text:
    471 A.2d 885
    COMMONWEALTH of Pennsylvania v. Francis SANDERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 22, 1983.
    Filed Feb. 10, 1984.

      Irwin Paul, Philadelphia, for appellant.
    Scott Breidenhach, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   MONTEMURO, Judge:

On November 6, 1981, the appellant, Francis Sanders, was found guilty after a jury trial, on one count each of criminal conspiracy, theft by receiving stolen property, violation of the Pharmacy Act, and criminal attempt to violate the Pharmacy Act. He was also found guilty on two counts of forgery. The charges arose out of an incident wherein the appellant allegedly attempted to procure prescribed drugs by means of a forged prescription slip stolen from the office of Dr. Anthony J. Giaimo.

The appellant filed post-verdict motions in arrest of judgment and for a new trial, which were denied by the trial court. He was subsequently sentenced to one (1) to five (5) years imprisonment on the criminal conspiracy charge. Sentence was suspended on all other charges. This appeal followed.

Two issues are raised for our consideration; however, because we find only one of them to be meritorious, we need only discuss that issue, to wit: the trial court erred in commenting on the appellant’s post-arrest silence. After reviewing the trial transcript in light of the relevant law, we agree that a prejudicial error was committed and consequently vacate the judgment of sentence and remand the case for a new trial.

In order to understand the appellant’s contention, it is necessary to establish the factual context. The appellant was a chronic alcoholic who suffered from an internal disorder called pancreatitis. For a period of twelve (12) to fifteen (15) months he was being treated for this disorder by Dr. Anthony J. Giaimo. Dr. Giaimo’s treatment was principally to prescribe for the appellant Tylenol with Codeine # 4 for pain, and sometimes another drug, Doriden, when the appellant complained of insomnia.

On April 10, 1981, the appellant visited Dr. Giaimo. Dr. Giaimo testified that on that occasion he prescribed only Tylenol with Codeine for the appellant. On April 12, 1981, the appellant, along with two female companions, drove to Ralph’s Pharmacy in Whitemarsh Township. The appellant presented two prescription slips to Ralph Tucci, the proprietor and pharmacist. One of the slips was for Tylenol with Codeine, and the other was for Doriden; both were putatively signed and stamped by Dr. Anthony J. Giaimo.

The pharmacist, Mr. Tucci, had filled prescriptions for the appellant previously, but on this occasion he discerned a difference between the signatures on the two prescription slips. Mr. Tucci told the appellant that he would have to verify the prescriptions with Dr. Giaimo. Mr. Tucci called Dr. Giaimo who said that he would notify the police and also come to the pharmacy himself. Dr. Giaimo testified that he was suspicious because several of his prescription slips had been stolen recently.

Soon thereafter, a Whitemarsh Township police officer arrived, conversed with Mr. Tucci, and compared the signatures on the prescription slips. Dr. Giaimo then arrived, and after examining the prescription slips, disclaimed writing the prescription for Doriden. He also identified the appellant and the two females as patients of his. At that point, the police officer placed the appellant under arrest. A search of the vehicle turned up sixteen (16) other prescription slips made out for either Francis Sanders or Patricia Parker Goronski [one of the females].

The appellant testified that on April 10, 1981, he visited Dr. Giaimo and received prescriptions for both Tylenol and Doriden. After cross-examination and redirect examination, the trial judge instigated the following exchange:

BY THE COURT:
Q. Where were you seated in the car when you went to Mr. Tucci’s pharmacy?
A. I was in the back seat.
Q. And what kind of a car was it?
A. I think it was an old beat-up — I don’t know. It wasn’t in too good a shape of a car. I guess it was a Plymouth, you know, ’60-something Plymouth, ’64, ’65 Plymouth.
Q. Was it a two-door or four-door car?
A. I can’t recall, Your Honor.
Q. Where was Patty seated?
A. She was seated on the right passenger side in the front.
Q. While you were in the car from the time you went to Main Street in the Plymouth, did you see any prescription blanks in that car?
A. No, I didn’t sir.
Q. You didn’t?
A. No. I didn’t.
Q. So you don’t know that there were any prescription blanks on the floor?
A. No. I don’t.
Q. .You didn’t observe anything on the floor?
A. No. I didn’t observe anything on the floor. In the back seat, if there was anything, I didn’t take notice.
Q. You didn’t notice anything on the front seat either?
A. Like I said, I was sitting in the back. No, I didn’t.
Q. Now, when the officer came, were you inside the pharmacy or were you outside the pharmacy?
A. I was inside the pharmacy.
Q. When the officer approached you and said, come along with me, and he had the two prescriptions which you handed to the pharmacist — is that correct?
A. Yes, it is.
Q. —didn’t you question the doctor as to why these were being questioned since you had just gotten them a day or so before?
A. I didn’t have time to do anything. They threw me into a car and handcuffed my hands behind my back.
Q. Was the doctor there at the time?
A. No. He came about five minutes after the police came. He wasn’t there.
Q. Were you still at the scene when the doctor came?
A. Yes, I was.

(N.T. November 5, 1981, at 56-58). At this point, the appellant’s trial counsel requested a sidebar conference at which he moved for a mistrial on the ground that the trial judge’s question called for a response which alerted the jury to the appellant’s failure to protest his innocence at the time of his arrest. In response to the motion, the trial judge said:

THE COURT: Mistrial is denied. I am clearing up something in terms of absolute general palaver that he got on the stand and said to the jury. The jury is certainly entitled to know where he was seated in the car, what he had an opportunity to observe and whether or not he made a protest to the police or to the doctor who arrived at the scene who purportedly gave him this prescription.

(N.T. November 15, 1981, at 58-59). Moreover, in the trial court’s Pa.R.A.P.1925 opinion, it is stated: “The court was merely attempting to impeach defendant’s credibility by pointing out an inconsistency between his statements and his actions at the time of arrest.” Lower Court Opinion at 7.

In Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), the supreme court ordered that a new trial be granted to a defendant who had been convicted of voluntary manslaughter. At trial, the defendant testified that he believed he was being shot at, and thus, only fired back in self-defense. On cross-examination, the prosecutor asked the defendant if he had ever informed the police of the potentially exculpatory facts. Defense counsel’s motion for mistrial was denied. The supreme court held that this was error, stating:

The prejudice to the defendant resulting from reference to his silence is substantial. While it is efficacious for the Commonwealth to attempt to uncover a fabricated version of events, in light of' the ‘insolubly ambiguous’ nature of silence on the part of the accused, Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91, 97 (1976), we do not think it sufficiently probative of an inconsistency with his in-court testimony to warrant allowance of any reference at trial to the silence. Accordingly, the Commonwealth must seek to impeach a defendant’s relation of events by reference only to inconsistencies as they factually exist, not to the purported inconsistency between silence at arrest and testimony at trial. Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related his version to the police at the time of arrest when in fact he remained silent. Doyle v. Ohio, Id. at 619, n. 11, 96 S.Ct. at 2245, n. 11, 49 L.Ed.2d at 98, n. 11. Absent such an assertion, the reference by the prosecutor to previous silence is impermissible and reversible error.

Id. 499 Pa. at 583, 454 A.2d at 539-40.

After examining the transcript, we find no indication that the appellant ever asserted at trial that he protested his innocence at the time of arrest. Therefore, the attempt by the trial judge to point out the appellant’s failure to do so is error, for which a new trial is warranted.

We are aware that in the present case it was the trial judge, not the prosecutor who brought to light the appellant’s post-arrest silence. This factor, however, buttresses our decision. “A question so partisan in nature, although perhaps excusable if made by opposing counsel on cross-examination, has no place in a judge’s conduct of a trial ...” Commonwealth v. Williams, 468 Pa. 453, 461-62, 364 A.2d 281, 286 (1976). (Footnote omitted). It is not the province of a trial judge in a criminal case to attempt to impeach the testimony of the defendant. The prosecution function is best left to the attorney for the Commonwealth. “The prerequisite of a fair trial is that the trial judge conduct the trial with absolute impartiality. The judge must not, by his comments or demeanor, or in any other way, display any partiality to or prejudice against either party or either attorney.” Commonwealth v. Nicholson, 308 Pa.Super. 370, 391, 454 A.2d 581, 591 (1982) (dissenting opinion by Spaeth, J.). Although the trial judge also stated that he was “clarifying for the jury exactly what transpired ____” (N.T. November 15, 1981, at 59), we must conclude that in doing so he stepped outside the parameters of the judicial function.

Judgment of Sentence is vacated. Remand for new trial. Jurisdiction is not retained.

      . 18 Pa.C.S.A. § 903

      . 18 Pa.C.S.A. § 3925

      . 63 P.S. § 390-8(13)

      . 18 Pa.C.S.A. § 901

      . 18 Pa.C.S.A. § 4101

      . The discrepancy in testimony concerning the presence of Dr. Giaimo at the time of arrest must be resolved in favor of the Commonwealth. This, however, does not affect our decision.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    471 A.2d 888
    COMMONWEALTH of Pennsylvania v. Warren LACY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1983.
    Filed Feb. 10, 1984.

      Douglas M. Johnson, Public Defender, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant challenges the constitutionality of the Retail Theft Act and the denial of his motion for mistrial because of alleged prosecutorial misconduct. We find no merit in appellant’s claims and, accordingly, affirm the judgment of sentence.

On August 24, 1981, appellant was arrested as he left a Clover Department store and charged with his third offense of retail theft. A search by a Clover security guard yielded Clover merchandise for which appellant had not paid, in a box in appellant’s possession. Appellant’s motion to suppress was denied. Following a jury trial, appellant was found guilty of retail theft and sentenced to a term of imprisonment of three-to-seven years. This appeal followed.

Appellant challenges the constitutionality of the Retail Theft Act, alleging specifically that the fourth amendment guidelines protecting against unreasonable searches and seizures must be followed by private security guards because they act under color of state law. We disagree. The Retail Theft statute, 18 Pa.C.S.A. § 3929(d), provides that:

A peace officer, merchant or merchant’s employee or an agent under contract with a merchant, who has probable cause to believe that retail theft has occurred or is occurring on or about a store or other retail merchantile establishment and who has probable cause to believe that a specific person has committed or is committing the retail theft may detain the suspect in a reasonable manner for a reasonable time on or off the premises for all or any of the following purposes: to require the suspect to identify himself, to verify such identification, to determine whether such suspect has in his possession unpurchased merchandise taken from the merchantile establishment and, if so, to recover such merchandise, to inform a peace officer, or to institute criminal proceedings against the suspect. Such detention shall not impose civil or criminal liability upon the peace officer, merchant, employee, or agent so detaining.

In Commonwealth v. Martin, 300 Pa.Superior Ct. 497, 446 A.2d 965 (1982), the defendant claimed that a search made pursuant to the Retail Theft Act was illegal because it empowered the private guards to act under color of state law. Our court considered the lead taken by other jurisdictions with statutes granting substantially similar authority to private security guards and noted that “[tjhose courts, finding that such statutes are a codification of the common law’s ‘shop-keeper’s privilege’, have held that such statutes do not create police authority in private persons.” Id., 300 Pa.Superior Ct. at 501, 446 A.2d at 967. The Court then held that “store employees who stop, detain and search individuals who they reasonably suspect of retail theft do not act under color of state authority. Id. It therefore follows from the holding in Commonwealth v. Martin, supra, that 18 Pa.C.S.A. § 3929(d) is constitutional. Accordingly, because the Clover security guards were acting in a private capacity, rather than under color of state law, they were entitled, upon probable cause, to search appellant without applying for or receiving a search warrant. The record clearly supports the fact that the security guards had probable cause to suspect appellant of retail theft. Appellant was seen by a door guard entering the store with a box, and was then observed by another guard “tak[ing] four sweaters off the rack and stuffing] them in his box, closing] the box and ... walking out of the store.” (N.T. February 8, 1982 at 35). These observations were more than sufficient to support the guards’ belief that appellant was committing theft.

Appellant contends also that the prosecutor’s comment that defense counsel had “clouded the issues” so inflamed the jury as to require a new trial. This claim also lacks merit. “[N]ot every intemperate or uncalled for remark by the prosecution requires a new trial.” Commonwealth v. Youngkin, 285 Pa.Superior Ct. 417, 430, 427 A.2d 1356, 1362 (1981). See also Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973). Although a prosecutor’s trial conduct must be neither vindictive nor in any manner influence the jury by arousing their prejudicies, Commonwealth v. Starks, 479 Pa. 51, 56, 387 A.2d 829, 831 (1978), “[cjomments by the district attorney do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Van Cliff, 483 Pa. 576, 582, 586, 397 A.2d 1173, 1176, 1178 (1979), quoting Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974). Here, appellant complains of an isolated comment made in the prosecution’s closing argument. Although the prosecutor’s remark may have constituted reversible error if made in combination with other potentially prejudicial comments, taken alone, this statement did not sufficiently inflame the jury’s prejudicies. Appellant complained of no other misconduct and the lower court cured any possible prejudicial impact inherent in the prosecutor’s remark when it charged the jury as follows:

[I]n deciding the case, you consider the evidence in light of the reasons and arguments made by counsel. It is obviously both the right and duty of the attorneys to present the evidence and testimony in a manner which is obviously most favorable to the side they represent. You should be guided by the arguments of counsel to the extent that they are supported by the evidence insofar as they are supported by the facts as you find them and, of course, insofar as they aid you in applying your own reason and common sense.

(N.T. February 10, 1982 at 106-07). Thus, we do not find that the prosecutor’s isolated remark constituted reversible error.

Affirmed.

      . Appellant’s reliance on Commonwealth v. Eshelman, 477 Pa. 93, 383 A.2d 838 (1978), is misplaced. In Eshelman an off-duty auxiliary policeman discovered a car parked in a woody area containing packages of what later proved to be drying marijuana. The auxiliary policeman, suspicious because of information he had received through the police force, brought the package to the city police, who arranged for the auxiliary policeman to take the package to the state police for additional testing. Our Supreme Court concluded that the auxiliary policeman was acting as a police officer in taking the package and presenting it to the police. Hence, because the search and seizure was conducted without a warrant, the defendant was entitled to have the evidence suppressed. In the instant case, however, pursuant to 18 Pa.C.S.A. § 3929(d), the Clover security guards acted only in the capacity of private citizens; they did not, in any way, assume the roles of police officers.

      . Appellant erroneously relies on Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975), and Commonwealth v. Long, 258 Pa.Superior Ct. 312, 392 A.2d 810 (1978), in support of his argument that the prosecutor’s remarks constitutes reversible error. In each of those cases the prosecution made many prejudicial remarks, including comments about defense counsel’s having "clouded the issues,” and the court acknowledged that it was the cumulative effect of the prosecution’s remarks that required the granting of a new trial. See, e.g., Commonwealth v. Collins, supra 462 Pa. at 499, 341 A.2d at 493 ("The record is replete with instances of prosecutorial misconduct which permit only one reasonable conclusion: from the beginning of the trial, the prosecutor adopted a strategy calculated to try the case on his own terms rather than within the rules of evidence and the standards of professional conduct.").

      . Because of our holding, we need not address appellant’s claim that he was erroneously denied a suppression hearing because the Clover security guards acted as agents of the Cheltenham Police Department.


author:
HESTER, Judge:
      SPAETH, Judge,

text:
    471 A.2d 891
    Paul TIMBROOK, Administrator of the Estate of David M. Timbrook, Deceased v. FOREMOST INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 9, 1983.
    Filed Feb. 10, 1984.
    Petition for Allowance of Appeal Denied June 13, 1984.

      Murray R. Garber, Bradford, for appellant.
    Robert L. Saunders, Bradford, for appellee.
    Before CERCONE, President Judge, and SPAETH and HESTER, JJ.
   HESTER, Judge:

This is an appeal from the denial of a motion for directed verdict and for judgment non obstante veredicto (hereinafter judgment n.o.v.). Appellee, administrator of the estate of David M. Timbrook, sought and recovered an award against appellant as the insurer of the deceased. Appellant argues on appeal that the lower court erred in not granting its motions for a directed verdict and judgment n.o.v. We agree and, therefore, we reverse.

The standard which we employ when reviewing the denial of a motion for directed verdict and a motion for judgment n.o.v. is the same. We will only reverse the lower court when we find “an abuse of discretion or an error of law which controlled the outcome of the case.” McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982). In ruling upon these motions, the trial judge must consider “the evidence, together with all reasonable inferences that may be drawn therefrom ... in the light most favorable to the verdict winner.” Carrender v. Fitterer, 310 Pa.Super. 433, 436, 456 A.2d 1013, 1014 (1983). Accepting as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made, and rejecting all testimony and inferences to the contrary, the trial judge must grant said motions when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case. Thomas v. Allegheny & Eastern Coal Co., 309 Pa.Super. 333, 455 A.2d 637 (1982).

The evidence adduced at the one-day trial was undisputed and uncontradicted. Decedent was a career forester. Following his graduation from college, where he was awarded a degree in forestry, he was hired by the state of Washington as a forest fire-fighter. From May, 1976, until the date of his death, August 21, 1979, he was employed by Columbia Helicopters, a company engaged in harvesting timber. During this period he worked in Canada, Washington, Oregon, Montana, and three different locations in Idaho as a logger or woods boss. Since housing accommodations were difficult to locate in these areas, the decedent purchased a trailer. This trailer constituted his sole residence from the date of its acquisition in 1977 until the date of his death. He had no residence in Idaho or in any location in the Pacific northwest other than the aforementioned trailer. The decedent died as the result of a logging accident which occurred while he was engaged in the course of his employment as a woods boss.

The decedent had maintained a policy of liability insurance on his travel trailer. Under the caption entitled “Scheduled Medical Benefits Coverage,” the policy stated:

“We’ll pay YOU for a described injury YOU sustain when using YOUR travel trailer as a vacation residence.” (Emphasis in original).

One such described injury was the loss of life; in that event, the policy provided for the payment of $10,000 to the estate of the insured. The policy specifically omitted coverage for “claims arising out of YOUR business pursuits.”

Appellant contended that the decedent’s use of the vehicle as a residence while on the job precluded recovery pursuant to the terms of the agreement. The jury entered a verdict for appellee and awarded $10,000 to the decedent’s estate. Motions for a directed verdict and for judgment n.o.v. were denied by the lower court.

We believe that the trial judge committed an error of law. The construction of a written contract of insurance is a matter of law for the court. Adelman v. State Farm Mutual Insurance Co., 255 Pa.Super. 116, 386 A.2d 535 (1978). However, courts do not enjoy a license to rewrite the terms of a policy or to bestow upon the words a construction which clearly conflicts with the accepted and plain meaning of the language used. Id.; Pennsylvania Manufacturers Association Insurance Co. v. Aetna Casualty & Surety Insurance Co., 426 Pa. 453, 233 A.2d 548 (1967). “Vacation” has been previously defined by this court as:

“a recess or leave of absence, a respite from active duty; an intermission or rest period during which activity or work is suspended. It is a period of freedom from duty but not the end of employment.”

Dauber’s Case, 151 Pa.Super. 293, 296, 30 A.2d 214, 216 (1943). Clearly, reasonably intelligent men, upon reading the challenged language in this policy, “would not honestly differ as to its meaning.” Celley v. Mutual Benefit Health and Accident Association, 229 Pa.Super. 475, 481-82, 324 A.2d 430, 434 (1974). The word “vacation,” then, cannot be characterized as ambiguous.

There was no evidence proffered by appellee to substantiate a conclusion that any use of the vehicle made by the insured at the date and time of the accident came within the meaning of the term “vacation” as so defined by either this court or according to its plain and ordinary meaning. It is true that the deceased was using the trailer as a residence, but he was not killed while on vacation, nor while the vehicle was being used as a vacation residence. The decedent had lived nowhere else for several years. He was engaged in his normal occupation at the time of his tragic death. His daily schedule involved leaving the trailer in the morning, working in the forest during the day, and returning to the trailer at the conclusion of his labors. It was his home.

The uncontroverted facts as revealed at trial cannot, in an untortured fashion, meet the qualifications necessary for recovery under this policy. Appellee introduced no testimony that the insured was utilizing the trailer as a vacation vehicle at the time of the accident.

Thus the evidence, even when viewed in the light most favorable to appellee, simply reveals no evidentiary support for his position. Since there was no. dispute as to the admitted facts, this case should not have been submitted to the jury. Appellant’s motion for a directed verdict and judgment n.o.v. should have been granted.

We therefore reverse the order of the lower court denying appellant’s post-trial motions and enter judgment for appellant.

SPAETH, J., filed a concurring statement.

SPAETH, Judge,

concurring:

The question whether appellee is entitled to recover under the insurance policy does not turn on whether the decedent was on vacation at the time of his death, as the majority suggests. The policy covers “injuries] ... sustained] when using YOUR travel trailer as a vacation residence.” The policy does not define “vacation” or “vacation residence”. Had decedent been killed while “using” the vehicle, he would have been “using [the vehicle] as a vacation residence”, for that’s what the vehicle was. But since decedent was not killed while using the vehicle, appellee is not entitled to recover under the policy, and judgment n.o.v. is proper.

      . The only witness to testify at trial was appellee, father of the deceased.

      . In light of our disposition of this case, there is no need to grant appellant’s request for the lesser relief of a new trial. However, we do concur that the lower court also committed reversible error in its charge to the jury. The issue was not whether the trailer was a vacation residence, as the trial judge framed the question, but rather whether the decedent was using the trailer as a vacation residence at the time of his death. As we stated above, there being no factual dispute, and no proof to support appellee’s case, judgment must be entered for appellant.


author: HESTER, Judge:

text:
    471 A.2d 894
    In the Matter of the ADOPTION OF J.D.P. Appeal of GLENN D.P.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1983.
    Filed Feb. 10, 1984.

      Stephanie Domitrovich, Erie, for appellant.
    Dennis V. Williams, Erie, for appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.
   HESTER, Judge:

This appeal arises from the July 5, 1983 Order of the Court of Erie County, Orphans’ Court Division, which denied appellant’s exceptions and granted a petition to terminate appellant’s parental rights in his natural child, J.D.P.

The petition for involuntary termination of appellant’s parental rights was filed on Januáry 12, 1982, and following a hearing thereon, the lower court entered an order dated March 2, 1982, terminating those rights. Exceptions were timely filed, argued and denied. Appellant appealed to this Court. On June 17, 1983, we vacated the order of the lower court due to the fact that during the pendency of this case, the United States Supreme Court in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), elevated the burden of proof required in involuntary termination of parental rights cases from a preponderance of the evidence standard to a clear and convincing evidence standard. Matter of Adoption of J.D.P., 315 Pa.Super. 192, 461 A.2d 862 (1983). We remanded the case to the lower court for application of the constitutionally mandated clear and convincing evidence standard and also directed the lower court to proceed in accordance with our decision in In re Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983).

In that case, we held that the Santosky decision required those cases pending on appeal in which a party’s parental rights were terminated based on preponderance of the evidence standard be remanded to the lower court for further proceedings at which the clear and convincing evidence standard shall be applied. We further held that the lower court, on remand, and after hearing arguments of counsel, would be permitted to exercise its discretion in determining whether new evidentiary hearings would be required. We explained:

We do not,- ..., feel that the lower court must, in all cases, hold new evidentiary hearings. Rather, we adopt the procedure advocated by The Appeals Court of Massachusetts in Custody of a Minor (No. 2), 13 Mass.App. 1088, 436 N.E.2d 172, app. den., — Mass. —, 438 N.E.2d 75 (1982) and Custody of A Minor (No. 3), 14 Mass.App. 1013, 441 N.E.2d 768 (1982). Thus, we hold that cases shall be remanded with a direction to the trial court thát it determine, after hearing arguments of counsel, whether new evidentiary hearings are required. If the court is convinced that counsel would have tried the case differently had it known that a clear and convincing evidence standard would be applied, or if the court concludes that the evidence should be expanded and/or brought up to date, then it should schedule new evidentiary hearings. If, on the other hand, the court is convinced that new evidentiary hearings are not required, the court need only reconsider its prior findings in light of the clear and convincing standard and modify those findings as necessary.

Id., 313 Pa.Superior Ct. at 323, 459 A.2d at 1251.

On June 23, 1983, the lower court, after remand, re-entered its original order of March 2, 1982 without the benefit of further evidentiary hearings or oral arguments by counsel. The court stated in its opinion that its decision to terminate appellant’s parental rights was, in fact, based on clear and convincing evidence. Exceptions were timely filed and denied without a hearing. This appeal followed.

Appellant raises three issues in this appeal: (1) whether the lower court abused its discretion by reinstating its original order without further evidentiary hearings; (2) whether the lower court ignored the directive of In re Adoption of M.E.T., supra, requiring the lower court to hear arguments of counsel before determining if further evidentiary hearings are required; (3) whether termination of appellant’s parental rights was supported by at least clear and convincing evidence.

Although we could find that the lower court’s failure to permit arguments by counsel on the question of whether new evidentiary hearings are required to be violative of the standard enunciated in In re Adoption ofM.E.T., supra, we instead find that the disposition of the instant appeal is controlled by the Pennsylvania Supreme Court decision in In re T.R., 502 Pa. 165, 465 A.2d 642 (1983). We therefore vacate the order of the lower court and remand with directions that it hold a re-hearing and thereafter determine the matter in accordance with the clear and convincing evidence standard.

In In re T.R., supra, our Supreme Court held, relying upon Santosky, that in all proceedings to involuntarily terminate parental rights which were not yet final, the petitioner must prove the statutory criteria for such termination by at least clear and convincing evidence. The court further stated that “[t]o the extent that the holding of the Superior Court in In re Adoption of M.E.T., 313 Pa.Superior Ct. 316, 459 A.2d 1247 (1983) limits the parties’ right to rehearing it is disapproved.” In re T.R., supra, 502 Pa. at 169, 465 A.2d at 644 (footnote omitted). We understand this statement to mean that, in cases of this type that have been remanded to the lower court for determination under the clear and convincing evidence standard, each party has a right to new evidentiary hearings. The lower court must hold new evidentiary hearings if either party so requests and permit counsel for either side to expand upon the evidence, update it or re-try the entire case.

This procedure safeguards the parents’ right to ensure that findings of parental unfitness under the statutory guidelines are made on the basis of at least clear and convincing evidence.

In the instant case, appellant, in his exceptions, took issue with the fact that he was not afforded new evidentiary hearings following the re-entry on June 23, 1983, of the lower court’s former order that terminated his parental rights. By refusing to conduct new evidentiary hearings, the lower court erred in denying appellant’s exceptions.

In view of the Supreme Court’s holding in In re T.R., supra, we are therefore constrained to vacate the lower court order which denied appellant’s exceptions and which terminated his parental rights and remand for proceedings not inconsistent with this Opinion.

Jurisdiction relinquished.


author: PER CURIAM:

text:
    471 A.2d 897
    COMMONWEALTH of Pennsylvania v. Malichi Ronald VERNON, Appellant.
    Superior Court of Pennsylvania.
    Argued Dee. 1, 1983..
    Filed Feb. 10, 1984.

      William R. Nalitz, Waynesburg, for appellant.

      Charles J. Morris, District Attorney, Waynesburg, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and HESTER, J.
   PER CURIAM:

Appellant, Malichi Ronald Vernon, was found guilty, following a jury trial, of burglary and sentenced to a term of imprisonment of not less than ten years nor more than twenty years by the Court of Common Pleas of Greene County, Pennsylvania. Appellant’s motion for a new trial was denied and this appeal was taken from the judgment of sentence.

The facts, viewed most favorably to the Commonwealth’s position, are summarized accordingly:

On October 15, 1981, appellant met Larry Huff at the Wagon Wheel restaurant in Waynesburg, Pennsylvania. Appellant inquired whether Huff knew of any means to raise cash. Huff informed appellant that Huff’s uncle, Robert Wise, kept firearms in his house in Blacksville, Pennsylvania, and that the sale of these firearms would produce, cash. Thereafter, appellant and Huff drove in appellant’s van to Wise’s house, found no one present, entered without authority and removed therefrom a 30.30 rifle, 30.06 rifle, .22 rifle, .22 bolt shotgun and boxes of shells.

The men then arranged a rendezvous with appellant’s wife at Old Dump Road where the men transferred the stolen property from the van to appellant’s 1968 Chevrolet Impala. Appellant’s wife departed for home in the van while appellant and Huff drove the Impala to the house of appellant’s father.

At appellant’s suggestion, Huff fabricated his financial condition in an effort to win the sympathy of appellant’s father. Accordingly, Huff told appellant’s father that his wife had left him, thereby forcing him to scrape for money. Appellant’s father agreed to purchase the 30.30 rifle for $50.00.

Subsequently, appellant and Huff drove to the house of appellant’s brother and immediately thereafter to “some kid’s house.” Finding no one present at either residence, the men pursued another sale at Albert Laterio’s house in Dunbar. Laterio purchased the 30.06 rifle for $50.00 and a 12-gauge shotgun.

Following this sale to Laterio, the men separated and appellant retained possession of the .22 bolt shotgun, .22 rifle and the 12-gauge shotgun. Appellant individually sold the .22 rifle to David Hopkins for $40.00. Appellant was apprehended a few days later and charged with burglary and receiving stolen property.

Appellant argues that the lower court erred in failing to direct a law enforcement officer at trial to disclose the identity of a confidential informant. According to appellant, he was the victim of a conspiracy between the aforementioned Larry Huff and David Hopkins. He intended to prove that David Hopkins either committed the crime for which appellant was charged or was fully apprised of the details of the crime, including the identity of the actual felon. In that regard, appellant contends that the identity of the confidential informant was indispensable to his defense. Furthermore, appellant directs us to the fact that the court’s refusal to order disclosure at trial directly contravened its earlier pre-trial order which directed the Commonwealth to “provide a list of informants connected with the above styled actions.”

It would be helpful to capsulize that segment of the trial proceedings which is the nucleus of this controversy. Detective David Clark of the Waynesburg Police Department testified on direct examination that following his receipt of information from an informant he contacted David Hopkins. Hopkins informed Detective Clark that he purchased a .22 lever action rifle from appellant. On cross examination of Detective Clark, appellant’s counsel sought the identity of the informant who had revealed that Hopkins purchased the firearm from appellant. The Commonwealth’s objection to this inquiry was sustained on two grounds: 1) David Hopkins was available to appellant on cross examination thereby allowing appellant to determine Hopkins’ role; 2) the fact that Detective Clark’s informant was confidential was raised for the first time by appellant on cross examination of Detective Clark.

Neither of the grounds upon which the Commonwealth’s objection was sustained gain our approval. Whether identity of the confidential informant should be disclosed had been settled by the pre-trial order; the trial court was without authority to consider that same issue at trial. Appellant’s defense was that Hopkins, Huff and perhaps others schemed to falsely implicate him in the crime. At the pre-trial hearing on appellant’s discovery motion, the court apparently agreed that this defense warranted disclosure of all confidential informants. Appellant’s opportunity to cross-examine Hopkins and his introduction of the confidential informant issue on cross-examination of Detective Clark cannot provide acceptable alternative to the pre-trial order.

The Commonwealth acknowledges the order dated November 18, 1981, which directed it to disclose the identity of all informants; however, the Commonwealth argues that the order was modified by agreement between parties. The agreement allegedly provided for the Commonwealth’s disclosure of the identities of only those informants whom appellant suspected. The Commonwealth contends that due to the fact that the informants were not those whom appellant suspected, no names were revealed. We are directed to pages 26 and 27 of the transcript for evidence of this agreement and appellant’s acknowledgement of the terms thereof.

We have perused those pages of the transcript. Although the prosecutor discusses an agreement, the terms therein are not similar to those outlined above. Furthermore, there is no indication from the transcript that appellant acknowledged the terms of the agreement and the fulfillment thereof. Therefore, we cannot agree that the order of November 18, 1981 was modified; it remained in force to the day of trial.

The Commonwealth also argues that appellant waived this issue for appeal. We disagree. According to the Commonwealth, appellant’s alleged acknowledgment of the agreement to modify the pre-trial order is evidence of his failure to object. As noted above, there is no evidence that appellant’s counsel acknowledged an agreement. Furthermore, the following portion of the transcript reveals, through the court’s sustaining of the Commonwealth’s objection to counsel’s inquiry on cross examination into the confidential informant’s identity, that he raised the issue below in compliance with Pa.R.A.P. 302(a):

BY THE COURT: That testimony, as the Court understood it, all related to the witness, David Hopkins, who will be called and whom you will have a chance to cross examine and further, it is only a matter divulged by cross examination that raises the question that part of the information being supplied by a confidential source. The objection is sustained. An exception noted to the defendant.
(N.T. December 1, 1981, p. 29).

The Commonwealth further notes waiver in appellant’s failure to seek recourse through Pa.R.Crim.P. 305 E for the Commonwealth’s refusal to disclose the identity of confidential informants. Rule 305 E provides for an order permitting discovery, inspection or a continuance, an order prohibiting the use of evidence not disclosed or any order appropriate and equitable where one party fails to comply with a discovery order. The Commonwealth is correct insofar as appellant did not specifically request a remedy under Rule 305 E; however, his decision not to do so does not amount to a waiver. We are cognizant of no rule which requires a party to pursue every course available in trial proceedings in order to preserve an issue on appeal. As long as an appellant raises a timely objection at trial on the issue and attempts redress in post-trial motions, the issue is proper for appeal. See Pa.R.Crim.P. 1123(c)(3); Pa.R.A.P. 302(a). Here the issue of the confidential informant’s identity was raised both at trial and again in post-trial motions. Rule 305 E was an option available to appellant, but not a mandatory course for appeal.

Furthermore, appellant filed a discovery motion, obtained a pre-trial order for disclosure of the informant’s identity and searched at trial for that identity. Rule 305 E does not indicate that a party must specifically request the relief which it provides. We think it sufficient where the noncompliance of a discovery order is brought to the court’s attention. At that point, the court may institute one or more of the remedies provided. Appellant’s inquiry on cross-examination into the identity of the confidential informant and his objection to the court’s prohibition of that inquiry, informed the court of the Commonwealth’s noncomplianee with the pre-trial order. Nothing further was necessary to acquire Rule 305 E relief, except the court’s order providing it.

Judgment of sentence reversed and new trial granted.

WIEAND, J., concurs in the result.

      . Larry Huff was appellant’s natural son. Huff was born out of wedlock, and appellant and Huff's mother never married. Huff was raised by his mother and eventually adopted by his mother's husband.

      . The entire pre-trial order dated November 18, 1981 is as follows:
      ORDER
      Upon reading and filing the below mentioned Motions;
      Motion for Discovery
      Motion for Production .of Res Gestae Witnesses
      Motion to Sequester Witnesses
      IT IS HEREBY ORDERED THAT:
      (1) The witnesses for the prosecution be sequestered during trial;
      (2) The prosecution comply with the Motion for Discovery;

        (3) The prosecution provide a list of informants connected with the above styled criminal actions, with a brief summary of the information provided by these informants to the officers in charge of these cases.


author: WICKERSHAM, Judge:

text:
    471 A.2d 901
    COMMONWEALTH of Pennsylvania, Appellant, v. Harileaos G. MARGETAS.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1983.
    Filed Feb. 17, 1984.
    Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellant.
    William Costopolous, Lemoyne, for appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   WICKERSHAM, Judge:

This is an appeal by the Commonwealth from the order of the Court of Common Pleas, Criminal Division, of York County directing that the charges of arson and related offenses be dismissed with prejudice because of the violation of Rule 1100. For the reasons set forth below, we reverse.

In the instant case, the written complaint was filed against the appellee on November 14, 1980. The run date under Rule 1100 was May 13, 1981. There were no orders extending the commencement of trial.

A plea bargain agreement was entered into on April 15, 1981 and was presented to the court on May 1, 1981 before the Honorable Joseph E. Erb who indicated that he would require a pre-sentence investigation, but accepted a nolo contendere plea with the appellee having the right to withdraw his plea in the event the plea bargain was not accepted. On June 26, 1981, Judge Erb advised the appellee that he would not accept the plea bargain because of the provision of “no jail” time.

On June 29, 1981, the Commonwealth filed an application for extension of time for commencement of trial. The appellee filed a motion to dismiss pursuant to Rule 1100. The lower court held that the acceptance of the plea of nolo contendere, subject to the terms of the plea bargain, did not signify “commencement of trial” for Rule 1100 purposes. Lower ct. op. at 3. Therefore, on July 9, 1981, the lower court dismissed with prejudice the charges against the appellee on the ground that Rule 1100 had been violated. The Commonwealth timely appealed.

The Commonwealth presents the sole question to be considered on appeal as follows:

Whether the lower court erred in dismissing charges with prejudice against Appellee on the basis of a violation of “Pa.R.Crim.P. 1100”?

Brief for Appellant at iv.

To resolve this issue, we must determine whether the acceptance of the plea of nolo contendere, subject to the terms of a plea bargain, signified the “commencement of trial” for Rule 1100 purposes.

The lower court opinion relies on Commonwealth v. Cox, 276 Pa.Super. 29, 419 A.2d 78 (1980). In that case, a panel of this court held that acceptance of the defendant’s guilty plea did not signify “commencement of trial.” However, Cox was expressly overruled by an en banc panel of this court in Commonwealth v. Lewis, 295 Pa.Super. 61, 440 A.2d 1223 (1982). Lewis held that a tender of a plea of guilty signifies “commencement of trial.”

In short, the tendering of a guilty plea triggers immediately the guilt-determining process, and trial thereupon commences for purposes of determining compliance with Rule 1100. It matters not whether the trial court accepts the guilty plea immediately or takes it under advisement in order to study further the terms of the plea bargain and prepare for sentencing.

Id., 295 Pa.Superior Ct. at 67, 440 A.2d at 1226.

Lewis is consistent with the amendment to Rule 1100 which specifically states when trial begins for purposes of the rule:

(b) For the purpose of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.

Pa.R.Crim.P. No. 1100(b) (emphasis added).

Although Cox was the law at the time the trial court judge dismissed the charges, we believe we should apply the amended rule and recent case law. The Lewis case noted that Cox was inconsistent with the intent of Rule 1100. We will not apply the reasoning of a case that incorrectly interpreted Rule 1100.

Therefore, we hold that Margetas’ trial commenced when he tendered his plea of nolo contendere.

The Comment to Rule 1100 was amended to say that "... rejection of ... a guilty plea should be considered the granting of a new trial for purposes of this rule.” Pursuant to this amendment, when Judge Érb rejected Margetas’ plea, the Commonwealth should have been given 120 days to commence a new trial. See Pa.R.Crim.P. No. 1100(e)(1).

The order of the lower court is reversed and the case remanded for a new trial. Jurisdiction is relinquished.


author: BROSKY, Judge:

text:
    471 A.2d 902
    COMMONWEALTH of Pennsylvania, Appellant, v. David M. FAISON.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1983.
    Filed Feb. 17, 1984.
    Petition for Allowance of Appeal Denied June 22, 1984.

      Garold Edward Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Jeffrey L. Penneys, Assistant Public Defender, Philadelphia, for appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   BROSKY, Judge:

The sole issue before us in this appeal is whether the lower court erred in dismissing charges that had been filed against the appellee. The court dismissed the assault and recklessly endangering another person charges on the grounds that appellee could not be timely tried, as required by Pa.R.Crim.P. 1100. The court therefore denied a petition for extension of time which had been filed by the Commonwealth, dismissed the charges and discharged appellee. We reverse and remand for trial.

A complaint was filed on February 28, 1980 charging appellee with the above listed crimes. The charges stem from an alleged attack on his brother by appellee.

On February 28, 1980 the police received' information from appellee’s mother that he had been in the vicinity of Germantown and Chelten Avenue, Philadelphia. She also told the police that her son no longer resided with her and was not welcome in her home.

On February 28, 1980, April 20, 1980, July 1, 1980, and August 17, 1980, the police went to the Germantown-Chelten area because they had received information that appellee had been sighted there. The officer who visited the area testified at the Rule 1100 hearing that he travelled on neighboring streets and looked in various bars and open business establishments, but was unable to locate anyone fitting appellee’s description. The officer also circulated 60 or 70 photos of appellee to the police squads who worked in the area where appellee had been spotted.

Appellee was arrested on January 4, 1981. Petitions for extension of time were filed on June 29, 1981, December 31, 1981 and February 28, 1982. At a hearing on March 2, 1982 the lower court denied the last petition. The Commonwealth contends that appellee was unavailable from February 28, 1980 to January 4, 1981.

It was agreed by the Commonwealth and appellee’s counsel at the March 2 hearing that appellee was unavailable for trial from January 13, 1981 to December 30, 1981 during which period appellee was incompetent. The issue below and before us is whether the Commonwealth used due diligence in seeking to arrest appellee.

The Commonwealth has the burden of proving by a preponderance of the evidence that the police exercised due diligence in trying to find appellee. Commonwealth v. Dorsey, 294 Pa.Super. 584, 440 A.2d 619 (1982).

In Commonwealth v. Hinton, 269 Pa.Super. 43, 50, 409 A.2d 54, 57-58 (1979), we explained:

It seems clear that the test is not a venture into hindsight reasoning as to whether, if certain individuals had been contacted, on other things done, an arrest would probably have been made. The matter of availability and due diligence must be judged by what was done by the authorities rather than what was not done. The standard of due diligence demands only reasonable efforts, (emphasis in original.)

At the March 2, 1982 hearing the lower court asked the police what efforts, other than those outlined above, had been made to locate appellee. When the District Attorney explained that the attempts made were the only ones possible with the information available to the police, the court commented.

There are so many other ways that the police department or your office can find a person if they wanted to do it. They will find a person, believe me, if they want to. They have the resources of the FBI and vital statistics. They can investigate the utilities such as the gas and telephone. They can investigate social security and DPA.

The District Attorney opined that the resources of the FBI would not have been available in this case and the court replied:

Most of the time they cooperate with the District Attorney’s office. There has to be some showing that these things were at least attempted. And not just four cursory visits to the area of Green and Chelten, or Chelten and Germantown Avenues.

We believe that the lower court incorrectly based the decision on its view of what else the police could have done, rather than on its belief that what was done was inadequate. See Commonwealth v. Dorsey, supra (court would not say that failure to set up a stakeout at appellee’s house or to check welfare rolls demonstrated lack of diligence.) See also Commonwealth v. Jones, 256 Pa.Super. 366, 389 A.2d 1167, 1170 (1978) in which we said, “Although the police could have pursued other avenues to locate appellant, that is not the controlling factor. It is simply not required that the Commonwealth exhaust every conceivable method of locating a defendant. Rather, reasonable steps must be taken.” In Jones we found that the Commonwealth had proved its due diligence when an undercover narcotics officer conducted surveillance on five or six occasions of known drug traffic areas; six months after issuance of the complaint identified the defendant’s photograph and made contact with local police who arrested the defendant seven months after the complaint was filed. See also Commonwealth v. McDermott, 280 Pa.Super. 535, 421 A.2d 851 (1980) (wife did not know defendant’s whereabouts; officer checked known “hangouts” and with employer and distributed photos).

The testimony at the instant Rule 1100 hearing indicates that the police made reasonable efforts given the information known by them. The officer explained that in August, 1980 he ascertained that appellee did not have a permanent address in the Germantown area that he could find. The officer believed that leaving the photos with the 14th District Squads was sufficient, given his lack of other information.

The officer knew appellee’s mother’s address but he also knew that appellee’s mother had told her son not to return to her home. His mother had cooperated with the police and the officer could reasonably have believed that nothing more could be gained from repeated visits to her home. We will not conclude that the police failed to exercise due diligence simply because there were other options available to them.

Orders reversed and case remanded for trial.

      . 18 Pa.C.S. §§ 2701, 2702.

      . 18 Pa.C.S. § 2705.


author: MONTEMURO, Judge: BECK, Judge,

text:
    471 A.2d 1223
    COMMONWEALTH of Pennsylvania, Appellant, v. Kevin Marshall STAINBROOK.
    Superior Court of Pennsylvania.
    Argued March 10, 1983.
    Filed Jan. 13, 1984.
    Reargument Denied March 23, 1984.

      William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellant.
    Bruce E. Cooper, Harrisburg, for appellee.
    Before WICKERSHAM, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

The Commonwealth appeals from an Order suppressing evidence entered by the Honorable G. Thomas Gates, Court of Common Pleas, Lebanon County.

On October 23, 1981, at approximately 11:40 P.M., Patrolman Louis Laguna of the North Londonderry Township Police Department was on routine patrol. He was accompanied by Police Chief Eldon Beachley. As part of this routine patrol, Officer Laguna drove into the parking lot of the Palmyra Bowling Alley to make sure that there was no loitering in the lot. At one end of the parking lot was parked a truck in which sat the appellant and another person. As Officer Laguna approached the truck he detected the odor of burning marijuana and, at the same time, observed the appellant bend over abruptly as if to stuff something underneath his seat. Upon Officer Laguna’s request, the two men presented identification. At this point, Officer Laguna noticed that appellant’s jacket, located on the floor of the truck, appeared to be concealing something. He asked the appellant to lift up the jacket. The appellant did this but quickly dropped it. Officer Laguna asked him again to lift the jacket and the appellant complied, this time exposing a plastic bag containing marijuana. Officer Laguna then read the appellant his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and placed him under arrest. Upon arrival at the police station, the appellant’s jacket was searched and in it were found six small plastic bags, a pipe and a scale. Appellant was charged with one count of possession of a controlled substance and one count of possession of a controlled substance with intent to deliver.

The appellant filed a motion to suppress the marijuana and drug paraphernalia on the ground that such evidence was seized pursuant to an illegal search and arrest. Following a hearing conducted cm December 29, 1981, appellant’s motion was granted.

On appeal, the Commonwealth contends (1) under the circumstances of this case, Officer Laguna was justified in conducting a warrantless search of the appellant’s automobile; (2) the appellant voluntarily consented to the search of his automobile; and (3) the search of the appellant’s jacket was valid as incident to a lawful arrest.

The deciding factor in determining whether a warrantless search of a motor vehicle is constitutionally permissible is the existence of reasonable or probable cause. Commonwealth v. Smith, 443 Pa. 151, 277 A.2d 807 (1971); Commonwealth v. Dobkin, 223 Pa.Super. 432, 302 A.2d 457 (1973). Moreover, in considering the reasonableness of a given search or seizure of a vehicle, the need for a warrant is often excused by exigent circumstances. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). Such a search is justified because (1) a vehicle is highly mobile and the likelihood is therefore great that it and its contents may never be found if police are prohibited from immobilizing it until a warrant is secured; and (2) one’s expectation of privacy with respect to a motor vehicle is significantly less than that relating to one’s home or office. Id. Furthermore, where an officer who has not intruded into a constitutionally protected area sees contraband in plain view, such evidence may be seized without a warrant. Commonwealth v. Pullano, 295 Pa.Super. 68, 440 A.2d 1226 (1982).

We agree with the Commonwealth that Officer Laguna was justified in conducting a search of the appellant’s truck. In addition to observing the furtive behavior of the appellant who appeared to be stuffing something under his seat, Officer Laguna detected the order of burning marijuana. At the suppression hearing, he testified that it was part of his training at the police academy to be able to identify marijuana by its sight and smell. The Supreme Court of the United States has held that an odor may be sufficient to establish probable cause for the issuance of a search warrant. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), as cited in Commonwealth v. Stoner, 236 Pa.Super. 161, 344 A.2d 633 (1975). In Commonwealth v. Stoner, Id, this court stated that the rationale used to establish probable cause in those Supreme Court cases applies equally well when determining the validity of a search of a movable vehicle. In Stoner, we analogized a “plain smell” concept with that of plain view and held that where an officer is justified in being where he is, his detection of the odor of marijuana is sufficient to establish probable cause. See also Commonwealth v. Pullano, supra; Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982). In the instant case, it is undisputed that the police officers’ presence in the parking lot was justified as part of their routine patrol. They had been requested by the owner of the lot to watch for loitering. Moreover, the officers were on notice of repeated incidents of loitering in the lot, and, while they were driving past the lot, they observed the appellant and another man seated in a truck. Thus, they were justified in approaching the vehicle. We find, as we did in Stoner, supra, that it would have been a dereliction of duty for Officer Laguna “to ignore the obvious aroma of an illegal drug which he was trained to identify.” Id., 236 Pa.Superi- or Ct. at 166, 344 A.2d 635. We hold, therefore, that there was probable cause to search the appellant’s truck and to seize the marijuana found therein.

We also agree with the Commonwealth’s next argument regarding the search of the appellant’s jacket. The law is clear that a warrantless search is proper if incident to a lawful arrest. Commonwealth v. Plusquellic, 303 Pa.Super. 1, 449 A.2d 47 (1982); Commonwealth v. Rivera, 273 Pa.Super. 105, 416 A.2d 1111 (1979). A warrantless arrest is lawful if the facts and circumstances within the arresting officer’s knowledge are such as would warrant a person of reasonable caution to believe an offense has been or is being committed and the person to be arrested is probably the perpetrator. Commonwealth v. Plusquellic, supra; Commonwealth v. Bartlett, 486 Pa. 396, 406 A.2d 340 (1979). Under the circumstances of this case which include the surreptitious behavior of the appellant, the odor of burning marijuana and the discovery of the marijuana underneath the appellant’s jacket, we believe that there was probable cause to arrest the appellant. The subsequent search of the appellant’s jacket and the seizure of the evidence contained therein, were, therefore, valid as incident to this lawful arrest.

In light of the foregoing considerations, we believe that is unnecessary to determine whether the appellant voluntarily consented to the search of his truck.

The Order of the court below is reversed and this case is remanded for trial. This court does not retain jurisdiction.

BECK, J., files dissenting opinion.

BECK, Judge,

dissenting:

I dissent because in my determination the warrantless search of appellee’s vehicle was unconstitutional. The majority justifies the search of the automobile on the basis of the “plain smell” of marijuana, in an analogy with the doctrine of “plain view.” The majority reasons that the police were justified in being where they were, and that the odor of marijuana was sufficient to establish probable cause for a warrantless search.

There is no argument that the police were legitimately pursuing their duties in patrolling the parking lot for loiterers. There is also no argument that appellee was not a loiterer in the lot. He was seated in a legally parked vehicle. The police approached the vehicle, which was parked at the far side of the parking lot from them, before any odor of an illegal substance had been detected. At trial, this initial approach, and its justification, were described thus:

Q. Now, did you speak with the persons in that vehicle?
A. I approached the vehicle, and, as I approached the vehicle, I saw the defendant and the other person seated in the passenger seat bent over what appeared to be stuffing something down at, in—
MR. COOPER: Objection
A. —the lower part of the seat.
THE COURT: Well, it is a conclusion, yes. N.T. 10

Appellant now argues that this “furtive behavior” and the “plain smell” of marijuana justified the search, but no where in the record, and certainly not in the portion quoted above has appellant established a legitimate basis for the original approach.

I submit that “furtive behavior” to justify a police stop and search must be something more than bending forward while seated in a parked car. Appellee’s movement does not constitute “such unusual and suspicious conduct ... that the policeman may reasonably conclude that criminal activity may be afoot____”. Commonwealth v. Barnett, 484 Pa. 211, 215, 398 A.2d 1019, 1021 (1979), quoting Commonwealth v. Berrios, 437 Pa. 338, 340, 263 A.2d 342-3 (1970).

I find an instructive distinction between the situation in this case and two recent cases decided by our Court concerned with motions to suppress evidence seized from cars in parking lots. In Commonwealth v. Evans, 314 Pa.Super. 16, 460 A.2d 350 (1983), we reiterated the rule that an officer who lacks probable cause for arrest may nevertheless detain a person for questioning if the officer has a reasonable suspicion that a crime has occurred, or was occurring. In that case, also involving a public parking place, we upheld the police action and denied a motion to suppress seized evidence. In Evans, the police observed the car come to a sudden stop, in the driving lane of the parking lot, saw the driver and passenger depart suddenly in opposite directions, and observed that one of them threw a screwdriver under the car while departing. That officer was justified in approaching the defendant and asking him what he intended to do with the car.

Similarly, in Commonwealth v. Benedetto, 316 Pa.Super. 134,- 462 A.2d 830 (1983) the police officer approached the car because he observed a man whom he had known for sixteen years pull into a parking lot in a heavily damaged car. Concerned about the driver’s safety, the officer approached to ask him if assistance was needed. We found that reasonable behavior under the circumstances.

In the instant case, I do not believe the police had a valid reason to approach the car in the first instance. Nothing unusual giving rise to a suspicion of probable cause, or giving rise to a conclusion the police services were necessary had occurred. When they did approach the car, the police’s claim of furtive behavior on the part of the occupants giving rise to probable cause does not stand the test. The police placed themselves in an investigative posture that can not lawfully be supported. They therefore can not justify their action on the basis of the doctrine of plain smell. They cannot piggy back an unlawful action onto a lawful one in order to make the search lawful.

The “plain view” doctrine was elaborated in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) where the Supreme Court wrote:

What the “plain view” cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. (At 466, 91 S.Ct. at 2038, 29 L.Ed.2d at 583) (emphasis added).

The first and most fundamental prerequisite to reliance upon “plain view” is that the initial intrusion which brings the police within the plain view of the article is itself lawful. “The ‘plain view doctrine’ is applicable only where the officer has a right to be in the position to have that view.” Commonwealth v. Murray, 460 Pa. 53, 59, 331 A.2d 414, 417 (1975). So too with “plain smell.”

In Commonwealth v. Stoner, 236 Pa.Super. 161, 166, 344 A.2d 633, 635 (1975) this Court quoted United States v. Curran, 498 F.2d 30, 33 (9th Cir.1974):

“The government touches upon the theory sometimes advanced that the courts should acknowledge a ‘plain smell’ concept analogous to that of plain sight____ However, before the officer could rely upon his smelling marijuana as probable cause, he would have to justify his presence at the place ... where he detected the odor, just as he would have to justify his presence at the place from which he saw the contraband in order to rely on the doctrine of plain view.” (236 Pa.Superior Ct. 166, 344 A.2d at 635).

Since I am unconvinced that the police were constitutionally questioning the occupants of the legally parked vehicle, I am unable to apply the “plain view/plain smell” analogy to these facts.

Certainly police officers may rely upon their sense of smell in deciding whether burning marijuana is present. But odors alone do not authorize a search without a warrant. Pennsylvania cases which have incorporated the “plain smell” doctrine make this point clear. In Stoner, supra, the police stopped a moving vehicle for a traffic violation and observed a .38 calibre weapon fall out of the glove compartment when the occupant of the car was producing the registration card. The odor of marijuana was detected after the suspects had been placed under arrest, and was the justification for a subsequent more extensive search of the car. The other cases cited by the majority to support the car search emphasize the same application of the doctrine. In Commonwealth v. Pullano, 295 Pa.Super. 68, 440 A.2d 1226, 1227 (1982) the police were investigating a raucous party in an apartment building, and smelled the odor of burning marijuana when they knocked on the door. When the door to the apartment was opened, drug paraphernialia and marijuana cigarettes were found in plain view. In Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982) the police were searching for two truant juveniles, both known to them. An officer recognized one of the juveniles, approached him, and simultaneously smelled burning marijuana and observed a pipe stem in plain view in one of the truant’s pockets.

In addition to these cases cited by the majority, Commonwealth v. Duett, 305 Pa.Super. 431, 451 A.2d 724 (1982) illustrates the same concept. Police stopped an automobile for making an illegal turn. When the driver rolled down the window, the officer detected the odor of burning marijuana and saw a partially full bottle of wine in plain view on the floor of the car. The driver, under the age of twenty-one, was cited for under-age drinking. The police also saw a bag on the front seat of the car which contained marijuana. We held that the police had legitimately stopped the automobile and were justified in searching the vehicle for further contraband.

In the instant case, there was no traffic violation, no disturbance of the peace, nor any observed behavior which was inconsistent with an innocent presence in the parking lot. I agree with the lower court that the police lacked probable cause for the search of the vehicle, and I would therefore affirm the order granting the motion to suppress the seized evidence.

      . Since the Order suppressing the evidence terminates or substantially handicaps the prosecution, such Order is immediately appealable by the Commonwealth. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963); Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983).

      . The record discloses that Officer Laguna and Chief Beachley routinely patrolled this parking lot. Officer Laguna testified at the suppression hearing that, “he asked us, as the police department, to try to stop some of the loitering, due to all the broken beer bottles and things found every morning on the lot." (N.T. December 29, 1981, at 12). Officer Laguna also testified that loitering signs were posted on the doors of the bowling alley. Id.

      . 35 P.S. § 780-113(16).

      . Id. § 780-113(30).


author: WIEAND, Judge:

text:
    471 A.2d 1228
    COMMONWEALTH of Pennsylvania v. Robert TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Argued June 2, 1983.
    Filed Jan. 20, 1984.

      Stuart Wilder, Assistant Public Defender, Doylestown, for appellant.
    William F. Merz, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   WIEAND, Judge:

At or about 5:15 p.m. on Sunday, August 17, 1980, Robert Taylor entered his automobile in Philadelphia and drove to Ocean City, New Jersey to visit a friend. His thirteen year old daughter, Joyce, and her twelve year old friend, Carlin Pedano, went with him. Unable to find Taylor’s friend, the trio remained on the boardwalk until approximately 10:15 p.m., when they started home. Taylor drank several cans of beer in the car, became tired and lost his way. He crossed the Burlington-Bristol Bridge into Bucks County. He stopped once for beer. He was tired and felt he would fall asleep. Twice he narrowly avoided accidents. Therefore, he rented a motel room where he intended to spend the night. Within the confines of the motel room, according to the Commonwealth’s evidence, he made sexual advances to the young girls. He allegedly choked them, threw them upon the bed, grabbed at their private parts and wrapped his legs around one and then the other. In pushing Carlin Pedano to the bed, he allegedly caused her to fall and strike her head. She sustained a swollen lip. He exhibited his genitalia and removed from his pocket a pack of condoms, telling his daughter that he could prevent her pregnancy by using one. Taylor ultimately fell asleep on the bed. The following morning, he took the girls home, threatening to kill them if they told anyone about the events which had occurred in the motel room on the night before.

A jury acquitted Taylor of simple and indecent assault, indecent exposure, open lewdness and false imprisonment. However, Taylor was found guilty of endangering the welfare of children in violation of Section 4304 of the Crimes Code, 18 Pa.C.S. § 4304. Post-trial motions were denied, and a sentence of probation was imposed. Taylor appealed.

He argues that the evidence was insufficient to sustain the conviction. In his brief, however, he states the issue to be whether the verdict was against the weight of the evidence. These are discrete inquiries. The proper procedure to challenge the sufficiency of the evidence is by a post-verdict motion in arrest of judgment. Commonwealth v. Holmes, 315 Pa.Super. 256, 260, 461 A.2d 1268, 1270 (1983). In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983); Commonwealth v. Shaver, 501 Pa. 167, 169, 460 A.2d 742, 743 (1983); Commonwealth v. Sample, 321 Pa.Super. 457, 461-462, 468 A.2d 799, 801 (1983); Commonwealth v. Curry, 318 Pa.Super. 490, 494, 465 A.2d 660, 662 (1983). The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence. Commonwealth v. Smith, 502 Pa. 600, 604, 467 A.2d 1120, 1122 (1983); Commonwealth v. Nelson, 320 Pa.Super. 488, 491, 467 A.2d 638, 640 (1983); Commonwealth v. Ruffin, 317 Pa.Super. 126, 132, 463 A.2d 1117, 1120 (1983); Commonwealth v. Owens, 315 Pa.Super. 400, 404, 462 A.2d 255, 257 (1983); Commonwealth v. Nunez, 312 Pa.Super. 584, 586, 459 A.2d 376, 376-377 (1983).

A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion. Commonwealth v. Zapata, 447 Pa. 322, 327, 290 A.2d 114, 117 (1972);. Commonwealth v. Ruffin, supra, 3Í7 Pa.Superior Ct. at 133, 463 A.2d at 1120; Commonwealth v. Brown, 314 Pa.Super. 311, 322, 460 A.2d 1155, 1161 (1983); Commonwealth v. Starks, 298 Pa.Super. 213, 216, 444 A.2d 736, 738 (1982). The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail. Commonwealth v. Sample, supra, 321 Pa.Superior Ct. at 465, 468 A.2d at 802; Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). See: Commonwealth v. Jensch, 322 Pa.Super. 304, 315, 469 A.2d 632, 638 (1983).

Although appellant confuses the separate inquiries, the record is clear that he is entitled to relief on neither. The crime of endangering children derives from § 230.4 of the Model Penal Code (1962) and is defined at 18 Pa.C.S. § 4304 as follows:

“A parent, guardian, or othfer person supervising the-welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.”

“This section consolidates and simplifies the various provisions concerning crimes endangering the welfare of children. The offense involves the endangering of the physical or moral welfare of a child by an act or omission in violation of a legal duty____” Toll, Pennsylvania Crimes Annotated § 4304. Its purpose is protective. “The objective is to confine criminal punishment for endangering the welfare of children to consequential acts violative of some settled obligation springing from the supervisory relationship of actor to child.” Model Penal Code § 230.4 comment (Official Draft and Revised Comments 1980). Statutory culpability

“reaches one who knowingly endangers the welfare of a child by violating a duty of care, protection, or support. This prohibition, punished by misdemeanor sanctions, includes a wide range of adult behavior that may have an adverse effect on the welfare of children, but is circumscribed by the requirements that a duty of care, protection, or support must exist in law, that the actor must knowingly endanger the welfare of the child by violation of that duty, and that the actor must be a parent, guardian, or other person supervising the welfare of the child____ The duty need not be stated in the penal code but may arise from contractual obligation, from settled principles of tort or family law, or from other legal sources.”

Id. See: Model Penal Code § 207.13 comment (Tent.Draft No. 9, 1959).

The Supreme Court has said that Section 4304 was drawn broadly to cover a wide range of conduct in order to safeguard the welfare and security of children. It is to be given meaning by reference to the common sense of the community and the broad protective purposes for which it was enacted. Commonwealth v. Mack, 467 Pa. 613, 618, 359 A.2d 770, 772 (1976). Thus, the “common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate what particular conduct is rendered criminal by it.” Id., quoting Commonwealth v. Marlin, 452 Pa. 380, 387, 305 A.2d 14, 18 (1973) and Commonwealth v. Randall, 183 Pa.Super. 603, 611, 133 A.2d 276, 280 (1957).

In Commonwealth v. Morrison, 265 Pa.Super. 363, 401 A.2d 1348 (1979), a violation of this section was founded upon a failure by parents to take a child to a doctor for a two month period while burns on the child’s penis did not heal and it began to swell and became infected, and where the lack of treatment rendered loss of the organ a possibility. In Commonwealth v. Humphreys, 267 Pa.Super. 318, 406 A.2d 1060 (1979), a battered child was found lying dead on the floor of an unlighted and uncarpeted, locked bedroom whose only window had been nailed shut. The boy, according to the evidence, had become ill, but his mother had refused to take him to a hospital for fear that the welfare agency would discover the boy’s bruises and take him away from her because of the repeated beatings inflicted upon him. In both of these cases the evidence was held sufficient to sustain convictions for violating Section 4304.

In Commonwealth v. Moore, 261 Pa.Super. 92, 395 A.2d 1328 (1978), a conviction for endangering the welfare of a child was obtained on evidence that a 265 pound father had beaten a seven year old child with a paddle stick until the child fell to the floor and could not stand. In Commonwealth v. Brown, 273 Pa.Super. 22, 416 A.2d 1069 (1979), a violation was found from a single incident in which a father severely beat his son. In both of these cases, sufficiency of the evidence to sustain the conviction was assumed; in neither case was the issue raised on appeal to this Court.

In Commonwealth v. Grassmyer, 266 Pa.Super. 11, 402 A.2d 1052 (1979), the charges grew out of an attack on a five year old girl left in defendant’s custody. The Court held that endangering the welfare of a child was a specific intent crime. In its opinion, the court clearly implied that a violation could be based upon a single act committed during temporary custody of a child.

Appellant has cited no case, and our own research discloses none, in which conduct was proved that was similar to that attributed to appellant in the instant case. Nevertheless, the “sense of decency, propriety and the morality which most people entertain” enables us to hold that the evidence was sufficient to permit a jury to find appellant’s conduct culpable. He violated a duty owed to the children in his custody and thereby endangered their physical and moral welfare.

Taylor argues, however, that his acquittal by the jury on charges of assault and sexual offenses was a rejection of the childrens’ testimony regarding events allegedly occurring in the motel room. He contends that his conviction for endangering the childrens’ welfare should also be set aside. It is well settled in Pennsylvania that “a fact finder may render inconsistent verdicts.” Commonwealth v. Mathis, 317 Pa.Super. 362, 369, 464 A.2d 362, 366 (1983). See: Commonwealth v. Gravely, 486 Pa. 194, 205, 404 A.2d 1296, 1301 (1979) (plurality opinion); Commonwealth v. Celane, 311 Pa.Super. 93, 100, 457 A.2d 509, 513 (1982); Commonwealth v. Glasco, 298 Pa.Super. 189, 192, 444 A.2d 724, 725 (1982). “A jury’s verdict in a criminal case will not be set aside merely because it appears to be inconsistent with another verdict of the jurors. So long as the challenged verdict is supported by the evidence, we will not on review delve into the thought process of the jury.” Commonwealth v. Graves, 310 Pa.Super. 184, 198, 456 A.2d 561, 568 (1983) (citations omitted). As we have attempted to show, the jury’s verdict was supported by the evidence; and, therefore, it will not be disturbed on insufficiency grounds.

Appellant is entitled to a new trial, however, because the trial court, in response to an inquiry by the jury, altered the thrust of the prosecution and permitted a conviction based on a theory of criminal liability which had neither been alleged by the Commonwealth nor substantiated by proof. The criminal complaints signed by the arresting police officer alleged with specificity the acts committed by appellant. Those acts occurred, according to the complaint, between the hours of 0024 and 1000 on August 18, 1980 in Room # 136 of the Penn Motel, Lincoln Highway and Street Road in Bensalem Township. The complaint was drafted in compliance with the provisions of Pa.R.Crim.P. 132(5) and (6) which mandate that a criminal complaint allege “the place where the offense is alleged to have been committed” and include “a summary of the facts sufficient to advise the defendant of the nature of the offense charged.” The complaint in the instant case did not aver expressly or by implication that appellant had been guilty of acts committed outside the motel room. Specifically, it did not contain averments of any criminal activity committed prior to registration at the motel or while appellant was driving a motor vehicle on the roads of Bucks County.

A crime formally charged in an information, although it need not be precisely the same as the offense stated in the complaint, must nevertheless be “substantially the same as or cognate to the offense charged in the complaint.” Pa.R.Crim.P. 225(b)(5). A defendant cannot be required to answer a charge different from or unrelated to the one for which he was arrested and held to bail. Commonwealth v. Wilkinson, 278 Pa.Super. 490, 497, 420 A.2d 647, 650-651 (1980), quoting Commonwealth v. Musto, 348 Pa. 300, 302-303, 35 A.2d 307, 309 (1944). See and compare: Commonwealth v. El, 273 Pa.Super. 1, 8, 416 A.2d 1058, 1062 (1979); Commonwealth v. Epps, 260 Pa.Super. 57, 60, 393 A.2d 1010, 1011 (1978); Commonwealth v. Bruno, 203 Pa.Super. 541, 548, 201 A.2d 434, 437 (1964), cert. denied, 379 U.S. 965, 85 S.Ct. 656, 13 L.Ed.2d 558 (1965); Commonwealth v. Gross, 161 Pa.Super. 613, 621, 56 A.2d 303, 307 (1948). The information must contain a plain and concise statement of the essential elements of the offense. See generally: Commonwealth v. McIlwain School Bus Lines, Inc., 283 Pa.Super. 1, 423 A.2d 413 (1980); Commonwealth v. Wilkinson, supra; Commonwealth v. Davenport, 255 Pa.Super. 131, 386 A.2d 543 (1978); Commonwealth v. Jackson, 248 Pa.Super. 420, 375 A.2d 168 (1977); Common wealth v. Wolfe, 220 Pa.Super. 415, 289 A.2d 153 (1972); Harger v. Commonwealth, Dept. of Transportation, 17 Pa.Cmwlth. 142, 330 A.2d 883 (1975).

The information in the instant case alleged no facts. It did no more than charge, in the language of the statute, that appellant had endangered the welfare of children. At trial, however, the Commonwealth proceeded in faithful consistency with the charges contained in the complaint. The Commonwealth’s proof was directed to the events which had allegedly occurred in Room 136 of the Penn Motel. The Commonwealth did not attempt to prove that appellant had been intoxicated while driving his motor vehicle or that he had operated his vehicle in a way that was reckless or even negligent. The evidence presented by the defense was directed also to the factual averments contained in the complaint. Appellant’s evidence contradicted the evidence of the Commonwealth as to the occurrences in the motel room. Appellant testified that he had beer to drink, had become tired and sleepy and had decided to get a room for the night. Although appellant conceded that he had become sleepy, there was no evidence that he was intoxicated or that he had violated any duty to the children while driving which endangered their welfare. The case was initially submitted to the jury without any suggestion by the trial court that the factual issues for the jury to decide included events other than those alleged to have occurred in the motel room.

After jury deliberations had commenced, the jury returned with three questions pertaining to the charge of endangering the welfare of children. One of them was phrased as follows: “In this case, must Endangerment be applied only to the ‘motel location’ or can it apply to other locations in Bucks County where the defendant [sic] allegedly was — example—Rt. 413 — Rt. 1 [locations of near accident in Bucks County and bar where Taylor stopped].” Over a defense objection, the court instructed the jury that it was entitled to consider “all the evidence of any conduct which occurred in this jurisdiction.”

This instruction was erroneous. It permitted the jury to convict appellant on the basis of conduct which had not previously been included in the accusation against him. The information, to be sure, had charged appellant generally with endangering the welfare of children. The complaint, however, had been specific. The conduct complained of had occurred in the motel room, and that is what the Commonwealth attempted to prove. To permit the jury during its deliberations to change its focus and base a possible conviction on the manner in which appellant had driven his car before arriving at the motel was erroneous and unfair. See and compare: Commonwealth v. Schomaker, 293 Pa.Super. 78, 437 A.2d 999 (1981), rev’d on other grounds, 501 Pa. 404, 461 A.2d 1220 (1983) (where indictment seeks conviction upon a theory of intentional criminal conduct, the Commonwealth must confine its proof to that theory and a jury instruction permitting conviction upon a theory of recklessness is reversible error). The change in focus came as a complete surprise to appellant. It came after the presentation of evidence had been completed and, therefore, at a time when neither appellant nor the Commonwealth could present evidence or argue facts to assist the jury in determining whether a crime had been committed before appellant arrived at the motel. The jury was also permitted to speculate about such an offense without any guidance by the court. Indeed, one must necessarily ask, on what basis would the jury find guilt? There was no evidence of a knowing violation of a duty of care, protection or support which endangered the welfare of the children before they arrived at the motel. There was no evidence that appellant had been intoxicated or under the influence of alcohol so as to be unable to operate a motor vehicle safely. Neither his prior consumption of beer nor the fact that he became sleepy was an adequate basis upon which to base a conviction for violating Section 4304. The prosecution did not contend and the evidence did not prove that appellant’s conduct while driving the car to the motel had constituted a knowing endangerment of the children’s welfare by failing to provide for their care, protection or support while they were passengers in his car. To allow the jury to so find was error. A new trial, therefore, is necessary.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . Section 207.13 of the Model Penal Code (Tent. Draft No. 9, 1959) specifically referred to the endangerment of a child’s “physical or moral” welfare. A subsequent suggestion to add "mental” to the description "prompted deletion of all qualifying adjectives as an economical way to achieve comprehensive coverage.” Model Penal Code § 230.4 comment (Official Draft and Revised Comments 1980).