author:
WIEAND, Judge:
      JOHNSON, Judge,

text:
    604 A.2d 263
    In re Revocation of Revocable Trust of Harold and Marie FELLMAN, dated December 13, 1989. Appeal of Harold FELLMAN and Marie Fellman.
    Superior Court of Pennsylvania.
    Argued Aug. 21, 1991.
    Filed March 3, 1992.

      William L. Stang, Pittsburgh, for appellants.
    Maurice M. Braunstein, Pittsburgh, for participating party.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

In this proceeding to force a recalcitrant trustee to assist the settlors in terminating a revocable trust, the orphans’ court denied relief and directed the parties to submit to arbitration the issue of the competency of the settlors. After careful review and for the following reasons, we reverse.

Harold and Marie Fellman, husband and wife, having created a revocable trust, transferred their assets to co-trustees, consisting of themselves and their nephew, Sidney J. Fellman, for the benefit of the settlors during their lifetimes. Paragraph 7 of the trust agreement provided that following the death of Harold and Marie Fellman, “the entire remaining trust fund after payment of [certain] special bequests set forth above in this § 7 shall be held and administered for the benefit of the Grantors’ nephew, SIDNEY J. FELLMAN.” The right to revoke the trust was reserved by the following language:

§ 1. Rights of the Grantor During His Lifetime.

The Grantor shall have the following rights while he is alive:

(a) The Grantor reserves the right at any time or times during his lifetime by written notice to the Trustee to:
(i) revoke all or any part of this Agreement;
(ii) withdraw all or any part of the assets belonging to the trust estate; or
(iii) alter or amend any term or provision of this Agreement, except the Grantor shall have no right or power to change the duties or immunities of the Trustee without the Trustee’s written consent.
A complete revocation of this Agreement shall vest in the Grantor all assets then possessed by the Trustee. Upon the Grantor’s request, the Trustee shall execute and deliver to the Grantor any and all instruments required to transfer to the Grantor any trust asset to which the Grantor may be entitled.

On July 18, 1990, Harold and Marie Fellman revoked the trust and elected to withdraw all assets belonging to the trust. They requested that Sidney J. Fellman join with them to “execute and deliver to the undersigned as grantors any and all instruments required to transfer to the Grantors all of the assets of the Trust.” Sidney Fellman refused.

The settlors then caused a citation to be issued to Sidney Fellman directing him to show cause why he should not assist in re-delivering the trust assets to Harold and Marie Fellman. Sidney answered by averring that the settlors were physically and/or mentally impaired and by moving for physical and mental examinations of the settlors. The orphans’ court denied relief, holding that it lacked jurisdiction because of an arbitration clause in the trust agreement which provided as follows:

§ 29. Arbitration.
Any controversy or claim arising out of or relating to this Trust Agreement, or any breach thereof, shall be to the extent permitted by law settled by arbitration in the City of Miami, Florida, in accordance with the rules then obtaining of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction thereof.
The above § 7 and § 28 require that a dispute concerning the competency of a beneficiary or Trustee be arbitrated. The Grantor recognizes that the issue of the competency of the Grantor, his spouse, his children and other descendants, all of whom are potential beneficiaries and Trustees hereunder, involves not only the financial affairs of the Trust but the family relationships among Grantor, his spouse, his children and other descendants and it his intention whenever possible to avoid litigation on the issue of competency and to resolve that issue entirely through the process of arbitration.

When the settlors’ exceptions to the court’s decree were dismissed, they appealed. They contend that: (1) they reserved the right to revoke the trust, and Sidney, a co-trustee, cannot prevent them from exercising the power so reserved, and (2) their competency is not an arbitrable issue.

In Pennsylvania, it is well settled that a settlor may revoke or amend a revocable trust in accordance with the terms of the trust. In re Insurance Trust Agreement of Kaufmann, 460 Pa. 24, 28, 331 A.2d 209, 211 (1975); Damiani v. Lobasco, 367 Pa. 1, 6, 79 A.2d 268, 271 (1951). A settlor has the power to revoke a trust if and to the extent he has reserved such power by the terms of the trust. Restatement (Second) of Trusts § 330(a). However, if the settlor has reserved a “power to revoke the trust only in a particular manner or under particular circumstances, he can revoke the trust only in that manner or under those circumstances.” Restatement (Second) of Trusts § 330(j).

In the instant case, the power to revoke the trust was reserved clearly and unconditionally. It is equally clear that the settlors gave the necessary notice and otherwise proceeded as required by the terms of the trust agreement. It would appear, therefore, that the settlors effectively revoked the trust, and Sidney Fellman should have cooperated in terminating the same. He responds, however, by asserting that the settlors are incompetent to act.

As a general rule, the absolute right to revoke a revocable trust is subject to the limitation that the settlor must be competent at the time of acting to revoke the trust. In Florida National Bank of Palm Beach County v. Genova, 460 So.2d 895 (Fla.1984), the court expressed the principle as follows:

The courts have no place in trying to save persons such as [the settlor], the otherwise competent settlor of a revocable trust, from what may or may not be her own imprudence with her own assets. When she created this trust, she provided a means to save herself from her own incompetence, and the courts can and should zealously protect her from her own mental incapacity. However, when she created this trust, she also reserved the absolute right to revoke if she were not incompetent. In order for this to remain a desirable feature of a trust instrument, the right to revoke should also be absolute.

Id. at 898 (emphasis added). Thus, “[although the settlor has reserved a power of revocation, he cannot revoke the trust if he lacks mental capacity at the time when he attempts to revoke it.” Scott on Trusts, § 330 (1989). Court decisions are uniformly in accord. See: Montana Conference of Seventh-Day Adventist Church v. Miller, 192 Mont. 468, 628 P.2d 1100 (1981) (combination appointment of personal guardian and conservator for settlor’s estate does not make settlor incapable of revoking revocable trust where evidence established that settlor competent at time of revocation); First National Bank of Cincinnati v. Oppenheimer, 92 Ohio Law Abs. 233, 190 N.E.2d 70 (1963) (revocation ineffective where settlor was both mentally and physically incompetent to understand or transact business because of injuries sustained in automobile accident); Kemmerer v. Kemmerer, 74 Ohio Law Abs. 65, 139 N.E.2d 84 (1956) (ineffective revocation where settlor did not overcome presumption of insanity for reasonable length of time after prior adjudication of incompetency).

If the settlors in the instant case can be barred by incompetency from revoking the trust, in what forum should the issue of competency be determined? More specifically, is the alleged incompetency of the settlor an appropriate issue for arbitration? After careful consideration and review, we conclude that the settlor’s alleged incompetency is not an appropriate issue for arbitration.

Arbitration agreements are generally encouraged as a prompt, economical and adequate solution of controversies. See: Rodriguez de Ouijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). In the context of incompetency proceedings, however, individual rights are involved which, in Pennsylvania, are controlled by statute. Pursuant to the Decedents, Estates, and Fiduciaries Code at 20 Pa.C.S. § 5501 (“Code”), the Legislature has adopted a statutory framework which serves to protect an individual who may be incompetent. One such provision establishes the following safeguards: (a) notice to the alleged incompetent, (b) a hearing at which good cause for a finding of incompetence must be shown, (c) a hearing with a jury if requested by the alleged incompetent, and (d) the presence of the alleged incompetent at the hearing in the absence of exceptional circumstances. 20 Pa.C.S. § 5511. In the event incompetency is found to exist, the statute provides for the appointment of a guardian who is accountable to the court and who may be required to file a bond. See: 20 Pa.C.S. § 5515.

The importance of statutory incompetency proceedings was recognized by the Supreme Court in In Re Myers Estate, 395 Pa. 459, 150 A.2d 525 (1959), where the Court was called upon to interpret the Incompetents’ Estates Act of 1955. The Court said:

In reviewing the propriety of the action of the court below, we must bear in mind that this statute — as every other statute of like nature — which empowers a court to declare an individual mentally incompetent and to place such individual’s business affairs in the hands of another for management and care is “a dangerous statute easily capable of abuse * * Mental capacity and competency are to be presumed and before any person shall be deprived of the right to handle his or her own property and manage his or her affairs there must be clear and convincing proof of mental incompetency and such proof must be preponderating.

Id., 395 Pa. at 462, 150 A.2d at 526 (emphasis in original) (citations omitted).

The rights guaranteed by the Code include many of the essentials required by concepts of due process, including “notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause.” Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 130, 394 A.2d 932, 945 (1978). However, in an arbitration proceeding, the rights protected by constitutional notions of due process or the Code are not guaranteed. In an arbitration proceeding, it is not unusual to find that the “rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, and testimony under oath, are often severely limited or unavailable.” Alexander v. Gardner-Denver Company, 415 U.S. 36, 57-58, 94 S.Ct. 1011, 1024, 39 L.Ed.2d 147, 163 (1974).

While there is no doubt that arbitration may be an effective and efficient mechanism for handling disputes in a variety of contexts, arbitration is not an appropriate vehicle for determining the incompetency of an individual. In a case in which it decided the arbitrability of a civil rights dispute, the Supreme Court of the United States stated as follows:

Arbitral procedures, while well suited to the resolu-, tion of contractual disputes, make arbitration a comparatively inappropriate forum for the resolution of rights created by Title VII. This conclusion rests first on the special role of the arbitrator, whose task is to effectuate the intent of the parties rather than the requirements of enacted legislation. Where the collective-bargaining agreement conflicts with Title VII, the arbitration must follow the agreement. To be sure, the tension between contractual and statutory objectives may be mitigated where a collective-bargaining agreement contains provisions facially similar to those of Title VII. But other facts may still render arbitral processes comparatively inferior to judicial processes in the protection of Title VII rights. Among these is the fact that the specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land. Parties usually choose an arbitrator because they trust his knowledge and judgment concerning the demands and norms of industrial relations. On the other hand, the resolution of statutory or constitutional issues is a primary responsibility of courts, and judicial construction has proved especially necessary with respect to Title VII, whose broad language frequently can be given meaning only by reference to public law concepts.
Moreover, the factfinding process in arbitration usually is not equivalent to judicial factfinding. The record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, and testimony under oath, are often severely limited or unavailable. And as this Court has recognized, “[arbitrators have no obligation to the court to give their reasons for an award.” Indeed, it is the informality of arbitral procedure that enables it to function as an efficient, inexpensive, and expeditious means for dispute resolution. This same characteristic, however, makes arbitration a less appropriate forum for final resolution of Title VII issues than the federal courts.

Alexander v. Gardner-Denver Company, supra at 56-58, 94 S.Ct. at 1024-1025, 39 L.Ed.2d at 163-164. (emphasis added) (citations omitted) (footnotes omitted).

In our sister jurisdiction of New York, courts have refused to honor arbitration clauses in a variety of contexts for public policy reasons. See: Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 386 N.Y.S.2d 831, 353 N.E.2d 793 (1976) (arbitrator’s award of punitive damages as purely private remedy vacated as violative of public policy); Matter of Aimcee Wholesale Corp. [Tomar Products, Inc.], 21 N.Y.2d 621, 289 N.Y.S.2d 968, 969, 237 N.E.2d 223, 224 (1968) (“The enforcement of our State’s antitrust policy cannot be left to commercial arbitration, which serves a vital and constructive role in the business world, but is not a fit instrument for the determination of antitrust controversies which are of such extreme importance to all of the people of this State.”); Durst v. Abrash, 22 A.D.2d 39, 253 N.Y.S.2d 351, aff'd, 17 N.Y.2d 445, 266 N.Y.S.2d 806, 213 N.E.2d 887 (1965) (enforcement of usurious loan agreement); Matter of Knickerbocker Agency [Holz], 4 N.Y.2d 245, 173 N.Y.S.2d 602, 149 N.E.2d 885 (1958) (claim concerning liquidation of insolvent insurer); Matter of Erdheim v. Selkowe, 51 A.D.2d 705, 380 N.Y.S.2d 20 (1976) (matters of attorney discipline).

If we were to hold that issues of competency could appropriately be submitted to arbitration, we would be faced with several unwanted ramifications. In the instant case, for example, would a determination of the settlors’ incompetency be entered as a final judgment in the records of the Court of Common Pleas? May the arbitrators appoint a guardian of the estate and of the person? If not, may a court rest the appointment of a guardian on the arbitrators’ finding of incompetency or must a new court hearing be held? If so, may the guardian commit the incompetent to a hospital or select the type of medical treatment and lifestyle the incompetent will be permitted? How will the guardian’s decisions be reviewed?

After careful consideration, we conclude that only the judicial system is equipped to handle incompetency hearings and the legal ramifications following a determination of incompetency. As a matter of public policy, issues of incompetency cannot be submitted to arbitration. To the extent that Paragraph 29 of the Fellman trust agreement provides for arbitration to determine the competency of the settlors, it cannot be enforced. Only a court of competent jurisdiction can adjudicate a person incompetent.

We hold, therefore, that the arbitration clause in the Fellman Trust Agreement is ineffective to deprive the Orphans’ Court of Allegheny County of jurisdiction to hear and decide the issue of the settlors’ alleged incompetency to revoke the trust, if the parties are otherwise properly before the court. Our holding is no broader than that. This was the issue framed by the parties on appeal, and we make no attempt to render an advisory opinion regarding other issues which may or may nor hereafter arise in the Orphans’ Court proceedings.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

The revocable trust agreement before us on this appeal was executed on December 13, 1989 at Palm Beach Gardens, Florida by Harold Fellman and Marie Fellman as Grantors. The agreement expressly provides that controversies arising out of the agreement shall be settled by arbitration in the City of Miami, Florida. It further expressly sets forth that the Grantors are residents of the State of Florida, and all questions shall be judged and resolved in accordance with Florida law.

The order which we are called upon to review does nothing more than deny a citation to certain parties who sought to have issues surrounding the revocation of the trust agreement litigated in Pennsylvania. I cannot find any abuse of discretion on the part of the Honorable Robert A. Kelly, who denied the citation, or the Orphans’ Court Division of the Court of Common Pleas of Allegheny County, which dismissed the exceptions to Judge Kelly’s order. I therefore must vigorously dissent from the Opinion of my colleague, Judge Wieand, which would flaunt both the express terms of the trust agreement and the expressed wishes of the parties.

Appellate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion. Lower Frederick Township v. Clemmer, 518 Pa. 313, 322, 543 A.2d 502, 507 (1988); Sack v. Feinman, 489 Pa. 152, 165-66, 413 A.2d 1059, 1066 (1980) decided after remand 495 Pa. 100, 432 A.2d 971 (1981). The scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious. Id.

The revocable trust agreement sets forth, in § 25:

§ 25. Fidelity Bond and Governing Law.
This Agreement has been drawn and executed in the State of Florida, and the Grantor, the Trustee, and most, if not all, of the prospective beneficiaries identified herein are residents of the State of Florida. All questions concerning the meaning, intention or validity of this Agreement, and all questions relating to performance hereunder, shall be judged and resolved in accordance with the laws of said state.

The Harold and Marie Fellman Revocable Trust, dated December 13, 1989, page 26; Petition for Citation filed July 25, 1990, Exhibit A; R.R., page 36a. (emphasis added). At § 29, the agreement goes on to set forth, in pertinent part:

§ 29. Arbitration.

Any controversy or claim arising out of or relating to this Trust Agreement, or any breach thereof, shall be to the extent permitted by law settled by arbitration in the City of Miami, Florida, in accordance with the rules then obtaining of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction thereof.
The above § 7 and § 28 require that a dispute concerning the competency of a beneficiary or Trustee be arbitrated. The Grantor recognizes that the issue of the competency of the Grantor, his spouse, his children and other descendants, all of whom are potential beneficiaries and Trustees hereunder, involves not only the financial affairs of the Trust but the family relationships among Grantor, his spouse, his children and other descendants and it is his intention whenever possible to avoid litigation on the issue of competency and to resolve that issue entirely through the process of arbitration.

Id. at pages 32-33; R.R. at pages 42a-43a (emphasis added).

In the case before us, Sidney J. Fellman, as a named Trustee, declined to cooperate in the redelivery of trust assets to Harold and Marie Fellman, separate Grantors under the Agreement and also co-trustees. Sidney Fellman advanced the alleged physical and/or mental impairment of the Grantors as the basis for his refusal to join in the reversion of the assets. As Judge Wieand observes in his majority opinion, Florida law requires that the grantor be competent at the time the grantor acts to revoke a trust. Florida National Bank of Palm Beach County v. Genova, 460 So.2d 895 (Fla.1984).

The majority concludes that “only the judicial system is equipped to handle incompetency hearings and the legal ramifications following a determination of incompetency.” It goes on to hold that, “as a matter of public policy, issues of incompetency cannot be submitted to arbitration.” Majority opinion, 267. I must vigorously dissent.

First, neither the order of October 4, 1990 nor the order of November 8, 1990 directed the parties to submit to arbitration as the majority states in its opinion. The order of October 4, 1990 did nothing more than deny the citation sought by the petitioners. The order of November 8, 1990 merely dismissed the exceptions filed to the earlier order. The issue before this court therefore is not, as the majority would posit it, in what forum should the issue of competency be determined? The issue is more appropriately, whether the chancellor abused his discretion by refusing to issue a citation where the revocable trust agreement expressly provided that disputes concerning the competency of the Grantors must be decided under Florida law and through arbitration.

The Petition for Citation contains averments concerning the residency of the Grantors which is both expressly denied by the respondent Trustee and at odds with express averments contained in the Revocable Trust. The Petition does not set forth any reason why the citation was sought in Allegheny County, Pennsylvania in the face of those provisions of the agreement sought to be revoked which provide for the application of Florida law and the utilization of the Florida system of arbitration.

The trial court found no authority on the question of whether an arbitrator may determine issues of competency. I do not read the majority opinion of my colleague, Judge Wieand, as finding otherwise. The majority examines New York law on a variety of matters not involving competency, and cites to the United States Supreme Court for the principle that the resolution of statutory and constitutional issues is a primary responsibility of courts. I find none of this helpful in determining whether, under Florida law, arbitration of the issue brought under the Fellman Trust can be accomplished.

The majority would reverse and remand “for further proceedings.” The majority does not give any guidance to the trial court upon remand concerning the proper interpretation of the trust agreement. Is a Pennsylvania orphans’ court judge to apply Pennsylvania law (just announced by this panel) in construing a Florida document which states, in no uncertain terms, that Florida law is to be applied? If Pennsylvania law is to be applied, would this be because it is the same as Florida law? Similar to Florida law? Or because we do not care how Florida would decide the same question? If the Allegheny County Orphans’ Court Division tries to comply with the directive(?) of the majority, should it only decide the question of Grantor competency, since public policy would not thereby be offended, and leave other issues in dispute for resolution by the Florida arbitration system? Should the Pennsylvania trial court assume that, arguably, this court is seeking to announce Florida law? Need the Florida courts grant full faith and credit to any decision of this court which does not attempt to consider Florida law while interpreting public policy issues surrounding a Florida document?

Since Harold Fellman and Marie Fellman are now residents of Florida, how shall the Orphans’ Court proceed to consider their competency? The Petition did not request a determination of competency. The prayer of that Petition merely seeks to force Sidney J. Fellman,.as co-trustee, to cooperate in the redelivery of assets to the Grantors, and to compel Pittsburgh National Bank, Paine Weber, Landmark Savings and NCNB to redeliver assets to the Grantors. How does the court abuse its discretion in declining to do something that the petitioner has not even requested?

All of these questions could be avoided. On December 24, 1991, counsel for the Grantors, appellants, filed a Joint Application to Discontinue Appeal with this court which was consented to by Sidney J. Fellman, appellee pro se. The Joint Application avers that all of the parties to this dispute have agreed to settle the matter and have entered into a written settlement agreement dated September 16, 1991. The only action taken by the orphans’ court which we could review is its denial of the citation. Since it now appears that the Grantors do not require a citation, I would refrain from seeking to pronounce new law where it is neither invited nor required. See Pa.R.A.P. 1973, Discontinuance.

Hence, this dissent.

      . Act of February 28, 1956, P.L. (1955) 1154, as amended by the Act of July 11, 1957, P.L. 794, 50 P.S. § 3101. This has been assimilated in Chapter 55 of the present Code entitled "Incompetents.”

      . This is an issue of Pennsylvania policy. Contrary to the argument made by the author of the dissenting opinion, it does not require an interpretation of Florida law.

      . After this opinion had been prepared, the parties advised the Court that terms of settlement had been agreed upon and requested leave to discontinue the appeal. Because of the lateness of the request, see: Marino v. Marino, 411 Pa.Super. 424,-, 601 A.2d 1240, 1243 (1992) and because of the significant policy issue involved, i.e., the arbitrability of a person’s alleged incompetency, we declined to grant permission to discontinue the appeal.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    604 A.2d 270
    Eileen BUTLER, Administratrix of the Estate of Patrick Butler Deceased, Appellant, v. KIWI, S.A., Dyna Tour Corporation, Cycle City, Dyna Group International, Romaha Importers and Distributors, Inc.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1992.
    Filed March 4, 1992.

      Don P. Foster, Philadelphia, for appellant.
    Austin Hogan, Philadelphia, for appellees.
    Before CIRILLO, TAMILIA and FORD ELLIOTT, JJ.
   CIRILLO, Judge:

Appellant, Eileen Butler, (“Butler”) Administratrix of the Estate of Patrick Butler, deceased, appeals from the judgment entered in the Court of Common Pleas of Delaware County. We affirm.

Patrick Butler (“Patrick”) was killed when he lost control of his motorcycle and spun into the opposing line of traffic. Patrick’s motorcycle collided with a motor vehicle and the front wheel of the vehicle rolled over Patrick’s head, resulting in fatal injuries.

Butler brought suit against various defendants. Among those defendants was Kiwi, S.A., the manufacturer of the “K-12” helmet which Patrick was wearing at the time of the accident. At trial Butler’s primary theories of liability were product defect and strict liability under the Restatement (Second) of Torts, § 402A. Specifically, Butler argued that the “lock and release” mechanism on Patrick’s motorcycle helmet was defective in that it released prematurely and caused the helmet to be removed during the impact. Butler contended that had the mechanism operated properly, the helmet would have remained on Patrick’s head and he would have survived the accident. The defendants contended that the fatal injuries occurred when the car and tire rolled over Patrick’s helmeted head, that the crushing force squeezed the helmet off his head, and that the helmet was not intended to protect against damage by a crushing mechanism.

Following trial, the jury found that the helmet was defective. The jury determined, however, that the defect in the motorcycle helmet was not the proximate or legal cause of Patrick’s death. Judgment was entered on the jury’s verdict. Butler filed a motion for a new trial. That motion was denied and this appeal followed.

Butler raises the following issues for our review:

1. Whether the trial court committed an error of law by failing to instruct the jury adequately on appellant’s burden of proof and to define preponderance of the evidence?
2. Whether the trial court abused its discretion when it permitted the appellees’ expert accident reconstructionist to testify to opinions of medical causation beyond his expertise?
3. Whether the trial court committed an error of law when it permitted appellees’ expert accident reconstructionist to testify to matters beyond the scope of his expert’s report?
4. Whether the trial court committed an error of law when it refused to instruct the jury on appellant’s decedent’s habit and custom of wearing his motorcycle helmet and buckling his motorcycle helmet retention systems?

When reviewing the trial court’s denial of a motion for a new trial, we are limited to determining whether there was a clear and palpable abuse of discretion or error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987). A new trial will only be awarded where the verdict is so contrary to the evidence as to shock one’s sense of justice. Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 439-41, 539 A.2d 871, 875 (1988).

Butler first contends that the jury was not properly instructed on the concept of “preponderance of the evidence.” The trial court refused Butler’s request to instruct the jury in accordance with the Pennsylvania Suggested Standard Jury Instructions-Civil. Instead, the court paraphrased the standard jury instruction. The suggested jury instruction explains the plaintiff’s burden of proving a claim by a preponderance of the evidence as follows:

... The evidence establishes a contention by a fair preponderance of the evidence if you are persuaded that it is more probably accurate and true than not---- If you are persuaded that these propositions are more probably true than not true, your verdict must be for the plaintiff. Otherwise, your verdict should be for the defendant.

Suggested Jury Instructions, Section 5.50 (emphasis added). The court instructed the jury as follows:

... The fair preponderance of the evidence, ladies and gentlemen, on any given issue is when you are convinced, after your review of the evidence, that it is more probably so than not so. The question then is it more probably so than not so. If you are convinced that it is more probably so, more probably true and accurate than not true and accurate, more probably so than not so, then, you are convinced by a fair preponderance of the evidence ... In other words, after you have reviewed all of the evidence ... offered by both sides of this case, and after you have reviewed all of that evidence, are you convinced by a preponderance of the evidence as to those matters[.]

(R. 366A-368A) (emphasis added).

When reviewing a claim that the trial court erred in instructing the jury, the scope of appellate review is whether the court committed a clear abuse of discretion or an error of law which controlled the outcome of the case. Williams v. Philadelphia Transportation Company, 415 Pa. 370, 203 A.2d 665 (1964). This court will look at the charge in its entirety against the background of evidence in the case to determine whether error was made and whether it was prejudicial. The court will not consider only portions taken out of context, Reilly by Reilly v. Southeastern Pennsylvania Transportation Auth., 507 Pa. 204, 489 A.2d 1291 (1985); Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984), nor will it reverse for isolated inaccuracies. Noble C. Quandel Co. v. Slough Flooring, Inc., 384 Pa.Super. 236, 558 A.2d 99 (1989).

Here, Butler challenges the court’s substitution of the term “persuaded” with the term “convinced.” After reviewing the trial court’s charge as a whole, we find that the two words are synonymous in the context in which they are used. Contrary to Butler’s argument, the term “convince” as used in the court’s instruction did not elevate the burden of proof to “clear and convincing” evidence. Butler’s argument improperly focuses upon these two terms in a context in which they may be used interchangeably, when, in fact, the central idea of the concept of “preponderance of the evidence” is that the proposition in question is “more probable than not.” The court’s charge as given more than adequately conveyed this idea to the jury.

Furthermore, the suggested standard jury instructions have not been adopted by our supreme court and therefore are not binding, even where a party specifically requests the court use them. As their title suggests, the instructions are guides only. The trial court need not follow them verbatim and may choose to ignore them entirely. The court is free to formulate and express its charge as it sees fit, provided the charge fairly and accurately apprises the jury of the relevant law and guides the jury in its deliberations. See Mackowick v. Westinghouse Electric Corp., 373 Pa.Super. 434, 441, 541 A.2d 749, 752 (1988) (en banc), affirmed, 525 Pa. 52, 575 A.2d 100 (1990).

Butler also claims that the court improperly failed to provide the jury with an explanation of the “balance scale” analogy when it instructed the jury as to the plaintiff’s burden of proof. As we stated previously, our review of the instruction as a whole discloses that the jury was adequately and accurately instructed on the plaintiff’s burden of proof. The court is not required to utilize the exact language a party has requested. Cooper v. Burns, 376 Pa.Super. 276, 545 A.2d 935 (1988). The court was free to choose its own form of expression and was not required to accept the specific language requested by counsel. Butler was not prejudiced by the court’s failure to use the precise language, or analogy, requested. Id. Viewing the charge as a whole, we find that the trial court committed no error of law or abuse of discretion. Williams, supra.

Next, Butler contends that the trial court erred in failing to instruct the jury on Patrick’s “habit and custom” of wearing his helmet and buckling the retention system. During trial, Patrick’s mother and brother both testified that Patrick was safety conscience and in the habit of buckling his motorcycle helmet. In addition, another witness testified that she saw Patrick just prior to the accident with his helmet on and that she did not see any straps hanging down from the helmet, indicating, of course, that Patrick had fastened the buckle on the helmet. Although the court refused the specific habit instruction, the court properly instructed the jury on the concept of circumstantial evidence. In addition, the court specifically instructed the jury to consider all of the evidence presented. The court may properly refuse a requested instruction when the substance of that request has already been given in either a general or specific charge. See Werner v. Quality Service Oil Co., 337 Pa.Super. 264, 486 A.2d 1009 (1984); see also Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985). Butler claims that because the jury found that the product was defective, but that the defect did not cause the accident, that the jury necessarily concluded that Patrick was remiss in his safety precautions and that this was the cause of his fatal injuries. Although this is a plausible argument, it cannot be said the failure to instruct on habit controlled the outcome of the case or prejudiced Butler. Williams, supra. There is no evidence indicating that Patrick’s helmet was not buckled. This was not the defense’s theory. The defense’s contention at trial was not that Patrick failed to buckle his helmet, but rather that the compressing forces from the motor vehicle tire and the ground caused the fatal injuries while the helmet was on Patrick’s head. In fact, the defense’s expert specifically testified that the helmet was subjected to crushing forces, the motor vehicle tire on the left side of the helmet and the pavement on the right side. These forces were resisted by Patrick’s head, indicating that “the helmet ... was on [Patrick’s] head at that time.” The court’s refusal to honor requests for points for charge which would tend to confuse the jury will not constitute grounds for a new trial. See 10 Standard Pennsylvania Practice § 62:50; see also Ebner v. Ewiak, 335 Pa.Super. 372, 484 A.2d 180 (1984) (trial court did not err in refusing jury instruction where the requested points were based on an erroneous assumption that the evidence showed the existence of two contracts instead of one). Consequently, we find no error or prejudice in the court’s refusal to charge the jury on habit. Williams, supra; Werner, supra.

Finally, Butler argues that the trial court abused its discretion and committed an error of law when it permitted the defense’s expert accident reconstructionist to testify beyond his expertise and beyond the scope of his expert report. “[T]he opinion testimony of an expert must be narrowly limited to evidence of which he has personal knowledge, which is uncontradicted on the record or which is proffered on an assumed state of facts reasonably shown by the record.” Kozak v. Struth, 515 Pa. 554, 558-60, 531 A.2d 420, 422 (1987), citing Houston v. Canon Bowl, Inc., 443 Pa. 383, 385, 278 A.2d 908, 910 (1971); Battistone v. Benedetti, 385 Pa. 163, 170, 122 A.2d 536, 539 (1956); Jackson v. United States Pipe Line Co., 325 Pa. 436, 440, 191 A. 165, 166 (1937). Professor Hugh Hurt, the defense’s expert, was qualified as an expert in the field of aeronautical engineering. Professor Hurt’s particular field of research and experience was in accident analysis, which includes accident and injury causation, primarily in the areas of motorcycles and head protection devices. He has assisted in the development of head protection for the United States Air Force, and has researched this field at the University of Southern California for over forty years, the past fifteen years of which have been focused upon motorcycles and helmets. Professor Hurt testified that he has investigated over 1,500 motorcycle accidents, on the scene, to determine causes of motorcycle accidents and injuries, and has conducted a study for the U.S. Department of Transportation in which he supervised the development of a special head and neck autopsy procedure in the evaluation of 300 fatal motorcycle accidents. Professor Hurt indicated that he was familiar with the basic structure of the neck and head and of the basic anatomy of the brain.

On cross-examination, Professor Hurt clarified that he was not a medical doctor, and not an expert in brain injuries. He did, however, consider himself an expert on brain injury mechanisms of motorcycle accidents.

Butler argues that during the course of his testimony, via videotaped deposition, Professor Hurt rendered opinions in fields in which he was not an expert, in particular, medicine, brain injury, anatomy, pathology, and neuropathology. We have thoroughly reviewed Professor Hurt’s testimony, and we conclude that Butler’s contention overstates the content of Professor Hurt’s opinion testimony.

As the trial court notes in its opinion, Professor Hurt testified as to his basic understanding of the anatomical regions and structure of the brain and skull and explained that his understanding of this was necessary in order to conduct an accident analysis and to determine the force, dynamics and causes of trauma to the head, as well as the accident performance of a helmet. Based upon the hospital records and the medical examiner’s report, Professor Hurt testified as to the specific bones which were fractured in Patrick’s skull. See R. 206A-209A. Professor Hurt’s opinion, based upon the location of the skull fractures, was that the injuries were consistent with the crushing forces applied to the helmet. Professor Hurt testified:

... The injuries are completely consistent with crushing. Crushing in the front lobe, 240 regions, just right behind the eyes. Crushing loads have been applied from the left. Crushing loads have been applied from the right to produce those particular skull fractures, and, of course, the injuries of the brain adjacent to those fractures. But they’re completely consistent with the damage to the helmet. Tire crushing this side from run over, and the pavement from this side as the helmet is down on the ground and the tire runs over that part of the helmet. And the crushing of the liner [in the helmet] in between says that the helmet was on the head. The damage, the injuries, the fractures, primarily to the skull, indicate those compression loads. All of those are completely consistent [with] a helmeted head being run over by the right side tires of the automobile involved in the collision.

R. 208A-209A. Professor Hurt essentially “reads” the damage to the skull and the helmet in order to determine whether the head was helmeted at the time of the impact and what types of injuries are consistent with the damage to the helmet. This was certainly within the realm of Professor Hurt’s own expertise, although supported by other facts of record or expert reports. See Foster v. McKeesport Hospital, 260 Pa.Super. 485, 394 A.2d 1031 (1978) (expert opinion testimony can be founded, in part, on the opinions of other experts); cf. Kearns v. Clark, 343 Pa.Super. 30, 493 A.2d 1358 (1985); Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892 (1974). Professor Hurt did not purport to reach any medical conclusions with respect to the cause of death; that information was available, as stated above, from medical reports.

Professor Hurt also opined that motorcycle helmets are intended to prevent impact to the head, but they are not designed to withstand crushing loads. This, too, well within Professor Hurt’s area of expertise. Yoho v. Stack, 373 Pa.Super. 77, 540 A.2d 307 (1988). Contrary to Butler’s argument, Professor Hurt did not testify as a medical expert. We conclude, therefore, that Butler’s claim that the trial court committed error in allowing Professor Hurt to testify to these matters is meritless. Cooper v. Metropolitan Life Ins. Co., 323 Pa. 295, 186 A. 125 (1936).

Finally, Butler argues that the trial court abused its discretion by allowing Professor Hurt to testify beyond the scope of his expert reports. Pennsylvania Rule of Civil Procedure 4003.5(c) provides:

To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, his direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto. However, he shall not be prevented from testifying as to facts or opinions on matters on which he has not been interrogated in the discovery proceedings.

Pa.R.C.P. 4003.5(c). Butler points to the following specific points to which Professor Hurt testified:

1. that skull fractures were caused by a crushing of the head (R.202A-203A; 206A-209A);
2. that the helmet was pulled off of Butler’s head by “high force” (R.211A); and
3. that the quick release buckle was not defective in design (R.212A-213A; 217A);

Professor Hurt’s expert report, dated December 29, 1989, provides:

... The latch system will release when extremely severe lateral forces are applied, as in this runover. This is an acceptable result because retention of the helmet for all conceivable loads threatens the cervical spine with deadly forces. In the Butler accident, all of the deadly head injuries were experienced while the helmet was in place, then ejection of the helmet occurred, after the runover had occurred. The deadly head injuries suffered by Butler occurred with the helmet in place, and no other motorcycle helmet would have prevented or reduced the deadly head injuries as the car ran over the helmeted head.

We disagree with Butler’s claim that the mandates of Rule 4003.5(c) were violated. A comparison of the statements to which Butler refers and the expert report reveals that Professor Hurt’s testimony regarding the skull fractures, how the helmet was pulled off Patrick’s head, and his . opinion that the latch system (the “quick release buckle”) was not defective were all within the fair scope of the expert report submitted on December 29,1989. We find no unfairness, surprise or prejudice to Butler, Augustine by Augustine v. Delgado, 332 Pa.Super. 194, 481 A.2d 319 (1984), nor do we agree with Butler’s judgment that Professor Hurt’s testimony resulted in a “trial by ambush.” Sindler v. Goldman, 309 Pa.Super. 7, 454 A.2d 1054 (1982). As the trial court noted, Butler was afforded ample time to prepare for trial as well as to prepare for cross-examination of Professor Hurt. Kemp v. Qualls, 326 Pa.Super. 319, 473 A.2d 1369 (1984). Butler received the report nearly one month prior to trial. This was sufficient time for counsel to meet those concerns which we conclude could reasonably be anticipated from the content of Professor Hurt’s report.

We conclude that the trial court committed no palpable abuse of discretion or error of law. Stevenson, supra. Butler’s motion for a new trial, therefore, was properly denied.

Affirmed.


author: WIEAND, Judge: JOHNSON, Judge,

text:
    604 A.2d 276
    COMMONWEALTH of Pennsylvania, Appellant, v. Garland J. BENNETT, Appellee.
    Superior Court of Pennsylvania.
    Submitted Aug. 22, 1991.
    Filed March 3, 1992.

      Kemal A. Mericli, James R. Gilmore, Asst. Dist. Attys., Pittsburgh, for the Com., appellant.
    Norma Chase, Pittsburgh, for appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

The Commonwealth appeals from an order of the trial court suppressing in excess of one hundred (100) grams of cocaine seized by police from a duffle bag carried by Garland J. Bennett upon arrival at the Greater Pittsburgh International Airport. The bag was seized after Bennett had placed it against a wall outside the main terminal. When confronted and questioned by police, Bennett denied ownership of it. The Commonwealth asserted at the suppression hearing that Bennett, by his denial of ownership, had abandoned any reasonable expectation of privacy which he would otherwise have had in the duffle bag. The suppression court determined, however, that Bennett’s denial of ownership had been coerced and did not constitute a voluntary abandonment. This appeal followed.

In reviewing an appeal taken by the Commonwealth from an order suppressing evidence,

we must 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. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court’s findings of fact if those findings are supported by the record. Id. Factual findings wholly lacking in evidence, however, may be rejected. Id.

Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988). See also: Commonwealth v. Lagana, 517 Pa. 371, 375-376, 537 A.2d 1351, 1353-1354 (1988); Commonwealth v. James, 506 Pa. 526, 532-533, 486 A.2d 376, 379 (1985). “We will also affirm the decision of the suppression court ‘if it can be sustained for any reason whatsoever, even if the [suppression] court offered an erroneous reason to support its action.’ ” Commonwealth v. Bowers, 400 Pa.Super. 377, 381, 583 A.2d 1165, 1167 (1990), quoting Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 309-310, 422 A.2d 1126, 1131 (1980). See also: Commonwealth v. Shaw, 494 Pa. 364, 368 n. 1, 431 A.2d 897, 899 n. 1 (1981); Commonwealth v. Nelson, 320 Pa.Super. 488, 493, 467 A.2d 638, 641 (1983).

The suppression court has briefly described the factual scenario giving rise to the legal issues in this appeal as follows:

On [July 17, 1989], the Defendant, at Greater Pittsburgh International Airport, deplaned from Flight 597 from New York City and became the focus of an investigation pursuant to a drug courier profile utilized by the Allegheny County Police [Drug] Interdiction Team. Defendant was followed through the concourse to the outside of the airport terminal, observed carrying a green duffle bag throughout the pertinent time period, including a rest room stop.
While waiting for a bus outside the airport terminal, testimony at the Suppression Hearing indicated that the Defendant placed the duffle bag against the wall and walked from 6 to 15 feet away from the duffle bag but remained within a 15 foot radius of the bag. It was at this point that two Allegheny County police officers confronted the Defendant and inquired into several of the aspects which were itemized on the Drug Courier Profile: air line ticket, lack of baggage, identification, destination. When asked if the duffle bag leaning against the wall belonged to Defendant, Defendant answered in the negative. The officer testified that he immediately went to the duffle bag, opened it, examined the contents and discovered the suspected controlled substance. Defendant was then placed under arrest.

In light of the suppression court’s determination in this case, the essential issues to be resolved on appeal are: (1) whether appellee’s denial of ownership of the duffle bag was sufficient to constitute an abandonment of a possessory interest therein; and (2) if, in fact, an abandonment of the duffle bag occurred, was it coerced by unlawful police conduct.

“It is axiomatic that a defendant has no standing to contest the search or seizure of items which he has voluntarily abandoned.” Commonwealth v. Windell, 365 Pa.Super. 392, 398, 529 A.2d 1115, 1117 (1987). See also: Commonwealth v. Rodriguez, 385 Pa.Super. 1, 4, 559 A.2d 947, 948 (1989); Commonwealth v. Cihylik, 337 Pa.Super. 221, 228, 486 A.2d 987, 990 (1985). The applicable law with respect to the issue of abandonment has been stated by the Superior Court as follows:

It is hornbook law that abandoned property may be obtained and used for evidentiary purposes without regard to the existence of probable cause or a search warrant. Commonwealth v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1979). The theory of abandonment is predicated upon the clear intent of an individual to relinquish control of the property he possessed. Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976). Personal belongings, such as [a] suitcase, “retain their constitutional protection until their owner meaningfully abdicates control or responsibility.” Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). The issue is not abandonment in the strict property right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. Commonwealth v. Shoatz, supra [469 Pa.] at 553, 366 A.2d at 1220 citing U.S. v. Colbert, 474 F.2d 174, 176 (5th Cir.1973). Although abandoned property is admissible evidence, such property may not be utilized where the abandonment is coerced by unlawful police action. Commonwealth v. Harris, 491 Pa. 402, 421 A.2d 199 (1980); Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973).

Commonwealth v. Vecchione, 327 Pa.Super. 548, 557-558, 476 A.2d 403, 408 (1984). See also: Commonwealth v. Williams, 380 Pa.Super. 227, 231-232, 551 A.2d 313, 315 (1988); Commonwealth v. Bulling, 331 Pa.Super. 84, 103-104, 480 A.2d 254, 264 (1984); Commonwealth v. Williams, 269 Pa.Super. 544, 547, 410 A.2d 835, 836 (1979).

The Pennsylvania Supreme Court has observed also that:

‘Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. United States v. Cowan, 2d Cir. 1968, 396 F.2d 83, 87. All relevant circumstances existing at the time of the alleged abandonment should be considered. United States v. Manning, 5th Cir.1971, 440 F.2d 1105, 1111. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. See Abel v. United States, supra [362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960)]; United States v. Edwards, 5th Cir.1971, 441 F.2d 749; Lurie v. Oberhauser, 9th Cir.1970, 431 F.2d 330.’

Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976), quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973) (en banc). See also: Commonwealth v. Anderl, 329 Pa.Super. 69, 82, 477 A.2d 1356, 1362 (1984).

The Commonwealth argues that the decision of the Superior Court in Commonwealth v. Anderl, supra, is controlling of the abandonment issue in this case. In Anderl, the defendant, who had been involved in an automobile accident, removed a satchel from the trunk of his car and concealed it behind a hedge on the property of a third person. When the satchel was found by a police officer, the defendant responded to the officer’s inquiry by denying that the satchel belonged to him. The Superior Court held that, under these circumstances, the defendant had abandoned any reasonable expectation of privacy in the satchel. In so holding, however, the Anderl Court specifically noted that the defendant’s expectation of privacy in the contents of the satchel had been “measurably decreased by his action of hiding it on the property on an unknown third party.” Id., 329 Pa.Superior Ct. at 84, 477 A.2d at 1363. Thus, the Court did not consider whether the subsequent denial of ownership would alone have been determinative. In the instant case, the defendant’s prior conduct did not evidence a clear intent to relinquish his expectation of privacy in the duffle bag, for he merely had placed the bag against the terminal wall while waiting for a bus and at all times remained within a 6 to 15 foot radius of the bag. The issue clearly presented in this case, therefore, is whether defendant’s denial of ownership of the duffle bag, standing alone, was sufficient to constitute an abandonment.

Although our research has disclosed no appellate decisions in this Commonwealth which are directly on point, we are guided by federal appellate court decisions which have held generally that abandonment may be found where, in response to police questioning, a defendant denies ownership of the property in question. See: United States v. Carrasquillo, 877 F.2d 73 (D.C.Cir.1989) (where train passenger denied ownership of garment bag under his feet and no other person claimed it, bag was legally abandoned and could be searched without warrant); United States v. McBean, 861 F.2d 1570. (11th Cir.1988) (defendant had no reasonable expectation of privacy in luggage in trunk of his car where he told police that it was not his luggage and that he knew nothing of its contents); United States v. Roman, 849 F.2d 920 (5th Cir.1988) (defendant abandoned suitcases which he had checked at airport, where he told agents that he had not checked any luggage and had no baggage other than his carryon bag). See also: United States v. Clark, 891 F.2d 501 (4th Cir.1989); United States v. Moskowitz, 883 F.2d 1142 (2d Cir.1989); United States v. Nordling, 804 F.2d 1466 (9th Cir.1986); United States v. Lucci, 758 F.2d 153 (6th Cir.1985), cert. denied, 474 U.S. 843, 106 S.Ct. 129, 88 L.Ed.2d 106 (1985); United States v. Miller, 589 F.2d 1117 (1st Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979).

The leading decision on abandonment by disclaimer of ownership, according to LaFave, is United States v. Colbert, supra. In Colbert, police officers had approached two men who were walking along a street in Birmingham, Alabama. The reason given was that one of the men resembled a wanted felon. Upon seeing the police, the two men set the briefcases which they had been carrying on the sidewalk. In response to a police inquiry, the two men claimed they were book salesmen. However, they denied ownership of the briefcases which they had been carrying. After being frisked by police, the two men began walking away from the officers, leaving the briefcases behind. A subsequent warrantless search of the briefcases led to the discovery of illegal firearms which had been concealed therein. In holding that the two men lacked standing to contest the search of the briefcases, the Fifth Circuit, sitting en banc, reasoned as follows:

The facts of this case show conclusively that Colbert and Reese abandoned their briefcases before the searches took place. In response to police questions they both disclaimed any interest in the briefcases and began to walk away from them. The police officers in no way compelled these actions. Under these circumstances appellants could entertain no reasonable expectation of privacy in them. Compare Lurie v. Oberhauser, [431 F.2d 330 (9th Cir.1970),] where a disclaimer of any ownership or possessory interest in a suitcase in the course of a police investigation was held sufficient without more to support a finding of abandonment. The legal effect of the abandonment is, as noted above, to deprive appellants of standing to challenge the subsequent searches.

United States v. Colbert, supra, 474 F.2d at 177. See also: United States v. Garcia, 849 F.2d 917 (5th Cir.1988); United States v. McKennon, 814 F.2d 1539 (11th Cir.1987); United States v. Tolbert, 692 F.2d 1041 (6th Cir.1982), cert. denied, 464 U.S. 933, 104 S.Ct. 337, 78 L.Ed.2d 306 (1983); United States v. Hawkins, 681 F.2d 1343 (11th Cir.1982), cert. denied, 459 U.S. 994, 103 S.Ct. 354, 74 L.Ed.2d 391 (1982); United States v. Canady, 615 F.2d 694 (5th Cir. 1980), cert. denied, 449 U.S. 862, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980). See generally: Annot., Search and Seizure: What Constitutes Abandonment of Personal Property Within Rule that Search and Seizure of Abandoned Property Is Not Unreasonable — Modern Cases, 40 A.L.R.4th 381, §§ 21-25 (1985 and 1991 Supplement).

After careful review of these federal decisions, we conclude that their rationale is persuasive. We hold, therefore, that under the circumstances present in this case, defendant’s disclaimer of ownership constituted an abandonment of the duffle bag which he had previously been carrying. Our finding that appellee abandoned the duffle bag, however, does not end our inquiry for, “[although abandoned property may normally be obtained and used for evidentiary purposes by the police, such property may not be utilized where the abandonment is coerced by unlawful police action.” Commonwealth v. Pollard, 450 Pa. 138, 143, 299 A.2d 233, 236 (1973) (footnote omitted). See also: Commonwealth v. Shoatz, supra 469 Pa. at 553-554, 366 A.2d at 1220; Commonwealth v. Jeffries, 454 Pa. 320, 326, 311 A.2d 914, 918 (1973). Accordingly, we must proceed to determine further whether appellee’s abandonment of the duffle bag was coerced by unlawful police conduct.

To determine the lawfulness of the police conduct in the instaut case, it is necessary to establish the nature of the contact which occurred between the police and appellee prior to appellee’s abandonment of the duffle bag. The types of contacts which occur between police and citizens were characterized by the Superior Court in Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989), in the following manner:

Encounters between the public and the police that do not involve a formal arrest may be categorized as mere encounters, non-custodial detentions, and custodial detentions. Commonwealth v. Ellis, 379 Pa.Super. 337, 353, 549 A.2d 1323, 1331 (1988). The term “mere encounter” refers to certain non-coercive interactions with the police that do not rise to the level of a seizure of the person under the fourth amendment. For example, a “mere encounter” occurs if the police simply approach a person on a public street in order to make inquiries. See Commonwealth v. Hall, 475 Pa. 482, 488, 380 A.2d 1238, 1241 (1977).

On the other hand, both non-custodial detentions and custodial detentions are seizures of the person that trigger fourth amendment protection. See Dunaway v. New York, 442 U.S. 200, 207-211, 99 S.Ct. 2248, 2253-2256, 60 L.Ed.2d 824 (1979); see generally 2 LaFave, Search and Seizure § 5.1 (2d ed. 1987) and 3 LaFave, Search and Seizure, §§ 9.1-9.6 (2d ed. 1987). A non-custodial detention or “forcible stop” occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. See Commonwealth v. Williams, 287 Pa.Super. 19, 22, 429 A.2d 698, 700 (1981). In order to justify a forcible stop under the fourth amendment, the police must point to specific and articulable facts that, taken together with the rational inferences from those facts, reasonably indicate that criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Custodial detention is a more severe form of government intrusion in which the conditions or duration of the police detention approximate the level of restraint associated with a formal arrest. See Ellis, 379 Pa.Super. at 356, 549 A.2d at 1332. In order to justify custodial detention, the police must have probable cause to believe that an offense has been or is being committed. Dunaway v. New York, 442 U.S. at 216, 99 S.Ct. at 2258.

Id., 388 Pa.Superior Ct. at 189-190, 565 A.2d at 178-179. See also: Commonwealth v. Lidge, 399 Pa.Super. 360, 366-367, 582 A.2d 383, 386 (1990); Commonwealth v. Douglass, 372 Pa.Super. 227, 238-239, 539 A.2d 412, 417-418 (1988).

Instantly, the Commonwealth asserts that the testimony of the police officers, who approached and questioned appellee, established the occurrence of a “mere encounter”, pursuant to which appellee was not subjected to seizure within the meaning of the Fourth Amendment. Unfortunately, the suppression court’s findings are inadequate and its conclusions not always consistent. Nevertheless, our standard of review does not change. Where there are not explicit findings, or in the case of lacunae among the findings, we consider, where, as here, the suppression court has entered an order suppressing Commonwealth evidence, only the evidence of the defendant and so much of the evidence of the Commonwealth as remains uncontradicted. Cf. Commonwealth v. Hughes, 521 Pa. 423, 439, 555 A.2d 1264, 1272 (1989); Commonwealth v. Willis, 483 Pa. 21, 26, 394 A.2d 519, 521 (1978); Commonwealth v. Sparrow, 471 Pa. 490, 498 n. 5, 370 A.2d 712, 716 n. 5 (1977), overruled on other grounds in Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981).

At the suppression hearing, defendant described his encounter with the police in the following manner:

Q. Would you tell us what happened when you went outside the airport?
A. I went outside to the cab stand and asked the cab driver how much it would be to go in to town and it was too much, I didn’t have enough. I said, “That’s okay, I’ll just get the bus.”
Q. Speak a little slower and pull the mike up to you so we can hear you?
A. I said I went to over to the bus station to wait for the bus, the bus terminal part.
Q. Okay.
A. So then—
Q. What did you do with the green duffle bag?
A. I set it down by the sliding glass doors.
Q. Okay.
A. I walked over by the curb waiting for the bus.
Q. Where would the distance be from where you set it down to the curb?
A. Like from here over by that wall (indicating). Then I was waiting there, then the guy just went out the room and the other guy, the other officer—
Q. That was Officer Abbot?
A. They came up to me, so, he said, “Excuse me, can we talk to you for a minute?” I, like, backed up, like this, you know, like, (indicating) what’s going on?
Q. Were they in uniforms?
A. No.
Q. Okay.
A. Plain clothes.
Q. Okay.
A. When I was backing up, he grabbed this arm like this (indicating.)
Q. Who grabbed your arm?
A. The one that just went out.
Q. Officer Abbot?
A. Yeah.
Q. Show me how he took your arm, if I’m you, you be Officer Abbot.
A. Like when they first came up to me, they were both on me, like, right up against me, both sides of me, I, like—
Q. Indicating their shoulders were touching your shoulders?
A. Yeah, he came on this side of me, Excuse me, we’d like to talk to you for a minute. I broke away, they were on both sides, like this, like that, I said, “What’s the problem, what you all want to talk to me for?” He did like this (indicating), he said, We police officers, then they showed identification.
Q. After he said, We’re police officers, he took your arm?
A. Uh-hum.
Q. Then what did he do?
A. He said, “Can you step away from the curb, come up over here,” took me to the sidewalk, like, taking me along, the other one was right on the side of me.
Q. How much did he usher you?
A. Like from here to about where that little cassette is on that table.
A. Estimating approximately six feet?
A. (The witness nodded in the affirmative.)
Q. Okay. Tell me what happened, then, what did they say to you?
A. He started questioning, he said, you know, where was I coming from? I said, “New York.” He said, “What airport?” I said, “LaGuardia.” Then he asked me to see my plane ticket, so I showed him my plane ticket, he gave it right back.
Q. Was there a uniform officer on at this point?
A. He started walking across the street, by the time they asked me that stuff, he was in front of me and they was both on the side of me. So then—
Q. Was the one officer still holding your arm?
A. He was, like, yeah, like, he was making sure I couldn’t run away or nothing like that.
Q. Okay.
A. So then he asked me — he was saying something about something about, you know, the New York City and all that stuff, then he said, “We’re interested in looking in your bag,” I said, “What bag?” He said, “That bag over there,” I said, “That’s not my bag.” Q. That was your bag?
A. Yes.
Q. You lied to them?
A. Yeah.
Q. Did you feel when they approached you — from the time they approached you during the entire time they were with you that you were free to leave?
A. No, feel like I was arrested already.

“[A]ny assessment of whether police conduct amounts to a seizure implicating the Fourth Amendment must take into consideration all of the circumstances surrounding the incident in each individual case.” Commonwealth v. Lidge, supra at 366, 582 A.2d at 386. See also: Commonwealth v. Jones, 474 Pa. 364, 371, 378 A.2d 835, 838-839 (1977), cert. denied, 435 U.S. 947, 98 S.Ct. 1533, 55 L.Ed.2d 546 (1978); Commonwealth v. Williams, 287 Pa.Super. 19, 24, 429 A.2d 698, 701 (1981). In this regard the United States Supreme Court has concluded that:

a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. See Terry v. Ohio, supra [392 U.S.], at 19, n 16, 20 LEd2d 889, 88 SCt 1868 [at 1879, n. 16], 44 Ohio Ops 2d 383; Dunaway v. New York, 442 US 200, 207, and n. 6, 60 LEd2d 824, 99 SCt 2248 [2253, and n. 6]; 3 W. LaFave, Search and Seizure 53-55 (1978). In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

United States v. Mendenhall, 446 U.S. 544, 554-555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509-510 (1980) (Opinion Announcing Judgment of the Court per Stuart, J.) (footnote omitted). See also: Michigan v. Chesternut, 486 U.S. 567, 573-574, 108 S.Ct. 1975, 1979-1980, 100 L.Ed.2d 565, 571-572 (1988); INS v. Delgado. 466 U.S. 210, 215-217, 104 S.Ct. 1758, 1762-1763, 80 L.Ed.2d 247, 254-255 (1984). It has been observed further that:

an encounter becomes a seizure if the officer engages in conduct which a reasonable man would view as threatening or offensive even if performed by another private citizen. This would include such tactics as pursuing a person who has attempted to terminate the contact by departing, calling to such a person to halt, holding a person’s identification papers or other property, blocking the path of the suspect, and encircling the suspect by many officers, in addition to the more obvious ones.

3 W. LaFave, Search and Seizure, § 9.2(h) at pp. 413-414 (2d ed. 1987) (footnotes omitted). See also: In the Interest of Jermaine, 399 Pa.Super. 503, 511-512, 582 A.2d 1058, 1062 (1990).

Here, the defendant’s testimony which we are bound to accept in the absence of specific findings to the contrary, reveals that prior to questioning him, Kaminski and Abbot approached him, flanking him on both sides. Abbot then grabbed appellee’s arm and ushered him about six feet from the curb to the sidewalk. During initial questioning, a uniformed officer also approached and stationed himself in front of appellee, further blocking his path. Under these circumstances, we are constrained to reject the Commonwealth’s assertion that the confrontation between appellee and the police was a “mere encounter” which did not implicate appellee’s Fourth Amendment rights. Rather, on the record before this Court, we are forced to conclude that Officers Kaminski "and Abbot forcibly detained appellee because of their suspicion that he was a courier of illegal drugs. To effect a forcible detention, the officers were required to possess reasonable and articulable suspicion that appellee was committing a crime. If reasonable suspicion was lacking, defendant’s abandonment of the duffle bag in response to police questioning would have flowed from coercive and improper police conduct. Therefore, we must determine whether Officers Kaminski and Abbot were in possession of sufficient facts and circumstances to justify their forcibly detaining defendant for questioning pursuant to the standard established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

At the suppression hearing, the uncontradicted testimony of Kaminski,and Abbot established that Bennett was first observed getting off a flight from New York City, known as a source city for illegal narcotics. He was dressed casually in sweat clothes and a baseball cap, while most of the other passengers were dressed in business suits. The officers first began to focus on defendant when he made two brief phone calls shortly after disembarking from the airplane and behaved in an animated manner during these conversations. The officers observed further that defendant appeared to be keeping very tight control over the duffle bag which he was carrying, even when he went into a men’s room. Their suspicions grew when defendant passed the baggage claim area without claiming any luggage. This prompted the officers to follow defendant as he exited the terminal and approached a cab driver. After briefly talking to the cab driver, defendant walked over to a bus stop. Kaminski and Abbot then questioned the cab driver, who told them that defendant had inquired about the fare to downtown Pittsburgh and had said he could not afford it. The officers then noticed defendant looking in their direction, and, subsequently, walking over to the terminal wall and putting down the duffle bag which he had been carrying. At this point, Kaminski and Abbot approached appellee to investigate further.

In conducting their surveillance of appellee, Kaminski and Abbot had been using a drug courier profile. Among the characteristics listed on the profile, Kaminski and Abbot identified the following factors which had led them to focus upon appellee and ultimately to approach him: (1) his arrival from a source city for illegal drugs; (2) his casual manner of dress; (3) his making of brief, animated telephone calls; (4) his not having any checked baggage; and (5) his carrying of only a single item of carry on luggage.

The fact that the officers were relying upon a drug courier profile is not determinative. “[A] match between the so-called profile and characteristics exhibited by a defendant does not, in and of itself, create a reasonable suspicion sufficient to justify an investigatory stop.” United States v. Hanson, 801 F.2d 757, 762 (5th Cir.1986), citing United States v. Berry, 670 F.2d 583, 600 (5th Cir.1982) (en banc). However, while the characteristics listed in a drug courier profile “do not necessarily establish reasonable suspicion or probable cause in any given case, profiles are clearly a lawful starting point for police investigations.” United States v. Carrasquillo, supra, 877 F.2d at 76. Moreover, “[ijnclusion of some of those characteristics within the ‘informally compiled’ drug courier profile does not mean that they cannot be considered significant when properly evaluated.” United States v. Sanford, 658 F.2d 342, 346 (5th Cir.1981). In the final analysis, “[a] court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a ‘profile’ does not somehow detract from their evidentiary significance as seen by a trained agent.” United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 1587, 104 L.Ed.2d 1, 12 (1989).

The factors which led Officers Kaminski and Abbot to suspect appellee of transporting drugs included his arrival from a source city, his casual manner of dress on a business flight, his keeping tight control over the duffle bag he was carrying, and the absence of any checked luggage. The Commonwealth additionally points to appellee’s intended use of public transportation and his glancing back and forth at the officers as factors arousing police suspicion. After careful study, however, we are constrained to hold that these factors were insufficient to justify a forcible investigatory stop.

In Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), the Supreme Court held that a defendant’s arrival from a source city for cocaine in the early morning when law enforcement activities were diminished, the apparent attempt by defendant and his companion to hide the fact that they were traveling together, and the absence of luggage other than shoulder bags was insufficient to establish reasonable suspicion to justify a Terry stop. The Court reasoned as follow:

We conclude that the agent could not, as a matter of law, have reasonably suspected the petitioner of criminal activity on the basis of these observed circumstances. Of the evidence relied on, only the fact that the petitioner preceded another person and occasionally looked backward at him as they proceeded through the concourse relates to their particular conduct. The other circumstances describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure. Nor can we agree, on this record, that the manner in which the petitioner and his companion walked through the airport reasonably could have led the agent to suspect them of wrongdoing. Although there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot, see Terry v. Ohio, supra [392 U.S.] at 27-28, 20 LEd2d 889, 88 SCt 1868 [at 1883], 44 Ohio Ops 3d 383, this is not such a case. The agent’s belief that the petitioner and his companion were attempting to conceal the fact that they were traveling together, a belief that was more an “inchoate and unparticularized suspicion or ‘hunch,’ ” 392 US, at 27, 20 LEd2d 889, 88 SCt 1868 [at 1883], 44 Ohio Ops 2d 383, than a fair inference in the light of his experience, is simply too slender a reed to support the seizure in this case.

Reid v. Georgia, supra at 441, 100 S.Ct. at 2754, 65 L.Ed.2d at 894.

We find additional support for our conclusion that Kaminski and Abbot lacked reasonable suspicion to forcibly detain appellee for questioning in the decision of the Fourth Circuit in United States v. Gooding, 695 F.2d 78 (4th Cir.1982), where, based upon facts similar to those in the instant case, reasonable suspicion was also found to be lacking. Specifically, the Gooding Court held that the following factors did not establish reasonable suspicion for an investigative Terry stop:

1) Gooding arrived from New York, a source city for drugs; 2) he was dressed casually on a 3:00 p.m. businessmen’s flight; 3) he made a telephone call immediately after arriving and subsequently made two other phone calls; 4) he scanned the concourse after deplaning; 5) he acknowledged the agents’ presence in an alleged cat-and-mouse game of mutual surveillance, and 6) to two of the agents his demeanor appeared “distraught” and “nervous.”

Id., 695 F.2d at 83. In support of its holding the Court reasoned as follows:

We begin by observing that though some of these factors appear in many of the general “drug courier profiles” in current use, the government concedes that most profiles contain additional elements not present here. In any event, we have specifically held that a drug courier profile, without more, does not create a reasonable and articulable suspicion. United States v. Harrison, 667 F.2d 1158, 1161 (4th Cir.1982); see Reid v. Georgia, 448 U.S. at 440-41, 100 S.Ct. at 2753-54.

The overall weakness of these factors in generating a reasonable suspicion of individual wrongdoing — independent of any force derived from their use in demonstrably helpful law enforcement “profiles” — is obvious upon reflection. The first four, separately or in combination would include such a number of presumably innocent persons as to approach a subjectively administered, random basis for stopping and interrogating passengers coming into Washington National Airport. Seizures on any such random basis are of course one of the precise evils at which the fourth amendment was aimed. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); cf. United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). For this reason, we have held that such general characteristics cannot alone be relied upon to support a reasonable suspicion of individualized criminal activity. United States v. Corbin, 662 F.2d 1066, 1069 (4th Cir.1981).

In an attempt to bolster the objective criteria here relied upon, the government suggested at oral argument, citing our decision in Corbin, that Gooding engaged the police in a “cat and mouse” pattern of mutual surveillance. In Corbin, the agents described in detail how the defendants continually scanned the boarding gate and baggage claim area to determine whether they were under surveillance, and even approached an agent ostensibly asking for change. Nothing remotely approaching this suspicious pattern of activity occurred here. After combing the record, all we can find even remotely suggestive of such a pattern is that Gooding scanned the concourse as he debarked the plane, and that the agents, in the course of following him over some thirty minutes, crossed paths with him on three occasions. This is simply not suspicious activity of the kind present in Corbin.

The final element relied upon is the agents’ perception and description of Gooding’s demeanor. Detective Bradley thought that Gooding looked “nervous, suspicious” as he got off the plane and Agent McCracken described Gooding as “distraught” when he received no answer to his first telephone call. The agents testified to nothing suspicious in his demeanor after these initial moments, and we find it significant that detective Isaac specifically testified that he never saw Gooding acting or looking about in a nervous fashion. In Corbin, we attached little weight to the fact that the suspects appeared nervous when they arrived in the airport. 662 F.2d at 1068-69. Although in some contexts nervous or anxious demeanor may obviously be relevant, see, e.g., United States v. Elmore, 595 F.2d 1036 (5th Cir.1979), the police officers’ articulated and conflicting perceptions of Gooding’s demeanor here are simply not of that order.

Though the constitutional requirement of a “reasonable articulable suspicion” for police investigative seizures has come justifiably to be a lenient one in the context of this type case, see United States v. Buenaventura-Ariza, 615 F.2d [29] at 35 [2nd Cir.1980], it nevertheless protects a precious right-hard earned and easily lost-to be free of arbitrary police intrusions on individual privacy and free movement. There is a line, dim though it be, and we are satisfied that here it was crossed. See id. at 37. On the objective criteria articulated by the police for the detention of this citizen, we conclude that his seizure was impermissible under the fourth amendment.

United States v. Gooding, supra at 83-84.

As was true in Reid and Gooding, the instant defendant’s conduct was of a general nature and could very well have been found in a large number of wholly innocent passengers. The only non-general conduct proffered by the Commonwealth was appellee’s looking back and forth at Kaminski and Abbot and then placing his duffle bag against the terminal wall. At the suppression hearing, interestingly, neither Kaminski nor Abbot referred to this action by the defendant as being one of the factors which had led them to approach appellee for questioning. Neither Kaminski nor Abbot said that he thought the defendant appeared particularly nervous or that he appeared to suspect the presence of police officers. Under these circumstances, we are constrained to conclude that Kaminski and Abbot simply did not possess reasonable suspicion sufficient to detain appellee forcibly for investigative questioning.

Because appellee’s abandonment of the duffle bag which he was carrying was preceded by and resulted from an unlawful Terry stop initiated by the police, we conclude that the cocaine found in the subsequent search of the duffle bag was properly suppressed by the trial court.

Order affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

I agree with my colleagues on the Majority Opinion that the order granting the motion to suppress the evidence should be affirmed. However, my colleagues go much further than the trial court. They conclude that the mere verbal denial of ownership constitutes an abandonment of the duffel bag Garland J. Bennett was observed carrying. I believe this is an inappropriate extension of the law of abandonment as I understand it. Accordingly, I must dissent.

The very experienced trial judge, the Honorable Walter R. Little, correctly observed, citing to 1 W. LaFave, Search and Seizure, § 2.6(b), at 467 (2d ed. 1987):

[T]he fundamental question is whether the relinquishment occurred under circumstances which indicate the defendant retained no justified expectation of privacy in the object.

In . his Opinion filed pursuant to Pa.R.A.P. 1925, Judge Little sets forth the following facts, all of which are supported in the record:

Officer Dan Kaminski offered uncontroverted testimony that he observed the Defendant initially carrying the duffel bag at issue, entering and leaving a public bathroom while retaining possession of the bag, observed the Defendant make two telephone calls while holding the duffel bag, and eventually carry the duffel bag outside the airport terminal to await a bus to Pittsburgh. Officer Kaminski further testified that the only two periods when the duffel bag was not being held by the Defendant were when the Defendant was in the bathroom, at which time the duffel bag was between his feet on the floor, and when the Defendant placed the duffel bag up against the wall at the bus stop. The only indication that Officer Kaminski had that the duffel bag containing the drugs did not belong to Defendant was when Defendant replied negatively to Officer Kaminski’s question as to whether or not the bag belonged to Defendant, which was after the police had explained their purpose of being in the airport. Defendant later testified that he lied to Officer Kaminski.
When Officer Kaminski was told that the bag did not belong to Defendant, he immediately proceeded to the duffel bag and began to examine its contents. This occurred after Officer Kaminski testified that he observed the Defendant, throughout the entire period of observation, to have the bag either on his shoulders or between his legs, and after the officers had identified themselves and told the Defendant of their purpose of being in the airport — drug investigations.

Opinion, Little, J., filed September 28, 1990, pages 5-6. (Citations to Suppression Hearing Transcript omitted; emphasis added).

Prom these facts, Judge Little concluded, and I wholeheartedly agree, that:

____having viewed Defendant with the duffel bag for a preceding period of time, the officer cannot be reasonably expected to say that he considered the property abandoned on the mere assertion of the Defendant that it was not his property.

Id., at page 10.

The Majority cites to many federal decisions to support its conclusion that disclaimer of ownership may, standing by itself, constitute abandonment. I do not find any of those federal cases going that far. Like Judge Little, the Majority looks also to Warren LaFave for guidance, but reads the roadsigns differently. I need not dispute that United States v. Colbert, 474 F.2d 174 (5th Cir.1973) is the leading case on abandonment by disclaimer of ownership. However, the Colbert court held that abandonment is primarily a question of intent, and that maxim has been followed by our courts here in Pennsylvania. Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976); Commonwealth v. Williams, 380 Pa.Super. 227, 231-32, 551 A.2d 313, 315 (1988).

In Shoatz, our supreme court outlined the test for determining whether abandonment has occurred, as follows: The theory of abandonment is predicated upon the clear intent of an individual to relinquish control of the property he possesses.

Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. All relevant circumstances existing at the time of the alleged abandonment should be considered____ The issue is not abandonment in the strict
property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.

Shoatz, 469 Pa. at 553, 366 A.2d at 1219-20 (citations omitted, emphasis in original).

Unlike the analysis performed by the distinguished trial judge, which included in-depth consideration of both Shoatz and Williams, supra, my colleagues appear to place their emphasis on the federal decisions and, without relating those decisions to the facts in this case, “conclude that their rationale is persuasive.” Even in the leading federal case, Colbert, the suspects had set their briefcases on the sidewalk, claimed they were book salesmen, denied ownership in the briefcases and began walking away from the scene, leaving the briefcases behind. It would not be unreasonable to infer that they had a clear intent to relinquish control over the property when they began walking away.

Contrast that to the facts now before us. The majority concedes that Bennett was the victim of a forcible detainer, with police officers flanking him on both sides, and one of the officers grabbing him by the arm. A uniformed officer also approached and stationed himself in front of Bennett, further blocking his path. It was under these circumstances, and at this point, that Officer Kaminski inquired about the duffle bag. Officer Kaminski testified as follows:

DIRECT EXAMINATION

BY MR. HEISTER;
Q All right, and did you say anything after that?
A Yes, I asked — ____ and I asked him if he had any
baggage other than the sea bag that he was carrying with him, which of course, at that time, was against the glass doors leading into the terminal.
Mr. Bennett’s response to that question was to say that he didn’t have any bags. At that point, I asked him, specifically pointing at the sea bag leaning against the glass doors, “That bag over there, that sea bag is not yours?” He said, “No, it’s not.” Okay, at that point, I proceeded to the sea bag and began to search____
Q Did he say anything at all?

A No, other than to say that he wasn’t carrying any baggage and that specific bag was not his.

THE COURT: You knew that not to be true,
THE WITNESS: That’s correct.
THE COURT: You saw him carry the bag and set it down?
THE WITNESS: Yes.
THE COURT: You knew he had possession of the bag?
THE WITNESS: Right.
THE COURT: Even though he told you a lie, you knew this not to be true, right?
THE WITNESS: Correct.

Suppression Hearing Transcript, June 8, 1990, pages 21-22, 23-24, R.R., pages 53a-54a, 55a-56a.

The Majority has failed, I believe, to consider all relevant circumstances existing at the time of the alleged abandonment. It has also failed to focus on the intent of the suspect. Under neither Shoatz nor Williams could one reasonably conclude that it was Garland Bennett’s clear intent to relinquish control over the sea bag, at the time he was surrounded by police officers, made no move to depart the scene or move further away from his possessions, and told a blatant lie to one of the questioning officers.

I am unaware of any Pennsylvania case that goes as far as the Majority would take our law of abandonment. Nor do I believe that our supreme court, if faced with th^ peculiar facts of this case, would be prepared to declare that a mere false declaration, without more and in the face of overwhelming indicia of control and intention to retain control, may suffice to establish abandonment. For these reasons, I must vigorously dissent.

Since I conclude that there was no abandonment on the facts before us, I would not consider whether the alleged abandonment had been coerced by unlawful police action. To its credit, the Commonwealth does not seek to argue that the officers had probable cause to search the defendant’s duffel bag absent abandonment. Thus, the order granting suppression was correct. Commonwealth v. Williams, supra.

      . Specifically, the suppression court said it was of the opinion “that the denial by the Defendant of ownership of the duffle bag was prompted by the coercive action [of the police] and prompted by the Defendant’s fear. Based on the totality of the circumstances, the result is a ‘coerced lie.”’

      . The Commonwealth may appeal from a trial court’s order suppressing evidence when it certifies in good faith that the suppression order will terminate or substantially handicap its prosecution of the case. See: Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). Instantly, the Commonwealth has fulfilled this requirement, and, as such, its appeal is properly before this Court.

      . 1 W. LaFave, Search and Seizure, § 2.6(b), at 469 (2d Ed.1987).

      . Appellee’s testimony was in contrast to that of Officers Kaminski and Abbot, who testified that they had approached appellee in a nonthreatening manner, did not touch him or restrict his movement in any way; told him that he did not have to talk with them and could leave, if he wanted; and finally, upon obtaining appellee’s agreement to answer questions, questioned him in a normal, conversational tone of voice.

      . As a result of their questioning of appellee, the police later learned that appellee was traveling pursuant to an one-way ticket which had been paid for in cash; that he had no identification; that the name on his airline ticket did not match the name stenciled on the duffle bag he was carrying; and that he said that he would be returning to New York the next day, but had no return reservations. However, these facts are not relevant to establish reasonable suspicion for the police stop, for defendant had been forcibly detained before the questioning began.

      . With respect to the use of drug courier profiles, the Superior court has recently made the following observations:
      The drug courier profile is not a "national profile.” Profiles vary from city to city, airport to airport, and also depending on which law enforcement agency is using them. The profile is subject to racial abuse and gender stereotyping, where the fact that a person is an African-American, Columbian, or Hispanic has appeared as a profile characteristic, as has the fact that the person was the only woman on an airplane carrying business travelers. Commonwealth v. Lidge, [399] Pa.Super. [360], 582 A.2d 383 (1990). A breakdown of profile traits listed in the reported decisions reveals that it encompasses such contradictory characteristics as deplaning first and deplaning last, paying with small bills and paying with large bills. It also encompasses an extraordinary amount of innocent behavior such that the average airline traveler would be hard-pressed to not display at some time dinring a trip. Furthermore, it is not clear whether the display of one or two characteristics is sufficient to fit the profile, or whether if some characteristics carry greater weight than other characteristics such that the display of one of these weightier characteristics may trigger an airport stop. Note, The Drug Courier Profile and Airport Stops: Reasonable
      Intrusions or Suspicionless Seizures? 12 Nova.L.Rev. 273, 288-296. Commonwealth v. Daniels, 410 Pa.Super. 275, 279 n. 1, 599 A.2d 988, 990 n. 1 (1991).