author: TAMILIA, Judge. FORD ELLIOTT, Judge,

text:
    654 A.2d 1086
    COMMONWEALTH of Pennsylvania v. Charles DORSEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1994.
    Filed Jan. 9, 1995.
    Reargument Denied March 2, 1995.

      Richard H. Anderson, Media, for appellant.
    Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com., appellee.
    Before McEWEN, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge.

Charles Dorsey appeals from the January 5, 1994 judgment of sentence entered following a nonjury trial in which he was found guilty of possession, possession with intent to deliver a controlled substance and possession of drug parapheranlia. Following the denial of post-trial motions, appellant was sentenced to a term of eighteen (18) to seventy-two (72) months’ imprisonment. The charges stem from the following set of facts.

On October 1, 1992, officers of Ridley Township Police Department and detectives from Delaware County Criminal Investigation Division (CID), Narcotics Unit, executed a search warrant at 1400 West MacDade Boulevard, Apt. D371, Woodlyn, Delaware County. The apartment was rented by a Donald Crews who was not at home at the time the warrant was executed. As a result of the execution of the search warrant, a substantial amount of money, marijuana, a scale, bagging materials, and tally sheets were seized.
Towards the conclusion of the search, surveillance officers outside the residence observed Donald Crews and this defendant arrive in a silver colored station wagon. A detective outside recognized at least Crews as the subject of the warrant and followed the pair into the apartment building. The officers inside the building closed the apartment door and situated themselves around the outside of the apartment.
Crews and Dorsey entered the apartment building and proceeded up the stairs towards Crews’ apartment. The officers moved in and arrested Crews at the doorway to his apartment. Dorsey was stopped at the top of the stairs by Detective Glen Greenwalt.
Detective Greenwalt, as well as Detective Azpell, testified at the suppression hearing that as Dorsey was [sic] attempted to flee down the stairs and that at the same time Dorsey’s right hand appeared to be reaching toward his right pants pocket. Detective Greenwalt identified himself as a police officer and ordered Dorsey to assume a prone position with his hands in front of him. Greenwalt told Detective Azpell to watch Dorsey’s hands.
Detective Azpell began a pat down search of Dorsey for his safety and as a result of the suspicious movement of the defendant’s hands. He felt a pager attached to Dorsey’s belt and a lump in his right pants pocket which he from experience believed it to [be] marijuana. He observed a plastic bag consistent with that used for controlled substances protruding from Dorsey’s right pants pocket. Detective Azpell removed that plastic bag which contained smaller bags of marijuana and also removed a large sum of cash from Dorsey’s left pocket.

(Slip Op., Bradley, J., 3/15/94, pp. 2-3.)

On appeal to this Court, appellant argues the trial court erred in denying his motion to suppress the evidence obtained from him during this search. Specifically, appellant contends the trial court erred in finding the police conducted a valid Terry search for weapons as the Commonwealth failed to set forth particular facts which show the arresting officer could reasonably infer appellant was armed and dangerous. Since there was no probable cause to arrest appellant and thus conduct a legal search, there must be a reasonable basis for the police officer to believe appellant was armed and dangerous to warrant conducting a protective frisk. Appellant argues he was laying prone on the staircase with his arms outstretched with approximately ten police officers nearby, thus he was no threat to the police. Accordingly, he suggests the evidence does not support a reasonable basis for the officers to believe he posed any threat to them.

In reviewing the denial of a motion to suppress, we must first determine whether the suppression court’s factual findings, inferences and legal conclusions are supported by the record. Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177 (1992). Because the suppression court held for the Commonwealth, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Id. Additionally, it is exclusively the province of the suppression court to determine the credibility of the witnesses and weight to be accorded to their testimony. Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982). If the factual findings are supported by the record, then we may reverse only for an error of law. Lopez, supra, 415 Pa.Super. at 252, 609 A.2d 177.

A review of the record finds the suppression court had ample evidence to support its decision finding the police lawfully conducted a protective pat-down search of appellant. To justify a frisk incident to an investigatory stop, police need to point to specific and articulable facts indicating the person they intend to frisk may be armed and dangerous. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985). Appellant arrived at the scene of an execution of a search warrant for drugs with the named subject of the search. When he saw police, he attempted to flee, putting his hands in his pants. Despite being ordered to place his hands where police could see them, he refused to do so. Clearly, under these facts the police had a reasonable belief their safety was in jeopardy, and a limited search for weapons was warranted. Furthermore, this Court has held that when a police officer is confronted with someone who he reasonably believes is involved in narcotics traffic, a Terry pat-down frisk for protection of the officer is proper. Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075 (1991) (taking judicial notice that drug dealers are likely to be armed and dangerous). Accordingly, we find appellant’s argument to be without merit.

Appellant next argues the seizure incident to the pat-down frisk was a violation of Article 1, section 8, of the Pennsylvania Constitution, which protects citizens against unreasonably searches and seizure. The officer conducting the protective Terry frisk lacked independent probable cause to remove the bag of drugs from appellant’s pocket because it was not in “plain view.” Furthermore, appellant argues Pennsylvania does not have a “plain touch” doctrine, see Commonwealth v. Marconi, 408 Pa.Super. 601, 597 A.2d 616 (1991), which is an extension of the “plain view” doctrine. Finally, although this Court recognized the “plain touch” doctrine in Commonwealth v. Johnson, 429 Pa.Super. 158, 631 A.2d 1335 (1993), appellant contends the case is not controlling as it was decided under the federal constitution and not the Pennsylvania Constitution which affords greater protection to individuals.

Recent case law has drawn an analogy between the warrantless seizure of contraband in plain view of a police officer conducting a Terry search and when an officer discovers the contraband through his sense of touch. Minnesota v. Dickerson, 508 U.S. -, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Johnson, supra, 429 Pa.Super. at 158, 631 A.2d 1335. The “plain view” doctrine allows such a seizure if the contraband is observed by a police officer from a lawful vantage point, is in plain view and its 'incriminating character is immediately apparent. By analogy the United States Supreme Court in Dickerson, supra, and this Court in Johnson, supra, held:

If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.

Id. at 166, 631 A.2d at 1339-40, citing Dickerson, supra (footnote omitted).

Here, the arresting officer testified his tactile impression combined with his years of training and experience as a police officer, in addition to the surrounding circumstances, led him to reasonably conclude that what he felt was a controlled substance (N.T., 8/10/93, pp. 38-40). “Where it is ‘immediately apparent’ from the tactile impression that the suspect possesses contraband on his person, a seizure of the contraband is justified.” Johnson, supra, citing Dickerson, supra. Accordingly, we find the seizure did not violate appellant’s rights under the fourth amendment.

Appellant further contends Johnson is not controlling since it was not decided under the Pennsylvania Constitution which requires this Court to reject the “plain touch” doctrine. Initially, we note that appellant’s reliance upon Marconi, supra, is misplaced. First, in deciding Marconi under the federal constitution, this Court acknowledged our State Constitution as well. Id. at 603, 597 A.2d 617 n. 1. Secondly, in Marconi, we determined “the minute amount of drugs that was found on Marconi’s person could not have been identified through the sense of touch.” Id. at 615, 597 A.2d at 623. Thirdly, this Court expressly overruled Marconi insofar as it is inconsistent with Dickerson. In the Interest of S.D., 429 Pa.Super. 576, 584, 633 A.2d 172, 176 n. 3 (1993).

After a thorough review of appellant’s brief, we find that it lacks, beyond bold assertions, any detailed analysis as to a distinction between the federal constitution and our state constitution in regard to the “plain touch” doctrine. In Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), our Supreme Court delineated four aspects of any claimed distinction between the constitutions which must be analyzed in order to demonstrate why the Pennsylvania Constitution should be interpreted differently. Although appellant briefly has mentioned these aspects, he has failed to undertake any analysis of them. He simply argues Pennsylvania may adopt a state constitution which imposes greater limitations than those imposed by the federal constitution. Under these circumstances it would be inappropriate for this Court to conduct an in-depth analysis as to the distinction between the constitutions.

However, a cursory review of the doctrine reveals no greater privacy interests would be advanced for the citizen of this Commonwealth by holding Article 1, Section 8 of the Pennsylvania Constitution does not support the “plain touch” doctrine. In order for this doctrine to apply, an individual must already be lawfully stopped and subject to a lawful Terry frisk by the police officer. “Plain touch” merely permits the officer to invoke probable cause to search during this frisk as the result of his sense of touch coupled with the surrounding circumstances and his personal knowledge, experience and common sense. Rejecting this doctrine under the Pennsylvania Constitution would not prevent individuals from being stopped and frisked, nor would it eliminate any touching to which they are already subject. Rejection of the doctrine would merely require an officer to ignore that which, as the result of training, experience and common sense, is known to be contraband. The inherent protection within the doctrine is contained in the requirement that it must be “immediately apparent” the object felt is contraband. Accordingly, it is unnecessary to reject the “plain touch” doctrine to protect the privacy of the citizens of this Commonwealth, since the doctrine, by its own restrictions, provides that protection.

Judgment of sentence affirmed.

McEWEN, J., concurs in the result.

Dissenting opinion by FORD ELLIOTT, J.

FORD ELLIOTT, Judge,

dissenting.

I must respectfully dissent. I believe that the majority has applied the so-called “plain feel” or “plain touch” doctrine in a manner clearly prohibited by the United States Supreme Court.

Preliminarily, in order to better highlight our differences, I note that I am in agreement with the majority on two important matters. First, I agree that appellant’s brief is inadequate under the strictures of Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). Therefore, we may not embark upon a separate analysis of appellant’s claims pursuant to the Pennsylvania Constitution. Our only review is pursuant to the Fourth Amendment of the United States Constitution. Second, I agree that the analysis under federal constitutional principles leads to the conclusion that the police properly effected a Terry stop and frisk of appellant. Thus, I concur that the frisking officer was in a constitutionally permissible vantage point when he first felt the contents of appellant’s pocket. Where I fundamentally differ with the majority is in allowing the officer to proceed further and actually reach into appellant’s pocket pursuant to the “plain feel” doctrine.

As the Supreme Court explained in Minnesota v. Dickerson, 508 U.S. -, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the plain feel doctrine is akin to the plain view doctrine. Under that latter doctrine, if contraband is left in open view and a police officer in a constitutionally permissible vantage point observes it, it may be seized and used as evidence because there has been no invasion of a legitimate expectation of privacy and thus no prohibited seizure under the Fourth Amendment.

Extrapolating from the plain view doctrine, the Supreme Court held in Minnesota v. Dickerson that where the police are in a legal tactile vantage point, that is, during a Terry frisk, and the nature of contraband held by the suspect becomes “immediately apparent” through the sense of touch, then the police may constitutionally seize the contraband. Nevertheless, the court stressed that the nature of the contraband must, indeed, be immediately apparent and that no further manipulation of the suspect article is permissible:

The Minnesota Supreme Court, after ‘a close examination of the record,’ held that the officer’s own testimony ‘belies any notion that he “immediately” ’ recognized the lump as crack cocaine. See [State v. Dickerson], 481 NW2d [840], at 844 [ (1992) ]. Rather, the court concluded, the officer determined that the lump was contraband only after ‘squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket’ — a pocket which the officer already knew contained no weapon. Ibid.
Under the State Supreme Court’s interpretation of the record before it, it is clear that the court was correct in holding that the police officer in this case overstepped the bounds of the ‘strictly circumscribed’ search for weapons allowed under Terry. See Terry, 392 US. [1], at 26, 20 LEd2d 889, 88 SCt 1868, [at 1882-1883]. Where, as here, ‘an officer who is executing a valid search for one item seizes a different item,’ this Court rightly ‘has been sensitive to the danger ... that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.’ Texas v. Brown, 460 US [730], at 748, 75 LEd2d 502, 103 SCt 1535 [at 1546-1547 (1983) ] (Stevens, J., concurring in judgment). Here, the officer’s continued exploration of respondent’s pocket after having concluded that it contained no weapon was unrelated to ‘[t]he sole justification of the search [under Terry:] ... the protection of the police officer and others nearby.’ 392 US [1], at 29, 20 LEd2d 889, 88 SCt 1868, [at 1884]. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize, see id. [392 U.S. 1] at 26, 20 LEd2d 889, 88 SCt 1868, [at 1882-1883], and that we have condemned in subsequent cases. See Michigan v. Long, 463 US [1032], at 1049, n 14, 77 LEd2d 1201, 103 SCt 3469 [at 3480-3481 (1983) ]; Sibron [v. State of New York], 392 US [40], at 65-66, 20 LEd2d 917, 88 SCt 1889, [at 904 (1968) ].

Minnesota v. Dickerson, 508 U.S. at -, 113 S.Ct. at 2138-2139, 124 L.Ed.2d at 347-348.

Based on this rationale by the Supreme Court, I find the admission of the evidence below, predicated on the plain feel doctrine, to be infirm. It is clear from the record that the officer did not determine, by mere sense of touch, the contents of appellant’s pocket. Rather, his conclusion was not “immediately apparent,” but required further manipulation conjoined with the officer’s experience and the surrounding circumstances. I begin with a review of the frisking officer’s testimony:

[DISTRICT ATTORNEY:] And how did you conduct that pat down?
[DETECTIVE AZPELL:] I did a typically [sic] pat down search starting at the shoulders and working down, now he’s laying and his arms are outstretched in front of him. The first thing I felt was a pager on his belt.
[DISTRICT ATTORNEY:] And where was that located?
[DETECTIVE AZPELL:] I believe it was on the right side.
[DISTRICT ATTORNEY:] Okay.
[DETECTIVE AZPELL:] As I came down, I felt a lump in his left pocket, and when I got — when I was coming down on the right side, I felt something bulky but it was — I could feel things and hear like a crunching noise when I squeezed it. I . . .
[DISTRICT ATTORNEY:] Detective, how long have you been involved in narcotics work?
[DETECTIVE AZPELL:] About five years.
[DISTRICT ATTORNEY:] And how long as a law enforcement officer generally?
[DETECTIVE AZPELL:] Fourteen years.
[DISTRICT ATTORNEY:] And had you felt that type of a feel before?
[DETECTIVE AZPELL:] Yes.
[DISTRICT ATTORNEY:] Have you been engaged in narcotics investigations in the past?
[DETECTIVE AZPELL:] Yes.
[DISTRICT ATTORNEY:] Had you made street narcotics arrests in the past?
[DETECTIVE AZPELL:] Yes.
[DISTRICT ATTORNEY:] Had you dealt with informants in the past?
[DETECTIVE AZPELL:] Yes.
[DISTRICT ATTORNEY:] Had you gained knowledge regarding the packaging and distribution methods of marijuana and cocaine?
[DETECTIVE AZPELL:] Yes.
[DISTRICT ATTORNEY:] Had you seen packaging of marijuana in the past?
[DETECTIVE AZPELL:] Yes.
[DISTRICT ATTORNEY:] Based on what you — had you attended seminars and educational classes regarding sales and packaging of drugs?
[DETECTIVE AZPELL:] Yes.
[DISTRICT ATTORNEY:] And based on what you felt, what did you believe you felt?
[DETECTIVE AZPELL:] I believed what I was feeling was a bag of dope. But then when I reached down, I could see part of the bag sticking out — the plastic bag was actually sticking out of his pocket.
[DISTRICT ATTORNEY:] Could you see any contents of that bag at that point?
[DETECTIVE AZPELL:] No. I could just see the plastic.
[DISTRICT ATTORNEY:] Now, that was in what pocket? Jacket, pants?
[DETECTIVE AZPELL:] Pants pocket. Right pants pocket.
[DISTRICT ATTORNEY:] And when you saw that plastic sticking out, what did you believe at that point?
[DETECTIVE AZPELL:] I believed then what I felt was a bag of drugs. Dope.
[DISTRICT ATTORNEY:] Had you in the past observed narcotics of various types packaged in plastic?
[DETECTIVE AZPELL:] Hundreds if not thousands of times.

Notes of testimony, 3/2/93 at 62-64.

Relying on this testimony, the majority finds that, “[p]lain touch’ merely permits the officer to invoke probable cause to search during [a Terry ] frisk as the result of his sense of touch coupled with the surrounding circumstances and his personal knowledge, experience and common sense.” However, this is not how the Minnesota v. Dickerson court envisioned the operation of the plain feel exception.

Essentially, the majority has considered factors extrinsic to the tactile sense of the frisking officer such as the surrounding circumstances of the frisk and/or the personal knowledge and experience of the officer. The Supreme Court did not consider such factors in Minnesota v. Dickerson, and instead clearly delimited a very restrictive test rather than the expansive version espoused by the majority. This is not surprising given that the Supreme Court regards the plain feel exception as an offshoot of the plain view exception. The court stated, concerning the plain view doctrine:

Under that doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some farther search of the object — i.e., if ‘its incriminating character [is not] “immediately apparent,” ’ — the plain-view doctrine cannot justify its seizure.

Minnesota v. Dickerson, 508 U.S. at -, 113 S.Ct. at 2136-2137, 124 L.Ed.2d at 345 (citations omitted, bracketed matter in original).

It is interesting to note that the extrinsic factors in Minnesota v. Dickerson are similar to those found instantly. There, the police arrived at the scene of a “notorious crack house,” a twelve unit apartment building in Minneapolis, armed with several search warrants for the premises. Upon arriving, they observed the defendant leave the building and begin walking toward them. However, when the defendant spotted the squad car and made eye contact with one of the officers, he abruptly halted and began walking in the opposite direction. The police then stopped the defendant and conducted a Terry frisk. As the officer testified:

‘[A]s I pat-searched the front of his body, I felt a lump, a small lump, in the front pocket. I examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane.’ Tr 9 (Feb. 20, 1990).

Minnesota v. Dickerson, 508 U.S. at -, 113 S.Ct. at 2133, 124 L.Ed.2d at 341. Rejecting this type of manipulation by the officer to confirm his beliefs, and ignoring the surrounding circumstances leading to the search, the Supreme Court crafted a very restrictive, objective test for invoking the plain feel doctrine. Simply put, the nature of the contraband contained on a suspect’s person must be “immediately apparent” based on the officer’s sense of touch and absent any sort of manipulation.

Like the police officer in Minnesota v. Dickerson, the officer in the matter before us was reasonable in suspecting that criminal activity might be afoot, based upon the surrounding circumstances and his personal knowledge and experience, and was entitled to conduct a protective Terry frisk for weapons. However, he was not justified in manipulating the object which he felt in appellant’s pocket, to confirm his suspicion that it was contraband. I find that he violated the confines of the strictly circumscribed search for weapons under Terry, and in so doing, the search “therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize.” Minnesota v. Dickerson, 508 U.S. at -, 113 S.Ct. at 2139, 124 L.Ed.2d at 347.

According to the testimony, when the officer first patted appellant’s pocket, all he felt was “something bulky.” Only after the officer “squeezed it” was he able to assess the contents. However, it was this very sort of manipulation, this squeezing, that caused the United States Supreme Court to rule in Minnesota v. Dickerson, that the police search exceeded the bounds of Terry. Although the court recognized the plain feel doctrine, it specifically found that manipulating or squeezing the object in the suspect’s pocket went beyond the confines permitted under Terry.

Finally, I find that the case chiefly relied upon by the majority, Commonwealth v. Johnson, 429 Pa.Super. 158, 631 A.2d 1335 (1993), is distinguishable. I will concede that the Johnson court combined the officer’s tactile impression with the surrounding circumstances and his personal knowledge and experience in order to justify the plain feel seizure. However, it is clear that the majority relied heavily on the officer’s testimony that there was no need for manipulation and that the nature of the object was “immediately apparent”:

Here, the officer articulated in detail regarding the specific nature of his perception. The record is, therefore, sufficient to establish that the officer’s tactile impression combined with his years of experience, led him to reasonably conclude that what he felt was controlled substance. The perceived consistency and location of the package [in Johnson’s crotch] together with surrounding circumstances combined sufficiently to betray the illegal nature of the object on appellee’s person. Compare Commonwealth v. Marconi, supra, 408 Pa.Super. 601, 597 A.2d 616 (rock or pebble like object in pocket not sufficiently identifiable through tactile impression). There was no need to manipulate the object, or alter in any way the justified pat-down, in order to identify the contraband. Rather, the identity of the cocaine became ‘immediately apparent’ through only a minimally intrusive and constitutionally permissible pat-down....

Commonwealth v. Johnson, at 168, 631 A.2d at 1340-41 (citation to notes of testimony and footnote omitted).

Accordingly, I would suppress the evidence instantly and must dissent from the majority’s failure to do so.

      . 35 P.S. § 780-113(a)(16).

      . Id., § 780-113(a)(30).

      . Id., § 780-113(a)(32).

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

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


source: Caselaw Access Project

author: OLSZEWSKI, Judge: BECK, Judge,

license: Public Domain

text:
    654 A.2d 1093
    Allen L. FEINGOLD, Appellant, v. Barry PUCELLO, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1994.
    Filed Jan. 13, 1995.
    Reargument Denied March 22, 1995.

      Allen L. Feingold, Philadelphia, for appellant.
    Kenneth S. Cooper, Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   OLSZEWSKI, Judge:

On February 2, 1979, Barry Pucello was involved in a motor vehicle accident. One of Pucello’s co-workers knew Allen Feingold, a personal injury attorney, and asked if he could give Feingold Pucello’s name. Pucello agreed.

Feingold called Pucello that very evening. Pucello explained that he wasn’t feeling well, having just been in an accident, and would call back tomorrow. Feingold recommended a doctor he knew, and set up an appointment for Pucello. The next day, the two discussed the possibility of Feingold’s representing Pucello. Pucello gave Feingold some basic information, but did not discuss fee arrangements.

Feingold then went to work on the case. He inspected the accident site, took pictures, obtained the police report, and secured an admission of liability from the other driver. He had still never met with Pucello in person. Towards the end of February, Feingold mailed a formal contingency fee agreement to Pucello, which called for a 50/50 split of the recovery,, after costs. Pucello balked at the high fee, and found other counsel. Pucello told Feingold he could keep any pictures, reports, and admissions; Feingold never forwarded the file.

About a year later, Feingold sued Pucello in quantum meruit. A board of arbitrators unanimously found for Pucello. Feingold appealed to the Philadelphia Court of Common Pleas. After much procedural delay, the parties had a de novo bench trial. The trial court found that while Feingold might have had a quantum meruit claim if Pucello retained him and then fired him midway through- the case, here the parties never even entered into an attorney-client relationship. The trial court thus found for Pucello, and Feingold appeals.

Feingold argues that Pucello orally agreed to have Feingold represent him, so he is entitled to be paid for the work he did even though Pucello never signed a written fee agreement. The trial court found that by working on the case without the agreement, Feingold proceeded at his own risk. Since there was never a meeting of the minds regarding representation, there was no contract and no obligation to reimburse for his work on the case. Feingold acknowledges the absence of an express contract, but argues that the circumstances imply a contract to support quantum meruit recovery. He contends that Pucello enjoyed the benefits of his efforts despite rejecting his work product: Feingold got Pucello a doctor’s appointment, and once the tortfeasor admitted liability, he was unlikely to deny it later.

Quantum meruit is an equitable remedy. Dept. of Environmental Resources v. Winn, 142 Pa.Cmwlth. 375, 597 A.2d 281, 284 n. 3 (1991), alloc. denied 529 Pa. 654, 602 A.2d. 863 (1992). We therefore begin our analysis by noting that Feingold comes to this court with hands smudged by the ink which should have been used to sign his fee agreement. Pa.R.C.P. 202, now rescinded, was in effect in the late 1970’s. This rule required attorneys to put contingency fee agreements in writing. Pa.R.C.P. 202, 42 Pa.C.S.A. The rule was rescinded because it duplicated Rule 1.5(b) of the Rules, of Professional Conduct, which requires attorneys to state their contingency fee in writing “before, or within a reasonable time after commencing representation.” As the trial court aptly noted, the whole point of these rules is to avoid precisely the sort of situation Feingold brings to the court. Opinion 3/29/94 at 8.

Secondly, Feingold’s proposed contingency fee of 50% of the recovery, after costs, is breathtakmgly high. It struck the trial court as unethical. N.T. 7/13/88 at 21. By pricing his services at the top end of the spectrum, Feingold should expect some prospective clients to balk. This makes stating the fee agreement up front all the more important. Contingency fee practice used to be badly abused by practitioners who would assure their injured clients not to worry — the case was in good hands. When the relationship had passed the point of no return and the client’s reliance was entrenched, then the attorney mentioned what his hefty percentage of the take would be. The only way to counter this abuse was to require that attorneys state contingency fees up front and in writing. This is also why the requirement evolved from a procedural rule into an ethical rule. We think Feingold’s abject failure to comply with this rule precludes any equitable recovery.

Even without these equitable considerations, Feingold’s claim still fails on its merits. In rejecting the proposed fee agreement, Pucello told Feingold to keep his work-product. Thus Feingold did not confer any tangible benefit on Pucello. Feingold argues that having admitted liability to Feingold, the tortfeasor was constrained from altering his story, which facilitated settlement. If so, then Feingold’s claim would more properly lie against Pucello’s attorney, who testified that he still could have won the case without Feingold’s preliminary work. Id. at 32. Thus, Pucello would have gotten his recovery either way; it is only Pucello’s attorney whose job might have been facilitated by Feingold’s services. See Johnson v. Stein, 254 Pa.Super. 41, 385 A.2d 514 (1978).

Feingold likens himself to the surgeon who may render emergency medical treatment first, and then ask for payment later. Appellant’s reply brief at 1. Pucello’s claim had a two-year statute of limitation, and was for the sole purpose of obtaining money, not saving his life. Feingold could have held off working on the case long enough to properly commence the relationship by stating his contingency fee up front, and should have under our procedural and ethical rules. When Pucello learned of Feingold’s exorbitant rates, he understandably balked and told Feingold to keep his file. Feingold’s unclean hands and Pucello’s rejection of his services clearly preclude any quantum meruit recovery.

Order affirmed.

DEL SOLE, J., concurs in the result.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring.

I concur in the result reached by my colleague. I do so, however, on the narrow basis that appellant has failed to make out a claim in quasi-contract that would entitle him to restitution from appellees.

Appellant has conceded that the facts in this case do not support a finding that a contract for legal services was reached between him and appellee Pucello. His only claim on appeal is that the trial court erred in denying his quantum meruit claim on the basis that there had been no meeting of the minds between the parties. In this appellant is correct, for

“[ujnlike true contracts, quasi-contracts are not based on the apparent intention of the parties to undertake the performances in question, nor are they promises. They are obligations created by law for reasons of justice.” Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 290, 259 A.2d 443, 449 (1969), quoting Restatement (Second) of Contracts, § 5, comment b. at 24. “Quasi contracts may be found in the absence of any expression of assent by the party to be charged and may indeed be found in spite of the party’s contrary intention.” Schott v. Westinghouse Electric Corporation, supra at 290-91, 259 A.2d at 449.

Martin v. Little, Brown and Co., 304 Pa.Super. 424, 430-431, 450 A.2d 984, 988 (1981). However, this error by the trial court does not warrant reversal of its judgment because it is clear that the facts of this case cannot, as a matter of law, support a quantum meruit recovery by appellant.

A cause of action in quasi-contract for quantum meruit, a form of restitution, is made out where one person has been unjustly enriched at the expense of another. Martin v. Little, Brown and Co., supra (citing DeGasperi v. Valicenti, 198 Pa.Super. 455, 457, 181 A.2d 862, 864 (1962)).

The elements of unjust enrichment are “benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.” Wolf v. Wolf, 356 Pa.Super. 365, 514 A.2d 901 (1986), overruled on other grounds, Van Buskirk v. Van Buskirk, 527 Pa. 218, 590 A.2d 4 (1991); see also Burgettstown-Smith Township Joint Sewage Authority v. Langeloth Townsite Co., 403 Pa.Super. 84, 588 A.2d 43 (1991).

Styer v. Hugo, 422 Pa.Super. 262, 267, 619 A.2d 347 (1993), affirmed 535 Pa. 610, 637 A.2d 276 (1994). The most significant element of the doctrine is whether the enrichment of the defendant is unjust. Id. Thus to sustain a claim of unjust enrichment, it must be shown, “that a person wrongly secured or passively received a benefit that it would be unconscionable to retain” without making payment. Martin v. Little, Brown and Co., supra (citing Brereton’s Estate, 388 Pa. 206, 212, 130 A.2d 453, 457 (1957); Crossgates Realty, Inc. v. Moore, 279 Pa.Super. 247, 420 A.2d 1125, 1127-28 (1980); Roman Mosaic & Tile Co., Inc. v. Vollrath, 226 Pa.Super. 215, 218, 313 A.2d 305, 307 (1973).

The facts of this case simply cannot support a finding that Pucello was unjustly enriched by appellant Feingold’s services. By refusing to accept Feingold’s files containing his work product, Pucello affirmatively rejected any direct benefit from Feingold’s services. Thus it is clear that acceptance and retention of the benefits of Feingold’s services, a necessary element of the claim of unjust enrichment, has not been established.

Appellant argues that despite Pucello’s refusal to accept his work product, Pucello nevertheless passively received benefits from Feingold’s services. He points to two specific benefits which he contends were received by Pucello. First, he asserts that Pucello’s ability to obtain an appointment with a conveniently located physician on short notice was a result of Feingold’s established relationships with the physician. Second, Feingold asserts that settlement of Pucello’s case was facilitated because Feingold obtained a written admission of liability from the driver of the car which struck Pucello, and the driver was constrained from denying liability when he was later interviewed by Pucello’s counsel. I cannot agree that either of these alleged “benefits,” even if received by Pucello, was sufficient to establish that Pucello was unjustly enriched.

Feingold’s assistance in arranging an appointment with a physician is not the type of service for which one would normally expect to pay, nor is it a professional legal service which has a value because- of the professional expertise required to render it. Accordingly, these services did not confer upon Pucello a benefit which it would be unconscionable to retain without making restitution. Similarly, Feingold’s claim that settlement of Pucello’s case was facilitated by the admissions made by the alleged tortfeasor to Feingold is entirely speculative. Because Feingold introduced no competent evidence to support his assertion that his work on the case had the effect he alleges, the record cannot support his claim that his services conferred a benefit upon Pucello.

Appellant’s claim for quantum meruit cannot be sustained in the absence of a finding of unjust enrichment which, in equity, requires restitution. Because the record in this matter will not support such a finding, his quantum meruit claim was properly denied. I would therefore affirm the trial court’s order.

      . Pucello had since moved to California, but was represented by counsel at the trial.

      . Pucello’s attorney also offered to reimburse Feingold for his out-of-pocket expenses, though not for his time. Id.

      . In fact, both old Pa.R.C.P. 202 and ethics rule 1.5(b) are mandatory, . not aspirational.


author: BECK, Judge: DEL SOLE, Judge,

text:
    654 A.2d 1096
    COMMONWEALTH of Pennsylvania v. Timothy BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 3, 1994.
    Filed Jan. 25, 1995.

      Bernard L. Siegel, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   BECK, Judge:

The single issue in this case concerns the authority of police to order a passenger out of a car stopped for a traffic violation. We hold that an officer, when making a lawful stop of a motor vehicle, may order the occupants out of the car despite the lack of a reasonable suspicion that the passengers are engaged in criminal activity.

The testimony presented at trial established the following. Appellant Timothy Brown was employed at a Dunkin’ Donuts store located in the Fox Chase area of Philadelphia. Sometime in October, 1991 appellant quit his job and then encountered difficulty in getting money he claimed the store owed him as a final paycheck. After speaking with the manager and being told that no money was due him, appellant suggested to two of his friends, Theodore Burns and Rodney Burns, that they rob the store. Appellant explained that the robbery should take place on a Sunday night since at that time the entire weekend’s receipts would be in thé store safe.

The Burns brothers agreed and the three men arrived at the store in the early morning hours on November 11, 1991 armed with three guns, a crowbar to open the safe and duct tape to bind the store’s employees. In order that he not be recognized, appellant waited outside while Theodore and Rodney Burns entered the store. The men drew their weapons on the two employees and one patron inside and ordered them to the rear of the store. After robbing them, the men taped their mouths and hands and forced them into a freezer. Once the employees were out of sight, Rodney opened the back door to let appellant inside. At that point a customer, Stephen Rivel, entered the store. He was taken at gunpoint to the rear of the store where he struggled with his captors. Rivel was shot several times in the legs, then his shirt was pulled up over his head and he was shot again, a single, fatal bullet to the back of his head. After taking whatever valuables could be found from the body, the men left Rivel on the floor by a drain in the back of the store.

The three then set about opening the safe and removed from it all of the weekend’s cash. They also emptied the cash register and fled in the car they had driven to the store. Within minutes, the employees freed themselves, exited the freezer and found Rivel’s body. They immediately called police. Philadelphia Police Sergeant James Owens heard the police radio broadcast of the crime which reported that two black males had committed a murder at the Dunkin’ Donuts and fled on foot. Owens, who knew the location of the store and knew that he would not be the first officer on the scene, decided to approach the area via Rising Sun Avenue, figuring this road to be a likely escape route should the men be in a vehicle.

Two and one half miles from the scene of the crime and within four minutes of receiving the radio call, Owens observed an automobile headed away from the Dunkin’ Donuts on Rising Sun Avenue. In the car he saw two black males. He was suspicious about the vehicle and noted that there appeared to be a lot of activity going on inside it. The windows were fogged to such a degree that Owens could barely see the occupants in the front seat and could observe nothing in the back seat. Owens turned his car around to begin following the vehicle in hopes of gaining more information about the crime over his radio. He then noticed that the car did not have a proper license tag and had only a piece of paper attached to the rear window.

Because of the motor vehicle violation he observed, Owens put oh his lights, ordered the car to stop and called for backup. Rodney Burns, the driver, obeyed the officer’s command and pulled the ear to the side of the road. Owens approached the driver and requested his license and registration. Rodney could produce neither and was ordered out of the car. At that point another police vehicle arrived and Owens directed Rodney to the rear of the car, went around to the passenger side and ordered the front seat passenger, Theodore Burns, out of the vehicle. At this point, Owens noticed for the first time that another black male, appellant, was seated in the back of the car. Owens asked his fellow officers to attend to Theodore and Rodney Burns while he ordered appellant from the car. After appellant exited the vehicle, Owens saw on the back seat a Dunkin’ Donuts bag with money sticking out of it. He reached into the vehicle to retrieve the. bag and when he leaned on the back seat, the entire seat came forward and exposed what lay underneath: three guns and a trash bag filled with Dunkin’ Donuts bags, money, coupons and a worn-en’s purse. Owens informed the other officers that he found the weapons; the car’s occupants were then arrested.

A further search of the car yielded a crowbar, a hammer and duct tape. Identification in the purse revealed that it belonged to one of the Dunkin’ Donuts employees. All three men were transported by police to the store where they were identified by the victims of the crime. At the police station, each suspect gave a statement admitting to his involvement in the crime. The only material discrepancy in the statements was who fired the shot into Stephen Rivel’s head, causing his death. The three men were charged with murder, robbery and related offenses and were tried together before a jury. Each was found guilty of second degree (felony) murder, as well as the robberies of the store, the employees and the patron. In this timely appeal by appellant only, he raises a single issue for our review, namely, whether the trial court erred in failing to suppress the evidence discovered by Sergeant Owens.

Appellant has advanced a clear and concise statement of the issue on appeal. He does not question the officer’s authority to stop the vehicle in which he was riding nor does he claim that the driver of the car should not have been ordered to alight from the vehicle. Appellant’s sole basis for challenging Sergeant Owens’s actions is his alleged lack of authority to order appellant, a passenger, out of the car. Lacking probable cause to arrest or an articulable suspicion of criminal activity, appellant argues, police cannot command a passenger to exit a vehicle where the only lawful reason the car has been stopped is a violation of the traffic code. Since all the evidence recovered from the car resulted from Owens’s observation after appellant got out of the car, all of it should have been suppressed as fruit of the illegal order to leave the vehicle.

We begin our review by first noting what is not before us. The argument advanced by appellant could be made under either the Fourth Amendment to the United States Constitution or Article I, Section 8 of the Pennsylvania Constitution, both of which prohibit unreasonable searches and seizures. Despite appellant’s vague attempts to argue that his position “stands as the established rule of law in Pennsylvania,” he simply has not presented to this court an argument based on our state constitution.

All of the cases relied on by appellant were decided under the Fourth Amendment, not Article I, Section 8. Indeed, there simply is no authority for appellant’s position that is based on state constitutional principles. Our only source of analogous case law is rooted in federal constitutional principles. In the absence of state constitutional authority, appellant must convince this court to consider and interpret Article 1, Section 8 in a manner different than the United States Supreme Court’s analysis of the Fourth Amendment.

Our supreme court has made it clear that where a litigant seeks to depart from federal constitutional interpretation or precedent on the basis of a state constitutional principle, or seeks to extend the state constitution beyond that which has been decided with regard to a parallel provision of the federal constitution, he or she must satisfy the requirements set forth in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991).

Here, appellant simply has not satisfied the mandates of Edmunds, even to a minimum degree, and his failure to do so results in waiver of the state constitutional claim. Commonwealth v. Lucas, 424 Pa.Super. 173, 622 A.2d 325 (1993), appeal denied, 537 Pa. 648, 644 A.2d 733 (1994). Therefore, our decision today focuses solely on the federal constitution and our analysis reflects only Fourth Amendment law.

As stated previously, the single issue on appeal is the trial court’s denial of suppression based on the legal conclusion that Sergeant Owens acted properly in ordering appellant from the car. Appellant contends that this conclusion was an error of law which must be reversed by this court. Clearly, our review extends to all legal conclusions made by a suppression court. Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115, 1116 (1993) (one of appellate court’s responsibilities is to review suppression court’s legal conclusions).

Appellant insists that the controlling case in this matter is Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973). In Pollard, the appellant was a passenger in a car which was pulled over for failing to stop at a red light. The passenger/appellant was ordered from the car and when he complied, a white packet containing drugs dropped from his hand. He was placed under arrest and ultimately found guilty of possession of narcotics. With respect to the validity of the order that appellant exit the vehicle, the Commonwealth argued that the police officer’s actions were justified as an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Our supreme court disagreed and held that the seizure which occurred when appellant was ordered out of the car was violative of the Fourth Amendment because the officer’s actions did not satisfy Terry, that is, he had no reasonable belief that criminal activity was afoot and that appellant was armed and dangerous. Pollard, supra, 450 Pa. at 141-42, 299 A.2d at 234-35. Therefore, the court reasoned, no lawful justification existed for the officer’s action. Id. at 143, 299 A.2d at 235-36.

Several years after Pollard, our supreme court decided Commonwealth v. Mimms, 471 Pa. 546, 370 A.2d 1157 (1977) (Mimms I). In Mimms I, the appellant was the driver of a vehicle which was stopped for. an expired license tag. The officer told the appellant to step out of the car and produce identification. The Commonwealth conceded that the officer did not suspect any criminal activity on the appellant’s part. Instead, the driver was ordered out of the car as a matter of course, the policy having been adopted by police as a precautionary measure for the safety of the officer. Once the appellant was outside the vehicle, the officer noticed a large bulge in his jacket, frisked him and found a loaded revolver. The appellant was convicted for carrying a concealed deadly weapon and argued on appeal that the officer had no authority to order him from the car based merely on the underlying traffic violation.

Our supreme court agreed and, relying on Pollard, held that the order to get out of the car was an impermissible seizure under the Fourth Amendment because the officer could not articulate “objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety.” Mimms I, supra, at 552, 370 A.2d at 1160.

The United States Supreme Court granted certiorari and reversed the Pennsylvania Supreme Court. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (Mimms II). In Mimms II, the Court considered the reasonableness of the officer’s action by balancing the public interest in insuring the safety of law enforcement personnel against “the individual’s right to personal security free from arbitrary interference by law officers.” Id. at 109, 98 S.Ct. at 332.

Relying on studies about the incidence of assaults and murders of police officers resulting generally from contacts with suspects in motor vehicles and specifically from contacts with persons stopped for traffic violations, the Court found the safety of the officer to be “both legitimate and weighty.” Id. at 110, 98 S.Ct. at 333. In balancing this important interest against the intrusion into a driver’s personal liberty occasioned by an order to get out of the car, the Court described the individual interest as “de minimus.” The Court concluded:

The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver’s seat of his car or standing along side it____ What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.

Id. at 111, 98 S.Ct. at 333.

In accordance with Mimms II, this court subsequently has held that where an officer effectuates a valid traffic stop, he or she may order the driver to exit the vehicle despite the lack of an articulable basis to believe that criminal activity is afoot or that the driver is armed and dangerous. See Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177, 181, appeal denied, 533 Pa. 598, 617 A.2d 1273 (1992). See also Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654, 660 (1988), appeal denied, 521 Pa. 617, 557 A.2d 721 (1989) (Mimms II makes it clear that the officer need not articulate any reason for ordering the driver from the vehicle when the vehicle is lawfully detained for a traffic violation.).

It is appellant’s position that Pollard has not been effectively overruled by Mimms II because Mimms II involved the driver of a car and Pollard involved a passenger. We disagree; both Pollard and Mimms I were based on an erroneous interpretation of the parameters of the Fourth Amendment under the circumstances of a valid traffic stop. In deciding those cases, our supreme court did not have the benefit of the United States Supreme Court’s reasoning espoused in Mimms II.

Subsequent case law suggests that while the particular circumstances of a police officer ordering a passenger from a lawfully stopped car have not been addressed directly by our courts, the logic and reasoning in Mimms II dictates the ultimate result should such an issue be raised. In Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988), police stopped a vehicle because its rear view mirror was obstructed in violation of 75 Pa.C.S.A. § 4524. The officer noticed unopened beer bottles in the rear seat, a strong odor of alcohol and empty beer bottles strewn throughout the vehicle’s interi- or. After speaking with the driver of the car, the officer asked the passenger of the car for identification; the passenger was unable to produce any but admitted that he was nineteen years old. The officer then asked the passenger to exit the vehicle and when he complied, the officer saw a clear plastic bag containing marijuana protruding from under the passenger seat. Elliott, supra at 540-42, 546 A.2d at 656.

In addressing the validity of the officer’s order that the passenger get out of the car, a panel of this court held that the officer had a reasonable suspicion that criminal activity was afoot based on his observations of the beer and his knowledge that appellant was under the legal drinking age. The court then discussed the rationale of Mimms II:

Mimms [II] clearly holds that “officers may, consistent -with the Fourth Amendment, exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon.” We need not go so far as to hold that an officer who has lawfully stopped a vehicle for a traffic violation may order a passenger out of the vehicle as a matter of course, in the absence of either a reasonable suspicion that the occupant is involved in criminal activity or that he is armed and dangerous. While the rationale in Mimms [II] would seem to suggest this result, we simply hold today that where a police officer has lawfully stopped a vehicle for a traffic violation, he may order a passenger to alight from the vehicle when he has an articulable basis to believe that criminal activity is afoot without violating the Fourth Amendment.

Id. at 549, 546 A.2d at 660 (citations omitted) (emphasis supplied).

Recently, another panel of this court confronted a case where the passenger was ordered from a car that was stopped for a traffic violation. See Commonwealth v. Morris, 422 Pa.Super. 343, 619 A.2d 709 (1992),. appeal denied, 534 Pa. 654, 627 A.2d 731 (1993). Upon approaching the car, the officer observed the passenger stuffing a brown paper bag under the seat. The officer asked the passenger to exit the vehicle and then located the bag which contained clear vials of crack cocaine. The court found that the officer’s actions were justified because his observations “supported a genuine belief that his safety was in jeopardy and, at the very least, articulable suspicion that the bag contained contraband or a dangerous weapon.” Id. at 350, 619 A.2d at 712-13. In discussing the decisions in Mimms II and Elliott, the court then noted:

Though not a question before us, we point out that there would appear to be no basis for distinguishing between an officer’s authority to order a driver from a car, and an officer’s authority to order a passenger from a car when the officer reasonably fears in either case for his safety or believes that criminal activity is afoot.

Id. at 349, 619 A.2d at 712, n. 2.

The Commonwealth argues that Mimms II, Elliott and Moms are “controlling decisions that fully approve the authority of police to ask a passenger to get out of a car stopped for a traffic violation.” We disagree and believe this case to be one of first impression in which we are guided by the reasoning of similar cases, the persuasive authority of decisions of other courts and the common logic that attends situations such as the one presented here.. After careful consideration of the issue, we conclude that the reasoning underlying the result in Mimms II simply, recognizes that when an officer detains a vehicle for violation of a traffic law, it is inherently reasonable that he or- she be concerned with safety and, as a result, may order the occupants of the vehicle to alight from the car. The very same dangers recognized by the United States Supreme Court in Mimms II are present whether a lone driver or a vehicle filled with passengers is stopped. Indeed, due to the nature of the potential danger, an officer’s concerns can only increase with the number of occupants in a car. The Mimms II court aptly articulated the risk:

We think it too plain for argument that the State’s proffered justification — the safety of the officer — is both legitimate and weighty. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. “According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect in an automobile.” We are aware that not all these assaults occur when issuing a traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. Indeed, it appears “that a significant percentage of murders of police officers occurs when the officers are making traffic stops.”

Mimms II, 434 U.S. at 110, 98 S.Ct. at 333 (citations omitted). Because the potential danger to police increases, rather than diminishes, when passengers are present in a car, and because the safest , and, therefore, most appropriate method of mitigating that danger is to order the passengers to exit the vehicle so that they remain in full view of the officer, we hold today that police may request both drivers and their passengers to alight from a lawfully stopped car without reasonable suspicion that criminal activity is afoot. Our conclusion is grounded in the sound rationale of Mimms II which balanced the important interest in the safety of law enforcement officials against the de minimus intrusion to the occupants of the lawfully stopped car. We believe the Fourth Amendment is not violated by such a rule.

Our decision today reflects the reasoning of other courts that have reached the same conclusion. In reciting cases that either have held that police action of this type is appropriate or have implied that such action would be appropriate under the Mimms II rationale, the court in United States v. McCoy, 824 F.Supp. 467 (D.Del.1993), held that an officer’s command to passengers to exit a vehicle was proper because his initial stop of the car was lawful. Id. at 474. The court reasoned:

Such an extension of Mimms [II] is entirely consistent -with the balancing test utilized by the Supreme Court in the Mimms [II] opinion____ [I]T would be incongruous to permit an officer to order the driver out of his vehicle pursuant to a lawful stop in order to diminish the likelihood that the officer will be attacked with a concealed weapon, but not permit the officer to order the passengers out of a lawfully stopped vehicle, when those passengers present the same risk of attack and have the same access to concealed weapons.

Id. The particular facts of this case highlight the potential dangers that police officers face on a daily basis when making lawful traffic stops. Here, Sergeant Owens approached the vehicle without even being aware that a second passenger was in the rear seat of the car. That passenger had access to three loaded firearms, one of which had just been used to kill an unwitting citizen who had jeopardized the success of the occupants’ armed robbery. It is this type of scenario which prompted the United States Supreme Court to conclude that, in keeping with the Fourth Amendment, the interest in the safety of law enforcement officers outweighs the de minimus intrusion to the individual who is asked to step outside a lawfully stopped motor vehicle.

We find no error in the suppression court’s legal conclusion that Sergeant Owens acted properly in ordering appellant from the car. Judgment of sentence affirmed.

DEL SOLE, J., files a concurring and dissenting statement.

DEL SOLE, Judge,

concurring and dissenting statement.

I concur with the result reached by the Majority. Like Judge Beck, I too conclude that this matter is not presented to us in the form of a state constitutional issue. See Commonwealth v. Dorsey, 439 Pa.Super. 494, 654 A.2d 1086 (Ford Elliott Dissenting Opinion) (1995).

While I agree with the result reached by the Majority in affirming the trial court’s decision not to suppress evidence, I disagree with the need, in this case, to make so sweeping an analysis and pronouncement. The trial court found that the actions of the police officer were in keeping with the mandates of Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) and Commonwealth v. Elliott, 376 Pa.Super 536, 546 A.2d 654 (1988). With this I agree. In addition, I believe that Commonwealth v. Baer, 439 Pa.Super. 437, 654 A.2d 1058 (1994) is dispositive of this matter.

The trial judge determined:

The robbery was reported over the police radio as a shooting which occurred about 3:23 a.m. and a hospital case. The information was reported as two black males in a vehicle traveling south bound away from the store. Police sergeant James Owens who heard the report, was enroute to the scene when he saw a light blue Malibu Classic automobile with two black males traveling away from the scene. He saw no license plate on the vehicle. It had a homemade paper plate for a license plate. He made the “U” turn; followed the vehicle; radioed his plan and then stopped the vehicle for investigation. As he approached the vehicle he told the driver to get out and hand him the auto registration card. He told them that the purpose of the stop was to investigate the non-license plate. He also told them that he was investigating the shooting at the Dunkin’ Donut Shop. He told the second male to also get out, the officer observed a third male [Timothy Brown] in the back seat crouched down behind the drivers seat. ... he told that male to also get out ...

Trial court opinion pp 2 & 3.

Given Sergeant Owens’ knowledge of the recent murder and robbery which involved the use of guns, his observation of a vehicle in the early morning hours traveling away from the scene, and ultimately the presence of this defendant hiding in thé vehicle, I agree with the trial court that sufficient facts were presented to support Sergeant Owens’ belief that criminal activity was afoot and that his safety was at risk. Under established case law, that is all that was necessary. The issue which the Majority seeks to decide is not present in this case, and should await decision until a case with appropriate facts arises. As it stands, the Majority’s pronouncement is dictum.

      . The car had been modified to accommodate a stereo speaker system. The back seat was not bolted to the car but instead was simply "placed” in the rear of the car on top of the sound system.

      . Edmunds requires a litigant to brief and analyze the following four factors:
      1) the text of the constitutional provision,
      2) the history of the provision, including Pennsylvania case law,
      3) related case law from other states, and
      4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

        Edmunds, supra at 390, 586 A.2d at 895.

      . Appellant’s note that "both constitutions were cited in the pre-trial motions to suppress” does not relieve him of the requirements set out in Edmunds.

      . On remand, our supreme court did not revisit the issue based on a state constitutional analysis because the state claim had not been raised. See Commonwealth v. Mimms, 477 Pa. 553, 385 A.2d 334, 335 n. 6 (1978) (Mimms III).

      . The Commonwealth also argues that a very recent decision of this court, Commonwealth v. Baer, 439 Pa.Super. 437, 654 A.2d 1058 (1994), applies directly to this case. In Baer, the trial court suppressed evidence seized as a result of an officer’s order that the passenger get out of the car. This court reversed and held that under the circumstances of a lawful traffic stop, an officer may order a driver or a passenger from a car when the officer reasonably believes that criminal activity is afoot or fears for his safety. Id. at 443, 654 A.2d at 1061. The Baer court noted that, based on the facts found by the suppression court, the officer had reason to believe that the vehicle was stolen and that his safety was at risk. Id.

      While the decision in Baer may appear at first glance to be dispositive of the issue in this case, it actually is more similar to Elliott discussed above. In both Elliott and Baer, the court reviewed the particular circumstances of the traffic stop, including the responses and behavior of the vehicle's occupants, and concluded that the concerns addressed in Terry, supra (reasonable suspicion of criminal activity or perceived danger) were met.
      The instant case is more like Mimms II, wherein the officer could not articulate a specific reason for ordering the driver from the car, but did so as a matter of course for his safety. The distinction is significant because, unlike the holdings in Baer or Elliott, we hold here that in all cases involving lawful traffic stops, it is not unreasonable for an officer to request that the passengers in a lawfully stopped car exit the vehicle so that the safety of the officer is, if not insured, at least better protected.


author: SAYLOR, Judge:

text:
    654 A.2d 1104
    COMMONWEALTH of Pennsylvania, v. William ECK, Appellant, (Three Cases).
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1994.
    Filed Feb. 10, 1995.

      P.J. Redmond, West Chester, for appellant.
    William R. Scullion, Deputy Prosecutor, York, Martha J. Duvall, Asst. Dist. Atty., Gettysburg & David P. Wingert, Asst. Dist. Atty., Lebanon, for Com., appellee.
    Before CAVANAUGH, POPOVICH and SAYLOR, JJ.
   SAYLOR, Judge:

This is a consolidated appeal from the judgments of sentence of the Courts of Common Pleas of York County, Adams County and Lebanon County. We affirm.

During the early morning hours of June 28,1990, Appellant, William Eck, entered the York County residence of Rose Allander, who was asleep in her bedroom. Appellant had previously been involved in a sporadic relationship with Allander’s daughter. Arming himself with a long piece of wood, Appellant went to Allander’s bedroom and brutally beat her on the head while threatening and attempting to break her neck. As he was beating Allander, Appellant questioned her about her daughter. When Appellant was discovered by one of Allander’s sons, he dropped the piece of wood and fled from the home.

Later that same day, Appellant entered the Adams County residence of William and Sandra Anders, who were not at home. Appellant stole a .22 caliber pistol and. a box of ammunition, as well as several knives. Appellant then proceeded to the residence of Charles Bayer, which was also located in Adams County. Appellant, carrying the gun and bleeding from his right hand, complained that he had been dodging the police all day and told Bayer that if he tried anything, he would get hurt. Appellant then directed. Bayer to drive him to Lebanon County in Bayer’s van. During the trip, Appellant experienced auditory and visual hallucinations. Appellant parted company with Bayer at 6:30 p.m. that evening, leaving Bayer unharmed.

On the following day, June 29, 1990, Appellant entered the Lebanon County residence of Delores Tinker, who was not at home. While waiting for Tinker to return home, Appellant consumed food and beverages, took a shower, searched Tinker’s closet and drawers, and obtained bandages. When Tinker returned home at .9:30 p.m., she encountered Appellant in her utility room. Appellant pointed a gun at her, warned her not to do anything “stupid,” and ordered her to drive him to Jonestown, in Lebanon County. Tinker complied with Appellant’s demand and drove him to a trailer park in Jonestown, at which time she exited her vehicle and escaped from Appellant.

Appellant continued travelling in Tinker’s vehicle until he arrived in Monroe County, where he was apprehended by the Pennsylvania State Police. A .22 caliber pistol that matched the description of the gun which Appellant had pointed at Bayer was recovered from Appellant, and the pistol was determined to be the one that Appellant had taken from the Anders’ home.

Appellant was tried without a jury in York County and was found guilty but mentally ill on charges of aggravated assault, burglary, recklessly endangering another person and terroristic threats. Appellant was sentenced in the aggravated range on the aggravated assault charge, receiving a sentence of eight to twenty years imprisonment. Appellant received concurrent sentences on all other charges. Following the denial of his post-trial motions, Appellant filed a timely appeal.

A bench trial was also held in Adams County, where Appellant was found guilty but mentally ill on charges of kidnapping, unlawful restraint, false imprisonment, robbery, simple assault, terroristic threats, theft, unauthorized use and burglary. Appellant was sentenced, and later filed post-trial motions which the trial court denied. Appellant subsequently filed a timely appeal.

Appellant was also tried without a jury in Lebanon County and was found guilty but mentally ill on charges of burglary, kidnapping, unlawful restraint, simple assault, recklessly endangering another person, robbery, theft by unlawful taking, crimes with firearms and two counts of violating the Uniform Firearms Act. Appellant was sentenced, and following the denial of his post-trial motions, he filed a timely appeal.

In this consolidated appeal from the judgments of sentence of the Courts, of Common Pleas of York County, Adams County and Lebanon County, Appellant raises the following issues:

1) Whether the York County trial court erred in finding that Appellant’s mental illness was an aggravating factor in imposing Appellant’s sentence?
2) Whether the Lebanon, Adams and York County trial courts erred in holding Appellant criminally culpable for the acts proven at trial by verdicts of guilty but mentally ill?
3) Whether the Lebanon County trial court erred in concluding that the Commonwealth adduced sufficient evidence to convict Appellant of robbery?
4) Whether the Lebanon County trial court erred in concluding that the Commonwealth adduced sufficient evidence to convict Appellant of burglary?
5) Whether the York County trial court erred in concluding that the Commonwealth adduced sufficient evidence to convict Appellant of burglary?

First, Appellant contends that the York County trial court erred in sentencing him in the aggravated range for the crime of aggravated assault. Specifically, Appellant claims that the trial court erroneously considered his mental illness as an aggravating factor in imposing sentence.

The record in this case belies Appellant’s assertion. The trial court, in ruling on Appellant’s motion for modification of sentence, specifically enumerated the aggravating factors that it considered in imposing sentence: the nature of the crime in the instant case; the serious injuries inflicted on Rose Allander; Appellant’s history of violent crimes, including third degree murder; the fact that Appellant was on probation at the time he committed the instant offenses; the unlikelihood of rehabilitation; and Appellant’s threats to kill Rose Allander by breaking her neck. Although the trial court mentioned the fact that Appellant was mentally unstable at the time of the commission of the offense, there is no evidence that the court relied upon this factor in imposing the aggravated sentence; rather, the trial court based its decision on the other overwhelming factors which indicated Appellant’s violent disposition and the necessity to sentence him accordingly. Therefore, the York County trial court did not abuse its discretion in sentencing Appellant in the aggravated range for the crime of aggravated assault.

Secondly, Appellant contends that all three trial courts erred in finding that he was not legally insane under the current test for insanity in Pennsylvania, as initially set forth in M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng.Rep. 718 (1843), and later adopted by the Pennsylvania Supreme Court in Commonwealth v. Mosler, 4 Pa. 264 (1846). See, Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98 (1960). Under the M’Naghten Rule,

“to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was labouring under such a defect of reason, from the disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it that he did not know he was doing what was wrong.”

Commonwealth v. Woodhouse, supra, 401 Pa. at 249-250, 164 A.2d at 103, quoting M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng.Rep. 718 (1843).

The M’Naghten Rule was later codified by the Pennsylvania legislature in section 315 of the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 101 et seq., as follows:

For purposes of this section, the phrase “legally insane” means that, at the time of the commission of the offense, the actor was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong.

18 Pa.C.S.A. § 315(b).

In claiming that the trial courts erred in applying the M’Naghten Rule, Appellant requests that this court adopt the definition of legal insanity which is set forth in The Model Penal Code, drafted by the American Law Institute in 1962:

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirement of law.

Although Pennsylvania has declined to adopt this standard as the legal test for insanity, the legislature has incorporated it into the Crimes Code under the definition of “guilty but mentally ill.” 18 Pa.C.S.A. § 314. Under this section,

[a] person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found “guilty but mentally ill” at trial if the trier of fact finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the offense.

18 Pa.C.S.A. § 314(a). .

Here, Dr. Gerald Cooke, a psychologist who testified on behalf of Appellant at trial, stated that Appellant appreciated the wrongfulness of his conduct but, because of a mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law. Thus, under Pennsylvania’s legal definition of insanity, Appellant was not insane at the time he committed the offenses.

Nonetheless, Appellant urges this court to adopt the Model Penal Code definition of insanity, which is the same as Pennsylvania’s “guilty but mentally ill” standard, and thereby absolve him of criminal responsibility. Pennsylvania courts have repeatedly held that mental illness is not a defense to criminal conduct, see, Commonwealth v. Hatfield, 397 Pa.Super. 90, 579 A.2d 945 (1990); Commonwealth v. Sohmer, 519 Pa. 200, 546 A.2d 601 (1988); Commonwealth v. Ruth, 309 Pa.Super. 458, 455 A.2d 700 (1983); Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974), and the constitutionality of 18 Pa.C.S.A. § 314 has repeatedly been upheld as well. See, Commonwealth v. Trill, 374 Pa.Super. 549, 543 A.2d 1106 (1988), allocatur denied, 522 Pa. 603, 562 A.2d 826 (1989). In Trill, the Superior Court noted that Commonwealth v. Trill, supra, 374 Pa.Super. at 595-596, 543 A.2d at 1129. Indeed, one of the goals of the Pennsylvania legislature in adopting 18 Pa.C.S.A. § 314 was to limit the number of persons who were escaping criminal responsibility through utilization of the insanity defense. Commonwealth v. Hatfield, 397 Pa.Super. 90, 579 A.2d 945 (1990), citing Commonwealth v. Trill, supra. See also, Commonwealth v. Morris, 385 Pa.Super. 563, 561 A.2d 1236 (1989).

[our] legislature settled upon what they believed to be the most comprehensive legal definitions available to describe the terms “mentally ill” and “legal insanity” and incorporated them into Pennsylvania’s guilty but' mentally ill statutory scheme____ We will not second guess the rectitude of this choice.

Accordingly, having found Appellant’s argument controverted by both case law and statute, we will neither revisit his contention, nor will we accept his invitation to reexamine the intent of the legislature in adopting the current legal definitions of insanity and “guilty but mentally ill.” Therefore, because the trial courts properly applied the .existing law of Pennsylvania in regard to insanity and the “guilty but mentally ill” verdict, we find no reversible error.

In his third, fourth and fifth issues, Appellant challenges the sufficiency of the evidence in support of his robbery and burglary convictions in Lebanon County and his burglary conviction in York County. In reviewing a challenge to the sufficiency of the evidence, this court must

view the evidence in the light most favorable to the Commonwealth and, drawing all reasonable inferences therefrom favorable to the Commonwealth, determine if there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.

Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984).

Appellant was convicted of robbery by the Lebanon County trial court. Appellant contends that because he was charged with robbery, as defined by 18 Pa.C.S.A. § 3701(a)(l)(v), his conviction cannot stand because he did not use force to obtain Tinker’s vehicle.

However, prior to the commencement of trial, the trial court permitted the Commonwealth to amend the criminal complaint so that Appellant’s actions, as stated under the robbery count of the complaint, constituted a violation of 18 Pa.C.S.A. § 3701(a)(l)(ii). Thus, proof that force had been used was not a necessary element of the crime charged. The Commonwealth established that Appellant pointed a gun at Tinker as he commanded her to drive him to Jonestown. This act, coupled with the circumstances under which the trip to Jones-town was made, was sufficient to establish that Appellant intentionally put Tinker in fear of, and did in fact threaten her with, serious bodily injury. Accordingly, the evidence was sufficient to support Appellant’s conviction for robbery.

Appellant was convicted of burglary by both the Lebanon County and York County trial courts. Appellant contends that he did not possess the requisite intent to commit a crime at the time he entered the residences of Tinker and Allander.

Burglary is defined by 18 Pa.C.S.A § 3502(a) as the entering of a building or occupied structure with the intent to commit a crime therein. Thus, the crime of burglary must be accompanied by specific intent. Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975). Here, contrary to Appellant’s assertion, the evidence supports the conclusion that Appellant specifically intended to commit a crime at the time he entered the residence of Allander, as well as at the time he entered the residence of Tinker.

In regard to Appellant’s burglary conviction for the acts he committed in York County, the evidence adduced at trial established that Appellant had previously stated that he hated Allander and was going to kill her. The specific intent to commit a crime necessary to establish the intent element of burglary may be found in a defendant’s words or conduct, or from the attendant circumstances together with all reasonable inferences therefrom. Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6 (1980), citing Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979). Here, Appellant’s statements, coupled -with his surreptitious entry into Allander’s home and his arming himself with a piece of wood, supports the conclusion that Appellant possessed the specific intent to commit the crime of aggravated assault at the time he entered Allander’s home. Accordingly, the York County trial court did not err in finding that the evidence was sufficient to support Appellant’s burglary conviction.

Similarly, the circumstances surrounding Appellant’s unauthorized entry into Tinker’s home in Lebanon County support the conclusion that Appellant intended to commit a crime at the time of entry. Commonwealth v. Tingle, supra; Commonwealth v. Madison, supra, 263 Pa.Super. at 206, 397 A.2d 818. See also, Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982) (specific intent as to' the crime of burglary may be inferred from the circumstances surrounding entry of the accused). Here, the evidence at trial established that Appellant had appropriated food and other household items upon entering Tinker’s residence, and that, in addition, several large pieces of duct tape were found hanging from a chair rail behind the entry door, suggesting an intent to confine or abduct Tinker. Accordingly, the evidence was sufficient to support the Lebanon County trial court’s finding that Appellant was guilty of burglary.

Judgments of sentence affirmed.

      . Appellant, in his first issue, challenges the discretionary aspect of the sentence he received for aggravated assault, claiming in essence that the trial court erred in considering his mental illness as an aggravating factor. As an initial matter, a challenge to the discretionary aspects of a sentence requires an appellant to set forth in his brief a separate concise statement of the reasons relied upon for allowance of appeal. Pa.R.A.P. 2119(f). Additionally, an appellant must raise a substantial question regarding the appropriateness of his sentence, which would permit this court to accept the appeal as to this issue. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Here, Appellant has failed to comply with either the provisions of Rule 2119(f) or Tuladziecki, and accordingly, has waived the issue. However, even if the issue was properly before us, a review of the record reveals it to be meritless.

      . Section 3701(a)(l)(v) of the Crimes Code requires that the defendant physically take or remove property from another person by force, however slight.

      . Section 3701(a)(l)(ii) of the Crimes Code requires that a defendant threaten another person with serious bodily injury or put the person in fear of serious bodily injury.