author: BROSKY, Judge. OLSZEWSKI, Judge,

text:
    631 A.2d 1329
    COMMONWEALTH of Pennsylvania v. John Wayne HUCKLEBERRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 6, 1993.
    Filed Aug. 31, 1993.

      David P. Traux, Meadville, for appellant.
    Mark D. Waitlevertch, Asst. Dist. Atty., Meadville, for Com., appellee.
    Before CIRILLO, OLSZEWSKI and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence entered following acceptance of appellant’s pleas of guilt to the crimes of involuntary manslaughter and driving while under the influence.

Appellant presents three issues for our review: (1) whether the sentencing court erred in failing to place adequate reasons on the record regarding imposition of sentence within the aggravated range of the Sentencing Guidelines; (2) whether appellant’s convictions for involuntary manslaughter and driving while under the influence merge for sentencing purposes; and (3) whether appellant’s sentence was excessive. For the reasons set forth below, we vacate the judgment of sentence imposed on the DUI conviction arising out of the August, 1991 accident and affirm the judgment of sentence imposed with regard to the other convictions.

Before addressing appellant’s claims, it is necessary to recount the relevant facts and history of this case. Appellant, John Huckleberry, was operating his vehicle in the early morning hours of August 13, 1991. Appellant was accompanied by his friend, Randall Vanderhoff. Both appellant and Mr. Vanderhoff had consumed approximately twelve beers each during the course of their ride and both were intoxicated. Appellant was driving at an excessive rate of speed and caused his vehicle to exit the highway. Appellant’s vehicle struck a mailbox, was then airborne for a distance of thirty-two feet and finally struck a tree, the impact of which caused Mr. Vanderhoff to be ejected from the vehicle. By the time it came to a rest, appellant’s car flipped over onto Mr. Vanderhoff. Mr. Vanderhoff died as a result of the injuries sustained in the accident. Appellant also suffered severe injuries in the crash. Various charges were thereafter instituted against appellant.

While these charges were pending, appellant was involved in a second accident on May 25, 1992. Appellant had consumed approximately seven cans of beer and was driving at an excessive speed when his vehicle left the highway, traveled onto the berm and apparently crashed. Appellant was ejected from the vehicle and again sustained serious injuries. Appellant was subsequently charged with various offenses arising out of this second incident.

Appellant entered into a plea agreement pursuant to which he would enter pleas of guilty to one count of involuntary manslaughter and two counts of driving while under the influence in exchange for the prosecutor’s agreement to nol pros all remaining charges. Appellant’s pleas were accepted by the court on September 18,1992. Appellant was sentenced on October 27, 1992. With regard to the August incident, appellant received a sentence of one and one-half (1)6) to four (4) years’ imprisonment for his involuntary manslaughter conviction. Appellant also received a concurrent sentence of thirty (30) days to twelve (12) months for his DUI conviction. A sentence of one (1) to (2) years was further imposed with respect to appellant’s DUI conviction arising out of the May accident. This sentence was directed to run consecutively to appellant’s other sentences. Appellant thus received an aggregate sentence of two and one-half (2)6) to six (6) years. Appellant filed a timely motion for reconsideration of sentence which was denied by the lower court. Appellant subsequently initiated this timely appeal.

We initially observe that appellant’s first and third issues present a challenge to the discretionary aspects of sentence. Before we may proceed to consider the merits of such claims, appellant must demonstrate that there is a substantial question that his sentence is inappropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b). In furtherance of this requirement, appellant must include in his brief a concise statement of the reasons relied upon for allowance of the appeal. See Pa.R.AP., Rule 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 511-513, 522 A.2d 17, 19 (1987). Although the table of contents makes reference to a statement of reasons relied upon for allowance of appeal, no such statement appears anywhere within appellant’s brief. Appellant therefore has not complied with the directives of Rule 2119(f) and Commonwealth v. Tuladziecki. Because the Commonwealth has specifically objected to appellant’s omission, we are precluded from addressing the merits of appellant’s first and third claims. Commonwealth v. Miller, 414 Pa.Super. 56, 65-66, 606 A.2d 495, 499 (1992), allocatur denied, 531 Pa. 639, 611 A.2d 711 (1992); Commonwealth v. Servich, 412 Pa.Super. 120,133, 602 A.2d 1338,1345 (1992); allocatur denied, 531 Pa. 646, 612 A.2d 984 (1992). Accord Commonwealth v. Martin, 416 Pa.Super. 507, 516, 611 A.2d 731, 735 (1992).

Appellant’s second allegation of error requires us to ascertain whether the convictions arising out of the August, 1991 accident should have been merged for sentencing purposes. Questions of merger relate to the legality of sentence. Commonwealth v. Servich, 412 Pa.Super. at 133, 602 A.2d at 1345. The requirements of Commonwealth v. Tuladziecki and Rule 2119(f) do not apply to legality of sentencing issues. Id. See also 42 Pa.C.S.A. § 9781(a) (the defendant may appeal as of right the legality of the sentence). Consequently, we may proceed to consider the merits of appellant’s merger claim.

Appellant argues that his convictions for DUI and involuntary manslaughter arising out of the August accident merged for sentencing purposes. Appellant does not refer us to any relevant authority in support of his claim. Our own review of the pertinent decisional law nevertheless persuades us that the convictions merge.

The law regarding the merger of offenses has been explicated by our Supreme Court in Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989) and Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989). Pursuant to these decisions, “where the same facts are used to support convictions for crimes having different elements, the crimes do not merge for sentencing purposes, unless the same facts support convictions of lesser included offenses.” Commonwealth v. Weakland, 521 Pa. at 363, 555 A.2d at 1233, citing Commonwealth v. Leon Williams. “A lesser included offense is a crime the elements of which are a necessary subcomponent but not a sufficient component of elements of another crime, the greater offense.” Commonwealth v. Leon Williams, 521 Pa. at 561 n. 2, 559 A.2d at 27-28 n. 2. Thus, “if a person commits one act of criminal violence, and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime.” Commonwealth v. Weakland, 521 Pa. at 364, 555 A.2d at 1233. “If, however, the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime, then the actor will be guilty of multiple crimes which do not merge for sentencing purposes.” Id. We must therefore analyze the elements of each offense to ascertain whether the crime of DUI is a lesser included offense of the crime of involuntary manslaughter.

A person is guilty of involuntary manslaughter “when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.” 18 Pa.C.S.A. § 2504(a). By way of comparison, an individual commits the crime of driving while under the influence of alcohol where it is established that he drove, operated or was in actual physical control of the movement of his vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving. See 75 Pa. C.S.A. § 3731(a)(1). Although the appellate courts have not considered the precise question of whether the crimes of involuntary manslaughter and driving while under the influence of alcohol merge, it has been recognized that the crimes of involuntary manslaughter and homicide by vehicle while driving under the influence merge for sentencing purposes. See Commonwealth v. Kozrad, 346 Pa.Super. 470, 473, 499 A.2d 1096, 1098 (1985). This court has further held that the crimes of driving while under the influence of alcohol and homicide by vehicle while DUI merge for sentencing. See, e.g., Commonwealth v. Nicotra, 425 Pa.Super. 600, 612-613, 625 A.2d 1259,1265-1266 (1993); Commonwealth v. Carbaugh, 423 Pa.Super. 178, 181, 620 A.2d 1169, 1171 (1993); Commonwealth v. Voshall, 387 Pa.Super. 47, 52-53, 563 A.2d 936, 938-939 (1989), affirmed, 529 Pa. 571, 605 A.2d 1222 (1992).

Comparison of the elements of the offenses persuades us that, under the circumstances presented here, the crimes of involuntary manslaughter and driving while under the influence of alcohol to a degree which rendered appellant incapable of driving safely merge for sentencing purposes. To be guilty of involuntary manslaughter, the Commonwealth was required to demonstrate that appellant caused the death of another as a direct result of his performance of an unlawful act in a reckless and grossly negligent manner. 18 Pa.C.S.A. § 2504(a), supra. In this case, the unlawful act forming the basis of appellant’s involuntary manslaughter conviction was that appellant violated 75 Pa.C.S.A. § 3731(a) by driving his vehicle at an excessive rate of speed while under the influence of alcohol to a degree which rendered him incapable of driving safely. Appellant’s DUI conviction was premised on this same conduct, i.e., driving his vehicle while under the influence of alcohol to a degree which rendered him incapable of driving safely as evidenced by his excessive speed and the accident. When viewed in this context, the elements of the crime of DUI thus are a necessary but not sufficient subcomponent of the elements of the greater offense of involuntary manslaughter. See Commonwealth v. Leon Williams, supra and Commonwealth v. Kozrad, 346 Pa.Super. at 473, 499 A.2d at 1098 (essential elements of crime of involuntary manslaughter established essential elements of homicide by vehicle while DUI where the act giving rise to the charge of involuntary manslaughter was a violation of § 3731). Because the same facts support convictions for a lesser included offense, the trial court erred in failing to merge appellant’s convictions for sentencing purposes. Appellant therefore cannot be sentenced with respect to his DUI conviction because it carries a lesser maximum penalty than the conviction for involuntary manslaughter. See Commonwealth v. Kozrad, 346 Pa.Super. at 474, 499 A.2d at 1099 (when crimes merge for sentencing purposes, the defendant may only be sentenced for the most serious crime, i.e., the one which carries the greatest maximum penalty); 18 Pa.C.S.A. § 2504(b) (grading crime of involuntary manslaughter as a misdemeanor of the first degree); 75 Pa.C.S.A. § 3731(e)(1) (classifying a violation of § 3731 as a misdemeanor of the second degree); 18 Pa.C.S.A. § 1104 (a maximum penalty of five years’ imprisonment may be imposed for a misdemeanor of the first degree, but a maximum penalty of two years can only be imposed for a misdemeanor of the second degree).

Where it is determined that a sentence is illegal, we may remand for resentencing or vacate and amend the invalid sentence directly. Commonwealth v. Kozrad, 346 Pa.Super. at 474, 499 A.2d at 1099; Commonwealth v. Alarie, 378 Pa.Super. 11, 19, 547 A.2d 1252, 1256 (1988), allocatur denied, 521 Pa. 616, 557 A.2d 720 (1989). In light of the circumstances in this case, we vacate the judgment of sentence imposed with respect to appellant’s DUI conviction arising out of the August, 1991 accident. The judgment of sentence for involuntary manslaughter and the judgment of sentence regarding the DUI conviction arising out of the May, 1992 incident is affirmed.

Judgment of sentence for August, 1991 DUI conviction vacated. Judgment of sentence for August, 1991 involuntary manslaughter conviction affirmed. Judgment of sentence for May, 1992 DUI conviction affirmed.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

Because I believe that the offense of driving under the influence of alcohol [“DUI”] does not merge with the crime of involuntary manslaughter, I must, most respectfully, dissent. While it is clear that DUI and homicide by vehicle merge for purposes of sentencing, Commonwealth v. Nicotra, 425 Pa.Super. 600, 625 A.2d 1259 (1993) and Commonwealth v. Voshall, 387 Pa.Super. 47, 563 A.2d 936 (1989), it simply does not follow that DUI merges with involuntary manslaughter.

According to the merger doctrine enunciated by the Pennsylvania Supreme Court,

if a person commits one act of criminal violence, and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime. If however, the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime, then the actor will be guilty of multiple crimes which do not merge for sentencing purposes.

Commonwealth v. Weakland, 521 Pa. 353, 364, 555 A.2d 1228, 1233 (1989) (emphasis added). Additionally, “where the same facts are used to support convictions for crimes having different elements, the crimes do not merge for sentencing purposes unless the same facts support convictions of lesser included offenses.” Id. at 363, 555 A.2d at 1233. “A lesser included offense is a crime the elements of which are a necessary subcomponent but not a sufficient component of the elements of another crime, the greater offense.” Commonwealth v. Leon Williams, 521 Pa. 556, 561, 559 A.2d 25, 28 (1989).

Given this standard, I am not persuaded by my learned colleagues’ conclusion that the elements of the crime of DUI are a “necessary” subcomponent of the elements of the greater offense of involuntary manslaughter. Appellant was convicted of § 3731(a)(1) which prohibits the operation of any vehicle while “under the influence of alcohol to a degree which renders the person incapable of safe driving.” 75 Pa.C.S.A. § 3731. Proof of intoxication, a necessary element for conviction under § 3731, is not required to establish the bare elements of involuntary manslaughter.

Involuntary manslaughter is defined as a death resulting from “the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner.” 18 Pa.C.S.A. § 2504. Involuntary manslaughter depends upon reckless or grossly negligent conduct, not necessarily the commission of an unlawful act. See, e.g., Commonwealth v. Feinberg, 433 Pa. 558, 253 A.2d 636 (1969) (store owner who sold canned heat containing methanol to customers known to be alcoholics and known to drink canned heat was guilty of involuntary manslaughter); Commonwealth v. Setsodi, 303 Pa.Super. 482, 450 A.2d 29 (1982) (driver’s conduct in failing to keep eyes on road at time of accident with motorcyclist may have constituted criminal negligence or recklessness for purposes of establishing prima facie case of involuntary manslaughter).

Here, appellant’s act of driving at an excessive rate of speed as he exited the highway alone indicates the reckless and grossly negligent conduct essential for culpability under § 2504. See, e.g., Commonwealth v. Hicks, 203 Pa.Super. 307, 201 A.2d 294 (1964) (reckless driving upon highway is such departure from prudent conduct as to evidence culpability for involuntary manslaughter). In comparison, the act of driving under the influence is the only basis upon which a defendant may be found guilty of the crime of homicide by vehicle while driving under the influence. Commonwealth v. Voshall, supra (merger appropriate where appellant “did not commit any criminal acts beyond that which was necessary to establish the bare elements of homicide by vehicle while driving under the influence”).

158

Although we are not bound by the relevant federal standard for merger in construing our state criminal statutes, Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375 (1992), the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) provides additional guidance. There, the Supreme Court stated that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304, 52 S.Ct. at 182. In this cáse, proof of the greater offense of involuntary manslaughter does not require proof of intoxication, a necessary element for conviction under § 3731(a). Accordingly, I am not persuaded that merger occurred and would affirm the judgment of sentence.

      . 18 Pa.C.S.A. § 2504(a).

      . 75 Pa.C.S.A. § 3731(a)(1).

      . Subsequent blood-alcohol testing revealed that both appellant and Mr. Vanderhoff had blood-alcohol levels of .16% several hours after the accident.

      . Subsequent blood-alcohol testing revealed appellant’s blood-alcohol level to be .21%.

      . Even were we to excuse appellant's failure to file a Rule 2119(f) statement and further assume that appellant has presented a substantial question for review, he would not be entitled to any relief. Sentencing is a matter vested in the sound discretion of the trial court and the lower court’s judgment of sentence will not be disturbed by an appellate court absent an abuse of discretion. Commonwealth v. Clever, 395 Pa.Super. 192, 195, 576 A.2d 1108, 1110 (1990). Accord Commonwealth v. Martin, 416 Pa.Super. 507, 516, 611 A.2d 731, 735 (1992) and Commonwealth v. Wright, 411 Pa.Super. 111, 114, 600 A.2d 1289, 1291 (1991). Moreover, where a pre-sentence investigation report exists, it is presumed that the sentencing court considered all relevant factors and weighed those factors in a meaningful fashion. See Commonwealth v. Devers, 519 Pa. 88, 102, 546 A.2d 12, 18 (1988).
      The sentencing court did not improperly rely upon factors that had been incorporated into the Sentencing Guidelines in imposing sentence within the aggravated range for appellant’s involuntary manslaughter conviction. See Order of Sentence, dated 10/27/92 at 2-3; Pennsylvania Commission on Sentencing Guideline Sentence Form, dated 10/28/92; Trial Court Opinion, filed 1/21/93, at 4-5 (providing that aggravated sentence was imposed because appellant had prior alcohol-related convictions which were not taken into account by the sentencing guidelines; appellant had an alcohol problem; appellant’s conduct in abusing alcohol and reckless driving indicates that he is a danger to society; prior probationary efforts had failed to rehabilitate appellant; and a lesser sentence would be inappropriate and depreciate the seriousness of the offense). The sentencing court likewise did not erroneously utilize the DUI conviction arising out of the August, 1991 accident to classify appellant as a second DUI offender with respect to the DUI conviction resulting from the May, 1992 accident. See Pennsylvania Commission on Sentencing Guideline Sentence Form, dated 10/28/92; Trial Court Opinion, filed 1/21/93, at 4 (indicating that appellant was a second offender for purposes of application of the DUI penalties because appellant had a prior DUI-related ARD disposition which occurred within seven years of the May conviction, i.e., in December, 1985); 75 Pa.C.S.A. § 3731(e)(1)(h) (imposing a mandatory minimum sentence of 30 days if the defendant has previously accepted ARD based on an offense under this section within the previous seven years) and § 3731(e)(2) (providing that acceptance of ARD for a charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction shall be considered a second, third, fourth or subsequent conviction). Finally, the sentencing court did not abuse its discretion by imposing a manifestly excessive sentence with respect to the May, 1992 DUI conviction. See Order of Sentence, dated 10/27/92 at 2-3. See Transcript of Court’s Statement at Conclusion of Sentencing, 10/27/92, at 3-4 and Trial Court Opinion, filed. 1/21/93 at 5 (explaining that maximum sentence was imposed because of appellant’s prior DUI-related convictions and egregious conduct in continuing to abuse alcohol and drive recklessly despite the prior accident in which appellant was severely injured and his friend was killed). Appellant’s sentencing claims thus do not warrant the grant of any relief.

      . Appellee has likewise failed to provide us with a discussion of or citations to any pertinent authority. Rather, appellee concedes that the convictions merge.

      . Although the Supreme Court revisited the issue in Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375 (1992), the test enunciated by Justice McDermott was joined only by Justice Larsen. Justice Flaherty, who authored Weakland and Williams, commanded a majority of the votes as his concurrence was joined by Chief Justice Nix and Justice Cappy. Id., 526 Pa. at 347, 350, 586 A.2d at 378-379. Justices Zappala and Papadakos concurred in the result. Id. Burkhardt thus is a plurality decision which has no precedential effect. Commonwealth v. Anderson, 416 Pa.Super. 203, 217-218 n. 8, 610 A.2d 1042, 1048 n. 8 (1992) (en banc); Commonwealth v. Brown, 415 Pa.Super. 534, 540-541, 609 A.2d 1352, 1356 (1992).

      . Because the sentence for the August DUI conviction was directed to run concurrently with the sentence imposed for the involuntary manslaughter conviction, appellant's aggregate term of imprisonment remains unaffected by our disposition.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    631 A.2d 1335
    COMMONWEALTH of Pennsylvania, Appellant, v. Dwight JOHNSON, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1993.
    Filed Sept. 30, 1993.

      Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com., appellant.
    Dennis Woody, Media, for appellee.
    Before CIRILLO, BECK and KELLY, JJ.
   KELLY, Judge:

In this opinion we are called upon to determine whether a police officer’s tactile impression of contraband during a valid Terry stop was sufficient to constitute probable cause to arrest. We hold that it was, and under the standard recently announced by the United States Supreme Court in Minnesota v. Dickerson, — U.S.-, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (No. 91-2019, slip opinion filed June 7, 1993), we reverse.

The facts and procedural history of this case may be summarized as follows. In order to execute a warrant for the arrest of Derrick Griffin, Chester Police officers awaited Griffin’s arrival at a Howard Johnson’s restaurant where, the police were informed, Griffin was scheduled to participate in a drug transaction. One police officer, who had known Griffin by sight, observed in an undercover capacity. Meanwhile, other officers conducted surveillance of the area, awaiting Griffin’s arrival.

Griffin arrived, as a passenger in a car driven by Dwight Johnson, appellee, who backed his car into a spot in the parking lot. Appellee turned the lights off and remained in the car as Griffin exited and walked toward the Howard Johnson’s entrance. Police officers apprehended Griffin and the undercover police officer to maintain that officer’s undercover status. No controlled substances were found on Griffin’s person. Observing appellee in the car, one of the officers, Officer Sendek, approached appellee, ordering him not to move. Officer Sendek then frisked appellee. Officer Sendek later explained:

Q. Conduct a pat down of him?
A. I crunched his clothes.
Q. Okay. What did you discover upon crunching his clothes as you say?
A. In — I did a squeeze of his entire body and then when I went into — in his crotch area, I — crotch area I could — I though I felt a controlled substance there.
Q. What makes you think that? What was it you felt in particular that led you to believe it was a controlled substance?
A. When I went under — in his testicle area, I felt something crunchy.
Q. So, you felt the area between his testicles and his anus then.
A. Yes, sir.
Q. And what was in that — what was the feel of that area? What did you — -what did you note?
A. Well, as many crotches I felt, it was something that normally isn’t there.
Q. All right. What was it? Was it — -was there a substance there then?
A. I felt it was a controlled substance.
THE COURT:
That was beautifully phrased.
BY MR. LAURIE:
Q. But there was noticeably something that you know is not there ...
A. Not supposed to be there, yes.
Q. Physiologically, is that correct?
A Yes.
Q. All right. And the substance that you’re describing, can you tell us what it felt like? Was it a hard substance, soft? Did it have a consistency to it? What was it?
A. Something — something granular.
Q. All right. Have you felt such a substance prior to this occasion?
A Quite a few occasions, yes, sir.
Q. Can you estimate how many times you — -you’ve handled chunky, granular substances that turned out to the [sic] controlled substances?
A. I’d say at least 50 times, sir, in the past four years.
Q. And at that time — after feeling this substance, did you confront this to the Defendant Johnson? Say anything to him at that time?
A. I honestly don’t remember what I said to him, sir.
Q. What did you do then?
A. I told Sgt. Butler, Wendell Butler, “I think he’s got something in his crotch.”
# * sj: #
Q. Okay. Have you conducted these types of pat down searches and I think you did crotch searches in the past?
A. Yes, we have, sir.
Q. Have you had occasion, on these — on these other searches to, in fact, touch — occasion to touch testicles in the process of conducting such a search?
A. I — I feel — I feel a lot of guys’ crotches, yes.
Q. Okay. Did this feel like a testicle?
A. No. It didn’t. No, no — the ...
Q. Very good.
A. The cocaine did not feel like anyone’s testicle.

N.T. November 21, 1991 at 14-16; 18-19.

After feeling the crunchy, granular substance in appellee’s crotch, Officer Sendek concluded that appellee possessed illegal narcotics. Appellee was then taken to the police station where he was asked to remove his clothing. The search at the police station revealed a package of cocaine in appellee’s crotch.

Appellee was arrested and charged with possession and possession with intent to deliver a controlled substance. Appellee moved to suppress the cocaine found in his crotch. The Court of Common Pleas conducted a hearing and ordered the evidence suppressed. The Commonwealth timely appealed.

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

WHETHER THE POLICE HAD PROBABLE CAUSE TO ARREST THE DEFENDANT WHERE, DURING A PAT-DOWN FRISK OF THE DEFENDANT, THE POLICE OFFICER FELT AN OBJECT WHICH HE KNEW COULD NOT BE PART OF THE DEFENDANT’S BODY AND WHICH THE OFFICER BELIEVED WAS COCAINE, THE OFFICER HAVING FELT SUCH AN OBJECT NUMEROUS TIMES BEFORE?

Commonwealth’s Brief at 4.

When reviewing the Commonwealth’s appeal from an adverse decision of the suppression court, we must consider “only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.” Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990). When the evidence supports the trial court’s findings of fact, we may reverse only when the legal conclusions drawn from these facts are erroneous. Id. It is the sole province of the suppression court, as finder of fact, to weigh the credibility of the witnesses. Id. Thus, the fact finder is free to believe all, part or none of a witnesses’ testimony.

Commonwealth v. Quiles, 422 Pa.Super. 153, 154, 619 A.2d 291, 292 (1993) (en banc).

Recently, the United States Supreme Court addressed itself to the precise issue before this Court today. In Minnesota v. Dickerson, supra, the Supreme Court was asked to consider whether and to what extent an officer’s tactile impressions may be used to justify the search of an individual whom the officer has detained pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Thus, the Court explained:

The Fourth Amendment, made applicable to the State by way of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643[, 81 S.Ct. 1684, 6 L.Ed.2d 1081] (1961), guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Time and again, this Court has observed that searches and seizures “ ‘conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.’ ” Thompson v. Louisiana, 469 U.S. 17, 19-20[, 105 S.Ct. 409, 410, 83 L.Ed.2d 246] (1984) (per curiam) (quoting Katz v. United States, 389 U.S. 347, 357[, 88 S.Ct. 507, 514, 19 L.Ed.2d 576] (1967) (footnotes omitted)); Mincey v. Arizona, 437 U.S. 385, 390[, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290] (1978); see also United States v. Place, 462 U.S. 696, 701[, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110] (1983). One such exception was recognized in Terry v. Ohio, 392 U.S. 1[, 88 S.Ct. 1868, 20 L.Ed.2d 889] (1968), which held that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot” the officer may briefly stop the suspicious person and make “reasonable inquiries” aimed at confirming or dispelling his suspicions. Id., at 30[, 88 S.Ct. at 1884]; see also Adams v. Williams, 407 U.S. 143, 145 — 146[, 92 S.Ct. 1921, 1922-23, 32 L.Ed.2d 612] (1972). Terry further held 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,” the officer may conduct a patdown search “to determine whether the person is in fact carrying a weapon.” 392 U.S. at 24[, 88 S.Ct. at 1881]. “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence____” Adams, supra, [407 U.S.] at 146[, 92 S.Ct. at 1923]. Rather, a protective search — permitted without a warrant and on the basis of reasonable suspicion less than probable cause — must be strictly “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Terry, supra, [392 U.S.] at 26[, 88 S.Ct. at 1882]; see also Michigan v. Long, 463 U.S. 1032, 1049, and 1052, n. 16[, 103 S.Ct. 3469, 3480, and 3482, n. 16] (1983); Ybarra v. Illinois, 444 U.S. 85, 93-94[, 100 S.Ct. 338, 343, 62 L.Ed.2d 238] (1979). If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed. Sibron v. New York, 392 U.S. 40, 65-66[, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917] (1968).
i'fi * H< ❖ #
We have already held that police officers, at least under certain circumstances, may seize contraband detected during the lawful execution of a Terry search.... The Court in [Michigan v. Long, 463 U.S. 1032[, 103 S.Ct. 3469] (1983) ] justified this ... holding by reference to our eases under the “plain-view” doctrine. See Long, supra, at 1050[, 103 S.Ct. at 3481]; see also United States v. Hensley, 469 U.S. 221, 235[, 105 S.Ct. 675, 683, 83 L.Ed.2d 604] (1985) (upholding plain-view seizure in context of Terry stop). Under that doctrine, if police are lawfully in a position from which they view and object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. See Horton v. California, 496 U.S. 128, 136 — 137[, 110 S.Ct. 2301, 2307-08, 110 L.Ed.2d 112] (1990); Texas v. Brown, 460 U.S. 730, 739[, 103 S.Ct. 1535, 1541, 75 L.Ed.2d 502] (1983) (plurality opinion). If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object — i.e., if “its incriminating character [is not] ‘immediately apparent,’ ” Horton, supra, [496 U.S.] at 136[, 110 S.Ct. at 2307] — the plain-view doctrine cannot justify its seizure. Arizona v. Hicks, 480 U.S. 321[, 107 S.Ct. 1149, 94 L.Ed.2d 347] (1987).
We think that this doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. The rationale of the plain view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no “search” within the meaning of the Fourth Amendment — or at least no search independent of the initial intrusion that gave the officers their vantage point. See Illinois v. Andreas, 463 U.S. 765, 771[, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003] (1983); Texas v. Brown, supra, [460 U.S.] at 740[, 103 S.Ct. at 1542]. The warrantless seizure of contraband that presents itself in this manner is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment. See Hicks, supra, [480 U.S.] at 326-327[, 107 S.Ct. at .1153]; Coolidge v. New Hampshire, 403 U.S. 443, 467-468, 469-470[, 91 S.Ct. 2022, 2038-39, 2040, 29 L.Ed.2d 564] (1971) (opinion of Stewart, J.). The same can be said of tactile discoveries of contraband. If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.

In the present case, the trial court found that the officer was justified in his decision to stop and frisk appellee, but unjustified in continuing to search appellee’s person thereafter. Under the Supreme Court’s recent pronouncement in Minnesota v. Dickerson, we cannot agree.

Here, as the trial court found, there existed more than ample cause to reasonably suspect that appellant was engaged in drug dealing at the time the officer encountered him. As such, we may take judicial notice of the reasonable suspicion that appellee was armed and dangerous. See Commonwealth v. Patterson, 405 Pa.Super. 17, 22, 591 A.2d 1075, 1078 (1991) (taking judicial notice that drug dealers are likely to be armed and dangerous). Accordingly, the trial court properly held that the officer was justified in detaining appellee and conducting a minimally intrusive pat down of his person. See Terry v. Ohio, supra.

The trial court erred, however, in determining that the officer herein could do no more to appellee upon gleaning more information through the pat-down. As the Minnesota v. Dickerson Court has explained, the tactile impression perceived by an officer justifiably engaged in the pat-down of a suspect is an element to be considered in determining whether the officer had sufficient cause to thereafter engage in a search more intrusive than that permissible under Terry v. Ohio, supra Where it is “immediately apparent” from the tactile impression that the suspect possesses contraband on his person, a seizure of the contraband is justified. Minnesota v. Dickerson, supra. Here, the officer articulated in detail regarding the specific nature of his perception. See N.T. November 21,1991 at 14-16; 18-19. The record is, therefore, sufficient to establish that the officer’s tactile impression combined with his years of experience, led him to reasonably conclude that what he felt was a controlled substance. The perceived consistency and location of the package together with the surrounding circumstances combined sufficiently to betray the illegal nature of the object on appellee’s person. Compare Commonwealth v. Marconi, supra (rock or pebble like object in pocket not sufficiently identifiable through tactile impression).. There was no need to manipulate the object, or alter in any way the justified pat-down, in order to identify the contraband. Rather, the identity of the cocaine became “immediately apparent” through only a minimally intrusive and constitutionally permissible pat-down. Compare Minnesota v. Dickerson, supra (officer forced to manipulate item through clothing in order to identify it). Accordingly, the seizure violated none of the appellee’s rights under the Fourth Amendment.

Under the holding in Minnesota v. Dickerson, supra, the officer herein need not have ignored what he had probable cause to believe was true. Through a constitutionally condoned frisk of appellee’s person, the officer learned that appellee possessed illegal drugs. The officer was, therefore, both justified and duty-bound to seize such contraband. It was error for the trial court to suppress such evidence. Accordingly, we reverse.

Suppression order reversed. Case remanded for proceedings consistent with this opinion.

      . We note that this appeal is properly before us, as the Commonwealth has certified in its Statement of Jurisdiction that the order in question will substantially handicap or terminate the prosecution in this matter. See Commonwealth v. Frankenfield, 410 Pa.Super. 377, 599 A.2d 1346 (1991) (although Commonwealth failed to initially certify that suppression order would substantially handicap its prosecution, this Court allowed repair of the procedural default).

       "The police officer in each [case would have] had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification ... and permits the warrantless seizure.” Coolidge v. New Hampshire, 403 U.S. 443, 466[, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564] (1971) (opinion of Stewart, J.).

        Minnesota v. Dickerson, — U.S. at-, 113 S.Ct. at 2135-37. This holding is, of course, controlling in our inquiry.*

      . Neither the parties nor the trial court in the instant case in any way suggest that there is any distinction between the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution which is relevant herein. Compare Commonwealth v. Carroll, 427 Pa.Super. 1, 628 A.2d 398 (1993) (en banc) (parties briefed and argued relevant distinction between Constitutions) with Common

        -wealth v. Peterfield, 415 Pa.Super. 313, 609 A.2d 540, appeal denied, 533 Pa. 609, 618 A.2d 400 (1992) (parties failed to brief and argue relevant distinction between Constitutions). The trial court, in fact, relied solely upon its interpretation of the Fourth Amendment case law in rendering its decision. See also Commonwealth v. Harper, 416 Pa.Super. 608, 611 A.2d 1211 (1992) (failing to address any distinction between the federal and state constitution where issue is one based solely upon federal constitution); Commonwealth v. Marconi, 408 Pa.Super. 601, 597 A.2d 616 (1991), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992) (same). Accordingly, as we are not called upon to address whether any relevant distinction exists herein, we express no opinion in this regard. See Commonwealth v. Peterfield, supra; Commonwealth v. Marconi, supra 408 Pa.Super. at 628 n. 8, 597 A.2d at 630 n. 8 (Kelly, J., concurring); see also Commonwealth v. Carroll, supra (concurring opinion by Cavanaugh, J. in which Tamilia, J. and Hudock, J. joined).

      . See also Commonwealth v. Marconi, supra 408 Pa.Super. at 619, 597 A.2d at 624-631 (Kelly, J., concurring).

      . " ‘A virtuoso may draw reasonable inferences and suspicion of criminal involvement that would elude an amateur.' " Commonwealth v. Marconi, supra at 627 n. 6, 597 A.2d at 629 n. 6 (quoting United States v. Ceballos, 719 F.Supp. 119, 124 (E.D.N.Y.1989).


author: BECK, Judge:

text:
    631 A.2d 1341
    COMMONWEALTH of Pennsylvania, v. Steven Omar HINDI, Appellant.
    Superior Court of Pennsylvania.
    Argued April 14, 1993.
    Filed Sept. 29, 1993.

      Guy H. Brooks, Harrisburg, for appellant.
    Jacqueline L. Russell, Asst. Dist. Atty., Pottsville, for Com., appellee.
    Before CAVANAUGH, BECK and JOHNSON, JJ.
   BECK, Judge:

This appeal concerns the use and manner of use of videotape as evidence at trial. Appellant alleges, inter alia, that the trial court erred in precluding him from presenting to the jury a videotape in slow motion and/or “freeze frame.” We affirm the judgment of sentence.

Every year, on Labor Day, a live pigeon shoot is held at a local park in Hegins, Pennsylvania. The annual event draws hundreds of people; some come to participate in the shoot, some come to watch the activity and others come solely to protest the shoot. This last group is made up of animal rights activists and other persons concerned about the live birds that are destroyed each year. As can be expected, there are often angry and hostile exchanges between the groups; police supervision is necessary to maintain order and discourage violence. Apparently, during the 1990 shoot, the presence of police was not enough to deter people from moving beyond lawful conduct. As a result of the events that took place on that date, appellant was convicted of criminal mischief and disorderly conduct. He was sentenced to a one year term of probation and a $1,000.00 fine. This appeal followed.

The record reveals that as people were filing out of the park, a number of protestors and spectators began to badger and, ultimately, confront one another. According to the Commonwealth, appellant jumped on the hood of a car driven by a spectator. The driver continued to drive at a slow speed and then came to stop, whereupon appellant kicked in the windshield of the vehicle, jumped off the car and urged the occupants of the car to engage in a fight. The driver charged appellant, tackled him, and the two fought and wrestled until stopped by police.

Appellant’s version of the events, as testified to by appellant himself and other defense witnesses, differed significantly. He claimed that he witnessed protestors being bumped and/or hit by cars as they were leaving the park. In an effort to stop this activity, he stepped directly in front of a vehicle and was hit on his left knee. He then was propelled onto the hood of the vehicle and the driver proceeded to pick up speed. Fearing serious bodily injury and in an act of self-defense, appellant kicked in the windshield of the car and the driver came to a stop. Appellant claims that he was then attacked by the driver and “other pro-shoot supporters.”

.Both parties, offered videotapes of the event. Neither tape showed how appellant actually got on the hood of the car, a major point of contention between the parties. The Commonwealth’s tape showed appellant on the hood of the car as it proceeded down the road and showed appellant in the act of kicking in the windshield. It also showed the confrontation between appellant and the driver after the car had stopped. Appellant’s tape was in two parts. The first, part showed appellant in front of the car urging the driver to hit him. The tape showed the vehicle making contact with appellant’s leg and then the tape stopped abruptly. Thereafter, the tape began again with appellant on the hood of the car as it proceeded down the road. The tape does not show the kicking in of the windshield or the fight afterward.

Appellant’s first allegation of error stems from the trial court’s evidentiary rulings with respect to the defense tape. Prior to admission of the tape, the judge ruled that appellant would not be permitted to slow down the portion of the tape that showed the car making contact with appellant’s knee. Further, the judge ruled that appellant was not permitted to stop the tape at that precise point, i.e., “freeze frame” the tape. The judge reasoned that appellant would present a distorted view of the incident to the jury if he was permitted to show one part in slow motion (the contact between the car and appellant’s leg) and another part at regular speed (the car driving off with appellant on the hood). Further, the court noted that appellant could utilize the enlarged still photographs he had made from the videotape, which depicted the contact fairly and accurately. Those photographs were admitted into evidence and appellant was permitted to play his tape to the jury at the regular speed.

Appellant insists that it was an error of law or, at least, an abuse of discretion to preclude him from showing the videotape in the manner he wished to present it.

There is little instruction from our courts, or those of other states, on the admissibility/propriety of slowing down or freezing videotaped evidence. There is no codified rule in this Commonwealth on the issue nor does there exist a uniform standard formulated by common law. While there are a few cases from other jurisdictions that address the issue, we have found no in-depth analysis on the topic. See e.g., Brown v. State, 201 Ga.App. 510, 411 S.E.2d 366 (1991) (jury permitted to view previously admitted videotape of crime at slow speed during its deliberations); Scott v. State, 390 N.W.2d 889 (Minn.App.1986) (videotape of assault played in slow motion and reverse admissible because properly authenticated).

Because we cannot rely on case law to determine the validity of appellant’s claim, we are guided instead by the general rules of evidence and the particular concerns brought about by the ever-increasing use of technology in the courtroom. We must consider both the danger of distortion and manipulation of evidence and the value of presenting to the fact finder visual proof of an occurrence. Into the mix goes our desire to allow parties to try their cases in the best manner they have devised and our insistence that all cases be tried fairly and without undue prejudice.

Our standard of review is clear:
[A] basic requisite for the admissibility of any evidence in a criminal case is that it be competent and relevant. Evidence is relevant when it tends to establish facts in issue or in some degree advances the inquiry and thus has probative value. Not all relevant evidence is admissible, however, and the trial court may exercise its discretion to exclude evidence that, though relevant, may confuse, mislead, or prejudice the jury. Since rulings on the relevancy of evidence rest within the sound discretion of the trial court, they will not be reversed absent a manifest abuse of discretion.

Commonwealth v. Stark, 363 Pa.Super. 356, 526 A.2d 383, 391-92 (1987), appeal denied, 517 Pa. 622, 538 A.2d 876 (1988) (citations omitted).

Appellant sets forth a number of reasons why it was imperative that the tape be shown in slow motion and in freeze frame. He claims that the specific manner in which the videotape was shown would have established that the prosecution witnesses were mistaken with respect to several events that occurred on the day of the shoot. He insists that the tape would have rebutted directly Commonwealth testimony, given by the driver and occupant of the car, that appellant approached the vehicle from the right side and that no words were exchanged between appellant and the driver. Further, a slowed or stopped version of the tape would have contradicted the prosecution witnesses’ testimony that appellant was never in front of the car and that appellant was never hit by the car. Finally, appellant claims that viewing the tape in slow motion would have been useful in establishing how far the car traveled with appellant on the hood and would have called into question Commonwealth testimony that appellant was wearing a white shirt when, in fact, he was wearing a blue shirt. Appellant avers that none of these “contradictions” properly could be demonstrated to the jury because of the court’s restrictive order.

It must be noted that appellant was permitted and, indeed several times took the opportunity, to play the tape for the jury at regular speed. We must decide whether precluding appellant from showing the tape at a slower speed or in a freeze frame prevented him from proving any of the above. We find that the majority of appellant’s claims are without merit because the points he sought to prove were proven by viewing the videotape at regular speed. Our review of the videotape leads us to the conclusion that, in almost every instance, it was unnecessary to allow appellant to show the tape in slow motion. The direction from which appellant approached the vehicle is clear from the tape when played at normal speed. So too is the fact that appellant spoke to the driver while he stood directly in front of the car. Similarly, there was no need to show the tape in slow motion/freeze frame in order for the jury to realize that appellant wore a blue shirt on the day of his arrest. Nor would a slow motion rendition of the tape been of any assistance in determining the exact distance the car drove while appellant was on the hood.

Whether appellant was hit by the car may or may not be completely clear from watching the tape at regular speed. Actual contact, of course, would be best seen when a video tape is slowed or ultimately stopped, at the precise moment contact occurs. Since the driver testified that his car did not hit appellant, appellant certainly would have wanted to prove otherwise. If such rebuttal evidence was available by presenting the tape in slow motion and/or freeze frame, it seems that appellant should have been permitted to offer it.

Absent any other evidence of the contact between .the car and appellant, we would find that the trial, court’s refusal to allow appellant to offer such proof constituted an abuse of discretion. Any concern that slow motion or freeze frame may have confused or prejudiced the jury easily could be cured by a cautionary instruction from the trial judge explaining the limited purpose of the slow motion/freeze frame. Further, concerns over distortion of the evidence could be countered by permitting the opposing party to comment freely on the use of slow motion and to show the tape at regular speed. The trial court underestimated the ability of the jurors to use their common sense; in this instance, we believe the jury was quite capable of understanding the effect of presenting the limited portion of the videotape in slow motion/freeze frame.

In determining whether to admit into evidence slow motion or freeze frame video, the standard to be applied by the trial court is the same as it is for the admission of other evidence. It must be relevant and material and its probative value must outweigh its prejudicial impact.

In a sense, all slow motion and freeze frame video distorts reality. It distorts it in the same way that magnification of a photograph distorts reality. Such distortion may enhance the jury’s understanding or it may do the opposite. It is the function of the trial court, as was done in this case, to view the evidence in camera. If the judge concludes that the jury’s understanding will be enhanced and that the slow motion or freeze frame is more probative than prejudicial, then the judge should admit the evidence. Of primary relevance is the purpose for which the party offers a slow motion or freeze frame version of a videotape.

In Channel 20, Inc. v. World Wide Towers Services, Inc., 607 F.Supp. 551 (S.D.Tex.1985), the trial court granted a new trial on the issue of damages for pain and suffering. In that case, the widows and children of five men sought compensatory damages for pain and suffering endured by the men who were killed while working atop a 1,900 foot broadcast tower that collapsed. The manufacturer of the tower maintained that the men were not conscious during their fall and, therefore, their estates should not be awarded damages for pain and suffering. The plaintiffs offered a videotape of the event, which was played in slow motion while a witness narrated the details of the disaster. The slow motion version of the videotape showed that the men were conscious for at least a part of the nearly 2,000 foot fall to their deaths. Another tape offered by the plaintiffs was not admitted into evidence; in it the audio was amplified so that the screams of the workers could be heard.

The trial court found that the slow motion version of the tape directly rebutted the opposing party’s claim that the workers were not conscious during the fall. We note that the amplified audio version of the tape was potentially prejudicial because it may have distorted and embellished the facts as they occurred. While the Channel 20, Inc. opinion does not state why the amplified audio version of the tape was not admitted, we would find that it was properly rejected in light of the fact that the plaintiffs were able adequately to rebut defense testimony regarding the consciousness of the workers with the slow motion version of the tape.

Here there was an issue of fact as to whether appellant was struck by the car. Appellant, through use of slow motion and freeze frame video, had relevant and competent proof that contact indeed had been made. In this instance then, it may have been an abuse of discretion to preclude appellant from presenting that evidence to the jury. Our inquiry does not end here however. If appellant had been prevented from showing the freeze frame and/or slow motion of his contact with the car, and had not been permitted to offer any other proof of such contact, an abuse of discretion by the trial court would have resulted in reversible error. However, the trial court admitted into evidence the enlarged still photographs, taken from the videotape, which reflected the precise moment of contact between the car and appellant’s knee. Appellant then, was able to rebut the testimony of the Commonwealth witnesses by offering demonstrative evidence that the car struck him.

Because the jury was permitted to view this evidence, the failure of the trial court to admit the same evidence in a different manner, i.e., slow motion or freeze frame, was not error. We find that it was a proper exercise of the trial court’s discretion to prevent appellant from using slow' motion or freeze frame and to allow appellant to offer still photographs of the same videotape frames.

Appellant next alleges that the videotape offered by the prosecution was not properly authenticated and, therefore, was wrongfully admitted. We disagree. A witness for the Commonwealth, the driver of the car, viewed the tape and testified that it was an accurate and fair depiction of events as they occurred on the day of the shoot. Commonwealth v. Wiltrout, 311 Pa.Super. 115, 457 A.2d 520 (1983). Admission of the prosecution’s tape was proper.

Appellant’s final two claims of error are related. He asserts that the trial court erred in allowing the Commonwealth to show that portion of its videotape having to do with his summary charge of disorderly conduct, i.e., the footage reflecting appellant jumping off the hood of the car and taunting the driver as he assumed a karate position and kicked toward the driver and the other occupant. Appellant further claims that the trial court’s immediate ruling of guilt with respect to the summary charge after the jury’s verdict caught him unaware and deprived him of presenting a defense on that charge. Appellant insists that he should have been afforded separate trials on each charge.

We agree with the trial court that double jeopardy concerns would arise if the state attempted to hold two separate trials for the offenses that arose out of this single, less than two minute, criminal episode. See 18 Pa.C.S.A. § 110; Commonwealth v. Flenory, 351 Pa.Super. 27, 504 A.2d 1341, 1342 (1986) (whether incidents are part of a single criminal episode and, therefore, should be tried together, depends on the temporal sequence of events, the logical relationship between the acts and whether the acts share common issues of law and fact). In Commonwealth v. Campana, 452 Pa. 233, 255, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44, on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), the Commonwealth sought to avoid a finding of double jeopardy and asserted that two separate crimes occurred and, therefore, two trials were appropriate. Our supreme court reasoned:

Appellants ... entered a Berks County bar and initiated a “brawl.” The event lasted, according to eyewitnesses, “a couple of minutes,” “two or three minutes.” After the incident, appellants immediately fled. The Commonwealth argues, notwithstanding this testimony, that there were actually two episodes. Relying on the testimony of one witness concerning minimal property damage outside the bar, the Commonwealth contends that there was one episode in the bar and one outside. We reject that metaphysical division, because the record discloses that any damage outside the bar was done during appellants’ quick flight from the brawl. Because the record establishes but a single criminal episode it is clear that all charges brought against appellant should have been consolidated in a single proceeding.

Id. at 255, 304 A.2d at 442-43 (emphasis in original).

We believe appellant is attempting to make the same argument here that the Commonwealth made, unsuccessfully, in Campana. Under the test in Flenory, there was but a single criminal episode in the instant matter. Further, the record reveals that upon the trial court’s ruling of guilt on the summary offense, appellant made no objection and did not articulate his alleged surprise at the judge’s action. It is clear that throughout the trial, appellant was aware that he was being tried for both charges as is reflected by his direct and cross examinations of witnesses. Appellant’s counsel questioned the Commonwealth witnesses about what occurred after the car was stopped and and also questioned appellant about those same events. We therefore reject appellant’s claim of surprise as well as his claim that he had no opportunity to defend on the disorderly conduct charge.

With respect to the evidence offered by the Commonwealth, we believe it was admissible and properly before the jury for a number of reasons. First, it was part of the entire criminal episode. Campana, supra. It not only showed appellant taunting the driver of the car, it also showed the driver pursuing appellant, tackling him and assaulting him. Second, it was relevant to rebut appellant’s claims that he was in fear for his life and only kicked in the windshield in an effort to stop the car. Appellant’s actions of jumping off the car and promptly attempting to engage the driver and other occupant in a physical fight belie appellant’s claim that he perceived danger and only acted in self-defense. See Stark, 526 A.2d at 391 (videotape of defendant shortly after crime relevant to refute defendant’s claim that he was too intoxicated to form intent to kill).

Appellant’s claims of error fail and the judgment of sentence is affirmed.

CAVANAUGH, J., concurs in the result.

      . Appellant was convicted by a jury of criminal mischief. Immediately after the jury’s verdict, the judge found appellant guilty of the summary offense of disorderly conduct.

      . The person who made the videotape testified that the reason the tape ended abruptly at that point was because she was in danger of being hit by the car herself and must have turned the recorder off when another protestor pulled her out of the way.

      . Notwithstanding the judge's order that the videotape not be run in slow motion or stopped/frozen at any point, appellant’s counsel did stop the tape during the testimony of the videographer and the district attorney objected on the basis of the judge’s previous order. Thereafter, appellant's counsel used the still photographs to illustrate his points.

      . For a general discussion of the use of videotaped evidence in criminal trials in various states and in the federal system, see Gregory P. Joseph, Modem Visual Evidence, §§ 5.01-5.05 (1993). Unfortunately, the specific concerns of presenting the evidence in slow motion or freeze frame are not addressed therein.

      . Obviously, a freeze frame of the tape would not have served this purpose either. Further, it does not appear that appellant ever intended to show the path of the vehicle in slow motion. At trial, he requested that he be allowed to slow down and/or freeze the tape only at the point of contact between the car and appellant. The judge ruled that he would not permit appellant to show one portion of the tape at a slow speed while showing the driving of the car at regular speed.


author: CERCONE, Judge.

text:
    631 A.2d 1347
    COMMONWEALTH of Pennsylvania v. G. Scott DIETTERICK, III, Appellant.
    Superior Court of Pennsylvania.
    Argued June 24, 1993.
    Filed Oct. 14, 1993.

      Stephen K. Urbanski, Kingston, for appellant.
    Scott Gartley, Asst. Dist. Atty., Wilkes-Barre, for Com., appellee.
    Before CAVANAUGH, HUDOCK and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from the judgment of sentence entered by the trial court on July 17, 1992. For the reasons set forth below, we affirm.

Appellant was arrested and charged with thirteen counts of tampering with public records or information, five counts of unsworn falsification to authority, and one count of forgery. The trial court concisely summarized the history of this case as follows:

In October 1990, a jury found the defendant guilty of each and every charge filed against him, which totaled 19 in all.
The prosecution charged that from 1984-1987 the defendant fraudulently presented bogus certificates of insurance to several school districts. The school districts involved were Nanticoke Area School District, Wyoming Valley West School District and Wilkes-Barre Area School District. The essence of the charges was that the defendant falsely represented to the school districts that they were covered by One Million Dollars ($1,000,000.00) worth of liability insurance when in fact they were grossly underinsured. The following chart displays the various representations of the defendant:
1984-85 1985-86 1986-87
At School Nanticoke Nanticoke Nanticoke
District $1,000,000.00 $1,000,000.00 Wilkes-Barre,,
Wyoming Valley West
$1,000,000.00
At Insurance
Company $500,000.00 0 $350,000.00
In addition, the defendant told the Auditor General’s Office that he had no idea where one certificate bearing the signature of Mary Sumption came from. The FBI determined that, in fact, the defendant had forged Mary Sumption’s name.
In addition to the above, the defendant was charged with forgery in Count 1 of Criminal Action 3161 of 1989 for issuing a certificate of insurance with the forged name of Mary Sumption.

Trial Court Opinion dated 5/29/92 at 1-2. After a jury trial, appellant was convicted on all counts. Appellant timely filed post-verdict motions which the trial court denied. This appeal followed.

Appellant raises the following issues for our review:
[I.] Was the arrest and all subsequent proceedings illegal and in violation of [appellant’s] rights due to the fact that the affiants, arresting officers, and prosecutors were Luzerne County Detectives?
[II.] Did the trial court err in failing to dismiss the charges against [appellant or in not granting] a mistrial in the case due to prosecutorial misconduct involving a subpoenaed defense witness, Harvey Nielsen?
[III.] Did the trial court err in failing to grant a mistrial due to the irrelevant and prejudicial testimony of Vincent Lapinski and his mother, Darlene Mitchell relating to a bus accident and Vincent Lapinski’s injuries?
[IV.] Did the trial court err in allowing Vincent Lapinski, Darlene Mitchell, Donald Bailey (the former Auditor General) and Richard Angstadt to testify as Commonwealth’s witnesses where their identity was not disclosed to the defense during informal discovery nor to the prospective jurors during voir dire?
[V.] Did the trial court err in failing to sustain [appellant’s] demurrer?
[VI.] Did the trial court err in failing to properly instruct the jury on the law and in failing to properly instruct the jury on the numerous points for charge as requested by [appellant]?
[VII.] Were the verdicts contrary to the law and against the weight of the evidence?

We have reviewed the parties’ briefs and certified record and find that the trial court’s resolution of Issues II, III, V and VII is correct. We therefore, affirm on the basis of the trial court opinion filed June 2, 1992 with regard to these issues. We will address appellant’s remaining issues in the order raised above.

In his first issue, appellant argues that his arrest and prosecution were illegal “due to the fact that the affiants in the Criminal Complaints, the arresting officers and the Prosecutors in the Informations are Luzerne County Detectives.” Appellant’s Brief at 9. In this regard, appellant contends that by statute, county detectives have no right to arrest and prosecute. Appellant maintains that 16 P.S. § 1440(d) restricts the powers of county detectives to the same powers vested in constables. After reviewing the plain language of section 1440(d) as well as our holding in Commonwealth v. Frombach, 420 Pa.Super. 498, 617 A.2d 15 (1992), we disagree.

“It is well settled that ‘[w]hen vesting a group with police powers and duties, the Legislature does so with specificity.’ ” Id. at 505, 617 A.2d at 19 (quoting Allegheny County Deputy Sheriff’s Assoc. v. Pennsylvania Labor Relations Board, 95 Pa.Cmwlth. 132,135, 504 A.2d 437, 439 (1986); in turn quoting Commonwealth v. Pennsylvania Labor Relations Board, 64 Pa.Cmwlth. 525, 532, 441 A.2d 470, 475 (1982), affirmed in part and reversed in part, 502 Pa. 7, 463 A.2d 409 (1983)). Section 1440 of title 16 provides that county detectives:

shall be general police officers and shall have the powers conferred on Constables by the laws of this Commonwealth, so far as they relate to criminal law and procedure.

16 P.S. § 1440(d) (emphasis added). The rules of statutory construction mandate that where the words of a statute are clear and unambiguous, the letter of the statute is not to be disregarded in order to pursue its spirit. 1 Pa.C.S.A. § 1921. Moreover, every statute is to be construed, if possible, so as to give effect to all its provisions. Id. § 1921(a).

Under the plain language of the statute, county detectives are specifically granted the powers of both general police officers and constables. To interpret this statute as granting county detectives only those powers conferred upon constables would totally negate the preceding phrase which grants county detectives “general police powers.” Clearly, this interpretation would not give effect to all provisions of 16 P.S. § 1440(d) and would constitute .a strained interpretation of the plain language of the statute. This interpretation is supported by our decision in Commonwealth v. Frombach, supra.

In Frombach, this court was asked to determine whether county detectives had the authority to enforce the Vehicle Code. In addressing this issue, we stated:

After careful review of the relevant legislative provisions and applicable case law, it appears that the legislature has expressed a clear intent to classify county detectives as police officers who possess general police power to enforce the laws of this Commonwealth.

Commonwealth v. Frombach, 420 Pa.Super. at 506, 617 A.2d at 20. Guided by our reasoning in Frombach, we find that county detectives possess general police power to enforce the laws of the Commonwealth, and are not limited to only those powers conferred upon constables. Accordingly, we find that the county detectives in this case had the authority, pursuant to the warrants issued by a magistrate, to arrest and prosecute appellant.

Next, appellant argues that the trial court improperly permitted Vincent Lapinski, Darlene Mitchell, Donald Bailey (the former Auditor General) and Richard Angstadt to testify as Commonwealth’s witnesses where their identity was not disclosed to the defense during informal discovery nor to the prospective jurors during voir dire. It is well-settled that the admissibility of evidence is a matter left to the sound discretion of the trial court, and an appellate court may reverse only upon a showing that the trial court abused its discretion. Commonwealth v. Wallace, 522 Pa. 297, 309 n. 15, 561 A.2d 719, 725 n. 15 (1989). Evidence is admissible if, and only if, it is relevant: the evidence must logically or reasonably tend to prove or disprove a material fact in issue, to make such a fact more or less probable, or afford a basis or support for a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Ingram, 404 Pa.Super. 560, 576, 591 A.2d 734, 742 (1991), allocatur denied, 530 Pa. 631, 606 A.2d 901 (1992). Accord Commonwealth v. Stewart, 461 Pa. 274, 336 A.2d 282 (1975). Here, appellant does not contend that the evidence was irrelevant. Instead, appellant argues that the trial court should not have admitted the testimony from these witnesses because the Commonwealth failed to identify them prior to trial. We disagree. The Rules of Criminal Procedure require only that the Commonwealth disclose the identity of eyewitnesses. Pa.R.Crim. P., Rule 305, 42 Pa.C.S.A. None of the witnesses listed by appellant was an eyewitness to the alleged criminal activity. The Commonwealth is under no obligation to disclose the names of all its witnesses to the defendant. Commonwealth v. Colson, 507 Pa. 440, 463, 490 A.2d 811, 823 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986); Commonwealth v. Bey, 294 Pa.Super. 229, 237, 439 A.2d 1175, 1179 (1982). Because none of the witnesses named by appellant were eyewitnesses, even the discretionary provision was inapplicable. Accordingly, we find no error on the part of the trial court in denying appellant relief on this basis.

Finally, appellant argues that the trial court did not fully and adequately charge the jury. In .his brief, appellant contends that the trial court did not instruct the jury on his requested points for charge Nos. 19 through 34. However, appellant’s requested points of charge, while included in the Reproduced Record, are not part of the certified record on appeal. We are limited to considering only those facts which have been duly certified in the record on appeal. Commonwealth v. Osellanie, 408 Pa.Super. 472, 476, 597 A.2d 130, 131 (1991). For purposes of appellate review, what is not of record does not exist. Frank v. Frank, 402 Pa.Super. 458, 463 n. 5, 587 A.2d 340, 342-43 n. 5 (1991).

We note that appellant’s post-trial motions raise only a general allegation that the trial court:

erred in failing to inform the jury in the Court’s charge of the exact charges involved in the informations and in failing to explain the exact charges involved in the informations. The Court should have read the informations to the jury and should have explained the elements of the charges set forth in the informations.

Appellant’s Post-trial Motions filed October 12, 1990. The trial court, in its opinion filed June 2, 1992, stated that the appellant’s requested points for charge referred to the standard instructions and that it covered these points. Trial Court Opinion at 7. However, the trial court opinion vaguely addressed appellant’s concerns regarding, its explanation of the elements of forgery. Accordingly, we will address appellant’s allegation of error in this regard.

In reviewing jury instructions for prejudicial and reversible error, the charge must be read and considered as a whole. Commonwealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508, 510 (1978). Accord Commonwealth v. Rivera, 409 Pa.Super. 120,127, 597 A.2d 690, 694 (1991). Error cannot be based upon isolated excerpts; it is the general effect of the charge that controls. Id. If we conclude that a charge is erroneous, we will grant a new trial unless the error is deemed harmless. Commonwealth v. Rivera, 409 Pa.Super. at 128, 597 A.2d at 694. An error is deemed harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless. Commonwealth v. Story, 476 Pa. 391, 405-06, 383 A.2d 155, 164 (1978). Moreover, a jury instruction will be upheld if it “adequately and accurately reflects the law and is sufficient to guide the jury through its deliberations.” Commonwealth v. Rivera, 409 Pa.Super. at 128, 597 A.2d at 694 (citing Commonwealth v. Early, 377 Pa.Super. 219, 227, 546 A.2d 1236, 1240 (1988)).

Appellant contends that the trial court inadequately instructed the jury on the elements of forgery by failing to advise the jury that the writing must be capable of “working an injury” to another. Appellant cites this court’s decisions in Commonwealth v. DiPiero, 205 Pa.Super. 312, 208 A.2d 912 (1965), cert. denied, 382 U.S. 992, 86 S.Ct. 574, 15 L.Ed.2d 479 (1965), and Commonwealth v. Bollinger 274 Pa.Super. 112, 418 A.2d 320 (1979) in support. However, we find that these cases summarized the law regarding forgery, as defined in 18 P.S. 5014 (repealed). The essential elements of the crime of forgery, as defined in 18 P.S. § 5014 (repealed), consist of: “(1) the false making of some instrument in writing, (2) the instrument must be apparently capable of effecting a fraud and working an injury to another, and (3) there must be a fraudulent intent.” Commonwealth v. DiPiero, 205 Pa.Super. at 317, 208 A.2d at 914. Here, however, appellant was arrested and charged with forgery under section 4101 of the Crimes Code.

Section 4101 of the Crimes Code, effective June 6, 1973, sets forth a broader definition of forgery:

A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:

(2) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize the act[.]

18 Pa.C.S.A. § 4101(a)(2). At trial, the trial court instructed the jury as follows:

Now, this one is the first count of criminal action No. 3161 of 1989, and this charges[:]
The District Attorney of Luzerne County charges that between June, 1985 and June of 1986, this defendant, in said County did, with the intent to defraud the Greater Nanticoke Area School District with knowledge that he was facilitating a fraud to be perpetrated, by anyone, did make, complete, execute, authenticate, issue or transfer a writing, to wit, a certificate of insurance for Harvey and Jacqueline Nielsen regarding a National Indemnity policy number BP180953 issued between June of 1985 and June of 1986, and did sign the forged signature of Mary Sumption to the said certificate of insurance so that it purported to be the act of Mary Sumption, who did not authorize the said act.
Now, members of the jury, that charges the crime of forgery.
I am now going to touch on each one of those various crimes.
# # * % *
Now, I have already discussed briefly with you the crime of forgery.
One, there must be a false writing;
Two, the instrument must be capable of defrauding; and,
Three, it was intended to defraud.

N.T. 9/24/90 through 10/5/90 at 12771, 1273 (emphasis added). We find that this instruction adequately summarizes the elements of forgery as set forth in 18 Pa.C.S.A. § 4101.

It is unclear whether appellant detailed his remaining allegations of error before the trial court. Although an issue may be contained in written post-trial motions, unless it is briefed or argued during post-trial proceedings, the issue is waived for purposes of appellate review. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). See also Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983) (where issues stated in post-trial motions are not briefed or argued in the lower court, issues are waived on appeal). Moreover, because appellant has not included his requested points for charge in the certified record, we are unable to determine whether appellant preserved these issues at trial, or whether the requested points for charge, if issued, would have cured the alleged error. We find, however, that the trial court adequately reviewed the elements of the offenses charged and that its charge as a whole, “adequately and accurately reflects the law and [was] sufficient to guide the jury through its deliberations.” Commonwealth v. Rivera, supra.

Judgment of sentence affirmed.


author: OLSZEWSKI, Judge:

text:
    631 A.2d 1353
    JOSEPH PAOLINO & SONS INC., Appellant, v. CITY OF PHILADELPHIA, Appellee.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1993.
    Filed Oct. 14, 1993.

      Bruce L. Phillips, Philadelphia, for appellant.
    Patrick K. O’Neill, Philadelphia, for appellee.
    Before OLSZEWSKI, JOHNSON and HUDOCK, JJ.
   OLSZEWSKI, Judge:

Joseph Paolino & Sons Inc., [“JPS”] appeals from the order entered October 19, 1992, in the Court of Common Pleas of Philadelphia County, granting summary judgment in favor of the City of Philadelphia [“the City”]. We affirm.

Central to this dispute is the parties’ waste disposal contract. JPS and the City entered into a contract in December of 1985 for the hauling and disposal of Philadelphia incinerator residue from December 1985 through June 1987. The relevant contract provisions are the following:

The Contractor shall assume all handling, transportation, disposal, permit and licensing costs. Hauling and disposal methods shall be in strict accordance with the regulations of the governing state and local environmental agencies. At time of bid, the Contractor shall provide evidence as to the approval of the appropriate regulatory agencies to dispose sanitary residue in the sanitary landfill listed in the bid.

R.R. at Exhibit A(l) (emphasis supplied). In addition, the Service Contract specified that

Contractor agrees to furnish ... subject to the conditions therein set forth ... All work performed and services rendered shall strictly conform to all laws, statutes and ordinances and the applicable rules, regulations, methods and procedures of all governmental boards, bureaus, offices, commissions and other agents.

R.R. at Exhibit A(4) (emphasis supplied).

In its bid, JPS submitted that its disposal site would be a Virginia landfill. JPS notified the City in January 1986, however, that a Virginia landfill different from the one specified in the bid would be used. Subsequently, that landfill was enjoined from accepting any further waste. Thus, JPS arranged for different landfills across the United States to accept the incinerator ash. The City made seven payments under the contract to JPS, between February 1986 and August 1986.

In June of 1986, JPS subcontracted with Amalgamated Shipping Corporation, a Bahamian company, for transport of incinerator ash from Philadelphia to the Bahamas for disposal. In August of 1986, the Bahamian ship “Khian Sea” was loaded with incinerator ash and departed Philadelphia for the Bahamas. The Bahamas refused to accept the waste. Thereafter, the Khian Sea sailed the seas from Central America to Yugoslavia to Sri Lanka in search of a disposal site for the incinerator ash. When the Khian Sea finally docked in Singapore in the fall of 1988, the ship’s holds were empty. JPS failed to produce any evidence that it satisfied its obligation to properly dispose of the incinerator ash hauled by the Khian Sea, contrary to the contract terms requiring disposal in accordance with “governing state and local environimental agencies” and “all governmental boards, bureaus, offices, commissions and other agents.” JPS and the City stipulated that the City made continuing inquiries regarding the disposal of the incinerator residue as soon as it discovered that the Khian Sea left the port of Philadelphia.

The City refused to pay JPS for their services because it did not properly dispose of the incinerator waste in compliance with applicable laws and regulations. The City contends that proper disposal was a condition precedent to its duty to pay for JPS’s services. JPS argues that the contract provisions governing the manner of waste disposal were mere promises of performance, the breach of which would only entitle the City to damages for harm actually suffered. JPS sued on the basis that the City’s failure to pay was a breach of their contract, because JPS fulfilled its duty to haul and dispose of waste.

A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P., Rule 1035, 42 Pa.C.S.A. On appellate review, an order granting a motion for summary judgment will not be reversed unless the court below has committed an error of law or clearly abused its discretion. Western Penn Power Co. v. Piatt, 405 Pa.Super. 467, 592 A.2d 1306 (1991).

The trial court found that there was no material issue of fact concerning the City’s duty to pay for the ash hauled by the Khian Sea, because JPS was unable to provide any evidence that it complied with the contract terms regarding environmentally safe disposal. On the other hand, the City presented evidence that the Khian Sea’s cargo was improperly jettisoned into the ocean, in violation of the parties’ contract and environmental regulations.

The City presented evidence that JPS sued Amalgamated Shipping for fraudulent misrepresentation and breach of contract in connection with the Khian Sea subcontract. Joseph Paolino & Sons, Inc. v. Amalgamated Shipping Corp., E.D.Pa. No. 87-1777, 1989 WL 79743 filed 7/17/89. Pending resolution of that suit, JPS admitted that it “obtained a preliminary injunction ... for the purpose of attempting to control the conduct of Amalgamated and its various agents and avoid the prospect of ocean dumping of the residue.” City- — JPS Stipulation number 58. In addition, the Khian Sea was purchased during its world incinerator ash tour from Lily Navigation by Romo Shipping Corporation, on or about September 8, 1988. The Khian Sea was renamed the “Felicia”. Romo Shipping informed Amalgamated Shipping that

cargo of ash of Felicia ex Khian Sea has been discharged. Owners will not advi[s]e location because world press and waste monopolies would probably have instigated usual false propaganda against ship and cargo creating frustration of discharge. For your information[,] owners negotiating sailing] vessel to far eastern interest and will have no further information of its operational status.

R.R. at Exhibit Y.

Moreover, counsel for JPS informed a City solicitor by letter that

it now must be assumed by [JPS] that ocean dumping of the residue is exactly what has occurred and more specifically that the incinerator residue was “discharged” into the Indian Ocean. According to several sources the vessel still had a cargo of incinerator residue on board when it departed Yugoslavia and then it transited the Suez canal. It was empty when it arrived in the jurisdiction of Singapore, and it had been denied entry to port in Sri Lanka.

R.R. at Exhibit N, dated 12/21/88.

The trial court found that the contract terms which provided for the manner of disposal were clear and unambiguous conditions precedent to the City’s duty to pay. No particular language is required to create a condition precedent. American Leasing v. Morrison Co., 308 Pa.Super. 318, 454 A.2d 555 (1982). Furthermore, the purpose of a condition is determined according to the general rules of contract interpretation. Estate of Barilla 369 Pa.Super. 213, 535 A.2d 125 (198.7). The trial court found the City’s interpretation, that payment was triggered by safe and legal disposal of the incinerator waste, to be reasonable and fair. The City’s concern with insulating itself from the extensive liability which would result from violating state, federal, and treaty regulations against ocean dumping is manifest. Furthermore, documentary evidence strongly suggested that the incinerator ash was improperly ejected into the ocean. JPS’s argument to the contrary is essentially that the incinerator ash will never be located, and therefore no actual damage for breach of a promise ever accrues. After a careful review of the record and the relevant law in this case, we find that the trial court’s rejection of JPS’ unreasonable interpretation was not an abuse of discretion. We affirm the trial court’s grant of summary judgment of JPS claim for payment for the Khian Sea cargo.

Order affirmed.

      . The United States is a signatory to the Convention on the Prevention of Marine Pollution by Dumping of Wastes ' and other Matter, also known as the London Dumping Convention, which restricts ocean dumping of incinerated materials. 26 U.S.T. 2403.

      . The City refused to pay $630,005 for the hauling and disposal of the Khian Sea’s cargo. The total value of the parties’ contract was $6 million of which the City paid $5.7 million for work properly executed.


author: WIEAND, Judge:

text:
    631 A.2d 1356
    COMMONWEALTH of Pennsylvania v. Robert WILSON, Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1993.
    Filed Oct. 15, 1993.

      Ann Russavage-Faust, Asst. Public Defender, Doylestown, for appellant.
    Stephen B. Harris, Asst. Dist. Atty., Warrington, for . Com., appellee.
    Before WIEAND, CIRILLO and CERCONE, JJ.
   WIEAND, Judge:

Robert Wilson waived his right to trial by jury, participated in a stipulated waiver trial before the Honorable Edward G. Biester, and was found guilty of possession of cocaine, possession with intent to deliver cocaine, and possession of drug paraphernalia. Post-trial motions were denied, and Wilson was sentenced to pay a fine of ten thousand ($10,000.00) dollars, together with the costs of prosecution, and undergo imprisonment for not less than three years nor more than six years. On direct appeal from the judgment of sentence, Wilson asks this Court to review the suppression court’s order upholding the validity of the warrant and search which produced contraband from Wilson’s person.

When considering an appeal from a motion to suppress, our review “is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are in error.” Commonwealth v. Merkt, 411 Pa.Super. 127, 129, 600 A.2d 1297, 1298 (1992). See also: Commonwealth v. Medley, 531 Pa. 279, 612 A.2d 430 (1992). Here, the parties are in substantial agreement regarding the pertinent facts, but appellant contends that the suppression court’s legal conclusions were incorrect.

In an affidavit for search warrant, Detective Paul Lindenmuth, of the Bristol Township Police, averred that a confidential informant, referred to as Larry, had informed him that crack cocaine was being sold by Maynard Wilson from a residence at E-25 Lloyd Street. Because the informant had known Maynard Wilson for several years, a controlled buy from him was arranged and completed within five days before issuance of the warrant. It was averred generally in the affidavit that controlled substances and drug paraphernalia could readily be passed from person to person and thus be concealed.. Therefore, a request was made for the warrant to authorize a search of “all persons present” on the premises at the time of executing the warrant. The warrant, however, did not contain such authorization.

Armed with a warrant to search E-25 Lloyd Street, owned or occupied by Maynard and Willie Mae Nelson, police went to the premises on March 18, 1992. One group of officers knocked on the door and then, hearing a commotion inside, forced the door open. As they did, they observed a black male run towards the rear of the building. This person, identified subsequently as the defendant, Robert Wilson, was intercepted by Officer Victor Tunis and another officer who had approached the residence from the rear. Robert Wilson was returned to the house, where a search of his outer clothing produced cash of $2,300.00, food stamps having a value of $529.00, a pocket knife, a pager and a motel key. Wilson was then taken to the bathroom, where a strip search produced a vial and packet suspected of containing cocaine. A subsequent laboratory analysis confirmed that the vial contained .06 grams of cocaine and that the packet contained 3.75 grams of cocaine.

The affidavit for the search warrant in this case named Maynard Wilson as the person who had been dealing drugs and Maynard and Willie Mae Wilson as the occupants of the residence at E-25 Lloyd Street. The affidavit contained no reference to Robert Wilson. The warrant authorized a search of the residence at E-25 Lloyd Street. It did not authorize a search of Robert Wilson, whose name did not anywhere appear in the affidavit or in the warrant.

The Commonwealth argues that the search of Robert Wilson was authorized because of language appearing in the affidavit which suggested generally that drugs and drug paraphernalia could be passed from person to person and which requested the issuance of a warrant to search “all persons present.” The Commonwealth’s argument, however, is lacking in merit. In the first place, the issuing authority neither authorized nor found probable cause for an “all persons present” warrant. This is clear from a reading of the warrant. The only reference to such a warrant appears in the affidavit; the warrant itself does not appear to have granted the request. Secondly and in any event, the affidavit failed to contain facts sufficient to support the issuance of a warrant to search all persons present.

Because Pennsylvania law requires that every search warrant “name with particularity the person or place to be searched,” Pa.R.Crim.P. 2005(c), “all persons present warrants” are not favored. See: Commonwealth v. Heidelberg, 369 Pa.Super. 398, 407, 535 A.2d 611, 615 (1987). Although there are situations when such warrants are necessary, they are only permissible when the affidavit of probable cause contains sufficient facts to justify a search of everyone found on the premises. Commonwealth v. Graciani, 381 Pa.Super. 626, 554 A.2d 560 (1989); Commonwealth v. Heidelberg, supra; State v. DeSimone, 60 N.J. 319, 288 A.2d 849 (1972). The facts relevant to reviewing an “all persons present” warrant were described in Commonwealth v. Graciani as follows:

[TJhough generally disfavored, an “all persons present” warrant would be deemed constitutional when the totality of the circumstances established a sufficient nexus between the persons to be searched, the location, and the criminal activity suspected. 369 Pa.Super. at 400-407, 535 A.2d at 612-615; id., 369 Pa.Super. at 407, 535 A.2d at 615-616 (Beck, J., concurring). In Heidelberg, we found a sufficient nexus to justify issuance of an “all persons present” warrant based upon the fact cocaine sales had been observed between the occupant and other persons at the house within twenty-four hours of the application for the warrant, a large quantity of cocaine was believed to be kept at the house, the place to be searched was a private residence, and the crime suspected involved contraband which could easily be hidden on the body. 369 Pa.Super. at 407, 535 A.2d at 615. We reasoned that the likelihood that anyone present at the time of the execution of the warrant might be involved in the cocaine distribution or be willing to hide evidence of the operation on their person was sufficient to justify issuance of an “all persons present” warrant.

Commonwealth v. Graciani, supra, 381 Pa.Super. at 630, 554 A.2d at 562.

The confidential informant upon whom the police relied in requesting a search warrant in this case had provided information about the activities of Maynard Wilson only. The name of Robert Wilson was never mentioned. He was not mentioned in the affidavit as a potential suspect, and a search of his person was not authorized by the warrant. Although the affidavit of probable cause outlined in detail the steps taken to effect a controlled buy at the residence of Maynard Wilson, it failed to reveal that Robert Wilson had been present during the buy made by the informant or on any other relevant occasion. Indeed, there was no indication that any occupants of the Lloyd Street residence, other than Maynard Wilson, had ever participated in illegal activities. Because the police failed to establish a nexus between other persons who might be present at the time of executing the warrant and illegal drug sales being made by Maynard Wilson, there was, no probable cause for a warrant to search all persons present on the premises at any given moment.

Appellant correctly observes that the warrant relied upon by the police authorized only the search of a named residence. This is similar to Commonwealth v. Eichelberger, 352 Pa.Super. 507, 508 A.2d 589 (1986), appeal denied, 515 Pa. 619, 531 A.2d 427 (1987), where a valid warrant authorized a search of the defendant’s residence. The police searched the defendant even though he had not been identified as a person to be searched. The Superior Court rejected the Commonwealth’s claim that language in the warrant identifying the defendant as the owner of the building was sufficient to justify a search of his person and held that the police had acted beyond the authority of the warrant.

The police in this case also acted beyond the authority of their warrant. The section of the warrant which identified the person or place to be searched described only the residence at E-25 Lloyd Street. It did not anywhere mention Robert Wilson. This warrant, therefore, was insufficient to authorize a search of appellant, for a warrant authorizing a search of a building does not authorize a search of those present when the warrant is executed. Commonwealth v. Luddy, 281 Pa.Super. 541, 551, 422 A.2d 601, 606 (1981), cert. denied, 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99.

When executing a warrant to search a residence, the police have authority to detain individuals who happen to be present. However, in order to search or arrest them, the police must establish independent probable cause. Because the Commonwealth believed the warrant authorized a search of appellant, it did not identify any independent grounds for searching him. Prior to arriving at the Lloyd Street residence, the officers had no information whatsoever concerning appellant. When they arrived, there was nothing in his conduct which established that he had engaged in criminal conduct or that he possessed a dangerous weapon. Mere presence and flight are insufficient to establish probable cause. See: Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973); Commonwealth v. Pegram, 450 Pa. 590, 301 A.2d 695 (1973); Commonwealth v. Reece, 437 Pa. 422, 263 A.2d 463 (1970). Although the police were entitled to detain appellant as they executed the warrant to search the building, an invasive search of his person was unreasonable. See: Commonwealth v. Luddy, supra 281 Pa.Super. at 552-553, 422 A.2d at 607. The evidence seized, therefore, should have been suppressed.

Reversed and remanded for a new trial. Jurisdiction is not retained meanwhile.

CERCONE, J., concurs in the result.

      . After strip searching the informant, police had provided him with money, had followed him to E-25 Lloyd Street, had observed him enter the premises and thereafter had received from him nine (9) vials which tested positive for cocaine.