author: MONTEMURO, Judge:

text:
    482 A. 2d 1128
    COMMONWEALTH of Pennsylvania v. David KAVANAUGH, a/k/a Larry Paine, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 12, 1983.
    Filed Oct. 12, 1984.

      Douglas H. Johnson, Public Defender, Norristown, for appellant.
    Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Montgomery County revoking the order placing the appellant on probation and reimposing sentence.

On January 26, 1981, the appellant pled guilty to charges of theft of movable property, theft by receiving stolen property, and criminal attempt. He was sentenced to pay a fine of twenty-five hundred dollars ($2,500.00), pay one-fifth of the cost of prosecution, and undergo state imprisonment on the theft charges for not less than two and one-half (2V2) years nor more than five (5) years; on the attempt charge, he was sentenced to state imprisonment for not less than two and one-half (2V2) years nor more than five (5) years. However, the court suspended both sentences and, in lieu thereof, placed the appellant on two (2) consecutive five (5) year periods of probation subject to the condition that he pay the aforementioned costs of prosecution and fine as well as proportional restitution.

On November 29, 1981, the appellant was arrested by the Philadelphia Police and charged with violating the Controlled Substance, Drug, Device and Cosmetics Act. Thereafter, on December 8, 1981, the appellant reported to his probation officer, at which time he was placed under arrest for violating his probation and was given a copy of the violations of probation charged against him by his probation officer.

On January 19, 1982, the appellant appeared in court for a Gagnon I hearing to determine whether there was probable cause to believe that he committed a violation of his probation. The lower court, after hearing the testimony of state probation officer, Earl M. Pinkett, found that the Commonwealth had made out a case for Gagnon I purposes and scheduled a Gagnon II hearing. On March 15, 1982, a Gagnon II hearing was held to determine whether the appellant substantially violated the conditions of his probation and also whether or not his probation should be revoked. After hearing the testimony of Mr. Pinkett, and of the appellant, the lower court found the appellant “in violation of [his] probationary sentence,” revoked his probation and sentenced him to one and one half (IV2) years to five (5) years state imprisonment to date from December 8, 1981. The lower court subsequently denied, without a hearing, appellant’s timely motion to modify sentence. This appeal followed.

The appellant raises the following issues:

(I) Did the lower court err in admitting, over objection, hearsay evidence at appellant’s Gagnon hearings?
(II) Did the lower court err by failing to articulate on the record the reasons for appellant’s sentence?
(Ill) Was the sentence imposed by the lower harsh and manifestly excessive under the circumstances?

Inspection of the record in this case discloses that only the first issue has merit. Consequently, we shall limit our discussion to that issue. The lower court’s disposition of the remaining issues is sufficient.

The appellant contends that before any hearsay evidence may be admitted at any Gagnon type hearing, the presiding judge must make a specific finding that there is good cause for depriving the defendant of his due process right to confront and cross-examine witnesses. Appellant’s brief at 5. The appellant further contends that at both Gagnon hearings the lower court improperly admitted over objection certain hearsay evidence without making a specific finding of good cause for not allowing confrontation. Appellant’s brief at 5-6. Appellant concludes that if all hearsay evidence so admitted is not considered, the only evidence remaining is the appellant’s alleged admission, which appellant contends may not by itself establish the corpus delicti, and therefore appellant’s probation cannot be revoked. Appellant’s brief at 7.

The United States Supreme Court recognized in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) that although revocation of probation like revocation of parole is not a stage of criminal prosecution, it does entail a loss of liberty which requires that a probationer be afforded certain minimal due process safeguards. The probationer is entitled to two hearings: (1) a preliminary hearing to determine whether there is probable cause to believe that he has committed a violation of his probation, and (2) a more comprehensive hearing prior to making the final revocation decision. Gagnon v. Scarpelli, supra; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). See Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616 (1975). These hearings are to comport with the following requirements:

At the preliminary hearing [Gagnon I], a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decision maker, and a written report of the hearing. Morrissey v. Brewer, supra, at 487 [92 S.Ct. at 2603], 33 L.Ed.2d 484. The final hearing [Gagnon II] is a less summary one ... but the “minimum requirements of due process” include very similar elements:
“(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.” Morrissey v. Brewer, supra, 408 U.S. at 489, 92 S.Ct. at 2604, 33 L.Ed.2d 484.

Gagnon v. Scarpelli, supra, 411 U.S. at 786, 93 S.Ct. at 1761.

The conditional right to confront adverse witnesses, afforded in a Gagnon I hearing is not the same as the right to confront adverse witnesses afforded in a Gagnon II hearing. In the former, the hearing officer need not specifically find good cause for not allowing confrontation. In the latter, although it is not such a highly formal procedure that it must be conducted in accordance with the entire gamut of evidentiary and procedural rules employed in a criminal trial, Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973); Commonwealth v. Holmes, 268 Pa.Super. 396, 408 A.2d 846 (1979); Commonwealth v. Rossetti, 255 Pa.Super. 524, 388 A.2d 1090 (1978); the hearing officer is required to make a finding that there is good cause for not allowing confrontation before hearsay evidence may be admitted, Morrissey v. Brewer, supra; Commonwealth v. Rossetti, supra; Commonwealth v. Davis, supra.

By way of illustration, in Commonwealth v. Davis, supra, 234 Pa.Superior Ct. at 45, 336 A.2d at 624, where a single hearing was held, this court, in determining whether that hearing represented a Gagnon I or Gagnon II hearing, maintained the hearing in question did not represent a Gagnon II hearing because it did not satisfy the requirement that “the hearing officer specifically find[] good cause for not allowing confrontation” before the right to confront and cross-examine adverse witnesses may be abridged. This court further maintained that the hearing in question did represent a Gagnon I hearing because the testimony presented did give the hearing officer probable cause to find that the appellant therein had violated his probation. With this distinction in mind, we shall now examine separately the hearings in the case sub judice to determine whether the lower court erred in allowing certain testimony to be admitted into evidence over the objection of defense counsel.

Gagnon I Hearing

The sole witness presented at the Gagnon I hearing, appellant’s probation officer Earl M. Pinkett, testified for the Commonwealth. On direct examination Mr. Pinkett identified the Commonwealth’s exhibit C-l as a copy of the charge which he had placed against the appellant, and indicated that appellant’s signature was affixed thereto. This document stated in pertinent part:

You are charged with the following violation(s) of your special probation/parole:
Rule # 5-A: Abstain from the unlawful possession or sale of narcotics and dangerous drugs and abstain from the use of controlled substances within the meaning of the Controlled Substance Drug Device and Cosmetic Act, without a valid prescription.
New Criminal Charges: On 11/29/81 you were arrested by the Philadelphia Police and charged with, K/I Poss. [knowing or intentional possession] of Controlled Sub., Man. W/I [manufacture with intent to deliver].

Commonwealth Exhibit C-l. Mr. Pinkett later testified that on “December the 8th, 1981, the defendant reported to the district office, at which time he was placed under arrest and given a copy of the [charges.]” N.T. January 19, 1982, p. 4. He further testified that “the technical violation stemmed from the arrest of ... November the 29th of ‘81.” N.T. January 19, 1982, p, 4.

The following is in pertinent part what transpired at the hearing when defense counsel raised his sole objection to the testimony of Mr. Pinkett:

[By MR. IACOVITTI, for the Commonwealth]
Q. What was the suspected drug?
A. According to the information received—
MR. LANDIS: I’m going to object____to hearsay.....
MR. IACOVITTI: ... this is a Gagnon I ... hearsay is permissible.
THE COURT: That’s correct. Objection overruled.
A. According to the information received on the arrest of November the 19th, 1981, the defendant was charged with knowingly and being in possession of a controlled substance with intent to deliver, delivery of a controlled substance, and he also admitted to this charge to me on December the 8th, 1981.

N.T. January 19, 1982, p. 5.

On cross-examination by defense counsel, Mr. Pinkett reaffirmed his earlier testimony that appellant had admitted to him that he had possession of a controlled substance when the police arrested him. N.T. January 19, 1982, p. 6. Moreover, Mr. Pinkett testified that appellant “told me that he had speed in his possession.” N.T. January 19, 1982, p. 6. After cross-examination, the notice of violation signed by appellant (Commonwealth exhibit C-l) was admitted into evidence without objection.

The testimony adduced at the Gagnon I hearing was more than sufficient to give the court the probable cause to find that appellant committed violations of his probation. In view of the requirements set forth in Gagnon v. Scarpelli, supra, and Morrissey v. Brewer, supra, we hold that the lower court did not err in admitting, over defense objection, testimony at the Gagnon I hearing as to what the suspected drug was.

Gagnon II Hearing

At the Gagnon II hearing, the Commonwealth’s sole witness was once again state probation officer, Earl M. Pinkett. During direct examination, Mr. Pinkett identified the appellant and indicated that he had been one his probationers. Mr. Pinkett testified that “[t]he technical violation was Rule Number 5, knowingly and in possession of an alleged controlled substance.” N.T. March 15, 1982, p. 3. When the prosecutor further inquired into what the alleged controlled substance was, the following transpired:

Q. Was the substance analyzed?
A. Yes it was.
(A police report was marked for identification as Commonwealth’s Exhibit Number 1.)
BY MR. SILOW:
Q. I show you what is marked Commonwealth’s exhibit Number 1 and ask you if you can identify it.
A. Yes. This is the police report received by the agency.
Q. Does it indicate what the substance was analyzed as?
A. Analyzed—
MR. CICCITTO: I am going to object as hearsay. There is no certification that this is a correct copy of the police record. The lab technician is not going to appear here to testify.
THE COURT: Your objection is noted and overruled.
MR. CICCITTO: Thank you, Your Honor.
BY MR. SILOW:
Q. Please continue.
A. It indicates that one plastic packet contained one hundred eight milligrams of a white powder which contained methamphetamine and a magnesium salt. Methamphetamine is a controlled substance, Schedule 2.
Q. That is signed by the chemist, is that correct?
A. Yes.
MR. SILOW: I move the admission of C-l.
THE COURT: It is admitted.
MR. CICCITTO: I want to reserve my objection.
THE COURT: You are granted an exception.

N.T. March 15, 1982, p. 8-4.

Mr. Pinkett further testified that the appellant “was arrested on November 29th by the Philadelphia Police.” N.T. March 15, 1982, p. 5. When Mr. Pinkett was subsequently asked if he had discussed the charges with the appellant, he stated that “[the appellant] admitted to me on December 8th that he sold these alleged drugs to the arresting officer.” N.T. March 15, 1982, p. 6.

On cross-examination, defense counsel elicited that Mr. Pinkett: did not witness any of the events relating to appellant’s arrest on the drug charges; knew nothing with regard to the drugs themselves; had no idea of the “chain of custody” from the time the drugs were seized by police to the time they were analyzed by a chemist; had no independent basis for the crime itself; knew only that a prima facie case had been established against the appellant on the underlying charges and that there had not yet been a disposition in the Common Pleas Court.

At the conclusion of the Commonwealth’s evidence, the appellant made a demurrer to the evidence, which the lower court overruled. Thereafter, the defense did not put on any evidence as to the violation of probation itself, but the appellant did take the stand after the hearing judge indicated that he would sentence “today”. Appellant’s testimony related to the efforts he made to improve himself by way of going to school, trying to find employment, and trying to get into a drug treatment program. Appellant testified that he had been taking drugs for about a year and that all of his arrests “have been basically ... to get money to support ... [his] drug habit.” N.T. March 15, 1982, pp. 13-14. He also indicated that he had been accepted into a residential (in-patient) drug treatment program at the North Philadelphia Community Center conditioned on a stipulation by the Parole Board and Probation Department. On cross-examination of the appellant, it was brought out that his criminal record dates back approximately seven (7) years to 1975, well before he started having problems with drugs.

Based on all the evidence present at this hearing, the lower court found appellant to be in violation of his probationary sentence.

The appellant now contends the police report indicating that the substance confiscated from the appellant was methamphetamine, (Commonwealth’s Exhibit Number 1) and the testimony of Mr. Pinkett regarding the contents of said report were hearsay. To support this contention, appellant argues that Mr. Pinkett had no personal knowledge of what the drugs were, nor had he participated in preparing the report, and moreover, the copy of aforesaid report was not certified. Appellant also points out that the hearing judge merely “noted” defense counsel’s objection and overruled it without further comment. We agree with appellant that the report and Mr. Pinkett’s testimony concerning it were hearsay and our review of the record indicates that the hearing judge never did make a specific finding of good cause for admitting this hearsay evidence and concomitantly not allowing confrontation. Therefore, in view of the requirements enunciated in Gagnon v. Scarpelli, supra, and Morrissey v. Brewer, supra, we hold the lower court did err in admitting hearsay evidence at the Gagnon II hearing without making a specific finding of good cause for not allowing confrontation.

However, the lower court’s error in this regard was harmless because there was no prejudice to the appellant. The lower court had before it sufficient evidence independent of the hearsay to find by a preponderance of the evidence that the appellant had violated his probationary sentence. Specifically, the uncontradicted testimony of appellant’s probation officer that appellant admitted to him that he sold the drugs to the arresting officer and that appellant had been arrested on November 29, 1981, was sufficient to show appellant was more likely than not in violation of his probationary sentence.

Anticipating such a holding, the appellant argues in the alternative that even if the lower court did not consider the improperly admitted hearsay evidence, the only evidence remaining to be considered is his admission, which by itself may not establish the corpus delicti. In support of this argument, the appellant relies on Commonwealth v. Brushy, 219 Pa.Super. 54, 280 A.2d 826 (1971).

There is absolutely no merit to appellant’s argument concerning the applicability of the corpus delicti rule to Gagnon proceedings. The corpus delicti rule is not applicable outside of criminal prosecutions. As hereinbefore stated, revocation of probation is not a stage of criminal prosecution, but arises after the end of the criminal prosecution. Gagnon v. Scarpelli, supra, 411 U.S. at 781, 93 S.Ct. at 1759. Hence, the corpus delicti rule is not applicable here.

The Judgment of Sentence is affirmed.

      . 18 Pa.C.S. § 3921.

      . Id. § 3925.

      . Id. § 901.

      . Act of April 14, 1972, P.L. 233, No. 64, § 1, 35 P.S. § 780-101, et seq.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    482 A.2d 1133
    Joyce KLOPP, Administratrix of the Estate of Joseph Davis Joyce Klopp, Individually, and Irene Davis, Appellants, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued July 11, 1984.
    Filed Oct. 12, 1984.

      George W. Westervelt, Jr., Stroudsburg, for appellants.
    Phillip H. Williams, Stroudsburg, for appellee.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by appellants, Joyce Klopp, Administratrix of the Estate of Joseph Davis, Joyce Klopp, individually, and Irene Davis, from a summary judgment entered in the Monroe County Court of Common Pleas in favor of appellee, Allstate Insurance Company, (hereafter referred to as “Allstate”).

The record shows that Allstate issued to Joseph Davis an automobile insurance policy providing no-fault coverage pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act, (hereafter referred to as “No-Fault Act”), the Act of July 19, 1974, P.L. 489, No. 176, Act. I, § 101, 40 P.S. § 1009.101, et. seq. (Plaintiffs’ Interrogatories, Par. 3). This policy was in full force and effect on July 6, 1979, when Joseph Davis was killed in a head-on crash with another vehicle. (Plaintiffs’ Interrogatories, Par. 4).

At the time of his death, Mr. Davis was sixty-one years old. (Defendant’s First Interrogatories, Par. 1). Mr. Davis had been employed at Tobyhanna Army Depot, but, for ten years prior to his death, he had been receiving black lung disability benefits. (Defendant’s First Interrogatories, Par. 2, 15).

The sole issue presented on appeal is whether the estate of a deceased victim is entitled to work loss benefits when the deceased victim was disabled and receiving disability payments.

The lower court ruled that the victim was not a wage earner at the time of his death. Thus, the estate had not incurred work loss. The court also ruled that Joseph Davis lacked reasonable expectancy of receiving wages from unemployment since, by reason of his total disability, he was removed from the labor market. Therefore, the estate incurred no loss of potential income as a result of his death. (Opinion, 3). We disagree.

First, at this stage, there is no dispute that the estate of the deceased victim is the proper party to recover work loss benefits. Freeze v. Donegal Mutual Insurance Company, 301 Pa.Super. 344, 447 A.2d 999, 1004 (1982).

However, the issue of whether there should be a recovery of work loss benefits under the No-Fault Act where the decedent was disabled has not been decided by an appellate court.

The lower court concluded that, as a disabled individual, Joseph Davis had no expectation of income which was lost by his death. It held that a person physically and totally disabled may not be classified as either “employed” or “unemployed”. Rather, the person is “unemployable”, which term is not used in the No-Fault Statute. (Opinion, 2). We find no support for this total disqualification of disabled persons in the No-Fault Act.

Work loss is defined by the No-Fault Act as:

(A) Loss of gross income of a victim, as calculated pursuant to the provisions of Section 205 of this Act; 40 P.S. § 1009.103 (Supp.1982).

Section 205 refers to three categories of victims: “regularly employed”, “seasonally employed”, and “not employed.” 40 P.S. § 1009.205. To be eligible for work loss benefits, the victim must fit into one of these three categories.

In the No-Fault Act, we find no separate category for the disabled. There is also no authority to show that it was the intention of the Legislature to deprive the disabled of the protection and the benefits of the No-Fault Act. Thus, each disabled claimant must fit into one of the three statutory categories.

It is clear that Joseph Davis was not “regularly employed” at the time of his death. He was disabled for ten years before his death and, during this time, collected black lung benefits. It is also clear that he was not “seasonally employed.” Therefore, in this case, the appropriate category is “not employed.”

In Minier v. State Farm Mutual Automobile Insurance Company, 309 Pa.Super. 53, 454 A.2d 1078 (1982), the court dealt with a similar unresolved situation. In Minier, the decedent was also not “regularly employed” or “seasonally employed” at the time of his death. He had retired from his employment.

In Minier, the court held that for those victims who are “not employed” at the time of the accident the following method is described:

(c) Not employed. — The work loss of a victim who is not employed when the accident resulting in injury occurs shall be calculated by:
(1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
(2) multiplying that quantity by the number of work weeks, or fraction thereof, if any, the victim would reasonably have been expected to realize income during the accrual period.

40 P.S. § 1009.205(c). The work loss section further provides:

(d) Definitions. — As used in this section: “Probable annual income” means, absent a showing that it is or would be some other amount, the following:
(B) the average annual gross income earned by the victim from work during the years in which he was employed, not to exceed three, preceding the year in which the accident resulting in injury occurs, for a victim seasonally employed or not employed at the time of the accident[.]

40 P.S. § 1009.205(d). Id., 309 Pa.Superior Ct. at 56, 454 A.2d at 1079.

The No-Fault Act does not require questions to be asked as to the reason why a victim is not employed at the time of the accident. “Nor does it make any distinctions, other than in the method of calculation, between those who have been laid off, those never employed, those who have quit, or those who have retired.” Rather, it provides for some recovery of work loss benefits for those who were unemployed at the time of the accident, depending on some probability of income forthcoming had the accident not happened. Id., 309 Pa.Superior Ct. at 56-57, 454 A.2d at 1079-1080.

The court in Minier also ruled that a rule barring survivors of deceased retired persons from collecting work loss benefits would be based on an assumption that all retired persons earn no further income. The court declined to find such a rule lurking within the No-Fault Act. Rather, the court felt that the true issue in such a situation is whether the individual retired person had any “probable” income or reasonable expectation thereof. It is a matter of proof in each case. Id., 309 Pa.Superior Ct. at 58, 454 A.2d at 1080.

Thus, a rule barring survivors of deceased disabled persons from collecting work loss benefits would be based on an assumption that all disabled persons earn no further income. Like the court in Minier, we decline to find such a rule lurking within the No-Fault Act. The issue in such a situation is whether the individual disabled person had any “probable” income or reasonable expectation thereof. Adequate proof must be presented in each case.

In the instant case, evidence was presented that Joseph Davis’ income prior to his death was realized in regular increments. During the last full year prior to his death, he received black lung disability payments of $388.50 per month. Calculating these payments on a weekly basis equals $89.65. (Affidavit in Support of Plaintiff’s Motion For Summary Judgment, Par. 8). This evidence stands as adequate proof that Mr. Davis had a “probable” income and reasonable expectation thereof.

The order of the trial court dated January 21, 1983, which granted Motion of Defendant for Summary Judgment, is therefore vacated. This case is remanded to the lower court for the entry of judgment in favor of Joyce Klopp, Administratrix of the Estate of Joseph Davis, Joyce Klopp, individually, and Irene Davis, and against Allstate Insurance Company for the proper amount of work loss benefits due appellants consistent with this opinion and the No-Fault Act.

Jurisdiction is relinquished.


author: PER CURIAM:

text:
    482 A.2d 1137
    Donald F. SWARTZ and Norma H. Swartz, his wife, Appellants, v. GENERAL ELECTRIC COMPANY, Sam Levin Furniture Company v. ROBERTSHAW CONTROLS COMPANY.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1983.
    Filed Oct. 12, 1984.
    Barbara Clements, Pittsburgh, for appellants.
    Patrick R. Riley, Pittsburgh, for Gen. Elec., appellee.
    Michael W. Burns, Pittsburgh, for Levin, appellee.
    William D. Geiger, Pittsburgh, for Robertshaw, appellee.
    Before ROWLEY, WIEAND and HESTER, JJ.

       327 Pa.Super. 58, 474 A.2d 1172.

   PER CURIAM:

In that appellants’expert, Timothy Pudlo, was not permitted to testify as to the cause of the short-circuit of the plug wire, which could have been the controls supplied to appellee General Electric Company by appellee Robertshaw Controls Company, our order to reverse and remand for a new trial encompasses all appellees.


text:
    482 A.2d 1277
    COMMONWEALTH of Pennsylvania v. Gordon L. GRAHAM, Appellant.
    Superior Court of Pennsylvania.
    Argued May 16, 1984.
    Filed Sept. 28, 1984.
    Petition for Allowance of Appeal Denied Feb. 25, 1985.

      Russell J. Heiple, Johnstown, for appellant.
    Dennis M. McGlynn, Assistant District Attorney, Ebensburg, for Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This case involves two appeals. The first is from the judgments of sentence for possession with intent to deliver marijuana (2V2 to 5 years), possession of LSD (6 months to 1 year), possession of a prohibited offensive weapon (2 to 5 years), receiving stolen property (2 to 5 years) and two (2) counts of making false reports to law enforcement officials (6 months to 1 year for each count). All sentences were ordered to be served consecutively. The second appeal is from the order holding that the $30,717 seized from the appellant’s, Gordon Graham’s, residence was “derivative contraband”, and, thus, was “to be deposited into the general treasury of Cambria County” after final disposition of the case on appeal. We affirm.

The facts, viewed in a light most favorable to the verdict-winner, consist of the following: On January 21, 1982, Pennsylvania State Trooper William A. Cipollini was introduced to “an interested citizen” by the District Attorney of Cambria County. An interview ensued in which the citizen-informant told the trooper that:

... one Gordon L. Graham, white male, approximately 28, who lived at 617 Powell, Cresson, Pennsylvania, in Cambria County was dealing in narcotics and controlled substances out of his residence. (N.T. 4/28/82 at 5)

After the informant had told the trooper that he had purchased marijuana from the appellant “a couple of weeks” prior to the 21st of January, 1982, he agreed to participate in a “controlled” buy from the appellant. This occurred on January 26th and was preceded by the informant being strip-searched to minimize the possibility that he might already be in possession of drugs. The trooper then drove the informant to the appellant’s residence and provided him with $20 to make whatever purchase he could with the money.

The informant was observed by the trooper entering the appellant’s residence and exiting within 5 minutes in possession of a plastic sandwich bag containing a vegetable matter. The substance was tested, found to be marijuana and was the basis for a warrant to search the appellant’s residence. Application for the warrant was made by Trooper Cipollini on the 27th of January, 1982, and was executed the following day at 6:30 a.m.

A 6-man search team, headed by Trooper Cipollini, announced their identity and purpose prior to gaining entry into the Graham residence. Thereafter, the police read the warrant to the appellant and his wife before advising them of their Miranda rights and commencing a search.

Trooper Cipollini found a brown paper bag in the dining room containing 2 plastic bags, each held approximately 1 pound of marijuana. Following this, the trooper positioned himself at the kitchen table and catalogued the items seized by other members of the search team. For example, 10 plastic bags containing 1 pound of marijuana each were found inside a garbage bag situated near the entrance way. From appellant’s second floor bedroom 11 one pound bags of marijuana, which, when added with the other marijuana found on the premises, added up to approximately 26 pounds. In the same room, the police discovered $33,162.88 in cash, $30,717.00 of which was in a brown vinyl bag next to appellant’s bed; 2,288 tablets of LSD in some dresser drawers; a .44 magnum Winchester rifle; a .12 gauge Smith and Wesson shotgun; a .12 gauge Fox double-barrel shotgun; and a Mettler electronic scale.

On the first floor, the police seized a sword-cane with a blade measuring 23V2 inches.

The inventory of the items was begun by Trooper Cipollini, but, because there was concern over appellant being arraigned within the time (6 hours) prescribed by law, the job was completed by Troopers Cunningham and Bellone while Trooper Cipollini drove the appellant to the State Police barracks in Greensburg for processing. Thereafter, Troopers Cunningham and Bellone transported the seized items to the barracks, and, along with Trooper Cipollini, reviewed the 3-page receipt/inventory. However, only Troopers Cipollini and Cunningham affixed their signatures to the document.

After the denial of appellant’s omnibus pre-trial motion, the case proceeded to trial and the facts just recounted were presented to the jury, along with the testimony of Chief of Police for Gallitzin Borough (Joseph S. Fox) to substantiate the false report charges.

In particular, Chief Fox recalled that on November 8, 1980, appellant’s sister reported that her brother’s trailer had been burglarized. Two weeks thereafter, the appellant supplied the Gallitzin police with the serial numbers of some of the firearms allegedly stolen, two of which were the .12 gauge double-barrel Fox shotgun and the .44 magnum Winchester rifle found by the troopers in their search of appellant’s residence on January 28, 1982.

On May 24, 1981, the appellant reported a second burglary. One of the items purportedly stolen was the .12 gauge Smith and Wesson shotgun seized by the troopers in the January 28th search.

In defense, the appellant testified that the drugs seized by the police were for personal use, the money found was accumulated through frugality, the items allegedly stolen were either replaced with similar weapons or simply not reported to the police upon recovery and the scale was purchased from an anonymous person in a bar for $150— the Mettler scale recovered from appellant’s home was identified as stolen from L. Robert Kimball & Associates by its soils technician, who used it and ordered its replacement, and valued the stolen one at $1,000-$1,500 as of January, 1982.

The jury, hearing and weighing all of the evidence, entered a verdict of guilty on all charges. Appellant was sentenced and a timely appeal was filed therefrom. Shortly thereafter, the notice of appeal initially filed was amended to include an appeal from the order of court finding, after a hearing, some of the seized money “derivative contraband” subject to confiscation by the Commonwealth.

On appeal, the appellant has preserved five issues for our review. The first two concern the lower court’s alleged error in failing to suppress the evidence seized because the police disregarded Pa.R.Crim.P. 2005(d) and 2009(a).

In particular, as to the Rule 2005(d) claim, the appellant directs us to the back of the search warrant application, which reads in relevant part:

* M This Warrant should be served as soon as practicable but in no event later than 3:00 □ A.M. .13 P.M. January 29, 1982 and shall be served only during daytime hours of 6 A.M. to 10 P.M.
Issued under my hand this 27 day of January, 1982 at 3:30 A.M. o’clock (issue time must be stated)
(SEAL) /s/ KENNETH BOBINE_
(Signature of Issuing Authority)
* The issuing authority should specify a date not later than two (2) days after issuance. Pa.R.Crim.P. 2005(d).

The appellant would have us find that the time period typed in by the District Justice “violated the two (2) day restriction of Pa.R.Crim.P. 2005(d)” and rendered the warrant “void when issued, regardless of when it was actually served.” To hold that the entry was a typographical error, the appellant argues, the lower court should have required some testimony from the issuing authority. Only then, appellant continues, could the lower court have been able to make such a finding of fact. We do not agree.

Subsection (d) of Rule 2005, which is specifically referred to by the appellant in his averment to this Court, “direct[s] that the search be executed within a specified period of time, not to exceed two (2) days from the time of issuance.” (Emphasis added) A review of the facts discloses that there has been no violation of this provision of Rule 2005.

At the suppression hearing, the affiant/Trooper Cipollini reconstructed the circumstances surrounding the securement of the warrant “at approximately 3:30 in the afternoon” on the 27th of January, 1982, as compared to the ante meridian time of 3:30 typed in by the District Justice. The lower court’s own questioning of the affiant confirmed this point.

Further, the affiant testified that the warrant was executed on the 28th of January, 1982, at approximately 6:30 a.m., a fact substantiated by appellant’s wife, Denise, who recalled the police arriving in the early morning hours (5:45 a.m.) of January 28th to serve the warrant.

Consequently, it being the sole function of the court hearing the evidence to rule on questions of credibility, we conclude that there is ample support in the record to substantiate the factual finding by the suppression court that the time affixed on the search warrant, reflecting when it was issued, was a typographical error not tantamount to a willful or deliberate act necessitating a suppression of evidence seized as a result thereof. Compare Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) and Commonwealth v. Iannaccio, 304 Pa.Super. 307, 450 A.2d 694 (1982), aff’d 505 Pa. 414, 480 A.2d 966 (1984) (Zappala, J., Opinion in Support of Affirmance, joined in by McDermott and Hutchinson, JJ.).

Moreover, we wish to note that the actions of the police, having occurred well within the time required by Rule 2005(d), conforms with the intent of the Rule and its admonition that “an unreasonable delay between the issuance and service of a warrant jeopardizes its validity.” Comment to Rule 2005, citing Commonwealth v. McCants, 450 Pa. 245, 299 A.2d 283 (1973). Further, we have no reason to hold other than that the police were acting in “good faith” in executing a warrant which was technically errata. See Massachusetts v. Sheppard, — U.S. —, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) (Affiant/officer acted in “good faith” in executing a warrant which was a form warrant for drugs to search for evidence in a murder; error of judge in failing to correct clerical mistake did not subject evidence seized to “exclusionary rule.”) and compare Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984) (Search warrant was defective where District Magistrate, who took policeman’s oath to the affidavit of probable cause, failed to sign the order issuing the warrant. Such a technicality cannot be ignored and the District Magistrate’s jurat on policeman’s affidavit of probable cause was no substitute).

Also, to upset the ruling of the suppression court because of the absence of the issuing authority’s testimony is unwarranted under the facts here. First of all, and most importantly, the affiant was present and testified as to the circumstances prompting the issuance of the warrant and the time frame within which this all took place. Thus, although Pa.R.Crim.P. 2003 precludes evaluation of evidence outside the warrant affidavits on the issue of probable cause, this constraint does not extend to other aspects of the warrant. Commonwealth v. Swint, 256 Pa.Super. 169, 389 A.2d 654 (1978). This Rule did not compel the suppression court nor does it require this Court to ignore Trooper Cipollini’s testimony that the warrant was secured at 3:30 p.m. on the 27th of January, 1982. Id.

The Commonwealth proved its case at the suppression by a preponderance of the evidence. If the issuing authority was so crucial to the case, as the appellant would have us believe, he could have been subpoenaed very easily by the accused. Cf. Pa.R.Crim.P. 144. Having failed to do so, appellant will not be heard to complain now.

As for appellant’s complaint that the failure of the person or persons responsible for cataloguing all of the items appearing in the inventory to sign it rendered it “unreliable”, contra to Pa.R.Crim.P. 2009(a) and subject to suppression, we take issue.

In Commonwealth v. Jones, 245 Pa.Super. 487, 369 A.2d 733 (1977), this Court was confronted with an appeal from the trial court’s suppression of evidence seized pursuant to a warrant signed by the officer who served it, but not verified (i.e., confirmed by oath or affirmation) by him before the issuing magistrate as required by the then applicable version of Rule 2009(a). We reversed the court below on the grounds that:

In the present case, defendant has not cited any authority enabling either the lower court or this court to order the suppression of evidence simply because the inventory prepared incident to seizure of the evidence was not verified. There is no rule conferring such authority. Neither does it appear that there has been any violation of defendant’s constitutional rights; defendant does not contend that the search warrant in question was obtained without probable cause, or that it was improperly executed. In these circumstances, we find ourselves unable to uphold the lower court’s order suppressing the evidence.

Id., 245 Pa.Superior Ct. at 496, 369 A.2d at 737.

The current version of the Rule has eliminated altogether the need for an inventory to “be sworn to before the issuing authority.” See 1984 Comment to Pa.R.Crim.P. 2009(a). It now only requires that:

... The officer shall sign a statement on the inventory that it is a true and correct listing of all items seized, and that the signer is subject to the penalties and provisions of 18 Pa.C.S. § 4904(b) — Unsworn Falsification to Authorities.

Instantly, the signature of “William A. Cipollini”, as the name of the person issuing the receipt/inventory, appears at the bottom of each page of the three-page document and is preceded by the language:

I/we William A. Cipollini of Penna State Police do swear (or affirm) that the property seized and taken pursuant to and under the authority of the above numbered Warrant is to the best of my/our knowledge and belief correctly and completely listed above as a just, true and complete Receipt/Inventory.

Below Cipollini’s signature appears that of “Tpr Thomas D. Cunningham” as a witness to verify the accuracy of the inventory. Although the pre-printed form failed to contain the verbiage “that the signer is subject to the penalties and provisions of 18 Pa.C.S. § 4904(b)”, given this Court’s inability to suppress evidence for a violation of a Rule of Procedure promulgated by our Supreme Court, see Commonwealth v. Jones, supra, we will uphold the ruling of the court below on this matter.

We observe that if our high Court would have wished to impose the harsh sanction of suppressing evidence where Rule 2009(a) was not complied with in all respects, it could have done so very easily by setting forth such a remedy in the Rule itself (see Pa.R.Crim.P. 1100(f)), especially following our decision in Commonwealth v. Jones, supra. Nonetheless, it refused to do so and merely called for the officer serving the warrant to sign the inventory.

Since the purpose of preparing an inventory is “to assure that all items seized are accounted for in the return to the issuing authority” (see Comment to Rule 2009), we find that this objective was satisfied here when all of the evidence obtained was brought to the State Police barracks and checked by Troopers Cipollini, Bellone and Cunningham against the inventory prepared by the first two troopers. The absence of Bellone’s signature from the inventory, or the fact that Cipollini did not personally enter all of the items listed on the document, we believe is not fatal to the validity of the inventory necessitating the suppression of the evidence. See Commonwealth v, Jones, supra.

The third issue raised by the appellant’s counsel concerns the claimed error by the lower court in refusing to grant a continuance on the part of counsel “upon realizing that defendant was under the influence of controlled substances.” (Appellant’s Brief at 10)

During the assistant district attorney’s cross-examination of the appellant he asked if the appellant had any marijuana or LSD the day of trial and the appellant stated:

A Marijuana. No LSD.
Q You had marijuana before you testified today?
A Did you have a cigarette today?
Q No, I didn’t sir, I don’t smoke. Did you have any marijuana?
A Yes, I did.

(Yol. II, N.T. 5/7/82 at 183)

A sidebar was sought by the assistant district attorney, during which concern was voiced over appellant’s awareness of what he was saying. Accordingly, the trial court embarked on an incisive inquiry (see Vol. II, N.T. 5/7/82 at 187-188) to ascertain what impact, if any, the ingestion of marijuana within 24 hours of trial had on appellant’s ability “to know what he was saying [or going to say] and to have voluntarily intended to say it.” See Commonwealth v. Culberson, 467 Pa. 424, 428, 358 A.2d 416, 417 (1976) (Intoxication affecting the voluntariness of a confession).

The trial court ruled that, based upon its observations of the appellant during the day’s proceedings and the responses given by him on direct examination, as well as his answers to the assistant district attorney’s questions regarding the use of marijuana, the need did not exist to grant a continuance to allow the appellant’s system to purge itself of the drug. Also, the responses elicited from the appellant convinced the trial court that the appellant was acting voluntarily and not under any delusions engendered by the consumption of marijuana; viz.:

THE COURT: Well, I have to place on the record the fact that in observing him prior to this particular question and his testimony now, that he may have ingested marijuana, but it has had no effect as to destroying the effectiveness of his testimony. One, he understands the questions that are put to him. And, two, he is capable of formulating answers.

(Vol. II, N.T. 5/7/83 at 190-191)

We are in complete accord with the manner in which the trial court handled the situation, and find no reason to alter its ruling, which is supported by the facts at bar and the law on the subject. See, e.g., Commonwealth v. Kuhn, 327 Pa.Super. 72, 475 A.2d 103 (1984).

Appellant’s fourth protestation centers upon the harshness and excessiveness of the sentence imposed.

We have reviewed the sentencing transcript and the terms of imprisonment imposed in light of the applicable statutory and case law on the subject, see, e.g., Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976); 42 Pa.C.S.A. § 9701 et seq., and find that there has been no abuse of discretion on the part of the court below in entering the sentence it did against the appellant. See Commonwealth v. Gillespie, 290 Pa.Super. 336, 434 A.2d 781 (1981).

The sentencing court looked at the nature of the offenses, the character of the appellant and the particular circumstances impacting upon the appellant’s life, as evidenced by the 9-page pre-sentence report, in imposing the sentences so as to run consecutively. This neither “shocks our conscience” nor do we find that it exceeds the permissible boundaries of the law.

Finally, we come to the last of appellant’s issues, i.e., “did the lower court err in confiscating $30,717.00 in cash seized upon defendant’s arrest?” (Appellant’s Brief at 15)

In making its determination, the lower court was required to find that “the property sought to be returned was ‘directly derived from’ or ‘directly traceable to’ the sale of a contraband substance____” Commonwealth v. Myers, 298 Pa.Super. 272, 280, 444 A.2d 1170, 1174-1175 (1982). The evidence relied upon for making this determination consisted of the suppression and trial records.

It will be recalled that the Commonwealth set up a “controlled” purchase of drugs from the appellant’s residence on January 27, 1982, through a confidential informant. The informant was provided with $20 to make the purchase, was observed entering the appellant’s residence and returning within a matter of minutes to the police vehicle minus the $20, but in possession of a xk ounce of marijuana sold to him by the accused. Following the securement of a warrant, the police searched the appellant’s residence and seized, inter alia, drugs (approximately 26 one pound ziploc plastic bags containing marijuana and 2,288 tablets of LSD), drug paraphernalia (3 scales) and $30,717 in cash from a plastic garbage bag situated next to appellant’s bed.

We agree with the court below that, albeit “none of the marked money [$20] was recovered ..., there is more than a preponderance of evidence supporting the contention that the $30,717 was traceable to drug sales.” (Emphasis added) (Lower Court Opinion at 3) For example, “[t]he marijuana seized was carefully weighed and wrapped in one-pound bags, ready to be sold. The money was thrown in the [brown vinyl plastic] bag in piles of different amounts and denominations. Large quantities of plastic bags and sophisticated scales were found. All these facts point to a profitable drug business.” Id. To hold that the money seized by the authorities was not “derivative contraband” traceable to the sale of drugs by the appellant would be to ignore the realities and to take a myopic view of the case. We refuse to do so and affirm the actions of the court below.

      . Although not dispositive of the case, one cannot ignore evidence that neither the appellant nor his wife held steady jobs. Mrs. Graham had been employed at minimum wage for three unconsecutive years. As for the appellant, he received a disability payment of $400 a month, had not worked for approximately 5 years prior to his arrest and was supporting a family of three solely on his disability check. Yet, the Grahams managed to own several vehicles and some 19 guns.


author: WICKERSHAM, Judge:

text:
    482 A.2d 1284
    Marlin A. HALLMAN and William D. Hallman v. Clarence B. TURNS, Sr. and Mary E. Turns, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued April 4, 1984.
    Filed Oct. 12, 1984.
    Petition for Allowance of Appeal Denied March 21, 1985.

      J. Stephen Feinour, Harrisburg, for appellants.

      James L. Goldsmith, Harrisburg, for appellees.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   WICKERSHAM, Judge:

This is an appeal from a judgment in ejectment entered in the Court of Common Pleas of Dauphin County.

We are presented here with a boundary dispute between defendants-appellants Clarence and Mary Turns and plaintiffs-appellees Marlin and William Hallman. The dispute involves a piece of mountainous, unimproved land situated in Fishing Creek Valley, Middle Paxton Township, Dauphin County. The parties do not dispute that appellees’ northern boundary line is also appellants’ southern boundary line, nor is there a dispute as to the location of the beginning and ending points of this line. It is the course of the boundary between these fixed points which is the subject of this suit.

Originally, the land of both parties was part of a 143 acre tract owned by Sam and Jennie Sweigart. In 1928, the Sweigarts sold approximately nine acres in the northeastern corner of their tract to Clarence and Kathryn Sellers. The southern boundary of that conveyance is the boundary now in dispute. The «description of the southern boundary of that parcel (which was ultimately acquired by appellants) is as follows:

... to a stake; thence in a north westernly direction along lands of S.C. sweigart [sic] twenty eight and five eighth (28%) perch to a locust tree thence in a westernly direction along lands of same thirty six and one half (36V2) perch to a stone corner; ____

(R.R. at 202a). In 1951, the Sellers sold this same parcel of land to George and Mary Swavely, who, shortly thereafter, resold the entire parcel to the Turnses, appellants herein.

Meanwhile, the Sweigarts had retained the larger tract south of the boundary in question. Between 1928 and 1961, the Sweigarts sold off four other tracts of varying sizes. Finally, the remaining tract of approximately 55 acres, located to the south of appellants’ land, was sold in 1961 to the Trustees of Troop 8, Keystone Area Council, Boy Scouts of America. By two deeds, one in 1976 and one in 1978, the Boy Scouts conveyed their entire tract to the Hallmans, appellees herein. Hence, appellees’ property shares a common boundary with appellants’ property.

Subsequent to appellees’ taking possession of the southern tract, a disagreement arose with appellants as to the exact location of the common boundary. Appellants argue that the deed of 1928, which created the boundary, mistakenly substituted the word “north westernly” when “south westernly” was intended. Appellants claim that, instead of proceeding north westwardly and then westwardly from the easternmost common point, the boundary actually runs first south westwardly and then northwestwardly. This would give appellants an additional 3.94 acres in the shape of a diamond. In recent years, appellants have made use of this disputed property, hence the action in ejectment by appellees in 1978.

The case was tried before a jury in March of 1982, which returned a verdict in favor of appellees. Motions for judgment non obstante veredicto and a new trial were filed, argued, and ultimately denied by the court en banc: Judgment on the jury’s verdict was entered on November 24, 1982. Appellants filed this timely appeal.

Appellants raise the following issues before us:

A. Was not the admission into evidence of the Quitclaim Deed from the Troop No. 8 “Trustees” to Hallmans and the exclusion of newly discovered documentary and oral evidence of the dissolution of said Trustees and resultant lack of capacity to execute said Deed prejudicial error?
B. Did not the trial court commit prejudicial error in admitting hearsay evidence in the form of reputation and alleged declarations of a deceased owner as to the location of the disputed boundary line and in subsequently instructing the jury that it could use such evidence to determine the boundary line where the decedent’s statements were not made to one with an ownership or other legal interest in the property or at a time when the declarant was on the property for the express purpose of identifying the boundary and where the title is not so remote or the monuments and natural boundaries so uncertain as to be incapable of more direct proof?
C. Did not the trial court commit prejudicial error in refusing to charge the jury that the plaintiff in a possessory action of ejectment has the burden of proving by clear and convincing evidence his right to immediate and exclusive possession of the disputed property under his title?
D. Did not the trial court err in its refusal to enter Judgment N.O.V. in [appellants’] favor where the jury’s verdict was contrary to law and not supported by the evidence; or alternatively, to grant [appellants] a new trial where the jury’s verdict was against the weight of the evidence?

Brief for Appellants at 3.

After a thorough examination of the record and the briefs of the parties, and having had the benefit of oral argument, we find that the well-reasoned opinion of the Honorable Warren G. Morgan thoroughly discusses and disposes of all but one of the issues raised in this case. We see no need to further discuss issues A, B, and D, and affirm those issues on the basis of Judge Morgan’s opinion [See Appendix A]. We will briefly address issue C.

Appellants argue that the court erred in refusing to charge the jury that appellees, as plaintiffs in an ejectment action, had the burden of proving their case by clear and convincing evidence. Because of this alleged error, appellant argues that a new trial is warranted.

The lower court instructed the jury that “the plaintiff has the burden of proving their title.” (N.T. at 266). The court then amplified its charge:

[I]f you are to return a verdict for [appellees], it must rest on their proof and that proof must be by a preponderance of the evidence that theirs is the title to this property. They can’t rely on the weakness of someone else’s title. They have to satisfy you in their own proof.

(N.T. at 266). Later on, the court again stated “If you find that [appellees] have established their claim by a preponderance of evidence, you would then have to go one step further [and decide appellants’ claim of adverse possession.]” (N.T. at 269). Appellants’ request for an instruction on the “clear and convincing standard” was refused.

We have reviewed the cases cited by both parties and the lower court, and have researched some other cases as well. We acknowledge that there is some confusion in this area of the law, but we have ascertained some general rules. The plaintiff’s burden in an action of ejectment is clear: he must establish a right to immediate exclusive possession. Harbor Marine Co. v. Nolan, 244 Pa.Super. 102, 366 A.2d 936 (1976). In order to recover in an ejectment action, the plaintiff must show title at the commencement of the action and can recover, if at all, only on the strength of his own title, not because of weakness or deficiency of title in the defendant. Artz v. Meister, 278 Pa. 583, 123 A. 501 (1924); Ratajski v. West Penn Manufacturing & Supply Corp., 198 Pa.Super. 588, 182 A.2d 243 (1962); Carratelli v. Castrodale, 185 Pa.Super. 426, 137 A.2d 805 (1958). This rule places upon the plaintiff the burden of proving a prima facie title, which proof is sufficient until a better title is shown in the adverse party. “The plaintiff in an ejectment suit, as in other cases, need not go further than to make out a prima facie case.” Golden v. Ross, 122 Pa.Super. 234, 235, 186 A. 249, 249 (1936). Until and unless the plaintiff has made a prima facie case by showing title sufficient upon which to base a right of recovery, the defendant is not required to offer evidence of his title. If it is admitted or shown that both parties derive their title from a common source, neither party need prove anything regarding the prior title to that property. Dunn v. Milanovich, 302 Pa. 184, 152 A. 757 (1931). Further, if the plaintiff traces title to himself from the common source, he thereby makes out a prima facie case in his favor, calling upon the defendant to prove his alleged title if he wishes to defeat the plaintiffs apparent ownership. Id.; Babcock Lumber Co. v. Faust, 156 Pa.Super. 19, 39 A.2d 298 (1944).

It is also clear that to support an action in ejectment, the evidence must be sufficient to identify the land in dispute and establish the plaintiffs right to possession thereof. The burden of identifying and locating the land clearly rests upon the plaintiff. Seitz v. Pennsylvania Railroad Co., 272 Pa. 84, 116 A. 57 (1922); Beals v. Allison, 161 Pa.Super. 125, 54 A.2d 84 (1947). In this regard, plaintiff has the burden of presenting definite and certain evidence of the boundary of the property in controversy. Skillman v. Magill, 98 Pa.Super. 72 (1929). Where the plaintiff is unable to establish his boundary line by adequate legal proof, his action must fall and he is not entitled to relief.

Clearly, the moving party must prove a specific boundary, but a preponderance of the evidence is sufficient to establish that boundary. Rook v. Greenewald, 22 Pa.Super. 641 (1903); 5 P.L.E., Boundaries, § 30.

[Where in an action of ejectment the] question for solution was whether the true line between the plaintiff and defendant was as written in the deed or as indicated by the old fence referred to by the witnesses and by the court in its charge, and undoubtedly the true rule is that this fact was to be determined by the jury in accordance with the weight of the evidence. The law does not require that the jury shall be satisfied upon a question of this character beyond a reasonable doubt, nor does the law require that the evidence shall be clear, precise and indubitable as in the case of the reformation of a deed.

Rook v. Greenewald, supra, 22 Pa.Superior Ct. at 648. In Rook, the trial judge had charged that the evidence must be of extremely strong character, clear and satisfactory, and strong enough to remove all reasonable doubt from the jurors’ minds. The Superior Court said that the charge was in error because it utilized the wrong standard. We have not found any more modern discussion of the standard of proof in our appellate cases. We are aware of no public policy reasons, nor have appellants presented us with any, to impose a higher standard of proof in ejectment actions. Because we have been given no reason to doubt that the preponderance of the evidence standard of Rook v. Greenewald, supra, is still valid, we hold that this standard still applies to ejectment cases, including the one herein.

Judgment in ejectment is affirmed.

APPENDIX A

MARLIN A. HALLMAN and WILLIAM D. HALLMAN, Plaintiffs,

v.

CLARENCE B. TURNS, SR., and MARY E. TURNS, his wife, Defendants.

IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA

CIVIL ACTION — LAW

NO. 4665 S. 1978

IN EJECTMENT JURY TRIAL DEMANDED OPINION

This is an action in ejectment brought by plaintiffs Marlin A. and William D. Hallman against defendants Clarence B. Turns, Sr. and his wife Mary E. Turns. A jury trial resulted in a verdict for the plaintiffs. We have before us now defendants’ motions for a judgment non obstante veredicto and alternatively for a new trial. We find no merit in defendants’ arguments and therefore we deny their motions.

Our Supreme Court has recently stated: “A judgment n.o.v. should be entered only in a clear case, and any doubts should be resolved in favor of the verdict. In considering a motion for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, is considered in the light most favorable to the verdict winner [citations omitted].” Atkins v. Urban Redevelopment Authority of Pittsburgh [489] Pa. [344, 351], 414 A.2d 100, 103 (1980). By this standard we review the facts of the case as developed by the evidence.

The land involved in this action consists primarily of mountainous, unimproved land situated in Fishing Creek Valley, Middle Paxton Township, Dauphin County, Pennsylvania. Originally the land of both parties was owned by Sam and Jennie Sweigart. The Sweigart tract resembled a rectangle roughly twice as long as it was wide, running longitudinally more or less north-south. A finger of the original Sweigart tract extended northwards from the northwestern corner of the property to connect with and give access to Fishing Creek Valley Road, Rte. 443 (Plaintiffs’ Exhibit 9). The original Sweigart tract comprised 143 to 144 acres. (N.T. 71).

In 1928 the Sweigarts sold off a portion of their property located in the northeastern corner of their original tract to Clarence E. Sellers and his wife. This conveyance created the southern boundary of the Sellers parcel which is in dispute in this case. The deed given by the Sweigarts to the Sellers describes this contested boundary as running “[from a stake]; thence in a north westernly direction along the lands of S.C. Sweigart [sic] twenty eight and five eighth (28%) perch to a locust tree thence in a westernly direction along lands of some thirty six and one half (36V2) perch to a stone corner.” (Dauphin County Deed Book A, Vol. 22, p. 339; Plaintiffs’ Exhibit No. 4). In 1951 the Sellers sold the whole of this same parcel of land to George W. and Mary T. Swavely (Dauphin County Deed Book Z, Vol. 34, p. 508; Plaintiffs’ Exhibit No. 5). Also in 1951 the Swavelys resold this entire parcel to the present defendants, Clarence B. and Mary E. Turns (Dauphin County Deed Book Z, Vol. 34, p. 511; Dauphin County Deed Book D, Vol. 35, p. 463; Plaintiff’s Exhibit Nos. 6 and 7). Thus the present defendants own no more than the original grant from the Sweigarts to the Sellers (N.T. 37).

Through the years the Sweigarts conveyed one other parcel of their property which concerns us here, and that was to Theodore Moore in 1939. This 18,000 square foot rectangular parcel was bounded on its eastern, southern and western sides by the Sweigart tract and on its northern boundary by the then Sellers property (Dauphin County Deed Book U, Vol. 24, p. 547; Plaintiffs’ Exhibit Nos. 3 and 9; N.T. 37-42).

In 1961 Jennie D. Frantz Sweigart, Mr. Sweigart’s widow, sold all the rest of the original Sweigart tract to the Trustees of Troop 8, Keystone Area Council, Boy Scouts of America (Dauphin County Deed Book H, Vol. 47, p. 130; Plaintiffs’ Exhibit No. 1). By two deeds, one in 1976 and the second in 1978, the Trustees of Troop 8 conveyed their entire holdings to the present plaintiffs, Marlin A. and William D. Hallman (Dauphin County Deed Book L, Vol. 62, p. 847; Dauphin County Deed Book F, Vol. 65, p. 953; Plaintiffs’ Exhibits Nos. 2 and 3). Hence the Hallman’s property shares a common boundary with the Turns’ property, being the southern boundary of the Turns’ property and, except for the 18,000 sq. ft. notch occupied by the Moore conveyance, part of the northern boundary of the Hallman’s property.

The beginning and ending points of this boundary are not in dispute. However, the defendants claim that, instead of proceeding northwestwardly and then westwardly from the easternmost common point, the boundary actually runs first southwestwardly and then northwestwardly. This line would give defendants a diamond-shaped additional 3.94 acres and their property would then completely surround the Moore tract. In recent years defendants have begun to fence this southerly line.

Plaintiff called two witnesses who had been shown the true, northerly, boundary line by Mr. Sweigart himself. Plaintiff also called two professional surveyors who, through field work and a reconciliation of all deeds in the disputed area, found the true line to be the northerly one. We find that this evidence amply supports the jury’s verdict and therefore we deny defendants’ motion for a judgment n.o.v.

In their alternative motion defendants propose a number of arguments which they contend require the granting of a new trial. First defendants contend that we erred in admitting the testimony of John Mehaffie concerning an incident in the late 1930s when Mr. Sweigart, now deceased, walked along the boundary between his tract and the Sellers property, specifically pointing out the boundary to Mr. Mehaffie [N.T. 124-127]. In Pennsylvania declarations of a deceased owner with respect to boundary are competent evidence, in exception to the hearsay rule, when the declarant owner “was on the land at the time the declaration was made, and engaged at the time in pointing out the boundaries of the land.” Collins v. Clough, 222 Pa. 472, 484, 71 A. 1077, 1080 (1909). See also, Dawson v. Coulter, 262 Pa. 566, 106 A. 187 (1919). This evidence will be admitted when because of lapse of time no more direct evidence is available. Collins v. Clough, Supra; Hostetter v. Commonwealth, 367 Pa. 603, 80 A.2d 719 (1951). Defendants’ objection to Mr. Mehaffie’s testimony on this matter are meritless. The crucial piece of physical evidence of the boundary called for in the deed, i.e., the locust tree at the point of the angle constituting the disputed boundary, is admitted by both parties to be no longer there. (N.T. 58, 191). Thus Mr. Mehaffie’s testimony was properly admitted. Our discussion here also disposes of defendants’ second argument that we improperly instructed the jury that such reputation and hearsay evidence as Mr. Mehaffie offered may properly be considered. See Hostetter, supra, 367 Pa. at 606, 80 A.2d at 720.

Defendants thirdly argue that we erred in admitting into evidence the 1978 quitclaim deed given by the trustees of Troop 8 to the plaintiffs, and in excluding newly discovered evidence of the dissolution of the trustees prior to the execution of the quitclaim deed. We think not. Defendants admitted, in their Answer, plaintiffs’ averment that the trustees had executed the 1978 quitclaim deed. “Admissions of this type, i.e., those contained in pleadings, ... are usually termed 'judicial admissions’ and as such cannot later be contradicted by the party who has made them.” Tops Apparel Mfg. Co. v. Rothman, 430 Pa. 583, 587, 244 A.2d 436, 438 (1968). Furthermore, defendants also waived the affirmative defense they allege because they did not raise it in their Answer. Pa.R.C.P. 1032, 42 Pa.C.S.A.; Birdman v. Medley, 261 Pa.Super. 23, 395 A.2d [285] (1978). As our Supreme Court has explained, amendments to pleadings should be liberally granted, unless undue prejudice results, and the essence of undue prejudice “must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed ... [citation omitted].” Bata v. Central Penn National Bank of Philadelphia, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972), cert. den. 409 U.S. 1108 [93 S.Ct. 910, 34 L.Ed.2d 689] (1973), reh. den. 410 U.S. 960 [93 S.Ct. 1417, 35 L.Ed.2d 695] (1973). Here defendants offered their amendment on the eve of trial and we find it was properly denied.

Fourthly, defendants argue that we erred in charging the jury that plaintiffs must prevail by a preponderance of the evidence rather than by the more demanding “clear and convincing evidence” standard, as defendants themselves had requested. Defendants are mistaken. See Rock [Rook] v. Greenewald, 22 Pa.Super. 641 (1903), Straley v. Wahl, 97 Dauph. 308 (1975), Leeann Corp. v. Jones, 58 D & C 2d. 703, 22 Cumb. 15, motion overruled 22 Cub. 68 (1972).

Finally, defendants contend that the verdict is against the weight of the evidence so as to require a new trial. We cannot agree. As stated by our Superior Court, “The primary function of a court faced with a boundary dispute is to ascertain and effectuate the intent of the parties at the time of the original subdivision.”. Roth v. Halberstadt, 258 Pa.Super. 401, 406, 392 A.2d 855, 857 (1978). Here plaintiffs have introduced the deed creating the disputed boundary which described the line going from east to west as first proceeding north westward to a locust tree and then westwards. Two witnesses testified that the man who created that boundary, Mr. Sweigart, walked along it with them at different times and pointed it out to them. (N.T. 96, 124-126, 138). These witnesses also testified that Mr. Sweigart erected a single wire fence along the boundary (N.T. 104-05, 125-27). Two surveyors testified that after careful and comprehensive work they placed the boundary on the same northwestwards-westwards line as described by Mr. Sweigart (N.T. 45, 59, 88, 90). Following this line, one surveyor found a tree with a single strand of wire in it, obviously the remnants of Mr. Sweigart’s fence. (N.T. 51-52). Furthermore, buildings on the old Moore tract abutted the true property line between that tract and defendants’ property. (N.T. 50-51).

For their part defendants testified that they had been shown the more southerly boundary line by Mr. Swavely when defendants purchased the property from him in 1951 (N.T. 210-216). However, Mr. Swavely had only purchased the property himself on the same day he sold most of it to the defendants. (Plaintiffs’ Exhibit Nos. 5 and 6). Defendants also introduced the testimony of a surveyor who had determined that the more southerly boundary was the correct one. This surveyor, Mr. Betz, admitted that Mr. Turns had accompanied his crew during their survey and purported to indicate the locust tree in question along what Mr. Turns believed to be the correct, southerly boundary (N.T. 192-96). Furthermore, Mr. Betz testified that he relied on the specific distances called for in the deeds and on a calculation of the resulting acreage supposedly comprising the plaintiffs’ tract in settling on the more southerly boundary line (N.T. 180-81, 199-202), whereas plaintiffs’ surveyors relied on monuments rather than acreage. (N.T. 56, 85).

Defendants’ survey evidence is less credible than plaintiffs’ in several respects. First, defendants attach great importance to the fact that Mr. Betz’s southerly survey line approximates the deed distances almost precisely, whereas plaintiffs’ northerly line loses about 30 feet on the northwesterly leg. (N.T. 218). This is a hollow argument; obviously this could be corrected by placing the northerly line even further north and giving defendants less resulting acreage. Defendants also argue that the Betz survey results in the correct acreage for plaintiffs’ property. However, no actual acreage is mentioned in plaintiffs’ deed or claim of title. (N.T. 200). Furthermore, though defendants’ deed calls for “nine acres more or less”, the southerly Betz line gives them 12 acres whereas the northerly line gives them almost 8 acres (N.T. 54, 56, 84, 202). Hence the southerly line results in a larger proportional error for both properties than the northerly line. Finally, our Supreme Court has said “Evidence of the acreage of land, especially where ... the number of acres is followed by the words ‘more or less,’ has little weight as against specific boundaries and is in its nature an uncertain method of description and often a mere estimate.” Dawson v. Coulter, 262 Pa. 566, 570, 106 A. 187, 188 (1919).

Defendants’ contention that the jury’s verdict is against the evidence simply does not survive scrutiny of the entire record and we find no cause to grant their motion for a new trial.

Therefore, for the reasons given above, we enter the following

ORDER

AND NOW, October 27, 1982, defendants’ post verdict motions are denied.

BY THE COURT:

/s/ Warren G. Morgan

Warren G. Morgan, Judge

Distribution:

James L. Goldsmith, Esquire J. Stephen Feinour, Esquire

      . The crucial piece of physical evidence in the description of the boundary in the 1928 deed, the locust tree, is no longer in existence.

      . We reviewed the common pleas cases cited by the parties and find that both Straley v. Wahl, 97 Da.Co.R. 308, 309 (1975) and Leeann Corp. v. Jones, 58 Pa. D & C 2d 703, 706, 22 Cumb. 15 (1972) state that the burden upon plaintiff is one of “a fair preponderance of the evidence.” Deaven v. Zeigler, 103 Da.Co.R. 466, 467 (1982) appears to stand alone in supporting the “clear and convincing" standard in ejectment cases. We agree with appellees that Deaven is not even substantiated by the case cited therein, Seitz v. Pennsylvania Railroad Co., supra, which concerned what must be proved rather than the quantum of proof. We agree with Seitz that the moving party must prove a specific boundary, but only by a preponderance of the evidence.

      . Even if, arguendo, we were to hold that the clear and convincing standard applies, upon a review of the record, we find that appellees' proof would have been sufficient to meet the higher burden.


author: DEL SOLE, Judge:

text:
    482 A.2d 1292
    COMMONWEALTH of Pennsylvania v. George CARROLL, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 22, 1984.
    Filed Oct. 12, 1984.
    Petition for Allowance of Appeal Granted July 22, 1985.

      Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and ROBERTS, JJ.
   DEL SOLE, Judge:

Appellant was convicted, after a jury trial, of possession with intent to deliver heroin. Post-trial motions were filed and denied. Appellant was sentenced to two and one-half to five years imprisonment. This appeal followed.

Eight issues are raised on appeal: 1) Was trial counsel ineffective in failing to object to dismissal of the deadlocked first jury and in failing to file a Motion to Dismiss before Appellant’s retrial on the grounds of double jeopardy?; 2) Was trial counsel ineffective in failing to file a Motion to Suppress before Appellant’s second trial?; 3) Did the court err in permitting evidence of prior criminal activity?; 4) Was trial counsel ineffective in failing to adequately cross-examine the police officers?; 5) Was the evidence insufficient to sustain the verdict?; 6) Was trial counsel ineffective in failing to properly question Appellant’s wife?; 7) Did the court err in instructing the jury concerning the marked twenty dollar bill found in Appellant’s possession?; and 8) Was trial counsel ineffective in failing to preserve for appeal the issue of court error in permitting the search warrant to go to the jury as evidence?

Because we have concluded that Appellant’s argument concerning sufficiency of the evidence has merit, we do not need to address the other issues raised in this appeal.

In reviewing the sufficiency of the evidence to support a conviction, we must view that evidence in the light most favorable to the Commonwealth. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979).

The following evidence was presented at trial. A confidential police informant made a controlled buy of heroin in room 21 of the Econo Motel in Harrisburg. Police recorded the serial numbers of the money used to make the purchase. Room 21 was registered to Appellant and his wife. Based on information from the informant, police obtained a search warrant for the motel room. The warrant was executed approximately twelve hours after the controlled buy. Appellant, his wife and his teenage stepdaughter were present in Room 21 at the time. In the bathroom, under the plastic trash can liner, a syringe and bottle cap were found. A laundry bag by one of the beds contained a pair of women’s blue jeans. Inside the pocket of the jeans, wrapped in a three year old rent receipt made out to Appellant’s wife, was 680 milligrams, or approximately 7 dosages, of heroin. Police also seized $70.00 in currency from the pocket of Appellant’s pants, which were lying over a chair. One of the bills contained the same serial number as one of the bills used in the previous controlled buy. All three occupants denied any knowledge of the drugs and denied that they were heroin users, although Appellant’s wife was a former heroin addict and was undergoing methodone treatment at the time of the arrest. Appellant’s wife and stepdaughter both testified that the blue jeans belonged to a friend of the daughter.

We hold that the above-recited evidence was not sufficient to prove, beyond a reasonable doubt, Appellant’s constructive possession of the heroin.

In order to prove constructive possession, the Commonwealth had to prove: 1) the power to control and 2) the intent to exercise control on the part of the Appellant. Commonwealth v. Gilchrist, 255 Pa.Super. 252, 386 A.2d 603 (1978). Although Appellant’s presence at the scene is one factor to be considered, that fact alone is not sufficient to prove constructive possession. Commonwealth v. Thompson, 286 Pa.Super. 31, 428 A.2d 223 (1981). It is true that the motel room was registered to Appellant and his wife. In Commonwealth v. Gilchrist, supra, this Court held that the Commonwealth need not prove that the defendant/husband exerted more control over the premises than his wife, but rather that he exerted joint control and had equal access to both the apartment and the contraband. In Gilchrist, contraband was found in “plain view” in a box on the mantle of the shared bedroom and in a dresser drawer which contained both men’s and women’s clothing. In this case, however, the heroin was not found in plain view. It was found inside the pocket of a pair of woman’s pants, inside a laundry bag. There was no evidence that any articles of men’s clothing were found in the laundry bag. The pants containing the heroin obviously did not belong to the Appellant. Furthermore, the heroin was wrapped in a receipt made out to Appellant’s wife. The logical inference from the evidence is that the heroin was in the constructive possession of Appellant’s wife, rather than Appellant. It cannot be inferred from the mere fact of marriage that Appellant had equal access to and the power and intent to control his wife’s personal possessions.

The Commonwealth makes much of the fact that Appellant had in his possession a bill used in a controlled drug buy the day before. Appellant was not charged in connection with the prior buy. Two other family members were residing in the motel room at the time. There was no evidence presented at trial that Appellant made that sale or was even present when it took place. It is true, as the Commonwealth argues, that Appellant’s possession of the bill is relevant to the question of his knowledge of and intent to control the heroin seized in this case. However, from that fact alone, one may not conclude beyond a reasonable doubt that Appellant had the power and intent to control the heroin which was in a laundry bag, in the pocket of a pair of women’s pants, wrapped in a receipt made out to his wife. Considering the totality of the circumstances in this case, Commonwealth v. Harris, 263 Pa.Super. 110, 397 A.2d 424 (1979), the Commonwealth failed to meet its burden of proof.

Judgment of Sentence reversed. Appellant is discharged.