author: JOHNSON, Judge:

text:
    462 A.2d 736
    COMMONWEALTH of Pennsylvania v. Raynard GREEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 13, 1982.
    Filed June 17, 1983.

      Kenneth Dean Chestek, Erie, for appellant.
    Michael J. Veshecco, District Attorney, Erie, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

This is an appeal from the order of Common Pleas Court, Erie County denying the Post Conviction Petition of appellant, Raynard Green. We now affirm.

Appellant was a juvenile when he was convicted by a jury of burglary and first degree murder. A sentence of life imprisonment was imposed upon appellant. On April 25, 1980, the Supreme Court of Pennsylvania affirmed judgment of sentence. Subsequently, appellant and new counsel petitioned for relief under the Post Conviction Hearing Act alleging the ineffectiveness of trial counsel. An evidentiary hearing into the allegations set forth in appellant’s petition was conducted on May 5, 1981. By order dated June 3, 1981, appellant’s petition was dismissed, prompting this appeal.

Three allegations of trial counsel’s ineffectiveness are presented for our review. They are: (1) whether trial counsel’s failure to move to suppress appellant’s confession was ineffective assistance of counsel; (2) whether trial counsel’s failure to object to testimony from which the jury could infer that appellant had a prior criminal record was ineffectiveness of counsel; and (3) whether trial counsel was ineffective for failing to object at trial and argue on direct appeal that the question asked of a defense witness by the trial judge was prejudicial error.

Before embarking upon our consideration of the issues raised by appellant’s allegations of ineffectiveness, we must first set forth the traditional two step analysis we will employ in determining whether appellant received ineffective representation. Our initial focus will be to determine whether the issues underlying appellant’s allegations are of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Should we conclude that appellant’s allegations of ineffectiveness have arguable merit, we must proceed to determine whether trial counsel’s action or inaction was supported by a reasonable basis designed to effectuate appellant’s interests. Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979). Trial counsel will be deemed ineffective if the underlying issue is of arguable merit and he lacked a reasonable basis for his action or inaction.

I.

Appellant’s first allegation of ineffectiveness concerns trial counsel’s failure to seek the suppression of inculpatory statements allegedly made by appellant to the Erie Police. Appellant advances four separate arguments as to why the statements were suppressible. They are: (1) that the statements employed at trial were suppressible because they were not his statements; (2) that he did not waive his Constitutional rights; (3) that the Commonwealth did not comply with the “interested adult” rule; and (4) that the Commonwealth violated his right to counsel when it conducted an interrogation after an assertion by his mother that she wanted counsel present. Where counsel has failed to move for suppression of evidence and the claim of inadmissibility would not have been frivolous, counsel will not be deemed ineffective if there is a reasonable basis for his action. Commonwealth v. Williams, 304 Pa.Super. 351, 450 A.2d 716 (1982).

The circumstances surrounding the acquisition of the statements herein were described at appellant’s trial by Detective Dickie Russell and subsequently, at the P.C.H.A. hearing by appellant. Detective Russell testified that appellant was arrested at his home on April 26, 1978. Appellant testified that upon arrest the police informed him of his Miranda warnings in the presence of his mother. Appellant was taken to the Erie Police station alone. He testified that his mother stayed behind to try and secure an attorney for him. Upon arrival at the police station, appellant was placed in a room on the first floor until the police could secure the presence of an adult for appellant’s interrogation. Shortly thereafter, appellant’s 21 year-old sister, Theresa Green, arrived. Upon her arrival, appellant was transferred to another room in the police station for interrogation after a five minute interval. The record does not reveal whether appellant and his sister were together during this five minute period of time. The detective testified that once relocated to the other room, appellant and his sister were both informed of his Miranda rights, and that both acknowledged their awareness of his rights and indicated their willingness to talk to the police. In contrast, appellant testified that his Miranda warnings were not given to him at any time while he was at the police station. Detective Russell testified that both appellant and his sister signed a waiver form; however, it was stipulated at the P.C.H.A. hearing that only appellant’s sister had actually signed the waiver form.

Detective Russell testified that in the early stages of the interrogation, appellant’s sister would volunteer answers to his questions before appellant was able to answer. He went on to testify as to what appellant had said during the interrogation. Appellant testified in a conflicting fashion at the P.C.H.A. hearing, first acknowledging that he made statements to the police and later maintaining that he did not. The detective also testified that Theresa elicited from appellant an admission, in the presence of police officers, that he killed the victim.

To resolve the conflicts in the evidence, we note that the hearing judge found appellant’s testimony at the P.C.H.A. hearing to be “blatantly false”. With this in mind, we turn to examine appellant’s arguments for suppression.

Appellant’s first argument deserves only short mention. We have examined the record and find that it belies the claim that the Commonwealth’s own testimony indicated that the statements read at trial were not appellant’s. While Detective Russell testified that in the early part of the interrogation that appellant’s sister would volunteer answers to the questions posed to appellant, in other portions of the detective’s testimony, he recalled what appellant had said to him and, at times, his recollections purported to be verbatim accounts of what appellant had said. N.T. October 18, 1978 at 148 and 158. This argument lacks merit.

The gist of appellant’s second and third arguments is that appellant did not knowingly and intelligently waive his Miranda rights. First, he contends that his Miranda warnings were not given to him before the interrogation began and that he did not waive those rights. Second, he contends that the Commonwealth failed to comport with the “interested adult” rule.

It is settled law that a waiver of Miranda rights must be explicit, for it will not be presumed. Commonwealth v. Christmas, 281 Pa.Super. 114, 421 A.2d 1174 (1980). Moreover, the waiver must be knowing and intelligent before it is effective. Miranda v. Arizona, supra. A knowing and intelligent waiver exists if a defendant has made inculpatory statements after he has been read his Constitutional rights and has acknowledged his understanding of them. See Commonwealth v. Peoples, 483 Pa. 152, 394 A.2d 956 (1978). In the case of a juvenile accused, Pennsylvania has adopted a per se rule that the Commonwealth must establish that the juvenile accused was afforded an opportunity to consult with an adult, interested in the welfare of the juvenile, who has been fully apprised of the juvenile’s Constitutional rights, before any purported waiver by the juvenile may be considered effective. Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977).

Appellant’s assertion that he was not warned of his Miranda warnings and did not waive his rights deserves only short mention. Contrary to appellant’s assertions, the trial testimony of Detective Russell indicates that appellant and his sister were both read appellant’s rights. Both acknowledged their understanding of those rights and indicated a willingness to cooperate with the police. While appellant apparently did not sign a waiver form, as did his sister, a written waiver is not necessary for us to conclude that appellant waived his rights. U.S. v. Stuckey, 441 F.2d 1104 (3rd Cir.1971); Commonwealth v. Cost, 238 Pa.Super. 591, 362 A.2d 1027 (1976); Commonwealth v. Keysock, 236 Pa.Super. 474, 345 A.2d 767 (1975). Since there is credible evidence of record that appellant was given his Miranda warnings and explicitly waived them, this argument also lacks merit.

We next consider appellant’s contention that the Commonwealth failed to comport with the “interested adult” rule because Theresa Green was not an interested adult and, even if she was an interested adult, appellant never had an opportunity to meet with her without the presence of police officers.

We agree with appellant that the record is devoid of proof that appellant and his sister were permitted to confer privately before appellant made inculpatory statements. However, the record clearly establishes that appellant’s sister, with knowledge of his rights, was present throughout his interrogation. In two recent cases this court has held that the mere presence of an informed, interested adult during custodial interrogation is sufficient to comport with the requirement of an “opportunity for consultation” despite the absence of privacy. Commonwealth v. Williams, 309 Pa.Super. 63, 454 A.2d 1083 (1982); Commonwealth v. Rochester, 305 Pa.Super. 364, 451 A.2d 690 (1982). Accordingly, we conclude that appellant has been afforded a sufficient opportunity for consultation to comport with the interested adult rule.

As to appellant’s claim that Theresa Green was not the interested adult envisioned by the rule, we are of the view that it must also be rejected.

Appellant argues that Theresa demonstrated by her conduct that she did not have appellant's interests at heart. Specifically appellant refers to her having signed a waiver form and having encouraged appellant to answer questions and admit that he killed the victim in the presence of police.

Our case law has to a limited degree expounded upon the requirement that the adult providing advice to the juvenile accused must have a genuine interest in the juvenile’s welfare. Interested adults are usually persons of blood relationship (e.g. parents) or attorneys who professionally represent the juvenile accused. See Commonwealth v. Thomas, 486 Pa. 568, 406 A.2d 1037 (1979). The requisite concern for the welfare of the juvenile is assumed to be present when a person of blood relationship is consulted. However, that assumption is not justified where the disinterest of the blood relative is “graphically demonstrated”. Commonwealth v. Smith, supra, (father’s refusal to come to the police station graphically demonstrated his indifference to the juvenile accused’s plight.)

Theresa, at least facially, comports with the requirement of being concerned with the welfare of appellant by virtue of her blood relationship to appellant. We find no evidence in the record that her relationship with her brother was anything other than a loving one. There is no evidence that she was indifferent toward her brother, comparable to that in Commonwealth v. Smith, supra. Nor was there any evidence of extraneous concerns that might supplant her concern for the welfare of her brother. See Commonwealth v. Christmas, supra.

We are not persuaded by appellant’s argument that Theresa was not an interested adult because she signed a waiver and encouraged appellant to admit his guilt. Her signature on the waiver form did not operate to waive appellant’s rights, it merely memorialized her understanding of appellant’s rights. We note also that appellant has not cited us to legal authority holding that a blood relative may not suffice as an “interested adult” if after being informed of the juvenile’s rights the adult encourages the juvenile to cooperate with the police.

In sum, we believe that appellant has been afforded an adequate opportunity to consult with an interested adult.

The last of appellant’s arguments supporting suppression concerns whether the Commonwealth violated appellant’s right to counsel by interrogating him after his mother allegedly asserted his right to have counsel present.

This argument rests upon appellant’s P.C.H.A. testimony, which the hearing judge found to be “blatantly false”. We therefore are constrained to reject appellant’s argument because his testimony was not believed.

Even if we were in agreement with appellant that his statements could have been suppressed for one of the reasons he alleged, we still could not deem trial counsel to be ineffective because his tactical decision to employ appellant’s statement to corroborate his defense strategy of voluntary intoxication/diminished capacity had a reasonable basis.

The record establishes that trial counsel discussed the statement with appellant on numerous occasions, N.T., P.C. H.A. at 6, 7, and 10, and that appellant acquiesced in the proposed defense strategy until his P.C.H.A. petition was filed.

Trial counsel developed his defense strategy at trial with testimony from various witnesses that described appellant’s conduct months before the crime. They testified that appellant would experience periods of total loss of self-control due to emotional instability. That on these occasions, appellant was violent, and often lost any recollection of what happened. Trial counsel attempted to show by testimony of defense witnesses that at the time of the murder, appellant suffered one of these periods, which was caused by, or the effect of which was augmented by appellant having voluntarily ingested alcohol, two purple microdots (a mild hallucinatory drug) and having smoked marijuana. However, appellant’s statement was the only method of linking his strategy to the crime, short of calling appellant as a witness. In this respect, counsel was able to argue from the facts in appellant’s statement that appellant lacked the requisite criminal intent for first degree murder. In his closing, counsel referred to portions of appellant’s statement to indicate that appellant’s conduct was irrational, and that appellant had suffered a memory lapse. Counsel emphasized to the jury that these were characteristic of appellant when he had experienced one of his violent periods. By employing the statement, trial counsel was able to place direct evidence in front of the jury that appellant had voluntarily become intoxicated and he was able to indicate, as well, the degree of appellant’s intoxication by detailing what appellant had ingested. This evidence was corroborated by the perceptions of other witnesses. We are of the view that the statement had exculpatory value to appellant’s defense.

In Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973), our supreme court held that a trial counsel’s failure to suppress a confession that was exculpatory in nature was not ineffectiveness, for counsel’s decision was supported by a “reasonable basis.” In light of the holding in Hill, our finding that appellant’s statement had exculpatory value is sufficient to refute appellant’s claim of ineffectiveness. Appellant, however, argues that the use of the statement was unreasonable because the statement was incriminating and inflammatory.

In Commonwealth v. Goosby, 461 Pa. 229, 336 A.2d 260 (1975) our supreme court held that counsel’s decision not to suppress a defendant’s statement was supported by a reasonable basis even though part of the statement inculpated the defendant and another part exculpated defendant. We note additionally that we are unimpressed by appellant’s arguments. Appellant acquiesced in the decision to employ the defense strategy of diminished capacity/voluntary intoxication and has not challenged on appeal trial counsel’s decision to present this defense. In electing to employ this defense, appellant conceded that he committed the criminal acts that resulted in the death of the victim. See Commonwealth v. Blair, 491 Pa. 499, 421 A.2d 656 (1980); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). Thus appellant’s argument is deprived of its persuasive force.

Inasmuch as appellant’s suppression arguments lack merit and we find trial counsel had a reasonable basis for his tactical decision to employ appellant’s statement in his defense, we conclude that trial counsel did not render, ineffective representation to appellant.

II.

Appellant next argues that trial counsel was ineffective for failing to object during trial to references elicited from a defense witness from which the jury could infer that appellant had been involved in prior criminal activity.

The references referred to by appellant occurred during the testimony of Theresa Green. During cross-examination she blurted out that appellant had been in a “group home”. N.T., October 18, 1978 at 184. Then in response to the district attorney’s questions, she said that appellant went to “New Castle.” N.T. October 18, 1978 at 186. On redirect examination, the witness responded to a question from trial counsel by saying that appellant “did something ... they sent him right to the group home.” N.T. October 18, 1978 at 201. Later in redirect, the witness blurted out that appellant “got in some trouble.” N.T. October 18, 1978 at 201. On recross-examination, the district attorney asked the witness directly “did [appellant] go to New Castle because he had been into some difficulty?” N.T., October 18, 1978 at 205. Trial counsel objected. The trial judge ruled that the district attorney may ask the question as long as he did not get into the specific crimes. Later in recross-examination, the witness stated in response to the district attorney’s questions, that she did not know whether the trouble she had referred to was the reason he was sent to New Castle. N.T., October 18, 1978, at 208-9.

As a general rule, error occurs if a testimonial reference indicates to the jury that the accused has been involved in prior unrelated criminal activity; but where this court is convinced beyond a reasonable doubt that the error did not contribute to the verdict, we may hold that reversal is not required because the error was harmless. Commonwealth v. Weakland, 273 Pa.Super. 361, 417 A.2d 690 (1979). In the instant case, the jury could reasonably infer that appellant had engaged in prior criminal activity, however, that inference was rendered harmless in light of the overwhelming evidence of appellant’s guilt presented by the Commonwealth. Id.; see also Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

This allegation of ineffectiveness lacks arguable merit.

III.

In support of the diminished capacity/voluntary intoxication defense, trial counsel called Dr. Frank Pizzat to testify. Appellant’s third allegation of ineffectiveness concerns trial counsel’s failure to object to a question directed to Dr. Pizzat by the trial judge.

The issue herein arose from the following testimony: Defense counsel: Doctor, could you tell me what effect drugs or alcohol would have on these self-controlling functions?
Doctor: They would very likely reduce the self-controlling functions so that the impulse and the feelings could be very directly expressed, depending upon the extent of the loss of such control. In other words, how much had been ingested or how much had been imbibed and other provoking circumstances in my judgment, the defendant could behave in a way that he would not behave rationally under those circumstances.
The Court: Well, Doctor, if anybody took drugs and alcohol to excess, it would reduce their self-controlling functions wouldn’t it?
Doctor: Yes, it would, Your Honor.

N.T. October 18, 1978 at 231-32.

It is settled law that a trial judge has the inherent right, and at times, the duty to question witnesses to clarify existing facts and to elicit new information. Commonwealth v. Brown, 438 Pa. 52, 265 A.2d 101 (1970). However, the questioning may not be done in a protracted or biased manner. Commonwealth v. Lanza, 228 Pa.Super. 300, 323 A.2d 178 (1974). Here, the trial judge exercised his right to question Dr. Pizzat. The obvious purpose of the trial judge’s question was to clarify the doctor’s testimony so as to aid the jury in assessing its import. This purpose is proper. See Commonwealth v. Miller, 442 Pa. 95, 275 A.2d 328 (1971); Commonwealth v. Whyatt, 235 Pa.Super. 211, 340 A.2d 871 (1975).

Appellant argues that the trial judge committed error by propounding this question. Appellant asserts that the trial judge’s question lessened the favorable effect of Dr. Piz-zat’s testimony and, as such, signalled to the jury that the trial judge thought the defense was frivolous.

Our examination of the record does not convince us that the trial judge’s single question had the effect of negating appellant’s defense.

Even if the jury were to get the impression from the question and response that the court challenged Dr. Pizzat’s testimony, the trial judge’s charges were sufficient to eliminate any such impression. In its charge to the jury, the court said the following:

Now, you heard the evidence in regard to intoxication and drugs and it’s for you to say. Maybe he was sober, maybe he wasn’t, maybe he was slightly intoxicated and could still form the criminal intent. Maybe he wasn’t. All of this is for you____

N.T. October 18, 1978 at 285. Regarding the testimony of Dr. Pizzat the trial judge told the jury that it “must judge [Dr. Pizzat’s testimony] along with all of the other evidence in this case.” N.T., October 18, 1978, at 287. Finally, the trial judge instructed the jury that: “[t]he credibility of the witnesses is entirely for you. I have nothing to say as to whom you will or will not believe.” N.T., October 18, 1978, at 288. These instructions from the trial judge were sufficient to alert the jury that it and it alone had to decide the merit of appellant’s defense.

Appellant’s third allegation of ineffectiveness lacks merit.

Conclusion

For the foregoing reasons, we affirm the order denying appellant P.C.H.A. relief.

      . 18 Pa.C.S.A. § 3502.

      . Id. § 2502.

      . Commonwealth v. Green, 488 Pa. 611, 413 A.2d 651 (1980).

      . Act of January 26, 1966, P.L. 1580, (1965) § 1 et seq., 19 P.S. § 1180-1 et seq. repealed and reenacted by Act of May 13, 1982, P.L. 417, No. 122, § 3 immediately effective, 42 Pa.C.S.A. § 9541 et seq.

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

      . Compare Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975) (where our supreme court held that before a parent may entreat the minor to respond to questions of police, the parent must at least be informed of the minor’s rights).


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    462 A.2d 743
    COMMONWEALTH of Pennsylvania, Appellant, v. Marilyn JOHNSON. COMMONWEALTH of Pennsylvania, Appellant, v. Lemuel HENRY.
    Superior Court of Pennsylvania.
    Argued April 16, 1980.
    Filed June 24, 1983.
    Petition for Allowance of Appeal Denied Nov. 4, 1983.

      Shad Connelly, Assistant District Attorney, Erie, submitted a brief on behalf of Commonwealth, appellant.
    Denise L. Jones, Erie, for Johnson, appellee (at No. 613).
    George M. Schroeck, Erie, for Henry, appellee (at No. 614).
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

The Commonwealth appeals from an order granting ap-pellees’ motions to suppress physical evidence and appellee Johnson’s motion to suppress inculpatory statements. The lower court suppressed the evidence because it found that the search warrant affidavit failed to set forth reasonable cause for a nighttime search. See Pa.R.Crim.P. 2003(c). We agree with the lower court that the affidavit was insufficient in that regard. We disagree, however, with its conclusion that the evidence must be suppressed simply because we have found the nighttime search unjustified. Rather, we hold that application of the exclusionary rule would be appropriate only if the search was otherwise found to be constitutionally infirm. Since we cannot determine from the record before us whether the instant search was, in fact, constitutionally infirm, the case is remanded to the trial court for the consideration of appellees’ remaining suppression claims.

I

We must first determine whether the Commonwealth’s appeal is properly before this Court. In Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983), we held that “[w]hen confronted with a Commonwealth appeal from an order suppressing evidence, we must first determine for ourselves whether the order is appealable—whether it terminates or substantially handicaps the prosecution; and we must make that determination on the basis of the record, and on that basis alone.” Applying that test to this case, we conclude that the suppression order is appealable. Ap-pellees are charged with possession of, and possession with intent to deliver, controlled substances. It is apparent from our review of the record that the prosecution of appellees would be substantially handicapped without the controlled substances. As we said in Commonwealth v. Lapia, “the Commonwealth cannot prove a defendant’s possession of a controlled substance if it cannot prove that it took the substance from the defendant.” 311 Pa.Super. at 280, 457 A.2d at 884. Similarly, we find that the Commonwealth’s case would also be substantially handicapped without the use of statements made by appellee Johnson and personal items allegedly belonging to appellee Henry.

II

On February 1, 1979, at approximately 10 p.m., an informant provided police with information that she had seen large amounts of cocaine and marijuana that date at 236 East Seventh Street in Erie, Pennsylvania. On the basis of the informant’s information, the police applied for and were issued a nighttime search warrant. At approximately 10:55 p.m., police searched the above premises and seized four pounds of marijuana and two grams each of cocaine and hashish. Appellee Johnson, who was present at the time of the search, also made several inculpatory statements. In addition, police seized personal items allegedly belonging to appellee Henry. After informations were filed charging appellees with drug offenses, appellees filed motions to suppress evidence on various grounds. As we have stated, the lower court granted the motions to suppress on the basis of one ground raised by both appellees, to wit, that the search warrant affidavit failed to show reasonable cause for a nighttime search.

Pa.R.Crim.P. 2003(c) provides that “[n]o search warrant shall authorize a nighttime search unless the affidavits show reasonable cause for such nighttime search.” Interpreting that Rule, this court in Commonwealth v. Baldwin, 253 Pa.Super. 1, 5, 384 A.2d 945, 948 (1978) stated that “the affidavit for a warrant authorizing a nighttime search must show both probable cause and some reason why the search cannot wait until morning.” The search warrant affidavit in this case provided as follows:

Recieved (sic) information from a confidential, reliable informant who has given information in the past which has been true and accurate, and which has lead (sic) to arrests and convictions. Informant stated that on this date 2-1-79 she personally saw large amounts of Cocain (sic) and Marijuana in the above listed Home, and that it belongs to the above listed subject.
I believe the above information to be true and accurate, and also believe that this warrant is necessary to conduct a lawful and complete search. I also request a night time search warrant be granted as I believe the aforementioned drugs will be sold by tomorrow.

Thus, the only the information presented to the District Magistrate was that, on February 1, 1979, the informant saw large amounts of controlled substances at 236 East Seventh Street and that the affiant believed that those substances would be sold by the following date.

This Court, in reviewing challenges to nighttime searches, has considered several factors as relevant to establishing reasonable cause pursuant to Pa.R.Crim.P. 2003(c). In Commonwealth v. Baldwin, supra, we upheld a nighttime search where the search warrant affidavit stated as reason therefor that defendant had a reputation as a drug dealer, drugs were seen on defendant’s premises and a drug sale had been made that same evening after which time the purchaser of those drugs had been arrested and the drugs seized. Particularly important in establishing reasonable cause for the nighttime search was the fact of the purchaser’s arrest for “once anyone connected with contraband is apprehended, the possessors of the contraband make every effort to dispose of it immediately.” 253 Pa.Super. at 7, 384 A.2d at 949. The fact of an arrest was also found to be significant in upholding a nighttime search in Commonwealth v. Ehredt, 255 Pa.Super. 84, 386 A.2d 147 (1978), reversed on other grounds, 485 Pa. 191, 401 A.2d 358 (1979). In that case, police made an arrest three hours before the search was executed and were informed by the male arrested that he had stored property stolen during several burglaries in defendant’s apartment.

The existence of information that controlled substances were stored at the premises to be searched and were to be moved imminently was the basis for upholding nighttime searches in Commonwealth v. Moretti, 280 Pa.Super. 167, 421 A.2d 458 (1980) and Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335 (1980).

Thus, a nighttime search will be justified where there is information presented in the search warrant affidavit that, absent a nighttime search, there is a danger that the evidence sought will be disposed of. Here, unlike Baldwin, supra, and Ehredt, supra, no arrest was made before a search warrant was sought which would have alerted appellees to the fact that they were the subject of a police investigation, thereby prompting them to remove the controlled substances. See also Commonwealth v. Ryan, 300 Pa.Super. 156, 446 A.2d 277 (1982) (nighttime search warranted; defendant aware of police investigation). There was, furthermore, no additional information that those substances were to be sold imminently as in Moretti, supra, and Prokopehak, supra. All that remains is information that controlled substances were seen by the informant on the premises to be searched and the affiant’s unsubstantiated belief that those substances would be sold by the next day. We agree with the lower court that this information was insufficient to establish reasonable cause for a nighttime search as required by Pa.R.Crim.P. 2003(c).

Ill

This is not the end of our analysis, however. We must next determine whether suppression is always the appropriate remedy where, as here, a nighttime search is found to be improper. For the following reasons, we cannot agree with the lower court’s conclusion that suppression is per se required for a violation of Pa.R.Crim.P. 2003(c). Nor are we in accord with the court’s determination that only exclusion of the evidence will deter the police from conducting improper nighttime searches.

This appears to be a novel question in Pennsylvania and we, therefore, lack any controlling decisional guidance. However, in his dissenting opinion in Commonwealth v. Ehredt, 255 Pa.Super. at 96-97, 386 A.2d at 153, Judge Spaeth stated his view that the Commonwealth’s failure to establish reasonable cause for a nighttime search, while a violation of Pa.R.Crim.P. 2003(c), did not require suppression of evidence seized during the search in that case since the warrant was issued on probable cause. In support of his conclusion, Judge Spaeth relied on our decision in Commonwealth v. Jones, 245 Pa.Super. 487, 369 A.2d 733 (1977), where we held that failure to verify the inventory of items seized following a search, as required by Pa.R. Crim.P. 2009(a), would not result in the suppression of evidence absent a rule, promulgated by the Supreme Court, permitting suppression as a sanction for a violation of Pa.R.Crim.P. 2009(a) or a showing that the evidence was obtained in violation of defendant’s constitutional rights. Finding neither, the Jones court reversed the lower court’s suppression order. Judge Spaeth, in Commonwealth v. Ehredt, supra, likened a violation of the inventory requirement of Pa.R.Crim.P. 2009(a) to a violation of Pa.R.Crim.P. 2003(c):

An order to suppress may be entered in [sic] the defendant’s constitutional rights have been violated. However, the failure to verify the inventory was not such a violation. Neither is the failure to show cause for a nighttime search—as distinguished from showing cause for the search itself. An order to suppress may also be entered if permitted by a rule of court. However, there was no rule permitting suppression as a sanction for the failure to verify the inventory. Neither is there a rule permitting suppression for the failure to show cause for a nighttime search; as in Jones, we must leave it to the Supreme Court whether to promulgate such a rule.

255 Pa.Super. at 97, 386 A.2d at 153. See also, Commonwealth v. Chandler, 312 Pa.Super. 1, 458 A.2d 204 (1983) (citing Commonwealth v. Jones, supra; no suppression where issuance section on search warrant inadvertently left blank. See Pa.R.Crim.P. 2005).

A similar conclusion was reached by the Pennsylvania Supreme Court in Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979) when it considered the proper remedy to be applied for a violation of Pa.R.Crim.P. 2008(a) (copy of search warrant and affidavit, and receipt for property seized, to be left with person from whom or from whose premises the property was taken). Finding that noncompliance with the Rule did not mandate suppression of evidence in that case, the Court explained:

A rule of exclusion is properly employed where the objection goes to the question of the reliability of the challenged evidence, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979), or reflects intolerable government conduct which is widespread and cannot otherwise be controlled. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (decided June 5, 1979); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Experience does not suggest there has been such a widespread and flagrant abuse of rule 2008(a) that would require the fashioning of a per se exclusionary rule for its violation. See e.g. Mapp v. Ohio, supra. Therefore, the imposition of a sanction requiring the exclusion of evidence that results from a search where there has not been compliance with the rule must depend upon the relationship of the violation to the reliability of the evidence seized. Here, there was probable cause for the entry and search and there is no dispute that the rifle was in fact found on the premises described in the warrant and seized pursuant to that search. Thus, appellant’s rights were not prejudiced by the officer’s failure to fully comply with the mandates of the rule.

486 Pa. at 115-116, 404 A.2d at 384-385. See also, Commonwealth v. Walls, 255 Pa.Super. 1, 386 A.2d 105 (1978).

On the other hand, in Commonwealth v. Golden, 277 Pa.Super. 180, 419 A.2d 721 (1980), we concluded that evidence must be suppressed because of the failure of the police to comply with Pa.R.Crim.P. 2007 (Knock and Announce Rule), absent exigent circumstances therefor. We stated there that “Rule 2007 represents a codification of the announcement rule required by the Fourth Amendment to the United States Constitution.” 277 Pa.Super. at 184, 419 A.2d at 723. Accord Commonwealth v. Wallace, 293 Pa. Super. 73, 437 A.2d 996 (1981).

Thus, while there is no direct authority regarding the proper remedy to be applied for a violation of Pa.R. Crim.P. 2003(c), our review of those decisions which have considered sanctions to be imposed for analogous violations of the procedural rules lead us to conclude the following: Where a rule represents a codification of Fourth Amendment requirements, e.g., the knock and announce rule, its violation will result in exclusion of evidence. Where, however, the rule goes beyond the requirements of the Fourth Amendment, e.g., verification of inventory rule or rule requiring police to leave a copy of the search warrant and affidavit, its violation will not result in suppression unless (1) there is a particular rule mandating suppression, or (2) the defendant’s constitutional rights have been otherwise violated. We agree with Judge Spaeth’s dissent in Commonwealth v. Ehredt, supra, which concludes that a violation of Pa.R.Crim.P. 2003(c) fits into the latter category. In our opinion, that rule represents merely the showing which must be made before a nighttime search may be conducted and does not derive from the Fourth Amendment. A technical failure to comply with the rule, therefore, will not result in the exclusion of evidence seized absent a showing that the defendant’s constitutional rights have been otherwise violated by the search.

Our conclusion that a violation of the nighttime search rule does not per se warrant application of the exclusionary rule is supported by the Sixth Circuit Court of Appeals’ decision in United States v. Searp, 586 F.2d 1117 (6th Cir.1978), cert. denied, 440 U.S. 921, 99 S.Ct. 1247, 59 L.Ed.2d 474 (1979). In that case, the Court found the procedural requirements of F.R.Crim.P. 41(c) violated where the search warrant lacked authorization for a nighttime search and the affidavit contained no supporting facts justifying a need therefor. Nevertheless, the evidence seized was found properly admitted since the search was conducted pursuant to a valid search warrant and otherwise met the requirements of the Fourth Amendment. Furthermore, the violation of F.R.Crim.P. 41(c) was not the result of bad faith on the part of police officers. As the court stated:

[W]e think it important to differentiate between the right to be free from unnecessary and frightening intrusions by the State into our homes in the middle of the night and the procedures which have been established to protect that right. In this case the defendant’s interests have not been violated, though the procedures were not observed.
This does not mean, of course, that violation of the required procedures is unimportant; indeed the procedures are the only way to prevent infringements of individual rights. Rather, we hold that requiring suppression in all cases would be a remedy out of all proportion to the benefits gained to the end of obtaining justice while preserving individual liberties unimpaired.

586 F.2d at 1122-1123.

We regrettably recognize that our conclusion today may be interpreted as overlooking or even promoting noncompliance with Pa.R.Crim.P. 2003(c). However, we simply cannot agree with the lower court that deterrence of unreasonable nighttime searches can be accomplished only by ordering suppression when a violation of the rule occurs. It is certainly our expectation that local police departments will continue to make efforts to satisfy the requirements of Pa.R.Crim.P. 2003(c), for in many cases failure to do so will result in suppression of evidence seized. In this regard, we note the observation made by the Third Circuit Court of Appeals in United States ex rel. Boyance v. Myers, 398 F.2d 896, 897 (3rd Cir.1968) (nighttime search invalid where police, who obtained a warrant authorizing a daytime search, instead conducted search at night): “The time of a police search of an occupied family home may be a significant factor in determining whether, in a Fourth Amendment sense, the search is ‘unreasonable’.”

I

Our final inquiry is whether suppression is required under the facts of this case. Although appellees’ motions to suppress raised several grounds in support thereof, including that the search warrant was issued on less than probable cause, and a suppression hearing was conducted, the lower court addressed only the challenge to the propriety of the nighttime search. It has not furnished us with a statement of the findings of fact and conclusions of law as required by Pa.R.Crim.P. 323(i). If the appellees’ constitutional rights are found to have been violated by the search, the physical evidence and statements should be suppressed. If, on the other hand, those rights were not infringed, the case shall proceed to trial. We, therefore, reverse the lower court’s order which suppresses evidence seized during the nighttime search and remand the case for findings of fact and conclusions of law on the question of whether appel-lees’ constitutional rights were otherwise violated by the search.

Order reversed and case remanded with instructions. We do not retain jurisdiction.

HOFFMAN, J., concurs in result.

      . This case was held pending the disposition of Commonwealth v. Lapia, supra.

      . There is no dispute that the 10:55 p.m. search constituted a nighttime search. Pa.R.Crim.P. 2005(e).

      . As the comment to Pa.R.Crim.P. 2003(c) makes clear, the "reasonable cause” requirement “highlights the traditional doctrine that nighttime intrusion into a citizen’s privacy requires greater justification than an intrusion during normal business hours.”

      . Although the search warrant was never admitted into evidence, the affidavit portion of the warrant was read into the record by the affiant at the suppression hearing.

      . Since the majority in Commonwealth v. Ehredt, supra, found the nighttime search justified, it was unnecessary to reach the question of the application of the exclusionary rule.

       A third rationale underpinning the exclusionary rule concerns preserving the integrity of the judicial system. Mapp v. Ohio, 367 U.S. 643, 660, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), Dunaway v. New York, 442 U.S. 200, 217-218, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979). This concern is appropriate where the police practice, although not widespread, is still particularly reprehensible. The activities of the police officers in the instant case do not fall within that concern.

      . In Commonwealth v. Baldwin, 253 Pa.Super. at 5 n. 3, 384 A.2d at 947 n. 3, this Court approved of suppression orders made in two Common Pleas cases after a violation of Pa.R.Crim.P. 2003(c) was found. This approval was dicta, however, since the nighttime search in Baldwin was based on reasonable cause. Moreover, as the Baldwin court noted, the Common Pleas cases were distinguishable since the basis for their holdings was the fact that the warrants had been issued in the daytime and not executed until nighttime. This was not the case in Baldwin; nor is it the case here.

      . But see Gooding v. United States, 416 U.S. 430, 94 S.Ct. 1780, 40 L.Ed.2d 250 (1974) (Marshall, J. dissenting); United States ex rel. Boyance v. Myers, 398 F.2d 896 (3rd Cir.1968).

      . We have found no rule promulgated by the Supreme Court which would compel suppression in this case.

      . The Searp court would permit suppression for a violation of the procedural rules governing nighttime searches only where (1) there was bad faith conduct on the part of the police, or (2) prejudice to defendant in the sense that the search might not have occurred or would not have been so abusive if the requirements of the rule had been observed. 586 F.2d at 1125. A similar test has been applied by other federal courts which have held that the failure to comply with procedural rules regarding searches does not automatically require suppression. See, e.g., United States v. Vasser, 648 F.2d 507 (9th Cir.1980), cert. denied, 450 U.S. 928, 101 S.Ct. 1385, 67 L.Ed.2d 360 (1981) [tape-recorded affidavit insufficient to meet requirements of F.R.Crim.P. 41(c)(1) ]; United States v. Marx, 635 F.2d 436 (5th Cir.1981) [failure to deliver copy of search warrant in violation of F.R. Crim.P. 41(d)]; United States v. Burgard, 551 F.2d 190 (8th Cir.1977) [failure to return search warrant to federal magistrate as required by F.R.Crim.P. 41(a) ]; United States v. Dauphinee, 538 F.2d 1 (1st Cir.1976) [noncompliance with F.R.Crim.P. 41(d) requiring search warrant return to list evidence seized].


text:
    462 A.2d 750
    In re ESTATE OF Warren STAUFFER, Deceased. Bebeann O’HALLORAN v. Joseph T. STAUFFER, Administrator C.T.A., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1982.
    Filed June 24, 1983.
    Petition for Allowance of Appeal Granted Nov. 11, 1983.

      Donald H. Melaney, Pittsburgh, for appellant.
    Edward C. Milburn, Pittsburgh, for appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

Warren C. Stauffer died on December 8, 1979 leaving a will executed less than three months before his death. The sole beneficiary named in his will was his brother, Joseph T. Stauffer, to whom letters of administration c.t.a. were granted by the register of wills. The appellee herein, Bebeann O’Halloran, contested the will and filed a petition for citation sur appeal from the decree of the register. The appellee claimed that the will was not signed by the decedent and that the signature thereon was forged and that the decedent lacked testamentary capacity. Shortly after filing the petition for citation sur appeal the appellee filed an election to take against the decedent’s will on the ground that she was the surviving widow. The matter came on for hearing before Judge Rahauser and the testimony was directed solely to the issue as to whether the appellee was the common law spouse of the decedent. No testimony was introduced concerning the issue of fraudulant signing of decedent’s will or lack of testamentary capacity. The court below dismissed the appeal from probate and an appeal was not taken from that determination. The court decided that the appellee had sustained her burden of proving a common law marriage and confirmed her election to take against the will. The exceptions of the administrator c.t.a. were dismissed and he has appealed from the order of the court below.

The first issue is whether the appellee, Bebeann O’Hallo-ran, was competent to testify as to her status as the common law wife of the decedent, Warren Stauffer. Ms. O’Halloran was permitted to testify over the objections of counsel for the administrator c.t.a. that she and the decedent entered into a common law marriage on July 26, 1970, while driving to Geneva-on-the-Lake. The testimony by Ms. O’Halloran was as follows:

Q. Was there anything which transpired on that trip?
A. He asked me to be his wife, and I said I would.
Q. Do you recall his exact words?
A. Yes, he said, “Will you be my wife?”
Q. And your response was what?
A. “I sure will.”
Q. Did you two exchange gifts at that time?
A. He gave me this ring.
Q. The ring you have on your finger now?
A. Yes.
Q. . Have you worn it continuously to this day?
A. I kept it in my rosary case in my purse at all times, and I started wearing it when I was carrying Roselyn, when we told everybody we were married.
Q. Why did you not take out a marriage license and have a formal ceremony?
A. His mother threatened him that she would leave the house to the grandchildren.
Q. Was the house still in her name?
A. Yes.

Ms. O’Halloran also testified that she started using the name Stauffer when she was pregnant with her daughter, Roselyn, who was born on January 28, 1974. The decedent was Roselyn’s father. Further, appellee’s driver’s license, credit cards and bank accounts were in the name of Be-beann Stauffer, although she used the name O’Halloran at the Veterans’ Hospital where she was employed as a licensed practical nurse. Appellee testified that she and the decedent announced that they were married in the summer of 1973. She subsequently referred to Warren Stauffer as her husband and Warren likewise acknowledged her as his wife. She testified that she moved into Warren’s house after his mother died in July of 1977 and lived there until August, 1978, when she moved out because of a disagreement over their daughter Roselyn’s going to school. In addition to the testimony by the appellee concerning her status as the common law wife of decedent, there was testimony by several other witnesses that she and Warren acknowledged being married and represented to the community that they were husband and wife.

The first issue that we must deal with is whether Ms. O’Halloran’s testimony was admissible in view of Pennsylvania’s Dead Man’s Statute, Act of July 9, 1976, P.L. 586 No. 142, 42 Pa.C.S.A. § 5930 which is substantially a reenactment of the Act of May 23, 1887, P.L. 158, No. 89. The Act provides in pertinent part:

Except as otherwise provided in this subchapter, in any civil action or proceeding, where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased or lunatic party, shall be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy, unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy is between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses.

The court below allowed the admission of Ms. O’Hallo-ran’s testimony on the basis of the devisavit vel non exception to the Dead Man’s Act. The question of whether the alleged surviving spouse may testify to establish her status as a common law wife is not one to which a ready answer is available. In McGrath’s Estate, 319 Pa. 309, 179 A. 599 (1935) a claim was made to the widow’s exemption by one claiming to be the common law wife of a decedent who died intestate. The court held that she could testify and stated at 319 Pa. 315, 179 A. 602: “... nor is there any doubt of the competency of a surviving spouse to testify where, as here, the claim is to be taken by devolution.” The court cited the Act of May 23, 1887, P.L. 158, § 5, clause (e), 28 P.S. § 322. See also, Kennedy v. Rossi, 182 Pa.Super. 176, 126 A.2d 531 (1956). In Jacob’s Estate, OC-117-79, Adams County, 1981, unreported opinion by Judge Spicer, which was affirmed by the Supreme Court, Per Curiam, 494 Pa. 135, 430 A.2d 1153 (1981) the lower court stated:

The hearing on the family exemption occurred November 23, 1979. At the hearing, this Court ruled that Lizette Jacobs was competent to testify to establish her common law marriage to Lloyd Jacobs. The Court interpreted the exception in the Dead Man’s Statute, 42 Pa.C. S.A. § 5930, to issues of devisavit vel non and disputes between parties claiming by devolution to exempt petitioner from the Act’s proscription.

The courts of this Commonwealth do not speak with one voice in dealing with the issue of devisavit vel non and devolution. In Wagner Estate, 398 Pa. 531, 159 A.2d 495 (1960) the appellant claimed to be the wife of a decedent by virtue of a common law marriage. She filed an election to take against the will which the lower court struck from the record. On appeal, the Supreme Court held that there was sufficient evidence of a common law marriage but with respect to the testimony of the claimant, the alleged spouse, Justice Bok stated at 398 Pa. 536, 159 A.2d 498:

In the instant case the decedent is dead and the claimant’s lips are sealed by the Dead Man’s Act, May 23, 1887, P.L. 158 § 5(e), 28 P.S. § 322.

The court below relied on McClain Estate, 481 Pa. 435, 392 A.2d 1371 (1978) in admitting the testimony of the appellee concerning her common law marriage. In McClain the decedent left a will under which his estate was bequeathed to an unrelated individual. A caveat was filed to the probate of the will by persons who claimed to be grandnieces, and sole heirs at law of the decedent. The lower court excluded the testimony of an alleged grandniece to establish her relationship to the decedent. The reason that the lower court ruled that the devisavit vel non exception was not applicable was that the parties to the litigation, although claiming their respective interests in the decedent’s property by reason of his death, were not of the same class as the alleged grandnieces who claimed by descent and operation of the intestate laws whereas the residuary legatee claimed under the will. The Supreme Court held that the grandniece’s testimony fell within the devisavit vel non exception and stated at 481 Pa. 444, 445, 392 A.2d 1371, 1375:

The Dead Man’s Act renders the witness’ testimony competent where the controversy over decedent’s property is between parties respectively claiming such property “by devolution on the death of the owner.” The term “devolution” encompasses the transfer of a decedent’s estate both by operation of law, Arnout’s Estate, supra [283 Pa. 49, 128 A. 661 (1925)] and by will, Citizen’s National Bank v. McCafferty, 383 Pa. 588, 119 A.2d 297 (1956) and Gerlach’s Estate, 364 Pa. 207, 72 A.2d 271 (1950). The terms of the statute, therefore, do not make a distinction between intestate claims vs. testate claims.

The court in McClain cited Dalbey’s Estate, 326 Pa. 285, 287, 192 A. 129 (1937) in which the court stated: “This enactment [the devisavit vel non exception] renders competent all witnesses in disputes involving the testamentary disposition of property regardless of any interest possessed by them in the particular decedent’s property.” The court further stated at 326 Pa. 287, 192 A. 130:

This rule is in keeping with the modern tendency to admit all testimony having a direct bearing on issues involved, notwithstanding the witness’ interest, which reflects only on his credibility. This is especially true where other evidence is at times unavailable, as is frequently the case in litigation of this character, when those related to the testator are the only ones who have knowledge of the circumstances surrounding the execution of his will and the contents thereof.

In McClain the Supreme Court expressly overruled Munson v. Crookston, 219 Pa. 419, 68 A. 962 (1908) and Bowman’s Estate, 301 Pa. 337, 152 A. 38 (1930). In Munson, supra, the claimant was the surviving husband, and there was no dispute as to this, and he sought possession of his deceased wife’s real estate as a tenant by curtesy, having elected to take against the will. The plaintiffs in an ejectment action claimed under the will. The Supreme Court held that the husband could not testify under the Dead Man’s Act as the “claims are of different classes, and they are not within the exception of the statute.” 219 Pa. at 421, 422, 68 A. at 963. In Bowman’s Estate, supra, the widow of the decedent elected to take against the decedent’s will. Again, there was no issue with respect to her status as a surviving spouse. The issue was whether she had deserted her husband and therefore forfeited her right to participate in his estate. The widow testified that the separation was by consent and denied any desertion. The Supreme Court held that she was not a competent witness because of the Dead Man’s Act, Act of May 23, 1887, P.L. 158, § 5, clause (e).

In the instant case the appellee claimed a relationship to the decedent as a common law wife and her testimony to establish this relationship should be as admissible as if she were trying to establish a blood relationship.

We recognize that the conclusion we have reached is contrary to that reached by the court in Zeigler Estate, 30 Cumberland L.R. 90, 95 (1980) in which Judge Sheely, stated:

Initially, it should be pointed out that this court holds that the respondent’s testimony as to the existence of a common-law marriage contract (i.e., whether or not she is indeed the decedent’s spouse and therefore entitled to elect against his will) is barred by the Dead Man’s Statute. Section 5(e) of the Act of May 23, 1887, P.L. 158, as amended, 28 P.S. § 322.¹ See also, In Re Estate of Rider, 487 Pa. 373, 409 A.2d 397 (1979); Wagner Estate, 398 Pa. 531, 536, 159 A.2d 495, 498 (1960); Jackson Estate, 29 Fiduc.Rep. 538 (1979); Dennis Estate, 8 Fiduc.Rep. 185 (1958), aff'd. 394 Pa. 296, 197 [147] A.2d 419 (1959). We are fully aware of the case of In Re Estate of McClain, 481 Pa. 435, 392 A.2d 1371 (1978), which was extensively briefed by the parties to this action, but we do not feel that it changes the rules set forth in the above cited cases. (Emphasis in original).

The Probate, Estates and Fiduciaries Code, Act of April 18, 1978, P.L. 42, No. 23, 20 Pa.C.S.A. § 2209, in effect at the time of these proceedings dealt with the election to take against a will and forfeiture of that right and stated: “The surviving spouse shall be a competent witness as to all matters pertinent to his rights under this chapter.” This section of the Probate, Estates and Fiduciaries Code did not prohibit one who alleged to be a common law spouse from testifying. However, we note that the law has now been changed and this section has been amended. The Act as approved on February 18, 1982 reads in § 2209 as follows:

§ 2209. Surviving spouse as witness.
A person who is or claims to be the surviving spouse shall be a competent witness as to all matters pertinent to his rights under this chapter other than the creation of his status as the surviving spouse. (Emphasis added).

It is clear that under the law as it exists today the appellee would not be permitted to testify as to the creation of her status as a common law wife in an election to take against the will of a decedent. Nevertheless, it is our opinion that she was competent to testify under the law at the time the court permitted her to do so.

The remaining issue is whether the testimony, including that by Ms. O’Halloran, was sufficient to sustain her burden that she was the decedent’s common law wife and entitled to elect to take against his will. We believe that it was. In entering a marriage contract the parties technically did not use verba de praesenti and in the modern view this is not essential as long as the intention of the parties as expressed by their words is that they are married. As pointed out in Commonwealth ex rel. McDermott v. McDermott, 236 Pa.Super. 541, 545, 546, 345 A.2d 914, 915, 916 (1975):

The tenuous distinction verba de praesenti and verba de futuro has long been the subject of criticism. The decisions seeking to distinguish verba de futuro from verba de praesenti “compels] the belief that the distinction is theoretical and utterly unrealistic. If the distinction is to be preserved, there should be borne in mind the obvious truth that although words are the means of expressing the intention of the parties, nevertheless they are not the exclusive means by which intention may be conveyed ____ The setting in which the words are uttered, more strongly, than any delicate shading in grammar, reveals the intention of the parties.

The parties intended to be married. There was a satisfactory explanation as to why they did not live together except for a relatively short period of time after the decedent’s mother died, as the decedent’s mother threatened that she would not leave him her house if he married the appellee. The burden of proving the marriage is on the purported spouse and the law imposes a heavy burden on one who grounds his claim on an alleged common law marriage. Gavula Estate, 490 Pa. 535, 417 A.2d 168 (1980). We have carefully reviewed the record and find that the court below was justified in determining the existence of a common law marriage as there was evidence by several witnesses other than the appellee that she and the decedent acknowledged that they were married and represented to the community that they were married.

Order affirmed.

      . With respect to the exceptions to the adjudication, the court below was evenly divided; Judges Rahauser and Schwartz voting to dismiss the exceptions and Judges Zavarella and Watson dissenting on the basis that the appellee was not competent to testify and that the evidence did not sustain the burden of proving a common law marriage.

      . As pointed out in Quein’s Estate, 361 Pa. 133, 150, 62 A.2d 909, 917 (1949):
      In a will contest contestant ordinarily requests the grant of an issue devisavit vel non. This is an ancient legal process, the origin of which has probably been lost in antiquity. According to Burrill’s Law Dictionary, Vol. 1, p. 486, these Latin words may be translated "did he devise or not?” or "Will or not will?" which Wooddesson, in his Lectures on the Law of England (Second Edition, Vol. 3, Lecture 59, p. 286) criticises as being “barbarously expressed”. The function of this process is to direct a jury to find the facts upon which the validity of a will might be determined. As stated by Lord Chief Justice Tindal, in Tatham v. Wright, 2 Russ. & M. 1, 15 (39 English Reports 295, 300) such trial by jury “* * * by experience, is found best adapted to the investigation of the truth" (italics supplied)


author: BECK, Judge:

text:
    462 A.2d 755
    COMMONWEALTH of Pennsylvania v. Gary Allen PALMER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 26, 1982.
    Filed June 24, 1983.
    Petition for Allowance of Appeal Denied Oct. 3, 1983.

      Joseph E. Breman, Kittanning, for appellant.
    George R. Kepple, District Attorney, Kittanning, for Commonwealth, appellee.
    Before BECK, MONTEMURO and POPOVICH, JJ.
   BECK, Judge:

Gary Allen Palmer appeals from judgment of sentence imposed for robbery and attempted robbery in Armstrong County.

On September 14, 1979, appellant exited a car, driven by David Mardis, while wearing a white pillowcase mask with two eyeholes and carrying a gun. Appellant burst into a service station’s office with his gun drawn, ordered two patrons to lie face down on the floor, and announced, “This is a holdup.” An employee in the back heard the commotion and alerted the proprietor, who was upstairs. The proprietor ran down to the office, aimed a gun at appellant, and yelled, “I have a gun, too.” Appellant swung around, pointed his gun at the proprietor, then fled. The patrons and the proprietor all later testified that the attempted robber was a thin man about six feet tall wearing a white pillowcase mask. Appellant re-entered the car and drove off with Mardis. They soon stopped near a bar, and appellant again left the car wearing the mask. He entered the bar, announced it was a holdup, and with his gun drawn ordered the twenty or so patrons to put their hands in the air. He demanded money from the barmaid, and she gave him $217. Appellant then fled. Both barmaids and a patron later testified that the assailant was tall and thin and wearing a pillowcase mask. At trial, Mardis, the victims, and several others testified. Appellant presented an alibi defense. The jury convicted appellant of attempted robbery of the gas station and robbery of the bar.

Appellant contends (1) unconstitutional denial of effective assistance of counsel and absence of knowing and voluntary waiver of that right; (2) denial of fair trial because of improper remarks by the prosecution; (3) erroneous instructions to the jury by the trial court; (4) insufficiency of the evidence to sustain his convictions; and (5) excessive sentence based upon improper considerations and procedure. Finding these contentions without merit, we affirm the judgment of sentence.

At pretrial conference, appellant elected pro se representation, and the court appointed standby counsel in accordance with Pa.R.Crim.P. 318(d). The comment to this rule reads: “With respect to trials in court cases, where the defendant waives the right to counsel and elects to proceed pro se, it is generally advisable that standby counsel be appointed to attend the proceedings and be available to the defendant for consultation and advice. See Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976).”

Appellant now contends that the lower court’s colloquy relevant to his waiver of counsel did not adequately inform him of his right to be represented by counsel, of the nature of the elements of the charges, of the possible penalties, or the fact that there may be possible defenses of which counsel may be aware that would be lost permanently if not raised at trial, as required by rule 318(c) and comment.

The law is clear that the judge must conduct a comprehensive inquiry of the defendant to ascertain his understanding of all these factors, that the colloquy must be of record, and that the burden of establishing the fact that such a colloquy took place is on the Commonwealth. Commonwealth v. Charlett, 282 Pa.Super. 28, 422 A.2d 659 (1980). A colloquy which falls short of the rule’s requirements cannot be justified on the basis of the defendant’s prior trial experience as a criminal defendant. Commonwealth v. Dale, 286 Pa.Super. 308, 428 A.2d 1006 (1981).

Although the record of this case reveals that the lower court did not fully explore all matters relating to waiver during the colloquy, appellant was not, in fact, fully waiving his right to counsel. The arrangement worked out during the pretrial conference was that appellant’s standby counsel would select the jury, make closing remarks, file post-trial motions, and confer with appellant during the trial. Appellant asserted his right to self-representation as to certain other aspects of the trial. Appellant was to appear pro se only for the purposes of opening statement and examination of witnesses.

While we do not agree completely with the lower court that appellant’s arrangements did not constitute pro se representation, and that therefore there was no occasion for the court to advise the accused of his rights (Opinion, p. 4), we also decline to review the colloquy between the court and appellant by the standards of a full waiver colloquy. We find no other case which precisely addresses the situation which appellant and the court devised. In Commonwealth v. Andrews, 282 Pa.Super. 115, 422 A.2d 855 (1980) Andrews wished to be represented by himself. The court appointed standby counsel and Andrew declined to use his services. Our Court ruled that a defendant who insists on representing himself may not later claim ineffective representation of counsel. In Commonwealth v. Williams, 270 Pa.Super. 27, 410 A.2d 880 (1979) the accused requested that he serve as co-counsel with his attorneys and the court refused to allow him to do so. In Williams, the Court stated:

It is clear that an accused in a state criminal trial has a constitutional right to represent himself if he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1976); Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978).
There is, however, a distinction between the constitutional right to proceed pro se pursuant to a valid waiver of the right to counsel and the right to proceed pro se and with counsel. While we have unearthed no Pennsylvania cases disposing of this precise issue, numerous other courts have considered the question in the wake of Faret-ta, supra. Those courts have held with near unanimity that a criminal defendant has no sixth or fourteenth amendment right to act as co-counsel where he is already represented by an attorney and that a decision to permit such “hybrid” representation is better left to the sound discretion of the trial court (270 Pa.Superior 34, 410 A.2d at 883).

See also Hall v. Dorsey, 534 F.Supp. 507, 509 (E.D.Pa.1982); Move Organization v. City of Philadelphia et al., 89 F.R.D. 521 (E.D.Pa.1981) (no constitutional right to “hybrid” representation, simultaneously pro se and by counsel) and United States ex rel. Snyder v. Mack, 372 F.Supp. 1077 (E.D.Pa.1974) (accused informed that he could represent himself, but if court appointed counsel acted as trial counsel, then the conduct of the trial would be in counsel’s hands entirely).

In the instant case, it was within the discretion of the court to allow appellant to divide the responsibilities of his representation at trial with appointed counsel. We are satisfied that the exchange which took place was adequate for the partial waiver that was being effected. The court focussed on the limits of opening statement and the laws of evidence and repeatedly admonished appellant regarding the pitfalls of appearing pro se. The court also urged that appellant confer with counsel throughout the proceedings (N.T. 3-23). We hold that in a partial waiver of right to counsel, where standby counsel has been appointed, the full requirements of 318(c) need not be met. It is sufficient if the court instructs the accused on those aspects of the trial for which he seeks to represent himself. The related issue of the effectiveness of the court-appointed counsel is also raised. Appellant contends that his counsel was ineffective in several respects. In considering a claim of ineffectiveness, we must first determine whether the underlying issue is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If the issue is of arguable merit, we must then consider whether the course chosen by counsel had some reasonable basis designed to effectuate appellant’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Appellant argues that counsel was ineffective in not objecting to the Commonwealth’s failure to provide a list of alibi rebuttal witnesses as required by Pa.R.Crim.P. 305. However, in appellant’s previous trial for other crimes committed the same night in Indiana County, the Commonwealth had presented the same alibi rebuttal witnesses. Appellant and counsel were thus familiar with and prepared for the witnesses and testimony. An objection under these circumstances would at most have entitled appellant to a belated filing of a witness list, and not to the striking of any testimony or the granting of additional time to prepare. Thus, because counsel had a reasonable basis for not objecting, he was not ineffective.

Appellant contends that counsel was ineffective in permitting evidence of appellant’s prior criminal record. Appellant himself introduced his prior imprisonment over the prosecution’s objection in the course of examining several witnesses, first to show the bias of a prosecution witness, (N.T. April 7, 1981 at 340-41), then to show appellant’s rehabilitation since his release, (N.T. 350-1, 409). When appellant testified, his counsel elicited that while in prison appellant had earned a graduate equivalency diploma, (N.T. 411-12), and allowed appellant to refer to his prison career in answering another question, (N.T. 414). On cross-examining appellant, the Commonwealth asked why appellant had told the jury about his imprisonment, and he explained that imprisonment had given him a motive not to risk his freedom for unprofitable robberies such as the present (N.T. 470-74). We are satisfied that counsel had a reasonable basis in not restraining appellant from mentioning his imprisonment. Confronting appellant may have unduly called attention to the prejudicial aspects of the imprisonment and interfered with appellant’s self-representation. Similarly, counsel had a reasonable basis for casting a favorable light on the imprisonment by his subsequent questioning. Once a defendant has presented evidence to prove his good character or reputation, or has himself introduced evidence of his prior crimes, the prosecution has a limited right to introduce evidence of prior convictions in rebuttal. 42 Pa.C.S.A. § 5918; Commonwealth v. Candia, 286 Pa.Super. 282, 428 A.2d 993 (1981); Commonwealth v. Craft, 455 Pa. 616, 317 A.2d 213 (1974). Because the Commonwealth’s cross-examination was confined precisely to the evidence of imprisonment appellant himself had introduced, any objection would have lacked arguable merit. Thus, counsel was not ineffective for failing to object.

The final example of ineffectiveness relates to appellant’s third contention, that the court erroneously instructed the jury on the charges, and counsel failed to object. Specifically, the issue concerns the incident at the gas station. Before trial, the prosecution stated that it was pursuing only attempted robbery on information no. 1980-0034 relating to the events at the service station (N.T. 34). The lower court’s charge erroneously referred to “robbery and attempted robbery” on this information and counsel offered no correction.

Upon review of the record, we are satisfied that this misstatement did not affect the prosecutor’s handling of the case, the lower court’s trial rulings, or prejudice appellant’s alibi and character defenses. The lower court promptly gave an adequate curative instruction on its own motion (N.T. 608), and the jury returned a verdict consistent with that instruction. Thus, counsel’s failure to object was not ineffectiveness. Appellant’s contention that counsel was ineffective in not requesting an alibi defense instruction similarly has no merit because the lower court gave an adequate instruction on this subject (N.T. 596).

Appellant claims that prejudicial remarks on the part of the prosecution constituted error during his trial. He argues that the lower court erred in not granting a mistrial when he objected to the prosecutor’s pointing at him (N.T. 534). He also contends that counsel was ineffective in not objecting to several allegedly improper comments by the prosecutor. Comments by the prosecutor do not constitute reversible error unless their unavoidable effect would be to prejudice the jury, forming in their minds such fixed bias and hostility toward the defendant that they could not weigh the evidence objectively and render a true verdict. Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979); Commonwealth v. Nutter, 256 Pa.Super.Ct. 111, 389 A.2d 626 (1978). Because emphasis, tone of voice, and the jury’s reaction influence this determination, the trial judge must first rule upon the comments, and an appellate court is limited to reviewing whether the trial court abused its discretion. Id. The record does not suggest that the lower court abused its discretion in overruling the objection to the prosecutor’s pointing. Also, despite appellant’s contentions, the prosecutor neither stated his personal opinion of guilt nor misstated the evidence. Rather, in each instance complained of the prosecutor identified permissible factors and inferences for the jury to consider when it determined the weight and credibility of testimony. The prosecutor’s comments on the legal issue of reasonable doubt were not stated in a manner calculated to confuse the jury or to usurp the court’s role in instructing it on the law. See Commonwealth v. Gwaltney, 479 Pa. 88, 387 A.2d 848 (1978); Commonwealth v. Benson, 280 Pa.Super.Ct. 20, 421 A.2d 383 (1980). Consequently, because the prosecutor’s comments were not unduly prejudicial, any further objection to them would have lacked arguable merit.

Appellant contends next that the evidence was insufficient to convict him of attempting to rob the gas station and the subsequent robbery of the bar. We disagree. The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all reasonable inferences favorable to it, there is sufficient evidence to find every element of the crimes and the identity of the accused beyond a reasonable doubt. Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979).

Appellant contends the evidence was insufficient because the only direct identification and the essential circumstantial evidence was supplied by David Mardis, who, as a co-participant in the crimes, was a corrupt source unworthy of belief. “Where parties in crime testify against each other, their testimony must be recognized as coming from a corrupt source and therefore must be subjected to the closest scrutiny.” Commonwealth v. Farquharson, 467 Pa. 50, 61, 354 A.2d 545, 550-51 (1976). However, the issue of credibility is for the factfinder to resolve upon proper instructions by the trial court. The lower court properly instructed the jury on the manner in which to view Mardis’s testimony. Moreover, Mardis’s testimony was consistent throughout and corroborated both as to events and identifying details by other witnesses. It is within the province of the jury to accept or reject evidence presented by the Commonwealth. Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977), affirmed after new trial, 275 Pa.Super. 530, 419 A.2d 27 (1980). We cannot agree with appellant that Mardis’s testimony was so unreliable that the verdict was against the weight of the evidence. The lower court, which observed the testimony, found it consistent and corroborated. We believe that the jury reasonably believed Mardis, and we therefore find the evidence sufficient to sustain both convictions.

Appellant contends finally that his sentence of concurrent prison terms of ten-to-twenty years for the robbery and five-to-ten years for the attempted robbery was manifestly excessive and based on improper considerations. A trial court has wide discretion in sentencing and will not be reversed absent an abuse of discretion of error of law. Commonwealth v. Morrison, 265 Pa.Super.Ct. 363, 401 A.2d 1348 (1979). “[T]o constitute an abuse of discretion, a sentence must either exceed the statutory limits, or be manifestly excessive.” Commonwealth v. Michenfelder, 268 Pa.Super.Ct. 424, 427, 408 A.2d 860, 862 (1979). In reviewing a sentence challenged as excessive, we must review both the sentence itself and the process by which the sentencing judge reached it. Commonwealth v. Kraft, 294 Pa.Super.Ct. 599, 440 A.2d 627 (1982). See 42 Pa.C.S.A. § 9721; Pa.R.Crim.P. 1405; Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Appellant contends the lower court relied upon impermissible considerations when it considered his admission that he had “cased” a bank, (N.T. Sentence Proceedings, 32), and that his siblings, despite their broken home, had led respectable lives without turning to crime (N.T. 33). A court may consider criminal activity or preparation for crimes as factors in sentencing even though no arrest or conviction resulted. See Commonwealth v. Vernille, 275 Pa.Super.Ct. 263, 418 A.2d 713 (1980). Family circumstances and the defendant’s reaction to them are likewise permissible considerations in individual sentencing. Appellant argues next that the lower court gave insufficient weight to the mitigating factors of his age, his need to cure alcoholism, that no actual violence occurred in the crimes, and the lack of rehabilitation facilities in prison. However, the record reveals that the lower court fairly assessed appellant’s need and potential for rehabilitation and prison’s abilities to provide for it. Against the lack of actual violence, the lower court considered the great potential for violence in these gunpoint crimes, and that appellant showed a propensity to commit crimes. The lower court thus acted within its discretion in imposing sentence, and, accordingly, we affirm.

Judgment of sentence affirmed.

POPOVICH, J., concurs in the result.

      . Appellant complains of (1) alleged statements of the prosecutor’s personal opinion of guilt, (N.T. 525 ("I submit ... that if your co-fellow was [appellant] you were likely to get [only five dollars from the robbery]”); 532 ("[appellant] has the most convenient memory ... he told [the trooper], T can’t remember one single thing....’ Yet, ... six months later .... he lays it out for you.”); 556 (“I submit that the presumption has been overcome.”); (2) misstatements of the evidence or suggestions of impermissible inferences, 528 ("[the service station proprietor] ... knew that he was about his height, the level at which they were shooting.”); 529-30 ("[an alibi witness] ... can’t tell you one single thing that happened after twelve o’clock ... didn’t go to the police back in September ... And ... take into account ... friendship.”); 554 (consider "the kind of person that would ... walk [ ] into a [crowded] place, not knowing that somebody might have a shotgun ... a weapon ... and blow your head off—a very, very reckless act.”); and (3) alleged misstatement of the law, 554 ("reasonable doubt ... [is] not to a mathematical certainty____ How does ninety-nine percent strike you? Ninety-nine percent. Well, what is a reasonable doubt?”)


text:
    July 1, 1983.
    463 A.2d 23
    Cline, Appellant v. Cline.
    Argued January 13, 1983.
    John A. Mika, for appellant; Robert Y. Cassol, for appellee.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   Order affirmed.


text:
    463 A.2d 23
    Commonwealth v. Anderson, Appellant.
    Submitted June 16, 1982.
    Harry E. Knafelc, for appellant; Edward J. Tocci, District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   The judgment of sentence is affirmed.


text:
    463 A.2d 24
    Commonwealth v. Ashford, Appellant.
    Submitted April 26, 1983.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    463 A.2d 24
    Commonwealth v. Delozier, Appellant.

      Submitted November 8, 1982.
    David J. Kaltenbaugh, Assistant Public Defender, for appellant; D. Long, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    463 A.2d 24
    Commonwealth v. DeMarco, Appellant.
    Petition for Allowance of Appeal Denied Sept. 30, 1983.
    Argued March 1, 1983.
    Richard M. Heller, for appellant; Vram Nedurian, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., CAVANAUGH and WIEAND, JJ.
   Judgment of sentence affirmed.

CAVANAUGH, J., filed a memorandum dissenting statement.


text:
    463 A.2d 25
    Commonwealth v. Dumont, Appellant.

      Submitted June 17, 1982.
    John A. Halley, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   The order denying post conviction relief is affirmed.


text:
    463 A.2d 25
    Commonwealth v. Fields, Appellant.
    Submitted November 4, 1982.
    John W. Packel, Chief, Appeals, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    463 A.2d 25
    Commonwealth v. Hennessey, Appellant.
    Petition for Allowance of Appeal Denied Oct. 18, 1983.
    Argued November 15, 1982.
    Stuart Wilder, for appellant; Stephen B. Harris, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and WATKINS, JJ.
   The judgment of sentence of the learned Bucks County Common Pleas Court Judge John J. Bodley is affirmed.


text:
    463 A.2d 25
    Commonwealth v. Hoffman, Jr., Appellant.
    Submitted January 12, 1983.
    Eugene J. Julian, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., POPOVICH and VAN der VOORT, JJ.
   The order of the lower court is affirmed.

POPOVICH, J., filed a memorandum dissenting statement.


text:
    463 A.2d 26
    Commonwealth v. Katzin, Appellant.
    Submitted May 10, 1982.
    Andrew G. Gay, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Affirmed.


text:
    463 A.2d 26
    Commonwealth v. Pullie, Appellant.
    Submitted March 30, 1983.
    John H. Corbett, Jr., Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    463 A.2d 26
    Commonwealth v. Santiago, Appellant.
    Submitted April 27, 1983.
    Robert A. Longo, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.

      Before ROWLEY, WIEAND and POPOVICH, JJ.
   Order affirmed.


text:
    463 A.2d 27
    Commonwealth v. Warner, Appellant.
    Submitted April 27, 1983.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    463 A.2d 27
    Commonwealth v. White, Appellant.
    Petition for Allowance of Appeal Denied June 12, 1984.
    Submitted June 22, 1982.
    Melvin B. Goldstein, for appellant; Michael Turner, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Juanita Kidd Stout is affirmed.


text:
    463 A.2d 27
    Commonwealth ex rel., Kondrla, Appellant v. Kondrla.
    Submitted January 12, 1983.
    Daniel Lee Webster, Assistant Public Defender, for Kondrla, appellant; James N. Fitzsimmons, Jr., for appellee.
    Before CERCONE, P.J., POPOVICH and VAN der VOORT, JJ.
   Order affirmed.


text:
    463 A.2d 28
    Cunningham, Appellant v. Cunningham.
    Argued March 1, 1983.
    Robert J. Matthews, for appellant; Bruce Allen Nicholson, for appellee.

      Before CERCONE, P.J., CAVANAUGH and WIEAND, JJ.
   The order of the lower court is affirmed.

WIEAND, J., dissented.


text:
    463 A.2d 28
    Estate of Schachter. Appeal of Sidney West.
    Argued February 15, 1983.
    William D. Parry, for appellant; J. Aker, for participating party.
    Before CERCONE, P.J., JOHNSON and MONTEMURO, JJ.
   We affirm the decree of December 22, 1981.


text:
    463 A.2d 28
    In re Shook. Appeal of Alverta Shook. Shook v. Shook, Appellant.
    Argued April 14, 1983.
    Robert Lee Steinberg, for appellant; Emil William I. Kantra, II, for appellees.

      Before HESTER, POPOVICH and HOFFMAN, JJ.
   Orders affirmed.

HESTER, J., filed a memorandum concurring statement.


text:
    463 A.2d 28
    Melzer, Appellant v. Witsberger.
    Petition for Allowance of Appeal Granted Oct. 18, 1983.
    Argued February 24, 1983.
    Harry J. Cancelmi, Jr., for appellant; James H. McCune, for appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   The order of the lower court is affirmed.


text:
    July 8, 1983.
    463 A.2d 29
    Chapman Corp., Appellant v. Haynes, et al. Baldwin Electric, Appellant v. Haynes, et al.
    Submitted February 23, 1983.
    Eugene J. Julian, for appellants; Frank C. Carroll, for appellee.

      Before SPAETH, BROSKY and MONTEMURO, JJ.
   Order affirmed.


text:
    463 A.2d 29
    Commonwealth v. Bethel, Appellant.
    Submitted May 3, 1983.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, MONTGOMERY and HOFFMAN, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge. Marvin R. Halbert is affirmed.


text:
    463 A.2d 29
    Commonwealth v. Carter, Appellant.
    Submitted March 24, 1983.
    Jacquelyn A. Barnes, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   The order denying appellant’s petition for P.C.H.A. relief is affirmed.


text:
    463 A.2d 29
    Commonwealth v. Edney, Appellant.
    Submitted April 12, 1983.
    Harold Diamond, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, MONTEMURO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    463 A.2d 30
    Commonwealth v. Gaerttner, Appellant.
    Argued May 20, 1982.
    John Bozza, for appellant; Paul J. Susko, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    463 A.2d 30
    Commonwealth v. Heiney, Appellant.
    Petition for Allowance of Appeal Denied Nov. 9, 1983.
    Submitted January 7, 1983.
    George Howard Eager, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   Affirmed.

SPAETH, J., filed a memorandum concurring opinion.


text:
    463 A.2d 30
    Commonwealth v. Holt, Jr., Appellant.
    Submitted February 23, 1983.
    George Retos, Jr., for appellant; Charles J. Morris, District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   The judgment of sentence is affirmed.


text:
    463 A.2d 31
    Commonwealth v. Johnson, Jr., Appellant.
    Submitted November 4, 1982.
    David H. Kubert, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   Order affirmed.


text:
    463 A.2d 31
    Commonwealth v. Jones, Appellant.
    Submitted April 13, 1983.
    John J. Fioravanti, Jr., Assistant Public Defender, for appellant; Michael J. Kane, District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    463 A.2d 31
    Commonwealth v. Marshall a/k/a Cooper, Appellant.

      Submitted November 3, 1982.
    Barry H. Oxenburg, for appellant; Gaele M. Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   Order affirmed.


text:
    463 A.2d 31
    Commonwealth v. McClennon, Appellant.
    Argued March 24, 1983.
    Edward M. Kopanski, for appellant; Robert Ciaffa, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    463 A.2d 32
    Commonwealth v. Moser, Appellant.
    Petition for Allowance of Appeal Denied Sept. 30, 1983.
    Submitted April 27, 1983.
    Vincent J. Quinn, for appellant; Joseph C. Madenspacher, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    463 A.2d 32
    Commonwealth v. Munizza, Appellant.
    Submitted June 13, 1980.
    John W. Packel, Chief, Appeals, Assistant Public Defender, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.

CERCONE, P.J., dissented.


text:
    463 A.2d 32
    Commonwealth v. Palmer, Appellant.
    Submitted March 1, 1983.
    Jonathan Blum, Assistant Public Defender, for appellant; Robert J. Gillespie, Jr., District Attorney, for Commonwealth, appellee.

      Before CERCONE, P.J., CAVANAUGH and WIEAND, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    463 A.2d 33
    Commonwealth v. Ponds, Appellant.
    Petition for Allowance of Appeal Denied Oct. 6, 1983.
    Argued March 2, 1983.
    Leslie J. Carson, Jr., for appellant; Steven J. Cooperstein, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., CAVANAUGH and WIEAND, JJ.
   The order of the lower court is affirmed.

CAVANAUGH, J., filed a memorandum dissenting opinion.


text:
    463 A.2d 33
    Commonwealth v. Seshens, Appellant.
    Submitted April 28, 1983.
    H. Spirt, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.

      Before ROWLEY, WIEAND and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    463 A.2d 33
    Commonwealth v. Smith, Appellant.
    Argued February 3, 1982.
    Robert J. Donatoni, Assistant Public Defender, for appellant; Robert P. Brendza, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   The order of the learned Chester County Common Pleas Court President Judge Dominic T. Marrone is affirmed.


text:
    463 A.2d 33
    Commonwealth v. Sortino, Appellant.
    Petition for Allowance of Appeal Denied Oct. 17, 1983.
    Submitted June 22, 1982.
    Renald S. Baratta, for appellant; Richard H. Pepper, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    463 A.2d 34
    Commonwealth v. Strickler, Appellant.
    Submitted April 5, 1983.
    David Zwanetz, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   Order affirmed.


text:
    463 A.2d 34
    Commonwealth v. Towns, Jr., Appellant.
    Submitted April 26, 1983.
    Francis E. Gleeson, Jr., for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   Judgments of sentence affirmed.


text:
    463 A.2d 34
    Commonwealth v. Veneri, Appellant.
    Petition for Allowance of Appeal Denied Oct. 3, 1983.

      Submitted February 24, 1982.
    Anthony Veneri, appellant, in propria persona; Vram Nedurian, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and ROWLEY, JJ.
   Judgment of sentence affirmed.

SPAETH, J., filed a memorandum concurring statement.


text:
    463 A.2d 35
    Commonwealth v. White, Appellant.
    Submitted March 8, 1982.
    George W. Westervelt, for appellant; Edmund Gerald Flynn, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    463 A.2d 35
    Hild v. Fotiadis, et ux., Appellants.
    Petition for Allowance of Appeal Denied Oct. 17, 1983.

      Argued April 6, 1983.
    George Gershenfeld, for appellants; Samuel C. Stretton, for appel-lee.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   The order of the lower court is affirmed.


text:
    463 A.2d 35
    In the Matter of L.A.C. Appeal of The City of Philadelphia Department of Public Welfare.
    Argued March 23, 1983.
    Denise Rae Scott-Jones, Assistant City Solicitor, for appellant; Julius B. Jackson, III, for appellee; William D. Moyer, Jr., for participating party.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Order affirmed.


text:
    463 A.2d 35
    Miller v. Miller, Appellant.
    Submitted February 4, 1983.
    Michael D. Fioretti, for appellant; George P. Stahl, Jr., for appellee.

      Before WIEAND, McEWEN and MONTGOMERY, JJ.
   Order affirmed.


text:
    463 A.2d 36
    Steele, Jr. et al. v. Landsittel v. Marsh Realty, Appellant.
    Submitted February 24, 1983.
    Carl Richard Schiffman, for appellant; Stanley Bruce Lederman, for Steele, appellees; and David Joseph Fasulo, for Landsittel, appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   The order of the. lower court is affirmed.