text:
    MARK EDWARD BLOTKAMP v. STATE OF MARYLAND
    [No. 773,
    September Term, 1979.]

      Decided March 4, 1980.

    The cause was argued before Moore, Liss and Wilner, JJ.

      Arthur A. DeLano, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Jeffrey N. Himmelstein, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Susan worked the night shift (11:00 p.m. to 7:00 a.m.) at an Amy Joy Donut Shop in Essex. On the evening of June 4, 1978, she was alone in the store when, about 11:30 p.m., a man entered. The man, whom she identified in court as appellant, sat down at the counter, asked for, and received, a cup of coffee. While he drank the coffee, Susan cleaned some shelves and then walked through a connecting door into the kitchen area. She heard a sound, looked around, and saw appellant standing in the kitchen doorway. He said that he wanted money.

Susan was frightened. There was no escape route. The only way out was where he was standing. Her fear was by no means assuaged when appellant told her to remove her clothes "so that I wouldn’t be able to call the police.” She hesitated, told him that she would not call the police and just wanted to be left alone; "but then he said he had a knife.” Susan never actually saw a knife, but, being frightened, she took off her clothes. Appellant ran back to the cash register at the counter, got the money in it, and then returned. He said "that he could just take the money and go, but he wasn’t going to make it that easy.” He told Susan to lie down on the floor. She did — "[b]ecause I was too scared to do anything else.”

Appellant pulled his pants down, got on top of her, and proceeded to have sexual intercourse. Susan was crying. She did not offer resistance; "I was too scared,” she said. Until then, Susan was a virgin.

Just as appellant finished his nefarious business, a customer came into the store. Appellant got up, pulled his pants up, and went out to wait on the customer. He told Susan to get dressed. Appellant then came back, told her to wait five minutes before calling anyone, or he would return with his knife, and then left through the front door.

Scott McCarter and Tony Mullins were the customers Susan heard. They both stated that they went to the Amy Joy shop at about 11:30 p.m. on June 4,1978. No one was behind the counter. When McCarter called out if anyone was there, appellant, whom he knew slightly, came out and waited on them. Both McCarter and Mullins identified appellant.

When appellant (and the customers) left, Susan called her "boss,” who, in turn, called the police. She was promptly taken to Franklin Square hospital and examined. Two red marks, considered as recent trauma by the examining physician, were noted on her back, and a "Recent Blue Bruise” was observed on her left arm. There was also noted (1) "Laceration (Recent) on midline of Forschette at 6 O’clock position (sutured 4 stitches)”; (2) "fresh-recentLacerátion of Hymen”; (3) "Whitish material on pubic hair,” later identified as semen; and (4) "Blood clots on ext. genitalia.”

Scott McCarter learned that night about the robbery, and advised the police of his presence at the shop. A few weeks later, he saw appellant on the street and immediately notified the police. This led to appellant’s arrest.

Appellant denied ever being at the shop on the evening of June 4, and also, of course, denied raping Susan. A jury in the Circuit Court for Baltimore County didn’t believe him. It found him guilty of first and second degree rape, assault with intent to rape, assault, and robbery, upon which appellant was given concurrent sentences totalling 20 years.

In this appeal, he argues: (1) insufficiency of the evidence, and (2) error in refusing to give a requested instruction.

(1) Sufficiency of the Evidence

Appellant’s complaint here is really a dual one. His principal defense was that he was nowhere near the Amy Joy shop on June 4, but was home in bed sick. He denied ever being in Susan’s presence or having anything to do with what occurred. One of his claims here is that, based upon that defense, the evidence was insufficient to establish his "criminal agency.” This, of course, is nonsense. Three witnesses placed him at the scene, and one, Susan, positively identified him as her attacker.

Seeking succor from the recent decisions of this Court in Rusk v. State, 43 Md. App. 476 (1979), and Goldberg v. State, 41 Md. App. 58 (1979), appellant alternatively contends that the evidence failed to establish the requisite force or threat of force necessary to make what happened to Susan rape in the first or second degree. Again, we disagree.

Md. Ann. Code art. 27, § 462 (a), defines first degree rape as follows:

"... A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force against the will and without the consent of the other person and:
(1) Employs or displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or
(2) Inflicts suffocation, strangulation, disfigurement, or serious physical injury upon the other person or upon anyone else in the course of committing the offense; or
(3) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or
(4) The person commits the offense aided and abetted by one or more other persons.”

There was clearly enough evidence to prove that appellant had vaginal intercourse with Susan, and that such act was against her will and without her consent. On the other hand, there was no evidence that enumerated circumstances (1), (2), or (4) were involved. The questions posed by appellant are whether there was sufficient evidence (1) of "force” in connection with the intercourse, as required by the first part of § 462 (a), or (2) that appellant "threatened] or place[d] the victim in fear that [she] will be imminently subjected to death [or] serious physical injury...,” i.e., the third enumerated aggravating circumstance. These questions involve overlapping, but somewhat different, concepts.

As we pointed out in Goldberg v. State, 41 Md. App. 58 (1979), prior to 1976, rape was a common law crime in Maryland without a statutory definition. The Code (art. 27, § 461) did no more than impose a penalty for a convicted rapist and provide that "penetration shall be evidence of rape, without proof of emission.” Rape was commonly defined in judicial decisions as "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without her consent and against the will of the victim.” (Emphasis supplied.) See Hazel v. State, 221 Md. 464, 469 (1960). Force, as the Hazel Court made clear, was "an essential element of the crime.” (Id., at 469); but "force” itself was an undefined term. What kind of "force” was necessary? This, too, was addressed in Hazel. The Court said, also at 469:

"But no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily that fact must depend upon the prevailing circumstances. As in this case force may exist without violence. If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she was placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force.” (Emphasis supplied.)

The assailant in Hazel broke into the victim’s home apparently intent on robbery. He threatened to shoot her child and he assaulted her in a variety of ways, all quite independently of any attempt at or suggestion of intercourse; he held her by the neck, tied her hands, and at one point choked her. The two acts of intercourse that subsequently occurred were accomplished without further violence, or brutality, or physical resistance. Hazel directed her what to do, and, out of fear, she complied. In this regard — in terms of the sexual assault — it was the ever-present threats made by the assailant, and his apparent ability to carry them out, that sufficed as the equivalent of "force.” The threat of serious harm, which, of course, was the threat of force, was equated with force itself. Under Hazel, then, evidence sufficient to establish the third aggravating circumstance — threats or acts that placed the victim in fear of imminent serious physical injury — would also suffice to establish force.

In 1976, the General Assembly made rape and other sexual offenses specific statutory crimes. See Laws of Md., 1976, ch. 573. Among other things, it split the common law crime of rape into two degrees. First degree rape, defined in a new § 462 of art. 27, encompassed two types of sexual assault. One was essentially the pre-existing common law rape, almost as defined in Hazel, coupled with one or more of four aggravating circumstances. The second was a variety of carnal knowledge — engaging in vaginal intercourse with a victim under 14 years of age where the assailant is at least four years older than the victim. In the first instance, § 463 (a) (1), what was required was vaginal intercourse "by force or threat of force” against the will and without the consent of the victim. (Emphasis supplied.) The second type of proscribed conduct did not specifically require force, threat of force, or lack of consent. The youth of the victim and the disparity in age sufficed as the legislative substitute for these more traditional elements.

In 1977, the General Assembly decided that the "carnal knowledge” type of assault should be "downgraded” to second degree rape. Thus, by Laws of Md., 1977, ch. 292, it amended §§ 462 (a) and 463 (a) of art. 27, to achieve that result. The "carnal knowledge” crime was moved from § 462 (a), defining first degree rape, to § 463 (a), defining second degree rape. In the process of this amendment, however, the phrase "or threat of force” was deleted from § 462 (a). Apart from the four aggravating circumstances, first degree rape now requires "vaginal intercourse with another person by force against the will and without the consent of the other person.” (Emphasis supplied.)

This deletion, appellant claims, marks a departure from Hazel; a "threat” will no longer suffice as the equivalent of "force.” Force, he asserts, means actual force and not a threat of it; and in this case, there was no evidence of such actual force.

There is nothing in the legislative history of the 1977 Act to indicate why the phrase was dropped from the law — whether it was deliberate or inadvertent; and we may one day have to consider the effect of the deletion. But not in this case; for we are convinced that the evidence here sufficed to show actual force and not merely the threat of it.

Unlike the situation in Rusk or Goldberg (both supra), or Winegan v. State, 10 Md. App. 196 (1970), Susan was physically harmed in this assault. There was not merely the incidental touching or pulling or manipulation evident in Rusk or Goldberg. Nor was there just the normal trauma associated with the loss of virginity, or that necessarily involved in the act of intercourse itself. See Goldberg, supra, footnote 3, 41 Md. App. at 69. Susan received substantial injuries to her genital area, requiring, as noted, surgical suturing. This was force; raw, actual force; unnecessary force; force beyond that normally involved in completing the coital act.

With respect to the third aggravating circumstance, appellant’s assertion of evidentiary insufficiency is based upon his assertions that (1) Susan "was never threatened with physical injury,” (2) appellant did not display a weapon, and (3) Susan "was not prevented from escaping or seeking assistance from the customers as they entered the donut shop.” Again, we disagree. Susan was, in fact, threatened with serious physical injury. Appellant’s pointed and repeated reference to having a knife, under the circumstances in which it was made, was certainly calculated — reasonably calculated — to create in Susan’s mind a real apprehension of serious and imminent bodily injury if she did not comply with his wishes; and if she had that apprehension, as she said she did, then she was indeed threatened. Actual display of a weapon is not necessary to establish the reality or the credibility of the threat. See Hazel, supra.

Moreover, despite appellant’s assertions to the contrary, and unlike Rusk or Winegan, supra, Susan had no opportunity to escape or to seek assistance. She was alone in the shop when the rape occurred; the customers did not come in until the attack was over. At the critical time, Susan was absolutely helpless — entirely at appellant’s mercy.

Under this frightening circumstance, appellant’s actions clearly sufficed to establish the necessary threat; they were, in the words of Hazel, "reasonably calculated to create in [Susan’s] mind — having regard to the circumstances in which she was placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist.” Appellant was no friend or acquaintance of Susan — no Lothario simply going too far; he came to the shop to commit robbery. See Rice v. State, 9 Md. App. 552, 560 (1970), cert. den. 259 Md. 735. Susan’s first and only impression of appellant was that he was a criminal bent on stealing.

Accordingly, we believe that the evidence did suffice to sustain the conviction for first (and second) degree rape.

(2) Instruction

The court gave the following instruction with respect to the elements of rape:

"The State must prove beyond a reasonable doubt that the act of vaginal intercourse between the Defendant and Susan Green was accomplished by force. The jury should be advised however, that force may exist without violence. If the acts and threats of the Defendant were reasonably calculated to create through fear a real apprehension of immanent [sic] bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force.
"You are instructed that force is an essential element of the crime of rape, and to justify a conviction the evidence must convince you beyond a reasonable doubt and to a moral certainty that the prosecutrix resisted and that her resistance was overcome either by force or by her being prevented from resisting from threats to her safety. Such threats to her safety, if any you should fínd must have been such as to have been reasonably calculated to create in her mind, having regard to the circumstances in which she was placed, a real apprehension, due to fear of imminent bodily harm, serious enough to impair or overcome her will to resist.” (Emphasis supplied.)

Appellant excepted to what he deemed the court’s failure to include a statement that the victim’s fear must be "of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a fear which would well nigh render her mind incapable of continuing to resist, or a fear that so overpowers her that she does not dare resist.”

We think that the instruction given accurately and adequately stated the law. Hazel v. State, supra. Appellant’s request differed only in rhetoric, not in substance.

Judgments affirmed; appellant to pay the costs.

      1. The forschette, or fourchette, is a small fold of skin, connecting the back ends of the labia minora. It thus forms part of the membrane surrounding the vaginal orifice.

      . He received 20 years for the first degree rape; nothing for the second degree rape, which was merged; 10 years for assault with intent to rape; nothing for assault, which was also merged; and 10 years for robbery.

      . The title to the 1977 Act, and the legislative history of it as revealed in the House and Senate journal entries and other available public records, indicates that the sole purpose of the Act was to make the carnal knowledge offense second degree rape, and not to otherwise redefine or change the elements of first degree rape. We cannot, of course, presume that the General Assembly does anything inadvertently, but from all of the records available to us, there is at least a reasonable possibility that this deletion may have in fact been an unintended one.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    DAVID B. BREEDON et ux. v. MARYLAND STATE DEPARTMENT OF EDUCATION et al.
    [No. 493,
    September Term, 1979.]

      Decided March 5, 1980.

    The cause was argued before Thompson, Moore and Melvin, JJ.

      Ralph J. Moore, Jr., and N. Frank Wiggins, with whom were Cohn & Marks on the brief, for appellants.

      Ellen M. Heller, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Dennis M. Sweeney, Assistant Attorney General, on the brief, for appellee Maryland State Department of Education. Richard C. Daniels, with whom was Paul M. Nussbaum on the brief, for other appellee.
   Moore, J.,

delivered the opinion of the Court.

William B. Breedon, the subject of this appeal, is a young man with aphasia, a disorder which renders it exceedingly difficult for him to communicate with the world because language is something which he cannot readily comprehend. This dispute began in 1975 when the school officials of Prince George’s County decided that William should be placed in a public school facility. William’s parents insisted that continued private schooling would better fulfill his educational needs, and they asked the school officials to pay for his tuition.

While at first glance the case appears to center on the procedural and substantive rights of a handicapped child to a publicly-financed, appropriate education, we perceive from the record a procedural error which diverts us from the merits of William’s appeal. The issue which we believe is determinative concerns the power of the circuit court, sitting as a reviewing court under the Administrative Procedure Act [hereinafter referred to as the "APA”], to receive, in open court, additional evidence not offered before the administrative agency. The Circuit Court for Prince George’s County (Levin, J.) held a hearing and received additional evidence on the parents’ appeal from an adverse decision of the Hearing Review Board of the Maryland State Department of Education. For the reasons that follow, we shall vacate the judgment of the circuit court upholding the department’s action and remand the case for futher proceedings in accordance with this opinion.

I. The Facts

William, who will be twenty years old this spring, has been the object of attentive parental concern since the discovery of his disorder at age four. Until 1967 the Breedon family resided in the Pittsburgh, Pennsylvania area. Mrs. Breedon diligently sought out an educational program for William but found that aphasic children were in a virtual no man’s land, as she explained to the Hearing Review Board:

"If you want to find the gaps in the educational system have an aphasic child.
The retarded didn’t want him because he wasn’t retarded. The deaf didn’t want him because he wasn’t deaf. He didn’t belong with the emotionally disturbed.”

After much searching, the Breedons, in 1968, discovered the Children’s Hearing and Speech Center at Children’s Hospital in the District of Columbia. William was accepted by the center, and the family moved to Maryland. As Mrs. Breedon told the board:

"It wasn’t a hard decision to make at all. We have certainly never regretted it.
Billy came to Children’s really lost.... He made steady improvement and he became a person. I have often said that I think Billy joined the world when he came to Children’s Hospital. He was not in it before and he now has really become a person.”

During the next seven years, until the Spring of 1975, William made steady progress to the point where his linguistic ability ranged between a second grade and a sixth grade level, depending upon the nature of the tests and the particular skill being tested. In April 1975, William turned fifteen; he was then considerably older than the other students at Children’s. Mrs. Breedon explained to the board why William’s educational program necessitated a change:

"Last Spring it was decided that he should leave Children’s. This was a mutual decision. We all agreed on it. He was much older than most of their children. We all knew he could still benefit greatly from their language program but he did need to be with older children. He needed to start getting some other things, a more mature program. He needed to mature socially. So we all decided that he should leave and we should try to find another program for him.”

Thus began the search for a new school for William. On May 22, 1975, a Pupil Personnel Team for the Prince George’s County Schools reported that there was no appropriate public school in the county for a young man with William’s needs. Mrs. Breedon immediately filed for tuition funding in order to place William at the Lt. Joseph P. Kennedy Institute in the District of Columbia because "it seemed to me to be the closest thing to what he needed that I could find. It is a fully academic program. . . .”

In July 1975, a reconstituted Pupil Personnel Team reversed the prior team’s conclusion and instead proposed that William be placed at the H. Winship Wheatley Center, a facility for multiply-handicapped children operated by the Prince George’s County schools. Formal notice of the Wheatley placement was made on August 27, 1975. Not satisfied with the proposed placement, the Breedons requested a local level hearing. In early September 1975, the Breedons received formal notification that their request for tuition funding for the Kennedy Institute had been denied. Feeling very strongly that Wheatley was inappropriate for an aphasic person whose primary need was growth in linguistic ability, the Breedons enrolled him at Kennedy at their own expense.

Again, in February 1976, the Breedons attempted to convince the Prince George’s County School officials that the Wheatley school did not meet William’s needs. Their effort to have the Wheatley placement reconsidered was denied on March 12, 1976. Shortly thereafter, on March 19, 1976, a Hearing Panel of the Prince George’s County school system (local level hearing) was convened, and it received the testimony of Mrs. Breedon and various experts in the field of special education. Ruling that "William functions as a multiply handicapped youngster,” the Hearing Panel stated that the Wheatley "placement was not shown by a preponderance of the evidence to be inappropriate.” In addition, the panel concluded that "the Wheatley staff can provide reading, mathematics, and language programs which will reasonably meet Williaml’]s academic needs.”

It has been, and continues to be, the Breedons’ position that William is chiefly language-impaired. They relegate any motor or behavioral problems to secondary importance and insist that William requires a structural and linguistically-oriented academic program in order to advance his limited capability to comprehend and use the English language. They also contend that William does not function as a multiply-handicapped person, and they allege that the Hearing Panel was wrong in concluding to the contrary.

As provided by the Bylaws of the Maryland State Department of Education, the Breedons appealed to the department’s Hearing Review Board (State level hearing). At that de novo hearing, Mrs. Breedon and various experts again testified about William, his language impairment, and his educational needs. Two months later, on August 30,1976, the board affirmed the decision of the local panel, finding that "William functions educationally as a multiply handicapped child with language impairment being the primary area of disability.” The board also ruled that "the Prince George’s County Public Schools has an appropriate program that can be modified to meet the needs of your son at the Wheatley Special Education Center.”

From that adverse ruling, the Breedons again appealed, this time to the Circuit Court for Prince George’s County. They alleged that the board’s decision was "against the weight of competent, material, and substantial evidence in view of the entire record as submitted. . . See Md. Ann. Code, art. 41, § 255 (f) (5) (1979 Cum. Supp.). In addition, the Breedons argued that no public school facilities, appropriate to William’s needs, existed in Prince George’s County, and they complained about several alleged procedural deficiencies in the administrative process.

Although the order for appeal was filed on September 29, 1976, a hearing on the merits of the Breedons’ allegations was not held until September 18, 1978. At that hearing, Judge Levin received further testimony from Mrs. Breedon as well as the testimony of five experts in the field of special education. The Breedons argued that the board had received erroneous data regarding the mean I.Q. of the Wheatley class to which William would have been assigned, and that the board had compared the Kennedy and Wheatley schools in reaching its decision without giving the Breedons an opportunity to submit comparative evidence.

In a written opinion, Judge Levin affirmed the decision of the Hearing Review Board and denied the Breedons’ motion for further relief. He acknowledged that he "considered the additional evidence adduced before [me] in open court pursuant to § 255 (e) of the Administrative Procedure Act as propounded [sic] prior to the July 1,1978 amendment to that section which disallowed production of additional evidence before the Court.” Although recognizing the disparity in the I.Q. data presented before the board and the court, he did not find it "so significant to warrant the disturbance of the decision of the State Board.” He therefore concluded that the board’s decision was "clearly supported by competent, material and substantial evidence that William, as a multiply-handicapped child, would get an appropriate education suitable to his needs at Wheatley.” The court’s opinion was silent on the comparability issue raised by the Breedons.

On this appeal, the Breedons argue that the circuit court applied the wrong standard of review, under either the old or new statutes, and that the Maryland State Department of Education Bylaw which placed upon them the burden of proof of demonstrating the inappropriateness of the public school’s suggested placement at Wheatley is unconstitutional as a deprivation of life, liberty, or property without due process of law.

II. Authority of Circuit Court to Receive Additional Evidence

A significant procedural issue, although discussed by the parties in their briefs, has not been considered by them to be determinative of this appeal; we find it, however, to be dispositive. We advert to the authority of the circuit court, sitting as a reviewing court under the Administrative Procedure Act to receive additional evidence. Under prior law, "the court may order that the additional evidence be taken in open court or before the agency upon such conditions as the court deems proper.” 1957 Md. Laws, ch. 94, previously codified as Md. Ann. Code, art. 41, § 255 (e) (1978). In 1978, however, the General Assembly withdrew the authority of the circuit court to receive additional evidence; instead, the law now states that "the court may order that the additional evidence be taken before the agency upon such conditions as the court deems proper.” Md. Ann. Code, art. 41, § 255 (d) (1979 Cum.Supp.). See 1978 Md. Laws, ch. 884. This latter provision became effective on July 1, 1978.

A. Applicability of the 1978 Amendments

As we previously noted, the order for appeal to the circuit court from the Hearing Review Board was filed on September 29,1976; this was, of course, prior to the 1978 amendments to the APA. The hearing on the Breedons’ appeal did not occur until September 18, 1978 — two and one-half months after the APA had been amended by 1978 Md. Laws, ch. 884. A threshold question thus arises: did the APA amendments revoking the authority of the circuit court to receive additional evidence apply to this proceeding in which the appeal was docketed prior to the amendments but the hearing was held after the amendments became effective? Although the parties never directly raised the issue in the circuit court, the question of the circuit court’s authority to receive additional evidence is, in our view, a question of jurisdiction which may be raised at any time, or by this Court sua sponte. Maryland National Capital Park & Planning Commission v. Washington National Arena, 37 Md. App. 346, 377 A.2d 545 (1977), rev’d on other grounds, 282 Md. 588, 386 A.2d 1216 (1978); see Mayor of Annapolis v. Hartge, 38 Md. App. 629, 382 A.2d 345 (1978); Thompson v. State, 38 Md. App. 499, 381 A.2d 704 (1978). If the amended APA provisions apply to this action, the circuit court had no authority to receive additional evidence; such evidence could only be received by the agency involved pursuant to the circuit court’s order. Md. Ann. Code, art. 41, § 255 (d) (1979 Cum.Supp.).

Under the terms of 1978 Md. Laws, ch. 884, the APA amendments became effective on July 1, 1978. There is no express statutory language that exempts pending actions from the amended provisions, nor is there any language which specifically denies an exemption. The general rule guiding the applicability of statutes to pending actions is that:

"Absent a contrary intent made manifest by the enacting authority, any change made by statute or court rule affecting a remedy only (and consequently not impinging upon substantive rights) controls all court actions whether accrued, pending, or future.”

Aviles v. Eshelman Electric Corp., 281 Md. 529, 533, 379 A.2d 1227, 1229 (1977). See Janda v. General Motors Corp., 237 Md. 161, 168-69, 205 A.2d 228, 232-34 (1964). See also Luxmanor Citizens Association v. Burkhard, 266 Md. 631, 296 A.2d 403 (1972) (statutory change in regard to procedure applies to all actions then pending at effective date of change); Kelch v. Keehn, 183 Md. 140, 36 A.2d 544 (1944); Ireland v. Shipley, 165 Md. 90, 166 A. 593 (1933).

We have little difficulty in holding that the revocation of the authority of the circuit courts to receive additional evidence in administrative review proceedings applied at least to those actions pending on July 1, 1978 in which evidence had not been taken under the prior law. In the instant case, therefore, the circuit court improperly received additional evidence in open court after that date. As heretofore stated, under both the old and new APA provisions relating to the taking of additional evidence, it was incumbent upon the party seeking to introduce the additional evidence to establish to "the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency.” Md. Ann. Code, art. 41, § 255 (d) (1979 Cum.Supp.) (emphasis added). The State argues that neither condition has been established by the Breedons. It follows, then, according to the State, that no referral to the agency for the taking of additional evidence is necessitated. We are asked to affirm the circuit court’s judgment because even with the additional evidence, the court was unable to overturn the board’s decision. In essence, the State contends that the circuit court’s receipt of additional evidence, while erroneous, was harmless. We do not agree.

B. Materiality

The State points out that Judge Levin ruled that the disparity in the I.Q. data was not "so significant to warrant the disturbance of the decision of the State Board,” and therefore, the evidence was not material. As to this point, we believe that the State is confusing significance with materiality. The court’s determination that the evidence was not sufficiently significant to compel a change in the State Hearing Board’s decision does not constitute a finding that the evidence was not material. Materiality, as referred to in the APA provision, is a broad concept that is generally understood to include any evidence which is reasonably capable of influencing a tribunal’s decision, but it does not require that the evidence will necessarily do so. Numerous court decisions have discussed the concept of materiality:

"A fact is material if it tends to facilitate resolution of any of the issues either for or against the party having the burden of persuasion on that issue.”

Brandon v. State, 264 Ind. 177, 180, 340 N.E.2d 756, 758 (1976). See Parklawn, Inc. v. Nee, 243 Md. 249, 254, 220 A.2d 563, 566 (1966); Dietrick v. District of Columbia Board of Zoning Adjustment, 293 A.2d 470, 473 (D.C. 1972) (issue was material where it was within conditions to be considered by the agency). In sum, material evidence need not be determinative of the outcome of a given issue, but rather, it must be of such a nature as would tend to influence the making of the decision.

The additional evidence in this case related to the error in I.Q. data presented to the State Hearing Board and the comparability of the programs at the Wheatley and Kennedy schools. Since the erroneous I.Q. data was indicative of the academic environment proposed for William at Wheatley, the evidence was clearly material in light of the extensive expert testimony that William required a challenging and structured academic program. As to the additional evidence comparing the programs at Wheatley and Kennedy, it must be remembered that the board had made an express finding that there was "no significant difference” in the two programs. Clearly, the comparability evidence was material to the decision made by the board.

C. "Good Reasons” For Non-presentation to Agency

The erroneous I.Q. data was supplied by the county, and the error was not discovered until after the board had rendered its decision. Obviously, this subsequent discovery more than satisfies the good reason requirement of the APA. During the course of the hearing before the board, the propriety of comparing Wheatley to Kennedy was discussed. The board determined that it did not require the comparability evidence at that time, but the Breedons did offer to produce it:

[BREEDONS’ COUNSEL]: "If the Hearing Panel does feel they get to a certain point where they do need this extra testimony we will be glad to furnish it.”
[THE CHAIRMAN]: "And we will be glad to notify you of the same but we want you to be cautioned that it has manifested itself and due note has been taken to it.”

It is uncontroverted that no request for supplemental testimony was ever forthcoming from the board; nonetheless the board did make comparative findings with respect to the two schools. The Breedons’ proffer coupled with the board’s assurance that a request would be made should the issue prove relevant, is sufficient to constitute good reason for failure to present that evidence before the board.

III. The Procedure for the Taking of Additional Evidence

It is our conclusion, therefore, that the circuit court properly decided that additional evidence should be received in the case, but improperly received that evidence itself. Instead, the case should have been referred to the administrative agency for the taking of additional evidence. Once the agency receives such evidence:

"[I]t may modify its findings and decision by reason of the additional evidence and shall file with the reviewing court, to become a part of the record, the additional evidence, together with any modifications or new findings or decision.”

Md. Ann. Code, art. 41,. § 255 (d) (1979 Cum. Supp.). This section does not require a complete remand of the case to the administrative agency, but rather it anticipates a referral for the receipt of additional evidence with an opportunity for the agency to modify its findings or decision. The circuit court remains a "reviewing court,” and the section clearly requires the agency to submit the additional evidence to the court along with its modifications, if any. The APA contemplates that the circuit court, while ordering additional evidence to be received by the agency, retains continuing jurisdiction over the appeal. After the agency has completed its action, the circuit court may then proceed with its consideration of the appeal on the merits. Naturally, it is possible that the additional evidence and any modification of the agency decision premised thereon may render the appeal moot or at least alter its focus.

The error in the proceedings at the circuit court level requires that we vacate the judgment of the circuit court and remand the case for further proceedings in accordance with this opinion.

Judgment vacated; case remanded to the Circuit Court for Prince George’s County for further proceedings consistent with this opinion; costs to be paid by the appellees.

      . Aphasia is defined as the: "Partial or total loss of the ability to articulate ideas in any form, resulting from brain damage.” The American Heritage Dictionary of the English Language (1973).

      . Md. Ann. Code, art. 41, §§ 244-256A (1979 Cum.Supp.).

      . During this period of time, from 1968 to 1975, William’s tuition at Children’s was paid by the State, Prince George’s County, and the Breedons.

      . The appeal was authorized by Md. State Dept, of Educ. Bylaw 13.04.01.07.B.1 and Md. Ann. Code, art. 77, § 100A (1975), repealed by 1978 Md. Laws, ch. 22 and re-enacted and recodified in Md. Educ. Code Ann. § 8-415 (b) (1979 Cum.Supp.).

      . The appeal to the circuit court is authorized under the APA, Md. Ann. Code, art. 41, § 255 (a) (1978) and Md. Educ. Code Ann. § 8-415 (f) (1979 Cum.Supp.). It may be noted that a federal statute also affords a right of appeal to aggrieved parties from State level decisions, "which action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.” 20 U.S.C. § 1415 (e) (2) (1976).
      The federal statute also provides:
      "In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.”

        Id. It is axiomatic that the federal statute does not enlarge the Maryland courts’jurisdiction to hear cases nor can it alter the standard of review set out in Md. Ann. Code, art. 41, § 255 (e) (1979 Cum.Supp.). The apparently broader standard of review is available only in the federal district court. The Md. Code provision dealing with the review of an educational placement decision for a handicapped child provides:

        "Except for a review by a circuit court or by the Baltimore City Court, any review requested by a parent or guardian of a handicapped child shall be conducted in conformity with this section and any applicable federal law.”
      Md. Educ. Code Ann. § 8-415 (g) (1979 Cum.Supp.). (Emphasis added.) See also Moore & Bulman, Recent Changes in the Law Affecting Educational Hearing Procedures for Handicapped Children, 7 U. Balt. L. Rev. 41, 60-61 (1977). Section 8-415 (g) read in conjunction with the APA standards of review clearly establishes that APA § 255 is to guide the reviewing court on appeal from a State Hearing Board decision.

      . We glean from the record that the hearing was continued several times. In part, this delay was caused by the State’s unsuccessful attempt to quash summonses of State education officials which the Breedons had issued for the hearing.

      . As discussed in part II, infra, the court, at the time of the hearing, lacked the authority to receive de novo evidence by virtue of an amendment to the APA. 1978 Md. Laws, ch. 884, effective July 1, 1978.

      . By the date of the hearing, William was no longer attending the Kennedy Institute. Apparently, the Breedons and the Prince George’s County school officials negotiated and selected a mutually acceptable private school for William. Thus, in this proceeding, the Breedons’ entitlement to a tuition reimbursement for the 1975-76 school year which William spent at Kennedy is alone involved.

      . An apparent error was made by the circuit court when it characterized the I.Q. data as relating to "the difference in William’s I.Q. as reported at the hearing levels and as presented in open court.” In fact, the discrepancy in the I.Q. data related to the mean I.Q. of the class into which it was proposed that William would be placed; the data did not refer to William’s own I.Q.

      . Under the prior statute, three of the eight possible standards of review applied specifically to the evidentiary basis for the administrative decision. If the court elected to receive additional evidence itself (a procedure no longer permitted under the current APA), then the administrative decision could be upset by the court if it was found to be:
      "(6) Against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency and including de novo evidence taken in open court; or

        (7) Unsupported by the entire record, as submitted by the agency and including de novo evidence taken in open court....”
      1957 Md. Laws, ch. 94 previously codified in Md. Ann. Code, art. 41, § 255 (g) (5) & (6) (1978), repealed by 1978 Md. Laws, ch. 884.
      When the court merely reviewed the administrative record without receiving additional evidence, it could overturn the agency decision if it was:
      "(5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted....”
      Md. Ann. Code, art. 41 § 255 (f) (5) (1979 Cum.Supp.), previously codified in Md. Ann. Code, art. 41, § 255 (g) (5) (1978). Cf. Model State Administrative Procedure Act (1944).
      Equating standard number 6 with the “weight of the evidence” test, the Breedons argue that the circuit court improperly used the "substantial evidence” test of standard number 5. They assert that the "substantial evidence” test was incorrectly applied because the circuit court received additional evidence and “attempts to use a 'substantial evidence’ test where evidence extraneous to the agency record is involved will always result in decisions based on only part of the record.” It is their position that the reviewing court, upon the receipt of new evidence, must weigh all of the evidence in the record, both new and old, in order effectively to evaluate the administrative agency’s decision. Any review of lesser scope would not, according to the Breedons, produce the consideration of the totality of the record as envisaged under the standard number 6 “weight of the evidence” review. Of course, this dilemma is removed by the amendments which prohibit the court from receiving de novo evidence; all such evidence must now be taken by the agency during its proceedings or on referral or remand from the court. See Md. Ann. Code, art. 41, § 255 (d) (1979 Cum.Supp.).

      . The Bylaw under which the local level hearing was conducted stated in part that:
      "The ultimate burden of proving or disproving appropriateness by a preponderance of the evidence shall be upon the parent(s) or guardian(s)....”
      Md. State Dept, of Educ. Bylaw 13.04.01.21.B.6 (h). "Appropriateness” is the standard by which a proposed educational placement is to be judged, see Md. Educ. Code Ann. § 8-409 (a) (1978); under the Bylaw then in effect the Breedons were required to disprove the appropriateness of the proposed placement of William at Wheatley.
      We are told by the State in its brief that the Bylaw has been amended to read in part:
      "The responsibility for explaining the initial placement recommendation shall be upon the local education agency.”
      Md. State Dept. of Educ. Bylaw 13.04.01.07.A.7 (h). The foregoing provision applies only to the local level hearing.

        At the state level, no specific regulation provides for a burden of proof on either party. Presently, the Bylaws state that the "decision of the Hearing Review Board shall be based on the information presented on the record at the State hearing.” Md. State Dept. of Educ. Bylaw 13.04.01.07.B.7 (b). See 5:10 Md. R. 782 (May 19,1978); 5:5 Md. R. 345 (March 10, 1978); and 4:25 Md. R. 1929 (December 2, 1977).

      . It was incumbent upon the party offering the additional evidence, prior to its introduction, to satisfy the court that the evidence was material to the administrative decision and that good reasons existed for the failure to adduce the evidence in the administrative proceedings. See section II B&C, infra.

      . The threshold determination discussed in note 12, supra, is still required as a precondition to the receipt of additional evidence under the amended APA. See sections II B&C, infra.

      One exception under which the circuit court may itself receive evidence on the appeal survived the 1978 amendments:
      "In cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in the court.”
      Md. Ann. Code, art. 41, § 255 (e) (1979 Cum.Supp.). See also: Lamar v. Illinois Racing Bd., 55 Ill. App. 3d 640, 370 N.E.2d 1241 (1977); Blesso v. Bd. of Plumbing and Piping Examiners, 30 Conn. Supp. 262, 310 A.2d 136 (1973) [both cases construe similar provisions of the Model State Administrative Procedure Act],

      . Under the amended APA provisions, the weighing of the additional evidence is no longer a function performed by the court, but rather by the agency in the first instance on referral from the court. Md. Ann. Code, art. 41, § 255 (d) (1979 Cum.Supp.). We deem this procedure wholly salutary because it properly requires that the administrative agency assess the significance of the additional evidence and possibly adjust its decision based on that evidence, prior to a full and complete review by the court of the administrative record. In the field of public education, where administrative expertise is afforded the widest latitude, see Resetar v. State Bd. of Educ., 284 Md. 537, 554, 399 A.2d 225, 234, cert. denied, 444 U.S. 838, 48 U.S.L.W. 3219 (1979), this procedure maintains the requisite administrative independence and flexibility while preserving ultimate judicial oversight as a bulwark against arbitrary and capricious action.

      . Black defines material evidence as:
      "That quality of evidence which tends to influence the trier of fact because of its logical connection with the issue. Evidence which has an effective influence or bearing on [the] question in issue is 'material’. . . . 'Materiality’ of evidence refers to pertinency of the offered evidence to the issue in dispute.”
      Black’s Law Dictionary (5th ed. 1979). For other cases which discuss and define the concept of materiality, see Migliore v. County of Winnebago, 24 Ill. App. 3d 799, 321 N.E.2d 476 (1974); United States v. Makris, 483 F.2d 1082 (1973), appeal after remand, 535 F.2d 899 (5th Cir. 1976), cert. denied, 430 U.S. 954 (1977); and Weinstock v. United States, 231 F.2d 699 (D.C. Cir. 1956).

      . Normally, the sole issue before the board is the "appropriateness” of the placement proposed by the local school officials and approved at the local level hearing. See note 11, supra. In the instant case, the board chose to evaluate the propriety of the proposed Wheatley placement in light of other programs such as that at Kennedy. As a reviewing court, we cannot gainsay the board’s decision to use such comparability data in deciding the propriety of the Wheatley placement. Those matters of internal operation, procedure, and evidence are typically consigned to the expertise of the administrative agency.

      . Other circumstances, such as an alleged defect in the administrative proceeding exceeding the mere failure to receive certain additional evidence, may mandate a complete remand of the case under § 255 (f) rather than a referral for the taking of additional evidence under § 255 (d). Md. Ann. Code, art. 41, § 255 (1979 Cum. Supp.). Since, in the instant case, the defect in the board’s hearings relates only to a failure to receive additional evidence, a full remand to the board from the circuit court is not necessitated. See also Toland v. State Board of Education, 35 Md. App. 389, 398, 371 A.2d 161, 166 (1977).

      . Nothing in the APA prevents the parties, of course, from stipulating that the additional evidence received by Judge Levin be submitted to the board on referral from the circuit court.

      . Because the Bylaw challenged by the Breedons on due process grounds has been amended and presumably as amended will guide any further proceedings in this case at the administrative level, we do not decide the merits of the Breedons’ due process claims. See n. 11, supra. But see Stemple v. Bd. of Educ. of Prince George’s County, 464 F. Supp. 258 (D. Md. 1979), appeal docketed, (No. 79-1208, 4th Cir., March 30, 1979) (upholding constitutionality of the prior Bylaw against due process challenge).


author: Liss, J.,

text:
    HERBERT EVERETT MOSLEY, JR. v. STATE OF MARYLAND
    [No. 668,
    September Term, 1979.]

      Decided March 5, 1980.

    The cause was argued before Morton, Melvin and Liss, JJ.

      Victoria A. Salner, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, AndrewL. Sonner, State’s Attorney for Montgomery County, and Irma S, Raker, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

On April 3, 1979, Herbert Everett Mosley, Jr., the appellant, was convicted by a jury in the Circuit Court for Montgomery County (Cave, J.), of armed robbery, use of a handgun and carrying a handgun. On May 28, 1979, he was committed to the custody of the Division of Correction for a ten-year term for the armed robbery, a five-year term for the use of a handgun and a one-year term for the carrying of a handgun. Five years of the ten-year robbery sentence was suspended and all sentences were set concurrent to each other. On appeal the appellant contends that the court erred in denying his motion to suppress certain evidence that was the result of a search and seizure and that it erred in not rehearing his suppression motion prior to trial.

The record before us shows that about 6:00 P.M. on Friday, November 24, 1978, when Loretta Lane parked her car outside her residence, she was accosted by two young men, one of whom was carrying a handgun. They robbed her of her briefcase and twenty dollars cash before fleeing. She called the police. At about 1:00 A.M. the following morning, the police requested her to come to the station where she identified and recovered her property. At trial she identified the appellant as one of the two persons who had robbed her.

On March 9,1979, a hearing was held in the Circuit Court for Montgomery County (Latham, J.), on the appellant’s motion to suppress certain evidence. The appellant maintained that Detective Daniel Worthman illegally stopped and detained him; that the illegal stop led to an illegal search and seizure, and that the illegal seizure, the recently stolen wallet of Loretta Lane, in turn led to his arrest, confession and conviction. Judge Latham ruled that the stop was permissible and that the appellant gave his consent to the search and seizure.

Immediately prior to trial on April 12,1979, in the Circuit Court for Montgomery County (Cave, J.), the appellant requested the court to grant a new suppression hearing. The court refused to do so and permitted Judge Latham’s ruling to stand. Appellant now contends that his motion to suppress was improperly denied because:

(a) Judge Latham erred in not finding the stop was illegal;
(b) Judge Latham erred in finding that the appellant consented to the search.

Detective Worthman of the Takoma Park Police explained that he was an expert in the area of crime prevention and his job was to roam around "high crime areas” dressed in old undistinguished mufti looking for suspicious activity. At about 7:00 P.M. on November 24,1978, in an unmarked car, he passed the Langley Shopping Center and saw two young men "standing in front of the Kress Store.” He explained that "they were looking up and down the parking lot and looking in the Kress Store towards the area where there [were] cash registers.” Knowing this was in a high crime area, Worthman became suspicious. He said:

I pulled my vehicle around and parked in the parking lot around several other cars to conceal my vehicle and that was approximately seventy to a hundred feet away and I observed the individuals continually pace back and forth in front of the Kress, continually looking inside, continually looking out into the parking lot. On several occasions one would lean against the pole on the outside of the doors and watch the inside area near where the cash registers were, at while one of the individuals would walk around the cash registers, pause and look at the candy bars —
After they went in and out of the store about once or twice each and they continued to walk back and forth for a few minutes — this went on for about fifteen minutes. I then observed the two individuals proceed to a yellow Pontiac with Virginia registration that was parked in the parking lot in an unusual manner.
* * *
As I observed the individuals walk it was approximately a hundred and fifty to two hundred feet away from the Kress Store and enter this vehicle that was parked in that manner. They turned around and slowly started riding back down the shopping center in a kind of slow manner. At that point I stopped the vehicle.

When the car stopped, Worthman said he approached the driver, who was the appellant, and asked for his driver’s license and car registration. He then radioed a request to his headquarters to verify the appellant’s identification. While he was waiting for the reply, he walked back to the appellant’s car. By this time the appellant was standing outside his car but his companion was still seated in the front seat on the passenger’s side. Worthman’s testimony then went on:

Q. Corporal, tell us what if anything was said or if nothing was said, what if anything you observed.
A. Well, I advised the driver of the car, Mr. Mosley, that this area had been a high area of armed robberies and that I’d like to look in his vehicle as I had observed on the back floorboard behind the passenger side a large leather bag that reminded me of a pocketbook and since there was no women in the car I asked him if I could look at it.
Q. All right. What if anything did he say when you said that to him?
A. He said he didn’t care if I looked at it.
Q. So after he said that, what happened next?
A. Well, I reached in. I got the bag. I pulled it out and discovered that it was a briefcase. I then pulled out a wallet and I started —
Q. Where did you pull the wallet from?
A. From within the briefcase and I then started looking through the identification and noticed that it belonged to a black female, I believe in her thirties, who lived in Silver Spring. I then asked Mr. Mosley who the items belonged to and he said it belongs to his cousin. And I then asked him how old his cousin was since I noticed the I.D. showed that she was considerably older than what he would be, around his age group, and he said he didn’t know.
I then asked him what his cousin’s name was and he also said he didn’t know.

Worthman instructed the appellant to get back in his vehicle. Worthman again radioed to his headquarters to find out if a Lane had recently been involved in a crime.

A few minutes later two police cruisers arrived. They told Worthman that Lane had, just within the hour, been robbed by two men. The appellant and his juvenile companion were immediately arrested. The car was thoroughly searched. A derringer handgun, found hidden in the back seat, was seized. After being advised of his Miranda rights the appellant admitted that he had robbed Lane.

The appellant testified to a different version of events. He explained that there were two attractive young girls in the Kress Store and that he, and his companion, had been merely looking at the girls. He specifically denied that he gave Detective Worthman permission to inspect the briefcase. He said Worthman had opened the case and seized the wallet over his objections.

As we perceive this case, there are really only two issues. The first is whether the stop, under the authority of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), was permissible. The other is whether the consent exception authorized by the Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), is applicable.

In Terry v. Ohio, supra, the Supreme Court held that the police may "stop” a person, without violating the person’s Fourth Amendment right against unreasonable search and seizures, and detain him briefly for questioning upon suspicion that he may be connected with criminal activity. The key to the stop is whether the officer had reasonable "suspicion” to justify the stop. Six variables have been suggested as means of determining whether a reasonable suspicion exists. These include:

1. The appearance of the detainee

2. Conduct

3. Criminal record

4. Environment

5. Police purpose

6. Source of information

Variables one and three are not applicable in the instant case but elements of the other four are present. Conduct encompasses activity taking place both immediately before the stop and immediately following the stop. If suspicious conduct occurs in either instance, an officer may initiate a forcible investigative stop.

In the instant case Worthman observed the appellant for about fifteen minutes. He saw the appellant and his companion walking around and looking in a store with no apparent intent to make any purchase. He then observed the appellant backing his car up to the front of the store and parking it in a position to facilitate a quick get-away. These observations were sufficient to justify a reasonable suspicion that a robbery was being planned.

The place of the stop further supports Worthman’s suspicion. He testified that he knew many crimes had been committed in the area within the preceding few weeks including two armed robberies within two blocks of the Kress Store. Thus the environment further supports his suspicion in this case.

The purpose of the stop was to prevent a potentially violent crime and was not prompted by any other ulterior motives. Since the Terry holding involves a balancing of the need to stop against the Fourth Amendment guarantee of privacy, it suggests that the articulable facts necessary to satisfy the Terry test should decrease as the severity of the investigated crime increases. The purpose variable in this case indicates that only minimum suspicion would be required to justify the stop.

The remaining variable concerns the source of information. Since the source was Worthman’s own observations, it was highly reliable. Considering these variables, we have no difficulty in concluding that Worthman had a reasonable suspicion sufficient to justify a stop and temporary detention.

The trial court found that the facts and circumstances as related by the police officer met the criteria stated in Terry v. Ohio, supra, and justified a reasonable stop. There is no distinction to be made between the reasonable stop of an individual and a vehicle in which he is either a driver or occupant. Williams v. State, 19 Md. App. 204, 210, 310 A.2d 593 (1973). Assuming the officer is able to enunciate facts which justify an articulable suspicion based on specific actions, together with the rational inferences properly drawn therefrom, which warranted a reasonable suspicion on the part of the officer that a crime was being committed, was about to be committed or had been committed, then under Terry v. Ohio, supra, the vehicle is subject to a reasonable investigatory stop. In this case, appellant and his companions having aroused the officer’s suspicions by their odd and unusual behavior which was consistent with the activity of "casing” the store preparatory to an effort to rob the persons in the store, may not escape the ambit of Terry by entering their vehicle as a shield against the officer’s justifiable action in effecting a reasonable stop of the vehicle.

This case is distinguishable on the facts from the cases of Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), and Goode v. State, 41 Md. App. 623, 398 A.2d 801 (1979), which appellant cites in support of his position. In each of these cases, the stopping officer was unable to give any articulable facts which would have justified the interposition of the law as stated in Terry. See also, United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975).

In Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), the Supreme Court had before it a case in which the issue was whether a police officer, on the basis of the facts recited at trial, had the right under Terry v. Ohio, supra, to make a reasonable investigatory stop of a motor vehicle operated by the defendant. In confirming the right of the officer to make such a reasonable stop, Justice Rehnquist, speaking for a majority of the Court, said:

In Terry this Court recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Id., at 22, 20 L.Ed.2d at 906. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.
See id., at 23, 20 L.Ed.2d at 907. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Citations omitted.] [407 U.S., at 145-46.]

We conclude that the officer’s actions in stopping the motor vehicle in this case was appropriate and justifiable in the light of the factual situation as he related it at trial.

In ruling on Worthman’s seizure of the briefcase, Judge Latham held:

In connection with the search I don’t have any problem with that, that he asked Mr. Mosley, and Mr. Mosley for reasons that he hasn’t expressed to me here today I feel consented to the search. I don’t have any problem about this and certainly having consented to it it wasn’t an improper search and there would be no reason to suppress the evidence that was found as a result of that search and certainly after having received the information of the armed robbery that had taken place an hour or so before this and finding the fruits of that armed robbery in the back seat of the Mosely vehicle he was — they were justified in arresting these two men and then including a search of the car.

The question of whether a valid consent was given depends upon a determination of the credibility of the witnesses. Worthman said consent was given and the appellant said it was not. In Jones v. State, 13 Md. App. 309, 312-13, 283 A.2d 184 (1971), we said:

The Fourth Amendment to the Constitution of the United States does not prohibit all searches. Its protection is afforded against "unreasonable searches and seizures” and a search and seizure is not unreasonable if grounded upon valid consent. However, when as here, a consensual search is effected, the courts must look to the circumstances surrounding the search in order to ascertain the validity vel non of the consent. The reasonableness of any search depends upon the facts and circumstances of each case. [Citations omitted.]

In the instant case, the court made a specific finding of fact that it believed Worthman and that evidence is sufficient to support the court’s conclusion. We find no error in the court’s upholding the search of the briefcase on theory of the consent exception to the warrantless search rule. Schneckloth v. Bustamonte, supra; State v. Wilson, 279 Md. 189, 367 A.2d 1223 (1977).

Having found Judge Latham’s ruling that the stop was legal, and that the search and seizure of the wallet was also proper, the appellant’s objection to the court’s refusal to rehear his motion immediately before trial becomes moot.

Judgments affirmed.

Costs to be paid by appellant.

      . Van Sicklen, "Terry Revisited: Critical Update on Recent Stop and Frisk Developments,” Wisconsin Law Review 877 (1977).