text:
    672 A.2d 338
    COMMONWEALTH of Pennsylvania, Appellant v. Neftali VALENTIN, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 10, 1995.
    Filed March 1, 1996.

      Stuart B. Suss, Assistant District Attorney, West Chester, for the Commonwealth, appellant.
    Peter E. Kratsa, Assistant Public Defender, West Chester, for appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   DEL SOLE, Judge:

The Commonwealth appeals a trial court order granting a Writ of Habeas Corpus and quashing a Governor’s warrant of arrest. The State of Delaware, by its Governor, requested extradition of the defendant whom it had charged with a felony. Following receipt of this request, the Governor of Pennsylvania issued a warrant of arrest in compliance with 42 Pa.C.S.A. § 9128. The defendant was arrested and brought before the trial court where, after being advised of his rights, he applied for a Writ of Habeas Corpus as authorized by 42 Pa.C.S.A. § 9131.

While the Petition for the Writ of Habeas. Corpus raised several issues, only two concern us on appeal. They are:

(1) Is this defendant the person referred to in the request for extradition?
(2) Was the defendant in the demanding state at the time the crime was committed?

At the hearing, the Governor’s warrant with the request for extradition was presented. The Delaware request named the fugitive as Peter Valentin, not Neftalí Valentin. Also, the defendant introduced evidence that he was in Pennsylvania, not Delaware at the time the crime was committed. . The trial court concluded that the person named in the warrant was the defendant, but that a preponderance of the evidence established that the defendant was not in the demanding state at the time the crime was committed. The question presented to this court is what is the burden of proof necessary to satisfy each of the questions presented.-

We begin by observing that the extradition of fugitives from state to state is mandated by the Constitution of the United States. Article IV, Section 2 provides:

A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

To implement this requirement, Pennsylvania has adopted the “Uniform Criminal Extradition Act.” 42 Pa.C.S.A. § 9121 et seq. Section 9124 details the form a demand for extradition must take to be recognized by the asylum state. The request must contain a claim “that the accused was present in the demanding state at the time of the commission of the alleged crime.” In addition, it must be established that the person arrested is the person demanded. See Commonwealth ex rel. Edgar v. Davis, 425 Pa. 133, 228 A.2d 742 (1967); Commonwealth ex rel. Smalley v. Aytch, 247 Pa.Super. 23, 371 A.2d 1018 (1977). Coupled with these requirements is the prohibition of inquiring into the guilt or innocence of the accused set forth in § 9141 which provides:

The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor, or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as provided in this subchapter shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.

With this background, we analyze the issues presented. The accused first challenged his arrest claiming he was not the person named in the request for extradition. When this challenge is made, the Commonwealth must establish by the weight of the credible evidence, that the correct person has been arrested. Our Supreme Court stated in Edgar, supra:

In every extradition proceeding, the relator has an absolute right to require that his identity as the person named in the Extradition Requisition be established and proved by the weight of the credible evidence.

425 Pa. at 136, 228 A.2d at 744.

The evidence presented included the identification of the Appellee as the perpetrator by the victim of the crime, and additional evidence that the defendant is known as “Peter” although his name is Neftali. Therefore the Commonwealth met its burden of proof that the person arrested was the person sought.

A more complex problem is presented where the defendant claims that he was not present in the demanding state at the time the crime was committed. Section 9124 of the Uniform Act requires the demanding state allege the defendant was present within that state at the time of the crime. Our courts have interpreted this to require the Commonwealth present some evidence of defendant’s presence in the demanding state when the defendant denies being there at the time the crime was committed.

The burden of proof is a minimal one, since the asylum forum is not permitted to inquire into the guilt of the defendant, and alibi is. such a determination. Therefore, where there is evidence presented that defendant was present in the demanding state,- which evidence may be believed by the ultimate factfinder, the asylum state must extradite.

However, a Relator is not without recourse. Where the defendant can establish beyond a reasonable doubt that he was not present in the demanding state at the time the crime was committed, he is entitled to discharge. This principle was announced by the United States Supreme Court in South Carolina v. Bailey, 289 U.S. 412, 53 S.Ct. 667, 77 L.Ed. 1292 (1933). Our Supreme Court’s decision in Ripepi Extradition Case, 427 Pa. 507, 235 A.2d 141 (1967) does not, as suggested by the parties, dictate a different standard for Pennsylvania. There the question before the Court was whether the trial court erred in refusing to allow the presentation of additional testimony regarding the defendant’s presence in the asylum state at the time of the crime. The Court concluded that the trial court erred in not admitting the evidence. This is not a ruling on the burden of proof necessary to avoid extradition, but rather a ruling which allows the introduction of evidence which later must be weighed by the fact finder.

In the case before us the trial court, in using a preponderance of the evidence standard, weighed the evidence on the wrong scale. Therefore, we vacate the court’s order and remand for a new determination. If the trial court concludes that the defendant has set forth evidence which establishes beyond a reasonable doubt that he was not present in Delaware when the crime was committed, then it should grant the writ- and quash the warrant. If the court concludes that a question exists on this point, extradition should be granted.

Order vacated, case remanded for proceeding consistent with this opinion.'


source: Caselaw Access Project

author: HOFFMAN, Judge.

license: Public Domain

text:
    672 A.2d 341
    R.G., Appellee, v. T.D., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1996.
    Filed March 5, 1996.

      Douglas B. Chester, Spring Mills, for appellant.
    Caren Bloom, State College, for appellee.
    Before McEWEN, President Judge, and SAYLOR and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from a February 9, 1995 Protection from Abuse (PFA) order. Appellant, T.D., now raises the following issue for our review:

DID THE COURT ERR IN GRANTING A PROTECTIVE ORDER UNDER THE PROTECTION FROM ABUSE ACT?

Appellant’s Brief at 3.

On February 1, 1995, appellee R.G., a student at Penn State University, filed a PFA petition against appellant, a fellow student at the school, to prevent him from attempting to contact her via any method of communication. A temporary ex parte PFA order was entered the same day. After a hearing on February 9, 1995, a full PFA order was entered against appellant enjoining him from any attempt to contact appellee for one (1) year. Following the denial of appellant’s motion for reconsideration on February 21, 1995, this timely appeal followed.

Appellant now argues that the PFA order against him must be vacated as appellee failed to show the requisite' relationship or to allege any abuse under the terms of the Act. Moreover, he contends that he was denied due process at the hearing as the trial court only allotted him four minutes to present his case and he was not represented by an attorney at the hearing.

In reviewing the validity of a PFA order, we must determine whether the evidence, in the light most favorable to petitioner and granting her the benefit of all reasonable inferences, was sufficient to sustain the trial court’s determination that abuse was shown by a preponderance of the evidence. 23 Pa.C.S. § 6107(a); Miller v. Walker, 445 Pa.Super. 537, 543-44, 665 A.2d 1252, 1255 (1995); Snyder v. Snyder, 427 Pa.Super. 494, 505, 629 A.2d 977, 982 (1993). Moreover, we must defer to the lower court’s determinations of the credibility of witnesses at the hearing. Miller, supra.

A PFA order may be issued “to bring about a cessation of abuse of the plaintiff....” 23 Pa.C.S. § 6108. “Abuse,” as defined by the statute in relevant part, is “the occurrence of one or more of the following acts between ... intimate partners:

(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury....”

23 Pa.C.S. § 6102(a)(5).

In the instant case, the PFA petition filed by appellee referred to appellant as her “former boyfriend,” and appellant made no objection to use of. the description at the hearing. PFA Petition at 5. Therefore, a relationship between “intimate partners” had been established between the parties which allowed appellee to seek protection under the PFA statute. 23 Pa.C.S. § 6102(a); see Counterman v. Shoemaker, 14 D. & C. 4th 217 (1992), aff'd., 427 Pa.Super. 648, 625 A.2d 95 (1992) (upholding PFA order against ex-boyfriend as “former intimate partner”).

In addition, appellee alleged in her PFA petition that appellant repeatedly placed unwanted phone calls and electronic mail messages to appellee, one which included the statement “you’re not answering me, you’ll die.” PFA Petition at 6. Appellee also alleged that appellant told her he suffered from an obsessive-compulsive disorder and that she was the object of his obsession. N.T. 2/9/95 at 11. Appellee further testified that she was “very scared” by the increasingly hostile messages from appellant and that she was afraid to walk around campus even during daylight. N.T. 2/9/95 at 11. Finally, the hearing transcript also reflects that appellant adamantly persisted on continuing to speak with appellee despite her pleas for him to desist. Consequently, we find that there was sufficient evidence for the trial court to conclude that appellant “[kjnowingly engag[ed] in a course of conduct or repeatedly committ[ed] acts toward [her], including following [her], without proper authority, under circumstances which place[d] [her] in reasonable fear of bodily injury.” 23 Pa.C.S. § 6102(a)(5); Miller, supra; cf. Counterman, supra (finding threats of former domestic partner to kill petitioner and her family, without actual or attempted physical violence, enough to sustain PFA order).

Appellant also asserts a general due process claim that he was denied a fair hearing with counsel to present his case. However, a hearing was held on February 9, 1995, where appellant was entitled to present witnesses in his own defense and to cross-examine witnesses including appellee. Moreover, appellant must bear the consequences for failing to secure an attorney in time for the hearing. Cf. Weir v. Weir, 428 Pa.Super. 515, 529, 631 A.2d 650, 657 (1993) (no legislatively created right to counsel at a PFA hearing). Consequently, this claim is meritless.

Accordingly, we affirm the PFA order of the trial court.

Affirmed.

McEWEN, President Judge, concurs in the result.

      . We note that appellant’s defense might have had some merit before the 1994 amendments to the PFA Act. Although we could not find a reported case interpreting 23 Pa.C.S. § 6102(a)(5), it was clearly the intent of the legislature in amending the statute to "clos[e] the loopholes” and broaden the protections of the Act. H.B. 1717, June 23, 1993, at 1576.


author: OLSZEWSKI, Judge.

text:
    672 A.2d 343
    COMMONWEALTH of Pennsylvania, Appellee, v. Roger GARRIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 1, 1996.
    Filed Feb. 27, 1996.

      John Molnar, Wind Gap, for appellant.
    James P. Gregor, District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before CAVANAUGH, EAKIN, and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge.

On November 29, 1993, a criminal complaint was filed against appellant Roger Garris for failing to obtain a sewage permit under 35 P.S. § 750.7. After a hearing on the matter, Garris was ordered to correct the sewage violation by May 6, 1994. The parties stipulated to extend the correction date to July 31, 1994. On November 9, 1994, a hearing was held before a district justice in order to determine whether the sewage violation had been rectified. Consequently, the district justice imposed a fine of $2,700 for the period of time after July 31,1994, during which the problem remained uncorrected. Garris appealed to the Court of Common Pleas of Monroe County. Following a hearing on the matter held on March 16, 1995, the Honorable Peter J. O’Brien found Garris guilty and ordered him to pay the $2,700 fine. This appeal follows.

At the outset, we note that 35 P.S. § 750.13, which proscribes penalties for violations of § 750.7, reads as follows:

Any person who shall violate any provision of section 7 of this act ... shall be guilty of a summary offense. Upon conviction thereof, such person shall be sentenced to pay a fine of not less than one hundred dollars ($100) and costs, and not more than three hundred dollars ($300) and costs, or in default thereof, shall be confined in the county jail for a period of not more than thirty days.

On appeal, Garris contends solely that his fine was impermissible because it exceeded three hundred dollars. In arguing to the contrary, the Commonwealth contends that § 750.13 allows the trial court to impose a three hundred dollar fine for each day a defendant remains in violation of section 7. We agree with Garris and vacate the judgment of sentence.

The rules of statutory construction state that “[w]hen-ever a penalty or forfeiture is provided for the violation of a statute, such penalty or forfeiture shall be construed to be for each such violation.” 1 Pa.C.S.A. § 1930. Thus, we must determine whether Garris’s inactivity constituted more than one violation of § 750.7. After careful consideration, we find that Garris’s- failure to obtain a sewage permit equalled a single continuing violation, rather than a series of identical violations.

“ ‘[C]ontinuing offenses’ are proscribed activities that are of an ongoing nature and cannot be feasibly segregated into discrete violations so as to impose separate penalties.” Newcomer Trucking v. P.U.C., 109 Pa.Commw. 341, 345, 531 A.2d 85, 87 (1987) (citation omitted). Instantly, without legislative guidance, it is impossible for us to segregate Garris’s inactivity into separate violations of § 750.7. Any attempt to do so merely equates to an arbitrary judicial determination. Taken to its logical extension, the Commonwealth would have us find separate violations for every hour, minute or second that Garris had not obtained a permit. Appellee essentially requests that we re-write § 750.13 to read that the maximum penalty may be imposed “per day for each violation.” While our legislature has repeatedly written such language into the laws of our state, it has failed to do so concerning § 750.13. As such, we are constrained to apply the law as it has been written and, thus, it would be improper to adjudicate Garris guilty of more than one violation of § 750.7. See Key Savings and Loan Assn. v. Louis John, Inc., 379 Pa.Super. 226, 230-32, 549 A.2d 988, 991 (1988) (“this Court is without authority to insert a word into a statutory provision where the legislature has failed to supply it”).

We agree with the Commonwealth that a maximum penalty of $300 is rather light for a continuing offense of section 7. We note, however, that subsequent to the initiation of criminal proceedings in the instant matter, § 750.13 was amended to require imposition of fines of “not less than five hundred dollars ($500) nor more than five thousand dollars ($5,000), plus costs, or to imprisonment not to exceed ninety days, or both.” Amended 1994, Dec. 14, P.L. 1250, No. 149, § 8, effective in 365 days. We applaud our legislature’s actions. Nonetheless, since Garris’s crimes occurred prior to the amendment of section 13, it was error for the trial court to sentence Garris to pay more than $300 in the instant matter. See Commonwealth v. Dessus, 214 Pa.Super. 347, 363-64, 257 A.2d 867, 875 (1969). Finally, if our legislature intends for the current maximum penalty under section 13 to apply on a daily basis, we implore the legislature to specifically amend the statute accordingly.

Judgment of sentence vacated. Case remanded for resentencing and jurisdiction relinquished.

      . 35 P.S. § 750.7 reads, in pertinent part, as follows:

        No person shall install, construct, or request bid proposals for construction, or alter an individual sewage system ... without first obtaining a permit indicating that the site and the plans and specifications of such system are in compliance with the provisions of this act and the standards adopted pursuant to this act.

      . We note that the trial court’s order dated March 16, 1995, supports this conclusion. The order reads, in pertinent part, that:
      the Court finds the defendant, Roger Garris, guilty of a violation of 35 P.S. 750.7, continuing from November 9, 1994. It is the sentence of this Court that the defendant pay a fine in the amount totaling $2,700 and the costs of these proceedings.
      (emphasis added). Thus, the plain language of the order reveals that the trial court found Garris guilty of only one violation of section 7.


author: POPOVICH, Judge:

text:
    672 A.2d 345
    COMMONWEALTH of Pennsylvania, Appellee, v. James SCATTONE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1995.
    Filed Feb. 28, 1996.

      Craig A. Sopin, Philadelphia, for appellant.
    Alan M. Rubenstein, District Attorney, Doylestown, for Commonwealth, appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

The appellant, James Scattone, appeals the judgment of sentence ($200 fine and cost of prosecution) for Fleeing or Attempting to Elude a Police Officer. We affirm.

A trial was held in which the court found the following facts:

On April 11, 1992, Officer James Boettger of the Doylestown Township Police Department was on routine patrol in the area of Route 202 and Lamp Post Road. At approximately 1:45 a.m., the officer observed a stopped vehicle some fifty yards west of the intersection. As he approached the vehicle, a woman standing along side the car motioned for the officer to stop. As a result of a conversation with the woman, Officer Boettger turned his car around and pulled in behind the stopped vehicle. The officer described the vehicle as an older blue Ford Mustang with a Pennsylvania license plate number ZNT-151. The officer also observed a person sitting in the driver’s seat of the Mustang, whom he later identified as the Defendant. Once the officer pulled his patrol car behind the Mustang, he heard the driver trying to start the car. The car started and pulled out onto the road. Officer Boettger activated the overhead emergency lights, and the outside spotlight of his patrol car. He also activated the siren intermittently. This was done in an attempt to perform a traffic stop of the Mustang. The officer radioed for assistance and was joined in the chase by three other patrol cars. The four police vehicles pursued the Mustang for approximately three miles with emergency lights activated the entire time. At some point in the chase Officer Boettger determined that he could identify the driver based upon the information already obtained and, therefore, ended the pursuit. A ticket was sent to Defendant through the mail to an address obtained via a PennDOT search of the license plate number.

The citation mailed to the appellant was followed by a conviction after a hearing before a district justice. With the appellant’s appeal, a trial de novo was conducted and resulted in the appellant being ordered to pay a fine, and costs. This appeal followed and raises the issue of whether the trial court erred in convicting the appellant of violating Section 3733(a) of the Motor Vehicle Code where the prosecution failed to present any evidence of probable cause for pursuing or attempting to stop the appellant’s vehicle.

The statute under review provides that:

Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who' otherwise flees or attempts to elude a pursuing police vehicle, when given visual or audible signal to bring the vehicle to a stop, commits a misdemeanor of the second degree.

Amended December 27, 1994, P.L. 1337, No. 154, § 3; 75 Pa.C.S.A. § 3733(a) (Supp.1995-96). The only defense listed by the Legislature to a charge of violating Section 3733(a) is if “the pursuing police vehicle was not clearly identifiable by its markings or, if marked, was not occupied by a police officer who was in uniform and displaying a badge or other sign of authority.” Id. at § 3733(c).

The appellant espouses a position, which has yet to be addressed in this Commonwealth, that the police must prove that probable cause existed in advance of initiating or maintaining pursuit of a vehicle before an accused can be convicted of violating Section 3733(a) by failing to bring his/her vehicle to a stop when signaled to do so by police.

In support of his argument, the appellant points to 75 Pa.C.S.A. § 6308(b) as proof of the probable cause required as a condition precedent to validating police pursuit and a citizen’s violating of Section 3733(a) for fleeing or attempting to elude police. We disagree.

Section 6308(b) deals with a vehicle stop by police and the ensuing seizure of incriminating evidence therefrom, with the resultant query as to the suppressibility of the evidence seized where articulable or reasonable grounds to suspect a violation of the Motor Vehicle Code need be present as a sine quo non to legitimizing the conduct of the police and the evidence obtained.

At bar, we had no police stop of the appellant or evidence seized which is sought to be suppressed. Rather, it is the citation of the appellant which is sought to be labelled tainted as originating from a polluted source — no probable cause or articulable suspicion of criminal activity to justify the police’s pursuit.

Generally, it is not a crime (malum in se) to operate a vehicle and refuse to stop when directed to do so. However, the act of avoiding police direction to stop has been criminalized (malum in prohibitum) by the Legislature without the additional condition that the police have probable cause to act prior to directing a stop or initiating a chase. Contrast 75 Pa.C.S.A. § 3731 (Police may arrest without warrant, even though they do not witness a DUI violation, where probable cause to believe a crime has been committed exists).

Here, after the appellant was observed in the early morning hours stopped along a stretch of road in Doylestown, Bucks County, the police were signaled by a female to stop. When the police officer parked behind the stopped vehicle, the driver left the scene and embarked on an evasion of police (four police vehicles were engaged in the pursuit lasting five minutes over a two-three-mile distance) with lights and sirens activated. The police decided to terminate the chase once they had identified the appellant as the operator of the fleeing vehicle. Citation through the mail followed and ultimate conviction led to the present appeal.

Consistent with the Statutory Construction Act, i.e., giving effect to a statute as a whole and that the Legislature would not seek an absurd result by enacting legislation, we find that the General Assembly did not make “probable cause” or “articulable suspicion” a condition precedent to sustaining a conviction of Section 3733(a). In fact, nowhere in the statute is there any mention that the absence of “probable cause” or “articulable suspicion” to stop a motorist is a defense as is the unidentifiability of a police vehicle or a police officer qua police officer set forth in subsection (c) of Section 3733. We find this enlightening and consistent with the maxim: Expressio unius est exelisio alterius. Nor is either indicia of a lawful stop of a vehicle and/or arrest of its operator an element of the offense.

Further, we hold that, just as a citizen is not permitted a defense to a resisting arrest charge to assert the unlawfulness of the arrest, a citizen is not permitted to avoid a violation of Section 3733(a) under the cloak of no probable cause or articulable suspicion to believe criminal activity is afoot by police. The statute is clear and unambiguous on its face as to the elements necessary to trigger its violation: an operator’s “willful” failure to bring his/her vehicle to a stop in the face of an audibly or visually identifiable police officer’s signal to do so.

To reiterate, nothing in Section 3733(a) requires that the police have probable cause or articulable suspicion of criminal activity prior to seeking the stop of a vehicle. The Legislature has carved out but a single caveat to Section 3733(a), i.e., the pursuing vehicle or signal-stopping officer was not identifiable as belonging to or an authoritative representative of the police department. We will not by judicial fiat add to the list of defenses available to a charge of violating Section 3733(a). Such is not our role.

Sub judice, there is no evidence that Officer Boettger was not in uniform or that any of the four pursuing vehicles were not marked and identifiable as police cruisers with flashing dome lights and sirens blaring over the two-three-mile chase route.

Given the lateness of the hour, the signal for assistance by a female adjacent to the stopped Ford Mustang, the police acted properly in pursuing the appellant. Conversely, the appellant’s conduct, in light of the totality of the circumstances, was consistent with a “willful” failure to bring his vehicle to a stop (over a two-three-mile chase) and eluding police. See Commonwealth v. Welsh, 15 Pa.D. & C.3d 471 (Adams Cty., 1980).

Judgment of sentence affirmed.

      . Section 6308(b) reads: "Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number of engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.” 75 Pa.C.S.A. § 6308(b).

      . 1 Pa.C.S.A. § 1921.

      . Under such a maxim, if a statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded. Black's Law Dictionary 692 (Rev. 4th ed. 1968).

      . Parenthetically, the unlawfulness of an arrest may be raised in a federal lawsuit under Section 1983 (excessive use of force by public servant in performance of his/her duty exposes governmental entity to liability for actions of its employees/agents).

      . For edification purposes, we would note that a police stop of a motorist without probable cause or articulable suspicion of criminal activity would taint the seizure of any evidence as "fruit of the poisonous tree” and render it suppressible. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); see also Commonwealth v. Epoca, 447 Pa.Super. 183, 668 A.2d 578 (1995); Commonwealth v. Dennis, 289 Pa.Super. 305, 433 A.2d 79 (1981). Thus, the police are not given carte blanche to stop indiscriminately all motorists without sacrificing the suppression of evidence seized as a result of an unlawful stop.
      This is not the case here where the police neither stopped the appellant nor seized any incriminating evidence as a result of a stop. The statute in question permits citation of a non-cooperating motorist for a request to stop, even though no probable cause to arrest or reasonable suspicion to believe that criminal activity is afoot concerning the motorist. The Legislature could very easily add to the defenses set forth in subsection (c) of Section 3733(a), a role we will not usurp by judicial fiat. Cf. 75 Pa.C.S.A. § 3731 (Probable cause necessary to arrest for DUI).


author: HUDOCK, Judge: BECK, Judge,

text:
    672 A.2d 786
    Darlene C. TUKOVITS, individually and as administratrix of the estate of Joseph S. Tukovits, deceased, Appellee, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA and Prudential Property and Casualty Insurance Company, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1995.
    Filed Feb. 1, 1996.
    Reargument Denied April 1, 1996.

      R. Bruce Morrison, Philadelphia, for appellants.
    Joel H. Ziev, Easton, for appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

This is a timely appeal from the order granting summary judgment in favor of Appellee on February 1, 1995. For the reasons below, we affirm.

The facts may be summarized as follows: In 1984, Joseph Tukovits’ insurance policy with The Prudential Insurance Company of America and Prudential Property and Casualty Insurance Company (Prudential) became subject to the Motor Vehicle Financial Responsibility Law of 1984 (MVFRL). At that time, Mr. Tukovits’ insurance policy provided uninsured motorist/underinsured motorist (UM/UIM) coverage in the amount of $15,000 each person, $30,000 each accident ($15/30) and bodily injury coverage in the amount of $100/300. In October of 1984, Prudential mailed Mr. Tukovits the following elective writing (10/9/84 elective writing), which Mr. Tukovits marked, signed and returned:

Shortly, we will be offering a renewal policy to you. The Insurance Laws in your state require us to offer Uninsured/Underinsured Motorists Coverage equal to your Bodily Injury Liability limits effective on your policy renewal date. You currently carry Bodily Injury Liability limits of $100,000 each person, $300,000 each accident and Uninsured/Underinsured Motorists limits of $15,000 each person, $30,000 each accident.
If you do not wish to have your Uninsured/Underinsured Motorists Coverage equal to your Bodily injury Liability Coverage, you may retain your current Uninsured/Underinsured Motorists limits or choose Uninsured/Underinsured Motorists limits lower than your Bodily Injury Liability limits. PLEASE INDICATE YOUR CHOICE BELOW AND RETURN THIS ENTIRE FORM IN THE ENCLOSED POSTAGE PAID RETURN ENVELOPE WITHIN 14 DAYS. By returning this completed Coverage Election Form, you are making certain your renewal policy will be issued with the Uninsured/Underinsured Motorists limits of your choice.
I have read the above explanation and enclosed, policyholder letter and choose to:
x Renew my policy with my present Uninsured/Underinsured Motorists limits
_Renew my policy with Uninsured/Underinsured Motorists limits lower than my Bodily Injury Liability limits. The limits I wish to renew with are:
Each person Each accident
$- $-
_Renew my policy -with Uninsured/Underinsured Motorists limits equal to my Bodily Injury Liability limits
I agree that the Uninsured/Underinsured Motorists limits I have elected will remain the same in any renewal supplementary, replacement or substitute policy, even if I change my Bodily Injury Liability limits or insured cars at a later date. However, if I change my Bodily Injury Liability limits to an amount less than my elected Uninsured/Under-insured Motorists limits, I understand that my Uninsured/Underinsured Motorists limits will automatically be lowered to the same amount.
If at any time I desire to change this election, it will be my responsibility to notify the Company in writing.
Signed [] Dated
Policyholder Name

Brief in Support of Defendant’s Motion for Summary Judgment, exhibit 1.

Prior to and after the 10/9/84 elective writing, Mr. Tukovits’ policy reflected that his UM/UIM coverage was $15/30. Twenty-seven changes were made to the insurance policy during this time, nineteen of which were made prior to Mr. Tukovits’ death on May 7, 1992, when he died in a fatal accident with an uninsured motorist. Subsequently, Mrs. Tukovits filed a declaratory judgment action against Prudential seeking a declaration that the 10/9/84 elective writing was invalid. In the absence of a valid election of UM/UIM limits, Mrs. Tukovits argued that the MVFRL mandated that the UM/UIM limit be equal to the bodily injury limit of $100,000 per vehicle, for four vehicles, for a total of $400,000.

Mrs. Tukovits and Prudential filed cross-motions for judgment on the pleadings, but the trial court denied both motions and ordered that the issues involved be addressed in motions for summary judgment. Mrs. Tukovits and Prudential then filed cross-motions for summary judgment. The trial court held oral arguments on these motions and subsequently granted summary judgment in favor of Mrs. Tukovits. Prudential filed a motion for reconsideration, which the trial court dismissed for lack of jurisdiction. This appeal followed immediately thereafter.

Prudential now raises the following issues:

1. Did the trial court err in misinterpreting and misapplying 75 Pa.C.S.A. [§§] 1731, 1734 and 1791, such that the insured’s elective writing and the renewal and amendment history of consistently lower UM/UIM limits, were deemed to be irrelevant to the validity of the insured’s waiver of higher UM/UIM limits?
2. Did the trial court err in holding that [Prudential] produced insufficient evidence to raise a factual issue of knowing and voluntary waiver of higher UM/UIM limits, where the insured signed a written elective writing and consistently affirmed his chosen limits as evidenced by the policy’s subsequent renewal and amendment history?
3. Did the trial court err in concluding that the insured did not make a knowing and voluntary election of his chosen UM/UIM limits?

Appellant’s Brief, at p. 3.

Our scope of review is plenary when reviewing the propriety of a trial court’s entry of summary judgment. Schriver v. Mazziotti, 432 Pa.Super. 276, 278, 638 A.2d 224, 225 (1994), alloc. den., 539 Pa. 638, 650 A.2d 52. We must examine the entire record in the light most favorable to the non-moving party and resolve all doubts against the moving party when determining if there is a genuine issue of material fact. Id. We will only reverse the trial court’s decision if there was a manifest abuse of discretion. Accu-Weather, Inc. v. Prospect Communications, Inc., 435 Pa.Super. 93, 98, 644 A.2d 1251, 1254 (1994). An abuse of discretion occurs “when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.” Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 447, 625 A.2d 1181, 1185 (1993).

Summary judgment is granted when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact. Pa.R.C.P. 1035(b), 42 Pa.C.S.A. The moving party has the burden of proving the non-existence of any genuine issue of fact. Accu-Weather, Inc., 644 A.2d at 1254. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. Id. The trial court must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Id. Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Id.

The MVRFL provides that insurers must offer UM/UIM coverage equal to bodily injury liability coverage except when the insured requests in writing UM/UIM coverage in amounts less than the limits of liability for bodily injury. 75 Pa.C.S.A. §§ 1731 and 1734. If the insurer provides notice pursuant to the form set forth in section 1791, the insured is presumed to have been advised of the benefits and limits available under this chapter. 75 Pa.C.S.A. § 1791. If the insurer’s notice does not meet the requirements of section 1791, then the insurer must establish waiver pursuant to the rule set forth in Johnson v. Concord Mutual Insurance Co., 450 Pa. 614, 300 A.2d 61 (1973). Botsko v. Donegal Mutual Insurance Co., 423 Pa.Super. 41, 45, 620 A.2d 30, 32 (1993), alloc. den., 536 Pa. 624, 637 A.2d 284 (1993). In accordance with Johnson, Botsko, 620 A.2d at 32 (quoting Byers v. Amerisure Insurance Co., 745 F.Supp. 1073, 1076 (E.D.Pa.1990), affirmed, 935 F.2d 1280 (3d Cir.1991)).

a waiver of the statutory right to certain levels of uninsured motorists coverage must be “[affirmatively expressed in writing by the insured,” which must evidence “[a]n express agreement or acquiescence on the part of the insured to delete or relinquish this protection....” 450 Pa. at 621, 300 A.2d at 65.

A two-step analysis is required in determining whether the insured made a knowing and intelligent election in writing for lower UM/UIM coverage. First, in order for the writing to evidence “an express agreement or acquiescence on the part of the insured” to elect an amount of UM/UIM coverage less than the statutory mandate, the insured must have been made aware of the coverage that was available. Botsko, 620 A.2d at 33; Shipe v. Allstate Insurance Co., 791 F.Supp. 109, 111 (M.D.Pa.1992); Byers, 745 F.Supp. at 1076; Groff v. Continental Ins. Co., 741 F.Supp. 541, 548 (E.D.Pa.1990). Without having been made aware of the coverage that was available, the insured could not knowingly and intelligently waive the coverage mandated by statute. Botsko, 620 A.2d at 33.

Second, upon finding initial evidence that the insured was made aware of the coverage available, the trial court may look to events which occurred prior to and after the election in writing for further evidence that the insured acted knowingly and intelligently. Groff, 741 F.Supp. at 548; Shipe, 791 F.Supp. at 112 (citing Groff, supra).. For example, such relevant events may include- whether the insured previously obtained the same level of UM/UIM coverage, whether the premiums paid reflected the reduced level of UM/UIM coverage, whether the insured ever questioned the level of UM/UIM coverage, whether the insured amended or added vehicles to their policy, and whether the forms that evidenced such transactions reflect the level of UM/UIM coverage. Groff, 741 F.Supp. at 548; Shipe, 791 F.Supp. at 112 (citing Groff, supra).

In addressing Prudential’s three issues raised on appeal, we must determine whether the trial court’s grant of Mrs. Tukovits’ motion for summary judgment constituted an abuse of discretion. For the following reasons, we find it was not.

The trial court held as follows:

Mr. Tukovits’ policy was renewed twice a year from 1983 through 1993. During this time period, twenty seven [sic] changes were made to the insurance policy. Nineteen changes were made prior to Mr. Tukovits’ death. However, those changes only added and deleted vehicles and added a driver. Tukovits never changed any of the amounts of coverage. In fact, forty three [sic] renewal and amendment notices were sent to the Tukovits’s [sic] but the coverage limits were never amended. There is no evidence that Tukovits was informed or that he waived the benefits and limits available or that he understood underinsured motorists insurance.
* * * * * *
In the present matter, there is no evidence that Tukovits ever reviewed his policy. Both Mr. Tukovits and the agent who sold the insurance policy have passed away. There is no evidence showing how the policy was sold, if any explanation was made, Botsko, supra, and if there was any express agreement or acquiescence to lessen protection. Byers, supra, Johnson, supra. The evidence shows only that Mr. Tukovits repeatedly renewed his policy limits by checking a box.

Order and Opinion of February 1, 1995, at pp. 7-9.

The uncontested evidence reflects the following: Prudential did not comply with the particular notice requirements set forth in section 1791 with regard to the 10/9/84 elective writing; thus Prudential had the burden of establishing waiver pursuant to Johnson, supra; the express terms of the 10/9/84 elective writing appeared as set forth above; and Mr. Tukovits signed the 10/9/84 elective writing and renewed and amended his policy many times prior to and after 1984.

The record reflects that no genuine issue of material fact remained regarding the evidence submitted. The only issue to be resolved by the trial court was whether the signed elective writing and renewals constituted waiver as a matter of law. The trial court concluded that in the absence of any additional evidence, such as testimonial evidence as to whether Mr. Tukovits knowingly and intelligently reduced his UM/ UIM coverage, waiver could not be proven. We find that this decision was reasonable in light of the record evidence. Because of the strong public interest involved, deletion or reduction of UM/UIM coverage is determined by stricter than traditional rules of waiver and estoppel. Botsko, 620 A.2d at 33.

Prudential argues that the trial court did not properly consider the evidence submitted, particularly, the evidence regarding renewals and amendments. However, considering all of the evidence in the light most favorable to Prudential, we cannot find that that evidence proved waiver as a matter of law. The record reflects that the text of the 10/9/84 elective writing indicated the available statutory coverage.' Additionally, the 10/9/84 elective writing offered all available levels of UM/UIM coverage from which to choose, including the statutory level equal to bodily injury coverage and the opportunity to “write in” any level of coverage. The record also reflects-that Mr. Tukovits renewed his policy twice a year from 1983 through 1993. Prior to and after the 10/9/84 elective writing, Mr. Tukovits’ policy reflected that his UM/UIM coverage was $15/30. Twenty-seven changes were made to the insurance policy during this time, nineteen of which were made prior to Mr. Tukovits’ death. Although these changes only pertained to adding and deleting cars and a driver, the record reflects that Mr. Tukovits had his insurance policy physically before him at least twenty-two times between 10/9/84 and his death in 1992. Furthermore, Mr. Tukovits paid premiums that reflected the levels of coverage provided.

Clearly, the evidence above is relevant and does tend to raise an inference that Mr. Tukovits knowingly reduced his UM/UIM coverage when he signed the 10/9/84 elective writing. However, without any additional evidence regarding such issues as whether Mr. Tukovits ever read his insurance policy, ever had it explained to him and ever realized the magnitude of marking and signing the 10/9/84 elective writing, we cannot hold that Prudential produced sufficient evidence to prove waiver as a matter of law.

Prudential additionally argues that Mr. Tukovits’ earlier policy constituted a prior selection of lower UM/UIM limits such that section 1734 required Mr. Tukovits to request by writing any desired increase in his previously chosen UM/UIM limits. We find that Prudential’s argument cannot be supported by a fair reading of the statute. Although it is clear that Prudential issued a policy to Mr. Tukovits prior to 1984 which provided UM/UIM coverage and that Mr. Tukovits renewed the policy without requesting an increase in UM/UIM coverage, the earlier policy was not issued “under section 1731 ” since that section did not come into existence until October 1,1984. Thus, the 10/9/84 elective writing and renewal was the first time Prudential issued a policy to Mr. Tukovits subject to sections 1731, 1734 and 1791. As such, Prudential was required to provide UM/UIM coverage equal to Mr. Tukovits’ bodily injury coverage unless Mr. Tukovits voluntarily and knowingly reduced his UM/UIM coverage in writing as addressed above.

Order affirmed.

BECK, J., files a concurring statement.

BECK, Judge,

concurring.

I join the majority opinion. I write simply to emphasize that summary judgment is particularly appropriate in this case because both Mr. Tukovits and his insurance agent, the primary witnesses who could provide “additional evidence regarding such issues as whether Mr. Tukovits ever read his insurance policy, ever had it explained to him and ever realized the magnitude of marking and signing” the elective writing (Majority Opinion at 550-51), have died.

      . 75 Pa.C.S.A. §§ 1701-1799.7.

      . Joseph Tukovits signed and dated this form.

      . Prudential now submits documentation that reflects that Mr. Tukovits had his insurance policy with Prudential since 1974, and that in 1978 he reduced his UM/UIM coverage from $25/50 to $15/30. We may not consider this evidence as it was not preserved in the trial court record. Pa.R.A.P. 302, 42 Pa.C.S.A.

      . Mrs. Tukovits also filed an amended motion for summary judgment.

      . On March 10, 1995, the trial judge dismissed Prudential's motion for reconsideration as untimely filed and struck it from the record pursuant to Pa.R.A.P. 1701(a).

      . We note that Mrs. Tukovits argues that Prudential waived this argument pursuant to Pa.R.A.P. 302 because it did not make it during the trial court proceedings. However, although Mrs. Tukovits “correctly asserts that this Court will normally not entertain a theory on appeal that was not presented below, the justification behind this policy is not implicated when a party is in the position of opposing a summary judgment motion.” Kelly by Kelly v. Ickes, 427 Pa.Super. 542, 548, 629 A.2d 1002, 1005 (1993).
      In 1984, section 1734 provided in pertinent part as follows:
      If the named insured has selected uninsured and underinsured motorist coverage in connection with a policy previously issued to him by the same insurer under section 1731, the coverages offered need not be provided in excess of the limits of liability previously issued for uninsured and underinsured motorist coverage unless the named insured requests in writing higher limits of liability for these coverages.

        See 75 Pa.C.S.A. § 1734, Historical and Statutory Notes.


author: WIEAND, Judge.

text:
    672 A.2d 792
    COMMONWEALTH of Pennsylvania v. Joseph GROSSO, Appellant.
    Superior Court of Pennsylvania
    Submitted Nov. 13, 1995.
    Filed Feb. 27, 1996.

      Robert T. Yurchak, Nesquehoning, for appellant.
    Charles A. Bressi, jr., Assistant District Attorney, Potts-ville, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and FORD ELLIOTT, JJ.
   WIEAND, Judge.

Joseph Grosso was tried non-jury, upon stipulated facts, and was found guilty of possession of a small amount of marijuana and possession of drug paraphernalia. He was sentenced for the drug paraphernalia charge to serve a one (1) year period of probation, to perform forty (40) hours of community service and to pay a fíne of three hundred ($300.00) dollars. On direct appeal from the judgment of sentence, Grosso asserts that, absent reasonable suspicion that he was presently involved in criminal activity, it was improper for police to seek his consent for a search of his vehicle and person during a routine traffic stop. After careful review, we affirm the judgment of sentence.

In reviewing the ruling of a suppression court, “[a]n appellate court must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom.” Commonwealth v. Nester, 443 Pa.Super. 156, 159, 661 A.2d 3, 4 (1995), citing Commonwealth v. Oglialoro, 377 Pa.Super. 317, 318, 547 A.2d 387, 387 (1988), aff'd, 525 Pa. 250, 579 A.2d 1288 (1990). This Court’s “scope of appellate review is limited primarily to questions of law.” Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988), citing Commonwealth v. White, 358 Pa.Super. 120, 123, 516 A.2d 1211, 1212 (1986). “ ‘If the evidence supports the [suppression] court’s factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.’ ” Commonwealth v. Robinson, 438 Pa.Super. 119, 123, 651 A.2d 1121, 1123 (1994), quoting Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990).

Instantly, the pertinent facts have been summarized by the suppression court in the following manner:

[O]n October 13,1994 Officer Weaver of the Tamaqua Police Department was in the Owl Creek section of Tamaqua, in uniform, in a marked police vehicle operating a VASCAR speed timing device. At 10:30 a.m. on that date he observed a 1973 Chevrolet Pick-up truck traveling 50.7 miles per hour in a posted 35 mile per hour zone.
The officer stopped the truck and secured the driver’s license, registration card and insurance card from the occupant who was the defendant. He then returned to his police vehicle in order to write a speeding ticket. He also ran a license check on the truck over his radio. As he was writing the ticket, an off-duty Tamaqua Police Officer, Jack Soberick, who happened to hear the radio call on a monitor, called Officer Weaver on a cellular phone and informed him that the defendant was known to Officer Soberick, was known to have carried concealed weapons in the past, may be carrying a concealed weapon at the present time, was an “Act 64” violator (drug user), and that Officer Weaver should “be careful.” Officer Weaver finished preparing the speeding ticket, returned to the truck, handed the defendant all of his cards, and had him sign the citation. While so engaged, he noticed that the defendant appeared to be extremely nervous, much more nervous than usual for a person being ticketed for speeding. Officer Weaver then asked the defendant if he had any weapons in the vehicle or on his person to which the defendant responded “no”. Officer Weaver then asked the defendant for consent to search his person and the vehicle for weapons. The defendant replied by stating that it was “all right” with him to do so because he had no weapons. Officer Weaver then had the defendant remove himself from the truck and directed him to place his hands on the hood of the truck so he could pat him down for weapons. While patting him down, [Officer Weaver] felt a hard object in [the defendant’s] right jacket pocket. He squeezed the pocket and felt two vials, a soft substance and something hard which he could not identify. The defendant was wearing an olive green fatigue jacket with a flap over the pocket where the items were located. [Officer Weaver] reached into the defendant’s pocket and found a plastic bag which contained green vegetable matter, two bláck film vials, one of which contained three burnt marijuana cigarettes and the- other green vegetable matter. He also found two plastic bags containing suspected marijuana seeds. The hard item was a deer antler which had been fashioned into a pipe that had residue on it which he suspected to be marijuana. The deer antler had been in a pouch which also contained a lighter. The items were seized for analysis and the vegetable matter and residue were determined to be marijuana.

Suppression Court Opinion at pp. 1-2.

It is well settled that “a police officer may stop a motor vehicle if he or she reasonably believes that a provision of the Motor Vehicle Code is being or has been violated.” Commonwealth v. DeWitt, 530 Pa. 299, 304, 608 A.2d 1030, 1032 (1992). “Incident to this , stop, an officer may check the vehicle’s registration, the driver’s license and obtain any information necessary to enforce provisions of the motor vehicle code.” Commonwealth v. Sedgwick, 434 Pa.Super. 448, 450, 644 A.2d 167, 167-168 (1994). See also: 75 Pa.C.S. § 6308(b); Commonwealth v. Henderson, 444 Pa.Super. 170, 175-77, 663 A.2d 728, 731 (1995) (en banc). Moreover, “when an officer detains a vehicle for violation of a traffic law, it is inherently reasonable that he or she be concerned with safety and, as a result, may order the occupants of the vehicle to alight from the car.” Commonwealth v. Brown, 439 Pa.Super. 516, 527, 654 A.2d 1096, 1102 (1995). See: Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In addition, the courts have held that “an officer has the right to conduct a weapons search of an automobile if there is a reasonable belief that the suspect-is dangerous and that the suspect might gain immediate control of weapons.” Commonwealth v. Austin, 428 Pa.Super. 466, 471, 631 A.2d 625, 627 (1993). See: Michi gan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). See also: Commonwealth v. Fountain, 423 Pa.Super. 296, 301, 621 A.2d 124, 127 (1992), cert. denied, — U.S.-, 114 S.Ct. 1058, 127 L.Ed.2d 378 (1994); Commonwealth v. Morris, 422 Pa.Super. 343, 350, 619 A.2d 709, 712 (1992).

As a general rule, however, a police officer may not conduct a warrantless search of a vehicle pursuant to an ordinary traffic stop without having independent probable cause that the occupants of the vehicle have committed a felony or that evidence of a crime is concealed within the vehicle. Commonwealth v. Shaffer, 447 Pa. 91, 104, 288 A.2d 727, 735 (1972), cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972); Commonwealth v. Lewis, 442 Pa. 98, 101, 275 A.2d 51, 52 (1971). See also: Commonwealth v. Germany 423 Pa.Super. 393, 398-399, 621 A.2d 589, 592 (1993). Similarly, in Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992), the Superior Court made the following observations:

[W]hen conducting a routine traffic stop, an officer may request a driver’s license and vehicle registration, run a computer check and issue a citation. [United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988) ]. See also Commonwealth v. Robinson, 399 Pa.Super. 199, 582 A.2d 14 (1990), appeal denied in 528 Pa. 629, 598 A.2d 282 (1991), (demand to inspect vehicle identification number is within scope of police authority pursuant to traffic violation stop). Upon producing a valid driver’s license and registration, the driver must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. Id. In order to justify detaining the driver for further questioning, the officer must have “reasonable suspicion ‘of illegal transactions in drugs or of any other serious crime.’ ” Id. (quoting Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)).

Id. at 261, 609 A.2d at 181-182. See also: Commonwealth v. Talley, 430 Pa.Super. 351, 356-357, 634 A.2d 640, 643 (1993); Commonwealth v. Parker, 422 Pa.Super. 393, 400-401, 619 A.2d 735, 738-739 (1993).

In the instant case, appellant concedes that Officer Weaver acted lawfully when the officer stopped appellant’s vehicle for speeding. Appellant contends, however, that upon issuing him a traffic citation, Officer Weaver had no basis for further detaining him to question him about his possible possession of a weapon or to request permission to search his vehicle or person. According to appellant, a report from a fellow officer that appellant was known to carry weapons in the past did not provide Officer Weaver with reasonable suspicion that he was presently involved in criminal activity. In support of this argument, appellant relies upon the decisions of the Superior Court in Commonwealth v. Parker, supra and Commonwealth v. Lopez, supra, wherein the Court held that, pursuant to a traffic stop, “police may only detain a driver and request a search if there are reasonable and articulable grounds to suspect criminal activity or contraband.” Commonwealth v. Parker, supra at 400-401, 619 A.2d at 738, citing Commonwealth v. Lopez, supra. Therefore, appellant concludes, the consent which he gave to Officer Weaver to search his vehicle and person was the fruit of an illegal detention and, thus, ineffective to justify the search.

At the suppression hearing in this case, Officer Weaver testified that, while he was preparing a traffic citation to issue to appellant, he was contacted, via cellular telephone, by Officer Soberick, who informed Weaver that appellant was a drug user and was known to carry concealed weapons. Soberick urged Weaver to exercise caution in dealing with appellant. Thereafter, based upon the information provided by his fellow officer, along with his own observation that appellant was extremely nervous, Officer Weaver inquired whether appellant was carrying a weapon and requested consent to search appellant’s vehicle and person. In holding that no violation of appellant’s constitutional rights had occurred, the suppression court reasoned as follows:

The U.S. Supreme Court has ruled that:
“When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, he may conduct a limited protective search for concealed weapons.”
Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), as quoted in Com. v. Mears, 283 Pa.Super. 416, 424 A.2d 533 (1981). Moreover, reasonable cause for a “stop and frisk” need not be based solely on the officer’s observation. Rather, such reasonable cause may be provided by an informant’s tip. Com. v. Mears, Id. In the instant case, Officer Weaver noted from his own observation that the defendant appeared to be more nervous than is usual for a person being cited for speeding. However, in the absence of any other information it is questionable whether such an observation would provide the reasonable cause necessary to support a “stop and frisk” or justify requesting a consent to search the defendant or his vehicle. In our case, however, Officer Weaver also had been informed by a fellow police officer that the defendant had been known to carry concealed weapons in the past and may have one on his person at the time of the confrontation. He was also admonished to “be careful” and had been informed that the defendant had been an “Act 64” violator (drug user). This information from an extremely reliable informant, coupled with the previously mentioned observation of the officer, constituted sufficient cause to justify a pat down for weapons. Unlike the situation in Lopez and Parker, the officer in the instant case had been alerted to the possibility that the person with whom he was confronted might be carrying a concealed weapon and was a drug violator. Given the fact that Officer Weaver had been provided with this information and the fact that he observed the defendant’s nervous demeanor, we cannot conclude that he acted unlawfully when he requested consent to search the defendant and his vehicle.

Suppression Court Opinion at p. 4.

After careful review, we agree with the suppression court that, under the circumstances with which he was confronted, Officer Weaver could reasonably have concluded that appellant was armed and dangerous, and had immediate access to a concealed weapon. As such, the officer, for his own protection, was permitted to detain appellant briefly to ascertain whether appellant, in fact, had a weapon. Accordingly, appellant’s subsequent consent to the search of his person and vehicle was not the product of an illegal detention. Moreover, under the totality of the circumstances surrounding Officer Weaver’s search of appellant and his vehicle, it appears that appellant’s consent to that search was voluntarily given. See: Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Commonwealth v. Bagley, 408 Pa.Super. 188, 201, 596 A.2d 811, 817 (1991), cert. denied, 506 U.S. 1002, 113 S.Ct. 606, 121 L.Ed.2d 541 (1992). The suppression court, therefore, did not err by denying appellant’s motion to suppress the evidence obtained by Officer Weaver.

The judgment of sentence is affirmed.

FORD ELLIOTT, J., concurs in the result.

      . A concurrent thirty (30) day probationary period was imposed for possession of a small amount of marijuana.


author: CERCONE, Judge: OLSZEWSKI, Judge,

text:
    672 A.2d 796
    COMMONWEALTH of Pennsylvania, Appellant, v. James P. MICKLOS.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1995.
    Filed Feb. 28, 1996.

      Iva C. Dougherty, Assistant District Attorney, Reading, for Commonwealth, appellant.
    Robert S. Trotuer, Allentown, for appellee.
    Before ROWLEY, President Judge, and TAMILIA, KELLY, POPOVICH, HUDOCK, JAMIESON, CERCONE, BROSKY and OLSZEWSKI, JJ.

       President Judge Rowley did not participate in the consideration or decision of this case.

       Jamieson, J. did not participate in the consideration or decision of this case.

   CERCONE, Judge:

We considered this case en banc primarily to determine whether the Commonwealth may appeal from an order of court which granted a criminal defendant’s suppression motion and concurrently dismissed all charges filed against that defendant, thereby preventing the Commonwealth from pursuing its right to appeal the adverse rulings of a suppression court. After reviewing the circumstances of this case in light of the applicable law, we conclude that the challenged Commonwealth appeal does not implicate principles of double jeopardy.

On April 24, 1993, at approximately 10:10 p.m., members of an ambulance crew for the Kutztown Basic Life Support Unit, saw the driver of a tan Ford Ranger pickup truck, appellee James P. Micklos, swerve across the center line on State Route 222 and nearly collide with a car. N.T. 1/11/94 at 3-4. The crew followed the truck for about one mile, monitoring the driver’s erratic weaving motions, and then radioed local police. N.T. 1/11/94 at 5-6. Patrolman Thomas Glass, a part-time police officer for the Fleetwood Police Department, responded to the call and joined the ambulance near the intersection of Routes 222 and 662. N.T. 1/11/94 at 15. Once the crew chief pointed to the vehicle that had been swerving, Officer Glass pulled in behind the truck and immediately activated his emergency lights and siren to alert the driver to pull off the road. The driver continued at a slow speed for two and one-half miles before ultimately complying. N.T. 1/11/94 at 16-17. Because the vehicles were entering into the jurisdiction of the Northeastern Berks Regional Police Department, Officer Glass requested that department’s assistance. Sergeant Michael Weiser responded to the request within a matter of minutes. N.T. 1/11/94 at 19.

Officer Glass demanded appellee’s license, insurance and registration and, after some difficulty, appellee produced that information. N.T. 1/11/94 at 18. According to Sergeant Weiser, appellee exuded a moderate odor of alcohol, and appellee’s eyes were bloodshot. N.T. 1/11/94 at 32. Because Officer Glass was not certified to conduct field sobriety tests, he deferred to the experience of Sergeant Weiser. N.T. 1/11/94 at 19. After appellee failed these sobriety tests, the officers arrested him and escorted him to a DUI processing center where his blood alcohol content was determined to be 0.140%. N.T. 1/11/94 at 47. At no time did either officer personally observe appellee’s erratic driving.

The Honorable Jeffrey K. Sprecher presided over a non-jury trial. At the close of testimony, defense counsel asked the trial court to “address the issue of probable cause to stop the vehicle.” N.T. 1/11/94 at 75. The trial court inquired as to whether the “issue of probable cause [can] be raised at- the time of trial if it’s not raised at the time of suppression? -Is it waived?” N.T. 1/11/94 at 77.

After receiving the parties’ briefs on that issue, the lower court, on March 15, 1994, issued Findings of Fact and Conclusions of Law in Disposition of Defendant’s Omnibus Pretrial Motion. The trial court concluded that Patrolman Glass did not have probable cause to stop appellee’s vehicle and that the evidence gathered as a result of the improper stop must be suppressed. Findings of Fact and Conclusions of Law in Disposition of Defendant’s Omnibus Pretrial Motion filed March 15, 1994 at 2. Consequently, the court issued an order on that same date granting “Defendant’s oral suppression motion” and concurrently dismissing all charges. Trial court order filed March 15,1994. ,

On appeal from that order, the Commonwealth, argued that the lower court erred in considering an oral suppression motion presented after the close of evidence, in suppressing evidence, and in dismissing the charges after granting the suppression motion. Although the trial judge defended his grant of the suppression motion, he conceded that he had erred in dismissing the charges. Trial court opinion dated June 15, 1994 at 4. A majority of. a panel of this court declined to address the issues raised in the Commonwealth’s appeal after concluding that a remand to the trial court would place appellee in double jeopardy. Commonwealth v. Micklos, (slip opinion filed March 29, 1995 at 4) (Johnson, J. dissenting). We granted the Commonwealth’s petition for reargument before this Court en banc.

Before considering the substance of the issues raised on appeal, we wish to address a discrepancy in the record. The trial court, in its Findings of Fact, made the following observation:

At the commencement of the bench trial, Mr. Micklos made an oral motion to suppress the evidence gained from the allegedly illegal stop of his vehicle. The Commonwealth protested that this suppression motion was untimely filed pursuant to Rule 323 of the Pennsylvania Rules of Criminal Procedure and should not be heard. Counsel agreed that the matter should be briefed.
In an effort aimed at judicial economy and the convenience of witnesses, it was decided that the taking of evidence not be delayed pending decision on the timeliness of the suppression motion. It was agreed that if it was determined that the content of the suppression motion was deemed waived by Criminal Procedure Rule 323 then the proffered evidence would constitute the bench trial and an appropriate verdict would be rendered. If, on the other hand, the suppression motion was ruled timely then the evidence would be considered first as to its admissibility. The decision on the suppression motion would then dictate what evidence, if any, would be considered as to the bench trial.

Findings of Fact and Conclusions of Law in Disposition of Defendant’s Omnibus Pretrial Motion filed March 15, 1994 at 1. Despite an exhaustive review of the record certified to this Court on appeal, including the notes of testimony, we have been unable to locate any oral suppression motion made by appellee at the beginning of trial. Nor do the docket sheets refer to that suppression motion.

An appellate court is bound by a suppression court’s findings of fact if those findings are supported by the record. Commonwealth v. Bennett, 412 Pa.Super. 603, 606, 604 A.2d 276, 277 (1992) (quoting Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988)). We are not bound by factual findings wholly lacking in evidence. Id. For purposes of appellate review, what is not of record does not exist. Commonwealth v. Dietterick, 429 Pa.Super. 180, 188, 631 A.2d 1347, 1351 (1993), appeal denied, 538 Pa. 608, 645 A.2d 1312 (1994). Consequently, we must proceed under the assumption that defense counsel first presented the motion to suppress at the close of testimony.

Preliminarily, we must determine whether the double jeopardy clauses of the Federal and State Constitutions bar a Commonwealth appeal from an order granting a defendant’s suppression motion and concurrently dismissing all charges filed against that defendant. In general, the double jeopardy clause protects a defendant from being harassed by multiple prosecutions for the same, wrongful act and against multiple punishments for the same crime. Commonwealth v. Rightley, 421 Pa.Super. 270, 276, 617 A.2d 1289, 1292 (1992). The protections afforded by the double jeopardy clauses of the United States and Pennsylvania. Constitutions are co-extensive. Commonwealth v. Lively, 530 Pa. 464, 467, 610 A.2d 7, 8 (1992). In a criminal jury trial, jeopardy attaches when the jury is sworn. In a bench trial, however, jeopardy attaches when the trial court begins to hear the evidence. Commonwealth v. Metzer, 430 Pa.Super. 217, 231 n. 4, 634 A.2d 228, 234 n. 4 (1993).

According to the trial court, jeopardy never attached in this case. Specifically, the trial judge claims that his “decision to hear the suppression motion, and the dismissal of charges ruling prohibiting introduction of evidence stemming from the illegal stop, means, in effect, that a bench trial was never reached.” Trial court opinion dated June 15, 1994 at 3. We cannot agree. See United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354-1355, 51 L.Ed.2d 642 (1977) (trial court’s characterization of its action is not determinative).

This court has previously been asked to consider whether a lower court proceeding constituted a suppression hearing or a trial in assessing the propriety of a Commonwealth appeal. Commonwealth v. Jung, 366 Pa.Super. 438, 531 A.2d 498 (1989). In Jung, a jury had previously found appellee not guilty of assault. During that trial, the Commonwealth introduced into evidence a taped telephone conversation. Appellee, the recorder of that conversation, was subsequently charged with violations of the Wiretap and Electronic Surveillance Control Act and, after waiving his right to a jury, proceeded to a second trial. Id. at 439-40, 531 A.2d at 499.

At that second trial, the lower court ordered the Commonwealth to call its first witness. In a requested offer of proof, the Commonwealth revealed that the witness would be used to introduce the tape and a transcript thereof into evidence. Id. at 440, 531 A.2d at 499. The trial court ruled that the Wiretap Act did not apply to the conduct of private citizens and sustained appellee’s objection to the introduction of the tape. After denying the Commonwealth’s request to appeal that ruling, the trial court found appellee not guilty and dismissed the charges. Id.

On appeal, the Commonwealth characterized appellee’s objection as a suppression motion and the proceeding below as a pre-trial hearing at which jeopardy had not yet attached. Id. at 441, 531 A.2d at 499. To the contrary, the court noted that double jeopardy attaches in a bench trial when the accused has been subjected to a charge and the trial court has begun to hear the evidence. Id. at 443, 531 A.2d at 500-501. In Jung, it was beyond dispute that the accused was subjected to a charge. Further, by requesting an offer of proof, the trial court had begun to hear the evidence. “[T]hough the proceeding itself was brief and no witnesses actually testified, a trial in which double jeopardy attached had taken place.” Id. at 443, 531 A.2d at 500-501.

Similarly, in the case at issue, the lower court presided over a bench trial, not a suppression hearing. Appellee had been charged with violations of the Motor Vehicle Code. Moreover, the trial court had not only begun to hear the evidence, but had actually concluded the evidentiary portion of the trial. As such, we are presented with a trial at which jeopardy had attached.

According to principles of double jeopardy, as codified in the Pennsylvania Crimes Code, when a prosecution is premised on a violation of the same provision of the statutes and the same facts as a former prosecution, that prosecution is barred if “[t]he former prosecution resulted in an acquittal____” 18 Pa.C.S.A. § 109. “A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.” United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978). This principal reflects the purposes underlying the prohibition against double jeopardy:

[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Id. at 87, 98 S.Ct. at 2192 (quoting Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)). A defendant is acquitted only when “the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.” Id. (quoting Martin Linen Supply Co., supra, 430 U.S. 564, 97 S.Ct. 1349). See Commonwealth v. Smalis, 331 Pa.Super. 307, 480 A.2d 1046 (1984) (en banc), rev’d, Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985), rev’d, Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), order of Superior Court reinstated, 511 Pa. 229, 512 A.2d 634 (1986) (by sustaining a defense demurrer, a trial court determines that the Commonwealth’s evidence is insufficient to sustain a conviction and therefore enters the functional equivalent of an acquittal); In the Interest of E.J., 397 Pa.Super. 120, 579 A.2d 960 (1990) (by “discharging” defendants after citing insufficient evidence as grounds, a trial court makes a factual, not a legal, determination that is not subject to a Commonwealth appeal). Accordingly, we must ascertain whether the dismissal in this case represented a resolution of some or all of the factual elements of the offense charged, i.e., an acquittal, or a legal determination unrelated to guilt or innocence.

As stated, defense counsel, at the close of testimony, moved to suppress evidence seized pursuant to a stop allegedly conducted by a police officer absent probable cause. After reviewing the parties’ briefs, the trial court issued Findings of Fact and Conclusions of Law and an order granting appellee’s suppression motion. See Pa.R.Crim.P. 323(i), 42 Pa.C.S.A. (provides that at the conclusion of a suppression hearing, the trial judge “shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought”). The trial court further ordered that the charges filed against appellee be dismissed.

We begin by observing that the trial court lacked power to dismiss before allowing the Commonwealth an opportunity to appeal the adverse suppression ruling. When the Commonwealth certifies, as in this case, that an order granting a defendant’s motion to suppress will terminate or substantially handicap the prosecution, it is entitled to an appeal as of right. Pa.R.A.P. 311(d), 42 Pa.C.S.A. By entering an order granting suppression and concurrently dismissing all charges, the trial court deprived the Commonwealth of any opportunity to exercise its absolute right to appeal from adverse suppression rulings.

Without a right of appeal ..., the Commonwealth is completely deprived of any opportunity to secure an appellate court evaluation of the validity of the order of suppression ... to deny the Commonwealth its only opportunity of securing an appellate review to determine whether the evidence was properly suppressed is highly unfair to the Commonwealth and the interests of society which it represents. In our zeal to protect and preserve for the accused every constitutional right to which he is entitled we too often forget and neglect to preserve the rights of society which, too, are entitled to consideration.

Commonwealth v. Bosurgi, 411 Pa. 56, 63-64, 190 A.2d 304, 308, cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963) (emphasis in original).

Nevertheless, that the. trial court predicated its dismissal on a legal error is irrelevant to. a double jeopardy analysis if that dismissal constitutes an acquittal , or its functional equivalent.

The fundamental nature of [the double jeopardy] rule is manifested by its explicit extension to situations where an acquittal is “based upon an egregiously erroneous foundation.” Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962).... In Fong Foo the Court of Appeals held that the District Court had erred in various rulings and lacked power to direct a verdict of acquittal before the Government rested its case, [footnote omitted]. We accepted the Court of Appeals’ holding that the District Court had erred, but nevertheless found that the Double Jeopardy Clause was “violated, when the Court of Appeals set aside the judgment of acquittal and directed that petitioners be tried again for the same offense.” 369 U.S., at 143, 82 S.Ct., at 672. Thus when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous.

Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2178-2179, 57 L.Ed.2d 43 (1978).

In the instant case, the challenged dismissal cannot be construed as the functional equivalent of an acquittal. When presented With a suppression motion, the trial court is not asked to resolve questions related to factual guilt' or innocence or to the sufficiency of the evidence. Rather, the suppression court is called on to determine whether the Commonwealth has met its burden of establishing by a preponderance of the evidence that the challenged evidence was not obtained in violation of a defendant’s rights. Pa.R.Crim.P. 323(h), 42 Pa.C.S.A. Accordingly, the trial court in this case determined only that Patrolman Glass lacked the requisite grounds to stop appellee’s vehicle and that evidence derived from that stop must be excluded. Findings of Fact and Conclusions of Law dated March 15, 1994 at 2. In the findings which accompanied the dismissal order, the trial court made no reference to what evidence it would consider in reviewing sufficiency. Nor did the lower court allude to its assessment of appellee’s factual guilt or innocence. To the contrary, the trial judge characterized the dismissal as an improvidently granted suppression remedy. Trial court opinion dated June 15, 1994 at 4. Because the dismissal was predicated wholly on legal rather than factual grounds, it cannot be considered the functional equivalent of an acquittal. See generally United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (Commonwealth may appeal from order granting defendant’s motion to dismiss for preindictment delay because dismissal was predicated on grounds unrelated to guilt or innocence); Commonwealth v. Smith, 391 Pa.Super. 154, 570 A.2d 559 (1990) (district attorney’s decision not to prosecute case after trial court granted suppression of evidence based on exclusionary rule was not an acquittal); Commonwealth v. Adams, 349 Pa.Super. 200, 502 A.2d 1345 (1986) (the trial court granted defendant’s motion to dismiss for failure to prosecute because the Commonwealth’s witnesses had failed to appear at trial; because the court made no factual determination as to defendant’s guilt or innocence, dismissal was not the functional equivalent of an acquittal and did not bar reprosecution). Therefore, the Commonwealth’s appeal from the order granting dismissal does not implicate principles of double jeopardy.

We shall now begin to address the merits of the issues raised in this appeal. The Commonwealth objected to an oral suppression motion presented by defense counsel at the close of evidence. Rule 323(b) of the Pennsylvania Rules of Criminal Procedure stipulates:

Unless the opportunity did not previously exist, or the interests of justice otherwise require, such motion [ie., a motion to suppress any evidence alleged to have' been obtained in violation of the defendant’s rights] shall be made only after a case has been returned to court and. shall be contained in'the omnibus pretrial motion set forth In Rule 306. If timely motion is not made hereunder, the issue of suppression of such evidence shall be- deemed to be waived.

Pa.R.Crim.P. 323(b), 42 Pa.C.S.A. The trial court questioned the timeliness of the motion but nevertheless considered it in the interests of justice. The “interests of justice” exception provides a trial judge with discretion-to excuse a party’s tardy presentation of a suppression motion. Commonwealth v. Kuhn, 327 Pa.Super. 72, 76-77, 475 A.2d 103, 105 (1984) (relying on Commonwealth v. Pinno, 433 Pa. 1, 248 A.2d 26 (1968) (although defendant did not present his oral motion to suppress until, the day of trial, the trial court exercised its discretion in choosing to address it).

' “[Although] the scope of a trial court’s discretionary powers to deal with the factual circumstances it confronts is broad, it is not unlimited. It necessarily follows that the requirement that appellate courts defer to that exercise of discretion is not without limitation either.” Commonwealth v. Powell, 527 Pa. 288, 297, 590 A.2d 1240, 1244 (1991): Accordingly, an appellate court may assess the propriety of a trial court’s exercise of discretion when it is apparent there was an abuse of that discretion. Id. A mere error of judgment does not. constitute an abuse of discretion. Commonwealth v. Kocher, 529 Pa. 303, 306, 602 A.2d 1308, 1310 (1992). Rather, a trial court abuses its discretion “if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will as shown by the evidence or the record.... ” Id. (quoting Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, 103 (1982) (emphasis added)).

At the close of all testimony, counsel for appellee asked the trial court to consider the issue of probable cause to stop appellee’s vehicle. The trial court heard arguments and requested briefs from both the defense and the prosecution regarding the propriety of a suppression motion filed beyond the time limits prescribed by Rule 323(b). After receiving the briefs, the trial judge exercised his discretion to consider the motion, granted the motion and concurrently dismissed the charges without affording the Commonwealth a full opportunity to attack the motion on its merits. We find that the trial court, by considering and ruling on a motion to suppress in this manner, committed an abuse of discretion.

A trial court, by excusing a party’s failure to comply with the timing requirements of Rule 323(b), cannot thereby disregard the remaining rules governing suppression motions. Specifically, when a defendant files a motion to suppress, the trial judge is required to set a time for a hearing, either prior to or at trial “which shall afford the attorney for the Commonwealth a reasonable opportunity for investigation.... ” Pa.R.Crim.P. 323(e), 42 Pa.C.S.A. At that hearing, the Commonwealth bears the burden of going forward and establishing that the challenged evidence was not obtained in violation of the defendant’s rights. Id., Rule 323(h).

In this case, the trial judge presided not over a suppression hearing, but over a trial. At that trial, the Commonwealth sought to present sufficient evidence to satisfy the elements of the crimes charged. At a suppression hearing, however, the Commonwealth would seek to present sufficient evidence to establish that the officer, at the time of the stop, had reasonable and articulable grounds to suspect a violation of the Vehicle Code. 75 Pa.C.S.A. 6308(b); Com monwealth v. McElroy, 428 Pa.Super. 69, 76, 630 A.2d 35, 39 (1993) (en banc). In ruling that the Commonwealth had failed to satisfy the latter burden, the trial court explained:

Patrolman Glass did not specify precisely what information he received as to the manner in which the vehicle was being operated. He indicated merely that he was told-that the vehicle had been swerving. Although ambulance crew member Ronald Shirk provided details of the observed swerving, he did not testify as to what information was communicated to Patrolman Glass.
There is no indication in the record that Patrolman Glass was informed as to the frequency or severity of this swerving. Did the vehicle, for example, leave its lane? If so, how many times and over what period of time? Was there traffic or other obstructions which might necessitate evasive actions?

Trial court opinion dated June 15, 1994 at 2, 4. As the trial court acknowledges, both the ambulance driver and the crew chief testified that appellee had caused his truck to swerve across the center line approximately three or four times over a span of only about one mile and had nearly collided with a passing car. They further described the existing traffic and highway conditions. Had the Commonwealth been confronted prior to or during trial with challenges to the propriety of the initial stop, it may have been able to establish that the arresting officer had been furnished with this information.

By allowing the defense to present a suppression motion after both parties had rested and by failing to provide the Commonwealth -with an opportunity to re-open its case or recall witnesses to satisfy its burden of proving by a preponderance that the evidence was not obtained in violation of the rights of the accused, the trial court overrode the law governing suppression motions. The trial court was incapable of properly ruling on the suppression motion absent a suppression hearing. In so acting, the trial court abused its discretion.

The trial court has also frustrated this Court’s review of the merits of the suppression motion. As stated, the arresting officer testified that he was informed of a vehicle’s swerving. The ambulance crew members detailed the frequency and severity of the swerving and noted that appellant had nearly collided with a passing car after leaving his lane of traffic. At no point during the trial did the officer confirm that he was aware of this information at the time he conducted the stop. Nor did the ambulance crew members avow that they had provided the officer with such details. Accordingly, we remand this matter with directions that the trial court comply with the rules governing suppression motions. Specifically, the trial court must conduct a suppression hearing to provide the Commonwealth an opportunity to establish that the challenged evidence was not obtained in violation of appellant’s rights, ie., that the officer, at the time of the stop, had reasonable and articulable grounds to suspect a violation of the Vehicle Code.

Order granting suppression and dismissing charges vacated. Case is remanded to trial court with directions. Superior Court jurisdiction is relinquished.

OLSZEWSKI, J. files a dissenting opinion in which KELLY, J. joins.

OLSZEWSKI, Judge,

dissenting:

Since I find that the dismissal in this case was the functional equivalent of an acquittal, and that double jeopardy principles therefore prohibit this appeal, I must respectfully dissent.

Both the Federal and Commonwealth double jeopardy clauses protect citizens against multiple punishments or successive prosecutions for the same offense. See U.S. Const. amend. V; PA. Const. art. I, § 10. See also Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992). “The double jeopardy prohibition is often described as a universal principle of reason, justice and conscience.” Commonwealth v. Bolden, 472 Pa. 602, 631, 373 A.2d 90, 103 (1977) (citations omitted). It predates our own Federal and Commonwealth Constitutions, with origins that can be traced back to the Golden Ages of Greece and Rome. Benton v. Maryland, 395 U.S. 784, 794-795, 89 S.Ct. 2056, 2062-2063, 23 L.Ed.2d 707, 716 (1969). Today, it is deeply ingrained in Anglo-American jurisprudence. Id. at 796, 89 S.Ct. at 2063-2064, 23 L.Ed.2d at 717. “The critical consideration is that a defendant should be forced to ‘run the gauntlet’ of a criminal prosecution only once for a single offense.” Commonwealth v. Beck, 502 Pa. 78, 81, 464 A.2d 316, 318 (1983) (citations omitted).

If a defendant is tried and acquitted, double jeopardy principles unequivocally bar retrial on the same offense. Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717, 726 (1978) (“The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal.”). See also 18 Pa.C.S.A. § 109 (codifying the double jeopardy principle that a defendant cannot be retried after acquittal). This unequivocal prohibition is intended to insure that the government does not use its superior resources to wear down a defendant and thereby enhance the possibility that an innocent individual could be found guilty. See, e.g., United States v. DiFrancesco, 449 U.S. 117, 129-131, 101 S.Ct. 426, 433-434, 66 L.Ed.2d 328, 341 (1980).

If a defendant is tried and acquitted, double jeopardy principles also unequivocally bar an appeal by the prosecution, if reversal on that appeal would lead to either a retrial or “further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.” Smalis v. Pennsylvania, 476 U.S. 140, 146, 106 S.Ct. 1745, 1749, 90 L.Ed.2d 116, 122 (1986). The importance of this prohibition cannot be overstated. This Court has noted that “[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘[a] verdict of acquittal ... could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.’ ” Commonwealth v. Jung, 366 Pa.Super. 438, 441-442, 531 A.2d 498, 500 (1987) (quoting United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65, 74 (1978)). Thus, the Commonwealth cannot appeal even the most egregious error if the defendant has been acquitted and reversal on appeal would require a retrial or further proceedings relating to guilt or innocence.

In the instant case, a retrial would clearly be required if the Commonwealth successfully persuaded this Court to reverse the trial court’s dismissal of the charges. Therefore, we agree with the majority that, notwithstanding any allegations of error, the propriety of this appeal hinges on whether appellee was acquitted in the proceedings below.

In defining an “acquittal” for double jeopardy purposes, the United States Supreme Court has held that the label applied to a particular action will not be determinative. See, e.g., Scott, 437 U.S. at 96-98, 98 S.Ct. at 2197, 57 L.Ed.2d at 78. “Rather, a defendant is acquitted only when ‘the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’ ” Id. (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642, 651 (1977)).

In Smalis, a unanimous United States Supreme Court firmly reiterated that “the category of acquittals includes ‘judgments] ... by the court that the evidence is insufficient to convict.’ ” 476 U.S. at 144; 106 S.Ct. at 1748, 90 L.Ed.2d at 121 (quoting Scott, 437 U.S. at 91, 98 S.Ct. at 2194, 57 L.Ed.2d at 74). Thus, our review in the instant ease must focus on whether the trial court’s dismissal was, in substance, a judgment that the evidence was insufficient to convict.

In the proceedings below, appellee was charged with driving under the influence of alcohol, in violation of, 75 Pa.C.S.A. § 3731(a)(1), (a)(4), and (a)(5). The trial court conducted a full trial and heard all of the substantive evidence against appellee. After both sides completed their presentations, the trial court noted, on the record, that it was surprised at the lack of any evidence regarding appellee’s consumption of alcohol. N.T. 1/11/94 at 83; R.R. at 91a. Nevertheless, the court commented that proof of this obviously key element of DUI could be supplied by an officer’s testimony that he detected an odor of alcohol after stopping appellee’s vehicle. N.T. 1/11/94 at 83; R.R. at 91a.

The above statements reveal the trial court’s view that the evidence obtained from the vehicle stop was crucial- to establishing the crime of DUI. When, the trial court subsequently determined that the stop was improper and that all evidence resulting from the stop had to be suppressed, a crucial element of the charged crimes could not be proven. At this point, the trial court dismissed the charges against appellee, without comment.

Thus, the record establishes the following sequence of events: The trial court presided over a bench trial in which the Commonwealth attempted to meet its burden of proof as to the crimes charged; the court highlighted, after the trial, that the Commonwealth’s evidence on a key element was nonexistent but for certain police evidence obtained after a vehicle stop; the crucial police evidence was subsequently suppressed as fruit of the poisonous tree; and the trial court then filed an order dismissing the charges. Under these circumstances, I simply must conclude that the trial court’s dismissal was, in substance, a determination that the Commonwealth’s evidence was insufficient to prove appellee’s guilt beyond a reasonable doubt.

In concluding otherwise, the majority does not attempt to analyze the substance of the trial court’s action. Instead, the majority simply focuses, on the fact that a suppression motion had been filed, then notes that a suppression court’s duty is solely to determine whether certain evidence was- obtained in violation, of a defendant’s constitutional rights, and therefore concludes that the lower court, sitting in its suppression capacity, would not have considered the sufficiency of the evidence. The flaw in this rather cursory analysis is the unsupported assumption that the lower court here was sitting solely in a suppression capacity.

While the trial court did have a suppression motion outstanding, it was also simultaneously presiding over a bench trial on the merits of the case. The result was an unusual hybrid proceeding that presented both suppression and guilt related issues. Under these unique circumstances, I cannot conclude that the trial court was sitting solely as a suppression court with an eye trained solely on suppression issues.

Even more disturbing than the majority’s superficial characterization of the proceeding below is its direct contradiction of that characterization a mere three pages later. In discussing the merits of the Commonwealth’s appeal, the majority states, “[i]n this case, the trial judge presided not over a suppression hearing, but over a trial. At that trial, the Commonwealth sought to present sufficient evidence to satisfy the elements of the crimes charged.” Majority opinion at 575. See also majority opinion at 569 (“... the lower court presided over a bench trial, not a suppression hearing. Appellee had been charged with a violation of the Motor Vehicle Code. Moreover, the trial court had not only begun to hear the evidence, but had actually concluded the evidentiary portion of the trial.”). Therefore, it would seem that the majority recognizes, somewhat belatedly, that the trial court was not sitting solely as a suppression court with an eye trained solely on suppression issues. If the majority agrees that the lower court was not sitting solely in a suppression capacity, then it is improper for the majority to analyze the trial court’s actions for double jeopardy purposes by simply positing that suppression courts do not usually decide issues relating to the sufficiency of the evidence.

For the foregoing reasons, I must conclude that the trial court’s dismissal was predicated on the insufficiency of the evidence, and, therefore, was the functional equivalent of an acquittal. Since appellee was acquitted in the proceedings below, I would hold that this appeal, which seeks a reversal and a re-trial, is absolutely prohibited. See Smalis, 476 U.S. at 145-146, 106 S.Ct. at 1749, 90 L.Ed.2d at 122.

KELLY, J., joins.

      . Appellee was charged with three counts of Driving Under the Influence of Alcohol or Controlled Substance. 75 Pa.C.S.A. §§ 3731(a)(1), 3731(a)(4) and 3731(a)(5).

      . U.S. Const. amends. V, XIV; Pa. Const. art. I, § 10.

      . Similarly, the appellate court in Commonwealth v. Jung, supra, determined that the trial court had erred in concluding that the Wiretap Act did not apply to the conduct of private citizens. That this erroneous ruling formed the basis for the trial court’s finding of not guilty and dismissal of the charges did not affect the appellate court’s resolution of the case. "The trial court’s verdict of acquittal is, final, no matter how erroneous its decision maybe.” Commonwealth v. Jung, 366 Pa.Super. 438, 443, 446, 531 A.2d 498, 500, 502 (1987).

      . Section 6308(b) of the Motor Vehicle Code provides the police with the following authority:
      Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.
      75 Pa.C.S.A. § 6308(b).