author: HESTER, Judge:

text:
    595 A.2d 593
    COMMONWEALTH of Pennsylvania v. Troning Anthony LEWIS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1991.
    Filed July 23, 1991.
    Petition for Allowance of Appeal Granted Dec. 16, 1991.

      Frederick W. Ulrich and Wayne S. Melnick, Asst. Public Defenders, Harrisburg, for appellant.
    Joseph H. Kleinfelter, Asst. Dist. Atty., Harrisburg, for Com.
    Before TAMILIA, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Troning Anthony Lewis appeals from the July 25, 1990 judgment of sentence of four to ten years incarceration imposed by the Dauphin County Court of Common Pleas following his conviction by a jury of possession of cocaine with intent to deliver and conspiracy. In this appeal, which followed the trial court’s denial of appellant’s motion to modify sentence, appellant raises numerous assertions of trial error. We find no merit in appellant’s arguments; accordingly, we affirm.

At the suppression hearing, the Commonwealth called two witnesses, Officer John W. Ciupinski and Detective Willie Holland. Officer Ciupinski, an Amtrak Police officer for fourteen years and a former township police officer for two years, described his duties as including the patrol of the main line of Amtrak between Lancaster and Harrisburg. At the time of appellant’s arrest, Officer Ciupinski’s department recently had undertaken an interdiction program using a “drug courier profile.” In training for his assignment, Officer Ciupinski received a list of characteristics to identify suspected drug couriers. Those characteristics included: (1) individuals taking a train to a source city, such as New York; (2) payment for tickets in cash; (3) quick turnaround visits, i.e., making a return trip after staying only a brief time at the source city; (4) display of a large amount of cash; (5) exhibition of nervous or apprehensive behavior; and (6) lack of luggage or packages.

Approximately one week prior to September 22, 1989, a ticket agent reported to Ciupinski that two black males were at his ticket window, had paid cash for their tickets, and requested round-trip tickets to New York City. Also, the individuals informed the ticket agent that they were not concerned about a price penalty for an open return since they desired to go to New York and return as soon as possible. In paying for the tickets, the agent further observed the suspects utilize a large roll of bills. In addition, they did not carry any luggage with them. The suspects were pointed out to Officer Ciupinski who observed them board the train.

On the morning of September 22, 1989, the same ticket agent informed Officer Ciupinski that the same two men were at his window again and paid for two-round trip tickets to New York with a quick return. Officer Ciupinski observed appellant and a companion, Eric Bradley, and noticed that Bradley in particular appeared extremely apprehensive. The officer watched them board the train and decided to approach them on their return trip. Officer Ciupinski arranged with other plain-clothes officers, including Detective Holland, to meet the first train from New York later that day. Upon the train’s arrival, appellant and Bradley disembarked.

The plain-clothes officers approached appellant and Bradley as they entered the pedestrian bridge over the railroad tracks on their way to the main station and asked if both men would answer some questions. Appellant answered that he wished to speak to a lawyer. Detective Holland asked why appellant wished to do that when he was not even under arrest. Notes of Testimony (“N.T.”), 2/6/90, at 60. In response to further questions, appellant admitted that he traveled frequently to New York because he had to meet regularly with his probation officer after a weapons conviction. Bradley explained that he was visiting relatives in Harrisburg and gave an address number that did not exist. Detective Holland testified that Bradley backed away from the officers during questioning, and continually moved his hands around his waist.

At this point, the officers decided that a weapons search of both men was required for the officers’ safety since: 1) the suspects matched a drug courier profile; 2) the suspects’ answers were suspicious, especially in light of appellant’s prior conviction involving a firearm; 3) Bradley’s hand continually moved around his waist during questioning; and 4) Bradley appeared frightened when both of them were asked if they carried a firearm. The pat-down search revealed that appellant did not carry a weapon, but Bradley carried a handgun in his waistband concealed by his jacket. Both appellant and Bradley were placed under arrest for carrying a concealed weapon and conspiracy.

Police removed the two men to a private area in the station and gave them Miranda warnings. Appellant was searched incident to his arrest and a packet of cocaine was discovered inserted in his sock. During questioning, Bradley explained that he found the handgun on the train, and appellant admitted that both men purchased cocaine for $5,000 in New York and intended to sell it for $15,000 in Harrisburg. Appellant’s omnibus pretrial motion to suppress the statements and the evidence after the stop was denied. This appeal followed imposition of sentence.

Appellant first argues that the trial court erred in not suppressing the fruits of an illegal search. Our standard of review for suppression issues is clear. We recently stated in Commonwealth v. Lidge, 399 Pa.Super. 360, 362-63, 582 A.2d 383, 384 (1990):

“In reviewing an order denying a motion to suppress evidence, this court must determine whether the factual findings of the suppression court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.” Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989) (citations omitted).

Bearing these principles in mind, we address appellant’s arguments. Appellant first argues that the facts relied upon by the officers as the basis to approach and question him were insufficient to justify the officers’ behavior. Specifically, he contends that many travelers use cash rather than credit to purchase tickets and that a one day trip to New York is not uncommon. Appellant also asserts that it is not unusual for two people to travel together. Accordingly, he argues that none of the observations recited by the arresting officers, even taken together, rise above a subjective opinion or a hunch. In light of this, appellant contends that this is insufficient to initiate an investigatory stop. See United States v. Buenaventura-Ariza, 615 F.2d 29 (2nd Cir.1980) (facts must equate to an objective basis and not a subjective suspicion). We disagree.

First, we conclude that the officers’ initial questioning of appellant and Bradley was not an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Florida v. Bostick, — U.S.-, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the Supreme Court held that police may approach persons at random, even on a bus, ask questions, and seek consent to search. Thus, the mere act by police of approaching appellant to ask questions does not constitute a Terry stop, and police did not require an articulable suspicion or probable cause to question appellant. See also In Interest of Jermaine, 399 Pa.Super 503, 509, 582 A.2d 1058, 1061 (1990), where we stated:

We adhere to the view that a person is “seized” only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such a restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officers with the privacy and security of individuals.” United States v. Martinez-Fuerte, 428 U.S. 543, 554, 49 L.Ed.2d 116, [1116], 96 S.Ct. 3074, 3081 (1976). As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.

Under this reasoning, the officers’ approach and request that appellant and Bradley answer some questions did not require particularized suspicion or probable cause. Appellant and Bradley could have declined to answer questions or talk with the officers. They chose instead to escape suspicion by answering questions. Consequently, we find Florida v. Bostick, supra, dispositive and reject appellant’s argument.

Furthermore, even if an investigatory stop did occur, the United States Supreme Court recently upheld the utilization of “drug courier” profiles as a basis to stop and investigate suspected drug couriers in United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). There, the Court reviewed numerous factors displayed by the defendant that fit the drug courier profile which included: 1) he paid for his ticket in small bills from a large roll of bills; 2) the ticket name did not match his correct name; 3) his trip originated in Miami, a source city; 4) he stayed at his destination, Honolulu, for only forty-eight hours; 5) he appeared extremely nervous; and 6) he did not check any luggage for his trip. The Court then concluded that these facts taken together were a sufficient articulable reason for a stop, stating:

In evaluating the validity of a stop such as this, we must consider “the totality of the circumstances—the whole picture.” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). As we said in Cortez:
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as fact-finders are permitted to do the same—and so are law enforcement officers. Id., at 418, 66 L.Ed.2d 621, 101 S.Ct. 690 [695].
Any of these factors [in the case] is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion. See Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319 [1326-27], 75 L.Ed.2d 229 (1983).

Id., 490 U.S. at 8, 109 S.Ct. at 1585-86, 104 L.Ed.2d at 10-11.

Appellant seeks to distinguish this authority by noting that the circumstances of suspicion were considerably stronger in United States v. Sokolow than in this instance. There, the defendant and his companion paid for flights to Hawaii costing several thousand dollars in cash and then stayed only for forty-eight hours. Appellant, on the other hand, paid eighty-four dollars in cash and travelled to New York by train. He submits that this is much more likely to be innocent behavior. He asserts that this considerably weakens the officer’s articulable suspicion in light of all the circumstances.

We reject appellant’s argument. Although it might be more common to pay cash and remain a short while in New York, this does not negate the remaining indications that do give rise to a reasonable suspicion that they fit the drug courier profile. These indicia are: 1) appellant made the same trip the week before; 2) he travelled with the same nervous companion; 3) he had a large roll of cash when he paid; 4) he had no luggage; and 5) he gave misleading answers to police questions. We conclude that these factors, when combined, would have provided a reasonable basis to make an investigatory stop and fit within the guidelines of United States v. Sokolow, supra. Accord Commonwealth v. Lidge, 399 Pa.Super. 360, 582 A.2d 383 (1990).

Appellant also seeks to suppress both the physical evidence and the statement made after his arrest in which he indicated that he purchased the cocaine in New York for resale. He also seeks suppression of Bradley’s statement that he found the gun on the train. The basis for this claim is that he previously asked for a lawyer. Appellant first maintains that the police were required to stop all questioning of both men once he requested a lawyer. Appellant reasons that he was seized when the plain-clothes officers surrounded him on the pedestrian bridge with one exit and asked to speak with him. He argues that at this point he did not feel free to leave, citing Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987) (seizure occurs when the individual reasonably believes that he is not free to leave). Accordingly, appellant contends that once he was seized and requested a lawyer, the police were required to cease all questioning. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Consequently, appellant argues that evidence obtained from the stop which followed further questioning after he had requested a lawyer must be suppressed. Id.

We reject appellant’s argument. The United States Supreme Court recently held that a request for a lawyer stops further questioning by police only in instances where the sixth amendment right to counsel attaches and when it has been invoked. McNeil v. Wisconsin, — U.S. -, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). There, the Court stated:

We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than “custodial interrogation”____ If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed prior to identification as a suspect. Most rights must be asserted when the government seeks to take action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect.

Id., — U.S. at-, n. 3, 111 S.Ct. at 2211, n. 3.

Instantly, we previously concluded that appellant was not seized or under arrest at the time the officers initially approached him, and he requested counsel. We now further conclude that despite appellant’s allegation that he did not feel free to leave when the officers approached and he requested counsel, this was not a reasonable belief under the totality of the circumstances. The fact that plainclothes officers approached him in the narrow confines of the pedestrian bridge is not determinative of whether he was free to leave since he chose to limit his freedom of motion by using the confines of public transportation, and the record does not indicate that the officers constrained him by brandishing guns, blocking his path, or otherwise asserting their authority to restrain him.

As was noted previously, the officers approached seeking only to ask questions and obtain his consent to search. This would be a minimum intrusion if appellant were not concealing contraband. Consequently, appellant’s request for counsel when the officers approached him did not serve to terminate further questions by police or mandate suppression of the responses made by either appellant or Bradley; nor does it compel suppression of the resulting arrest and the evidence seized as a consequence of the arrest. Id.

Appellant further contends that he did not give a voluntary, intelligent, and knowing waiver of his rights after he was given his Miranda warnings upon his arrest. This argument is based in part on the argument that giving Miranda warnings does not cancel the effect of statements already unlawfully obtained. We already have determined that his request for a lawyer did not achieve this result. We further note that after Miranda warnings properly are given, the Commonwealth may show a waiver of Miranda rights by a preponderance of the evidence from the circumstances. Commonwealth v. Logan, 519 Pa. 607, 549 A.2d 531 (1988); Commonwealth v. Cephas, 361 Pa.Super. 160, 522 A.2d 63 (1987).

Officer Ciupinski testified that appellant expressly indicated to Detective Holland after he was given his Miranda warnings that he understood his rights, and then he made explanatory statements. N.T., 2/6/90 at 30. This testimony was not contradicted by appellant at the suppression hearing. Where a defendant manifests that he understands his rights and follows immediately with an incriminating answer to the officer’s question, such is “tantamount to a physical manifestation of his present intent to waive his rights. Such a physical manifestation qualifies as an explicit waiver under the definition provided by the [Commonwealth v. Bussey 486 Pa. 221, 404 A.2d 1309 (1979) ] court.” Commonwealth v. Speaks, 351 Pa.Super. 149, 153, 505 A.2d 310, 313 (1986). An express waiver of each and every right is not necessary. Commonwealth v. Bussey, supra. Accordingly, we find the record supports the determination that appellant knowingly, intelligently, and voluntarily waived his rights.

Next, appellant asserts that the evidence adduced at trial was insufficient to establish a conspiracy with Bradley. He contends that mere presence at the scene of the crime does not support a conviction of conspiracy. Commonwealth v. Carter, 329 Pa.Super. 490, 478 A.2d 1286 (1984). It is well-established that the test for reviewing sufficiency of the evidence is that all the evidence and reasonable inferences therefrom will be viewed in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986). Furthermore:

“A conspiracy need not be established by direct evidence. A corrupt agreement to commit a criminal act may be shown by circumstantial evidence. The existence of a common agreement may be inferred from the evidence of the circumstances surrounding the allegedly conspiratorial activities, and from the relationship between and the conduct of the parties. Where the conduct of the parties indicates that they were acting together with a common and corrupt purpose ... the jury may properly infer that a conspiracy did exist.”

Commonwealth v. Brown, 351 Pa.Super. 119, 122-23, 505 A.2d 295, 296 (1986) (citations omitted). Instantly, appellant and Bradley travelled together to New York on two occasions one week apart and stayed a short time. Appellant was found carrying cocaine with a street value of $15,000 in his sock while his companion possessed a concealed weapon. Appellant admitted that they both purchased cocaine in New York and intended to sell it for a profit. We conclude that the evidence more that supports the jury conviction for conspiracy.

Appellant also contends that the trial judge usurped the jury’s factfinder role by suggesting the conclusion he favored in summarizing the evidence in his charge. This claim lacks merit. First, appellant failed to object to the charge at trial and thus failed to preserve this issue for our review. Pa.R.Crim.P. 1119(b); Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977). Second, even if the issue were preserved, it is clear that a trial judge is permitted to summarize the evidence and reasonable inferences therefrom, as he did here, as long as it remains clear to the jury that it must decide the facts. Commonwealth v. Vernille, 275 Pa.Super. 263, 418 A.2d 713 (1980). Instantly, the trial judge made it clear to the jury that it alone was the finder of fact.

Appellant’s final argument is that his sentence of four to ten years incarceration for possession with intent to distribute cocaine and conspiracy manifestly is excessive. He maintains that a three year mandatory minimum for the amount of cocaine he possessed is standard, and a longer minimum was not justified by the reasons stated on the record at sentencing. We note that this is a challenge to the discretionary aspects of sentence. Accordingly, appellant is required to include within his brief a separate statement of the reasons relied upon for appeal. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Our review of appellant’s brief reveals that he complied with this requirement.

We turn our attention to the issue of whether appellant’s statement raises a substantial question that the sentence is inappropriate under the Sentencing Code as a whole. This finding must be made before we may entertain the merits of an appeal from the discretionary aspects of sentence. See 42 Pa.C.S. § 9781(b). In Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc), we considered the types of allegations which raise a substantial question under 42 Pa.C.S. § 9781(b). Quoting Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987), we stated:

What constitutes a “substantial question” under section 9781(b) must be evaluated on a case by case basis. However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the judges’ actions were: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process.

Commonwealth v. Williams, supra, 386 Pa.Super. at 324-25, 562 A.2d at 1387. With these principles in mind, we examine the argument underlying appellant’s excessiveness claim and determine whether it supports an appeal.

Appellant argues that the trial court failed to consider his background, character, and prior record at sentencing. He further contends that when sentencing in the aggravated range, the trial court must set forth its reasons on the record at sentencing. Commonwealth v. Lupatsky, 341 Pa.Super. 338, 491 A.2d 845 (1985). Appellant further notes that the trial court did not order or consider a presentence report, Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988) , and the court’s only on-the-record statement was that intent to distribute is a very serious offense.

42 Pa.C.S. § 9725 mandates that the sentencing court consider not only the nature and circumstances of the crime, but also the history, character, and condition of the defendant. Thus, appellant’s argument that the court focused solely on the crime advances a colorable claim that the sentencing court acted in a manner contrary to the Sentencing Code. Therefore, it is clear that it raises a substantial question that the sentence imposed is inappropriate under the Sentencing Code as whole and supports an appeal from the discretionary aspects.

We now address the merits. Great weight is given to the sentencing judge’s discretion, and a sentence will not be disturbed absent an abuse of that discretion. Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990). Furthermore, an appellate court will not find an abuse of discretion unless the sentence is so manifestly excessive as to inflict too severe a punishment. Commonwealth v. Hainsey, 379 Pa.Super. 376, 550 A.2d 207 (1988). Instantly, the sentencing transcript reveals that trial court was apprised of appellant’s youth, that he is a high school graduate, he lived with his mother, and had a job. The court also acknowledged that although appellant never had been incarcerated, he possessed a juvenile record.

While it is clear that the trial court did not elaborate as to the specific weight given to the various factors, this fact is not fatal so long as the court properly considered the sentencing factors. Commonwealth v. Frazier, 347 Pa.Super. 64, 500 A.2d 158 (1985). The sentencing judge was made aware of appellant’s background and record at sentencing and considered them in conjunction with the crimes. We will presume that the trial judge considered the evidence of mitigating circumstances presented to him at the sentencing hearing. Commonwealth v. McDonald, 399 Pa.Super. 250, 259, 582 A.2d 328, 331 (1990) (it is presumed that a court considers all evidence presented to it at a hearing); see also Commonwealth v. Devers, supra, where the Court stated “It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.” Id., 519 Pa. at 102, 546 A.2d at 18. We further note that Pa.R.Crim.P. 1403 provides that the court may order a presentence report but it is not required that it do so; it mandates only that the court consider the appropriate sentencing factors.

The sentencing court considered appellant’s background and mitigating factors, and weighed them together with the serious crimes that he committed. These crimes included possession with intent to deliver, conspiracy, and, as a result of the conspiracy, possession of a concealed weapon. Even though sentences for most of these crimes were made concurrent, we do not find that a four year minimum incarceration in consideration of these circumstances is so manifestly excessive as to shock our conscience with its severity.

Judgment of sentence affirmed.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    595 A.2d 600
    COMMONWEALTH of Pennsylvania v. Jason L. ENDERS, Appellant. COMMONWEALTH of Pennsylvania v. Scott Francis LIPTAK, Appellant. COMMONWEALTH of Pennsylvania v. Alexander O. STEINBERG, Appellant. COMMONWEALTH of Pennsylvania v. Daniel NELSON, Appellant.
    Superior Court of Pennsylvania.
    Argued April 18, 1991.
    Filed July 30, 1991.

      John P. Lawler, Stroudsburg, for appellant (at 1882).
    Robin A. Spishock, Stroudsburg, for appellant (at 2030).
    Nancy Aaroe, Stroudsburg, for appellant (at 2123).
    William K. Sayer, Asst. Public Defender, Stroudsburg, for appellant (at 2199).
    Gregory Doyle, Asst. Dist. Atty., Stroudsburg, for the Com., appellee (at 1882, 2030, 2123 and 2199).
    Before MONTEMURO, BECK and TAMILIA, JJ.
   MONTEMURO, Judge:

These unconsolidated appeals arise from the judgments of sentence entered after a jury trial at which all appellants, Jason L. Enders, Scott Francis Liptak, Alexander 0. Stein-berg and Daniel Nelson, were convicted of false imprisonment. The charges stemmed from appellants’ participation in a satanic cult ritual. After all appellants’ post-verdict motions were denied, sentences were imposed. It is from these sentences that the instant appeals are taken.

Appellants, collectively and individually, raise four (4) issues for our consideration. Generally, it is alleged that: 1) the verdicts were based upon insufficient evidence and were against the weight of the evidence; and, 2) the trial court erred in (a) admitting into evidence items seized from all appellants’ homes; (b) limiting the examination of co-defendants’ witnesses; and, (c) failing to give a cautionary instruction at the introduction of co-defendant Nelson’s inculpatory statement. After a thorough review of the record and applicable case law, we find all of appellants’ allegations without merit.

The facts as established at trial, and set forth by the trial court in its opinion adjudicating appellants’ post-verdict motions, are as follows:

On Friday, July 21,. 1989, the victim, Charles Collier received a phone call from Jason Enders who requested that Collier come over to Enders’ home. When Collier arrived at Enders’ home, he spoke briefly with Enders who left the porch and entered his home. A short time later Enders returned to the porch and told Collier that some people were coming over. Thereafter, a vehicle arrived at the Enders’ residence with Jason Male, Scott Liptak, Daniel Nelson and Alex Steinberg. At some point the subject of a “cult” was brought up. Collier said he wanted nothing to do with it. He was forcibly taken to an abandoned barn down the road from the Enders’ home and held against his will. He was tied to stakes in the ground in spread eagle fashion over a pentagram drawn in the dirt. He had a leather collar with nails placed about his neck. Collier specifically testified that each of the defendants was involved in tying him down. A satanic or occult ritual was performed over him. Before the ritual ended, Defendant Steinberg punctured Collier’s neck by pressing on the nails and placed his fingers in Collier’s blood and then to his lips. Subsequently, the victim was released after being threatened by Steinberg that, if he told anyone what happened, they would kill him.
On Monday evening Collier told his grandmother about the ritual and identified the Defendants as the perpetrators. On Tuesday, the police came to interview Collier at his grandmother’s home. While the police were present, Defendant Nelson arrived and was identified by Collier. The police arrested Nelson who subsequently gave two detailed statements to police. Both statements implicated all Defendants in the ritual. On Tuesday, July 25, 1989, Collier sought medical attention for the wounds to his neck. Dr. Gilkey, the treating physician, testified that the wounds were consistent with puncture wounds.

See Opinion of Trial Court, pp. 3-5 (emphasis added).

Appellants Enders, Liptak and Nelson each challenge the sufficiency of the evidence. In reviewing this claim, we begin with the well-known standard which requires that we ask:

... whether, accepting as true all of the Commonwealth’s evidence and all reasonable inferences arising therefrom upon which, if believed, the fact-finder could reasonably have based its verdict, such evidence and inferences are sufficient in law to establish the elements of the crime in question beyond a reasonable doubt.

Commonwealth v. Nelson, 514 Pa. 262, 270, 523 A.2d 728, 733 (1987), cert. den. 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (citation omitted).

The elements of the crime in this instance are defined by the Crimes Code, which states that a person will be guilty of false imprisonment

... if he knowingly restrains another unlawfully so as to interfere substantially with his liberty.

18 Pa.C.S.A. § 2903. After a thorough review of the notes of testimony, and construing the evidence in the light most favorable to the Commonwealth, we agree with the trial court that the Commonwealth presented evidence sufficient to convict appellants, Enders, Liptak and Nelson, of false imprisonment. Further, appellants’ attempt to assert that the evidence is insufficient as it lacks “some minimal standard of credibility” fails as it is within the jury’s sole province, as fact-finder, to judge the credibility and veracity of a witness. See Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988) (The question of a witness’ credibility is reserved exclusively for the jury.) As the jury chose to believe the victim over the testimony of appellants’ alibi witnesses, appellants’ first issue lacks merit.

It is next argued, by all appellants, that the trial court erred in admitting into evidence certain photographs of all appellants’ bedrooms, their class pictures, and various items seized from their homes, including skulls and books concerning the occult. It is well-settled law that

[tjke trial court has ‘broad, discretion as to the manner in which a trial is to be conducted, particularly with regard to the admission or exclusion of evidence. ’ Commonwealth v. Lumpkins, 324 Pa.Super. 8, 14, 471 A.2d 96, 99 (1984). Relevancy is, ..., a basic requirement for the admissibility of any evidence in a criminal trial. Id.

Commonwealth v. Conway, 368 Pa.Super. 488, 493-95, 534 A.2d 541, 544 (1987), alloc. den. in 520 Pa. 581, 549 A.2d 914 (emphasis added).

Evidence is relevant when “the inference sought to be raised by the evidence bears upon a matter in issue in the case and, second, whether the evidence ‘renders the desired inference more probable than it would be without the evidence^]’ ”

Commonwealth v. Haight, 514 Pa. 438, 440, 525 A.2d 1199, 1200 (1987), citing Commonwealth v. Stewart, 461 Pa. 274, 278, 336 A.2d 282, 284 (1975) (citations omitted in original).

However, not all relevant evidence is admissible, and a trial court may exercise its discretion to exclude relevant evidence that ‘may confuse, mislead or prejudice the jury,’ Id. 324 Pa.Super. at 15, 471 A.2d at 100. (citations omitted). Of course, most of the evidence offered by the prosecution in a criminal case will prejudice the defen dant. Commonwealth v. Dollman, 355 Pa.Super. 108, 114, 512 A.2d 1234, 1237 (1986) (citations omitted). The inquiry therefore is whether the evidence is so prejudicial that it ‘may inflame’ the jury to make a decision based upon ‘something other than the legal propositions relevant to the case.’ Commonwealth v. Shain, 324 Pa.Super. 456, 464, 471 A.2d 1246, 1249 (1984); (citation omitted). A piece of evidence is of essential evidentiary value if the need for it clearly outweighs the likelihood of it inflaming the minds and passions of the jurors. (citation omitted). Because rulings on the admission of evidence rest within the sound discretion of the trial court, we will not reverse the trial court’s decision absent a manifest abuse of discretion. Commonwealth v. Lumpkins, supra 324 Pa.Super. at 15, 471 A.2d at 100.”

Commonwealth v. Conway, supra.

In determining whether the trial court abused its discretion in this instance, we note that appellants were brought to trial on charges of kidnapping, conspiracy, false imprisonment and simple assault. The basis of the charged criminal activities stemmed from ritualistic acts performed upon the victim after he had been forceably abducted and confined against his will. The Commonwealth, therefore, sought to prove that the actions of all four (4) defendants were commensurate with a belief in satanism which resulted in the intentional restraint and assault of the victim. Appellants’ defenses were that they were not at the barn on the evening in question, and that they were not involved in satanism. Obviously then, the Commonwealth’s introduction, and the trial court’s admission, of the evidence tends to establish a fact in issue—whether appellants believed in and were involved in satanism at the time of the incident, and whether appellants acted consistently with their beliefs and practices. Therefore, the evidence is relevant and probative.

In weighing the inflammatory nature of the evidence against its probative value, the trial court found the evidence more probative than prejudicial. We do not find this to be an erroneous determination. As stated in Commonwealth v. Clark, 280 Pa.Super. 1, 421 A.2d 374 (1980), “[i]n determining whether the evidence is so remote that the prejudicial effect outweighs the probative value, the court has no fixed standard on which to rely, but must instead consider the nature of the crime, the evidence being offered, and all attendant circumstances.” Id., 280 Pa.Superior Ct. at 7, 421 A.2d at 376, citing Commonwealth v. Kinnard, 230 Pa.Super. 134, 326 A.2d 541 (1974). As the evidence offered tends to confirm the knowledge and intent of appellants in furtherance of the alleged criminal activity, the trial court was correct in admitting the evidence in this case. As such is the case, appellants’ contentions fail.

Appellants Enders, Liptak and Nelson next challenge the trial court’s decision to limit examination of their witnesses. During the presentation of the defense, the trial judge ruled that direct examination of a witness would be permitted by the defense counsel who called the witness. Thereafter, all other co-defendants would be permitted cross-examination. Then the Commonwealth would be permitted cross-examination, and redirect would be permitted only as to the defendant who called the witness. Appellants seek to assert that the trial court abused its discretion in limiting examination of the witnesses as appellants were effectively denied redirect.

Initially, it is clear that “[t]he scope of redirect examination is largely within the discretion of the trial court.” Commonwealth v. Dreibelbis, 493 Pa. 466, 479, 426 A.2d 1111, 1117 (1981), citing Commonwealth v. Stokes, 475 Pa. 312, 380 A.2d 370 (1977). In reviewing the procedures conducted for the examination of defense witnesses in this lengthy and convoluted trial, each appellant was given a full and fair opportunity to cross-examine any defense witness presented by a co-defendant. Further, appellants had the right to recall these same witnesses during the presentation of their own defenses, which in effect granted them redirect on any issue brought forth by the Commonwealth on cross-examination which was not covered on redirect by counsel who called the witness. As noted in Commonwealth v. Kauffman, 155 Pa.Super. 347, 38 A.2d 425 (1944), “[i]t is the function of redirect examination to explain, enlarge upon, or qualify new matter brought out by cross-examination, so that the jury will not receive distorted impression of facts from such testimony.” Id., 155 Pa.Superior Ct. at 353, 38 A.2d at 428. See also Commonwealth v. Sampson, 454 Pa. 215, 311 A.2d 624 (1973). This appellants were permitted to do during the presentation of their defenses. Finally, in light of the number of defendants and witnesses in this trial and the volume of testimony presented for the jury’s consideration, the trial court was correct in limiting lengthy and convoluted examinations of witnesses, so as to preserve orderly presentation of evidence to the jury. As the trial judge did not abuse his discretion, appellants’ allegations are without merit.

The final assertion, raised by appellants Liptak and Steinberg, is that the trial court erred in failing to give cautionary instructions at the time of the introduction of co-defendant, Daniel Nelson’s, inculpatory statement, which implicated all defendants. As stated in Commonwealth v. Covil, 474 Pa. 375, 378 A.2d 841 (1977), “[a] limiting instruction may be given either as the evidence is admitted or as part of the general charge.” Id., 474 Pa. at 383, 378 A.2d at 845. Further, “[i]t is intended that the trial judge determine on a case by case basis whether instructions before the taking of evidence or at anytime during trial are appropriate or necessary to assist the jury in hearing the case.” Pa.R.Crim.P., Rule 1119. And, although our Supreme Court, in Covil, emphasized that it is better to give a limiting instruction at the time evidence is admitted, this is not a strict rule. After reviewing the trial court’s reasoning in postponing the limiting instruction, the Supreme Court in Covil concluded that "... the danger that the jury would misuse the evidence ... was relatively minor, thus reducing the necessity that a limiting instruction be given immediately.” Covil, supra, 474 Pa. at 384, 378 A.2d at 846 (footnote omitted).

From a review of the trial transcript in this case, it is not unreasonable to conclude that the danger that the jury would misuse co-defendant Nelson’s inculpatory statement is minor. The trial court, based on a request of defense counsel during the testimony of the victim, gave a general cautionary instruction to the jury stating that,

I will indicate to the jury that we are dealing with five defendants in this case. There will be various evidence which will occur, I assume, in this case, which involves only one defendant. You are to keep in mind that that evidence is only with regard to that defendant, and it’s up to the Commonwealth to try to establish some connection between the evidence against one defendant and the charges against all the defendants ...

N.T., Volume I, p. 22. When later requested to give the same cautionary instruction during the introduction of the statement of co-defendant Nelson, the trial court indicated to the jury that due to the fact that so much evidence would be introduced which would necessitate the instruction, the trial judge would give the instruction in great detail as part of the Charge of the Court. See N.T., Volume II, pp. 296-97. This determination was reasonable in light of the number of defendants involved and the many witnesses called by all parties. Further, we find no abuse of discretion in light of two instructions by the trial court at the close of all evidence:

“The statements of confession made by defendant Daniel Nelson after the alleged commission of the crimes charged cannot be considered by you as substantive proof of the guilt or innocence of the other defendants in this matter, but can only be used as evidence of guilt or innocence of the defendant Daniel Nelson, himself.”
“Although the defendants in this case are being tried together, you must give separate consideration to each defendant. In so doing, you must determine what the evidence in the case shows with respect to each defendant, leaving out of consideration any evidence submitted solely against one of the other defendants. Specifically, any physical evidence found in the homes of co-defendants and entered as evidence should be considered solely against those defendants, and not against other defendants ...”

N.T., Volume IV, pp. 1069-70. As it is within the trial judge’s discretion to determine when to give limiting instructions, and as the instructions given encompass the concerns raised by appellants, there was no danger that the jury would misuse the evidence. Therefore, the final allegation of appellants Liptak and Steinberg is without merit.

Based upon the foregoing analysis, all judgments of sentence are affirmed.

Affirmed.

      . Appellants Enders, Liptak and Nelson received verdicts of not guilty as to charges of kidnapping, conspiracy and simple assault. Appellant Steinberg was found not guilty of kidnapping and conspiracy; however, he was convicted of simple assault.

      . Appellants Enders and Steinberg were each sentenced to eleven and one-half (lli/2) to twenty-three (23) months imprisonment. Appellants Liptak and Nelson were each sentenced to six (6) to twelve (12) months imprisonment.

      . Appellant Steinberg has waived this issue. It is well established that only those issues included in written post-verdict motions will be considered preserved for appellate review. Commonwealth v. Goins, 348 Pa.Super. 22, 501 A.2d 279 (1985); Pa.R.Crim.P. 1123. Boilerplate motions, that "evidence was insufficient to support the verdict” and “the verdict was against the weight of the evidence”, will preserve no issue for appellate review unless the motion goes on to specify in what respect the evidence was insufficient, or why the verdict was against the weight of the evidence. Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983), citing Pa.R.Crim.P., Rule 1123, 42 Pa.C.S.A. As appellant Steinberg failed to specify in his post-verdict motions why the verdict is against the weight of the evidence or in what respect the evidence is insufficient, he has waived these issues on appeal. Further, even were we to have examined this claim, the result would offer him no relief. See discussion, supra.

      . Appellants Enders, Liptak and Nelson also appear to be arguing that the verdict is against the weight of the evidence due to the alleged unreliable and contradictory nature of the evidence. We note that the ability of appellate courts in this Commonwealth to review a verdict to determine if it is against the weight of the evidence has been questioned by our Supreme Court. See Commonwealth v. Nelson, 514 Pa. 262, 273 n. 3, 523 A.2d 728, 733 n. 3 (1987). And, although we are still permitted to review such an allegation to determine whether the verdict “shocks one's sense of justice", we do not find, from a reading of the cold record, that the verdict in this instance meets that standard. See Commonwealth v. Torres, 396 Pa.Super. 499, 578 A.2d 1323 (1990). Therefore, any attempt by appellants to question the weight of the evidence fails.

      . As stated in Commonwealth v. Costal, 351 Pa.Super. 200, 505 A.2d 337 (1986), "[e]vidence of appellant’s affiliation with satanism is prejudicial.” Id., 351 Pa.Superior Ct. at 203, 505 A.2d at 338.

      . It is also noted that the jury was not compelled to believe that appellants participated in the occult as ample testimony was elicited at trial to show that the evidence admitted was merely representative of rock groups, a friendship club and research material. See N.T., Volume III, pp. 711-720; Volume IV, pp. 838-39, 842-851, 902-907. Further, with regard to appellant Nelson, the jury was made fully aware that he was mentally slow and easily influenced by others, which appellant Nelson sought to use to negate his intent and culpability. See N.T., Volume III, p. 584. Therefore, the jury was not swept “beyond a rational consideration of the guilt or innocence of the crime on trial.” Commonwealth v. Costal, supra, citing Commonwealth v. Ulatoski, 472 Pa. 53, 63, 371 A.2d 186, 191 n. 11 (citation omitted).

      . Appellant Steinberg has waived this issue as he failed to properly preserve it in his post-verdict motions. See Footnote 3, supra.

      . The reasons provided for this determination were explained by the trial court, as follows:
      THE COURT: ... It’s the Court’s role to organize the procedure in a manner which will be somewhat probative and helpful to the jury. The efforts of counsel to ask every question they can conceive of without relevance or probative value will not be permitted. Obviously, any of you, when you call witnesses on your case, can recall witnesses to ask questions probative of matters you feel not adequately covered.
      N.T., Volume III, p. 616-17.

      . It is also noted that all testimony presented by defendants in this case was consistent in that all sought to prove that they were not present at the scene, and that they did not believe in or practice satanism. Therefore, any given defense counsel’s redirect of a witness was for the benefit of all, and covered any potential harm brought forth on cross-examination by the Commonwealth. Further, appellants did not recall any witness, as permitted by the court, which leads to the conclusion that appellants had no need for redirect examination. Appellants’ assertions of harm are accordingly without merit.

      . To the extent that appellants seek to challenge these instructions, they have waived any right of review as they failed to object or take any exceptions at the time of trial. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).


author: CIRILLO, Judge:

text:
    595 A.2d 606
    H. Parker GLENN v. Ronald L. SHUEY and Holly F. Shuey, Appellants.
    Superior Court of Pennsylvania.
    Submitted April 1, 1991.
    Filed July 31, 1991.

      Dennis 0. Reiter, Bellefonte, for appellants.
    Louis T. Glantz, State College, for appellee.
    Before CIRILLO, MONTEMURO and HESTER, JJ.
   CIRILLO, Judge:

Ronald and Holly Shuey (“the Shueys”) appeal from the judgment entered in the Court of Common Pleas of Centre County following appellee H. Parker Glenn’s action in ejectment. We affirm.

This appeal arises from a dispute concerning the boundary between two parcels of real estate situated in Howard Township, Centre County. See appendix. Both parcels (“parcel A” and “parcel B”) were at one time owned by Ronald Curtin. On January 18, 1833, Curtin conveyed what eventually became the Shueys’ property, parcel B, to Michael Leyman by a deed recorded in Centre County deed book K, page 397. On March 25, 1842, Curtin conveyed parcel A to John Leathers by a deed recorded in Centre County deed book N, page 422.

The Shueys are owners of parcel B by virtue of a deed dated July 12, 1967, and recorded July 13, 1967 in Centre County deed book 294, page 596. Glenn’s sources of title in parcel A are two deeds, one recorded July 5, 1957 in deed book 238, page 389, by which he became the owner of one-half interest, and the other recorded in deed book 247, page 257 on June 18, 1959, which vested title to the remaining one-half interest.

During 1987, a survey of parcel B was performed by Fred Henry on behalf of the Shueys. Subsequent to Henry’s survey, Glenn employed Kerry H. Uhler and Associates for the purpose of surveying parcel A. The Uhler survey located the boundary line between parcels A and B as passing within a few feet west of the Shueys’ home. In contrast, the Henry survey located that line as passing 25 feet west of the line as determined by the Uhler survey. See appendix, disputed tract.

Until the completion of the Henry Survey in May, 1987, the Shueys’ use of the disputed tract was limited to a twelve-foot wide gravel driveway passing along the western edge of the Shueys’ home and ending at the rear of the Shueys’ porch. The driveway extends from the rear of the Shuey home to the township road. Subsequent to the Henry survey, the Shueys placed a rope barrier along the line which they claimed to be the proper boundary between their property and that of Glenn. The Shueys also placed a large propane tank in the disputed tract at the southern end of the driveway. Prior to the placement of the barrier, the entire disputed tract, with the exception of the gravel driveway, was used exclusively by Glenn. Glenn’s use of the disputed area included, 1) mowing the grass strip between the gravel driveway and the property line as claimed by Glenn, 2) the maintenance of various shrubs, grapevines and berry bushes in the disputed tract south of the end of the driveway, and 3) mowing and/or cutting grass in the disputed tract including cutting hay for livestock.

Glenn commenced an action in ejectment in the Court of Common Pleas of Centre County, alleging that the Shueys’ actions deprived him of a portion of property to which he possessed legal title by virtue of deeds dated October 30, 1956 and June 18, 1959. Glenn’s complaint also averred that he and his predecessors in title were in open, visible and notorious possession of the disputed area since January 30, 1923, for a period of over 65 years.

In their answer and new matter, the Shueys disputed the accuracy of the Uhler survey and alleged that all of their activity, including the erection of the rope barrier, transpired upon their own property as depicted by the Henry survey. The Shueys claimed ownership of the disputed property by virtue of their deed. Alternatively, the Shueys averred that they and their predecessors in title had used and maintained the driveway running along the western edge of the Shuey home for a period in excess of 21 years. Similarly, the Shueys maintained that they and their predecessors were in open, visible and notorious possession of the driveway and the entire parcel as depicted by the Henry survey for a period in excess of 21 years. Consequently, the Shueys claimed legal title to the disputed area by virtue of adverse possession.

The case proceeded to a non-jury trial, the Honorable David E. Grine presiding. In his first opinion and order, filed July 25, 1989, Judge Grine determined that the Uhler survey correctly determined the boundary between parcel A and parcel B. Consequently, the court held that the line between the properties passed within a few feet west of the Shueys’ home and therefore Glenn possessed legal title to the majority of the gravel driveway. In addition to establishing title by survey to within a few feet of the Shueys’ home, the court opined that Glenn established title to the western edge of the Shueys’ driveway by adverse possession as he exercised exclusive, visible and notorious control over the tract for a period of 21 years.

The trial court further held that because the Shueys had occupied their own property for a period of 20 years and 11 months as of the time of Glenn's ejectment action, they failed to establish ownership rights in the disputed tract by adverse possession. The court rejected the Shueys’ allegation that they established the requisite 21 year period for acquiring title by adverse possession by tacking on their predecessor’s possession of the disputed tract.

The trial court reasoned that the Shueys could not satisfy the requirements of section 72 by tacking because: 1) no relationship existed between the Shueys and their predecessor; 2) the predecessor had not claimed title to the disputed property; and 3) the deed conveying title to the Shueys made no reference to the disputed tract.

The Shueys’ motion for post-trial relief was denied, and the trial court entered an opinion and order on September 26, 1989. On September 28, 1989, counsel for the Shueys sent Judge Grine a letter requesting that the court reconsider its order denying post-trial relief. Subsequently, on October 10, 1989, the court filed an amended opinion and order denying the Shueys’ motion for post-trial relief.

The Shueys present the following issues for our consider-' ation:

1) Did appellants [the Shueys] establish ownership of a driveway adjacent to their home by adverse possession?
2) Can appellants [the Shueys] tack their period of adverse possession and use of the driveway onto periods of adverse possession and use of the same by their predecessors in title?

Since the Shueys’ issues are intertwined, we combine them for purposes of discussion.

At the outset, we note that “the factual findings of a trial court sitting without a jury carry the same weight as a jury verdict, and we will not disturb those findings on appeal absent an error of law or abuse of discretion.” Arcadia Co., Inc. v. Peles, 395 Pa.Super. 203, 207-208, 576 A.2d 1114, 1116 (1990) (citing Pato v. Cernuska, 342 Pa.Super. 609, 612, 493 A.2d 758, 759 (1985)); see also Bingham v. Wenschhof, 295 Pa.Super. 146, 148, 441 A.2d 391, 392 (1982).

It is well settled that a party claiming title to real property by adverse possession must affirmatively prove that he or she had "actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years.” Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949) (citing Parks v. Pennsylvania R.R. Co., 301 Pa. 475, 152 A. 682 (1930)); see also Klos v. Molenda, 355 Pa.Super. 399, 513 A.2d 490 (1986); Tioga Coal Co. v. Supermarkets General Corp., 289 Pa.Super. 344, 433 A.2d 483 (1981), alloc. denied, 500 Pa. 555, 458 A.2d 1355 (1983). Each of these elements must exist, otherwise the possession will not confer title. Conneaut Lake, 362 Pa. at 594-595, 66 A.2d at 829. "An adverse possessor must intend to hold the land for himself, and that intention must be made manifest by his acts ... He must keep his flag flying and present a hostile front to all adverse pretensions.” Klos, 355 Pa.Super. at 402, 513 A.2d at 492 (citations and quotations omitted).

Broadly speaking, “actual possession” of land is dominion over the land; it is not equivalent to occupancy. Reed v. Wolyniec, 323 Pa.Super. 550, 471 A.2d 80 (1983); Burns v. Mitchell, 252 Pa.Super. 257, 381 A.2d 487 (1977) (en banc) (plaintiff who had occupied defendant’s land and maintained lawn up to fence for more than 21 years established title by adverse possession); C.J.S., Adverse Possession §§ 30, 42. There is no fixed rule, however, by which the actual possession of real property by an adverse claimant may be determined in all cases. 3 Am Jur.2d § 18, at 109. The determination of what constitutes actual possession of property for purposes of adverse possession depends on the facts of each case, and to a large extent on the character of the premises. Id.

The words “visible and notorious possession,” as applied to the adverse holding of land by a party without color of title, mean that the claim of ownership must by evidenced by conduct sufficient to place a reasonable person on notice that his or her land is being held by the claimant as his own. Sterner v. Freed, 391 Pa.Super. 254, 570 A.2d 1079 (1990) (plaintiffs use of defendant’s driveway notorious for 26 year period and therefore sufficient to establish prescriptive easement); 3 Am Jur.2d § 69, at 165-166.

To constitute distinct and exclusive possession for purposes of establishing title to real property by adverse possession, the claimant’s possession need not be absolutely exclusive. Reed, supra. Rather, it need only be a type of possession which would characterize an owner’s use. For example, in Reed, the appellees, Robert and Audrey Reed, asserted title by adverse possession to a lot adjacent to their residence. The Reeds had maintained the lot by cutting the lawn and by planting and maintaining thereon various shrubbery and flowering plants. In affirming the trial court’s determination that the Reeds had established title to the lot by adverse possession, Judge Wieand, writing for a unanimous court, opined:

Thus, the exclusive character of appellees’ [the Reeds] possession was not destroyed because other persons occasionally passed unobserved over the lot. It was enough that appellees’ possession was to the general exclusion of others and that they remonstrated with persons who attempted, without permission, to use the land.

Reed, 323 Pa.Super. at 556, 471 A.2d at 84 (citation omitted); see also Pistner Bros., Inc. v. Agheli, 359 Pa.Super. 177, 518 A.2d 838 (1986) (subdivision lot owner’s action in planting grass on abutting, undedicated street held insufficient to establish interference with use of street for purposes of adverse possession where others able to use street for its intended purpose); Lyons v. Andrews, 226 Pa.Super. 351, 313 A.2d 313 (1973).

The word “hostile,” as an element of adverse possession does not mean “ill will” or “hostility,” but implies an assertion of ownership rights adverse to that of the true owner and all others. Schlagel v. Lombardi, 337 Pa.Super. 83, 486 A.2d 491 (1984) (citing Vlachos v. Witherow, 383 Pa. 174, 118 A.2d 174 (1955)); see also Jones v. Porter, 3 P. & W. 132 (1831) (party who attempted to establish adverse possession was not required to show that he had entered land and held it in direct hostility to other claimants). Simply stated, the possession must be “such as to import a denial of the owner’s title.” 3 Am.Jur.2d § 50, at 143-144. Cf. Gee v. CBS, Inc., 471 F.Supp. 600, 655-658 (E.D.Pa.), aff'd, 612 F.2d 572 (3d Cir.1979) (in context of suit by recording artist against record company to recover property rights in recording, requirement of hostility for adverse possession meant that record owner of song did not consent to claimant’s possession). Furthermore, if all of the elements of adverse possession other than hostility are established, the element of hostility is implied. Schlagel, supra.

Finally, in order for adverse possession to ripen into title, it is necessary to show that such possession has been continuous and uninterrupted for the full statutory period. Tioga Caal, supra; Elias v. Scott, 164 Pa.Super. 329, 64 A.2d 508 (1949). In this Commonwealth, as in most jurisdictions, the statutory period is twenty-one years. See 42 Pa.C.S. § 5530(a)(1), supra note 3; Conneaut Lake, supra; Klos, supra. The law does not require that the claimant remain continuously on the land and perform acts of ownership from day to day. See Reed, supra (single twenty-four hour attempt by record owner to interrupt claimant’s possession did not destroy continuity of adverse possession). A temporary break or interruption, not of unreasonable duration, does not destroy the continuity of the adverse claimant’s possession. Id.

Here, the trial court focused primarily on the Shueys’ failure to show that they exercised dominion over the driveway for the statutory period of 21 years. In arguing that they acquired title to the driveway by adverse possession, the Shueys allege that the trial court erred in concluding that they could not tack the period of adverse possession of their predecessors onto their own possession. The Shueys do not dispute the trial court’s factual determination that Glenn commenced his action in ejectment on June 25, 1988, twenty years and eleven months after the occupancy of parcel B by the Shueys. Since it appears that the Shueys must show that they were entitled to tack the adverse possession of the previous occupants to their own possession in order to establish title to the driveway, we turn our attention to prior cases in which tacking was at issue.

In Wittig v. Carlacci, 370 Pa.Super. 584, 537 A.2d 29 (1988), a panel of this court reviewed the principles of law applicable when a party attempts to tack the adverse possession of his or her predecessor onto his or her own time of possession:

The possession of successive occupants may be tacked, but only where there is privity between them____For our purposes, “privity” refers to a succession of relationship to the same thing, whether created by deed or other acts or by operation of law____ But a deed does not itself create privity between the grantor and the grantee as to land not described in the deed but occupied by the grantor in connection therewith, although the grantee enters into possession of the land not described and uses it in connection with that conveyed * * * The deed, in itself, creates no privity as to land outside its calls. Nor is privity created by the bare taking of possession of land previously occupied by the grantor.

Id., 370 Pa.Superior Ct. at 589, 537 A.2d at 31-32 (citations omitted) (quoting Castronuovo v. Sordoni, 357 Pa.Super. 187, 193-94, 515 A.2d 927, 930-31 (1986)); see also Stark v. Lardin, 133 Pa.Super. 96, 1 A.2d 784 (1938) (where grantor intended to convey land which he held by adverse possession, description in deed was defective and grantor delivered possession of land to grantees, sufficient privity of possession existed between grantor and grantees so as to warrant tacking of grantees’ occupation of disputed land with that of grantor; grantor testified to his possession of disputed land and that he intended to convey it to grantees, and actual delivery of possession of disputed land coincided with defective deed). The Wittig court noted: “Each predecessor must have claimed title to the property in dispute, and in transferring to his successors must have purported to include it.” Wittig, 370 Pa.Super. at 589-590, 537 A.2d at 32 (citations omitted); see also Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 360 A.2d 209 (1976) (where appellees’ deeds purported to include disputed parcel of property, each appellee was permitted to tack his possession to that of his predecessors in title in order to establish requisite 21 years for adverse possession). Thus, a grantee cannot tack his grantor’s adverse possession of land when the grantor does not convey such land to him. Wittig, supra; Shaffer v. Lauria, 50 Pa.Super. 135 (1912).

In Plott v. Cole, 377 Pa.Super. 585, 547 A.2d 1216 (1988), this court addressed the issue of tacking once again. There, Mrs. Plott acquired title to a property known as 157 Ann Street by a deed that described the property as being separated from 155 Ann Street, the adjoining property, by a partition wall. The deed provided for an easement in favor of the owners of 155 Ann Street to use the eastern half of the double stairway located on the western side of the partition wall to travel to and from the second floor of 155 Ann Street. The deed to 155 Ann Street corresponded, describing the easement over the eastern half of the double stairway in the rear of 157 Ann Street along the western side of the partition wall for ingress and egress to the second floor of 155 Ann Street. The deed dated 1982, conveying the premises at 155 Ann Street, also contained the easement language. Following a sheriffs sale, the deed conveying the property at 155 Ann Street to the Administrator of Veterans Affairs referred to the previous conveyance and to the place of record in the record book. In October, 1983 the Administrator of Veterans Affairs permitted Raymond Cole to take possession of 155 Ann Street.

During the 1950’s a screening wall had been erected along the western side of the double stairway for privacy purposes. In 1986, Cole installed a toilet in the area under the double stairway. In response, Plott filed an action in ejectment against Cole, alleging that she and the other inhabitants of her home had been subjected to foul odors, noise, insects and rodents as a result of the installation of the toilet. The trial court found the screening wall to be the boundary line between the parties.

On appeal, this court reversed, noting that there was no conflict between the courses and distances in the deeds and the actual location of the partition wall on the eastern side of the stairway as described in the deeds. Plott, 377 Pa.Super. at 590, 547 A.2d at 1219. This court analyzed Cole’s argument that the construction of the screening wall created a new boundary between the properties by the establishment of a consentable line by acquiescence or through adverse possession. Plott, 377 Pa.Super. at 591-592, 547 A.2d at 1220-1221. Because Cole had only been in possession of 155 Ann Street since 1983, the finding of a consentable line depended greatly upon the actions of his predecessors in interest and whether he could tack their possession of the disputed property to his own in order to meet the statutory period. Id., 377 Pa.Superior Ct. at 594, 547 A.2d at 1221.

The Plott court noted that none of Cole’s predecessors asserted ownership rights over the disputed property. Similarly, the court noted that none of Cole’s predecessors in title intended to convey more than what was set forth in their respective deeds. Id., 377 Pa.Superior Ct. at 596-597, 547 A.2d at 1222. The court further stated:

Privity is not created by the bare taking of possession of land previously occupied by the grantor ... which is what Mr. Cole has done here ...

Id., 377 Pa.Superior Ct. at 597, 547 A.2d at 1222-1223 (citations omitted). The Plott court thus concluded that there was no privity between Cole and his predecessors so as to preserve unity of possession. Id.

Here, the trial court held that the failure of the Shueys to show that their immediate predecessor in title claimed the disputed tract was evidenced by the testimony of Ken Bitner. Bitner testified that he lived in his parents’ home, now the Shueys’ home, for approximately ten years beginning in 1954. When asked who lived in the Shuey house after he moved out but before the Shueys moved in, Bitner stated that Joseph Leathers lived there. The Shueys argue that their immediate predecessors in title are John A. and Tracie M. Barnhart who leased the premises to Leathers.

The record indicates that the Barnharts, rather than Ken Bitner, were the Shueys’ immediate predecessors in title to parcel B. The Shueys acquired title to parcel B from the Barnharts by a deed recorded July 13, 1967 in Centre County deed book 294, page 596. Similarly, the deposition testimony of Joseph C. Leathers refutes the trial court’s apparent conclusion that Bitner is the Shueys’ immediate predecessor in title to parcel B. Leathers testified as follows:

Q: So you lived in that house through the 40s, 50s and so forth, or?
A: [Leathers] Yes. When I moved out of the house across the street, I moved in the house that Holly Shuey lives in now and I don’t have my dates quite exact---but I know I was in there before 1964 and I was in there after 1964. Now I was there for probably, in the neighborhood of 4 to 5 years.
Q: Did you rent that property?
A: Yeah, I rented that off of Barnhart ******
Q: Do you remember when you moved out? Is that when Holly Shuey moved in?
A: Yeah. She moved ... I ... Correct me there. I moved out and she moved in shortly after, now I think the house sat empty a few months before she moved in. I would say I moved out probably right around in ’66 [sic] if I remember correctly.
******

(emphasis added).

Leathers testified that he and his family parked cars in the driveway, and he noted that the driveway was the only means of access to the coal chute at the back corner of the house. Leathers further noted that Glenn never used the driveway because there was a garage situated directly on the driveway approximately 40 feet behind the Shueys’ house.

In their appellate brief, the Shueys argue that Leathers’ testimony clearly establishes that their predecessors in title claimed title to the driveway. While Leathers’ testimony demonstrates continuous use of the driveway, it is unclear whether he occupied the Shuey home during June, 1967, the month preceding the Shueys’ acquisition of parcel B. Leathers noted that he believed that the Shuey home may have been empty for a few months before Holly Shuey moved in and that he probably moved out sometime in 1966. Hence, our determination of whether there exists sufficient privity between the Shueys and their immediate predecessors is contingent upon whether John and Tracie Barnhart asserted ownership rights over the gravel driveway. Plott, supra; Wittig, supra.

In Plott, there was no privity between Cole and his predecessors because none of Cole’s predecessors asserted ownership to the disputed property nor did they express an intention to convey anything more than what was set forth in their respective deeds. Plott, 377 Pa.Super. at 596, 547 A.2d at 1222. Likewise, in the instant case, the Barnharts’ deed makes no mention of the disputed tract, and the record offers no indication that they intended to convey the gravel driveway to the Shueys. Id.; Stark, supra. The Shueys have not shown privity by the bare taking of the possession of the driveway which was previously occupied by Leathers until some undetermined date. Plott, supra; Wittig, 370 Pa.Super. at 589, 537 A.2d at 31-32 (“... nor is privity created by the bare taking of possession of land previously occupied by the grantor.”). The Shueys note that by statute in this Commonwealth all appurtenances, unless specifically excepted in a deed, are passed to the next owner. See 21 P.S. § 3. The Shueys rely upon a nineteenth century case, Scheetz, supra, in support of their conclusion that the deed by which they acquired title to parcel B did not necessarily have to include a description of the driveway. In Scheetz our supreme court opined that a mill-pond held under a base fee, no longer used in conjunction with a mill and occupied adversely as arable land, passed under a conveyance of the mill with its appurtenances. Scheetz, 5 Pa. at 132.

Here, the Shueys have made no showing that they possessed the driveway in a manner adverse to Glenn. Unlike the party claiming adverse possession of the filled in mill-pond in Scheetz, the Shueys have failed to demonstrate that the driveway was an appurtenance belonging to parcel B. To the contrary, a review of the record indicates that the Shueys and their predecessors may have used the gravel driveway with Glenn’s permission. Compare Ste venson v. Williams, 188 Pa.Super. 49, 145 A.2d 734 (1958) (en bane) (evidence insufficient to establish prescriptive easement rights in appellees’ use of driveway where their use of the driveway and their predecessors’ use began and continued as a result of friendly and accommodating permission by appellants) with Waltimyer v. Smith, 383 Pa.Super. 291, 556 A.2d 912 (1989) (title owner of portion of driveway located on border of abutting property failed to demonstrate that abutting landowner’s use of common driveway was permissive); see also Garret v. Jackson, 20 Pa. 331 (1853); Walley v. Iraca, 360 Pa.Super. 436, 520 A.2d 886 (1987); Adshead v. Sprung, 248 Pa.Super. 253, 375 A.2d 83 (1977) (en banc). For example, prior to the Shueys’ separation, Glenn ordered the removal of an antenna which had been placed on the Glenn side of the driveway. Glenn indicated that Ron Shuey complied with his request. Glenn also noted that he directed a bulldozer operator to utilize the driveway in 1962 to gain access to the rear of his property for the purpose of digging out a cesspool. He also stated that he used the driveway at various times for heavy hauling. Hence, it does not appear that the Shueys or their predecessors in title kept their respective “flags flying” in an attempt to prevent Glenn from utilizing the gravel driveway. Klos, 355 Pa.Super. at 402, 513 A.2d at 492.

Although not expressly stated in his opinion of July 25, 1989, it appears that Judge Grine characterized the Shueys’ use of the driveway as “permissive.” Stevenson, supra. We agree with his determination that the testimony adduced during the trial not only supports Glenn’s ejectment action but also defeats any claim by the Shueys against the entire disputed tract. Conneaut Lake, supra; Klos, supra. Cf. Miles v. Pennsylvania Coal Co., 245 Pa. 94, 91 A. 211 (1914) (line created must be recognized and acquiesced in as boundary by adjoining landowners).

The Shueys also rely on Hughs v. Pickering, 14 Pa. 297 (1850), for the proposition that when a subsequent holder enters property with the permission of the previous holder, the former has the right to tack one possession to another. In Hughs, the plaintiff, John Pickering, brought an action in ejectment to recover possession of a tract of land which he owned but which was occupied by Hughs. Hughs had acquired the property from Mrs. Bartlett for the sum of approximately $5.00. Subsequently, Bartlett gave half of this sum to George Mason, her brother. At trial, Mason testified that he had chopped logs, saplings and brush on the disputed property in addition to erecting a ten by twelve foot shanty on the property. The issue in Hughs was whether Hughs had the right to tack Mason’s possession of the tract to his own in order to satisfy the 21 year requirement for establishing title by adverse possession. Our supreme court held that Pickering was not entitled to oust Hughs from the portion of the tract which had been improved by Mason, as Hughs had established title to the property by adverse possession. Id. at 302. The court opined that it was not necessary that Mason actually possess the disputed tract at the time of the sale in order to preserve the continuity of possession between Hughs and Mason. Writing for the unanimous court, Justice Rogers observed:

Had Mason abandoned the property absolutely, or had Hughs taken possession without authority, these would present such a case of want of continuity as would be fatal to the defence [Hughs’ defense].

Hughs, 14 Pa. at 301 (emphasis added). That Hughs paid consideration for and took possession of the disputed tract pursuant to an agreement of sale were critical factors in the court’s analysis.

Here, in contrast, it does not appear that the Shueys were authorized to use the driveway by anyone other than Glenn. Hence, Hughs does not support the Shueys’ claim that they had established privity between themselves and their predecessors in title to parcel B. Consequently, the Shueys may not tack the adverse possession of their predecessors onto their use of the gravel driveway. Plott, supra; Wittig, supra. The Shueys have therefore failed to show that they had “actual, continuous, exclusive, visible, notorious, distinct and hostile possession” of the gravel driveway for twenty-one years. Conneaut Lake, 362 Pa. at 594, 66 A.2d at 829-30. We find no error of law or abuse of discretion. Arcadia, supra; Bingham, supra.

Judgment affirmed.

APPENDIX

      . Subsequent to the initiation of this action, the Shueys separated.

      . Judge Grine based this finding on what he perceived to be a deficiency in the Henry survey. The surveyors for both parties testified that older monuments are preferable in preparing accurate surveys. The trial court stated that the Uhler survey referred to a relatively old chestnut tree line, and all its boundaries were consistent with that line. In contrast, the court noted, the Henry survey, although recognizing the chestnut tree line, failed to reconcile it with the boundary between the parties’ properties. Rather, the Henry survey relied upon an iron pin which had been placed in the ground within five years prior to the trial, and, by Henry’s own admission, was located at least five to six feet northeast of its proper location.

      . The foundation for title by adverse possession in this Commonwealth is Act of March 26, 1785, 2 Sm.L. 299, § 2, 12 P.S. § 72 (repealed) which provided:
      § 72. No entry or right of entry of action allowed after twenty-one years.
      From henceforth no person or persons whatsoever shall make entry into any manors, lands, tenements or hereditaments, after the expiration of twenty-one years next after his, her or their right or title to the same first descended or accrued; nor shall any person or persons whatsoever have or maintain any writ or right, or any other real or possessory writ or action, for any manor, lands, tenements or hereditaments, of the seisin or possession of him, her or themselves, his, her or their ancestors or predecessors, nor declare or allege any other seisin or possession of him, her or themselves, his, her or their ancestors or predecessors, than within twenty-one years next before such writ, action or suit, so hereafter to be sued, commenced or brought.
      12 P.S. § 72.
      Section 72 has been recodified in Title 42 as follows:
      § 5530. Twenty-one year limitation.
      (a) General Rule.—The following actions and proceedings must be commenced within 21 years:
      (1) An action for the possession of real property.
      ******
      42 Pa.C.S. § 5530.

      . Glenn contends that the trial court’s order of September 26, 1989 was final, and consequently, the time period for filing an appeal began to run on that date. According to Glenn, the Shueys’ letter of September 28, 1989 did not have the effect of extending the time within which they were required to file their notice of appeal. Consequently, Glenn argues, the Shueys’ appeal, filed November 9, 1989, is untimely. See Pa.R.A.P. 903(a). We disagree.
      While the orders of September 26, 1989, and October 10, 1989 denied the Shueys’ motion for post-trial relief, neither order entered judgment in favor of Glenn or directed the prothonotary to do so. See Pa.R.C.P. 227.4. The appellate rules make it clear that an appealable order is one entered on the trial court docket following the disposition of post-trial motions. See Pennsylvania Rule of Appellate Procedure 301(c), (d). Similarly, Pennsylvania Rule of Civil Procedure 227.4, which applies to actions at law and in equity, tried with or without a jury, provides:
      ____ [Tjhe prothonotary shall, upon praecipe of a party:
      ******
      (2) enter judgment when a court grants or denies relief but does not itself enter judgment or order the prothonotary to do so.
      Pa.R.C.P. 227.4
      Here, as stated above, neither of the trial court’s orders entered judgment or directed the prothonotary to do so. Glenn filed his praecipe on November 2, 1989, requesting that the order of October 10, 1989 be entered as a final decree and judgment. Since the trial court apparently did not enter the order as a final judgment, this court ordered the trial court to do so by a per curiam order dated April 26, 1991. Judgment was entered May 20, 1991. Consequently, the notice of appeal previously filed November 9, 1989, will be treated as filed after the entry of judgment. See Pa.R.A.P. 905(a). Hence, the Shueys have not waived their appellate rights.

      . There may be actual possession of real property under an infinite variety of circumstances. For example, actual possession may be established in connection with a residence, Klos v. Molenda, 355 Pa.Super. 399, 513 A.2d 490 (1986) (adverse possessors continuously maintained strip of lawn in connection with their residence), by virtue of the claimant's cultivation of the land, M'Caffrey v. Fisher, 4 Watts & Serg. 181, 182 (1842) (intruder acquired title to portion of property by cultivating property for a period of 21 years); Schoen v. VanHart, 29 Pa.D. & C.3d 616 (1983) (possessor, who, although occupying parcel of property without title, acquired parcel by adverse possession where he cultivated specific variety of trees for 21 years and enclosed the subject parcel); Heacock v. Rawn, 93 Montg. 239, 240 (1970) (cultivation of unimproved land constitutes “actual possession” of property); 3 Am.Jur.2d §§ 30-33, at 119-122, by inclosure of lands, Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932) (dictum) (enclosure of property by fence can be sufficient to establish title to property by adverse possession but only if fence is continuously and substantially maintained for 21 years so that it constitutes an assertion “against the world" of claimant’sDownership); Schoen, supra, or by making improvements on the property and paying the property taxes. McCall v. Neely, 3 Watts 69 (1834) (party who, without color of title, entered land, cleared trees, made improvements and paid taxes on entire tract for 21 years vested title to the tract in himself). Cf. Criswell v. Altemus, 7 Watts 565, 579-580 (1838) (trial court erred in instructing jury that defendant could not establish an ouster of plaintiff from property where defendant showed that he entered plaintiffs land without color of title, claimed the land as his own, erected buildings, cultivated the land and paid the property taxes for more than 21 years); see also 3 Am.Jur.2d § 34 (pasturing or grazing of lands sufficient to constitute possession necessary for establishing title by adverse possession); Id. at § 35 (cutting of timber sufficient to establish dominion over property); Id. at § 38 (adverse possession evidenced by combination of using land for grazing, cultivation, gathering natural crops and removal of timber).

      . We recognize that in the middle of the nineteenth century, Chief Justice Gibson, in Scheetz v. Fitzwater, 5 Pa. 126 (1847), held that a purchaser of record title to certain land may acquire his grantor’s possession of land not described in the conveyance, and thereby tack his grantor's possession to his own. Id. at 132.
      Subsequent cases, however, contain contrary language, and in 1941 this court held that acceptance of a deed containing boundary lines confines the premises to the area within the boundaries so that the grantee could not tack his grantor’s possession of lands not described in the deed. Masters v. Local Union No. 472, United Mine Workers, 146 Pa.Super. 143, 145, 22 A.2d 70, 71-72 (1941). In Gerhart v. Hilsenbeck, 164 Pa.Super. 85, 63 A.2d 124 (1949), this court, relying on Masters, held that a deed could not convey the grantor’s rights, by adverse possession in land outside the description, but recognized an exception in cases such as Scheetz, where "an intent to convey more than the described premises may be inferred from the circumstances, and perhaps from the deed itself.” Gerhart, 164 Pa.Super. at 89-90, 63 A.2d at 126-127.

      . This court noted that the language in the deeds clearly indicated that the stairway west of the partition wall was part of 157 Ann Street, with an easement for use of the stairway in favor of 155 Ann Street. Plott, 377 Pa.Super. at 591, 547 A.2d at 1219.

      . The court summarized the doctrine of consentable line by acquiescence as follows:
      If adjoining landowners occupy their respective premises up to a certain line which they mutually recognize and acquiesce in for the period of time prescribed by the statute of limitations, they are precluded from claiming that the boundary thus recognized and acquiesced in is not the true one.

        Id., 377 Pa.Superior Ct. at 593, 547 A.2d at 1221 (citations omitted).

      . Bitner indicated that it was always his view that Glenn owned half of the driveway. Bitner also noted that his father asked Glenn for permission to erect scaffolding on the driveway for the purpose of constructing a flue. On cross-examination, Bitner stated that to his knowledge, Glenn neither drove nor parked his vehicles upon the gravel driveway. Bitner also stated that his family, rather than Glenn, removed the snow from the driveway during the winter months.