author: McEWEN, Judge:

text:
    454 A.2d 84
    COMMONWEALTH of Pennsylvania v. Richard PROSDOCIMO, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1981.
    Filed Dec. 17, 1982.
    Petition for Allowance of Appeal Denied June 21, 1983.

      Norma Chase, Pittsburgh, for appellant.
    Kemal Alexander Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CERCONE, President Judge, and HESTER, CAVANAUGH, BROSKY, McEWEN, BECK and JOHNSON, JJ.
   McEWEN, Judge:

We here provide an en banc review of the contention of appellant that the search warrant which resulted in the presentation of demonstrative evidence at his trial was not based upon probable cause. We disagree and affirm the judgment of sentence.

Appellant was found guilty by the distinguished Allegheny County Common Pleas Court Judge James F. Clarke, sitting without a jury, of violation of that section of the Uniform Firearms Act which prohibits a former convict from owning or possessing a gun and of violation of the Controlled Substance, Drug, Device and Cosmetic Act and was sentenced, after the denial of timely filed post-verdict motions, to serve a term of imprisonment of from one to two years. Appellant initiated an appeal to this court and contended, inter alia, that the search of his apartment conducted pursuant to the instant search warrant was illegal. Appellant bases his contention that the search warrant was illegal upon the claim that the affidavit of probable cause did not set forth such underlying circumstances as would enable the magistrate to conclude the informant was credible or his information reliable. A careful concentration upon the basic notions of the Fourth Amendment and upon the recent landmark decisions interpreting that Amendment, however, lead us to conclude that there was probable cause for the issuing authority to issue the search warrants.

This case began when Pittsburgh Narcotics Detective Barry Fox, together with his colleagues, applied for a warrant so as to permit the search for and seizure of “Controlled substances and paraphernalia used to package and administer the same, To Wit Dilaudid and any papers and/or documents used to establish residency and I.D.” that might be found in a (1) specific unit of a multiple apartment dwelling at a (2) specific address which was (3) the residence of appellant. The detective stated in the section that is captioned—

Probable cause belief is based on the following facts and circumstances:
The affiants were given information by person who has benn [sic] reliable in the past that Rick Prosdecimo is concealing and dispensing Dilaudids from his apt. The informant has observed this activity on a number of occasions in the past and as late as the week of 2-6-77. The informant has just been talking with Rick and Rick told the informant that he has 500 D's on hand right now and that he was waiting for a number of persons to come to the apt. now to buy some. The informant stated that we should hit it this night as he would sell most of them tonight as he was going to turn tomorrow. By turn the affiants know he means purchase more of them for sale.
Information from this informant has resulted in the arrest of Charles Connors of 159 Greenfield Ave. on 9-29-76 and the arrest of Robert Mahaven of 1680 Skyline Dr. on 2-17-76.
Because Rick may sell out tonight the affiants are requesting a night time search warrant to be issued.

The detectives who were the affiants failed in the recitation to refer to a prior court proceeding in which testimony indicated appellant had been sent as an “enforcer” to the West Coast to collect money and to a previous conviction upon charges of rape, sodomy and robbery which resulted in the imprisonment of appellant in a State Correctional Institution. And while the recitation also failed to supply more precise details concerning the status of the two cases in which information from this informant had resulted in arrests, this recitation does set forth the specific dates upon which such arrests occurred as well as the names of the individuals arrested and their addresses. As a result, this case can be distinguished from Commonwealth v. Chatman, 275 Pa.Super. 5, 418 A.2d 582 (1980) which saw this court determine there was a lack of probable cause for the warrant since the affidavit was totally barren of relevant information concerning the previous arrests.

The execution of the search warrant by the police officers is described in the opinion of the trial judge as follows:

The warrant was obtained and executed the same day in the Greenfield section of Pittsburgh. While the officers were at the unopened door they heard a telephone bell ringing in the apartment and overheard a male voice speaking as on the telephone and saying, ‘Do you think they are coming up here—are they already in the building?’ The officers knocked and made appropriate announcements and the same male voice was heard to say, “Wait a minute.” The telephone was hung up. The officers waited and knocked again. Sounds of movement were heard inside, but not coming toward the door, whereupon force was used to gain entry to the apartment. The defendant was observed at an open window as some object was seen going out through the window.
Execution of the warrant and a search produced:
1. A .25 calibre automatic pistol.
2. A box of 50 rounds of .25 calibre bullets.
3. A blue and red ski mask.
4. A pair of man’s gloves.
5. A pair of sap gloves (leaded).
6. A sum of $4,015.00 in U.S. currency.
7. Five white Rorer 714 tablets.
8. Nineteen white scored tablets.
9. One blue and green capsule.
10. Twenty-six blue ciba tablets.
11. Forty-two yellow Ortho tablets.
Item No. 6, the $4,015.00, was found in two bundles in cash in pockets of a bathrobe hanging in a closet in the apartment. As mentioned above, this money was returned to the defendant prior to trial by order of the Administrative Judge.
The defendant admitted his possession of methaqualone tablets and the cash but disclaimed any proprietary interest in the bullets or the gun.
The control of the defendant over the premises appeared to be indisputable. He was making use of the telephone and receiving calls; he had a key to the apartment; he was comfortable enough and secure enough there to have over $4,000.00 cash in the pocket of a bathrobe hanging in the closet; he acknowledged pills of his found on a table; he received a visit from a man while on the premises; he answered a telephone call from his girlfriend while there; he himself telephoned other persons to request them to secure the apartment since he would be vacating it in custody of the police; and called his landlord to come and fix the door and then he called his brothers to come over and stay. (R. 89).
The premises was described as an efficiency apartment consisting only of one room and bath—a small place.
Pittsburgh police officer McCauley (R. 93) found the pistol in a holster on the street next to the curb, a distance of ‘two parking meters’ from the apartment window at which defendant had been seen as some ‘object’ was going out through the window.
Defendant’s girlfriend had obtained the telephone number for the apartment two months prior to defendant’s arrest (R. 118) indicating this was not his first use of or visit to the place. The defendant said he himself put the $4,015.00 cash in the pockets of the robe in two bundles (R. 125). Defendant acknowledged that the ‘dianobol’ pills he had were used in connection with weight lifting exercises and that the methaqualone were used for sleeping pills. (R. 127).
(Lower Court opinion at 2-4).
The Fourth Amendment proclaims:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Two landmark decisions interpreting this sacred provision of the Bill of Rights, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), are the key cases for our discussion of the primary issue of this appeal.

There seems to be unanimous acceptance by the appellate judges of this Commonwealth of Aguilar’s “two-pronged test”:

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of affiant, ... the magistrate must be informed of some of the underlying circumstances from which informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed ... was credible or his information reliable, (citations omitted).

378 U.S. at 114-15, 84 S.Ct. at 1514, 12 L.Ed.2d at 729. See, Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976); Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973); Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971); Commonwealth v. Minton, 288 Pa.Super. 381, 432 A.2d 212 (1981); Commonwealth v. Turner, 284 Pa.Super. 395, 425 A.2d 1161 (1981); Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980); Commonwealth v. Prokopchak, 279 Pa.Super. 284, 420 A.2d 1335 (1980); Commonwealth v. Albert, 264 Pa.Super. 390, 399 A.2d 1106 (1979); In re Burton, 259 Pa.Super. 20, 393 A.2d 696 (1978); Commonwealth v. Forster, 253 Pa.Super. 433, 385 A.2d 416 (1978); Commonwealth v. Reisinger, 252 Pa.Super. 1, 380 A.2d 1250 (1977); Commonwealth v. Herron, 243 Pa.Super. 319, 365 A.2d 871 (1976); Commonwealth v. Scavincky, 240 Pa.Super. 550, 359 A.2d 449 (1976); Commonwealth v. Kaschik, 235 Pa.Super. 388, 344 A.2d 519 (1975); Commonwealth v. Samuels, 235 Pa.Super. 192, 340 A.2d 880 (1975). The Aguilar decision includes a reiteration of the very basic and clearly established principle of constitutional law that any decision as to whether probable cause exists, so that a warrant should issue, must be made by an issuing authority rather than by a police officer. Id. “When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948).

Thus we see that it is the magistrate or issuing authority who is to make the conclusion that probable cause exists. The decision of the magistrate follows his consideration of the information and data supplied to him by the affiant who, in most cases, as well as in this case, is not the primary source of information. Since hearsay can be received in this proceeding before the magistrate, a substantial basis for crediting the hearsay must be presented. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); See Commonwealth v. Falk, 221 Pa.Super. 43, 290 A.2d 125 (1972). It is the AguilarSpinelli cases that specifically describe how that required substantial basis may be presented.

The United States Supreme Court selected the term “two-pronged test” for describing the applicable standard of scrutiny. The focus of the inquiries by which the two separate tests are conducted have been very aptly analyzed in a superb treatise by Maryland Court of Special Appeals Judge Charles E. Moylan, Jr. and can be described as:

The magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were. Aguilar, supra at 114-115. This test, says, Judge Moylan calls upon the magistrate to evaluate the adequacy of the premises for the conclusions of the informant and requires the magistrate to judge the logic of the position of the informant. This inquiry might well be expressed: Is the informant mistaken with regard to his conclusions?
The magistrate must be informed of some of the underlying circumstances from which the officer concluded that the informant ... was credible or his information reliable. Aguilar, supra [378 U.S.] at 114-115 [84 S.Ct. at 1514]. The magistrate here, in the view of Judge Moylan, is called upon to evaluate the truthfulness of the informant and is required to judge his integrity. The inquiry might well be expressed: Is the informant lying?

See Moylan, supra at 750.

Appellant here does not dispute the adequacy of the affidavit with regard to the first prong. Nor could he since the informant actually observed the activity “on a number of occasions”, including a recent occasion, and since the informant had “just been talking with the appellant.” Rather, appellant disputes the adequacy of the second-prong and so states on page 12 of his brief:

Appellant does not dispute that the affidavit adequately explained how the informant reached his conclusions, as required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The other requirement of Aguilar —that the affidavit demonstrate the informer’s reliability —was, however, not met instantly.

Appellant does not precisely express, however, this requirement of Aguilar when he states the affiant must “demonstrate the informer’s reliability”; rather, the test required for this second-prong permits the issuing authority to complete the evaluation of the informant by a conclusion either that the informant was credible or that his information was reliable. See Aguilar, supra; Spinelli, supra.

What do we, as a review court, know about this transaction? We know the magistrate did not refuse the application for a warrant and we thereby infer he concluded either that the informant was credible or that the information, from the informant was reliable. It was only necessary for him to reach one of those two conclusions and we know not—nor must we—whether in this instance the magistrate reached only one conclusion and, if so, which one or both. The thrust of our determination is to inquire whether it was possible for the magistrate to have been satisfied of either.

What did the issuing authority know about this transaction? The record shows the magistrate was aware of the following data:

Detective Barry Fox, one of the applicants for the warrant, is a member of the Narcotics Division of the Pittsburgh Police Department.
The crime for which the search warrant was sought was violation of the Narcotics laws.
The informant was considered reliable, a conclusion of the police, but, nonetheless, a conclusion of police specializing in narcotics investigations and seeking a warrant for narcotics violations, a factor which the magistrate could well include in the bases for a conclusion that the informant was credible.
The application for warrant did not specify a number of illegal substances as the object of the search, nor even a particular class of substances as the object of the search, but rather provided a quite specific identification of one particular substance, namely: Dilaudid.
The informant had not simply supplied information on one earlier occasion, that had led to merely an investigation, but had earlier supplied information that (1) twice (2) resulted in arrests of (3) specific individuals (4) on two specific occasions separated by six months (5) within the past year.
It was necessary to proceed in urgent fashion.

The duality of the two-pronged Aguilar test requires two separate analyses, each with a different focus, but there does not appear to be any valid practical or legal reason why consideration of a particular factor must be restricted to but one of the two analyses. For that reason, therefore, any information that may have been considered during the analysis for the basis of knowledge prong may also be considered during the analysis for the veracity prong. We here have an informant who has (1) previously observed not only the concealment but also (2) the dispensing of Dilaudids (3) on a number of occasions (4) including such activity within the past forty-eight hours and has also just learned (5) from the drug dealer himself that (6) sales are about to take place (7) at the premises which is the subject of the warrant. Can there be any doubt that the abundance as well as the specificity of the information supplied by the informer had a certain impact upon the issuing authority as he determined whether the informant was credible or his information reliable?

This court in Commonwealth v. Ambers, 225 Pa.Super. 381, 310 A.2d 347 (1973), delineated—and reiterated in a number of subsequent opinions—four criteria set forth by the United States Supreme Court in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), which may be considered by the issuing authority in an evaluation of whether there is a substantial basis for accepting the information of an informant:

(1) Did the informant give prior reliable information?
(2) Was the informant’s story corroborated by any other source?
(3) Were the informant’s statements a declaration against interest?
(4) Does the defendant’s reputation support the informant’s tip?

Id., 225 Pa.Super. at 385, 310 A.2d at 350; See Commonwealth v. Mazzochetti, 299 Pa.Super. 447, 445 A.2d 1214 (1982); In re Burton, supra; Commonwealth v. Reisinger, supra; Commonwealth v. Herron, supra; Commonwealth v. Kaschik, supra; See also Commonwealth v. Falk, supra.

This court has made clear, however, that the affiant need not satisfy the magistrate of all four of those criteria. See Commonwealth v. Herron, supra; Commonwealth v. Ambers, supra. The majority of the panel of this court which earlier considered the instant case concluded that the warrant was improperly issued because none of those criteria were satisfied in this case and that it had not been shown “that the informant’s prior implication, in criminal activity, of the two persons who had been arrested had been accurate.” (majority opinion at 86). The panel majority relied upon Commonwealth v. Benjamin, 260 Pa.Super. 1, 393 A.2d 982 (1978) as authority for the finding that the issuing authority did not have a substantial basis for crediting the hearsay contained in the affidavit and therefore improperly issued the search warrant. We, on the other hand, find, quite to the contrary, that Benjamin provides a firm basis for concluding that the arrest of two individuals as a result of information from this informant satisfied the initial criterion set forth in Commonwealth v. Ambers, supra, namely, the informant did give prior reliable information. It is true that the decision of this court in Benjamin was a three to two decision but our esteemed colleague, Judge Gwilym A. Price, Jr. firmly declared for the majority that furnishing information leading to arrests is a satisfactory prior performance of reliability:

Appellee [Benjamin] makes much of the fact that three named prior arrests did not result in convictions until after appellee’s arrest. Our research, however, uncovers no case which holds that an informant must have provided information in the past that led to arrests and convictions. Nor do we find a requirement that any given number of arrests and convictions is necessary. Id., 260 Pa.Super. at 6, 393 A.2d at 985. (emphasis in original).

In Benjamin, Judge Price quoted with approval the opinion of this court in Commonwealth v. Archer, 238 Pa.Super. 103, 109, 352 A.2d 483, 486 (1975):

While past reliability is most often established through a showing of convictions which resulted from information supplied by the informer, there is no logical reason for mandating that all information lead to convictions before reliability is established (citations omitted).

Benjamin, supra 260 Pa.Super. at 6-7, 393 A.2d at 985.

He construed the language of Archer to mean that “past 'investigative leads’ that proved reliable and accurate were a sufficient indicator of the informant’s reliability” and explained the rationale for the holding that it is not necessary that an informant have provided past information that lead to arrests and convictions thus:

The essential fact is that the informant gave prior information implicating other persons in criminal activity, which information proved to be correct. 260 Pa.Super. at 7, 393 A.2d at 985.

While it is true, as the majority of the earlier panel notes, the information in Benjamin had been corroborated by police surveillance, the Benjamin majority determined that the “reliability” of the informant has been adequately established before any consideration of the corroborative police surveillance.

Such corroboration would not seem to be so basic a prerequisite in the instant factual situation, a search by warrant, as it would be in the Benjamin factual situation, an arrest based upon probable cause without warrant. The distinction between activity with a warrant and activity without a warrant is of basic importance in light of the specific declaration of the United States Supreme Court in Aguilar:

Thus, when a search is based upon a magistrate’s, rather than a police officer’s, determination of probable cause, the reviewing courts will accept evidence of a less ‘judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,’ and will sustain the judicial determination so long as ‘there was substantial basis for [the magistrate] to conclude that narcotics were probably present.’

Aguilar v. Texas, supra 378 U.S. at 111, 84 S.Ct. at 1512, 12 L.Ed.2d at 726 (quoting Jones v. United States, supra 362 U.S. at 270-271, 80 S.Ct. at 736, 4 L.Ed.2d at 708).

While this does not mean that the scrutiny of an appellate court may be less incisive when it seeks to determine whether probable cause existed for the issuance of a search warrant, it does seem reasonable to assert that we should display, during appellate review, a certain hesitancy to disturb a finding of the existence of probable cause. It is to be remembered that the instant affidavit, found by the magistrate to be sufficient, was also determined to be adequate by the Common Pleas Judge who heard, considered and ruled upon the suppression application.

We do not here accept the affidavit of probable cause as a model or endorse it as a form or recommend it as the standard or suggest it as a guide, nor do we decree that issuing authorities in the Commonwealth must or should be so quickly persuaded or so easily convinced. Rather, we simply hold that the issuing authority in this case had a sufficient basis for a determination that the informant was credible or his information reliable.

Our refusal to find that the issuing authority lacked a sufficient basis for this determination is certainly consistent with the statement of the United States Supreme Court in Spinelli v. United States, supra, 393 U.S. at 419, 89 S.Ct. at 591, 21 L.Ed.2d at 645, that,

... in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 688 (1975); and that their determination of probable cause should be paid great deference by the reviewing courts, Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 707-708 (1960),

as well as with the proposal of that court in United States v. Ventresca, supra 380 U.S. at 108-109, 85 S.Ct. at 746, 13 L.Ed.2d at 689:

[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policies served, affidavits for search warrants ... must be tested and interpreted by the magistrates and courts in a commonsense and realistic fashion. They are normally drafted by non-lawyers in the midst and haste of a criminal investigation. The technical requirements of elaborate specificity once exacted under common law pleadings have no place in this area. * * * This is not to say that probable cause can be made out by affidavits which are purely conclusory ____ [RJecital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hyper-technical, rather than a common sense manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubt for marginal cases in this area should be largely determined by the preference to be accorded to warrants. Jones v. United States, supra, 362 U.S. at 270, 80 S.Ct. at 736, 4 L.Ed.2d at 707. (Emphasis supplied).

See also Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981); Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981); Commonwealth v. Muscheck, 460 Pa. 590, 334 A.2d 248 (1975); Commonwealth v. Prokopchak, supra; Commonwealth v. Tucker, 252 Pa.Super. 594, 384 A.2d 938 (1978); Commonwealth v. Purcell, 251 Pa.Super. 545, 380 A.2d 914 (1977).

The members of this court are, of course, mindful of the stressful conditions of the particular world in which local police officers must conduct an operation that necessarily places considerable reliance upon frequently shadowy sources who not only demand but also, if they are to be available for future information, require protection that is sometimes best afforded by an obscurity that appears to be inconsistent with the mandate of our courts that an affiant must establish the credibility of his informant. We are further aware that the local police departments lack the manpower, so abundantly available to their federal colleagues, that would enable the corroborative surveillance prized not only by the issuing authority at the time of application for a warrant but also by sound police practice. Nonetheless, it is urgently necessary for those harried police officers who apply for warrants to provide intense concentration toward recitation in the application of all information that is supplied to and known by the police officers but that is all too frequently omitted from the text. For example, while it is true that appellant’s prior criminal history, at least insofar as this record reflects, did not include drug activity and that an assault upon probable cause would have been launched by defense counsel for that reason, nonetheless, the police would have far better achieved had the application for a warrant contained such information about appellant. Certainly, any details in the immediate knowledge of the officers concerning the status of the prosecutions triggered by the arrests for which the instant informant supplied information should have been noted in the application for the warrant.

Our eminent President Judge William F. Cercone wisely counselled the police officers of this Commonwealth when he urged compliance with the very helpful suggestions outlined by Judge Moylan and we cannot do better than reiterate that counsel:

It would be meaningful to tell the magistrate when the information had been furnished. It would be meaningful to tell the magistrate whether, as a result of the arrests, evidence was turned up which the informant indicated would be turned up. It would be meaningful to tell the magistrate whether the information from the informant was the exclusive predicate for the arrests, or whether it was but a minor contributing factor considered along with many other factors. It would be meaningful to tell the magistrate whether those earlier arrests had ever been ruled upon, in terms of their legality and in terms of the adequacy of the probable cause upon which they were based. If the informant was, indeed, deemed credible for purposes of those earlier arrests, why not furnish the magistrate now the supporting facts which made the informant credible then? That data would be unquestionably relevant on the issue of current credibility. It would be meaningful to tell the magistrate whether the informant had always furnished good information or not. Moylan, supra note 4 at 758-59. (citations omitted).

Commonwealth v. Chatman, supra 275 Pa.Super. at 10-11, 418 A.2d at 585.

In conclusion, the appellant does not dispute that the affidavit adequately met the first-prong of Aguilar, the basis of knowledge prong, and we determine there was a sufficient basis—quite ever so barely—for the second-prong, the veracity test. As a result, we conclude there was probable cause for the issuance of this warrant.

The brief of appellant also contends:
The evidence was insufficient to support the verdict on a firearms charge.
The suppression judge erred in refusing to recuse himself from presiding at trial.

A careful study of the entire record as well as of the briefs of the parties compels the conclusion that there is no merit to these contentions.

Judgment of sentence affirmed.

CERCONE, President Judge, and JOHNSON, J., concur in the result.

      . 18 Pa.C.S.A. § 6105.

      . 35 P.S. 780-113(a)(16).

      . Opinion of the Common Pleas Court at Page 6.

      . Id. at 8.

      . Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741 (1974).

      . The Opinion of the trial judge at page 2 so describes one of the affiants, Detective Fox. It is not conceivable that the magistrate did not know of the special police duties of affiants especially since the affiants translate in the affidavit the drug world term "turn”.

      . The treatise of Judge Moylan, see footnote 5, supra, so distinguishes the two prongs.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    454 A.2d 92
    COMMONWEALTH of Pennsylvania, v. John W. DAVIS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1982.
    Filed Dec. 17, 1982.
    Petition for Allowance of Appeal Denied Feb. 28, 1988.

      Clarence D. Bell, Media, for appellant.
    David E. Fritchey, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from the judgments of sentence imposed on the appellant, John W. Davis, Jr., on April 10, 1981, in the Court of Common Pleas of Delaware County. A jury convicted appellant of first-degree murder, two counts of robbery, and criminal conspiracy. The court denied appellant’s post-trial motions and sentenced him to life imprisonment for murder, ten to twenty years imprisonment for robbery to be served consecutively to the life sentence, and five to ten years imprisonment for conspiracy to be served concurrently with the robbery sentence. We affirm.

The evidence presented at trial, viewed in a light most favorable to the Commonwealth as verdict winner, shows the following:

On the evening of December 23, 1979, Father William Benonis and Joseph Hoffman were walking the short distance from the church building of St. Michael’s Church in Chester to the rectory. Mr. Hoffman’s wife was waiting for him outside the rectory. Father Benonis was carrying a case containing proceeds from a church bingo game, while Mr. Hoffman was carrying a tin box containing money from sales of refreshments at the game. Before Father Benonis and Mr. Hoffman reached the rectory, two men who had been sitting together near the church entrance approached and confronted them. One of the men poked a shotgun into Father Benonis’s stomach. Father Benonis grabbed the gun and yelled, and threw the money case into a hedge near the rectory. One of the assailants began to run away, while the one with the shotgun went to retrieve the money case. As the gunman tried to escape, he came upon Joseph Hoffman, raised the shotgun and fired at very close range into Hoffman’s left chest and shoulder. The gunman fled on foot. Father Benonis and Mrs. Hoffman ran immediately to Mr. Hoffman where he lay on the ground. When Chester Police arrived minutes later, Hoffman had no vital signs. He was taken to the hospital, where he was pronounced dead.

Police immediately began a search of the neighborhood around St. Michael’s. About a block from the church, an officer came upon a man named Pat Martin walking on Eighth Street and asked him whether he had seen anyone running through the vacant lot behind the church. Martin told the officer he had seen three black males, one of whom appeared to be carrying a rifle and a radio-shaped object, running from St. Michael’s through the lot. Martin said he then saw a late 1960’s model Cadillac with a white top and temporary tags pick the three men up on Eighth Street. The car then sped down Eighth Street and made a turn, at which point Martin lost sight of it. Police also learned that the car had a personalized front license plate with the letters “BOP” on it. A description of the car was called in to the police radio dispatcher. A short time later, a car fitting the description was found on Seventh and Mcllvain Streets in Chester, about two blocks from where Martin had last seen the car. In the glove compartment, police officers found a temporary registration slip for the car in Davis’s name. As officers were investigating the car, the appellant’s brother, Bruce Davis, came upon the scene and asked the officers why they were searching his brother’s car. Bruce Davis was detained, but released without questioning. Later, a fingerprint dusting of the car turned up some prints identified as those of the appellant.

Near the scene of the crime, police found a piece of gun metal and two waddings from shotgun shells. In the underbrush at Eighth and Madison Streets, police found a shotgun with its barrel split and a shell in one of its chambers. About five or six blocks from the church, police found a case containing church keys and checks made out to St. Michael’s. With the case was a tin box. The case and box were identified as those Father Benonis and Hoffman had been carrying.

Later tests determined that John Davis’s fingerprints were on the shotgun; that the shotgun was the one used to shoot Joseph Hoffman; that the piece of gun metal had come from the barrel of the shotgun; and that the shell waddings were consistent with the type of ammunition used in the shotgun.

Having culled this information from their investigation, police executed a criminal complaint and took out a warrant for Davis’s arrest on January 9, 1980, charging him with the murder of Joseph Hoffman. On January 14, 1980, Davis went to the Detective Division of the Chester Police Department with his father to surrender himself on a second warrant based on unrelated burglary charges. Sergeant Randolph Dixon read Davis his constitutional rights and the second warrant. Davis answered “yes” when asked if he understood his rights, and “no” when asked if he wanted a lawyer. Detective Daniel Iacono took Davis to be booked, then read him the arrest warrant stemming from the St. Michael’s shooting and informed him that he was being charged with homicide, robbery and related offenses. Detective Iacono again read Davis his constitutional rights, and again Davis answered “yes” when asked if he understood his rights, and “no” when asked if he wanted a lawyer. Detective Iacono returned Davis to Sergeant Dixon for questioning on the burglary charges. Before Sergeant Dixon could begin questioning, Davis said, “The man is dead and if I go to jail, can I ask for the chair?” Despite Sergeant Dixon’s warnings not to continue, Davis said, “Brown gave me the gun and told me it wasn’t loaded. Brown, Bannister, and Slim Lee ran off and left me with the two men.” Sergeant Dixon interrupted again to warn Davis not to say anything further, but Davis continued, “Brown, Lee ran off and left me. The man came after me, at me. The gun went off.” Davis was hysterical and crying at this point. The arresting officers decided not to try to question Davis then, and summoned Davis’s father into the room.

Davis presents several objections on appeal, all of which were ably dealt with and rejected in the learned trial Judge Melvin Levy’s post-verdict opinion, and all of which we reject also.

The appellant first contends that the criminal complaint and affidavit of probable cause prepared by the police did not contain information sufficient to disclose probable cause for his arrest. ■ Appellant argues that the warrant for his arrest was improperly issued, since the issuing authority had no probable cause upon which to base the warrant. He concludes that his arrest was illegal and that he should have been discharged from the outset.

Appellant has not provided us with a copy of the original complaint, nor has he quoted from it to inform us of the precise nature of the defects of which he complains. However, we have determined that neither appellant’s arrest nor his conviction is invalidated by the asserted defects

in the complaint. A warrantless arrest for a felony will be upheld where police have probable cause to believe (1) that a felony has been committed, and (2) that the person to be arrested is the felon. Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979). “ ‘Probable cause’ is said to exist where facts and circumstances within the knowledge of the arresting officer are reasonably trustworthy and sufficient in themselves to warrant a man of reasonable caution to believe that the person to be arrested has committed the offense.” Commonwealth v. Jackson, 450 Pa. 113, 117, 299 A.2d 213, 215 (1973). When appellant walked into the Chester Police Station on January 14, 1980, police already had probable cause to arrest him without a warrant. They knew that Joseph Hoffman had been shot and killed in the course of a robbery. They had determined that the shotgun found at Eighth and Madison Streets was the weapon used to shoot Hoffman. They had found appellant’s fingerprints and a registration slip in appellant’s name in a car that had been seen speeding away after picking up three black males, one of whom was carrying a long gun. These same three black males had been seen running from the scene of the crime. The appellant’s brother had also indicated to police that the car belonged to the appellant. Although police did not have a detailed description of any of the robbers, the appellant fit the description they did have, insofar as he was a young black male of average size. Taken together, these were facts and circumstances sufficient to warrant a man of reasonable caution to believe that appellant had committed the offenses for which he was arrested. It is of no consequence that much of this information may not have been known to Sergeant Dixon at the time of the arrest. As long as the officers who oversee the investigation and order the arrest possess the information constituting probable cause, the fact that an officer making the arrest does not know personally of the information does not alter the validity of the arrest. Wagner, supra; Jackson, supra; Commonwealth v. Thomas, 269 Pa.Super. 409, 410 A.2d 322 (1979). For these reasons, appellant’s arrest on January 14 was legal, regardless of the validity of the arrest warrant.

The appellant’s brief appears to treat the legality of his arrest and the validity of the complaint filed against him as one and the same issue. If these issues were one and the same, our determination that appellant’s arrest was legal would also dispense with his objections to the form of the complaint. However, appellant’s citation to Rule 150(b) of the Pennsylvania Rules of Criminal Procedure may fairly be held to raise the issue whether that rule required his discharge before trial due to a substantively defective complaint. Rule 150(b) provides:

Substantive Defects: A complaint, citation, summons, or warrant contains a substantive defect, the defendant shall be discharged unless he waives the defect. Nothing in this rule shall prevent the filing of a new complaint or citation and the issuance of process in which the defect is corrected in a proper manner.

Assuming arguendo that the complaint in this case contained substantive defects, the appellant’s proper relief would have been to obtain a discharge from the district justice, at which point the police could have rearrested appellant and filed a corrected complaint. Commonwealth ex rel. Fitzpatrick v. Mirarchi, 481 Pa. 385, 392 A.2d 1346 (1978). But the fact that appellant did not succeed in obtaining a discharge at the district justice level is not a ground for now disturbing his conviction. Commonwealth v. Krall, 452 Pa. 215, 304 A.2d 488 (1973); Commonwealth v. Mills, 235 Pa.Super. 173, 340 A.2d 900 (1975). Just as in the Mills case, appellant’s discharge would have resulted in nothing more than his rearrest and a new finding of probable cause. Thus, the district justice’s refusal to discharge appellant did not prejudice him.

The appellant next objects to the conduct of the preliminary hearing, arguing that the district justice admitted appellant’s incriminating statements without proof of the corpus delicti of the crime of murder. The rule of law relied on by appellant is that “an extra-judicial admission or confession of one accused of crime cannot be received in evidence unless and until the corpus delicti of the crime has first been established by independent proof.” Commonwealth v. Turza, 340 Pa. 128, 133, 16 A.2d 401, 404 (1940). Appellant first argues that it was improper procedure for the district justice to admit appellant’s incriminating statements before the cause of Joseph Hoffman’s death had been independently proven. Technically, the language of the Turza case would seem to support this argument. However, the modern view, as expressed in Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982), is that the order of proof is a matter within the discretion of the hearing judge. In Smallwood, the trial judge had received the defendant’s inculpatory statements into evidence before the corpus delicti of the crime had been proven. On appeal, the Supreme Court held that since the corpus delicti had been subsequently established through independent evidence, there was no error in the prior admission of the statements. Smallwood, of course, dealt with the order of proof at trial. Since, in our view, the difference in purpose between a preliminary hearing and a trial often dictates that evidentiary rules be relaxed at the hearing, Commonwealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976), we have no difficulty in applying the Smallwood rule with even greater force in this case.

To establish the corpus delicti in a homicide case, it is necessary to show “that the person for whose death the prosecution was instituted is in fact dead and that the death occurred under circumstances indicating that it was criminally caused by someone.” Turza 340 Pa. at 134, 16 A.2d at 404. Appellant maintains that this corpus delicti requirement was never properly met at the preliminary hearing because the Commonwealth used a hearsay autopsy report to establish Joseph Hoffman’s death and cause of death. We reject this argument on the basis of Commonwealth v. Rick, supra. In Rick, a drunk-driving case, the appellant objected that the only evidence of his intoxication offered by the Commonwealth at the preliminary hearing was a hearsay blood-alcohol report. This Court held that the blood-alcohol report was admissible, at least so long as it appeared the Commonwealth would be able to produce at trial the chemist who had prepared the report. In Commonwealth v. Branch, 292 Pa.Super. 425, 437 A.2d 748 (1981), the court went even further. Branch was being held for a shooting. A police officer was allowed to testify at the preliminary hearing that he had been told by the shooting victim’s brother that Branch had done the shooting. The court, relying on Rick as controlling precedent, held that the district justice had committed no error in admitting this obvious hearsay.

Appellant cites Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979), for the proposition that we should draw a distinction between a routine procedure such as a blood-alcohol test and a complex procedure requiring sophisticated analysis and opinion such as the autopsy involved in this cáse. We agree that this distinction is valid for some purposes, but Seville is simply inapposite to the issue decided here. That decision merely declined to extend the hospital records exception to the hearsay rule to medical reports requiring professional diagnoses and opinions. Here, we are not making an exception to the hearsay rule. We are following Branch and Rick in holding that a hearsay autopsy report is admissible at a preliminary hearing to prove the cause of death in a homicide case.

The appellant next assigns error in the trial court’s refusal to suppress his incriminating statements. Appellant bases part of his argument on Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In light of our determination that appellant’s arrest was perfectly legal, the Wong Sun issue does not arise, and the argument that appellant’s statements were the fruit of an illegal arrest is dismissed.

However, appellant also argues that he never explicitly waived the right not to incriminate himself, and that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires that his statements be suppressed. Appellant’s reliance on Miranda is dubious in view of the holding in North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), which recognized that an implicit waiver of constitutional rights could be effective. But, as appellant correctly points out, the Pennsylvania Supreme Court has indicated its unwillingness to follow Butler. In Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979), the Court held that the Pennsylvania Constitution requires an explicit waiver of constitutional rights. Nevertheless, appellant is wrong in maintaining that he never explicitly waived his rights. The record shows that appellant answered “yes” to police questions whether he understood his rights, and “no” when asked whether he wanted an attorney. In Commonwealth v. Webb, 491 Pa. 329, 421 A.2d 161 (1980), the Supreme Court held that yes/no answers to Miranda warnings are a sufficiently explicit waiver of constitutional rights. In the instant case, the trial court held that appellant “made a knowing, intelligent, and explicit waiver of his constitutional rights” before making his incriminating statements. Commonwealth v. Davis, 69 Del.Co.Rep. 125, 132. The fact that appellant may have been very upset upon learning he was being charged with homicide is understandable, but that fact alone does not vitiate the trial court’s finding. Accordingly, we hold that there was no error in the admission of appellant’s statements.

Finally, appellant contends that the evidence adduced at trial was insufficient to convict him of first-degree murder, robbery, and conspiracy. Our standard of review on this issue is whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crimes charged. Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982).

We have already held that appellant’s statements to police were admissible. The statements contained admissions that appellant had been the gunman in the St. Michael’s robbery. The jury was entitled to find that appellant had in fact been the gunman based on these statements, since there was no showing necessitating a finding that the statements were false.

Therefore, appellant’s only remaining serious objection to the sufficiency of the evidence on the murder charge is that the Commonwealth did not prove he had a specific intent to kill, a necessary element of the crime of murder of the first degree. 18 Pa.C.S. § 2502(a). The Supreme Court has repeatedly held that circumstantial evidence that the defendant used a deadly weapon on a vital part of the decedent’s body is sufficient to support the inference that the defendant intended the victim’s death. Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614 (1981); Commonwealth v. Bishop, 489 Pa. 96, 413 A.2d 1031 (1980); Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976). The reason for this rule is that direct proof of an actor’s intent is usually impossible. In the absence of such direct proof, the factfinder may infer that the actor intended the natural and probable consequences of his act. O’Searo 466 Pa. at 238-39, 352 A.2d at 37. The testimonies of Father Benonis and Mrs. Hoffman indicate that the gunman, after retrieving Father Benonis’s money case from the hedge, came upon Joseph Hoffman, raised the shotgun and fired at a range of no more than a couple feet, striking Hoffman in the left shoulder and neck. A natural and probable consequence of this act was the death of Joseph Hoffman. It was permissible for the jury to infer that appellant, the gunman, had the specific intent to kill Hoffman.

The appellant, relying on his oral statements to police, argues that the inference of specific intent to kill was contradicted by evidence that the gun went off accidentally and that he did not know it was loaded. A jury is free to believe all, part, or none of a defendant’s statements or confessions. Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970). The jury in this case obviously did not believe the self-serving declarations in appellant’s statements. The only other evidence appellant cites in support of his theory that the gun went off accidentally is testimony of the medical examiner who performed the autopsy on Joseph Hoffman that Hoffman’s hand had been injured, possibly when the shotgun blew up. This evidence is no more consistent with appellant’s theory than with the theory that appellant fired intentionally when Hoffman grabbed the gun. But it is not our function to dictate which among various possible inferences the jury must draw. See, Commonwealth v. Kearney, 459 Pa. 603, 331 A.2d 156 (1975). The testimonies of both Father Benonis and Mrs. Hoffman indicate that the gunman deliberately raised the gun and fired. The jury was free to believe these witnesses. The evidence of first-degree murder was sufficient to support the verdict.

Appellant’s challenges to the sufficiency of the evidence on the robbery and conspiracy charges are also meritless. The evidence shows that Father Benonis saw two men approaching from a distance, quickening their pace as they came. The men confronted him, one of them by poking him with a shotgun. The Father’s shouting chased one assailant away, but the one with the shotgun took the priest’s money case before leaving. The gunman fled with his companions after shooting Joseph Hoffman. Although no witness remembered seeing the gunman taking Hoffman’s tin box with the kitchen proceeds in it, police found the box along with the money case about five or six blocks from the scene of the crime. Both the box and the case had been emptied of money. We find this evidence sufficient to support findings that appellant robbed both Father Benonis and Mr. Hoffman, and that appellant illicitly agreed with at least one other person to commit the robberies.

Accordingly, the judgments of sentence are affirmed.

SPAETH, J., concurs in the result.

      . 18 Pa.C.S. § 2502(a).

      . Id. § 3701.

      . Id. § 903.

      . Indeed, it appears that the reason the original complaint was not transmitted to this Court as part of the record is that the complaint was never filed in the Delaware County prothonotary’s office; instead, criminal informations were substituted for the complaint and filed before trial. Appellant has not challenged the sufficiency of the informations.

      . We note that the preparer of the autopsy report did in fact testify at appellant’s trial. We do not pass judgment on the admissibility of evidence suffering from a hearsay defect that will not be cured at trial.

      . "The term 'specific intent to kill’ is a phrase that has been developed by the courts of this jurisdiction to express the state of mind which characterizes the intent which accompanies a killing which is willful, deliberate and premeditated, as required by the statute.” Commonwealth v. O’Searo, 466 Pa. 224, 234, 352 A.2d 30, 35 (1976).

      . As we have already indicated, the evidence was sufficient to support the conclusion that appellant was the gunman.


author: BECK, Judge:

text:
    454 A.2d 99
    Daniel WIEGAND, a Minor, by His Parent and Natural Guardian, James WIEGAND, and James Wiegand, in His Own Right, Appellant, v. MARS NATIONAL BANK.
    Superior Court of Pennsylvania.
    Argued April 26, 1982.
    Filed Dec. 17, 1982.

      Joseph W. Conway, Pittsburgh, for appellants.
    Chester S. Fossee, Pittsburgh, for appellee.
    Before BECK, MONTEMURO and POPOVICH, JJ.
   BECK, Judge:

Appellant Wiegand contends that the lower court erroneously denied his motion to remove a compulsory nonsuit. We find that the compulsory nonsuit was properly granted, and affirm the lower court’s order.

In May 1975, appellant, then sixteen years old, sustained an injury while playing football on an empty lot across the street from the bank. The lot is owned by the bank, and for some years has been given over to the local residents as a meeting place for community affairs and recreational activities. In 1974, the bank allowed the Kiwanis Club to erect a Christmas tree on the lot. A Kiwanis Club member who installed the tree secured it by putting a stake in the ground next to the tree trunk and tying the trunk to the stake. After Christmas, the club member and his sons removed the tree, but were unable to remove the stake due to frozen ground. They therefore pounded the stake below ground level with a sledge hammer and covered the site with earth so that it was not visible. Thereafter, an employee of the bank who mowed the grass in the lot never encountered the stake because it was not only below grass level, but also below ground level. In the spring, when the boys were playing ball, Wiegand removed his shoes and played in his socks. He tripped over part of the stake, which by then had emerged from a depression in the ground, and injured his foot.

In reviewing the lower court’s decision in a nonsuit, we are bound by the well-established principle that nonsuit would be entered only in a clear case, and any conflict in the evidence must be resolved in the plaintiff’s favor. This Court must accept as true the facts presented by the plaintiff and give him the benefit of all reasonable inferences arising from such evidence. Deaver v. Miller, 260 Pa.Super. 173, 393 A.2d 1209 (1978); Norton v. City of Easton, 249 Pa.Super. 520, 378 A.2d 417 (1977); Pagano v. Redevelopment Authority of the City of Philadelphia, 249 Pa.Super. 303, 376 A.2d 999 (1977); petition for allowance of appeal denied (1977).

The law has traditionally formulated the responsibilities and liabilities of landowners to those who enter the land in terms of the status of the entrant as an invitee, licensee, or trespasser. These are not self-defining terms, and in applying them to a set of circumstances we are guided by the definitions in the Restatement, 2nd, Torts (1965) §§ 328-343, which have been adopted by Pennsylvania law. Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978); Farrell v. Bonner, 424 Pa. 301, 227 A.2d 683 (1967); Hager v. Etting, 268 Pa.Super. 416, 408 A.2d 856 (1979); Crane v. I.T.E. Circuit Breaker, 443 Pa. 442, 278 A.2d 362 (1971).

We find no merit in appellant’s argument that he was an invitee of the bank, and that therefore the bank was obligated to make the land safe for his use; i.e. that he was entitled to inspection to discover any latent defects, followed by repair or necessary warning. An invitee is defined as one invited to enter or remain on the land for a purpose for which the land is held open to the public. Restatement, §§ 332, 343.

We agree with appellee’s and the trial court’s characterization of Wiegand as a licensee; i.e. one who is privileged to enter the land only by virtue of the possessor’s consent. The obligation to a licensee is that of exercising reasonable care to warn of dangerous conditions known to the possessor, and is distinguished from the obligation to an invitee who has an implied assurance that the land has been made safe. Restatement, §§ 330, 341, 342.

While the courts no longer restrict the class of invitees to those from whom the owner of the land expects to derive economic benefit, the basis of liability is still predicated on encouraging others to enter the land for a purpose beneficial to the owner. The public is led to rely on an implied representation that the land has been prepared for their reception when the land is held open to the public. Prosser, The Law of Torts (4th ed. 1971), pp. 388-9.

In this instance, however, unrefuted testimony established that the empty lot used by the boys was visited by members of the community for a variety of activities (Centennial celebration, casual meetings, recreational outings, etc.) and was never marked off for the purpose of a ball park or playing field. There were no planned athletic facilities or organized games. Young people ordinarily congregated to talk on the sidewalks or sit on the park benches, with occasional spur of the moment games of frisbee or football. R. 63-4. No evidence established that the bank invited appellant onto the lot for the purpose of playing football or any other athletic game. R. 44-5.

“When a landowner tacitly permits the boys of the town to a play ball on his vacant lot they are licensees only; but if he installs playground equipment and posts a sign saying that the lot is open free to all children, there is then a public invitation, and those who enter in response to it are invitees." Restatement § 332, comment (b). We agree with the court below that Wiegand was a licensee, and the bank therefore had no duty to inspect for hidden dangers. Its liability to licensees is limited to harm caused by conditions of which the owner has knowledge or reason to know. No one from the bank participated in the erection of the tree or its removal. The Kiwanis men who removed the tree buried the stake and covered it with dirt. Appellant Wiegand himself testified that the stake was not visible, and after he hurt his foot he had to search for it to find it.

Furthermore, this Court has held that where evidence indicates that a harmful condition on land is traceable to persons ordinarily not accountable to the owner, the owner is not liable absent evidence proving either actual notice or the existence of the condition for such a length of time that exercise of reasonable care would have led to its discovery. Moultrey v. Great Atlantic and Pacific Tea Co., 281 Pa.Super. 525, 422 A.2d 593 (1980); petition for allowance of appeal denied (1981). Since the bank’s employee responsible for mowing the grass on the lot did not encounter the stake in the spring of 1975 prior to the accident, we conclude that the bank was reasonably unaware of its protrusion.

Wiegand alternatively argues that the bank was liable to him for his injury as a trespassing minor under the standards articulated in the Restatement § 339:

“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by the artificial condition upon the land if
“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
“(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
“(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
“(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

The bank argues that sixteen year-old Wiegand was too old to be considered a child within the meaning of § 339. While it is true that in most instances the rule is applied to children of tender years, the Restatement does not impose an age limit. There is some precedent in cases involving unusual or deceptive instrumentalities for finding liability to children up to the age of seventeen. Nevertheless, appellant’s application of § 339 is misplaced. For a possessor of land to be liable to a trespassing child for injuries resulting from the condition of the land, the possessor must know or have reason to know of the condition. The Restatement explains that “the possessor is under no duty to inspect or police his land to discover whether such a condition exists.” § 339, comment (h). Rush v. Plains Twp., 371 Pa. 117, 89 A.2d 200 (1952); Whigham v. Pyle, 224 Pa.Super. 6, 302 A.2d 498 (1973); Norton v. City of Easton, 249 Pa.Super. 520, 378 A.2d 417 (1977).

Finally, the bank is further insulated from liability by 68 Pa.S.A. § 477-1 et seq., “Recreation Use of Land and Water,” enacted in 1966 to encourage land owners to make land and water areas available to the public for recreational purposes. The Act provides (§§ 477-3, 477-6) that an owner of donated land has no duty of care to keep premises safe for entry or use by others, or to warn of dangerous conditions, and is liable only for malicious failure to guard or warn.

We therefore conclude that viewing all the evidence in the light most favorable to appellant Wiegand, that he has not established liability on the part of the bank.

The order of the lower court is affirmed.

      . Prior to the formulation of § 339, the principles governing an owner's liability to trespassing children were governed by the "attractive nuisance” doctrine and the "playground rule.” The "attractive nuisance” doctrine imposed liability on owners for injuries to trespassing children arising from “alluring” conditions on the land. The "playground rule” was an exception to the general rule which absolved owners of duty to trespassers. The rule imposed liability in those instances where dangerous instrumentalities were in an area recurrently used by children as a play area. Pennsylvania adopted § 339 in Bartleson v. Glen Alden Coal Co., 361 Pa. 519, 64 A.2d 846 (1949), in which the Court held: "To the extent that past cases are in conflict with § 339 they are no longer authority” (at 851). In Dugan v. Pennsylvania Railroad Co., 387 Pa. 25, 127 A.2d 343 (1956) we reiterated that § 339 supercedes and supplants the playground rule in our law.

      . 113 U.Pa.L.Rev. 563 (1965); 16 ALR 3d. 80-81.


text:
    454 A.2d 103
    ALLEGHENY HOME IMPROVEMENT CORPORATION, v. Charles FRANKLIN and Rene Franklin, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued April 27, 1982.
    Filed Dec. 17, 1982.
    Petition for Allowance of Appeal Denied March 22, 1983.

      W. Thomas Laffey, Jr., Pittsburgh, for appellants.
    Charles Means, Pittsburgh, for appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   BECK, Judge:

Homeowners Charles and Rene Franklin (Appellants) appeal an order of the Court of Common Pleas of Allegheny County which confirmed an arbitrator’s amended award in favor of construction contractor Allegheny Home Improvement Corporation (Appellee) and provided that upon praecipe to the court prothonotary judgment would be entered against Appellants in the amount of three thousand five hundred and sixty-six dollars ($3,566.00). We affirm.

On July 5, 1977, Appellants and Appellee signed a standard short form agreement for small construction contracts (“Contract”) supplied by the American Institute of Architects. Under the Contract Appellee agreed to remodel the bathroom of Appellants’ home according to stipulated specifications and Appellants agreed to remit installment payments to Appellee upon determination by an architect that Appellee’s construction work was not defective. Thereafter, Appellants made payment to Appellee in the amount of $14,142.00 but refused to tender the final installment of $4,401.00, alleging poor workmanship and the installation of a flawed bathtub.

Pursuant to Article 14 (“Arbitration Clause”) of their Contract Appellants and Appellee submitted their payment controversy to an arbitrator. The arbitrator’s initial award stated that Appellants should pay Appellee the sum of $3,500.00 upon receiving from Appellee a release of all liens and the manufacturer’s warranty for the flawed bathtub. The award further provided that the costs of arbitration would be borne equally by the parties.

Subsequently, after the parties had filed a “no-lien” agreement in the Court of Common Pleas of Allegheny County, the arbitrator issued an amended award requiring that Appellants make immediate payment to Appellee of $3,500.00 and that Appellee make immediate tender to Appellants of all available warranty information concerning the flawed bathtub and steam unit. The amended award again provided that the costs of arbitration would be evenly divided between the parties and stated that $66.00 representing Appellants’ “one half of the costs” was payable immediately.

Thereafter, on October 16, 1980, in the Court of Common Pleas of Allegheny County Appellee filed a “Petition to

Confirm Award of Arbitrator.” That same day Appellee ordered the cause for argument, and the court entered an order scheduling the matter for hearing on October 31, 1980. On October 31, 1980, Appellants filed an answer to Appellee’s petition, and the court, upon “due consideration” of Appellee’s petition,

ordered ... the Award of Arbitrator and Amended Award ... approved and confirmed with judgment to be entered thereon in favor of ... Allegheny Home Improvement Corporation, in the sum of Three Thousand Five Hundred Sixty-Six ($3,566.00) Dollars and against ... Charles Franklin and Rene Franklin ... upon Praecipe to the Prothonotary of this Court.

From the order confirming the arbitrator’s award Appellants have appealed to this Court, arguing (1) that Appellee’s Contract rights cannot be enforced without an action in assumpsit; (2) that Appellee’s use of a petition rather than a complaint violates Pa.R.C.P. No. 1007 and bars consideration of Appellee’s claim, and (3) that assuming arguendo a petition can initiate the processing of Appellee’s claim, Appellee has failed to perform the duties of a petitioner (Pa.R.C.P. No. 209) and its petition must therefore be dismissed.

Asserting that the Contract Arbitration Clause does not contain a provision governing entry of judgment, Appellants contend that Appellee cannot obtain judgment on a common law arbitration award without bringing an action in assumpsit.

The Contract Arbitration Clause stipulates that disputes submitted to arbitration are to be decided according to the Construction Industry Rules (“Rules”) of the American Arbitration Association. Section 47 (“Applications to Court”) of the Rules states in pertinent part that “[pjarties to these Rules shall be deemed to have consented that judgment upon the award rendered by the arbitrator(s) may be entered in any Federal or State Court having jurisdiction thereof.”

Both the Supreme and Superior Courts of Pennsylvania have construed common law arbitration agreements with language similar to Section 47, supra, and have held that such language authorizes entry of judgment without prior recourse to an action in assumpsit. “[TJhe parties may effectively provide, in their agreement to arbitrate, authority for entering judgment on the award.” Smith v. Safeguard Mutual Insurance Co., 212 Pa.Super.Ct. 83, 86, 239 A.2d 824, 826 (1968); Gretz v. Esslinger’s Inc., 416 Pa. 111, 114, 204 A.2d 754, 756 (1964); Bartilucci v. Safeguard Mutual Insurance Co., 212 Pa.Super.Ct. 414, 416, 242 A.2d 916, 917 (1968).

Furthermore, “[i]t is the policy of the law to favor the settlement of disputes by arbitration and to promote the swift and orderly disposition of claims.” Children’s Hospital of Philadelphia v. American Arbitration Association, 231 Pa.Super.Ct. 230, 234, 331 A.2d 848, 850 (1974). The Supreme Court of Pennsylvania observed in Gretz that holding ineffective the entry of judgment provision of an arbitration clause would negate the parties’ intent in including an arbitration clause in their contract. The entry of judgment “provision would be rendered useless, if plaintiff were to be required, after the arbitration proceedings, to sue in assumpsit just as though there had been no arbitration and no provision for arbitration.” Gretz 416 Pa. at 114, 204 A.2d at 756.

Appellants’ argument concerning Appellee’s use of a petition, rather than a complaint, is nullified by this Court’s determination that an action in assumpsit is unnecessary where an arbitration clause contains a procedure for entry of judgment. Appellants correctly maintain that Pa. R.C.P. No. 1007 does not provide for an action to be commenced by a petition. However, since Appellee is not required to bring an action to enforce the arbitrator’s award, Appellee is not required to file a complaint.

Moreover, the filing of a petition to confirm an arbitrator’s award has been sanctioned by both the Supreme and Superior Courts of Pennsylvania. In Gretz the plaintiff “filed a motion in the Court of Common Pleas of Philadelphia County to confirm the arbitration award and to have judgment entered thereon.” Id., 416 Pa. at 113, 204 A.2d at 755. In Bartilucci “[t]he appellees petitioned the lower court to confirm the award so that it might be reduced to judgment.” Id. 212 Pa.Super.Ct. at 415, 242 A.2d at 917; Campbell-Ellsworth, Inc. v. Holy Trinity Serbian Orthodox Church-School Congregation, 233 Pa.Super.Ct. 126, 336 A.2d 346 (1975), allocatur denied, June 12, 1975; Owens v. Concord Mutual Insurance Co., 210 Pa.Super.Ct. 235, 237, 232 A.2d 14, 15 (1967), allocatur denied, July 31, 1967. Additionally, in Bartilucci the Gretz opinion was cited approvingly as “a specific precedent for the procedure employed” to obtain judgment on the arbitrator’s award. Bartilucci 212 Pa.Super.Ct. at 416, 242 A.2d at 917.

Finally, Appellants contend that Appellee’s petition must be dismissed because Appellee has not complied with Pa.R. C.P. No. 209 which prescribes the obligations of a petitioner.

Rule 209 explains that within fifteen days of the filing and service of an answer to the moving party’s petition, the moving party (here, Appellee) must either “[pjroceed by rule or by agreement of counsel to take depositions on disputed issues of fact” or “[o]rder the cause for argument on petition and answer.” If the moving party fails to act, “the respondent (here, Appellants) may take a rule as of course on the moving party to show cause why [the moving party] should not proceed____”

In the instant case Appellee filed its petition on October 16, 1980. That same day the trial court issued an order scheduling the petition for hearing on October 31, 1980. Appellants assert that the trial court’s action was premature because the fifteen-day period to which Rule 209 refers had not elapsed before the court acted. Citing Shainline v. Alberti Builders, Inc., 266 Pa.Super.Ct. 129, 403 A.2d 577 (1979), and Zinck v. Smashy’s Auto Salvage, Inc., 250 Pa.Super.Ct. 553, 378 A.2d 1287 (1977), Appellants argue that “[t]here is no provision in [Rule 209] for shortcutting its operation____” Shainline, 266 Pa.Super.Ct. at 137 n. 4, 403 A.2d at 580 n. 4 (quoting Instapak Corp. v. S. Weisbrod Lamp & Shade Co., 248 Pa.Super.Ct. 176, 176 n. 8, 374 A.2d 1376, 1376 n. 8 (1977)). On page ten of their brief Appellants declare that “[t]he parties cannot be deprived of the full fifteen days by any action of the [c]ourt.”

In so framing their argument Appellants have confused the two separate functions of Rule 209. The first function of Rule 209 is to protect the petitioner by affording time for discovery so that the petitioner can, if so inclined, adduce evidence to refute the factual averments in the respondent’s answer.

When a respondent effectively denies material allegations in a petition ..., the petitioner must support his position with ... proof. The procedure for establishing such proof is provided by [Rule 209]____
... To activate the rule, it is incumbent on the petitioner to take depositions or to order the cause for disposition on petition and answer in which event all factual averments in the answer are deemed admitted.

Shainline 266 Pa.Super.Ct. at 136-37, 403 A.2d at 580.

The second function of Rule 209 is to protect the respondent, if the petitioner fails to act during the fifteen-day period, by permitting the respondent, with impunity, to take a rule to show cause why the petitioner should not proceed.

Rule 209 was adopted to cure the dilemma confronting a respondent in counties which did not automatically list petitions for argument ____ In those counties, when controlling facts were in controversy, the respondent was helpless to move the case to conclusion. If he set the case down for argument, his action was treated as an admission of the facts stated in the petition. A respondent, therefore, had to sit by and await further action at the petitioner’s pleasure. 1 Goodrich-Amram § 209(2).

Cheltenham National Bank v. George B. Henne & Co., 237 Pa.Super.Ct. 311, 314, 353 A.2d 59, 60 (1975). “[T]o expedite the proceedings, the respondent may, after 15 days, himself order the cause for argument on petition and answer, in which event ... all averments of fact in the answer are deemed admitted.” Shainline 266 Pa.Super.Ct. at 137, 403 A.2d at 580 (footnote deleted); Maurice Goldstein Co. v. Margolin, 248 Pa.Super.Ct. 162, 374 A.2d 1369 (1977).

Therefore, contrary to Appellants’ argument, expedited processing of a petition comports with the reason underlying the promulgation of Rule 209. Rule 209 has repeatedly been held not to abrogate Local Rules of Court which expedite the listing of petitions for argument as long as the petitioner is provided with an adequate opportunity to take depositions on disputed factual issues. Lincoln Bank v. Kelly, 282 Pa.Super.Ct. 261, 422 A.2d 1106 (1980) (Cavanaugh, J., concurring and dissenting); Arthurs Travel Center, Inc. v. Alten, 268 Pa.Super.Ct. 330, 408 A.2d 490 (1979), allocatur granted, November 21, 1979; Instapak Corp.; Cheltenham National Bank. “[T]he court [can] itself set a timetable for the taking of depositions and for decision .... The court must give notice of such a schedule, however.” Shainline 266 Pa.Super.Ct. at 138 n. 5, 403 A.2d at 581 n. 5; Nigrelli v. Cody, 281 Pa.Super.Ct. 156, 421 A.2d 1195 (1980).

In the present case Appellee chose not to take depositions but rather, on the day Appellee filed its petition, Appellee also ordered the cause for argument on petition and answer by applying to the court’s minute clerk for an argument date in accordance with Allegheny County Local Rule of Civil Procedure 209*l(a). Thereafter, as Local Rule 209* 1(a) required, Appellee gave notice to Appellants of the argument date. Thus, Local Rule 209*l(a) effectively safeguarded both the recognized right of the petitioner (Appellee) to elect to obtain evidence through depositions and the recognized right of the respondents (Appellants) to a speedy disposition of the petition.

Appellants correctly maintain that under Rule 209 Appellee’s decision to forego depositions is considered an admission of “the existence of all facts properly pleaded in [Appellants’] answer.” America Corp. v. Cascerceri, 255 Pa.Super.Ct. 574, 580 n. 6, 389 A.2d 126, 129 n. 6 (1978) (emphasis added); Shainline.

In their answer Appellants allege (1) that Appellee must “bring a separate action [in assumpsit] to obtain judgment on the Award [of the arbitrator]”; (2) that the “Arbitrator was without jurisdiction to enter the Award and impose costs,” and (3) that “the action in entering the Award ... constituted such irregularity ... as to deprive [Appellants] of a fair hearing, and ... resulted in ... an unjust, inequitable and unconscionable award.” Because all of Appellants’ allegations concern questions of law, not issues of fact, Appellee’s failure to take depositions is not deemed an admission of Appellants’ averments.

Moreover, attached to Appellee’s petition were various exhibits including copies of the Contract between Appellee and Appellants; the arbitrator’s original opinion and award; the arbitrator’s amended award which substantially reiterated the terms of his original award; a letter of August 18, 1980, from the American Arbitration Association, explaining to the parties’ attorneys the division of arbitration costs, and the Construction Industry Arbitration Rules. With the aid of this documentary evidence which was not rebutted by Appellants’ answer, the trial court properly determined that the parties’ Contract provided a procedure for enforcing the arbitrator’s award without resort to an action in assumpsit and empowered the arbitrator to assess costs against both parties.

In addition, the trial court wisely observed that Appellants did not plead their third allegation “with even the slightest suggestion of specificity,” offering no facts indicating irregularity in the arbitration proceedings. The heavy burden of proof placed on a party claiming to be aggrieved by some fault in the arbitration process was examined at length by this Court in Mellon v. Travelers Insurance Co., 267 Pa.Super.Ct. 191, 195-96, 406 A.2d 759, 761 (1979):

Judicial review of common law arbitration awards is narrowly circumscribed____ Courts will not set aside an award because the arbitrators made mistakes of law or fact____ Rather, to set aside an award the court must find fraud, misconduct, corruption, or similar irregularity, leading to an unjust, inequitable, or unconscionable result ____ Furthermore, to prevail on this ground, the appealing party must show actual fraud, involving collusion with one of the parties, or misconduct intended to create a fraudulent result____ An argument that the arbitrators were prejudiced or partial, or that they reached an award so unjust that it constitutes constructive fraud, will not be heeded____ Similarly, an ‘irregularity’ will not be found simply upon a showing that an incorrect result was reached____
Appellants nonetheless argue that the award here typifies the kind of abuse the Supreme Court reserved for review in Allstate Insurance Co. v. Fioravanti, [451 Pa. 108, 116, 299 A.2d 585, 589 (1973)]:
It is possible to hypothecate [sic] an arbitration award which imports such bad faith, ignorance of the law and indifference to the justice of the result as to cause us to give consent to the phrase ‘other irregularity’ since it is the most definitionally elastic of the grounds for vacatur ____
The Supreme Court, however, has limited Fioravanti, holding that a showing that an award is ‘blatantly at odds with the contract involved ... without more, cannot be a basis for a finding of such misconduct as would justify setting the award aside.’ Runewicz v. Keystone Insurance Co., [476 Pa. 456, 463, 383 A.2d 189, 193 (1978)].

Since Appellants have not pleaded any facts supporting their averment of irregularity and since Appellee’s exhibits permit a finding that the arbitrator’s award is consistent with the parties’ Contract, Appellants’ argument concerning irregularity must fail.

Accordingly, the order of the Court of Common Pleas of Allegheny County, dated October 31, 1980, confirming the arbitrator’s award in favor of Appellee, is affirmed.

      . Article 14 ("Arbitration Clause”) of the Contract states:
      All claims or disputes arising out of this Contract or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. Notice of the demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association and shall be made within a reasonable time after the dispute has arisen.

      . The parties agree that the Contract Arbitration Clause provides for common law arbitration and is not governed by any statutory provisions. Campbell-Ellsworth, Inc. v. Holy Trinity Serbian Orthodox Church-School Congregation, 233 Pa.Super.Ct. 126, 130, 336 A.2d 346, 347 (1975), allocatur denied, June 12, 1975; Smith v. Safeguard Mutual Insurance Co., 212 Pa.Super.Ct. 83, 85-86, 239 A.2d 824, 826 (1968).

      . Section 48 (“Administrative Fees") of the Construction Industry Arbitration Rules of the American Arbitration Association states in pertinent part that the American Arbitration Association
      shall prescribe an administrative fee schedule and a refund schedule to compensate it for the cost of providing administrative services ....
      The administrative fees shall be advanced by the initiating party or parties in accordance with the administrative fee schedule, subject to final apportionment by the arbitrator in the award.
      By a letter of April 18, 1980, the American Arbitration Association informed counsel for both parties that since the arbitrator's award provided that the costs would be shared equally by the parties, Appellants were to pay Appellee the sum of $66.00, one half of the $132.00 which Appellee, as the initiating party, had advanced in accordance with Section 48, supra.

      The arbitrator’s amended award thus referred to the specific dollar amount ($66.00) which was Appellants’ portion of the costs.

      . As a corollary to their third argument Appellants assert that because Appellee did not take depositions, Appellee is deemed to have admitted the averments of Appellants’ answer, and accordingly its petition must fail. For a discussion of Appellants’ assertion, see infra.

      . Section 1 ("Agreement of Parties”) of the Construction Industry Arbitration Rules states in pertinent part that *‘[t]he parties shall be deemed to have made these Rules a part of their arbitration agreement whenever they have provided for arbitration under the Construction Industry Arbitration Rules."

      . Allegheny County Local Rule of Civil Procedure 209* 1(a) states: "Any party may order the cause for argument by applying for a date and time to the minute clerk in the assignment room. Prompt written notice thereof shall be served by the party obtaining the date upon all other parties to the proceeding at least ten (10) days before the argument date."

      . See n. 3, supra.

      . See discussion of Appellants’ first argument on appeal, supra.

      . See n. 3, supra.


author: JOHNSON, Judge:

text:
    454 A.2d 108
    COMMONWEALTH of Pennsylvania v. Frederick ARELT, Appellant.
    Superior Court of Pennsylvania.
    Argued June 15, 1982.
    Filed Dec. 17, 1982.
    Petition for Allowance of Appeal Denied March 28, 1983.

      Robert L. Campbell, Pittsburgh, for appellant.
    Kenneth Benson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

This is an appeal from the Order of October 2, 1981 denying Appellant’s Motion to Dismiss Indictment on Plea of Double Jeopardy. For the following reasons, we affirm.

Appellant was arrested on January 16, 1981 for the shooting death of Eric Nemec, a co-worker of Appellant. An information was filed on February 27, 1981 charging him with criminal homicide. A jury trial was originally scheduled for June 22, 1981. As a result of schedule conflicts and the need for additional time for case preparation, the trial date was rescheduled to July 13, 1981. On that date, Appellant appeared in open court before the Honorable James P. McGregor and after waiving his right to a trial, entered a general plea of guilty to the charge. It was agreed that Judge McGregor would determine the degree of homicide upon the conclusion of the Commonwealth’s evidence and after presentation of psychiatric testimony by the defense. Upon the conclusion of the Commonwealth’s case and after presentation of testimony by one defense witness, a continuance was granted until August 5, 1981 because of the inability of Appellant’s expert witnesses to be present in court.

Subsequent to the July 13th hearing, certain allegedly prejudicial letters were written by members of the victim’s family and directed to, inter alia, Judge McGregor, the district attorney and certain members of the media. The letters included several references to certain evidence not presented in the Commonwealth’s case and in general were highly critical of the presentation of the Commonwealth’s case and were clear concerning the writers’ hatred of Appellant. The letters communicated the writers’ fears that Appellant would not be convicted of first degree murder because of the inadequacies of the presentation of the Commonwealth’s case.

Appellant thereafter filed a motion to withdraw his guilty plea which was subsequently granted by Judge McGregor, who also recused himself from any further consideration or deliberation in the case.

Upon reassignment of the case to a different judge, Appellant filed a Motion to Dismiss on the basis of double jeopardy. The motion was denied on October 2, 1981 and this appeal followed.

The sole issue presented is whether the prejudicial extrajudicial conduct of the victim’s family resulting in withdrawal of Appellant’s guilty plea and recusal of the judge who presided over its entry constitutes a bar to subsequent trial on the grounds of the double jeopardy clause of the United States Constitution.

It is clear that a pre-trial order denying a motion to dismiss on double jeopardy grounds constitutes a final order and is immediately appealable. Commonwealth v. Buechele, 298 Pa.Super. 418, 444 A.2d 1246 (1982).

Appellant contends that the instant case involves a double jeopardy framework analogous to those involving prosecutorial overreaching. He alleges that the acts of the victim’s family should be imputed to the prosecution and that their extrajudicial actions allegedly attempting to abort the proceedings destroyed the integrity of those proceedings and bar any further reprosecution of Appellant on these charges.

The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606 [96 S.Ct. 1075, 1079, 47 L.Ed.2d 267] (1976). As part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a “valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U.S. 684, 689 [69 S.Ct. 834, 837, 93 L.Ed. 974] (1949). The Double Jeopardy Clause, however, does not offer a guaranty to the defendant that the State will vindicate its societal interest in the enforcement of the criminal laws in one proceeding. United States v. Jorn, 400 U.S. 470, 483-484 [91 S.Ct. 547, 556-557, 27 L.Ed.2d 543] (1971) (plurality opinion); Wade v. Hunter, supra [336 U.S.] at 689 [69 S.Ct. at 837]. If the law were otherwise, “the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again.” Wade v. Hunter, supra, at 689 [69 S.Ct. at 837].

Oregon v. Kennedy, 456 U.S. 667, 671-72, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416, 422 (1982) (footnote omitted).

The prohibition of double jeopardy, as it relates to subsequent prosecutions, is irrelevant until jeopardy has once attached. Commonwealth v. Potosnak, 289 Pa.Super. 115, 432 A.2d 1078 (1981). Jeopardy attaches in a nonjury prosecution when the court has begun to hear evidence. Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979) (Per Nix, J., with two Justices concurring), cert. denied, Klobuchir v. Pennsylvania, 445 U.S. 952, 100 S.Ct. 1602, 63 L.Ed.2d 787 (1980), reh. denied, 446 U.S. 947, 100 S.Ct. 2178, 64 L.Ed.2d 804 (1980). Since the court had accepted Appellant’s guilty plea, jeopardy had attached. See Commonwealth v. Klobuchir, supra.

Once jeopardy has attached, a voluntary request by a defendant for a mistrial or new trial is not a bar to reprosecution unless the defendant’s motion was caused by prosecutorial overreaching. Commonwealth v. Custor, 296 Pa.Super. 235, 442 A.2d 746 (1982). We have previously held that the request for a withdrawal of a guilty plea is analogous to the request at trial for a mistrial. Commonwealth v. Potosnak, supra.

In this regard, we have stated:

The law concerning the effect of intentional prosecutorial misconduct on reprosecution as applied to double jeopardy is found in Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980) and in Commonwealth v. Potter, 478 Pa. 251, 386 A.2d 918 (1978). These cases state that retrial will be barred when prosecutorial misconduct arises to the level of “overreaching.” Two types of overreaching have been enunciated by the United States Supreme Court. The first involves prosecutorial misconduct designed to provoke a mistrial in order to secure a more favorable opportunity to convict. United States v. Dinitz, 424 U.S. at 611, 96 S.Ct. at 1081, 47 L.Ed.2d at 276. The second type is prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. Lee v. United States, 432 U.S. at 33, 97 S.Ct. at 2147, 53 L.Ed.2d at 89.
However, the Supreme Court of the United States has stated that “where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” United States v. Dinitz, 424 U.S. at 607, 96 S.Ct. at 1079-80, 47 L.Ed.2d at 274, quoting United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556 (1971) (footnote omitted), see also Lee v. United States, supra; Commonwealth v. Starks, supra.

Commonwealth v. Potosnak, 289 Pa.Super. at 122, 432 A.2d at 1081-82.

Also, the U.S. Supreme Court has held that prosecutorial misconduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. Oregon v. Kennedy, 456 U.S. at 675-76, 102 S.Ct. at 2089, 72 L.Ed.2d at 424.

Appellant wishes this court to impute the alleged misconduct of the victim’s family to the prosecution and thereby declare the prosecution guilty of overreaching. This we will not do..

It is undisputed that the cause of Appellant’s withdrawal of his guilty plea was the prejudicial effect of the letters written by the victim’s family to various parties, including the judge who presided over the guilty plea hearings. Appellant has presented no evidence that the actions of the victim’s family were prompted in any way by the actions or desires of the prosecution to terminate the proceedings in the instant case. In fact, it appears from the record that the letters were prompted by the belief of certain members of the victim’s family that the prosecution of the case was inadequate in terms of the presentation of evidence against Appellant. Clearly, the relationship between the family of the victim and the assistant district attorney responsible for presenting evidence against Appellant was antagonistic. Therefore, proof of intent that the prosecution desired Appellant to withdraw his guilty plea could result in reprosecution being barred by double jeopardy. Oregon v. Kennedy, supra. The evidence in the instant case indicates the opposite; the prosecution did not wish this prosecution to be terminated.

We will not impute misconduct by third parties to the prosecution thereby barring reprosecution where there is an absence of evidence indicating that the prosecution either initiated or encouraged such misconduct by the third party, either directly or indirectly.

The order of October 2, 1981 is affirmed.

      . 18 Pa.C.S.A. § 2501(a).

      . U.S.C.A. Const.Amend. 5. The double jeopardy provision of the Fifth Amendment applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).