author: BROSKY, Judge:

text:
    460 A.2d 767
    COMMONWEALTH of Pennsylvania, Appellant, v. Edward A. WALSH.
    Superior Court of Pennsylvania.
    Argued April 22, 1982.
    Filed April 22, 1983.
    Reargument Denied June 20, 1983.
    Petition for Allowance of Appeal Denied Nov. 4, 1983.

      Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellant.
    Eugene F. Jarrell, III, Media, for appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   BROSKY, Judge:

The Commonwealth appeals here from the suppression of the results of a test to measure the alcoholic content of appellee’s blood. Appellant contends that appellee’s consent to the test was voluntary and knowing. We agree and accordingly reverse the suppression order and remand.

Factual Background

The accident giving rise to the instant criminal prosecution occurred at approximately 11:30 p.m. on January 18, 1980 on the Commodore Barry Bridge. Appellee, Walsh, was observed driving at an estimated 70 miles per hour on the approach to the bridge, swerving past a car with only 15 feet to spare. On the bridge itself, he continued to weave in and out of traffic at an estimate 85 miles per hour. Walsh then crossed over an empty lane and hit the front fender of Deborah Reitz’s car as it came from the opposite direction. Walsh’s car continued on for several hundred feet, hit the guard rail and came to a stop. Reitz’s car ended up facing the direction from which it had come, its front left side and hood smashed in. Deborah Reitz, aged 26, was pronounced dead at the scene, having suffered multiple head injuries.

Walsh, a 48 year-old man, received facial lacerations and broken ribs and was taken to Crozer Chester Medical Center. A passing motorist who stopped to render assistance did not smell alcohol on Walsh’s breath or observe any indicators of intoxication. At the hospital, Walsh’s condition was evaluated by a Dr. Gorrell. At the suppression hearing, he testified that Walsh was “awake, coherent and oriented”; that he observed no “neurological deficit”; that there was no indication of a concussion; that there was no sign that Walsh didn’t understand what was being said to him; and that appellee stated that he had not been unconscious as a consequence of the accident.

Patrolman Sirisky of the Delaware River Port Authority police went to the hospital and was told by Dr. Gorrell that Walsh was in a physical condition that allowed conversation with him. Sirisky stated at the suppression hearing that his subsequent conversation with Walsh occurred in the following sequence. First, Sirisky gave appellee a Miranda warning and was told by Walsh that he understood those rights. Second, he informed Walsh that someone was killed in the accident in which he had been involved. Third, he questioned appellee and heard Walsh’s account of the accident. Fourth, the consent form for the alcohol in blood test was explained by Sirisky to appellee. Fifth, Sirisky was present when Walsh signed the consent form and then signed it as a witness himself. The blood sample was then taken from appellee.

Patrolman Sirisky also testified at the suppression hearing that appellee was not under arrest when the blood sample was taken; that at that time Walsh was not suspected (for lack of any knowledge about how the accident had occurred), of having committed a crime or of having violated the Motor Vehicle Code; that he didn’t smell any alcohol on appellee’s breath or observe that he was under the influence of alcohol.

A few days later, appellee was arrested and held for court following a preliminary hearing. Informations were then filed on the following charges: Involuntary Manslaughter; Reckless Driving; Driving Vehicle at Unsafe Speed; and Speeding. Appellee pleaded not guilty and filed a motion to suppress the blood test results on the ground that his consent was involuntary in that he did not know that the blood test results were to be used in his criminal prosecution. Following a suppression hearing on June 9, 1980, the court below granted the motion to suppress. The District Attorney took a timely appeal from that order.

Appealability

The threshold issue in this case is the appealability, prior to a trial and conviction, of the suppression order. Quite recently the test to be applied in determining whether a particular suppression order is interlocutorily appealable by the prosecution has been changed. Commonwealth v. Lapia, 311 Pa.Superior 264, 457 A.2d 877 (1983) (en banc). The current form of the standard is: “... an order suppressing evidence is appealable when it is apparent from the record that the order terminates or substantially handicaps the prosecution.” Commonwealth v. Lapia, supra, 311 Pa.Superior at 364, 457 A.2d 877.

We find that this standard has been met here and the suppression order is appealable. There being no living witness to the accident itself (other than appellee), the results of the blood test are quite obviously an important element of the prosecution’s case. While the absence of the blood test might not terminate the prosecution, we have no hesitation in concluding that it would at least work a substantial handicap.

Scope of Review and Burden of Proof

The proper scope of appellate review for a case of this type was defined in Commonwealth v. Curtis, 253 Pa.Super. 163 at 170, 384 A.2d 1280 at 1284 (1978).

In reviewing the lower court’s determination that appellee did not voluntarily and knowingly consent to a blood alcohol test, we must consider the evidence adduced at the suppression hearing in the light most favorable to appellee and must give appellee the benefit of all reasonable inference arising from the evidence.

When the evidence is viewed by the appellate court in the manner described above, it must establish the validity of the consent.

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.

Bumper v. North Carolina, 391 U.S. 543 at 548, 88 S.Ct. 1788 at 1792, 20 L.Ed.2d 797 (1968). The Pennsylvania Rules of Criminal Procedure echo this placement of the burden of proof on the prosecution.

The Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant’s rights.

Pa.R.Crim.Proc. 323(h).

Arrest
That the taking of blood is a search and seizure subject to the protections of the Fourth Amendment was firmly established in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

Commonwealth v. Davenport, 453 Pa. 235 at 240, 308 A.2d 85 at 87 (1973). See also Commonwealth v. Funk, 254 Pa.Super. 233 at 241, 385 A.2d 995 at 999 (1978). Thus, we must determine whether the blood was taken from appellee in accordance with Fourth Amendment requirements.

One method of validating this type of search is its occurrence incident to lawful arrest. “And, under certain circumstances, this includes intrusion into a person’s body for blood to be analyzed for alcoholic content.” Commonwealth v. Murray, 441 Pa. 22 at 25, 271 A.2d 500 at 501 (1970). See also Commonwealth v. Brown, 225 Pa.Super. 289 at 293, 302 A.2d 475 at 477 (1973). The “circumstances” referred to above are those establishing probable cause for a blood test search.

The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.

Schmerber v. California, 384 U.S. 757 at 769-70, 86 S.Ct. 1826 at 1835, 16 L.Ed.2d 908 (1966).

However, this avenue cannot be used to legitimate the instant search. Patrolman Sirisky testified that appellee was not under arrest and that there was no probable cause for arrest or to believe that appellee was intoxicated. Further, appellant’s brief concedes that this is the case and relies on appellee’s consent to establish the propriety of the search. We agree that the record does not establish that, at the time the blood was taken, that appellee was under arrest or that there was probable cause for arrest or for a blood test search.

Since no warrant authorized the search, the only remaining method of validating the search is the one appellant argues occurred—a valid consent.

Consent

One method of validating a search is consent. Zap v. United States, 328 U.S. 624 at 628, 66 S.Ct. 1277 at 1279, 90 L.Ed. 1477 (1964). See also Commonwealth v. Anderson, 208 Pa.Super. 323 at 329, 222 A.2d 495 at 498 (1966). Thus, the legal issue upon which the result in this case will turn is the validity, vel non, of the consent given by Walsh.

Appellee contends that his consent was invalid because, when the consent was given, he did not know that the results of the test would be used as evidence in a criminal prosecution rather than for medical treatment purposes. Our analysis will proceed in a two-step fashion.

First, we will consider whether appellee’s theory of an invalid consent is legally correct. We conclude that the argument he advances is theoretically sound and would dispose of the case in his favor if the facts of the case made it applicable here.

Second, the facts of record will be examined to ascertain whether that type of invalid consent was present here. We find that it was not. The consent being valid, the suppression order is reversed.

I.

In considering appellee’s theory of an invalid consent, the starting point is what constitutes a valid consent. Namely, the consent must be voluntarily given. Further, “The issue of whether consent has been voluntarily given is a question of fact which must be determined in each case from the totality of the circumstances.” Commonwealth v. Watkins, 236 Pa.Super. 397 at 399, 344 A.2d 678 at 679 (1975).

In 1973, the United States Supreme Court handed down its opinion in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. Schneckloth established that it was not necessary to advise the subject of the search of his right to refuse to consent. Schneckloth, supra, at 232, 93 S.Ct. at 2049-50. Also,

While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.

Schneckloth, supra, at 228, 93 S.Ct. at 2048.

At this point, it is important to observe that the issue before us is quite distinct from that in Schneckloth. To say, as did Schneckloth, that one need not necessarily know of his right to refuse is not the equivalent of holding that one need not know that what is being consented to is a search for criminal prosecution purposes, and not a test for medical treatment purposes.

Thus, our decision here is not inconsistent with Schneckloth or other U.S. Supreme Court interpretations of the Fourth Amendment. However, even if it were, it is always our prerogative to circumscribe governmental action more severely than the Federal Courts. In this précise context, the Ninth Circuit Court of Appeals has said: “Constitutional rights may be protected by a state-court system which has developed its own method of testing the voluntariness of consent.” Tremayne v. Nelson, 537 F.2d 359 (9th Cir., 1976). Justice Eagen wrote: “However, the state has the power to impose standards on searches and seizures higher than those required by the Federal Constitution. See Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).” Commonwealth v. Harris, 429 Pa. 215 at 219 n. 2, 239 A.2d 290 at 292 n. 2 (1968).

There is ample case law regarding the voluntariness of confessions. Some of it is relevant to our enquiries.

Consent must at least be freely given to be effective. This means there must be a total absence of duress or coercion, express or implied...

Commonwealth v. Harris, supra, 429 Pa. at 221, 239 A.2d at 293. See also Commonwealth v. Burgos, 223 Pa.Super. 325 at 329, 299 A.2d 34 at 37 (1972).

Further, it is well established that the consent may not be gained through stealth, deceit or misrepresentation, and that if such exists this is tantamount to implied coercion.

Commonwealth v. Wright, 411 Pa. 81 at 85, 190 A.2d at 709 at 711 (1963).

If, indeed, appellee was not given any reason to believe that the test results would be used for criminal prosecution purposes, a violation of the mandate against deceit and misrepresentation would have occurred.

Other cases support the view that a consent can be invalidated if the consenter did not understand what it was he was consenting to. In reviewing consents, pertinent factors have been “the education, intelligence and experience of the consenter...” and thus “if ... defendant’s background indicates his understanding of investigating procedures...” Commonwealth v. Dressner, 232 Pa.Super. 154 at 158, 336 A.2d 414 at 416 (1975). See also, Commonwealth v. Dixon, 226 Pa.Super. 569, 323 A.2d 55 (1974), U.S. v. Watson, 423 U.S. 411, 423 at 425, 96 S.Ct. 820 at 828, 46 L.Ed.2d 598 (1976). Any degree of “understanding of investigating procedures” would not be brought to bear if he had no notice that the blood test being consented to was part of a criminal investigation.

Another line of cases will also prove helpful here. Even after the 1973 Schnecfcloth decision, cases in this Commonwealth continued to require that consents be “intelligent” and/or “knowing.” Commonwealth v. Funk, supra, 254 Pa.Super. at 239, 385 A.2d at 998; Commonwealth v. Taylor, 237 Pa.Super. 212, 352 A.2d 137 (1975). Commonwealth v. Curtis, supra, 253 Pa.Super. at 170, 384 A.2d at 1284. These cases did not contest the holding of Schneckloth. Therefore, if the inclusion of those words is to be viewed as having any meaning at all, it would be to require at least a minimal sense of awareness of what was going on, vis-a-vis, the consent. Such a minimal sense of awareness would undoubtedly include an apprehension of some relatedness to a criminal investigation.

This conclusion is supported by the case of Commonwealth v. Curtis, supra, 253 Pa.Superior at 170, 384 A.2d at 1284.

In sum, appellee was unable, physically or mentally, to understand the meaning of a consent to a blood test.

The Rhode Island Supreme Court also addressed this issue in a somewhat different factual context. In ruling the consent invalid because the purpose of what was consented to was not apparent, the court negated in notes two potential areas of conflict.

What we must determine is whether, by admitting Officer Sullivan into his apartment to use the telephone, defendant consented as well to the entry for the purpose of arresting him.
When seeking to justify a search or seizure on consent grounds, the state must prove that the consent was “freely and voluntarily given.” See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, 802 (1968); Palmigiano v. Mullen, R.I., 377 A.2d 242, 246 (1977). It seems to us that consent to enter one’s home to make a routine felony arrest cannot be deemed free or voluntary unless the person said to be consenting is aware of the purpose for which the police seek to enter. See United States v. Phillips, 497 F.2d 1131, 1135 n. 4 (9th Cir.1974). The notion of a free and voluntary consent necessarily implies that the person knows what it is he is allowing the police to do.

State v. Bailey, 417 A.2d 915 at 918-9 (R.I.1980).

Shortly after Schneckloth, our State Supreme Court issued its decision in a case on point with the issue before us.

It is obvious that appellant’s holding out his arm, without being told either the authority for the doctor’s actions or the purpose for which the blood sample was being taken, constituted mere acquiescence, and not a knowing and intelligent waiver of defendant’s Fourth Amendment rights.

Commonwealth v. Davenport, supra, 453 Pa. at 242, 308 A.2d at 88. However, this opinion commanded only a plurality of three Justices, with an additional three concurring in the result. This has necessitated the above analysis of other case law. When the plurality opinion is viewed in the light of those other cases, the soundness of its conclusion becomes all the more apparent.

Therefore, we conclude that if appellant can establish that he had no notice of the criminal investigative purpose of the blood test, his consent would be invalid.

II.

While appellee’s theory is sound, the facts of this case make that theory inapplicable to him. Using the proper standard of review, it is clear that the suppression court erred. The prosecution met its burden of proof regarding the voluntariness of the consent.

Appellee was given ample notice that the blood test results would be used for criminal investigation purposes. Indeed, Patrolman Sirisky’s actions were exemplary. As noted above, he first determined from the examining physician that Walsh was conscious and alert. This was followed by a Miranda warning, information about the fatality, questioning and finally an explanation of the consent form. Only then did appellee sign the consent form.

In the face of this uncontradicted testimony, we have no hesitation in concluding, as a matter of law, that appellee’s consent to the blood test was valid. The order suppressing the results of the blood test is accordingly reversed. This case is remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

WIEAND, J., concurs in result.

      . This item comes from Dr. Gorrell’s testimony at the suppression. It was neither contradicted nor addressed by the Patrolman's testimony.

      . 18 Pa.C.S.A. § 2504.

      . § 3714 Motor Vehicle Code.

      . § 3361 Motor Vehicle Code.

      . § 3362 Motor Vehicle Code.

      . Thus, Commonwealth v. Martz, 259 Pa.Super. 201, 393 A.2d 787 (1978), is overruled and it is no longer necessary for the Commonwealth to allege and treat the termination or substantial handicap. Though it is now moot under the new standard, the Commonwealth did make such an allegation and treatment here.

      . The Commonwealth asserts that a forensic pathologist would have extrapolated the blood test results to a 0.09% to 0.1% level at the time of the accident. Appellant’s brief goes on to state: “Dr. Catherman would also testify that based on this estimated blood alcohol level, the defendant’s motor abilities would have been substantially impaired at the time of the accident.” There was also an assertion about testimony that a two truck operator and a paramedic would give that would purportedly be barred if the blood test results were not admitted. While these matters would have been considered under the previous test for appealability (as long as they were not inconsistent with the record), Commonwealth v. Kunkel, 254 Pa.Super. 5, 385 A.2d 496 (1978), they are not of record and therefore cannot be considered under the Lapia standard. Appellant’s brief was filed well before the decision in Lapia came down, so the inclusion of this material was not an error on appellant’s part.

      . With the absence of probable cause, a warrant would not have been valid in any event.

       We are not here dealing with a situation in which an undercover police officer obtains consent to enter a person’s home by deception (that is concerning his true identity) and subsequently arrests the person who allowed him to enter. There is no constitutional infirmity in such a situation. See Lewis v. United States, 385 U.S. 206, 208-09, 87 S.Ct. 424, 426, 17 L.Ed.2d 312, 315 (1966).

       This is not to say that defendant must have been aware of his right to refuse the police entry. Schneckloth v. Bustamante, 412 U.S. 218, 234, 93 S.Ct. 2041, 2051, 36 L.Ed.2d 854, 867 (1973).

      . The fact that the wording of the form was that of a standard medical consent form, rather than one printed for the precise purpose for which it was used, does not vitiate all of the other factors giving appellee notice.

      . We do not imply that all of these procedures would be necessary to provide a minimally sufficient level of notice. We merely conclude that this combination of actions was undoubtedly sufficient.


source: Caselaw Access Project

author: SPAETH, Judge: JOHNSON, Judge,

license: Public Domain

text:
    460 A.2d 773
    Ruth BROWN v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1983.
    Filed April 29, 1983.

      Charles W. Craven, Philadelphia, for appellant.
    Stephen T. Shaffer, Philadelphia, for appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   SPAETH, Judge:

This is an appeal from an order denying a petition to open or strike a default judgment. On May 20, 1981, appellee filed a complaint in trespass against appellant seeking damages for injuries that she allegedly sustained when she fell at one of appellant’s stores on September 22, 1980. On July 14, 1981, the lower court entered a default judgment against appellant. The record discloses that appellant did not receive notice of the pendency of the action prior to the entry of the default judgment, and also, that neither it nor its insurance carrier received the notice prescribed by Pa.R. Civ.P. 237.1 of appellee’s intention to enter the default judgment. In these circumstances it was an abuse of discretion to deny the petition to open the default judgment. We therefore reverse.

In order to prevail on a petition to open a default judgment entered in a trespass action, the petitioner must file the petition promptly, and must offer a reasonable explanation for the failure to defend the action. Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Brooks v. Surman Dental Lab, Inc., 262 Pa.Super. 369, 396 A.2d 799 (1979). Appellee concedes that the petition was filed promptly. Brief for Appellee at 6. Given that we will reverse a denial of a petition to open judgment only upon a showing that the lower court abused its discretion, see, e.g., Forest Hills Transfer & Storage Co. v. Beaver Valley Builders, 271 Pa.Super. 566, 414 A.2d 628 (1978); Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979), the only question before us is whether in holding that appellant did not offer a reasonable explanation of its failure to defend the action, the lower court abused its discretion.

-1-

The lower court made no findings of fact as to whether appellant had received either the complaint or the notice of appellee’s intention to enter a default judgment. Without these facts, however, the court could not decide whether appellant had offered a reasonable explanation for its failure to defend the action. It was therefore the lower court’s responsibility to make findings.

In other circumstances we might remand for findings, but here remand would be an empty gesture; if on remand the lower court were to find that appellant had received the complaint or the notice, we should set aside the findings because, as will appear from our ensuing discussion, the findings would not be supported by the record. See, e.g., Lawner v. Engelbach, 433 Pa. 311, 249 A.2d 295 (1969). See generally Thompson v. Equitable Life Assurance Society, 447 Pa. 271, 276, 290 A.2d 422, 424 (1972) (Appellate court may make its own findings of fact where “record is clear”); Innes v. Nanticoke City School District, 342 Pa. 433, 20 A.2d 225 (1941) (same).

-2-

The lower court found that the complaint was served on Vincent Char, the manager of appellant’s store at Wayne and Chelten Avenue, Slip op. at 3, but held in effect that it was irrelevant to the propriety of the default judgment whether the complaint had been received at appellant’s corporate headquarters. Said the court: “Defendant averred that neither it nor its adjusters had any knowledge or information with respect to service of the complaint. [Footnote:] This allegation does not make much sense, since the complaint was admittedly duly served on the defendant.” Slip op. at 1.

The difficulty with this reasoning is that it does not follow from the fact that the complaint was “duly served” on an employee of appellant, that appellant received actual notice that a suit was pending against it. The absence of actual notice that a complaint has been filed may be sufficient to require an order opening a judgment. In Campbell v. Heilman Homes, Inc., 233 Pa.Super. 366, 335 A.2d 371 (1975) {en banc), we reversed an order denying a petition to open a default judgment on the ground that the inadvertence of one of the petitioner’s employees had prevented actual notice of the suit from being received at the petitioner’s corporate headquarters. The sequence of events was as follows. After purchasing a mobile home from Heilman Homes, Inc., Wilbur and Clara Campbell brought suit against Heilman on the ground that the home was defective. The complaint was served on one of Heilman’s lot managers, Delbert Marvin, who failed to follow the standard procedure of forwarding all important papers to corporate headquarters. Before Marvin’s replacement forwarded the complaint to Heilman’s headquarters, a default judgment was entered against Heilman. In reversing the lower court’s order denying Heilman’s petition to open the judgment, we reasoned as follows:

This is not a case wherein failure to answer was a planned tactical decision. See Myers v. Mooney Aircraft, Inc., 429 Pa. 177, 240 A.2d 505 (1967); Kanai v. Sowa,, 109 Pa.Super. 426, 167 A. 429 (1933). This is rather a case dealing with an unintentional omission to act. Our court has held that where failure to answer was due to an oversight, an unintentional omission to act, or a mistake of the rights and duties of the appellant, the default judgment may be opened. Samuel Jacobs Distributors, Inc. v. Conditioned Air, Inc., 223 Pa.Super. 466, 301 A.2d 907 (1973). See Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970).
The failure of appellant to respond to the complaint was occasioned by the inattentiveness of its employee. While we may not be in agreement with appellant’s method of insuring that important papers reach their corporate appointed destination, we will not saddle it with a default judgment in this case. The mistake in the present case is not unlike a clerical error, which has been held to constitute sufficient legal justification to open a default judgment. Johnson v. Yellow Cab Company of Philadelphia, 226 Pa.Super. 270, 307 A.2d 423 (1973). 233 Pa.Super. at 370, 335 A.2d at 373.

The events that led up to appellant’s failure to receive the complaint are distinguishable from those involved in Campbell only in that appellant’s employee, Char, was, according to his testimony, less inattentive than the employee upon whom the complaint was served in Campbell. Char, apparently unlike Marvin, attempted to forward the complaint to his employer’s headquarters. He testified without contradiction that he addressed the complaint to Jim Varian, who was “in charge of the whole Personnel Department,” by means of “int[ra] company mail,” i.e., by putting the complaint in a large sealed bag that was then placed in a locked box, outside the store, from which Purolator pick-ups were made. Deposition of Char at 5-7. Thus, appellant presents a stronger argument for reversal than that which was held sufficient in Campbell.

Appellee argues that McClain v. Penn Fruit, Inc., 241 Pa.Super. 303, 361 A.2d 403 (1976), requires us to hold in its favor, but McClain is a different case from this one. In McClain the store manager—who was the same Vincent Char as is involved here—denied ever being served with the complaint. The sheriff’s return, however, showed that he had been served. We held that “the fact of service [was therefore] unassailable,” and that the petitioner’s mere allegation of a “ ‘mixup’ or ‘technical oversight’ ... with [n]o further explanation” was insufficient to support the order opening the judgment. Id., 241 Pa.Superior at 306, 361 A.2d at 404. Here, appellant did not merely allege a mix-up, and give no further explanation. Instead it proved facts showing that despite being forwarded to corporate headquarters, the complaint was never received. Appellant introduced uncontradicted testimony that if the complaint had been received at appellant’s headquarters in King of Prussia, it would have been routed to Daniel J. Boyle, Personnel Administrator; that Boyle did not recall seeing the complaint, but he had searched his files and those of the Customer Relations Department, “where it could conceivably have ended up,” for a copy of the complaint, to no avail. Deposition of Boyle at 15. It is of course true that appellant did not directly prove why the complaint was never received, but the circumstantial proof—the inference from the direct proof—is that the delivery service lost it. If the delivery service were operated by appellant’s own employees, it might be said that the loss was appellant’s fault. However, it appears that the service was an independent carrier, which, after picking up mail, took it to its own “depot or headquarters, and from there it is then redistributed to A & P, and the proper stores, offices, et cetera.” Deposition of Boyle at 13.

-3-

One further aspect of the case must be discussed, for it is important to our conclusion that in refusing to grant the petition to open judgment, the lower court abused its discretion. Rule 237.1(a) provides:

Rule 237.1 Notice of Praecipe for Entry of Default Judgment
(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.

The record shows, however, that appellant never received any notice of appellee’s intention to enter default judgment, and that this fact was not appellant’s but appellee’s fault.

Appellant’s address is stated on the complaint as being “30th & Market Streets” in Philadelphia. The docket entries show that the complaint was filed on May 20, 1981. By that date, appellant had not been at 30th & Market Streets for a year; it had moved its headquarters to King of Prussia, in Montgomery County, in May 1980. Deposition of Boyle at 9, 13. When the complaint was filed, counsel for appellee by letter dated May 20, 1981, wrote the deputy sheriff, instructing him to “transfer the Complaint in Trespass in the above matter to the district where it can be served upon the Defendant,” adding in a postscript: “Please serve at: A & P, Wayne & Chelten Avenue, Phila., Penna.” This letter at least indicates that appellee’s attorney knew that appellant had moved away from 30th and Market Streets; for if appellee’s attorney had thought that appellant was still at 30th and Market Streets, the address indicated on the complaint, there would have been no reason to make these requests. However, when the notice of intention to enter a default judgment was sent—according to counsel’s secretary, on June 30, 1981—the secretary sent it, neither to appellant’s headquarters at King of Prussia, nor to its store at Wayne & Chelten, but to 30th and Market Streets. Deposition of Palange at 3-4. As a result, appellant never received the notice. Because it had moved from 30th & Market Streets more than a year ago, the Post Office had stopped forwarding appellant’s mail on a regular basis, although it did, at irregular intervals of four, six, or even eight weeks, forward such mail as had accumulated. Deposition of Boyle at 9, 16-17. Boyle testified without contradiction that had the notice been received, it would have been routed to him, but that he had not received it, and that it was not to be found in his files or those of the Customer Relations Department. Deposition of Boyle at 10-11; 13; 15. Thus, as of Boyle’s deposition, in October 1981, the notice had never been received. Id. at 13.

The purpose of Rule 237.1 is to assure that default judgment is not entered without prior notice to the defendant. See Explanatory Note, (citing Brooks v. Surman Dental Lab, Inc., supra, (Absence of notice of intention to enter a default judgment justifies opening judgment); Silverman v. Polis, 230 Pa.Super. 366, 326 A.2d 452 (1974) (same)). See also Moyer v. Americana Mobile Homes, Inc., 244 Pa.Super. 441, 368 A.2d 802 (1976) (same). Since cases opening a default judgment because the complaint was never received advance the same purpose, they are instructive in construing and applying the Rule.

In Minetola v. Samacicio, 399 Pa. 351, 160 A.2d 546 (1960), the Supreme Court affirmed an order discharging a rule to show cause why the judgment in an equity action should not be opened on the ground that the petitioner had failed to establish a valid defense on the merits. The Court was careful to note, however, that the fact that the petitioner had not been a resident at the home of her parents where service was made for four months before the date of service “would tend to establish ‘equitable considerations which impress this Court with the need for relief,’ even though the testimony was weak and inconsistent as to the time when defendant received notice of complaint, [footnote omitted].” Id., 399 Pa. at 354, 160 A.2d at 547. We followed this reasoning in Quatrochi v. Gaiters, 251 Pa.Super. 115, 380 A.2d 404 (1977), on similar facts. In Quatrochi, appellee had forwarded notice of the complaint to an address at which appellant no longer lived, despite actual knowledge that appellee had moved from that address. We stated that where the defendant “never received service of process and did not know that a lawsuit had commenced,” a “reasonable explanation for his failure to respond” was shown. Id., 251 Pa.Superior at 121-22, 380 A.2d at 407.

Appellant has provided a stronger argument for opening the judgment on the ground that the notice was mailed to the wrong address than that which the Court found persuasive in Minetola. First, appellant had moved from the address where the notice was mailed over a year prior to the mailing, whereas the petitioner in Minetola had only moved four months prior to service. Next, when sent to the wrong address, appellant’s mail was routed to the Post Office, which by then had stopped forwarding mail on a regular basis. And finally, appellant’s testimony was not “weak and inconsistent as to the time when [it] received notice of the complaint,” but was clear and uncontradicted.

-4-

A petition to open a default judgment is an appeal to the court’s equitable powers. Balk v. Ford Motor Co., supra; Brooks v. Surman Dental Lab, Inc., supra. In determining whether the lower court abused its discretion in denying appellant’s petition to open a default judgment, we examine all of the facts.

Even if we discredit Char’s testimony and assume that he failed to follow the standard procedure for forwarding mail to appellant’s headquarters, the remaining fact that the complaint was not received at appellant’s headquarters weighs in appellant’s favor. See Campbell v. Heilman Homes, Inc., supra.

In addition, appellee’s attorney’s failure to send the notice of intent to enter a default judgment either to the store where the complaint had been served or to appellant’s more-than-a-year-old address in King of Prussia, weighs in appellant’s favor. See Minetola v. Samacicio, supra; Quatrochi v. Gaiters, supra.

When we examine the entire case, we are satisfied that appellant has offered a reasonable explanation for its failure to defend, and that in refusing to accept that explanation, the lower court abused its discretion.

Reversed.

JOHNSON, J., files a concurring statement.

JOHNSON, Judge,

concurring:

I would reverse the order denying appellant’s petition to open or strike the default judgment solely on the basis that notice of entry of the default judgment, pursuant to Pa.R. C.P. 237.1 was improper. The evidence indicates that plaintiff mailed the said notice to the incorrect address, which plaintiff knew was incorrect and which notice was not timely received by appellant.

      . An order opening a default judgment in a trespass action need not rest upon a showing that the petitioner has a valid defense on the merits. See, e.g., Balk v. Ford Motor Co., supra; Kraynick v. Hertz, supra; Brooks v. Surman Dental Lab, Inc., supra.

      . We do not reach the question whether appellee fulfilled the requirement of Rule 237.1 in mailing notice of her intent to enter a default judgment to appellant’s prior address.


author: HESTER, Judge:

text:
    460 A.2d 778
    COMMONWEALTH of Pennsylvania v. Frank J. MILEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 3, 1982.
    Filed April 29, 1983.
    Petition for Allowance of Appeal Denied Dee. 19, 1983.

      Warren R. Hamilton, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   HESTER, Judge:

Appellant, Frank.J. Miley, was charged on March 17,1980 with possession with intent to deliver a controlled substance; manufacturing and possessing with intent to manufacture, or deliver a controlled substance; and, intentionally possessing a controlled substance. He was found guilty of all charges following a non-jury trial in the Court of Common Pleas of Philadelphia County, Pennsylvania, and sentenced to a total term of imprisonment of not less than three (3) nor more than ten (10) years in a State Correctional Institution.

On March 17, 1980, Officer Raymond Stackhouse of the Philadelphia Police Department, received a telephone call from a confidential informant identifying appellant as the processor and seller of methamphetamine in a three story row house at 3831 Haverford Avenue, Philadelphia. Furthermore, the informant described appellant as a Negro male, age 45, 6 feet tall, the owner and operator of a blue and white 1975 Buick Electra and the frequent adorner of cowboy boots and cowboy hat. Finally, he informed Officer Stackhouse that appellant planned to move his methamphetamine lab that day, March 17, 1980.

Before securing a search warrant, Officers Stackhouse and Dougherty, in plain-clothed attire, surveyed the row house from inside their parked, unmarked vehicle. Appellant was observed leaving the house; however, upon detecting the surveillance vehicle, his suspicions were apparently aroused and he retreated to the inside of the house. When appellant poked his head outside the front door a short while later, the officers approached him.

Both officers ascended the three steps leading directly from the sidewalk, running parallel to the street, to the threshold of appellant’s row house. The exterior front door was open; consequently, the officers unobstrusively stepped into the hallway vestibule to shelter themselves from the rain and converse with appellant. The methamphetamine odor was detected at that point.

The officers informed appellant that they planned to secure the residence and obtain a search warrant. They entered the first floor apartment from the interior doorway leading from the vestibule. Once inside, Officer Stackhouse called his supervisor, Lieutenant John Wilson, who, upon arrival, instructed Officer Stackhouse to obtain a search and seizure warrant for appellant’s premises. Officer Stackhouse departed to do so.

Three other officers arrived to join Lieutenant Wilson and Officer Dougherty in securing the premises. Officer Stack-house did not return with the search warrant for two and one-half hours; nevertheless, in the meantime, the officers at the scene obtained a key to a door at the end of the vestibule hallway leading to the second and third floors and discovered the chemicals, filters, flasks, tinfoil, bottles, face masks, scales, tubes, alcohol and other accessories used in processing methamphetamine. This paraphernalia was removed following Stackhouse’s arrival with the search warrant.

Following his conviction of the aforementioned crimes, appellant’s motions for a new trial and arrest of judgment were denied. This appeal is taken from the judgment of sentence.

Appellant first alleges that no probable cause existed for the issuance of the search warrant. He avers that the issuing magistrate had no knowledge of how the informant acquired his information of appellant’s alleged illicit activity. Furthermore, according to appellant, Officer Stack-house’s detection of the methamphetamine odor was not an element of probable cause, because it was made following an unlawful intrusion into appellant’s house. We disagree.

The United States Supreme Court, in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), promulgated a two-pronged test for determining the constitutionality of a search warrant issued on grounds supplied by a confidential informant. Prior to defining and applying the test, however, the Aguilar court first noted that a magistrate’s finding of probable cause for a search warrant requires evidence of a less persuasive character than that upholding a police officer’s independent, and less impartial, determination of probable cause. Judicial determination of probable cause simply merits more deference from the reviewing court. Where the search warrant affidavit contains allegations not within the affiant-police officer’s personal knowledge, the two-pronged test becomes operative. A magistrate’s finding of probable cause will not stand unless he is “informed of (1) some underlying circumstances from which the informant concluded that the narcotics were where he claimed they were [; and, (2)] some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was credible or his information reliable.” Id. at 378 U.S. 114 and 115, 84 S.Ct. at 1514. The issuing authority here, then, should have been apprised of the informant’s basis for concluding that appellant possessed and processed methamphetamine, and of Officer Stackhouse’s reasons for believing the informant to be credible and reliable. See Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 445 A.2d 1214 (1982); Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335 (1980); Commonwealth v. Kaschik, 235 Pa.Super. 388, 344 A.2d 519 (1975).

Since the search warrant affidavit contained no information detailing the method by which the confidential informant learned of appellant’s drug processing or plans to move his lab, the first prong of the Aguilar test was satisfied only if the tip described appellant’s criminal activity in sufficient detail to indicate that it emanated from something more than mere rumor or appellant’s reputation. Commonwealth v. Salvaggio, 307 Pa.Super. 385, 453 A.2d 637 (1982); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). During cross examination at the suppression hearing, Officer Stackhouse, the affiant, responded to defense counsel’s inquiries as follows:

Q. Do you know how the informant came to the conclusion that Frank Miley was manufacturing this methamphetamine?
A. Did I come to the conclusion as to how he knew this information?
Q. Yes.
A. No.
Q. Did he tell you?
A. I don’t recall if he stated exactly how he knew this information.
N.T., July 20, 1981, p. 81.

This portion of the suppression hearing quite unequivocally reveals that the issuing authority did not know how the informant came to know the appellant’s illicit acts; therefore, we look to the affidavit for the actual tip itself. It reads accordingly:

On Monday, 3-17-80, the assigned, did receive information from an informant who, in the past six months, has given this officer information that has resulted in three arrests with narcotics being confiscated on all three occasions.
This informant did call me at approximately 11:00 a.m. on March 17, 1980, and did state that a male known to him as Frank Miley, approximately 45 years, Negro male, who lived at 3831 Haverford Avenue was selling and processing methamphetamine from his residence located at 3831 Haverford Avenue. He also stated that Frank had been making meth all weekend and was planning to move his lab on Monday, along with all of the meth he had been making. He then described to me the subject of the warrant as being approximately six feet tall with a beard and frequently wore a cowboy hat and the cowboy boots and that he drove a 1975 Buick Electra, white top with dark blue body and the tag being AGU839.

Officer Stackhouse testified at the suppression hearing that the description of appellant’s appearance and the identification of his residence and vehicle were precise and accurate; nevertheless, we do not believe that portion of the affidavit to be necessarily indicative of criminal activity. Descriptions of appellant’s physical appearance, residence and motor vehicle could have been gleaned from non-implicative occurrences at the workplace and myriad social gatherings. Moreover, the statement that appellant processed methamphetamine the entire previous weekend and planned to move his laboratory on March 17, 1980 does not provide the sufficient detail required by Spinelli, supra, and Salvaggio, supra. The Salvaggio informant disclosed his frequent purchase of cocaine and marijuana from the defendant. The informant here was a known methamphetamine consumer; however, it was not known whether appellant was his supplier or whether he had ever seen appellant’s methamphetamine laboratory.

We agree, therefore, with appellant to the extent that the affidavit neither disclosed the informant’s source of his information nor sufficiently described appellant’s criminal activity, but this accord does not end our review of the first prong of the Aguilar test. Where an informant’s report does not establish probable cause, but is corroborated by independent observation, the issuance of a search warrant becomes constitutionally justified. Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974); Commonwealth v. Norwood, 456 Pa. 330, 319 A.2d 908 (1974); United States v. Acarino, 408 F.2d 512 (2d Cir.1969), cert. den., 395 U.S. 961, 89 S.Ct. 2101, 23 L.Ed.2d 746 (1969).

Here, Officers Stackhouse and Dougherty conducted an independent surveillance of appellant’s house at 3831 Haverford Avenue during the late morning hours of March 17, 1980. They observed the Buick Electra, bearing the precise color combination and license plate number disclosed by the informant, parked immediately in front of appellant’s house. Eventually, a middle-aged, Negro male, 6 feet tall, sporting a beard and donning cowboy boots and hat exited the house; however, upon eye contact with the officers, he hastily returned inside. Shortly thereafter, the officers approached the exterior doorway and stepped into the vestibule where Officer Stackhouse immediately diagnosed the methamphetamine odor. An account of this independent surveillance was disclosed in the search warrant affidavit.

Prior to the arrest of March 17, 1980, Officer Stack-house had been assigned to the Narcotics Unit for six and one-half years and had confiscated methamphetamine pursuant to arrests or investigations on over two hundred occasions. Moreover, he had seen clandestine methamphetamine laboratories, similar to that found inside appellant’s house, on four or five occasions prior to the arrest date. Clearly, there was convincing evidence of Stackhouse’s ability to accurately detect methamphetamine through his sense of smell. We conclude that the independent observations made subsequent to the informant’s telephone call, but before the preparation of a search warrant affidavit, authenticated and expanded the informant’s information. The officer’s own actions and discovery provided enough information for the issuing authority to find an underlying basis for the informant’s tip; hence, the first prong of the Aguilar test was satisfied. Additionally, the detection of the methamphetamine odor was not made following an unlawful intrusion into appellant’s house. It was made while the officers stood inside a common passageway with a closed door along the left vestibule wall leading to the first floor apartment, and a closed door at the far end of the vestibule leading to the second and third floor apartments.

We need not consider the second prong, i.e., the basis for finding appellant reliable and credible, since appellant does not challenge it here. We state only that appellant would have fruitlessly pursued such a claim anyway; the informant was the source of previous state’s evidence leading to three separate arrests.

Secondly, appellant contends that his warrantless arrest was not based on probable cause. Where an accused is detained without an arrest warrant by an officer’s brawn, weapon or display of authority, Fourth Amendment safeguards become acute. Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), cert. den., 454 U.S. 883, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981); 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). Our own Supreme Court in Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), cert. den., 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980), reviewed whether a warrantless arrest in an accused’s home is violative of the Fourth Amendment search and seizure clause. In recognition of the opinions of our various federal circuit courts, the Williams court held that an arrest warrant is a prerequisite to a valid arrest inside the accused’s home, unless exigent circumstances dictate otherwise. In determining whether exigent circumstances exist in any given factual situation, the following factors are useful: 1) the gravity of the offense involved; 2) the reasonable belief that the suspect is armed; 3) reasonably trustworthy information that the suspect committed the crime involved; 4) strong reason to believe that the suspect is on the premises; 5) likelihood that the suspect will escape if not quickly apprehended; and, 6) peaceable entry. Williams, supra, quoting, Dorman v. United States, 140 App.D.C. 313, 435 F.2d 385 (1970).

The application of these factors weighs in favor of finding the warrantless arrest constitutional. Admittedly, the likelihood that appellant was armed does not justify a warrantless arrest. No testimony was elicited demonstrating the officers’ suspicions that appellant carried a weapon. On the other hand, the gravity of the offense was severe. The manufacture, or possession with intent to manufacture or deliver here was a felony punishable by imprisonment not exceeding fifteen years or a fine not in excess of two hundred fifty thousand dollars ($250,000), or both. 35 P.S. § 780-113(f)(l).

Furthermore, the information accumulated prior to the arrest was reasonably trustworthy. The confidential informant had disclosed information on three occasions prior to appellant’s arrest, resulting in three separate arrests and the confiscation of narcotics on all three occasions. The officers’ independent surveillance of appellant, his home and motor vehicle, confirmed the informant’s accuracy in describing appellant’s race, physical stature, age, attire, address and vehicle model, year, color and tag number. The plausibility of the informant’s description of appellant’s beard and cowboy hat and boots was particularly noteworthy. Most significant was Officer Stackhouse’s detection of the methamphetamine odor before actual entry into appellant’s private living area. As alluded to earlier, this odor was not alien to him.

Next, it was indisputable that appellant was inhabiting the residence at 3831 Haverford Avenue. Afterall, appellant was seen leaving the house, re-entering it, and poking his head outside the vestibule. Leaving the scene for the acquisition of an arrest warrant intensifies the likelihood that a suspect will escape, particularly in light of his apparent awareness of the surveillance. Finally, the entry into the vestibule and the first floor rooms was peaceable. Appellant confronted the two officers in the vestibule, no weapons were drawn nor forced entry utilized; there was no further evidence of the use of physical force to detain appellant. We conclude, therefore, that the aforementioned factors necessitate a finding of exigent circumstances underlying the warrantless arrest.

Insofar as there was no testimony that he actually possessed or inhabited the second and third floors, appellant argues that there was insufficient evidence of his possession of methamphetamine. In determining whether the evidence was sufficient to sustain the conviction, all evidence must be viewed in favor of the Commonwealth’s position and all reasonable inferences drawn from the evidence must support the verdict-winner. Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981).

The confiscated methamphetamine and laboratory equipment were not taken from appellant’s person; therefore, nothing supports a finding of actual possession. Constructive possession of controlled substances arises, and sustains a conviction, where the accused has the power and intent to control the substances. Commonwealth v. Ferguson, 231 Pa.Super. 327, 331 A.2d 856 (1974); Commonwealth v. Davis, 444 Pa. 11, 280 A.2d 119 (1971).

The real estate deed and public utility invoices for the entire building reflected appellant as the title owner; no evidence of any other person’s presence was discovered; and, the key to the door leading to the second and third floors was taken from the first floor which appellant indisputably inhabited at the time of arrest. The power to control the upper two floors was supported by the evidence.

The intent to control a controlled substance is demonstrated by knowledge of its presence. Ferguson, supra; Commonwealth v. Armstead, 452 Pa. 49, 305 A.2d 1 (1973). There was no direct evidence that appellant knew the methamphetamine laboratory was on the third floor; consequently, we look to the surrounding circumstances for an inference of knowledge. Commonwealth v. Cash, 240 Pa.Super. 123, 367 A.2d 726 (1976). Where it appears that only the accused has access to the area where the drugs were found, intent to possess is established. Commonwealth v. Hannan, 229 Pa.Super. 540, 331 A.2d 503 (1974). We find no evidence, nor does appellant allege, that anyone else had access to any portion of the row house. Viewed in a light most favorable to the Commonwealth, evidence of intent to control the methamphetamine sustained a finding of constructive possession.

Having found probable cause for the issuance of a search warrant, it is not necessary to address appellant’s remaining argument of no probable cause for a warrantless search.

Judgment of sentence affirmed.

      . At the suppression hearing, Officer Stackhouse testified that the odor was detected on the top step outside the exterior front door. N.T. January 20, 1981, p. 13. An issuing magistrate may not consider evidence outside the four corners of the affidavit [Pa.R.Crim.P. 2003(a) ]; certainly, an attempt to supplement the affidavit at a suppression hearing must be denied.


author: WIEAND, Judge:

text:
    460 A.2d 784
    COMMONWEALTH of Pennsylvania v. Robert Kelsey HUBBLE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1982.
    Filed April 29, 1983.
    Petition for Allowance of Appeal Denied Oct. 12, 1983.

      Carl E. Barlett, Williamsport, for appellant.
    Kenneth D. Brown, District Attorney, Williamsport, for Commonwealth, appellee.
    Before WIEAND, BECK and MONTEMURO, JJ.
   WIEAND, Judge:

On August 5, 1976, Mrs. Claire Kepner and her two small children were found murdered in their home near Muncy in Lycoming County. All had been shot with a .32 caliber gun, and the abdomen of one child had been repeatedly slashed with a knife. Robert Hubble was tried jointly with Milton Scarborough and was found guilty of burglary, robbery, theft, conspiracy and three counts of murder in the first degree. On direct appeal from judgments of sentence imposed after post verdict motions had been denied, Hubble asks that we review and find error in the trial court’s refusal to grant his request for a trial continuance and various evidentiary rulings made during trial. He also contends that the trial court erred by denying a motion for new trial on the grounds of after-discovered and recanting testimony. Our review discloses neither error nor valid reason for setting aside the verdict of the jury. Therefore, we affirm the judgment of sentence.

The evidence showed that on the evening of the killings, Robert Hubble, his brother, David, Milton Scarborough, and John Shafer, together with Colin Brown and some others, had gathered at Ricky Snyder’s “shack” in rural Lycoming County. Scarborough, Shafer and the Hubble brothers obtained ten dollars from Colin Brown and left in David Hubble’s car to buy some beer. They purchased a case of beer at a bar in Muncy and rode around the countryside, drinking beer. During the course of their ride, appellant suggested “hitting a place” and randomly selected a residence where he instructed Scarborough, who was driving, to pull into the driveway. Scarborough and the Hubble brothers got out of the car, leaving Shafer behind as lookout, and entered the dwelling where Claire Kepner lived with her children. After they had returned and driven away, according to Shafer’s testimony, appellant handed a pistol to his brother and told him to put it in the glove compartment. They purchased additional beer with money taken from the Kepner home and returned to the “shack.” There, David Hubble made various statements, heard by Snyder, Brown and Shafer, in which he recounted the killing of Mrs. Kepner and her children. He said that it had been necessary to kill them in order to get their money. He also made reference to playing “tic-tac-toe” on the stomach of one of the children. Appellant, who was present, heard his brother and told him to “shut the f_up.” The following night, Shafer and Brown encountered David Hubble at the Step Inn in Montgomery, Lycoming County. David again referred to the Kepner “job.” Appellant, his brother, grabbed him and angrily told him: “Keep quiet or I’ll kill you.”

Appellant was arrested and taken into custody on July 13, 1977, following a lengthy investigation of the killings by police. Counsel was appointed for appellant on July 28, 1977. A change of venue was subsequently granted, and the case was transferred to Lebanon County for trial. On October 27, 1977, an order was entered granting pre-trial discovery, and a pre-trial conference was held on November 5, 1977. Trial was set for November 14, 1977. A motion for continuance to permit additional investigation was denied, and trial commenced before the Honorable G. Thomas Gates on the day assigned.

A trial court has broad discretion in determining whether a continuance shall be granted. Commonwealth v. Metzger, 498 Pa. 678, 680-82, 450 A.2d 981, 983 (1982); Commonwealth v. Wolfe, 301 Pa.Super. 187, 192-93, 447 A.2d 305, 308 (1982); Commonwealth v. Volk, 298 Pa.Super. 294, 303, 444 A.2d 1182, 1186 (1982); Commonwealth v. Kittrell, 285 Pa.Super. 464, 467, 427 A.2d 1380, 1381 (1981); Commonwealth v. Andrews, 282 Pa.Super. 115, 123, 422 A.2d 855, 859 (1980). Absent a manifest abuse of discretion, which results in prejudice to the defendant, the trial court’s decision will not be reversed on appeal. Commonwealth v. Eackles, 286 Pa.Super. 146, 152, 428 A.2d 614, 617 (1981); Commonwealth v. Waters, 276 Pa.Super. 584, 590-591, 419 A.2d 612, 615 (1980); Commonwealth v. Palmer, 273 Pa.Super. 184, 190, 417 A.2d 229, 232 (1979). See: Commonwealth v. Wolfe, supra 301 Pa.Super. at 192-93, 447 A.2d at 308.

Appellant’s counsel had 2>lh months to prepare for trial following his appointment. His investigation was supplemented by the efforts of counsel for appellant’s accomplices, by local counsel in Lebanon County and by several private investigators. Although averring “real prejudice” by not being able to follow all “leads” or conduct pre-trial interrogation of all potential witnesses, appellant has been unable to identify specifically any evidence that was undiscovered or any other prejudice because of the denial of his motion for continuance. There was neither a witness that was unexamined nor a defense that remained unpresented. In the absence of specific prejudice, appellant contends that the longer period available to the Commonwealth for investigation and the greater manpower available to participate therein renders the denial of his motion inherently unfair. We reject this argument.

In Commonwealth v. Eackles, supra, the defendant had been charged with 38 counts of forgery and 31 counts of theft. A motion for continuance was denied and trial commenced 55 days after the defendant’s arrest. In response to his complaint that a denial of his motion for continuance had resulted in too prompt a trial, this Court said:

“We perceive no valid reason for holding such preparation time inadequate per se____ Significantly, appellant has failed to specify in what manner he was unable to prepare his defense or what he could have done by way of preparation if given more time. In the absence of a showing of prejudice, therefore, we perceive no abuse of discretion and decline to reverse the trial court’s denial of the defense motion for continuance.”

Id. 286 Pa.Super. at 152, 428 A.2d at 617. See also: Commonwealth v. Volk, supra; Commonwealth v. Palmer, supra; Commonwealth v. Waters, supra. Despite the seriousness of the crimes with which appellant was charged, the absence of prejudice suggests most strongly that the denial of his motion for continuance was not an abuse of discretion.

The trial court received evidence, over defense objections, of extra-judicial statements made by David Hubble on the evening of the killings and again on the following night. On both occasions, appellant responded by telling his brother emphatically to be quiet. The trial court permitted this evidence on grounds that the statements had been made during the continuance of the conspiracy. Appellant contends that this was error.

For purposes of this appeal, we find it unnecessary to determine whether the statements were admissible as statements made in furtherance of a conspiracy. We must affirm the trial court’s ruling if there was any valid reason for receiving this evidence. See: Commonwealth v. Walton, 483 Pa. 588, 596, 397 A.2d 1179, 1183 (1979); E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610, 613 n. 4, 381 A.2d 441, 443 n. 4 (1977); Commonwealth v. O’Donnell, 472 Pa. 25, 27 n. 3, 370 A.2d 1209, 1209 n. 3 (1977); Commonwealth v. Hines, 461 Pa. 271, 273 n. 3, 336 A.2d 280, 282 n. 3 (1975); Commonwealth v. Dancer, 460 Pa. 95, 101 n. 5, 331 A.2d 435, 438 n. 5 (1975); Commonwealth v. Wise, 298 Pa.Super. 485, 492 n. 2, 444 A.2d 1287, 1290 n. 2 (1982).

We conclude, after having reviewed the record, that the statements of David Hubble were admissible against appellant as tacit admissions. The rule of evidence applicable to tacit or implied admissions was set forth by our Supreme Court in Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464 (1955), as follows:

“The rule of evidence is well established that, when a statement made in the presence and hearing of a person is incriminating in character and naturally calls for a denial but is not challenged or contradicted by the accused although he has opportunity and liberty to speak, the statement and the fact of his failure to deny it are admissible in evidence as an implied admission of the' truth of the charges thus made. The justification of this rule is to be sought in the age-long experience of mankind that ordinarily an innocent person will spontaneously repel false accusations against him, and that a failure to do so is therefore some indication of guilt.”

Id., 381 Pa. at 523, 113 A.2d at 476. See also: Commonwealth v. Coecioletti, 493 Pa. 103, 113-114, 425 A.2d 387, 392 (1981); Commonwealth ex rel. Smith v. Rundle, 423 Pa. 93, 98, 223 A.2d 88, 90 (1966). The tacit admission rule is circumscribed by Fifth Amendment guarantees against self-incrimination. Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967). See: Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 223 A.2d 296 (1966). However, this limitation is applicable only to admissions implied from silence while an accused is in the custody or presence of the police or other law enforcement personnel. It does not preclude the receipt of tacit admissions resulting from a failure to deny accusations made while the accused was not in custody and when no police were present. ■ Commonwealth v. Coecioletti, supra 493 Pa. at 113-114, 425 A.2d at 392; Commonwealth v. Schmidt, 452 Pa. 185, 204-205, 299 A.2d 254, 265 (1973).

The statements by David Hubble were made in the presence of appellant at the “shack” on the same night of the killings and also on the following evening. Neither David nor Robert was then in custody, and no police were present. Not only did appellant not deny his brother’s incriminating statements, but he told him in no uncertain terms to be quiet. David Hubble’s accusations and appellant’s responses thereto constituted implied admissions by appellant, and the trial court did not err by receiving them in evidence.

Appellant argues also that he should have been awarded a new trial because of irrelevant testimony received from John Bickel, <who testified' that he had seen David Hubble with a knife during July, 1976, and from Chief of Police Wayne Farrar, who said he had taken David Hubble and his wife home from the Step Inn on August 8, 1976. Bickel’s testimony was offered and received without objection. The admissibility of his testimony, therefore, has not been preserved for appellate review. Commonwealth v. Berrios, 495 Pa. 444, 453-454, 434 A.2d 1173, 1178 (1981); Commonwealth v. Kuterbach, 458 Pa. 318, 322, 326 A.2d 283, 283 (1974); Commonwealth v. Raymond, 412 Pa. 194, 202-203, 194 A.2d 150, 154 (1963), cert. denied, 377 U.S. 999, 84 S.Ct. 1930, 12 L.Ed.2d 1049 (1964); Commonwealth v. Ransom, 240 Pa.Super. 92, 95, 360 A.2d 721, 723 (1976); Commonwealth v. Butler, 232 Pa.Super. 283, 291, 331 A.2d 678, 682 (1974). For similar reasons, appellant cannot complain of the admission of Chief Farrar’s brief testimony. Appellant objected only once during this witness’ testimony. That objection, directed toward the witness’ repeating a statement by David Hubble that he had been in a fight, was sustained. No other relief was requested. Under such circumstances, we need not consider the balance of the witness’ testimony; nothing has been preserved for review. See: Commonwealth v. Hill, 479 Pa. 346, 388 A.2d 689 (1978); Commonwealth v. Glenn, 459 Pa. 545, 330 A.2d 535 (1974); Commonwealth v. Hart, 272 Pa.Super. 189, 414 A.2d 1071 (1979).

The admissibility of photographs during a trial is committed to the sound discretion of the trial court. In the absence of an abuse of that discretion, the trial court’s rulings will not be disturbed. Commonwealth v. McCutchen, 499 Pa. 597, 603, 454 A.2d 547, 549 (1982); Commonwealth v. Woodward, 483 Pa. 1, 6, 394 A.2d 508, 511 (1978); Commonwealth v. Petrakovich, 459 Pa. 511, 521, 329 A.2d 844, 849 (1974); Commonwealth v. Connors, 311 Pa.Super. 553, 559, 458 A.2d 190, 193 (1983); Commonwealth v. Kaster, 300 Pa.Super. 174, 177-79, 446 A.2d 286, 288 (1982). There was no abuse of discretion in the instant case. The trial court received in evidence and permitted the jury to examine photographs of the interior and exterior of the Kepner home and of the car allegedly used by the killers. These photos were innocuous. None was inflammatory. None depicted the victims. All showed more clearly than words the location of the crimes and the car allegedly used. Their admission did not require the grant of a new trial.

Almost two years after appellant had been found guilty, he filed a separate motion for new trial on the grounds of after-discovered evidence. Hearings were held on February 13 and 14, 1980 before the Honorable G. Thomas Gates and the Honorable John A. Walter; on June 11, 1980, findings of fact were entered, and argument was ordered on all pending post verdict motions. All motions were subsequently denied.

The law applicable to after-discovered evidence has been stated in Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981), as follows:

“ ‘After discovered evidence will warrant the granting of a new trial only if the evidence (1) was unavailable at the time of trial despite counsel’s due diligence to obtain it, (2) is not merely cumulative or offered only to impeach credibility, and (3) is likely to compel a different result.’ (Citations omitted). Furthermore, unless there has been a clear abuse of discretion, the trial court’s denial of appellant’s motion for a new trial based on after-discovered evidence will not be disturbed.” (Citation omitted).

Id., 494 Pa. at 199, 431 A.2d at 218. See also: Commonwealth v. Hugney, 491 Pa. 222, 229, 420 A.2d 422, 426 (1980); Commonwealth v. Valderrama, 479 Pa. 500, 505, 388 A.2d 1042, 1045 (1978); Commonwealth v. Coleman, 438 Pa. 373, 376-377, 264 A.2d 649, 651 (1970); Commonwealth v. Johnson, 291 Pa.Super. 566, 588, 436 A.2d 645, 657 (1981); Commonwealth v. Borelli, 288 Pa.Super. 319, 322, 431 A.2d 1067, 1069 (1981); Commonwealth v. Crawford, 285 Pa.Super. 169, 186, 427 A.2d 166, 175 (1981).

Appellant’s principal argument on appeal is that the post verdict court rejected the recanting testimony of Ricky Snyder. Recanting testimony is exceedingly unreliable, and it is the duty of a trial court to deny a new trial where it is not satisfied that such testimony is true. An appellate court will not reverse an order denying a new trial on the basis of recanting testimony unless there has been an abuse of discretion. Commonwealth v. Gaddy, 492 Pa. 434, 438, 424 A.2d 1268, 1270 (1981); Commonwealth v. Starks, 484 Pa. 399, 412, 399 A.2d 353, 359 (1979) (plurality opinion); Commonwealth v. Nelson, 484 Pa. 11, 13, 398 A.2d 636, 637 (1979); Commonwealth v. Lee, 478 Pa. 70, 75, 385 A.2d 1317, 1320 (1978); Commonwealth v. Sanabria, 478 Pa. 22, 33, 385 A.2d 1292, 1297 (1978); Commonwealth v. Coleman, supra, 438 Pa. at 377, 264 A.2d at 651; Commonwealth v. Bernstein, 309 Pa.Super. 573, 577, 455 A.2d 1232, 1234 (1983); Commonwealth v. Dohner, 295 Pa.Super. 342, 347, 441 A.2d 1263, 1266 (1982) (plurality opinion).

Snyder testified at trial that he had overheard the statements made by David Hubble concerning the killings and the responses of the alleged accomplices. It was this testimony which he subsequently wished to recant. Brown and Shafer had heard the same statements; they did not recant. Brown said that he had been “brain-washed” by the police and, in February, 1980, did not have a recollection of the statements and responses to which he had testified. However, he did not say that his trial testimony had been false. Shafer did not recant. With respect to his trial testimony, appellant called prison inmates at the February, 1980 hearing to testify that Shafer had made statements in prison which were allegedly inconsistent with his trial testimony. The trial judge, who had the opportunity to see and hear these witnesses, found that their testimony did not warrant the grant of a new trial. He found Snyder’s recanting testimony incredible and rejected it. He found that Brown had testified truthfully at trial and that Shafer’s prison statements about the presence of other persons at the murder scene, which could be used only to attack the credibility of his trial testimony, had been fully explained and were not inconsistent with testimony given at trial. The trial judge also found incredible and rejected the testimony of Thomas Whitman, a convicted burglar who had served time with Robert Hubble at Camp Hill and with David Hubble at Dallas, who said that a prisoner whom he had met at Camp Hill said he had been involved in the killings and that the Hubble brothers had had nothing to do with it. The trial judge explained fully his reasons for rejecting all of this testimony. Our review fails to disclose any abuse of the trial judge’s discretion. See: Commonwealth v. Parker, supra; Commonwealth v. Sanabria, supra; Commonwealth v. Coleman, supra.

The judgment of sentence is affirmed.

      . Milton Scarborough was convicted of robbery, burglary, theft, conspiracy and three counts of murder in the third degree.

      . 18 Pa.C.S. § 3502(a).

      . 18 Pa.C.S. § 3701(a).

      . 18 Pa.C.S. § 3921(a).

      . 18 Pa.C.S. § 903(a).

      . 18 Pa.C.S. §§ 2501, 2502(a).

      . The Commonwealth’s evidence showed that the car was registered in the name of Hubble’s mother, Mary Ranck.

      . John Shafer entered pleas of guilty to burglary, robbery and conspiracy and testified as a Commonwealth witness against the other conspirators.

      . David Hubble was tried separately and convicted of burglary, robbery, theft, conspiracy and three counts of murder in the second degree.

      . John Shafer testified that he saw the Hubbles at the Step Inn the night after the killings. Colin Brown thought that the encounter took place two nights after the killings.

      . To be admissible as a co-conspirator’s statement, the statement must have been made during the continuance of the conspiracy and in furtherance of its criminal purpose. Commonwealth v. Dreibelbis, 493 Pa. 466, 475, 426 A.2d 1111, 1115 (1981); Commonwealth v. Coccioletti, 493 Pa. 103, 111, 425 A.2d 387, 391 (1981); Commonwealth v. Robinson, 298 Pa.Super. 447, 451, 444 A.2d 1260, 1262 (1982); Commonwealth v. Tumminello, 292 Pa.Super. 381, 388, 437 A.2d 435, 439 (1981). When the conspiracy has come to an end, statements made thereafter are not admissible. Commonwealth v. Ransom, 446 Pa. 457, 463, 288 A.2d 762, 764 (1972); Commonwealth v. Ellsworth, 421 Pa. 169, 186, 218 A.2d 249, 258 (1966); Commonwealth v. Robinson, supra 298 Pa.Super. at 451-452, 444 A.2d at 1262-1263. See: Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980); Commonwealth v. Cofer, 257 Pa.Super. 528, 390 A.2d 1363 (1978).

      . Although the trial court received the extra-judicial statements of David Hubble as statements made in furtherance of a conspiracy, the court en banc, in refusing appellant’s post verdict motion for new trial, held that the statements were admissible as tacit admissions.

      . The statements on the following evening contained no details of the robbery or killings. The witnesses could not recall the words spoken but only that David Hubble had referred to it when appellant remonstrated with him.

      . Judge Walter had presided at a separate trial for David Hubble, who also filed a motion for new trial on grounds of after-discovered evidence.