author: PER CURIAM:

text:
    486 A.2d 1378
    James R. COLOSIMO, Individually and t/d/b/a Kinzua Korners and Safari Lounge v. PENNSYLVANIA ELECTRIC COMPANY, Appellant, v. Lamont E. EDEL and Frank Cardamone. Lamont E. EDEL and Sandra Kay Edel v. PENNSYLVANIA ELECTRIC COMPANY, Appellant, v. Lamont E. EDEL, James R. Colosimo and Frank Cardamone.
    Superior Court of Pennsylvania.
    Argued May 7, 1984.
    Filed Dec. 31, 1984.

      John M. McLaughlin, Erie, for appellant.
    Paul H. Titus, Assistant District Attorney, Pittsburgh, for appellees.
    Before SPAETH, President Judge, and CAVANAUGH, WIEAND, CIRILLO, MONTEMURO, POPOVICH and HOFFMAN, JJ.
   PER CURIAM:

The Court being equally divided, the Order of the Court of Common Pleas is AFFIRMED.

CIRILLO, J., filed an opinion in support of affirmance.

SPAETH, President Judge, filed an opinion in support of remand.

WIEAND, J., filed an opinion in support of reversal in which MONTEMURO, J. and POPOVICH, J., joined.

POPOVICH, J., filed an opinion in support of reversal.

OPINION IN SUPPORT OF AFFIRMANCE

CIRILLO, Judge:

On June 17, 1977, fire destroyed a restaurant owned by appellee James R. Colosimo, and occupied by appellees, LaMont E. Edel and Sandra K. Edel. The Edels and Mr. Colosimo filed separate suits against the appellant, the Pennsylvania Electric Company. Appellant then joined Frank Cardamone and Mr. Edel as additional defendants in both suits, and joined Mr. Colosimo as an additional defendant in the Edel suit. The cases were consolidated for trial which commenced on April 7, 1980.

Following a jury verdict in favor of defendant-appellant, the trial court granted appellees’ supplemental post-trial motions and entered an order for new trial. The trial court granted a new trial because undisclosed out-of-court communications occurred during the course of trial between the attorney for additional defendant Cardamone and one of the sitting jurors.

Sometime prior to the commencement of trial in this case, Jay Paul Kahle, Esquire, attorney for defendant Carda-mone, had been retained by Jay Chapman, Jr., to probate the estate of Mr. Chapman’s mother. This attorney-client relationship was made known to the court and to all counsel at the outset of trial. Neither the court nor the attorneys moved for a mistrial based on this disclosure, and Mr. Chapman was permitted to sit as a juror. However, contrary to the trial court’s express instruction, attorney Kahle communicated and conducted business with juror Chapman during the course of trial. Specifically, appellees’ counsel learned that on April 18, 1980, while trial was in progress, Chapman visited Kahle’s office to sign inventory and appraisal papers for his mother’s estate and to discuss other matters related to the estate. One of the purposes of this meeting was to expedite the filing of the estate papers in order to secure a 5% inheritance tax discount for Chapman. At this meeting Chapman was first made aware of Kahle’s legal fee. Also Chapman on that day wrote a check to Kahle for $1,990.54. The trial court granted appellees’ motion for new trial primarily on the basis of the appearance of impropriety created by this meeting.

On appeal, appellant admits that the out-of-court communications took place, but denies that a new trial was required because of them. Appellant maintains that the trial court abused its discretion in ordering a new trial without considering the effect of the contact between Cardamone’s attorney and the juror; that is, whether this out-of-court meeting in any way influenced the verdict.

We note that the decision to “grant or refuse a mistrial because of alleged improper conduct on the part of counsel is solely within the discretion of the trial judge.” Printed Terry Finishing v. City of Lebanon, 247 Pa.Super. 277, 299, 372 A.2d 460, 471 (1977). After consideration of pertinent concerns, we conclude that the trial court acted within its discretion.

In the leading Pennsylvania case on attorney-juror contacts, we stated the general rule that a trial court should grant a new trial if an attorney communicates with a juror during the course of trial and the harmlessness of such contact is not shown. Printed Terry, supra, 247 Pa.Superior Ct. at 299-300, 372 A.2d at 471. See also, Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892). Our disposition in Printed Terry suggests that before granting a new trial, the trial court must assess the prejudicial impact of the contact between the attorney and the sitting jury, and determine whether such contact influenced the verdict. However, we expressly reserved ruling on whether the trial court must always consider the effect of the contact, or whether some communications are so serious in nature that the appearance of impropriety alone may be sufficient to compel a new trial. We now have occasion to review this question.

In Printed Terry we recognized the fundamental impropriety of lawyer-juror communications during the course of trial, but noted that certain accidental and casual contacts were inevitable. We stated that where such unavoidable and momentary contacts occur “ ‘it is not required that [the parties] be curt or lacking in the customary amenities of social intercourse ... ’ ” Printed Terry, supra, 247 Pa.Super. at 299, 372 A.2d at 471, (quoting Pessin v. Kenneland Association, 298 F.Supp. 593, 599 (E.D.Ky. 1969)). Certainly a new trial is not warranted where an attorney acknowledges a juror in an elevator or says hello at a ball game. Where the contact is minimal and discreet, the trial court rightly should consider whether the juror has been influenced before granting a new trial. See Printed Terry, supra. Numerous jurisdictions have held that such insignificant contact is not ground for mistrial in the absence of prejudice. See e.g., Potts v. Krey, 362 S.W.2d 726 (Ky.1962); Safeway Trails, Inc. v. Smith, 222 Md. 206, 159 A.2d 823 (1960); Atwood v. Lever, 274 So.2d 146 (Miss. 1973); O’Berry v. Perry, 266 N.C. 77, 145 S.E.2d 321 (1965); Landes v. Faella, 106 R.I. 23, 255 A.2d 724 (1969). See generally, 62 A.L.R.2d 298 (1958).

However, we believe that a prejudice standard is not always appropriate. There are certain attorney-juror contacts which happen during trial, “which if permitted to stand would shake the confidence of laymen in the fairness of judicial proceedings.” Baker v. Ohio Ferro-Alloys Corp., 23 Ohio App.2d 25, 261 N.E.2d 157, 164 (1970); Omaha Bank, Etc. v. Siouxland Cattle Co-Op., 305 N.W.2d 458 (Iowa 1981). In such circumstances we must find reversible error regardless of a showing of actual prejudice. In cases of such gross impropriety, our concern is not with the contact’s potential influence on a discrete verdict; rather we seek to protect against the “confidence-shaking effect upon future cases, which would result from appellate disregard of such events.” Baker v. Ohio Ferro-Alloys Corp., supra, 23 Ohio App.2d 25, 261 N.E.2d at 164.

After all, trial by jury is among the unique and fundamental institutions of our democratic government. Mix v. North America Co., 209 Pa. 636, 59 A. 272 (1904); Alexis de Tocqueville, Democracy in America (1840). Therefore, it is imperative that we promote public confidence in our judicial system by vigilantly protecting the integrity of our jury system. “Trial by jury presupposes that the jury works in a controlled environment, untouched by any influence other than that properly permitted by the trial judge.” Hobson v. Wilson, supra. To safeguard zealously this controlled environment, we must see to it that “each juror enters a case impartial, and throughout trial remains uncontaminated by outside pressures.” Id.; Code of Professional Responsibility EC 7-29. We must take every “precaution against evil communication which may corrupt [the jury].” Mix v. North America Co., supra, 209 Pa. at 645, 59 A. at 274-75.

In the instant case, the contact between attorney Kahle and juror Chapman was not insignificant, and certainly far more substantial than the mere social amenity contemplated in Printed Terry. We agree with the trial court that the possible prejudicial effect on the verdict of the Kahle-Chapman business meeting is not especially relevant. Indeed, we subscribe to the trial court’s position that the appearance of impropriety here is alone sufficient to warrant a new trial. Both Chapman and Kahle were admonished by the court to cease out-of-court communication during the course of trial. In direct defiance of this caveat, Chapman and Kahle met to discuss business. Here, the fact that this meeting directly or indirectly resulted in a considerable tax savings to Chapman adds to the appearance of impropriety.

We simply cannot allow a sitting member of a jury (here, the jury foreman) to consult or conduct business with an attorney for one of the parties during the course of trial without permission of the court. Thus, we hold that where, as here, substantial undisclosed business is conducted between an attorney and a juror during trial, democratic principles compel a new trial. While we are not certain that Chapman, as juror, was in fact contaminated, the appearance of outside influence is inescapable.

Order affirmed.

OPINION IN SUPPORT OF REMAND

SPAETH, President Judge:

The issue in this case is whether a new trial should be granted as to the defendant, Pennsylvania Electric Company (PECO), where the attorney for the additional defendant, Cardamone, initiated a communication with a juror. In my view this issue cannot be resolved without findings of fact by the trial court. Since the trial court made no findings, I should remand for further proceedings.

This case is difficult because the trial court granted a new trial as to PECO despite the fact that PECO’s attorney did nothing wrong. I think, however, that we may dissolve this difficulty if we put it aside for the moment, and approach it step by step.

Suppose a case involving only two parties — plaintiff and defendant. If it appears that during the trial there was a communication between the defendant’s attorney and a juror, and if the jury finds for the defendant, is the plaintiff entitled to a new trial? In answering this question, the first inquiry should be, “What were the contents of the communication?”

In the very unusual case the contents of the communication will not be known. That was the case in Printed Terry Finishing Co. v. City of Lebanon, 247 Pa.Super. 277, 372 A.2d 460 (1977), because there, while the trial judge received testimony showing that there had been a communication, he refused to receive testimony regarding the contents of the communication. We held that in these circumstances a new trial was required. I agree with my colleagues that much that we said in Printed Terry Finishing Co. is relevant to our consideration here, but it was nevertheless dictum, and to decide this case we must look further.

Suppose then that we know the contents of the communication, and that they concerned the law suit. The question should be, “Who initiated the communication?” If the defendant’s attorney did, then in my opinion the plaintiff should be granted a new trial. The defendant’s attorney may argue that he did not intend to influence the jury by, or that anyway the jury was not influenced by, the communication, but I should regard those arguments as without merit. The attorney knew, or should have known, that his communication might influence the jury, and that in initiating the communication he was doing wrong. Code of Professional Responsibility, DR7-108(B)(1) (a lawyer connected with the trial of a case shall not communicate with or cause another to communicate with any member of the jury). He should not be permitted to try to gain a favorable verdict, by unprofessional conduct, and then when he does gain it, be heard to say that his unprofessional conduct was of no consequence. Those cases not requiring a new trial are distinguishable on their facts. See, e.g., Califor nia Fruit Exchange v. Henry, 89 F.Supp. 580 (W.D.Pa.) (attorney inquired of a juror about the jury’s verdict, but no new trial granted because jury had already agreed upon and sealed verdict), affd, on other grounds, 184 F.2d 517 (3d Cir.1950); Wise & Hanslip v. Bosley, 32 Iowa 34 (1871) (no new trial granted where defendant approached juror and asked “what he thought of the case, or if it was not a singular case” because evidence showed defendant did not remember person was a juror and that he promptly stopped talking upon learning person was juror); Paustenbaugh v. Ward Baking Co., 374 Pa. 418, 97 A.2d 816 (1953) (no new trial granted in a suit where only damages were being litigated where plaintiff’s wife complained to three jurors about her husband’s health and the jurors did not respond and reported the incident to the court and court cautioned the jurors not to say anything to the other jurors).

Suppose, however, that the defendant’s attorney did not initiate the communication. Perhaps, for example, a juror or a journalist or a tipstaff initiated an inquiry or made some observation about some aspect of the suit. In such a case the defendant’s attorney has done nothing wrong, and before deciding whether to grant the plaintiff a new trial the trial court should inquire further. If the court finds that the plaintiff was prejudiced, then a new trial should be awarded. For even though the defendant’s attorney, which is to say, the defendant, did nothing wrong, still, the plaintiff has because of the communication not had a fair trial. See Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892) (where bailiff conversed with jurors about defendant’s prior criminal record and where jurors were read editorial comments unfavorable to defendant from a newspaper, judgment reversed because these contacts were prejudicial to defendant); Lindsey v. Watts, 273 Ark. 478, 621 S.W.2d 679 (1981) (trial court properly denied motion for new trial where juror remarked to attorney that exhibit had not been shown to jury and attorney said that jury could take exhibits); Safeway Trails, Inc. v. Smith, 222 Md. 206, 159 A.2d 823 (1960) (where juror had a general conversation about suit with person not related to suit, court found conversation innocuous); Mix v. North American Co., 209 Pa. 636, 59 A. 272 (1904) (defendant entitled to new trial in part because third party discussed case with juror and attempted to influence the juror’s verdict); Brancato v. Kroger Co., 312 Pa.Super. 448, 458 A.2d 1377 (1983) (where juror questioned party about her physical condition and party replied she couldn’t discuss it, no proof of prejudice requiring a new trial).

Now suppose a case in which the communication did not concern the law suit. See, e.g., Happoldt v. Guardian Life Ins. Co., 90 Cal.App.2d 386, 203 P.2d 55 (1949) (juror talked with attorney, remarking that he looked like a motion picture actor and a “few bantering remarks were made”); Rudolph v. Gleason, 339 So.2d 298 (Fla.Dist.Ct.App.1976) (juror remarked to defendant in elevator that she was reluctant to give her age upon voir dire examination and defendant answered that it was the woman’s prerogative not to reveal her age); Sunset Acres Motel, Inc. v. Jacobs, 336 S.W.2d 473 (Mo.1960) (one juror talked with plaintiff's wife about juror’s small son and showed her pictures of the boy; another juror stopped and discussed weather and fishing with plaintiff and his wife); Gross v. Moore, 166 Pa.Super. 575, 73 A.2d 221 (1950) (adjuster for defendant insurance company talked with juror who was his niece about family matters); O’Berry v. Perry, 266 N.C. 77, 145 S.E.2d 321 (1965) (juror encountered plaintiff and witness and asked witness what office he was running for; all three walked to lunch together talking about fishing and corned herring); Schoenrock v. Eib, 75 S.D. 613, 71 N.W.2d 82 (1955) (in a wrongful death suit brought by plaintiff, jurors initiated conversation with defendant regarding farming conditions in Kansas, defendant’s home state, and South Dakota). Generally speaking, in such cases the courts have inquired as to the party’s or the party’s attorney’s intent, and whether the jury was influenced by the communication, without making clear the relationship of these inquiries. See Pessin v. Keeneland Association, 298 F.Supp. 593 (E.D.Ky.1969) (merely concluding that the contact did not influence the verdict and was not made with any improper design); Atwood v. Lever, 274 So.2d 146 (Miss.1973) (mistrial or new trial should not be granted unless the circumstances indicate some prejudice, wrongful intent, or unfairness); Shew v. Bailey, 37 Tenn.App. 40, 260 S.W.2d 362 (1951) (concluding that the contact did not influence the verdict and was not made with any improper design). See also California Fruit Exchange v. Henry, supra (stating rule that if the communication was not about the case and nothing done for purpose of influencing the mind of the jury, and that the communication had no influence on the verdict, then there is no ground to set aside verdict). I believe the trial court should proceed in the same way as in cases that involve communications that concern the law suit, with one difference. I do not believe that the fact that the defendant’s attorney initiated the communication should by itself require a new trial. For, given that the communication did not concern the law suit, it may be unfair to impute to the attorney an intention to influence the jury. The court should therefore inquire whether the defendant’s attorney did intend to influence the jury. For even though the communication did not concern the law suit, still, by engaging in it the defendant’s attorney may have intended to influence the jury, by indirection. If the court finds intent to influence the jury, then the plaintiff should be granted a new trial. If the court finds no intent, then it should inquire whether even so, the jury was influenced in the defendant’s favor. If it was, then the plaintiff should be granted a new trial. While the cases are not uniform, I believe this is the view of the better reasoned ones. See Gall v. New York and New Brunswick Auto Express Company, 132 N.J.L. 466, 40 A.2d 643 (1945) (new trial granted because plaintiff had attempted to gain advantage and even though success of this attempt not known); Baker v. Ohio Ferro-Alloys Corp., 23 Ohio App.2d 25, 261 N.E.2d 157 (1970) (new trial granted where attorney complimented defense witness on unrelated matter in presence of jurors; no specific prejudice need be shown). See also United States v. Harry Barfield Co., 359 F.2d 120 (5th Cir.1966) (where president of taxpayer corporation deliberately and intentionally engaged juror in conversation about family and business matters and although juror testified that he was not influenced by the contact, case must be reversed for a new trial); Pekar v. United States, 315 F.2d 319 (5th Cir.1963) (where Assistant United States Attorney sat down and engaged juror in long conversation relating to juror’s business, new trial necessary); State v. Jones, 363 Mo. 998, 255 S.W.2d 801 (1953) (judgment reversed where sheriff, who was a material witness against the state, related to juror his experience with some unspecified burglary); Noble v. McAllister Dairy Farms, Inc., 52 Ohio Op. 52, 114 N.E.2d 540 (C.P.1952) (new trial granted where treasurer of the prevailing plaintiff company fraternized with member of the jury; no need to show effect on verdict where there is misconduct by prevailing party). But see Ryan v. United States, 191 F.2d 779 (D.C.Cir.1951) (where prosecuting attorney talked with several jurors about matters not related to the case, new trial not granted because conversation had not been prejudicial), cert. denied sub. nom. Duncan v. United States, 342 U.S. 928, 72 S.Ct. 368, 96 L.Ed. 691 (1952); Nyberg v. State, 75 Wis.2d 400, 249 N.W.2d 524 (1977) (no new trial awarded where witness attempted to ingratiate himself with two jurors because court found no prejudice and jurors did not know he was a witness).

Now we may turn to the case at hand. The way to dissolve the complication introduced by the fact that PECO’s attorney did nothing wrong, I suggest, is to consider the verdicts separately, first, the verdict in favor of the additional defendant, Cardamone, and then the verdict in favor of PECO. I shall start by stating the facts, somewhat more fully than have my colleagues, and then I shall apply to those facts the principles just discussed.

The juror and the additional defendant’s attorney had an on-going attorney-client relationship. They had conducted business in the past and at the time of the trial the attorney was representing the estate of the juror’s mother. The juror was the executor of the estate. This relationship was fully disclosed at the beginning of trial. The trial court emphasized at different times that there was to be no contact between any of the jurors and the attorneys and parties. Despite this admonition and in direct violation of the Code of Professional Responsibility, DR7-108(B)(1), the attorney for the additional defendant Cardamone asked his secretary to call the client/juror to ask him to come into the attorney’s office, if necessary while the trial was in progress. R. 37a. The attorney did not request permission from the court to conduct this business and did not inform the court during the trial of this contact. Consequently, during the trial the trial court did not examine the client/juror or the attorney about the contact or provide any remedial instructions to ameliorate the effects of the contact.

When the client/juror came to the attorney’s office, one day during the trial, he and the attorney briefly met and discussed business associated with the estate administration. When the client/juror expressed concern about the meeting, the attorney reassured him. R. 76a-77a. The client/juror in his deposition testified that the attorney even said that “everything had been cleared.” R. 85a.

The purpose of the meeting was to facilitate the filing of the estate papers to take advantage of a 5 percent discount in the inheritance tax — a discount given if filing occurred within 90 days of death. The papers were filed on the day of the meeting and the estate of the client/juror’s mother did get the benefit. The attorney and executor fees were set at 6 and 5 percent, respectively, of the estate. At this meeting the client/juror paid the attorney $1,990.54 in partial payment of the total fee of $3,670.54. Thus, both the client/juror and the attorney received economic benefits from their meeting.

These facts disclose that the communication was initiated by the attorney, through his secretary, but that the contents of the communication did not concern the law suit. Accordingly, under the principles discussed above, in considering whether to grant the plaintiff a new trial as to the additional defendant, the trial court should have inquired whether in initiating the communication the additional defendant’s attorney intended to influence the jury, by indirection. In my opinion, given the intimacy and importance of the communication, the evidence would have supported a finding of intent to influence, although the court also might have found no intent. If the court found intent to influence, then the verdict in favor of the additional defendant should have been set aside, and as to the additional defendant the plaintiff should have been granted a new trial. The additional defendant’s attorney would have tried, by unprofessional conduct, to gain a favorable verdict, and he should not be permitted to keep the verdict.

This finding, however, would not dispose of the plaintiff’s motion that the verdict in favor of PECO should also be set aside, for the facts disclose that PECO’s attorney did nothing wrong. The trial court should therefore have inquired further. Whatever its finding regarding the additional defendant’s attorney’s intent — whether he did or did not intend to influence the jury — the court should have determined whether the additional defendant’s attorney’s communication to the juror did influence the jury in PECO’s favor. If it did, then as to PECO, the plaintiff should have been granted a new trial.

Thus, had the trial court proceeded under the principles I believe applicable, it might have denied the plaintiff’s motion for new trial entirely, or have granted it only as to the additional defendant, or have granted it as to both the additional defendant and the defendant. However, the court did not proceed in this fashion. Instead, without making any findings of fact, either as to intent or prejudice, it granted a new trial as to both the defendant and additional defendant on the ground that the communication to the juror had created an appearance of injustice. Slip op. at 6. In my opinion, this was too general a test, and to that extent, I agree with Judge POPOVICH and Judge WIE-AND and disagree with Judge CIRILLO, although, as I hope my discussion of the importance of determining the additional defendant’s attorney’s intent shows, I share Judge CIRILLO’s concern that the jury’s deliberations not be intruded upon. However, I disagree with Judge POPO-VICH’S and Judge WIEAND’s view that we can decide this case now. Apparently they are satisfied that the additional defendant’s attorney’s communication to the juror could not have influenced the jury in PECO’s favor. They may be right that it did not so influence the jury, but it is not evident to me that it could not have. What effect the communication had is a question of fact that should be resolved by the trial court, not by this court. This is particularly so since, once the trial court were instructed that it should resolve the question, it might wish to receive further testimony. Judge CIRILLO may be too quick to deny PECO relief, but Judge POPOVICH and Judge WIE-AND, I submit, are too quick to grant it.

The case should be remanded for further proceedings consistent with this opinion.

OPINION IN SUPPORT OF REVERSAL

WIEAND, Judge:

The trial record in this case discloses unequivocally that the plaintiffs and the additional defendant were “in bed” together throughout this trial. Both plaintiffs and the additional defendant, who had been joined by the defendant, cooperated in a joint effort to show that the defendant, Pennsylvania Electric Company^ was alone responsible for plaintiffs’ fire losses. To this end, the additional defendant testified as a witness for the plaintiffs and gave important evidence against the defendant. His counsel found it strategically advantageous to cooperate by directing his “artillery” in unison with that of the plaintiffs against the defenses of Pennsylvania Electric Company. When the smoke of battle had cleared, however, the defendant emerged victorious. The victory was won fairly and in keeping with the highest traditions of the adversary system of trial by jury. An impartial jury, which could not have failed to observe the alignment of parties and legal artillery, found that Pennsylvania Electric Company had not been responsible for plaintiffs’ fire losses.

The trial court deprived the defendant of its victory and awarded a new trial because counsel for the additional defendant, who had been in league with the plaintiffs throughout the trial, had participated in an unrelated, mid-trial conversation with one of the jurors. Counsel for the defendant had not been a party to that conversation; he had committed neither actual nor apparent impropriety at any time. His conduct during trial, both in and out of the courtroom, was exemplary and in keeping with the highest standards of the trial bar. To deprive his client of its victory, fairly won, because of an apparent impropriety brought about by counsel for an adverse party is unwarranted and grossly unfair.

In this respect it should also be noted that the existence of an attorney-client relationship between the juror and counsel for the additional defendant had been disclosed to counsel for the plaintiffs prior to the commencement of trial. We need not speculate whether plaintiffs’ counsel, in view of plaintiffs’ alignment with the additional defendant, expected to benefit from that association. It is enough that he knew of the relationship and decided knowingly and deliberately to proceed without objection. A single word from him would have removed any future question of impropriety about the juror’s participation in the verdict. McKean County is not one of Pennsylvania’s more populous counties; it was not unforeseeable that a client, even one who was a juror, might exchange greetings with his lawyer or visit the lawyer’s office to act upon and preserve his own affairs during the course of the trial. Nevertheless, plaintiffs’ counsel remained silent; he elected to take his chances with the juror. When it was subsequently determined that an unrelated, mid-trial conversation had occurred between the juror-client and the lawyer for plaintiffs’ ally, plaintiffs should not have been allowed to change their position to the prejudice of the innocent adversary who won the verdict. Plaintiffs’ decision was made with eyes wide open. Plaintiffs should not be allowed to repudiate their decision after they lost the case.

I agree with Judge Popovich that the trial court’s award of a new trial will not preserve the appearance of propriety and fairness which courts are charged with maintaining. Instead, its decision will encourage a loss of respect for a judicial system which punishes a party who is procedurally without blemish and who has been found substantively without fault.

I would reverse the order awarding a new trial against the defendant, Pennsylvania Electric Company, and direct that judgment be entered on the verdict in its favor.

MONTEMURO and POPOVICH, JJ., join in this opinion.

OPINION IN SUPPORT OF REVERSAL

POPOVICH, Judge:

I dissent to the determination that “the appearance of impropriety here is alone sufficient to warrant a new trial.” (Opinion In Support of Affirmance at 6) Rather, I believe Pennsylvania case law permits our examination of the facts to ascertain whether an unauthorized contact between a juror and party litigant was prejudicial to the losing, opposition party. See Printed Terry Finishing v. City of Lebanon, 247 Pa.Super. 277, 372 A.2d 460 (1977). Thus, there is no need to embrace the “appearance of impropriety” approach to deal with the case at bar, and to do so under the guise that the citizenry of this Commonwealth will some how have their faith in the impartiality of the judicial system shaken is pure sophistry.

Since we are in the unique position of having been afforded insight into the effect the juror-litigant contact had on the outcome of the trial, compare Brancato v. Kroger Co., 312 Pa.Super. 448, 458 A.2d 1377 (1983), the approach taken by the Opinion In Support of Affirmance is uncalled for and should be abandoned in favor of a prejudice-determining standard.

The facts reveal that as a result of a fire which destroyed property owned by appellee-James R. Colosimo, and occupied by the appellees-Mr. and Mrs. Edel, suit was filed by each appellee against the appellant-Pennsylvania Electric Co. The appellant in turn joined Frank Cardamone and Mr. Edel as additional defendants in both suits, while Colosimo was only made an additional defendant in the Edels’ suit. Thus, the cases were tried together.

According to Jay Paul Kahle, Esquire, the attorney for Mr. Cardamone, Mr. Kahle informed the court and all counsel at the outset of the trial that he was performing duties as the attorney for Jay Chapman, Jr., a member of the jury, who was serving as executor of the estate of Inez Chapman. (Deposition of Jay Paul Kahle, 9/10/80, pp. 8, 9). On April 18, 1980, an Inventory and Appraisal in the Inez Chapman Estate was filed bearing the signatures of Mr. Chapman and Mr. Kahle. The jury rendered a verdict in favor of all defendants on April 25, 1980. Post-trial motions were timely filed on May 1, 1980, and supplemented on July 11, 1980. The basis of the supplemental post-trial motion was the undisclosed communication between the juror and the attorney for Frank Cardamone. On September 5, 1980, the court below ordered that depositions be taken of the attorney involved, his secretary and Mr. Chapman. On July 31, 1981, the trial court granted appellees a new trial. On August 7, 1981, the trial court entered an order granting reconsideration of the July 31 order. On October 5, 1981, the court below vacated its reconsideration order, thereby reinstating the July 31, 1981, new trial order.

Appellant attacks the trial court’s opinion of July 31, 1981, arguing that the lower court failed to consider that the relationship between the juror and an additional defendant’s attorney was disclosed and, that the deposition testimony of the juror, the attorney, and the attorney’s secretaries satisfactorily explained the reasons for the contract and that the trial was never discussed. Appellant also points out that the majority of the trial court’s opinion consists of a verbatim recitation of a brief submitted by appellees on July 11, 1980, prior to the taking of the depositions.

Apart from the reasoning set forth in the July 11 brief adopted by the court below, the opinion holds that the April 18 contact was not disclosed to the court and counsel, and was contrary to the trial court’s explicit instructions to the jurors concerning contact with persons involved in the case. Although we do not approve of a trial attorney conducting unrelated legal business with a juror during the course of a trial in which both are involved, there is no per sc rule in Pennsylvania that such contact necessitates the ordering of a new trial. In Printed Terry Finishing v. City of Lebanon, supra, we affirmed the order of a new trial on the issue of damages where a partner of plaintiff’s attorney was seen with a juror after a verdict on liability had been rendered but before the trial for damages. At the start of the trial for damages the appellant requested a mistrial on the basis of this incident. The trial court heard the testimony of two witnesses who saw the juror and the attorney together, and summarized their testimony as follows:

“Mr. Nicholas Moehlmann, Esq., an attorney employed by the law firm representing the appellant, but not a participant in the trial, testified that he did not see the origin of the contact, but he did observe Mr. Katz ‘either shaking the juror’s hand or holding it in some fashion, and he was very close to her face, either kissing her ... on the right cheek or whispering in her right ear. I couldn’t tell exactly what he was doing.’ (NT 67a) Although he was able to perceive that Mr. Katz and Mrs. Artz were conversing, he could not hear the content of their conversation.
Mr. James Reilly, Esq., a City councilman, testified that he saw Mr. Katz ‘shaking her hand in a sort of a long shake as she walked by the corridor ... and he said something to the effect, I will see you next week, and she said, okay.’ (NT 137A) He testified that they conversed at longer length, but he could not hear what had been said. ‘The reason I knew what they said then is because it was said at a distance that was further up the corridor, and he sort of yelled, I will see you next week, and she said, okay.’ (NT 138a) (emphasis added) Mr. Reilly further stated that the incident lasted from ‘fifteen seconds to half a minute.’ (NT 139a)”

247 Pa.Super. at 296, 372 A.2d at 470. When counsel for appellant declined to allow the trial to proceed with eleven jurors, the trial judge refused appellant’s motion for a mistrial. We found that the trial judge had erred in not granting the mistrial for the reason that the communication had been described and verified, but not explained, thus casting suspicion on the integrity of the jury verdict. Id., 247 Pa.Superior Ct. at 298, 372 A.2d at 471. In reaching this conclusion, we were persuaded by the fact that there was no evidence on the record from which we could conclude that the conversation had no influence on the verdict. All that was determined was that the contact took place. “We did not know, and the trial judge could not have known, the content of the conversation or that it was not intended to, or did not, influence either Mrs. Artz or other jurors who were possibly watching or listening.” Id.

In the case sub judice, Mr. Chapman went to Attorney Kahle’s office on April 18, 1980, to sign an inheritance tax return and inventory in order to receive the 5% discount on the Pennsylvania transfer inheritance tax due on his mother’s estate. (Deposition of Jay E. Chapman, 9/10/80, p. 7). Mr. Kahle testified that his secretary had informed him that it was necessary that Mr. Chapman sign the papers because the three month time period in which to obtain the discount was running out. Therefore, he had instructed his secretary to contact Mr. Chapman to have the papers executed. (Deposition of Jay Paul Kahle, 9/10/80, p. 3). Mr. Kahle testified further that he had no recollection of having had a meeting with Mr. Chapman on April 18, but that he did see Mr. Chapman on that date as Mr. Chapman was leaving Mr. Kahle’s office and, to the best of his recollection, they greeted each other briefly and Mr. Chapman indicated that the papers had been signed. (Deposition of Jay Paul Kahle, 9/10/80, p. 2-5).

Mr. Chapman testified that he did meet with Mr. Kahle on April 18 to sign the estate papers. (Deposition of Jay E. Chapman, 9/10/80, p. 19). When asked if Mr. Chapman discussed the Colosimo lawsuit when he met with Mr. Kahle, Mr. Chapman replied:

“A Absolutely not. I made one comment to Mr. Kahle. I said, ‘I suppose this is okay,’ and he said ‘Yes.’
Q What did you mean by T suppose this is okay’?
A Well, I have been around enough so that, you know, I know about the association of doing business as a juror when you are doing business with somebody involved in it, in the case, and I didn’t want any semblance of impropriety. I wanted to be on the up-and-up with the deal and I was under the impression from Mr. Kahle everything was fine so there was nothing to worry about. Handled [sic] all communications necessary to inform all parties involved that I did have business in his office.
Q So all you did that day then was sign the papers?
A I signed the papers.”

(Deposition of Jay E. Chapman, 9/10/80, pp. 19, 20). Mr. Chapman also stated that his' contact with Attorney Kahle and Attorney Kahle’s secretaries did not affect him in the deliberation or decision in the case, (Deposition of Jay E. Chapman, 9/10/80, pp. 24-26), and that there had been no discussion concerning the case. (Deposition of Jay E. Chapman, 9/10/80, pp. 27, 28). Mr. Chapman also wrote four checks, including one representing Mr. Kahle’s fee. (Deposition of Jay E. Chapman, 9/10/80, pp. 27, 28). Mr. Kahle’s secretaries testified that Mr. Chapman came to the office on April 18 to sign the checks and papers, but that they did not talk to Mr. Chapman about the trial. (Deposition of Bonnie Semmel, 9/10/80, pp. 13, 14) (Deposition of Rose Elliott, 9/10/80, pp. 6-8).

In support of the lower court’s order that a new trial be held, appellees cite, as did this court in Printed Terry, Disciplinary Rule 7-108(B) of the Code of Professional Responsibility, which provides that:

“During the trial of a case: (1) A lawyer connected therewith shall not communicate with or cause another to communicate with any member of the jury. (2) A lawyer who is not connected therewith shall not communicate with or cause another to communicate with a juror concerning the case.”

Although Rule 7-108(B) clearly proscribes any contact between a juror and an attorney connected with a case, whether the contact is related to the case or not, a violation of this rule does not necessarily mean that the case must be tried anew. In Printed Terry the communication between the attorney and the juror was not explained and, therefore, we could not determine if the contact influenced the outcome of the case. 247 Pa.Super. at 298, 372 A.2d at 471. Although in Printed Terry we specifically reserved ruling on the issue presented in the instant case, where the incident was explained but involved more than an unavoidable courtesy, discreet in nature, we clearly contemplated the situation where communication between an attorney and a juror could be explained satisfactorily so that a new trial would not be deemed necessary. We stated:

“Such contacts, however, must not be of such a nature as to cast suspicion upon the integrity of the jury verdict. Thus, the Supreme Court of the United States, in Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892), pronounced that:
‘Private communications, possibly prejudicial between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.’ Id. at 150, 13 S.Ct. at 53. (Emphasis added).

We therefore agree with the statement of the court in California Fruit Exchange v. Henry, 89 F.Supp. 580, 588-89 (W.D.Pa.1950), that:

‘The courts look with suspicion upon any communications between parties to a' suit or their counsel and the jury impaneled to try it; and if such communication is had and it appears that a conversation was had about the suit, or the communication is not explained satisfactorily, it will, in itself, be ground for a new trial. If, when explained, however, it can be seen in the communication nothing was said about the case and nothing was done for the purpose of influencing the mind of the jury, and that the communication or conversation had no influence on the verdict which was reached, no ground exists to set the verdict aside for the reasons that said comment could not have been prejudicial.’ ” (Emphasis in original)

Id., 247 Pa.Superior Ct. at 298-299, 372 A.2d at 471.

In the instant case, there is ample record evidence that the contract between Mr. Chapman and Attorney Kahle was innocuous. Mr. Kahle had informed the court and counsel that between the time the jury had been selected, in October, 1979, and the commencement of trial in April 1980, Mr. Chapman had consulted him involving the estate of Inez Chapman. (Plaintiffs Proposed Findings of Fact and Conclusions of Law, p. 2). Mr. Kahle testified that Mr. Chapman was a client of his in an active case. (Deposition of Jay Paul Kahle, 9/10/80, pp. 8, 9). Nevertheless, neither party objected, moved for a mistrial, or asked that Mr. Chapman be replaced or that a new jury be impaneled.

Further, and more importantly, it cannot be discounted that the juror’s contact was not with the appellant’s counsel. A point which I believe has been relegated, and unnecessarily so, to a secondary status in the Opinion In Support of Affirmance. Merely because contact occurred between a juror and counsel for the additional defendant-Cardamone does not lead to the inescapable conclusion that the plaintiffs-appellees were denied a right to a fair trial in their cause of action against the appellant-Pennsylvania Electric Co.

In point of fact, Cardamone’s posture at trial was not favorable to Pennsylvania Electric Co. For example, aside from having been forced into the suit as an additional defendant by Pennsylvania Electric Co., Cardamone testified on behalf of the plaintiffs’ case and counsel for the plaintiffs did not treat him as a hostile witness. During the remaining portion of the trial, Cardamone was not called as a witness in his own behalf or for the benefit of the other defendants.

Given the fact that we have a clear picture of what transpired below (between additional defendant-Carda-mone’s counsel and a juror), which bespeaks of conduct that may be regretable but certainly not reversible, this writer refuses to join in the Opinion In Support of Affirmance’s “appearance of impropriety” stance for it does little to advance the cause of jurisprudence. Rather, it applies a per se rule of reversal where the facts (supplemented by post-trial depositions on the allegation of impropriety) dictate a prejudicial error standard, which, when applied to the case at bar, reveals that the conduct complained-of was harmless at best. See Brancato v. Kroger Co., supra.

Accordingly, I would reverse the order of the lower court.

      . There is some conflict in testimony as to the extent of contact at this April 18th meeting. Kahle testified that he merely passed Chapman in the hall, while Chapman testified that the meeting lasted fifteen minutes.

        . We look with suspicion upon such out-of-court communications and presume that prejudice arises therefrom. Mattox v. United States, supra; California Fruit Exchange v. Henry, 89 F.Supp. 580 (W.D.Pa. 1950). This presumption of prejudice, where applicable, is rebutted only by a strong showing to the contrary. Mattox v. United States, supra; see also, Hobson v. Wilson, Til F.2d 1 (D.C.Cir.1984).

      . The Code of Professional Responsibility adopted by our Supreme Court provides that: "During the trial of a case: (1) A lawyer connected therewith shall not communicate with or cause another to communicate with any member of the jury____” Code of Professional Responsibility DR 7-108; "To safeguard the impartiality that is essential to the judicial process, veniremen and jurors should be protected against extraneous influences. When impartiality is present, public confidence in the judicial system is enhanced. There should be no extrajudicial communication with ... jurors during trial by or on behalf of a lawyer connected with the case.” Code of Professional Responsibility EC 7-29.

      . In Printed Terry the full content of the out-of-court communication was not explained. The trial court only knew that such communication was made. Because the content was not explained the trial court could not tell whether a mere social amenity was involved or something more. Therefore we held that the trial court properly granted a new trial. See California Fruit Exchange v. Henry, supra at 588 (out-of-court communication must be explained). In the instant case the content of the subject communication was amply detailed.

      . This is a simplified statement of the parties to the case, which is procedurally complex. Appellees, the owner and occupiers of a restaurant property, sued appellant, PECO, for damages arising out of a fire at their premises. Two suits were brought, one by the owner and one by the occupiers. Later, the two suits were consolidated. PECO joined Frank Cardamone as an additional defendant in the two consolidated suits. In the suit brought by the owner of the property, PECO also joined the occupier as an additional defendant. In the suit brought by the occupiers of the property, PECO also joined the owner and one of the occupiers as additional defendants. Following verdicts in favor of PECO and all of the additional defendants, the trial court, on appellees’ supplemental post-trial motions, entered an order for a new trial on the ground that the attorney for the additional defendant Cardamone had improper contact with one of the jurors. Only PECO has appealed. In what follows, the phrase “the additional defendant” will refer only to Cardamone. Although there were other additional defendants, it is unnecessary to the analysis to refer to them.

        . This holding was consistent with the holding in Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892) (new trial required where trial court did not consider affidavits alleging that bailiff had improper communications with the jury about the case and the defendant and that newspaper editorials concerning the case and the defendant had been introduced into the jury room).

      . Such communications may be written or oral, and may concern either the subject of the suit or evidence that might be introduced, such as evidence of a prior criminal record for impeachment purposes. In Landes v. Faella, 106 R.I. 23, 255 A.2d 724 (1969), the court held there must be some showing that the conversation complained of was in some way related to the trial itself before a jury verdict will be set aside. This case represents a very strict view and is not generally followed. See discussion infra.

      . If the communication is initiated not by the defendant’s attorney but by the defendant himself it may be that a different rule should apply. Since the defendant is not subject to rules of professional conduct, as the attorney is, it may be necessary to inquire further and determine whether the defendant intended to influence the jury. However, that case is not before us and we therefore need not decide it now.

      . Presumably this is the reasoning behind decisions finding no prejudice in contacts initiated by jurors by briefly or curtly responded to by litigants, and vice versa. See, e.g., Sisters of St. Joseph v. Edwards, 45 Ariz. 407, 44 P.2d 155 (1935) (conversation not so prejudicial as to require reversal where juror and plaintiff discussed union business unrelated to the suit); Potts v. Krey, 362 S.W.2d 726 (Ky.1962) (no prejudice where plaintiff asked juror to ask plaintiffs daughter to bring injured boy into courtroom); Caughman v. Glaze, 412 S.W.2d 357 (Tx.Civ.App.1967) (no prejudice where defendant spoke with jurors and exchanged salutations); State v. Black, 551 P.2d 518 (Utah 1976) (no prejudice shown where juror inquired how testifying police officer’s father was). See also Chagnon v. Union Leader Corp., 103 N.H. 426, 174 A.2d 825 (1961) (libel trial not unfair where foreman juror’s son, who was being represented by plaintiffs attorney, attended son’s trial and spoke with the attorney regarding his son’s bail), cert. denied 369 U.S. 830, 82 S.Ct. 846, 7 L.Ed.2d 795 (1962).

      . Of course, the additional defendant Cardamone may not complain that the court proceeded improperly, for he took no appeal.

      . The record may be inadequate in certain areas. For example, the juror was asked during the taking of his deposition whether the contact with the attorney affected his deliberations, and whether anyone did or said anything that prejudiced him. R. 81a-83a. However, the questions and responses did not distinguish between the two deliberations the juror had to engage in — the one as to PECO, the other as to Cardamone. I therefore am unable, to agree with Judge WIEAND’s statement, in footnote 2 of his opinion, at 1388, that “[a] full evidentiary hearing has already been held.” Moreover, even if no further testimony is necessary, still, I do not believe a hearing may be characterized as “full” when the trial court did not apply the correct legal principles, and, consequently, did not make any findings of fact.

      . It is significant that counsel for the additional defendant has not appealed from the order of the trial court awarding plaintiffs a new trial.

      . It is possible to applaud the careful research apparent in the Opinion authored by President Judge Spaeth while at the same time decrying the unnecessary additional proceedings which the author proposes. There is no need for additional proceedings. A full evidentiary hearing has already been held. At that hearing the plaintiff-appellees failed to produce any evidence that the verdict in favor of PECO, the innocent party, had been influenced by the communication between counsel for the additional defendant and one of the jurors. Appellees are not entitled to a second chance to prove facts which they failed to prove at the first hearing. This court is now required to review the record as it was prepared (not as it might have been prepared) in the court below. We should not — properly, we cannot — avoid this responsibility by remanding either because a party might have developed a stronger case in the trial court or because the facts proved in the trial court do not fit precisely into the precedential patterns set by prior judicial decisions.

      . On September 4, 1980, appellant filed an answer to appellees’ supplemental new trial motion, and alleged that such motion was not timely filed under Pennsylvania Rule of Civil Procedure (Pa.R.C.P.) 227.1, and that no leave of court was granted to appellees to file the motion late. Appellant has renewed this contention on this appeal.
      Appellees argue that the court below properly disregarded the timeliness issue in ordering that depositions be taken regarding the substance of the out-of-court contact. Pa.R.C.P. 126, which allows a trial court to disregard any error or defect in procedure not affecting the substantial rights of the parties, has been interpreted to permit a waiver of procedural rules when good and sufficient reasons exist.
        Stokes v. Thiemann, 296 Pa.Super. 112, 442 A.2d 322 (1982). See also, E.J. McAleer & Co. v. Iceland Products, 475 Pa. 610, 381 A.2d 441 (1977). In this case, appellees maintain that the out-of-court contact did not come to light until after the trial. Because of the serious nature of the allegation raised by the supplemental post-trial motion, we find that the trial court properly ordered discovery on this issue despite the procedural defect.


source: Caselaw Access Project

author: SPAETH, Judge: BROSKY, Judge, HESTER, Judge,

license: Public Domain

text:
    487 A.2d 1
    COMMONWEALTH of Pennsylvania v. Kevin CADEN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1983.
    Filed Dec. 5, 1984.
    Reargument Denied Feb. 14, 1985.
    Petition for Allowance of Appeal Granted Aug. 12, 1985.

      Stanley E. Gever, Philadelphia, for appellant.
    Mariana C. Sorensen, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, HESTER and BROSKY, JJ.
   SPAETH, Judge:

This appeal is from a judgment of sentence for risking a catastrophe and conspiracy. Appellant argues that the Commonwealth failed to establish its due diligence in bringing him to trial within the period prescribed by Pa.R.Crim.P. 1100, and also, that the evidence was insufficient to sustain his conviction of risking a catastrophe. We have concluded that the Commonwealth did not comply with Rule 1100, and that appellant must therefore be discharged. This conclusion makes it unnecessary to address appellant’s second argument.

On November 20, 1980, appellant was brought to trial, but a mistrial was declared and trial was set for January 22, 1981. Rule 1100(e)(1) provides:

When a trial court has granted a new trial and no appeal has been perfected, the new trial shall commence within one hundred and twenty (120) days after the date of the order granting a new trial.
Pa.R.Crim.P. 1100(e)(1).

One hundred and twenty days from November 20, 1980, was March 20, 1981. Thus, appellant’s new trial was set well within the period prescribed by Rule 1100.

However, on January 22, 1981, the case was called for trial before the judge who had declared the mistrial on November 20, 1980. Because of his earlier participation, the judge recused himself, and trial was set for February 5, 1981, still well within the period prescribed by Rule 1100.

When the case was called for trial on February 5, 1981, the Commonwealth requested a continuance because its complaining witness was ill. The request was granted, and trial was set for March 27, 1981, seven days outside the period prescribed by Rule 1100.

There is dispute about the legal significance of the order continuing the trial to March 27, and we shall discuss this dispute in a moment. Suffice it to say now that no transcript of the proceeding was made. The record is unclear but suggests that neither the judge who continued the trial nor the parties were aware that March 27 was outside the period prescribed by Rule 1100. At some point, however, the Commonwealth did become aware of that fact, for on February 10, 1978, it filed a petition to extend the period. The petition stated: “1/22/81, Judge recused self; Judge had previously granted mistrial and was not scheduled to sit on this date. 2/5/81, Commonwealth witness ill.”

On March 18, 1981, a hearing was held on the Commonwealth’s petition to extend. Appellant opposed the petition. The hearing was largely concerned with what had occurred on February 5. The Commonwealth argued that the order of February 5 continuing the trial had extended the period prescribed by Rule 1100. Initially, the reaction of the hearing judge was that the case should be tried at once, i.e., on March 18, which was still two days within the period prescribed by Rule 1100. Thus the judge asked, “Why cannot this trial be disposed of before March the 20th?,” going on to say, “I will hear it now,” N.T. 18, and setting “[f]our o’clock today,” N.T. 21. Eventually, however, the hearing judge was persuaded by the Commonwealth that the February 5 order had not merely continued the trial, but had extended the period prescribed by Rule 1100, to March 27. N.T. 28. He therefore did not set the case down for immediate trial but instead granted the Commonwealth’s petition to extend. This was error.

The judge who tried the case on March 27 was the judge who had continued it to that date on February 5. In his opinion to us the judge says that when the Commonwealth requested a continuance, on February 5,

this Court contacted Court Administration and specifically requested the earliest possible date consistent with the Court’s business. As a result of the request, the trial was rescheduled for March 27, 1981, which was seven days beyond the run date.
Slip op. at 4-5.

As we have said, no transcript of the February 5 proceeding was made. We may, however, accept the trial judge’s description of his call to Court Administration as though the call did appear of record; that in no way affects our conclusion that the judge’s order continuing the case to March 27 was not, and could not have been, an order extending the period prescribed by Rule 1100. The order was not an order extending the period, for so far as the record discloses, no one told the judge that March 27 was beyond the period, so that if he picked that date an extension would be needed. We think it safe to assume that the judge did not realize that he was continuing the case beyond the run date. But whether he realized it or not, his order could not be an order extending the period, for it was not issued in response to a petition for an extension. All that occurred on February 5 was that the case was called for trial, and at the Commonwealth’s request, an order was issued continuing it.

The Commonwealth’s contention at the hearing on March 18 that the order of February 5 continuing the case was an order extending the period prescribed by Rule 1100 was belied by the action of the Commonwealth in filing, on February 10, a petition for an extension. For if the period had already been extended, no petition was necessary. By filing the petition the Commonwealth showed that it knew that no extension had been either requested or granted.

When the Commonwealth’s petition for an extension was called for hearing, on March 18, the Commonwealth had a choice of two proper ways to proceed. First, the Commonwealth could try the case at once, as the hearing judge offered to do. (Perhaps, despite the judge’s offer, that would not have been possible, for it might not have been possible to get the witnesses in.) Or second, the Commonwealth could prove that it had exercised due diligence in trying to bring appellant to trial within the period prescribed by Rule 1100, and that therefore the period should be extended. The choice the Commonwealth actually made — to argue that the period had already been extended — was inconsistent with all that had gone before.

As it is, we are confronted with an anomalous order: In response to the Commonwealth’s petition for an extension, filed February 10, the hearing judge should have entered an order either extending or refusing to extend the period prescribed by Rule 1100, according to whether he found or did not find due diligence. Instead, he made no findings, one way or the other, regarding due diligence, but entered an order extending the period to March 27 on the basis of a finding that on February 5, when the case had been continued, the period had already been extended to March 27. Thus by his own finding the judge made his order, and the Commonwealth’s petition for an extension, nullities.

We should ignore this anomaly, and refuse to order appellant discharged, if the record showed that at the March 18 hearing on the Commonwealth’s petition for an extension the Commonwealth had proved its due diligence. For in that event we could conclude that appellant’s rights under Rule 1100 had not been violated. In fact, however, the Commonwealth did not prove its due diligence.

The only witness the Commonwealth called at the March 18 hearing on its petition for an extension was the assistant district attorney who had been present when the case was called for trial on February 5 and was continued to March 27. He testified that about eleven o’clock on the morning of February 5 he had telephoned the complaining witness “when he didn’t show,” and that the witness had said that “he was sick at home that day and could not come in.” N.T. 4. He also testified that he then asked the trial judge for, and was given, “the earliest possible date, which is only a month and a half from the time that we were on trial that day [February 5], and that was on March the 27th of ’81, and that would be my testimony.” N.T. 5-6.

It is settled that in applying for an extension of the Rule 1100 period for bringing a defendant to trial, the Commonwealth must make a record showing that it could not, in the exercise of due diligence, have brought the defendant to trial before the expiration of the Rule 1100 period. Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Warman, 260 Pa.Super. 130, 393 A.2d 1046 (1978). Mere assertions of due diligence and unproved facts do not establish due diligence under Rule 1100. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Antonuccio, 257 Pa.Super. 535, 390 A.2d 1366 (1978) (per curiam); Commonwealth v. Porter, 251 Pa.Super. 346, 380 A.2d 812 (1977). “When a case has Rule 1100 problems, prosecutors must do everything within their power to see that the case is tried on time.” Commonwealth v. Smith, 477 Pa. 424, 428, 383 A.2d 1280, 1282 (1978). See also Commonwealth v. Metzger, 249 Pa.Super. 107, 375 A.2d 781 (1977). Moreover, while court scheduling difficulties may provide the basis for an extension,

the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.
Commonwealth v. Mayfield, supra, 469 Pa. at 222, 364 A.2d at 1349-50 (emphasis added).

See also Commonwealth v. Morgan, 484 Pa. 117, 398 A.2d 972 (1979); Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).

Here, the Commonwealth fell far short of meeting its burden. The assistant district attorney asserted that he was given “the earliest possible date,” but no evidence supports the assertion. We may assume from the trial judge’s opinion to us that when the Commonwealth requested a continuance, the judge spoke to someone in the Court Administrator’s Office, but whoever it was, that person wasn’t called as a witness. Thus, contrary to the Supreme Court’s mandate, the record does not “show the causes of the court delay and the reasons why the delay [could] not be avoided.” Commonwealth v. Mayfield, supra, 469 Pa. at 222, 364 A.2d at 1349-50. And see Commonwealth v. Fairley, 298 Pa.Super. 236, 444 A.2d 748 (1982) (Court Administrator testified that due to backlog, low priority-listing given driving under the influence cases under court policy); Commonwealth v. Banner, 295 Pa.Super. 87, 440 A.2d 1389 (1982) (record shows case delayed by court scheduling problems); Commonwealth v. Royer, 256 Pa.Super. 361, 389 A.2d 1165 (1978) (record shows case delayed because courtroom unavailable). The Commonwealth’s petition for an extension of the period prescribed by Rule 1100 should therefore have been denied.

The judgment of sentence is reversed and appellant is ordered discharged.

BROSKY, J., files a concurring opinion.

HESTER, J., files a dissenting opinion.

BROSKY, Judge,

concurring:

While I agree with the result reached in the lead opinion, my reasons for reaching that result differ somewhat from the analysis therein. I note first that the Commonwealth argues that, by failing to object on February 5 to the continuance to March 27, appellant waived Rule 1100 until March 27. The lead opinion’s response to this argument is that there could be no waiver of an extension of the Rule 1100 period because no petition for extension was under consideration. This response would seem to be a non sequitur since the Commonwealth is arguing not that appellant waived Rule 1100 by failing to object to a requested extension via a Rule 1100 petition, but that waiver occurred because appellant failed to object to a continuance that scheduled a trial date beyond the Rule 1100 period. If the Commonwealth were correct in its contention, it would then be completely irrelevant that when an extension was requested by a petition filed on February 10 appellant objected to it. However, I agree that the Commonwealth’s argument does lack merit.

It is certainly true that, if a defendant or his counsel agrees to a continuance where trial is scheduled beyond the Rule 1100 period, the defendant may not thereafter complain that the rule was violated. Commonwealth v. Hickson, 235 Pa.Super. 496, 344 A.2d 617 (1975). However, as a general principle, this type of waiver only applies in cases in which the defendant (or his counsel) actively agreed to a late trial date. Commonwealth v. Lovera, 248 Pa.Super. 439, 441, 375 A.2d 178, 179 (1977) (Spaeth, J.) (no waiver where there was no evidence that appellant made any statements or otherwise indicated that he accepted the delay).

An exception to this general principle can be found in the case of Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981), upon which the Commonwealth relies. In Brown, the court found a waiver of Rule 1100 where the defendant and his counsel sat silently in open court and listened to the judge announce a trial date beyond the last day for trial under Rule 1100. The Commonwealth fails to note, however, the special circumstances involved in that case emphasized by the Brown court in explaining its decision. Of particular importance to that court was the fact that the defendant understood the nature and scope of his rights under Rule 1100, as well as the consequences of waiving these rights, as he had on an earlier occasion expressly and validly waived these rights. The Brown court further noted that the defendant was not prepared to proceed to trial during the Rule 1100 period and that the trial date was set solely for the defendant’s benefit.

None of the circumstances emphasized in Brown is of record in the case sub judice. There is no indication on record that appellant was even present when the continuance was granted and the trial date set let alone that he and his counsel sat in silence while the trial date was announced. There is also no reason from the record to believe that appellant was fully aware of his Rule 1100 rights or that he was not prepared to proceed to trial. The record does demonstrate, however, that unlike Brown, the continuance was granted solely for the Commonwealth’s benefit. Thus, I find Brown to be clearly distinguishable from the case at bar and, accordingly, conclude that the Commonwealth’s claim of waiver lacks merit.

Secondly, I believe the lead opinion and the dissent are essentially debating a question which, on the state of the record, this court cannot answer. They differ over whether the Commonwealth at the March 18 hearing, proved due diligence. However, as the lead opinion itself points out, the hearing judge made no findings, one way or the other, regarding due diligence. Instead, the record clearly shows that his order was based solely on the finding that the Rule 1100 period had already been extended on February 5. Since we, as an appellate court, cannot make factual findings regarding due diligence and since we are without the benefit of such findings by the hearing judge, it is impossible for us to conclude, one way or the other, whether due diligence was proved.

Under such circumstance, I believe the proper inquiry becomes whether or not the evidence produced by the Commonwealth at the March 18 hearing was sufficient to prove due diligence. In other words, looking at the evidence in the light most favorable to the Commonwealth, would it support a finding of due diligence. See Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981). If we were to find the evidence to have been sufficient, I would then remand the case for a new Rule 1100 hearing. If, however, we were to find the evidence to have been insufficient, it would be improper to remand the case simply to give the Commonwealth a second opportunity to prove due diligence and I would simply reverse the judgment of sentence and discharge the appellant.

Instantly, I find that the analysis of the lead opinion, although framed in terms of whether or not the Commonwealth’s evidence proved due diligence instead of in terms of the sufficiency of that evidence, nevertheless demonstrates that the evidence was, in fact, insufficient to prove due diligence. Therefore, I agree with President Judge Spaeth that the judgment of sentence should be reversed and appellant discharged.

HESTER, Judge,

dissenting:

In Commonwealth v. Donaldson, 334 Pa.Super. 473, 483 A.2d 549 (1984), this Court ruled that the Commonwealth must prove that it exercised due diligence in bringing the defendant to trial and that trial, whether scheduled originally or upon extension, was scheduled on the earliest possible date. Donaldson also held that where due diligence is not proven, trial may be extended beyond the original run-date providing the defendant waives his speedy trial rights and agrees to the extension. Finally, Donaldson rules that where there is no record of a lower court proceeding, a reviewing court will not remand for an evidentiary hearing on whether the Commonwealth carried its burden of proving due diligence, the earliest possible date or the defendant’s waiver of speedy trial. It is the Commonwealth’s burden to construct a recorded hearing; there will be no remand for a second hearing to provide the Commonwealth with another opportunity.

The majority errs in applying Donaldson principles to the February 5, 1981 hearing. That hearing was not recorded and, in conjunction with the Commonwealth’s failure to file a petition to extend prior to that hearing, the majority concludes that the lower court on March 18, 1981 erred in finding that the February 5th court did extend the run-date.

The proper subject for review was not whether the February 5th court granted an extension, but whether the Commonwealth proved the allegations set forth in its petition for an extension on March 18, 1984. Its petition was timely filed and properly before the Court.

The transcript from the March 18th hearing includes testimony by the prosecutor that the Commonwealth was unable to secure the presence of the complaining witness due to illness. Secondly, he testified that the earliest possible date had been secured. It is unclear whether the lower court relied on this testimony or on its belief that the February 5th court granted an extension. Nevertheless, there was evidence that the Commonwealth carried its burden. The evidence is sufficient to preclude a reviewing court from holding that there was an abuse of discretion.

In view of the foregoing, in addition to the fact that the evidence was sufficient to sustain the verdicts, I would affirm.

      . See N.T. 6 & 8, where by his questioning the assistant district attorney sought to show that the period had been extended.

      . At the hearing on March 18, on the Commonwealth’s petition for an extension, the assistant district attorney asserted that "[the judge] was apprised of the run date [by the court clerk].” N.T. 17. Defense counsel, however, disagreed, and pointed out that the assistant district attorney’s statement was not admissible evidence to show what the judge had been told. Defense counsel was quite correct. The assistant district attorney did not say that he had heard anything said to the judge about the run date, and neither the judge nor the court clerk was called to testify. Nor does the judge say in his opinion to us that he knew or that anyone told him that the run date was March 20.

      . The Commonwealth, relying on Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981), argues that by failing to object on February 5 to the continuance to March 27, appellant “effectively waived Rule 1100” until March 27. Brief for the Commonwealth at 3. This argument lacks merit. In Brown the Supreme Court noted: "There are no formal requirements for a valid waiver of Rule 1100; ‘[s]o long as there is an indication, on the record, that the waiver is the informed and voluntary decision of the defendant, it will be accorded prima facie validity.’” Id., 497 Pa. at 11, 438 A.2d at 594 (quoting Commonwealth v. Myrick, 468 Pa. 155, 160, 360 A.2d 598, 600 (1976)). Here, there could be no informed and voluntary waiver of an extension of the period prescribed by Rule 1100, for no extension was requested. When an extension was requested, by the Commonwealth’s petition for an extension on February 10, appellant objected to it.

      . We are unable to subscribe to the view of the dissent that these self-serving statements of the assistant district attorney established the Commonwealth’s due diligence. See Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Delpiano, 290 Pa.Super. 510, 434 A.2d 1260 (1981); Commonwealth v. Antonuccio, 257 Pa.Super. 535, 390 A.2d 1366 (1978).

      . While it is clear that a defendant may waive a Rule 1100 claim by failing to contest a petition to extend, see Commonwealth v. Yancey, 301 Pa.Super. 427, 447 A.2d 1041 (1982), that is not the type of waiver alleged by the Commonwealth in this case.

      . The record before us is, of course, incomplete since, as noted in the lead opinion, no transcript of the February 5 proceeding was made. However, the case of Commonwealth v. Donaldson, 334 Pa.Super. 473, 483 A.2d 549 precludes us from remanding the case for an evidentiary hearing.

      . I do not believe that such a remand would be precluded by Commonwealth v. Donaldson, supra. Unlike Donaldson, in which we held that, since it was the Commonwealth’s burden to construct a recorded hearing, we would not give the Commonwealth a second opportunity to do so by remanding the case, there would be no reason to penalize the Commonwealth over a procedure of which it had no control (the making of findings regarding due diligence). Cf. Commonwealth v. Spaulding, 275 Pa.Super. 261, 418 A.2d 712 (1980) (where suppression court fails to make findings of fact and conclusions of law, a new suppression hearing is required).

      . This dissenting opinion was delayed by the filing of this Court’s en banc opinion in Commonwealth v. Donaldson, 334 Pa.Super. 473, 483 A.2d 549 (1984).


author: WIEAND, Judge:

text:
    487 A.2d 7
    COMMONWEALTH of Pennsylvania, Appellant, v. Helen McKEIRNAN, Robert Michael McKeirnan, Michael Francis McKeirnan, Gary Francis McKeirnan, Ross William McKeirnan, Appellees.
    Superior Court of Pennsylvania.
    Argued May 8, 1984.
    Filed Jan. 4, 1985.

      Russell F. Daiello, District Attorney, Coudersport, for Commonwealth, appellant.
    Joseph J. Malizia, Emporium, for appellees.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

The Commonwealth has appealed from an order suppressing all evidence and quashing informations which charged members of the McKeirnan family with assaulting and otherwise hindering members of the State Police in the performance of their duties. The only reason given for this order by the trial court was that the State Police had been illegally present upon McKeirnan land at the time of the alleged assault. We reverse and remand for further proceedings.

Although there is considerable dispute about the events which occurred on the evening of August 7, 1982, we accept as true and binding the facts found by the court below. However, we are not bound by the court’s conclusions of law. See: Commonwealth v. Hamlin, 503 Pa. 210, 215, 469 A.2d 137, 139 (1983); Commonwealth v. Markman, 320 Pa.Super. 304, 308, 467 A.2d 336, 338 (1983).

The facts found by the trial court disclose that at or about 6:15 p.m., Trooper Sam Breniman was investigating a shooting incident on Sizerville Road in Shippin Township, Cameron County. His investigation caused him to stop at the homes of several local residents to make inquiry. He arrived at the McKeirnan home about 8:30 p.m. Here, the residence was set back from the road, and access thereto could be acquired only by using a privately owned bridge to cross an intervening creek. The McKeirnan family had celebrated a wedding reception at their home during the afternoon, and that evening family members were gathered around an outdoor pool. Breniman arrived in uniform but driving an unmarked car. When Mr. and Mrs. McKeirnan approached to ask the purpose of his visit, Breniman steadfastly refused to answer repeated inquiries. The McKeir-nans then asked Breniman to leave, but he refused. He said he wanted to speak with Robert McKeirnan. Robert was standing nearby and, in an effort to get the trooper’s attention, grabbed Breniman’s tie and pulled it off. Breni-man told Robert that he was under arrest for destroying Commonwealth property. A scuffle then ensued during which several members of the family attempted to escort Breniman to his car. Blows were struck, and Breniman told Robert and Ross McKeirnan that they were under arrest for assault. Believing he would not be able alone to effect an immediate arrest, Breniman returned to his barracks to obtain assistance. Accompanied by Corporal Paul Motters-head and Patrolman David Shinskie, Breniman then returned to the McKeirnan residence. There, another scuffle broke out, during which Ross McKeirnan was struck on the head with nightsticks and seriously injured. Subsequently arrested, in addition to Ross McKeirnan, were his brothers, Robert and Gary, and his parents, Helen and Robert Michael McKeirnan. They were variously charged with committing assault offenses and obstructing police officers in violation of 18 Pa.C.S. § 5101.

Separate omnibus pre-trial motions were filed in which appellees requested, inter alia, that all evidence be suppressed and the charges dismissed because of illegal entries made by police upon McKeirnan land. The court treated the motions to dismiss as motions to quash and quashed the informations. The court also suppressed the testimony of the three state troopers.

The quashing of the informations was improper.

A motion to quash may be used to raise defects apparent on the face of the information or other defects that would prohibit prosecution____ A motion to quash an information is neither a guilt determining procedure nor a pre-trial means for determining the sufficiency of the Commonwealth’s evidence____ The inadequacy, incompetency, or even illegality of the Commonwealth’s evidence does not constitute grounds for quashing an information.

Commonwealth v. Meoli, 307 Pa.Super. 50, 52-53, 452 A.2d 1032, 1033-1034 (1982) (citations omitted) (emphasis added). See: Commonwealth v. Moser, 328 Pa.Super. 237, 240, 476 A.2d 980, 981 (1984); Commonwealth v. Gemelli, 326 Pa. Super. 388, 402, 474 A.2d 294, 301 (1984).

It is well settled that an illegal arrest does not bar a subsequent prosecution or prevent a valid conviction. United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537, 547 (1980); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54, 68 (1975); Commonwealth v. Sudler, 496 Pa. 295, 304, 436 A.2d 1376, 1380 (1981); Commonwealth v. Krall, 452 Pa. 215, 219, 304 A.2d 488, 490 (1973); Commonwealth v. Meoli, supra 307 Pa.Super. at 54, 452 A.2d at 1034; Commonwealth v. Bable, 286 Pa.Super. 203, 206, 428 A.2d 643, 644 (1981); Commonwealth v. Kazior, 269 Pa.Super. 518, 521, 410 A.2d 822, 823 (1979). The court’s belief that the state troopers had violated appellees’ Fourth Amendment rights was not a proper basis on which to quash the informations. The remedy for an illegal arrest is the suppression of the evidence illegally obtained thereby. However, a court cannot quash an information merely because the court believes that some or all of the Commonwealth’s evidence has been obtained illegally. See, e.g.: United States v. Calandra, 414 U.S. 338, 344-345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561, 569 (1974) (pertaining to grand jury indictments); United States v. Goldman, 439 F.Supp. 337, 348 (S.D.N.Y.1977); United States v. Grosso, 225 F.Supp. 161, 175 (W.D.Pa.1964); United States v. Sawyer, 213 F.Supp. 38, 42 (E.D.Pa.1963). Similarly, a court cannot properly quash a criminal information merely because it believes the accused has been improperly charged or has a defense to the crime with which he has been charged. Commonwealth v. Meoli, supra.

In this case, the suppression of testimony of the state policemen was also error. Trooper Breniman, in the investigation of a possible shooting, could properly enter upon the McKeirnan land to make inquiry. See: Commonwealth v. Shannon, 320 Pa.Super. 552, 467 A.2d 850 (1983). Accord: Causey v. State, 374 So.2d 406 (Ala.Crim.App. 1979); Younger v. State, 433 So.2d 636 (Fla.Dist.Ct.App. 1983); Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982); State v. Rand, 430 A.2d 808 (Me.1981); State v. Corbett, 15 Or.App. 470, 516 P.2d 487 (1973); State v. Seagull, 95 Wash.2d 898, 632 P.2d 44 (1981); State v. Aydelotte, 35 Wash.App. 125, 665 P.2d 443 (1983). The trial court recognized that Trooper Breniman possessed limited authority to approach members of the McKeirnan family to inquire about the shooting but held that the trooper’s presence was rendered illegal by his refusal to state his purpose or leave the premises upon request. The court concluded from this that Breniman had lacked probable cause to make an arrest and that his subsequent return, with assistance, for that purpose had also been illegal.

The law is clear, however, that even an unlawful arrest does not excuse an assault upon an arresting police officer. See: 18 Pa.C.S. § 505(b)(l)(i). See also: Commonwealth v. Meoli, supra 307 Pa.Super. at 55, 452 A.2d at 1035; Commonwealth v. Temple, 258 Pa.Super. 269, 275, 392 A.2d 788, 791 (1978). In Commonwealth v. Whitner, 241 Pa.Super. 316, 361 A.2d 414 (1976) (en banc), a police officer had stopped the defendant and was conducting a patdown search of his person when the defendant unexpectedly struck the officer with a suitcase which he had been carrying and fled. The Superior Court held that “regardless of whether [the police officer] was justified in stopping Whitner and searching him for weapons, Whitner committed a crime when he struck the officer with the suitcase.” Id., 241 Pa.Superior Ct. at 322, 361 A.2d at 417-418. Thus in the instant case, even if the attempt by state policemen to make an arrest had been unlawful, the persons being arrested could be prosecuted for assault offenses committed thereafter.

It follows, then, that evidence of the assault could not properly be suppressed. The testimony of the officers that the McKeirnans had assaulted them following their attempt to make an arrest could not be suppressed merely because the court believed the attempted arrest to be illegal. Any other rule would be an absurdity. Under a contrary rule, although an assault upon a police officer could not be justified by the policeman’s attempt to make an unlawful arrest, the Commonwealth would be precluded from proving the assault because its evidence would be subject to suppression. The effect of suppression would be to prevent prosecution for the assault. Such a rule would render ineffective a major portion of the Pennsylvania Crimes Code intended to protect law enforcement officers. It would have the effect of jeopardizing the safety of police officers by placing them at the mercy of any person, criminal or noncriminal, who believed he was being arrested unlawfully.

A purpose of the exclusionary rule, it is true, is to deter unlawful police conduct by disallowing the use of evidence obtained pursuant to an illegal arrest. See: United States v. Leon, — U.S. —, —, 104 S.Ct. 3405, 3415, 82 L.Ed.2d 677, 687-688 (1984); Michigan v. DeFillippo, 443 U.S. 31, 38 n. 3, 99 S.Ct. 2627, 2633 n. 3, 61 L.Ed.2d 343, 350 n. 3 (1979); Commonwealth v. Brown, 470 Pa. 274, 282, 368 A.2d 626, 630 (1976); Commonwealth v. Youngblood, 241 Pa.Super. 72, 78, 359 A.2d 456, 459 (1976). The rule does not apply, however, to seal the lips of law enforcement officers with respect to crimes committed in their presence during or following an arrest. They may testify to criminal conduct committed in their presence while making an arrest even though the arrest is subsequently determined to be unlawful.

Reversed and remanded for proceedings consistent with the foregoing opinion. Jurisdiction is not retained.

      . Breniman had arrested Robert McKeirnan several months earlier for driving while under the influence of alcohol.

      . A person’s reasonable expectation of privacy may extend to the curtilage surrounding his premises. Commonwealth v. Shannon, 320 Pa.Super. 552, 555, 467 A.2d 850, 852 (1983). Accord: Wattenburg v. United States, 388 F.2d 853, 857 (9th Cir.1968). Courts in other jurisdictions which have considered whether a property owner has a reasonable expectation of privacy in his driveway or access road have concluded that such an area is "semiprivate.” See: United States v. Ventling, 678 F.2d 63 (8th Cir.1982); United States v. Magana, 512 F.2d 1169 (9th Cir.1975); State v. Corbett, 15 Or.App. 470, 516 P.2d 487 (1973); W. LaFave, 1 Search and Seizure § 2.3(f) (1978).