author: JOHNSON, Judge: CIRILLO, Judge,

text:
    476 A.2d 458
    COMMONWEALTH of Pennsylvania v. Christopher BALCH, Appellant. COMMONWEALTH of Pennsylvania v. Gary Lee ALGEO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 15, 1983.
    Filed April 27, 1984.
    Reargument Denied June 25, 1984.

      Douglas M. Johnson, Public Defender, Norristown, for appellant (No. 1219).
    Gerald Thomas Gervasi, Merion, for appellant (No. 1484). Ronald T. Williamson, Assistant District Attorney, Nor-ristown, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

Appellants Christopher J. Balch and Gary Lee Algeo along with Stephen J. Rotondo were arrested April 14, 1981 and charged with burglary (18 Pa.C.S. § 3502), theft of movable property (18 Pa.C.S. § 3921), criminal conspiracy (18 Pa.C.S. § 903) and receiving stolen property (18 Pa.C.S. § 3925). The facts in this case were summarized by the trial court in the following manner:

“On April 14, 1981, a burglary occurred at the Rosen residence at 1139 Norsham Road, Gladwynne, Lower Mer-ion Township, Montgomery County. Taken were a pillowcase from one of the bedrooms and silverware. The Rosens were away at the time, visiting friends in Michigan. Prior to their departure, they had made arrangements with Billy Crockett, a young neighbor lad, to check their premises and take care of their pet while they were away. At about 7:30 p.m., on the evening of the burglary, Billy’s father, William G. Crockett, testified that a young man who identified himself as “Tony DiNardo”, later positively identified by Mr. Crockett as the defendant Algeo, knocked on the front door of his home and asked to use the telephone to call a tow truck. Upon accompanying this young man outside, Mr. Crockett noticed a car mired in the mud off the driveway of the Rosens’ residence. He testified that there were two other young men at the car and while he could not identify them facially, he described the clothing each was wearing. One of them was wearing a short-sleeved brown shirt and brown pants. This matched the clothing worn by the defendant Balch later that evening at the time of the defendant’s arrest at approximately 10 p.m. When arrested, the defendants were in the same maroon-over-white Chevelle which had been towed from the Ro-sen driveway and lawn earlier. The search of the vehicle netted the stolen pillow case and silverware.
As we noted, at approximately 10 p.m., Narberth Patrolman Thomas Trolley was patrolling on Montgomery Avenue in Narberth. As he approached the Great American Pizza Parlor and Arcade, he noticed the defendants Balch and Algeo and another young man, a juvenile, Billy Carlin, walk out and get into the maroon-over-white Chevelle. He knew all of them to be under 21. He saw Algeo carrying a bottle of beer and Billy Carlin carrying a milkshake type container which he suspected contained beer. Trolley confronted the three as they sat in the car. Billy Carlin and the defendant Balch were in the back seat and Algeo was seated in the front seat on the passenger side. [Suppression Hearing. N.T. 22 ], Officer Trolley asked them for the beer and at first they denied having any. He then asked them to exit the car which they did and at the time the bottle of beer and the milkshake carton which contained beer were turned over to him. Officer Trolley then entered the vehicle to search for more beer. Upon lifting a green Army fatigue jacket on the front seat, he noticed the pillowcase containing the silverware.[] He inquired where the silverware had come from and received no response. At this point, Steven J. Rotondo emerged from the Pizza Parlor and identified himself as the owner of the car. When asked about the silverware, Rotondo said that his mother had given it to him to pawn. Officer Trolley then reported all this information to his patrol supervisor and was instructed to hold the individuals as burglary suspects. The Lower Merion Police then brought Mr. Crockett to the scene of the arrest and he positively identified the defendant Algeo. He was also able to identify the short-sleeved brown shirt and brown pants worn by the defendant Balch.” (Opinion, June 7, 1982, at 2-4.)

Motions to suppress the pillowcase and silverware seized by the police from Mr. Rotondo’s car were presented to the trial court on September 29, 1981 on behalf of the Appellants and also on behalf of Stephen J. Rotondo. On September 30, 1981, following a suppression hearing, the trial court found that the Appellants were mere passengers in Roton-do’s car and thus did not have standing to contest the search.

Since Mr. Rotondo owned the car, the court below found that he had standing and further, that his Fourth Amendment rights were violated by Officer Trolley’s warrantless entry into the car. The pillowcase and silverware were suppressed by the trial court in Rotondo’s case, but motions to suppress filed on behalf of the Appellants were denied.

On September 30, 1981 a non-jury trial for the Appellants was held following the trial court’s ruling on the suppression hearing. At the conclusion of the trial, the Appellants were convicted of burglary and criminal conspiracy. They were sentenced on April 19, 1982. Appellant Balch received a sentence of imprisonment for a period of time of not less than six months nor more than 23 months on the burglary conviction and five years probation on the conspiracy conviction. Appellant Algeo received concurrent sentences of five years probation on each count.

Both Appellants argue on appeal that they have standing to challenge the warrantless search and that the search itself violated their rights under the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Appellant Balch also argues that his identification by William Crockett, a Commonwealth witness, was impermissibly suggestive. Appellant Balch’s identification argument must fail, however, because we agree with the trial court that no identification was made by Crockett as to Balch. As the trial court indicated “Mr. Crockett’s testimony respecting the clothing was simply an additional piece of circumstantial evidence which served to link Balch with the scene of the crime.” (Opinion, 6/7/82, at 8).

Additionally Appellant Balch contends that there is insufficient evidence to support a finding of guilt beyond a reasonable doubt. The sufficiency argument of Appellant Balch is set forth in his brief at 15 following the identification of issues V, VI, and VII as:

“V. The verdict was contrary to the evidence
VI. The verdict was against the law
VII. The verdict was contrary to the weight of the evidence”

No argument is contained in the brief in support of the aforementioned identified issues and, therefore, these issues are deemed waived. Trustees of First Presbyterian Church of Pittsburgh v. Oliver-Tyrone Corp., 248 Pa.Super. 470, 472 n. 1, 375 A.2d 193, 194 n. 1 (1977).

This court recently discussed the test for appraising the sufficiency of the evidence in Commonwealth v. Frank, 322 Pa.Super. 6, 468 A.2d 1131 (1983).

The test to be applied by our Court in appraising the sufficiency of the evidence is a two step inquiry. First, we must regard all the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could have based the verdict and then we must ask whether that evidence, along with all reasonable inferences to be drawn therefrom, was sufficient to prove guilt beyond a reasonable doubt,
(citations omitted).

Id., 322 Pa.Superior Ct. at 10, 468 A.2d at 1133.

In applying this test to the instant case we must regard all the evidence. We cannot, as Appellant Balch suggests, diminish the evidence by excising from our consideration, the evidence of record which Appellant asserts should be suppressed. Careful consideration of all the evidence in the light most favorable to the Commonwealth compels us to conclude that Appellant’s sufficiency argument is without merit.

In the very recent supreme court decision of Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983) Justice (now Chief Justice) Nix, held that when a police search is challenged under Article I, Section 8 of the Pennsylvania Constitution, “a person charged with a possessory offense must be accorded ‘automatic standing.’” Id., 504 Pa. at 48, 470 A.2d 457.

Chief Justice Nix’s opinion presents a comprehensive review of the development of the concept of standing under the Fourth Amendment as well as under the Pennsylvania Constitution. The opinion cites the decision of Jones v. U.S., 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) as representing “the high-water mark of access in the context of capacity to challenge an asserted Fourth Amendment violation.” Sell, supra, at 11. Under Jones defendants enjoyed “automatic standing” if charged with possessory offenses.

Three U.S. Supreme Court decisions authored by Justice Rehnquist subsequent to the Jones decision have considerably reduced the protection afforded to defendants under the Fourth Amendment. The Sell decision summarizes the current position of the U.S. Supreme Court in the following way:

“Thus after Rakas, Salvucci, and Rawlings the ability to prove a “legitimate expectation of privacy” by the “totality of the circumstances” is the sole determinant of the scope of protection afforded under the Fourth Amendment to the United States Constitution. The United States Supreme Court has chosen to limit the availability of relief by significantly narrowing the substantive scope of the protection provided by the Fourth Amendment.”

Id., 504 Pa. at 62, 470 A.2d 457.

The court’s discussion in Sell of Article I, Section 8 of the Pennsylvania Constitution emphasized that individual states have the power to provide greater protection to criminal defendants than is afforded to them under the Fourth Amendment. One of the cases cited for providing this extra protection to criminal defendants was Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980). In DeJohn the Pennsylvania Supreme court refused to adopt the holding of the United States Supreme Court in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). DeJohn held that an individual had standing to challenge the admissibility of his own bank records which had been seized by the police.

The Pennsylvania Supreme Court in Commonwealth v. Knowles, 459 Pa. 70, 327 A.2d 19 (1974) and Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265 (1976) adopted the Jones rationale on the standing question. Subsequent decisions by the Pennsylvania Supreme Court have not disturbed these holdings. But cf. Commonwealth v. Layman, 290 Pa.Super. 384, 434 A.2d 735 (1981). (In Layman, this court found that the Treftz decision was no longer controlling in light of the U.S. Supreme Court decisions in Rawlings and Rakas.) Since the Appellants in the instant case were charged with possessory offenses (i.e. theft of movable property and receiving stolen property), we hold that under Sell they enjoy automatic standing to challenge Officer Trolley’s search.

Having determined that the Appellants are entitled to standing to maintain a motion to suppress, we reverse the trial court’s April 19, 1982 Judgment of Sentence and remand for consideration of the merits of the Appellants’ suppression motion. If the trial court concludes that the evidence should not be suppressed, Appellants should be granted a new trial. If the trial court concludes that the evidence should not be suppressed, it should reinstate the judgment of sentence.

Jurisdiction is relinquished.

CIRILLO, J., files a concurring statement.

CIRILLO, Judge,

concurring:

I join in the majority opinion except insofar as it addresses the sufficiency of the evidence in appellant Balch’s case. This issue was not raised in post-trial motions, and therefore should be considered waived for purposes of appellate review. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

      . Officer Trolley testified "that after he picked up the Army fatigue jacket, silverware was visible inside the pillowcase.” (N.T., September 29, 1981, at 10).

      . Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); U.S. v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) and Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    476 A.2d 462
    Stephen C. ZIVITZ and Jean C. Zivitz, H/W v. CENTENNIAL ROAD PROPERTIES, INC., Milton Osterneck, Anthony Bonanni and De Caro Paving Co. APPEAL OF CENTENNIAL ROAD PROPERTIES INC., Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 4, 1984.
    Filed May 18, 1984.

      Benjamin E. Zuckerman, Norristown, for appellant.
    John A. Lord, Philadelphia, for Zivitz, appellees.
    Herbert E. Squires, Philadelphia, for De Caro, appellee.
    Before CAVANAUGH, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

The sole issue presented in this appeal is whether the lower court properly struck appellant’s counterclaim for failure to meet the requirements of Pa.R.C.P. 1031(a) where the counterclaim arose from the allegedly tortious manner in which appellees instituted an assumpsit action against appellant for breach of a construction contract.

Appellees, the plaintiffs below, filed a complaint in assumpsit in the Court of Common Pleas of Montgomery County against, among others, appellant, Centennial Road Properties, Inc., alleging breach of contract in the construction of their house. Therein, appellees alleged that appellant failed to complete the work in a workmanlike manner, failed to adhere to the expressed terms of the contract, and breached various contractual warranties. Appellant filed an answer to the complaint and by way of counterclaim alleged tortious conduct by appellees arising out of the manner of filing the assumpsit action. Appellant, without specificity, alleged that appellees instituted suit against it in an arbitrary and vexatious manner, without valid excuse and in bad faith. In addition, they alleged that the aver-ments of appellee were slanderous and libelous to their business reputation. Appellee filed preliminary objections to the counterclaim in the nature of a motion to strike which were sustained by the lower court in an Order dated February 18, 1982. This appeal followed.

In the interests of judicial economy and prompt judicial resolution of claims, Pa.R.C.P. 1031(a) provides that a counterclaim to an action in assumpsit must meet the following criteria:

(a) The defendant may set forth in the answer under the heading “Counterclaim” any cause of action or setoff which he has against the plaintiff at the time of filing the answer (1) which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiff’s cause of action arose, or (2) which arises from contract or is quasi-contractual.
Regarding Rule 1031(a), Goodrich-Amram states:
... [i]f the defendant’s cause of action is non-contractual, and the defendant may not waive the tort and sue in assumpsit, there is no right of counterclaim, except in the single instance where the cause of action arises out of the tortious acts of the plaintiff in the very transaction upon which the plaintiff is suing and where the tor-tious act is directly connected with the performance of the contract.
2 Goodrich-Amram 2d § 1031(a):l, p. 313 (footnotes omitted) (emphasis supplied).

Although the abuse of process and defamation counterclaims of appellant may not have arisen “but for” the pre-existing contractual relationship, these claims relate only to the circumstances surrounding the manner in which appellees’ claims in assumpsit were asserted, and to the motives of appellees in bringing suit. Thus, the counterclaims neither arise out of the tortious acts of appellees in the very transaction upon which they are suing, nor are they directly connected with the performance of the contract. Furthermore, the operative facts that comprise the claims of each party are unrelated as to time, origin and motivation and do not, if taken together, form a convenient trial unit. The requisite proofs to establish the claims of each party are markedly distinct. As such, judicial economy would not be served by trying both claims together. Case law also supports the lower court’s sustaining the motion to strike. See, O’Conner v. Brown and Park, 60 Pa.D & C2d 377, 380 (1971) (counterclaim based on defamation to an assumpsit action seeking to collect a delinquent debt stricken since not born of same transaction); Girard Discount Company v. Layton, 36 Pa.D & C2d 560 (1960); Reliance Insurance Company v. Petrini Realty and Insurance Company, 5 Mercer 222 (1962) (counterclaim to action based on alleged defamation contained in complaint in assumpsit stricken where the counterclaim’s only relationship to the subject matter of the original complaint was the fact that the alleged libel was published in the complaint); Norristown Ford Company v. Metropolitan Auto Dealers, Inc., 88 Pa.D & C2d 546, 549-550 (1954) (counterclaim of slander was the result of subsequent disputes between parties concerning the terms of contract and did not arise at the time the parties entered into their oral agreement that was basis of plaintiff’s suit); See also, Bloom v. Devonian Gas and Oil Company, 397 Pa. 309, 312, 155 A.2d 195, 196-197 (1959) (counterclaim of tortious interference with contract cannot be asserted to an action in assumpsit since “while the occurrence may arise out of a contractual relationship, the damage was done by tortious conduct and such conduct cannot be the basis of a counterclaim in a suit for assumpsit.”); Riverside Memorial Mausoleum, Inc. v. UMET Trust, 581 F.2d 62, 68 (3rd Cir.1978) (counterclaim of tortious interference cannot be set up as a defense unless the act is directly connected with the performance of the contract); Fyreside Shoppe, Inc. v. Rivken, 79 Lack.Jur. 23 (1977); Sameric Corporation of Brookhaven v. Arthur A. Kober Company, Inc., 73 Pa.D & C2d 437 (1975); Heil Equipment Company of Philadelphia, Inc. v. Diamond Reo Truck Sales, 62 Pa.D & C2d 539 (1972), aff'd per curiam 225 Pa.Super. 755, 306 A.2d 328 (1973) .

Order affirmed.

CAVANAUGH, J., concurs in result.

      . An order sustaining preliminary objections and dismissing a counterclaim is appealable since it puts the defendant out of court as far as the counterclaim is concerned, even though the validity of plaintiff’s claim is still undetermined. Commonwealth v. Orsatti, Inc., 448 Pa. 72, 292 A.2d 313 (1972); Kaskie v. Kaskie, 295 Pa.Super. 523, 442 A.2d 261 (1982).


author: HOFFMAN, Judge:

text:
    476 A.2d 464
    Elma J. EWIAK v. Benjamin T. EWIAK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 27, 1984.
    Filed May 18, 1984.

      Joseph J. May, Erie, for appellant.
    Clinton A. Shamp, Erie, for appellee.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erroneously declined to apply the 1980 Divorce Code, 28 P.S. § 101 et seq., to this partition action. We find no merit in appellant’s contention and, accordingly, affirm.

On April 5, 1978, appellee-wife filed an action in equity against appellant-husband alleging his use of joint funds and seeking an accounting of personalty jointly owned by the parties. In the fall of 1978, following the appointment of a Master, the preparation of an inventory, and a hearing, the lower court determined that appellee was entitled to partition of the parties’ personalty and realty. An October 24, 1978 Decree Nisi, to which appellant did not file exceptions, was finalized on January 26, 1979. On February 5, 1979, appellee filed for permission to amend the bill in equity to include the parties’ realty so that the complaint and decree would be consistent. Appellant’s objection to the amendment was denied and on February 28, 1979, the lower court permitted the amendment. On October 24, 1980, appellant requested and the lower court agreed, to apply the provisions of the 1980 Divorce Code to the pending divorce action. On May 15, 1981, however, the lower court determined that the 1980 Code should not be applied to the completed partition action. On March 29, 1982, the Master filed an amended report containing the appropriate distribution of the real property subject to partition. The lower court then ordered the Master to sell the real estate and distribute the proceeds. On July 2, 1982, the lower court granted appellee’s motion to reduce the October 24, 1978 decree to judgment. Judgment in the amount of $24,170.85, arising from the partition of the parties’ personalty, was thereupon entered in appellee’s favor. This appeal followed.

Appellant contends first that the lower court erred in refusing to apply the 1980 Divorce Code to the 1978 partition action. We disagree. The 1980 Divorce Code provides:

The provisions of this act shall not affect any suit or action pending, but the same may be proceeded with and concluded either under the laws in existence when such suit or action was instituted, notwithstanding the repeal of such laws by this act or, upon application granted, under the provisions of this act. The provisions of this act shall not apply to any case in which a decree has been rendered prior to the effective date of the act.

Divorce Code, April 2, 1980, P.L. 68, No. 26 § 103, 23 P.S. § 103, effective July 2, 1980 (emphasis added).

Here, the lower court entered the Decree Nisi on October 24, 1978. The decree was finalized on January 26, 1979. Appellant failed to file exceptions to the decree. See Pa.R. Civ.P. 1557 (exceptions to be filed within 20 days after the entry of a partition action). Clearly then, a decree had been entered in this case prior to the effective date of the 1980 Code.

Appellant, however, challenges the finality of the decree and avers two theories: (1) no final decree existed until finalization of the divorce as differentiated from the partition action; and (2) the decree was not finalized until July 2, 1982, when the lower court reduced the decree to a monetary amount. We find that neither of these theories has merit. First, the partition and divorce actions were distinct because the partition action resulted in a decree in early 1979, while the divorce action proceeded under the 1980 Code. See Vento v. Vento, 256 Pa.Superior Ct. 91, 389 A.2d 615 (1978) (although parties were not divorced, partition action could proceed and be finalized where defendant employed joint property for his own use). Second, the July 2, 1982 order directing that the October, 1978 decree be reduced to a monetary amount may be appropriately characterized as a mechanism ensuring appellee’s receipt of her share of the jointly owned personalty. Reducing the decree to a monetary amount in no way affects the finality of the partition action. Accordingly, we conclude that because a decree had been entered in the partition action prior to the effective date of the Divorce Code, the lower court correctly refused to consider the partition action under the 1980 Code.

Finding no merit in appellant’s contention, we affirm the order of the lower court.

Affirmed.

      . We agree with the lower court’s conclusion that appellant, in appealing the July, 1982, order, is attempting to circumvent his waiver of objections to the 1978 partition order and to the court’s May, 1981 order refusing to apply the 1980 Code to the partition action. In response to this, appellant relies on Pa.R.Civ.P. 1557, which makes it optional with the unsuccessful party in a partition action "whether to appeal preliminarily or whether to proceed with the balance of the partition proceedings and appeal from the ultimate final decree." 5 Goodrich-Amram 2d § 1557(5). Rule 1557 provides a litigant with the option, after the denial of exceptions taken to the partition action, of appealing before or after the adjudication is finalized. Contrary to appellant's interpretation, we understand Rule 1557 to refer to the final partition decree, and not to the final divorce decree because partition actions may occur in contexts other than divorce. Therefore, even assuming arguendo that appellant filed exceptions to the Decree Nisi, an appeal from the 1978 decree and 1981 order would be considered untimely.

      . Because of our disposition of this appeal, we need not address appellant’s remaining contentions.


author: JOHNSON, Judge:

text:
    476 A.2d 466
    COMMONWEALTH of Pennsylvania v. Carmelo VAZQUEZ, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 3, 1984.
    Filed May 25, 1984.

      William F. Ochs, Jr., Public Defender, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before CIRILLO, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

Following a jury trial, defendant-appellant was found guilty of burglary and criminal trespass. He was subsequently fined and sentenced to a period of not less than one year nor more than four years on the former count, and fined and sentenced to not less than six months nor more than twenty-four months for the latter count. Appellant then promptly brought an appeal to this court.

Appellant raises three issues on review. First, that the evidence was not sufficient to warrant a conviction on the charge of burglary. Second, that the evidence was not sufficient to warrant a conviction on the charge of criminal trespass. Third, that the trial court erred in defining theft in its charge to the jury.

In considering appellant’s first two contentions, this court must view the evidence in the light most favorable to the Commonwealth, as verdict winner. Commonwealth v. Martin, 481 Pa. 515, 893 A.2d 23 (1978). We must also accept as true all evidence and reasonable inferences upon which, if believed, the jury could have properly based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980); Commonwealth v. Biggs, 320 Pa.Super. 265, 467 A.2d 31 (1983).

The opinion issued by the Honorable Thomas J. Eshelman completely and satisfactorily reports the facts as follows:

“[Sjometime during the early evening hours of August 11, 1981, the defendant appeared at the apartment of Jeff Foster, located at 208 North Tenth Street, Reading, Berks County, Pennsylvania. Upon his arrival, the defendant was confronted by Lisa Horn, who was then the only occupant of the apartment. Defendant questioned Miss Horn on the whereabouts of Mr. Foster and was told that the individual was out for the evening. The defendant then departed. Shortly thereafter, Miss Horn also left the apartment, locking the door behind her, and returned to her residence at 206 North Tenth Street.
The testimony also discloses that approximately twenty minutes after the foregoing incident, Miss Horn heard Mr. Foster’s dog barking. She returned to the premises and asked who was inside. Upon such inquiry, a voice from within the locked apartment, which was recognized as that of the defendant, answered, “Carmelo.” Without further query, Miss Horn went back to her residence.
Some forty-five minutes later Miss Horn observed the bedroom and kitchen lights in the Foster apartment go out and returned once more to the scene. After gaining entrance with her key, she noticed several cardboard boxes in the bedroom and kitchen, as well as on the living room floor in front of a stereo system. In addition, one of the closets appeared in a state of disarray. Miss Horn subsequently telephoned Mr. Foster and requested that he immediately return. Prior to his arrival however, the defendant appeared for a brief period and retrieved the cardboard boxes. A later inspection of the apartment by Mr. Foster disclosed that the television set, video recorder and certain stereo components were disconnected. The police were notified and the defendant was thereafter arrested on the basis of information provided by Mr. Foster and Miss Horn.”

Utilizing the appropriate standard, in a light most favorable, to the Commonwealth as verdict winner, the evidence is clearly sufficient to sustain the convictions as to the charges of burglary and criminal trespass. The appellant denies the allegations and renders a completely different version as to the course of events. However, passing upon the credibility of witnesses and the appropriate weight to be accorded the evidence produced at trial is within the sole province of the trier of fact. Commonwealth v. Sample, 321 Pa.Super. 457, 468 A.2d 799 (1983); Commonwealth v. Fortune, 305 Pa.Super. 441, 451 A.2d 729 (1982). It is clear that the jury chose to believe the version presented by the Commonwealth. The evidence, thus taken as a whole, is sufficient to sustain the convictions as to the charges of burglary and criminal trespass.

Although the appellant has not raised the issue of merger on appeal, illegality of sentence is not waivable and can be raised by an appellate court sua sponte. Commonwealth v. Walker, 468 Pa. 323, 330 n. 3, 362 A.2d 227, 230 n. 3 (1976); Commonwealth v. Smith, 499 Pa.Super. 507, 454 A.2d 1 (1982).

In the instant case the act of criminal trespass arose out of the same incident as did the act of burglary. When a person makes but one unlawful entry, he may not be sentenced for both burglary and criminal trespass. Commonwealth v. Casella, 312 Pa.Super. 375, 458 A.2d 1007 (1983); Commonwealth v. Kinnon, 308 Pa.Super. 28, 453 A.2d 1051 (1982); Commonwealth v. Cadogan, 297 Pa.Super. 405, 443 A.2d 1185 (1982); Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980). In Crocker, supra, 280 Pa.Superior Ct. at 475, 421 A.2d at 820, this court noted that:

“[I]n merger of sentences cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be merger and only a single sentence may be imposed, or more than a single act, in which case there will be no merger and a sentence may be imposed for each act.” (Citations omitted).

The case at bar, when utilizing this principle, falls into the former category of but one criminal act. The appellant unlawfully entered the Foster apartment only one time according to the evidence produced at trial. Thus, he can only be sentenced for the crime of burglary, and not for criminal trespass.

Where a correction of sentence is needed, this court has the option of amending the sentence directly or remanding to the lower court for resentencing. Commonwealth v. Simpson, 316 Pa.Super. 127, 462 A.2d 821 (1983); Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981); Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980). Since the sentences in this instance are to run concurrently, we need not remand for resentencing. Instead this court merely vacates appellant’s sentence for criminal trespass.

Finally, the appellant contends that the trial court erroneously charged and instructed the jury as to the charge of theft, since the crime of theft was neither included nor mentioned in the criminal information filed against him. It is not necessary in a prosecution for burglary for the criminal information to specify the crime which the accused intended to commit. Commonwealth v. Franklin, 306 Pa.Super. 422, 452 A.2d 797 (1982); Commonwealth v. Lewis, 276 Pa.Super. 451, 419 A.2d 544 (1980). However, it is necessary for the Commonwealth to prove at trial that the defendant did in fact intend to commit a crime in the building. 18 Pa.C.S. § 3502(a). The Commonwealth’s position, subsequently adopted by the jury, was that the appellant intended to commit the crime of theft after entering the Foster apartment.

The lower court correctly instructed the jury on the crime appellant intended to commit, namely theft. This serves to clarify to the jurors what the Commonwealth had to prove in order to gain a conviction as to the charge of burglary. Commonwealth v. Franklin, supra.

To prohibit a jury instruction as to the crime an appellant allegedly intended to commit would essentially be to deny the appellant an instruction on one of the critical elements of burglary. Since the Commonwealth is required to prove that an accused intended to commit a crime after entering a building or occupied structure, 18 Pa.C.S. § 3502(a), it naturally follows that there should be no prohibition as to giving a jury instruction on the underlying crime if it is requested by counsel or in the alternative felt necessary by the trial judge. Otherwise, the jury could be left to speculate and possibly could not reach an adequate conclusion as to the charge of burglary. See Commonwealth v. Franklin, 306 Pa.Super. at 429, 452 A.2d at 800 (1982).

There was sufficient evidence, albeit circumstantial, presented at trial concerning the attempted theft. Thus the lower court properly charged the jury as to the crime of theft.

As to the charge of criminal trespass, the judgment of sentence is vacated. However, the judgment of sentence as to burglary is affirmed.

      . 18 Pa.C.S. § 3502(a).

      . Id. § 3503(a)(1).

      . The following sections define the crimes of burglary and criminal trespass:
      § 3502. Burglary
      (a) Offense defined. — A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
      § 3503. Criminal Trespass
      (a) Buildings and occupied structures.—
      (1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:
      (i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied or separately secured or occupied portion thereof; or
      (ii) breaks into any building or occupied structure or separately secured or occupied portion thereof.....
      (3) As used in this subsection:

        "Breaks into.” To gain entry by force, breaking, intimidation, unauthorized opening of locks, or through an opening not designed for human access.
      18 Pa.C.S. §§ 3502, 3503.

      . In the applicable section, burglary is defined as follows in pertinent part:
      "A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein ..." (Emphasis added).


author: PER CURIAM:

text:
    476 A.2d 470
    Maurice M. ROSEN, Appellant, v. Sandra Ebersole ROSEN.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1983.
    Filed June 1, 1984.

      Jack A. Rounick, Norristown, for appellant.
    Sandra Rosen, appellee, in propria persona.
    Before CERCONE, President Judge, and JOHNSON and MONTEMURO, JJ.
   PER CURIAM:

Appellant Maurice M. Rosen takes this appeal from the order entered by the Court of Common Pleas of Montgomery County on December 29, 1981 awarding his wife, appel-lee Sandra E. Rosen, interim counsel fees and costs in this divorce action commenced by appellant under the provisions of the Divorce Code of 1980. Instantly, appellant contends that (1) the lower court erred in regarding the above order as interlocutory; (2) the lower court abused its discretion in ordering appellant to pay counsel fees and costs to appellee without first conducting an adequate hearing on the matter; (3) the lower court abused its discretion by ordering appellant to pay such counsel fees and costs directly to appellee’s attorney instead of to appellee herself; and (4) the lower court erred in concluding that appellee was entitled counsel fees and costs arising from the support action.

On June 25, 1980, appellant filed a Complaint in Divorce pursuant to the Divorce Law of 1929 in the Court of Common Pleas of Montgomery County. On July 24, 1980, appellee filed a “PETITION FOR LEAVE TO ASSERT CLAIMS UNDER THE DIVORCE CODE, ACT NO. 26 OF 1980.” On August 4, 1980, the trial court entered an order granting appellee leave “to file any available counterclaims and seek additional relief pursuant to the Divorce Code, Act No. 26 of 1980.” Appellee, on October 31, 1980, filed a counterclaim in divorce in which she advanced, inter alia, a claim for counsel fees and costs. By order dated August 18, 1981, the lower court scheduled a hearing on the matter of counsel fees and costs. Three separate hearings were conducted by the court on November 13, 1981, December 16, 1981, and December 17, 1981.

On December 29, 1981, the lower court entered an order awarding appellee interim counsel fees of $7500 and costs of $1,654.80. Appellant filed a Notice of Appeal from such order on January 4, 1982 and filed a Statement of Matters Complained of On Appeal on January 18, 1982. The statement was subsequently amended by appellant on February 10, 1982.

Pursuant to Pa.R.A.P. 1925, the lower court filed an opinion on May 6, 1982 which concluded that the appeal should be quashed insofar as it was taken from an order which, in light of the provisions of the new Divorce Code, must be regarded as interlocutory. The view adopted by the lower court in the instant case, that the equitable distribution provisions embodied in the new Divorce Code have effectively eradicated the finality which previously cloaked orders awarding interim fees and costs, is not entirely without logic. However, it is clear that the lower court did not enjoy the benefit of our recent en banc opinion in Sutliff v. Sutliff, 326 Pa. Superior Ct. 496, 474 A.2d 599 (1984). Speaking for a majority of the Court in Sutliff, Judge Cavanaugh reaffirmed the validity of the cases which held that the grant of expenses in a divorce action is an appealable order.

“It is settled law that an order granting such interim relief is final and appealable, insofar as the money to be paid under the order is involved, since once paid the money is likely unrecoverable. Rutherford v. Rutherford, 152 Pa.Superior Ct. 517, 32 A.2d 921 (1943)” Sutliff, 326 Pa.Superior Ct. at p. 496, 474 A.2d at p. 599.

See Lynn v. Lynn, 68 Pa.Superior Ct. 324 (1917); Paul v. Paul, 281 Pa.Superior Ct. 202, 421 A.2d 1219 (1980).

Consequently, we agree with appellant that the instantly-challenged order awarding appellee interim counsel fees and costs in this divorce action instituted under the Divorce Code constitutes a final, appealable order and thus is properly subjected to our scrutiny on appeal.

However, we are precluded from reaching the merits of this appeal because appellant has failed to file exceptions to the order of the lower court, which fact renders his issues waived. Sutliff v. Sutliff, supra; Carangelo v. Carangelo, 321 Pa.Superior Ct. 219, 467 A.2d 1333 (1983); Dewalt v. Dewalt, 309 Pa.Superior Ct. 275, 455 A.2d 156 (1983).

Therefore, the order of the lower court is affirmed.

      . Act of April 2, 1980, P.L. 63, No. 26, 23 Pa.S.A. § 101 et seq.

      . The Divorce Law, Act of May 2, 1929, P.L. 1237, as amended, 23 P.S. § 1 et seq. (repealed).


author: MONTEMURO, Judge:

text:
    476 A.2d 908
    COMMONWEALTH of Pennsylvania v. Jerry KARL, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1984.
    Filed June 15, 1984.

      Thompson J. McCullough, York, for appellant.
    Floyd P. Jones, Assistant District Attorney, York for Commonwealth, appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from the judgment of sentence entered against the appellant for resisting arrest and for three summary offenses. Appellant was adjudged guilty of resisting arrest by a jury, and guilty of the summary offenses by the trial judge. Thereafter appellant filed a motion in arrest of judgment. This motion was argued and denied. Appellant was sentenced to pay a fine of five hundred dollars ($500.00) and the costs of prosecution on the resisting arrest charge. On the three summary offenses, he was sentenced to pay a total of seventy five dollars ($75.00) in fines and pay the costs of prosecution. This appeal is from the final judgment of sentence.

Appellant contends that the trial court erred in sending the issue of whether he was guilty of resisting arrest under 18 Pa.C.S.A. § 5104 to the jury (i.e. that the court below erred in refusing to grant his demurrer). The statute on resisting arrest, 18 Pa.C.S.A. § 5104 states:

§ 5104. Resisting arrest or other law enforcement

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

The appellant argues in support of his contention that: (1) given the finding by the court below that the arrest underlying the resisting arrest charge was illegal, he could not as a matter of law be convicted under the provision of § 5104 pertaining to lawful arrest; (2) he was charged only with resisting the police officers after he had been placed under arrest, and not with preventing the police officers from discharging any other duty and therefore could not as a matter of law be convicted under the provisions of § 5104 pertaining to discharge of public duty; (3) in any event, the evidence shows only that he resisted the police officers after they unlawfully placed him under arrest and that there is no evidence that he prevented the police officers from discharging any other duty within the meaning of 18 Pa.C.S.A. § 5104.

The Commonwealth concedes that the court below found that the arrest of the appellant underlying the resisting arrest charge was illegal since the offense was not committed in the view of the officers'. However, the Commonwealth submits that: (1) the bill of information charging the appellant recited the alternative language of the statute; (2) the evidence supports a finding that appellant interfered with the police officers’ investigation of the underlying incident and therefore it was appropriate for the court below to send the case to the jury.

The trial court accepted the Commonwealth’s theory that the appellant could be found in violation of Section 5104 by resisting the police officers while they were investigating the underlying incident. Furthermore, the court below found that the information charging the appellant did not refer only to the “arrest” of the appellant, but it recited the exact language of § 5104. On the above stated grounds the trial court sent the case to the jury. We reject this determination and vacate the judgment of sentence for the reasons which follow.

The test to be applied in ruling on whether the trial court erred in sending the issue to the jury is whether the Commonwealth’s evidence and all reasonable inferences therefrom are sufficient to support a verdict of guilty beyond a reasonable doubt. Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977); Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1976); Commonwealth v. Bastone, 321 Pa.Super. 232, 467 A.2d 1339 (1983); Commonwealth v. Middleton, 320 Pa.Super. 533, 546-547, 467 A.2d 841, 847 (1983).

Viewed in that, light, the following was adduced at trial: In the late evening hours of September 22, 1981, the appellant was sitting in a vehicle parked at the curb on Market Street in the city of York. He was arguing with Elaine Marden, who was sitting on the steps in front of a house adjacent to the vehicle. Suddenly appellant pulled away from the curb and struck another vehicle being driven by Michael E. Grove. After the accident the appellant left the scene.

Soon afterwards the York Police arrived on the scene and commenced an investigation into the accident. While the officers were questioning Elaine Marden, Michael E. Grove, the owner of the struck vehicle, spotted the appellant about one quarter (V4) of a block or about eighty (80) feet away, walking toward the scene. Grove indicated to the officers that the man he saw was the man who was driving the vehicle which had struck his vehicle earlier. Elaine Marden identified the man as Jerry E. Karl, the appellant.

The officers asked Elaine Marden to call to the appellant, which she did. The appellant did not respond to her call and turned to return to his vehicle. Upon seeing the appellant turn to leave, the officers gave chase and caught up with the appellant as he was about to enter the vehicle. The officers requested identification and the appellant identified himself as Jerry E. Karl. Having learned his identity, the officers placed the appellant under arrest for “hit and run”.

The officers instructed the appellant to return to the police cruiser with them and further instructed him not to communicate with Elaine Marden. The appellant accompanied the officers to the police cruiser parked at the scene, without physical resistance, but ignored their instruction not to attempt to communicate with Ms. Marden. The appellant’s attempts to communicate with Ms. Marden were loud and offensive.

When the officers and the appellant arrived at the police cruiser, the officers placed him in the back seat, but the appellant refused to put his feet in the cruiser thereby making it impossible for the officers to shut the door of the cruiser. Furthermore, the appellant continued his attempts to communicate with Ms. Marden. One of the officers attempted, without success, to physically place the appellant’s feet into the police cruiser. The officer then tried to shove the appellant completely into the cruiser by pushing the butt end of a metal flashlight into the appellant’s chest. This attempt also failed.

Finally, with the assistance of another officer, the appellant was physically removed from the back seat and brought to the rear side of the cruiser. The officers attempted to handcuff the appellant, but he refused to submit. A struggle ensued, during which the officers used physical force and mace before they were able to get the handcuffs on the appellant. As the officers were leading the appellant back to the curb side of the police cruiser, the appellant buckled his knee and threw his weight violently down towards his right shoulder sending the two officers onto the pavement. Ultimately, with the assistance of a third officer, he was subdued and placed in the back seat of a police cruiser. As a result of the struggle, the officers involved sustained minor personal injuries.

The provisions of 18 Ea.C.S.A. § 5104 are clearly disjunctive. To be convicted under the first provision of § 5104, it is essential that there be a lawful arrest. See Commonwealth v. Eberhardt, 304 Pa.Super. 222, 450 A.2d 651 (1982); Commonwealth v. Whitner, 241 Pa.Super. 316, 361 A.2d 414 (1976); Commonwealth v. Bartman, 240 Pa.Super. 495, 367 A.2d 1121 (1976); Commonwealth v. Stortecky, 238 Pa.Super. 117, 352 A.2d 491 (1975). In this case there is no evidence to show that the arrest underlying the resisting arrest charge was lawful. In fact both parties and the trial court agree that the York police officers did not have the authority to make a lawful arrest for “hit and run” — that is, leaving the scene of an accident after hitting an attended vehicle — because the incident did not occur in the presence of the officers. Under such circumstances, the appellant could not, as a matter of law, be convicted under the provisions of § 5104 pertaining to lawful arrest.

In light of the foregoing, the latter provision of § 5104, pertaining to “discharging any other public duty” besides effecting a lawful arrest, must be relied upon. To be convicted under the latter provision of § 5104, it is essential that there be a “discharge of any other duty” within the meaning of the statute. If we accept the argument of the Commonwealth, as did the trial court, the statute would be interpreted to allow every resisting arrest charge to stand whether or not supported by a lawful arrest. The police would undoubtedly argue in every case where there was an unlawful arrest that they were merely discharging a duty by investigating the circumstances surrounding the underlying incident. The grave abuse invited by such an interpretation of the “discharge of any other duty” provision of § 5104 was clearly not contemplated. An indication of what was contemplated is found by turning to Section 242,2 of the Model Penal Code, which § 5104 was modeled after. The Model Penal Code § 242.2 comment 5 (Official Draft and Revised Comments 1980), which deals with the physical obstruction of discharge of public duty, states:

Section 242.2 covers physical interference in a host of circumstances in which public servants discharge legal duties other than arrest. These include, for example, a policeman executing a search warrant, a fireman putting out a blaze, a forest or agricultural official making required inspections, an election official charged with monitoring balloting, and the like. (Emphasis added).

Therefore we hold that the court below should not have sent the issue of resisting arrest to the jury because the evidence was not sufficient to support a verdict of guilty beyond a reasonable doubt.

Judgment of sentence is vacated as to resisting arrest.

      . 18 Pa.C.S.A. § 5104.

      . Criminal mischief, 18 Pa.C.S.A. § 3304; Driving an unregistered motor vehicle, 75 Pa.C.S.A. § 1301; Accident involving damage to attended vehicle or property, 75 Pa.C.S.A. § 3743.


author: SPAETH, President Judge: HOFFMAN, Judge,

text:
    476 A.2d 911
    COMMONWEALTH of Pennsylvania, Appellant, v. Colleen Ann O'SHEA. COMMONWEALTH of Pennsylvania, Appellant, v. Ciri Michael TANNHAUSER. COMMONWEALTH of Pennsylvania, Appellant, v. Danny Ira ROTH. COMMONWEALTH of Pennsylvania, Appellant, v. Hannu Olavi JOENSUU.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1984.
    Filed April 27, 1984.
    Reargument Denied June 29, 1984.
    Petition for Allowance of Appeal Denied Feb. 7, 1985.

      Charles W. Kirkwood, Assistant District Attorney, Stroudsburg, for Commonwealth, appellant.
    John P. Lawler, Stroudsburg, for appellees.
    Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.
   SPAETH, President Judge:

This is an appeal by the Commonwealth from an order suppressing evidence. Finding the affidavit on which the search warrant was issued sufficient to establish probable cause, we reverse and remand for trial.

Each of appellees, Tannhauser, Joensuu, O’Shea, and Roth, is charged with possession of a controlled substance, possession of a controlled substance with intent to deliver, delivery of a controlled substance, and criminal conspiracy. The charges arise from a search of the Roth residence. The search was conducted pursuant to a warrant and led to the seizure of, inter alia, approximately 5,100 pounds of marijuana. Appellees moved to suppress the evidence on the ground that the affidavit on which the warrant was issued did not establish probable cause.

A hearing on the motion to suppress was held on September 29, 1981. Pursuant to Pa.R.Crim.P. 323(f), appellees requested that the hearing be held in private. The request was granted, and the transcript concludes with the statement that after an off-the-record discussion, “the reporter was advised by the Court that he would not be needed, that the remainder of the hearing would be in the form of arguments by counsel, all counsel agreeing, whereupon the reporter left____” After hearing argument, the trial court, by order dated September 30, 1981, ordered the evidence suppressed, holding in an opinion accompanying the order that the affidavit on which the warrant was issued did not establish probable cause. The Commonwealth then filed this appeal. The record discloses that the suppression order substantially handicaps the Commonwealth’s prosecution, for without being able to use the seized marijuana as evidence, the Commonwealth may well have no case. The appeal is therefore not interlocutory. Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983).

Following its appeal, the Commonwealth petitioned this court to remand the record to the trial court for a hearing. In its petition the Commonwealth alleged that a hearing had not been held on appellees’ motion to suppress and that a hearing was necessary to establish: (1) that the trial court made a factual error in its opinion; (2) that appellees Tannhauser, Joensuu, and O’Shea had no standing to challenge the search; (3) that probable cause did exist based on facts additional to those recited in the affidavit on which the warrant issued; and (4) that the police acted in good faith. By Per Curiam order dated February 18, 1982, this court granted the petition for remand, and pursuant to this order, the trial court conducted evidentiary hearings. Meanwhile, by Per Curiam order dated January 12, 1983, this court amended its order of February 18, 1982, to allow the trial court to make “such findings of fact and conclusions of law as it deems appropriate as the hearing tribunal.” Pursuant to this amendment, the trial court by opinion dated June 6, 1988, made findings of fact and conclusions of law, and held that appellees Tannhauser, O’Shea, and Joensuu had no standing to challenge the validity of the warrant, that the police had probable cause to stop and search Joensuu, and that the execution of the warrant was illegal because there were no exigent circumstances to justify the failure of the police to knock and announce their presence before entering the Roth residence. Upon the Commonwealth's application for reargument and reconsideration, the court by opinion dated July 13, 1983, made additional findings of fact and conclusions of law, and held that the police had observed the knock-and-announce rule and that the search warrant was legally executed. In an addendum to this opinion, the court, noting the United States Supreme Court’s recent decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), concluded that considering the totality of circumstances and applying a common-sense approach, the police and the District Justice who issued the warrant “had a substantial basis to find that there was a ‘fair probability’ that there was [sic] contraband drugs in the Roth residence.” The court then recommended that suppression of the seized marijuana be denied.

The Commonwealth argues — to state the argument generally — that this court should adopt the trial court’s recommendation, and on the strength of it, vacate the court’s earlier suppression order. This general argument divides into several arguments. With respect to appellees Tannhauser, Joensuu, and O’Shea, the Commonwealth argues that they lacked standing to challenge the search and that even if they had standing, the affidavit established probable cause. With respect to appellee Roth, the Commonwealth argues in the alternative: that the affidavit established probable cause; or that the totality of circumstances established probable cause; or that the exclusionary rule should not be applied in this lease.

-1-

The Commonwealth argues that appellees Tannhauser, Joensuu, and O’Shea lacked standing to challenge the validity of the search because they were “simply visitors” at the Roth residence and therefore had no reasonable expectation of privacy there. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). The Commonwealth first raised this issue in its petition to this court seeking a remand for a hearing on the suppression motion. Appellees argue that the Commonwealth bears the burden of proof on this issue and therefore waived any objection to appellees’ standing by not raising the issue at the September 29, 1981, hearing on the suppression motion. Alternatively, appellees argue that the evidence produced on remand was sufficient to prove their standing. The Commonwealth argues that appellees bear the burden of proving their standing to challenge the search and that it was therefore their burden to offer evidence on the issue at the September 29, 1981, hearing. Alternatively, the Commonwealth argues that the evidence introduced on remand proved that appellees had no standing.

We need not resolve the dispute about waiver and burden of proof. In Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), our Supreme Court held that a defendant accused of a possessory crime will continue to have “automatic standing” under Article I, section 8, of the Pennsylvania Constitution to challenge the admissibility of evidence alleged to be the fruit of an illegal search. In so holding, the Court declined to follow the United States Supreme Court’s decision in United States v. Salvucci, supra, in which that Court abolished “automatic standing” under the federal constitution. Since appellees have been charged with possessory offenses, they are entitled to “automatic standing” under the Pennsylvania Constitution to maintain a motion to suppress.

-2-

In considering the Commonwealth’s argument that the affidavit established probable cause for the issuance of a warrant to search the Roth residence, we shall not repeat verbatim all fourteen paragraphs of the affidavit, for that would serve no useful purpose. The averments of the affidavit are substantially as follows:

1. Affiant is a state police officer asssigned to Region 1 Narcotics Strike Force since 1975.
2. Affiant is familiar with operations of drug smugglers and distributors.
3. During surveillance by affiant and Cpl. Edward Long, Jack Callahan, Herbert Bailey, Hanna Joen-suu and Tony Lemisch were observed at the Roth residence.
4. A records check, by affiant showed that all persons named in paragraph 3 as having been observed at the Roth residence had been previously arrested for drug violations.
5. Confidential source informed affiant on July 7, 1981, that a Ryder truck had been rented in Miami, Florida, on June 26, 1981, to Leslie Morris of 544 Sylvan Cascade Rd., and would be returned to a Ryder agent on July 4, 1981, in Stroudsburg, PA.
6. Two confidential sources informed Trp. James McAndrew on July 7, 1981, that the Ryder truck was observed at 544 Sylvan Cascade Road on July 1, 1981.
7. On July 6, 1981, an unidentified woman telephoned the Ryder agent and said the Ryder truck was not yet unloaded and wouldn’t be returned for a couple of days.
8. A confidential source told affiant on July 6, 1981, that a Ryder truck driven by a white female had arrived at the Roth residence at 1530 hours.
9. Affiant and other officers then conducted continuous surveillance of the Roth residence and the Ryder truck and observed no activity for about 30 hours.
10. Two vehicles arrived at the Roth residence on July 7, 1981, at 2200 and 2230 hours, one operated by Joen-suu; the Ryder truck was then unloaded, the unloading taking about an hour, and the contents were taken inside the Roth residence.
11. [We do quote this paragraph verbatim, for as will appear, it is crucial to the inquiry on probable cause.] At approximately 0030 hours a vehicle was observed leaving the residence at RD # 6 Strouds-burg, Pa. [the Roth residence]. This vehicle was surveilled and stopped a short time later. At this time approximately two ounces of suspected marijuana was observed in the back seat of the vehicle, which the affiant believes to be a sample of marijuana, and part of a shipment of marijuana which arrived in the previously mentioned Ryder truck. As a result of this seizure of marijuana the operator, Hannu JOENSUU, 310 North West First Ave., Boy-ton Beach Florida was arrested for violation of the Controlled Substance Drug Device and Cosmetic Act, Act 64.
12. Joensuu was convicted for selling a large amount of marijuana to undercover agents from Florida in 1977.
13. Affiant knows that large amounts of marijuana are smuggled into Miami, Florida, and the above facts constitute drug smuggling.
14. Affiant requests nighttime search.

“Probable cause to issue a search warrant has been defined as those facts reasonably necessary to show (1) that the items sought are connected with criminal activity, and (2) that the items will be found in the place to be searched.” Commonwealth v. Council, 491 Pa. 434, 443, 421 A.2d 623, 627 (1980) (citations omitted). “[Wjhere a magistrate has found probable cause to issue a search warrant, we should not, as a reviewing court invalidate the warrant by interpreting the affidavit in a hyper-technical, rather than a common sense manner ____ Rather we must test and interpret the affidavit in a realistic fashion, and the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants.” Commonwealth v. Nycz, 274 Pa.Super. 305, 312, 418 A.2d 418, 422 (1980) (citations omitted). Applying these principles to the above affidavit, we conclude that the affidavit was sufficient to establish probable cause.

Paragraphs 1 and 2 of the affidavit identify the affiant. Paragraphs 3, 4 and 12 aver that four persons, “previously arrested for drug violations”, were seen at the Roth house; one of them “was convicted for selling a large amount of marijuana to undercover agents from the state of Florida in 1977.” Paragraphs 5 through 10 and Paragraph 13 aver that a Ryder truck was rented in Miami, Florida; that large amounts of marijuana are smuggled into Miami; and that the truck was unloaded late in the evening at the Roth residence and the contents of the truck taken inside the house. These averments were insufficient to establish probable cause; nothing in them indicated that there was any marijuana in the truck or in the Roth residence.

In Commonwealth v. Davis, 225 Pa.Super. 242, 310 A.2d 334 (1973), we held the following averments insufficient to establish probable cause to search a house: (1) numerous visits by individuals reputed to be narcotics pushers; (2) appellant’s reputation as a narcotics pusher and recent arrest on a narcotics charge; (3) a visit by an individual in a dump truck who gave a package to appellant’s wife who carried it to the house under her coat; and (4) a change of license plates from appellant’s to a different car. We noted that carrying a package into a house under a coat is consistent with innocent intentions. The same may be said of the fact that a truck from Miami, Florida, was unloaded late in the evening; also, further consistent with innocence, nothing in the affidavit indicates that those unloading the truck attempted to conceal the contents of the truck or their activities. The fact that there were persons at the residence who had been arrested or convicted for drug violations no doubt made the officers suspicious, but it gave them no probable cause to search the house. Commonwealth v. Dial, 218 Pa.Super. 248, 276 A.2d 314, aff’d. in part and rev’d. in part on other grounds, 445 Pa. 251, 285 A.2d 251 (1971). “A suspicion, no matter how strong, does not amount to probable cause.” Commonwealth v. Davis, supra, 225 Pa.Super. at 246-47, 310 A.2d at 337.

The crucial paragraph of the affidavit, as we have remarked, then, is paragraph 11, in which the stop of appellee Joensuu’s car and the arrest of Joensuu are described. (Joensuu was the individual identified in paragraph 12 as having been convicted in 1977 of selling a large amount of marijuana.) This is the only part of the affidavit that goes beyond general descriptions of suspicious activity.

It appears from the trial court’s opinion of September 30, 1981, that the court erroneously believed that the stop of Joensuu was made pursuant to the affidavit and warrant at issue. Thus the court stated that the affidavit was insufficient to establish probable cause to believe that Joensuu’s car contained incriminating evidence or was involved in criminal activity, and that therefore the stop was illegal and any evidence obtained by the stop was tainted. However, the legality of the stop is not at issue; indeed, we may assume that the stop was illegal. What is at issue is the sufficiency of the affidavit.

We have already discussed most of the paragraphs of the affidavit, and have characterized them as justifying no more than a suspicion that the persons unloading the Ryder truck and transferring its contents into the Roth residence were engaged in some sort of illegal activity. After considerable reflection, and we acknowledge with some hesitancy, we have concluded that when the averments of paragraph 11 of the affidavit are considered, this suspicion rises to the level of probable cause.

The affidavit is certainly inarticulate and awkwardly worded, and we have a good deal of sympathy with the trial court’s conclusion that it was insufficient. Nevertheless, the affiant, a State trooper, did say in paragraph 11 that he “believe[d] [the two ounces of marijuana found in Joensuu’s car] to be a sample of marijuana, and part of a shipment of marijuana which arrived in the previously identified Ryder truck.” (Emphasis added.) Admittedly, this may be read as averring no more than a guess, and a not particularly logical guess at that: Simply because marijuana is found in a car is no reason to suppose it came from a truck. In other words, who is to say that the marijuana wasn’t in Joensuu’s car all along? But when this point has been made, the fact remains that the trooper referred to “a shipment of marijuana which arrived in the previously mentioned Ryder truck.” The phrase “previously mentioned” takes one back to paragraph 10 of the affidavit, where it is averred that the Ryder truck was unloaded, the unloading taking about an hour, and the contents were taken inside the Roth residence, and to paragraph 9, where the trooper identifies himself as one of a group of officers who conducted a continuous surveillance of the Roth residence and of the Ryder truck. Fairly read, which is to say, in a “common sense ... realistic fashion,” and resolving a “doubtful” case “by the preference to be accorded to warrants,” Commonwealth v. Nycz, supra, we think that what the affiant meant to say, and should be understood as saying, is that he saw a shipment of marijuana being unloaded from the Ryder truck into the Roth residence. Cf. Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979) (motion to suppress based on theory that affidavit should have alleged that markings “were” identical rather than that affiant “believed” markings were identical would have been merit-less). Why he didn’t say so in so many words is a puzzle, probably explained by self-consciousness in writing what the affiant regarded as a legal document, with a consequent resort to stilted language. However that may be, we are satisfied as to the intended meaning. With this conclusion, decision is easy; for a police officer’s affidavit that he saw marijuana being unloaded into a house is plainly probable cause to issue a warrant to search the house.

-3-

The Commonwealth also argues with respect to appellant Roth that even if the affidavit was insufficient to establish probable cause, the totality of circumstances known to the police, as established by the evidence produced on remand, shows that the police officers in fact had probable cause to search the Roth residence. Strictly speaking, we need not consider this argument, for we have held the affidavit sufficient. We recognize, however, that evidence was produced on remand, and that the trial court has made findings of fact and filed a supplemental opinion based on that evidence. In these circumstances, we shall consider whether the evidence produced on remand was admissible on the issue of probable cause.

The evidence was not admissible, and we have not considered any of it. In retrospect we observe that our remand for the taking of evidence was improvidently issued. Pa.R.Crim.P. 2003(b) provides that in any hearing on a motion for suppression of evidence obtained pursuant to a search warrant, “no evidence shall be admissible to establish probable cause other than the affidavits” sworn to before the issuing authority. See also Commonwealth v. Ryan, 268 Pa.Super. 259, 407 A.2d 1345 (1979), remanded, 489 Pa. 221, 414 A.2d 37 (1980) (for clarification of order), on remand, 277 Pa.Super. 262, 419 A.2d 762 (1980) (remanded for new suppression hearing) (court cannot go outside four corners of affidavit in deciding whether probable cause existed, although it is Commonwealth’s burden to introduce evidence to prove validity of statements therein if challenged by defendant). The search of the Roth residence was conducted pursuant to a warrant. The Commonwealth, therefore, may not go outside the averments in the affidavit to establish the existence of probable cause and the validity of the warrant.

-4-

With respect to appellee Roth, the Commonwealth argues that even if the affidavit was insufficient and the search was therefore illegal, the exclusionary rule should be modified and the evidence should not be suppressed in this case. Again, strictly speaking we need not consider this argument, but we nevertheless shall consider it because the Commonwealth has pressed it with great vigor — we assume because it recognizes that the affidavit is marginal. The Commonwealth’s argument is in two parts. First, the Commonwealth argues that the evidence should not be suppressed because the police acted in the reasonable and good faith belief that they had a valid warrant. Second, the Commonwealth argues that the evidence should not be suppressed because the magistrate erred in issuing the search warrant and that error was not the result of police misconduct. The Commonwealth argues that if the magistrate had properly refused to issue a warrant on the basis of the affidavit in question, the officers, since they actually had probable cause, would have been able to supplement the affidavit to make it sufficient to establish probable cause on its face.

These arguments are also without merit. Although the exclusionary rule may in the future be modified by the United States Supreme Court, the Court has yet done so, and this court is bound to apply the exclusionary rule as it now exists under the decisions of the Pennsylvania and United States Supreme Courts. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (evidence seized in violation of defendant’s rights under the fourth amendment to the United States Constitution must be suppressed by state courts); Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980) (evidence seized in violation of defendant’s rights under Article I, section 8 of Pennsylvania Constitution must be suppressed).

The order of the trial court is reversed and the case is remanded for trial.

Jurisdiction is relinquished.

HOFFMAN, J., files a dissenting opinion.

Before SPAETH, President Judge, and BECK and HOFFMAN, JJ.

HOFFMAN, Judge,

dissenting:

The majority finds the affidavit on which the search warrant was issued sufficient to establish probable cause. Because I believe that the affidavit established only the suspicion of illegal activity, I must dissent.

My disagreement stems from the majority’s interpretation of paragraph 11 of the affidavit, which avers:

11. At approximately 0030 hours a vehicle was observed leaving the residence at RD # 6 Stroudsburg, Pa. [the Roth residence]. This vehicle was surveilled and stopped a short time later. At this time approximately two ounces of suspected marijuana was observed in the back seat of the vehicle, which the affiant believes to be a sample of marijuana, and part of a shipment of marijuana which arrived in the previously mentioned Ryder truck. As a result of this seizure of marijuana the operator, Hannu JOENSUU, 310 North West First Ave., Boyton Beach Florida was arrested for violation of the Controlled Substance Drug Device and Cosmetic Act, Act 64.

(Emphasis added). The majority interprets the above-emphasized portion to mean “that what the affiant meant to say, and should be understood as saying, is that he saw a shipment of marijuana being unloaded from the Ryder truck into the Roth residence.” (Majority Opinion at 16) (emphasis added). In reaching this conclusion, the majority refers to paragraph 10 of the affidavit, where it is averred that the Ryder truck was unloaded and the contents taken inside the Roth residence, and to paragraph 9, where the affiant identifies himself as one of a group of officers who conducted a continuous surveillance of the Roth residence and the Ryder truck. In paragraphs 9 and 10, however, the affiant never identifies the contents of the Ryder truck as a shipment of marijuana. The majority characterizes the affiant’s failure to expressly say that he saw a shipment of marijuana being unloaded as “a puzzle” but explains such failure to be the result of “self-consciousness in writing what the affiant regarded as a legal document”. (Majority Opinion at 16).

I do not find the affiant’s failure to identify the contents of the Ryder truck puzzling. The affiant did not identify the contents of the Ryder truck in paragraph 10 because he could not. Had he seen a shipment of marijuana being unloaded from the truck, he could have easily — and probably would have — said so in the affidavit. With regard to the above-emphasized portion of paragraph 11, I think it is clear that the affiant was merely making a personal speculation or guess as to the source of the suspected marijuana found in the vehicle. Hence, I cannot accept the majority’s strained interpretation of paragraph 11, which I deem to be an unsupported assumption.

The majority concedes that the other averments in the affidavit establish only a suspicion of illegal activity occurring at the Roth residence. See Commonwealth v. Davis, 225 Pa.Super. 242, 246-47, 310 A.2d 334, 337-38 (1973) (“A suspicion, no matter how strong, does not amount to probable cause[.]”). Accordingly, because I disagree with the majority’s conclusion that paragraph 11 raises this suspicion to the level of probable cause, I would affirm the suppression order.

I dissent.

      . Although the Commonwealth argues that the trial court changed its mind regarding the sufficiency of the affidavit, and that this change of mind led to the court’s recommendation in its opinion of July 13, 1983, that suppression be denied, it is clear from the court’s opinion that its recommendation was based on its consideration of facts that were not a part of the affidavit but were shown by testimony on remand. The court prefaced its recommendation with the statement: “Considering the totality of the circumstances as detailed in our Findings of Fact----” When in its original opinion, of September 30, 1981, the court considered only the affidavit, it found the affidavit insufficient to establish probable cause, and therefore entered the suppression order here at issue.

      . Paragraphs 5 through 8 all refer to information received from unidentified sources. Appellees argue that the affidavit does not contain averments sufficient to credit these sources and their information as reliable under the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court rejected the two-prong test of Aguilar and Spinelli and reaffirmed a totality of circumstances analysis, which was adopted and applied retroactively by this court in Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983). See also Commonwealth v. Rosario, 320 Pa.Super. 215, 467 A.2d 5 (1983) (in examining totality of circumstances, court considers: (1) information independent of anonymous tip, (2) information corroborating tip, and (3) content of tip). Here we need not decide whether the unidentified sources and their information were reliable. We may assume, as appellees argue, that they were not reliable, for as will be discussed, the sufficiency of the affidavit depends on averments of what the officers themselves saw, and an issuing authority may assume the reliability of an officer. United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (“Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.”); United States v. Various Gambling Devices, 478 F.2d 1194, 1200 (5th Cir.1973).

      . Appellee Joensuu argues that the stop was illegal and that therefore the fruits of the stop must be suppressed. However, he was not charged with an offense on the basis of the marijuana seized in the stop, and he did not move for the suppression of this evidence. In addition, even if the stop was illegal, the evidence seized in the search of the Roth residence was not the fruit of the stop. As stated, supra n. 2, the search was conducted pursuant to the warrant, the sufficiency of which turns not on the averments regarding the stop but on the averments of what the officers themselves saw. See Commonwealth v. Cosby, 234 Pa.Super. 1, 335 A.2d 531 (1975) (inclusion of illegally obtained evidence does not invalidate warrant based on other sources that are valid and sufficient to constitute probable cause).

      . Although the Commonwealth does not expressly make this argument with respect to appellees Tannhauser, O’Shea and Joensuu, it implicitly makes it when, in the course of its argument that the affidavit was sufficient to establish probable cause, it refers to facts developed on remand but not recited in the affidavit.

      . The Commonwealth does not argue that it was entitled to search the residence in the absence of a warrant.