author: CIRILLO, Judge: TAMILIA, Judge,

text:
    654 A.2d 569
    Linda KOHLER v. David BLEEM v. Benjamin KOHLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1994.
    Filed Feb. 6, 1995.

      Gregory A. Henry, Bradford, for appellant.
    Dennis Luttenauer, Kane, for appellee David Bleem.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of McKean County. We reverse.

Appellant Benjamin S. Kohler was voluntarily sterilized by vasectomy in June of 1970. Mr. Kohler’s semen was tested in August of 1970 and no spermatozoa were seen. Four years later, appellant married appellee Linda M. Kohler. Mrs. Kohler was aware of Mr. Kohler’s vasectomy prior to the marriage.

Early in 1982 Mrs. Kohler determined that she was pregnant. She told her husband that the father of the child was a man from Buffalo; she made up a first name and told Mr. Kohler that she did not know exactly where he lived. Despite the circumstances, Mr. Kohler agreed to stay with Mrs. Kohler and help her financially as Mrs. Kohler was unemployed and her health insurance was maintained through Mr. Kohler’s employer.

Mrs. Kohler’s daughter, Leslie, was born in June of 1982. It was not until 1987 that Mr. Kohler learned that Leslie’s father in fact was Mr. Bleem, a next-door neighbor and friend of the Kohlers. Mr. Bleem admitted his paternity to Mrs. Kohler and to Mrs. Kohler’s sister; he did not, however, admit this to Mr. Kohler.

In the meantime, Mr. Kohler had contrived a story to his own mother that his vasectomy had been reversed. He did this, apparently, so as not to upset his mother. Thereafter, Mr. Kohler told his mother the truth, as he then understood it. This was prior to Mr. Kohler’s learning that Mr. Bleem was Leslie’s father.

Mr. Bleem and Mrs. Kohler had been involved in an adulterous relationship for approximately four years prior to Leslie’s birth; they continued the relationship after Leslie’s birth. In 1988, one year after learning of the relationship between his wife and Mr. Bleem, Mr. Kohler left the marital home. Mr. Kohler testified that he could live with the idea that a stranger had fathered his wife’s child, but he could not tolerate the idea of living next door to the man.

After the Kohlers separated, Mr. Bleem maintained a relationship with both Mrs. Kohler and Leslie. Leslie referred to Mr. Bleem as “Uncle Dave.” Mr. Bleem had been in frequent contact with Leslie since her birth and he continued that relationship with her after the Kohlers’ separation. Leslie continued to visit and spend the night at Mr. and Mrs. Bleem’s home. Mr. Bleem bought presents for Leslie, gave Mrs. Kohler money for Leslie’s benefit, and visited Leslie frequently-

On May 16, 1989, Mrs. Kohler filed a support action against Mr. Bleem; at this point, Mr. Bleem restricted his contact with Leslie and filed a complaint to join Mr. Kohler as an additional defendant. The trial court ordered blood tests for all parties involved. The tests revealed that Mr. Kohler was positively excluded as Leslie’s father, and that the probability of Mr. Bleem’s paternity was 98.72%.

In March of 1990, Mr. Kohler filed a complaint in divorce; he made no claim for custody, partial custody, or visitation of Leslie. The Kohlers were divorced on August 16, 1990.

On January 27,1992, Mr. Bleem filed a motion for summary judgment averring that Mr. and Mrs. Kohler were both es-topped from denying Mr. Kohler’s paternity. The trial court denied Mr. Bleem’s motion, stating:

... [Mr. Kohler] is sterile and cannot be the father of the child; ... the plaintiff has rebutted the presumption that the child born during the marriage is a child of the marriage by clear and convincing evidence ...

The matter proceeded to trial. Following trial, the court held against Mr. Kohler on the issue of paternity, stating the following ruling from the bench:

In this case it seems to me that the paternity by estoppel doctrine serves no significant purpose. It’s undisputed, I find as a fact that it’s undisputed that the defendant [Mr. Bleem] is in fact the father, that Leslie knows he is the father, that the marriage is no longer intact, that Mr. Kohler assumed the duties initially of parenthood through a misrepresentation and [sic] acquiesced in by Mr. Bleem. This raises a question in my mind about whether Mr. Kohler should be relieved of his obligation [of] support once the true facts are known and the marriage is. broken. However, I find no precedent in the law for doing so and I feel that the present state of the law requires that the support obligation be placed on Mr. Kohler.

A final order of support was entered against Mr. Kohler on March 29, 1994. This appeal followed. Mr. Kohler raises the following issues for our review:

1. Whether the trial court erred in concluding that, under the facts of this case, it had no choice but to apply the doctrine of paternity by estoppel?
2. Whether precedent demands the application of the paternity by estoppel doctrine to a case involving a child born in wedlock, involving fraud, and where neither the best interests and welfare of the child nor public policy would be advanced by the invocation of the estoppel doctrine by the actual father or on behalf of the child?
3. Whether, under the facts of this case, the actual father was, because of his participation in fraud, estopped from invoking the doctrine of paternity by estoppel?
4. Whether the trial court erred in concluding that the appellant’s acts of equitable estoppel [sic] were adequately established as a matter of law?
5. Whether the actual father lacked standing to invoke the doctrine of paternity by estoppel and was, himself, estopped to deny the paternity of the child?

One of the strongest presumptions in the law is that a child born to a married woman is a child of the marriage. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990); Coco v. Vandergrift, 416 Pa.Super. 444, 611 A.2d 299 (1992); McCue v. McCue, 413 Pa.Super. 71, 604 A.2d 738 (1992); Donnelly v. Lindenmuth, 409 Pa.Super. 341, 597 A.2d 1234 (1991). Historically, this presumption was referred to as the “presumption of legitimacy.” Dennison v. Page, 29 Pa. 420 (1857); Cairgle v. American Radiator & S.S. Corp., 366 Pa. 249, 77 A.2d 439 (1951); Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962).

In John M., supra, 524 Pa. at 306, 571 A.2d 1380, the Pennsylvania Supreme Court reaffirmed the force of this presumption, characterizing it as “one of the strongest presumptions known to law.” Id. at 312-13, 571 A.2d at 1383 (citing Cairgle, supra, 366 Pa. 249, 77 A.2d at 439); see also Selm v. Elliott, 411 Pa.Super. 602, 602 A.2d 358 (1992). John M., 524 Pa. at 312 n. 2, 571 A.2d at 1383 n. 2. The Court also noted that since the legal distinction between “legitimate” and “illegitimate” children had been eliminated by statute, the phrase “presumption of legitimacy,” had been rendered meaningless. The Court announced, therefore, that it would no longer “use the phrase ‘presumption of legitimacy’ to describe the ‘presumption that child born to a married woman is a child of the marriage,’ and therefore of the woman’s husband.” Id. at 312 n. 2, 571 A.2d at 1384 n. 2. Following our Supreme Court’s lead, this court will refer to the presumption accordingly.

The “presumption of legitimacy” arose from the reluctance of the law to declare a child “illegitimate,” because the status “illegitimate” historically subjected a child so labelled to significant legal and social discrimination.[] [citations omitted]. In Pennsylvania, however, the General Assembly has eliminated the legal distinction (and discrimination) between “legitimate” and “illegitimate” children.[]

The strength of the presumption is grounded in the Commonwealth’s interest in protecting the family, “the basic and foundational unit of society.” Id. at 318, 571 A.2d at 1386 (citing Commonwealth ex rel. O’Brien v. O’Brien, 390 Pa. 551, 136 A.2d 451 (1957)). The presumption is, however, a rebuttable one. Traditionally, this presumption could be overcome only by proof that the husband did not have access to his wife during the period of possible conception, or by proof of the husband’s impotency or sterility. Id. at 313-15, 571 A.2d at 1384. See Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989); Commonwealth ex rel. O’Brien v. O’Brien, 390 Pa. 551, 136 A.2d 451 (1957); Cairgle, supra, 366 Pa. at 249, 77 A.2d 439; Everett v. Anglemeyer, 425 Pa.Super. 587, 625 A.2d 1252 (1993); Burston v. Dodson, 257 Pa.Super. 1, 390 A.2d 216 (1978).

At common law a child born of a married woman was conclusively presumed to be legitimate unless her husband was not within the four seas which bounded the kingdom, but later it was held that the presumption of legitimacy could be overcome if the husband and wife lived at a distance from each other so that access was very improbable. This was the rule applied in Pennsylvania in 1814. Commonwealth v. Shepherd, 6 Binney 283, 286.

Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 282-84, 184 A.2d 351, 355 (1962). Evidence offered to rebut this presumption must be clear and convincing. McCue v. McCue, 413 Pa.Super. 71, 604 A.2d 738, appeal denied, 531 Pa. 655, 613 A.2d 560 (1992).

Here, the trial court found that clear and convincing evidence had been presented with respect to Mr. Kohler’s sterility so as to rebut the presumption that Leslie was a child of the marriage. Nonetheless, the trial court applied the doctrine of paternity by estoppel, finding no precedent for precluding application of the doctrine.

The principle that a husband is estopped from denying paternity where he has accepted his wife’s child and held it out as his own emerged in Goldman, supra, 199 Pa.Super. at 274, 184 A.2d 351. There, the parties, husband and "wife, had three children born of the marriage. A divorce action was pending and wife sought support from husband for the three children. Husband filed a petition denying paternity of the two younger children and requesting that the court order blood tests. The trial court granted husband’s request and wife appealed. In discussing the applicability of the Uniform Act on Blood Tests to Determine Paternity, this court stated:

We recognize that there is something disgusting about a husband who, moved by bitterness toward his wife, suddenly questions the legitimacy of her child whom he has been accepting and recognizing as his own. Except in rare situations the rules of evidence have heretofore prevented his doing this. . By providing a new method to overcome the presumption of legitimacy, the legislature has opened avenues to a husband to question the paternity of his wife’s children which never before were available to him. We think that this right to question the paternity is not unlimited. Where the husband has accepted his wife’s child and held it out as his own over a period of time, he is estopped from denying paternity. 31 C.J.S. Estoppel § 110.

Goldman, 199 Pa.Super. at 282-83, 184 A.2d at 355 (emphasis added).

In Goldman, the husband denied paternity of the two younger children. Of these two, the first was born before the parties separated; the youngest child was conceived and born after the parties had separated. The court affirmed the trial court’s order granting husband’s request for blood tests pertaining to the paternity of both children. The court stated: “It does not appear from the record before us that the defendant is guilty of laches, nor of such conduct as would estop him from denying paternity____ He, therefore, -... is entitled to an order requiring blood grouping tests of the parties involved.” Id.

One year later, in Commonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963), this court held that where the husband had lived with his wife during the time that two children were conceived, husband was not entitled to a request for blood tests. In Weston, husband lived with his wife for several years after the children were born, accepted the children as his own during that time, and did not request blood tests until after the parties had separated and wife filed a petition for support. Id. at 556-57, 193 A.2d at 783. See also Commonwealth ex rel. Hall v. Hall, 215 Pa.Super. 24, 257 A.2d 269 (1969).

The doctrine of paternity by estoppel has also been applied in cases involving children born out of wedlock. See, e.g., Jefferson v. Perry, 432 Pa.Super. 651, 639 A.2d 830 (1994); In the Matter of Montenegro, 365 Pa.Super. 98, 528 A.2d 1381 (1987). Principles of estoppel are peculiarly suited to cases where a child is conceived out of wedlock, because in those cases, no presumptions regarding paternity apply. See Jefferson, supra, 432 Pa.Super. at 651, 639 A.2d 830; cf. Everett v. Anglemeyer, 425 Pa.Super. 587, 625 A.2d 1252 (1993). See also 23 Pa.C.S.A. § 5102(b)(2).

The interaction of the doctrine of paternity by estoppel, the presumption that a child born to a married woman is a child of the marriage, and the allegations of fraud in this case must first be explored before we can determine whether Mr. Bleem may invoke estoppel principles. First, if the matter involves a child born out of wedlock, no presumptions apply and the determination will turn on application of estoppel principles to the particular facts of the case. See In the Matter of Naja Green, 437 Pa.Super. 606, 650 A.2d 1072 (1994); Jefferson, supra, 432 Pa.Super. at 651, 639 A.2d 830; Everett, supra, 425 Pa.Super. at 587, 625 A.2d 1252; see also 23 Pa.C.S.A. § 5102(b). Second, if the matter involves a child born during wedlock, the presumption automatically applies but may be rebutted by clear and convincing evidence of non-access or impotency/sterility. Goldman, supra, 199 Pa.Super. at 274, 184 A.2d 351; Everett, supra, 425 Pa.Super. at 587, 625 A.2d 1252; McCue, supra, 413 Pa.Super. at 71, 604 A.2d 738. Additionally, application of estoppel principles may be employed to determine whether the presumption may be rebutted. If estoppel principles are applicable, the presumption will generally prevail. For example, in Jones v. Trojak, supra, 535 Pa. at 95, 634 A.2d 201, appellee Kathryn Jones filed a paternity action against appellant Joseph Trojak, alleging that Trojak was the father of Katie Jones. Katie was born while Mrs. Jones was still married to and living with William Jones. Over Trojak’s objection, the trial court ordered blood tests. The tests indicated to a 99.9% probability that Trojak was Katie’s biological father. Thereafter, the trial court entered an order allowing the blood test results to be considered in a second trial. Trojak appealed this order.

While the appeal was pending before this court, the trial court entered an order adjudicating Trojak as the child’s natural father. This court reversed and remanded and the Pennsylvania Supreme Court accepted allocatur. The Supreme Court affirmed this court’s order. Jones, 535 Pa. at 106-07, 634 A.2d at 207. The Supreme Court held that a court order requiring blood tests was subject to interlocutory review. The Court also held that there must first be a determination that the child born to a married couple is not the child of the marriage before blood tests can be ordered for a third party, and that in this case the presumption had been overcome. The trial court, therefore, had properly ordered Trojak to submit to a blood test. Jones, 535 Pa. at 100-07, 634 A.2d at 204-207. The Court stated:

We adopt the approach taken by the Superior Court in Christianson v. Ely, [390 Pa.Super. 398, 568 A.2d 961 (1990),] which mandates that before an order for a blood test is appropriate to determine paternity the actual relationship of the presumptive father and natural mother must be determined. 390 Pa.Super. 398, 409, 568 A.2d 961, 966....

Jones, 535 Pa. at 104-05, 634 A.2d at 206. The exact language used in Christianson reads:

This case must, therefore, be remanded for further evidence to be. presented to the court as to the actual relationship of the presumptive father and natural mother and as to whether or not the doctrine of estoppel applies. Only in the event that estoppel does not apply and it appears the father did not accept the child to be his own by holding it out and/or supporting the child, will the mother be permitted to proceed with her claim against [Ely] which may be' aided by use of the blood test. If there is substantial evidence to the effect that the father has denied paternity and refused to accept responsibility from the time he was reasonably aware of his non-paternity, then the rule in Goldman would apply and permit the taking of the blood test of [Ely]. Otherwise the presumption of legitimacy has not been rebutted and estoppel must be invoked to prevent the blood test with the issue of paternity settled in favor of the presumptive father.

Christianson, 390 Pa.Super. at 409-10, 568 A.2d at 966 (emphasis added).

It appears clear from the case law on these issues that estoppel principles will automatically be invoked (when operative under the facts of the case) if clear and convincing evidence has been offered to rebut the presumption that a child born during coverture is a child of the marriage. Jones, supra, 535 Pa. at 95, 634 A.2d 201; Everett, supra, 425 Pa.Super. at 587, 625 A.2d 1252; Gonzalez, supra, 245 Pa.Super. at 307, 369 A.2d 416; Weston, supra, 201 Pa.Super. at 554, 193 A.2d 782. In the more common fact situations, application of estoppel principles results in a finding that the presumption has not been rebutted.

What remains uncertain in the law, however, is the applicability of the equitable doctrine of estoppel where (1) clear and convincing evidence has been offered to rebut the presumption; (2) the party seeking to invoke estoppel in his or her favor is guilty of fraud or misrepresentation; and (3) there is no intact family. What is of significant import in our determination in this instance is this last factor. Cf. In the Matter of Naja Green, supra, 437 Pa.Super. at 606, 650 A.2d 1072 (“Public policy dictates that the parent/child bond be nurtured. We are bound to preserve that relationship where it exists.”). We take note of the suggestion that the presumption “becomes easier to rebut when the marriage is no longer intact.” Wilder, Pa. Family Law Prac. and Proc. (3rd ed.), § 27-4. See, e.g., Jones, supra, 535 Pa. at 95, 634 A.2d 201; Selm, supra, 411 Pa.Super. at 602, 602 A.2d 358. The presumption that a child born during a marriage is a child of the marriage and the doctrine of paternity by estoppel grew out of a concern for the protection of the family unit; where that unit no longer exists, it defies both logic and fairness to apply equitable principles to perpetuate a pretense. In this case, application of estoppel would punish the party that sought to do what was righteous and reward that party that has perpetrated a fraud. See B.O. v. C.O., 404 Pa.Super. 127, 130-32, 590 A.2d 313, 315 (1991) (“When an allegation of fraud is injected in a case, the whole tone and tenor of the matter changes. It opens the door to overturning settled issues and policies of the law.”). Our Supreme Court’s language in Jones, supra, 535 Pa. at 95, 634 A.2d 201, distinguishing the facts in Jones and those in John M., is instructive:

[In John M.] there is in short, a family involved ... [a] woman and a man who have married and lived together as husband and wife, giving birth to and raising four children. ... In [Jones ], however, we ... are convinced that the facts indicate that the presumptive father and mother repudiated their marriage vows long ago. Additionally, we have evidence that the presumptive father did not accept the child as his own. The circumstances before us, as found by the trial court, are that the presumptive father has never financially or emotionally supported Katie. Moreover, the trial court found that during the time Katie was conceived, [Mrs.] Jones was not sexually involved with the presumptive father because he was impotent, and this testimony was not rebutted by either the presumptive father or the putative father. Thus, we agree with the Superior Court that there being no intact family considerations present, a determination regarding Trojak’s paternity is necessary to resolve the child support claim made by Jones.

Jones, 535 Pa. at 106-07, 634 A.2d at 207 (emphasis added).

In this case, there are no intact family considerations. The presumption that Leslie is a child of the marriage has been overcome by clear and convincing evidence of Mr. Kohler’s vasectomy and a subsequent test which revealed no spermatozoa in his semen. See Goldman, supra, 199 Pa.Super. at 374, 184 A.2d 351; see also John M., supra, 524 Pa. at 306, 571 A.2d 1380 (presumption can be overcome only by proof of facts establishing nonaccess or impotency). Moreover, Leslie has established a relationship with Mr. Bleem and apparently has not been traumatized by the knowledge that he is in fact her father. Blood tests, which were conclusive as to Mr. Bleem’s paternity, were, therefore, a relevant fact. See John M., supra; cf. Scott v. Mershon, 394 Pa.Super. 411, 576 A.2d 67 (1990).

The trial court in this case, acknowledging that clear and convincing evidence of Mr. Kohler’s sterility had rebutted the presumption, and acknowledging Leslie’s true paternity, believed it was compelled to apply the estoppel doctrine due to Mr. Kohler’s actions during the first few years of Leslie’s life. Ostensibly, this comported with the law of the Commonwealth.

What the trial court neglected to consider, however, is the role of estoppel principles in a factual situation such as this, that is, one involving fraud and misrepresentation and the absence of an intact family. The confusion in this case arises from the fact that Mr. Kohler did accept Leslie as his daughter, knowing that she was not his child. This brings into play the paternity by estoppel doctrine. Mr. Kohler, however, was operating under the misrepresentation that an “unknown” man had fathered the child. But for this fact, Mr. Kohler indicated that he would have left his wife immediately. In fact, Mr. Kohler did so when he was told that Mr. Bleem was Leslie’s natural father.

In Gulla v. Fitzpatrick, 408 Pa.Super. 269, 596 A.2d 851 (1991), this court explained that the doctrine of equitable estoppel is aimed at “achieving fairness between the parents by holding them, both mother and father, to their prior conduct regarding the paternity of the child.” Id. at 279, 596 A.2d at 856. “Every such case must be decided after a close analysis of all of the facts and circumstances[.]” Id. The Gulla court emphasized that the proper focus is on the relationship between father and child. Id.

Despite the subterfuge on the part of Mrs. Kohler and Mr. Bleem, both were aware of the child’s true paternity. Although for six years Mr. Kohler was unaware that Mr. Bleem was Leslie’s father, he knew that he had not fathered the child. Furthermore, when he learned of the child’s true parentage, Mr. Kohler left the marital home. Compare Jones, supra, 535 Pa. 95, 634 A.2d 201 (presumption that child was a child of the marriage was overcome; undisputed evidence indicated that during time of conception mother was not sexually involved with presumptive father, and presumptive father did not accept child as his own since he had never financially or emotionally supported the child) with Common wealth ex rel. Hall v. Hall, 215 Pa.Super. 24, 257 A.2d 269 (1969) (where child was conceived and born while husband and wife were living together and where, upon separation, husband acknowledged the child as his daughter, provided for her future support, and made extensive arrangements for visitation, husband was estopped from denying paternity). Additionally, as stated above, the record supports a finding that the child was not adversely affected upon learning that Mr. Bleem was her father. In fact, the record indicates that Leslie was pleased to learn that Mr. Bleem was her father and referred to him as “my dad.” Jones, supra, 535 Pa. at 95, 634 A.2d 201; Gulla, supra, 408 Pa.Super. at 269, 596 A.2d 851. Cf. Hall, 215 Pa.Super. at 34-35, 257 A.2d at 274 (Hoffman, J., dissenting) (“Proof of the child’s paternity, which is the basis for a support order, is not necessarily made more difficult by the passage of time during which the husband lived at home.”).

We conclude, therefore, that the presumption that Mr. Kohler was Leslie’s father was rebutted by clear and convincing evidence and that, under these circumstances, Mr. Bleem is precluded from utilizing equitable principles. Application of estoppel is inappropriate in this case. The trial court, therefore, erred in allowing Mr. Bleem to invoke the doctrine of estoppel to preclude Mr. Kohler’s denial of paternity.

Reversed.

TAMILIA, J., files a Dissenting Opinion.

TAMILIA, Judge,

dissenting:

I respectfully dissent. The long and learned Opinion by the majority ignores the simple principle of established law that estoppel applies in cases such as this. The majority would introduce a variant of the discovery rule by alleging the legal father in this case, Mr. Kohler, may renounce paternity because the biological father is “A” instead of “B”. The estoppel doctrine protects both the intact family, which this was during and many years following the birth of the child, and the child, who is now without a legal father by pronouncement of this Court.

There are several means by which the law establishes paternity, irrespective of biological conception. Examples are adoption, acknowledgement, marriage to the mother and acceptance of the child, presumption of legitimacy by marriage during conception and, as here, by estoppel despite knowledge of inability to conceive and that the husband is not the father of the child. The majority introduces a new variant which destabilizes what has been determined by policy to be an area which should be protected. The trial court is correct in its decision and there is no statute or case law which justifies reversal.

The starting point of this case is presumption of legitimacy (now referred to as presumption that child born to a married woman is the child of the woman’s husband). John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990). This presumption is rebuttable by showing non-access or inability on the part of the husband to conceive. Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). However, as here, when the parties, at the time of conception, knew the husband could not be the father, rebutting criteria are not implicated and are irrelevant to the consideration of paternity as a legal matter. It has long been the law that when a husband is aware he is not the father of a child born during marriage, but takes on the role of father and remains in the marriage in that role, a later decision to reject his paternity will not be recognized by the courts and he is estopped from denying paternity. John M., supra, 524 Pa. at 306, 571 A.2d 1380. In other words, even if, in fact, the presumption is rebuttable for any reason, under principles wherein estoppel applies, the presumption may not be rebutted. A similar rule applies to a putative father who marries the mother and legitimatizes the child. Matter of Montenegro, 365 Pa.Super. 98, 528 A.2d 1381 (1987).

The results of a blood test proving the putative father not to be the biological father are not relevant because the husband is estopped from denying paternity. Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990). In Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988), this Court held that a mother was estopped from denying the husband’s paternity, after separation, when she permitted him to maintain the child and assume parental duties during the period the family was intact. The law treats both parents equally when the issue is rebuttal evidence and estoppel thereof.

Two elements in Seger are similar to the present case. The parent assumed parental duties during the marriage and there was a rejection or repudiation of paternity by one of the parties upon separation. Also, in each case there was concealment of the true nature of the paternity. In Seger, we stated: “It has been stated in numerous cases that a father is es-topped from denying paternity by long delay in raising the issue at all (assuming he was aware of non-paternity) and by his acceptance and support of the child during that time.” Id. at 397, 547 A.2d at 427 (citations omitted). In Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993), our Supreme Court held the presumptive father will not be estopped from challenging paternity when he failed to accept the child as his own by holding it out as such and/or supporting the child. Estoppel does apply, however, when the father has accepted the child and treated him as his own and he may not, upon separation, reject paternity and demand a blood test to rebut the presumption. This view was adopted from Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990), where this Court held that a mother could not force a putative father to submit to a blood test to rebut paternity of a child conceived and born while the mother was married to and living with the husband absent proof that the husband had denied paternity and refused responsibility from the time he was reasonably aware of non-paternity. In this case, the husband was absolutely aware of non-paternity from the time of pregnancy and only seven years later, after separation, did he reject responsibility. No clearer case for estoppel according to legal precedent can be established. The fact that the appellant became aware of the true identity of the alleged father is irrelevant to the issue of estoppel. It is knowledge of and acceptance of non-paternity that creates the estoppel; lack of knowledge as to the true identity of the putative father is irrelevant. Husband cannot choose when to repudiate his prior acceptance of paternity nor can he make such a repudiation upon a subsequent determination of the identity of the biological father. The doctrine of estoppel as to the issue of paternity cannot be so qualified as to give it questionable validity and applicability based on an unknown and immaterial variant. Should this exception be engrafted upon the principle of estoppel, it is not difficult to visualize other post-estoppel renunciations based on race or ethnic background of the biological father, possession of a genetic defect giving rise to subsequent illness and medical expenses, or any of a myriad of other subjectively conceived reasons. The essence of the doctrine is knowledge of non-paternity and acceptance of the status of parent-child relationship. After six years in which the family remained intact and the child was nurtured in an intact family setting with future benefits to the child to be derived from the continuing status, the knowledgeable adults now may not disturb that relationship to the possible detriment of the innocent child. This finding and that of Christianson, supra, 408 Pa.Super. at 269, 596 A.2d 851, follow in a consistent, straight line from Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962) (estoppel applies to grant of blood test where child born during coverture is accepted by defendant as his own), and Commonwealth v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963) (when a child is born during coverture and father has accepted the child prior to filing a petition for blood test, he should be refused a petition for blood test). The majority quotes at length from the cases involving estoppel and presumption of legitimacy but attempts to circumvent the public policy upon which those cases are based. The spurious issue of fraud as to the identity of the actual father of the child is not a factor which can undermine the policy decision that a child born in an intact family, with knowledge by the husband that the biological father is another person, followed by acceptance by the husband, must be deemed the legitimate child of that family. That policy decision is a statement that society values more highly the preservation of intact families and that children shall be legitimate than it does the privacy and other interests which might subsequently be alleged by the parents. The legislature established several means by which a child may be legitimatized, aside' from birth during coverture. Paternity may be acknowledged in writing and by filing a document with the Department of Health, pursuant to 23 Pa.C.S. § 5103, Acknowledgement and claim of paternity. More to the point, “paternity by estoppel” provisions have been codified by the General Assembly in 23 Pa.C.S. § 5102 as follows:

§ 5102. Children declared to be legitimate
(a) General rule. — All children shall be legitimate. irrespective of the marital status of their parents, and, in every case where children are born out of wedlock, they shall enjoy all the rights and privileges as if they had been born during the wedlock of their parents except as otherwise provided in Title 20 (relating to decedents, estates and fiduciaries).
(b) Determination of paternity. — For purposes of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined by any one of the following ways:
(1) If the parents of a child born out of wedlock have married each other.
(2) If, during the lifetime of the child, it is determined by clear and convincing evidence that the father openly holds out the child to be his and either receives the child into his home or provides support for the child.
(3) If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

(Emphasis added.)

There is absolutely no question that the child in this case was accepted and held out by appellant as his own, and without qualification obtains the statutory protection of legitimacy established by the legislature, pursuant to section 5102(b)(2). It is undeniable that public policy favors legitimacy and the actions of the parents, even if misguided, which fulfill the statutory requirements establishing the child’s legitimacy and the parents’ obligation may not later be repudiated because of a mistake of fact or even a misrepresentation that does not go to the essentials of the undertaking. Here, the essential ingredient was the assumption of the obligation of paternity with knowledge that the appellant was not and could not be the child’s parent. The child became the true beneficiary of this acceptance and the law imposes a continuing irrevocable obligation (short of termination of parental rights) on the parent assuming the obligation.

In John M., supra, 524 Pa. at 306, 571 A.2d 1380, the Pennsylvania Supreme Court, in reviewing the above statutory provisions, stated, in adopting language from Montenegro, supra, 365 Pa.Super. at 98, 528 A.2d 1381, “since the requirements of the law had been met to establish paternity, the father was estopped from denying paternity five years later.” John M., supra at 571 A.2d at 1387.

A fair reading of the cases establishing estoppel leads to the conclusion that the presumption must be rebutted at or near the time of the child’s birth. The concept of an intact family which the law seeks to protect is the family as it exists at the time of conception or birth of the child (not at time of separation), and if the presumption is not rebutted at that time or the duty is legally assumed at that time, estoppel applies. The father is estopped from rebutting the presumption for any reason, whether it be because of the father’s sterility, nonaccess, fraud as to identity of the biological father or any other proposed rationale. The presumption by reason of estoppel becomes irrebuttable even as to an alleged fraud as to identity of the true biological father. By its very nature, contested issues of paternity invariably involve secretiveness, denial, misrepresentation and fraud. To open the door to overcome the estoppel doctrine because of the kind of fraud alleged in this ease would be to destabilize the public policy so laboriously developed over centuries down to the present time. As a matter of law and public policy, this type of fraud is vitiated by the acknowledgement of paternal responsibility. The variables of human nature, emotion and relationship are such that it is impossible to say six or seven years after acceptance, and when the relationship had soured, what would have been the appellant’s reaction had he known the true identity of the biological father. With the wide range of activities engaged in today via artificial insemination, in vitro fertilization, surrogate parentage, and almost inconceivable matches resulting in children to parents who cannot conceive together, even this relationship might have been accepted by a husband who desired to preserve a marriage with a wife who desired to have a child which appellant could not produce. The state of confusion that exists in marital and nonmarital relationships in today’s society requires that the fullest protection possible be provided to the children created through these relationships.

I believe the trial court must be affirmed.

      . Throughout history, illegitimate children were precluded from, among other legal rights, entering certain professions. The Book of Deuteronomy states:
      A bastard shall not enter into the congregation of the Lord; even to his tenth generation shall he not enter into the congregation of the Lord.
      Deut. 23:2.
      At common law, a child born out of wedlock, referred to as a bastard, was considered a nonperson and was not entitled to support from the father or inheritance from either parent. 1 W. Blackstone, Commentaries 459; Davis v. Houston, 2 Yeates 280 (1878).

      . The General Assembly has declared all children to be legitimate:
      All children shall be legitimate irrespective of the marital status of their parents, and in every case where children are born out of wedlock, they shall enjoy all the rights and privileges as if they had been born during the wedlock of their parents except as otherwise provided in Title 20 (relating to decedents, estates and fiduciaries).

        23 Pa.C.S. § 5102(a).

      . At common law, neither the husband nor the wife was permitted to "bastardize” his or her child, and thus neither could testify as to non-access. This rule originated in dictum advanced by Lord Mansfield in Goodright v. Moss, 2 Cowp. 591 (1771), and was followed in the Commonwealth for some time. See Commonwealth ex rel. Goldman v. Goldman, supra, and Commonwealth v. Carrasquilla, 191 Pa.Super. 14, 155 A.2d 473 (1959). The rule has since been abandoned and both husband and wife are competent to testify to this issue. See McCue v. McCue, 413 Pa.Super. 71, 604 A.2d 738, appeal denied, 531 Pa. 655, 613 A.2d 560 (1992); Commonwealth ex rel. Savruk v. Derby, 235 Pa.Super. 560, 344 A.2d 624 (1975).

      . Additionally, the presumption that a child born to a married woman is a child of the marriage is overcome if blood tests show that the woman's husband is not the father of the child. See 23 Pa.C.S.A. § 5104(g). However, this statute is somewhat anomalous in light of the Pennsylvania Supreme Court’s recent announcement in Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993), that a court "may order blood tests to determine paternity only when the presumption of paternity has been-overcome.” Id. at 105, 634 A.2d at 206, (citing John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380, cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990)).

      . July 13, 1961, P.L. 587, 28 P.S. § 307.1 et seq., 1976, July 9, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. §§ 6131-6137, December 19, 1990, P.L. 1240, No. 206, § 2, effective in 60 days, 23 Pa.C.S.A. § 5104.

      . Judge Montgomery filed a dissenting opinion, in which Judge Watkins joined. In his dissent, Judge Montgomery opined that he would not find the Uniform Act on Blood Tests to Determine Paternity applicable to challenge the paternity of a child born during wedlock. Judge Montgomery stated: "Families may live together for many years before this charge [of illegitimacy] is asserted. This is clearly against all reason, common sense, and morals, in the light of the sanctity which we have given to the family unit in our way of life.” Goldman, 199 Pa.Super. at 288, 184 A.2d at 358 (Montgomery, J., dissenting).

      . The General Assembly has codified the principles of paternity by estoppel in cases involving children born out of wedlock. See 23 Pa.C.S.A. § 5102(b)(2). The relevant section provides:
      (b) For purposes of prescribed benefits to children born out of wedlock by, from and through the father, paternity shall be determined by any one of the following' ways:
      (2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds out the child to be his and provides support for the child which shall be determined by clear and convincing evidence.
      23 Pa.C.S.A. § 5102(b).

      . There was evidence that Trojak admitted Mrs. Jones told him that she was not having sexual relations with her husband at or around the time Katie was conceived; that both Trojak and Mrs. Jones admitted to sexual relations for one to two years prior to conception and during the time of conception; that Trojak made weekly support payments for approximately two years; and, that Trojak paid other expenses "for Katie.” Jones, 535 Pa. at 104 n. 7, 634 A.2d at 206 n. 7.

      . Although Mr. Bleem contends that he was not a party to Mrs. Kohler’s misrepresentation to her husband that the father of the child was a man from Buffalo, Mr. Bleem acknowledged the fraud, admitted an intimate relationship with Mrs. Kohler during the time of conception, and was aware of Mrs. Kohler’s confidence that he was the child’s father. He also admitted his paternity to Mrs. Kohler and Mrs. Kohler’s sister. Mr. Bleem did nothing to dispel the misrepresentation upon which Mr. Kohler relied. See Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 108, 464 A.2d 1243, 1252 (1983).

      . In the instant case, the blood tests have already been performed and this court is not aware of a previous appeal for review of that interlocutory order. This does not, however, preclude consideration or application of equitable estoppel principles. The estoppel doctrine is equally applicable in cases arising in the context of requests for permission to take blood tests as it is in cases such this, where blood tests have already been taken. See Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 310-12, 369 A.2d 416, 418 (1976).


source: Caselaw Access Project

author: BECK, Judge.

license: Public Domain

text:
    654 A.2d 580
    COMMONWEALTH of Pennsylvania v. Herman Albert DONTON, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1994.
    Filed Feb. 8, 1995.

      David R. Eshelman, Reading, for appellant.
    Iva C. Dougherty, Asst. Dist. Atty., Reading, for Com. appellee.
    Before BECK, HUDOCK and BROSKY, JJ.
   BECK, Judge.

This case requires us to address the inchoate crime of attempt, the corpus delicti rule, and the authority of local police to cross jurisdictional lines while in pursuit of suspects. We also consider, with respect to appellant’s sentence, the merger doctrine. After careful analysis and adherence to case law, we affirm appellant’s convictions but vacate the judgments of sentence and remand for resentencing.

The testimony at trial revealed the following. In December, 1992, Diana Donton separated from her husband, appellant Herman Donton, after over twenty years of marriage. She testified that she left her husband due to his verbal abuse and his excessive drinking. Diana left the home she shared with appellant in Pike County and began living with her mother in Berks County. The couple’s son, David Donton, remained living with his father. In. early March, 1993, David returned home from a visit with his mother to find his father sitting in the kitchen drinking beer. Appellant asked David to retrieve ammunition for his (appellant’s) .30-06 rifle. David complied with the request and watched as his father loaded the rifle. Appellant explained to David that he was going to Reading to “take her out.” Because appellant previously had spoken to David on this subject, David understood appellant to mean that he intended to shoot his wife.

David started to cry and to plead with his father to “calm down” and refrain from taking the action he planned. Appellant responded that he “had to do it” and that David should “be a man about it.” Appellant also stated that if he couldn’t have his wife, her mother wasn’t going to have her either. Appellant then left the residence to get gas in his car and upon returning, with the loaded rifle strapped to his shoulder, said to David “This is good-bye” and hugged his son. At some point in this exchange, David told his father to insure that he (David) was “taken care of’ because at the very least, appellant would end up in jail. Appellant responded that David would be provided for and that he would be permitted to stay at the family residence and receive any paychecks to which appellant was entitled. Appellant then left.

After appellant drove away, David began to read several letters appellant had left behind on the mantel and the kitchen table. The letters on the mantel were written two weeks earlier, the letters on the table were written that day. One letter was addressed to appellant’s parents asking forgiveness for “what he had done” and explaining that the “only way to have [Diana] forever is [to] do what I’ve done.” The letter farther stated:

If I can’t have her neither can they or anyone else — she belongs to me forever now.... Well her mother should be happy that I’m gone. But her daughter is with me not her. I hope God forgives me the most and understands what I have done is out of love for her to be with her for eternity and let us be together and not send me to hell for this.... Well mom it’s time to go I hope to see you up there if God forgives me.

Appellant wrote two other letters which dealt with his property and estate. These letters were dated March 6,1993, the day appellant left his home with a loaded rifle. One letter instructed that all paychecks and income tax checks due to appellant were to go to David. The same letter gave power of attorney to David and requested that David keep appellant’s dogs. It farther explained that David was not responsible for “what appellant was doing” and that David should be permitted to “get the gun back.” The other letter was a will that left everything to David. It was written, appellant described, “in his dying blood,” and requested that “mother and father [be] buried together in one coffin if possible.” The fourth letter was written to David, asking him to handle all the funeral arrangements. In the letter, appellant reiterated his request to “have us buried in the same coffin.”

After reading the letters, David contacted his paternal grandfather and told him about his conversation with appellant and the letters he found. The grandfather ordered David to call the police immediately. David called the state police, gave the troopers the letters and told them that his father, as well as the rifle and its ammunition, were gone from the house. David described the car appellant was driving and the route he likely took to reach Berks County. He gave the troopers two addresses, his maternal grandmother’s address, where his mother was residing, and his uncle’s address, where his grandparents and mother spent every weekend.

In response, the state police sent out a Teletype message to local jurisdictions in the area David described. The message warned law enforcement personnel of appellant’s plans. In addition, a trooper contacted Diana Donton at her brother’s home and told her to contact local police. Diana’s sister-in-law called the police, and Chief Roy Brennan of the South Heidelberg Police responded to the call. Upon arrival at the house, Chief Brennan called the trooper who had contacted Diana and learned the specifics of the case, i.e., the substance of the letters, the description of appellant and his vehicle, and the fact that appellant was armed. The Chief advised the people in the house (at the time there were six adults and four children in the home) to turn off the outside lights and to stay away from the windows.

The Chief then went outside and took up a position at the rear of the residence in the event that appellant came from the wooded area in the back. Another officer, Douglas Goeltz, stationed himself at the entry door of the home in order to observe appellant should he approach from the street. Soon the officers observed a vehicle, matching the description given to them, driving slowly past the house. Brennan told Goeltz to stay at the residence while he confirmed the identity of the vehicle. Brennan then got in his patrol car and attempted to follow the car, but lost sight of it. Upon returning to the area, Brennan again saw the vehicle driving very slowly by the residence, and its driver looking toward the home. Convinced that appellant was the person he was seeking, Brennan called out to Goeltz as he passed the home and requested that Goeltz “back him up” so that they could apprehend appellant.

Brennan did not stop appellant in front of the house because, knowing appellant was armed, he feared for the safety of the children and adults inside. He waited for Goeltz’s assistance before stopping appellant. After appellant drove slowly by the house the second time, he crossed a small bridge. He then turned around in a residential driveway just beyond the bridge and began to drive back toward the residence. At that point, Brennan and Goeltz blocked his path, put on their patrol car lights and commanded him to stop. As Brennan approached the car from the driver’s side, Goeltz approached from the passenger’s side. When he saw appellant reach for his weapon, Goeltz reached into the vehicle and grabbed the loaded .30-06 rifle that was lying on the front seat next to appellant. The weapon was equipped with a scope that allowed appellant to shoot his target from a distance.

Appellant was arrested and charged with attempted murder, aggravated assault, possessing an instrument of crime and other related crimes. At trial, a friend of appellant’s who lives in Berks County testified that appellant left his hunting license at the friend’s house over the Christmas holidays. He stated that appellant was scheduled to visit him the weekend he was arrested in order for the friend to fix appellant’s rifle so that the two could go hunting. Appellant also testified at trial. He claimed that he was driving by his brother-in-law’s house on March 6th in order to visit another relative who lived on the same street, that he then intended to visit his friend who would fix his rifle, and that he and the friend planned to hunt that weekend. He also testified that he had left his hunting license at the friend’s house months earlier. On rebuttal, David testified that while his father was awaiting trial, he contacted his son and requested that David deliver his (appellant’s) hunting license to the friend who lived in Berks County.

Appellant described the letters discovered by his son as notes to himself, never meant for anyone else to read, written while he was depressed over his failing marriage. He explained that the phrases he used regarding “things being over” or “saying good-bye” referred to his relationship with his wife and his plan to move away from the area. He also testified that he at one point considered committing suicide but denied ever intending to kill his wife.

The jury returned verdicts of guilty on all counts and appellant filed a timely appeal raising several trial errors. His first challenge concerns the attempted murder and aggravated assault convictions. As appellant properly notes, both crimes- require that appellant, with the requisite intent to commit the offense, take a substantial step toward its commission.

Originally, conviction for criminal attempt required proof that a defendant committed an overt act with the intent of completing a crime, but fell short of actually completing it. See Commonwealth v. McCloskey, 234 Pa.Super. 577, 341 A.2d 500, 501 (1975). In 1972, with the enactment of the crimes code, the legislature broadened the definition of attempt by defining it as follows:

A person commits an attempt when, with the intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.

18 Pa.C.S.A. § 901(a). This definition has been interpreted by this court as an expansion of the crime of attempt in that it no longer concentrates on the acts that remain to be done by the defendant but instead focuses on the acts the defendant has completed. See Commonwealth v. Gilliam, 273 Pa.Super. 586, 417 A.2d 1203, 1205 (1980). In deciding whether the evidence presented at trial was sufficient to make out a case of attempt, we view the entirety of the evidence in the light most favorable to the Commonwealth and consider whether the fact finder could conclude that a substantial step toward a specific crime has been taken. See id.; Commonwealth v. Melnyczenko, 422 Pa.Super. 363, 619 A.2d 719 (1992), alloc. denied, 536 Pa. 628, 637 A.2d 288 (1993).

The Gilliam and Melnyczenko cases are instructive on evaluating the substantial step requirement. In Gilliam, the appellant, an inmate, was convicted of criminal attempt to escape. Evidence revealed that the bars on the window of the Gilliam’s cell had been cut and that he was in possession of a pair of visegrips and two knotted extension cords attached to a hook. We found that it “was of no consequence that appellant was not actually in the process of elopement when arrested” and held that the evidence, taken as a whole, constituted a substantial step toward escape. See Gilliam, supra 273 Pa.Super. at 588-590, 417 A.2d at 1205 (appellant’s acts of manufacturing and assembling the paraphernalia necessary for escape, as well as cutting through the bars, coupled with evidence from which the jury could infer intent to escape, was sufficient).

In Melnyczenko, we addressed the issue of whether a person can be convicted of attempted burglary in the absence of proof of a physical attempt to enter a structure. The appellant in that case was observed driving twenty miles from his home to a residential neighborhood where he parked his car. Dressed in dark clothing, he then began walking into the rear yards of the houses. In his possession, police found a heavy gauge screwdriver, a pry bar, two flashlights, a knit cap, and a pair of gloves.

Despite the lack of evidence of an attempted break-in of the houses, or any evidence of tampering, we affirmed the conviction and refused to hold that a defendant cannot be convicted of attempted burglary until he physically tampers with a building. We found that:

[T]he evidence ... taken in its entirety warrants a conclusion that appellant was reconnoitering the area both with the intent to burglarize a residence and with sufficient means to carry out his intent. With those actions, appellant took a substantial step toward commission of the crime of burglary.

Melnyczenko, 422 Pa.Super. at 367, 619 A.2d at 721.

The facts of the instant case are far more compelling than Melnyczenko and present sufficient evidence of a substantial step on appellant’s part both to do serious bodily injury to his wife and to cause her death. Appellant’s statements to his son, as well as his letters, show a clear intent to kill Diana Donton. Appellant’s acts of loading his gun, which was equipped with a scope, and then driving ninety miles to the house where his estranged wife was staying, with his weapon in easy reach, clearly constitute a substantial step toward the commission of those crimes. Like the Melnyczenko case, appellant was apprehended while reconnoitering the area with both the intent to kill his wife and sufficient means to carry out his intent. For the Commonwealth to prove its case, it need not establish that appellant fired a shot at his wife, or even aimed the gun at her, before he was apprehended. When evaluated under settled principles of law, the facts of this case amply support the attempt convictions for murder and aggravated assault. Indeed, they present an even stronger case than that presented in Melnyczenko.

Appellant next argues that the only evidence of a crime in this case is contained in the substance of his letters and statements to his son David. He claims that these admissions cannot be the basis of a conviction since that would violate the rule of corpus delicti.

Clearly, “a criminal conviction may not be based on the extra-judicial confession or admission of the defendant unless it is corroborated by independent evidence establishing the corpus delicti.” Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258, 274 (1974). The corpus delicti rule is a rule of evidence rooted in the reluctance of our system of justice to convict a person based on his or her statements alone. Commonwealth v. Buck, 426 Pa.Super. 26, 626 A.2d 176, 177 (1993). The rule provides that despite the inculpatory nature of a defendant’s extra-judicial statements, a case may not go to the fact finder where independent evidence does not suggest that a crime has been committed. However, the Commonwealth is not required to prove the existence of the crime beyond a reasonable doubt before introducing an extra-judicial admission. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818, 823 (1989) (citing Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980)).

In the instant case, the Commonwealth offered independent proof of the commission of a crime. Indeed, the same evidence which constituted the substantial step necessary for the attempt convictions is the evidence which “suggests that a crime has been committed.” The evidence established that appellant, armed with a loaded rifle equipped with, a scope, drove some ninety miles to another county where his estranged wife (who had recently ended their relationship) was located, arrived at the home and began his “surveillance” of the residence with his weapon by his side. While this evidence may not be sufficient to convict appellant of the crimes for which he was convicted, such is not the burden of the Commpnwealth in establishing the corpus delicti. All that is required is independent proof suggesting the commission of a crime. See Edwards, supra.

We also find compelling the Commonwealth’s additional argument supporting the existence of the corpus delicti. The law is clear that “where two crimes are closely related and have arisen out of the same transaction, the establishment of the corpus delicti for one of them is sufficient to permit receipt of the defendant’s admission or confession even though it implicates him in the other crime as well.” Commonwealth v. DiSabatino, 399 Pa.Super. 1, 581 A.2d 645, 647 (1990). The prosecution plainly established the corpus delicti for the crime of carrying a loaded weapon in violation of 18 Pa.C.S.A. § 6106.1. Appellant’s admissions to his son, and those in his letters, explained his intentions to use the weapon on that night. The violation of § 6106.1 was closely related to appellant’s plan to kill his wife and certainly arose out of the same transaction. See DiSabatino, supra. We find no violation of the corpus delicti rule.

Appellant next challenges the trial court’s refusal to suppress the weapon and ammunition found in his car and the statements he made to police after his arrest. He claims that the police had no authority to stop him because they lacked probable cause and were outside their jurisdiction at the time of the stop. Apparently, the Berks County residence which Diana Donton was visiting is quite close to the Lancaster County line, so that when appellant crossed the bridge and turned around in a neighboring driveway, he entered Lancaster County. It was at this point that Chief Brennan and Officer Goeltz made the arrest.

Appellant relies on the Statewide Municipal Police Jurisdiction statute, 42 Pa.C.S.A. § 8953, which provides that an officer shall have the power and authority to enforce the law beyond the limits of his primary jurisdiction where:

[T]he officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the. commission of the offense.

42 Pa.C.S.A. § 8953(a)(2). This provision recently was addressed by our supreme court in Commonwealth v. McCandless, 538 Pa. 286, 648 A.2d 309 (1994). The McCandless court held that § 8953 requires a law enforcement officer to have probable cause prior to entering a neighboring jurisdiction. Conduct which raises the officer’s suspicions and prompts investigation is not enough. Id., at 289, 648 A.2d at 311.

We conclude that the officers here had probable cause when they followed appellant into Lancaster County and effectuated his arrest there. On the night in question, police spoke directly with state troopers in Pike County who informed them that appellant had left the area approximately one and one half hours earlier and was headed toward a Berks County address with a loaded rifle intending to kill his estranged wife. Chief Brennan learned the make, model, and color of the car appellant was driving as well as a partial registration and an identifying sticker on the rear bumper. He also was told the type of weapon appellant was carrying. The Chief testified that he was familiar with the high-powered rifle and had handled one previously.

At approximately the time it would take one to travel from Pike County to Berks County, the officers observed a car matching the description driving slowly by the house which Diana Donton was visiting. In an attempt to identify the vehicle, one of the officers followed the car but lost sight of it. The car soon returned and again drove slowly by the residence, its driver looking into the house. It travelled across a small bridge some 1500 feet across the county line, turned around in a neighbor’s driveway and headed back toward the home of Diana Donton’s brother. The officers continued to pursue the vehicle, but decided not to stop it in front of the house, fearing for the safety of the adults and children inside. At a safe location nearby the home, the officers ordered appellant to stop his car and then arrested him.

We believe these facts establish probable cause. Police had information from another law enforcement agency that appellant was en route to Berks County to attempt to murder his wife. As predicted, appellant appeared on the street where his wife was staying. The officers’ positive identification of the vehicle, appellant’s peculiar behavior and all the other facts of which the officers were aware gave them probable cause to pursue and arrest appellant. These factors were observed while the officers were within their primary jurisdiction. Further, their decision to stop appellant just outside the county line was a strategic and appropriate one. We conclude that the officers’ actions were in accordance McCandless and, therefore, find no error in the court’s refusal to suppress.

Appellant’s final claims concern his sentence. For his convictions of attempted murder and aggravated assault, appellant received consecutive sentences. He argues that these charges should merge for purposes of sentencing. At the time of sentencing, the controlling case on this issue was Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992), alloc. granted, 535 Pa. 629, 631 A.2d 1003 (1993). The superior court, in a divided en banc opinion, held that the crimes of attempted murder and aggravated assault require different mental states and therefore do not merge for sentencing purposes. Id., 416 Pa.Super at 220-25, 610 A.2d at 1051-53. Since the filing of briefs and argument in this case, the Pennsylvania Supreme Court decided Anderson and reversed the majority of the superior court. See Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994). The court held:

The act necessary to establish the offense of attempted murder — a substantial step towards an intentional killing— includes, indeed coincides with, the same act which was necessary to establish the offense of aggravated assault, namely, the infliction of serious bodily injury. Likewise, the intent necessary to establish the offense of attempted murder — specific intent to kill — is greater than and necessarily includes the intentional, knowing, or reckless infliction of serious bodily injury. It is tautologous that one cannot kill without inflicting serious bodily injury. Inasmuch as aggravated assault, the lesser offense, contains some but not all the elements of the greater offense, attempted murder, the offenses merge for purposes of sentencing.

Id., at 582, 650 A.2d at 24. Because the trial court did not have the benefit of the supreme court’s opinion in Anderson at the time of sentencing, it properly followed the existing law with respect to this issue. However, appellant’s preservation of the issue and the subsequent change in law require that we vacate the judgments of sentence and remand for resentencing in accordance with the current law. As a result of the remand, appellant’s challenges to the discretionary aspects of his sentence need not be addressed.

Judgments of sentence vacated; matter remanded for re-sentencing. Jurisdiction relinquished.

BROSKY, J., concurs in the result.

      . Obviously, appellant was convicted of the "attempt variety of aggravated assault.” The statute prohibits the attempt to cause serious bodily injury to another or the causing of such injury. See 18 Pa.C.S.A. § 2702(a)(1).

      . In finding that suppression was not appropriate, the trial court relied on Commonwealth v. Montgomery, 513 Pa. 138, 518 A.2d 1197 (1986), cert. denied, 480 U.S. 935, 107 S.Ct. 1579, 94 L.Ed.2d 769 (1987). The Montgomery court interpreted 42 Pa.C.S.A. § 8901, Intra-State Hot Pursuit. The court held that pursuant to § 8901, probable cause to arrest was not required before a pursuing officer crossed his jurisdictional boundary. Id., 513 Pa. at 143-44, 518 A.2d at 1200. Section 8901 was repealed in 1982 and replaced with § 8953(a)(2), the provision addressed by McCandless.

      Because we can affirm a trial court’s proper decision even if its reasoning was erroneous, we affirm the ruling of the suppression court here based on our reasoning above. See Commonwealth v. Harper, 416 Pa.Super. 608, 611 A.2d 1211, 1213 (1992) (appellate court has the power to affirm any ruling of the trial court despite its erroneous basis, as long as the ruling is justified by other reasons).


author: HESTER, Judge:

text:
    654 A.2d 587
    COMMONWEALTH of Pennsylvania, Appellant, v. Charles AVONDET.
    Superior Court of Pennsylvania.
    Submitted Dec. 12, 1994.
    Filed Feb. 14, 1995.

      J. Karen Arnold, Asst. Dist. Atty., Bellefonte, for Commonwealth, appellant.
    Joseph L. Amendola, State College, for appellee.
    Before WIEAND, HUDOCK and HESTER, JJ.
   HESTER, Judge:

This is a Commonwealth appeal from the May 17, 1994 order suppressing certain statements made by appellee at the time of his arrest. We reverse and remand.

Initially, we examine the relevant standard of review: [WJhen reviewing the Commonwealth’s appeal from the decision of a suppression court, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as á whole remains uncontradicted. Commonwealth v. Elliot, 416 Pa.Super. 499, 611 A.2d 727 (1992). When ,the evidence supports the trial court’s findings of fact, we are bound by such findings, and this Court may reverse only when the legal conclusions drawn from these facts are erroneous. Id.

Commonwealth v. Baer, 439 Pa.Super. 437, 654 A.2d 1058 (1994).

The uncontradicted evidence of the sole witness at the March 4, 1994 suppression hearing, Pennsylvania State Police Trooper Robert Snook, was as follows. On November 17, 1993, police received a call that J.S. had been raped by appellee, Charles Avondet, who is her step-grandfather. Officer Snook and another officer interviewed the victim at the hospital, and as a result, Officer Snook obtained both an arrest warrant and a search warrant. They executed the warrant immediately, arriving at appellee’s residence at 4:15 a.m. Officer Snook described what occurred at that point:

____We had knocked on the door and he came out. We identified ourselves. He seemed rather shocked. Told him why we were there and the first thing out of his mouth was, well, I didn’t rape her. You know, she voluntarily come back and had sex with me. He says, I can’t believe this.

Notes of Testimony, 3/4/94, at 7. At that point, appellee became ill, started to breathe rapidly, and fell over. The police carried him to a chair in the kitchen and decided not to arrest him. Officer Snook called appellee’s daughter, and she came over to assist him. Once appellee recovered, police read him his Miranda rights, and appellee then made a second statement, in conformity with his first .statement, in which he indicated thát he and the victim had had consensual intercourse.

Thus, the sequence of events is clear. As soon as the police informed appellee that he was being arrested for rape, he became highly agitated and ill and insisted that the sex had been consensual. Officer Snook never deviated from this description of events and in fact, repeated it:

Q Now, with respect to the initial statements that the defendant, Mr. Avondet, made when you first arrived, you said he acted shocked or seemed shocked. Can you be more specific as to how, what led you to the conclusion that he was acting shocked?'
A It was just a surprise look on his face and like no, no, no, no. He says I didn’t rape her. He said, you know, we had sex, yeah, but ...
Q All right so the initial statements are just basically blurt-out type statement?
A Yes.
Q You’re not asking him questions at that point?
A No.
Q Okay. Now, after he falls and you get his, call his daughter and ask her to come over and you said he was talking to you about it. Did you at any point give his Miranda rights?
A Yes. It was 0425 hours and he did sign the common state police rights and waiver.
Q In terms of when he signed the Miranda, did you actually read him the Miranda rights?
A Yes.
Q In terms of when that occurred in relation to the overall time frame, like what time you got there, then he falls, then they make the call to the daughter, where did the Miranda rights advice come in and that whole scenario?
A I’m not positive. It was just before he fell or after he fell and we got him back up on the chair but it was right into that time frame there.
Q You said you had kept him on the floor for a while I guess that’s why I’m asking in terms of time. I think you testified you got there at what, 4:15?
A What I’m saying — No, I’m guessing from 4:15 — How I picked that time, I looked at the report and the rights were at 4:25.
Q Okay.
A I would have to look at my log at the station to tell you the exact time that the vehicle arrived. I’m guessing 4:15 to 4:20.
Q All right. So approximately five to ten minutes before the time that you read Miranda rights?
A Yes.
Q The time that you read him Miranda rights did you ask him if he at that point wanted to make any statement to you?
A Yes.

In addition, Officer Snook reaffirmed this sequence of events on cross-examination. The officer stated that “when I got there the first thing I identified myself. Explained to him why I was there. I told him about the allegation of rape and that we did have an arrest warrant for him.” Id. at 18. The officer then was asked, “He made the statement right at that point?” Id. Officer Snook replied affirmatively, stating, “Yes. As a matter of fact, I’m not sure I was in the door yet when he stated talking about it.” Id.

It is axiomatic that a defendant’s spontaneous statements not made in response to police conduct or questioning are not subject to suppression. Commonwealth v. Odrick, 410 Pa.Super. 245, 599 A.2d 974 (1991). In Odriek, the defendant confessed to a friend that he had stabbed his own sister and his sister’s friend. The friend telephoned police, who immediately upon their arrival asked what had happened. The defendant confessed to the double killing. Police handcuffed the defendant but did not question him further. On the way to the police station, the defendant again blurted out that he had killed the two women.

The defendant argued that the statements he gave to police while he was handcuffed and in custody should have been suppressed since he had not been administered Miranda warnings. We disagreed, holding that the “statements made by appellant after he was handcuffed were not a result of custodial interrogation but instead were ‘blurt outs’ and thus were admissible despite the fact Miranda warnings were not given.” Id., 410 Pa.Super. at 249, 599 A.2d at 974.

Our decision in Odrick was premised upon Commonwealth v. Yarris, 519 Pa. 571, 549 A.2d 513 (1988). In Yarns, the defendant was in prison awaiting trial on pending charges when he volunteered to prison officials that he knew who had committed an unrelated crime, the rape and murder of a woman. Police investigated the individual who the defendant named and ascertained that it was impossible for that individual to have been at the crime scene. Police also discovered that the other individual had a sperm type different from that found in the victim. In the volunteered statements, the defendant also evidenced an extensive knowledge of the details of the crime, some of which police had not made available to the public.

Our Supreme Court refused to suppress the statements which had been made without the administration of Miranda warnings. It ruled specifically that a defendant’s volunteered statements, even if made in police custody, will not be suppressed as long as the police did not physically or verbally attempt to elicit incriminating statements from the defendant and as long as the statements were not the result of any discussions initiated by police.

Yarns and. Odrick prevent the suppression of the statements at issue herein. The uncontroverted evidence was that Officer Snook approached appellee and informed him that he was being arrested for rape. Before the officer even had an opportunity to give the Miranda warnings, appellee blurted out that he had not raped the victim but that she had. consented to sexual relations.

The trial court suppressed appellee’s initial statement, made’ when police first arrived, based on its conclusion that appellee was in custody at the time that it was made. We do not take umbrage with the trial court’s conclusion that appellee was in custody. However, as Odrick and Yarns clearly provide, the fact that a defendant is “in custody” is not the sole consideration. The statement was completely spontaneous, and police had not initiated discussions nor done anything, physically or verbally, to elicit a statement from him. Thus, the statement was not a result of interrogation and not suppressible due to a lack of Miranda warnings.

We acknowledge that the trial court concluded that police “initiated discussions” of the crime prior to the volunteered statement; however, this finding is without support in the record. The trial court made the following factual findings regarding this issue:

At the suppression hearing held on March 4, 1994, Trooper Snook testified that he arrived at the Defendant’s residence at approximately 4:15 am., November 18, 1993. He noticed that no interior lights were on at the residence. When Trooper Snook knocked on the door, the Defendant opened the door and Trooper Snook immediately informed the Defendant that he had a warrant for the Defendant’s arrest and proceeded to discuss the allegations which the stepgrandaughter was asserting against Defendant to which the Defendant replied, “I didn’t rape her. She voluntarily came back and had sex with me. I can’t believe this.” (Trooper Snook quoting the Defendant’s statement at the suppression). We find that the initial communications by Trooper Snook to the Defendant led to the Defendant’ stating that he had engaged in consensual sex with the victim. Approximately five minutes later, Miranda warnings were read at approximately 4:25 A.M.

Trial court opinion, 5/17/94, at 1-2 (emphasis added). The underlined factual finding simply is not supported by the record.

Officer Snook’s testimony was that he informed appellee that the officer was executing a warrant to arrest him for the rape of the victim. Before Officer Snook could say anything else, appellee became agitated and blurted out that the sex had been consensual. Officer Snook did not even ask appellee what had happened, as the officers had in Odrick. When appellee became ill, he was moved to the kitchen. Officer Snook made sure that appellee was better, called appellee’s daughter, administered Miranda warnings, and then started to discuss the allegations. Appellee waived Miranda rights prior to offering his second statement, which was in conformity with his first.

As the Commonwealth aptly observes, the suppression rule is designed to punish unconstitutional police behavior. Police here did nothing wrong by first informing appellee that they had a warrant for his arrest and that he was accused of rape. Appellee faults police for not interrupting his initial blurt out statement to administer the warnings. However, there is no indication that police could have interrupted him. Appellee immediately denied raping the victim and said that the sexual intercourse was voluntary. These are short, spontaneous utterances. This was not the beginning of a lengthy discussion which could be interrupted.

The knock and announce rule requires police who are executing a warrant immediately to inform a defendant of their identity, authority, and purpose. Pa.R.Crim.P. 2007. Therefore, Officer Snook legally was required first to inform appellee that the officer was executing a warrant for his arrest on charges of rape. Police cannot simultaneously administer Miranda warnings and comply with the knock and announce rule. Herein, there is no indication that Officer Snook purposefully delayed informing appellee of his Miranda rights in order to elicit incriminating statements. As appellee’s initial statements did not result from any conduct, verbal or physical, by police and did not result from the initiation by police of a discussion of the crime, they were suppressed improperly. Since appellee’s initial statements were not obtained unconstitutionally, the second statement, given after Miranda warnings and a waiver thereof, also was suppressed improperly.

Order reversed and case remanded.

      . In accordance with the requirements of Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), the Commonwealth has certified that the suppression order substantially handicaps its prosecution of this case. Appellant’s brief at 7.


author: SAYLOR, Judge: CAVANAUGH, Judge,

text:
    654 A.2d 591
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert Peter PHILLIPS, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1994.
    Filed Feb. 16, 1995.

      Nancy L. Hughes, Asst. Dist. Atty., Reading, for Com., appellant.
    William R. Bernhart, Reading, for appellee.
    Before CAVANAUGH, POPOVICH and SAYLOR, JJ.
   SAYLOR, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Berks County which dismissed certain counts of the Commonwealth’s amended information against Appellee, Robert Peter Phillips. We affirm.

The facts of this case are not in dispute. During the fall of 1992, the Reading Police, the Pennsylvania State Police and other law enforcement authorities set up a “reverse sting” operation, which targeted individuals in the Reading area involved in the buying and selling of stolen merchandise. Scott Brenner, security chief at a local Sears store, provided the police with certain goods which were used in the operation, including a Sears VCR.

At approximately 1:30 p.m. on August 28, 1992, a police informant and an undercover state police officer went to Phillips’ grocery store and sold him a new VCR in its original box, bearing a Sears label. Shortly after the transaction, Phillips contacted Sears, spoke with Scott Brenner, and asked whether any VCRs had been reported stolen or missing. Brenner told Phillips that he did not know of any missing VCRs. Phillips indicated that he had seen two men selling a Sears VCR on the streets of Reading, and asked if a stolen credit card could have been used to purchase a VCR. Brenner stated that he would look into the matter.

At approximately 2:05 p.m. the same day, Phillips again called Sears and spoke with a different employee about the VCR. The employee told Phillips that he would look into the matter, and Phillips then left his name. At 3:12 p.m., Phillips called Sears a third time and spoke with Brenner. Phillips indicated that he believed the VCR to be stolen; Brenner responded that he did not know of any missing VCRs and demanded the caller’s identity. Phillips told Brenner his name, that he owned a grocery store in Reading, and that on occasion he buys goods for his store which turn out to be stolen. Phillips stated that when he determines that goods are stolen, he contacts the police. He then gave Brenner a detailed description of the Sears VCR and provided his telephone number. Brenner then realized that the VCR described by Phillips was identical to the one Brenner had previously provided to the police for use in the reverse sting operation.

Approximately one hour later, Brenner telephoned Phillips and told him that the VCR was neither missing nor stolen from Sears. Phillips again asked whether Brenner could have been mistaken and offered to show the VCR to Brenner that evening. Brenner, knowing that Phillips would have recognized him from another unrelated investigation, declined the offer to meet with him.

Subsequently, Brenner contacted the police regarding his conversations with Phillips. The police told Brenner that he could say anything to Phillips provided he did not expose the reverse sting operation, and told him to document his conversations with Phillips. The police continued to target Phillips after determining that his involvement in the sale of stolen goods had not ceased.

On September 4, 1992, the police dispatched an officer to Phillips’ grocery store to dissuade him from further contact with Sears. At that time, Phillips informed the officer that a VCR which he had purchased may have been stolen from Sears. The officer ignored the concerns raised by Phillips, and told him that the police had received complaints from Sears about his harassing phone calls. Sears, however, had never complained to the police about Phillips’ phone calls, and the officer’s story was a fabrication. Phillips thereafter made several other purchases through the reverse sting operation.

On February 11, 1993, a criminal information was filed against Phillips and he was placed under arrest. Following a hearing, certain counts contained in the information were dismissed and the Commonwealth was subsequently given leave to file an amended information. On October 1, 1993, an amended information was filed charging Phillips with, inter alia, eight (8) counts of criminal solicitation to commit theft by unlawful taking or disposition, four (4) counts of criminal attempt to receive stolen property and four (4) counts of conspiracy to receive stolen property. Phillips then filed an amended omnibus pretrial motion requesting that the trial court quash the amended information, issue a writ of habeas corpus and dismiss the charges. Phillips raised the defense of entrapment as a matter of law and alleged due process violations resulting from egregious police conduct. On December 7, 1993, following several extensive pretrial hearings, the trial court dismissed approximately sixty-four (64) counts, none of which are the subject of this appeal, and denied Phillips relief on the sixteen (16) counts at issue in this appeal.

On December 15, 1993, Phillips filed motions requesting, inter alia, the following relief: production of exculpatory evidence, a more specific bill of particulars and the dismissal of all remaining charges. At a hearing on these motions, the Commonwealth produced a copy of a six page written report submitted by Scott Brenner, which detailed Phillips’ telephone contacts with Sears. The trial court then ordered a rehearing on the claims of entrapment and due process violations. Following the re-hearing, the trial court dismissed the aforementioned sixteen (16) counts by order dated February 22, 1994. This appeal by the Commonwealth followed.

On appeal, the Commonwealth presents the following contentions for our review:

A. The lower court erred in dismissing counts 66, [6]9, 70, 71, 72, 73, [74], 75, 76, 77, 78, 79, 80, 81, 83 and 85 as being violative of the due process clauses of the United States and Pennsylvania Constitutions.
B. The lower court erred in dismissing the above listed counts as being violative of Title 18 Section 313 (entrapment) in that the facts were not sufficient to find entrapment as a matter of law.
C. The lower court erred in dismissing the above counts in that the entrapment defense is not renewable under pretrial habeas corpus analysis.

We first address the Commonwealth’s contention that the trial court erred when it found the evidence sufficient to establish entrapment as a matter of law. The defense of entrapment is defined as follows:

(a) General Rule. — A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of Proof. — Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment.

18 Pa.C.S. § 313.

The entrapment statute applies an objective test which focuses on the conduct and tactics of the police, rather than on the defendant’s predisposition to commit a crime. Commonwealth v. Benchino, 399 Pa.Super. 521, 582 A.2d 1067 (1990). The defendant has the burden of proof and must show, in order to succeed on a claim of entrapment, that ‘“police conduct would have induced an innocent person to commit a ‘crime.’ ” Commonwealth v. Benchino, supra, 399 Pa.Super. at 533, 582 A.2d at 1073, quoting Commonwealth v. Wilson, 381 Pa.Super. 253, 258, 553 A.2d 452, 454 (1989).

The trial court should determine whether entrapment as a matter of law exists where the operative facts relating to the defense are not in dispute. Commonwealth v. Mance, supra, 422 Pa.Super. 584, 619 A.2d 1378 (1993), aff'd. 539 Pa. 282, 652 A.2d 299 (1995). The standard for determining whether a defendant was entrapped as a matter of law is as follows:

Whether an “entrapment has occurred is a question for the jury, unless the evidence points to only one conclusion, in which case it may be decided as a matter of law.” ...
Moreover, where there is conflicting testimony on the subject of inducement, the matter is properly left for the jury to resolve.

Commonwealth v. Mance, supra, 422 Pa.Super. at 589-590, 619 A.2d at 1380, quoting Commonwealth v. Wright, 396 Pa.Super. 276, 288-289, 578 A.2d 513, 519-520 (1990).

In this case, the evidence was undisputed that prior to making any other purchases through the reverse sting operation Phillips had, on numerous occasions, attempted to ascertain whether the Sears VCR he had purchased from the police had been stolen. Scott Brenner, the Sears employee who was assisting the police in the reverse sting operation, assured Phillips that the VCR he purchased had not been reported missing or stolen from Sears. Brenner was told by police to say anything to Phillips so long as it did not expose the reverse sting operation. Brenner also refused to meet with Phillips to view the VCR for fear of jeopardizing the operation. Further, the police, concerned that Phillips would learn of the reverse sting operation through his repeated inquiries of Sears employees and would then refrain from additional purchases, fabricated a story that Sears had complained about his phone calls and requested that he cease further contact with Sears. The conduct of the police and Scott Brenner, who was acting as their agent, was clearly designed to induce Phillips into the belief that his purchase and retention of the Sears VCR was not unlawful, and to promote further purchases by Phillips from police officers and informants involved in the reverse sting operation.

After careful review of the record, we are satisfied that there was sufficient evidence to support the trial court’s conclusion that the police conduct at issue constituted entrapment as a matter of law. Accordingly, the order dismissing sixteen (16) counts of the amended information is affirmed.

Order affirmed.

CAVANAUGH, J. files a Dissenting Opinion.

CAVANAUGH, Judge,

dissenting:

Most respectfully, I dissent. Under the entrapment statute, a defendant has the burden of proving that a public law enforcement official, or a person acting in cooperation with such an official, induced or encouraged the defendant into engaging in conduct which constitutes a criminal offense. Commonwealth v. Mance, 422 Pa.Super. 584, 589, 619 A.2d 1378, 1380 (1993), aff'd., 539 Pa. 282, 652 A.2d 299 (1995). “Whether an ‘entrapment has occurred is a question for the jury, unless the evidence points to only one conclusion, in which case it may be decided as a matter of law.’ ” Manee, quoting, Commonwealth v. Wright, 396 Pa.Super. 276, 288-89, 578 A.2d 513, 519-520 (1990). My review of the record in this case leads me to conclude that entrapment has not been proven as a matter of law. Objectively viewing the conduct of the police, a jury could conclude that the Sears employees were not acting in cooperation with the police, or at their direction, when they repeatedly declined to confirm defendant’s suspicion that the VCR was stolen. All but one of these conversations with defendant took place before police were aware that defendant had been calling Sears. Furthermore, the police did not instruct the Sears employee, who eventually contacted police, to mislead the defendant; rather, they told him that he could tell the defendant anything, so long as he did not reveal that there was an investigation. Finally, the Sears employee simply told the defendant that he did not believe the VCR to be stolen; and the employee testified that this statement was true as the VCR was accounted for, as it was one of the items which had been provided to police. Thus, I believe the trial court erred in concluding that entrapment had been established as a matter of law.

Additionally, because a jury question exists, this case is not a proper subject matter for a writ of habeas corpus. See Commonwealth v. Morman, 373 Pa.Super. 360, 541 A.2d 356 (1988) (in reviewing a petition for habeas corpus, the court determines whether the Commonwealth has sufficient evidence to establish a prima facie case that a crime has been committed and that the accused committed the crime). The evidence presented by the Commonwealth at the hearing below was clearly sufficient to establish a prima facie case against defendant. Accordingly, I would reverse the order of the trial court and remand this case for trial.

      . A reverse sting is an undercover operation where government agents pretend to be selling stolen goods. Commonwealth v. Mance, 422 Pa.Super. 584, 619 A.2d 1378 (1993), aff'd. 539 Pa. 282, 652 A.2d 299 (1995).

      . The amended information contained a total of 100 separate counts against Phillips arising from the reverse sting operation and a separate investigation involving Phillips’ alleged' improper use of the electronic benefit transfer (food stamp) system; only the sixteen (16) enumerated counts are implicated in this appeal.

      . In its opinion, the trial court noted that this order dismissed seventeen (17) counts upon the basis of entrapment and/or due process violations and inadvertently included count 67 (criminal attempt to receive stolen property), which had been withdrawn by the Commonwealth at the re-hearing.

      . The Commonwealth proceeded to trial on the remaining counts which had not been dismissed or withdrawn. After the Commonwealth rested, the trial court granted Phillips’ motion for judgment of acquittal.

      . In its third issue on appeal, the Commonwealth contends that the trial court could not review the entrapment defense within the context of a pretrial habeas corpus proceeding. Phillips asserted this defense in his amended omnibus pretrial motion requesting that the subject counts be quashed, a writ of habeas corpus issue, and that the charges against him be dismissed. The Commonwealth argues that entrapment as a matter of law could not be raised until the conclusion of the Commonwealth’s case-in-chief, and that the entrapment defense was prematurely decided. However, several pretrial hearings were held in this matter which established the operative facts regarding the conduct of the police. The Commonwealth does not contradict or dispute such facts, and does not allege the existence of facts, previously undisclosed at the pretrial hearings, which would prevent this issue from being determined as a matter of law. Accordingly, it is unreasonable to require Phillips to raise the entrapment defense in an alternative proceeding, or to delay resolution of this matter until after presentation of the Commonwealth’s case-in-chief.

      . Because we have determined that the trial court properly found entrapment as a matter of law and dismissed the sixteen (16) counts against Phillips upon that basis, we need not address the Commonwealth’s contention regarding the trial court’s dismissal of those counts on alternative due process grounds.