author: BROSKY, Judge. OLSZEWSKI, Judge,

text:
    668 A.2d 1176
    In the Interest of J.J. Appeal of J. J.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1993.
    Filed Dec. 5, 1995.

      John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, TAMILIA and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the dispositional order of the juvenile court which adjudicated appellant delinquent and committed him to a juvenile detention facility.

Appellant presents the following issues for our review: (1) whether this court should exercise its discretion to review the merits of his claims despite the fact that he escaped from custody and was a fugitive for a brief period during the pendency of this appeal; (2) whether the juvenile court erred in refusing to suppress the evidence seized from appellant’s person following his arrest and; (3) whether the juvenile court erred in refusing to suppress cocaine which appellant had abandoned in the doorway of a residence. For the reasons set forth below, we affirm.

Before addressing appellant’s claims, it is necessary to recount the pertinent facts giving rise to this appeal. On the morning of January 3, 1992, Officer John Gorman was dispatched to the intersection of Hollywood and Jefferson streets to investigate a report of a young black male selling narcotics. When he arrived, the officer saw appellant, J.J., standing on the northeast corner. Officer Gorman, who was in a marked police vehicle, did not activate his lights or direct any other action towards appellant. Upon seeing the officer, appellant quickly walked up the steps of a nearby residence, opened the storm door and dropped a clear plastic bag inside. Believing that the bag contained narcotics, Officer Gorman exited his vehicle, detained appellant and retrieved the bag. Examination of the bag revealed that it contained forty-nine capped vials inside of which was a white chunky substance. As a result of his discovery, Officer Gorman placed appellant under arrest and searched his person. During the body search, Officer Gorman found appellant to be in possession of $83.00 in currency. Appellant, who was a juvenile at the time, was thereafter charged with various offenses arising out of this incident.

Appellant filed a motion to suppress the cocaine and money seized by the police. This motion was denied. Following a hearing on March 13, 1992, appellant was adjudicated delinquent based on his possession and possession with the intent to deliver a schedule II controlled substance, i.e., cocaine. The juvenile court thereafter entered a dispositional order committing appellant to St. Gabriel’s Hall. Appellant filed a timely appeal therefrom.

On July 19, 1992, appellant escaped from St. Gabriel’s Hall and a bench warrant was issued for his arrest. Approximately one month later, appellant was apprehended while driving a stolen car. As a result of the charges arising from this latter incident, appellant was adjudicated delinquent and committed to the Glen Mills School.

In September of 1992, the Commonwealth filed a motion to quash the appeal due to appellant’s former fugitive status. This court granted the motion by per curiam order entered on January 20, 1993. Appellant filed a petition for allowance of appeal with our Supreme Court, which granted allocatur. The Court subsequently vacated our order and remanded this matter so that we may determine whether in the exercise of our inherent discretion the appeal should be quashed because of appellant’s previous escape. In the Interest of J.J., 540 Pa. 274, 289-291, 656 A.2d 1855, 1363 (1995).

The Supreme Court has not elaborated on the manner in which this discretionary authority is to be exercised. However, we are not wholly bereft of instruction, as a few guiding principles may be gleaned from the Supreme Court’s discussions on this subject. In applying the discretionary rule, the Court has repeatedly emphasized that the courts of inferior jurisdiction have the inherent discretion to determine whether any sanction should be imposed in view of the particular circumstances and the effect of the flight on the court’s ability to dispose of the case. See, e.g., Commonwealth v. Huff, 540 Pa. 535, 536-539, 658 A.2d 1340, 1341-1342 (1995) (it is not proper for an appellate court to dismiss an appeal where the trial court chooses to ignore disrespect manifested by the defendant’s flight and disposes of the issues on their merits; because flight prior to sentencing had no significant effect on the appellate process, the Superior Court erred by holding that the defendant waived his appellate rights, including the right to seek collateral relief); In the Interest of J.J., 540 Pa. at 287-291, 656 A.2d at 1362-1363 (appellate court can exercise the same discretion as a trial court in deciding what will be the appropriate response to a defendant’s fugitive status occurring during ari appeal pending before its own court; the appellate courts thus have the right to fashion an appropriate response, including the dismissal of the matters which the defendant seeks to have reviewed); Commonwealth v. Rhodes, 538 Pa. 78, 74, 645 A.2d 1294, 1294 (1994) (trial court was in a position to assess what penalty, if any, should be imposed where the defendant was a fugitive during post-trial proceedings; since the trial court chose to overlook the defendant’s contemptuous flight and disposed of his post-trial motions, the defendant was entitled to proceed with his appeal in the Superior Court). Review of the exercise of this discretion is limited, as the appellate courts will only examine: (1) the connection between the defendant’s flight and the court’s ability to dispose of the defendant’s case; and (2) whether the sanction imposed in response to the flight is reasonable under the circumstances. In the Interest of J.J., 540 Pa. at 287-291, 656 A.2d at 1362-1363; Commonwealth v. Kindler, 536 Pa. 228, 233, 639 A.2d 1, 3 (opinion announcing the judgment of the court, by Papadakos, J.), cert. denied, — U.S.-, 115 S.Ct. 327, 130 L.Ed.2d 287 (1994).

Examination of the above authorities persuades us that the Supreme Court did not advocate the adoption of a per se rule mandating forfeiture where a defendant’s flight disrupts the appellate process. Nor did the Supreme Court limit the scope of the issues to be reviewed in dealing with a fugitive defendant. Instead, the Supreme Court has consistently recognized the inherent power of the courts to decide whether any sanction should be imposed, subject only to the requirements that the defendant’s fugitive status must affect the court’s ability to dispose of the case and that any sanction must constitute a reasonable response to the flight. In the Interest of J.J. and Commonwealth v. Kindler, supra. To exercise discretion in accordance with these directives, the courts must necessarily conduct a case-by-case analysis of the pertinent facts and circumstances. While the factors to be considered have not been specifically articulated, the Supreme Court has indicated that the connection between the flight and the court’s ability to dispose of the case is relevant. In the Interest of J.J., 540 Pa. at 289-291, 656 A.2d at 1363; Com monwealth v. Kindler, 536 Pa. at 233, 639 A.2d at 3. The Court has also provided that the court’s response to the flight must be reasonable. In the Interest of J.J., 540 Pa. at 289-291, 656 A.2d at 1363; Commonwealth v. Kindler, 536 Pa. at 233, 639 A.2d at 3.

Consequently, the matters to be reviewed in determining whether a defendant should be sanctioned for his flight should bear directly on these two primary issues and may include, but are not limited to: (1) the stage of the proceedings when the flight occurred, ie., during the trial, post-trial or on appeal; (2) the manner in which the defendant escaped; (3) whether the defendant has been returned to custody; (4) the circumstances surrounding the defendant’s return to custody, ie., was the return voluntary or was the defendant captured in the course of committing another crime; (5) the length of time that the defendant remained at large; (6) the age/maturity/condition of the defendant, ie., whether he is a juvenile or adult and whether he is capable of fully comprehending the significance of his conduct; (7) the reasons for the defendant’s flight, ie., whether the escape resulted from a mere juvenile whim, homesickness, desire to prove Ms innocence or whether it was a deliberate intent to flout the authority of the court; and (8) the effect which the defendant’s flight had upon the court’s ability to engage in effective and meaningful review of the defendant’s claims. Of course, these factors are intended as an aid to the courts and should not be construed as an attempt to limit the matters for consideration. Any other relevant factors pertaining to the defendant’s flight and the severity of the sanction to be imposed should thus be examined.

Review of the above considerations persuades us that dismissal of the appeal, while arguably justified, should not be imposed in this case. The record indicates that appellant, who has a history of delinquency adjudications, was adjudicated delinquent in the instant case and committed to Saint Gabriel’s Hall. Following entry of the dispositional order, appellant timely appealed to this court. A few months later, appellant absconded and a bench warrant was issued for his arrest. Appellant remained at large for approximately one month at which time he was apprehended while operating a stolen car.

Appellant’s behavior evinces his rejection of the rehabilitative opportunities provided by the juvenile court and desire to continue his life of crime. Appellant’s flight and perpetration of additional offenses further demonstrate his utter contempt for the judicial system and lack of respect for the laws of this Commonwealth. Nevertheless, appellant was returned to custody, albeit fortuitously rather than voluntarily, within a month after his escape. In fact, appellant was back in custody well before the Commonwealth had even filed its motion to quash this appeal. Aside from the Commonwealth’s motion, nothing in the record indicates that appellant’s escape has disrupted the appellate process. Nor has the relatively brief period of flight substantially compromised this court’s ability to engage in effective and meaningful review of the questions presented by appellant. The impact on the appellate process, if any, was therefore minimal. We are also mindful of the fact that despite his criminal conduct, appellant was still a juvenile at the time of his escape. Due to his status as a juvenile, the fact that he has been returned to custody and because the escape had virtually no effect on our ability to address his claims, we will exercise our inherent discretion and decline to quash the appeal.

Having disposed of this threshold question, we will proceed to address the merits of appellant’s remaining claims. Appellant’s second and third issues challenge the lower court’s refusal to suppress the physical evidence seized by the police. In reviewing a suppression court’s ruling:

we must determine whether the record supports that court’s factual findings. In so doing, we consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Hughes, 536 Pa. 355, 366-367, 639 A.2d 763, 769 (1994) (citation omitted). We will evaluate appellant’s arguments and the decision of the lower court in accordance with these principles.

Appellant contends that the cocaine retrieved from the doorway must be suppressed because it was seized without a warrant. Appellant also argues that the currency taken from his person must be suppressed because it was the fruit of an unlawful arrest. We disagree with appellant’s assessment.

The record reveals that Officer Gorman was dispatched to the intersection of Hollywood and Jefferson to investigate a report of a black male who was selling narcotics. Suppression Hearing Transcript (S.H.T.) 3/10/92 at 4-5 and 10. Officer Gorman observed appellant standing on the street corner when he arrived a few minutes later. Id. at 6. Officer Gorman did not activate his lights or otherwise call attention to his presence. Id. at 13-14. Nor did he take any action signifying an interest in appellant. Id. at 6-7 and 13-14. Upon seeing the officer, appellant turned and walked quickly up to the residence located at 1503 Hollywood Street. Id. at 5-6 and 18-19. Appellant then opened the storm door of the house and dropped a clear plastic bag inside the doorway. Id. at 5, 7 and 13. Although he did not observe the contents of the bag, Officer Gorman believed that it contained narcotics based on his experience and participation in prior drug-related arrests in the area. Id. at 5-8. After watching appellant drop the bag, Officer Gorman detained appellant and retrieved the bag from the doorway. Id. at 5, 6-7 and 16. After the cocaine was discovered, appellant was arrested and searched. Id. at 5 and 16. During the search of appellant’s person, Officer Gorman recovered the $83.00 in currency. Id. at 5 and 16.

Even were we to assume, arguendo, that Officer Gorman’s initial detention of appellant was unlawful, suppression of the evidence is not an appropriate remedy. Appellant cannot legitimately contest the seizure of the cocaine recovered from 1503 Hollywood Street because he did not establish either that he owned the premises or that he otherwise held a legitimate and reasonable privacy interest therein. See Commonwealth v. Peterson, 535 Pa. 492, 497-501, 636 A.2d 615, 617-619 (1993) (it is the defendant’s responsibility to establish that his suppression challenge is legitimate by demonstrating that he held a reasonable privacy interest in the premises which is constitutionally justifiable). Moreover, appellant lacks standing to challenge the seizure of the cocaine because he voluntarily abandoned it before Officer Gorman took any action against him. Commonwealth v. Tillman, 423 Pa.Super. 343, 346, 621 A.2d 148, 150 (1993). Since the cocaine was obtained independently of any police misconduct, it need not be suppressed. See id., 423 Pa.Super. at 347-348, 621 A.2d at 150-151 (drugs were obtained independently of any police misconduct where they were abandoned by the defendant before the police initiated any contact with him; suppression of the evidence was not required).

Once Officer Gorman retrieved the abandoned bag and discovered that it contained a controlled substance, he clearly had probable cause to arrest appellant. See Commonwealth v. Burnside, 425 Pa.Super. 425, 430, 625 A.2d 678, 681 (1993) (probable cause exists if the facts and circumstances within the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution in believing the suspect has committed or is committing a crime). After effectuating a lawful arrest, Officer Gorman was then permitted to conduct a search of appellant’s person without a warrant. Commonwealth v. Agnew, 411 Pa.Super. 63, 74, 600 A.2d 1265, 1271 (1991). The currency taken from appellant’s person was therefore admissible since it was obtained during the search incident to a lawful arrest. Finding that the trial judge properly denied appellant’s suppression motion, we affirm.

Order affirmed.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

In this case, the majority concludes that we should exercise our discretion to hear the merits of J.J.’s appeal. In doing so, the majority focuses overwhelmingly on the lack of disruption to the appellate process, and minimizes what the majority concedes was JJ.’s “contemptuous behavior.” Majority opinion at 265-270. Because I disagree with this analysis which essentially ignores J.J.’s “contemptuous behavior,” I must respectfully dissent.

After J.J. was adjudicated delinquent for possessing while intending to deliver a controlled substance, he filed a direct appeal to this Court. While this appeal was pending, J.J. escaped from St. Gabriel’s Hall, the juvenile facility where he had been committed. J.J. remained at large for about a month until police captured him; he was driving a stolen car. After .JJ.’s return to custody, the Commonwealth asked us to quash his appeal. Because the appellate forfeiture rule required it, we quashed the appeal in a per curiam order. See Commonwealth v. Jones, 530 Pa. 536, 540, 610 A.2d 439, 441 (1992) (once post-trial proceedings commence, defendant’s voluntary escape acts as a per se and irrevocable forfeiture of his right to appeal).

Our Supreme Court granted allocatur and overruled the mandatory application of appellate forfeiture as articulated in Jones. It traced the appellate forfeiture rule’s evolution in this Commonwealth, and reconsidered its underlying purposes. When a convicted defendant escapes and remains at large, we may properly refuse to hear his appeal; by escaping, the defendant has placed himself beyond the court’s jurisdiction and control, and may not be responsive to its judgments. In the Interest of J.J., 540 Pa. 274, 276-277, 656 A.2d 1355, 1356 (1995) (citing Commonwealth v. Galloway, 460 Pa. 309, 311-12, 333 A.2d 741, 743 (1975)). This consideration no longer applies when the fugitive has been returned to custody.

Caselaw provides two other reasons for quashing the appeal of a returned fugitive: because the escape disrupts the appellate process, or constitutes an affront to the appellate court’s dignity. Our high court reaffirmed these reasons for the appellate forfeiture rule, but held that forfeiture should be discretionary-, not mandatory:

[A]n appellate court should retain the discretion to consider and to reinstate the appeal of a fugitive upon his return to custody. We trust that the judicious exercise of this authority will insure that the functioning of the appellate process will not be impeded and the dignity of the courts will be guarded. This approach will permit the court to protect the appellate process while considering the interest of a defendant in pursuing his appeal.

Id., 540 Pa. at 288, 656 A.2d at 1362. The Supreme Court remanded to allow us to consider the equities of J.J.’s case, and exercise our discretion as to whether we should entertain his appeal. Id. at 289-291, 656 A.2d at 1363. How to exercise this discretion is a matter of first impression for the Superior Court.

For guidance, our Supreme Court has referred us to its recent analysis in Commonwealth v. Kindler, 536 Pa. 228, 639 A.2d 1, cert. denied, — U.S.-, 115 S.Ct. 327, 130 L.Ed.2d 287 (1994). Kindler noted that federal precedent approves of the principle underlying appellate forfeiture — that “one who invokes the jurisdiction of a tribunal and then flees has voluntarily waived or disentitled himself to call upon the resources of the Court for a determination of his claims.” Id. at 228, 639 A.2d at 3 (citing Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 498-99, 24 L.Ed.2d 586, 587-88 (1970)). The Kindler Court chose to adopt the narrower federal application of this principle, whereby only that court whose dignity is affronted by a defendant’s escape may sanction the defendant for the escape. Id. (citing Oviega-Rodriguez v. United States, 507 U.S. 234, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993)); see also Commonwealth v. Huff, 540 Pa. 535, 658 A.2d 1340 (1995).

The language of Kindler does not specify how a court must respond to an escape. Rather, a court has “every right to fashion an appropriate response,” so long as “the sanction imposed in response to the flight is reasonable under the circumstances.” Kindler, supra. Hence, a defendant who flees during post-trial motions may expect to have the trial court deny those motions; likewise, the customary sanction for an escape during the pendency of an appeal is to quash the appeal. Id. (citing Ortegar-Rodriguez’s description of dismissing the appeal as a “reasonable response”).

I agree with the majority that whether we exercise our discretion to hear or quash a fugitive appeal necessarily depends on a case by case analysis. I also agree that there are a number of relevant factors for a court to consider. I disagree, however, with the majority’s undue reliance on the factor relating to the disruption of the appellate process. As noted in J.J., the exercise of our discretion in these matters is intended to “ensure that the functioning of the appellate process will not be impeded and that the dignity of the courts will be guarded.” 540 Pa. at 287-289, 656 A.2d at 1362. Thus, a disruption, or lack thereof, should not always be dispositive in determining whether we should exercise our discretion to hear a fugitive’s appeal. A court should still consider other factors that relate to safeguarding the dignity of the courts. Two factors that are particularly important are the circumstances relating to a defendant’s escape and return, and the type of claim sought to be raised on appeal. With these standards in mind, I now turn to the specifics of J.J.’s case.

At the outset, I must agree with the majority that J.J.’s escape did nothing to disrupt the appellate process. J.J. had escaped and was returned to custody before the Commonwealth even asked us to quash his appeal. The Commonwealth points out that J.J.’s flight and recapture have injected claims into his appeal other than those he originally raised, and has delayed our disposition to the point where he is almost 18 years old and no longer a juvenile. Commonwealth’s letter brief at 7-8. But it is not J.J.’s fault that our Supreme Court chose his appeal as the vehicle for revising the appellate forfeiture rule, so we cannot hold the resulting delay against him. Hence, I agree that quashal is not justified for this reason.

JJ.’s attitude toward our criminal justice system is a different matter, though. This Commonwealth, like every state in our country, goes to great lengths and expense in order to provide its citizens the best criminal justice system in the world. No other society would afford J.J. the same degree of protection for his rights and liberties. J.J. was caught red-handed with illegal drugs. Our system afforded him counsel, a hearing to argue that Ms arrest and seizure of the drugs violated his constitutional rights, and a full trial where the Commonwealth had to prove every element of the crime charged beyond a reasonable doubt. Then our system afforded him a right to appeal, where he could again challenge the evidence against him and raise his constitutional claims.

Despite these myriad protections, J.J. chose to thumb his nose at the system. Rather than wait for his appeal, where his state-supplied counsel could again try to vindicate his rights, J.J. chose to escape and commit more crimes. He was recaptured one month later, driving a stolen car and possessing stolen property. J.J. has repeatedly shown us what he thinks of the system, and I am hesitant to allow Mm to continue enjoying the benefits and procedural safeguards of an unparalleled criminal justice system just because he was lucky enough to be recaptured. Therefore, the circumstances of J.J.’s escape and recapture militate against allowing this appeal.

This factor, relating to the circumstances of escape and return, will not always be dispositive, however. We must also consider the type of claim that a former fugitive seeks to raise on appeal. If an innocent individual escaped during the pendency of his appeal in order to exonerate himself, it would be mean-spirited indeed to ignore his claims of innocence because we felt our dignity was offended by the escape. The purpose animating any civilized justice system is the accurate determination of guilt; the procedures we employ must always give due consideration to the possibility of a defendant’s innocence. While it is fitting that a fugitive not be permitted to use our criminal justice system’s extensive safeguards to “beat the system” which he has flouted by escaping, we should never tolerate the conviction of an innocent person. Any concern we might have for upholding the court’s dignity pales in comparison to the dignity we lose when the system permits such a miscarriage of justice. Therefore, a claim that implicates the truth-determining process will weigh in favor of overlooking the affront caused by escape.

In the instant case, J.J. concedes that he was caught with drugs; he only challenges the trial court’s decision not to apply the exclusionary rule to suppress the evidence of his crime. As its critics have often noted, the exclusionary rule thwarts the truth-determining process by suppressing relevant evidence. We utilize exclusion because it is the best way to vindicate our citizens’ constitutional rights, see Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) (exclusionary rule’s purpose is to protect the constitutional expectation of privacy, not just to deter police misconduct); but we do not pretend that the exclusion of relevant evidence aids in the search for the truth.

While denying review of a constitutional claim is no small matter, “respect for judicial process is a small price to pay for the civilizing hand of the law, which alone can give meaning to constitutional freedom.” Walker v. Birmingham, 388 U.S. 307, 321, 87 S.Ct. 1824, 1832, 18 L.Ed.2d 1210, 1220 (1967). If J.J. and others like him would enjoy our broad constitutional protections, they should not show contempt for lawful judicial process by escaping from custody during the pendency of their appeals.

As the circumstances of J.J.’s escape and recapture affront the dignity of this Court, and the types of claims raised for review do not implicate the truth-determining process, I would exercise our discretion not to entertain this appeal.

      . The substance was later tested and found to be cocaine. The vials contained a total of 4.9 grams of cocaine.

      . 35P.S. § 780-113(a)(16).

      . 35P.S. § 780-113(a)(30).

      . 35 P.S. § 780-104(2)(i)4 (defining cocaine as a schedule II controlled substance).

      . The offenses relating to appellant's theft and unauthorized use of the automobile are not properly before us for review at this time. Accordingly, this incident will not be further discussed.

      . The record does not contain any information concerning the circumstances surrounding appellant's escape.

      . The Commonwealth urges us to hold appellant accountable for all of the resources expended by the appellate courts in connection with his appeals. We are not persuaded by the Commonwealth’s reasoning. This court initially quashed the appeal based on the authorities which were in effect at the time. Appellant could not have foreseen that the Supreme Court would grant his petition for allowance of appeal and overrule caselaw which was of relatively recent vintage. We accordingly believe that the prior appeals to this court and the Supreme Court should not be weighed against appellant in examining the effect of his escape on the appellate process.

      . The dissent criticizes our decision to permit this appeal and charges that, in doing so, we have overwhelmingly focused on the lack of disruption to the appellate process. Dissenting Opinion, post at 269-270 and 271-272. Contrary to the dissent’s assessment, our decision is based on a review of all of the particular circumstances of this case, including the fact that appellant is a juvenile. We have therefore exercised our discretion to excuse his adolescent and immature behavior notwithstanding the fact that the escape constitutes an affront to the dignity of the court. However, we emphasize that our decision to disregard appellant’s flight should not be interpreted as an expression of approval or condonation of such behavior. Appellant and others who contemplate similar conduct are thus forewarned that this court will not hesitate to impose the ultimate sanction of dismissal in the appropriate case.

      . The dissent would not reach the merits of these issues because they do not implicate the truth-determining process. Dissenting Opinion, post at 273-274. Although not labeled as such, the dissent's "truth-determining” standard appears to be derived from the Post-Conviction Relief Act ("PCRA”), 42 Pa.C.S.A. § 9541-§ 9546. The PCRA was designed to afford collateral relief to those individuals who are convided of a crime. 42 Pa.C.S.A. § 9542. It thus has no application in the context of claims raised on direct appeal. Moreover, application of such a standard would be particularly inappropriate here because post-conviction relief does not extend to juvenile matters. See, e.g., Matter of J.P., 393 Pa.Super. 1, 11, 573 A.2d 1057, 1062 (1990). Regardless of the basis for the dissent’s derivation of the truth-determining standard, appellant's suppression claims do appear to implicate the truth-determining process since the remedy would be to grant him a new adjudication in the event these issues are deemed to be meritorious.

      . I note that J.J.'s escape can scarcely be characterized as the impulsive act of a child, brought on by homesickness. A mere glance at J.J.'s prior juvenile record and capture in the course of further criminal conduct satisfies us that his escape was not a mere childish whim If anything, J.J.'s status as juvenile strongly weighs against our entertaining this appeal. See In the Interest of K.B., 432 Pa.Super. 586, 589-603, 639 A.2d 798, 800-07 (1994), appeal denied, 540 Pa. 613, 656 A.2d 118 (1995).

      . Harrison Ford’s recent film The Fugitive comes to mind.


source: Caselaw Access Project

author: HUDOCK, Judge: JOHNSON, Judge,

license: Public Domain

text:
    669 A.2d 346
    COMMONWEALTH of Pennsylvania, Appellee, v. Joseph H. METTS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1995.
    Filed Dec. 6, 1995.

      Jack W. Connor, Uniontown, for appellant.
    Peter U. Hook, Assistant District Attorney, Uniontown, Robert A. Graci, Deputy Attorney General, Harrisburg, for Commonwealth appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, BECK, TAMILIA, KELLY, JOHNSON, HUDOCK, FORD ELLIOTT and SAYLOR, JJ.
   HUDOCK, Judge:

This is an appeal from the judgments of sentence imposed following a jury trial in which Appellant was convicted of first degree murder, robbery, theft by unlawful taking or disposition, and receiving stolen property. We granted en banc review to determine the applicability of our Supreme Court’s decision in Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994), which found Section 5704(2)(ii) of the Wiretapping and Electronic Surveillance Control Act (Wiretap Act), 18 Pa. C.S.A. sections 5701 et seq, violative of Article I, Section 8 of the Pennsylvania Constitution unless probable cause for the consensual electronic interception inside a suspect’s home was first shown to a judge of this Court. Appellant would have us apply Brion retroactively; the Commonwealth urges prospective application only.

Appellant was charged with the murder of Piper Newland, a correction officer for the Fayette County Prison. In the early morning hours of January 5, 1992 Ms. Newland was found lying face down on North Gallatin Avenue in Uniontown, Pennsylvania. The victim died at 2:42 a.m. from extensive brain hemorrhage caused by two bullets fired at close range.

Appellant’s sister, Wendy Sue Kulenovic, testified that on January 4, 1992, between 6:00 and 8:00 p.m., her husband, Dwayne Kulenovic, and Appellant left her apartment located at 20/é Millview Street in Uniontown, which is located a few blocks from where the victim was found. At approximately 1:50 a.m., Appellant and Dwayne Kulenovic returned to the apartment where they stayed for a few minutes. Appellant returned between 2:15 and 2:30 a.m., awakened Wendy and confessed that he shot the black guard from the jail. Appellant was holding a cosmetic bag in his hand when he made this confession.

Paul Kuba, a friend of Appellant’s, received a tip that Appellant was involved with the murder of Ms. Newland. Kuba voluntarily went to the police and agreed to cooperate with the Fayette County District Attorney. Kuba agreed to wear an electronic transmitter while questioning Appellant about his involvement in Ms. Newland’s murder. On January 27, 1992 and February 6, 1992, Kuba wore the transmitter and entered Appellant’s sister’s apartment. Kuba admitted that he brought beer and whiskey for Appellant on these dates to “break the ice.” In a tape recorded conversation between Kuba, Appellant’s sister, her husband and Appellant, Appellant confessed that he shot the victim for fifty dollars. Kuba relayed the details of this confession to the jury.

The Commonwealth played an excerpt from the tape recorded conversation between Appellant and Kuba wherein Appellant confessed to shooting the victim.

The jury found Appellant guilty of first degree murder, robbery and related theft offenses. The trial court granted Appellant’s demurrer to criminal conspiracy and hindering apprehension or prosecution.

In his first three questions presented, Appellant alleges that the trial court erred when it denied his motion to suppress the tape recorded conversations between himself and Paul Kuba obtained through the use of electronic surveillance.

Our standard of review when reviewing a challenge to the trial court’s denial of a motion to suppress is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Commonwealth v. Morris, 537 Pa. 417, 420-22, 644 A.2d 721, 723 (1994), cert. den., — U.S. -, 115 S.Ct. 610, 130 L.Ed.2d 519 (1995). If the trial court denied the motion to suppress, we must consider only the Commonwealth’s evidence and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Mayhue, 536 Pa. 271, 299-300, 639 A.2d 421, 435 (1994). If the trial court’s factual findings are supported by the record, we may only reverse if the legal conclusions drawn from those factual findings are erroneous. Id.

Appellant does not dispute the trial court’s factual findings. Rather, he argues that this Court must reverse the trial court’s erroneous legal conclusion that the tape recorded conversations obtained via electronic surveillance were properly obtained and thus admissible. Appellant contends that this Court must follow our Supreme Court’s decision in Commonwealth v. Brian, supra, which held that “Article I, [Section] 8 of the Pennsylvania Constitution precludes the police from sending a confidential informer into the home of an individual to electronically record his conversations and transmit them back to the police.” Brion, 652 A.2d at 287. Appellant claims that Bñon and the consolidated case of Commonwealth v. Schaeffer, 539 Pa. 271, 272, 652 A.2d 294 (1994), which were both decided on December 30, 1994, must be applied retroactively to his case.

In Commonwealth v. Brion, supra, our Supreme Court addressed the issue of whether the police may send a confidential informer into an individual’s home to electronically record his conversations and transmit them back to the police without violating Article I, Section 8 of the Pennsylvania Constitution. Brion argued that to do so the police must obtain judicial authorization. The police relied on section 5704(2)(ii) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. sections 5701-5728, which authorizes investigative or law enforcement officers or persons acting at the request of law enforcement personnel to “intercept a wire, electronic or oral communication involving suspected criminal activities” if the officer or person consents to wear a body wire. 18 Pa.C.S.A. § 5704(2)(ii). Brion argued that this procedure violated Article I, Section 8 of the Pennsylvania Constitution which “protects the right of the people to be secure from unreasonable searches and seizures[.]” Commonwealth v. Schaeffer, 370 Pa.Super. 179, 182, 536 A.2d 354, 355 (1987), aff'd., 539 Pa. 272, 652 A.2d 294 (1994). Thus, Brion argued that his incriminating statements were illegally recorded and should be suppressed.

The trial court denied Brion’s motion to suppress and the tape recorded conversation was admitted at trial. Brion was convicted of possession and delivery of marijuana. The trial court reversed its suppression ruling when presented with Brion’s post-verdict motions and granted a new trial based on this Court’s en banc decision in Commonwealth v. Schaeffer, supra.

On appeal, a panel of this Court reversed the trial court and held that the Supreme Court’s decision in Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), aff'd., 494 U.S. 299 (1990), overruled our Court’s en banc decision in Schaeffer sub silentio. Our Supreme Court granted allocatur and reversed our Court’s decision. The Supreme Court distinguished the holding in Blystone on the basis that the police informer in Blystone did not enter the defendant’s home to electronically record his conversations. Justice Zappala, writing for the majority in Brion, noted:

Unlike ... Blystone ..., the instant case involves conversations taking place in the sanctity of one’s home. If nowhere else, an individual must feel secure in his ability to hold a private conversation within the four walls of his home. For the right to privacy to mean anything, it must guarantee privacy to an individual in his own home. As then-Justice Roberts stated in Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978): “Upon closing the door of one’s home to the outside world, a person may legitimately expect the highest degree of privacy known to our society.” (Citations omitted).

Brion, 652 A.2d at 289 (footnote omitted).

Justice Zappala reiterated: “An individual has a constitutionally protected right to be secure in his home.” Id. Based on this well-established principle, the majority concluded:

With respect to oral communications occurring within one’s home, interception pursuant to 18 Pa.C.S. [Section] 5704(2)(ii) can only be deemed constitutional under Article I, Section 8 if there has been a prior determination of probable cause by a neutral, judicial authority. In light of the General Assembly’s preference expressed elsewhere in the Act that probable cause determinations regarding other electronic surveillance be made by a judge of the Superior Court, 18 Pa.C.S. [Sections] 5708-5723, for consistency we believe that such procedures should be applied in fulfilling this probable cause/warrant requirement.

Id. 652 A.2d at 289.

Our Supreme Court did not address whether its decision in Brion should be retroactively applied. Appellant argues that we must apply the new law announced in Brion retroactively to the present appeal.

In the present case, when the trial court ruled on Appellant’s post-verdict motions, the Supreme Court’s decision in Brion had not been decided. The controlling precedent at the time was this Court’s decision in Commonwealth v. Schaeffer, supra. The trial court refused to apply our en banc decision in Schaeffer for three reasons. First, the trial court concluded that Appellant did not raise the issue that the tape recorded conversations were an illegal search and seizure pursuant to the Fourth Amendment of the federal constitution and Article I, Section 8 of the Pennsylvania Constitution either pre-trial or during trial. According to the trial court, Appellant did not raise the illegal search issue until he filed supplemental post-verdict motions. Hence, the trial court ruled that Appellant had not properly preserved this issue.

After carefully reviewing the record, we cannot agree that Appellant did not properly preserve his challenge to the illegality of the electronic surveillance based on the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution. Appellant raised this issue in paragraph 16 of his omnibus pre-trial motion.

Secondly, the trial court found that the present case is not controlled by our decision in Schaeffer (and now Brion) because Appellant was not entitled to the protections of the Fourth Amendment or Article I, Section 8, since he was not in his own home when his conversations were intercepted. The trial court noted that Appellant did not permanently reside in his sister’s apartment but was merely a “transient” occasional overnight guest. Therefore, the trial court reasoned that Appellant had no legitimate expectation of privacy in his sister’s apartment where he “sometimes” spent the night.

Our Supreme Court has recently explained the scope of protection guaranteed by the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution' in Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115 (1993). The Court explained:

The Fourth Amendment protects: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV; Pa. Const, art. 1, § 8. The protection of the Fourth Amendment [and Article I, Section 8 of the Pennsylvania Constitution] does not depend on a property right in the invaded place but does depend on whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.
An expectation of privacy is present when the individual, by his conduct, “exhibits an actual (subjective) expectation of privacy” and that the subjective expectation “is one that society is prepared to recognize as ‘reasonable.’ ” The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on whether the expectation is reasonable in light of all the surrounding circumstances. Additionally, a determination of whether an expectation of privacy is legitimate or reasonable entails a balancing of interests.

Id. 620 A.2d at 1118 (citations omitted).

Applying these principles to the facts of the present case, we must determine whether Appellant had a “legitimate expectation of privacy” in his sister’s apartment and whether that expectation is “one that society is prepared to recognize as ‘reasonable.’ ” Commonwealth v. Oglialoro, 525 Pa. 250, 256, 579 A.2d 1288, 1290-91 (1990) (“The controlling consideration is whether the individual contesting the search and seizure entertains a legitimate expectation of privacy in the premises or area searched.”). To make these determinations we must examine the totality of the circumstances regarding Appellant’s presence in his sister’s apartment. Commonwealth v. Peterson, 408 Pa.Super. 22, 26-27, 596 A.2d 172, 174 (1991), aff'd., 535 Pa. 492, 636 A.2d 615 (1993).

Appellant’s sister, Wendy, testified at trial that Appellant did not permanently reside with her and her husband. Instead, she explained that Appellant and his girlfriend “sometimes” stayed with them. Wendy stated that she asked Appellant to leave her apartment on the day following the murder because she did not want his girlfriend, who had run away from home, to stay with him. Appellant left his sister’s apartment on the day following the murder but he returned and spent the night on several occasions after the murder. Furthermore, Appellant’s girlfriend, Della Robertson, testified that she and Appellant spent the night at the Kulenovics’ apartment for four or five days prior to January 4, 1992.

Despite the sparse evidence regarding Appellant’s living arrangements, we find enough to conclude he had a constitutionally protected expectation of privacy in the premises searched. The trial court correctly found that Appellant did not maintain a permanent residence and was an occasional guest at his sister’s apartment. Appellant apparently travelled between his sister’s and brother’s residences. However, Appellant’s status as a transient overnight guest does not automatically defeat his expectation of privacy. Appellant does not need a possessory interest or permanent residency in the premises searched to maintain a legitimate expectation of privacy. Our Supreme Court has recognized that an overnight guest at a host’s residence may have a legitimate expectation of privacy if the guest is invited to stay at the premises. Commonwealth v. Evans, 488 Pa. 38, 40, 410 A.2d 1213, 1215 (1979) (citing Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (I960)); see also Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (overnight guest can claim a legitimate expectation of privacy in his host’s home); Peterson, 596 A.2d at 176-77.

We find that Appellant was entitled to the constitutional protection against unreasonable searches and seizures while he temporarily resided at his sister’s apartment. Appellant was legitimately at his sister’s apartment when the informer entered wearing a body wire. Wendy did not deny that Appellant had her permission to stay with her and her husband. Even after Wendy learned that Appellant killed Ms. Newland, she permitted him to spend the night at her apartment. Unlike the trial court, we find the facts in Commonwealth v. Ferretti, 395 Pa.Super. 629, 577 A.2d 1375 (1990), alloc. den., 527 Pa. 597, 589 A.2d 688 (1991), distinguishable from the present case. In Ferretti, this Court denied the appellant standing to object to the search of an apartment where the appellant hid after he terrorized and assaulted his ex-girlfriend. Id. 577 A.2d at 1381. The appellant arrived at his friend’s apartment at 5:00 p.m. and stayed there until the police arrived at approximately 11:00 p.m. that same night. After obtaining a search warrant, the police entered the apartment, handcuffed and arrested the appellant and seized a sawed-off shotgun from underneath the couch. The appellant filed a motion to suppress the gun on the grounds that the search warrant was defective. The trial court denied the motion to suppress and the appellant was found guilty of burglary, simple assault and recklessly endangering his ex-girlfriend.

On appeal, this Court affirmed the trial court’s ruling on the grounds that the appellant lacked standing to object to the search and seizure of evidence. The appellant did not live at his friend’s apartment nor was he an occasional overnight guest. The appellant did not have a key to the apartment and did not maintain any of his possessions there. Based on these facts, this Court held that the appellant lacked a reasonable expectation of privacy in the premises searched. Id.

Unlike the appellant in Ferretti, the evidence in the present case clearly shows that Appellant was temporarily residing at his sister’s apartment where his conversations were recorded. Appellant was more than a guest visiting his sister for one evening. He had been staying there for several days in a row prior to the murder and he continued to occasionally spend the night prior to his arrest. Thus, Appellant has standing to assert a Fourth Amendment and Article 1, Section 8 claim.

Based on this conclusion, we find that the trial court erred when it concluded that the facts of Brion and Schaeffer are distinguishable from the instant case. In all three cases, the individual-appellant subject to the electronic monitoring had a legitimate expectation of privacy in the premises where the police sent an informer to intercept an oral communication regarding suspected criminal activity.

Alternatively, the trial court concluded that the law announced in the June 1,1993 order and opinion of our Supreme Court in Schaeffer should not be retroactively applied. The trial court did not have to address the retroactive application of our Supreme Court’s per curiam opinion rendered June 1, 1993 since it had been withdrawn on June 25, 1993. However, while Appellant’s appeal was pending before this Court, our Supreme Court rendered a final decision in Brion and Schaeffer on December 30, 1994. Thus, we are faced with the decision whether the new rule of law announced in Brion and Schaeffer should be retroactively applied. After balancing the various criteria which influence a decision regarding retroactive application of a new rule of law, we find that the relevant factors weigh in favor of prospective application only.

The decision whether to apply a new rule of law retroactively or prospectively is a matter of judicial discretion which must be decided on a case-by-case basis. Blackwell v. Commonwealth, State Ethics Commission, 527 Pa. 172, 182, 589 A.2d 1094, 1099 (1991); August v. Stasak, 492 Pa. 550, 553-55, 424 A.2d 1328, 1330 (1981). Neither the federal or the state constitution require or prohibit the retroactive application of a new rule of law. Blackwell, 589 A.2d at 1098. A court has four options available when deciding whether to apply a new rule of law retroactively. These options include: 1) the new rule of law is applied purely prospectively; 2) the new rule is applied retroactively only to the case in which the new rule is announced; 3) the new rule is applied retroactively to the case in which it is announced and to all cases pending when the decision is announced; and 4) the new rule is given full retroactive effect; that is, all litigants are entitled to the application of the new rule even if their case was final before the new law was announced. Id. 589 A.2d at 1098-99; see also Commonwealth v. Geschwendt, 500 Pa. 120, 125-28, 454 A.2d 991, 994-95 (1982) (plurality opinion).

The common law in Pennsylvania in both the civil and criminal context generally required the court to “apply the law in effect at the time of the appellate decision.” Blackwell, 589 A.2d at 1099; Commonwealth v. Cabeza, 503 Pa. 228, 232-34, 469 A.2d 146, 148 (1983). This principle favoring retroactive application furthers the goal of “evenhanded decision making” by guaranteeing similarly situated individuals on direct appeal the same- rights. Commonwealth v. Brown, 494 Pa. 380, 385-87, 431 A.2d 905, 908 (1981). Accordingly, “a party whose case is pending on direct appeal is entitled to the benefit of changes in law which occur before the judgment becomes final.” Id. 431 A.2d at 906-07. “[U]n-less the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.” Cabeza, 469 A.2d at 148.

Although these precedents generally favored the retroactive . application of a new principle of law, Pennsylvania courts have also followed United States Supreme Court precedent and modified the common law in various cases. For example, courts in this Commonwealth have limited the retroactive application of a new rule of law and applied a “selective retroactivity test” adopted by the United States Supreme Court in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and reaffirmed in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). See Commonwealth v. McFeely, 509 Pa. 394, 399-401, 502 A.2d 167, 170 (1985); Commonwealth v. Parker, 435 Pa.Super. 81, 88-90, 644 A.2d 1245, 1249 (1994), alloc. den., 540 Pa. 630, 658 A.2d 793 (1995). In Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), cert. den., 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981), the Pennsylvania Supreme Court cited the three factor analysis enunciated by the United States Supreme Court in Stovall v. Denno, supra, to determine when a rule of law is to be given retroactive effect. The Pennsylvania Supreme Court explained:

“The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice.” (Footnote omitted).

Miller, 417 A.2d at 136 (citing Stovall v. Denno, 388 U.S. at 297, 87 S.Ct. at 1970). Our Supreme Court continued:

The purpose to be served by the new rule should receive primary consideration. “Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect.” Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971) (plurality opinion). Conversely, the same standard “strongly supports prospectivity for a decision amplifying the evidentiary exclusionary rule,” Desist [v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969) (plurality opinion) ], the primary purpose of which is to deter unlawful police conduct.

Miller, 417 A.2d at 136 (footnote omitted). In other words, “[w]here the purpose of the new standard affects the truth finding function, thereby raising serious questions about the accuracy of prior guilty verdicts, the new rule has been given complete retroactive effect.” Commonwealth v. McCormick, 519 A.2d at 447 (citing Williams v. United States, 401 U.S. at 653, 91 S.Ct. at 1152-53).

In United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), the Supreme Court of the United States announced a modified approach to the common law rule regarding retroactive application of a new rule of law. The Court explained that where a court announces a new rule of criminal procedure which represents “a clear break with the past,” the new rule should be prospectively applied. Id. at 549, 102 S.Ct. at 2587. The Pennsylvania Supreme Court applied the rationale of Johnson in the case of Commonwealth v. Geschwendt, supra. In Geschwendt, the Court applied the decision in Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), regarding the jury instruction in insanity defense cases, prospectively because the new rule was “a clear break with the past.” Geschwendt, 454 A.2d at 997. See also Commonwealth v. Gray, 509 Pa. 476, 486-88, 503 A.2d 921, 927 (1985) (decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which was adopted by the Pennsylvania Supreme Court was retroactively applied because it did not create any new rights in the defendant).

In the most recent case addressing retroactivity of a new rule of criminal law, Commonwealth v. Parker, supra, this Court considered whether our Supreme Court’s decision in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), would be retroactively applied. Lively refined the evidence law regarding the admissibility of prior inconsistent statements. The Court noted the common law principle favoring retroactive application, yet recognized that “a sweeping rule of retroactive application is not justified.” Parker, 644 A.2d at 1249 (citing Blackwell, 589 A.2d at 1099). Therefore, the Court examined whether the decision in Lively represented a clear break with past precedent. The Court also weighed the three factors of the selective retroactive test. Combining the various approaches, the Court stated:

[Prospective application of judicial decisions is warranted only when all of the following conditions are met:
(1) the decision establishes a new principle of law by either overruling dear past precedent or involves an issue of first impression, the resolution of which was not clearly foreshadowed, (2) the merits of purely prospective application of the new decision outweigh the disadvantages, based on the history of the rule in question, its purpose and effect, and whether a retrospective application would retard operation of the new law, and (3) the inequity of a retroactive application of the new rule outweighs the benefit of such an application.
Batoff v. Commonwealth, Bureau of Professional and Occupational Affairs, 158 Pa.Commw. 267, 271, 631 A.2d 781, 783 (1993), citing Chevron Oil Co. v. Huson, [404 U.S. 97, 106-107, 92 S.Ct. 349, 355-356, 30 L.Ed.2d 296 (1971)].

Parker, 644 A.2d at 1250.

Applying these principles to the facts of the present case, we find that a prospective application of Brion is warranted. We arrive at this conclusion after carefully examining and balancing relevant criteria including the purpose of the new rule, the reliance by law enforcement personnel on the prior law, the impact on the administration of justice, and the extent the decision was foreshadowed by prior precedent.

Our Supreme Court’s rulings in Brion and Schaeffer were based on the fundamental principle that individuals are guaranteed by Article I, Section 8 of the Pennsylvania Constitution freedom from “unreasonable” governmental invasions of privacy in their own home. The purpose of requiring a “prior determination of probable cause by a neutral, judicial authority,” before the police may send an informant wearing a body wire into one’s home is to protect the individual’s privacy rights while in the sanctity of his own home. Brion, 652 A.2d at 289. The new rule of law premised on Article 1, Section 8 of the Pennsylvania Constitution, does not cure a defect in the criminal trial which affects or substantially impairs its truth-finding function, Commonwealth v. Harper, 512 Pa. 155, 161-63, 516 A.2d 319, 323 (1986); Williams v. United States, 401 U.S. at 653, 91 S.Ct. at 1152-1153, nor does it correct a “serious flaw in the fact-finding process at trial.” Stovall, 388 U.S. at 298, 87 S.Ct. at 1970. In Brion, our Supreme Court was not concerned that the appellant’s guilty verdict was unreliable because of the police conduct in intercepting the appellant’s oral communication in his home. Appellant was duly convicted when judged by the law as it existed at the time of his trial. See Williams, 401 U.S. at 656, 91 S.Ct. at 1154 (petitioners were duly convicted when judged by the then-existing law; the authorities did not violate their rights before or at trial). The Court was motivated by a different policy consideration — that of protecting the constitutional guarantee enunciated in Article I, Section 8 of the Pennsylvania Constitution.

The result in Brion expanded the scope of the exclusionary rule; it did not enhance or assure the reliability of the appellant’s trial or guilty verdict. The exclusionary rule, which was first applied to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), protects one’s constitutional right against unreasonable searches and seizures by “depriving law enforcement officials of the benefits derived from using unlawfully obtained information.” Commonwealth v. Brown, 470 Pa. 274, 282, 368 A.2d 626, 630 (1976). Applying Brion retroactively to the present case would not further this deterrent purpose since the police conduct, which is now declared to be unconstitutional, was not unconstitutional when it occurred. When the police intercepted Appellant’s incriminating conversation with Paul Kuba, they were not obligated to appear before this Court and present probable cause to use a body wire. The police and investigative officers justifiably relied on the precise language of section 5704(2)(ii) of the Wiretap Act which did not require a judicial determination of probable cause by this Court. The police strictly adhered to the requirements of the Wiretap Act as it was written by our Legislature. Their conduct was not unlawful until declared so by our Supreme Court when it decided Brion on December 30, 1994. Under these circumstances the deterrent purpose of the exclusionary rule would not be furthered by retroactively applying the Brion rule. Furthermore, law enforcement authorities’ reliance and strict adherence to prior law weighs heavily in favor of prospective application.

The third factor in the Stovall test, the administrative burden associated with retroactively applying Brion, also supports our decision to deny Appellant the benefit of the new rule. A retroactive application of Brion would require new trials in all cases where the Commonwealth introduced the defendant’s incriminating statements which were intercepted without a probable cause determination by this Court. We note the administrative hurdles caused by a retroactive application of a rule of criminal procedure:

[Ordering new trials would ... involve[ ] not only expense and effort but the inevitable risk of unavailable witnesses and faulty memories; the authorities might not have had the evidence they once had and might have been foreclosed from obtaining other evidence they might have secured had they known the evidence they were using was constitutionally suspect.

Williams, 401 U.S. at 654, 91 S.Ct. at 1153. These same considerations apply in the instant case and favor a prospective application.

Finally, we recognize that our Supreme Court decided an issue of first impression in Brion and established a “clear break” with established statutory law. Although our Supreme Court did not specifically overrule prior precedent, it did add an additional requirement to section 5704(2)(ii) of the Wiretap Act in order to uphold its constitutionality under our Commonwealth’s Constitution. Rather than striking section 5704(2)(ii) as unconstitutional, our Supreme Court read into the statute the prerequisite that this Court find sufficient probable cause to allow an informant wearing a consensual body wire into an individual’s home for the purpose of intercepting and monitoring his communications.

Moreover, the decision in Brion was not clearly foreshadowed. After this Court’s en bane decision in Schaeffer, our Supreme Court rendered its decision in Blystone. Blystone specifically rejected the appellant’s argument that section 5704(2)(ii) violated Article I, Section 8 of the Pennsylvania Constitution. Blystone, 549 A.2d at 86-87. In cases decided subsequent to Blystone, this Court interpreted Blystone as overruling the en banc decision in Schaeffer. This Court specifically stated in Brion:

While not expressly overruling Schaeffer, the broad-sweeping language of Blystone clearly overrules our prior decision. Our Supreme Court clearly did not except from its holding the factual situation where the warrantless participant monitoring occurred in the defendant’s home. Therefore we must conclude that Blystone overrules our decision in Schaeffer.

Brion, 552 A.2d at 1108.

Our Supreme Court interpreted Blystone in the same manner when it rendered a per curiam order remanding Commonwealth v. Barone, 375 Pa.Super. 613, 541 A.2d 25 (1988), in Commonwealth v. Barone, 520 Pa. 118, 552 A.2d 1048 (1989). The Court specifically stated:

The petition for allowance of appeal is granted, the order of the Superior Court is reversed pursuant to Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), and the case is remanded to Superior Court for further proceedings ____

Barone, 552 A.2d at 1048.

Thus, our Supreme Court’s own interpretation was that Blystone overruled our en banc decision in Schaeffer, thus making it difficult to foreshadow the result reached in Brion.

Applying a modified version of the common law and rejecting a sweeping rule of retroactive application, we conclude that the decision announced in Brion is to be prospectively applied and is not applicable to searches and intercepted conversations which occurred prior to December 30, 1994. Appellant is not entitled to a new trial on the basis of Brion since the tape recorded conversations were intercepted pxior to the applicable date.

Appellant raises an additional argument as to why the tape recorded conversations between him and the informer should have been suppressed by the trial court. He alleges that the Commonwealth did not adhere to the dictates of section 5704(2)(ii) of the Wiretap Act. The relevant section of the Act provides in pertinent part:

It shall not be unlawful under this chapter for:

(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities where:
(ii) one of the parties to the communication has given prior consent to such interception. However, no interception shall be made unless the ... district attorney ... of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception[.]

18 Pa.C.S.A. § 5704(2)(ii).

Appellant claims that the Commonwealth failed to prove that the interception of his conversations was necessary to discover “suspected criminal activities.” Appellant contends that the Commonwealth must suspect current or future criminal activity, not merely past criminal activity before obtaining the district attorney’s authorization of a wiretap.

This Court specifically rejected Appellant’s interpretation of “suspected criminal activities” in Commonwealth v. Taylor, 424 Pa.Super. 181, 622 A.2d 329 (1993). In that case this Court stated, “ ‘suspected criminal activities’ is not restricted to only current and ongoing criminal activities.” Id. 622 A.2d at 332 (emphasis added). The Court explained its rationale as follows:

Temporal restrictions, such as “ongoing,” “current,” and “contemporaneous,” are not suggested in the language of [Section] 5704(2)(ii). We have not adopted this limitation. Instead, we require that the Commonwealth must have “reasonable grounds” for the monitoring.

Id. 622 A.2d at 333. See also Commonwealth v. Phillips, 373 Pa.Super. 193, 200-02, 540 A.2d 933, 937 (1988) (Section 5704(2)(ii) incorporates the reasonable grounds standard); Commonwealth v. Hassine, 340 Pa.Super. 318, 351-53, 490 A.2d 438, 456 (1985) (court rejects the appellant’s narrow interpretation of “suspected criminal activities”).

In the present case the police had “reasonable grounds” to suspect that Appellant committed the murder and was continually trying to conceal such crime. We find no violation of the Wiretap Act by the Commonwealth and accordingly reject Appellant’s claim that the tape recordings should have been suppressed on this ground.

In his third argument challenging the suppression ruling, Appellant claims that his due process rights were violated as a result of the police conduct during the electronic surveillance. Appellant contends that the police directly furnished him, a minor, with alcohol to induce him to make incriminating statements.

Appellant bases his claim on the principle of law that “police involvement in criminal activity can be so outrageous that a prosecution will be barred on due process grounds.” Commonwealth v. Lindenmuth, 381 Pa.Super. 398, 402-04, 554 A.2d 62, 64 (1989), alloc. den., 522 Pa. 624, 564 A.2d 916 (1989) (citing United States v. Twigg, 588 F.2d 373 (3rd Cir.1978) and Commonwealth v. Mathews, 347 Pa.Super. 320, 500 A.2d 853 (1985)). We do not find this principle applicable to the facts of this case. The police did not directly furnish Appellant with alcohol nor did they demand that Kiiba supply alcohol to Appellant to induce him to make an involuntary confession. The police actions were not “outrageous” or unlawful such that Appellant’s due process rights were violated. Compare Commonwealth v. Mathews, supra (law enforcement officers acted outrageously in supplying money, equipment, a residence and expert advice used by appellant to illegally manufacture methamphetamine).

Finally, Appellant raises two issues with regard to the trial court’s evidentiary rulings. First he claims that he should have been permitted to call Robert Phillips to testify in his defense. In his offer of proof Appellant claimed that Phillips would have testified that Dwayne Kulenovie offered to sell him a revolver on January 7, 1992, two days following the murder of Ms. Newland, and that the gun Dwayne offered to sell him was not the same gun as Commonwealth exhibit number 6. Appellant argued that this evidence was relevant to show that Dwayne possessed another gun on the night of the murder. The trial court rejected Appellant’s proffer concluding that the fact that Dwayne might have possessed another gun on the night of the murder was irrelevant.

The trial court has the discretion to determine whether evidence is relevant and properly admitted. Commonwealth v. Owens, 437 Pa.Super. 64, 75-77, 649 A.2d 129, 135 (1994). Absent an abuse of that discretion, this Court will not reverse a trial court’s decision that evidence is not relevant and thus inadmissible. Id.

We agree with the trial court that Phillips’ proffered testimony was irrelevant to Appellant’s defense. We may not consider the additional reasons why Phillips’ testimony was relevant which Appellant included in Ms appellate brief for the first time. “The party specifying the purpose for which the testimony is admissible cannot argue on appeal that the evidence was admissible for a purpose other than that offered at trial.” Commonwealth v. Newman, 382 Pa.Super. 220, 230-32, 555 A.2d 151, 156 (1989), alloc. den., 540 Pa. 580, 655 A.2d 512 (1995). Appellant has waived any grounds, other than those raised at trial, for the admission of Phillips’ testimony. Id.

Appellant also claims that the trial court erred by permitting the Commonwealth witnesses, Earl Mayfield and Judith Sparks, to testify. Appellant complains that neither witness could remember the exact date when Appellant and Dwayne spent the night at their house and thus should not have been permitted to testify.

In essence, Appellant challenges the weight, and not the admissibility of Mayfield and Spark’s testimony. The trier of fact, not the court, must determine the credibility of the witnesses and the weight to be accorded to their testimony. Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). The jury was free to believe all, part, or none of the evidence presented by these two witnesses. Id. Thus, we reject Appellant’s final claim.

Judgments of sentence affirmed.

JOHNSON, J., files a concurring and dissenting opinion, joined by FORD ELLIOTT, J.

JOHNSON, Judge,

concurring and dissenting.

I agree with my distinguished colleagues that Joseph H. Metts, at all stages of adjudication up to and including direct appeal, has properly preserved his challenge to the illegality of the electronic surveillance based upon the Fourth Amendment of the United States Constitution, and Article I, Section 8 of the Pennsylvania Constitution. Majority Opinion at 282-283. I also agree with the thorough analysis of the Majority, which concludes that Metts had a constitutionally protected expectation of privacy in the premises searched, while he temporarily resided at his sister’s apartment. Id. at 282-287. Because Metts had a protected expectation of privacy, and because his claim of error was properly preserved at all stages of adjudication, I must respectfully dissent from my colleagues’ refusal to apply the rule announced in Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994). See also Commonwealth v. Schaeffer, 539 Pa. 272, 652 A.2d 294 (1994) (Schaeffer II); and Commonwealth v. Schaeffer, 539 Pa. 271, 652 A.2d 294 (1994) (Schaeffer III).

In Brion, at 257, 652 A.2d at 287, our supreme court held that Article I, Section 8 of the Pennsylvania Constitution precludes the police from sending a confidential informer into the home of an individual to electronically record the conversations of that individual and transmit them back to the police. The facts in the present case are indistinguishable, in all material respects, from the facts presented in Brion. Therefore, the applicability of Brion to the present appeal is the only question remaining as to whether the contents of the intercepted conversations should have been suppressed.

I must disagree with the Majority as to our right, as an intermediate appellate court, to decide what effect should be given to a decision of the Supreme Court of Pennsylvania announcing a new rule. There is no authority for the proposition implicit in my colleagues’ analysis in the Majority Opinion that an inferior court may, sua sponte, determine whether a decision pronounced by a higher court must be limited to a prospective application where the higher court is silent on the effect to be given to its decision. In McHugh v. Litvin, Blumberg, Matusow & Young, 525 Pa. 1, 10, 574 A.2d 1040, 1044 (1990), our supreme court, in a unanimous decision, declared that

the general law of our Commonwealth continues to be, as it was at common law, that our decisions announcing changes in the law are applied retroactively, until and unless a court decides to limit the effect of the change, and that litigants have a right to rely on the change, especially if they have a suit pending in our courts at the time the change is announced.

This rule applies with equal force in criminal proceedings. Commonwealth v. Brown, 494 Pa. 380, 384, 431 A.2d 905, 907 (1981); accord Commonwealth v. Cabeza, 503 Pa. 228, 232, 469 A.2d 146, 148 (1983).

The rule that controls this case is set forth in Cabeza, supra. There, the Majority held that “where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.” Id. at 233, 469 A.2d at 148. (Emphasis added). This rule has been expressly recognized as the “third approach” of four possible approaches to apply in deciding what effect should be given to a decision announcing a new rule. Blackwell v. Commonwealth of Pennsylvania State Ethics Commission, 527 Pa. 172, 181-82, 589 A.2d 1094,1099 (1991).

As the Majority points out, our supreme court, in announcing its decision in Brion, did not address whether that decision should be retroactively applied. Nevertheless, the Majority infers, without any explicit justification, that because the Supreme Court of Pennsylvania did not expressly deal with retroactivity in the Brion decision, this Court is free to apply the criteria set forth in Blackwell and reach its own, independent determination as to whether that decision of our higher court should be retroactively applied. Based upon the rule enunciated in Cabeza, supra, I believe this is error.

I recognize that a panel of this Court recently considered how a ruling of our supreme court should be applied where the higher court’s ruling was silent on the issue of retroactivity. Commonwealth v. Parker, 435 Pa.Super. 81, 644 A.2d 1245 (1994), appeal denied, 540 Pa. 630, 658 A.2d 793 (1995). In Parker, the question was whether the decision of the Supreme Court of Pennsylvania pronounced in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), which was silent on the issue of retroactivity, should be applied retroactively. While the author of Parker ostensibly engages in a retroactivity analysis and quotes extensively from Pennsylvania Supreme Court cases, the result in Parker goes no further than applying the rules set forth in Blackwell, supra, and the cases coming before it. Thus, Parker does not support the Majority’s determination that this Court may engage in a retroactivity analysis and limit a Supreme Court decision to prospective application.

I have found no other case where a Pennsylvania intermediate appellate court has attempted to perform a retroactivity analysis of a decision declared, by the Supreme Court of Pennsylvania. In all of the other cases relied on by the Majority, our supreme court considers the retroactive application of its own decisions or rulings, either at the time when the ruling or precedent is pronounced or shortly thereafter. See Blackwell, supra; Cabeza, supra; August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981); Brown, supra. See also McHugh, supra. In none of these cases did the Supreme Court of Pennsylvania limit a precedent to prospective application where the later case had properly preserved the issue at all stages of adjudication up to and including direct appeal.

The formal purpose of the Superior Court is to maintain and effectuate the decisional law of the Supreme Court of Pennsylvania as faithfully as possible. Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985). Through its decisions in Blackivell, Cabeza, Brown, and McHugh, our supreme court has clearly declared the effect to be given the Brion decision. Our supreme court did not declare the rule in Brion to be prospective only. Therefore, the rule must be applied to all cases where the issue in question has been properly preserved. There is no dispute among the members of this Court involving the preservation of the issue. The issue has been preserved. As a result, the rule in Brion must be applied to this appeal. To do otherwise would constitute a usurpation of the power of the Supreme Court of Pennsylvania to decide, for itself, the effect to be given to its decisions.

Accordingly, I would reverse the judgment of sentence and grant Metts a new trial at which the intercepted conversations would be excluded. Brion, supra, at 262, 652 A.2d at 290. Hence, this dissent.

FORD ELLIOTT, J., joins in this concurring and dissenting opinion by JOHNSON, J.

      . 18 Pa.C.S.A. §§ 2502(a), -3701(a)(l)(i), 3921(a) and 3925(a), respectively.

      . 18 Pa.C:S.A. §§ 903 and 5105(a)(3).

      . In Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987) (en banc), this Court held that the police must obtain a search warrant based on probable cause before sending a confidential informer into a person’s home to electronically record one’s conversation and transmit it back to police. Id. 536 A.2d at 355.

      . In Commonwealth v. Blystone, supra, our Supreme Court rejected the appellant's argument that a warrantless, consensual monitoring conducted in compliance with section 5704(2)(ii) of the Wiretap Act violated Article I, Section 8 of the Pennsylvania Constitution. Blystone, 549 A.2d at 88. The Supreme Court found the rationale in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), reh. denied, 402 U.S. 990, 91 S.Ct. 1643, 29 L.Ed.2d 156 (1971) (plurality opinion), persuasive where the United States Supreme Court reasoned:
      If the conduct and revelations made of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.

        Id. at 751, 91 S.Ct. at 1126.
      In Blystone, our Supreme Court did not address the issue as to where the defendant’s conversation was intercepted and recorded. Thus, it was unclear if the Supreme Court would have ruled differently if the interception occurred in the defendant's home.

      . Appellant argued in his brief in support of his post-verdict motions that a per curiam order and opinion issued by our Supreme Court on June 1, 1993 were the controlling law and should be retroactively applied to his case. In that June 1, 1993 order and opinion, our Supreme Court, affirmed by an equally divided court, this Court’s en banc decision in Schaeffer. Neither Appellant or the trial court recognized that our Supreme Court granted reargument in Schaeffer on June 25, 1993 and the June 1, 1993 order and opinion were withdrawn.

      . See Commonwealth v. McCormick, 359 Pa.Super. 461, 470-476, 519 A.2d 442, 447-449 (1986), for a chronological review of the various approaches followed by the Pennsylvania courts when deciding whether to apply a new rule of law retroactively.

      . See infra, n. 4.

      . As an alternative basis to deny Appellant's claim regarding the admissibility of Sparks' testimony, Appellant did not object to her testimony at trial and thus waived any objection. Commonwealth v. Butts, 495 Pa. 528, 532, 434 A.2d 1216, 1219 (1981) (party must make specific timely objection to proffered testimony at trial to preserve issue for appellate review).