text:
    467 A.2d 5
    COMMONWEALTH of Pennsylvania v. Ignacio C. ROSARIO, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1982.
    Filed Oct. 14, 1983.
    Richard J. Makoul, Allentown, for appellant.

      Jane Roach, Assistant District Attorney, Allentown, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for possession of a controlled substance and possession with intent to deliver a controlled substance. Appellant argues that he is entitled to a new trial because the search warrant under which the controlled substance in question was seized was invalid. We agree, and therefore reverse and remand for a new trial.

On October 15, 1979, a warrant was obtained to search appellant’s residence. The affidavit in support of the request for the warrant alleged:

1. That during the past month (Oct. 5, 1979) we received a complaint that Carmelo Cruz a/k/a Ignacio Rosario is selling dope, (heroin) Nicknamed Fat Man.
2. That during the past, the affiant did receive information from a subject, which was relative to Controlled Substances.
3. That the aforementioned information was investigated by the affiant and was found to be reliable, true and correct to the best of his knowledge and belief.
4. That from the information received, mentioned in facts # 1 and # 2 and # 3 no arrests were made, however the reliability of the aforementioned subject had been established and the subject was now considered a reliable, confidential informant by the affiant.
5. That during the second week in October, 1979, the aforementioned confidential informant did enter the aforementioned premises at 2055 Oake Lane, Bethlehem, Pa. in the presence of Carmelo Cruz.
6. Upon entering the aforementioned premises the confidential informant did observe a quantity of white powder on the table, located in the basement of the home.
7. That the aforementioned Carmelo Cruz told the aforementioned confidential informant that the white powder in fact # 6 was in fact COCAINE which Carmelo Cruz referred to as “coke.”
8. That the aforementioned information was given to the affiant by the confidential informant during the second week of October, 1979.
9. That Carmelo Cruz a/k/a FAT MAN is known by members of the vice squad as being a dealer in cocaine and maruhuana [sic].
10. That possession of cocaine and distribution are in violation of Act 64 unless statutory authority to order, prescribe or possess such drug is certified.
11. That the aforementioned Carmelo Cruz, FAT MAN, is not of that class of persons who is permitted by the Acts of Assembly to have in his possession and under his control such controlled substance.
12. That items are in violation of Act 64, Section 13(a), clause 30 Drug, Device Cosmetic Act.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court redefined the circumstances in which a magistrate may issue a search warrant based upon an anonymous informant’s tip. The Court “abandoned] the ‘two-pronged test’ established by [its] decisions in Aguilar [v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964),] and Spinelli [v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969),]” in favor of “the totality of the circumstances analysis that traditionally has informed probable cause determinations.” 462 U.S. at —, 103 S.Ct. at 2332.

In Aguilar and Spinelli, the Court held that a search warrant based upon an anonymous informant’s tip would survive constitutional scrutiny only if predicated upon a statement of: (1) the affiant’s reasons for concluding that the informant was reliable; and (2) the underlying circumstances from which the informant inferred that the items to be seized would be found in the place to be searched. In Gates, the Court held that neither of these two statements was a necessary predicate of a warrant based upon the tip of an anonymous informant. The Court emphasized, however, that both statements remain “highly relevant in determining the value of [an anonymous informant’s] report.” At —, 108 S.Ct. at 2327. Under “the totality of the circumstances analysis ____ [,] [t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will.be found in a particular place.” At —, 103 S.Ct. at 2332.

In Gates, a warrant to search the defendant’s residence and car for drugs had been issued on the basis of an anonymous letter forwarded to the Bloomingdale, Illinois, Police Department and a detective’s affidavit. The letter stated that “you have a couple in your town who strictly make their living on selling drugs.” The letter also provided the couple’s names and addresses—“They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums”—and described their modus operan-di in some detail:

Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement.
They brag about the fact they never have to work, and make their entire living on pushers.
I guarantee if you watch them carefully you will make a big catch. They are friends with some big drugs dealers, who visit their house often.
Lance & Susan Gates
Greenway
in Condominiums”
At —, 103 S.Ct. at 2325.

The detective’s affidavit recited the corroborating information obtained in the course of investigating the anonymous informant’s tip. At---, 103 S.Ct. at 2325-27. The affidavit recited that upon learning that “an Illinois driver’s license had been issued to Lance Gates, residing ... in Bloomingdale,” and that “L. Gates” had reserved a flight “to West Palm Beach, Fla., scheduled to depart from Chicago on May 5 at 4:15 p.m.,” the detective set up a team of Drug Enforcement Administration agents to conduct surveillance at both ends of the flight to Florida on which Gates had a reservation. The affidavit went on to recite that the agents reported to the detective that Gates had boarded the flight, arrived at West Palm Beach, and taken a cab to a Holiday Inn, where he went to a room registered in his wife’s name, and that he left the motel the next morning with an unidentified woman in a car bearing a Chicago license plate number registered to another car owned by Gates, and drove “northbound on an interstate frequently used by travelers to the Chicago area.” At —, 103 S.Ct. at 2326.

In analyzing whether the search warrant issued in Gates had been predicated upon probable cause, the Court concluded that the totality of the circumstances described in the anonymous letter and detective’s affidavit warranted the conclusion that there was probable cause to believe that drugs would be found in the defendants’ residence or car. First, the Court said that

[e]ven standing alone, the facts obtained through the independent investigation of Mader and the DEA at least suggested that the Gates were involved in drug trafficking. In addition to being a popular vacation site, Florida is well-known as a source of narcotics and other illegal drugs. See United States v. Mendenhall, 446 U.S. 544, 562 [100 S.Ct. 1870, 1881, 64 L.Ed.2d 497] (1980) (POWELL, J., concurring); DEA, Narcotics Intelligence Estimate, The Supply of Drugs to the U.S. Illicit Market From Foreign and Domestic Sources 10 (1979). Lance Gates’ flight to Palm Beach, his brief, overnight stay in a motel, and apparent immediate return north to Chicago in the family car, conveniently awaiting him in West Palm Beach, is as suggestive of a pre-arranged drug run, as it is of an ordinary vacation trip.
At —, 103 S.Ct. at 2334.

Second, the Court said that “the anonymous letter ... had been corroborated in major part by [Detective] Mader’s efforts____”, and that while the corroboration “may well not [have established] the type of ‘reliability’ or ‘veracity’ necessary to satisfy some views of the ‘veracity prong' of Spinelli, ____[it] ‘reduced the chances of reckless or prevaricating tale,’ thus providing ‘a substantial basis for crediting the hearsay.’ ” At —, 103 S.Ct. at 2335 (quoting Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (I960)). And finally, the Court said that “[t]he letter writer’s accurate information as to the travel plans of each of the Gates was of a character [relating to future actions of third parties ordinarily not easily predicted] likely obtained only from the Gates themselves, or from someone familiar with their not entirely ordinary travel plans.” At —, 103 S.Ct. at 2335. From this “a magistrate could properly conclude that it was not unlikely that he also had access to reliable information of the Gates’ alleged activities, [footnote omitted]” At —, 103 S.Ct. at 2335.

Thus in examining the totality of the circumstances presented in Gates, the Court particularly emphasized three circumstances: (1) the issuing authority had information independent of the anonymous tip, specifically, a description of a local and federal investigation suggesting that the persons whose property was to be searched were involved in drug trafficking; (2) the issuing authority had information derived from that investigation that corroborated the anonymous tip, thereby tending to establish the informant’s reliability; and (3) the informant’s reliability was further established by the fact that the tip predicted that the persons whose property was to be searched would behave in an unusual manner, which tended to show that the informant had direct or close access to information about their illegal activities. Of these three circumstances, two are lacking here.

First, the issuing magistrate had no information independent of the anonymous tip upon which he could base a finding of probable cause. The magistrate could not properly have relied on the statement in the affidavit “[t]hat during the past month (Oct. 5, 1979) we received a complaint that Carmelo Cruz a/k/a Ignacio Rosario is selling dope, (heroin) ...” for he was given no reason to credit this hearsay. Nor did the affiant’s statement that appellant was “known by members of the vice squad as being a dealer in cocaine and maruhuana [sic]” tend to establish probable cause to search his residence, for the affiant did not refer to the underlying factual basis for appellant’s reputation among the police as a drug dealer. In the absence of an explanation of the circumstances from which a defendant’s reputation derives, an affiant’s assertion about reputation can carry no more weight that any other bare conclusion, for the defendant’s reputation may have had its origins in unsubstantiated speculation. Thus the Court in Gates emphasized that “[sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” At —, 103 S.Ct. at 2332. Compare Spinelli v. United States, 393 U.S. at 418, 89 S.Ct. at 590 (Mere allegation that defendant was “known” to FBI as a gambler was “simple asertion of police suspicion” that added no weight to otherwise insufficient allegations in support of search warrant) (overruled on other grounds) with United States v. Harris, 403 U.S. 573, 575, 91 S.Ct. 2075, 2078, 29 L.Ed.2d 723 (1971) (Fact that defendant had reputation with affiant “as being a trafficker of nontaxpaid distilled spirits” tended to establish reliability of anonymous informant where affiant alleged that reputation was based on fact that constable had “located a sizea-ble stash of illicit whiskey in ... abandoned house under [defendant’s] control____” and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (Fact that defendant was known to police as drug user tended to establish reliability of informant where affiant alleged that he had personally observed needle marks on defendant’s arm) (discussed with approval and distinguished from Spi-nelli v. United States, supra, in United States v. Harris, supra). Cf Commonwealth v. Conner, 452 Pa. 333, 339, 305 A.2d 341, 344 (1973) (“[A]ffiant’s mere conclusion that appellant had ‘a prior history of having carried firearms’ is nothing ‘... but a bald and unilluminating assertion of suspicion that is entitled to no weight in appraising the magistrate’s ... decision.’ [quoting Spinelli v. United States, 393 U.S. at 414, 89 S.Ct. at 588]”) (overruled on other grounds); Commonwealth v. Emerich, 225 Pa.Super. 163, 169, 310 A.2d 390, 392 (1973) (Where affiant alleged that police officer told him that defendant possessed drugs, but failed to set forth basis for officer’s conclusion, allegation did not tend to establish informants’ reliability); Commonwealth v. Falk, 221 Pa.Super. 43, 290 A.2d 125 (1972) (same).

Second, the issuing magistrate had no information that corroborated the anonymous informant’s tip in any detail. Nor was any other basis for believing the informant’s tip presented to the issuing magistrate. Cf. Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983) (warrant sufficient under Gates where information was detailed and police corroborated crucial details.) There was no showing, for example, that the informant had provided reliable information in the past. The statement that “during the past, the affiant did receive information from a subject, which was relative to Controlled Substances” may not be regarded as a basis for finding the informant reliable. The provision of accurate information tends to establish reliability if the “information implicat[es] other persons in criminal activi-ty____” Commonwealth v. Benjamin, 260 Pa.Super. 1, 7, 393 A.2d 982, 985 (1978). See also Commonwealth v. White, 311 Pa.Super. 146, 152, 457 A.2d 537, 539 (1983); Commonwealth v. Minoske, 295 Pa.Super. 192, 201, 441 A.2d 414, 419 (1982); Commonwealth v. Chatman, 275 Pa.Super. 5, 9, 418 A.2d 582, 585 (1980). Here, the statement that the information was “relative to Controlled Substances,” does not implicate any other person. For all that appears, it might have been no more than a statement by the informant that he had used a controlled substance himself. In addition, it may be noted, the tip did not tend to establish the informant’s veracity by virtue of being a declaration against his interest. Commonwealth v. Am-bers, supra.

It may well be that the contents of the informant’s tip here, as in Gates, suggested that the informant had reliable information about the presence of drugs at 2055 Oake Lane. However, applying the totality of circumstances test adopted in Gates, we conclude that this single circumstance was insufficient to warrant the conclusion that there was probable cause to search appellant’s residence. The search warrant was therefore invalid and the fruits of the search should not have been introduced into evidence at appellant’s trial..

The judgment of sentence is vacated and the case remanded for a new trial.


source: Caselaw Access Project

author: SPAETH, Judge:

license: Public Domain

text:
    467 A.2d 9
    COMMONWEALTH of Pennsylvania v. Kevin BYERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 7, 1983.
    Filed Oct. 14, 1983.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for receiving stolen property. Appellant argues that the evidence was insufficient, and that trial counsel was ineffective. Finding these arguments without merit, we affirm.

-1-

The test of sufficiency is whether, after viewing the evidence in the light most favorable to the Commonwealth, and then drawing all reasonable inferences favorable to the Commonwealth, the trier of fact could find that every element of the crime charged had been proved beyond a reasonable doubt. Commonwealth v. Russell, 313 Pa.Super. 534, 460 A.2d 316 (1983).

Here, the evidence was as follows: On the morning of December 10, 1980, Mary S. Verbanets discovered that her restaurant-bar-hotel (the “120 Bar”) had been burglarized. N.T. 10-11. Among the items taken were a color television set, a clock radio, some 700 packs of cigarettes and assorted change from a cigarette machine, liquor, food, and prophylactics and assorted change from two coin-operated machines. Id. at 13-14. Mrs. Verbanets reported the burglary to the police, and on the basis of information provided by an informant, they got a warrant to search a certain apartment that evening. In the apartment they found the items taken in the burglary. N.T. 53-59. During the search of the apartment a police officer saw mail addressed to appellant and prescription vials bearing his name. Id. at 61-62. Several hours later, at about 1:30 a.m., the police found appellant, with another man, in the apartment, and arrested him. Id. at 72. Several days after his arrest, appellant, who had been released on bail, went to the 120 Bar and gave Mrs. Yerbanets a. paper bag containing prophylactics and a set of keys belonging to the bar. Id. at 35-41.

We think this evidence was sufficient to prove theft by receiving stolen property. The Commonwealth made out its case if it proved that appellant had control of property that he knew had been stolen. 18 Pa.C.S.A. § 3925. Mrs. Verbanets’s testimony showed that property had been stolen. The trier of fact—a judge sitting without a jury— could reasonably infer from the evidence regarding the nature of the property and when and where it was found that appellant knew it had been stolen. (How else did appellant suppose it had gotten to the apartment?) The trier of fact could also find from the police officer’s testimony, that appellant was in the apartment at 1:30 a.m. and that mail and prescriptions with his name on them were there, that the apartment was appellant’s, and from that evidence the trier could reasonably infer that appellant had control of the stolen property. The trier could also find control from the evidence that appellant had returned some of the stolen property. While some of the evidence was circumstantial, the Commonwealth was entitled to prove its case by circumstantial evidence, Commonwealth v. Axe, 285 Pa.Super. 289, 427 A.2d 227 (1981), Commonwealth v. Worrell, 277 Pa.Super. 386, 419 A.2d 1199 (1980), so long as the circumstances proved “fit so closely together as to justify a finding of guilt beyond a reasonable doubt.” Commonwealth v. Axe, supra, 285 Pa.Super. at 292, 427 A.2d at 229. Here, we think that was the case.

-2-

Appellant next argues that trial counsel was ineffective because he failed to preserve a best evidence rule issue. As already indicated, at trial a police officer testified that he saw mail addressed to appellant and prescription vials bearing appellant’s name on a dresser in the apartment where appellant was later arrested. N.T. 61. Trial counsel objected that “unless these articles [the mail and the prescription vials] are present and accounted for, otherwise we’re talking about written hearsay.” Id. The trial court overruled this objection. N.T. 61. Given the phrasing of counsel’s objection, it is probable that a best evidence issue was not preserved. Whether it was preserved is not important, however, for assuming that it was not, the question argued now is that trial counsel was ineffective for failing to preserve it.

Generally stated, the best evidence rule is that to prove the contents of a writing, the original writing must be produced, unless a sufficient reason for not producing it is shown. McCormick on Evidence 559 et seq. (2d ed. 1972). Here, the mail and the prescription forms on the vials bearing appellant’s name were writings; they were not produced; and no reason for not producing them was shown. Even so, we have concluded, the officer’s testimony that he saw appellant’s name on the mail and prescription vials did not violate the best evidence rule. Or to state our conclusion in terms of this case: since the officer’s testimony did not violate the best evidence rule, trial counsel was not ineffective in failing to make and preserve the argument that it did violate the rule.

First, we think that had the objection to the officer’s testimony been made on best evidence grounds, the trial court would not have abused its discretion in overruling the objection. The court might have compared the mail and prescription forms with “inscribed chattels”. In cases involving inscribed chattels the decision whether to require the chattel itself depends upon a sound exercise of the trial court’s discretion. See generally McCormick, supra at 562 (trial court should have discretion to apply best evidence rule or not in light of such factors as need for precise information as to exact inscription, ease or difficulty of production, and simplicity or complexity of inscription) and 4 Wigmore, Evidence § 1182 at 422 (Chadbourn rev. 1972) (rational and practical solution is to allow trial court in exercise of its discretion to require production of inscribed chattel whenever it seems highly desirable in order to ascertain accurately a material fact).

This above principle is illustrated by United States v. Duffy, 454 F.2d 809 (5th Cir.1972), cited by both appellant and the Commonwealth. There, the defendant, Duffy, was charged with knowingly transporting a stolen vehicle in interstate commerce, and the question on appeal was whether oral testimony that a shirt, found in the trunk of the stolen vehicle and bearing the laundry mark “D-U-F,” was admissible without production of the shirt itself. The court said:

The “Rule” is not, by its terms or because of the policies underlying it, applicable to the instant case. The shirt with a laundry mark would not, under ordinary understanding, be considered a writing and would not, therefore, be covered by the “Best Evidence Rule”. When the disputed evidence, such as the shirt in this case, is an object bearing a mark or inscription, and is, therefore, a chattel and a writing, the trial judge has discretion to treat the evidence as a chattel or as a writing. See 4 Wigmore, Evidence § 1182 and cases cited therein; McCormack, Evidence 411-412 and cases cited therein. In reaching his decision, the trial judge should consider the policy-consideration behind the “Rule”. In the instant case, the trial judge was correct in allowing testimony about the shirt without requiring the production of the shirt. Because the writing involved in this case was simple, the inscription “D-U-F”, there was little danger that the witness would inaccurately remember the terms of the “writing”. Also, the terms of the “writing” were by no means central or critical to the case against Duffy.. The crime charged was not possession of a certain article, where the failure to produce the article might prejudice the defense. The shirt was collateral evidence of the crime. Furthermore, it was only one piece of evidence in a substantial case against Duffy.
454 F.2d at 812.

Here, as in Duffy, the writings were simple and there was little danger that the officer would have an inaccurate memory of the name on them, especially since the name he saw was the name of the man he arrested shortly after-wards. Moreover, appellant’s name on the mail and prescription vials was only one piece of evidence in what was a reasonably substantial case against him. For the principal significance of the name was to prove that the apartment was appellant’s and thus to prove appellant’s control of the stolen property in the apartment. But even without the evidence that the apartment was appellant’s, appellant’s control was sufficiently proved by his return of some of the stolen property a few days after his arrest.

A second and related reason the trial court would have been entitled to refuse to apply the best evidence rule is that the writings in question might have fairly been regarded by the court as only “collateral evidence”. To be sure, “collateral” must not be defined so loosely, or broadly, as to defeat the purpose served by the best evidence rule, but if care is exercised, it is a useful concept. According to McCormick, supra, at 565-66, three principal factors should play a role in deciding whether a writing is collateral:

These are: the centrality of the writing to the principal issues of the litigation; the complexity of the relevant features of the writing; and the existence of genuine dispute as to the contents of the writing.
Id. at 566 (footnotes omitted).

Here, all three of these factors would have supported a ruling that production of the mail and prescription vials was not required. As already observed, when considering the sufficiency of the evidence, these writings were not nearly so central to the proof of the elements of the offenses charged—control of the stolen property and knowledge that it was stolen—as was the evidence of appellant’s presence in the apartment and his return of some of the property to the 120 Bar. As for the complexity of the writing, there was none. Nor was there any dispute about the contents of the writings.

With respect to this last factor, some further comment may be appropriate. The best evidence rule is of particular importance in cases involving such writings as a will or contract. For in such cases the decision may turn upon knowing exactly what words were used. See Warren v. Mosites Construction Company, 253 Pa.Super. 395, 401, 385 A.2d 397, 400 (1978) (plurality opinion) (“The best evidence rule is controlling only if the terms of a writing must be proved to make a case or provide a defense.”); Ledford v. Pittsburgh and Lake Erie Railroad Co., 236 Pa.Super. 65, 75, 345 A.2d 218, 224 (1975) (Objection to admission of typewritten copy of handwritten inspection report of gondola car from which plaintiff fell. Held: “Best Evidence Rule is ordinarily only literally applicable to the proof of the contents of documents when the contents of the documents are material to, as contrasted with mere evidence of, the issues at bar. Beyond that, the evidentiary ruling of the trial court allowing ‘secondary evidence’ should not be reversed except for a grave abuse of discretion____”) (citations omitted); Commonwealth v. Pollack, 174 Pa.Super. 621, 101 A.2d 140 (1953) (identification of stolen toaster by oral testimony not violation of best evidence rule where inventory slip showing serial number of stolen toaster not introduced; matter to be proved was that toaster was stolen, not serial number on inventory slip). However, it would be a mistake to suppose that the rule should be limited to cases when the writing is of central importance. For the rule also serves to protect against fraud, mistake, and misleading, any of which may arise from admitting inexact or incomplete testimony of the contents of a writing while not requiring production of the writing itself. Suppose, for example, that the party invoking the best evidence rule claims that writings admittedly not central never existed, or that their contents were not as testified to but were significantly different. In such a case it might well be an abuse of discretion for the trial court not to apply the rule, for by requiring the production of the writings the court might enable the credibility of the witness, and so the integrity of the entire case, to be better appraised. See generally McCormick, supra at 501.

Here, however, there is no suggestion in the record or appellant’s brief that trial counsel had any basis for claiming either that there were no mail and prescription vials in the apartment or that if there were, they did not have appellant’s name on them. The argument, rather, is that the mail and forms were “central or critical,” Brief for Appellant at 14, and as we have discussed, we do not believe they were. Appellant, citing the same paragraph in McCormick that we have just cited, does argue that the officer may have misread the name and address on the mail and vials, id., but we are not persuaded that this possibility was so real as to justify a decision that trial counsel was ineffective. Rather, in our opinion the record supports the conclusion that had trial counsel objected to the officer’s testimony on the basis of the best evidence rule, the trial court would have ruled as a proper exercise of its discretion that production of the writings was not necessary. Counsel’s failure to make the objection therefore did not render him ineffective.

Affirmed.

      . Specifically, the police found a T.V. set belonging to the 120 Bar, a bag with 272 packs of cigarettes, a number of bottles of liquor, a clock-radio, and a large quantity of various denominations of coins, wrapped and unwrapped. N.T. 58-64. Mrs. Verbanets could only positively identify the T.V. set, N.T. 59-60, which is understandable inasmuch as the common nature of the other items renders positive identification almost impossible. However, where one is searching for A, B, C, D and E, which were stolen in a group, and one finds what appears to be all of these items in one place, the fact that A is susceptible of positive identification justifies the inference that the B, C, D, and E found are the same B, C, D, and E as were in the group stolen.

      . Appellant argues that "[the] prophylactics were never identified as those stolen from the machine in the bar.” Brief for Appellant at 16. We think the trier of fact could reasonably infer that they were. See note 1, supra.


author: BROSKY, Judge:

text:
    467 A.2d 14
    COMMONWEALTH of Pennsylvania v. June O’BRYANT, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1980.
    Filed Oct. 14, 1983.
    Petition for Allowance of Appeal Denied Dec. 27, 1983.

      Victor J. DiNubile, Jr., Philadelphia, for appellant.
    Alan J. Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and HOFFMAN, JJ.
   BROSKY, Judge:

In June, 1978 appellant June O’Bryant was found guilty by a jury of charges of robbery and conspiracy. He was sentenced to a term of imprisonment of eight to sixteen years, to be followed by a probationary term of five years. This appeal followed.

The incident which led to his arrest occurred on December 17, 1977 when a restaurant known as Ellis’ Luncheonette was robbed at gunpoint by two men, one of whom wore a ski mask and was subsequently identified as appellant Mr. O’Bryant.

On appeal Mr. O’Bryant argues that the lower court erred in denying a request made by him to be tried without a jury. This argument was raised also by Mr. O’Bryant’s co-defendant, William Sorrell, as well as by other appellants. Our Supreme Court considered their claims that 42 Pa.C.S.A. 5104(c) pursuant to which each of them had been denied the right to waive jury trial, is unconstitutional. The Court held that the statute is unconstitutional since it conflicts with Pa.R.Crim.Proc. 1101. The case was remanded to us for disposition consistent with the Supreme Court’s opinion. In view of that opinion, we reverse and remand the case for new trial.

In addition to the jury trial question, we will address claims made by Mr. O’Bryant that the suppression court erred in finding admissible: 1) a confession made by him; 2) a gun seized from his mother’s residence, and 3) a photographic identification of him made by a witness to the robbery which led to his conviction.

Prior to trial, Mr. O’Bryant and his co-defendant Mr. Sorrell moved pursuant to Pa.R.Crim.Proc. 1101 to be tried without a jury. That request was denied by the lower court because it believed that 42 Pa.C.S. 5104(c) gave to the Commonwealth a right to jury trial equal to that of a defendant. The Commonwealth demanded a jury trial.

In Commonwealth v. Sorrell, supra our Supreme Court did find 42 Pa.C.S. § 5104(c) unconstitutional. Based on that opinion we recently remanded for new trial in Commonwealth v. Giaccio, 311 Pa.Super. 259, 457 A.2d 875 (1983). As in Giaccio we remand this case for new trial with instructions to the lower court that if the appellant on retrial again states his intention to waive jury trial, the court should proceed under Rule 1101 to decide whether to approve the waiver.

We turn now to appellant’s suppression arguments.

We note at the outset that on appeal from the denial of a suppression motion we will consider only the evidence presented by the Commonwealth and so much of the evidence for the defense as fairly read in the context of the record as a whole remains uncontradicted. Commonwealth v. Baker, 299 Pa.Super. 241, 445 A.2d 544 (1982).

Appellant argues that evidence of photo identifications of him should have been suppressed.

At trial the two eyewitnesses to the Ellis’ Luncheonette testified and identified appellant as one of the perpetrators of the crime. Both witnesses, Selina Bailey and Howard Bartlett, had been shown photo arrays prior to trial.

On cross-examination by appellant’s counsel, Ms. Bailey was asked whether she had been shown such an array and if so, with what result. We agree with the Commonwealth’s contention that since appellant introduced the photo identification by Ms. Bailey, he cannot claim error in its introduction.

Furthermore, we note that at the start of the suppression hearing appellant’s counsel did not move to suppress the identification by Ms. Bailey, but questioned only Mr. Bartlett’s identification.

Having determined that a complaint as to Ms. Bailey’s pre-trial identification is not properly before us, we turn to the question of whether evidence of Mr. Bartlett’s pre-trial identification should have been suppressed.

Mr. Bartlett, who was employed at Ellis’ Luncheonette at the time of the robbery, was shown a photo array at his home on January 4, 1978. The array consisted of nine frontal photographs of black males. Mr. Bartlett identified the photo of June O’Bryant. The officer who showed Mr. Bartlett the photos testified that he did not tell the witness that he believed that a photo of one of the perpetrators was in the group and that any identifying information attached to the pictures was hidden.

Indeed, appellant does not now allege that the array was suggestive. Instead, he argues that evidence of the identification should have been suppressed because the witness Mr. Bartlett did not appear at the suppression hearing. In support of his claim he cites Commonwealth v. Lee, 262 Pa.Super. 280, 286, 396 A.2d 755, 757 (1978) in which we said, “at a hearing on a motion to suppress an ‘on the scene’ identification it is essential that the identifying witness testify.”

Lee, decided after the date of appellant’s suppression hearing, has been recently overruled insofar as it established a per se rule requiring the presence of identifying witnesses at suppression hearings.

In Commonwealth v. Thompkins, 311 Pa.Super. 357, 457 A.2d 925 (1983) we abandoned the Lee rule and held that,

The essential criteria in determining whether or not evidence of pre-trial identification is admissible is its reliability under all of the circumstances disclosed by the record. The question for the suppression court is whether the challenged identification has sufficient indicia of reliability to warrant its admission even though the confrontation procedure may have been suggestive.
Id., 311 Pa.Superior Ct. at 362-63, 457 A.2d at 928 (footnote deleted) (emphasis in original).

As we explained in Thompkins citing Manson v. Brath-waite, 432 U.S. 98, 113, 114, 97 S.Ct. 2243, 2252, 2253, 53 L.Ed.2d 140, 154 (1977), the following factors are to be taken into consideration in assessing the reliability of identification evidence:

... the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
Commonwealth v. Thompkins, supra, 311 Pa.Super. at 363, 457 A.2d at 928.

As we have indicated, it is not contended that the photo array shown to Mr. Bartlett was suggestive. Appellant contends, however, that aside from suggestiveness, the Commonwealth had a burden to show the reliability of the identification. We believe appellant misconstrues the purpose of a suppression order.

As we noted in Thompkins, supra, 311 Pa.Superior Ct. at 363 n. 7, 457 A.2d at 928 n. 7.

It should be emphasized that exclusionary rules are designed to prohibit improper police conduct____ The exclusion of identification testimony is proper when improper police conduct results in an impermissible suggestive confrontation. The primary focus is on police action, (citations deleted) (emphasis in original).

It is true that we have considered the factors outlined in Manson v. Brathwaite, supra, even when we have determined that the procedure was not suggestive. See Commonwealth v. Johnson, 301 Pa.Super. 13, 446 A.2d 1311 (1982); Commonwealth v. Linder, 284 Pa.Super. 327, 425 A.2d 1126 (1981). In neither case, however, did we state that we were required to consider the circumstances surrounding the identification.

In fact in Linder, supra, 284 Pa.Superior Ct. at 337, 425 A.2d at 1131, we noted that “a pre-trial identification will not be set aside unless the facts demonstrate that the identification procedure ‘was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification”.

In Manson v. Brathwaite, the suggestiveness of the identification procedure was conceded by the prosecution. The court went on, then, to consider the totality of the circumstances to determine whether despite the suggestiveness, the identification had sufficient reliability to be admissible. The court said that short of “a very substantial likelihood of misidentification” such evidence is for the jury to weigh. Id. 432 U.S. at 116, 97 S.Ct. at 2254.

Similarly in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the court considered the issue of whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive.

The case presented to us, on the other hand, is one in which suggestiveness is not even alleged. No improper police conduct is to be deterred. Under these circumstances we do not find the identification inadmissible.

Appellant also argues that a gun seized from his mother’s home should have been suppressed because the search warrant in the possession of the searching officers was based in part on stale evidence. His specific complaint is that the allegation in the warrant as to his residence was stale because it dated back to October, 1977. The warrant was issued on January 5, 1978.

It is true that stale evidence cannot supply the probable cause necessary to issuance of a search warrant. See Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582 (1975).

In Commonwealth v. Ryan, 300 Pa.Super. 156, 170, 446 A.2d 277, 284 (1982) we wrote, “Courts are reluctant to set a hard and fast rule as to what constitutes staleness of information for a search; such a determination must be made on a case by case basis.”

At the suppression hearing the officer who secured the search warrant testified that the address named as appellant’s residence was one he had given the police when he was arrested in October, 1977. Additionally, the officer stated that appellant had been arrested at the residence on previous occasions. The residence was that of appellant’s mother and other family members. Under these circumstances, we will not find the information, which was at most three months old, stale.

We note that appellant also argues that the gun should be suppressed because in a separate homicide case in which appellant was the defendant, the lower court suppressed it as having been seized pursuant to an invalid search warrant.

The trial court opinion makes mention of the suppression by another judge of the same court, but explains that the judge who presided in the instant case did not feel bound by the earlier ruling.

In support of that conclusion, the lower court cites Commonwealth v. Brown, 473 Pa. 458, 375 A.2d 331 (1977). In that case our Supreme Court refused to extend collateral estoppel to instances in which a defendant wished to take advantage of a ruling in a case in which he was not a party.

The court in Brown relied upon 18 Pa.C.S.A. § 306(g) which specifically permits the conviction of an accomplice even though the person who was supposed to have committed the offense has been acquitted. In explaining its decision the court affirmed that in criminal cases, collateral estoppel is available only if mutuality is present. That is, the issue of fact must have been determined in a suit between the same parties.

See also Commonwealth v. Hamlin, 302 Pa.Super. 86, 87-88 n. 1, 448 A.2d 538, 539 n. 1 (1982).

In the instant case, however, appellant seeks the benefit of a prior ruling in which he was the defendant. Brown and Hamlin do not prohibit invocation of collateral estoppel in such an instance and in fact suggest that because mutuality would be present under the facts as averred, collateral estoppel does apply.

The record before us, however, does not contain information about the earlier order. We leave to the lower court on remand the task of determining whether in fact a prior adjudication had been made that found the search warrant defective. If so, collateral estoppel can be invoked by appellant.

We come finally to appellant’s contention that a confession made by him following his arrest should have been suppressed because it was obtained in violation of the Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) six hour rule.

Appellant contends that the Commonwealth failed to meet its burden of proof as to its compliance with the Davenport rule. The Commonwealth must show by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth v. Baker, supra.

The Commonwealth produced the testimony of the arresting officer who said that appellant was arrested on January 10, 1978 at 3:00 p.m. He was warned of his Miranda rights and questioned at 3:55 and again at 4:15. The officer testified that appellant was taken to the Police Administration building where he arrived at 8:25 and where arraignment began at 8:52.

We find the Commonwealth to have met its burden.

Judgment of sentence reversed and remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982).

      . See Commonwealth v. Sorrell, 319 Pa.Super. 103, 465 A.2d 1250 (1983).

      . No claim is made that the in-court identification of appellant by either witness was tainted by pre-trial activities.

      . Given our disposition of the afore-discussed issues and remand for new trial, we need not reach the remaining questions raised by appellant, which allege trial error.


text:
    467 A.2d 18
    Arthur R. STOUT, Carole Stout, Arthur R. Stout, husband of Carole Stout, Gail Stout, a minor, by Arthur R. Stout, her guardian, Robert Stout, a minor, by Arthur R. Stout and Carole Stout, his wife, parents of Gail Stout and Robert Stout, Appellants, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY, a stock insurance company.
    Superior Court of Pennsylvania.
    Argued March 17, 1981.
    Filed Oct. 14, 1983.
    Petition for Allowance of Appeal Denied May 21, 1984.

      George A. Conti, Jr., Greensburg, for appellants.
    Donald W. Bebenek, Pittsburgh, for appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.

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

   BROSKY, Judge:

The primary issue before us in this appeal is whether certain provisions of the Motor Vehicle Safety Responsibility law, (hereinafter, financial responsibility law) in effect at the time the instant suit was commenced, applied to all policies of insurance issued in the Commonwealth. We have concluded that the Act governed only those policies submitted to the Secretary of Revenue as proof of financial responsibility and that its provisions are therefore not applicable to this case. For the reasons that follow, we affirm.

Appellants commenced this action to recover damages for injuries they suffered when the automobile in which they were traveling was struck by a vehicle driven by Clyde James Jones. The automobile operated by Mr. Jones was owned by Hamilton Buick & Pontiac, Inc., which company had loaned the car to Mr. Jones while his mother’s automobile was being repaired.

In suits against Mr. Jones, appellants recovered judgments totaling $98,132.60, none of which had been paid when the present suit was initiated.

It is appellants’ contention that Universal Underwriters Insurance Company, which had issued a “garage” policy to Hamilton Buick is liable to them under the terms of a rental endorsement to that policy or, in the alternative, under the terms of Pennsylvania’s financial responsibility law.

The parties stipulated to the following facts below:

There was no contract between Jones and Hamilton relating to use of the Buick automobile. There was no monetary charge imposed against Jones by Hamilton for use of the Buick automobile. There were no representations to Jones by Hamilton relating to insurance protection.
[In the suits between the Stouts and Jones], Universal Underwriters did not extend coverage to Jones or defend [him],

The policy issued to Hamilton by Universal defines “automobile hazard” as one of the following hazards for which insurance is afforded as indicated in the schedule. Among the hazards listed as covered is: “the ownership, maintenance or use of any automobile owned by the named insured while furnished for the use of any person.”

With respect to the automobile hazard, the named insureds are defined as:

(a) any partner, or paid employee or director or stockholder thereof or a member of the household of the named insured or such partner or paid employee or director or stockholder while using an automobile covered by this policy or when legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, and
(b) any other person or organization legally responsible for the use thereof only while such automobile is physically operated by the named insured or any such partner or paid employee or director or stockholder, or member of the household of the named insured or partner or paid employee or director or stockholder, provided the actual use of the automobile is by the named insured or with his permission.

Appellants do not contend that they fall under the definition of insured parties. Instead, they argue that coverage should be extended to them by virtue of Pennsylvania’s financial responsibility law.

In 1970, when this accident occurred, the Motor Vehicle Safety Responsibility Act imposed sanctions on persons who had been involved in automobile accidents and had not provided recompense for the damages they caused. The purpose of the Act was explained by our Supreme Court in Parks v. Parks, 390 Pa. 287, 298, 135 A.2d 65, 72 (1957) in the following manner:

This statute does not require compulsory insurance on the part of the operator or owner of a motor vehicle; it is a legislative attempt to provide financial responsibility after an accident has happened so that the person injured may secure from a wrongdoer redress for his injuries. (Emphasis added.)
See also Nationwide Mutual Insurance Company, 290 Pa.Super. 129, 434 A.2d 164 (1981); Commonwealth v. Kowell, 209 Pa.Super. 386, 228 A.2d 50 (1967).

The Act required those who had been involved in accidents to show proof of their financial responsibility. One way in which that could be done was by filing with the Secretary of Revenue a certificate showing that the person involved was covered by a motor vehicle liability policy. (75 P.S. § 1277.5). The Act defined “motor vehicle liability policy,” “as said term is used in this article," as one which inter alia, “Shall insure the person named therein and any other person as insured using any such motor vehicle or motor vehicles, with the express or implied permission of such named, ...”

Appellants urge us to hold that the permissive language required to be included in policies submitted as proof of financial responsibility be deemed a part of the policy covering Hamilton. Yet the evidence adduced at trial indicates clearly that the policy had never been submitted as proof of financial responsibility.

Among the conditions stated by the policy is:

Financial Responsibility Laws: When this policy is certified as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law, such insurance as is afforded by this policy for bodily injury liability or for property damage liability shall comply with the provisions of such law to the extent of the coverage and limits of liability required by such law.

It is well established that an insurance policy must be read in its entirety and its words must be given their plain and proper meanings. Monti v. Rockwood Insurance Co., 303 Pa.Super. 473, 476, 450 A.2d 24, 25 (1982). Furthermore, a court should not rewrite terms of a policy or give them a construction in conflict with the accepted and plain meaning of language used in the policy. Monti, Id., 303 Pa.Superior Ct. at 476-477, 450 A.2d at 26.

We believe the language of Universal’s policy clearly indicates that the parties intended the provisions of the financial responsibility law to come into play only if and when the policy were offered as proof of financial responsibility. Such a construction is entirely consistent with the terms of the law itself which defines a motor vehicle liability policy as one offered as proof of financial responsibility.

This issue is one of first impression in Pennsylvania, but in reaching our decision we were guided by the opinions of courts in other jurisdictions which were confronted with the same issue.

In Manchester Insurance and Indemnity Company v. Universal Underwriters Insurance Company, 5 Ill.App.3d 847, 285 N.E.2d 185 (1972), the Illinois Appellate Court analyzed a policy the relevant terms of which were identical to those before us. The court was urged, to apply the permissive language of that state’s financial responsibility law to the policy, but declined to do so holding that the Act’s provisions “come into play only when the policy is posted to ensure future financial responsibility.” Id. at 852, 285 N.E.2d at 189 (emphasis in original). See also Moyer v. Aron, 175 Ohio St. 490, 196 N.E.2d 454 (1964) (looking to the definition of “policy” in the financial responsibility law); Universal Underwriters Insurance Company v. State Farm Mutual Automobile Insurance Company, 166 Mont. 128, 531 P.2d 668 (1975); Farmers Alliance Mutual Insurance Co. v. Bakke, 619 F.2d 885 (1980) (10th Cir.1980); Christensen v. State Farm Mutual Automobile Insurance Company, 52 Haw. 80, 470 P.2d 521 (1970).

We turn next to appellants’ argument that a rental endorsement attached to the Universal policy provided them with coverage.

The “garage liability” portion of the policy states that The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of ... bodily injury ... to which this insurance applies, caused by an occurrence and arising out of garage operations, including only the automobile hazard for which insurance is afforded as indicated in the schedule ...

Excluded from the garage liability section is bodily injury “... arising out of the ownership, maintenance, operation, use, loading or unloading of any ... automobile ... while rented to others by the named insured unless to a salesman for use principally in the business of the named insured.”

An endorsement added to the body of the policy entitled “Customer Rental” provides:

This endorsement modifies such insurance as is afforded by the provisions of the policy relating to the following:
GARAGE INSURANCE
It is agreed that the insurance under the bodily injury liability, property damage liability and automobile medical payments coverages applies with respect to any automobile rented by the named insured to a customer of the named insured while such customer’s automobile is temporarily left with the named insured for service, repair or sale. The premium for this insurance shall not be subject to adjustment upon cancellation by the named insured. (Emphasis in original.)

Appellants contend that coverage was extended to Mr. Jones by this endorsement. We do not agree.

The garage liability section stated at the outset that it provided coverage for sums which the insured is liable. The driver, Mr. Jones, was clearly not a named insured. Nor did the policy contain a clause naming him as an insured in the instance he was driving the auto with the permission of the owner. Compare: Esmond v. Liscio, 209 Pa.Super. 200, 224 A.2d 793 (1966).

Instead, the endorsement modified the garage liability policy to the extent of covering the hazard in which the automobile is rented to one whose vehicle is being repaired.

While ambiguous terms in an insurance policy are to be construed against the insurer, see e.g. Burne v. Franklin Life Insurance Co., 451 Pa. 218, 301 A.2d 799 (1973), we do not find the terms of Universal’s policy ambiguous as to the effect of the endorsement.

While we express no opinion as to whether the loaned vehicle was or was not a “rented” one (see Gulash v. Jerry Davidson Buick, Inc., 10 Mich.App. 238, 159 N.W.2d 168 (1968)), we conclude that even if it is viewed as having been rented, Universal had not contracted to provide liability insurance to the non-owner driver. See Gulash, supra, State Farm Insurance Company v. Universal Underwriters Insurance Company, 68 Ill.App.3d 281, 24 Ill.Dec. 935, 386 N.E.2d 139 (1979), but see Manchester Insurance, supra; Hardware Mutual Casualty Company v. Farmers Insurance Exchange, 256 Or. 599, 474 P.2d 316 (1970).

We are aware that the courts of other jurisdictions have resolved the issue before us differently. Our decision is based on our reading of the policy at issue in this case. The definition of insured persons is not affected by the customer rental endorsement. It purports only to modify the garage liability portion of the policy which itself limits the liability of the company to that of paying sums owed by the insured. The garage liability section is modified to add a hazard for which the insured may seek recompense; it does not add to the list of insured persons who are entitled to coverage.

For these reasons, we affirm the order of the lower court.

MONTEMURO, J., concurs in the result.

      . Act of June 1, 1945, P.L. 1340, as amended; 75 P.S. § 1277.1 et seq., repealed April 29, 1959, P.L. 58, No. 32, art. XV, § 1501.

      . Voluntary nonsuits were entered in favor of Hamilton in those actions.


author: MONTEMURO, Judge:

text:
    467 A.2d 22
    COMMONWEALTH of Pennsylvania v. James Edward HARTZELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1983.
    Filed Oct. 14, 1983.
    Petition for Allowance of Appeal Denied Feb. 3, 1984.

      John Patrick Fonzo, Franklin, for appellant.
    William G. Martin, Jr., Assistant District Attorney, Franklin, for Com., appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Venango County entered against the appellant, James Edward Hartzell. Appellant was charged with criminal homicide in connection with the shooting death of Linda Jane Miller. A consolidated jury trial was held for the appellant and a co-defendant, Robert Middleton, in which the appellant was found guilty of first degree murder. His motions for a new trial and in arrest of judgment were denied by the trial court and he was sentenced to life imprisonment.

The appellant raises several claims of error herein. First, he contends that the evidence was insufficient to sustain a verdict of guilty to the charge of first-degree murder. Second, he contends that the trial court erred in allowing testimony concerning other criminal acts of the appellant. Third, he contends that he was denied a fair trial because his trial was consolidated with that of co-defendant, Robert Middleton. Finally, he contends that the trial court erred in allowing prejudicial testimony by a police officer concerning boot prints at the scene of the crime committed subsequent to the shooting of Miller. After due consideration of the appellant’s claims, we find them to lack merit, and consequently, would affirm the judgment of sentence of the trial court.

The appellant’s claims will be addressed seriatim beginning with the contention that the evidence was insufficient to sustain the verdict. The appellant’s argument is trifold. He contends the evidence was insufficient to prove; that he was present at the scene of the homicide; that he fired the fatal shot; and that he possessed the requisite intent to kill in order to sustain a conviction of first degree murder.

The standard which we are required to apply in reviewing the appellant’s insufficiency claim was set forth by this court in Commonwealth v. Volk, 298 Pa.Super. 294, 300, 444 A.2d 1182, 1184 (1982), in which the court said:

First, we must regard all the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the factfinder could have based the verdict and then we must ask whether that evidence along with all reasonable inferences to be drawn therefrom, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Anderson, 265 Pa.Super. 494, 402 A.2d 546 (1979); Commonwealth v. Eddington, 255 Pa.Super. 25, 386 A.2d 117 (1978); Commonwealth v. Luther, 266 Pa.Super. 240, 403 A.2d 1329 (1979).

At this point, a review of the evidence in light of this standard is appropriate.

On the evening of January 17, 1981, Robert Middleton, Jerry Rice and John Perry drove to the appellant’s house to attempt to sell to the appellant a set of stereo speakers and a .44 magnum handgun which Rice and Middleton had obtained in a burglary earlier. The handgun was loaded and kept in the glove compartment of Rice’s automobile. While at the appellant’s house they each had a few whiskey and orange juice cocktails and discussed driving into Oil City to “rob drunks”. They also discussed going to Rouse-ville to rob one Carrie Schilk, a cousin of the appellant. Rice, Middleton, Perry and the appellant left the appellant’s home at approximately 10:30 to 11:00 P.M. They were all in Rice’s automobile. Perry was dropped off at his house in Pin Oak Village and the others proceeded to Oil City.

Once there, Rice parked the vehicle. The three men went to a bar called “Scrubby’s”. Middleton and appellant stayed and had a drink. Rice left because he was underage and the barmaid refused to serve him. Rice went out to the street and waited for a victim. Rice soon became cold and returned to his automobile where he was met by Middleton and the appellant. It was approximately 1:00 A.M.

It was at this time the criminal activity, later described by some as a “crime spree”, began. Rice saw a man who was carrying several cartons leaving a nearby bar. The man got into his car. After some discussion among the felons, Rice exited the vehicle with the gun and walked over to the car and knocked on the window. The man, one William Gesin, opened the window whereupon Rice produced the pistol and demanded Gesin’s wallet. Rice took the proffered wallet and told Gesin to drive straight over the hill. He then returned to the car where the proceeds of the crime were divided.

The three men then decided to leave and re-enter Oil City as an evasive maneuver to escape detection for the Gesin robbery. Rice was driving, Middleton was in the front passenger seat and the appellant was sitting behind Middleton in the rear seat. The gun was on an arm rest between Rice and Middleton. They drove a few miles out of town and then returned to Oil City, with their ultimate destination being Rouseville. They stopped on the roadside across from the Oasis Bar so that Rice and the appellant could urinate.

At that unfortunate moment, Linda Jane Miller walked out of the Oasis Bar and toward her pick-up truck in the parking lot. After some discussion among the three men, Middleton retrieved the handgun from the car and walked across the street for the purpose of robbing Linda Miller. The appellant said to Middleton words to the effect “if she was ugly to blow her away.” Middleton followed Miller to her truck; however, she reached the truck and drove away before he could consúmate the crime.

Middleton returned to the car and, again after some discussion, the three men decided to follow her to her home and rob her there. They did, in fact, follow her toward Rouseville. Rice wanted to pass Miller because the truck was weaving back and forth across the road. The appellant said to Rice “this is a good road for it.” He also instructed Rice as to the exact moment to pass.

As Rice passed the truck he heard a shot from the back seat. The appellant said that he thought he got her. They continued up the road for about three-quarters of a mile, turned around and returned to where Miller’s truck had crashed into a ditch. Middleton got out of the car and talked to another motorist who had stopped to investigate. Middleton said he would call the police. Miller was not visible in the truck, probably because she had slumped to the floor. The men then left and proceeded to Rouseville.

The appellant gave directions to Rice leading to the home of Carrie Schilk, the appellant’s cousin. Rice’s testimony indicates that the entire time subsequent to the shooting of Miller, the gun was in the appellant’s possession. At Schilk’s house, Rice and Middleton went to the door while the appellant waited around the corner of the house. Schilk opened the door, and Middleton and Rice grabbed her and turned her around. The appellant entered and hit her on the head with the butt of the handgun. The force of the blow shattered the pistol grips. They proceeded to rob Schilk of money and personal items, and then left. Middleton also took Schilk’s pick-up truck.

Subsequent to the Schilk robbery, Middleton abandoned the truck and the three men went to a restaurant called the Villa Italia. At trial the night manager, Charles Latchaw, identified all three men as being present at the restaurant at approximately 4:00 A.M. After eating, the men left, split up the stolen items and then returned to their respective homes.

Later that morning, Rice surrendered to the police and gave them a statement implicating Middleton and the appellant. He also directed the police to where the pistol and wallet had been discarded.

The appellant raised an alibi defense. He testified that he had been with Rice and Middleton for part of the night but that they had dropped him off at his home at approximately 1:30 A.M. The appellant’s wife testified that the appellant was home at 1:30 A.M. and a neighbor testified that he saw appellant walking up his driveway at approximately 1:30 A.M. The jury discredited the alibi testimony.

Robert Middleton offered no testimony.

After reviewing the evidence, we conclude that the evidence offered by the Commonwealth was sufficient to sustain a verdict of guilty of first degree murder beyond a reasonable doubt.

First, the testimony of Rice clearly places the appellant at the crime scene. Although the testimony of an accomplice must be carefully scrutinized, Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980), it is unquestioned that a jury may convict on the uncorroborated testimony of an accomplice. Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982); Commonwealth v. Cristina, 481 Pa. 44, 391 A.2d 1307 (1978), cert. denied Cristina v. Pennsylvania, 440 U.S. 925, 99 S.Ct. 1255, 59 L.Ed.2d 479 (1979). Even though the appellant characterized Rice as a “corrupt and polluted source,” the verdict makes it evident that the jury chose to believe him and disbelieve the appellant’s alibi testimony. Credibility is a factual issue the resolution of which is for the trier of fact. Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154 (1982), cert. denied, Penn v. Pennsylvania, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982); Commonwealth v. Cristina, supra; Commonwealth v. Vitacolonna, 297 Pa.Super. 284, 443 A.2d 838 (1982).

At trial and on appeal the appellant attempts to derogate Rice’s testimony by pointing out small inconsistencies. The matters are trivial and do little to cast doubt on the veracity of the witness’ testimony. His story “was not so contradictory as to render it incapable of reasonable reconciliation.” Commonwealth v. Cristina, supra 481 Pa. at 51, 391 A.2d at 1311.

Moreover, Rice’s testimony is corroborated in many respects by the testimony of other Commonwealth witnesses. Two witnesses, one of which was the barmaid at Scrubby’s, testified to seeing Rice, Middleton and the appellant together on the night in question. William Gesin’s testimony concerning the robbery matched Rice’s testimony in detail. Carrie Schilk’s testimony was also virtually identical to that of Rice concerning her robbery. Finally, the testimony of Charles Latchaw, the night manager of the Villa Italia, positively identifying all three men as being in the restaurant at 4:00 A.M. lends strong support to Rice’s testimony and seriously detracts from that of the appellant.

The appellant’s second contention is that the evidence was insufficient to show that he fired the shot which killed Linda Jane Miller. Again we disagree. When the appellant and the others first saw Miller outside the Oasis Bar, he said, if she’s ugly, blow her away. The appellant picked the stretch of road on which to pass Miller’s truck and also said, “this is a good road for it.” The gun was on the arm rest capable of easy access to either Middleton or the appellant. However, Rice heard the shot come from the back seat, and also heard the appellant say he thought he got her. He also testified that the appellant had the gun in his control thereafter.

While there was no direct evidence that the appellant fired the shot, there was significant evidence from which the jury could reasonably infer that he did in fact do so.

Finally, the appellant contends that the evidence was insufficient to establish the requisite intent to kill to support a verdict of guilty of first degree murder. Under 18 Pa.C.S.A. § 2502(a), murder of the first degree is defined as a “criminal homicide ... when it is committed by an intentional killing.” Subsection (d) defines intentional killing as “[kjilling by means of poison, or by lying in wait, or by any other kind of willful, deliberate or premeditated killing.”

In Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614 (1981) , the supreme court reiterated the standard for establishing the specific intent to kill:

In order to sustain a conviction of first degree murder, the Commonwealth must prove beyond a reasonable doubt, that the killing was “willful, deliberate and premeditated.” Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1975); Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976); 18 Pa.C.S.A. § 2502. Since one’s state of mind is subjective, the specific intent to kill may be inferred from the perpetrator’s conduct, including the intentional use of a deadly weapon on a vital part of the body of another human being. Commonwealth v. O’Searo, supra; Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972).

Id. 493 Pa. at 414-15, 426 A.2d at 616-17. See also Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982) ; Commonwealth v. Gardner, 490 Pa. 421, 416 A.2d 1007 (1980); Commonwealth v. Meredith, 490 Pa. 303, 416 A.2d 481 (1980).

The victim herein was killed by a single bullet fired from a .44 magnum handgun. According to the testimony of Dr. Howard Griffen, the pathologist who performed the autopsy, the bullet entered the victim’s left ear and exited behind and above the victim’s right ear. The bullet caused extensive damage to the brain resulting in instantaneous death. From this alone the jury could infer that the appellant had the specific intent to kill.

Appellant, however, contends that there is no evidence of premeditation or deliberation. Again the appellant’s argument must fail. The premeditation required to establish the specific intent to kill can be formed within a short time. Commonwealth v. Wright, 458 Pa. 236, 328 A.2d 514 (1974).

Considering the statement of the appellant to the effect of “if she’s ugly blow her away” and appellant’s subsequent actions, we conclude the evidence was sufficient to establish premeditation. Commonwealth v. Pronkoskie, supra; Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), cert. denied, Pennsylvania v. Williams, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1978).

Appellant’s second claim is that the trial court erred in allowing the admission of evidence of other crimes committed by the appellant, Rice and Middleton. Specifically, appellant would have us find error in the admission of testimony regarding the armed robbery of William Gesin, prior to the fatal shooting; and also testimony regarding the robbery of Carrie Schilk, subsequent to the shooting. We decline to do so.

Our scope of review in this matter is whether the trial court abused its discretion in allowing the admission of the other crimes evidence. Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977).

The general rule, of course, prohibits testimony regarding other criminal acts. However, the exceptions under which such testimony is admissible are well established. Included are those cases where the evidence is introduced to prove: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the other; or (5) the identity of the person charged with the commission of the crime on trial. Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973); Commonwealth v. Booth, 291 Pa.Super. 278, 435 A.2d 1220 (1981).

Additionally, the probative value of the evidence must exceed its prejudicial impact. Commonwealth v. Ulatoski, supra; Commonwealth v. Hawkins, 295 Pa.Super. 429, 441 A.2d 1308 (1982); Commonwealth v. King, 290 Pa.Super. 563, 434 A.2d 1294 (1981); Commonwealth v. Hude, 256 Pa.Super. 439, 390 A.2d 183 (1978).

After analyzing the appellant’s claim under the above standard we conclude the trial court did not abuse its discretion in admitting the contested testimony.

The Commonwealth’s testimony showed that the three actors herein formulated a plan to “rob drunks” while they were at the appellant’s house. The armed robbery of William Gesin was but one manifestation of this preconceived plan. The attempted robbery of Linda Jane Miller was another. In both crimes, a similar method was utilized. The men were together in or around Rice’s car. When a victim was spotted, one member of the group was selected to carry out the robbery. The same weapon was used. The crimes occurred within one hour of each other, and took place within a few miles of each other. In both crimes there was a possibility, because of the use of a deadly weapon, of the escalation into violence, including serious injury or death. The fact that only one of the crimes resulted in such an escalation is not a sufficient distinction between them as to preclude the application of the common scheme exception. Finally, the prejudice to the appellant engendered in the minds of the jurors because of the testimony of the Gesin robbery is not so great as to out-weight the probative value.

The testimony concerning the robbery of Carrie Schilk also shows that this robbery arose out of the plan formulated by the men while at the appellant’s house. Again the crime took place close in time and space to the slaying of Miller; and again the same weapon was used in both crimes. However, a stronger reason exists to allow the introduction of this evidence. In his omnibus pre-trial motion, the appellant filed notice of his intent to raise an alibi defense; i.e. that he left the company of Rice and Middleton at 1:30 A.M. and returned home. The testimony concerning the Schilk robbery rebuts this contention and helps to establish the identity of the appellant as one of the perpetrators of the Miller robbery and shooting. Rice testified as to the appellant’s participation in the robbery of Schilk. This testimony is at least partially corroborated by the testimony of Carrie Schilk. Although she could not testify as to the exact identity of the appellant (because she was tied up and knocked unconscious by a blow to the head), she asserted that three men were involved in the robbery of the house.

Finally, we conclude that testimony concerning both the Gesin and Schilk robberies would be admissible under the intent or state of mind exception. These robberies took place in a short interval and within a relatively narrow spatial area. The testimony regarding these other crimes shows the appellant’s state of mind both shortly before and shortly after the shooting of Linda Jane Miller. It is testimony relevant to the intent to rob Miller. Because the appellant was charged with criminal homicide generally, the testimony was relevant to proving the intent to rob Miller establishing the underlying felony necessary to the charge of murder in the second degree. Commonwealth v. Murphy, 493 Pa. 35, 425 A.2d 352 (1981).

Appellant’s third claim is that the trial judge erred in ordering the consolidation of appellant’s trial with the trial of co-defendant, Robert Middleton. The appellant specifically contends that his interest and the interest of Middleton were adverse in that the Commonwealth case against Middleton was based on a theory of felony murder necessitating proof of the underlying felony; i.e. the robbery of Miller. On the other hand, the Commonwealth’s case against the appellant was based on a theory of first degree murder. Thus, he contends that he was prejudiced by the introduction of evidence regarding the underlying felony which was not vital to the Commonwealth’s case against him. This argument is specious.

In Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980), the supreme court held that:

The decision whether to sever cases against co-defendants is one within the sound discretion of the trial court. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954); Pa.R.Crim.P. 219. Such a decision will be reviewed only where there has been a manifest abuse of discretion. Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975) (opinion in support of affirmance); Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295, (1965) appeal after remand 424 Pa. 380, 227 A.2d 849 (1967). And the critical factor in one analysis is the prejudice which inures to the accused as a result of the trial court’s determination. Commonwealth v. Peterson, 453 Pa. 187, 194, 307 A.2d 264, 267 (1973); Commonwealth v. Lasch, supra, 464 Pa. at 584-85, 347 A.2d at 690.

Id. 489 Pa. at 49, 413 A.2d at 1007.

We find no abuse of discretion in the trial court’s decision to consolidate the cases. Both defendants were charged generally with criminal homicide. Regardless of the Commonwealth’s theory of prosecution, the evidence of the underlying felony was relevant to the charge against the appellant, who could have hypothetically been found guilty of second degree murder because of his participation as an accomplice in the robbery.

Moreover, there was a sound basis for the trial judge’s decision to consolidate. The evidence presented against each of the defendants was virtually identical. To require the evidence to be presented in separate trials would be repetitive.

Finally, there is no conflict between the defenses presented by the respective defendants. The appellant herein raised an alibi defense whereas Middleton raised no defense at all. These defenses are not antagonistic. Again we perceive no error.

Appellant’s final claim is that the trial court erred in allowing a police officer to testify concerning boot prints found outside Carrie Schilk’s house and how those prints matched a pair of boots later found in the appellant’s residence. This claim has been waived by the failure to include it in written post-verdict motions as required by Pa.R.Crim.P. 1123.

Accordingly, the judgment of sentence of the trial court is affirmed.

      . Co-defendant, Robert Middleton, was found to be guilty of second-degree murder.

      . Appellant also contends that the weight of the evidence supports his alibi defense, and therefore, his motion for new trial should have been granted. This argument is incorporated in the insufficiency claim and will not be addressed at length separately. However, if we were to address it separately, we would find it to have no merit.

      . It is not clear from the evidence, but it is implied that the appellant rolled down his window before firing the fatal shot. This factor must also be considered in determining the existence of premeditation.

      . Even if the claim had not been waived, we would conclude that appellant is not entitled to a new trial. The police officer testified that he saw boot prints in the snow outside Schilk’s house and made a sketch of the pattern of the print. He also testified that he seized a pair of boots from the home of the appellant. He began to testify on the comparison between the sketch and the seized boots when defense counsel objected. The objection was sustained and a curative instruction was given. We conclude that the trial court took action as quickly as it could considering the lateness of defense counsel’s objection. Moreover, a curative instruction was given and the evidence was merely corroborative of the testimony of Rice. Any error committed was harmless error.


author: WIEAND, Judge:

text:
    467 A.2d 29
    Timothy RALPH, Appellant, v. OHIO CASUALTY INSURANCE COMPANY. Timothy RALPH v. OHIO CASUALTY INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 1, 1983.
    Filed Oct. 21, 1983.

      Harold F. Kaufman, Philadelphia, for Ralph, appellant (at No. 981) and appellee (at No. 1073).
    C. Richard Morton, West Chester, for Ohio Cas. Ins. Co., appellant (at No. 1073) and appellee (at No. 981).
    Before ROWLEY, WIEAND and BECK, JJ.
   WIEAND, Judge:

The present cross appeals filed by both parties from an order of the trial court awarding work loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act are controlled by the decision of this Court in Jones v. State Automobile Insurance Association, 309 Pa.Super. 477, 455 A.2d 710 (1983).

Timothy Ralph, while a pedestrian in the vicinity of Gay Street in West Chester on October 17, 1979, was struck and allegedly injured by a motor vehicle operated by Horace Paul. Paul was an insured under a policy issued by Ohio Casualty Insurance Company. Three days later, Ralph was injured when he was shot in the chest in a bar. As a result of the shooting, Ralph was seriously injured and was hospitalized from October 20, 1979 to December 19, 1979. He subsequently submitted a claim for work loss benefits to Ohio Casualty. When information required by the insurer from Ralph and his employer was not forthcoming, the claim was denied. Ralph then commenced the instant action by filing a petition and rule.. The insurer did not object to this procedure. The court which heard the case awarded work loss benefits in the amount of $1,860.58 for the period from December 19, 1979 to February 8, 1980. Interest was also awarded at the rate of 18%, but a claim for counsel fees was denied. Both parties appealed without first filing exceptions in the trial court.

In Floczak v. Nationwide Mutual Insurance Company, 289 Pa.Super. 438, 433 A.2d 885 (1981), this Court held that an action for work loss benefits could not be commenced by petition and rule but had to proceed from the filing of a complaint or praecipe for summons. Nevertheless, in Jones v. State Automobile Insurance Association, supra, we held that the use of a petition and rule was a waivable, procedural defect. Such a defect, we held, was waived where the respondent failed to object. Although the instant proceeding was commenced by petition and rule, the defect has been waived by the insurer’s failure to object.

The Court also concluded in Jones v. State Automobile Insurance Association, supra, that, “in order to preserve issues for appellate review, a party must file exceptions to the trial court’s decision and have the exceptions passed on by the court en banc.” Id. 309 Pa.Super. at 481, 455 A.2d at 711-712. See also: Pa.R.C.P. 1038. “Appellate review is more meaningful when the trial court has first had an opportunity to review its decision and to address the specific allegations of error raised in exceptions.” Id., 309 Pa.Superior Ct. at 484, 455 A.2d at 713. The wisdom of this requirement is nowhere more apparent than where, as here, the reasoning of the trial court is elusive and the proof, as the trial court described it, was “ambiguous.” In this case, more than in most, it is important that the trial court have an opportunity to address the errors alleged on appeal.

Generally, issues not preserved by exceptions are waived. However, in accordance with the ruling in Jones v. State Automobile Insurance Association, supra, we conclude that the failure to file timely exceptions in this case should be excused. Because exceptions are nonetheless necessary to meaningful appellate review, we will remand to permit the parties to file exceptions nunc pro tunc to the order from which they have appealed.

Remanded for proceedings in accordance with this opinion. Jurisdiction is not retained.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. 1, § 101 et seq., 40 P.S. § 1009.101 et seq.


author: LIPEZ, Judge:

text:
    467 A.2d 31
    COMMONWEALTH of Pennsylvania v. Theodore BIGGS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 8, 1983.
    Filed Oct. 21, 1983.

      Patrick J. Flannery, Wilkes-Barre, for appellant.
    Robert J. Gillespie, Jr., District Attorney, Wilkes-Barre, for Com., appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   LIPEZ, Judge:

In a jury trial, defendant Theodore Biggs was convicted of rape, 18 Pa.C.S. § 3121, and incest, 18 Pa.C.S. § 4302. In this appeal, he contends that the evidence is insufficient to support the jury’s verdict on the rape charge. We agree and reverse the judgment of sentence on that charge.

In considering challenges to the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975). The test to be applied in this review of the evidence is whether, accepting as true all the evidence upon which the jury could properly have based its verdict, it is sufficient to prove each element of the crime charged beyond a reasonable doubt. Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968). Assessed by this standard, the record shows that over a period from January 25, 1979 to December 6, 1980, appellant had sexual intercourse with his seventeen-year-old daughter Marion on several occasions. Marion did so because her father told her that the Bible said that “if the mother could no longer provide as a mother, it was up to the oldest daughter, and if she could no longer do it, it would go right down to the last daughter in the family.” [N.T. 9] He also told her that if she told anyone about these incidents, he would show people pictures he had taken of her in the nude. He never struck, hit or beat her however, nor did he threaten to do so.

The jury found the defendant guilty on Count 3 of the information, charging him with incest, and Count 2 of the information, charging rape by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution. It is clear that the two elements of the crime of incest, viz., intercourse with a person within the proscribed degree of relationship and knowledge of that relationship at the time of the intercourse, are proven by this record. We also find the record sufficient to prove two of the elements of the rape charge—that defendant had intercourse with Marion Biggs and that Marion Biggs was not his spouse. The third element of that crime was not proven, however, for there is no evidence that the intercourse was accomplished through threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.

The record clearly shows that defendant never used or threatened to use force in inducing his daughter to participate in sexual intercourse. Rather, he asserted a biblical basis for the intercourse and assured his daughter’s silence by threats, not of force, but of humiliation. Although this conduct is reprehensible, it is not the conduct proscribed by section 3121 of the Crimes Code, which forbids intercourse by threat of forcible compulsion. “The crux of the offense of rape is force and the lack of the victim’s consent.” Commonwealth v. Williams, 294 Pa.Super.Ct. 93, 100, 439 A.2d 765, 769 (1982). We cannot ignore the clear import of the language of section 3121 by upholding defendant’s conviction in the absence of any evidence that Marion Biggs submitted to intercourse out of fear of an exercise of force by her father.

We will therefore reverse the judgment of sentence on the rape charge. Moreover, although the conviction for incest is supported by the evidence, it is clear that the sentence imposed by the court may have been influenced by the sentence imposed for rape. We will therefore remand for resentencing on that charge. See Commonwealth v. Lockhart, 223 Pa.Super.Ct. 60, 65, 296 A.2d 883, 886 (1972).

Judgment of sentence for rape reversed, and defendant is ordered discharged on that count. Judgment of sentence for incest vacated, and case remanded for resentencing. Jurisdiction is relinquished.