author: POPOVICH, Judge: KELLY, Judge,

text:
    597 A.2d 616
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert MARCONI, Appellee.
    Superior Court of Pennsylvania.
    Argued April 24, 1991.
    Filed Aug. 23, 1991.
    Reargument Denied Oct. 16, 1991.

      Ann Osborne, Asst. Dist. Atty., Media, for Com., appellant.
    Arthur T. Donato, Jr., Media, for appellee.
    David M. McGlaughlin, Philadelphia, for amicus curiae, Pennsylvania Ass’n of Defense Lawyers.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

The Fourth Amendment to the United States Constitution 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.

U.S. CONST, amend. IV. Today, in light of this Constitutional mandate, we are asked to balance the individual’s right to liberty against the societal need for police authority. In so doing, we must determine whether a Terry frisk, which produced contraband, constituted a reasonable search and seizure within the perimeters of the above provision.

The appellee in this case, Robert Marconi, filed a motion to suppress evidence that he claimed was illegally procured during a cursory pat-down for weapons. Before us is the Commonwealth’s appeal from the final order entered in the Court of Common Pleas of Delaware County granting Marconi’s motion. Following review, we affirm.

The trial court has provided us with its findings of fact. After an independent reading of the suppression hearing notes of testimony, we conclude that the trial court’s statement is adequately supported by the record. Thus, we adopt its recitation for purposes of appeal. We have added citations to the record and elaborations, where necessary, in footnotes.

1. On August 18, 1989 at approximately 7:15 p.m., Sgt. Charles Palo of the Ridley Township Police Department was on patrol duty in plain clothes in an unmarked vehicle. [N.T., July 11, 1990, at 7]
2. Officer Palo has been a police officer for 12 years and is qualified as an expert in narcotics investigation. [Id. at 6-7]
3. While in the vicinity of the 600 block of South Avenue in Ridley Township, Sgt. Palo observed a 1982 Cadillac automobile pull into the parking lot of Our Lady of Lourdes Church and School which abuts South Avenue. [Id. at 8] The church and school were closed at that time. [77] Officer Palo then pulled his vehicle into a parking lot across the street from the subject Cadillac automobile and parked in an area approximately 75 to 100 feet away from the Cadillac automobile. [Id. at 9] There had been numerous previous acts of vandalism at the school and Sgt. Palo decided to observe the [...] Cadillac [...] so as to determine why [it] had parked in the school parking lot. [77] The weather was clear and there was daylight at the time. [77]
4. Sgt. Palo observed the driver of the subject vehicle, defendant Robert Marconi, exit from the driver’s side of the [car] and begin to vomit. [Id. at 10] The defendant then walked to the passenger side of the vehicle where [a] female passenger exitedf.] [She] entered the driver’s side of the vehicle while defendant entered the passenger side[.] [Id. at 11] After observing the subject vehicle for a period of three to five minutes, Sgt. Palo drove his vehicle to the subject vehicle to investigate. [Id. at 12] He wanted to determine the condition of each of the vehicle’s occupants to discover if they were intoxicated. He also sought to determine why they were parked next to the school. [Id. at 13. See also id. at 24-25]
5. Sgt. Palo then parked near the subject vehicle, exited his vehicle and walked to the driver’s window. He recognized the driver as the defendant’s wife. [Id. at 16] Sgt. Palo had come into contact with the defendant and his wife in the past in responding to certain domestic disputes between them. [Id.] After identifying himself, Sgt. Palo observed the defendant as he appeared to conceal something in the rear of his pants; therefore, Sgt. Palo told the defendant to place his hands on the dashboard. [Id. at 15] Sgt. Palo was concerned for his safety as he knew that the defendant had been charged previously with drugs and weapons offenses. [Id. at 16-17]
6. Sgt. Palo advised the defendant to exit the vehicle whereupon he performed a frisk of the defendant to determine if he had any weapons on his person. [Id. at 17-18] Although he felt no weapon when patting the rear pants pocket area, he felt an object in defendant’s left rear pants pocket. [Id. at 18] He reached into that pocket and retrieved two plastic bags which appeared to contain controlled substances. The smaller of the bags (Commw.Exh. No. 2) appeared only to contain residue. The larger of the bags (Commw.Exh. No. 1) contained approximately 1.08 grams of controlled substances which, if felt during a pat down, would feel like a button or a wad of paper. [Id. at 18-19]
7. Sgt. Palo placed the defendant under arrest for alleged drug offenses and transported him to the police station. [Id. at 19] In searching the defendant at the police station, Sgt. Palo removed $324.00 from defendant’s person. [Id. at 20] Sgt. Palo then provided defendant with the Miranda warnings whereupon defendant stated that he, in fact, did have methamphetamine, but possessed it for personal use and that he snorts it. [Id. at 20-22]
8. Sgt. Palo at no time noticed an odor of alcohol on defendant’s person nor did defendant have any problem speaking. [Id. at 22-23]

Trial court opinion, at 1-4.

Based on the foregoing, the trial court was unable to find that Sgt. Palo had probable cause to believe that Marconi possessed evidence of crime which would justify an intrusion into his pants pocket at the time a frisk for weapons was conducted. Trial court opinion, at 5. We agree.

Before we discuss the Commonwealth’s issue on appeal, we note that the Commonwealth certified in good faith that the instant suppression order has substantially hampered the prosecution of this case. In light of the certification, we may entertain this appeal. Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985); see Commonwealth v. Rodriguez, 385 Pa.Super. 1, 2, 559 A.2d 947 (1989) ; Commonwealth v. Switzer, 375 Pa.Super. 137, 140, 543 A.2d 1216, 1218 (1988). See Commonwealth v. Defelice, 248 Pa.Super. 516, 522, 375 A.2d 360, 363 (1977).

Our scope and standard of review under the circumstances are established. Here, we may consider

only the evidence of the defendant’s witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. Furthermore, our scope of appellate review is limited primarily to questions of law. We are bound by the suppression court’s findings of fact if those findings are supported by the record. Factual findings wholly lacking in evidence, however, may be rejected.

Commonwealth v. Person, 385 Pa.Super. 197, 200, 560 A.2d 761, 762-63 (1989) (citations omitted); Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988). See Commonwealth v. Cauto, 369 Pa.Super. 381, 393-94, 535 A.2d 602, 608-09 (1987) (this Court may reverse the suppression court only if its legal conclusions, drawn from the facts in the record, are erroneous). Cf Commonwealth v. Fromal, 392 Pa.Super. 100, 111-12, 572 A.2d 711, 717 (1990) .

On appeal, the Commonwealth raises one issue: whether probable cause to seize an object can arise where a police officer, during a frisk for weapons, feels what he believes (based on his training and experience) to be methamphetamine in the defendant’s pocket. The Pennsylvania Association of Criminal Defense Lawyers, recognizing the importance of this issue, filed a brief of amicus curiae on behalf of Marconi. They phrased the statement of the question involved as follows: “Should the Pennsylvania Courts recognize an exception to the probable cause/warrant requirements of the Fourth Amendment and Article I, § 8 based on the sense of touch and reputation of the person searched?” Amicus brief, at 4. After a review of the record in this case, the parties’ briefs and the applicable law, we conclude that the Sergeant’s search exceeded the limits set forth by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and by the courts of this Commonwealth. Accordingly, we affirm the trial court’s order in this case.

In Terry, the Supreme Court defined the permissible scope of a “stop and frisk.” Eleven years later, the Supreme Court cogently reiterated the principles underlying Terry in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). There, the Supreme Court wrote:

[t]he Terry case created an exception to the requirement of probable cause, an exception whose ‘narrow scope’ this Court ‘has been careful to maintain.’ Under that doctrine a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. [Citation omitted]. Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ or, indeed, any search whatever for anything but weapons. The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.

Id. at 93-94, 100 S.Ct. at 343 (emphasis added).

In Commonwealth v. Canning, 402 Pa.Super. 438, 587 A.2d 330 (1991) this Court found that an officer who arrested a man for public drunkenness exceeded the bounds of Terry when, during a frisk for weapons, the officer reached into the defendant’s pocket and removed two small packets, one containing methamphetamine and the other containing marijuana. This Court held that the officer had no reason to believe that the two packets were weapons. In applying the Terry holding, this Court stated:

In Terry, the United States Supreme Court articulated a police officer’s “narrowly drawn” authority to conduct a reasonable search for weapons for the officer’s protection. Id. at 27, 88 S.Ct. at 1883. The officer may pat down or frisk a suspect for weapons only if he reasonably believes that criminal activity is afoot, and that the suspect may be armed and dangerous. Id. The officer must be able to articulate specific facts to justify his belief that the suspect may be armed and dangerous. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Moreover, the scope of a Terry search is limited. Because the “sole justification of the search ... is the protection of the police officer and others nearby, ... it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. ” Terry v. Ohio, supra, 392 U.S. at 29, 88 S.Ct. at 1884. In the instant case, the officer exceeded the scope of a Terry search. In order to reach into a suspect’s pockets during a Terry search, the officer would have to feel something that appears to be a weapon. “Nothing in Terry can be understood to allow ... any search whatever for anything but weapons.” Ybarra v. Illinois, supra, 444 U.S. at 93-94, 100 S.Ct. at 343. Herein, Officer McCarthy, did not articulate any specific facts to justify a belief that appellant might be armed and dangerous nor did he confine his search to items that may have reasonably appeared to be weapons. As noted by the Municipal Court judge, the items retrieved from appellant’s pocket, two small plastic bags, one containing a white powder and one containing a green weed, do “not feel like a gun, knife, or a blackjack or anything else.” N.T., December 12, 1985, p. 12. Thus, the search cannot be justified under Terry.

Id., 402 Pa.Superior Ct. at 440-41, 587 A.2d at 331-32 (emphasis added).

Very clearly, the search in the instant case can not be justified under the Terry rationale or its progeny. See Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980). See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (in conducting an investigatory detention of an individual in a motor vehicle, the officer may frisk the individual for weapons if the officer has formed a reasonable belief that the person is armed and dangerous) (emphasis added). See also Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (when the justification for conducting a search is the protection of the officer, s/he must be able to point to particular facts from which it may be inferred that the individual was armed and dangerous); Commonwealth v. Berrios, 437 Pa. 338, 340-341, 263 A.2d 342, 343 (1970) (“the arresting officer must be able 'to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.’ Good faith on the part of the officer, in itself, is not enough.”) (citations omitted).

The Commonwealth asks us to accept or create a “plain touch” extension to the “plain view” rule, which in effect would yield yet another erosion to the Fourth Amendment warrant requirement. The Commonwealth argues that to adopt a “plain touch” doctrine would not be tantamount to broadening the exceptions to the warrant requirement. Rather, the Commonwealth contends that “plain touch” is a form of “plain view” and that when a police officer feels what he believes to be a controlled substance based upon his experience, probable cause to conduct a search arises.

We begin our analysis by recognizing that warrantless searches are presumed unreasonable unless the search is justified by an exception to the warrant requirement. Commonwealth v. York, 381 Pa.Super. 55, 552 A.2d 1092 (1989). See Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564 (1971) (“[a]s a general rule a search or seizure without a warrant is deemed unreasonable for constitutional purposes.”). In limited situations, the warrant requirement is excused. For example, see Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (discussing the automobile exception); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (search incident to a lawful arrest); New York v. Belton, 453 U.S. 454,101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (same); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (hot pursuit); U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (consent); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (exigent circumstances); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973) (same); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (evidence in plain view). Moreover, when an officer reasonably believes that criminal activity is afoot, he is authorized under Terry to conduct a protective search; i.e., a pat-down for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Plainly, probable cause is a prerequisite to any search. Commonwealth v. Pinno, 433 Pa. 1, 248 A.2d 26 (1968). Thus, where less than probable cause exists, a cursory patdown for weapons may be all that is acceptable. Terry, supra. See also Alabama v. White, — U.S.-,-, 110 S.Ct. 2412, 2414-17, 110 L.Ed.2d 301, 308-09 (1990).

However, what begins as a lawful investigatory stop may escalate to an arrest if it is supported by probable cause. Commonwealth v. Elliott, 376 Pa.Super. 536, 551, 546 A.2d 654, 661 (1988). In Elliott, supra, this Court held that

[а] n officer may briefly detain a suspect and then proceed to conduct an actual search if the facts gleaned during that detention ripen into probable cause to arrest. Probable cause to arrest exists where the facts at the time of arrest would warrant a prudent person in believing that an offense had been committed, and that the suspect was the perpetrator of the offense.

Id. (citations omitted). See also Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984) (accord); Commonwealth v. Palm, 315 Pa.Super. 377, 462 A.2d 243 (1983) (accord). Cf. Commonwealth v. Smith, 511 Pa. 36, 511 A.2d 796 (1986) (mere suspicions do not constitute probable cause to support a search warrant). See Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991) (defines probable cause). See Commonwealth v. Klinedinst, 403 Pa.Super. 605, 589 A.2d 1119 (1991) (refers to Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and the “totality of the circumstances” test for probable cause).

We have applied these standards to the instant case. In so doing, we reach the same outcome as the trial court. Here, we find no evidence to support a conclusion that at the time of the pat-down, Sergeant Palo had probable cause to believe that Marconi’s pants pocket contained drugs. Probable cause is the probability of criminal conduct, not the possibility of criminal conduct.

The facts show that Marconi was truly ill when he exited his automobile (N.T., July 11, 1990, at 22, 33), that he was with his family {id. at 29), that he was dressed casually {id. at 32), that he was not armed or dangerous {see N.T., July 11, 1990), that Sergeant Palo lacked reason to call for backup police aid or to draw his weapon {id. at 29), and that the items which Sergeant Palo confiscated could have been almost anything. In fact, when defense counsel asked, “You have no dispute that you didn’t feel anything on his body that remotely felt like a weapon,” Sergeant Palo replied, “That’s correct.” Id. at 32. See also id. at 33-34.

Despite the Commonwealth’s assertions that “[t]hrough both specialized training and experience, Officer Palo knew how “rock” methamphetamine felt ...,” we can not condone the formulation of probable cause based on mere speculation, conjecture or hindsight. Terry, supra. See Commonwealth v. Hunt, 280 Pa.Super. 205, 421 A.2d 684 (1980). Cf. Appellant’s brief, at 11-13, 17-18, 20.

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

Here, the minute amount of drugs that was found on Marconi’s person could not have been identified through the sense of touch. The object is as consistent in feeling with a button or an aspirin as it is with methamphetamine. To sanction a search under the facts of this case would be to allow police officers to assume that all small objects in one’s pocket could be drugs. This, we can not do. See Commonwealth v. Hunt, 280 Pa.Super. 205, 421 A.2d 684 (1980). Cf Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968 (1987); Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986).

We can not lose sight of the fact that this began as a Terry frisk. Once the officer was satisfied that Marconi was not armed and dangerous, the inquiry should have ended. Commonwealth v. Wasiuta, 280 Pa.Super. 256, 421 A.2d 710 (1980). See Commonwealth v. Carter, 334 Pa.Super. 369, 483 A.2d 495 (1984). Cf. Commonwealth v. Pine, 370 Pa.Super. 410, 536 A.2d 811 (1988). Cf. Commonwealth v. Williams, 287 Pa.Super. 19, 429 A.2d 698 (1981).

Accordingly, for the foregoing reasons, we affirm the trial court’s order.

Order affirmed.

KELLY, J., files a concurring opinion.

KELLY, Judge,

concurring.

I concur only in the result reached by the majority. The majority concludes “We can not lose sight of the fact that this began as a Terry frisk. Once the officer was satisfied that Marconi was not armed and dangerous, the inquiry should have ended.” Majority Opinion at 18. To the extent that the majority finds that the instant circumstances presented sufficient justification for the officer to stop and conduct only a protective frisk, I agree. To the extent, however, the majority holds that there can be no circumstances which would justify a police officer to conduct a further, more intrusive search based on tactile impressions, I must disagree.

It is axiomatic that the Fourth Amendment protects citizens from the government’s unreasonable searches and seizures. Where, of course, the government lacks a search warrant, it is well settled that searches of the person are considered reasonable if the officer had probable cause to believe the suspect was possessing contraband or was otherwise guilty of a crime. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Commonwealth v. Canning, 402 Pa.Super. 438, 587 A.2d 330 (1991); Commonwealth v. Williams, 390 Pa.Super. 493, 568 A.2d 1281 (1990); Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988) , appeal denied, 521 Pa. 617, 621, 557 A.2d 721, 724 (1989) .

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court considered the question of whether, in view of American criminals’ “long tradition of armed violence,” and the fact that “every year law enforcement officers are killed in the line of duty, and thousands more are wounded,” Terry, supra, 392 U.S. at 23, 88 S.Ct. at 1881, 20 L.Ed.2d at 907, it is reasonable for an officer to conduct a protective search without probable cause. After balancing the citizen’s interest in being free from unreasonable governmental intrusions against the officers’ need for safety, the Court held that it is reasonable under the Fourth Amendment for the police officer to conduct a brief investigatory stop and weapons frisk where the officer has reasonable suspicion to believe that 1) criminal activity is afoot and 2) the person with whom he is dealing may be armed and dangerous. Terry, 392 U.S. at 31, 32, 88 S.Ct. at 1885, 20 L.Ed.2d at 911.

The majority concludes that a search following a protective frisk cannot be justified by the holding in Terry. Majority Opinion at 621. With this I agree. What the majority does not, in my opinion, make clear, is that the question involved instantly falls beyond the ambit of Terry’s holding. Once it is established that the officer stopped and frisked the suspect only after he or she had reasonable suspicion that criminal activity was afoot and that the suspect was armed and dangerous, the requirements of Terry are satisfied. Whether or not an additional, more intrusive post-protective frisk search can be justified depends upon an entirely distinct inquiry: whether “further information came to light during the detention or the frisk to justify an arrest, which could have properly included a complete warrantless search.” Commonwealth v. Carter, 334 Pa.Super. 369, 374, 483 A.2d 495, 497 (1984). This determination involves simply a question of whether there was sufficient evidence to establish that the officer had probable cause to arrest a suspect and search him or her incident to the arrest. See United. States v. Robinson, supra; Adams v. Williams, supra; Commonwealth v. Elliot, 376 Pa.Super. 536, 551, 546 A.2d 654, 661 (1988); Commonwealth v. Canning, supra, 402 Pa.Super. at 441, 587 A.2d at 332 (“[Bjecause there was probable cause to arrest, the officer was justified in searching appellant incident to that arrest and the evidence was properly admissible.”). Neither Terry nor its progeny address this evidentiary concern.

It is well established that visual evidence derived during an investigatory stop and frisk is considered relevant in making the probable cause determination. “The plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with some criminal activity.” Illinois v. Andreas, 463 U.S. 765, 711, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003, 1010 (1983); see also Horton v. California, 495 U.S.-, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987); Commonwealth v. Carelli, 377 Pa.Super. 117, 132-133, 546 A.2d 1185, 1192-93 (1988); Commonwealth v. Ferrari, 376 Pa.Super. 307, 326-327, 545 A.2d 1372, 1381-82 (1988). It has been applied in the context of protective weapons frisks to justify the seizure of evidence discovered when suspicious items were thought to be weapons, but discovered to be mere evidence of a crime when removed from a suspect’s pocket. See Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (consolidated on appeal with Sibron v. New York, supra) (burglar’s tools); Commonwealth v. Dial, 445 Pa. 251, 285 A.2d 125 (1971) (pill case and syringe); Commonwealth v. Elliot, 376 Pa.Super. 536, 546 A.2d 654 (1988) (stash kit). The plain view doctrine has also been applied to justify seizure of contraband discovered during a protective search of the passenger compartment of a suspect’s car. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

In Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), a plurality of the Supreme Court opined:

“Plain view” is perhaps better understood ... not as an independent “exception” to the Warrant Clause, but simply as an extension of whatever the prior justification for an officer’s “access to an object” may be.
The principle is grounded on the recognition that when a police officer has observed an object in “plain view,” the owner’s remaining interests in the object are merely those of possession and ownership. Likewise, it reflects the fact that requiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a “needless inconvenience” that might involve danger to the police and public. We have said previously that “the permissibility of a particular law enforcement practice is judged by balancing its intrusion on ... Fourth Amendment interests against its promotion of legitimate governmental interests.” In light of the private and governmental interests just outlined, our decisions have come to reflect the rule that if, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately.

Id., 460 U.S. at 738-39, 103 S.Ct. at 1541-42, 75 L.Ed.2d at 511-12 (emphasis added) (citations omitted). The Court further explained that the terms “probable cause” and “immediately apparent” as used in plain view situations could not be interpreted as “establishing any requirement that a police officer ‘know’ that certain items are contraband or evidence of a crime.” Id. 460 U.S. at 741, 103 S.Ct. at 1543, 75 L.Ed.2d at 513.

The Commonwealth argues that the tactile evidence derived through a frisk should be considered relevant in determining probable cause as well. I can find no reason to disagree.

The existence of both probable cause and reasonable suspicion are determined by considering all the facts and reasonably derivable inferences known to the officer at the time of the challenged act. See Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985) (adopting “totality of circumstances” test). We do not apprehend facts or derive inferences with our eyes, ears, nose, fingers, or tongue, nor by the senses connected with those parts of the body. Rather, as it has been previously explained, those parts and the senses connected with them merely serve as the conduits by which information is sent to the brain for processing:

... the sense organs provide us with a picture of the physical world. Our problem is to interpret the sensory information and extract its psychological content. To do this we need to process the incoming signals and interpret them on the basis of our past experiences. Memory plays an active role in this process. It provides the information about the past necessary for proper understanding of the present. There must be temporary storage facilities to maintain the incoming information while it is being interpreted, and it must be possible to add information about presently occurring events into permanent memory. We then make decisions and take actions on the information we have received.

Norman, Memory and Attention, at 3 (2d Ed.1796) (emphasis added).

Probable cause and reasonable suspicion are degrees of belief which express an assessment of the probability that a particular conclusion, drawn from the analysis of present sensory impressions and stored experiences, is correct. If the true concern is whether probable cause exists at the time of the challenged act, the type of the last sensory impression (i.e. visual, gustatory, olfactory, aural, or tactile) necessary to tip the balance and establish the requisite degree of belief, should not have constitutional significance.

Certainly, tactile impressions standing by themselves may often be wholly inadequate to support the requisite degree of belief. The truth of this statement, however, in no way warrants a finding that such information is wholly irrelevant, as the tactile impression need not establish probable cause standing alone.

Context, various contemporaneous sensory impressions, and the officer’s memory and experience each may alter the probabilities significantly. See e.g. Texas v. Brown, supra (Powell, J., concurring) (officer may rely on training to make inferences and deductions); Commonwealth v. Stainbrook, 324 Pa.Super. 410, 471 A.2d 1223 (1984) (visual and olfactory impression combined with experience and training to establish probable cause); Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982) (same); Commonwealth v. Pullano, 295 Pa.Super. 68, 440 A.2d 1226 (1982) (olfactory and aural impressions combined with experience to establish probable cause); Commonwealth v. Veal, 287 Pa.Super. 113, 429 A.2d 1125 (1981) (context, visual impressions and experience combined to establish probable cause); Commonwealth v. Stoner, 236 Pa.Super. 161, 344 A.2d 633 (1975) (visual and olfactory impressions combined with experience to establish probable cause).

I find the reasoning utilized in two recent decisions particularly persuasive on this point. In United States v. Ceballos, 719 F.Supp. 119 (E.D.N.Y.1989), two well-experienced undercover Drug Enforcement' Administration (DEA) agents conducted a surveillance over a New York City parking lot, specifically observing the customers using certain public pay phones. Id. at 121. The area was known to be frequented by narcotics dealers who often used the pay phones “to transact their business.” Id. Ceballos was observed dialing a telephone number, punching in an additional seven to ten digits, and hanging up without talking into the receiver. Id. Within less than one minute, he picked up the telephone which had begun to ring. Id. The DEA agents immediately recognized the procedure as the making of a “beeper call.” Id. Ceballos then re-entered his car and, along with a co-defendant, drove a short distance only to stop and place two more telephone calls from another public pay phone. Id. Ceballos and his co-defendant then returned to the car and drove evasively and hurriedly. Id. All the while, the undercover agents successfully maintained surveillance. Id. Next, Ceballos and his co-defendant pulled over at a street corner, where Ceballos exited the car, opened the trunk, and removed two plastic grocery bags. Id. He gave one to the co-defendant, who “placed it inside his jacket.” Id. The officers then made their move and confronted the suspects. Id. The co-defendant’s attempt to flee was thwarted as a DEA agent was able to apprehend him and frisk him for weapons. Id. During the pat-down, one of the agents felt “a large bulge” inside the left side of the co-defendant’s inside jacket pocket, which he knew from touching was not a gun or other weapon but rather which he “believed ... to be narcotics.” Id. at 127.

After noting that the officer had reasonable suspicion to believe that the defendants were involved in drug dealing and that narcotics trafficking today reasonably warrants the conclusion that a suspected drug dealer may be armed and dangerous, the Ceballos Court held that the evidence derived in the post-frisk search was admissible:

The tactile discovery during the pat-down revealed evidence of the crime suspected and transformed the agent’s reasonable suspicion into probable cause to arrest. The feel of the object, together with the pattern of defendants’ behavior observed earlier, amounted to probable cause to believe the object was narcotics and that the defendants had committed a narcotics offense. The circumstances preceding Agent Whipple’s frisk of [co-defendant] — the “beeper calls,” evasive driving, suspicious transaction and attempted flight — provided the foundation necessary for the natural ripening of suspicion into probable cause upon the incidental tactile discovery of cocaine during the pat-down for weapons. Any of the five senses, alone or in combination, may provide reliable evidence.

Id. at 128 (emphasis added).

Similarly, in United States v. Pace, 709 F.Supp. 948 (C.D.Cal.1989) aff'd 893 F.2d 1103 (9th Cir.1990), law enforcement agents (a Drug Enforcement Administration agent and a police officer) observed Pace, a suspected drug courier, walk furtively about the Los Angeles International Airport. Id. at 950. The agents approached Pace, identified themselves, and obtained his permission to search his bag and to pat-down his outer garments. Id. at 951. Although the search of the bag did not disclose narcotics or large sums of money, the pat-down did reveal that Pace was in fact a drug courier, for during the pat-down, the officer “felt two hard objects on [defendant’s back. [The police officer] immediately identified these objects through the defendant’s clothing as having the size and shape of two kilos of cocaine packaged in the form of ‘bricks.’ ” Id. Thereafter, the evidence was seized and defendant arrested. Id.

Pace moved for suppression of the two kilograms of cocaine. Id. at 950. After concluding that the frisk of the outer garments was justified through consent, the court reasoned that “[wjhen objects have a distinctive and consistent feel and shape that an officer has been trained to detect and has previous experience in detecting, then touching these objects provides the officer with the same recognition his sight would have produced. ” Id. at 955 (emphasis added). The court found credible the police officer’s testimony that the true identity of the bricks was immediately identifiable by the well-trained police officer who knew well the size, shape and hardness of cocaine packaged in brick form. Id.

Of course, neither of these decisions are binding on this Court. Nor are the decisions of the several other jurisdictions which have already recognized that the touch of certain objects can be a relevant factor in determining probable cause. See United States v. Williams, 822 F.2d 1174 (D.C.Cir.1987) (collecting federal cases); State v. Richardson, 156 Wis.2d 128, 456 N.W.2d 830 (1990); Henderson v. State, 535 So.2d 659 (Fla.App.1988); People v. Lee, 194 Cal.App.3d 975, 240 Cal.Rptr. 32 (1987); State v. Washington, 134 Wis.2d 108, 396 N.W.2d 156 (1986); State v. Ortiz, 67 Haw. 181, 683 P.2d 822 (1984). I would find, however, the rationale employed in each is compelling and applicable in this jurisdiction.

It is important to reaffirm that acceptance of the relevance of such tactile information in this context would not alter the suspect’s protections against unreasonable searches and seizures. In each case, before the Commonwealth could justify the post-frisk search, the Commonwealth would still have the burden of establishing that the officer reasonably believed criminal activity was afoot and that the suspect frisked was armed and dangerous, and that the officer conducted a reasonable protective weapons frisk, during which tactile sensory impressions were received which, combined with other factors, provided probable cause to believe that contraband or evidence of a crime might be found on the suspect’s person. The trial court would have the responsibility to make its own independent assessment of credibility and probability and would be free to reject claims that the frisk was warranted; that the frisk was reasonable in intensity and duration; that particular tactile sensations were obtained; and that the impressions combined with other facts gave rise to the required probable cause to believe that the item was contraband or evidence of a crime. Danger of police abuse would be greatly minimized by conscientious execution of the responsibility of the suppression judge to exercise independent judgment in this respect, as the suppression court did instantly.

Moreover, recognition of the relevance of tactile impressions in determining probable cause would necessarily be no more and perhaps less susceptible to abuse by police disposed to make false claims, than are claims of visual, aural, or olfactory impressions. See United States v. Pace, supra, 709 F.Supp. at 956. An officer’s claim to have seen the butt of a gun underneath a driver’s seat, to have smelled an odor of opium, marijuana, or alcohol, or to have heard a suspect make a particular relevant statement is necessarily personal, subjective and evanescent. Reviewing such claims, the suppression court is often effectively limited to an assessment of the officer’s credibility. On the other hand, since tactile impressions involve physical objects which may be examined by and events that may be re-enacted before the suppression court, see United States v. Pace, supra, 709 F.Supp. at 956, they are readily subject to objective appraisal. Whatever the (in some cases) dubious reliability of the officer’s claimed tactile impressions, the suppression court’s unusually useful opportunity to scrutinize the officer’s account precludes unfettered abuse of such testimony.

Succinctly, I cannot see how, in determining probable cause, the eyes can logically or reasonably say to the hands, “I have no need of thee.” I would hold that, in such determinations, where the trial court credits the testimony of the officer as to the knowledge he or she derived from the touch of an object during a frisk, that knowledge, like that derived from all other sensory impressions, must be given due consideration. Where probable cause is found to exist, a further, more intrusive frisk of the suspect’s person is, of course, constitutionally reasonable.

Applying this rationale instantly, and granting due deference to the suppression court’s determination, I am compelled to conclude that the officer lacked probable cause to search appellee after the investigatory stop and frisk. The officer testified that his frisk disclosed the tactile impression of an object which felt like a “rock or pebble.” Although the officer testified that he believed this object to be drugs, the surrounding circumstances offered insufficient reason to believe that the object was contraband, or for that matter, that it was not simply just what it felt like: a “rock or pebble.” Had the officer credibly testified that the crime he suspected appellee to have committed been a recent burglary of a nearby jewelry store, and had other surrounding circumstances lead the officer to believe that jewelry might have been carried out in the pockets of the culprit(s), the officer’s testimony that he felt a “rock or pebble” in the pocket of appellee during a frisk might have warranted a finding of probable cause. See State v. Washington, 134 Wis.2d 108, 396 N.W.2d 156 (1986) (tactile impression of watches in pocket of suspect near recent burglary of jewelry store sufficient for probable cause). Since no such facts were established, I agree with the majority that the suppression court did not err herein. Hence, I concur.

      . Comparatively, Article I, Section 8 of the Pennsylvania Constitution reads:
      That the general, great and essential principles of liberty and free government may be recognized and unalterably established, WE DECLARE that— ... Sec. 8. Security from searches and seizures. The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
      PA. CONST, art. I, § 8.

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

      . On cross-examination, Sgt. Palo admitted that he never saw anything in Marconi’s hand (N.T., July 11, 1990, at 26) and that when Marconi reached behind his back, “it looked like his hand was back by his back pocket. Whether it went in or not, I don’t know.” Id. at 27.

      . The Sergeant testified as follows:
      I know Mr. Marconi was convicted for manufacturing methamphetamine. I also knew that he was also arrested for having a cache of weapons in his home in Springfield. I also knew that he was an associate of Outlaw Motorcycle gangs, the Warlocks and the Pagans. And that he was involved with the Castle, that had lots of crime committed over in Nether Providence.
      N.T., July 11, 1990, at 16. On cross-examination, Sgt. Palo said that no one had given him any information that Marconi was armed and dangerous on the day in question. See id. at 24, 31. Further, he stated that his knowledge of Marconi’s reputation stemmed from what he had read in the newspaper "years ago” and from talking to police officers about Marconi "in the past.” Id. at 31. See id. at 32.

      . Regarding the frisk, Sgt. Palo stated that when he touched Marconi's back pocket, he “felt something there. It felt like a rock or a pebble.” N.T., July 11, 1990, at 18. Sgt. Palo "then reached in and pulled out what was in that pocket." Id.

      . Sgt. Palo testified that in his experience, when he has frisked individuals and felt "a hard type of object of this nature, ... when [he] retrieved it, [he] found it to be methamphetamine.” N.T., July 11, 1990, at 19. He also stated, “Mr. Marconi’s been arrested for the manufacture of methamphetamine. That gave me the belief that that was methamphetamine in his pocket.” Id.

      . Marconi also had no trouble walking. N.T., July 11, 1990, at 22.

      . The seized physical evidence, to wit, the suppressed drugs, formed the basis of the charge against Marconi.

      . See Commonwealth v. Brundidge, 404 Pa.Super. 106, 590 A.2d 302 (1991) (discusses the Fourth Amendment); see Commonwealth v. Edmunds, 526 Pa. 374, 388-89, 411-12, 586 A.2d 887, 894, 906 (1991) (discusses the Pennsylvania Constitution); Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983) (same).

      . See In Interest of Dixon, 356 Pa.Super. 105, 514 A.2d 165 (1986). See also Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991).

      . In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court explained the difference between a "stop” and an "arrest.” It stated:
      On the one hand, it is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess. For this purpose it is urged that distinctions should be made between a “stop" and an "arrest" (or a “seizure” of a person), and between a “frisk” and a “search.” Thus, it is argued, the police should be allowed to “stop” a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity. Upon suspicion that the person may be armed, the police should have the power to “frisk” him for weapons. If the “stop” and the “frisk” give rise to probable cause to believe that the suspect has committed a crime, then the police should be empowered to make a formal “arrest,” and a full incident "search” of the person. This scheme is justified in part upon the notion that a "stop” and a “frisk" amount to a mere "minor inconvenience and petty indignity,” which can properly be imposed upon the citizen in the interest of effective law enforcement on the basis of a police officer’s suspicion.

        Id. at 10-11, 88 S.Ct. at 1874 (footnotes omitted). Later, the Court stated:
      But we deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat — which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures. Nonetheless, the notions which underlie both the warrant procedure and requirement of probable cause remain fully relevant in this context. In order to assess the reasonableness of Officer McFadden’s conduct as a general proposition, it is necessary "first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interest of the private citizen,” for there is "no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.” [Citation omitted]. And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. [____] And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief” that the action taken was appropriate? [Citations omitted].

        Id. at 20-22, 88 S.Ct. at 1879-80 (footnotes omitted). See also id. at 23, 27, 88 S.Ct. at 1881, 1883. Finally, the Court concluded:
      Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

        Id. at 30-31, 88 S.Ct. at 1884.

      . Cf. Commonwealth v. Trunzo, 404 Pa.Super. 15, 589 A.2d 1147 (1991).

      . To determine whether a search or seizure is reasonable, we must balance the individual’s right to be free from unwarranted governmental interference against society’s interest in adequate and safe law enforcement. Commonwealth v. Davidson, 389 Pa.Super. 166, 171, 566 A.2d 897, 899 (1989); Commonwealth v. Hinkson, 315 Pa.Super. 23, 461 A.2d 616 (1983).

      . Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985).

      . Appellant’s brief, at 18. The Commonwealth continued as follows: [Sergeant Palo] had felt similar items in prior searches. Those items had proven to be "rock” methamphetamine. His training, experience, personal knowledge of the defendant, together with the defendant’s behavior which indicated a desire to conceal something from the officer in the area of his body where the hard object was felt, all point to a finding of probable cause. Although near certainty of an object’s incriminatory nature is not necessary, and there need only be a practical, nontechnical probability that incriminating evidence is involved [Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) ], Officer Palo testified that upon feeling the rock-like object, he believed that it was contraband.

        Id.

      . As Marconi recognizes, it would be inconsistent with the purpose underlying Terry to apply ‘‘plain touch” in its purest form to individuals. Appellee’s brief, at 10.

      . The Commonwealth asks this Court to liken the sense of touch to the other senses. For the following reasons, we reject the Commonwealth's rationale.
      “Seeing,” "hearing,” "smelling," and "tasting” are senses that are refined through an officer’s experience. The police are taught to recognize certain sounds, smells and tastes during their training. Commonwealth v. Kendrick, 340 Pa.Super. 563, 571, 490 A.2d 923, 927 (1985) ("... it is important to focus on the circumstances as seen through the eyes of a trained officer and not to view the situation as an average citizen might____ [P]robable cause does not deal in certainties; rather, a court is faced with the factual and practical considerations of everyday life which affect how reasonable and prudent men act.”) (citations omitted).
      Conversely, when an individual feels an object through a pants pocket, and we now confine our analysis to the case at hand, the sense of touch is not so definitive. The structure and shape of a small packet is not unique so as to preclude other options as to what that item might be. In fact, the packet in this case has no discernible characteristics and does not reveal itself in a distinctive way.
      We do not believe that it would be feasible to recognize a tactile equivalent to the plain view doctrine under the rationale advanced by the Commonwealth. Sights, sounds, smells and tastes are generally consistent to the senses. Here, the Commonwealth posits that probable cause arose when a police officer touched an object in the defendant’s pants pocket and thought it to be contraband. During a cursory pat-down for weapons however, it would strain logic to conclude that a small packet could, with any sort of probability, be identified as an element of criminal activity.
      As we stated in the body of this Opinion, we do not hold that under certain circumstances the sense of touch could not be used as an accurate technique of identity. At times, perception through touch, is a tool as definitive as perception through the other senses. However, under the facts before us, we decline to extend the "plain view doctrine” to encompass “plain touch.” Commonwealth v. Stoner, 236 Pa.Super. 161, 344 A.2d 633 (1975) (in discussing “plain smell” this Court recognized that an individual does not have a reasonable expectation of privacy in unlawful pursuits that are readily apparent by the use of ordinary senses). Cf. United States v. Williams, 822 F.2d 1174, 1182, 1184, 1185 (D.C.Cir.1987). See also Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982).

        We note also that in its traditional context, the plain view doctrine is associated with seizures, not searches. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). See Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985); Commonwealth v. Ferrari, 376 Pa.Super. 307, 545 A.2d 1372 (1988); Commonwealth v. Weik, 360 Pa.Super. 560, 521 A.2d 44 (1987); Commonwealth v. Cihylik, 337 Pa.Super. 221, 486 A.2d 987 (1985).

      . Here, we acknowledge the amicus curiae position that the Commonwealth seeks to permit searches of individuals based on an officer’s knowledge of that individual’s reputation. While reputation is a proper factor to be considered in formulating probable cause, it may not be used as the lone basis for that formulation. In short, reputation by itself may not establish probable cause for a search. U.S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).
      Due to our disposition of this case, we do not reach a conclusion as to whether the officer founded his suspicions solely on Marconi’s reputation. Besides, to decide this issue based on the record certified to us would be to infringe on the trial court’s function to weigh and assess witnesses’ credibility.
      Instead, here, we hold only that a prudent person could not have reasonably believed that an offense was being committed at the time of the stop. Thus, probable cause could not have arisen in this case. Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988).

      . The trial court found as a matter of fact that the officer who conducted the instant frisk of appellee first "observed a 1982 Cadillac automobile pull into the parking lot,” Trial Court Opinion at 1; see also N.T. July 11, 1990 at 8, and then “observed the driver of the subject vehicle [appellee] exit from the driver’s side of the vehicle and begin to vomit.” Trial Court Opinion at 2; see also N.T. July 11, 1990 at 10. The trial court found that the officer, suspecting that appellee might have been drinking and driving, approached, and when close enough to the car, recognized appellee, and “knew that the [appellee] had been charged previously with drugs and weapons offenses." Trial Court Opinion at 3; N.T. July 11, 1990 at 16-17. Review of the notes of testimony of the suppression hearing reveals that the officer also testified that upon recognizing appellee, he recalled that appellee had been involved in domestic violence, and that appellee had previously stored a case of grenades at his home. N.T. July 11, 1990 at 16, 17. The officer also testified that immediately before the frisk was conducted he observed appellee lean forward in his seat and reach into his back pocket. Id. at 15. Such facts unquestionably support the conclusion that the officer had a reasonable suspicion that appellee had committed a crime (e.g., driving while under the influence, 75 Pa.C.S.A. § 3731 (1991)), and that he was armed and dangerous.

      . I disagree with the majority’s conclusion that it would be “inconsistent with the purpose underlying Terry," Majority Opinion at 615, n. 16, to recognize the relevance of non-weapon tactile evidence gained during a Terry frisk. The Terry Court concluded that “The sole justification of the search in the present situation [stop and frisk] is the protection of the police officer and others nearby____” Id., 392 U.S. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. By excluding any evidence obtained where the police stopped and frisked without a reasonable fear the suspect was involved in criminal activity and possessing weapons, this purpose is served. Id.; see also Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Where, however, the officer frisks in accordance with Terry dictates and uncovers evidence of contraband other than weapons, no purpose announced in Terry is forwarded by excluding it at trial. See Michigan v. Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201, 1220 (1983) (Where the officer “discover[s] contraband other than weapons, he clearly cannot ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.”); Sibron v. New York, 392 U.S. 40, 79, 88 S.Ct. 1889, 1910, 20 L.Ed.2d 917, 944 (1967) (Harlan, J., concurring) (If the frisk is lawful, “[t]he state is of course entitled to the use of any other contraband that appears.”). If the opposite were true, then no non-weapon evidence which was discovered in plain view during an investigatory stop and protective search for weapons could be used at trial either. This we know to be false. See Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (during protective sweep of house, evidence in plain view was properly seized); Michigan v. Long, supra (seizure of evidence during protective sweep of car was reasonable); Commonwealth v. Henry, 358 Pa.Super. 306, 310, 517 A.2d 559, 561 (1986) (seizure of contraband, discovered by opening metal box as part of a self-protective Terry frisk, upheld as proper); Commonwealth v. Chamberlain, 332 Pa.Super. 108, 115-117, 480 A.2d 1209, 1213-14 (1984) (manilla envelopes, which are commonly used for drug packaging, were properly seized when they were observed in "plain view” during course of a protective Terry search); Commonwealth v. Nastari, 232 Pa.Super. 405, 411-412, 335 A.2d 468, 471-472 (1986) (bags appearing in “plain view” when police officer shined a flash light into defendant’s vehicle as a protective measure were properly seized).

      . In Commonwealth v. Canning, supra, the question before the Court was not whether, based on information derived during the frisk, the officer could further search the suspect; rather, the question before the Canning Court was whether the officer was justified in frisking the subject in the first place, since the officer "did not articulate any specific facts to justify a belief that appellant might be armed and dangerous.” Canning, supra, 402 Pa.Superior Ct. at 441, 587 A.2d at 331. To the extent the Canning Court’s decision may be seen to construe Terry to preclude the use of non-weapon evidence obtained in a search following a lawful stop and frisk, it must be considered obiter dicta.

      . In Texas v. Brown, supra, the Court clarified:
      As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Moreover, our observation in United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), regarding "particularized suspicion,” is equally applicable to the probable-cause requirement:
      The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

        Texas v. Brown, supra, 460 U.S. at 742, 103 S.Ct. at 1543, 75 L.Ed.2d at 514.
      Justice Powell, with whom Justice Blackmun joined, concurred in the plurality decision in Brown. He wrote separately to note:
      If probable cause must be shown, as the Payton dicta suggest, see Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, [1380], 63 L.Ed.2d 639 (1980), I think it is clear that it existed here. Officer Maples testified that he previously had made an arrest in a case where narcotics were carried in tied-off balloons similar to the one at issue here. Other officers had told him of such cases. Even if it were not generally known that a balloon is a common container for carrying illegal narcotics, we have recognized that a law enforcement officer may rely on his training and experience to draw inferences and make deductions that might well elude an untrained person. United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690 [695], 66 L.Ed.2d 621 (1981). We are not advised of any innocent item that is commonly carried in uninflated, tied-off balloons such as the one Officer Maples seized.

        Brown v. Texas, supra, 460 U.S. at 746, 103 S.Ct. at 1545-46, 75 L.Ed.2d at 517.

      . As one commentator has stated,
      Assuming the object discovered in the pat-down does not feel like a weapon, this only means that a further search may not be justified under a Terry analysis. There remains the possibility that the feel of the object, together with other suspicious circumstances, will amount to probable cause that the object is contraband or some other items subject to seizure, in which case there may be a further search based upon that probable cause.
      3 W. LaFave, Search and Seizure, sec. 9.4(c) at 524 (2d ed. 1987); see also I Works of James Wilson, 488-89 (1967) ("[t]he evidence of one sense may be corroborated, in some instances; and in some instance may be corrected, by that of another sense, when both senses convey information concerning the same object,----”).

      . As the court in Ceballos, supra, recognized, “A virtuoso may draw reasonable inferences and suspicion of criminal involvement that would elude an amateur.” Ceballos, supra, 719 F.Supp. at 124.

      . I note that this Court has, in a different context, previously recognized analagous reasoning with regard to the sensory impressions necessary to give rise to an immediate sensory awareness of a tragic incident in determining whether a cognizable cause of action for negligent infliction of emotional distress has been pled. In Neff v. Lasso, 382 Pa.Super. 487, 555 A.2d 1304 (1989), this Court held:
      Our analysis of the foregoing persuasive authorities convinces us that the "sensory and contemporaneous observance” requirement should not be limited to visual observance. Well reasoned opinions in this and other jurisdictions persuade us that the logical and practical focus of the second prong of the Dillon test should be whether the observance was direct and immediate as opposed to indirect and removed and not upon the particular sensory vehicle which gave rise to the awareness of the event and its personal import. It is the immediate sensory awareness and not the source (f.e. visual, tactile, aural, gustatory or olfactory), of the awareness which must control.
      ******
      It may be true that unlike visual observance, aural awareness may rarely, standing alone, give rise to a sufficient awareness of the nature and import of the event to cause severe emotional injury. However, aural perception (hearing the impact) when considered together with prior and subsequent visual observance (seeing Mr. Lasso’s car speeding behind her husband’s pickup and seeing her husband lying unconscious immediately after the impact), may produce a full, direct, and immediate awareness of the nature and import of the negligent conduct____
      ******
      Therefore, we conclude that “sensory and contemporaneous observance” is not limited to visual sensory perception but properly includes an aural sensory awareness as well. Succinctly, it is not the source of the awareness, rather, it is the degree of the awareness arising from all of the individual’s senses and memory which must be determinative of whether the plaintiffs emotional shock resulted from a "sensory and contemporaneous observance" of the accident.

        Id. 382 Pa.Super. at 505-06, 555 A.2d at 1313 (emphasis added).

      . Although these cases deal only with the Fourth Amendment, exhaustive research has uncovered no relevant and material difference between the Fourth Amendment to the United States Constitution and Article I, section 8 of the Pennsylvania Constitution that would, in this context, lead me to conclude that the rationale used in each of these cases is in any way materially different from an application of Article I, section 8 to such facts. Compare Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). Moreover, I note that neither party argues that a distinction between the constitutions in this context exists.

      . See, e.g., New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986).

      . See, e.g., Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

      . See, e.g., United States v. Johns, 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985).

      . See, e.g., Pennsylvania v. Muniz, — U.S.-, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990).

      . See, e.g., Cupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 2004, 36 L.Ed.2d 900, 906 (1973).


source: Caselaw Access Project

author: HUDOCK, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    597 A.2d 631
    Amber Dawn BROCKLEHURST, a Minor by David BROCKLEHURST, Her Father and Natural Guardian and David Brocklehurst and Karen Brocklehurst, Husband and Wife, Appellees, v. David Thomas WATSON and Cheryl A. Watson v. David BROCKLEHURST and Karen Brocklehurst, Husband and Wife, Appellees. Appeal of David Thomas WATSON and Cheryl A. Watson.
    Superior Court of Pennsylvania.
    Submitted March 18, 1991.
    Filed Sept. 5, 1991.
    Reargument Denied Nov. 4, 1991.

      William J. Madden, Sharon, for appellants.
    Robert G. Yeatts, Hermitage, for appellee Amber Dawn Brocklehurst.
    Anna B. Jones, Mercer, for appellee David Brocklehurst.
    Before DEL SOLE, TAMILIA and HUDOCK, JJ.
   HUDOCK, Judge:

Following a verdict in their favor, Appellees filed a motion for delay damages under Pa.R.C.P., Rule 238, 42 Pa.C.S.A. Appellants objected to the award of delay damages because the motion was not timely filed. The trial court considered the motion on the merits and awarded delay damages of $6,998.82.

Initially we must determine whether the trial court erred by considering the untimely filed motion for delay damages. Rule 238(c) reads in its entirety:

Not later than ten days after the verdict or notice of the decision, the plaintiff may file a written motion requesting damages for delay and setting forth the computation.
(1) Within ten days after the motion is filed, the defendant may answer specifying the grounds for opposing the plaintiff’s motion. The averments of the answer shall be deemed denied. If an issue of fact is raised, the court may, in its discretion, hold a hearing before entering an appropriate order.
(2) If the defendant does not oppose the motion, the court shall add the damages for delay to the verdict or decision.
(3) (i) If a motion for post-trial relief has been filed under Rule 227.1 and a motion for delay damages is opposed, a judgment may not be entered until all motions filed under Rule 227.1 and this rule have been decided.
(ii) If no motion for post-trial relief is filed within the ten-day period under Rule 227.1 but the defendant opposed the motion for delay damages, the plaintiff may enter judgment on the verdict or decision. Thereafter, upon deciding the motion for damages for delay, the court shall enter judgment for the amount of the delay damages, if any.

Appellees’ motion for delay damages was filed eighteen (18) days after the verdict instead of within ten (10) days of the verdict as specified by the rule. Appellees’ counsel mistakenly believed that Rule 238 ended with subdivision (b)(2) and due to inadvertence she failed to timely file the motion.

The trial court concluded that the time limits required under Rule 238 should be treated like other time restrictions in the rules of civil procedure. The trial court cited Wittig v. Carlacci, 370 Pa.Super. 584, 537 A.2d 29 (1988), to support its decision. We note that Wittig dealt with post-trial motions filed under Rule 227.1.

In Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987), we held that an issue raised in an untimely supplemental post-trial motion filed without leave of court was not preserved on appeal despite the fact that the trial court had addressed the issue on its merits. However, a petition for allocatur in Sheaff was granted, 518 Pa. 655, 544 A.2d 1342 (1988), and resulted in a per curiam order from the Supreme Court which reversed our holding. Accordingly, in Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988), we determined that an issue was not waived for failure to secure formal allowance of supplemental post-verdict motions nunc pro tunc where the court below nevertheless chose to entertain the claim. In our recent en banc decision of Millard v. Nagle, 402 Pa.Super. 376, 587 A.2d 10 (1991), we discussed at length the purpose of Rule 227.1 and re-affirmed our holding that untimely filed post-trial motions which are addressed on the merits by the trial court will be preserved for appellate review. See also Commonwealth v. Sopota, 403 Pa.Super. 1, 587 A.2d 805 (1991) (en banc) (similar holding and rationale applicable to Rule 1123(a) of the Rules of Criminal Procedure regarding the filing of post-verdict motions). We decline to extend Millard any further. To do so will further erode the time limits of the rules of civil procedure to the point where they will soon become meaningless, and uniformity of application will be lost.

The original purpose of Rule 238, as set forth in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed, sub. nom., Bucheit v. Laudenberger, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982), was (1) to alleviate delay in the courts and (2) to encourage defendants to settle meritorious claims as soon as reasonably possible. (See also 1988 Comment to Pa.R.C.P., Rule 238, 42 Pa.C.S.A.) We find a distinction between the purposes of this Rule and the purposes of post-trial proceedings in general, and accordingly treat such motions differently when filed out of time. Post-trial proceedings are designed to correct prejudicial errors occurring during the litigation. Indeed the treatment of post-trial motions by Rule 238(c)(3) bears out this distinction. Rule 238 is intended to prod insurance carriers into settling cases so as not to clog the courts' dockets, as well as to not unreasonably withhold payments to deserving claimants. While we are more liberal in treating untimely motions which question the integrity of the trial process or claim violation of constitutional rights, we see no need for such liberality when the aim is solely to punish one of the litigants for delay.

We find the reason given by counsel for not filing the motion in a timely mariner, that is, her inadvertence because she only read half the Rule and overlooked the part pertaining to the ten-day time limit, to be an insufficient reason for the trial court to overlook her late filing. The court’s acceptance of that reason amounted to an abuse of discretion requiring reversal.

Judgment reversed. Jurisdiction relinquished.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

Respectfully, I dissent and would affirm the trial court’s finding that the motion for delay damages was not barred as being untimely filed and uphold the award of delay damages in the amount of $6,998.82.

I first consider whether the trial court erred by considering the untimely filed motion for delay damages. Relying on Wittig v. Carlacci, 370 Pa.Super. 584, 537 A.2d 29 (1988), the trial court concluded that the time limits placed on filing a motion for delay damages should be handled as are time restrictions in other procedural rules. In Wittig, supra, post-trial motions pursuant to Pa.R.C.P. 227.1 were filed eighteen days after the trial court’s decision. Nevertheless, the trial court ruled that the motions were timely and reached the merits. We opined that the post-trial motions were timely since the Prothonotary’s docket failed to disclose that notice of the filing of the court’s adjudication was sent to appellants or their attorney. We concluded that the trial court has very broad discretion to consider untimely procedural motions, and since appellees never objected to or alleged any prejudice because of the date on which post-trial motions were filed, the trial court could reach the merits of the motions.

Appellants argue that Wittig, supra and the other cases cited by the trial court are distinguishable from the case sub judice because those cases only permit untimely filed motions where the docket of the prothonotary failed to disclose that notice of the filing of the trial court’s decision was sent to appellants or their attorney. See Plato v. Pittsburgh, 71 Pa.Cmwlth. 463, 454 A.2d 1196 (1983) (Appeal would not be dismissed where appellant failed to file exceptions within ten day period since the prothonotary’s docket did not reveal the date that notice for filing of the chancellor’s decision was sent to the parties or their attorneys); Brodsky v. Philadelphia Athletic Club, 277 Pa.Super. 549, 419 A.2d 1285 (1980), (Trial Court abused its discretion by refusing the filing of exceptions nunc pro tunc where the failure to file timely exceptions was attributable to mistake of counsel and prothonotary’s docket did not disclose that notice of filing of chancellor’s adjudication was sent to appellant’s or their attorney). Appellant believes that the trial court’s ability to consider untimely filed motions should only apply where the parties or their attorneys did not receive notice of the filing of the trial court’s decision. I disagree.

Recently, we decided en banc Millard v. Nagle, 402 Pa.Super. 376, 587 A.2d 10 (1991), which involved the issue of whether this court must consider issues contained in untimely filed supplemental post-trial motions which the trial court chose to address. In that case, the original post-trial motions were timely filed, but supplemental motions were not filed until several months after the verdict. The appellees objected to the untimely motions but failed to demonstrate any prejudice. The trial court decided the issues on their merits.

Based upon the Supreme Court decisions in Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989) and Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (1988), we concluded that the trial court properly considered the motions where there were no specific allegations of prejudice, and the trial court already had the original, timely filed post-trial motions before it; as such, this court would consider, preserved for appellate review, these issues raised in the untimely filed motions. Pa.R.C.P. 126, which was utilized to support our analysis on this issue, provides:

The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

The following reasoning setforth in Millard v. Nagle should also apply in the present case:

... it is appropriate to conclude that whenever original and/or post-trial motions are filed at a time where the trial court has jurisdiction over the matter but outside the ten day requirement of 227.1, the trial court’s decision to consider these motions should not be subject to review by this court unless the opposing party has set forth an objection setting forth specific facts to demonstrate prejudice. If no objection is raised by the opposing party and the trial court rules on the merits of the issues contained in untimely filed motions, the trial court’s action will be considered an implicit grant of leave to the filing of the motions. This decision should not be subject to review by this court, and we should go on to consider the issues contained in these motions on their merits, as did the trial court.
Millard v. Nagle, 402 Pa.Superior Ct. at 381, 587 A.2d at 12.

Furthermore, if an objection to the timeliness of a post-trial motion is filed asserting facts that demonstrate prejudice, the trial court should be required to explain its reasons for deciding to hear the motions on their merits. Millard v. Nagle, supra. This Court will then be able to ascertain whether the trial court has committed an abuse of discretion.

Rule 238 for delay damages specifies that the motion is to be filed within ten days of the verdict similar to the time requirement set forth in Rule 227.1 for post-trial relief. In this respect, Rule 238 is a procedural rule much like Rule 227.1 and it is quite appropriate to apply the rationale set forth in Millard v. Nagle for post-trial relief to Rule 238 for delay damages. Instantly, Appellants objected to the trial court’s considering the motion for delay damages because it was filed eighteen days after the verdict. However, Appellants did not assert any prejudice to them by the late filing. Therefore, the trial court did not abuse its discretion in deciding the motion on its merits.

Furthermore, as I have decided that the trial court properly considered the motion for delay damages, I would find it necessary to determine whether delay damages were properly calculated. Appellants argue that delay damages should not accrue during the period that Appellees sought separate counsel as additional defendants, since the Appellees were brought in as additional defendants over two years prior to the originally scheduled date of trial and Appellants were prepared for trial on that date. They claim that the period of delay from September 1989 to May 1990 was attributable to the Appellees. As noted by the trial court, Rule 238 only excludes delay damages in two instances:

(b) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any,
(1) after which the defendant has made a written offer of
(1) settlement in a specified sum with prompt cash payment to the plaintiff, or
(ii) a structured settlement underwritten by a financially responsible entity, and continued that offer in effect for at least ninety days or until commencement of trial, whichever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of either the specified sum or the actual cost of the structured settlement plus any cash payment to the plaintiff; or
(2) during which the plaintiff caused delay of the trial. 42 Pa.R.C.P. 238.

The Appellees filed the complaint in this case on November 18, 1986. Under Rule 238(2)(i), if the action was commenced before August 1, 1989, delay damages will be awarded for the period of time from the date the plaintiff originally filed the complaint or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision. 42 Pa.R.C.P. 238(a)(2)(i). The complaint was filed more than one year after the accrual of the cause of action. The period from November 18, 1989 until May 24, 1990, when the jury returned the verdict, is the total period to consider for delay damages without excluding any period of time.

The primary purpose of Rule 238 is to alleviate delay in the resolution of cases and lessen congestion in courts. Jistarri v. Fentress, 390 Pa.Super. 209, 568 A.2d 618 (1989). Rule 238 does not permit exclusion from the calculation of delay damage for periods of delay for which no party is responsible as a result of extraneous administrative concerns. Tindal v. S.E. PA. Transportation Authority, 385 Pa.Super. 94, 560 A.2d 183 (1989). “A written offer of settlement is a sine qua non to the tolling of the delay damage period.” Id. 560 A.2d at 187. It is also noted in the comment to Rule 238 that “not every procedural delay is relevant to the issue of delay damages, but only such occurrences as actually cause delay of the trial.” For this reason, the trial court is only to deduct time periods where delay is attributable to the party seeking Rule 238 damages. Tindal, supra. The defendant will be liable for delay damages where the delay cannot be imputed to plaintiff and defendant fails to make an adequate settlement offer. Schrock v. Albert Einstein Medical Center, 527 Pa. 191, 589 A.2d 1103, (1991), Fiorenza v. Kohn, 396 Pa.Super. 1, 577 A.2d 1384 (1990).

In the present case, Appellants never made any offer to settle the case with the Appellees. The minor plaintiff was not the cause of any delay from September 1989 until May 1990. Appellants allege that her parents caused the delay because they failed to immediately obtain separate counsel to represent them when they were joined by Appellants as additional defendants. However, I find that the minor plaintiff should not suffer any penalty due to her parents not having counsel. I agree with the trial court that Appellants should not benefit from these circumstances. Any delay occasioned by additional defendants in bringing a matter to trial should not effect the right of a party to recover delay damages. I therefore conclude that the trial court did not err or abuse its discretion by deciding that the Appellees were not responsible for any delay and that the Appellants are liable for delay damages pursuant to Rule 238.

Accordingly, I dissent.


author: WIEAND, Judge:

text:
    597 A.2d 636
    Georg M. KATZENBERGER, Appellant, v. Hannelore M. KATZENBERGER, Appellee.
    Superior Court of Pennsylvania.
    Argued March 19, 1991.
    Filed Sept. 9, 1991.
    Reargument Denied Nov. 4, 1991.

      Margaret Joy, Pittsburgh, for appellant.
    Hannelore Katzenberger, pro se.
    Before ROWLEY, President Judge, and WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

In this divorce appeal, we are again asked to determine what portion of a defined benefit pension plan is to be deemed marital property for purposes of effecting equitable distribution by the deferred distribution method.

Georg and Hannelore Katzenberger were married on December 23, 1963, separated on July 23, 1981 and divorced on December 20, 1984. The court retained jurisdiction over the parties’ economic claims, however, and, on November 8, 1985, entered a decree nisi which, inter alia, awarded to wife one-half of husband’s pension benefits. Neither party filed exceptions to the decree, and counsel for the parties thereafter submitted proposed Qualified Domestic Relations Orders consistent with the court’s decree.

Georg Katzenberger began his employment as a pilot with Mohawk Airlines in 1968, Mohawk subsequently merged with U.S. Air, and Georg has continued his employment with U.S. Air until the present time. The U.S. Air pension is a defined benefit plan and is qualified under the Employment Equity Act of 1984. The amount of a participating employee’s pension is determined by multiplying the employee’s final average earnings by his or her years of credited service to arrive at an amount which is then multiplied by an appropriate retirement plan factor which is derived by referring to a prepared company schedule. Final average earnings equal the participating employee’s highest average earnings for any thirty-six (36) consecutive months out of his or her last one hundred twenty (120) months of employment.

Husband-appellant proposed that, although distribution of his pension was to be deferred, the value of his pension benefit should be determined by his final average earnings as of the date of separation, i.e., July 23, 1981. The court, however, entered an order which did not determine the value of pension benefits as of the date of separation but provided that the deferred date for payment was to be elected by the wife at any time after July 1, 1989. Wife’s one-half interest therein was to be multiplied by a fraction whose numerator was thirteen (13), the total time during which husband participated in the plan during marriage, and whose denominator was a number representing the number of years and months from husband’s first year of service to the date of the commencement of payments to wife. Husband filed exceptions, which were denied, and then appealed. He contends that the use of the deferred distribution method for valuing his pension as of the date on which appellee-wife elects to commence payment will inequitably distribute pension benefits which have accrued after the date of separation and which are not marital property.

We adhere to the rule that the denominator of the coverture fraction is equal to the total period of time the employee-spouse participated in the pension benefit program. See: Lyons v. Lyons, 401 Pa.Super. 271, 280, 585 A.2d 42, 47 (1991); Braderman v, Braderman, 339 Pa.Super. 185, 198, 488 A.2d 613, 619 (1985); King v. King, 332 Pa.Super. 526, 533, 481 A.2d 913, 916 (1984). We recognize that our courts have varied the definition of the denominator as either “the total period the employee participated in the benefits program,” Braderman v. Braderman, supra; King v. King, supra, or “the total period of time the employee-spouse was accruing benefits.” Lowry v. Lowry, 375 Pa.Super. 382, 404, 544 A.2d 972, 983 (1988). In many instances, there will be no difference between these two figures. Where there is a difference, however, the denominator adopted in Lyons v. Lyons, supra, will produce the more accurate result.

Herein, wife is permitted to begin receiving payments from the pension at any time after July 1, 1989. However, Georg will not have reached age 60, the required retirement age for pilots, until July 1, 1991. There is no indication in the record that Georg intended to retire prior to his sixtieth birthday. The court has set the denominator without regard for the fact that Georg will have to participate in the benefit program another two years to receive his pension benefits.

In Berrington v. Berrington, 409 Pa.Super. 355, 598 A.2d 31 (1991; filed of even date herewith), we determined that only that pension which is available on the date of separation is marital property and that enhanced benefits purchased by employer or employee contributions following separation are not marital property. Our decision was based upon the express language of Section 401(e) of the Divorce Code of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 401(e). The decision held that pension benefits available for distribution according to the deferred distribution method must be the same as those available for distribution according to the immediate offset method. Thus, although the non-employee spouse’s economic circumstances may be considered by a court in making distribution under Section 401(d) of the Divorce Code, supra they may not be considered in determining that which constitutes marital property.

For the same reasons, we hold that the order entered in the instant case was erroneous. The pension benefits available for distribution are those which would have been payable if the husband-appellant had retired on the date of separation.

Reversed and remanded for the entry of an order in accordance with the foregoing opinion. Jurisdiction is not retained.

      . Hannelore Katzenberger is employed by Mobay Chemical Company . as a bilingual secretary.

      . This section of the Divorce Code has now been codified at 23 Pa.C.S. § 3501(a).

      . This section is now codified at 23 Pa.C.S. § 3502(a).