author: OLSZEWSKI, Judge:

text:
    636 A.2d 1153
    COMMONWEALTH of Pennsylvania v. James GAUTIERI, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1993.
    Filed Feb. 1, 1994.

      Chris B. Little, Langhorne, for appellant.
    Stephen B. Harris, Asst. Dist. Atty., Warrington, for Com., appellee.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

James Gautieri appeals his judgment of sentence imposed after being found guilty of numerous sex crimes. Gautieri, a 60-year-old man, performed oral sex on and exposed himself to his 12-year-old nephew numerous times over a two-year period. The assaults occurred while Gautieri was “babysitting” his nephew; Gautieri would cajole the child into sexual contact by claiming that he was “trying to be [his] second father.” N.T. 9/29/92 at 15. Gautieri was convicted of statutory rape, indecent assault, corruption of minors, and involuntary deviate sexual intercourse [“IDSI”]. He now presents a litany of challenges to his IDSI conviction, most of which are constitutional in nature. We affirm.

I.

Gautieri claims that his prosecution for IDSI was improper because statutory rape provides a more specific statutory proscription against his conduct. He thus claims that where two statutes, one general and one specific, proscribe identical conduct, the Commonwealth may only prosecute a defendant under the specific proscription. We disagree.

A person commits statutory rape when he “is 18 years of age or older ... [and] engages in sexual intercourse with another person not his spouse who is less than fourteen years of age.” 18 Pa.C.S.A. § 3122. IDSI, on the other hand, is committed when one “engages in deviate sexual intercourse with another person who is less than 16 years of age.” 18 Pa.C.S.A. § 3123(5). The crucial distinction between the statutes is that statutory rape regulates any sexual intercourse, while IDSI regulates only “deviate sexual intercourse,” that is, oral or anal sex.

Gautieri correctly notes that prosecutions under a general statute are prohibited when more specific, or “special” provisions are available under the criminal code. Commonwealth v. Miller, 414 Pa.Super. 56, 606 A.2d 495, alloc. denied, 531 Pa. 639, 611 A.2d 711 (1992). This policy only applies, however, where two statutes “irreconcilably conflict,” making it apparent that the legislature meant for the proscribed conduct to be regulated by the more specific law. Commonwealth v. Warner, 504 Pa. 600, 476 A.2d 341 (1984).

Thus, “[e]ven if the two [statutory sections] have identical elements in the sense that the special wholly encompasses the general, so long as the general has elements outside the special, the Commonwealth is not precluded from pursuing both charges in one trial.”

Miller, supra 414 Pa.Super. at 62, 606 A.2d at 498 (quoting Warner, supra, 504 Pa. at 606-08, 476 A.2d at 344).

Here, we disagree first with Gautieri’s assertion that statutory rape is more specific than the IDSI statute. Statutory rape regulates all types of sexual intercourse, while IDSI regulates only specific types of sexual intercourse, namely “sexual intercourse per anus or per os.” Therefore, if any •statute in this case is more specific, it is IDSI. Second, the more general statute, statutory rape, contains an element outside of the more specific. The Commonwealth can prove statutory rape if it shows “sexual intercourse” that was not of the “per anus” or “per os” variety. Although in this case, involving a male perpetrator and a male victim, it may have been difficult for the Commonwealth to show any type of intercourse that was not “deviate,” we simply hold that since the general statute is not encompassed by the more specific, there is no bar against the Commonwealth pursuing convictions for both offenses at trial.

II.

Gautieri next presents a series of challenges to the constitutionality of the IDSI statute. He contends first that it violates the equal protection clause of the federal constitution because it irrationally discriminates against the following classifications of individuals: (1) unmarried, consenting couples, where one of the individuals is under the age of sixteen, (2) homosexuals (who are unable to marry), and (3) adolescents.

Gautieri has no standing to assert these claims. In order to challenge the constitutionality of a statute based on equal protection grounds, a party must be a member of the class against which the statute discriminates, else he has suffered no harm. Airway Arms, Inc. v. Moon Area School District, 498 Pa. 286, 446 A.2d 234 (1982), appeal dismissed sub. nom., Grant Oliver Corp. v. Moon Area School District, 459 U.S. 1094, 103 S.Ct. 711, 74 L.Ed.2d 942 (1983). Gautieri is neither a homosexual, an adolescent, nor a partner in an “unmarried couple” who are precluded from engaging in consensual sexual relations.

Even if Gautieri did have standing, we would find that the IDSI statute is constitutional. First, Gautieri claims that the statute irrationally discriminates against unmarried and homosexual persons because it proscribes conduct that would be legal if they were married. We disagree. IDSI does not proscribe consensual oral or anal intercourse, but rather acts of deviate sexual intercourse that are involuntary. This classification does not discriminate against unmarried adults (homosexual or otherwise) because “the Commonwealth does have a strong interest in preventing people from being forced against their will to submit to sexual conduct.” Commonwealth v. Maute, 336 Pa.Super. 394, 485 A.2d 1138 (1984).

Second, we disagree with Gautieri’s claim that the statute impermissibly classifies victims based on age. IDSI has the effect of making a child under the age of 16 unable, as a matter of law, to consent to acts of deviate sexual intercourse. 18 Pa.C.S.A. § 3123(5). This classification bears a reasonable relationship to a legitimate state interest, namely “an interest in fostering healthy surroundings to yield well-adjusted citizens, free of social and psychological scars,” and thus passes constitutional scrutiny. Commonwealth v. Waters, 334 Pa.Super. 513, 524, 483 A.2d 855, 861 (1984), cert. denied, 471 U.S. 1137, 105 S.Ct. 2679, 86 L.Ed.2d 697 (1985). We are unpersuaded by Gautieri’s argument that because the Model Penal Code has lowered its recommended age of IDSI victims to ten years, our IDSI statute is unconstitutional because it was not similarly changed. Gautieri claims that the age of “puberty” has been lowered in modern society has not been recognized by our IDSI law. We simply note that a change in the Model Penal Code does not render a version that differs from it unconstitutional. So long as the legislature has a justification for its actions, classifications based on age are constitutional. Such is the case here. If, as Gautieri claims, the law should be changed to acknowledge the lowering age of adolescents’ sexual involvement, his recourse is to the legislature. As written, however, the statute is constitutional.

III.

Gautieri also claims that the IDSI statute violates his right to privacy. Although it has never been held that a person is free to engage in unrestricted types of sexual conduct (including non-consensual oral sex with an adolescent), Gautieri contends that “[a]bsent a compelling state interest, the state is prohibited from interfering with persons’ sex lives and intruding into private matters of sexual expression.” Gautieri’s brief, at 28.

We will assume, without deciding, that in certain situations the Constitution’s elusive “right to privacy” prohibits the state from regulating a person’s private sexual affairs. As Justice Blackmun stated in Bowers v. Hardwick, 478 U.S. 186, 208-09, 106 S.Ct. 2841, 2853, 92 L.Ed.2d 140, 157 (1986) (Blackmun, J., dissenting): “[i]ndeed, the right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution’s protection of privacy.” Even the most liberal privacy ideology, however, recognizes that privacy can extend only to those cases where the conduct is consensual. At issue in Bowers was whether Georgia’s sodomy statute was constitutional as it applied to a male homosexual. Justice Blackmun, arguing that it violated privacy rights, stated:

This case involves no real interference with the right of others, for the mere knowledge that other individuals do not adhere to one’s value system cannot be a legally cognizable interest, let alone an interest that can justify invading the houses, hearts, and minds of citizens who choose to live their lives differently.

Id. at 213, 106 S.Ct. at 2856, 92 L.Ed.2d at 160.

In this case, Gautieri cannot claim that he has engaged in harmless consensual conduct that is regulated merely because the state adopts a value system different than his. He has cajoled a 12-year-old boy into acquiescing to acts of oral sex. This is nothing short of pedophilia, and to argue that he can somehow be protected by the Constitution because he committed the act in his home “is, at best, facetious” Id. at 195, 106 S.Ct. at 2846, 92 L.Ed.2d at 148. Therefore, even if there is a privacy interest that protects an individual who sincerely wishes to engage in private sexual acts with an adolescent, it is not Gautieri who will succeed in defining the right.

IV.

Gautieri also contends that the IDSI statute is void for vagueness, as it regulates freedom of sexual expression in terms that would require a reasonable person to guess which conduct is illegal. Specifically, Gautieri complains that the following definition of “sexual intercourse” is susceptible to differing interpretations: “In addition to its ordinary meaning, it includes intercourse per os or per anus ...” Gautieri’s brief, at 25 (quoting 18 Pa.C.S.A. § 3101) (emphasis Gautieri’s). Gautieri posits that the “ordinary meaning” of sexual intercourse could vary from person to person and include such innocuous sexual behavior as french kissing. This argument is spurious.

While we will entertain a facial challenge to a statute when it regulates first amendment freedoms, Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1975), we are not persuaded that this statute implicates a protected form of expression. Instead, it appears to us, and we are given no authority to hold otherwise, that the IDSI statute regulates conduct, plain and simple. In any event, Gautieri fails to recognize that the IDSI statute does not include the broad “sexual intercourse” definition of which he complains. IDSI regulates “deviate sexual intercourse,” which, as we have mentioned, includes only anal and oral intercourse. See 18 Pa.C.S.A. § 3101. The IDSI statute is not vague. Gautieri had ample notice of which types of “sexual intercourse” were proscribed.

Y.

Finally, Gautieri claims that the mandatory sentencing provisions of 42 Pa.C.S.A. § 9718 (providing for mandatory sentence for sexual crimes against infants) is unconstitutional because it violates his fundamental “right to liberty.”

Mandatory sentences are a constitutional exercise of the legislature’s power to fix the punishment for all crimes. Commonwealth v. O’Brien, 356 Pa.Super. 294, 514 A.2d 618 (1986), alloc. denied, 515 Pa. 576, 527 A.2d 537 (1987). Moreover, as far as Gautieri’s fundamental right to liberty is concerned, we simply remind Gautieri that a deprivation of civil liberty is unconstitutional only if it occurs without due process. Gautieri received a fair trial and sentencing hearing. This process was sufficient to render a deprivation of civil liberty constitutional.

Judgment of sentence affirmed.

McEWEN, J., concurs in the result.

      . The doctrine is best demonstrated in Commonwealth v. Vukovich, 301 Pa.Super. 111, 447 A.2d 267 (1982), where defendant was accused of forging a prescription to obtain drugs. This Court held that since this act was specifically made a crime under the Pharmacy Act, the jury was not entitled to consider whether defendant had also committed the more general offense of forgery. Id. at 117-19, 447 A.2d at 270.

      . We do not decide whether, for sentencing purposes, the offenses of statutory rape and IDSI merge. Gautieri does not present a challenge to his sentence and the notes from the sentencing hearing have not been transcribed. In any event, the double jeopardy clause of our state and federal constitutions does not seem to be implicated here. IDSI carries a mandatory minimum sentence of five years, and this is the precise sentence which Gautieri received. It would appear, therefore, that the trial court imposed no sentence for statutory rape.

      . “Sexual deviate intercourse” does proscribe all types of sexual intercourse with animals. As we understand Gautieri’s argument, it is limited to human interaction and, as applied, we must conclude that Gautieri was on ample notice of the statute's proscribed conduct.


source: Caselaw Access Project

author: HESTER, Judge: BECK, Judge,

license: Public Domain

text:
    636 A.2d 1157
    CHESTER COUNTY CHILDREN AND YOUTH SERVICES, Appellant, v. Donald E. and Middie CUNNINGHAM.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1993.
    Filed Feb. 1, 1994.

      Guy A. Donatelli, West Chester, for appellant.
    P. Richard Klein, West Chester, for appellees.
    Jean S. Polen, West Chester, for participating party.
    Before BECK, TAMILIA and HESTER, JJ.
   HESTER, Judge:

Donald and Middie Cunningham (“foster parents”) instituted this action by filing, on November 12, 1992, reports of intention to adopt their foster children, A.L.O., born January 21, 1988, and N.A.W., born January 20, 1991. The rights of the natural parents had been terminated on April 7, 1992, and appellant, Chester County Children and Youth Services (hereinafter “CYS”), had been awarded custody of the children. N.A.W. has been in the Cunningham home since January 30, 1991, when he was ten days old. A.L.O. has lived in the Cunningham home since August 22, 1991, when she was two and one-half years old.

CYS filed preliminary objections to the reports of intention to adopt alleging that the Cunninghams, as foster parents, lacked standing to seek adoption of the children. On February 23, 1993, following the submission of briefs on the issue and oral argument to the common pleas court, the court overruled the preliminary objections. On June 9, 1993, we granted the petition of CYS to appeal this interlocutory order pursuant to 42 Pa.C.S. § 702(b). Following our consideration of the applicable law and our review of the record, we are constrained to reverse.

Initially, we examine our standard of review:

Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Baker v. Brennan, 419 Pa. 222, 225, 213 A.2d 362, 364 (1965). The test on preliminary objections is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, 835 (1976). To determine whether preliminary objections have been properly sustained, this court must consider as true all of the well-pleaded material facts set forth in appellant’s complaint and all reasonable inferences that may be drawn from those facts. Feingold v. Bell of Pennsylvania, 477 Pa. 1, 4, 383 A.2d 791, 792 (1977); Pennsylvania Liquor Control Board v. Rapistan, Inc., 472 Pa. 36, 42, 371 A.2d 178, 181 (1976).

Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992).

The issue in this case, whether the Cunninghams have standing to proceed with their reports of intention to adopt A.L.O. and N.A.W., is controlled by the applicability and interpretation of In re Adoption of Hess, 530 Pa. 218, 608 A.2d 10 (1992). Heretofore, it has been well-established in this Commonwealth that foster parents do not have standing to seek adoption of their foster children when the child welfare agency does not consent to the adoption. See e.g., In re Adoption of S.C.P., 364 Pa.Super. 257, 527 A.2d 1052 (1987); Priester v. Fayette County Children and Youth Services, 354 Pa.Super. 562, 512 A.2d 683 (1986); and In re: Crystal D.R., 331 Pa.Super. 501, 480 A.2d 1146 (1984). The agency’s withholding of consent is not the significant aspect of this precept; rather, it is the nature of the limited relationship of the foster parents to the children. However, third parties who are not designated foster parents may seek adoption when they can establish that they stand in loco parentis to the child. In re Adoption of J.M.E., 416 Pa.Super. 110, 610 A.2d 995 (1992). The significance and parameters of the foster parent relationship were set forth in Crystal D.R. and contrasted in J.M.E. We need not restate them here.

The trial court determined that Hess is applicable to the instant case. In its opinion, the trial court concluded:

While it is true that Hess is a case that was instituted by grandparents rather than foster parents, the language in those cases [sic] suggests that the holding is broad enough to encompass any “party” who finds himself in the above quoted posture and needs recourse to the court to determine whether or not the withholding of consent by the agency is reasonable.

Trial court opinion, 2/23/93, at 2. The “posture” identified ?oy the trial court referred to a third party desiring to adopt a child when the child welfare agency refuses to consent. The trial court supported its position with the assertion that the Supreme Court used the term “party” rather than “grandparent” throughout the opinion. The trial court then stated that the “most compelling part of the holding states that, ‘... they should be permitted to participate in the proceeding just as any other individual or individuals who seek to adopt a child.’ ” Trial court opinion, 2/23/93, at 2.

We are not persuaded by the trial court’s reasoning and believe that the factual scenario of Hess was an exception to the general rule and is limited to the familial relationship which was present in that case. In rejecting the trial court’s reasoning, we note initially that Chief Justice Nix did not use the term “party” throughout the opinion as opposed to the designation “grandparent.” There are one or two instances when “party” is used because the word “grandparent” does not fit. A reading of the opinion clearly establishes that the Court considered the standing issue as it relates to a family member, who “has lived with the child, has obtained custody of his or her siblings, and has averred that the child’s best interests are contrary to those asserted by the agency----” In re Adoption of Hess, supra, 530 Pa. at 221, 608 A.2d at 12. Moreover, the fact that the Court indicated that a grandparent should be permitted to participate in the proceeding “just as any other individual” does not mean that a party need not establish his standing to proceed in a case.

Before we analyze whether Hess is applicable to the present matter, its factual background must be examined. Melanie and Matthew Hess were four and five years old, respectively, at the time litigation commenced. They had four siblings who were not involved in the case. At various times in their young lives, Melanie, Matthew, their siblings, and their natural parents resided with their maternal grandparents, the appellees in the case. Substantial care for all of the children was provided by the grandmother. In 1985, the natural parents removed the family from the appellees’ home. The grandparents later learned, however, that the children had been placed with a social service agency. Several of the children were returned to the care of the grandparents, but Melanie and Matthew were not; instead, they returned to the care of their natural parents in 1986. By the spring of 1987, the two children again were removed from their parents care and placed with the agency. The grandparents contacted the agency and obtained custody. In June, 1987, the natural father removed Melanie and Matthew from the grandparents’ home and placed them with Lancaster County Children and Family Services. Later efforts by the grandparents to have the two children returned to them were futile.

The natural parents then voluntarily relinquished their parental rights to Melanie and Matthew. Custody was awarded to Lancaster Family Services which placed the children with proposed adoptive parents who filed petitions to adopt. Upon learning this, the grandparents sought to intervene, to stay the adoption, and to obtain custody of the children. Lancaster Family Services filed preliminary objections alleging the grandparents lacked standing to intervene, which the trial court sustained. This court reversed, and the Pennsylvania Supreme Court affirmed our decision.

In analyzing the applicability of Hess to the instant case, we have no doubt that the Supreme Court clearly was persuaded by the significance of the relationship of the grandparents to the children. The Court repeatedly emphasized this fact. The entire analysis by the Supreme Court revolved around the relationship of the appellees to the children. Indeed, the Court relied upon specific statutory provisions exclusive to grandparents. For example, the Court noted that 23 Pa.C.S. § 2531(c) specifically envisions that grandparents might choose to adopt their grandchildren. The Court stated, “[T]he Act contemplates that a grandparent might choose to adopt his or her grandchild, and allows the grandparent to benefit from the relationship to the child by relieving the grandparent of the obligation to file a Report of Intention to Adopt.” In re Adoption of Hess, id., 530 Pa. at 224, 608 A.2d at 13. The Court went on to state that the various requirements indicate “that a relationship between the proposed adoptive parent and the adoptee is a relevant consideration.” Id. There is no such relationship in the instant case.

Moreover, the Supreme Court was disturbed by the fact that the trial court determined that the grandparents had no interest in the proceedings. The Supreme Court held that the grandparents should have been permitted to intervene and noted, “The trial court’s determination, however, begs the question of whether the grandparents were ever entitled to inject themselves into a series of proceedings designed to effectuate the best interests of two of their grandchildren.” Id., 530 Pa. at 223, 608 A.2d at 12. The Court obviously was persuaded by the fact that the grandparents’ efforts consistently were rebuffed by Lancaster Family Services which refused to give them any information until well after the parental rights had been terminated.

The majority in Hess also examined the Children and Minors Act, 23 Pa.C.S. § 5301 et seq. in resolving this issue. The Court noted the significance of the fact that the act demonstrates the legislature’s intent to encourage the maintenance of family relationships. Thus, again, the Court focused on the familial relationship of the grandparents to the children.

Finally, in discussing the parameters of the majority’s holding, Justice Zappala, in a dissenting opinion, stated, “I cannot conceive that the majority would allow an individual who was unrelated to the child to intervene in the proceeding----” In re Adoption of Hess, id., 530 Pa. at 233, 608 A.2d at 18 (Zappala, J., dissenting). This is but another confirmation for the position that it was the grandparents’ familial relationship to the children which controlled the outcome of the case.

We believe Hess is confined to the facts and considerations of that case, none of which is present herein. Instead, the established law in this Commonwealth, as most recently reaffirmed in In re Adoption of S.C.P., supra, controls the result in this case. We held in S.C.P. that 23 Pa.C.S. § 2531(a), which describes who may file a report of intention to adopt, does not encompass foster parents. We reiterated, “[F]oster parents have no standing to adopt a child placed in their custody until the absolute, unequivocal, written consent of the children’s legal custodian or other person whose consent was necessary was given.” Id., 364 Pa.Super. at 260, 527 A.2d at 1054, quoting Priester v. Fayette County Children and Youth Services, supra, 354 Pa.Super. at 566, 512 A.2d at 684. As we stated in S.C.P., application of this holding to the facts of the instant case effectively resolves this appeal.

Order reversed; the preliminary objections of Chester County Children and Youth Services are sustained; the reports of intention to adopt filed by Donald and Middie Cunningham are dismissed.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting.

Because I believe our supreme court’s decision in In re Adoption of Hess, 530 Pa. 218, 608 A.2d 10 (1992) should be interpreted to confer standing on appellees in this case, I must dissent. I disagree with the majority that Hess should be narrowly construed so as only to accord grandparents standing; I believe the Hess decision represents a recognition that in the ever-evolving arena of child custody and adoption, a party who has shown sincere and sustained concern for the welfare of a child should be permitted to appear in court and seek adoption.

Unlike the majority, I do not think that the Hess court was persuaded only by the significance of the grandparental relationship in reaching its decision. I am certain that the intensity of the grandparents’ concern for the children was a significant factor in the case. However, I believe that foster parents are just as capable of establishing genuine concern for their foster children and, further, of proving that their home is the appropriate place for a child to be permanently placed, notwithstanding a contrary opinion by the agency involved. In addition, I am mindful that the grant of standing does nothing more than allow an interested party to be heard in court; it surely does not amount to an award of custody nor does it change at all the standards by which the court decides the issue. Indeed the “best interests” of the child remain the paramount concern in these matters.

The Hess court’s references to other statutes which envision a grandparent’s desire to adopt a grandchild do support the holding on the case, but do not preclude the notion that foster parents also frequently move to adopt the children entrusted to their care. The idea that foster parents may one day wish to permanently adopt a foster child is not a novel one.

The majority further states that “the [Hess ] Court obviously was persuaded by the fact that the grandparents’ efforts consistently were rebuffed by Lancaster Family Services which refused to give them any information until well after the parental rights had been terminated.” In my opinion, any disapproval by the Hess court of the manner in which the agency proceeded in the case does not serve to bolster the argument that the Hess holding includes only grandparents, but instead supports the idea that an agency may act improperly in withholding its consent and, accordingly, an aggrieved party should be permitted to appear in court to contest the agency’s decision.

It is clear that in the absence of Hess, we would be required to hold that appellees have no standing in this matter. As noted by the majority, the law prior to Hess éxplieitly states that foster parents have no standing to seek adoption of their foster children. I would hold, however, that Hess represents a change in the law and that its holding should be interpreted to confer standing on appellees.

I strongly agree with the Hess court that “[a] child’s interests are best served when all those who demonstrate an interest in his or her welfare are allowed to be heard.” Hess, 530 Pa. at 227, 608 A.2d at 15. Here, appellees have acted as parents for these children for a period of years and, in the case of one of the children, virtually since birth. In my opinion, they have demonstrated an interest in the children’s welfare and should be permitted to appear in court. It may be that the trial court will agree with the agency that appellees are not an appropriate couple with whom to permanently place the children. However, I would not deny appellees an opportunity to persuade the court otherwise, particularly where what they are requesting is an opportunity to prove that they can provide a safe and nurturing home for the children.

      . Likewise, third parties lack standing to seek custody as against a natural parent except through a dependency proceeding, Gradwell v. Strausser, 416 Pa.Super. 118, 610 A.2d 999 (1992), or unless the third party can establish that he stands in loco parentis to the child. Rosado v. Diaz, 425 Pa.Super. 155, 624 A.2d 193 (1993), see also Van Coutren v. Wells, 430 Pa.Super. 212, 633 A.2d 1214 (1993).


author: POPOVICH, Judge:

text:
    636 A.2d 1162
    Alfred N. RICHARDS and Karen R. Richards, Appellees, v. SUN PIPE LINE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 8, 1993.
    Filed Feb. 2, 1994.

      Charles W. Craven, Philadelphia, for appellant.
    James Cunilio, Bryn Mawr, for appellees.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment entered in the Court of Common Pleas of Chester County, following a jury verdict in favor of appellees in the amount of $5,000.00, plus delay damages in the amount of $1,143.00. Having determined that the lower court incorrectly instructed the jury concerning the method by which damages were to be assessed, we reverse the judgment entered below and remand for a new trial.

Appellees reside at 10 Pine Road, Malvern, Pennsylvania. Their property is subject to an easement owned by appellant. The right-of-way agreement allows appellant to install and maintain a gas pipeline across the property. The agreement also provides that appellant shall pay “any damages which may arise to crops, fences, trees or buildings on said premises from the installation, maintenance and operation of said pipeline.” From the time appellees purchased their property in 1985 through the present, a gas pipeline, which is owned and operated by appellant, has run beneath the surface along the rear of appellees’ property. '

On June 3, 1988, appellant entered appellees’ property and damaged four trees which were growing within the easement. Appellant cut down a large Chinese chestnut tree and a large black cherry tree and substantially trimmed back two large pin oak trees. The removal and trimming of the trees were necessary to permit inspection and maintenance of the pipeline in the manner required by law.

Appellees filed the present action to recover damages for injuries to their property due to the loss of the trees. They claimed a loss of privacy which resulted in a decrease in market value of their home. Prior to trial, appellant admitted liability, and, accordingly, the trial was concerned with damages to the property only.

At trial, both appellees testified concerning the reduction in privacy created by the removal of the trees, and both testified that they believed the value of their property was reduced from $160,000.00 to $150,000.00. Appellees also presented the testimony of John D. Hucker, a certified arborist, who stated that the intrinsic, landscaping value of the trimmed and removed trees was $7,871.00. Appellant’s sole witness was Richard C. Mayberry, a certified real estate appraiser, who testified that the value of the property both before and after the removal and trimming of the trees was $157,000.00. In other words, he found no reduction in the value of the property. The jury returned a verdict in favor of appellees in the amount of $5,000.00.

Herein, appellant complains that the lower court incorrectly instructed the jury that evidence of the intrinsic value of the trees themselves was a relevant factor to consider when determining the diminution in the value of the property. In a related argument, appellant contends that the appellee’s expert should not have been permitted to testify as to the intrinsic, landscape value of the trees. Appellant also submits that appellees’ testimony concerning the reduction in the value of their property was legally incompetent. Finally, appellant asserts that since appellees introduced no legally competent evidence of a diminution in their property’s value, appellant is entitled to judgment notwithstanding the verdict. While we agree with appellant’s assessment of the measure of damages employed below, we reject its conclusions concerning the appellees’ testimony. Thus, for the reason that follow, we reverse the judgment and remand for a new trial. We also find that appellant is not entitled to judgment n.o.v.

Instantly, the lower court instructed the jury, in pertinent part, as follows:

The measure of damages when ornamental or fruit bearing trees or growing timber are cut is the difference of the value of the realty before and after. And by that we mean the value of the realty immediately before the cutting took place, and the value of the realty immediately after the cutting took place.
Furthermore, ladies and gentlemen, in cases where the before and after value of the land is an appropriate measure of damages, evidence of the value of the trees themselves is a factor to be considered in the diminution in the value of the land.
In cases where the before and after value of the land is an appropriate measure of damages, evidence of the value of the trees themselves is a factor to be considered in the diminution of the value of the land.
I use the term, a factor to be considered, advisedly because, in my understanding of the law, the value of the trees is not a dispositive figure, not a — is not dispositive of the question of the reduction of the value, but it is a factor that you may consider when considering what the reduction in the value was.

Trial Transcript, Volume II, pp. 179-180.

Contrary to the instruction set forth above, the measure of damages for injury to property, where the injury is deemed to be permanent, is the decrease in the fair market value of the property. Rabe v. Shoenberger, 213 Pa. 252, 256, 62 A. 854, 855 (1906); Ribblett v. Cambria Steel Co., 251 Pa. 253, 259, 96 A. 649, 651-652 (1916); Bumbarger v. Walker, 193 Pa.Super. 301, 164 A.2d 144 (1960); Kirkbride v. Lisbon Contractors, Inc., 385 Pa.Super. 292, 298, 560 A.2d 809, 812 (1989). Our Supreme Court has expressly stated:

... [W]e have on numerous occasions decided that, when standing timber is destroyed, the damages therefor are to be measured by determining the difference in the value of the land, upon which the trees grew, before and after the injury complained of. Mahaffey v. New York Central & Hudson River R.R. Co., 229 Pa. 285-287, 78 Atl. 143, 140 Am.St.Rep. 730; Savings & Trust Co. of Indiana v. Penna. R.R. Co. 229 Pa. 484-489, 78 Atl. 1039; Bullock v. Balto. & Ohio R.R. Co., 235 Pa. 417, 84 Atl. 421. There may be exceptional instances, when the evidence shows the trees in question to have had a selling value separate and apart from the land (for example, trees growing on a nursery farm), where a different rule would apply; but, under the facts at bar, there can be no doubt that the proper way to determine the pecuniary damage suffered by the destruction of the plaintiffs trees was through the application of the ordinary rule just referred to. The only testimony produced, however, relative to the damage thus suffered was the expression of opinion by two witnesses as to the actual money value of the trees without regard to their special connection with the plaintiffs farm, although one of them asserted that the real worth of the trees consisted in the ‘value for shedding storms and helping drouths.’ Neither of these witnesses showed any special qualification to express an opinion on the market value of trees; but aside from that, their testimony was based on a wrong theory of the measure of damage, and therefore was incompetent and should not have been received.

Ribblett, 96 A. at 652 (emphasis added).

Instantly, the lower court not only erred in instructing the jury that they could consider the actual monetary value of the trees as a factor in deciding whether the value of the realty had decreased, but also the court erred in permitting the testimony of appellee’s arborist to be admitted. Such testimony, as in Ribblett, supra, went to the wrong measure of damages and, as such, was incompetent. Since the court incorrectly instructed the jury concerning the measure of damages, a new trial is warranted.

Appellees cite Gross v. Jackson Tp., 328 Pa.Super. 226, 476 A.2d 974 (1984) and Bell v. Shetrom, 214 Pa.Super. 309, 257 A.2d 323 (1969), for the proposition that:

We have grave doubts that damage to trees can be ascertained only by showing the before and after values of the land on which the trees were growing.... Whatever approach is most appropriate to compensate for the harm should be used, including perhaps the intrinsic value of the trees to the then existing use of the land or the cost of replacement or restoration. Even if the before and after value of the land is an appropriate measure of damages, evidence would be competent as indicative of the diminution of the value of the land.

Gross, 476 A.2d at 976, quoting Bell, 257 A.2d at 324.

However, in both Gross, supra, and Bell, supra, the damage to real property was not permanent in nature. In Gross, supra, the plaintiffs intended to replant the hedges and shrubs that were destroyed. Therein, the intrinsic, i.e., actual, value of those plants was relevant to determine the cost of restoration (or repair) which is the proper measure of damages when the injury is not permanent. Kirkbride, 560 A.2d at 812. Similarly, in Bell, supra, plaintiff sought to amend his complaint to include not only a claim for damages based upon the diminution in the value of the land but also a claim for damages based upon the cost of replacing the injured trees. Thus, evidence of the actual value of the destroyed trees would be relevant therein to the issue of restoration.

We note, however, that to the extent Bell, supra, may be interpreted as permitting the use of intrinsic value of trees as indicative of the diminution in the value of the land, such an interpretation is not only based upon mere dicta, but also is in direct conflict with Supreme Court precedent. See, Sgarlat Estate v. Commonwealth, 398 Pa. 406, 414, 158 A.2d 541, 545 (1960) (“It is the fact of such loss, not its actual statement in dollars that is the permissible element affecting damage.”); Robe, supra; Ribblett, supra; Schlichtkrull v. M.P. Oil Corp., 301 Pa. 553, 152 A. 829 (1930). Thus, we restate herein the long-established rule that, when the damage to property is permanent, the measure of damages is the reduction in fair market value of the land. Rabe, supra. To the extent that the trees on appellees’ property were destroyed, it is the fact that the trees were destroyed that was relevant to determining damages, not the actual dollar value of those trees since those trees did not have a selling value separate and apart from the land. Ribblett, supra.

We now turn to appellant’s contention that appellees’ testimony about the reduction in the value of their property due to the removal of the trees was legally incompetent. Upon review, we find no error regarding the admission of said testimony. In Sgarlat, supra, our Supreme Court stated:

Finally, it is urged that the owner is competent to testify to the value of his property. In general he is competent, since he has at least a general knowledge of what he owns. Hencken v. Bethlehem Municipal Water Authority, 1950, 364 Pa. 408, 72 A.2d 264. But he is subject to the current rules and occupies no special position as a witness.

Sgarlat, 158 A.2d at 545. See also, Ernsberger v. Zoning Bd. of Adjustment, 109 Pa.Cmwlth. 373, 380, 531 A.2d 98, 102 (1987), appeal denied 517 Pa. 625, 538 A.2d 878; Glanski v. Ervine, 269 Pa.Super. 182, 409 A.2d 425 (1979).

Instantly, appellees testified concerning the value of their real estate. They testified that they believed the loss of privacy caused by the removal and pruning of the trees reduced the value of their property by $10,000.00. Although appellees testified that had not performed any “market” study in arriving at the $10,000.00 figure, they did state that they based their valuation upon information learned about local property values at the time they purchased their residence in 1985. In particular, appellees testified that when they purchased their home they also looked at other homes of similar size which had larger lot sizes. Despite having larger lots, those- houses were less expensive because, in appellees’ opinion, they lacked trees for aesthetics and privacy.

Upon review, we find appellees’ testimony concerning the value of their property was competent. The fact that they were not “experts” in the field of real estate valuation did not render their testimony incompetent. “The real owner is deemed qualified, by reason of his relation as owner, to give estimates of the value of what he owns regardless of Ms knowledge of property values, and the weight of such evidence is for the jury.” Pavloff v. Clairton, 146 Pa.Super. 158, 159, 22 A.2d 74, 75 (1941) (emphasis added).

Since we find that the testimony of appellees concerning the value of their property before and after the removal and pruning of the trees was competent, we find no basis upon which to award appellant judgment n.o.v. As stated many times, judgment n.o.v. should be granted only in the clearest of cases, and all doubts should be resolved in favor of the verdict. Golibart v. Reamer, 415 Pa.Super. 623, 610 A.2d 56 (1992); Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991), appeal denied, 530 Pa. 644, 607 A.2d 254. However, as we previously determined, the lower court erred in instructing the jury on the proper measure of damages and also erred in permitting appellees’ expert to testify concerning the intrinsic value of the trees. Accordingly, we reverse the judgment entered below and remand for a new trial.

Judgment reversed. Case remanded for new trial. Jurisdiction relinquished.

      . Instantly, there is no dispute as to the permanent nature of the injury to appellees' property since the trees may not be replaced within the easement, and, even if they were replaced, it would be twenty-five to thirty years before they attained the same stature as those removed.


author: FORD ELLIOTT, Judge:

text:
    636 A.2d 1166
    COMMONWEALTH of Pennsylvania v. Dwayne R. RHOADS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1993.
    Filed Jan. 26, 1994.

      David Crowley, Bellefonte, for appellant.

      J. Karen Arnold, Asst. Dist. Atty., Bellefonte, for the Com., appellee.
    Before DEL SOLE, FORD ELLIOTT and HOFFMAN, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the judgment of sentence entered on September 14, 1992. The only issue on appeal is whether the trial court properly sentenced appellant under two separate subsections of the simple assault statute on the basis of one criminal act. This single issue is meritorious, and as a result, we reverse.

The relevant facts underlying the case sub judice are that appellant was arrested on August 22, 1990, and charged with two subsections of aggravated assault, recklessly endangering another person, two subsections of simple assault and furnishing alcohol to minors related to an incident which occurred that same day. The jury acquitted appellant of aggravated assault but convicted him of both counts of simple assault, recklessly endangering another person, and furnishing alcohol to minors. On April 15,1991, the trial court sentenced appellant to two consecutive periods of incarceration of one year to two years for simple assault and recklessly endangering another person. The sentence was appealed to this court and this court vacated the judgment of sentence and remanded for resentencing because it ruled that simple assault merged with reckless endangerment for sentencing purposes, 423 Pa.Super. 638, 616 A.2d 719.

The trial court then resentenced appellant on September 14, 1992, to two consecutive periods of incarceration of one to two years for two different subsections of the simple assault statute, 18 Pa.C.S.A. § 2701(a)(1) and (a)(2). Appellant received no sentence for the reckless endangerment offense and received a consecutive six-month to one-year sentence for furnishing alcohol to minors. Appellant filed another Motion to Modify which was denied by order of October 13, 1992. The appeal is properly before us for disposition.

The only issue on appeal is one of first impression. We must determine whether the trial court properly sentenced appellant under two different subsections of the simple assault statute for the commission of one act. Appellant argues that this sentence is illegal because the statute provides for alternative pleading and cannot serve as a basis for separate punishments for the violation of one criminal statute where there is only one criminal act. We agree.

The Pennsylvania Supreme Court in Commonwealth v. Shannon, 530 Pa. 279, 608 A.2d 1020 (1992), addressed this identical issue as related to the involuntary deviate sexual intercourse (“IDSI”) statute. While we recognize that the Shannon opinion garnered only a plurality of the votes (per opinion of Zappala, J., joined by one Justice with two Justices concurring in result, one Justice dissenting on the sentencing issue, and one Justice not participating), we believe that the reasoning of the plurality is compelling and we adopt that rationale in this case. In Shannon, the plurality held that the sentencing court erred when it imposed separate sentences upon the defendant for violating separate subsections of the IDSI statute arising from a single act. The court observed that the statutory framework provided for alternative means of establishing a single harm, involuntary deviate sexual intercourse. The first two subsections of 18 Pa.C.S.A. § 3123 contemplated the use of force. Subsections (3) and (4) indicated that neither an unconscious nor mentally deficient person may engage voluntarily in deviate sexual intercourse. Finally, subsection (5) identified another category of person, a child under the age of 16, as being incapable of voluntarily engaging in such conduct. The statute is phrased in the disjunctive and the court stated that the operative word “or” in subsection (4) suggested that each subsection of the statute provided an alternative basis upon which the crime of involuntary deviate sexual intercourse could be established. As a result, the court held that the imposition of separate sentences for the two counts of IDSI arising from a single act was beyond the authority of the trial court.

Likewise, in the instant case the simple assault statute is phrased in the disjunctive, and each subsection of the statute provides an alternative basis for finding culpability. The relevant statute provides in pertinent part:

Simple Assault
(a) Offense defined. — A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly weapon; or
(3) attempts by physical menace to put another in fear of imminent serious bodily injury.

18 Pa.C.S.A. § 2701.

Although we recognize that the jury found that appellant’s conduct established culpability under both §§ 2701(a)(1) and (a)(2), this did not authorize separate and consecutive sentences under both subsections. Appellant shot the victim in the chest, believing that the gun was not loaded. There was only one criminal act. An examination of the statute in this case, as in the Shannon case, suggests that the legislature intended each separate subsection to establish an alternative basis for culpability rather than each representing the commission of a separate crime for sentencing purposes. Hence, we reach the same conclusion as the Shannon court.

As this court stated in Commonwealth v. Whetstine, 344 Pa.Super. 246, 496 A.2d 777 (1985), “... in order to support the imposition of more than one sentence, it must be found that the defendant’s conduct constituted more than one injury to the Commonwealth.” Id. at 251, 496 A.2d at 779-780. In this case appellant engaged in one underlying act of simple assault and the Commonwealth suffered one injury as a result. This is not a situation where different criminal offenses are involved rather there is but one offense and alternative bases of culpability for that offense.

Finally, we find the Commonwealth’s reliance on Commonwealth v. Ritchey, 313 Pa.Super. 238, 459 A.2d 828 (1983), and Commonwealth v. Ostolaza, 267 Pa.Super. 451, 406 A.2d 1128 (1979), to be misplaced. This court in both cases examined subsections of a criminal statute and found them not to represent lesser included offenses of one another. In Ritchey, this court held that 18 Pa.C.S.A. § 2702(a)(4), misdemeanor aggravated assault, is not a lesser included offense of 18 Pa.C.S.A. § 2702(a)(1), felonious aggravated assault, and therefore the trial court did not err in failing to give a § 2702(a)(4) instruction in the case. The court reasoned that when the two subsections were read together, subsection (4) contained an element (attempt to cause harm with a deadly weapon) that was not found in the conduct proscribed by subsection (1).

In Ostolaza, this court, in examining the subsections of 18 Pa.C.S.A. § 3701(a)(1) for the crime of robbery determined that the subsections of the robbery statute are not lesser included offenses of one another. Rather, the court determined that the subsections described distinct types of conduct which would constitute the crime of robbery.

The Commonwealth would argue that Ritchey and Ostolaza are supportive of its position that the convictions under subsections 18 Pa.C.S.A. § 2701(a)(1) and (a)(2) do not constitute lesser included offenses, hence, do not merge and therefore can support separate sentences. However, the Commonwealth has extended the rationale of these two cases far beyond their holdings. To the contrary, we find the Ritchey and Ostolaza cases supportive of our disposition today. The various subsections in question in those cases did not constitute lesser included offenses of one another, in point of fact, a more critical reading of the rationale of these cases indicates that these subsections represented alternative bases of culpability upon which an actor’s conduct might be judged. However, while a defendant’s conduct might fall under more than one subsection, it does not then follow that more than one punishment is authorized. We agree with appellant that such an extension of logic runs afoul of fundamental principles of double jeopardy prohibiting multiple punishments for the same offense. Clearly, the Ritchey and Ostolaza decisions did not hold that a defendant can be given consecutive sentences under two separate subsections of the same statute for the same conduct.

Hence, we conclude from the fair import of the statute’s terms, including its three subsections, that 18 Pa.C.S.A. § 2701 reveals a design to proscribe one harm, simple assault. The imposition of separate sentences for the two counts of simple assault arising from a single act was an illegal sentence.

Accordingly, we vacate and remand the sentence to the Court of Common Pleas of Centre County for resentencing consistent with this opinion.

Accordingly, sentence vacated. Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. §§ 2701(a)(1) and (a)(2).

      . 18 Pa.C.S.A. § 6310.1.

      . Involuntary deviate sexual intercourse
      A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
      (1) by forcible compulsion;
      (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
      (3) who is unconscious;
      (4) who is so mentally deranged or deficient that such person is incapable of consent; or
      (5) who is less than 16 years of age.
      18 Pa.C.S.A. § 3123.

      . We recognize that in dissent in Shannon, Justice Larsen takes the position that the Commonwealth suffered two injuries from the defendant's single act in that he not only performed oral sex upon the victim by threat of forcible compulsion but also performed oral sex upon a victim under the statutory age. However, his reliance upon Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), appears to be misplaced. In Rhodes the defendant violated two different statutes rather than one, and the Commonwealth had different protected interests with respect to each statute. Coincidentally, as applies to the instant appeal, we note that in Rhodes the Commonwealth had charged the defendant under four subsections of the rape statute. The evidence was sufficient to convict the defendant under three of the subsections but the court correctly sentenced him for only one offense of rape. Likewise in this case, although the jury convicted appellant under two subsections of the simple assault statute, he may only be sentenced for the one offense of simple assault.


author: CIRILLO, Judge.

text:
    636 A.2d 1169
    COMMONWEALTH of Pennsylvania, v. Martina M. SHIFLET, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1993.
    Filed Jan. 25, 1994.

      Anthony E. Miley, East Berlin, for appellant.
    Martha J. Duvall, Asst. Dist. Atty., Gettysburg, for Com., appellee.
    Before CIRILLO, HUDOCK and CERCONE, JJ.
   CIRILLO, Judge.

Martina M. Shiflet appeals from a judgment of sentence entered in the Court of Common Pleas of Adams County. We vacate and remand for a new trial.

On February 4, 1992, Trooper Ivan Taylor of the Pennsylvania State Police conducted a traffic stop of a vehicle in which appellant Shiflet was a passenger. The stop led to the arrest of the two other persons who were in the car with Shiflet. The driver was arrested for driving under the influence (DUI) and the other passenger was arrested for disorderly conduct. When the driver was asked to exit the vehicle to perform a sobriety test, Shiflet was also asked to exit the vehicle. She did so, with her purse in hand, and remained outside of the car during the arrests.

Shiflet did not have a valid driver’s license and, since she could not lawfully drive herself home, Trooper Taylor offered her a ride to the police barracks. Upon Shiflet’s acceptance of this offer, Trooper Taylor seized Shiflet’s purse from underneath her arm and, without asking Shiflet’s consent, began to search through its contents. The trooper came across a small leather pouch and, suspecting it contained drug paraphernalia, requested that it be opened. Shiflet consented and Taylor discovered a small amount of marijuana and three marijuana pipes. Shiflet was subsequently arrested and charged with possession of a small amount of marijuana and possession and intent to use the drug paraphernalia.

A suppression motion was filed and a hearing was held. At the hearing, Trooper Taylor gave the following reason for searching Shiflet’s purse: “I never even asked for consent to search her purse. It’s my customary practice for officer safety, as I stated earlier, anytime I transport a female subject with a purse to look inside the purse for any type of weapons.” (N.T. p. 15, 08-24-92). Shiflet’s motion to suppress the seized evidence was subsequently denied by the Honorable Oscar F. Spicer. A jury trial was held and Shiflet was found guilty of the offenses charged. Post-trial motions were then filed. Judge Spicer denied Shiflet’s post-trial motions, finding that the intrusion into Shiflet’s purse was justified by the arrests of the other vehicle occupants. Shiflet was sentenced to one year’s probation, plus a $50.00 fine, plus costs on the paraphernalia charge. Shiflet has filed a timely appeal and raises the following issues for our consideration:

(1) Whether the search incident to an arrest exception can justify a warrantless search and seizure of appellant’s purse when neither appellant, nor her purse were inside a vehicle at the time of the search, and there was no probable cause of articulable suspicion to believe appellant was involved in criminal activity, and appellant was not under arrest prior to the search.
(2) Whether a warrantless search and seizure of appellant’s purse by a police officer can be constitutionally justified when there is something less than even a reasonable articulable suspicion to believe appellant was involved in any criminal activity on February 4, 1992.

When reviewing the ruling of a suppression court, we must determine whether the factual findings are supported by the record and, assuming there is support in the record, we are bound by the facts and may reverse if the legal conclusions drawn from those facts are in error. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985). Here, there is no dispute as to the facts, thus, we will address only the validity of the inferences and legal conclusions drawn by the suppression court.

The Commonwealth argues that the trooper had the legal authority, pursuant to a valid arrest, to search the passenger compartment of the vehicle. In support of this position, the Commonwealth contends that the purse was only a few feet away from the car when it was searched, the search was within a few minutes of two valid arrests, and DUI includes the use of a controlled substances as well as alcohol. We are not persuaded by these arguments and, therefore, find that the search of Shiflet’s purse was not constitutionally sanctioned.

The Fourth Amendment protects all citizens from unreasonable searches and seizures by government officials. Commonwealth v. Slaton, 530 Pa. 207, 215, 608 A.2d 5, 9 (1992) (citing Michigan v. Tyler, 436 U.S. 499, 506, 98 S.Ct. 1942, 1948, 56 L.Ed.2d 486 (1978)). To properly seize evidence, an official must act pursuant to either a valid warrant or one of the exceptions to the warrant requirement. Id. Here we analyze the search incident to lawful arrest exception as it relates to the instant set of facts.

The Commonwealth cites, and we are cognizant of, the recent trend in the law on this issue. Specifically, it has been held:

‘When a policeman has made a lawful arrest of the occupant of an automobile ... he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.’ Commonwealth v. Jones, 396 Pa.Super. 304, 307, 578 A.2d 527, 529 (1990) (quoting New York v. Belton, 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768] (1981)), alloc. denied, 526 Pa. 647, 585 A.2d 467 (1991). Moreover, the officer may also examine the contents of any containers found within the passenger compartment. Commonwealth v. Henry, 358 Pa.Super. 306, 311, 517 A.2d 559, 564 (1986). In short, “a search incident to the arrest requires no additional justification.” Id., 517 A.2d at 564 (citing United States v. Robinson, 414 U.S. 218 [94 S.Ct. 467, 38 L.Ed.2d 427] (1973)).

Commonwealth v. Mickell, 409 Pa.Super. 595, 606-07, 598 A.2d 1003, 1009 (1991), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992).

We are not persuaded that the case law cited above is applicable to the circumstances herein. Shiflet had not been subject to arrest before her purse was seized, and was standing outside of the vehicle with her purse when the search and seizure took place. We refuse to extend the search incident to arrest exception to these circumstances.

The Commonwealth cites Commonwealth v. Guzman, 417 Pa.Super. 364, 612 A.2d 524 (1992) in support of its position that even though the purse had been moved prior to its search, the search is still justified so long as the search could have been legally valid at the time and site of the arrest. The reliance on Guzman for this proposition is misplaced under the circumstances in the instant case. In Guzman, police officers seized appellant’s satchel from his person at the time of his arrest. Appellant objected to both the initial search of the bag and to the continued search of the bag at the police barracks. The court held that once an accused has been lawfully arrested and is in custody, anything that was subject to search and seizure at the time and place of arrest may be lawfully searched without a warrant. Id. at 370, 612 A.2d at 527. Again, Shiflet was not the “accused;” she was not placed under arrest, nor was she in “custody” until after the search and seizure took place.

The case most analogous to the instant set of facts is Commonwealth v. Stagliano, 273 Pa.Super. 237, 417 A.2d 627 (1979). In Stagliano, the defendant was a passenger in a car that had been pulled over for a speeding violation. The driver of the car, when asked for his license and registration, could produce neither, whereupon the driver was asked to exit the vehicle. The trooper then observed a clear plastic bag containing a green substance protruding from the glove compartment and, believing it to be marijuana, placed the driver under arrest. The search of the driver and the interior of the car produced no weapons or further evidence of any crime. Nevertheless, the trooper seized the passenger’s pocketbook, opened it, discovered a “straight razor” four inches in length, and placed the passenger under arrest. A subsequent search of the purse revealed methamphetamine, a controlled substance.

The Commonwealth in Stagliano, like in the instant appeal, argued that the dangers surrounding an automobile arrest fully justified the seizure of the passenger’s purse as incident to the lawful arrest of the operator. Id. at 242, 417 A.2d at 629. In vacating the passenger’s judgment of sentence, however, we specifically held:

[T]he police may not justify a seizure of a closed container located on the passenger’s side of the vehicle solely as incident to the arrest of the operator, when the police have no reason to believe that the passenger is either involved in any criminal activity or an apparent confederate of the operator.

Id. at 247, 417 A.2d at 632 (emphasis added); see also 29 A.L.R. 4th 771, §§ 3, 5. While this holding appears to be at odds with a later line of cases, supra, it is nonetheless still good law and, in this court’s opinion, lends additional support to our conclusion that Shiflet is not the type of defendant for whom the search incident to arrest exception was meant to apply. To hold otherwise would set a rather dangerous precedent in terms of how far this exception could be extended. We are not willing to extend it so far as to rule that Shiflet, a passenger turned bystander, must sacrifice her Fourth Amendment rights simply because her companions have been arrested. Third party bystanders do not give up their right to require reasonable searches and seizures merely due to their presence at the scene of an arrest. See Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Commonwealth v. Martin, 423 Pa.Super. 228, 620 A.2d 1194 (1993).

Thus, insomuch as the Commonwealth suggests no other exception to the Fourth Amendment warrant requirement to justify the search and seizure, we find that the suppression court erred in its legal conclusions, Cortez, supra, and the evidence should have been suppressed.

We vacate and remand for new trial. Jurisdiction relinquished.

      . The law appears to be moving away from the earlier holding in Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620 (1980), where the Pennsylvania Supreme Court held that a warrantless search of luggage removed from a car was invalid where the defendant was handcuffed, and the luggage was in exclusive control of the police at the time of the search. Importantly, however, this case has never been expressly overruled.


author: CAVANAUGH, Judge:

text:
    636 A.2d 1172
    Joyce E. LEHMAN, Appellee, v. Thomas L. LEHMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1993.
    Filed Jan. 27, 1994.

      Kenneth C. Sandoe, Myerstown, for appellant.
    Keith L. Kilgore, Lebanon, for appellee.
    Before CAVANAUGH, McEWEN and DEL SOLE, JJ.
   CAVANAUGH, Judge:

Did the trial court err in finding that monthly installment payments made for the purchase of a business are not deductible in calculating husband’s net income?

The appeal is from an order of spousal support. Husband and wife were married in 1953 and separated in 1992. In 1989, husband purchased two related business enterprises for $450,000. He and his wife signed a promissory note for $350,000. (reduced to about $295,000. at the time of hearing in September, 1992). The procedure devised to pay this obligation was to deduct a biweekly sum from husband’s paycheck from the corporation to be paid to the seller of the businesses. The note is recorded by a lien on the parties’ former residence, now occupied by wife. The payments are for stock in the two businesses which is owned by husband. The trial court, agreeing with the hearing officer, found that the installment payments were not deductible in calculating the net income of the husband.

Appellant’s argument is that “income” may be equated to cash flow and that the sums paid here for the purchase of the businesses are not available to husband for support payments. It is argued that since wife signed the promissory note she would be deprived of any support if husband lost the businesses and consequently his cash stream.

We agree with the trial court. While net income does not include taxes and other mandated deductions, 23 Pa.C.S.A. 4302, this is far different from the adoption of a convenient payment plan for the purchase of a business by the husband and to be owned by him. Nor, may this payment scheme be fairly seen as a deduction from net “income from business” as provided under Pa.R.C.P. 1910.16-5(b)(2). More pertinently, 1910.16-5 provides that only certain taxes and other payments commonly seen as a cost of gainful employment may be subtracted from gross income in the determination of net income.' Payments for purchase of the employing business is clearly not contemplated in this category of expense. The fact that wife agreed to sign the judgment note where husband purchased the business for himself, cannot in any way be interpreted to place husband’s payments for his business as a form of mortgage payment for the'parties’ former marital residence. Pa.R.C.P. 1910.16 — 5(g).

Order affirmed.

      . McAuliffe v. McAuliffe, 418 Pa.Super. 39, 613 A.2d 20 (1992) a case cited by appellant and one which we look to for a clear statement of our present scope of review, is in fact no solace to appellant’s argument as the McAuliffe case is, in part, grounded on the concept that one may not construct business income in such a way as to create a form of self-impoverishment to evade support obligations.


author: WIEAND, Judge:

text:
    636 A.2d 1173
    COMMONWEALTH of Pennsylvania, v. Melvin SWERDLOW, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 10, 1993.
    Filed Feb. 4, 1994.

      John M. Belli, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

Melvin Swerdlow was tried non-jury and was found guilty of theft by receiving stolen property, criminal trespass and criminal conspiracy in connection with the January 4, 1991, burglary of two homes located at 7643 and 7645 Overbrook Avenue in Philadelphia. Following the denial of post-trial motions, Swerdlow was sentenced to serve concurrent four (4) year terms of probation on his convictions for criminal trespass and conspiracy. Sentence was suspended on his conviction for theft by receiving stolen property. On direct appeal from the judgment of sentence, Swerdlow argues that the evidence presented at his trial was insufficient to sustain the trial court’s findings of guilt. After careful review, we are constrained to agree; and, therefore, we reverse the judgment of sentence and order that appellant be discharged.

The trial judge, in her post-trial opinion, summarized the evidence from appellant’s trial as follows:

At approximately 11:30 on the morning of January 4, 1991, Haverford Township Investigators Daniel Wallower and William Walker went to 7641 Overbrook Avenue in the city of Philadelphia to execute a warrant for the arrest of Martin Gruschin, a co-defendant in this case. Upon arriving at that address, the Inspectors heard a burglar alarm sounding two doors away at 7645 Overbrook Avenue. A woman then pulled up in a car and identified herself as a relative of Annette Bruno, the owner of 7645 Overbrook Avenue. As the Inspectors spoke to the woman, Inspector Wallower noticed the defendant, Melvin Swerdlow, open the front door of his house at 7641 and waive [sic] to the Inspectors. The Inspectors had previously met the defendant as they attempted to locate the co-defendant Martin Gruschin.
The Inspectors then drove around the corner to the alley behind 7645 Overbrook Avenue. There they noticed Mr. Gruschin walking away from 7645 Overbrook Avenue and toward the City Line Shopping Center, which is located just behind the houses on the 7600 block of Overbrook Avenue. Inspector Wallower exited the car and followed Mr. Grus-chin into a Thrift Drugs drug store. Inside the store, Inspector Wallower observed Mr. Gruschin standing in a check-out line. Inspector Wallower came up behind Mr. Gruschin and escorted him to an empty check-out counter a few feet away. The Inspector then identified himself and informed Gruschin that he was under arrest. Coins, cash, and jewelry began “flyfing] out of the defendant’s hands” as he was arrested and lead [sic] outside. These items were recovered by a Thrift Drugs store employee who immediately turned them over to the inspectors. The jewelry recovered from Gruschin consisted of six rings which were later identified as having been stolen from the residence at 7643 Overbrook Avenue.
Since the suspected burglary occurred within the city of Philadelphia, the Inspectors notified the Philadelphia Police Department and the West Detectives [Division]. Detective Joseph W. Capone and other detectives of the Philadelphia Police Department’s Narcotics Forfeiture Unit were assigned to investigate the case. They arrived at the 7600 block of Overbrook Avenue while Gruschin was still in custody at the scene.
When the Philadelphia Police arrived at the scene, co-defendant Gruschin led them and the Haverford Township Inspectors to a garage located at the rear of 7643 Over-brook Avenue. A panel had been kicked out of the garage door. [The owner of 7643 Overbrook Avenue, Ms. Margo Kinno, knew the defendant Melvin Swerdlow to be her next door neighbor, but she had never given him permission to use her garage.] Inside the garage Inspector Wallower found a pillowcase containing jewelry, a small television, a telephone answering machine, a flashlight and articles of clothing. These items were confiscated by the Haverford Township police, turned over to West Detectives [Division], and later returned to their owners.
On the afternoon of January 4, 1991, Annette Bruno, the owner of 7645 Overbrook Avenue, filed a formal report of the burglary of her residence. An initial investigation by the Philadelphia Detectives failed to reveal the manner in which the co-defendant Gruschin and the defendant Melvin S[w]erdlow gained entry into Annette Bruno’s house. On January 8, 1991, Detective Capone returned to the house to inspect for signs of entry. Detective Capone observed that all the usual means of entry — doors, windows, skylight— were secure. He then went to the front bedroom on the second floor, where he discovered that a ceiling panel had been removed from a closet ceiling. Further investigation revealed a 24 inch high crawl space above the bedroom ceiling and a hole in the party wall between the houses at 7645 Overbrook Avenue and 7643 Overbrook Avenue — the party wall between 7645 Overbrook Avenue and 7647 Over-brook Avenue was intact.
Detective Capone then went to 7643 Overbrook Avenue, which is the residence of Ms. Margo Kinno. The detective told her that he was investigating a burglary of 7645 Overbrook Avenue, and that it appeared that someone had gained entry to the residence through the crawl space above her front, second floor bedroom. Ms. Kinno then gave Detective Capone permission to inspect the crawl space. This inspection revealed a break in the party wall between Ms. Kinno’s residence and the Swerdlow residence at 7641 Overbrook Avenue. [Ms. Kinno testified at trial that it would cost her $600.00 to repair the break in her party wall.]
Detective Capone then asked Ms. Kinno if she had noticed anything missing from her house. At first she said that she had not, but after looking around, she discovered that some of her rings were missing. At trial, Ms. Kinno testified that on the day of co-defendant Martin Gruschin’s arrest, January 4, 1991, she locked her front door and left for work at approximately 7:30 a.m. (the rear door had been nailed shut some time before) and that there were no signs of forced entry when she returned home at about 4:00 p.m.
Detective Capone left Ms. Kinno’s residence and went to the Swerdlow house at 7641 Overbrook Avenue. There the Detective had a conversation with the defendant Melvin Swerdlow and the defendant’s mother. During the course of this conversation, the Detective asked the defendant if he recalled anything about January 4, 1991, the day of the burglaries. The defendant responded that he remembered talking to the Haverford Township Inspectors outside his house. Detective Capone then asked the defendant’s mother if he could inspect her second floor, front bedroom, which he then did.

Trial Court Opinion at pp. 1-5 (footnotes incorporated into text).

Based upon these facts the trial court concluded that appellant and Martin Gruschin had conspired to use appellant’s house to break into crawl spaces above neighboring homes and thus gain entrance to such homes so that Gruschin could then steal jewelry and other property therefrom. With respect to appellant’s participation in this conspiracy, the trial court reasoned as follows:

That the defendant Melvin Swerdlow was involved in breaking through the party walls is evidenced, in part, by the fact that he resided in the Swerdlow residence, and thus had the opportunity to break through to the adjacent houses. Second, further evidence of a conspiracy is supplied by this court’s finding that the defendant engaged in the commission of the Bruno burglary by acting as lookout and attempting to distract the Haverford Township Investigators as co-defendant Gruschin attempted to flea [sic]. This finding is based on the fact that as Annette Bruno’s burglar alarm sounded, the defendant opened his front door and attempted to distract the Investigators by waving to them as Gruschin fled through the rear alley way.

Trial Court Opinion at pp. 6-7.

In evaluating a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Aulisio, 514 Pa. 84, 91, 522 A.2d 1075, 1079 (1987). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [thb] defendant’s innocence, but the question of any doubt is for the [factfinder] unless the evidence £be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943). However, even though “reasonable inferences must be drawn in the Commonwealth’s favor, the inferences must flow from facts and circumstances proven in the record, and must be of ‘such volume and quality as to overcome the presumption of innocence and satisfy the [factfinder] of the accused’s guilt beyond a reasonable doubt.’ ” Commonwealth v. Scott, 409 Pa.Super. 313, 315, 597 A.2d 1220, 1221 (1991), quoting Commonwealth v. Clinton, 391 Pa. 212, 219, 137 A.2d 463, 466 (1958). “The trier of fact cannot base a conviction on conjecture and speculation and a verdict which is premised on suspicion will fall even under the limited scrutiny of appellate review.” Commonwealth v. Scott, supra. See: Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975); Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966); Commonwealth v. Weaver, 309 Pa.Super. 509, 455 A.2d 1199 (1982).

The crime of criminal conspiracy is defined by statute as follows:

(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S. § 903(a). “An individual is guilty of conspiracy if, with the intent to promote or facilitate a crime, he or she agreed to aid another person in the attempt, solicitation, planning, or commission of the crime.” Commonwealth v. Neckerauer, 421 Pa.Super. 255, 268, 617 A.2d 1281, 1288 (1992) (en banc). “The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished.” Common wealth v. Keefer, 338 Pa.Super. 184, 190, 487 A.2d 915, 918 (1985). See also: Commonwealth v. Derr, 501 Pa. 446, 462 A.2d 208 (1983); Commonwealth v. French, 396 Pa.Super. 436, 440, 578 A.2d 1292, 1294 (1990), aff'd, 531 Pa. 42, 611 A.2d 175 (1992). “Therefore, a conviction for conspiracy requires proof of the existence of a shared criminal intent.” Commonwealth v. Sattazahn, 428 Pa.Super. 413, -, 631 A.2d 597, 602 (1993). See: Commonwealth v. Schomaker, 501 Pa. 404, 409-410, 461 A.2d 1220, 1222-1223 (1983); Commonwealth v. Horner, 497 Pa. 565, 570, 442 A.2d 682, 684 (1982).

“ ‘An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities.’ ” Commonwealth v. Kennedy, 499 Pa. 389, 395, 453 A.2d 927, 929-930 (1982), quoting Commonwealth v. Strantz, 328 Pa. 33, 43, 195 A. 75, 80 (1937). See also: Commonwealth v. Campbell, 353 Pa.Super. 178, 181, 509 A.2d 394, 395.(1986). “Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators sufficiently prove the formation of a criminal confederation.” Commonwealth v. Woodward, 418 Pa.Super. 218, 226, 614 A.2d 239, 243 (1992). See also: Commonwealth v. Kennedy, supra; Commonwealth v. Neckerauer, supra; Commonwealth v. Rogers, 419 Pa.Super. 122, 139, 615 A.2d 55, 63 (1992); Commonwealth v. Anderson, 381 Pa.Super. 1, 15-16, 552 A.2d 1064, 1071 (1988).

Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy. The presence of such circumstances may furnish a web of evidence linking an accused to an alleged conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred. Commonwealth v. Carter, 272 Pa.Super. 411, 416 A.2d 523 (1979).

Commonwealth v. Lamb, 309 Pa.Super. 415, 429, 455 A.2d 678, 685-686 (1983). See also: Commonwealth v. Tillery, 417 Pa.Super. 26, 31-32, 611 A.2d 1245, 1248 (1992); Commonwealth v. Cooke, 342 Pa.Super. 58, 67, 492 A.2d 63, 68 (1985); Commonwealth v. Olds, 322 Pa.Super. 442, 447-448, 469 A.2d 1072, 1075 (1983); Commonwealth v. Anderson, 265 Pa.Super. 494, 500-501, 402 A.2d 546, 549 (1979).

“To prove a criminal conspiracy the evidence must rise above mere suspicion or possibility of guilty collusion.” Commonwealth v. Burdell, 380 Pa. 43, 49, 110 A.2d 193, 197 (1955). See also: Commonwealth v. Yobbagy, 410 Pa. 172, 178-179, 188 A.2d 750, 753 (1963); Commonwealth v. Stein, 401 Pa.Super. 518, 527, 585 A.2d 1048, 1052 (1991); Commonwealth v. Frey, 264 Pa.Super. 212, 215, 399 A.2d 742, 743 (1979). The decided cases have held that mere association or mere presence at the scene of the crime is insufficient to prove a conspiracy unless the defendant had prior knowledge of his alleged co-conspirator’s criminal intent. Similarly, the defendant’s mere knowledge of the proposed crime is insufficient to convict him of conspiracy absent proof that he became an active participant in the criminal enterprise and that he had knowledge of the conspiratorial agreement. See: Commonwealth v. Allen, 425 Pa.Super. 615, 619, 625 A.2d 1266, 1269 (1993); Commonwealth v. Davenport, 307 Pa.Super. 102, 107-108, 452 A.2d 1058, 1061 (1982); Commonwealth v. Lynch, 270 Pa.Super. 554, 570, 411 A.2d 1224, 1232 (1979), aff'd in part and rev’d in part, 502 Pa. 359, 466 A.2d 991 (1983). See also: Commonwealth v. Ocasio, 422 Pa.Super. 272, 278-279, 619 A.2d 352, 355 (1993); Commonwealth v. Mercado, 420 Pa.Super. 588, 594-596, 617 A.2d 342, 345-346 (1992) (plurality opinion); Commonwealth v. Henderson, 249 Pa.Super. 472, 483, 378 A.2d 393, 398 (1977).

The evidence in the instant case, when viewed in the light most favorable to the Commonwealth, suggests that Martin Gruschin, appellant’s alleged co-conspirator, used a crawlspace located in the front bedroom of the home in which appellant resided with his mother, in order to break into and steal property from two neighboring homes. There was no evidence, however, that appellant had agreed to participate in the commission of these burglaries, or even that he knew of Gruschin’s activity. The relationship, if any, existing between Gruschin and appellant was not shown by any evidence at appellant’s trial. The evidence showed only that a neighbor, Margo Kinno, had on prior occasions observed Gruschin coming and going from the Swerdlow residence and that the Haverford Township Police had an arrest warrant for Grus-chin listing the Swerdlow home as his residence. Absent evidence of any relationship between appellant and Gruschin or evidence that appellant knew that Gruschin was committing burglaries of neighboring homes, there is simply no basis from which it can be inferred that appellant agreed to aid Gruschin in connection with such burglaries. There is nothing but the suspicion which arose because Gruschin may have stayed for a time in the home of appellant and his mother.

Given the paucity of the evidence connecting appellant with Gruschin’s crimes, the trial court’s conclusion that appellant was acting as a lookout is sheer speculation. It is not a legitimate inference to be drawn from any evidence in this case. The mere fact that appellant opened his door and waved to the Haverford Township Police when they arrived is alone insufficient to permit an inference that it was done with an intent to distract the police while Gruschin escaped. Without evidence that appellant even knew that Gruschin was then engaged in committing a burglary, it cannot be concluded logically that he was acting as a lookout when he waved to the police. To repeat, therefore, the trial court’s suggestion that appellant was acting as a lookout is simply unsupported by evidence and could have been based solely on speculation and suspicion. There is in the record received no evidence on which to find appellant guilty of conspiring with Grusehin to commit any of the burglaries.

Appellant’s convictions for criminal trespass and theft by receiving stolen property, therefore, must also fall. In finding appellant guilty of these offenses, the trial court concluded that appellant was responsible for the acts of his co-conspirator Grusehin. Because there was insufficient evidence to establish an unlawful confederacy, however, appellant cannot be deemed criminally responsible for Gruschin’s actions. The evidence does not support a finding that appellant was Gruschin’s accomplice. With respect to accomplice liability, the Superior Court has said:

An accomplice is one who “knowingly and voluntarily cooperates with or aids another in the commission of a crime.” Commonwealth v. Carey, 293 Pa.Super. 359, 373, 439 A.2d 151, 158 (1981). See: 18 Pa.C.S. § 306. See also: Commonwealth v. Jones, 213 Pa.Super. 504, 508, 247 A.2d 624, 626 (1968). To be an accomplice, “one must be an active partner in the intent to commit [the crime].” Commonwealth v. Fields, supra 460 Pa. at 319-320, 333 A.2d at 747; Commonwealth v. McFadden, 448 Pa. 146, 150, 292 A.2d 358, 360 (1972). “An [accomplice] must have done something to participate in the venture.” Commonwealth v. Flowers, 479 Pa. 153, 156, 387 A.2d 1268, 1270 (1978).

Commonwealth v. Brady, 385 Pa.Super. 279, 284-285, 560 A.2d 802, 805 (1989). See also: Commonwealth v. Calderini, 416 Pa.Super. 258, 262-263, 611 A.2d 206, 208 (1992); Commonwealth v. Smith, 343 Pa.Super. 435, 448-449, 495 A.2d 543, 550 (1985). Here there was no evidence that appellant knew of Gruschin’s intent to burglarize the neighboring homes or that he participated in any way in the commission of Grus-chin’s crimes.

It is not enough that appellant was present in his home at the time of Gruschin’s commission of the burglary. Although this circumstance may have been sufficient to arouse one’s suspicion, it was insufficient to establish beyond a reasonable doubt that Swerdlow was a participant in the crime. The Commonwealth cannot rest on surmise and suspicion but must offer evidence proving guilty knowledge and participation. This it failed to do. The judgment of sentence, therefore, must be reversed.

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

      . The Commonwealth, in its brief, has represented that appellant “falsely denied Gruschin s presence when police were looking for him.” This statement is simply unsupported by any evidence at appellant’s trial. The evidence discloses that on one occasion prior to January 4, 1991, the Haverford Township Police spoke with appellant about locating Gruschin. There is no evidence that appellant gave any false statements to police.

      . This fact, it would seem, is no more incriminating of appellant than of his mother. No one contends, however, that Mrs. Swerdlow was aware of Gruschin’s illegal activities.