text:
    583 A.2d 823
    Joan CAPLAN v. Bruce CAPLAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 28, 1990.
    Filed Dec. 27, 1990.

      David S. Rasner, Philadelphia, for appellant.
    Joan Caplan, pro se.
    Before OLSZEWSKI, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from the Order of March 20, 1990 dismissing the exceptions of appellant Bruce M. Caplan to the Master’s recommendations, and ordering appellant to pay $280 per week for the support of his two children and $75 per week for the support of his wife. The Order further required appellant to pay $50 per week toward arrearages, two-thirds of the mortgage obligation per month and 75 per cent of unreimbursed medical and dental expenses. Appellant contends the trial court abused its discretion in: (1) failing to provide a hearing de novo upon appellant’s exceptions to the Master’s recommendations; (2) failing to make the mandatory Melzer and support guideline calculations; (3) failing to apply the new mandatory Uniform Support Guidelines; and (4) improperly calculating appellant’s and appellee’s income. For the reasons set forth herein, we vacate the ordered support and remand for proceedings consistent with this memorandum.

Appellant Bruce M. Caplan and appellee Joan Rebecca Caplan were married on April 12, 1978 and separated in June, 1987. The parties are the parents of two minor children, who reside with appellee in the marital home.

Appellee filed a complaint for support on December 7, 1988. A hearing was held before a Master on September 29,1989, and on October 25,1989, appellant filed exceptions to the Master’s recommendations and requested a hearing de novo. A hearing on appellant’s exceptions to the Master’s report was held on March 13, 1990 before the Honorable Richard S. Lowe. On March 20, 1990, the court dismissed appellant’s exceptions to the Master’s recommendations and adopted the Master’s recommendations in toto, as set forth above.

As an initial matter, we note that this Court’s standard of review for claims concerning support Orders is a narrow one.

A trial court has broad discretion concerning support payments and we will not reverse its decision unless there is insufficient evidence to sustain it or the trial court abused its discretion in fashioning the award. Funk v. Funk, 376 Pa.Super. 76, 82, 545 A.2d 326, 329 (1988); Lampa v. Lampa, 371 Pa.Super. 1, 6, 537 A.2d 350, 353 (1988). More than mere error of judgment is required, discretion is abused only if the law is overridden or misapplied or the judgment exercised is manifestly unreasonable. Lampa v. Lampa, supra; see also Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988).

Lesko v. Lesko, 392 Pa.Super. 240, 243, 572 A.2d 780, 782 (1990).

Appellant argues the trial court failed to provide him, “in substance, with a hearing de novo, in accordance with the Pennsylvania Rules of Civil Procedure because it relied upon the Master’s report and therefore failed to provide an independent calculation for its award of support.” (Brief of appellant at p. 11.) In Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), the Supreme Court established a formula for the calculation of child support. In calculating the support obligations of the parents under Melzer, the trial court must first determine and set forth on the record the reasonable needs of the child. Lesko, supra; Lampa, supra. The calculated Melzer formula must be made part of the record to insure that a specific monetary figure is determined as to the reasonable needs and expenses of the parents and children. Racciato v. Racciato, 393 Pa.Super. 307, 574 A.2d 625 (1990). Recent case law, however, has excepted two situations from the requirement of an on-the-record Melzer calculation: (1) where wife had no income to calculate Melzer formula, Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989); or (2) where there is an intentional failure by a party to provide accurate income information for the Melzer formula, Olson v. Olson, 384 Pa.Super. 224, 558 A.2d 93 (1989). Neither exception is applicable instantly. While the trial court stated the Master made all calculations and findings necessary under Melzer, the trial court did not set forth its own Melzer calculations, and the Master’s findings and recommendations made part of the record do not disclose any Melzer calculations. Thus, we find the trial court abused its discretion in failing to follow the mandate of Melzer and its progeny in adopting the Master’s recommendations without independent on-the-record discussion of its reasons for doing so. Accordingly, on remand, the trial court should set forth on the record the required Melzer calculations.

Appellant also argues the trial court erred in failing to apply the mandatory uniform support guidelines adopted by the Supreme Court, effective September 30, 1989. Pa.R. C.P. 1910.16-1, et seq., 42 Pa.C.S.A. We agree. The trial court stated:

Defendant is not entitled to have the September 30, 1989 guidelines applied to this controversy. The Master’s Findings and Recommendations were made prior to the effective date of the new guidelines. The Master and this Court were required to make all calculations, findings, and recommendations according to the guidelines in effect prior to September 30, 1989.

(Slip Op., Lowe, J., 5/2/90, pp. 1-2.)

In a recent case dealing with appeals of a child support Order, which appeals were filed prior to the effective date of the adoption of the uniform support guidelines, this Court vacated the support Order and remanded the case to the trial court for retroactive application of the new guidelines. Moore v. Moore, 390 Pa.Super. 174, 568 A.2d 250 (1990). The Court found support for its decision in a previous holding that “applied new or amended rules to actions commenced prior to the effective date of the adoption or amendment of the rule. See, Joseph Palermo Development Corp. v. Thomas Bowers, 388 Pa.Super. 49, 564 A.2d 996 (1989).” Id., 390 Pa.Superior Ct. at 177-78, 568 A.2d at 252. The Court in Moore found such an application in a pending case most effectively served judicial economy and the best interest of the parties. Therefore, on remand, the trial court should consider not only the Melzer formula, but also the new uniform support guidelines, as well as the particular circumstances of this case, in determining a support award. Lesko, supra; Moore, supra.

Given our foregoing disposition of the issues, we do not address appellant’s argument that the trial court erred in the attribution and calculation of the parties’ incomes. We recognize these are areas within the broad discretion of the trial court, provided with sufficient evidence to make a determination. We vacate the support Order and remand to ensure the trial court has before it the necessary implements, namely, the Melzer formula and the new uniform support guidelines, to exercise properly its broad discretion in fashioning a support award.

Vacated and remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.

      . Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).

      . The Rules of Civil Procedure, Actions for Support, Rule 1910.11, 1910.12 provide for alternative expedited processes for determination of support by a domestic relations officer and a permanent hearing officer. The rules also provide for a judicial determination upon a hearing de novo or upon a hearing on exceptions. This case came to the trial court on exceptions from the Master’s report following which the court took extensive testimony. While it could not be construed a hearing de novo since the court also relied on the record made by the Master, the court did create a more extended record from which an appropriate Order could be made. We do not believe the procedure followed by the court violated the rules cited above.

      . Appellant also argues the trial court erred in ordering appellant to pay two-thirds of the mortgage payment on the marital residence. Under the new uniform support guidelines, it is assumed “that the spouse occupying the marital residence will be solely responsible for the mortgage payment ... unless there are unusual circumstances such as an unusually high mortgage payment." Pa.R.C.P. 1910.16-5(f). Resolution of this issue undoubtedly will be accomplished by the trial court on remand.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    583 A.2d 826
    Esther PAPA, Appellant, v. FRANKLIN MINT CORPORATION, Peg Hladky and Ed Leudtke, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1990.
    Filed Dec. 21, 1990.

      Barry Levin, Philadelphia, for appellant.
    Louis A. Bove, Philadelphia, for Franklin Mint, appellee.
    Before WIEAND, KELLY and CERCONE, JJ.
   OPINION

PER CURIAM:

In this action to recover damages for depression and emotional distress alleged to have been inflicted upon the plaintiff intentionally by her employer and co-employees, the trial court entered judgment on the pleadings in favor of the defendant employer because of the exclusivity provisions of the Workmen’s Compensation Act. See: Workmen’s Compensation Act of June 2,1915, P.L. 736, § 481(a), as amended, 77 P.S. § 481(a). After careful review, we affirm.

The Supreme Court of Pennsylvania has held that there is no intentional tort exception to the exclusivity clause of the Workmen’s Compensation Law. See: Barber v. Pittsburgh Corning Corporation, 521 Pa. 29, 555 A.2d 766 (1989); Poyser v. Newman & Co., Inc., 514 Pa. 32, 522 A.2d 548 (1987). The exclusivity provision is not rendered ineffective merely because the claimant-employee, in proceedings to recover workmen’s compensation benefits, was unable to prove a compensable injury. For injuries allegedly occurring during the course of employment, an employee’s remedy is limited to those provided by the Act. If the employee fails to prove a compensable injury in workmen’s compensation proceedings, such failure will not support a second attempt to prove injury in a common law tort action against the same employer.

The judgment entered in favor of the Franklin Mint Corporation is affirmed.

      . See: Papa v. Workmen’s Compensation Appeal Board (Franklin Mint Corporation), 121 Pa.Commw. 10, 549 A.2d 1352 (1988).


author: OLSZEWSKI, Judge:

text:
    583 A.2d 1157
    MELLON BANK, N.A., Appellant, v. Gregory J. HOLUB and Nancy L. Holub, Appellees. Nancy L. HOLUB, Appellee, v. Gregory J. HOLUB, Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1990.
    Filed Nov. 29, 1990.
    Reargument Denied Jan. 14, 1991.

      Thomas E. Reilly, Pittsburgh, for appellant (at 1616).
    Thomas J. Michael, Pittsburgh, for appellant (at 1772).
    Eugene J. Reinbold, Pittsburgh, for appellee (at 1616 & 1772).
    Before CIRILLO, President Judge, and OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This matter comes before this Court after a consolidated trial resulted in two final orders: the first, a judgment entered on behalf of appellee, Nancy Holub and against appellant, Mellon Bank on Mellon’s action for liability on a loan; and the second, a final decree awarding the entire marital estate of Gregory and Nancy Holub to appellee, Nancy Holub.

The factual and procedural circumstances of each case are so intertwined that they are best understood when viewed together. Gregory and Nancy Holub were married on January 1, 1956. Two children were born of the marriage, both now adults. Throughout the early years of their marriage, Gregory and Nancy lived an affluent lifestyle. Gregory was employed overseas by various corporations and the couple enjoyed a life of international travel along with its attendant luxuries. All was not well with the marriage, however, and as early as 1962 the couple discussed divorce.

In 1968, Mr. Holub was hired by Gulf Oil Company and the couple returned to the United States, residing in Florida. Mr. Holub was then transferred to Pittsburgh in 1971 where the couple purchased a home. Mr. Holub remained with Gulf Oil until 1978 when his department was eliminated. He continued to act as a consultant to the company until mid 1979. Around this time, Nancy again requested a divorce. Amicable discussions ensued between the two with the objective of structuring a suitable settlement agreement. Included among these discussions was a proposal by Mr. Holub to develop a business which would provide an income for Mrs. Holub. The parties eventually chose a fast-food franchise.

The new business required financing. In October of 1978, Mellon Bank agreed to lend $50,000.00 to a holding company created by Mr. Holub to fund the fast-food project. One of the conditions of the agreement required both Gregory and Nancy to sign personal guaranties. A guaranty containing what was purported to be Nancy Holub’s signature was delivered to Mellon Bank. In fact, Mr. Holub had placed her signature on the guaranty without her permission. On the basis of the guaranty, the loan to the holding company was completed on September 6, 1979.

Returning to the marriage, on July 24,1980, Nancy Holub filed a complaint in divorce, which sought equitable distribution, alimony, counsel fees and expenses. Around the same time, Mr. Holub obtained a position with Merrill Lynch at its Stamford, Connecticut office. This situation remained unchanged until February 19, 1981, at which time Mr. Holub was arrested for criminal solicitation and attempted murder of his wife. From this point on, the situation turned decidedly worse.

On March 2, 1981, due to delinquent payments, Mellon Bank filed a confessed judgment on the outstanding debt in the amount of $42,697.54. This judgment was later opened by agreement of the parties. On March 29, 1988, the court acknowledged this agreement and further ordered that Nancy Holub’s liability would be tried together with the equitable distribution proceedings. The matter eventually proceeded to trial before the Honorable Eugene B. Strassburger, sitting without a jury. After several days of testimony over a span of some five months, the court, on January 10, 1989 entered its opinion, decree nisi, and order. First, the court found that Gregory Holub had placed Nancy Holub’s signature on the Mellon Bank guaranty without her permission. Because, however, Mrs. Holub had later come to know of this act and because she had reaped the benefits of the business, the court found that she had ratified the falsified signature. Accordingly, the court found Mrs. Holub liable on the guaranty. Second, in regard to the equitable distribution, the court found that under 28 P.S. § 401(d), Mrs. Holub was entitled to the remains of the entire marital estate.

Post-verdict motions were filed by all parties. On October 5, 1989, in relation to the Mellon Bank case, the court granted Nancy Holub’s motion on the basis that her signature was a forgery and, as such, it could not be ratified. The court, therefore, vacated its prior order and held in favor of Mrs. Holub. Mellon’s motion for reconsideration was denied. Further, on October 11, 1989, following argument, the court denied Gregory Holub’s post-verdict motions, relying on the reasons advanced in its opinion of January 10, 1989. Thereafter, Mellon and Gregory Holub filed their respective appeals.

MELLON BANK v. HOLUB

NO. 1616 PITTSBURGH 1989

We will first consider the appeal of Mellon Bank. Mellon contends that the court erred in concluding that Nancy Holub’s signature on the guaranty constituted a forgery. Rather, Mellon contends that the court correctly determined in its opinion dated January 10,1989, that the signature was merely unauthorized and that Mrs. Holub, by her actions, had ratified its use. Mellon further contends that Mrs. Holub is now estopped from denying the validity of the signature.

In its opinion dated January 10, 1989, the court found as a fact that Mrs. Holub had been aware of the signature but that she had done nothing about it. The court further found that Nancy Holub had known of the connection between the signature and the loan for her business. Despite this knowledge, Mrs. Holub did not attempt to destroy the guaranty, nor did she confront her husband or Mellon Bank. Instead, as the court found, she began serving as a bookkeeper for the business for which she received a stipend of $25.00 per week. From these facts, the court concluded that Mrs. Holub had ratified her unauthorized signature.

Upon consideration of Mrs. Holub’s post-verdict motion, however, the court concluded that her signature constituted a forgery and thus, could not be ratified. The court based this conclusion on Heinrich Chemical Co. v. Ingram, 104 Pa.Super. 257, 159 A. 77 (1931); Funds for Business Growth, Inc. v. Maraldo, 443 Pa. 281, 278 A.2d 922 (1971); Austen v. Marzolf 294 Pa. 226, 143 A. 908 (1928); and Wolgin v. Mickman, 233 Pa.Super. 218, 335 A.2d 824 (1975). Each of these cases would stand for the proposition that a forged signature on a non-negotiable instrument can never be ratified. Because the court, after argument on post-verdict motions, found the signature of Mrs. Holub a forgery, it vacated its earlier order in favor of Mellon Bank.

Mellon agrees that a forged signature on a non-negotiable instrument cannot be ratified. Rather, it contends that the court erred in labeling the signature a forgery. Mellon argues that the court was correct in the first instance in construing the signature as merely unauthorized and thus, capable of being ratified. Because Mellon takes this position, it would therefore find the trial court’s analysis set forth in the opinion of January 10, 1989 dispositive here.

Mellon argues against the court’s finding of forgery for several reasons. First, Mellon contends that the cases cited by the court do not discuss what actually constitutes a forgery. Contending that forgery is defined by the crimes code as an act involving an intent to defraud, Mellon claims that no such finding was ever made by the court in the instant case, nor do the facts support such a finding. Accordingly, Mellon contends that no forgery was present here, therefore, the court’s earlier findings of ratification should control.

Mrs. Holub contends that the court was correct in determining that the signature on the guaranty was indeed a forgery. She maintains that an intent to defraud was present in this case, as Mr. Holub, by his use of the signature, attempted to create a liability in Mrs. Holub where none existed before. As ample evidence of this intent was present on the record, Mrs. Holub contends that the court’s conclusions of forgery was correct. Accordingly, Mrs. Holub argues that the court properly held in her favor.

Both parties agree that an essential element of a forgery, whether in a civil or criminal context, is the intent to defraud. Shay v. Merchants Banking Trust Co., 335 Pa. 101, 6 A.2d 536 (1939). Both parties also agree that Mr. Holub signed his wife’s name to the guaranty and surety-ship agreement. The parties disagree, however, as to whether an intent to defraud was shown in the instant case. Examining both arguments, we must agree with appellee that such an intent was indeed present in the instant case.

Appellant would rely on several cases in an effort to establish that the conduct of Mr. Holub in signing his wife’s name was a mere unauthorized act. For example, in Commonwealth v. DiPiero, 205 Pa.Super. 312, 208 A.2d 912 (1965), this Court held that a party who signs the name of a non-existent person to a document does not commit a forgery as the non-existent person could not be harmed by the act. Similarly, in Shay v. Merchants Banking Trust Co., supra, our Supreme Court held that a forgery does not result where an insured to a life insurance policy signs his wife’s name to a written assignment of the policy’s proceeds because the insured was free to remove his wife as beneficiary of the policy at any time without her signature or consent. Because the wife possessed no right to the proceeds during the life of her husband, she was not harmed by her husband’s act of signing her name to the document. Absent the resulting harm, no forgery occurred.

The cases relied upon by appellant are clearly inapposite to the situation presented herein. As appellant would acknowledge, the use of an unauthorized signature capable of producing prejudice to the victim would constitute the crime of forgery. Just such a circumstance exits herein. Here, it is certain that the husband affixed the wife’s signature to the guaranty. It is equally certain that had he not done so, no liability could have attached to appellee. It logically follows, therefore, that the presence of the appellee’s signature on the guaranty harmed her to the extent that it presented the possibility of liability where none existed before. The fact that both parties had executed an earlier commitment letter to sign the guaranty does not change this result. Unless or until appellee actually placed her signature on the guaranty and agreed to be bound by it, no liability could attach to her. Accordingly, we find, as did the trial court, that the actions of Mr. Holub constituted a forgery.

Having concluded that the evidence was sufficient to show a forgery, we have no trouble deciding that a ratification of appellee’s signature could not have occurred. Both parties agree that a forged non-negotiable instrument cannot be ratified. Because such existed in the present case, appellant’s claim of ratification must fail.

Appellant also contends that appellee should be estopped from denying the validity of her signature. Appellant asserts that the conduct of appellee in the instant case should preclude her from escaping the effect of her husband’s forgery. Specifically, it is argued that appellee knew of her forged signature, that she did nothing in the face of this knowledge, and that she “reaped the benefits” of the loan to the detriment of a completely “innocent” appellant. We cannot agree.

Of course, it is true that the doctrine of equitable estoppel is available to deny a defense where the party claiming estoppel lacked knowledge of the truth, relied upon the conduct of the party against whom the estoppel is asserted, and to its detriment, took action based on that conduct that prejudicially changes its position. Cheltenham National Bank v. Snelling, 230 Pa.Super. 498, 326 A.2d 557 (1975). It is also true, however, that “in the absence of expressly proved fraud, there can be no estoppel based on the acts or conduct of the party sought to be estopped, where they are as consistent with honest purpose and with absence of negligence as with their opposites.” In re Tallarico’s Estate, 425 Pa. 280, 288, 228 A.2d 736, 741 (1967).

Instantly, it is acknowledged that appellee knew of the signature on the guaranty as early as June of 1979. Appellee did not know, however, nor was she made aware, that her husband delivered the guaranty to appellant some three months later. When asked of the connection between her signature and the eventual loan, appellee testified that because of the disparity in the date of the actual loan in relation to the time she first noticed the guaranty, no association was made that they were one in the same deal.

Appellant makes much of the fact that appellee had “reaped the benefits” of this loan while working at the new business. The benefit actually received, however, was a mere $25.00 per week as a bookkeeper at a business which was designed to provide for her after the divorce. In fact, it was the husband who provided the bulk of the management for the business, and it was also he who structured the system for making payment on the loan to appellant. Indeed, if appellant relied on anyone’s conduct during the course of the events which transpired in this case, it most assuredly relied on the husband’s rather than appellee. The conduct of appellee in the transaction is not the sort of conduct envisioned by our courts which would hold her solely responsible for the guaranty despite her husband’s forgery. See In re Tallarico’s Estate, supra. Nor can it be likened to fraud. Accordingly, we conclude that appellant’s estoppel theory must fail.

HOLUB v. HOLUB

NO. 1772 PITTSBURGH 1989

In the appeal from the court’s equitable distribution order, Mr. Holub contends that the trial court abused its discretion by failing or neglecting to consider all relevant factors contained in 23 P.S. § 401(d) of the Divorce Code. This failure, Mr. Holub contends, was the result of of a preference or bias on the part of the court towards Mrs. Holub and against himself. Because of these abuses, Mr. Holub asks that we remand this matter to the trial court with instructions to equitably divide the marital property.

In its opinion, the trial court conducted an extensive history of the parties’ marriage noting the various positions held by Mr. Holub as well as the variety of business interests he engaged in. In rendering its order, the court made specific mention of the factors outlined in § 401(d) namely: the length of the marriage; the relative earning capacities of the parties; the contribution by one party to the increased earning power of the other party; the opportunity for future earnings; the contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of marital property; the standard of living of the parties, and their relative needs.

Appellant contends that the court failed to consider whether the parties had any prior marriages, although he admits that this is irrelevant to this case. He also contends that the court did not address several other factors, namely: the age and health of the parties, and their likelihood of obtaining employment; the sources of income of both parties including social security and pensions; the value of the property set apart to each party; and the economic circumstances of each party at the time the division of property would be effected. Appellant argues that the failure of the court to consider these factors evinces an ill-will towards him. He asserts that the conviction for soliciting another to kill his wife was the deciding factor in the court’s distribution order.

Mrs. Holub disagrees with appellant regarding the court’s distribution scheme. She contends that each factor of § 401(d) was examined in the court’s opinion. In considering these factors, she argues that the court merely chose to give some a greater weight than others, which is well within the court’s discretion. Regarding appellant’s conviction, Mrs. Holub contends that the court viewed it only in terms of appellant’s dissipation of assets, which is a perfectly proper use of such evidence. Finally, with regard to the amount of the award, Mrs. Holub relies on the court’s conclusion that due to appellant’s questionable business dealings, the actual estate consists of relatively few assests, some of decreased value. Accordingly, Mrs. Holub argues in favor of upholding the distribution order.

The standard of appellate review of orders concerning equitable distribution is an abuse of discretion. Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984). In utilizing this standard, we apply the legislative guidelines found in the Divorce Code. For matters concerning equitable distribution, the guidelines are found at § 401(d). The weight to be given to the § 401(d) factors is well within the discretion of the trial court. Sergi, supra 351 Pa.Super. at 598, 506 A.2d at 934. Indeed, in Semasek we noted:

... that there is no simple formulation by which to divide marital property. The method of distribution derives from the facts of the individual case. The list of factors of § 401(d) serves as a guideline for consideration, although the list is neither exhaustive nor specific as to the weight to be given the various factors. Thus, the court has flexibility of method and concomitantly assumes responsibility in rendering its decisions.

331 Pa.Super. at 11, 479 A.2d at 1052.

Upon examination of the trial court’s opinion in this matter, it appears that Mrs. Holub’s position is the correct one. The court did an extensive analysis of the facts of this case and how they apply to § 401(d). While the court made specific mention of certain provisions of § 401(d), it is clear that the court took the entire statute into consideration. Any appearance of bias or ill-will towards appellant seems to be the result of his dissatisfaction with the award, not any abuse on the part of the trial court. Any mention of appellant’s criminal conviction was done solely in the context of his dissipation of the marital assets, a use well within the trial court’s discretion. See LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971, appeal denied, 514 Pa. 648, 524 A.2d 494 (1987) (consideration of husband’s extramarital affair not improper under § 401(d) where use limited solely to issue of dissipation of marital assets). Nor did the court err in awarding the entire marital estate to appellee. See Fratangelo v. Fratangelo, 360 Pa.Super. 487, 520 A.2d 1195 (1987) (trial court erred in failing to award entire estate to wife in light of, among other things, § 401(d)(7) factors). The court made numerous findings with respect to the value of the marital estate at the time of its division, and because they had the best opportunity to evaluate the evidence, we find that the award of equitable distribution was proper.

Judgments affirmed.

      . The divorce action was eventually bifurcated and a divorce decree was entered on July 2, 1984. The economic issues were allowed to proceed separately and were eventually heard as part of the instant case.

      . Mr. Holub is currently serving a sentence of five to ten years after conviction on the solicitation charge.


author: BROSKY, Judge.

text:
    583 A.2d 1162
    COMMONWEALTH of Pennsylvania v. John Thomas PARKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 9, 1990.
    Filed Dec. 3, 1990.
    Reargument Denied Jan. 14, 1991.
    Petition for Allowance of Appeal Granted March 18, 1991.

      Robert B. McGuinness, Towanda, for appellant.
    Robert Fleury, Asst. Dist. Atty., Troy, for Com., appellee.
    Before ROWLEY, BECK and BROSKY, JJ.
   BROSKY, Judge.

John Parker appeals from the judgment of sentence of the trial court entered March 6, 1990, revoking his parole and ordering him to complete the term of imprisonment imposed on April 3,1989. On March 13,1989, he pled guilty to driving under the influence of alcohol. On April 3, 1989, appellant was sentenced to a term of imprisonment of forty-five days to twenty-three months and twenty-nine days. On May 26, 1989, appellant was granted parole; he was released from prison on May 30, 1989. On December 29, 1989, the Bradford County Probation Office filed a Petition for Reconsideration of Parole, alleging that appellant had been observed consuming alcoholic beverages in violation of his parole. On March 6, 1990, following a Gagnon II hearing, appellant’s parole was revoked and he was remanded to prison to complete the sentence imposed on April 3, 1989. Appellant filed an appeal to this court on April 3, 1990. Appellant filed a Petition for Parole in the trial court which was granted on May 30, 1990; he was released from prison on June 16, 1990 and is currently on parole.

Appellant claims on appeal that the trial court erred in revoking his May 26, 1989 parole. We affirm.

In an unrelated incident, on December 5,1989, appellant’s brother, Leslie Parker, shot appellant in the leg. Criminal charges were filed against Leslie. Appellant received a subpoena and appeared on December 21, 1989 for Leslie’s preliminary hearing; appellant was to testify as a Commonwealth witness. Appellant initially invoked his Fifth Amendment right against self-incrimination. The District Attorney offered appellant a grant of immunity in exchange for his testimony. The testimony at the Gagnon II hearing indicated that appellant was told once that he was being offered “use immunity.” N.T., 3/6/90. The district attorney testified at the Gagnon II hearing that he stated to appellant that he was, “granting him immunity.” N.T., 3/6/90, at 15-16. Therefore, the district attorney used the singular word “immunity” to appellant oil at least one occasion. Appellant then testified and his testimony revealed that he had consumed alcoholic beverages while on parole.

Appellant specifically claims that pursuant to Commonwealth v. Kaye, 232 Pa.Super. 506, 335 A.2d 426 (1975), the trial court erred in rejecting appellant’s affirmative defense of estoppel to a finding that appellant violated his parole. The court in Kaye held that, “Perhaps ... assurances [that a person receiving immunity would not be prosecuted] would raise an estoppel, but estoppel is not a bar to prosecution; it is at most an affirmative defense, which a defendant may invoke on due process grounds.” Id., 232 Pa.Superior Ct. at 511, 335 A.2d at 428 (Emphasis added). Kaye cited Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), and Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), in support of the proposition that a defendant may invoke the defense on due process grounds. Appellant also avers that since he was unrepresented by counsel at his brother’s preliminary hearing, “it would not be realistic to attribute to a layman the ability to discern between use immunity and transactional immunity.” Appellant’s Brief at 9. We . must now decide if the defense of estoppel should have precluded a finding that appellant violated his parole.

We note that appellant has admitted that he consumed alcohol in violation of his parole; we are only deciding if his reliance on a promise of “immunity” should estop a revocation of parole. We will give appellant the benefit of the doubt and assume that he did not know the difference between “use immunity” and “transactional immunity.” Let us assume that he believed that his testimony regarding alcohol consumption would not lead to a revocation of his parole.

Cox v. Louisiana, supra, and Raley v. Ohio, supra, cited in Commonwealth v. Kaye, supra, are distinguishable from the instant case. The United States Supreme Court in Cox reversed convictions of breach of the peace and obstructing public passages because of the vagueness and unlimited discretion granted to officials in the Louisiana statutes relied upon. In Raley, the same court reversed convictions of three defendants for refusal to answer questions at a state legislative inquiry; the defendants were previously informed by the state that they had the right to rely upon the privilege against self-incrimination but were not told that an Ohio immunity statute deprived them of the protection of the privilege. We do not see the relevance of Cox to the instant case. Raley is distinguishable since the defendants in that case were prosecuted solely because of their good faith reliance upon governmental assurances that they could assert the privilege against self-incrimination. In the instant case, there was no mention of appellant’s December 21, 1989 preliminary hearing testimony at the Gagnon II hearing. The evidence relied upon to revoke appellant’s parole came from sources independent of appellant’s testimony pursuant to the alleged grant of immunity. As mentioned, supra, appellant’s preliminary hearing testimony occurred on December 21, 1989. At the Gagnon II hearing Pennsylvania State Police Officer Anthony Morelli testified that he observed appellant on three occasions on December 5, 1989: At 12:15 p.m., Officer Morelli observed appellant and smelled beer on his breath. N.T., 3/6/90, at 5. At 5:00 p.m., at Leslie Parker’s preliminary arraignment, Officer Morelli detected the odor of alcohol on appellant’s breath and found appellant to be “in an intoxicated state.” Id. That same evening Officer Morelli observed appellant consume a can of beer at his house. Id. at 6. Appellant then offered Morelli a beer. This testimony was the only evidence adduced at the Gagnon II hearing regarding appellant’s violation of parole. The Commonwealth had no need to and did not rely upon appellant’s alleged immunized testimony when it filed a Petition for Reconsideration of Parole. Appellant’s parole was going to be revoked whether or not he testified at his brother’s preliminary hearing. The instant case is dissimilar from Raley since the alleged grant of immunity in the instant case did not lead to the resulting governmental action of parole revocation (the governmental action in Raley of telling witnesses that they could assert the privilege against self-incrimination while failing to inform them that an Ohio immunity statute negated that privilege did eventually directly result in contempt convictions for the three defendants in that case). The governmental errors committed in Raley certainly prejudiced the appellants in that case, but the error regarding the grant of immunity in the instant case did not effect a prejudicial result. Hence, appellant has not shown that the affirmative defense of estoppel should bar, on due process grounds, the revocation of his parole. Therefore, the trial court properly found that appellant had violated the May 26, 1989 parole order and revoked appellant’s parole.

Judgment of sentence affirmed.

BECK, J., concurs in the result.

      . One of the conditions of appellant’s parole was that he "abstain absolutely from the use of alcohol____” Parole Order, May 26, 1989.

      . Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

      . Pursuant to 42 Pa.C.S. § 5947, only the court (in the instant case a district magistrate) can issue an order granting "use immunity” (§ 5947 does not indicate that "transactional immunity” is available to witnesses in Pennsylvania). The order is issued in response to a request from the district attorney or Attorney General. In the instant case the district attorney never made such a request and the district magistrate never issued an immunity order to appellant. Therefore, the district attorney had no authority to grant appellant any type of immunity and wrongfully informed appellant that he was testifying pursuant to an immunity order. The district magistrate, who was not an attorney, was not aware that the district attorney did not possess the authority to grant immunity to appellant. The district magistrate believed that the grant of immunity was proper.

      . Use immunity prohibits the use in any criminal proceeding of testimony or any other information compelled under an immunity order, or any information directly or indirectly derived from such testimony or information. Commonwealth v. Johnson, 507 Pa. 27, 487 A.2d 1320 (1985). Use immunity is distinguished from transactional immunity by the breadth of protection afforded the witness. Id. “Transactional immunity precludes prosecution for any transaction concerning which testimony was compelled, regardless of source. This is broader than the so-called ‘use’ immunity statute, which forbids further use of compelled testimony or its fruits but would still permit prosecution for the same transaction if the evidence was obtained independently of the compelled testimony.” Id., 507 Pa. at 30, n. 3, 487 A.2d at 1321-22, n. 3. Appellant averred in his appellate brief that he believed at the time of his brother’s preliminary hearing that he was offered the equivalent of transactional immunity, yet he has presented no evidence to support that position.


author: WIEAND, Judge:

text:
    583 A.2d 1165
    COMMONWEALTH of Pennsylvania v. John BOWERS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1990.
    Filed Dec. 11, 1990.

      John R. Carroll, Philadelphia, for appellant.
    Karen L. Grigsby, Asst. Dist. Atty., for Com., appellee.
    Before WIEAND, McEWEN and HUDOCK, JJ.
   WIEAND, Judge:

John Bowers was tried by jury and was found guilty of aggravated assault and carrying a firearm on a public street. Post-trial motions were denied, and Bowers was sentenced to serve consecutive terms of imprisonment for not less than ten (10) years nor more than twenty (20) years for aggravated assault and for not less than two and one-half (2lh) years nor more than five (5) years on the firearms offense. On direct appeal from the judgment of sentence, Bowers asserts that the trial court erred by (1) refusing to suppress statements elicited from him by police without prior Miranda warnings; (2) denying a defense motion for mistrial based upon disclosure by a Commonwealth witness of inculpatory statements attributed to appellant, which statements had not been provided to the defense during pretrial discovery; and (3) giving erroneous and confusing instructions to the jury regarding the possible verdicts of not guilty by reason of insanity and guilty but mentally ill. Finding no merit in any of these contentions, we affirm the judgment of sentence.

On July 27, 1987, at or about 5:00 p.m., Laureen Marrandino and her boyfriend, Thomas Vargas, were walking along Bainbridge Street in South Philadelphia, engaged in an argument The two stopped in front of appellant’s residence at 416 Bainbridge Street, where the argument continued. When they were told by appellant’s two granddaughters to be quiet, a dispute developed between Marrandino and appellant’s granddaughter, Natalie. During this secondary verbal dispute, Marrandino kicked the screen door to the Bowers house, and Natalie responded by slamming shut the inner door. Vargas then grabbed Marrandino by the arm, and the two began to walk away. Appellant, however, emerged from his home carrying a shotgun and followed them. When he overtook them, he put the shotgun to Marrandino’s abdomen and fired, causing her to suffer serious bodily injuries. Appellant thereafter ran into his house, and Vargas responded in rage by throwing a cinder block through appellant’s window.

After being summoned by neighbors, police arrived and began searching for appellant. During the course of their search, they entered appellant’s house, where they were unable to find either appellant or the gun which had been used to shoot Marrandino. Appellant was later found hiding on the third floor of an abandoned house located next door to his home. When he saw the police coming, appellant exclaimed that “The mother f...ing Puerto Rican threw a brick through my window. If I was ten years younger, I would have kicked his ass.” Appellant also remarked that his wife was dying of cancer. Officer McDevitt helped appellant up, placed him in handcuffs, and asked him several times where the gun was. At first, appellant refused to answer, but eventually he relented and told police that the gun was in the abandoned house. It was thereafter found where appellant had stated.

At trial, appellant presented in defense the testimony of a psychiatrist, who opined that appellant was suffering from grief and depression over the terminal illness of his wife and that, at the time of the shooting, his perception and cognition were adversely affected. The witness opined that because of depression appellant had been unable to perceive the wrongfulness of his shooting of Marrandino. This was so, he said, despite appellant’s realization that his conduct was wrongful immediately following the shooting, when appellant hid in the abandoned house. In response, the Commonwealth presented its own expert psychiatric witness who said that, although appellant may have been depressed over his wife’s illness, he was generally intelligent and mentally well and was not, at the time of the shooting, laboring under any mental defect or illness. The jury was thereafter instructed on both the insanity defense and the possibility of a verdict of guilty but mentally ill. Both alternatives were rejected by the jury, which found appellant guilty as charged.

Appellant contends that the statements which he made in response to Officer McDevitt’s inquiries about the location of the gun should have been suppressed because the inquiries were not preceded by Miranda warnings. The trial court determined post-trial, however, that appellant’s suppression motion had been properly denied because appellant had not been in police custody at the time of the relevant police inquiries and, as such, Miranda warnings were unnecessary. In its appellate brief, the Commonwealth does not pursue an argument that appellant was not in police custody, but argues, rather, that appellant’s statements were admissible under the holding of the United States Supreme Court in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), which created a public safety exception to the requirements of Miranda.

In reviewing the trial court’s denial of appellant’s suppression motion, we must

‘determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).’

Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989), quoting Commonwealth v. Chamberlain, 332 Pa.Super. 108, 112, 480 A.2d 1209, 1211 (1984). See also: Commonwealth v. Kichline, 468 Pa. 265, 280-281, 361 A.2d 282, 290 (1976); Commonwealth v. Stark, 363 Pa.Super. 356, 365, 526 A.2d 383, 388 (1987). We will also affirm the decision of the suppression court “if it can be sustained for any reason whatsoever, even if the lower court offered an erroneous reason to support its action.” Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 309-310, 422 A.2d 1126, 1131 (1980). See: Commonwealth v. Shaw, 494 Pa. 364, 368 & n. 1, 431 A.2d 897, 899 & n. 1 (1981); Commonwealth v. Nelson, 320 Pa.Super. 488, 493-494, 467 A.2d 638, 641 (1983).

At the suppression hearing, Officer McDevitt described the sequence of events which occurred after appellant had been discovered behind a large drum in the abandoned house. He said:

I just pulled out and pointed my gun and I said “John, I want to see your hands stand up.” At which time he didn’t make any movement and I screamed, I said “John, stand up.”
Q Did he say anything?
A At this time no. He just put his hands up like this. Then he had looked up at me. His head came over the drum.
Q Indicating for the record the officer raised both hands up to about neck level.
A What I could see were his 2 hands and could I see his head over the drum, but I couldn’t see the rest of him.
Q Is the person you saw here today?
A Yes. Sitting over there in blue.
MR. FREED: He indicated the defendant John Bowers seated next to counsel.
BY MR. FREED:
Q What happened next?
A Well, he brought his hands up and I said “Don’t move your hands. I want to see your hands.”
I don’t know where the weapon is yet.
His hands go up like this. And as I go forward towards him he went like this, back down again.
Q Indicating a falling forward motion.
A Right. Just dropping his arms, because he was behind the drums.
Q What did you do at that time?
A I thought he was going for something and I almost shot the man, which I didn’t like, but my hand was going one way and my body was backing down the steps going another.
I am trying to tell myself don’t shoot.
He screamed something to the effect about “I got a bad wheel. I can’t get up.”
Q What was that?
A “I got a bad wheel. I can’t get up.” I said “John, I want to see your hands. Let me see your hands.”
So somehow he got his hands up again. Officer Pergolini was behind me.
I said, “John, let me see your hands. Don’t move.”
He started to—he was almost crying, or he was crying. He started saying “Don’t beat me. Don’t beat me.” I am saying, “John, just calm down. Nobody’s going to beat you. I want to see your hands.”
With that he started to make some other statements to me.
Q What were they?
A He said something to the effect “that Puerto Rican mother fucker. He threw a brick through my window. If I was ten years younger I would have kicked his ass.”
And then he was talking—-he was crying. He was talking that his wife was dying. She had cancer. She was suppose to die the next day.
Q All right. Where were you when he made these statements about the Puerto Rican?
A I am still in the stairwell. I am trying to get to him. All I want to do is I am trying to get around him so I can see if there is a weapon or something behind these drums.
So I got around to him and I handed Officer Pergolini my gun, because he couldn’t get up. I bent down and I didn’t want to bend towards him with the gun so I bent down and I tried to help him up.
We got him up, or I got him up. Then once he could stand a little bit, I guess feeling came back in the leg or whatever.
Q Was he handcuffed?
A Not yet. No.
Q At what point was he handcuffed?
A A little after.
I remember he was making some other statements. I don’t really recall exactly what all that was said.
Q Anything else that you can recall that he was saying at that time before he was handcuffed?
A (Pause)
Q If you can you can.
A I can’t right now.
Q Now, were you able to get him on his feet?
A Yes. I finally got him up.
Q At this point did you know where the weapon was?
A No I didn’t.
Q What if anything did you ask him about that?
A I asked him, “John, where is the gun?” He said to me “I can’t talk to you, your’re [sic] the cops.”
I said, “John, I want to know where the gun is. I don’t want it laying around for a kid to pick it up. Where is the gun.”
He said, “I can’t talk to you, your’re [sic] the cops.”
At this time I tried to cuff him. He’s a pretty big guy. His hands are big. When I got his arms behind him to put the cuffs on him the skin actually started to break on his wrists. So I waited for my supervisor to get up there and I said to my supervisor “Can I move the cuffs to the front,” because he was visibly limping on the leg. We would have never got him down the stairways with the cuffs behind him.
Q What did you do?
A We put the cuffs in the front so we could direct him down the steps.
Q Did you do that at that time?
A Yes. At that time. That was what we did. He was just upset. He was talking about his wife dying.
Q What was done with the defendant at that time?
A We took him back to our patrol wagon. Myself and my partner.
Q Did you yourself recover a weapon?
A No I didn’t. I asked John again I said, “John, where is the weapon? I don’t want the weapon laying around. Where is it?”
He said, “Well, your’re [sic] the one who arrested me so if you find it you can have the gun, it’s an antique.”
I said, “I don’t want the gun. I want to know where it’s at. Is it in the old house or in the new house? Tell me am I hot or cold?”
He said, “It’s in the old house,” at which time I relayed the information down to the sergeant. I said, “the weapon is in the old house.”
Here when we’d gone through the window and went through the back door it was right up against the wall. I didn’t even see it. I completely missed it.
Q Was the weapon subsequently recovered?
A Yes.
Q Who recovered it, if you know?
A Officer Long.
Q Did you see a weapon?
A Yes.
Q What did you see?
A It was a shotgun, I think.
Q All right.
At the time the defendant said to you “I can’t get up, I have a bad wheel,” had you asked him any questions?
A No.
Q At the time he said “that Puerto Rican mother fucker if I was ten years younger I would have kicked his ass,” had you asked him any questions?
A No.
Q At the time he told you his wife [was] dying, or words to that effect, had you asked him any questions?
A No. All I said to him is “I want to see your hands.”
I wanted to see his hands.
Q At the time he wouldn’t tell you where the gun was had you asked him questions about the gun?
A I said “Where is the gun” when I’d gotten him up.
Q Why were you interested in finding the gun?
A I wanted to know where it was. I didn’t want him going for it, or somebody else. I wasn’t sure exactly what had happened here.

N.T. 10/3/88 at pp. 16-21.

From this testimony, it cannot plausibly be argued that appellant was not in custody at the time he was asked about the location of the gun. A suspect is subjected to custodial police interrogation when “he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation.” Commonwealth v. Chacko, 500 Pa. 571, 577, 459 A.2d 311, 314 (1983). See also: Commonwealth v. Gonzalez, 519 Pa. 116, 124, 546 A.2d 26, 29 (1988); Commonwealth v. Toanone, 381 Pa.Super. 336, 347, 553 A.2d 998, 1003 (1989). Here, upon discovering appellant’s hiding place, the police approached him with guns drawn, ordered him to raise his hands above his head, placed him in handcuffs and took him to a patrol wagon. Under these circumstances, appellant was clearly in police custody.

Normally the fact that a suspect is in custody will require that Miranda warnings be given to the suspect prior to any police questioning. However, in New York v. Quarles, supra, the United States Supreme Court held that in certain situations the requirements of Miranda will be excused where police ask questions to ensure the public safety and not to elicit incriminating responses. The facts before the Supreme Court in Quarles were that a report had been made to police that a suspected rapist, who reportedly was armed, had fled into a supermarket. Upon apprehending the suspect in the market, the police found that he was wearing a shoulder holster, but did not have a gun in his possession. A police officer asked the suspect where the gun was, and the suspect responded that “the gun is over there.” Both the suspect’s statement and the gun were suppressed because of the officer’s failure to recite Miranda warnings to the suspect prior to inquiring about the location of the gun. On appeal, the United States Supreme Court determined that the police officer’s inquiry about the location of the gun was justified by overriding considerations of public safety. Therefore, the suppression order was reversed.

The rationale underlying the creation of the public safety exception to Miranda was explained at length by the Supreme Court as follows:

We hold that on these facts there is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer. Undoubtedly most police officers, if placed in Officer Kraft’s position, would act out of a host of different, instinctive, and largely unverifiable motives-—their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect.
Whatever the motivation of individual officers in such a situation, we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. The Miranda decision was based in large part on this Court’s view that the warnings which it required police to give to suspects in custody would reduce the likelihood that the suspects would fall victim to constitutionally impermissible practices of police interrogation in the presumptively coercive environment of the station house____
The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.
In such a situation, if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles’ position might well be deterred from responding. Procedural safeguards which deter a suspect from responding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege; when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear that cost. Here, had Miranda warnings deterred Quarles from responding to Officer Kraft’s question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles. Officer Kraft needed an answer to his question not simply to make his case against Quarles but to insure that further danger to the public did not result from the concealment of the gun in a public area.
We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.
In recognizing a narrow exception to the Miranda rule in this case, we acknowledge that to some degree we lessen the desirable clarity of that rule---- But as we have pointed out, we believe that the exception which we recognize today lessens the necessity of that on-the-scene balancing process. The exception will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it. We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.
The facts of this case clearly demonstrate that distinction and an officer’s ability to recognize it. Officer Kraft asked only the question necessary to locate the missing gun before advising respondent of his rights. It was only after securing the loaded revolver and giving the warnings that he continued with investigatory questions about the ownership and place of purchase of the gun. The exception which we recognize today, far from complicating the thought processes and the on-the-scene judgments of police officers, will simply free them to follow their legitimate instincts when confronting situations presenting a danger to the public safety.

New York v. Quarles, supra, 467 U.S. at 655-659, 104 S.Ct. at 2631-2633, 81 L.Ed.2d at 557-559 (citations and footnotes omitted). See also: Commonwealth v. Logan, 519 Pa. 607, 620-621 & n. 3, 549 A.2d 531, 538 & n. 3 (1988).

Instantly, appellant asserts that the public safety exception created in Quarles is inapplicable because, at the time Officer McDevitt asked about the location of the gun, appellant had already been handcuffed and no longer posed a danger. Appellant also asserts that there was no danger to the public because the police could easily have sealed off both his house and the abandoned house next door while they searched for the gun.

We are unpersuaded by appellant’s arguments. The suspect in Quarles had also been handcuffed at the time of the police inquiry and, presumably, the police in Quarles could have evacuated the supermarket while searching for the suspect’s gun. In the instant case, the police were aware that appellant had just shot a young woman; and when they arrived at the scene of the shooting, they observed the presence of appellant’s two granddaughters and their friend in appellant’s house. When the police could not find appellant in his own house, they proceeded to search the abandoned house next door. There they found appellant, but did not find his gun. Under these circumstances, the police, in the interest of public safety, could properly act promptly to ascertain the location of the gun without first informing appellant of his Miranda rights. Until found, that gun presented a threat not only to appellant’s grandchildren, but also to any other children who unwittingly might have come upon the gun after venturing into the abandoned house. Therefore, appellant’s responses to police inquiries regarding the gun’s location were not subject to suppression and were properly admitted into evidence at trial.

During cross-examination of Officer McDevitt, the defense introduced into evidence a police incident report which had been prepared by McDevitt shortly after the shooting. This report stated in part that the victim “was shot in [the] chest by [appellant] after a cinder block was throne [sic] thru his window by Thomas Vargas____” On redirect examination, Officer McDevitt said that the information in his report had come from appellant. This prompted a defense motion for mistrial on the grounds that such a statement by appellant, detailing the chronology of events, had not been disclosed to the defense via pre-trial discovery. The motion was denied by the trial court. On appeal, appellant continues to argue that the Commonwealth failed to disclose the existence of a statement by him that he had shot the victim in retaliation for a brick being thrown through his window. He further contends that he was prejudiced by the statement because all other evidence in the case was that the shooting had occurred prior to the brick’s being thrown through his window. He argues that proper disclosure of his statement would have altered defense strategy at trial. This argument is circuitous; it is also unavailing. It does not establish a basis for granting a new trial.

Officer McDevitt did not testify that his report had been based on any particular statement by appellant. It appears to have been premised upon appellant’s spontaneous remark that “The mother f...ing Puerto Rican threw a brick through my window.” This statement, in fact, had been disclosed by the Commonwealth during pre-trial discovery. The Commonwealth suggests, and we agree, that it was from this statement that McDevitt concluded that appellant had shot the victim in retaliation for the brick being thrown through his window. McDevitt further stated on redirect examination that “The only version I heard was what Mr. Bowers said to me, that he had thrown a brick through his window that is why I wrote it that way.” Because the substance of appellant’s spontaneous remark had been disclosed to the defense in pre-trial discovery—the incident report had also been disclosed—it seems clear that the Commonwealth did not intentionally or unfairly surprise the defense at trial.

A second reason for rejecting appellant’s argument is that it was the defense which chose to introduce the incident report and, by doing so, opened the door to a subsequent inquiry by the Commonwealth regarding the source of the information contained therein. Thirdly, both Vargas and another eyewitness testified at trial that the shooting had preceded the brick’s being thrown through appellant’s window, and the prosecuting attorney argued this sequence of events to the jury in both opening and closing statements. Therefore, it is not likely that McDevitt’s testimony on redirect examination had any significant impact upon the outcome of the trial. Appellant admitted the shooting, but claimed to have been legally insane at the time. In our view, whether the brick was thrown through his window before or after the shooting did not adversely impact appellant’s insanity defense. As such, there was no basis for the court to declare a mistrial, and the defense motion was properly denied.

“In reviewing jury instructions to determine whether reversible error has been committed by a trial court, we consider the charge as a whole. Error will not be predicated on isolated excerpts. Rather, it is the general effect of the charge that controls.” Commonwealth v. Myers, 376 Pa.Super. 41, 50, 545 A.2d 309, 314 (1988). See also: Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983), cert. denied, 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986) ; Commonwealth v. Riggins, 374 Pa.Super. 243, 253, 542 A.2d 1004, 1009 (1988). “Even if the court erred when it instructed the jury, we will reverse only if the error prejudiced the appellant.” Commonwealth v. Klinger, 369 Pa.Super. 526, 540, 535 A.2d 1060, 1066 (1987). See also: Commonwealth v. Riggins, supra. Moreover, “[t]he trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration.” Commonwealth v. Prosdocimo, 525 Pa. 147,-, 578 A.2d 1273, 1274 (1990). See also: Commonwealth v. LaMassa, 367 Pa.Super. 54, 58, 532 A.2d 450, 452 (1987) ; Commonwealth v. Cimorose, 330 Pa.Super. 1, 10, 478 A.2d 1318, 1323 (1984).

Instantly, the trial court extensively instructed the jury on the defense of legal insanity and on a verdict of guilty but mentally ill. The court’s instruction on these concepts, in relevant part, was as follows:

Because the defendant has asserted an insanity defense you’ll have to consider four possible verdicts.
In addition to guilty and not guilty, which are available verdicts in any criminal case, you’ll have to think about the special alternatives of not guilty by reason of legal insanity, and of guilty but mentally ill.
If you keep in mind why the law permits these two special verdicts it may help you understand my subsequent instructions.
The verdict of not guilty by reason of legal insanity labels a defendant as a sick person rather than a bad person. It signifies that in the eyes of the law that person, because of mental abnormality at the time of the crime, does not deserve to be blamed and treated as a criminal for what he did.
The verdict of guilty but mentally ill labels a defendant as both bad and sick. It means that in the law’s eyes that person at the time of the crime was not so mentally abnormal as to be relieved from blame and criminal punishment for what he did, but that he was abnormal enough to make a prime candidate for special therapeutic treatment.
Legal insanity which exists at the time of an alleged crime is a complete defense to that crime. The defendant has the burden of proving an insanity defense by a preponderance of the evidence as explained to you earlier. That is by greater weight of the evidence.
If the defense is proven the defendant is entitled to a verdict of not guilty by reason of legal insanity.
The term “insanity” has a special meaning in the criminal law.
A person whom medical experts would diagnose as mentally disordered or whom a layman would call crazy may not be insane when judged by the legal test.
The test or the definition of legal insanity is this:
A person is legally insane if at the time of committing an alleged crime he is laboring under such a defect of reason from disease of the mind as not to know the nature and quali[t]y of the act he is doing, or, if he does know the nature and quality of the act he does not know that what he is doing is wrong.
Stated more simply, a person is legally insane if at the time of committing an alleged crime he is, as a result of mental disease or defect, either incapable of knowing what he is doing, or if he does know what he is doing, is incapable of judging that it is wrong.
The term “mental disease or defect” in this test means a disease or infirmity of the mind as distinguished from a mere fault of character, temperament or social adjustment.
Guilty but mentally ill becomes a possible verdict when a defendant offers but fails to prove a legal insanity defense.
A jury may return such a verdict when it finds beyond a reasonable doubt that the defendant committed the crime alleged and that the defendant, although the jury did not find him legally insane, was mentally ill at the time of the crime.
The term “mentally ill” is another term with a special meaning.
The definition or test of mental illness for our purposes is this:
A person is mentally ill if he at the time of an alleged crime and as a result of mental disease or defect lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.
Comparing the definitions of legal insanity and mental illness, we can see that they both require a mental disease or defect which is something more than faulty character, temperament or social adjustment.
Their definitions differ, however, with regard to the incapacitating effect necessary for legal insanity on the one hand or mental illness on the other.
Legal insanity requires that the defendant be incapable of knowing what he is doing or judging its wrongfulness.
Mental illness requires only that the defendant lack substantial capacity either to appreciate the wrongfulness of what he was doing, or to obey the law.
Loosely speaking, mental illness is the broader term. It covers a greater range of abnormal conditions than legal insanity.
A final difference lies in the degree of proof.
Legal insanity must be proven by a preponderance of the evidence, while mental illness must be proven beyond a reasonable doubt.
To sum up. You have four alternative verdicts to think about. Two are the ordinary verdicts of guilty and not guilty. The other two are the special verdicts of not guilty by reason of legal insanity, and guilty but mentally ill.
In order to find the defendant not guilty by reason of legal insanity you must be satisfied by a preponderance of the evidence first that at the time of the killing John Bowers the defendant had a mental disease or defect.
And, second, that as a result of that disease or defect was either incapable of knowing what he was doing, or if he did know what he was doing, was incapable of judging that it was wrong.
In order to find the defendant guilty but mentally ill you must be satisfied beyond a reasonable doubt, first, that the defendant committed the alleged crime.
Second, that although you did not find him legally insane, the defendant at the time of the crime had a mental disease or a defect.
And, third, that as a result of that disease or defect the defendant lacked substantial capacity either to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law.

After careful review, we conclude that the court’s instructions accurately reflected the statutory definition of legal insanity, 18 Pa.C.S. § 315, and the law pertaining to a verdict of guilty but mentally ill, 18 Pa.C.S. § 314. The trial court went to great lengths to explain these concepts in clear and concise language and to inform the jury concerning the subtle distinctions which separated a verdict of not guilty by reason of insanity and a verdict of guilty but mentally ill. In Commonwealth v. Trill, 374 Pa.Super. 549, 543 A.2d 1106 (1988), the Superior Court rejected an argument that the statutory definitions of “mental illness” and “legal insanity” were so vague and confusing as to violate due process. Judge Beck, while writing in concurrence, said the following, which we here adopt.

I agree that the statutory definitions of “mentally ill” and “legally insane” are somewhat similar. Both include a person whose understanding of the wrongfulness of his conduct is impaired. Closer examination, however, yields the conclusion that the two definitions refer to differing degrees of impaired understanding. They are therefore sufficiently different to withstand attack on the ground that the jury cannot make a principled application of the statutory definitions.
“Mentally ill” and “legally insane,” while both referring to conditions of mental disturbance, describe two distinct points along the continuum of mental conditions.
The difference between mental illness and legal insanity with regard to comprehension of the wrongfulness of one’s conduct is a matter of the degree of one’s impairment. The mentally ill defendant in a murder case may exhibit only a limited understanding that killing is generally agreed to be wrong; the legally insane person has no idea whatsoever that killing is considered to be wrong. I find this distinction to be sufficient to permit a jury to differentiate between mental illness and legal insanity, and therefore would uphold the constitutionality of the guilty but mentally ill verdict.

Id., 374 Pa.Superior Ct. at 600-601, 543 A.2d at 1131. The trial court’s instructions in the instant case fully and accurately apprised the jury of the difference between a verdict of not guilty by reason of insanity and guilty but mentally ill. There was no error.

The judgment of sentence is affirmed.

McEWEN, J., did not participate in the consideration of or decision of this appeal.

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


author: POPOVICH, Judge.

text:
    583 A.2d 1175
    COMMONWEALTH of Pennsylvania, Appellant, v. Timothy FLAHERTY, Appellee.
    Superior Court of Pennsylvania.
    Submitted Aug. 22, 1990.
    Filed Dec. 14, 1990.
    Petition for Allowance of Appeal Denied May 13, 1991.

      Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellant.

      Bruce A. Carsia, Pittsburgh, for appellee.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   POPOVICH, Judge.

This is an appeal from the order of the Court of Common Pleas, Allegheny County, suppressing evidence of drugs seized from appellee’s automobile. We affirm.

On appeal, the Commonwealth asserts that the suppression court erred in finding that the magistrate had failed to act pursuant to probable cause when issuing the search warrant for appellee’s automobile. As we have resolved to affirm the decision below on grounds that probable cause was clearly wanting, we must also reach the second argument offered by the Commonwealth, to-wit: whether this search warrant, if determined to be invalid and unsubstantiated by probable cause, might properly have been relied upon in “good faith” by the executing officers.

The sole evidence in support of the warrant was an affidavit of probable cause signed by the detective and based on communications made to him by an undisclosed informant. The affidavit of probable cause reads as follows:

The affiants recieved [sic] information form [sic] a relaible [sic], confidential informant, who has been proven reliable in the past, by supplying information that lead to the arrest of Kim Allen for possession of marajuana [sic] with the intent to deliver in 1988, this case is stikk [sic] pending in the court system. This informant has alos [sic] supplied other information that has been proven reliable and true, but as of this time has led [sic] to an arrest or seizure on it’s [sic] own information
The informant states that the actor, Tim Flaherty, is selling percocets and doldophine [sic] from his apartment at 5680 Forward Ave. Apt. 201. The informant has been to the actor’s apartment within the past forty-eight hours and observed the actors [sic] selling quantities of both percocets, and dolophines, and taking orders for others over the telephone. The informant over heard [sic] conversation and was later told by the actor that his buisness [sic] is so good he bough [sic] a new Cadillac and will deliver the pill to special customers using his car.
This informant supplied the license plate number for this vehilce [sic], thta [sic] being Pa. Reg TPF-1, which was checked by the affiants and found to be registered ton the actor at the Forward Ave. address. This informant was also able to give a telephone number to use to order any percocets that the informant might need, or to use in case the informant had a customer that wanted to come to the apartment, the informant was to call first and make sure that the customer was not a narc., the telephone number given is 244-2929.
The actor was observed by the affiants driving the vehicle describbed [sic] in this warrant and observed the registration number to be that supplied by the informant, noting that it appeared to be new and the color is silver. The telephone number was checked and the subscribber [sic] information is not listed.
The actor has a prior conviction for possession, and other drug law violations in 1987 and is on probation for the possession of both percocets and dolophiones [sic].

(R.R. at 5a).

A warrant to search appellee’s person, his residence and his automobile was issued pursuant to this statement of probable cause. Soon thereafter, police detectives approached appellee as he was washing the aforementioned automobile and executed the warrant. A search of the automobile revealed a jacket on the rear seat, which, upon closer examination, was found to contain an envelope filled with percocets and dolophines. Appellee was immediately placed under arrest and given his Miranda warnings. Next, and upon learning that the detectives intended to search his house, appellee requested to accompany them in their search. The request was allowed, and en route appellee made an incriminating statement to the effect that he obtained the pills from a man at the airport. Both the physical evidence seized from the ear and the statement were suppressed, the latter following naturally as the “fruit” of a search unsupported by probable cause. See Wong Sun v. United States, 871 U.S. 471, 88 S.Ct. 407, 9 L.Ed.2d 441 (1968) (verbal evidence no less a “fruit” than tangible evidence).

The Commonwealth accurately interprets this jurisdiction’s test of probable cause as one summoning the magistrate to approach the warrant application in a common sense, nontechnical, ungrudging and positive manner. See Commonwealth v. Jones, 506 Pa. 262, 484 A.2d 1888, 1887 (1984); Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981). To this end, our Supreme Court has more recently adopted the “totality of the circumstances” approach for assessing probable cause. See Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). As a result, the Pennsylvania constitutional standard essentially reflects the federal standard announced in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1988). Important, however, is to recognize that Gates and Gray did no more than loosen the analytical straightjaeket which had evolved through an overly mechanistic application of the two-prong Aguilar-Spinelli test. The dual “basis of knowledge” and “veracity” prongs of Aguilar-Spinelli&re still very much a part of probable cause analysis. What has changed is the manner through which the magistrate evaluates the affidavit of probable cause in reference to the old two-prong test:

The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, that there is a fair probability that contraband of evidence of a crime will be found, in a particular place.

Gray, 509 Pa. at 484, 503 A.2d at 925 (emphasis added) (quoting Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332).

In the instant case, there is no contention over the informant’s “veracity,”; therefore, we may assume, without deciding, that the issuing authority appropriately countenanced the statements made by the informant as set forth in the warrant application. Rather, the sole area of disagreement concerns the basis of the informant’s knowledge. Specifically, whether the affidavit set forth sufficient cause to believe: (1) that drugs might be found in appellee’s automobile; and (2) that this belief existed at the time the warrant issued. The satisfaction of each prong serves as a prerequisite to a finding of probable cause. Accordingly, we may limit our review to the second prong since it is here that we find the affidavit of probable cause clearly deficient.

That probable cause must exist at the time a warrant issues is firmly established in this jurisdiction. The case of Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973) enlightens the inquiry. In Conner, a warrant was issued to search defendant’s automobile for a weapon allegedly seen by police informants therein. Absent from the affidavit of probable cause was:

a time-frame upon which to ascertain when the affiant gained his information from his informants, when the informants themselves obtained the information they allegedly had, and if probable cause presently existed to believe, that[,] at the time the warrant was issued, appellant was keeping a firearm in his automobile.

Id., 452 Pa. at 339-40, 305 A.2d at 345 (emphasis in original); see also Commonwealth v. Kalinowski, 303 Pa.Super. 354, 449 A.2d 725 (1882) (probable cause lacking where affiant fails to supply date when informant allegedly gained the information supplied); cf. Commonwealth v. Edmunds, 373 Pa.Super. 384, 541 A.2d 368 (1988) (good faith exception to probable cause found to save otherwise invalid warrant due to absence of the date of informant’s observations).

In the instant case, the only evidence tending to implicate defendant’s car was the statement made by the defendant that he “will deliver the pill[s] to special customers using his car.” The informant made ho indication that he had seen drugs in appellee’s automobile, nor had he any reason to believe that drugs were present in the car at the time of his statement to police. Following the logic of Conner, absent from this declaration is any reference to a time frame from which to anticipate drugs being delivered in appellee’s automobile. The particular frequency of such deliveries in the past, as well as the probability that such might continue at any particular moment in the future, remains wholly a mystery. Were such deliveries made by appellee hourly, daily, weekly, monthly, or at some other interval of time? “Any selection of time on our part would be purely conjectural [—] ... [s]o too must have been the magistrate’s determination.” Id. (quoting Commonwealth v. Simmons, 450 Pa. 624, 629-30, 301 A.2d 819, 822 (1973)). The conclusion follows necessarily that, at the time the magistrate was asked to issue the search warrant, there could be no probable cause to believe that drugs were present in appellee’s automobile.

The Commonwealth suggests that we consider case precedent applying the doctrines of “staleness” and “anticipatory search warrants.” These references are misplaced. Staleness, as the name suggests, presupposes that at an earlier point in time the information was “fresh,” i.e., probable cause once existed. That the Commonwealth misconceives this fundamental element is manifest by their selection of Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981), in support of their position. In Stamps, a police informant indicated, inter alia, that “in the past ten days” he had observed ten bundles of heroin in defendant’s apartment, and, within the same period, witnessed defendant “leave his apartment with three bundles of heroin for sale to two other people.” Id., 493 Pa. at 538 & n.12, 427 A.2d at 144-45 & n.12. This, taken together with other information supplied by the informant, suggested that defendant was a volume dealer and persuaded the court that “[defendant] was engaged in a continuing course of illegal conduct^] and that narcotic drugs were likely to be present in his apartment on the day the warrant was issued.” Id., 493 Pa. at 538, 427 A.2d at 145 (emphasis added).

Clearly, the Stamps Court relied on the informant’s personal observations—their date and frequency—to infer a continuing course of conduct such that the circumstances witnessed by the informant might still have cause to exist. Equally clear is the absence of the same in the instant case. Here, we have no indication in the affidavit from which to establish conduct by the defendant, with respect to deliveries made using his automobile, marked with any regularity. Where there has been no initial showing of probable cause to believe that the items to be searched for and seized had been at a particular location at a particular time, then common sense points in only one direction: that it would be utter speculation to suppose they might be there at a certain later date. See Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 445 A.2d 1214 (1982) (mere suspicion will never support a finding of probable cause).

The Commonwealth also erroneously proffers Commonwealth v. Reviera, 387 Pa.Super. 196, 563 A.2d 1252 (1989), to support its position. Reviera approved the use of anticipatory search warrants in Pennsylvania when issued under the appropriate circumstances. The facts of Reviera were significant in that there existed reliable information to the effect that drugs were expected to arrive at a particular location, on a particular day, at a particular time. Id., 387 Pa.Superior Ct. at 204-08, 563 A.2d at 1256-57. As we have already indicated above, the instant affidavit for probable cause was wholly lacking in these respects, therefore rendering Reviera easily distinguishable on its facts.

In sum, we are persuaded that the information provided in the warrant application is inadequate to support an independent determination by a neutral magistrate that drugs probably would be found in appellee’s automobile at the time the warrant issued.

Having determined that the warrant to search appellee’s car was issued without probable cause, we turn to the issue of whether the evidence is nonetheless admissible under the “good faith” exception to the exclusionary rule as articulated by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

First, we note that in Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989), the Supreme Court of Pennsylvania recognized that Article 1, § 8 of the Pennsylvania Constitution “may be employed to guard individual privacy rights against unreasonable searches and seizures more zealously than its federal counterpart.” See also, Commonwealth v. Haggerty, 388 Pa.Super. 67, 72, 564 A.2d 1269, 1272 (1989) (concurring opinion by Cavanaugh, J.) allocatur denied 525 Pa. 577, 575 A.2d 109 (1990). Our high court, in Melilli, also held that Pennsylvania does not yet recognize the “good faith” exception and left for another day and another set of facts the question of whether Pennsylvania will fully adopt the “good faith” exception. Nevertheless, the Superior Court of Pennsylvania has applied a limited “good faith” exception on several occasions. See Haggerty, 564 A.2d at 1272; Commonwealth v. Edmunds, 373 Pa.Super. 384, 541 A.2d 368 (1988), allocatur granted, 520 Pa. 595, 552 A.2d 250 (1988); Commonwealth v. Morris, 368 Pa.Super. 237, 533 A.2d 1042 (1987), allocatur denied, 520 Pa. 596, 552 A.2d 251 (1988). In Haggerty, Edmunds and Morris, the “good faith” exception was applied and evidence was admitted, despite the fact that this Court determined the respective search warrants facially lacked probable cause. However, in all three cases, facts sufficient to establish probable cause were known to the respective officers and issuing authorities but were inadvertently omitted from the affidavits.

Applying the limited “good faith” exception enunciated in Haggerty, Edmunds and Morris, we conclude that the lower court correctly suppressed the evidence in question. Instantly, facts sufficient to establish probable cause were known by neither the issuing authority nor the police. Neither knew precisely when, if ever, drugs were present in appellee’s automobile. Neither knew when, if ever, appellee might use his car to deliver drugs to “special customers”. Significantly, neither the police nor their informant had ever witnessed appellee use his car to distribute drugs.

As previously determined, the present affidavit was insufficient to establish probable cause for issuance of a warrant to search appellee’s car. Accordingly, we will not expand application of Pennsylvania’s limited “good faith” exception to include cases, such as that before us, where the affidavit is insufficient to establish probable cause and neither the issuing authority nor the police know of additional facts, not of record, which would be sufficient to create probable cause.

Order affirmed.

      . Appeal from a suppression order is a final order subject to this court’s jurisdiction once the Commonwealth certifies in good faith, as it has, that the suppression order terminates or substantially handicaps its prosecution. See, e.g., Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

      . Appellee also alleges a technical discrepancy between the areas listed to be searched on the application for search warrant and those areas listed on the final search warrant. See Pa.R.Crim.P. § 2006. "Each application for a search warrant ... shall: ... (c) Name or describe with particularity the person or place to be searched.” We need not address the merit of this, appellee’s technical sufficiency argument under Pa.R.Crim.P. § 2006(c), for a conclusion either way is clearly subordinate to our conclusion that the search warrant lacked probable cause pursuant to our constitutional commands. See Pa.Const. Art. I, section 8.

      . The Supreme Court in Aguilar interpreted the Fourth Amendment to the United States Constitution as requiring that:

        the magistrate must be informed [on the application for a search warrant] of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant ... was "credible” or his information “reliable."

        Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964) (emphasis added) (citation and footnote omitted).

      . Incidentally, appellee also does not challenge the reliability of the second layer of hearsay provided by appellee’s own statements that he will deliver the pills via his automobile. In passing, we take note that often times when a defendant, or an informant, makes a declaration against his or her penal interest, it can be found to support the statement’s reliability. See Commonwealth v. Mazzochetti, 299 Pa.Super 447, 445 A.2d 1214, 1218 (1982) (statement by defendant to informant that he had "a large amount” of marijuana was against penal interest and therefore reliable); see also Commonwealth v. Kaschik, 235 Pa.Super 388, 344 A.2d 519, 523 (1975); United States v. Streeter, 907 F.2d 781 (8th Cir.1990). ... In this respect, a defendant’s statement might be seen as supplanting the informant’s lack of personal observation of this fact. Therefore, we also credit as reliable, without deciding, appellee’s statement that he "will deliver the pill[s] to special customers using his automobile.”

      . Our cases have repeatedly emphasized the importance of there being enough information supplied by the informant “to enable the magistrate independently to judge the validity of the informant’s conclusion that [the items to be seized] were where he said they were.” Commonwealth v. Kline, 234 Pa.Super 12, 335 A.2d 361 (1975) (quoting Spinelli v. U.S., 393 U.S. 410, 413, 89 S.Ct. 584, 587, 21 L.Ed.2d 637); see also Commonwealth v. Kanouff, 315 Pa.Super. 392, 462 A.2d 251, 252 (1983) (for a search warrant to properly issue, the magistrate must be persuaded: (1) that the items sought are connected with criminal activity; and (2) that the items will be found in the place to be searched).

      . The oft-quoted passage for this proposition comes from the United States Supreme Court decision of Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932):
      "[I]t is manifest that the proof [necessary to establish probable cause] must be of facts so closely related to the time of the issue of the warrant so as to justify a finding of probable cause at that time.”

        Commonwealth v. Simmons, 450 Pa. 624, 629-30, 301 A.2d 819, 822 (1973) (quoting Sgro, 287 U.S. at 210, 53 S.Ct. at 140) (emphasis omitted).

      . The fact that it was appellee’s, rather than the informant’s statement which lacked any reference to time, is of no moment. Whether the magistrate is presented with single or double hearsay may go to the weight of the evidence, yet bears no relation to the overarching requirement that the affidavit of probable cause establish facts from which the issuing authority can make an independent determination as to whether probable cause presently exists. Had an informant personally observed defendant deliver drugs in his automobile, the issuing authority would further require information as to the date of this observation, and the frequency of like observations. Similarly, if the issuing authority herein is to rely on defendant’s own declarations as a substitute for the informant’s lack of personal observation, then the declaration must include some reference to when and how frequently the defendant delivered the drugs in his automobile.