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September 9, 1997


Appeal from the Order of the Court of Common Pleas of Lehigh County, Criminal Division at No. 3009 of 1991.

Before: McEWEN, P.j., Popovich and Olszewski, JJ. Opinion BY Popovich, J. McEWEN, P.j. Concurs in the Result.

The opinion of the court was delivered by: Popovich


Filed September 9, 1997

The appellant, Ronald Burns, appeals the order denying his motion to suppress. We affirm.

In reviewing the denial of a motion to suppress, we consider only the evidence of the prosecution's witnesses and so much of the evidence of the defense as fairly read in the context of the record as a whole remains uncontradicted. Commonwealth v. Granberry, 346 Pa. Super. 395, 499 A.2d 671, 674 (1985). Further, this Court must decide whether the record supports the factual findings of the court below and the legitimacy of the inferences drawn from those findings. Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260, 1262 (1977).

The record reveals that Allentown Police Officer David Rachman arranged, through a confidential informant, to purchase drugs from the appellant in the early afternoon of October 8, 1991. Prior to the transaction, Officer Rachman met the informant and the two agreed where the transaction would take place, the time of the exchange, the quantity and cost of the drugs. Also, one-half hour before the scheduled meeting, the officer checked the informant for money and drugs, and they agreed on a signal to be given by the informant once he saw the drugs in the custody of the appellant.

Once Officer Rachman and the informant reached the designated site, the appellant was seated in his vehicle awaiting the informant's arrival. The informant made his way to the appellant's vehicle and sat in the driver's seat. Within less than a minute, the informant exited the vehicle and gave the signal letting the police know the appellant was in possession of drugs. The appellant's vehicle was encircled by officers from the Drug Task Force, and the appellant was arrested.

As the appellant was being removed from the vehicle by Officer Rachman, "he stated, I don't know anything about the cocaine that was dropped by the guy that was in the car with him." In turn, Police Officer Christopher Cruz, observing the appellant place an item between the front seats, reached in the same location and uncovered a large plastic bag with a white powdery substance later tested to be cocaine.

The appellant was charged with possession with intent to deliver a controlled substance, possession of a controlled substance and criminal conspiracy. After the appellant's omnibus pre-trial motion to suppress was denied, a jury returned a verdict of guilty on all charges. Post-trial motions were denied and a 5-15 year sentence of imprisonment was imposed. On appeal to this Court, appellate counsel raised the denial of the motion to suppress issue. The Commonwealth argued that the issue was waived because it was not raised in post-trial motions. We agreed.

Thereafter, the appellant filed a Post-Conviction Relief Act petition alleging the ineffectiveness of post-trial counsel in failing to argue the suppression issue at that level. The PCRA court agreed and granted the appellant a new appeal limited to the "issue of whether evidence seized pursuant to a warrantless search of [his] vehicle, and the fruits thereof, should have been suppressed."

The Pennsylvania Supreme Court has held the rule permitting warrantless searches of automobiles is limited to cases where "unforeseen circumstances involving the search of an automobile [are] coupled with the presence of probable cause". Commonwealth v. White, 543 Pa. 45, 669 A.2d 896, 901 (1995). The United States Supreme Court, on the other hand, has ruled that a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more." Pennsylvania v. Labron, U.S. , 135 L. Ed. 2d 1031, 116 S. Ct. 2485, 2487 (1996). The dichotomy between the two high Courts in the area of warrantless searches of automobiles is remarked upon to focus on the heightened protection afforded citizens of this Commonwealth under the Pennsylvania Constitution (Article I, Section 8) versus that provided by the federal courts under the United States Constitution (Fourth Amendment). White, supra.

The enhanced protection afforded under Pennsylvania's Constitution is triggered by an accused's argument that he rests his suppression claim on an adequate and independent state ground. In the absence of such a "plain statement" sufficient to tell us the federal law was being used only for the purpose of guidance, we are not inclined to restrict our review of the appellant's suppression issue to violations of Pennsylvania's Constitution. Stated otherwise, that the appellant sought the suppression court to reach a result favorable to him predicated solely upon state law is not the case here. Michigan v. Long, 463 U.S. 1032, 1041, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983).

The appellant alleged in his initial appeal to this Court that the "trial court erred in failing to suppress the evidence that was obtained from appellant's car. Specifically, appellant contend[ed] that the evidence was obtained in violation of his Fourth Amendment rights against unreasonable search and seizure because the police did not have a warrant and exigent circumstances did not exist." Commonwealth v. Burns, 454 Pa. Super. 701, 685 A.2d 1040 (1996) (Memorandum at page 4) (Emphasis added). In his hand-written Petition For Writ of Habeas Corpus, the appellant also ...

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