author: HESTER, Judge: OLSZEWSKI, Judge,

text:
    590 A.2d 11
    James CONNELLY and Sharon Connelly, Appellants, v. ROPER CORPORATION.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1990.
    Filed March 21, 1991.
    Reargument Denied May 28, 1991.

      James M. Marsh, Philadelphia, for appellants.
    Gerard J. St. John, Philadelphia, for appellee.
    Before OLSZEWSKI, TAMILIA and HESTER, JJ.
   HESTER, Judge:

In this products liability action, James and Sharon Connelly, appellants, question two of the trial court’s evidentiary rulings. We affirm.

Appellants instituted this action to recover for damages sustained when Mr. Connelly’s hand was injured by a snow thrower manufactured by Roper Corporation and sold by Sears, Roebuck and Co., appellees, in 1968. On December 12, 1982, Mr. Connelly was operating the snow thrower, which he had purchased used at a yard sale earlier that year. Although the label of the chute contained a warning to keep hands clear of the chute, Mr. Connelly placed his hand in the chute in order to clear a chunk of snow that was blocking it. As Mr. Connelly placed his hand in the chute, the unit rolled forward and the chute’s blade, which was rotating at the time, sliced his hand. The unit rolled forward because the machine slipped into gear from a neutral position due to vibration caused by the engine. The evidence established that between the time of its 1968 manufacture and the 1982 accident, the snow thrower had undergone substantial changes that resulted in an increase in both engine speed and vibration.

At trial, appellants alleged that the design of the unit was defective in that it did not have three safety devices that would have prevented the accident. The devices were a deadman’s mechanism that stops the engine when the mechanism is released, separate controls for the wheels and the impeller blade, and a hook-type of detent for the clutch lever. Appellants’ expert testified that if there had been a detent to hold the clutch in place and separate controls for the blade and engine, machine vibration would not have caused the gear to engage, and in addition, the impeller blade would not have turned unless manipulated manually. With these safety devices, the impeller blade would not have rotated when Mr. Connelly placed his hand in the chute, and in addition, the unit could not have vibrated into gear. Appellants’ expert also testified that these safety features were available in 1968 and incorporated into other units manufactured that year.

Appellees contended that the accident was caused by Mr. Connelly’s failure to heed the warning to keep his hand out of the chute and by increased engine vibration caused by post-sale repairwork performed on the unit. Appellees’ expert, who designed the unit, also testified that the safety features discussed by appellants’ expert could not have been incorporated in 1968 into this particular unit because the features caused different safety problems at that time. The jury returned a verdict in favor of appellees. This appeal followed denial of appellants’ post-trial motions.

Appellants allege first that the trial court erred in not permitting them to cross-examine appellees’ expert regarding industry safety standards and design changes adopted after the unit was sold. Although appellants suggest in their brief that the prohibited cross-examination concerned the fact that other 1968 units had the safety features deemed impractical by appellees’ expert, the record belies this assertion. Instead, when appellants’ cross-examination of the witness was restricted, appellants were attempting to introduce evidence about post-1968 design changes made to snow throwers manufactured by Roper and other manufacturers. We have reviewed the entire cross-examination of appellees’ expert and have found two instances where cross-examination was restricted. First, appellants asked if Roper Corporation ever incorporated any of the three relevant safety features into the design of snow throwers after discontinuing the manufacture of this unit:

Q. THIS IS AN OUTDOOR POWER INDUSTRY, AND IT IS THIS TYPE OF PRODUCT, IS THAT RIGHT?
A. THIS IS CONFINED TO JUST THE NORTHERN STATES.
Q. AFTER THIS PRODUCT WAS DISCONTINUED, DID ROPER CONTINUE TO MAKE SNOWTHROWERS?
A. YES, I BELIEVE THEY DID.
Q. DID THEY INCORPORATE ANY OF THESE INTO THE DESIGN OF THE PRODUCT?
MR. ST. JOHN: OBJECTION.
THE COURT: SUSTAINED. WE ARE CONCERNED ABOUT THE TIME THAT THIS UNIT WAS MANUFACTURED, DESIGNED AND SOLD. WHAT MAY HAVE HAPPENED LATER IS NOT BEFORE US. SO, WE ARE NOT GOING TO GO INTO THAT IF ANYTHING HAPPENED LATER, WE DON’T KNOW, BUT WE ARE NOT GOING INTO THAT.

R.R. at 284a. At one other point, the trial court sustained an objection to appellants’ cross-examination. There, appellants admitted that their “question [was] whether there is any difference in the technology between ’68 and the present,” and that based on the expert’s answer, they intended to explore that matter further. Id. at 263a. It is also clear that appellants were permitted to cross-examine the expert with the fact that other units manufactured in 1968 did have those three safety features. Id. at 285-86a. Thus, appellants characterized incorrectly the issue presented. The trial court ruling was that appellants could not question whether Roper Corporation made design changes to snow throwers that it manufactured after 1968.

As to this evidentiary ruling, Gottfried v. American Can Co., 339 Pa.Super. 403, 489 A.2d 222 (1985), is dispositive. In Gottfried, we determined that where the product involved was manufactured and sold in 1977, it was irrelevant that in 1980 the product had safety features not present in the 1977 product. We concluded that design improvements made after the sale of the product are not relevant to the issue presented in a products liability case, which is whether the product was safe when sold. Compare Leaphart v. Whiting Corp., 387 Pa.Super. 253, 564 A.2d 165 (1989) (issue did not involve design changes, but post-sale repair work performed on the unit that actually injured the plaintiff); Matsko v. Harley-Davidson Motor Co., 325 Pa.Super. 452, 473 A.2d 155 (1984) (issue was not design changes to the unit, but post-accident manufacturer recall of the unit which injured plaintiff).

In the present case, appellants were not prevented from showing that the relevant safety features were available in 1968. This was brought out on cross-examination and during their case-in-chief. The only limitation imposed by the trial court was that appellants could not question the expert concerning design changes made after the 1968 sale date. This limitation was imposed properly under our decision in Gottfried.

Appellants’ second objection to the trial proceedings has been waived. They argue that the trial court erred in permitting appellees’ expert to testify that he was not aware of any reports of accidents resulting from the absence of the three relevant safety features. However, this issue was not raised in post-trial motions or in appellants’ brief in support of those motions, and it was not addressed by the trial court in its decision denying post-trial motions. Accordingly, it has been waived. Pa.R.Civ.P. 227.1; Cucchi v. Rollins Protective Services Co., 377 Pa.Super. 9, 19, 546 A.2d 1131, 1136 (1988), reversed on other grounds, 524 Pa. 514, 574 A.2d 565 (1990). Judgment Affirmed.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

The majority relies upon Gottfried v. American Can Co., 339 Pa.Super. 403, 489 A.2d 222 (1985), for the proposition that evidence of subsequent design changes are inadmissible in a strict products liability case. Gottfried does appear to stand for that principle; however, I believe that the Gottfried holding is inconsistent with its own fact pattern, and consequently the similar fact pattern presented here. The Gottfried court noted that when it is alleged that a product has been defectively designed, a jury is required to determine whether the product lacked any safeguard necessary to make it for normal use. Id., 339 Pa.Super. at 410, 489 A.2d at 226 (citations omitted). In such cases, the state of the art at the time of the design/manufacture is relevant. Id. (citations omitted). These are accurate statements of the applicable law with which I have no quarrel. My objection lies in the application of those principles to the fact pattern at issue in Gottfried and the case at bar.

In Gottfried, the plaintiffs were allowed to introduce evidence that other cans had certain safety design features in 1977, the year the can in question was manufactured. The court, however, prevented the plaintiffs from introducing evidence that American Can Co. had incorporated some of those same safety features, available in 1977, in their products in 1981. Id., 339 Pa.Superior Ct. at 409, 489 A.2d at 225-226. The Gottfried court stated: “Design improvements made four years after an injury has occurred are not relevant to show the state of the art at the time the injury occurred.” Id., 339 Pa.Superior Ct. at 410, 489 A.2d at 226 (emphasis added). While this may or may not be an accurate statement of the law as to the relevance of design improvements first made after the manufacture of the product in question, and so, not probative of compliance with the state of the art at the time of manufacture, it simply is not factually applicable to either Gottfried, or the case at bar. These are not design improvements first occurring after the time of design/manufacture of the product in question. Both cases present instances of safety features already available at the time of manufacture; in fact, both cases show evidence that the defendants’ competitors had already incorporated those safety features when the product alleged to be defective was manufactured. It is highly relevant to the question of defective product that a manufacturer subsequently incorporates safety features available at the time of manufacture. This evidence shows that a manufacturer chose to produce an item which was not as safe as it could be considering the state of the art at the time of production. Further, the same manufacturer now considers these same safety features worthy of incorporation into the product in question.

The factual scenario to be presented to the jury is as follows: ALPHA, the product in question, was manufactured by defendant in year 1 without safety features X, Y and Z which were available in year 1. Competitors of defendant manufactured their product, BETA, in year 1 incorporating those safety features X, Y and Z. The plaintiff was injured while using ALPHA, manufactured in year 1 without safety feature X, Y and Z. In year 5, defendant incorporated safety features X, Y and Z, which had been available in year 1, into his product, ALPHA. These facts are obviously relevant to the question: was ALPHA defective when manufactured in year 1 without safety features X, Y and Z which were available at the time?

I question the viability of Gottfried, which I believe materially misstates the factual posture of the case. The public policy underlying the exclusion of subsequent repairs in negligence cases is not applicable to strict liability. Leaphart v. Whiting Corp., 387 Pa.Super. 253, 265, 564 A.2d 165, 173 (1989), alloc. denied, 525 Pa. 619, 577 A.2d 890 (1990); Wilkes-Barre Iron v. Pargas of Wilkes-Barre, 348 Pa.Super. 285, 293 n. 2, 502 A.2d 210, 214 n. 2 (1985); Matsko v. Harley Davidson Motor Co., Inc., 325 Pa.Super. 452, 454-462, 473 A.2d 155, 156-159 (1984). Exclusion of such evidence is no longer necessary to avoid discouraging remedial acts by defendants:

[T]he ... economic realities .. .-—among others, the growing market share of the mass manufacturer, the well-nigh universality of insurance, the escalation of government regulation—-undermine any assumption that it is necessary to pay the price of sheltering defendants in strict products liability litigation from evidentiary use of their product changes in order to persuade them to make improvements ...
manufacturers realize that liability insurance companies will not continue to insure the further production of known defective products ... manufacturers are well aware of the marketing impact which adverse publicity can have on future sales ...

Matsko, supra, 325 Pa.Superior Ct. at 459-60, 473 A.2d at 158-159 [quoting, Caprara v. Chrysler Corp., 52 N.Y.2d 114, 125, 436 N.Y.S.2d 251, 256, 417 N.E.2d 545, 550 (1981) and Davis, Evidence of Post-Accident Failures, Modifications and Design Changes in Products Liability Litigation, 6 St. Mary’s L.J. 792, 798-799 (1975) (footnote omitted) ].

I believe that the subsequent incorporation of a safety design feature available at the time of manufacture qualifies as a subsequent remedial measure and is therefore admissible in a strict products liability case. In such a case, the manufacturer is held liable for manufacturing a product lacking a safeguard, available at the time of manufacture, necessary to make it safe for normal usage. Of course, the manufacture, remains free to introduce evidence that the particular safety features he subsequently incorporated were not available at the relevant time, or, perhaps, that the safety features available at the time of manufacture were incompatible with his product and so, in effect, unavailable to him.

Nor am I convinced that the actions of Mr. Connelly were so reckless that exclusion of this evidence was harmless error. The safety features at issue here would have prevented this unfortunate occurrence despite Mr. Connelly’s placing his hand into the chute of the snowblower. Clearly, the industry was aware that individuals using snowblowers occasionally placed their hands in the chute. Without the evidence indicating Roper Corporation had subsequently decided to incorporate the then existing safety features, the jury could not properly determine whether Mr. Connelly “would have been injured despite the curing of any defect”, or whether his conduct was “so extraordinary and unforeseeable as to constitute a superseding cause.” Gottfried, supra, 339 Pa.Super. at 409, 489 A.2d at 225 [quoting, Burch v. Sears Roebuck & Co., 320 Pa.Super. 444, 452, 467 A.2d 615, 619 (1983) (citations omitted)]. Accordingly, I would remand this case for a new trial.

I respectfully dissent.


source: Caselaw Access Project

author: ROWLEY, President Judge:

license: Public Domain

text:
    590 A.2d 15
    COMMONWEALTH of Pennsylvania v. Albert C. BOATWRIGHT, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 17, 1991.
    Filed April 24, 1991.

      Thomas Livingston, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and DEL SOLE and MONTGOMERY, JJ.
   ROWLEY, President Judge:

In this timely appeal of Albert C. Boatwright from the judgment of sentence of four to ten years imprisonment that was imposed following his plea of nolo contendere to a charge of possession with intent to deliver cocaine, 35 P.S. 780-113(a)(30), the sole claim raised by appellant is that the trial court abused its discretion in denying his pre-sentence motion to withdraw his plea. As “fair and just” reasons for withdrawal of the plea, appellant points to 1) his ignorance, at the time the plea was entered, of 18 Pa.C.S. § 7508(c), which, given the circumstances of appellant’s case, bars any possibility of treatment “in lieu of criminal punishment” under 35 P.S. § 780-118 (“Act 64”); and 2) his assertion of innocence. For the reasons set forth below, we affirm the judgment of sentence.

In order to understand appellant’s claim, we must consider both the relevant statutes and the procedural history of the case. As the result of an incident on November 30, 1988, appellant was arrested and charged with two counts of aggravated assault, 18 Pa.C.S. § 2702(a)(1), possession of cocaine, 35 P.S. § 780-113(a)(16), possession of cocaine with intent to deliver, 35 P.S. § 780-113(a)(30), and two violations of the Uniform Firearms Act, 18 Pa.C.S. §§ 6105, 6106. The aggravated assault charges were eventually dismissed. On November 27, 1989, appellant filed a pre-trial request for treatment under Act 64, which provides in pertinent part as follows:

(a) If a person charged with a nonviolent crime claims to be drug dependent or a drug abuser and prior to trial he requests appropriate treatment ... in lieu of criminal prosecution, a physician experienced or trained in the field of drug dependency or drug abuse shall be appointed by the court to examine, if necessary, and to review the accused’s record and advise the government attorney, the accused and the court in writing setting forth that for the treatment and rehabilitation of the accused it would be preferable for the criminal charges to be held in abeyance or withdrawn in order to institute treatment for drug dependence or for the criminal charges to be prosecuted. The government attorney shall exercise his discretion whether or not to accept the physician’s recommendation.

35 P.S. § 780-118(a).

Appellant’s request was considered at a guilty plea hearing held the following day. At the outset the following exchange took place among the court, the assistant district attorney, and defense counsel:

Defense Counsel: So where that leaves us is there are four remaining charges.
Court: All right.
Defense Counsel: One is possession of a firearm by a convicted felon, another is a possession of a firearm, either concealed or in a vehicle, and then there is possession of 5.9 grams of cocaine, plus possession with intent to deliver; and, in essence,—
Court: 5.9 grams under the mandatory provisions? Defense Counsel: Yes, that is [sic]. I’m not exactly sure what that—I believe it’s one year, one year minimum. A.D.A.: But I think the guidelines call for much more than that, anyway, so.
Defense Counsel: I wasn’t aware that there were mandatory provisions that applied.
A.D.A.: Like I say, the guidelines, themselves, provide for far more than that, anyways.
Court: Any offense occurring after July 7th, 1988— Defense Counsel: 1988.
Court:—involving more than two grams, goes with the mandatory.
Defense Counsel: Okay.

N.T. at 3-4. Defense counsel then referred to the Act 64 request, which he explained as follows:

In essence, what my request would be is to have the Court rule on that request. If the ruling is such that Albert Boatwright does have a physician appointed to examine him, then we are prepared today to do a postponement and appear here scheduling a plea or further proceedings on Act 64; and by way of alternatives, if the Court does not grant the relief that’s requested here, we are prepared to plead guilty to the charges as they stand in the Information without the aggravated assault charges.

N.T. at 9. The assistant district attorney expressed the belief that Act 64 was not appropriate in appellant’s case. The court then observed that “I suppose I could find the same examination by merely having a behavior examination” (N.T. at 10). When defense counsel suggested that “Act 64 provides for alternative remedy after a plea of guilty or after a finding of guilt[; t]here is the availability of seeking the same provision,” the court replied, “Sure” (N.T. at 11). The court noted, however, that a firearms violation and the offense of possession with intent to deliver, “coupled together, in my opinion, do not fall within the concept of non-violent crime ...” (N.T. at 13). The court then ruled as follows:

I’m not going to entertain the matter pre-trial. I will, however, assuming the Defendant enters a plea of guilty or is found guilty, have the Defendant examined by the Behavior Clinic post-verdict.

N.T. at 14. Defense counsel stated that “[w]e are prepared to plead guilty now” (N.T. at 14), and the court proceeded with the guilty plea colloquy. The court informed appellant that he faced a “maximum penalty [of] imprisonment for not less than five nor more than ten years” (N.T. at 17) on the possession with intent to deliver charge. Appellant acknowledged that he had truthfully completed a guilty plea colloquy form and that he had not been promised anything in exchange for his plea. When defense counsel explained that appellant wished to plead nolo contendere rather than guilty to the charge of possession with intent to deliver, the court questioned appellant as follows:

You understand that a plea of nolo contendere means that you do not contest the evidence that the Commonwealth is offering, that’s simply all it means, you do not have a defense to it and you do not contest it; do you understand?

N.T. at 24; emphasis added. Appellant replied that he understood, and his pleas were accepted by the court. The following exchange subsequently took place:

Court: You want me to issue a pre-sentence report as well as a behavior report?
Defense Counsel: The provision of Act 64 is 780-118, Paragraph f, which provides: In lieu of pre-trial consideration and review post-verdict[] and I would request that as a part of deferring sentencing allowing a pre-sentence report to be ordered and, in the meantime, have that review conducted.

N.T. at 31. The court agreed to arrange for the Behavior Clinic or a physician to conduct the requested evaluation. There followed a discussion concerning bail, in the course of which the court noted that “as to the drug charge, there, the Defendant has a minimum mandatory sentence of one year which the Court must impose and' I understand ... that the guidelines would indicate that the appropriate sentence should be far more significant than that” (N.T. at 38); there was no comment from appellant or his counsel. The court set January 23, 1990 as the sentencing date.

On December 22, 1989, appellant filed a motion to withdraw his plea of nolo contendere to the charge of possession with intent to deliver cocaine. He maintained that it had been his goal to obtain Act 64 treatment and/or a sentence of probation conditioned upon drug treatment and that it was not until the court, at the plea hearing, referred to the one-year mandatory minimum sentence that he and his counsel learned that 18 Pa.C.S. § 7508 required such a sentence. In addition,

it was undersigned counsel’s impression that Act 64 would give the court the means to avoid the mandatory sentencing provision of 18 Pa.C.S. § 7508. It appears that § 7508—at least in some circumstances—forecloses an “Act 64” disposition.

Motion to Withdraw Plea at 2. With regard to appellant’s circumstances, this statement is correct, as the following provision shows:

(c) Mandatory sentencing.—There shall be no authority in any court to impose on an offender to which this section is applicable a lesser sentence than provided for herein or to place the offender on probation, parole, work release or prerelease or to suspend sentence____ Disposition under section 17 [probation without verdict] or 18 [Act 64] of The Controlled Substance, Drug, Device and Cosmetic Act shall not be available to a defendant to which this section applies.

18 Pa.C.S. § 7508(c) (footnote omitted).

The trial court considered appellant’s request at a hearing on January 31, 1990. The following exchange is pertinent:

Defense Counsel: ... In this case my concern is that the plea wasn’t knowingly, voluntarily or intelligently made, because at the time of the plea Mr. Boatwright was not aware of his—
A.D.A.: Your Honor, may I facilitate the proceedings here? ... The guidelines are clearly in excess of the mandatory one year.
Court: They certainly are.
Court: My recollection is that the defendant was informed of the mandatory minimum by the Court.
Defense Counsel: No question, that’s when he was informed, but at that stage it was midstream during a plea colloquy assessing the relative merits of—
Court: Had you discussed it, the guidelines?
Defense Counsel: Yes. So, in terms of the guidelines ... my position there is it’s clear, ... the minimum exceeds one year by some significant point.

N.T. at 4-5. The court reached the following conclusion:

You sat down and explained to [appellant] what the guidelines were and what the range of sentences were, and the range of sentence in this case far exceeds whatever mandatory minimum there would be in the case. In fact, the bottom end of the mitigated range more than triples the minimum sentence. Based upon that the Court does not find it appropriate to permit leave to withdraw the guilty plea, and the motion will be denied.

N.T. at 9.

The Commonwealth contends on appeal that appellant has waived his claim by failing to raise it in a post-sentence motion as required by Pa.R.Crim.P. 321. In a reply brief appellant asserts that he was not sufficiently informed by the trial court at the close of the plea hearing that he was required to do so or, alternatively, that his failure to do so is excused by the extraordinary circumstance of counsel’s ineffectiveness. As the trial court has addressed appellant’s claim on its merits, we will do so also.

However, we do not find appellant’s claim to be meritorious. Appellant’s argument, as we understand it, is that although he was made aware during the course of the plea colloquy that the charge of possession with intent to deliver entailed a mandatory minimum sentence, he was not made aware that 18 Pa.C.S. § 7508(c) precluded any possibility of Act 64 disposition on such a charge. In fact, appellant contends, the trial court was also mistaken on this point and, by promising to schedule an examination, misled him into believing that he would remain eligible for an Act 64 disposition. Appellant avers that he would not have pled to the charge if he had known of the significance of § 7508(c).

Although “[t]he withdrawal of a guilty plea prior to sentencing should be freely permitted for any fair and just reason unless such an allowance substantially prejudices the prosecution,” Commonwealth v. Jones, 389 Pa.Super. 159, 162, 566 A.2d 893, 894 (1989), alloc. denied, 525 Pa. 632, 578 A.2d 926 (1990), there is no absolute right to withdraw such a plea, Commonwealth v. Cole, 387 Pa.Super. 328, 331, 564 A.2d 203, 204 (1989) (en banc) [quoting Commonwealth v. Forbes, 450 Pa. 185, 299 A.2d 268 (1973) ], and we will not disturb the trial court’s decision in such a matter absent an abuse of discretion, Commonwealth v. Jones, 389 Pa.Super. at 162, 566 A.2d at 894-95. In terms of its effect upon a case, a plea of nolo contendere is treated the same as a guilty plea. Commonwealth v. Jackson, 376 Pa.Super. 433, 546 A.2d 105, 107 (1988). The record in the present case, which we have carefully examined, does not indicate that an abuse of discretion has occurred. Before appellant entered his plea, his counsel informed the court that “if the Court does not grant the relief that’s requested here, we are prepared to plead guilty to the charges ...” (N.T. at 9). This statement suggests that appellant’s decision to plead to the charges was not dependent upon the likelihood of obtaining an Act 64 disposition. In addition, by expressing its intention to have appellant examined by the Behavior Clinic after the verdict, “assuming the Defendant enters a plea of guilty or is found guilty” (N.T. at 14), the court informed appellant that he would not lose the chance for such an examination by deciding to go to trial.

Moreover, leaving aside the fact that an Act 64 disposition was barred by statute, there is no indication in the record that the trial court would have been inclined to grant such a disposition. To the contrary, the trial court informed appellant, before he entered his pleas, that his case did not appear to be an appropriate one for Act 64 disposition. It is undisputed that defense counsel discussed the possible range of sentences with appellant, and, as the Commonwealth notes in its brief on appeal, the minimum mitigated sentence under the guidelines was three years and nine months, which “dwarfs the mandatory minimum ...” (Brief for Appellee at 8). Finally, Act 64 leaves the decision whether to accept the physician’s recommendation of treatment to the discretion of the district attorney in the case of a pre-trial request and to the discretion of the trial court in the case of a post-trial request. We agree with the Commonwealth that “[u]nder these circumstances, the fact that appellant entertained what could be nothing more than a vain hope of Act 64 treatment when it was nevertheless totally unwarranted and precluded under the law cannot be viewed as a ‘fair and just’ reason to permit pre-sentence withdrawal” of the plea (Brief for Appellee at 8-9; footnote omitted).

Appellant also contends that his assertion of innocence is a fair and just reason to permit withdrawal of the plea. This Court has held that “an assertion of innocence may constitute a fair and just reason for the pre-sentence withdrawal of a guilty plea.” Commonwealth v. Cole, 387 Pa.Super. at 333, 564 A.2d at 205. As the Commonwealth points out, however, neither in his motion to withdraw the plea nor at the hearing on the motion did appellant, through his counsel, assert his innocence as a reason for wishing to withdraw the plea. In fact, counsel for appellant stated at the hearing that appellant “would not dispute the fact the evidence would be sufficient to prove the charge ...” (N.T. at 2). Moreover, appellant’s assertion in this appeal that he has a defense to the charge of possession with intent to deliver contradicts his admission during the plea colloquy that he had no defense. Accordingly, this argument, like the first, is without merit.

Judgment of sentence affirmed.

      . Subsection (f) provides in pertinent part as follows:
      If, after conviction, the defendant requests probation with treatment or civil commitment for treatment in lieu of criminal punishment the court may appoint a qualified physician to advise the court in writing whether it would be preferable for the purposes of treatment and rehabilitation for him to receive a suspended sentence and probation on the condition that he undergo education and treatment for drug abuse and drug dependency ... or to receive criminal incarceration____ The court shall exercise its discretion whether to accept the physician’s advice.
      35 P.S. § 780-118(f).

      . 18 Pa.C.S. § 7508(a)(3)(i) provides that a first conviction of possession with intent to deliver at least 2.0 grams and less than 10 grams of cocaine is punishable by a mandatory minimum term of imprisonment of one year.

      . Appellant’s counsel at the guilty plea proceeding continues to represent him on appeal, and appellant has not challenged his effectiveness generally.


author: HOFFMAN, Judge:

text:
    590 A.2d 20
    Mary Jean HOUSEKNECHT and Donald Houseknecht v. Quentin R. WALTERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 11, 1990.
    Filed April 30, 1991.

      David W. Saba, Wilkes-Barre, for appellant.
    Richard Rubin, Philadelphia, for appellees.
    Before MONTEMURO, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from a May 25, 1990 order granting the motion for a new trial of appellees, Mary and Donald Houseknecht. Appellant, Quentin R. Walters, argues that the trial court erred in granting appellees a new trial because the evidence adduced at trial supported the jury’s verdict. We affirm.

On March 13, 1984, an accident occurred in which appellant’s vehicle struck from behind appellees’ vehicle, which was being driven by appellee Mary Houseknecht. On May 31, 1985, appellees filed a negligence suit against appellant. A jury trial was initiated on February 27, 1989. On March 3, the jury returned its verdict in favor of the defendant. Appellees filed post-trial motions for judgment notwithstanding the verdict (j.n.o.v.), and a new trial. On May 25, 1989, the trial court entered its order denying the motion for j.n.o.v. and granting appellees a new trial. It is from this order that appellant timely appeals.

The evidence adduced at trial revealed the following uncontroverted facts. The accident occurred at approximately 12:15 p.m. on Market Street, a highway in the borough of Kingston, Luzerne County. At the time of the accident, the highway consisted of two westbound and two eastbound lanes, separated by an emergency lane in the center. See Plaintiffs Exhibit 1. There were also curb lanes on both sides of the highway. Id. The speed limit at the time the accident occurred was 35 miles per hour (mph). See R.R. at 677a. The road conditions were snowy or slushy. Id. at 604a-605a. Appellant’s vehicle rear-ended appellees’ vehicle, and the vehicles came to rest with appellant’s vehicle positioned directly behind appellees’ vehicle, the wheels of which were slightly pushed into the emergency lane separating the westbound lanes from eastbound traffic. See N.T. February 27, 1989 at 85-86. Appellees’ vehicle sustained significant damage. See Plaintiff’s Exhibits 1 and 2. Appellant moved the vehicles from the highway before the police arrived. Id. at 37. There were no skid marks. See N.T. February 27, 1989 at 87.

The parties’ accounts of the details of the accident itself differ significantly. Appellant testified that immediately before the accident occurred, he was traveling in the left lane of the highway at approximately 20 mph. See N.T. February 27, 1989 at 580. According to appellant, at the time the accident occurred appellees’ vehicle was traveling at the same speed approximately 45 to 50 feet in front of him in the right lane. Id. at 579. Appellant stated that Mrs. Houseknecht suddenly skidded into his lane at a 45 degree angle, id. at 580, 607, that he immediately braked to avoid colliding with her, id. at 580, but that he slid approximately 20 feet in a “split second” before he hit her. Id. at 627, 619.

Mrs. Houseknecht testified that she and appellant were both traveling in the left lane at 20-25 mph. Id. at 84, 88. According to Mrs. Houseknecht, immediately before the accident occurred she braked and slightly skidded onto the emergency median in order to avoid a snowplow which appeared to be edging into her lane. Id. at 82. She further stated that appellant’s vehicle then struck her from behind. Id.

Officer Paul Roberts, who filed a police report of the incident, presented his report and testified at trial. When he arrived, the vehicles were on the side of the road. Id. at 31. Officer Roberts interviewed the parties at the scene. Mrs. Houseknecht’s version of the accident was consistent with her trial testimony. Id. at 32, 82. Appellant, however, made no mention to the officer that Mrs. Houseknecht had skidded into his lane. In addition, contrary to his trial testimony, appellant told the officer that the vehicles had been in the same lane when the incident occurred. Id. at 36. The jury was charged and returned a verdict in favor of appellant. Following post-trial motions, however, the trial court found the verdict to be contrary to the weight of the evidence, and granted appellees’ motion for a new trial.

The trial court explained the basis for this conclusion in its opinion, as follows:

Our review of [appellant’s] testimony creates a scenario that this was a split-second mishap during which he asserts [appellee] skid in front of him. [Appellant] asserts that he had no time to react. Converse to that view, however, is his. testimony that he was 45 to 50 feet behind [appellee] and that the parties were traveling at a static speed well under the speed limit. [Appellant] further testified that he slid only one to two car lengths prior to striking [appellee’s] vehicle.
We find it hard to logically accept that a motor vehicle 45 to 50 feet behind another, traveling only 20 miles per hour and confronted with a vehicle swerving in front of him, does not have the time to react to avoid the collision. The testimony further contradicts [appellant’s] answers to interrogatories which are found in the court record indicating that he skidded straight ahead prior to striking the [appellee’s] vehicle....
The physical evidence presented also convinces us that the impact occurred in a straight line fashion. The cars came to rest in the same lane without [appellee’s] vehicle being pushed in a counterclockwise direction as would be indicated if it crossed in front of [appellant’s] vehicle at a 45 degree angle.
Further, we believe that the miscarriage of justice that occurred herein created by the jury’s confusion over the factual record also relates to their understanding of the applicable law concerning the clear distance ahead rule. The doctrine is codified at 75 Pa.C.S.A. § 3361 as follows:
“No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead rule.”
Based on the facts presented in this record, the jury should have determined that [appellant] failed to operate his vehicle at a speed and with such control that he could have stopped within the assured clear distance ahead. As a consequence of this finding, [appellant] should have been adjudged negligent as a matter of law____
What is clear to this Court is that the jury placed inordinate emphasis on the possibility of a sudden emergency confronting [appellant] and overlooked the determinative application of the assured clear distance ahead rule. The jury further, in pursuance of its view that a sudden emergency existed, disregarded [appellant’s] inconsistent and implausible testimony as to the occurrence of the accident, and disregarded the testimony of the investigating officer who appeared at the scene of the accident and who prepared the Police Accident Report.

Trial Court Opinion, May 25, 1990 at 4-5. Thus, the trial court based its decision to grant appellees a new trial on its determination that appellant’s testimony was inconsistent with evidence of record concerning the circumstances of the accident.

Appellant’s first argument is that because the evidence adduced at trial supported the jury’s verdict, the trial court erred in granting appellee a new trial. The decision whether to grant a new trial is within the discretion of the trial court, and that court’s decision will be overturned on review only if we determine that the court acted capriciously or palpably abused its discretion. Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985); Burton v. Boland, 339 Pa.Super. 444, 489 A.2d 243 (1985); see also Buck v. Scott Tp., 325 Pa.Super. 148, 472 A.2d 691 (1984). Furthermore, Pennsylvania courts will not grant a new trial on the basis of weight of the evidence issues unless the evidence supporting the verdict is so inherently improbable or at variance with admitted or proven facts or with ordinary experience as to render the verdict shocking to the court’s sense of justice. Thompson v. City of Philadelphia, supra; see also Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 539 A.2d 871 (1988); S.N.T. Industries, Inc. v. Geanopulos, 363 Pa.Super. 97, 525 A.2d 736 (1987). The reason for granting a new trial when the verdict is contrary to the weight of the evidence is to give right another opportunity to prevail. Thompson v. City of Philadelphia, supra.

Here, after carefully reviewing the record, the parties’ briefs, and the trial court opinion, we cannot conclude that the trial court abused its discretion in finding that appellant’s testimony was so internally inconsistent and at such a variance with the physical evidence and uncontroverted facts proven at trial as to justify the grant of a new trial. First, as the trial court noted, appellant’s characterization of the manner in which the accident occurred was implausible. Appellant claimed that the parties were 45-50 feet apart and in separate lanes before the accident occurred, and the parties’ vehicles were traveling at approximately 20-25 mph before the collision. A driver traveling at such a low speed and who reacted “within a split second” should have been able to avoid colliding with a vehicle entering his lane from 45-50 feet in front of him. Second, appellant’s testimony that Mrs. Houseknecht came across into his lane at a 45 degree angle before the collision was inconsistent with the undisputed evidence that appellees’ vehicle was damaged in the rear, and that the vehicles came to rest with appellant’s automobile directly behind appellees’ automobile. If, as appellant alleged, Mrs. Houseknecht had cut in front of him at a 45 degree angle immediately before impact, common sense indicates that her vehicle would have been pushed counterclockwise farther out into the emergency median. Third, appellant’s characterization of the accident is inconsistent with the amount of damage appellee’s vehicle suffered. An accident in which vehicles 45-50 feet apart were both decelerating from a top speed of 20-25 mph before impact should have caused minimal damage, especially since both cars were skidding at the time of impact. Finally, appellant’s testimony at trial conflicted with both the information he gave Officer Roberts at the scene and his sworn statement that he swerved to the right to avoid the collision. See Plaintiff’s Exhibit 1; R.R. at 641a-645a. In summary, our review of the record leads us to concur in the trial court’s finding that appellant’s version of the facts was inherently improbable and at variance with ordinary experience and the physical evidence presented at trial.

Appellant nevertheless argues that the trial court erred in granting appellee a new trial because it based its ruling on inconsistencies in his testimony and credibility determinations that should have been decided by the jury. We recognize of course, that the credibility of witnesses is primarily for the fact finder’s appraisal. Appellant’s argument, however, is tantamount to a suggestion that a trial court can never grant relief on a weight of the evidence claim. We cannot agree. As our Supreme Court has noted:

Traditionally under our system of jurisprudence, issues of credibility are left to the trier of fact for resolution.... While there may be some legitimacy for a trial court, who has also observed the witnesses as they testified, to consider the weight of the evidence and to that extent review the jury’s determination of credibility, there is surely no justification for an appellate court, relying on a cold record, to exercise such a function.

Commonwealth v. Farquharson, 467 Pa. 50, 59-60, 354 A.2d 545, 550 (1976). We also note that when the trial court is satisfied that the jury’s verdict was based on incredible or unbelievable evidence, the court is obligated to grant a new trial. Gougher v. Hansler, 388 Pa. 160, 130 A.2d 150 (1957); see also Thompson v. City of Philadelphia, supra; Giovanetti v. Johns-Manville, supra; S.N.T. Industries, Inc. v. Geanopulos, supra. Accordingly, we hold that the trial court did not abuse its discretion in granting appellee a new trial, and we affirm the order below.

Order affirmed. Case remanded for new trial.

Jurisdiction relinquished.

MONTEMURO, J., concurs in the result.

      . Although appellant took this appeal from the trial court order granting appellees a new trial and denying his motion for j.n.o.v., appellant does not raise the j.n.o.v. issue in his brief. Accordingly, we will not address it here.

        . Appellant’s final argument is that the trial court erred in granting appellee a new trial because the court’s jury instructions were not improper. Specifically, appellant argues that the jurors were entitled to rely on the court’s charge regarding the sudden emergency rule. This argument derives from the fact that the trial court opinion states that the jury focused too much on the possibility of a sudden emergency. However, we should emphasize that the court granted appellee a new trial because the evidence did not support appellant’s claim that he was confronted with a sudden emergency. See Trial Court Opinion, May 25, 1990 at 4-5. As noted above, we agree with the trial court’s finding in this regard. Thus, the jury could not have properly relied on the sudden emergency instruction, and appellant’s argument is meritless.


author: MONTEMURO, Judge:

text:
    590 A.2d 24
    Julia C. SMITH, Appellant, v. FIREMENS INSURANCE COMPANY OF NEWARK, NEW JERSEY.
    Superior Court of Pennsylvania.
    Argued March 14, 1991.
    Filed May 1, 1991.

      David A. Flores, Lancaster, for appellant.
    John A. Onorato, York, for appellee.
    Before MONTEMURO, JOHNSON and HESTER, JJ.
   MONTEMURO, Judge:

Plaintiff-appellant, Julia C. Smith (hereinafter “Smith”), appeals from the entry of summary judgment in favor of defendant-appellee, Firemens Insurance Co. of Newark, New Jersey (hereinafter “Firemens”). Smith brought this action to recover medical expense benefits allegedly owed under an insurance contract existing between Smith and Firemens. The parties entered into a stipulation of facts and submitted cross-motions for summary judgment on the issue of Firemens’ liability for the medical expenses. The trial court rejected all of Smith's arguments and concluded that under Pennsylvania’s Motor Vehicle Financial Responsibility Law, Firemens owed Smith nothing more than the $10,000 in first party benefits which Firemens had already paid to Smith. For the following reasons, we reverse.

Smith, a Pennsylvania resident, entered into an automobile insurance contract in Pennsylvania with Firemens, a New Jersey insurance company. On June 10, 1988, the Jeep Wagoneer insured under the policy overturned while being driven in New Jersey; Smith was a passenger in the Jeep, and as a result of the accident, suffered a cervical fracture which rendered her a quadriplegic. Smith will require continued medical care for the remainder of her life.

In accordance with the Pennsylvania Financial Motor Vehicle Responsibility Law, 75 Pa.C.S.A. § 1711 (requiring minimum first party coverage for medical benefits in the amount of $10,000), Firemens promptly paid Smith $10,000 in first party medical expense benefits, but has denied Smith’s demands for coverage of her additional medical expenses, which are far in excess of $10,000. Hence, Smith brought this suit. The question which we must decide is whether New Jersey’s Compulsory Insurance Law provisions requiring New Jersey insurance companies to pay unlimited first party benefits to an out-of-state insured who operates her vehicle in New Jersey are applicable to this case.

The relevant New Jersey provisions state:

Any insurer authorized to transact or transacting automobile or motor vehicle insurance business in this State ... which sells a policy providing automobile or motor vehicle liability insurance coverage, or any similar coverage, in any other state ... shall include in each policy coverage to satisfy at least the ... personal injury protection benefits coverage pursuant to section 4 of P.L.1972, c. 70 (C. 39:6A-4) ..., whenever the automobile or motor vehicle insured under the policy is used or operated in this State.
Any liability insurance policy subject to this section shall be construed as providing the coverage required herein, ...
Each insurer authorized to transact or transacting automobile or motor vehicle insurance business in this State and subject to the provisions of this section shall, within 30 days of the effective date of P.L.1985, c. 520, file and maintain with the Department of Insurance written certification of compliance with the provisions of this section.

N.J.Stat.Ann. § 17:28-1.4 (West 1988).

The version of N.J.Stat.Ann. § 39:6A-4 in effect at the time of Smith’s accident provided:

Every automobile liability insurance policy insuring an automobile as defined in this act against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of ownership, operation, maintenance or use of an automobile shall provide personal injury protection coverage, as defined hereinbelow, under provisions approved by the Commissioner of Insurance, for the payment of benefits without regard to negligence, liability or fault, to the named insured ... who sustained bodily injury as a result of an accident while occupying ... or using an automobile
“Personal injury protection coverage” means and includes:
a. Medical expense benefits. Payment of all reasonable medical expenses incurred as a result of personal injury sustained in an automobile accident. ...

Smith first argues that Pennsylvania’s Insurance Department regulations require that the basic loss benefits under her policy be increased to satisfy New Jersey’s requirement that the insurer pay unlimited medical expense benefits. See 31 Pa.Code § 66.41 . We agree with the trial court that this regulation is not applicable to Smith’s case, as the regulation was promulgated pursuant to the now-repealed No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq. Where the statute authorizing the promulgation of a regulation is repealed, the regulation is not binding, as regulations may not exceed the scope of their authorizing statute. See generally Hospital Association of Penn. v. MacLeod, 487 Pa. 516, 410 A.2d 731, 733 (1980) (substantive rule-making of administrative agency will be upheld where “the statutory delegation can reasonably be construed to authorize it.”); Serefeas v. Nationwide Insurance Co., 338 Pa.Super. 587, 488 A.2d 48 (1985) (administrative regulations must not be contrary to the legislative intent expressed in the statutory provision to which the regulation relates). Smith’s policy was issued in accordance with the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S.A. § 1701 et seq. Thus, she may not rely on the regulations under the No-Fault Act. Neither the MVFRL nor the regulations issued pursuant to the MVFRL address the specific question of the coverage limits of an insurer where the insured is domiciled in Pennsylvania but is involved in an accident outside of Pennsylvania.

Smith next argues that even without the benefit of the Pennsylvania regulation, New Jersey’s compulsory insurance law, N.J.S.A. § 17:28-1.4, supra, requires Firemens, a New Jersey insurance company which sold a policy of insurance out of state, to meet New Jersey’s minimum PIP requirements where, as in this case, the covered vehicle is operated in New Jersey; Smith thus maintains that the contract of insurance must be interpreted accordingly. Firemens responds by characterizing this as a conflict of laws question, maintaining that Pennsylvania’s choice of laws principles require that the policy be interpreted in accordance with the MVFRL. Firemens argues that 75 Pa.C.S.A. § 1711, requiring that the insured be provided a minimum of $10,000 in basic loss benefits, conflicts with the New Jersey Compulsory Insurance Law which requires payment of all reasonable medical expenses arising out of the accident. This argument, while superficially appealing, lacks merit.

Although the two statutes in question impose differing obligations, we disagree that they are in conflict. The policy underlying § 1711 of Pennsylvania’s MVFRL is that Pennsylvania’s insureds receive at least $10,000 in basic loss coverage. Applying the New Jersey provisions in no way defeats Pennsylvania’s interest reflected in § 1711, because with the application of the New Jersey statute, the insured will receive more than the $10,000 minimum coverage; thus, application of the New Jersey statute in this case furthers Pennsylvania’s interest in assuring that its citizens receive a certain minimal level of coverage. In addition, application of the New Jersey law furthers several of New Jersey’s interests, that is, the interest in having out-of-state residents who are injured while travelling on New Jersey highways receive coverage for their reasonable medical expenses; the interest in having the rights of insurance companies authorized to do business in New Jersey governed by New Jersey law; and the interest in having sister states give full faith and credit to its insurance law. We disagree that this case presents a conflict of laws question, as the underlying legal principles at issue, albeit different, are not in conflict. Firemens seeks to avoid application of its own state’s compulsory insurance laws which require Firemens, as an insurer authorized to do business in New Jersey, to include coverage for all reasonable medical expenses on out-of-state vehicles which are operated in New Jersey.

We now must determine whether as a matter of judicial comity, we should exercise our discretion and apply the provisions of the New Jersey statute. “Comity” is the principle that courts of one state or jurisdiction will give effect to laws and judicial decisions of another state out of deference and mutual respect, rather than out of duty:

Comity refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states....
“ ‘By the courtesy of nations, whatever laws are carried into execution, within the limits of any government, are considered as having the same effect every where, so far as they do not occasion a prejudice to the rights of the other governments, or their citizens....
“ ‘[N]othing would be more inconvenient in the promiscuous intercourse and practice of mankind, than that what was valid by the laws of one place, should be rendered of no effect elsewhere, by a diversity of law...”
“ 'Comity/ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one [state] allows within its territory to the legislative, executive or judicial acts of another [state] ...”

Societe Nationale Industrielle Aerospatiale v. U.S. District Court for the Southern Dist of Iowa, 482 U.S. 522, 548 n. 27, 107 S.Ct. 2542, 2555 n. 27, 96 L.Ed.2d 461 (1987) (citations omitted).

Application of § 17:28-1.4 of New Jersey’s Compulsory Insurance Law contradicts no public policy of Pennsylvania, and in fact, furthers Pennsylvania’s policy that insureds receive coverage for their basic losses. The interests and rights of Pennsylvania citizens and New Jersey citizens are not compromised by application of the New Jersey provisions. New Jersey’s interests in establishing laws for its own insurance companies, in assuring that New Jersey insurance companies comply with these laws, and in assuring that individuals who are injured on its highways are provided with insurance coverage for their medical expenses are furthered by our enforcement of § 17:28-1.4. We perceive no unfairness or injustice in applying the New Jersey provisions, particularly in view of the fact that Firemens is a New Jersey insurance company, and therefore is subject to the benefits, protections and obligations of New Jersey’s statutes. Firemens cannot claim surprise or lack of awareness of its own state’s laws.

In view of the foregoing, we will exercise our discretion and in the spirit of cooperation, hold that §§ 17:28-1.4 and 39:6A-4 of New Jersey’s Compulsory Insurance Law are applicable here. Accordingly, we interpret the insurance contract as requiring Firemens to pay all of Smith’s reasonable medical expenses.

We reverse the grant of summary judgment in favor of Firemens and remand this case for proceedings consistent with this decision.

Reversed and remanded. Jurisdiction relinquished.

      . § 66.41. Motor Vehicles in interstate travel.

        (a) If an insured domiciled in this Commonwealth is involved in an accident outside the Commonwealth he shall be entitled to be protected by the same liability coverage and to receive the same basic loss benefits as if the accident occurred in the Commonwealth, except for the following:
      (1) The limits of the company’s liability and the scope and limits of the basic loss benefits coverage provided shall be increased to the extent necessary to satisfy the minimum requirements of the law in the place where the accident occurs.
      31 Pa.Code § 66.41(a)(1).


author: POPOVICH, Judge:

text:
    590 A.2d 300
    COMMONWEALTH of Pennsylvania, Appellant, v. Elsie LOGAN, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1990.
    Filed April 8, 1991.
    Petition for Allowance of Appeal Denied Aug. 26, 1991.

      Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., appellant.
    Alonzo Burney, Pittsburgh, for appellee.

      Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

In this appeal from the judgment of sentence entered in the Court of Common Pleas of Allegheny County, we are faced by a question of first impression: Whether a sentencing court may impose a sentence below the minimum sentence mandated by 18 Pa.C.S.A. § 7508(a)(3)(iii). Having reviewed the record and the legal arguments presented, we find that the lower court erred when sentencing appellee to one (1) to three (3) years incarceration for possession with intent to deliver approximately 102 grams of cocaine, a crime which carries a mandatory mandatory minimum sentence of four (4) years in prison and a $25,000.00 fine. Accordingly, we vacate appellee’s sentence and remand for resentencing in accordance with 18 Pa.C.S.A. § 7508(a)(3)(iii).

On January 19, 1989, appellee, Elsie Logan, was found guilty of possession with intent to deliver cocaine, possession of cocaine and possession of drug paraphernalia. The following day, appellant, the Commonwealth of Pennsylvania, provided written notice to appellee and the trial court of its intention to request imposition of the mandatory minimum sentence of four (4) years and a $25,000.00 fine as provided for in the Crimes Code, 18 Pa.C.S.A. § 7508.

On March 23, 1989, the sentencing court imposed a sentence of four (4) to eight (8) years of incarceration and a fine of $25,000.00. However, upon review of appellee’s motion to modify sentence, the sentencing court vacated appellee’s sentence and, on January 30, 1990, resentenced appellee to one (1) to three (3) years of incarceration to be served in the Female Offenders Program and five (5) years probation for her possession with intent to deliver conviction. The court also sentenced appellee to serve one (1) year on probation for her simple possession conviction. When resentencing appellee, the lower court reasoned that it should be permitted “to temper justice [with mercy]”, regardless of the mandatory language of the statute. Trial Court Opinion, p. 10. The court also believed that the “unfettered discretion” of the prosecution to compel imposition of the four year mandatory minimum sentence, in the present case, would result in an “arbitrary and capricious” sentence. Trial Court Opinion, p. 8.

The language of the mandatory minimum sentencing statute for drug trafficking, 18 Pa.C.S.A. § 7508, is quite specific and unambiguous and, in pertinent part, reads:

(a) General rule.—Notwithstanding any other provision of this or any other act to the contrary, the following provisions shall apply:
******
(3) A person who is convicted of violating section 13(a)(14) [sic] or (3) of The Controlled Substance, Drug, Devise and Cosmetic Act where the controlled substance is ... [cocaine] ... shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
******
(iii) upon the first conviction when the amount of the substance involved is at least 100 grams: four years in prison and a fine of $25,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity____
******
(c) Mandatory sentencing.—There shall be no authority in any court to impose on an offender to which this section is applicable a lesser sentence than provided for herein or to place the offender on probation, parole, work release or prerelease or to suspend sentence. ...
(d) Appellate review.—If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence in accordance with this section if it finds that the sentence imposed was in violation of the section.
* * * * * *

Instantly, the facts clearly reveal that appellee possessed with the intent to deliver in excess of 100 grams of cocaine. Therefore, it was error for the lower court, for whatever reason, to impose a sentence less than that mandated by § 7508(a)(3)(iii). The language of § 7508 evinces an unequivocal intent by the legislature that persons committing drug offenses be punished according to the minimum sentences set forth therein. Commonwealth v. Brown, 389 Pa.Super. 66, 71, 566 A.2d 619, 621 (1989).

Presently, the sentencing court placed its own assessment of the proper punishment before that of the legislature and, in so doing, clearly committed reversible error. While, in general, sentencing is within the broad discretion of the trial court, 18 Pa.C.S.A. § 7508 does not unconstitutionally infringe upon the sentencing prerogative of the judiciary, as it is the province of the legislature to prescribe punishment for crimes. Cf., Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986) (commenting upon the mandatory sentencing provisions of 42 Pa.C.S.A. § 9712, Sentences for offenses committed with firearms). Accordingly, we vacate appellee’s sentence and remand for resentencing in strict compliance with 18 Pa.C.S.A. § 7508(a)(3)(iii).

Judgment of sentence vacated. Case remanded for imposition of sentence in accordance with 18 Pa.C.S.A. § 7508(a)(3)(iii).

      . 35 Pa.S.A. § 780-113(a)(30).

      . 35 Pa.S.A. § 780-113(a)(16).

      . 35 Pa.S.A. § 780-113(a)(32).

      . We note that the sentence for the possession offense should have been merged into the sentence for possession with intent to deliver. Commonwealth v. Johnston, 348 Pa.Super. 160, 501 A.2d 1119 (1985), affirmed 515 Pa. 454, 530 A.2d 74 (1987). Thus, the lower court imposed an illegal sentence in addition to its other errors.

      . The court’s legal justification for its departure from the mandatory sentence was based on the case of U.S. v. Cheape, 889 F.2d 477 (3rd.Cir.1989) (Appeal of Klinefelter). Therein, the Third Circuit held that under the Federal Sentencing Guidelines, the sentencing court had the discretion to depart from the minimum range of the guidelines where the court finds evidence of coercion which mitigates the offense. Therein, the Third Circuit did not hold that a sentencing court may ignore a statute mandating a minimum sentence for the offense in question. Consequently, reliance on Cheape, supra, was misplaced.

      . We comment further to address the court’s concern that the "unfettered discretion” of the prosecutor to decide whether to proceed under 18 Pa.C.S.A. § 7508 could result in arbitrary and capricious sentences. However, it is clear that the delegation of this type of discretion to the prosecutor is constitutionally permissible and within the traditional powers accorded to prosecutors. Cf., Commonwealth v. Pittman 515 Pa. 272, 528 A.2d 138 (1987) (grant of discretionary authority to prosecutor as whether to invoke provisions of mandatory minimum sentencing provision for use of a firearm in commission of enumerated felony was constitutionally permissible); Bell, supra; Commonwealth v. Wright, 508 Pa. 25, 40 n. 4, 494 A.2d 354, 361 n. 4 (1985). Despite whatever mitigating circumstance may exist, appellee did, in fact, constructively possess in excess of 100 grams of cocaine with the intent to deliver, and, as such, the prosecution was well within its discretion to proceed under the mandatory sentencing statute.
      In addition, the court sentenced appellee to serve her sentence in the Allegheny County Jail’s Female Offenders Program to be followed by five years of probation. The Female Offenders Program is designed to provide alternative housing in the County Jail and supervision for work release. In light of the statutory proscription against probation, parole, work release, prerelease or suspended sentences detailed in 18 Pa.C.S.A. § 7508(c), the legislature clearly intended persons sentenced under § 7508(a)(3)(iii) to serve their sentence in prison, i.e., a state correctional facility. The legislature enacted the mandatory minimum sentencing statute to deter drug traffickers with the imposition of harsh penalties. See Legislative Journal, Senate, February 23, 1988, p. 1784. Thus, we are convinced that sentencing appellant to the Female Offenders Program and probation was also reversible error.


author: BECK, Judge: HESTER, Judge,

text:
    590 A.2d 302
    COMMONWEALTH of Pennsylvania v. Robert L. BRUNDIDGE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 4, 1990.
    Filed April 15, 1991.

      Todd A. Dorsett, Waynesboro, for appellant.
    Gregory Lensbower, Asst. Dist. Atty., Chambersburg, for Com., appellee.
    Before CIRILLO, President Judge, and BECK and HESTER, JJ.
   BECK, Judge:

The issue presented is whether appellant’s constitutional rights were violated when the police conducted a warrant-less search of a jacket that was covered with plastic and hanging in a closet in a motel room one-half hour after check-out time. We conclude that, although the police entry and search of the motel room did not infringe on Fourth Amendment rights, the additional governmental intrusion into appellant’s enclosed personal effects violated his constitutionally safeguarded expectations of privacy. Since we find that the trial court erred in refusing to suppress the evidence uncovered in this unreasonable search, we reverse the judgment of sentence and remand for a new trial.

I.

In reviewing a trial court’s denial of a motion to suppress, we consider the evidence of the prosecution, and so much of the evidence of the defense as, read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Kean, 382 Pa.Super. 587, 590, 556 A.2d 374, 375 (1989); Commonwealth v. Lemanski, 365 Pa.Super. 332, 341-344, 529 A.2d 1085, 1089-90 (1987). Viewed in this light, the facts of this case are as follows.

On August 25, 1987, appellant Robert L. Brundidge registered at the Greencastle Travelodge Motel for one night for a party of two: himself and his companion James Jackson. Appellant listed his home address as Haines City, Florida. Seana Rhodes, the front desk clerk, registered appellant in room 307. Pursuant to motel policy, Rhodes ordinarily informed motel guests that check-out time is twelve noon. There was also a sign displayed at the front desk informing the guests that check-out time is twelve noon.

Several motel employees observed appellant and Jackson together on the evening of August 25. They left the motel at approximately twelve midnight, and did not return that night. The following day, at approximately twelve noon, Dorcas Sheffield, the executive housekeeper, telephoned room 307 pursuant to usual motel procedure, to determine whether the occupants wished to retain the room for a second night. When she received no answer, she entered the room to prepare it for the next guest. She found that the beds had not been slept in the previous night. On one of the beds she found a diagram of the motel floor plan labelled “front desk” with the handwritten name “James Q. Jackson” on it. On a table she found several one-inch square clear plastic bags.

Ms. Sheffield was alarmed by the diagram in particular because only two weeks before, a motel guest had perpetrated an armed robbery of the front desk. She went to the motel manager, Norman Reed, to report what she found in the room. State Trooper Gary Bopp, an undercover narcotics agent, was in the manager’s office at the time investigating an unrelated matter. The manager and Trooper Bopp went with Ms. Sheffield to room 307. Trooper Bopp waited outside while Sheffield and Reed investigated. After Reed determined that no other persons were in the room, he asked Trooper Bopp to enter. At approximately 12:20 p.m., Trooper Bopp entered room 307. He observed in plain view the diagram and the small plastic bags, which he recognized as the kind of bags used for packaging small quantities of controlled substances. He proceeded to search the room. In the only closet, he found a jacket with a protective plastic bag over it. He searched the jacket, and in a pocket, he found a plastic bag inside another plastic bag filled with a white powder which was later determined to be 206.6 grams of pure cocaine. He removed a small sample of the powder for field testing and replaced the bag in the jacket pocket. Field testing erroneously indicated that the substance was methamphetamine. The trooper then telephoned the district attorney’s office regarding the need for a * search warrant, and telephoned police headquarters for assistance.

At 12:45 p.m., appellant and Jackson returned to the motel. Shortly thereafter, appellant registered for a second night. The two were kept under surveillance by state police while Trooper Bopp obtained a search warrant. At approximately 3:00 p.m., appellant and Jackson attempted to exit the motel. State police officers ordered them to halt. Appellant stopped, but Jackson attempted to flee and was shot by an officer. Trooper Bopp returned with search warrants for the motel room and appellant’s and Jackson’s cars. He seized the diagram, plastic bags, and bag of cocaine he previously found. Trooper Paul searched both appellant’s and Jackson’s cars. From Jackson’s car, he seized an empty “Skoal” chewing tobacco can containing a white residue and a razor blade, an unregistered gun, and three rounds of ammunition. He found no incriminating evidence in appellant’s car.

Appellant was arrested and charged with possession of a controlled substance with intent to deliver and conspiracy. After his arrest, and after he was given Miranda warnings, appellant stated to police that the cocaine found in the jacket was not his, but Jackson’s. At the time, police were under the misapprehension that the substance found in the jacket was methamphetamine. He also told police that he knew Jackson was selling drugs in Hagerstown, and that he was providing him with a place to stay and transportation to and from Hagerstown.

Appellant and Jackson were tried separately. Appellant filed a pre-trial motion to suppress the cocaine, which was denied. He was subsequently found guilty of both charges and sentenced to a term of five to ten years imprisonment. Appellant filed a timely notice of appeal from judgment of sentence.

Appellant raises two issues on appeal: (1) whether the admission of the cocaine into evidence violated his constitutional rights; and (2) whether there was sufficient evidence presented at trial to sustain his conviction of both charges. We conclude that appellant’s suppression claim has merit and warrants the grant of a new trial.

II.

In support of his Fourth Amendment claim, appellant argues that he retained a constitutionally protected privacy interest in both the motel room and all its contents even though he concedes that check-out time had passed. In so arguing, appellant correctly focuses on what is clearly, in this context, the fundamental Fourth Amendment concern, i.e., the protection of legitimate privacy interests. We disagree with appellant’s overbroad and unsupported conclusion that, despite the expiration of his rental period in the motel room, his privacy interests in that room warrant continued constitutional protection. On the other hand, the extinguishment of appellant’s privacy interest in the motel room did not deprive him of all Fourth Amendment protection for the concealed contents of his personal effects within that room. Our conclusion is supported by settled constitutional principles and case law.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Over years of evolving Fourth Amendment jurisprudence, a fundamental precept has emerged and that is, “the protection of the Fourth Amendment depends not upon a property right in the invaded place but whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). In order to invoke the protection of the Fourth Amendment, the expectation of privacy which allegedly has been invaded by government action must be “justifiable,” “legitimate” and one which “society is prepared to recognize as ‘reasonable’.” Katz v. United States, 389 U.S. 347, 360-361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (Harlan, J., concurring). The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right. See, e.g., Hudson v. Palmer, 468 U.S. 517, 525-526 n. 7, 104 S.Ct. 3194, 3199-3200 n. 7, 82 L.Ed.2d 393 (1984). Indeed, as Mr. Justice Powell emphasized in his concurring opinion in Rakas, “it is not enough that an individual desired or anticipated that he would be free from governmental intrusion.” Rather, he concluded, “[t]he ultimate question is whether one’s claim to privacy from governmental intrusion is reasonable in light of all the surrounding circumstances.” Rakas v. Illinois, 439 U.S. at 151-152, 99 S.Ct. at 435 (Powell, J., concurring). Finally, it has been noted by the United States Supreme Court that, “[determining whether an expectation of privacy is ‘legitimate’ or ‘reasonable’ necessarily entails a balancing of interests.” Hudson v. Palmer, 468 U.S. at 527, 104 S.Ct. at 3200. Our conclusion in appellant’s case turns upon these general considerations.

A guest in a hotel or motel has an undeniably legitimate expectation of privacy in his room during the period of time for which it is rented. Fourth Amendment protection extends to a hotel room, paid for and occupied, in much the same way as it does to a citizen’s home or office. See Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); see also Commonwealth v. Cooper, 240 Pa.Super. 477, 488-489, 362 A.2d 1041, 1049 (1976), vacated on other grounds, 468 Pa. 390, 363 A.2d 783 (1976), cert. denied, 429 U.S. 1048, 97 S.Ct. 758, 50 L.Ed.2d 763 (1977). The question is whether the same expectation of privacy remains after the rental period has terminated, and assuming it does not, whether the diminished privacy interest extends to all personal property which the renter had secured in his room.

Our research has revealed that the majority of cases confronting this issue hold that, after check-out time, a motel guest cannot claim a legitimate expectation of privacy in the room or in any item in plain view to anyone readying the room for the next occupant. We are persuaded that these cases state the correct position. See, e.g., United States v. Rahme, 813 F.2d 31, 34-35 (2d Cir.1987); United States v. Akin, 562 F.2d 459, 464 (7th Cir.1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978); United States v. Parizo, 514 F.2d 52, 54-55 (2d Cir.1975); United States v. Croft, 429 F.2d 884, 887 (10th Cir.1970); State v. Ahumada, 125 Ariz. 316, 318, 609 P.2d 586, 588 (1980); Sumdum v. State, 612 P.2d 1018 (Alaska 1980). We refuse, however, to extend this reasoning to include all personal and secured property within that room, unless exigent circumstances, abandonment or other convincing circumstances can be shown.

At issue here is the legitimacy of appellant’s expectation of privacy in a room rented on a transient basis for which one night’s rent had been paid and for which the posted check-out time of twelve noon had concededly passed. Our inquiry cannot hinge on whether appellant subjectively desired to retain a privacy interest in the room, as we noted above. Rather we must decide whether, on balance, society is prepared to recognize as legitimate a subjective expectation of privacy in a motel room in which the rental period has ended and the guest’s right to occupancy has consequently lapsed. We conclude that a justifiable expectation of privacy cannot continue in the room under such circumstances.

Inherent in this conclusion is the recognition that motels are a business which depend upon maximizing occupancy by paying guests. Once the rental period paid for has expired (as evidenced by the passing of check-out time), management must be free to enter the room and prepare it for re-rental. A guest’s expectation of privacy in the room must yield to reasonable efforts by management to ready the room for the next paying occupant. Whatever is evident or uncoverable during the normal course of preparing the room for subsequent occupancy cannot justifiably be the subject of Fourth Amendment claims. See United States v. Lee, 700 F.2d 424, 426 (10th Cir.1983) (motel room rented by suspected bank robbers; rental period expired; cash found loose and in a transparent plastic bag secreted under bed held admissible because daily motel housekeeping might reveal such items and privacy past the rental period cannot be expected).

However, although the police entry into the motel room past check-out time raises no cognizable Fourth Amendment claim because appellant no longer had a constitutionally justifiable expectation of privacy in the room, the same cannot be said for the search of the covered jacket’s pockets. The factors which led us to conclude that a motel guest’s right of occupancy and expectation of privacy in the room necessarily must terminate at check-out time, do not apply to the contents of discrete and concealed personal effects. For while motel personnel must have access to and use of the motel room after the rental period expires, and such should be the reasonable expectation of motel guests, this need does not extend to items of personal luggage or other containers which do not reveal the nature of their contents.

It has long been recognized that what a person “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. at 351-352, 88 S.Ct. at 511. As a result, the Supreme Court, in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) held that although luggage may be outside the home, an individual retained a legitimate expectation that its contents would remain private. The Court was guided by the concept that luggage is intended as a repository of personal effects, in which there is a great privacy interest. This principle was reaffirmed in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), which involved the search of a suitcase removed from a taxicab. In both Chadwick and Sanders, the Supreme Court refused to extend appellants’ diminished expectations of privacy in automobiles to the contents of closed containers carried therein. Similarly, here we decline to extend appellant’s lack of privacy interests in the motel room to the personal effects he had secured there.

The factors which weighed in favor of a motel guest’s relinquishment of privacy interest in the room do not similarly pertain to his enclosed personal effects. There is no economic or other justification on the part of motel management to examine the contents of it’s guests’ closed personal possessions, particularly when so short a time had passed since check-out time. Neither motel personnel nor police had reason to conclude that appellant and his companion were not returning for their belongings and had forsaken them in the room. While guests could reasonably expect that their possessions would be removed from a room after check-out time in order to make the room available to another, this expectation would not include wholesale scrutiny of enclosed personal items by motel personnel or police.

In our view this expectation is the very essence of Fourth Amendment protection. Without it, any traveler delayed for unavoidable or innocuous reasons in returning to his hotel room could never feel secure in the knowledge that his private effects were free from government invasion. We think that the impact of allowing such a search would shake the fundamental “sense of security that is the true concern of the Fourth Amendment’s protection of privacy.” United States v. White, 401 U.S. 745, 787 n. 24, 91 S.Ct. 1122, 1144 n. 24, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting). Therefore, we hold that motel guests retain a protected privacy interest in the contents of concealed or closed personal effects kept in a room even after check-out has passed.

Further we conclude that, under the circumstances of this case, the pocket of the covered jacket inside the room’s closet was the type of repository of personal effects to which a legitimate expectation of privacy can and did extend. The covering gave the jacket an additional indicia of a private area, shielded from public access. The Supreme Court has stressed that whether a citizen’s enclosed possessions are entitled to Fourth Amendment protection is not dependent on the type of hardware which secures them or the size and sophistication of the container in which they are stored. See Smith v. Ohio, 494 U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464, 467 (1990) (the Fourth Amendment protects alike the “ ‘traveler who carries a toothbrush and a few articles of clothing in a paper bag’ and ‘the sophisticated executive with the locked attache case.’ ” quoting United States v. Ross, 456 U.S. 798, 822, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982); Arkansas v. Sanders, 442 U.S. at 762 n. 9, 99 S.Ct. at 2592 n. 9.

Given the fact that appellant retained a legitimate privacy interest in the enclosed jacket and the items contained therein, the search of the jacket should have been accomplished pursuant to judicial warrant issued upon probable cause. The Commonwealth attempts to escape the operation of the Fourth Amendment by suggesting various theories to put this search out of its reach. We find none of these persuasive. For instance, no exigent circumstances existed to justify the warrantless search. The motel manager searched the room and determined that it was unoccupied before the police entered. There was no danger that evidence would be destroyed or removed, nor was there a danger to police or motel personnel. The evidence was not in “plain view,” as it was concealed in the jacket and the officer was unaware of it until he performed the search.

Moreover, Trooper Bopp’s actions do not fall within the good faith exception to the application of the exclusionary rule. In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court held that the Fourth Amendment exclusionary rule may not apply where evidence is seized in reasonable, good faith reliance on a facially valid but somehow defective search warrant. Here, the illegality at issue was not police reliance on a defective search warrant. No warrant was obtained until after the illegal intrusion occurred. The good faith exception is not applicable here.

Finally, we briefly consider whether the motel personnel had authority to consent to a police search of concealed personal effects in the motel room. We conclude that no such authority existed. As our discussion above emphasizes, appellant retained a reasonable expectation of privacy in the jacket secured in the motel room. We know of no theory which would give motel management dominion over the contents of discrete and personal items of luggage and the like of their motel guests. Third party consent search theory is grounded on the premise that the third party possessed common authority over the premises or effects to be searched so as to permit the conclusion that the person asserting the right assumed the risk that the third party would allow the search. See United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). However, no such conclusion can be reached with respect to enclosed personal effects such as luggage found in a motel room shortly after check-out time which clearly have not been either abandoned or left open for public access. In such cases “manifestations of retained expectations of privacy by the absent person could [not] be stronger, [n]or the indications of assumed risks of third person permission to inspect, lower.” United States v. Block, 590 F.2d 535, 541 (4th Cir.1978) (mother’s authority to consent to search of son’s room did not extend to a search of a locked footlocker in room); see also United States v. Padron, 657 F.Supp. 840 (D.Del.1987), aff'd without op. sub nom., United States v. Rubio, 857 F.2d 1466 (3d Cir.1988), cert. denied, 488 U.S. 974, 109 S.Ct. 512, 102 L.Ed.2d 547 (1988) (authority of driver to consent to search of car does not extend to passenger’s luggage).

Based on the foregoing, we conclude that the trial court erred in failing to suppress the cocaine seized from the jacket pocket. Accordingly, we reverse.

Judgment of sentence reversed and the case is remanded for a new trial.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting.

I respectfully Dissent.

      . 35 Pa.Stat.Ann. § 780-113 (Purdon 1977).

      . 18 Pa.Cons.Stat.Ann. § 903 (Purdon 1983).

      . Appellant’s challenge to the sufficiency of the evidence has no merit. The test for sufficiency of the evidence in a criminal case is whether the Commonwealth presented sufficient evidence to prove every element of the offense beyond a reasonable doubt. Commonwealth v. Hughes, 521 Pa. 423, 429-431, 555 A.2d 1264, 1267 (1989). In making the determination this court views the evidence in the light most favorable to the Commonwealth as the verdict winner, and accepts as true all evidence and all reasonable inferences therefrom, which, if believed, could properly support the verdict. Id. In passing upon the sufficiency of the evidence, we consider all evidence actually received at trial, even if that evidence was improperly admitted. Commonwealth v. Cohen, 489 Pa. 167, 177-178, 413 A.2d 1066, 1072 (1980), cert. denied 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980); Com

        monwealth v. Pankraz, 382 Pa.Super. 116, 119-120, 554 A.2d 974, 976 (1989), appeal denied, 522 Pa. 618, 563 A.2d 887 (1989).
      In order to uphold appellant’s conviction for possession of a controlled substance with intent to deliver, the Commonwealth must have come forward with evidence sufficient to prove that appellant possessed a controlled substance, and did so with the intent to deliver it. Commonwealth v. Cardona, 316 Pa.Super. 381, 388-389, 463 A.2d 11, 15 (1983). The intent to deliver may be inferred from the amount of cocaine in this case. Commonwealth v. Schilling, 312 Pa.Super. 43, 50-51, 458 A.2d 226, 230 (1983). We are further satisfied that the Commonwealth presented sufficient evidence of possession under Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). See also Commonwealth v. Carroll, 510 Pa. 299, 507 A.2d 819 (1986); and Commonwealth v. Mudrick, 510 Pa. 305, 507 A.2d 1212 (1986).
      A conviction for criminal conspiracy may stand provided the evidence shows beyond a reasonable doubt that appellant and his conspirator (1) entered into an agreement to do an unlawful act, (2) with a shared criminal intent and (3) an overt act was done in furtherance of the conspiracy. 18 Pa.Cons.Stat.Ann. § 903 (Purdon 1983). From the totality of the circumstances, especially from appellant’s own statements to the police to the effect that he was driving Jackson to and from Hagerstown so that Jackson could sell drugs, the jury could reasonably infer that an agreement existed between appellant and Jackson to perform an unlawful act, and that appellant and Jackson shared a criminal intent to possess and deliver the cocaine. We have already determined that from the evidence, the jury could find that appellant possessed a controlled substance with intent to deliver. This satisfies the requirement of an overt act. See Commonwealth v. Lanager, 360 Pa.Super. 578, 585-587, 521 A.2d 53, 57 (1987). We therefore find sufficient evidence of conspiracy beyond a reasonable doubt.

      . "It is now well recognized that, in order to challenge successfully a warrantless search, the challenger must have a legitimate expectation of privacy in the area or property searched....” Commonwealth v. Cihylik, 337 Pa.Super. 221, 226, 486 A.2d 987, 990 (1985).

      . This is not to say that intentional abandonment, and therefore a relinquishment of privacy interests, of rented premises can never be found even if the rental period has not expired. Courts have found premises abandoned and, consequently, privacy rights forfeited although time still remained on the rental arrangement or check-out time had not elapsed. See United States v. Hunter, 647 F.2d 566 (5th Cir.1981) (motel room held to be abandoned before check out time when appellant had paid bill in full and left room with key locked inside); United States v. Akin, 562 F.2d 459 (7th Cir.1977) (hotel room abandoned when door was left wide open and no luggage remained in room).

      . As the Supreme Court has cautioned:
      Not all containers and packages found by the police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to ‘plain view’, thereby obviating the need for a warrant.

        Arkansas v. Sanders, 442 U.S. 753, 764 n. 13, 99 S.Ct. 2586, 2593 n. 13, 61 L.Ed.2d 235 (1979) (citation omitted).
      Clearly, these exceptions do not apply to the enclosed jacket pocket at issue in the instant case.

      . The Commonwealth argues that the items left in appellant’s motel room were “abandoned” and therefore outside the protection of the Fourth Amendment. We disagree. Under the circumstances of this case, where only a relatively short period of time had elapsed since check-out time, appellant’s car remained parked at the motel, the room remained locked, and appellant returned shortly thereafter to register for a second night, it cannot be said that appellant manifested an intent to discard or relinquish his interest in the property left in his room. See Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1219-20 (1976); Commonwealth v. Perdue, 387 Pa.Super. 473, 481-483, 564 A.2d 489, 493 (1989), appeal denied, 524 Pa. 627, 574 A.2d 68 (1990).

      . We stress that our holding does not mean that a court can never find that a motel guest has relinquished privacy interests in both the motel room and in belongings left therein. In another case, additional facts may lead a court reasonably to conclude that a motel guest has relinquished all legitimate expectations of privacy in both the room and articles left in it. Today, we hold simply that a citizen’s privacy interest in enclosed personal possessions inside a motel room do not terminate automatically at check-out time.

      . The record here demonstrates that there was no reasonable basis for the police to believe that motel management had authority to consent to the search of appellant’s enclosed personal effects. Under the circumstances of the instant case, the police were not entitled to assume that the manager’s authority over the premises extended to the guest’s concealed, personal effects. Therefore, those cases which permit police to rely on ‘‘apparent authority" for consent to search are distinguishable. See Illinois v. Rodriguez, 497 U.S. -, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).