author: CIRILLO, Judge: DEL SOLE, Judge,

text:
    630 A.2d 28
    ST. PAUL MERCURY INSURANCE COMPANY, Appellant, v. Scott J. CORBETT.
    Superior Court of Pennsylvania.
    Argued April 19, 1993.
    Filed Aug. 13, 1993.

      James C. Haggerty, Philadelphia, for appellant.
    Richard L. Hughey, Media, for appellee.
    Before CAVANAUGH, WIEAND, McEWEN, CIRILLO, DEL SOLE, BECK, TAMILIA, JOHNSON and HUDOCK, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment entered in the Court of Common Pleas of Delaware County denying appellant St. Paul Mercury Insurance Company’s (St. Paul) post-trial motions and reaffirming its holding in favor of appellee Scott J. Corbett (Corbett). We reverse.

On June 21, 1985, Corbett, while in the course and scope of his employment, was involved in a motor vehicle accident in which he was the operator of a vehicle owned by his employer. The accident in question was a “hit and run” in which Corbett sustained severe personal injuries.

At the time of the accident, the employer’s vehicle was insured by Liberty Mutual Insurance Company (Liberty Mutual) and provided $15,000.00 of uninsured/underinsured motorist coverage (UM/UIM coverage) per person in accordance with the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S.A. § 1701 et seq. At the time of the accident, there also existed an insurance policy issued by Allstate Insurance Company (Allstate) to Corbett’s mother, Jane Corbett, with whom he resided. The Allstate policy provided $100,000.00 of UM/UIM coverage per person. There also existed a personal policy of insurance issued by CIGNA Insurance Company (CIGNA) to Diane Corbett, wife of Scott Corbett and a resident of the same household. This policy provided for $300,000.00 of UM/UIM coverage per person. Finally, Corbett himself had a special antique vehicle policy with St. Paul covering a 1952 Singer Roadster which provided for $50,000.00 of UM/UIM benefits.

Following the accident, Corbett made claims against all four of the above-mentioned policies for uninsured motorist (UM) benefits. Pursuant to the MVFRL, Liberty Mutual paid Corbett $15,000.00 in UM benefits since the accident occurred while he was driving an employer-owned vehicle insured by Liberty Mutual. See 75 Pa.C.S.A. § 1733(a)(1). Thereafter, Corbett sought recovery of additional UM benefits from Allstate, CIGNA and St. Paul.

St. Paul filed a petition seeking declaratory relief claiming that UM benefits were not recoverable by Corbett because the antique automobile insurance policy provided coverage limited to injuries sustained while Corbett was operating the antique automobile. The Honorable Anthony R. Semeraro denied St. Paul’s petition, finding Corbett was entitled to UM benefits under the antique policy. This timely appeal followed.

Appellant St. Paul presents one issue for our review:

(1) Whether the trial court erred in concluding that Corbett may maintain a claim for recovery of uninsured motorist benefits under the antique automobile policy issued by St. Paul?
(a) Whether the parties to the antique automobile policy reasonably expected coverage to extend to use of automobiles beyond the antique automobile and its limited uses?
(b) Whether the coverage limitations contained within the antique policy which allowed for a substantial reduction in premiums violated public policy?

[I] Initially, we note that our standard of review is narrow. Palladino v. Dunn, 361 Pa.Super. 99, 103, 521 A.2d 946, 948 (1987); see also Supp v. Erie Insurance Exchange, 330 Pa.Super. 542, 479 A.2d 1037 (1984). Since declaratory judgment actions follow the practice and procedure of actions in equity, we will review the determination of the trial court as we would a decree in equity and set aside the judgment of the trial judge only where it is not supported by adequate evidence. Palladino, 361 Pa.Super. at 103, 521 A.2d at 948; see also Shepley v. Dobbin, 351 Pa.Super. 182, 505 A.2d 327 (1986).

Absent a rejection of uninsured motorist benefits in the form of a written waiver signed by the insured, the MVFRL requires that every motor vehicle liability insurance policy issued in the Commonwealth include both uninsured and underinsured motorist coverage. See 75 Pa.C.S. § 1731. See also Johnson v. Pennsylvania National Insurance Compa nies, 527 Pa. 504, 594 A.2d 296 (1991); Wolgemuth v. Harleysville Mutual Insurance Company, 370 Pa.Super. 51, 535 A.2d 1145 (1988). St. Paul’s Antique Automobile Insurance Policy provided the mandatory offering of UM coverage. That coverage, however, is limited in these circumstances as provided in the clear language of the policy.

After reviewing the parties’ arguments, the insurance contract, the MVFRL and the applicable case law, we conclude that Corbett is not entitled to UM benefits under the Antique Automobile Policy. In our judgment, this conclusion is neither contrary to public policy nor in derogation of the right created by statute.

I. INTENT AND REASONABLE EXPECTATIONS OF INSURED.

This court has held that the proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured. Dibble v. Security of America Life Ins. Co., 404 Pa.Super. 205, 210, 590 A.2d 352, 354 (1991). In determining the reasonable expectations of the insured, courts must examine the totality of the insurance transaction involved. Id.; see also Curbee, Ltd. v. Rhubart, 406 Pa.Super. 505, 509, 594 A.2d 733, 735 (1991) (an interpretation of an exclusion clause in an insurance policy must be based on the policy in its entirety); Luko v. Lloyds of London, 393 Pa.Super. 165, 171-172, 573 A.2d 1139, 1142 (1990) (insurance must be construed as a whole, and not in discrete units). However, while reasonable expectations of the insured are the focal points in interpreting the contract language of insurance policies, see Collister v. Nationwide Life Insurance Co., 479 Pa. 579, 388 A.2d 1346 (1978); Winters v. Erie Insurance Group, 367 Pa.Super. 253, 532 A.2d 885 (1987), an insured may not complain that his or her reasonable expectations were frustrated by policy limitations which are clear and unambiguous. Neil v. Allstate Insurance Co., 379 Pa.Super. 299, 549 A.2d 1304 (1988). Like every other contract, the goal of interpreting an insurance contract is to ascertain the intent of the parties as manifested by the language of the policy. Koenig v. Progressive Insurance Co., 410 Pa.Super. 232, 236, 599 A.2d 690, 691-692 (1991).

The policy at issue is clear and unambiguous; it limits coverage to antique automobile activities. The Antique Auto Endorsement to the policy in effect at the time of the accident provides:

What This Endorsement Does
This endorsement helps define coverage under your Antique Auto Policy.
The covered auto must be used mainly for car club activities, exhibits, parades or a private collection. Occasional use of the automobile for other reasons is permitted. However, those reasons do not include the uses as listed below.
Regular driving. We won’t cover loss or damage if the vehicle is driven for regular auto usage. Example of regular auto usage includes driving to and from work or school.

(emphasis in original). As indicated, this endorsement applies to all coverages provided by St. Paul. All policy benefits, therefore, including UM benefits, contemplate limited coverage consistent with the limited use of the antique automobile. Clearly, had Corbett engaged in “regular driving” of his antique automobile, on his way to or from work as he was during this hit and run accident, he would not, under the clear terms of the endorsement, be eligible for UM benefits. Can an insured under these circumstances then reasonably expect coverage when he is driving another motor vehicle and the covered automobile is safely garaged? Furthermore, Part C of the antique automobile policy, entitled “Uninsured Motorists Coverage,” clearly restricts UM benefits in accordance with the endorsement:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of either an uninsured motor vehicle or underinsured motor vehicle, but not both, because of .bodily injury:
1. Sustained by a covered person; and
2. Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle or underinsured motor vehicle.
* * * * * *
“Covered person” as used in this endorsement means:
1. You or any family member
2. Any other person occupying your covered auto.
3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. or 2. above.

(emphasis in original). On page one of the Antique Automobile Policy, under the general heading DEFINITIONS, “Your Covered Auto” is defined as follows:

“Your covered auto” means:
1. Any antique vehicle, classic vehicle or special interest vehicle shown in the Declarations.
2. Any antique vehicle, classic vehicle or special interest vehicle of which you acquire ownership during the policy period provided that it replaces one shown in the Declarations and you ask us to insure it within thirty days after you become the owner____

(emphasis in original). Although the dissent would find that under the terms of the policy uninsured motorist coverage extends to the named insured even when not occupying the antique automobile, the policy, when read in its entirety, limits coverage to antique automobile activities. Thus, UM coverage is restricted to the insured, his family members, or any other person occupying the “covered auto,” the antique vehicle. Paragraph one and paragraph two in the definition of covered person must be read together. In so doing, the phrase “occupying your covered auto” clarifies both “you or any family member” and “any other person.” Coverage under this policy is not independent of any connection with the “covered auto.” Cf. Royal Indemnity Company v. Adams, 309 Pa.Super. 233, 241, 455 A.2d 135, 139 (1983) (distinguishing between personal and vehicle related insurance in the policy; “any motor vehicle” as distinguished from “your covered auto”).

Clearly, a specialty or limited use policy such as the antique automobile policy before us must be distinguished from an ordinary policy covering a personal use automobile. The antique automobile insurance policy is not designed to provide UM benefits to a covered person in a hit and run accident unless the uninsured motor vehicle hits the antique auto. Cf Johnson v. Pennsylvania National Insurance, 527 Pa. 504, 509-510, 594 A.2d 296, 299 (1991) (“[T]he right to the uninsured motorist benefits is provided by statute, but the method of obtaining those benefits is covered by the insurance policy---- Clearly, if there were a policy provision that was in derogation of the right provided by statute, we would deem the policy provision unenforceable.”)

Corbett could not have reasonably expected coverage in the instant case. The antique policy limited coverage to the use of the Roadster. Corbett, in turn, limited the use of his Roadster. As a result, the premiums charged for the UM coverage under the antique policy were substantially lower than those charged under the regular or personal insurance policies. In fact, St. Paul charged only $6.00 for $50,000.00 in UM coverage for a period of one year. By contrast, the insurers of the personal or regular automobile insurance policies charged approximately $102.00 per year for $300,000.00 in UM coverage. This case illustrates the time worn maxim, “you get what you pay for.” Keeping in mind the low cost of the premiums, in addition to the clear language of the policy and the material differences between an antique car policy and a personal use automobile policy, Corbett could not reasonably expect St. Paul to provide UM coverage under the circumstances presented here. See Standard Venetian Blind v. American Empire Insurance Company, 503 Pa. 300, 469 A.2d 563 (1983); Koenig v. Progressive Insurance Company, 410 Pa.Super. 232, 599 A.2d 690 (1991).

II. PUBLIC POLICY.

The restricted UM coverage under the antique policy in this case is not contrary to public policy or the intent of the MVFRL. In fact, permitting coverage in this case would frustrate one of the intended goals of the MVFRL, to control spiraling insurance costs. See Lambert v. McClure, 407 Pa.Super. 257, 595 A.2d 629 (1991). In addition, this court has recently upheld various limitations on UM/UIM motorist coverage, mindful of the purposes of the MVFRL. See, e.g., Marino v. General Accident Insurance, 416 Pa.Super. 1, 610 A.2d 477 (1992) (a “use for hire” exclusion in an uninsured motorist endorsement is not violative of the MVFRL especially in light of the fact that the statute does not contain an exclusive list of permissible coverage exclusions); Kelly v. Nationwide Insurance Company, 414 Pa.Super. 6, 606 A.2d 470 (1992) (citing Wolgemuth v. Harleysville Mutual Insurance Company, 370 Pa.Super. 51, 535 A.2d 1145 (en banc), alloc. denied, 520 Pa. 590, 551 A.2d 216 (1988)) (a policy exclusion that prevents vehicles insured under the liability coverage of the policy from being considered as an underinsured vehicle is not contrary to public policy);. see also Adelman v. State Farm Mutual Insurance Company, 255 Pa.Super. 116, 386 A.2d 535 (1978). Though the law provides for a mandatory offering of uninsured motorist coverage mandatory, a restriction in coverage in these circumstances does not necessarily undermine the MVFRL. Cf. Wolgemuth, supra.

Recognizably, in order to reduce the costs of insurance, the Legislature must have intended to maintain different classifications of insurance such as the antique auto policy in this case. The policy that Corbett purchased is a special insurance policy designed specifically for antique and collector automobiles. The very limited use of antique automobiles does not subject them to the normal exposure or danger from uninsured motorists. These vehicles are seldom driven on highways for fear of wear and tear or breakdown. In fact, owners of antique automobiles often have their antique cars transported on flatbed trucks. Because of the decreased risks associated with antique vehicles, premiums for these special insurance policies are lower than those for personal automobile policies. To invalidate the restrictions found in the policy would force insurance companies to raise rates on antique automobile policies to account for the attendant increased risks. If coverage is permitted under the circumstances presented here, the distinctions between antique automobile insurance and other types of insurance will be eradicated and premiums for antique vehicle insurance will be on par with personal automobile insurance. This result was not contemplated by the Legislature in enacting the MVFRL. See Wolgemuth, supra (one purpose of the legislature in enacting the Motor Vehicle Financial Responsibility Law was to reduce the cost of purchasing motor vehicle insurance); see also Marino, supra (it was the legislature’s intent when enacting the MVFRL to control rising insurance costs).

Finally, the fact that Pennsylvania provides for special registration plates and fees for antique automobiles and proscribes certain uses of such vehicles also illustrates the Legislature’s intent to maintain distinct classifications of automobiles. Different classifications of automobiles have different insurance needs. In this case, the antique policy issued to Corbett was not meant to compensate the insured or a covered person in an accident involving an uninsured motor vehicle unless that uninsured motor vehicle hits the antique car. Based on the foregoing, we do not find that this definition of “uninsured motor vehicle” in the insurance agreement offends public policy. Wolgemuth, supra.

Construing the insurance policy as a whole, keeping in mind the reasonable expectations of the insured as well as the plain language of the policy exclusions, Dibble, supra; Neil, supra, we find that the contracted coverage limitations in the antique automobile insurance policy are valid and enforceable. We, therefore, reverse the trial court’s decree denying St. Paul’s petition for declaratory and injunctive relief. Palladino, supra.

Judgment reversed.

DEL SOLE, J., files a dissenting opinion, in which WIEAND, McEWEN and BECK, JJ., join.

DEL SOLE, Judge,

dissenting.

While the Majority’s analysis might be a correct interpretation of the Uninsured Motorists coverage language contained in the Antique Auto Policy as it was originally issued on January 14,1982, it is the endorsement in effect on the date of the accident that controls. The Majority has failed to recognize that changes made in policy language in 1985, were significant and expressly altered those who would be “covered persons” under the antique automobile insurance policy. The 1985 endorsement does not contain the restricted language which was present in the original policy and it expressly provides coverage to Appellee as the named insured regardless of whether he was occupying the vehicle at the time of the accident. Because the express terms of the policy allow for coverage and because the Majority has failed to recognize this and has sought to interpret clear policy language by seeking to determine the intent of the parties, I dissent.

Appellee first acquired insurance for his antique automobile with St. Paul on January 14, 1982. The policy as originally issued provided uninsured motorist coverage under Part C. That section limited coverage to those who were occupying the antique automobile at the time of the accident by including the following definition of a “covered person.”

“Covered person” as used in the part means:
1. Any person occupying your covered auto.
2. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. above.

This provision continued to define the scope of the uninsured motorist coverage until January 14, 1985. At that time, following the passage of the Motor Vehicle Financial Responsibility Act, St. Paul issued a new endorsement, and increased the price of uninsured motorist coverage from $3.00 to $6.00. The new endorsement redefined the term “covered person” to read:

“Covered person” as used in this endorsement means:
1. You or any family member.
2. Any other person occupying your covered auto.
3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. or 2. above.

Appellee as the named insured qualifies as a “covered person” under paragraph one of the definition. The Majority, however, ignores the punctuation in the definition of “covered person” and concludes that “[paragraph one and paragraph two in the definition of covered person must be read together.” Majority Opinion at 31. The Majority reasons that by so reading the paragraphs, uninsured motorist coverage is restricted, as it was when originally issued in 1983, to the insured, his family members or any other person who is occupying the antique automobile at the time of the accident.

The Majority fails to realize that St. Paul made express alterations in the terms of coverage and, instead of listing a single class of covered persons (those occupying the vehicle,) it now provided two distinct groups and listed them in paragraphs one and two. Such a change would not have been necessary if coverage was to have continued to apply as before. The groups of “covered persons” in the 1985 endorsement are identified in separate paragraphs, and each clause defining a group ends in a period, not a comma or the conjunctive word “and.” The inclusion of a “period” indicates that the clauses were not meant to be read together; rather, each clause is independent of the other. Coverage applies to the named insured and his family members under paragraph one. Paragraph two extends coverage to any person who was occupying the covered vehicle. Paragraph three evidences the distinct nature of these two groups where it states that a covered person includes those persons “described in 1. or 2. above.” (emphasis added.) If the clauses were meant to be read together, as the Majority suggests, paragraph three would state that coverage applies to persons described in both 1. and 2. It does not.

The language contained in instant policy defining a “covered person” is found in many uninsured motorist policies issued throughout this Commonwealth. In cases involving policies with identical language, the clauses have never been read to modify each other as the Majority suggests. See: Caldararo v. Keystone, 393 Pa.Super. 103, 573 A.2d 1108 (1990); Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa.Super. 51, 535 A.2d 1145 (1988); Pirches v. General Accident Insurance Co., 354 Pa.Super. 303, 511 A.2d 1349 (1986.)

Because the restricted language of the original 1982 policy was changed in 1985 and, in clear terms, lists distinct classes of persons who are covered, and because these definitions have never been read together as modifying each other to create one identifiable group, I believe the Majority has erred in its reading of the policy language.

The Majority compounds this error by going outside the plain language of the policy in an effort to examine what Appellee could “have reasonably expected” his coverage to be. Majority Opinion at 9. It is elementary that when interpreting a contract which is clear and unambiguous, it must be construed only as written, and a court may not modify the plain meaning of the words under the guise of interpretation. Trumpp v. Trumpp, 351 Pa.Super. 205, 505 A.2d 601 (1985). The fact that the parties do not agree upon a proper interpretation does not necessarily render the contract ambiguous. Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986).

Because the express terms of the policy clearly afford Appellee relief, I believe the Majority’s discussion regarding the parties expectations is misplaced. Further, I would point out that the facts of the case do not support the Majority’s conclusion that Appellee could not have expected coverage in this case. The Majority bases its conclusion on the fact that premium charged for uninsured motorist benefits under the antique policy was much less than that charged for coverage on Appellee’s family auto policies. The Majority reasons that the antique policy was less expensive because it contemplated covering limited instances where the insured or a family member were traveling in the antique automobile. I disagree.

In seeking to identify the parties expectations the Majority has failed to consider the fact, as demonstrated by the record, that when St. Paul issued the expanded endorsement for uninsured motorist coverage in 1985, it doubled the uninsured motorist premium. Prior to 1985, the premium for uninsured motorist coverage under the antique automobile policy was $3.00. Following the renewal in 1985 with the expanded coverage, it rose to $6.00. Clearly, St. Paul anticipated a greater exposure from the new endorsement, and for that reason, it doubled the cost of uninsured motorist coverage for Appellee’s antique automobile.

The Majority’s forced interpretation of the policy’s clear and unambiguous definition of a “covered person” and its gratuitous assumption, without support in the record, of the Appellee’s economic expectation, cause me to strongly dissent from its ruling.

WIEAND, McEWEN and BECK, JJ., join.

      . Similar to the Liberty Mutual, Allstate and CIGNA policies, page 4 of the Endorsement to the Antique Automobile Insurance Policy issued by St. Paul in effect at the time of the accident defines an "uninsured motor vehicle” as follows:
      a land motor vehicle or trailer of any type.
      1. To which no bodily injury liability bond or policy applies at the time of the accident.
      2. Which is a hit and run vehicle whose operator or owner cannot be identified and which hits or which causes an accident resulting in bodily injury without hitting:
      a. you or any family member;
      b. a vehicle which you or any family member are occupying; or
      c. your covered auto.
      (emphasis omitted).

        . § 1731. Availability, scope and amount of coverage.
      (a) Mandatory offering. — No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are offered therein or supplemental thereto in amounts as provided in section 1734 (relating to request for lower limits of coverages). Purchase of uninsured and underinsured motorist coverages is optional.
      (b) Uninsured motorist coverage. — Uninsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of uninsured motor vehicles. The named insured shall be informed that he may reject uninsured motorist coverage by signing [a] written rejection form[.]
      75 Pa.C.S. § 1731.

      . An "uninsured motor vehicle,” as applicable in this case, is defined in the MVFRL as "[a]n unidentified motor vehicle that causes an accident resulting in injury.” 75 Pa.C.S. § 1702.

      . "Antique vehicle,” "Classic vehicle,” and "Special Interest vehicle” are further defined in this section of the policy.

      . Specifically, section 1340(b) of the Motor Vehicle Code provides that "[i]t is unlawful for any person to operate a vehicle with antique or classic registration plates for general daily transportation. Permitted use shall be limited to participation in club activities, exhibits, tours, parades, occasional transportation and similar uses. Occasional transportation shall mean no more than one day per week.” 75 Pa.C.S.A. § 1340(b).
      In addition, the annual registration fee of an antique or classic vehicle is $50.00 pursuant to section 1923 of the Motor Vehicle Code; in comparison, the annual registration fee for passenger cars is $24.00 pursuant to section 1912. 75 Pa.C.S.A. §§ 1923, 1912.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    630 A.2d 35
    COMMONWEALTH of Pennsylvania, Appellee v. Roy McELROY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1993.
    Filed Aug. 18, 1993.

      Peter T. Campana, Williamsport, for appellant.
    Daniel E. Holmes, Ásst. Dist. Atty., Williamsport, for Comm., appellee.
    Before ROWLEY, President Judge and WIEAND, CIRILLO, DEL SOLE, TAMILIA, KELLY, POPOVICH, HUDOCK and FORD ELLIOTT, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Lycoming County, following appellant’s conviction on the charge of driving under the influence of alcohol. 75 Pa.C.S.A. §§ 3731(a)(1) and (a)(4). Herein, appellant contends that the initial stop of his vehicle was illegal because the police officer lacked “probable cause to believe” or “articulable and reasonable grounds to suspect a violation of the [Vehicle Code],” pursuant to 75 Pa.C.S.A. § 6308(b). En banc consideration of this case was granted so that we may clarify the standard to be applied when determining whether a police officer may legally stop a motor vehicle, i.e., “probable cause to believe” the driver or the vehicle is in violation of the Vehicle Code or “articulable and reasonable grounds to suspect” a violation of the Code. In addition, we must determine whether the facts sub judice were sufficient to warrant a vehicular stop.

Upon review of the facts herein, we find that the traffic stop of appellant’s vehicle was warranted and the lower court correctly denied appellant’s motion to suppress. Accordingly, we affirm.

In reviewing the propriety of a suppression order, we are limited primarily to questions of law and are bound by the suppression court’s findings of fact if those facts are supported by the record. In determining whether those findings are supported by the record, we consider only the evidence of appellee and so much of the evidence of appellant which remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 212-16, 469 A.2d 137, 138-139 (1983); Common wealth v. Lagamba, 418 Pa.Super. 1, 3-5, 613 A.2d 1, 2 (1992); Commonwealth v. Elliott, 376 Pa.Super. 536, 542, 546 A.2d 654, 657 (1988), allocatur denied, 521 Pa. 617, 557 A.2d 721 (1989).

In light of the aforementioned standard, the record reveals the following facts: On August 3, 1991 at about 2:40 a.m., Officer Arnold Duck and Officer Mark Sechrist of the Williamsport Bureau of Police were travelling west on Third Street in Williamsport. The officers observed appellant’s Dodge pick-up truck travelling east on Third Street toward them over a large dip in the road. Officer Duck testified that he observed appellant’s vehicle for approximately five seconds as it approached him. From his observation and experience, Officer Duck opined that the vehicle was travelling at “a high rate of speed” and estimated the truck’s speed to be at least 80 miles per hour in a posted 35 mile per hour zone.

Officer Duck turned immediately and pursued appellant for one-quarter to one-half mile within the city limits of Williams-port and then for an additional one-half mile in Loyalsock Township before he was able, to stop appellant. Officer Duck testified that, at the time, he felt that he had probable cause to stop appellant for travelling in excess of the speed limit, a violation of 75 Pa.C.S.A. § 3362. He further testified that at the time of the traffic stop, he was not “subjectively thinking” that appellant was violating 75 Pa.C.S.A. § 3361, Driving vehicle at safe speed. See, Trial Court Opinion, pp. 1-2.

During the vehicle stop, Officer Duck and his partner detected the odor of alcohol on appellant’s breath and asked appellant to submit to field sobriety tests. Appellant agreed to perform the field sobriety tests. However, he was unable to perform the field sobriety tests successfully. After concluding that appellant was intoxicated, Officer Duck arrested appellant and transported him to the DUI processing center at the Divine Providence Hospital, where a blood test revealed appellant’s blood alcohol content to be .19%.

Appellant was charged with driving under the influence of alcohol, 75 Pa.C.S.A. §§ 3731(a)(1) and (a)(4), and driving vehicle at [un]safe speed, 75 Pa.C.S.A. § 3361. Prior to trial, appellant filed a motion to suppress evidence based on the following two arguments: 1) Appellant was stopped outside Officer Duck’s jurisdiction; and 2) Officer Duck did not have “articulable and reasonable” grounds — much less probable cause — to stop appellant. The trial court rejected both of appellant’s arguments. At the conclusion of a case stated, non-jury trial, appellant was found guilty of driving under the influence of alcohol and not guilty of the summary charge of driving vehicle at unsafe speed.

Turning now to the issues at hand, we must first determine what is the proper standard to be applied when reviewing the propriety of a traffic stop. In Commonwealth v. Swanger, 453 Pa. 107, 115, 307 A.2d 875, 879 (1973), our Supreme Court stated: “We, therefore, hold before a police officer may stop a single vehicle to determine whether or not the vehicle is being operated in compliance with The Vehicle Code, he must have probable cause based on specific facts which indicate to him either the vehicle or driver is in violation of the code.” Two years later, in Commonwealth v. Murray, 460 Pa. 53, 58-59, 331 A.2d 414, 416-417 (1975), our Supreme Court rephrased the standard as follows:

If the alleged basis of a vehicular stop is to permit a determination whether there has been compliance with the Motor Vehicle Code of this Commonwealth, it is encumbent upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code. Commonwealth v. Swanger, supra 453 Pa. at 115, 307 A.2d at 879; see also Commonwealth v. Boyer, 455 Pa. 283, 286, 314 A.2d 317, 318 (1974) (footnote omitted). (Emphasis added.)

Both Swanger, supra, and Murray, supra, were decided when the Motor Vehicle Code, 75 Pa.S.A. § 1221(b), permitted police officers to stop a motor vehicle, despite no outward indication that the vehicle or its driver was in violation of the Code. The purpose of those decisions was to require the government to have “specific facts justifying the intrusion”, before the police may single out an automobile for a stop. Swanger, 307 A.2d at 878.

In response to those decisions, the Legislature enacted 75 Pa.C.S.A. § 6308, Investigation by police officers, which, in pertinent part, provides:

(b). Authority of police officers. — Whenever a police officer is engaged in a systematic program of checking motor vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purposes of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other-information as the officer may reasonably believe to be necessary to enforce the provisions of this title. (Emphasis added.)

Since the enactment of 75 Pa.C.S.A. § 6308, this court has, in most instances, used the standard of “articulable and reasonable grounds to suspect a violation of [the Vehicle Code]”, as set forth in the statute, to assess whether a traffic stop was legal. See, e.g., Commonwealth v. Parker, 422 Pa.Super. 393, 399-01, 619 A.2d 735, 738 (1993); Commonwealth v. Lopez, 415 Pa.Super. 252, 257-59, 609 A.2d 177, 180 (1992); Commonwealth v. Triplett, 387 Pa.Super. 378, 382-84, 564 A.2d 227, 230 (1989); Commonwealth v. Elliot, 376 Pa.Super. 536, 544-47, 546 A.2d 654, 658-659 (1988), appeal denied, 521 Pa. 617, 557 A.2d 721 (1989); Commonwealth v. Fisher, 294 Pa.Super. 486, 490-92, 440 A.2d 570, 572 (1982). However, in similar traffic stop cases, this court has also applied the standard of “probable cause to believe” that the Vehicle Code has been violated. See, e.g., Commonwealth v. Whitmyer, 415 Pa.Super. 393, 398-400, 609 A.2d 809, 812 (1992), petition for allocatur filed on August 17, 1992 at 326 M.A.L. 1992; Com monwealth v. Lagamba, 418 Pa.Super. 1, 9-11, 613 A.2d 1, 5 (1992).

Although the two standards appear to differ, due to the use of the term “probable cause” which usually denotes a higher level of knowledge by the police of an illegal act, e.g., “probable cause to arrest” or “probable cause to search”, the difference is largely a matter of semantics. In practice, the standards have been used interchangeably. Fcr example, in Lopez, 609 A.2d at 180, this court cited Murray, supra, and Swanger, supra, for the proposition that: “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.” (Emphasis added.) Similarly, in Whitmyer, supra, this court, in rejecting the Commonwealth’s assertion that the standard was “reasonable suspicion to believe”, clearly indicated that “probable cause to believe” and “articulable and reasonable grounds to suspect” are the proper standards and application of either standard would end in the same result. Whitmyer, 609 A.2d at 812-813. Therein, ruling upon similar facts, we stated:

If we apply the standard as articulated by the United States Supreme Court [in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ], as restated by our state Supreme Court [in Murray, supra, and Swanger, supra], or as set forth in the statute [75 Pa.C.S.A. § 6308(b) ], the analysis and result by the distinguished trial court remains unassailable. The critical issue is whether the trooper had articulable and reasonable grounds to suspect, or probable cause to believe, that Jack A. Whitmyer was not driving his vehicle at a safe speed, thereby violating 75 Pa.C.S. § 3361.”

However interchangeable the two standards for assessing police conduct in traffic stops may be, we herein adopt “articulable and reasonable grounds to suspect” as the preferred standard. 75 Pa.C.S.A. § 6308. In so doing, we seek to avoid any confusion which may be caused by the use of the term “probable cause” to describe and assess those police encounters with citizens which do not rise to the level of an arrest or search.

Turning to the merits of this appeal, we must first determine whether Officer Duck had articulable and reasonable grounds to suspect appellant was violating the Vehicle Code at the time when Officer Duck stopped appellant’s vehicle. Parker, 619 A.2d at 738; Lagamba, 613 A.2d at 3; Fisher, 440 A.2d at 572. When we review the lower court’s analysis of this case, based on the undisputed facts, we find no fault with the lower court’s decision that the initial traffic stop of appellant’s vehicle was entirely proper.

At approximately 2:43 a.m., Officer Duck observed appellant’s vehicle travelling towards him for approximately five seconds, during which time appellant’s vehicle traversed a large dip in the road. Officer Duck estimated appellant’ speed to be at least 80 miles per hour in a urban area with a speed limit of 35 miles per hour. Officer Duck turned his police cruiser around and pursued appellant for at least three-quarters to one mile before he was able to stop appellant.

Appellant initially submits that the traffic stop was improper because Officer Duck testified that he was stopping appellant for violating 75 Pa.C.S.A. § 3362, Maximum speed limits, while appellant was actually charged with 75 Pa.C.S.A. § 3361, Driving vehicle at safe speed. Thus, appellant, citing Com monwealth v. Orwig, 248 Pa.Super. 284, 375 A.2d 99 (1977), argues that the stop was improper because Officer Duck’s “subjective belief’ that appellant had violated § 3362 of the Vehicle Code was not supported by “probable cause”. Appellant contends that Officer Duck did not have “probable cause” to cite appellant for speeding under 75 Pa.C.S.A. § 3362, because, “[a] police officer’s personal opinion [of a vehicle’s speed] is insufficient to justify a prosecution on a charge of speeding in violation of § 3362 of the Motor Vehicle Code. Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989) [, appeal denied 525 Pa. 597, 575 A.2d 563].” Appellant’s Supplemental Brief, p. 8. Further, appellant posits that we are not permitted to adopt, after the fact, a different justification for the traffic stop, i.e., a violation of § 3361 of the Vehicle Code rather than § 3362 of the Vehicle Code. See Orwig, 375 A.2d at 101. Finally, appellant argues that the evidence does not amount to “articulable and reasonable ground to suspect” a violation of 75 Pa.C.S.A. § 3361, Driving vehicle at safe speed.

It is true that a police officer’s opinion testimony alone is not sufficient to sustain a conviction for speeding under 75 Pa.C.S.A. § 3362. Martorano, 563 A.2d at 1233. However, the question presented is not whether Officer Duck’s testimony could sustain a conviction for speeding, but rather whether his testimony amounts to “reasonable and articulable grounds to suspect a violation of the Vehicle Code.” Certainly, Officer Duck’s opinion that appellant’s truck was travelling at 80 miles per hour in a 35 mile per hour zone amounts to “articulable and reasonable grounds to suspect” appellant was speeding, and Officer Duck was entitled to stop appellant and request appellant’s driver’s license, vehicle registration and proof of financial responsibility. 75 Pa.C.S.A. § 6308. In the analogous case of Fisher, 440 A.2d at 572, we found that a police officer was authorized to stop the defendant’s vehicle for violating the speed limit and perform, inter alia, a registration check, despite the fact the vehicle was travelling less than six miles per hour in excess of the legal speed limit and, thus, the defendant could not be convicted for speeding pursuant to 75 Pa.C.S.A. § 3368 (conviction permitted only if radar records motor vehicle travelling six or more miles per hour in excess of legal speed limit). Similarly, we find that Officer Duck was certainly entitled to stop appellant, perform a registration check and, at least, warn appellant against speeding. It is of no moment to our analysis herein that Officer Duck’s testimony would not have been sufficient to convict appellant of speeding.

Even if we were to assume that Officer Duck did not possess “articulable and reasonable grounds to suspect” appellant was speeding, Officer Duck most certainly had sufficient grounds upon which to believe that appellant was violating § 3361 of the Vehicle Code, Driving vehicle at safe speed, which provides:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when travel-ling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

The fact that Officer Duck did not stop appellant upon his “subjective belief’ that appellant was violating § 3361 of the Vehicle Code does not invalidate the legality of the traffic stop, pursuant to Orwig, 375 A.2d at 101. In Commonwealth v. Neufer, 264 Pa.Super. 553, 400 A.2d 596 (1979), we stated:

... ‘Where the good faith of the arresting officer is not an issue, and where the crime for which a suspect is arrested and that for which the officers have probable cause are closely related, courts typically use an objective rather than subjective measure of probable cause’. U.S. v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). ... When a crime for which the arrest is made and a crime for which probable cause exist are in some fashion related, there is no question that the arrest is a valid one. Mills v. Wainwright, 415 F.2d 787 (5th Cir.1969); Chaney v. Wainwright, 460 F.2d 1263 (5th Cir.1972).

Similarly, Officer Duck’s subjective reason for stopping appellant, i.e., speeding in violation of § 3362 of the Vehicle Code, is very closely related to the crime charged, i.e., driving at an unsafe speed in violation of § 3361 of the Vehicle Code. Accordingly, we will employ an objective measure, and, thus, the pertinent question is whether Officer Duck had “articulable and reasonable grounds to suspect” appellant was violating § 3361 of the Vehicle Code.

Applying that standard to the facts before us, we conclude that the traffic stop was proper. Certainly, Officer Duck’s observation that appellant was travelling approximately 80 miles per hour over a large dip in the road in an urban area at 2:30 a.m., would give the officer “articulable and reasonable grounds to suspect” appellant was travelling at a “speed greater than is prudent under the conditions.” 75 Pa.C.S.A. § 3361. In Commonwealth v. Monosky, 360 Pa.Super. 481, 520 A.2d 1192 (1987), we found that police officers’ opinion testimony of vehicle’s speed may be sufficient to sustain a conviction for a violation of § 3361 of the Vehicle Code. If such opinion evidence may be sufficient to convict a defendant of driving at an unsafe speed in certain circumstances, we are convinced that Officer Duck’s opinion of appellant’s speed is sufficient to sustain the far lesser burden of “articulable and reasonable grounds to suspect a violation.”

Nevertheless, appellant, citing Whitmyer, supra, argues that Officer Duck’s observations were not sufficient to warrant the traffic stop. In Whitmyer, supra, a police officer stopped Whitmyer’s vehicle because the officer felt the operator was driving “erratically” and was travelling at an unsafe speed in violation of 75 Pa.C.S.A. § 3361. The officer testified that he followed Whitmyer for two-tenths of a mile at 70 miles per hour in a 55 miles per hour zone, before Whitmyer exited the highway. He described Whitmyer’s driving as “erratic” and noted that the traffic on the highway was medium to heavy at the time. In spite of the officer’s testimony regarding his reasons for stopping appellant, the trial court suppressed of all evidence gained as a result of the stop. The trial court reasoned that the police officer did not have “probable cause to believe” that Whitmyer was in violation of § 3361 of the Vehicle Code, and, thus, the stop was illegal. A panel of this court agreed with the trial court that the officer’s observations did not amount to “articulable and reasonable grounds to suspect” that Whitmyer was driving at an unsafe speed. Whitmyer, 609 A.2d at 814-815.

However, to the extent that our decision in Whitmyer, supra, is seen to conflict with our present determination that Officer Duck’s possessed “articulable and reasonable grounds to suspect” a violation of § 3361 of the Vehicle Code, we expressly overrule Whitmyer, supra. We note that we do not disagree with the statement of the applicable law as set forth in Whitmyer, supra. Rather, it is the panel’s application of the law to the specific facts of the case which was erroneous. See, Dissenting Opinion by Popovich, J., Whitmyer, 609 A.2d at 815-817. We must remember that we are not presented with a question of whether Officer Duck’s testimony was sufficient to convict appellant of driving at an unsafe speed. Rather, we must determine only whether the officer possessed “articulable and reasonable grounds to suspect” the violation. Such standard requires far less evidentiary support than that required for either the traditional usage of “probable cause” or a conviction. In essence, we are faced with a Terry stop analysis when assessing the legality of a traffic stop for a violation of the Vehicle Code.

In sum, we find that Officer Duck had “articulable and reasonable grounds to suspect” appellant was driving at an unsafe speed. Consequently, Officer Duck had legally stopped appellant’s vehicle pursuant to 75 Pa.C.S.A. § 6308, when he smelled the odor of alcohol on appellant’s breath. The officer’s detection of the odor of alcohol clearly warranted further investigation in the form of a field sobriety test. It was proper, based on appellant’s failure of the field sobriety test, to arrest appellant for driving under the influence of alcohol and to proceed with further testing of appellant, including a blood alcohol test. Terry, supra; cf., Parker, 619 A.2d at 738; Lagamba, 613 A.2d at 5-6; Fisher, 440 A.2d at 572. Accordingly, the evidence gathered herein was not the “fruit of a poisonous tree”, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and the lower court properly denied appellant’s motion to suppress the evidence.

Judgment of sentence affirmed.

      . We note that the opinion of the lower court cites the maximum estimated speed of appellant’s vehicle as 60 miles per hour. However, the record clearly indicates that Officer Duck actually estimated the speed to be approximately 80 miles per hour. N.T., 1/8/92, p. 5.

      . Appellant has not pursued this issue on appeal.

      . We cite this passage from Whitmyer, supra, for the purpose of demonstrating that both standards are essentially identical in their application. While we agree with the law as set forth in Whitmyer, supra, we do not cite the above-quoted passage to indicate our agreement with the outcome reached in Whitmyer, supra. To the contrary, as our discussion, infra, indicates, we disagree with the result in Whitmyer, supra,
        and to the extent that it is seen to conflict with our decision herein, 'Whitmyer, supra, is expressly overruled.

      . If our Supreme Court did not agree that the two standards are interchangeable, our high court could have granted allocatur in Elliott, supra, which it chose not to do. We also note that the petition for allocatur filed in Whitmyer, supra, on August 17, 1992, at 326 M.A.L. 1992, is still pending at this time.

      . At the time of the stop, Officer Duck had been a member of the Williamsport Police Department for almost nine years.

      . During the vehicular stop, the officer detected the odor of marijuana. A subsequent search of Whitmyer uncovered a film cannister of marijuana which was concealed in the front pocket of Whitmyer’s shirt.

      . Moreover, even if we were to agree with the panel's application of the law to the facts in Whitmyer, supra, we would find that present facts warranted a traffic stop of appellant’s vehicle. Herein, Officer Duck estimated the vehicles speed to be approximately 45 miles per hour over the speed limit, in an urban area, late at night. Such evidence is more compelling than that presented in Whitmyer, supra, where the officer testified that the defendant was travelling fifteen miles per hour over the legal limit on a three lane interstate highway.


author: CAVANAUGH, Judge:

text:
    630 A.2d 42
    COMMONWEALTH of Pennsylvania v. Paul DiGIOVANNI, Appellant.
    Superior Court of Pennsylvania.
    Argued June 22, 1993.
    Filed Aug. 19, 1993.

      William T. Cannon, Philadelphia, for appellant.
    Peter Gardner, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, HUDOCK and CERCONE, JJ.
   CAVANAUGH, Judge:

Appellant Paul DiGiovanni was found guilty in a non-jury trial of possession to deliver a controlled substance and criminal conspiracy, and was sentenced to an aggregate term of imprisonment of three to six years. On appeal, he presents the following single issue for our review: whether the trial court, acting as the pretrial suppression court, erred when it denied his motion to suppress the physical evidence. More specifically, he argues that the police attained a warrant in the case sub judiee in anticipation of future events, which in most situations he claims Commonwealth v. Reviera, 387 Pa.Super. 196, 563 A.2d 1252 (1989), appeal dismissed 526 Pa. 41, 584 A.2d 308 (1991), teaches is improper. We affirm, as we disagree with appellant’s reading of Reviera and we adhere to federal precedents that have declared probable cause exists in identical scenarios.

The facts concerning the appellant’s arrest were aptly summarized by the trial court:

On March 1, 1990, Philadelphia Police received information from Detective Cook of the Tucson, Arizona Police Department that they had uncovered a package containing approximately fifteen (15) pounds of marijuana. Detective Cook stated that the package was opened by an employee of Pak Mail of America, a package delivery company. It was their policy to open packages they come in contact with to check for hazardous material. The employee also checked the return address on the package and found it to be a nonexistent location. Upon opening the box, the employee discovered the marijuana and immediately contacted the Tucson Arizona Police Department. Detective Cook responded and conducted a field test on the contents of the package which proved positive for marijuana. Further investigation by the Tucson Police disclosed that the person who sent the package, Jay Anderson, had sent several other packages in the past four months to the same address in Philadelphia. The name of the intended recipient in Philadelphia was “Rose Mary King”, an apparently fictitious person.
Due to the intended destination of the package, Detective Cook contacted Philadelphia Police. After speaking with Sergeant Mander of the Philadelphia Police it was agreed that Detective Cook would place an identifying label on the package and ship it to the United Parcel Service (hereinafter “UPS”) office in Philadelphia.

On March 2, 1990, at approximately 9:30 a.m., Sergeant Mander came into contact with the package at the UPS Loss Prevention Office at 4th Street and Oregon Avenue. After viewing the identifying label on the package, Sergeant Mander and Lieutenant Gallo opened the package. Upon observing the contents of the package and a badge number inside the box, the police resealed the box and removed the identifying label, leaving the original recipient label intact. The officers then secured a UPS truck and uniform. Sergeant Mander also notified Officer King to prepare and secure a Search and Seizure Warrant based on all the information he had obtained.

At approximately 11:45 a.m., Sergeant Mander met with Officer King, who had obtained the search warrant for the recipient address, the home of one Jacqueline DeMarco. These officers, along with several others met at a location in close proximity to where the package was to be delivered. Officer Spangler then put on the UPS uniform and entered the UPS delivery truck along with Sergeant Mander and Officer King to deliver the package.

Officer Spangler arrived at the location at approximately 12:10 p.m. The disguised officer knocked on the door and told the male that answered, that he had a delivery for “Rose Mary King.” The male stated that she was not at home and he would take the box. He then asked the undercover officer why he was using the small van and not the big one like earlier times. Spangler replied that they use the small vans for special deliveries and with that the male signed the delivery receipt, “David Wilson”, and took possession of the package. Officer Spangler then left and he gave a description of David Wilson to Officer King.

At approximately 12:15 p.m., Officer King, Officer Cudjik and several other police officers arrived at the premises to execute the search warrant. Officer Cudjik immediately crept to the front window as the other officers surrounded the house. Upon looking through the window he observed two white males who he later identified at trial as Paul DiGiovanni and David Wilson and a white female sitting around a coffee table containing the open package. He also perceived a conversation between the defendant and the female whereupon the defendant stood up and placed some of the contents of the package into a piece of tinfoil. The defendant then reached into his pocket and counted out some money which he placed on the coffee table. Moments later the police knocked on the front door and announced their presence. Shortly thereafter the door was forcefully opened and the police secured the premises. On the coffee table they confiscated two small tinfoil packages containing a ground weed and, on the floor next to the table, the open package containing a large amount of ground weed. All of this weed was later analyzed and identified as marijuana. The defendant, Paul DiGiovanni, co-defendant, David Wilson, and a female identified as Jacqueline DeMarco were arrested and charged with the aforementioned offenses.

The appellant filed a pretrial motion to suppress the physical evidence seized from Ms. DeMarco’s residence, alleging, inter alia, that the requirements for the use of an anticipatory search warrant were not met. On January 3,1992, a suppression hearing was held before the Honorable D. Webster Keogh. On January 17, 1992, the suppression court held another hearing, the purpose of this was to hear argument on a case which both sides claimed as binding, Commonwealth v. Reviera, supra. The suppression court found the Commonwealth’s presentation more persuasive and ruled that the appellant’s Motion to Suppress was denied. The trial was started later in the day. The Commonwealth’s case was put on that day, and the defendants’ case was presented on May 13, 1992. On July 1, 1992, the trial court found the appellant guilty of possession with intent to deliver and criminal conspiracy. On October 26, 1992, the defendant was sentenced to a mandatory term of three (3) to (6) years and was fined $15,000 pursuant to 18 Pa.C.S.A. § 7508. The appellant was also sentenced to a concurrent term of eleven and one-half (11$) to twenty-three (23) months on the criminal conspiracy conviction. This appeal followed.

Appellant argues presently that the suppression court erred by failing to find that the affidavit of probable cause was insufficient to justify an anticipatory search of Ms. DeMarco’s residence. He acknowledges that the police, under certain circumstances, may use anticipatory warrants. See United States v. Wylie, 919 F.2d 969 (2nd Cir.1990); United States v. Garcia, 882 F.2d 699 (2nd Cir.1989); Commonwealth v. Reviera, supra. However, he asserts that Reviera indicates that anticipatory warrants can only be used under a particular circumstance. Specifically, appellant interprets Reviera to declare that an anticipatory warrant can only be issued where there is evidence of ongoing criminal activity. Here, he asserts that the police had no knowledge or concrete suspicion that the person(s) receiving the package containing marijuana were engaged in criminal activity. Appellant, moreover, interprets Reviera as indicating that there is a preference for verifying that criminal activity exists before the warrant’s issuance. He characterizes that the procedure used by the police here amounts to nothing more than a fishing expedition, and that the police could have devised a better procedure than the one sub judice to safeguard against the violation of Constitutional rights.

As indicated by the seminal case in this area, Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), probable cause is a fluid concept which turns on the assessment of probabilities in a particular factual context. Gates, supra, at 232, 103 S.Ct. at 2329, 76 L.Ed.2d at 544. “While an effort to fix some general, numerically precise degree of certainty corresponding to ‘probable cause’ may not be helpful, it is clear that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’ ” Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637, 645 (1969) as quoted in Gates, supra, 462 U.S. at 235, 103 S.Ct. at 2330, 76 L.Ed.2d at 546 (citations omitted). Our Supreme Court, moreover, has declared that deference should be accorded the initial determination of probable cause made by the issuing magistrate:

[W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of a de novo review. A magistrate’s “determination of probable cause should be paid great deference by reviewing courts.” “A grudging or negative attitude by reviewing courts towards warrants” ... is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; “courts should not invalidate warrants] by interpreting affidavits] in a hypertechnical, rather than a commonsense, manner.”

Gates, supra, at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547 (citations omitted); accord Commonwealth v. Woods, 404 Pa.Super. 432, 436, 590 A.2d 1311, 1313 (1991); Commonwealth v. Yerger, 333 Pa.Super. 501, 511-2, 482 A.2d 984, 989 (1984). Accordingly, the traditional standard of review of a magistrate’s probable cause determination is whether a substantial basis existed for concluding that a search would uncover evidence of wrongdoing. Gates, supra, at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband will be found in a particular place.” Commonwealth v. Miller, 334 Pa.Super. 374, 382, 483 A.2d 498, 501-2 (1984), quoting Gates, supra, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548; accord Commonwealth v. Carlisle, 348 Pa.Super. 96, 100, 501 A.2d 664, 666 (1985).

The most relevant case in our Commonwealth, as both parties recognize, is Reviera, supra, a case of first impression for the appellate courts of this Commonwealth and to date the only one of our cases to have addressed the issue of anticipatory warrants. In Reviera, an undercover police officer was told by a confidential informant that controlled substances were being sold out of 3031 North Lawrence Street. The undercover officer tried to purchase an ounce of cocaine at the residence, but was told that by the resident that cocaine would not be available until another shipment arrived at 10:00 p.m. The officer was invited to return at that time to purchase cocaine. The officer proceeded to attain a warrant, issued at 9:50 p.m., to conduct a nighttime search for contraband at the house. As a result of the search, the appellant was arrested and charged with violations of the Controlled Substance, Drug, Device, and Cosmetic Act, 35 Pa.S.A. §§ 780-101 et seq. The suppression court subsequently granted the defendant’s motion to suppress because at the moment the warrant was issued, the package of controlled substances had not yet arrived at 3031 North Lawrence Street. Thus, the tenor of that court’s decision was that anticipatory warrants were per se invalid.

On appeal to this Court, we reversed. Without discussion, we followed the lead of the great majority of federal and states cases and approved the efficacy of anticipatory warrants. Reviera, supra, 387 Pa.Super. at 202, 563 A.2d at 1254 (citations in footnote omitted). We cautioned, however, that the use of anticipatory warrants should be tempered by a sufficient degree of judicial control over the circumstances under which the warrant would be executed. Id. at 204, 563 A.2d at 1256. We expressed concern that such a warrant might be prematurely executed, i.e., before the arrival of the contraband or evidence of a crime. Id. at 205, 563 A.2d at 1256. We concluded, however, that the facts presented did not implicate such a concern, as the warrant was issued at 9:50 p.m. and the affidavit indicated that that the suspect said the drugs would arrive at 10:00 p.m. Id. at 206, 563 A.2d at 1257.

We believe that the concern we had for premature execution of an anticipatory search warrant simply does not exist sub judice. Presently, the warrant was executed after a controlled delivery of the packaged evidence by the police. When a delivery of evidence is controlled by the government, as in the case sub judice, there is a greater probability than otherwise that the evidence, in fact, will be on the premises when the warrant is executed. Cf. Rivera v. United States, 928 F.2d 592, 602 (2nd Cir.1991). Thus, a controlled delivery makes premature delivery the most tangential of concerns.

The appellant does not question, nor could he, that anticipatory warrants have been found by Reviera as not per se violative of our Constitution’s requirement that a warrant be issued with probable cause. Rather, the appellant attempts to piece together portions of the court’s decision to stand for the proposition that Reviera requires that the police must suspect particular defendants of ongoing criminal activity before issuing a warrant.

It is true, as the appellant suggests, that the court declared: “a warrant must be based on information concerning past or present criminal activity.” Appellant’s Brief at 11, quoting Reviera, supra, 387 Pa.Super. at 203, 563 A.2d at 1255. Moreover, the court stressed the fact that a search warrant must be issued only “on the basis that criminal activity is in progress and that after the warrant is issued the crime will be completed within the near future.” Appellant’s Brief at 10, quoting Reviera, supra, at 202, 563 A.2d at 1255. However, the appellant pointedly fails to refer us to the court’s pronouncement:

[w]here magistrates are presented with reliable evidence that contraband will arrive at a specific location within a short period of time, they may conclude that a crime is in the process of being committed, and may issue the warrant despite the fact that the contraband has not arrived at its ultimate destination.

Reviera, supra, at 203, 563 A.2d at 1255. Nor does the appellant refer us to the court’s proclaimed holding:

[w]e hold that a magistrate has authority to issue a search warrant where she reasonably concludes that there is a fair probability that evidence of current or past criminal activity will be on the premises to be searched at the time the warrant is executed.

Id. at 203-4, 563 A.2d at 1255. We believe that the language the appellant relies on does not do justice to the totality of our pronouncements. We note that the chief concern we expressed is that anticipatory warrants might be prematurely executed, a concern that simply has no applicability here. We, accordingly, find appellant’s argument meritless.

We do not rely on the import of Reviera, alone. Persuasive federal precedent has found that “[wjhen evidence ... is on a sure course to its destination, as in the mail, the prior issuance of a warrant is permissible.” United States v. Hale, 784 F.2d 1465, 1468 (9th Cir.1986); accord United States v. Wylie, 919 F.2d 969, 974 (5th Cir.1990); United States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir.1988), cert. denied 490 U.S. 1005, 109 S.Ct. 1639, 104 L.Ed.2d 155 (1989); United States v. Goodwin, 854 F.2d 33, 36 (4th Cir.1988); United States v. Goff, 681 F.2d 1238, 1240 (9th Cir.1982); United States v. Lowe, 575 F.2d 1193, (6th Cir.), cert. denied 439 U.S. 869, 99 S.Ct. 198, 58 L.Ed.2d 180 (1978); United States v. Outland, 476 F.2d 581, 583 (6th Cir.1973); United States ex. rel. Beal v. Skaff, 418 F.2d 430, 432 (7th Cir.1969). Presently, the fact that a package containing contraband was mailed to an identified location gave the magistrate reasonable basis to conclude that there was a fair probability that evidence of crime or contraband would arrive on the premises. Reviera and the above federal cases illustrate that it is not necessary for the police to link a person to whose address contraband has been mailed to criminal activity before a magistrate can determine probable cause exists to issue an anticipatory warrant.

We find that the magistrate had a substantial basis for concluding that evidence of wrongdoing would be on the premises, and affirm the suppression court’s decision to deny appellant’s motion to suppress. The Philadelphia police did nothing more than make a controlled delivery of contraband that was already headed for an identified residence addressed to a particular person. The police did not manufacture these circumstances, but rightly investigated when this situation was made known to them by the Tucson, Arizona Police Department.

For the foregoing reasons, we affirm the court below.

Judgment of sentence affirmed.

      . The Commonwealth presently asserts that we need not address appellant’s argument. It claims that the appellant failed to display he had a legitimate expectation of privacy in Ms. DeMarco’s home at the suppression hearing.
      We reject this line of argument out of hand. Our Commonwealth’s Constitution, unlike its Federal counterpart, provides a non-resident with "automatic standing” to raise a Constitutional violation to a person in appellant’s position. See Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983). The Record does not indicate that the appellant’s alleged lack of standing to assert a violation of his Constitutional rights was ever raised below, nor would we expect it to have been raised given the well-settled nature of Pennsylvania's "automatic standing" rule. Both sides appear to have conceded at the suppression hearing that the appellant had a legitimate expectation of privacy in Ms. DeMarco's residence to challenge the warrant's validity. Moreover, the suppression court made no mention of this issue in its opinion. We accordingly feel that the Commonwealth's present argument is misguided, challenging something that was self-evident to the parties below. Certainly, a person on the premises at the time of the search and seizure has standing under the Pennsylvania Constitution. Commonwealth v. Treftz, 465 Pa. 614, 617, 351 A.2d 265, 268 (1976).

      . The Court in Reviera found efficacious Professor LaFave’s definition of “anticipatory warrant:” “a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place." LaFave, supra, § 3.7(c) at 94, quoted in Reviera, supra, 387 Pa.Super. at 201, 563 A.2d at 1254.

      . We note that the Reviera court, in reaching this conclusion, cited to a case similar to the present one where the police obtained from the post office the approximate time the package of contraband would be delivered. See, Reviera, supra, 387 Pa.Super. at 202, 563 A.2d at 1257, citing Skaff, supra.

      . Professor LaFave has noted that, as a general matter, anticipatory warrants in many respects are more reliable than the typical warrant:
      it may fairly be said that as a general proposition the facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon the known prior location of the items to be seized at the place to be searched.
      1 W. LaFave, Search and Seizure, § 3.7(c) at 97 (2d ed. 1987). This reasoning is particularly applicable to mailed contraband on a sure course to its delivery.

      . We note that the concept of probable cause differs from whether proof beyond reasonable doubt exists to find the person(s) to whom the package is addressed committed a crime, a far different question.


author: KELLY, Judge.

text:
    630 A.2d 47
    COMMONWEALTH of Pennsylvania, Appellant, v. John ANDERSON.
    Superior Court of Pennsylvania.
    Argued April 21, 1993.
    Filed Aug. 20, 1993.

      Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Karl L. Morgan, Philadelphia, for appellee.
    Before CIRILLO, KELLY and CERCONE, JJ.
   KELLY, Judge.

The Commonwealth brings this appeal asking us to determine whether the Trial Division court erred in dismissing charges against appellee on the ground that the Trial Division of the Court of Common Pleas had no subject matter jurisdiction where appellee committed crimes at age sixteen (16), fled, was arrested for a different crime at age nineteen (19), fled again, and then was apprehended at age twenty-two (22) for yet another set of crimes, and the Commonwealth sought to recharge appellee as an adult for those crimes allegedly committed as a juvenile. We reverse and remand the matter to the Trial Division court for the reasons stated below.

The relevant facts and procedural history of this case may be summarized as follows. In 1985, while at age sixteen (16), appellee allegedly participated in a fight with another teenager in a playground and struck the teenager in the head with a baseball bat. Subsequently, appellee was arrested and charged with possession of an instrument of crime generally, possession of a weapon, recklessly endangering another person, simple assault, and aggravated assault. Appellee failed to appear for his scheduled hearing in the Family Court Division. Due to appellee’s failure to appear, a bench warrant was issued.

In 1988, while at age nineteen (19), appellee allegedly committed the offense of retail theft. According to the record, appellee once again failed to appear for his scheduled hearing. As a result, the Philadelphia Municipal Court issued another bench warrant for appellee’s arrest.

In 1991, appellee, at age twenty-two (22), was arrested on other charges. The Commonwealth recharged appellee as an adult with the crimes he allegedly committed at the age of sixteen (16). Also at this time, the Family Court Division lifted appellee’s first bench warrant and transferred the case to the Trial Division on the ground that appellee was no longer a “child” as defined in the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq.

The court in the Trial Division heard and granted appellee’s oral motion to dismiss the adult, formerly juvenile, charges on the ground that the court in the Trial Division of the Court of Common Pleas lacked jurisdiction over juvenile offenders. The Trial Division then remanded the case to the Juvenile Division and quashed all bills of information. However, the Trial Division court later vacated its order granting appellee’s motion and allowed the Commonwealth’s petition to reconsider. Nonetheless, following reconsideration, the Trial Division court affirmed its decision to dismiss for lack of subject matter jurisdiction and denied relief to the Commonwealth. The Commonwealth filed this timely appeal.

In its appeal, the Commonwealth argues that appellee, who committed crimes at age sixteen (16), then remained on fugitive status until recaptured at age twenty-two (22), is no longer a child as defined by the Juvenile Act. Therefore, the Trial Division court erred in dismissing the charges against appellee on the ground that the court has no jurisdiction because appellee is no longer a child within the definition of the Juvenile Act. The Commonwealth further asserts that appellee can be tried as an adult in the Trial Division because appellee, by virtue of his sustained fugitive status, forfeited his opportunity to benefit from being tried as a child in the Family Court Division.

Appellee, on the other hand, contends that he should still be considered a child under the Juvenile Act because he is being charged with crimes allegedly committed at age sixteen (16). Appellee concludes that he should be tried in the Family Court Division.

The Juvenile Act defines a child in 42 Pa.C.S.A. § 6302 as follows:

“Child.” An individual who:
(1) is under the age of 18 years;
(2) is under the age of 21 years who committed an act of delinquency before reaching the age of 18 years; or
(3) was adjudicated dependent before reaching the age of 18 years and who, while engaged in a course of instruction or treatment, requests the court to retain jurisdiction until the course has been completed, but in no event shall a child remain in a course of instruction or treatment past the age of 21 years.

In the instant case, although appellee allegedly committed certain crimes before reaching the age of eighteen (18), he is now over the age of twenty-one (21). Appellee’s current age places him outside the Juvenile Act’s definition of a child. Therefore, the Juvenile Act does not apply to him. 42 Pa. C.S.A. § 6302(2). The inapplication of the Act to the appellee, however, does not mean that he inhabits a jurisdictional limbo between the Family Court Division and the Trial Division. Because of his current age, appellee is not a child. Thus, he should be tried as an adult in the Trial Division.

Appellee would have been tried as a child if it were not for his deliberate avoidance of the justice system. The instant case is analogous to Commonwealth v. Sims, 379 Pa.Super. 252, 255, 549 A.2d 1280 (1988), allocatur denied, 521 Pa. 630, 558 A.2d 532 (1989). In Sims, appellant refused to reveal his age to the Trial Division trial court. Id. at 254, 549 A.2d at 1280-81. On appeal, appellant claimed that the trial court lacked jurisdiction because it never properly ascertained that appellant was a child at the time of trial. Id. This Court held that “the Juvenile Act provided appellant the opportunity to request that his case be transferred to Juvenile Court and appellant failed to avail himself of this opportunity” by not divulging his correct age. Id. at 255, 549 A.2d at 1281. Even if the appellant had been a minor at the time of trial, which was not determined, he waived his right to be transferred to Family Court Division by refusing to reveal his age.

Similarly, appellee, by virtue of his flight, denied himself the opportunity to be tried in the Family Court Division. Specifically, appellee did not appear at his scheduled hearing in Family Court in 1985. Appellee’s action, thus, forfeited any benefits he might have derived from the Juvenile Court system. See Commonwealth v. Jones, 530 Pa. 536, 610 A.2d 439 (1992) (holding that appellant’s voluntary escape acts as per se forfeiture of his right to appeal).

As an alternative argument; appellee points out that the Commonwealth had appellee in its control at age nineteen (19) when he was arrested for retail theft. Appellee contends that the Commonwealth should have seized the opportunity to recharge appellee with his previous crimes at that time because, at age nineteen (19), he would still be considered a child under the Juvenile Act. Appellee concludes that the Commonwealth should be barred from recharging appellee as an adult with those crimes allegedly committed at age sixteen (16) due to the Commonwealth’s failure to recharge appellee at age nineteen (19), when it had the opportunity to do so.

Yet, the appellee fails to proffer record evidence that the Commonwealth was even aware of appellee’s prior juvenile charges. Appellee also neglects to present any evidence that he informed the Commonwealth that he was available to be tried on the juvenile charges, that he requested that the Commonwealth try him as a juvenile pursuant to 42 Pa.C.S.A. § 6302(2), or that he otherwise availed himself of the benefits of the Juvenile Act when they were his as of right. Thus, appellee’s alternative argument is groundless.

Based upon the foregoing analysis, we conclude that the trial court erred in dismissing the charges against appellee on the ground that the Trial Division of the Court of Common Pleas of Philadelphia County lacked subject matter jurisdiction. We remand the matter to the Trial Division court for further proceedings in accordance with this opinion.

Order reversed and remanded. Jurisdiction is relinquished.

      . The Trial Division and Family Court Division are two administrative units of the Court of Common Pleas of Philadelphia County. 42 Pa.C.S.A. § 952; 42 Pa.C.S.A. § 951. In addition, the Court of Common Pleas has unlimited original jurisdiction over all cases. Pa. Const. Art. V. § 5(b); 42 Pa.C.S.A. § 931; Commonwealth v. Green, 232 Pa.Super. 134, 144 n. 16, 335 A.2d 493, 498 n. 16 (1975). "[Ejach division of the court is vested with the full jurisdiction of the whole court...." 42 Pa.C.S.A. § 952.

      . 18 Pa.C.S.A. § 907(a).

      . 18 Pa.C.S.A. § 907(b).

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 3929.

      . We note that there is a discrepancy in the facts. Although it is somewhat illegible, Exhibit B of appellee’s brief reveals that appellee's retail theft charges were later dismissed by the Municipal Court. However, the certified record indicates that, under appellee's retail theft charge heading, a bench warrant was issued because appellee was at large.

      . By dismissing for the lack of subject matter jurisdiction, the trial court’s order disposes of all charges made by the Commonwealth and serves to put the litigants out of court, thus making the order final. Commonwealth v. Rosario, 419 Pa.Super. 481, 486, 615 A.2d 740, 743 (1992); Commonwealth v. Swartz, 397 Pa.Super. 157, 160, 579 A.2d 978, 980 (1990); Pa.R.App.P. 341(b). As a final order, this Court has jurisdiction to entertain the Commonwealth's appeal. 42 Pa.C.S.A. § 742; Rosario, supra, 419 Pa.Super. at 485, 615 A.2d at 743.

      . Appellee's reliance on Commonwealth v. Iafrate, 527 Pa. 497, 594 A.2d 293 (1991) is misplaced. In Iafrate, the Pennsylvania Supreme Court determined that the appellant in that case was a child as defined by the Juvenile Act because he committed an assault and was arrested on the day before his eighteenth (18th) birthday. Id. at 502, 594 A.2d at 295-96. The sole concern in Iafrate was whether the method of computing the age of an individual for the purposes of the Juvenile Act was the same as the method under the common law. The Iafrate court reasoned:
      To begin, one of the stated goals of the Juvenile Act is to provide for the care, protection and wholesome mental and physical development of children coming within the provisions of the statutes. 42 Pa.C.S. § 6301(b)(1). See also Commonwealth v. Davis, 330 Pa.Super. 551, 479 A.2d 1041 (1984), aff'd, 510 Pa. 536, 510 A.2d 722 (1986). Hence, our juvenile justice system is primarily rehabilitative in nature. ... Moreover, since the Juvenile Act is rehabilitative in nature, an extension rather than a restriction of the protective period of the Act is consistent with the directive that all but certain classes of statutes “shall be liberally construed to effect their objects and to promote justice.” 1 Pa.C.S. § 1928(c). Conversely, since the Crimes Code is obviously penal in nature, its application should be strictly construed against the party seeking enforcement and in favor of the defendant. 1 Pa.C.S. § 1928(b)(1). Therefore, we are convinced that the General Assembly did not intend the common law rule, which provides that a person reaches his next year in age the day prior to the anniversary of his birthdate, to apply to the Juvenile Act____ For purposes of the Act, an individual becomes a year older on the day of his birthday and not the day before.

        Id. at 500-02, 594 A.2d at 295 (footnote omitted).
      Obviously, the appellee in the instant case was a child when he allegedly committed the crimes at issue. Beyond that, Iafrate ceases to be instructive. Additionally, considering the goals of the Juvenile Act as stated in Iafrate, appellee no longer falls under the Act’s protective ambit due to his current age and his self-imposed denial of the Act’s protection. Moreover, appellee’s metaphor of the middle-aged person stigmatized by a criminal conviction for a minor juvenile offense is inappropriate and, for obvious reasons, self-serving. Appellee has hardly demonstrated the long-standing law abiding career following a minor incident as a child of his metaphorical middle-aged person. Here, appellee is being prosecuted at age twenty-two (22), and has an ongoing history of criminal charges he is endeavoring to elude, including, inter alia, an aggravated assault allegedly committed at age sixteen (16).

      . See, e.g., Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (holding that petitioner’s due process right to a speedy trial was not violated where his conduct, i.e. not objecting to eleven (11) continuances by the Commonwealth, reflected that he did not want a speedy trial); Commonwealth v. Tilley, 528 Pa. 125, 595 A.2d 575 (1991) (holding that appellant’s constitutional right to a speedy trial was not violated on the ground that, inter alia, appellant did not request a dismissal for alleged speedy trial violations until approximately a year after the original run date). See also United States v. Aguirre, 994 F.2d 1454 (9th Cir.1993) (if defendant is culpable in causing the delay of prosecution, such as when the defendant actively evades prosecution, prejudice growing from delay cannot inure to defendant’s benefit).


text:
    630 A.2d 51
    COMMONWEALTH of Pennsylvania v. Robert MUNTZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 1, 1993.
    Filed Aug. 23, 1993.

      Albert J. Flora, Jr., Wilkes-Barre, for appellant.
    Peter Paul Olszewski, Jr., Dist. Atty., Wilkes-Barre, for Com., appellee.
    Before MCEWEN, KELLY and HESTER, JJ.
   KELLY, Judge.

Appellant, Robert Muntz, asks us to determine whether the trial court erred in denying his oral request to withdraw his guilty plea, made subsequent to initial sentencing but prior to resentencing. We hold that appellant’s request for withdrawal must be examined under the post-sentencing standard of “manifest injustice,” and affirm the judgment of sentence.

The salient facts and procedural history of this case may be summarized as follows. On February 14,1991, appellant pled guilty to seven counts of robbery and two counts of simple assault. On May 22,1991, the trial court sentenced appellant to two (2) consecutive terms of four (4) to eight (8) years and a number of concurrent sentences.

The trial court denied appellant’s motion to modify sentence. Appellant filed a timely appeal from his judgment of sentence on June 19, 1991. On March 11, 1992, this Court vacated the first sentence and remanded the matter to the trial court for resentencing.

The trial court held appellant’s resentencing hearing on April 15, 1992. At the hearing, prior to resentencing, appellant orally requested permission to withdraw his guilty plea. The trial court denied his request and imposed a sentence of two (2) consecutive terms of three (3) to six (6) years, five (5) concurrent terms of three (3) to six (6) years, and four (4) terms of one (1) year probation to run consecutively to any parole which may follow from the sentence of incarceration.

In accordance with Rule 321 of the Pennsylvania Rules of Criminal Procedure, appellant moved to challenge the validity of his guilty plea. On April 24, 1992, the trial court denied this motion and re-sentenced appellant accordingly. This timely appeal followed.

On appeal, appellant contends that his oral request to withdraw his guilty plea should be considered as a presentence motion for withdrawal. Moreover, appellant asserts that, pursuant to Pa.R.Crim.P. 320, the trial court should have allowed the withdrawal under the pre-sentencing standard of “fair and just reason.” Appellant also maintains that the trial court erred by not making an inquiry into his claim of being influenced by mind-altering drugs. Lastly, appellant proposes that the trial court should have granted the withdrawal of the guilty plea because the withdrawal would not substantially prejudice the Commonwealth. We disagree.

A significant distinction exists between a pre-sentence request to withdraw a guilty plea and a post-sentence request to do so. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982).

The standard for allowing withdrawal of a guilty plea prior to sentence was articulated in Commonwealth v. Forbes, 450 Pa. 185, 191, 299 A.2d 268, 271 (1973) wherein we quoted with approval the following:

“Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea.” ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty ...
Because the plea involves the simultaneous waiver of so many constitutional rights, a request to withdraw prior to sentencing is “liberally allowed.” Id., 450 Pa. at 190, 299 A.2d at 271; see also Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976).
When considering a petition to withdraw a guilty plea submitted to a trial court after sentencing, however, it is well-established that “a showing of prejudice on the order of manifest injustice,” Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973), is required before withdrawal is properly justified. (Citations omitted). Post-sentencing attempts to withdraw a guilty plea must sustain this more substantial burden because of the recognition that a plea withdrawal can be used as a sentence-testing device. Commonwealth v. Starr, 450 Pa. at 489, 301 A.2d at 594. If a plea of guilty could be retracted with ease after sentencing, the accused might be encouraged to plea guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe.

Id. 498 Pa. at 345-46, 446 A.2d at 593.

To support his claim that his oral request should be examined under the pre-sentence standard of “fair and just reason,” appellant relies on Commonwealth v. Carr, 375 Pa.Super. 168, 543 A.2d 1232 (1988). In Carr, toward the beginning of his first sentencing hearing, the appellant orally moved to withdraw his plea before his sentence was imposed. Id. at 171, 543 A.2d at 1233. We held:

While a written motion must be filed within 10 days to challenge the denial of a motion to withdraw a plea, Pa. R.Crim.P. 321(a), a written motion is not a prerequisite to a valid exercise of a trial court’s discretion to permit or direct the withdrawal of a plea under Pa.R.Crim.P. 320 ... Consequently, we do not adopt the trial court’s alternative reasoning that the post-sentencing standard for withdrawing a guilty plea must be applied because a formal written motion to withdraw the plea was not filed until after sentence was imposed. Though not filed prior to sentencing, appellant’s motion was nonetheless made in open court prior to sentence and as such must be reviewed under the pre-sentence standard.

Id. at 171-72, 543 A.2d at 1233 (emphasis in original). See also Pa.R.Crim.P. 9020(a) (all motions, challenges, and applications or requests for an order or relief shall be by written motion, except as otherwise provided in these rules, or when made in open-court during a trial or hearing).

Although appellant, in the instant case, made his request in open court during a hearing and filed a motion to challenge the validity of his guilty plea in a timely fashion, Carr is not analogous to the instant case because, here, appellant petitioned to withdraw his guilty plea only after sentence had been imposed for the first time. Even though appellant made his request before his resentencing, this does not negate the fact that appellant failed to request allowance to withdraw his plea before his original sentencing. Therefore, appellant’s request falls under the scrutiny of post-sentencing standard of “manifest injustice” rather than the pre-sentencing standard of “fair and just reason.”

In Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973), the Supreme Court of Pennsylvania held that a mere claim of innocence constitutes a “fair and just reason” for the pre-sentence withdrawal of a guilty plea unless there is substantial prejudice to the Commonwealth. “The rule in Forbes is made, perhaps oversolicitously, in favor of justice, to protect against the possibility that an innocent defendant will erroneously plead guilty.” Commonwealth v. Iseley, 419 Pa.Super. 364, 375, 615 A.2d 408, 413 (1992). The goal of the rule, however, was not to facilitate “gamesmanship and cyclical manipulation” by an accused. Id. at 375, 615 A.2d at 413-14. Therefore, “[a] criminal defendant will not be permitted to play fast and loose with the guilty plea process.... ” Commonwealth v. Cole, 387 Pa.Super. 328, 334, 564 A.2d 203, 206 (1989).

Here, appellant’s predicament does not warrant the application of the pre-sentencing standard. Appellant delayed petitioning to withdraw his guilty plea despite his extended opportunity to do so during the three months between his plea and the initial sentencing. His delay in presenting his request until after sentence was imposed suggests that appellant was testing the sentencing process. Thus, appellant’s postponement warrants the application of the post-sentencing standard to his request to withdraw.

Under the post-sentencing standard, to substantiate a claim that the denial of appellant’s motion to withdraw his plea would work a manifest injustice, appellant must show that the plea was involuntary or was entered without knowledge of the charge. Commonwealth v. Shaffer, 498 Pa. 342, 347, 446 A.2d 591, 593 (1982). In the instant case, during resentencing,appellant alleged that at or before the time he entered his guilty plea, he was under the influence of mind-altering medication. However, a mere allegation absent supporting evidence, presented after sentencing, does not obligate the trial court to a hearing on the allegation. See Commonwealth v. Cappelli, 340 Pa.Super. 9, 20, 489 A.2d 813, 818 (1985). Nor is the trial court obliged to grant appellant’s request to withdraw his guilty plea because such bald claims do not rise to the level of “manifest injustice.” See Shaffer, supra.

Rule 319(a) of the Pennsylvania Rules of Criminal Procedure mandates an on-the-record colloquy, conducted prior to the court’s acceptance of a guilty plea.

A guilty plea must include inquiry as to whether: 1) the defendant understood the nature of the charge to which he is pleading guilty; (2) there is a factual basis for the plea; (3) the defendant understands that he has a right to a jury trial; (4) the defendant understands that he is presumed innocent until he is found guilty; (5) the defendant is aware as to the permissible range of sentences; and (6) the defendant is aware that the judge is not bound by the terms of any plea agreement unless he accepts such agreement.

Commonwealth v. Cole, supra, 387 Pa.Super. at 336, 564 A.2d at 206-07 (citing Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977)).

The reason for such a colloquy is to ensure that the defendant tenders the plea knowingly, voluntarily, and intelligently. Commonwealth v. Sutton, 474 Pa. 582, 583, 379 A.2d 107, 108 (1977). Appellant, however, neglected to certify for the record on appeal a copy of his guilty-plea colloquy. Nevertheless, for the purposes of an appeal, it is the responsibility of the appellant to offer a complete record for our review. Commonwealth v. Feflie, 398 Pa.Super. 622, 630, 581 A.2d 636, 640 (1990). Where a claim is dependent upon materials not provided in the certified record, that claim is considered waived. In re D.D., 409 Pa.Super. 35, 597 A.2d 648 (1991). Because appellant failed to present the colloquy for our examination, we are unable to effectuate a meaningful appellate review.

Based upon the foregoing analysis, we conclude that appellant’s request to withdrawal his plea must be scrutinized under the post-sentencing standard of “manifest injustice.” Additionally, because appellant did not provide adequate evidence in the certified record to suggest otherwise, his assertion that the trial court erred by not granting his request to withdraw his guilty plea is waived. Thus, we affirm judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 2701.

      . Pa.R.Crim.P. 321 states:
      Rule 321. Challenge to Guilty Plea
      (a) A motion challenging the validity of a guilty plea, or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the trial court within ten (10) days after imposition of sentence.
      (b) The motion shall be disposed of promptly.
      (c) The trial court may schedule a hearing on the motion and shall determine whether the motion shall be argued before one judge alone or before a panel of judges sitting as a court en banc. Whenever a single judge hears the motion alone, the judge may make any ruling that could be made by a court en banc.

      (Emphasis added).

      . Pa.R.Crim.P. 320 states:
      Rule 320. Withdrawal of Plea of Guilty
      At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.

      . In addition, we note that, in Commonwealth v. Middleton, 504 Pa. 352, 473 A.2d 1358 (1984), the Supreme Court of Pennsylvania held that the pre-sentencing standard applied to appellee’s motion to withdraw his guilty plea because a sentence hearing had not convened and because sentence had not been imposed for any of the crimes charged. Id. at 355, 473 A.2d at 1359. Unlike Middleton, in the instant case, appellant moved for a withdrawal after a sentence hearing was held and sentence imposed, albeit later vacated and remanded for re-sentencing.

      . In Commonwealth v. Flood, 426 Pa.Super. 555, 627 A.2d 1193 (1993), appellant pled guilty and was sentenced. After sentencing, however, appellant filed a motion to withdraw his plea at which time the trial court vacated the sentence while considering the motion to withdraw. The trial court then denied appellant’s motion to withdraw and reimposed his sentence. On appeal, we applied the post-sentencing standard to appellant’s contention that the trial court erred in denying his motion to withdraw. Analogously, we conclude that the post-sentencing standard applies in the instant case because the vacating of sentence by this Court does not magically transform appellant's post-sentence request to withdraw his guilty plea into a pre-sentence request.

      . Pa.R.Crim.P. 319(a) states:
      Rule 319. Pleas and Plea Agreements
      (a) Generally. Pleas shall be taken in open court. A defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. The judge may refuse to accept a plea of guilty, and shall not accept it unless he determines after inquiry of the defendant that the plea is voluntarily and understanding^ tendered. Such inquiry shall appear on the record. If the defendant shall refuse to plead, the court shall enter a plea of not guilty on the defendant's behalf.
      (Emphasis in original).