author: CIRILLO, Judge:

text:
    483 A.2d 537
    COMMONWEALTH of Pennsylvania, Appellant, v. Raymond FISHER.
    Superior Court of Pennsylvania.
    Argued April 24, 1984.
    Filed Oct. 12, 1984.

      Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    William P. James, Philadelphia, for appellee.
    Before McEWEN, CIRILLO and BECK, JJ.
   OPINION

CIRILLO, Judge:

The Commonwealth appeals from an order discharging appellee Raymond Fisher under Pennsylvania Rule of Criminal Procedure 1100.

This case arose from the rape of a seventeen-year-old girl in Philadelphia on July 20, 1976. A criminal complaint charging Fisher with the crime was filed the next day; however, Fisher managed to elude apprehension until November 11, 1978. At least seven times over the course of the next four years, Fisher was adjudged incompetent, and consequently could not be brought to trial for most of that period. On August 26, 1982, the Court of Common Pleas of Philadelphia County found Fisher to be competent and ordered his case to proceed to trial on September 22, 1982. Before the date set for trial, Fisher’s counsel, pursuant to Pa.R.Crim.P. 1100(f), moved to dismiss the charges on the ground that Fisher’s right to a speedy trial had been denied. On the 22nd of September the court entertained arguments of counsel on the motion to dismiss. The court continued the trial to October 6, 1982, and reserved ruling on the motion until then. After reconvening on October 6th, the court granted the defense motion and discharged Fisher. We reverse.

Rule 1100, as applicable to this case, provides that the Commonwealth has 180 days from the filing of a criminal complaint to bring the defendant to trial. Pa.R. Crim.P. 1100(a)(2). Any delay beyond 180 days must be accounted for either by an extension granted to the Commonwealth under Rule 1100(c), or by an exclusion of time attributable to defense delay under Rule 1100(d). Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983). A defendant may enforce his rights under the rule by filing a petition to dismiss under Rule 1100(f).

After analyzing the long and tortuous procedural history of this case, we have concluded that all periods of delay beyond 180 days were properly accounted for under the rule, and hence discharge was erroneous.

It is beyond dispute that Fisher was a fugitive from justice for the period from 7/21/76 to 11/11/78, when finally he was arrested. Fisher absented himself throughout this entire period despite duly diligent efforts by the police to locate him, and the entire period must therefore be chalked up to unavailability and excluded from the Rule 1100 computation. Commonwealth v. Winn, 327 Pa.Super. 296, 475 A.2d 805 (1984); Commonwealth v. Lyles, 315 Pa.Super. 194, 461 A.2d 1237 (1983). Thus the 180 days the Commonwealth had to bring Fisher to trial did not begin to run until November 11, 1978.

The running of the period was tolled soon thereafter when, on December 21, 1978, the defendant requested and received a continuance of the preliminary hearing in order to undergo psychological evaluation of his competency. See Mental Health Procedures Act of July 9, 1976, P.L. 817, No. 143, § 402, effective in 60 days, as amended by Act of Nov. 26, 1978, P.L. 1362, No. 324, § 2, effective in 60 days, 50 P.S. § 7402. The testing resulted, on January 24, 1979, in a judicial declaration that Fisher was incompetent to stand trial. The law is clear that the Commonwealth is constitutionally barred from trying a defendant who is incompetent. Commonwealth v. McQuaid, 464 Pa. 499, 347 A.2d 465 (1975). Furthermore, our Court has held that a defendant is unavailable for purposes of Rule 1100 from the time he requests a continuance for evaluation of his competency until he is adjudged competent to stand trial. Commonwealth v. Millard, 273 Pa.Super. 523, 417 A.2d 1171 (1979); Commonwealth v. Quinlan, 259 Pa.Super. 536, 393 A.2d 955 (1978) (plurality opinion); Commonwealth v. Reese, 237 Pa.Super. 326, 352 A.2d 143 (1975) (allocatur refused); See also Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984); Pa.R.Crim.P. 1100 Comment. Therefore, all delay stemming from appellee’s continuance of 12/21/78 must be excluded from the run time.

The period of exclusion attributable to the December 21 continuance lasted until May 7, 1979, when Fisher was declared competent. At that point, Rule 1100 commenced again to run until May 22, 1979, when the court ordered further psychiatric testing to determine Fisher’s competency to stand trial. Fisher’s psychological status remained undetermined until September 5, 1979, when again he was found incompetent. Over the next year and a half, Fisher’s condition was repeatedly reevaluated; the incompetency finding of 9/5/79 was not reversed, however, until February 19, 1981, when the court declared him competent to stand trial.

The 180-day period ran again until May 5, 1981, on which date defense counsel was unavailable for trial and the defendant waived the running of the rule until September 28, 1981. Meanwhile, on September 1, 1981, the court again ordered Fisher to undergo psychiatric examination, thus tolling the rule. On October 1, 1981, the court found Fisher incompetent and ordered him committed for treatment pursuant to the Mental Health Procedures Act. Fisher was not again adjudged competent until November 6, 1981. The entire period between 5/5/81 and 11/6/81 must be excluded from the Rule 1100 computation as attributable to appellee’s waiver of the rule, see Commonwealth v. Dunbar, 508 Pa. 590, 470 A.2d 74 (1983); cf. Pa.R.Crim.P. 1100(d)(2) (effective January 1, 1982), or to his uncertain competency status, see supra.

The running of the rule was tolled again on November 20, 1981, when the case was continued due to Fisher’s apparent relapse to incompetency. On November 24, he was recommitted for lack of competency. He was next found competent on December 30, 1981. As of the 30th of December, 1981, according to our calculation, only 140 days of the Rule 1100 period had elapsed. These 140 days not excludable under Rule 1100(d) were:

11/11/78-12/20/78 39 days

5/7/79 - 5/21/79 14

2/19/81- 5/4/81 74

11/6/81 -11/19/81 13

Total 140 days

In arriving at our figure, we have applied 1 Pa.C.S. § 1908, which mandates that in computation of statutory time periods, the first day of the period be excluded and the last day included in the computation. See Commonwealth v. Sanford, 497 Pa. 442, 441 A.2d 1220 (1982) (1 Pa.C.S. § 1908 applicable to Rule 1100 calculations). The dates on which appellee or his counsel became unavailable for trial — 12/21/78, 5/22/78, 5/5/81, and 11/20/81 — must be excluded from the computation, since obviously the Rule 1100 period cannot continue to run on days on which the Commonwealth is prevented from proceeding in the case. See Commonwealth v. Lyles, supra.

Returning our attention to the adjudication of competency entered 12/30/81, the court that same day, by agreement of counsel, extended the Rule 1100 run date to March 30, 1982, and continued the case to February 18, 1982. On February 18, the defendant received a continuance so that the public defender could withdraw from the case and new counsel be appointed. Shortly thereafter, the court again ordered psychiatric testing for the defendant, who was again declared incompetent on February 25, 1982. He remained under incompetency commitment until August 26, 1982, when he was found competent again. There is no question that the entire period commencing February 18 and ending August 26 was excludable from the Rule 1100 period, as time consumed either by a defense-requested continuance, see Rule 1100(d)(3)(h) & Note, or the unavailability of the defendant, Rule 1100(d)(3)(i).

The real crux of this case is the treatment to be accorded the period 12/30/81-2/18/82. We find that this period was excludable under the holding of Commonwealth v. Guldin, 502 Pa. 66, 463 A.2d 1011 (1983). See Commonwealth v. Byrd, 493 Pa. 178, 183 n. 7, 425 A.2d 722, 724 n. 7 (1981) (it is for the appellate court to decide the legal consequences of periods of delay under Rule 1100(d)). In Guldin our Supreme Court held that where the Commonwealth is prepared to go to trial within the Rule 1100 period, and for reasons of trial strategy defense counsel acquiesces in a purported 1100(c) extension beyond the regular run date, the period of extension may be treated as excludable continuance time under 1100(d). Postponement of trial was found to be in the defendant’s best interests in Guldin for a number of strategic reasons. In the present case as well, it is clear that postponement of trial on 12/30/81 could only inure to the benefit of the defendant. Fisher’s incompetency was a major factor working in his favor as far as the criminal charges against him were concerned. Indeed, the defendant, through his various counsel twice moved to discharge the prosecution against him on the basis that he was likely to remain incompetent indefinitely. See 50 P.S. § 7403(d), (e). The second such motion, filed by appellee’s present counsel on April 28, 1982, was made possible only by the public defender’s decision to acquiesce in and take advantage of the extension of the Rule 1100 run date to March 30, 1982. It will be remembered that when the public defender agreed to the extension on December 30, 1981, appellee had just been adjudged competent. However, only by countenancing further delay at that point could the public defender hope, on the contingency of a relapse by appellee into incompetency (as had happened so many times before), to renew at a later point the request for discharge on the ground of continuing incompetency. As it turned out, appellee later was in fact adjudged incompetent again, after the court on 2/22/82 continued his case for psychiatric examination. This point would never have been reached if not for the extension to March 30, 1982, because otherwise the Rule 1100 period would have expired on February 8, 1982, forty days after the adjudication of competency on 12/30/81. Barring unforeseen circumstances, and presuming as we must that the Commonwealth would have proceeded diligently during those forty days, appellee would have been tried without another opportunity to raise the issue of continuing incompetency. See Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981) (Court presumed Commonwealth would have made pro forma requests for extension which would have been granted had the Rule 1100 period not been stayed by appeal).

It is said that delay is a defendant’s best lawyer. Where, as here, the defendant has assented to a period of delay and later takes advantage of it, we should be loath to find a violation of the accused’s speedy trial rights. See Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984); Commonwealth v. Dunbar, supra; see also Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981).

Rule 1100 “serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,” Commonwealth v. Brocklehurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197 n. 4, 409 A.2d 308 n. 4 (1980). The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the system.

Commonwealth v. Genovese, 493 Pa. 65, 69-70, 72, 425 A.2d 367, 369-70, 371 (1981).

Here it is crystal clear that the Commonwealth engaged in no misconduct designed to thwart Fisher’s right to be brought speedily to trial. The record shows the contrary, that the Commonwealth was ever ready to afford appellee his precious right to a speedy trial, and was repeatedly frustrated in its efforts by the unfortunate happenstance of appellee's bouts with mental infirmity.

When finally the court declared Fisher competent on August 26, 1982, it immediately scheduled the case for trial on September 22, 1982. As we said at the outset, on the trial date the court took up appellee’s Rule 1100(f) motion instead, granting that motion on October 6, 1982. The Commonwealth in the meantime had filed an 1100(c) petition for extension on September 24. The court dismissed this petition as untimely. However, under our calculation there were still forty days of run time left when appellee became available on August 26, 1982. Clearly the Commonwealth’s petition was filed within forty days of August 26, and thus was timely. The court’s erroneous refusal to rule on the merits of the Commonwealth’s extension petition must be remedied by reinstatement of the petition for consideration on remand. Cf. Commonwealth v. Paprocki, 327 Pa.Super. 270, 475 A.2d 792 (1984).

As regards the period following August 26, 1982, we note further that under Commonwealth v. Robinson, 498 Pa. 379, 446 A.2d 895 (1982), the time to be excluded under Rule 1100(d) is not limited to the time during which the defendant is unavailable, but also encompasses the actual delay caused by the defendant’s unavailability. Accord, Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977); Commonwealth v. Bell, supra; Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983); Commonwealth v. Colon, supra; Commonwealth v. Perry, 296 Pa.Super. 359, 442 A.2d 808 (1982). Assuming that on August 26 the hearing court acted diligently and set trial for September 22 because it was the earliest practicable trial date, the entire delay up to and including September 22 was excludable under Rule 1100(d). See Robinson, supra.

The order discharging appellee must be reversed, and the case remanded for proceedings consistent with this opinion.

Reversed and remanded; jurisdiction relinquished.

BECK, J., concurred in the result.

      . On February 28, 1979, a judge of the Philadelphia Court of Common Pleas signed a bench notation that stated, "Information from ADA R. Myers indicates deft, has been declared competent.” In the same notation, the court scheduled a preliminary hearing for March 7, 1979. The hearing took place as scheduled, and Fisher was held for court. We find that the court's bare reliance on the representations of assistant district attorney Myers were insufficient to constitute the required judicial finding of competency.

      . The trial court erroneously relied on Commonwealth v. Fisher, 283 Pa.Super. 370, 424 A.2d 510 (1981), for the proposition that appellee was available for those periods during which he was hospitalized for testing but not officially adjudged incompetent. Such a reading of Fisher conflicts with the clear holdings of Millard, Reese, and Quinlan, supra. Fisher held only that a defendant is not unavailable when he has been adjudged competent but remains committed pursuant to the civil provisions of the Mental Health Procedures Act.


source: Caselaw Access Project

author: JOHNSON, Judge: WIEAND, Judge,

license: Public Domain

text:
    483 A.2d 542
    COMMONWEALTH of Pennsylvania v. Albert CARR, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 2, 1984.
    Filed Oct. 12, 1984.
    Petition for Allowance of Appeal Denied May 6, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and LIPEZ, JJ.
   JOHNSON, Judge:

Albert Carr was tried on various criminal charges in the Municipal Court of Philadelphia but was found guilty only of possessing an unlicensed firearm in violation of a particular section of the Uniform Firearms Act set forth at 18 Pa.C.S. § 6106(a). After a fine and sentence of probation had been imposed, Carr filed a petition for certiorari in the Court of Common Pleas. This petition was denied, and an appeal was taken to this Court in which Carr contends (1) that the evidence was insufficient to sustain the conviction and (2) that the firearm should have been suppressed as the product of an unlawful arrest. Finding no merit in these contentions, we affirm the conviction.

On April 22, 1981, members of the Philadelphia Police Department obtained and executed a search warrant for controlled substances believed to be stored upon and sold from a gasoline service station at 2000 North Broad Street in the City of Philadelphia. Although the owner was then known only by description, he was subsequently identified as Mr. Cummings. When police arrived they found a group of approximately eight males standing in front of the bay area. As these men were being led into the service station building so that the search could be conducted without interference, Appellant Carr was observed dropping a loaded .32 caliber revolver into a cardboard box. He conceded at trial that he had been carrying the revolver when the police arrived. He testified, however, that the service station was his place of employment and that he was working when he was arrested.

Carr argues on appeal that Mr. Cummings’ service station was “his fixed place of business” and, therefore, he was permitted to carry a loaded firearm without a license at the service station because of a specific exemption contained in 18 Pa.C.S. § 6106(a).

Possession of a firearm without a license is made an offense by 18 Pa.C.S. § 6106(a), which provides as follows:

(a) Offense defined. — No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefore as provided in this subchapter.

The Statutory Construction Act at 1 Pa.C.S. § 1903(a) states in relevant part that “(w)ords and phrases shall be construed according to rules of grammar and according to their common and approved usage.” “His” as used in 18 Pa.C.S. § 6106(a) is a possessive pronoun connotating ownership or control over the “fixed place of business.” The gasoline service station clearly was the fixed place of business of the proprietor, Mr. Cummings, and not the place of business of Appellant Carr because Carr had no controlling, proprietary, or possessory interest in the service station. Our legislature could not have intended to permit every employed individual in the Commonwealth to carry without a license a concealed, loaded firearm on the job site.

Assuming arguendo that § 6106(a) contains some ambiguity, the Statutory Construction Act at 1 Pa.C.S. § 1921 requires that every statute “be construed, if possible, to give effect to all its provisions” and 1 Pa.C.S. § 1922(2) permits the presumption that the legislature “intends the entire statute to be effective and certain.” As this court recently stated:

The Legislature is presumed to have intended to avoid mere surplusage in the words, sentences and provisions of its laws. Courts must therefore construe a statute, if possible, so as to give effect to every word.

Habecker v. Nationwide Ins. Co., 299 Pa.Super. 463, 471, 445 A.2d 1222, 1226 (1982).

In addition to the “abode or fixed place of business” exceptions as set forth in 18 Pa.C.S. § 6106(a), subsection (b) of section 6106 lists ten specific exceptions including:

(6) Agents, messengers, and other employees of common carriers, banks, or business firms, whose duties require them to protect moneys, valuables and other property in the discharge of such duties.

If under 18 Pa.C.S. § 6106(a) all employees were permitted to carry concealed firearms without a license while on the job, 18 Pa.C.S. § 6106(b)(6) would be mere surplusage. There would have been no need for the legislature to refer to employees of business firms in section 6106(b)(6). In order to give full effect to every word of section 6106(b)(6), the reference to “his ... fixed place of business” in section 6106(a), must be limited to those persons who have a controlling, proprietary, or possessory interest in their place of business.

Up until this time no appellate court in Pennsylvania has decided what the legislature meant by “his ... fixed place of business” in 18 Pa.C.S. § 6106(a). Similar language in gun control statutes of other jurisdictions which have adopted the Uniform Firearms Act has been interpreted by the courts, however.

In People v. Free, 112 Ill.App.3d 449, 68 Ill.Dec. 81, 445 N.E.2d 529 (1983) the court reviewed a conviction for unlawful use of weapons. Under Section 24-l(a)(10) of the Illinois Criminal Code of 1961 [Ill.Rev.Stat., ch. 38, § 24-l(a)(10) ] a person commits the offense of unlawful use of weapons if he knowingly:

Carries or possesses on or about his person ... except when on his land or in his own abode or fixed, place of business, any pistol, revolver, stun gun or taser [sic] or other firearm. (Emphasis added.)

Free was charged with violating Section 24-l(a)(10) when he carried a pistol into the restaurant where he worked and its adjoining parking lot. The court found that Free did not come within the statute’s exception. In explaining the court’s holding, Justice Green, speaking for the court, stated:

Unless the employee carrying the weapon needs to use the weapon in his employment, such as is the case with a guard or nightwatchman, little authority supports the view that the employee comes within statutory exemptions similar to that in section 24-l(a)(10) ... (Legislative bodies cannot be assumed to have intended to permit all employees to carry weapons while at work.

112 Ill.App.3d at 452-53, 68 Ill.Dec. at 83-84, 445 N.E.2d at 531-32.

In Berkley v. United States, 370 A.2d 1331 (D.C.Cir.1977), the defendant was found guilty of violating a weapons statute similar to that of Pennsylvania and Illinois and argued that he was on his place of business. The defendant was a lab technician in the blood unit of a local hospital and was in possession of a handgun in the hospital when he was arrested. The court of appeals affirmed his conviction stating, “it cannot be assumed that [Congress] intended, in a jurisdiction where there are countless numbers of employees reporting every day to governmental agencies, to write in an exception permitting every employee to carry a loaded pistol while working.” 370 A.2d at 1333. The court stated that the fixed place of business exemption was applicable only to those who have a controlling, proprietary or possessory interest in the business premises in question. Since the defendant had no such interest in the hospital’s blood unit the defendant’s conviction was affirmed.

In State v. Valentine, 124 N.J.Super. 425, 307 A.2d 617 (1973) , the defendant who worked as a manager of a bar, was convicted of carrying a weapon in a public place without a permit. The defendant argued that he was about his place of business and therefore was exempted from the weapons statute. The appellate court noted that the defendant had no proprietary interest in the bar and there was no evidence that the revolver had been acquired by the owner of the bar and in the possession of the defendant in connection with the operation of the business. The defendant’s conviction was affirmed.

In People v. Francis, 45 A.D.2d 431, 358 N.Y.S.2d 148 (1974) , the defendant, who worked in U.S. Post Office attached to Kennedy Airport, was arrested while on his job with a pistol in his possession. The court stated that the defendant had no authority or delegation to carry the revolver and the possession of the gun was not in any way in furtherance of any function or duty being performed by him for the postal service. His conviction was affirmed.

At first blush the case of Peoples v. State of Florida, 287 So.2d 63 (1973) appears to be contra to the decisional law in Illinois, the District of Columbia, New Jersey and New York. The Supreme Court of Florida in that case reversed a judgment of conviction for carrying a concealed firearm. The relevant gun control statute in Florida exempted “(a) person possessing arms at his home or place of business.” Fla.Stat. § 790.25(3)(n). In Peoples, however, there was unrebutted testimony that the defendant was both a resident and an employee of the place of business where he was arrested. The Florida court did not even have to address the question of whether Peoples, as an employee, could carry a concealed firearm at the business establishment where he worked since the place where Peoples worked was also his home.

There is little case law from other jurisdictions supporting the proposition that an employee of a retail establishment falls within the “place of business” exception to criminal statutes which generally prohibit the carrying of concealed weapons. The Court of Criminal Appeals of Texas in Flores v. State, 486 S.W.2d 577 (1972) reversed a conviction of an employee of a cocktail lounge who had a pistol in his possession while carrying out his duties of employment at the lounge. The statute in effect when the defendant Flores was charged stated that Article 483 dealing with unlawfully carrying arms was not applicable to a person “on one’s own premises or place of business.” According to the Court of Criminal Appeals the trial court in Flores erred when it refused to submit a charge to the jury that would have called for acquittal if the jury found that Flores was employed by the cocktail lounge and carrying out the duties of his employment at the time of his arrest.

In the instant case there is not a scintilla of evidence that Carr was carrying a loaded revolver at the gasoline service station in furtherance of any legitimate employment function. We agree with the great weight of authority from other jurisdictions that limits the right of individuals to carry concealed firearms on the job site without a license. The public interest would not be served by permitting millions of employed Pennsylvanians to carry a loaded pistol on the job.

An additional argument raised by Carr suggests that the gun which he dropped into the cardboard box should have been suppressed because he was forced to abandon it when the police illegally attempted to move Appellant and other men into the garage bay. Unless the abandonment is “coerced by unlawful police action,” the property abandoned is admissible. Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976). Since we believe the police acted lawfully in the instant case, we affirm.

In Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) the police, while executing a valid warrant to search a home for narcotics, detained a suspect found descending the front steps outside the home and requested his assistance in gaining entry to the premises. After narcotics had been found in the basement, the police arrested the suspect and searched him finding an envelope containing 8.5 grams of heroin. The Court in Summers held that the initial detention of the suspect during the execution of a valid search warrant did not violate the suspect’s Fourth Amendment right to be secure against an unreasonable seizure of his person since the warrant implicitly carried with it the limited authority to detain persons on the premises while a proper search was being conducted.

One reason set forth by the court in Summers, to support this limited authority to detain persons on the premises, was the desire to minimize the potential risks to the police officers on the scene. Justice Stevens, speaking for the majority stated:

Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation, (footnote omitted)

Id. at 702-703, 101 S.Ct. at 2594, 69 L.Ed.2d at 349-350. See also Commonwealth v. Reicherter, 317 Pa.Super. 256, 261, 463 A.2d 1183, 1185 (1983).

The instant case, like Summers, involves the execution of a warrant to search for narcotics. The police had every right to order that Carr and the other individuals present move into the garage bay based on the police officers’ concern for their personal safety. The loaded revolver, which Carr dropped into a cardboard box, was not abandoned because of illegal police activity.

The judgment of sentence is affirmed.

WIEAND, J. filed a dissenting opinion.

WIEAND, Judge,

dissenting:

I agree with the majority that it is not a good law which permits employees to carry unlicensed firearms at their “fixed place[s] of business.” I disagree, however, that this is adequate reason to rewrite a criminal statute duly enacted by the legislature. Thus, my dissent.

Albert Carr was tried on various criminal charges in the Municipal Court of Philadelphia but was found guilty only of possessing an unlicensed firearm in violation of 18 Pa. C.S. § 6106(a). After a fine and sentence of probation had been imposed, Carr filed a petition for certiorari in the Court of Common Pleas. His petition was denied. He then filed an appeal to this Court in which he contends, inter alia, that the evidence was insufficient to sustain his conviction.

“When appraising the sufficiency of evidence, we apply a two-step analysis. First, we must regard the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could properly have based its verdict. Next, we inquire whether that evidence, together with all reasonable inferences drawn from it, was sufficient to prove guilt beyond a reasonable doubt.” Commonwealth v. Grabowski, 306 Pa.Super. 483, 486-487, 452 A.2d 827, 829 (1982). See: Commonwealth v. Diaz, 319 Pa.Super. 538, 539, 466 A.2d 674, 675 (1983); Commonwealth v. Carter, 304 Pa.Super. 142, 144, 450 A.2d 142, 143 (1982); Commonwealth v. Allen, 287 Pa.Super. 88, 94, 429 A.2d 1113, 1115 (1981). In making a determination of the sufficiency of the evidence, we consider all the evidence received, whether or not the trial court’s evidentiary rulings thereon were correct. Commonwealth v. Waldman, 484 Pa. 217, 222-223, 398 A.2d 1022, 1025 (1979); Commonwealth v. Gray, 322 Pa.Super. 37, 40, 469 A.2d 169, 170 (1983); Commonwealth v. Fields, 317 Pa.Super. 387, 395, 464 A.2d 375, 379 (1983); Commonwealth v. Robinson, 316 Pa.Super. 152, 155, 462 A.2d 840, 841 (1983).

On April 22, 1981, members of the Philadelphia Police Department obtained and executed a search warrant for controlled substances believed to be stored in and sold from a service station at 2000 North Broad Street in the City of Philadelphia. Although the owner was then known only by description, he was subsequently identified as Mr. Cummings. When police arrived they found a group of approximately eight males standing in front of the bay area. As these men were being led into the service station building so that the search could be conducted without interference, Carr was observed dropping a loaded, .32 caliber revolver into a cardboard box. He conceded at trial that he had been carrying the revolver when the police arrived. He testified, however, that the service station was his place of employment and that he had been working at the time of his arrest. Although the trial court was free to disbelieve appellant’s testimony, the fact is that the Commonwealth’s evidence also established that the service station was Carr’s place of employment. Officer Agapito Osano, while testifying as a Commonwealth witness, said: “During the course of the investigation, it was determined that Mr. Carr worked for Mr. Cummings.”

Possession of a firearm without a license is made an offense by 18 Pa.C.S. § 6106(a), which provides as follows: The key to the decision in this case is the exception which permits a person to carry an unlicensed firearm in his or her “fixed place of business.”

“No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license thereof as provided in this subchapter.” (emphasis added).

We are admonished when interpreting the Crimes Code, to construe the provisions thereof “according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title and the special purposes of the particular provision involved.” 18 Pa.C.S. § 105. The general purposes of the Crimes Code are stated at 18 Pa.C.S. § 104 and include, as relevant to the issue now before the Court, the following:

(4) To give warning of the nature of the conduct declared to constitute an offense____

The legislature, when it incorporated the provisions of Section 6106 of the Uniform Firearms Act into the Crimes Code provided us with no statement of purpose therefor. It would appear from the language used, however, that the legislature intended generally to prohibit the carrying of concealed firearms outside one’s place of abode or fixed place of business without a license to do so. Possession of a firearm in one’s living quarters or fixed place of business was deemed to present no threat of substantial harm to individual or public interest and, therefore, was determined not to be criminal. The term “place of abode,” it seems clear, was intended to include living quarters whether owned or leased and irrespective of the size or number of rooms. What, then, is meant by “fixed place of business”? May a person legally possess an unlicensed firearm in his or her fixed place of business only if he or she has a proprietary interest?

The term “business” is defined by the American College Dictionary as “one’s occupation, profession or trade.” A literal interpretation of “place of business,” therefore, is that space which is set aside or used for the purpose of one’s occupation, profession or trade. Can it be said, nevertheless, that the legislature, in enacting the “fixed place of business” exception, intended to add by necessary implication a requirement that one have a proprietary interest in the fixed place of business? I think not.

In the first place, Section 105 requires that the term “place of business” be construed according to its “fair import.” This, as we have seen, is the place where one engages in his “occupation, profession or trade.” Section 105 of the Crimes Code also directs that the provisions of the Code be construed consistently with a legislative intent “to give fair warning of the nature of the conduct declared to constitute an offense.” 18 Pa.C.S. § 104(4). In order to accommodate this direction, any ambiguity concerning the ambit of a penal provision must be construed in favor of the accused. Commonwealth v. Driscoll, 485 Pa. 99, 107, 401 A.2d 312, 316 (1979) (plurality opinion); Commonwealth v. Danish, 256 Pa.Super. 344, 348, 389 A.2d 1156, 1158 (1978); Commonwealth v. Cluck, 252 Pa.Super. 228, 238, 381 A.2d 472, 477 (1977); Commonwealth v. Cunningham, 248 Pa. Super. 219, 222, 375 A.2d 66, 67 (1977). See also: Busic v. United States, 446 U.S. 398, 406, 100 S.Ct. 1747, 1753, 64 L.Ed.2d 381, 389 (1980); Commonwealth v. Allsup, 481 Pa. 313, 317, 392 A.2d 1309, 1311 (1978). This is necessary to avoid the injustice of convicting a person without clear notice to him that contemplated conduct is unlawful. Commonwealth v. Broughton, 257 Pa.Super. 369, 377, 390 A.2d 1282, 1286 (1978). See also: Commonwealth v. Bellis, 324 Pa.Super. 506, 472 A.2d 194 (1984). It also serves to prevent courts from creating offenses which the legislature did not intend to create. Commonwealth v. Cluck, supra.

When the provisions of 18 Pa.C.S. § 6106(a) are construed strictly and all ambiguity is resolved in favor of appellant, it must necessarily follow that appellant’s possession of an unlicensed firearm at the service station where he was then engaged in his occupation was not a criminal act. It was not within the ambit of the proscription defined by Section 6106(a) of the Crimes Code. The statutory exception is not limited only to situations in which a person owns the premises or has a proprietary interest in the business there conducted.

The majority argues that a literal interpretation of 18 Pa.C.S. § 6106(a) would be inconsistent with 18 Pa.C.S. § 6106(b). It is argued that the later subsection would become surplusage unless we added the requirement of a proprietary interest to the “fixed place of business” exception of 18 Pa.C.S. § 6106(a). Closer examination, however, discloses that the “fixed place of business” exception of § 6106(a) and the provisions of § 6106(b)(6) complement each other and can readily be construed to give effect to both. The “fixed place of business” means exactly what it says: it is not criminal to carry an unlicensed firearm on one’s person at his or her fixed place of business. The provisions of § 6106(b)(6), on the other hand, except from the statutory proscription those employees of common carriers, banks and businesses whose duties require them to protect moneys, valuables and property in the discharge of their duties. This exception is not limited to carrying a firearm at one’s fixed place of business; instead, it encompasses the carrying of a firearm wherever the employee’s duties may require him to go, without geographical limitation.

The majority, in my judgment, places an unwarranted connotation on the word “his” in order to add an “ownership or control” requirement to the statute’s “fixed place of business” exception. The word “his” is a pronoun; in Section 6106(a), the pronoun is used as an alternative reference to the noun, “person.” In short, it refers to a person who would carry a firearm, hence an accused. The statute provides that such a person may carry a firearm on “his person” in “his ... fixed place of business.” This does not translate into a right to carry a firearm in one’s fixed place of business only if one has “ownership or control” over the business. In order to add such a qualification to the statute’s “fixed place of business” exception, the majority has engaged in pure judicial legislation.

The limitation adopted by the majority implies that an employee can have no “fixed place of business.” If this is correct, then the exception is inapplicable to corporate officers and employees unless they also happen to have a proprietary interest in the business. One may also ask under the majority’s interpretation, how shall we apply the “fixed place of business” exception to professional offices? Does it apply only to the partners of a law firm or medical clinic, or does it apply also to associates, secretaries and nurses who work late? How shall we apply the exception, if at all, to government offices and warehouses? More pertinently, does the exception allow the carrying of an unlicensed firearm by the faithful service station employee who works alone at night in relief of the owner? What reasonable difference allows the sole proprietor to carry an unlicensed firearm while at work during the day but does not permit the same protection to an employee who relieves the owner at night.

The majority observes quite properly that the courts of sister jurisdictions are divided in their interpretations of the fixed place of business exception contained in the Uniform Firearms Act. See: Annotation of Cases at 57 A.L.R.3d 938. I find it irrelevant that some courts have determined to add thereto a requirement that a person have a proprietary interest. Such a requirement, quite clearly, does not appear in the Pennsylvania statute; and this Court is importuned to construe the statute according to the fair import of its terms.

If we are to interpret the “fixed place of business” exception according to its fair import and consistently with the Code’s stated purpose of giving fair warning of conduct which is declared criminal, we would do well to interpret the statutory language literally. Only in this manner can we render the statutory proscription unambiguous. Only in this manner can we be certain that we are not judicially condemning as criminal an act not so intended by the legislature.

The legislature has said that it is not criminal for a person to carry a firearm on his person in his living quarters or in the fixed place where he engages in his “occupation, profession or trade.” Because appellant carried an unlicensed firearm only at the service station which constituted his “fixed place of business,” I would hold that he did not violate the proscription contained in 18 Pa.C.S. § 6106(a). I would leave it to the legislature to rewrite a law which both the majority and I deem an unwise exception to the ban on carrying unlicensed firearms.

      . The Municipal Court sustained a demurrer to related charges of criminal conspiracy, possession of a controlled substance, and carrying a firearm on a public street.

      . For a detailed discussion of this issue see 57 A.L.R.3d 938.

      . Article 484 V.A.P.C.; repealed by Acts 1973, 63rd leg., ch. 399 § 3.

      . The court sustained a demurrer to companion charges of criminal conspiracy, possession of a controlled substance, and carrying a firearm on a public street.

        , This is a very broad exception. Whether there are any employees whose duties do not require them to protect the "money, valuables and property/’ of their employers and who they are have not been argued and need not now be decided.


author: POPOVICH, Judge: CIRILLO, Judge,

text:
    483 A.2d 549
    COMMONWEALTH of Pennsylvania v. Sam DONALDSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1984.
    Filed Oct. 12, 1984.
    Petition for Allowance of Appeal Granted May 24, 1985.

      Donald S. Bronstein, Assistant Public Defender, Philadelphia, for appellant.
    Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WICKERSHAM, BROSKY, CIRILLO, BECK, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

On December 16, 1980, appellant was found guilty of burglary, criminal trespass, and criminal conspiracy. Post-verdict motions were denied and appellant was sentenced on each charge to a period of two years probation to be served concurrently. Appellant contends on this direct appeal that his right to a speedy trial under Pennsylvania Rule of Criminal Procedure 1100 was violated. We find merit in appellant’s argument and, accordingly, reverse the judgment of sentence and order appellant discharged.

To respond to appellant’s contention, we must review in detail the procedural history of the case. The complaint was filed on October 19, 1979. The mechanical run date for purposes of Pa.R.Crim.P. 1100, 180 days from the filing of the complaint, was April 16, 1980. Appellant’s preliminary hearing was continued three times through no fault of the appellant. However, on January 18, 1980, and February 11, 1980, appellant arrived at court late, forcing further delay of the preliminary hearing which was finally held on March 5, 1980. Appellant was arraigned on March 19, 1980, at which time a trial date was set for May 14, 1980. On March 28, 1980, the Commonwealth, pursuant to Pa.R.Crim.P. 1100(c), filed its first petition for an extension of time to commence trial. On May 13, 1980, a hearing was held on the extension petition, which was granted and the run date extended to May 16, 1980. On May 14, 1980, a defense witness was unavailable for trial. The defense requested a continuance, and appellant waived his Rule 1100 rights until August 6, 1980. Trial was relisted for July 30, 1980. On that date, the arresting police officer was on vacation and the case was again continued to October 7, 1980. On August 4, 1980, the Commonwealth filed its second petition for an extension of time to commence trial. A hearing was held on this petition on October 6, 1980. The court below granted the petition and extended the Rule 1100 run date to October 8, 1980. At that hearing, a defense motion to dismiss for violation of Rule 1100 was denied. On October 7, 1980, a defense witness failed to appear and the case was continued to December 17, 1980. On October 8, 1980, the Commonwealth filed its third petition for an extension of time. A Rule 1100 hearing was held on December 9 and 10, after which the Commonwealth’s petition to extend was granted and the Rule extended to December 17, 1980. Appellant was tried on December 16, 1980.

Appellant challenges each of the three extensions, arguing that the Commonwealth failed to show due diligence, that delay was unavoidable and that the following trial listings were the earliest possible dates that trial could be listed. In reviewing the first extension, the court below held that even if the Commonwealth failed to establish due diligence, the May 14 trial date was well within the 180 day period. This conclusion was reached by excluding the 46-day delay that resulted from appellant’s tardiness on January 18 and February 11, forcing the preliminary hearing to be continued to March 5. The court below relied on this Court’s recent decision in Commonwealth v. Perry, 296 Pa.Super. 359, 442 A.2d 808 (1982), where the defendant’s tardiness in appearing for trial resulted in a 22-day delay. Pa.R.Crim.P. 1100(d)(3) requires the exclusion of the period of delay resulting from the unavailability of the defendant or his attorney. We agree with the trial court that the 46-day delay in this case should be excluded from the 180 day period. Therefore, we find no error in the lower court’s grant of the first extension.

With regard to the second extension, the Commonwealth was to proceed to trial on May 14, but the defense was unprepared and, therefore, waived Rule 1100 for 84 days, until August 6. At the next listing, on July 30, the Commonwealth was unable to proceed because the arresting officer, an eye-witness to the break-in, was on vacation.

In Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981), we discussed the scope of review and the standard of proof applicable in cases such as the present case:

“ ‘A court may grant the Commonwealth an extension of time for trial if it finds that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth.’ Pa.R.Crim.P. 1100(c).” Commonwealth v. Miller, 270 Pa.Super. 178, 182, 411 A.2d 238, 240 (1979). “The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c).” Commonwealth v. Ehredt, 485 Pa. 191, 193, 401 A.2d 358, 360 (1979). (citations omitted). In reviewing the lower court’s ruling that the Commonwealth has or has not met its burden of proving due diligence, we may consider only the evidence presented at the hearing by the Commonwealth and that evidence presented by the defendant which remains uncontradicted. See Commonwealth v. Ehredt, supra, 485 Pa. at 193, 401 A.2d at 360. “Thus, when witnesses become unavailable toward the end of the Rule 1100 time period — whether through vacation, illness, or other reasons not within the Commonwealth’s control — the Commonwealth is prevented from commencing trial within the requisite period despite its due diligence and an extension of time is warranted.” Commonwealth v. Sinor, 264 Pa.Super. 178, 183 n. 5, 399 A.2d 724, 727-28 n. 5 (1979).

Id., 287 Pa.Superior Ct. at 317, 430 A.2d at 304. At the October 6 hearing on the extension petition, the Commonwealth presented the testimony of a police officer whose duty, as court liaison officer, was to keep records of court appearances by other officers. The liaison officer testified that his records, which were kept in the normal course of business, indicated that the witness was on vacation from July 23 to August 9, 1980. (N.T. Oct. 6, 1980, p. 3).

Appellant argues that the arresting officer’s vacation is not adequate proof of due diligence. Appellant mistakenly relies on Commonwealth v. Delpiano, 290 Pa.Super. 510, 434 A.2d 1260 (1981), where a police officer’s vacation did not justify an extension because there was specific reason to believe that the Commonwealth knew of the vacation before trial was listed for the date in question. In the instant case, there is no evidence as to what date the officer placed his vacation request, nor does appellant argue that the Commonwealth knew of the request before the case was listed for July 30. Accordingly, appellant’s argument must fail in this regard.

However, appellant argues, in the alternative, that, despite the Commonwealth’s due diligence on July 30, the continuance to October 7 was improper because there was insufficient evidence presented at the October 6 extension hearing to prove that October 7 was the earliest date consistent with the court’s business on which the trial could be listed. See Pa.R.Crim.P. 1100(c).

At the October 6 hearing, the only evidence presented on the issue of October 7 being the earliest possible date for trial was the following testimony by the Assistant District Attorney:

MR. GALLAGHER: I call myself as custodian of records, district attorney’s office, and indicate that the file in the matter of Commonwealth versus Donaldson indicates that on July 30, Room 615, the A.D.A. was Johansen, who marked the file, “Continued to 10-7-80. Earliest possible date. Arresting officer Olli on vacation.”
(N.T. Oct. 6, 1980, p. 5).

The above statement evoked this objection by appellant’s trial counsel:

MS[.] PECHKUROW: I object to the hearsay testimony from the district attorney’s reading from his file. I submit it’s not a business record.
I would also submit that the information that he read is inadequate to show due diligence, as far as a finding to obtaining the earliest possible date as to the 10-7 listing.

Id.

Appellant argues that statements read from the district attorney’s trial file, prepared for the sole purpose of litigation, are not adequate proof of a “certification” that trial was scheduled for the earliest possible date. Although uncontested notations in court records are properly permitted as evidence in Rule 1100(c) extension hearings, see Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983), notations in a prosecutor’s file are clearly of a different character and cannot be considered sufficient evidence to certify that a case was relisted for the earliest possible date. The type of evidence required for proving that trial has been scheduled for the earliest possible date consistent with the court’s business was discussed in Commonwealth v. Jackson, 269 Pa.Super. 249, 253, 409 A.2d 873, 875 (1979):

It is therefore settled that Rule 1100 requires evidence in support of a petition to extend. This does not mean that Rule 1100 hearings may not be short and to the point. If a Commonwealth petition pleads facts that the answer admits, no further proof should be necessary. Commonwealth v. Ehredt, supra, 485 Pa. at 196 n. 8, 401 A.2d at 358 n. 8. The technique of judicial notice may also be useful. In Commonwealth v. Coleman, All Pa. 400, 383 A.2d 1268 (1978) (plurality opinion, two justices concurring in result), the Court approved the lower court’s taking judicial notice of the manner in which the court administrator scheduled criminal matters, since in Montgomery County (the same county involved here), calendar control is under the direct supervision and control of the board of judges. In Commonwealth v. Ehredt, supra, the Court also indicated that judicial notice might be acceptable for proving scheduling difficulties. Id., 485 Pa. at 195 n. 7, 401 A.2d at 358 n. 7. See also, In Re Schulz Estate, 392 Pa. 117, 139 A.2d 560 (1958) (judicial notice of record before various courts involved in case); Commonwealth ex rel. Kelley v. Brown, 327 Pa. 136, 193 A. 258 (1937) (judicial notice of facts (number of orders, number and disposition of cases, etc.) disclosed in annual report of Municipal Courts of Philadelphia); Sherman v. Baltimore & Ohio R.R. Co., 122 F.Supp. 492 (W.D.Pa. 1954) (judicial notice of crowded and congested dockets in court’s district as compared to those of a district of another state, and of impending changes that would bring docket current); see generally McCormick on Evidence, § 330, at 765-66 (Cleary ed. 1972).

(Emphasis supplied) (footnotes omitted).

Of course, this excerpt from Jackson is not an exclusive list of the methods of proof available. For example, in Commonwealth v. Wroten, 305 Pa.Super. 340, 451 A.2d 678 (1982), the Commonwealth appeared on June 22 to try the defendant, but the defendant had not yet been “brought down” from the prison. After his request to have the defendant brought down immediately was denied, the assistant district attorney requested the earliest possible court date, which was July 2. As the Rule 1100 run date was June 29, the Commonwealth filed a petition to extend on June 23. At the July 2 extension hearing, the extension was refused because the Commonwealth had done nothing between June 22 and June 29 in order to bring the defendant to trial. We reversed, holding that because the assistant district attorney requested the earliest possible date, the Commonwealth acted with due diligence in filing a petition for an extension before the Rule 1100 period had expired. The only proof offered at the extension hearing was the testimony of the assistant district attorney who stated that he had requested the earliest possible date for a court listing. As this testimony was apparently uncontradicted, we found that the Commonwealth met the preponderance of the evidence standard.

In the instant case, the evidence submitted by the Commonwealth consisted of a note written by another assistant district attorney in his file to the effect that October 7 was the earliest possible date. As the assistant district attorney who allegedly made the note in his trial file did not testify, we would agree that such evidence was not competent. During oral argument of ■ appellant’s post-verdict motions, the trial judge commented that “[I] don’t regard the markings on the file to have any weight or probative value by either the Public Defender or the District Attorney’s Office. It’s really a hearsay bit of evidence.” (N.T. August 5, 1981, p. 7).

Rather than argue that such evidence was sufficient, the Commonwealth contends that appellant did not make a timely objection to the July 30 continuance. The Commonwealth’s argument is based on the holdings in Commonwealth v. Brown, 497 Pa. 7, 438 A.2d 592 (1981), and Commonwealth v. Lee, 297 Pa.Super. 216, 443 A.2d 804 (1982). In Brown, appellee and his counsel sat in open court and listened to the trial judge announce a trial date beyond the last day for trial under Rule 1100. Our Supreme Court held that appellee’s silence misled the court and the Commonwealth as to the suitability of the trial date, and that such silence operated as a waiver of Rule 1100 rights until the trial date which had been announced. In Lee, the trial judge told counsel that trial would probably be listed for the week of June 25, which was beyond the Rule 1100 run date. Counsel thanked the judge and the proceeding ended. We held that no violation of Rule 1100 occurred because counsel’s statements gave the appearance of approval to the court’s scheduling of the trial beyond the time limits of Rule 1100. Id., 297 Pa.Superior Ct. at 232, 443 A.2d at 811, 812.

In the instant case, the Commonwealth asserts that appellant has failed to cite anything in the record suggesting that he objected to the continuance when it was granted on July 30. However, as no transcript of the July 30 proceedings exists in the record, it is impossible for us to determine whether appellant objected when the case was continued or whether appellant or his counsel, by their acquiescence, misled the court and the Commonwealth. Although the Commonwealth does not even allege that appellant or his counsel were present when the continuance was granted, appellant’s counsel admits, in the third extension hearing, on an unrelated argument, to being present in the courtroom on July 30. (N.T. December 9, 1980, p. 7). Nevertheless, missing in this case is the key factor which pursuaded the Brown and Lee courts to decide that the defendants in those cases had waived their Rule 1100 rights. That is, an on-the-record waiver of those rights.

The Commonwealth would have us hold, based on appellant’s failure to prove an on-the-record objection to the continuance, that appellant has waived his right to attack the obvious procedural inadequacies of the October 6 extension hearing. Such a holding would not only be an unwarranted extension of Brown, supra, it would dismiss the Commonwealth’s burden of establishing, on the record, that the waiver is the informed and voluntary decision of the appellant. See Commonwealth v. Myrick, 468 Pa. 155, 159, 360 A.2d 598, 600 (1976). Furthermore, it would be procedurally incorrect to remand this case for an evidentiary hearing to establish whether appellant or his attorney objected to the continuance. Aside from the fact that the Commonwealth did not allege to the court below that appellant had waived his Rule 1100 rights, we cannot place the burden on the appellant to prove that he did not waive his Rule 1100 rights without a prima facie showing of a valid waiver. Id.

In Commonwealth v. Brown, supra, the Supreme Court ruled in favor of the Commonwealth because the record indicated that the court and the Commonwealth were misled. Brown did not authorize remanding in order to make a record that would indicate waiver. When confronted with a situation more similar to the procedural posture of the instant case, where the Rules of Criminal Procedure have been disregarded below, our Supreme Court has refused to remand in order to establish whether the defendant may have effectuated a valid waiver of his rights. See Commonwealth v. Morin, 477 Pa. 80, 86, 383 A.2d 832, 835 (1978); Commonwealth v. Kulp, 476 Pa. 358, 382 A.2d 1209 (1978).

In the case sub judice, the record plainly shows that the Commonwealth failed to meet its burden of proof at the October 6 extension hearing, at which the Commonwealth also failed to raise the waiver issue presented now. Under these circumstances, where the Commonwealth does not even allege that it and the court were misled by appellant or his counsel, and where the record is void of any indication of waiver on appellant’s part, we shall not give the Commonwealth a further opportunity to explain away their noncompliance with Rule 1100.

For the above stated reasons, we reverse and vacate the judgment of sentence. Appellant discharged.

SPAETH, President Judge, concurred in the result.

CIRILLO, J., filed a dissenting opinion.

WICKERSHAM, J., filed a dissenting statement.

CIRILLO, Judge,

dissenting:

I respectfully dissent from the majority’s holding that the appellant had not waived his Rule 1100 rights at the October 6, 1980 extension hearing.

The Supreme Court in Commonwealth v. Brown, 497 Pa. 7, 11, 438 A.2d 592, 594 (1981) specified the parameters of a valid waiver of rule 1100 rights as follows:

In this case, appellee and his counsel sat in open court and listened to the judge announce a trial date beyond the last day for trial under Rule 1100, yet they said nothing. This silence on November 15 constituted a waiver of Rule 1100 until the December 15, trial date. Furthermore, this waiver was informed and voluntary: having already expressly and validly waived his rights under Rule 1100 on September 24, it is beyond question that on November 15 appellee already understood the nature and scope of his rights under Rule 1100, as well as the consequence of waiving those rights. (Emphasis added)

In this case, the appellant and his counsel were present in the courtroom on October 6, 1980. Failure to object to the extension at that time constituted a waiver. This waiver was informed and voluntary. The appellant had already expressly waived his rule 1100 rights until August 6, 1980 when defense counsel had requested a continuance.

The Supreme Court of Pennsylvania in Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983) has enunciated the standard of review of a trial court’s grant of an extension of time for trial pursuant to Pennsylvania Rule of Criminal Procedure 1100. “This determination is within the realm of discretion of the trial court and absent an abuse of discretion, a grant of extension of time will not be overruled on appeal.” As an appellate court we are bound by this decision.

A review of the record in this case indicates no abuse of discretion. Therefore, I would affirm Judgment of Sentence.

WICKERSHAM, Judge, dissenting:

I would affirm the judgment of sentence.

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 3503.

      . 18 Pa.C.S.A. § 903.

      . Current Pa.R.Crim.P. 1100(c) provides:
      ■ (c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
      (2) A copy of such motion shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.
      (3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.
      (4) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court’s business, and the record shall so indicate.
      Although former Rule 1100(c) was in effect at the time this case went to trial, it was interpreted as containing substantially similar requirements to the present Rule. See Commonwealth v. Mayfield, 469 Pa. 214, 222, 364 A.2d 1345, 1349 (1976).

      . See former Pa.R.Crim.P. 1100(d)(1).

      . Excluding the 46 day delay from January 18 to March 5 occasioned by appellant’s lateness, and the 84 days from May 14 to August 6, for which appellant waived Rule 1100, see Rule 1100(d)(2), the Rule 1100 run date was August 25, 1980.

      . Appellant also objected to the trial court’s extension of the Rule 1100 period one extra day, to October 8, 1980. (N.T. Oct. 6, 1980 p. 6). Because October 7 was the date on which trial was scheduled, our discussion of the Rule 1100(c) requirements will focus on that date. It goes without saying that if the evidence was insufficient to prove that October 7 was the earliest possible date, an extension to October 8 would be equally violative of the Rule.

      . Although the Commonwealth filed its petition for an extension on August 4, a hearing on that petition did not take place until the day before the rescheduled trial date, which was almost six weeks after the Rule 1100 period had run. The first extension hearing in this case was held seven weeks after the Commonwealth filed its petition. The third extension hearing was held two months after the petition was filed. It appears to this Court that, aside from the possible prejudice to both parties, such inaction merely gives rise to further delay. We caution the court and the Commonwealth of our disapproval of this practice, and strongly suggest that whenever possible, a hearing should be held before the Rule 1100 period has run. See Commonwealth v. Levitt, 287 Pa.Super. 115, 119 n. 3, 429 A.2d 1126, 1128 n. 3 (1981); Commonwealth v. Metzger, 249 Pa.Super. 107, 110 n. 2, 375 A.2d 781, 783 n. 2 (1977); Commonwealth v. Ray, 240 Pa.Super. 33, 360 A.2d 925 (1976).

      . Because of our disposition of this appeal, we need not comment on the third extension hearing.


author: SPAETH, President Judge:

text:
    483 A.2d 556
    SODA RENTAL SERVICE, INC. v. Nicola FORD and Doris Ford, his wife, and The Palace, Inc., and Richard Simpson and Sharon Simpson, Appellants.
    Superior Court of Pennsylvania.
    Argued March 20, 1984.
    Filed Oct. 19, 1984.
    Petition for Allowance of Appeal Denied March 21, 1985.

      Clarence D. Bell, Jr., Media, for appellants.
    Arthur W. Lefco, Philadelphia, for appellee.
    Before SPAETH, President Judge, and BECK and TAMI-LIA, JJ.
   SPAETH, President Judge:

This is an appeal from a final decree in equity, declaring a conveyance of real estate and a satisfaction of a mortgage fraudulent under section 4 of the Uniform Fraudulent Conveyance Act, 39 P.S. § 354, and granting ancillary relief. We affirm.

The case was heard by the trial court in February and April 1981, and a decree nisi was entered on November 11, 1981. Exceptions were dismissed, and on August 30, 1982, a final decree was entered. The facts as found by the trial court are as follows.

Soda Rental Service, Inc., the plaintiff below and appellee here, is a corporation engaged in the business of leasing soda dispensing equipment. The defendants below and appellants here are The Palace, Inc., a corporation with its former place of business at 1436 Chester Pike, Crum Lynne, Pennsylvania; Nicola Ford, and his wife, Doris Ford; Sharon Simpson, the Fords’ daughter, and Richard Simpson, her husband.

On or about January 17, 1974, Soda Rental and Palace entered into a written lease for the installation and rental of soda dispensing equipment at Palace’s place of business at 1436 Chester Pike. Under the lease, Palace was obligated to return the equipment or its value. On October 13, 1974, a fire destroyed the business premises. Soda Rental submitted several bills to Palace, in care of Nicola Ford, for the value of its equipment destroyed in the fire. The bills were not paid, and on May 22, 1975, Soda Rental, acting under the lease, entered judgment by confession against Palace in the amount of $6,930.96.

Meanwhile, the two conveyances here at issue had occurred. On or about March 14, 1975, Palace had received $200,000 in insurance proceeds on account of the fire. The proceeds were turned over to Aetna Federal Savings & Loan Association, the mortgage holder on the property at 1436 Chester Pike. Aetna made disbursements of the proceeds, including paying a mortgage it held on the property at 66 South Rolling Road, which was owned by the Fords and used as their personal residence. Palace received no consideration for this payment. In addition, on or about April 3, 1975, Palace conveyed the property at 1436 Chester Pike to the Fords and the Simpsons. The deed recited consideration of $20,000, but no funds were exchanged. Richard Simpson had performed services for Palace prior to the fire, for which he expected to receive an ownership interest in Palace at some time in the future.

On the basis of these findings, the trial court concluded that the satisfaction of the mortgage on 66 South Rolling Road and the conveyance of the property at 1436 Chester Pike were fraudulent conveyances under section 4 of the Uniform Fraudulent Conveyance Act, 39 P.S. § 354, which provides:

Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent, is fraudulent as to creditors, without regard to his actual intent, if the conveyance is made or the obligation is incurred without a fair consideration.

The trial court reasoned that Soda Rental had proved that the conveyances were made, and that when they were made, it was a creditor of Palace; that with this proof, the burden shifted to Palace, the Fords and the Simpsons to prove either that the conveyances were made for fair consideration or that Palace was not then insolvent or rendered insolvent by the conveyances, see First National Bank of Marietta v. Hoffines, 429 Pa. 109, 239 A.2d 458 (1968); Patterson v. Hopkins, 247 Pa.Super. 163, 371 A.2d 1378 (1977); and that this burden had not been met.

The trial court’s decree declared Palace’s conveyance of the property at 1436 Chester Pike null and void, and directed the Fords and Simpsons to reconvey the property to Palace; the court imposed an equitable lien in favor of Soda Rental in the amount of $6,930.96 on the property at 66 South Rolling Road; and finally, the court enjoined Palace, the Fords and the Simpsons from encumbering or conveying either of the properties.

-1-

As appellants, Palace, the Fords and the Simpsons argue that the trial court erred in finding that Palace was insolvent at the time of the conveyances. The statement of this argument is misleading, however, for as just indicated, the trial court did not find that Palace was insolvent, but rather it concluded that appellants had not met their burden of proving that Palace was not insolvent. See Trial Court Conclusion of Law 7; Trial Court Opinion at 7-8.

We need not decide whether the trial court was correct in its allocation of the burden of proof, for appellants do not challenge the allocation. Instead, they argue that the evidence proved that in fact Palace was not insolvent. In support of this argument, appellants say that Palace received $200,000 in insurance proceeds and that at the time of the conveyances Palace had a valid liquor license. Appellants further say that after disbursement of the insurance proceeds to Palace’s creditors, over $14,000 in proceeds remained available to Palace, in addition to the value of the liquor license. However, the record reveals that the remaining proceeds were actually closer to $4,000. See supra n. 1. Moreover, appellants introduced no evidence to show either the value of the liquor license or that Palace had no creditors other than Soda Rental and those creditors that were paid from the insurance proceeds. The trial court therefore did not err in concluding that appellants failed to meet their burden on this issue.

-2-

Appellants argue that the trial court erred in finding that Palace did not receive fair consideration for the conveyances. Section 3(a) of the Uniform Fraudulent Conveyance Act, 39 P.S. § 353(a), provides that fair consideration is given for property when “in exchange for such property ..., as a fair equivalent therefor and in good faith, property is conveyed or.an antecedent debt is satisfied.” Appellants’ argument is essentially that the conveyances were made to satisfy antecedent debts.

With respect to the satisfaction of the mortgage on 66 South Rolling Road, appellants argue that although the property was owned by the Fords, the proceeds of the loan were used to benefit Palace. However, there was no evidence of this. The testimony showed that the mortgage was taken out by the Fords and there was no indication of how the Fords used the money. See N.T. April 15, 1981, 86-87. The only witness to testify on this subject was Elizabeth Milacsky, and she was not able to say for what purpose the money secured by the mortgage was borrowed. See id. at 94-102. Moreover, there was no evidence that any of the proceeds allegedly used to benefit Palace were advanced as a loan, thereby creating a debt to the Fords rather than an equity investment in the business. Appellants therefore failed to show that the mortgage was paid in satisfaction of an antecedent debt to the Fords.

With respect to the transfer of the property at 1436 Chester Pike, appellants argue that before the fire Richard Simpson had performed services for Palace that had a value in excess of $20,000. See N.T. April 28, 1981, 22-59. Nevertheless, the trial court found, and the finding is supported by the record, that Palace did not incur a debt to Simpson in exchange for his services, but, rather, that Simpson obtained, or at least expected to obtain, an equity interest in the business. See id. at 24 (there was no agreement, but Ford told Simpson that he would take care of him later), 82-84, 92 (Simpson was working to acquire “an interest in the business”). Cf. Jarvis v. Bell, 296 Pa. 568, 146 A. 153 (1929) (evidence was sufficient to establish fair consideration for father’s conveyance of farm to son where there was evidence of express agreement that father would furnish capital, son would manage business and they would share net profits; evidence that son engaged in business extensively for nine years; evidence that father retained most of net profits throughout years; and evidence of express agreement that father would convey farm to son in satisfaction of his share of profits). Appellants further argue that the conveyance was made to repay the risk taken by the Fords when they created a mortgage on their personal residence for the benefit of Palace. As stated above, however, there was no evidence that the proceeds of the mortgage loan went to benefit Palace, or if they did, that they were advanced as a loan rather than as an equity investment. Appellants therefore failed to show that the conveyance was made in satisfaction of an antecedent debt to the Fords and the Simpsons.

-3-

Appellants argue that there was inadequate proof of the amount of Palace’s debt to Soda Rental at the time of the conveyances. There is no question, however, of the existence of a debt to Soda Rental at the time of the conveyances. The amount of the debt was relevant only to a determination of whether Palace was then insolvent, and as stated above, appellants bore the burden of proof on this issue. This argument is therefore without merit.

-4-

Appellants argue that Aetna, as the mortgagee of the property at 1436 Chester Pike, and not Palace, controlled the disbursement of the insurance proceeds, and that it required the satisfaction of the mortgage on 66 South Rolling Road from the proceeds of the insurance settlement. This argument is contrary to the record. Elizabeth Milacsky, the vice president of Aetna, testified that Aetna’s policy was to take its share of the proceeds from the insurance settlement in order to satisfy the mortgage on the damaged property and to pay the remaining proceeds to the owner of the property. N.T. April 15, 1981, 70. She further testified that Aetna would have released $48,000 to the Fords if they had so requested, rather than use the $48,000 to satisfy the mortgage on 66 South Rolling Road. Id. at 81-82, 86-88. This testimony was supported by Plaintiff’s Exhibit 7, which was a letter from Nicola Ford, written in his capacity as secretary/treasurer of Palace, to William Ciarrocchi, former president of Aetna, directing, among other things, that disbursements be made from the insurance proceeds to satisfy the loan secured by the mortgage on 66 South Rolling Road. Id. at 57-65.

-5-

Finally, appellants argue that an equitable lien cannot be enforced against the property at 66 South Rolling Road because that property is owned by the Fords as tenants by the entireties. Appellants argue that there was no showing that Doris Ford received any benefit from the loan secured by the property at 66 South Rolling Road or that she played a part in causing Palace to satisfy the mortgage. From this they argue that because Nicola Ford alone benefitted from the loan and alone caused Palace to satisfy the mortgage the obligation to satisfy Soda Rental’s claim is also his alone. This argument, however, overlooks the fact that section 4 of the Uniform Fraudulent Conveyance Act operates without regard to the parties’ intent. See First National Bank of Marietta v. Hoffines, supra. Regardless of Doris Ford’s intent, the mortgage on property that she owned was satisfied by Palace at a time when Palace was indebted to Soda Rental, and appellants have failed to show that Palace was not insolvent or rendered insolvent at that time or that it received fair consideration. This is sufficient to establish a fraudulent conveyance to Nicola and Doris Ford under section 4.

Order of the trial court affirmed.

      . The record reveals that the payment was actually $190,000. N.T. April 15, 1981, 70. This discrepancy, however, has not been raised as error by appellants.

      . This allocation of the burden of proof has been applied most often in cases where the transfer at issue was made between related parties. The transfers here at issue were arguably made between related parties. Moreover, this allocation of the burden of proof has never expressly been restricted only to cases involving transfers between related parties. See United States v. Gleneagles Investment Co., Inc., 565 F.Supp. 556 (M.D.Pa.1983).

      . Appellants also argue that “while speculative, it could be that the cost to demolish and remove whatever remainded [s£c ] of the building was in excess of the value of the underlying land." Appellants' Brief at 20. This argument is indeed speculative, and is not supported by any evidence.

      . The significance of this argument is not entirely clear. Appellants’ argument is apparently that Palace did not convey any of its property.


author: WICKERSHAM, Judge:

text:
    483 A.2d 561
    COMMONWEALTH of Pennsylvania v. Barbara J. PERRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 6, 1984.
    Filed Oct. 19, 1984.
    Petition for Allowance of Appeal Denied April 10, 1985.

      J. Wesley Oler, Jr., Carlisle, for appellant.
    John M. Eakin, District Attorney, Carlisle, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   OPINION

WICKERSHAM, Judge:

Appellant Barbara J. Perry and her husband, Craig, were arrested and charged with robbery and conspiracy on July 30, 1981. On December 10, 1981, appellant was found guilty by a jury on one count each of robbery and conspiracy. On December 14, 1981, her husband also was found guilty on both counts. Appellant filed motions for a new trial and in arrest of judgment, which were subsequently denied in an opinion and order of the lower court en banc dated February 17, 1982. On May 4, 1982, appellant was sentenced to a term of imprisonment of not less than two and one-half (2V2) nor more than eight (8) years. On May 14, 1982, after a hearing, appellant’s motion for modification of sentence was dismissed.

On May 17, 1982, the Office of Public Defender of Cumberland County was appointed by the lower court to represent the appellant as a result of her allegations of ineffectiveness of trial counsel. A motion for reconsideration of appellant’s sentence was granted by President Judge Shughart on June 1, 1982. A hearing was held on certain allegations of ineffectiveness on June 16, 1982. Thereafter, by order dated July 8, 1982 and amended July 15, 1982, President Judge Shughart reaffirmed the sentence as originally imposed and dismissed the ineffectiveness claims. This appeal timely followed.

The facts pertinent to this appeal may be summarized as follows. On July 30, 1981, at approximately 10:00 p.m., a black male approached the attendant at the Cam II Service Center on Route 11, Hampden Township, Cumberland County. He pointed a gun at the attendant and demanded money. After handing the robber $137.00 in bills, the attendant was told to lie down along the side of the service station. The robber then ran on foot to the adjoining parking lot and got into the passenger side of a station wagon. The vehicle then proceeded onto Route 11 in the direction of Harrisburg.

The attendant immediately phoned the police and supplied them with a description of a tall black male wearing a blue fishing hat and carrying a silver-barrelled pistol. He indicated that the suspect was riding in the passenger side of a Plymouth or Dodge station wagon, copper or tan in color, which was headed north on Route 11. This information was broadcast over the county police network and several patrol officers immediately proceeded to cover the various available escape routes.

Within minutes of County Control’s radio bulletin, Patrolman Phelps of the Lemoyne Police Department observed the suspect vehicle travelling northbound on Interstate 83 (Route 11 merges into Interstate 83). Officer Phelps followed and eventually stopped the vehicle in Swatara Township, Dauphin County. Appellant, who was driving the car, produced a driver’s license indicating a residence in Coatesville. When the officer questioned her as to her reason for being in the area, she appeared nervous and gave a vague answer about visiting friends. At that time appellant and her husband were placed in the patrol car and Officer Phelps returned to the Perry’s car and looked for weapons. He reached under the seat and pulled out a blue fishing hat and a silver-barrelled revolver.

Several minutes later, Patrolman Rich of the Hampden Township Police arrived with the victim. The victim identified the vehicle, the hat, and the pistol, but was unable to positively identify Mr. Perry, although he did indicate to the officer that Mr. Perry looked like the perpetrator of the robbery. At that time, Officer Rich placed both Perrys under arrest. A pat-down search was conducted by a female police intern with the Swatara Township Police and $137.00 was found in the crotch area of appellant. Appellant’s husband later gave a statement admitting to the robbery.

In her first issue on appeal, appellant argues that Officer Phelps had no probable cause to arrest her and that, therefore, the information must be quashed or the evidence obtained pursuant to the arrest must be suppressed. We disagree.

The test for determining the existence of probable cause is well settled.

In determining the presence of probable cause, the crucial test is whether there were facts available at the time of the initial apprehension which would justify a man of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator____ In considering probable cause, we deal not with certainties, ... but rather with a common sense determination of reasonableness.

Commonwealth v. Sabb, 269 Pa.Super. 206, 212, 409 A.2d 437, 440 (1979) (citations omitted).

The existence of probable cause can be determined only upon an examination of the facts of each individual case. Instantly, we agree with the lower court that the facts support a finding of probable cause.

We are satisfied that the facts and circumstances apparent to [Officer] Phelps at the time of the arrest would justify a reasonably prudent person in the belief that [appellant] was involved in the robbery which had just been committed at the CAM 2 station. He saw a vehicle which matched perfectly the description of the getaway car. He knew that the perpetrator of the crime was a black male, and he observed a black male seated on the passenger side of the station wagon. Because he was in radio contact, Phelps also knew that none of the other police officers involved in sealing off the area had spotted a vehicle matching the description of the robber’s getaway car. Moreover, from the time of the initial broadcast reporting the robbery until the suspect vehicle was observed by Phelps, only seven minutes had elapsed, and Phelps knew that this period of time was consistent with the amount of time it would take for one to drive from the CAM 2 station to the area where he was positioned. These facts and circumstances themselves constitute probable cause to justify [appellant’s] arrest, see Commonwealth v. Wilder, 461 Pa. 597, 337 A.2d 564 (1975) (plurality decision) (probable cause to arrest occupants of vehicle existed where their car matched description of car used in connection with a shooting and arrest is made within fifteen minutes of the shooting), but they are not all that Phelps had to go on. It must be recalled that before he made the arrest, Phelps spoke with [appellant] and he was given a vague response to his inquiry about why she was in the area. We conclude that Phelps had probable cause to arrest [appellant] and that he acted properly under the circumstances.

Lower ct. op. at 6-7.

In Commonwealth v. Urbina, 290 Pa.Super. 117, 434 A.2d 157 (1981), the defendant was arrested for committing an armed robbery at a Weis Market. The operator of a service station located across the street from the Weis store observed an automobile, not from the neighborhood, leave the area right after the robbery, at a speed fast enough to attract attention. The service station operator followed the automobile to a parking lot, and, only a few minutes after the robbery, he took a police officer to the lot. The officer then arrested the defendant who was seated at the driver’s side of the automobile and who fit the general description of the robber broadcast over the police radio. This court held that the officer had sufficient information to support a reasonable belief that defendant had committed a crime and to arrest him without a warrant.

In Urbina, the basis for the service station operator’s belief that the driver of the car had perpetrated the robbery was the speed at which the car left the area and the fact that it was “not from the neighborhood.” It was on this information that the officer accompanied the operator to the parking lot. Instantly, the robbery victim gave a description of the getaway car and of one of the occupants. He also informed the police of the direction in which the car was headed. Officer Phelps spotted a car matching the description in the radio broadcast headed in a direction consistent with the path of the getaway car. This observation was made just minutes after the robbery. He noted that there was a black male passenger in the front seat of the car. When he stopped the car, Officer Phelps observed that both passengers appeared nervous and that appellant responded in a vague manner when questioned as to her reasons for being in the area. We believe that the officer had sufficient facts to arrest appellant.

Appellant relies heavily on Commonwealth v. Nastari 232 Pa.Super. 405, 335 A.2d 468 (1975). In Nastari, two white males robbed a bowling alley and fled in a light colored Volkswagen. Ten minutes after the crime, which occurred at about 2:00 a.m., descriptions of the suspects, the getaway car, and the direction of flight were broadcast over the police radio. The police stopped a car meeting the description and noticed a green bank bag and a large screwdriver in the automobile. They then searched the vehicle, found two pistols and the money taken in the robbery, and arrested the occupants. The issue before the court was whether the initial stop of the vehicle violated the fourth amendment. This court held that it did not because the facts justified an investigatory stop and that the articles in the officers’ plain view subsequent to the stop gave them probable cause to arrest.

During the course of its opinion, the Nastari court stated that the police did not have probable cause to arrest at the moment of the stop. Appellant argues that the same is true in the instant case. We disagree. Officer Phelps had basically the same information as did the officers in Nastari. He also knew, however, that the other major avenues of escape were being watched by other officers and that none of them had seen a vehicle matching a description of the getaway car. Also, subsequent to the stop, both occupants of the vehicle appeared nervous and appellant responded vaguely to the officer’s question. We believe that the facts available to Officer Phelps at the time of arrest were sufficient to justify a man of reasonable caution to believe that a crime had been committed and that appellant was involved in the commission of the crime. The arrest and search were supported by probable cause and therefore, the court properly refused to suppress the evidence or quash the information.

Appellant’s next issue deals with the weight and sufficiency of the evidence:

Did the lower court err in concluding that evidence respecting appellant’s operation of a car following a robbery was sufficient to sustain verdicts of guilty of robbery and conspiracy and that the verdicts were not against the weight of the evidence?

Brief for Appellant at 4.

In testing the sufficiency of the evidence, we accept as true all evidence upon which the finder of fact could properly base the verdict, giving the Commonwealth the benefit of all reasonable inferences from the evidence, ... and then ask whether, so viewed, the evidence was sufficient to prove guilt beyond a reasonable doubt, ____ Although a guilty verdict may not be based on “suspicion or surmise,” ... the Commonwealth may rely on circumstantial evidence to prove its case.

Commonwealth v. Gordon, 329 Pa.Super. 42, 52, 477 A.2d 1342, 1347 (1984) (citations omitted).

Instantly, appellant was charged with robbery as an accomplice. “Accomplice” is defined in 18 Pa.C.S. § 306:

(c) Accomplice defined. — A person is an accomplice of another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, he:
(ii) aids or agrees or attempts to aid such other person in planning or committing it.

In the case at bar, the evidence and the inferences properly arising therefrom are sufficient to support the conclusion that appellant was the driver of the getaway car. It is also clear that she hid the fruits of the crime on her person. Thus, the evidence was sufficient to prove that appellant aided in the commission of the robbery. Commonwealth v. Ross, 248 Pa.Super. 312, 375 A.2d 113 (1977); Commonwealth v. Esposito, 236 Pa.Super. 127, 344 A.2d 655 (1975).

Appellant was also charged with criminal conspiracy as a result of this incident. She argues that the evidence does not establish the “shared intent” necessary to find her guilty of conspiracy. The existence of a “shared intent” or a “common agreement” may be inferred from the evidence of the circumstances surrounding the allegedly conspiratorial activities, and from the relationship between and the conduct of the parties. Commonwealth v. Gordon, supra. While it is true that there was no direct evidence of an unlawful agreement between appellant and her husband, such an agreement can readily be inferred from appellant’s conduct. She was the driver of the getaway car and the money taken in the robbery was found on her person. Commonwealth v. Esposito, supra. Thus, the evidence was sufficient to sustain the conspiracy conviction.

Appellant also contends that the verdicts were against the weight of the evidence.

Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion____ The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984) (citations omitted).

Instantly, after a careful review of the record, we agree with the lower court that the verdicts were not against the weight of the evidence. We find no abuse of discretion.

Appellant states the third and final issue as follows: Did the lower court err in concluding that appellant’s trial counsel was effective with respect to advice on rights against self-incrimination and with respect to securing of a jury unprejudiced against blacks?

Brief for Appellant at 4.

On June 16, 1982, a full evidentiary hearing was held as to appellant’s claims of ineffectiveness of counsel. The lower court then issued a thorough opinion discussing these ineffectiveness claims. After a review of the entire record, with special attention paid to the transcript from the June 16 hearing, we find that Judge Shughart’s opinion, filed July 8, 1982, properly disposes of the ineffectiveness allegations raised in this appeal. We find no need to discuss them further.

Judgment of sentence affirmed.

      . Appellant states the issue as follows:
      Did the lower court err in refusing to suppress evidence or quash the information based upon an illegal arrest and search without probable cause?
      Brief for Appellant at 4.

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1; as amended Act of June 24, 1976, P.L. 425, No. 102, § 1; 18 Pa.C.S. § 3701(a)(1).

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1.

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1; as amended Act of April 28, 1978, P.L. 202, No. 53, § 7(2); 18 Pa.C.S. § 903(a)(1).