author: OLSZEWSKI, Judge: KELLY, Judge, JOHNSON, Judge,

text:
    633 A.2d 172
    In the Interest of S.D. Appeal of S.D.
    Superior Court of Pennsylvania.
    Submitted June 7, 1993.
    Filed Nov. 5, 1993.

      John W. Packel, Owen W. Larrabee, Asst. Public Defenders, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., participating party.
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   OLSZEWSKI, Judge:

On October 31, 1992, at 5:25 a.m., Police Officer Jose Acevedo spoke to a pedestrian who claimed there were two armed black men with drugs around the corner. Approximately fifty feet from where he received this information, Officer Acevedo observed appellant S.D. standing with another man. No one else was in the vicinity. Since Acevedo had been told they were armed, he immediately performed a “pat-down” search during which he felt a large hard object in S.D.’s pocket. He then removed a clear plastic bag containing 50 plastic vials of crack cocaine. N.T. 12/8/92 at 5-10, 21. S.D. was arrested and charged with possession of a controlled substance with intent to deliver and simple possession. S.D. filed a motion to suppress the cocaine which was heard before the Honorable Sheldon C. Jelin. The motion was denied and S.D. was tried and adjudicated delinquent. This timely appeal from the adjudication of delinquency followed.

S.D.’s sole contention on appeal is that the trial court erred in denying his motion to suppress the fifty vials of crack cocaine. On appeal from a motion to suppress, we only review whether the record supports the trial court’s factual findings and whether the trial court’s legal conclusions drawn from the facts are in error. Commonwealth v. Merkt, 411 Pa.Super. 127, 600 A.2d 1297 (1992); Commonwealth v. Medley, 531 Pa. 279, 282, 612 A.2d 430, 432 (1992). In this case, we must determine the validity of the trial court’s legal conclusion that Officer Acevedo had reasonable suspicion to stop and frisk S.D. As this Court has stated,

[pjursuant to the landmark decision of Terry v. Ohio, 392 U.S. 1, 88 S.Ct 1868, 20 L.Ed.2d 889 (1968), a police officer may temporarily detain a person if he observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot.

Commonwealth v. Patterson, 405 Pa.Super. 17, 20, 591 A.2d 1075 (1991). The reasonable suspicion necessary to justify a Terry stop is less stringent than probable cause, but the detaining officer must have more than a hunch as the basis for his stop. Id. “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability.” Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990).

Guided by this standard, our review of the record reveals that the trial court was presented with sufficient evidence to justify both the initial investigatory stop of S.D. and an immediate frisk. At the outset, we note that a police officer need not personally observe the illegal or suspicious conduct which lead him or her to believe that criminal activity is afoot and that a person is armed and dangerous. Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986). Under such circumstances, we must consider “the specificity of the description of the suspect in conjunction with how well the suspect fits the given description, the proximity of the crime to the sighting of the suspect, the time and place of the confrontation, and the nature of the offense reported to have been committed.” Id. at 438, 519 A.2d at 430; Commonwealth v. Whelton, 319 Pa.Super. 42, 465 A.2d 1043 (1983). Viewing these factors under the totality of the circumstances, Terry, supra, we find that the informant gave sufficiently reliable information to justify the stop.

Officer Acevedo acted pursuant to a tip from a concerned citizen who claimed to have witnessed the fact that S.D. and another man were armed and possessed illegal narcotics. Although the informant only described the suspects as two black males, S.D. and the other man were the only people in the general vicinity. Moreover, the men were standing exactly where the informant said they would be standing, approximately fifty feet away. N.T. 12/8/92 at 6, 10. In certain situations even a very limited description may justify an investigatory search. See Commonwealth v. Chase, 394 Pa.Super. 168, 575 A.2d 574 (1990) (general description corroborated by suspect’s presence at “precise location” indicated); Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986).

We must also take into consideration that the area where these events took place was an area of high drug incidence and that the encounter took place at 5:25 in the morning. See Jackson, 359 Pa.Super. at 439, 519 A.2d at 431 (“the time and place of an encounter may indicate that a person, conspicuous through their solitary presence at a late hour or desolate location, may be the object of a search”); Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985) (sufficient cause to stop arising out of defendant’s location in an alley in the early hours of a snowy morning when streets were empty). The time and place of the encounter in this case provided an independent basis for the officer to act on the informant’s tip. See Patterson 405 Pa.Super. at 21, 591 A.2d at 1078 (combination of the neighbors’ reports and suspicious heavy foot traffic during early morning hours in dark alley of suspected “crack house” sufficiently justified Terry stop); Commonwealth v. Williams, 298 Pa.Super. 466, 471, 444 A.2d 1278, 1280 (1982) (“officer may obtain sufficient information from an informant ... that, when coupled with the circumstances, gives rise to a reasonable suspicion that the appellant is presently involved in criminal activity”).

Having legally stopped S.D. for investigation, Officer Acevedo was justified in performing an immediate pat-down search for his protection. To justify á frisk incident to an investigatory stop, the officer must point to “specific and articulable facts indicating the person they intend to frisk may be armed and dangerous; otherwise, the talismanic use of the phrase ‘for our own protection’ becomes meaningless.” Patterson, 405 Pa.Super. at 21, 591 A.2d at 1078. An investigatory stop is permissible under this standard when the officer has reason to believe “that the person they intend to frisk may be armed.” Jackson 359 Pa.Super. at 439, 519 A.2d at 431; see also Commonwealth v. Capers, 340 Pa.Super. 136, 489 A.2d 879 (1985) (search justified when suspect is reported to possess or has used a weapon). Here, the frisk was justified since the officer was informed by an alleged eyewitness that the suspects were armed. Alternatively, the frisk was justified on the basis that the officer reasonably believed that the suspects were dealing drugs. In fact, this Court adopted a new rule in Patterson, stating that “[tjoday we additionally join the growing number of courts who have taken judicial notice of the fact that drug dealers are likely to be armed and dangerous.” Id. 405 Pa.Super. at 22, 591 A.2d at 1078.

Finally, we turn to S.D.’s contention that Officer Acevedo exceeded the scope of a permissible pat-down search when he retrieved the cocaine vials from his pocket. The scope of a Terry search is very limited since its sole justification “is the protection of the police officer and others nearby, ... it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of a police officer.” Commonwealth v. Canning, 402 Pa.Super. 438, 440, 587 A.2d 330, 331 (1991) (citing Terry v. Ohio, supra). Under the law of this Commonwealth, a more intrusive search of a suspect’s person following a protective pat-down search would only be justified under a Terry analysis where the officer reasonably believed he had felt what appeared to be a weapon. See In Interest of Dixon, 356 Pa.Super. 105, 514 A.2d 165 (1986) (scope of Terry search exceeded where there was no evidence officer reasonably believed suspect was armed and dangerous and where heart-shaped charm discovered during search could not reasonably be mistaken for a weapon); Canning, supra (assuming officer had probable cause to frisk suspect, search was not confined to items which could have reasonably appeared to be weapons where items retrieved from suspect’s pocket included two small plastic bags containing white powder and marijuana leaves); Commonwealth v. Marconi, 408 Pa.Super. 601, 597 A.2d 616 (1991), alloc. denied 531 Pa. 638, 611 A.2d 711 (1992) (scope exceeded where pliable plastic packet containing aspirin or button-sized amount of cocaine retrieved).

Recently, however, the Supreme Court of the United States adopted the “plain feel” exception to the warrant requirement, holding that a police officer may seize non-threatening contraband detected through the sense of touch during a protective pat-down search. Minnesota v. Dickerson, — U.S. -, -, 113 S.Ct. 2130, 2132, 124 L.Ed.2d 334 (1993). Such action is permissible, the Court concluded, so long as the search stays within the bounds marked by Terry. Under the plain view doctrine, the seizure of contraband which is left in open view and observed by a police officer from a lawful vantage point neither invades a legitimate expectation of privacy nor constitutes a “search” within the meaning of the Fourth Amendment. Id.; Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion); Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The Court reasoned that the plain view doctrine:

has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search ... 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 warrant-less seizure would be justified by the same practical considerations that inhere in the plain view context.

Dickerson, supra — U.S. at-, 113 S.Ct. at 237. Thus, under the federal standard, if an 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--, 113 S.Ct. at 2137.

Prior to Dickerson, however, a panel of this Court expressed reservation with the so-called “plain feel” exception to the warrant requirement when applied to the search of an individual. Commonwealth v. Marconi, supra. The Court stated:

We might be inclined to agree that when a police officer feels the shape of a gun concealed in a bag, probable cause to search is present. U.S. v. Russell, 655 F.2d 1261 (D.C.Cir.1981), vacated in part by U.S. v. Russell, 670 F.2d 323 (D.C.Cir.1982); U.S. v. Portillo, 633 F.2d 1313 (9th Cir.1980). However, we are not willing to use this rationale to justify a search of an individual where probable cause cannot exist.

Id. 408 Pa.Super. at 614-15, 597 A.2d at 623 (emphasis in original). Writing for the majority, Judge Popovich addressed a rudimentary concern that police could assume any small object contained in a pocket could be drugs, noting the packet of drugs actually seized had no discernable or distinctive characteristics. The sense of touch, he explained, “is not so definitive as the recognition of certain sounds, smells or tastes.” Id. 597 A.2d at 623, n. 17. Judge Popovich therefore determined that during a cursory search for weapons, it would “constrain logic to conclude that a small packet could, with any sort of probability, be identified as an element of criminal activity.” Id.; but see Marconi concurring opinion by Kelly, J. (where officer frisks pursuant to reasonable fear that suspect is involved in criminal activity and possesses weapons, and discovers contraband other than weapons, no purpose announced under Terry served by excluding such evidence at trial). In the proper case, we must determine whether Dickerson is applicable under the Pennsylvania Constitution. See Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) (Pennsylvania courts are free to reject conclusions of United States Supreme Court so long as they remain faithful to minimum guarantees established by United States Constitution). This, however, is not such a case.

While it is clear that Officer Acevedo was justified in performing a pat-down search, there is simply no evidence to sustain the validity of the subsequent intrusion into S.D.’s pocket to retrieve the vials of cocaine. Officer Acevedo testifled at the suppression hearing that he “felt a bulge in [S.D.’s] right pants pocket” during the pat-down search. N.T. 12/8/92 at 6. He then stated he retrieved a bag containing numerous crack cocaine vials. Although Officer Acevedo was told that the suspects were carrying weapons and drugs, he never indicated what it was he perceived he had felt. Without such evidence, we cannot sustain the trial court’s conclusion that Officer Acevedo reached into S.D.’s pocket on the basis that he feared he had felt a weapon. Nor do we have occasion to explore the validity of the “plain feel” doctrine on the basis that Officer Acevedo recognized the vials as contraband. Consequently, we must conclude that the search exceeded the bounds of a Terry search in violation of S.D.’s constitutional rights.

For the foregoing reasons, the order denying S.D.’s motion to suppress physical evidence is reversed. Jurisdiction relinquished.

KELLY, J., concurs.

JOHNSON, J., dissents.

KELLY, Judge,

concurring:

I am compelled to agree with the majority that the seizure herein was unconstitutional. I am equally compelled, however, to express my disagreement with the means by which the majority reaches this conclusion.

The question of whether and to what extent it may be appropriate for the courts of this Commonwealth to provide greater rights to the individual is, of course, subject to much debate fueled by the underlying disagreement as to the proper role of courts in general. As an intermediate appellate level court, we need not, indeed may not, engage in such a discourse. We are bound to view our role as the Supreme Court of our Commonwealth has directed. Fortunately, it has offered us clear guidance in that regard. The Supreme Court of Pennsylvania has taken great pains to explain that we are to construe the Pennsylvania Constitution as providing greater rights to its citizens than the federal constitution “only where there is a compelling reason to do so.” Commonwealth v. Gray, 509 Pa. 476, 484-85, 503 A.2d 921, 926 (1985). The parties must brief and the court must analyze four aspects of any claimed distinction between the constitutions:

1) text of the Pennsylvania constitutional provision;
2) history of the provision, including Pennsylvania case-law;
3) related case-law from other states;
4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

Commonwealth v. Edmunds, 526 Pa. 374, 390, 586 A.2d 887, 895 (1991); Commonwealth v. Peterfield, 415 Pa.Super. 313, 320, 609 A.2d 540, 544 (1992), appeal denied, 533 Pa. 609, 618 A.2d 400 (1992); Commonwealth v. Carroll, 427 Pa.Super. 1, 628 A.2d 398 (1993) (en banc) (Cavanaugh, J. concurring). Although not stated expressly, it appears to be a necessary corollary to the Supreme Court’s guidance in this important area of constitutional analysis, that if no compelling distinction may be found, the courts of this Commonwealth are not entitled to construe the Pennsylvania Constitution as providing any greater rights than the floor level minimum guaranteed by the United States Constitution, as construed by the United States Supreme Court.

Instantly, appellant has challenged the propriety of the seizure of drugs on his person under both the federal and state constitution. The minimum protections provided to appellant under the federal constitution have recently been clarified by the United States Supreme Court in Minnesota v. Dickerson, — U.S. -, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). This, of course, is the final word as to the relevant constitutional guarantees under the United States Constitution. See Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). Under no circumstances may we question this holding or its applicability in Pennsylvania. Id. It is and will remain the law on the Fourth Amendment unless and until the United States Supreme Court reconsiders and rejects that holding. Id.

As the majority notes, the question of whether and to what extent the Pennsylvania Constitution is distinguishable from the federal constitution is not before us today. Neither party has properly briefed or advanced the issue, and we cannot do so for them. Commonwealth v. Edmunds, supra. Accordingly, this question is properly left for another day.

Nonetheless, the majority has interpreted in dicta the decision in Commonwealth v. Marconi, 408 Pa.Super. 601, 597 A.2d 616 (1991), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992). I believe it has done so incorrectly.

In Marconi the Superior Court was not interpreting a provision of the Pennsylvania Constitution. Rather, the constitutional question in Marconi was raised solely under the Fourth Amendment to the United States Constitution. Id. at 628 n. 8, 597 A.2d at 630 n. 8 (Kelly, J., concurring). Quite simply, Marconi has been overruled to the extent that it conflicts with Minnesota v. Dickerson, supra, which is, as United States Supreme Court precedent, the final word on the issue. Cooper v. Aaron, supra.

Moreover, I do not believe that the majority in Commonwealth v. Marconi, supra, specifically rejected the concept that tactile impressions gleaned during a Terry stop may justify the seizure of contraband. In this regard, I believe the Marconi majority well summarized its position in the following excerpt:

[W]e do not hold that under certain circumstances the sense of touch could not be used as an accurate technique of identity. At times, perception through touch is a tool as definitive as perception through the other senses. However, under the facts before us, we decline to extend the “plain view doctrine” to encompass “plain touch.”

Commonwealth v. Marconi, supra 408 Pa.Super. at 615 n. 17, 597 A.2d at 623 n. 17.

In any event, under the standard announced in Minnesota v. Dickerson, supra, the appellant’s rights were violated by the seizure. The officer who arrested appellant and seized the evidence from his person did not in any way describe the tactile impression he gleaned from his frisk of appellant. Far from the “immediately apparent” standard articulated in Minnesota v. Dickerson, supra, here the record adduced reveals nothing about the nature of the police officer’s impression. Under the Fourth Amendment, therefore, the seizure was unconstitutional.

JOHNSON, Judge,

dissenting.

I agree with my distinguished colleague that Officer Jose Acevedo was justified in conducting both an investigatory stop and an immediate frisk of the juvenile in this case. I cannot agree that the Honorable Sheldon C. Jelin committed any error in denying the motion to suppress physical evidence. Nor can I agree that a police officer must volunteer and affirmatively state “what it was he perceived he had felt” in order to withstand a suppression motion in a juvenile court proceeding. Accordingly, I must dissent.

At the adjudication hearing before Judge Jelin, Officer Acevedo testified as follows:

Q. Okay. Can you tell the judge what happened?
A. Sure. Your Honor, on that date and time I was on routine patrol and I received information about two black males armed with guns and narcotics.
Q. Officer, where did you get that information from?
A. From a passerby on Germantown and Diamond.
Q. What did you do with the information that passerby had given you?
A. After receiving that information, Your Honor, I went— around the corner on Marshall Street around to the twenty-2100 block of Germantown. When I observed this defendant (indicating) and another defendant.
I patted — I stopped them for investigation, at which time I felt a bulge in the defendant’s right pants pocket, and I retrieved it and observed numerous crack vials, alleged narcotics, containing a white substance — white chunky substance sealed with blue caps.
And the other defendant was frisked for my safety also and was recovered a — .

Motion to Suppress/Adjudicatory Hearing Transcript (M.S./ A.H.T.) December 8,1992 at 6. At the conclusion of the direct examination of Officer Acevedo by the Assistant District Attorney on the motion to suppress, the following appears in the record:

MS. KRAUSE [ADA]: I have no further questions of this officer.
THE COURT: Cross-examination.
MS. ADAMS [Assistant Defender]: Just one moment. (Whereupon, Ms. Adams conferred with the defendant off the record.)
MS. ADAMS: I don’t have any questions, Your Honor. THE COURT: Thank you. You may step down.
(Witness excused.)

Id. at 11.

In the suppression portion of this adjudication proceeding, the juvenile did not testify. S. Blake Adams, Assistant Defender, did not cross-examine Officer Acevedo and did not challenge the veracity or reliability of his testimony at any point in the proceedings. Officer Acevedo’s testimony that he felt a bulge in the juvenile’s right pants pocket, following his receiving information about two males armed with guns and narcotics is uncontested.

In adult criminal proceedings involving the denial of a motion to suppress, we must determine whether the factual findings mandated by Pa.R.Crim.P. 323(i) are supported by the record. Commonwealth v. Medley, 531 Pa. 279, 284, 612 A.2d 430, 432 (1992); Commonwealth v. Sanchez, 416 Pa.Super. 160, 166-67, 610 A.2d 1020, 1023 (1992), appeal denied, 533 Pa. 624, 620 A.2d 490 (1993). When the evidence supports the factual findings, we are bound by such findings; we may reverse only if the legal conclusions drawn therefrom are erroneous. Id. The Rules of Criminal Procedure do not apply to juvenile proceedings unless otherwise specifically provided. Pa.R.Crim.P. 1(a). Nevertheless, this Court has considered, without informed discussion of the point, the denial of a pre-hearing suppression motion in a juvenile proceeding. See, e.g., In Interest of A.P., 421 Pa.Super. 141, 617 A.2d 764 (1992), pet. for allow, of appeal 8 E.Alloc.Dckt. 93 (January 6, 1993).

At the conclusion of the presentation of the Commonwealth’s evidence on the pre-hearing suppression motion, Judge Jelin found that Officer Acevedo had both probable cause and reasonable suspicion to act in the manner in which he acted. M.S./A.H.T. at 15. In his Opinion filed February 16, 1993, Judge Jelin wrote, at page 4:

While patting down the defendant, Officer Acevedo felt a bulge in the defendant’s right pocket ... and retrieved 50 vials containing a white chunky substance. At that point in time, Officer Acevedo had “sufficient facts ... to warrant a prudent man in the belief that the person seized ha[d] committed, [was] committing or [was] about to commit a crime” and therefore, had probable cause to arrest the defendant. Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1989) [1969].

Judge Olszewski, after reviewing these facts and conclusions, states for the majority on this appeal:

Officer Acevedo testified at the suppression hearing that he “felt a bulge in [S.D.’s] right pants pocket” during the pat-down search. N.T. 12/8/92 at 6. He then stated he retrieved a bag containing numerous crack cocaine vials. Although Officer Acevedo was told that the suspects were carrying weapons and drugs, he never indicated what it was he perceived he had felt. Without such evidence, we cannot sustain the trial court’s conclusion that Officer Acevedo reached into S.D.’s pocket on the basis that he feared he had felt a weapon.

Majority Opinion at 176. I cannot agree with this conclusion.

The majority does not cite to any specific authority for its assertion that an affirmative statement as to the arresting officer’s “perception” is a necessary element in sustaining a denial of a suppression motion. The question before us is the legitimacy of the suppression court’s inference arising from the uncontradicted evidence that Officer Acevedo felt a bulge in the suspect’s pocket while searching for weapons. The majority, by imposing a requirement concerning the officer’s statement as to his perception or belief, removes from the suppression court its ability and authority to infer and draw conclusions where no contradictory statement is offered.

This case was submitted to our panel without oral argument. The novel position taken by my distinguished colleague, Judge Olszewski, is advanced in the Brief for Appellant, at the end thereof, with citations to Commonwealth v. Marconi, 408 Pa.Super. 601, 597 A.2d 616 (1991), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992) and, by way of footnote, to Commonwealth v. Canning, 402 Pa.Super. 438, 587 A.2d 330 (1991) and In the Interest of Dixon, 356 Pa.Super. 105, 514 A.2d 165 (1986). I find none of these cases apposite.

In none of the three cases cited by the Defender Association was the arresting officer informed that the suspect would be either armed or dangerous. In Marconi, a plain clothes officer approached the occupants of a vehicle parked in a school parking lot at 7:15 P.M. in daylight to determine whether either of the occupants, who had exchanged front seats, was intoxicated and why they had parked next to a school. The officer recognized both occupants as persons with whom he had prior contact in responding to domestic disputes. The trial court found as a fact that the officer had felt no weapons prior to reaching into the defendant’s rear pocket and removing two plastic bags. Marconi 408 Pa.Super. at 605-606, 597 A.2d at 618. The Defender Association cites Marconi for the principle that when items felt during a pat-down cannot be considered weapons, further retrieval cannot be legally condoned. I find nothing in the transcript of testimony in the case before us to compel a conclusion that Officer Acevedo had not, or could not, consider the bulge in S.D.’s pocket a weapon.

By the same token, in Canning, a stranger, without shirt, shoes and socks, had been pacing back and forth on a front porch in a residential area of Philadelphia. He appeared intoxicated and confused; he stated he was looking for his car. There, we found that the search and seizure of two packets from the defendant’s pants pocket could not be justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), because the officer did not articulate any specific facts to justify a reasonable belief that the person might be armed and dangerous nor did the officer confine his search to items that may have reasonably appeared to be weapons. Canning 402 Pa.Super. at 441, 587 A.2d at 331.

Finally, in In the Interest of Dixon, this Court concluded that the arresting officer may have reasonably believed that criminal activity was afoot, but the record contained no evidence to support any reasonable belief by the officer that the suspect was “armed and dangerous”. Dixon, 356 Pa.Super. at 108, 514 A.2d at 167.

In none of the cases cited by the Defender Association is there any suggestion that the “perception” of the arresting officer as to his thoughts while conducting a weapons search is controlling when reviewing the validity of a Terry search. In none of those cases is the suppression court’s authority to draw legal conclusions from uncontradicted facts in dispute. I find no abuse of discretion on the part of Judge Jelin in concluding that Officer Acevedo had reasonable grounds for removing a bulge from a suspect’s right pants pocket during a Terry stop and search, where the officer had information from which he could justifiably believe that the suspect was armed and dangerous.

Both of my colleagues assert that under the standard announced in Minnesota v. Dickerson, 508 U.S. ——, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), S.D.’s rights were violated by the seizure. I strongly disagree. Neither the appellant, S.D., nor the Commonwealth have had any opportunity to either brief or argue the points asserted in the lead opinion. This case was submitted to our panel without oral argument, presumably in the belief that it would be decided under well-established, existing legal principles.

Dickerson is inapposite on this submitted appeal, as the facts in Dickerson clearly demonstrate. That case is of no value in deciding whether Judge Jelin erred in the juvenile adjudication now before us. In Dickerson, the accused began walking toward a marked squad car in which two police officers were patrolling. Dickerson made eye contact with one of the officers, abruptly halted, began walking in the opposite direction, and turned and entered an alley. The officers ordered Dickerson to stop and submit to a Terry, pat-down search. The search revealed no weapons. Thereafter, the officer conducting the patdown felt a small lump in the front pocket of Dickerson’s nylon jacket.

After a jury trial and guilty verdict, Dickerson appealed to the Minnesota Court of Appeals which reversed the conviction, concluding both that (1) the seizure violated Terry v. Ohio principles and (2) a “plain feel” exception to the warrant requirement of the Fourth Amendment was not indicated. On further appeal, the Supreme Court of Minnesota affirmed the order reversing the judgment of conviction. It held that, even if a “plain feel” exception was to be recognized, the record in Dickerson’s case established that the officer who searched Dickerson did not immediately recognize the lump in Dickerson’s pocket as cocaine. The Minnesota Supreme Court expressly found that the officer determined that the lump was contraband only after squeezing, sliding, and otherwise manipulating the contents of the pocket, which the officer already knew contained no weapon.

In stark contrast, Judge Jelin was presented with uncontested facts that the police officer who searched S.D. had a justifiable belief that S.D. was armed and dangerous at the very moment the search began. My colleagues conclude that the removal, in the midst of a Terry search, of a bulging article from the front right pants pocket of a suspect believed to be armed offends constitutional principles. Dickerson does not support that conclusion, nor does any other case with which I am familiar.

I find no error in Judge Jelin’s disposition of this case. I would affirm the disposition order of December 8, 1992, which placed S.D. on intensive drug/alcohol probation. I must therefore respectfully dissent.

      . "[I]dentified citizens who report their observations of criminal activity to police are assumed to be trustworthy, in the absence of special circumstances.” Commonwealth v. Lutz, 298 Pa.Super. 473, 444 A.2d 1281 (1982); see also Commonwealth v. Bruner, 388 Pa.Super. 82, 564 A.2d 1277 (1989) (trustworthiness of information may be presumed when source is an eyewitness). This alone, provides justification to reject S.p.’s assertion that the informant's tip was not sufficiently reliable to justify the officer's investigatory search.

      . The Court also noted that the plain view doctrine has traditionally been associated with seizures, not searches. See, id. (collecting cases).

      . In response to the concurring statement, we wish to merely emphasize that we are not deciding a constitutional question in this case. Rather, we merely acknowledge the rather unremarkable proposition that our Supreme Court has held that, in certain instances, the analogous provisions in our State Constitution provide more protection to our citizens than does the Federal Constitution. Edmunds, supra. We also recognize that our Court decided Marconi under the Federal Constitution, however, we might call to the concurrence's attention that Marconi acknowledged our State Constitution as well. Marconi, supra 408 Pa.Super. at 603, 597 A.2d at 617 n. 1. Thus, while the concurrence is entirely correct in asserting that Marconi is overruled insofar as it is inconsistent with Dickerson, we have no reason to believe that its analysis is not appropriate under our State Constitution. Furthermore, we feel that ignoring Dickerson's existence in a case where the precise issue is whether a police officer properly seized narcotics during a Terry search would indicate that our inquiry in this very important case has been less than thorough, even where the parties have not brought it to our attention.

      . For this reason, I disagree with the dissent. I note only that under the dissent’s analysis it would seem that little could not be inferred from an officer’s testimony. Given the otherwise amorphous nature of such testimony, it would appear that to meet the "immediately apparent” standard, an officer’s testimony would need to be more, not less, specific regarding his or her perception. Moreover, although I agree that the officer’s "beliefs” are not relevant, see Commonwealth v. Tyrone Lee Williams, 390 Pa.Super. 493, 506 n. 6, 568 A.2d 1281, 1287 n. 6 (1990), I am unaware of any authority which would allow us to infer that a mere "bulge” was specific enough or articulated sufficiently to support an objective assessment of probable cause to arrest. Id. It was the Commonwealth’s burden to adduce additional testimony from which we could draw such inferences. The Commonwealth failed to do

      . Absent separate treatment pursuant to Commonwealth v. Edmunds, supra, it would be inappropriate at this time for us to hold that the seizure also violated Article I, Section 8 of the Pennsylvania Constitution.


source: Caselaw Access Project

author: BECK, Judge.

license: Public Domain

text:
    633 A.2d 181
    Lawrence OELSCHLEGEL, Jr., Appellant, v. MUTUAL REAL ESTATE INVESTMENT TRUST.
    Superior Court of Pennsylvania.
    Argued April 4, 1993.
    Filed Nov. 4, 1993.

      Richard S. Watt, Haverford, for appellant.
    Stanton C. Kelton, III, Cornwells Heights, for appellee.
    Before CAVANAUGH, BECK and JOHNSON, JJ.
   BECK, Judge.

In this contract dispute, appellant Lawrence Oelschlegel, Jr., appeals from the verdict and judgment entered in favor of appellee Mutual Real Estate Investment Trust (“MREIT”). We affirm in part and reverse in part.

On November 8, 1984, the parties entered into a written contract for the reconstruction of an apartment building owned by appellee MREIT, which had been damaged by fire. MREIT paid Oelschlegel all but one installment of the total cost of reconstruction, and the parties agreed that the balance remaining on the contract at the time of trial was $46,739.97. According to the contract, MREIT was to pay the final installment upon Oelschlegel’s “satisfactory completion” of the contracted work.

Appellant Oelschlegel claimed to have completed performance on April 1, 1985. However, less than one year after appellant finished, Middletown Township condemned the building because of structural defects and ordered the building vacated. The building remained vacant for three years. MREIT eventually spent over $70,000 to repair and rebuild the building.

Appellant Oelschlegel brought this action to recover the balance left unpaid by MREIT on the 1984 reconstruction contract. MREIT filed a counterclaim for its repair costs and lost profits. After a bench trial, the Honorable Edward G. Biester, Jr. held in favor of MREIT on Oelschlegel’s claim for payment. In addition, Judge Biester awarded MREIT $80,-000 in damages on its counterclaim. Oelschlegel filed a motion for post trial relief, which was denied. This timely appeal followed.

On appeal, appellant Oelschlegel raises the following issues:
1. Whether the Court below erred in allowing the testimony of a defense expert who was not identified as such prior to trial.
2. Whether the Court below failed to take into account the amount remaining due Mr. Oelschlegel under the contract in rendering its verdict in favor of MREIT.
3. Whether the Court below erred in considering defense testimony concerning alleged rental income loss which was based on industry operating expense averages.
4. Whether the verdict of the Court below was against the weight of the evidence.
5. Whether the verdict of the Court below in favor of Defendant below was excessive.

We find that the trial court’s disposition of issues 1, 3, 4 and 5 was correct. However, we must remand for recalculation of damages in light of the amount remaining unpaid by MREIT.

Appellant first argues that the trial court should have barred defense expert Joseph C. Harkins from testifying because he was identified only two weeks prior to trial, and was not specifically listed as an “opinion witness.” MREIT’s description of Harkins on a witness list stated: “See report. He will testify as to the negligence of Mr. Oelschlegel and also as to the cost and necessity of repairing damages.” Appellant asserts that this notification was inadequate under the applicable discovery rules, and that Harkins’s expert testimony should have been precluded. See Pa.R.Civ.P. 4003.5 and 4019®.

Even if this notice were technically deficient, as appellant argues, we may overlook procedural errors where there was no bad faith, where there was substantial compliance with the rule’s requirements, and where there was no prejudice or surprise. See Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270, 1272 (1986); Curran v. Stradley, Ronon, Stevens & Young, 361 Pa.Super. 17, 521 A.2d 451 (1987). The trial judge here concluded that MREIT had not acted in bad faith, and that no prejudice had resulted. MREIT did notify Oelschlegel that Harkins would testify as to Oelschlegel’s “negligence,” and this indicates that Harkins would express an “opinion.” In addition, the trial court afforded appellant an opportunity to cure any prejudice which might have resulted from the alleged late disclosure by allowing appellant to interview Harkins prior to his testimony regarding his qualifications and any reports he had prepared. Appellee apparently found this opportunity adequate as he did not request a continuance, and since he did not object at trial to the court’s receiving Harkins as an expert witness. We find no error in the trial court’s ruling.

Appellant next contends that the trial court erred in allowing Ted W. Smith to testify as to appellee’s rental income loss through the use of an industry accepted operating expense factor. The trial court properly refused to entertain this claim of error as appellant never objected at trial to Smith’s testimony. Appellant obviously is precluded from raising this issue on appeal.

Appellant next argues that the trial court’s verdict in favor of MREIT was against the weight of the evidence. This argument is meritless. Oelschlegel testified that he completed the reconstruction of the building on or about April 1, 1985. However, on March 13, 1986, less than one year later, the building was condemned due to structural defects, and MREIT was ordered to vacate the building until corrective measures could be undertaken. The building required extensive reconstruction before it could again be deemed habitable. MREIT’s expert testified to the following repairs which were required and performed: removal and replacement of all plywood and gypcrete, apartment doors, kitchen cabinets on walls, carpeting, toilets, appliances, heaters, duct work, and plumbing. There also was evidence that appellant disregarded instructions and building specifications. The trial judge thoroughly discussed in his opinion the evidence he relied upon in rendering his verdict, and we find no error or abuse in his factual determinations.

Appellant next argues that the trial court’s verdict was excessive. This argument also must fail. A new trial will be granted on the basis that a verdict is excessive “only when the verdict is so contrary to the weight of the evidence that it shocks one’s sense of justice and makes a new trial imperative ...” Douglass v. Licciardi Construction Co., 386 Pa.Super. 292, 562 A.2d 913, 916 (1989). Our review of the record indicates that MREIT’s award included the cost of repair and lost rental profits, the amounts of which were amply supported by the evidence at trial. We therefore find no error in the trial court’s conclusion that the verdict was not excessive.

However, we hold that the trial court erred in failing to consider the amount remaining unpaid under the contract in calculating damages. The trial court considered only the cost of completing the work by another contractor, plus lost rental profits. We hold that the better measure of damages in this case is the cost of completing the contract minus the unpaid part of the contract (plus any lost profits). By failing to use this more precise method of calculation, the trial court created a windfall of approximately $46,000 for the non-breaching party.

The central principle of the law regarding contractual damages is that the non-breaching party should be placed in the position he or she would have been in absent breach. The lower court calculated the damages for the appellant’s incomplete performance by measuring the cost of completion by another contractor who was called in to finish the job. Although this mode of measurement may be valid where the original, breaching contractor substantially has finished the work, or where the owner has completed payment to the breaching contractor, this case calls for a different method of calculation. We hold that the correct measure of damages in the case sub judice is as follows:

[T]he measure of an owner’s damages for a construction contractor’s breach is the cost of completing the contract or correcting the defective work, minus the unpaid part of the contract price.

Annotation, Modern Status of Rule as to Whether Cost of Correction or Difference in Value of Structures is Right Measure of Damages for a Construction Contract, 41 A.L.R.4th 131 § 15 (1985). See Brourman v. Bova, 198 Pa.Super. 279, 182 A.2d 245 (1962).

The Restatement (Second) of Contracts § 348 provides a useful illustration of the application of this method of calculation: Restatement (Second) of Contracts § 348, illus. 3. Of course, the non-breaching party is entitled to lost profits that are caused by the breach.

A contracts to build a house for B for $100,000 but repudiates the contract after doing part of the work and having been paid $40,000. Other builders will charge B $80,000 to finish the house. B’s damages include the $80,-000 cost to complete the house less the $60,000 cost avoided or $20,000, together with damages for any loss caused by the delay.

Our objection to the trial court’s method of calculation is that it ignores the cost avoided — the amount that the non-breaching party would have had to pay for the breaching party to finish the contract. In this case, Oelsehlegel contracted to do repairs on MREIT’s building, and when Oelschlegel breached the contract there was $46,739.92 remaining unpaid. This sum is MREIT’s cost avoided. This figure should be subtracted from the $71,548.00 MREIT was charged by another contractor to finish the job. Otherwise, instead of placing the non-breaching party in the position it would be in absent breach, the contract breach actually would benefit MREIT by $46,739.92. Therefore we reverse this portion of the trial court’s order and remand for a recalculation of damages to account for MREIT’s cost avoided.

Affirmed in part and reversed in part, and remanded for a recalculation of damages consistent with the foregoing principles. Jurisdiction relinquished.

      . This amount was increased on MREIT’s post trial motion to $90,-388.88 to reflect the correct amount of rental income loss.

      . Admittedly, our cases seem to declare that the proper method of calculating damages for incomplete or defective performance is to use the cost of completing work or correcting defects by another contractor. Douglass v. Licciardi Construction Co., 386 Pa.Super. 292, 297, 562 A.2d 913, 916 (1989); Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 134, 519 A.2d 1021, 1029 (1987). However, in neither of these cases is there an indication that an amount remained unpaid on the construction contract at issue, as there is here. In Brourman v. Bova, supra, which did involve an unpaid balance on the breached contract, this court recognized that the unpaid amount must be subtracted from the cost of completion in order to award damages to the non-breaching parly.


author: POPOVICH, Judge:

text:
    633 A.2d 185
    COMMONWEALTH of Pennsylvania, Appellee, v. Ernest JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 23, 1993.
    Filed Oct. 27, 1993.

      Spero T. Lappas, Harrisburg, for appellant.
    Richard E. Guida, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before OLSZEWSKI, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This case concerns an appeal from the order of the Court of Common Pleas of Dauphin County granting the Commonwealth’s petition to re-assign another district justice to hear charges to be re-filed against the defendant/appellant, Ernest Jones. We affirm.

The facts are not in dispute and reveal that on April 19, 1992, the defendant was charged with driving under the influence of alcohol. A preliminary hearing was held before District Justice Magaro, the result of which was a dismissal of the charge for the prosecution’s failure to prove that the hospital performing the testing on the defendant’s blood was listed as having a laboratory approved by the Pennsylvania Department of Health in the Pennsylvania Bulletin. Also, the district justice indicated that he would not entertain a refiling of the charge. Rather, he advised that any re-filing be conducted before another issuing authority.

Pursuant thereto, the Commonwealth filed a “Petition For Assignment Of An Alternate Issuing Authority” and alleged therein that the law permits a re-arrest of the defendant, after charges have been dismissed at a preliminary hearing, by presenting the same or additional evidence before another district justice. Paragraphs 8 & 10. This course of action was being pursued in accordance with Pa.R.Crim.P. 23(b), which reads:

(b) The president judge may assign temporarily the issuing authority of any magisterial district to serve another magisterial district whenever such assignment is needed to satisfy the requirements of paragraph (a), to insure fair and impartial proceedings, or otherwise for the efficient administration of justice____

Further, the initial district justice’s refusal to hear a re-filed complaint necessitated the appointment of a temporary issuing authority “to insure that a magistrate be available and to insure a fair and impartial proceeding.” Paragraphs 11 & 12.

A hearing was held on November 23, 1992, wherein it was stipulated that District Justice Magaro’s dismissal of the charge against the defendant was for the Commonwealth’s failure to present evidence of the hospital’s certification of a laboratory to perform the testing on the defendant’s blood showing over 0.10% blood alcohol level. This, stated the Commonwealth, would be remedied at the second hearing.

Under the Commonwealth’s view of the law, a failure to establish a prima facie case at a preliminary hearing did not preclude the re-filing of charges regardless of whether it had new evidence to present. The trial court denied the Commonwealth’s request for the assignment of an alternate district justice on the basis that “[t]here [wa]s no averment or evidence that the requested assignment [wa]s needed to ensure fair and impartial proceedings or otherwise for the efficient administration of justice as required by Pa.R.Crim.P. 23 and ... Commonwealth v. Kline, 521 Pa. 281, 555 A.2d 892 (1989)....”

Upon a motion for reconsideration, the Commonwealth argued that: (1) the law permitted the reinstatement of the charges dismissed at a preliminary hearing before a different magistrate to explore the challenge of the prior dismissal as improper; and (2) District Justice Magaro erred in failing to take judicial notice of the hospital’s certification to perform blood-testing in the Pennsylvania Bulletin. Paragraph 11. In a Memorandum Opinion that followed, the trial court reversed its earlier order and permitted the Commonwealth to re-file the dismissed charge and re-assigned the case to a different district justice. Thereafter, the defendant filed an appeal questioning the propriety of the order and its entry without prior notice of its issuance ex parte.

We begin with the acknowledgement that our Rules of Criminal Procedure do not address re-arrest procedures. See Commonwealth ex rel. Fitzpatrick v. Mirarchi, 481 Pa. 385, 392 A.2d 1346, 1350 (1978). Nonetheless, case law in this jurisdiction is settled that a defendant may be re-arrested after the charges against him have been dismissed at a preliminary hearing so long as the period prescribed by the statute of limitations has not expired. Commonwealth v. Chermansky, 381 Pa.Super. 129, 552 A.2d 1128, 1129-30 (1989); Commonwealth v. Tait, 369 Pa.Super. 315, 535 A.2d 176, 177 (1987). There is a caveat that re-instatement of charges to be heard by an alternate justice cannot be requested where the intent is to harass the defendant. Commonwealth v. Shoop, 420 Pa.Super. 606, 617 A.2d 351, 353 n. 3 (1992).

At bar, the Commonwealth asserts that its failure to produce evidence of the hospital’s certification to perform blood-work would be rectified at the re-hearing, and its failure to do so at the initial preliminary hearing was an oversight on its part in that it believed it had the necessary documents in its file when, in truth, they were excluded inadvertently.

In response, the defendant asserts that the law permits the re-filing of dismissed charges “where the dismissal of those charges by the first district justice was improper. When the dismissal was not improper, and where the Commonwealth does not even allege improper dismissal of its Petition for the Assignment of an alternate issuing authority, then such a change of venue and reassignment are not proper.” Appellant’s Brief at 10. Such is the claim here, so argues the appellant. We disagree.

Our Supreme Court made some remarks in Liciaga v. Court of Common Pleas, 523 Pa. 258, 566 A.2d 246 (1989), which we find germane to the case instantly; to-wit:

The public interest in the safety of our citizens requires that a good faith, albeit premature response to criminal conduct, permits the state to call to task those who would violate our laws and threaten the security of our citizens and their possessions. Therefore, if the Commonwealth is unsuccessful in its first attempt to establish a prima facie case, it is not precluded from gathering more evidence to demonstrate that a crime has been committed and that the defendant has probably participated in that conduct. Commonwealth v. Genovese, supra.
% % % ifc # sfc
From the foregoing, it is apparent that a determination that the Commonwealth has failed to establish a prima facie case does not preclude a reassessment of that judgment before another district justice either by presenting the same evidence or by presenting a case with additional evidence.
^ sfc
“A finding by a committing magistrate that the Commonwealth failed to establish a puima facie case is not a final determination, such as an acquittal, and only entitles the accused to his liberty for the present, leaving him subject to rearrest.” Commonwealth v. Genovese, supra 493 Pa. [65] at 69 n. 7, 425 A.2d [367] at 369 n. 7, [(1981)] citing Commonwealth v. Hetherington, [460 Pa. 17, 331 A.2d 205 (1975)] supra. * * * [T]he Commonwealth was free to present the matter before another tribunal if it was satisfied that its evidence was sufficient to establish a prima facie case, just as it would have been free to conduct further investigation and to bring additional evidence implicating the defendant in order to satisfy the magistrate. Since our law does not provide an additional avenue to explore the challenge of an alleged improper dismissal of a defendant at the preliminary hearing stage, if the Commonwealth seeks to reinstitute charges, it must refile the same charges before a different magistrate. Riggins Case, 435 Pa. 321, 254 A.2d 616 (1969).

523 Pa. at 264-68, 566 A.2d at 249-50.

Consistent with the precepts stated in Liciaga, supra, the Commonwealth may seek to reinstate a charge dismissed by a magistrate by re-filing the same charge before a different magistrate. Prior to doing so, however, the Commonwealth must either believe that its evidence was sufficient to establish a prima facie case or it intends to produce additional evidence at the new preliminary hearing. Id. Also, we would note that with the institution or reinstitution of any criminal charge, the state must act in “good faith” in doing so and not with any intent to harass. Id.; Shoop, supra.

Accordingly, with the preceding in mind, we equate the presentment of the hospital’s certification as additional evidence not otherwise available to the Commonwealth at the first preliminary hearing. Further, there is no evidence of “bad faith” on the part of the Commonwealth in not producing the hospital’s certification at the initial hearing, nor has the appellant established that the Commonwealth’s reason for seeking re-assignment is tantamount to harassment. Shoop, supra; Chermansky, supra; Tait, supra.

Lastly, we hold that the defendant has not been prejudiced by the trial court’s entry of its order ex parte, especially given the fact that he offers to produce no evidence different than that heard by the court at the November 28, 1992, hearing. The Commonwealth states as much in its brief at 8:

Appellant argues that President Judge Morgan’s Order should be vacated and the case remanded to Judge Morgan.
Such an action is unnecessary because Appellant has failed to allege that he suffered any prejudice. There is no prejudice because Appellant’s position was fully heard and considered by the President Judge [at the November 23, 1992, hearing]. At the hearing, Appellant stated that his position is that the Commonwealth is not entitled to a reassessment unless it alleges an improper dismissal. This is identical to Appellant’s argument before this Honorable Court. Therefore, Judge Morgan was aware of Appellant’s position. [Citations omitted].

We agree. Therefore, finding the commission of no error on the part of the court, we affirm.

Order affirmed.

      . Although this appeal is interlocutory, the order is nonetheless appeal-able. See Commonwealth v. Shoop, 420 Pa.Super. 606, 617 A.2d 351, 352 n. 1 (1992); Pa.R.App.P. 311(a)(3).

      . As an aside, we would point out that the district justice acted properly in refusing to take judicial notice of the hospital’s certification in the Pennsylvania Bulletin. Commonwealth v. Culp, 378 Pa.Super. 213, 548 A.2d 578 (1988).


author: OLSZEWSKI, Judge.

text:
    633 A.2d 188
    COMMONWEALTH of Pennsylvania v. George D. BROCKWAY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 23, 1993.
    Filed Oct. 29, 1993.

      Robert B. McGuinness, Towanda, for appellant.
    Robert Fleury, Asst. Dist. Atty., Towanda, for Com., appellee.
    Before OLSZEWSKI, POPOVICH and HESTER, JJ.
   OLSZEWSKI, Judge.

This is an appeal from the judgment of sentence entered against appellant, George Brockway. He was convicted of simple assault after a struggle with local police resulted in injury to an officer. Honorable Jeffrey Smith sentenced Brockway, after a 32-month delay, to no less than four nor more than twelve months incarceration plus fines and restitution. The delay was caused, in large part, by Brockway’s incarceration in New York for parole violations and a pending drunk driving prosecution. Brockway contends that his sentence is illegal because it was deferred for a period of time in excess of the maximum penalty for the crime he committed, in this case two years. He also contends that his right to a speedy trial was violated by the excessive delay. We disagree.

I.

It is undisputed that on July 19, 1989, Brockway pled guilty to a second-degree misdemeanor, which carries a maximum penalty of two years incarceration. 18 Pa.C.SA § 1104. It is also undisputed that he was not sentenced until March 16, 1992, a date well in excess of two years from the date of the plea. Thus, Brockway claims that the sentence is illegal, relying on this Court’s holding in Commonwealth v. Giovengo, 188 Pa.Super. 220, 227, 146 A.2d 629, 632 (1958): “We conclude that in Pennsylvania a sentence may be suspended or deferred for a period of time equal to the maximum term for which the defendant might have been sentenced, provided proper reasons are present to justify the delay.” (internal footnote omitted). As the trial court in this case aptly pointed out, however, the Giovengo rule was a product of our Supreme Court’s interpretation of a sentencing statute which preceded the current sentencing code. See Commonwealth ex rel. Wilhelm v. Morgan, 278 Pa. 395, 123 A. 337 (1924). Thus, it would appear at first glance that Giovengo is inapposite here.

In Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), however, a case decided under the current sentencing code, the defendant was convicted of first-degree murder and sentencing was delayed for nearly two years. Our Supreme Court held that “[t]his period of delay did not extend beyond the collective maximum term of imprisonment for the offenses of which Pounds was convicted, and, thus, did not render sentencing, prima facie, invalid.” Id. at 628, 417 A.2d at 600. This Court recognized later that the Pounds Court applied the Giovengo rule to a case decided under the current sentencing procedure. We stated in Commonwealth v. Button, 332 Pa.Super. 239, 481 A.2d 342 (1984):

Although admittedly [Giovengo] conforms to a statutory procedure no longer in force, our Supreme Court has applied the same rationale in Commonwealth v. Pounds [supra], holding that the constitutionality or otherwise of intervals between conviction and sentencing depends upon circumstance.

Id. at 250, 481 A.2d at 348. This passage arguably suggests that the Giovengo rule survived the promulgation of the current sentencing procedure. We are thus left with the question of whether under current procedure, a sentencing judge is limited, as a matter of law, to defer imposition of sentence for a period not to be exceeded by the maximum penalty which a defendant faces.

We feel that such a holding would strain logic and defy the current sentencing procedure. First, there is nothing in the current sentencing code or our rules of criminal procedure which contains a rigid time limitation. In fact, time’s only mention occurs in a comment to Pennsylvania Rule of Criminal Procedure 1405, 42 Pa.C.S.A., which provides: “The sentencing proceeding should not take place until all post verdict motions have been disposed of, and until all pre-sentence, psychiatric and diagnostic reports have been submitted to the court and counsel have had an opportunity to inspect and prepare comment thereon.” (citation omitted). This comment, of course, does not answer the present inquiry because it only provides a time before which sentencing may not occur. Therefore, implying -within the sentencing code and procedural rules a rigid time restriction would require this Court to engage in interstitial law-making of the purest sort, a process in which we are loath to engage.

Second, there is nothing in Giovengo which would suggest that a trial court’s failure to sentence within the statutory sentencing range amounts to illegality of sentence per se. Indeed, inherent in Giovengo’s rationale is an understanding that a sentencing judge should be accorded flexibility to determine whether a prior term of incarceration will suffice to rehabilitate a defendant:

The prisoner himself might very well be the beneficiary of a system which defers sentencing until the completion of the term of a prior imprisonment. It should be remembered that one of the main purposes sought to be accomplished by imprisonment is to improve the habits of the prisoner and not merely punish him for his offenses. If a prior period of imprisonment accomplished proper results, it would not be necessary to impose a further imprisonment. On the other hand, if the prior imprisonment had not accomplished the desired results, further imprisonment might be deemed necessary. Such a system not only helps the prisoner, but works a great benefit to society as a whole.

Giovengo, at 226-27, 146 A.2d at 632. Thus, a trial judge should be entitled to await the results of a prior incarceration, such as in this case, to determine whether further imprisonment is necessary to protect society’s interest in punishing the criminal as well to as assess an individual’s rehabilitative needs.

As the Commonwealth notes, moreover, imposing a time limitation within which the sentencing court must operate may lead to onerous results because a defendant convicted of a less serious crime must be sentenced sooner than one convicted of a serious crime. For example, if a defendant is previously incarcerated awaiting sentencing on a crime with a comparatively short maximum incarceration, the sentencing court is required to assess the rehabilitative outcome of the first incarceration before its completion. If the same judge is faced with penalizing the same defendant for a more serious offense, on the other hand, he would be entitled to evaluate a defendant’s progress at a much later date, when rehabilitation might have taken a more profound effect. The anomaly present in this situation is simply that the defendant is available to serve the second sentence no sooner in either case. Furthermore, since society’s interest in punishing the lesser offense is more easily vindicated, the defendant might be better served by a more flexible sentencing schedule. Therefore, the Supreme Court’s indication in Pounds that a delay in imposition of sentence that exceeds the statutory limit is prima facie invalid, as opposed to per se invalid as Brockway would have it, allows for flexibility because it places the focus of timely sentencing on the reasons for delay and not on a rigid time schedule.

Here, reasons for the delay are nearly all attributable to Brockway, for it was he who chose to violate his parole by operating his vehicle while intoxicated in New York. The sentencing court regularly scheduled sentencing hearings to determine Brockway’s whereabouts and during each hearing Brockway’s counsel did not object to deferral of sentence. Moreover, Brockway testified that he was released from prison on August 14, 1991, yet made no effort to inform the court of his release or to assert his right to be sentenced immediately. The only period not attributable to Brockway himself, a two-month period during which the presiding judge was unavailable, went without objection. We would make a mockery of the sentencing process under these circumstances by applying a bright line test to hold that Brockway’s sentence was per se illegal.

Finally, we are satisfied that the timeliness of sentencing is best guided, in the absence of statute, by customary practice and the federal and state constitutions. We must acknowledge our venerable trial courts’ attention in nearly all cases to expeditious sentencing following the disposition of post-trial motions pursuant to Pa.R.Crim.P. 1405, supra. It is a rare case where a sentencing judge in this Commonwealth hesitates to impose sentence after deciding post-trial motions. More importantly, however, our courts have recognized that a defendant’s constitutional right to a fair and speedy trial encompasses the sentencing process. Pounds, supra; Commonwealth v. Greer, 382 Pa.Super. 127, 554 A.2d 980 (1989). In a constitutional inquiry, the focus does not rest exclusively on the length of the delay, as Brockway’s interpretation of Giovengo would, but rather on a balance of factors including the length of the delay, the reasons for the delay, the defendant’s timely assertion of his right to speedy sentencing, and any resulting prejudice caused by the delay. Greer, supra, at 138, 554 A.2d at 986 (citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)); Commonwealth v. Andrews, 391 Pa.Super. 363, 571 A.2d 410 (1990). We feel that this inquiry, which is entirely independent of any penal statute, is far better suited to determine whether sentence was imposed in a fair manner because it balances society’s interest in punishing the criminal with defendant’s interest in expeditious repose. At the same time, an inherent flexibility enables the trial court to best protect all of the interests involved.

We therefore hold that in this case, the trial court did not impose an illegal sentence merely because it came over two years after Brockway’s guilty plea.

II.

We are still left to determine, however, whether Brock-way’s speedy trial rights were violated by the delayed sentencing. We have recited the appropriate constitutional test and the relevant facts above. Additionally, a defendant’s right to a speedy trial is designed to: (1) prevent oppressive pre-trial incarceration, (2) minimize anxiety and concern of the accused, and (3) limit the possibility that the defense will be impaired. Commonwealth v. Glover, 500 Pa. 524, 458 A.2d 935 (1983).

Here, the three-year delay before imposition of sentence was certainly substantial, but most of that time is accountable to Brockway’s incarceration in New York. He was not, therefore, oppressively incarcerated as he awaited sentencing. Next, Brockway first asserted his right to a speedy sentence in January of 1992 and was sentenced less than two months later, in March. Thus, Brockway’s claim that he will suffer anxiety because he has started a business and new family is without merit in light of the fact that he waited well over two years to initially assert the right. See Greer, supra, at 137, 554 A.2d at 985. Finally, there is no indication that Brockway suffered any prejudice as a result of the delay; he does not claim that his ability to present mitigating circumstances was hampered or that the trial court based its sentence on stale factors. We therefore cannot conclude, in light of the foregoing, that Brockway’s right to a speedy trial was violated.

As Judge Kelly persuasively wrote, concurring in Greer: Appellant has attempted to paint himself as a victim of court delay, racked by the uncertainty arising from the failure of the court to impose sentence until seven and one half years after post-verdict motions were denied. His silence during that delay, however, proves the illusory nature of the tragic image he paints. Appellant had but to assert his speedy trial right and sentence undoubtedly would have been imposed.

382 Pa.Super. at 144, 554 A.2d at 989. Likewise, Brockway, incarcerated in New York for a separate crime, made no effort to inform the court of his desire to be sentenced. As soon as he was available and asserted the right, he was accommodated.

Judgment of sentence affirmed.

      . We note that the court finds it "peculiar” that defense counsel did not inform the court of Brockway’s availability at a hearing approximately a month after Brockway's alleged release. Trial court opinion at 3. Counsel characterizes this as a disparagement of his ethics, which he claims is unfounded. We must emphasize that we do not interpret the trial court's language as charging counsel with any ethical violations nor do we suggest that counsel acted improperly in any way. Rather, the simple point is that the trial court was never made aware of Brockway's alleged availability for sentencing, by either Brockway, counsel, or the New York authorities, and it cannot be held responsible for its lack of notice. The party best able to avoid the problem made no effort to assert his rights, and the trial court cannot be held, therefore, to have violated them.

      . Indeed, a defendant may assert that his speedy trial rights were violated even when the sentence was imposed within the period which represents the maximum possible sentence. For example, a defendant who was convicted of first-degree murder, which carries a mandatory life sentence, would clearly be entitled to assert his rights if sentence was imposed in a dilatory fashion, even though, technically, the Giovengo rule could never be violated. See Pounds, supra, at 627, 417 A.2d at 600 (holding that even though delay of two years did not violate
        Giovengo rule in first-degree murder case, the delay did trigger further inquiry into Pounds’ speedy trial claim).


author: WIEAND, Judge:

text:
    633 A.2d 192
    Darlene K. BRADLEY, Appellant, v. Joseph S. RAGHEB, M.D., Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1993.
    Filed Nov. 3, 1993.

      Darrell L. Kadunce, Butler, for appellant.
    Elaine S. Nace, Pittsburgh, for appellee.

      Before ROWLEY, President Judge, and WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

In this medical malpractice action based upon an alleged failure to make prompt diagnosis of cancer, the trial court entered summary judgment in favor of the defendant physician because the action was barred by the two year statute of limitations set forth at 42 Pa.C.S. § 5524(2). On appeal, the patient contends that the trial court failed to make proper application of the discovery rule. After careful review, we affirm the judgment entered by the trial court.

When Darlene Bradley consulted Dr. Joseph Ragheb in early July, 1988, she informed him that she had a lump in her breast. Bradley made an examination and allegedly advised his patient that it had been caused by drinking too much caffeine. When she next questioned the physician in December, 1988, however, he recommended a biopsy. The biopsy was performed on January 20, 1989, and Bradley was informed that the lump was malignant. A modified radical mastectomy was performed on February 8,1989. Because the cancer had started to spread, several infected lymph nodes were also removed. It is not disputed that Bradley knew of her cancerous condition at this time. In March, 1989, Bradley began chemotherapy treatment under the direction of Dr. Liether, an oncologist, who advised her that the risk of recurrence had been increased significantly because the disease had started to spread before it was diagnosed.

On February 27, 1991, Bradley commenced an action against Ragheb in which she charged him with negligence in failing to make an earlier diagnosis of her breast cancer. Ragheb filed an answer to the complaint in which he alleged, inter alia, that the alleged cause of action was barred by the applicable two year statute of limitations. The trial court, on October 27, 1992, held that Bradley’s cause of action was barred by the statute of limitations and entered summary judgment in favor of the defendant-physician. Bradley appealed.

In A McD. v. Rosen, M.D., 423 Pa.Super. 304, 621 A.2d 128 (1993), the Superior Court said:

Summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In passing upon a motion for summary judgment, a court must examine the record in a light most favorable to the nonmoving party and must resolve all doubt against the moving party. A summary judgment can properly be entered in favor of a defendant where plaintiffs cause of action is barred by the statute of limitations.

Id. at 307, 621 A.2d at 130 (citations omitted). See also: E.J.M. v. Archdiocese of Philadelphia, 424 Pa.Super. 449, 452, 622 A.2d 1388, 1390 (1993).

The statute of limitations applicable to a medical malpractice action is found at 42 Pa.C.S. § 5524(2). Section 5524(2) provides that “[a]n action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another” must be commenced within two (2) years. In general, “a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). The statutory period begins to run “as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do[es] not toll the running of the statute____” Id. See also: A. McD. v. Rosen, supra 423 Pa.Super. at 307, 621 A.2d at 130. In most cases, the statute of limitations begins to run on the date the injury is sustained. Once the prescribed statutory period has expired, a plaintiff is thereafter barred from commencing suit.

The discovery rule, however, is an exception to this rule. “In those circumstances where the plaintiff cannot reasonably be expected to be aware of the injury or of its cause, the discovery rule may apply to toll the running of the [statutory period].” A. McD. v. Rosen, M.D., supra at 308, 621 A.2d at 130. See also: Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992); E.J.M. v. Archdiocese of Philadelphia, supra 424 Pa.Super. at 454, 622 A.2d at 1391. The discovery rule provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed period, the period of limitation does not begin to run until discovery of the injury is reasonably possible. Hayward v. Medical Center of Beaver County, supra 530 Pa. at 325, 608 A.2d at 1043. Under the discovery rule, the limitations period will be tolled until the “plaintiff knows, or in the exercise of reasonable diligence should have known, (1) that he has been injured, and (2) that his injury has been caused by another’s conduct.” MacCain v. Montgomery Hospital, 396 Pa.Super. 415, 419-420, 578 A.2d 970, 972-973 (1990), allocatur denied, 527 Pa. 624, 592 A.2d 45 (1991). When presented with an assertion of applicability of the discovery rule, a court must, before it applies the exception, “address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action.” Pocono International Raceway, Inc. v. Pocono Produce, Inc., supra 503 Pa. at 85, 468 A.2d at 471. The plaintiff’s conduct is to be evaluated in terms of what she should have known at a particular time by following a course of reasonable diligence. “If a party has the means of discovery within his [or her] power but neglects to use them, his [or her] claim will still be barred.” Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 292, 505 A.2d 973, 988 (1985). See also: DeMartino v. Albert Einstein Medical Center, N.D., 313 Pa.Super. 492, 508, 460 A.2d 295, 303 (1983). As this court said in DeMartino, supra:

[0]nce the patient is aware or should reasonably have become aware that medical treatment is causing [her] personal injury the statute begins and the prospective plaintiff is required to begin doing those things for which the statute of limitations specifically provides time: “an opportunity to select and consult with a lawyer, investigation, initiation of suit, discovery, joinder of additional parties, etc.”

Id. at 502, 460 A.2d at 300, quoting Keating v. Zemel, 281 Pa.Super. 129, 134 n. 4, 421 A.2d 1181, 1184 n. 4 (1980).

In MacCain v. Montgomery Hospital, supra, the Superior Court addressed the applicability of the statute of limitations under circumstances similar to those in the case before us. There, Mrs. MacCain had entered the hospital on October 10, 1983, in order to undergo orthopedic surgery on her elbow. During a presurgery exam, a mass was detected in one of her breasts. Dr. Belasco next examined her and although he did not detect a mass, he ordered a mammogram. The radiologist who took the mammogram indicated in his report that the possibility of a malignancy could not be excluded. Dr. Belasco, nevertheless, informed Mrs. MacCain that everything was fine. During the months following her surgery, Mrs. MacCain noticed that the lump was increasing in size. In February, 1984, her gynecologist examined the lump and expressed concern. He advised her to return in six months. Upon her return in September, 1984, the gynecologist ordered another mammogram and, based thereon, recommended a biopsy. Mrs. MacCain sought a second opinion in October, 1984, during which her gynecologist’s recommendation was confirmed. Following a biopsy, Mrs. MacCain underwent a modified radical mastectomy on October 5, 1984. Thereafter, on November 21, 1986, Mrs. MacCain commenced a medical malpractice action against various health care providers. The defendants moved for the entry of summary judgment on grounds that the alleged causes of action were barred by the statute of limitations. The motions were granted, and judgment was entered in favor of the defendants. The Superior Court affirmed. The Court said:

While we sympathize with [Mrs. MacCain’s] situation, we still must find, as a matter of law, that she should have known that she was injured by, at least, October of 1984 when she was told that she had cancer. For months, Mrs.
MacCain was concerned about the lump in her breast. She felt the lump growing larger and was told by her doctor that a problem might exist. In October of 1984, [she obtained a second opinion, and] was told that the second mammogram showed carcinoma. On October 5, 1984, this diagnosis was confirmed by the biopsy. At this point, any suspicion of cancer had been positively confirmed. Mrs. MacCain should have been aware that the earlier mammogram had been misread or that she had been misinformed. There is no issue of material fact for the jury to consider and summary judgment was appropriate.

Id. 396 Pa.Super. at 423, 578 A.2d at 974.

Here, as in MacCain, supra, appellant was concerned about a suspicious lump which she had found in her breast. She sought medical advice regarding the lump in July, 1988, and Dr. Ragheb advised her it was not a serious matter but the result of “drinking too much caffeine.” Six months later, in December, 1988, appellant again questioned the doctor about the lump. Although he still expressed the opinion that it was not of concern, he ordered a biopsy. When appellant was informed at the end of January, 1989, that the lump was malignant, Bradley was aware that Dr. Ragheb had failed to correctly diagnose the lump in July, 1988. At that point in time, appellant possessed the requisite knowledge to commence the running of the statutory period; she knew or reasonably should have known that Dr. Ragheb had failed previously to diagnose her cancer when she first brought the lump to his attention.

Appellant contends, however, that the statute of limitations should be tolled until she actually learned that Dr. Ragheb’s delay in diagnosis had increased the risk of a recurrence. She would have us hold that the statutory period did not begin to run until approximately March 20, 1989, when Dr. Licther specifically informed her that the delay in diagnosis had put her at greater risk of suffering a recurrence of cancer.

The polestar of the Pennsylvania discovery rule is not a plaintiffs actual acquisition of knowledge but whether the information, through the exercise of due diligence, was knowable to the plaintiff. Owens v. Lac D’Andante Du Quebec, Ltee., 656 F.Supp. 981, 983 (E.D.Pa.1987), aff'd, 833 F.2d 306 (3d Cir.1987). Failure to make inquiry when information is available is failure to exercise reasonable diligence as a matter of law. Id. See also: Bickford v. Joson, M.D., 368 Pa.Super. 211, 533 A.2d 1029, allocatur denied, 518 Pa. 647, 544 A.2d 959 (1988). Here, the necessary information was ascertainable to appellant in the exercise of due diligence. Appellant merely had to inquire as to the consequences of the delay in the diagnosis or seek that advice, whether medical or legal, or both, which would have provided her with the information necessary to understand the consequences of Dr. Ragheb’s delay. “The two year period given by the statute is the time in which a plaintiff is expected to exercise due diligence in seeking the medical and legal advice necessary to ascertain if an action should be brought and, if so, what legal form it will take.” Levenson v. Souser, 384 Pa.Super. 132, 149, 557 A.2d 1081, 1089, allocatur denied, 524 Pa. 621, 571 A.2d 383 (1989). A plaintiff need not know the precise extent of her injuries before the statutory period begins to run. Id. 384 Pa.Super. at 150, 557 A.2d at 1090. See also: Stephenson v. Greenberg, M.D., 421 Pa.Super. 1, 617 A.2d 364 (1992); Shadle v. Pearce, 287 Pa.Super. 436, 430 A.2d 683 (1981). Thus, the fact that appellant was unaware of the full consequences of Dr. Ragheb’s failure to diagnose her cancer earlier at the same time when she learned the lump to be malignant does not serve to toll the statutory period.

The order entering summary judgment is affirmed.

      . There has been no recurrence of the disease as of September 2, 1993.