author: HOFFMAN, Judge: HESTER, Judge,

text:
    468 A.2d 1134
    COMMONWEALTH of Pennsylvania v. Terry WALLER a/k/a Terry Wallace, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 14, 1983.
    Filed Dec. 16, 1983.

      Norris E. Gelman, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant alleges ineffectiveness of both trial and PCHA counsel in failing to adequately challenge the lower court’s second degree murder instructions. We agree and, accordingly, reverse and remand.

On September 6, 1973, appellant was arrested and charged with murder, conspiracy and possession of an instrument of crime in connection with the shooting of a rival gang member. Following a jury trial on September 20, 1974, appellant was convicted of second degree murder and criminal conspiracy, and sentenced to consecutive terms of ten-to-twenty years imprisonment for murder and five-to-ten years for conspiracy. Our Supreme Court affirmed the judgment of sentence. Commonwealth v. Wallace, 475 Pa. 27, 379 A.2d 558 (1977). Appellant’s subsequent Post Conviction Hearing Act (PCHA) petition was denied by the lower court on January 27, 1981, prompting this appeal.

“[Cjounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967) (emphasis in original). First, however, we must determine whether the issue underlying the charge of ineffectiveness is of “arguable merit”. Commonwealth v. Evans, 489 Pa. 85, 91, 413 A.2d 1025, 1028 (1980); accord, Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977). Here, appellant’s trial counsel failed to object or to take exception to the jury charge on second degree murder. We must therefore determine if the charge adequately and accurately set forth the law. Common wealth v. Wike, 269 Pa.Superior Ct. 141, 144, 409 A.2d 104, 105-06 (1979).

In evaluating the correctness of a jury charge, the charge must be read in its entirety and the general effect of the charge controls. Commonwealth v. Zettlemoyer, 500 Pa. 16, 46, 454 A.2d 937, 953 (1982); Commonwealth v. Lesher, 473 Pa. 141, 148, 373 A.2d 1088, 1091 (1977); Commonwealth v. Rodgers, 459 Pa. 129, 132, 327 A.2d 118, 120 (1974). The portion of the jury instructions at issue is as follows:

Now, in dealing with murder in the second degree, in order to not confuse you, but at the same time to make you fully aware, the difference between murder in the first degree and murder in the second degree primarily is this: that there is no malice aforethought. You just heard me define for you malice. Murder in the second degree is an intentional killing but without premeditation and without malice. That is to say, there is no legal justification for the killing. There was not necessarily a plan that was thought up, thinking before and there was no malice aforethought. Suppose I give you an example. An individual becomes very angry and he has no cause for becoming angry and as a result of this anger he picks up a weapon and he kills someone. This would constitute murder in the second degree. There is no lying in wait, there is no use of poison, there has been no premeditation. There has been no malice aforethought as defined by me. That is depravity of heart, cruelty, recklessness of the consequences, a disposition of mind regardless of social duty.

(N.T. October 4, 1974 at 178-79) (emphasis added). It is clear that the trial court incorrectly charged the jury that the crime of second degree murder does not require malice aforethought. The Commonwealth argues, however, that this error was remedied by the following curative instructions:

(1) The absence of malice, that is hardness of heart, cruelty, depravity, and lack of social duty. The absence of malice is the controlling element which can reduce an unlawful killing to voluntary manslaughter. (N.T. October 4, 1974 at 181).
(2) Therefore, to determine whether a homicide constitutes murder you must determine whether malice was present. (N.T. October 4, 1974 at 177).
(3) The difference [between first and second degree murders] lies in whether or not, I said that key word, was premeditation. (N.T. October 4, 1974 at 179).

Although a “prejudicial error in the charge may be rectified by remedial instructions,” Commonwealth v. Wortham, 471 Pa. 243, 247, 369 A.2d 1287, 1289 (1977), we believe that the lower court’s instructions were insufficient to nullify the prejudicial effect of the erroneous jury charge. “Where the jury is being instructed on the law, the language must be imperative.” Lobalzo v. Varoli, 409 Pa. 15, 19-20, 185 A.2d 557, 560 (1962). Here, the charge as a whole presented the jury with a clear misstatement of the law of second degree murder inserted between other accurate statements on voluntary manslaughter and murder, which only inferentially contradicted the misstatement. At best, the jury was faced with two contradictory definitions of second degree murder. This Court has stated that “[w]here the trial court charged both correctly and incorrectly on the same proposition and it is impossible to determine which instruction was followed by a jury, there must be a reversal.” Commonwealth v. Holloway, 212 Pa.Superior Ct. 250, 254, 242 A.2d 918, 920 (1968), citing Reiter v. Reiter, 159 Pa.Superior Ct. 344, 48 A.2d 66 (1946). Accord, Commonwealth v. Broeck ey, 364 Pa. 368, 374, 72 A.2d 134, 136 (1950) (“Where an erroneous instruction consists of a palpable misstatement of the law, it is not cured by a conflicting or contradictory one which correctly states the law on the point involved, unless the erroneous instruction is expressly withdrawn, for the jury, assuming as is their duty, that the instructions are all correct, may as readily follow the incorrect as the correct.”). See also Commonwealth v. Ewell, 456 Pa. 589, 595, 319 A.2d 153, 157 (1974) (“It is not for us to say what in fact happened in the jury room, or what would have happened if the jury had been correctly instructed.”); and Commonwealth v. Wortham, supra, 471 Pa. at 248, 369 A.2d at 1289 (1977) (“We have often granted new trials on the basis of inadequate, unclear, misleading or inappropriate charges.”).

Because the jury charge on second degree murder contained a prejudicial misstatement of the law which was not cured, we find that both trial and PCHA counsel had no reasonable basis for failing to raise a claim of such arguable merit. Accordingly, we must reverse and remand for a new trial.

Reversed and remanded. Jurisdiction is not retained.

POPOVICH, J., concurred in the result.

HESTER, J., filed a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent. I would affirm on the Opinion of Judge Blake of the court below.

      . A correct statement of murder in the second degree would be as follows:
      Malice aforethought is an element of murder in either degree, and distinguishes it from manslaughter. Commonwealth v. Kelley, 333 Pa. 280, 4 A.2d 805 (1939); Commonwealth v. Gibson, 275 Pa. 338, 119 A. 403 (1923).
      Malice is a necessary element of second degree murder. Commonwealth v. McLaughlin, 293 Pa. 218, 142 A. 213 (1928).

      . Because of our disposition of the case, we need not address appellant’s remaining contentions.
      We decline the Commonwealth's request that we direct the lower court to enter a verdict of voluntary manslaughter and resentence appellant. Commonwealth v. Bachert, 271 Pa.Superior Ct. 72, 86-87, 412 A.2d 580, 587 (1979) (WIEAND, J. dissenting), cited by the Commonwealth, refers to several federal and state cases. However, no Pennsylvania cases authorize such a procedure.


source: Caselaw Access Project

author: HESTER, Judge: BECK, Judge,

license: Public Domain

text:
    468 A.2d 1137
    COMMONWEALTH of Pennsylvania v. Julio RODRIGUEZ, a/k/a Jose Diaz, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 19, 1983.
    Filed Dec. 16, 1983.
    Petition for Allowance of Appeal Denied April 2, 1984.

      Dana Rakinic, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   HESTER, Judge:

On May 6, 1976, appellant was tried non-jury in the Court of Common Pleas of Philadelphia County. He was convicted of robbery, simple assault and criminal conspiracy. Appellant then fled the jurisdiction to Puerto Rico and failed to appear for sentencing. He was apprehended in February, 1981. Argument on post-verdict motions was continued to October 19, 1981, due to a series of continuances requested by appellant’s counsel. Post-verdict motions were denied and a five year period'of probation was imposed on the criminal conspiracy conviction, while sentences on the robbery and simple assault convictions were suspended.

The facts of the case are as follows:

On January 3, 1974, at approximately 2:00 a.m. in the Randolph Club’s parking lot on Fifth Street in Downtown Philadelphia, Estoban Montalvo was surrounded by five or six men, one of which was appellant. One man grabbed Mr. Montalvo around the neck while the others, including appellant, grabbed him around the waist. The men proceeded to take Mr. Montalvo’s wallet and watch. Mr. Montalvo had approximately $200.00 dollars in his wallet while his watch was valued at approximately $35.00. Subsequently, the men fled north on Fifth Street.

Appellant raises two issues on appeal: (1) whether the appellant’s Rule 1100 rights were violated; and (2) whether appellant’s trial counsel was ineffective in not raising a motion to dismiss under Rule 1100. Appellant specifically contends that since the complaint in this case was sworn on October 22, 1974, and appellant was not arrested until August 2, 1975, that his trial counsel should have filed a motion to dismiss under Rule 1100 since he originally waived his 180-day rights on December 8, 1975. It is to be noted that the period between the date of the filing of the complaint and the date of appellant’s arrest would be excludable time from the 180-day limit if the Commonwealth, by a preponderance of the evidence, proves that the police exercised due diligence in trying to locate appellant. See Pa.R.Crim.P. 1100(d)(1); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Dorsey, 294 Pa.Super. 584, 440 A.2d 619 (1982); Commonwealth v. Jones, 256 Pa.Super. 366, 389 A.2d 1167 (1978).

However, we will first consider whether appellant’s seven year delay in raising this issue bars consideration of the merits of his claim. It is to be noted that the delay here in raising this issue was solely occasioned by appellant’s fleeing the jurisdiction following his conviction. Seven years have passed since appellant robbed and assaulted Mr. Montalvo, the Commonwealth would be severely prejudiced in attempting to meet its’ burden of due diligence in apprehending appellant, due to the possibility of dimmed memories and difficulty in locating witnesses. Also, this delay was solely the result of appellant fleeing the jurisdiction. We are of the opinion that appellant’s delay bars consideration of the merits of his claim. Commonwealth ex rel. Diggs v. Banmiller, 191 Pa.Super. 101, 155 A.2d 402 (1959); Commonwealth ex rel. Robinson v. Cavell, 185 Pa.Super. 52, 138 A.2d 172 (1958); Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982) (Roberts, J., joined by O’Brien, C.J., and Nix, J., concurring); Commonwealth v. Minarik, 493 Pa. 573, 427 A.2d 623 (1981) (Roberts, J., joined by O’Brien, C.J., and Nix, J., concurring).

Judgment of sentence affirmed.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I respectfully dissent. Today this Court holds that appellant’s absence from the jurisdiction between his trial and sentencing, thereby causing delay in sentencing, bars us from reaching the merits of his properly perfected appeal. There is no support in the law of Pennsylvania for such a deprivation of a defendant’s right to appeal. I would find appellant’s ineffectiveness claim properly before this Court and would remand the case for an evidentiary hearing.

A brief recitation of the history of this case is in order. Appellant was arrested on August 2, 1975, and charged with robbery, conspiracy, and assault. The complaint had been filed on October 22, 1974. Appellant was found guilty of all charges at a bench trial on May 6, 1976. Having fled the jurisdiction, appellant did not appear for sentencing on July 22, 1976. He was reapprehended in February 1981. New counsel was appointed to represent appellant on March 9, 1981. With leave of court, post-verdict motions were filed nunc pro tunc on June 22, 1981 and were denied on October 19, 1981. Appellant was sentenced to five years’ probation. This appeal followed.

As in his post-verdict motions, appellant contends that his trial counsel was ineffective in not raising the issue of whether appellant received a prompt trial in compliance with Pa.R.Crim.P. 1100. Specifically, appellant argues that counsel should have filed a pretrial motion to dismiss under Rule 1100(f).

The majority points out that appellant delayed raising his ineffectiveness claim for seven years because of his absence. However, it must be noted that ineffectiveness could only be raised after appellant was returned to the jurisdiction, and that ineffectiveness must be raised at the earliest stage of the proceedings at which the allegedly ineffective counsel no longer represents the defendant. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Johnson, 298 Pa.Super. 493, 444 A.2d 1291 (1982). New counsel did not arrive on the scene until March 1981. Hence, the first opportunity for appellant to make his ineffectiveness claim was at the post-verdict motions in 1981, and he properly did so. Only then was a judgment of sentence entered. Before the judgment of sentence, Rodriguez could not have taken this appeal. Commonwealth v. Cavanaugh, 500 Pa. 313, 456 A.2d 145 (1983).

The majority does not specifically contend that it was not within the power or the sound discretion of the trial court to allow appellant to file his post-verdict motions nunc pro tunc. It seems reasonable that if the trial court was correct in hearing the issue, the appellate court ought to review the trial court unless extraordinary circumstance commands the contrary. Indeed, this Court has specifically held that when an appellant, having fled between conviction and post-verdict motions, is. returned to the court’s jurisdiction, “this court may grant leave to re-file post-trial motions.” Commonwealth v. Clark, 300 Pa.Super. 315, 318, 446 A.2d 633, 634 (1982). In placing this decision within the trial court’s discretion, we recognize that there could be a situation where the defendant’s actions caused a delay which so unduly prejudiced the Commonwealth that defendant’s claims should not be heard by the trial court. However, the record of this case shows no more than the “possibility” (using the majority’s word) that some memories have dimmed. Lacking any definite evidence of extreme prejudice, we must conclude that the trial court did not abuse its discretion in permitting the filing of post-verdict motions nunc pro tunc. Appellant properly had an opportunity to litigate his ineffectiveness claims on the merits at post-verdict motions, and he received a ruling thereon. Justice requires that he be heard on a timely filed direct appeal from the lower court’s judgment which followed.

Moreover, however we characterize the nature and length of any delay here, it is not fatal to appellant’s claim. The Supreme Court has held that a claim of ineffectiveness based on the failure to assert a speedy trial claim was preserved despite a six-year delay. Commonwealth v. Roundtree, 469 Pa. 241, 364 A.2d 1359 (Pa. 1976). This Court has likewise held that collateral attacks on judgments could be made after significant lapses of time. See Commonwealth v. Kenney, 317 Pa.Super. 175, 177, 463 A.2d 1142, 1143 n. 1 (1983) (seven-year delay before PCHA petition raising ineffectiveness issues not a bar but “is a factor which may be considered in assessing the merits thereof”); Commonwealth ex rel. Diggs v. Banmiller, 191 Pa.Super. 101, 155 A.2d 402 (1959) (court does reach merits of habeas petition despite sixteen-year delay; only holds that lapse of time adds weight to the presumption of regularity of the judgment). In both Kenney and Diggs the delay was at least in part attributable to defendant’s inaction. There is no reason for a defendant to have less freedom to take a direct appeal than to bring a collateral action. At most, therefore, the passage of time in the instant case requires us to scrutinize appellant’s claim more critically.

Turning to the merits of this appeal, appellant contends that trial counsel acted ineffectively by not moving to dismiss the charges on Rule 1100 grounds because more than 180 days had elapsed between the date of the complaint and appellant’s arrest. In considering an ineffectiveness claim, “we must first decide whether or not the issue that counsel failed to raise or to preserve had some arguable merit. If we decide that the issue had some arguable merit, we must proceed to consider whether or not the course adopted by counsel had some reasonable basis.” Commonwealth v. Tate, 299 Pa.Super. 518, 521, 445 A.2d 1250, 1251 (1982) (citations omitted). The failure to assert a meritorious Rule 1100 claim has no reasonable basis and will constitute ineffective assistance of counsel. Common wealth v. Franklin, 306 Pa.Super. 382, 452 A.2d 777 (1982); Commonwealth v. Jackson, 262 Pa.Super. 151, 396 A.2d 690 (1978). Therefore, the key issue is whether appellant’s underlying Rule 1100 claim has arguable merit.

It is undisputed that more than 180 days elapsed between the complaint and appellant’s arrest. Therefore, unless this time is excludable under subsection (d)(1) of Rule 1100 by virtue of the Commonwealth’s due diligence in attempting to find appellant, appellant was not brought to trial within the prescribed time. The burden of proving due diligence is on the Commonwealth. Commonwealth v. Ryan, 306 Pa. Super. 159, 452 A.2d 264 (1982); Commonwealth v. Wroten, 305 Pa.Super. 340, 451 A.2d 678 (1982). Determinations of excludable time under Pa.R.Crim.P. 1100(d)(1) are made when the defendant files for dismissal under Rule 1100(f). Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). Since no such motion was filed by trial counsel, the Commonwealth was never challenged to meet its burden.

In addressing appellant’s claim that counsel was ineffective in not moving to dismiss, we must recognize that the burden of showing ineffective assistance of counsel is on the defendant. Commonwealth v. Gay, 489 Pa. 17, 413 A.2d 675 (1980); Commonwealth v. Moody, 295 Pa.Super. 106, 441 A.2d 371 (1982). However, this is not equivalent to a burden of proving the merits of the underlying claim. According to Commonwealth v. Hubbard, supra, all appellant need show is that the underlying Rule 1100 claim has arguable merit and that counsel had no reasonable basis for not raising the issue.

I would conclude that appellant has carried his burden of showing arguable merit and that the record is inadequate to reach a conclusion on whether counsel’s inaction had any reasonable basis. When the record is inadequate to permit an appellate court to decide an ineffectiveness claim, the proper remedy is to remand for an evidentiary hearing. Commonwealth v. Tate, supra. I would remand for a hearing on whether or not trial counsel had any reasonable basis for his decision not to challenge the Commonwealth to prove its due diligence during the period between the complaint and appellant’s arrest.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 903.


author: WICKERSHAM, Judge: CERCONE, President Judge,

text:
    469 A.2d 162
    COMMONWEALTH of Pennsylvania v. David Paul CASE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 9, 1980.
    Filed Oct. 28, 1983.
    Reargument Denied Jan. 13, 1984.
    Petition for Allowance of Appeal Granted May 21, 1984.

      David B. Keeffe, Wellsboro, for appellant.
    Rudolph Van der Heil, Assistant District Attorney, Wellsboro, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WICKERSHAM and LIPEZ, JJ.
   WICKERSHAM, Judge:

This case comes to us as appellant David Paul Cases’s challenge to his conviction on three counts of receiving stolen property. Case was arrested as a result of a police investigation into burglaries in Wellsboro, Pennsylvania. An omnibus pre-trial motion was filed on Case’s behalf seeking to suppress statements Case made to the police shortly after his arrest. The motion was denied and the matter proceeded to trial before President Judge Robert M. Kemp and a jury. After Case’s conviction, his post-trial motions were denied; Case was sentenced to pay a fine and serve a term of imprisonment. This appeal timely followed.

The evidence presented at trial showed that on April 29, 1978, the Western Auto store in Wellsboro was broken into and several pistols were stolen. In mid May 1978, the J.E. Clark sporting goods store was also burglarized. The Clark store lost guns and knives to the burglars. Police investigation of these incidents led to the filing of burglary charges against several juveniles. The juveniles told the police that they gave many stolen items to Case in exchange for marijuana.

A warrant then issued for Case’s arrest, which was effected by a constable and an Officer Slavadge of the Wellsboro Police Department. At the time of his arrest Case stated that he wanted to speak to a lawyer. Officer Salvadge took Case to the Wellsboro Police Station and there advised Case of his Miranda rights.

Case refused to waive his Miranda rights or make a statement. While being fingerprinted in the county jail Case indicated to Officer Salvadge that he would make a statement if he received a deal. In the presence of another police officer Salvadge repeated Case’s Miranda rights. Case stated that he knew where the guns were and would, return the guns if he got a deal. The police said they had no authority to make a deal and even had an assistant district attorney explain to Case that a deal could only be struck if Case had an attorney.

Case’s first issue is:

Did the trial court err in failing to grant the defendant’s motion to suppress the defendant’s incriminatory statement made at the jail house?

Brief for Appellant at 1.

Case argues that his request at the time of his arrest for a lawyer precluded the police from asking him if he wished to make a statement. Further, Case contends that he never expressly waived his Miranda rights.

The decision of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), stands for the proposition that before custodial interrogation a person must be informed of his right to remain silent and his right to counsel. Both of these rights are, however, subject to waiver. A person questioned by the police can make a voluntary, knowing and intelligent waiver of his rights: nothing in Miranda prevents a suspect from making a voluntary confession.

In this case it is clear that Case’s Miranda rights were not violated. Case indicated that he wanted a lawyer when he was arrested, nevertheless, a police officer explained Case’s Miranda rights. The police asked Case if he wished to give a statement but Case in fact relied on his right to remain silent. The police officer dropped the matter and began fingerprinting Case for booking. It was during this procedure, a normal part of arrest and custody, that Case first said he wished to make a statement. In response to Case, the police officer stated that he could not negotiate a deal and repeated Case’s Miranda rights, yet Case made a statement.

Miranda proscribes custodial interrogation unless the suspect’s lawyer is present to protect his rights. Here, Case’s statement was not a product of police interrogation. The police properly gave Case his Miranda rights, asked if he wished to speak and did not pursue the matter when Case stood silent but rather turned to the routine task of fingerprinting the suspect. It was Case himself who broached the topic of making a statement. When Case did so, the police officer properly told Case he had no authority to make a deal and again gave Case his Miranda rights. Case’s statement was not given in violation of his constitutional right to remain silent or his right to counsel.

Case’s second issue is:

Did the trial court err in prohibiting the defense counsel during trial from cross-examining the juvenile witnesses concerning their mutual involvement in burglaries a month before the crimes for which the defendant was on trial?

Appellant next argues that the trial court erred when it refused to permit appellant to cross-examine the prosecution’s juvenile witnesses regarding portions of their juvenile records, thus denying appellant his Sixth Amendment right to confront the witnesses against him. These witnesses, prior to appellant’s trial, had all been adjudged delinquent for committing various burglaries and thefts. The evidence regarding the juveniles’ participation in two of these burglaries, to wit: at a Western Auto Store and at Clark’s Sporting Goods Store, was introduced at trial because it was alleged that the juveniles sold the stolen items to appellant. Defense counsel, however, also sought to introduce evidence of the participation of the juveniles in a prior robbery at Harry’s Convenient Mart and in the theft of batteries from a truck belonging to the U.S. Department of Soil and Conservation.

In Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973), our supreme court held that the trial court committed reversible error in permitting the prosecution to cross-examine the defendant’s alibi witnesses concerning their prior juvenile offenses. The one witness had admitted to shoplifting at age sixteen and the other to under-age drinking. Besides noting the absence of elements of crimen falsi in under-age drinking, the court wrote that adjudications of delinquency should not be used for impeachment purposes in cases such as Katchmer because the legislature has explicitly directed that juvenile adjudications do not rise to the level of an adult criminal conviction. The court felt that this was particularly true where, as in Katchmer, the outcome of the trial depended entirely upon the resolution of the direct conflict between the testimony of the prosecution’s main witness on one hand and that of defendant and his alibi witnesses on the other.

Subsequent to Katchmer, the United States Supreme Court handed down its opinion in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), in which it held that the trial court’s refusal to allow the defendant to cross-examine a key prosecution witness regarding the latter’s probationary status following an adjudication of juvenile delinquency denied the defendant his right under the Sixth Amendment to the United States Constitution to confront the witnesses against him, notwithstanding the state’s policy protecting the anonymity of juvenile offenders.

The Court said:

The State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. The State could have protected [its witness] from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State’s interest in the secrecy of juvenile criminal records.

Id. at 320, 94 S.Ct. at 1112 (emphasis added).

Several years after Davis, our supreme court was again called upon to decide a case dealing with impeachment by use of juvenile records. In Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978), the court reconciled the Katchmer decision with that of Davis. The court pointed out that in Katchmer, reversible error was found in permitting the prosecution to cross-examine defense alibi witnesses concerning prior juvenile offenses. For this reason, there was no conflict between that case and Davis, where the focus was upon the constitutional right of a defendant to cross-examine the witnesses against him. The facts in Slaughter were found to be more akin to those in Davis than in Katchmer, for in Slaughter, the defense had sought to obtain a copy of a prosecution witness’s juvenile record, if such a record existed. The defense’s request was denied by the trial court on the grounds that juvenile records are inadmissible. On appeal, the court reversed and remanded with instructions, saying:

... that appellant, through his counsel, be given access to Ragland’s [the prosecution’s witness] juvenile record. Counsel will then be able to argue to the trial court what, if any, use could have been made of that record had he been allowed to use it to cross-examine Ragland. If, in the court’s opinion, its original refusal to allow defense counsel to cross-examine Ragland on the basis of this juvenile record prevented appellant from presenting to the jury evidence regarding Ragland’s possible bias, or other information which would bring the case within the requirements of Davis, supra, it shall vacate the judgment of sentence and order a new trial. If, on the other hand, Ragland has no juvenile record, or if in the court’s opinion, appellant has failed to assert any facts which would bring the case within the rationale of Davis, supra, it shall affirm its original order.

Id., 482 Pa. at 553, 394 A.2d at 460.

As noted, in Davis v. Alaska, the Supreme Court held that the defendant had the right to cross-examine a key prosecution witness concerning the witness’s juvenile record and resultant probationary status because it reflected a possible bias, i.e., the witness might testify so as to please the prosecution since he was under the supervision of the state. The logical connection between the fact that the witness was on probation, and the inference to be drawn, that the witness might be biased toward the state, is clear and direct.

There is however no logical connection between the facts Case wished to prove and the inference to be drawn from those facts. Case wanted to establish the following facts:

(1) The juvenile witnesses were involved in a robbery at Harry’s Convenient Mart; and
(2) the juvenile witnesses stole batteries from a U.S. Soil Conservation Service truck; and
(3) the juvenile witnesses did not implicate Case in, these crimes; and
(4) the juvenile witnesses were involved in a burglary at Western Auto; and
(5) the juvenile witnesses were involved in a burglary at Clarks’ Sporting Goods; but
(6) the juvenile witnesses implicated Case in the burglaries at Western Auto and Clark’s Sporting Goods.

From these facts Case wished to argue that the juvenile witnesses accused him to cover up for friends involved in the Western Auto and Clark’s Sporting Goods burglaries.

There is no logical connection between the facts and the argument Case wished to present. At most, the facts show that the juvenile witnesses committed some crimes on their own and some crimes at Case’s behest. That the juvenile witnesses committed two crimes and did not implicate Case does not demonstrate bias. The juvenile witnesses would naturally be biased in favor of their friends completely independent of whether the juvenile witnesses had a juvenile record or not. That the juvenile witnesses against Case might be covering-up for their friends does not follow from the unrelated fact that they were involved in two prior crimes.

We hold therefore that the trial judge correctly ruled that the juvenile witnesses’ prior delinquency records relating to the robbery at Harry’s Convenient Mart and the theft from a U.S. Soil Conservation Service truck were irrelevant to the contention defense counsel advanced.

Judgment of sentence affirmed.

CERCONE, President Judge, filed a concurring and dissenting opinion.

CERCONE, President Judge,

concurring and dissenting:

While I agree with the majority’s disposition of appellant’s Miranda issue, I must dissent from the holding of the majority with regard to appellant’s impeachment issue.

Appellant argues that the trial court erred when it refused to permit appellant to cross-examine the prosecution’s juvenile witnesses regarding portions of their juvenile records, thus denying appellant his Sixth Amendment right to confront the witnesses against him. These witnesses, prior to appellant’s trial, had all been adjudged delinquent for committing various burglaries and thefts. The evidence regarding the juveniles’ participation in two of these burglaries at Western Auto Store and at Clark’s Sporting Goods Store was introduced at trial because it was alleged that the juveniles sold the stolen items to appellant. However, defense counsel also sought to introduce evidence of the juveniles’ participation in a prior robbery at Harry’s Convenient Mart and in the theft of batteries from a truck belonging to the U.S. Department of Soil and Conservation. Defense counsel’s intended use for this evidence was twofold — an attack on credibility based on crimes involving crimen falsi and a demonstration of bias on the part of the juvenile witnesses. The defense’s bias argument was based on the fact that the juveniles were implicating appellant in the two crimes at issue in an attempt to cover up or protect other such culpable juveniles.

In Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973), our Supreme Court held that the trial court committed reversible error in permitting the prosecution to cross-examine the defendant’s alibi witnesses concerning their prior juvenile offenses. The one witness had admitted to shoplifting at age sixteen and the other to under age drinking. Besides noting the absence of elements of crimen falsi in under age drinking, the Court wrote that adjudications of delinquency should not be used for impeachment purposes in cases such as Katchmer because the legislature has explicitedly directed that juvenile adjudications do not rise to the level of an adult criminal conviction. The Court felt that this was particularly true where, as in Katchmer, the outcome of the trial depended entirely upon the resolution of the direct conflict between the testimony of the prosecution’s main witness on one hand and that of defendant and his alibi witnesses on the other.

Subsequent to Katchmer, the United States Supreme Court handed down its opinion in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), in which it held that the trial court’s refusal to allow the defendant to cross-examine a key prosecution witness regarding the latter’s probationary status following an adjudication of juvenile delinquency denied the defendant his right under the Sixth Amendment to the United States Constitution to eon-front the witnesses against him, notwithstanding the state’s policy protecting anonymity of juvenile offenders. The Court discussed at length the significance of cross-examination in the context of the Sixth Amendment thusly:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are .tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit the witness. One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is “always relevant as discrediting the witness and affecting the weight of his testimony.” 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959). Id. 415 U.S. at 316-317, 94 S.Ct. at 1110. (footnote omitted) (emphasis added).

The Court then made its ruling, saying:

The State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. The State could have protected [its witness] from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State’s interest in the secrecy of juvenile criminal records.

Id. at 320, 94 S.Ct. at 1112 (emphasis added).

Several years after Davis, our Supreme Court was again called upon to decide a case dealing with impeachment by use of juvenile records. In Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978), the Court reconciled the Katchmer decision with that of Davis. The Court pointed out in Katchmer, reversible error was found in permitting the prosecution to cross-examine defense alibi witnesses concerning prior juvenile offenses. For this reason, the Court found that there was no conflict between that case and Davis, where the focus was upon the constitutional right of a defendant to cross-examine the witnesses against him. The facts in Slaughter were found to be more akin to those in Davis than in Katchmer, for in Slaughter, the defense had sought to obtain a copy of a prosecution witness’s juvenile record, if such a record existed. The defense’s request was denied by the trial court on the grounds that juvenile records are inadmissible. On appeal, the Court reversed and remanded with instructions, saying:

... that appellant, through his counsel, be given access to Ragland’s [the prosecution’s witness] juvenile record. Counsel will then be able to argue to the trial court what, if any, use could have been made of that record had he been allowed to use it to cross-examine Ragland. If, in the court’s opinion, its original refusal to allow defense counsel to cross-examine Ragland on the basis of this juvenile record prevented appellant from presenting to the jury evidence regarding Ragland’s possible bias, or other information which would bring the case within the requirements of Davis, supra, it shall vacate the judgment of sentence and order a new trial. If, on the other hand, Ragland has no juvenile record, or if in the court’s opinion, appellant has failed to assert any facts which would bring the case within the rationale of Davis, supra, it shall affirm its original order.

Id., 482 Pa. at 553, 394 A.2d at 460.

Turning now to the facts of appellant’s case, I would hold that the court erred when it refused to allow the defense to introduce the additional prior criminal acts of the prosecution witnesses. The court’s ruling denied appellant the opportunity of arguing to the jury the bias and prejudice of the juvenile witnesses. Furthermore, it cannot be gainsaid that because the jury heard the juveniles admit their participation in the two burglaries and thefts (from Western Auto Store and Clark’s Sporting Goods Store), the fruits of which appellant was accused of receiving, that it was harmless error for the court to refuse to allow evidence of the juveniles’ involvement in two prior thefts (from Harry’s Convenient Mart and the U.S. Department of Soil and Conservation) to be introduced. It could be that although the juveniles were acknowledging their own guilt for the crimes at bar, their admissions actually bolstered their credibility regarding their accusation of appellant because it appeared as if the juveniles had decided to “tell all.” This may, indeed, be what they had decided to do, but nonetheless appellant was denied his Sixth Amendment right to impeach juveniles when the court refused to allow appellant to cross-examine the youths regarding their participation in the thefts at Harry’s Convenient Mart and the U.S. Department of Soil and Conservation. Accordingly, I would reverse appellant’s conviction and remand for a new trial.

      . In Katchmer, the court relied upon the Juvenile Court Act of 1933, Act of June 2, 1933, P.L. 1433, § 19, 11 P.S. § 261. This act was repealed by the Act of December 6, 1972, P.L. 1464, No. 333, § 337, 11 P.S. § 50-337, and substantially re-enacted by the Juvenile Act of 1972, Act of December 6, 1972, P.L. 1464, No. 333, § 27, 11 P.S. § 50-324. This latter section has since been repealed but was substantially re-enacted by the Juvenile Act of 1976, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 6354(b) (1982).

      . The Sixth Amendment was held to be binding upon the states through the Fourteenth Amendment by the United States Supreme Court’s decisions in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), and Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

      . In Katchmer, the Court relied upon the Juvenile Court Act of 1933, Act of June 2, 1933, P.L. 1433, § 19, 11 P.S. § 261. This act was repealed by the Act of December 6, 1972, P.L. 1464, No. 333, § 337, 11 P.S. § 50-337, and substantially re-enacted by the Juvenile Act of 1972, Act of December 6, 1972, P.L. 1464, No. 333, § 27, 11 P.S. § 50-324. This latter section has since been repealed but was substantially re-enacted by the Juvenile Act of 1976, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 6354(b) (1982).

      . The Sixth Amendment was held to be binding upon the states through the Fourteenth Amendment by the United States Supreme Court’s decisions in Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), and Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

      . I acknowledge that it would seem that the decision which I suggest today would be in conflict with our prior decisions of Commonwealth
        v. Dombrauskas, 274 Pa.Superior Ct. 452, 418 A.2d 493 (1980), and Commonwealth v. Pilosky, 239 Pa.Superior Ct. 233, 362 A.2d 253 (1976), where we held that the then effective Juvenile Act of December 6, 1972, P.L. 1464, No. 333, § 27(b), 11 P.S. § 50-324(b) prohibited an accused’s use on cross-examination of a witness’s prior adjudication for delinquency. (This act has since been repealed and substantially re-enacted. See Juvenile Act of 1976, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 6354(b) (1982). Nevertheless, I would find that there is no conflict here since the constitutional question was not addressed in either Dombrauskas or Pilosky. It is the well-settled rule that issues not raised in the court below are waived and cannot be raised for the first time on appeal; this rule holds true even for issues of a constitutional dimension. Doner v. Jowitt and Rodgers Co., 484 Pa. 496, 399 A.2d 402 (1979); Policino v. Ehrlich, 478 Pa. 5, 385 A.2d 968 (1977); Commonwealth ex rel. Bulson v. Bulson, 278 Pa.Superior Ct. 6, 419 A.2d 1327 (1980); Strickler v. United Elevator Co., Inc., 257 Pa.Superior Ct. 542, 391 A.2d 614 (1978). Therefore, the constitutional question now raised has not heretofore been decided by this Court.


author: WIEAND, Judge: BROSKY, Judge,

text:
    469 A.2d 169
    COMMONWEALTH of Pennsylvania v. Ronald GRAY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1983.
    Filed Nov. 10, 1983.
    Reargument Denied Jan. 19, 1984.
    Petition for Allowance of Appeal Granted July 11, 1984.

      David M. McGlaughlin, State College, for appellant.

      Kenneth D. Brown, District Attorney, Williamsport, for Commonwealth, appellee.
    Before BROSKY, WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

In this appeal from judgment of sentence imposed following the conviction of Ronald Gray for possession of marijuana with intent to deliver, Gray contends that the evidence was insufficient to sustain the conviction. In the alternative, he contends that the trial court erred in denying pre-trial motions to suppress evidence and for a writ of habeas corpus. Finding no merit in these contentions, we affirm the judgment of sentence.

“ ‘The test of sufficiency of the evidence — irrespective of whether it is direct or circumstantial, or both — is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.’ ” Commonwealth v. Minoske, 295 Pa.Super. 192, 198, 441 A.2d 414, 417 (1982) quoting Commonwealth v. Frye, 433 Pa. 473, 481, 252 A.2d 580, 584 (1969). Accord: Commonwealth v. Giles, 500 Pa. 413, 415, 456 A.2d 1356, 1357 (1983). In making this determination, we evaluate the entire trial record and consider all evidence actually received, whether or not the trial court’s rulings thereon were correct. Commonwealth v. Waldman, 484 Pa. 217, 222-223, 398 A.2d 1022, 1025 (1979); Commonwealth v. Barnes, 310 Pa.Super. 480, 483, 456 A.2d 1037, 1038 (1983).

When so viewed, the evidence introduced at trial established that appellant, Ronald Gray, and one Brenda Summers were occupants of a home in a rural area of Lycoming County, Pennsylvania. On January 27, 1981, a search warrant was obtained for their residence and for two vehicles believed to be owned by or in the possession of Gray and Summers. As noted in the trial court’s opinion, “[pjolice officers first approached ... Gray at approximately noon on January 27, 1981, outside the Federal Courthouse in Williamsport, where Gray was employed. Trooper Lampman of the Pennsylvania State Police advised Gray that he had a search warrant for Gray’s house and two vehicles, and asked Gray to accompany the officers when the search warrant was executed. Gray responded to the effect that he was going back inside, and walked away. The officers then went to Gray’s residence ... and met other police officers there who were executing the search warrant at the house. Trooper Carey was directing the search of the premises. When Trooper Carey [had] arrived at the residence at 1:00 p.m., no one was present. Brenda Summers [had] arrived at approximately 1:20 p.m. She [had] demanded a copy of the search warrant, after which the search began. The search of the house yielded a small amount of marijuana, 41 grocery bags which smelled of marijuana, and various items of what Trooper Carey identified as ‘drug paraphernalia’, including scales, cigarette papers, and a ‘hash pipe’, among other things. Trooper Carey was permitted to testify as an expert witness with respect to the odor of marijuana and the use of the items of paraphernalia, over [appellant’s] objection. The officers also searched the 1966 Impala, which had been placed on cinder blocks in the driveway of the residence. Since no keys to the car were found in the house or on the person of Miss Summers, the officers had to force the trunk open to search the car. In the trunk they found a garbage bag and an apple box, which between them contained twenty ‘Zip-lock’ plastic bags, each containing marijuana. [Nineteen] of the bags contained approximately one pound of marijuana, the other contained a smaller amount. Trooper Carey was also permitted to testify as an expert concerning the amount of marijuana that one might possess for personal use as opposed to sale and distribution, and the use of a ‘stash place’ outside of the home for one who was dealing in marijuana. It was his opinion that the amount of marijuana found in the case, combined with the way it was packaged, indicated that it was to be sold. The search of the house had also turned up a temporary registration for the 1966 Impala in the driveway which indicated that Ronald Gray was the owner.”

Because the marijuana in the trunk of the automobile was not found upon appellant’s person, it was incumbent upon the Commonwealth to prove constructive possession. Commonwealth v. Minoske, supra 295 Pa.Super. at 197, 441 A.2d at 417; Commonwealth v. Stokes, 294 Pa.Super. 529, 539, 440 A.2d 591, 596 (1982). “To prove constructive possession, the Commonwealth [was] required to demonstrate that the accused had the power to control the contraband and the intent to exercise that power.” Commonwealth v. Jones, 250 Pa.Super. 236, 239, 378 A.2d 914, 915 (1977) (citations omitted). Accord: Commonwealth v. Minoske, supra 295 Pa.Super. at 198, 441 A.2d at 417; Commonwealth v. Thompson, 286 Pa.Super. 31, 34, 428 A.2d 223, 224 (1981); Commonwealth v. Daniels, 281 Pa.Super. 334, 338, 422 A.2d 196, 197-198 (1980). These elements may be inferred from the totality of the circumstances. Commonwealth v. Samuels, 235 Pa.Super. 192, 205, 340 A.2d 880, 886 (1975). Where contraband is found among the defendant’s personal effects, in a place normally accessible only to the defendant, the fact finder may properly infer that the defendant had both the power and intent to control the contraband. Commonwealth v. Minoske, supra 295 Pa.Super. at 198, 441 A.2d at 417; Commonwealth v. Jones, supra 250 Pa.Super. at 241, 378 A.2d at 916; Commonwealth v. Samuels, supra 235 Pa.Super. at 206, 340 A.2d at 887.

In the instant case, the Commonwealth’s evidence established that appellant and Ms. Summers were the occupants of the house, that twenty bags containing marijuana were found in the locked trunk of a 1966 Impala automobile registered to appellant and resting on blocks in the driveway of the house. Although the fact of possession will lose persuasiveness if persons other than the accused have equal access to the place where-the contraband is found, a locked automobile trunk is not a place generally accessible to persons other than the owner of the automobile. See and compare: Commonwealth v. Griffin, 230 Pa.Super. 425, 326 A.2d 554 (1974). Moreover, the automobile in this case was inoperable and had been stored on blocks in the driveway of appellant’s rural home. Under the totality of the circumstances shown by the Commonwealth, the trier of the facts could properly infer appellant’s possession of the marijuana beyond a reasonable doubt. See: Commonwealth v. Minoske, supra; Commonwealth v. Jones, supra; Commonwealth v. Samuels, supra; Commonwealth v. Ferguson, 231 Pa.Super. 327, 331 A.2d 856 (1974).

An intent to deliver may also be inferred from the totality of the circumstances. Commonwealth v. Gill, 490 Pa. 1, 6, 415 A.2d 2, 4 (1980); Commonwealth v. Bundridge, 303 Pa.Super. 267, 272, 449 A.2d 681, 684 (1982); Commonwealth v. Harmes, 255 Pa.Super. 147, 151, 386 A.2d 551, 552 (1978); Commonwealth v. Kishbach, 247 Pa.Super. 557, 559 n. 2, 373 A.2d 118, 119 n. 2 (1976); Commonwealth v. Cubler, 236 Pa.Super. 614, 619, 346 A.2d 814, 817 (1975). Appellant was in possession of an amount in excess of 19 pounds of marijuana, packaged in separate, one pound bags. This was more than three hundred times the 30 grams specified by statute to be considered a “small amount for personal use,” 35 P.S. § 780-113(a)(31), and was a quantity more consistent with trafficking in drugs than with personal use. The fact finder could permissibly infer an intent to deliver from these circumstances.

Appellant’s contention that the affidavit in support of the search warrant failed to show probable cause is also merit-less. Application for the warrant was made on January 27, 1981 by Corporal Barto, and the probable cause section of the affidavit contained the following statements:

“On 27 January 1981 a confidential informant related the following information to your affiant:
Between 23 January 1981 and 27 January 1981 the confidential informant # 1 was at residence of Ronald Gray, specifically described above. At the time the informant was present the informant personally saw approximately 20 pounds of marijuana. The informant further related that he had seen marijuana in the automobiles described above.
Your affiant believes the confidential informant to be reliable for the following reasons: Two other confidential informants gave confirming information. In addition Trp. Thomas R. Scales confirmed information.
On 16 January 1981 your affiant spoke with confidential informant # 2. At this time informant # 2 related that RONALD GRAY is one of the major drug distributors in Lycoming County. Informant # 2 is believed to be reliable because he has given information relating to Laughlin Jennings who is presently under criminal charges; Regina Webster and Curtis Missien who are presently under criminal charges; and David Fryday who is presently under criminal charges (the information relating to Fryday confirmed in a statement by Gina Brown who related that she purchased her drugs from Fryday). The informant # 2 stated that Fryday could be found in Wellsboro, Pa. as Fryday had left Williamsport. On 27 January 1981 Fryday was arrested in Wellsboro.
On 19 January 1981 District Attorney Kenneth D. Brown and Trp. John J. Monahan related the following to your affiant:
On 18 January 1981 Mr. Brown and Trp. Monahan spoke with confidential informant #3. At this time confidential informant # 3 related that RONALD GRAY is one of the largest drug dealers in Lycoming County. Informant # 3 related that he had some contact relative to the purchase of drugs with Gray.
On 27 January 1981 Trp. Thomas R. Scales related the following to your affiant:
During the fall of 1978 Trp. Scales had set up a transaction with Gray to purchase two (2) cases of morphine from RONALD GRAY. During the course of the transaction, which took place in a cabin off Leg. Rte. 41028, a phone call came stating that there were police in the area. Gray then refused to complete the transaction at that time. This information is contained in P.S.P. reports.
On 27 January 1981 when confidential informant # 1 related the information he was under oath.
On 27 January 1981 Trp. James Carey related the following information to your affiant:
On 27 January 1981 Trp. Carey in the presence of Ptl. Mark McCracken (South Williamsport Police) and confidential informant # 1 went to the residence of RONALD GRAY. At that time Trp. Carey located the above described home and the vehicles. The vehicles were present at the location described by the confidential informant.
On 27 January confidential informant # 1 further related that he had contacted Gray concerning the marihuana between 25 January 1981 and 27 January 1981. At this time the informant # 1 stated that Gray said he still had marihuana.”

“ ‘Probable cause to issue a search warrant has been defined as those facts reasonably necessary to show (1) that the items sought are connected with criminal activity, and (2) that the items will be found in the place to be searched.’ ” Commonwealth v. Kanouff, 315 Pa.Super. 392, 394-95, 462 A.2d 251, 252 (1983) quoting Commonwealth v. Council, 491 Pa. 434, 443, 421 A.2d 623, 627 (1980). Accord: Commonwealth v. Ryan, 300 Pa.Super. 156, 167, 446 A.2d 277, 283 (1982). Where the affiant relies on information from a confidential informant, “ ‘the magistrate must be informed of some of the underlying circumstances from which [the] informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed ... was credible or his information reliable.’ ” Commonwealth v. White, 311 Pa.Super. 146, 150, 457 A.2d 537, 539 (1983) quoting Aguilar v. Texas, 378 U.S. 108, 114-115, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). Accord: Commonwealth v. Davis, 466 Pa. 102, 110, 351 A.2d 642, 646 (1976); Commonwealth v. Prosdocimo, 308 Pa.Super. 187, 193, 454 A.2d 84, 87 (1982); Commonwealth v. Turner, 284 Pa.Super. 395, 398, 425 A.2d 1161, 1162 (1981). In determining the existence of probable cause, a magistrate is not required to find a prima facie showing of criminal activity but rather the probability of criminal activity. Commonwealth v. Tolbert, 492 Pa. 576, 580, 424 A.2d 1342, 1344 (1981); Commonwealth v. Ryan, supra 300. Pa.Super. at 166, 446 A.2d at 282; Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 454, 445 A.2d 1214, 1217 (1982). While the inquiry is restricted to the four corners of the affidavit, Commonwealth v. Stamps, 493 Pa. 530, 536, 427 A.2d 141, 143 (1981), the affidavit is to be interpreted in a commonsense and realistic fashion. Commonwealth v. Edwards, 493 Pa. 281, 290, 426 A.2d 550, 554 (1981); Commonwealth v. Ryan, supra 300 Pa.Super. at 167, 446 A.2d at 283.

The requirements that the magistrate be informed of the basis of the informant’s knowledge and also the basis for the affiant’s belief that the informant was credible or his information reliable are not separate and discreet inquiries. “[A]n informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report____ [H]owever, ... these elements should [not] be understood as entirely separate and independent requirements to be rigidly exacted in every case____ Rather, ... they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.” Illinois v. Gates, 462 U.S. 213, _, 103 S.Ct. 2317, 2327, 76 L.Ed.2d 527, 543 (1983) (footnote omitted). Thus, the issue of an informant’s credibility is not an independent inquiry unrelated to the issue of the source of the informant’s knowledge. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband ... will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.” Id. 103 S.Ct. at 2332 quoting from Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960) (emphasis supplied).

The affidavit in the instant case provided the magistrate with the basis of informant # l’s knowledge, i.e. personal observation between January 23 and January 27, 1981, of a large quantity of marijuana in the place to be searched and a conversation with the accused between January 25 and 27, 1981. The information regarding the two vehicles used by appellant was corroborated by investigating officers. Informants #2 and #3, one of whom had provided reliable information in the past leading to the arrest of three individuals, informed the investigative officers of appellant’s reputation as an active drug dealer, and Trooper Scales informed the affiant that he had negotiated a purchase of heroin from appellant two years earlier.

The four factors to be considered by a magistrate in determining the credibility of an unidentified informant and the reliability of his information were identified in Commonwealth v. Ambers, 225 Pa.Super. 381, 386, 310 A.2d 347, 350 (1973): “(1) Did the informant give prior reliable information? (2) Was the informant’s story corrob-. orated by another source? (3) Were the informant’s statements a declaration against interest? (4) Does the defendant’s reputation support the informant’s tip?” Accord: Commonwealth v. White, supra 311 Pa.Super. at 151, 457 A.2d at 539; Commonwealth v. Prosdocimo, supra 308 Pa.Super. at 198, 454 A.2d at 89; Commonwealth v. Mazzochetti, supra 299 Pa.Super. at 455, 445 A.2d at 1218. It is not necessary, however, that the affidavit satisfy the magistrate of all four of these criteria. Commonwealth v. White, supra 311 Pa.Super. at 151, 457 A.2d at 539; Commonwealth v. Prosdocimo, supra 308 Pa.Super. at 198, 454 A.2d at 89; Commonwealth v. Ambers, supra 225 Pa.Super. at 386, 310 A.2d at 350. The affidavit in the instant case provided evidence of the defendant’s reputation in support of the tip; and that portion of the informant’s narrative regarding the locations of the house and vehicles was corroborated by investigating officers. Under the “totality of the circumstances” test, it seems clear that the magistrate was warranted in finding a substantial basis for crediting the hearsay present in the affidavit and in concluding that there was a substantial probability that drugs were present in the house and vehicles described in the affidavit.

Appellant also contends that the Commonwealth failed to meet its burden of proof at the suppression hearing because it offered no evidence of probable cause other than the affidavit. This argument is not supported by the notes of testimony of the suppression hearing, is based upon a misconception of the law and was waived by appellant’s failure to raise it at the suppression hearing or to include it in post-verdict motions. See: Commonwealth v. Gravely, 486 Pa. 194, 198-199, 404 A.2d 1296, 1298 (1979); Commonwealth v. Gregory, 309 Pa.Super. 529, 530, 455 A.2d 1210, 1210 (1983); Commonwealth v. Seeley, 297 Pa.Super. 498, 500, 444 A.2d 142, 143 (1982).

At a preliminary hearing the Commonwealth is required to establish “a prima facie case by showing probable cause to believe that a crime has been committed and that the defendant is the offender.” Commonwealth v. Gordon, 254 Pa.Super. 267, 272, 385 A.2d 1013, 1015 (1978). Accord: Commonwealth v. Prado, 481 Pa. 485, 489, 393 A.2d 8, 10 (1978); Commonwealth v. Mullen, 460 Pa. 336, 341, 333 A.2d 755, 757 (1975); Commonwealth v. Beatty, 281 Pa.Super. 85, 91-92, 421 A.2d 1159, 1162 (1980); Commonwealth v. Lodise, 276 Pa.Super. 484, 489, 419 A.2d 561, 564 (1980). Moreover, “ '[i]f in fact it is determined at trial that the evidence of the Commonwealth is sufficient to be submitted to the jury, then any deficiency in the presentation before the district justice would have been harmless ____’” Commonwealth v. Rineer, 310 Pa.Super. 241, 244, 456 A.2d 591, 592 (1983) quoting Commonwealth v. Hess, 489 Pa. 580, 590, 414 A.2d 1048, 1048 (1980). Cf. Commonwealth v. Loar, 264 Pa.Super. 398, 399 A.2d 1110 (1979) (plurality opinion). Trial counsel was not ineffective for failing to argue in post-verdict motions that the trial court erroneously denied a pre-trial petition for habeas corpus because it imposed an improper burden of proof on the Commonwealth. There would have been no merit in such a contention.

The judgment of sentence is affirmed.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I concur in the result. In my view Illinois v. Gates should not be applied retroactively, and under the AguilarSpinelli standard which would then apply I would find the instant search warrant defective. However, since this Court has, in another case, spoken on the issue of Gates ’ retroactivity in the affirmative, I am constrained to follow precedent and concur in the result, rather than dissent. Also, rather than merely adopting the Gates standard, I would have preferred a careful consideration as to whether this Commonwealth chooses — as is its right — to adhere to the stricter standard that has heretofore been the law. However, by applying the Gates standard to cases before it, this Court has made that standard the operative law of this Commonwealth. Even if that action was not based upon a recognition of the choice which was available to us, the current legal standard in this Commonwealth is, nonetheless, Gates. Accordingly, I am again obliged to concur rather than dissent.

Retroactivity

The recent case of Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983) held that Gates is to be applied retroactively.

Appellee would contend, of course, that Gates was not the law at the time that the police sought the warrant from the magistrate and that, therefore, Gates is inapplicable and cannot now be applied retrospectively to validate a search warrant already found defective under the two-pronged test. This assertion of appellant [sic] overlooks the fact that an effect of the Gates decision was to enable the State of Illinois to proceed to trial against John Gates and to utilize in the presentation of the case of the prosecution the very evidence seized pursuant to the warrant of the magistrate but suppressed by the hearing judge.

Id., 318 Pa.Superior Ct. at 247-248, 464 A.2d at 1325.

This analysis itself overlooks the principle of jurisprudence that a case can itself be applied retroactively without its new rule of law being applied retroactively to other cases. Indeed, if this were not so, all cases would have prospective effect only.

The question then is whether Gates should be applied retroactively. The guidelines to be used in making this type of decision have been laid down in the United States Supreme Court decision of U.S. v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).

“Conversely where the Court has expressly declared a rule of criminal procedure to be 'a clear break with the past,’ it almost invariably has gone on to find such a newly minted principle nonretroactive.” Id. 457 U.S. at 549, 102 S.Ct. at 2587, 73 L.Ed.2d at 213. This Court has found that Gates “abandon(ed) the Aguilar-Spinelli test ...” Commonwealth v. Price, supra, 318 Pa.Superior Ct. at 246, 464 A.2d at 1324. I agree with this characterization. In substituting a “totality of the circumstances” test for the “two prongs” of Spinelli, Gates has undeniably wrought an important change in the law.

A further consideration is the “effect on the administration of justice of a retroactive application of the new rule.” U.S. v. Johnson, supra, 457 U.S. at 549, 102 S.Ct. at 2587, 73 L.Ed.2d at 214. Justice cannot be effectively administered if Gates is retroactively applied. A defendant, through his counsel, could rely upon an evaluation of a search warrant defective under Aguilar-Spinelli. This reliance could lead him to forego certain options available to him, such as a plea bargain, on the well-founded conclusion that the fruits of the search would be suppressed at trial or on appeal. Then, while his appeal is pending, a change in the law could transmute the defective search warrant into a valid one. The law should not work in such a capricious manner.

In this Commonwealth, at least, Gates should not be applied retroactively.

Application of Aguilar-Spinelli

The search warrant in question was unsupported by probable cause in relation to the first prong of Aguilar-Spinelli: underlying circumstances from which the issuing authority could conclude that the informant was reliable and credible. Aguilar v. Texas, 378 U.S. 108 at 114, 84 S.Ct. 1509 at 1514, 12 L.Ed.2d 723 at 728-29 (1964).

None of the four criteria used to evaluate the credibility or ■ reliability of an informant were present. See U.S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). Specifically, the informant’s story was not corroborated by other sources, nor was there any properly supported information as to informant’s reputation.

Option for Higher Standard

States have the option to accord the individual greater protection than is afforded by the interpretations of the United States Constitution of the U.S. Supreme Court or the applicable Circuit Court of Appeals. This can be done on the basis of our interpretation of the federal or of our state constitution. This Commonwealth’s appellate courts have exercised this option in the past. I do not express an opinion as to whether this Commonwealth should choose to adhere to the Aguilar-Spinelli standard rather than adopting Gates for application in this state. I do, however, think that, whatever the final result, the people of this Commonwealth would have been better served by a consideration of this option.

I concur in part and concur in the result.

      . 35 P.S. § 780-113(a)(30).

      . Since the search warrant in question does, I conclude, meet the Gates standard, I concur in that portion of the majority opinion which also reaches that conclusion.

        . Supporting these conclusions by reference to the record would bé a fruitless exercise, since it is acknowledged that Gates is the current standard and the instant warrant meets that standard.

      . It is only the converse which is prohibited. That is, the states cannot restrict the individual’s rights further than those interpretations allow.


author: SPAETH, Judge:

text:
    469 A.2d 176
    Jerry M. BEARY, Appellant v. PENNSYLVANIA ELECTRIC COMPANY, a Corporation and Glass Containers, a Corporation v. EDWARDS TANK ERECTION, INC.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1983.
    Filed Nov. 18, 1983.

      John R. Gavin, Oil City, for appellant.
    Eugene F. Scanlon, Jr., Pittsburgh, for PA Electric, appellee.
    Chester S. Fossee, Pittsburgh, for Glass, appellee.
    Henry R. Pope, III, Clarion, for Edwards, appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   SPAETH, Judge:

This is an appeal from a judgment in a personal injury action. Appellant, plaintiff below, argues that the trial court erred in ordering a directed verdict in favor of appellee, Glass Containers Corporation. We agree and therefore reverse and remand for a new trial.

On September 13, 1978, appellant, as an employee of Edwards Tank Erection, Inc., was helping install a steel storage tank at appellee’s plant in Knox, Pennsylvania. The moving and assembly of the tank’s component steel plates required the use of a mobile crane, which was supplied by Edwards Tank Erection. Appellant was directed to help the crane operator move an electric “panel box” to a nearby site, where the steel plates would be welded together to form the tank. Holding the panel box steady by means of a coil of wire attached to the panel box, N.T. 173-174, appellant walked backwards, ahead of the moving crane. After he and the crane had proceeded in this manner for about 100 feet, the crane’s load line touched some electric power lines, causing appellant to sustain serious injuries. N.T. 180-181.

Appellant brought this action in trespass against Pennsylvania Electric Company and appellee, and appellee joined Edwards Tank Erection as an additional defendant. After appellant completed his presentation of evidence, the trial court granted Pennsylvania Electric’s motion for a compulsory nonsuit but denied appellee’s motion for a compulsory nonsuit, finding “some evidence of negligence on the part of [appellee].” N.T. 355, 363. Appellant does not challenge the correctness of the court’s ruling as to Pennsylvania Electric. After all of the evidence had been presented, the court granted appellee’s motion for a directed verdict, with the following order:

And Now, October 23, 1981, we the Jurors empanelled in the above case find that the percentage of causal negligence attributable to the Plaintiff exceeds the causal negligence attributable to the Defendant Glass Containers Corporation.
N.T. 589.

-1-

Appellant first argues that since there was some evidence of appellee’s negligence the trial court should have allowed the jury to consider that evidence instead of directing a verdict in appellee’s favor.

While a trial court should not submit to a jury for its determination an issue on which there is no evidence, Downing v. Shaffer, 246 Pa.Super. 512, 371 A.2d 953 (1977), the court should direct a verdict “only in a case where the facts are all clear, and there is no room for doubt----” Stephens v. Carrara, 265 Pa.Super. 102, 105, 401 A.2d 821, 823 (1979); Cox v. Equitable Gas Co., 227 Pa.Super. 153, 324 A.2d 516 (1974). In deciding whether a case is “clear,” the court should consider the evidence in the light most favorable to the party opposing the motion, accepting as true all of the evidence that supports that party’s contention and rejecting all adverse evidence. Litman v. Peoples Natural Gas Company, 303 Pa.Super. 345, 347, 449 A.2d 720, 721 (1982). Also, the court should give the party opposing the motion the benefit of all reasonable inferences arising from the evidence and favorable to that party. Evans v. Goldfine Truck Rental Service, 241 Pa.Super. 329, 361 A.2d 643 (1976).

When regarded in this manner, the evidence discloses the following. Appellee’s employees were aware of the electric power lines on their plant’s property. N.T. 36. Although warning signs referring to “danger, high voltage” were used at the plant, there were none at the location of the electric power lines involved in this accident. Id. 42-43, 72, 108. Appellee’s project engineer knew that the crane would be moving the panel box along a road that went under the power lines, id. 80, 85, but he did not warn Edwards Tank Erection’s employees about the power lines, id. 81. The project engineer also knew of the availability of protective devices to cover the power lines, id 89-90, and appellee’s chief electrician knew that protective devices had been used on the power lines, id. 122-125. An expert witness, a professor of Industrial Engineering, testified that appellee did not have a “sound safety program,” id. 309; that operation of a mobile crane within the general vicinity of a power line is a serious hazard, id. 315, 332-333; and that appellee should have “point[ed] out the high voltage line[’s] 34,500 volts as a very serious hazard and ... developed] countermeasures with the contractor,” id. 350.

The trial court states in its opinion that “there is no evidence, direct or circumstantial, by which the jury could conclude that [appellant’s] injuries were caused by [appellee’s] negligence.” Slip op. at 2. We are unable to join in this conclusion.

Section 343 of the Restatement (Second) of Torts (1965) states:

§ 343. Dangerous Conditions Known to or Discoverable by Possessor
A Possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.

From the summary of the evidence just concluded, it is apparent that the jury could have found that these conditions were satisfied. The question is not whether the jury would have so found, for “where there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof.” Smith v. Port Authority Transit, 257 Pa.Super. 66, 71, 390 A.2d 249, 251 (1978), quoting Heffernan v. Rosser, 419 Pa. 550, 554-555, 215 A.2d 655, 657 (1966). See also Yandrich v. Radic, 291 Pa.Super. 75, 435 A.2d 226 (1981).

It should be noted that clause (b) of Section 343 presents an alternative: “should expect that they will not discover or realize the danger, or will fail to protect themselves” (emphasis added). We may assume for the sake of discussion that the jury would have found that appellant and the crane operator must have seen the electric power lines. It does not follow, however, that the jury could not have found that clause (b) was satisfied.

Under the first alternative provided in clause (b), the jury could have found that although appellant and the crane operator had seen the lines, they had not — unlike appellee— discovered, and therefore did not realize, their danger. Thus in Stimmel v. Kerr, 394 Pa. 609, 148 A.2d 232 (1959), two workers were electrocuted when an A-frame by means of which they were unloading steel trusses touched overhanging power lines. The Supreme Court stated:

“The presence of the power lines in and of itself did not indicate obvious danger. Plaintiff was not bound to know the degree of danger involved. ‘Wires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The difference in this respect is not apparent to ordinary observation, and the public, therefore, while presumed to know that danger may be present, are not bound to know its degree in any particular case.’ ”
Id., 394 Pa. at 612, 148 A.2d at 233, quoting Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 8, 130 A.2d 123, 128 (1957) (citations omitted).

Under the second alternative provided in clause (b), the jury could have found that even if appellant and the crane operator did realize the danger of the power lines, still, appellee should have expected that because of their preoccupation with moving the panel box, they would “fail to protect themselves against it.” In this regard, Section 343A. of the Restatement states in part:

§ 343A. Known or Obvious Dangers
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. (Emphasis added)

And Comment f to Section 343A states in part:

f. There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the irivitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it____ (Emphasis added).

In Stimmel, the Supreme Court cited Section 343, and in McKenzie v. Cost Bros. Inc., 487 Pa. 303, 309-10, 409 A.2d 362, 364-365 (1979), the Court expressly adopted the section. In Jones v. Three Rivers Management Corp., 483 Pa. 75, 88, 394 A.2d 546, 552 (1978), the Court quoted Section 343A and Comment f to that section, holding, “Thus, an invitee in certain circumstances must be protected even from obvious dangers [citations omitted].” The duty of a landowner to business visitors is the highest duty owed any entrant upon land. Treadway v. Evert Motor Co., 292 Pa.Super. 41, 436 A.2d 994 (1982); Crotty v. Reading Industries, Inc., 237 Pa.Super. 1, 345 A.2d 259 (1975). The standard of conduct required by this duty is in proportion to the apparent risk. “If the danger becomes greater, the actor is required to exercise caution commensurate with it.” W. Prosser, Handbook of the Law of Torts 180 (4th ed. 1971). Whether appellee exercised such caution was a question for the jury to decide.

-2-

Although, as we have noted, the trial court in its opinion explains its order directing a verdict by stating that there was no evidence of appellee’s negligence, in the order itself, as we have also noted, the court only stated that appellant’s negligence was greater than appellee’s. N.T. 589. (“percentage of causal negligence attributable to the Plaintiff exceeds the causal negligence attributable to the Defendant Glass Containers Corporation”). This implies that the court found some negligence on the part of appellee, albeit less than on the part of appellant. Such an order is governed by 42 Pa.C.S.A. § 7102, which provides:

(a) General rule. — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

In Peair v. Home Association of Enola Legion No. 751, 287 Pa.Super. 400, 430 A.2d 665 (1981), this court noted its reluctance to approve a directed verdict in a comparative negligence context:

“Because of the very nature of the comparative negligence doctrine, situations in which directed verdicts will be appropriate will occur with even less frequency, particularly where the plaintiff’s own negligence is in issue.” Id., 287 Pa.Superior Ct. at 407, 430 A.2d at 669, quoting Petroleum Carrier Corp. v. Gates, 330 So.2d 751, 752 (Fla.D.C.App.1976).

We also said in Peair that

the totality of causal negligence is a matter properly determined by the jury, and ... only in rare cases should a court hold as a matter of law that the negligence of one party is equal to or greater than that of the other. Id., citing Cirillo v. Milwaukee, 34 Wis.2d 705, 150 N.W.2d 460 (1967).

We have no difficulty in concluding that the present case is not such a rare case.

-3-

Since another trial will be required in this case, we think we should also address appellant’s remaining argument, which is that the trial court erred in admitting into evidence the following provision contained in appellee’s contract with Edward Tank Erection:

SAFETY. Contractor shall supply and use all safety equipment necessary to protect workmen on the job site in accordance with all applicable governmental safety regulations and insurance requirements. All work performed under this contract shall comply with all applicable governmental building and safety codes, and the requirements of the Factory Mutual System. All equipment supplied by Contractor shall comply with the Industrial Safety Code of the state in which the equipment is installed.

Appellant argues that by admitting this into evidence, the court permitted appellee to raise the issue of Edwards Tank Erection’s liability.

We agree with appellant that Edwards Tank Erection’s liability was not an issue for the jury, for Section 303(b) of the Pennsylvania Workmen’s Compensation Act, 77 P.S. §§ 1 et seq., bars joinder of an employer as an additional defendant on the issue of the employer’s liability. But it does not bar joinder on the issue of the employer’s contractual obligation to pay indemnity, Gallagher v. Transport Pool Incorporated, 281 Pa.Super. 188, 421 A.2d 1212 (1980); Szemanski v. Vulcan Materials Co., 272 Pa. Super. 240, 415 A.2d 92 (1979).

We note, however, that although the trial court granted a motion to bifurcate the liability and indemnification issues, N.T. at 1-10, it nevertheless allowed evidence of the contract between appellee and Edwards Tank Erection to be introduced during trial of the liability issue. Since appellee’s alleged right to indemnification would arise only if it were found liable to appellant, F.J. Schindler Equipment Co. v. Raymond Co., 274 Pa.Super. 530, 418 A.2d 533 (1980), and since evidence of the contractual safety provision was only relevant to the indemnification issue, it would have been better practice to defer evidence of the safety provision until the liability issue had been resolved. See also Goodrich-Amram 2d § 2231(d):4 at 522 (party’s right to indemnity does not arise until judgment is entered against him); Travelers Ins. Co. v. Bank Bldg. & Equipment Corp. of America, 307 F.Supp. 510 (E.D.Pa.1969) (on claim for indemnity it is necessary that indemnitee has been found liable).

Judgment reversed and case remanded for new trial consistent with this opinion.


author: CAVANAUGH, Judge:

text:
    469 A.2d 181
    COMMONWEALTH of Pennsylvania v. Charles Russell KASKO a/k/a Charles Day, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1983.
    Filed Nov. 18, 1983.

      Mark A. Hutchinson, Norristown, for appellant.
    J. William Ditter, III, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and HOFFMAN, JJ.
   CAVANAUGH, Judge:

Appellant was charged in two criminal cases and in each he was accused of involuntary deviate sexual intercourse, recklessly endangering another person, indecent exposure, endangering welfare of children, indecent assault, corruption of minors, simple assault, criminal solicitation, and criminal attempt. In one case, he was accused of these offenses with respect to the six-year-old niece of his girlfriend. In the other case he was accused of the same offenses with respect to his own four-year-old niece and five-year-old nephew, the children of his two step-sisters. The two cases were consolidated for trial, and appellant’s motion to sever was denied.

At the conclusion of the Commonwealth’s case, appellant’s demurrer to the charges of criminal attempt, reckless: ly endangering another person and endangering welfare of children was sustained with respect to both consolidated cases. At the conclusion of the trial, the jury returned a verdict of not guilty with respect to both counts of involuntary deviate sexual intercourse, one count of indecent exposure, one count of indecent assault, both counts of simple assault and one count of criminal solicitation. However, the jury returned a verdict of guilty of the misdemeanor offenses of criminal solicitation, indecent assault and corruption of minors in one case, and indecent exposure and corruption of minors in the other. On these offenses the maximum terms of imprisonment were imposed and made consecutive to each other, resulting in a sentence of seven to fourteen years imprisonment. This appeal followed.

Appellant contends that the lower court erred in consolidating these two cases in one trial, and in admitting certain hearsay evidence. We agree with appellant, and reverse and remand for a new trial.

The criminal activities encompassed by the first of the two consolidated cases were alleged to have occurred “on or about February or March of 1980.” In this case, appellant was charged with sexually molesting his girlfriend’s six-year-old niece while the girlfriend baby-sat the child at an apartment shared by the girlfriend and her sister, the child’s mother. The specific acts alleged involved the touching of appellant’s exposed genitals to the child’s anal area, and anal intercourse. These acts were alleged to have occurred in the presence of appellant’s girlfriend.

The second of the two consolidated cases alleged similar misconduct with the four-year-old daughter of appellant’s step-sister, as well as the corruption of this child and the five-year-old son of appellant’s other step-sister by teaching or encouraging the two to have indecent contact with each other. These offenses allegedly occurred sometime between December 15, 1980 and January 26, 1981, while the children were visiting their grandmother at her apartment, which was shared by appellant. These incidents were not alleged to have been committed in the presence of appellant’s girlfriend or any other adult.

Appellant flatly denied the occurrence of any of the sexual misconduct charged in either case, and defended on that basis.

Appellant first contends that the lower court should have granted his motion to sever the trial of these two cases. Our review in this matter is limited to whether the trial court abused its discretion in allowing the consolidated trial of the two cases. Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975).

In making our determination, we first look to whether evidence of the commission of one offense would have been admissible in the separate trial of the other offense. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981). In Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973), our Supreme Court summarized the law controlling the admission of such evidence as follows:

It is black letter law that evidence of one crime is inadmissible against a defendant being tried for another crime because the fact of the commission of one offense is not proof of the commission of another. See Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971). However, there sometimes exist special circumstances which operate as exceptions to the general rule and bring the case within the equally well established principle that evidence of other crimes is admissible when it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial — in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. See Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955).

Commonwealth v. Peterson, supra, 453 Pa. at 197-8, 307 A.2d at 269-70.

Turning to the instant appeal, we first find no indication or suggestion that the occurrence of the first crime would provide a motive for appellant to commit the other, or that one crime was motivated by peculiar circumstances present in both. Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976); Commonwealth v. Hude, 256 Pa.Super. 439, 390 A.2d 183 (1978). Compare Commonwealth v. Brown, 482 Pa. 130, 393 A.2d 414 (1978).

The second and third exceptions allow evidence of prior crimes tending to prove intent, or absence of mistake or accident. However, in this case, appellant did not claim that his conduct was innocent or accidental, but rather flatly denied that the acts ever occurred. Therefore, since appellant’s mental state was not at issue, the prior crimes would not have been admissible to prove it. Commonwealth v. Bond, 261 Pa.Super. 311, 396 A.2d 414 (1978).

The fourth exception requires that the other crime sought to be introduced, evidence a common scheme, plan or design. In order to fit within this exception,

the Commonwealth must show more than that the other crimes are of the same class as the one for which the defendant is being tried. Rather, there must be such a high correlation in the details of the crimes that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the others.

Commonwealth v. Bastone, 262 Pa.Super. 590, 595, 396 A.2d 1327, 1329 (1979). Moreover, both crimes must be so nearly identical in their unusual or distinctive aspects as to bear the “signature” or be the “handiwork” of the same person. Commonwealth v. Morris, supra, 493 Pa. at 176, 425 A.2d at 720 (1981); McCormick on Evidence § 190 at 449 (2d ed. 1972).

The allegations in the two cases against appellant have certain similarities.' They both involve children of a similar age group, having a family or personal link to the appellant. In both cases, appellant was accused of roughly the same type of misconduct. On the other hand, the two cases were separated by a substantial period of time and involved different victims. They occurred under dissimilar circumstances in that one allegedly occurred in the presence of appellant’s girlfriend, later his wife, while the other did not. One case involved both a young boy and a young girl, whereas the other only involved a young girl. Finally, the misconduct alleged in this case is, sadly, not as rare as it should be, but is rather a common form of child abuse. Under these circumstances, we cannot agree that the two cases reach that high degree of correlation in detail required to show a common scheme, plan or design. Commonwealth v. Boulden, 179 Pa.Super. 328, 116 A.2d 867 (1955); Commonwealth v. Green, 290 Pa.Super. 76, 434 A.2d 137 (1981).

The final exception to the general rule is evidence of prior crimes tending to establish the identity of the perpetrator. Like the second and third exceptions discussed above, this exception is inapplicable because the perpetrator’s identity was not at issue. Commonwealth v. Green, supra; Commonwealth v. Bond, supra.

We must conclude that neither of the two cases consolidated below fall within any of the five exceptions, and therefore neither would have been admissible in the separate trial of the other. We are, therefore, constrained to conclude that the lower court abused its discretion in allowing the consolidated trial of these two cases.

Since, our resolution of appellant’s first issue requires a new trial, we will also address his second contention, that the trial court erred in admitting certain hearsay evidence. The facts relative to this issue are as follows.

At trial, the Commonwealth established its case not only through the testimony of the children but also, in substantial part, through the testimony of the mothers of two of the children. In addition to testifying as to the physical appearance of the children, one of the mothers testified that on a particular day she discovered two of the children, the four-year-old girl and five-year-old boy, under covers, on a sofa. When she pulled the covers down, she saw that the little girl’s nightgown had been raised above her waist, and her underwear pulled down, exposing her genitals. The little boy had also pulled his pants down, exposing his genitals.

Assuming that someone must have taught the children this behavior, and in an effort to find out who that was, the mother who caught the children, questioned them for fifteen minutes or more but failed to identify the culprit. At this point the mother of the other child arrived and together they elicited certain statements from the children. The lower court permitted both mothers to testify that the children said that they had been taught this behavior by appellant some time before. In admitting this hearsay, the lower court reasoned that the emotional and shocking experience of being caught in the act of doing something wrong by their mothers was sufficiently upsetting to render their subsequent statements admissible under the res gestae or spontaneous utterance exception to the hearsay rule. In this, the lower court was in error.

First, “[wjhile the law fixes no definite time within which statements must be made to be received as part of the res gestae, there must be no break in the continuity of the litigated acts which would afford time for reflection.” Wilf v. Philadelphia Modeling and Charm School, Inc., 205 Pa.Super. 196, 205, 208 A.2d 294, 299 (1965). Here, the crucial statements came not only after fifteen minutes of questioning by one parent had failed to produce the desired response, but after two undoubtedly upset parents together interrogated the children. While the fifteen minutes itself afforded time for reflection, the parental interrogation demanded that reflection.

Further, this exception to the hearsay rule also requires that the spontaneous utterance relate to the exciting event. 6 Wigmore, Evidence § 1754 (Chadbourne rev. 1976). Here, the act in which they were caught was not the litigated fact to which the children’s statements related. Rather, the children’s statements related to the appellant’s activities which would have. occurred days, weeks or even months before. Clearly, this hearsay did not fall within the res gestae or spontaneous utterance exception to the hearsay rule and was improperly admitted below.

In addition to the hearsay statements discussed above, the mother of the child who was the alleged victim in the other case was permitted to testify that her child had told her that appellant had had certain indecent contact with the child. Over appellant’s objection, these statements were also admitted as being within the res gestae exception to the hearsay rule. However, in this instance there was no foundation whatsoever laid to establish the time lapse between the exciting event and the hearsay statement. Thus for the reasons set forth above, the trial court also erred in allowing this statement.

Reversed and remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . 18 Pa.C.S. § 3123.

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 3127.

      . 18 Pa.C.S. § 4304.

      . 18 Pa.C.S. § 3126.

      . 18 Pa.C.S. § 6301.

      . 18 Pa.C.S. § 2701.

      . 18 Pa.C.S. § 902.

      . 18 Pa.C.S. § 901.

      . Although the lower court indicates that this child was seven years old, the testimony suggests that she was six years old at the time in question. Compare Slip op. at 6, with N.T. 6/30/81, 126.

      . The significance of these hearsay statements cannot be minimized. At trial, the mothers testified that the children had told them that appellant had taught them the indecent "games.” However, the actual trial testimony of the five-year-old boy lacked any probative value. In fact, if his testimony indicated anything, it was that he had picked up the sexual behavior from another youngster and not appellant. See N.T. 6/30/83, 44.

      . We do not discuss other issues raised by appellant since we find them either adequately and completely addressed in the lower court opinion or unnecessary in view of our disposition.