author: CERCONE, Judge:

text:
    564 A.2d 1277
    COMMONWEALTH of Pennsylvania v. William J. BRUNER, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 3, 1989.
    Filed Oct. 6, 1989.

      Michelle A. Fox, Harrisburg, for appellant.
    Julia A. Merl, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This appeal is from the judgment of sentence of the Court of Common Pleas of Dauphin County. We affirm.

In October, 1986, appellant was arrested and charged with two counts of unlawful possession of a controlled substance with intent to deliver, and one count of possession of drug paraphernalia. A jury found appellant guilty of all charges. His post-trial motions were denied and he was sentenced, on the convictions of possession of controlled substances with intent to deliver, to concurrent terms of not less than five (5) nor more than ten (10) years and a total fine of two hundred dollars ($200.00) (one hundred dollars on each count). On the charge of possession of drug paraphernalia, appellant was sentenced to a term of imprisonment of not less than six (6) months nor more than twelve (12) months, to run concurrently to his sentence on the other charges, and a find of one hundred dollars ($100.00).

Appellant’s motion for modification of sentence was denied, and he filed the instant timely appeal.

The facts of the case as adduced by the lower court are as follows:

On October 10, 1986, officers from the Harrisburg Police Department arrested defendant on an assault complaint. The complainant was Angelo M. Pennella, a contractor who had been working at a property located at 2259 North Sixth Street in Harrisburg when the building was owned by the defendant. The arrest took place at that location.
The assault victim notified the police that he had observed marijuana and cocaine in the first floor rear apartment of defendant’s building and further information was received from an unidentified informant stating defendant was involved in drug sales. Accordingly two officers, Teel and Goshert, sought a search warrant for defendant’s building. After the arrest in [sic] the assault charge, but prior to the execution of the search warrant, an individual, known to the police as a drug dealer, came to City Hall and attempted to retrieve defendant’s keys to the apartment. Faced with this situation, two officers and a canine dog were dispatched to secure the premises pending the arrival of the search warrant. The search of the apartment occurred after the search warrant arrived. Fourteen plastic bags containing a total of 81 grams of marijuana and in addition white powder analyzed as 4.47 grams of heroin were found. A triple beam scale for gram measurement was found in the living room behind the couch, together with numerous baggies. Numerous bills and items of correspondence were recovered containing the name of the defendant and the address of 2259 North Sixth Street, Harrisburg.
After the arrest, the defendant was questioned and he denied living in the first floor rear apartment, claiming a person by the name of Jack Jones lived there. Brunner [sic] asserted he resided on the second floor in the rear bedroom. Brunner [sic] had, at that point, not been told that a search of the second floor bedroom had yielded bags of marijuana and cocaine and that an examination of that room indicated occupancy by a Terry Wells, a half brother of William Brunner [sic].

Appellant contends on appeal that (1) the suppression court erred in denying his Hall motion and motion to suppress and abused its discretion by refusing to order the appearance of a witness for the defense; (2) the evidence was insufficient to support the convictions; (3) the trial court erred in admitting certain physical evidence without establishing an unbroken chain of custody; (4) the trial court erred in denying appellant’s motions for mistrial; (5) trial counsel was ineffective; and (6) the sentencing court abused its discretion. We will address these claims seriatim.

Appellant’s first contention is that the lower court erred in denying his motion to suppress the October 10, 1986 search of his residence. Specifically, appellant claims that prior to the search of his residence pursuant to warrant, two police officers and a police dog entered his building, including the first floor apartment, and searched it. This entry, appellant contends, was illegal, and thus, the evidence obtained pursuant to warrant a few hours later was inadmissible and should have been suppressed.

In reviewing a suppression court’s denial of a motion to suppress, the appellate court’s responsibility is to determine whether the record supports the factual findings of the suppression court and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Hughes, 521 Pa. 423, 437, 555 A.2d 1264, 1271 (1989). In making this determination, the reviewing court “will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Id., 521 Pa. at 438, 555 A.2d at 1271-72, quoting Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976).

Evidence adduced at the suppression hearing revealed that three police officers arrived at appellant’s residence on October 10, 1986 at approximately 4:30 p.m. The purpose of the officers’ presence there was to secure the premises until the executed search warrant could be obtained. The officers admitted themselves to the apartment, and two of them waited in the kitchen while the third officer walked through the apartment to determine if any other persons were present therein. Testimony was offered that the officers did not search the premises until the executed search warrant arrived at 5:05 p.m. Nor did any seizure take place during this time, and nothing was observed in plain view, according to the testimony, which later became evidence in the case. There was also testimony that nothing occurred during the time the officers were present on the premises prior to receiving the warrant which altered any of the warrant’s language.

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.” U.S. Const, amend. IV; Pa. Const. art. 1, § 8. Warrantless searches are, “subject only to a few specifically established and well-delineated exceptions,” per se unreasonable and are therefore prohibited by the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). However, the Fourth Amendment does not require suppression of evidence seized from a private residence pursuant to a valid search warrant, notwithstanding an earlier illegal entry by police, where the warrant was issued on information obtained by the police before the entry into the residence. Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Where the warrant and the information on which it was based were unrelated to the illegal entry, they constitute an independent source for the evidence, and thus the evidence does not require suppression. Id.

These are exactly the circumstances present in the instant case. The search warrant in this case was based on information received independently from and prior to the entry of police on the premises without a warrant. The warrantless entry of the police did not result in a search, seizure, or observation of evidence, or in any change in the already executed warrant. Thus, the warrantless entry did not invalidate the subsequent search pursuant to warrant and the lower court did not err in denying the motion to suppress on this basis.

Nevertheless, appellant contends that the evidence should have been suppressed because the warrant was lacking in sufficient probable cause. The affidavit of probable cause in the instant case contained information provided by (1) a named informant; (2) a confidential source; and (3) three anonymous citizens’ complaints. Appellant argues that the named informant’s remarks must be viewed with suspicion and that the information from the confidential and anonymous informants lacked sufficient reliability.

“Before an issuing authority may issue a constitutionally valid search warrant he or she must be furnished with information sufficient to persuade a reasonable person that probable cause exists to conduct a search.” Commonwealth v. Jones, 506 Pa. 262, 269, 484 A.2d 1383, 1387 (1984). Probable cause to support issuance of a search warrant is present where facts and circumstances within the affiant’s knowledge, of which he has reasonable trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in belief that a search should be conducted. Commonwealth v. Bonasorte, 337 Pa.Super. 332, 486 A.2d 1361 (1984). The information offered to demonstrate probable cause to search “must be viewed in a common sense, nontechnical, ungrudging and positive manner.” Commonwealth v. Jones, supra. It is based on a finding of probability, not a prima facie showing of criminal activity. Id.

The named informant in this case was the victim of the assault with which appellant had been originally charged. The victim, who had been working as a contractor at the building in which appellant resided, advised the police that he had observed marijuana and cocaine in the first floor apartment of the building, the apartment which was subsequently searched by police. We have held that identified citizens who report their observations of criminal activity to police are assumed to be trustworthy, in the absence of special circumstances. Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981); Commonwealth v. Frazier, 269 Pa.Super. 527, 410 A.2d 826 (1979). Appellant has cited no special circumstances which would cast doubt on the inherent trustworthiness of this informant. Thus, the affidavit was supported by probable cause on the basis of his information alone.

In addition, the reliability of the confidential informant was established by the recitation that he [the informant] had been in the residence and had purchased cocaine from the defendant within seven days of the date of the warrant, and that the informant had given prior reliable information which had led to the arrest of persons and discovery of evidence. See Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981) (drug search warrant based on information ten days old valid); Commonwealth v. Albert, 264 Pa.Super. 390, 399 A.2d 1106 (1979) (court did not err in finding informant reliable in view of affiant’s statement that previous information from informant had led to two arrests and seizure of dangerous drugs). The three anonymous citizens’ complaints tended to bolster the credibility of the information provided by the other two informants. See Commonwealth v. Mamon, 449 Pa. 249, 259, 297 A.2d 471, 477 (1972) (“[w]hen two independent informants both supply the same information about a particular crime to the police, each source tends inherently to bolster the reliability of the other”). Thus, the lower court did not err in finding sufficient probable cause to support the search warrant.

Appellant next contends that the suppression court erred in denying his “Hall ” motion attacking the validity of the search warrant in the instant case. In Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973), it was held that the veracity of facts recited in an affidavit can be attacked at a suppression hearing. Appellant argues that he should have been permitted to ascertain the veracity of the confidential informant’s statements that he had been inside appellant’s building and had bought cocaine from appellant within seven days prior to the date of the warrant.

Despite the holding of the court in Hall, a defendant does not have a right to a hearing to attempt to establish that an affidavit for a search warrant contains a false statement, even in a material part, where the affidavit on its face is sufficient to support a finding of probable cause and no showing of a material misrepresentation in the affidavit is made by the defendant. Commonwealth v. Miller, 513 Pa. 118, 518 A.2d 1187 (1986). See also Commonwealth v. Bonasorte, 337 Pa.Super. 332, 486 A.2d 1361 (1984) (defendant seeking production of a confidential informant must demonstrate some good faith basis in fact to believe that a police officer-affiant willfully has included misstatements of fact in an affidavit of probable cause). Furthermore, a defendant may not insist upon disclosure of the informant’s identity when such disclosure would jeopardize the informant’s safety. Commonwealth v. Miller, supra 513 Pa. at 133, 518 A.2d at 1195. Nor may the defendant insist upon disclosure of information that would directly lead to ascertainment of the informant’s identity. Id. Thus, the reliability of the information provided by an informant in an affidavit for search warrant must be determined from facts supplied by the police official swearing to the affidavit. Id., 513 Pa. at 134, 518 A.2d at 1195. A Hall motion, to be successful, must also demonstrate that without the informant’s information there would not have been probable cause. Commonwealth v. Bonasorte, supra 337 Pa.Super. at 355, 486 A.2d at 1374.

Taking into account these post-Hall interpretations, we find no error in the lower court’s denial of appellant’s Hall motion. Although appellant has stated that he is not seeking the identity of the confidential informant, it is difficult to determine how he would obtain the information he seeks without production of that informant. Appellant has not demonstrated the required good faith basis for his belief that the police officer-affiant in this case willfully included misstatements of fact. Finally, in the instant case, there was also a named informant in addition to the confidential one. We have already held that the information supplied by the named informant provided sufficient probable cause for issuance of the affidavit in this case. Therefore, probable cause existed even without the information of the confidential informant. Here, the lower court correctly denied appellant’s Hall motion. Appellant’s next contention on appeal is that the suppression court abused its discretion by failing to order the appearance of a certain witness for the defense. Specifically, appellant argues that the lower court erred in closing the testimony after learning that the subpoena for the witness in question had not been served, despite several attempts by the sheriff’s department to do so.

The grant or denial of a motion to secure witnesses is a matter within the sound discretion of the lower court. Commonwealth v. Stanton, 294 Pa.Super. 516, 440 A.2d 585 (1982). To be entitled to compulsory process for obtaining witnesses, a defendant must establish that the person to be produced has relevant or material testimony of the issues in question. Commonwealth v. Coffey, 230 Pa.Super. 49, 331 A.2d 829 (1974). The constitutional right to compulsory process for the purpose of securing witnesses, while fundamental, is not absolute. Commonwealth v. Jackson, 457 Pa. 237, 324 A.2d 350 (1974). “Evidentiary rules based on legitimate state interests which exclude certain witnesses or certain testimony are not inconsistent nor incompatible with the right to compulsory process.” Id., 457 Pa. at 243, 324 A.2d at 355. Whether to exclude repetitive testimony is a matter within the discretion of the trial court. Commonwealth v. Sanders, 339 Pa.Super. 373, 489 A.2d 207 (1985).

In the instant case, the lower court initially ordered, after indications by defense counsel that a subpoena had been served, that the witness in question be brought into court for the purpose of testifying at the suppression hearing. Later, during the course of the hearing, it was reported that the subpoena had not in fact been served, although several attempts had been made. At this point, the court refused to order further attempts to secure this witness. We have reviewed the record of the suppression hearing. The testimony which the witness allegedly would have offered would simply have corroborated that of the other defense witnesses, a fact which was noted by the lower court. As the testimony would have been simply cumulative, we find no abuse of discretion by the lower court in denying appellant’s request to take further action to compel this witness’ presence.

Appellant’s next challenge on appeal is to the sufficiency of the evidence. Specifically, appellant contends that there was insufficient evidence to establish (1) his constructive possession of the contents of the first-floor apartment; (2) his constructive possession of the heroin seized therein; and (3) that he possessed the requisite intent to deliver the seized contraband. In evaluating a claim of sufficiency of the evidence to sustain a conviction, the evidence must be viewed in the light most favorable to the Commonwealth as verdict winner, and drawing all proper inferences favorable to the Commonwealth, it must be determined whether the jury could reasonably have found all of the elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989).

Appellant was convicted of violations of sections 780-113(a)(30) and (a)(32) of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq. which provide in pertinent part:

§ 780-113. Prohibited acts; penalties
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act ...
(32) The use of, or possession with intent to use, drug paraphernalia____

Id.

When drugs are not found on the defendant’s person, the Commonwealth is required to prove constructive possession. Commonwealth v. Samuels, 235 Pa.Super. 192, 204-05, 340 A.2d 880, 886 (1975). Two elements are essential to a finding of constructive possession: the power to control and the intent to exercise control. Id. The. inference of possession will be maintained if the drugs are found in a place normally accessible only to a resident of the home. Id. Exclusive control over the contents of a residence may be inferred from a showing that the defendant is the only occupant or tenant of that residence. Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981).

We agree with the lower court that the evidence established appellant’s constructive possession of the contents of the first floor apartment. As the lower court pointed out, the search of that apartment yielded two postal customer receipts containing appellant’s name, various envelopes addressed to appellant at that address, a traffic citation made out to appellant, and a civil complaint listing appellant as plaintiff at the address at which the evidence was recovered. In addition, testimony was offered by the victim of the assault that appellant lived at the residence in issue and that he (the victim) had met with appellant there on several occasions. This evidence was sufficient to establish appellant’s constructive possession under section 780-113.

Appellant’s argument that the evidence is insufficient to establish his constructive possession of heroin is based on testimony elicited at trial that the initial field test of the substance indicated the presence of cocaine. A subsequent laboratory analysis revealed the substance to be heroin. Appellant contends that a break in the chain of custody occurred which caused a mixing of the evidence seized in the first floor apartment with that seized upstairs in a second floor apartment occupied by another individual.

Appellant’s argument is without merit. The standard for establishing a chain of custody for admission of physical evidence was stated by the court in Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980):

The admission of demonstrative evidence is a matter committed to the discretion of the court ... Furthermore, there is no requirement that the Commonwealth establish the sanctity of its exhibits beyond a moral certainty ... Every hypothetical possibility of tampering need not be eliminated; it is sufficient that the evidence, direct or circumstantial, establishes a reasonable inference that the identity and condition of the exhibit remained unimpaired until it was surrendered to the trial court ... Finally, physical evidence may be properly admitted despite gaps in testimony regarding its custody....

Id., 489 Pa. at 631-32, 414 A.2d at 1387 (citations omitted).

The evidence adduced at trial showed that a police narcotics officer found and seized from appellant’s first floor apartment a plastic transparent bag containing a white powder substance. The officer indicated that he field tested the substance which gave a positive reaction for cocaine. He then put the substance inside an envelope, addressed the outside, stapled it, and gave it to the evidence officer. The narcotics officer identified the envelope at trial as Commonwealth Exhibit 2. A chemist testified that he had analyzed the powder in the envelope and found it to contain 4.47 grams of heroin.

The evidence officer testified that he received the evidence in connection with this case on October 15, 1986, and took it to the state police laboratory. Before doing so, he sealed the evidence with evidence tape. He identified Commonwealth Exhibit 2, as one of the items of evidence he had sealed. The officer indicated that he retrieved the evidence from the state police lab in December, 1986 and stored it in a safe in the evidence room. The evidence then was picked up by another officer for court.

Testimony was offered at trial by another officer with regard to Exhibit 2. This officer indicated that he had opened the envelope in March, 1987 because he was attempting to account for certain money that had been seized involving appellant and a co-defendant. Finding no money in the envelope, the officer resealed, initialed, and dated it. He testified that the envelope was untampered with and intact when he opened it in March, 1987 and that another officer or a deputy district attorney would have also been present.

The officer who picked up the evidence for trial testified that at the time he did so, all of the seals were intact and the evidence untampered with. He indicated that he delivered it to the county detective’s office. The chemist who analyzed the white substance identified Commonwealth Exhibit 2 at trial as the substance which he had analyzed and found to contain 4.47 grams of heroin.

Based on this testimony, we find the chain of custody to be more than adequately established. There was absolutely no testimony that would suggest, as appellant has alleged, that there was a “mix-up” in the evidence such that Commonwealth Exhibit 2 was actually not evidence obtained in the first floor apartment. The evidence therefore sufficiently established appellant’s constructive possession of the heroin.

Appellant’s contention that the evidence was insufficient to establish the intent to deliver element of the crimes is also without merit. The lower court determined that the evidence was sufficient, citing the testimony of a police officer and the chemist as to the amounts of the illegal substances which were seized as well as the opinion of two detectives that the substances were possessed with intent to deliver. The lower court also noted testimony that some of the paraphernalia which was found was consistent with packaging and distribution.

We have reviewed the record and find the lower court’s analysis correct. The presence of drug paraphernalia such as empty glassine baggies and scales has been held to establish the additional element of intent to deliver in connection with a charge of possession of a controlled substance. Commonwealth v. Keefer, 338 Pa.Super. 184, 487 A.2d 915 (1985). Since such evidence was present in this case, in addition to the opinions of the two detectives, we conclude that the evidence in the instant case was sufficient to establish the element of intent to deliver.

Appellant’s next contention is that the lower court erred in admitting the marijuana and heroin into evidence at trial because there was insufficient evidence of an unbroken chain of custody. We have already discussed the chain of custody with regard to Commonwealth Exhibit 2, identified at trial as heroin. The chain of custody with regard to Commonwealth Exhibits 1, 3-B, and 3-C, identified at trial as containing marijuana, was identical. Under the standards we have set forth above for the admission of demonstrative evidence, no error was made by the trial court in admitting this evidence.

Appellant argues that the trial court erred in denying his motion for a mistrial. The following exchange, which occurred during defense counsel’s cross-examination of a Commonwealth witness prompted the appellant’s request:

BY DEFENSE COUNSEL:
Q. As of 10/10 you or any of your fellow officers as far as you know never conducted any controlled buys at 2259 North Sixth Street or any controlled buys as relates to my client, am I correct?
A. I never did a controlled buy in relationship to 2259 North Sixth Street.
Q. Or William Bruner?
A. Or William Bruner.
Q. You have not conducted yourself any controlled buys as long as you’ve been a vice officer dealing with drugs when it comes to my client, William Bruner, have you? THE COMMONWEALTH: Now, your Honor, I have to object and ask the relevance. If we want to get into the past activities of William Bruner that— DEFENSE COUNSEL: Your Honor, may we have a sidebar conference?
THE COURT: Let’s just see.
THE COMMONWEALTH: It’s not relevant.
BY THE COURT:
Q. Did you ever have any controlled buys or ever supervise any controlled buys with William Bruner?
A. Not on 10/10. I’ve tried in the past to get informants to do controlled buys from that place.
THE COURT: Okay, let it go at that. I don’t see where it’s relevant to the case. The question is whether or not these drugs were seized and whether or not they can be attributed to the defendant. That seems to me to be the issue here.
BY DEFENSE COUNSEL:
Q. You, yourself, have never purchased any drugs from William Bruner, have you?
A. That’s correct.

Appellant asserts as the basis for his request for a mistrial the comment of the prosecutor that “If we want to get into the past activities of William Bruner that — ,” as well as the witness’ response, “Not on 10/10. I’ve tried in the past to get informants to do controlled buys from that place.”

The decision of whether to declare a mistrial of a criminal prosecution is within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Larkins, 340 Pa. Super. 56, 489 A.2d 837 (1985). The decision depends on whether or not improper evidence was admitted at trial that would so prejudice the fact finder that it would be unable to remain impartial, thereby prejudicing the accused beyond a reasonable doubt. Id. The admission of testimony from which a jury could infer past criminal conduct has been held to be reversible error. Commonwealth v. Phillips, 373 Pa.Super. 193, 540 A.2d 933 (1988). Reversal is not warranted, however, unless the record indicates that prejudice resulted from the testimony. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). Mere “passing references” to criminal activity do not necessitate the granting of a mistrial unless prejudice results from the reference. Commonwealth v. Thomas, 361 Pa.Super. 1, 521 A.2d 442, appeal denied 516 Pa. 617, 531 A.2d 1119 (1987).

Our review of the objected-to testimony reveals no error of such magnitude as to necessitate the granting of a mistrial. Both of the testimonial excerpts to which appellant has objected constitute no more than brief, passing references to possible prior criminal activity. No specific acts were set forth from which the jury could have inferred the fact of prior criminal activity. In addition, the court halted any further inquiry into the subject after the witness’ response to his question, and provided a cautionary comment to the effect that the witness’ answer was not relevant to the issues in this case. Given these factors and the passing nature of both of the comments, we find no prejudice to appellant by these statements. Thus, the lower court did not err in denying appellant’s motions for mistrial.

Appellant also raises several instances of ineffectiveness of prior counsel: (1) failure to file a written Hall motion; (2) failure to adequately raise and preserve the reliability of the confidential informant; (3) failure to present certain alleged exculpatory evidence; (4) failure to ensure the presence of a certain witness at the suppression hearing; (5) failure to adequately cross-examine Commonwealth witnesses; (6) failure to raise the issue of sufficiency of the evidence in post-trial motions; (7) advising appellant not to testify; and (8) opening the door to comment from the prosecutor referring to possible prior criminal activity.

A successful claim of counsel’s ineffectiveness must address three inquiries: (1) whether the underlying claim is of arguable merit; (2) whether counsel had any reasonable basis for his chosen course of conduct; and (3) whether the course of conduct worked to the client’s prejudice, i.e., had an adverse effect on the outcome of the proceedings. Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988). The law presumes that counsel is effective and the burden of establishing ineffective assistance is on the appellant. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).

We have previously addressed appellant’s Hall motion and found it without merit. The filing of a written motion would not change this result. Therefore, appellant’s first claim of ineffectiveness is without merit.

Appellant’s second and sixth allegations of ineffectiveness, concerning the failure to raise and preserve certain issues, are also without merit because those issues were in fact preserved and are addressed in this memorandum.

The third allegation of counsel’s ineffectiveness is that prior counsel failed to present evidence that he was out of town during the time when the alleged purchase of cocaine from him by the confidential informant took place. Appellant alleges that this evidence would have made the probable cause affidavit “more questionable than it was already.”

We reject appellant’s contention. The probable cause affidavit was supported by the allegations of not only the confidential informant, but also the named informant, the assault victim who had been present in appellant's apartment. Thus, even assuming arguendo the truthfulness of appellant’s allegations, there was still sufficient probable cause to support the search of the premises. Appellant has failed to show the required prejudice to support a claim of ineffectiveness.

Appellant has also failed to show prejudice with regard to his allegation that counsel failed to ensure the presence of a certain witness at the suppression hearing. We have already indicated in our discussion of this issue that the testimony which the witness was apparently going to offer was merely cumulative. Thus, appellant was not prejudiced by the absence of this particular witness. Further, the record indicates that the possibility of a continuance was rejected by the suppression court, and that counsel did in fact attempt to keep open the hearing so as to secure the witness’ testimony. Since the sheriff’s office was not able to effect service on the witness, it is apparent that counsel did all that he reasonably could have to secure this witness’ presence.

Appellant contends that trial counsel failed to cross-examine one of the Commonwealth witnesses, a police officer, concerning his knowledge of the reputation of one James Guthrie as a drug dealer. Mr. Guthrie had contacted the police department on October 10, 1986 in order to determine if he could obtain the keys to appellant’s apartment building. As a result of this phone call, police officers were sent to appellant’s residence to secure it until the executed search warrant could be obtained. Appellant contends that trial counsel should have confronted the police officer-witness with questions concerning Mr. Guthrie’s reputation as a drug dealer.

We find no merit to this contention. Mr. Guthrie’s reputation had no relevance to the facts of this case. Even if it were established that he was a drug dealer, that would not negate the fact of his call to the police department or the felt necessity of the police to secure the premises prior to the warrant’s completion. Thus, counsel was not ineffective in failing to question the witness on this point.

Appellant also contends that trial counsel failed to adequately cross-examine one of the Commonwealth witnesses, Sergeant Goshert, as to the details of the first police entry onto the premises. We have reviewed Sergeant Goshert’s testimony and find no merit to appellant’s assertion. Counsel thoroughly questioned the witness about the first entry of police onto the premises on the date in question as well as other matters. The fact that the witness did not supply the answers which appellant asserts were supplied by the defense witnesses does not support a claim of ineffectiveness of counsel.

Appellant asserts that prior counsel was ineffective for advising him not to testify because of his prior criminal record. Appellant argues that his prior criminal record consisted of one motor vehicle code conviction and a conviction of three counts of unlawful delivery of a controlled substance, none of which are crimes of crimen falsi, and therefore could not be introduced at trial. While appellant’s contention has arguable merit, the contention must fail for two reasons. First, appellant has not alleged specifically what testimony he would have offered. Thus, his claim must fail for lack of specificity. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). Second, appellant has not shown how he was prejudiced by the lack of his own testimony. The evidence in the instant case consisted in large part of physical evidence found in the first floor apartment of a building owned by appellant. Much of this evidence, as well as certain testimonial evidence, established appellant as the resident of the premises. It is difficult to see how any denial on appellant’s part could succeed in light of the physical evidence which was uncovered. As we have already indicated, appellant has not provided this information to the court. Therefore, we find this claim of ineffectiveness without merit.

Appellant’s last claim of ineffectiveness is that he “opened the door” to the comment by the prosecutor about possible prior criminal activity. We have already addressed this issue and found the prosecutor’s remark a mere passing reference insufficient to cause prejudice to appellant. In the absence of prejudice, a claim of ineffectiveness of counsel may not succeed. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Appellant’s final contention on appeal is that the lower court abused its discretion in sentencing him to concurrent terms of five (5) to ten (10) years on each charge of possession with intent to deliver. Appellant asserts that the court did not place the proper weight on certain mitigating factors.

Sentencing is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Dykes, 373 Pa.Super. 258, 541 A.2d 1 (1988), alloc. denied 520 Pa. 602, 553 A.2d 965 (1988). Where the sentencing judge has the benefit of a pre-sentence report, it shall be presumed that “the sentencing judge was aware of the relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988). The record in the instant case reveals that the sentencing judge was informed by a pre-sentence investigation. The presumption will therefore stand. The sentencing judge also disclosed on the record his reasons for sentencing as he did. We find no abuse of discretion on the part of the lower court.

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(30). The two substances which appellant was charged with possessing were heroin and marijuana.

      . Id. § 780-113(a)(32).

      . See discussion of Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973).


source: Caselaw Access Project

license: Public Domain

text:
    564 A.2d 1289
    COMMONWEALTH of Pennsylvania v. Harold McNEIL, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1989.
    Filed Oct. 6, 1989.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before DEL SOLE, TAMILIA and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment of sentence. Appellant, Harold McNeil, was tried and found guilty by a jury of burglary and possessing an instrument of a crime, generally. Subsequent to the denial of his post-verdict motions, appellant was sentenced to a term of ten (10) to twenty (20) years on the burglary charge and a term of two and one-half (2-½) to five (5) years on the possession of an instrument of crime charge. Appellant then filed a petition for reconsideration of sentence. Upon consideration of this petition, the court changed appellant’s sentence to allow the period of incarceration on the weapons charge to run concurrently with the sentence imposed on the burglary charge. This timely appeal follows.

The facts of this case, as outlined by the lower court, are as follows:

On September 5, 1987, at about 9:40 P.M., Philadelphia police officer John Burke received a radio call of a burglary in progress at the rear of a house at 2505 West Sterner Street, in Philadelphia, Pennsylvania. Burke arrived on the scene and entered the back alley of the house within two minutes of getting the call. He saw [appellant], identified as Harold McNeil, with one leg inside the property and with a tire iron in his hand. Burke apprehended McNeil and placed him under arrest. He observed at the time pry marks or “jimmie” marks around the window consistent with its having been forced open.

Appellant presents four issues for our review. First, appellant argues that the lower court’s comments to the venire denied him of his constitutional right to a fair trial and impartial jury. Second, appellant states that the lower court erred by refusing to quash an information charging him with burglary. Third, appellant alleges that the evidence was insufficient to sustain his conviction for possession of an instrument of crime. Finally, appellant argues that his double jeopardy rights were violated when the lower court denied his demurrer to the possession of an instrument of crime charge. Because we find no merit to these allegations, we affirm the lower court’s judgment of sentence.

As previously noted, appellant first contends that the judge’s comments to the venire denied him a fair trial and impartial jury. Specifically, appellant argues that the lower court’s statements minimized the seriousness of the instant case and the importance of the jury’s responsibilities. Appellant also argues that these comments improperly encouraged the jury to presuppose appellant’s guilt and aligned the lower court with the prosecution in the eyes of the jurors. Appellant contests four lower court statements. First, appellant argues that lower court improperly commented on the appellate rights of convicted persons. Second, appellant states that the lower court improperly stated that many defendants in his courtroom were convicted. Third, appellant argues that the lower court judge improperly informed the jury of his former employment as a prosecutor. Finally, appellant states that the lower court improperly commented on how quickly the instant action would proceed as a bench trial as opposed to a jury trial.

Reviewing the province of judges, our supreme court has declared that a judge has a duty “to insure that his conduct is ‘above reproach,’ or minimally, is not prejudicial.” Commonwealth v. Hammer, 508 Pa. 88, 96, 494 A.2d 1054, 1058 (1985) (citation omitted). Our review of the jury selection transcripts demonstrates that the conduct of the lower court in the case sub judice was not prejudicial to appellant. Pertinent excerpts of the judge’s comments to the venire follow:

The court: Thank you. Members of the panel, I use this occasion now to kill the clock. Have a little fun with you. Maybe rap a little. Tell you what is going on now. This is the time when lawyers do their thing. The piece of paper is going to be passed back and forth between Mr. Bookman and Mr. Means. They are going to write down strike or accept, strike or accept. They get seven peremptory challenges. Not eight. Seven. They get an unlimited number of challenges for cause. It’s a very exact science. All kinds of books have been written about it. I never understood it. I was prosecutor years ago. I was an original appointee here years ago with a man by the name of Richardson Dilworth and served ten years, then ten years in my own practice. I was always a maverick bucking some political party. I ran four times and the fifth time you made a mistake and you elected me. Then you retained me again some three or four years ago. But this is a job and if you ask me how they do it, I don’t know. I used to flip a coin. I am sure Mr. Means and Mr. Bookman have a better technique than that.
Here is your chance to ask a judge a question. Don’t ask me about the case because I don’t know anything. If I did I would not tell you. But ask me anything that you see or hear on TV or radio or in the newspapers about the courts or about the system or criminal justice. And I learn from you an awful lot. Come on. You must be wondering something. You are stuck here today. You may as well — I have not taken an envelope in quite awhile as far as I know. Let’s see how we can make out. Come on, somebody.
Juror: Are all judges as informal as you are?
The court: They think that I’m crazy. But I don’t care. I just find that jurors when they go out to do their thing are so intense, do such a marvelous job, that anything that can relax them I think is preferable. I don’t think that justice is going to by any means necessarily prevail in an overly ritualistic fashion. I never have buttoned my robe in 14 years. I wouldn’t know how. And don’t hold this against my other colleagues. They are very nice people. Thank you. But that’s the way I am. Question? I am pretty much that way in everything. When I come to work I wear a jacket and cowboy hat.
Juror: What are your duties after four o’clock?
The court: Stick around today. Why—
The court crier: Seven tonight. I need a lunch break already.
The court: He gets paid for doing that, too. Why, frankly I have been a judge for I told you 14 years. I have a large number who have been convicted. And everyone who is convicted has the right to appeal. Everybody does. And the first appeal is to me. And so it’s a very complicated process. All the notes of testimony have been transcribed. I get a presentence report, psychiatric report. The sentencing process, assuming I hear the argument and deny any motions, say that I don’t see any basis for a new trial, I then go ahead and sentence. That could take a long, long time. Then there were perhaps arguments or parole violations. Also as a judge I perform more weddings than all the priests, deacons, and rabbis and all the judge[s] put together in Philadelphia. I do. I don’t know why, but I do. And it takes a lot of time. I am involved in lots pf other things, writing and so forth. But we like to keep our deferred matters that I set for the afternoon because a lot of people have to come together at one time and it’s very difficult to — they may have to be in other courts, and rather than strip them from other courtrooms we save that to the end of the day. That could run late.
Juror: If you disagree with a jury’s verdict are you allowed to overturn that?
The court: Our appellate courts intentionally make it difficult. They say I am not to substitute my judgment in a factual judgment in a factual issue for that of a jury. And for a judge to overturn a verdict of a jury, say, they convict him and notwithstanding the verdict I — it’s almost — not that it’s impossible, but almost impossible. The sanctity of the jury’s decision is something that stands there. To say if there’s error in the trial, that’s something else. I have had all kinds of interesting things. But short of that our appellate courts very properly say you have an enormous burden, Judge Halbert, to set aside that jury’s decision. Enormous. I think that’s right. As it should be. Question? Good Question. Juror: How many cases do you hear in a year?
The court: How many cases a year? Well, actually this case will be very short they tell me, very fast. I could get into a homicide where there is the death penalty aspect and jury selection I would bring you in one at a time. That could take not just days and weeks but months just in a jury selection. But on average, four, five a month jury cases. Unless you get into — and I tried, let’s say, everything from murders, robberies, rapes, on down. But it’s an average unless you get into a protracted case. The first eight years I was a judge I say as a judge without a jury, where he’s the fact finder as well. He’ll determine guilt or innocence and so forth. I did that. A case like this would probably take me or any other judge maybe ten minutes to half an hour at the most to try. The jury process is a cumbersome procedure. And other things can cause things to be protracted that we have no control over. Those who are selected for the jury, hold me to this: if time appears to be wasted and you come in and we don’t get to work on time, I can’t usually tell you why we are delayed. But you make me account for every minute when the case is over. I promise you I will. I can’t usually tell you during the course of the trial. But at the end I’ll account for every minute. I think you’re entitled to know that. Questions?

Reviewing this unusual colloquy, it is also apparent that the lower court’s comments did not reveal a minimization of the seriousness of the instant case or the jury’s responsibilities. Instead, the judge attempted to explain the role of the court and its internal proceedings. We do not find, therefore, that the judge’s comments, unrelated to the issues of the instant case, constituted prejudicial conduct. Thus, we reject appellant’s contention that he was denied a fair trial and impartial jury.

Second, appellant argues that the court erred in refusing to quash the information charging him with burglary. The burglary information was deficient, appellant concludes, because it failed to specify an ulterior crime, i.e., the specific crime underlying the burglary. Appellant argues that this procedure is fundamentally unfair and deprived him of his right to be notified of the charges against him in accordance with the Sixth Amendment of the United States Constitution as well as Article 1, Section 9 of the Pennsylvania Constitution. In contrast, the Commonwealth argues that it is not necessary for the burglary information to specify the ulterior crime. Both parties agree that the burglary information did not include an ulterior crime. For the reasons outlined below, we reject appellant’s contentions.

While the Commonwealth proffers prior cases wherein we stated that a burglary information need not specify an ulterior crime, appellant cites the Third Circuit Court of Appeals decision of Government of Virgin Islands v. Pemberton, 813 F.2d 626 (3rd Cir.1987) as controlling. In Pemberton, the Court of Appeals held that a Virgin Islands’ burglary information was violative of the Sixth Amendment of the United States Constitution because it failed to contain an essential element of the offense to be charged. With regard to the precedential value of decisions of the Third Circuit Court of Appeals involving federal questions, the Pennsylvania Supreme Court declared in a previous case that while:

the Supreme Court of the United States is the ultimate, arbiter, in view of the widespread confusion in this area of law and the failure of the Supreme Court to clarify it, the decision of the Third Circuit Court of Appeals is on this matter, for all practical purposes, the ultimate forum in Pennsylvania. If the Pennsylvania courts refuse to abide by its conclusions, then the individual to whom we deny relief need only to “walk across the street” to gain a different result. Such an unfortunate situation would cause disrespect for the law. It would also result in adding to the already burdensome problems of the Commonwealth’s trial courts, which look to us for guidance. Finality of judgments would become illusory, disposition of litigation prolonged for years, the business of the courts unnecessarily clogged, and justice intolerably delayed and frequently denied
Consequently, in order to alleviate and correct a regrettable situation, the clear indication for this Court is to accept and follow the decision of the Third Circuit on this matter until some further word is spoken by the Supreme Court of the United States.

Commonwealth v. Negri, 419 Pa. 117, 122, 213 A.2d 670, 672 (1965). More recently, our supreme court has reiterated this approach, acknowledging that:

[w]hen the United States Court of Appeals for the Third Circuit has held certain practices or procedures to violate federal constitutional rights, its decision will be accepted and followed by the courts of this Commonwealth until the United States Supreme Court has spoken on the issue.

Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 620 n. 5, 375 A.2d 1285, 1288 n. 5 (1977) (citations omitted). While Pemberton may be instructive, however, we need not determine whether we are bound by this decision since our case is easily distinguishable from the Virgin Islands case. See Commonwealth v. Johnson, 507 Pa. 27, 36, 487 A.2d 1320, 1324 (1985) (wherein our supreme court declared that the Johnson case was distinguishable from a Third Circuit Court of Appeals decision due to the unusual facts of the third circuit case).

In Pemberton, the Government of the Virgin Islands appealed from an order of the District Court of the Virgin Islands, Appellate Division, which affirmed an order of the Territorial Court of the Virgin Islands. Pemberton, 813 F.2d at 627. In its order, the territorial court dismissed a burglary information against appellee Pemberton on the grounds that a delay in bringing him to trial violated his Sixth Amendment right to a speedy trial. Id. The Court of Appeals reversed this dismissal, however, finding that appellee Pemberton’s right to a speedy trial was not violated. Id. at 627-30. But the court also found that the pertinent information was inadequate with regard to constitutional requirements. Id. at 630-33.

The burglary information in Pemberton charged appellant as follows:

On or about the 28th day of November, 1983 in the Virgin Islands of the United States, Judicial Division of the United States, Judicial Division of St. Croix, ARTHUR PEMBERTON, did, with intent to commit an offense therein, breaks and enters a building, that being Marriot In Flight Services Office, located at the Alexander Hamilton Airport, namely by breaking of the lock of an outer iron security gate, and removing the door knob of said door, thereby gaining entry, all in violation of 14 V.I.C. § 444(1).

Id. at 630, n. 4. This information, like the document in the case sub judice, did not contain an ulterior crime. The crime of burglary in Pemberton was defined as follows:

Whoever—
(1) with intent to commit an offense therein, breaks and enters a dwelling house, building, or structure or any part thereof;
... is guilty of burglary in the third degree____

14 V.I.C. § 444(1) (emphasis added).

In reviewing the sufficiency of the aforementioned information, the Pemberton court, citing Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), announced that the Sixth Amendment of the United States Constitution required the court to ascertain:

[F]irst, whether the indictment or information contains the elements of the offense intended to be charged ‘and sufficiently apprises the defendant of what he must be prepared to meet,’ and, second, ‘whether the record shows with accuracy to what extent he may plead a former acquittal or conviction’ in the event of subsequent prosecution.

Id. at 631 (quoting Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962)). Most importantly, the court noted that an “information may set forth the offense in the words of the statute itself only if ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.’ ” Id. (citations omitted).

The Pemberton court determined that the information charging appellant with breaking and entering a building “with [the] intent to commit an offense therein” failed to adequately set forth an essential element to the crime of burglary. Id. at 632. The court explained that this essential element was the ulterior crime, i.e., the specific offense underlying the burglary. Id. The burglary information failed to articulate the offense that appellee allegedly intended to commit upon his illegal entry. Id. at 631-32. Without notice of this essential element of the crime, the court reasoned, appellant would be “substantially limited in the preparation of a defense.” Id. at 632. The court in Pemberton concluded, therefore, that the information failed to meet the first inquiry mandated by Russell and must be deemed inadequate. Id.

Reviewing Pemberton, it appears that the pertinent defendant was charged solely with third degree burglary. Conversely, appellant in the case sub judice was initially charged with attempted theft and possessing an instrument of crime as well as burglary. We cannot state, therefore, that appellant was without notice of the ulterior crime that the Commonwealth sought to prove in conjunction with the burglary charge. As a result, the potential evil that Pemberton seeks to prevent, i.e., inadequate notice unfairly limiting a defendant’s preparation of his or her defense, does not exist in the instant case. Therefore, we reject appellant’s contention that the burglary information was constitutionally defective.

Third, appellant contends that the evidence proffered was insufficient to sustain his conviction for possession of an instrument of crime. Citing our decision in Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 420 A.2d 674 (1980), appellant proclaims that a tire iron may not constitute an instrument of crime under the relevant section of the crime code. We disagree.

In the case sub judice, appellant was apprehended while illegally entering a home. In contrast, the appellant in Cavanaugh utilized a tire iron to commit an assault. Thus, while the tire iron utilized by the appellant in Cavanaugh did not constitute a criminal instrument under the pertinent statute, it is not axiomatic that a tire iron never constitutes a criminal instrument.

Our legislature has defined possessing instruments of crime in the following manner:

(a) Criminal instruments generally. — A person commits a misdemeanor of the first degree if he possesses any . instrument of crime with intent to employ it criminally.
(c) Definitions. — As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Instrument of crime.”
(1) Anything specially made or specially adapted for criminal use; or
(2) Anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

18 Pa.C.S.A. § 907 (emphasis added).

Reviewing the statute, we find that the tire iron utilized in the instant case constitutes an instrument of crime as defined under subsection (2) of the aforementioned crime. We have previously noted that a tire iron is a common burglary tool. See, e.g., Commonwealth v. Herman, 227 Pa.Super 326, 323 A.2d 228 (1974) (wherein we noted that a tire iron and a large screwdriver are common burglary tools); Commonwealth v. Dalahan, 262 Pa.Super. 615, 396 A.2d 1340 (1979), (wherein we affirmed a conviction for attempted burglary where the appellant used a tire iron to pry open a luncheonette window). Thus, we also reject appellant’s argument concerning this issue.

Finally, appellant alleges that his double jeopardy rights were violated when the trial court denied his demurrer to the possession of an instrument of crime charge after initially granting it. Our review of the lower court transcript reveals, however, that the court never issued a ruling granting the demurrer. Instead, the court only stated that it was “inclined to grant” the demurrer. The court reconsidered this “inclination” a mere five minutes later and denied the demurrer. In addition, our review of the relevant possession of instrument of crime information does not reveal any documentation of this allegation. Therefore, since appellant’s demurrer was never granted, we find that his double jeopardy rights were not violated.

Accordingly, appellant’s judgment of sentence is affirmed.

DEL SOLE, J., concurs in the result.

      . While this argument was not included in appellant’s original post-verdict motions or addressed in the lower court opinion, we do not deem it waived for the purpose of appellate review. “[A] defendant may be granted leave to file additional reasons for a new trial or in arrest of judgment but this is a matter of discretion with the trial court." Commonwealth v. Pyett, 372 Pa.Super. 291, 294, 539 A.2d 444, 445 (1988). See Pa.R.Crim.P., Rule 1123(a), 42 Pa. C.S.A. In the case sub judice, appellant proffered this argument in his supplemental post-verdict motions. Reviewing the post-trial motions hearing transcript, we find that the lower court addressed and rejected this contention on its merits. Thus, this issue is preserved for our review.

      . In conjunction with his argument concerning the judge’s comments regarding prior employment as a prosecutor, appellant notes that the judge also told the venire that the courtroom "used to be the District Attorney’s Office.... We only had 26 of us then. There are over 250 prosecutors now. That is back in the 50’s." Appellant suggests that this statement prejudicially aligned the judge with the prosecution in the eyes of the venire. We disagree. Our review of the transcript reveals that this statement was only tendered by the judge to describe the improvements made in the physical condition of the courtroom facility during his tenure as a judge. Thus, viewed in context, this comment did not constitute prejudicial conduct on the part of the lower court judge.

      . The Sixth Amendment of the United States Constitution provides, in relevant part:
      In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.
      Article 1, Section 9 of the Pennsylvania Constitution provides, in relevant part:
      In all criminal prosecutions the accused has a right to ... demand the nature and cause of the accusation against him____

      . See Commonwealth v. Vazquez, 328 Pa.Super. 86, 476 A.2d 466 (1984); Commonwealth v. Franklin, 306 Pa.Super. 422, 452 A.2d 797 (1982).

      . While we find Pemberton inapplicable to this case, we question the logic underlying the Court of Appeals decision. In a fact pattern such as that in the instant case, it would be difficult if not impossible to ascertain the ulterior crime in cases wherein the prosecution does not charge the suspect with an additional crime. For instance, in the case sub judice appellant was apprehended while illegally entering a residence, tire iron in hand. Since the police officer in this case reacted promptly and effectively to prevent further illegal activity, appellant could not fulfill his criminal intent. Yet, it is apparent to even a casual observer that such an individual has some criminal intention when illegally entering a residence. Under the Pemberton approach, however, the prosecution is forced to predict the offender’s subjective criminal intent or abandon pursuing a burglary conviction due in spite of the effective crime prevention of the police department. We fail to see the logic in requiring the prosecution to engage in such prognostication.


author: HOFFMAN, Judge:

text:
    564 A.2d 1296
    Margaret T. McDONALD, Appellant, v. The MARRIOTT CORP. t/a Charley’s Place and Quincy’s.
    Superior Court of Pennsylvania.
    Submitted May 24, 1989.
    Filed Oct. 10, 1989.

      Phillip M. Gilligan, Philadelphia, for appellant.
    Audrey L. Jacobsen, Philadelphia, for Marriott Corp., appellee.
    Edward L. McCandless, Jr., Philadelphia, for Quincy’s, appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order dated November 28, 1988, granting appellee-Marriott Corporation’s motion for summary judgment. Appellant contends that the court below erred in entering its order. For the reasons that follow, we affirm the order below.

On November 1, 1985, appellant filed a complaint against defendants, Marriott Corporation (“Marriott”), and “Quincy’s,” for damages she sustained as a result of a single-car accident. In her complaint appellant alleged that defendants were liable because they violated Pennsylvania’s Dram Shop Act, 47 Pa.S.A. § 4-493, by serving her alcoholic beverages while she was visibly intoxicated, proximately causing her injuries. Defendants answered and filed cross-claims against each other, both denying that appellant was served alcoholic beverages at their establishments while visibly intoxicated. Depositions of appellant and witnesses Thomas Field and John McCoy were taken on September 24, 1987, and December 8, 1987. Thereafter, Marriott filed a motion for summary judgment alleging that the evidence adduced during discovery revealed no facts supporting a dram shop action against them. Appellant and co-defendant Quincy’s opposed the motion. On November 30, 1988, the trial court granted the motion, dismissing all claims against Marriott with prejudice. This appeal followed.

Appellant contends that the trial court erred in granting summary judgment in favor of Marriott because a factual issue exists as to whether she was served alcoholic beverages at Charley's Place while she was visibly intoxicated. A motion for summary judgment may properly be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Hedlund Mfg. Co. v. Weiser, et al., 517 Pa. 522, 539 A.2d 357 (1988); see also Gabovitz v. State Auto Ins. Ass’n., 362 Pa.Super. 17, 523 A.2d 403 (1987); Pa.R.Civ.P. 1035(b). Summary judgment may be entered only in cases that are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983). Additionally, the record must be examined in the light most favorable to the non-moving party, accepting as true all well-pleaded facts in their pleadings and giving that party the benefit of all reasonable inferences drawn therefrom. Hower v. Whitmak Assoc., 371 Pa.Super. 443, 445, 538 A.2d 524, 525 (1988); Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987). Moreover, in summary judgment proceedings, the court’s function is not to determine the facts, but only to determine if a material issue of fact exists. French v. United Parcel Serv., 377 Pa.Super. 366, 372, 547 A.2d 411, 414 (1988). Thus, an order granting a motion for summary judgment will not be reversed unless the court below has committed an error of law or clearly abused its discretion. Ackler v. Raymark Indus. Inc., 380 Pa.Super. 183, 185-86, 551 A.2d 291, 292 (1988); Jones v. Keystone Ins. Co., 364 Pa.Super. 318, 321, 528 A.2d 177, 179 (1987); Miller v. Federal Kemper Ins. Co., 352 Pa.Super. 581, 585-86, 508 A.2d 1222, 1225 (1987).

The Pennsylvania Dram Shop Act states in relevant part:

It shall be unlawful—
(1) For any licensee ... or an employe, servant, or agent of such licensee ... to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated....

47 Pa.S.A. § 4-493(1). A violation of the requirements of this statute is deemed negligence per se, and if the violation is the proximate cause of the plaintiff’s injuries, then the defendant is liable. Couts v. Ghion, 281 Pa.Super. 135, 141, 421 A.2d 1184, 1187 (1980) (quoting Majors v. Brodhead Hotel, 416 Pa. 265, 268, 205 A.2d 873, 875 (1965)). Thus, in order for appellant to recover, she must prove two things: (1) that appellee served her alcoholic beverages while she was visibly intoxicated and (2) that this violation proximately caused her injuries.

In granting appellee’s motion for summary judgment, the trial court found that appellant had failed to allege sufficient facts to raise a genuine issue of whether she was visibly intoxicated when appellee served her alcoholic beverages. In this regard, the trial court noted:

... [Appellant] was deposed and testified to the effect that there were no visible signs of any intoxication while she was at Charley’s place. Further, neither [appellant] nor the other defendant, Quincy’s, has produced any evidence that [appellant] was served alcoholic beverages while visibly intoxicated. In fact, [appellant’s] response to the Motion [for summary judgment] does not contend that [she] was served while visibly intoxicated; she contends only that she was “legally intoxicated while a patron in the defendants’ premises.”

Trial Court Opinion at 2. Our review of the record leads us to agree with this assessment.

The only evidence that arguably could support appellant’s claims that she was visibly intoxicated was her own deposition testimony. Appellant stated that, on March 3, 1984, she and some friends met at Charley’s Place to celebrate the retirement of a co-worker. Appellant had eaten lunch and dinner before arriving. While at Charley’s Place, she had about four bloody marys that contained little alcohol and about four beers between the hours of 5:30 p.m. and 10:00 p.m. Appellant said she switched to beer because she was getting a little drunk, loud and chatty. She bumped into a door while going to the lady’s room, missed the ashtray when flicking her cigarette ashes, and dropped her clutch purse. At 10:00 p.m., appellant left Charley’s Place with friends and drove to Quincy’s which was “right across the street.” She stated that she had no trouble driving to Quincy’s, and that, between bars, she smoked a marijuana cigarette with several of her friends. At Quincy’s, appellant consumed three to four beers from the time she arrived until 2:30 a.m. when she left for home. It was when she was driving home, approximately four to four-and-a-half hours after leaving Charley’s Place, that the accident occurred.

Appellant argues that, because she stated in her deposition that she was loud and talkative, that she bumped a door way going to the lady’s room, that she dropped cigarette ashes on the floor, and that she dropped her clutch purse, she has raised a question of fact regarding whether appellee served her alcoholic beverages while she was visibly intoxicated. Appellant, however, did not state whether she exhibited this behavior before she was served her last drink or if anyone, let alone an employee of appellee, saw her exhibit any such behavior. When asked whether anyone at the bar asked her to keep quiet, or asked her to leave, or if any of her friends asked her to stop drinking, appellant replied in the negative. Moreover, appellant did not offer the testimony of any witness to corroborate her version of the events; thus, even if she thought she was visibly intoxicated, there is no evidence that her intoxication was apparent to anyone else. In short, there is no factual support for appellant’s opinion that she was served alcoholic beverages while visibly intoxicated. Accordingly, we agree with the trial court that there was insufficient evidence regarding whether she was visibly intoxicated to allow this case to go to a jury.

Finally, we note that the facts alleged in this case are far weaker than the facts alleged in the cases appellant relies upon to support her claim that sufficient circumstantial evidence exists to warrant the submission of her case to a jury. For example, in Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980), this Court held that sufficient circumstantial evidence existed to submit the issue of visible intoxication to the jury where the record contained evidence that appellant “had consumed a substantial amount of alcohol before being served his last drink; that [appellant] had driven erratically and without using his car’s lights in the dark; and that [appellant] had appeared to be intoxicated to the investigating police officer,” in addition to evidence that an accident had occurred. Id. See also Speicher v. Reda, 290 Pa.Super. 168, 434 A.2d 183 (1981) (sufficient circumstantial evidence existed to submit question of “visible intoxication” to jury where record contained (1) police report describing motorist as reeking of alcoholic beverages, having trouble standing, having slurred speech, and staggering gait, and unaware of hitting anyone, (2) testimony of accident scene photographer describing motorist as visibly drunk, using profanity and interfering with photographer’s taking of pictures, (3) motorist’s guilty plea for DUI).

For the foregoing reasons, we agree with the trial court that no genuine issue of material fact exists as to whether appellant was served alcoholic beverages at Charley’s Place while she was “visibly intoxicated” and, accordingly, appellee was entitled to judgment as a matter of law. Thus, we affirm the order below.

Order affirmed.

      . The complaint actually was filed against "Charley's Place," a division of Marriott Corporation.

      . In its brief, appellee refers to the depositions taken of two witnesses who were with appellant on the night in question. Appellees argue that these witnesses indicate that appellant did not appear visibly intoxicated. Appellees also cite to a report submitted by Dr. Fine, M.D., a psychiatrist, who concluded from the information made available to him, that appellant was not visibly intoxicated while drinking at Charley’s Place. Because this evidence was not made part of the record in the lower court, it cannot be considered by this court. Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974); see also Pa.R.A.P.1921.

      . In the case at bar, the fact of the occurrence of an accident is of minimal importance because, it occurred hours after appellant left Charley’s Place, and after she had smoked marijuana and consumed more beer.