailing by Dogs in Criminal Cases, 18 A.L.R.3d 1221, § 3 (1968). But see: People v. Pfanschmidt, 262 Ill. 411, 104 N.E. 804 (1914); Ruse v. State, 186 Ind. 237, 115 N.E. 778 (1917); State v. Grba, 196 Iowa 241, 194 N.W. 250 (1923); State v. Storm, 125 Mont. 346, 238 P.2d 1161 (1951); Brott v. State, 70 Neb. 395, 97 N.W. 593 (1903).

These courts are agreed that before evidence of dog trailing may be received, however, the training and reliability of the dog, the qualifications of the person handling the dog, and the circumstances surrounding the trailing by the dog must be shown. See: Annotation, supra at § 5. While the specific requirements differ in some respects from state to state, most courts are in substantial agreement that the proponent of the evidence must show that (1) the handler was qualified, both by training and experience, to use the dog; (2) the dog was adequately trained to track humans; (3) the dog, by virtue of experience, was reliable in tracking humans; (4) the dog was placed on track at a place where circumstances showed the guilty party to have been; and (5) the trail had not become so stale or contaminated that it was beyond the dog’s ability to follow. See: Orr v. State, 236 Ala. 462, 183 So. 445 (1938); State v. Coleman, supra; Holub v. State, supra; People v. Craig, supra; State v. Wilson, supra; Cook v. State, supra; Starkes v. United States, supra; Tomlinson v. State, supra; Mitchell v. State, supra; State v. Netherton, supra; Pedigo v. Com monwealth, 103 Ky. 41, 44 S.W. 143 (1898); State v. Green, supra; People v. Norwood, 70 Mich.App. 53, 245 N.W.2d 170 (1976); Hinton v. State, supra; State v. Steely, 327 Mo. 16, 33 S.W.2d 938 (1930); State v. Taylor, supra; People v. Centolella, supra; State v. Rowland, supra; State v. Iverson, supra; State v. Dickerson, supra; Buck v. State, supra; Commonwealth v. Hoffman, supra; Copley v. State, supra; Parker v. State, supra; State v. Bourassa, supra; Epperly v. Commonwealth, supra; State v. Louks, supra; State v. McKinney, supra.

Even where evidence of dog tracking is properly received, however, most courts hold that standing alone it is not sufficient to support a conviction. See: State v. Fixley, 118 Kan. 1, 233 P. 796 (1925); Meyers v. Commonwealth, 194 Ky. 523, 240 S.W. 71 (1922); State v. Green, supra; Terrell v. State, 3 Md.App. 340, 239 A.2d 128 (1968); People v. McPherson, 85 Mich.App. 341, 271 N.W.2d 228 (1978); Fisher v. State, 150 Miss. 206, 116 So. 746 (1928); State v. Cheatham, 458 S.W.2d 336 (Mo. 1970); Buck v. State, supra; State v. Taylor, supra; People v. Centolella, supra; State v. Yearwood, 178 N.C. 813, 101 S.E. 513 (1919); State v. Brown, supra; Copley v. State, supra; Annotation, supra at § 6. This was summarized by the Supreme Court of the State of Washington in State v. Loucks, supra, as follows:

Courts which allow dog tracking evidence regard its probative value with some suspicion. See generally Comment, Evidence-Admissibility in Criminal Prosecution of Evidence of Tracking by Bloodhounds Indicating Guilt of Accused, 9 Wash. & Lee L.Rev. 248, 251 (1952); 1 J. Wigmore, Evidence § 177, at 635-37 (3d ed. 1940). Most courts allowing dog tracking evidence restrict its use to corroborative purposes only. E.g., State v. Fixley, 118 Kan. 1, 5, 233 P. 796 (1925). In People v. McPherson, supra, the Michigan Court of Appeals stated that dog tracking evidence is cumulative only, and must be supported by corroborating evidence to sustain a conviction. McPherson, 85 Mich.App. at 344-45, 271 N.W.2d 228. See also 30 Am.Jur.2d Evidence § 1146 (2d ed. 1967).
The dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence identifying the accused as the perpetrator of the crime. Police dogs cannot be conclusively relied on to follow the trail of one individual if other human trails cross this one, or even come'near it. Craig, The Dog as a Detective, 18 Sci. Monthly 38, 39 (1924), cited in 1 J. Wigmore, Evidence, supra at 637. While a dog’s trainer may be available for cross examination, he obviously will be unable to answer many questions bearing on the reliability of the dog’s conclusions. Comment, 9 Wash. & Lee L.Rev. at 253-54. For a pungent analysis of the capability of tracking dogs see Brott v. State, 70 Neb. 395, 397-98, 97 N.W. 593 (1903).

Id., 98 Wash.2d at 567, 656 P.2d at 482.

Michaux contends that the dog tracking evidence in the instant case was not sufficiently corroborated and, therefore, that the evidence was insufficient to sustain his conviction. We disagree.

“In reviewing the sufficiency of the evidence, we view the evidence presented and all reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt.” Commonwealth v. Campbell, 353 Pa.Super. 178, 181, 509 A.2d 394, 395 (1986). See: Commonwealth v. Rivera, 349 Pa.Super. 303, 305, 503 A.2d 11, 12 (1985); Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229 (1984). When so viewed, we conclude that the evidence in the instant case was adequate to prove Michaux’s guilt.

Officer McElfresh testified that shortly after his arrival at the scene of the reported burglary, he observed three men run from the store and enter a burgundy Chrysler automobile. When the vehicle sped away, McElfresh pursued it. Although McElfresh lost sight of the vehicle a few times during his pursuit, his testimony was adequate to establish that the automobile which he found a few minutes later, abandoned along the side of the road, was the vehicle which had been used by the burglars and that the suspected burglars were the last persons to have occupied the vehicle. Our inquiry, therefore, must be whether the Commonwealth’s evidence was sufficient to prove beyond a reasonable doubt that Michaux had been one of the occupants of the abandoned vehicle.

The evidence provided by the bloodhound which linked appellant to the abandoned vehicle was not uncorroborated. The bloodhound had followed Michaux’s scent from the front seat of the abandoned vehicle, through a wooded area, and into a group of closely clustered pine trees. Officer Seighman testified that the clump of pine trees had been very difficult to pass through because of the fullness of the low hanging branches. Nonetheless, the dog followed the scent through the pine trees, back onto the road and along the road to Michaux, who by this time had returned to the abandoned automobile. The evidence was also that Michaux had been observed walking along Route 31 toward the abandoned automobile. The bloodhound followed the same route. Moreover, when taken into custody, Michaux had pine needles in his hair and weeds protruding from his collar. This evidence, taken in conjunction with Kevin Hutchinson’s testimony that he had observed no one walking along Route 31 on the other side of the pine trees and toward them, permitted an inference that Michaux had emerged from the clump of pine trees and entered the roadway from where he took the same route followed by the bloodhound to return to the Chrysler vehicle. These facts, although not conclusive, established sufficient corroboration of the dog tracking evidence to permit a jury to conclude that the evidence provided by the dog was reliable. Once the reliability of the dog tracking evidence was established, the jury could properly rely upon it to find that appellant had been one of the persons who had been inside the vehicle previously observed speeding away from the site of the burglary.

There were additional circumstances which the jury was entitled to consider. Appellant was found walking in a rural area of Westmoreland County, forty miles from home, at 6:00 in the morning. He was wearing dark clothing, as were the men who had been observed running from the appliance store; and both he and Anthony Van Settles, who was also found near the abandoned automobile and who was positively identified at trial as one of the men who Officer McElfresh had seen running from the store, were shown to have resided two blocks from each other in Fayette County. After considering all of the Commonwealth’s evidence, we conclude that it was adequate to support the jury’s finding that appellant was one of the burglars.

“Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.” Commonwealth v. Cassidy, 315 Pa.Super. 429, 433, 462 A.2d 270, 272 (1983). See: Commonwealth v. Perry, 279 Pa.Super. 32, 37-38, 420 A.2d 729, 732 (1980); Commonwealth v. Rhodes, 272 Pa.Super. 546, 554, 416 A.2d 1031, 1035 (1979); McCormick on Evidence, § 246 (3d ed. 1984). Michaux contends that the trial court erred when it permitted Officer Seighman to testify as to the dog’s actions, because such testimony constituted hearsay. In essence, he contends that the dog was the real witness, and that the officer’s testimony regarding the dog’s identification was hearsay. We reject this contention. “It is the human testimony that makes the trailing done by the animal competent; and [the dog’s] actions are described by human testimony as it would describe the operations of a piece of intricate machinery.” State v. Dickerson, supra, 77 Ohio St. at 69, 82 N.E. at 976. See: Starkes v. United States, supra; State v. Davis, 154 La. 295, 97 So. 449 (1923); Terrell v. State, supra. Officer Seighman testified to his and the dog’s training; to the conduct which he observed as the dog trailed Michaux; and to his interpretations of this conduct. Seighman was present in court and was extensively cross-examined by defense counsel. The testimony which he gave did not constitute hearsay.

Michaux’s contention that the Commonwealth failed to lay a proper foundation for the admission of the dog tracking evidence in the instant case is also lacking in merit. Officer Seighman testified extensively as to his training and qualifications as a trainer and handler of bloodhounds. He stated that he had been a trainer and handler of bloodhounds since 1975 and that during the interim period he had participated in numerous training programs designed to train and test dogs and handlers in tracking human scents. He produced, and the trial court received, numerous certificates which he had earned by participating in such courses. The officer also testified that he had been involved in numerous trackings of humans by bloodhounds which had been successful. His testimony was clearly sufficient to establish his qualifications as an expert dog handler. Seighman also testified in detail as to the methods used to train “Jake” in tracking human scents and described actual situations in which the dog had successfully tracked humans. We hold, therefore, that the training and reliability of the dog in question were satisfactorily established.

Finally, the evidence established that the dog had been scented at a place where the burglars were known to have been, i.e., the abandoned automobile, and that the trail had not become stale or contaminated. Thus, the Commonwealth was able to lay an appropriate foundation for the admission of Officer Seighman’s testimony regarding the dog’s trailing and identification of Michaux.

Michaux also contends that the trial court erred by ruling that his witness could not testify as an expert unless it were shown that the witness had conducted experiments concerning the ability of dogs to trail and identify humans by their scent. An examination of the record reveals, however, that the trial court made no such ruling. After an extensive discussion had been held at side bar and in chambers regarding the substance of the witness’ testimony, as well as his qualifications, the trial judge indicated that he was inclined to rule that the witness could not testify about a subject with which he had no first hand experience. However, the court adjourned for lunch without making a final ruling on the issue. During the lunch hour, defense counsel excused the witness without waiting for a definitive ruling by the court. As a result, no ruling was ever made. Under these circumstances, Michaux cannot contend successfully that the trial court refused to permit the witness to testify. The record shows, rather, that counsel abandoned his attempt to present the witness’ testimony and excused the witness without attempting to qualify him as an expert.

The judgment of sentence is affirmed.

JOHNSON, J., files a concurring opinion.

JOHNSON, Judge,

concurring:

I agree with the majority opinion that since the witness is the handler and not the dog, and since the handler was subject to cross-examination and confrontation, appellant’s claim of inadmissable hearsay is meritless. There was no 6th Amendment violation.

I also agree, as correctly pointed out by the distinguished trial judge, the Honorable Charles H. Loughran, that appellant has not preserved his claim concerning alleged trial error in refusing to permit defendant’s expert to testify. As the record establishes, the defense sent the expert home without calling him to the stand, and without a ruling having been made. The issue is thus waived.

I join in the majority opinion’s determination that a complete and proper foundation was laid for the dog handler’s testimony and that the training and reliability of the dog in question were satisfactorily established.

Although the majority opinion does not appear to directly address the issue, I also agree with the distinguished trial judge that the pre-trial suppression motion judge did not commit error in refusing to suppress testimony pertaining to the trailing and identification of the defendant by a bloodhound. Judge Loughran correctly determined that these issues were not matters of evidence obtained in violation of defendant’s rights but are properly matters for the trial court.

My disagreement with the majority opinion relates only to the analysis concerning the sufficiency of the evidence and the weight to be accorded the testimony as to trailing by a bloodhound.

The majority opinion would permit an inference that dog tracking evidence must be sufficiently corroborated by other, independent facts before a jury may be permitted to consider such evidence as reliable. Since the facts of this case do not require us to consider whether evidence of dog tracking, standing alone, is sufficient to support a conviction, I cannot join so much of the majority opinion as seems to address itself to that issue.

In Commonwealth v. Hoffman, 52 Pa.Super. 272, 279 (1912), this court set forth the criteria for admission of dog tracking evidence in Pennsylvania:

In order to make such testimony competent, even when it is shown that the dog is of pure blood, and of a stock characterized by acuteness of scent and power of discrimination, it must be established that the dog in question is possessed of these qualities, and has been trained and tested in their exercise, in the tracking of human beings, by a person who has knowledge and experience in such a matter, and that the test was made by starting the dog at a point where the circumstances tend clearly to show that the alleged guilty party had been, at a time when his presence would instinctively be known to the dog. When so indicated, testimony as to the trailing by a bloodhound may be permitted to go the the jury for what it is worth, as one of the circumstances which may tend to connect the defendant with the crime with which he is accused. It is a circumstance, and the weight to be given to it depends upon the other facts in the case.

The Hoffman court went on to say, 52 Pa.Super. at 280:

The defendant presented a point (seventh assignment) “unless the jury find there is sufficient evidence outside of that furnished by the bloodhound, they will not be justified in convicting the defendant,” was properly refused as it was for the jury to consider that testimony in connection with all the other evidence. It was not conclusive in and of itself, but could be considered as any other circumstance in the case, that was legitimately in evidence.

I find the facts and the law set forth in Hoffman to be sufficient to permit us to decide the case presently before us without resort to the positions taken on this issue in other jurisdictions. Appellant does not ask us to overrule Hoffman, nor would that be appropriate for this three-judge panel.

In its Brief before this court, Appellant argues that the sole evidence linking him to the commission of the crimes charged is testimony as to the tracking and identification of the appellant by a bloodhound. Appellant goes on to argue that “the absence of further corroborating evidence” renders the dog tracking evidence insufficient to provide a basis for his conviction. Brief for Appellant, Summary of Argument, at 16. The majority accepts this assertion suggesting the need for corroborating evidence in the analysis. I believe this to be a misleading approach to the proper resolution of the sufficiency question. It places undue emphasis and primacy on the dog tracking testimony which, in my view, is not required or even suggested under Hoffman.

The Hoffman court expressly stated that testimony as to the trailing of a bloodhound may be permitted to go to the jury for what it is worth, as one of the circumstances which may tend to connect the defendant with the crime with which he is accused. The court points out that it is a circumstance which could be considered along with all other circumstances and the weight to be given it depends upon the other facts in the case.

The Commonwealth presented evidence which established that two men from the same area of Fayette County were found in close proximity many miles from home at 6:00 A.M. along a rural highway in Westmoreland County. The defendant was found outside a stand of pine trees. He had pine needles in his hair and weeds protruding from his collar. The car which had been used in the burglary had been pursued from the crime scene by a police officer who came upon the car in a ditch near the stand of pine trees. A set of footprints led from the car into the stand. Testimony of one witness indicated that the defendant had not been proceeding down the road for any appreciable distance prior to his apprehension near the stand.

I agree with Judge Loughran’s conclusion that, without regard to the dog tracking evidence, “either defendant fell from the sky onto this desolate patch of highway (Route 31) or he came from inside the stand of pines where he had been hiding.” Opinion by Loughran, J., July 2, 1985, page 16.

In my view, all of the evidence presented and the reasonable inferences deducible therefrom in the present case are sufficient to prove guilt beyond a reasonable doubt. It was for the jury to determine what weight, if any, would be given to the evidence relating to the tracking by a bloodhound.

I, therefore, concur in the result reached by the majority.

      . Emerick died prior to trial. However, the testimony which he had given at the preliminary hearing was read to the jury at trial as part of the Commonwealth’s evidence. The only description which Emerick had been able to give of the burglars was that they were about eighteen to twenty years old.


author: HOFFMAN, Judge:

text:
    520 A.2d 1184
    COMMONWEALTH of Pennsylvania v. Darryl ANDERSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 1, 1986.
    Filed Feb. 2, 1987.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

      Before TAMILIA, HOFFMAN, and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for burglary. Appellant contends that the trial court erred in denying his motion to suppress out-of-court and in-court identifications and physical evidence because (1) his arrest was unsupported by probable cause; (2) the out-of-court identification procedure was unduly suggestive. We agree that appellant’s arrest was unsupported by probable cause and that his motion to suppress should have been granted in regard to the out-of-court identification and the physical evidence. We disagree that the in-court identification also should have been suppressed. Because illegally obtained evidence was used against appellant, the judgment of sentence is reversed and a new trial is awarded.

At 10:00 a.m. on the morning of April 25, 1983, the complainant heard noises coming from a second floor room in his house in West Philadelphia. He went to the room, and observed a black male attempting to pry open the window. The complainant stepped out of the room momentarily, returning with a shotgun which he trained on the perpetrator. Seeing the weapon, the perpetrator — who had not succeeded in entering the room — fled. The entire episode lasted ten to fifteen seconds. After the complainant contacted the police, the police radio broadcast the following description: black male, dark complexion, blue sweatshirt, about eighteen to twenty years old with close cropped hair. The police subsequently brought, over a period of two hours, five suspects to the complainant’s home for identification. He failed to identify any. During the course of this procedure, the complainant told police that the suspects did not match the description he had originally given when he reported the crime. He then supplemented the police description with the following facts: the suspect was taller than 5'8" to 5'9" and that the sweatshirt zipped up the front and had a red stripe running down the arms. With the supplement, and over two hours after the crime occurred, police observed appellant standing on a street corner approximately two blocks from the scene of the crime. Appellant was over 6' tall and wore a sweatshirt matching the description given by the complainant. Police approached appellant and transported him to the scene of the crime where the complainant identified him as the perpetrator.

Appellant filed a pre-trial motion to suppress the out-of-court identification and the sweatshirt as fruits of an illegal arrest. The trial court denied the motion, ruling that there was probable cause to arrest appellant when he was picked up on the street corner. Appellant was then tried without a jury. At that trial he was again identified by the complainant. Appellant was convicted of burglary and sentenced to four-to-twenty-three months incarceration. This appeal followed.

Appellant contends that the trial court erred in denying his motion to suppress the out-of-court and in-court identifications and the sweatshirt. He argues that, as his arrest was not supported by probable cause, the above evidence should have been suppressed as fruits of the illegality. We agree that appellant’s arrest was not supported by probable cause and therefore hold that the trial court erred in denying his motion to suppress the out-of-court identification and the sweatshirt. We disagree, however, that the in-court identification should have been suppressed.

To be constitutionally valid, a warrantless arrest must be supported by probable cause. Commonwealth v. Voss, 333 Pa.Superior Ct. 331, 339, 482 A.2d 593, 598 (1984). Probable cause for arrest exists when the facts at the time of arrest would warrant a prudent person in believing that a criminal offense had been committed, and that the suspect was the perpetrator of the offense. Commonwealth v. Woodson, 342 Pa.Superior Ct. 392, 395, 493 A.2d 78, 79 (1985). While information sufficient to establish probable cause cannot be defined to a mathematical certainty, this Court has recognized certain factors as helpful to that determination. In Commonwealth v. Woodson, supra, we held that the defendant’s proximity to the scene of the crime, the correspondence of his appearance to the victim’s detailed description of the intruder, his attempt to evade the police, and his unsubstantiated explanation for his presence in the alley behind the victim’s house, taken together provided the police officer with probable cause to arrest. Id., 342 Pa.Superior Ct. at 396, 493 A.2d at 80. In Commonwealth v. Williams, 317 Pa.Superior Ct. 456, 465, 464 A.2d 411, 415 (1983), we held that the defendant’s matching of the description given by the victim, his proximity to the scene of the crime both in time and place and his attempt to flee all provided the police with probable cause to arrest. See also Commonwealth v. Derrick, 322 Pa.Superior Ct. 517, 532, 469 A.2d 1111, 1119 (1983) (flight in and of itself is not sufficient to establish probable cause, but flight coupled with some other fact may be sufficient); Commonwealth v. Bridgeman, 310 Pa.Superior Ct. 441, 447, 456 A.2d 1017, 1020 (1983) (officer’s observance of goods in defendant’s car matching description of stolen goods, defendant’s failure to produce owner’s card for the car or a reasonable explanation for its absence constituted probable cause for arrest); Commonwealth v. Ryan, 253 Pa.Superior Ct. 92, 100, 384 A.2d 1243, 1246 (1978) (the defendant’s proximity to the scene of the crime both in time and place, and his fast paced walking away were insufficient to provide probable cause for arrest).

Here, appellant matched the general description provided by the complainant. He did stand over 5'9" tall and wore a blue sweatshirt with a zipper up the front and red stripes down the sleeves. N.T. August 3, 1983 at 32. He was observed standing on a street corner two blocks away from the scene of the crime over two hours after it had occurred. Id. at 33. There is, however, no evidence that appellant was acting suspiciously or that he tried to flee or evade the police. Unlike those cases cited above where we have found facts sufficient to establish probable cause, the only basis for such a determination in this case was appellant’s similarity to the general description provided by the victim. We hold that this similarity, taken by itself, was not enough to provide the police with sufficient facts establishing probable cause to arrest.

The Commonwealth urges us to accept the proposition that when appellant was initially approached by the police officers and then transported to the scene of the crime for identification by the victim, he was not under arrest but rather detained for investigatory purposes pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny. It therefore concedes that no probable cause existed at the time appellant was initially detained. Rather, it maintains that the less stringent standard recognized under Terry, i.e. that the officers had a reasonable suspicion to believe that appellant had committed a crime, be applied to the conduct of the police at the time of the original detention and transportation. We reject this argument.

In reaching this determination, we are guided by our Supreme Court’s decision in Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). In Lovette, police officers detained the appellant for investigatory purposes and then transported him to the scene of the crime where he was identified by the victim. In ruling that this procedure went beyond the investigatory nature of a Terry stop, the Supreme Court noted:

[I]t is clear that the placing of appellant and his companions in the police vehicle for the purpose of transporting them to the scene of the offense, without their consent, constituted an arrest as that term has been defined under our cases. It is equally true that police action was a seizure of the person within the meaning of the Fourth Amendment of the federal constitution.

Id., 498 Pa. at 672, 450 A.2d at 979 (citations omitted). Thus, the transportation of appellant, without his consent, moved the detention beyond the boundaries of an investigatory stop pursuant to Terry and into an arrest requiring conformance to the probable cause standard.

As we have determined that appellant was under arrest at the time that he was initially detained and transported to the scene of the crime and that probable cause did not exist at the time of that arrest, we must next determine whether the subsequent out-of-court and in-court identifications, along with appellant’s sweatshirt, should have been suppressed as derived from the illegal arrest. In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the United States Supreme Court ruled that evidence arrived at by the exploitation of an illegal arrest is tainted by the illegality of the arrest and is therefore inadmissible against the defendant. This “fruit of the poisonous tree” doctrine has been recognized by our Supreme Court as compelling the suppression of a victim’s out-of-court identification and physical evidence confiscated from the defendant since both were arrived at pursuant to an illegal arrest. Commonwealth v. Lovette, supra, 498 Pa. at 677, 450 A.2d at 981; Commonwealth v. Nelson, 488 Pa. 148, 152, 411 A.2d 740, 741 (1980). See also Commonwealth v. Hook, 313 Pa.Superior Ct. 1, 7, 459 A.2d 379, 382 (1983). Because the out-of-court identification and appellant’s sweatshirt clearly flowed from the illegal arrest they should have been suppressed as fruits of that illegality. Therefore, the trial court erred in ruling them admissible.

The principle underlying our ruling that the out-of-court identification and the sweatshirt should have been suppressed, i.e. that the Commonwealth should not benefit from its illegal actions, does not compel a similar result regarding the admissibility of the in-court identification. Such subsequent identifications may be admissible if the Commonwealth can show, by clear and convincing evidence, that there was a basis for the identification independent of the illegal activities. Commonwealth v. Jones, 324 Pa.Superior Ct. 359, 362, 471 A.2d 879, 880 (1984). Criteria relevant in determining whether the Commonwealth has met this burden include evidence concerning the circumstances under which the witness viewed the actual crime, his or her degree of attention, the accuracy of the description originally given to the police, and the level of certainty the witness displayed in identifying the defendant at trial. Commonwealth v. Green, 321 Pa.Superior Ct. 246, 253, 467 A.2d 1346, 1349 (1983).

Here, the victim testified that he had observed the perpetrator as he attempted to break into his house for approximately ten to fifteen seconds. N.T. supra at 9. Part of this time the victim looked at the perpetrator through the gunsight of a shotgun. Id. Additionally, the victim corrected the police officers after they brought five other suspects to his house for identification purposes, pointing out that they did not meet his description. Id. at 12. At trial, the victim displayed no hesitation in identifying appellant. Id. at 10. We therefore hold that the in-court identification had a basis sufficiently independent from the illegal activities so as to render it admissible.

As we have concluded that the trial court erred in finding that appellant’s arrest was supported by probable cause, and in admitting the out-of-court identification and the sweatshirt, we must next determine the remedy. An error by a trial court, whether involving state or federal constitutional law, “can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless.” Commonwealth v. Story, 476 Pa. 391, 405-06, 383 A.2d 155, 162 (1978). An error is harmless only if the appellate court determines that it “could not have contributed to the verdict.” Id., 476 Pa. at 409, 383 A.2d at 164. “Whenever there is a ‘reasonable possibility’ that an error ‘might have contributed to the conviction’, the error is not harmless.” Id. (citations omitted). An error may be harmless if the “properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict.” Id., 476 Pa. at 413, 383 A.2d at 166. This analysis is closely tied to the facts of the case and requires an examination of the entire record. Id., 476 Pa. at 413 n. 24, 383 A.2d at 166 n. 24. For an error to be harmless because of overwhelming evidence, the “untainted evidence relied upon must be uncontradicted.” Id., 476 Pa. at 413, 383 A.2d at 166 (footnote omitted). “Unless the evidence is uncontradicted a fair minded juror may well choose to credit the defendant’s rather than the Commonwealth’s evidence.” Id., 476 Pa. at 415-16, 383 A.2d at 167. The requirement that evidence be uncontradicted can be traced to the function of appellate courts: “An appellate court is ill equipped to resolve conflicts in the evidence or make findings of fact.” Id., 476 Pa. at 416, 383 A.2d at 168. Were the appellate court to assume this role, it would usurp the fact-finder’s function. Id. Therefore, courts have been reluctant to find errors harmless on the basis of overwhelming evidence. Id., 476 Pa. at 413, 383 A.2d at 166.

Here, a review of the record convinces us that the admission of the out-of-court identification and the sweatshirt was not harmless beyond a reasonable doubt. The Commonwealth built its case primarily upon three pieces of evidence; the out-of-court identification, the sweatshirt, and the in-court identification. Appellant presented an alibi defense which contradicted the Commonwealth’s evidence. N.T. supra at 56-64. We cannot say that the erroneous admission of two of the Commonwealth’s three key pieces of evidence constituted harmless error. Without the out-of-court identification and the sweatshirt the evidence against appellant is not so overwhelming so as to compel us to find that the admission of the illegally obtained evidence was harmless. Absent the out-of-court identification and the sweatshirt, the trier-of-fact was left to decide between appellant’s alibi and the in-court identification provided by the victim. Because we believe that there is a reasonable possibility that the trier-of-fact may have relied upon the inadmissible evidence, the error was not harmless beyond a reasonable doubt. We, therefore, conclude that the judgment of sentence must be reversed and appellant be awarded a new trial.

Judgment of sentence reversed. A new trial is ordered.

      . The Terry standard was first adopted in Pennsylvania in Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). For an overview of the development of the Terry exception here see Note New Application of Terry Stop and Frisk Standard, 59 Temple L. Quar. 695 (1986).

      . The Commonwealth argues that the rule set out in Lovette has somehow been relaxed. We can find no evidence to support this assertion. See Commonwealth v. Petrino, 332 Pa.Superior Ct. 13, 23, 480 A.2d 1160, 1165 (1984) (distinguishing Lovette on the grounds that the suspect consented to being transported to the scene of the crime for an identification); Commonwealth v. Hook, 313 Pa.Superior Ct. 1, 7, 459 A.2d 379, 382 (1983) (seizure of physical evidence suppressed under the Lovette standard).

      . As we have ruled that the out-of-court identification should have been suppressed as a fruit of the poisonous tree of the illegal arrest, we need not reach appellant’s second issue concerning the allegedly suggestive nature of the identification.


author: CIRILLO, President Judge:

text:
    520 A.2d 1189
    COMMONWEALTH of Pennsylvania v. Steven H. EWANSIK, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1986.
    Filed Feb. 2, 1987.

      Stanley W. Greenfield, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CIRILLO, President Judge, and ROWLEY and POPOVICH, JJ.
   CIRILLO, President Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Allegheny County. Following a trial by jury, appellant was convicted of homicide by vehicle, 75 Pa.C.S. § 3732. Post-trial motions were denied, and appellant was sentenced to eleven and one-half to twenty-three months’ imprisonment, and probation for three years following parole. We reverse and remand for a new trial.

The first issue appellant presents for our consideration is whether the trial court erred in refusing to instruct the jury in accordance with this Court’s decision in Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212 (1985), appeal granted, 509 Pa. 535, 505 A.2d 251 (1986). The trial court, in refusing appellant’s points for charge based upon Heck, stated: “I don’t particularly like the [vehicular homicide] law, but I am convinced that the Appellate Courts are not going to strike this law down, and I just don’t think that Heck is ultimately going to hold water. So I’m not going to follow it in charging the jury.”

In Heck, a unanimous panel of this Court held that a conviction for vehicular homicide based upon a defendant’s ordinary negligence in violating a traffic law, where the violation was neither knowing nor criminally negligent, violates the due process clause of our Constitution. Therefore, in order to convict someone of vehicular homicide, the Commonwealth must prove that the defendant acted in a criminally negligent fashion. We defined criminal negligence as:

criminal negligence involves a gross deviation from reasonable care such that it would be shocking to allow the actor’s lack of awareness to excuse his actions in the circumstances. The criminally negligent act has been done so heedlessly, so indifferently, and so grossly contrary to common experience that it becomes intolerable to reasoning minds that the actor did not perceive the risk of harm created by his conduct. In such cases the law presumes wantonness even though the circumstances do not allow proof beyond a reasonable doubt of the actor’s subjective awareness of wrongdoing. “Criminal negligence” is a breach of duty so flagrant in the circumstances that we may safely indulge the legal fiction that it was committed with actual intent to injure; it is far from mere ordinary negligence or inadvertence; it is “great” negligence incompatible with a proper regard for human life.

Heck, 341 Pa.Super. at 209-10, 491 A.2d at 225 (citations omitted).

On the basis of our holding in Heck, the trial court was required to charge the jury on the applicable standard of care, criminal negligence. However, because of the judge’s disagreement with the Heck decision, and because he felt that the case would eventually be reversed, he refused to so charge the jury. This is clearly error.

It has long been the law of this Commonwealth that: a lower court has no right to ignore the latest decision of the Superior Court of this Commonwealth on an issue which has been squarely decided. Until that decision should be over-ruled by the Superior Court itself or over-ruled by the Supreme Court, it is still the law of this Commonwealth, regardless of the decisions of any other court in the country, including the Federal courts.

Townsend Trust, 349 Pa. 162, 168, 36 A.2d 438, 441 (1944) (per curiam); accord Commonwealth v. Acquaviva, 187 Pa.Super. 550, 145 A.2d 407, aff'g per curiam 14 Pa.D. & C.2d 285 (Lawrence County Ct. Quarter Sess.1958), appeal dismissed, (Pa. Jan. 13, 1959); see also Baker v. Aetna Casualty & Sur. Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982), appeal denied, (Pa. Dec. 29,1983). The trial judge’s disagreement with a particular rule of law, or belief that a decision which is currently the law of Pennsylvania might be reversed, is no reason for disregarding a clearly controlling precedent.

The trial judge’s attempt to justify his decision by finding that Heck is “at variance” with Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981), and Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), flies in the face of Heck’s determination that those Supreme Court cases did not decide the issue whether ordinary negligence was an unconstitutional standard of culpability in a vehicular homicide case. This Court in Heck carefully considered the holdings in Houtz and Field, see Heck, 341 Pa.Super. at 190-92, 491 A.2d at 215-16, and determined that, although those cases had settled that simple negligence was the level of culpability established by the vehicular homicide statute, they had not involved constitutional challenges to that level of culpability based on due process grounds. We specifically addressed the argument now adopted by the trial judge, and rejected it, finding that

neither Field nor [Commonwealth v. Koch, 297 Pa.Super. 350, 443 A.2d 1157 (1982) ], nor any other case has ... decided appellant’s remaining contention that it violates substantive due process to impose liability under the vehicular homicide statute upon a mere showing of ordinary negligence. Field and Koch held that because the crime contains an element of fault, the statute could not be constitutionally challenged for imposing liability without fault. See also Commonwealth v. King, 298 Pa.Super. 499, 444 A.2d 1294 (1982). The separate question now to be decided is whether the element of fault defined in those decisions passes constitutional muster in the case at bar. The constitutionality of premising liability for vehicular homicide on ordinary negligence was not raised in either Field or Koch, which leads us to conclude that the question remains open. See Jameson v. Pittsburgh, 381 Pa. 366, 113 A.2d 454 (1955) (portions of statute previously construed by Supreme Court could be found unconstitutional where constitutional issue neither raised nor passed upon in prior case). Our conclusion is the same one reached by our eminent President Judge (then Judge) Spaeth, who in his concurring opinion in Koch, supra, opined that the Field decision had not decided nor precluded a due process challenge to liability for vehicular homicide based on ordinary negligence. See also [Commonwealth v. Dell, 301 Pa.Super. 387, 447 A.2d 1021 (1982) ] (opining that Field’s determination of causation element of vehicular homicide did not preclude later challenge to that element) (dictum). Thus we proceed to the merits of the substantive due process issue.

Heck, 341 Pa.Superior Ct. at 196-97, 491 A.2d at 219.

On the merits, we found that liability for vehicular homicide based on mere negligence violated a defendant’s right to due process of law under the law of the land clause of the Pennsylvania Constitution, art. 1, § 9. Having thus interpreted the law of Pennsylvania, this Court is not subject to the second-guessing of the courts of common pleas as to whether our analysis of the Supreme Court’s opinions was correct. Unless and until the Heck Court’s interpretation of the state constitution is reversed or overruled by a state court competent to do so, the courts of common pleas are obligated to apply our ruling as the law of the state.

Therefore, we find that the trial court erred in failing to charge the jury in accordance with the controlling law of Commonwealth v. Heck. Consequently, we must remand for a new trial with the direction that the trial court follow the dictates of Heck.

Reversed and remanded for a new trial. Jurisdiction is relinquished.

POPOVICH, J., concurs in result.

      . Given our disposition of appellant’s first issue, we need not address the remaining issue.


text:
    520 A.2d 1192
    COMMONWEALTH of Pennsylvania v. Phillip Thomas MONOSKY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 26, 1984.
    Filed Feb. 6, 1987.

      Alphonse P. LePore, Jr., Public Defender, Uniontown, for appellant.
    Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
    Before CIRILLO, President Judge, and BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal from the judgment of sentence following appellant’s conviction on charges of driving under the influence of alcohol or controlled substance (75 Pa.C.S.A. § 3731), failing to drive at a safe speed (75 Pa.C.S.A. § 3361) and possession of a prohibited offensive weapon (18 Pa.C.S.A. § 908), is again before us on remand from the Supreme Court, Commonwealth v. Monosky, 511 Pa. 148, 511 A.2d 1346 (1986), which reversed our determination that a violation of Pa.R.Crim.P. 1100 had occurred and reinstated the judgment of sentence imposed by the trial court.

Pursuant to the mandate of our Supreme Court, the issues now remaining for our disposition are whether the verdict was against the weight of the evidence and whether the evidence was sufficient to sustain the verdict of guilt.

After examination of the record and consideration of the briefs of the parties, we affirm.

In evaluating a claim that the verdict is against the law for lack of sufficient evidence, we view the evidence in the light most favorable to the Commonwealth, the verdict winner in this case, and draw all reasonable inferences therefrom to determine if the Commonwealth has presented evidence sufficient to find each element of the crime charged beyond a reasonable doubt. Commonwealth v. Shirey, 343 Pa.Super. 189, 494 A.2d 420 (1985); Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984). Since the instant record does not reveal a verdict so contrary to the weight of the evidence as to shock one’s sense of justice, a new trial, therefore, is not mandated. Commonwealth v. Haight, 332 Pa.Super. 269, 481 A.2d 357 (1984).

With regard to appellant’s conviction for failure to drive at a safe speed, the trial record discloses that appellant was initially observed by the two testifying patrol officers driving in excess of the posted speed limit of 25 miles per hour through a residential area on a foggy, wet day (N.T. 5, 28, 29, 34). Officer Capitos testified that it was necessary for him to accelerate to between 55 and 60 miles per hour in order to overtake appellant (N.T. 28). Both officers also expressed their opinion that appellant was traveling approximately 50 miles per hour when they initially observed him. (N.T. 29, 35).

First, we note that a police officer may properly stop a motor vehicle which he reasonably believes is traveling in excess of the legal speed limit. Commonwealth v. Fisher, 294 Pa.Super. 486, 440 A.2d 570 (1982). The applicable provision of the Motor Vehicle Code here involved, 75 Pa.C.S.A. § 3361, states that a vehicle shall not be driven in excess of a speed greater than is reasonably prudent under conditions and potential hazards existing at that time. As the record here discloses, hazards and conditions were readily apparent. The area was residential, and the day was foggy and wet. We conclude that appellant’s driving at a speed in excess of the posted limit was greater than was reasonable and prudent given the prevailing conditions and potential hazards.

Secondly, both officers tendered their opinions as to the speed of appellant’s motor vehicle. We hold this to be proper, since lay people are competent to render such an opinion if, as here, adequate opportunity existed to observe the vehicle. Commonwealth v. Reynolds, 256 Pa.Super. 259, 389 A.2d 1113 (1978). Such testimony is not a subject matter related to a science, skill or occupation beyond the common experience of an average layman. It involves a matter of common knowledge. Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976). Instantly, Officer Capitos had been with the Connellsville Police Department for nearly five years (N.T. 4), and Officer Vindonish had been a police officer for nine years (N.T. 33). Both officers were assigned to patrol duty and were evidently experienced drivers. Commonwealth v. Reynolds, supra. Their opinion as to the speed of appellant’s vehicle was for the fact finder, here, the trial court, to weigh. Id. Thus, we hold that the evidence was sufficient and the verdict was not against its weight to sustain appellant’s conviction for failing to drive at an safe speed.

The record also discloses sufficient evidence of appellant’s intoxication to render him incapable of safe driving. The officers detected an odor of alcohol about appellant (N.T. 7, 17, 45). Officer Capitos testified that three minutes elapsed before appellant was able to produce his license, registration and insurance card (N.T. 7, 18). Both officers indicated that appellant’s speech was slurred (N.T. 8,10,18, 44), that he was glassy-eyed (N.T. 8,10, 21, 36, 45), that his steps in exiting the automobile were deliberate and that his gait was unsteady and staggering (N.T. 8, 10, 19, 35). It was also necessary for appellant to steady himself by placing his hand on the edge of the car after he exited (N.T. 8, 43). Officer Yindonish further testified that appellant’s facial appearance was flushed (N.T. 36, 45), that he was dazed (N.T. 45) and that he exhibited a disheveled appearance (N.T. 35).

The officers’ opinion that appellant exhibited these signs of intoxication (N.T. 27, 46) and their belief that he was intoxicated were proper and justifiable under the circumstances because intoxication is a matter of common observation on which lay people are competent to render an opinion. Commonwealth v. Reynolds, supra. This includes police officers. Id. Both officers were experienced with patrol duty (N.T. 4, 33) and had completed over 100 arrests for driving under the influence (N.T. 26, 46).

Consequently, the two police officers, who actually observed appellant’s operation of the motor vehicle and his demeanor and gait after he exited the automobile, were competent to testify regarding appellant’s intoxicated state. Commonwealth v. Neiswonger, 338 Pa.Super. 625, 488 A.2d 68 (1985). We deem the evidence adduced here sufficient and the verdict supported thereby to sustain appellant’s conviction for driving under the influence of alcohol to a degree which rendered him incapable of safely operating his automobile.

Lastly, appellant contends that since the evidence was insufficient to sustain his arrest and conviction for driving at an unsafe speed and driving under the influence of alcohol, the subsequent station house inventory of the subject motor vehicle which uncovered the firearm was consequently illegal. We disagree. Because we have found the evidence sufficient to support both the convictions and the arrest, appellant’s contention that the firearm is suppressible as the fruits of a search incident to an unlawful arrest is without merit.

Judgment of sentence affirmed.

      . Neither the criminal complaint nor the information indicates specifically under which subsection(s) of § 3731 appellant was charged. At trial, no evidence of appellant’s blood alcohol was produced because one of the arresting officers indicated that appellant refused to submit to a breathalyzer test (N.T. 10). These two officers did indicate at trial that they detected an odor of alcohol about appellant at the time of his arrest and at the station and that appellant’s appearance, demeanor and gait, based upon their observation and experience, were indicative of intoxication. Thus, based upon our examination of the record, as more fully developed in the body of this Opinion, we conclude that sufficient evidence existed to support appellant's conviction for operating a motor vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving and that the verdict was not against the weight of the evidence adduced.

      . Commonwealth v. Monosky, 341 Pa.Super. 617, 491 A.2d 920 (1985).

      . Examination of appellant’s post-trial motion for a new trial and/or in arrest of judgment discloses that it is couched in boiler-plate language with respect to the remaining issues for our disposition. However, since the filing of this motion predates our decision in
        Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983), and the grace period extended by that decision, we are compelled to address the merits. Commonwealth v. Beckham, 349 Pa.Super. 430, 503 A.2d 443 (1986). In Holmes, we stated that a post-verdict motion which alleges either that the evidence was insufficient to sustain the verdict or that the verdict was against the weight of the evidence is inadequate to preserve any issue for appellate review absent a precise showing in what respect the evidence was insufficient or why the verdict was contrary to the weight of the evidence. See Commonwealth v. Cardona, 316 Pa.Super. 381, 463 A.2d 11 (1983).