text:
    582 A.2d 690
    COMMONWEALTH of Pennsylvania v. Ronald DILIBERTO, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1990.
    Filed Nov. 21, 1990.

      Gary B. Zimmerman, Pittsburgh, for appellant.
    Michael W. Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before KELLY, FORD ELLIOTT and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from a judgment of sentence imposed upon appellant after being convicted on a weapons offense and a drug offense. Appellant raises two questions for review; whether the demonstration during trial of a switch blade knife opening was so prejudicial that it required a mistrial or a new trial, and whether due process prevents appellant’s conviction when the controlled substance he possessed was sold to him by an undercover police officer. We affirm.

Appellant was contacted by Officer Frank of the Penn Hills Police Department, acting in an undercover capacity and pursuant to information gained from an informant, and asked by Frank if he was interested in purchasing Percocet tablets. Officer Frank indicated he could sell the tablets to appellant and appellant indicated he was indeed interested in purchasing Percocets. After several conversations in which details of the exchange were being worked out, an exchange of Percocets for money was consummated. The tablets used in the exchange were acquired by Officer Frank from a drug company. During the transaction officer Frank produced a bottle of Percocets which appellant opened using a switchblade knife. At the conclusion of the deal, police officers from the Penn Hills Police Department arrested appellant. Appellant was charged with a prohibited weapons offense for possession of the switchblade knife and also possession of Percocets with intent to deliver. At trial Officer Frank, pursuant to the assistant district attorney’s question, demonstrated how the knife operates by pushing a button at which time the blade sprung up in a “startling fashion.” Trial counsel immediately requested a mistrial which was denied by the court. However, the court did issue a cautionary instruction to the jury. Appellant was convicted of the charges against him.

Appellant first argues that the opening of the knife at trial was inappropriate and so prejudicial that it requires a new trial. We disagree. Contrary to appellant's assertions, the demonstration of how the knife operated was not wholly irrelevant. The demonstration tended to prove that the knife was indeed a prohibited weapon. Although it may have been unnecessary to actually demonstrate how the knife worked to prove that the weapon was a prohibited one, we cannot conclude that the demonstration would have a tendency to inflame the jury to a point that their impartiality would be questioned. As pointed out by the appellant, the weapon was used only in a utilitarian manner. It was not brandished as a weapon. Nor was appellant charged with a violent crime. The only issues before the jury with regard to the knife were whether in fact appellant possessed the knife and whether or not it was a prohibited weapon. We see no way that the demonstration of how the knife worked would have an impact on the jury’s resolution of theses issues. Further, we do not see how the demonstration would affect the jury’s deliberation as to whether or not he possessed the Percocets with intent to deliver. Even if the jury believed he possessed the knife we do not believe the demonstration would have inflamed the jury to a point that it would have disregard the evidence regarding the possession charge. For a similar result, see Commonwealth v. Edney, 318 Pa.Super. 362, 464 A.2d 1386 (1983).

Appellant’s second argument asserts that the police involvement in the provision of the drugs for which he was found to illegally possess constitutes a violation of due process. The thrust of appellant’s argument is that the police department’s conduct in the present case was so involved in the actual criminal act that it constitutes outrageous conduct that offends due process. This attack on a conviction has its genesis in language of the United States Supreme Court’s decision in at least United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), and perhaps other cases, however, it is noteworthy that these United States Supreme Court cases, where there has been discussed such a resolution, have not themselves actually utilized such a theory, and, in fact, these cases have resulted in the upholding of the underlying criminal conviction. Be that as it may, some cases have utilized this theory to nullify a criminal conviction, including at least one decision by this court. However, upon review, we must conclude that the involvement in the present case is not so involved that it would rise to the level necessary to preclude conviction.

Appellant’s theory was utilized by this court in Commonwealth v. Mathews, 347 Pa.Super. 320, 500 A.2d 853 (1985). There, the police became so intimately involved in the operation of producing methamphetamine that they became, in essence, a partner in a criminal enterprise. Further, and perhaps most importantly, they provided key services and expertise without which the methamphetamine never could have been produced. This court found under those circumstances that the involvement was so great and crucial to the actual commission of the offense that it would offend due process to allow the conviction to stand. A similar result can be found at United States v. Twigg, 588 F.2d 373 (3rd Cir.1978), a case upon which appellant has heavily relied. In Twigg a police informant contacted an associate to discuss setting up a speed laboratory. DEA agents supplied the informant with chemicals, glassware and a farmhouse in which to set up the laboratory. The agents also made arrangements with chemical supply houses to offer additional necessary chemicals to the informant. Additionally they provided expertise and assisted in solving problems in setting up the operation. The Third Circuit found the convictions precluded under the due process clause. They concluded that, in effect, the government had generated new charges against the defendant merely for the sake of pressing criminal charges against him.

In contrast, clearly the involvement by police in conduct that would be considered illegal if engaged in by a lay person is not neccessarily an impediment to a conviction. For instance, the mere purchase of narcotics by an undercover police officer, if done by a lay person, or a police officer in a non-official matter, would in itself be criminal. However, when performed by the police officer in an official capacity there is no adverse consequences to the validity of the arrest or a resulting conviction. The engaging in such conduct is considered consistent with police duties and the “illegality” of the venture is immaterial for those limited purposes.

We do not find the facts of the present case to be similar to those found in Mathews and Twigg. The police involvement was no greater than contacting appellant about his interest in dealing Percocets, pursuant to information received from an informant, and the acquisition of the Pereocet tablets from a pharmaceutical outlet. The conduct neither presents a situation likely to induce an individual who was not pre-disposed to get involved in drug trafficking to involve oneself in drug trafficking activities, nor is the involvement so great that the offense occurred only through the help and enterprise of the police. Appellant indicated his willingness to traffic Percocets and, it is reasonable to conclude, could have easily proceeded to purchase Percocets from someone else had Officer Frank not offered them to appellant. The role played by the police was no different than what might have been played by any drug supplier and the offense could have easily been carried out without police involvement had appellant contacted another individual willing to supply the Percocets.

In contrast, we find the present case more similar to two cases decided by the United States Supreme Court. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), which may have spawned this theory, and Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). In Russell a police agent investigating a methamphetamine manufacturing operation approached the suspects and indicated he wanted to get involved in that trade and offered to supply a necessary ingredient in exchange for a portion of the finished drug. He then provided the chemical ingredient. In Hampton the Court considered petitioner’s contention that the police provided heroin through an informant to the petitioner who then sold it to the police agents. In both cases the Court found no violation of a constitutional right in upholding the convictions notwithstanding the involvement of the police. Thus, by comparing the various cases, we can conclude that where there is a substantial involvement in creating and facilitating a crime that likely would not have been committed otherwise, due process will require reversal of a conviction. However, the mere involvement of police in ascertaining an individual’s intent to commit a crime and providing the opportunity for the accused to commit the crime will not offend due process. Since the involvement of the police in the present case more closely approximated that of Russell and Hampton than Mathews and Twigg, we have no difficulty in affirming the conviction.

Judgment of sentence affirmed.

KELLY, J., concurs in the result.

      . In this context, we view appellant’s argument that Officer Frank violated the controlled substances act by possessing and distributing the Percocets without a license, as nothing more than a smokescreen to divert attention from the issue of relevance, whether or not appellant violated the act through his conduct. Appellant offers no case law, other than that dealing with the due process argument addressed in this opinion, to support the reasoning that a police officers violation of a criminal statute somehow offers an immunity to the accused. Clearly, the engaging of police in conduct considered illegal in a non-investigatory situation has not been considered improper in the context of an investigation.
      Furthermore, as Justice Rehnquist states in Hampton v. U.S., 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976), “[i]f the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law." (citations omitted). Of course, we offer this quote only to indicate the futility of appellant’s argument, not to suggest, in the least, that Officer Frank engaged in illegal activities beyond those necessary to perform his duties.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    582 A.2d 879
    COMMONWEALTH of Pennsylvania v. Daniel W. GOWAN, Appellant. COMMONWEALTH of Pennsylvania v. Ronnie M. McRAE, Appellants.
    Superior Court of Pennsylvania.
    Argued June 26, 1990.
    Filed Sept. 25, 1990.
    Reargument Denied Dec. 4, 1990.

      Ronnie M. McRae, pro se.
    Patrick T. Kiniry, Asst. Dist. Atty., Johnstown, for Com.
    Before McEWEN, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge:

The appellants, Ronnie M. McRae and Daniel W. Gowen, appeal pro se to this Court from judgments of sentence entered on July 5, 1988 following their convictions of disorderly conduct in violation of 18 Pa.C.S. § 5503(a)(2).

§ 5503. Disorderly conduct
(a) Offense defined.—A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(2) makes unreasonable noise;

On November 2, 1987, the appellants, preachers of the Anabaptists’ faith, were preaching and distributing religious literature to lunchtime passersby in Central Park, Johnstown, Pennsylvania. Appellants were arrested for disorderly conduct when they allegedly refused police officers’ warnings to lower their voices (H.T., 4/19/88, pp. 20-21). McRae and Gowen waived their rights to counsel and to jury trials (H.T. at 3-4). Accordingly, on April 19, 1988 the appellants’ consolidated cases were presented at a non-jury bench trial with appellants acting pro se. The court found the appellants guilty of disorderly conduct as a summary offense. Appellants’ motions for new trial and in arrest of judgment were denied by Order of June 7, 1988. Sentence was entered as to both appellants on July 5, 1988, ordering each to pay the costs of prosecution and a fifty dollar ($50) fine.

On appeal to this Court, McRae and Gowen argue three points of law: 1) their arrest was in violation of their first amendment right to exercise free speech; 2) the statute pursuant to which they were arrested and convicted is unconstitutionally vague and overbroad and 3) they were denied a fair and impartial trial.

Appellants’ first amendment argument has the greatest viability, and upon resolution of this issue, in conjunction with a determination of whether appellants’ exercise of their freedom of speech under the circumstances constitutes unreasonable noise, it becomes unnecessary to consider the other two issues on their merits. In passing, however, we must find that the statute is sufficiently specific to cover cases where the action of preachers is such as to create unreasonable noise, despite the first amendment right to freedom of speech. As to the third issue, our review of the record convinces us the appellants received a fair trial and that Judge Thomas Swope, throughout, was extremely solicitous of the appellants’ rights, particularly in view of the fact they refused proffered representation by counsel. Their allegation that they were not permitted argument or the right to present witnesses is totally unsupported by the record. Appellants waived their right to present witnesses as they offered no witnesses other than Mr. McRae, who testified extensively on his own behalf (Mr. Gowen declining to make a statement) and further advanced his position during cross-examination.

The focus of this case centers on the sufficiency of evidence to find, beyond a reasonable doubt, pursuant to section 5503(a)(2), the conduct engaged in by appellants constituted unreasonable noise. What constitutes unreasonable noise for purposes of the statute is related to the factual circumstances in each case. Standing on a sidewalk or in a public place reading from the bible and expressing dissatisfaction with the status quo are constitutionally protected exercises of free speech. Commonwealth v. Roth, 366 Pa.Super. 575, 531 A.2d 1133 (1987), appeal denied 518 Pa. 625, 541 A.2d 1137 (1988). Since the issue in this case turns on the unreasonableness of noise appellants created in exercising their first amendment right, we must carefully balance the fundamental right to free speech against the annoyance or inconvenience to other persons. The constitutionality of this statute has been considered by our Supreme Court in Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54 (1980), appl. dismissed 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124. Mastrangelo held that this section may not be used to punish anyone exercising protected first amendment rights. Thus it is incumbent upon the courts to differentiate between activity which is the exercise of free speech and unreasonable noise. It is incontrovertible that the exercise of free speech can go beyond constitutionally protected boundaries to the realm of prohibited and criminal behavior. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919).

The narrow issue in this case may be stated as whether preaching by appellants as part of their ministry, in a loud manner, in a public park, under the facts of this case, constitutes unreasonable noise prohibited by the statute.

The evidence considered by the court consisted of testimony by two police officers and a store owner. Officer Layton testified he was directed to the park during the noon hour by a superior and upon arrival found a crowd gathering across the street and traffic stopping to find out what was going on. Other persons in the park were moving to the other end of the park. The reason for the activity was the hollering and loud noise being made by the appellant, Gowan. Captain Petro directed him to lower his voice four times, and upon his failure to do so, he was placed under arrest (T.T. at 18-20). As to appellant McRae, he too began preaching in a loud manner and after being directed to lower his voice, he too was arrested when he refused to comply (T.T. at 20-21).

Officer Moran testified they had received complaints at the police station about loud noise and people waving their arms at Central Park. He was directed by Captain Petro to investigate and upon approaching the park, he heard and observed Mr. Gowan yelling at the top of his voice. There were people standing around watching and looking. Captain Petro, after warning Gowan, instructed officers to arrest him. According to Officer Moran, people were saying “aren’t you going to do anything about that” and “[i]t is about time somebody came over here” (T.T. at 29).

The testimony of William Felix, a store owner adjacent to the park, was that a customer remarked about the preaching. He could hear the voice inside the store—the door being open. The store was 150 to 200 feet away from appellants. He heard one preaching for about ten minutes, the other spoke for less than two minutes. Mr. Felix said the preaching was disturbing because it reduced the number of people who come to the park which, in turn, reduced his sale of ice cream cones. He observed some people moving away to the other side of the park while others watched and some laughed (T.T. at 33-35).

From the testimony presented, we cannot say the activity of the appellants, in the exercise of their right to free speech, created more than an annoyance to the people in and around the park. Other than the police, who went to the park in response to an unspecific complaint, only one person testified to being directly affected by the activity of appellants. The description of the activity of the people in and around the park is consistent with people exhibiting a range of reactions to the preaching, some being annoyed and moving away from it, others remaining to watch and listen, others laughing because of it. Based on all of the testimony, the conclusion reached by the trial court that the preaching constituted unreasonable noise cannot be supported beyond a reasonable doubt.

In assessing the effect of constitutionally protected activity such as preaching, it is clear that the same level of loudness or “noise,” in conducting an activity which must be tolerated or accepted, would be unacceptable if the party were conducting unprotected activity such as inciting to riot or harassing the police in their law enforcement function. Appellants make the point in their brief and arguments that preaching has been a historic and traditional exercise of religious freedom. We are accustomed to more sedate practices in confined areas for the most part and less accepting or tolerant of the mode of preaching practiced by appellants. The great speech to hundreds of thousands of people at the Elipse in Washington, D.C., by Martin Luther King, under electronic amplification, may have and did annoy many persons, but it could not have been treated as unreasonable noise for that reason. In this area, there is clearly a wide range of subjective aceeptancé or rejection of the message which colors the degree of tolerance people will have of the volume of delivery. When engaged in a constitutionally protected activity of the fundamental nature of freedom of speech, we must exercise restraint in prohibiting the activity lest we destroy the right. Unreasonable noise has been defined as “not fitting or proper in respect to the conventional standards of organized society.” Mastrangelo, sufra, citing Commonwealth v. Greene, 410 Pa. 111, 113, 189 A.2d 141, 143 (1963). Mastrangelo further held that one is guilty of disorderly conduct if, with the intent of breaching the public peace, he makes unreasonable noise. Thus, in the context of this case, when a protected first amendment right to free speech is implicated, it is necessary that the actor intend to breach the public peace by making unreasonable noise. We believe the Commonwealth has failed to establish by sufficient evidence that appellants are guilty of the offense. Mere annoyance to the public may not suffice. In International Society for Krishna Consciousness, Inc. v. Griffin, (W.D.Pa.) 437 F.Supp. 666 (1977), a county ordinance regulating distribution of religious literature and solicitation of contributions for religious purposes at airports was held to be unconstitutional. However, a city ordinance prohibiting use of any loud or offensive device or performance as means of advertising or attracting a crowd did not violate constitutional guarantees when applied to ministers preaching on streets through loud speakers. Hamilton v. Montrose, 109 Colo. 228, 124 P.2d 757 (1942).

Religious liberty as recognized and secured under constitutional provisions does not mean a license to engage in acts having a tendency to disturb the public peace under the form of religious worship, nor does it include the right to disregard those regulations which the legislature had deemed reasonably necessary for the security of public order. The right of an individual to propagate his religious views is not to be denied, but the right does not go so far as to permit one to commit a breach of the peace under the guise of preaching the gospel.

12 Am Jur2d, Breach of Peace and Disorderly Conduct, § 13.

Unquestionably, the municipality can regulate the degree to which appellants can use the park and the manner in which they can preach, so long as it is uniform and equally applicable to all similar use. From the testimony, it appears the park has been used for other religious, secular, political and entertainment purposes with varying degrees of loudness presented by the participants. It appears that treatment of the sound emanating as “unreasonable noise,” depends more upon the acceptance of the participants than on the actual noise produced. The very appearance of appellants, who wear beards and dress in the manner of Amish males, could have been the instigating factor, aside from their preaching, for unspecified complaints. Under these circumstances, we cannot assume that loudness in preaching, in the absence of definitive regulations concerning all similar activity, per se, amounted to a breach of the peace.

The evidence itself as detailed above established annoying behavior (to some) for a limited period of time, when the surrounding volume of noise from traffic and other activities was at the noon time peak. Since preaching itself was not proscribed, the testimony by the single witness and the police called to quell the preaching failed to establish the noise was unreasonable to the degree it constituted a crime.

Judgment of sentence vacated and appellants discharged.

Jurisdiction relinquished.

      . It should be noted the court, sua sponte, appointed counsel to sit in at trial to assist appellants should they so desire (H.T., 4/19/88, p. 10).

        State v. White, 64 NH 48, 5 A 828, affirming conviction under a statute prohibiting the beating of a drum within a town despite the defense that the act was committed in performance of religious worship.
      A man may believe in what kind of religion he pleases or in no religion, and as long as he practices his belief without a breach of the peace, he will not be disturbed. State v. Langston, 195 SC 190, 11 SE2d 1, cert den 311 US 685, 85 L ed 442, 61 S Ct 59.

        Delk v. Commonwealth, 166 Ky 39, 178 SW 1129, holding minister properly charged with breach of peace for using obscene and foul language in the pulpit.
      See also Louisiana v. Bottoms (Mo App) 300 SW 316, recognizing the rule, but holding that conduct amounting at most to overzealous religious worship, in that a pastor during religious services shouted at intervals "Amen,” "Praise God,” and "Glory hallelujah” in a tone of voice heard several blocks away, did not violate a city ordinance prescribing punishment for disturbing the peace by shouting in the nighttime.


author: HUDOCK, Judge:

text:
    582 A.2d 883
    Margery I. SHANKS, Appellant, v. Kelly J. ALDERSON and Andrea L. Alderson, his wife, Appellees.
    Superior Court of Pennsylvania.
    Argued June 6, 1990.
    Filed Sept. 28, 1990.
    Reargument Denied Dec. 4, 1990.

      Lucinda A. Bush, Washington, for appellant.
    Fred J. Sentner, Canonsburg, for appellees.
    Before KELLY, HUDOCK and MONTGOMERY, JJ.
   HUDOCK, Judge:

This is an appeal from the trial court’s granting of the Appellees’ motion for summary judgment. We reverse.

The Appellant, Margery I. Shanks, an 84-year-old widow, sold her Washington County home to Appellees, Kelly J. and Andrea L. Alderson. As part of the transaction, the Appellant took back a first mortgage. Later, the Appellees agreed to sell the property to a third party. By falsely representing to the closing officer that the Appellant had been paid the balance of the first mortgage, $27,918.97, the Appellees received a check from the closing officer in the amount of $38,112.60. The Appellees cashed the check and converted the money to their own use.

In an effort to recover the money, Appellant filed criminal charges and initiated the underlying civil action against the Appellees. When Appellees offered to make restitution, the Appellant agreed to a nol pros of the criminal charges. The Appellees also executed a release in the Appellant’s favor, releasing her from all liability for having brought the criminal charges. As part of this transaction, the Appellees paid the Appellant $29,919.77. Additionally, the release reserved the Appellant’s right to continue with her civil action already pending against the Appellees, expressly stating that the civil action “shall not be affected by [the] release.” In granting Appellees’ motion for summary judgment, the trial court viewed the Appellant’s acceptance of the funds as satisfying her claim for the compensatory damages claimed in the civil action. The trial court reasoned that since no viable claim for compensatory damages remained, and since punitive damages are only a derivative cause of action, the Appellant was foreclosed as a matter of law from recovering only punitive damages, costs and expenses, including attorney’s fees.

Appellant first argues that she is entitled to recover attorney’s fees, costs and expenses related to the litigation as consequential pecuniary damages because she was compelled to institute criminal and civil actions against the Appellees in order to recover from the Appellees’ defalcation. Despite the outrageous nature of the Appellees’ conduct, we are constrained to disagree. It is well established that a litigant is responsible for the fees of counsel employed by him. In re Wilbur’s Estate, 334 Pa. 45, 5 A.2d 325 (1939); Richter v. U.S., 190 F.Supp. 159 (E.D.Pa.1960), aff. 296 F.2d 509 (3d Cir.1961), cert. den’d. 369 U.S. 828, 82 S.Ct. 845, 7 L.Ed.2d 793 (1962). In Corace v. Balint, 418 Pa. 262, 265-67, 210 A.2d 882, 884 (1965), the Pennsylvania Supreme Court stated: "... [T]here can be no recovery for counsel fees from the adverse party to a cause, in the absence of express statutory allowance of the same ... or clear agreement by the parties ... or some other established exception____” (Citations omitted.) Unfortunately, there is no established exception to permit recovery of attorney fees in an action for fraud. Appellant acknowledges that such a recovery is not permitted by 42 Pa.C.S.A. § 2503. Nevertheless, the Appellant contends that her attorney’s fees are recoverable simply as an additional element of her consequential pecuniary losses. However, neither Appellant’s brief nor our own research indicate that attorney fees can properly be construed as such.

Appellant next argues that even if she is unable to recover her attorney’s fees and expenses as compensatory damages, she may nonetheless proceed to trial so as to recover punitive damages. In discussing the character of punitive damages, the Pennsylvania Supreme Court, in Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 101, 555 A.2d 800, 802 (1989), stated, “If no cause of action exists, then no independent action exists for a claim of punitive damage since punitive damages is [sic] only an element of damages.” (Emphasis in the original.) The right to punitive damages is merely an incident to a cause of action and not a cause of action in and of itself. See, Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). The Appellees argue that since the Appellant has settled her claim for compensatory damages, there is no cause of action from which the claim for punitive damages can derive. While the above authority makes clear that a claim for punitive damages may not be maintained absent an independent cause of action for actual damages, we are convinced that the facts of this case permit the Appellant to continue her civil action.

In support of their position, the Appellees rely on Hilbert v. Roth, 395 Pa. 270, 149 A.2d 648 (1959). The plaintiff-appellant in Hilbert sued two joint tortfeasors, claiming both compensatory and punitive damages. A mistrial was declared in favor of one of the defendants and the cases severed. The jury returned a verdict in favor of the plaintiff-appellant and judgment was entered thereon. Subsequently, the defendant, against whom the verdict was returned, paid the judgment. Accordingly, the plaintiff-appellant had the judgment marked satisfied. On petition of the second defendant, the case against him was ordered discontinued. On appeal, the plaintiff-appellant argued that the suit seeking both compensatory and punitive damages against the second defendant was still viable. Relying on its interpretation of Section 3 of the Contribution Among Tortfeasors Act of 1951, 12 P.S. § 2584 (repealed and replaced), the Pennsylvania Supreme Court found that satisfaction of a judgment recovered against one tortfeasor necessarily discharged the other tortfeasors from liability. Id., 395 Pa. at 273-75, 149 A.2d at 651. The Court also rejected the plaintiff-appellant’s alternative argument that although his claim for compensatory damages was precluded, he was entitled to procéed against the second tortfeasor solely for punitive damages. In doing so, the Court acknowledged that while actual damage was suffered, the plaintiff-appellant could not maintain an action for those damages. Clearly; the basis for the Court’s conclusion was the effect of the judgment against the first tortfeasor being satisfied—the second tortfeasor’s discharge from liability.

Such is not the case before us. It is difficult to conceive how the Appellees, by releasing the Appellant from civil liability to them, have discharged their own liability to her. The clear and unambiguous language of the agreement between the parties commands the opposite conclusion. As previously discussed, the agreement provided that “[n]othing herein contained shall act as a mutual release of the parties and the said MARGERY I. SHANKS shall be permitted to continue her civil action against the [Appellees] and others at No. 6153 of 1986, which action shall not be affected in any manner by this release.” Where, as here, the parties have specifically provided that their agreement will not act to affect one party’s liability to the other, we can find no compelling reason to effectively rewrite that agreement by holding otherwise. Moreover, we note a cursory review of the record demonstrates the Appellees have waived any payment of the debt as a defense to their liability by failing to raise the payment in new matter. See, Arabian Am. Oil Co. v. Kirby & Kirby, 171 Pa.Super. 23, 90 A.2d 410 (1952), Pa.R.C.P. 1030.

The Appellees’ claim that the Appellant cannot proceed to trial for punitive damages because such damages were not sufficiently plead is specious. In its Order dated July 13, 1989, the trial court granted the Appellant leave to amend her complaint to include a specific claim for punitive damages. Given the procedural history of this case, of which the Appellees were fully aware, we cannot say the trial judge abused his discretion in granting the Appellant leave to amend. The allegations of deliberate and willful conduct contained in the complaint and the language of the agreement preserving the Appellant’s civil action were sufficient to serve notice to the Appellees that they were exposed to civil liability, as well as a claim for punitive damages. Additionally, a panel of arbitrators, whose decision was appealed, included an award for punitive damages. Moreover, amendment of pleadings is liberally permitted and may even be done to conform the pleadings to the proof at trial. See, Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983).

Accordingly, that part of the order granting summary judgment in favor of the Appellees on the issue of counsel’s fees and expenses is affirmed. In all other respects, the order is reversed. The case is remanded for further proceedings. Jurisdiction is relinquished.

      . For clarification purposes, we note that the trial court, in its opinion, indicated the outstanding balance on the first mortgage was $17,918.97. However, throughout the pleadings and in their briefs to this Court, the parties do not dispute the fact that the balance owed was $27,918.97.

      . The release did not specify that this sum represented the balance due on the mortgage. However, the Appellant admits this fact in her affidavit opposing the Appellees’ motion for summary judgment.

      . Other than the principal due on the mortgage, plus interest, there were no other compensatory damage claims made by the Appellant in her complaint.

      . Appellant’s reliance on Millette v. Barrett, 10 Ches.Co.Rep. 361, 28 Pa.D.C.2d 372 (1962), is misplaced. s In Millette, the court found that attorney’s fees incurred in a prior action against a third party could be considered compensatory damages, not that the fees and expenses of the instant litigation itself were recoverable.

      . Of course, having admitted in her affidavit that the Appellees have paid her all amounts due under the mortgage, the Appellant is unable to actually recover that sum again. This may be best dealt with by the trial court molding any verdict" which may be returned against the Appellees on the issue of actual/compensatory damages. We hasten to add that there is not a scintilla of evidence before us to indicate that the Appellant harbors such an unjust intention. Our comment is for edification purposes only.

      . Contrary to the Appellees assertion, the trial court only granted leave to amend in response to Appellant’s request.


author: BECK, Judge: POPOVICH, Judge,

text:
    582 A.2d 886
    COMMONWEALTH of Pennsylvania v. Robert J. BERNOTAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 13, 1990.
    Filed Oct. 12, 1990.
    Reargument Denied Dec. 21, 1990.
    Robert Bernotas, pro se.
    Patricia E. Coonahan, Asst. Dist. Atty., Cheltenham, for Com.
    Before BECK, POPOVICH and HESTER, JJ.
   BECK, Judge:

The issue in this case is whether the service of notice rule applicable to summary proceedings, Pa.R.Crim.P. 80, or the general criminal service of notice rule, Pa.R.Crim.P. 9023, is applicable where the appellant appeals to the court of common pleas for a trial de novo from an adverse order before a district justice.

We hold that the applicable rule is the general criminal service rule. We therefore reverse the trial court which found that appellant was properly served where service was effectuated in accordance with the summary proceeding service rule.

On March 15, 1988, appellant Robert J. Bernotas was issued a citation for driving at an excessive speed, 75 Pa.Cons.Stat.Ann. § 3362 (Purdon 1977). Appellant entered a plea of not guilty, but failed to appear for his hearing before the district justice. He was found guilty in absentia of driving at a speed of 64 miles per hour in a 40 miles per hour zone. He appealed the decision to the Montgomery County Court of Common Pleas. On May 4, 1989, trial de novo was held, but appellant did not appear at the trial. The Commonwealth proceeded with its case, and the trial judge entered a verdict of guilty.

Appellant filed timely post-verdict motions, in which he argued that he is entitled to a new trial because he was not served with notice of his trial date. Rule 80 governs service of notice in summary proceedings and provides that trial notices “be served either personally upon the defendant or by mail to the defendant’s last known address.” The Commonwealth contends that it served appellant with notice of trial date by first class mail, and that under Rule 80, this was adequate. Appellant argues that Rule 9023, the general service of notice rule, applies.

Rule 9023 provides, in relevant part:

(b) Except as otherwise provided in these rules, service may be accomplished by:
(1) personal delivery of a copy to a party or a party’s attorney; or
(3) sending a copy to a party by certified or registered mail addressed to the party’s place of residence, business, or confinement.

In Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) (en banc), this court first announced that in a summary case, once an appeal from a decision of a district justice is taken to the court of common pleas, all general provisions of the criminal rules become applicable to the trial de novo unless specifically made inapplicable. Id., 288 Pa.Superior Ct. at 293, 431 A.2d at 1054. The Koch court reasoned:

Summary violations are by definition, minor offenses, punishable most often, only by fine. They justifiably should be summarily handled and the purpose and goal of the rules governing such proceedings is prompt adjudication before the issuing authority. However, once an appeal is taken to the Court of Common Pleas, this goal is clearly abrogated, and thereafter, all general provisions of the criminal rules become applicable to the trial de novo unless specifically made inapplicable.

Id. (citation omitted).

We find no language in Rule 9023 or the comments thereunder which would render this rule inapplicable. We therefore hold that when a summary case is appealed to the court of common pleas for trial de novo, the Commonwealth is required to serve notice of the trial date on the accused pursuant to Pa.R.Crim.P. 9023. See Commonwealth v. Hollingsworth, 524 Pa. 172, 569 A.2d 947 (1990) (Rule 1123, governing post-verdict motions, applies in summary cases tried in court of common pleas); Commonwealth v. Pringle, 304 Pa.Super. 67, 450 A.2d 103 (1982) (Rule 1403 A, requiring that reasons for dispensing with presentence report must be placed on record, applies to de novo trials after appeal from decision of district justice); Koch, 288 Pa.Super. 290, 431 A.2d 1052 (Rule 1123 applies in de novo trials held after appeal from summary conviction by district justice). But cf. Constantino v. Forest Hills Borough, 128 Pa.Commw. 407, 563 A.2d 953 (1989) (Rule 1100(a)(2) not applicable in summary cases due to express language in rule making it applicable only to court cases); Department of Envt. Resources v. Blosenski Disposal Serv., 110 Pa. Commw. 194, 532 A.2d 497 (1987) (Rule 307, which requires pretrial omnibus motions be filed within 30 days after arraignment, held inapplicable in de novo trials due to language in Note following Rule 307 indicating that the rule is effective as to cases in which an indictment or information is filed, and filing of indictment or information not required in summary cases tried de novo after decision of district justice).

Thus, in the instant case, under Rule 9023, the Commonwealth was required to serve appellant with notice of trial by personal delivery, or by registered or certified mail. Since service was made by first class mail, it was improper.

Judgment of sentence reversed and the case remanded for proceedings consistent with this opinion. Jurisdiction is Relinquished.

POPOVICH, J., files a dissenting statement.

POPOVICH, Judge,

dissenting.

I dissent. The Majority’s conclusion that it can find “no language” which would render Pa.R.Crim.P. 9023 inapplicable is belied by Pa.R.Crim.P. 86(g) which states that Rule 86 shall be the exclusive means of appealing from a summary conviction.


author: MONTEMURO, Judge: DEL SOLE, Judge,

text:
    582 A.2d 1054
    FIRST NATIONAL BANK OF NORTHEAST, Appellee, v. Walter D. GOOSLIN, Robert C. Efford and Flyin’ Goose Corp., Appeal of Norman J. WILCKE, Claimant.
    Superior Court of Pennsylvania.
    Argued June 12, 1990.
    Filed October 9, 1990.
    Reargument Denied Dec. 20, 1990.

      Marvin L. Wilenzik, Norristown, for appellant.
    James H. Thomas, Lancaster, for appellee.
    Before WIEAND, DEL SOLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

The appellant, Norman J. Wilcke (“Wilcke”), has appealed from the December 13, 1989 Order of the Court of Common Pleas of Lancaster County, denying his petition for special damages and counsel fees.

The record reveals that in 1983, Walter D. Gooslin, Robert Efford and the Flyin’ Goose Corporation, pledged a dredge as collateral for a loan issued to them by the First National Bank of Northeast (“Bank”), appellee herein. The debtors subsequently defaulted on the loan, and the Bank entered judgment against the debtors in the Court of Common Pleas of Chester County. Based upon this judgment, the Sheriff of Lancaster County levied upon the dredge, known as “Rhonda Crystal”, which was located within Lancaster County. After the levy was issued, Wilcke filed a property claim pursuant to Pa.R.C.P. 3202:

(a) A claim to tangible personal property levied upon pursuant to a writ of execution shall be in writing and substantially in the form provided by Rule 3258 and shall be filed with the sheriff prior to any execution sale of the property claimed.
(b) The claim shall be signed by the claimant or some one on his behalf, and shall set forth.
(1) a list of the property claimed sufficient to identify it;
(2) an estimate of the value of the property;
(3) a statement of the source of the claimant’s ownership of the property.

See Pa.R.C.P. 3202.

The Sheriff of Lancaster County subsequently determined that Wilcke was the owner of the Rhonda Crystal. The Bank objected to the Sheriff’s findings, thus commencing an action in interpleader. Evidentiary hearings were held in May and in June of 1987. On July 1, 1988, Wilcke filed a petition, requesting that the court order the Bank to pay the storage and maintenance costs associated with the Rhonda Crystal. R.R. at 3a. Thereafter, on January 30, 1989, the trial court upheld the Sheriff’s determination that Wilcke was the owner of the Rhonda Crystal. In so doing, the court rejected various theories offered by the Bank to support the position that Walter Gooslin was the owner of the Rhonda Crystal, i.e., abandonment by Wilcke and the existence of a lease-purchase agreement between Wilcke and Gooslin. The January 30,1989, Order by its terms does not award to Wilcke any monies for storage and maintenance costs. The trial court never ruled upon Wilcke’s July 1, 1988, petition seeking storage and maintenance costs. Neither the Bank nor Wilcke appealed from the January 30, 1989, Order.

Over three months after the entry of the Order confirming title to the Rhonda Crystal in Wilcke, Wilcke filed a petition again seeking payment for the costs of storing and maintaining the Rhonda Crystal during the above-described proceedings. Wilcke also sought, for the first time, counsel fees pursuant to 42 Pa.C.S.A. § 2503(5). The trial court denied Wilcke’s petition, ruling that Wilcke waived these claims by failing to appeal from the court’s Order of January 30, 1989. We affirm.

In regard to Wilcke’s claim for storage and maintenance costs, Wilcke filed a claim for these monies on July 1, 1988, using the same docket number, Execution No. 54, January 1985, as his then-pending property claim under Pa.R.C.P. 3202. By failing to seek a modification of the trial court’s Order of January 30, 1989, or to file an appeal therefrom, Wilcke waived his claim that the trial court erred when the court did not award the requested storage and maintenance costs. The January 30, 1989, Order determined the issue of ownership of the Rhonda Crystal as a final matter, thus resolving the dispute under Execution No. 54, January 1985.

Turning to Wilcke’s claim for counsel fees, we note that Wilcke did not request such fees until over three months after the entry of the January 30, 1989, Order. It is settled law that counsel fees cannot be sued for separately from the principal claim. “Separate suits constitute an impermissible splitting of but one cause of action.” Goldberg v. Goldberg, 306 Pa.Super. 504, 506, 452 A.2d 838, 839 (1982) (citation omitted). See also Kessler v. Old Guard Mutual Insurance Co., 391 Pa.Super. 175, 570 A.2d 569 (1990) (claim for prejudgment interest on prior judgment was waived where insureds made no attempt to amend the judgment, which had been entered by the trial court and affirmed on appeal, to include prejudgment interest); Mantell v. Mantell, 384 Pa.Super. 475, 559 A.2d 535 (1989) (separate action to recover counsel fees, where recoverable, is part of principal action and must be asserted therein). Wilcke’s contention that he had an absolute right to recover counsel fees pursuant to 42 Pa.C.S.A. § 2503(5) does not alter our conclusion that he cannot recover counsel fees in this action. Even assuming, arguendo, that Wilcke did have such a right to attorney fees, his failure to assert it in his action under Pa.R.C.P. 3202 results in a waiver of this claim. It is axiomatic that finality of judgment extends not only to matters actually determined but also to matters which could properly have been raised and determined therein.

Based upon the foregoing, we affirm.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

In this case we are asked to decide whether a claim for special damages and attorney’s fees in an interpleader action may be raised by a petition filed more than thirty days after the order establishing ownership of the disputed property has been entered, if there was no award of special damages or counsel fees at the time of the order, and no appeal from the order was taken.

The disputed property was a dredge named “Rhonda Crystal”, which was levied upon by the Sheriff of Lancaster County pursuant to a judgment obtained by First National Bank of Northeast [First National] against Walter D. Gooslin, Robert L. Efford and Flyin’ Goose Corporation. After the levy was issued, a property claim was filed by Norman J. Wilcke, Claimant. The Sheriff determined that Mr. Wilcke was the true owner of the dredge, (See, Rules 3202, 3204, Pa.R.C.P., 42 Pa.C.S.). First National filed an objection to the Sheriff’s finding, thus commencing an action in interpleader. Evidentiary hearings were held on May 21, 1987 and June 16, 1987, and on July 1, 1988, Mr. Wilcke petitioned the court to order First National to pay storage and maintenance charges. No ruling was made by the court on the July 1, 1988 petition for storage fees.

On January 30, 1989, over a year and a half after the evidentiary hearings were held, the Court of Common Pleas of Lancaster County overruled First National’s objection, and held that upon consideration of the parties briefs and the testimony given in 1987, the Sheriff’s finding in favor of Mr. Wilcke should stand. This order was docketed the same day, but no judgment was entered, and no mention was made of either counsel fees or special damages, such as storage and maintenance charges. Neither the plaintiff nor the claimant filed an appeal from this order within thirty days.

On May 10, 1989, over three months from the entry of the order in question, Mr. Wilcke filed an Application for Award of Special Damages and Counsel Fees to be payable by First National. The storage fees were calculated to be $5,829.00, and the attorney’s fees were calculated to be approximately $45,000.00. The trial court “declined to entertain claimant’s present application,” (Trial Court Opinion at 4, December 12, 1989), on the basis that, “any special damages or counsel fees to which the claimant is entitled shall be included in the judgment,” and “the Order of January 30, 1989 contained no provision for an award of either special damages or counsel fees, and no post-trial motions were filed with respect to it.” (Trial Court Opinion at 4, December 12, 1989).

The trial court relied on the language of Rule 3213, Pa.R.C.P., 42 Pa.C.S., and the unsuspended language of 12 P.S. 2371, to support its findings. Rule 3213 states:

Judgment
The judgment in the interpleader proceedings shall determine the title to the claimed property as among the parties to the interpleader, provide for the disposition of the proceeds of sale thereof, fix the amount of special damages sustained by the claimant if he has sustained his claim or the amount of any liability of the claimant if property has been delivered to him as to which he has not sustained his claim, and shall include such counsel fees as may be awarded by the court as part of the costs. 12 P.S. § 2371 states:
In all issues framed under this act [concerning interpleader proceedings], all the costs of the proceeding shall follow the judgment and be paid by the losing party as in other cases.

Appellant cites 42 Pa.C.S. § 2503 to support his contention that because counsel fees are a cost taxable to the losing party in an interpleader action, application for such fees may be made after the court has determined title to the claimed property.

42 Pa.C.S. § 2503 states in pertinent part:

Right of participants to receive counsel fees The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
(5) The prevailing party in an interpleader proceeding in connection with execution upon judgment.

I do not think the resolution of the problem concerning when a prevailing party must make application for attorneys fees and special damages is self-evident from the statutes cited. Nor do I find, after reading the cases cited in the briefs, and examining the case law in this area, that Pennsylvania case law provides sufficient guidance on this issue.

Accordingly, I would vacate the order denying Appellant’s application, and remand for determination of special damages and counsel fees. I believe that to deny the Appellant opportunity to present his claim under these circumstances is unfair. However, in order to guide practitioners in the future, I would hold that a claim for special damages and counsel fees must be filed prior to the court’s judgment determining ownership of the claimed property in an interpleader action. Failure to file such claims prior to the determination of ownership should result in waiver of the prevailing party’s right to claim such damages and fees. Following the court’s determination of ownership, a hearing, if necessary, should be held to determine the amount of special damages or counsel fees.

Furthermore, the court’s decision should track the relief mandated by Rule 3213, Pa.R.C.P., 42 Pa.C.S. Therefore, it should not only include a determination of the title, it should provide for the disposition of the proceeds of sale, if applicable; fix the amount of special damages sustained by the prevailing claimant, or the amount of any liability of the claimant if property has been delivered to which it has not sustained its claim, and determine the amount of the award of counsel fees. See, Rule 3213, Pa.R.C.P., 42 Pa.C.S. Therefore, I dissent.

      . Given our disposition of the case sub judice, we need not consider whether Wilcke has an absolute right to recover reasonable attorney fees under 42 Pa.C.S.A. § 2503(5). Even were this Court to decide that the holding of First National Bank of Allentown v. Koneski, 392 Pa.Super. 533, 573 A.2d 591 (1990), that an award of attorneys fees is mandatory where the debtor prevails in a confession of judgment action involving residential real estate, should be extended, we nevertheless conclude that this right, like many others can be waived.
      We do note that the language of 42 Pa.C.S.A. § 2503 employs the terms "shall" in setting forth the right of litigants to receive counsel fees:
      The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
      ******
      (5) The prevailing party in an interpleader proceeding in connection with execution upon a judgment.
      42 Pa.C.S.A. § 2503(5). See also Drum v. Leta, 354 Pa.Super. 448, 512 A.2d 36 (1986) (given the language in 41 P.S. § 407(b), that a debtor shall be entitled to recover fees and costs, an award of attorney fees is mandatory where debtor has successfully prevailed in causing judgment by confession against him to be stricken).


author: WIEAND, Judge: POPOVICH, Judge,

text:
    582 A.2d 1058
    In the Interest of Kathleen JERMAINE. Appeal of COMMONWEALTH.
    Superior Court of Pennsylvania.
    Argued March 29, 1990.
    Filed Oct. 22, 1990.
    Reargument Denied Dec. 20, 1990.

      Bradley Bridge, Asst. Public Defender, Philadelphia, for appellee.
    Deborah Fleisher, Asst. Dist. Atty., Philadelphia, for Com., appellant.

      Before WIEAND, BECK and POPOVICH, JJ.
   WIEAND, Judge:

Where a police officer, without show of force, approaches a juvenile in a public railroad station and asks her questions and she, without coercion, consents to a search of the bag which she is carrying, are the drugs found in her bag subject to suppression as the fruits of unlawful police conduct? The trial court held that the juvenile, because of her youth, “was not of an age where consent was freely given” and suppressed the drugs found in her bag. After careful review, we reverse.

In reviewing an appeal taken by the Commonwealth from an order suppressing evidence,

we must consider only the evidence of the defendant’s witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court’s findings of fact if those findings are supported by the record. Id. Factual findings wholly lacking in evidence, however, may be rejected. Id.

Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988). See also: Commonwealth v. James, 506 Pa. 526, 532-533, 486 A.2d 376, 379 (1985); Commonwealth v. Elliott, 376 Pa.Super. 536, 543, 546 A.2d 654, 657 (1988).

The only testimony at the suppression hearing was elicited from Ronald Bason, an Amtrak Police Officer. He said that on February 8, 1989, at or about 4:25 p.m., he had received information from Sergeant Ulrach, an Amtrak Narcotics Officer at Penn Station, in New York City, that a young female suspected of carrying narcotics, had boarded a train bound for Philadelphia’s 30th Street Station. The suspect was described as “a black female, approximately eighteen (18) to twenty-three (23) years old, one hundred twenty (120) pounds, 5'7", black medium length kinky hair, wearing a blue jean jacket, blue jean coat, black sneakers[,j ... a brown muslim type cap, carrying a black shoulder bag, and a white paper bag.” The basis for Ulrach’s suspicion was repeated by Bason as follows:

Officer Ulrach relayed to me he observed this individual at Penn Station, New York purchase a one-way ticket to 30th Street with cash. This individual then waited for the second call of the train before boarding.
Officer Ulrach told me this individual appeared to be nervous and concerned with his presence when she appeared to notice him standing there.
This individual then got up and walked to the train with Officer Ulrach following behind. As she was walking, she constantly kept looking over her shoulder at Officer Ulrach until she boarded the train. Upon sitting herself in the train, Officer Ulrach walked through the same car of the train which she was in. She remained in constant contact, eye contact, with him. Officer Ulrach exited the train and stood on the platform and positioned himself to her rear.
At that time, he observed her make a noticeable effort to keep eye contact with him.

When the train arrived at the 30th Street Station at 5:09 p.m., Bason, who was in plain clothes, was able to identify the suspect as she walked through the concourse. She was constantly looking around her and appeared to be very nervous. As she approached the Market Street exit, Bason, together with a second officer, walked up to her, identified himself as a. police officer and asked if he could speak with her. He described the subsequent events as follows:

She said, “Yeah.” I then asked her, “Did you just come in on a train,” and she said, “Yeah.”
I asked her, “Can I ask you where you came from,” and she said, “New York.” I asked her, “Do you have a train ticket or a receipt,” and she said, “No.” I asked her if she had any identification and she said no. I asked her what her name was and she said Kathleen Jermaine.
At this point she said, “Can you tell me why you’re stopping me because I did not do nothing.” At that time I informed her that I was a part of the Narcotics Interdiction Team, a team that was going to stop the flow of narcotics in Philadelphia by way of Amtrak trains.
I asked her, “Would you give me consent to search your bag,” and she just looked at me and she was also trembling very nervously. She did not say anything.
I then asked her again, “Miss, would you give me consent to search your bag.” She put her head down and said, “Yes,” and handed me her bag. At that point I opened the bag and I found a brown paper bag. Upon opening the brown paper bag, there was a plastic bag which contained a large amount of white powdery substance, whcch [sic] also was in the form of chunks.
Through my experience, I recognized this as possibly being cocaine.

I advised the defendant that she was under arrest. During Bason’s conversation with the girl, the second officer, who was also in plain clothes, stood about seven feet behind the girl.

The suppression court, in its opinion suppressing the contraband, reasoned that the police had lacked “reasonable suspicion” to believe that Jermaine was transporting drugs and that the stop, therefore, was unlawful. After the Commonwealth requested reconsideration of the court’s initial suppression order, the court concluded that the juvenile’s apparent consent to a search of her bag had been vitiated by her youth and the presence of the police. The Commonwealth, on appeal, argues that the encounter between Bason and Jermaine did not rise to an investigatory stop and did not implicate the juvenile’s Fourth Amendment rights. However, even if it did amount to an investigatory stop, the Commonwealth argues, Jermaine voluntarily consented to the search of her bag.

Not every encounter between a citizen and the police is so intrusive as to trigger the protections provided by the Fourth Amendment to the United States Constitution. See: Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Douglass, 372 Pa.Super. 227, 238, 539 A.2d 412, 417 (1988). There is nothing in the Constitution which prevents a policeman from approaching a person on a public street or in a public place in order to make inquiries of that person. Commonwealth v. Brown, 388 Pa.Super. 187, 190, 565 A.2d 177, 178 (1989). See also: Terry v. Ohio, supra at 34, 88 S.Ct. at 1886, 20 L.Ed.2d at 913 (White, J. concurring); Commonwealth v. Hall, 475 Pa. 482, 488, 380 A.2d 1238, 1241-1242 (1977); Commonwealth v. Jones, 474 Pa. 364, 370, 378 A.2d 835, 838 (1977); Commonwealth v. Williams, 298 Pa.Super. 466, 469, 444 A.2d 1278, 1279 (1982). “A seizure of a person sufficient to trigger the protections of the Fourth Amendment occurs ‘only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.’ ” Commonwealth v. Ellis, 379 Pa.Super. 337, 354, 549 A.2d 1323, 1331 (1988), quoting Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565, 572 (1988). See also: INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247, 255 (1984); Commonwealth v. Jones, supra 474 Pa. at 372-373, 378 A.2d at 840; Commonwealth v. Williams, supra 298 Pa. Super, at 469-470, 444 A.2d at 1279. Factors to be considered in determining whether an encounter with police rises to the level of a seizure of the person include “whether the officer makes a show of authority or exercises force, the officer’s demeanor and manner of expression, the location, and the content of any interrogatories or statements are relevant to the determination.” Commonwealth v. Williams, supra, 298 Pa.Superior Ct. at 470, 444 A.2d at 1279. See also: Commonwealth v. Jones, supra 474 Pa. at 371-372, 378 A.2d at 838-840.

The United States Supreme Court has elaborated on the difference between a “mere encounter” and a seizure of the person which implicates the Fourth Amendment in the following manner:

We adhere to the view that a person is “seized” only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” United States v. Martinez-Fuerte, 428 U.S. 543, 554, 49 L.Ed.2d 1116, 96 S.Ct. 3074 [3081 (1976)]. As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.
Moreover, characterizing every street encounter between a citizen and the police as a “seizure,” while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws. “Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503, 515, [10 L.Ed.2d 513, 83 S.Ct. 1336, 1344 (1963)].” Schneckloth v. Bustamonte, 412 U.S. [218], at 225, 36 L.Ed.2d 854, 93 S.Ct. 2041 [2046 (1973) ].
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. See Terry v Ohio, supra, at 19, n 16, 20 L Ed 2d 889, 88 S Ct 1868 [1879 n. 16], 44 Ohio Ops 2d 383; Dunaway v New York, 442 US 200, 207, and n 6, 60 L Ed 2d 824, 99 S Ct 2248 [2253, and n. 6 (1979)]; 3 W. LaFave, Search and Seizure 53-55 (1978). In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

United States v. Mendenhall, 446 U.S. 544, 553-555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509-510 (1980) (Opinion Announcing Judgment of the Court per Stewart, J.) (footnote omitted). See also: Michigan v. Chesternut, supra 486 U.S. at 573-574, 108 S.Ct. at 1979-1980, 100 L.Ed.2d at 571-572; INS v. Delgado, supra 466 U.S. at 215-217, 104 S.Ct. at 1762-1763, 80 L.Ed.2d at 254-255; Florida v. Royer, 460 U.S. 491, 497-498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236 (1983) (Opinion Announcing Judgment of the Court per White, J.); 3 LaFave, Search and Seizure, § 9.2(h) (2d ed. 1987). The Supreme Court has also observed that

police questioning, by itself, is unlikely to result in a Fourth Amendment violation. While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response. Cf. Schneckloth v. Bustamonte, 412 US 218, 231-234, 36 L Ed 2d 854, 93 S Ct 2041 [2049-2051] (1973). Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment. But if the person refuses to answer and the police take additional steps ... to obtain an answer, then the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure. United States v. Mendenhall, 446 U.S., at 554, 64 L.Ed.2d 497, 100 S.Ct. 1870 [1877]; see Terry v. Ohio, 392 U.S., at 21, 20 L.Ed.2d 889, 88 S.Ct. 1868 [1879], 44 Ohio Ops.2d 383.

INS v. Delgado, supra 466 U.S. at 216-217, 104 S.Ct. at 1762-1763, 80 L.Ed.2d at 255. See, e.g.: United States v. Garcia, 866 F.2d 147 (6th Cir.1989) (airport confrontation did not amount to seizure where police did not touch defendant, did not display weapons and did not raise voices or threaten defendant in any way); United States v. $25,000 U.S. Currency, 853 F.2d 1501 (9th Cir.1988) (encounter at airport not a seizure where police merely approached defendant, identified themselves, and asked him for identification and consent to search his bag); Gomez v. Turner, 672 F.2d 134 (D.C.Cir.1982) (mere status of police officer as figure of governmental authority does not, standing alone, constitute sufficient show of authority to transform encounter into seizure).

In analyzing Supreme Court decisions, LaFave has commented:

[A]n officer has not made a seizure if, for example, he interrogated “in a conversational manner,” “did not order the defendant” to do something or “demand that he” do it, did not ask questions which were “overbearing or harassing in nature,” and did not “make any threats or draw a weapon.” Even physical contact is acceptable if it is “a normal means of attracting a person’s attention.” On the other hand, an encounter becomes a seizure if the officer engages in conduct which a reasonable man would view as threatening or offensive even if performed by another private citizen. This would include such tactics as pursuing a person who has attempted to terminate the contact by departing, calling to such a person to halt, holding a person’s identification papers or other property, blocking the path of the suspect, physically grabbing and moving the suspect, and encircling the suspect by many officers____
“Offensive statements,” such as “unsupported outright accusations of criminal activity or suggestions that an innocent person would be willing to relinquish constitutional rights, are not irrelevant” in such an analysis. Indeed, it may be true in a more general sense that the subject matter of the conversation which ensues has some bearing upon whether it may be said that the person was subjected to a Fourth Amendment seizure. But this is not to say ... that “Fourth Amendment rights are implicated” whenever “the individual is stopped or detained because the officer suspects he may be personally involved in some criminal activity,” but not when “the officer acts for other proper reasons.”

3 W. LaFave, Search and Seizure, § 9.2(h) at pp. 412-415 and supp. p. 36 (2d ed. 1987 and 1990 Supplement) (footnotes omitted).

Under circumstances similar to those in the instant case, the Court of Appeals for the Third Circuit, in United States v. Thame, 846 F.2d 200 (1988), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 333 (1988), held that a police officer’s non-threatening conversation with a suspect in the lobby of a train station had not risen to the level of an investigatory stop prior to the suspect’s giving consent to a canine sniff of his luggage. The defendant had traveled from Fort Lauderdale, Florida, to Philadelphia by train, where agents had been alerted by others in Florida that the suspect was believed to be carrying drugs. Upon the suspect’s arrival in Philadelphia, agents approached him, asked him his name, walked with him and ultimately obtained his consent to accompany them to an office so that a dog could sniff his luggage. As a result of a sniff search, a warrant was obtained, the bag was opened, and cocaine was found. In concluding that the defendant had not been detained unlawfully by the police, the Court reasoned that the encounter in the lobby of the train station had not ripened into a seizure of the suspect prior to his consent to the canine sniff search. The officers had merely questioned the defendant regarding his identification, examined his train ticket and sought his consent to a search. Moreover, the police had not physically restrained the defendant in any way, nor had they attempted to control his movement by retaining his travel documents. Under these circumstances, the Court concluded, the suspect had not been seized; and, therefore, the police were not required to have reasonable suspicion before approaching the defendant and seeking his cooperation. See also: United States v. Alvarez-Sanchez, 774 F.2d 1036 (11th Cir.1985) (mere fact that agent identified self as INS agent did not transform encounter with defendant into a seizure); United States v. Notorianni, 729 F.2d 520 (7th Cir.1984) (fact that agent told defendant he was conducting a narcotics investigation prior to asking for consent to search luggage did not make encounter a seizure); Commonwealth v. Sanchez, 403 Mass. 640, 531 N.E.2d 1256 (1988) (fact that policeman told defendant he was conducting drug investigation and then asked for consent to search did not make the encounter a seizure). But see: United States v. Gonzales, 842 F.2d 748 (5th Cir.1988).

The rationale of these decisions from other jurisdictions is persuasive. Applying the same rationale to the instant case, we conclude that Officer Bason’s encounter with appellee did not rise to the level of a seizure of her person which invoked Fourth Amendment protections. Ba-son approached Jermaine and asked her if he could speak with her for a moment. There was no display of a weapon or other show of authority to suggest coercion. The record also does not disclose evidence that Bason or his companion had physically blocked appellee’s path or spoken to her in a threatening manner. Rather, the evidence suggests that Bason merely identified himself as a police officer and asked appellee if she had any travel documents or identification. Although identifying himself as a part of the Narcotics Interdiction Team, Bason did not tell appellee that she was suspected of criminal activity. Under these circumstances, it is clear that Jermaine had not been seized by the police before being asked to consent to a search of her bag. Therefore, Fourth Amendment guarantees were not implicated, and the suppression court erred when it held otherwise.

The suppression court erred further by determining that the juvenile, because of her age and a police presence, had not voluntarily consented to the search of her bag. Because Bason merely approached the juvenile and inquired if she would answer a few questions, it cannot be said that she was faced with a threatening or coercive police presence. The fact that the juvenile was sixteen and one-half years old at the time of the search, moreover, did not prevent her from giving voluntary consent to a search of her bag. “Although age is one element to acknowledge in ascertaining whether consent was given willingly, minority status alone does not prevent one from giving consent.” Commonwealth v. Maxwell, 505 Pa. 152, 162, 477 A.2d 1309, 1315 (1984), cert. denied, 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984) (consent to search house given by sixteen year old was valid where record was devoid of any evidence of emotional immaturity or mental instability and indicated to the contrary that decision was rational).

We have examined the record and have found no evidence to support a finding that Jermaine was emotionally or mentally immature so as to be incapable of giving valid consent for the police to search her bag. To believe otherwise is to discount entirely the fact that the juvenile was sufficiently mature to purchase a train ticket in New York and travel alone to Philadelphia. The fact that she did not refuse to talk with Bason, as well she might have done, does not permit a finding that she was so immature as to be unable to consent validly to a search of her handbag. When all the surrounding circumstances are considered, we are satisfied that the Commonwealth demonstrated that appellee’s consent had been voluntarily given and had not been the product of duress or coercion, either express or implied. See: Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Commonwealth v. Mamon, 449 Pa. 249, 255-256, 297 A.2d 471, 475 (1972). See also: Commonwealth v. Markman, 320 Pa.Super. 304, 467 A.2d 336 (1983); Commonwealth v. Lowery, 305 Pa.Super. 66, 74, 451 A.2d 245, 248-249 (1982).

The order suppressing the evidence seized from appellee is reversed, and the case is remanded for further proceedings. Jurisdiction is not retained.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting.

I respectfully dissent from the majority’s conclusion that “Officer Bason’s encounter with appellee did not rise to the level of a seizure of her person which invoked Fourth Amendment protections.” Majority opinion, p. 1063. Rather, I am convinced that a “seizure” did occur and that the police did not possess the requisite “articulable suspicion” to justify the stop of Kathleen Jermaine.

In United States v. Mendenhall, 446 U.S. 544, 554-555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509 (1980), the United States Supreme Court stated:

We adhere to the view that a person is “seized” only when, by means of physical force or a show of authority, his freedom of movement is restrained____
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave____

In Florida v. Royer, 460 U.S. 491, 497-498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236 (1983) (plurality), the Supreme Court explained:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. (Citations omitted) Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. (Citation omitted)

Instantly, I believe that Kathleen Jermaine was “seized” under the standards outlined in Mendenhall and Royer. Consider the facts: It is 5:30 p.m. on Wednesday, February 8, 1989, “rush-hour” at 30th Street Station in Philadelphia. Kathleen Jermaine, a juvenile who has just arrived from New York via Amtrak, is singled out of the crowded concourse by two plain clothes police officers. Officer Bason identifies himself as a police officer and asks if he may speak with her. The other officer moves to a position behind the young girl. After answering several questions, Kathleen questions, “Can you tell me why you’re stopping me because I did not do nothing.” To which Officer Bason responds, “I [am] a part of the Narcotics Interdiction Team, a team that [is] going to stop the flow of narcotics in Philadelphia by way of Amtrak trains.” Officer Bason then asks, “Would you give me consent to search your bag?” Kathleen, trembling and very nervous, did not respond. Again Officer Bason asked, “Miss would you give me consent to search your bag.” Only after the second request did Kathleen agree to the search and hand her bag to Officer Bason.

I am convinced that under the foregoing facts, a reasonable person would believe she was not free to leave. To hold otherwise would be to perpetuate the myth that a reasonable person, when confronted by police officers, actually believes she has the option of declining to listen to the officers and leaving without suffering further consequences. Although constrained to follow the judgment of the Supreme Court regarding what a reasonable person believes when confronted by a law enforcement officer, numerous Circuits of the United States Court of Appeal have recognized the artificiality of the Supreme Court’s test. See United States v. Thame, 846 F.2d 200, 202 (3rd Cir.1988), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L.Ed.2d 333 (1988) (“Although we have our doubts whether a reasonable person who is greeted by federal agents and asked for identification feels free to simply ignore the agents____”); United States v. Notorianni, 729 F.2d 520, 522 (7th Cir.1984) (“Maybe this is a wrong guess about what the average person feels in this situation____”); United States v. Cordell, 723 F.2d 1283, 1286 (7th Cir.1983), cert. denied 465 U.S. 1029, 104 S.Ct. 1291, 79 L.Ed.2d 693 (1984) (Swygert, J., concurring) (“I believe that as a factual psychological matter people who are stopped for questioning of this kind by police officers ... generally do not feel ‘free to leave’____”); see also Note, The Drug Courier Profile and Airport Stops: Reasonable Intrusions of Suspicionless Seizures?, 12 Nova L.Rev. 273, 284 (1987) (lower courts recognize “the artificiality of the test”). We are not so constrained and are free to use Article 1, § 8 of the Pennsylvania Constitution to guard individual privacy rights against unreasonable searches and seizures more zealously than the federal courts do under the United States Constitution. Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989); Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984), allocatur denied, 508 Pa. 319, 496 A.2d 1143 (1985).

When Kathleen asked Officer Bason why she was being detained, Officer Bason told her he was part of the Narcotics Interdiction Team. Thus, he implicitly informed Kathleen that she was the target of a narcotics investigation. This fact, combined with the other circumstances surrounding the stop of Kathleen, compels a conclusion that Kathleen was seized at the time Officer Bason revealed he was on the Narcotics Interdiction Team and requested to search her bag. Certainly, under the facts sub judice, a reasonable person (not to mention a juvenile) would not feel free to leave with the fear of formal detention. See Thame, 846 F.2d at 203 (“Statements which intimate that an investigation has focussed on a specific individual easily could induce a reasonable person to believe that failure to cooperate would only lead to formal detention.”); United States v. Gonzales, 842 F.2d 748 (5th Cir.1988) (a statement by a law enforcement officer that an individual is suspected of illegal activity is persuasive evidence that the Fourth Amendment has been implicated); United States v. Borys, 766 F.2d 304, 311 (7th Cir.1985), cert. denied, 474 U.S. 1082, 106 S.Ct. 852, 88 L.Ed.2d 893 (1986) (same); United States v. Berry, 670 F.2d 583 (5th Cir.1982) (en banc) (same).

The majority asserts that Kathleen was not informed that she was a suspect of a narcotics investigation, and therefore, compares this case to Thame, supra, where no investigatory stop was found when an officer approached an individual, identified himself as a member of the Narcotics Interdiction Team seeking cooperation from passengers from source cities and then requested a consent search. However, the facts of Thame, supra, differ in two significant respects. First, the defendant in Thame, supra, was an ex-police officer who undoubtedly had a greater awareness of his rights than Kathleen, a juvenile. Second, Thame was informed of his absolute right to refuse to talk to the officers or consent to a search of his bags; Kathleen received no such warning. Rather, immediately after informing her of his status as a narcotics investigator, Officer Bason requested consent for a search, and, when Kathleen did not respond, he again asked. I have little doubt that an individual faced with the same circumstances would believe he or she was the suspect of a drug investigation. And, I submit such belief is reasonable.

Since I would find that Kathleen was seized within the meaning of the Fourth Amendment, I must next determine whether reasonable suspicion for the stop existed. In Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984), the Supreme Court of the United States commented:

Certain constraints on personal liberty that constitute “seizures” for the purpose of the Fourth Amendment may nonetheless be justified even though there is no showing of “probable cause” if “there is articulable suspicion that a person has committed or is about to commit a crime.” Florida v. Royer, supra, 460 U.S., at 498, 103 S.Ct., at 1324 (opinion of WHITE, J.). Such a temporary detention for questioning in the case of an airport search is reviewed under the lesser standard enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and is permissible because of the “public interest involved in the suppression of illegal transactions in drugs or of any other serious crime.” Royer, supra, 460 U.S. [at] 498-499, 103 S.Ct. [at] 1324-1325.

Instantly, I agree with the court below that articulable suspicion for the stop did not exist. As stated by Judge Reynolds in his opinion in support of the decision to suppress the seized evidence:

Kathleen Jermaine, a slight 17 year-old black girl, purchased a one way ticket at Pennsylvania Station in New York City to Philadelphia (N.T. p. 4). The only suspicious conduct that the officer was able to articulate was that she appeared to be “nervous and concerned with his presence when she appeared to notice him standing there.” (N.T. p.4)
When the defendant went to her train, the officer followed her, maintaining constant eye contact with her (N.T. p. 5). This court believes that any young woman at Penn Station in New York City who was subjected to eye to eye contact by a man in civilian clothes and then followed to her train would be nervous and watchful. (Emphasis in original.)

Once at 30th Street Station, Officer Bason has offered no evidence of suspicious action except for Kathleen’s nervousness displayed once approached by the police. Certainly, the facts of this case do not rise to the level of reasonable suspicion, and the evidence seized as a result of the stop must be suppressed. Accordingly, I would affirm the suppression order of the court below.

      . The Commonwealth may appeal from a trial court’s order suppressing evidence when it certifies in good faith that the suppression order will terminate or substantially handicap its prosecution of the case. See: Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). In the instant case, it is clear that the suppression order will substantially handicap the Commonwealth’s prosecution.

      . These events were described in greater detail in the opinion of the Court as follows:
      Philadelphia Police Officer Michael McCue, assigned to the Drug Enforcement Agency, followed Thame up from the platform to the lobby of 30th Street Station while DEA Special Agent John McCarty followed still further behind with Amtrak Investigator Doonan. In the lobby, McCue walked alongside Thame, identified himself, and asked if he could speak with Thame. Thame said that he did not mind. As they continued walking, McCue asked Thame if he had just gotten off the train from Florida, and Thame said that he had. McCue then asked Thame his name, and Thame replied "Albert Thame.” McCue then asked if he could see his train ticket. At this point, the two stopped walking as Thame reached into his pocket and produced his train ticket, bearing the name "B. Kelly.” Thame, in response to a question from McCue, explained that he was using the ticket of a friend who had to fly back. McCue then asked for identification, and Thame produced a driver’s license and old police identification in his correct name. Agent McCarty then joined McCue and Thame and identified himself. McCue handed the ticket and the identification to McCarty, who looked it over and handed it back to Thame. McCarty then explained that they were working with the Narcotics Interdiction Unit, seeking cooperation from passengers from source cities such as Miami and Fort Lauderdale, and asked if Thame would mind if McCue and McCarty looked in the luggage Thame was carrying. Thame declined, stating that he had "sensitive material” in his bag. McCarty replied that that was fine, that he had an absolute right to refuse, but asked whether it would be okay if they conducted the search in a more private place. Thame again declined. McCarty then asked whether Thame would object to a sniff search of the air around the bag by a dog, as this would be less intrusive. Thame agreed. McCarty then asked if Thame would mind accompanying them to the Amtrak police office, explaining that this would be more private and out of the way. Thame carried his own bag to the office. The entire conversation took about two minutes, and the walk to the Amtrak police office took less than a minute. At the office, a sniff search took place, and the dog indicated that there were drugs in Thame’s bag. The sniff search was repeated in another room. A warrant was then obtained, the bag was opened, and cocaine was found.

        United States v. Thame, supra at 201-202.

      . In his concurring opinion in Mendenhall, Mr. Justice Powell, joined by Mr. Chief Justice Burger and Mr. Justice Blackmun, stated, "For me, the question of whether the respondent in this case reasonably could have thought she was free to 'walk away' when asked by two Government agents for her driver’s license and ticket is extremely close.” Mendenhall, 446 U.S. at 560 n. 1, 100 S.Ct. at 1880 n. 1. Thus, Mr. Justice Powell appears to recognize the folly in assuming reasonable persons feel free to disregard an officer’s questions and walk ' away.

      . I note that Officer Bason never informed Kathleen that she was free to leave in response to her question of "Can you tell me why you’re stopping me ... ?” This is further evidence that Kathleen did not believe she was free to go. Similarly, a reasonable person would not believe she was free to leave when after questioning the reasons for the stop, the officer did not give a responsive answer but instead informed her that he was investigating narcotics trafficking.

      . One wonders how many times a day police officers stop and intrude upon the privacy rights of innocent travelers without finding contraband. One must remember cases like this only come before us when drugs are found. This fact should not be used to justify an otherwise unreasonable invasion of privacy.