author: HESTER, Judge: JOHNSON, Judge,

text:
    595 A.2d 86
    COMMONWEALTH of Pennsylvania, Appellant v. Wanda LINDSAY.
    Superior Court of Pennsylvania.
    Argued March 12, 1991.
    Filed June 28, 1991.
    Reargument Denied Aug. 30, 1991.

      Helen T. Kane, Asst. Dist. Atty., Philadelphia, for Com. Jeffrey P. Shender, Philadelphia, for appellee.
    Before MONTEMURO, JOHNSON and HESTER, JJ.
   HESTER, Judge:

The Commonwealth appeals from the order entered in the Court of Common Pleas of Philadelphia County on June 7, 1990, which suppressed certain evidence seized from appellee, Wanda Lindsay. For the reasons set forth below, we reverse and remand for further proceedings.

The procedural history of the case may be summarized as follows. On September 15, 1989, two days after Officer Karen Heywood of the Philadelphia Police Department purchased a quantity of cocaine from an unidentified male, several officers, armed with a warrant, searched the North Gratz Street residence from which the male had obtained the drugs. During the course of the search, Corporal Charles Gurski seized from appellee a bag which contained both packages and vials of cocaine. Accordingly, appellee was arrested and charged with possession, possession with intent to deliver, and conspiracy.

Several months after her arrest, appellee asserted that neither the warrant nor the circumstances then existing supported a search of her person pursuant to the fourth amendment or its analogous state provision, article 1, section 8 of the Pennsylvania Constitution, and moved to suppress the cocaine. On June 7, 1990, the trial court, which previously had conducted an evidentiary hearing on the matter, concluded that the seizure of the cocaine had been improper and entered the contested order. This timely appeal followed.

Preliminarily, we note that the Commonwealth, in conformity with the dictates of Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), has certified that the trial court’s order terminates or substantially handicaps its prosecution of appellee. Accordingly, we conclude that the present appeal is properly before us, see Commonwealth v. Reviera, 387 Pa.Super. 196, 563 A.2d 1252 (1989), allocatur granted, 525 Pa. 598, 575 A.2d 564 (1990), and address the merits.

Our standard for reviewing the suppression of evidence is well-established. In Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990), we discussed that standard and stated:

Where the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court 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. Robinson, 518 Pa. 156, 159-160, 541 A.2d 1387, 1389 (1988), citing, Commonwealth v. Hamlin, 503 Pa. 210, 215-216, 469 A.2d 137, 139 (1983). If the evidence supports the court’s factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986). It is for the trier of fact, rather than the reviewing court, to determine credibility. Commonwealth v. Capers, 340 Pa.Super. 136, 489 A.2d 879 (1985).

Keeping these principles in mind, we must examine the facts elicited during the course of the suppression hearing and, thereafter, determine whether the law supports the decision of the trial judge. An examination of the record reveals the following facts.

On the evening of September 13, 1989, Officer Heywood, while conducting an undercover investigation relative to the possible sale of narcotics, approached a North Gratz Street residence. When she reached the front of that building, the officer came into contact with an unnamed male who asked her if she would like to purchase some cocaine. After Officer Heywood replied in the affirmative and gave him twenty-five dollars, the man entered the residence. Several minutes later, he returned with five plastic packets of cocaine.

Following the completion of the drug transaction, Officer Heywood obtained a warrant to search both the residence and all persons therein engaged in either the destruction or concealment of evidence. Subsequently, after the male was arrested on a nearby street corner, several officers entered the house where they observed appellee attempting to conceal a brown paper bag between herself and the baby that she held. One of those officers, Corporal Gurski, removed the bag from her possession and discovered vials and packets of cocaine. Accordingly, he placed appellee under arrest.

We first consider whether the search of appellee’s person is within the ambit of the warrant. In this regard, we note that the warrant, rather than permitting, a search of all persons in the residence, merely authorized searches of persons then engaged in the concealment or destruction of evidence, conduct which constitutes the crime of hindering apprehension or prosecution. See 18 Pa.C.S. § 5105(a)(8). Consequently, it is clear that the analysis set forth in Commonwealth v. Graciani, 381 Pa.Super. 626, 554 A.2d 560 (1989), and Commonwealth v. Heidelberg, 369 Pa.Super. 398, 535 A.2d 611 (1987), affirmed by an equally divided Court, 522 Pa. 138, 560 A.2d 140 (1989), which related solely to the propriety of “all persons present warrants,” is inapplicable to the present factual situation. Furthermore, as our research has failed to reveal any cases by either the United States Supreme Court or the various courts of this Commonwealth regarding the question of the propriety of warrants that authorize searches of all persons then engaged in specified criminal activity, we will consider other relevant authority.

In his treatise on the fourth amendment, Professor Wayne LaFave discussed the distinction between “all persons present warrants” and warrants permitting the search of all persons engaged in criminal behavior. 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 230-33 (2d ed.1987). In concluding that the latter warrants may not support a personal search, he noted that by their terms, they leave to the executing officers the problem of selecting the persons to be searched on the basis of information that they then might have as opposed to information the magistrate has when the warrant is issued. Thus, searches premised upon those warrants alone cannot be supported since the warrants were based upon a probable cause determination made prior to the actual existence of probable cause. Since we find Professor LaFave’s suecinct analysis of the issue both logical and persuasive, we adopt it as our own. Turning to the warrant in question, we conclude that under the fourth amendment, it could not support the search of appellee’s person. Furthermore, as it is clear that the minimum guarantees provided by the fourth amendment are equally applicable to our analogous state constitutional provision, Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013 (1990); see also Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), the warrant also will not support the search under article 1, section 8.

Having determined that the warrant was insufficient to support the search of appellee, we address the question of whether appellee’s search may be upheld on the basis of probable cause. It long has been clear that warrantless searches are generally deemed unreasonable for constitutional purposes. See Commonwealth v. Bruner, 388 Pa.Super. 82, 564 A.2d 1277 (1989). However, if the contested search is supported by probable cause, see Commonwealth v. Hinkson, 315 Pa.Super. 23, 461 A.2d 616 (1983), and fits within any of the various well-defined exceptions to the warrant requirement, see Commonwealth v. McBride, 391 Pa.Super. 113, 570 A.2d 539 (1990), it will be upheld. Accordingly, we initially must determine whether the search was supported by probable cause.

Probable cause may be defined as facts or circumstances that would warrant a person of reasonable caution in believing that a criminal offense has been or is being committed. See Commonwealth v. Reviera, supra. In determining the existence of probable cause, a court must consider all factors and not concentrate on any individual element. Commonwealth v. Bailey, 376 Pa.Super. 291, 545 A.2d 942 (1988). Furthermore, the court should focus on the circumstances as seen through the eyes of a trained officer. Id. Finally, we note that analysis of the question of the existence of probable cause does not concern certainties, but rather practical considerations of everyday life which affect how reasonable and prudent persons act. Id.

In the present case, our review of the facts leads us to conclude that Corporal Gurski clearly had probable cause to believe that appellee, just prior to the search, was committing a crime. As Corporal Gurski and his fellow officers entered the North Gratz Street residence, appellee attempted to place a brown paper bag between herself and the baby she held. Since the officers entered the residence to search for drugs, drugs recently had been stored in the house, and drugs easily can be hidden in such a bag, one reasonably could have concluded that appellee was in possession of drugs and also was attempting to conceal this evidence from the police. As we indicated earlier, the concealment of evidence is conduct that constitutes the crime of hindering apprehension or prosecution. We therefore conclude that the officers had probable cause to believe that appellee was committing a crime.

We next consider whether the search in question falls within any of the exceptions to the warrant requirement. In this regard, we note that we long have held that a warrantless search will be excused where the need for prompt police action is imperative due to the possibility that the evidence sought to be preserved will either be destroyed or secreted from investigation. Commonwealth v. Ehrsam, 855 Pa.Super. 40, 512 A.2d 1199 (1986). Since the officers were searching the residence in an effort to uncover drugs, which easily are concealed and destroyed, and they had probable cause to believe that appellee was attempting to secret some on her person, it is clear that the need for prompt action was imperative to preserve the sought-after evidence. Consequently, we find the search of both appellee’s person and the bag was proper. Thus, the trial court’s decision to suppress the evidence uncovered must be reversed.

Order reversed and case remanded for further proceedings. Jurisdiction relinquished.

JOHNSON, J., files a concurring and dissenting opinion.

JOHNSON, Judge,

concurring and dissenting.

I readily join in so much of the Opinion of my colleagues as concludes that the search warrant in question could not support the search of Wanda Lindsay’s person under either the fourth amendment of the United States Constitution or article 1, section 8 of the Constitution of the Commonwealth of Pennsylvania. I agree that warrants purporting to authorize the search of “all persons engaged in the destruction and/or concealment of evidence” have no place in the administration of criminal justice in this Commonwealth.

Beyond that, I do not believe that the facts as found by the trial court will permit a conclusion of independent probable cause. Nor do I believe that the search and seizure which we review on this appeal can fit into any of the exceptions to the warrant requirement. Therefore, I must dissent.

When we review an order suppressing evidence, we are not bound by the suppression court’s conclusions of law. We are bound, however, by the court’s findings of fact, if these findings are supported by the record. Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986); Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1985). Moreover, the determination as to credibility of witnesses is within the sole province of the suppression court, as the trier of fact, which is free to believe all, part or none of the evidence. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984).

When ruling on suppression motions, the suppression court is required to enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights. Pa.R.Crim.P. 323(i); Commonwealth v. Haynes, 395 Pa.Super. 322, 577 A.2d 564 (1990). The Honorable Anthony J. DeFino did reach express findings of fact in this case and did enter them on the record. We are therefor bound by those findings and are not free to embellish them with additional testimony of the prosecution witness, even though uncontradicted.

Corporal Gurski did testify as to the events surrounding his seizing the brown paper bag. That portion of the officer’s testimony was as follows:

Q. [Denise Spadacini, A.D.A.]: Tell the Court the circumstances of [Wanda Lindsay’s] her arrest?
A. [Corporal Gurski]: Myself and Officer Painter and other members of the narcotics [force] entered the premises in company with uniformed officers, observed the defendant in the hallway next to the living room entrance taking a brown paper bag pushing it between her body and an infant child.
Q. Where in fact was the defendant?
A. Standing in the hallway, right by the steps in the entrance on the right side to the living room area.
Q. Can you tell the Court what, if anything, you observed with regard to the [defendant]?
A. I observed the defendant pushing a brown paper bag between her body and the infant she had in her arms. Q. Approximately how far were you from the defendant when you made that observation^?].
A. Ten feet.
Q. What, if anything, did you do at that time?
A. I retrieved the brown paper bag, and found it contained 94 clear vials with red caps and 136 red packets, both of which were cocaine.
Q. Where did you retrieve the bag from exactly?
A. From between her chest and the baby. She was holding a baby.
Q. After you retrieved the bag, what, if anything, did you do?
A. She was placed under arrest and we—
THE COURT: It was a brown bag which I presume you couldn’t see through?
THE WITNESS: Correct.

Suppression Hearing Transcript, May 17, 1990, pages 6-7, R.R. lla-12a.

In pertinent part, after hearing all of Corporal Gurski’s testimony, Judge DeFino found the following:

THE COURT: I am going to enter my findings of fact and conclusions of law.
On September 15, 1989, at 9:15 P.M., Corporal Figorski [sic] and fellow narcotics officers went to---- 2270 North Gratz Street, in the City of Philadelphia, ... armed with a search warrant which provides for a search of all persons on the premises and we are using the terminology, I didn’t have the warrant.
Read the specific terminology into the record.
MR. WEIDMAN (ASST. VOL. DEFENDER): All persons present who are engaged in the destruction and/or concealment of evidence.
THE COURT: The affiant on the search warrant was Officer Heywood and in the affidavit of probable cause, she alleged that two days before the search she went to the above address and outside of said premises was approached by an unknown black male and purchased five packets of cocaine.
At the time of the purchase, she gave the unknown black male $25.00 and upon receipt of the money he went into 2270 North Gratz Street, and shortly thereafter returned and handed her the five packets.
On the night of the execution of the warrant, there were several other persons on the premises, including the defendant who was holding a baby in her left arm and had a brown bag, sandwich type, between her body and the body of the baby. The police grabbed the bag, looked inside and found contraband.
The black male, who two days prior thereto sold the five packets to Officer Haywood, had been arrested outside the premises a couple of doors away from 2270 North Gratz Street.
The police had no information concerning the defendant, Wanda Lindsay, prior to that date, nor were they even aware of [her] existence until they entered the premises. The house was a two story building row home, nothing unusual in appearance.
While the search was being conducted a woman came into the house and informed the police she was the owner____
I want the record to reflect that in this particular case, Officer Haywood, who made the purchase, made it outside the house. She wasn’t in the house. The only thing involved in the house was that one purchase.
Also, small quantities of drugs could be hidden from innocent visitors or occupants, thus the amount of the drugs and the sales to have been alleged observed immediately preceding the issuance of the warrant in question provides the probable cause to warrant the issuance of this type of warrant.
My conclusions of law. The affidavit of probable cause only alluded to one transaction concerning five packets of cocaine for $25,00 and said sale was made outside of the premises.
Number j. The bag in the possession of the defendant was on her person. Since the police could not see what was in the brown bag, they were not justified in looking in the bag.
Number 5. The issuing authority, based on the facts presented to him or her, in the affidavit of probable cause, did not warrant the issuance of a search warrant of all persons on the premises. The police knew nothing of the defendant nor did they have probable cause to look in the bag. The taking of the bag and looking into it constituted an unlawful search and violation of the defendant’s 4th amendment rights.
For all the aforementioned reasons, the motion to suppress is granted.

Suppression Hearing Transcript, June 7, 1990, pages 6-8, 10-12. (emphasis added).

The majority refers to the following “facts” in support of its conclusion that Corporal Gurski had probable cause to believe that Wanda Lindsay was “committing a crime”:

As Corporal Gurski and his fellow officers entered the North Gratz Street residence, appellee attempted to place a brown bag between herself and the baby she held. Since the officers entered the residence to search for drugs, drugs recently had been stored in the house, and drugs easily can be hidden in such a bag, one reasonably could have concluded that appellee was in possession of drugs and also was attempting to conceal this evidence from the police. As we indicated earlier, the concealment of evidence is conduct that constitutes the crime of hindering apprehension or prosecution. We therefore conclude that the officers had probable cause to believe that appellee was committing a crime.

Majority opinion, page 644.

I cannot agree with the majority’s assertion that “drugs recently had been stored in the house.” The suppression hearing court, on two occasions, expressed its skepticism concerning such a conclusion. On the second occasion, Judge DeFino declared:

THE COURT: In this case I would have no problem. The police officer sees the individual mentioned buy five vials or whatever it is, the person goes into the house, a person comes out. gives the vials. The police keep the person under surveillance, see the person consummate transactions, go into the house, and come out of the house. Don’t see them go in any other houses in the neighborhood.
What about the shrewdy, and I gave an example. I had a case where a defendant was shrewd, he would go in one house, then another house and somebody’s car. There were federal agents misleading them as to precisely where the source of his stuff was coming from.
Does that mean the police have the right to go into every place the man went into? God forbid.
I don’t know how many people walk into my house for kids and have things in their pocket they aren’t supposed to have, then sell it and they say, they saw him come out of such and such a house. Does that give the police a right to do that? Not in this courtroom.
MS. SPADACINI: I would object to the allowing of the amendment.
THE COURT: I will give you an opportunity to submit a memorandum.

(Case Adjourned)

Suppression Hearing Transcript, May 17,1990, pages 20-21, R.R. 25a-26a.

The search warrant and affidavit would have supported a search of the premises for “cocaine, crack, marijuana and/or any other controlled substance listed under the ... Act, weighing and manufacturing devices for the above items, proof of residency and all monies.” On this appeal, we are only concerned with whether the officers were justified in seizing a closed, brown paper bag from Wanda Lindsay, opening the bag and then confiscating it along with its contents.

In proceeding with that analysis, I am persuaded by the rule suggested by our Mr. Justice Flaherty writing in the Opinion in Support of Reversal, in Commonwealth v. Gilliam, 522 Pa. 138, 143, 560 A.2d 140, 142-43 (1989), involving an “all persons present” warrant. There, Mr. Justice Flaherty wrote:

... The better approach is to examine each case to see whether, under strict scrutiny, the affidavit in support of the warrant makes out a sufficient nexus between the physical location to be searched and the likelihood that every person present at that location is involved in the criminal activity at issue. The inquiry, in other words, should be whether viewing the affidavit with all ambiguities resolved against the Commonwealth, it is more probably true than not that every person found at the place to be searched will be involved in criminal activity which is the subject of the search, (emphasis in original).

In my view, a warrant purporting to authorize searches of, and seizures from, all persons present “who are engaged in the destruction and/or concealment of evidence” is far more pernicious than a simple “all persons warrant”. My colleagues do not appear to disagree with that proposition. Even though the warrant before us differs from the type of plain “all persons warrant” in Gilliam, the application of a “strict scrutiny” test and resolution of ambiguities against the Commonwealth would seem to me to be appropriate on this appeal. While I firmly believe that the evidence in this case was unlawfully seized, a review of the arguments of my colleagues, and of the Commonwealth, assists me in concluding that the order granting suppression should be affirmed.

The majority would conclude that the arresting officers would have been justified in believing that a criminal offense had been or was being committed at the time they entered the premises at 2270 North Gratz Street. I vigorously disagree. The facts found by Judge DeFino, and supported by the record, are as follows. Two days before the search, Officer Haywood had gone to the subject address and was approached by an unknown black male. She purchased five packets of cocaine. At the time of the purchase, she had given the unknown black male some money and the male went into 2270 North Gratz Street. Shortly thereafter, he came back out and handed her the packets.

Prior to the police entering 2270 North Gratz Street on the night of the execution of the warrant, the unknown black male, who had been involved in the sale two days before, was arrested on the sidewalk several doors away from 2270 North Gratz Street. The police had no information concerning Wanda Lindsay prior to the evening of her arrest, nor were they even aware of her existence until they entered the premises. The officer who had made the purchase two days before, Officer Karen Heyward (“Heywood” in the official Suppression Hearing Transcript), never was inside the premises. Small quantities of drugs could be hidden from innocent visitors or occupants.

When Officer Gurski, Officer Painter and other members of the narcotics field unit entered the premises, Wanda Lindsay was standing in the hallway along with several other persons. Judge DeFino found that Lindsay “was holding a baby in her left arm and had a brown bag, sandwich type, between her body and the body of the baby. The police grabbed the bag, looked inside and found contraband.”

These facts clearly would not permit any reasonable person to believe that a crime had been committed or even was being committed. Concealment of evidence is a crime, as the majority suggests. However, the elements of that crime are not present on these facts. In order to commit the offense of hindering apprehension or prosecution, the actor must conceal or destroy evidence of the crime “with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime.” 18 Pa.C.S. § 5105(a). In this case, the only other person even conceivably involved in these transactions had already been arrested outside the premises and several doors away. And there was not one scintilla of testimony to suggest any connection between the defendant, Wanda Lindsay, and the unknown black male who had already been arrested. The majority does not tell us exactly whose apprehension or prosecution Lindsay was intending to hinder. Nor does the majority even suggest that the placing of the sandwich bag between her body and the body of the baby would permit any inference of intent to hinder the prosecution of another person other than Lindsay herself.

Hindering apprehension involves the common law crime of accessory after the fact to any felony. In order to be an accessory after the fact, one has to know that a felony has been committed. Commonwealth v. Finkelstein, 191 Pa.Super. 328, 156 A.2d 888 (1959). While it may not be necessary to prove the earlier crime, as part of establishing the commission of the obstruction of justice offense, it still is necessary to establish that the charged party intended to hinder the apprehension or prosecution of another. Commonwealth v. Lore, 338 Pa.Super. 42, 60-61 n. 10, 487 A.2d 841, 851 n. 10 (1984).

My colleagues make no attempt to connect their conclusion that Lindsay “was attempting to conceal this evidence from the police” with the necessary element that such concealment be done with the intent to hinder the apprehension of another. Concealing material on one’s person to prevent or delay one’s own arrest is ordinarily not a crime. It may well be human nature, but it is not a crime.

Without the necessary elements to support an inference that a crime was being committed, and since I would agree with the suppression hearing court that a closed, opaque sandwich bag tells the observer nothing about its contents, I must conclude that probable cause did not exist to support the search of Lindsay.

Having concluded that there was no probable cause to justify the search of Lindsay, I must also conclude that there are no facts before us to justify a search based upon exigent circumstances. My colleagues rely on Commonwealth v. Ehrsam, 355 Pa.Super. 40, 512 A.2d 1199 (1986) for the proposition that a warrantless search will be excused where the need for prompt police action is imperative due to the possibility that evidence sought to be preserved will either be destroyed or secreted from investigation. Ehrsam is clearly inapposite. In that case, police officers had gone to the scene of a shooting and were told that a recalcitrant female tenant had shot her landlord and was still in the house. We there reasoned that since the officers had been told that the tenant had already shot one person, considerations for their own safety as well as that of others clearly justified their entry into the house. Once inside, they were entitled to seize items in plain view. We concluded in Ehrsam that the photographs, measurements and officers’ recollections which were subsequently admitted into evidence were all of readily observable features of the interior of the house. The items seized were thus in plain view. Ehrsam, 355 Pa.Super. at 52, 512 A.2d at 1205.

We went on to conclude that the warrantless search was also justified by a need to insure that the weapon used in the shooting or the bullet casings not be removed or destroyed, given the recently reported crime. We thus concluded that exigent circumstances involving two separate conditions existed in the Ehrsam case: (1) preservation of evidence likely to be destroyed or secreted, Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978) and (2) removal of any threat of physical harm to police officers or other innocent individuals, Commonwealth v. Hinkson, 315 Pa.Super. 23, 27, 461 A.2d 616, 618 (1983). Neither of those circumstances confront us here.

When the police officers entered the premises at 2270 North Gratz Street, they had absolutely no reason to believe that Wanda Lindsay—of whose existence they were not even aware!—had been involved in any crime or was in possession of any contraband. It was not until Officer Gurski had seized the sandwich bag, opened it, and looked in it that he was aware of any possible contraband on the premises. And a brown paper bag resting between a woman and a baby being held in the woman’s left arm does not constitute a threat of physical harm to anyone.

I conclude that exigent circumstances did not exist and a search and seizure without a warrant must necessarily fail.

In summary, the search warrant and affidavit which purported to authorize the search of “any and all persons present who are engaged in the destruction and/or concealment of evidence” impermissibly seeks to predict future probable cause and is, therefore, invalid. The warrant will not justify the search and seizure of the bag possessed by Wanda Lindsay. The facts as found by the suppression hearing court are supported by the record and clearly rebut any suggestion of probable cause independent of the warrant. Even if the executing officers might reasonably be said to have found probable cause, the facts on this appeal will not permit a finding of exigent circumstances.

Judge DeFino’s conclusions are also supported by the record. Since the brown sandwich bag was in the possession of Lindsay, and since the police could not see what was in the bag, they were not justified in looking in the bag, given the limited facts known to them at the time they entered the premises. The police knew nothing of Lindsay nor did they have probable cause to look in the bag. The taking of the bag and the looking into it constituted an unlawful search and violation of Lindsay’s fourth amendment rights.

The order of June 7, 1990 which granted the defense motion to suppress physical evidence should be affirmed. I must therefore dissent.

      . We note that appellee originally raised this issue in the trial court. She contended that her search was not supported by probable cause. Notes of Testimony ("N.T.”), 5/17/90, at 2. Since the Commonwealth presented testimony opposing appellee's suppression motion, we find that it properly preserved the issue below. Furthermore, even though the Commonwealth may not have explicitly argued this, it impliedly raised the issue by asserting that the police had probable cause to conduct the search. Accordingly, we reject appellee’s assertion that this question has not been preserved for our review.


source: Caselaw Access Project

author: FORD ELLIOTT, Judge:

license: Public Domain

text:
    595 A.2d 94
    In re ESTATE OF Elgen M. SIMPSON, Decedent-Testatrix. Appeal of James R. SIMPSON, Mark A. Simpson and Denise R. Simpson.
    Superior Court of Pennsylvania.
    Argued April 17, 1991.
    Filed July 18, 1991.
    Petition for Allowance of Appeal Denied Nov. 25, 1991.

      Arthur J. Stewart & David W. Swanson, Warren, for appellants.
    Denise Simpson, pro se.
    Barry L. Smith, Warren, for participating parties.
    Before McEWEN, DEL SOLE and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from a final decree entered August 7, 1990, in the Court of Common Pleas of Warren County, Orphans Court Division. The final decree admits to probate the Last Will and Testament of Eigen M. Simpson, dated March 12, 1987, and a Codicil to the same dated April 29, 1987. The decree further provides that the bequests to James R. Simpson, Mark A. Simpson, and Denise R. Simpson (Curren) are forfeited. For the reasons which follow we affirm the final decree of the trial court.

The factual background giving rise to this action is convoluted, at best, yet a concise summary of those facts is as follows. The decedent, Eigen Simpson, was widowed in 1986. At that time Eigen’s family consisted of four grandchildren, all bom to Eigen’s only child, Robert J. Simpson. Robert J. Simpson had predeceased Eigen. Robert had been married twice and three of the grandchildren were from the first marriage and one grandchild was from Robert’s second marriage. The three grandchildren of Robert’s first marriage: James, Mark, and Denise are appellants herein. The grandchild of Robert’s second marriage, Robert P. Simpson, along with his mother, Judy Simpson Campbell, Robert’s second wife, are appellees herein. In 1983 the decedent had drafted a will which left equal shares to all four grandchildren. On March 26, 1987, desiring to account for cash gifts to her two oldest grandchildren, Mark and Denise, decedent revised her will to leave a greater share of her estate to the two younger grandchildren, James and Robert. The decedent enlisted the services of Attorney Kenneth Crosby to draft the March 26, 1987 will. At some point after that will had been drafted, Denise Simpson found Attorney Crosby’s consultation bill in the decedent’s purse. This discovery prompted Mark and Denise to attempt to discover the contents of the new will. Both the decedent and Attorney Crosby were questioned regarding the contents of the new will. Although decedent protested that she was displeased with their conduct, both Mark and Denise continued their efforts to discover the contents of the new will. This further strained the already troubled relationship between the decedent and these two grandchildren. On April 29, 1987, the decedent executed a codicil to the March 26, 1987 will. The codicil revoked the bequest to James of one-half of the residue of the estate and bequeathed the same to Judy Simpson Campbell. On September 14, 1987, Mark, Denise, and James Simpson petitioned the court for appointment of a guardian of Elgen’s estate alleging that on account of her advanced age she had suffered severe degenerative illness which brought about mental infirmities which left her unable to manage her property. After service of the guardianship petition, decedent perceived she would be committed to a nursing home. Thereafter, on September 19, 1987, the decedent committed suicide.

On September 23, 1987, the Register of Wills in Warren County issued letters testamentary to Marine Bank admitting to probate the Last Will and Testament of Eigen Simpson dated March 26,1987, and the Codicil thereto dated April 29, 1987.

On February 29, 1988, James R. Simpson petitioned the Orphans Court Division for citation to show cause why an appeal from the decree of the Register of Wills, admitting to probate the Last Will and Testament of testatrix dated March 26,1987, and the Codicil thereto dated April 29,1987, should not be sustained and the decree of the Register be opened to probate the Last Will and Testament dated September 12, 1983, as testatrix’s Last Will and Testament or, in the alternative, why the Codicil of April 29, 1987, should not be stricken and the Last Will and Testament dated March 26, 1987, without the Codicil, be sustained as the Last Will and Testament of testatrix. James Simpson based his will contest on the grounds that; one, testatrix lacked testamentary capacity to execute her last will and testament, and two, that Judy Simpson Campbell exercised undue influence over testatrix. Judy Simpson Campbell had been retained by testatrix’s grandchildren to be a companion and caretaker for testatrix after the demise of her husband.

A bench trial commenced on June 26, 1989, on the issues of testamentary capacity and undue influence. Subsequent to the testimony of Attorney Crosby and Dr. Walters, the contestant, James Simpson, withdrew the grounds of lack of testamentary capacity leaving for disposition the issue of whether Judy Simpson Campbell exercised undue influence over Eigen Simpson with regards to the March 12, 1987 will.

Following eight days of trial the Honorable Robert L. Wolfe entered a Decree Nisi dismissing James Simpson’s petition to show cause why an appeal from the decree of the Register of Wills admitting to probate the testamentary writings of Eigen Simpson dated March 26, 1987 and April 29,1987 should not be sustained. The order further provided that the Last Will and Testament dated March 26, 1987, and Codicil thereto dated April 29, 1987, be admitted to probate and that the forfeiture clause in the codicil be exercised against James Simpson, Mark Simpson and Denise Simpson.

Timely exceptions were filed to the Decree Nisi, and the same were dismissed by order of a Decree Absolute filed on August 7, 1990. This timely appeal followed.

Appellants have raised eight issues for our consideration.

I. Did the lower court commit an error of law in failing to consider direct evidence of undue influence?
II. When a confidential relationship exists between a testatrix and beneficiary (appellee) and when financial irregularities occur in the transactions between the two, whether the beneficiary (appellee) has the burden of proof to explain these financial irregularities and fraud?
III. When proving undue influence by indirect evidence, whether the element of weakened intellect (the second prong of the tripartite test) can be equated with testamentary incapacity?
IV. When proving undue influence by indirect evidence, whether the element of substantial benefit (the third prong of the tripartite test) can be satisfied only when the beneficiary personally receives one half or greater of the testatrix’s estate?
V. Whether weakened intellect is established when there exists uncontested testimony, that testatrix suffered from brain atrophy and at times exhibited confusion, paranoia, forgetfulness and other symptoms which long-time acquaintances of testatrix described as drastic changes?
VI. Whether a will’s forfeiture clause may be enforced against beneficiaries who did not join as party petitioners to the will contest and who did nothing more to participate in the contest than give testimony when called to the witness stand?
VII. Whether the showing of probable cause (required to negate the effect of the forfeiture clause) must rise to the level of the showing of undue influence?
VIII. Whether testimony offered to impeach the credibility of the appellee on issues of financial fraud is relevant?

We shall address appellants’ first five issues together as they all relate to the same basic question; the propriety of the trial court’s conclusion that appellee did not exert any undue influence over testatrix. Then we will consider issues six and seven as they both relate to the applicability of the forfeiture clause. Finally, we will consider appellants’ eighth issue.

Appellants’ first five issues all address various aspects of the trial court’s decision that appellee did not exert undue influence over the testatrix with respect to her decision to change her will. At the outset we note that our scope of review in a case of the instant nature is extremely limited. As this court stated in Estate of Bankovich, 344 Pa.Super. 520, 522-23, 496 A.2d 1227, 1229 (1985):

Our review in [a will contest] is limited to determining whether the findings of fact approved by the court en banc rest on legally competent and sufficient evidence, and whether an error of law has been made or an abuse of discretion committed. It is not our task to try the case anew. The rule is particularly applicable ‘to findings of fact which are predicated upon the credibility of witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.’ (citations omitted).

The burden of proving undue influence is on the contestant since a presumption of validity arises once a will is probated. See In re Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975). To meet this burden, contestants must establish by clear and convincing evidence that: (1) the testator was of weakened intellect when the will was executed; (2) there was a person in a confidential relationship with the testator; and (3) the person in the confidential relationship receives a substantial benefit under the will. It is only after all three elements are satisfied that the burden shifts to the proponent of the will to show the absence of undue influence. See Estate of Ross, 316 Pa.Super. 36, 462 A.2d 780 (1983).

The trial court found that although there was a confidential relationship between testatrix and the proponent of the will, Judy Simpson Campbell, the testatrix was not of weakened intellect when the will was executed and the proponent did not receive a substantial benefit under the will. After careful review, we find that the evidence in the record supports the findings of the trial court. Clearly there was a confidential relationship between the proponent and the testatrix. Neither party disputes that fact. The proponent became testatrix’s day-time companion after the death of testatrix’s husband. She assisted the testatrix with her daily affairs, and exercised a de facto power of attorney by signing testatrix’s name to her checks. However, it is quite clear that the mere fact that a beneficiary under a will stood in a confidential relationship with the testatrix, does not mean that the burden of proof is shifted to the proponent to prove that there was no undue influence. Before the burden of proof will shift, the contestant must also satisfy the other two elements in the three part test outlined above. See In re Estate of Button, 459 Pa. 234, 328 A.2d 480 (1974). The trial court concluded that the other two elements were not satisfied in the present case. Regarding the requirement that the person in the confidential relationship with testatrix receive the bulk of the estate or a substantial benefit, the trial court concluded that simple arithmetic demonstrates that proponent received only 25% of the estate under the contested will and codicil. Appellants argue that the court erred by not considering the amount bequeathed to proponent’s son, when determining whether proponent received a substantial share. Appellants fail to cite to any authority to support this contention. Furthermore, logic dictates against it. Proponent’s son was one of testatrix’s four grandchildren. That fact alone forms a sufficient, independent basis for the bequest to him. Appellants’ argument treats Robert as if he had no connection to testatrix other than the fact that he was proponent’s son. Also, under the March 26, 1987 will, both Robert and James received increased shares to offset against gifts that had been given to the other grandchildren by testatrix during her lifetime. There is no basis in either law or logic for including the share bequeathed to Robert in the total of proponent’s bequest. Appellants would also have this court consider that through the operation of the forfeiture clause, proponent has indeed inherited 50%, which they argue is a substantial share. Again, such an argument lacks any foundation. The forfeiture clause only came into effect after testatrix’s death and as the result of actions taken by the other grandchildren. For proponent’s share to have been the result of undue influence that share would have to have been substantial without the operation of the forfeiture clause. Otherwise, the alleged undue influence would have had nothing to do with the amount of the share. Rather the size of the share resulted from actions by three of the grandchildren. Thus, the lower court was correct in not including those amounts when figuring the size of proponent’s share.

The contestant likewise failed to prove by clear and convincing evidence that the testatrix was of weakened intellect. The record is replete with evidence to the contrary. Citing all of the record references at this point would be judicially inefficient. Rather, it is sufficient to say that based upon our thorough review of the record we conclude that the trial court’s findings of fact in this regard are supported by competent and sufficient evidence. This is particularly true given the fact that witness credibility played a vital role in this case and the trial court was in the best position to determine the weight to be accorded the testimony of each witness.

Therefore, we conclude that appellants’ issues which allege trial court error or abuse of discretion as to the question of undue influence, are without merit. Clearly, the contestant failed to satisfy the three part burden of proof necessary to make out a prima facie case that the will was the product of undue influence.

We now turn our attention to appellants’ sixth and seventh issues regarding the forfeiture clause. The issues concern, first, whether the clause ought to be enforced against James for filing a contest to the will, and second, whether the forfeiture clause ought to be enforced against Denise and Mark for allegedly conspiring with and assisting their brother in bringing the contest. The first issue, whether James’ bequest should be forfeited, is subject to the test outlined by our Supreme Court in In re Friend’s Estate, 209 Pa. 442, 448, 58 A. 853, 855-56 (1904).

Whether there was probablis causa litigandi must, in every case, be for the court distributing the estate of the testator; and when it is clear that there was such cause the same decree ought to be made that was made here. If it is not clear, or if it is doubtful whether there was probable cause, the will of the testator should be regarded as supreme, and his direction to forfeit carried out. A disappointed beneficiary under a will is not to be encouraged to make a contest to set it aside, and when he does so, in the face of notice from the testator that he shall have nothing if he attempts to strike down his provisions, he must understand the imminent risks he runs.

The second part of the forfeiture question, however, raises a more complex problem for this court. The issue of whether the forfeiture clause was properly enforced against Mark and Denise, who were not named parties in this contest, presents a question of first impression in this Commonwealth. In order to address properly this question it is necessary to bear in mind two key elements from Friend’s Estate, supra. From that case we learn that forfeiture clauses are to be strictly construed, but also that a will must always be interpreted with the primary concern of doing justice to the intent of the testatrix. With that in mind we must turn to our sister jurisdictions for guidance on this issue.

While there is some disagreement among the courts in the various jurisdictions which have addressed this issue, we are of the opinion that the better reasoned approach is to impose the forfeiture clause against those beneficiaries who aid in the will contest, even if they are not nominally parties to the contest. To hold otherwise would be to exalt form over substance. The long-standing approach in jurisdictions such as New York and New Jersey has been that where a legatee acts in concert with another whereby the other becomes the nominal party in the will contest; the legatee is just as real a contestant and is equally instituting and prosecuting an action to defeat the will. In re Pasternack, 52 Misc.2d 413, 275 N.Y.S.2d 703 (1966); Kayhart v. Whitehead, 77 N.J.Eq. 12, 76 A. 241 (1910). We conclude that such a rule is beneficial for two reasons. First, the rule honors the idea that the will is to be construed so as to promote the intentions of the testator. Second, the rule promotes the favorable public policy of limiting costly, time-consuming litigation against the estate when such litigation is not founded upon probable cause but rather upon disappointment over amount received. As noted by the Oklahoma Supreme Court;

A forfeiture clause is an executory limitation which is employed to effect testamentary intention, and its use is within the province of the testator if it does not contravene public policy or a rule of law ... Because no contest clauses protect estates from costly, time consuming and vexatious litigation; and serve to minimize family bickering concerning the competency and capacity of the testator, as well as the amounts bequeathed, they are favored by public policy.

Matter of Estate of Westfahl, 674 P.2d 21, 23 (Okl.1983).

Applying this rule to the present case we agree with the trial court’s decision to enforce the forfeiture clause against Mark and Denise Simpson. As the trial court noted, it takes little effort to conclude, based on the entire record, that the contest of this will was a collaborative effort among James, Mark and Denise.

The trial court found that the contestant was aided and assisted by his brother and sister in his contest of the will. During the turmoil preceding testatrix’s death it was Denise and Mark who retained counsel to look into supposed financial irregularities and to attempt to ascertain the contents of the new will. Furthermore, appellants all testified that they had met and discussed which one would actually bring the will contest. They all noted that the selection of James was a business decision. Mark was present throughout all depositions until he was ordered not to attend any more. Furthermore, counsel for James, the only named party, objected to and thwarted counsel for proponent’s attempt to negotiate this matter with Mark and Denise. Clearly this is a situation where Mark and Denise Simpson were contesting this will every bit as much as their brother, James, the nominal party.

Finally, we agree with the conclusion of the trial court that even the letter from Denise to the trial court, wherein Denise attempted to explain that she was not a party to this will contest, offers further support for the conclusion that this will contest was a collaborative effort whereby one of the grandchildren would contest the will, and the others would still be protected should that contest prove to be a failing effort.

Before I state my views I would like to say that, before the will was even contested, I had to make a decision whether to be part of the case or to support my younger brother through the inevitable journey he was about to undergo. I realize life is not fair and that is why we have a judicial system. I have been part of a jury twice in Warren, Pennsylvania, and therefore have some knowledge and experience with the “system,” if I may call it that. My decision, not to contest the will, was based on the “system” and statistics regarding this type of case and also, as some insurance if my brother lost his case. What I felt to be a good decision has turned out to be a bad strategy.

Finally, this conclusion is consistent with the basic tenet that a will is to be construed to do justice to the intent of the testatrix. Attorney Crosby, the scrivener of the will in question and the codicil, noted that testatrix took great care with him to draft a forfeiture clause that would not only disinherit anyone who filed a contest to the will, but also anyone who cooperated in contesting the will. By adopting the rule we do today, we likewise take great care to honor the intentions of the testatrix. Finally, as noted by the Alabama Supreme Court when confronted with this issue, to adopt any other rule would be, in effect, to permit the law to place a premium on artifice, and suffer the just reproach of seeking after the shadow instead of the substance. Donegan v. Wade, 70 Ala. 501 (1881). This court will not allow such a premium to be placed on artifice.

Appellants final issue concerns the ruling of the trial court not to admit evidence that Judy Campbell Simpson failed to report payment of wages from testatrix to the internal revenue service and other individuals in unrelated matters. The trial court ruled that such evidence was irrelevant in this proceeding and therefore inadmissible. Additionally, it is clear from the record that all parties to this action knew of these wages. Appellants offer no valid arguments as to why the trial court erred with respect to this ruling. We agree with the trial court that such evidence was irrelevant and therefore inadmissible.

The final decree of the trial court is affirmed. The Last Will and Testament of Eigen M. Simpson, dated March 12, 1987, and the Codicil thereto, dated April 29, 1987, are admitted to probate. The bequests to James R. Simpson, Mark A. Simpson, and Denise R. Simpson are forfeited.

Decree affirmed.

      . We take this opportunity to caution appellants’ counsel that in the future they would be wise to adhere strictly to the Rules of Appellate Procedure. This court does not look favorably upon the fact that appellants' brief is eighty-two pages in length (one hundred and forty-eight pages if one includes the attachments), which is far in excess of the fifty page maximum limit set forth in Rule 2135. It is well within the province of this court to sanction a party who does not strictly comply with these rules, including a sanction as severe as quashing an appeal. See Pa. R.A.P. No. 2101.


author: CERCONE, Judge: OLSZEWSKI, Judge,

text:
    595 A.2d 101
    COMMONWEALTH of Pennsylvania, Appellant, v. Martha Jane GIFFIN, Appellee.
    Superior Court of Pennsylvania.
    Submitted May 6, 1991.
    Filed July 18, 1991.

      Russel B. Korner, Jr., Asst. Dist. Atty., Uniontown, for Com., appellant.
    William E. Duffield, Uniontown, for appellee.
    Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal by the Commonwealth from an order returning the sum of one thousand two hundred sixty-six dollars ($1,266.00) in United States currency to appellee, Martha Jane Giffin, pursuant to the Controlled Substances Forfeiture Law, 42 Pa.C.S.A. §§ 6801-6802. For the reasons set forth below, we affirm the order entered by the lower court.

The record shows that in October of 1988, appellee was arrested and charged with possession of a controlled substance (marijuana) and delivery or possession with intent to deliver a controlled substance (marijuana). In exchange for a nolle prosequi on the charge of delivery or intent to deliver, appellee pled guilty to simple possession. N.T. 1/10/90. In February of 1990, she was sentenced to serve a one (1) year term of probation. Subsequently, a hearing was held to determine whether the cash sum of $1,266.00 seized by the police at the time of appellee’s arrest should be forfeited to the Commonwealth under the Controlled Substance Forfeiture Law (“the Forfeiture Law”), supra. After a full hearing before the Honorable Gerald R. Solomon, an order was entered returning the money to appellee.

The instant appeal was timely filed by the Commonwealth and raises three issues for our consideration: (1) whether the Commonwealth presented sufficient evidence that the seized currency was used or intended to be used to facilitate a violation of the Controlled Substance, Drug, Device and Cosmetic Act (“the Controlled Substance Act”), 35 P.S. §§ 780-101 et seq.; (2) whether the trial judge committed reversible error by failing to consider certain factors presented by appellant during the forfeiture hearing; and (3) whether the trial judge erred by refusing to permit an expert to render an opinion as to whether drugs were being sold from appellee’s residence. We shall review these claims seriatim. Initially, however, we address our jurisdiction to entertain this appeal.

The question of an appellate court’s jurisdiction to consider any particular case may properly be raised sua sponte. Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). The Judicial Code states that the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas resulting from all civil actions or proceedings by the Commonwealth government, including those instituted by any officer thereof acting in his official capacity. 42 Pa.C.S.A. § 762(a)(1)(ii). The Commonwealth Court has construed this provision as providing for the exclusive jurisdiction of the Commonwealth Court in forfeiture proceedings. See Commonwealth v. McDermond, 127 Pa.Commw. 17, 20-22, 560 A.2d 901, 903 (1989) (discussing Commonwealth Court’s jurisdiction to consider the forfeiture of gambling proceeds pursuant to the Liquor Code, 47 P.S. § 6-602(a)). However, this court has recently held that the Superior Court has jurisdiction to entertain forfeiture proceedings under both the prior forfeiture law and the current statute because these types of actions are drug-related and quasi-criminal in nature. Commonwealth v. $126,730.50, 399 Pa.Super. 118, 121-23, 581 A.2d 953, 955-56 (1990).

In the interests of judicial economy, a recent panel of this court declined to transfer an appeal to Commonwealth Court where neither party timely objected to the jurisdiction of the Superior Court. See In re: Laying Out and Opening a Private Road, 405 Pa.Super. 298, 592 A.2d 343 (1991) (even where Commonwealth Court has claimed exclusive jurisdiction over subject matter of appeal, Superi- or Court can retain case in interests of judicial economy).. Neither party to the instant appeal has questioned the exercise of appellate jurisdiction by the Superior Court. Therefore, any challenge on this ground is deemed waived. See Pa.R.A.P., Rule 741(a), 42 Pa.C.S.A. (providing for the perfection of jurisdiction in an appellate court in which appeal was filed upon the appellee’s failure to timely object); General Municipal Authority v. Yuhas, 392 Pa.Super. 397, 401, 572 A.2d 1291, 1293 (1990) (it is within a panel’s discretion to decline transferring a case even where Commonwealth Court has exclusive appellate jurisdiction over matters raised on appeal if neither party objects to the exercise of appellate jurisdiction by Superior Court). But cf. Commonwealth v. 502-504 Gordon St., 405 Pa.Super. 465, 592 A.2d 756 (1991) (Superior Court would not retain jurisdiction over appeal from an order of forfeiture effectuated pursuant to 42 Pa.C.S.A. §§ 6801-6802 as subject matter jurisdiction is vested in the Commonwealth Court). We shall accordingly retain jurisdiction and address the merits of the appeal.

Appellant first argues that the evidence adduced at the hearing below was sufficient to show that the currency seized upon appellee’s arrest was used, or was intended to be used, to facilitate a violation of the Controlled Substance Act. In this context, the Commonwealth contends that the currency is subject to forfeiture because it may be deemed to be proceeds from the illegal sale of marijuana. It is well established that there need be no underlying conviction of a crime to support a forfeiture. Commonwealth v. One 1988 Ford Coupe, 393 Pa.Super. 320, 324 n. 2, 574 A.2d 631, 633 n. 2 (1990); Petition of Maglisco, 341 Pa.Super. 525, 491 A.2d 1381 (1985); Commonwealth v. 1978 Toyota, 321 Pa.Super. 549, 468 A.2d 1125 (1983). In order to show that currency should properly be forfeited to the state, the Commonwealth need only prove, by a preponderance of the evidence, that the currency in question was used to facilitate a drug transaction. Commonwealth v. One 1988 Ford Coupe, 393 Pa.Super. at 327 and 332-33, 574 A.2d at 635 and 638. See 42 Pa.C.S.A. § 6801(a)(6)(i)(A) and (B) (listing property subject to seizure).

Where currency is found in close proximity to controlled substances which are unlawfully possessed, such currency is rebuttably presumed to be proceeds deriving from selling a controlled substance in violation of the Controlled Substance Act. 42 Pa.C.S.A. § 6801(a)(6)(ii). In Commonwealth v. Tate, a case decided under the prior forfeiture statute, a panel of this court stated that a rebut-table presumption is a means by which a rule of substantive law is invoked to force the trier of fact to reach a given conclusion, once the facts constituting its hypothesis have been established. Id., 371 Pa.Super. 611, 616-17, 538 A.2d 903, 906 (1988), quoting Commonwealth v. Shaffer, 447 Pa. 91, 104-06, 288 A.2d 727, 735 (1972), cert. denied, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972). The Tate court further explained that “[a] rebuttable presumption forces the defendant to come forth or suffer inevitable defeat on the issue in controversy.” Id. The specific test used to evaluate the evidence presented at a forfeiture hearing is whether it was “more likely than not” that the funds were used or intended to be used to facilitate a violation of the Controlled Substance Act. Commonwealth v. One 1988 Ford Coupe, 393 Pa.Super. at 333, 574 A.2d at 638.

As applied to the instant case, Trooper Daniel J. Venick testified for the Commonwealth that the police seized from appellee one bag of marijuana, three bags of “vegetable matter with seeds,” two containers of “roaches,” United States currency totalling $1,266.00, and drug paraphernalia consisting of a glass bong pipe (found under appellee’s couch), a quantity of empty plastic bags stored in the vicinity of the marijuana, and cigarette papers. N.T. 11/16/90 at 26-28. Trooper Venick, who was qualified as an expert, further testified that the small bags of “vegetable matter” were, in his opinion, marijuana packaged for sale. Id. at 30. Trooper Earl Roberts, present at appellee’s arrest, stated that he saw her attempting to hide a roll containing the sum of $850.00 in her couch, near the glass bong. Id. at 37-38. Trooper Roberts testified that he found the additional sum of $411.00 in a jacket lying on appellee’s coffee table. Id. at 39.

The Commonwealth also produced evidence pertaining to the results of a “nasal lineup” conducted by Corporal Leonard Maharowski, a canine narcotics investigator. Corporal Maharowski explained that in a “nasal lineup,” envelopes of similar bulk, weight and appearance are presented to a dog trained to “sniff test” for marijuana. Id. at 42-43. Under the direction of Corporal Maharowski, Trooper Roberts prepared four envelopes, one of which contained the cash seized from appellee. Id. at 43. These envelopes were then presented to “Decoy,” Corporal Maharowski’s trained dog. Id. Decoy reacted very aggressively to the package containing appellee’s money by ripping and tearing the envelope open. Id. Corporal Maharowski testified that this behavior, called “alerting,” was consistent with the presence of marijuana on appellee’s money. Id.

In view of the fact that the currency was found in the same room with appellee’s drug paraphernalia and in close proximity to the controlled substances packaged for sale and stored in appellee’s kitchen, the money is presumed to be derived from the sale of the controlled substances. 42 Pa.C.S.A.§ 6801(a)(6)(i)(A). It thus becomes a question of whether appellee introduced sufficient evidence to rebut this presumption. See also Commonwealth v. $803 Cash, 403 Pa.Super. 526, 589 A.2d 735 (1991) (drug residue found on seized money was sufficient to support an inference that the funds had been part of an illegal drug transaction and were therefore subject to forfeiture).

At the hearing, appellee testified that two days before her arrest, she had cashed a Welfare check in the amount of $411.00. N.T. 11/16/90 at 5-6. She also stated that her paramour’s brother had given her $1,000.00 in cash so that she could give the money to her paramour, who was out of town at the time. Id. at 5-9. In contradiction to Officer Roberts’ testimony, supra, appellee averred that she kept the rolls of cash on her person in two separate pockets in her pants. Id. at 5. Appellee candidly admitted that she possessed marijuana for her personal use. Id. at 8. In response to a question by defense counsel, Trooper Maharowski conceded that a dog trained to detect the presence of drugs could react to money handled by a person who used marijuana merely for personal enjoyment. Id. at 42.

Mr. Neil Patrick, the brother of appellee’s paramour William Patrick, testified that he had received $27,000.00 as the settlement of a Social Security disability claim. Id. at 18. Because his brother helped by driving him to his Social Security hearings, Neil Patrick promised to give $1,000.00 to William. Id. Neil Patrick stated that he gave the money, in cash, to appellee so that she could in turn hand it to her paramour who was working in Virginia at that time. Id. at 18-19. Mr. William Patrick corroborated the existence of the agreement between himself and his brother, and stated that he had intended to use the $1,000 to purchase a car for appellee. Id. at 20-22. From these facts, the lower court held that the Commonwealth failed to show that the funds were subject to forfeiture.

To rebut appellee’s assertion that the $1,266.00 was legitimately in her possession, the Commonwealth argues that appellee’s own testimony established that her sole source of income at the time of the hearing derived from bi-weekly Welfare checks in the amount of $411.00. Id. at 6-10. The Commonwealth demonstrated that from her monthly total of $822.00 in welfare funds, appellee was required to pay rent in the amount of $200.00 and feed a family of eight. Id. at 9-10. Based upon these facts, appellant urges us to find that the lower court erred in ruling that the Commonwealth failed to sustain its burden of proof that it was “more likely than not” that the particular funds seized were derived from the sale of contraband and were used to further a violation of the Controlled Substance Act. This we cannot do.

Although the $1,266.00 was arguably found in close proximity to controlled substances which were unlawfully possessed, this fact alone merely raises a rebuttable presumption that they were proceeds deriving from the sale of the controlled substance. Appellee presented evidence, which the lower court found credible, that the specific funds seized were derived from legitimate sources, i.e., appellee’s welfare check and a disability settlement. This evidence was sufficient to rebut the presumption raised by the discovery of the money in close proximity to the illegal controlled substance. We are cognizant of the fact that the Commonwealth also.presented evidence that appellee possessed marijuana packaged for sale. However, the Commonwealth’s expert witness admitted that the particular packages of marijuana found at appellee’s residence were as consistent with a purchase made for personal use as for intended resale. N.T. 11/16/90 at 34. Thus the lower court correctly ruled that these facts fail to sufficiently establish a nexus between the specific funds in question and any violation of the Controlled Substance Act by appellee.

Nor are we convinced by appellant’s somewhat convoluted argument regarding appellee’s acknowledged public assistance income. The Commonwealth concedes that appellee had legitimately obtained $411.00 in cash from her relief check shortly before her arrest. Although appellant patently disbelieves the testimony of the Patrick brothers regarding the alleged $1,000.00 payment to appellee on behalf of her paramour, the assessment of credibility is properly left to the fact finder. Commonwealth v. Nelson, 399 Pa.Super. 618, 623-25, 582 A.2d 1115, 1118 (1990). See also Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989) (under ordinary circumstances, an appellate tribunal should not entertain a challenge to the weight of the evidence since their examination is confined to the “cold record”). Appellee presented evidence, which the lower court found reliable, that within two days of her arrest, she had licitly received the sum of $1,411.00. As appellee adduced testimony that the response of the drug sniffing dog when presented with the seized funds could have been a reaction to the money’s prior handling by a marijuana user, i.e., appellee, we agree with the lower court that the Commonwealth has failed to show that the funds were more likely than not derived from or used to facilitate a violation of the Controlled Substance Act. Finding no basis on which to grant the relief appellant seeks, we affirm the ruling of the trial court on this issue.

Next, appellant urges us to vacate the order in question because, in determining whether the seized money should be returned to appellee, the lower court did not apply a test set forth by the Federal District Court for the Northern District of Georgia in U.S. v. $319,820.00, 620 F.Supp. 1474 (N.D.Ga.1985). The simple answer to appellant’s challenge is that the lower court was not required to employ federal law from a foreign jurisdiction in order to interpret Pennsylvania law. In the absence of a ruling on a particular question by the United States Supreme Court, the decision of a federal intermediate appellate panel, much less that of a federal district court, is not binding on Pennsylvania courts. Cianfrani v. Johns-Manville Corp., 334 Pa.Super. 1, 6, 482 A.2d 1049, 1051 (1984). Pennsylvania courts are not bound by the decisions of inferior federal courts where the case specifically concerns Pennsylvania law. See, e.g., Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A.2d 199 (1962); Commonwealth v. Lacey, 344 Pa.Super. 576, 496 A.2d 1256 (1985). While decisions of the lower federal courts have a persuasive authority, they are not binding on Pennsylvania courts even where they concern federal questions. Hangelias v. Dawson, 158 Pa.Super. 370, 374, 45 A.2d 392, 394 (1946). As discussed supra, in the instant case, the Pennsylvania trial court properly applied Pennsylvania law.

Finally, appellant argues that it was error for the lower court judge to refuse to permit an expert witness to render an opinion as to whether drug sales were being made from appellee’s home. The Commonwealth has correctly stated that counsel for appellee stipulated to the fact that the witness, Trooper Venick, was an expert in the field of narcotics. N.T. 11/16/90 at 28. In general, an expert witness may express an opinion on matters which are within his or her scientific training and experience. Commonwealth v. Gross, 307 Pa.Super. 353, 357, 453 A.2d 620, 622 (1982). Such testimony is admissible where it involves explanations and inferences not within the range of ordinary training, knowledge, intelligence and experience. Commonwealth v. Cepull, 390 Pa.Super. 167, 169-70, 568 A.2d 247, 248 (1990), allocatur denied, 525 Pa. 624, 578 A.2d 411 (1990). However, the admissibility of expert testimony is within the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion. Commonwealth v. Emge, 381 Pa.Super. 139, 141, 553 A.2d 74, 74 (1988).

In the instant case the record shows that Trooper Venick testified extensively about the conditions he observed at appellee’s, residence as well as with regard to his conversation with appellee at the time the search took place. N.T. 11/16/90 at 24-36. The witness’ testimony included a description of the drug paraphernalia found in appellee’s possession and its purpose, the quantity and location of the drugs seized, and a discussion of the type of packaging used on the marijuana. Id. However, the testimony was interrupted after the following exchange:

Q. (By counsel for the Commonwealth): And the plastic bag that you discovered with one ounce of vegetable matter in it, what is a plastic bag used for?
A. To keep the marijuana together so it can be transported.
Q. And typically how is marijuana transported, Trooper?
A. In individual bags of that nature.
Q. When you say bags, are they plastic, clear bags?
A. They are clear plastic bags that you can see what is inside of them, very similar to a sandwich bag.
Q. And do you know the weight of that marijuana in those bags?
A. All total, it was in excess of 30 grams.
Q. Which is about what, one ounce of marijuana?
A. Yes.
Q. And I noticed also, that there were three rolled plastic bags containing vegetable matter. Why would somebody have three rolled plastic bags, Trooper?
A. I would say that would be, it was different. It was smaller bags, like it was going to be sold or distributed.
Q. Trooper, do you have an opinion as to whether or not drugs were being sold from [appellee’s residence]?

Id. at 29-30. At this point defense counsel objected. In response, the hearing judge ruled:

(By the Court): He has testified what, in his opinion, the drug paraphernalia was and he has testified that the three rolled bags are normally sold. You have now asked him his opinion as to whether or not drugs were sold from this residence. We are going to sustain that objection.

Id. at 30-31. Following this ruling, the witness additionally stated that appellee kept “a half a dozen or so” empty plastic storage bags (“baggies”) in a kitchen cupboard with her household supplies. Id. at 35. In light of the comprehensive testimony which the witness was permitted to give, we are unable to conclude that the lower court committed a clear abuse of discretion merely by preventing Trooper Venick from uttering the culminating statement that he believed drugs were being sold from appellee’s residence. Order affirmed.

Olszewski, J., files a concurring and dissenting opinion.

OLSZEWSKI, Judge,

concurring and dissenting:

While I agree with Judge Cercone’s well-reasoned conclusion that this Court may exercise jurisdiction over the instant matter, I believe that the Commonwealth has satisfied its burden of proving, by a preponderance of the evidence, that the currency was used to facilitate a drug transaction. The majority is correct in finding that due to the fact that the currency was found in close proximity to the marijuana, a rebuttable presumption exists that such currency is the product of the sale of the controlled substance. Unlike the majority, however, I would not find that appellee herein has introduced sufficient evidence to rebut this presumption and would hold that the funds are subject to forfeiture.

Trooper Daniel Venick testified that the other state troopers seized various prepared bags of marijuana and other drug paraphernalia from the home of appellee. Incident to that seizure was the discovery, in separate bundles, of $850.00 and $411.00. Trooper Earl Roberts, present at the scene, testified that he observed appellee attempt to hide the bundle containing $850.00 in the couch. Trooper Maharowski testified that a nasal lineup, consisting of four envelopes, one of which contained the seized money, was conducted at the police station. A police dog, trained in the detection of narcotics, examined the envelopes and reacted to the envelope containing the money. Trooper Maharowski testified that the dog’s reaction indicated the presence of narcotic odor on the money in that envelope.

Appellee attempted to rebut the presumption that the funds seized were proceeds from the sale of the marijuana, by alleging that she received the sum of $1,000.00 from her paramour’s brother, with which she planned to buy an automobile. She also testified that the $411.00 found was from a welfare check that she cashed two days before the arrest.

I do not believe that the proffered attempt made by appellee to advance other sources from which she received the two bundles of money seized sufficiently rebuts the presumption that it is proceeds from the sale of a controlled substance. The result reached by the majority would set a poor precedent for overcoming this presumption, as one would need to merely articulate an alternative source of the money seized in order to successfully rebut the presumption. The Commonwealth’s presentation of more than sufficient evidence that the funds seized were derived from the sale of contraband should not be so easily discounted.

      . 35 Pa.C.S.A. § 780-113(a)(16).

      . Id. § 780-113(a)(30).

      . 35 P.S. §§ 780-128 and 780-129 (repealed).

      . 42 Pa.C.S.A. §§ 6801-6802.

      . According to the witness, the slang term “roach" indicates the end of a marijuana cigarette. N.T. 11/16/90 at 28.

      . Appellee explained the discrepancy between the sum seized and the $1,411.00 total she had received by stating that she had paid $100.00 on her rent and had also purchased some household supplies. N.T. 11/16/90 at 7-8.

      . In connection with its second argument, the Commonwealth urges us to interpret certain "collateral" factors present in the instant case as evidence that appellee was engaged in drug trafficking. The first such factor is appellee’s failure to present proof of employment, from which the Commonwealth implies that she had no legitimate source of income. However, as the Commonwealth has not contested appellee's evidence that she received public assistance, we cannot infer that she had no legal source of income. The fact that appellee lived on a restricted budget at the time in question does not logically and necessarily lead to the conclusion that the funds in her possession at the time of the seizure must have been the fruit of illegal endeavor.
      The second collateral factor cited, appellee’s alleged "nervousness" when the police entered her home, is not enough, viewed in the context of all the circumstances of the case, to support the inference that appellee was a drug dealer. Appellee's nervous reaction to the presence of the police officers may as reasonably be explained as a consciousness of guilt for simply possessing a controlled substance, marijuana, which appellee readily produced upon the troopers’ request.

        Nor do we find the fact that appellee refused to disclose the source of her personal “stash” dispositive of whether she was a drug dealer. N.T. 11/16/90 at 15. When the Commonwealth attorney asked who gave the marijuana to appellee, she replied that she would not say the name because she “didn’t want to get them in trouble.” Id. Appellee specifically stated that she only received an ounce of marijuana from this source. Id. Further, and contrary to the Commonwealth’s implication, the words “enough to sell to support a living" were not uttered by appellee but rather by the Commonwealth attorney. Id. We are cognizant of the following testimony cited by the Commonwealth in which Trooper Venick described statements allegedly made by appellee at the time of the search and seizure:
      She wouldn’t tell me from where or from whom she received the marijuana, but she did say that it was for her own personal use. Then she went on to tell me that there were two additional bags that I found in the kitchen belonged to the one that she turned over to me, that she had, cut was the word she used, cut those for two friends of hers. [Sic] She wouldn’t identify these two friends but she did tell me she would get ten dollars apiece for the bags.

        Id. at 27. Appellee herself vehemently denied dealing drugs for profit. Id. at 14. As we have already stated, it is for the trier of fact to evaluate the credibility of conflicting evidence. See Commonwealth v. Nelson, supra.

      . Additionally, Trooper Venick was of the opinion that the marijuana bags were packaged for sale.

      . The discrepancy between the $850 seized during the search and the $1,000 that appellee testified she received from another source was explained by appellee at trial. She testified that she used the difference of the money for rent and household supplies. Appellee’s paramour and his brother both corroborated the fact that appellee received the $1,000 from the latter.