author: TAMILIA, Judge:

text:
    591 A.2d 1060
    Judith MARSHALL, Appellant, v. John MARSHALL. Judith MARSHALL v. John MARSHALL, Appellant.
    Superior Court of Pennsylvania.
    Argued January 8, 1991.
    Filed April 26, 1991.
    Reargument Denied July 2, 1991.

      Joanne R. Wilder, Pittsburgh, for appellant (at 762) and appellee (at 934).
    Mary K. McDonald, Pittsburgh, for appellant (at 934) and appellee (at 762).
    Before TAMILIA, POPOVICH and JOHNSON, JJ.
   TAMILIA, Judge:

The parties, John and Judy Marshall, take cross-appeals from the May 4, 1990 Order dismissing husband’s exceptions and wife’s cross-exceptions and finalizing the February 20, 1990 Order directing husband to pay $1,550 per month for the support of wife and one child.

The parties were married on December 27, 1969 and separated on October 8, 1988, when husband left the marital residence. There is no divorce action pending. Subsequent to the parties’ separation, husband voluntarily paid $1,300 per month to wife and $100 per month to the parties’ then 12-year old daughter. Husband also provided free long distance telephone service through his employer. When husband ceased making the voluntary payments, wife instituted a support action on or about August 25, 1989. At the time of the hearing, both parties were employed full-time, wife as a business teacher with the Monroeville Business School and husband as a manager with Westinghouse Corporation and a commander in the Naval Reserves. Wife’s net income was $1,000 per month and husband’s net income was in excess of $3,800 per month. The hearing officer’s recommendations were adopted by the court who entered the February 20, 1990 temporary Order of support. The parties’ exceptions to this Order were dismissed and the Order became final on May 4,1990 and is the subject of this appeal.

Wife avers three errors: 1) ordering a support amount inconsistent with the reasonable needs of wife and daughter; 2) failing to consider husband’s financial ability to provide more support than ordered, and 3) failing to consider husband makes no direct expenditures for the child.

Husband argues the court abused its discretion 1) by entering an Order in excess of the guidelines where wife did not meet her burden of proof; 2) by basing its deviation from the guidelines on wife’s alleged reasonable expenses and 3) by basing its Order on husband’s ability to accumulate savings.

Our standard of review for awards of child support and spousal support is abuse of discretion. See Lesko v. Lesko, 392 Pa.Super. 240, 572 A.2d 780 (1990); Goodman v. Goodman, 375 Pa.Super. 504, 544 A.2d 1033 (1988). Spousal support assures a reasonable living allowance to the party requiring support. Laughlin v. Laughlin, 372 Pa.Super. 24, 538 A.2d 927 (1988). The Order of support must be fair and not confiscatory and must allow for the reasonable living expenses of the payor. Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975); Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983). Our careful review of the record reveals there was no abuse of discretion by the trial court.

In determining the amount of support to be paid by husband, the court considered the reasonable needs and expenses of all parties concerned. Wife’s budget indicated a need for $3,322.02 a month. At the hearing, wife offered testimony as to her household expenses, including needed home repairs, the daughter’s educational expenses and the wife’s and daughter’s entertainment allowance. Wife testified her father, who had purchased most of daughter Meghan’s clothing, had recently passed away. Wife has a Bachelor of Science degree in education and went back to teaching part-time in 1986 after a lengthy hiatus during which time she was a housewife and mother. Husband testified as to his income from Westinghouse and the Naval Reserve as well as his household and entertainment expenses, medical bills and savings.

Applying the guidelines with wife’s net at $1,000 and husband’s net of $3,820, the court arrived at the amount of $1,212. Based on the reasonable needs and living standard of the parties, the court exceeded the guidelines and entered an Order for $1,550 per month, or $338 more than suggested by the guidelines. The award is not confiscatory and the record reveals special needs of the parties’ child related to her age and the parties’ standard of living which had been met previously such as cello and dance lessons and swimming and racquet club memberships. The comments to the guidelines under the section entitled “Allowable Deviations” provide that a court’s failure to deviate from the guidelines when the parties’ special needs and special circumstances dictate otherwise would constitute a misapplication of the guidelines. Pa.R.C.P. 1910.16-1. Explanatory Comment—1989. B.3. The facts here warrant a deviation favoring the payee spouse.

Despite the statistical verification of the guidelines by studies, the key ingredients for payment of support are the timeless principles established by experience and formalized in case law. They are the needs of the child and/or spouse and the ability of the obligor to pay. Net income has always been the criterion upon which ability to pay has founded. The guidelines appear to be an attempt to formalize these concepts, as was Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).

Net income, however, is not calculated in a vacuum. While the guidelines and the statute require net income to be the base upon which ability to pay is calculated, an individual evaluation of the income and proper deductions from gross income must be made to establish net income for support purposes. See Pa.R.C.P. 1910.16-5(b).

The statute and guidelines provide two points upon which rest the calculation of support, whether by guidelines or the formula. These are needs of the child or spouse and ability to pay. No two-legged stool can stand and, therefore, the third leg of a viable system must be consideration of the characteristics of the individual family which would otherwise make the guidelines unworkable. The enabling statute provided for this and, as mandated, is incorporated in the guidelines. By statute, 23 Pa.C.S.A. § 4322(b), application of the guidelines is subject to a rebuttable presumption permitting deviation from the guidelines where evidence, which would cause an injustice or make the guideline amount inappropriate, is presented. Deviations of ten per cent need not be explained by the trial judge or hearing officer under Pa.R.C.P. 1910.16-4, otherwise there must be a specific finding on the record or in writing that application of the guidelines would be unjust or inappropriate.

Wife alleges the court erred in failing to make an Order consistent with the reasonable needs of herself and child. In her brief, she alleges the court failed to consider Melzer in making this disposition. Appellee husband responds that during trial wife failed to request a Melzer analysis, and further, Melzer applies to child support only. Even if Melzer applies, husband maintains the guidelines are not incompatible with Melzer and are, in fact, a natural development of Melzer. This brings us to the point where we are required to consider whether Melzer must be applied separately or in conjunction with the guidelines or has been repealed by the statutory provisions, 23 Pa.C.S.A. § 4322, and whether the guidelines supersede and, in effect, nullify Melzer. These questions present the forum for an interesting discussion on the power of the legislation to nullify case law and the weight to be given guidelines promulgated by legislatively created commissions, as is the case with the Sentencing Commission or rules promulgated by committees created by the Supreme Court. Fortunately, we have had considerable experience with guidelines in the criminal context with the implementation of the Sentencing Guidelines. Certain clear principles emanate from these considerations.

To begin with, guidelines do not have the force of law and are not mandatory impositions on judicial discretion. Judicial discretion was not and cannot be abrogated by guidelines although it can, in specific instances, be restricted by statutory provisions such as mandatory sentences. The statute which created the guidelines provides a procedural means for formalizing long standing principles for determining family support and, in effect, attempts to standardize the amount of support provided in similar situations, which is precisely what the sentencing guidelines attempt to do in criminal sentences. In a sentencing case, if the guidelines are ignored or if they are misapplied, the case may be remanded for resentencing. However, and this is crucial, if the guidelines were not specifically referred to, yet the trial court reviewed the record and all matters which are relevant to sentencing under the Sentencing Code, particularly the presentence investigation, the sentence will stand unless it is illegal because it is outside the sentence imposable by legislation. The discretion of the trial court may not be restricted simply because of the existence of guidelines. See Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988).

Turning to the support guidelines, the Domestic Relations Committee recognized the limitations of guidelines by stating:

The support guidelines are a starting point only. They must be applied taking into consideration the special needs and obligations of the parties. The hearing officer, permanent hearing officer or the court must consider all relevant factors, including the following:
(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(4) ages of the children;
(5) assets of the parties;
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their children; and
(8) other relevant and appropriate factors.

Pa.R.C.P. 1910.16-5(a) (emphasis added).

The check list, which is not exclusive, details those factors which always have been the underlying considerations for calculating a support Order. Similarly, Rule 1910.-16-5(b) provides the basis upon which the calculation of monthly net income is based. Again, nothing new is presented here that has not long been established by case law. The belief by some that the guidelines supersede prior case law, including Melzer, is untenable. To do so, they must be mandatory and although admittedly they have been constructed in a fashion to make their application almost automatic, the concept of mandatory guidelines is oxymoronic as the guidelines themselves provide they are a starting point. As they are constructed, discretion remains in weighing the evidence presented and making determinations as to when considerations outside the guidelines must apply. The theoretical base for the guidelines is the Income Shares Model developed by the Child Support Guidelines Project of the National Center for State Courts. (See Explanatory Comment 1989 Rule 1910.16-1.) That model is predicated on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together. Even stating the theory brings to mind the difficulty of applying guidelines when you start with a single parent family (multiple fathers), working and non-working parents or multiple family relationships occasioned by divorce and remarriage. Since the model does not fit every situation faced by a domestic relations office, it is futile to attempt to impose guidelines in those cases, not to mention creating practically an automatic ground for review. Very few families have the distributable resources after separation that are jointly available to them when together. Attempting to provide the child with the same proportion of income after separation as he would have received before separation is workable only if the consequent increases in expenditures and decrease in amounts available for support are taken into consideration, rather than relying only on net income. An overriding principle, regardless of guideline provisions, is that support Orders may not be confiscatory which would frequently be the case if judicial discretion to go outside the guidelines was not permitted.

The guidelines acknowledge that in some instances they do not apply, particularly where the joint spousal income amount is more than $8,000 (Pa.R.C.P. 1910.16-5(d)). These cases require the support to be calculated by the formula provided by Rule 1910.16-3, Support Guidelines. Formula. Either the formula or the guidelines provided by the rules may be used to calculate support. Since the guidelines have provided alternate means of establishing a support Order, does this mean that no other method is available? As discussed above, the guidelines draw their validity from long-established principles of support law. The guidelines are a starting point and do not negate the discretion of the trial judge in their interpretation and application of the guidelines. Neither the trial court nor this Court can ignore the guidelines. However, if a trial judge or hearing officer, with full knowledge of the guidelines, applies case law and properly weighs the applicable considerations to determine the needs of the child and/or spouse, the ability of the obligor to pay considering calculation of net income and related variables which allowably reduce net income or increase need, then failure to use the guidelines or guideline formula will not be a basis for reversal.

In that context, while legislation extended support considerations to statewide guidelines, nothing in the legislation or the guidelines leads to the conclusion that Melzer was nullified, or judicial discretion was lessened. The judge has not been reduced to a rubber stamp nor have the guidelines been elevated to the point that they are mandatory. It is not inconceivable that in the foreseeable near future the guidelines will be inserted into a statewide computer system and that imposition of the guideline amounts will occur with the flick of a finger on a computer keyboard. With full recognition of the overwhelming burden on domestic relations offices and staff and on hearing officers and judges and the need to expedite proceedings, guidelines should be the means of facilitating the proceeding and not the end in themselves. Under these circumstances, the routine case will be relegated to automatic disposition with true judicial review being limited to those cases where influence and extensive assets are involved. Thus it becomes clear that if a guideline is misapplied, on review the matter will be remanded for reconsideration.

Secondly, if a reasonable support Order is decreed using the Melzer formula as opposed to the guidelines, it will be affirmed. The mandatory application of Melzer is no more required than the application of the guidelines but both must meet the test of reasonableness. To address the specific issue in this case as to the Melzer formula, as acknowledged by husband, the use of Melzer would not bring about a substantially different result. We, therefore, cannot say that failure to apply Melzer was error. As this Court said in Coffey v. Coffey, 394 Pa.Super. 194, 575 A.2d 587 (1990):

Finally, as appellant points out, application of neither the formula in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), nor the Montgomery County Child Support Guidelines is evident from the undifferentiated order.

This omission alone would be sufficient for reversal. Id., 394 Pa.Superior Ct. at 203, 575 A.2d at 591, citing Shutter v. Reilly, 372 Pa.Super. 251, 539 A.2d 424 (1988). In Shutter, this Court held the Melzer formula must be applied in conjunction with the guidelines. In interpreting Melzer, we have adhered to a middle course in that the Supreme Court has eschewed a strict mechanical formula and endorsed a flexible approach in these areas. Melzer, 505 Pa. at 477-78, 480 A.2d at 999 (Flaherty and Hutchinson, JJ., concurring). While concurring and dissenting in Shutter, the author of this Opinion would not object to a guideline determination resulting in a final Order that did not conflict with a Melzer Order.

We cannot nullify the line of cases which have held that the Melzer formula is the underlying basis upon which a court Order must be founded, DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987), and that the calculation of that formula must appear of record. Ryan v. DeLong, 371 Pa.Super. 248, 538 A.2d 1 (1987); Marshall v. Ross, 373 Pa.Super. 235, 540 A.2d 954 (1988). These cases focus on the fact that guidelines, whether the ones adopted here or the ones based on a cost sharing approach, do not rely on a precise specification of the minimal amount necessary to support the child, but instead, set an idealized figure based on the income of the parents. See O’Donnell, Smith and Smith: “No Magic Formula for Determining Child Support Payments of the Non-Custodial Parent,” 18 Will.L.Rev. 356.67 (1982).

Since this Court, as seen above, takes divergent approaches in this matter, it is necessary to view the matter so as to accommodate both views. This is accomplished by finding that neither Melzer nor the guidelines can be ignored. When the guidelines are utilized, objection is made and it is factually established they fail to produce a result which is within reasonable range of what Melzer would have produced, then the guidelines will not prevail. If Melzer is properly utilized, it is unlikely that the guidelines could be of greater validity as being less specific and detailed. If the guidelines are used and no attempt is made to weigh the result against Melzer at trial or upon review, then it is presumed the issue is waived and the guideline amount will be tested against the internal standard or the formula approved by the guidelines. This comports with the ultimate resolution of the Supreme Court and this Court in application of sentencing guidelines against the Sentencing Code, case law and judicial discretion. Melzer is not to be mechanically applied nor is it superseded by the support guidelines. Rather, it becomes a standard against which the guideline application in a particular case can be tested. This does not mean that the court must run a Melzer formula and a guideline application in every case. Rather, it means the court may apply the guidelines, but if one of the parties proposes a Melzer calculation that seriously conflicts with the guidelines, the court must be able to explain the difference. Melzer and the guidelines remain viable. See Lesko, supra. It also means that if the court utilized neither the guidelines nor the Melzer formula, and the resulting support Order does not come within a reasonable degree of conformity with a Melzer calculation, it will be reversed and remanded.

In Racciato v. Racciato, 398 Pa.Super. 307, 574 A.2d 625 (1990), this Court (Tamilia, J., dissenting) reversed and remanded because the trial court did not calculate the Melzer formula on the record. This author dissented because the trial court, in his memorandum, established that the Melzer formula need not be mechanically applied where the court believes a party is guilty of deception. See Olson v. Olson, 384 Pa.Super. 224, 558 A.2d 93 (1989). While recognizing the support guidelines, which were not applied in that case, the majority in Racciato suggested that the trial court, upon remand, should harmonize these guidelines (Pa.R.C.P. 1910.16-1 et seq.) with Melzer to create an appropriate award. In our review, we have found no case which holds unequivocally that Melzer is superseded by the guidelines or that Melzer may be ignored.

It is our conclusion, therefore, that the court could apply its discretion in its application of the guidelines, and since the result would not be significantly different from that which would have been achieved by applying the Melzer formula, the award must stand.

The fact that husband may have the financial wherewithal to pay more support than the court ordered he pay does not mean he is legally obligated to do so. The function of the court in a support proceeding is not to punish the husband but to fix an amount which is reasonable and proper for comfortable support and maintenance of the spouse in need. Lutz v. Lutz, 298 Pa.Super. 473, 444 A.2d 1281 (1982). This Court finds the court did not penalize husband for his ability to save but rather noted and properly considered the savings as part of obligor’s entire financial picture. In setting an award of $1,550, the court properly balanced the financial needs of the parties as well as their financial capacities. As quoted in the trial court’s Opinion at pages 5 and 6:

A party will not be rewarded for making unnecessary expenditures for his or her own benefit by having his or her support obligation reduced. Neither will a party be penalized for living frugally by receiving less support. In most cases, the parties’ living expenses are not relevant in determining that party’s support obligations because a support obligation is not based upon the amount of money the parties are actually spending on themselves and their children. Rather, as the statute requires, the obligation is based upon the reasonable needs of a dependent spouse or child and the reasonable ability of the obligor to pay.
For example, in setting the amount of a child support obligation, it should be of no concern to the court that one obligor chooses to live in a one-room apartment and rely solely on public transportation and that another obligor, making the same salary chooses to live in a $600 per month five-room apartment and drive a new car. Both are obligated to give priority to the needs of their children. What they choose to do with their remaining income is not relevant to a support claim.

Pa.R.C.P. 1910.16-1, Explanatory Comment 1989, B. 1.

Wife also alleges the court erred by failing to consider the lack of any direct expenditures by husband for the parties’ child when the guidelines specifically contemplate some direct expenditures by the obligor. This argument is without merit. The direct contributions of noncustodial parents contemplated by the guidelines are during the times the non-custodial parent has “contact, including vacation time, with his or her children,” and that is when it is anticipated that “he or she makes direct expenditures on behalf of the children.” (Slip Op., Baldwin, J., 7/2/90, p. 6.)

For the reasons set forth herein we find there to have been no abuse of discretion by the trial court and that its award of $1,550 per month spousal and child support to be appropriate under the circumstances.

Order affirmed.

POPOVICH and JOHNSON, JJ., concur in the result.

      . There are also instances where the guidelines apply at the upper limit of $8,000 but the support grids do not. See examples in Pa. R.C.P. 1910.16-5(d).


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    591 A.2d 1067
    COMMONWEALTH of Pennsylvania, Appellant, v. George WETTON, Appellee.
    Superior Court of Pennsylvania.
    Argued March 20, 1991.
    Filed May 22, 1991.

      Andrea McKenna, Deputy Atty. Gen., Harrisburg, for Com., appellant.
    Thomas C. Carroll, Philadelphia, for appellee.
    Before CIRILLO, OLSZEWSKI, and CERCONE, JJ.
   OLSZEWSKI, Judge:

The Commonwealth appeals the grant of a pretrial motion dismissing corrupt organization charges brought against George Wetton pursuant to 18 Pa.C.S.A. § 911(b)(3), (4). The Court of Common Pleas of Bucks County, Judge Edward G. Biester, Jr. presiding, granted Wetton’s motion based upon 18 Pa.C.S.A. § 111, holding that Wetton’s previous conspiracy conviction in federal court based upon the same conduct which was the basis of the Commonwealth’s charges, as well as the jury’s inability to reach a verdict on a continuing criminal enterprise charge in the federal court, created a double jeopardy bar under § 111.

The Commonwealth’s appeal raises the following issues for our consideration. Is the prosecution attempted by the Commonwealth based on the same conduct by Wetton which was the subject of the federal prosecution? If so, does each of the separate prosecutions require proof of a fact not required by the other, and is the state statute designed to prevent a substantially different harm than the federal statutes? Having examined the parties arguments, we hold that § 111 does bar the § 911(b)(4) corrupt organization conspiracy charge; however, it does not bar the § 911(b)(3) substantive corrupt organization charge. We therefore reverse the trial court’s order on the substantive charge only.

The procedural and factual history of this case may be summarized as follows: Wetton was convicted in July 22, 1987, of conspiracy to violate federal drug trafficking laws under 21 U.S.C.A. § 846. In the same proceeding, Wetton pled guilty to two counts of distributing methamphetamine under 21 U.S.C.A. § 841(a)(1). The federal indictment alleged that Wetton conspired with Kenneth Schwartz, Paul Heriegel, Russel Cummings, James Kirby, Nancy Kelly, Darlene Wetton, Donald Johnstone, and other persons unknown to distribute methamphetamine. The conspiracy was alleged to have occurred from January 1985 through December 1986. The jury was unable to reach any verdict on the charge of carrying on a continuing criminal enterprise (CCE), and a mistrial was declared. Subsequently, the United States Attorney sought and obtained leave to dismiss the CCE charge.

On June 30, 1989, the Sixth Statewide Investigating Grand Jury handed down a presentment recommending that charges be brought against a number of persons, including Wetton, under the corrupt organization statute, 18 Pa. C.S.A. § 911. The grand jury found that Wetton had engaged in a conspiracy to distribute, and had distributed, methamphetamine and phenyl-2-propanone (P2P) from early 1986 through February 1987. Roy Stocker, Albert Pontani, William Stearn, George Tucker, Kenneth Schwartz, Michael Caputo, Terry Leas, John Spadaccino, Barry Saltzburg, and Robert Kallaur were named as other members of the corrupt organization. Pursuant to the grand jury presentment, the Attorney General’s Office charged Wetton with one substantive and one conspiracy violation of the corrupt organizations statute; 18 Pa.C.S.A. § 911(b)(3), (4).

During the hearing of the pretrial motion for dismissal filed by Wetton, the Commonwealth stipulated that all of the predicate acts enumerated in the corrupt organizations information had been evidence of Wetton’s federal drug conspiracy charge. The trial court granted Wetton’s motion for dismissal, holding that the “charges in the State Case are identical to the scope of his conspiracy in the Federal case” (trial court opinion at 7), creating a double jeopardy bar to the Commonwealth’s prosecution under 18 Pa.C.S.A. § 111. This timely appeal followed.

Separate prosecutions of conduct which constitutes an offense or offenses within the concurrent jurisdiction of this Commonwealth and the federal government, or this Commonwealth and the government of a sister state, are governed by 18 Pa.C.S.A. § 111. The double jeopardy bar imposed by .§ Ill allows two alternative paths via which a subsequent prosecution can proceed. First, if the Common-" wealth can prove that the subsequent prosecution is based upon conduct different from that which gave rise to a prior prosecution by the federal or sister state authorities, § 111 does not bar the prosecution. Commonwealth v. Abbott, 319 Pa.Super. 479, 487, 466 A.2d 644, 649 (1983). Alternatively, if the Commonwealth’s prosecution is based upon the same conduct as the prior prosecution, § 111 will not bar the subsequent action if each of the prosecutions require proof of a fact not required by the other and the Pennsylvania statute targets a substantially different harm or evil from that addressed by the other statute. Id. The Commonwealth must prove both elements of this second alternative to prevent § 111 from barring the subsequent prosecution. Id.

A pretrial motion to dismiss a criminal prosecution based upon a double jeopardy claim imposes certain procedural burdens upon the Commonwealth. “[Wjhen a defendant raises a non-frivolous prima facie claim that a prosecution may be barred under 18 Pa.C.S.A. § 111, the prosecution bears a burden to prove by a preponderance of the evidence either that the ‘same conduct’ is not involved, or that a statutory exception to the statutory bar on reprosecution applies.” Commonwealth v. Savage, 388 Pa.Super. 561, 584, 566 A.2d 272, 284 (1989) (emphasis in original). In the case sub judice, the Commonwealth conceded that the same conduct which led to Wetton’s federal conviction was the subject of the corrupt organizations charge.

MR. BURFETE: I will represent that all of the predicate acts that are included in the Commonwealth’s Bill of Information are predicate acts evidence of which was raised in the—in their federal charges and was evidence of the conspiracy of which Mr. Wetton was convicted in his federal case. I’m certainly not conceding that it is unnecessary to—and that the Commonwealth can’t prove the other two prongs of the requirement.
THE COURT: I understand that. But you are conceding that no fresh conduct, act, deed or declaration will be presented in this case in the state action.
MR. BURFETE: That’s correct. That is correct.
MR. BURFETE: ... Now, I am not conceding that the subsequent prosecution is based on the same conduct that is [referring to the federal conviction]—as that is a legal definition. I am conceding that it is certainly the same deeds per the stipulation that we entered into here this morning. But then we get to the unless ... that the offense for which the defendant was formerly convicted or acquitted and the offense for which he is subsequently charged, each requires proof of a fact not required by the other. That’s number one. Two, and the law defining each of such offenses is intended to prevent a substantially different harm or evil.

(Id. at 75-76.) The balance of the Commonwealth’s argument addressed the twin elements of the exception to the bar of § 111 to subsequent prosecution for the same conduct: required proof of a fact unnecessary for conviction in the alternate prosecution and the intent of the separate statutes. (Id. at 76-83.) It was the Commonwealth’s burden to prove, by a preponderance of evidence, that different conduct was involved to avoid application of § 111. Savage, supra. The Commonwealth presented no evidence or argument that the same conduct was not involved. Even while attempting to preserve the same conduct issue, the Commonwealth conceded that the same “deeds” were being prosecuted. As this “same conduct” argument was abandoned below, we will not resuscitate it here. Accordingly, the Commonwealth has not met its burden as to the “same conduct” issue under Savage. Thus, our inquiry turns to a determination of whether the Commonwealth met its burden as to proving the statutory exception to the statutory bar.

The inquiry as to whether each offense requires proof of a fact not required by the other offense is an inquiry into the necessary elements of the crimes involved. The second inquiry required is an examination of legislative intent. Both matters are issues of statutory construction. As such, the trial court’s determination presents a question of law, not fact, and is subject to plenary review by this Court.

Initially, Wetton asserts that Commonwealth v. Mascaro, 260 Pa.Super. 420, 394 A.2d 998 (1978), requires dismissal of the corrupt organization charge brought here because the Commonwealth’s interests have been adequately protected by the federal prosecution. We disagree. It is true that the Mascaro Court noted that where a previous federal prosecution has vindicated the Commonwealth’s interests, a second prosecution is improper. Id., 260 Pa.Superior Ct. at 426, 394 A.2d at 1001 (citations omitted). Nonetheless, the Mascaro Court did not merely hold that the Commonwealth’s interest had been vindicated because a previous federal conviction based on the same conduct had occurred. Central to the determination that § 111 barred the subsequent prosecution in Mascaro was the Court’s conclusion that the Federal Mail Fraud and False Statement statutes were intended to prevent substantially the same evil as the Theft by Deception, Deceptive Business Practices, Unsworn Falsifications to Authorities, and Conspiracy state statutes.

Further, the similar government interest analysis referred to in Mascaro is based upon the Pennsylvania Supreme Court’s decision in Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971). Mills employs the “similar government interest test” as an analytical model when applying the dual sovereign exception to the constitutional prohibition against double jeopardy. Id., 447 Pa. at 167-71, 286 A.2d at 640-41. Such similar interest analysis is implicit in the Abbott Court’s formulation of the § 111 inquiries. If the separate statutes are intended to prevent a substantially different harm or evil, than the statutes are meant to protect substantially different government interests. It is not enough to assert that both statutes are intended to prevent crime; therefore, a conviction obtained by one sovereign protects the interests of the sovereign with concurrent jurisdiction. An examination of the specific harm or evil targeted by the statute must be conducted, as the evil to be deterred is one of the pivotal considerations in the Mills interest analysis. Commonwealth v. Grazier, 481 Pa. 622, 630-33, 393 A.2d 335, 339-40 (1978).

The Grazier Court made it clear that it is not enough for the prosecution to show that the offense it wishes to prosecute in a subsequent action is a different offense from the one previously prosecuted. Id., 481 Pa. at 630-33, 393 A.2d at 339-340. The Mascaro Court held this meant that all offenses which are part of the common and continuing scheme arise from the same conduct. Mascaro, supra, 260 Pa.Superior Ct. at 426, 394 A.2d at 1001. Nonetheless, to adopt Wetton’s argument, that the prior prosecution of the same conduct automatically vindicates all the government interests involved, would write the statutory exception out of existence. We reconcile Mascaro and Abbott by holding that if the separate statutes satisfy the substantially different intent test announced in Abbott, subsequent prosecution based upon the separate statute is intended to protect a government interest which has not been vindicated by the prior prosecution.

DRUG CONSPIRACY CONVICTION

We now turn to the Commonwealth’s assertions that it has met the dual prongs of the second Abbott alternative to lift the bar imposed by § 111. Wetton was convicted under the federal drug conspiracy law, which provides as follows:

Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offenses, the commission of which was the object of the attempt or conspiracy.

21 U.S.C.A. § 846. A § 846 conspiracy conviction requires proof that the accused willingly participated in a conspiracy to violate federal drug trafficking laws with the intent to further its illegal purpose; proof of an overt act in furtherance of the conspiracy is not required. United States v. Garcia, 655 F.2d 59, 62 (5th Cir.1981) (citations omitted).

The corrupt organization statute which is the basis of the prosecution at bar here provides, in relevant part:

(3) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.
(4) It shall be unlawful for any person to conspire to violate any of the provisions of ... this subsection.

18 Pa.C.S.A. § 911(b)(3), (4). A violation of § 911(b)(3) requires proof that an enterprise exists, and that an individual is associated or employed by the enterprise and has conducted or participated in the enterprise’s conduct or affairs via two or more acts of racketeering. Commonwealth v. Lavelle, 382 Pa.Super. 356, 362, 555 A.2d 218, 221 (1989). A violation of § 911(b)(4), based upon a conspiracy to violate § 911(b)(3), requires an agreement to violate § 911(b)(3) and an overt act in furtherance of that conspiracy.

It is clear that a conviction under the subsections of the corrupt organizations statute at issue here requires proof of the existence of an enterprise, as well as a pattern of racketeering activity [§ 911(b)(3) ] or a conspiracy to engage in such a pattern [§ 911(b)(4) ]. The existence of the criminal enterprise is immaterial to the federal drug conspiracy charge which was the subject of Wetton’s prior conviction. Therefore, both § 911(b)(3) and (4) require proof of a fact not needed to convict under 21 U.S.C.A. § 846. It is less clear that the drug conspiracy charge required proof of a fact not required under the corrupt organizations statute.

The racketeering acts alleged in the information brought against Wetton consist of conspiring to distribute controlled substances and thirteen instances of possession or delivery of controlled substances in violation of the Controlled Substance, Drug, Device and Cosmetic Act. (35 Pa.S.A. § 780-101 et seq.) To prove the pattern of racketeering activity necessary for the § 911(b)(3) conviction, the Commonwealth must prove that Wetton committed two or more acts which violate the state statute. {See, 18 Pa.C.S.A. § 911(h)(1)(H), (iii), defining racketeering activities.) At his previous trial in federal court, the prosecution was required to prove that the conspiracy entered into by Wetton violated the federal drug trafficking laws (21 U.S.C.A. § 801 et seq.). The Commonwealth will be able to prove a pattern of racketeering activity without proof of Wetton’s participation in the conspiracy. Proof of at least two instances of delivery and possession, of the controlled substances will establish the necessary pattern. Therefore, we hold that Wetton’s previous conviction required proof of a fact not needed to prove the pattern of racketeering activity necessary to support the prosecution of the substantive corrupt organizations count at issue here.

We reach a different conclusion as to the corrupt organizations conspiracy count. The information alleges that Wetton conspired with others to facilitate a corrupt enterprise as well as at least one overt act to further the conspiracy. We note that, had Wetton conspired to commit acts other than drug trafficking, the Commonwealth would need to prove a conspiracy beyond the scope of the drug trafficking conspiracy proven in the federal proceeding. Nonetheless, the Commonwealth has not alleged that the scope of this corrupt organization conspiracy in which Wet-ton participated extends beyond drug trafficking. Rather, the Commonwealth’s allegation is that the drug conspiracy doubled as a conspiracy to further a racketeering enterprise. Whether the conspiracy to violate the drug laws is also a conspiracy to violate the corrupt organizations statute is a legal conclusion to be drawn from the facts, not a separate fact. Therefore, while it is true that the Commonwealth must prove an overt act which was not necessary for the federal prosecution, there is no fact required to prove the federal drug conspiracy which is not necessary to prove the corrupt organization conspiracy charge as brought by the Commonwealth. Each crime must require proof of a fact not necessary to the other Accordingly, we hold that the § 911(b)(4) charge was properly dismissed.

To allow the § 911(b)(3) action to proceed, the Commonwealth must show that the separate statutes address separate evils. Abbott, supra. In enacting the corrupt organizations statute, the legislature was primarily concerned with the insidious effect of organized crime on legitimate businesses. Commonwealth v. Yacoubian, 339 Pa.Super. 413, 419, 489 A.2d 228, 231 (1985) (analyzing legislative intent as demonstrated in 18 Pa.C.S.A. § 911(a)). “[T]he vast amounts of money and power accumulated by organized crime are increasingly used to infiltrate legitimate businesses operating within the Commonwealth.” 18 Pa. C.S.A. § 911(a)(3). The evil targeted by the corrupt organization statute is the covert introduction of organized criminal activity into the law-abiding business community. Such permeation of the business community with criminal elements is accomplished by violence and intimidation. 18 Pa.C.S.A. § 911(a)(3).

The federal conspiracy statute targets illegal agreements to violate the federal drug laws. 21 U.S.C.A. § 846. The federal drug trafficking laws are directed at controlling the illegal use of controlled substances to prevent the detrimental effect of such use. See, 21 U.S.C.A. § 801(2). This activity is totally criminal. It does not directly impact upon legitimate business activity, nor is it an attempt to gain control of that community.

We hold that the Pennsylvania corrupt organizations statute (18 Pa.C.S.A. § 911) targets a substantially different harm or evil than that addressed by the federal drug conspiracy statute (21 U.S.C. § 846). Further, that based upon the informations filed in both proceedings, the substantive corrupt organization count requires proof of a fact not necessary to prove a violation of the federal drug conspiracy statute and vice-a-versa. Accordingly, Wetton’s prosecution under 18 Pa.C.S.A. § 911(b)(3) is not prohibited by 18 Pa.C.S.A. § 111 because of his prior federal drug conspiracy conviction. The informations filed in both proceedings indicate, however, that the federal drug conspiracy conviction did not require proof of any fact not required to prove the corrupt organization conspiracy count. Therefore, § 111 does bar Wetton’s prosecution pursuant to 18 Pa.C.S.A. § 911(b)(4) due to the prior federal conviction.

THE CONTINUING CRIMINAL ENTERPRISE MISTRIAL

The continuing criminal enterprise statute, 21 U.S.C.A. § 848, requires proof that the defendant engaged in an ongoing series of drug trafficking violations in concert or conspiracy with five or more persons; that the accused held a supervisory position in the scheme; and that the accused obtained substantial income from the ongoing activities. United States v. Phillips, 664 F.2d 971, 1013-14 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1981), cert. denied sub. nom. Platshorn v. United States, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982) (construing 21 U.S.C.A. § 848(b)). Despite its commonly used short title, the existence of an ongoing enterprise, as required by the corrupt organizations statute, is not a necessary element of a CCE violation. Id. (comparing federal RICO and CCE). See also, United States v. Grayson, 795 F.2d 278 (3d Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 927, 93 L.Ed.2d 978 (1987), cert. denied sub nom. Robinson v. United States, 481 U.S. 1018, 107 S.Ct. 1899, 95 L.Ed.2d 505 (1987). As stated above, 18 Pa.C.S.A. § 911 requires proof of an ongoing criminal enterprise; however, no minimum number of participants is required, nor is supervision or substantial income. Therefore, each statute requires proof of a fact which is not essential to prove a violation of the other statute.

Wetton argues that, as both the corrupt organization statute and the CCE statute are compound offenses, they target substantially identical harms or evils. We disagree. As stated above, the corrupt organizations statute is directed at the infiltration of the legitimate business community by organized crime via a pattern of racketeering. The CCE statute is meant to prevent the organizing of ongoing narcotics operations by a group of five or more. Phillips, supra. Grayson, supra. The CCE statute targets the organizers of drug trafficking rings, those who create such criminal organizations; the corrupt organization statute attempts to prevent a criminal enterprise from establishing a beachhead in the legitimate business community. While such infiltration could not occur if criminal organizations do not exist, the infiltration is an evil substantially different from the mere existence of a “Kingpin” of an organized ongoing narcotics operations.

Therefore, we hold that 18 Pa.C.S.A. § 911 targets a substantially different evil or harm than 21 U.S.C.A. § 848. Accordingly, assuming arguendo, that the mistrial of the CCE charges at the federal proceeding is equivalent to an acquittal, the Commonwealth has met its burden under Abbott and the CCE mistrial does not bar this subsequent prosecution of the substantive corrupt organization charge under § 911(b)(3).

In summary, when an accused makes out a nonfrivolous claim that 18 Pa.C.S.A. § 111 bars a prosecution, the Commonwealth must show, by a preponderance of the evidence, that either the same conduct is not involved, or that each statute requires proof of a fact not necessary for conviction under the other statute and that the statutes target a substantially different harm or evil. A mere claim that different conduct is being prosecuted will not suffice; if the Commonwealth does not address this issue at the pretrial hearing by evidence and argument, it is waived. Nonetheless, it is not enough for the trial court to decide that the charges in present case are identical to the scope of the charges brought in the prior prosecution. The same conduct inquiry does not dispose of the questions presented. If the Commonwealth proves, as it did here, that, under the informations filed in the separate proceedings, proof of separate facts is required for each conviction and that each statute addresses substantially different evils, § 111 does not bar the subsequent prosecution. We emphasize that the proof of separate facts inquiry must be conducted on a case-by-case basis, comparing the facts used to prove the prior conviction to the facts alleged in the subsequent prosecution.

Order dismissing charges affirmed in part and reversed in part, case remanded for proceedings consistent with the above decision. Jurisdiction relinquished.

      . 21 U.S.C.A. § 846.

      . 21 U.S.C.A. § 848.

      . United States v. Wetton, E.D.Pa., Criminal No. 87-00144-01.

      . Both the Commonwealth and Wetton have argued that federal case law interpreting the interaction of RICO and the federal drug conspiracy statute are applicable to the state corrupt organization statute here. Of course, each cite cases supporting their divergent views on the "same conduct" issue. We will not address this argument as the Commonwealth has waived this issue. Further, it is not readily apparent that the Commonwealth could meet the burden of establishing that the prosecutions are not directed at the same conduct. See, Abbott, supra, 319 Pa.Super. at 492, 466 A.2d at 651 (the term “same conduct” as used in § 111 means “any and all criminal behavior committed in support of a ‘common and continuing scheme.’ ”). Wet-ton’s acts are arguably criminal behavior committed in support of a common, continuing scheme. Thus, were we to address this issue, the proper question would be whether Wetton’s acts constitute the “same conduct” as discussed in Abbott; federal cases would be persuasive only to the extent that their rationale is consistent with the “common and continuing scheme” standard. The Commonwealth cites us to Commonwealth v. Yacoubian, 339 Pa.Super. 413, 419, 489 A.2d 228, 231 (1985), for the proposition that federal cases give guidance to interpretation of the corrupt organizations statute. This is true; however, the issue is whether the conduct at issue is “same conduct” under the test of § 111, not whether conduct is subject to prosecution under the corrupt organizations statute.
      Finally, we note that much of the Commonwealth’s argument on this point is equally applicable to show that different facts must be proven to show a violation of each statute and the two separate statutes target substantially different evils.

      . 18 U.S.C.A. §§ 1001, 1341.

      . 18 Pa.C.S.A. §§ 903, 3922, 4107, 4904.

      . Delivery of controlled substances in violation of Title 35 Pa.C.S.A. is a racketeering activity. See, 18 Pa.C.S.A. § 911(h)(l)(ii), (iii).

      . See, United States v. Kragness, 830 F.2d 842, 863-64 (8th Cir.1987), citing, Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), for the proposition that a court conducting a proof of necessary facts double jeopardy inquiry may not examine the offenses charged in a vacuum to determine that it is possible to convict based upon proof of different facts, but rather must examine the factual allegations presented by the prosecution to determine if conviction under each statute requires proof of a fact not necessary to convict under the other.

      . Nor does it assist the Commonwealth that a corrupt organization conspiracy conviction could be based on a conspiracy which did not involve drug trafficking. It is true that, had the Commonwealth alleged in the information that Wetton conspired to perform racketeering acts which were not drug trafficking violations, proof of such a conspiracy would support a conviction under § 911(a)(4). Nevertheless, we will not allow the Commonwealth to argue in the abstract that such a conspiracy requires proof of a fact unnecessary to the federal drug conspiracy in the absence of any allegation that such a conspiracy existed.

      . “Section 848 is often referred to as the ‘Kingpin’ statute because it is designed to apply to leaders of large scale narcotics operations. Section 848 focuses on organizers of narcotics operations while RICO focuses on all direct and indirect participants in the organized criminal enterprise.” Phillips, supra at 1013, n. 62 (citations omitted).


author: TAMILIA, Judge.

text:
    591 A.2d 1075
    COMMONWEALTH of Pennsylvania v. George PATTERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued April 16, 1991.
    Filed May 29, 1991.

      Paul George, Philadelphia, for appellant.
    Michael Erlich, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before MONTEMURO, BECK and TAMILIA, JJ.
   TAMILIA, Judge.

This is an'appeal from an August 24, 1990 judgment of sentence imposed following jury convictions for possession of a controlled substance, possession with intent to distribute, carrying a firearm without a license and carrying a firearm in a public place. Appellant was sentenced to serve fifteen (15) to thirty (30) months imprisonment on the drug charges and a consecutive twelve (12) to twenty-four (24) month sentence on the firearms charges.

Appellant’s sole argument on appeal is the trial court erred in denying appellant’s motion to suppress physical evidence. Our standard of review on appeal from a suppression ruling is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are in error. Commonwealth v. Morgan, 517 Pa. 93, 534 A.2d 1054 (1987).

On September 3, 1988, Philadelphia Police Officers Marykowitz and Malkowski were assigned to patrol an alley behind the 7500 block of North 20th Street in North Philadelphia. Neighbors residing on the block had lodged numerous complaints concerning illicit drug sales being sold from 7510 North 20th Street. The modus operandi of the drug peddlers was to exchange money for drugs through a small hole in the rear door of the residence facing a driveway which connected the house to a back alley.

In between responding to radio calls and other patrol related assignments, Marykowitz and Malkowski drove their marked police vehicle to the rear driveway of 7510 North 20th Street. Between 2:30 and 4:30 a.m., they observed five people enter the rear driveway of the home and bang on the back door. No one ever answered. In each case, police approached and questioned the individuals. The police became suspicious that criminal activity was afoot when the individuals standing around creating noise in the dark alley entrance of a reputed crack house were unable to offer logical reasons to explain their presence. Fearing for their safety, the officers conducted a pat-down search for weapons. None were found and the individuals were not detained.

Somewhere between 4:30 and 4:55 a.m. police returned to the rear of the 7510 North 20th Street residence to find appellant creating a disturbance by banging on the rear door of this known illicit drug location. Police approached appellant and asked what he was doing. Appellant responded he had come to see someone. Fearing for their safety in the dark early morning hours, the officers frisked appellant. Their suspicions were confirmed, for concealed in appellant’s waistband was a nine millimeter handgun, with ten live rounds of ammunition in the clip. After this discovery, they arrested appellant, searched him and found 54 vials of crack cocaine and $220 in cash.

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

The officer [making a Terry stop] ... must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ [Terry, 392 U.S.,] at 27 [88 S.Ct. 1868, at 1883, 20 L.Ed.2d 889]. The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop. INS v. Delgado, 466 U.S. 210, 217 [104 S.Ct. 1758, 1763, 80 L.Ed.2d 247] (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means “a fair probability that contraband or evidence of a crime will be found,’ [Illinois v. Gates, 462 U.S. 213, at 238 [103 S.Ct. 2317, at 2332, 76 L.Ed.2d 527]] and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause.
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Adams v. Williams [407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)], supra, demonstrates as much. We there assumed that the unverified tip from the known informant might not have been reliable enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Terry stop. 407 U.S., at 147, 92 S.Ct. 1921, at 1923, 32 L.Ed.2d 612. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the “totality of the circumstances—the whole picture,” United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), that must be taken into account when evaluating whether there is reasonable suspicion.

Ala. v. White, — U.S. -,---, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 308-09 (1990).

In the instant matter, police received numerous complaints regarding drug sales conducted from the back door of 7510 North 20th Street. These tips were corroborated by suspicious activity occurring in the alley behind the house the evening of the appellant’s arrest. Within a two hour period in the early morning hours of September 3, 1988, police witnessed five suspicious looking subjects approach and knock on the rear door of the crack house, waiting for someone to answer. When asked, none of the individuals could explain to police for what reason or why they were there. Appellant was the sixth person within two and one-half hours to enter the alley and knock on the crack house door. The combination of the neighbors’ reports and the suspicious heavy foot traffic during the wee hours of the morning in the dark back alley of a suspected crack house is sufficient to justify a stop. See Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960 (1982).

We now turn to the question of whether the police frisk incident to the investigatory stop violated appellant’s fourth amendment rights. To justify a frisk incident to an investigatory stop, the police need to point to specific and articulable facts indicating the person they intend to frisk may be armed and dangerous; otherwise, the talismanic use of the phrase “for our own protection,” a phrase invoked by the officers in this case, becomes meaningless. See also Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986). Here, the stop and frisk took place in the middle of the night in the back alley entrance of a reputed crack house. The police may reasonably believe themselves to be in danger when the hour is late or the location is desolate. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); Commonwealth v. Prengle, 293 Pa.Super. 64, 70 n. 5, 437 A.2d 992, 995 n. 5 (1981); Jackson, supra.

Today we additionally join the growing number of courts who have taken judicial notice of the fact drug dealers are likely to be armed and dangerous. See United States v. Adams, 759 F.2d 1099, 1109 (3d Cir.1985); Commonwealth v. Davidson, 389 Pa.Super. 166, 566 A.2d 897 (1989), alloc. denied, 525 Pa. 624, 578 A.2d 412 (1990) (it is well known that the distribution of narcotics is often punctuated by acts of violence involving various lethal weapons); United States v. Morales, 549 F.Supp. 217 (S.D.N.Y.1982) (to substantial dealers in narcotics, firearms are as much tools of the trade as are most commonly recognized articles of narcotics paraphernalia); United States v. Wiener, 534 F.2d 15 (2d Cir.1976); United States v. Barlin, 686 F.2d 81 (2d Cir.1982) (an officer’s actions should be measured against a background which includes the violent nature of narcotics crimes). Accordingly, the search incident to the stop was justified, for the safety of the officers was served by the minimal governmental intrusion on appellant’s person. In Commonwealth v. Rodriquez, 387 Pa.Super. 271, 280-81, 564 A.2d 174, 179 (1989), this Court stated:

The justification for such conduct has its roots in the seriousness with which drug curtailment has been approached by our society. The needless loss of life attendant to the illegal drug industry is all too well documented in the newspapers as a virus which reeks havoc on users, distributors and law enforcers.[][ As noted by one court on this ever increasing scourge that plagues our society:
Although the suspicion of narcotics possession and distribution is not universally recognized as a circumstance which, standing alone, gives rise to an inference of dangerousness, we believe that the better view is that it does. See [United States v.] Post, 607 F.2d [847] at 851 [9th Cir.1979]. The Supreme Court implied as much in [Michigan v.] Summers [452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340] [ (1981) ] when it stated: “[T]he execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence.” 452 U.S. at 702, 101 S.Ct. at 2594.
We hold, therefore, even though the officers who detained [the defendant] had no information that he was armed or that he had a past history of violence, they acted reasonably when conducting a protective patdown search for weapons in light of the fact that they had a reasonable suspicion that Williams was presently engaged in narcotics distribution. To hold otherwise would be an invitation to violence in what is always a potentially explosive situation.
Williams v. Com., supra, [4 Va.App. 53], 354 S.E.2d [79] at 87 [(1987)] (Citations omitted).

Id., 387 Pa.Superior Ct. at 280-81, 564 A.2d at 179.

Once discovering the gun, police had probable cause to arrest. In conducting a search incident to the arrest, police recovered the crack cocaine and $220 in cash. Accordingly, the evidence was admissible.

Judgment of sentence affirmed.

BECK, J., concurs in the result.

      . 35 P.S. § 780-113 et seq.

      . Id.

      . Id., § 6106.

      . Id., § 6108.

      . In Commonwealth v. Davidson, 389 Pa.Super. 166, 566 A.2d 897 (1989), this Court pointed out:

        Of the 402 homicides in Philadelphia in 1988, nearly 100 were known to be drug related; of the 335 homicides in 1987, at least 77 were drug related. See Boubion “City’s Murder Rate on Record Race," Philadelphia Daily News, at 11 (March 20, 1989); Samuel, "Three Weekend Homicides Bring Philadelphia Total to 108[.]”

        Id. 389 Pa.Super. at 173, 566 A.2d at 900 n. 2.


author: POPOVICH, Judge. HOFFMAN, Judge,

text:
    591 A.2d 1079
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael GREEN, Appellee.
    Superior Court of Pennsylvania.
    Argued March 6, 1991.
    Filed May 29, 1991.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellant.

      Samuel C. Stretton, West Chester, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge.

This case involves an appeal by the Commonwealth from the order of the Court of Common Pleas of Philadelphia County granting the Defendant/Appellee’s (Michael Green’s) motion to suppress. We reverse.

The standard of review in such a case has been articulated most recently by a panel of this Court in Commonwealth v. Jenkins, 401 Pa.Super. 580, 585 A.2d 1078 (1991); to-wit:

In reviewing a suppression court’s order suppressing evidence, we, as an appellate court, must consider only the evidence of the defendant’s witnesses, and only so much of the evidence presented by the prosecution as remains uncontradicted by the record as a whole. When the evidence supports the factual findings of the suppression court, we may reverse only if there is an error of law.

Id. 401 Pa.Superior Ct. at 581, 585 A.2d at 1079 (Citations omitted). Instantly, the Defendant/Appellee presented no witnesses. Accordingly, the Commonwealth’s factual account remains uncontradicted in the record. With the preceding in mind, we proceed to itemize the facts needed to assess the propriety of the suppression court’s ruling.

On December 19, 1988, Pennsylvania State Parole Officer James R. Hines was assigned to supervise the Defendant, a parolee as of March 15,1988, while he received treatment at the intensive drug unit in West Philadelphia. The Defendant had secured a job driving a school bus and was earning from $150 to $200 a week.

Six or seven weeks prior to February 22, 1989, Parole Officer Hines received an anonymous phone call indicating that the Defendant might have been involved in drug trafficking. After receipt of this information, Parole Officer Hines spoke with his supervisor and other fellow parole officers. It was concluded that a surveillance of the Defendant was warranted. In the course thereof, it was discovered that the Defendant was. driving a Cadillac and making efforts to conceal this from the parole office. For instance, the Defendant would park the Cadillac one to two blocks from the parole office where he would visit at least twice a week, even though there was parking available at the office site. Also, it was noticed that the Defendant was in possession of what appeared to be expensive jewelry, items which were beyond his visible means to afford.

On February 21, 1989, at 10:25 p.m., Parole Officer Hines arrived at the Defendant’s residence and was told by his mother that her son was not there. Under the terms of the Defendant’s parole, he was required to be home between the hours of 8:00 p.m. and 6:00 a.m. As a matter of procedure, Hines had to inspect the Defendant’s room to verify his unauthorized absence, a clear violation of condition # 7 of his parole and a ground upon which to terminate the program. Defendant’s mother was advised of the parole officer’s need to see Green upon his return.

On February 22, 1989, at approximately 11:30 a.m., the Defendant came into the parole office voluntarily. With his arrival, the Defendant was arrested, handcuffed and shackled before being transported a distance of some ten blocks to his home for a search of his room.

The search was prompted by the Defendant’s violation of his curfew the preceding evening and Parole Officer Hines’ notification by letter dated February 6, 1989, that the Defendant had been terminated from the West Philadelphia drug treatment program, either of which constituted a basis to revoke parole.

Parole Officer Hines and three other agents from the office conducted a search of the Defendant’s room and found: (1) a .32 caliber revolver with 12 rounds in a jacket; (2) 29 grams of what was believed to be a controlled substance (cocaine); and (3) a suitcase with drug paraphernalia, ie., an Ohaas 3 beam balance scale, large jars identified as Manatol, a large jar marked Quinine, some items with residue, and 4-5 hundred unused packets.

Thereafter, the Defendant was given a copy of Form 340 specifying the reasons for the detainer of February 22, 1989, which included the charges lodged against him arising out of the search.

The confiscated drugs were turned over to the Philadelphia Police Department for testing and resulted in the filing of charges, ie., possession of drug paraphernalia, possession of a controlled substance, and possession with intent to deliver a controlled substance. However, the seized .32 caliber revolver, albeit given to the police by the parole officer, did not lead to the filing of any offense.

A motion to suppress was filed, testimony was received and arguments from counsel were heard. By order dated October 26, 1989, the suppression court concluded as a matter of law that the parolee’s Fourth Amendment rights were violated and granted his motion to suppress the physical evidence. It did so in the belief that the parole officer did not have “reasonable grounds” to engage in a warrant-less search, had “switched hats” (from the role of a parole officer to that of a police officer) when surveillance of the Defendant for drug trafficking was authorized and in conducting a second search of his room for contraband.

The suppression court concluded that the parole officer was looking for evidence of “new criminal charges” in searching the parolee’s room following his arrest, and, as such, was required to satisfy the probable cause standard to validate the warrantless search. The Commonwealth disagreed and appealed.

The Commonwealth assails the October 26th order on dual grounds which, when distilled, are reduced to the claim that the parole officer had “reasonable grounds” to conduct the search of the parolee’s room following his arrest for violating parole.

We observe that no court has held that a parolee is entitled to the full panoply of individual rights and liberties. Cf. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Latta v. Fitzharris, 521 F.2d 246, 248 (9th Cir.1975), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975); White, The Fourth Amendment Rights of Parolees and Probationers, 21 U.Pitts.L.Rev. 167, 172-76 (1969). However, the United States Supreme Court has acknowledged that the requirements of due process in general apply to a parolee; viz.:

... the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a “grievous loss” on the parolee____ [T]he liberty is valuable and must be seen as within the protection of the Fourth Amendment.

Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972). Thus, the “minimum” requirements of due process were held by the Morrissey Court to require the implementation of a two-step process prior to the revocation of one’s parole.

In Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), the high Court was asked to decide whether a warrantless search of a probationer’s home by a probation officer violated the Fourth Amendment. The factual account indicated that the Wisconsin Department of Health and Social Services, the agency delegated with the authority to supervise probationers, had regulations permitting any probation officer to search a probationer’s home without a warrant as long as there were, inter alia, “reasonable grounds” to believe the presence of contraband. A variety of factors came into play in determining whether “reasonable grounds” existed, some of which included the officer’s own experience with the probationer, and the “need to verify compliance with rules of supervision and state and federal law.” Id. at 871, 107 S.Ct. at 3167.

Additionally, evidence existed that the supervisor of Griffin’s probation officer received information from the police that “there were or might be guns” in Griffin’s apartment. The supervisor, accompanied by another probation officer and three policemen, went to the location and conducted a warrantless search that produced a handgun. Griffin, who was present in the apartment, was charged and later convicted of a weapon’s offense. His efforts to suppress proved fruitless.

The United States Supreme Court found no Fourth Amendment violation because the search was carried out pursuant to a regulation of the Wisconsin Department of Health and Social Services that itself satisfied the Fourth Amendment’s reasonableness requirement. The Court found it unnecessary to embrace the State Court’s position (deemed a new principle of law) that any search of a probationer’s home by a probation officer satisfied the Fourth Amendment as long as the information possessed by the officer satisfied a federal “reasonable grounds” standard.

Instantly, albeit we have no proof of a “written” policy emanating from the parole office in Philadelphia, we have ample evidence of a “pattern and practice” of conducting a follow-up search of a parolee’s premises upon his arrest where “reasonable grounds” exist to believe additional violations of parole may be uncovered so as to bring this case within the ambit of Griffin, supra. Cf. Jarvis El v. Pandolfo, 701 F.Supp. 98, 101 (E.D.Pa.1988) {Griffin applicable to assess the warrantless search of a parolee’s residence and the seizure of evidence therefrom).

We find instructive the analysis engaged in by Griffin to dispense with the use of a “probable cause” standard in evaluating a warrantless search in a probation context, which we find germane to a parole setting; to-wit:

A warrant requirement would interfere to an appreciable degree with the probation system, setting up a magistrate rather than the probation officer as the judge of how close a supervision the probationer requires. Moreover, the delay inherent in obtaining a warrant would make it more difficult for probation officials to respond quickly to evidence of misconduct, and would reduce the deterrent effect that the possibility of expeditious searches would otherwise create____
******
We think that the probation regime would also be unduly disrupted by a requirement of probable cause. To take the facts of the present case, it is most unlikely that the unauthenticated tip of a police officer—bearing, as far as the record shows, no indication whether its basis was firsthand knowledge or, if not, whether the firsthand source was reliable, and merely stating that Griffin “had or might have” guns in his residence, not that he certainly had them—would meet the ordinary requirement of probable cause. But this is different from the ordinary case in two related respects: First, even more than the requirement of a warrant, a probable-cause requirement would reduce the deterrent effect of the supervisory arrangement. The probationer would be assured that so long as his illegal (and perhaps socially dangerous) activities were sufficiently concealed as to give rise to no more than reasonable suspicion, they would go undetected and uncorrected. The second difference is well reflected in the regulation specifying what is to be considered “[i]n deciding whether there áre reasonable grounds to believe ... a client’s living quarters or property contain contraband,”____ The factors include not only the usual elements that a police officer or magistrate would consider, such as the detail and consistency of the information suggesting the presence of contraband and the reliability and motivation to dissemble- of [sic] the informant, ,, but also “[information provided by the client which is relevant to whether the client possesses contraband,” and “[t]he experience of a staff member with that client or in a similar circumstance.” * * * []
In such circumstances it is both unrealistic and destructive of the whole object of the continuing proba tion relationship to insist upon the same degree of demonstrable reliability of particular items of supporting data, and upon the same degree of certainty of violation, as is required in other contexts. In some cases—especially those involving drugs or illegal weapons—the probation agency must be able to act based upon a lesser degree of certainty than the Fourth Amendment would otherwise require in order to intervene before a probationer does damage to himself or society. The agency, moreover, must be able to proceed on the basis of its entire experience with the probationer, and to assess probabilities in the light of its knowledge of his life, character and circumstances.
To allow adequate play for such facts, we think it reasonable to permit information provided by a police officer, whether or not on the basis of firsthand knowledge, to support the probationer search. The same conclusion is suggested by the fact that the police may be unwilling to disclose their confidential sources to probation personnel. For the same reason, and also because it is the very assumption of the institution of probation that the probationer is in need of rehabilitation and is more likely than the ordinary citizen to violate the law, we think it enough if the information provided indicates, as it did here, only the likelihood (“had or might have guns”) of facts justifying the search.

483 U.S. at 876, 878-80, 107 S.Ct. at 3170, 3171-72 (Emphasis added; footnotes omitted; citations omitted).

At bar, we had testimony from Parole Officer Hines that the search of the Defendant’s bedroom, following his arrest, was “part of ... normal procedure” for the narcotics unit in West Philadelphia. Municipal Court Hearing, 3/15/89 at 5 & 9. This “standard procedure” was activated:

... if the man [wa]s being ... arrested, taken into custody ... [even if this took place at the parole agent’s office] it [wa]s ... procedure to check his residence____

Id. at 10-11. As an example of how the procedure is implemented, Officer Hines recounted that where a parolee had been known to “carry weapons”, upon his arrest the parole officer would conduct a search of the immediate area in which he was taken into custody, and possibly his room would be searched for weapons.

The same situation [existed] with drugs. If we received information that he may be involved with drugs, either using or selling drugs, and we go to the residence, or if we take him into custody in the office, we will take him to that residence and search. If it is a family dwelling, he only has one room, that’s the only room that’s searched. The house is not searched, only his area.

Suppression Hearing, 7/20/89 at 50. This “[wa]s the policy in the intensive drug unit at 52nd and Westminister” in Philadelphia. Id. As to whether it was a written or unwritten policy of the unit, Hines did not know. Id at 53.

With regard to the information possessed by Parole Officer Hines at the time of the Defendant’s arrest, which had been accumulated over a period of six to seven weeks prior to the search, he testified:

We had an anonymous call [that the Defendant “may” have been involved in drug trafficking]; we had surveillance on [the Defendant] which revealed a late, relatively late model Cadillac which he attempted to conceal from us and some possessions [of what appeared to be jewelry] which we felt that he may not be able to afford with his visible income. * * * And the fact that he was on parole, still under the supervision of the State Parole Board, in State custody and had a drug history.

Id. at 14 and 46. Finally, the parole officer admitted looking at an extract of the Defendant’s prior arrests, which included convictions for “knowingly and intentionally possessing” and prior drug sales. Suppression Hearing, 9/28/89 at 3.

With the preceding information in hand, and given the standard practice of searching a parolee’s premises for drugs where the facts known to the officer indicated past and/or present involvement with drugs, Parole Officer Hines’ purpose in searching the Defendant’s room, after arresting him for violating his parole, was to secure additional evidence of parole violations. This was testified to consistently by Hines, especially on his cross-examination by counsel for the Defendant; namely:

Q. ... you did not search this primarily for your violation; you searched it primarily to give information to the police and, in fact, you did that?
A. Absolutely not. That’s not why we searched. We searched to get any illegal contraband from the house. If that did not happen to be new police charges, fine, it still might be a parole charge. That’s why we went there.

Id. at 56. All drugs were taken to the Philadelphia Police Department. All confiscated drugs are removed routinely to the police department because the parole office does not have the facilities to do the testing. Id.

We find that Parole Officer Hines, in compliance with accepted office practice and procedure, when coupled with the information gathered upon the Defendant, conducted a lawful warrantless search of the Defendant’s room following his arrest for curfew and drug treatment violations.

The information possessed by the parole officer did not rise to the level of probable cause to justify the issuance of a warrant to search: an anonymous tip that the Defendant “may” have been dealing in drugs, his wearing of jewelry, driving a Cadillac and past drug arrests. See Griffin, supra; Latta, supra.

Nonetheless, we do not find that the Fourth Amendment required that Hines had to secure a warrant in advance of searching the Defendant’s room. When the Defendant was arrested, his parole officer was in the possession of information which, albeit not of the probable cause type to justify the issuance of a warrant to search, required him to determine whether Green was a good parole risk. In this scenario, it was critical for the parole authorities to know whether the Defendant was a regular user of marijuana or other drugs, which, in fact, had been monitored by regular urinalysis indicating negative results, or whether he was engaged in distribution.

“ ‘Possession of narcotics for sale by a parolee threatens both the parole system and the public since such activity is both a violation of parole and a separate crime.’ ” Latta, supra, 521 F.2d at 252 (Citation omitted). Consequently, applying the principles enumerated by the Court in Griffin, supra, we conclude that the search of Green’s room was not unreasonable in a constitutional sense. As observed by the Ninth Circuit Court of Appeals in a similar situation:

His parole officer’s interest in inspecting his place of residence did not terminate upon his arrest; if anything, it intensified. Revocation is not a necessary consequence of a parole violation; frequently the parolee merely receives counseling and is released under the same or additional conditions. In making their decisions regarding disposition, the parole authorities need to know the number and seriousness of all violations, as well as other current information about the parolee’s progress.

Latta, supra, 521 F.2d at 252 (Citations omitted). Likewise, we hold that Hines acted in a fashion consistent with office policy and due process requirements as developed under the Fourth Amendment. We see no evidence that the parole officer either acted as a “stalking horse” for the police or “switched hats” in proceeding to search Green’s bedroom following his arrest. Compare Commonwealth v. Brown, 240 Pa.Super. 190, 361 A.2d 846 (1976), with Commonwealth v. Edwards, 400 Pa.Super. 197, 583 A.2d 445 (1990).

The conduct of the parole officer was predicated upon a “reasonable belief” that a search was necessary to the performance of his duties as a parole officer (to determine whether the Defendant was a good candidate for continued parole/rehabilitation and the protection of society from any wrong of the parolee) and this did not cease with the Defendant’s arrest. United States v. Richardson, 849 F.2d 439 (9th Cir.1988); United States v. Dally, 606 F.2d 861, 863 (9th Cir.1979); Latta, supra; Jarvis El, supra.

Lastly, we find untenable the suppression court’s argument that the parole officer should have obtained a warrant to search the Defendant’s room, the absence of which converted the parole officer into a police officer seeking new criminal charges against the Defendant.

As discussed supra, the information possessed by the parole officer fell short of constituting probable cause in a warrant framework. The parole officer had no knowledge that the Defendant’s room contained contraband justifying the issuance of a warrant until after he conducted the search. See Commonwealth v. Devlin, 294 Pa.Super. 470,

440 A.2d 562, 566 (1982) (Parole officer did not know of the incriminating nature of a diary described by parolee’s mother as “alarming” until after she seized it and was able to digest its content, following which a warrant was secured to seize the document formally). This did not, however, foreclose the parole officer from carrying out his “normal duties” of satisfying himself, based on information received, that the Defendant was still a good parole risk. See Griffin, supra; Commonwealth v. Miller, 303 Pa.Super. 504, 450 A.2d 40 (1982); Brown, supra. We hold that the performance of such a function was accomplished by Hines without violating any rights of the Defendant under the Fourth Amendment to the United States Constitution.

Order reversed; jurisdiction relinquished.

HOFFMAN, J., files a dissenting statement.

HOFFMAN, Judge,

dissenting:

I respectfully dissent. I first wish to emphasize that the parole officer’s compliance with “office practice and procedure” governing searches does not, on its own, make the search reasonable under the fourth amendment. A search made in compliance with such a practice could be proper only if the practice itself complies with constitutional standards—i.e., allows for searches only where there are “reasonable grounds” to believe that contraband will be found. See Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). In the case at bar, the parole officer referred to an office policy pursuant to which agents would search the residence of a parolee whenever a parolee was taken into custody (even if the arrest occurred at the parole office), and whenever agents received information that a parolee may be involved with drugs. Because this “policy” allows for the search of a residence without regard to the likelihood (“reasonable grounds”) that contraband would be found in the parolee’s residence, the policy, in my view, is not “reasonable” within the meaning of the fourth amendment.

The next question is whether the search in this case nevertheless was reasonable because there were in fact reasonable grounds to believe that contraband would be found in appellant’s residence. On this issue, I agree with the Honorable Russell M. Nigro in the court below, who observed that “[f]ruitless drug surveillance, an uncorroborated anonymous telephone call, a suspect wearing what appeared to be expensive jewelry, a suspect driving a Cadillac whose ownership was unverified, and a search of a room on a preceding night which disclosed nothing, do not [establish] reasonable grounds” to search a private residence without a warrant. See Suppression Court Opinion at 10, R.R. at 14a. I would add that, although a parolee’s status justifies a reduced level of suspicion under the fourth amendment, the requirement that this suspicion be particular to the place to be searched remains in full force. And, in this case, although the facts known to the parole officer regarding appellee’s activities and possessions warranted heightened scrutiny of appellee’s activities, this information provided no reason to believe that contraband would be found at appellee’s residence. Because I find that the warrantless search in this case was unreasonable, I would affirm the order of the suppression court.

Finally, it should be emphasized that this case is limited to the question of the legitimacy of the search under the fourth amendment of the United States Constitution. The question whether a similar result would follow under the search and seizure provision of the Pennsylvania Constitution, see Article 1, Section 8, which our Supreme Court has held to be more protective of individual privacy rights, see, e.g., Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), is not before us.

      . Inasmuch as the Commonwealth certified in its appellate brief that the suppression court’s order effectively terminated its case against the Defendant, this appeal is properly before the Superior Court. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . It is irrelevant whether the probation authorities relied upon peculiar knowledge which they possessed of petitioner in deciding to conduct the present search. Our discussion pertains to the reasons generally supporting the proposition that the search decision should be left to the expertise of probation authorities rather than a magistrate, and should be supportable by a lesser quantum of concrete evidence justifying suspicion than would be required to establish probable cause. That those reasons may not obtain in a particular case is of no consequence.

      . The search of the probationer in Griffin was conducted pursuant to a regulation which permitted warrantless searches of probationers as long as there were “reasonable grounds" to believe that contraband would be found. The Griffin Court did not make an extended inquiry into whether reasonable grounds in fact existed in that case because it found that the Wisconsin regulation complied with the fourth amendment and that there were "reasonable grounds" from which the Wisconsin Supreme Court could find that this regulatory standard had been met. 483 U.S. at 880 n. 8, 107 S.Ct. at 3172 n. 8. Under Griffin, then, a state regulation (and, perhaps, an informal practice such as that presented here?) governing the search of a probationer or parolee may be entitled to some deference, but only so long as the regulation conforms with fourth amendment standards.