author: DEL SOLE, Judge: WIEAND, Judge,

text:
    549 A.2d 221
    Richard D. KLOPP and Sylvia J. Klopp, Appellees, v. KEYSTONE INSURANCE COMPANIES, Charles F. Grimm and the North Central Motor Club Insurance Agency. Appeal of KEYSTONE INSURANCE COMPANIES, Appellant.
    Superior Court of Pennsylvania.
    Argued June 15, 1988.
    Filed Oct. 19, 1988.

      Robert A. Gallagher, Williamsport, for appellant.
    Norman Lubin, Williamsport, for Grimm and North Cent., appellees.

      Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

The courts of this Commonwealth have, once again, been asked to consider the question of whether a material misrepresentation contained in an application for automobile insurance will permit the insurance company to rescind the policy it issued to the applicant when the misrepresentation is later discovered. In three previous decisions the answer has been in the negative and insurers have not been allowed to rescind the policy. Following the lead of these cases, we too find that an insurer who later learns of an applicant’s failure to disclose information material to the risk is not permitted to rescind the policy as a contract which is void ab initio.

In the instant action, Appellant, Keystone Insurance Company, issued a binder to Appellees on the same day they applied for automobile insurance. The next day, Appellee, Sylvia Klopp, was involved in an automobile accident. Within a month Appellees received from Keystone both an automobile policy with a insurance identification card, and notification that Keystone was rescinding the binder and policy accompanied by the return of Appellee’s premium deposit. Keystone’s refusal to provide insurance and the basis for its attempt to rescind the policy were based upon certain material misinformation supplied on the Appellees’ insurance application. When presented with cross-motions for summary judgment, the trial court ruled that rescission, as opposed to cancellation, is not a remedy available to an insurer such as Appellant. The trial court’s ruling obligating Keystone to insure Appellees for the accident is contested by Keystone because it maintains that there exists a common law right to rescind a policy which is based upon a misrepresentation and is void ab initio.

The identical claim, when presented to two separate panels of the Commonwealth Court, was rejected. In a consolidated appeal before the Pennsylvania Supreme Court, the Commonwealth Court’s decisions were affirmed. Metro. Prop. & Liab. v. Insurance Com'r, 517 Pa. 218, 535 A.2d 588 (1987). In an Opinion Announcing the Judgment of the Court, Justice McDermott provides sound rationale for the conclusion that Act 78, 40 P.S. §§ 1008.1-1008.11, was intended to supersede all common law rights and remedies and that the insurer was able to terminate an automobile insurance policy solely by the means provided under the statute. See also Metro. Prop. & Liability v. Ins. Dept., 113 Pa.Commw.Ct. 150, 537 A.2d 53, 55 (1988). The case before the Supreme Court was heard by 6 justices and the opinion of Justice McDermott was joined by one justice. One justice concurred in the result and two justices joined in a concurring opinion authored by Chief Justice Nix. In the Concurring Opinion, Chief Justice Nix declined to agree that insurers are to be foreclosed from rescinding policies and, instead, reasoned that the Commonwealth Court’s rulings should be affirmed since the misrepresentations in the two cases before the court were not material to the claimed loss. Because the Opinion of Justice McDermott was not adopted by a majority of the Court, it is not binding precedent, nevertheless its persuasive value is to be considered. Commonwealth v. Covil, 474 Pa. 375, 380-381, 378 A.2d 841, 844 (1977).

The rationale provided in the Opinion Announcing the Judgment of the Court details convincing reasons why an insurer cannot elect to rescind a policy and instead must comply with Act 78 in order to terminate a policy. The Supreme Court Opinion deals with this situation as follows: it looks to the policy and rationale behind the Act; it makes reference to limiting access to the courts; it provides expert and expeditious forums for resolving claims; it prevents unscrupulous insurers from bargaining down claims by threats of rescission; and it encourages insurers to perform better and more efficient investigations prior entering into a contract. As stated, we find this reasoning persuasive and will not seek to repeat it herein. The ground in this area has been thoroughly plowed, we see no need to duplicate the task.

The Opinion authored by Justice McDermott also treats and dismisses a further claim now presented by Appellant. Keystone asserts that Act 78 does not apply under the facts of this case because it returned the premium deposit and rescinded the policy and binder 56 days after the binder was issued and 36 days after issuance of the policy. Since Act 78 states that it shall not apply to policies which have been in effect less than 60 days, Appellant reasons that Act 78 has no application to the present factual situation. 40 P.S. § 1008.6(3).

This issue was also presented in the cases before the Supreme Court, and it was likewise rejected. In concluding that this claim is meritless, Justice McDermott cited an exception in the Act which requires an insurer who desires to cancel a policy within sixty days of its existence to supply the insured with a written statement of the reason for cancellation. 40 P.S. § 1008.6(3). With respect to Appellant’s claim the Opinion states: “However, this argument ignores the explicit language of the exception which clearly indicates the legislative intent to govern the termination of policies even during the sixty day period. Although that language prescribes only minimal procedures to be followed, it nevertheless clearly prescribes what an insurer must do.” Metro. Prop. & Liab. v. Insurance Com’r, supra, at 230, 535 A.2d at 594 (footnote omitted).

We now turn to Appellant’s remaining claim. It rightly asserts that the trial court erred in awarding Appellees’ counsel fees. Although the trial court awarded these fees, it provided no rationale for its award.

Section 1798 of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A., provides for an award of reasonable attorney fees “in the event an insurer is found to have acted with no reasonable foundation.” A similar provision was contained in Section 1009.107(3) of the now repealed No-Fault Act. In interpreting the terms contained in the No-Fault Act, it has been held that “an insurer lacks a reasonable basis for denying a particular claim if an appellate court has already held that such a claim is payable”. Rago v. State Farm Mut. Auto. Ins. Co., 355 Pa.Super. 207, 214, 513 A.2d 391, 395 (1986). “However the general rule has an exception. Where an issue ... is accorded review by the Pennsylvania Supreme Court, the insurer can assert that it possessed a reasonable basis for denying benefits before the Supreme Court rendered its decision.” Id., citing, Wingeart v. State Farm Mutual Automobile Insurance Co., 340 Pa.Super. 420, 490 A.2d 849 (1985).

The underlying action in this case was initiated by Appellees in 1985 seeking to have their rights to coverage declared under the policy. Keystone’s refusal to honor Appellees claim was made prior to the Commonwealth Court’s decision on this issue announced in May of 1986. Metropolitan Property and Liability v. Com., 97 Pa.Commw.Ct. 219, 509 A.2d 1346 (1986). Keystone’s appeal from the trial court’s ruling was filed before the Supreme Court affirmed the Commonwealth Court’s ruling. Although the decision from the Pennsylvania Supreme Court was announced prior to briefing and oral argument on this appeal, as previously noted, the Supreme Court’s opinion was not joined in by a majority of the Justices. Under these circumstances we find Keystone’s pursuit of a favorable ruling did not lack a “reasonable basis.” Further, the trial court has not provided us with any facts from which it could have concluded that Keystone acted in bad faith or in a dilatory, obdurate, arbitrary, or vexatious manner. See 42 Pa.C.S.A. § 2503. Accordingly, we conclude that the trial court erred in awarding Appellees’ attorney fees, and we vacate that portion of trial court’s order which directs that Keystone be held responsible for the counsel fees incurred in this action.

Judgment affirmed in part. Judgment reversed and vacated in part. Jurisdiction relinquished.

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

WIEAND, Judge,

concurring and dissenting:

Although I concur in the decision of the majority to vacate the award of counsel fees, I dissent from the majority’s holding that a fraudulently obtained policy of automobile insurance cannot be rescinded. In the absence of a controlling decision by the Supreme Court, I would adopt and follow the reasoning of the Concurring Opinion authored by Chief Justice Nix in Metropolitan Property and Liability Insurance Co. v. Insurance Commissioner, Commonwealth of Pennsylvania, 517 Pa. 218, 535 A.2d 588 (1987) and hold that an insurer may assert the well recognized right to rescind ab initio a policy of insurance upon learning that the application therefor contained misrepresentations material to the risk.

In this declaratory judgment action, the parties have stipulated to most of the facts. On February 7, 1985, Richard D. Klopp and Sylvia J. Klopp applied to Keystone Insurance Co. (Keystone) for a policy of insurance providing coverage for their 1981 Subaru station wagon. Keystone issued a binder the same day. On February 8, 1985, Sylvia Klopp was involved in a vehicular accident while driving the insured vehicle. The policy was issued and received by the Klopps on February 27, 1985.

On April 4, 1985, less than sixty days after issuance of the binder, Keystone returned the premium and gave notice that it had rescinded the policy ab initio because of material misrepresentations contained in the application. Despite requests for information regarding driving histories, the applicants failed to disclose that Richard Klopp had been issued two speeding tickets within the preceding three years and that Sylvia Klopp had been involved in a prior accident within the same period. The parties, as part of their stipulation, agreed that these misrepresentations had been material to the risk, and that if this information had been known to Keystone, a policy of automobile insurance would not have been issued.

Whether a policy of vehicular insurance issued upon material misrepresentations by the applicant can be rescinded ab initio or merely cancelled upon discovery of the fraud, as the majority has observed, was considered by the Supreme Court in Metropolitan Property and Liability Insurance Co. v. Insurance Commissioner, Commonwealth of Pennsylvania, supra. With respect to this issue, however, the Court could not agree. Two justices were of the opinion that, by statute, the legislature had determined to limit an insurer’s relief, where it had been fraudulently induced to issue a policy, to cancellation. Three justices, however, were of the opinion that the well recognized right to rescind ab initio under such circumstances had not been abrogated by the legislature. Nevertheless, they concurred in the decision to disallow rescission because, in their judgment, the applicant’s misrepresentations had not been material to the risk. A single justice concurred in the result without opinion. Thus, although the Court’s decision was unanimous, the members thereof did not agree upon the rationale for their decision. The Court’s decision, therefore, does not have precedential value with respect to the issue now before this Court.

A majority of this panel would follow the opinion of the two justices who opined that the right of rescission had been abrogated by the legislature. I would follow the view that the false procurement of a policy of insurance, which may well be a criminal act, is also grounds for rescinding the policy ab initio. Any other result can serve only to encourage fraud. This, in my judgment, was not the intent of the legislature.

In the instant case, the parties are agreed, and the majority of this Court concedes, that the misrepresentations made by the applicants pertained to their driving records and were material to the risk which Keystone was being asked to assume. Under these circumstances I would hold that Keystone is entitled to rescind its policy ab initio. To the extent that the majority of this Court holds otherwise, I respectfully dissent.

      . Contrary to Appellant’s position the fact that this case arises under the provisions of the Motor Vehicle Financial Responsibility Act, 75 Pa.C.S.A. § 1701 et seq., as opposed to the now repealed No-Fault Act, does not mandate a result different from that reached by the Supreme Court in Metro. In the Opinion Announcing the Judgment of the Court, the conclusion that Act 78 provides the exclusive means by which a Pennsylvania insurance company can sever its ties to an insured party was not reached based upon any provisions found in the No-Fault Act. Rather, the legislative intent and the policy concerns behind Act 78 were considered.


source: Caselaw Access Project

author: BROSKY, Judge: JOHNSON, Judge,

license: Public Domain

text:
    549 A.2d 225
    Michol Lea LEASURE v. James Paul LEASURE, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 5, 1988.
    Filed Oct. 18, 1988.

      John H. Moore, Erie, for appellant.
    ■ Marilyn Woolery, Assistant District Attorney, Erie, for appellee.
    Before BROSKY, JOHNSON and WATKINS, JJ.
   BROSKY, Judge:

This is an appeal from an order entered by the trial court denying appellant’s petition for modification or suspension of child support payments during the period of appellant’s incarceration.

The issue currently before this court is: whether the trial court erred in refusing to suspend and/or modify the order of support. We respectfully reverse the decision of the trial court and remand this case with instructions.

An appellate court will not overturn a support order entered by the trial court absent an abuse of discretion. Commonwealth ex rel. Eppolito v. Eppolito, 245 Pa.Super. 93, 369 A.2d 309 (1976). However, we must bear in mind that we have before us a case of first impression at the appellate level. Thus, the learned trial judge, while wrestling with this decision, had no appellate authority upon which to rely for guidance.

Appellant, through his attorney, appeared before the trial court on October 27, 1987, for a hearing on his petition to suspend the previously entered child support order. That order had directed appellant to pay $16.70 per week in child support for his minor child.

Appellant based his request for suspension of child support payments on his incarceration. He had been sentenced on August 4, 1987 to one to two years imprisonment for crimes unconnected to his support obligation.

Child support orders may be modified only when evidence produced at a hearing establishes a substantial change in circumstances. Jaskiewicz v. Jaskiewicz, 325 Pa.Super. 507, 473 A.2d 183 (1984). Further, the party seeking to modify a support order bears the burden of demonstrating such a change of circumstances as will justify a modification. Commonwealth ex rel. Haertsch v. Haertsch, 267 Pa.Super. 283, 406 A.2d 805 (1979). Thus, the burden is on appellant to prove a material change of circumstances.

The trial court, in denying appellant’s request for suspension/modification, reasoned that, not only is incarceration an act not sufficiently “permanent” to allow for modification, see Jaskiewicz, supra., but also, that because it was appellant’s voluntary act which put him behind bars, it is a situation analogous to a parent voluntarily reducing his salary to avoid paying support. See, Wing v. Wing, 338 Pa.Super. 516, 488 A.2d 11 (1985). We disagree.

While it is true that case law has stated that the record must show a “permanent change in ... circumstances”, see, Brake v. Brake, 271 Pa.Super. 314, 413 A.2d 422 (1979), Bell v. Bell, 228 Pa.Super. 280, 323 A.2d 267 (1974), the cases did not specifically define “permanent”. Rather, the Court failed to find any material change in circumstances, thus, leaving the issue of permanence unaddressed.

Instantly, appellant was sentenced to serve 1 to 2 years in prison. While appellant may only serve 9 months with pre-release, he may also serve the entire 2 year period. The period appellant will serve remained indefinite at the time of the hearing. We choose to compare this concept of permanence to the situation in which a parent loses his job. There, the parent’s “change in circumstances” is indefinite in that he may secure employment within a very short time, or he may continue to be out of work for several years. Thus, we will focus upon, not only the period of time involved, but also, the definiteness of time and irreversibility of the circumstances, in our assessment of permanence. Accordingly, we do not feel that appellant’s motion should be denied because he will not be incarcerated for the remainder of his life.

As for the trial court’s analogizing incarceration to a' voluntary decrease in income, we cannot agree. Incarceration is usually an involuntary situation. While it may be possible to envision a parent avoiding child support by going to prison, we find it highly unlikely in the instant case, where appellant was paying $16.70 per week and where there were no allegations that appellant ever defaulted on his payments previously.

We must note here that, the rationale used by the trial court is identical to the reasoning used by the Supreme Court of Nebraska in Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985). There, the court refused to modify a support order when the father was incarcerated for “voluntary” criminal behavior. We agree with the trial court instantly that appellant was not forced to engage in criminal activity. We, however, are more persuaded by the dissent of Chief Justice Krivoska in Ohler, who recognized that barring an incarcerated and indigent parent from seeking a modification provides no present benefit to the child. Imposing upon the incarcerated parent a continuing support obligation, beyond his ability to pay, does not help the child. Rather, it simply adds to an accumulating burden which falls upon the parent when he is least able to bear it.

This same idea has been espoused by other jurisdictions who have refused to force an incarcerated parent to pay support unless that parent possesses another asset from which funds could be generated. Matter of Vetternack, 334 N.W.2d 761 (Iowa 1983) (Father had equity in a house to be used to provide support for his children); Foster v. Foster, 471 N.Y.S.2d 867, 99 A.D.2d 284 (1984) (Support payments suspended even where father had equity in a home, since court would not force wife to sell the home to meet father’s obligation); Matter of Edmonds, 53 Or.App. 539, 633 P.2d 4 (1981). (Parent is not liable for payments while incarcerated unless it is affirmatively shown that he or she has income or assets to make such payments).

With regard to appellant’s assets, the following exchange took place:

MR. MORTON: Do we know what other asset he might have, Judge, that would allow him to pay support.
THE COURT: Was he a PD client?
MR. MOORE: No, he was a private client. He wasn’t working at the time. His parents are friends of mine, and he didn’t have any real estate. I think he had a car but I think he sold it. As far as I know he has very few assets. He was working in a business for his parents and they were paying him. He will have employment again when he gets out of jail, there’s no question about that. But I don’t think there’s anything that would be of any use—
THE COURT: Does he get any money in jail?
MR. MOORE: Not as far as I know.
MRS. LEASURE: He gets paid and he told me he gets paid. I don’t know how much he does.
THE COURT: Twenty cents an hour.
THE SHERIFF: Highest is about sixty-five cents.
MRS. LEASURE: Which is nothing, but neither is what he pays.

(N.T. pp. 5 and 6). Admittedly, this does not appear to be an indepth probe of appellant’s assets, which this court would prefer. However, it does evidence the fact that appellant’s assets were considered by the trial court and that both sides had an opportunity to address the issue. Further, we must recall that the trial court did not base its decision denying relief upon appellant’s affirmative ability to pay, but rather upon the idea that appellant’s “voluntary” and “temporary” situation should afford him no relief. Thus, we are satisfied that appellant is unable to pay support during his incarceration.

We cannot, however, ignore the minor child’s needs or appellant’s overall duty to support his son. Therefore, while we cannot, in good conscience, force appellant to do the impossible by paying support from his prison cell, we will order the trial court, upon appellant’s release from prison and upon his securing a job, (which his attorney assured us would occur immediately upon his release), to review the support order which we are temporarily suspending. The trial court is to reassess appellant’s earning capacity, bearing in mind the fact that appellant’s son was forced to go without his father’s financial support for an extended period of time. Should the trial court then find the current order to be insufficient, we direct the trial court to enter an appropriate support order at that time.

Order of the trial court reversed. Order of support suspended with instructions to the trial court to review the order in accordance with this opinion. Jurisdiction relinquished.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I respectfully dissent. The majority opinion finds that the trial court erred in refusing to suspend the child support order of a father serving a term of imprisonment. I conclude that this record cannot support such a finding.

The procedural beginnings of the present action are somewhat muddied. No petition for modification of the existing 1984 child support order was actually filed. Pizza Plus, which is owned by the parents of appellant James Paul Leasure and was appellant’s employer, notified the Adams County Support Counseling Office that appellant would be incarcerated for approximately one year. Presumably this was done by way of explanation for the failure to attach appellant’s wages pursuant to the wage attachment ordered November 19, 1985 consisting of $22.00 weekly ($16.70 support, $3.30 arrears, $2.00 court costs). On August 16, 1987, the Hearing Officer recommended support payments in the amount of $16.70 weekly to remain in effect. By letter dated August 17, 1987 but docketed September 3, 1987, appellant raised objections to the recommendations of the Hearing Officer. In my view it is this letter from appellant that should be considered as his petition for modification. In his letter appellant states “I have never been unemployed until now. I am a hardworking individual and I will have employment again.” Appellant also states that “[w]hen I eventually reach Mercer [State Correctional Facility], I will definitely be working. At that time I will arrange to send Jeremy my obligation. The prison will be my employer and should deduct the payments from my earnings.”

On appeal appellant contends that the trial court erred in refusing to suspend and/or modify his child support order when the uncontradicted evidence established that he was incarcerated, without any income, and would continue to remain so for at least a.nine-month period.

In Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986), we summarized the principles governing modification of child support:

First, that the party seeking to modify a support order bears the burden of demonstrating such a change of circumstances as will justify a modification; second, that only material and substantial changes in circumstances, as proven by competent evidence, will warrant modification of a support order; and, third, that a modification may only be based upon facts appearing in the record which show such permanent change in circumstances as to require such modification. (Citations omitted.)

352 Pa.Super. at 547, 508 A.2d at 1209.

In proceedings to modify a support order, then, it is the petitioner who has the burden of proving that there has been a material change in circumstances sufficient to warrant modification of the existing order. Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983). It is well settled that we cannot disturb a trial court’s order of support absent a clear abuse of discretion. Shindel v. Leedom, 350 Pa.Super. 257, 264, 504 A.2d 353, 355-56 (1986). A finding of such abuse is not lightly made and must rest upon a showing of clear and convincing evidence. Id. The trial court must be upheld on any valid ground. Id.

The trial court analogized incarceration for willful criminal behavior to voluntary withdrawal from employment, concluding that in neither case will the parent be allowed to escape his or her duty of child support. I would uphold the decision of the trial court on a different rationale. In Matter of Vetternack, 334 N.W.2d 761 (Iowa 1983), upon which the majority relies the Iowa Supréme Court noted that current inability to pay has become less a consideration in actions to modify child support than long-term earning capacity. This can be compared to the requirement in this Commonwealth that “modification can only be based on a permanent change of circumstances.” In the present case, appellant, at the same time that he asks to have his support order suspended, implicitly attests that his permanent capacity to support his child will be unaffected. Counsel also assures the court that appellant will always have a job. In addition, appellant also informed the court that while incarcerated, he will arrange to have his prison wages forwarded to meet his child support obligation.

In Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985), Chief Justice Krivosha, dissenting, stated:

The fact that a parent is incarcerated should ... not, in and of itself, preclude a [trial] court from considering whether the facts justify a reduction in child support. Certainly, if the evidence reflects that the incarcerated parent has any assets, those assets should first be made available for the support of the child. But where, as here, it is made clear that at the present time the incarcerated parent has no assets and can do nothing about paying the child support judgment, the [trial] court should, at a minimum, be permitted to consider that fact.

Id., 220 Neb. at 279, 369 N.W.2d at 619.

The majority asserts that it finds this dissent persuasive but ignores that Ohler involved a defendant who was incarcerated and indigent. The facts in the present case differ. This appellant has what appears to be guaranteed employment on release from prison in a family business as well as prison wages which he will use for child support. Notwithstanding this difference, the majority concludes that appellant is unable to pay support during his incarceration. An examination of the testimony upon which the majority relies does not support this conclusion.

MR. MORTON: Do we know what other asset he might have, Judge, that would allow him to pay support.
THE COURT: Was he a PD client?
MR. MOORE: No, he was a private client. He wasn’t working at the time. His parents are friends of mine, and he didn’t have any real estate. I think he had a car but i think he sold it. As far as i know he has very few assets. He was working in a business for his parents and they were again when he gets out of jail, there’s no question about that. But I don’t think there’s anything that would be of any use—
THE COURT: Does he get any money in jail?
MR. MOORE: Not as far as I know.
MRS. LEASURE: He gets paid and he told me he gets paid. I don’t know how much he does.
THE COURT: Twenty cents an hour.
THE SHERIFF: Highest is about sixty-five cents.
MRS. LEASURE: Which is nothing, but neither is what he pays.
THE COURT: I’ll take a look at it. If you find anything, John, let me know.
MRS. LEASURE: It means what you are doing is? THE COURT: The arrears will accumulate.
MRS. LEASURE: Until?
THE COURT: Until he gets out and then we will have him and see what he’s doing and have money put forward to pay arrears....

(N.T. 10/27/87 at 5-6).

These testimonial speculations are not facts of record. The record fails to indicate whether the attorney, Mr. Moore, who spoke on behalf of appellant was actually representing appellant or appellant’s parents, since no appearance was entered.. Nevertheless, the majority appears to consider his unsworn conjecture as the equivalent of facts of record.

I agree with Chief Justice Krivosha that incarceration, in and of itself, does not support a petition to modify an order of child support. In the present case, I find that the incarcerated appellant has failed to meet his burden to prove by competent evidence that modification of the child support order is warranted. Appellant having failed to meet his burden of proof, I would affirm the trial court on the basis that appellant has suffered no material change in his ability to provide long term support to his child.

For the foregoing reasons, I dissent.

      . Appellant had been sentenced to a term of one to two years’ imprisonment at the Mercer State Correctional Facility on August 4, 1987.

      . The trial court treated this letter as exceptions pursuant to Pa.R.C.P. 1910.12(e). If these objections are considered exceptions, they were untimely filed and we are without jurisdiction to hear this appeal. Pa.R.C.P. 1910.12(e) provides that matters not covered by exceptions filed within ten days after the date of the hearing officer's report are deemed waived.

      . Arguendo, if the Adams County Sheriff has correctly stated the wage rate at Mercer State Correctional Facility as sixty-five cents ($.65) an hour, appellant will earn gross wages of $26.00 working a forty-hour week, $22.75 working a thirty-hour week.

      . I would accordingly allow any arrearages to accrue, without prejudice to appellant’s right to petition for remission of the accrued arrearages upon his release from prison with the proviso that appellant’s prison wages are forwarded to the Adams County Court to meet his child support obligation.


author:
KELLY, Judge:
      CAVANAUGH, Judge,

text:
    549 A.2d 231
    COMMONWEALTH of Pennsylvania v. Donald MONAHAN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1988.
    Oct. 26, 1988.

      Thomas M. Dickey, Altoona, for appellant.

      Keith A. Presto, Assistant District Attorney, Hollidaysburg, for Com., appellee.
    Before CAVANAUGH, ROWLEY and KELLY, JJ.
   KELLY, Judge:

In this case, we are called upon to determine whether an appellant’s pre-arrest refusal to explain his appearance at a state police barracks with a dead body and the murder weapon in his automobile may be admitted into evidence, and whether appellant’s post-arrest refusal to submit to a neutron activation test to determine whether he had recently fired a gun may be admitted into evidence. Despite appellant’s objections on constitutional grounds, we find as to both of these issues that the evidence was admissible.

On March 23,1982, at 1:40 a.m., appellant appeared at the Pennsylvania State Police Barracks at HoJlidaysburg, Pennsylvania, and informed the desk officer on duty that he wanted to report a dead body. He further indicated to the trooper that the body was in the automobile parked in front of the barracks. Two other troopers went out to the automobile and discovered the body of the victim, a young woman, located in the passenger’s side of the front seat. The victim had been killed by a single gun shot wound to the left side of the head. In addition, the murder weapon, a hand gun, was found in the automobile beside the victim. The weapon was later determined to have been stolen from its owner several years prior to the subject incident.

On the same day, a criminal complaint was filed, charging appellant with homicide, aggravated assault, recklessly endangering another person and receiving stolen property. Appellant was subsequently tried and convicted on all offenses; the homicide charge was determined by the jury to be first degree murder. A sentencing hearing was conducted on the first degree murder conviction, after which the jury returned a sentence of life imprisonment. Both post-trial motions and supplemental post-trial motions filed by new counsel were denied after a hearing. Appellant was sentenced to a term of life imprisonment on the first degree murder conviction and to a consecutive period of one to five years imprisonment on the receiving stolen property conviction. This timely appeal follows.

On appeal, appellant raises twelve separate issues in support of its contention that the trial court erred in failing to grant appellant’s post-trial motion for a new trial. We have reviewed the voluminous record, the briefs of the parties, and the well-reasoned opinion of the Honorable Richard A. Behrens. In this opinion, we shall address only two of the issues raised by the appellant. First, we will consider appellant’s contention that the trial court erred in admitting evidence of his pre-arrest silence. Second, we will consider appellant’s contention that the trial court erred in admitting evidence of his post-arrest refusal to submit to a neutron activation test. These contentions present issues of general significance to the public which warrant further examination. With respect to the ten remaining issues, we affirm on the basis of the trial court opinion.

I.

Appellant contends that the trial court erred in charging the jury that appellant’s failure to give an explanation to the police at the state police barracks as to what had occurred could be considered by the jury to assess appellant’s credibility. Testimony reveals that after appellant reported a dead body in his automobile parked outside the barracks, two police officers went out to investigate. At least one officer, Trooper William Emeigh, remained inside the barracks with appellant. Trooper Emeigh questioned appellant as to his name and address, which was obtained. However, when Trooper Emeigh asked appellant what had happened, appellant refused to answer.

The trial court charged the jury as follows:

... [Y]ou have heard evidence in this case concerning the failure of the defendant to give an explanation to the police at the State Police barracks as to what had occurred and also evidence regarding asking for an attorney or asking to speak with his attorney. You are hereby directed that a defendant’s silence and/or his request for an attorney or to speak to an attorney is not any evidence of guilt whatsoever and should not be considered as such. A defendant’s silence prior to being advised of his constitutional rights and prior to being taken into custody, however, may be considered in connection with a jury’s assessment of defendant’s credibility as a witness in this case in conjunction with all the other factors bearing on credibility but only for the purpose of credibility and only if you are satisfied that under all the circumstances then and there existing an explanation would naturally have been given by the defendant.

(N.T. 11/5/82 at 571-572). Appellant contends that this charge is inconsistent with the law of this Commonwealth.

Appellant alleges that his silence during the circumstances related above was not pre-arrest silence but rather post-arrest silence. In either event, appellant contends that Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), is dispositive of this issue. In Turner, our Supreme Court found as follows.

Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related this version to the police at the time of arrest when in fact he remained silent. (Citations omitted). Absent such an assertion, the reference by the prosecutor to previous silence is impermissible and reversible error.

499 Pa. at 583, 454 A.2d at 539, 540. (Emphasis added). The court in Turner ruled that if a defendant remains silent after his arrest but prior to receiving Miranda warnings, his silence cannot be used to impeach his trial testimony. In the instant case, however, the trial court determined that appellant’s silence occurred at a pre-arrest stage.

An arrest may be accomplished by any act that indicates an intent to take an individual into custody and subject him to the control and will of the person making the arrest. Commonwealth v. Lovette, 498 Pa. 830, 450 A.2d 975 (1982) cert. denied 459 U.S. 1178, 103 S.Ct. 803, 74 L.Ed.2d 1025 (1983). An arrest may be effectuated without the actual use of force and without a formal statement of arrest. Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237 (1974); Commonwealth v. Douglass, 372 Pa.Super. 227, 539 A.2d 412 (1988).

The test is an objective one, i.e., viewed in the light of the reasonable impression conveyed to the person subjected to the seizure rather than the strictly subjective view of the officers or the persons being seized.

372 Pa.Superior Ct. at 241, 539 A.2d at 419. (Citations omitted). Finally, whether an encounter is to be deemed ‘custodial’ must be determined with reference to the totality of the circumstances. Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987); Commonwealth v. Lovette supra; Commonwealth v. Douglass, supra.

After appellant reported the dead body and before the officers returned from checking appellant’s car, appellant had not been arrested. The police had no corroborative information that there was a dead body in the car or any information that a murder might have occurred. Appellant had not suggested that he or anyone else had committed a crime. No physical or verbal restraints were placed upon appellant, nor had he yet been given his Miranda warnings. At that juncture, neither a formal arrest nor a custodial detention had occurred. Therefore, use of appellant’s silence during that time period by the Commonwealth to impeach appellant’s credibility as a witness did not violate appellant’s Fifth Amendment right against self-incrimination. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985). The charge given by the trial court correctly stated the applicable law.

II.

Appellant next contends that the trial court erred by permitting the Commonwealth to introduce testimony of appellant's refusal to submit to a neutron activation test. At trial, testimony presented by the Commonwealth indicated that the results of the neutron activation test on appellant were negative. (N.T. 11/3/82 at 249). Trooper Lingenfelter explained, however, that the test was only effective if administered within two hours of the discharge (N.T. 11/3/82 at 193), and that appellant had refused to submit to the test between 2:30 a.m. and 3:00 a.m., on the morning appellant had appeared at the barracks, thus the test was not administered until 4:00 a.m. after a search warrant was finally obtained to proceed with the test. (N.T. 11/3/82 at 211). In his testimony, Trooper Lingenfelter explained further that a subject could remove the minute particles of barium and antimony by rubbing his hands together, by washing his hands or by putting his hands in his pockets. (N.T. 11/3/82 at 193). The inference the Commonwealth sought from this evidence was that appellant exhibited a consciousness of guilt in resisting the test, that appellant feared the test might reveal his guilt.

Appellant advances two theories in support of his contention that the trial court erred by permitting introduction by the Commonwealth of testimony concerning appellant’s refusal to submit to a neutron activation test. First, appellant argues that such testimony violated Pa.R.Crim.P. 305(B)(1)(b). Secondly, appellant argues that such testimony violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution.

A.

In support of his first theory, appellant alleges that because the pre-trial discovery statement received from the District Attorney’s office listed the result of the neutron activation test as negative, the Commonwealth could not introduce his refusal to submit to the test into evidence. Appellant argues that introduction of this evidence by the Commonwealth constituted a violation of Pa.R.Crim.P. 305(B)(1)(b). We do not agree.

The trial court accurately stated that appellant is complaining about the way the Commonwealth used the information it had disclosed to appellant and not the Commonwealth’s failure to disclose the evidence itself. (Trial Ct.Op. at 13). We agree with the trial court that the Commonwealth properly disclosed the evidence as required, and that the Commonwealth’s theory of the case was protected as work product under Pa.R.Crim.P. 305(G) and not subject to disclosure. Here, no violation of Pa.R.Crim.P. 305(B)(1)(b) occurred.

B.

Appellant contends, alternatively, that his refusal was barred from introduction into evidence by the Fifth and Fourteenth Amendments of the United States Constitution. We cannot agree.

Initially, we note that the gathering of evidence by conducting a neutron activation test is analytically indistinguishable from the gathering of evidence through such tests and procedures as blood tests, breathalyzer tests, handwriting exemplars and fingerprints. In such instances, the items sought and/or refused are not testimonial in nature, and consequently fall within the ambit of the Fourth Amendment, not the Fifth Amendment.

Though appellate courts of Pennsylvania have not previously dealt with this precise issue, we find that no error was committed in permitting admission of testimony regarding the appellant’s refusal to submit to the neutron activation test. In South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the United States Supreme Court held that the admission into evidence of a defendant’s refusal to submit to a blood-alcohol test does not offend the right against self-incrimination under the Fifth Amendment. The Court explained, “... that a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.” 459 U.S. at 564, 103 S.Ct. at 922-23. The Court, in a footnote to the above quotation, stated: “[i]n the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda.” 459 U.S. at 564 n. 15, 103 S.Ct. at 922-23 n. 15. Justice Traynor in People v. Ellis, 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393 (1966), held that a refusal to speak for voice identification was not a testimonial communication subject to the proscriptions of the Fifth Amendment. He likened evidence of such a refusal to that of flight, escape or intentional destruction of incriminating evidence, stating “by acting like a guilty person, a man does not testify to his guilt but merely exposes himself to the drawing of inferences from circumstantial evidence of his state of mind.” 421 P.2d at 397-98. We find Justice Traynor’s observation apt and applicable to this case.

Appellant argues, however, that a refusal to submit to a neutron activation test is not the same as a refusal to submit to a breathalyzer test because the latter situation is governed by an “implied consent” law which permits the prosecution to introduce such refusal at trial by specific statute, and that no such “implied consent” applies to the refusal in the instant case. This contention is without merit.

Statements of refusal to submit to reasonable physical evidence tests are admissible because they are the product of neither coercion nor interrogation, not because they are themselves physical evidence or because statutes authorize their admission. As Justice Traynor stated in People v. Ellis, supra,

A guilty party may prefer not to find himself in a situation where consciousness of guilt may be inferred from his conduct, but it can scarcely be contended that the police, who seek evidence from the test itself, will tend to coerce parties into refusing to take tests in order to produce this evidence.

421 P.2d at 397. If such a statement were the product of either coercion or interrogation, no statute could abbrogate the Fifth Amendment protections applicable to such communications. Succinctly, implied consent laws impact Fourth Amendment rather than Fifth Amendment privileges; pursuant to such statutes drivers consent to relinquish certain privacy interests for the privilege of driving, but retain options with respect to their conditional relinquishment of privacy, i.e. taking the test or refusing to take it and suffering the various collateral consequences. These Fourth Amendment considerations, however, are simply in-apposite, here.

C.

Appellant also contends that introduction of his refusal to take the test permitted speculation by the jury as to what the results of such a test would have been, thereby denying appellant due process of law. The Commonwealth could not establish the time the shot was fired which killed the victim. According to appellant, because the test could only be effective if it was administered within two hours of a gun shot, the jury was encouraged to speculate that the test results would have been different had appellant consented and the test had been conducted an hour or more earlier, and that appellant’s refusal to take the test therefore was equivalent to an admission of guilt. Appellant argues, essentially, that the trial court should have required the Commonwealth to establish that the test would have conclusively confirmed or dispelled appellant’s participation in the victim’s murder before permitting the Commonwealth to argue the inference of a consciousness of guilt. We cannot agree. While it is true that a prosecutor must limit statements to facts in evidence and legitimate inferences therefrom, Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985), we, nonetheless, find that appellant’s refusal to submit to the neutron activation test raised a legitimate inference of his “consciousness of guilt” whether or not the test could have established appellant’s guilt. The time which elapsed between the victim’s death and the request to take the test may have caused even an earlier test to be inconclusive. However, the inference of a consciousness of guilt arises not from the results such a test could actually have produced, but from the suspect’s fear of what the test might have detected. Under the circumstances of this case, we find that there is sufficient support for the inference of a consciousness of guilt to raise it above the level of mere speculation. Hence we find appellant’s final argument without merit.

We conclude, therefore, that the introduction into evidence of appellant’s refusal to submit to the neutron activation test was not violative of appellant’s rights pursuant to the Fifth and Fourteenth Amendments.

Based upon the foregoing, the judgment of sentence of the trial court is affirmed.

CAVANAUGH, J. files a dissenting statement.

CAVANAUGH, Judge,

dissenting:

The majority has chosen to directly address two issues raised by appellant, and in both instances they affirm the admissibility and legal import of evidence. Since I feel that in each instance the trial court erred, I dissent.

As to appellant’s first issue, I believe that the trial court committed error in charging the jury that it could consider the appellant’s silence in response to questioning by the police for the purpose of assessing the credibility of his testimony. In my view, the use of a criminal defendant’s silence for impeachment purposes under the circumstances presented by the facts in this case is a violation of that defendant’s rights under the Fifth Amendment of the United States Constitution and Article I § 9 of the Pennsylvania Constitution.

To begin with, I do not accept the majority’s characterization “that appellant’s silence occurred at a pre-arrest stage” of this police investigation. The appellant appeared at the Holidaysburg Barracks of the Pennsylvania State Police and told the officers that he wanted to report a dead body located in his automobile parked in front of the barracks. Two officers went out to the automobile to investigate while appellant remained inside with a third trooper.

Appellant Monahan would not offer any explanation when he was asked to tell what had happened by the trooper who remained in the barracks. The record shows that as soon as the two officers who had been checking appellant’s car returned Monahan was advised of his constitutional rights and searched. Thus the majority is focusing on the short time period it took to walk outside the barracks, check out appellant’s automobile parked in front of the barracks, and re-enter the building as the “pre-arrest stage”, during which Monahan’s decision to remain silent may be used in evaluating his credibility. The majority points out that during the time period in question “[t]he police had no corroborative information that there was a dead body in the car or any information that a murder might have occurred,” (Opinion, p. 629), and they also note that “[n]o physical or verbal restraints were placed on appellant” (Opinion, p. 629). However, in spite of the fact that each of these assertions may be true, given the grave implication of his report to the police, it is impossible for me to believe that Donald Monahan would have been free to leave the state police barracks had he attempted to do so during the time period in question. To suggest otherwise under the circumstances outlined would seem to be incredible. I believe that if the appellant had attempted to leave at this point, he certainly would have been stopped. Simply because Donald Monahan did not put the state police to the test by attempting to leave the barracks and requiring them to use physical or verbal restraints on him does not, in my view, make this situation any less custodial.

“The determination of when an arrest occurs depends on an evaluation of all the surrounding circumstances.” Commonwealth v. Romeri, 314 Pa.Super. 279, 288, 460 A.2d 1139, 1143 (1983), affirmed 504 Pa. 124, 470 A.2d 498, certiorari denied 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (quoting Commonwealth v. Crissy, 304 Pa.Super 38, 450 A.2d 89 (1982)). An arrest may be effectuated without the use of force or physical restraint and without a formal statement of arrest. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Romeri, supra; Crissy, supra. An arrest occurred at the point when appellant could reasonably have believed that the state police intended to take him into custody, and at that point all constitutional protections must be observed.

Because I believe appellant was under arrest at the time in question, I view Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), as controlling. Turner held that a criminal defendant’s post-arrest, pre-Miranda silence may only be introduced at trial by the Commonwealth to impeach the defendant if his testimony gives an account of events which is factually inconsistent with his silence at the time of arrest. For instance, if the defendant testifies to a version of events and claims that he relayed the same information to the police at the time of his arrest, the defendant’s silence may be introduced to impeach his testimony. “Absent such an assertion, the reference by the prosecutor to previous silence is impermissible,” Turner, Id., 499 Pa. at 583, 454 A.2d at 540. In the case at bar, appellant did not testify that he told his version of the story to the police, which would have justified the use of appellant’s silence to impeach such an assertion. Rather, the testimony regarding appellant’s silence was offered by the Commonwealth’s first witness at trial before the appellant had given any testimony. This statement of the Commonwealth’s witness, compounded by the instructions given by the trial judge allowing consideration of this silence by the jury in connection with its assessment of the defendant’s credibility, is directly in violation of the rule in Turner and violates the appellant’s right against self-incrimination.

Furthermore, accepting arguendo the assertion of the majority that appellant’s silence in response to police questioning did occur at the pre-arrest stage in the investigation, I am still troubled by the trial court’s charge allowing the jurors to consider this silence as a factor bearing on the appellant’s credibility. Given that the appellant had no duty to speak or to respond in any way to police questioning, his failure to speak should not be used against him. To use even his pre-arrest silence for impeachment purposes in the manner presented by this case seems to me a violation of Donald Monahan’s right against self-incrimination.

The second issue directly addressed by the majority approves of the Commonwealth’s introduction of testimony that appellant refused to submit to a neutron activation test (done to determine if the test subject has recently discharged a firearm), together with testimony that the test is only effective if promptly administered, on the basis that such refusal was not of a testimonial nature so as to implicate appellant’s rights against self-incrimination, and that his refusal “raised a legitimate inference of his 'consciousness of guilt’ ” for the jurors’ consideration. I disagree with those conclusions and would rule that the trial court again committed error in allowing the introduction of this testimony.

A view of the record shows that the state police requested that Monahan submit to a neutron activation test between 2:30 A.M. and 3:00 A.M. on the morning he came to the police barracks with the dead body in his car. On advice of counsel that he did not have to submit to the testing, Monahan refused to comply with this request, thus forcing the officers to obtain a warrant from a magistrate in order to proceed. The test was conducted at approximately 4:00 A.M. and the results were negative, meaning that Monahan’s hands did not show evidence of his having fired a firearm.

At trial the Commonwealth offered the negative results of the neutron activation test, however, the state trooper who conducted the test went on to testify that such tests are only effective if conducted within two hours of the time the test subject last fired a gun. Reviewing the transcript of this testimony, which included hypothetical questions posed by the prosecutor concerning variations in the time frame of the victim’s death, appellant’s refusal to submit and the testing, leads me to conclude that the jurors were left with the distinct impression that the test results might not have been negative if the test had been conducted at the time appellant was initially requested to submit. Thus appellant’s refusal to be tested, on advice of counsel, is used to suggest his guilty conscience, and this in spite of the fact that the Commonwealth offered no evidence to prove the time of the victim’s death or the time that the shooting might have occurred.

The majority correctly points out that the gathering of evidence by conducting a physical test is not testimonial in nature and does not result in a criminal defendant being compelled to offer evidence against himself. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). However, if a jury is permitted to infer that appellant’s refusal to submit to such a test exhibits a consciousness of his own guilt, I suggest that the character of the evidence is now of a testimonial nature which does implicate his rights against self-incrimination.

Monahan’s refusal was used at trial to indicate that he must have known that the test results would prove he had fired a gun recently. As was noted in an opinion of this court dealing with the issue of admissibility of one’s refusal to submit to a breathalyzer test, “Admittedly, a person may refuse to take a test for reasons that have nothing whatever to do with his guilt or innocence.” Commonwealth v. Robinson, 229 Pa.Super. 131, 148, 324 A.2d 441, 450 (1974). In the case at bar, appellant’s refusal was on advice of his attorney. It seems meaningless to inform a criminal defendant that he has a right to counsel if the Commonwealth is permitted to then penalize that defendant if he should listen to advice of counsel by suggesting such behavior indicates a guilty conscience.

I would conclude that a criminal defendant’s refusal to cooperate in an evidence-gathering test may not be used against him, particularly to suggest that the delay caused by his refusal defeated the Commonwealth’s ability to effectively prove its case.

I would grant a new trial.

      . Appellant originally raised fourteen issues on appeal but two of the issues were conceded to be without merit by the appellant in his brief on appeal.

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

      . At trial, appellant testified that he kept the gun in his car on top of the transmission hump partially under the seat. He stated further that he was in the car with the victim and as he was getting out of it, he heard a click; he turned and saw the victim holding the gun. As he reached over to grab the gun, it went off and the victim shot herself. (N.T. 11/5/82 at 487-488). Appellant’s silence at the police station was used to raise an inference that appellant had made up this plausible scenario later in an attempt to escape justice, and that if the shooting had really occurred as appellant testified, appellant would have had no reason to refuse to tell the police his version of the facts when he first reported the dead body to them.

      . The trial court explained that:
      [a] neutron activation test is a test performed on the hands of a subject to determine whether he has discharged a firearm. (N.T. at 192). The test consists of putting a prepared solution onto cotton swabs and then swabbing the subject's hands. The test is designed to detect minute quantities of antimony and barium. The presence of both of these elements on the subject’s hands indicates that the subject has discharged a firearm. (N.T. at 192-193).
      (Trial Ct.Op. at 11, footnote).

      . Appellant has not raised, and hence, we do not address any Fourth Amendment implications of the procedures followed in this case. Because the police elected to wait for a warrant rather than to proceed with the minimally intrusive neutron activation test for highly evanescent evidence despite appellant's refusal to consent to the test, we have no occasion in this case to determine whether such deference to appellant’s wishes was constitutionally required where both probable cause and extreme exigence related to the evanescent nature of the evidence to be recovered by the test existed.

      . Pa.R.Crim.P. 305(B)(1)(b) provides:
      B. Disclosure by the Commonwealth
      (1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
      ******
      (b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement and the identity of the person to whom the confession or inculpatory statement was made, v/hich is in the possession or control of the attorney for the Commonwealth.

      . See Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplar); Commonwealth v. Jefferson, 445 Pa. 1, 281 A.2d 852 (1971) (fingerprint evidence); Commonwealth v. Anderl, 329 Pa.Super. 69, 477 A.2d 1356 (1984) (breathalyzer results); Commonwealth v. Moyer, 315 Pa.Super. 174, 461 A.2d 853 (1983) (fingerprint evidence); Commonwealth v. Moss, 233 Pa.Super. 541, 334 A.2d 777 (1975) (handwriting exemplar).

      . See Commonwealth v. Dougherty, 259 Pa.Super. 88, 393 A.2d 730 (1978) (admission into evidence of defendant’s refusal to submit to breathalyzer test is not violative of defendant’s privilege against self-incrimination); Commonwealth v. Robinson, 229 Pa.Super. 131, 324 A.2d 441 (1974) (admission into evidence of defendant’s refusal to submit to breathalyzer test under implied consent law is not violative of defendant’s Fifth Amendment privilege against self-incrimination); Commonwealth v. Rutan, 229 Pa.Super. 400, 323 A.2d 730 (1974) (same); see also State v. Stever, 107 N.J. 543, 527 A.2d 408 (1987) cert. denied-U.S. —, 108 S.Ct. 348, 98 L.Ed.2d 373 (1987) (admission into evidence of suspect’s refusal to submit to breathalyzer test did not violate suspect’s common law privilege against self-incrimination or suspect’s due process rights under State Constitution); State v. Bakst, 30 Ohio App.3d 141, 506 N.E.2d 1208 (1986) (no constitutional right to refuse to take a blood-alcohol test: Fifth Amendment does not prohibit the admission of a defendant’s refusal to take the chemical test or tests, or the admission of his silence when asked for the reason(s) for the refusal). For a detailed analysis of the United States Supreme Court’s holding in South Dakota v. Neville see Crump, Admission of Chemical Test Refusals after South Dakota v. Neville: Drunk Drivers Can’t Take the Fifth, 59 N.D.L.Rev. 349 (1983).

      . "... [Y]ou have heard evidence in this case concerning the failure of the defendant to give an explanation to the police at the State Police barracks as to what had occurred and also evidence regarding asking for an attorney or asking to speak with his attorney. You are hereby directed that a defendant’s silence and/or his request for an attorney or to speak to an attorney is not any evidence of guilt whatsoever and should not be considered as such. A defendant’s silence prior to being advised of his constitutional rights and prior to being taken into custody, however, may be considered in connection with a jury’s assessment of defendant's credibility as a witness in this case in conjunction with all the other factors bearing on credibility but only for the purpose of credibility and only if you are satisfied that under all the circumstances then and there existing an explanation would naturally have been given by the defendant.”