author: SUGERMAN, Judge.

text:
    451 A.2d 701
    COMMONWEALTH of Pennsylvania, Appellee, v. Joseph D. TRENGE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1979.
    Filed Oct. 1, 1982.
    Petition for Allowance of Appeal Denied Feb. 14, 1983.

      Carol K. McGinley, Assistant Public Defender, Allentown, for appellant.
    William H. Platt, District Attorney, Allentown, for Commonwealth, appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       Pres. Judge John Q. Stranahan, of the Court of Common Pleas of Mercer County, Pennsylvania, and Judge Leonard Sugerman, of the Court of Common Pleas of Chester County, Pennsylvania, are sitting by designation.

   SUGERMAN, Judge.

In the instant appeal from judgment of sentence imposed for possession of a controlled substance following a bench trial, Appellant contends that the contraband was seized in the course of an unlawful warrantless search of his person and should have thus been suppressed. We disagree and therefore affirm.

Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Jackson, 497 Pa. 591, 595, 442 A.2d 1098, 1100 (1982) (quoting from Commonwealth v. Johnson, 467 Pa. 146, 151-52, 354 A.2d 886, 889 (1976)); Commonwealth v. Horner, 497 Pa. 565, 573, 442 A.2d 682, 685-86 (same); Commonwealth v. DeCaro, 298 Pa.Super. 32, 46, 444 A.2d 160, 167 (1982); Commonwealth v. Nash, 292 Pa.Super. 79, 83, 436 A.2d 1014, 1016 (1981).

In light of these principles, it appears that the facts underlying Appellant’s contention, as developed at the suppression hearing below, are virtually uncontested and simply stated. On October 5, 1977, at approximately 10:30 a.m., Sergeant William Norton of the Salisbury Police Department, Lehigh County, Pennsylvania, while on duty, was walking through a wooded area in a public park in the Township, endeavoring to locate two truant juveniles he had reason to believe were in the park. As he proceeded, Sergeant Norton observed the juveniles, both of whom were known to him, seated upon a log in the company of Appellant who was unknown to him.

As Sergeant Norton approached the log, he detected the strong odor of burning marijuana. Although he observed no smoke and saw none of the three smoking, the odor intensified as Norton neared the trio. When he reached the log, Sergeant Norton asked Appellant for identification. As Appellant arose to comply with the request, Sergeant Norton observed what appeared to him to be the end of a pipe stem protruding approximately one-half inch from a pocket of Appellant’s jacket.

Sergeant Norton, a 14-year veteran of the Allentown and Salisbury Township Police Departments, was particularly experienced in dealing with marijuana and implements and paraphernalia used to smoke the substance.

Sergeant Norton testified that the pipe stem he observed was not the usual flat or pinched stem found on the ordinary smoking pipe but was, rather, rounded in shape and appeared to be metallic. Norton also testified that in his experience, pipes fitted with such stems were commonly used to smoke marijuana and not ordinary tobacco.

Upon observing the pipe stem, Sergeant Norton grasped it and withdrew the pipe from Appellant’s jacket pocket. Norton, having earlier observed a “bulge” under Appellant’s jacket, commenced a “pat down” search of Appellant and at the same time, advised Appellant that he was under arrest for possession of marijuana. Norton continued the pat down search and in the area where he had earlier observed the bulge, under Appellant’s outer jacket, Norton found a bag with a strap securing it over Appellant’s shoulder. Sergeant Norton confiscated the bag, immediately opened it and discovered 350 grams of marijuana inside. Later, upon analysis, the pipe was found to contain marijuana residue.

Pretrial, Appellant moved to suppress the pipe and marijuana, and following a hearing, the suppression judge refused to suppress the same, concluding that both were seized pursuant to a lawful search based upon probable cause. Both the pipe and the marijuana found in the shoulder bag were introduced in evidence at Appellant’s trial.

Ruling upon the same issues as raised in Appellant’s post trial motions, the Court en banc concluded that the odor of burning marijuana, in combination with the protruding pipe stem, provided probable cause to arrest Appellant without a warrant. The court en banc also concluded that the marijuana found in the shoulder bag was the product of a search incident to a lawful arrest. Opinion of the Court En Banc at 2.

It is clear that a police officer may in appropriate circumstances stop and question a person for investigatory purposes when he observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968); Commonwealth v. Dennis, 289 Pa.Super. 305, 310, 433 A.2d 79, 81 (1981); Commonwealth v. Galadyna, 248 Pa.Super. 226, 232, 375 A.2d 69, 72 (1977). It is equally clear, however, that once such person is restrained by physical force or show of authority, the protections afforded by the Fourth Amendment to the Constitution of United States are implicated, Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), reh. den. 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980), and such person may not be searched without a warrant unless the police officer observes such unusual conduct on the part of the person searched that he may reasonably conclude that criminal activity may be afoot, and that the person with whom he is dealing is armed and dangerous, Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972) (quoting Terry v. Ohio, supra 392 U.S. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 908); Commonwealth v. Mears, 283 Pa.Super. 416, 418, 424 A.2d 533, 534 (1981) (collects cases), or the police officer has probable cause to arrest such person, Commonwealth v. Jones, 474 Pa. 364, 370, 378 A.2d 835, 839 (1977) (quoting Commonwealth v. Berrios, 437 Pa. 338, 340, 263 A.2d 342, 343 (1970)); Commonwealth v. Hunt, 280 Pa.Super. 205, 212, 421 A.2d 684, 687 (1980); Commonwealth v. Stewart, 257 Pa.Super. 334, 339, 390 A.2d 1264, 1267 (1978).

Addressing the first of these exceptions, it is settled that a generalized suspicion or good faith on the part of a police officer that the subject of his focus is armed will not justify a search of the person; rather, the officer must be able “to point to particular facts from which he reasonably inferred that the individual was armed and dangerous”. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917, 935 (1968); Commonwealth v. Berrios, supra 437 Pa. at 341, 263 A.2d at 343; Commonwealth v. Prengle, 293 Pa.Super. 64, 67, 437 A.2d 992, 994-95 (1981); Commonwealth v. Williams, 287 Pa.Super. 19, 23-4, 429 A.2d 698, 702 (1981); Commonwealth v. Pegram, 450 Pa. 590, 301 A.2d 695 (1973).

At bar, Sergeant Norton testified on cross examination: “[By Defense Counsel]
Q. Now, Officer Norton, when you came up to Mr. Trenge, were you in fear, apprehension or harm from Mr. Trenge?
A. Pm sorry, I fail to understand.
Q. Well, were you afraid that Mr. Trenge was going to attack you at any time?
A. He made no motion of that, no.
Q. Did you feel he was armed and dangerous?
A. I didn’t know.
Q. Well, that’s not my question. Based upon your contact with him, was it your impression that he was armed and dangerous?
A. He could have been, yes.
Q. He could have been. Again, that is not my question. My question is: Did you believe at that time that he was armed and dangerous? Yes or no, please.
A. I’d have to say yes.
Q. And what do you base that upon?
A. The circumstances involved.
Q. The circumstances that an individual is sitting in a park on a log with two juveniles that he was armed and dangerous? This is a public park, isn’t it?
A. That’s correct.”

As is at once obvious, this testimony is utterly devoid of “particular facts” from which Sergeant Norton might reasonably have inferred that Appellant was armed and dangerous. Sibron v. New York, supra. Sergeant Norton’s testimony that Appellant “could have been armed”, and that he believed that Appellant was armed and dangerous by reason of the “circumstances involved”, without more, are in our view gross generalities and do not rise to that level of “particularized” or “articulable” suspicion necessary to permit a search under the second of the two exceptions. Sibron v. New York, supra; Commonwealth v. Berrios, supra; Commonwealth v. Prengle, supra; Commonwealth v. Hunt, supra. Accordingly, the search at bar can only be justified if at the moment Sergeant Norton conducted the search, he had probable cause to arrest Appellant.

The question we must answer, then, is whether the odor of burning marijuana in Appellant’s immediate vicinity, in combination with Sergeant Norton’s observation of the rounded pipe stem protruding from Appellant’s jacket provided probable cause to arrest Appellant.

In Commonwealth v. Kazior, 269 Pa.Super. 518, 410 A.2d 822, allocatur denied 269 Pa.Super. 518, 410 A.2d 822 (1980), reiterated recently in Commonwealth v. Simmons, 295 Pa. Super. 72, 82, 440 A.2d 1228, 1233 (1982) and in Commonwealth v. Allen, 287 Pa.Super. 88, 102, 429 A.2d 1113, 1119-20 (1981), we enunciated the test for 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 the arrest, and of which they have reasonable 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 the 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).”

And see, Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980); Commonwealth v. Allen, supra; Commonwealth v. Williams, supra.

It is apparent that Appellant was arrested for the crime of possession of marijuana. In the context of our definition of probable cause, then, we must determine whether Sergeant Norton’s senses provided him with sufficient information to justify his conclusion that the suspected contraband was present.

It is obvious as well that Sergeant Norton relied primarily upon his sense of smell in concluding that marijuana was then present. At least since the Supreme Court of the United States decided Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), it has been clear that probable cause may be established in this fashion. See, LaFave, Search and Seizure (1978) § 3.6(b) at 648-54.

In Johnson, trained narcotics officers recognized the odor of burning opium emanating from a hotel room. They knocked upon the door, arrested the person who admitted them and searched the room without a warrant. The search revealed opium and smoking apparatus. At trial, the Court refused to suppress the opium and smoking apparatus, permitted the evidence to be admitted at trial, and the Defendant was convicted.

On appeal, the Defendant contended inter alia, that odors cannot constitute probable cause. Responding to this contention, the Court said pertinently:

“At the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant. We cannot sustain defendant’s contention, erroneously made, on the strength of Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 [1932] that odors cannot be evidence sufficient to constitute probable cause for any search. That decision held only that odors alone do not authorize a search without a warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed, it might very well be found to be evidence of the most persuasive character.” Id. at 13, 68 S.Ct. at 368-69, 92 L.Ed. at 440.

In Commonwealth v. Stoner, 236 Pa.Super. 161, 344 A.2d 633 (1975), a police officer stopped an automobile for a traffic violation. When one of the passengers opened the glove compartment to obtain the vehicle registration card, a pistol dropped out. The officer thereupon ordered the Appellant, the driver, and all passengers out of the vehicle and arrested them for violation of the Uniform Firearms Act. The officer then returned to the vehicle to retrieve the pistol and as he reached in to do so, he noted a “very distinct” odor of marijuana about the interior of the vehicle.

Although he observed marijuana leaves and seeds on the floor and seats of the vehicle, the officer was certain the odor was too strong to be emanating from the seeds and leaves in his view. Another officer arrived upon the scene and both then searched the trunk and found therein a large quantity of marijuana.

Following denial of appellant’s motion to suppress the marijuana, he was convicted, inter alia, of possession of a controlled substance, and on appeal, contended that the warrantless search of the trunk violated the Fourth Amendment.

Our Court, discussing the question of probable cause to search the trunk, first held that the marijuana leaves and seeds alone established probable cause to search the automobile. We then added:

“However, we need not base our decision solely on the evidence in plain view. [The police officer] indicated additionally that he noted a very strong odor of marijuana coming from inside the car. He stated that the odor was, ‘[V]ery strong, it was similar to standing in the center of a field of marijuana’...”

We next observed that the Supreme Court of the United States has held “that an odor may be sufficient to establish probable cause for the issuance of a search warrant”. Id., 236 Pa. Super, at 166, 344 A.2d at 635, citing Johnson, supra, and United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

We then noted that as the police officer was justifiably in the position from which he detected the odor, “[i]t would have been a dereliction of duty for him to ignore the obvious aroma of an illegal drug which he was trained to identify”. Id. 236 Pa.Super. at 166, 344 A.2d at 635.

Affirming appellant’s conviction, we finally quoted a passage from United States v. Martinez-Miramontes, 494 F.2d 808 (9th Cir. 1974), and adopted it as the law of Pennsylvania:

“ ‘We find no distinction of substance between leaning down and turning the head to look inside a motor vehicle to see articles which then come within the “plain view” doctrine, (citation omitted), and leaning down and sniffing to detect the odor of marijuana’ 494 F.2d at 810” Id. 236 Pa.Super. at 167, 344 A.2d at 636.

More recently, a panel of this Court decided Commonwealth v. Pullano, 295 Pa.Super. 68, 440 A.2d 1226 (1982) where one of several police officers, while executing a search warrant in an apartment located on the second and third floors of a building, smelled a strong odor of marijuana which he determined to be emanating from another apartment on the first floor. After completing the search pursuant to the warrant, the police went to the first floor apartment to ascertain the names of the occupants. They knocked on the door and it was soon opened, revealing a group of persons surrounded by drug paraphernalia and marijuana cigarettes. The Appellant was seated in a chair holding a plastic vial containing a pill and a small plastic bag. When he saw the police, the Appellant attempted to drop the vial. He was thereupon placed under arrest and a search of his person revealed a pipe containing marijuana residue.

Affirming appellant’s conviction of violating the Controlled Substance, Drug, Device and Cosmetic Act following denial of his motion to suppress evidence, we said, pertinently:

“The officers at the scene had smelled a strong odor of burning marijuana, and had heard noises suggesting that a party was then in progress. These were circumstances suggesting that criminal activity was underway within their presence. They were not required to ignore that activity .. . Indeed, at this point they already had probable cause to make an arrest.” (Emphasis Added). 295 Pa.Super. at 70, 440 A.2d at 1227.

Many of our sister jurisdictions, as well as a number of Circuit Courts of Appeal have also held that the odor of marijuana may, in combination with other circumstances, provide probable cause. See, e.g., United States v. Rivera, 595 F.2d 1095 (5th Cir.1979); United States v. Curran, supra; United States v. Bowman, 487 F.2d 1229 (10th Cir.1973); State v. Medders, 153 Ga.App. 680, 266 S.E.2d 331 (1980); Miller v. State, 373 So.2d 1004 (Miss.1979); Moulden v. State, 576 S.W.2d 817 (Tex.Cr.App.1978); State v. Harrison, 111 Ariz. 508, 533 P.2d 1143 (1975); People v. Cook, 13 Cal.3d 663, 119 Cal.Rptr. 500, 532 P.2d 148 (1975); A Minor Boy v. State, 91 Nev. 456, 537 P.2d 477 (1975); State v. Compton, 13 Wash.App. 863, 538 P.2d 861 (1975); State v. Salcido, 22 Ariz.App. 167, 525 P.2d 298 (1974); Rogers v. State, 131 Ga.App. 136, 205 S.E.2d 901 (1974); People v. Parisi, 46 Mich.App. 322, 208 N.W.2d 70 (1973); State v. McGuire, 13 Ariz.App. 539, 479 P.2d 187 (1971); Commonwealth v. Cohen, 359 Mass. 140, 268 N.E.2d 357 (1971); Vaillancourt v. Superior Court for County of Placer, 273 Cal.App.2d 791, 78 Cal.Rptr. 615 (1969). See also, 1 LaFave, Search and Seizure (1978) § 3.6, supra.

As we have observed, odors without more in the usual case will not provide probable cause. Johnson, supra, citing Taylor v. United States, supra; United States v. Curran, supra; and See and Compare State v. Olson, 180 Mont. 151, 589 P.2d 663 (1979); State v. Valenzuela, 121 Ariz. 274, 589 P.2d 1306 (1979); People v. Hilber, 403 Mich. 312, 269 N.W.2d 159 (1978). Appellant at bar grasps at this principle and contends that in our case there is nothing more than an odor, as in his view, the pipe stem protruding from his pocket appeared to be an innocuous metal tube and was not determined to be a part of a smoking pipe until it was seized by Sergeant Norton. Appellant’s Brief at 5-6. Appellant, however, overlooks the requirement that we “focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might ...” Commonwealth v. Layman, 290 Pa.Super. 244, 249, 434 A.2d 735, 737 (1981) (quoting Commonwealth v. Tolbert, supra); Commonwealth v. Fiore, 281 Pa.Super. 1, 4, 421 A.2d 1116, 1119 (1980); Commonwealth v. Kazior, supra 269 Pa.Super. at 523-4, 410 A.2d at 824-25.

Testifying on the subject of the protruding stem, Sergeant Norton said the following:

“Q. [By the Assistant District Attorney] What did you do then, Sergeant?
A. [By Sergeant Norton] The two juveniles knew me; and I, of course, knew them. The Defendant I did not know at the time, and I asked him for identification. As he was producing his identification, I noted in his left coat pocket was a—breast coat pocket—a stem, a metal stem which appeared to be the stem of a pipe to me.
Q. Now, officer, in your experience as a police officer, would you say it was a normal pipe or one that was used for smoking of marijuana?
MR. STEINBERG: [Defense Counsel] Your Honor, I’m going to object at that time—at this time. I don’t think a proper foundation has been laid. And if you see a mouthpiece of something, I don’t know if you are qualified to testify it’s a marijuana pipe.
THE COURT: Can we get a little deeper into that, Mr. Moyer?
MR. MOYER: Yes, Your Honor.
BY MR. MOYER:
Q. Have you ever seen any pipes used for smoking marijuana before in your fourteen years of experience, sergeant?
A. Yes, many times.
Q. Approximately how many times would you say?
A. More than a hundred, 150 times. I’ve been to numerous schools on the subject also.
Q. Have you taken—you’ve taken courses then, I take it? A. That’s correct.
Q. How many?
A. I’ve taken several at Lehigh County Community College and several in police training courses.
Q. Could you tell from just looking at a mouthpiece whether a pipe would probably be used for smoking of marijuana?
A. Yes, I believe you can.
Q. Do you think that the pipe that you observed on this date was one that would probably be used for smoking of marijuana?
MR. STEINBERG: I’m going to object to the form of the question, Your Honor.
THE COURT: Probably?
MR. STEINBERG: Yes.
THE COURT: Are you saying—do I understand you, sergeant, that if I have a pipe sticking out of my coat pocket that you can say that was used for smoking marijuana?
THE WITNESS: Your Honor, the general difference is 80 percent or better, maybe even 90 percent, of marijuana smokers don’t use the average pipe stem which is rather flat. It’s generally a round—either home-made or bought in that fashion—metal, wood sometimes. But they’re generally—the stem is round rather than flat, not the type of pipe you’re thinking of.
THE COURT: When you say ‘this stem’, that’s what you are talking about?
THE WITNESS: Yes.
THE COURT: In other words, when you are talking about the stem of a pipe, we’re not talking about the stem of a normal, commercial pipe. I’m not a pipe smoker, but I’ve smoked a pipe in my day.
THE WITNESS: That’s correct.
THE COURT: That we normally associate with being a pipe stem.
THE WITNESS: That’s not the type of stem I have reference to.
THE COURT: . .. Are you saying then this is like, just a circular, straight stem?
THE WITNESS: Yes, Your Honor.
THE COURT: Like a straw?
THE WITNESS: Yes.
THE COURT: All right.
BY MR. MOYER:
Q. Sergeant, could you describe the stem that you saw? Was it round?
A. It was a round stem. I believe it was metal. My recollection is that it was a bluish color. And the part I saw sticking out of the pocket was perhaps half-inch long outside of the jacket.
Q. Would you say it’s the type that’s normally used for smoking tobacco?
A. No, sir.
Q. Would you say in your experience it’s the type of pipe normally used for smoking marijuana?
A. Yes, it’s normally used for smoking marijuana.” (N.T.S.H. 9-13)

The observations and opinions thus described and expressed by Sergeant Norton are obviously those of a highly trained and experienced police officer and we find that when viewed through his eyes, the circumstances were sufficient “to warrant a man of reasonable caution in the belief” that Appellant had committed or was committing a crime. Commonwealth v. Kazior, supra. We therefore conclude that when Sergeant Norton observed the pipe stem protruding from Appellant’s pocket, he had probable cause to arrest Appellant.

It is of course axiomatic that an arresting officer may, without a warrant, search a person validly arrested, and the constitutionality of a search incident to a valid arrest does not depend upon whether there is any indication that the person arrested possesses weapons or evidence as the fact of a lawful arrest, standing alone, authorizes a search. Michigan v. DeFillippo, 443 U.S. 31, 35, 99 S.Ct. 2627, 2630, 61 L.Ed.2d 343, 348 (1979). And see, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Commonwealth v. Long, 489 Pa. 369, 414 A.2d 113 (1980); Commonwealth v. Bess, 476 Pa. 364, 382 A.2d 1212 (1978); Commonwealth v. Pinney, 474 Pa. 210, 378 A.2d 293 (1977).

It follows, then, that the search of Appellant’s person, resulting in the discovery and seizure of the pipe and the shoulder bag containing the marijuana, was a lawful search and the lower court properly refused to suppress such evidence.

Affirmed.

      . Sergeant Norton testified without refutation that he frequently lectured on the subject. (N.T.S.H. 10)

      . We are not here concerned with a brief investigatory stop by Sergeant Norton. See U.S. v. Mendenhall, supra; Terry v. Ohio, supra; Commonwealth v. Jones, supra; Commonwealth v. Williams, 287 Pa.Super. 19, 429 A.2d 698 (1981).

      . The Johnson Court determined that entry to the room was demanded under color of office and granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right. Id. at 13, 68 S.Ct. at 368, 92 L.Ed. at 440.

      . It is observed that the Court in Johnson was concerned with the question of odors as probable cause for the issuance of search warrants, and at bar we are concerned with the question of odors as probable cause for a warrantless arrest. It will be recalled that all arrests and searches, whether with or without a warrant, must be based upon probable cause and the standard is the same for both arrests and searches. Commonwealth v. Benjamin, 260 Pa.Super. 1, 5, 393 A.2d 982, 984 (1978). See also Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973); Commonwealth v. Hughes, 268 Pa.Super. 536, 408 A.2d 1132 (1979), pet. for allowance of appeal den. 268 Pa.Super. 536, 408 A.2d 1132 (1980); Commonwealth v. Harmes, 255 Pa.Super. 147, 386 A.2d 551 (1978).

      . The officer testified at appellant’s trial that he was very familiar with marijuana. Id at 163, 344 A.2d at 634.

      . This concept has been referred to by some Courts as the “plain smell doctrine”, See, e.g. United States v. Curran, 498 F.2d 30, 33 (9th Cir. 1974).

      . In United States v. Mendenhall, supra 446 U.S. at 563, 100 S.Ct. at 1882, 64 L.Ed.2d at 515, the Court observed:
      “In reviewing the factors that led the agents to stop and question the respondent, it is important to recall that a trained law enforcement agent may be ‘able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer’ [Citation omitted]”

        See also, United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607, 619 (1975) (“In all situations the officer is entitled to assess the facts in light of his experience ... ”); United States v. Tinkle, 655 F.2d 617, 621 (5th Cir.1981) (“But in analyzing whether probable cause exists [to arrest] we must consider all of the relevant factors viewed from the perspective of the arresting officer”.) (Emphasis added).

      . It may be suggested that at the moment Sergeant Norton seized the pipe, Appellant was not under arrest, and the record is not entirely clear on the question of whether Appellant had been advised verbally that he was under arrest before Sergeant Norton seized the shoulder bag containing the marijuana in the course of the pat-down search. We respond by noting that an arrest may be accomplished by any act that indicates to the person arrested an intention on the part of the police officer to take such person into custody and that subjects such person to the actual control and will of the officer making the arrest. Commonwealth v. Haggerty, 495 Pa. 612-614, 435 A.2d 174, 175 (1981) (quoting Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963)). Clearly, this test does not require that a person be verbally advised that he is under arrest before the arrest may be said to occur. Of equal significance, however, a search conducted immediately prior to an arrest is as valid as a search conducted subsequent and incident to the arrest provided the officer had probable cause to arrest prior to the search as long as the contraband discovered in the search is not used as justification or probable cause for the arrest. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Sibron v. New York, supra. (Harlan, J. concurring); 2 LaFave, Search and Seizure (1978) § 5.4(a) at 336-38.


source: Caselaw Access Project

author: PRICE, Judge:

license: Public Domain

text:
    451 A.2d 710
    Benjamin BARNEY, Appellant, v. Dan F. FORADAS and Allegheny Valley Transfer Company.
    Superior Court of Pennsylvania.
    Argued April 15, 1980.
    Filed Oct. 8, 1982.

      Stanley W. Greenfield, Pittsburgh, for appellant.
    Warren D. Ferry, Pittsburgh, for appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   PRICE, Judge:

Appellant, Benjamin Barney, brought an action in trespass for personal injuries sustained when he was struck by appellees’ pick-up truck. Upon the completion of appellant’s case on liability, the appellees’ motion for a compulsory nonsuit was granted and the case dismissed. Thereafter the appellant presented a motion to remove the non-suit which was denied and this appeal followed.

At the trial, Mr. Barney testified that sometime after 1:30 p.m. on August 20, 1974 he exited a bus at the corner of Loretta Street and Murray Avenue. Murray Avenue is a four-lane public thoroughfare in the city of Pittsburgh which runs generally north and south, having two lanes for northbound and two lanes for southbound traffic. Murray Avenue intersects Loretta Street, a through street, at a right angle and the next intersection north of Loretta is Lilac Street, also a through street intersecting Murray Avenue at right angles. On the west side of Murray Avenue at Loretta Street is a Giant Eagle supermarket. On the east side of Murray at Loretta Street is a business establishment known as Lester’s and to the north of and adjacent to Lester’s is a bakery known as Lieberman’s. The weather was clear and dry.

After alighting from the bus, the plaintiff walked westward across Murray Avenue and then north to Lieberman’s bakery. Having completed his purchases, he accompanied two children that were in the bakery to the eastern curb of Murray Avenue. After checking for traffic, he permitted them to cross over to the Giant Eagle. Once he saw that the children were safely across he began to make his own way across the street.

Mr. Barney testified that he looked both ways before stepping off the curb and that he observed no oncoming traffic from either direction. (N.T. 30). He estimated that he was approximately three quarters of a bus stop away from the nearest intersection of Murray and Lilac and that he could see clearly up to that intersection. (N.T. 30-32). A witness, Laurel O’Hare, testified that Mr. Barney was approximately three-fourths of the way across the street before he was hit.

Mr. Barney does not recall being struck by the vehicle. He also does not remember whether he continued to look for vehicles travelling on Murray as he crossed the street. (N.T. 31, 43). He did not observe the vehicle which struck him at any time. (N.T. 45). The witness, Mrs. O’Hare, who was watching Mr. Barney from the restricted view inside the bakery, also did not observe the truck prior to impact. (N.T. 57). Mr. Barney presented only himself and Mrs. O’Hare to establish the liability of the appellees.

A compulsory nonsuit may be entered only in a clear case where the facts and circumstances have as the only conclusion the absence of liability. McKenzie v. Cost Bros. Inc., 487 Pa. 303, 409 A.2d 362 (1979). Where the plaintiff moves to take off a non-suit in a personal injury action, plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence and all conflicts must be resolved in his favor. Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970); Beaver v. Miller, 260 Pa.Superior Ct. 173, 393 A.2d 1209 (1978).

In an action of trespass for personal injuries based on a negligence claim, the plaintiff in proving that defendant was negligent, must not show contributory negligence on his own part. In this case, the issue is whether plaintiff was contributorily negligent as established by his own evidence.

Mr. Barney was crossing Murray Avenue at a point between intersections when he was hit. The mere fact that a plaintiff crosses between intersections is insufficient to prove contributory negligence. Gregorich v. Pepsi-Cola M.B. Co., Inc., 230 Pa. Superior Ct. 144, 327 A.2d 171 (1974). However, a

pedestrian crossing a highway within a business or residence district at any other point other than a crosswalk, shall yield the right of way to vehicles upon the highway. ... A pedestrian who crosses a street between intersections is held to a higher degree of care than at street intersections, while the driver of a motor vehicle is held to a correspondingly lesser degree of care.

Lavely v. Wolota, 253 Pa.Superior Ct. 196, 200, 384 A.2d 1298, 1300-1301 (1978) quoting Taylor v. Fardink, 231 Pa.Superior Ct. 259, 264, 331 A.2d 797, 800 (1974). A person having the right of way has the right to presume that others will comply with the duty to recognize it and yield to it. Gaev v. Mandell, 219 Pa.Superior Ct. 397, 281 A.2d 699 (1971). All pedestrians have duties to look prior to stepping onto the highway and to continue to look as they cross in order to secure their safe passage. Shuman v. Nolfi, 399 Pa. 211, 214, 159 A.2d 716, 718 (1960); Parker v. Jones, 423 Pa. 15, 223 A.2d 229 (1966); Deibold v. Sommerville, 207 Pa.Superior Ct. 31, 215 A.2d 313, 315 (1965). A plaintiff-pedestrian’s failure to meet this duty constitutes contributory negligence as a matter of law. Shuman v. Nolfi, 399 Pa. 211, 214, 159 A.2d 716, 718 (1960); Sweigert v. Mazer, 410 Pa. 71, 72, 188 A.2d 472, 473 (1963). Thus if the evidence showed that plaintiff failed to look as he crossed, the grant of the nonsuit was proper.

In this case, there was no evidence offered by Mr. Barney to support the inference that although he was keeping a proper look-out, the truck hit him nonetheless. For example if the truck had been speeding, or if there was a hill obstructing vision, or if the truck had suddenly pulled out into the street, an inference could be drawn that although Mr. Barney was observing properly, he had no chance to avoid being hit or to yield the right of way. From the present facts, there are but two possible conclusions: either Mr. Barney failed to look as he crossed; or he looked and carelessly failed to see the truck, which according to the evidence given should have been within his view.

In Auel v. White, 389 Pa. 208, 132 A.2d 350 (1957), the Pennsylvania Supreme Court used similar logic in upholding a compulsory nonsuit. The plaintiff in the Auel case was struck by a car while crossing a four-lane highway. He had crossed the two eastbound lanes and was struck in a westbound lane (as was Mr. Barney in the present case). No evidence was offered by either side concerning whether plaintiff looked while crossing. Nonetheless, the court stated that:

Since the undisputed testimony for plaintiff disclosed that he was struck just as he crossed the center line he must have, or at least should have seen defendant’s vehicle approaching. There was nothing to show that plaintiff’s view was obscured, and, therefore, he was bound to see that which must have been plainly visible at the time it became his duty to look. The inference is unavoidable that if plaintiff had looked he could have averted the danger. No other reasonable conclusion can be drawn from the testimony presented in plaintiff’s case. If he failed to look he was negligent and if he looked he must have seen defendant’s moving vehicle and stepping in front of it or into it was equally negligent.

Auel, supra, 389 Pa. 208, 215, 132 A.2d 350, 354.

Appellant primarily relies on Lavely v. Wolota, 253 Pa.Superior Ct. 196, 384 A.2d 1298, (1978) and Collins v. Zediker, 417 Pa. 569, 208 A.2d 841 (1965) as support for his claims. In Lavely, we found that the question concerning plaintiff’s contributory negligence was one of fact for the jury to determine. However, in that case unlike the present one, evidence was presented from which it could be inferred that plaintiff had met her duty of observation. The truck which hit the plaintiff had been stopped and the plaintiff had observed the driver looking directly in front of him. Also, another person had crossed safely in front of her while the truck remained stopped. Thus there was evidence of her attentiveness from which a jury could determine due care, whereas in this case, Mr. Barney offered no indication of continued observation or the sudden movement of a stopped truck. Mr. Barney’s testimony was that he never saw the vehicle that struck him.

In Collins v. Zediker, 417 Pa. 569, 208 A.2d 841 (1965), there were also facts which indicated possible continued observation. In Collins, evidence was offered showing the fast speed of the vehicle and the fact that there was a dip in the road which could have prevented the plaintiff from seeing the truck at a point fifty feet from impact. Neither Mr. Barney’s testimony nor the photographs indicate any obstruction of plaintiff’s view, and in fact indicate the contrary, i.e. that plaintiff’s view was an unobstructed one.

Therefore in this case, there is no other possible inference but that Mr. Barney was contributorily negligent. Thus the non-suit was properly granted.

Judgment affirmed.

      . Counsel stipulated that it was the appellees’ truck which collided with appellant and that the operator of the truck was acting within the scope of his authority with the corporate appellee.

      . See also Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977); and Lavely v. Wolota, 253 Pa.Superior Ct. 196, 384 A.2d 1298 (1978).

      . The trial judge granted the nonsuit for two reasons: first that negligence was not established; and secondly that the plaintiff was contributorily negligent. We agree on both grounds, although the discussion of contributory negligence renders the discussion of negligence unnecessary, as at the time of the accident, contributory negligence was a complete bar to recovery.

      . See also Brown v. Jones, 404 Pa. 513, 172 A.2d 831 (1961); Auel v. White, 389 Pa. 208, 132 A.2d 350 (1957); Gaev v. Mandell, 219 Pa.Superior Ct. 397, 281 A.2d 699 (1971).

      . As for appellant’s contention that a pedestrian has no continuing duty to look in any one direction, it is a matter of common sense that one should look in the direction from which cars are coming, and that a failure to do so is an indication of contributory negligence.


author: SPAETH, Judge: CAVANAUGH, Judge,

text:
    451 A.2d 714
    COMMONWEALTH of Pennsylvania v. Larry BRUNNER, Appellant. COMMONWEALTH of Pennsylvania v. Woodrow Wilson MURPHY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1982.
    Filed Oct. 8, 1982.

      Gary R. Egoville, Assistant Public Defender, Norristown, for appellants.
    David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   SPAETH, Judge:

This case arises on two appeals, which have been consolidated. Appellant Brunner and appellant Murphy were tried together before a jury. Each was convicted of burglary, theft of movable property, theft by receiving stolen property, and conspiracy. On the burglary convictions, appellant Brunner was sentenced to five to ten years imprisonment, and appellant Murphy to seven and one-half to fifteen years imprisonment. Appellants make several common arguments, which will be discussed first: (1) whether the lower court erred in denying a motion to dismiss filed by each appellant for unreasonable pre-arrest delay; (2) whether the lower court erred in denying the motion to suppress prior convictions of each appellant; and (3) whether the evidence was sufficient to sustain the convictions. In addition, each appellant raises other issues. Appellant Brunner argues that the lower court erred in denying his motion to sever. Appellant Murphy argues that the lower court erred (1) in denying his motion for a change of venue; (2) in denying his motion to suppress his alias “Christopher Souder;” (3) in admitting into evidence certain exhibits; and (4) in denying his motion for a mistrial when a Commonwealth witness testified that he had “jumped parole.” We do not find any of these arguments meritorious, except appellant Murphy’s argument that his motion for a mistrial should have been granted. We therefore affirm appellant Brunner’s judgment of sentence, but vacate appellant Murphy’s and grant him a new trial.

The first of the common arguments concerns whether there was sufficient pre-arrest delay to justify granting appellants’ motions to dismiss. Appellants argue that there was a delay of ten months between the time of the incident and their arrest. Appellant Brunner’s Brief at 9; Appellant Murphy’s Brief at 10.

The burglary of the Fries residence, which is the incident that gave rise to the charges here, took place on August 10, 1979. At the pre-trial hearing, Trooper Kline testified that he had first learned of Alice Maxwell, also known as Debbie Souder, on December 7, 1979, the day she was arrested for attempting to sell a stolen camera to a camera store. N.T. 12/2/80, 7. On December 12, a search warrant was issued for the residence in which Ms. Maxwell lived with appellant Murphy. Id. 15. On January 30, 1980, Ms. Maxwell told the trooper that she had been involved in burglaries with both appellant Brunner and appellant Murphy. Id. On March 10, Ms. Maxwell told the trooper that she had burglarized the Fries home. Id. 12. There were subsequent interviews with Ms. Maxwell, id. 12, and further investigation, id. 14. On June 11, complaints were issued for both appellants. Appellant Brunner was arrested on June 18, and appellant Murphy on June 20. d. 13-14. Trooper Kline explained that the delay in arresting appellants after the complaints had issued occurred because it was necessary to have appellants released from incarceration. Id. 14.

Appellants argue that the ten-month period between the Fries burglary, on August 10, 1979, and their arrests, on June 18 & 20, 1980, denied them due process. The Commonwealth argues that the relevant time period, and delay, was some four and one-half months, that is, from January 30, 1980, when Ms. Maxwell first mentioned appellants, to appellants’ arrests in June. Brief for Appellee at 8 (Brunner); Brief for Appellee at 5 (Murphy). As to appellant Brunner, the lower court held that the “three month delay” was justified by the need for further investigation, and that Brunner had not been prejudiced by the delay since he was able to produce an alibi witness. Slip op. at 5 (Brunner). As to appellant Murphy, the lower court held that the delay was justified. Slip op. at 3 (Murphy).

We agree with the lower court’s conclusion, but not all of its reasoning. The relevant time period is the ten months between the date of the incident and appellants’ arrests. See Commonwealth v. DeMarco, 281 Pa. Superior Ct. 62, 421 A.2d 1147 (1980); Commonwealth v. Sanders, 260 Pa. Superior Ct. 358, 394 A.2d 591 (1978). In deciding whether this ten-month delay denied appellants due process, we must balance the reasonableness of the delay against the prejudice to appellants. Here, the delay was long, but it was justified by the investigative efforts of the police, who did not learn that appellants were connected with the Fries burglary until March 10, 1980. See N.T. 12/3/80, 9, 12, 17, 18. Moreover, even if the delay were not justified, appellants have shown no prejudice, which is a prerequisite to the grant of a motion to dismiss. Commonwealth v. DeRose, 225 Pa. Superior Ct. 8, 307 A.2d 425 (1973) (mere fact of unjustified delay insufficient to justify dismissal; dismissal granted where defendant showed both lack of justification and prejudice). As the lower court noted, slip op. at 5, appellant Brunner produced an alibi witness, his girlfriend, to testify that he was tending his ice cream store on the date of the burglary. N.T. 12/5/80, 162. Although appellant Murphy testified at the pre-trial hearing that he could not remember where he was on the day of the burglary, N.T. 12/3/80, 46, failure to remember the events of the day in question is not by itself enough to show prejudice. Commonwealth v. Sanders, supra (SPAETH, J., concurring op.).

The second common argument is that the lower court erred in not suppressing evidence of appellants’ prior convictions, thereby effectively precluding each of them from taking the stand in his own defense. Appellant Brunner had been convicted of burglary the previous year, Appellant’s Brief at 11 (Brunner), and appellant Murphy had been convicted of retail theft and several counts of robbery in 1979, Appellant’s Brief at 12 (Murphy). The lower court ruled that these convictions would be admissible to impeach appellants’ credibility. N.T. 12/4/80, 24-28.

In Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), the Supreme Court listed five factors that should be considered in determining whether a prior conviction is admissible for impeachment. They are:

1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting hiip as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility.

Id., 482 Pa. at 39, 393 A.2d at 367.

In the footnote the Court added:

Id., 482 Pa. at 39 n. 4, 393 A.2d at 367 n. 4.

The lower court ruled that evidence of appellant Brunner’s prior conviction for burglary would be admissible primarily on the basis of factor four. In its opinion the court explains its ruling by saying, “In the situation before us, the prosecution’s case was premised almost entirely on the testimony of the defendant’s accomplice in crime, Alice Maxwell. If Alice Maxwell’s testimony was not believed by the jury the Commonwealth clearly would not have had a case.” Slip op. at 7.

We agree that factor four supports the lower court’s ruling. The Commonwealth’s case against appellant Brunner did depend on the credibility of Ms. Maxwell. Moreover, the conviction did impeach appellant Brunner’s credibility, for burglary is by definition accomplished by stealth, and it was only one year old. Appellant suggests that he could have been impeached by showing that “his recollection of the day in question was extremely vague as evidenced by his testimony at the pre-trial hearings,” Appellant’s Brief at 12 (Brunner), but it is doubtful how effective that would have been. We therefore find that the lower court did not abuse its discretion in ruling that evidence of the conviction would be admissible. Commonwealth v. Herman, 271 Pa. Superior Ct. 145, 412 A.2d 617 (1979) (year old conviction for burglary admissible to impeach defendant since Commonwealth’s case consisted of testimony of one witness and alibi was produced at trial).

For the same reasons we find that neither did the lower court abuse its discretion in ruling that evidence of appellant Murphy’s conviction for retail theft would be admissible. Although it is true that his convictions for robbery did not bear directly on his veracity, since robbery is a crime of force, see Commonwealth v. Roots, supra, 482 Pa. at n. 4, 393 A.2d at 367 n. 4, the Commonwealth did not seek to use those convictions, N.T. 12/4/80, 25, but rather sought to introduce only the conviction for retail theft, which would impeach credibility. We therefore need not consider the soundness of the lower court’s ruling that evidence of the robbery convictions would also have been admissible.

The last common argument is that the evidence was insufficient to support the burglary convictions. In deciding sufficiency, we must view the evidence in the light most favorable to the Commonwealth, since it won the verdict below. It is not our function, but the jury’s, to pass upon the credibility of the witnesses and to weigh their testimony. Commonwealth v. Lawton, 272 Pa. Superior Ct. 40, 414 A.2d 658 (1979). Thus viewed, the evidence is as follows:

Alice Maxwell testified that she had lived with appellant Murphy, and knew appellant Brunner because he was a friend of Murphy’s. N.T. 12/4/80, 60. She said that the three of them had burglarized a house on August 10, 1979, id. 61, and described in detail how they had cruised around looking for a suitable house, eventually choosing the Fries home, id. 62-64. She also testified that she and Murphy had remained in the car, and that Brunner, after hiding in the bushes around the house with a pillowcase, returned with a pillowcase full of a “jewelry box, camera, and a couple of guns.” Id. 65-70.

Ms. Maxwell also testified that she sold the camera equipment at Zern’s Market, using the name Debbie Souder, while appellant Murphy waited in the car. Id. 75-6. Mr. Zimmers, of Zern’s testified that he bought the camera from her. N.T. 12/5/80, 119.

Trooper Kline testified that a search of appellant Murphy’s home revealed the jewelry and the jewelry box taken from the Fries home. Id. 128. The jewelry box contained a social security card in Murphy’s name, and an identification card and a fishing license in the name of Christopher Souder. Id. 128-131.

The gist of appellants’ argument that this testimony was insufficient to support their convictions is that the Commonwealth’s case depended on the testimony of their accomplice, Alice Maxwell. (Appellant Brunner also points to the fact that he presented an alibi witness, one Marie Minotto, who testified that she was his girlfriend and that on the day of the burglary he was working in an ice cream parlor.) However, the uncorroborated testimony of an accomplice may be sufficient evidence to support a conviction, Commonwealth v. Cristina, 481 Pa. 44, 391 A.2d 1307 (1978), cert. denied, 440 U.S. 925, 99 S.Ct. 1255, 59 L.Ed.2d 479 (1979); Commonwealth v. Barnhart, 290 Pa. Superior Ct. 182, 434 A.2d 191 (1981), provided the jury is properly charged, Commonwealth v. Upshur, 488 Pa. 27, 410 A.2d 810 (1980) (error not to give accomplice charge where evidence against defendant was testimony of accomplice); Commonwealth v. Larew, 289 Pa. Superior Ct. 34, 432 A.2d 1037 (1981) (accomplice testimony must be scrutinized carefully and corrupt source charge given). Here, appellants do not argue, nor could they, that the jury was not charged on the corrupt source doctrine. N.T. 12/4/80, 190, 194—195. The jury was entitled to accept Ms. Maxwell’s testimony (and to reject Ms. Minotti’s). On that view, the evidence was sufficient to support the convictions.

Appellant Brunner argues that the lower court erred in denying his motion to sever. He claims that “the only testimony which inculpated the appellant was that of Alice Maxwell, a/k/a Debby Souder .... [and] [g]iven this situation, the appellant was prejudiced by the consolidation because the jury could reasonably assume that he was guilty ‘by association’ with his co-defendant.” Appellant’s Brief at 13 (Brunner). However, while it is true that the Commonwealth’s case against appellant Brunner rested on Ms. Maxwell’s testimony, see N.T. 12/5/80, 136 (Trooper Kline), this does not mean that the lower court abused its discretion in not granting a severance for appellant Brunner. Although prejudice to the defendant is an important consideration in deciding whether to grant a severance, see Commonwealth v. Tolassi, 489 Pa. 41, 49, 413 A.2d 1003, 1007 (1980), it is not an abuse of discretion to deny severance where the actions of the co-defendant were in concert and for one criminal purpose, and the same witnesses are involved. Commonwealth v. Norman, 272 Pa. Superior Ct. 300, 415 A.2d 898 (1979); Commonwealth v. Guess, 266 Pa. Superior Ct. 359, 376 n. 13, 404 A.2d 1330, 1338 n. 13 (1979); Commonwealth v. Garcia, 261 Pa. Superior Ct. 296, 396 A.2d 406 (1978). See also Commonwealth v. Iacino, 490 Pa. 119, 415 A.2d 61 (1980).

Appellant Murphy argues that the lower court erred (1) in denying his motion for a change of venue; (2) in denying his motion to suppress use of his alias; (3) in admitting into evidence several exhibits; and (4) in denying his motion for a mistrial. The opinion of the lower court adequately responds to the first three of these arguments, and we see no need to discuss them further. However, we have concluded that the lower court did err in denying appellant Murphy’s motion for a mistrial.

Appellant Murphy argues that he was entitled to a mistrial when Alice Maxwell testified that he had “jumped parole.” This testimony occurred under direct examination by the prosecutor:

BY MR. BAILEY:
Q. Miss Maxwell, what if any names did Mr. Murphy use, aside from Woodrow Wilson Murphy?
A. Christopher Souder.
Q. Did he ever tell you why he used that name? MR. EGOVILLE: Objection.
THE COURT: What is the objection?
MR. EGOVILLE: He is asking the witness for a conclusion, Your Honor.
THE COURT: He is asking the witness to give him a statement which was used by the defendant. The defendant is here. The objection is overruled.
MR. EGOVILLE: Maybe I misunderstood.
MR. BAILEY: I will restate the question for Mr. Ego-ville.
THE COURT: Read the question back.
THE REPORTER: (Reading) Did he ever tell you why he used that name? (End of Reading)
MR. EGOVILLE: I’m sorry, Your Honor.
THE COURT: You may answer the question.
THE WITNESS: Well, when we had first gotten the name was because—
THE COURT: Just what he told you.
THE WITNESS: Yes, because he had jumped parole previous to this.
MR. EGOVILLE: Your Honor, may I see you at side bar.
(The following conference was held between Court and Counsel at side bar.)
MR. EGOVILLE: Your Honor, certainly I was not aware of what kind of an answer was going to come out of that witness, but I strongly suspect—•
THE COURT: Mr. Egoville, I don’t want to hear suspicions. Are you making a motion?
MR. EGOVILLE: I am making a motion for a mistrial. THE COURT: The motion is disallowed. If that is what he told her she can testify to that. He told her why he was going to use that name.
MR. EGOVILLE: Your Honor—
THE COURT: Mr. Egoville.
MR. EGOVILLE: I understand.
(The side bar conference was concluded.)
N.T. 12/4/80, 80-83.

In its opinion, the lower court explains its ruling as follows:

Where there is a legitimate basis for the introduction of prior conviction evidence other than to show a predisposition to commit the crime evidence of a prior criminal conviction is admissable. Commonwealth v. Spruill, 480 Pa. 601 [391 A.2d 1048] (1978). The legitimate basis here was the explanation as to why the defendant used an alias. In Commonwealth v. Wojdakowski, 161 Pa.Super. 250 [53 A.2d 851] (1947). The Superior Court specifically held that it was permissible for the prosecution to show the circumstances under which the defendant assumed an alias. While unfortunately such an interrogation might infer prior criminal activity on the part of the defendant, this evidence sought is independently relevant toward proving the existence of the alias, the ascertainment of which is important to the Commonwealth’s case for purposes of establishing that the defendant committed the crime charged. The identity of the person who committed the crime is one of the stated exceptions to the general rule against the admissibility of evidence which would infer a prior conviction. Commonwealth v. Patterson [247 Pa.Super. 199], 372 A.2d 7 (1977).
In light of the above discussion, Alice Maxwell’s explanation of why the defendant assumed an alias was independently relevant testimony and did not give rise to a mistrial.
Slip op. at 7-8.

We cannot subscribe to this reasoning.

The lower court is correct in saying that there are occasions on which evidence of a defendant’s prior conviction is admissible. However, these occasions are narrowly limited. Evidence of a prior crime is admissible if it tends to prove: (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of crimes so related to each other that proof of one tends to establish the other, or (5) the identity of the person charged with the commission of the crime on trial, “in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.” Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981); Commonwealth v. Coleman, 289 Pa. Superior Ct. 221, 433 A.2d 36 (1981). The reason for these narrow limitations is the great prejudice that evidence of a prior conviction is “bound to create” in the minds of the jurors. Commonwealth v. Groce, 452 Pa. 15, 19, 303 A.2d 917, cert. denied, 414 U.S. 975, 94 S.Ct. 290, 38 L.Ed.2d 219 (1973). Accord, Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978) (“Evidence of prior criminal activity is probably only equalled by a confession in its prejudicial impact upon a jury.”); Commonwealth v. Stokes, 279 Pa. Superior Ct. 361, 421 A.2d 240 (1980) (prejudice so great it strips defendant of presumption of innocence).

The lower court seeks to fit Ms. Maxwell’s statement that appellant Murphy used an alias “because he had jumped parole previous to this” into the fifth exception, regarding the identity of the accused. In its support, the court cites our decision in Commonwealth v. Patterson, 247 Pa. Superior Ct. 199, 372 A.2d 7 (1977). However, on further appeal, the Supreme Court reversed our decision, Commonwealth v. Patterson, 484 Pa. 374, 399 A.2d 123 (1979), and it is clear from the Court’s decision that the fifth exception is not applicable to this case.

In Patterson, a majority of this court held that on a charge of rape, evidence that an earlier rape had occurred in the same area, at the same time of night, and had been perpetrated by a black man wearing sunglasses, was admissible to show that the accused, also a black man, was the person who committed the second rape. The dissenters, HOFFMAN, J., joined by JACOBS and SPAETH, JJ., pointed out dissimilarities between the two rapes and would have held the two crimes not sufficiently similar to be relevant to the identity of the perpetrator. Their view was that the fifth exception is available only when the crimes are so distinctive that they can be called “signature crimes.” On appeal, the Supreme Court followed the dissent’s reasoning and held the evidence of the earlier rape inadmissible, holding that the fifth exception “requires] something more than the commission of the same class of crime, such as theft, namely something unusual or distinctive ‘as to be like a signature.’ ” Id., 484 Pa. at 378 n. 6, 399 A.2d at 126 n. 6.

Here, the fact that appellant Murphy had been on parole before did not offer any “logical connection between the crimes” tending to prove that he was the person who committed the Fries burglary. We do not know from Ms. Maxwell’s statement either for what crime he was on parole, or the circumstances of that crime. Nothing “like a signature” appears. Her statement, therefore, could not possibly constitute evidence that would tend to prove that appellant Murphy was the perpetrator of the Fries burglary.

Since the statement does not fit into the fifth, or any other, exception to the rule against the admission of evidence of prior criminal activity, the issue becomes whether the jury could have reasonably inferred from it that appellant Murphy had engaged in prior criminal activity. Commonwealth v. Bowermaster, 297 Pa. Superior Ct. 444, 444 A.2d 115 (1982). This issue, however, need not detain us. Not only could the jury have reasonably inferred that appellant Murphy had been involved in prior criminal activity from the statement that he had “jumped parole.” There was nothing else the statement could mean.

Sometimes prejudice can be cured or warded off by prompt and decisive cautionary instructions. Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981); Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977). Here, no cautionary instructions were given. It is true that defense counsel did not request any, but he is not to be faulted for that. The lower court made plain, as the transcript we have quoted on page 719, supra, shows, that it saw no error in admitting the evidence, and for counsel to request cautionary instructions would have been futile. Furthermore, the evidence was of such a nature that cautionary instructions would not have cured the prejudice. Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979) (statement that defendant extradited to United States Penitentiary not curable); Commonwealth v. Spruill, supra (statement that witness had “buried a couple of bodies” for defendant not curable); Commonwealth v. Durant, 268 Pa. Superior Ct. 191, 407 A.2d 1311 (1979) (statement that witness did not know defendant “was out of jail” not curable).

The only remaining issue is whether the improper admission of Ms. Maxwell’s statement constituted harmless error. The law in this area is far from clear.

After observing that the determination of whether an error was harmless “is often made with little or no analysis,” the Supreme Court in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), set forth a two-step procedure by which this determination should be made:

A reviewing court first determines whether the untainted evidence, considered independently of the tainted evidence, overwhelmingly establishes the defendant’s guilt. If “ ‘honest, fair minded jurors might very well have brought in riot guilty verdicts,’ an error cannot be harmless on the basis of overwhelming evidence.” [Citations omitted] Once the court determines that the evidence of guilt is overwhelming, it then decides if the error was so insignificant by comparison that it could not have contributed to the verdict.

Commonwealth v. Story, 476 Pa. 391, 413, 383 A.2d 155, 166 (1978).

Having gone through this procedure, the reviewing court must be satisfied that “it is clear beyond a reasonable doubt that the error [was] harmless;” this conclusion is not to be arrived at lightly.” Id., 476 Pa. at 413, 383 A.2d at 166 (quoting Commonwealth v. Davis, 452 Pa. 171, 178-79, 305 A.2d 715, 720 (1973)).

However, the Supreme Court has not used this procedure to determine whether an error was harmless in cases involving references to prior criminal activity of the accused. For example, in Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978), decided after Story, the Court held that a motion for mistrial should have been granted when a Commonwealth witness stated that he had “buried a couple of bodies” for the accused. The Court stated that “[e]vidence of prior criminal activity (particularly of the type of conduct suggested by this statement) is probably only equalled by a confession in its prejudicial impact upon a jury.” Id. 480 Pa. at 606, 391 A.2d at 1050. In holding that the error was not harmless, the Court said:

We are satisfied that the result of this evidence was to unjustifiably blacken the character of the appellant in the minds of the jury and to show his propensity to commit the crime charged. We will not permit this type of testimony to overcome the presumption of innocence. Id., 480 Pa. at 607, 391 A.2d at 1050.

Justice LARSEN dissented on the harmless error point. He maintained that the evidence of the accused’s guilt was “overwhelming,” and stated that the evidence included two eyewitnesses, who were friends of the accused, and “ten other witnesses who supported this proposition of guilt.” Id., 480 Pa. at 607, 391 A.2d at 1051. He noted, too, that no witnesses had testified on the accused’s behalf. Without citing Story, he argued that the majority had failed to use the “balancing of evidence versus the error” test. Id. 480 Pa. at 607, 391 A.2d at 1051.

Later, in Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979), the Court again ignored Story’s two-step analysis. In Washington, a Commonwealth witness stated that he had extradited the accused from Leavenworth Penitentiary. The Court held that a motion for mistrial should have been granted on the basis of this statement, for it indicated to the jury that the accused had engaged in prior criminal activity. In holding that the error was not harmless, the Court did not discuss the other untainted evidence, but said:

The Commonwealth also urges that the testimony was harmless since the jury could have inferred Washington was in custody in Leavenworth Penitentiary on the present charges. One would be quite naive to subscribe to this argument. More importantly, in determining if the introduction of the challenged testimony constitutes reversible error, the controlling question is whether the jury could reasonably infer therefrom that the accused had engaged in other unrelated criminal activity. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1973). We have no doubt that this is such a case.

Id. 488 Pa. at 138, 411 A.2d at 492.

This was indeed the holding of Commonwealth v. Allen, supra, which stated that “the presumed effect of such evidence [of prior criminal activity] is to predispose the minds of the jurors to believe the accused guilty, and thus effectually strip him of the presumption of innocence,” id. 448 Pa. at 182, 292 A.2d at 375, quoting, Commonwealth v. Trowery, 211 Pa. Superior Ct. 171, 173-74, 235 A.2d 171, 172 (1967), which, of course, pre-dated Commonwealth v. Story, supra.

In these circumstances we are uncertain whether to follow Story’s two-step analysis or to follow Washington’s and Allen’s. No doubt in an appropriate case the Supreme Court will clarify the law. Meanwhile, as it happens, our uncertainty is of no consequence, for by either analysis, the error was not harmless.

If we follow Washington’s and Allen’s analysis, the issue is “whether the jury could reasonably infer therefrom [Ms. Maxwell’s testimony] that the accused had engaged in other unrelated criminal activity.” As we have already observed, there was nothing else the jury could have inferred.

If we follow Story’s analysis, we start by determining whether the untainted evidence was “overwhelming.” Here, the untainted evidence was Ms. Maxwell’s testimony implicating appellant, and the evidence that the stolen jewelry and jewelry box were found in the house where Ms. Maxwell and appellant lived. We cannot say that Ms. Maxwell’s testimony was “overwhelming” evidence; to characterize the testimony of an admitted accomplice—a “corrupt” or “polluted” source—as “overwhelming” would make no sense. Nor was her testimony made overwhelming by the evidence about the jewelry, for she and appellant shared the house where the jewelry was found; the location of the jewelry did not identify which occupant of the house had stolen it. “[Hjonest, fair minded jurors” might have rejected Ms. Maxwell’s testimony as that of an accomplice, and had they done so, they would have had to return a not guilty verdict, for the evidence about the jewelry by itself proved very little. Since the untainted evidence was not overwhelming, we never reach the second step of Story’s analysis.

Even if we did reach the second step, the result would be the same, for we could not say that “the error [in admitting her statement about appellant jumping parole] was so insignificant by comparison [with the other evidence] that it could not have contributed to the verdict.” The inquiry here would be similar to that made in Washington and Allen. The clearer or more egregious a reference, such as “I buried a couple of bodies for him,” the less likely it is that the reference was “insignificant.” Here, the reference that appellant “had jumped parole” was very clear indeed. Furthermore, the fact that he had “jumped” parole could only have been especially damaging, for it labeled appellant not only a convict, but a convict who took advantage of the liberty represented by parole.

As to appellant Brunner, the judgment of sentence is affirmed. As to appellant Murphy, the judgment of sentence is reversed and the case is remanded for a new trial.

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

CAVANAUGH, Judge,

concurring and dissenting:

I agree that the evidence as to “jumping parole” was unduly prejudicial and warrants the grant of a new trial for the appellant Murphy. In my view, however, it is illogical to grant a new trial to Murphy and to affirm the judgment of sentence of Brunner.

Under the Commonwealth’s evidence, both Murphy and Brunner were co-actors in the burglary. The primary evidence against both defendants was rooted in the testimony of Alice Maxwell. Neither defendant chose to testify following the lower court’s denial of their pre-trial motions to suppress their prior criminal convictions and therefore no evidence of their prior criminal convictions was admitted into evidence. In actual fact, however, the jury had before it additional evidence upon which to rely in convicting Murphy. The Commonwealth presented the physical evidence that the victim’s stolen jewelry box was found in Murphy’s residence.

In addition, albeit improperly, the jury had before it that Murphy had “jumped parole.” To determine that this single piece of improperly admitted evidence entitles Maxwell to a new trial and at the same time affirm the conviction of Brunner, which was based solely upon the testimony of Ms. Maxwell, is in my opinion illogical since it is totally unrealistic to assume that the taint of the Murphy evidence, that both properly and improperly admitted, did not carry over to his co-defendant’s criminal liability in the eyes of the jury.

      . The related theft offenses merged for sentencing purposes and sentence on the conspiracy convictions was suspended.

       Here the age of the prior conviction should be considered. Also the nature of the prior offense must be taken into account (e.g. a larceny accomplished by stealth or misrepresentation bears more directly upon veracity than a taking by force, thus the argument for admission is stronger for the former than the latter).

      . Mr. Fries testified that he had discovered these items missing from his home on August 10,1979, thus establishing the corpus delicti. Id. 43-46.

      . As to appellant Murphy, Ms. Maxwell’s testimony was not uncorroborated, since physical evidence—the missing jewelry and jewelry box—was discovered at his and Ms. Maxwell’s home.

      . Commonwealth v. Wojdakowski, 161 Pa. Superior Ct. 250, 258, 53 A.2d 851 (1947), cited by the lower court, would appear to support the lower court’s ruling, for it held that the witness’s statement that the defendant used an alias because “he say he’s on parole and he no want to go by that name” did not justify the removal of a juror. The court reasoned that the evidence of the defendant’s alias was vital to the Commonwealth’s case and not deliberately elicited. However, we believe that Wojdakowski has been overruled sub silentio by modern decisions, see discussion infra at 720-721, and was decided before the law regarding the admissibility of evidence of an accused’s prior criminal activity had been developed. See Commonwealth v. Boulden, 179 Pa. Superior Ct. 328, 116 A.2d 867 (1955) (discussing ALI suggestions regarding admissibility of evidence of prior criminal conduct and listing nine such exceptions to its admissibility, including when insanity is a defense and when the death penalty is a possibility).

      . In this respect, this case is different from Bowermaster, where the majority and dissent disagreed as to the clarity of the reference to prior criminal activity.

      . Another recent case following Allen’s and ignoring Story’s formulation is Commonwealth v. Nichols, 485 Pa. 1, 400 A.2d 1281 (1979). In that case, the reference involved the accused’s conduct at a line-up. The Court did not review the untainted evidence or decide if the error was insignificant, but said only, “Since the jury could reasonably have inferred Nichols was involved in other unrelated crimes from the evidence relating the March 30th lineup, prejudice resulted, and a new trial must be granted. Commonwealth v. Riggins, [478 Pa. 222, 386 A.2d 520 (1978), citing Allen with approval]; Commonwealth v. Banks, [454 Pa. 401, 311 A.2d 576 (1973)].” Id, 485 Pa. at 6, 400 A.2d at 1283.

      . We recognize the force of Judge CAVANAUGH’S position that appellant Brunner should likewise be granted a new trial, but we note that Brunner did not on this appeal raise the issue of the admissibility of the “jumped parole” testimony.


author: CAVANAUGH, Judge:

text:
    451 A.2d 724
    COMMONWEALTH of Pennsylvania, Appellant v. Dayle A. DUELL.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1981.
    Filed Oct. 8, 1982.
    Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellant.
    Carmela Presogna, Erie, for appellee.

      Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

This is a Commonwealth appeal from an order suppressing evidence obtained as the result of an automobile search. For the reasons discussed below, we reverse.

At approximately 11:45 p.m. on April 6, 1980, two police officers stopped an automobile operated by Richard MacBlain for making an illegal turn. Appellant, Doyle Duell, was a passenger in the front seat of the car. One of the officers testified that when Mr. MacBlain rolled down the driver’s window, he (the officer) detected an odor of burning marijuana inside the car. He then saw a partially full bottle of wine on the floor of. the car. Having determined that Mr. MacBlain was under the age of 21, the officer decided to cite him for underage drinking. The officer then reached into the car and pulled out a brown paper bag which was on the front seat next to appellant. Upon opening the bag, the top of which had been rolled down, the officer discovered what he believed to be marijuana. At that point, both Mr. MacBlain and the appellant were arrested. It was later established that the bag contained approximately 177 grams (6 oz.) of marijuana. Soon after the arrest, appellant volunteered a statement to the effect that the marijuana was his and that Mr. MacBlain should not be charged in connection with it.

Appellant was charged with the offense of possession with intent to deliver marijuana. He made a pre-trial motion to suppress both the marijuana seized from the car and the statement made to police admitting that the marijuana was his. A hearing was held on the motion, following which the lower court entered an order granting the motion and ordering the evidence suppressed. The Commonwealth then filed this appeal.

We feel that this case is controlled by the recent decision of the United States Supreme Court in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The court there held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant. The court stated that the scope of a warrantless search of an automobile “is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” 102 S.Ct. at 2172, 72 L.Ed.2d at 593.

In the instant case, the police officers, having legitimately stopped the automobile for a traffic violation, detected a strong odor of marijuana and observed an open wine bottle on the floor of the car. They had probable cause to believe that the car might contain further contraband in the form of marijuana or alcohol. Commonwealth v. Pullano, 295 Pa.Super. 68, 440 A.2d 1226 (1982); Commonwealth v. Stoner, 236 Pa.Super. 161, 344 A.2d 633 (1975). They were therefore justified in searching the interior of the car, including any containers which might reasonably be thought to contain such contraband. Under the holding in Ross, the seizure of the brown paper bag was not illegal.

It is true that, in holding as it did in Ross, the Supreme Court overruled its decision in the case of Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), under which the search made in the instant case may, indeed, have been illegal. As the Supreme Court pointed out in Ross, though, “it is clear that no legitimate reliance interest can be frustrated by our decision today.” 102 S.Ct. at 2172, 72 L.Ed.2d at 593. This is so because “[a]ny interest in maintaining the status quo that might be asserted by persons who may have structured their business of distributing narcotics or other illicit substances on the basis of judicial precedents clearly would not be legitimate.” 102 S.Ct. at 2172, n. 33, 72 L.Ed.2d at 593, n. 33.

Since the search conducted in the instant case, viewed in light of the most recent pronouncement of the United States Supreme Court, was not illegal, the evidence obtained as a result of the search need not be suppressed.

Order reversed.


author: ROWLEY, Judge:

text:
    451 A.2d 725
    In re Dianne Lynn SPENCER. Appeal of Mattie L. WITHERSPOON.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1982.
    Filed Oct. 8, 1982.

      James D. Wolman, Lancaster, for appellant.

      Carol Gundel Falk, Lancaster, for appellee.
    Robert David Bacher, Lancaster, for participating party.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   ROWLEY, Judge:

I.

Dianne Lynn Spencer was born September 12, 1977, the out-of-wedlock child of Estella Spencer and Richard Walton. When Dianne was ten months old, her mother married Samuel Witherspoon, the son of appellant Mattie A. Wither-spoon. In July of 1979, Dianne, Estella and Samuel moved in with appellant. When Estella and Samuel later moved out, Dianne was left in appellant’s care. On July 14, 1980, appellant filed a Petition for Adoption to adopt Dianne, pursuant to the Adoption Act of 1970, Act of July 24, 1970, P.L. 620, No. 208, 1 P.S. § 101 et seq. The Petition contained a consent to the adoption by Dianne’s natural mother and sought involuntary termination of the natural father’s parental rights. That same day, the court ordered an investigation by the Lancaster County Children and Youth Social Service Agency (the Agency). On December 12, 1980, the natural father’s parental rights were terminated. Also on that date Carol Gundel Falk, Esquire, the appellee in this case, was appointed as Dianne’s guardian ad litem.

An evidentiary hearing on the proposed adoption was held on January 16, 1981. While conceding that appellant loved and had adequately cared for Dianne, the Agency recommended against the adoption because “a much more suitable one could be provided by this or several other placement agencies in the area”.

In an Opinion dated July 20, 1981, the lower court denied appellant’s Petition for Adoption, citing the following reasons for its decision. The court concluded that the evidence presented concerning the current activities and lifestyle of appellant’s four youngest son, ages twenty, eighteen, seventeen and sixteen years, indicated a lack of “nurture and fulfillment” in the manner in which they had been raised. The court was concerned with the presence of appellant’s “paramour” of twenty years, a Mr. Opple, who is the father of her four youngest sons and who is presently renting a room from appellant. The court also concluded that there was an “aura of insecurity” in appellant’s home. This conclusion was apparently based on three facts: 1) the bedrooms of Mr. Opple and the teenage sons were kept locked, 2) meals usually consisted of only appellant and Dianne at the table and 3) appellant’s finances are entirely dependent upon governmental sources (social security and food stamps) and Mr. Opple’s rent payment. In addition to denying the Adoption Petition, the lower court awarded custody of Dianne to the Agency. It is that portion of the order dealing with custody which is at issue in this appeal.

Appellant raised two issues on appeal: 1) Whether, after an adoption petition has been denied, a court must follow the requirements of the Juvenile Act, Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. § 6301 et seq., before custody may be granted to a public child care agency?; and 2) Whether the record is adequate to support the court’s award of custody to the Agency?

II.

Section 502 of the Adoption Act of 1970 provides that when an adoption petition is denied, the Orphan’s Court is to enter “an appropriate order” in regard to the custody of the child. The Adoption Act provides no definition of what constitutes an “appropriate order”.

Appellant contends that in a situation involving the proposed adoptive parent versus a public child care agency, there must be a petition for dependency filed and the full procedural safeguards set out in the Juvenile Act must be followed before custody can be awarded to a child-care agency. Or, in the alternative, there must at least be evidence that the child is “dependent”, as defined in the Juvenile Act before granting custody to such an agency. We disagree.

The Juvenile Act focuses on the parent-child relationship and stresses the unity of the family. See 42 Pa.C.S.A. § 6301. First, we are not dealing with a parent-child relationship in this case. Appellant is not a parent, nor is she related by blood to Dianne. Appellant cites Stapleton v. Dauph. Co. Child Care Service, 228 Pa. Superior Ct. 371, 324 A.2d 562 (1974) to stand for the proposition that the Juvenile Act’s safeguards are not limited to cases in which natural parents are involved. Custody of the child in Stapleton originally had been given to the child care agency when the child was declared to be a dependent and removed from his parents under the Juvenile Act. The agency then placed the child with foster parents. When the agency attempted to return the child to its natural parents, the foster parents filed a petition for rehearing in Juvenile Court, under the Juvenile Act. This Court held that the Juvenile Court had jurisdiction to hear the Petition. However, it was further held that while the standards of the Juvenile Act applied to the contest between the state and the natural parents, they no longer applied when the contest was between the state and foster parents. Rather, the issue was to be decided based on the “best interest of the child”. 228 Pa.Superior Ct. at 387, 324 A.2d at 571.

The present case arose under the Adoption Act, which has its own purposes and powers, rather than the Juvenile Act. The introduction to the Adoption Act of 1970 indicates that it was meant to provide for the adoption of minors and adults and for the termination of certain parent-child relationships. It is not concerned with preserving family unity and no finding of dependency is necessary to terminate parental rights under the Act. Therefore, we will not imply the condition of a finding of dependency before the court can award custody to a child-care agency under § 502 of the Act.

III.

Although we have concluded that the Juvenile Act is not relevant to cases arising under the Adoption Act, we must agree with appellant that the record in this case is not sufficient to support the court’s award of custody to the agency.

The lower court has stated that its reasons for granting custody to the Agency are the same as its reasons for denying the adoption. In In Re: Hernandez, 249 Pa.Superior Ct. 274, 376 A.2d 648 (1977), this Court discussed the differing natures of an adoption order and a custody order. While an adoption order is final, a custody order is always subject to modification upon a showing of changed circumstances. Therefore, the burden on a third party seeking custody of a child should not be so heavy as when a third party seeks to adopt a child. 249 Pa.Superior Ct. at 283, 376 A.2d at 653.

While § 502 of the Adoption Act does not set out any guidelines to be followed in determining custody when an adoption has been denied, courts have uniformly applied the traditional child custody case analysis, i.e. the “best interest of the child”. In Re: Adoption of Farabelli, 460 Pa. 423, 433, 333 A.2d 846, 851 (1975). Here, the custody dispute is between two third parties, the step-grandmother and the state. In such a case, no distinction is made between related and non-related third parties. The burden of proof is allocated equally and the party who presents a preponderance of evidence will prevail. In Interest of Tremayne Quame Idress R., 286 Pa.Superior Ct. 480, 429 A.2d 40 (1981).

In cases involving the custody of a child, the lower court must provide the appellate court with a complete record. Rupp v. Rupp, 268 Pa.Superior Ct. 467, 408 A.2d 883 (1979). The only evidence presented at the hearing below concerned appellant and her suitability as an adoptive parent. We have already stated that different considerations are involved in evaluating an adoption petition and in determining custody. The fact that there may have been reason to deny the adoption does not necessarily mean that it would be in Dianne’s best interest to take her from appellant and place her in the custody of the Agency. The Agency presented no evidence at all concerning where Dianne would be placed. Its representatives merely stated their conclusion that “more suitable” homes were available. This is a conclusion for the Orphans’ Court Judge to make. He must have adequate information concerning the proposed alternative placement in order to determine whether such placement would be in Dianne’s best interest. Therefore, the Agency must be required to present evidence, not just opinion and conclusion, that it can provide a home that would be best for the welfare of Dianne.

In determining what is in Dianne’s best interest, the lower court must also consider the fact that the child has lived with appellant for almost three years, since she was two years old, and a strong bond of affection has formed between the two. There is growing concern among courts and child care experts that established relationships of young children not be disturbed. McCourt v. Meyers, 268 Pa.Superior Ct. 152, 407 A.2d 875 (1979); Pamela J.K. v. Roger D.J., 277 Pa.Superior Ct. 579, 419 A.2d 1301 (1980). A child above the age of two may become strongly attached to one who stands in a parental relationship and who has tenderly cared for her, so that to break the bonds of affection “may result not only in the the child’s unhappiness, but also in its physical injury”. Comm, ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 97, 66 A.2d 300, 306 (1949). Both sides should have the opportunity to present evidence as to the effect that a change of custody at this time would have on Dianne.

Therefore, we will remand this case for an evidentiary hearing in accordance with this opinion on the issue of custody.

Order affirmed as to the denial of the Petition for Adoption. Order granting custody to Lancaster County Children and Youth Social Service Agency is vacated and case remanded. Jurisdiction relinquished.

      . Appellant’s oldest son, twenty-eight years, was raised by her former husband.

      . However, pending appeal Dianne has continued to reside in appellant’s home.