author: MONTGOMERY, Judge: HOFFMAN, Judge,

text:
    453 A.2d 1048
    Michael N. JOHNSON, Appellant, v. GLENN SAND AND GRAVEL, and Walter W. Simpson.
    Superior Court of Pennsylvania.
    Argued May 20, 1981.
    Filed Dec. 17, 1982.
    Petition for Allowance of Appeal Denied May 12, 1983.

      Kent S. Pope, Clarion, for appellant.
    John R. Gavin, Oil City and Dennis St. J. Mulvihill, Pittsburgh, for appellees.
    Before MONTGOMERY, HOFFMAN and VAN der VOORT, JJ.
   MONTGOMERY, Judge:

On July 4, 1978, plaintiff-appellant was severely injured in a collision between his motorcycle and a pickup truck owned by defendant-appellee Glenn Sand and Gravel, and operated by defendant-appellee Walter Simpson, an employee of Glenn Sand and Gravel. Appellant filed a complaint in trespass against both Simpson and Glenn Sand and Gravel. The complaint alleged negligence on the part of Simpson in the operation of the truck. It also alleged that Simpson was the “agent, servant and employee” of Glenn Sand and Gravel which was, therefore, liable for the injuries sustained by appellant. The answer filed by Glenn Sand and Gravel denied that Simpson was their “agent, servant and employee.” Simpson failed to file an answer and a default judgment was entered against him. Simpson thereafter moved to open the default judgment, which motion was granted by the lower court. The pleadings completed and the depositions of appellant Johnson and appellee Simpson taken, Glenn Sand and Gravel filed a motion for summary judgment supported by an affidavit. Following the granting of that motion, appellant Johnson filed this appeal.

Appellant alleges that the facts gave rise to a presumption of an agency relationship, which issue should have been submitted to a jury. He, therefore, claims that the order granting summary judgment was in error. In order to determine the validity of appellant’s claim, we will list the uncontroverted facts relating to the issue of agency as they were at the time the motion for summary judgment was granted.

The deposition taken of appellee Walter Simpson evinced the following:

(1) The truck involved in the accident was owned by Glenn Sand and Gravel;
(2) Simpson was and is an employee of Glenn Sand and Gravel;
(3) Simpson drove the truck on business for Glenn Sand and Gravel on a daily basis; and,
(4) Simpson was not working on the day of the accident as it was the July 4th holiday.

It is well settled that in our Commonwealth a master is liable for the torts of his servant if the latter’s tortious conduct was within the scope of his employment. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd Cir., 1979); Mauk v. Wright, 367 F.Supp. 961 (M.D.Pa., 1973); Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970); Ferrell v. Martin, 276 Pa.Super. 175, 419 A.2d 152 (1980). In order for the servant’s tortious conduct to be found within the scope of employment (1) the injurious action must have been committed within the time and space of the employment; and, (2) the servant’s activity must in some way further the employer’s business. Shuman Estate v. Weber, 276 Pa.Super. 209, 419 A.2d 169 (1980); Mauk v. Wright, supra.

The undisputed facts show that the injurious activity was outside of the time and space of Simpson’s employment. He admitted that he was not working for Glenn Sand and Gravel on that day. Simpson also admitted that he used the truck to fulfill a personal request of his father and did not have actual permission to so use the vehicle. We, therefore, cannot find Simpson’s activity to be within the time and space of his employment.

Plaintiff alleges that a rebuttable presumption of an agency relationship arises as a result of the uncontroverted fact that the pick-up truck in question was a commercial vehicle owned by Glenn Sand and Gravel, and used generally by the company in the course of its business. Plaintiff, however, overlooks that body of law which states that liability is only imposed on the employer when an instrumentality, the pick-up truck herein, is used for the purpose of advancing the employer’s business interest. Shuman Estate v. Weber, supra; Ferrell v. Martin, supra. We find no evidence in the instant case that the pick-up truck was used by Simpson for any such purpose. If it were established in the court below that the truck was being used for the furtherance of Glenn Sand and Gravel’s business in addition to some personal purpose of Simpson, we might be constrained to investigate further. See, Mauk v. Wright, supra (dual motivation does not necessarily negate an action within the scope of employment). That not being the case herein, however, we find that mere ownership of the vehicle involved is not sufficient to establish the rebuttable presumption of an agency relationship. See, Shuman Estate v. Weber, supra.

Under Pa.R.C.P., Rule 1035(b), a motion for summary judgment shall be granted “if ... there is no genuine issue as to any material fact and [if] the moving party is entitled to a judgment as a matter of law.” See also, Puleo v. Broad Street Hospital, 267 Pa.Super. 581, 407 A.2d 394 (1979). As noted earlier, there was no dispute as to any facts pertinent to the establishment of an agency relationship between Glenn Sand and Gravel, and Simpson. Furthermore, the test for whether an agency issue should reach the jury turns upon whether any reasonable inference from the facts supports the finding that the employee was acting in furtherance of his employer’s business. Pillo v. Mohan, 410 Pa. 417, 189 A.2d 850 (1963). As we have already determined that no such inference could be made from the facts herein, the lower court properly granted the motion for summary judgment.

Appellant also claims that the lower court’s order is excessively broad in that it exceeds the scope of relief requested and makes determinations of fact not yet in issue. The order in question is clear in that it grants Glenn Sand and Gravel’s motion for summary judgment. The briefs in support and in opposition to that motion confined the issue to one of agency. The lower court’s ruling was, therefore, based on his findings as to that limited issue. Any language in the lower court’s opinion which exceeds the parameters of the issue of agency must be viewed as dicta. To formally hold so, however, is unnecessary in light of our disposition of this case on the sole issue which was before the lower court.

Order affirmed.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting:

Summary judgment cannot be granted against a plaintiff simply upon oral statements made in a deposition by one of the defendants. I therefore dissent. It is well-settled that “[hjowever clear and undisputable may be the proof, when it depends on oral testimony it is nevertheless the province of the jury to decide.” Nanty-Glo v. American Surety Co., 309 Pa. 236, 238, 163 A. 523, 524 (1932). The limited exception to this rule that when a party’s own “admissions le[ave] no issue for the jury to resolve, ... [but] rather have the effect of an unintentional but still unconditional surrender,” Rivoli Theatre Co. v. Allison, 396 Pa. 343, 346, 152 A.2d 449, 451 (1959), does not apply here. Appellee Simpson’s statements in his deposition about his relation to his employer, co-appellee Glenn Sand, though characterized by the majority as “admissions,” are not binding upon the adverse party, appellant Johnson. The credibility of these statements and their accuracy in describing the accident’s circumstances are questions of fact to be resolved by the factfinder. Only then may the court, or the jury under proper instructions, apply the law of agency. “When passing on a motion for summary judgment, the trial court is simply to determine whether there is a triable issue of fact; it is not to decide any issue of fact.” Kent v. Miller, 222 Pa.Superior Ct. 390, 393, 294 A.2d 821, 823 (1972). Accordingly, because summary judgment cannot be granted on this record, I would reverse and remand for further proceedings.

      . The dissent states that appellant is not advancing a theory which he failed to take before the trial court. (See Dissenting Opinion, footnote*) A review of the record reveals that appellant, in opposition to summary judgment, argued that a rebuttable presumption of agency arose in his favor due to certain statements made by appellee Simpson in his deposition. We find this distinguishable from the dissent’s interpretation of the argument in the court below as a contention that a triable issue of fact precluded summary judgment. The former is based upon a legal presumption while the latter goes directly to the factual merits. The undisputed testimony issue is a theory which was not clearly presented to the lower court, but, at most, hidden within appellant’s rebuttable presumption theory which brings this matter squarely within the ambit of Kimmel v. Somerset County Commissioners, 460 Pa. 381, 333 A.2d 777 (1975). The case of Gojkovic v. Wageley, 278 Pa. 488, 123 A. 466 (1924) is, therefore, inapplicable.

       The rule that an appellate court "will not reverse a judgment or decree on a theory that was not presented to the trial court," Kimmel v. Somerset County Commissioners, 460 Pa. 381, 384-385, 333 A.2d 777, 779 (1975), is inapplicable here. In Kimmel the court accurately noted that appellants were presenting on appeal “entirely different theories than they had presented to the trial court.” Id. Here, appellant contended consistently, and correctly, that a triable issue of fact precludes summary judgment. He specifically identified the weight and credibility of Simpson's testimony as such an issue both to the lower court, see Lower Court Op. at 3, and to our Court, see Appellant’s Brief at 4, 11-12. That he failed to cite Nanty-Glo v. American Surety Co., supra, or other authority for this proposition, does not undermine its correctness or deprive him of the right to have a factfinder resolve the issue he has identified.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    453 A.2d 1051
    COMMONWEALTH of Pennsylvania v. Roderick KINNON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1982.
    Filed Dec. 17, 1982.

      ■ John Packel, Chief, Appeals, Asst. Public Defender, Philadelphia, for appellant.
    Jane Culter Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   PER CURIAM:

Appellant Roderick Kinnon was convicted of burglary (No. 2338) and criminal trespass (No. 2339) following a non-jury trial before the Honorable Thomas White. Post-verdict motions were denied and appellant was sentenced to concurrent terms of one to three years imprisonment on each conviction. Appellant then filed this direct appeal. For the reasons that follow, we affirm the judgment of sentence on the burglary conviction and vacate the judgment of sentence on the criminal trespass conviction.

Appellant first contends that the lower court erred in refusing to suppress both identification and physical evidence on the grounds that they were obtained as a result of an illegal arrest. Alternatively, appellant claims that the out-of-court identification was so unduly suggestive that it and any subsequent in-court identification should be suppressed.

In determining whether probable cause for an arrest exists, we must not focus on isolated factors but must, rather, look at the totality of the circumstances surrounding the arrest. Commonwealth v. Fiore, 281 Pa.Super. 1, 421 A.2d 1116 (1980). In addition, the circumstances of the arrest must be viewed through the eyes of the trained police officer. Commonwealth v. Tolbert, 235 Pa.Super. 227, 341 A.2d 198 (1975). The evidence at the suppression hearing revealed that Officers'Stankiewicz and Kellenbenz were on patrol in their unmarked car when they received a radio call on a burglary in progress. Upon arriving at the location of the burglary, Officer Stankiewicz left the car and observed appellant on the first floor roof. Upon seeing the officer, appellant ran over a series of small roofs and Officer Stankiewicz pursued him. Appellant then leaped onto a tree limb and eluded Officer Stankiewicz. Officer Kellenbenz then picked up the chase in the police car and apprehended appellant. We believe these facts sufficiently show that the officers had probable cause to arrest appellant.

Appellant, however, further asserts that the Commonwealth could not show probable cause because Officer Kellenbenz did not testify. We disagree. The officers were together except for a very short time and the facts and circumstances testified to by Officer Stankiewicz do indeed show probable cause. We see no reason why the lack of Officer Kellenbenz’s testimony should invalidate an otherwise valid arrest.

Alternatively, appellant argues that the on-the-scene identification by Officer Stankiewicz was so suggestive as to warrant suppression. The identification occurred just moments after Officer Kellenbenz apprehended appellant. Appellant argues that the identification procedure was suggestive because he was in police custody at the time. This argument is clearly meritless. See, e.g., Commonwealth v. Santiago, 229 Pa.Super. 74, 323 A.2d 826 (1974).

Finally, appellant asserts that it was error for the lower court to impose sentence on both the burglary and the criminal trespass convictions. Since both convictions arose from a single act, we agree that appellant could be sentenced on only one of the convictions. Commonwealth v. Cadogan, 297 Pa.Super. 405, 443 A.2d 1185 (1982). Because the trial court imposed concurrent sentences, however, we need not remand for resentencing but will simply vacate the judgment of sentence imposed on the criminal trespass conviction. Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980).

Judgment of sentence at No. 2338 is affirmed; judgment of sentence at No. 2339 is vacated. We relinquish jurisdiction.

      . Appellant also states in his brief that he was handcuffed when Officer Stankiewicz identified him. This fact is not substantiated by the record; however, even if it were true, that fact alone would not warrant suppressing the identification, especially when the identifying witness is the police officer who originally pursued the suspect. See, Commonwealth v. Perdie, 249 Pa.Super. 406, 378 A.2d 359 (1977).


text:
    453 A.2d 1053
    COMMONWEALTH of Pennsylvania v. Marvin TURNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1981.
    Filed Dec. 17, 1982.
    Michael A. Tier, Philadelphia, for appellant.

      Bruce W. Vosburgh, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   PER CURIAM:

In a hearing before a district justice, defendant was convicted of violating a weight restriction on use of a bridge. 75 Pa.C.S. § 4902(a). The district justice fined defendant $6,675 under statutory formula. 75 Pa.C.S. § 4902(e). Defendant took an appeal for trial de novo in common pleas court. 42 Pa.C.S. § 932. After the trial de novo, the court below on February 18, 1981 entered an order which found defendant guilty and reimposed the same sentence which had been given by the magistrate. Defendant filed this timely appeal from that judgment of sentence. Because the court below gave defendant no opportunity to file post-verdict motions between the finding of guilt and imposition of sentence, we must vacate the judgment of sentence and remand for filing of post-verdict motions. See, e.g., Commonwealth v. Aldrete, 303 Pa.Super.Ct. 398, 449 A.2d 747 (1982).

Judgment of Sentence vacated, and case remanded for filing of post-verdict motions. Jurisdiction is not retained.


text:
    453 A.2d 1054
    Michael EPSTEIN, Appellant, v. STATE FARM INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed Dec. 23, 1982.

      Allen L. Feingold, Philadelphia, for appellant.
    Alan Dion, Philadelphia, for appellee.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   PER CURIAM:

This appeal is from an order sustaining preliminary objections and dismissing the second count of a two count complaint. The first count was in assumpsit alleging a cause of action for overdue benefits under a no-fault motor vehicle insurance policy. The second count was in trespass alleging that appellee’s failure to pay was willful, intentional, reckless and wanton, designed to harass and frustrate appellant.

Our disposition of this case is controlled by Evans v. Government Employees Insurance Company, 291 Pa.Superior Ct. 342, 435 A.2d 1258 (1981):

We have repeatedly held that an order dismissing some but not all of the counts in a multi-count complaint is interlocutory and not appealable because appellant is not out of court. Mitchell v. Center City Cadillac, 287 Pa.Super. 350, 430 A.2d 321 (1981); Bagshaw v. Vickers, 286 Pa.Super. 246, 428 A.2d 664 (1981); Giannini v. Foy, 279 Pa.Super. 553, 421 A.2d 338 (1980). We have so held at least twice with regard to appeals from lower court orders sustaining preliminary objections to trespass counts in complaints in exactly the same form as the one here—an assumpsit count claiming no-fault benefits and trespass counts alleging that the non-payment was tortious. Brandon v. State Farm Insurance Company, 284 Pa.Super. 399, 425 A.2d 1163 (1981); Gurnick v. Government Employees Insurance Company, 278 Pa. Super. 437, 420 A.2d 620 (1980). Therefore, this appeal as well must be quashed as being an appeal from an interlocutory order not permitted by statute, general rule, or by permission following certification by the lower court. 42 Pa.C.S.A. §§ 702, 742; Pa.R.A.P. 301-312.

Id., 291 Pa.Superior Ct. at 343, 435 A.2d at 1258-1259.

We note that appellee did not raise the issue of non-appealability, but we are compelled to address the issue sua sponte and quash the appeal. Napet, Inc. v. John Benkart & Sons Company, 288 Pa.Superior Ct. 187, 431 A.2d 351 (1981).

Appeal quashed.

      . For the convenience of the parties we refer them to the Pennsylvania Supreme Court decisions in D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Co., 494 Pa. 501, 431 A.2d 966 (1981), and Smith v. Harleysville Insurance Company, 494 Pa. 515, 431 A.2d 974 (1981) on which authority we would affirm the lower court's order were this issue before us on the merits.


text:
    453 A.2d 1055
    Martin QUINTILLIANO v. Robert L. O’NEILL and Ann Marie O’Neill, h/w, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1981.
    Filed Dec. 23, 1982.
    Petition for Allowance of Appeal Denied March 16, 1983.

      David B. Glancey, Philadelphia, for appellants.
    Ralph M. Russo, Upper Darby, for appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   PER CURIAM:

We here review an order which denied a petition by appellant to open a default judgment entered pursuant to Pennsylvania Rule of Civil Procedure No. 4019. We reverse.

The record reflects that the Common Pleas Court, on September 15, 1980, entered a rule upon appellants, the defendants in this proceeding, to show cause why the Motion for Sanctions filed by appellee, the plaintiff, should not be granted; the rule was returnable October 24, 1980, and counsel for plaintiff filed a certificate that he had on September 24, 1980, provided notice thereof to counsel for the defendants. Counsel for plaintiff presented and the court executed on October 30, 1980, an order directing defendants to file answers to the interrogatories of plaintiff within ten days or suffer a default judgment. That ten day period expired on Saturday, November 8, 1980, and counsel for the plaintiff proceeded on Monday, November 10, 1980, to file with the prothonotary a praecipe for default judgment upon which appears a handwritten notation to the prothonotary to assess damages in the amount of $5,575.00 plus interest. The record does not, however, contain the following documents:

An affidavit of service of the order of October 30, 1980 of Judge Mason Avrigian directing the defendants to file answers to the interrogatories within ten days or suffer a default judgment. (While counsel for the plaintiff filed an “Affidavit” of service with the prothonotary on November 5, 1980, it is a certification and does not relate to the order of court of October 30, 1980, threatening default judgment; rather, counsel merely refiled the certificate relating to the rule to show cause that was forwarded to the defendant on September 24, 1980.)
The actual entry of a default judgment for the plaintiff. (While the praecipe directs the prothonotary to enter a default judgment and while the docket reflects that the prothonotary did so on November 10, 1980, the record does not reflect any such formal entry of judgment by the prothonotary.)

Counsel for the defendant filed with the court a petition to open default judgment on November 25, 1980 which was subsequently denied. We are compelled to reverse.

Firstly, the entry of a default judgment by the prothonotary under Pa.R.C.P. No. 4019 is not permissible so that the judgment would' appear to be void ab initio. Newsome v. Braswell, 267 Pa.Super. 83, 406 A.2d 347 (1979).

Secondly, the chancellor, under these facts, should have opened the judgment. It is clearly established that equitable principles control the disposition of an application to open a default judgment and that relief may be granted when the Chancellor determines: (1) the petition to open has been filed in prompt fashion; (2) the petitioner has a meritorious defense; and (3) the petitioner provides a reasonable explanation for the default. Commonwealth, Dept. of Transp. v. Nemeth, 497 Pa. 580, 442 A.2d 689 (1982); Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971); Quaker Transit Company, Inc. v. Jack W. Blumenfeld & Co., 277 Pa.Super. 393, 419 A.2d 1202 (1980). The initial two requirements are not at issue so that, therefore, the decision of the learned Judge Samuel A. Salus, II was based upon a determination that the defendants have failed to provide a reasonable explanation for their default.

Counsel for defendants asserts that he failed to file such answers by reason of an oral understanding with counsel for the plaintiff reached during July, 1980, when earlier interrogatories of plaintiff directed to defendants were the subject of sanction proceedings. Counsel for the defendants asserts that counsel for the plaintiff and he then orally agreed that the interrogatories did not have to be answered so long as counsel for the defendants did not undertake discovery of the plaintiff. While that understanding was never confirmed by any correspondence between counsel for the parties, counsel for the defendants asserts in his brief—and counsel for the plaintiff does not deny—that he, despite the motion for sanctions sought by counsel for the plaintiff in September 1980, inferred he need not respond to the interrogatories in view of their understanding, in view of the fact that counsel for the plaintiff had initiated the required procedure to have the matter listed for trial by arbitration and in view of the fact that the arbitration trial was actually scheduled for November 12, 1980.

As the equities are balanced, it is difficult to comprehend—nor does the plaintiff explain or even address—that counsel for the plaintiff, on Friday, November 7, 1980, signed a letter forwarding to counsel for defendants three exhibits to be submitted by the plaintiff at the trial five days later on November 12, 1980, and at the same time was drafting a praecipe for a default judgment for presentation on the morning of Monday, November 10, 1980.

We have earlier noted that the record does not reflect that counsel for the plaintiff attempted service upon counsel for the defendants of the order of October 30, 1980, directing that answers be filed within ten days under pain of default judgment and here note that the letter of November 7, 1980, from counsel for the plaintiff to counsel for the defendants forwarding exhibits to be submitted at the trial on November 12 did not (1) enclose a copy of the order of October 30; or (2) refer to order of October 30; or (3) advise of the intent of counsel for the plaintiff to file a praecipe for default on the following Monday, November 10, 1980.

The crucial time for the defendants to have filed the answers would be the period subsequent to the entry of the order of October 30, 1980, the date of the order directing that default judgment be entered if the answers were not filed within ten days. Since the record does not reflect that service of this order was accomplished upon the defendants and, to the contrary, indicates that counsel for the plaintiff thereafter proceeded as though the matter were to be tried within days thereafter, we are of the view that the defendants have provided a reasonable explanation for the failure to file such answers during that crucial period.

Order reversed and remanded for proceedings not inconsistent with this opinion.

      . While the praecipe indicates the default judgment should be entered pursuant to an order of Judge Cirillo, the order of October 30, 1980, upon which the praecipe was based, was actually an order of Judge Avrigian.


text:
    453 A.2d 1057
    William BARNES v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 22, 1982.
    Filed Dec. 23, 1982.
    John Francis I. Smith, III, Philadelphia, for appellant.
    Alan Schwartz, Philadelphia, for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   PER CURIAM:

We are of the opinion, after a careful study of the entire record as well as the briefs of the parties, that the Court en banc properly denied the Motions that had been filed for a new trial and remittitur, and, therefore, we affirm the judgment on the opinion of the distinguished members of the Court en banc, Judge Bernard Snyder, Judge Stanley M. Greenberg and Judge Alfred J. DiBona, Jr.


text:
    453 A.2d 1058
    COMMONWEALTH of Pennsylvania v. Albert BOATWRIGHT, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1982.
    Filed Dec. 23, 1982.

      Dennis J. Clark, Pittsburgh, for appellant.
    Dara A. DeCourcy, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   PER CURIAM:

Appellant Albert Boatwright was convicted of a violation of the Uniform Firearms Act, 18 Pa.C.S.A. § 6106 (carrying a firearm without a license) by the Honorable Loran Lewis sitting without a jury. Following the denial of post-verdict motions and sentencing, this direct appeal was filed. Because we find the evidence insufficient to sustain the conviction, we reverse and discharge appellant.

The Commonwealth’s evidence disclosed that, shortly after 10:00 p.m. on April 10, 1979, Officers Charles Roller and Annette Roebuck responded to a radio call concerning three “suspicious” men in an automobile parked in front of a residence in the Hazelwood section of Pittsburgh. Upon arriving at the location, Officer Roller observed appellant, who was seated in the front passenger seat of the vehicle, “moving towards his left rear.” (R. 40a). The officer could not see appellant’s hand or arm, only a movement of his body. (R. 56a). Officer Roller then opened the door of the automobile and asked appellant to get out. He shined a light onto the left rear floor of the vehicle and saw a gun. In addition to appellant, the car was occupied by the driver and another passenger who was seated in the left rear seat. The car was registered to the driver’s girlfriend and the gun to one Darlene Simpson.

Because the firearm was not found on appellant’s person, he could properly be convicted only if the Commonwealth proved joint constructive possession with the other occupants of the vehicle. Commonwealth v. Duffy, 235 Pa.Super. 413, 340 A.2d 869 (1975). To do this, the Commonwealth must present evidence to show that appellant had both the power to control the firearm and the intent to exercise that control. Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980). Mere presence at the scene where the gun was found is not sufficient. Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968). The only evidence other than mere presence was Officer Roller’s testimony that appellant made a movement toward the left rear of the vehicle. This evidence cannot provide proof beyond a reasonable doubt that appellant possessed the firearm in question. Therefore, the conviction cannot be sustained. Commonwealth v. Keller, 249 Pa.Super. 384, 378 A.2d 347 (1977).

Judgment of sentence reversed and appellant discharged.

      . Because of our disposition of this case, we need not deal with the other issues raised by appellant. These are: (1) that he was denied his right of allocution at the time of sentencing and (2) that the lower court erred in refusing to suppress the evidence.


author: VAN der VOORT, Judge: HOFFMAN, Judge, WICKERSHAM, Judge,

text:
    454 A.2d 12
    COMMONWEALTH of Pennsylvania, v. Ronald Lee TABAS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1980.
    Filed April 12, 1982.
    Petition for Allowance of Appeal Denied July 1, 1982.
    Reargument Denied Dec. 3, 1982.

      Theodore Simon, Philadelphia, for appellant.
    Alan J. Jarvis, Assistant District Attorney, West Chester, for Commonwealth, appellee.
    Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

A jury found appellant guilty of possession of phentermine and marijuana with intent to deliver, and criminal conspiracy. Post-trial motions were denied and appellant was sentenced to pay a fine of $500 and to serve a term of IIV2 to 23 months imprisonment.

The appeal to this court, filed by appellate counsel, who replaced trial counsel, raises four arguments involving fourteen sub-issues.

We will discuss the issues in a numerical order different from that of the appellant’s.

1. The sufficiency of the evidence.

Counsel argues that the Commonwealth failed to prove:
a) that appellant was not licensed; and
b) that the drug was a controlled substance.

As to proof of licensing, our decision in Commonwealth v. Sojourner, 268 Pa.Superior Ct. 488, 408 A.2d 1108 (1979), (so-called Sojourner II), clarifying Commonwealth v. Sojourner, 268 Pa.Superior Ct. 472, 408 A.2d 1100 (1978), is controlling. While the Commonwealth has the burden of proof as to non-authorization, “the accused must first come forward with some credible evidence of authorization (assuming the government’s case-in-chief has not provided such evidence) before the government need negative authorization beyond a reasonable doubt.” 268 Pa.Superior Ct. at 500, 408 A.2d 1108. Appellant has failed to so proffer such evidence of authorization.

Appellant goes on to complain in essence that he was convicted for possession of a drug not listed in the schedules of controlled substances as Phentermine is not so listed. He also contends that even if listed the Commonwealth failed to demonstrate that the quantity possessed had a potential for abuse.

The first part of this argument is easily explained. Phentermine is not listed in the schedules contained in Chapter 35, Section 780-104 of Purdon’s statutes. However, the Secretary of Health is authorized by The Controlled Substance, Drug, Device, and Cosmetic Act (hereafter referred to as the Act) to make additions to the list established by the General Assembly. 35 P.S. 780-103. Such supplemental schedules may be found at Title .28, Pennsylvania Code, Section 25.72. The drug Phentermine is clearly listed in schedule IV, currently at subsection (e)(3)(ii) (added August 21, 1976).

Appellant relying on Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979) and Commonwealth v. Teada, 235 Pa.Superior Ct. 438, 344 A.2d 682 (1975) argues that the Commonwealth failed to demonstrate that the phentermine found contained a quantity of the drug having a potential for abuse. Appellant relies on 35 P.S. § 780-104(4)(i), Act of April 14, 1972, P.L. 233, No. 64 § 4 which was in effect at the time of his arrest and which read as follows:

(4) Schedule IV—In determining that a substance comes within this schedule, the secretary shall find: a low potential for abuse relative to substances in Schedule III; currently accepted medical use in the United States; and limited physical and/or psychological dependence liability relative to the substances listed in Schedule III. The following controlled substances are included in this schedule:
(i) Any material, compound, mixture, or preparation, unless specifically excepted or unless listed in another schedule, which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system---(Emphasis added)

However, phentermine was not contained in the above paragraph (i). Notice of proposed rule making was published by the Secretary of Health at 6 Pa.Bulletin 574, March 20, 1976. The rule was adopted as proposed on August 20, 1976, 6 Pa.Bulletin 1985. As proposed and adopted phentermine was contained in the following paragraph.

(ix) Diethylpropion
(x) Phentermine
(xi) Pemoline
Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the substances mentioned in paragraph (4)(ix) through (xi) of this section, having a stimulant effect on the central nervous system, including its salts, isomers whether optical, position, or geometric, and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation.

(Emphasis added). The Secretary of Health, pursuant to the Act, 35 P.S. 780-103, had determined that any quantity of phentermine had a potential for abuse. Therefore, the Commonwealth was not required to demonstrate the drug’s potential for abuse.

2. Admission of evidence of other crimes.

Appellant’s co-defendant Lord, a/k/a Snyder, (hereinafter referred to as Snyder) had pleaded guilty to the possession of cocaine, and was used as a prosecution witness against appellant. During the cross-examination of another prosecution witness, appellant’s trial counsel brought out that there was testimony attributed to Snyder in the case about cocaine found only in a tool box owned by and under the control of appellant. On re-direct, over objection, Trooper Shaw stated that other cocaine was also discovered on the premises.

Appellant now contends that the admission of this testimony constituted reversible error, because a) it improperly brought in the record evidence of an apparently unrelated crime, and b) the introduction of this evidence violated an agreement between trial counsel not to inquire into drugs not alleged to be within the possession of appellant. The inquiry on redirect was in response to the cross-examination of Trooper Shaw. Defense counsel had attempted to demonstrate to the jury that if Snyder had pleaded guilty to possession of the same cocaine involved in the case, then appellant could not also have possessed the drugs in question. In any event, if appellant was prejudiced by the Commonwealth’s inquiry, we find that any possible prejudice was cured when after a break to discuss the legal problem, Judge Pitt reversed himself, and instructed the jury to disregard any reference to other amounts of cocaine found elsewhere other than in the tool box. The court then informed the jury that the Commonwealth had stipulated that the appellant had no knowledge of any other cocaine. The court went so far as to poll the jury concerning their understanding that it was improper to consider such evidence.

3. Effectiveness of counsel in filing post-trial motions.

The five subheadings involved in this contention refer to alleged trial errors which were not specified in post-trial motions, and therefore deemed by the trial judge to have been waived. Appellate counsel now argues that trial counsel’s failure to preserve these “meritorious issues” constituted ineffective counseling, and that, therefore, appellant is entitled to a new trial. The legal precedents do permit new counsel to raise the issue of the effectiveness of prior counsel: Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). However, there is the qualification, of course, that

“counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen had some reasonable basis designed to effectuate his client’s interest.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Therefore, an appellate court will not find that counsel has been ineffective in electing not to pursue claims of no substantial merit, a) First, appellant contends that trial counsel failed to object to an improper admission into evidence of a “prior consonant statement” of prosecution witness Snyder, which he had made to his attorney.

We find no error in this regard. As indicated above Snyder was appellant’s alleged co-conspirator and co-defendant, he had entered a plea and had received a short sentence apparently due to his willingness to testify as a prosecution witness. He was cross-examined vigorously and at length. Trial counsel developed that the witness had originally given a different version of the various events to the police, inconsistent with his testimony at the trial. To rehabilitate the witness’s testimony, the court permitted over objection the witness’s attorney to testify that the witness had told him, before the plea bargaining was begun, a version of events consonant with his version on the witness stand.

Due to the limited purpose for which the challenged evidence was received, we find no reversible error in the circumstances. See, Commonwealth v. Gaddy, 468 Pa. 303, 315, 362 A.2d 217 (1976); Commonwealth v. Cooper, 230 Pa.Superior Ct. 204, 327 A.2d 177 (1974).

b) Counsel claims “reversible error” in the court’s allowing the prosecution to reopen its case after it had closed and the defense had initially indicated that it would not present any defense. The additional testimony tended to support the testimony of prosecution witness Snyder. Arguendo, the witness could have been called as part of the Commonwealth’s case-in-chief, but we find the trial judge’s decision to permit reopening of the case for this one witness lay within the court’s judicial discretion. Commonwealth v. Evans, 488 Pa. 38, 44, 410 A.2d 1213 (1979).

c) Appellate counsel claims that there was insufficient evidence of conspiracy, and that trial counsel was therefor ineffective in failing to pursue that claim in his written post-trial motions.

The testimony of Snyder (N.T. Trial 316-318) as to the collective effort of appellant, Snyder, and others to process marijuana into oil was enough, if accepted by the jury, to prove a criminal conspiracy. There is no basis for a finding of ineffectiveness on this point.

d) The fourth complaint contends that the trial judge erred in refusing to permit the impeachment of Snyder by a prior conviction for possessing bombs, silencers, etc., and carrying a concealed deadly weapon. Counsel concedes that generally a witness may be impeached by evidence of prior convictions only if the crimes involve dishonesty or false statement (crimen falsi): Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976). In this present case, however, counsel argues that, after the Commonwealth had introduced evidence of the witness’s good character in military service, the defense should have been permitted to show the previous convictions because the offense occurred during the witness’s military service.

Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) is the leading Pennsylvania case concerning the use of prior convictions for impeachment purposes. Bighum established that certain factors must be considered in allowing impeachment of a defendant by a prior conviction. Commonwealth v. Ashmore, 266 Pa.Superior Ct. 181, 403 A.2d 603 (1979), applied the Bighum criteria to the impeachment of prosecution witnesses. The factors to be considered are:

the age and nature of the prior crimes; the length of the criminal record; the age and circumstances of the defendant; the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant’s story than to know of a prior conviction, (citation deleted) This last factor is of critical importance.

Bighum, 452 Pa. at 567, 307 A.2d 255.

In the current case the conviction was ten years old; it did not involve crimen falsi; and more importantly the witness’s credibility had been seriously questioned and tarnished both on direct and cross-examination. The jury was clearly advised that the witness was an admitted, convicted, co-defendant of appellant. Testimony was presented that there were two reasons why he chose to testify against appellant. First, he was offered a sentence of eleven and a half (IIV2) to twenty-three (23) months if he pled guilty and testified against appellant as compared to a five (5) to ten (10) year sentence if he did not testify. Secondly, the witness indicated that he testified because the appellant reneged on a promise to assist him in his defense. Also there was some discussion about the witness’ dislike for appellant due to the appellant’s alleged relationship with the witness’s girl friend. Finally, the witness repeatedly admitted that he had lied to the police and had fabricated a story that differed with his testimony at trial. Under these circumstances we can find no reversible error in the court’s decision to disallow the introduction of the prior conviction.

e) Next, appellant argues that the search warrant was improperly executed as the officers forcibly entered the premises instead of waiting for a response to their knocking.

Trooper Shaw, in charge of the group assigned to the execution of the search warrant in this case, testified that he and his group went to the residence to be searched; knocked on the door “once and two knocks and extremely loud and ... shouted ‘State Police, Search Warrant’ ... waited for a short period of time (maybe 15 to 20 seconds) ... knocked again extremely hard ... again yelled ‘State Police, Search Warrant’ ... waited 25 to 30 seconds ... didn’t hear anything inside”, and forced the door open. (N.T. Suppression p. 8).

Appellant argues that the entry into the house was unlawful because further opportunity should have been given the residents to respond. We disagree. Considering the circumstances, the length of time, Commonwealth v. Burstin, 259 Pa.Superior Ct. 584, 393 A.2d 979 (1978), the subject of the search was controlled substances which could be readily destroyed, Commonwealth v. Pugh, 223 Pa.Superior Ct. 112, 296 A.2d 864 (1972); and that the authorities had information that firearms may be present, (N.T. Suppression p. 10) we find the denial of the motion to suppress was correct.

Counsel also argues that the search warrant “lacked present probable cause.”

A brief summary of the affidavit of probable cause in support of the search warrant reveals the following:

1) An informant had entered the residence with another individual. The other individual purchased some marijuana; prior to leaving, a joint of marijuana was smoked. There was some conversation that a shipment of cocaine was to be received at the house in the near future.
2) The affiant and the informer drove to the house. The house matched the description given by the informant.
3) Two automobiles were observed at the residence; a check of their registrations indicated they were registered to individuals with drug related criminal records.
4) The informant drove the individual mentioned in paragraph one (1) to the residence to purchase some cocaine. While the informant remained outside, the individual returned with a bag of white powder. The informant determined the powder to be “very good coke.”
5) The informant had previously provided information leading to at least two convictions for drug violations and at least one other arrest pending action.

We find that the above averments contained in the affidavit established probable cause that illegal drugs were to be found in the residence. See, Commonwealth v. Prokopchak, 279 Pa.Superior Ct. 284, 420 A.2d 1335 (inter alia, cars of suspected drug dealers were observed); Commonwealth v. Passarelli, 274 Pa.Superior Ct. 436, 418 A.2d 485 (1980) (inter alia, informer had purchased marijuana); and Commonwealth v. Albert, 264 Pa.Superior Ct. 390, 399 A.2d 1106 (1979) (inter alia, informant’s information had previously led to two arrests for dangerous drugs), where affidavits of probable cause were found to be sufficient.

Counsel also argues that trial counsel was ineffective in failing to request findings of fact and conclusions of law following the hearing in the motion to suppress. Such are required by Pa.R.Crim.P. 323(i). If the motion to suppress had no arguable merit, as we have indicated above, no harm to the appellant resulted from trial counsel’s election not to push the technical requirement of findings of facts and conclusions of law. Commonwealth v. Nero, 250 Pa.Superior Ct. 17, 378 A.2d 430 (1977).

4. Effectiveness of counsel at trial.

Appellant claims counsel was ineffective by failing to preserve various issues, in violation of the appellant’s rights under the Sixth Amendment of the Constitution of the United States, as well as Article 1 § 9 of the constitution of this Commonwealth. He alleges six errors under this heading. In passing we must again note that counsel cannot be deemed ineffective for failing to pursue issues without any arguable merit. See Commonwealth ex rel. Washington v. Maroney, supra.

A) Counsel argues that trial counsel failed to demand a hearing on the Commonwealth application under Rule 1100 for an order extending the time for commencing trial. The record shows that 180 days would have terminated on October 18, 1977; that appellant and his trial counsel presented themselves to the court on October 11, 1977, when the case was listed for trial, and asked for and received a continuance, waiving Rule 1100; that the Commonwealth’s Application for an order extending the time was filed on October 18, 1977. In these circumstances, we see no probable efficacy in trial counsel asking for a hearing as appellant had waived his right to be tried by October 18, 1977.

B) Next it is claimed that the jury returned a verdict of possession of a controlled substance (a misdemeanor), but that the court improperly sentenced appellant for possession of controlled substances with the intent to deliver (a felony), Appellant cites Commonwealth v. Samuels, 235 Pa.Superior Ct. 192, 340 A.2d 880 (1975). Appellant was charged with two offenses:

(1) possession of controlled substances with intent to deliver; and
(2) conspiracy.

The jury returned verdicts of guilty on both counts. Thereupon Judge Pitts engaged in a colloquy with the jury foreman. The jury indicated that they found appellant guilty on the first count “in the manner and form as he stands indicted.” (N.T. Trial pp. 505-506). We find that the verdict returned by the jury on the first count was for the possession with intent to deliver (the only offense charged in the first count). The sentence imposed was therefore within the statutory limitations.

The Samuels case, supra, is easily distinguished: there the indictment charged (1) possession, (2) purchase; and (3) the manufacturing, ... delivering, or possessing with intent to manufacture or deliver. The trial judge, sitting non-jury, found defendant guilty only of possession and made no comment on the other two counts. On appeal, this court found that the defendant had in effect been acquitted of the two other counts. Here, two counts were charged and appellant was adjudged guilty of both.

C) Complaint is made that trial counsel was ineffective “for failing to object to a sentence which penalized [appellant] for not cooperating with Commonwealth.” There are two short but dispositive answers to this complaint. First, counsel did remind the court that appellant could not be sanctioned for exercising his right to be tried by a jury, instead of accepting a plea bargain. (N.T. Continued sentencing p. 6). Second there is no demonstration that the court did penalize appellant for a failure to cooperate. As it happens, the sentence imposed upon appellant except for a fine of $500, was the same as Snyder received after pleading guilty.

Appellate counsel also claims that the trial judge failed to state adequately on the record his reasons for imposing the sentence, as required by Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and the cases following it.

Relatives and acquaintances of appellant testified on behalf of appellant at the sentencing phase. Sentencing was postponed for two weeks and additional discussions ensued and letters were received. The court was reminded by counsel of the Sentencing Guidelines and counsel zealously argued for probation. We find that the record amply demonstrates that the court evaluated both the nature of the crime and the characteristics of appellant before sentencing him.

The court, finding that appellant came from a relatively well-off, respectable family and that there was no reasonable explanation for appellants involvement in a drug operation located in an isolated location, found that the appellant was in need of punishment. While there is no strict formal compliance with the existing guidelines for sentencing, we find this case to be similar to Commonwealth v. Roberts, 263 Pa.Superior Ct. 237, 247, 397 A.2d 1187 (1979). In Roberts this court stated “we cannot say that the demands of Riggins were flouted when substantial consideration was clearly given to the individual circumstances and the reasons for the sentence appeared of record.” Also as indicated previously trial counsel called the court’s attention to the Sentencing Code and Guidelines.

D) Appellate counsel argues that trial counsel was ineffective in failing to subpoena Deborah Dalton, a co-defendant as a trial witness, and a Trooper Durante as a witness in the motion to suppress. Complaint is also made as to the failure to locate two other possible witnesses, including someone from the C.I.A. to dispute (or confirm) that body’s employment of Snyder/Lord and to call one Phil Klien who was supposedly present when a shipment of cocaine was delivered to the house.

Defense counsel cannot be required to investigate and call all conceivable witnesses irrespective of nature or extent of their potential information out of fear of being deemed ineffective. Commonwealth v. Barren, 273 Pa.Superior Ct. 492, 417 A.2d 1156 (1980).

As to the alleged failure to locate and interview Klien, we can find no prejudice to appellant. Appellant admits that Klien could only testify to the delivery of cocaine, this testimony, he claims would have shown Snyder to be a continual liar. First, we must note that the jury exonerated appellant of all charges pertaining to cocaine. Lord was an admitted liar, admittedly involved in drug trafficking and his disdain for appellant had been amply demonstrated on the record. Accordingly, such additional testimony would be collateral as well as cummulative.

No witness can be contradicted on everything he testifies to in order to ‘test his credibility. The privotal issues in a trial cannot be sidetracked’ for the determination of whether or not a witness lied in making a statement about something which has no relationship to the case on trial. The purpose of trials is not to determine the ratings of witnesses for general veracity. A witness can be contradicted only on matters germaine to the issue trying. There is no rule more firmly established than this

Commonwealth v. Petrillo, 341 Pa. 209, 223, 19 A.2d 288 (1941).

A similar conclusion is justified as to the failure to produce a witness to testify to Snyder’s involvement with the Central Intelligence Agency; it would have been collateral.

A number of law enforcement officers, were involved in the execution of the search warrant. Appellant claims that counsel was ineffective in failing to subpoena one Trooper Durante, who was unavailable at the Suppression Hearing. Trooper Shaw who actually effectuated the forced entry testified that 20 to 25 seconds lapsed between the initial knock and the entry. Trooper Girard, who covered the rear entrance estimated the lapsed time to be 20 to 25 seconds; Agent Crovetti, testified that he was to the side of the front door, estimated the time that passed was “ample time for someone to answer the door.” “Six or eight seconds, maybe, I don’t know.” (N.T. Suppression pp. 99, 100). The vanguard of the search group consisted of Shaw, Durante, and DiPierro. Counsel after interviewing DiPierro found that his testimony was not helpful to defendants case. Failure to interview a prospective witness, may not be the basis for relief by way of a claim of ineffectiveness of counsel, if such is based on conjecture and not on what the witness would actually testify. Commonwealth v. Warner, 277 Pa.Superior Ct. 598, 419 A.2d 1312 (1980). Appellant merely argues that Durante may have been helpful on the issue of the execution of the search warrant. As there is no evidence that such testimony would have been contradictory to the other officers we find no basis to find counsel ineffective. See Commonwealth v. Hampton, 269 Pa.Superior Ct. 464, 410 A.2d 349 (1979).

Next, it is argued that counsel was ineffective in not subpoenaing Deborah Dalton, who was a frequent guest at the house; who was present when the search warrant was executed; and who was charged as a co-defendant. At the close of the Commonwealth’s case defense counsel was granted two recesses for the purpose of procurring Dalton. After the first delay counsel indicated that the witness was amenable to testifying but wished to confer with her counsel first, and appellant’s trial counsel was unable to contact Dalton’s attorney. (N.T. Trial p. 423). The second recess was granted after which the Commonwealth was permitted to reopen its case. The defense rested without presenting any testimony, and without any further requests to delay the trial until Dalton could be procured.

Trial counsel’s failure to subpoena Dalton, a material witness, or to request further recesses to secure her are not explained on the record. Failure to secure the presence of such a material witness has been the basis for awarding new trials. Commonwealth v. Fallings, 251 Pa.Superior Ct. 365, 380 A.2d 822 (1977); Commonwealth v. Charleston, 251 Pa.Superior Ct. 311, 380 A.2d 795 (1977). The Commonwealth argues that it is possible counsel chose against calling Dalton either because he determined she would not help his case or because she would invoke her right to remain silent as she was then subject to trial on similar charges. While we may not conjecture as to why such witness was not called, we believe the record justifies remanding for an evidentiary hearing as to this claim of ineffectiveness of counsel.

Case remanded for an evidentiary hearing for determination whether or not trial counsel was ineffective in not subpoenaing Deborah Dalton as a defense witness or in not requesting a delay in the trial in order to secure her presence. If it is determined that counsel was not ineffective then the judgment of sentence shall stand affirmed; if it is determined that trial counsel was ineffective then the judgment of sentence shall be vacated and appellant be awarded a new trial.

E) Appellate counsel argues that trial counsel should have requested the court to charge on “a lesser included charge” of “possession”, rather than “possession with intent to deliver.”

Appellant was found to have possessed approximately one hundred (100) pounds of marijuana and four to five thousand (4000-5000) phentermine capsules. “The issue ... is whether the evidence at trial would possibly support both a conviction of the lesser offense of possession of a small quanity for personal use and an acquittal of possession ... with intent to deliver.” Commonwealth v. Wilds, 240 Pa.Superior Ct. 278, 288, 362 A.2d 273 (1976). In Wilds the defendant was convicted of possession with intent to deliver, however, two different amounts of drugs were involved, one small amount (less than 30 grams) found on his person and another large amount (almost two kilograms) seized from a room. The court found that the jury could have possibly convicted him of the possession of a small quanity found on his person while acquitting him of the charge of the large amount. Here, only large amounts of illicit drugs are involved; the jury could not have properly convicted him of simple possession. The amount of drugs seized raised an inference of possession with intent to deliver as opposed to possession for personal use. Commonwealth v. Cubler, 236 Pa.Superior Ct. 614, 346 A.2d 814 (1975). “It is not error ... for a judge to refuse to instruct the jury on the lesser included offense unless the evidence could support a conviction of the lesser offense.” Wilds, 240 Pa.Superior Ct. 278, at 287, 362 A.2d 373. An attorney cannot be deemed ineffective for failing to request a charge, where the evidence could not reasonably support such charge.

F) Lastly, appellant argues that trial counsel failed to object to a portion of the Commonwealth’s closing argument where the prosecutor allegedly made a misstatement of fact as to what the witness Falato had testified.

The witness testified concerning a drug commonly known as “honey oil”. He stated that it is derived from marijuana and was very profitable. The prosecutor inquired whether there was any discussion as to how the drug was produced. The witness indicated that there was no talk as to how it was made. In closing the Commonwealth reviewed the above conversation stating that appellant and others including Lord were going to refine marijuana into oil.

We find this to be a fair comment. In addition to Falato’s testimony, Snyder/Lord had earlier testified that marijuana was being pooled to be processed into marijuana oil. Accordingly, counsel cannot be faulted for not challenging a proper closing comment.

Except for trial counsel’s failure to call Miss Dalton and the lack of his reason for so doing, we find no merit to appellant’s other claims of ineffectiveness. Counsel cannot be deemed ineffective for failing to pursue issues without arguable merit. Commonwealth v. Burch, 248 Pa.Superior Ct. 8, 374 A.2d 1291 (1977).

WICKERSHAM, J. files a Dissenting Statement in which he finds no reason to remand for any purpose and he would affirm.

HOFFMAN, J. files a Concurring and Dissenting Opinion. He joins VAN der VOORT, J. in remanding for an evidentiary hearing to determine whether or not appellant’s counsel was ineffective in failing to call Deborah Dalton as a defense witness; but he would further remand for an evidentiary hearing on counsel’s effectiveness in failing to request findings of fact and conclusions of law following the suppression hearing below.

Case remanded for an evidentiary hearing to determine whether or not counsel was ineffective in not calling Deborah Dalton as a defense witness. If the finding is that counsel was ineffective, then the judgment of sentence shall be vacated and a new trial granted to appellant; if the finding is that counsel was not ineffective in not calling Deborah Dalton, then the judgment of sentence shall stand affirmed.

HOFFMAN, J., files a concurring and dissenting opinion.

WICKERSHAM, J., files a dissenting statement.

HOFFMAN, Judge,

concurring and dissenting:

The majority holds that appellant’s suppression motion was without arguable merit, and thus counsel was not ineffective in failing to preserve related issues for appellate review. Because the record is insufficient for us to make that determination absent the suppression court’s findings of fact and conclusions of law, I must dissent.

Rule 323(i) of the Pennsylvania Rules of Criminal Procedure provides:

At the conclusion of the hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought.

“The purpose of Rule 323(i) is to insure a meaningful appellate review of the lower court’s decision.” Commonwealth v. Harris, 275 Pa.Superior Ct. 18, 25, 418 A.2d 589, 592 (1980). An appellate court “does not in the first instance make findings of fact and conclusions of law.” Commonwealth v. Jackson, 464 Pa. 292, 298, 346 A.2d 746, 748 (1975). We must “insist on a full compliance with Rule 323©.” Id., 464 Pa. at 298, 346 A.2d at 748. When a suppression court fails to enter adequate findings of fact and conclusions of law, we are precluded from our appellate function of determining whether “the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977), quoting Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975). The lower court’s only attempt at compliance with the rule was at the conclusion of the suppression hearing, when it stated:

(N.T. at 142). Such a superficial statement is wholly inadequate to provide this Court with the basis for a meaningful review. See Commonwealth v. Jackson, supra (conclusory statement that there was no coercion used in obtaining confession insufficient). Absent adequate findings of fact and conclusions of law to guide our review, I cannot presume, as does the majority, that appellant’s suppression motion lacked arguable merit. Accordingly, I would vacate the judgment of sentence and remand to the lower court for an evidentiary hearing to determine whether “the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). If it be determined that counsel was ineffective, appellant would be entitled to “a new suppression hearing, after which the hearing judge shall enter findings and conclusions as required by Rule 323(i).” Commonwealth v. Spaulding, 275 Pa.Superior Ct. 261, 263, 418 A.2d 712, 713 (1980). See Commonwealth v. Jackson, supra. Following the suppression hearing, if it be determined that the evidence should have been suppressed, a new trial should be granted. If the evidence should not have been suppressed, then the judgment of sentence should be reinstated. Similarly, if it be determined that counsel’s representation was effective, then judgment of sentence should be reinstated. Either party aggrieved by the lower court’s ultimate decision may then appeal as permitted by law.

WICKERSHAM, Judge,

dissenting:

I would affirm the judgment of sentence.

It is clear from the record that trial counsel gave consideration to calling Deborah Dalton as a witness but that there was a Fifth Amendment problem as she was subject to trial on similar charges. It is not clear that she was a material witness for the defense.

      . Because of a falling out between appellant and the witness Snyder, and the latter’s willingness to testify against appellant, the proof of conspiracy in this present case was more direct than frequently is possible. See, Commonwealth v. Holman, 237 Pa.Superior Ct. 291, 295, 296, 352 A.2d 159 (1975).

      . Testimony by other police officers varied somewhat as to the estimates of time.

      . The majority correctly notes that the testimony of the troopers varried as to the lapse of time between their initial knocking and their breaking in the door. That lapse is critical to a determination of whether appellant was given a reasonable opportunity to voluntarily surrender his privacy. See Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971).

      . I do, however, join in Judge VAN der VOORT’S view that there should be an evidentiary hearing to determine whether appellant’s trial counsel was ineffective in failing to call Deborah Dalton as a defense witness.


author: SPAETH, Judge:

text:
    454 A.2d 24
    COMMONWEALTH of Pennsylvania v. Floyd SANTNER, M.D., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1981.
    Filed July 9, 1982.
    Reargument Denied Sept. 15, 1982.
    Petition for Allowance of Appeal Denied March 3, 1983.

      Burton A. Rose, Philadelphia, for appellant.
    Kristine F. Hughey, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for violations of the Controlled Substance, Drug, Device and Cosmetic Act. 35 Pa.P.S. § 780-101 et seq. Appellant, a medical doctor, was convicted by a jury of dispensing controlled substances to drug dependent persons and of dispensing controlled substances not in the good faith course of professional conduct. 35 Pa.P.S. § 780-113(a)(13) & (14). Appellant argues, among other matters, that the lower court erred in denying his pre-trial motion to suppress evidence obtained from his office because “the search warrants were defective in that they were overly broad in describing the items to be seized and therefore constituted unlawful general search warrants.” Appellant’s Brief at 6. We agree, and therefore reverse and grant appellant a new trial.

The particularity clause of the fourth amendment to the United States Constitution provides in pertinent part:

[N]o warrants shall issue, but upon probable cause ... and particularly describing the ... things to be seized.

The United States Supreme Court has stated that “[t]he requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 70, 72 L.Ed. 231 (1927). The “general searches” referred to by the Court represented a practice “which has been condemned by Americans since Colonial Days.” United States v. Abrams, 615 F.2d 541, 543 (1st Cir.1980). Indeed it was popular dissatisfaction with this practice that lead to the adoption of the fourth amendment:

It is familiar history that indiscriminate searches and seizures conducted under the authority of “general warrants” were the immediate evils that motivated the framing and adoption of the Fourth Amendment. Indeed, as originally proposed in the House of Representatives, the draft contained only one clause, which directly imposed limitations on the issuance of warrants, but imposed no express restrictions on warrantless searches or seizures. As it was ultimately adopted, however, the amendment contained two separate clauses, the first protecting the basic right to be free from unreasonable searches and seizures and the second requiring that warrants be particular and supported by probable cause.
Payton v. New York, 445 U.S. 573, 583-4, 100 S.Ct. 1371, 1378-9, 63 L.Ed.2d 639 (1980) (footnotes omitted).

A warrant is unconstitutional under the fourth amendment for its overbreadth “if it is broader than can be justified by the probable cause on which the warrant is based.” LaFave, 2 Search and Seizure 97 (1978). We believe that an examination of the warrant and the affidavit here demonstrates that the warrant authorized a far broader search than was justified by the probable cause.

The warrant identified the items to be seized as “All Patient/Physician records and charts. All ledgers and bookkeeping pertaining to patients and visits.” The affidavit accompanying the warrant stated the following in the “probable cause” section:

Within the past 6 or 7 months, numerous complaints were received from concerned citizens in the neighborhood that there was an inordinate amount of traffic by people in their teens, at the above location, and these people would go into the above persons [sic ] offices come out, congregate on the street, and would lay on the lawns and sidewalks in the area. The complainants indicated that they believed that the young people were taking some type of drugs. On numerous occassions [sic] the above officers conducted surveillances at the above location. On days of surveillances the above officers observed many people, some being in their teens. Many of the people in our opinion and experiences as narcotic officers, did appear to be under the influence of some type of drugs. Our surveillances further revealed that almost ninety-five percent of the people that entered and then left the above location went immediately to the Long Lane Court Pharmacy where, as we observed, the prescription written by the above person was tendered to and filled by the pharmacist. We also observed known drug users to this department, those being John Searle, Moe McNally, Greg Searle. . On or about the first week of February, 1978, officer John Falls and other officers from this narcotic unit interviewed Mr. Walter Quinn and Raymond Freeberry, who are pharmacists at the Long Lane pharmacy. They permitted us to examine their records. Our personal examination of the records revealed the following: An excessive amount of class 11 drugs being prescribed by Dr. Floyd A. Santner, for example from February 1, 1978 to February 24, 1978 15,901 Quaaludes were dispensed, 3,129 Ritalins were dispensed, 903 Percodans were dispensed and 1,023 of other class 11 drugs were dispensed. The total of class 11 drugs dispensed in this 24 day period were 20,966. A check of other records showed that approximately 20,000 Quaaludes are being prescribed by Dr. Santner in an average months [sic] time.
A check was made with Dr. Philip Ingaglio, who is the current Chairman of the board of physicians, who handles physician licensure for the State of Pennsylvania. Dr. Ingaglio indicated that the drugs prescribed were, and the quantities prescribed as set forth above were outrageously large. Dr. Ingaglio also felt that this type of practice was not [in] keeping within accepted medical standards. A check with 3 other pharmacies in the same general area revealed that the above quantities were also outrageously high.
The above defendant also advertises, on his billing literature, a practice with a Dr. John Sardar M.D. A check of the records in Harrisburg, Penna. concerning the licensing of physicians indicates that Dr. John Sardar is not licensed in the state of Penna. to practice as a physician, and has never been licensed to practice. State Drug Investigation unit agent, Ester Kiah, went to the above location as a patient several times and each of the times was prescribed a class 2 drug. On February 27, 1978 the above officers interviewed a reliable confidential informant, who has given these officers reliable information in the past, which has led to arrests and convictions, and he related the following.
On several occassions [sic] he was a patient at Dr. Santner’s office and he did receive Quaaludes, which he was not given a written prescription for, but was told to go to the Long Lane pharmacy to pick them up, which he did.
On February 27, 1978 the above officers interviewed one Hogan Jolly and Calvin Blackwell who are both patients of Dr. Floyd Santner M.D. and they related to these officers that are both drug addicted persons and are currently on methadone programs in the city of Philadelphia. Both are obtaining class 2 drugs from Dr. Santner. On February 27, 1978 the above officers also interviewed one Cheryl Rementer and she told us that she went to Dr. Santner last year, when she was 15 years of age and told Dr. Santner that she had problems sleeping at night and Dr. Santner prescribed Quaaludes for her. She stated that she went there because her friends told her its \sic ] easy to get Quaaludes from Dr. Santner.
Based on the foregoing we have reason to believe that the above person at the above location has violated the laws of Penna. dealing with the licensed practice of medicine and the manner in which the practice is to be conducted in that he has conspired with John Sardar and Harrison G. Stone and to allow them to practice without a license, and based on the quantity of traffic into and from the above office, by surveillance, our examination of pharmacy records and our conversation with the referenced physicians, we believe the above Dr. Santner, is prescribing controlled substances for known addicts and controlled substances not being for maintainance for their addiction. These controlled substances or other drugs being prescribed are not in good faith in the course of his professional practice.

As may be seen from these allegations, the affidavit identified eight named individuals whom the officers knew or had interviewed; it further identified, although not by name, a class of individuals whose prescriptions were examined at the Long Lane Court Pharmacy; and it specified two periods—February 1978 and “the past 6 or 7 months”— as the periods during which the activity in question had occurred. Despite this specificity, the warrant was not restricted either to the files of the eight named individuals, or to the files of the class of individuals whose prescriptions had been examined, or as to time. Instead, it authorized the seizure of all of the patients’ “records and charts,” and all “ledgers and bookkeeping pertaining to patients,” whether the patients were or were not taking any drugs, and whether they were current patients or had not been patients for many years. The extent of this entirely unnecessary overbreadth may be seen by what happened. The executing officers seized some 3,600 files. Only 50 were introduced in evidence at trial.

While the issue appears to be one of first impression in Pennsylvania, similarly overbroad warrants have been found unconstitutional in the federal courts. See United States v. Abrams, supra (warrant did not specify which medical records could be seized and was not limited as to time); United States v. Roche, 614 F.2d 6 (1st Cir.1980) (warrant did not specify that only automobile insurance records could be seized); Application of Lafayette Academy, supra (warrant did not specify that only documents relating to federal loan program could be seized); Mantilla Records of Puerto Rico, Inc. v. Morales, 575 F.2d 324 (1st Cir.1978) (warrant did not specify that only records with Motown label could be seized); Vonder AHE v. Howland, 508 F.2d 364 (9th Cir.1974) (warrant did not specify that only financial records of taxpayer dentist could be seized but permitted seizure of all records, including personal letters); United States v. Klein, 565 F.2d 183 (1st Cir.1977) (warrant not specific as to time); United States v. DeFalco, 509 F.Supp. 127 (S.D.Fla.1981) (warrant did not specify which records or films could be seized but authorized seizure of anything reflecting conspiracy between 45 defendants).

In Application of Lafayette Academy, supra, the Department of Health, Education and Welfare, investigating a vocational home-study school for possible fraudulent practices incident to participation in the Federal Insured Student Loan Program, obtained a warrant that authorized seizure of the following items:

“books, papers, rosters of students, letters, correspondence, documents, memoranda, contracts, agreements, ledgers, worksheets, books of account, student files, file jackets and contents, computer tapes/discs, computer operation manuals, computer tape logs, computer tape layouts, computer tape printouts, Office of Education (HEW) documents and forms, cancellation reports and directives, reinstatement reports or forms, Government loan registers, refund ledgers, reports and notes, administrative reports, financial data cards, lesson and grading cards and registers, registration (corporations) documents, student collection reports, financial documents (corporations), journals of accounts and student survey data, which are and constitute evidence of the commission of violations of the laws of the United States, that is violations of 18 U.S.C., Sections 286, 287, 371, 1001 and 1014;
610 F.2d at 3.

The court held that the warrant lacked particularity because it did not specify “the precise nature of the fraud and conspiracy offenses” alleged, id., and also explained in a careful opinion that the warrant was overbroad:

We have said that a principle [sic] deficiency here is the lack of particularity in the phrase which purports to qualify and delineate the generic categories of items: the description “books, papers ... letters, correspondence, documents, .. which are and constitute evidence of the commission of violations of the [federal conspiracy and fraud statutes]” provides insufficient guidance to the executing officer as to what items from among many he should seize. The qualifying phrase in effect does nothing to limit the broad warrant description. If, of course, the generic descriptions were sufficiently specific and particular standing alone, the defect in the qualifying phrase would be of no effect. For the most part, though, the categories listed here are too broad. Certainly the description “books, papers ... letters, correspondence, documents, memoranda, contracts, agreements, ledgers, worksheets, books of account, ... computer tape/discs, ... computer tape logs, computer tape layouts, computer tape printouts, .. reports and notes, administrative reports, financial data cards ... financial documents (corporations), journals of accounts” does not, standing alone in the circumstances of this case, satisfy the fourth amendment. True, it could be argued that as the above description authorizes in effect the search and seizure of all books, papers, etc., the warrant does not suffer from a lack of particularity. The directions to the executing officer are straightforward—he is to cart away all documents. But while, so interpreted, the description would be particular enough, it would also be too broad to satisfy the probable cause requirements of the fourth amendment. The affidavit does not establish probable cause to search and seize all of those items.
In contrast to the broad categories of items set forth above, certain of the warrant items may be sufficiently particularized standing alone, for example, “rosters of students,” “student files, file jackets and contents,” “lesson and grading cards and registers,” “student collection reports,” and “student survey data.” However, while these documentary descriptions may be sufficiently specific, they cover documents antedating Lafayette Academy’s participation in FISLP. According to the affidavit in support of the warrant, Lafayette Academy was organized as a correspondence school in 1969 but did not participate in FISLP until 1972. While the affidavit establishes the relevance of post-1972 student documents, it does not indicate any nexus between the earlier student documents and alleged criminal behavior. The warrant thus improperly authorizes the seizure of documents that are apparently irrelevant to the fraud.

Id. at 5-6 (footnote omitted).

In United States v. Abrams, supra, the Department of Health, Education and Welfare, investigating three doctors who, it believed, were submitting false Medicare bills, obtained a warrant that authorized seizure of the following items:

[Tjhere is now being concealed certain property, namely evidence of a crime, to wit, certain business and billing and medical records of patients of Doctors Abrams, London, Braun, and Abrams, London and Associates, Inc. which show actual medical services performed and fraudulent services claimed to have been performed in a scheme to defraud the United States and to submit false medicare and medicaid claims for payments to the United States or its agents; in violation of Title 18, United States Code, Section 1001[.]
615 F.2d at 542.

The executing officers seized all of the doctors’ Medicaid and Medicare records, and twenty records of patients who were neither Medicare nor Medicaid recipients. The court held that the warrant was void for its lack of particularity:

The warrant at issue fails to meet the requirement of particularity. The officers’ discretion was unfettered, there is no limitation as to time and there is no description as to what specific records are to be seized. As a result of this general description, the executing officers seized all of the Medicare and Medicaid records of the three doctors and, in addition, records of non-Medicare-Medicaid patients. It seems clear that the executing officers could not or made no attempt to distinguish bona fide records from fraudulent ones so they seized all of them in order that a detailed examination could be made later. This is exactly the kind of investigatory dragnet that the fourth amendment was designed to prevent.
Id. 543 (footnote omitted).

Concurring, Judge CAMPBELL observed that the problem with the warrant was lack of particularity and overbreadth:

Unless the necessary judgment is one the executing officers can be expected to perform reliably, a description identifying seizable items as any that constitute evidence of the particular fraud would seem too general. A related question is the extent to which a warrant may properly authorize the seizure of files containing a jumble of “innocent” as well as “guilty” materials. In the present case, the file of a Medicare-Medicaid patient obviously contains a good deal more material than that which bears on the padded reimbursement claims of the physician. The latter presumably consists mainly of papers showing what actual medical services and procedures were provided, together with copies of the doctor’s claim for monetary reimbursement. But the physician may also have retained in the file notes of patient complaints and history, and of his own diagnoses and evaluation. The file could include patient information of a very private nature. Compare Hawaii Psychiatric Association v. Ariyoshi, 481 F.Supp. 1028 (D.C.Haw.1979) (enjoining search, pursuant to state administrative warrant, of Medicaid psychiatric patient records). In cases of the present sort, I do not believe that a criminal warrant can properly direct the seizure of each Medicare-Medicaid patient’s entire file in a doctor’s office, with its mix of relevant and irrelevant materials. As discussed in Lafayette, such a warrant might be adequately particular, in that it would inform the executing officer precisely what to take (i.e., all files of Medicare-Medicaid patients), but it would violate the probable cause requirement of the fourth amendment, since it would permit the indiscriminate seizure of irrelevant “innocent” materials of a confidential nature along with materials pertinent to the Medicare-Medicaid fraud being investigated.
Id. 548-9 (footnote omitted).

These decisions—especially Abrams, which involved medical records and closely resembles the present case—demonstrate that the rationale of the lower court—that because the officers did not know which specific files to seize, they could seize them all—cannot justify the warrant. We are especially persuaded of this conclusion in view of the fact, discussed above, that the officers had an excellent idea of what specific information they needed, and could easily have made the warrant much less broad, both as to which patients’ files could be seized and as to the period of time. The warrant could have been restricted to medical records of the eight known individuals named in the affidavit; it could have been restricted to the medical records of the patients whose records were examined at the pharmacy; and it could have been limited as to time, by, for example, authorizing seizure of the medical records of only those persons who were patients during February 1978, or even during “the past 6 or 7 months.” A similar observation regarding possible limitations on a warrant was made by the court in Abrams:

In the first place, if an affidavit contains an averment by an employee that fraudulent practices were regularly pursued during his or her employment, and the term of such employment is set forth, the warrant could authorize the seizure of all records of Medicare and Medicaid services billed and purportedly performed during that period. In the second place, if the means of identification required some analysis and matching, e.g., by comparing patients’ invoices with records of actual tests performed, this is a sufficient guarantee of particularity. Should the process be deemed too disruptive by the occupant of the premises, he would have the option of agreeing that documents or copies thereof be taken from the premises for the necessary scrutiny. In other words, the person whose premises are to be searched could insist on a search in situ rigorously restricted to the directions in the warrant, with the right to consent to means less physically disruptive.
Id. 545.

See also, United States v. Roche, supra; Montilla Records of Puerto Rico v. Morales, supra.

The Commonwealth has argued that the “special context exception” justifies the overbreadth of the warrant because “the health and welfare” of “third parties, the doctor’s patients, [were] involved.” Commonwealth’s Brief at 8. This “exception” is less an exception than a “consideration.” As the Commonwealth acknowledges, it has only been applied where “there was substantial evidence to support the belief that the class of contraband was on the premises and in practical terms the goods to be seized could not be precisely described.” Montilla Records of Puerto Rico v. Morales, supra at 326. Furthermore, the Commonwealth fails to note that its argument has been consistently rejected where contraband is not involved. United States v. Abrams, supra (medical records); Montilla Records of Puerto Rico v. Morales, supra (record albums). As the court in Abrams said:

Business records, although they may contain evidence of fraud, do not fall into the category of stolen or contraband goods. The government has cited no case and we have found none in which a seizure of all records was held valid pursuant to a generally worded warrant such as we have here.
615 F.2d at 545.

The Commonwealth’s argument proves too much. Almost every criminal case involves “the health and welfare” of “third parties.” Thus, to accept the Commonwealth’s argument would effectively eliminate the doctrine of over-breadth. A warrant could authorize the seizure of all of the personal possessions and records of every suspected murderer, rapist, or arsonist. The Commonwealth seems not to recognize that the purpose of the fourth amendment is not to protect “health and welfare” but privacy. Here, the overwhelming number of appellant’s patients—some 3,550 —had their personal medical files seized. These files were not introduced at trial, and one can only assume that they were unrelated to the crime under investigation. The state had no business knowing what these patients had told their doctor, and what maladies they had. See Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965) (fourth amendment accorded the “most scrupulous exactitude” when first amendment rights are involved); LaFave, 2 Search and Seizure 109-111 (1978).

The motion to suppress should have been granted, and we therefore order a new trial.

      . Two warrants issued, one authorizing the search of appellant’s home, the other the search of his office. Both warrants were based on the probable cause allegations copied at pages 26-27 infra. Only the warrant authorizing the office search is included in the reproduced record and is discussed here.

      . The particularity requirement prohibits a warrant that is not particular enough and a warrant that is overbroad. These are two separate, though related, issues. A warrant unconstitutional for its lack of particularity authorizes a search in terms so ambiguous as to allow the executing officers to pick and choose among an individual’s possessions to find which items to seize. This will result in the general "rummaging" banned by the fourth amendment. See Marron v. United States, 275 U.S. 192, 195, 48 S.Ct. 74, 75, 72 L.Ed. 231 (1927). A warrant unconstitutional for its overbreadth authorizes in clear or specific terms the seizure of an entire set of items, or documents, many of which will prove unrelated to the crime under investigation. The officers executing such a warrant will not rummage, but will "cart away all documents.” Application of Lafayette Academy, 610 F.2d 1, 3 (1st Cir.1979). An overbroad warrant is unconstitutional because it authorizes a general search and seizure. See discussion infra at 25-26. Of course, the close relationship between these two issues means that some warrants may contain both defects—ambiguity and overbreadth—and may be held unconstitutional on either ground. See United States v. Abrams, 615 F.2d 541 (1st Cir.1980) (warrant unconstitutional for lack of particularity, concurring judge would find both defects); Application of Lafayette Academy, supra (discussing relationship between lack of particularity and overbreadth). Although appellant blends these issues, it is clear that his argument is that the warrant was unconstitutional for its overbreadth. Appellant’s Brief at 6-15.

      . The particularity requirement of the Pennsylvania Constitution, article I, section 8, is slightly different from that of the federal constitution, providing in part that: ”[N]o warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause____” The only decision interpreting this requirement holds that it is co-extensive with the federal requirement. Commonwealth v. Smyser, 205 Pa.Superior Ct. 599, 211 A.2d 59 (1965). We agree that it affords at least as much protection, for certainly it may not provide less, and do not consider whether "as nearly as may be” provides more protection.

      . In a footnote to this statement the Supreme Court provided additional background:
      Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hatred writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of British tax laws. They were denounced by James Otis as ‘the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,’ because they placed ‘the liberty of every man in the hands of every petty officer.’ The historic occasion of that denunciation, in 1761 at Boston, has been characterized as 'perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. "Then and there,” said John Adams, "then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” ’ Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524 [529], 29 L.Ed. 746.” Stanford v. Texas, 379 U.S. 476, 481-482, 85 S.Ct. 506 [509-10], 13 L.Ed.2d 431.

        Id. 583 n. 21, 100 S.Ct. 1378 n. 21. And see, Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325 [99 S.Ct. 2319, 2323, 60 L.Ed.2d 920] (1979) (warrant which did not particularly describe items to be seized “reminiscent of writ of assistance of the 18th century against which the Fourth Amendment was intended to protect.”).

      . In some cases an insufficiently particular warrant has been “saved” from unconstitutionality by a specific affidavit. Matter of Property, Etc., 644 F.2d 1317 (9th Cir.1981) (warrant accompanied affidavit and used words of incorporation to clarify lack of particularity). Such cases are inapposite here, however, for while the affidavit is specific, the issue is the warrant’s overbreadth, not its lack of particularity.

        . The lower court said that:
      In the case at bar, the investigating officers were not blessed with specific information concerning the names of all those to whom the Defendant might have illegally dispensed prescriptions or controlled substances. Rather, the investigation had proceeded to a point where a review of the Defendant’s records was necessary. Thus, the warrants necessarily permitted the seizure of all patients’ records in order to determine whether and to what extent the probable illegal conduct existed.
      Slip op. at 9.

      . The distinction between a search for contraband and a search for business records is an historic one. See Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). Until Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), state agents could not search personal or business files, as distinguished from the “fruits and instrumentalities of crime.” It is for this reason that there are so few cases and “[t[he law is largely unformed in this difficult area.” United States v. Abrams, supra at 549 (concurring op.).