author: CIRILLO, Judge: SPAETH, Judge,

text:
    462 A.2d 1351
    Carol A. RUTH, Appellant, v. Charles C. RUTH.
    Superior Court of Pennsylvania.
    Argued May 4, 1982.
    Filed July 1, 1983.

      Richard P. Nuffort, Lancaster, for appellant.
    John W. Beyer, Lancaster, for appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from an Order of the Court of Common Pleas of Lancaster County, dated September 30, 1981. The procedural history and facts relevant to the issues on appeal are as follows:

On July 9, 1980 the appellant, wife, instituted an action under the New Divorce Code, alleging that the marriage was irretrievably broken. Subsequently, the appellee, husband, filed a consent to the entry of a divorce decree. On July 30, 1980 the wife filed additional claims for alimony, counsel fees, child support and distribution of marital property under Section 401 of the Code.

A hearing was held before a Divorce Master on December 9, 1980 and the Master’s Report was filed on March 13, 1981. The Master recommended, inter alia, that a consent divorce be granted, that alimony be awarded to the wife for a period of ten years, that the marital property be divided favorably to the wife, and that the wife’s request for counsel fees be denied.

Exceptions to the Master’s Report were filed by both parties and argued before the lower court. The divorce was granted since neither party objected and all of the necessary documents had been filed. However, the court modified the Master’s recommendation by awarding to the wife the marital home, subject to a mortgage, as well as all furnishings and contents of the home determined to be marital property, one-half of the cash downpayment from investment properties, one-half of the income from investment properties, and one-half of the proceeds from the parties’ 1979 income tax refund. The wife was also awarded alimony in the amount of $400.00 per month for a period of two years. The wife was denied counsel fees because, in the opinion of the lower court, she was provided with sufficient cash awards to pay her own counsel. The husband was awarded the property known as Deer Camp in Sullivan County, as well as one-half of the income from investment properties and one-half of the proceeds from the tax refund. The Master’s other determinations concerning the parties’ responsibility for respective bills and the disposition of personal property were affirmed by the lower court based upon the husband’s superior present and anticipated future earning power. Thereafter, the wife filed this appeal.

Prior to the enactment of the New Pennsylvania Divorce Code, the scope of appellate review concerning the award of alimony pendente lite, counsel fees and expenses was the “manifest abuse of discretion” test. The New Divorce Code is silent on the matter of the scope of appellate court review. However, in the recent case of Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983), an en banc panel of this Court held that orders for alimony pendente lite, counsel fees and permanent alimony under the new Divorce Code should also be reviewed only for an abuse of discretion by the lower court. In deciding to adopt the abuse of discretion standard, the Court in Remick considered both the nature of the awards in question and their treatment under the prior divorce law. In that case, this Court stated:

While this Court is very much concerned with orders affecting the property rights of the parties to a marriage or the support of the children from that union, our concern in those, essentially monetary judgments is not as paramount as it is with the decisions ruling on the status of the marriage or custody of the children. Under the new Divorce Code, orders for alimony pendente lite or counsel fees should continue to be reviewed on appeal under an abuse of discretion standard, inasmuch as the character of the remedy continues to remain unchanged. On the same reasoning, alimony orders under the Code should also be reviewed only for an abuse of discretion and not broadly, as is the actual decree in divorce. This approach is in keeping with both the case history developed under the prior law and within the aims of the Divorce Code. Id., 310 Pa.Superior at 30, 456 A.2d at 166.

In determining the propriety of property distribution awarded under the New Divorce Code, we likewise use the abuse of discretion standard of review. See: Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983). While an order distributing property is final and permanent and may very well have a decisive and lasting effect on the lives of the parties, it is essentially a monetary judgment of the type the Court in Remick decided should be reviewed for an abuse of discretion.

Under Section 102(a)(6), Legislative Findings and Intent, the Code states:

The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:
(6) Effectuate economic justice between parties who are divorced or separated and ... insure a fair and just determination and settlement of their property rights.

Under the abuse of discretion standard, we are not to usurp the trial court’s duty as finder of fact. Moreover, we do not choose to follow presumptions in the hope of achieving the legislature’s goal of “economic justice”. At oral argument in this case, a suggestion was made by counsel for the parties that this Court adopt “guidelines” or establish “presumptions” to be applied in deciding issues involving property rights under the Code. In view of the legislative guidelines which are set out forthwith, we see no need for this Court to enumerate additional criteria. Rather, we will carefully scrutinize each of the guidelines in determining whether or not the lower court has abused its discretion. This will assure that our review of proceedings under the New Divorce Code be appropriately assiduous.

The wife’s first contention on appeal is that the division of marital property made by the lower court is inequitable. Guidelines for the distribution of marital property are set out in Section 401(d) of the New Divorce Code which provides:

In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training, or increased earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets and income.
(6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party at the time the division of property is to become effective.

The lower court found that the parties were married for almost 25 years and that neither was previously married. At the time of the hearing the wife was 43 years of age, in good health, had a high school education, and worked as a legal secretary for $140.00 per week. She also received $65.00 a week from the county for the care of a foster child and had no minor children living at home. The husband is a year older than the wife, is in good health, has a ninth grade education, and earns $33,000.00 per year as a salesman. During the marriage, the wife had always remained at home as a homemaker while the husband worked his way up from a laborer to a sales position.

In reviewing the record as found by the lower court, in light of the provisions of the New Divorce Code, we find that the distribution of marital property was indeed equitable, and therefore, the lower court did not abuse its discretion. The investment properties were the result of the joint efforts of the parties while they were married, and thus should be divided equally. Even though all of the children are emancipated, there would be less disruption in the family’s life-style by awarding the house and all of the furniture to the wife. Likewise, it is appropriate that Deer Camp, with a net value of about $5600.00, be awarded to the husband since he would have a greater interest in this property than would the wife. Finally, due to the husband’s greater earning capacity, he was properly given the responsibility for paying the greater amount of indebtedness left outstanding during the marriage. Therefore, we find this first contention of the wife to be without merit.

The wife next contends that the award of alimony was unreasonable both in amount and duration. The wife was awarded alimony by the lower court in the amount of $400.00 per month for two years. In addition, the wife earns a weekly salary and receives $381.00 a month from investment property.

Section 501(a) of the New Divorce Code indicates:

The court may allow alimony, as it deems reasonable, to either party, only if it finds that the party seeking alimony:
(1) lacks sufficient property, including but not limited to any property distributed pursuant to Chapter 4, to provide for his or her reasonable needs; and
(2) is unable to support himself or herself through appropriate employment.

In this case, even though the wife is currently employed, the lower court found that she lacked sufficient property to provide for her reasonable needs, due to the decision that she be primarily responsible for mortgage payments in the amount of $762.00 per month on the marital residence. We agree with the trial court that an award of alimony is proper under the circumstances.

In determining the size of the alimony award, section 501(b) of the Code provides the following guidance:

In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
(1) the relative earnings and earning capacities of the parties.
(2) The ages, and the physical, mental and emotional conditions of the parties.
(3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
(4) The expectancies and inheritances of the parties.
(5) The duration of the marriage.
(6) The contribution by one party to the education, training or increased earning power of the other party.
(7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home.
(8) The standard of living of the parties established during the marriage.
(9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
(10) The relative assets and liabilities of the parties.
(11) The property brought to the marriage by either party.
(12) The contribution of a spouse as homemaker.
(13) The relative needs of the parties.
(14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony. Initially we note the lower court found that over the 25

year period of the marriage, both parties had been unfaithful on more than one occasion. Considering the 14 factors listed in section 501(b), as well as the favorable distribution of marital property which the wife received, we find that the lower court did not abuse its discretion in ordering alimony in the amount of $400.00 per month for 2 years. This award is fair and reasonable and will provide the wife with an adequate period of time for financial and family adjustments required by the marriage dissolution. It will also enable the wife to accrue substantial equity in the marital home should she decide to sell it after 2 years. The wife contends that the award made by the Master of $400.00 per month for 10 years would be reasonable under the facts of this case. However, such an award would be violative of the rehabilitative purpose of alimony, and so we reject this contention of the wife.

The wife further contends that the lower court should have awarded her reasonable counsel fees. Section 401(b) of the Code provides in pertinent part:

... The court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own costs, or may order that costs be divided equitably as it shall appear just and reasonable.

In the distribution of marital property, the wife was provided with one-half of the cash downpayment from the parties’ investment properties and one-half of the parties’ 1979 income tax refund. These awards totalled almost $2000.00 in cash. The lower court found this to be a sufficient amount of funds from which the wife could pay her counsel fees of $1680.00. We find no abuse of discretion by the lower court in failing to award counsel fees to the wife. We also note that the wife will receive one-half of the income from the parties’ investment properties which also could be used to pay her counsel fees. Accordingly, we reject this claim made by the wife.

For all of the above reasons, we affirm the Order of the Court below.

Order affirmed.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

I agree with the majority that Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983) (en banc), requires us to review the lower court’s order by an abuse of discretion standard, but in my opinion the majority offers no adequate definition of that standard, and as a result, misapplies it. In Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982), the Supreme Court held that in asking whether an abuse of discretion has occurred, we are to proceed in two steps. First we look to see whether the lower court has made findings of fact, whether it has considered those facts in light of the factors enumerated in the Divorce Code, and whether it has stated of record the reasons for its order distributing the parties’ marital property and awarding or denying permanent alimony. If the lower court hás not satisfied these requirements, its order must be reversed and the case remanded. Only if the court has satisfied these requirements do we consider whether its order represents an abuse of discretion. Here the lower court failed to make certain critical findings of fact, and failed to consider those facts it did find in light of the factors enumerated in the Divorce Code. For this reason alone, its order should be reversed and the case remanded. But if one overlooks the court’s failure to follow Bacchetta, still I think it clear that the lower court’s order represents an abuse of discretion. I should therefore reverse and remand.

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In Remick v. Remick, supra, we said:

While this Court is very much concerned with orders affecting the property rights of the parties to a marriage or the support of the children from that union, our concern in those, essentially monetary judgments is not as paramount as it is with the decisions ruling on the status of the marriage or custody of the children. Under the new Divorce Code, orders for alimony pendente lite or counsel fees should continue to be reviewed on appeal under an abuse of discretion standard, inasmuch as the character of the remedy continues to remain unchanged. On the same reasoning, alimony orders under the Code should also be reviewed only for an abuse of discretion and not broadly, as is the actual decree in divorce. This approach is in keeping with both the case history developed under the prior law and within the aims of the Divorce Code.
Remick v. Remick, id. 310 Pa.Super. at 30, 456 A.2d at 166 (emphasis added).

Here, the lower court’s order directs, among other matters, that the marital home shall be awarded to the wife; that she should have “[pjrimary responsibility for payment of the mortgage” on the home; and that the husband shall pay her alimony of $400 a month for two years. The order is therefore precisely the sort of order that Remick says “should ... be reviewed only for an abuse of discretion and not broadly.”

I share the majority’s concern that our review of orders distributing marital property be appropriately careful. For it is quite true that such orders “may very well have a decisive and lasting effect on the lives of the parties.” Maj.op. at 1353. Indeed, this is equally true of orders awarding—or declining to award, as the case may be—permanent alimony. However, adequately defined, and properly applied, the abuse of discretion standard may nevertheless effectively protect the parties’ interests. My difference with the majority is that it offers no adequate definition of the abuse of discretion standard, and as a result, improperly applies it.

The Divorce Code provides that before the lower court may enter an order distributing marital property or awarding or denying alimony, it must consider certain enumerated “relevant factors.” The Code further provides that when the court does enter its order, it must “set forth the reason or reasons” for its order. These provisions make plain the Legislature’s intention that the lower court’s discretion, when it orders a distribution of property or awards or denies alimony, is not a general discretion but one that must be exercised within specifically defined boundaries.

It follows that our responsibility, as an appellate court, is to determine whether the lower court has exercised its discretion within the boundaries defined by the Legislature. In other words: When we ask whether the lower court has “abused its discretion,” we are asking, not a single, general question, but several, specific questions: First, has the lower court made findings of fact, so that the record discloses which of the “relevant factors” enumerated in the Divorce Code are present, and which are not? Second, has the court considered the facts, as it has found them, in light of the relevant factors? And third, has the court “set forth the reason or reasons” for its order? If the court has not satisfied these requirements, its order must be reversed and the case remanded. It is only when the court has satisfied these requirements that we defer to the court’s discretion.

In Remick v. Remick, supra, we might have held that even when the lower court has satisfied the three procedural requirements that have just been enumerated, we will exercise our independent judgment in deciding whether the court’s order was fair. But Remick did not so hold, holding instead that “in keeping with both the case history developed under the prior law and within the aims of the Divorce Code,” id,., an abuse of discretion standard should be applied. It may be granted that Remick did not say in so many words that an abuse of discretion standard should be applied only after it has been determined from the record that the lower court has satisfied the requirements of the Divorce Code. But this conclusion is implicit in Remick, and in any event, and more important, it is explicit in Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982).

In Bacchetta the issue was whether application of the Divorce Code to marital property acquired before the Code’s effective date was an unconstitutional deprivation of property. The Supreme Court, by ROBERTS, J. (now C.J.), NIX, FLAHERTY, and LARSEN, JJ., held that there was no unconstitutional deprivation. The Court noted that “[t]he Code mandates that marital property be distributed in such portions as the court deems just after considering all relevant factors,’ ” and that “such a court-ordered distribution ‘must by its terms be “equitable’ ” (quoting an opinion by the New Jersey Supreme Court). Id., 498 Pa. at 234-235, 445 A.2d at 1198. After quoting the relevant factors enumerated by the Legislature “[t]o aid the court in the exercise of its equitable discretion,” id., the Court said:

A party claiming that the court should take into account one of the above factors must of course establish the relevance of the factor to the particular case. And in exercising its discretion, the court is required to set forth the “reason or reasons for the distribution ordered. ” 23 P.S. § 404. This provision not only serves to enhance the rationality of decision making but also permits effective appellate review. Cf. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (court required to articulate reasons for sentence). Thus, equitable distribution of property acquired during the marriage occurs only upon divorce, only in cases where it is justified, and only in amounts warranted by the facts.
Id. (emphasis added).

The Supreme Court’s citation in this statement to Commonwealth v. Riggins, supra, is particularly to be noted. Riggins involved the Sentencing Code. Act of Dec. 30, 1974, P.L. 1052, No. 345, § 1, as amended, 42 Pa.C.S.A. § 9701 et seq. (Purdon’s 1982). The Sentencing Code and the Divorce Code are alike in that they both require that the lower court, before it may exercise its discretion, either to impose criminal sentence, or to distribute marital property or award or deny alimony, must first, find what the facts are; next, in the light of the factors enumerated in the Code, consider what result those facts justify; and finally, state of record the reasons for its decision. Riggins held that if the court doesn’t satisfy these requirements, its sentence will be vacated and the case remanded for re-sen-tenting, but that if the court does satisfy them, then its sentence will be vacated only for abuse of discretion. We have on many occasions applied this technique of appellate review in criminal cases. See, e.g., Commonwealth v. Rooney, 296 Pa.Super. 288, 442 A.2d 773 (1982); Commonwealth v. Aldinger, 292 Pa.Super. 149, 436 A.2d 1196 (1981); Commonwealth v. Weldon, 287 Pa.Super. 533, 536, 430 A.2d 1180, 1181 (1981); Commonwealth v. Youngkin, 285 Pa.Super. 417, 427 A.2d 1356 (1981); Commonwealth v. Cappiello, 284 Pa.Super. 476, 426 A.2d 146 (1981); Commonwealth v. Campolei, 284 Pa.Super. 291, 425 A.2d 818 (1981); Commonwealth v. Kostka, 276 Pa.Super. 494, 419 A.2d 566 (1980); Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1979); Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979). With Bacchetta decided, we should now also apply it in divorce cases where we are asked to review an order distributing marital property or awarding or denying permanent alimony.

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This case, in my opinion, should be a good illustration of how effectively the Bacchetta technique of appellate review may protect the parties’ interests. For the lower court has failed to make certain critical findings of fact; it has failed to consider those facts it did find in light of the factors enumerated in the Divorce Code; and when one examines the lower court’s reasons for its order in light of the facts, one must conclude that the order is inconsistent with the factors enumerated in the Divorce Code, and represents an abuse of discretion.

The lower court noted that “[t]he key question involves the distribution of the marital home.” Slip op. at 5. The court further noted that “[t]he other key marital property subject to distribution was created by the parties’ agreement for the sale of investment property during their marriage.” Id. at 7 (footnote omitted). It will be convenient to consider these two items of marital property in reverse order. It will be unnecessary in the course of this consideration to refer to all of the matters covered by the lower court’s order, such as a “deer camp,” various furnishings, an automobile and truck, unpaid bills, and so on, for the lower court is correct that the key items of property are the marital house and the proceeds of the sale of the investment property.

As a result of their sale of the investment property, the parties are entitled to receive a down-payment of $3,000, and $762 per month for twenty years. Slip op. at 8. The lower court ordered that “the parties should share equally in this income ... [and in] the cash down payment____” Id. Accordingly, under the court’s order the wife is entitled to receive $1,500 cash and one half of $762, or $381, per month for twenty years.

The master found that the value of the marital home is $66,500. Master’s Report at 12. He further found that the home is encumbered by a mortgage of $68,679, on which the payments are $760 per month. Id. at 6.

In its opinion, the lower court does not refer to the master’s findings; it makes no finding of what is the value either of the marital home or of the wife’s interest in the home; the court’s only reference to these matters is to say that under its order, the wife “will be primarily responsible for mortgage payments of $762.00 a month on the marital residence.” Slip op. at 9. The court concludes that the marital home should be distributed to the wife, and gives as its reasons that this “will cause the least disruption to the family’s lifestyle” and will not represent “a windfall in that Plaintiff [the wife] will be primarily responsible for the mortgage payments on the home and Plaintiff’s contribution to the marriage partnership as a homemaker and mother provides ample justification for the award.” Slip op. at 7. All of this, of course, raises the question: If the wife is to be awarded the marital home, how is she to pay for it?

The lower court recognized that if the wife was to be able to stay in the home awarded to her, she would require the means to pay for it:

Accordingly [the court said], the Court will direct that Defendant [the husband] provide alimony for Plaintiff in the amount of $400.00 a month for a period of two (2) years.
It is intended that this award provide Plaintiff with a two-year period for considering financial and family adjustments required by the marriage dissolution. The two-year period will also hopefully provide Plaintiff with the accrual of substantial equity in the house should she dispose of the house after the two years.
Slip op. at 9.

This reasoning will not withstand examination.

As mentioned, under the lower court’s order the wife will receive $381 per month from the proceeds of the sale of the investment property. Plainly, she can’t make the $760 monthly mortgage payments on the marital home from that. When one adds the $400 per month alimony payments ordered by the lower court, it is seen that she will receive $381 plus $400 or $781 per month from the husband. That will be just enough to pay the mortgage, but it allows nothing for maintenance, and furthermore, under the lower court’s order, the wife will receive the $400 per month for only two years. After that, how is she to pay for the home?

The only answer the lower court makes to this question is to say that “hopefully” the two-year period will “provide [the wife] with the accrual of substantial equity in the home should she dispose of the home after the two years.” But nothing warrants any such “hope[ ].” It is certain that the wife will not accrue any “substantial equity” by making two years of mortgage payments; although the record does not disclose the exact terms of the mortgage, one may be confident that most of the payments will be towards interest on the mortgage debt. Nor is there the least reason to suppose that something will happen during the next two years that will enable the wife to add $400 a month to her earnings, so that when her alimony stops, she will be able to replace the loss of alimony income from her increased earnings. When the wife testified before the master, in December 1980, she was 43 years old. N.T. 10. She is therefore now at least 45. The parties were married for 23 years—they married in 1956—and they have three children, two daughters, both married, and a son, who was 17 and was living with the wife when the master filed his report.

Id. at 3. The master found:

Plaintiff basically stayed in the house and reared the children while defendant went out to support the family. Plaintiff has only begun to work as a secretary-receptionist in the last year (N.T. 10). Although Plaintiff is a high school graduate (N.T. 59), considering her age her future prospects of employability at a higher salary level than she currently holds are dim at best. If she had the opportunity, she would like to improve her secretarial skills or get into paralegal work, as she currently works for a law firm (N.T. 59).
Master’s report at 9 (emphasis added).

The wife’s current salary level to which the master refers was $148 per week gross, $103 per week net. N.T. 34-35.

The lower court makes no reference to these findings by the master, nor does it make any findings of its own regarding the wife’s employability and earning capacity. Nowhere does the court explain or make any findings that support any basis for its “hope[ ]” that in two years, after the wife’s alimony stops, she will somehow be able to live in the marital home. One can only agree with the lower court’s prediction that she may “dispose of the home after the two years.” Slip op. at 9. The disposition will be effected by the bank foreclosing on the mortgage. We can’t say what will be the wife’s position then; the lower court made no findings regarding the value of the home or the amount of the wife’s equity in the home. We can say that so far as income is concerned, the wife will be entitled to only the $381 per month from the proceeds of the sale of the investment property, plus her earnings of about $600 per month as a secretary-receptionist, in other words, about $1,000 per month income, or $12,000 per year, before taxes.

One may now compare the wife’s situation with the husband’s. Under the lower court’s order he too will receive $381 per month from the proceeds of the sale of the investment property, or $4,572 per year. He will also receive some $33,000 per year in salary, or a total annual income of some $37,500, before taxes. As the master found:

[W]hile only educated to the ninth grade, [the defendant husband] rose to become a vice president of the Buck Iron works at a salary of $34,000 per year (N.T. 80), although he has since the separation taken a sales job with a Michigan based firm at $33,000 per year (N.T. 80). Defendant does have the future ability to increase his earning power pursuant to his company’s profit sharing plan (N.T. 112), although he must expend some of his salary on expenses (N.T. 113).
Master’s report at 9.

Again, the lower court makes no reference to these findings by the master, nor does it make any findings of its own comparing the husband’s economic situation and prospects with the wife’s. However, so far as appears, the court’s order leaves the husband financially some three times better off than the wife, and with better prospects.

It is clear to me—and I find no reason suggested by my colleagues to conclude otherwise—that we should reverse the lower court’s order and remand for further proceedings consistent with Bacchetta v. Bacchetta, supra. In the first place, the lower court has not satisfied the procedural requirements that Bacchetta holds must be satisfied. The court has failed to make critical findings of fact, especially regarding the value of the marital home and the wife’s and husband’s comparative economic situations and prospects. The court has further failed to consider those facts it did find in light of the factors enumerated in the Divorce Code. These failures alone require reversal. It is just as though the court in imposing sentence for crime had failed to make findings of fact regarding the defendant’s individual characteristics, and in deciding upon its sentence, had failed to consider the factors enumerated in the Sentencing Code. In such a case we reverse and remand. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. High, 304 Pa.Super. 174, 177, 450 A.2d 158, 159 (1982); Commonwealth v. Haggerty, 294 Pa.Super. 591, 440 A.2d 623 (1982); Commonwealth v. Andrews, 282 Pa.Super. 115, 422 A.2d 855 (1980). But if for the sake of discussion one overlooks these failures, still we should reverse and remand, for it is clear that the lower court’s order represents an abuse of discretion.

A court may abuse its discretion because its factual statements are not supported by competent evidence. See, e.g., Commonwealth v. Dixon, 279 Pa.Super. 587, 421 A.2d 355 (1980) (support order reversed for abuse of discretion where not based on competent evidence). A court may also abuse its discretion because it has failed to take account of the legal principles by which it is to judge the facts, or has misapplied those principles. See, e.g., Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983). Here, the lower court has abused its discretion in both of these ways.

The lower court abused its discretion because its factual statements are not supported by competent evidence. As I have already discussed, the master made certain critical findings of fact, and his findings are supported by competent evidence, but the lower court makes no reference to these findings. While the court expressed the hope that after two years the wife will have accrued a “substantial equity” in the marital home, no facts of record warrant that hope. To the contrary, so far as we can tell, the wife will not have been able to accrue any substantial equity, and will lose the home by foreclosure on the mortgage.

The lower court also abused its discretion because its order is inconsistent with almost every one of the “relevant factors” enumerated by the Legislature in defining the boundaries within which the lower court is to exercise its discretion. The legislature has directed that in distributing marital property, “the court shall ... consider” the length of the marriage (factor No. 1), the skills, employability, liabilities and needs of each of the parties (factor No. 3); the contribution by one party to the increased earning power of the other (factor No. 4); the opportunity of each party for future acquisition of assets or income (factor No. 5); the sources of income of both parties (factor No. 6); the contribution of a party as homemaker (factor No. 7); the value of the property set apart to each party (factor No. 8); the standard of living established by the parties during their marriage (factor No. 9); and the economic circumstances of each party at the time the distribution is ordered (factor No. 10). 23 Pa.C.S.A. § 401(d). If the lower court had given proper consideration to these factors, it could not have entered the order it did. For 23 years (factor No. 1), the wife as a homemaker (factor No. 7) has enabled the husband to advance in his career (factor No. 4), with the result that while she is now unskilled, with—as the master properly put it—“dim [prospects] at best” (factor No. 3), he has attained a position of relative prosperity (factors Nos. 6, 8, and 10) with good prospects (factor No. 5). Yet the lower court has entered an order that will in two years leave the husband with some three times greater income, and the wife unable even to approach the standard of living she enjoyed during the marriage (factor No. 9).

The order of the lower court should be reversed and the case remanded for further proceedings consistent with this opinion.

      . The New Divorce Code provides:
      It shall be lawful for the court to grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and 90 days have elapsed from the date of filing of the complaint and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.
      The Act of April 2, 1980, P.L. 63, No. 26, § 201; 23 P.S. § 201(c).

      . At the time this appeal was filed, all children born of the marriage were emancipated adults, therefore, the issue of child support is moot.

      . The Act of April 2, 1980, P.L. 63, No. 26, § 101; 23 P.S. §§ 101 et seq.

      . Under the prior Divorce Code concerning the collateral issues of alimony, counsel fees and expenses, this Court stated:
      “A trial court possesses a wide range of discretion in the fixing of the amount of an award, and an appellate court will not interfere except in cases of manifest abuse of discretion.” (citations omitted)

        Oswald v. Oswald, 263 Pa.Super. 85, 87, 397 A.2d 7, 9 (1979); see also: Jack v. Jack, 253 Pa.Super. 538, 385 A.2d 469 (1978).

      . Act of May 2, 1929, P.L. 1237, § 1 et seq., 23 P.S. § 1 et seq.

      . 23 Pa.C.S.A. § 401(d) provides:
      (d) In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:
      (1) The length of the marriage.
      (2) Any prior marriage of either party.
      (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.
      (4) The contribution by one party to the education, training, or increased earning power of the other party.

        (5) The opportunity of each party for future acquisitions of capital assets and income.
      (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
      (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
      (8) The value of the property set apart to each party.
      (9) The standard of living of the parties established during the marriage.
      (10) The economic circumstances of each party at the time the division of property is to become effective.
      23 Pa.C.S.A. § 501(b) provides:
      (b) In determining whether alimony is necessary, and in determining the nature, amount, duration, and manner of payment of alimony, the court shall consider all relevant factors including:
      (1) The relative earnings and earning capacities of the parties.
      (2) The ages, and the physical, mental and emotional conditions of the parties.
      (3) The sources of income of both parties including but not limited to medical, retirement, insurance or other benefits.
      (4) The expectancies and inheritances of the parties.
      (5) The duration of the marriage.
      (6) The contribution by one party to the education, training or increased earning power of the other party.
      (7) The extent to which it would be inappropriate for a party, because said party will be custodian of a minor child, to seek employment outside the home.
      (8) The standard of living of the parties established during the marriage.
      (9) The relative education of the parties and the time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment.
      (10) The relative assets and liabilities of the parties.
      (11) The property brought to the marriage by either party.
      (12) The contribution of a spouse as homemaker.
      (13) The relative needs of the parties.
      (14) The marital misconduct of either of the parties during the marriage; however, the marital misconduct of either of the parties during separation subsequent to the filing of a divorce complaint shall not be considered by the court in its determinations relative to alimony.

      . 23 Pa.C.S.A. § 404 provides: "In an order made under this chapter for the distribution of property the court shall set forth the reason or reasons for the distribution ordered.” Similarly, § 501(d) provides: "In an order made under this section the court shall set forth the reason or reasons for its denial or award of alimony and the amount thereof.”

      . One should perhaps say, "the former wife,” for the lower court also ordered the parties divorced, and that part of the order has not been challenged on appeal. However, it will be less cumbersome to refer simply to "the wife," who was plaintiff below and is appellant here, and "the husband,” defendant below and appellee here.

      . It is instructive to compare the master's recommended distribution with the lower court’s distribution; it is far more favorable to the wife. I haven’t discussed it, for what is before us is not whether the master but whether the lower court has committed an abuse of discretion. I do note that the lower court at no point explains why it rejected the master’s recommendations.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    462 A.2d 1362
    COMMONWEALTH of Pennsylvania v. Leroy RICHMOND, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1983.
    Filed July 8, 1983.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

Appellant raises a solitary issue on this appeal; he avers that the trial judge committed reversible error by his refusal to include certain requested questions in the voir dire of the veniremen. A close and careful scrutiny of the record reveals no such error by the trial judge. Hence, we affirm.

The events which resulted in the instant prosecution occurred on February 6, 1981. The victim was entering her Philadelphia apartment in the early evening hours on that date when appellant forced his way inside. After appellant produced a gun, the victim quickly surrendered her cash and offered him her jewelry in exchange for her life. Appellant accepted the cash and then instructed the victim to “get undressed and go to the bed.” The victim remained calm and managed to engage appellant in conversation for a short while. In the interim, a neighbor overheard the victim’s pleas and summoned the police. Upon their arrival, appellant was observed with his arm around the victim’s neck, attempting to escape. He was quickly apprehended, however, as he fled through the rear door.

As a result of this incident, appellant was charged with the crimes of attempted rape, burglary, robbery, and possessing an instrument of crime. Following a trial by jury, a defense demurrer to the charge of attempted rape was sustained. Appellant was convicted on the remaining charges and was sentenced to a total of nine to eighteen years incarceration, following the denial of timely post-trial motions.

As stated above, appellant’s arguments on this appeal are limited to the voir dire process. Appellant asserts that the trial court deprived him of his right to a fair trial before an impartial jury by refusing to ask prospective jurors a series of questions submitted by defense counsel. Appellant complains that the trial judge failed to adequately explore certain fundamental issues which may have highlighted any bias or prejudice harbored by the veniremen, specifically, racial prejudice, police credibility, and the presumption of innocence.

It is axiomatic that the paramount purpose of the voir dire system is the assemblage of “a competent fair, impartial, and unprejudicial jury.” Commonwealth v. Davis, 282 Pa.Super. 51, 54, 422 A.2d 671, 672 (1980); Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977). In furtherance of that goal, possible racial prejudice of a prospective juror may be an appropriate subject of interrogation by the trial judge if of particular relevance to the case. Commonwealth v. Christian, 480 Pa. 131, 389 A.2d 545 (1978); Commonwealth v. Futch, 469 Pa. 422, 366 A.2d 246 (1976); Commonwealth v. Brown, 464 Pa. 625, 347 A.2d 716 (1975).

Although the defendant is vested with the right to explore racial bias possessed by a venireman, this right is not without limits. The trial judge is not required to put the question in any particular form, or to ask any specific questions on the subject, merely because requested to do so by the defendant. Commonwealth v. Boone, 286 Pa.Super. 384, 428 A.2d 1382 (1981).

Nevertheless, appellant insists that the lower court erred because it did not propound a question to the potential jurors in the exact form submitted by the defense. The following question was rejected by the trial judge:

“Would you, or do you, get upset or take special note when you see a white girl and a black man walking together; talking together; holding hands?”

Instead, he modified the question and queried the veniremen:

“As you see, the defendant is a black man. I understand that the victim was a white girl. Let me ask you this question: Would anyone here get upset or take special notice if you see a white girl and a black man together either walking or talking together?”

Appellant argues that the trial court’s deletion of the phrase “holding hands” rendered the question impotent to discern those prospective jurors whose racist sentiments would prevent them from ruling objectively upon charges of sexual offenses.

In support of his argument, appellant refers us to Commonwealth v. Brown, supra. Therein, a black male was charged with forcible rape of a white victim. The Pennsylvania Supreme Court ruled that the lower court committed reversible error by refusing to ask the veniremen the identical question under discussion herein. Justice O’Brien, writing for the court, opined, “[t]he question was designed to elicit the prospective jurors’ bias or prejudice concerning black-white relationships which, if shown, would subject them to disqualification.” Id. 464 Pa. at 629, 347 A.2d at 718.

However, neither that court nor this court has ever held that any endeavor to discover racial bias must be in any particular form or else fail in that regard. The Brown court made no mention of any other questions included by the trial judge in his voir dire examination which would uncover racial prejudice. We can only conclude that, in the absence of the challenged question, no other attempt was made to determine the impartiality of the potential jurors with respect to the racial issue. Thus, the Supreme Court found that Brown had been denied due process of law.

The same question was once before the subject of an appeal to this court in Commonwealth v. Boone, supra. Therein, the prosecution involved the rape of a white victim by a black defendant. The trial judge refused to present to the veniremen the question concerning people of different races holding hands. In contrast to Brown, however, the lower court in Boone did ask an additional question which sought to ferret out the existence of racial prejudice among the veniremen. We observed that the second question submitted by appellant and asked by the trial judge was adequately designed to disclose any possible racial prejudices that the veniremen might have. Commonwealth v. Boone, supra, 286 Pa.Superior at 388, 428 A.2d at 1384. As we stated above, the trial judge is not required to frame the questions relating to racial prejudice in any exacting fashion. The scope of the voir dire questions remains within the discretion of the trial judge and will not be reversed absent a flagrant abuse of that discretion. Commonwealth v. Futch, supra.

As we pointed out above, the trial judge in the case at bar did pose a question to the potential jurors on the subject of racial bias. He then further asked:

“Is there anyone here who gets particularly upset to such a degree that it would interfere with their judgment of the facts?”

This question, although stated in very general terms, provided those potential jurors who only became offended when confronted with sexual crimes between races with an opportunity to reply. Since no one did, we find no error. Rather, we are persuaded that the lower court protected appellant’s due process rights and assured him of a fair, impartial, and unprejudiced jury through his supervision of the voir dire examination.

Appellant also contends that the voir dire was inadequate in light of the trial court’s failure to ask the following question as requested by the defense:

“Would you be more likely to believe the testimony of a police officer than the testimony of a civilian witness, merely because of the officer being a policeman?”

While the trial judge did not adopt the exact language of the above question, and as we have seen, he is not bound to do so, he did confront the veniremen with a question addressed to the issue of witness credibility.

THE COURT:
“Now, under our system all witnesses are equal, it makes no difference who that witness is, whether it is a policeman, a woman, a bank president, a street cleaner, a butcher or a baker, nobody has a right to be believed simply because of what he does in life or what he may own. What you do is you listen to that person testify on the stand and you fit in that which you hear with everything that you know about the case. You call upon all your life’s experiences. You are using your common sense.
Only then do you decide what you will accept and what you will reject.
Now, is there anyone here who would have trouble with that concept, that all witnesses start out as equals? Anybody?”

Since none of the prospective jurors responded affirmatively to this question, we are confident in believing that the empanelled jury was free from any biases in favor of any particular class of witnesses. This contention cannot, therefore, be asserted meritoriously.

Finally, as to appellant’s last attack on the voir dire process, we are similarly unconvinced. Appellant submitted questions on the presumption of innocence and the privilege against self-incrimination which were not proposed to the potential jury. However, the trial judge committed no error in this regard. It is well-settled that voir dire questions encompassing legal principles such as the above are improper. Commonwealth v. Kingsley, 480 Pa. 560, 391 A.2d 1027 (1978); Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977); Commonwealth v. Bright, 279 Pa.Super. 1, 420 A.2d 714 (1980). This is particularly so where, as in this case, the trial court did inquire about the veniremen’s ability to accept and follow the law. The trial judge received no response when he queried,

“Now is there anyone here who for moral, religious or philosophical reasons could not take the law from the Court and apply it to the facts as you judge them to be?”

Moreover, the trial judge instructed the jury both in his opening remarks and in his final charge on the areas raised by appellant in his proposed voir dire questions. We have long held that correct and thorough instructions to the jury obviate the need to cover those areas in the voir dire examination. Commonwealth v. Perea, 252 Pa.Super. 272, 381 A.2d 494 (1977). Thus, we find no abuse of discretion present in the instant case.

Judgment of sentence affirmed.

      . Herein, the subject of racial prejudice arose because appellant was a black male accused of various offenses against a white victim.

      . The question propounded by the trial judge was:

        "The defendant in this case, Johnnie Boone, is black. Would this fact concerning his race in any way interfere with your ability to give him a fair trial?”

      . Assuming arguendo, that it was error for the trial judge to refuse to investigate sexually motivated racial prejudice, we find it to be harmless in light of the fact that the trial court sustained a demurrer to the charge of attempted rape.


author: McEWEN, Judge: JOHNSON, Judge,

text:
    462 A.2d 1366
    COMMONWEALTH of Pennsylvania v. David J. FISHER, Appellant. COMMONWEALTH of Pennsylvania v. Robert W. FISHER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1981.
    Filed July 8, 1983.

      Alan Berman, Pittsburgh, submitted a brief on behalf of appellants.
    Kernel Alexander Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER, CAVANAUGH, BROSKY, McEWEN, BECK and JOHNSON, JJ.
   McEWEN, Judge:

Each of the two appellants brings to this court a direct appeal from the judgments of sentence imposed after they were each found guilty of violations of the Controlled Substance, Drug, Device and Cosmetic Act. We affirm.

Pittsburgh police applied for and were issued a search warrant for the residence of appellants at 913 Southside Avenue in Pittsburgh on January 25, 1978, after they received information from an unnamed informant that a man by the name of Fisher was engaged in the sale of large quantities of marijuana and was expecting to receive a large shipment late in the evening on January 25, 1978. Seven members of the Narcotics Division of the Pittsburgh Police Department took part in the execution of the search warrant on January 27, 1978 at approximately 11:30 a.m. During the course of the search of the suite of rooms occupied by appellant Robert Fisher, his wife and child and appellant David Fisher, the younger brother of Robert Fisher, police seized in excess of nine pounds of marijuana in addition to various items of drug paraphernalia. Appellant Robert Fisher admitted that the nine one pound bags that were found in the combination living/bedroom he occupied with his wife belonged to him. The police found, in the bedroom where the clothes of David Fisher were located, 160 grams of marijuana in a total of ten individually wrapped packets together with drug paraphernalia, including a small scale and various brands of cigarette papers as well as $540.00 in cash and a slip of paper characterized as an “owe sheet”. Appellants were arrested and charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act.

After a non-jury trial before the learned Judge Loren Lewis, appellants were each ultimately convicted of possession of and possession with intent to deliver controlled substances (marijuana) and sentenced.

Appellants argue: (1) that the information contained in the search warrant affidavit did not contain sufficient facts from which the magistrate could conclude that there was probable cause to believe contraband was on the premises to be searched; (2) that the search warrant did not contain sufficient facts from which the magistrate could conclude that the informant was credible or his information reliable; and (3) “that the court erred in finding that the magistrate discharged his constitutional duty of neutrality and detachment in determining to issue a search warrant where the application ... contained obvious, serious and material discrepancies of fact on its face.” Appellant David Fisher, individually, argues that the circumstantial evidence upon which the Commonwealth relied was insufficient to establish beyond a reasonable doubt that he possessed the marijuana seized with the intent to deliver.

The thrust of the initial argument of appellants is that the first prong of the Aguilar/Spinelli two prong test for determining the validity of affidavits of probable cause in search warrants was not met because the affidavit did not contain sufficient underlying circumstances and facts from which the magistrate could independently conclude that there was probable cause to believe contraband would be found on the premises to be searched. The text of the affidavit of probable cause states:

Affiant has received information from a confidential reliable informant, that narcotics can be found in the above residence. Informant also states that during the week of Jan. 9, 1978 he was with a acquaintant (sic) in the above residence and did observe the sale of 2 lb. of marijuana by Mr. Fisher, to the acquaintant.
Informant further states that he again was in the residence on the date of Jan. 25, 1978, with the acquaintant, at which time the acquaintant requested 2 lb. of marijuana from Mr. Fisher, who stated that at this time he had only one lb. and that was sold, but he (Mr. Fisher) would have 20 lbs. delivered to him late in the evening of Jan. 25, 1978.
This information was relayed to the detectives, by the informant on the date of Jan. 24, 1978 at approx. 8:30 p.m.
Informant has proven to be reliable in the past with information that had led to the arrest of the following persons, for violation of the narcotics laws. (Louis Esposito 1/6/78 Marijuana pills, Emmett Rowlett 11/4/77 Heroin/Demeral [sic], Thomas Warren 12/12/77 Marijuana/Cocaine.)

The basis for the initial claim arises in part from the first paragraph of the affidavit where the affiant related that, on January 9, 1978, the informant was in the premises at 913 Southside Street with an acquaintance and that he observed Mr. Fisher sell two pounds of marijuana to the acquaintance. Appellants argue that even if a sale of controlled substances, namely, marijuana, had actually taken place seventeen days prior to the issuance of the search warrant, that information by itself is so remote in time from the time of the application that it is stale and thereby insufficient to sustain a finding of probable cause to believe that contraband would be present on the premises at the time of the application for the warrant.

Appellants further argue that the second paragraph of the affidavit—in which the informant indicated that Mr. Fisher stated that he had possession of only one pound of marijuana that had already been sold but that he would have twenty pounds delivered to him late in the evening of January 25, 1978—did not provide sufficient facts to establish or permit the inference that any marijuana would be found on the premises on January 26 or 27, 1978. Appellants urge in support of this argument that the informant did not say (1) “that he (Fisher) sold even one pound on January 25, 1978” or (2) “that even one pound was in the house” or (3) “that the twenty pounds were to be delivered to Fisher at the house.” Hence, they argue that there were insufficient facts set forth in the affidavit to conclusively establish the nexus between the evidence to be seized and the place to be searched.

We are not persuaded by either argument. The affidavit reveals that the informant witnessed the purchase of two pounds of marijuana by an acquaintance in the residence of appellants designated in the application as 913 Southside Avenue, Pittsburgh during the week of January 9, 1978. While this information, alone, might arguably be considered too stale to provide probable cause to believe that marijuana would be present on the date the warrant was executed, the affidavit further indicates that the informant was again at the same residence on January 25, 1978, with the acquaintance who again requested two pounds of marijuana from Mr. Fisher. The affidavit reveals that Fisher stated that he had only one pound at that time, that the particular pound had already been sold but that he would have an additional twenty pounds delivered to him late in the evening on that same day, January 25, 1978. Thus, when the two paragraphs in the affidavit are read in conjunction with each other in a common sense and nontechnical fashion, United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965); Commonwealth v. Forster, 253 Pa.Super. 433, 385 A.2d 416 (1978); Commonwealth v. Matthews, 446 Pa. 65, 71, 285 A.2d 510, 512 (1971), it would appear that even though the location of the amount of marijuana to be delivered was not specified, it was highly reasonable to conclude that the marijuana would be located and available for delivery in the same premises as it had been on the prior occasion, especially in light of the obvious absence of mention of any alternative location for the potential delivery. See e.g., Commonwealth v. Yucknevage, 257 Pa.Super. 19, 390 A.2d 225 (1978); Commonwealth v. Forster, supra; Commonwealth v. Frye, 242 Pa.Super. 144, 363 A.2d 1201 (1976).

As this court stated in Commonwealth v. Forster, supra, 253 Pa.Super. at 437-438, 385 A.2d at 418:

The law does not require that the information in a warrant affidavit establish with absolute certainty that the object of the search will be found at the stated location, nor does it demand that the affidavit information preclude that the sought after article is not secreted in another location.
We must further be mindful 'that only the probability, and not a prima facie showing of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223 [228], 13 L.Ed.2d 142 (1964); that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056 [1062], 18 L.Ed.2d 62 (1967); that in judging probable cause magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741 [745], 13 L.Ed.2d 684 (1965); and that their determination of probable cause should be paid great deference by reviewing courts. Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725 [735-736], 4 L.Ed.2d 697 (1960).’ Spinelli, supra, 393 U.S. 410 at 419, 89 S.Ct. 584, at 590, 21 L.Ed.2d 637 at 645. Commonwealth v. Frye, 242 Pa.Super. 144, 148, 363 A.2d at 1201, 1203 (1976).

We conclude that the search warrant affidavit contained sufficient facts to provide a reasonable and logical basis to believe that marijuana would be found in the residence of appellants at the time of the application for and execution of the search warrant.

Appellant next argues that the mere allegation in the affidavit of probable cause that the informant was reliable and that information he had provided had led to these prior arrests alone, without resulting convictions, was not sufficient to permit a conclusion that the informant was credible or his information reliable in conformity with the second prong of the two-prong test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We reject this argument. This precise issue was recently addressed in an en banc opinion, Commonwealth v. Prosdocimo, 308 Pa.Super. 187, 454 A.2d 84 (1982), in which we concluded that an assertion in an affidavit of probable cause for a search warrant that an informant had proved to be reliable in the past, together with the assertion that the informant provided information which led to the arrest of two specific individuals on certain dates within six months of the arrest at issue, was sufficient to meet the requirements of the second prong of the Aguilar test. The information here set forth in the affidavit of probable cause provides an even stronger indicia of the reliability of the informant since it establishes (1) that the information the informant has provided in the past has led to the arrest of three individuals (2) whose names are specifically provided (3) together with the specific types of narcotics that they possessed at the times of their arrests. In addition, the affidavit established that all three of the prior arrests were made between twenty days and two and one-half months prior to the instant arrest, a fact that would preclude, under ordinary circumstances, an allegation that the information provided had led to convictions. Where, as the record here reflects, an informant is “new” and his information has not yet led to convictions but has resulted only in arrests, due to ordinary time constraints in bringing an accused to trial, there is no requirement that we find as a matter of law that the informant is unreliable. As we stated in Prosdocimo, supra; “[WJhile past reliability is most often established through a showing of convictions which resulted from information supplied by the informer, there is no logical reason for mandating that all information lead to convictions before reliability is established.” Id., 308 Pa.Superior at 199, 454 A.2d at 90, quoting Commonwealth v. Benjamin, 260 Pa.Super. 1, 6-7, 393 A.2d 982, 985 (1978); Commonwealth v. Archer, 238 Pa.Super. 103, 109, 352 A.2d 483, 486 (1975). Benjamin presented a situation analogous to the one we here address and, in Prosdocimo, we quoted therefrom with approval: “Appellee [Benjamin] makes much of the fact that three named prior arrests did not result in convictions until after appellee’s arrest. Our research, however, uncovers no case which holds that an informant must have provided information in the past that led to arrests and convictions. Nor do we find a requirement that any given number of arrests and convictions is necessary.” Id. 308 Pa.Super. at 199, 454 A.2d at 90, quoting Benjamin, supra 260 Pa.Super. at 6, 393 A.2d at 985. Rather, “[t]he essential fact is that the informant gave prior information implicating other persons in criminal activity, which information proved to be correct.” Commonwealth v. Benjamin, supra,, 260 Pa.Superior at 7, 393 A.2d at 985. The informer here provided, within two and a half months prior to the affidavit we study, information that proved to be correct and led to the arrests of three named individuals for violations of the Controlled Substance, Drug, Device and Cosmetic Act, specifically possession of various enumerated controlled substances. Indeed, the reliability of the instant informant is clearly enhanced by the very fact of the number and recency of the arrests made on the information he provided. Thus, we here conclude that the affidavit contained sufficient facts to establish the reliability of the informant. See Commonwealth v. Prosdocimo, supra; Commonwealth v. Benjamin, supra; Commonwealth v. Archer.

Appellants further claim that the apparent inconsistency in the dates set forth in the second and third paragraphs of the affidavit were such that the magistrate, in the discharge of his duties of neutrality and detachment, should have rejected the affidavit as nonsensical and required the affiant to redraft it and, since he did not do so, we should declare the affidavit as well as the search warrant invalid. Appellant argues that the interpretation adopted by the suppression judge that construed the third paragraph to be the second and the second paragraph as the third went beyond a “common sense interpretation” and amounted to an interpretation totally at odds with the statements set forth in the affidavit. We do not agree with appellants that the internal inconsistency in the ordering of the paragraphs was so serious as to require the rejection of the application for the search warrant and find no basis to reject the conclusion of the learned Judge James R. McGregor serving as the suppression judge that the only reasonable way in which the affidavit could be read so that it made sense was to conclude that the second and third paragraphs were inverted inadvertently. As was stated in the United States v. Ventresca, supra:

When a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a common sense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or of marginal cases in this area should be largely determined by the preference to be accorded to warrants. Id., 380 U.S. at 109, 85 S.Ct. at 746, 13 L.Ed.2d at 689. (citations omitted)

Accord, Commonwealth v. Gelfont, 264 Pa.Super. 96, 399 A.2d 414 (1979), cert. denied, 444 U.S. 930, 100 S.Ct. 273, 62 L.Ed.2d 188 (1979); Commonwealth v. Forster, supra. Since the interpretation accorded the affidavit by the Common Pleas Court Judge was reasonable, we conclude that the magistrate, in approving the application for the search warrant, did not violate his constitutional mandate to serve as a neutral and detached arbiter of the existence of facts sufficient to constitute probable cause for the issuance of search warrants.

Finally, appellant David Fisher, individually, argues that the Commonwealth failed to present sufficient evidence to support his conviction of possession of marijuana with intent to deliver. We disagree.

The police found 160 gms. of marijuana and a total of ten individually wrapped packets located in the bedroom where appellant stored his clothing and was permitted to dress immediately after the execution of the search warrant. Nine of the baggies were found inside a green canvas bag that was located inside a chifforobe where appellant David Fisher stored his clothing. An additional individual plastic baggie was found in the same room inside another chest of drawers together with a cigar box containing various brands of cigarette papers, a small hand-type scale as well as $540.00 in cash together with a small slip of paper which was described as an “owe sheet” by police. That slip of paper contained names and “had marks on it for various amounts of monies.” (N.T. p. 51). When one of the arresting officers confronted David Fisher with the cash after he had been given his Miranda warnings, appellant stated that the cash “was not all dope money” but that part of it was social security money.

It is well established that all the facts and circumstances surrounding possession are relevant in making a determination of whether contraband was possessed with the intent to deliver. Commonwealth v. Hunt, 256 Pa.Super. 140, 147-149, 389 A.2d 640, 644 (1978), citing Commonwealth v. Santiago, 462 Pa. 216, 340 A.2d 440 (1975). Although David Fisher was charged with possessing 160 grams or about 5 ounces of marijuana, we are, nevertheless, persuaded that the circumstances surrounding that possession clearly allow an inference that the marijuana was possessed with the intent to deliver. The circumstances present in this case include (1) the fact that the marijuana found in the room was equally divided into a number of small plastic baggies customarily used in the packaging of marijuana for sale and stored inside a green canvas bag in the chifforobe where appellant’s clothes were located; (2) the fact that a small scale, commonly used in the weighing and preparation of marijuana for sale, was found in the chest of drawers in the same room; (3) the presence of various items of paraphernalia including a number of different brands of cigarette papers, roach clips and smoking pipes in the chest of drawers in the room; and, most significantly, (4) an “owe sheet” and a considerable amount of money which appellant implicitly admitted was, at least in part, “dope money”. Thus, we conclude that the evidence was clearly sufficient to allow the inference that appellant possessed the marijuana with the intent to deliver. See Commonwealth v. Hunt, supra; Commonwealth v. Cash, 240 Pa.Super. 123, 367 A.2d 726 (1976).

Judgments of sentence affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I respectfully dissent. The majority holds that the first prong of the Aguilar/Spinelli test was met by the search warrant affidavit in the instant case. I disagree.

The affidavit stated:

Affiant has received information from a confidential reliable informant, that narcotics can be found in the above residence. Informant also states that during the week of January 9, 1978 he was with an acquaintant [sic] in the above residence and did observe the sale of 2 lb. of marijuana by Mr. Fisher, to the acquaintant.
Informant further states that he again was in the residence on the date of January 25, 1978, with the acquaintant, at which time the acquaintant requested 2 lb. of marijuana from Mr. Fisher, who stated that at this time he had only one lb. and that was sold, but he (Mr. Fisher) would have 20 lbs. delivered to him late in the evening of January 25, 1978.
This information was relayed to the detectives, by the informant on the date of January 24, 1978 at approx. 8:30 p.m.
Informant has proven to be reliable in the past with information that had led to the arrest of the following persons, for violation of the narcotics laws. (Louis Esposito 1/6/78 Marijuana pills, Emmett Rowlett 11/4/77 Heroin/Demeral [sic], Thomas Warren 12/12/77 Marijuana/Cocaine.)

The first prong of the Aguilar/Spinelli test is an explanation of the “underlying circumstances” from which the informant received information and reached the conclusion that fruits of a crime would be located in the place to be searched. Commonwealth v. Reisinger, 252 Pa.Super. 1, 380 A.2d 1250 (1977). See also Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971).

When an issuing authority has found probable cause to issue a search warrant, this court should not invalidate that warrant by interpreting the affidavit in a hypertechnical rather than a commonsense manner. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Rather, we must test and interpret the affidavit in a realistic fashion, resolving doubtful or marginal cases by the preference accorded to warrants. Commonwealth v. Nycz, 274 Pa.Super. 305, 418 A.2d 418 (1980). We must also afford great deference to the issuing authority’s determination of probable cause. Spinelli v. United States, supra. See also Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981).

Unfortunately, my review of the instant affidavit cannot justify its validity through any commonsense analysis.

At the suppression hearing, the suppression judge made the following observations, on the record:

... I am satisfied that there is enough information for the Magistrate to believe that this informant was reliable because of the arrests in a short period of time on related matters. I am not concerned at all about his reliability. The only thing that does concern me, and this comes from the face of it, as far as I’m concerned, is the 24th date of January. And the only reasonable reading, if we are to believe the affidavit, is that paragraph should have been Paragraph 2 and not Paragraph 3. That’s the only way that it makes any common-sense reading, because it’s impossible for me to tell you what’s going to happen tomorrow at 8:30 this evening. That’s impossible. So the only way that whole thing makes sense at all is that we put that paragraph in as Paragraph No. 2, that that information was conveyed to the detectives, the information about the 9th sale was conveyed to the detectives on the 24th. So, that’s the only reasonable reading you can give it. I don’t think that’s a strained reading at all. You know, when you first read it, why, you have to be troubled by it.

Notes of Testimony, August 25, 1978, p. 28 (emphasis added).

On the very same issue, the trial judge, in his opinions written pursuant to Pa.R.A.P. 1925(a), supported his denial of post-trial motions with respect to the validity of the search warrant as follows:

With respect to the Application, defendant also complains that serious discrepancies of fact appear on its face. He refers to reference in the body of the Application to January 25, 1978, as the date when the informant was on the premises and the additional reference that the foregoing information was given to the detectives on January 24, 1978, the day before. No doubt this discrepancy was the result of a typographical error. A reasonable, commonsensible reading of the Application must lead to this conclusion.

As I read the suppression hearing transcript and the opinions filed pursuant to Rule 1925(a), I find it likely that two judges of the common pleas court examined the same application but arrived at somewhat different conclusions. On the one hand, the suppression court felt that the only way the application made sense was to invert the second and third paragraphs. On the other hand, the post-trial motion judge concluded that the discrepancy “was the result of a typographical error.”

While I have no difficulty in agreeing with the majority that a “commonsense” approach must be applied in reviewing an application for a search warrant, the fact that two different trial court judges arrived at different conclusions, while each was applying their “common sense,” causes me to pause. I assume that our freedom to apply a commonsense rationale when reviewing the action of an issuing magistrate entails a belief that ordinary men would agree on the interpretation to be given a document under review.

The majority finds “no basis to reject the conclusion of the [suppression judge]” and further determines that the interpretation accorded the affidavit by the suppression judge was “reasonable.” The majority stops short of asserting that the idea of inverting two paragraphs in a sworn affidavit comports with its own “common sense.” Nor does the majority seek to explain the conclusion of the trial judge which, arguably, is at variance with that of the suppression judge on the proper interpretation of the affidavit.

The second paragraph of the affidavit states that the informant had been in Appellant’s residence on January 25th. The third paragraph states that this information was relayed to the affiant on January 24th. I agree with the suppression hearing judge that such a chronology is impossible. As it stands, it cannot be said to be susceptible to any single, commonsense interpretation.

The mere fact that an obvious error exists is not fatal to this affidavit until one acknowledges the importance of the error. If the third paragraph is simply deleted, then the affidavit fails to inform the issuing authority as to when the information was obtained from the informant. On the other hand, if the second paragraph is deleted, then the information that remains is deficient, as it is too remote in time to support the issuance of a warrant. See Commonwealth v. Hagen, 240 Pa.Super. 444, 368 A.2d 318 (1976).

I am not prepared to accept the majority’s suggestion that the magistrate was compelled to either accept the application, as submitted, or “require the affiant to redraft it.” In the first place, nothing would have prevented the affiant from merely correcting the date in the second paragraph to show the presence of the informant in the suspect’s residence on January 24th. This could have been done and the application again tendered to the magistrate. But more importantly, I view the responsibility of the issuing magistrate to be limited to finding probable cause prior to the issuance of any search warrant. As an issuing magistrate, his duty does not include insuring that the arresting officials are in no way inconvenienced as they seek to perform their own duties.

The issue before our court should not be whether, applying some balancing test, the magistrate’s action was reasonable, but rather whether the affidavit, as submitted, presented sufficient facts to provide a reasonable and logical basis to believe that marijuana would be found in Appellant’s residence at the time of the application for and execution of the search warrant. Aguilar, supra.

Although I do not view the error in the affidavit to be as severe as that found in Commonwealth v. Purcell, 251 Pa.Super. 545, 380 A.2d 914 (1977), I believe it more serious than the technical errors determined not to be fatal in the affidavits in Commonwealth v. Swint, 256 Pa.Super. 169, 389 A.2d 654 (1978) and Commonwealth v. Chinea, 246 Pa.Super. 494, 371 A.2d 944 (1977).

Since I am unable to conclude that any issuing authority could find probable cause from the statements constituting the affidavit, as they appear, I must respectfully dissent. See Pa.R.Crim.P. 2003(a).

      . 35 P.S. § 780-101 etseq. Appellant David Fisher was found guilty of possession of and possession with intent to deliver controlled substances and was sentenced, on December 4, 1978, to two years probation on each count with sentences to run concurrently. Appellant Robert Fisher was charged with seven counts of violations of the Controlled Substance, Drug, Device and Cosmetic Act and was found guilty of six of the counts. Judgment on four of these six counts was subsequently arrested upon disposition of the post-trial motions and he was sentenced on the remaining two counts of possession and possession with intent to deliver controlled substances (marijuana) to sixteen to thirty-two months in prison.

      . See Note 1, supra.

      . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

      . Commonwealth v. David J. Fisher, No. CC 7800885A, Common Pleas, Allegheny County, Opinion of Lewis, J., filed June 21, 1979, at page 3 (emphasis added). Same paragraph, Commonwealth v. Robert W. Fisher, No. 7800886A, Id., at page 3.


author: BROSKY, Judge:

text:
    462 A.2d 1374
    COMMONWEALTH of Pennsylvania v. William N. CORLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1983.
    Filed July 15, 1983.
    Petition for Allowance of Appeal Granted Feb. 8, 1984.

      L. Carter Anderson, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BROSKY, CIRILLO and LIPEZ, JJ.
   BROSKY, Judge:

This appeal is from the denial of a Post Conviction Hearing Act (PCHA) petition. Appellant argues that his arrest by security officers was illegal and that, consequently, the evidentiary fruits of that arrest would have been suppressed had the issue been raised pre-trial. His PCHA petition requested either discharge or a new trial on the grounds that he was denied ineffective assistance of counsel in that trial counsel withdrew a suppression motion. The PCHA petition was denied and we affirm.

Facts

The factual situation of appellant’s arrest is as follows. Appellant robbed an individual at gunpoint in the men’s room of a department store and then shot the victim in the cheek. Robert Greer, a security investigator for the store, received some information over his radio and then observed appellant running toward the main escalator. Greer followed appellant out of the store. He saw appellant with a gun in his hand and observed appellant put it in his jacket pocket. Appellant was then arrested by Greer and a security guard from a second department store. The jacket and the gun which it contained was taken from appellant. Greer took appellant to a detention room in the security office of his department store. In the detention room, a store detective removed a wallet from appellant, which was later identified as the victim’s. After all of the above events, Philadelphia police arrived and took appellant into custody.

Prior to the trial, counsel filed a motion to suppress the evidence obtained as a result of the arrest. The motion alleged that the arrest was illegal, lacking probable cause. However, at the suppression hearing, counsel withdrew the motion and stipulated that there had been probable cause for the arrest. At the PCHA hearing, trial counsel testified that he had withdrawn the motion and stipulated that there was probable cause because he knew what information the arresting person was given over his radio. By the time of the PCHA hearing, three and a half years later, trial counsel could not recall what that information was.

PCHA Petition

The issue abandoned with the suppression motion withdrawal and revived in the PCHA petition is the same: whether there was lacking the type of probable cause necessary for a citizen’s arrest. If the arrest was illegal, then the evidentiary fruits of that arrest must be suppressed. Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

The PCHA petition is the first time appellant has been represented by counsel other than the counsel who represented him at the suppression hearing. The issue before us is, therefore, properly preserved. Commonwealth v. Lewis, 463 Pa. 180, 344 A.2d 483 (1975).

The task before us is to determine whether counsel’s withdrawal of the suppression motion “had some reasonable basis designed to effectuate his client’s interest.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599 at 604, 235 A.2d 349 at 352 (1967). One method of meeting this test is to find that the issue not raised was meritless. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Thus, in order to rule on appellant’s claim of trial counsel ineffectiveness here, we must evaluate the merits of the withdrawn suppression motion. Namely, if it had not been withdrawn, should it have been granted?

In pursuing this enquiry, we will engage in a two-step analysis. First, are there any legal consequences to a finding that this citizen’s arrest was illegal? (We hold that there are.) Second, was this arrest illegal? (We find that it was not.)

Legal Consequences of an Illegal Arrest

It is long-established law that the fruits of an illegal search made by an individual who was not acting for the state are not suppressible under the exclusionary rule. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Commonwealth v. Dingfelt, 227 Pa.Super. 380, 323 A.2d 145 (1974).

Unlike the private searcher who can be acting for his own ends, one making a citizen’s arrest is, definitionally, acting under the authority of the state. The legitimating factor which distinguishes his actions from an unprivileged battery or kidnapping is the state recognition and sanction of this act. Of course, in any case which would come before the criminal courts, the police and prosecution would also have ratified the citizen’s arrest by taking the arrestee into custody and by seeking to use any evidence that was the fruit of that arrest. Since the very occurrence of the act is freighted with the authority of the state, if that act is committed improperly, the fruits of that arrest must be suppressed.

A case recently decided by the' U.S. Supreme Court reviews and restates the elements necessary for “state action.”

Our cases have accordingly insisted that the conduct allegedly causing the deprivation of a federal right to be fairly attributable to the state. These cases reflect a two-part approach to the question of “fair attribution.” First, the deprivation must be caused by the exercise of some right or privilege created by the state ... Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because ... his conduct is otherwise chargeable to the state.

Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S.Ct. 2744 at 2754, 73 L.Ed.2d 482 (1982).

These conditions are met here.

The test has also been set out by the U.S. Supreme Court in a criminal context.

The critical factor, as the United States Supreme Court has stated, “is whether [the private individual] in light of all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or agent of the state ...” Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564 (1971).

Commonwealth v. Borecky, 277 Pa.Super. 244 at 249, 419 A.2d 753 at 755-6 (1980).

Again, it is clear that in a citizen’s arrest, legitimated by state law, and ratified by the police and prosecution, the arresting person is an “instrument” of the state.

To hold, as we do here, that the fruits of an illegal arrest by an individual must be suppressed, is not inconsistent with the rule stating that the fruits of an illegal search and seizure of things by an individual are not suppressible. This is so because an arrest by an individual is necessarily undertaken under the authority of the state; while a search and seizure of things may, of course, be carried out for personal purposes, without such authority.

This holding acts to fill a gap in the law, rather than to contradict established law. The usual case dealing with private actors and the Fourth Amendment involves searches and seizures of things; not the seizure of a person. A few cases have dealt with the suppressibility of the fruits of an illegal citizen’s arrest.

A 1949 case out of Kentucky, Thacker v. Commonwealth, 310 Ky. 702, 221 S.W.2d 682, held that a person making a citizen’s arrest “is acting for and on behalf of the sovereignty.” Therefore it followed that he would be subject to Kentucky’s constitutional provision which is parallel to the Fourth Amendment of the Federal Constitution. Thacker, supra, at 683.

The legality of a citizen’s arrest was examined by this court recently. Commonwealth v. Andrews, 285 Pa.Super. 100, 426 A.2d 1160 (1981). The arrest was found to have been legal; but there would have been no purpose to that enquiry and finding if legal consequences did not flow from the finding. The only apparent legal consequence of illegality of the arrest would have been the suppression of the fruits of the arrest. This was not made explicit in Andrews, but here we make it so.

We hold, as a matter of federal constitutional law, that the fruits of an illegal citizen’s arrest are subject to the full action of the Fourth Amendment and to the exclusionary rule. On separate, independent and adequate state grounds, applying Article 1, Section 8 of the Constitution of this Commonwealth, we hold that the same results also obtain.

Illegality of Arrest

We now turn to the core requirement of appellant’s case, the illegality of the arrest. Such illegality would be due to not meeting the requirements of a proper arrest by an individual. In citizen’s arrest cases, the requisite standard of probable cause is considerably higher than that for arrests made by the police.

The standard of probable cause to be met in a citizen’s arrest for a felony cannot be met here. Greer neither observed the commission of a felony nor does the record establish that he knew of the commission of a felony. The only potentially criminal act he had knowledge of was that appellant was holding a handgun. Possession of a gun does not, in itself, rise to the level of a felony. 18 Pa.C.S.A. § 6108. If, in addition to this observation, Greer had learned other facts about the robbery it is possible that an arrest for that felony would have been proper. But we cannot decide that as there is no evidence on the record regarding what information Greer received on his radio.

The only other basis for legitimating the citizen’s arrest made by Greer is a citizen’s arrest for a misdemeanor. It is uncontradicted that Greer did see appellant holding a gun in his hand on a center city Philadelphia street. There is no doubt that this could constitute a misdemeanor, a breach of the peace. What is not clear is whether a citizen’s arrest can be made for a misdemeanor.

The proper focus here is on Pennsylvania state law regarding citizen's arrests.

If the arrest is legal under state standards and not violative of federal constitutional rights the arrest and the search incidental thereto is valid. And in the absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity. United States v. DiRe, 332 U.S. 581, 589, 68 S.Ct. 222 [226] 92 L.Ed. 210 (1948); Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623 [1630] 10 L.Ed.2d 726 (1963).

Montgomery v. U.S., 403 F.2d 605, 608 (8th Cir., 1968).

There is a difference of opinion within this state on the propriety of a citizen’s arrest for a non-felony. The common law rule would allow an arrest such as the one made here.

Arrest for a misdemeanor constituting a breach of the peace was also permitted [at common law] when immediate apprehension was necessary to preserve or restore public order.

Note, the Law of Citizen’s Arrest, 65 Colum.L.Rev. 502, 503 (1965). See also Fisher, Laws of Arrest, 125 (1967), and Carroll v. U.S., 267 U.S. 132 at 157, 45 S.Ct. 280 at 286, 69 L.Ed. 543 (1925).

This traditional, common law view was repeated, albeit in dicta, in Samuel v. Blackwell, 76 Pa.Super. 540, 547 (1921). Later, a Common Pleas Court held that under this rule a private citizen could make a citizen’s arrest for driving under the influence on a public highway if such a breach of the peace occurred in his presence. Commonwealth v. Giles, 14 Adams L.J. 34, 57 D & C2d 13 (1972).

However, this line of cases was contradicted, again in dicta, by a 1964 Superior Court opinion, In re Stanley, 204 Pa.Super. 29, 201 A.2d 287 (1964). “A constable’s authority to ... arrest on sight for breach of the peace ... is not conferred upon private citizens ...” Stanley, supra, 204 Pa.Superior at 32, 201 A.2d 289.

This statement from Stanley was quoted, yet again in dicta, in Commonwealth v. Gregg, 262 Pa.Super. 364, 366, 396 A.2d 797, 798 (1979). The opinion added that, “A lay person, i.e., a person lacking police powers, can only effectuate an arrest when the same citizen personally observes a felony.” Id. In neither Stanley nor Gregg was this statement necessary for the disposition of the case. Nor was there any indication that the courts were emphasizing felony as opposed to a misdemeanor. Indeed, to the contrary, the facts in each case related more to the personal observation element than to the felony/misdemeanor distinction.

Thus, except for one Common Pleas case on point, and contradictory Superior Court dicta, there is no Pennsylvania law on this issue. We are, therefore, free to address the issue, free from binding precedential encumbrance.

In view of the foregoing, we hold that a citizen’s arrest can be made for a breach of the peace that is personally observed by the arrestor. Two policy considerations support this. First, it is desirable that citizens be encouraged to stop breaches of the peace. Second, it is unreasonable to put citizens at their peril in deciding, on the spur of the excited moment, which violations they observe are breach of the peace misdemeanors and which are felonies. Such an exercise might well tax the abilities of a learned member of the criminal bar or bench—it is certainly an unreasonable task to impose upon our citizenry. The citizen’s arrest of appellant was, therefore, not illegal.

Conclusion

Having found that appellant’s arrest was lawful, it follows that appellant’s suppression motion, based as it was on the illegality of the arrest, was meritless. Since appellant would not have prevailed on this issue even if the suppression motion had not been withdrawn, counsel cannot be said to have been ineffective for not proceeding with it.

The denial of the PCHA petition is consequently affirmed.

      . The information received by Greer is not established by the record.

      . After leaving Greer’s store, appellant briefly entered a second department store.

      . The testimony at the PCHA hearing was inconclusive as to whether appellant had been consulted by trial counsel about the withdrawal of this motion and whether the legal issue involved had been explained to him.

      . As the PCHA court noted in its opinion:
      There is a presumption that counsel's representation was competent. Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973). The burden of proving incompetency of counsel in a post conviction hearing act petition rests upon the defendant who makes such an assertion. Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976).

      . This is based on the sound reasoning that raising a meritless issue would not have had a "reasonable basis” to advance the client’s interests.

      . The wisdom of this rule has been called into question. See Burkoff, Not So Private Searches and the Constitution, 66 Cornell L.Rev. 627 (1981); Commonwealth v. Murray, 423 Pa. 37, 52, 223 A.2d 102, 110 (1966).

      . Commonwealth v. Cosby, 234 Pa.Super. 1, 335 A.2d 531 (1975).

      . The arrest of appellant occurred in a citizen’s arrest context.

      . As will be seen in the next section, in Pennsylvania this operates through the common law tradition as interpreted and modified by the courts of this Commonwealth.

      . On ratification generally, see Commonwealth v. Eshelman, 477 Pa. 93, 383 A.2d 838 (1978).

      . See also Jack v. Rhay, 366 F.2d 191 (9th Cir., 1966); U.S. v. Fannon, 556 F.2d 961 (9th Cir., 1977) (reversed by that Circuit en banc on an interpretation of the facts, not on a repudiation of the statement of law); and State v. Helfrick, 183 Mont. 484, 600 P.2d 816 (S.C., 1979).

      . Of course, states can choose to accord greater protection to the individual than is mandated under federal law. Cooper v. California, 386 U.S. 58, at 62, 87 S.Ct. 788 at 791, 17 L.Ed.2d 730 (1967).

      . We do not hold, either impliedly or in dicta, that knowledge of a felony he hadn’t witnessed would legitimate a citizen’s arrest. We simply do not reach this as such knowledge was not established to have been present here.

      . A recent case of this Court treated a related, but distinct, issue: the validity of a citizen’s arrest for a summary offense. Commonwealth v. Stahl, 296 Pa.Super. 507, 442 A.2d 1166 (1982) (Per O'Kicki, J., with two Judges concurring in the result). See Pa.R.Crim.P. 51. Judge O’Kicki wrote that a citizen’s arrest could not be made for a summary offense. Involving, as it does, a summary offense, Stahl is not on point with the issue before us—the validity of a citizen’s arrest for a breach of the peace misdemeanor.