author: POPOVICH, Judge:

text:
    613 A.2d 1
    COMMONWEALTH of Pennsylvania, Appellant, v. Vincent LAGAMBA, Appellee.
    Superior Court of Pennsylvania.
    Argued May 28, 1992.
    Filed July 30, 1992.
    Petition for Allowance of Appeal Denied Dec. 1, 1992.

      Louis G. Stesis, Asst. Dist. Atty., Media, for Com., appellant.
    Patrick J. Connors, Media, for appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This matter is on appeal by the Commonwealth from an order granting a motion to suppress. We reverse.

As stated in Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137, 138-139 (1983):

The well established judicial principle is that in reviewing a suppression court’s ruling the appellate court is bound by factual findings supported by the record. [A]nd, [it] may not substitute [its] own findings for those of the suppression court. This principle of deference to trial courts has one important caveat however, appellate courts are not bound by findings wholly lacking in evidence.
[W]here the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant’s witnesses and so much of the evidence of the prosecution as read in the context of the record as a whole remains uncontradicted. [Citations omitted]

Viewed in light of Hamlin, and inasmuch as the defense presented no witnesses, the record indicates that at 12:15 a.m. on the 21st day of October, 1991, Officers Stufflet and Soule, patrolmen for the Nether Providence Township Police Department, were on “a car stop” near the intersection of Providence and Possum Hollow Roads.

It appears that Officer Soule had stopped a Maryland motorist in the southbound lane of Providence Road for driving with inoperable lights, and he ordered a tow truck to remove the vehicle from the site. Because southbound traffic would have to traverse the northbound lane to circumvent the congestion created on the two-lane highway by the two police cruisers, tow truck and motorist’s automobile, Officer Stufflet began to direct traffic in the northbound lane of travel with the use of a hand-held flashlight. Both of the officers’ vehicles were situated in the southbound lane of travel with the lights and flashers activated to alert motorists of their presence.

While attempting to stop northbound traffic, Officer Stufflet observed a vehicle approaching at a speed of 25-30 m.p.h.— the posted speed was 35 m.p.h. At a distance of 25-30 feet, the officer attempted to flag-down the driver by shining his flashlight on the roadway and across the windshield of the vehicle “at least 10, 12 times.” The vehicle failed to stop until it was 15 feet past Officer Stufflet. To avoid being struck, the officer jumped onto the shoulder of the road.

During this time, Officer Soule was concentrating on writing tickets for the Maryland vehicle he had stopped in the southbound lane of travel. Nonetheless, “his attention was drawn” to Officer Stufflet (“just for a brief moment”) as he (Stufflet) was “forced to get out of the way” of an oncoming motorist. At this point, Officer Soule exited his vehicle to investigate who the operator was and “what [the] problem was, why he hadn’t stopped.”

As Officer Soule asked for the driver’s license and registration card, he detected a “strong odor of alcoholic beverage on or about [the appellee’s] person.” As a result, the appellee was asked to exit the vehicle and two field sobriety tests were conducted in which he “had difficulty performing”. Thereafter, he was arrested and charged with driving while under the influence of alcohol or a controlled substance. 75 Pa.C.S.A. § 3731(a).

The appellee’s motion to suppress was granted on the ground that the police’s “stop” was illegal as lacking articulable facts giving rise to a reasonable suspicion that criminal activity was afoot. Because this was contrary to the laws of the Commonwealth, the court below suppressed any evidence seized as a result of the stop. This appeal followed.

It is the position of the Commonwealth that the police did not “stop” the appellee; their interaction was a mere “encounter” authorized under the law and not “unreasonable” under the Fourth Amendment. In contrast, the court below and LaGamba are of the mind that the police did conduct a “stop” of the appellee in violation of the federal and state constitutions such that any evidence seized as a result thereof was illegal and justified the motion to suppress. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

It is well settled in this jurisdiction that:

... before a police officer may stop a single vehicle to determine whether or not the vehicle is being operated in compliance with the Motor Vehicle Code, he must have probable cause based on specific facts which indicate to him either the vehicle or the driver are in violation of the code.

Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875, 879 (1973), citing Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Accord Commonwealth v. Janiak, 368 Pa.Super. 626, 534 A.2d 833, 834 (1987).

As is evident from the language in Swanger, the officer’s actions must be premised on specific facts reflective of a probable cause to believe that a violation of the Motor Vehicle Code has occurred. The suppression court, on this aspect, ruled that “Officer Soule emerged from his vehicle without witnessing the alleged incident and without any communication from Officer Stufflet.” Opinion 11/7/91 at 4. This statement appears to be buttressed by the court’s “Findings of Fact” at Points 9 & 20, which read, respectively:

Officer Soule was in his patrol car issuing a citation and did not witness the incident----
Officer Soule later admitted he did not see any violation of the Motor Vehicle Code by this [appellee].

These findings of fact are the underpinnings for the court’s “Conclusions of Law” that the appellee’s “motor vehicle stop [was] devoid of any reasonable suspicion of criminal activity ... [, and, therefore, a]ny subsequent evidence that flowed from the illegal stop was properly suppressed.” Id. at 8.

However, we are “not bound by findings wholly lacking in evidence.” Hamlin, supra, 503 Pa. at 214, 469 A.2d at 139, citing Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977). Nor are we bound by the suppression court’s conclusions of law drawn therefrom. Janiak, supra, 368 Pa.Super. at 628, 534 A.2d at 834, citing Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986); Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

Instantly, our examination of the suppression transcript reveals that Officer Soule, contrary to the suppression court’s findings of fact, did witness Officer Stufflet engaging in evasive tactics to avoid the appellee’s oncoming vehicle prior to approaching LaGamba to inquire who he was and why he did not stop. To-wit, the relevant portions of the transcript provide:

BY MR. GALLANTINO [ATTORNEY FOR COMMONWEALTH]:
Q. Could you see what Officer Stufflet was doing to stop th[e appellee’s] vehicle?
[OFFICER SOULE:]
A. I just glanced up. He was waving his flashlight attempting to stop the vehicle.
Q. For how long did you see that vehicle?
A. Just for a brief minute.
******
Q. And then what did you do after the vehicle stopped?
A. I got out of my patrol vehicle and immediately went to the operator’s side of the vehicle that had almost struck Officer Stufflet.
Q. What was your purpose for getting out of your vehicle and approaching the vehicle that had stopped?
A. I wanted to find out who the operator was and what the problem was.

Suppression Hearing Transcript 9/4/91 at 31-33 (Emphasis added). On cross-examination, the discourse between Officer Soule and counsel for the appellee reads in relevant part as follows:

BY MR. GROOVER [COUNSEL FOR APPELLEE]:
Q. All right. Okay, so [Officer Stufflet] would be approximately in front of your vehicle?
A. Yes, that’s correct. * * * I was able to see him, yes. * * * I just glanced up. I saw the vehicle coming. Officer Stufflet may have yelled something. I don’t know what brought my attention to it but my attention was drawn to Officer Stufflet.
Q. So you didn’t see [the appellee’s vehicle] proceeding down the road, did you?
A. No.
Q. You weren’t able to observe [the appellee] prior to the time he got to this scene [ — supposedly a few feet from where Officer Stufflet was standing in the southbound lane of Providence Road — ] that he was doing anything unlawful?
A. No, sir.[]
* * * * * *
BY MR. GROOVER:
Q. Now you say Officer Stufflet got out of the way. What did he do to get out of the way, sir?
A. He was forced to move quickly to the side of the road.
Q. What — okay. Now he’s forced to move quickly. Did you see him make that movement?
A. Yes, just out of the comer of my eye but I did observe him make that movement.
Q. Okay. How far was the Lagamba vehicle away from him when he made that movement?
A. I would say maybe 25 to 30 feet, sir.
* * * * * . *
Q. Could you indicate to His Honor when you looked up where was the Lagamba vehicle when you first saw it?
A. As I said it was approximately 25 to 30 feet from Officer Stufflet.
>}! * * * * *
Q. That’s when you first saw him?
A. That is correct.
* * * * * *
Q. You have a police officer who’s looking southbound in the middle of the road and you have a vehicle doing 25 to 30 miles an hour and how far was the Lagamba vehicle from [Officer Stufflet] when he jumped out of the way?
A. 25 to 30 — just a few feet, just a few feet.
Q. Oh, he waited until the Lagamba vehicle was two or three feet away?
A. I guess he thought it was going to stop before it hit him. It wasn’t going that fast. He was trying to stop the vehicle.
* * * * * *
Q. What did you do after the Lagamba vehicle stopped?
A. I got out of my patrol vehicle and went over to the Lagamba vehicle.
Q. All right. Did you say anything to Mr. Lagamba?
A. Yes.
Q. What did you say to him, sir?
A. I asked him what the problem was, why he hadn’t stopped.

Id. at 39-45 (Emphasis added). Accord “Affidavit Of Probable Cause” to Criminal Complaint: “The operator did not stop immediately and Officer Stufflet was forced to jump out of the way ... Officer Douglas B. Soule who was in a patrol vehicle on the southbound side of the road did witness this incident ....” (Emphasis added)

Accordingly, in the absence of any factual basis to buttress the claimed illegal “stop” of the appellee, the conclusion of the court below to suppress evidence of the appellee’s intoxicated condition is flawed as well.

As was stated by this Court in Commonwealth v. Ferraro, 237 Pa.Super. 268, 352 A.2d 548, 550 (1975):

It is well settled that: “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.” Indeed, it is quite clear that a police officer is justified in making a reasonable investigatory stop of a suspicious individual “in order to determine his identity or to maintain the status quo temporarily while obtaining more information ...” A police officer’s authority to “stop and frisk” a citizen is predicated upon his observance of “unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person(s) with whom he is dealing may be armed and dangerous ...” Furthermore, in order to justify a “stop and frisk” the police officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts reasonably warranted the intrusion. “Thus, it is also clear that an investigative stop of a moving vehicle to be valid must be based upon objective facts creating a reasonable suspicion that the detained motorist is presently involved in criminal activity.” [Citations omitted; emphasis added]

More to the point, as remarked by our Supreme Court in Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414, 416-417 (1975):

If the alleged basis of a vehicular stop is to permit a determination whether there has been compliance with the Motor Vehicle Code of this Commonwealth, it is encumbent upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code. [Citations omitted]

Under the facts of the instant case, the record evidence suggests a basis for concluding that the vehicle’s occupant was in violation of the Motor Vehicle Code. For instance, during the period in which the vehicle and its occupant were being observed by Officer Soule, one traffic law appeared to be violated:

§ 3102. Obedience to authorized persons directing traffic
No person shall willfully fail or refuse to comply with any lawful order or direction of any uniformed police officer, sheriff or constable or any appropriately attired person, including an agent or employee of the funeral director during a funeral, authorized to direct, control or regulate traffic.

Amended August 5, 1991, P.L. 238, No. 26, § 11, 75 Pa.C.S.A. § 3102 (Supp.1992).

The officer testified unequivocally that the “purpose” for exiting his vehicle and approaching the appellee was “to find out who the operator was and what the problem was * * * why he hadn’t stopped.” Suppression Hearing Transcript 9/4/91 at 33 & 45 (Emphasis added). The intention of the officer becomes more manifest with the following day’s issuance of a criminal complaint charging the appellee with, inter alia, violating Section 3102. Cf. Commonwealth v. Orwig, 248 Pa.Super. 284, 375 A.2d 99 (1977); Commonwealth v. Ferraro, 237 Pa.Super. 268, 352 A.2d 548 (1975).

Thus, it was established that Officer Soule knew of facts justifying his continuing investigation on the basis of a possible violation of the Motor Vehicle Code. Contrast Commonwealth v. Smith, 225 Pa.Super. 509, 311 A.2d 716, 718 (1973).

We hold, therefore, that evidence which was later obtained (of intoxication) was not the “fruit” of an illegal search and seizure of the appellee. Wong Sun, supra. It was, consequently, improper to suppress such evidence.

To elucidate, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police officer may stop a person if he observes specific instances of unusual and suspicious conduct on the part of the person that reasonably leads him to conclude that criminal activity is afoot. See Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276, 279 (1969). In this case, the officer observed the appellee almost hit Officer Stufflet, despite the use of a hand-held flashlight to control traffic in the southbound lane of Providence Road. Such conduct is proscribed by 75 Pa.C.S.A. § 3102.

When the officer asked to see the appellee’s driver’s license and registration card, he “observed a strong odor of alcoholic beverage on or about Mr. Lagamba’s person.” Suppression Hearing Transcript 9/4/91 at 45. “These facts support a finding that the [police’s] decision to ... [perform a field sobriety test was] a product of the lawful Terry stop---- The test was conducted to obtain information as to whether appellee] was intoxicated.” Commonwealth v. Kloch, 230 Pa.Super. 563, 327 A.2d 375, 382 (1974).

Accordingly, premised on the discussion herein, we hold that the suppression court erred in granting the appellee’s motion to suppress.

Order reversed; jurisdiction relinquished.

      . As a condition to securing a review of the order granting the motion to suppress, the Commonwealth has certified that the grant of the suppression motion will substantially handicap or terminate the prosecution of this matter. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

      . This information is recounted in the "Affidavit of Probable Cause” section of the criminal complaint executed by the complainant, Officer Soule.

      . The appellee was also charged with reckless driving and failure to obey an authorized person directing traffic. 75 Pa.C.S.A. §§ 3714, 3102. These offenses were dismissed by the District Justice.

      . See note 8, infra, and accompanying text.

      . This response does not undermine the fact that Officer Soule did witness Officer Stufflet engage in evasive action when the appellee was within 2 to 3 feet of his person to avoid impact. See Suppression Hearing Transcript 9/4/91 at 39-45.

      . It is only the probability and not a prima facie showing that criminal activity is afoot which is the standard against which a police officer’s intrusive conduct is to be judged. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Commonwealth v. Marino, 435 Pa. 245, 255 A.2d 911, 916 (1969).

      . We deem the fact that this charge was dismissed at the District Justice level to be of no moment since we are concerned with the objective facts confronting the officer, and his statements in regard thereto, as the linchpin in assessing the propriety of his actions: Did the objective facts create a reasonable suspicion that the detained motorist was presently involved in criminal activity. See Commonwealth v. Orwig, 248 Pa.Super. 284, 375 A.2d 99, 101 (1977); see also Commonwealth v. Ferraro, 237 Pa.Super. 268, 352 A.2d 548, 550 (1975), citing Commonwealth v. Murray, 460 Pa. 53, 61, 331 A.2d 414, 418 (1975).

      . We would note, however, that the appellee was subjected to a search and seizure when he was approached and asked to produce his driver’s license and registration card. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Smith, 225 Pa.Super. 509, 311 A.2d 716, 717 (1973).

      . The officer was justified in detaining for a brief investigatory purpose the appellee on the scene for a possible violation of the Motor Vehicle Code — obedience to authorized persons directing traffic. Cf. Commonwealth v. Dennis, 289 Pa.Super. 305, 433 A.2d 79, 82 n. 7 (1981).


source: Caselaw Access Project

author: POPOVICH, Judge: CIRILLO, Judge,

license: Public Domain

text:
    613 A.2d 6
    John UNGATE and Lori Ungate, His Wife, Appellants, v. Frank PASSALACQUA, Appellee.
    Superior Court of Pennsylvania.
    Argued April 30, 1992.
    Filed Aug. 7, 1992.

      Thomas J. Carlyon, Hazleton, for appellants.
    Paul Barrett, Scranton, for appellee.
    Before CAVANAUGH, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

This case involves an appeal from the July 16,1991, order of the Court of Common Pleas of Carbon County denying the “Petition To Open Judgment Of Non-Pros” by the plaintiffs/appellants, John Ungate and Lori Ungate, his wife. We reverse.

The record reveals that on January 16, 1990, the appellants filed a praecipe for a writ of summons against Frank Passalacqua. The writ was reissued on February 16th and March 15th of 1990, with service ultimately being effectuated by special order of court. See Pa.R.Civ.P. 430. After entry of appearance of counsel for the defendant, a praecipe for rule to file a complaint was issued and directed the appellants to submit a complaint within twenty days of service of the rule or suffer judgment of non pros.

By letter dated July 25, 1990, counsel for the defendant granted the appellants’ counsel “an extension of time” until August 1, 1990, for the preparation of a complaint. On October 23, 1990, the defendant filed a praecipe for judgment of non pros for the appellants’ failure to file a complaint. Judgment was entered in favor of the defendant on the same day.

A petition to open judgment was filed on February 11,1991, wherein it was alleged that “numerous extensions” had been granted by counsel for the defendant to file a complaint. It was not until January 25, 1991, however, that counsel for the appellants learned that a judgment of non pros had been entered on October 23rd. Paragraphs 10, 11 & 13.

A rule to show cause why the appellants’ petition should not be granted was issued on February 11, 1991, and made returnable seq reg. In response, the defendant filed an answer in which he “denied ... giv[ing counsel for the appellants] numerous extensions in which to file a complaint”, save for “one written, granting ... an extension of time until August 1, 1990, and one via [the] telephone granting ... an extension of time until August 2, 1990.” Paragraph 13.

The court denied the appellants’ petition to open because the petition “on its face” was insufficient to warrant such relief. A timely appeal was filed thereafter.

The criteria for opening a judgment of non pros is well-established; to-wit:

(1) the petition should be timely filed; (2) the reason for the default reasonably explained or excused; and (3) that facts constituting grounds for a cause of action be alleged.

Thorn v. Clearfield Borough, 420 Pa. 584, 586, 218 A.2d 298, 299 (1966). Judicial discretion opening a judgment of non pros will be exercised only when the three factors co-exist. Matyas v. Albert Einstein Medical Center, 225 Pa.Super. 230, 310 A.2d 301, 302 (1973). In this same vein, it has been stated:

A request to open a judgment of non pros is by way of grace and not of right. Its grant or refusal is peculiarly a matter for the lower court’s discretion. An appellate court may not reverse the lower court’s ruling unless an abuse of discretion is clearly evident.

Mazer v. Sargent Electric Co., 407 Pa. 169, 171, 180 A.2d 63, 64 (1962) (Citation omitted).

With regard to the first prong of the tripartite test, the defendant admits that the plaintiffs’ petition was filed timely. See Appellee’s Brief at 4 & 10.

Our review of the record indicates that judgment of non pros was entered on October 23, 1990. The docket sheet indicates that the prothonotary did not mail notice of judgment to the appellants’ counsel, as required by Pa.R.Civ.P. 236, until February 11, 1991. The petition to open was filed the same day. Accordingly, we find that the appellants acted timely in filing the petition.

The next prong of the test necessitates the presentment of facts constituting grounds for a cause of action in one’s petition to open. Unlike the appellee, we are not persuaded that the allegations of the appellants are insufficient to constitute such a cause of action. To explicate, the appellants asserted in their petition to open:

14. ... the Defendant, Frank Passalacqua, on January 18, 1988 while driving his automobile in Kidder township proceeded to operate his vehicle in such a manner that he carelessly, recklessly and negligently struck the plaintiffs, John Ungate, vehicle with great force, inflicting serious and permanent injuries to the Plaintiff.
15. As a further result of the negligence of the Defendant, Frank Passalacqua, the Plaintiff, John Ungate, has suffered and will suffer a severe impairment of his future earning capacity and power.
16. ...
17. The Defendant, Frank Passalacqua, failed to properly operate his vehicle and did negligently operate his automobile in such a manner as to constitute a tortuous act on behalf of Frank Passalacqua, Defendant.

Petition to Open Judgment of Non Pros, Paragraphs 14, 15 & 17.

We find that the elemental aspects of negligence are contained within the appellants’ petition to open. See Fennell v. Nationwide Mutual Fire Ins., 412 Pa.Super. 534, 603 A.2d 1064, 1066-67 (1992) (Basic elements of a cause of action founded upon negligence: Duty, breach of duty, causal connection between conduct and injury, and damages).

Finally, we need to ascertain whether the appellants “reasonably explained” their failure to file a complaint timely. In resolving this aspect of the three-pronged test, a recitation of the procedural history of the case is essential; namely:

Jan. 16, 1990 — Writ of Summons filed by the plaintiffs;
Mar. 15, 1990 — Writ of Summons served on the defendants;
June 15, 1990 — Praecipe for rule upon the plaintiffs to file complaint: extensions granted to the plaintiffs by the defendant on July 25th (in letter form) until August 1st and (orally) until August 2nd;
Oct. 23, 1990 — Judgment of non pros entered;
Feb. 11, 1991 — Petition to open filed;
Feb. 26, 1991 — Answer to petition to open;
May 13, 1991 — Defendant’s attorney filed a praecipe that the petition and answer be placed on the next available argument list;
May 22, 1991 — Court ordered oral argument and briefs be filed by July 12, 1991;
July 16, 1991 — Court denied petition to open because “Petition on its face [wa]s insufficient----”

The chronology of events reveals that once the appellants had filed their petition to open, an answer was filed by the appellee, and, approximately 2% months later, the appellee moved to have the case placed on the argument list. Once posted, the case was orally argued and was followed by the entry of an order denying the appellants’ petition to open. Case law discloses that the procedure followed, by both the appellee and the court, was improper.

In Getzik v. Spiegel, 280 Pa.Super. 175, 421 A.2d 462 (1980), the lower court granted the plaintiffs’ petition to open judgment of non pros.

The plaintiff-husband had fallen on the defendants’ property. Counsel for the defendants filed a rule on the plaintiffs’ attorney to file a complaint within twenty days or suffer a judgment of non pros. A letter followed in which the defendants’ counsel gave the plaintiffs ten additional days to file a complaint. When a complaint was not filed, a judgment of non pros was entered in favor of the defendants. The plaintiffs then filed a petition to open. Once granted, an appeal was taken by the defendants.

This Court, on appeal, reversed and remanded because the lower court had before it material issues of fact:

In Instapak [Corp. v. S. Weisbrod Lamp and Shade Co., 248 Pa.Super. 176, 374 A.2d 1376 (1977) ], this court faced an almost identical situation in the lower court and found the lower court’s action to be premature:
Here, appellee as the moving party did not proceed by rule or by agreement of counsel to take depositions; neither did appellee order the cause for argument on petition and answer; neither did appellant as respondent take a rule on appellee to show cause why it should not either proceed to take depositions or order the cause for argument on petition and answer. Instead, with only the petition and answer, the lower court granted the petition. That decision was premature. The dispositive issue is whether appellee’s counsel did or did not have a mistaken belief about the date by which an answer had to be filed, and on that issue the court had before it no evidence, only contradictory pleadings. Such being the case, the court had no proper basis for preferring one party’s version to the other party’s.

Id., 248 Pa.Superior Ct. at 181, 374 A2d at 1379.

Here, the dispositive issue is whether the alleged illness and health of appellees’ counsel caused him to miss the notice that he had to file a complaint within a specified time. There was no evidence, only contradictory pleadings, before the lower court on this issue. Therefore, the court’s decision was premature, and we hereby remand this case for further proceedings consistent with Pa.R.C.P. 209.

280 Pa.Super. at 176, 421 A.2d at 468.

Instantly, as in Getzik and Instapak, we have disputed (material) issues of fact: Counsel for the plaintiffs alleged that he was granted extensions of time in which to file the complaint, see Petition to Open, Paragraphs 7 & 13; Counsel for the defendants denied having given any extensions other than the July 25, 1990 (written) and August 2, 1990 (oral) ones, neither of which authorized the filing of a complaint beyond August 2d. See Answer to Petition to Open, Paragraphs 7 & 13. This divergence of views warranted the activation of the procedures prescribed by Pa.R.Civ.P., 209. See Zinck v. Smashy’s Auto Salvage Inc., 250 Pa.Super. 553, 378 A.2d 1287, 1288 (1977).

Rule 209 provides:

If, after the filing and service of the answer, the moving party does not within fifteen days: (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

To place matters in perspective, under Rule 209 the petitioner (i.e., the party asking that the judgment be opened) has the burden of supporting his allegations of fact by deposition where the reasons assigned in the petition are dehors the record of judgment. D’Amore v. Erthal, 421 Pa. 417, 219 A.2d 674, 675 (1966); Cox v. Felice Perri & Sons, 412 Pa. 415, 195 A.2d 79, 80 (1963); Retzback v. Berman Co., 222 Pa.Super. 523, 294 A.2d 917 (1972). If, after being ruled to proceed, the petitioner does not take depositions, the factual allegations of his opponent will be taken as true. Smith v. Dale, 405 Pa. 293, 175 A.2d 78 (1961); Instapak, supra.

Instantly, the procedure dictated by Rule 209 was not followed. For example, in the petition to open, the appellants averred that their complaint was filed timely because they had secured extension(s) from the appellee. This was denied in the appellee’s answer. Thus was framed an issue that should have been resolved by the mechanism available under Rule 209. See, e.g., Zinck, supra. Instead, the appellee filed a praecipe to list the appellants’ petition for argument, and, thereafter, the lower court decided the case on the petition and answer alone. This was premature. D'Amore, supra; Zinck, supra; Instapak, supra; Maurice Goldstein Co. v. Margolin, 248 Pa.Super. 162, 374 A.2d 1369, 1371 (1977). Moreover, the court had no proper basis for preferring one party’s version to the other party’s. White v. Alston, 231 Pa.Super. 438, 331 A.2d 765 (1974).

Here, when the lower court ruled on the petition, neither party had taken any action under Rule 209: Appellants neither proceeded to take depositions nor did they order the cause for argument on petition and answer. However, appellee had not yet ruled appellants to show cause why they should not take one of these courses of action.

Under Rule 209, it is true, the factual averments of a responsive answer may be taken as true against a petitioner, but that is to happen only upon the occurrence of one of two contingencies: either the petitioner himself ordering “the cause for argument on petition and answer,” or respondent ordering the cause down after petitioner has ignored, for fifteen days, a rule absolute made upon him to move for depositions. There is no provision in the rule for shortcut-ting its operation by ignoring these contingencies.

Instapak, supra, 248 Pa.Super. at 181, n. 8, 374 A.2d at 1379 n. 8 (Emphasis added). Accord Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577, 580 n. 4 (1979).

Therefore, this is not a case whereby application of Rule 209 allows us to “assume” the correctness of the appellants’ or appellee’s allegations of fact with regard to extension(s) of time to file the complaint. Id. In other words, the lower court interjected itself into the proceedings prematurely, and, thus, impaired the procedures envisioned by Rule 209 from being played out. Until one of the parties did act as provided by Rule 209, or until some other force spurred matters along, the court should not have acted. Shainline, supra; Instapak, supra; Maurice Goldstein Co., supra.

The order of the lower court is reversed and the case is remanded. Appellants shall have fifteen days, following notice of this decision, to proceed as provided by Rule 209. Shainline, supra.

Order reversed and case remanded. Jurisdiction is not retained.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting.

As the majority correctly states, the decision whether to grant a petition to open a judgment of non pros is within the discretion of the trial court and an appellate court will not reverse the decision of the trial court unless there has been a clear abuse of discretion or an error of law. Triffin v. Thomas, 316 Pa.Super. 273, 462 A.2d 1346 (1983). I find that the trial court has not abused its discretion in this case. Therefore, I must respectfully dissent.

A judgment of non-pros will only be opened if three criteria are met: 1) the petition is timely filed; 2) the reason for the default is reasonably explained or excused; and 3) the facts constituting grounds for the cause of action are alleged. Buxbaum v. Pequero, 335 Pa.Super. 289, 484 A.2d 137 (1984). It is my opinion that the appellants have failed to meet the second criterion; they have failed to satisfactorily explain their failure to file a complaint. In their petition to open judgment of non-pros, appellants assert two reasons why judgment should be opened in order to allow them to prosecute their claim. Appellants first contend that they needed time to compile “all of the relevant medical records and reports needed in order to file the Civil Complaint.” I find this claim unreasonable. The law of this Commonwealth does not require that a plaintiff gather all medical reports and records before a complaint is filed. White v. Alston, 231 Pa.Super. 438, 331 A.2d 765 (1974). Complaints need only plead the damages sought, not the specific treatment received.

Appellants’ second argument is that their attorney was granted several oral extensions of time by appellee’s attorney to file a complaint. The record reveals that appellants were granted one extension of time by letter from appellee’s attorney. The letter extended the time to file the complaint to August 1, 1990. Appellant contends that subsequent to that date several additional extensions of time were granted by telephone. Pennsylvania Rule of Civil Procedure 201 dictates that any business of court conducted by attorneys must be memorialized in a writing in order to bind the parties. This rule has been extended to agreements regarding extensions of time. See Hahnemann Medical College and Hospital v. Hubbard, 267 Pa.Super. 436, 406 A.2d 1120 (1979). Therefore, any oral extensions of time, which appellants claim were granted by appellee, are invalid because they were not memorialized in writing.

The majority finds that since appellants averred that the complaint was timely filed due to extensions granted by appellee, and the appellee asserted that they did not grant such extensions, an evidentiary hearing should be held in accordance with Rule 209 of the Pennsylvania Rules of Civil Procedure in order to resolve the disputed issues of fact. However, under Rule 201 of the Pennsylvania Rules of Civil Procedure there are no disputed issues of fact. The record reveals only one written extension of time. Therefore, only that one written extension can be considered by the court. The majority states that because the trial court acted prematurely in denying appellants’ petition to open without first considering proof of their averments, the case should be remanded to allow appellants to proceed as provided by Rule 209. I disagree. Remand is not required when either the petitioner or respondent lists the case for argument on the basis of the petition and answer alone. Lazzarotti v. Juliano, 322 Pa.Super. 129, 469 A.2d 216 (1983). Here, appellee listed the case for argument subsequent to the filing of a petition and answer. The parties had ample opportunity to present argument about the oral extensions of time to the trial court. Therefore, the majority’s finding that the trial court erred in failing to order the parties to proceed pursuant to Rule 209 is meritless.

An evidentiary hearing to determine whether any oral extensions were granted would be an exercise in futility; oral extensions are not binding. See Pa.R.C.P. 201. Under Rule 201 and the case law of the Commonwealth appellants have failed to establish a valid explanation or excuse for not filing a timely complaint. Thus, I would affirm the trial court’s order denying the petition to open the non-pros judgment.

      . In fact, by failing to avail himself of the benefit of Rule 209, Passalacqua followed the prior practice, under which the ordering of the action for argument on petition and answer admitted for the purpose of the argument the truth of the answer or petition filed by the adverse party. Goodrich-Amram 2d, § 209:2 n. 76 (1991), citing Harr v. Bernheimer, 322 Pa. 412, 185 A. 857 (1936); Rebic v. Gulf Refining Co., 122 Pa.Super. 149, 186 A. 236 (1936). Parenthetically, it could be argued that because the appellee " ‘[set] the case down without ruling the petitioner to proceed, [he admitted] the averments of the petition.’ ” Teodori v. Werner, 490 Pa. 58, 415 A.2d 31, 33 (1980) (Citations omitted); Lambakis v. Exar, 340 Pa.Super. 483, 490 A.2d 882, 886 (1985); Maurice Goldstein Co. v. Margolin, 248 Pa.Super. 162, 374 A.2d 1369, 1371 (1977). In this sense, the court below acted improperly in denying the petition to open in that the appellee would be viewed as conceding the appellants’ extension argument, and, therefore, satisfying the ‘‘reasonable excuse” prong of the tripartite test.

        Interestingly, nowhere in the court’s opinion is there any mention of whether the appellants satisfied this portion of the petition to open test. This should be remedied on remand.

      . It has been stated on numerous occasions that the court itself can set a timetable for the taking of depositions and for decision. See, e.g., Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577, 581 n. 5 (1979).
      Most recently, our Supreme Court has added to this arsenal, in dealing with dilatory litigants, by allowing a court to dismiss a case which has been inactive on the dockets for at least two years. See Penn Piping, Inc. v. INA, 529 Pa. 350, 603 A.2d 1006 (1992).


author: WIEAND, Judge:

text:
    613 A.2d 12
    COMMONWEALTH of Pennsylvania, Appellant, v. Demetrius CULL, Appellee.
    Superior Court of Pennsylvania.
    Argued March 12, 1992.
    Filed Aug. 11, 1992.

      Karen A. Brancheau, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Jules Epstein, Philadelphia, for appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   WIEAND, Judge:

After Demetrius Cull had been tried by jury and found guilty of first degree murder, criminal conspiracy and possession of an instrument of crime, the trial court granted a defense motion for new trial. Relying upon the decision of the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the trial court held that defense counsel had been ineffective for failing to move pre-trial or at trial to redact or exclude statements of a co-defendant which implicated Cull in the offenses with which he had been charged. The Commonwealth has appealed. It contends that the statements made by the co-defendant were admissible pursuant to the co-conspirator exception to the hearsay rule and that objections by defense counsel, therefore, would have been unsupportable.

Cull and his co-defendant, Anthony Smith, were tried jointly before a jury, and both were found guilty of first degree murder, criminal conspiracy and possession of an instrument of crime on evidence summarized by the trial court as follows:

[O]n September 13, 1988, the body of Sharon Smith was found in the basement of 248 North Wanamaker Street, a rowhouse located in the City of Philadelphia. The decedent had been shot once in the head with a .32 caliber Smith and Wesson bullet.
On Saturday, September 10, 1988, at approximately 8:00 a.m., Deborah Coleman, who lived in the rowhouse next door to 248 North Wanamaker Street, [had] heard sounds of a scuffle and an argument coming from 248 North Wanamaker Street. Ms. Coleman testified that she [had] heard sounds of a physical struggle on both the first and second floor of the house, with several male voices and a female voice arguing, and that she [had] heard the female voice scream, “Help me, help me, please.” Shortly thereafter the noises from next door [had] stopped abruptly.
Ms. Coleman identified both the defendant, Demetrius Cull, and co-defendant, Anthony Smith, as residents of the 248 North Wanamaker Street rowhouse. Several witnesses testified that co-defendant Smith sold “crack” cocaine from the rowhouse, while the defendant often acted as a lookout for police.
Both the defendant and co-defendant Smith were observed leaving 248 North Wanamaker Street between 8:00 a.m. and 8:30 a.m. that morning by a neighbor. Shortly thereafter, the co-defendants drove to the 100 block of Wanamaker Street, where they spoke to Faye Cherry, co-defendant Smith’s former girlfriend.
Co-defendant Smith told Faye Cherry that “we just shot this fiend in the head and left her in the basement.” Smith told Cherry that Sharon Smith was killed “because we wouldn’t give her no drugs and she threatened to call the cops.” [Smith also] told Cherry not to tell anyone that she knew him if she was questioned, and also said he was leaving town.
About 30 minutes later, the co-defendant Smith telephoned Fitzroy Lewis (also known as “Mark” or “Shorty”), who had been one of Smith’s drug suppliers. In that conversation, Anthony Smith stated that he [had] directed the defendant, Demetrius Cull, to shoot the decedent. Anthony Smith said he was leaving for New York, and telephoned Lewis several days later to say that he was in New York, but would soon be heading south.
Several weeks before the murder of Sharon Smith, Anthony Smith told Lewis that he had purchased a .32 caliber gun. The night before the murder, defendant Demetrius Cull was observed firing a gun into the air outside 248 North Wanamaker Street. Several spent cartridges consistent with the bullet which killed Sharon Smith were found inside 248 North Wanamaker Street.
The medical examiner conducted an autopsy, which revealed that the decedent [had been] struck by a single bullet in the left side of her head, which [had] pierced the skull and entered the brain. The medical examiner testified that the cause of death, to a reasonable degree of medical certainty, was the gunshot wound to the head.
On January 25, 1989, the defendant was arrested in Columbia, South Carolina, and was returned to Philadelphia on January 26, 1989.

The standard we employ to evaluate claims of ineffective assistance of counsel has been stated by the Pennsylvania Supreme Court in the following manner:

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

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). See also: Commonwealth v. Rollins, 525 Pa. 335, 344, 580 A.2d 744, 748 (1990); Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). To establish prejudice under this standard “requires [a] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). See: Commonwealth v. Pierce, 515 Pa. 153, 157-158, 527 A.2d 973, 974-975 (1987); Commonwealth v. Gainer, 397 Pa.Super. 348, 352, 580 A.2d 333, 335 (1990) (en banc).

In Bruton v. United States, supra, the Supreme Court held that in a joint trial the admission into evidence of a confession by a co-defendant which inculpates the defendant violates the defendant’s constitutional right to confront adverse witnesses under the Sixth Amendment to the United States Constitution. However, statements made by a co-conspirator during the course of a conspiracy are generally held to be admissible against another co-conspirator. “A well-established exception to the hearsay rule permits the out-of-court declarations of one co-conspirator to be admitted against another co-conspirator provided that the declarations [are] made during the conspiracy and in furtherance of the common design.” Commonwealth, v. Coccioletti, 493 Pa. 103, 111, 425 A.2d 387, 391 (1981). See also: Commonwealth v. Lambert, 529 Pa. 320, 334-335, 603 A.2d 568, 575 (1992); Commonwealth v. Dreibelbis, 493 Pa. 466, 475, 426 A.2d 1111, 1115 (1981); Commonwealth v. Moyers, 391 Pa.Super. 262, 267, 570 A.2d 1323, 1326 (1990).

The interplay between the rule announced in Bruton and the co-conspirator exception to the hearsay rule was discussed by the Pennsylvania Supreme Court in Commonwealth v. Coccioletti, supra. The Court there said:

[I]n Bruton, the co-defendant’s out of court confession was inadmissible because it violated the hearsay rule of evidence. Id. at 128 n. 3, 88 S.Ct. at 1623 n. 3. The Court expressly reserved judgment about cases where the co-defendant’s confession would be admissible under some exception to the hearsay rule. Id. at 128 n. 3, 88 S.Ct. at 1623 n. 3.
In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), a criminal case originating in the State of Georgia, the U.S. Supreme Court held that an out of court declaration by a co-conspirator which implicated the defendant was admissible and the defendant’s Sixth Amendment rights were not violated even though the co-conspirator did not take the stand. Unlike the Bruton case where no hearsay exception existed, the declarations were admitted in a Georgia Court under the co-conspirator exception to the hearsay rule.
In Dutton, the U.S. Supreme Court refused to equate the hearsay rule with the Sixth Amendment confrontation clause, i.e., even though a statement may come within an exception to the hearsay rule, it must still be tested against the confrontation clause. The Court held that the confrontation clause was not violated whenever the declarations had strong “indicia of reliability”. Id. at 89, 91 S.Ct. at 220. These “indicia of reliability” satisfied the Sixth Amendment confrontation clause policy of “practical concern for the accuracy of the truth-determining process in criminal trials ...” Id. at 89, 91 S.Ct. at 220.

Id. 493 Pa. at 111-112, 425 A.2d at 391. Generally, sufficient “indicia of reliability” to pass muster under the confrontation clause “can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Idaho v. Wright, 497 U.S. 805, 810, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638, 652 (1990). See also: Bourjaily v. United States, 483 U.S. 171, 183, 107 S.Ct. 2775, 2782-2783, 97 L.Ed.2d 144, 157-158 (1987); Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597, 608 (1980); Commonwealth v. Watson, 355 Pa.Super. 160, 166, 512 A.2d 1261, 1264 (1986). We conclude, therefore, that Bruton is not applicable to exclude out of court statements by a co-defendant which are admissible under the co-conspirator exception to the hearsay rule.

The statements of appellee’s co-defendant, which the trial court determined to be in violation of the Bruton rule, were heard by the jury primarily via testimony of Commonwealth witnesses Faye Cherry and Fitzroy Lewis. Cherry, who was a former girlfriend of Smith, testified that at about 8:30 a.m. on September 10, 1988, approximately one-half hour after the murder, Cull and Smith arrived at her home via taxi. She testified that the following then occurred:

And they came up in it and Daheem [Smith] got out and told me if anybody came around looking for him, I did not know him. And I asked him why and he said, “Because we just shot this fiend in the head and left her in the basement.” And I asked him why and he told me, “Because we wouldn’t give her no drugs and she threatened to call the cops.” Then after that Demetrius came out and he said, “I shot — ” he said, “I shot the bitch because she scratched me in my face.” And I asked him why and he was like, “Because she scratched me in my face.” And then Daheem asked me did I have any pictures of him and I said no. Then he said, “Well, what’s your phone number, so I can call you and find out what’s going on down here.” And I didn’t give him the phone number. And then after that he said, “I love you.” Got in the car and they left and that was the last time I saw him.

Fitzroy Lewis, who was a drug supplier to the crack house operated by Cull and Smith, testified to a telephone conversation which he had had with Smith approximately an hour after the murder. He testified that Smith told him that he and Cull had just killed a girl and that Cull had been the one who had pulled the trigger after Smith told him to do so. According to Lewis, Smith related that he and Cull had attempted to clean up and remove their belongings from the house following the shooting.

The Commonwealth contends that these statements by Smith were made to Cherry and Lewis in an effort to elicit help in covering up the crime and in effecting an escape. Because the conspiracy continued after the murder had been committed and continued while Smith and Cull attempted to hide their crime and escape prosecution, the Commonwealth contends, Smith’s statements were made while the conspiracy continued to exist.

With regard to the scope and duration of a conspiracy for purposes of applying the co-conspirator exception to the hearsay rule, the Pennsylvania Supreme Court has said:

In Commonwealth v. Pass, 468 Pa. 36, 360 A.2d 167 (1976), this Court specifically addressed the question of whether attempts by a co-conspirator to conceal evidence after the commission of a crime come within the scope of the conspiracy to commit the crime. Therein we adopted the following passage from United States v. Hickey, 360 F.2d 127, 141 (7th Cir.1966) cert. denied, 385 U.S. 928, 87 S.Ct. 284,17 L.Ed.2d 210 (1966), which interpreted the decision of the United States Supreme Court in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957):
“The duration of a conspiracy depends upon the facts of the particular case, that is, it depends upon the scope of the agreement entered into by its members. Generally, the conspiracy ends when its principal objective is accomplished because no agreement to retain secrecy after the achievement of the unlawful end can be shown or implied by mere ‘acts of covering up.’ Thus in Grunewald v. United States, supra, 353 U.S. at 402, 77 S.Ct. at 972, the Supreme Court stated, ‘Acts of covering up, even though done in the context of a mutually understood need for secrecy, cannot themselves constitute proof that concealment of the crime after its commission was part of the initial agreement among the conspirators.’ But the fact that the ‘central objective’ of the conspiracy has been nominally attained does not preclude the continuance of the conspiracy. Where there is evidence that the conspirators originally agreed to take certain steps after the principal objective of the conspiracy was reached, or evidence from which such an agreement may reasonably be inferred, the conspiracy may be found to continue. Atkins v. United States, 307 F,2d 937, 940 (9th Cir.1962); cf., United States v. Allegretti, 340 F.2d 254, 256 (7th Cir.1964), cert. denied, 381 U.S. 911, 85 S.Ct. 1531, 14 L.Ed.2d 433 (1965).... The crucial factor is the necessity for some showing that the later activities were part of the original plan.”

Commonwealth v. Pass, supra at 45-46, 360 A.2d at 171. Commonwealth v. Evans, 489 Pa. 85, 92-93, 413 A.2d 1025, 1028-1029 (1980) (footnote omitted). See also: Commonwealth v. Chester, 526 Pa. 578, 593-594, 587 A.2d 1367, 1374-1375 (1991), cert. denied, — U.S. —, 112 S.Ct. 152 and 422, 116 L.Ed.2d 117 and 442 (1991); Commonwealth v. Haag, 522 Pa. 388, 401-402, 562 A.2d 289, 296 (1989); Commonwealth v. Watson, supra at 165, 512 A.2d at 1264; Commonwealth v. Basile, 312 Pa.Super. 206, 213-215, 458 A.2d 587, 590-591 (1983); Commonwealth v. Tumminello, 292 Pa.Super. 381, 389-390, 437 A.2d 435, 439-440 (1981).

After careful examination, we conclude that the conspiracy between Smith and appellee continued after the commission of the murder and included their joint efforts to conceal the crime and flee from prosecution. Thus, when Smith told Cherry, his former girlfriend, to deny knowing him, this was in furtherance of the efforts of Smith and Cull to avoid prosecution for their crime. Similarly, when Smith spoke by telephone to Lewis, the drug supplier, an hour after the crime, the conspiracy was also continuing. Indeed, when Smith spoke with Lewis, he spoke of his and Cull’s efforts to cover up the crime, and he solicited Lewis’s help in finding a hotel where he and Cull could hide out until nightfall. Therefore, this conversation was also in furtherance of the conspiracy.

The trial court held that even if Smith’s statements to Lewis were made during the continuation of the conspiracy and in pursuance of its goals, they were inadmissible because there was no evidence that Cull was present or heard this conversation. This reasoning added an unnecessary requirement for the admission of a co-conspirator’s statements. “ ‘The declarations or acts of one co-conspirator made to third parties in the absence of his co-conspirator are admissible in evidence against both provided that such declarations [or acts] were made during the conspiracy and in furtherance of the common design.’ ” Commonwealth v. Porter, 449 Pa. 153, 161, 295 A.2d 311, 314 (1972), quoting Commonwealth v. Ellsworth, 409 Pa. 505, 509, 187 A.2d 640, 642 (1963). See also: Commonwealth v. Evans, supra, 489 Pa. at 92, 413 A.2d at 1028; Commonwealth v. Moyers, supra, 391 Pa.Superior Ct. at 269, 570 A.2d at 1326-1327.

While Faye Cherry was being cross-examined by counsel for co-defendant Smith, she testified to a telephone conversation with Smith about a month and a half after the murder in which Smith said that he had been merely a bystander and that the killing had been committed by Cull. This statement was not admissible under the co-conspirator exception to the hearsay rule, and it should not have been received. There was no evidence that the conspiracy had been continuing at that time or that Smith’s statements had been made in furtherance of a common design. They were, rather, an attempt to shift the blame for the killing to Cull. This was the kind of statement which Bruton was intended to exclude. Therefore, counsel should have acted to exclude the witness’s testimony.

Inasmuch as the other statements were admissible and because the evidence of Cull’s guilt was overwhelming, however, we conclude that the information improperly elicited during cross-examination of Cherry was not prejudicial. As such, it was an inadequate reason for granting a new trial. Not only was there evidence placing Cull at the scene of the crime, but his own admissions implicated him in the murder. Thus, counsel’s failure to object to the statement made by Smith a month and a half after the killing did not require the granting of a new trial.

The trial court further determined that trial counsel’s representation of appellee was deficient with respect to the testimony of Detective Franklin McGuoirk who was permitted to describe a prior consistent statement made by Commonwealth witness Fitzroy Lewis. Essentially, the prior statement related by McGuoirk was identical to Lewis’s own trial testimony describing the telephone conversation that he had had with co-defendant Smith shortly after the murder. With respect to McGuoirk’s testimony, trial counsel objected and requested that any references to appellee’s participation in the crimes be redacted from the detective’s testimony. When the detective subsequently referred to appellee in his testimony, trial counsel moved for a mistrial, which the trial court denied. Hence, we do not find that counsel was ineffective for failing to object to or request redaction of Detective McGuoirk’s testimony. The record discloses that counsel, in fact, took those actions. The testimony, moreover and in any event, did not violate the teaching of Bruton.

For these reasons, we conclude that the trial court’s award of a new trial was erroneous and must be reversed.

Reversed and remanded for consideration of the remaining issues raised in appellee’s post-trial motions. Jurisdiction Relinquished.


author: JOHNSON, Judge:

text:
    613 A.2d 17
    COMMONWEALTH of Pennsylvania ex rel. Patricia BROSCIOUS v. Nathan L. FERN. Appeal of Patricia BROSCIOUS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1992.
    Filed Aug. 24, 1992.

      Michael P. Gregorowicz, Bloomsburg, for appellant.
    John R. Gordner, Berwick, for appellee. (Submitted)
    Before JOHNSON, FORD ELLIOTT and HOFFMAN, JJ.
   JOHNSON, Judge:

Patricia Broscious appeals from an order entered October 8, 1991, which granted summary judgment in favor of Nathan Fern. Broscious also challenges the trial court’s refusal to order the parties to submit to additional red blood cell and human leukocyte antigen (HLA) blood testing. We affirm the trial court’s denial of additional blood testing and reverse the order of summary judgment.

On May 15, 1989, Broscious filed a claim for child support which alleged that Fern was the father of her son, who was born May 10, 1989. Fern denied paternity and the parties and the child submitted to blood testing on December 19, 1989. Red blood cell tests were performed on these samples but because the blood specimens were two days old, the laboratory was unable to perform HLA tests.

On May 21, 1990, Broscious filed a motion requesting that the trial court order the parties to submit to an additional extraction of blood so that the HLA tests could be performed. On June 15, 1990, following a stipulation by the parties, the trial court ordered the second extraction of blood for the purpose of performing the HLA tests. The parties and the child submitted to the second extraction of blood on June 21, 1990. The laboratory concluded that the combined results of the HLA and the red blood cell tests excluded Fern as the father of the child.

In July of 1990, Broscious and her child sent a third sample of blood to the same laboratory which had performed the previous tests. The results of Broscious’ repeated red blood cell typing were inconsistent with the results of her previous red blood cell typing. The laboratory, unable to account for the inconsistency, recommended that both parties and the child be retested with both red blood cell and HLA tests. On October 9, 1990, Broscious filed a motion requesting the trial court to again order the parties to submit to additional blood testing. Following a hearing on this issue, the trial court denied Broscious’ motion. Broscious filed timely exceptions to this order, which were dismissed by the trial court. Broscious then filed an appeal with this court which was quashed, as interlocutory.

On August 30, 1991, Fern filed a motion for Summary Judgment which the trial court granted. It is from this order that Broscious appeals, also raising the issue of whether the trial court erred in failing to order the parties to submit to additional blood testing.

First, Broscious contends that the trial court erred in granting Fern’s motion for summary judgment without permitting Broscious to present other evidence of paternity. We agree.

When reviewing the grant of a motion for summary judgment, we view the evidence in the light most favorable to the non-moving party, who must be given the benefit of all reasonable inferences. Dorohovich v. West American Ins. Co., 403 Pa.Super. 412, 589 A.2d 252 (1991). Any doubt as to existence of a genuine issue of material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). An entry of summary judgment may only be granted where the right is clear and free from doubt. Id., 527 Pa. at 134-135, 589 A.2d at 206; Lower Lake Dock v. Messinger Bearing Corp., 395 Pa.Super. 456, 577 A.2d 631 (1990); Pa.R.C.P. 1035.

In the present case, the trial court granted summary judgment based on the results of the blood tests performed on the parties and the child. While, under some circumstances blood tests alone may be used to conclusively exclude an individual from paternity of a particular child, such is not the case here. See Faust v. Faggart, 406 Pa.Super. 357, 594 A.2d 660 (1991). Our legislature has addressed this issue in 23 Pa.C.S. § 5104(f) which states:

(f) Effect of test results. — If the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child, the question of paternity, parentage or identity of a child shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence

In this case, the court held a hearing at which the experts agreed that there was no reason to suspect that the first two blood tests were other than reliable and accurate. Yet, based on the results of the third independent test performed on wife’s blood, they were reluctant to state that the tests conclusively excluded Fern as the father of the child. Under 23 Pa.C.S. § 5104(f), only if there is no disagreement among the experts in their findings, may the trial court act accordingly and grant judgment for the alleged father. Here, the expert testimony was inconclusive and left open a question of material fact, namely the paternity of the child. Therefore, the trial court could not properly grant summary judgment for Fern. Pa.R.C.P. 1035. The blood tests should properly be submitted “upon all the evidence” to the finder of fact. 23 Pa.C.S. § 5104.

In addition to arguing against the validity of the results of the blood tests, Broscious should be given the opportunity to offer other evidence, such as the child’s physical resemblance to Fern, in her effort to establish Fern’s paternity of the child. Mitchell v. Hopson, 376 Pa.Super. 166, 545 A.2d 371 (1988); Tyler v. King, 344 Pa.Super. 78, 496 A.2d 16 (1985). After the submission of all evidence, it will be for the finder-of-fact to decide whether Broscious has proven by a preponderance of the evidence that Fern is the father of her child.

Second, Broscious alleges that the trial court erred in failing to order duplicate blood tests for the parties and the child. We disagree.

In Koleski v. Park, 363 Pa.Super. 22, 525 A.2d 405 (1987), we stated that duplicate blood tests may only be ordered if the proponent proves by a preponderance of the evidence, during a hearing, that the initial blood tests were defective and that subsequent testing is required for an accurate determination of paternity. In this case, the trial court held the required hearing on this issue and found that the initial blood tests were not defective. While evidence was introduced that cast some doubt on the test results, the trial court concluded that Broscious failed to prove by a preponderance of the evidence that the red blood cell and HLA tests were defective. After a thorough review of the record, we are unable to conclude that the trial court erred in this result.

We, therefore, affirm the order of the trial court denying Broscious’ request for additional blood testing and reverse the order granting summary judgment and remand for further proceedings consistent with this opinion.


author: MONTEMURO, Judge.

text:
    613 A.2d 20
    Joann McAULIFFE v. John McAULIFFE, Appellant.
    Superior Court of Pennsylvania.
    Argued July 29, 1992.
    Filed Sept. 16, 1992.

      Emil W. Kantra, II, Allentown, for appellant.
    Michael R. McFarlin, Allentown, for appellee.
    Before MONTEMURO, FORD ELLIOTT and CERCONE, JJ.
   MONTEMURO, Judge.

This is an appeal from an order affirming the order of support entered against appellant in the amount of $1,840.00 per month. Appellant raises three issues on appeal:

1. Did the lower court commit an error of law or abuse of discretion in failing to recognize the actual expenditures for equipment or cost of equipment acquired during the 1990 calendar year by McAuliffe Asphalt Paving, Inc. in determining whether there was a change in Mr. McAuliffe’s financial circumstances justifying a modification of the order of support entered against him;
2. Did the lower court commit an error of law or abuse of discretion in attributing interest income to Mr. McAuliffe on account of indebtedness owed to him by McAuliffe Asphalt Paving, Inc. when no interest income was in fact received and retained by him in prior calendar years when payments designated as interest were returned immediately to the corporation; and
3. Did the lower court commit an error of law or abuse of discretion in failing to recognize bad debts written off by McAuliffe Asphalt Paving, Inc. in determining whether or not a change in Mr. McAuliffe’s circumstances occurred justifying a modification of the order of support.

For the reasons set forth below, we affirm.

On February 11, 1988, after approximately three years of marriage, appellee-wife and appellant-husband separated. Thereafter, on February 17, appellee filed a complaint for the support of herself against appellant. On May 16, 1990, the trial court ordered that appellant pay $3,200.00 per month for the support of appellee. Subsequently, on June 20, 1990, appellant filed a Petition for Modification of the Support Order. The court granted the petition, and on January 17, 1991 the court modified the support order and ordered appellant to pay $1,840.00 per month for the support of appellee. Once again, on February 1, 1991, appellant filed another Petition for Modification alleging that the prior order was based on his 1989 personal and corporate federal income tax returns, and that his current economic position has changed substantially. After a hearing, the trial court entered an order on October 22, 1991, affirming the January 17, 1991 order of support. This appeal follows.

Initially we note that our scope of review from an order awarding support is very narrow. We can reverse a support order only if we find that the order cannot be sustained on any valid ground. Shovlin v. Shovlin, 318 Pa.Super. 516, 465 A.2d 673 (1983). The decision of the trial court will not be reversed absent an abuse of discretion or an error of law. Prozzoly v. Prozzoly, 327 Pa.Super. 326, 475 A.2d 820 (1984). Where the trial court finds that claims of reduced income are simply not credible, a reviewing court will generally not disturb this determination on appeal. Cunningham v. Cunningham, 378 Pa.Super. 280, 548 A.2d 611 (1988). Additionally, to prove that a modification of an order of support is warranted, a party must demonstrate that a material change of circumstances has occurred since the date of the entry of the order for which modification is sought. Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983).

Appellant’s first claim of error is that the trial court erred in failing to recognize cash outlays for equipment acquired during the 1990 calendar year by McAuliffe Asphalt Paving, Inc. in determining whether there was a change in his financial circumstances justifying a modification of the order of support entered against him. Appellant is a self-employed paving contractor and the sole shareholder of McAuliffe Asphalt Paving, Inc. He asserts that a substantial increase of cash outlays for equipment in his business from $66,046 in 1989 to $201,894 in 1990 justify his dramatic decrease in income in 1990 and therefore, he argues that he is entitled to a reduction in support. The trial court, however, found that appellant did not prove that the cash outlays were necessary for the business, and therefore found that appellant was not entitled to a support reduction on this ground. We agree.

It is well settled that to determine the financial responsibilities of the parties to a dissolving marriage:

income must reflect actual available financial resources and not the oft-times fictional financial picture which develops as the result of depreciation deductions taken against ... income as permitted by the federal income tax laws. Otherwise put, “cash flow” ought to be considered and not federally taxed income.

Cunningham v. Cunningham, supra, 378 Pa.Superior Ct. at 282, 548 A.2d at 612-613. Depreciation and depletion expenses that are allowed under federal income tax law will not automatically be deducted from gross income for the purpose of determining support responsibilities. Id. Rather

depreciation and depletion expenses should be deducted from gross income only where they reflect an actual reduction in the personal income of the party claiming the deductions, such as where, e.g., he or she actually expends funds to replace worn equipment or purchase new reserves.

Id., 378 Pa.Superior Ct. at 282, 548 A.2d at 613. Furthermore, the “new reserves” contemplated above should not be read- to mean an allocation for future expenditures or the expansion of a party’s business. To the contrary, the cash outlays for “new reserves” must be necessary for the continued operation and smooth running of the business. Id. As this court has previously stated

To allow husband to shield substantial income of his business from consideration in determining his support obligation without more evidence as to a legitimate need to do so would allow spouses with support obligations to evade their obligations by unilaterally reducing their income. This is obviously impermissible under Pennsylvania law.

King v. King, 390 Pa.Super. 226, 568 A.2d 627 (1989).

Here, appellant, on his 1990 federal tax return, reported expenditures for new equipment in the amount of $201,894.00. Appellant also claimed depreciation for equipment in the amount of $98,836.00. At the hearing, appellant testified that all of the purchases were necessary to replace worn equipment or to preserve the capital of the business. Appellant introduced a list of the equipment he purchased in 1990 and a list of the equipment he retired or sold in 1990. After the hearing, wherein appellant was the only person to testify, the trial judge determined that appellant did not meet his burden of proving that the recent discretionary cash outlays for equipment were necessary for the business at that time. In making this determination, the trial court assumed that at least $99,836.00, the amount that appellant claimed in depreciation, was spent to replace fully depreciated equipment or to otherwise preserve and maintain the business. By making this assumption, the trial court actually made appellant’s burden of establishing that all of the cash outlays were necessary easier. However, even with this assumption, the trial court found that appellant did not meet his burden of proving that the expenditures were necessary to maintain or preserve his business. The trial court had the benefit of receiving appellant’s testimony, and therefore was in the best position to determine his veracity. The court was not compelled to accept as true all of appellants statements, but was permitted to make its own deductions from the evidence and accompanying circumstances. Williams v. Williams, 175 Pa.Super. 409, 104 A.2d 499 (1954). Finding no abuse of discretion with the trial court’s determination, we affirm this finding.

Appellant’s second argument on appeal is that the trial court erred in attributing interest income to appellant on account of indebtedness owed to him by McAuliffe Asphalt Paving, Inc., when no interest income was in fact received by him during the 1990 calendar year. Throughout the existence of his business, appellant has contributed money to the corporation in the form of loans. Historically, the corporation would, in turn, issue appellant an interest cheek due on the indebtedness each year to satisfy requirements of the Internal Revenue Service. Appellant would then immediately remit this check back to the corporation resulting in an increase in indebtedness between the corporation and himself. In 1990, however, appellant testified that his accountant advised him to reclassify the loans made to the corporation as contributions of capital so that the corporation would no longer be obligated to pay interest on the indebtedness. This new classification also worked to decrease appellant’s federal income tax liability and, according to appellant, his available cash flow. Thus, appellant claims that his support obligation should be modified. We disagree.

As discussed above, a support order will only be modified if the moving party can demonstrate a material change in financial circumstances significant enough to warrant a modification. Commonwealth v. Vogelsong, supra. In determining whether the financial circumstances have changed, we must consider the actual cash flow of the party. Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981). Here, the only change in circumstances is the reclassification of the money appellant gave to his corporation. As stated by appellant, he never used the interest paid to him by the corporation, but merely put the money back in the company in the form of more loans. Thus, appellant testified that he was actually taxed on this money which he never had the benefit of using. Additionally, the corporation would take interest deductions on its corporate income tax in an equal amount to the money being paid to appellant. With the new classification, appellant is no longer being taxed on the interest payments to which he claims to have never received. Thus, in actuality, appellant would have more cash available to him since he is no longer liable on his personal income taxes for this interest income. Furthermore, the reclassification of the loan payments to capital contributions serve to increase appellant’s basis in the corporate stock and, therefore, he will receive his return on these contributions when he liquidates the business. Accordingly, we find that the trial court did not err in refusing to find a change of circumstances due to appellant’s reclassification of corporate loans.

Finally, appellant argues that the lower court erred in failing to recognize bad debts written off by McAuliffe Asphalt Paving, Inc. in determining whether or not a change in appellant’s circumstances occurred justifying a modification of the order of support. Here, at the hearing, appellant testified he wrote off approximately $39,554.00 for bad debts in 1990. As a result, appellant argues that there was a change in his financial circumstances sufficient enough to warrant a modification of the support order. We disagree.

As stated above, appellant bears the burden of proving the change of circumstances sufficient to warrant a modification. Here the only evidence appellant presented with respect to the bad debts was his own testimony. At the hearing, appellant testified as follows:

American Paving, they just said they couldn’t pay, and they weren’t doing any work. We couldn’t collect. CMV Associates, they filed bankruptcy. Cilia’s Trucking, they filed bankruptcy. Brian Danner, he, he just, the trucking business, he’s a trucker, he said he just couldn’t pay. We sold him fuel. F & K Construction, we can’t find him. Gold Metal Construction, it was minor. Jancosky and Son, he gave us a bad check. We hadn’t, we didn’t, weren’t able to find him. Lee Contracting went out of business. Kenneth Marcks gave us a bad check, which we’re still trying to collect. Timothy Marcks, he couldn’t pay. Albert Perry gave us a bad check. Patricia Peterson gave us a series of bad checks. Ron Proeak is a contractor, a hauling contractor, he couldn’t pay his fuel bill. Robin Concrete filed bankruptcy. Rocky’s Blacktop, we can’t find him. Gerald Samer gave us a bad check. T & K Hauling, he was in jail. Keith Dieterly, he just couldn’t pay us. F & K is also on the bottom, we couldn’t find him. Konesky Construction, he can’t pay. Lazawicky, can’t pay. Lee Martin Discount, same thing. Miscavage, we have a judgment against him which we can’t collect. Oakwood, we have a judgment against him. We can’t collect. Gerald Samer, that’s only $10.00. Yvonne Shelly, she has paid that $121.00 since. Zeiner Construction, he filed bankruptcy.

No testimony was given as to how appellant attempted to collect these debts. He did not testify as to how or if he tried to locate the debtors or to put them on notice of his claims. He did not mention if he attempted to file proof of claims against any of the bankrupt debtors or if he had obtained judgments prior to any of the bankruptcy filings. Simply put, appellant failed to meet his burden of proof in establishing that these debts were actually bad debts and that they changed his financial circumstances. As the trial court found, even in spite of these alleged bad debts, appellant was able to report increased revenues for 1990. Thus, without additional proof that these debts were and will remain uncollectible, appellant’s financial condition cannot be said to have changed materially. Accordingly, we affirm the order of the trial court.

Order affirmed.

      . Appellee claims that the instant appeal is interlocutory and should be dismissed because an award of alimony pendente lite constitutes an interim order which is not appealable. While this is a correct statement of the law, it is not applicable in this case. Here, appellant is appealing an order of support which was awarded after appellee filed an independent complaint in support. Such an award is appealable within thirty days pursuant to Pa.RX.P. 1910.11 and 1910.12. Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319 (1986).


author: JOHNSON, Judge: POPOVICH, Judge,

text:
    613 A.2d 564
    COMMONWEALTH of Pennsylvania v. George M. TOWNSEND, Appellant.
    Superior Court of Pennsylvania.
    Argued June 1, 1992.
    Filed Aug. 6, 1992.
    Petition for Allowance of Appeal Denied Dec. 16, 1992.

      Nicholas H. Krayer, III, Beaver, for appellant.
    Ahmed Aziz, Asst. Dist. Atty., Aliquippa, for Comm., appellee.
    Before ROWLEY, President Judge, and WIEAND, CIRILLO, OLSZEWSKI, MONTEMURO, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   JOHNSON, Judge:

In this appeal from Judgment of Sentence, we are asked to review the trial court’s determination that breathalyzer test results were properly admitted at trial. George M. Townsend contends that the procedures employed in operating the testing equipment were in violation of applicable regulations. We conclude that Townsend was entitled to suppression of the test results, finding that the trial court erred in its determination that the Commonwealth had carried its burden of demonstrating compliance with the regulations. Accordingly, we reverse and remand for a new trial.

On June 22,1988, Townsend was charged by a Beaver Falls Police Officer with operating a vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving, 75 Pa.C.S. § 3731(a)(1), operating a vehicle while the amount of alcohol by weight in his blood was .10% or greater, 75 Pa.C.S. § 3731(a)(4), and driving the wrong direction on a one-way street, 75 Pa.C.S. § 3308(b). A jury trial was held on the two driving under the influence charges. The Commonwealth presented the testimony of the arresting officer and the testimony of the officer who administered a breathalyzer test to Townsend, as well as the testimony of Jerry Richey, an Intoxilyzer Technician for the Allegheny County Department of Laboratories. The jury returned a verdict of guilty on the charge of operating a vehicle while the amount of alcohol by weight was .10% or greater, 75 Pa.C.S. § 3731(a)(4).

On appeal, Townsend contests the admissibility of the results of the breath test for two separate reasons. First, he contends that the simulator solution used to verify the accuracy of the testing device was not produced in accordance with applicable regulations. Specifically, Townsend directs our attention to regulations which instruct that simulator solution is to be manufactured and tested for accuracy at “independent laboratories.” See, 67 Pa.Code § 77.24(d), infra. He argues that, within the meaning of the regulation, the section of the Allegheny County Department of Laboratories which manufactures the solution is not independent of the section of the same department which tests the solution for accuracy. Second, Townsend argues that, even though the testing device in question was removed from service due to malfunctions, at trial, the Commonwealth failed to demonstrate regulatory compliance requiring such machines to be “serviced, repaired and adjusted, as necessary, ... prior to being placed back into service.” See, 67 Pa.Code § 77.24(c). For the reasons which follow, we conclude that the Commonwealth has failed to demonstrate compliance with the independent laboratory requirement of 67 Pa.Code § 77.24(d), and that Townsend was thus entitled to suppression of the test results.

The Vehicle Code, 75 Pa.C.S. § 101 et seq, provides, in pertinent part:

§ 1547. Chemical testing to determine amount of alcohol or controlled substance
(c) Test results admissible in evidence. — In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
(1) Chemical tests of breath shall be performed on devices approved by the Department of Health using procedures prescribed jointly by regulations of the departments of Health and Transportation. Devices shall have been calibrated and tested for accuracy within a period of time and in a manner specified by regulations of the Departments of Health and Transportation....

75 Pa.C.S. § 1547(c) (emphasis added). The regulations which govern tests for blood alcohol contents, found at 67 Pa.Code § 77.21 et seq., and adopted jointly by the Departments of Health and Transportation, state, in relevant part:

§ 77.24. Breath test procedures.
(b) Procedures. ... Alcohol breath tests, accuracy inspection tests and calibrations conducted using breath test equipment shall be performed in accordance with accepted standard procedures for operation specified by the manufacturer of the equipment or comparable procedures. The procedures for alcohol breath testing shall include, at a minimum:
(2) One simulator test using a simulator solution designed to give a reading of .10%, to be conducted immediately after the second actual alcohol breath test has been completed.... The tests results will be disregarded, and the breath test device will be removed from service ... if one of the following occurs:
(ii) If the simulator test yields a result less than .09% or greater than .10% when the breath test device is read to the second decimal place, or if the simulator test yields a result less than .090% or greater than .109% when the breath test device can be read to the third decimal place.
(d) Simulator solution certification. The manufacturer of simulator solution shall certify to the test user that its simulator solution is of the proper concentration to produce the intended results when used for accuracy inspection tests or for calibrating breath test devices. This certification shall be based on gas chromatographic analysis by a laboratory independent of the manufacturer.

67 Pa.Code § 77.24 (emphasis added).

Relying upon subsection (d), which requires that the laboratory which tests the simulator solution be “independent” of the manufacturer, Townsend argues that the two sections of the Allegheny County Department of Laboratories, which provided the simulator solution for calibration of the breath test equipment used to test him, are not independent within the meaning of this subsection.

In response, the Commonwealth argues initially that compliance with § 77.24(d) is not necessary so long as the Commonwealth follows “accepted standard procedures for operation specified by the manufacturer of the equipment or comparable procedures.” Appellee’s Brief at 3, citing § 77.24(b) (emphasis by Commonwealth). We disagree.

The Commonwealth’s argument fails to recognize that § 77.24(b) goes on to state that “[t]he procedures for alcohol breath testing shall include, at a minimum: ... (2) One simulator test using simulator solution designed to give a reading of .10%, to be conducted immediately after the second actual alcohol breath test has been completed.” Thus, subsection (b) does not make breath tests admissible merely upon compliance with procedures “comparable to those specified by the manufacturer”; the tests must also include a test of simulator solution as directed by § 77.24(b)(2). Moreover, the language of subsection (b)(2) states that “[t]he test results will be disregarded, and the breath test device will be removed from service” if the test of the simulator solution does not yield a result sufficiently close to .10%. Therefore, we reject the Commonwealth’s argument that following procedures that are “comparable to those specified by the manufacturer” alone will guarantee the admissibility of test results regardless of violations of other relevant sections of the regulations.

The Commonwealth also argues that the Environmental Health Section of the Department of Laboratories is independent of the Toxicology Laboratory Section of the Department of Laboratories. At trial, in support of this position, the Commonwealth introduced the testimony of Jerry Richey, an Intoxilyzer technician employed by the Allegheny Department of Laboratories. His testimony was as follows:

Q. Who manufactures the simulator solution that you use to conduct these various tests?
A. In Dr. Winek’s department of Laboratories he has different subdivisions. One of the subdivisions is Environmental Chemistry. The environmental chemist makes my solution and then it is given to a toxicologist who tests it.
Q. Who is it given to again? Who is it given to to test?
A. Toxicologist.
Q. Is that toxicologist associated with your office or Dr. Winek’s office?
A. Yes.
Q. Your testimony was previous that a toxicologist tests the simulator solution?
A. Correct.
Q. Who from Allegheny County Laboratories manufactures it?
A. An environmental chemist.
Q. Now, are these two entities, the toxicologist and chemist a separate facility within the operation of Allegheny County Laboratories?
A. Yes.
Q. To your knowledge, do the toxicologists there manufacture solutions?
A The toxicologist?
Q. Yes.
A. No.
Q. Do the chemists test it?
A. No.

Notes of Testimony, October 16, 1989, at 42, 47.

On cross-examination, Richey testified as follows:

Q. Mr. Richey, you testified that an environmental chemist prepares the solution or tests it?
A. Prepares the solution.
Q. I see. Are these organizations separate entities or are they separate departments or all within the Allegheny Department of Laboratories?
A. All within the Allegheny County Department of Laboratories.
Q. I see. Do they all report to the same ultimate supervisor?
A. Dr. Winek’s the top notch, but the Department of Environmental Chemistry has a boss, also, so does the toxicologists have a lab manager, but they all go back to Dr. Winek.
Q. I see. There is a manager in each subsection and they all report to Dr. Winek?
A. Yes.
Q. What is his title?
A. Dr. Winek is the Director of the Department of Laboratories.
Q. And he is in charge of both the chemists and toxicologists?''
A. Yes.
Q. Does Dr. Winek become involved in the operation of these offices from time to time?
A. I don’t know that. I am not familiar with his duties there.
Q. What about the physical facilities? Are these offices both housed in the same building?
A. Yes.
Q. How big of a building is it?
A. It is a county office building. It is like a square block.
Q. So they’re by no means the only offices within that building?
A. No.
Q. Do they all share the same area of space?
A. No. We are in the sub-basement of the County Office Building and there is different rooms in there and they are in two different areas. It is made in my office, which is manufactured there, and it is taken from my office to the instrument room where it is tested.

N.T. at 48-50. The trial court also inquired in this area:

THE COURT: Is the simulator solution, the manufacturer of that, that is done by one particular person?
THE WITNESS: Yes. It is usually done by the lab manager and if he is not there I have to go to another environmental chemist to make it.
THE COURT: That is manufactured then or prepared by an environmental chemist?
THE WITNESS: True.
THE COURT: Is the analysis or testing of that simulator solution, who is that done by?
THE WITNESS: The toxicologist.
THE COURT: And is he that person, independent of this person that manufactures the simulator solution?
THE WITNESS: True.
THE COURT: That is, neither one has control over the other?
THE WITNESS: True.
THE COURT: And so the person that tests the simulator solution is not subject to any control by the person that manufactured it?
THE WITNESS: True.
THE COURT: And is completely independent?
THE WITNESS: True.

N.T. at 51-52 (emphasis added).

In denying Townsend’s post-trial motions, the trial court quoted and relied upon the portions of Richey’s responses emphasized above. However, after careful consideration, we cannot agree that those portions, or that all of the relevant portions of the transcript taken together, justify the conclusion that the Toxicology Section of the Allegheny County Department of Laboratories is independent of the Environmental Chemistry Section of the same department, within the meaning of 67 Pa.Code § 77.24(d). Instead, we conclude that the Commonwealth failed to overcome its burden of demonstrating compliance with the regulation.

It is clear from Richey’s testimony that the simulator solution is made in one section of the Allegheny Department of Laboratories and tested in another. It is equally clear that, although these two departments are within the same building, they do not share office or laboratory space with each other. Each section has its own manager, and neither section controls the operations of the other section. However, Richey’s testimony also reveals that each section is within the same county department, the Allegheny Department of Laboratories, and that each section manager reports directly to the same supervisor, Dr. Winek, who is “in charge of’ both sections. Finally, we note that Richey testified that he was “not familiar” with Dr. Winek’s duties when asked about Dr. Winek’s involvement with the operation of the two sections. We are compelled to reject the trial court conclusion, based upon Richey’s testimony, that the Toxicology Section of the Allegheny County Department of Laboratories is independent of the Environmental Chemistry Section of the Allegheny County Department of Laboratories within the meaning of 67 Pa.Code § 77.24(d). Richey’s conclusory responses to the trial court’s questions are not sufficient to warrant a different result.

Finally, the Commonwealth contends that a violation of the regulations does not warrant suppression of the test results. The Commonwealth observed that Townsend asserts only a technical violation of a regulation and that Townsend does not assert that the test was inaccurate or that he was denied a “fundamental right.” The Commonwealth contends that the test result was admissible, and that Townsend’s argument as to the simulator solution should only be directed to the weight to be given the evidence, not its admissibility, relying upon Commonwealth v. Shiffler, 373 Pa.Super. 497, 541 A.2d 780 (1988).

In Shiffler, this Court reversed a conviction where the trial court had excluded evidence that the intoxilyzer device on which the defendant had been tested had previously malfunctioned. Our opinion in that case made clear, however, that the defendant’s pre-trial motion to suppress was denied on the basis that it was untimely. At trial, and on appeal, Shiffler contended that the evidence of the device’s malfunctions was nevertheless admissible to challenge the machine’s reliability. We made no ruling regarding the suppressibility of test results in that case; instead, we held that the evidence which Shiffler offered was admissible to challenge the reliability of the breath testing device despite the denial of his motion to suppress and that the trial court had erred by excluding it. Shiffler cannot be relied upon for the proposition that suppression would not have been available had the issue been properly presented to the trial court.

In Commonwealth v. Thill, 417 Pa.Super. 485, 612 A.2d 1043 (1992), also decided today, we considered the suppressibility of test results involving simulator solution which had not been prepared in compliance with § 77.24(d). We held there that the defendant was entitled to suppression of those results. On the basis of that decision, we conclude that Townsend is entitled to suppression of the breath tests as well.

Our disposition of this issue makes it unnecessary to consider the second issue raised.

Judgment of Sentence Reversed; Case Remanded; Jurisdiction Relinquished.

POPOVICH, J. files a dissenting statement in which OLSZEWSKI, J. joins.

POPOVICH, Judge,

dissenting:

I dissent herein for the same reason set forth in my dissenting statement in Commonwealth v. Thill, 417 Pa.Super. 485, 612 A.2d 1043 (1992).

OLSZEWSKI, J. joins.