text:
    437 A.2d 36
    COMMONWEALTH of Pennsylvania v. James ALDERMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Nov. 13, 1981.
    Brosky, J., concurred in the result.

      William P. James, Philadelphia, for appellant.
    Michele A. Goldfarb, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before SPAETH, BROSKY and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from judgments of sentence for burglary, possessing an instrument of crime, simple assault, and conspiracy. Appellant, who obtained new counsel after trial, argues that he should have a new trial because his trial counsel was ineffective. Finding no merit to this argument, we affirm.

In reviewing a claim of ineffectiveness, we must make an independent review of the record, and of trial counsel’s “stewardship of the now challenged proceedings in light of the available alternatives.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Here, our review of the record reveals the following.

On November 18, 1978, a group of ten to fifteen people were at the house of Alice Price, in Philadelphia, for a dinner that she was sponsoring to raise money for her church choir. At about 5:00 p. m. three men entered the house, announced a holdup, and ordered everyone to lie down on the floor. One man held a shotgun on the victims; another collected their jewelry and pocketbooks; and a third went upstairs in search of other persons. This third man was later identified by Alice Price and her nephew, Leon Stewart, as having been appellant. Leon Stewart was in a bedroom on the second floor. When he saw appellant climbing the stairs with a gun, he closed and locked the bedroom door. Appellant fired his gun into the door; the bullet went through the door and struck Stewart in the arm. Appellant then kicked in the door. Stewart fired a 12 gauge shotgun at appellant and wounded him in the neck. After emptying his gun at Stewart, wounding him in the arm, neck, and shoulders, appellant retreated down the stairs, bleeding profusely, and fled, with his cohorts.

Appellant was taken to Einstein Hospital and placed in intensive care, and a little later, so was Stewart. The police interviewed Stewart, and on the basis of what he told them had happened, and his description of the man he had shot, they arrested appellant.

Appellant testified in his own behalf. He denied having been at the Price residence, and denied involvement in the robbery. He explained his wounds as follows:

My father had some shotguns in the cellar. I was messing around with one of the shotguns. I went there, had been looking around the house was in the cellar, was messing with one of the shotguns, which went off, hit me in my face. All I could think of was trying to get to a hospital, so as I ran upstairs, I couldn’t think of going to the phone, to call an ambulance. I opened the door to see if my mother’s neighbor, who is a close friend of the family’s, she was home, she had an automobile. At that time my cousin Joseph Newkirk drove up, asked what happened, I told him a shotgun went off. He said, “Come on, let’s get you to a hospital.” I got in the car, he took me to a hospital at Broad and Olney.
N.T. 164.

In his summation, appellant’s trial counsel referred to this testimony. He said: “My theory is this: robbery occurred. Mr. Stewart was shot. Mr. Alderman had been shot at his mother’s house.” N.T. 182. Counsel then proceeded to attack the Commonwealth’s identification evidence and emphasized appellant’s testimony regarding the origin of his wounds. N.T. 182-193.

An evidentiary hearing on counsel’s effectiveness was held, at which Newkirk, appellant’s brother Robert, appellant, and trial counsel testified.

Newkirk testified that on November 18, 1978, he went to the house of his aunt, appellant’s mother, and upon arriving, saw appellant standing at the door, holding his collar. He also testified that when appellant said that he had accidentally shot himself, he took appellant to the emergency ward of Einstein Hospital. N.T. 2/13/80 at 2-5.

Appellant’s brother Robert testified that in November 1978 he lived with his mother, and that on November 18, after learning of' appellant’s injury, he went to the basement and on the floor found a shotgun with one chamber empty and one chamber loaded, and blood. N.T. 2/13/80, 5-8.

Appellant testified that he first conferred with trial counsel “right before trial.” He said that counsel never interviewed his cousin Newkirk or his brother Robert. N.T. 2/13/80,11. Also, he said, counsel did not go to his mother’s house to see if any guns were there. Id. at 13. He further testified:

I did ask [trial counsel] before trial about my witnesses. I was under the impression that we were going to get a postponement, because I never had a chance to talk to [trial counsel], really, but the Public Defenders [who earlier represented appellant] did have the names of the witnesses that I wanted to call to trial, so when [trial counsel] took the case over, like I said, I would talk to him right before trial, and I explained to him I wanted to call the witnesses and he said that most likely we could get a postponement, because he really did not have a chance to prepare a defense or case. See?
Id. at 12.

Trial counsel testified that he was retained two months before trial and during that period spoke with appellant on two occasions in a cellroom and on two or three occasions by telephone. N.T. 2/14/81, 19, 20, 21. Counsel testified that before trial appellant told him that “he had gone to the place in question. There was some kind of debt owed by the man who shot him. It was a kind of self-defense kind of thing.” Id. at 27. Also, counsel testified, appellant’s mother had told him that appellant had been involved in the crime and had gone to the Price house to collect a debt owed him in a drug deal. Id. at 20-21. Counsel testified that the first time he learned of appellant’s story—that he had accidentally shot himself—was “during the course of trial when the trial was going on and we had, you know, a day or so in between, you know; when we were—at the end of the day.” Id. at 21. Counsel testified that he did interview appellant’s brother Robert, “who was in the courtroom at the time.” Id. at 22. “I asked him about the cousin [Newkirk]. He said he didn’t want to get the cousin involved.” Id. at 27. Counsel was not asked whether, and did not testify that, appellant’s brother Robert had said anything about finding a shotgun and blood in his mother’s basement. Counsel explained his failure to call Newkirk and appellant’s brother as witnesses as follows:

Your Honor, basically from what I was told by Mr. Alderman and Mr. Alderman’s mother, the defense that was presented actually in the courtroom was not what the mother believed had happened and not what Mr. Aider-man had told me initially had happened. And you run into really an ethical problem there as to whether you are presenting the truth to the Court.
Id. at 26-27.

The lower court accepted trial counsel’s testimony and rejected the testimony of appellant and his witnesses. Thus, in dismissing appellant’s claim of ineffective assistance of counsel, the court stated that had “[counsel] presented alibi witnesses and physical evidence tending to show that [appellant] was shot at another place,” he would have “introduced . .. perjured testimony.” Slip op. at 2.

It is a general principle that
[o]ur legal system does not constitute the lawyer the judge as to the justice or the soundness of the causes committed to him, but deems it in the ends of justice to have all the facts and arguments on each side of the controversy presented by expert counsel, stimulated to a maximum of industry and ingenuity by the contest, for decision by court and jury.
Drinker, Legal Ethics (Greenwood Press 1980) at 142.

In conformity with this principle, our Supreme Court has held that when counsel is advised of an alibi defense, he should ask his client the names and addresses of the alibi witnesses and interview them, and that his failure to do so may render him ineffective. Commonwealth v. Bronson, 457 Pa. 66, 321 A.2d 645 (1974).

It does not follow, however, that appellant’s counsel’s failure to interview Newkirk rendered him ineffective. For t is axiomatic that the right of a client to effective counsel in any case (criminal or civil) does not include the right to compel counsel to knowingly assist or participate in the commission of perjury or the creation or presentation of false evidence.

A.B.A. Committee on Ethics & Professional Responsibility, Informal Opinion 1314, 3/25/75.

See also, DR 7-102(A)(4), (6), (7).

Counsel’s testimony at the post-conviction hearing makes plain that counsel believed that to call Newkirk (and appellant’s brother, assuming that the brother had told counsel about finding the gun and blood) to testify as alibi witnesses would be “to knowingly assist or participate in the commission of perjury or the creation or presentation of false evidence.” The question we must decide, therefore, is whether counsel was entitled to his belief, even though he had not interviewed Newkirk or gone to appellant’s mother’s house to see if there were any guns there.

We are satisfied that counsel was entitled to his belief. No doubt sometimes a defendant may risk conviction rather than reveal exculpatory evidence to his lawyer. He may, for example, wish to shield someone. Also, no doubt a defendant may say one thing to his lawyer and later contradict it, when for one reason or another—new information, for example—his memory has been refreshed and he concludes that his first account was mistaken. Every change in a defendant’s story should not be viewed by counsel as a fabrication. Here, however, there could have been no reasonable doubt but that appellant’s newly discovered alibi was a fabrication. The change in appellant’s story could not be explained as an error of memory, and nothing suggested that appellant was trying to shield someone—nor does appellant now offer either of these explanations.

Since appellant had no right to have counsel offer false evidence, counsel’s failure—more accurately, his refusal—to interview Newkirk and to go to appellant’s mother’s house to see if there were any guns there cannot be the basis of a finding that counsel was ineffective.

This conclusion, however, does not end our concern with counsel’s actions. While we recognize the dilemma that confronted counsel, we cannot condone his method of resolving it.

Disciplinary Rule 7-102(B)(l) of the Code of Professional Responsibility, adopted by our Supreme Court effective February 27, 1974, provides that when a lawyer “receives information clearly establishing” that his client has perpetrated a fraud upon a court—as occurred here, when appellant gave his perjured testimony—the lawyer

shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal except when the information is protected as a privileged communication.
D.R. 7—102(B)(1).

The last clause—regarding a “privileged communication”— has provoked intense debate, especially as regards the duty of a lawyer representing one accused of crime. We need not summarize the differing points of view now; for an excellent summary, see Wolfram, Client Perjury: The Kutak Commission and the Association of Trial Lawyers on Lawyers, Lying Clients, and the Adversary System, American Bar Foundation Research Journal No. 4 at 964-80 (1980). It is enough if we state the issue generally. On the one hand, it is argued that the constitutional right to the effective assistance of counsel requires that the accused know that no matter what he tells counsel, counsel will not disclose it. On the other hand, it is argued that the integrity of the adversary system, as well as of counsel personally, requires that counsel not become a knowing participant in fraud.

Several resolutions of this issue have been suggested and are currently being debated incident to review of the American Bar Association’s proposed Model Rules of Professional Conduct. We may mention two. One solution would entirely excuse the lawyer from any duty to reveal perjury if the perjury were that of the client’s; the lawyer would be permitted to argue known perjury to the fact-finder as credible. Another solution would require the lawyer to try to persuade the client “to rectify” the perjury; if the client refuses and no other reasonable measures are available, the lawyer may have to disclose the perjury. See Kutak, Model Rules of Professional Conduct: Ethical Standards for the ’80s and Beyond, 67 A.B.A.J. 1116, 1119-20 (1981).

Here, although refusing to interview Newkirk, as regards appellant’s testimony trial counsel resolved his dilemma by adopting the first of these two solutions: he treated testimony he reasonably believed to be perjured as though it were true, eliciting the testimony by his questions, and arguing it to the jury as credible. This conduct was unjustified.

All of the extant cases and, with one exception, all commentators, until the publication of the Freedman—ALTA draft have agreed that a lawyer would be subject to professional discipline and possibly other legal sanctions for such conduct [arguing known perjury to the fact-finder as credible].
Wolfram, supra at 978 (footnotes omitted).

Disciplinary Rule 7-102 provides:

(A) In his representation of a client, a lawyer shall not:
(4) Knowingly use perjured testimony or false evidence.
(5) Knowingly make a false statement of law or fact.
(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.

Whatever may be a lawyer’s duty to make an affirmative disclosure of his client’s perjury—and we need not decide that issue now—it is clear that the lawyer may not argue known perjury to the factfinder as credible.

This conclusion requires us to ask: Would effective counsel have acted as trial counsel here did? Does not effective counsel always—that is, by definition—conduct himself in accordance with the Disciplinary Rules? We believe that effective counsel does always conduct himself in accordance with the Disciplinary Rules. This belief, however, does not persuade us to award appellant a new trial. To do that would be a most curious result. It was appellant’s perjury that led counsel to argue as he did. To say that since counsel should not have argued that way he was ineffective, and therefore appellant will be granted a new trial, would be to reward a perjurer for his perjury.

Appellant’s remaining arguments may be dismissed summarily. The arresting officer was permitted over appellant’s counsel’s objection to say that clothing he had taken from appellant “appeared] to have .. . wood chips” on it. N.T. 152. Appellant argues that the court should have sustained counsel’s objection, and that counsel was ineffective for failing to move for a mistrial. However, counsel had no reason to suppose that such a motion would be granted. Even assuming that the testimony was impermissible opinion, rather than mere shorthand, the jury was not confused. On cross-examination the officer admitted that when he submitted the “wood chips” for analysis, the laboratory reported that “they could not do an analysis.” N.T. 158. Appellant also argues that counsel was ineffective for failing to request the court to instruct the jury to receive the identification testimony with caution. While the court did not use the words “with caution,” its charge adequately covered the factors the jury should consider. Finally, appellant argues that counsel was ineffective for failing to request the court to instruct the jury concerning alibi testimony. Such a request would further have implicated counsel in appellant’s perjury.

Affirmed.

BROSKY, J., concurs in the result.

      . Trial counsel did not make an opening statement.

      . This reference is to a June 1980 draft authored by Monroe H. Freedman and said to reflect extensive comment by the members of the Association of Trial Lawyers of America Commission on Professional Responsibility but not finally approved by it. Wolfram, supra at 965 n. 10.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    437 A.2d 41
    COMMONWEALTH of Pennsylvania, v. Hazel W. BURGWIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 12, 1980.
    Filed Nov. 13, 1981.
    Petition for Allowance of Appeal Denied March 1, 1982.

      John H. Corbett, Jr., Pittsburgh, for appellant.
    Kathryn L. Simpson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

Appellant appeals from a conviction of violation of the Uniform Firearms Act, 18 Pa. C.S.A. § 6106. Appellant contends that the trial court erred in its denial of his pretrial motion to suppress evidence obtained by an allegedly illegal search and seizure. Appellant was sentenced to not less than eleven and one-half months incarceration and not more than twenty-three months. We agree with the judgment of the trial court and affirm the conviction.

At approximately 8:00 a. m. on the morning of February 13, 1979, a confidential informant walked into the No. 2 Police Station of the City of Pittsburgh and gave certain information to two policemen on duty at the time. The informant stated that a black male, driving a black 1975 Oldsmobile Ninety-Eight with a white roof bearing a certain Pennsylvania license number, was carrying a gun on his person. The policemen were also told by the informant that the car was being driven around the Hill District section of Pittsburgh.

Pursuant to this information, at approximately 10:30 a. m., the two policemen left No. 2 Station to go to No. 1 Station to attempt to secure a search warrant. While enroute, the officers observed a car fitting the informant’s description. They stopped the car, extracted the four male occupants from it, and searched them. A revolver was found in a coat pocket of the driver. Appellant was arrested and later convicted of a violation of Uniform Firearms Act.

Appellant’s contention is that because the search was conducted without a warrant, the evidence obtained from the search is inadmissible.

It is axiomatic that a search of an automobile may be conducted without a warrant when there exists probable cause to search and exigent circumstances necessitating a search. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), Commonwealth v. Smith, 452 Pa. 1, 304 A.2d 456 (1973). Appellant, however, argues that the circumstances in this case were not sufficiently exigent to justify a warrantless search. He contends that, first, there can be no exigent circumstances where the police voluntarily delayed for two and one-half hours before attempting to secure a warrant, and, second, none existed because appellant was not alerted to any steps taken against him by the police.

As to appellant’s first contention, we adopt the holding and rationale of the four justice plurality in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974). In Cardwell, as in this case, probable cause for seizure existed for some time prior to the search. The court upheld the warrantless search and seizure, the plurality stating:

[W]e know of no case or principle that suggests that the right to search on probable cause and reasonableness of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment . . . The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation necessitating prompt police action.

In light of prompt police action, we hold that the police’s voluntary delay in attempting to secure a search warrant was of no effect. The exigent situation arose when the police inadvertently came upon the car containing the appellant.

As to appellant’s second contention, there is no requirement that exigent circumstances can only be found when the defendant has been alerted to police actions taken against him. Rather, exigent circumstances can exist for a number of reasons. We hold, as explained above, that exigent circumstances existed in this case. The police by chance came upon the car in which they had probable cause to believe the driver was presently committing a crime. Thus, an exigent circumstance existed. Surely, the logic of such a circumstance demands as much. It seems reasonable that the police should not be faulted for their failure to have a warrant in hand at the time they found themselves in the immediate proximity of the vehicle for which they presently possess probable cause to search. See W. LaFave, Search and Seizure, § 7.2(c) (1st ed. 1978). This is akin to the situation in Carroll where the police “were not looking for defendants at the particular time they appeared,” but rather accidently came upon them. The court in Carroll, in upholding the warrantless search there, held that such a situation was one in which it is not practicable to secure a search warrant.

A collateral issue that needs to be addressed is that of the warrantless search of the appellant’s person. Up to this point, we have held that a warrantless search of an automobile may be justified under certain circumstances. The situation in the instant case, however, is a warrantless search of not only an automobile, but also of the appellant’s person. In such a case, we must determine if a warrantless search of the person is also justified.

The rationale behind the warrantless search of an automobile is the same as the rationale behind the warrant-less search of the person. In either case, exigent circumstances justify an exception to the requirement of securing a search warrant prior to the search. As there is nothing of relevance to distinguish between the two situations, they should be treated the same. As LaFave has stated in his treatise on search and seizure: “If such exigent circumstances plus probable cause to justify search of a movable vehicle or containers in transit, then it should likewise permit search of a person.” W. LaFave, Search and Seizure, § 5.4(a) at 341 (1st ed. 1978). See, e. g. Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). As we find no difference in the two situations, we hold that exigent circumstances may justify a warrantless search of the person.

Appellant additionally argues that probable cause did not exist to conduct a search of the vehicle or of his person. The standard for testing the sufficiency of probable cause for a search when an informant’s tip has been relied on by the police has been enunciated in the cases of Aguilar and Spinelli. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). What is required is that the police know the underlying circumstances from which the informant concluded that the suspect was guilty of a crime, and the police must have some reason to believe that the informant is telling the truth. These tests have been met in this case. First, the informant told the police that he observed appellant carrying a gun on his person, and the informant gave the police a detailed description of the car that appellant was driving. Second, the informant’s credibility was established by the fact that information had been provided by him in the past by the informant which had led to other arrests and convictions. We have held that past accurate information is a valid method of establishing credibility. Commonwealth v. Lucchese, 233 Pa.Super. 273, 335 A.2d 508 (1975). Accordingly, we hold that there was sufficient probable cause to conduct the search.

As there was sufficient probable cause to search, and exigent circumstances justified a warrantless search, we affirm the judgment of sentence of the trial court.

Affirmed.


author: BROSKY, Judge: JOHNSON, Judge,

text:
    437 A.2d 44
    COMMONWEALTH of Pennsylvania, v. David SHERIDAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Nov. 13, 1981.
    Petition for Allowance of Appeal Granted April 30,1982.

      Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   BROSKY, Judge:

Appellant was convicted at a non-jury trial of burglary, possessing instruments of crime, carrying firearms on a public street, and criminal trespass. Sheridan filed post-verdict motions which were denied. He was sentenced to serve a term of imprisonment lasting one to ten years for burglary, a concurrent sentence of one to three years for possessing instruments of crime, a concurrent sentence of one to two years for carrying firearms on a public street and a concurrent sentence of one to three years for criminal trespass. This appeal followed. We affirm the decision of the trial court.

, In the early morning, 2:50 a. m., of March 19,1979, Robert Waters was awakened from his sleep at his apartment at 2008 Pine Street, Philadelphia, by a “rustling noise.” A person was at the foot of his bed. That person, a man, approached Walters, pointed a gun at him, and walked away. The police were contacted as soon as the intruder departed.

A radio dispatch was sent out by the police to search for a black male, 5 feet 8 inches tall, wearing a white raincoat and a cap. The man was possibly armed. He was last seen at 2008 Pine Street minutes ago. Within two or three minutes, the police came upon a black man, about 5 feet 8 inches tall wearing, a full-length tan overcoat and no hat. There was no one else on the street. It was now nearly 3:00 a. m.

The policeman called over the appellant to his car and asked him where he was going. Appellant said nothing. The officer asked him again and Sheridan said nothing. The officer then frisked the appellant and discovered a .32 caliber revolver on him. He then asked Sheridan if he had a permit to carry the gun. Sheridan did not answer. The policeman then continued his search of appellant and discovered two wallets, one bearing another person’s name and the address 2008 Pine Street.

Sheridan presents two questions for our consideration. First, was the stop, frisk, search and seizure supported by adequate, reasonable grounds to so act? We hold that the police had reasonable grounds to stop and question the appellant. That questioning provided them with sufficient suspicious circumstances when coupled with their knowledge that the appellant may be armed to conduct a Terry search. And, finally, evidence properly obtained from that search provided the policeman with sufficient probable cause to arrest the appellant.

Thus, our analysis is presented in a manner involving three levels of scrutiny. First, we focus upon the circumstances of the search to determine if “some intermediate response” was warranted. Commonwealth v. Daniels, 280 Pa. Super. 278. 421 A.2d 721 (1980).

In Commonwealth v. Lovette, 271 Pa.Super. 250, 253, 413 A.2d 390, 391 (1979), we said:

Appellant does not actively contend that the police officer was not permitted to stop and detain him briefly for identification. Nor does appellant assert that the police lacked probable cause to arrest him once the hat had been identified. Rather he contends that probable cause was lacking when the officer drove appellant to the burglarized house. Appellant identifies the officer’s placing him in the patrol wagon as the time of the arrest, because he was subject to the control of the officer.
While we accept that appellant was required to accompany the officer for the one and one-half block trip, we disagree with his conclusion that in order to do so the police were required to have the same quantum of proof necessary to support a full-blown arrest. We are not faced with the aspects of such an arrest but, rather, with an identification procedure by which the officer could determine whether there was probable cause to arrest appellant and formally charge him with the criminal offenses. Instead of arresting appellant, the officer made an intermediate response by transporting appellant and the property a short distance for identification. Intermediate responses previously have been approved by the courts of this Commonwealth. Commonwealth v. LeSeuer, 252 Pa.Super. 498, 382 A.2d 127 (1977); Commonwealth v. Harper, 248 Pa.Super. 344, 375 A.2d 129 (1977), as guided by the Supreme Court decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The officer in this case was reluctant to let appellant free to leave as neither appellant nor his companions had identified themselves; and the hat, as evidence, could easily be destroyed or concealed. At the same time, the officer was reluctant to arrest appellant on the basis of the information known to him at this time. Rather than force the officer to choose between such opposite responses, this court sanctions the use of an intermediate response such as the one used in this case. See also Commonwealth v. Harper, supra. Obviously, once the hat had been identified, the officer had the requisite information to arrest appellant. Commonwealth v. Jones, 457 Pa. 423, 428, 322 A.2d 119 (1974). Accordingly, we find no error in the court’s refusing to suppress evidence demonstrating that the hat had been stolen.

We indicated in Commonwealth v. Lovette, supra, that the police possessed a reasonable suspicion to stop, question and transport Lovette once they had seen him one and one-half blocks from the scene of the crime, identified that he wore a hat similar to that described to police and that he had muddied shoes, which all occurred at 3:15 p. m.

Here, the police discovered a black man, without a hat the actor was described to have been wearing, an overcoat, not a raincoat, different in color from that described to the police, three blocks from the scene at 3:00 a. m. We believe the facts herein justified the police in stopping the appellant. While there was little evidence to connect him with the crime, the fact that the encounter between the police and the appellant occurred at 3:00 a. m. when the Commonwealth argues few persons would be in or near the geographical area in which the crime occurred when coupled with the evidence police had, these facts were sufficient to legitimize the stop. See also: Commonwealth v. Kazior, 269 Pa.Super. 518, 525, 410 A.2d 822, 825 (1979).

The circumstances found in this case are not unusual. The record discloses that the police radioed a message that a black man wearing a white raincoat was reported to have committed a burglary at 2008 Pine Street, Philadelphia. The police discovered a man three blocks from the scene of the crime who was black and was wearing a tan overcoat. This encounter occurred at 3:00 a. m. The police stated that no one else was seen on the street. We believe that when the policeman viewed a man, generally fitting the description of the alleged criminal, seen on a street where no other persons were found at 3:00 a. m., that the policeman acted reasonably in stopping and questioning that man.

Once the policeman stopped and questioned the appellant, he had reason to frisk him because he refused to cooperate with the officer’s inquiries.

Q. And what was the first thing that you did? Was that to ask him his name?
A. That’s correct. I asked him where he was coming from.
Q. What did he tell you about where he was coming from?
A. He didn’t say.
Q. You mean he just stood there without answering you? A. That’s correct.
Q. Did you ask him again?
A. Yes, I did.
Q. And what happened then? What was his response? A. He still didn’t answer.

The appellant’s unresponsiveness caused the policeman’s suspicion to rise to a higher level at which when combined with the information in the radio message that the alleged criminal may be armed provided the officer with grounds to frisk the appellant under the Terry doctrine. Terry v. Ohio, supra. The Supreme Court stated in Terry:

If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether “probable cause” existed to justify the search and seizure which took place. However, that is not the case. We do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, see e. g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Beck v. State of Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), or that in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances, see, e. g., Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (hot pursuit); cf. Preston v. United States, 376 U.S. 364, 367-368, 84 S.Ct. 881, 884, 11 L.Ed.2d 777 (1964). But we deal here with an entire rubric of police conduct—necessarily swift action predicated upon the on-the-spot observations of the officer on the beat—which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures. Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant in this context. In order to assess the reasonableness of Officer McFadden’s conduct as a general proposition, it is necessary “first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,” for there is “no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.” Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967). And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate? Cf. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Beck v. State of Ohio, 379 U.S. 89, 96-97, 85 S.Ct. 223, 229, 13 L.Ed.2d 142 (1964).
Id. at 20-22, 88 S.Ct. at 1879-1880, 20 L.Ed.2d at 905-06.

We hold that the officer’s actions were a reasonable response to the appellant’s actions in light of the policeman’s knowledge that the person reported to have committed the offense was armed when viewed also with the knowledge that the appellant refused to answer the policeman’s questions.

When the policeman found the gun, he asked the appellant if he had a license to carry it. Sheridan did not respond. The policeman accordingly arrested him based upon the probable cause established by the appellant’s illegal possession of a firearm. The policeman then obtained evidence which linked the appellant to the crime when he made a search incident to the arrest. The trial court, accordingly, refused to suppress evidence which the officer properly seized. We affirm the decision of the trial court.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I must dissent regarding the issue of whether or not there was even reasonable justification to stop Appellant. Although the majority justifies the stop by comparing the facts in the instant case with those in Lovette, 271 Pa.Super.Ct. 250, 413 A.2d 390 (1979), the issue of the stop was not even before the court in Lovette. Lovette, therefore, does not constitute a valid precedent by which the validity of the stop may be determined. Thus, we must direct our attention to cases involving a stop to determine whether or not there was even reasonable justification to stop Appellant.

When a police officer stops an individual and restrains his freedom to walk away, he has seized that person. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968); Commonwealth v. Hicks, 434 Pa. 153, 157, 253 A.2d 276, 278 (1969). The Fourth Amendment requires that such seizures must be reasonable. Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975).

Although the majority contends that the police were justified in stopping and frisking Appellant as an “intermediate response,” even a brief stop must be supported by articulable and objective criteria which indicate that the person seized is, or is about to be, engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981); Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980). The term, “intermediate response,” was employed by the Court in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972):

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.

Id. at 145, 92 S.Ct. at 1922. A brief review of Adams, as well as other United States Supreme Court, and Pennsylvania, cases, indicates that the policeman was not justified either to stop or to frisk Appellant in the instant case.

Several crucial distinctions must be made between Adams v. Williams and the instant case. In Adams, the officer acted upon a tip from a trusted informant. In the instant case, the policeman acted upon an unsubstantiated radio message. In Adams, the informant personally provided specific information that was “immediately verifiable at the scene.” 407 U.S. at 146, 92 S.Ct. at 1923. The informant pointed to a specific vehicle and told the officer exactly where a loaded pistol was located. In the instant case, the radio message—even if reliable—did not identify Appellant but provided a general description of a suspect. Thus the instant case lacks the specificity and reliability that justified the officer’s “intermediate response” in Adams. See Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298 (1978); Commonwealth v. Pinney, 474 Pa. 210, 378 A.2d 293 (1977); Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1969).

Counsel stipulated that the radio message contained the following information: “2008 Pine Street. Committed by one Negro male with white raincoat, blue watch hat. May be armed with gun. Three minutes ago” (N.T. 12,10/1/79). Appellant was not even wearing the clothing described in the message. Instead of a white raincoat, Appellant wore a tan winter overcoat. Rather than a blue watch hat, Appellant did not wear a hat. Thus, Appellant’s only similarity to the radioed description was that he was a black male who wore a tan—not a white—coat.

The majority seems to concede that there was little evidence to connect Appellant with the crime. Despite this concession, and in light of the many dissimilarities between Appellant’s appearance and the radioed description, the majority contends that the stop was “legitimate” because the Commonwealth argued that few people would be in or near the geographical area in which the crime occurred. A mere argument by the Commonwealth does not constitute evidence to justify the stop. Mosey v. Mosey, 147 Pa.Super.Ct. 466, 24 A.2d 59, 61 (1942). While the policeman testified that Appellant was the only person on the street at the time the officer stopped him, no testimony was presented to establish either the frequency with which people appeared in the area between certain early morning hours (e. g. 2:00 a. m. to 4:00 a. m.) during a two-week or other designated period of time, or that no one else was in the area during the entire early morning of the day on which the crime occurred.

Absent such testimony by a competent witness, the Commonwealth’s argument concerning the presence of other individuals in the area is certainly not sufficient to “legitimize” the stop. In fact, it totally lacks any evidentiary value.

The Court in Adams states that “[a] brief stop of a suspicious individual. . . may be most reasonable in light of the facts known to the officer at the time.” 407 U.S. at 146, 92 S.Ct. at 1923. Recent decisions of the United States Supreme Court have defined some definite boundaries by which a policeman’s suspicions must be guided.

In Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), an agent of the Drug Enforcement Administration (DEA) stopped two passengers whose conduct was suspicious in light of a “drug courier profile” prepared by the DEA. The agent considered the following facts to be especially relevant: (1) the suspects had arrived from Fort Lauderdale, which is the principal outlet where cocaine is obtained; (2) the suspects arrived in the early morning, when law enforcement activity is lessened; (3) the suspects tried to conceal the fact that they were traveling together; and (4) they had no luggage other than their shoulder bags. Although the suspects agreed to have their persons and baggage searched, the petitioner dropped his bag and ran as they entered the terminal. The Court held that the cocaine, which was found in the petitioner’s bag, must be suppressed because the agent lacked sufficient justification to stop petitioner and his companion.

In United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Court held that the Fourth Amendment precluded the Border Patrol from stopping petitioner’s car because the three occupants appeared to be of Mexican descent. The Court explained that, even though stopping and questioning a car’s occupants constituted a modest intrusion so that probable cause was not required, under Terry and Adams, the officer must be able to point to “specific and articulable facts” which warrant a belief that the officer’s or others’ safety is in danger. 422 U.S. at 880, 95 S.Ct. at 2579.

In the instant case, Appellant was a black man in a light-colored coat—not the coat described in the radio message—who merely walked on a street in the vicinity of the reported burglary. Unlike Adams, there was not a reliable informant to point specifically to Appellant as the suspect. We have merely a vague similarity between Appellant’s appearance and the radioed description, coupled with the fact that Appellant’s conduct in no way would have justified any rational belief that Appellant was engaged in criminal activity.

If the instant case is compared with the United States Supreme Court decisions discussed above, the vague similarity between Appellant’s appearance and the radio message constitutes no more reasonable justification to stop Appellant than the petitioner’s Mexican descent in Brignoni-Ponce or the similarity to the drug courier profile in Reid. Because Appellant was the only black male on the street at the time when the officer saw him, there was no testimony to indicate either that another black male may not have appeared a few minutes later or that it was unusual for a black male to appear in that area during the early morning. Absent such facts, and considering that Appellant’s behavior gave no indication that crime was afoot, there was no reasonable justification to stop Appellant.

Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970), is on point with the instant case. Two black youths in dark clothing and one Puerto Rican in light clothing were believed to have been involved in a shooting. The defendant, a Puerto Rican in light clothing, and his companion, a black youth in dark clothing, walked in a normal manner near the scene of the crime approximately twenty minutes after the crime occurred. Id., 437 Pa. at 342, 263 A.2d at 344. The police had no reason to associate the defendant and his companion with the crime except their racial characteristics, the color of their clothing, and their proximity to the site of the crime. The court held that, under the Terry criteria, the police did not have reasonable justification to stop and search the defendant. Id., 437 Pa. at 342, 263 A.2d at 344. Berrios cannot be reconciled with the majority’s opinion in the instant case.

In Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298 (1978), the Supreme Court of Pennsylvania again held that the police did not have reasonable justification under Adams and Terry to stop a person because his appearance corresponded with a general description transmitted by a police radio message. A black male, named “Perry,” who was 5'10" with a large bush hair style and a dark coat, was in a particular bar. The court distinguished between the general description, transmitted by radio, and Adams in which the informant was known to the officer, the informant pointed to a specific individual, and the information could be verified immediately. Like Anderson, the instant case lacks these aspects of specificity and reliability.

Without either the specificity and reliability involved in Adams or the officer’s personal observations—based upon articulable facts rather than mere suspicion—involved in Terry v. Ohio, reasonable justification to stop a suspect does not exist. See Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); United States v. BrignoniPonce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298 (1978); Commonwealth v. Pegram, 450 Pa. 590, 301 A.2d 695 (1973); Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969); Commonwealth v. Williams, 291 Pa.Super.Ct. 621, 435 A.2d 248 (1981); Commonwealth v. Mears, 283 Pa.Super.Ct. 416, 424 A.2d 533 (1981); Commonwealth v. Cruse, 236 Pa.Super.Ct. 85, 344 A.2d 532 (1975).

The instant case lacks both the specificity and reliability of Adams and the observations of conduct that would lead the officer to believe that criminal activity was afoot as in Terry.

Although the majority cites Commonwealth v. Kazior, 269 Pa.Super.Ct. 518, 410 A.2d 822 (1980), Kazior included a degree of specificity, coupled with the officer’s personal observations, that is lacking in the instant case. In Kazior, the officer received a radio message that a burglary had occurred at a nearby store. When the officer approached the store, he saw two men—one in a green jacket—running from the store. As the policeman proceeded in the direction where the men had run, a resident directed him to a parked vehicle, where a search revealed the suspects were hiding. Thus the officer personally observed two specific individuals who ran from the scene of the crime. When the officer lost sight of the individuals who ran in a certain direction, a resident, who had observed the suspects, pointed to a specific vehicle. Unlike the generalities in the instant case, Kazior involves the specificity of Adams.

The majority relies most heavily upon Commonwealth v. Lovette, 271 Pa.Super.Ct. 250, 413 A.2d 390 (1979). Judge SPAETH, in his comprehensive dissent, notes the conflict between the decision in Lovette and that of the United States Supreme Court in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). As noted above, Lovette did not discuss the validity of the stop or the frisk, which is the issue raised in the instant case. If reasonable justification for the stop did not exist, the “fruits” of the unlawful stop must be suppressed. Commonwealth v. Boyer, 236 Pa.Super.Ct. 214, 345 A.2d 187, 190 (1975) (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 [1963]).

The majority attempts to justify the frisk on the grounds that Appellant did not answer the officer’s questions. In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), an officer observed the defendant and another man walking in opposite directions in an alley frequented by drug users. Under a Texas statute, the defendant was fined for refusing to identify himself when the officer stopped him. The United States Supreme Court reversed because the stop was not based upon objective criteria.

In the instant case, the policeman did not have reasonable suspicion to stop Appellant. Thus, adopting the rationale of Brown v. Texas, Appellant had no duty to identify himself. The refusal to talk with a policeman does not constitute cause to frisk the suspect. In Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973), the suspect ran when he saw the policeman. The court, on review, quoted United States v. Margeson, 259 F.Supp. 256 (E.D.Pa.1966):

[F]%ht, in and of itself, is not sufficient to constitute probable cause for otherwise anyone, who does not desire to talk to the police and who either walks or runs away would always be subject to a legal arrest.

454 Pa. at 324, 311 A.2d at 917. If flight does not constitute cause to stop a suspect, a suspect’s silence does not constitute cause to frisk him.

In light of the cases discussed above, I can only conclude that the officer lacked reasonable justification to stop or to frisk Appellant. Because both the stop and the frisk were illegal, the evidence thereby obtained should be suppressed. Commonwealth v. Boyer, 236 Pa.Super.Ct. 214, 219, 345 A.2d 187, 190 (1976). Since the complainant could not identify Appellant, the evidence to be suppressed constituted the entirety of the Commonwealth’s case. Thus, a new trial would serve no purpose. Id., 236 Pa.Super. at 219, 345 A.2d at 190. I would, with reluctance, reverse the order of the lower court denying the Motion in Arrest of Judgment, and discharge Appellant.

      . 18 Pa.C.S. § 3502.

      . 18 Pa.C.S. § 907.

      . 18 Pa.C.S. § 6108.

      . 18 Pa.C.S. § 3503.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . We do not hold that the appellant waived the issue related to the search because he did not specifically state his claim related to the radio message. He attacked the police’s authority to arrest the appellant in his post-verdict motions and the trial court reviewed the authority of the police to act pursuant to the information radioed to them.

      . The Courts have employed terms like “reasonable justification,” “articulable reasons,” and “founded suspicion” to designate a standard of justification, which is less than probable cause, to stop a suspect. See United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

      . The majority includes in the radio message a statement that the suspect’s height was 5'8". Although this statement was a finding of fact at the suppression hearing, it was not part of the radio message as stipulated by counsel at that hearing. (N.T. 12, 10/1/79). It is not at all clear how the trial court, and the majority, are able to disregard the stipulated facts since the issue is concerned with the identification that was broadcast in the police message.


text:
    437 A.2d 52
    Marie L. CRUSCO, Admx. of the Estate of Marie Casper, a/k/a Marie Zampino, a/k/a Marie Parlapiano, Deceased, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Nov. 13, 1981.

      Morris M. Shuster, Philadelphia, for appellant.
    George J. McConchie, Media, for appellee.
    Before SPAETH, BROSKY and LIPEZ, JJ.
   BROSKY, Judge:

This case is before us on appeal from a grant of summary judgment to appellee insurance company in a suit brought by appellant to recover benefits under a policy issued pursuant to the Pennsylvania No-fault Motor Vehicle Act. Appellant’s decedent was killed when an explosion occurred in the motor home she was occupying. Gas was leaking from the line to the refrigerator in the motor home and the explosion happened when the oven was lit during the preparation of dinner. The motor home was parked in a parking lot of the manufacturer of the vehicle at the time of the incident.

Appellant contended below and now argues to us, that this accident arose out of the use of a motor vehicle and that the policy should therefore be interpreted as providing coverage. She also argues that appellee should be precluded from rejecting her claim because it did not comply with the terms of 40 P.S. § 1009.106(a)(5), regarding the rejection of claims. We do not agree with either of appellant’s contentions and therefore affirm the order.

Appellant claims that her decedent is a deceased victim as defined in the Act, at 40 P.S. § 1009.103. “Victim” is defined as an individual who suffers injury arising out of the maintenance or use of a motor vehicle; “deceased victim” means a victim suffering death resulting from injury. The definitions of victim and deceased victim are contained in the same paragraph; clearly a deceased victim’s injuries must also arise out of the use or maintenance of a motor vehicle.

Section 103 of the Act defines the term “maintenance or use of a motor vehicle” in pertinent part as “maintenance or use of a motor vehicle as a vehicle ...” (emphasis added). Key to our determination in the present case is whether the use of the motor home, which is a vehicle (see 75 Pa.C.S. § 102) was as a vehicle.

We will begin our inquiry as we did in Dull v. Employers Mutual Casualty Company, 278 Pa.Super. 569, 420 A.2d 688 (1980), with a discussion of the intent of the legislature. In Dull, we wrote,

The purpose of the No-fault Act is “to establish at reasonable cost ... a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims ...” 40 P.S. § 1009.102(b). See DuBose v. McCoy, 277 Pa.Super. 149, 419 A.2d 705 (1980); Hayes v. Erie Insurance Exchange, 261 Pa.Super. 171, 395 A.2d 1370 (1978); Singer v. Sheppard, 33 Pa.Cmwlth. 276, 381 A.2d 1007 (1978). The Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq., which provides that “[w]ords and phrases shall be construed ... according to their common and approved usage,” id. § 1903, also provides that statutes such as the No-fault Act “shall be liberally construed to effect their objects and to promote justice.” Id. § 1928(c). However, “[wjhen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id. § 1921(b). In Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), our Court stated: “Historically, the courts of this Commonwealth have . . . found coverage for the insured in close or doubtful insurance cases. The tendency has been that if we should err in ascertaining the intent of the legislature ..., we should err in favor of coverage for the insured.” Id., 265 Pa.Super. at 187, 401 A.2d at 1162-63 (footnote omitted).

We find no appellate decision from Pennsylvania courts that deal with the question before us. However, we agree with the conclusion reached by the New York Supreme Court, Appellate Division, which was faced with an almost identical situation in Reisinger v. Allstate Insurance Company, 58 A.D.2d 1028, 397 N.Y.S.2d 53 (1977). In Reisinger, the plaintiff had sought to recover under the No-fault Act for injuries suffered when the gas cook stove in the insured “mini motor home” exploded during the preparation of breakfast. As in this case, the motor home was parked at the time of the accident. Rejecting the claim, the New York court explained:

The No-fault coverage required by the statute applies for use of the motor vehicle qua motor vehicle, not the use of equipment built into the vehicle to serve some other function.” (citing inter alia, 12 Couch on Insurance 2d § 45:47) 58 A.D.2d at 1028, 397 N.Y.S.2d at 52, 53.

We would add that the construction of the statute urged upon us by appellant would require that we ignore the statute’s mandate that the accident result from use of the vehicle as a vehicle. Yet, in construing the language of a statute, the court must assume that the legislature intended that every word of the statute would have effect. See Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979), Lukus v. Westinghouse Electric Corporation, 276 Pa.Super. 232, 419 A.2d 431 (1980). Furthermore, it is assumed that the legislature uses words in their standard, or accepted, sense. See Commonwealth v. Ashford, 263 Pa.Super. 100, 397 A.2d 420 (1979).

The word “vehicle” is not defined in the No-fault Act, but the definition found in the Motor Vehicle Code is adopted by reference. (See 40 P.S. § 1009.103). The Motor Vehicle Code defines vehicle as, “Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks.” See 75 Pa.C.S. § 102.

The use of the refrigerator and stove in the preparation of a meal is not a use as a device of transportation. We do not find this a close or doubtful case. The plain meaning of the statutory terms calls for rejection of appellant’s claim. The decedent was not a motor vehicle accident victim and therefore the purpose of the Act would not be effectuated by making No-fault payment to appellant. See Dull v. Employers Mutual Casualty Company, supra.

Appellant argues, however, that appellee should be barred from rejecting her claim because the company did not comply with the terms of 40 P.S. § 1009.106, Section 106(a)(5) of the No-fault Act. In fact, appellee admits that it did not give prompt written notice of the rejection of the claim. The company claims that its failure to do so was caused by its loss of the claimant’s file. We are not concerned, however, with the merits of appellee’s defense to its noncompliance. Excused or no, the statute in no way provides a justification for barring the rejection of claims for failure to comply with Section 106.

Appellant admits that the statute provides no such remedy but urges that we create it judicially. This we cannot do. As we explained in Smith v. Harleysville Insurance Company, 275 Pa.Super. 246, 418 A.2d 705 (1980), “A court should not rewrite a statute to provide penalties not deemed necessary by the legislature.” Id., 275 Pa.Super. at 248, 418 A.2d at 706. In Gurnick v. Government Employees Insurance Co., 278 Pa.Super. 437, 420 A.2d 620 (1980), we wrote in denying claimant’s plea for punitive damages for failure to comply with Section 106,

Under the Statutory Construction Act of 1972, 1 Pa.C.S. § 1501 et seq., “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id. at § 1921(b). The language of the No-fault Act is clear regarding what remedies are available to appellant. If the legislature intended to provide for punitive damages in situations in which insurance companies willfully refuse to pay no-fault benefits, it easily could have so provided.

Id., 278 Pa.Super, at 443, 420 A.2d at 623.

Similarly, if the legislature intended to provide for forfeiture of the right to reject a claim, it could have so provided.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176; 40 P.S. § 1009.101 et seq.

      . Of course, we do not condone appellee’s disregard of the law. We are, however, without a basis for imposing the relief appellant seeks.


text:
    437 A.2d 54
    COMMONWEALTH of Pennsylvania, Appellant, v. Derek GREEN.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Nov. 13, 1981.
    Petition for Allowance of Appeal Granted Jan. 14, 1982.

      Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Donald M. Moser, Philadelphia, for appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   BROSKY, Judge:

Derek Green was convicted by a jury of burglary and robbery on April 15, 1977. Green then filed post-verdict motions included in which he asserted that his “waiver of [Pennsylvania Rule of Criminal Procedure 1100] without an exact and precise rule extension date is a violation of [the Rule]...” A motion in arrest of judgment was granted. The Commonwealth appeals.

Green was arrested on January 5, 1974. At that time, Rule 1100 stated that trial should commence 270 days later, or, in this case, on or before October 2, 1974. On August 14, 1974, Green waived Rule 1100. The Commonwealth states that he waived it indefinitely. Green states it was only waived until September 23, 1974, the date the trial court set for trial. On March 24, 1977, Green filed a petition to dismiss pursuant to Rule 1100(f). The petition was denied. Trial commenced on April 14, 1977, 1195 days after Green was arrested.

In Commonwealth v. Manley, 491 Pa. 461, 421 A.2d 636 (1980), our Supreme Court said:

It is clear that “Rule 1100, like the right to a speedy trial which it protects may be waived.” Commonwealth v. Myrick, [468 Pa. 155, 159, 360 A.2d 598, 600 (1976)]. The Commonwealth must prove the validity of the waiver, however, by showing that it was the product of an informed and voluntary decision. Id., Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978). On this record, we cannot conclude that the December 9 waiver evidences an intelligent decision by appellant to waive his Rule 1100 rights in toto. As in Commonwealth v. Coleman, supra, the statement signed by appellant contains no indication that he understood the notice and scope of the right which he was waiving, [footnote omitted] Although an on-the-record colloquy is not necessary, we do require proof that the defendant understood the consequences of his act.

Id., 491 Pa. at 468, 421 A.2d at 640.

The waiver in the instant case is evidenced by a form providing only that Rule 1100 is waived and by an on-the-record colloquy. The form contains absolutely no information indicating that the appellee “understood the nature and scope of the right which he was waiving.” Id. There is also an on-the-record colloquy which provides additional information regarding Green’s understanding of the waiver. The record discloses the following exchange between the trial court and the appellee during the colloquy:

Q. Do you understand that these cases must be tried by the Commonwealth within 270 days? Do you understand that?
A. Yes, sir.
Q. And do you understand that period will end around October 2nd of this year?
A. Yes, sir.
Q. Are you willing to waive that right to have these cases tried within the 270 days?
A. Yes.
Q. Is it further your desire to have this waived because you want to have your outstanding homicide disposed of first.
A. Yes.

Then in an exchange between appellee’s attorney, Moser, the Commonwealth’s attorney, Murray, and the court which immediately followed the colloquy, the record indicates as follows:

The Court: When is that homicide case listed for trial, do you know?
Mr. Murray: I don’t know that it has a date.
Mr. Moser: Mr. Green says sometime in September. The Defendant: After Labor Day.
Mr. Moser: I know the motions have been disposed of in his homicide case.
The Court: I am going to fix a trial date in these cases of September 23.

The trial court relied in substantial part on our decision in Commonwealth v. Robinson, 269 Pa.Super. 398, 410 A.2d 316 (1979), in reaching its decision. We stated:

Appellant argues that his waiver on May 23, 1975 was only for the 38 day period until June 30. The opinion of the lower court construed this waiver as an unconditional one with no time limits. Although the signed waiver appears to be as the trial judge states, the docket entry that shows the case was continued until June 30 contradicts that conclusion. Our Supreme Court quoted the Superior Court majority in Commonwealth v. Coleman, 241 Pa.Super. 450, 454-55, n.1, 361 A.2d 870 in saying:
“The court’s failure to specify a date certain . . . cannot operate to deprive appellant of his Rule 1100 rights. It is just as likely as not that appellant wanted a continuance for no more than thirty days...” Emphasis added in Commonwealth v. Coleman, 477 Pa. 400, 405-406, 383 A.2d 1268, 1271 (1978).
When applying this rule to the case before us, we cannot conclude that appellant waived his Rule 1100 rights indefinitely. The judge’s failure to make a definite date on one docket entry but mark a date certain on another entry evidences the confusion this type of waiver creates in Rule 1100 cases. Absent convincing arguments that the waiver met all the requirements for validity and voluntariness, Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 498 (1976), one can only hold appellant waived Rule 1100 until June 30 as reflected on the docket entry.

The Commonwealth contends that the trial date was only set after Green’s indefinite waiver was accepted and furthermore, that the indefinite waiver is not prohibited by Commonwealth v. Coleman, supra, because we cannot apply that decision retroactively. We agree. The Rule 110 waiver colloquy clearly states:

Q. Are you willing to waive that right to have these cases tried within the 270 days?
A. Yes.
Q. Is it further your desire to have this waived because you want to have your outstanding homicide disposed of first?
A. Yes.

(Emphasis added.) We are satisfied that the waiver was motivated by a desire to have the homicide case disposed of first. The record also indicates that Green had certain expectations as to when that proceeding would be “disposed of.”

Nevertheless, the record indicates that the appellee had not viewed September 23, 1974 as a date certain until he brought this appeal. His petition to dismiss under Rule 1100 states:

3. That on August 14, 1974, the Defendant waived the 270 day Rule in reference to his outstanding robbery and related charges.
4. That at the time of his waiver of the 270 day Rule an exact and precise extension date was not set.
5. That the failure to set an exact and precise extension date is a violation of Pennsylvania Rule of Criminal Procedure 1100(c) and therefore the defendant must be discharged since an unreasonable period of time has passed.
6. That although the Defendant waived his rights under Rule 1100, an exact and precise date should have been set since the failure to set a date also violates the Defendant’s due process rights and also his right to a fair and speedy trial.

And at the hearing on the petition appellee’s counsel stated:

THE COURT: He waived the 270 day Rule; is that right?
MR. MOSER: That is correct, August 14 of 1974, without a date certain. It was an open-ended waiver.
THE COURT: What is the status of the case now?
MR. HENRY: Status of the case is it’s in Judge Goldman’s room.
MR. MOSER: At the end of the week I believe. If I may read you—I don’t know which docket this is.
THE COURT: Are all these cases going to be tried together.
THE COURT: What is your motion?
MR. MOSER: I ask for dismissal. I also cited—I don’t know if I cite it in there, Commonwealth versus the Mayfield Case. Perhaps Your Honor would like to review it from the Supreme Court. It was filed October 8, 1976 where they speak' about the fact that you cannot circumvent the Rule. That if you in fact waive Rule 1100 a date certain must be set, as provided by Rule 1100-c. They also talk about—I am sure the District Attorney is going to say—defendant can waive any rights. But the Court also speaks about the fact that the public has an interest in having these cases disposed of.

The record also discloses that September 23, 1974 was the date at which appellee’s various criminal cases were in part consolidated. It was not a date at which trial was to commence. Thus, it is apparent to us that the waiver into which appellee entered was for an indefinite period of time.

In Commonwealth v. Coleman, supra, our Supreme Court said:

We agree with Judge Hoffman’s position, and in the future we will require that continuances be granted for a specified time to put an end to this troublesome problem.
The Commonwealth argues that refusing to adopt the trial court’s position would force all prosecutors to challenge any defense requests for a continuance. By requiring trial courts to set a specified time for any continuance, however, the Commonwealth will be able to accurately compute the time as required by Rule 1100.

Id., 477 Pa. at 406, 383 A.2d at 1271. (Applied specifically to waivers in Commonwealth v. Robinson, supra.) Thus, because the court stated its Rule was prospective only, we are obliged to rule that the waiver was not defective simply because no specific date was set. We are also satisfied that the waiver was entered into voluntarily and knowingly. Therefore, it was effective. Commonwealth v. Manley, supra. In turn the effective waiver of Rule 1100 was for an indefinite period of time.

Next the Commonwealth asks whether constitutional colloquy requirements should be applied to Rule 1100 waivers. This issue was discussed in Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976), where our Supreme Court said:

Rule 1100 is a rule of criminal procedure designed to implement and protect a defendant’s constitutional right to a speedy trial. Its particular terms, however, are neither directly granted by nor required by the Constitution. Nevertheless, the basic requirements for making a valid waiver of constitutional rights, as outlined above, are instructive in our consideration of the validity of a claimed waiver of the protections of rule 1100. Thus a waiver which would be formally adequate to waive a constitutional right would, a fortiori, be sufficient under the Federal Constitution to waive the protection of Rule 1100. In this case the record contains not only an on-record colloquy but also a statement signed by the defendant and endorsed upon the indictment indicating the defendant’s willingness that trial time be extended. Thus the Commonwealth’s claim that appellant waived the protection of rule 1100 is formally valid, for either the colloquy or the signed statement would by themselves be sufficient record indication that the waiver was, prima facie, informed and voluntary.

Id., 468 Pa. at 161, 360 A.2d at 600-601.

Our Supreme Court has discussed the burden of proof the Commonwealth must meet in Commonwealth v. Coleman, where the court said:

In Commonwealth v. Mamon, 449 Pa. 249, 256, 297 A.2d 471, 475 (1972), we stated: “Merely signing a consent form prepared prior to interrogation will not usually suffice to prove a valid waiver.” While Mamón was concerned with Fourth and Fifth Amendment Rights, we believe the same principle is applicable in the instant case. Regarding any rights guaranteed by either the United States Constitution or the Pennsylvania Constitution, for a waiver of those rights to be valid, the Commonwealth must prove by a preponderance of the evidence that the alleged waiver was intelligently made. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Before finding a valid waiver, we must be convinced that an accused knows the nature of the constitutional rights involved. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974). The form signed by appellee offers no explanation of what the right to speedy trial involves and we thus refuse to find a waiver on the basis of this form. [Footnote omitted]

Id., 477 Pa. at 407, 383 A.2d at 1271. It appears clear to us that our Supreme Court has stated what is required of a Rule 1100 waiver. While the decision in Commonwealth v. Coleman, supra, is not applicable to this case, to the extent that it discusses waiver forms which lack specific dates to which a case is continued, we believe that the burden upon the Commonwealth is clearly stated in Commonwealth v. Coleman, supra.

We hold that the waiver in the instant case was voluntarily and knowingly entered into, as evidenced by the full colloquy between the appellee and the court. We hold the waiver was constitutionally valid. Accordingly, the decision of the trial court is reversed. We remand to the trial court for the reinstatement of appellee’s sentence.

      . A review of the record indicates that the case was delayed by the unavailability of courtrooms, unavailability of codefendant’s counsel and the availability of the appellee at various times. While we do not specifically hold that these delays would have been excludable from the Rule 1100 period, it is apparent to us that there appears to be ample justifiable cause for the delay. Nevertheless, appellee has not argued that any of this delay was impermissible. We do not decide anything in this regard.


text:
    437 A.2d 58
    6 & 8 BUILDERS SUPPLY, INC., Appellant, v. Donald A. BUELL and Shirley A. Buell, his wife, and Donald J. King, a/k/a and d/b/a Jeff King, Contractor.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1980.
    Filed Nov. 13, 1981.

      Stephen H. Hutzelman, Erie, for appellant.
    Mark E. Mioduszewski, Erie, for appellees.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

The appellant, 6 & 8 Builders Supply, Inc., sold building supplies on open account to Donald J. King, a contractor, to be used in part in the construction of a home for appellees, Donald A. Buell and Shirley A. Buell, who are husband and wife. 6 & 8 Builders brought an action against King for breach of contract and a separate action against Donald A. and Shirley A. Buell for $11,923.25 plus interest on the theory of unjust enrichment. A “lis pendens” of action was issued against Donald Buell and Shirley Buell.

The Buells then filed a petition for rule to show cause why the issuance of the “lis pendens” should not be set aside and the indexing of the lis pendens be stricken of record, alleging they were not parties to any contract for and/or sale of the building supplies by and between 6 & 8 Builders and King; that Buells have paid King for that portion of the construction completed by him. Essentially, the Buells contended their property was in no way the subject of the suit and that a verdict in favor of 6 & 8 Builders should not affect their property. 6 & 8 Builders filed an answer and the case was argued. The court entered a memorandum and order, striking the “lis pendens.” From that order, 6 & 8 Builders appeals. We find that the appeal is interlocutory and accordingly order it quashed.

6 & 8 Builders poses three questions for our consideration on appeal. They are:

1. Whether the trial court improperly narrowed and restricted the application of lis pendens.
2. Whether the Defendants’ petition properly brought the challenge to the doctrine of lis pendens before the Court.
3. Whether the trial Court’s order of April 15, 1980, is appealable to this Court at this time.

(Appellant’s brief, page 2.) We do not discuss questions one and two, having determined that this appeal is interlocutory.

In McCahill v. Roberts, 421 Pa. 233, 219 A.2d 306 (1966), a suit was brought by the plaintiff sought to have title to a building judicially declared, sale of real estate enjoined and other appropriate relief. A “lis pendens” issued. Subsequently, the defendants filed a petition with the court asserting a sale had been consummated with a third party and that the trial court should issue a rule to show cause why the “lis pendens” should not be lifted from the estate. After argument, an order issued “releasing the entire real estate from any asserted claim of the plaintiffs and limiting the plaintiffs relief in the equity action to the cash value of the building.” Id., 421 Pa. at 236, 219 A.2d at 308. Our Supreme Court stated further:

A motion has been filed to quash the appeal on the ground that the order appealed from is interlocutory. We cannot reach this conclusion. The court’s order is final in that it effectively puts the plaintiffs “out of court” so far as their present claim is concerned, i. e. full and complete ownership of the building with the right of removal. See Posternack v. American Cas. Co. of Reading, 421 Pa. 2, 218 A.2d 350 (1966). The motion to quash will, therefore, be overruled.

Id., 421 Pa. at 236-237, 219 A.2d at 308. In the instant case, the action did not have as its subject matter the title to or sale of real estate. Rather, 6 & 8 Builders sought damages only. The order of the trial court striking the “lis pendens” does not place 6 & 8 Builders “out of court” so far as their claim is concerned. Therefore, having found that the appeal is interlocutory, it is quashed.


text:
    437 A.2d 60
    COMMONWEALTH of Pennsylvania, v. William Glenn FLEEGER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1981.
    Filed Nov. 13, 1981.

      James E. McLaughlin, Pittsburgh, for appellant.
    Robert P. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

On June 15, 1979, appellant pleaded guilty to two counts of robbery in the Common Pleas Court of Butler County. Two concurrent sentences of llVfe months to 23 months imprisonment were imposed, followed by a term of three years probation. Fleeger was given credit for time spent during pre-conviction detention and was released from prison and placed on probation on November 16, 1979 after a decision granting him parole was rendered.

On March 10, 1980, the appellant was arrested on various charges in Allegheny County. On April 30, 1980, a hearing was held in Butler County to determine whether appellant had violated his probation. The trial court held probation had been violated because appellant was held for trial in Allegheny County. Fleeger was sentenced to serve 18 months to 36 months imprisonment. A motion to vacate sentence was filed and denied. This appeal followed.

Appellant was subsequently acquitted on all charges in the Allegheny County court on August 6, 1980. On August 8, 1980, the trial court refused to entertain any motion to vacate or modify appellant’s sentence. Fleeger then filed a motion for supersedeas with this court which was granted per Brosky, J. on August 28, 1980. We reverse the decision of the trial court.

Appellant asserts that the trial court erred in imposing a sentence upon the appellant which was in excess of the sentence already imposed. Essentially, he contends he should not have been forced to serve anymore of a sentence than the remainder of his original term of imprisonment. Furthermore, the appellant contends that the trial court’s revocation of his probation requires reversal because no Gagnon II hearing was held.

First, we note that the focus of a probation revocation hearing is clear.

The focus of a probation violation hearing, even though prompted by a subsequent arrest, is whether the conduct of a probationer indicates that the probation has proven to be an effective vehicle to accomplish rehabilitation and a sufficient deterrent against future anti-social conduct.

Commonwealth v. Kates, 452 Pa. 102, 114-115, 305 A.2d 701, 708 (1973). The probation revocation hearing also differs from a trial in that the Commonwealth need prove only a probation violation by a preponderance of the evidence. Commonwealth v. Brown, 281 Pa.Super. 348, 350, 422 A.2d 203, 204 (1980), and evidence which is inadmissible at trial may be admitted at the probation revocation hearing. Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616 (1975). Thus, it is quite possible for a person to be acquitted of charges brought against him and yet have his probation revoked based upon the existence of those charges being brought against him. Commonwealth v. Brown, supra. However, we hasten to add that a bare assertion of an arrest, “without a conviction, is lacking in probative value. Thus, before a court may revoke probation, factual evidence, in addition to the fact of the arrest, must be presented.” Commonwealth v. Spinozzi, 236 Pa.Super. 32, 35, 345 A.2d 181, 183 (1975).

The appellant first remonstrates that the probation violation sentence is illegal because it exceeds the sentence originally imposed upon him. Thus, appellant directs our attention to his original sentence of IIV2 to 23 months imprisonment and asserts that the probation violation sentence of 18 to 36 months imprisonment was illegal because it exceeded the unserved portion of his original sentence. Appellant had served approximately 10 months of his sentence when he was paroled. Thus, only IV2 to 13 months of his original sentence remained to be served. He claims a more lengthy sentence places him in jeopardy twice.

In Commonwealth v. White, 264 Pa.Super. 495, 499-500, 400 A.2d 194, 196 (1979), we said:

Initially, the double jeopardy prohibition of the federal constitution entails a trilogy of rights.
“It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishment for the same offense.” North Carolina v. Pearle, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 [664-665] (1969) (emphasis added) (footnotes omitted).
[Emphasis in original] [citation omitted]. In determining whether appellant was subject to multiple punishment, the rule in this Commonwealth is an order of sentence for purposes of double jeopardy analysis.6 See Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967); Commonwealth v. Stewart, 257 Pa.Super. 334, 344 n. 11, 390 A.2d 1264, 1269 n. 11 (1978).

However, as we note in footnote six to our opinion in Commonwealth v. Stewart, supra:

6. An exception to this rule applies to cases in which a defendant is re-sentenced following a violation of the terms of probation. To avoid a claim of double jeopardy in such cases, the initial order of probation is deemed a mere “conditional” order and is not considered a “final order” of sentence which is increased by the subsequent re-sentence. See, e. g., Commonwealth v. Colding, 482 Pa. 112, 393 A.2d 404 (1978); Commonwealth v. Vivian, 426 Pa. 192, 231 A.2d 301 (1967).

In Commonwealth v. Colding, 482 Pa. 112, 353 A.2d 404 (1978), our Supreme Court applied these principles in a probation revocation case. It said:

We believe the Pearce rationale is applicable to the case at bar. Like the Pearce Court, we perceive no double jeopardy prohibition against imposition of a sentence which is more severe than that originally vacated [footnote omitted] when an intervening sentence of probation has been violated. This conclusion flows logically from the initial premise that a “vacated” sentence is of no legal effect. Moreover, any fear that a possibility of enhanced punishment will chill a defendant’s option to seek modification of a sentence pursuant to 12 P.S. § 1032, supra, n. 10, is offset by a requirement that any such enhancement be justified by the defendant’s conduct subsequent to the original sentencing.
In summary, the case at bar presents a sentence validly vacated, see n. 2 supra, and replaced by a lesser sentence in the form of probation. It was only following a violation of probation by fresh criminal conduct that the court meted out a penalty arguably more severe than the original one. In these circumstances we see neither a double jeopardy problem nor the possibility that a defendant’s opportunity to seek modification of a sentence will be chilled by our holding. Cf. North Carolina v. Pearce, supra. Appellant’s contentions to the contrary must be rejected.

Id., 482 Pa. at 120, 393 A.2d at 408-409.

In the instant case, the appellant pleaded guilty to two counts of robbery. One can be sentenced up to 20 years for commission of a robbery. The appellant received a significantly lesser sentence. While we recognize that this case does not involve an imposed sentence subsequently replaced in its entirety by probation, we are aware of the fact that a probationary term was included in sentencing upon receipt of appellant’s plea.

The appellant directs our attention to Commonwealth v. Tomlin, 232 Pa.Super. 147, 336 A.2d 407 (1975), in which we said:

If a trial court suspends sentence and places the defendant on probation, the court is not limited by a term of probation in sentencing the defendant who has violated a condition of probation. Commonwealth v. Cole, 222 Pa.Super. 229, 294 A.2d 824 (1972). Cole, however, articulates a caveat to this power: “If a defendant is sentenced, but the judge chooses to suspend sentence pending a period of probation, the trial judge may re-sentence the defendant if he violates that probation. The maximum period of the re-sentence is limited, however, to the maximum term under which the defendant was originally sentenced.” 222 Pa.Super. at 231, 294 A.2d at 825 (emphasis added).

(Emphasis supplied) id., 232 Pa.Super. at 149, 336 A.2d at 408-409. The instant case does not involve a situation where appellant received a probationary sentence after a suspended sentence. Thus, appellant’s argument is misplaced.

Accordingly, we recognize that our Supreme Court has held that when a sentence of probation has been violated, a more severe sentence than that originally imposed, may issue. Furthermore, the probationary sentence, herein, was not imposed after a term of imprisonment was vacated and replaced by a probationary term, but was imposed in conjunction with a term of imprisonment. Finally, we note the the probation violation sentence did not exceed the maximum sentence which may be imposed for a robbery conviction, when combined with the time appellant has already served, Cf. 61 Pa.C.S.A. § 331.25. Therefore, we hold that the trial court acted properly when it sentenced the appellant after finding that he had violated his probation.

Next, appellant argues that “The trial court’s revocation of appellant’s probation constituted error and requires reversal.” He asserts no “proper” Gagnon II hearing was held during his probation revocation proceedings. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The appellant notes in his brief: “In this case the trial court found that appellant’s hearing before the District Magistrate [at which the magistrate found sufficient facts existed in order to hold appellant for trial on the charges by which the probation revocation procedure was triggered] satisfied the requirements of a Gagnon I hearing. Appellant’s argument is not convincing.

In Commonwealth v. Parker, 244 Pa.Super. 113, 116-117, 366 A.2d 941 (1976), we held in the parole context:

First, we have held that so long as a parolee has received a probable cause (i. e. Gagnon I hearing, it is permissible to postpone the Gagnon II hearing pending the trial of the charges upon which the parole revocation is based. Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616 (1975). We have also held that a preliminary hearing resulting in a parolee’s being held for court complies with the requirements of a Gagnon I hearing. Id. See also Commonwealth v. Spinozzi, 236 Pa.Super. 32, 345 A.2d 181 (1975); Commonwealth v. Ball, 235 Pa.Super. 581, 344 A.2d 675 (1975).

The trial court properly held that the preliminary hearing satisfied the requirements of a Gagnon I hearing. Thus, the trial court “properly” held a Gagnon II hearing at which appellant’s probation was revoked. The court also properly concluded that it could hold a probation revocation hearing prior to the trial on the charges out of which appellant’s probation was revoked. Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701.

Finally, Fleeger contends that the facts upon which his probation was revoked were insufficient. As we noted earlier, a bare assertion of an arrest “without a conviction, is lacking in probative value. Thus, before a court may revoke probation factual evidence, in addition to the fact of arrest, must be presented.” Commonwealth v. Spinozzi, 236 Pa.Super. at 35, 345 A.2d at 183; Commonwealth v. Warren, 250 Pa.Super. 522, 379 A.2d 1271 (1977).

The only evidence presented at trial was that appellant had been arrested and that, as the parole agent for Butler County stated:

My recommendation is to detain pending disposition of criminal charges for the following reasons: Serious nature of the charges indicating that Mr. Fleeger has reverted to his former pattern, an aggressive criminal behavior; two, a prima facie case has been established before a case has been established before a local district magistrate; and three, Mr. Fleeger had proven in the past that he presents a threat to the community and the present charge seems to substantiate that danger.

Accordingly, the only evidence which was presented other than the bare assertion that an arrest had been made, recommended not that the appellant’s probation be revoked but that he should be detained pending disposition of charges held against the appellant. The tenor of the parole agent’s remarks indicates that he believed that probation revocation, in appellant’s case, should be contingent upon a conviction. The trial court supported its findings upon the evidence and evidence that appellant had previously been convicted of robbery in Kentucky.

Thus, no evidence concerning the circumstances of appellant’s arrest was submitted. The trial court was presented only the evidence that an arrest occurred and that a parole agent believed the existence of this arrest was sufficient to justify detaining appellant until the charges were determined. In light of our holding in Commonwealth v. Spinozzi, supra., we cannot decide that the evidence was sufficient to justify the revocation of appellant’s probation.

Accordingly, the decision of the trial court must be reversed and the case is remanded to the lower court for resentencing consistent with this opinion.

MONTEMURO, J., concurs in the result.

PRICE, J., did not participate in the consideration or decision of this case.


author: PER CURIAM:

text:
    437 A.2d 64
    Lillian Ruth GOLDBERG, Appellant, v. Albert W. GOLDBERG.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed Nov. 13, 1981.

      Stephen G. Brown, Philadelphia, for appellant.
    Gilbert I. Yaros, Philadelphia, for appellee.
    Before SPAETH, BROSKY, and HOFFMAN, JJ.
   PER CURIAM:

This is an appeal from the order of the lower court dismissing appellant’s exceptions following a non jury trial. We are unable to reach the merits of the appeal, however, because the order dismissing appellant’s exceptions has not been reduced to judgment and docketed.

It is now well-settled that “orders dismissing exceptions following nonjury trials are interlocutory and nonappealable until judgment has been entered on the docket.” Murray v. Abcon, Inc., 291 Pa.Super. 428, 429, 435 A.2d 1301, 1302 (1981). See Pa.R.A.P. 301(c); Heffner v. Bock, 287 Pa.Super. 345, 430 A.2d 318 (1981); Penstan Supply Co. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981). Accordingly, because judgment has not been entered on the docket, we must quash this appeal.

Appeal quashed.


text:
    437 A.2d 65
    Stephen GDOVIC, Appellant, v. CATHOLIC KNIGHTS OF ST. GEORGE.
    Superior Court of Pennsylvania.
    Argued Nov. 13, 1980.
    Filed Nov. 13, 1981.

      Steven H. Wyckoff, Pittsburgh, for appellant.
    John F. Becker, Pittsburgh, for appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   PER CURIAM:

Following a non-jury trial in this action of assumpsit the trial judge entered a verdict on December 10, 1979 in favor of the defendant-appellee and against the plaintiff-appellant. On December 21, 1979, the appellant filed exceptions to the non-jury verdict. On February 14, 1980, the appellant’s exceptions were dismissed and the Prothonotary was ordered to enter judgment in favor of the appellee and against the appellant on payment of any required fee. Thereafter, on March 10, 1980, the appellant filed objections to the trial transcript asking that certain revisions be made to the transcript. The trial court below entered an order on March 10th which refused to make changes in the transcript. (The appellant appears to claim that this order of March 10, 1980 was entered on March 11, 1980). The appellant then appealed to our Court on March 11, 1980 from the order of February 14, 1980 and the order of March 11, 1980.

An order denying exceptions following a non-jury trial is interlocutory and unappealable. Penstan Supply Co. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981). Accord, Lashner v. Redevelopment Authority of the City of Philadelphia, 286 Pa.Super. 549, 429 A.2d 659 (1981); Unterberger v. Life Assurance Co. of Pa., 286 Pa.Super. 469, 429 A.2d 34 (1981); Slaseman v. Myers, 285 Pa.Super. 167, 427 A.2d 165 (1981). While the appellant’s brief states that judgment was entered against him, no judgment was in fact entered. An appeal may not be entertained until the order is reduced to judgment and docketed. Pa.R.A.P. 301(c). See Lashner v. Redevelopment Authority of the City of Philadelphia, supra; Unterberger v. Life Assurance Co. of Pa., supra. Because the order denying appellant’s exceptions has not been reduced to judgment and docketed, this appeal must be quashed.

Appeal quashed.


text:
    437 A.2d 66
    Joseph M. HESTER and Mattie Hester, his wife, v. Ronald BAGNATO, trading as R&R Electronics, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 22, 1981.
    Filed Nov. 13, 1981.

      Ronald Bagnato, appellant, in pro. per.
    Edwin J. Strassburger, Pittsburgh, for appellees.
    Before CERCONE, President Judge, and MONTGOMERY and VAN der VOORT, JJ.
   PER CURIAM:

This appeal arises from Appellant’s refusal to obey an Order of Court enforcing an out-of-court settlement agreement. Although settlement was reached by the parties’ counsel, it was not honored and Appellees then requested a court order enforcing the agreement. Neither Appellant nor his attorney appeared to oppose this request and an order was so entered on August 21, 1979, by the Honorable Marion Finkelhor. Again, Appellees’ counsel attempted to settle this matter amicably. When his efforts proved fruitless, the instant action was filed, seeking to hold Appellant in contempt for failing to comply with Judge Finkelhor’s order. Appellant’s wife represented him at this hearing before the Honorable Emil E. Narick. Judge Narick entered an order declaring Appellant in contempt of the order of Judge Finkelhor and giving Appellant an opportunity to purge himself by paying the agreed-upon settlement sum. Prior to the imposition of any sanctions, Appellant filed this appeal. Because the order of Judge Narick was interlocutory, we quash the appeal.

This Court has jurisdiction of “all appeals from final orders of the courts of common pleas. . . . ” 42 Pa.C.S.A. § 742. (emphasis added.) It is clear that, unless sanctions are imposed, an order declaring a party in contempt is interlocutory. In re Elemar, Inc., 44 Pa.Cmwlth. 515, 404 A.2d 734 (1979). Since there is no final order by the lower court, we are without jurisdiction to hear this appeal. Cedar Valley Civic Association v. Schnabel, 239 Pa.Super. 486, 362 A.2d 993 (1976). Therefore, we quash this appeal as interlocutory.