author: McEWEN, Judge:

text:
    477 A.2d 1350
    COMMONWEALTH of Pennsylvania v. Pedro A. TORRES, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed May 18, 1984.

      Eduardo C. Robreno, Philadelphia, for appellant.
    Stuart L. Haimowitz, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, McEWEN and CIRILLO, JJ.
   McEWEN, Judge:

This appeal is from a judgment of sentence imposed after appellant was found guilty by a jury of third degree murder and possessing an instrument of crime and sentenced to a term of imprisonment of from ten years to twenty years upon the murder conviction and to a consecutive term of imprisonment of from two and one-half years to five years for the weapons offense. Appellant, who is represented by new counsel, asserts that the trial assistant district attorney engaged in prosecutorial misconduct and that his two prior counsel were ineffective. We affirm.

Appellant initially contends that “[t]he District Attorney engaged in prosecutorial misconduct when he argued to the jury that the defendant did not present all the evidence which counsel for the defense indicated in his opening address to the jury would be presented at trial.” The record reflects that defense counsel, during the presentation of his opening address, stated:

We are also going to show or intend to show that ... Pedro’s life was threatened by [] the brother of the deceased. He fled the site.

When appellant failed to present evidence explaining his flight from Philadelphia to Lancaster as a result of the purported death threat, the assistant district attorney stated during his closing argument:

And we go back to something [defense counsel] told you in his opening argument. He told you he was going to show you how this defendant fled to Lancaster because he was threatened by the victim’s family. Well, where was that? Did that ever come out? You never heard that evidence.

The immediate objection made by defense counsel was noted by the trial judge who, at the conclusion of the closing argument, denied a motion by counsel for a mistrial and delivered to the jury this instruction:

Now, counsel are required to advocate most strongly in favor of their particular client’s case, to become impassioned, if they think it appropriate, and in this case there was only one objection raised which was made quietly, and the court acknowledged it. It was made by [defense counsel] during the closing address. At that time [the assistant district attorney] made reference to the defense opening statement and raised an inference that the defense did not prove that which it said it would prove in an opening statement. Ladies and gentlemen, the opening statement is not evidence. It should have no bearing on your determination as to whether or not the Commonwealth has, in fact, proven the defendant guilty beyond a reasonable doubt of any or all of the charges.
******
We pointed out to you that the defendant has no burden at all. The defendant could well have elected to stand on the weakness of the Commonwealth’s case and present no defense at all. So, in conclusion, then, the opening statements of counsel are not evidence at all. They’re not to be considered by you in any way in reaching your decision.

The trial judge in his charge to the jury the following day further instructed:

The defendant did not testify. You promised in your oath as jurors and in your individual questioning, you promised that you would not take that fact into consideration in deciding whether or not the Commonwealth had carried out its burden of proving him guilty.
******
The attorneys made reference to evidence in closing address and we remind you that their addresses are not evidence. If they differ from your recollection, you substitute your own recollection, but you may be guided by what the lawyers had to say, what they said the witnesses said and a viewpoint that they put on it, how they suggested that you might think about the case. However, as I told you, you can’t speculate. You may not act on hunches or guesses. You may use evidence and reasonable inferences from that evidence, but you can’t act on a guess or a hunch. Specifically, you may not speculate upon what Pedro Torres and [the victim] were arguing about or the reason why [the victim] was shot by whomever shot him. On the other hand, if you feel that the evidence justifies an inference, not a guess or a surmise, as to the motive for the shooting, you may be guided by such inference, but motive is not a necessary element of the crime. I didn’t tell you that the Commonwealth had to prove motive. Certainly the defense doesn’t have to prove anything.

Appellant now claims that the comments by the assistant district attorney violated (1) his Fifth Amendment protection against self-incrimination as enunciated in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and (2) the Pennsylvania anti-comment rule.

The claimed prosecutorial misconduct that we here consider focuses upon the allegation that appellant fled from Philadelphia to Lancaster. Appellant states in his brief that since he “was the only witness who could have explained why he left the Philadelphia area, the clear and unmistakable impression left by the District Attorney’s comment was that the reason [he] did not explain his absence was that he had no exculpatory explanation to produce.” Appellant argues, therefore, that the prosecutor engaged in adverse comment upon his failure to testify in his own behalf.

This Court has long recognized the principle “that the prosecutor’s remarks to the jury should not contain any adverse reference to the failure of [an accused] to offer himself as a witness in the event that he does not testify on his own behalf.” Commonwealth v. Myers, 131 Pa.Super. 258, 265, 200 A. 143, 146 (1938). The United States Supreme Court, in Griffin v. State of California, supra, declared that the Fifth Amendment as applied to the states through the Fourteenth Amendment proscribes prosecutorial comment upon the silence of an accused. “The Court [thus] recognized that allowing the prosecution to comment on the accused’s failure to testify was, in effect, allowing the failure to take the witness stand to be used as evidence against him, which in the minds of the jurors would be indicative of guilt.” Commonwealth v. Henderson, 456 Pa. 234, 238, 317 A.2d 288, 291 (1974). This concern for the effect of prosecutorial comment upon the silence of an accused is reflected in the Pennsylvania statutory anti-comment rule which states:

§ 5941. Persons who may be compelled to testify
(a) General rule. — Except defendants actually upon trial in a criminal proceeding, any competent witness may be compelled to testify in any matter, civil or criminal; but he may not be compelled to answer any question which, in the opinion of the trial judge, would tend to incriminate him; nor may the neglect or refusal of any defendant, actually upon trial in a criminal proceeding, to offer himself as a witness, be treated as creating any presumption against him, or be adversely referred to by court or counsel during the trial, (emphasis supplied).

42 Pa.C.S. § 5941(a). Any statement by the prosecutor which indicates that an accused should testify or permits an unfavorable inference of guilt to be drawn from a failure of the accused to testify, is considered an adverse reference and a statement that is, therefore, proscribed by the statute. Commonwealth v. Henderson, supra, 456 Pa. at 238, 317 A.2d at 291; Commonwealth v. Kloiber, 378 Pa. 412, 418-420, 106 A.2d 820, 824-25, cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954). Thus, “a statement which draws attention to or focuses on the fact that no one except the defendant can rebut the Commonwealth’s case falls within the proscription of the statute.” Commonwealth v. Reichard, 211 Pa.Super. 55, 58, 233 A.2d 603, 604 (1967).

It can well be argued that the statement of the prosecutor endangered the Commonwealth presentation since the “ ‘prosecutor’s statements, implied that [appellant] himself was the only one who could and should have denied the charges against him. The jury might reasonably have inferred from these statements that his failure to do so was evidence of his guilt.’ ” Commonwealth v. Davis, 452 Pa. 171, 174, 305 A.2d 715, 717 (1973) (emphasis in original) quoting Commonwealth v. Reichard, supra, 211 Pa.Super. at 60, 233 A.2d at 606. It cannot here be said, however, that appellant was the only party who could have proffered testimony concerning such threats and circumstances as inspired the fear that allegedly caused appellant to flee from Philadelphia to Lancaster. While the Commonwealth might have been better served had the prosecutor refrained from such rhetoric, however much the statement of defense counsel might have appeared a challenge, we conclude that the statement of the prosecutor did not violate appellant’s constitutional right against self-incrimination or his statutory protection from adverse comment.' We are of the further view that however questionable the statement of the prosecutor may have been, it was not so prejudicial as to constitute grounds for a new trial since (1) it was in response to an assertion by the defense; (2) the reference was not a broad, sweeping declaration but quite an abbreviated comment; (3) the comment did not even subtly suggest any inference of guilt; (4) the court provided an immediate curative instruction to the jury and engaged in a further and thorough curative effort in the charge to the jury; and (5) there was no significant evidence upon which the jury could have rendered a verdict of acquittal. See Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968); Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971), cert. denied, 405 U.S. 1046, 92 S.Ct. 1320, 31 L.Ed.2d 589 (1972). As a result, we are convinced beyond a reasonable doubt that the alleged error could not, in any event, have contributed to the verdict of the jury. Commonwealth v. Story, 476 Pa. 391, 405, 383 A.2d 155, 165 (1978); Commonwealth v. Davis, supra, 452 Pa. at 177, 305 A.2d at 719.

Appellant next contends that his prior counsel were ineffective as a result of the failure “to seek out and to call at trial defendant’s alibi witnesses and/or eyewitnesses”. When we review a claim that the stewardship of counsel was less than effective, we first ascertain whether the issue underlying the claim of ineffectiveness is of arguable merit. If the underlying claim is of arguable merit, we then determine whether the strategy chosen by counsel had a reasonable basis designed to effectuate the interests of his client. Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 698 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967); Commonwealth v. Luther, 317 Pa.Super. 41, 48, 463 A.2d 1073, 1077 (1983).

The first contention of ineffectiveness is predicated upon the allegation that appellant had informed an investigator of the existence of an alibi witness, his girlfriend, with whom appellant now claims he had been staying during the night of the murder. Appellant argues, therefore, that his pre-trial attorney was ineffective by reason of the failure to locate and communicate with this purported alibi witness. Appellant does not, however, allege he advised pre-trial counsel or trial counsel of the existence of this witness or that he even had an alibi, but instead concedes that pre-trial counsel “denies that [appellant] ever told him or his investigator that he had an alibi witness.” Moreover, he advises that “the alibi witness is now unavailable.” Appellant has thus failed to direct our attention to any evidence in the record which would indicate that the representation of counsel was less than effective in this regard. Counsel cannot be deemed ineffective when the record fails to demonstrate counsel’s awareness of a possible alibi witness. Commonwealth v. Robinson, 487 Pa. 541, 545-46, 410 A.2d 744, 746 (1980); Commonwealth v. Owens, 454 Pa. 268, 274, 312 A.2d 378, 380 (1973); Commonwealth v. Williams, 274 Pa.Super. 464, 472-73, 418 A.2d 499, 504 (1980).

As for the contention that counsel were ineffective by reason of the failure to interview potential eyewitnesses whose names were allegedly provided by the District Attorney’s office, it is settled law that “claims of ineffectiveness cannot be abstractly viewed in a vacuum.” Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983). See also Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981); Commonwealth v. Smith, 321 Pa.Super. 170, 212, 467 A.2d 1307, 1329 (1983); Commonwealth v. Mayfield, 318 Pa.Super. 450, 454-455, 465 A.2d 40, 42 (1983). When an appellant seeks to establish that counsel was ineffective for failing to call or investigate witnesses, it is not sufficient to merely allege the existence of “potential eyewitnesses who may have helped in establishing defendant’s alibi defense.” Rather, an appellant must also supply a factual basis indicating (1) the identity of the witnesses; (2) that counsel knew of the existence of the witnesses; (3) the material evidence that the witnesses would have provided; and (4) the manner in which the witnesses would have been helpful to his cause. Commonwealth v. Smith, supra, 321 Pa.Superior Ct. at 217-218, 467 A.2d at 1330; Commonwealth v. Mayfield, supra, 418 Pa.Superior Ct. at 454, 465 A.2d at 42; Commonwealth v. Jones, 298 Pa.Super. 199, 204, 444 A.2d 729, 732 (1982). Appellant has not done so. Therefore, we reject this contention.

Appellant further contends that private counsel, who first appeared for appellant at a pre-trial hearing of December 2, 1981, “never discussed the case with [appellant] prior to the date trial was scheduled to commence” on January 4, 1982. This court has rejected the notion that the brevity of the time spent by counsel in conference with an accused may constitute per se ineffective assistance of counsel, Commonwealth v. Jones, supra, 298 Pa.Superior Ct. at 204, 444 A.2d at 732 citing Commonwealth v. Owens, 454 Pa. 268, 312 A.2d 378 (1973), and has, as well, denied challenges arising from the fact that counsel did not conduct any conference with the accused until but a few moments prior to the commencement of trial. See Commonwealth v. Harper, 233 Pa.Super. 294, 334 A.2d 761 (1975). As we have earlier indicated, appellant has not here provided either the name or the nature of the testimony of any witness whom trial counsel failed to present as a part of the defense; rather, the materials purportedly furnished by appellant himself and made a part of his brief reflect that trial counsel and the brother of appellant collaborated in the preparation of a defense. Nor has a careful study of the record enabled us to discern any way in which the representation of trial counsel may have reflected either inadequate preparation or lack of familiarity with the facts of the case. The nature of the challenge to counsel’s stewardship does not constitute per se ineffective representation by counsel; and since appellant has failed to support his abstract claim of ineffectiveness with any factual averments suggesting ineffectiveness on the part of counsel, we reject this challenge without remanding for an evidentiary hearing.

Judgment of sentence affirmed.

      . Appellant was represented by court appointed counsel before he retained private counsel as trial counsel. Appellant is here represented by new counsel and it is alleged for the first time in this direct appeal that both prior counsel were ineffective.

      . 42 Pa.C.S. § 5941(a). This section of the Judicial Code is substantially a reenactment of the Act of May 23, 1887, P.L. 158, § 10, 19 P.S. § 631.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    477 A.2d 1356
    COMMONWEALTH of Pennsylvania, Appellant, v. Steven John ANDERL.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1983.
    Filed May 18, 1984.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
    Leonard Sharon, Pittsburgh, for appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is a Commonwealth appeal from the order of the Court of Common Pleas of Allegheny County granting in part and denying in part appellee’s pre-trial motion to suppress evidence. The appellee, Steven Anderl, was charged with driving under the influence of alcohol or a controlled substance, carrying an unlicensed firearm, possession of a controlled substance (cocaine), possession of a controlled substance (methaqualone), and possession with intent to deliver a controlled substance (methaqualone).

Prior to trial, the appellee filed a motion to suppress statements and physical evidence, including: (i) a valise containing a plastic bag in which were found 892 Methaqualone tablets; (2) a .38 caliber Chartiers Arms revolver; (3) a metal tube in which was found a residence of white powder, found to be cocaine; (4) the results of a breathalyzer test; and (5) statements made by the appellee. The hearing court ordered that the “gun, the contents of the valise and all confession statements, together with the breathalyzer test, be suppressed.” We agree that the gun and two of the confession statements were properly suppressed; however, we find the court erroneously suppressed the appellee’s initial statement, the contents of the valise and the results of the breathalyzer test Consequently, with respect to the initial statement made by the appellee, the contents of the satchel and the results of the breathalyzer, we reverse the order of the hearing court.

Initially, we note the standard of review for appeals from suppression orders. An appellate court is bound by the factual findings of the suppression court if they have support in the record. Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977); Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Iannaccio, 304 Pa.Super. 307, 450 A.2d 694 (1982). However, the suppression court’s order may be reversed if the legal conclusions drawn from the factual findings are in error, Commonwealth v. Jackson, 497 Pa. 591, 442 A.2d 1098 (1982); Commonwealth v. Hall, supra.

The facts relevant to this appeal are as follows. On October 2, 1980, at approximately 2:20 a.m., Officer Timothy Logue received a radio call to proceed to the scene of an accident at 260 McMonagle Road, Greentree Borough. He proceeded to the scene and there encountered a red Cadillac El Dorado in the driveway of a private residence, where it had come to rest after striking a wall adjacent to the driveway. A resident of McMonagle Road, Ronald Ambrosick, who had come out to investigate the crash, pointed out the appellee as the driver of the vehicle. Mr. Ambrosick was the one who had phoned the police and was also the one who found the appellee slumped over the steering wheel.

Officer Logue asked the appellee if he was injured or if he needed an ambulance; to which the appellee replied in the negative. At this time, more police began to arrive from Mt. Lebanon and Scott Township (The scene of the accident was close to the boundary line). Officer Logue then asked the appellee to produce his driver’s license, owner’s card and No-Fault insurance card. While the appellee was getting the cards out, Mr. Ambrosick told the officer that he [Ambrosick] had seen the appellee remove a dark colored satchel from the trunk of the vehicle and place it behind a hedge nearby. The officer walked over to the spot indicated and observed the satchel. He then asked the appellee if the satchel was his. The appellee answered no. Officer Logue looked into the unzipped satchel and saw an open brown paper bag containing a plastic bag in which there were a number of white tablets. Officer Logue showed the contents to Officer Ronald Dziezgowski of the Scott Township Police who had arrived on the scene in the interim.

At that time, Supervisor Frank Brown of the Mt. Lebanon Police approached the other two officers and informed them that they believed the appellee to be the perpetrator of a hit and run accident which had occurred nearby in Mt. Lebanon a short time before. The victim in the previous accident had stated that her vehicle was struck by a large red car. Supervisor Brown followed a trail of water or oil to a location close to the second accident scene. Supervisor Brown was informed by the two officers of the contents of the satchel. He inspected the Cadillac and ascertained that there was damage inconsistent with the present accident, yet consistent with the earlier one. Based on his observations, he put the appellee under arrest for driving under the influence and administered Miranda warnings. He also took possession of the satchel.

The Cadillac was towed to the Mt. Lebanon police station where an inventory search was conducted by Officer Donald DeMore. The inventory search uncovered a silver tube containing cocaine residue and a .38 caliber revolver. The revolver was found behind the cushion in the back seat. The appellee was asked by Officer McGall if the revolver belonged to him. He replied that it did.

The appellee was also questioned by Officer David DeMore at the Mt. Lebanon police station. Officer DeMore read the appellee the Miranda warnings and the appellee indicated that he understood them. Officer DeMore then questioned the appellee concerning the satchel. The appellee initially stated that he knew nothing about it, but when confronted with Mr. Ambrosick’s statement, he admitted seeing the case. He stated that he removed it from the vehicle and placed it on the wall so it would not be stolen.

Finally, at some point while the appellee was at the Mt. Lebanon police station, a breathalyzer test was administered to the appellee — who registered a .10% blood alcohol content.

Because of the diverse factual contexts in which each item was seized and the concomitant rules of law applicable to each, we shall address each item separately.

I. The .38 Caliber Chartiers Arms Revolver

The lower court found that the gun was seized pursuant to a search that exceeded the permissible scope of an inventory.

In Commonwealth v. Brandt, 244 Pa.Super. 154, 162-163, 366 A.2d 1238, 1242 (1976), our court, in conformity with South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), outlined the range of a proper inventory:

[T]he Commonwealth must show that the search was in fact an inventory search pursuant to the objectives laid down in Opperman, supra, and noted earlier in this opinion. The hearing judge must be convinced that the police intrusion into the automobile was for the purpose of taking an inventory of the car and not for the purpose of gathering incriminating evidence. Those facts and circumstances which the hearing judge must consider include the scope of the search, whether any items of value were in plain view, State v. Tully, [166 Conn. 126] 348 A.2d 603 (Conn.1975); the reasons for and nature of the custody, Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); the anticipated length of the custody, and any other facts which the court deems important in its determination. If, after weighing all the facts and circumstances, the court is of the opinion that it was an inventory search of an automobile lawfully in police custody, then any evidence seized as a result of this “reasonable” inventory search is admissible. If, on the other hand, the hearing judge determines that the Commonwealth has not shown that the search was part of the police caretaking function rather than their investigative function, the probable cause-warrant standard must be used for determining reasonableness.

The lower court determined that the officer’s search behind the back seat cushions clearly exceeded the “police caretaking function” and, similar to the example given in Commonwealth v. Brandt, supra, 244 Pa.Super. at 163, n. 7, 366 A.2d at 1242, n. 7, was a search to uncover “incriminating evidence.” We agree with that analysis, and hold that the evidence regarding the gun was properly suppressed.

II. The “Confession Statements"

The hearing court suppressed three statements made by the appellee; to wit: (1) the appellee’s reply to Officer Logue’s initial inquiry concerning ownership of the satchel; (2) the appellee’s replies to Officer DeMore’s interrogation at the Mt. Lebanon Police Station; and (3) the appellee’s reply to Officer McGall’s inquiry about the .38 calibre revolver. The court’s rationale for suppressing these statements was that the appellee was so intoxicated that he could not validly consent to a waiver of his Miranda rights. Miranda v. Arizona, supra. Our own inquiry in reviewing this ruling focuses on the point at which the appellee’s Miranda rights attached.

It is axiomatic that Miranda warnings must be given to a criminal suspect prior to custodial interrogation. The warnings are procedural safeguards designed to protect a defendant’s privilege against self-incrimination. Commonwealth v. Smith, 313 Pa.Super. 138, 459 A.2d 777 (1983).

The Miranda warnings and concomitant determinations whether a defendant has made a knowing and voluntary waiver of rights are now prerequisites to the admission of a confession only if an individual is “taken into custody or otherwise deprived of his freedom by the authorities in an significant way and is subjected to questioning.” (Citation omitted).

Commonwealth v. Bracey, 501 Pa. 356, 461 A.2d 775 (1983). The appellee’s Miranda rights attached at the time he was taken into custody by the police. The test for determining whether a suspect is in custody is “whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation. Commonwealth v. Chacko, 500 Pa. 571, 577, 459 A.2d 311, 314 (1983); Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980); Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977).

Applying this standard to the present case, we must conclude that the appellee was not in custody at the accident scene when he denied ownership of the satchel. We note that Officer Logue had not exercised any form of physical restraint on the appellee when he asked about the satchel. Moreover, we find that Officer Logue’s actions from his arrival on the scene to asking about the satchel would not lead a reasonable man to believe that appellee was in custody. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Commonwealth v. Chacko, supra. Cf. Commonwealth v. Horner, 497 Pa. 565, 442 A.2d 682 (1982). Officer Logue had arrived on the scene only moments before. He asked appellee if he was hurt. The appellee replied, “No.” Officer Logue then requested appellee to produce his driver’s license, owner’s card and insurance card for the purpose of writing up an accident report; and then went to get report forms. It was at this point that Officer Logue learned of the satchel from Mr. Ambrosick, retrieved the satchel and asked appellee if it was his. Any restriction of the appellee’s movement was solely the result of the accident and the condition of his vehicle, and not of the actions of the officer.

We find this case to be distinguishable from Commonwealth v. Meyer, supra. In Meyer, a defendant was in an accident on an interstate highway. A local police officer arrived, and suspecting the defendant to be intoxicated, expressly told him that he would have to wait. A second patrol car arrived and the defendant waiting in the patrol car until the State Police arrived to investigate the accident. The supreme court held that the police officer’s direction to the defendant that he must wait effectively put the defendant into custody.

The instant case presents a much different factual context. Officer Logue had only recently arrived at the accident scene when he asked about the satchel. He had not ordered the appellee to remain at the scene, nor in any other way restricted the appellee’s freedom. The officer’s request for appellee’s driver’s license, etc., was for the purpose of completing the accident report. It does not serve as a basis for a finding of custody inasmuch as it is merely part of an on-the-scene investigation by the officer. We hold that the appellant was not in custody at the time that Officer Logue asked about the satchel.. Accordingly, there was no requirement that Officer Logue inform the appellee of his Miranda rights at that time. As a consequence of this, there was no requirement that appellee waive those rights and the statement made cannot be suppressed on this basis.

With regard to the appellee’s later statements, we affirm the hearing court’s ruling. At the times relevant to those statements, the appellee was indisputably in custody, Commonwealth v. Chacko, supra, and Miranda warnings and a valid waiver of rights required prior to admission of statements. Commonwealth v. Bracey, supra.

It is the Commonwealth’s burden to prove by a preponderance of the evidence that the appellee waived his constitutional rights. Commonwealth v. Firth, 479 Pa. 333, 388 A.2d 683 (1978); Commonwealth v. Culberson, 467 Pa. 424, 358 A.2d 416 (1976). See also, Miranda v. Arizona, supra, 384 U.S. at 475, 86 S.Ct. at 1628; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The determination as to whether a knowing, voluntary and intelligent waiver was effected is to be made by viewing the totality of the circumstances. Commonwealth v. Chacho, supra; Commonwealth v. Jackson, supra. As stated in Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976):

All attending circumstances surrounding the confession must be considered in this determination. These include: the duration and methods of the interrogation; the length of delay between arrest and arraignment; the condition of detainment; the attitudes of the police toward the defendant; defendant’s physical and psychological state; and all other conditions present which may serve to drain one’s power of resistance to suggestion or to undermine one’s self-determination.

Id. 468 Pa. at 279, 361 A.2d at 290.

The hearing court determined that, based on the testimony of the police officers who observed the appellee at the time of his arrest and afterwards, the appellee was so intoxicated that he was unable to give a voluntary and knowing waiver. Officer Logue testified that: “He was, I guess you would call [sic] staggering because if I’m not mistaken I was afraid he was going to take a header. I leaned him against the hood of the Cadillac.” (N.T. May 6, 1981, at 30-31). Officer Gremba of the Mt. Lebanon police testified that: “His manner of speech was a bit incoherent and jerky and his eyes were glassy, his face was very red and flushed and his manner of walking, his gait was very— he staggered very much and could not keep his balance.” (N.T. May 6, 1981, at 38-39). Supervisor Brown confirmed Officer Gremba’s observations: “Odor of alcohol, strong; eyes, glassy; mental condition, stupefied.”

The findings of the fact of the hearing court are abundantly supported by the record. Accordingly, we conclude that the appellee’s waiver of his Miranda rights was vitiated by his intoxication and that the statements made by the appellee while in custody should be suppressed.

III. The Satchel Contents

The undisputed testimony at the suppression hearing reveals that the appellee removed the satchel from the trunk of the Cadillac and placed it behind a hedge a. few feet from the accident scene. The Commonwealth asserted that the appellee’s action constituted an abandonment of the satchel. The hearing court disagreed and found that the appellee “hid” the satchel and, “intended to retrieve it.” Thus the court concluded that the appellee continued to maintain a reasonable expectation of privacy in the satchel and its contents.

The supreme court has held that:

The theory of abandonment is predicated upon the clear intent of an individual to relinquish control of the property he possesses.
Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. United States v. Cowan, 2d Cir. 1968, 396 F.2d 83, 87. All relevant circumstances existing at the time of the alleged abandonment should be considered. United States v. Manning, 5th Cir.1971, 440 F.2d 1105, 1111. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. See Abel v. United States supra [(1960) 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668]; United States v. Edwards, 5th Cir.1971, 441 F.2d 749; Lurie v. Oberhauser, 9th Cir.1970, 431 F.2d 330. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. United States v. Edwards, supra, 441 F.2d at 753; cf. Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973).

Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216 (1976). Accord, Commonwealth v. Metzger, 295 Pa.Super. 267, 441 A.2d 1225 (1981); Commonwealth v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1980). The pertinent question therefore is whether the appellee’s action in removing the satchel from the vehicle, secreting it on the property of a third party and thereafter denying ownership of it, constitutes such a relinquishment of interest in the satchel so that appellee may no longer assert a reasonable expectation of privacy in its contents. We hold that it does.

This case invites an interesting comparison to Commonwealth v. Cubler, 236 Pa.Super. 614, 346 A.2d 814 (1975). In Cubler, a policeman responded to a complaint by a motorist that a small boy had broken his vehicle’s windshield. The motorist pointed out the boy, who then ran away. The policeman and motorist followed the boy to a house which proved to be his home. Cubler answered the door and acknowledged that the boy was her son. She then made arrangements to pay for the broken windshield.

As the officer was leaving, a neighbor approached and informed him that “while the officer was approaching the Cubler home, he saw appellant, Ettian, lean out of the back door of the house and toss a black bag into a dog house located at the rear of the house.” Id. 236 Pa.Super. at 616, 346 A.2d at 815. The officer knew that the Cubler house was under surveillance for suspected drug activity. He went to the rear of the house by means of a common walkway and saw the bag protruding from the dog house. He seized the bag, opened it and found narcotics.

A divided court affirmed the trial court’s judgment of sentence. Three judges concluded that the black bag had been abandoned. Judge Hoffman, in dissent, stated his view that abandonment requires “an intent to part with ... control permanently.” Id. 236 Pa.Super. at 624, 346 A.2d at 819. Judge Spaeth, in a concurring opinion joined by two judges, stated: “I do not think a person can be said to have abandoned property that is inside a bag and has been placed in a structure on private property.” Id., 236 Pa.Super. 619, 346 A.2d at 821.

We refer to Cubler only as a polestar for our present decision because only the concurring opinion of Judge Spaeth makes reference to the controlling reasonable expectation of privacy standard. The majority does not discuss nor apply this principle. However, we believe the case is instructive in that a finding of abandonment was made on facts much less persuasive than on those in the present case.

The appellee’s expectation of privacy in the contents of the satchel is measurably decreased by his action of hiding it on the property of an unknown third party. Thus, his expectation of privacy must be much less than that of the defendant in Cubler who hid a bag in a structure on his own property. Moreover, after Officer Logue retrieved the satchel, but before he looked inside it, the appellee denied ownership of it. United States v. Colbert, supra; Accord State v. Burgos, 185 N.J.Super. 424, 449 A.2d 536 (1982); Menefee v. State, 640 P.2d 1381 (Okl.Cr.App.1982); State v. Fournier, 448 A.2d 1230 (R.I.1982); Cf. State v. Wheeler, 416 So.2d 78 (La.1982); State v. Freeman, 64 Ohio St.2d 291, 18 Ohio Op.3rd 472, 414 N.E.2d 1044 (1980), cert. denied, Freeman v. Ohio, 454 U.S. 822, 102 S.Ct. 107, 70 L.Ed.2d 94 (1981); State v. Brown, 45 Ohio App.2d 76, 341 N.E.2d 325 (1975); See generally, LaFave, Search and Seizure, § 2.6(b) (1978); Hall, Search and Seizure, § 3.24 et seq. (1982). Under these circumstances, we see no basis upon which appellee can claim that he maintained a reasonable expectation of privacy in the contents of the satchel.

IV. The Results of the Breathalyzer Test.

The hearing court also concluded that the appellee’s intoxicated state rendered him incapable of executing valid consent to take a breathalyzer test. The appellee’s contention, however, is misconceived since breathalyzer results, like blood samples, are not testimonial evidence, they come under the protection of the fourth, not the fifth amendment. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Commonwealth v. Funk, 254 Pa.Super. 233, 385 A.2d 995 (1978). Thus, the results of a breathalyzer test are like the fruits of a search or seizure, and are admissible as such. In the present case, the warrantless seizure of the appellant’s alcohol-laden breath is valid either as a search incident to arrest, Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974), or a search necessitated by exigent circumstances; i.e., the evanescent nature of the alcohol in appellee’s bloodstream. In any event, we conclude that the trial court erred in suppressing the result of the breathalyzer test.

The order of the hearing court is reversed with respect to appellee’s initial statement, the satchel and its contents, and the results of the breathalyzer; the order is affirmed with respect to the revolver and the remaining “confession statements.”

Affirmed in Part and Reversed in Part. Remand to the trial court. Jurisdiction is not retained.

      . 75 Pa.C.S.A. § 3731(a)(1).

      . 18 Pa.C.S.A. § 6106.

      . 35 P.S. § 780-113(a)(16).

      . Id. (2 counts).

      . 35 P.S. § 780-113(a)(30).

      . We have conducted an independent review of the record and conclude that the Commonwealth would be substantially handicapped if forced to proceed to trial without the evidence suppressed. Therefore, we conclude that the Commonwealth has appealed from a final order. Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

       The term "reasonable” inventory search like the term "legal” contract is verbose. If the search is, in fact, an inventory search, it must be reasonable. For example, if while taking inventory of the contents of the car, the police remove seats, rip open the upholstery and find contraband, the evidence must be suppressed — not because the inventory was unreasonable but rather because it is apparent that

        the police were not conducting an inventory pursuant to the objectives laid down in Opperman, but were searching for incriminating evidence. (Emphasis added)

      . Although not raised by either party, we note that the appellee had standing to move to suppress the contents of the satchel under the "automatic standing" rule recently reaffirmed by our supreme court in Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457, (1983). See and compare, United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

      . We reject the proposition that an intent to permanently disassociate oneself from property is required. Often, contraband is abandoned with a dual purpose — to disassociate oneself from incriminating evidence, and to possibly recover it later. To have an expectation of privacy in property relinquished under such circumstances is not reasonable. Cf. United States v. Williams, 569 F.2d 823 (5th Cir.1978).


author: JOHNSON, Judge:

text:
    477 A.2d 1364
    COMMONWEALTH of Pennsylvania v. Ernest BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1984.
    Filed May 18, 1984.

      Peter Levin, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

Following a non-jury trial before the Honorable Charles L. Durham, Appellant, Ernest Brown, was convicted on April 8, 1982 of third-degree murder, aggravated assault, and possession of an instrument of crime. A timely appeal was taken to this court raising several questions for our consideration. We affirm.

Of paramount concern is Appellant’s contention that he did not receive effective assistance of counsel because his trial attorney did not seek recusal of the trial judge. Appellant appeared before Judge Durham on April 5,1982 expecting to plead guilty to all charges, but he changed his mind during the guilty plea colloquy and informed Judge Durham that he wanted a jury trial. Following an off-the-record discussion between Appellant, his trial counsel, and the prosecuting attorney, Appellant Brown changed his mind again and told Judge Durham that he did not want a jury trial, but rather wished to be tried by a judge in the place of a jury.

The next day, April 6, 1982, Judge Durham heard and denied Appellant’s suppression motion. Appellant had attempted to suppress a knife seized in his apartment and a statement which he had given to the police. Following Judge Durham’s denial of Appellant’s suppression motion, the trial court conducted a colloquy with Appellant concerning Appellant’s waiver of a jury trial. After explaining the various aspects and procedural advantages of a jury trial, Judge Durham informed Appellant about his knowledge of the case and offered Appellant an opportunity to have his case heard by another judge. As the following excerpt from the trial transcript indicates the trial court’s colloquy was quite thorough.

“Q. In hearing this Motion to Suppress, I passed upon the credibility of certain witnesses. It might have been against you; do you understand that?
A. Yes, I understand.
Q. If you care to have another Judge hear your case, I will send this to another court and another judge can hear your case without a jury if that is what you want; do you understand that?
A. I understand.
Q. I don’t have to be the Judge to hear your case. You can still have a waiver trial, a trial without a jury, before another Judge; do you understand that?
A. I understand.
Q. Do you want me to hear the case without a jury?
A. Yes, sir, I do.
Q. Then, you understand that I am also the Judge that heard initially that you intended to plead guilty to third degree murder; do you understand that?
A. I understand.
Q. And you changed your mind and you said you wanted a jury trial. Then, you changed your mind again and said you wanted a waiver trial. I heard all of that; do you understand?
A. Yes, sir.
Q. Now, if you want me to recuse myself, that is to say if you want me to send it to another Judge to hear it, I will do that; do you understand that?
A. Yes.
Q. Do you still want me to hear the case?
A. I do.
Q. That is your own wish; is that correct?
A. That’s right.
Q. Has anyone promised you anything to get you to waive your right to a jury?
A. No.
Q. Has anyone threatened you to get you to waive your right to a jury?
A. No.
Q. Do you have any questions? Are you satisfied with your lawyer?
A. Very satisfied.
Q. You are very satisfied with your lawyer?
A. Yes.”

(N.T., 4/7/84, at 36, 37)

Appellant’s present counsel argues that trial counsel was ineffective in failing to request recusal of the trial judge since the trial judge ruled against Appellant at the suppression hearing and was aware that Appellant had initially intended to plead guilty.

In Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978), as in the instant case, the defendant had pleaded guilty but then decided to withdraw her guilty plea. The defendant was subsequently convicted following a non-jury trial before the same judge who initially heard the guilty plea. Defense counsel in Badger did not request recusal. Unlike the instant case, however, the trial judge did not offer to recuse himself. The supreme court found that counsel’s failure to request recusation constituted ineffectiveness and granted a new trial.

In the case at bar, as distinguished from Badger, the trial judge made certain that Appellant was aware of the fact that he had heard the suppression motion and was aware that Appellant had originally intended to enter a guilty plea. On two separate occasions the trial judge indicated that Appellant could have the case heard by another judge. The decision to continue to have Judge Durham hear the case was made by Appellant with full knowledge of the trial court’s prior involvement in the case and with full knowledge the he could opt to have the case tried by another judge.

In analyzing Appellant’s claim of ineffectiveness, we must first determine whether Appellant raises an issue of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If we conclude that Appellant has raised an issue of arguable merit; we then must examine the approach employed by trial counsel in light of the available alternatives to determine whether counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). See also Commonwealth v. Stitzel, 309 Pa.Super. 43, 45, 46, 454 A.2d 1072, 1074 (1982).

In applying the traditional Maroney-Hubbard test for determining whether trial counsel was ineffective we must first look to see if an issue of arguable merit is raised. Since Judge Durham indicated on the record that he would recuse himself upon request, it is obvious that a motion for recusal made by trial counsel with Appellant’s consent would have been granted. Commonwealth v. Jones, 259 Pa.Super. 103, 393 A.2d 737 (1978). Under these circumstances we must conclude that this issue has arguable merit.

We next focus on the stewardship of counsel to see if trial counsel’s approach had some reasonable basis to effectuate his client’s interests in light of the alternatives available to him. It is important to note in the instant case that the trial judge raised the issue of recusal himself and, therefore, a motion by trial counsel was not necessary to direct the court’s attention to the recusal issue. Moreover, Appellant himself had already explicitly indicated to Judge Durham that he wanted him to hear the case.

The decision to waive a jury trial is ultimately and solely the defendant’s. Commonwealth v. Boyd, 461 Pa. 17, 29-30, 334 A.2d 610, 616 (1975). We believe that a decision by the defendant to insist that a particular judge try a non-jury case is also solely the defendant’s decision and his counsel will not be deemed to be ineffective as long as the defendant makes the decision to remain before a particular judge with full knowledge of that particular judge’s prior involvement coupled with the knowledge that, upon request, he could have another judge hear the case. Commonwealth v. Nash, 292 Pa.Super. 79, 436 A.2d 1014 (1981).

Once Appellant decided to proceed with a non-jury trial before Judge Durham, trial counsel was precluded from moving for recusal. Had trial counsel sought recusal of the trial court under these circumstances, his actions would have been contrary to the express wishes of his client. We refuse to brand trial counsel as ineffective on this recusal issue.

Next the denial by the trial court of the suppression motion prompted Appellant to raise two issues on appeal. He takes the position that the trial court erred in not suppressing the knife found in Appellant’s apartment and the statement given by Appellant to the police. We disagree and find that the trial court properly denied the suppression motion.

The evidence presented at the suppression hearing was set forth by the trial court in the following manner:

“On October 13, 1981, in the late afternoon, Officers Peter Koblynk and Harold Guyton of the Philadelphia Police Department responded to a radio call reporting a stabbing at 19th and Sharswood Streets in Philadelphia. Upon their arrival on the scene they observed a body lying on the street in a pool of blood with gashes visible on the arm and chest. The body, that of a black male later identified as Willie Brown, was taken to St. Joseph’s Hospital and determined to be dead on arrival. Officer Guyton, upon overhearing a male on the scene say, “He shouldn’t have stabbed my homey”, followed that individual for approximately one-half of a block from the scene where he identified the defendant who was hanging out of the second floor window of a building as the person who had done the stabbing. From the street the officers observed that the defendant’s right hand was covered with blood. When the police entered his apartment defendant was arrested and a blood-stained knife found on a chair a foot away from where defendant was standing was seized. Upon his arrest at the Police Administration Building the defendant was given his Miranda warnings by Detective Lynch and waived his rights to remain silent and to have counsel present before giving a statement which he signed. At the time that the warnings were given to him by Detective Lynch the defendant appeared alert and not under the influence of alcohol or any intoxicants. The defendant declined an offer of treatment for what appeared to be a laceration of his right hand and a swelling of his right eye. No threats or promises were made to induce the defendant to give a statement.
The defendant took the stand [the next morning] and admitted that he had been given his warnings and had wished to make a statement. However, the defendant denied having understood that had he so desired he could have been furnished with an attorney free of charge prior to giving his statement.

(Opinion, 2/8/83, at 2, 3).

Appellant argues that the knife found by the police in his apartment should have been suppressed since it was seized in a warrantless search. In support of his contention Appellant’s counsel suggests that Appellant may either have been in the hallway of his own apartment or on the street being led to the police van at the time Officer Guyton picked up the knife. This assertion is remarkable in light of trial counsel’s admission that the Appellant had not been removed from the room where he was arrested when Officer Guyton found the knife (N.T. 4/7/82, at 13).

As stated in Commonwealth v. Henkel, 306 Pa.Super. 346, 350-351, 452 A.2d 759, 761-762 (1982):

The Fourth Amendment safeguard against unreasonable searches and seizures is aimed at deterring, inter alia, physical entry into the home. U.S. v. U.S. District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Securing a warrant under the discernment of a detached and impartial issuing authority prevents the dangers of unfettered intrusions into such sacrosanct environments. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). As a result, warrantless searches and seizures inside a home are presumptively unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). This presumption can be overcome where a lawful arrest necessitates the search and seizure of dangerous weapons within reach of the accused in the interest of insuring the safety of the arresting officers. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Commonwealth v. Bess, 476 Pa. 364, 382 A.2d 1212 (1978). Neither Chimel, supra, nor Bess, supra, permit searches of that portion of the premises beyond the accused’s immediate control.
The aforementioned principles of law have recently been expanded; therefore, we hold that arresting officers are permitted to conduct a brief search of the entire building, within which the accused is arrested, for the limited purpose of seeking other people who may threaten the officers’ well being, provided, of course, that such officers have reason to believe that other people are present.
In Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982), the arresting officers broke into defendant’s apartment with neither an arrest nor search warrant, detained and arrested the defendant in the living room and then seized a knife in plain view on a bedroom nightstand. The arresting officers were apprised by the victim, after she identified the defendant as her assailant, that she had been forcibly raped at knifepoint. Furthermore, reliable sources raised suspicion that the defendant’s brother inhabited the apartment too.
The Norris court concluded that the officers were permitted a cursory search of the other rooms, even after the defendant was detained, in order to insure their safety from the brother or another person whose presence was reasonably suspected, but not unequivocally known. Having lawfully entered the bedroom, the officers were in a position to rightfully seize whatever instruments of crime that were in plain view. Coolidge v. New Hampshire, supra; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

If police officers can properly seize a knife in plain view in an adjoining room incident to a lawful arrest of the accused on the suspicion that another person may be present in the apartment, then certainly they can seize a knife in plain view in the very room where the arrest of a person believed to be dangerous was made.

Appellant also seeks to have suppressed the statement given to the police shortly after his arrest. Before this court, he argues that the statement should have been suppressed because it was not shown to have been voluntary in light of his injuries and because he did not understand the waiver of his constitutional rights.

At the suppression hearing, however, Appellant’s trial counsel asserted only one argument for suppressing the statement. Appellant argued that he did not understand an attorney would have been provided free of charge if he could not afford an attorney (N.T. 4/7/84, at 8). None of the arguments advanced before this court was presented at the suppression hearing. These arguments which also were included in the pre-trial and post-trial motions, were, therefore, abandoned at the suppression hearing and cannot be revived here. See Commonwealth v. Urbina, 290 Pa.Super. 117, 118-119 n. 3, 434 A.2d 157, 158 n. 3 (1981).

Appellant also raises several alleged errors committed by the trial court arising from the non-jury trial. According to Appellant, the trial court should have found him not guilty by reason of self-defense.

18 Pa.C.S. § 505(a) addresses the use of force in self-protection.

“(a) Use of force justifiable for protection of the person. — The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.”

18 Pa.C.S. § 505(b)(2) specifically indicates when the use of deadly force is not justifiable. This subsection states in relevant part:

“(2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take____”

In evaluating the evidence to ascertain whether Appellant demonstrated compliance with 18 Pa.C.S. § 505, we must accept as true all evidence, together with all reasonable inferences therefrom, upon which the trier of facts could properly have based its verdict. Commonwealth v. Miller, 303 Pa.Super. 504, 450 A.2d 40 (1982). The findings by a judge sitting as the trier of fact are entitled to the same weight as a jury verdict, Commonwealth v. Coe, 226 Pa.Super. 594, 323 A.2d 213 (1974).

The facts found by the court at the non-jury trial were summarized in its February 8, 1983 opinion.

“On October 13, 1981 at approximately 3:00 p.m. the Defendant went to the B & J Lounge located at 1431 North 19th Street in Philadelphia. Willie Brown, the decedent, and Cornell Carpentier (“Boo”), who was wounded in the incident, were also present along with approximately 12 other persons, some of whom were employees, other patrons [sic]. The defendant, evidently under the influence of alcohol, began arguing with Willie Brown and pulled out his knife. Defendant was persuaded to leave the bar at that point, but returned within forty-five minutes. Upon his return, the defendant again became involved in an argument with Boo, threatening to cut him and others in the bar and pulling out his knife. Boo hit the defendant who then wielded his knife at Boo and Willie Brown. Boo was seen leaving the bar bleeding from the upper leg. Brown was observed, covered with blood, leaving the bar and crossing the street where he collapsed on the sidewalk. The defendant was then observed beating the decedent with a pool cue while he lay on the street. The Commonwealth produced three eyewitnesses who testified to the foregoing series of events, Betty Williams, Virginia Lonsome and Betty Cuthbert.
Dr. Halbert Fillinger testified that he performed a post-mortem examination on the body of Willie Brown on October 14, 1981 and found that the cause of death was a stab wound to the chest which pierced the wall of the heart.
The defense presented evidence to establish that the homicide of Willie Brown and the assault of Cornell Carpentier were done in self-defense. William Wolford who was present at the time of the incident testified that he observed a straight razor in the decedent’s hand during the fight. The defendant testified that when he returned to the bar after the first altercation decedent threatened to kill him, punched him in the nose and cut him on the hand with a razor while Boo, unarmed, proceeded to stomp and hit him. Defendant further testified that the wounds inflicted on Brown and Carpentier resulted from his attempts to protect himself as he was lying on the ground as a result of their aggressions. Finally, the defense introduced evidence that the decedent, Willie Brown, had been convicted of aggravated assault on March 10, 1981.” (Opinion, 2/8/83, at 4-5) (footnote omitted)

We believe the trial court correctly concluded that Appellant’s use of deadly force in this case was not justifiable on the grounds of self-defense.

The record clearly reflects that Appellant provoked the use of force against himself when he returned to the B & J Lounge later in the afternoon of October 13, 1981. Appellant began to argue with “Boo” Carpentier and call him obscene names. When Appellant reached into his pocket for the knife that earlier he had brandished in a threatening manner, “Boo” Carpentier responded by hitting Appellant.

Additionally, Appellant could have retreated from the confrontation. Instead of retreating when the decedent, Willie Brown, attempted to break up the fight, Appellant stabbed the decedent. Therefore, Appellant’s use of force was not justified under either 18 Pa.C.S. § 505(b)(2)(i) or (b)(2)(h).

Another argument made by Appellant is that the trial court erred in not reducing the degree of homicide from murder of the third degree to voluntary manslaughter since the Appellant’s self-defense argument “clearly has some merit on the record” Appellant’s brief at 17. This argument must fail, however, because the trial judge did not find merit in the self-defense argument. Moreover, the mere raising of a self-defense argument does not mean that one cannot be convicted of murder. In the instant case sufficient evidence of record exists to support the third-degree murder conviction.

Appellant further argues that the trial court abused its discretion by not allowing Appellant to cross-examine Betty Williams concerning the violent past of the decedent. We find no abuse of discretion, however, since the entire record including Appellant’s own testimony does not reflect that Appellant knew of the decedent’s alleged violence. Appellant must be aware of the alleged violent propensities of the victim, for testimony concerning the alleged violence to have probative value for self-defense purposes. Commonwealth v. Horne, 479 Pa. 496, 388 A.2d 1040 (1978). Without Appellant’s knowledge of the alleged violence, testimony concerning the alleged violence would have been irrelevant even if true.

Appellant contends the trial court committed additional error when it permitted the Commonwealth to cross-examine reluctant defense witnesses beyond the scope of direct examination. It is alleged that the prosecution sought to expand the direct testimony of defense witnesses, William Wolford and Willie Williams. Both Wolford and Williams gave direct eyewitness testimony about the fight between Appellant and the decedent. We find the trial court correctly ruled that the prosecution’s cross-examination was proper. Questions about what happened in the bar immediately before the fight are within the scope of testimony on direct of what occurred during the fight itself. The scope and manner of cross-examination are within the trial court’s discretion and the trial court will not be reversed unless there is an abuse of discretion or error of law. Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979); Commonwealth v. Hammond, 308 Pa.Super. 139, 454 A.2d 60 (1982).

Finally, Appellant contends that he did not receive effective assistance of counsel because of his counsel’s failure to locate two potential exculpatory defense witnesses. No indication is given concerning the nature of the proposed testimony of these exculpatory witnesses. A bare assertion by counsel that the testimony of certain witnesses would be exculpatory without a showing of how this testimony would have strengthened Appellant’s defense is not a sufficient basis for a finding by this court of ineffective assistance of counsel. Commonwealth v. Nelson, 311 Pa. Super. 1, 456 A.2d 1383 (1983).

Judgment of sentence affirmed.

BECK, J., concurs in the result.

      . 18 Pa.C.S. § 2502(c).

      . Id. § 2702.

      . Id. § 907(a).

      . Commonwealth v. Badger, 238 Pa.Super. 284, 287, 357 A.2d 547, 548 (1976), rev’d 482 Pa. 240, 393 A.2d 642 (1978).


author: SPAETH, President Judge:

text:
    477 A.2d 1372
    COMMONWEALTH of Pennsylvania v. Daniel Valdez BUNCH, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1983.
    Filed May 25, 1984.

      M. Douglas Eisler, Assistant Public Defender, West Chester, for appellant.
    Stuart Suss, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   SPAETH, President Judge:

This is an appeal from judgment of sentence. Appellant was found guilty of robbery, aggravated assault, two counts of firearms violations, criminal attempt theft, and two counts of criminal conspiracy, and was sentenced to a total of six to twelve years imprisonment. We affirm.

The trial court accurately recited the pertinent facts as follows:

On Monday, July 11, 1977, at approximately 3:50 p.m., two (2) black males entered the insurance office of Mr. Leebert Logan located at 1204 Paoli Pike, West Goshen Township, Chester County, Pennsylvania. (N.T. 278-279). While one of the pair remained at the door, the other entered the office and inquired about his uncle. (N.T. 281). After being informed that Logan did not know who his uncle was, the two (2) men left the office. (N.T. 281). At approximately 4:30 p.m., on the same day, two (2) black men entered the insurance office. (N.T. 282). As one man waited in the outer office, the second man entered the inner office, identified himself as Mr. Johnson (N.T. 294) and inquired about automobile insurance coverage. (N.T. 291-292). After discussing insurance matters for approximately ten minutes, the two individuals left the office. (N.T. 295).
The men immediately re-entered the office. (N.T. 295). Johnson (later identified as Henry Bailey) forced Logan’s secretary, Mrs. Ellen Pyle, to crawl underneath her desk. (N.T. 297, 350). The second man began hitting Mr. Logan over the head with a small revolver and yelling that he was going to kill him. (N.T. 295-297). Mr. Bailey kicked Logan and jumped on Logan as the second aggressor and Logan struggled over the gun. (N.T. 298).
Mr. Bailey ransacked Mr. Logan’s desk and took a bank pouch containing two (2) Five Thousand ($5,000) Dollar checks from his desk. (N.T. 297, 304).
As the two (2) actors fled the premises, they were observed by Mr. Wilfredo Colon, who was entering the outer office. (N.T. 503). Mr. Colon gave a description of the two men and further stated that they were driven from the scene by a third black male in a 1967 brown Ford Ltd., with trim top, two-door hard top bearing a white Pennsylvania temporary tag license number 0588162. (N.T. 503-504).
Mr. Logan was taken to the hospital and received emergency medical attention requiring fifty-one (51) stitches in his face and scalp and the removal of two shattered teeth. (N.T. 505, 305).
The police were called and at approximately 5:00 p.m. of the same day, a description of the individuals and the vehicle was circulated by a general alarm message put out on the police radio. (N.T. 49).
At approximately 8:00 p.m. of the same evening, Pennsylvania State Trooper Glenn J. Flick observed a vehicle travelling south on Pa. Route 100, near the intersection of Pa. Route 113, matching the broadcast description of the vehicle. (N.T. 51). The trooper followed that vehicle south on Pa. Route 100 at a distance of five (5) car lengths with no intervening vehicles coming between his and the suspect vehicle. (N.T. 57).
The trooper observed four (4) black males in the vehicle. (N.T. 51-52). From his vantage point, the trooper could see movement within the back seat of the car, as if they were either putting or removing something from between their legs. (N.T. 53). The Trooper also saw these people turning around to look at the police car. (N.T. 61-62, 96). When the vehicle stopped at an ARCO station, Trooper Flick ordered the occupants from the car, searched and handcuffed the suspects and held them for an additional period of ten (10) minutes until Detective Stephen E. Boland, Jr., of the West Goshen Township Police arrived at the scene, at which time all four suspects were turned over to the custody of Detective Boland. (N.T. 54-55). Upon investigation by Detective Boland, it was determined that Mr. A1 Gordon, one of the four suspects, was innocent of the Logan robbery so he was released. (N.T. 126-128). The remaining suspects, Mr. Henry Bailey, Mr. Danny Bunch [appellant], and Mr. John Sims were arrested and charged with robbery and other offenses in relation to the Logan robbery. (N.T. 129, 145).
Trial Court Op. at 1-3.

-1-

Appellant first argues that because several witnesses who testified at trial were unable to positively identify him as one of the participants in the robbery, there was insufficient evidence to support the convictions. However, Bailey, one of appellant’s alleged co-conspirators, testified at trial and identified appellant as a participant in the robbery. This identification was unshaken and by itself was sufficient to support the convictions. See Commonwealth v. Willis, 276 Pa.Super. 13, 419 A.2d 70 (1980) (accomplice’s identification testimony by itself sufficient to support conviction).

-2-

Appellant next argues that there was insufficient evidence to support the conviction for criminal attempt theft because there was no evidence that the actors in the crime ever exercised control over the bank pouch. After reviewing the briefs and the record, we find that the trial court’s opinion adequately disposes of this argument.

-3-

Appellant next argues that the trial court abused its discretion in denying his motion in limine to be permitted to testify without subjecting himself to impeachment by his prior criminal convictions. We find that the trial court adequately considered and weighed the factors set forth in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), and did not abuse its discretion in denying the motion. In addition to the reasons cited by the trial court in its opinion, we note that the Commonwealth’s case rested primarily on the testimony of Bailey. Therefore, if appellant had testified, the primary issue for the jury to resolve would have been one of credibility between Bailey and appellant. The defense had available and used various means in attempting to attack Bailey’s credibility. See, e.g., N.T. 646-53 (Bailey had maintained his innocence at preliminary hearing and line-up); N.T. 658-61 (Bailey agreed to testify pursuant to a plea bargain providing for 10 to 36 months imprisonment). In this situation it was particularly important that the Commonwealth be permitted to attack appellant’s credibility if he should testify, and the record does not reveal that it had other means available. Cf. Commonwealth v. Washington, 274 Pa.Super. 560, 418 A.2d 548 (1980) (no abuse of discretion in allowing impeachment; were two opposite versions of events and defendant’s tactic was to attack prosecution’s chief witness by accusations of criminal activity and fraudulent activity); Com monwealth v. Williams, 273 Pa.Super. 389, 417 A.2d 704 (1980) (abuse of discretion in allowing impeachment; although credibility was significant issue, crimes were 8 and 10 years old and were for same crime as crime being prosecuted; Commonwealth had testimony of other witnesses); Commonwealth v. Herman, 271 Pa.Super. 145, 412 A.2d 617 (1979) (no abuse of discretion in allowing impeachment; Commonwealth’s case was close and hinged on testimony of one witness whose testimony was contradicted; appellant had two alibi witnesses); Commonwealth v. Campbell, 244 Pa.Super. 505, 368 A.2d 1299 (1976) (no abuse of discretion in allowing impeachment; had defendant testified, sole issue would have been credibility between victim and defendant; defendant had witnesses to occurrences up until time of crime).

-4-

Appellant next argues that the trial court abused its discretion in denying his motion for severance after co-defendant Sims elected to testify against his attorney’s advice. After reviewing the briefs and the record, we find that the trial court’s opinion adequately disposes of this argument.

-5-

Appellant next argues that the trial court erred in refusing to strike testimony concerning Commonwealth Exhibits No. 31 and No. 32. Appellant’s argument appears to be that once the trial court ruled, rightly or wrongly, that these exhibits were themselves not admissible, it was error for the court to refuse to strike testimony regarding them. Appellant does not argue that the testimony was irrelevant or otherwise inadmissible, but only that once the exhibits were ruled inadmissible, the court was required, without more, to strike testimony regarding them. This argument is without merit. There was no error unless the testimony was for some reason inadmissible, and appellant does not offer any reason.

-6-

Appellant next argues that the trial court erred in denying his motion to suppress. In this regard appellant argues: (a) that one of the trial court’s findings of fact is unsupported by the record; (b) that the trial court erred in admitting hearsay testimony at the suppression hearing; and (c) that the trial court erred in finding that appellant’s arrest was based on probable cause.

-Or-

Appellant argues that the trial court’s finding that the radio transmission was based on information given the police by Pyle and Colon was wrong because the record shows that part of the information (age and weight) was supplied by Sharpless and not by Pyle or Colon. As noted by the trial court: “Trooper Flick made the vehicle stop based on that portion of the radio message pertaining to the vehicle description (N.T. 52, 74), provided in detail by Mr. Colon. (N.T. 49-50).” Trial Court Op. at 5. Therefore, even if appellant is correct, the error was harmless, because Trooper Flick remembered and acted, not on the basis of the information on age and weight supplied by Sharpless, but only on the basis of the information supplied by Colon.

-b-

Appellant also argues that the trial court erred in admitting the hearsay testimony of Detective Boland at the suppression hearing. Appellant relies on Commonwealth v. Farris, 251 Pa.Super. 277, 380 A.2d 486 (1977). The trial court correctly concluded that Farris is inapplicable because it involved the admission of hearsay at the trial itself, and not at the suppression hearing. Since a determination of probable cause may properly be based on hearsay, see e.g., Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978), the trial court did not err in admitting this testimony.

-c-

Appellant’s final argument is that the trial court erred in concluding that Trooper Flick had probable cause when he arrested appellant. The trial court made the following findings of fact:

Numeral One. At approximately 5:30 p.m. on July 11th, 1977 Trooper Glenn Flick of the Pennsylvania State Police, while on duty, in uniform and in a marked Pennsylvania State Police vehicle, received a radio transmission from the Pennsylvania State Police substation at Embreeville, giving the following information:
An armed robbery had been committed in West Goshen Township, Chester County, Pennsylvania. A handgun or handguns had been used. And that the suspects, consisting of three black males, were in a vehicle described as a Ford Sedan, black vinyl over brown, bearing Pennsylvania temporary registration tag number 0588162. A partial clothing description of the black males was also included.
Numeral Two. Approximately three hours later while on patrol at or near the intersection of Route 100 and 113 in Uwchlan Township, in Chester County, Pennsylvania, Trooper Flick observed, traveling south on Route 100, a vehicle of the same description as that described in the earlier radio transmittal, having the specified Pennsylvania white temporary tag number, and containing four black males.
The trooper began to follow the said vehicle as it proceeded south on Route 100, towards the intersection of that route and Route 30 at Exton, Pennsylvania. He followed said vehicle at an average distance of four car lengths throughout said section of Route 100; there being no intervening vehicles between the trooper’s vehicle and said Ford Sedan.
During the movement of the car between the intersection with 113 and the intersection of Route 30, Trooper Flick observed the passengers in the right rear and left rear moving their bodies forward. And he also observed, at one time or another, each occupant of the said vehicle, other than the driver, turning and facing the following police car and looking directly at it.
Numeral Three. When the said vehicle got to the Route 30 intersection at Exton, it pulled into the lane to make a left turn. The trooper pulled immediately behind it. The vehicle then completed the turn on the proper signal and pulled into an Arco service station, roughly speaking, at the southeast corner of said intersection.
The trooper pulled the police vehicle immediately behind the Ford, drew his gun, and by use of the loud speaker system on the police vehicle, ordered the occupants of the Ford vehicle to dismount and lie upon the ground. This they did without further order or without any show of resistance.
Within ten minutes other police and police vehicles were on the scene. And the four occupants of the Ford vehicle were handcuffed and subsequently taken to the West Goshen Township Police Department, where one of the occupants, a man who gave the name Gordon, was released.
Numeral Four. The radio transmission which was heard by Trooper Flick, and upon which he acted, was, in fact, supported by probable cause and was, in fact, based upon information given the police by and through a Miss Ellen Pyle — Mrs. Ellen Pyle, the secretary at the office which was the scene of the alleged robbery, who viewed the suspects; and also by a man named Colon, who came upon the scene as the suspects were fleeing the office immediately after the robbery.
This information by Mrs. Pyle and Mr. Colon was in the hands of the County Police Radio room within fifteen minutes after the alleged incident and, in fact, formed the factual basis for the radio transmission which was then retransmitted from the Chester County Police Radio through the Pennsylvania State Police transmission site at Embreeville.
N.T. 557-561.

On the basis of these findings the trial court concluded that appellant was under arrest when Trooper Flick forced him to get out of the car at gunpoint, to lie on the ground, and to submit to handcuffing and a search. We agree with this conclusion. See Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311, cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963) (“An arrest may be accomplished by ‘any act that indicates an intention to take [a person] into custody and that subjects him to the actual control and will of the person making the arrest.’ ” (citation omitted)). See also Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976) (arrest occurred at least by time defendant was taken to police station); Commonwealth v. Roscioli, 240 Pa.Super. 135, 361 A.2d 834 (1976) (arrest occurred when defendant handcuffed); Commonwealth v. Klock, 230 Pa.Super. 563, 327 A.2d 375 (1974) (arrest occurred when defendant placed in troopers’ patrol car). Cf. Commonwealth v. Ferraro, 237 Pa.Super. 268, 352 A.2d 548 (1975) (fact that officer withdrew service revolver while directing defendant to get out of car did not alone turn investigatory stop into arrest).

The trial court further concluded that Trooper Flick had probable cause to arrest appellant when he ordered him to get out of the car. We also agree with this conclusion, but our analysis is somewhat different from the trial court’s.

In its analysis, the trial court assigned no significance to the fact that Trooper Flick saw four men in the car, while the report he was acting on had referred to only three men. If Trooper Flick had observed only three black men in the car as he followed it, we should conclude that he had probable cause to arrest the occupants, and the trial court’s analysis would be sufficient. Trooper Flick knew that three black men had committed armed robbery with a gun. He had a detailed description of the car, and he saw the car in the general area in which the robbery had occurred, approximately three and one-half hours after the robbery. As Trooper Flick followed the car he observed the occupants in the back seat of the car leaning forward and moving their shoulders as though they were removing or putting something between their legs. On these facts, Trooper Flick could reasonably have concluded that the occupants of the car were the robbery suspects. See Commonwealth v. Rutigliano, 310 Pa.Super. 364, 456 A.2d 654 (1983) (arresting officer had probable cause to arrest two male occupants of car: knew burglary had been committed; had neighbor’s description of vehicle and his observation that car had two male occupants; two hours had elapsed since car was last seen); Commonwealth v. Jones, 233 Pa.Super. 461, 335 A.2d 789 (1975) (arresting officer had probable cause to arrest two black male occupants of car; knew crime had taken place; had description of car; knew two black males had been involved in crime; car was stopped one hour after radio broadcast and six blocks from scene of crime).

The difficulty, however, is that Trooper Flick observed not three black men in the car, but four. Nevertheless, we think that on the facts of this case, it was reasonable for Trooper Flick to conclude, as he did, that some three of the four occupants of the car — he did not know which three— were the robbery suspects, and that he therefore had probable cause to arrest all four, including appellant. In so holding, we recognize that the Commonwealth does not argue, and Trooper Flick did not claim, that there was any basis for believing that all four of the occupants of the car were robbery suspects.

Our analysis starts from the premise that in the circumstances of this case Trooper Flick had probable cause to believe that three of the four men in the car were the robbery suspects. As we have just noted, there is no question that the car was the same as that used in the robbery; that it was stopped in the general area in which the robbery had occurred, and approximately three and one-half hours after the robbery; and that the occupants in the rear seat of the car were observed acting suspiciously. While the law requires that probable cause have a fairly narrow focus, thereby precluding, for example, dragnet operations, we do not believe that the focus must in all situations narrow down to a single suspect — here, to a particular three of the four men to the exclusion of the remaining man.

The Supreme Court was faced with a similar situation in Commonwealth v. Sangricco, 475 Pa. 179, 379 A.2d 1342 (1977), in which the appellant argued that the warrant in question was issued without probable cause. The appellant argued that because the warrant was issued for both himself and Ms. Girts, the uncertainty as to who shot the victim should have required the magistrate to refuse to issue the warrant. The Court rejected this argument stating: “[W]e believe that the police acted reasonably in suspecting that appellant or Ms. Girts may have been involved. We further believe that the police had knowledge of sufficient facts and circumstances to justify obtaining of the search warrant to conduct a neutron activation analysis test on both appellant and Ms. Girts.” 475 Pa. at 184, 379 A.2d at 1344 (footnote omitted; emphasis added). Cf. Commonwealth v. Harper, 248 Pa.Super. 344, 375 A.2d 129 (1977) (officer had probable cause to believe that three perpetrators were on bus, and thus was justified in transporting to hospital for identification by victim six black men who were on bus and fitted description of attackers; heinous nature of the crime and small number of suspects made conduct of police reasonable; fact that innocent men were being detained factor necessitating prompt identification procedure). In discussing the concept of probable cause in Sangricco the Court quoted from Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949), in which the United States Supreme Court said:

These long-prevailing standards [governing probable cause determinations] seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.
One state court has analyzed this problem as follows: Probable cause may justify the arrest of more than one person. If, for example, a policeman sees A and B bending over a dead man and each accuses the other of killing the victim, there is probable cause for the arrest of either or both and the arrest of A does not preclude the arrest of B. Similarly, if A is found one block north of a recently robbed bank and matches the description of the robber, the arrest of A does not preclude the subsequent arrest of B who also matches the description and is found one block south of the bank.
In either case, it would be reasonable for the police to arrest both A and B on probable cause even though they believe that only one of them committed the crime. The purpose of the arrest, however, is not the traditional and statutory purpose of an arrest: to charge the arrestee with crime. Rather, it is to initiate a short-term process of sorting out, usually on the scene, to determine which person should be charged with crime, ie., arrested in the full sense of the word. Thus the initial ‘arrest’ is really in the nature of a stop or detention rather than a true arrest.
Although multiple arrests may be reasonable in certain circumstances, the law does not allow dragnet arrests of many suspects for investigation of each. Factors to separate the reasonable from the unreasonable have been well stated elsewhere:
“Other factors may be important in determining the validity of multiple arrests in a given situation. The degree of certainty that the actual offender is within the group would seem relevant, along with the size of the group. The seriousness of the offense may affect the result. Also of importance is the need for immediate action, as where two persons of unknown identity are running from the scene of a crime. The available means of postarrest selection may also be a deciding factor. For example, the arrest of three suspects to enable a witness to view them in a lineup may be less objectionable than the arrest of the same number for interrogation. * * * ” (Footnotes omitted) W. La-Fave, Arrest, 262 (1975).

State v. Jordan, 36 Or.App. at 49-52, 583 P.2d at 1163-64 (footnotes omitted).

Similarly, a commentator has said: “[I]t is precisely because arrest serves an investigative function that '[t]he quantum of evidence necessary to sustain an arrest is not, in all circumstances, the same quantum necessary to make out probable cause for charging a person with the crime.’ ” W. LaFave, 1 Search and Seizure § 3.2 at 481 (1978) (footnote and citation omitted). And the commentary to the Model Code of Pre-Arraignment Procedure 295 (Proposed Official Draft, 1975), quotes with approval Restatement (Second) Torts § 119, Comment j, Illustration 2, which is:

A sees B and C bending over a dead man D. B and C each accuse the other of murdering D. A is not sure that either B or C did the killing, but he has a reasonable suspicion that either B or C killed D. A is privileged to arrest either or both.

The Code, at 295 n. 14, does not find this position inconsistent with the United States Supreme Court’s decision in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), because:

In that case officers lawfully present in a hotel lobby detected the odor of burning opium coming from a room. One of the officers knocked and announced his title. Defendant, the sole occupant, opened the door and “acquiescently” admitted the officers, who thereupon arrested her. It was held that since “the Government ... concedes that the arresting officer did not have probable cause to arrest until he had entered her room and found her to be the sole occupant,” and since there were no valid grounds to search the room "apart from the arrest, the arrest was not legal. Id. at 16 [68 S.Ct. at 370]. Since when she first came to the door the defendant may have been one of an indeterminate number of persons within — rather than the sole occupant or one of a very few persons — the Government’s concession was appropriate.

Here, the time of the robbery and the manner of its execution, the identity of the car, the area where the car was observed, and the suspicious activity of the occupants in the rear of the car, all focused probable cause onto three of the four occupants of the car as the robbery suspects. While it was likely, as the trooper recognized and in his testimony acknowledged, that one innocent man would be detained, in the circumstances that detention, amounting to arrest, was reasonable.

With regard to this conclusion we note that although an initial detention amounting to arrest may be reasonable, continued detention may be unreasonable and therefore illegal. For example, after the arrest the police may uncover or receive additional information showing that they no longer have probable cause to detain the suspect. See, e.g., People v. Quarles, 88 Ill.App.3d 340, 43 Ill.Dec. 497, 410 N.E.2d 497 (1980); Castellano v. State, 585 P.2d 361 (Okla.Crim.App.1978). Here, the police did receive additional information. However, it confirmed the reasonableness of their belief that appellant had been one of the robbers and, further, undid the probable cause as to the fourth man. See, N.T. 120 (Detective Boland testified that upon arriving at the gas station, “One man struck me as being a positive on my message, my description. This was the man in the blue shirt, who turned out to be Danny Bunch. He looked solid.”); N.T. 126 (Detective Boland testified that Bailey, Sims and appellant fit Colon’s description of the robbers), N.T. 127-29 (police verified Gordon’s alibi and released him).

We also note that there will of course be cases in which the facts known to the police will be less narrowly focused than in this case and will therefore give rise only to a reasonable suspicion, justifying temporary detention but not detention amounting to an arrest. See, e.g., Commonwealth v. Harper, supra. And in other cases the facts known to the police will be so unfocused as to give rise not even to a reasonable suspicion, so that neither a detention nor an arrest will be justified. See, e.g., Commonwealth v. Fassett, 496 Pa. 529, 437 A.2d 1166 (1981) (sole factors motivating stop were light color of vehicle and race of defendant and his companion; arresting officer noted nothing suspicious about vehicle, manner of operation, or its occupants; radio alert stated three or four black males were being sought but appellant’s automobile contained two persons; stop more than nine hours after robbery; location of robbery more than eight miles from stop). In every case, however, the determination of probable cause must turn on the particular facts, and in this case we believe that the facts known to Trooper Flick had a sufficiently narrow focus to give rise to probable cause and to justify the arrest of the four occupants of the car.

The judgment of sentence is affirmed.

      . Although the radio broadcast that Trooper Flick heard contained descriptions of the robbery suspects, Trooper Flick testified that he did not remember these descriptions and that he made the arrest based solely on the description of the car, believing that three of the four occupants were the robbery suspects and without making any distinctions among the four. Since Trooper Flick did not remember the individual descriptions broadcast, and did not make an arrest on the basis of them, we cannot rely on the descriptions in determining whether Trooper Flick had probable cause to arrest appellant. Cf. Commonwealth v. Gambit, 274 Pa.Super. 571, 418 A.2d 554 (1980), aff’d, 501 Pa. 453, 462 A.2d 211 (1983) (officers may rely on radio broadcasts in executing a valid arrest, but knowledge of dispatcher and other officers may not be imputed to officer who did not hear broadcast).

      . See also Filmon v. State, 336 So.2d 586 (Fla.1976), cert. denied, app. dismissed, 430 U.S. 980, 97 S.Ct. 1675, 52 L.Ed.2d 375 (1977) (court rejects argument that conduct of officer at hospital constituted dragnet when all five living victims of two-car accident were given blood alcohol tests; officer had reasonable cause to believe that one or more of limited group of five had been driving under influence of alcohol); State v. Jordan, 36 Or.App. 45, 583 P.2d 1161 (1978), aff'd, 288 Or. 391, 605 P.2d 646, cert. denied, 449 U.S. 846, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980) (police went to house they had probable cause to believe fugitive was living in; defendant answered door and identified herself using alias used by fugitive; police arrested defendant, intending to establish her identity through fingerprints at station; after observing mug shot of fugitive and still unsure he had right person, officer ordered police to go back to house to search for fugitive; officers found real fugitive in attic; search held valid and evidence discovered in search of house admissible). But see United States v. Fisher, 702 F.2d 372, 378 (2d Cir.1983) ("Second, we note that at the hearing Ransford repeatedly mentioned that the Black males on the porch on Saint Louis numbered three or four. If there were four, at least one of them was not one of the robbers. In those circumstances, even if it were known that all three robbers were on the porch, and if Fisher was one of four people on the porch, there would have been no legitimate inference that Fisher was one of the robbers.”); People v. Williams, 79 A.D.2d 929, 435 N.Y.S.2d 1, app. dismissed, 53 N.Y.2d 866, 440 N.Y.S.2d 188, 422 N.E.2d 833 (1981) (officer had description of man, entered club and held four or five men who fit description to varying degrees; search unlawful because no particularized probable cause as to defendant himself).