author: TAMILIA, Judge: POPOVICH, Judge,

text:
    599 A.2d 656
    COMMONWEALTH of Pennsylvania v. Carl Franz OGBORNE, Appellant.
    Superior Court of Pennsylvania.
    Argued November 1, 1988.
    Filed Oct. 21, 1991.
    Reargument Denied Dec. 30, Í991.

      F. Kirk Adams, Media, for appellant.
    Vram Nedurian, Jr., Asst. Dist. Atty., Newton Square, for Com., appellee.
    Before CAVANAUGH, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

Carl Franz Ogborne appeals from judgment of sentence imposed May 13, 1988. Following a nonjury trial, appellant was convicted of possession of a controlled substance and possession with intent to deliver a controlled substance, and sentenced to a term of two and one-half to five years imprisonment. On direct appeal, this Court reversed the judgment of sentence holding:

[Pjolice may not conduct a valid investigative stop based solely on a confidential informant’s isolated and uncorroborated allegation that a particular individual is in possession of drugs____ [I]n the absence of exigent circumstance, admittedly not present here, unsupported allegations by informants that certain individuals possess drugs which do not rise to the level of probable cause for a search warrant, may not be utilized by the police five (5) hours later to justify an investigative stop on a person’s private property.

Commonwealth v. Ogborne, 384 Pa.Super. 604, 611-12, 559 A.2d 931, 935 (1989) (Tamilia, J., dissenting), reargument denied, July 10, 1989. Although allocatur was initially granted by the Pennsylvania Supreme Court, Commonwealth v. Ogborne, 524 Pa. 626, 574 A.2d 68 (1990), the appeal was later dismissed as being improvidently granted. Commonwealth v. Ogborne, 525 Pa. 570, 583 A.2d 789 (1991). This case is again before this Court upon remand from the United States Supreme Court, which vacated this Court’s previous decision for further consideration in light of Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Pennsylvania v. Ogborne, — U.S. -, 111 S.Ct. 1408, 113 L.Ed.2d 462 (1991).

Once again, the sole issue preserved for appeal is whether the police conducted a valid investigatory stop, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to justify their subsequent search and seizure. With the guidance of White, we find no distinction between that case and this one, and we now affirm the judgment of sentence.

In the early evening hours of January 15, 1987, Detective Glenn Greenwalt of the Delaware County Criminal Investigation Division returned a telephone call to a confidential informant. The informant had been reliable in the past and had given information which resulted in arrests and convictions dealing with narcotics within Delaware County within the previous year. Based on personal knowledge, the informant advised Greenwalt appellant would be returning from Philadelphia to the 100 block of Saude Avenue, Tinicum Township, within a few hours driving a new, black Dodge Daytona, and would have in his possession approximately ten bundles of phencyclidine (“PCP”).

Detective Greenwalt knew appellant from previous investigations of possession and distribution of PCP in 1981 and 1985. He telephoned Tinicum Township police and confirmed appellant and his wife resided at 115 Saude Avenue and a black Dodge Daytona frequently was parked in front of that residence. Police then established surveillance of the 100 block of Saude Avenue. At approximately 11:20 p.m., the police observed a new, black Dodge Daytona turn onto Saude Avenue heading toward appellant’s residence. As Detective Greenwalt approached the vehicle, it turned into the driveway of 115 Saude Avenue and Detective Greenwalt recognized the driver as appellant. Detective Greenwalt’s unmarked police car, followed by another unmarked police car and patrol car, pulled into the driveway behind appellant’s vehicle and activated its red flashing dashboard lights. Detective Greenwalt approached the vehicle, whose engine was still running, and tapped on the driver’s window, displaying his badge and identifying himself as a police officer. Despite repeated requests, appellant did not turn off the car motor until Detective Greenwalt began to open the driver’s door. Upon opening the door, Detective Greenwalt detected the odor of POP within the vehicle and asked appellant to step out of the car. A “pat down” search of appellant outside the car disclosed approximately 89 packets of POP, and a subsequent search of his vehicle resulted in the discovery of a small amount of POP. This evidence was the basis for the charges filed against appellant.

The basis of the Terry rule determines the reasonableness of the search by balancing the need to search against the invasion which the search entails, requiring the police to justify the particular intrusion by pointing to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Id. at 21, 88 S.Ct. at 1879-80, 20 L.Ed.2d at 905-06.

[Pursuant to Terry, ] certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime____ [Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop____ [Temporary detention for questioning on less than probable cause [is justified] where the public interest involved is the suppression of illegal transactions in drugs or of any other serious crime____

Florida v. Royer, 460 U.S. 491, 497-99, 103 S.Ct. 1319, 1323-25, 75 L.Ed.2d 229, 237 (1983); Commonwealth v. Lidge, 399 Pa.Super. 360, 582 A.2d 383 (1990).

While the threshold for establishing probable cause is necessarily higher than for establishing a reasonable suspicion, it is not inappropriate to apply the same benchmark to both determinations. In . Pennsylvania, our Supreme Court has adopted the “totality of the circumstances” test set forth by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). This places Pennsylvania in conformity with White, where it was held:

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause---Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture” that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.

Id. at 2416, 110 L.Ed.2d at 309 (citation omitted).

In this case, Detective Greenwalt received specific information from a reliable informant with personal knowledge of appellant’s return time to his home in Delaware County from Philadelphia in a specific make and model of automobile and carrying bundles of PCP. The detective’s subsequent investigation corroborated much of this information, and it was confirmed by the arrival of the described vehicle at the time and place indicated.

[Bjecause an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity. Thus, it is not unreasonable to conclude ... that the independent corroboration by the police of significant aspects of the informer’s predictions imparted some degree of reliability to the other allegations made by the caller.

Id. at 2417, 110 L.Ed.2d at 310.

Applying White to this case, we find the information presented to Detective Greenwalt and corroborated by him, under the totality of the circumstances, exhibited sufficient indicia of reliability to justify the investigatory stop of appellant. In White, the police reviewed an anonymous telephone tip that White would be leaving a particular apartment at a particular time in a particular vehicle, that she would be going to a particular motel and that she would be in possession of about an ounce of cocaine inside a brown attache case. Police surveillance disclosed White leaving the particular apartment within the time frame predicted by the caller. Police stopped White just short of the motel, and a consent search of her attache case uncovered marijuana. A subsequent search of her purse led to the discovery of three milligrams of cocaine.

We cannot agree with appellant’s assertion that once in the driveway of his home, appellant was insulated from further police activity without a search warrant. Even searches of a residence, under exigent circumstances supported by sufficient evidence of a crime in progress, may be constitutionally permitted. The fact the “itinerary” supplied by the informant in White led to a motel rather than a residence should not be accorded undue significance. It is the itinerary and accompanying circumstances and not the destination itself which is of critical importance here. It is well-established where police have a right to stop an automobile and it turns into a residential driveway, the police may pursue and stop it. Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); see United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); Commonwealth v. Fox, 267 Pa.Super. 341, 406 A.2d 1072 (1979). The “totality of circumstances” test is sufficiently broad to cover the circumstances of this case within federal and state constitutional strictures.

As we find the Terry stop conducted by the police in this case entirely reasonable and in accord with White, supra, we affirm the judgment of sentence imposed May 13, 1988. Judgment of sentence affirmed.

POPOVICH, J., dissents.

POPOVICH, Judge,

dissenting:

The present appeal is before this court upon remand from the United States Supreme Court which vacated our previous judgment in Commonwealth v. Ogborne, 384 Pa.Super. 604, 559 A.2d 931 (1989), and ordered this court to review our decision in light of Alabama v. White, 496 U.S. 325,110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Finding Alabama v. White, supra, distinguishable on its facts from the case sub judice, I respectfully dissent from the opinion of the majority-

Once again, the issue presented is whether the police conducted a valid investigatory stop, i.e., a Terry stop, prior to the search and seizure of evidence. Having complied with the United States Supreme Court’s directive, I again conclude that the investigatory stop of appellant was illegal. Therefore, I, unlike the majority, would reaffirm our previous decision in this matter.

The record reveals the following facts: Delaware County Detective Greenwalt returned a telephone call from a confidential informant who had previously provided police with reliable information concerning drug activities. The informant told Detective Greenwalt that appellant would be driving a black Dodge automobile and would arrive later that same evening at the 100 block of Saude Avenue, Tinicum Township, appellant’s residence. He further informed the officer that appellant would possess phencyclidine or P.C.P. when he arrived. During this conversation, Detective Greenwalt was neither told nor did he attempt to discover the informant’s basis of knowledge.

Detective Greenwalt knew appellant had been involved in P.C.P. distribution several years earlier. The detective also confirmed that appellant resided at 115 Saude Avenue and that a black Dodge was often parked in front of that property. The police began surveillance, and, at approximately 11:20 p.m., appellant arrived at his home and pulled into his driveway. The police then blocked the driveway, and four or five officers surrounded appellant’s car. Eventually, Detective Greenwalt opened the driver’s side door and ordered appellant to shut off the car’s engine. At that time, Detective Greenwalt said he smelled the odor of P.C.P. and ordered appellant to exit the car. A search of appellant and the vehicle revealed a large quantity of P.C.P.

In Alabama v. White, supra, the police received an anonymous telephone tip that White would be leaving a particular apartment at a particular time in a particular vehicle, that she would be going to a particular hotel and that she would be in possession of an ounce of cocaine inside a brown attache case. The police then observed White leave the apartment at the predicted time in the particular vehicle and proceed to the particular hotel. After stopping her several blocks from the hotel, the police obtained White’s consent to a search of her brown attache case. The search of the case revealed a quantity of marijuana. A subsequent search of her purse revealed cocaine.

Based on those facts, the United States Supreme Court reversed the decision of the Court of Criminal Appeals of Alabama and held the anonymous tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion for the investigatory stop. Significantly, the Justices noted that the anonymous informant was able to predict White’s “future behavior” with particularity. The Justices reasoned, “Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about the individual’s illegal activities.” Alabama v. White, 110 S.Ct. at 2417.

Comparing our facts to those of Alabama v. White, supra, the informant sub judice also predicted “future behavior”, i.e., that appellant would arrive at his home in his car sometime later that evening. However, as stated in our prior Ogbome decision, “the actions of appellant were perfectly innocent. He arrived at his residence without any proof of criminal wrongdoing present.” Ogborne, 384 Pa.Superior Ct. at 611, 559 A.2d at 935. Instantly, the informant merely predicted that appellant would drive his car home during a particular evening. Clearly, there was nothing remotely unusual about appellant’s actions; eventually, almost everyone who leaves home returns. Likewise, there was nothing especially intimate or detailed about the information herein provided to the police. The knowledge that a person will return to their own home while driving their own car, without more, certainly does not demonstrate that the informant possessed intimate knowledge of the suspect’s legal or illegal activities.

Unlike the informant in Alabama v. White, supra, who had detailed knowledge of White’s itinerary, Detective Greenwalt’s informant simply did not provide sufficiently particular information concerning appellant’s itinerary such that it would be reasonable to assume that he was also likely to possess reliable information about appellant’s alleged illegal activities. Basically, anyone who knew appellant could have provided the police with the identical information. In other words, the corroboration in this case was insignificant. Analogizing a quote from the dissent of Justice Stevens in White, supra, to the present case, “Anybody with enough knowledge about a given person to make [him] the target of a prank, or to harbor a grudge against [him] will certainly be able to formulate a tip about [him] like the one predicting [appellant’s return home].” Alabama v. White, 110 S.Ct. at 2418.

Surprisingly, in the present case, the police officers knew the informant and, yet, neglected to act prudently and inquire into the informant’s basis of knowledge concerning the tip. Outside of the informant’s unsupported allegation that appellant was transporting P.C.P., the Commonwealth cannot point to a single fact upon which to premise the Terry stop of appellant. Based on the information at hand, I cannot agree with the majority and the Commonwealth that Detective Greenwalt possessed information sufficient to create the reasonable suspicion necessary for a valid Terry stop, even when viewed in the light of Alabama v. White, supra. This is especially true given the fact the Justices recognized that Alabama v. White, supra, was itself a “close” case. 110 S.Ct. at 2417.

Certainly, there are times when an unverified tip, although insufficient to establish probable cause, nevertheless is sufficient to justify a Terry stop. See Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612, 617-18 (1972). In Adams v. Williams, supra, the high court sustained a Terry stop and frisk undertaken on the basis of a tip given in person to a police officer by a known, reliable informant. However, in that case, the informant, at 2:15 a.m., approached the officer, stationed in a high crime area, and informed him that an individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist. The officer, who knew the informant, approached the vehicle and tapped on the window. The suspect rolled down the window whereupon the officer was able to see the handgun. The suspect was then arrested, and the search incident to a lawful arrest uncovered, inter alia, a large quantity of heroin.

In sustaining the search in Adams v. Williams, supra, the Supreme Court noted that the information provided “was immediately verifiable at the scene.” 407 U.S. at 146, 92 S.Ct. at 1923. The fact that the officer found the suspect in possession of a handgun in precisely the place predicted by the informant corroborated the reliability of the tip. That, taken together with the surrounding circumstances, provided probable cause for the subsequent search of the vehicle. 407 U.S. at 148-149, 92 S.Ct. at 1924-1925. Further, the initial Terry stop was approved because of the officer’s need to insure his own safety due to possibility that the proximate suspect was armed. 407 U.S. at 148, 92 S.Ct. at 1924.

Unlike the case before us, Adams v. Williams, supra, demonstrates when a tip from a reliable informant, corroborated by police, is sufficient to raise the reasonable suspicion necessary for a Terry stop. Presently, appellant was not involved in suspicious activity of any kind, corroboration of an alleged illegal act was not obtained and the officers did not fear for their safety. As stated in Adams v. Williams, supra, “Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized.” 407 U.S. at 147, 92 S.Ct. at 1924. Such was the case presently. I submit, “[s]imply put, a tip such as this one, standing alone, would not ‘warrant a man of reasonable caution in the belief’ that a [stop] was appropriate.” Alabama v. White, 110 S.Ct. at 2416, quoting Terry, 392 U.S. at 22, 88 S.Ct. at 1880, quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925).

In conclusion, I would hold that in Pennsylvania, police may not conduct a valid investigatory stop based solely on a confidential informant’s unsupported and essentially uncor-

roborated allegation that a particular individual is in possession of drugs. Herein, I do not imply that a reliable informant’s tip may never be sufficient to justify a Terry stop. However, absent exigent circumstances, admittedly not present here, an unsupported allegation that an individual is in possession of narcotics may not be used to justify an investigative stop. I am convinced that such an allegation, absent corroboration which demonstrates that the informant possesses intimate knowledge of the suspect’s activities, does not give rise to the necessary “ ‘minimal level of objective justification’ for making the stop.” United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989), quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984). Finding no such intimate knowledge presently, I am convinced that Alabama v. White, supra, is distinguishable, and accordingly, I dissent.

      . 35 P.S. § 780-113(a)(30).

      . Id.

      . Detective Greenwalt testified that after receiving the information from the confidential informant, he did not attempt to get a search warrant or arrest warrant because he did not believe he had sufficient probable cause to obtain one.

      . We note appellant’s claims concerning the scope and location of the Terry stop on private property were not raised in the trial court in his petition to suppress and are, therefore, waived. Commonwealth v. Baylis, 477 Pa. 472, 384 A.2d 1185 (1978). We addressed these issues in cursory fashion only in the interest of judicial economy.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Further, Detective Greenwalt admittedly neglected to inquire as to his informant’s basis of knowledge. Therefore, with the exception of the informant’s previous “reliable” tips, the detective did not possess any reasonable basis to assume this tip was any more reliable than one from an anonymous caller.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    599 A.2d 662
    COMMONWEALTH of Pennsylvania v. Richard Thomas BULLERS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 20, 1991.
    Filed Oct. 29, 1991.

      James L. Martin, Ridgway, for appellant.
    Vernon D. Roof, Dist. Atty., Ridgway, for Com., appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

We are asked to determine whether the authority of a police officer to arrest without a warrant extends to the summary offense of underage drinking under circumstances where the violator does not exhibit disorderly conduct, a breach of the peace, drunkenness or other irregular behavior. We conclude that a warrantless arrest under such circumstances has not been authorized by our legislature. Accordingly, we must reverse.

Richard Bullers was found guilty by a jury of theft of a firearm, 18 Pa.C.S. § 3921(a), firearms not to be carried without a license, 18 Pa.C.S. § 6106(a), unauthorized use of automobile, 18 Pa.C.S. § 3928(a), and receiving stolen property, 19 Pa.C.S. § 3925(a). Bullers appeals from judgment of sentence entered upon these convictions. We reverse, and remand for further proceedings.

On appeal, Bullers contends that he was unlawfully arrested and that the evidence which resulted therefrom was improperly admitted at trial. Bullers also contends that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that he was guilty of the crimes for which he was convicted. Finally, he presents an attack upon the weight of the evidence.

We will begin by considering Bullers’ claim as to the sufficiency of the evidence. We do so because a determination in Bullers’ favor regarding sufficiency would entitle him to a discharge. Further, such a determination would obviate the need to interpret the statute implicated in this case. Similarly, our Supreme Court has concluded that sufficient evidence had been presented to support a conviction before proceeding to determine that the conviction had resulted from an illegal arrest. See Commonwealth v. Lovette, 498 Pa. 665, 670, 450 A.2d 975, 977 (1982), cert. den. 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983).

When reviewing an attack upon the sufficiency of the evidence, our standard of review is well established: sufficiency of the evidence must be evaluated and determined upon the entire record. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). The entire trial record must be evaluated and all the evidence actually received must be considered, whether or not the trial court’s rulings thereon were correct. Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). All of the evidence must be read in the light most favorable to the Commonwealth, as verdict winner, and the Commonwealth is entitled to all reasonable inferences arising therefrom. Meadows. An attack upon the sufficiency of the evidence admits all the facts which the Commonwealth’s evidence tends to prove, but contends that such facts fail to establish, beyond a reasonable doubt, the elements of the crimes for which the defendant has been convicted. Id. So viewed, the record reveals the following:

On April 5, 1990, at about 10:00 p.m., Richard Wolfe, a resident of the Borough of Johnsonburg, parked his GMC Jimmy truck on Market Street, directly across the street from a local club. Fifteen to twenty minutes later, Wolfe discovered that his truck was missing, and he contacted the Johnsonburg Borough police. He reported that the keys had been left in the vehicle, and the doors had been left unlocked. He also reported that he had left a pistol, in a holster, in the console between the seats and that the pistol contained a loaded clip. Wolfe had not given anybody permission to be in possession of the truck or the pistol that evening.

That same evening, Sergeant Parana, of the Johnsonburg Borough Police Department, began his work shift at 11:00 p.m., and he was informed that Wolfe’s vehicle had been stolen. At about 11:45 p.m., a radio call came in from the St. Marys Borough Police Department indicating that a vehicle fitting the description of Wolfe’s truck had been located in a cemetery in St. Marys. Sergeant Parana arrived at the cemetery about ten minutes later and determined that the found truck was registered to Wolfe. Parana also discovered that the pistol was missing from the console.

Keith Lucanik, accompanied by his brother-in-law, was traveling from Emporium, Pennsylvania to Wilcox, Pennsylvania, in the early hours of April 6, 1990. Lucanik traveled through St. Marys and Johnsonburg and gave a ride to Bullers, who had been hitchhiking. Bullers entered the car in St. Marys near Andrew Kaul Hospital, on Route 255, at about 2:00 or 2:30 a.m., and he exited at about 2:45 or 3:00 a.m. in Johnsonburg. While in Lucanik’s car, Bullers sat in the back seat. Lucanik did not have a firearm or a red canvas bag in his car that morning.

At approximately 2:45 a.m., Officer Parana saw Bullers walking on Grant Street in Johnsonburg. Parana knew Bullers, and approached him in order to ask questions regarding the theft of Wolfe’s truck. After engaging Bullers in conversation, Parana detected the odor of beer on Bullers’ breath. Knowing from previous experiences with Bullers that he was nineteen years old, Parana arrested Bullers for underage drinking. This arrest occurred about a quarter mile from Bullers’ residence and about 600 to 700 feet from where Wolfe’s truck had earlier been stolen. Also, the scene of the arrest was about one and one-half to two miles from Route 255.

Incident to the arrest, Sergeant Parana conducted a pat-down search and discovered a large amount of loose change, some of which was in a red canvas bag in Bullers’ jacket pocket. Parana also found a number of pencils and pens. A later search at the station uncovered Wolfe’s loaded, holstered pistol hidden beneath Bullers’ jacket inside his belt and against his back. Bullers had no license or permit to carry a concealed firearm.

Bullers testified at trial that, while riding in Lucanik’s car, he found the red canvas bag in the back seat area, that he stole the bag from Lucanik’s car upon exiting, and that he then discovered a gun in the bag.

Bullers argues first that this evidence is insufficient to prove beyond a reasonable doubt that he unlawfully took or exercised control over Wolfe’s gun with the intent to deprive the owner thereof. See 18 Pa.C.S. § 3921(a). He also contends that this evidence is insufficient to prove beyond a reasonable doubt that he intentionally received, retained or disposed of the gun knowing that it was stolen, or believing such, absent the intent of restoring it to the owner. See 18 Pa.C.S. § 3925(a). Finally, he contends that this evidence is insufficient to prove beyond a reasonable doubt that he operated Wolfe’s automobile without consent. Bullers bases each of these contentions on the observation that no witness to any of the thefts was presented, and he argues that the only evidence of his guilt was the possession of the pistol.

As observed by our Supreme Court, “[t]he fact that the evidence establishing a defendant’s participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence.” Commonwealth v. Lovette, 498 Pa. at 670, 450 A.2d at 977 (collecting cases). We are satisfied that Bullers’ possession of Wolfe's pistol, hours after it was reported stolen from Wolfe’s truck, coupled with the evidence that Bullers had hitchhiked back to Johnsonburg from the neighboring borough in which Wolfe’s abandoned truck was found, sufficiently supports the inference of guilt as to each of the crimes of which Bullers was convicted. Bullers’ nearly boilerplate claims to the contrary are meritless.

Bullers next contends that his convictions are against the weight of the evidence. In reviewing a challenge to the weight of the evidence, we start with the presumption that the evidence was sufficient, and examine whether, nevertheless, the evidence preponderates so heavily against the verdict that a serious miscarriage of justice may have occurred. Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983), cert. den., Vogel v. Pennsylvania, 465 U.S. 1104, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984); Commonwealth v. McLean, 396 Pa.Super. 23, 578 A.2d 4 (1990). See Commonwealth v. Murray, 408 Pa.Super. 435, 597 A.2d 111 (1991). Under this standard, we are not persuaded that the evidence in this case “preponderates against the verdict” or that there is any indication that a miscarriage of justice may have occurred.

Buller’s final issue concerns the circumstances of his arrest. In pre-trial and post-trial motions, and again on appeal, Bullers has contended that his arrest was unlawful and that he was entitled to have the evidence obtained as a result thereof suppressed.

When reviewing a suppression court’s denial of a motion to suppress evidence, our standard of review is well established.

Our responsibility is to “determine whether the record supports the factual findings of the court below and the legitimacy of the inference and legal conclusions drawn from those findings.” Commonwealth v. Hubble, 318 Pa.Super. 76, 78, 464 A.2d 1236, 1237 (1983). Additionally, we must consider the prosecution’s evidence and so much of the defendant’s evidence as remains uncontradicted. Commonwealth v. Mancini, 340 Pa.Super. 592, 490 A.2d 1377 (1985).

Commonwealth v. Haynes, 395 Pa.Super. 322, 333, 577 A.2d 564, 570 (1990).

Our legislature has decided that “[a] person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages____” 18 Pa.C.S. § 6308(a) (emphasis added). The manner in which actions involving exclusively summary offenses are instituted is governed by the Rules of Criminal Procedure, which state, in pertinent part:

Rule 51. Means of Instituting Proceedings in Summary Cases
Criminal proceedings in summary cases shall be instituted either by:
(a) issuing a citation to the defendant; or
(b) filing a citation; or
(c) filing a complaint; or
(d) arresting without a warrant when arrest is specifically authorized by law.

42 Pa.R.Crim.P. 51 (emphasis added).

Rule 51(d) conditions the propriety of a warrantless arrest upon the existence of independent authorization, but does not, in and of itself, authorize arrests for summary offenses. See, e.g., Commonwealth v. Neufer, 264 Pa.Super. 553, 400 A.2d 596 (1979) (Rule governing summary proceedings does not permit the arrest of a traffic offender unless so authorized by the Vehicle Code). See 75 Pa.C.S. § 101. Similarly, Rule 70, which addresses the manner in which a warrantless arrest for violation of a summary offense may be made, authorizes an officer, upon exhibiting some sign of authority, to arrest “[w]hen an arrest without a warrant in a summary case is authorized by law.” 42 Pa.R.Crim.P. 70 (emphasis added).

The trial court held that the authority to arrest for a violation of § 6308(a) is provided in the statute itself in subsection (d). That subsection states:

(d) Notification. — The police department making an arrest for a suspected violation of subsection (a) shall notify the parents or guardian of the minor charged.

18 Pa.C.S. § 6308(d).

We have recently stated that, “[w]hen vesting a group with police powers and duties, the Legislature does so with specificity.” Commonwealth v. Leet, 401 Pa.Super. 490, 493, 585 A.2d 1033, 1035 (1991) (en banc), quoting Allegheny County Deputy Sheriffs Association v. Pennsylvania Labor Relations Board, 95 Pa.Commw. 132, 135, 504 A.2d 437, 439 (1986), quoting Commonwealth v. Pennsylvania Labor Relations Board, 64 Pa.Commw. 525, 532, 441 A.2d 470, 475 (1982). In determining that § 6308(d) does not confer upon officers the authority to arrest for violation of the section, we look to other legislation wherein the Legislature has extended the power to arrest without a warrant.

In the Vehicle Code, 75 Pa.C.S. § 101, et seq., authority to arrest for violations thereof, although such violations may amount to no more than summary offenses, has been extended by the Code, wherein the Legislature specifically stated:

§ 6304. Authority to arrest without a warrant
(a) Pennsylvania State Police. — A member of the Pennsylvania State Police who is in uniform may arrest without a warrant any person who violates any provision of this title in the presence of the police officer making the arrest.
(b) Other police officers. — Any police officer who is in uniform may arrest without a warrant any nonresident who violates any provision of this title in the presence of the police officer in making the arrest.
(c) Other powers preserved. — The powers of arrest conferred by this section are in addition to any other powers of arrest conferred by law.

75 Pa.C.S. § 6304.

The Code also contains specific authorization to arrest, in certain circumstances, for misdemeanors committed outside the presence of the arresting officer. Rule 101 allows proceedings to be instituted by such arrests only where authorized by statute. In satisfaction of Rule 101, the Vehicle code provides:

§ 3731. Driving under the influence of alcohol or controlled substance
(c) Certain arrests authorized. — In addition to any other powers of arrest, a police officer is hereby authorized to arrest without a warrant any person who the officer has probable cause to believe has violated the provisions of this section, regardless of whether the alleged violation was committed in the presence of such officer.

75 Pa.C.S. § 3731(c).

The legislature has also, in the Crimes Code, “specifically authorized” arrests in some cases of domestic violence.

§ 2711. Probable cause arrests in domestic violence cases

(a) General rule. — A police officer shall have the same right of arrest without a warrant as in a felony whenever he has probable cause to believe that the defendant has violated section 2504 (relating to involuntary manslaughter), 2701 (relating to simple assault), 2702(a)(3), (4) and (5) (relating to aggravated aggravated assault) or 2705 (relating to recklessly endangering another person) against his spouse or other person with whom he resides or has formerly resided although the offense did not take place in the presence of the police officer. A police officer may not arrest a person pursuant to this section without first observing recent physical injury to the victim or other corroborative evidence.

18 Pa.C.S. § 2711(a). Similarly, the Legislature “specifically authorized” warrantless arrests for any grade of theft.

§ 3604. Arrest without warrant

A law enforcement officer shall have the same right of arrest without a warrant for any grade of theft as exists or may hereafter exist in the case of the commission of a felony.

18 Pa.C.S. § 3604.

We now turn our attention to the instant case. Although we are urged by the Commonwealth to hold, as did the trial court, that § 6308(d) provides the “specific authorization” for officers to arrest for violation of the section, we must decline. As we have shown, our legislature has demonstrated its ability to clearly and unambiguously “specifically authorize” arrests in the context of summary offenses and otherwise. Section 6308(d), entitled “Notification,” merely requires that the parents or guardian of a minor charged under the section be notified. That subsection was not intended by our legislature to extend to officers the power to arrest for a violation of the section.

That conclusion, however, does not end our inquiry for, as correctly observed by the Commonwealth, authority to arrest may be found in any of several statutes. Commonwealth v. Williams, 390 Pa.Super. 493, 499, 568 A.2d 1281, 1284 (1990) citing Gardner, Arrest and Search Powers of Special Police in Pennsylvania: Do Your Constitutional Rights Change Depending on the Officer’s Uniform?, 59 Temple Law Quarterly 497 (1986) and McCarthy, Warrantless Arrests by Police Officers in Pennsylvania, 92 Dickenson Law Review 105, (Pall 1987). In Williams, this court found specific authorization to arrest embodied within the Borough Code, 53 Pa.C.S. § 45101, et seq. The Code provides, in pertinent part:

§ 46121. Appointment, suspension, reduction, discharge, powers; mayor to have control
Borough council may, subject to the civil service provisions of this act, if they be in effect at the time, appoint and remove, or suspend, or reduce in rank, one or more suitable persons, citizens of the United States of America, as borough policemen, who shall be ex officio constables of the borough, and shall and may, within the borough or upon property owned or controlled by the borough or by a municipal authority of the borough whether such property is within or outside the limits of the borough, without warrant and upon view, arrest, and commit for hearing any and all persons guilty of breach of the peace, vagrancy, riotous or disorderly conduct or drunkenness, or who may be engaged in the commission of any unlawful act tending to imperil the personal security or endanger the property of the citizens, or for violating any ordinance of the borough for the violation of which a fine or penalty is imposed, and notwithstanding any statute pertaining to the same or similar offenses. Any person so arrested shall be received for confinement by the keepers of the jails, lockups, or station houses within the county.

53 Pa.C.S. § 46121.

In Williams, supra, we held that § 46121, by its terms, provided the “specific authorization” to the officers to arrest for behavior amounting to disorderly conduct, and that Williams’ behavior which precipitated the arrest was such conduct. Id., 390 Pa.Super. at 501, 568 A.2d at 1284-85. We are urged by the Commonwealth to hold that the provisions of § 46121 relating to “breach of the peace, ... disorderly conduct or drunkenness, ... [or] unlawful act[s] tending to imperil the personal security or endanger the property of the citizens” authorize an arrest for underage drinking.

In Commonwealth v. Pincavitch, 206 Pa.Super. 539, 214 A.2d 280 (1965) (en banc), this court considered the scope of a Borough Code provision authorizing arrest of persons committing a “breach of the peace, vagrancy, riotous or disorderly conduct or drunkenness, or who may engaged in the commission of any unlawful act tending to imperil the personal security or endanger the property of the citizens____” Id., 206 Pa.Super. at 542, 214 A.2d at 281. Where Pincavitch had been arrested for underage drinking for “[w]alking on the street at three o’clock in the morning with the odor of liquor on ones [sic] breath”, we held that such behavior, unlike the behavior in Williams, did not fall within the terms of the Borough Code. Id., 206 Pa.Super. at 543, 214 A.2d at 281. In Commonwealth v. Shillingford, 231 Pa.Super. 407, 332 A.2d 824 (1975) (en banc), this court considered the scope of Rule 102, which then permitted “[a]n arrest without a warrant when the offense is a summary offense which involves a breach of the peace, [or] endangers property or the safety of any person present____” Id. 231 Pa.Super. at 410, 332 A.2d at 825. Relying upon Pincavitch, this court again concluded that underage drinking is not such an offense. Compare Commonwealth v. Neufer, supra (arrest for pedestrian under the influence authorized by Vehicle Code and as “breach of peace” under Second Class Township Code, 53 Pa.C.S. § 65591, where defendant was “swaying, staggering and bumping into” companions, fled when directed to stop, and ran into fence while attempting to escape) and Commonwealth v. Alford, 321 Pa.Super. 257, 467 A.2d 1351 (1983) (arrest for underage drinking authorized where behavior amounted to disorderly conduct.) We invalidated the underage drinking arrests in both Pincavitch and Shillingford because no rule or statute authorized an arrest for either the crime charged or the acts prompting the arrest. Recently, relying on Shillingford, this court stated, in dicta, that the proper procedure to institute proceedings against a person accused of no more than underage drinking is to issue a citation. Commonwealth v. Trunzo, 404 Pa.Super. 15, 589 A.2d 1147 (1991). Today, we so hold.

We reach our result in full cognizance of the concerns expressed by the Honorable Gordon J. Baghir, President Judge, in his opinion, wherein he refers to “the known hazards and dangers, both to themselves and by themselves to others, that ensues by underage drinking and the general inability of youths, because of their tender ages and inexperience, to acceptably respond to alcohol consumption____” Memorandum Opinion and Order of Court of August 27, 1990, at 3-4. However, in instances where the facts warrant such concerns, officers are not precluded from proceeding under other sections of the Crimes Code, e.g., § 5505 Public Drunkenness, or the Vehicle Code, e.g., § 3550 Pedestrians under influence of alcohol or controlled substance. We have so held in Shillingford, Alford, and Neufer, supra. In any event, these concerns cannot serve as the basis for authorizing an otherwise unlawful arrest.

For the foregoing reasons, we conclude that the arrest in this case was unlawful, and that the trial court erred by admitting the evidence which resulted therefrom. Accordingly, we reverse judgment of sentence, and remand this case for proceedings not inconsistent with this opinion.

Judgment of sentence reversed; case remanded; jurisdiction relinquished.


author: OLSZEWSKI, Judge: KELLY, Judge,

text:
    599 A.2d 668
    COMMONWEALTH of Pennsylvania v. Timothy Mark DODGE, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 29, 1991.
    Filed Nov. 4, 1991.

      Susan E. Hartley, Athens, for appellant.
    Mark W. Smith, Asst. Dist. Atty., Towanda, for Com., appellee.
    Before OLSZEWSKI, KELLY and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Bradford County on August 31, 1987. Appellant was found guilty following a jury trial on June 10, 1987 for the offense of receiving stolen property, a felony in the third degree. Appellant was sentenced to a term of incarceration, a minimum of three and one-half years and a maximum of seven years. On July 31, 1990, appellant’s post-conviction hearing act petition was dismissed and the court directed that appellant shall be entitied to pursue his appeal from the sentence nunc pro tunc. This appeal followed.

Appellant raises the following issues for our consideration:

A. Did the defendant’s trial counsel render ineffective assistance when he elicited testimony from a witness concerning the defendant’s prior criminal record?
B. Did the trial court err in admitting evidence relating to other crimes of which the defendant allegedly had knowledge, and was trial counsel ineffective in failing to file timely post-verdict motions preserving the court’s improper ruling for appellate review?
C. Did the trial court impose upon the defendant an illegal sentence of three and one-half to seven years for the crime of receiving stolen property?

Appellant’s brief at 3. As we find appellant’s issues to be devoid of merit, we affirm the lower court’s order in part and remand for resentencing not inconsistent with this decision.

Appellant alleges that trial counsel was ineffective and requests that we grant a new trial. Before trial counsel may be deemed ineffective, appellant must meet the three pronged test, as set forth in our Supreme Court’s decision of Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989):

The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Com monwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Appellant alleges that trial counsel rendered ineffective assistance when counsel elicited testimony from a witness concerning appellant’s prior criminal record. Specifically, appellant complains of the following testimony elicited from Thomas Shaffer:

“I had taken it for granted that they were at a friend’s of his and he asked me if I would go with him get the guns due to the fact that he was on probation and was not allowed to bring any rifles down the street.” (N.T. vol. II at 45). Shaffer further testified: “And when he came out I asked him why he had the guns in this shed and he said I couldn’t come down Main Street with them because I am on probation ...” (N.T. vol. II at 47).

Appellant contends that trial counsel should have moved to strike the testimony or made a motion in limine to preclude the witness from testifying concerning appellant’s prior criminal record. Appellant has failed to produce evidence that trial counsel knew of this testimony before the trial and therefore counsel will not be deemed ineffective for failing to file a motion in limine to exclude the testimony.

Appellant contends that he was prejudiced by the witness’s remarks indicating he was on probation at the time of the incident and the fact of commission of one crime is not proof of the commission of another. The testimony of the witness was not offered to prove that appellant has a “criminal disposition,” it was offered to explain the reason why appellant did not want to carry the guns down the street. Trial counsel will not be deemed ineffective for failing to move to strike the testimony since appellant was not so prejudiced as to deprive him of a fair trial.

Appellant contends that the trial court erred in admitting evidence relating to other crimes of which appellant allegedly had knowledge. Specifically, appellant complains about the following testimony elicited by the District Attorney from the arresting officer, Officer McLinko:

Q: And did he (the defendant) say something about Cornwall having other guns and ...
A: Yes.
Q: What was that?
A: That he had a whole car full of them.
Q: And then Mr. Dodge gave you some other information about other crimes?
A: Yes, I don’t remember which ... any specific ones. Q: Well, did you put them in your report?
A: I’ll have to look.
Q: Well, look through your report and see if you can refresh your recollection from that.
A: He told us where another pistol, an automatic, that a person had that was obtained from another person.
Q: Well, just read in the names, tell us what he told you?
A: He said that an Ike Stroke had a .22 Llama automatic.
BY MR. FLEURY:
Your Honor, I would object to this line of questioning. I think Mr. Barrett would certainly have to agree that Mr. Dodge may have furnished some helpful information to the police pertaining to other crimes, but has no material elements as to the case here. I just fail to see any relevance.
BY MR. BARRETT:
To the contrary, Your Honor, Mr. Dodge exhibited a great interest in telling ... a great interest in informing ... giving all sort of valuable, useful stuff so that he might be able to be of assistance to the police on, which would show his state of mind and his intent and what he was trying to do at the time.
BY MR. FLEURY:
Your Honor, unless they can show Mr. ... and again, Mr. Barrett certainly has to admit that he can’t show any involvement by Mr. Dodge whatsoever, it’s immaterial to this case, it’s just a confusion of issues.
BY THE COURT:
Overrule the objection.
BY MR. BARRETT:
Q: If I may ask you a leading question. He told you ...
he tried to give you information about two or three other
crimes that other people were involved in?
A: Yes.
Q: And even the theft of Officer Dunn’s revolver?
A: Yes.
Q: Told you lots of things about other people?
A: Yes.
Q: He wanted to deal?
A: Beg your pardon?
Q: Did he say he wanted to deal?
BY MR. FLEURY:
Objection.
BY THE COURT:
Sustain the objection.

N.T. vol. II at 7-10. Appellant contends that this testimony was irrelevant and prejudiced the jury against him.

Generally, such evidence is inadmissible in a criminal trial, but courts will allow this evidence to show a defendant’s state of mind. Commonwealth v. Barba, 314 Pa.Super. 210, 460 A.2d 1103 (1983). The Commonwealth contends, and we agree, that the statement by appellant was used to show that appellant knew that the guns were stolen. The evidence was relevant to the issue in the case and appellant was not prejudiced by the evidence. Trial counsel was not ineffective for failing to raise the issue in post-trial motions.

Finally, appellant contends that the sentence imposed by the trial court was illegal since the property stolen does not meet the definition of a firearm as contained in the Uniform Firearms Act of Pennsylvania, 18 Pa.C.S. § 6101, et seq. Appellant was sentenced to a period of incarceration of a minimum of three and one-half to a maximum of seven years. The Firearms Act defines a firearm as “Any pistol or revolver with a barrel less than 12 inches, any shotgun with a barrel less than 24 inches, or any rifle with a barrel less than 15 inches.” 18 Pa.C.S. § 6102.

The Crimes Code characterizes a theft offense as a felony of the third degree “... if the amount involved exceeds $2,000, or if the property stolen is a firearm, automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle, or in the case of theft by receiving stolen property, if the receiver is in the business of buying or selling stolen property.” 18 Pa.C.S. § 3903. This specific statutory provision does not contain a definition of a firearm. Thus, the question is whether the Legislature intended to incorporate the definition contained in § 6102 in the offense grading contained in § 3903.

When construing a statute, words and phrases which have acquired a peculiar and appropriate meaning shall be construed according to that meaning. 1 Pa.C.S.A. § 1903(a). Statutes which relate to the same class of things are in pari materia and shall be construed together if possible. 1 Pa.C.S.A. § 1932. The term “firearm” has acquired a peculiar meaning via § 6102. Further, both § 6102 and § 3903 relate to the same class of things, i.e., firearms. Finally, both sections were enacted as part of the same act, P.L. 1482, on December 6, 1972. Thus, we construe the offense grading contained in § 3903 to have incorporated the definition of a firearm contained in § 6102.

The Commonwealth, however, presented the testimony of Debbie Shaffer which was as follows:

Q: Okay, do you know Tim Dodge here?
A: Yes, sir.
Q: All right, now you recall early last December when your husband and Tim brought some rifles to your house?
A: Yes, I do.
Q: Okay, now, sometime later, did Tim Dodge say to you anything about these rifles?
A: Yes, he said that he was going to give Tom the 30/30 rifle for letting us stay ... for letting him stay with us and he also said that the other one, I don’t know which kind ... what kind it is, that he was going to fence off to someone in Harrisburg.

N.T. at 23. The lower court, in its 1925 opinion, states that the Commonwealth provided overwhelming evidence to show that appellant was “in the business of buying or selling stolen property” within the meaning of 18 Pa.C.S.A. § 3903(a). In Commonwealth v. Sparks, 342 Pa.Super. 202, 492 A.2d 720 (1985), our Court held that the issue of whether the defendant was “in the business of buying or selling stolen property” was a question for the jury rather than a question for the court at sentencing.

In the present case, the lower court did not submit this issue to the jury although testimony was presented on this issue. At sentencing, the lower court graded the offense as a felony of the third degree since the rifle was a firearm under the statute. Since we have determined that the definition of a firearm under the Uniform Firearms Act applies to the grading to theft offenses, the lower court’s conclusion cannot be upheld. The question of whether appellant was in the business of buying or selling was not a question that should have been addressed at the time of sentencing. Although the Commonwealth alleged a value of the rifles in the information, there was no evidence offered at trial as to the value of the rifles and the value issue was not submitted to the jury. Such evidence is part of the Commonwealth’s burden of proof. Commonwealth v. Hanes, 361 Pa.Super. 357, 366-67, 522 A.2d 622, 625 (1987). In the absence of such proof, we are compelled to presume that value of the rifles is less than $50. Commonwealth v. Walentoski, 300 Pa.Super. 559, 565 n. 2, 446 A.2d 1300, 1303 n. 2 (1982). Thus, § 3903 requires that Dodge’s offense be graded as a third-degree misdemeanor.

For the foregoing reasons, we affirm the lower court’s order in part and remand in part for resentencing, with Dodge’s offense graded as a third-degree misdemeanor rather than a third-degree felony.

Concurring statement by KELLY, J.

KELLY, Judge,

concurring:

I join in the opinion of my learned colleague. I note only the following.

First, the definition of a “firearm” contained in 18 Pa. C.S.A. § 6102 is not the only such definition given to the term by the legislature. See e.g. 42 Pa.C.S.A. § 9712(e) (defining “firearm” under mandatory minimum sentences as any weapon including a starter gun which will or is designed to or may readily be converted to expel a projectile by the action of an explosive____). Nonetheless, I am persuaded by the Majority’s reasoning that because the Uniform Firearms Act was passed as a part of the same legislation as the receiving stolen property statute, we may assume that a legislative scheme was established and thus should insert the definition of § 6102 into § 3903. Compare Commonwealth v. Fitzhugh, 360 Pa.Super. 217, 520 A.2d 424 (1987) (finding it inappropriate to supplant definition of “firearm” given in 18 Pa.C.S.A. § 6102 into 42 Pa.C.S.A. § 9712, where definition of “firearm” is already supplied).

Second, although I agree with the majority that a sentencing error occurred, I hasten to add that it resulted from trial error originally. The question of what degree of receiving stolen property appellant committed is dependent upon several substantive issues of fact, i.e. whether the stolen rifle appellant received was within the ambit of the “firearm” definition described in 18 Pa.C.S.A. § 6102; whether appellant was “in the business of” receiving stolen property; and the value of the rifle. Such issues must be decided by the jury at trial. See Commonwealth v. Sparks, 342 Pa.Super. 202, 492 A.2d 720 (1985). Failure to instruct the jury to do so instantly prevented the necessary findings from being made.

Normally, such trial error requires reversal and remand for a new trial. See e.g. Commonwealth v. Draxinger, 345 Pa.Super. 554, 498 A.2d 963 (1985) (refusing to instruct jury to make findings on appropriate degree of homicide required remand for new trial). However, because appellant has argued to us on appeal that error occurred only in sentencing, we are bound to remand for resentencing. Here, because the fact finder was not instructed to find as to higher degrees of the crime, and because the trial court is unimpowered to do so at sentencing, see Commonwealth v. Sparks, supra, no finding as to any higher degree of receiving stolen property may be considered of record. The jury’s verdict of guilty must be considered a finding of guilt as to only the lowest degree of culpability. Thus, as the majority ably concludes, appellant must be resentenced on only the lowest degree of receiving stolen property.

      . Appellant, in his brief, states that the testimony concerning appellant’s probation was elicited by defense counsel; but, in fact the testimony was elicited from the Commonwealth’s attorney, Daniel Barrett.


author: CERCONE, Judge:

text:
    599 A.2d 673
    Donald REUTER, Appellant, v. CITIZENS & NORTHERN BANK.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1991.
    Filed Nov. 18, 1991.

      Ray Depaola, Towanda, for appellant. (Submitted).
    Raymond E. Ginn, Jr., Wellsboro, for appellee.
    Before POPOVICH, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment entered in favor of appellee. For the reasons appearing below, we affirm.

Appellant, Donald Reuter, is an attorney licensed in the Commonwealth of Pennsylvania, who personally guaranteed a loan made to Donald Simons by Citizens and Northern Bank. Appellant contends that he thereby obtained a security interest in a 1974 Piper Navajo airplane titled to Mr. Simons, doing business as Towanda Aviation Service. Because of financial difficulties encountered by Towanda Aviation, the Piper Navajo was sold in January of 1985. Although appellant was present at the meeting where Mr. Simons and his creditors decided to sell the airplane, appellant was not given written notice prior to the sale of the collateral. Unfortunately for Mr. Simons’ creditors, the proceeds received from the sale of the Piper Navajo were insufficient to eliminate his entire indebtedness.

Appellant subsequently instituted an action against appellee, Citizens and Northern Bank, claiming that appellee violated his rights by failing to notify him in advance of the repossession and sale of the airplane. A non-jury trial was held before the Honorable Robert M. Kemp, specially presiding, in November of 1989. A verdict was entered in favor of appellee on January 26, 1990. Appellant’s motion for post-trial relief was dismissed September 7, 1990 and this appeal ensued one week later. Final judgment was not entered on this case until October of 1990.

As an initial matter, we must consider our jurisdiction to hear the appeal. A verdict in a non-jury trial is not appealable until the entry of judgment on the verdict. Black Top Paving Co., Inc. v. John Carlo, Inc., 292 Pa.Super. 404, 437 A.2d 446 (1981). However, a case in which the notice of appeal was filed prior to entry of judgment is still validly before the appellate court. Arcadia Co., Inc. v. Peles, 395 Pa.Super. 203, 207, 576 A.2d 1114, 1116 (1990). Appellate jurisdiction may be perfected after the notice of appeal has been filed upon docketing of a final judgment. Id. In the instant case, our jurisdiction has been perfected via an entry of final judgment. We may therefore proceed to examine the merits of the claims raised.

Appellant has presented five issues for our consideration: (1) whether appellant had a security interest in the collateral sold by appellee; (2) whether appellant was entitled to notice of the sale; (3) whether the sale of the airplane was conducted in a reasonable manner by appellee; (4) whether appellant suffered financial injury as a result of the actions of appellee; and (5) whether appellant’s expert witness was improperly precluded by the lower court from testifying as to the values of airplanes listed in the pertinent trade journals. The analysis of the first and second claims, as well as that pertaining to the third and fourth claims, has been intertwined. We shall therefore address these arguments together.

Appellant first argues that he had a valid security interest in the Piper Navajo airplane. However, the trial court made an explicit finding of fact that appellant did not perfect a security interest by complying with the Pennsylvania Commercial Code. Lower court opinion of January 26, 1990 at 6. The factual findings of a trial judge 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. at 208, 576 A.2d at 1116. We must accept the findings of the court below with respect to the credibility of witnesses. Id.

Appellant contends that he is entitled to secured party status because discussions between himself and a bank officer indicated that both parties agreed he would be a secured party. He cites Bonczek v. Pascoe Equipment Co., 304 Pa.Super. 11, 450 A.2d 75 (1982) as support for his position that the existence of a security interest depends upon the intention of the parties to a transaction. We agree with appellant that Bonczek contains the following statement: “[Wjhether a security interest exists initially depends upon the intent of the parties to the transaction.” Id., 304 Pa.Superior Ct. at 19, 450 A.2d at 79 (emphasis added). It is nevertheless absurd to argue, based on a single statement removed from its context, that the Bonczek court intended to abrogate the entirety of Division 9 of our Commercial Code. Bonczek simply means that when determining whether a security agreement exists, the intent of the parties is one of the factors to be considered.

The term “security interest” is defined as an interest in personal property or fixtures which secures payment or performance of an obligation. 13 Pa.C.S.A. § 1201. As appellant correctly states, the rights, obligations and remedies available to the obligor and the obligee are applicable whether title to collateral is in the secured party or in the debtor. Id. § 9202. However, an enforceable security interest is created and attaches only after three specific events transpire: (1) the collateral is either in the possession of the secured creditor or the debtor has signed a security agreement which contains a description of the collateral; (2) value has been given; and (3) the debtor has rights in the collateral. Id. §§ 9203(a)(1), (2), (3) and (b); Kendrick v. Headwaters Production Credit Association, 362 Pa.Super. 1, 4-5, 523 A.2d 395, 397 (1987), allocatur denied, 515 Pa. 614, 530 A.2d 867 (1987). A “security agreement,” as contemplated by section 9203(a)(1), supra, is “[a]n agreement which creates or provides for a security interest.” 13 Pa.C.S.A. § 9105.

The findings of fact made by the lower court included an explicit ruling that appellee bank was a secured party with respect to the airplane because it had satisfied the requirements of section 9203, supra. Further, appellee had perfected its security interest by filing a financing statement in the Federal Aviation Administration Office in Oklahoma City, Oklahoma. See id., § 9103(c) (Perfection of security interests in multiple state transactions; Accounts, general intangibles and mobile goods (including airplanes)). However, the trial judge found that appellant was neither a party to a valid or enforceable security agreement, nor was he in possession of the collateral. Judge Kemp additionally determined that appellant had actually declined appellee’s offer for assignment of its security interest under section 9405 of the Commercial Code. See id. § 9405 (Assignment of security interest; duties of filing officer). Our review of the certified record discloses no abuse of discretion or error of law with regard to these factual findings. We therefore conclude that the trial court was correct in ruling that appellant was not a secured party within the meaning of the Commercial Code.

However, appellant has also argued that he attained the status of an accommodation party under 13 Pa.C.S.A. § 3415 by signing as a surety for the loan from appellee to Mr. Simons. Appellant contends that as an accommodation endorser, he is entitled to be treated as a “surety for the maker” and thus may assert, “within the limits of the doctrine of subrogation,” the “protection of the security given by the maker.” Appellant’s brief at 8-9. While this argument does not support the precise conclusion urged by appellant, it does contain a correct formulation of our law. By virtue of his status as an “accommodation party,” appellant actually attained the status of “debtor” under the Commercial Code, not that of “secured party.” Thus, although the trial court properly held that appellant was not a secured party, this correct ruling led to the incorrect conclusion that appellant was not entitled to notice of the pending collateral sale.

An “accommodation party” is one who signs an instrument in any capacity for the purpose of lending his name to another party to the instrument. Id. § 3415(a). The Comment to this section clearly indicates that an accommodation party is a surety. See Comment 5. to 13 Pa.C.S.A. § 3415. The rights of a “surety” are not the same as those accruing to a “secured party” under the Code, however. A secured party is one who has a valid security interest in collateral and has thereby acquired rights in the collateral itself under section 1201, supra. Id. § 9105(a). By contrast, a surety is one who undertakes to pay money or to do any other act in the event that his principal fails therein. In re Brock, 312 Pa. 7, 16, 166 A. 778, 781 (1933). The status of surety confers the right to exoneration from the principal debtor. Craighead v. Swartz, 219 Pa. 149, 153, 67 A. 1003, 1004 (1907). Thus, where a surety has performed upon the default of the principal debtor, the surety has a right to reimbursement from the principal debtor and is subrogated to the rights of the creditor. Continental Bank v. Axler, 353 Pa.Super. 409, 421 n. 2, 510 A.2d 726, 732 n. 2 (1986), allocatur dismissed, 518 Pa. 58, 540 A.2d 267 (1988). In sum, a surety’s remedy runs not to the collateral, but to the principal debtor. See generally, Etter v. Industrial Valley Bank and Trust Co., 356 Pa.Super. 502, 507, 515 A.2d 6, 8 (1986), allocatur denied, 514 Pa. 647, 524 A.2d 494 (1987); Restatement of Security §§ 82, 103, 104, 107, 108, 110, 112, and 141 (1941).

Under Pennsylvania law, a guarantor is a “debtor” within the meaning of Division 9 of our Commercial Code. See, e.g., Ford Motor Credit Co. v. Lototsky, 549 P.Supp. 996, 1003 (E.D.Pa.1982) (interpreting 13 Pa.C.S.A. § 9105; provides an extensive and erudite analysis of the law on the question of what constitutes a “debtor” in Pennsylvania as well as in other jurisdictions). As such, when collateral is to be sold, a guarantor is entitled to the same notice pursuant to section 9504(c) as is a debtor. However, the rights of a surety under Division 9 of the Commercial Code are less clear as there has been no definitive pronouncement on the subject. Section 9105 defines the term “debtor” as a “person who owes payment or other performance of the obligation secured, whether or not he owns or has rights in the collateral, including the seller of accounts or chattel paper.” 13 Pa.C.S.A. § 9105(a). We see no reason to interpret this definition so narrowly as to include guarantors but to exclude sureties. We therefore conclude that as a surety, appellant attained the status of “debtor” within the meaning of the Commercial Code and was therefore entitled to notice of the sale of the principal debtor’s collateral in conformity with section 9504(c), supra.

Inter alia, section 9504 requires a secured party to provide the debtor with “reasonable notification” of the time and place of any public sale of the collateral, or “reasonable notification” of the time after which any private sale or other intended disposition is to be made. Id. The purpose of such notification is to give the debtor a reasonable period of time in which to exercise his option to participate in the sale or otherwise to protect his interest. Beneficial Consumer Discount Co. v. Savoy, 291 Pa.Super. 649, 652 n. 2, 436 A.2d 687, 689 n. 2 (1981), aff'd by 503 Pa. 74, 468 A.2d 465 (1983). The question in the instant case is whether appellant received “reasonable notification” of the airplane’s sale so that he could have either participated in the sale or protected his interests in some other manner.

Our Commercial Code describes “notice” and “notification” in the following manner:

“Notice.” A person has “notice” of a fact when:
(1) he has actual knowledge of it;
(2) he has received a notice or notification of it; or
(3) from all the facts and circumstances known to him at the time in question he has reason to know that it exists.
A person “knows” or has “knowledge” of a fact when he has actual knowledge of it. “Discover” or “learn” or a word or phrase of similar import refers to knowledge rather than to reason to know. The time and circumstances under which a notice or notification may cease to be effective are not determined by this title.
A person “notifies” or “gives” a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it. A person “receives” a notice or notification when:
(1) it comes to his attention; or
(2) it is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.

13 Pa.C.S.A. § 1201. It follows from these definitions that a creditor who deliberately provides actual notice of a pending sale has given notification of that sale within the meaning of section 1201.

Appellant concedes that he had actual knowledge that a purchaser for the collateral was actively being sought as a result of Mr. Simons’ continuing financial difficulties. Appellant’s brief at 10. This fact is corroborated by appellant’s testimony at trial. N.T. November 6, 1989 at 16-18. Appellant specifically testified that he was present at a meeting involving Mr. Simons and his creditors, including a representative of appellee bank. Id. at 17. The agenda for this meeting included a discussion of the financial difficulties of Towanda Aviation and of the extensive efforts being undertaken to find a purchaser for the Piper Navajo airplane. Id. We find that by providing appellant with actual notice of the pending collateral sale in the context of a debtor/creditor meeting, the representative of appellee bank gave appellant “reasonable notification” within the meaning of sections 1201 and 9504(c), supra.

Appellant’s third argument is that the sale of the airplane was not conducted in a “commercially reasonable manner” as that term is contemplated by section 9504, supra. His fourth claim is that he was financially prejudiced by the manner in which the sale was carried out. To this end, appellant characterizes the foreclosure upon the collateral and its sale as occurring within one day. He also states that this fact alone was enough to alert potential purchasers that the collateral needed to be liquidated at a distressed price, which would impact negatively on their respective offers. Appellant further contends that appellee neither investigated the possibility of having an auction or soliciting sealed bids, nor solicited appellant to purchase the airplane even though he was a licensed pilot with more than $200,000 cash on deposit with appellee. Finally, he strenuously objects to the fact that the airplane was purchased by a wholesaler who did not pay the retail value of the collateral. We have carefully scrutinized the certified record, however, and find no support for these allegations.

Instead, our review of the law regarding the rights of a secured party to dispose of collateral has convinced us that the lower court correctly ruled that the sale of the airplane was conducted in a “commercially reasonable manner” as that term is meant under the Commercial Code. On default, a secured party has the right to take possession of secured collateral and dispose of it in conformity with section 9504, supra. 13 Pa.C.S.A. § 9503(a). Section 9504 provides in pertinent part as follows:

Right of secured party to dispose of collateral after default; effect of disposition
(a) Disposition of collateral and application of proceeds. — A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing. Any sale of goods is subject to Division 2 (relating to sales). The proceeds of disposition shall be applied in the order following to:
(1) the reasonable expenses of retaking, holding, preparing for sale or lease, selling, leasing and the like and, to the extent provided for in the agreement and not prohibited by law, the reasonable attorneys’ fees and legal expenses incurred by the secured party;
(2) the satisfaction of indebtedness secured by the security interest under which the disposition is made; and
(3) the satisfaction of indebtedness secured by any subordinate security interest in the collateral if written notification of demand therefor is received before distribution of the proceeds is completed. If requested by the secured party, the holder of a subordinate security interest must seasonably furnish reasonable proof of his interest, and unless he does so, the secured party need not comply with his demand.
(c) Manner of disposition. — Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods,[] no other notification need be sent. In other cases notification shall be sent to any other secured party from whom the secured party has received (before sending his notification to the debtor or before renunciation by the debtor of his rights) written notice of a claim of an interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale.

13 Pa.C.S.A. § 9504(a), (c). The terms of section 9504(c) are further clarified, however, by the following provision of section 9507:

(b) Disposition in commercially reasonable manner.— The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner____ A disposition which has been approved in any judicial proceeding or by any bona fide creditors’ committee or representative of creditors shall conclusively be deemed to be commercially reasonable, but this sentence does not indicate that any such approval must be obtained in any case nor does it indicate that any disposition not so approved is not commercially reasonable.

13 Pa.C.S.A. § 9507(b) (emphasis added). The trial court found that the airplane was not only advertised for sale by Mr. Simons, but that over an extended period of time, various agencies and persons were engaged in order to locate a buyer. Trial court opinion at 12. Several offers were received, ranging from $11,000 to $76,000. Id. Appellee accepted the highest offer. Id. In addition to all these facts, we direct appellant’s attention to section 9507(b) of the Code. The record before this panel certainly supports the conclusion that the decision to sell the airplane was taken in conjunction with a meeting of a bona fide creditors’ committee, at which appellant was actually present. We therefore conclude that the trial court was correct in ruling that the sale was conducted in a commercially reasonable manner. Because we have determined that the sale was “commercially reasonable,” it is unnecessary to address appellant’s claim that he was prejudiced by the manner of sale.

Finally, appellant argues that his expert witness was improperly precluded from testifying regarding the values of airplanes similar to the Piper Navajo in accordance with the information contained in certain trade journals. The admission of expert testimony is a matter for the discretion of the trial court and will not be remanded, overruled or disturbed unless there was a clear abuse of discretion. Laubach v. Haigh, 433 Pa. 487, 491, 252 A.2d 682, 683 (1969); Klyman v. SEPTA, 331 Pa.Super. 172, 177, 480 A.2d 299, 302 (1984). The fundamental consideration in determining the admissibility of evidence is whether it is relevant to a fact sought to be proved. Martin v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983). Generally, evidence is relevant when it tends to establish facts in issue or when it advances the inquiry and thus has probative value. Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 243, 433 A.2d 40, 47 (1981). Relevant evidence is nonetheless excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion. Id.

The question before the lower court concerned the fair market value of the collateral. The record shows that appellant’s expert was permitted to give his opinion regarding the fair market value of the aircraft at the time of its sale. N.T. 11/6/89 at 38-40. However, the trial court precluded the witness from merely reading advertisements from trade journals because there was no foundation laid as to whether the prices listed constituted an “asking price” or the “fair market value” of the merchandise. Id. at 38. Upon determining that the proposed testimony was confusing regarding the establishment of fair market value for the Piper Navajo, the trial court properly declined to admit the evidence. Id. We find no abuse of discretion in this ruling, and consequently uphold the action of the lower court.

Judgment affirmed.

      . The lower court docket sheet contains the following entry:
      October 29, 1990 @ 1:22 p.m. Praecipe to Enter Judgment on Order of Court September 5, 1990 AND NOW, this 29[th] day of October, 1990, judgment is entered on Court order of September 5, 1990 as per praecipe filed.
      Civil Docket of the Court of Common Pleas of Bradford County at 401 and 499B. Pursuant to Pa.R.A.P. 905(a), we will treat this appeal as being filed after and on the day judgment was entered. See Beasley v. Beasley, 334 Pa.Super. 510, 512 n. 3, 483 A.2d 853, 855 n. 3 (1984).

        . The certified record includes a copy of the "personal guarantee” agreement with Citizens and Northern Bank by which appellant explicitly designated himself a surety rather than a guarantor.

      . Although the term "surety” includes "guarantor” under 13 Pa.C.S.A. § 1201 (General definitions), there is no comparable provision stating that "guarantor” includes "surety.” For general definitions and the distinctions between contracts of guaranty and suretyship, see generally, Restatement of Security § 82 (1941) and Restatement of Security, Pennsylvania Annotations § 82 at 64-66 (1944), comment g (and cases cited thereunder). Under the Restatement, it appears that the primary difference between a surety and a guarantor is the time at which a creditor can collect from each. With regard to suretyship, the creditor can look to the surety for immediate payment upon the occurrence of a default by the principal obligor or debtor. Pennsylvania Annotations, supra. However, where an individual is a guarantor, the creditor must first attempt to collect the debt from the principal debtor/obligor before demanding performance from the guarantor. Id.

      . In the context of this case, the airplane was not “consumer goods" but rather was classified as "equipment" because it was used or bought for use primarily in business. 13 Pa.C.S.A. § 9109(2).

      . A litigant cannot succeed in a claim for damages stemming from prejudice under sections 9504(c) and 9507(a) unless he establishes that the contested sale has not been conducted in a commercially reasonable manner under section 9507(b). See 13 Pa.C.S.A. § 9507.


author: TAMILIA, Judge:

text:
    599 A.2d 681
    COMMONWEALTH of Pennsylvania, Appellant, v. Anthony BUONOPANE.
    Superior Court of Pennsylvania.
    Argued Sept. 24, 1991.
    Filed Nov. 21, 1991.
    Petition for Allowance of Appeal Denied June 2, 1992.

      Dennis C. McAndrews, Asst. Dist, Atty., Media, for Com.
    John G. McDougall, Philadelphia, for appellee.
    Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for amicus curiae.
    Before ROWLEY, President Judge, and McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

The Commonwealth appeals the final Order dated December 4, 1990 which granted appellee’s pretrial motion to preclude the Commonwealth from proceeding with the instant murder prosecution as a capital case.

Anthony Buonopane, appellee, was charged with murder for shooting a man six to eight times on a public street. At the time of arraignment, appellee was notified in conjunction with Pa.R.Crim.P. 352, Notice of aggravating circumstances, that the Commonwealth would seek the death penalty based upon the aggravating circumstance that the killing created a grave risk of death to two bystanders in addition to the victim. Appellee filed a pretrial petition claiming Pennsylvania’s capital sentencing procedures violate the fourteenth amendment by providing excessive discretion to prosecutors in determining which cases will be tried as capital offenses and asserting the aggravating circumstance might not be proven at trial. A pretrial hearing was held and a Delaware County deputy district attorney was compelled to testify concerning the procedures used by his office in designating murder prosecutions as capital cases. The Commonwealth requested an offer of proof prior to requiring the prosecutor to testify, but the court refused. The deputy district attorney’s testimony established that in evaluating homicide cases for potential capital prosecution, the final decision to seek a capital sentence is made after consultation with the chief of the trial division and upon review of the nature of the cases, the presence of aggravating circumstances and the presence of known potential mitigating circumstances. No evidence was presented or requested as to proof of the aggravating circumstance alleged by the Commonwealth. The trial court granted appellee’s motion and held the Commonwealth failed to establish the existence of an aggravating circumstance. Due to temporary medical disability, no Opinion was filed by the trial judge.

The Commonwealth argues the trial court committed a gross abuse of discretion by permitting a hearing for which there was no basis, by permitting interrogation of the prosecutor regarding his discretionary decision and by determining the Commonwealth failed to prove aggravating circumstances when no evidence was presented on this issue and case precedent states a trial court may not inquire into the existence of aggravating circumstances in a murder prosecution prior to the sentencing phase. Appellee argues the court’s decision was proper because the prosecutor did not consider any mitigating circumstances when it considered aggravating circumstances prior to arraignment. We agree with the Commonwealth and, therefore, reverse the trial court’s pretrial Order.

Not only did the trial court abuse its discretion in granting appellee’s pretrial motion, it never had the discretion to determine whether the Commonwealth should have proceeded with the prosecution as a capital case in the first place. The Pennsylvania Supreme Court has held a trial court may not make a pretrial determination as to the capital or noncapital nature of a murder prosecution. In Commonwealth ex rel. Fitzpatrick v. Bullock, 471 Pa. 292, 370 A.2d 309 (1977), the trial judge sua sponte decided to make a preliminary determination of whether a reasonable jury could find the death penalty applicable and after a hearing held the case was noncapital. The Court held the initial determination of the presence or absence of aggravating and mitigating circumstances in a jury trial for murder had to be made by the jury after it convicted the defendant of murder in the first degree, and the trial court was not authorized to make a pretrial determination of that issue. The Bullock Court reasoned as follows:

It may well be desirable or preferable, at least where the prosecution concedes the absence of aggravating circumstances and the court agrees, that the possibility of the death penalty be removed prior to trial, but, in view of the detailed legislative mandate as to the procedures to be followed with respect to the death penalty in a jury trial and the absence of any other pertinent statute, we can find no authority for the court to do so. A fortiori, we cannot approve of the evidentiary hearing utilized instantly to determine whether mitigating circumstances were present or of the court sua sponte determining pretrial that they were.

Id., 471 Pa. at 301-02, 370 A.2d at 313.

The Supreme Court reaffirmed Bullock in Commonwealth v. Tomoney, 488 Pa. 324, 412 A.2d 531 (1980), and rejected the defendant’s contention that pretrial certification of a case as capital or noncapital was desirable due to the strong possibility that a death qualified jury would be conviction prone. The Court stated “the requirement of individual voir dire in a capital case should give a defendant ample opportunity to explore for and isolate such bias.” Id. 488 Pa. at 330, 412 A.2d at 534 (citations omitted). This reasoning by the Court rejects appellee’s argument that the action of the trial court in conducting the pretrial hearing was consistent with the ability to conduct a fair trial since the characterization of this case as capital would have damaging effects, such as a death qualified jury.

The most recent Supreme Court case to address defense counsel’s challenges to prosecutorial discretion in capital cases is Commonwealth v. DeHart, 512 Pa. 234, 261-63, 516 A.2d 656, 670 (1986), in which the Court quoted the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 225, 96 S.Ct. 2909, 2949, 49 L.Ed.2d 859, 903 (1976):

Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. Unless prosecutors are incompetent in their judgments, the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is unsufficiently [sic] strong. This does not cause the system to be standardless —

Id. The DeHart Court concluded “[a]bsent some showing that prosecutorial discretion is being abused in the selection of cases in which the death penalty will be sought, there is no basis for appellant’s assertion [that the discretionary nature of the prosecutor’s decision of whether to seek the death penalty is unconstitutional].” Id., 512 Pa. at 262, 516 A.2d at 670. In McCleskey v. Kemp, 481 U.S. 279,107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), the United States Supreme Court noted prosecutorial discretion in a capital punishment system is necessary to satisfy the Constitution. The Supreme Court also stated “[i]f capital defendants are to be treated as ‘uniquely individual human beings,’ then discretion to evaluate and weigh the circumstances relevant to the particular defendant and the crime he committed is essential.” Id. at 313, n. 37, 107 S.Ct. at 1778, n. 37, 95 L.Ed.2d at 293, n. 37 (citations omitted).

Appellee has failed to show the prosecution abused its discretion in deciding to seek the death penalty. Testimony revealed the prosecution typically considers the statutory aggravating circumstances and any known mitigating circumstances. Considerations such as race, gender, national origin and religion play no role in the decision making process. Here, the Commonwealth did not abuse its discretion in considering the aggravating circumstance that appellee shot the victim many times while bystanders were extremely close to the scene. In fact, this very factual scenario is one of the circumstances enumerated in 42 Pa.C.S. § 9711(d)(7) Sentencing procedure for murder of the first degree, which states as follows: “(d) Aggravating circumstances. — Aggravating circumstances shall be limited to the following: ... (7) In the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense.”

We are further concerned with the trial court’s pretrial determination in that its interference with the prosecutor’s discretionary functions, absent a threshold showing of a valid claim of purposeful abuse, violates the constitutional principle of separation of powers. Courts will not review the actions of the executive branch involving acts of discretion in the absence of bad faith, fraud, capricious action or abuse of power; nor will they inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution. Pennsylvania Social Services Local 668 v. Pennsylvania Labor Relations Board, 481 Pa. 81, 392 A.2d 256 (1978). See also United States v. Sanchez, 908 F.2d 1443, 1445 (9th Cir.1990) (“[s]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion”) (citations omitted); United States v. Carrasco, 786 F.2d 1452, 1455 (9th Cir.1986) (“charging decisions are generally within the prosecutor’s exclusive domain”); and United States v. Miller, 722 F.2d 562, 565 (9th Cir.1983) (“[separation of powers requires that the judiciary remain independent of executive affairs”).

Finally, even if the trial court could have properly held a pretrial hearing to examine the prosecutor’s charging decision, though we reiterate our holding that the determination was improper, this case still would have to be reversed because appellee did not submit an offer of proof to show any impropriety and the court erred in determining sua sponte and without sufficient evidence that proof of aggravating circumstances was lacking. The trial court improperly compelled the chief of the district attorney’s trial division to testify, without any offer of proof or legal basis from the defense, regarding procedures used by the district attorney in evaluating murder cases for presentation as capital or noncapital offenses. Moreover, the trial court’s finding concerning a lack of proof of aggravating circumstances was baseless because no evidence was presented on this issue and the trial judge brought the issue to the hearing sua sponte. This Court has determined the prosecution has no inherent burden to prove pretrial that aggravating factors exist:

Defendant claims that the Commonwealth should be charged with the responsibility of knowing whether aggravating circumstances exist. However, witnesses’ trial testimony often differs from the statements they give prior to trial and it is often impossible for anyone to know prior to trial what testimony will be adduced at the trial. For example, 18 Pa.C.S. 1311(d)(7) provides that where a defendant knowingly creates a grave risk of death to another person in addition to the victim of the offense during the commission of the offense that an “aggravating circumstance” exists. Whether such a situation occurred during a murder is solely for the jury’s determination and may only be determined from the facts of each specific case presented during the trial of that case.

Commonwealth v. Martin, 273 Pa.Super. 88, 91, 416 A.2d 1102, 1104 (1977).

In light of the foregoing discussion, we reverse the trial court’s Order and remand the case for further proceedings in accordance with this Opinion.

Jurisdiction relinquished.

      . The district attorney’s office of Philadelphia filed an Amicus Curiae brief on behalf of the Commonwealth, arguing absent a showing of purposefully discriminatory prosecution, the trial court’s Order unlawfully and unconstitutionally usurps the prosecution function and appellee has no right to a hearing to see whether the prosecution considered alleged mitigating circumstances or any other factors.

      . Appellee cites Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986), as its main support in arguing the prosecutor’s decision to seek the death penalty should be based on the same standards the jury will use in deciding the sentence and, therefore, the prosecutor must consider both aggravating and mitigating circumstances. Appellee then contradicts his point by stating it would be impossible for the prosecution to consider mitigating circumstances before deciding whether to seek the death penalty since the prosecutor has no way to obtain the information of mitigating circumstances prior to arraignment. Id., 512 Pa. at 258, 516 A.2d at 668 ("[T]o require the Commonwealth to negate the existence of mitigating circumstances would be contrary to the long-established rule that recognizes the virtually impossible burden placed upon a party required to prove a negative”). Only the sentencer may determine what aspects of the crime or character traits of the appellee actually amount to mitigating circumstances. Commonwealth v. Copenhefer, 526 Pa. 555, 587 A.2d 1353 (1991). Moreover, the defendant has the sole burden of proving mitigation. 42 Pa.C.S. § 971 l(c)(l)(iii).

      . This case is analogous to one in which a district attorney’s decision to deny a defendant’s application for participation in an accelerated rehabilitative disposition (ARD) program was challenged. In Commonwealth v. Paul, 383 Pa.Super. 486, 557 A.2d 357 (1989), allocatur denied, 525 Pa. 633, 578 A.2d 927 (1990), this Court, citing Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), held a district attorney has sole discretion to submit a case for ARD and, absent considerations such as race or religion or other factors unrelated to the protection of society or likelihood of a persons success in rehabilitation, he must be free to submit a case or not submit it for ARD consideration. Here, as in Paul, the district attorney did not use any prohibited considerations in exercising his discretion.