author: TAMILIA, Judge:

text:
    608 A.2d 1087
    Margaret LEWANDOWSKI, Individually and as Administratrix of the Estate of Frank Lewandowski v. The LIFE INSURANCE COMPANY OF NORTH AMERICA and Bankers and Shippers Insurance Company of New York, Stanley Lewandowski. Margaret LEWANDOWSKI, Individually and as Administratrix of the Estate of Frank Lewandowski v. The LIFE INSURANCE COMPANY OF NORTH AMERICA. Appeal of LIFE INSURANCE COMPANY OF NORTH AMERICA.
    Superior Court of Pennsylvania.
    Argued March 12, 1992.
    Filed May 27, 1992.

      Timothy G. Lenahan, Scranton, for appellant.
    Mark A. Pelak, Wilkes-Barre, for Margaret Lewandowski, appellee.
    Gerard W. Langan, Pittston, for Stanley Lewandowski, appellee.
    Before WIEAND, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

The Life Insurance Company of North America, hereinafter INA, takes this appeal from the March 28, 1991 Order denying its petition for interpleader and granting plaintiffs request for consolidation. The underlying dispute is a contest between a decedent’s widow and son for the proceeds from the decedent’s annuity which was issued by INA.

On September 17, 1987, appellee Margaret Lewandowski filed a complaint in federal court to recover insurance proceeds to which she alleged she was entitled as beneficiary of her deceased husband’s annuity contract. Stanley Lewandowski, the decedent’s son from a previous marriage and the named beneficiary of the proceeds, was joined as a third party defendant. After INA filed its answer, which included a counterclaim for interpleader, the case was dismissed for lack of subject matter jurisdiction and was transferred to the Luzerne County Court of Common Pleas. On August 7, 1990, Margaret Lewandowski filed a separate complaint in trespass alleging INA had negligently ignored her written request to change her husband’s named beneficiary from Stanley to herself. One week later, INA filed its petition for interpleader which is the subject of this appeal.

The court denied INA’s petition reasoning Margaret Lewandowski’s second complaint alleged a negligence cause of action against the stakeholder, INA, separate and distinct from the initial complaint which had alleged contractual liability. The court found such independent liability precluded INA’s request for interpleader. We disagree and, therefore; reverse the Order denying INA’s petition for interpleader.

An interpleader is the procedural mechanism through which adverse claimants against the money, property or debt held by another may be required to litigate their claims in one proceeding. McKinley v. Mutual Life Ins. Co., 278 Pa. 300, 123 A. 304 (1924). Rival claims against an insurer for insurance proceedings is a classic candidate for interpleader. Edwards v. Metropolitan Life Ins. Co., 215 Pa.Super. 390, 259 A.2d 183 (1969), cert. denied, 399 U.S. 928, 90 S.Ct. 2244, 26 L.Ed.2d 794 (1970); University City Savings & Loan Assoc. v. Girard Life Ins. Co., 215 Pa.Super. 57, 257 A.2d 92 (1969). An interpleader’s purpose is the avoidance of the expense and inconvenience which results from the defense of multiple actions arising out of identical claims of entitlement to a “stake” of money, property or debt. Id.; Maxwell v. Phila. Fire Dept. Assoc., 138 Pa.Super. 356,10 A.2d 857 (1940). An interpleader may be properly granted under such circumstances to avoid exposing the defendant to “the vexation of multiple suits, or multiple liability upon the same claim.” University City Savings & Loan Assoc., supra. However, interpleader should be denied where the petitioner has incurred independent liability to either of the claimants. Fisher v. Stevens Coal Co., 136 Pa.Super. 394, 7 A.2d 573 (1939). The grant or refusal of a petition for interpleader is an equitable consideration resting within the sound discretion of the trial court and will not be disturbed absent an abuse of such discretion. U.S. Ñational Bank in Johnstown v. Robel Construction, Inc., 333 Pa.Super. 605, 482 A.2d 1037 (1984).

In response to INA’s contention the court abused its discretion by denying its petition for interpleader, appellee Margaret Lewandowski presents two arguments for our consideration. First, appellee avers the petition was properly denied as a consequence of its untimeliness. See Pa. R.C.P. 2306(a)(1). We find no merit to appellant’s unreasonable delay argument. When considering timeliness, the critical period is that between the date the party seeking interpleader is made party to the action and the date the petition is filed. U.S. National Bank, supra. The record reflects appellant included its initial request for interpleader in its answer, cross-claim and counterclaim filed in response to the complaint erroneously filed in federal court. After the case was transferred to the Court of Common Pleas, the plaintiff reinstated the misdirected complaint on July 19, 1989 and, on August 13, 1990, appellant again filed a petition for interpleader. We find the record does not support appellee’s allegation of untimeliness.

Next appellees Margaret and Stanley both argue an interpleader is proscribed because INA has incurred liability separate and apart from its liability under the annuity policy. We find this argument equally without merit. In her initial complaint (1765-C of 1988), grounded in contract, the appellee demanded the annuity value of $86,500 plus punitive damages together with interest thereon. In her second complaint (2872-C of 1989), appellee alleged appellant negligently disregarded her handwritten request to change the insured's beneficiary and demanded $86,500 together with interest thereon. This Court fails to see how this second complaint subjects appellant to independent liability beyond that possibly incurred as a consequence of not distributing the annuity payments to the decedent’s widow. In each complaint, the decedent’s widow alleges she is her husband’s beneficiary and seeks the value of the annuity plus interest. In her first complaint, appellee also sought punitive damages based on INA’s failure to pay the annuity proceeds “without any reason based in fact or law.” Her complaint presumes she is the sole individual claiming the proceeds. Such is not the case. The situation before this Court, wherein two adverse claimants demand the proceeds of an insurance contract, is the exact situation an interpleader is designed to address. The parties set great store by a federal case each believes supports its position in this matter. Indeed, it is also cited in the trial court’s Opinion. Although not controlling nor dispositive of the issue before us, the actual similarity of the case to the one presently before us behooves our review. We believe Provident Mutual Life Ins. Co. of Phila. v. Ehrlich, 374 F.Supp. 1134 (E.D.Pa.1973), modified, 508 F.2d 129 (3d Cir.1975), supports our finding the court erred by not granting INA’s request for interpleader. In Provident an ex-wife and a widow vied for the proceeds of husband’s life insurance policy. Former wife/beneficiary argued a court Order precluded the beneficiary change to second wife, as requested by husband. In addition to asserting their rights to the proceeds, the claimants filed counterclaims wherein each asserted in the event they were unsuccessful in obtaining the proceeds, the insurer, because of its improper behavior, remained liable to her. The Provident court granted interpleader despite these additional claims. The trial court’s reliance on Provident in support of its ruling is, therefore, misplaced.

Based on the foregoing reasons of law and fact we reverse the trial court’s ruling and grant appellant’s petition for interpleader. That portion of the Order granting Margaret Lewandowski’s petition for consolidation is affirmed.

Order reversed in part and affirmed in part.

Jurisdiction relinquished.

      . Defendant Bankers and Shippers Insurance Company of New York avers it is a nominal party to the proceedings in that the annuity policy which is the subject of this action was purchased from Bankers by INA and, therefore, chose not to file a brief.


source: Caselaw Access Project

author: MONTEMURO, Judge.

license: Public Domain

text:
    608 A.2d 1090
    COMMONWEALTH of Pennsylvania, Appellant, v. John Van Dyke ELLIS, III.
    Superior Court of Pennsylvania.
    Argued April 23, 1992.
    Filed June 2, 1992.

      Stephen B. Harris, Asst. Dist. Atty., Warrington, for The Com., appellant.
    John J. Kerrigan, Jr., Newtown, for appellee.
    Before ROWLEY, President Judge, and MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge.

This is an appeal from an order suppressing the results of a blood test taken from appellee. The only issue on appeal is whether the trial court erred in concluding that the test results should have been suppressed. For the reasons set forth below, we reverse.

On November 11, 1990, at approximately 1:55 a.m., Officer Jones of the Lower Makefield Township Police Department arrived at the scene of a two car accident. Appellee was the driver of one of the cars involved in the accident. Officer Jones investigated the accident and determined that the driver of the other car was under the influence of alcohol. The officer, however, did not suspect that appellee was under the influence of alcohol. The two drivers were transported to the hospital for medical treatment.

At the hospital, Officer Jones requested that the other driver’s blood be drawn and tested regarding alcohol content. Hospital personnel advised the officer that the blood was already tested and that the driver’s blood alcohol content was in excess of .10. Without further inquiry from Officer Jones, the hospital personnel then advised the officer that appellee’s blood had also been tested and that the results indicated that he had a blood alcohol content of .256. Pursuant to this information, charges of driving under the influence were filed against appellee, and a search warrant was issued for appellee’s hospital records.

At the suppression hearing, it was stipulated that the officer did not have probable cause to believe that appellee was driving under the influence until she was informed of appellee’s blood alcohol content by the hospital personnel. It was also stipulated that the blood tests were taken as a result of routine hospital procedure and that they were not ordered by the officer or the police department. Additionally, the parties agreed that the results were volunteered by hospital personnel to the officer, and that the officer did not seek any information regarding the blood content of appellee.

A hearing was held, and on April 22, 1991, the trial court ordered that the blood test results should be suppressed because the Commonwealth did not have probable cause to conduct the search, and because the hospital was acting as an agent of the state when it conducted the blood test. On April 29, 1991, the Commonwealth filed an appeal with this court. Thereafter, the trial court filed an opinion in support of its order. In that opinion, the trial court stated that it believed that it erred in concluding that the evidence should be suppressed. It stated that no state action was involved in securing the blood sample and that therefore, the fourth amendment was not implicated.

The Fourth Amendment to the United States Constitution protects people from unreasonable searches and seizures. The administration of a blood test is a search within the meaning of the Fourth Amendment if it is performed by an agent of the government. Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988). The fourth amendment “proscribes only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317, 321 (1985). To determine whether a search was private, it must be determined whether the individual who conducted the search must be regarded as an instrument or agent of the state. Id. This in turn is determined by looking at the purpose of the search, the party who initiated it, and whether the government acquiesced in it or ratified it. Id.

Here, the parties stipulated that the blood tests were taken at the hospital’s own initiative. The police officer did not request that appellee’s blood be drawn, nor did he seek any information regarding appellee’s blood test. The hospital personnel volunteered the information without any prodding by the officer. Not until the officer was informed of appellee’s high blood alcohol content, did he arrest appellee and subpoena the blood test results. This situation is different from the cases cited by appellee wherein the police requested that a blood test be taken or sought information regarding the test results. In those situations, we have held that state action was involved and that, therefore, before the police could order the search they needed to have probable cause to believe that the driver was operating an automobile while under the influence of alcohol. See Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985), Commonwealth v. Hipp, 380 Pa.Super. 345, 551 A.2d 1086 (1988), and Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013 (1990). However, where, as here, the hospital personnel take the blood test for their own reasons and then freely volunteer the results to a police officer, the fourth amendment is not implicated because the necessary government action is missing. Thus, we find that appellant’s constitutional rights were not violated, and therefore, hold that the blood test results need not be suppressed on these grounds.

Appellee also asserts that his statutory rights to privacy of medical information were violated and that, therefore, even if we were to find that his fourth amendment rights were not violated, we would have to affirm the suppression on the grounds that his statutory rights were violated by the hospital personnel. Appellee argues that when the hospital personnel volunteered the results of his blood test to the police, they violated the regulations of the Pennsylvania Department of Health concerning the confidentiality of medical records. Appellee bases this argument on two Department of Health regulations:

Records and reports of examinations of all specimens shall be confidential.

28 Pa.Code. § 5.53

All records shall be treated as confidential. Only authorized personnel shall have access to the records. The written authorization of the patient shall be presented and then maintained in the original record as authority for release of medical information outside the hospital.

28 Pa.Code § 115.27.

In Commonwealth v. Hipp, supra, we were confronted with a similar question similar to the one here. However, in that case, we determined that the police officer had probable cause to believe that the defendant was intoxicated, and that therefore under 75 Pa.C.S.A. § 1547 and 3755, the officer had the right to receive the blood test results. In the instant case, however, § 1547 and 3755 are inapplicable because, as stated above, the officer did not have probable cause to believe that appellee was intoxicated. Therefore, hospital personnel were not required, nor permitted, to release the results of appellee’s blood test. In so doing, the hospital violated the two regulations of the Department of Health that are set forth above. Thus, the issue for our consideration is whether suppression of evidence is an appropriate remedy where the violation of a Department of Health regulation is committed by a private individual employed by the hospital. We find that it is not.

Initially we note that the primary purpose of the exclusionary rule is to deter unlawful police conduct. Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985). Generally, “it is designed to prevent, not repair and is aimed at official misconduct.” Commonwealth v. Corley, 507 Pa. 540, 491 A.2d 829 (1985). Our courts have consistently held that the rule should not be extended to serve as a remedy for wrongful private conduct. Id. See also Commonwealth v. Mason, supra. Here, as decided above, the hospital personnel's actions in volunteering appellee’s blood results did not constitute state action. For whatever reason, whether it be because the nurse erroneously believed it her duty to inform the officer or simply because the nurse wrongfully chose to volunteer the information, appellee’s rights were violated by a private individual. The police were not part of, nor responsible for, the violation of appellee’s statutory right. Since the wrong was committed by a private individual, the policy behind the exclusionary rule does not require the suppression of the blood test in the instant case.

We also find it important to note that in Pennsylvania, the physician patient privilege does not apply in criminal proceedings. Commonwealth v. Moore, 878 Pa.Super. 379, 548 A.2d 1250 (1988). Although, the regulations regarding the confidentiality of medical records do not provide, as does the statute regulating the physician patient privilege, that they are only applicable in civil cases, we find that the fact that such communications are not protected in criminal cases lends support to the proposition that the medical records regulations regarding confidentiality need not keep out medical records in every criminal case. Both statutes are intended to protect the privacy interests of patients. However, our courts and legislature have determined that, at léast in certain circumstances, this privacy interest must yield to the proper administration of justice. See e.g., Id. (Confidentiality requirements of Disease Prevention Act did not preclude disclosure of rape defendant’s medical records in order to determine whether defendant had gonorrhea at the time of the rape).

Thus, although appellee’s right to confidential medical records was violated, we find that exclusion of the evidence is not the appropriate remedy. The violation was committed by a private individual who was not working as an agent of the state when the violation occurred. There is no reason to believe that suppressing this evidence would deter unlawful police conduct, therefore, suppression is not warranted.

Order reversed.

Case remanded.

Jurisdiction relinquished.

      . In Hipp we held that sections 1547 and 3755 of the Pennsylvania Motor Vehicle Code provide exceptions to the confidentiality requirements for medical records provided for in the Department of Health regulations. These exceptions, allowing for the disclosure of confidential medical records, however, are only applicable when police officers have probable cause to believe that the driver of an automobile involved in an accident was intoxicated.

      . 42 Pa.C.S.A. § 5929 provides:
      No physician shall be allowed, in any civil matter, to disclose any information which he acquired attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity, which shall tend to blacken the character of the patient, without consent of said patient, except in civil matters brought by such patient, for damages on account of personal injuries.


author: CAVANAUGH, Judge:

text:
    608 A.2d 1093
    COMMONWEALTH of Pennsylvania, Appellee, v. John T. MITCHELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 9, 1992.
    Filed June 2, 1992.
    Petition for Allowance of Appeal Denied Oct. 20, 1992.

      Sally A. Prick, Pittsburgh, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before CAVANAUGH, HUDOCK and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

Is appellant, John T. Mitchell’s conviction violative of the constitutional proscription against double jeopardy as recently interpreted by the United States Supreme Court in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)?

Mitchell was observed by a police officer exiting from an overturned vehicle. After being taken to the hospital for treatment, he was discovered to have a blood alcohol level of .331. His driving status at the time was that his operator’s license had been revoked. He was first prosecuted for the charge of operating a vehicle while under suspension (75 Pa.C.S.A. § 1543(a)). Found guilty, he appealed to the Common Pleas Court and was again convicted and fined at a de novo trial. Later, he was found guilty in Common Pleas Court of charges of driving under the influence of alcohol or controlled substance (75 Pa.C.S.A. § 3731(a)(1)). He was given a prison sentence and a fine. His appeal argues that the DUI charge should have been dismissed under double jeopardy principles.

The appropriate inquiry under the Grady v. Corbin, double jeopardy test was recently succinctly stated by Judge Beck writing for a panel of this court:

To determine whether a prosecution is barred by double jeopardy, the first prong of the inquiry requires the application of the Blockburger [v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ] test. Blockburger compares the statutory elements of the charged offenses to determine whether they are either identical or one is a lesser included offense of the other. If each statutory provision requires proof of an additional fact which the other does not, they are not the “same offense” under Blockburger and as such the prosecution survives the initial prong of the inquiry.
The second prong of the inquiry was established in Grady. Even if the offenses would pass muster under the Blockburger test, the Grady Court held that an additional requirement must be met to overcome a double jeopardy challenge. We must determine “[whether] the government, to establish an essential element of an offense charged in [a subsequent] prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady v. Corbin, [495] U.S. at [520], 110 S.Ct. at 2093, 109 L.Ed.2d at 564 (emphasis added) [in Yingling ].

Commonwealth v. Yingling, 407 Pa.Super. 151, 595 A.2d 169, 171 (1991) (footnote omitted).

It is clear that the prosecution is not prohibited under the Blockburger test. Driving while under suspension and DUI obviously involve different fact ingredients so that they are not the “same offense” under Blockburger. Here, however, appellant argues under Grady that both offenses include the element of “driving” or being in physical control of a vehicle i.e., driving under suspension and DUI. We do not agree since driving may be a factor in a large number of offenses. It, in itself, is not a crime and, as a factor in successively charged offenses, is not “conduct that constitutes an offense that has already been prosecuted.”

We believe this argument was well answered in Yingling where the court defined “conduct” under the Grady test:

In our view, appellant overlooks an indispensable aspect of the double jeopardy analysis. In order to constitute the “same offense” for double jeopardy purposes, the “conduct” used to establish an essential element of the subsequent charge, must be conduct for which the defendant was convicted in the first prosecution. In the instant case, the mere consumption of alcohol was not the conduct that constituted the previous offense; indeed, such conduct does not constitute an offense at all. In the first prosecution Yingling was not prosecuted for or convicted of consuming alcohol. Without the additional and key element of being underage, the conduct upon which appellant relies would not be a crime for which appellant previously could have been in jeopardy. The status of being underage is an integral aspect of the conduct for which appellant was convicted in the previous prosecution. It cannot be severed from the offense without rendering it meaningless.

Yingling, 407 Pa.Super. 151, 595 A.2d 169, 171 (1991) (emphasis in original).

Here, of course, the first offense included conduct which involved driving while under suspension, and proof of this offense is not an element of proof in the charge of driving under the influence of alcohol which has nothing to do with appellant’s status as a currently licensed operator of a motor vehicle.

Appellant’s having failed to establish that his rights under the double jeopardy clause of the constitution were in any way violated, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Given the inexactitude of the second part of the Grady rule which has expanded double jeopardy rights, it is not surprising that this decision has result in a significant number of appeals raising Grady arguments. See Commonwealth v. Labelle, 397 Pa.Super. 179, 579 A.2d 1315 (1990), allocatur granted, 527 Pa. 623, 592 A.2d 43 (1991); Matter of Huff, 399 Pa.Super. 574, 582 A.2d 1093 (1990); Common

        wealth v. Yingling, 407 Pa.Super. 151, 595 A.2d 169 (1991); Commonwealth v. Kline, 405 Pa.Super. 412, 592 A.2d 730 (1991); Commonwealth v. Adams, 406 Pa.Super. 493, 594 A.2d 727 (1991); Commonwealth v. Butt, 406 Pa.Super. 526, 594 A.2d 743 (1991). In the Supreme Court Grady was decided by a bare majority in an opinion written by Justice Brennan. Justice O’Connor filed a dissenting opinion and Justice Scalia also wrote a dissent in which Chief Justice Rehnquist and Justice Kennedy joined.


author: KELLY, Judge.

text:
    608 A.2d 1095
    COMMONWEALTH of Pennsylvania v. Eric EPPS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed June 18, 1992.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, BECK and KELLY, JJ.
   KELLY, Judge.

In this appeal we are called upon to determine the constitutionality of a police officer’s decision to stop a car solely because of a broken vent window. We find such a decision constitutionally permissible and affirm.

The relevant facts and procedural history giving rise to this appeal are extraordinarily easy to summarize. Appellant and an accomplice smashed the rear vent window of a car which they then “hot wired” and stole. Shortly thereafter, the two were stopped in the vehicle by a police officer who had noticed the broken window of the car as appellant and his co-conspirator drove it past him. Appellant was arrested and charged with receiving stolen property, theft by unlawful taking, unauthorized use of an automobile, and criminal conspiracy. A motion to suppress was filed and denied. Appellant was convicted of all counts. Post trial motions were filed and denied. This timely appeal followed.

On appeal, appellant does not challenge the fairness of his trial. Nor does he suggest that the police were without probable cause to arrest him. Rather, appellant rests the success of his appeal exclusively on his contention that the police were without justification to pull him over. He argues that evidence of a broken vent window was not sufficiently indicative of his crime, and thus, police were without cause to stop him. Unfortunately for appellant, we do not agree.

At the outset, we note that although the factual context from which this appeal stems is novel, the applicable law is not. It is well settled that to justify their decision to stop and briefly detain appellant, the police need not establish their suspicions to a level of certainty, a preponderance, or even a fair probability. The suspect’s expectation of privacy is not sufficiently infringed by the minimal intrusion attendant to an investigatory stop as to require any more than a reasonable suspicion that criminal activity was afoot. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Though not tantamount to a “hunch,” the requisite quantum of suspicion necessary to conduct an investigatory stop is a level “obviously less demanding than for probable cause.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 308 (1990) {quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989)).

In reviewing whether reasonable suspicion (or probable cause) exists, we must, of course, examine the totality of the circumstances to determine whether there exists a particularized and objective basis for suspecting an individual stopped of criminal activity. Florida v. Bostick, 501 U.S. -, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075 (1991). By this, the United States Supreme Court has clarified, it is meant that,

First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objec-. tive observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person.
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.
The second element contained in the idea that an assessment of the whole picture may yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.

United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981) (emphasis added, citations omitted).

Here, the officer who stopped appellant was not acting on merely a “hunch.” Instead, he testified that he stopped the stolen car appellant was driving because he had noticed the broken vent window and knew from his experience in investigating automobile theft that entry to such stolen automobiles is routinely gained by breaking into one of the vent windows, rather than one of the larger, more conspicuous windows of the car. This was an articulable, particularized suspicion, based on objective physical evidence and a trained officer’s reasonable inferences therefrom, that a specific crime, i.e. auto theft, was being committed by a specific person, i.e. appellant. See United States v. Cortez, supra.

Moreover, it is incumbent upon us to recognize and account for the fluid nature of events as they were perceived by the officers at the time. See United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575-76, 84 L.Ed.2d 605, 615-16 (1985) (a court assessing the validity of a Terry stop should consider whether the officers were acting in a quickly developing situation); Commonwealth v. White, 358 Pa.Super. 120, 128, 516 A.2d 1211, 1215 (1986) (same); Commonwealth v. Mayo, 344 Pa.Super. 336, 496 A.2d 824 (1985) (same). We must also consider, therefore, the inherent exigencies involved in seizing thieves, where as here, the “get-away” car is both the instrumentality and the object of the crime.

We conclude, therefore, that the broken rear vent window, as understood by those versed in the field of law enforcement, constituted sufficient grounds to give rise to reasonable suspicion herein. The exigent circumstances would have forgiven no delay in investigation. It was thus both prudent and constitutionally permissible for the officer in this case to conduct a brief and minimally intrusive investigatory stop for the purpose of dispelling or confirming his reasonable suspicion that the crime of auto theft was in progress. Had the officer approached appellant and the car only to learn of innocuous reasons for the broken window, the appellant may well have been free to leave. Such was not the case. To the contrary, the officer’s suspicions were confirmed here when, upon approaching the vehicle, the officer observed unmistakable evidence that appellant had actually stolen the car. For us to hold that the fruit of the officer’s prudence must be ignored by agreeing with appellant that an officer must simply allow the driver of a vehicle such as that herein to pass unhindered in the face of such tell-tale evidence of crime, would require this Court to ignore as well as the experience of the officers and the realities of our criminal world. This we cannot do. See United States v. Cortez, supra.

We note that appellant’s reliance on Commonwealth v. Edwards, 355 Pa.Super. 311, 513 A.2d 445 (1986), is misplaced. There, this Court was presented with the question uf whether an officer had reasonable suspicion to stop a vehicle which betrayed evidence of “fresh” damage. In rejecting the Commonwealth’s argument that the officer reasonably suspected from the damage that the car might have been in an accident which was unlawfully not reported, the Honorable Judge Brosky cogently reasoned that

The conclusion that appellant violated the Motor Vehicle Code only follows from the articulated fact of the fresh damage to the car 2/the damage to the car was caused of a type required by the Motor Vehicle Code to be reported and if appellant did not report the accident.
While [75 Pa.C.S.] §§ 3744-3746 do require many types of vehicular accidents to be reported to the police, there are certainly a myriad of ways an automobile could sustain even severe body damage which would not require notification of the police. Owners can damage their cars in their driveways or garages or their cars can be struck while parked in lots or on the street. In such cases and, indeed, in any case of an accident which does not involve damage to another’s vehicle or property or injury or death, §§ 3744-3746 create no duty to report the accident to the police. Thus, vehicle stops based solely on the presence of fresh damage to the cars would include such a number of presumably innocent persons as to approach the type of subjectively administered, random basis for stopping vehicles and interrogating drivers that is prohibited by the Fourth Amendment.
Even assuming that a reasonably sufficient number of cars with fresh damages will have been in accidents requiring notification of the police, motorists involved in such accidents do not violate the Motor Vehicle Code unless they fail to report such accidents. While it logically follows that a driver has to have been in an accident in order to have not reported it, we hardly believe that the mere occurrence of an accident supports a reasonable suspicion that the driver failed to report the accident. Thus, given the at best tenuous relationship between the presence of fresh damage to a car and a conclusion that an accident required to be reported has occurred and the near absence of any relationship between such damage and a conclusion that the driver did not report an accident required to be reported, we hold that the damage to the car driven by appellant did not reasonably warrant the intrusion of an investigatory stop.

Commonwealth v. Edwards, supra, 355 Pa.Superior Ct. at 314-317, 513 A.2d at 447-48 (footnotes omitted, emphasis added).

Edwards is inapposite herein; the Commonwealth aptly explains why:

Here, unlike Edwards, there is no such attenuation between the officer’s observations and the suspected crime. Damage to a point of entry on a vehicle, unlike general body damage, is inherently suspicious. Moreover, the officer testified that, in his experience, car thieves routinely break into cars through the vent window. Indeed, when damage is to a vent window—the smallest and, therefore, least likely window to be accidentally broken— an inference arises that it was purposely and surreptitiously broken. Thus, there is a direct connection between the specific damage observed and the specific crime suspected.

Commonwealth’s Brief at 7-8. With this reasoning, we agree, and adopt it as our own.

Accordingly, we hold that where, as here, police observe damage to only the vent window of a passing vehicle, and testify that such peculiar damage is consistent with evidence of auto theft, reasonable suspicion arises to justify the stop of that vehicle. Appellant’s sole argument on appeal, therefore, fails.

Judgment of sentence Affirmed.

      . We note that when reviewing the evidence in this appeal, we must limit our inquiry to a determination of whether the findings of the suppression court are supported in the record. See Commonwealth v. Blassingale, 398 Pa.Super. 379, 581 A.2d .183 (1990); Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). In making this determination we are constrained to consider only the evidence presented by the Commonwealth and such evidence of appellant which is uncontradicted. See id.

      . That such evidence was only circumstantial, and not direct, is not crucial to this appeal since appellant has not challenged his conviction, but merely the stop. Circumstantial evidence far less particularized than this has previously served as sufficient evidence to constitute reasonable suspicion. See Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985) (holding that the barking dogs near an individual wandering the streets on a cold, snowy February morning sufficed to show reasonable suspicion). What is important is that a reasonably strong logical nexus between the evidence seen and the crime suspected was established.

        . It may be argued, as the Commonwealth herein maintains, that the operation of a motor vehicle with a broken vent window is itself a violation of the Motor Vehicle Code. See 75 Pa.C.S.A. § 4526 ("it is unlawful ... to operate ... any. vehicle ... unless the vehicle is equipped with safety glass or similar material ... wherever transparent or translucent material is used in the vehicle in doors, windows, windshield and wings.’’). If this were correct, of course, no more would be necessary to stop or further detain a motorist. However, as our disposition regarding reasonable suspicion renders it unnecessary for this Court to consider in this appeal the question of whether operation of a motor vehicle without a vent window is a crime, we express no opinion in this regard.

      . The officer testified that the steering column was broken and had a small, irregularly shaped key dangling from it, consistent with damage done to a vehicle in the process of stealing it. Moreover, appellant was unable to produce any proof of ownership. Indeed, shortly thereafter, the car was reported stolen by the owner who testified at trial as to its theft.


author: ROWLEY, President Judge.

text:
    609 A.2d 171
    DARRT DEVELOPMENT COMPANY v. TRI-STATE ASPHALT CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1991.
    Filed May 5, 1992.
    Reargument Denied July 14, 1992.

      Robert L. Ceisler, Washington, for appellant.
    George Retos, Jr., Washington, for appellee.
    Before ROWLEY, President Judge, and KELLY and CERCONE, JJ.
   ROWLEY, President Judge.

Appellee Darrt Development Company (“Darrt”) is the owner of property in Washington County, Pennsylvania. Pursuant to an agreement dated December 3, 1986, appellant Tri-State Asphalt Corporation (“Tri-State”) leased the property from Darrt with the intention of establishing an asphalt plant on the property. During the following year disputes arose concerning several provisions of the lease agreement. Those disputes have led to the present appeal.

To understand the appeal before us, it is necessary to examine the procedural history of the case. On December 11, 1987, Darrt filed a complaint in ejectment in which it asserted that Tri-State had paid no rent and refused to surrender possession of the property. Darrt demanded possession of the property and damages in the amount of the unpaid rent, which was then $7,500.00, as well as interest and costs. Tri-State’s answer was accompanied by new matter and a counterclaim in which Tri-State demanded reimbursement in the amount of $4,707.50 for a survey and legal description of the property that it had obtained after Darrt allegedly breached its oral promise to provide those items. In an amended counterclaim Tri-State added a demand for damages resulting from Darrt’s alleged failure to grant to Tri-State a right of way for the installation and maintenance of utility lines.

On April 6,1990, following a non-jury trial, the Honorable John F. Bell entered an order 1) directing Tri-State to vacate the property no later than June 1, 1990, 2) directing Tri-State to pay all rents due from March 1, 1987, to the date of final removal, plus interest, 3) directing Darrt to pay to Tri-State the amount of $2,353.75, representing one-half of the survey fee paid by Tri-State, and 4) finding for Darrt and against Tri-State on the latter’s counterclaim for costs and expenses concerning the alleged right of way. TriState filed exceptions to the order. In an order entered July 9,1990, the trial court dismissed Tri-State’s exceptions and affirmed its earlier order.

In this timely appeal of the order of July 9, 1990, TriState raises four issues, which will be addressed seriatim. Concluding, after careful review, that none of Tri-State’s issues warrants relief, we affirm the order of the trial court.

In its first issue, Tri-State challenges the trial court’s finding that Tri-State was in default of the lease agreement as a result of not paying rent to Darrt. At issue is the following provision of the lease agreement:

Said lease shall commence one (1) month after all necessary permits from the E.P.A. and local government agencies are received granting approval to operate an asphalt and/or concrete plant upon the demised premises. The initial lease term shall run for one (1) year beginning on the first day of the month following said approval to operate____
In consideration hereof, Lessee promises and agrees to pay Lessor as rent ... the sum of Nine Thousand Dollars ($9,000.00) per year, in twelve (12) equal monthly installments of Seven Hundred Fifty Dollars ($750.00) per month, payable on the 1st day of each month beginning on the 1st day of the month after all necessary permits are received____

Lease Agreement, Article 2. The difficulty in interpreting this provision arises from the fact that two types of asphalt plants are involved: 1) a temporary, “Barber/Greene” plant and 2) a permanent, “H & B” plant. Tri-State obtained the necessary permits to operate a temporary plant on February 4, 1987; therefore, Darrt argues, Tri-State’s obligation to pay rent to Darrt began on March 1, 1987. Because the permits needed to operate a permanent plant were not received until October 26, 1987, however, Tri-State contends that its obligation to pay rent did not begin until November 1, 1987.

The lease agreement does not define the term “asphalt and/or concrete plant.” The trial court construed the agreement against its drafter, Tri-State, and concluded that because all permits necessary for the operation of an asphalt plant were received by February of 1987, Tri-State was in default for failing to pay rent beginning in March of 1987. Having considered the arguments of the parties in light of the relevant case law, we conclude that the trial court has correctly discussed and decided this issue in its opinion of April 6, 1990.

The second prong of Tri-State’s argument on this issue is the claim that its exercise of an option to buy the property terminated its obligation to pay rent. The option to buy is set forth in Article 20 of the lease agreement, which reads as follows:

Lessor hereby grants to Lessee the right and option to purchase the real property described in Appendix A and the appurtenances and fixtures attached thereto and all rights of way ..., on or after January 1, 1987, for Seventy Five Thousand Dollars ($75,000.00), on the condition that Lessee shall give one (1) month notice in writing of its intention to exercise this option to Lessor; that this Lease shall not have been previously terminated; and that Lessee has observed and complied with the terms and conditions of this Lease required of Lessee up to the time of the exercise of that option and the payment of the purchase price therefore in the manner provided. Lessor shall convey the demised premises by General Warranty Deed— The Deed shall be accompanied by an abstract of title showing a good and unencumbered title passing under and by the resulting conveyance. On the delivery of the above described Deed and abstract of title this Lease shall become void.
The sale price of $75,000.00 is based on the demised premises containing approximately three (3) acres, more or less. A variance of 10% shall apply to the acreage. The price is determined to be $25,000.00 per acre.

Lease Agreement, Article 20. Tri-State asserts that in a letter dated July 27, 1987, it informed Darrt of its intention to exercise its option to purchase the property and that Darrt responded with a letter dated August 3, 1987, in which it acknowledged the exercise of the option. When it exercised the option to purchase, Tri-State argues, the landlord-tenant relationship terminated, and with it the obligation to pay rent.

Our case law holds that when a lessee of real property exercises an option to purchase that is contained in the lease, the parties’ relationship as landlord and tenant ceases to exist and the lease is converted into a contract of sale. Philadelphia Housing Authority v. Barbour, 405 Pa.Super. 140,146, 592 A.2d 47, 50 (1991) [citing Detwiler v. Capone, 357 Pa. 495, 55 A.2d 380 (1947)]. We conclude, however, that no such conversion occurred in the present case. Although Tri-State now relies upon the principle of law just cited, Article 20 of the parties’ agreement states that the lease shall become void upon delivery of the deed and abstract of title. Where the words of a contract are clear and unambiguous, as in the present case, the intent of the parties is to be found in the express language of the contract. Marcinak v. Southeastern Greene School District, 375 Pa.Super. 486, 492, 544 A.2d 1025, 1027 (1988). By their choice of language, therefore, the parties have agreed that the lease shall not terminate upon Tri-State’s exercise of the option to buy, but shall instead continue in effect until Darrt delivers the deed and abstract of title to Tri-State.

Moreover, Article 20 states that the lessee has the right and option to purchase the property on the condition that “Lessee has observed and complied with the terms and conditions of this Lease required of Lessee up to the time of the exercise of that option____” We have already held that Tri-State, at the time it allegedly exercised the option to buy, was in default, having failed to meet its obligation to pay rent beginning on March 1, 1987. Accordingly, as TriState did not meet all of the conditions specified in Article 20 for a valid exercise of the option to purchase, Tri-State’s argument is without merit.

In its second issue, Tri-State contends that the trial court erred in denying the request, made by Tri-State in its counterclaim, that Darrt reimburse Tri-State for costs and expenses allegedly incurred as a result of Darrt’s failure to grant to Tri-State a right of way to obtain access to electrical power. Article 21 of the lease provides as follows:

Lessor hereby grants to Lessee a right of way or rights of way over and across the remaining property owned and/or leased by Lessor for the purpose of installing and maintaining utility lines and/or service necessary for this property if Lessee so desires. The location of said rights of way shall be mutually agreed upon by the Lessor and Lessee.

Tri-State contends that the parties reached an agreement concerning the right of way but that Darrt, in violation of the lease agreement, then attempted to set a price on TriState’s use of the right of way.

Our review of the evidence of record does not indicate that Darrt “intentionally denied [Tri-State] access to power” (Brief for Appellant at 16-17), but rather that the parties were unable to reach a complete agreement on the matter. The record indicates that Darrt was willing to grant Tri-State an easement and right of way for a nominal consideration but, sincé Tri-State would be tapping into the substation on Darrt’s property, that Darrt also sought a monthly payment in return for Tri-State’s use of the electrical meters and equipment; the parties could not agree on the amount of such payment. We conclude, therefore, that the trial court properly found for Darrt and against TriState on the latter’s counterclaim.

Tri-State’s next issue concerns the following aspect of the trial court’s decision:

Regarding the claim for survey fees, the court finds [that Darrt] had orally agreed to provide [Tri-State] with a survey and legal description of the subject premises. Since [Tri-State] had expended monies to obtain said description for the benefit of both parties, the court finds [Darrt] liable to [Tri-State] for one-half of said fee. See plaintiff’s [Darrt’s] Exhibit 15.

Trial Court Opinion at 8. The survey fee was $4,707.50; the amount awarded to Tri-State, therefore, was $2,353.75. Plaintiff’s Exhibit 15 is a letter dated August 3, 1987, from Darrt to Tri-State, which reads in pertinent part as follows:

As to the reimbursement of costs incurred to obtain a survey and legal description, [Darrt] feels this information is incorrect. In preliminary discussions with TriState ..., it was stated that a survey and legal description was too costly for [Darrt] and if Tri-State wished to obtain one it would be at their own expense.
Since you have taken the option to buy, [Darrt] will agree to pay one-half (V2) of the survey charges, $2,353.75, as it will be beneficial to both parties.

The trial court’s ruling is in accord with Plaintiff’s Exhibit 15, and Tri-State does not refer us to any evidence showing that in fact Darrt agreed to pay the entire cost of the survey. Accordingly, this claim does not entitle Tri-State to relief.

In its final issue, Tri-State contends that the trial court abused its discretion in granting the “harsh remedy” (Brief for Appellant at 20) of ejectment. Article 11 of the lease agreement provides in pertinent part as follows:

Lessee agrees that if the rent reserved by this Lease, or any part, therof [sic], shall be unpaid when due, or Lessee shall fail to perform any of the covenants, conditions, provisions and agreements herein contained, ... Lessor may recover and resume possession of the leased premises by force or otherwise, without being liable for prosecution therefor.

Having reviewed the evidence pertaining to this issue, we agree with the trial court that “the plant at issue is not so ‘fixed’ that removal of it would be unwarranted” (Trial Court Opinion at 8). Accordingly, Tri-State’s claim that such a remedy is inequitable is without merit.

Order affirmed.

      . Although the trial court did not address this provision of the lease, we may affirm the decision of the trial court if it is correct for any reason. Daniel Adams Associates v. Rimbach Publishing, Inc., 360 Pa.Super. 72, 85 n. 3, 519 A.2d 997, 1003 n. 3 (1987), alloc. denied, 517 Pa. 597, 599, 535 A.2d 1056, 1057 (1987).

      . Tri-State also argues that "to be consistent, the [trial] court, in finding that survey charges were owed, should logically have found that the option agreement was exercised” (Brief for Appellant at 19). In light of our resolution of Tri-State’s first issue, we are not required to determine whether the parties’ course of conduct, but for TriState’s default, would have evidenced a valid exercise of the option to buy.
      In its argument on this issue, Darrt asserts that "the [trial] Court erred when it determined that [Darrt] was responsible for one-half of the survey fees and this honorable Court should respectfully reverse the [trial] Court’s finding and remand this issue ... for a determination consistent with [Darrt’s] argument" (Brief for Appellee at 18). Because Darrt has not filed a cross-appeal, this issue is not properly before us. Arcidiacono v. Timeless Towns of the Americas, Inc., 363 Pa.Super. 528, 531 n. 2, 526 A.2d 804, 806 n. 2 (1987).


text:
    609 A.2d 175
    COMMONWEALTH of Pennsylvania v. Donald Joseph KELLY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1991.
    Filed May 12, 1992.
    Reargument Denied July 15, 1992.
    Thomas A. Crawford, Jr., Pittsburgh, for appellant.
    Christian A. Fisanick, Asst. Dist. Atty., Bamesboro, for Com.

      Before ROWLEY, President Judge, and KELLY and CERCONE, JJ.
   ROWLEY, President Judge.

In this appeal from the judgment of sentence entered in the Court of Common Pleas of Cambria County, Donald Joseph Kelly raises fifteen issues, one of which we will address, namely, whether he is entitled to a new trial because a member of his jury was a convicted felon and therefore statutorily disqualified to serve as a juror. After reviewing the applicable statutory and case law, we must vacate the judgment of sentence and remand the case for a new trial.

Appellant was charged with first-degree murder for the shooting death of his ex-girlfriend’s new boyfriend. During voir dire, each prospective juror completed a questionnaire, under oath. One of the questions asked was whether the prospective juror had ever been convicted of a crime. Mr. William Thomas, Jr., one of appellant’s jurors, answered this question in the negative. However, it was subsequently learned that Mr. Thomas had two convictions for crimes punishable by more than one year imprisonment, which rendered him unqualified to serve as a juror under Pennsylvania law.

At the post-trial hearing, Mr. Thomas was called to testify. He stated that although he had been convicted of crimes in the past, he did not lie on the questionnaire. Mr. Thomas explained the inconsistency in the following manner: “See, this has been quite a few years back.[] Since that time I had joined the church and became a citizen of Christ. Now, you know, all your sins are forgiven when you ask for them, so I didn’t consider this as—I didn’t have any regrets about saying no, because ... my sins was [sic] forgiven.” Hearing Transcript, 7/6/90, at 6 (footnote added). Mr. Thomas further stated that he had answered “no” to the same question on job applications, including one with Federal Armored Express, and that during the course of a background check, his criminal record had not been discovered.

After the post-trial hearing, the trial court determined that appellant was not entitled to a new trial. For the following reasons, we disagree.

The legislature has provided the following criteria for juror qualifications:

Every citizen of this Commonwealth who is of the required minimum age for voting for State or local officials and who resides in the county shall be qualified to serve as a juror therein unless such citizen:
(3) has been convicted of a crime punishable by imprisonment for more than one year and has not been granted a pardon or amnesty therefor.

42 Pa.C.S. § 4502. Clearly, under Pennsylvania statutory law, Mr. Thomas was unqualified to be a juror. We therefore must determine whether Mr. Thomas’s presence on the jury is grounds for reversal.

In its opinion, the trial court cited the case of Commonwealth v. Aljoe, 420 Pa. 198, 216 A.2d 50 (1966), for the proposition that a challenge to the qualifications of a juror cannot successfully be asserted after the jury is sworn, unless the juror intentionally misleads or deceives the defendant. The trial court further determined that because Mr. Thomas’s qualifications were not challenged until after the trial, the relevant question was whether he intentionally misled or deceived appellant. Answering this question in the negative, the court found that because Mr. Thomas “explained that all of his sins had been forgiven thirty years ago when he became a Born Again Christianf,] ... [he] believes he answered the jury questionnaire truthfully—he did not intend to mislead or deceive the defendant.” Trial Court Opinion, 4/15/91, at 12. The trial court also held that because appellant did not show that he was prejudiced by Mr. Thomas’s service, the error was harmless.

In Aljoe, the applicable statutory provision relating to the qualifications of jurors required only that jurors be sober, intelligent, and judicious persons. Therefore, the Supreme Court in Aljoe determined that the misdemeanor conviction of the challenged juror did not cause him to be ineligible for jury service under the statutory or decisional law of the state. In the present case, however, Mr. Thomas was statutorily disqualified to be a juror. Therefore, Aljoe is not controlling in the present case.

Even if Aljoe were controlling in this case, our disposition would not be altered. The intent to mislead test has been applied where defense counsel has failed to ask the relevant questions, or defense counsel asked ambiguous questions. See Commonwealth v. Dombek, 268 Pa. 262, 110 A. 532 (1920); Commonwealth v. Didyoung, 369 Pa.Super. 346, 535 A.2d 192 (1988); Commonwealth v. Stark, 363 Pa.Super. 356, 526 A.2d 383 (1987), allocatur denied, 517 Pa. 622, 538 A.2d 876 (1988). Under these circumstances, defendants were not entitled to relief, because the jurors did not intentionally mislead them, but rather, had no cause to provide the information, because the question was not asked or because the jurors did not understand an ambiguous question.

In the present case, the unambiguous question was asked, and Mr. Thomas, with full understanding of the meaning of the question, answered it falsely. Although the trial court’s factual finding that Mr. Thomas did not intend to mislead or deceive is entitled to deference, “have you ever been convicted of a crime?” is not a subjective question. Mr. Thomas knew that he had been convicted of crimes and answered the question falsely. Mr. Thomas’s belief that he has been forgiven for his sins does not alter the fact that he had been convicted of crimes. His belief that the absolution of his sins somehow expunged his criminal record was not reasonable and will not defeat appellant’s claim for relief.

Finally, we do not agree that appellant must show prejudice in order to be eligible for relief. Recently our Supreme Court held that where the prosecutor in a criminal case is affected by a conflict of interest, the defendant need not prove actual prejudice in order to have the conflict removed. Commonwealth v. Eskridge, 529 Pa. 387, 604 A.2d 700 (1992). The Court reasoned that “any prejudice suffered by a defendant due to such a conflict would not normally be susceptible to proof.” Id., 529 Pa. at-, 604 A.2d at 702.

Similarly, we believe that it would be virtually impossible for a criminal defendant to prove that a juror’s prior conviction prejudiced his trial. The potential for prejudice is apparent, however, and the legislature has disqualified those persons who are presumptively unable to render fair and competent service. Because appellant has shown that an unqualified person served on the jury which convicted him, and because any prejudice suffered by appellant would not be susceptible to proof, we conclude that appellant need not prove actual prejudice before a new trial will be granted.

For the above reasons, we conclude that the trial court erred in denying appellant’s motion for a new trial. We therefore vacate the judgment of sentence and remand for a new trial.

Judgment of sentence vacated and case remanded for a new trial. Jurisdiction is relinquished.

      . Mr. Thomas was convicted of burglary in 1947 and entered guilty pleas to charges of aggravated assault and battery in 1956.


author: JOHNSON, Judge:

text:
    609 A.2d 177
    COMMONWEALTH of Pennsylvania v. Benjamin LOPEZ, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 4, 1992.
    Filed May 14, 1992.
    Reargument Denied July 14, 1992.

      Elliott J. Segel, Erie, for appellant.
    William R. Cunningham, Dist. Atty., Erie, for Com., appellee.
    Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
   JOHNSON, Judge:

This is an appeal from the judgment of sentence imposed after a jury convicted Benjamin Lopez, Jr. of Possession With Intent to Deliver Marijuana in violation of 85 Pa.C.S. § 780-113(a)(30). After post trial motions were denied, the court sentenced Lopez to five to ten years’ imprisonment. On appeal, Lopez contests solely the denial of his Motion to Suppress seventy-six pounds of marijuana, seized from his vehicle by police, following a routine traffic stop. He argues that his right, protected by the Fourth Amendment and the Pennsylvania Constitution, Article I, Section 8, to be free from unreasonable searches and seizures was violated. We agree and reverse.

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Vinson, 361 Pa.Super. 526, 522 A.2d 1155 (1987). If the suppression court held for the prosecution, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Id. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse if there is an error in the legal conclusions drawn from those factual findings. Commonwealth v. Reddix, 355 Pa.Super. 514, 513 A.2d 1041 (1986).

The relevant facts in this case are not in dispute, and, after careful review, we are satisfied that the suppression court’s factual findings, as they appear in its Opinion of November 1, 1989, are supported by the record. However, we are compelled to note several important omissions from the suppression court’s summary of the salient facts regarding Corporal Martin’s reasons for suspecting Lopez of drug related activity.

On the afternoon of July 13, 1989, Benjamin Lopez was driving a Ryder rental truck towing a Volkswagen automobile on Interstate 90 in Erie County. His wife, Yvonne, and his four year old child were passengers. Corporal Robert Martin of the Pennsylvania State Police noticed the tow chains between the Ryder truck and the Volkswagen were not crossed as required by § 4905(d) of the Pennsylvania Vehicle Code, and signalled Lopez to pull over.

After the stop, upon request, Lopez produced his driver’s license, vehicle registration and the rental agreement for the truck, which revealed that the truck had been rented in Carlsbad, New Mexico with a destination of Glen Falls, New York. Upon concluding that the papers were in order, Corporal Martin did not return them to Lopez but, instead asked Lopez to exit the vehicle and walk to its rear.

After showing Lopez the towing violation, Corporal Martin proceeded to question Lopez regarding the origin, destination, purpose, and duration of his trip from New Mexico. While retaining the license and rental agreement, Corporal Martin asked Lopez “[W]ould you mind letting me look into the back of the truck?” Preliminary Hearing Transcript, August 2, 1989, at 7; R.R. at 7A. Lopez did not object, opened the lock and pulled up the door. Corporal Martin observed that the truck was empty except for several blankets, some children’s toys and two suitcases. He then asked Lopez about the ownership and destination of the Volkswagen automobile; Lopez responded that he was delivering it to his brother.

Corporal Martin then told Lopez to sit in the Ryder truck while he radioed for assistance. When Trooper William Wagner, also of the Pennsylvania State Police, arrived, Corporal Martin asked Lopez if he had any drugs, weapons or alcohol in the vehicles, to which Lopez responded “no.” Nonetheless, Corporal Martin asked Lopez if he would “consider signing a voluntary consent form to let [them] search the vehicles?” Id. at 8; R.R. at 8A. Lopez agreed and signed a consent form which was provided to him by Trooper Wagner.

After Lopez signed the form, Corporal Martin instructed one of the other troopers, who had arrived on the scene, to conduct a canine search of the Volkswagen. During the search, Lopez and his wife were asked to stand behind the guardrails, alongside the thruway, for their protection. The search revealed a cache, containing approximately seventy-six pounds of marijuana, in a compartment located behind the back seat of the Volkswagen. Lopez was then patted down, handcuffed and placed inside a patrol vehicle where he was given his Miranda warnings. Yvonne Lopez was not searched or arrested at the scene. She was, however, subsequently arrested at the state police barracks, after the officers conferred with the District Attorney’s Office.

Lopez filed a motion to suppress, and on October 31, 1989, a suppression hearing was held before the Court of Common Pleas of Erie County. The Commonwealth submitted, as evidence of their burden of proof, the transcript of the preliminary hearing held in this matter on August 2, 1989, at which both Corporal Martin and Trooper Wagner testified. At the preliminary hearing, Corporal Martin was questioned regarding the reasons for suspecting Lopez of drug related activity:

DEFENSE COUNSEL: There wasn’t any—well, when you looked inside the rental and you are speaking to Mr. Lopez and explaining why you stopped him and so on, you didn’t personally observe anything inside the field of your observation inside that rental truck, any objects or any conduct by any individuals inside which would lead you to believe there was suspicion for criminal activity or anything of that nature, did you?
CPL. MARTIN: No.
DEFENSE COUNSEL: And after you showed him the chains and explained to him that they are supposed to be crossed, and the reason for the stop, that’s when you had this conversation with him about “Where are you going? Where is your destination?” And so forth?
CPL. MARTIN: Yes.
DEFENSE COUNSEL: What was the purpose of asking him these other questions, as far as where he was going and who he was moving and if he was moving and so on? What was the purpose at that time in asking those type of questions of Mr. Lopez?
CPL. MARTIN: Just policeman’s intuition. Just you know, investigative talking to the gentleman.

Preliminary Hearing Transcript, August 2, 1989, at pp. 16-18; R.R. at 16A-18A.

At the conclusion of the suppression hearing, the court determined that neither the initial stop of Lopez’s vehicle, nor Corporal Martin’s request that Lopez exit his vehicle were violative of the Fourth Amendment. The court also determined that the subsequent detention and questioning of Lopez was reasonable, that his consent to the search of the Volkswagen was “voluntary and knowing,” and that the subsequent related search was lawful. In determining whether the suppression court erred in its legal conclusions, we will address the constitutionality of each increment of the confrontation separately, as if each was a separate and distinct “non-custodial detention,” i.e. 1) the initial stop of Lopez for a traffic violation; 2) the request for Lopez to get out of his vehicle; 3) the subsequent detention and questioning of Lopez; and 4) his consent to search the Volkswagen.

A noncustodial detention or forcible stop occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. Commonwealth v. Brown, 388 Pa.Super. 187, 190, 565 A.2d 177, 178 (1989). See also Commonwealth v. Williams, 287 Pa.Super. 19, 22, 429 A.2d 698, 700 (1981). A forcible stop constitutes a seizure of a person and thus, activates the protections of the Fourth Amendment and the requirements of Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, 903 (1968); Commonwealth v. Brown, supra, 388 Pa.Super. at 190, 565 A.2d at 178.

In order for a stop to be reasonable under the Fourth Amendment of the United States Constitution, the police must have articulable and reasonable grounds to suspect, or probable cause to believe, that criminal activity may be afoot. Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973); Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975). This standard is met “if the police officer’s reasonable and articulable belief that criminal activity was afoot [is] linked with his observation of suspicious or irregular behavior on behalf of the particular defendant stopped.” Commonwealth v. Espada, 364 Pa.Super. 604, 609, 528 A.2d 968, 970 (1987).

First, it is uncontested that Corporal Martin stopped Lopez because he had articulable and reasonable grounds to suspect, or probable cause to believe, that a provision of the Vehicle Code was being violated. Such a stop was clearly permissible under 75 Pa.C.S. § 6308; Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988), appeal denied in 521 Pa. 617, 557 A.2d 721 (1989).

Lopez contends, however, that after he was stopped, Corporal Martin was without legal basis to order him to get out of the Ryder truck, absent a specific reason to believe that he was either armed and dangerous or that criminal activity was afoot. We disagree.

The United States Supreme Court addressed this issue in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Focusing on the reasonableness in the circumstances of the officer’s request for the driver to get out of the vehicle, the Mimms court held that, out of concern for the safety of police officers, an officer may, consistent with the Fourth Amendment guarantee against unreasonable searches and seizures, order a driver from a vehicle, even though the officer has no basis to suspect the driver of foul play. Consequently, although Corporal Martin did not have an articulable basis to believe that Lopez was armed and dangerous or that criminal activity was afoot, we find, in accord with Mimms, that because Corporal Martin had effectuated a valid traffic stop, his request that Lopez exit the vehicle so that he could explain the traffic code violation did not violate the Fourth Amendment.

Next, Lopez challenges the propriety of the subsequent detention and investigation by Corporal Martin. He argues that because Corporal Martin had no reasonable grounds to suspect him of drug related activity, the continued detention and questioning about the destination, and purpose of renting the Ryder truck, was unreasonable. We agree.

This precise issue was addressed in a case, remarkably similar to the one at bar. U.S. v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988). Although we are not bound by Guzman, we find its reasoning to be persuasive.

In Guzman, Guzman and his wife were travelling in New Mexico in a rented vehicle. An officer, who suspected a violation of New Mexico’s seat belt law, stopped their vehicle. The officer requested to see Guzman’s license and rental agreement. The officer reviewed Guzman’s license, registration and rental agreement and concluded that they were in order.

Rather than issuing a warning or citation, the officer decided to conduct a further investigation to determine whether Guzman was hauling contraband in the rented vehicle. While still retaining the documents, the officer asked the couple a series of questions relating to their marriage, their destination, and whether they were carrying large sums of money. Guzman’s wife told the officer that they had saved $5000 for the trip.

The officer proceeded to ask Glizman if he was carrying weapons or contraband, to which Guzman responded “no” and that the officer was “free to look.” The officer then produced a consent form, which Guzman executed. Upon searching the vehicle, the officer found a package of cocaine located underneath the rear seat.

Guzman filed a motion to suppress the cocaine seized from the vehicle. The motion challenged the legality of the initial stop, the extent of the subsequent seizure and investigation, and the consent to the search. The district court excluded all the evidence on the ground that the initial stop was merely a pretextual justification for an unconstitutional stop. The court also concluded that even if the initial stop was legitimate, the officer’s conduct was “entirely beyond reason.” 864 F.2d at 1515. The United States appealed the district court’s decision to grant Guzman’s motion to suppress. On appeal, the Court of Appeals, concluding that it was without enough facts to determine the pretextual stop issue, addressed the issue of whether the officer, who stopped a vehicle for a seat belt violation, had a reasonable suspicion to justify the subsequent detention and questioning of its occupants.

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

In Guzman, the officer attempted to articulate his suspicions by pointing to the wife’s demeanor and responses to his questions. He also noted that he did not believe that the couple could have saved $5000. The Court of Appeals held that these actions did not arouse objective suspicion of any crime greater than failing to wear a seat belt. The court also held that the officer’s “hunch” was not sufficient to justify, after the fact, a seizure that was not objectively reasonable. See Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (unparticularized suspicions of inarticulate hunches are insufficient to justify detentions or seizures under Fourth Amendment, no matter how brief).

In this case, we reach a similar result. Corporal Martin reviewed Lopez’s license, registration and rental papers and concluded that they were in order. No objective circumstances suggested that Lopez or his wife had committed any crime more serious than the failure to cross the tow chains. Therefore, after Corporal Martin explained the violation, his authority was limited by both state and federal law, to issuing a citation or warning.

Without returning the documents, however, based on his “policeman’s intuition,” Corporal Martin questioned Lopez regarding the origin, destination, purpose and duration for traveling and renting the Ryder truck. Preliminary Hearing Transcript, August 2, 1989, 16-18; R.R. at 16A-18A. In addition, Corporal Martin asked Lopez whether he could look inside the truck and whether he was transporting any drugs, alcohol or weapons. Corporal Martin admitted at the preliminary hearing that this series of questions were unrelated to the purpose of the initial stop. Absent reasonable grounds to suspect an illegal transaction in drugs or other serious crime, the officer had no legitimate reason for detaining Lopez or for pursuing any further investigation of him, hence, the detention ceased to be lawful at this point. Thus, in accord with Guzman, we find that Corporal Martin’s continued detention and investigation of Lopez constituted an unreasonable seizure in violation of the Fourth Amendment; consequently, the evidence seized should have been suppressed.

In response to the arguments of Lopez on appeal, the Commonwealth claims that Lopez’s consent legitimized the search of the car. We do not agree. Because we conclude that the detention of Lopez was illegal, Lopez’s consent to the search of the Volkswagen was tainted by the illegality and was ineffective to justify the search. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Commonwealth v. Daniels, 410 Pa.Super 275, 599 A.2d 988 (1991).

Based upon the foregoing, we conclude that the evidence which was seized as a result of a violation of the Fourth Amendment was the fruit of an illegality and, therefore, the suppression court’s decision not to exclude it was erroneous. Thus, we need not address Lopez’s contention that the initial stop was a pretext to stop his car and search it for evidence of another crime. Accordingly, we reverse the judgment of sentence and remand this case for a new trial at which the Commonwealth will not be permitted to introduce the illegally seized evidence.

Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.