author: POPOVICH, Judge: WIEAND, Judge,

text:
    577 A.2d 1375
    COMMONWEALTH of Pennsylvania, Appellee, v. Frank J. FERRETTI, Appellant.
    Superior Court of Pennsylvania.
    Argued March 6, 1990.
    Filed July 10, 1990.

      Lawrence F. Clark, Jr., Hersey, for appellant.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This case involves an appeal from the judgment of sentence (aggregating 5-14 years imprisonment) for burglary, simple assault and recklessly endangering another person by the appellant, Frank J. Ferretti. We affirm.

The evidence, to be viewed in a light most favorable to the Commonwealth as the verdict-winner, reveals that in October of 1987, Joanne Jennings met the appellant at her sister’s home. The next day, the two went on a date. This relationship lasted until Thanksgiving of 1987. At that time, Ms. Jennings informed the appellant she did not want to see him anymore. The appellant refused to accept this fact, and he continued to have contact with Ms. Jennings until December 31, 1987.

On December 30th, Ms. Jennings was phoned by the appellant after 8:00 p.m. He wanted to have a New Year’s Eve party at her apartment. She told the appellant she wanted nothing more to do with him. With this, the appellant threatened Ms. Jennings over the phone that he had a gun and he wanted to come to her apartment. Ms. Jennings hung up on the appellant.

At approximately 1:30 a.m. on the 31st of December, 1987, there was a knock on Ms. Jennings’ apartment door. She was in bed at the time and did not answer. Eventually, the appellant broke into the apartment by knocking the front door off its hinges and breaking the lock in the process.

The appellant called out to Ms. Jennings, and, when she saw he was carrying a sawed-off shotgun, she became frightened and did not respond. The appellant, going from room to room, made his way to the bedroom. When Ms. Jennings asked what the appellant was doing in her apartment, he “just started getting really rough” with her. He began hitting Ms. Jennings, and as she told it in court:

... he was hitting me on the head with his hand, and this was going on ... for a couple [of] hours[, i.e.,] hitting me and ripping my clothing off and pulling my hair out ... I had a lot of bald spots in my head because of that at the time....

The appellant refused to accept the termination of the relationship. To exhibit his displeasure with Ms. Jennings, the appellant placed the loaded shotgun at her neck and said: “it would be very easy ... to pull the trigger back, that [Ms. Jennings] could just be blown away.” The appellant also threatened to kill Ms. Jennings. She was very scared, and she thought the appellant was going to shoot her.

The ordeal of physical and mental abuse lasted for several hours and culminated with the appellant forcing Ms. Jennings to have sex with him. Once the appellant had fallen asleep, the victim managed to escape to a friend’s house, who, upon the victim’s arrival, observed that the victim’s “face was bruised, her hair was a mess. She was crying hysterically”, and her hair had been pulled out in spots. The victim told her friend that the appellant had assaulted her. The police were called to report the incident.

The police drove to the victim’s apartment with a warrant for the appellant’s arrest. He was not on the premises, but the police did find the appellant’s belt on an end table and his underwear, with the initials “FF”, were found on the floor next to the victim’s bed.

On a tip from an anonymous informant, who at trial was stipulated by the prosecution and the defense to have been the victim’s sister, the police went to Kathy Hummel’s apartment to look for appellant. However, at first Hummel denied that the appellant was on her premises and demanded that the police secure a search warrant before entering the apartment. The police did obtain a search warrant and executed it during the evening of January 1, 1988. When the police entered Hummel’s apartment, the appellant was found having a beer at the kitchen table. He, was arrested and placed in handcuffs. A search of the apartment produced a sawed-off shotgun under the sofa in the living room. This was seized.

Prior to trial, a hearing was conducted in which the appellant sought to suppress the evidence seized on the grounds that the search warrant was defective. The motion to suppress was denied, and, following a three-day trial, the appellant was found guilty as charged and sentenced. This appeal ensued.

The appellant raises nine issues for our consideration, six of which center upon the validity of the search warrant, and found by the court below not subject to attack by the appellant because he lacked standing to assail it.

We deal, first, with the question- of “standing”. The Fourth Amendment guarantees that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The shotgun seized was stated to belong to neither the appellant nor Kathy Hummel. Hence, the appellant can have personal standing only if, as to him, the search violated the “right of the people to be secure in their ... houses____”

The United States Supreme Court has held that the Fourth Amendment does not shield only those who have title to the searched premises. See Mancusi v. DeForte, 392 U.S. 364, 367, 88 S.Ct. 2120, 2123, 20 L.Ed.2d 1154 (1968). In fact, beginning with Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), it was held that “anyone legitimately on [the] premises where a search occurs may challenge its legality ... when its fruits are prepared to be used against him.” 362 U.S. at 267, 80 S.Ct. at 734. It is this language adopted as a criterion for establishing standing in Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265 (1976), cert. denied, 426 U.S. 940, 96 S.Ct. 2658, 49 L.Ed.2d 392 (1976), which is seized by the appellant as the basis for claiming his entitlement to challenge the validity of the search warrant.

Given that in this jurisdiction we have turned to federal law to develop a framework upon which “standing” to contest a search and seizure has evolved, it is only logical to examine the present status of that same body of law to guide us now, for there is no case in Pennsylvania similar to the one before us. Having said that, we observe that in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the United States Supreme Court had occasion to re-examine Jones in the context of a warrantless search of an automobile, and the seizure of a sawed-off shotgun and shells from its interior.

The petitioners in Rakas were passengers in the vehicle stopped and searched because it matched a get-away vehicle used in the robbery of a clothing store. Neither petitioner claimed ownership of the vehicle or the weapon and the shells seized. When the petitioners attempted to exclude such evidence from trial, the court denied the motion to suppress because they lacked standing. This decision was affirmed by the intermediate appellate court and leave to appeal to the state supreme court was denied.

Before the United States Supreme Court, the petitioners argued, in the alternative, that they had standing to object to the search under Jones because they were “legitimately on [the] premises” at the time of the search. In analyzing this argument, the Court made it clear that the label we affix to our right to challenge {i.e., “standing”,) in a motion to suppress is not of paramount importance. Rather, the substantive question was one of whether the proponent of the motion to suppress had his/her own Fourth Amendment rights infringed by the search and seizure which is sought to be assailed.

Since “ ‘Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted’ ”, the Court stated: “it [wa]s proper to permit only defendants whose Fourth Amendment rights ha[d] been violated to benefit from the [exclusionary] rule’s protections.” 439 U.S. at 133, 134, 99 S.Ct. at 425, 426 (Citations omitted; Footnote omitted).

To effectuate the true intent of the Fourth Amendment— to protect the rights secured thereby—does not require that it be subsumed within the notion of “standing”. On the contrary, it was the Court’s belief that the definition of those rights be more properly placed within the purview of substantive Fourth Amendment law than within that of standing. As a result, the Court dispensed with the rubric of “standing” used in Jones, 439 U.S. at 141, 99 S.Ct. at 429, and, in doing so, rephrased the petitioners’ claim, that their presence in the automobile was comparable to that of the defendant being in another’s apartment in Jones, to one of whether their Fourth Amendment (“reasonable expectation of privacy”) right had been violated by the search.

The reassessment of the concerns of one’s rights, to be free from unwarranted government intrusion, by excising certain phraseology from the triggering mechanism permitting Fourth Amendment inquiry would do little to undermine the scope of interest protected by the Fourth Amendment, so stated the Court. In particular, as is applicable here, the Court wrote:

... the Jones statement that a person need only be “legitimately on premises” in order to challenge the validity of the search of a dwelling place cannot be taken in its full sweep beyond the facts of that case.
Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), provides guidance in defining the scope of the interest protected by the Fourth Amendment. * * * the Court in Katz held that capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.
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... the phrase “legitimately on premises” has not been shown to be an easily applicable measure of Fourth Amendment rights so much as it has proved to be simply a label placed by the courts on results which have not been subjected to careful analysis. We would not wish to be understood as saying that legitimate presence on the premises is irrelevant to one’s expectation of privacy, but it cannot be deemed controlling.

439 U.S. at 143, 147-148, 99 S.Ct. at 430, 432-433 (Citations omitted; Footnotes omitted; Emphasis added).

In light of the meaningful exegesis of the Fourth Amendment doctrine by the Rakas Court, instead of being concerned with arcane distinctions developed in property and tort law between guests, licensees, invitees, and whether one is “legitimately on premises”, to evaluate a claimed Fourth Amendment violation, our focus of attention should be upon whether the appellant had a legitimate expectation of privacy in the apartment (in particular, under the sofa) where the shotgun was found pursuant to a warrant for the appellant’s person and the weapon seized. Id.; see also United States v. Payner, 447 U.S. 727, 731, 100 S.Ct. 2439, 2444, 65 L.Ed.2d 468 (1980); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979); Mancusi, supra, 392 U.S. at 368-369, 88 S.Ct. at 2123-2124. By so holding, we have in no sense abandoned the four-pronged test adopted in Commonwealth v. Treftz, supra, to establish “standing”. Quite the contrary is true. We have, like the United States Supreme Court in Rakas, refocused our thinking in Fourth Amendment cases from one of preoccupation with nomenclature (e.g., “legitimately on the premises” and/or “standing”) to one of whether the defendant’s rights were violated by the allegedly illegal search or seizure. See United States v. Salvucci, 448 U.S. 83, 87 n. 4, 100 S.Ct. 2547, 2551 n. 4, 65 L.Ed.2d 619 (1980). Even our own Supreme Court in Treftz concluded that the defendant’s assault on the search and seizure in question would fail because there was no reasonable expectation of privacy in the field searched by police and from which a body was recovered. Standing was an issue.

The means by which we traverse the contours of the Fourth Amendment, in search of a violation of its core rights, is not to be achieved by the use of phraseology, e.g., “legitimately on the premises” or “standing”. Rather, the course we pursue in applying the Fourth Amendment is guided by markers requiring our determination of “whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable/ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” Smith v. Maryland, supra, 442 U.S. at 740, 99 S.Ct. at 2580 (Citations omitted). This determination is to be accomplished upon a totality of the circumstances. See also Commonwealth v. Sell, 504 Pa. 46, 55, 470 A.2d 457, 466 (1983), wherein the Supreme Court expressed concern that the reasonable expectation of privacy standard might not provide sufficient protection against wrongful police conduct. As a result, the Sell Court retained the “automatic standing” doctrine discarded by the United States Supreme Court, see note 5, infra, to allow one charged with a possessory offense to challenge the seizure of such evidence on Article I, Section 8 grounds of the Pennsylvania Constitution. See Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986); Commonwealth v. Bennie, 352 Pa.Super. 558, 560 n. 3, 508 A.2d 1211, 1213 n. 3 (1986); Commonwealth v. Balch, 328 Pa.Super. 71, 75, 476 A.2d 458, 462 (1984) and compare with Commonwealth v. Bulling, 331 Pa.Super. 84, 93 n. 11, 480 A.2d 254, 263 n. 11 (1984).

Sell in no sense, however, sounded the death knell for the “reasonable expectation of privacy” criterion, which is to be used in tandem with “whether that expectation is one that society is prepared to recognize as reasonable”, in deciding whether one’s privacy has been violated in all other instances. See, e.g., Commonwealth v. Blystone, 519 Pa. 450, 456, 549 A.2d 81, 87 (1988) (Conversation electronically recorded between the defendant and a police informant was assessed as to its suppressibility under Article I, Section 8’s reasonable expectation of privacy criterion, as well as whether the expectation was one that society was prepared to recognize as reasonable). Accord Commonwealth v. Evans, 488 Pa. 38, 40, 410 A.2d 1213, 1215 (1979) (Overnight guest had a legitimate expectation of privacy so as to have standing to object to admission of physical evidence seized from host’s apartment); Commonwealth v. Kean, 382 Pa. Super. 587, 591, 556 A.2d 374, 378 (1989); Commonwealth v. Harvey, 348 Pa.Super. 544, 547-549, 502 A.2d 679, 682-684 (1985); Commonwealth v. Pinkins, 343 Pa.Super. 44, 52, 493 A.2d 1365, 1373 (1985); Commonwealth v. Cihylik, 337 Pa.Super. 221, 224, 486 A.2d 987, 990 (1985).

We have been presented with no persuasive argument to expand Sell’s discontinuance of the “reasonable expectation of privacy” in a possessory offense context to one where “unreasonable” government intrusion is the focal point of inquiry once “standing” is established. See Minnesota v. Olson, — U.S. -, -, 110 S.Ct. 1684, 1688, 109 L.Ed.2d 85 (1990) (Defendant’s status’ as an overnight guest was alone sufficient to show that he had an expectation of privacy in the home of a friend that society was prepared to recognize as reasonable, and, thus, accorded him standing to challenge successfully evidence seized and introduced against him at trial so as to warrant the awarding of a new trial); Evans, supra.

At bar, we had testimony that the appellant arrived at Kathy Hummel’s apartment between 5:00-5:30 p.m. on January 1, 1988, with two six packs of beer, but no shotgun was brought into the apartment by the appellant. The two remained in the apartment until the police arrived at 11:00 p.m., and they were directed by Hummel to obtain a warrant as a condition precedent to entering her apartment to arrest the appellant and look for a weapon used in the assault of Ms. Jennings.

It was Ms. Hummel’s testimony that the appellant, albeit he did not have a key to her premises, had been found, on occasion, in her apartment upon her arrival home. She did not object to this because, as she stated, “he’s allowed to come in”. They were friends, the appellant knew her daughter and Hummel and the appellant had a brother/sister relationship. Yet, Ms. Hummel did remark that when she left the apartment complex, as compared to just going to do her laundry one-half block away from the building where she lived, she would lock her door.

Based on the record before this Court, we can state that the appellant had no interest in connection with the searched premises that gave rise to “ ‘a reasonable expectation [on his part] of freedom from government intrusion’ upon those premises.” Compare Combs v. United States, 408 U.S. 224, 227, 92 S.Ct. 2284, 2286, 33 L.Ed.2d 308 (1972), quoting Mancusi, supra, 392 U.S. at 368, 88 S.Ct. at 2123; see also State v. Taylor, 298 N.C. 405, 259 S.E.2d 502 (1979). We have been presented with no case law by the appellant requiring us to hold otherwise. As such, we find that the court below was correct in concluding that it was unnecessary to decide whether the search of Ms. Hummel’s apartment might have violated the rights secured to the appellant, be they via the Fourth and Fourteenth Amendments or our own state constitution (Article I, Section 8). In other words, there has been no showing that the government engaged in any illegal conduct offensive to the appellant’s right of privacy. In this context, it must be recalled that the appellant did not assert a proprietary or possessory interest in the apartment searched or the weapon seized. Compare Sell, supra (ownership or possession of item seized is adequate to entitle owner or possessor thereof to invoke the constitutional protection of Article I, Section 8 by way of a motion to suppress its use as evidence). The appellant lived with his father, had none of his clothing at Ms. Hummel’s apartment and did not have a key to gain entry when the owner was not at home or on the apartment complex grounds. Nor was there any evidence that the appellant had in the past or recently remained overnight on the premises belonging to Ms. Hummel. Thus, we are hard-pressed to assign a reasonable expectation of privacy in the apartment to the appellant, who appeared to be no more than a mere friend, guest or visitor of Ms. Hummel on the evening in question. As such, the appellant had no legitimate expectation of privacy there. See Rafeas, supra; State v. Hanna, 542 A.2d 794, 802 (Del.Super.1988), and compare with State v. Reddick, 207 Conn. 323, 541 A.2d 1209, 1212 (1988). Accordingly, we will affirm the actions of the court below.

Judgment of sentence affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring.

I concur in the decision of the majority to affirm the judgment of sentence. However, I am unable to agree that appellant lacked standing to contest the seizure by police of a sawed-off shotgun which was lying beneath a sofa in the apartment of a friend in which appellant was present as a guest. I would affirm because my review of the record fails to disclose any basis for concluding that the gun was seized as a result of an unlawful search.

In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), on which the majority relies, the Supreme Court of the United States appears to have limited the requirements for standing where one is lawfully present in property of another. The Court there said:

In Jones [v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (I960),] petitioner was present at the time of the search of an apartment which was owned by a friend. The friend had given Jones permission to use the apartment and a key to it, with which Jones had admitted himself on the day of the search. He had a suit and shirt at the apartment and had slept there “maybe at night,” but his home was elsewhere. At the time of the search, Jones was the only occupant of the apartment because the lessee was away for a period of several days. 362 U.S., at 259, 4 L.Ed.2d 697, 80 S.Ct. 725 [730], 78 A.L.R.2d 233. Under these circumstances, this Court stated that while one wrongfully on the premises could not move to suppress evidence obtained as a result of searching them, “anyone legitimately on premises where a search occurs may challenge its legality.” Id., at 267, 4 L.Ed.2d 697, 80 S.Ct. 725 [734], 78 A.L.R.2d 233. Petitioners argue that their occupancy of the automobile in question was comparable to that of Jones in the apartment and that they therefore have standing to contest the legality of the search--or as we have rephrased the inquiry, that they, like Jones, had their Fourth Amendment rights violated by the search.
We do not question the conclusion in Jones that the defendant in that case suffered a violation of his personal Fourth Amendment rights if the search in question was unlawful. Nonetheless, we believe that the phrase “legitimately on premises” coined in Jones creates too broad a gauge for measurement of Fourth Amendment rights. For example, applied literally, this statement would permit a casual visitor who has never seen, or been permitted to visit the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search. Likewise, a casual visitor who walks into a house one minute before a search of the house commences and leaves one minute after the search ends would be able to contest the legality of the search. The first visitor would have absolutely no interest or legitimate expectation of privacy in the basement, the second would have none in the house, and it advances no purpose served by the Fourth Amendment to permit either of them to object to the lawfulness of the search.
We think that Jones on its facts merely stands for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place. .See 362 U.S., at 263, 265, 4 L.Ed.2d 697, 80 S.Ct. 725 [732], 78 A.L.R.2d 233. In defining the scope of that interest, we adhere to the view expressed in Jones and echoed in later cases that arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control. Id., at 266, 4 L.Ed.2d 697, 80 S.Ct. 725 [733], 78 A.L.R.2d 233; see Mancusi v. DeForte, 392 U.S. 364, 20 L.Ed.2d 1154, 88 S.Ct. 2120 (1968); Warden v. Hayden, 387 U.S. 294, 18 L.Ed.2d 782, 87 S.Ct. 1642 (1967); Silverman v. United States, 365 U.S. 505, 5 L.Ed.2d 734, 81 S.Ct. 679, 97 A.L.R.2d 1277 (1961). But the Jones statement that a person need only be “legitimately on premises” in order to challenge the validity of the search of a dwelling place cannot be taken in its full sweep beyond the facts of that case.
Viewed in this manner, the holding in Jones can best be explained by the fact that Jones had a legitimate expectation of privacy in the premises he was using and therefore could claim the protection of the Fourth Amendment with respect to a governmental invasion of those premises, even though his “interest” in those premises might not have been a recognized property interest at common law. See Jones v. United States, 362 U.S., at 261, 4 L.Ed.2d 697, 80 S.Ct. 725 [731], 78 A.L.R.2d 233.

Id. 439 U.S. at 141-143, 99 S.Ct. at 429-430, 58 L.Ed.2d at 399-402 (footnotes omitted). See generally: 4 W. LaFave, Search and Seizure, §§ 11.3(b) and (c) (1987).

Instantly, Kathy Hummel testified that she and appellant were close friends and that they had “like a brother/sister relationship for the five years we’ve known each other.” Her testimony also disclosed that appellant had been a frequent visitor in her apartment and was allowed to enter the apartment even when she was not at home. On the night when the police searched the apartment, appellant had arrived at or about 5:30 p.m., and he and Hummel had been sitting at the kitchen table talking, drinking beer and listening to music. The police search of the apartment was not made until 11:00 p.m., approximately five and one-half (5V2) hours after appellant’s arrival. Under these circumstances, I would hold that appellant had a legitimate expectation of privacy in the apartment of Kathy Hummel so as to confer upon him standing to contest the police seizure of the sawed-off shotgun as a violation of the Fourth Amendment. See: Commonwealth v. Evans, 488 Pa. 38, 43, 410 A.2d 1213, 1215 (1980).

Appellant’s lawful presence on the premises was also sufficient to confer upon him standing pursuant to Article I, section 8, of the Pennsylvania Constitution. The test for standing in this Commonwealth is that adopted by the Pennsylvania Supreme Court in Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265 (1976), cert. denied, 426 U.S. 940, 96 S.Ct. 2658, 49 L.Ed.2d 392 (1976). This test requires that

a defendant must allege one of the following “personal” interests in order to establish standing: (1) his presence on the premises at the time of the search and seizure; (2) a possessory interest in the evidence improperly seized; (3) that the offense charged include as an essential element of the prosecution’s case, the element of possession at the time of the contested search and seizure; or, (4) a proprietory or possessory interest in the searched premises.

Id., 465 Pa. at 621-622, 351 A.2d at 268 (footnotes omitted) (emphasis added). See also: Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Commonwealth v. Peterkin, 511 Pa. 299, 309-310, 513 A.2d 373, 378 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987).

In Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), the Supreme Court held, as a matter of state constitutional law, that a person having a possessory interest has automatic standing to contest a search and seizure of evidence. In reaching this decision, the Sell Court refused to adopt the rationale of the United States Supreme Court in Rakas v. Illinois, supra, and instead, elected to afford citizens greater protection under the Pennsylvania Constitution, explaining as follows:

We decline to undermine the clear language of Article I, section 8 by making the Fourth Amendment’s amorphous “legitimate expectation of privacy” standard a part of our state guarantee against unreasonable searches and seizures. We do so not only because we find the United States Supreme Court’s analytical distinction between “standing” and “threshold substantive question,” see Rakas, supra 439 U.S. at 139 n. 7, 99 S.Ct. at 428 n. 7, unhelpful to our interpretation of Article I, section 8’s protection, but also because we believe the United States Supreme Court’s current use of the “legitimate expectation of privacy” concept needlessly detracts from the critical element of unreasonable governmental intrusion.
Article I, section 8 of the Pennsylvania Constitution, as consistently interpreted by this Court, mandates greater recognition of the need for protection from illegal governmental conduct offensive to the right of privacy.
An individual’s effects and possessions are constitutionally protected from unreasonable search and seizure as well as his person. U.S. ConstAmend. IV, Pa. Const, art. I, § 8. This protection does not depend on the physical presence or physical absence of the individual owner. ‘So long as a person seeks to preserve his effects as private, even if they are accessible to ... others, they are constitutionally protected. Stated differently, a person must maintain the privacy of his possessions in such a fashion that his “expectations of freedom from intrusion are recognized as reasonable.” ’ Commonwealth v. Platou, 455 Pa. 258, 266-267, 312 A.2d 29, 34 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). (Emphasis in original). Commonwealth v. White, 459 Pa. 84, 89-90, 327 A.2d 40, 42 (1974).
Moreover, we have held that personal possessions remain constitutionally protected under Article I, section 8 until their owner meaningfully abdicates his control, ownership or possessory interest therein. Commonwealth v. White, supra; see Commonwealth v. Platou, supra. We remain convinced that ownership or possession of the seized property is adequate to entitle the owner or possessor thereof to invoke the constitutional protection of Article I, section 8 by way of a motion to suppress its use as evidence. See also, State v. Alston [88 N.J. 211, 440 A.2d 1311 (1981)], supra.
Since we regard ownership or possession of the seized property as sufficient to confer standing to challenge a search and seizure under Article I, section 8, it necessarily follows that a person charged with a possessory offense must be accorded “automatic standing” adopted by this Court in Commonwealth v. Knowles [459 Pa. 70, 327 A.2d 19 (1974)], supra.

Commonwealth v. Sell, supra 504 Pa. at 66-68, 470 A.2d at 468-469.

In following the rationale of Rakas, the majority in this case suggests that it is not abandoning the test for standing announced in Commonwealth v. Treftz, supra, but merely refocusing the analysis from a “preoccupation with nomenclature (e.g., ‘legitimately on the premises’ and/or ‘standing’)” to a determination of whether the defendant had a legitimate expectation of privacy in the area searched. Such an argument, however, was expressly rejected by the Sell Court in its determination of state constitutional law. Although the issue in Sell was different, it seems clear to me that the Supreme Court has conferred standing under the Pennsylvania Constitution to challenge the admission of fruits of an allegedly illegal search upon any person who was legitimately present on the premises at the time of the search. I conclude, therefore, that appellant had standing in this case to contest the seizure of the shotgun from Kathy Hummel’s. apartment.

Notwithstanding my disagreement with the majority on the issue of standing, I concur in the decision to affirm the judgment of sentence. After carefully reviewing the record and testimony at the suppression hearing, I am satisfied that the warrant authorizing the search of Hummel’s apartment was validly issued, under seal, upon probable cause, sufficiently named the shotgun as an item to be seized, and was properly executed by police. Because there was no basis for suppressing the shotgun which was seized, therefore, I agree that the judgment of sentence must be affirmed.

      . No evidence relating to the appellant's standing was introduced at the hearing.

      . The Court in Treftz wrote:
      The United States Supreme Court in Brown [v. U.S., 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973) ], supra, has outlined the perimeters of what shall be deemed essential to a finding that the criminal defendant's own personal rights lay at the core of the improper and proscribed governmental action, thereby justifying the invocation of the exclusionary rule. In the instant case, appellant Treftz fails to meet any of the Brown standards.
      Under Brown, a defendant must allege one of the following "personal" interests in order to establish standing: (1) his presence on the premises at the time of the search and seizure; (2) a possessory interest in the evidence improperly seized; (3) that the offense charged include as an essential element of the prosecution’s case, the element of possession at the time of the contested search and seizure; or (4) a proprietory or possessory interest in the searched premises.
      465 Pa. at 617, 351 A.2d at 268 (Footnotes omitted).

      . We cannot help but note that the Concurring Opinion’s citation to Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), makes reference to the right of privacy under the Pennsylvania Constitution (Article I, Section 8) protecting an "individual’s effects and possessions” from unreasonable searches and seizures. With this we do not argue. However, Sell dealt with the “automatic standing” rule being retained in this Commonwealth despite its renunciation by the United States Supreme Court. Also, "automatic standing" was afforded to an accused and spoken of in terms of the defendant’s "ownership or possession of the seized property” as the touchstone upon which standing to challenge a search and seizure under Article I, Section 8 was to be conferred where a possessory offense was charged.
      Instantly, the defendant was neither charged with a crime of which possession was an element, nor did he claim ownership or possession of the seized evidence. Thus, even under Sell, the appellant does not have "standing”, be it “automatic" or otherwise, to contest the evidence seized at Hummel’s apartment. Accordingly, we will not permit the appellant to secure "standing” under a distorted reading of Sell by extending its perimeters to encompass facts not involving a possessory offense. We are not convinced to do so at this time in light of the continuing reference and use of the "reasonable expectation of privacy” as a viable prong in this Commonwealth to preserve one's right to challenge searches and seizures under Article I, Section 8 in a nonpossessory offense context.

      . If the appellant had admitted to the ownership or possession of the weapon, he could have alleged a proprietary or possessory interest establishing the requisite standing to challenge the warrant, all of which (admission) could have been done without any danger of incriminating himself at trial. See Brown v. United States, 411 U.S. 223, 228, 93 S.Ct. 1565, 1568, 36 L.Ed.2d 208 (1973). He did not do so.

      . The appellant was not charged with a possessory offense to be accorded "automatic" standing. See Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983) and compare with United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) ("Automatic" standing rule established in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) was overruled).

      . The remaining issues, labelled in the appellant’s brief at page 4 with the letters "G”, "H” and “I”, have been addressed properly by the court below in its opinion to us. We adopt it as our own and for allocatur purposes in dismissing the claims raised thereunder.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    577 A.2d 1384
    Pasquale FIORENZA and Vittoria Fiorenza, H/W v. Bernard KOHN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 3, 1990.
    Filed Aug. 8, 1990.

      E. Douglas DiSandro, Philadelphia, for appellant.
    John T. Quinn, Philadelphia, for appellees.
    Before DEL SOLE, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from a judgment entered July 26, 1989, which followed the court’s order granting appellees’ motion for additur and awarding delay damages for a total award of $49,315.05. Appellant contends that the trial court erred in (1) granting appellees’ motion for additur and (2) awarding delay damages pursuant to Pa.R.Civ.P. 238. For the reasons that follow, we affirm the order and judgment below.

This case arises from an automobile accident that occurred on September 18, 1985. Appellee Pasquale Fiorenza, while stopped at a traffic light going south on Broad Street in Philadelphia, was struck from behind by a vehicle driven by appellant. As a result of the accident, Pasquale Fiorenza suffered personal injuries and incurred medical expenses.

Upon agreement of the parties, the case was submitted to the trial court upon stipulated facts, with appellant admitting total liability. The parties stipulated to the facts of the accident and agreed on all medical bills. The trial court took the case under advisement in December of 1988, and then, awarded Pasquale and Vittoria Fiorenza $6,436.20 for medical expenses, $7,000.00 for pain and suffering, and an additional $2,500.00 for appellee wife’s loss of consortium. Appellees filed post-trial motions requesting a new trial or, in the alternative, an additur on the basis that the damages awarded were insufficient. In their motion, appellees also requested delay damages for a period of fifteen and one-half months. On May 19, 1989, the trial court determined that its damage award was inadequate, and denied the motion for a new trial, but granted the motion for additur. The trial court also awarded appellees delay damages. This timely appeal followed.

Initially, appellant argues that the trial court erred in granting appellees’ motion for additur. Appellant contends that, although the damage award was nominal it was not so woefully inadequate as to require, in effect, a reinterpretation of the evidence, and such a substantial increase. The test for determining inadequacy of a verdict is “whether the award when scrutinized under the law and indisputable facts of the case at hand is so inadequate that it should not be permitted to stand....” Cf. Hill v. Commonwealth Bureau of Corrections, 124 Pa.Commw. 172, 177, 555 A.2d 1362, 1368 (1989). “[E]ach case must be examined in light of its unique facts,” and “an award need not be zero or nominal or a trivialization of the plaintiff’s injury in order to be inadequate.” Id. With these standards in mind, we have carefully reviewed the record, and we cannot conclude that the Honorable Calvin T. Wilson erred in finding that the verdict was inadequate. Moreover, in his October 27, 1989 opinion, Judge Wilson, who sat as fact-finder, carefully explained his reasons for concluding that he had erred in initially assessing damages, and that his previous award was based upon an erroneous interpretation of the facts. Accordingly, we find this reasoning persuasive and hold that the court did not err in finding that the verdict was inadequate.

Next we must determine whether the court’s remedy in granting an additur was correct. Although courts generally have granted a new trial when the verdict award is inadequate, see Butler v. Flo-Ron Vending Co., 383 Pa.Super. 633, 557 A.2d 730, 737 (1989), alloc. denied, 523 Pa. 646, 567 A.2d 650 (1990), courts have the inherent authority to enter any appropriate order. See Pa.R.Civ.P. 227.1(a)(1) & (4), (5) (trial court has inherent authority to (1) order a new trial as to all or any of the issues; or ... (4) affirm, modify or change the decision or decree nisi; or (5) enter any other appropriate order). Furthermore, absent a clear abuse of discretion or an error of law which controlled the outcome of the case, we will not disturb a trial court’s decision in this regard. Butler v. Fol-Ron Vending Co., supra; see also Bortner v. Gladfelter, 302 Pa.Super. 492, 496-97, 448 A.2d 1386, 1388-89 (1982).

Here, the court determined that there was no need for a new trial and instead granted appellee’s alternate motion for an additur. Although the court did not articulate the reasons for granting an additur rather than a new trial, after reviewing the record it is clear that the court did not abuse its discretion in this regard. As we have noted above, the case was tried without a jury, and the parties stipulated to the facts concerning both liability and medical expenses. In such an instance, when there is no dispute regarding the facts, and the court as fact-finder, clearly articulates its reasons for its initial erroneous assessment of damages, it would be pointless to require a new trial. Indeed, in such an instance, a new trial could not result in a different outcome. Accordingly, we cannot say that Judge Wilson abused his discretion in granting appellees’ motion for additur.

Appellant’s remaining contention, concerning the award of delay damages, is two-fold. First, appellant argues that delay damages were improperly awarded because he was not at fault for the delay, thus, he should not be penalized for it. The trial court properly noted that where a defendant fails to make an adequate settlement offer and plaintiff does not cause the delay, the defendant is liable for delay damages. See Trial Court Opinion at 8, (citing King v. Southeastern Pennsylvania Transp. Auth., 383 Pa.Super. 420, 557 A.2d 11 (1989)). Moreover, the court adequately explained its reasons for imposing delay damages. Accordingly, for the reasons stated in the lower court opinion, we affirm the disposition of this issue. See Trial Court Opinion at 7-9. Appellant next argues that the imposition of delay damages under new Rule 238 is unconstitutional because it imposes fault on a defendant for defending his case. This Court has found similar challenges to the constitutionality of Rule 238 to be meritless. See Dietrich v. J.I. Case Co., 390 Pa.Super. 475, 568 A.2d 1272 (1990) (Rule 238 not patently unconstitutional); see also Shellhamer v. Grey, 390 Pa.Super. 122, 568 A.2d 224 (1989) (Rule 238 not unconstitutional on equal protection and due process grounds). Moreover, we have noted that because Rule 238 was promulgated by our Supreme Court, it would be inappropriate for this Court to hold it unconstitutional. Thus, any determination regarding the constitutionality of the Rule can only emanate from the Supreme Court. Dietrich v. J.I. Case Co., supra.

Accordingly, for the foregoing reasons, we affirm the judgment below.

Judgment affirmed.

      . The award was broken down as follows: $45,000.00 to appellee husband; $1,815.05 in delay damages; and 2,500.00 to appellee wife for loss of consortium.


author: ROWLEY, Judge:

text:
    577 A.2d 1387
    COMMONWEALTH of Pennsylvania, Appellant, v. Shelton SMITH.
    Superior Court of Pennsylvania.
    Submitted April 18, 1990.
    Filed Aug. 16, 1990.

      Vram Nedurian, Jr., Asst. Dist. Atty., Newton Square, for Comm.
    Shelton Smith, pro se.
    Before CAVANAUGH, ROWLEY and HUDOCK, JJ.
   ROWLEY, Judge:

This is an appeal by the Commonwealth of Pennsylvania from the trial court’s order of June 21, 1989, granting appellee a new trial on the basis that the trial court had erred in not suppressing evidence. The evidence at issue consists of 40 ziplock bags containing varying amounts of cocaine, and one bag containing marijuana, that were found in appellee’s pants pocket. As a result of the seizure, appellee was charged with one count of possession of a controlled substance, possession with intent to deliver, and possession of drug paraphernalia. Appellee filed an omnibus pre-trial motion challenging the legality of the search which resulted in the seizure of the evidence. The trial court held a hearing and denied the motion. The following day, appellee waived his right to a jury trial and the case was submitted to the trial court on facts stipulated to by appellee and the Commonwealth. The court adjudicated appellee guilty. Subsequently, the trial court reversed its decision concerning the legality of the seizure of evidence, pursuant to Commonwealth v. Ogborne, 384 Pa.Super. 604, 559 A.2d 931 (1989). We reverse the order of the trial court and remand for imposition of sentence.

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

The relevant facts, as found in the record of the suppression hearing, are as follows: On July 6, 1988, at approximately 6:00 p.m., Officer John Finnegan of the Chester City Police Force received a telephone call from a paid informant with whom he had an ongoing relationship dating back approximately eight months. During that period, the informant had given information leading to the arrest of at least twenty individuals. N.T. of 2/6/89 at pp. 5, 12. The informant advised Finnegan that he had just observed a black male, wearing a white tank top shirt, bright yellow pants and a white hat, and selling cocaine in the area of 10th and McCafferty Streets in the City of Chester. This area was known to the officers of the Chester City Police Department as a high crime and drug trafficking area.

Because of other assignments, no police officers arrived at that location until 7:40 p.m. At that time, Officer Finnegan, Detective Greenwalt, and other officers of the Chester City Police Force deployed themselves around the area of 10th Street and McCafferty Place. Detective Greenwalt observed appellee, wearing the articles of clothing described by the informant, walking on McCafferty Place from 11th Street to 10th Street, and speaking to a young woman. A number of other persons were in the area. When appellee observed the presence of some of the police officers moving toward him from 11th Street, appellee continued walking toward 10th Street, accompanied by the young woman and looking over his shoulder at the police approaching from 11th Street. Unbeknownst to appellee, Detective Greenwalt was hiding near the corner of 10th Street behind a building. As appellee was looking over his shoulder at the police officers, Detective Greenwalt stepped from behind the building and identified himself. He asked appellee to step over to a fence next to the sidewalk, away from the young woman. Detective Greenwalt described appellee’s demeanor as “real nervous,” and thought that appellee was about to run away, and therefore, he grabbed appellee by the elbow and asked him again to step over to the fence. Appellee then stated, “I can’t stay here. I’ve got to—I can’t stay here, I can’t stay here.” Detective Greenwalt then pushed appellee towards the fence. N.T. of 2/6/89 at p. 26. Detective Greenwalt patted him down for weapons and felt a hard bulge in appellee’s pocket, so he reached into the yellow sweat pants and into the pocket of the shorts which appellee was wearing under the sweat pants and found the plastic bags containing the drugs, $163 in currency, and a roll of lifesavers. N.T. of 2/6/89 at p. 27-28.

We note initially that appellee did not present any evidence to contradict that offered by the Commonwealth. The trial court rejected appellee’s pre-trial motion to suppress the evidence, finding the Commonwealth’s evidence at the suppression hearing credible, and ruling that the stop and frisk was legal. We are, therefore, bound by the trihl court’s findings of fact, as they are supported by the record. See Robinson, supra, Jackson, supra, and Capers, supra.

Our examination of the conduct of the police must follow two separate inquiries: 1) the legality of the initial stop; and 2) the propriety of the officers’ subsequent actions. Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986). To justify the initial stop, a police officer must rely on specific and articulable facts, which if taken together with rational inferences from those facts, reasonably warrant that intrusion. Commonwealth v. Pine, 370 Pa.Super. 410, 536 A.2d 811 (1988), Jackson, supra. As the Supreme Court .has explained:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to. determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.

Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-17 (1972) (citations omitted).

The search or frisk incident to an investigatory stop must meet a higher threshold of justification. A police officer may legitimately search an individual’s clothing in an attempt to discover the presence of weapons which might be used to endanger the officer or others if the officer observes unusual and suspicious conduct on the part of the individual seized which leads him to conclude that criminal activity is afoot and that the person with whom he is dealing may be armed and dangerous. Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).

After appellee filed his post-verdict motions in which he challenged the correctness of the trial court’s ruling on his suppression motion, a panel of the Superior Court decided Commonwealth v. Ogborne, supra, which the trial court relied upon in deciding to grant appellee a new trial. In Ogborne, the police received a tip from an informant, with whom they had an ongoing relationship, that Ogborne would be arriving at the 100 block of Saude Avenue, Tinicum Township, in a black Dodge automobile, and that he would have approximately 10 bundles of P.C.P. in his possession. The police confirmed that Ogborne lived at 115 Saude Avenue and that a black Dodge was frequently parked in front of that house. The police then set up a surveillance of the 100 block of Saude Avenue. Approximately five hours after receiving the telephone call, Ogborne entered his driveway in a black Dodge. The police immediately surrounded the car and blocked the driveway with a police car whose red dashboard light was flashing. After repeatedly ordering Ogborne to shut off his engine and exit the car, an officer opened the driver’s door. Upon opening the door, the officer smelled the odor of P.C.P. and ordered Ogborne out of the car and a search was made of Ogborne resulting in the seizure of 89 packets of P.C.P. A search of the interior of the car resulted in the seizure of a smaller quantity of the drug. Ogborne moved for suppression of the evidence, which was denied, and was convicted of various criminal charges relating to his possession of the P.C.P.

The Superior Court reversed the trial court’s ruling and held that the police lacked the reasonable suspicion needed to justify an investigatory stop. The Court summarized the basis for its holding as follows:

In essence, Detective Greenwalt stopped (Ogborne’s) vehicle in his private driveway at his residence based solely on the informant’s unverified allegation that appellant was carrying drugs. Moreover, approximately five (5) hours elapsed since police received the informant’s tip and the actual arrest was conducted. Doubtless, enough time existed between the receipt of the confidential information and the stop for Detective Greenwalt to apply for a search warrant. However, in that time span no efforts were made by police to secure a search warrant. We do not retreat from holdings that the police, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure. In most circumstances failure to comply with the warrant requirement can only be excused by exigent circumstances.

Id., 384 Pa.Superior Ct. at 609, 559 A.2d 931, 933-934 (emphasis in the original, footnote and citations omitted). The Court noted that the police admitted that they did not have probable cause to obtain a warrant, and that no evidence of exigent circumstances appeared in the record to justify a warrantless search. In closing, the Court stated:

[W]e hold that police may not conduct a valid investigative stop based solely on a confidential informant’s isolated and uncorroborated allegation that a particular individual is in possession of drugs. We do not imply that confidential information may not buttress a police officer’s foundation for an investigative stop in situations where the officer can point to specific and articulated facts. However, in the absence of exigent circumstance (sic), admittedly not present here, unsupported allegations by informants that certain individuals possess drugs which do not rise to the level of probable cause for a search warrant, may not be utilized by the police five (5) hours later to justify an investigative stop on a person’s private property.

Id., 384 Pa.Superior Ct. at 612, 559 A.2d at 935 (emphasis supplied).

The instant case is materially distinguishable from Ogborne. In Ogborne, the sole fact of which the police had knowledge when they stopped Ogborne in his own driveway at 11:00 p.m. getting out of his own car was the information provided by the confidential informant which admittedly was insufficient to support a search warrant. Aside from the informant’s tip, the police had no information to suggest that Ogborne was engaging in any criminal activity, and Ogborne’s own activity appeared to be entirely ordinary and circumspect.

In the present case, however, the police not only had the information provided by the confidential informant regarding appellee’s possession and sale of cocaine, but the police were aware that the area in which appellee was observed selling the drugs and in which the police found him was a high crime area, and appellee acted suspiciously as soon as he perceived the presence of the police and even before he had any reason to suspect that they wanted to stop him. These additional facts materially distinguish Ogborne and, at the same time, provide the basis for the investigatory stop. The police personally observed sufficient unusual behavior on the part of appellee. This fact, coupled with the reliable informant’s tip to the police, warranted the investigatory stop. Moreover, since the area was known to be a high crime area, and appellee was acting suspiciously, it was not unreasonable for the police to frisk appellee to ensure their own safety.

Not only are the facts in the present case distinguishable from those in Ogborne, but they are substantially similar to those in Williams, supra. In Williams, a police officer was sitting in his cruiser in the early morning hours on patrol in a high crime area when he was approached by an informant who was known personally to him, and told that an individual was sitting in a nearby vehicle carrying drugs and had a gun in his waistband. The officer went to investigate and found the defendant seated in an automobile. He tapped on the window and asked the defendant to open the door. The defendant rolled down the window and the officer reached in and removed a revolver from the defendant’s waistband. The gun had not been visible to the officer, but was in precisely the place indicated by the informant. The defendant was then arrested and a full search conducted of both the defendant and the car resulting in the finding of heroine, a machete and a second revolver.

In reversing the Circuit Court’s granting of relief, the Supreme Court applied the principles set forth in Terry, and found that the officer acted justifiably in responding to the informant’s tip. The Court explained that the informant was personally known to the officer and had provided reliable information in the past; and the information provided was immediately verifiable at the scene. The Court also noted that under the state’s law, the informant would have been subject to arrest for making a false complaint. The Court then recognized that, “while the Court’s decisions indicate that this informant’s unverified tip may have been insufficient for a narcotics arrest or search warrant, the information carried enough indicia of reliability to justify the officer’s forcible stop of Williams.” Williams, at 147, 92 S.Ct. at 1924, 32 L.Ed.2d at 618. The Court went on to reject the defendant’s argument that reasonable cause for a stop and frisk could only be based upon the officer’s personal observations, and not on information supplied by another person.

On several occasions, the Superior Court has upheld investigative stops based upon information supplied to police officers. In Commonwealth v. Prengle, 293 Pa.Super. 64, 437 A.2d 992 (1981) the Superior Court affirmed a ruling that an officer was justified in making an investigative stop of a truck fifteen minutes after receiving a radio dispatch that a burglary had been committed, the perpetrator would be driving a truck matching a particular description and filled with certain stolen items, and the officer had positioned himself near an exit ramp from an expressway near the reported location of the burglary. Likewise, in Commonwealth v. Janiak, 368 Pa.Super. 626, 534 A.2d 833 (1987), a panel of this Court affirmed a ruling that police officers were justified in making an investigative stop of an automobile when they were informed via police radio of a report by a private citizen that an individual was driving while under the influence near their position, they only observed one vehicle on the roads described, and the only observation they had made was that the vehicle was traveling about 15 to 20 miles per hour.

Considering that the informant in the instant case was known to Officer Finnegan for eight months and had proven to be a reliable informant in the past, we find that the police were justified in responding to the tip and investígating further, despite the fact that they were occupied with other matters and did not arrive at the described location for an hour and forty minutes. After they arrived, they then had the benefit of their own observations of appellee’s suspicious behavior in addition to the information supplied by the informant. As appellee’s suspicious behavior and nervousness grew, Detective Greenwalt, knowing that he was in a high crime area, was entitled to make an investigatory stop and pat down appellee to determine whether he was carrying weapons. Discovering the presence of a hard bulge in appellee’s pants pocket, Detective Greenwalt had cause to investigate further to insure that the bulge was not a weapon. Finding that the investigatory stop of appellee was appropriate and that the subsequent frisk was warranted, we reverse the trial court’s order granting appellee a new trial and suppressing the evidence.

Order reversed. Case remanded for imposition of sentence. Jurisdiction is relinquished.

      . Detective Greenwalt testified that the area of McCafferty Village is a public housing project consisting of several rows of buildings, with public sidewalks between the buildings. N.T. of 2/6/89 at p. 25.

      . Terry v. Ohio, 392 U.S. 1, 88 S.St. 1868, 20 L.Ed.2d 889 (1968).


author: BECK, Judge:

text:
    578 A.2d 1
    COMMONWEALTH of Pennsylvania, Appellant, v. Jeffrey PONTIOUS, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Michelle HAWLEY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 30, 1990.
    Filed July 5, 1990.

      Douglas J. Wright, Asst. Dist. Atty., Girard, for Com.
    Daniel J. Kuhn, Union City, for appellees.
    Before CIRILLO, President Judge, and WIEAND, McEWEN, MONTEMURO, BECK, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ., En Banc.
   BECK, Judge:

This is a consolidated appeal by the Commonwealth from orders suppressing evidence that was obtained by a police officer after arresting motorists for driving under the influence. At issue is whether the trial court properly suppressed evidence on the ground that the arresting officer had been hired in violation of a civil service law. We find that the appellee motorists do not have standing to challenge the alleged violation of civil service law, and therefore reverse the trial court.

The essential facts are not in dispute. John E. Kerr of the Union City Police Department saw appellee Jeffery E. Pontious drive through a stop sign in Union City, Pennsylvania. After ordering Pontious to stop, Officer Kerr noticed that Pontious had a strong odor of alcohol on his breath. Kerr asked Pontious to perform two sobriety tests; Pontious failed both. Pontious also submitted to a chemical test that indicated that his blood alcohol content was .354%. Kerr then placed Pontious under arrest for driving under the influence.

On a separate occasion, Kerr observed appellee Michelle A. Hawley operating a vehicle in an erratic manner also in Union City. Hawley made an improper left turn, crossed the center line of the roadway twice, and nearly struck a bridge abutment and a utility pole. Kerr stopped Hawley and noticed a strong odor of alcohol on her breath. Hawley failed two sobriety tests, and she submitted to a chemical test that yielded a blood alcohol content reading of .212%. Kerr then placed Hawley under arrest for driving under the influence.

Appellees retained the same defense counsel, and defense counsel filed suppression motions. In support of these motions, counsel alleged that Officer Kerr had been hired in violation of the Borough Code. The civil service subdivision of the Borough Code provides in part: “each and every appointment to and promotion in the police force ... paid directly by the borough in every borough shall be made only according to qualifications and fitness, to be ascertained by examinations which shall be competitive....” Pa.Stat.Ann title 53 § 46171. A Union City Ordinance further provides that the chief of police and all subordinate policemen shall be appointed subject to the civil service provisions of the Borough Code. All parties stipulated that the Borough of Union City had hired Kerr without first administering a civil service examination.

After entertaining argument, the trial court concluded that Kerr did not qualify under any of five statutory exceptions to the civil service requirement. The court therefore reasoned that Kerr’s failure to take a competitive examination deprived him of lawful authority to arrest the appellees. As a consequence, the court entered orders suppressing all evidence obtained by Kerr as the fruit of unlawful arrests. The Commonwealth filed timely appeals of the suppression orders and the appeals were consolidated. Since the Commonwealth certifies in good faith that the suppression orders if given effect would substantially handicap or terminate its prosecutions, we have jurisdiction to entertain this consolidated appeal. Commonwealth v. Toanone, 381 Pa.Super. 336, 338-40, 553 A.2d 998, 999 (1989).

Three issues are before us on appeal. First, do criminal defendants have standing to question whether an arresting officer was hired in compliance with civil service requirements? Second, did the trial court correctly interpret the civil service statute when it held that Officer Kerr was not properly hired? Third, is an order suppressing evidence an appropriate remedy for a civil service law violation? We find that appellees do not have standing to question whether Kerr was properly employed by the police department. Accordingly, we shall not address the statutory interpretation issue and the suppression issue.

In order for a party to have standing to challenge an official order or action, she must be aggrieved in that her rights have been invaded or infringed. South Whitehall Township Police Service v. South Whitehall Township, 521 Pa. 82, 86-87, 555 A.2d 793, 795 (1989); Commonwealth v. Russell, 225 Pa.Super. 133, 136-37, 310 A.2d 296, 297-98 (1973).

The question then arises as to whether appellees were aggrieved or their rights invaded because Officer Kerr was allegedly not hired in compliance with the civil service law. Appellees assert that their arrest was illegal because Officer Kerr’s appointment to the police department was improper. They claim their standing is derived from a general right to be free from illegal arrests. This argument is based on the false premise that every act performed by a public official who was not properly hired is invalid. This is not the case. Even if Kerr was illegally hired, his arrests of the appellees were not illegal. The improper hiring by itself cannot convert a legal arrest into an illegal one. If the improper hiring caused the arrests to be illegal, certainly appellees would then have standing to challenge the hiring itself.

Case law supports that conclusion that Kerr had de facto authority to carry out lawful arrests.

As the Pennsylvania Supreme Court has noted:

A person in possession of an office and discharging its duties under the color of authority,—that is, authority derived from an election or appointment however irregular or informal, so that the incumbent be not a mere volunteer,—is a de facto officer, and his acts are good so far as respects the public; attacks upon the right of such incumbent to serve must be instituted by the Commonwealth in a direct proceeding for that purpose and cannot be made collaterally: King v. Philadelphia Co., 154 Pa. 160, 168, 169, 26 A. 308, 309, 310; Krickbaum’s Contested Election, 221 Pa. 521, 526, 527, 70 A. 852, 854; Commonwealth ex rel. Raker v. Snyder, 294 Pa. 555, 559, 144 A. 748, 749; Commonwealth ex. rel Palermo v. Pittsburgh, 339 Pa. 173, 177, 178, 13 A.2d 24, 26; Commonwealth ex rel. McCreary v. Major, 343 Pa. 355, 364, 22 A.2d 686, 690, 691; Commonwealth v. Brownmiller, 141 Pa.Superior Ct. 107, 112, 113, 14 A.2d 907, 910.

Pleasant Hills Borough v. Jefferson Township, 359 Pa. 509, 512-13, 59 A.2d 697, 699-700 (1948).

[This] doctrine springs from an understandable fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question. “If the question [of right to office] may be raised by one private suitor it may be raised by all, and the administration of justice would under such circumstances prove a failure.” Coyle v. Commonwealth, 104 Pa. 117, 130 (1884). The de facto doctrine seeks to protect the public by ensuring the orderly functioning of the government despite technical defects in title to office.

State Dental Council and Examining Bd. v. Pollack, 457 Pa. 264, 268, 318 A.2d 910, 913 (1974).

Under the de facto doctrine, a law enforcement officer hired in violation of the law may legitimately exercise search and seizure powers. See Commonwealth v. Field, 120 Pa.Super. 397, 183 A. 78 (1936) (official appointed by court pursuant to potentially unconstitutional statute was de facto peace officer with power to arrest); Appeal of Kahle, 112 Pa.Commw. 402, 403-05, 535 A.2d 304, 305 (1988) (dictum) (police officer sworn in by supervisor who lacked authority to administer oath of office had power to arrest). As long as the officer acts under color of authority, her acts are good as respects the public. Pleasant Hills Borough, supra. In the instant case, Kerr clearly was acting under color of authority as a Union City policeman when he arrested appellees while on duty as a police officer for crimes committed in his presence on the streets of Union City. Thus, the arrests were not illegal, and the trial court erred by suppressing evidence as the fruit of illegal arrests.

In conclusion, we hold that appellees do not have standing to litigate the question of whether their arresting officer was hired in accordance with the civil service law. By doing so, we do not deny the importance of the law or condone any evasion of its provisions. The appellate courts of this state will act to ensure compliance with the civil service subdivision of the Borough Code if the issue is raised in an appropriate proceeding. Appropriate proceedings may include suits by police officers whose employment conditions are adversely effected by violations of the Code, as well as criminal actions against local government officials who wrongfully hire applicants without the use of civil service examinations. We decide only that a suppression hearing is not an appropriate forum for an inquiry into compliance with civil service requirements.

Orders reversed and cases remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Pa.Stat.Ann. title 53 §§ 45101-48501 (Purdon 1966 & Supp.1989).

      . The civil service requirement applies to appointments to the police force. The term “police force” does not include the following five categories of police employees:
      (1) Any special police appointed by the mayor to act in emergencies,
      (2) Any person appointed solely for parking meter enforcement duties,
      (3) Any special school police,
      (4) Any extra police serving from time to time or on an hourly or daily basis, or,
      (5) Any auxiliary policeman appointed under the act of January 14, 1952 (P.L. 2016).
      Pa.Stat.Ann. title 53 § 46195 (footnote omitted).

      . Of course, an unlawfully hired police officer acting under color of law has no greater power to arrest than a lawfully hired police officer. A defendant may challenge the legality of his arrest on the ground that anyone occupying the position of the arresting officer, whether properly or improperly employed, would not have authority to conduct the arrest. This would be the case if, for example, a police officer conducted an arrest outside her primary jurisdiction in violation of section 8953 of the Municipal Police Jurisdiction Act. 42 Pa.Cons.Stat.Ann. § 8951-54 (Purdon 1982 & Supp.1989). See generally Commonwealth v. O’Shea, 523 Pa. 384, 392-00, 567 A.2d 1023, 1027-1030 (1989) (discussing availability of suppression as remedy for violations of territorial restrictions on search and seizure powers).

      . We acknowledge that in two cases this court upheld orders granting relief on the grounds that defendants were not arrested by bona fide police officers. In Commonwealth v. Ward, 235 Pa.Super. 558, 344 A.2d 650 (1975), and Commonwealth v. Brenneman, 236 Pa.Super. 120, 344 A.2d 564 (1975), the defendants were arrested by persons who had been designated as auxiliary police officers. Under Pennsylvania law an auxiliary police officer may not be called to duty except during periods of distress, disaster, or emergency. See Pa.Stat.Ann. tit. 53 § 734. No special exigency justified placing the auxiliary officers on active duty. A majority of the court concluded in Ward and Brenneman that the auxiliary officers could not lawfully place the defendants in custody and that evidence obtained by the officers could not be admitted at trial. In reaching this conclusion, the majority failed to consider the de facto authority doctrine. We now recognize that a person who is improperly called to duty as a police officer may have de facto authority to conduct an arrest. To the extent that Ward
        and Brenneman automatically require the suppression of evidence seized by improperly employed policemen, those cases are overruled.

      . The civil service subdivision of the Borough Code contains the following language:
      Any councilman who, by his vote, causes to be appointed any person to the police force or as a fire apparatus operator contrary to the provisions of this subdivision, or any councilman or member of the [civil service] commission who willfully refuses to comply with, or conform to, the provisions of subdivision (j) of this article, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine not exceeding one hundred dollars ($100), or suffer imprisonment not exceeding three months, or both. Pa.Stat.Ann. title 53 § 46194 (footnote omitted).


author: OLSZEWSKI, Judge:

text:
    578 A.2d 4
    COMMONWEALTH of Pennsylvania v. Everett McLEAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 2, 1990.
    Filed Aug. 2, 1990.

      Veronica A. Smith, Asst. Public Defender, Hermitage, for appellant.
    Lorinda L. Hinch, Asst. Dist. Atty., Mercer, for Com., appellee.
    Before OLSZEWSKI, MONTEMURO and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Mercer County after conviction for two counts each of unlawful delivery and possession of cocaine. On appeal, appellant calls upon us to determine: (1) whether there was sufficient evidence to sustain the verdicts; (2) whether the verdicts were against the weight of the evidence; and (3) whether the sentence imposed was excessive. For the following reasons, we affirm.

On April 12, 1989, following a jury trial, appellant was convicted of the above charges. Timely post-verdict motions were filed and denied. On December 29, 1989, appellant was sentenced to an aggregate term of four-and-one-half-to-nine-years imprisonment relating to the two counts of unlawful delivery of cocaine. No further sentence was imposed as to the remaining counts. Following denial of his motion to modify the sentence, appellant filed the instant appeal.

Appellant initially contends that the evidence was insufficient to support the verdicts. We disagree.

Our standard of review regarding attacks on the sufficiency of the evidence is well-established. In evaluating such a claim, we must view the evidence in the light most favorable to the verdict winner, here the Commonwealth, and drawing all reasonable inferences therefrom, we must determine whether a reasonable jury could have found that all of the elements of the crime charged were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989).

Instantly, the trial court aptly summarized the testimony as follows:

This case arises out of two (2) separate incidents where the defendant sold cocaine to an undercover Pennsylvania state trooper on December 11 and 28 of 1987. The trooper testified that he personally purchased cocaine from the defendant on the two dates at the defendant’s apartment and positively identified defendant as the man with whom he dealt.
The trooper had been brought into the area to work undercover for the Region VII strike force with a confidential informant for the purpose of making under cover drug purchases. On December 11, 1987, the confidential informant took the trooper to the vicinity of 211 Mesabi Street, Sharon, Mercer county, Pennsylvania, where he was introduced to the defendant Everett McLean.
The evidence illustrated, in detail, the events surrounding the December 11, 1987 cocaine purchase. The trooper described that the lighting conditions inside of the apartment were good, enabling him to clearly identify the defendant (T.T. p. 46), as well as give detailed descriptions of the apartment, those in attendance and the defendant’s movements before and after the drug purchases (T.T. p. 13). Trooper Jones stayed inside of the defendant’s apartment for approximately five (5) to ten (10) minutes, at which time the defendant showed and eventually sold Trooper Jones two (2) packages of cocaine (1 gram) for $100.00.
A second drug purchase was made by the trooper from the defendant on December 28, 1987 also at 211 Mesabi Street (T.T. p. 20). When the trooper first arrived, defendant stated he was out.of cocaine but could get some within one-half (½) hour. When the trooper returned, defendant sold him ⅟16 oz. for $150.00. Defendant also asked for a taste of what he had just sold (“a toot”), but the trooper responded he needed it all for his girlfriend and others.
In both transactions, defendant sold the cocaine readily and without reluctance; and the money and drugs passed directly between the defendant and the undercover trooper. Crime lab reports were placed into evidence, establishing that the first sale was of two (2) ½ gram packets of cocaine and the second sale was of 1.69 grams of cocaine.

Trial court opinion of July 25, 1989, at pp. 2-3.

Our review of the record is in accord with the trial court’s recitation of the facts. Keeping in mind our standard of review, there is no question that a reasonable jury listening to the above testimony could have come back with verdicts of guilt as to each charge. Accordingly, we find, as did the trial court, that the evidence was indeed sufficient to sustain each conviction.

Nevertheless, appellant maintains that the verdicts were against the weight of the evidence. He argues that the informant, who originally identified him to the undercover police officer, was a “polluted” and “corrupt” source. He also contends that the testimony of an alibi witness, which would have placed him at a different location during the second sale, effectively contradicted the Commonwealth’s case. We disagree.

The determination whether to grant a new trial on the ground that the verdict is against the weight of the evidence rests within the discretion of the trial court, and we will not disturb that decision absent an abuse of discretion. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982). Before a trial court may award a new trial on this ground, it must appear that the verdict was so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative. Commonwealth v. Gamber, 352 Pa.Super. 36, 45, 506 A.2d 1324, 1329 (1986); Commonwealth v. Barnhart, 290 Pa.Super. 182, 185, 434 A.2d 191, 192 (1981). When the challenge to the weight of the evidence is predicated on the credibility of the trial testimony, our review of the trial court’s decision is extremely limited. Generally, unless the evidence “is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture,” Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976) (citations omitted), these types of claims are not cognizable on appellate review. Id. See also Commonwealth v. Nelson, 514 Pa. 262, 271 n. 3, 523 A.2d 728 n. 3 (1987) (except in cases where penalty of death is imposed, appellate court should not entertain challenge to weight of evidence because examination is confined to “cold record”).

Commonwealth v. Hunter, 381 Pa.Super. 606, 617, 554 A.2d 550, 555 (1989).

Keeping in mind this standard of review, we find appellant’s claim meritless. Appellant is essentially saying that his alibi testimony is more credible than the testimony of the undercover police officer. Since this determination was properly one for the jury to consider, and in light of record as a whole, we cannot say that the verdict either shocked this Court’s conscience or was based upon surmise or conjecture. Accordingly, we find no abuse of discretion on the part of the trial court in rejecting this claim.

Finally, appellant contends that his sentence was excessive as it was not tailored to the rehabilitative needs of the appellant nor to the protection of society. We disagree.

Appellant’s challenge goes to the discretionary aspects of his sentence. As such, we must initially determine if appellant has complied with the rule announced in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). In Tuladziecki, our Supreme Court determined that under 42 Pa.C.S.A. § 9781(b), an appellate court may allow an appeal of the discretionary aspects of a sentence where a substantial question has been raised that the sentence imposed was not appropriate. The procedure to be utilized in order to comply with this section is found in Pa.R.A.P. 2119(f) which states:

(f) Discretionary aspects of sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for the allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

Pa.R.A.P. No. 2119(f), 42 Pa.C.S.A.

Instantly, appellant has failed to comply with Tuladziecki and Rule 2119(f). Because the Commonwealth objects to this omission, we find appellant’s claims to be waived. Commonwealth v. Smith, 375 Pa.Super. 419, 436, 544 A.2d 991, 999 (1988) (en banc)) Commonwealth v. Ross, 375 Pa.Super. 176, 180, 543 A.2d 1235, 1237 (1988), quoting Tuladziecki, supra.

Judgment of sentence affirmed.

      . 35 Pa.S.A. § 780-113(a)(30).

      . 35 Pa.S.A. § 780-113(a)(16).

      . The informant did not testify at trial; therefore, we fail to see how he could have had an effect, in any way, on the weight of the evidence.

      . We note that our Supreme Court has recently stated that "a challenge to the weight of the evidence is not appealable.” Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989). This statement was based upon a footnote found in Commonwealth v. Nelson, supra. Because neither of the Supreme Court decisions was based on this statement, and because the decision in Nelson does not preclude this Court from reviewing weight of the evidence claims, we shall review the merits of appellant’s claim.

      . Even had appellant met the 2119(f) requirements with respect to this case, this would not change the result. While the trial court correctly noted that the new guidelines are not applicable to this case, had they been applied, appellant’s sentence on the first count of unlawful delivery would have fallen into the mitigated range, and the sentence on the second count would have fit into the standard range. In addition, the court explained that the sentences were appropriate here due to appellant’s past criminal record and failure to mend his ways. Thus, since appellant’s claims do not advance a colorable argument that the sentencing court’s actions were inconsistent with a specific provision of the Sentencing Code, or were contrary to the fundamental norms which underlie the sentencing process, no substantial question has been raised which would require our intervention. See Commonwealth v. Hall, 382 Pa.Super. 6, 16, 554 A.2d 919, 924 (1989). Therefore, for either reason, appellant’s claims would fail.