author: MONTEMURO, Judge:

text:
    476 A.2d 389
    COMMONWEALTH of Pennsylvania v. Gerald Joseph MASON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1983.
    Filed April 13, 1984.
    Petition for Allowance of Appeal Granted Aug. 29, 1984.

      William R. Bernhart, Reading, for appellant.
    J. William Ditter, III, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and HESTER, JJ.
   MONTEMURO, Judge:

Gerald Joseph Mason was convicted by a jury in the Court of Common Pleas of Montgomery County of burglary and criminal mischief. Following the denial of timely post-trial motions, he was sentenced to imprisonment for a term of not less than six (6) years, nor more than twenty (20) years on the burglary conviction. For his conviction of the crime of criminal mischief, he received a sentence of three (3) years probation. He was also ordered to pay the costs of prosecution and to make restitution. This appeal followed.

The intricate and detailed web of circumstantial evidence spun by the prosecution took three (3) days and over three hundred (300) pages of testimony to complete. The effectiveness of this web, ascribable in no small part to the inexorable and exceedingly professional police investigation, is evidenced by the ensnarement of appellant upon the finding of guilt by the jury. A meaningful understanding of the issues briefed and argued by appellant in this appeal, as well as our discussion of those issues, necessitates a summarization of the events which ultimately led to the appellant’s arrest.

THE FACTS

At some time during the early morning hours of April 4th, 1978, a McDonald’s restaurant, located on Route 73 in Douglas Township, Montgomery County, was burglarized. Detective John Crowley, a county detective in the employ of the District Attorney of Montgomery County, arrived at the crime scene at 7:45 A.M. that same morning. His investigation revealed that the restaurant’s safe had been “burnt” or “torched” open. An opening of approximately seven (7) inches in width by ten (10) inches in height had been cut around and completely through the dial of the safe. The detective was able to observe that the safe was charred and that black soot stains appeared on most of the interior walls. The intruders who performed the laser-like surgery on the safe left their victim in complete disarray. Strewn about were numerous papers and a number of rolls of pennies in open-ended wrappers. The coin wrappers were stained with soot and intermittently burnt. The very end coins in the rolls of pennies were stained, charred and blackened. Several plastic cash register drawers, parts of which had melted from the heat of the intruder’s torch, as well as slag balls, were also observed by Crowley’s investigative eyes. The area outside the safe was also, as we shall see, a source of evidence left behind by not-so-clever thieves. A large green pail with water was positioned in front of the safe; they were, after all, burglars — not arsonists. With an uncharacteristic display of concern for tidiness, the miscreants had opened a cardboard box and laid it flat on the floor outside the safe. The cardboard’s surface was observed by Crowley to have numerous shoe or boot prints which in turn contained many small circles running from left to right. All of the evidence, both inside and outside the safe, was confiscated by the detective. Before leaving the scene of the burglary, Detective Crowley broadcast a radio message concerning the burglary, as well as a bank alert notifying numerous banks in the area to be on the lookout for burnt or scorched money, bills or coins.

Prior to Detective Crowley being apprised of the burglary, other events had already taken place; events which would later become part of the web of evidence. At approximately 3:45 A.M. on the morning of April 4th, four hours before Crowley arrived on the scene, a Douglas Township police officer and a truck driver for a dairy farm, observed an automobile pulling onto the highway from a driveway adjacent to the burglarized McDonald’s. The police officer was in his police vehicle and the truck driver was in his truck when they independently made the same observation at about the same time. They both agreed it was a “late model, Lincoln Continental, in the late seventies.” The police officer thought the vehicle was dark brown and the truck driver thought it was black. The milktruck driver remembers that it had a vinyl top; he only saw a driver. The police officer saw a driver and a passenger. As we shall see, at the time of his arrest, appellant owned a 1975 black Lincoln Continental with a vinyl top.

The web continues to spread. On April 5th, 1978, an unidentified blonde woman who styled her hair with a single “pigtail” running from the top of her head down the middle of her back — a coiffure relevant only for its later evidentiary value — entered the American Bank in Temple, Pennsylvania, a suburb of the city of Reading in Berks County. The young woman, whose photograph was later discovered and taken by the police from the appellant’s apartment, exchanged one hundred one dollar bills and one hundred dollars in wrapped quarters and dimes for two one hundred dollar bills. The bank teller, mindful of the bank alert sent out by Detective Crowley the previous day, discerned scorches and burnt edges on several of the one dollar bills and her olfactory sense enabled her to perceive that the money had an unusual odor. The wrappers containing the coins were stamped with appellant’s name and address, i.e., Gerald Mason, 440 Oley Street, Reading, Pa. Detective Crowley was notified of the currency exchange and on the same day, April 5th, he went to the American Bank, interviewed the bank teller, received a description of the young lady who requested the exchange, and confiscated the money as evidence.

On April 6th, 1978, two days after the McDonald’s burglary in Montgomery County, police officer Robert Kopinski of Coal Township in neighboring Northumberland County, was conducting a routine investigation of an open door of a motorcycle shop located on Route 61. No cause for alarm— Officer Kopinski learned that an errant worker had inadvertently left the door open. While inside the motorcycle shop, Officer Kopinski observed a late model car on Route 61 acting in a suspicious manner. Specifically, he observed the vehicle traveling at a slow rate of speed toward the motorcycle shop, then he saw it enter the parking lot of the motorcycle shop, drive out of the parking lot and proceed back up Route 61 from whence it came. Still under the watchful eye of the police officer, the vehicle then turned into the parking lot of a McDonald’s restaurant and in a short while it drove out of the restaurant parking lot, crossed all four lanes of Route 61 and pulled into the parking lot of a closed gas station. The driver of the vehicle got out of the car and ran across the highway toward the closed McDonald’s restaurant.

Officer Kopinski left the motorcycle shop and went to the McDonald’s restaurant. His investigation of the restaurant revealed that the doors had been partially jimmied open. He immediately requested assistance from all other local police departments in the area. A search of the restaurant’s parking lot turned up a bag — Officer Kopinski called it a gym bag — which contained a crow bar, screw drivers and other tools. In the vicinity of the restaurant’s garbage container, the police found a duffel bag containing acetylene torches, a sledge hammer and, in close proximity to the duffel bag, a set of oxygen tanks for the torches; clearly not the kind of equipment used in preparation of the world-famous “big Mac.” A further search of the area failed to turn up the burglars whose unlawful intrusion had been interrupted. Officer Kopinski then sent or had sent a teletype message requesting information on the vehicle still positioned on the gas station lot, dutifully waiting to carry away its owner and McDonald’s restaurant’s money. He soon learned that the vehicle, or one similar to it, was wanted for investigation of a burglary of a McDonald’s restaurant in Goal Township., Montgomery County, and further that it was owned by the appellant.

Officer Kopinski’s fellow officer, Charles Shuey, left him at the restaurant with the restaurant manager who had been summoned to the scene, and crossed the highway to investigate the automobile. He observed that it was a two-door, 1975 black Lincoln Continental with a vinyl top. No one was in the car. The officer noticed that the trunk lid was slightly ajar and aware of the message received by Kopinski concerning the use of a similar car in the Montgomery County burglary, the officer lifted the trunk lid to see if anyone was hiding therein. He observed a small shotgun and what appeared to be a canvass bank bag. Without touching anything, he closed the trunk. The car was ordered to be towed to the Coal Township police station in Northumberland County. As we shall see, the appellant says this investigation of the car, while on the lot of the closed gas station in the early hours of the morning, across the street from the McDonald’s restaurant, where a burglary had been aborted, was illegal.

We move now to the next phase of this early morning drama unfolding on the nearly deserted highways and byways of a rural community whose inhabitants were enjoying a nocturnal slumber never knowing that the peace and dignity of their community had been violated.

Trooper Richard L. Ziminsky, of the Pennsylvania State Police, assigned to the Shamokin Barracks in Northumberland County, went on duty at 6:00 A.M. on the morning of April 6, 1978. He was told to patrol the area south of Shamokin for two possible burglary suspects of the McDonald’s restaurant on Route 61. The trooper began patrolling on Route 61 and entered the driveway of the Northumberland County Democratic headquarters building. The building was situated about 300 yards off the highway in a wooded, secluded area and was located approximately a mile and one-half from the aborted burglary. Appellant will tell us later that the trooper should never have conducted a search of the Democratic headquarters and the area surrounding the building — forget the fact that he was patrolling the area in search of burglary suspects. We, on the other hand, view the trooper’s investigation of the area as a prudent and professional course of police action — but for now, let us rejoin Trooper Ziminsky. As he drove his vehicle toward the closed Democratic headquarters, he saw a man flee from behind the building. He immediately relayed his observation to his desk officer in the barracks, who in turn notified Officer Kopinski, who was still at the scene of the attempted burglary, that the state trooper was at the Democratic headquarters and in the process of apprehending a suspect. The trooper alighted from his vehicle and called three times for the running suspect to stop. After his third command to stop, the trooper observed the suspect attempting to climb a shale bank. Again, he ordered the suspect to stop. Realizing that his voice commands were not producing the desired result, the trooper fired a warning shot with his service revolver. The crackling effect of his explosion which propelled the missile into the approaching dawn caused the fleeing suspect to stop, change direction, and after some mini-gyrations to his right, he finally approached the trooper with his hands in the air. The trooper ordered the suspect to prostrate himself on the ground as the trooper covered him with his revolver. Kopinski, who arrived at the Democratic headquarters at this juncture, secured the man’s hands with handcuffs and took him into custody. Appellant says this police action constituted an arrest. We agree. With characteristic gall, he says it was an arrest without probable cause.

A further search of the area in the immediate vicinity of the Democratic headquarters was conducted and appellant’s accomplice, Rico Kelino, was found hiding behind a pillar. He was pointing a gun at the officers but responded affirmatively to the state trooper’s command to drop the gun and surrender with his hands in the air. He, too, was taken into custody by Officer Kopinski. Both appellant and his accomplice were given their Miranda rights by Kopinski when they were taken into custody.

By way of pertinent aside, we should mention two other happenings which have at least tangential relevance to this case. First, Officer Kopinski said that at about 5:30 A.M. —a half hour before the state trooper began his tour of duty — he was in the Coal Township police station assembling all of the evidence he had gathered from the scene of the attempted break-in of the McDonald’s restaurant. While there, he received a telephone call from a woman who lived between the restaurant and the Democratic headquarters. The woman told him she had seen two men attempting to break into a car. Secondly, both Officer Kopinski and Trooper Ziminsky said they observed that a window at the rear of the Democratic headquarters building had been broken and a telephone was seen hanging from the window.

Following a slight intermission, the final act in this drama begins. The police in Coal Township, Northumberland County, informed Detective Crowley of Montgomery County that they had arrested appellant and Kelino for the attempted burglary of the McDonald’s restaurant in their county. Detective Crowley arrived at the Coal Township police station at approximately 9:00 A.M. that same morning, April 6, where he saw, for the first time, appellant and Kelino. He identified himself, read them their Miranda rights and informed them he wanted to question them about the burglary of the McDonald’s restaurant in Douglas Township, Montgomery County, on April 4, 1978. They gave Crowley their names and said they both lived at 440 Oley Street in Reading, Berks County. That was as much as they would say.

Appellant’s vehicle had been towed to the Coal Township police station. While Crowley was at the police station, he observed a search of appellant’s car made pursuant to a search warrant prepared and executed by the police of Coal Township. As a consequence of that search the following items were seized from appellant’s vehicle: a sawed-off Remington .12 gauge pump-action shotgun, two tanks for cutting or welding, approximately six (6) pairs of work gloves, a %" Black and Decker drill and the appellant’s owner’s card. The ever-alert Detective Crowley also observed that the jacket Kelino was wearing had numerous small burnholes down the front and on one arm of the jacket. He also saw various denominations of paper currency totalling nine hundred ten dollars ($910.00) and, of that, a twenty dollar ($20.00) bill and a five dollar ($5.00) bill were singed or scorched. This money had been taken from Kelino by the Coal Township police. Crowley then made an even more important and startling observation — a catastrophe for appellant; the sole of one of appellant’s boots had a pattern which appeared to be identical to the pattern impression he had seen on the piece of cardboard in front of the burglarized safe at McDonald’s restaurant in Montgomery County. He asked appellant to remove his boots but appellant refused. Crowley then told police officer Richard Higgins of Coal Township, who by this time had assumed charge of the attempted burglary in Northumberland County, of the similarity of pattern. Higgins told Crowley that they also had footprints in the area of the attempted burglary. Chief Weaver of the Coal Township police directed one of his officers to remove appellant’s boots. Mission accomplished.

That same morning, April 6th, Detective Crowley prepared a search warrant for appellant’s apartment, 440 Oley Street in Reading, Berks County, setting forth in the probable cause section of the warrant essentially all of the facts as we have attempted to describe them to this point. The warrant was issued by District Justice George Graeff in Reading, Berks County, and at 5:20 P.M. on April 6th, 1978, Crowley, Chief Hummel and Sergeant Stofflet, all law enforcement officers of Montgomery County, conducted a search of appellant’s apartment. They were accompanied by Detective Loren Young and Officer Wright of the Reading Police Department. As a consequence of that search, the following items were removed from appellant’s apartment: a rubber stamp that left an impression of appellant’s name and address; a photograph of two young white women standing on either side of a mounted trophy fish, one of the women wearing her blonde hair styled in a pigtail; a grey metal cash box found under appellant’s bed which contained numerous coin wrappers and coins; and a one-gallon metal bucket that contained twelve (12) rolls of wrapped pennies. Crowley observed that some of the coins had black stained surfaces. At the suppression hearing, Detective Crowley testified on direct examination that the Reading police officers did not participate in the search, although they were inside the apartment. Appellant will later argue that since Crowley, a Montgomery County Detective, had no authority to conduct a search of appellant’s apartment in Berks County, the search was illegal and the items seized should have been suppressed.

On April 8th, 1978, four days after the burglary of the McDonald’s restaurant in Douglas Township, Montgomery County, Detective Crowley went to the Northumberland County Prison and executed properly issued warrants of arrest upon appellant and Rico Kelino. They were both informed of their Miranda rights and told they were being arrested for the burglary of the McDonald’s restaurant in Montgomery County, which occurred on April 4th, 1978.

At trial, in addition to all that we have related so far, the jury would also hear the testimony of the bank teller and three agents from the Federal Bureau of Investigation. The bank teller testified that the young blonde woman in the photograph taken from appellant’s apartment was the same young lady who had exchanged the currency in the American Bank on April 5th, 1978. The F.B.I. agents would offer testimony concerning the rubber stamp and coins found in appellant’s apartment as well as testimony concerning appellant’s boots and the impressions left on the cardboard.

With all of this evidence, albeit circumstantial, the jury understandably found appellant guilty of the crimes charged.

DISCUSSION

Appellant alleges certain claims of error, some made at the suppression hearing and others made at trial, which are completely devoid of merit, unsupported by the record, adequately disposed of in the opinion of the lower court, and deserving of no further discussion. They are:

1. That the trial judge erred in refusing to grant a motion for a mistrial and in allowing evidence showing unrelated crimes in other counties;

2. That the trial judge erred in his instructions to the jury concerning reasonable doubt and presumption of innocence;

3. That the trial judge erred in his charge in the manner of reviewing the evidence and in regard to the instructions concerning circumstantial evidence;

4. That the search of the appellant’s vehicle both with and without a search warrant was illegal and without probable cause; and

5. That the trial judge erred by instructing the jury that because the appellant did not testify, no adverse inference could be taken therefrom. See, Commonwealth v. Butch, 257 Pa.Super. 242, 390 A.2d 803 (1978); 42 Pa.C.S.A. § 5941.

We shall now address appellant’s remaining contentions.

Appellant initially claims that the suppression hearing judge, the Honorable Mason Avrigan, committed error in failing to make findings of fact and conclusions of law. We have reviewed appellant’s motion for new trial and/or arrest of judgment and find no objection predicated on this claim. Under those circumstances, the claim has been waived and will not be considered. See Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Pa.R.A.P. 302(a); Pa.R.Crim.P. 1123(a).

Appellant’s next claim of error which merits discussion is that the seizure of his boots while he was in custody in Northumberland County was illegal for two reasons: (1) there was no probable cause for the arrest of the appellant to render the seizure of his boots incident to a lawful arrest; (2) the seizure of the boots without a warrant for use as evidence of another crime in Montgomery County was an illegal search in violation of the appellant’s 4th Amendment rights. (Appellant’s brief at 13). Therefore, according to appellant, the suppression court committed reversable error in refusing to grant his suppression motion concerning the boots. We do not agree.

In Commonwealth v. O’Bryant, 479 Pa. 534, 437, 388 A.2d 1059, 1061 (1978), the supreme court set forth the scope of appellate review in suppression motion denials:

On appeal from denial of a suppression motion, the court must consider only the evidence presented by the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. (Citations omitted). Where the suppression court’s findings have ample support in the record, they may not be disturbed on appeal.

The first prong of appellant’s argument concerning the seizure of his boots, i.e., lack of probable cause to arrest, is ludicrous. In Commonwealth v. Allen, 287 Pa. Super. 88, 429 A.2d 1113 (1981), we set forth the standards applicable to an arrest based on probable cause:

A legal arrest without a warrant depends upon probable cause. Commonwealth v. Pinney, 474 Pa. 210, 378 A.2d 293 (1977); Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967), cert. denied, 389 U.S. 875, 88 S.Ct. 168, 19 L.Ed.2d 159 (1967). Probable cause exists if the facts and circumstances which are within the knowledge of the police at the time of arrest, and of which they have reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that a suspect has committed or is committing a crime. Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979); Commonwealth v. Culmer, 463 Pa. 189, 195, 344 A.2d 487, 490 (1975); Commonwealth v. Jones, 457 Pa. 423, 428, 322 A.2d 119, 123 (1974); Commonwealth v. Garvin, 448 Pa. 258, 262, 293 A.2d 33, 35-36 (1972); Commonwealth v. Bishop, supra. The burden of showing probable cause is on the Commonwealth. Commonwealth v. Holton, 432 Pa. 11, 14-15, 247 A.2d 228, 230 (1968). The standard of probable cause, however, must be applied to the totality of the circumstances facing the police. Facts insufficient to justify an arrest if considered separately may in combination supply probable cause. Commonwealth v. Roscioli, 240 Pa.Super. 135, 138, 361 A.2d 834, 836 (1976). In Commonwealth v. Tolbert, 235 Pa.Super. 227, at p. 230, 341 A.2d 198, at p. 200 (1975), this court said ‘When we examine a particular situation to determine if probable cause exists, we consider all factors and their total effect, and do not concentrate on each individual element. . . . We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might.... Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond-a-reasonable-doubt’ standard which we apply in determining guilt or innocence at trial. Commonwealth v. Devlin, 221 Pa.Super. 175, 289 A.2d 237 (1972).

Id., 287 Pa.Super. at 102, 429 A.2d at 1119-1120 (quoting Commonwealth v. Kazior, 269 Pa.Super. 518, 523-25, 410 A.2d 822, 824-25 (1979), allocatur denied (1980)).

When we apply these principles to the facts of this case as we have set them forth in the first part of this opinion, it is clear that Trooper Ziminsky and/or Officer Kopinski had more than probable cause to arrest appellant and his accomplice, Kelino.

The second prong of appellant’s argument is that even if there was probable cause to arrest, it was improper for Detective Crowley of Montgomery County to seize his boots while he was in custody in Northumberland County and then use the boots as evidence in the trial of the case sub judice in Montgomery County. In support of this argument, the appellant relies upon Commonwealth v. Little, 9 D. & C.3d 590 (1977), affirmed per curiam by this court at 268 Pa.Super. 590, 394 A.2d 611 (1978).

A cursory reading of Little, id., might lead one to conclude it is remarkably similar to the case before us; however, on close analysis, we are convinced it is inapposite. In Little, Trooper George Murch, a criminal investigator for the Pennsylvania State Police, went to the West Goshen Township police station to investigate any connection Little may have had with a burglary that had occurred the day before. At the time, Little was incarcerated on a totally different charge. Trooper March advised him of his constitutional rights against self-incrimination, which he indicated he understood. The trooper then directed him to take off his boots, explaining that he wanted to take a boot print to see if Little’s boot print matched one found at the scene of the burglary the trooper was investigating. At the time the trooper was collecting the boot print, the only evidence available to the State Police concerning Little’s involvement in the burglary was that his car had been seen several times in the immediate vicinity where the burglary occurred. When this investigation was being conducted by Trooper Murch, Little had not been placed under arrest for the burglary charge — he was in police custody as a result of having been arrested on another charge.

The trial judge, the Honorable Dominic T. Marrone, President Judge of the Court of Common Pleas of Chester County, observed that “in fact, the record of testimony from the suppression hearing suggests that Trooper March was taking the boot print from defendant in an effort to establish probable cause for defendant’s arrest on the burglary charge.” Id., 268 Pa.Superior Ct. at 591, 394 A.2d 611. Judge Marrone, in a well-reasoned opinion, held that the obtaining of the boot was a search, that the search was not incident to a lawful arrest and was not conducted pursuant to a warrant. Consequently, the warrantless search was unreasonable and the evidence was suppressed. As stated, this court then affirmed.

However, in the case before us, we have already found that appellant’s boots were seized while he was in lawful custody of the police following his valid arrest with probable cause for the attempted burglary of the McDonald’s restaurant in Northumberland County. More importantly, and contrary to what appellant says, his boots were taken not by Detective Crowley of Montgomery County, but rather by police officers of Northumberland County to be used in connection with the investigation of the attempted burglary in Northumberland County, for which appellant had been legally arrested with probable cause. Police officer Richard Higgins of the Coal Township police, Northumberland County, testified at the suppression hearing as follows:

Q. Were you with Detective Crowley of Montgomery County Detectives on that morning?
A. Yes, sir..
Q. What time did you see him?
A. I would say approximately 10:00 A.M.
Q. Now, would you tell us what Mr. Mason was wearing on his feet at that time.
A. He had a pair of, what I would call working or hiking boots, heavy boots.
Q. What happened to those hiking boots or working boots?
A. They were seized by our Department.
Q. What did you do with the boots?
A. The boots were removed from Mr. Mason by one of our officers and then turned over to me and I tagged them and they were placed in the Evidence Room, along with other items.
Q. Would you tell us how the boots were taken from Mr. Mason?
A. One of our officers unlaced them and removed them.
Q. Prior to that, would you tell us what occurred as far as Detective Crowley, your Chief Weaver and yourself were concerned?
A. Detective Crowley arrived at the station and I was introduced to him. I had a brief conversation with him and then I had a phone conversation with another gentleman which occupied some of my time. When I came out in the hallway Detective Crowley and the Chief were there in the hallway and the Chief said to me that Detective Crowley had interest in these boots that Mr. Mason had on. I told the Chief that, I felt as if it was possible, being that the sole mark was such an odd variety, that we could possibly find some footprints of our own and make our case that much better, and I felt as if we, as the arresting officers, should seize the shoes and hold them.
Q. What happened after that discussion?
A. Then we went back into the room where Mr. Mason was at that time, and the boots were removed.
Q. Do you remember the officer’s name who removed the boots?
A. Officer Waugh.
Q. As part of your investigation, did you go back to McDonald’s and look for footprints?
A. I did not, sir.
Q. Did some other person?
A. Yes, sir.
Q. Who was that?
A. Officer Kopinski.
Q. Do you know if he found any footprints?
A. Yes, sir, there were footprints found. In fact, we took photographs of them.
Q. Who took the photographs?
A. David Howard (phonetic), he is our photographer. (N.T. Suppression Hearing, pp. 90, 91, 92) (Emphasis supplied)

As the testimony of Officer Higgins indicates, not only were appellant’s boots seized as possible evidence in connection with the attempted burglary for which appellant was arrested, but further, that the Coal Township police in furtherance of their investigation, had in fact found footprints at the crime scene and made photographs of these prints.

The law is clear that where a defendant is in lawful custody of police as a result of a lawful arrest, as the appellant was, the police are entitled to seize articles of clothing from the defendant which might possibly be used as evidence. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); Commonwealth v. Daniels, 474 Pa. 173, 377 A.2d 1376 (1977); Commonwealth v. Hrynkow, 457 Pa. 529, 330 A.2d 858 (1974).

Although our research on this issue has failed to disclose a case directly on point, and none has been cited to us by either counsel or the lower court, we hold that the suppression court committed no error in refusing to suppress the use of appellant’s boots where, as here, they were lawfully seized by the police in Northumberland County as evidence of a crime committed in that county and subsequently turned over to Detective Crowley for use as evidence in another unrelated crime in a sister jurisdiction — in this case, Montgomery County. We should also say at this point that Detective Crowley testified that he first saw appellant’s boots in the Coal Township police station in Northumberland County on April 6th, 1978, and did not see them again until September 13th, 1978. (N.T. Trial pp. 118, 119).

Appellant’s final arguments implicate the search of his apartment located at 440 Oley Street, in the city of Reading, Berks County, by Detective John Crowley, who as we have indicated was a county detective in the employ of the District Attorney of Montgomery County.

Preliminarily, we dismiss as being completely without merit appellant’s argument that the search warrant was obtained without sufficient probable cause on the face of the affidavit. We note further that appellant makes this bald assertion without comment.

Appellant claims that because Detective Crowley had no authority to act in Berks County, he could neither act as the affiant on the search warrant obtained in Berks County, nor could he execute that warrant by conducting the search of appellant’s apartment.

The Commonwealth-appellee first argues that Detective Crowley did have authority to obtain the search warrant and second, because there was authority to obtain the warrant, appellant should be precluded from attempting to distinguish the execution of the warrant in the presence of Reading police officers from the obtaining of the warrant. By way of further argument, Commonwealth-appellee states that Pa.R.Crim.P. 2004 which reads “a search warrant shall be served by a law enforcement officer” is vague as to who may serve the warrant and even assuming the warrant must be served by officers of that jurisdiction, i.e., officers with authority to act in the city of Reading, the fact that the Reading police officers were present at the scene and had supervisory authority over the search and could protect their citizens from a search beyond the scope of the warrant, was enough to make the execution of the warrant legal.

We agree with Commonwealth-appellee that the first prong of appellant’s argument which claims that the warrant was improperly issued to Detective Crowley because he had no authority to obtain a search warrant in Berks County is devoid of merit.

In Commonwealth v. Kunkel, 268 Pa.Super. 299, 408 A.2d 475 (1979) this court, in an opinion authored by Spaeth, J. decided that:

No statute or rule of criminal procedure requires that a search warrant be issued only to a person empowered to execute it. Indeed, the Rules of Criminal Procedure indicate that the contrary is true. Under Pa.R.Crim.P. 2006, any individual may be the affiant for a search warrant.

Id., 268 Pa.Super. at 303, 408 A.2d at 477 (1979). We hold, therefore, that Detective Crowley was a proper affiant on the search warrant and had the authority to obtain it.

Essential to our analysis of whether Detective Crowley had the authority to execute the search warrant, are certain facts which are not in dispute:

1. Detective John Crowley was at all times relevant herein a county detective in the employ of the District Attorney of Montgomery County;

2. Appellant’s apartment which was the subject of the search warrant is located in the city of Reading, Berks County;

3. The warrant was issued to Detective Crowley by District Justice George Graeff of the city of Reading;

4. The affiant as to probable cause was Detective Crowley;

5. The search of appellant’s apartment, that is to say, the execution of the warrant, was conducted by Detective Crowley with assistance from Chief Hummel and Officer Clinton Stofflet of Douglas Township, Montgomery County;

6. Two police officers from the city of Reading, Detective Loren Young and Officer Wright, accompanied the officers from Montgomery County, and although they were present in appellant’s apartment when the warrant was executed, they did not participate in the search; and

7. The Return and Inventory of the items seized from appellant’s apartment was prepared and signed by Detective Crowley.

The facts in Commonwealth v. Kwnkle, id., were stated in the opinion to be as follows:

In September 1975, Sergeant Freedman and Officer Martin of the Ross Township Police Department in Allegheny County received information that a lottery was being conducted at a certain residence in Shaler Township. After an investigation, the officers appeared before a magistrate whose jurisdiction included Shaler Township, and applied for a search warrant. The magistrate issued the warrant, and the officers informed the Shaler Township Police Department of the pending search. Allegedly, the officers from the Shaler Township Police Department accompanied Freedman and Martin when the warrant was served and executed. Evidence of gambling operations was discovered, and appellees were arrested and charged with gambling, poolselling, bookmaking and related offenses.

Id. 268 Pa.Super. at 300-301, 408 A.2d at 475.

The appellees filed a motion to suppress the evidence alleging, among other things, that the warrant was defective for having been issued to police officers who were acting beyond their jurisdiction. The lower court agreed and suppressed the evidence. The Commonwealth appealed and as we have stated supra, this court overruled the lower court and held that the warrant could be issued to the non-jurisdictional police officers. Contrary to what appellant says, that was the only dispositive holding by this court in Kunkle. As a matter of fact, the matter was remanded to the lower court for another suppression hearing on appellee’s remaining claims — one of which was that the Kunkle evidence should be suppressed because the warrant was executed by Freedman and Martin, the non-jurisdictional police. Judge Spaeth noted in Kunkel, id., 268 Pa.Super. at 302-303 n. 4, 408 A.2d at 476 n. 4, that “[w]e are not faced on this appeal with the issue of whether Freedman and Martin could legally participate in the service and execution of the search warrant by Shaler Township police officers, and if so, the extent to which they could legally participate. The lower court terminated the taking of testimony once it learned that Freedman and Martin were Ross Township police officers who had been issued a search warrant for a residence in Shaler Township. Thus, the record does not show how the warrant was executed; more specifically, it does not show whether Freedman and Martin merely accompanied the Shaler Township police to the searched premises; whether they were the ones who actually served and executed the warrant while the Shaler Township police merely observed; or whether their participation fell between these extremes.” (Emphasis added).

Thus, it is for us to decide whether a search warrant may legally be executed by non-jurisdictional police or, stated another way, must the officer executing the warrant have the authority to act as an officer where the warrant is executed. We have found no case in Pennsylvania or in any of our sister states squarely on point.

It is axiomatic that absent a grant of authority from the Legislature, a law enforcement officer has no authority to arrest, with or without a warrant, outside his own municipal authority. Commonwealth v. Silvers, 286 Pa.Super. 161, 428 A.2d 622 (1981); Commonwealth v. Bable, 254 Pa.Super. 72, 385 A.2d 530 (1978); Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977); Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Fiume, 292 Pa.Super. 54, 436 A.2d 1001 (1981); Commonwealth v. Troutman, 223 Pa.Super. 509, 302 A.2d 430 (1973).

Here, our immediate concern is not with the validity of an extraterritorial arrest but rather with the validity of the extraterritorial service of a search warrant. More specifically, should the rule be different when, as here, the execution of a search warrant is made by police in a jurisdiction where, although they have no power to act, they are accompanied by jurisdictional police who do have authority to act but do not participate in the search? As we have already indicated, we have found no cases in Pennsylvania on this point. There have been decisions in other jurisdictions which, while not on all fours, are instructive.

In the earliest case we have found, Irwin v. State, 147 Tex.Cr.R. 6, 177 S.W.2d 970 (1944) appellant was convicted of operating a policy game. As a result of a search of appellant’s automobile and residence, evidence material to the state’s case and incriminating the appellant with the offense charged was obtained and used by the state at trial. The search warrant was addressed to the “Sheriff or any constable of Harris County.” The officers executing the search warrant and making the search were all police officers of the city of Houston. The officers’ return upon the search warrant, showing the result of the search, was made by Houston police.

Among objections to the introduction of such testimony, it was urged that the officers (from the city of Houston) executing the search warrants and making the searches (in Harris County) were not authorized to do so, and that, as a consequence, the searches were illegal.

The state contended that since two of the Houston police officers conducting the search carried commissions as Special Deputies Sheriff of Harris County, they were at least officers de facto of Harris County; consequently, their acts as officers were not subject to collateral attack.

Since it was never seriously contended that the two officers were de jure officers of Harris County, the sole issue was whether they were de facto officers. The Texas Court of Appeals held they were not deputies sheriff de facto of Harris County; therefore, their acts as such officers were void and of no binding effect. The court said:

There is no question but that if the two named officers, or either of them, were deputies sheriff de jure or de facto, the search, in so far as the authority of the officers executing the search warrants was concerned, was legal. It is immaterial whether others unauthorized to execute the warrants were present and assisted in the searches under the direction of the deputies sheriff.
In order for the searches to be legal, Officers Eubanks and Martindate, or either of them, were required to be deputies sheriff, because they could not have executed the warrants or made the searches thereunder, as policemen, outside the limits of the City of Houston, their territorial jurisdiction as policemen being restricted to the confines of that city, (citations omitted).

Id. 147 Tex.Cr.R. at 9-10, 177 S.W.2d at 972-73. The conviction was reversed.

There appears to be general agreement in the reported cases that where the search is conducted by jurisdictional police, the evidence seized will not be suppressed where non-jurisdictional police assist and participate in the search. See: Keen v. State, 626 S.W.2d 309 (Tex.Cr.1981); State v. Cosgrove, 181 Conn. 562, 436 A.2d 33 (1980); State v. LeMatty, 121 Ariz. 333, 590 P.2d 449 (1979); State v. Wise, 90 N.M. 659, 567 P.2d 970 (1977); Reynolds v. State, 506 S.W.2d 864 (Tex.Cr.App.1974); Kirby v. Beto, 426 F.2d 258 (C.A.5, 1970); People v. Law, 55 Misc.2d 1075, 287 N.Y.S.2d 565 (1968); People v. Daily, 157 Cal.App.2d 649, 321 P.2d 469 (1958); Seay v. State, 93 Okl.Cr. 372, 228 P.2d 665 (1951).

Although dicta, we find Judge Spaeth’s reasoning in Commonwealth v. Kunkel, supra, 268 Pa.Super. at 302-303, 408 A.2d at 476 (1979); most persuasive. He said that since the officers serving the warrant had no official powers outside their own jurisdiction, the service was illegal under Pa.R.Crim.P. 2004. He went on to say that “although Rule 2004 stated somewhat ambiguously, that ‘a search warrant shall be served by a law enforcement officer’, the rule assumes, we believe, that the officer serving the warrant has authority to act as an officer at the place where the warrant is served, not at some other place.”

We now hold that, just as in cases of arrest, unless there is a grant of authority from the Legislature, a law enforcement officer has no authority to execute a search warrant outside his own territorial jurisdiction. We also hold a search will not be violative of Rule 2004 where the non-jurisdictional police (who have no authority to act) are accompanied by jurisdictional police (with authority to act) who participate in the making and execution of the search, regardless of the degree of participation of the jurisdictional police. A search warrant is “executed” or “served” by making and conducting a search. Obviously, there can be no “execution” by police officers who do not participate in the search.

Since the Montgomery County police had no authority to conduct a search of appellant’s apartment in the city of Reading, Berks County, and since the Reading police officers who accompanied the Montgomery police did not participate in the search, the search was illegal.

The introduction of evidence seized in appellant’s apartment, which was material to the Commonwealth’s case and incriminatory of appellant relative to the offense for which he was tried, was obtained by an illegal search of his apartment.

It follows, therefore, that the judgment of sentence is reversed and the case is remanded for a new trial.

Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 3502(a).

      . 18 Pa.C.S.A. § 3304.

      . Appellant's accomplice, Rico Kelino, apparently was a fugitive from justice and his case was severed from appellant’s.

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

      . Because of the retirement of the trial judge, the Honorable Robert Honeyman, the opinion per Pa.R.A.P. 1925, was authored by the Honorable Richard S. Lowe, President Judge of the Court of Common Pleas of Montgomery County.

      . On this issue, see Commonwealth v. Bosworth, 310 Pa.Super. 378, 456 A.2d 661 (1983), an opinion of this court authored by the Honorable Donald A. Wieand. The court held that the defendant Bosworth, who parked his vehicle on property of another in violation of posted "no trespassing” signs, did not have a reasonable expectation of privacy with respect to stolen property stored in the trunk of his vehicle from which he had allowed keys to remain dangling while he committed a burglary. We would apply the same reasoning here where appellant left his vehicle on the private property of another, namely, the gas station, in the early morning hours when the gas station was closed and then left his vehicle unattended with the trunk partially open only to disappear after running across the four lane highway.

      . This claim is based on Pa.R.Crim.P. 323(i) which reads: "At the conclusion of the hearing, the Judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights, or in violation of the rules or any statute, and shall make an order granting or denying the relief requested.”
      Even if we were to find that there was no waiver of this claim, we still would not, on this claim alone, vacate the judgment of sentence and remand for a new suppression hearing. At the conclusion of the suppression hearing wherein the Commonwealth presented five (5) witnesses, beginning on p. 100 of the notes of testimony and ending on p. 121, the court and counsel for the appellant engaged in a colloquy wherein the court heard counsel’s arguments with reference to the legality of appellant’s arrest, the seizure of appellant’s boots, the search of appellant’s automobile, the search of appellant's apartment, the legality of the search warrant for appellant’s apartment and the legality of the inventory and receipt of the items seized from the apartment. As to each and every argument the court made a ruling and stated its reasons. Although not set forth in separate findings of fact and conclusions of law, we find under the facts of this case sufficient compliance with 323(i). Finally, we would hold, in any event, that non-compliance with 323(i) in this case was harmless error beyond a reasonable doubt. Cf. Commonwealth v. Williams, 323 Pa.Super. 512, 470 A.2d 1376 (1984).

      . We note that Little, supra, was decided by this court in a bench per curiam without opinion.

      . Judge Marrone properly pointed out that "unlike Commonwealth v. Daniels, 474 Pa. 173, 377 A.2d 1376 (1977), and Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974), where, after a lawful arrest, articles of clothing were taken from the person of an individual for later use at trial to prove the identity of the accused, the seizure of the boot in the instant matter was not incident to a lawful arrest. The police were attempting to justify an arrest based on what they hoped to be able to conclude upon taking the evidence of the boot print.” Id., 268 Pa.Superior Ct. at 592, 394 A.2d 611.

      . In rejecting appellant’s claim of error on the use of his boots as evidence, we have no way of knowing what the analysis of the boot prints was in Northumberland County or if they were ever used as evidence in that case — nor do we believe any of that information is relevant to our disposition of this issue.

      . The comment to Pa.R.Crim.P. 2004 says that "no specific person need be designated in the warrant. However, only a law enforcement officer can properly serve a search warrant.”

      . Now the President Judge of the Superior Court.

      . The Commonwealth-appellee’s argument that because Reading police officers were present in the apartment, they had supervisory authority over the search and could protect their citizens from a search beyond the scope of the warrant, has absolutely no support in the record. The Reading police officers, who were present in appellant’s apartment during the search, never testified and in fact their names are mentioned on just one occasion during this entire trial. (See N.T. Suppression Hearing, p. 32). For all we know, they may have been reading the newspaper, watching television or just talking about the weather. What we do know is that they did not participate in the search. (N.T. Suppression Hearing, p. 32).

      . (footnote omitted)

      . The lower court found that Shaler Township police did in fact accompany Freedman and Martin. However, the suppression hearing record is silent on this point, except for an assertion by the district attorney during argument. N.T. at 7, 28.

      . Our research fails to disclose what happened on remand. The case never again appeared in this court.

      . See: Act of March 3, 1860, P.L. 427, § 3, as amended, May 2, 1899, P.L. 73, § 1, 19 P.S. § 3 (Supp. 1976-1977). (This Act authorizes the arrest with warrant by non-jurisdictional police in those situations where the proper issuing authority in governmental unit A in this Commonwealth issued a valid warrant of arrest to police authorized to act in governmental unit A for an offense committed therein and thereafter the person against whom the warrant is directed escapes, goes into, resides in, or is in any other governmental unit in this Commonwealth); Act of August 6, 1963, P.L. 511, No. 267. (This Act authorized police in pursuit of felons to arrest, with or without a warrant, beyond the territorial limits of the political subdivision in which the felony occurred); the Act of November 2, 1973, P.L. 330, No. 109. (This Act amended the Act of 1963, id., to include, in addition to felonies, misdemeanors or summary offenses); Act of July 9, 1976, P.L. 791, No. 142, Chapter 89, Commencement of Proceeding, Subchapter A, General Provisions, 42 Pa.C.S.A. § 8901. (This chapter and section is essentially a rewrite of the Act of November 2, 1973, supra); the Act of June 15, 1982, P.L. 512, No. 141, § 4, 42 Pa.C.S.A. § 8953(a) et seq., Statewide Municipal Police Jurisdiction. (Interestingly, although not applicable at the time of appellant’s arrest, this Act specifically repealed the Act of July 9, 1976, supra, and for the first time in this entire matter of municipal police jurisdiction, a provision is made for the extraterritorial service of a search warrant as well as an arrest warrant. See 42 Pa.C.S.A. § 8953(a)(1)(4). Clearly, the statewide jurisdiction of municipal police is substantially increased by this 1982 legislation.)

      . The Arizona State Legislature had already withdrawn former territorial limitation of authority and provided that search warrants could be served by officers without reference to territorial jurisdiction.

      . Since we have found the search of appellant’s apartment to be illegal, his remaining claim of trial error in allowing, over objection, "expert” testimony as to the items seized in the apartment, is now rendered moot.


source: Caselaw Access Project

author: JOHNSON, Judge: POPOVICH, Judge,

license: Public Domain

text:
    476 A.2d 403
    COMMONWEALTH of Pennsylvania v. Thomas Gregory VECCHIONE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1983.
    Filed April 13, 1984.
    Reargument Denied June 25, 1984.
    Petition for Allowance of Appeal Denied Oct. 30, 1984.

      Alan Ellis, Philadelphia, for appellant.
    Joseph H. Kleinfelter, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

This is an appeal from judgment of sentence imposed upon appellant, Thomas G. Vecchione, for being convicted of possession of controlled substances with the intent to deliver. After timely post-trial motions were filed and denied, appellant was sentenced to ten (10) to twenty-three (23) months in Dauphin County Prison, to pay a fine of $10,000 and to pay the costs of prosecution. This appeal was taken.

The incident that is the subject of this appeal began on January 7, 1981 when appellant’s flight to Philadelphia from State College, Pennsylvania landed for an interim stopover in Harrisburg, Pennsylvania. The pilot made an announcement over the internal intercom of the plane that passengers proceeding to Philadelphia had to disembark with their hand-carried articles and undergo security screening since proper screening procedures were not available in State College. While handing the passengers their hand-carried articles, the pilot twice refused appellant permission to leave his suitcase on the plane. As the pilot lead the passengers to the screening area, he noticed appellant walk in a direction away from the screening area. After gaining appellant’s attention and learning that appellant wished to place a phone call, the pilot stated that appellant would first have to go through security screening. Appellant then went to the security screening area. He placed his suitcase on the x-ray machine for viewing. The x-ray technician, Susan Stilo, observed an unidentifable mass in appellant’s suitcase. She asked appellant if she could open the suitcase. He refused her permission. Then he grabbed his suitcase and exited the screening area walking briskly.

The police officer on duty at the screening area, Officer David Trott, shouted to appellant to stop; whereupon appellant ran. Other airport police officers pursued appellant on foot outside the terminal. After momentarily being lost from sight, appellant reappeared, walking toward the officers without the suitcase. During a search of the area, the suitcase was found on an embankment near some railroad tracks. Also, a ticket bearing the name “J. Williams” was found on the railroad tracks. Both objects were retrieved and returned to the terminal security office, where appellant had been taken by another officer.

Subsequently, the suitcase was re-examined by x-ray by Officer Trott and other members of the airport police. Members of the Army Explosive Ordinance Disposal detail at Fort Indiantown Gap were summoned and a search warrant was secured by Officer Trott. The suitcase was opened mechanically away from the terminal by the army explosives experts. The suitcase did not contain a bomb, but it did contain one and one-half pounds of marijuana and $20,990.40 in cash. Prior to trial, appellant moved to suppress the marijuana and cash. The suppression court held that appellant voluntarily submitted his suitcase to the search, that the warrant secured was based on adequate facts to support a finding of probable cause, and that the search warrant was surplusage because a warrantless search was permissible since the bag was abandoned.

On appeal, appellant asserts that his rights to a speedy-trial were violated and that the trial court erred in denying his motion to suppress the marijuana and cash seized. We affirm.

The initial issue confronting us is whether appellant should be ordered discharged because his right to speedy trial, pursuant to Pa.R.Crim.P. 1100 was allegedly violated. We do not reach this issue, however, because the claim is not properly preserved for our review.

Section (f) of Rule 1100 states that:

[a]t any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon. Any order granting such application shall dismiss the charges with prejudice and discharge the defendant.

Pa.R.Crim.P. 1100(f), 42 Pa.C.S.A. In Commonwealth v. Davis, 261 Pa.Super. 204, 395 A.2d 1388 (1978), we interpreted this provision of Rule 1100 and said in pertinent part the following:

To establish a Rule 1100 claim, the defendant is obliged to have the lower court rule on its merits prior to trial. Thus, he must ... file a motion under Rule 1100(f) ... so that ... the facts and issues come before the court. Otherwise, his Rule 1100 claim will be waived....

Id., 261 Pa.Superior Ct. at 208, 395 A.2d at 1389-90 (citations omitted); accord Commonwealth v. Singleton, 313 Pa.Super. 224, 459 A.2d 821 (1983); Commonwealth v. McFadden, 300 Pa.Super. 299, 446 A.2d 624 (1982). However, since it is the court, not the clerk of court’s office which must act on the motion to dismiss, the question of filing should be decided on whether or not the motion is properly before the lower court prior to trial not whether or not the motion is docketed in the clerk of court’s office prior to trial. See Commonwealth v. Wharton, 250 Pa.Super. 25, 378 A.2d 434 (1977).

In the instant case, the record certified from the trial court does not contain any motion for dismissal under Rule 1100(f). A review of the certified docket entries does not disclose the filing of such motion. In fact, the only references to such motion occurred immediately before trial when the following occurred:

MR. FOGELNEST [Appellant’s Counsel]: ..., just for the purpose of preserving the record, I have given Mr. Kleinfelter the copy of a motion to dismiss pursuant to Rule 1100. We waive argument on it.
THE COURT: Did Judge Morgan consider that?
MR. KLEINFELTER [Deputy District Attorney]: No. Your Honor. This is the first time that matter has been raised.
The rule did run on July 6, 1981; however, it is the Commonwealth’s position that on each and every appearance before that date and subsequent thereto, the defendant appeared with his counsel, entered a knowing, intelligent, and voluntary waiver of the rule through this date.
MR. FOGELNEST: I have no argument to make to the Court, but because of the Appellate Court’s being the way they are, I would like to make sure that I filed it, Judge.
THE COURT: Surely.
MR. KLEINFELTER: You are waiving the hearing on that?
MR. FOGELNEST: At this point, sure.

N.T., Transcript of Proceedings, December 17, 1981 at 3-4. We have found no other reference to a motion. More importantly, we have not found any order denying the motion or any other proceeding in which the motion was considered, other than during consideration of post-trial motions.

While, as indicated by the passage quoted above, appellant’s counsel displayed concern for preserving a Rule 1100 claim, we do not believe that he has succeeded in doing so. We note initially that the passage quoted above reveals only the statement of appellant’s counsel that a copy of a Rule 1100 motion was given to the deputy district attorney, not that appellant’s counsel preserved the Rule 1100 claim by applying to the trial judge for dismissal of appellant’s charges. See Commonwealth v. Davis, supra. If one is to conclude that a motion to dismiss was brought before the trial judge, it must be implied from appellant’s counsel’s oral statements or it must be inferred from counsel’s use of the word “copy” that the original written motion was given to the trial judge. If indeed a motion was made below, either orally or by presentation of the original unfiled written motion, we conclude that under either alternative appellant’s Rule 1100 claim is not properly before us.

In Commonwealth v. Drake, 489 Pa. 541, 414 A.2d 1023 (1980), our Supreme Court held that an oral motion to dismiss was insufficient to preserve a Rule 1100 claim for review. In interpreting Rule 1100(f) to require a written application for dismissal, the court concluded that this interpretation would provide the trial courts “with specific facts and issues for determination” and provide “certainty in the record on appeal. . . .” Id., 489 Pa. at 544, 414 A.2d at 1024; accord Commonwealth v. Hall, 267 Pa.Super. 204, 406 A.2d 765 (1979). Accordingly, if appellant’s motion to dismiss is viewed as having been derived from his counsel’s oral statements, it would clearly be insufficient under Drake.

If appellant’s counsel presented the court with an unfiled written motion to dismiss, in light of Commonwealth v. Wharton, supra, it is unclear whether this procedure is sufficient to preserve his claim. However, even if we assume arguendo that this procedure is sufficient to bring the motion before the trial court, appellant’s counsel declined to argue his motion indicating that he just wanted to file the motion, and he did not press the motion until a ruling was made by the trial court. Absent a ruling by the trial court, appellant cannot assert that the trial court committed error in not discharging him pursuant to Rule 1100. Cf. 9 Standard Pa.Practice 2d § 56:8 (1982); 75 Am.Jur.2d Trials §§ 173, 176. Since the rules of Criminal Procedure provide that all pretrial motions must be determined prior to trial, Pa.R.Crim.P. 310, and Section (f) of Rule 1100 specifically limits appellant’s ability to raise a speedy trial claim to “any time before trial,” we therefore conclude that appellant’s failure to have the trial court rule on the merits of his Rule 1100 claim prior to trial results in a waiver of his claim. Cf Commonwealth v. Davis, supra; 60 C.J.S. Motions & Orders § 42 (where no ruling appears to have been made on a motion the presumption is, unless it otherwise appears, that the motion was waived or abandoned).

We therefore find that appellant has not properly preserved his Rule 1100 claim for our consideration.

Although appellant has challenged the legality of the search warrant pursuant to which the suitcase was opened and searched, for reasons set forth infra, we hold that the suitcase was abandoned by appellant and consequently the search was permissible irrespective of the validity of the search warrant.

It is hornbook law that abandoned property may be obtained and used for evidentiary purposes without regard to the existence of probable cause or a search warrant. Commonwealth v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1979). The theory of abandonment is predicated upon the clear intent of an individual to relinquish control of the property he possessed. Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976). Personal belongings, such as appellant’s suitcase, “retain their constitutional protection until their owner meaningfully abdicates control or responsibility.” Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973) cert. denied 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). The issue is not abandonment in the strict property right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. Commonwealth v. Shoatz, supra, 469 Pa. at 553, 366 A.2d at 1220 citing U.S. v. Colbert, 474 F.2d 174, 176 (5th Cir.1973). Although abandoned property is admissible evidence, such property may not be utilized where the abandonment is coerced by unlawful police action. Commonwealth v. Harris, 491 Pa. 402, 421 A.2d 199 (1980); Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973).

Appellant does not challenge the lower court’s finding that in leaving his suitcase in the snow on an embankment outside of the airport grounds appellant discarded it in a manner that indicates abandonment. Rather, appellant argues that the initial x-ray of the contents of the suitcase was illegal and that the illegal search ultimately resulted in the abandonment. We must therefore determine whether the initial x-ray search was legal and, if not, whether it was a “causative factor” motivating the abandonment. See Commonwealth v. Jeffries, supra; Commonwealth v. Pollard, supra.

Initially, we note our concurrence with appellant’s conclusion that the x-ray viewing of the contents of carry-on luggage is indeed an intrusion governed by the Fourth Amendment. There exists a reasonable expectation of privacy as to the contents of carry-on luggage. U.S. v. Davis, 482 F.2d 893 (9th Cir.1973). The viewing of the carry-on luggage constituted a warrantless search within the meaning of the Fourth Amendment. U.S. v. Haynie, 637 F.2d 227, 230 (4th Cir.1980). Moreover, searches conducted by airport security personnel are not private searches but governmental searches. U.S. v. Davis, supra. As to the Constitutionality of this search, there have been no less than four separate constitutional justifications advanced by the federal circuit courts and the state courts that have considered the problem. See Weinstock, The Airport Search and the Fourth Amendment: Reconciling Theories and Practices, 7 UCLA-Alaska L.Rev. 307 (1978). While none of the approaches provide an ideal means for squaring the airport security screening procedures with the dictates of the Fourth Amendment, we believe these procedures are an administrative search initiated with the consent of the passenger.

Nondiscriminatory searches of passengers and their carry-on luggage is mandated by the Air Transportation Security Act of 1974, 49 U.S.C. §§ 1356, 1511 and the regulations promulgated pursuant to the Act, 14 C.F.R. parts 108 and 121. The regulations provide that all passengers and carry-on articles must be inspected prior to being allowed on board the aircraft. When a passenger refuses his consent to inspection the airlines must refuse passage to the passenger. Id. § 108.9(b)(1) and (2). Thus the regulatory scheme statutorily conditions the right to passage on an airplane upon “consent” of the passenger to the search of his person and the possessions to be carried aboard the plane.

Although the statutory provisions and regulations do not directly authorize the warrantless search of airport passengers, we nevertheless must conclude that the requirements of search implicit in the statute provisions and regulations must comport with the reasonableness requirement of the Fourth Amendment. As we stated in Commonwealth v. Lapia & Dugger, 311 Pa.Super. 264, 457 A.2d 877 (1983): “The Fourth Amendment of the United States Constitution, as is also so of Article I, Section 8 of the Pennsylvania Constitution, prohibits only ‘unreasonable searches and seizures.’ ” We further stated in Lapia, that “there is no test of reasonableness ‘capable of precise definition or mechanical application’ . . . . [r]ather determining reasonableness involves balancing the intrusion on the individual’s Fourth Amendment rights against the government’s need to conduct the intrusion.” Id., 311 Pa.Superior Ct. at 303, 457 A.2d at 897 (citations omitted).

The reasonableness of the screening search requirement is readily apparent when the need to search is balanced against the intrusion which the search entails. It is, by now, axiomatic that the frequency, dangers, and consequences of highjacking provide a compelling justification for conducting nondiscriminatory screening of passengers. The “preservation of hundreds of lives and millions of dollars worth of private property” is properly a paramount consideration in favor of a search procedure. People v. Hyde, 12 Cal.3d 158, 115 Cal.Rptr. 358, 524 P.2d 830 (1974). We note further that there is not an acceptable way of identifying prospective highjackers from the ordinary air traveler. In weighing the needs for the search against its intrusiveness, it is important to consider that such airport screening searches are now commonplace, and indeed often are perceived by passengers as an indication of safety in air travel. U.S. v. Edwards, 498 F.2d 496, 500 (2nd Cir.1974). Because these types of searches are commonplace and are not selective, there is no social stigma attached to them. People v. Hyde, supra, at 177, 115 Cal.Rptr. at 371, 524 P.2d at 843.

The search contemplated by the regulations is one that is carefully circumscribed, in purpose and intrusiveness, in accordance with the need for the search, i.e., to prevent and deter the carriage aboard airplanes of weapons and explosives. An x-ray scan, as was done in this case, is certainly the least intrusive method of examining the contents hand-luggage. As a prelude to a hand search, it permits a great majority of the passengers to be screened with minimal bother, and eliminates the necessity for a more intrusive hand search. This screening procedure achieves an acceptible degree of safety in airflights and no other has been suggested that is less intrusive which achieves the same or greater results. Moreover, the purpose of the search is not to gather evidence for a criminal investigation, but it is conducted as part of a general regulatory scheme in furtherance of an administrative purpose.

Hence, we conclude that the search contemplated by the regulations comports with the Fourth Amendment requirement of reasonableness.

Consistent with the federal regulations that require the search of all passengers and carry-on luggage, many courts have analyzed airport screening situations under the rubric of consent. We recognize that the conditioning of the right to board the plane upon consent to search prevents the consent to search from being the product of a completely “free and unconstrained choice by the maker.” However, voluntariness of the consent has to reflect an accommodation of the values implicated by the situation. See Schneck loth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Here we have found the predication of the right to air passage upon a search to be reasonable, notwithstanding the fact that it limits a prospective passenger’s prerogatives. As was stated in United States v. Davis, 482 F.2d 893, 913 (9th Cir.1973):

[a] prospective passenger has a choice: he may submit to a search of his person and immediate possessions as a condition to boarding; or he may turn around and leave. If he chooses to proceed, that choice, whether viewed as a relinquishment of an option to leave or an election to submit to the search, is essentially a “consent,” granting the government a license to do what it would otherwise be barred from doing by the Fourth Amendment.

Accord United States v. Henry, 615 F.2d 1223 (9th Cir. 1980); United States v. Haynie, 637 F.2d 227 (4th Cir. 1980); United States v. DeAngelo, 584 F.2d 46 (4th Cir.1978); United States v. Miner, 484 F.2d 1075 (9th Cir.1973); State v. Miller, 110 Ariz. 491, 520 P.2d 1115 (1974).

In the instant case, appellant argues that the initial x-ray search of his carry-on luggage is not supported by his consent. In particular, appellant argues that his consent was involuntary because he was not made aware of his right to refuse the search. We find appellant’s argument to be devoid of merit.

The voluntariness of consent is to be determined by considering the surrounding facts and circumstances of each case. Commonwealth v. Lapia & Dugger, supra, 311 Pa.Superior Ct. at 294, 457 A.2d at 892. Refering to Schneckloth v. Bustamonte, supra, this court reiterated in Lapia that “proof of knowledge of the right to refuse to consent is not a “necessary prerequisite” to demonstrating that consent to search was voluntary. Id., 311 Pa.Superior Ct. at 298, 457 A.2d at 894 (citations omitted). The suppression court concluded that appellant:

voluntarily submitted the bag to x-ray examination. He was informed that the examination was required if he wished to continue on the flight to Philadelphia and at this point he could have walked out of the airport. Prominently posted notice [] was given that he had a right to refuse to x-ray inspection, yet he placed the bag on the conveyer belt and it went through the machine. . . .

Slip op. of Suppression Court at 3. Our examination of the notes of testimony convinces us that these findings are adequately supported by evidence. In accordance with our scope of review in matters of suppression, we are bound by the findings of the suppression court in the instant case since they are adequately supported by the record. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980).

Finding the initial x-ray search to have been valid, we need not determine whether it was a causative factor in the abandonment.

Judgment of sentence is affirmed.

POPOVICH, J., filed a concurring statement.

POPOVICH, Judge,

concurring:

Although I concur in the result reached by the majority, I cannot subscribe to the views expressed therein concerning what constitutes a proper and effective filing of a motion for dismissal under Pa.R.Crim.P. 1100. In my view, there are inconsistencies in the Rules of Criminal Procedure which need to be clarified in regard to the proper and effective filing of such a motion. See, e.g., Pa.R.Crim.P. 9022 commentary (“those rules that provide for filing with the trial court {see, e.g., Pa.R.Crim.P. 321) or the sentencing court {see, e.g., Pa.R.Crim.P. 1410) are not exceptions to the general requirement of this rule that filing be with the clerk of court) and Pa.R.Crim.P. 1100(f) (“At any time before trial, the defendant or his attorney may apply to the court ____). (Emphasis added).

      . 35 P.S. § 780-113(a)(30).

        . Briefly stated, the four approaches that have been utilized are: (1) analogy to border searches; (2) the administrative search; (3) the administrative search predicated on consent approach; and (4) the approach based on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . In pertinent part, Section 1356 states the following:
      § 1356. Screening procedures for passengers; promulgation and amendment of regulations by Administrators; reports to Congress; exempted air transportation operations
      (a) The Administrator shall prescribe or continue in effect reasonable regulations requiring that all passengers and all property intended to be carried in the aircraft cabin in air transportation or intrastate air transportation be screened by weapon-detecting procedures or facilities employed or operated by employees or agents of the air carrier, intrastate air carrier, or foreign air carrier prior to boarding the aircraft for such transportation.

        see also 49 U.S.C. § 1357. Section 1511 states in relevant part:
      § 1511. Authority to refuse transportation; grounds; agreements for carriage of persons or property deemed to include agreements to refuse carriage upon refusal of consent to search
      (a) The Administrator [Secretary of Transportation] shall, by regulation, require any air carrier, intrastate air carrier, or foreign air carrier to refuse to transport—
      (1) any person who does not consent to a search of his person, as prescribed in section 315(a) of this Act [49 USCS § 1356(a) ], to determine whether he is unlawfully carrying a dangerous weapon, explosive, or other destructive substance, or
      (2) any property of any person who does not consent to a search or inspection of such property to determine whether it unlawfully contains a dangerous weapon, explosive, or other destructive substance.

      . The sign stated that: ”[i]nspection of all persons and hand-carried articles entering a security checkpoint is required----” and that “[c]arry-on baggage may be inspected by x-ray.” It also stated that “[i]nspection may be refused. Persons refusing inspection may not proceed beyond this screening point.”

      . We do not address whether consent to x-ray viewing of carry-on luggage may be used to justify a later compelled hand search of carry-on luggage, as the search in the instant case was conducted after the abandonment of appellant’s suitcase.


author: WATKINS, Judge: BROSKY, Judge,

text:
    476 A.2d 411
    COMMONWEALTH of Pennsylvania v. Javier Gabriel PAOLI, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1982.
    Filed April 13, 1984.
    Reargument Denied June 29, 1984.
    Petition for Allowance of Appeal Denied Oct. 3, 1984.

      Edward R. Eidelman, Philadelphia, for appellant.
    Richard R. Tomsho, Assistant District Attorney, Allentown, for Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   WATKINS, Judge:

This case is on appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Lehigh County denying defendant’s postverdict motions in arrest of judgment and for a new trial. The defendant, Javier Gabriel Paoli, was convicted of first-degree murder and sentenced to life imprisonment.

On appeal, the defendant raises numerous issues. He characterizes the question of whether the charge of the court below was contrary to the stated law as the most serious issue. The charge included the court’s opinion that there was no evidence of any of the elements of manslaughter. Counsel objected to the court’s expression of opinion. We have reviewed the record and we find that the charge complied with the law applicable at the time of the trial as stated in Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373 (1977). Under the facts presented here, as in Bennett, the court’s expression of opinion was not error because the jury was repeatedly told they were not bound by the court’s opinion.

Appellant claims the expression of opinion deprived him of his right to a fair trial by denying him an effective voluntary manslaughter charge. The record clearly reveals that there was indeed no evidence which warranted a voluntary manslaughter verdict. That it was this lack of evidence, and not the opinion in the charge, which prompted the jury’s finding is clear from the fact that the jury did not exercise the option of finding third-degree murder. It is undisputed that the charge regarding third-degree murder was completely satisfactory to all parties and yet the jury demonstrated no inclination to find anything less than first-degree murder.

In addition, defendant also had the benefit of an involuntary manslaughter charge. He did not object that this instruction was rendered ineffective by the remainder of the remarks in the charge. Such an objection would be expected if the court’s expression of opinion was indeed of genuine concern. In any event, as we have already stated, the charge complied with Commonwealth v. Bennett, supra, because the court stressed that the jurors were not bound by its opinion.

It is interesting to note that the Supreme Court of Pennsylvania has acknowledged that Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974) (cert. denied, 419 U.S. 1000, 85 S.Ct. 316, 42 L.Ed.2d 274 (1974), the per curiam decision requiring a voluntary manslaughter charge even in the absence of evidence of provocation or passion, has been eroded by recent decisions. The Court has recognized that permitting the jury to consider a verdict where no evidence exists to support it may invite arbitrariness. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982) citing Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980) and Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980).

Appellant’s other claims of error are wholly without merit. Two extensions of time were granted the Commonwealth pursuant to Pa.Rules of Criminal Procedure, Rule 1100 and were justified under the law due to the fact that crucial witnesses had deliberately concealed their whereabouts. Commonwealth v. Brown, 252 Pa.Superior Ct. 365, 381 A.2d 961 (1977); Commonwealth v. Lane, 245 Pa.Super.Ct. 146, 369 A.2d 335 (1976). The lower court adequately reviewed the evidence of the Commonwealth’s due diligence in locating these witnesses. We are not disposed to second-guess the methods employed by the Commonwealth. The same is true of the lower court’s denial of the defendant’s motion to suppress the false identification he made to police. Further, the admission of testimony by decedent’s mother offered to show motive did not result in a denial of defendant’s constitutional rights. The record reveals no abuse of discretion by the lower court in its evidentiary rulings.

Finally, defendant claims his trial counsel and post-trial counsel were ineffective. He advances trial counsel’s failure to secure an expert witness in accident reconstruction as the basis for his ineffectiveness claim. He claims such an expert would have bolstered his credibility with regard to the probable cause of damage to defendant’s automobile. This is ludicrous. The probable cause of the damage is irrelevant. The issue at trial was whether defendant damaged the rear of his vehicle in an attempt to flee from the scene of the murder or whether it occurred before the murder. That there was an accident is undisputed and the cause of the damage was not at issue. The defendant does not contend that the circumstances surrounding the accident were so complex that they could not be adequately related to the jury by a lay person. Defendant gave his account of what happened and the jury chose not to believe him. It is impossible to see how the additional details as to the probable cause of the damage would bolster defendant’s credibility as to the timing of the accident or the alleged events which occurred thereafter. As we have said before, counsel will not be deemed ineffective for failure to pursue frivolous claims. See Commonwealth v. Mitchell, 477 Pa. 274, 383 A.2d 930 (1978). We can safely assume trial counsel recognized that the probable cause of damage was completely irrelevant and chose not to pursue such an issue.

This same reasoning is applicable to defendant’s claim that post-trial counsel was ineffective for failing to preserve this issue. The issue is frivolous and counsel is not ineffective by reason of his failure to raise it in post-trial motions. Commonwealth v. Mitchell, supra.

Defendant also claims counsel was ineffective for failure to call an alleged witness to the events preceeding the murder. Defendant has the burden of establishing that he had informed counsel of the witness’ existence. Commonwealth v. Ross, 273 Pa.Superior Ct. 67, 416 A.2d 1092 (1979). His bald allegation of ineffectiveness does not even approach satisfying this burden. Further, defendant presents no evidence, indeed no claim, that the alleged witness’ testimony would be in any way favorable to him. Therefore, we will not find that counsel was ineffective for failing to call this alleged witness. Commonwealth v. Robinson, 487 Pa. 541, 410 A.2d 744 (1980).

Judgment of sentence affirmed.

BROSKY, J., filed a concurring statement.

BROSKY, Judge,

concurring:

I agree with the majority’s disposition of those issues it has treated, but I would note that appellant has raised several other issues which I would find that the lower court has adequately disposed of in its comprehensive and well-reasoned opinion.


author: CAVANAUGH, Judge:

text:
    476 A.2d 414
    COMMONWEALTH of Pennsylvania v. Walter FLOYD, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1984.
    Filed April 19, 1984.
    Reargument Denied July 2, 1984.
    Petition for Allowance of Appeal Granted Oct. 1, 1984.

      Joel S. Moldovsky, Philadelphia, for appellant.
    Kenneth S. Gallant, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before CAVANAUGH, McEWEN and CHULLO, JJ.
   CAVANAUGH, Judge:

Appellant, Walter Floyd, was convicted by a jury of first degree murder in the shooting death of Conway Ennis. He was given life imprisonment and a sentence of eleven and one-half to twenty-three months on a weapons offense. The conviction took place just two weeks short of two years after the homicide; the Commonwealth contending that Floyd avoided arrest for a year and a half before surrendering himself. Ennis was shot during the early morning hours while engaged in a card game in the basement of a house. It was the Commonwealth’s contention that Floyd came to the house where a social gathering was taking place and shot Ennis when he was rebuffed in his efforts to join the card game. Crucial to the Commonwealth’s case was evidence from Michael Alexander, including a written statement made by him to the police and evidence of a subsequent photo identification of appellant made by him.

Appellant’s first contention on appeal centers about the admissibility of the Alexander photo identification evidence. We conclude that it was error to permit homicide detective George Harris to testify that Alexander had picked out Floyd as the perpetrator through the photo identification.

In order to assess the Harris testimony, we must first examine the developments during the course of the direct examination of witness Alexander. Alexander, called by the Commonwealth, stated that he was at a party on September 15, 1979 at 5150 Wakefield Street and that between 3:00 and 3:30 A.M., the deceased was shot. When asked if he saw the person who shot him, he replied “[n]ot really, no” and, thereafter offered that he had given a statement. Following an objection to this, there was a side bar conference wherein the assistant district attorney advised the court that he was seeking to lay a foundation as to “prior recollection recorded.” Resuming his testimony, Alexander stated that he spoke with police the morning following the shooting. Alexander related that the story he gave the police was “supposedly right.” Defense counsel asked if the district attorney was pleading surprise and the reply was that he was not, rather, he was trying to “refresh the recollection.” The statement was marked as an exhibit and it was established that the witness had signed his name at the bottom of each of the six pages. The witness perused the statement and replied “yes” when asked if the statement helped “bring back to you the events leading up to the shooting of Conway Ennis.” He testified that he was playing cards with Ennis; that it was dark, and somebody came up and wanted to play cards; that Ennis didn’t want the person to play and that there was a shooting and the shooter ran away. As the testimony proceeded, the witness was again referred to his statement to “refresh your recollection.” Later, the witness read from the statement his description of the person who approached while he was playing cards with Ennis. He described him as an “unknown man” and gave his physical characteristics, which apparently resembled those of defendant. The district attorney then proposed to read pages 1, 2, 3, 5 and 6 of the statement into the record as “prior recollection” recorded. With the court’s permission, after certain portions were deleted, the statement was read to the jury. In the statement, Alexander described the shooting in some detail but did not identify the shooter although he stated that he would be able to identify him if he saw him again. Finally, the witness stated that he could not identify the person who shot Conway Ennis.

We have detailed this direct examination in order to establish:

1. Alexander did not identify defendant in court.
2. Alexander did not identify defendant in his written statement, but therein stated that he could identify the assailant if he were to see him again.
3. The Commonwealth did not claim surprise during Alexander’s direct testimony.
4. Alexander’s written statement was used both to refresh his recollection and as past recollection recorded. (For purposes of this appeal we may assume that it was properly read into evidence.)
5. There was no testimony from Alexander as to a subsequent photo identification procedure.

On cross-examination Alexander gave the following pertinent testimony:

Q. Did you ever identify this defendant before?
A. No.
Q. [I]s this not the man that did the shooting?
A. I don’t think so.

On redirect examination the Commonwealth attempted to impeach Alexander’s credibility, but again made no reference to the photographic identification. Defendant’s objection to this line of questioning was eventually sustained by the trial judge,

Later in its case the Commonwealth called Detective George Harris as a witness. He stated that he interviewed Alexander at his home later on the day of the shooting, and that Alexander then picked out Floyd’s picture from an array of seven photographs and stated that he was the man who shot Ennis. The photograph was signed by Alexander and dated 9/15/79, 8:05 P.M. It was admitted in evidence and eventually was given to the jury during its deliberations.

In his charge to the jury, the trial judge reviewed the photographic identification of defendant by Alexander. But he did not state that this evidence was admitted only to aid the jury in assessing Alexander’s credibility. Nor did he instruct the jury that it should not consider the photographic identification as substantive evidence of defendant’s guilt.

We believe that it must be concluded that the jury did consider this testimony as substantive evidence of defendant’s guilt. It was the only evidence that anyone specifically identified defendant as the killer. If its admission was error, as we think it was, defendant is entitled to a new trial.

In ordinary circumstances, a party is entitled to impeach the credibility of an adverse witness, including a witness who becomes adverse as a result of answers elicited by his opponent’s cross-examination. A classic means of impeaching the credibility of a witness is to introduce a prior inconsistent statement that was made by the witness. See Commonwealth v. Brown, 302 Pa.Super. 391, 398-403, 448 A.2d 1097 (1982).

The problem in this case arises because the Commonwealth, in violation of Pa.R.C.P. 305(B)(1)(d), failed timely to notify defendant that it possessed evidence that Alexander had identified defendant’s photograph as a picture of the killer. As a result, defense counsel, unaware of the pitfall awaiting him, asked Alexander on cross-examination whether he had ever identified defendant before and whether defendant was the man who did the shooting. We have no doubt that if defense counsel had been apprised that the Commonwealth had in its possession a photograph of defendant which had been identified by Alexander as the killer, and which further had been signed by Alexander on the back, he would never have engaged in such a perilous and self-destructive cross-examination. The testimony thus elicited by an unknowing defense counsel cannot justifiably be used by the Commonwealth as a predicate for its introduction of the prior statement of identification made by Alexander. Because defendant’s counsel was lulled into opening the door to its admissibility by the Commonwealth’s failure to disclose its existence in accordance with court rules, a new trial is required.

The commonwealth also contends that Alexander’s identification of defendant’s photograph was admissible as substantive evidence. We disagree, and since this evidence could only have been considered by the jury substantively, would conclude that a new trial is warranted thereby.

If an out-of-court assertion, be it one of identification or otherwise, is offered in evidence to prove its truth, it is hearsay. Therefore, it is excludable unless it qualifies for some exception to the hearsay rule. Alexander’s identification of defendant’s photograph does not so qualify.

The federal courts and most states now recognize an exception to the hearsay rule for a prior statement of identification. See, D. Binder, Hearsay Handbook §§ 34.02 and 34.03 (2d ed. 1983).

A leading case is People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865, 867 (1960) in which the court explained:

Evidence of an extra-judicial identification is admissible, not only to corroborate an identification made at the trial ... but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached ... evidence of an extra-judicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind____ The failure of the witness to repeat the extra-judicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extra-judicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination.

But the foundation necessary to qualify a prior statement of identification for exception to the hearsay rule differs among the jurisdictions. In Commonwealth v. Saunders, 386 Pa. 149, 155, 125 A.2d 442 (1956), the court, affirming a conviction of murder, approved admission of testimony from three witnesses who could not identify defendant at trial that they had identified him in a police lineup that was held two days after the crime. However, the court approved admission of this testimony in a single paragraph that did not attempt to set forth the foundational requirements for this exception to the hearsay rule. (Judge Musmanno discussed the matter for ten pages, but he was dissenting.)

The reason for excepting any particular category of out-of-court statement to the hearsay rule is because experience shows that it is substantially more trustworthy than hearsay in general. We think that a fresh statement of identification made soon after a crime or other occurrence by a witness thereto is substantially more trustworthy than hearsay in general only if the witness vouches for the identification under oath at trial. Absent this important indicium of trustworthiness, we do not think that it merits exception to the hearsay rule.

In our view, a prior statement of identification made by a witness who does not make an in-court identification at trial qualifies for exception to the hearsay rule only if (1) the out-of-court identification was freshly made, and (2) the witness who made it takes the stand and vouches for its accuracy. See Cal.Evid.Code § 1238 (West 1966). (In addition, when offered against defendant in a criminal case, the witness must be subject to adequate cross-examination in order to satisfy defendant’s constitutional right to confront the witness against him.)

In this case, Alexander’s prior statement of identification was made the day following the murder. Therefore, the foundational requirement of freshness is satisfied. But Alexander did not testify that the identification that he made to Detective Harris was a truthful one. Thus, the second foundational requirement for this exception to the hearsay rule has not been met.

Alexander signed defendant’s photograph at the time that he identified it as a picture of the killer, according to Detective Harris. But it does not qualify for exception to the hearsay rule as recorded recollection because of the same failing that disqualifies it for exception as a prior statement of identification, i.e., Alexander did not vouch for its truthfulness under oath at trial.

Alexander’s photographic identification of defendant cannot qualify for exception to the hearsay rule as a prior inconsistent statement, since Pennsylvania follows the common law rule that a prior inconsistent statement is admissible only to impeach the credibility of a witness and does not constitute substantive evidence. See Commonwealth v. French, 501 Pa. 134, 460 A.2d 725 (1983); and Commonwealth v. Waller, 498 Pa. 33, 444 A.2d 653 (1982).

The Commonwealth’s reliance on Commonwealth v. Dean, 300 Pa.Super. 86, 89, 445 A.2d 1311 (1982); Commonwealth v. Sanders, 260 Pa.Super. 358, 364-366, 394 A.2d 591 (1978); and Commonwealth v. Dugan, 252 Pa.Super. 377, 383-386, 381 A.2d 967 (1977) (Spaeth, J. concurring), is misplaced. The majority opinion in the Dugan case approved admission of a sketch of defendant drawn at the direction of a victim of a rape approximately two to three hours after the crime as a res gestae statement. The Sanders and Dean cases admitted prior statements of identification by victims of crimes, each of whom identified the defendant in court. They were thus prior consistent (consonant) statements. Whether all, some, or no prior consistent statements should be considered substantive evidence, as distinguished from corroborative evidence only, is an issue that is not relevant to this case.

Judgment of sentence reversed. New trial granted.

      . There was extensive argument on the record — the Commonwealth contending that at the outset of trial defense counsel was told that there were "photographic identifications.” But it does not appear that counsel was told that there was a photo identification by Alexander or a statement concerning the identification from Detective Harris.