author: HUDOCK, Judge.

text:
    654 A.2d 1109
    COMMONWEALTH of Pennsylvania, Appellee, v. Vicki Jean FEWELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 15, 1994.
    Filed Feb. 10, 1995.

      Michelle H. Kelly, Erie, for appellant.
    James K. Vogel, Asst. Dist. Atty., Erie, for Com., appellee.
    Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   HUDOCK, Judge.

This is an appeal from the judgment of sentence imposed after Appellant was convicted in a jury trial of endangering the welfare of a child. Timely filed post-trial motions were denied and Appellant was sentenced to a term of imprisonment for a minimum of ninety days and a maximum of twelve months. This timely appeal followed. We affirm.

The events which led to Appellant’s conviction occurred on December 11, 1990, when her four-month-old son, Matthew Fewell, died by asphyxiation. When police originally questioned her, Appellant claimed that the night before his death, she accidentally left a plastic grocery bag in her son’s crib while she was cleaning and changing the liners in the garbage cans. Appellant explained to police that after she placed her son in his crib for his afternoon nap, at approximately 12:30 p.m., she left his room to attend to her five-year-old daughter. When she returned to her son’s room at approximately 2:00 p.m., she found him with the plastic bag over the top of his face. Appellant theorized that the infant found the plastic bag lying in his crib, placed it over his face, and suffocated himself. The police initially ruled the infant’s death an accident and closed the investigation in 1991.

Following her son’s death Appellant experienced severe depression and suicidal ideation which necessitated hospitalization in St. Vincent’s mental health facility. On January 23, 1992, Appellant was involuntarily committed to the mental health facility pursuant to the Pennsylvania Mental Health Procedures Act, 50 P.S. § 7101 et seq. During counselling sessions in February of 1992, Appellant revealed to her psychiatrist, Dr. Lance Besner, that she intentionally placed the plastic bag over her son’s head to stop his crying. Without obtaining Appellant’s prior consent, Dr. Besner immediately contacted the Erie County Coroner’s office and reported Appellant’s inculpatory statements. Appellant waited outside of Dr. Besner’s office when he contacted the coroner. The coroner reopened the investigation into the child’s death and changed the manner of death noted on the infant’s death certificate from “accident” to “homicide.” On April 13, 1992, Trooper Dana Anderson of the Erie County Police visited Appellant at her house and requested her to explain the events which led to her son’s death. Appellant agreed to accompany Trooper Anderson to police barracks where, after being read her Miranda rights, she repeated her confession. Two days later Appellant was arrested and charged with criminal homicide, recklessly endangering another person, endangering the welfare of a child, and providing false reports to law enforcement authorities. A jury trial was held from January 20 to 25, 1994, where Appellant was found guilty of endangering the welfare of a child. Appellant was acquitted of all other charges. This timely appeal followed in which Appellant presents three issues for our review:

[1.] Whether the trial court erred in denying [Appellant’s] pre-trial motion for habeas corpus relief?
[2.] Whether • the trial court erred in admitting [Appellant’s] statement to the police at trial prior to the Commonwealth’s proof of corpus delicti?
[3.] Whether the trial court erred in allowing Dr. [Besner] to testify to statements made by [Appellant] over [Appellant’s] objection and in violation of the psychiatrist-patient privilege?

Appellant’s Brief, at p. 1.

Appellant addresses the first two issues together. She contends that the Commonwealth improperly introduced her confession at the preliminary hearing before it established the corpus delicti of the crimes charged. Appellant claims that the District Magistrate should not have held her over for trial at the preliminary hearing because the Commonwealth offered no proof that a crime occurred, absent her inculpatory statements. Therefore, she concludes that it was error for the trial court to deny her pre-trial request for habeas corpus relief.

Appellant’s allegation of error at the preliminary hearing is moot. In Commonwealth v. Tyler, 402 Pa.Super. 429, 587 A.2d 326 (1991), this Court held that “[o]nce appellant has gone to trial and been found guilty of the crime, any defect in the preliminary hearing is rendered immaterial[.]” Id. 587 A.2d at 328. In Tyler, the appellant appealed from a judgment of sentence entered after a jury convicted him of possession and delivery of a controlled substance. The appellant claimed that the Commonwealth established its prima facie case at the preliminary hearing by the hearsay testimony of a confidential police informant, thus violating his constitutional right to confront his accuser. This Court rejected the appellant’s claim and held that “[sjince the Commonwealth met its burden of proving appellant guilty beyond a reasonable doubt at trial, even if the Commonwealth had failed to establish a prima facie case at the preliminary hearing, it is immaterial.” Id. (citations omitted). See also Commonwealth v. Murray, 348 Pa.Super. 439, 502 A.2d 624 (1985), alloc. den., 514 Pa. 642, 523 A.2d 1131 (1987) (violation of appellant’s sixth amendment right to a public preliminary hearing was not reversible error since error was cured at trial).

Appellant’s argument that the district justice should not have held her over for trial at the preliminary hearing became moot once she was convicted by a jury at a fair and impartial trial. See Commonwealth v. Owens, 437 Pa.Super. 64, 649 A.2d 129 (1994).

Next, we address Appellant’s claim that the trial court erred in allowing Dr. Besner to testify to statements she made while in his psychiatric care. Appellant claims that her incriminating statements were protected under both the psychiatrist-patient privilege and the Mental Health Procedures Act.

42 Pa.C.S. § 5944 sets forth the privilege between psychiatrists and patients. It states:

No psychiatrist ... shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.

42 Pa.C.S. § 5944.

The psychiatrist-patient privilege, which was modeled after the attorney-client privilege, codified a strong public policy that confidential communication made by a patient to his psychiatrist should be absolutely protected from disclosure. “Information which is protected by an absolute statutory privilege is not subject to disclosure.... ” Commonwealth v. Eck, 413 Pa.Super. 538, 544, 605 A.2d 1248, 1252 (1992). We have previously explained the rationale for this privilege:

The privilege afforded by § 5944 was intended to inspire confidence in the client and to encourage full disclosure to the psychologist [and psychiatrist]. By preventing the latter from making public any information which would result in humiliation, embarrassment or disgrace to the client, the privilege is designed to promote effective treatment and to insulate the client’s private thoughts from public disclosure.

Commonwealth v. Kyle, 367 Pa.Super. 484, 500, 533 A.2d 120, 128 (1987), alloc. den., 518 Pa. 617, 541 A.2d 744 (1988).

Recognizing that the psychiatrist-patient privilege serves to protect the privacy interests of the patient, it has been suggested in several Pennsylvania appellate decisions that the privilege is based on the patient’s constitutional right of privacy. A plurality of the Supreme Court of Pennsylvania recognized that a patient’s right of privacy, which is protected by both the federal and Pennsylvania Constitutions, prevents a doctor from disclosing information he obtained during the course of psychotherapy. In Re B., 482 Pa. 471, 485-87, 394 A.2d 419, 426 (1978). In that case the trial court subpoenaed the psychiatric records of the mother of a delinquent child in order to determine his proper custody placemént. The mother’s psychiatrist refused to release the records without her consent and was held in criminal contempt. The psychiatrist argued that the records were privileged from judicial disclosure by the doctor-patient privilege and the patient’s constitutional right of privacy. Justice Manderino wrote the plurality opinion and held:

“... an individual’s interest in preventing the disclosure of information revealed in the context of a psychotherapist-patient relationship has deeper roots than the Pennsylvania doctor-patient privilege statute, and that the patient’s right to prevent disclosure of such information is constitutionally based. This constitutional foundation emanates from the penumbras of the various guarantees of the Bill of Rights, Griswold v. Connecticut, [381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) ], as well as from the guarantees of the Constitution of this Commonwealth____”

Id. 482 Pa. 483, 394 A.2d at 425. Only one Justice joined in Justice Manderino’s opinion that the psychiatrist-patient privilege is based on the constitutional right of privacy, while two justices concurred in the result without filing an opinion. Justice Roberts concurred in the result but held that no constitutional question was presented. Former Chief Justice Eagen dissented but recognized that in certain cases the right of privacy may prevail over the need to disclose a patient’s medical records. Justice Pomeroy, joined by Justice Nix, dissented because they believed that it was unnecessary to address the constitutional argument. Since Justice Manderino did not gather majority support for his opinion that the privilege is constitutionally protected, we must treat his opinion as non-precedential. See Miller v. Colonial Refrigerated Transportation, Inc., 81 F.R.D. 741 (1979), for a discussion of the precedential value of In re B., supra 482 Pa. at 471, 394 A.2d 419.

More recently several members of our Supreme Court recognized that the statutory physician-patient privilege is rooted in the United States and Pennsylvania Constitutions in In Re The June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 415 A.2d 73 (1980). Then Chief Justice Eagen, writing for three members of the Court, held:

Clearly, the privacy interest of the patients which is implicated under the instant set of facts is the interest in avoiding disclosure of personal matters. This privacy interest finds explicit protection in the Pennsylvania Constitution, Art. 1, § 1, which provides, in pertinent part: “All men ... have certain inherent and indefeasible rights, among which are those ... of acquiring, possessing, and protecting property and reputation ____” Disclosure of confidences made by a patient to a physician, or even of medical data concerning the individual patient could, under certain circumstances, pose such a serious threat to a patient’s right not to have personal matters revealed that it would be impermissible under either the United States Constitution or the Pennsylvania Constitution.

Id. 415 A.2d at 77-78 (Eagen, C.J., joined by O’Brien and Kauffman, JJ.). Both dissenting justices agreed that the privacy interest in preventing disclosure of medical records finds explicit protection in the United States and Pennsylvania Constitutions. See also Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509, 513, 444 A.2d 1299, 1301 (1982) (in accord with In re B., supra, 482 Pa. at 471, 394 A.2d 419, access to patient’s psychiatric records violated her constitutional right to privacy).

The Commonwealth and trial court concede that Appellant’s communications with Dr. Besner, where she admitted that she intentionally suffocated her son, were protected by the psychiatrist-patient privilege. However, they contend that Appellant waived this privilege by subsequently revealing the same information to Trooper Anderson. The Commonwealth relies on Commonwealth v. Hancharik, 534 Pa. 435, 633 A.2d 1074 (1993), to support this proposition.

We disagree that our Supreme Court’s holding in Hancharik dictates that we find that Appellant waived her privilege. In Hancharik, the appellant was convicted of involuntary deviate sexual intercourse, indecent assault, and corruption of a minor. On appeal the appellant claimed that his trial counsel was ineffective for failing to object to testimony of his wife which revealed that he had previously expressed his desire to adopt an older girl whose age was similar to the age of his victim. The appellant argued that his communications were confidential and thus protected under the statutory privilege for confidential communication between spouses, 42 Pa.C.S. § 5914. That statute provides:

[I]n a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial.

42 Pa.C.S. § 5914.

Our Supreme Court held that appellant waived the statutory privilege of 42 Pa.C.S. § 5914 by telling many people, other than his wife, that he wished to adopt an older girl. Because the appellant did not make the statement to his wife in confidence, it was not protected under the terms of the statutory privilege.

Unlike the statements made in Hancharik, Appellant’s statement to Dr. Besner was made in confidence while she sought his professional psychiatric help. Appellant relied on the confidential relationship with Dr. Besner when she revealed that she intentionally placed the plastic bag over her son’s head. We have previously explained in reference to the attorney-client and marital privileges that, “it is ‘the relationship that existed at the moment of the communication which society seeks to protect by the privilege, not the substance of the message itself.’ ” Commonwealth v. Ferri, 410 Pa.Super. 67, 73, 599 A.2d 208, 211 (1991), alloc. den., 534 Pa. 652, 627 A.2d 730 (1993), cert. den., — U.S. -, 114 S.Ct. 1189, 127 L.Ed.2d 540 (1993) (quoting Commonwealth v. Clark, 347 Pa.Super. 128, 133, 500 A.2d 440, 443 (1985)).

Although dealing with the privilege protecting confidential communications between spouses, the analysis in Commonwealth v. Clark, supra, is applicable to the facts of this appeal. In Clark, the appellant, who was convicted of second degree murder, argued that his former wife should not have' been permitted to testify on behalf of the Commonwealth on the grounds that her testimony violated the privilege protecting confidential communication between spouses. The wife testified that the appellant confessed to her that he shot and killed a gas station attendant. The trial court held that the wife’s testimony was admissible since the appellant had waived any privilege against disclosure by subsequently relaying the same information to a third party. The issue presented on appeal was “whether [the privilege protecting confidential spousal communications] may be waived by a spouse by subsequently relating the substance of the confidential communication to third parties.” Id. 130, 500 A.2d at 441. We stated:

[W]e must decide whether the nature of the communications changes once the speaker spouse reveals their substance to third parties. Clearly, the substance of the latter communications cannot be considered confidential just because it was once that. Third parties were free to testify against appellant. But, keeping the purpose of the privilege uppermost, we are not convinced that the confidentiality that inhered in the initial conversation can be wiped away when the speaker for whatever reason, talks to the third parties about the same matters.

Id. 132, 500 A.2d at 442. We concluded that the trial court erred in allowing appellant’s former wife to testify and reveal confidential communications with the appellant.

In Commonwealth v. Ferri, supra, 410 Pa.Super. at 67, 599 A.2d 208, this Court adopted the rationale of Clark in reference to the attorney-client privilege. The issue presented was whether the appellant waived his attorney-client privilege by disclosing confidential matters to a third party. We stated:

The attorney-client privilege, likewise, seeks to protect a relationship by fostering “a confidence between client and advocate that will lead to a trusting and open attorney-client dialogue.” Estate of Kofsky, 487 Pa. 473, 482, 409 A.2d 1358, 1362 (1979). The result of a violation of the attorney-client privilege is “damage to the administration of justice.” Id. Analogous to the marital privilege, it is the relationship between the attorney and client at the moment of the communication that society seeks to protect. Thus, the holding in Clark is equally applicable to prevent waiver of the attorney-client privilege.

Ferri, 410 Pa.Super. 72-73, 599 A.2d at 211-12.

Like the appellants in Clark and Ferri, Appellant may prevent Dr. Besner from revealing her confidential communication. Without her prior consent Dr. Besner could not take the stand and reveal what Appellant disclosed to him in confidence. We must preserve the confidential relationship between Appellant and her psychiatrist in order to promote the essential purpose of the statutory privilege — to encourage and foster full disclosure during psychiatric treatment.

The fact that Appellant later revealed to Trooper Anderson the same information she told Dr. Besner does not imply that she waived her statutory right to prevent Dr. Besner from revealing her confidential communications. Therefore, we hold that the trial court erred by allowing Dr. Besner to testify on behalf of the Commonwealth and disclose the confidential information he obtained during the course of Appellant’s psychiatric treatment.

The Commonwealth contends that any error in the admission of Dr. Besner’s testimony was harmless. We agree.

The doctrine of “harmless error” is a technique of appellate review designed to advance judicial economy by obviating the necessity for retrial where the appellate court is convinced that the trial error was harmless beyond a reasonable doubt. Commonwealth v. Wood, 432 Pa.Super. 183, 214-16, 637 A.2d 1335, 1351 (1994). The harmless error rule derives from the notion that although an accused is entitled to a fair trial, he is not entitled to a perfect one. Id. An error in the admission or exclusion of evidence requires reversal unless the Commonwealth establishes that the error was harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 406, 383 A.2d 155, 162 (1978). Our Supreme Court previously explained:

Error is considered to be harmless where: 1) the error did not prejudice the defendant or the prejudice was de minimus; or 2) the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or 3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Commonwealth v. Williams, 524 Pa. 404, 409, 573 A.2d 536, 538-39 (1990) (citing Commonwealth v. Story, 383 A.2d at 164-166).

The Commonwealth argues that Dr. Besner’s testimony was merely cumulative of Trooper Anderson’s “untainted” testimony and thus harmless. It relies on the proposition that, “[a]n error which, viewed by itself, is not minimal, may nonetheless be harmless if properly admitted evidence is substantially similar to the erroneously admitted evidence.” Story, 383 A.2d at 165 (footnote omitted).

The issue we must address is whether Trooper Anderson’s testimony was “untainted” and properly admitted. This case presents unique circumstances in that Appellant confessed to Trooper Anderson that she placed the plastic bag over her son’s head only after she knew that Dr. Besner had breached her confidence. Prior to Dr. Besner’s telephone call to the coroner, the investigation into Matthew Fewell’s death was closed. Trooper Anderson never would have questioned Appellant regarding the death of her son if Dr. Besner hadn’t notified the coroner that Appellant implicated herself in a confidential counselling session in February of 1992. The' violation of Appellant’s confidence by Dr. Besner led the police to reopen the investigation into her son’s death, culminating with her confession to Trooper Anderson. Despite this unique chain of events, we find that Trooper Anderson’s testimony was properly admitted and “untainted.”

Initially we note that Appellant may not exclude her confession to Trooper Anderson on the basis of the exclusionary rule and “fruit of the poisonous tree” doctrine. The Supreme Court of the United States explained this evidentiary rule in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), as follows:

The exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ....” Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure. Weeks v. United States, 232 U.S. 383, 34 SCt 341, 58 LEd 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81 SCt 1684, 6 LEd2d 1081 (1961). This prohibition applies as well to the fruits of the illegally seized evidence. Wong Sun v. United States, 371 U.S. 471, 83 SCt 407, 9 LEd2d 441 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 SCt 182, 64 LEd 319 (1920).

Id. at 347, 94 S.Ct. at 619.

The exclusionary rule was judicially created “to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.... ” Id. Since deterrence of police misconduct is the primary goal of the exclusionary rule, this evidentiary rule does not apply to evidence obtained by private citizens which is subsequently turned over to government authorities. Commonwealth v. Eshelman, 477 Pa. 93, 96-98, 383 A.2d 838, 840 (1978).

In the present case, Appellant does not allege, nor can she allege, that she was subject to any police or government misconduct. The illegal conduct which Appellant alleges — the violation of her psychiatrist-patient privilege — does not constitute an “unreasonable search or seizure” which the courts hope to deter by applying the exclusionary rule. By disclosing Appellant’s confidential communication, Dr. Besner violated a statutory privilege — he was not a state actor conducting an illegal search or seizure. Therefore, the exclusionary rule does not apply to the facts of this case.

Next we must examine whether there are alternative grounds to exclude Appellant’s confession to Trooper Anderson. During direct-examination Trooper Anderson explained the events which transpired on April 13, 1992 when he arrived at Appellant’s home. He explained:

I drove to her house by myself and identified myself and was asked inside, sat down at the kitchen table with [Appellant] and her husband and advised her that I would like to speak to her about her son Matthew and that — about the next thing I did was advise her of her constitutional rights.

N.T., 1/24/94, at p. 41. Trooper Anderson then read Appellant her Miranda rights and asked her to sign a waiver form that acknowledged that Appellant fully understood her rights to remain silent and to the presence of an attorney. Appellant executed the waiver form and began answering Trooper Anderson’s questions. Initially Appellant explained that she could not remember what happened to her son. Later, Appellant stated that “she [confessed to Dr. Besner] to punish herself because she felt guilty about his death and wanted to be punished for it.” N.T., 1/24/94, at p. 44. Trooper Anderson then asked Appellant if she would accompany him to the state police barracks so that they could continue their conversation in private. Appellant agreed and Trooper Anderson drove Appellant to the police barracks. At the police station, Trooper Anderson continued to question Appellant, which eventually led to her confession. Trooper Anderson requested permission to tape record their conversation and Appellant agreed. During the course of the tape-recorded interview, Appellant stated:

[Matthew] wouldn’t calm down, so I took the bag, put it in his bed and he still wouldn’t calm down. And there was a bag layin’ there which I put over his head and left the room. And then, then I didn’t know — it was like I wasn’t there when I did it and I, I didn’t know whether it happened, so I went back and he was apparently dead.

N.T., 1/24/94, at p. 53.

The record reveals that Appellant validly waived her Miranda rights and voluntarily complied with Trooper Anderson’s request to explain the circumstances leading to her son’s death. Appellant then voluntarily confessed to suffocating her son. Her confession to Trooper Anderson was not a result of coercion or duress and was not protected by any statutory privilege. Therefore, we hold that Appellant’s confession to Trooper Anderson was properly introduced at trial. Accordingly, we agree with the Commonwealth that allowing Dr. Besner to testify was harmless error as his testimony was merely cumulative of other “untainted” testimony.

In addition, we find that there is an alternative ground to hold that the admission of Dr. Besner’s testimony was harmless error. Appellant suffered no prejudice from the admission of Dr. Besner’s testimony since she was acquitted of the homicide and reckless endangerment charges and there was sufficient evidence to sustain Appellant’s conviction of child endangerment aside from the testimony of Dr. Besner and Trooper Anderson.

18 Pa.C.S. § 4304 defines the crime of endangering the welfare of a child. It provides:

A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemean- or of the first degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

18 Pa.C.S. § 4304. (emphasis added).

Endangering the welfare of a child is a specific intent offense which was enacted in broad terms to safeguard the welfare and security of children. Commonwealth v. Taylor, 324 Pa.Super. 420, 424-26, 471 A.2d 1228, 1230 (1984). To convict an accused of this statute, the Commonwealth must prove a “knowing violation of a duty of care.” Commonwealth v. Cardwell, 357 Pa.Super. 38, 43, 515 A.2d 311, 313 (1986), alloc. den., 515 Pa. 573, 527 A.2d 535 (1987). “Knowingly” is defined in section 302(b)(2) of the Crimes Code as follows:

(2) A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

18 Pa.C.S. § 302(b)(2).

The Pennsylvania Crimes Code does not specifically define or describe the duty of care referred to in section 4304, however, this Court has frequently addressed that precise issue. “A parent is charged with the duty of care and control, subsistence and education necessary for the child’s physical, mental and emotional health and morals.” Commonwealth v. Barnhart, 345 Pa.Super. 10, 18, 497 A.2d 616, 620-21 (1985), alloc. den., 517 Pa. 620, 538 A.2d 874 (1988), cert. den., 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 34 (1989).

In Commonwealth v. Cardwell, supra, 357 Pa.Super. 38, 515 A.2d 311, this Court elaborated on the intent element needed to sustain a conviction of endangering the welfare of children. We stated:

We hold that evidence is sufficient to prove the intent element of the offense of endangering the welfare of a child, 18 Pa.C.S.A. § 4304, when the accused is aware of his or her duty to protect the child; is aware that the child is in circumstances that threaten the child’s physical or psychological welfare; and has either failed to act or has taken actions so lame or meager that such actions cannot reasonably be expected to be effective to protect the child’s physical or psychological welfare.

Cardwell, 357 Pa.Super. 46, 515 A.2d at 315. If the Commonwealth fails to prove any one of these elements, there is insufficient evidence to sustain a conviction for child endangerment. Commonwealth v. Miller, 411 Pa.Super. 33, 36-38, 600 A.2d 988, 990 (1992).

In another recent decision this Court addressed the degree of culpability required to prove endangering the welfare of children. See Commonwealth v. Miller, supra. In that appeal, the appellant was convicted of endangering the welfare of a child when her infant son died from smoke inhalation and burns after a fire broke out in the apartment where he lay sleeping. The appellant mistakenly left the baby alone in the apartment with a space heater on next to the bed where the baby was sleeping. The appellant believed the child’s father when he told her that the neighbor downstairs agreed to watch their child as they went out to various nightclubs. This Court held that the appellant did not “knowingly” leave her child unattended and therefore, could not be guilty of “knowingly” endangering the welfare of children. We stated:

Utilizing a common sense of the community approach to interpret the specific intent element of the statute, we find an implicit recognition that parents at times can make mistakes in judgment and that their children may be harmed as a result. However, for such mistakes to rise to the level of criminal culpability, parents must knowingly allow their children to be at risk with awareness of the potential consequences of their actions or of their failure to act.

Id. 411 Pa.Super. 41, 600 A.2d at 992.

After reviewing the record, we find that the Commonwealth presented sufficient evidence, independent of Dr. Besner’s and Trooper Anderson’s testimony, which supports Appellant’s conviction of endangering the welfare of a child.

The Commonwealth offered the testimony of Trooper Thomas A. May, who conducted the initial investigation of Matthew Fewell’s death. Trooper May testified as follows on direct examination:

[District Attorney]: Okay. Could you describe for us now what the nature was of the version that [Appellant] described to you?
[Trooper May]: Basically she claimed that she had laid her son Matthew on the crib and was in the process of changing a plastic bag which she used for putting soiled diapers in. She claimed that she placed a clean plastic bag, put it in the crib and became distracted at that point and went back out into the living room. She was then doing Christmas decorations with her daughter and was also running laundry. She claimed that she went back about an hour and a half later and discovered that the infant had become entangled in the plastic bag.

N.T., 1/24/94, at p. 15.

Appellant testified on her own behalf and explained the chronology of events differently than Trooper May. In her direct testimony Appellant claimed that the night before her son died she was replacing the garbage can liners with clean plastic garbage bags. The following exchange transpired during direct examination:

[Appellant’s counsel]: Do you have a specific recollection on the Monday preceeding [sic] Matthew’s death of putting a plastic bag or leaving one in his crib area?
[Appellant]: Yes, I had one left over and I did lay it on top of his blankets.

N.T., 1/25/94, at p. 97.

Although Trooper May and Appellant’s testimony is conflicting as to when Appellant left the plastic bag in the crib, either version would support the jury’s determination that she “knowingly” endangered the welfare of her son. Appellant acknowledged that she knew she left a plastic garbage bag in her infant son’s crib while he was napping and then left her son unattended. Knowing that a plastic bag was within her son’s reach, Appellant placed the infant in circumstances that threatened his physical welfare. Appellant knowingly placed her son at risk of suffocating himself with the plastic garbage bag. Therefore, there is sufficient evidence, independent of Dr. Besner’s and Trooper Anderson’s testimony, to convict Appellant of the child endangerment charge. We therefore reiterate our conclusion that the admission of Dr. Besner’s testimony was harmless error.

Appellant also claims that her confidential communication with Dr. Besner was protected under the Mental Health Procedures Act (MHPA), 50 P.S. § 7101 et seq. Section 7111 of the Act provides in pertinent part:

§ 7111. Confidentiality of records
All documents concerning persons in treatment shall be kept confidential and, without the person’s written consent, may not be released or their contents disclosed to anyone except:
(1) those engaged in providing treatment for the person;
(2) the county administrator, pursuant to section [7110];
(3) a court in the course of legal proceedings authorized by this act; and
(4) pursuant to Federal rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a Federal agency.
In no event, however, shall privileged communications, whether written or oral, be disclosed to anyone without such written consent.

50 P.S. § 7111.

The Mental Health Procedures Act is to be strictly construed. Commonwealth v. Moyer, 407 Pa.Super. 336, 595 A.2d 1177 (1991), alloc. den., 529 Pa. 656, 604 A.2d 248 (1992). “A strict construction of Section 7111 reveals that all documents concerning persons in treatment are to be kept confidential and may not be released or disclosed to anyone, absent the patient’s written consent, with certain exceptions.” Id. 595 A.2d at 1179. These narrow exceptions are specifically delineated in the statute. The third exception, found in section 7111(3) of the statute, allows a court to review the patient’s records in the course of legal proceedings authorized by the MHPA. However, the records “may be used by a court only when the legal proceedings being conducted are within the framework of the MHPA, that is, involuntary and voluntary mental health commitment proceedings.” Id. (emphasis in original).

Appellant was involuntarily committed to St. Vincent’s mental health facility in January of 1992 pursuant to the provisions of the MHPA. Any records that Dr. Besner kept concerning Appellant’s treatment subsequent to this date were confidential and should not have been disclosed absent Appellant’s prior consent. In the present case, Dr. Besner did not rely on Appellant’s confidential records when testifying. He merely relayed what Appellant had confessed to him from his memory. Therefore, Appellant’s claim that Dr. Besner violated her statutory privilege is without merit. Furthermore, as we stated earlier, any error in allowing Dr. Besner to testify was harmless error since his testimony was merely cumulative of Trooper Anderson’s properly admitted evidence.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 4304.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . 18 Pa.C.S. §§ 2501, 2705, 4304, and 4906(b)(1) & (2), respectively.

      . ."Corpus delicti means the body of the crime or the fact that a crime has been committed.” Commonwealth v. Meder, 416 Pa.Super. 273, 277, 611 A.2d 213, 215 (1992), alloc. den. 533 Pa. 643, 622 A.2d 1375 (1993) (quoting Commonwealth v. Brusky, 219 Pa.Super. 54, 56, 280 A.2d 826, 827 (1971)). This evidentiary rule provides that the jury may not consider a defendant’s own admissions or confessions of guilt until the Commonwealth has presented sufficient evidence to convince the jury beyond a reasonable doubt that a crime has occurred. Commonwealth v. Vosburg, 393 Pa.Super. 416, 421-23, 574 A.2d 679, 682 (1990), alloc. den., 529 Pa. 648, 602 A.2d 859 (1991).

      . Appellant’s pre-trial petition for habeas corpus relief was denied on February 12, 1993. Appellant then filed an application for leave to file an interlocutory appeal to this Court, which was denied on June 9, 1993 without prejudice to file a petition for permission to appeal.

      . In a one sentence argument, Appellant asserts that the Commonwealth committed the same error at trial by improperly introducing her admission prior to establishing the corpus delicti of the crimes charged. We will not consider the merits of a claim when it is not properly raised and developed in Appellant’s brief. See Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982).

      . The right of privacy is not specifically guaranteed in the United States or Pennsylvania Constitutions. However, the Supreme Court of the United States has held that zones of privacy are created by the more specific constitutional guarantees found in the Bill of Rights. The Pennsylvania Supreme Court has also held that the protection provided by Article I, Section 8 of the Pennsylvania Constitution extends to "those zones where one has a reasonable expectation of privacy.” Commonwealth v. DeJohn, 486 Pa. 32, 44, 403 A.2d 1283, 1289 (1979), cert. den., 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980).

      . When this case was decided, the doctor-patient privilege was found at 28 P.S. § 328. Currently the doctor-patient privilege is found at 42 Pa.C.S. § 5929.


source: Caselaw Access Project

author: OLSZEWSKI, Judge.

license: Public Domain

text:
    654 A.2d 1120
    COMMONWEALTH of Pennsylvania v. James MOODY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 26, 1994.
    Filed Feb. 13, 1995.

      Steven A. Morley, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, JOHNSON and BROSKY, JJ.
   OLSZEWSKI, Judge.

On July 9, 1985, Frank Jose Brown was shot and killed in his home in West Philadelphia. Shortly thereafter, Oliver Macklin and appellant James Moody were arrested and charged with the crime. At trial, David Sheppard and Manny Grant testified that they were in the house with Brown when they saw the two defendants enter. They further testified that Moody had a gun, and that they heard, but did not see, a scuffle and a shot. Another witness, Hezekiah Simmons, was outside and testified that he heard two shots and then saw two men running from the house. Housing Police Officer Roy Boykins testified that he subsequently saw Moody and another man running away from the area.

Moody and Macklin were jointly tried in April 1986. A jury found both men guilty of second-degree murder and conspiracy. After being sentenced to life imprisonment on the murder charge and five-to-ten years imprisonment on the conspiracy charge, appellant filed a direct appeal to this Court. We affirmed the judgment of sentence, Commonwealth v. Moody, 381 Pa.Super. 658, 548 A.2d 641 (1988) (memorandum decision), and the Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Moody, 521 Pa. 611, 557 A.2d 343 (1989).

On February 1, 1990, appellant filed a Post Conviction Relief Act (PCRA) petition. 42 Pa.C.S.A. § 9541 et seq. The Honorable Joseph I. Papalini denied PCRA relief on October, 5, 1993. This appeal followed.

Appellant’s claim on this PCRA appeal is one of ineffective assistance of counsel. In order to make out such a claim on a PCRA appeal, petitioner must show that “the underlying claim is of arguable merit; that counsel’s action or inaction was not grounded on any reasonable basis designed to effectuate his interest; and that the commission or omission so undermined the trial that the verdict is unreliable.” Commonwealth v. Szuchon, 534 Pa. 483, 486, 633 A.2d 1098, 1099 (1993). Therefore, our initial inquiry is whether appellant’s underlying claim is of arguable merit.

All of appellant’s ineffective assistance of counsel claims revolve around the prosecutor’s closing statement. Appellant has highlighted eight passages that he finds improper and asserts that trial counsel was ineffective for failing to object at trial, and appellate counsel was ineffective for failing to raise the issue on direct appeal.

In determining whether a prosecutor’s statement was proper, we view it not in isolation, but rather in the context in which it was made. Commonwealth v. Carpenter, 533 Pa. 40, 47, 617 A.2d 1263, 1267 (1992). A prosecutor is generally given a reasonable latitude in presenting his or her version of the case to the jury. Commonwealth v. Bullock, 384 Pa.Super. 269, 277, 558 A.2d 535, 539 (1989), appeal denied, 525 Pa. 594, 575 A.2d 561 (1990). Any remarks that are supported by the evidence or legitimate inferences therefrom are proper. Commonwealth v. Hardcastle, 519 Pa. 236, 252-56, 546 A.2d 1101, 1109-10 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990); Commonwealth v. Lark, 518 Pa. 290, 310, 543 A.2d 491, 501 (1988). A statement may also be proper if it fairly rebuts arguments made by the defense during summation, even if it deals with matters of credibility. Commonwealth v. Johnson, 527 Pa. 118, 126, 588 A.2d 1303, 1307 (1991); Commonwealth v. Barren, 501 Pa. 493, 497, 462 A.2d 233, 235 (1983).

The first challenged statement in this case reads: There is myself as well as the Philadelphia Police Department and my civilian witnesses who have been accused of everything. We’ve manipulated you, we’ve tricked you, and we’ve created an aura ... I say to you that all I have done as an attorney ... all I have done is present the witnesses that were available to me and that is all we have done.

N.T. 4/24/86 at 106-107. Appellant argues that this statement improperly vouches for the completeness of the trial record and injects the prosecutor into the case. We disagree. This statement was made after both defense counsels argued at length that the Commonwealth manipulated the "witnesses and tricked the jury. Id. at 54-100. In light of defense counsels’ accusations, this statement was a fair response by the prosecution to charges that it was not playing fairly. See Commonwealth v. Maxwell, 505 Pa. 152, 164-68, 477 A.2d 1309, 1316-17 (1984), cert. denied, 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984) (finding that prosecutor’s statement that the defense was “blowing smoke” was proper in response to personal attacks made by defense counsel during closing remarks).

Appellant next challenges the following statement: “I put on Officer Wilkens so that you would have all of the evidence that was available to the police.” Conveniently, however, appellant fails to quote this statément in context. During closing arguments, defense counsel accused the prosecutor of putting on Officer Wilkens’ testimony to evoke sympathy for the victim. N.T. 4/24/86 at 56. In rebutting this accusation, the prosecutor repeated the allegation and then said, “I submit to you that is not worthy of belief. That is not why I put that on. I put Officer Wilkens on so that you would have all of the evidence that was available to me that was available to the police.” Id. at 110-111 (emphasis added). Thus, when viewed in context, it is clear that the prosecutor was merely responding to defense counsel’s attack regarding his motivation for putting on the witness. As with the first statement, we find that this statement was a fair response to defense counsel’s closing arguments. Maxwell, 505 Pa. at 164-68, 477 A.2d at 1316-17.

The next challenged statement reads, “I don’t think that is humanly possible. I don’t think anyone can manipulate Manny Grant.” Appellant asserts that this is improper vouching. As with the statement above, however, appellant does not place the quote in context. During closing statements, defense counsel repeatedly and severely attacked the credibility of Commonwealth witness Manny Grant. N.T. 4/24/86 at 59-75. In referring to Grant, counsel said:

[H]e is pathetic, but in a way that’s very different from the way in which the district attorney would like you to believe he is. The degree to which that witness has been manipulated is pathetic____ Why would anyone he to that extent? You know, the lies are almost obscene. Could there be a reason why this man would he so much, so frequently, so often? You know it’s possible that Manny Grant is a poor man’s cut rate, low level snitch____ Just point Manny in the right direction, the direction you want Manny to go in, and that’s the direction Manny will go in.

Id. at 70-71. In response to this attack, the prosecutor stated, “I have been accused of manipulating Manny Grant. You hstened to Manny Grant. I don’t think that is humanly possible. I don’t think anyone can manipulate Manny Grant.” Id. at 110-111 (emphasis added). The prosecutor is not vouching for the credibility of Grant, he is simply defending against the assertion that the Commonwealth manipulated Grant in order to get the testimony that it wanted. In this context, this prosecution statement is a fair response to the defense. See Barren, 501 Pa. at 498-99, 462 A.2d at 235 (finding that a prosecutor’s statement that the victim testified to “bring to you the truth” was a fair response to defense assertions that the victim testified from “rote memorization” brought about by extensive preparation).

Appellant’s next claim stems from the following statement, “He [David Sheppard] gave us a statement. He told us that he was in the house with Manny.” N.T. 4/24/86 at 115. On April 22, 1986, David Sheppard testified that he did in fact give the police a statement and that he told police that he was in the house with Manny Grant. N.T. 4/22/86 at 155-160. Therefore, this statement is supported by the evidence and is totally proper. Hardcastle, 519 Pa. at 252-56, 546 A.2d at 1109-10; Lark, 518 Pa. at 310, 543 A.2d at 501.

Appellant also offers the following statement as improper, “Gus Richardson is a pretty good judge of character.” N.T. 4/24/86 at 116-117. When quoted out of context, this statement might appear to improperly vouch for the credibility of a Commonwealth witness. Once again, however, the context shows otherwise. The prosecutor, referring to Richardson, stated:

He said he talked to Manny the first night and didn’t want to press him. “Look at these photos. Recognize anybody? No.” Let’s him go. He’s emotional. He is going to let him relax. He’ll come back to me. He was right. Manny came back to him. Gus didn’t go looking for Manny. Manny came back on his own. Gus Richardson is a pretty good judge of character. Manny comes back. Out of the entire world of photographs who does Manny Grant pick out? He picks out those two men, the same men that David Sheppard picks out.

Id. (emphasis added). This statement is discussing Grant’s voluntary identification of the defendants. The mention of Richardson being a good judge of character is only referring to Richardson’s prediction that Grant would come back to him with information. Since the record supports the fact that Grant did come back as Richardson predicted, the assertion that Richardson is good at predicting when someone will return is a reasonable inference from record evidence. Therefore, this statement, viewed in context, is not improper. Hardcastle, 519 Pa. at 252-56, 546 A.2d at 1109-10; Lark, 518 Pa. at 310, 543 A.2d at 501.

The sixth statement that appellant challenges reads, “That the guy [Simmons] I brought down that I told you I would go see the judge about if he testified in the homicide trial, that I got his bail reduced so he could get out because he was afraid.” N.T. 4/24/86 at 119. Appellant asserts that the prosecutor was improperly vouching for the credibility of Simmons. This argument fails because the entire statement is supported by evidence of record. When Simmons testified, he was questioned about his deal with the Commonwealth and he specifically commented on the prosecutor’s actions in getting him out of jail. N.T. 4/23/86 at 106-108. Simmons also specifically stated that he wanted to get out of jail because he was afraid of being hurt. Id. Therefore, this was merely a comment on record evidence and was totally proper. Hardcastle, 519 Pa. at 252-56, 546 A.2d at 1109-10; Lark, 518 Pa. at 310, 543 A.2d at 501.

Appellant also challenges the following statement: “I wouldn’t ask you to convict either of these men based on the testimony alone of any one of these witnesses.” N.T. 4/24/86 at 124. Appellant asserts that this was a statement of the prosecutor’s belief that the evidence in this case was sufficient to convict the defendants. As he has done before, appellant takes this quote out of context. The entire passage reads:

I submit to you that everyone of these witnesses is a piece and they you will support one another in little ways. I wouldn’t ask you to convict either of these men based on the testimony alone of any one of these witnesses. You have to consider everything in total and that when you do consider everything in total you will have a very clear picture of what happened that night.

Id. (emphasis added). A prosecutor is as entitled as a defense attorney to argue his version of the case based on the record evidence. E.g., Bullock, 384 Pa.Super. at 277, 558 A.2d at 539. This passage, premised by the phrase “I submit,” was such an argument. The prosecutor was merely exhorting the jury to consider all of the record evidence before reaching a verdict and asserting that the evidence would support a verdict in favor of the Commonwealth. Such a statement is proper. Commonwealth v. Williams, 532 Pa. 265, 276, 615 A.2d 716, 722 (1992) (holding that a prosecutor’s statement that “there is no doubt I think from this evidence that indeed his intention was to shoot at or kill Erica,” was proper because he related his suggested conclusion back to the evidence).

Lastly, appellant challenges the following statement: You people that are from neighborhoods like 43rd and Fairmount, you all bring a little something different to this jury box. Use those tools when you go out. You people that have street smarts, that have some from independent neighborhoods, you people that know what courage it takes to come forward, not just come to the police and say ‘yeah, I know who did it’ but the courage to sit up there on the witness stand and testify under oath against people in a homicide trial and then have to go back out to that neighborhood to continue to live your life. When you think on that jury box, you people understand that fear, explain it, to all the others here, because that’s the element that’s operating with both of them, with Manny Grant and with David Sheppard.

N.T. 4/24/86 at 117-118. Appellant claims that this statement improperly invited the jury to base their decision on fear and prejudice rather than the evidence. In this case, defense counsel vigorously challenged the credibility of key Commonwealth witnesses who had initially refused to speak to the police. Thus, we believe that this passage, which attempted to explain the initial hesitancy by referring to the element of fear, was a fair response to the defense’s attack on credibility. See Commonwealth v. Woods, 275 Pa.Super. 392, 405, 418 A.2d 1346, 1353 (1980) (en banc), appeal dismissed, 498 Pa. 140, 445 A.2d 106 (1982) (stating that it was not error to tell jurors that they could utilize their life experiences in determining the credibility of a witness).

Even assuming that this statement was an improper appeal to the prejudices or fears of the jury, and that defense counsel had no reasonable justification for faffing to object, appellant would still fail to make out a claim of ineffective assistance of counsel. On a PCRA appeal, appellant must show that counsel’s inaction so undermined the trial that the verdict is unreliable. E.g., Szuchon, 534 Pa. at 486, 633 A.2d at 1099. We do not believe that this error would prejudice a jury to that extent.

In Commonwealth v. Toledo, this Court addressed a similar statement made in a prosecutor’s closing argument. 365 Pa.Super. 224, 235, 529 A.2d 480, 486 (1987), appeal denied, 517 Pa. 622, 538 A.2d 876 (1988). The prosecutor asserted that the jury should be conscious of the amount of crime in the community, applaud the eyewitness for coming forward, and return a guilty verdict to take back the streets. Id. We found that this was not a reversible error in light of defense credibility attacks, the- prosecutor’s statement as a whole, and the weight of the Commonwealth’s evidence. Id. Thus, even if this appeal to fear was error, it was insufficient to “so permeate the trial with bias and hostility toward the appellant that the jurors could not render a true verdict according to the evidence.” Id.

Similarly, even if the statement in this case improperly appealed to the fears and prejudices of the jury, it did not so undermine the trial as to call into question the reliability of the verdict. The statement was clearly a response to the defense attacks on the credibility of the Commonwealth’s witnesses. Moreover, this was only one portion of a lengthy closing statement in which the prosecutor properly argued his case based on the record evidence. Additionally, in light of the Commonwealth’s weighty evidence, it is unreasonable to assume that this statement was the basis for the verdict.

In sum, appellant has failed to make out a valid PCRA claim of ineffective assistance of counsel. Regarding the first seven alleged improper statements, we find them to be proper. Thus, counsel cannot be ineffective for failing to object. Johnson, 527 Pa. at 126, 588 A.2d at 1307. As to the eighth statement, even if it was improper, it did not undermine the reliability of the verdict. Toledo, 365 Pa.Super. at 235, 529 A.2d at 486.

Affirmed.

JOHNSON, J., concurs in the result.


author: ROWLEY, President Judge: CIRILLO, Judge:

text:
    654 A.2d 1125
    Kathleen M. BYRNES v. Harry D. CALDWELL, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1994.
    Filed Feb. 9, 1995.
    Petition for Allowance of Appeal Granted May 18, 1995.

      Francis Recehuiti, Norristown, for appellant.
    Peter E. Moore, Spring House, for appellee.
    Albert Momjian, Huntingdon, amicus curiae.

      Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, CIRILLO, DEL SOLE, POPOVICH, JOHNSON, HUDOCK and SAYLOR, JJ.
   ROWLEY, President Judge:

In Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), decided on November 13, 1992, our Supreme Court held that a divorced parent, like any other parent, owes a duty of support to his or her child until the later of the child’s eighteenth birthday or graduation from high school, but not beyond. Pivotal to the Court’s decision was the fact that no parental duty to contribute to a child’s post-secondary education had been imposed by the General Assembly despite that body’s active involvement in domestic matters via the Divorce Code and Domestic Relations Act.

The following year the General Assembly enacted 23 Pa. C.S. § 4327 (“Act 62”) with the stated intention of codifying the decisions of this Court, in Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963), and subsequent cases, establishing the obligation of parents who are separated, divorced, unmarried, or otherwise subject to an existing support obligation to contribute, as and where appropriate, to a child’s post-secondary education. By its terms Act 62 applies not only to support actions pending at the time of its enactment, but also to support orders in effect on or entered since November 12,1992, the day before the Supreme Court handed down its decision in Blue.

The obligation of appellant Harry D. Caldwell (“Father”) to contribute to the support of his college-age daughter, Elizabeth Caldwell, was terminated after the Supreme Court’s decision in Blue and restored after the legislature’s enactment of Act 62. Father’s timely appeal from the trial court’s order of February 15, 1994, restoring his support obligation hás been certified to this Court en banc for resolution of two constitutional issues raised therein:

1) Does Act 62 violate the equal protection clauses of the United States and Pennsylvania constitutions?

2) Does retroactive application of Act 62 constitute a constitutionally impermissible ex post facto law?

In addition to these constitutional claims, Father asserts the statutory defenses of undue hardship and estrangement. Concluding, after careful consideration, that none of Father’s claims entitles him to relief, we affirm the order of the trial court.

Elizabeth Caldwell was born to Father and appellee Kathleen M. Byrnes (“Mother”) on August 18, 1974. The parties separated in 1985 and were divorced in 1989. Elizabeth has lived with Mother since the parties’ separation. On April 23, 1992, Mother filed a petition requesting that Father be ordered to pay college tuition for Elizabeth. Pursuant to Pa. R.C.P. 1910.3(4), Elizabeth provided her written consent to the petition. On July 2, 1992, Father responded with a petition requesting that the trial court vacate an existing order of support as of Elizabeth’s upcoming eighteenth birthday, August 18, 1992.

Elizabeth began her studies at Gwynedd Mercy College in the fall of 1992. On November 13, 1992, the Supreme Court decided Blue. Shortly thereafter, the trial court granted Father’s petition and discharged his support obligation. Within a week of the legislature’s enactment of Act 62, Mother petitioned the trial court to open or reinstate its order of support.

On February 15, 1994, following a master’s hearing and a subsequent de novo hearing before the trial court, the trial court entered an order directing Father to pay the following:

1) 55% of the cost of Elizabeth’s tuition, fees, books, and other educational materials, after deduction of scholarships, Father to pay this amount within thirty days after the bills for these expenses are submitted to him;

2) support in the amount of $75.00 per week while Elizabeth resides with Mother and commutes to college;

3) $50.00 per week on arrearages (i.e., Father’s portion of Elizabeth’s past college expenses); and

4) 55% of Elizabeth’s unreimbursed medical and dental expenses.

This timely appeal followed. We note that notice of the appeal has been given to the Attorney General of the Commonwealth, as is required where the constitutionality of a statute is challenged.

I. Non-constitutional Claims

It is a well-settled principle that we will not decide a constitutional question unless absolutely required to do so. Jenkins v. Hospital of the Medical College of Pennsylvania, 401 Pa.Super. 604, 615, 585 A.2d 1091, 1096 (1991) (en banc), aff'd, 535 Pa. 252, 634 A.2d 1099 (1993). Accordingly, we turn to the fact-based defenses asserted by Father. If either of those claims affords him relief, we will not be required to consider his constitutional challenges to the statute. The burden is on the person asserting undue hardship, 23 Pa.C.S. § 4327(f)(1), or estrangement, 23 Pa.C.S. § 4327(e)(5), to prove his or her assertion by the fair weight and preponderance of the credible evidence. In considering such a claim, we will not disturb the determination of the trial court (i.e., the factfinder) absent an abuse of discretion. McGettigan v. McGettigan, 433 Pa.Super. 102, 106-07, 639 A.2d 1231, 1233 (1994) (citing Blue). An abuse of discretion is not merely an error of judgment; rather, it is the overriding or misapplication of the law, a manifestly unreasonable judgment, or a judgment resulting from partiality, prejudice, bias, or ill will. Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, 103 (1982), quoting Garrett’s Estate, 335 Pa. 287, 293, 6 A.2d 858, 860 (1939).

A. Undue Hardship

We consider, first, Father’s assertion of undue hardship. Act 62 provides in pertinent part that “[a] court shall not order support for educational costs if ... [u]ndue financial hardship would result to the parent.” 23 Pa.C.S. § 4327(f)(1). The trial court found that its order would not result in undue hardship to Father.

Father has failed to persuade us that the trial court has abused its discretion in this regard. The trial court found that Elizabeth’s college tuition and incidental expenses totaled approximately $11,400.00 per year and that she had obtained $4,000.00 in scholarships, leaving an amount due of $7,400.00. In addition, the trial court found that Father’s net monthly income is $8,634.00. Father does not challenge these figures, but merely asserts that he will suffer undue hardship if required to pay $216.65 per month on arrears and $324.98 per month in support, as well as the lump sum of $4,070.00 per year.

Father provides us with no information concerning, inter aha, his assets, expenses, or ability to borrow. Having been given no explanation as to why the obligations set forth in the trial court’s order will cause him to suffer undue hardship, we conclude that the trial court did not abuse its discretion in this regard.

B. Estrangement

We reach the same conclusion with regard to Father’s asserted defense of estrangement. As the trial court notes, one factor to be considered in deciding whether to require a parent to contribute to a child’s post-secondary educational costs is “[a]ny willful estrangement between parent and student caused by the: student after attaining majority.” 23 Pa.C.S. § 4327(e)(5) (emphasis added). Our Court has held that

[estrangement between a parent and child will only relieve or lessen a parent’s duty to pay support towards a child’s college education when that parent has made a concerted and good faith effort to establish and develop a relationship with his or her child, and the child has unquestionably and willfully rejected the parent’s outstretched hand.

Fager v. Fatta, 395 Pa.Super. 152, 156, 576 A.2d 1089, 1091 (1990) (quoting Bedford v. Bedford, 386 Pa.Super. 349, 358, 563 A.2d 102, 106 (1989)). In light of the legislature’s stated intention to codify pre-Blue case law with the enactment of Act 62, we conclude that this Court’s rulings on estrangement apply to cases, such as the one before us, arising under that statute.

In the present case, the trial court found that Father “has made absolutely no effort to maintain any contact or relationship with Elizabeth since she was approximately 12 or 13 years old.” Trial Court Opinion at 3. Father’s testimony at the trial de novo supports this finding. Father asserts that Mother has prevented him from contacting Elizabeth and that since Elizabeth turned eighteen she has not contacted him. Even if Father’s assertions are true, they do not indicate that Elizabeth, since reaching the age of eighteen, has willfully estranged herself from Father. We conclude, therefore, that Father has failed to prove an abuse of discretion concerning the issue of estrangement.

II. Constitutional Claims

As neither of these defenses entitles Father to relief, we consider his constitutional challenges to Act 62. In doing so, we are mindful that

[a party challenging the constitutionality of a statute] carries a heavy burden of persuasion. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 175, 507 A.2d 323, 331 (1986). A legislative enactment enjoys a strong presumption in favor of constitutionality and will not be invalidated unless it clearly, palpably, and plainly violates the Constitution. Id.; Parker v. Children’s Hospital of Pennsylvania, 483 Pa. 106, 116, 394 A.2d 932, 937 (1978). In determining the legislature’s intent in writing the statute at issue, we .presume that the legislature did not intend to violate the state or federal Constitution. 1 Pa.C.S. § 1922(3); Krenzelak v. Krenzelak, [503 Pa. 373, 381, 469 A.2d 987, 991 (1983) ]. All doubts must be resolved in favor of a finding of constitutionality. Consumer Party v. Commonwealth, 510 Pa. at 175, 507 A.2d at 332; Parker v. Children’s Hospital, 483 Pa. at 116, 394 A.2d at 937.

Jenkins v. Hospital, 401 Pa.Super. at 616, 585 A.2d at 1096-97 (additional citation omitted).

A. Retroactivity

Appellant’s first constitutional claim is that insofar as Act 62 is retroactive to November 12, 1992, the day before the Supreme Court’s decision in Blue, it is an ex post facto law and therefore violative of both the United States and Pennsylvania constitutions. Appellant cites no case law to support this claim. If we interpret appellant’s claim narrowly, there is in fact no case law to be cited in its support, for

the term “ex post facto” as used in the Constitutions of the United States and Pennsylvania applies only to penal statutes and “may be defined as [a law] which imposes a punishment for an act which was not punishable when it was committed, imposes additional punishment or changes the rules of evidence by which less or different testimony is sufficient to convict....”

Wood v. City of Pittsburgh, 74 Pa.Commw. 450, 460 A.2d 390, 392 (1983), quoting Kastner v. Com., Department of Transportation, 46 Pa.Commw. 97, 99, 405 A.2d 1133, 1134 (1979), quoting Myers v. Lohr, 72 Pa.Super. 472, 474 (1919) (emphasis in original). Accord Commonwealth ex rel. Wall v. Smith, 345 Pa. 512, 29 A.2d 912 (1942) (ex post facto law is one which makes a crime of an act which was not a crime when committed, or which increases punishment for an act already committed). Because Act 62 is civil, not penal, it cannot be an ex post facto law.

If we interpret Father’s claim more broadly, as simply a constitutional challenge to the retroactivity provision of Act 62, we reach the same result. “Neither the federal constitution nor our state constitution invalidates a non-penal statute merely because it is retroactive, unless such legislation impairs contractual or other vested rights.” Barasch v. Pennsylvania Public Utility Commission, 516 Pa. 142, 167, 532 A.2d 325, 337 (1987), aff'd, 488 U.S. 299, 109 S.Ct. 609, 102 L.Ed.2d 646 (1989), cited in Jenkins v. Hospital, supra, 401 Pa.Super. 604, 585 A.2d 1091. Father identifies no vested right that is impaired by the retroactive application of Act 62. We adopt as our own the trial court’s analysis and resolution of this issue:

In Hecker v. O’Connell, [427 Pa.Super. 608,] 629 A.2d 1036 (1993)[,] our Superior Court held that. Act 62 “codified the substantive law appearing in Ulmer v. Sommerville, [supra, 200 Pa.Super. 640, 190 A.2d 182] and subsequent Superior Court decisions. See Preamble to Act 62. The Legislature also provided that Act 62 should be applied retroactively to November 12, 1992, one day prior to our Supreme Court’s decision in Blue” [supra, 532 Pa. 521, 616 A.2d 628]. The intent of Act 62 was to reinstate and codify the Pennsylvania decisional law of almost thirty (30) years standing regarding college support. As the Superior Court held, “It is clear that the Legislature intended the statute to take effect retroactively to prevent the invalidation of college support orders entered prior to the decision in Blue,” Heckler [sic], supra, [427 Pa.Super. at 611] 629 A.2d ... at 1037. Clearly, [Father’s] potential liability for Elizabeth’s college education was the law of the Commonwealth at the time she was born and it remained so until the Supreme Court’s decision in Blue on November 13, 1992. [Father’s] retroactivity argument thus must fail.

Trial Court Opinion, 2/15/94, at 5-6.

B. Equal Protection

Finally, Father argues that Act 62 violates the equal protection clauses of the United States and Pennsylvania constitutions by imposing upon parents who are divorced, separated, unmarried, or subject to an existing support obligation, but not upon parents who remain married, the duty to contribute to a child’s post-secondary education. For the following reasons, we conclude that this claim is without merit.

The federal Constitution provides in pertinent part that [n]o State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const, amend. XIV, § 1. The analogous provisions in our state Constitution are the following:

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. .

Pa. Const, art. I, § 1.

The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law____

Pa. Const, art. Ill, § 32. “In the equal protection area ... we have chosen to be guided by the standards and analysis employed by the Supreme Court and have adopted those standards and analysis” in interpreting these provisions of our Constitution. Dansby v. Thomas Jefferson University Hospital, 424 Pa.Super. 549, 556, 623 A.2d 816, 820 (1993), quoting Commonwealth v. Parker White Metal Co., 512 Pa. 74, 83, 515 A.2d 1358, 1362 (1986).

It is the case, as Father contends, that with regard to the support of college-age- students the legislature has chosen to treat parents who are separated, divorced, unmarried, or otherwise subject to an existing support obligation differently from parents who remain married in an intact family situation:

However, principles of equal protection do not absolutely prohibit a state from classifying persons differently and treating the classes in different ways. James v. Southeastern Pennsylvania Transportation Authority, [505 Pa. 137, 144, 477 A.2d 1302, 1305 (1984) ]. Equal protection requires that uniform treatment be given similarly situated parties. If distinctions are drawn, then the challenged policy must be reasonably justified. The level of justification required will depend upon the type of classification drawn and the governmental interest in promulgating the classification, and the relationship between that interest and the classification itself. Smith v. City of Philadelphia, 512 Pa. 129, 137-138, 516 A.2d 306, 310-311 (1986).

Dansby v. Thomas Jefferson, 424 Pa.Super. at 557, 623 A.2d at 820.

In considering an equal protection challenge, our standard of review depends upon the type of classification at issue. A classification involving a suspect class or a fundamental right will be subject to strict scrutiny, the most stringent standard of review. A classification involving a sensitive classification or an important but not fundamental right will be subject to intermediate or heightened scrutiny. Finally, if none of these rights or classes are involved, the classification is subject to the least stringent standard of review and will be upheld if there is any rational basis for it. Id. at 557, 424 Pa.Super. at 820-21, quoting Smith v. Philadelphia, 512 Pa. at 138, 516 A.2d at 311; see also James v. SEPTA, supra, 505 Pa. 137, 477 A.2d 1302.

Although the type of classification at issue is crucial to our analysis, Father’s argument on this point is minimal. He maintains that

his status as a divorced father would allow him to come within the “suspect class” type of cases, therefore, requiring this Court to conduct a review based on strict scrutiny. In the alternative, [he] believes that an “important” interest has been affected and that a sensitive, if not suspect, classification has been made, thereby entitling him to have this matter reviewed under a “heightened standard of review.”

Brief for Appellant at 8. Father cites no case law to support this argument, nor does he identify the “important” interest involved or explain why divorced fathers constitute a suspect or sensitive class. Bearing in mind the presumption of constitutionality to be accorded Act 62, we decline to apply to the Act a strict or heightened level of scrutiny where no persuasive reason has been given us for doing so.

Accordingly, we consider whether Act 62 passes the rational basis test. In other words, is Act 62 “rationally related to a legitimate state purpose”? In re Estate of Long, 410 Pa.Super. 607, 611, 600 A.2d 619, 620 (1992), citing Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); In re Estate of Cavill, 459 Pa. 411, 329 A.2d 503 (1974). The United States Supreme Court has observed that

equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must -be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.... This standard of review is a paradigm of judicial restraint.

F.C.C. v. Beach Communications, Inc., — U.S. -, -, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993) (citations omitted; emphasis added).

Included in Act 62 is the following statement of purpose:

[T]he General Assembly finds that it has a rational and legitimate governmental interest in requiring some parental financial assistance for a higher education for children of parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation.

In the legislative debate on Act 62, Representative Ryan offered an explanation as to why a statute was necessary to further that interest:

I read an article in the paper not too long ago____ There were 80 petitions filed in Montgomery County in the first 2 months, to my recollection, the first 2 months after the Blue case came down in November, and these were cases where, for the most part, fathers were filing petitions so they would not have to pay the tuitions of their children to go to college the following semester, and that is just wrong. It is the wrong thing to do.
We have tuitions coming due this summer, we have children making plans to go back to school this fall, and I think it is wrong for us not to address the issue now. I think it is wrong for us not to go back to the law the way it was for the 30, 40 years that preceded the Blue case....

Legislative Journal, House, June 24, 1993, p. 1689.

The trial court, citing the persuasive reasoning of the Supreme Court of New Hampshire in LeClair v. LeClair, 137 N.H. 213, 624 A.2d 1350 (1993), analyzed the matter as follows:

I agree with the LeClair court that college educátion for capable students is a worthy social goal. I also conclude that the Legislature could rationally conclude that children of divorced, separated or unmarried parents are generally, but not inevitably, in greater need for protection in their pursuit of college education than are children of intact marriages. Economic retaliation, bitterness, even hatred, must be acknowledged as frequently at work in such situations. Intact families on the other hand most often, but not inevitably, will struggle and sacrifice to provide their children with higher education____ Act 62 also reflects the historic tradition in our law that courts will not interfere with the economic decisions of intact families. See Commonwealth v. George, 358 Pa. 118, 56 A.2d 228 (1948)[;] Shilling v. Shilling, 394 Pa.Super. 154, 575 A.2d 145 (1990). Divorce, separation or unmarried status, however, frequently results in the intervention of the courts with regard to economic issues, i.e., support, equitable distribution of marital property, et cetera, for the purpose of mitigating harm to the parties and serving the best interest and welfare of children. Given these realities and this long standing tradition of our law, it cannot be said that there is no rational basis for the Legislature’s determination, as reflected in Act 62, to regard children of divorced, separated or unmarried parents as worthy of special protection as against the “fall out” of divorce or separation.

Trial Court Opinion, 2/15/94, at 4-5.

Mindful of the United States Supreme Court’s instruction that our review of such a statute shall be a model of judicial restraint, we conclude that both the pertinent legislative history and the trial court’s analysis, quoted above, suggest a “reasonably conceivable state of facts” which can serve as a rational basis for treating intact and non-intact families differently with regard to the support of adult children seeking post-secondary education. In reaching this conclusion, we do not disagree with Father’s assertion that many divorced or separated parents put aside their personal animosities for the sake of their children, nor do we dispute Father’s claim that Act 62 does not instruct the trial court to duplicate as nearly as possible the decision that would have been made regarding the child’s post-secondary education if the family had remained intact. Nevertheless, a classification may be rational even though it “is not made with mathematical nicety or because in practice it results in some inequality.” Martin v. Com., Unemployment Compensation Board of Review, 502 Pa. 282, 291, 466 A.2d 107, 111 (1983), cert. denied, 466 U.S. 952, 104 S.Ct. 2156, 80 L.Ed.2d 541 (1984), quoting Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at 1161. Accordingly, we conclude that Act 62 “bears some rational relationship to a legitimate state end,” id., and therefore does not violate the state and federal guarantees of equal protection.

Order affirmed.

CIRILLO, J., files a dissenting opinion, which is joined by CAVANAUGH, J.

CIRILLO, Judge:

I respectfully dissent. Unlike the majority, I conclude that Act 62, which imposes a duty of postsecondary educational support upon divorced parents, is unconstitutional on equal protection grounds. I, therefore, would reverse the trial court’s order directing Father to contribute to Elizabeth’s postsecondary education.

The equal protection clause is a pledge of the protection of equal laws, and its requirement is satisfied if the laws operate on all alike and do not subject the individual to an arbitrary exercise of the powers of government. U.S. Const, amend. XIV; Pa. Const, art. I, §§ 1 and 26, art. Ill, § 32; Application of Christy, 362 Pa. 347, 67 A.2d 85, cert. denied, Christy v. Conver, 338 U.S. 869, 70 S.Ct. 145, 94 L.Ed. 533 (1949). The concept of equal protection requires that uniform treatment be given to similarly situated individuals. Smith v. City of Philadelphia, 512 Pa. 129, 136-37, 516 A.2d 306, 310 (1986). If distinctions are drawn, the challenged policy must be reasonably justified. The level of justification depends upon the type of classification drawn and the governmental interest in promulgating the classification, and the relationship between that interest and the classification itself. Id. at 137-38, 516 A.2d at 310-11.

The types of classifications are: (1) classifications which implicate a “suspect” class or a fundamental right; (2) classifications implicating an “important” though not fundamental right or a “sensitive” classification; and (3) classifications which involve none of these. Id. Should the statutory classification in question fall into the first category, the statute is strictly construed in light of a “compelling” governmental purpose; if the classification falls into the second category, a heightened standard of scrutiny is applied to an “important” governmental purpose; and if the statutory scheme falls into the third category, the statute is upheld if there is any rational basis for the classification.

Id. at 138, 516 A.2d at 311.

Here, the group affected, divorced parents, is not a “suspect” or “sensitive” class. The right infringed, an economic right, is not deemed “fundamental” or “important.” As the majority has done in its evaluation of this issue, I, therefore, utilize the lowest level of scrutiny — the rational basis test. The statute must be sustained if it bears a rational relationship to a legitimate state interest. Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975); Dansby v. Thomas Jefferson University Hospital, 424 Pa.Super. 549, 553-54, 623 A.2d 816, 819 (1993).

Although this court is free to interpret our Constitution in a more generous manner than the federal Constitution, Fischer v. Department of Public Welfare, 509 Pa. 293, 305, 502 A.2d 114, 211 (1985), “[i]n the equal protection area ... we have chosen to be guided by the standards and analysis employed by the [United States] Supreme Court and have adopted those standards and analysis ... [in interpreting our Constitution].” Dansby, 424 Pa.Super. at 556, 623 A.2d at 820 (quoting Commonwealth v. Parker White Metal Co., 512 Pa. 74, 83, 515 A.2d 1358, 1362 (1986)).

As early as 1765, Blackstone aptly summarized the rationale underlying the parental duty of support:

The duty of parents to provide for the maintenance of their children, is a principle of natural law.... By begetting them, therefore, they have entered into a voluntary obligation, to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents.

1 W. Blackstone, Commentaries on the Law of England 447-448 (1765). “Maintenance in 1765, however, did not extend far beyond food, clothing and shelter.” Spitzer v. Tucker, 404 Pa.Super. 539, 545, 591 A.2d 723, 726 (1991) (Cirillo, P.J., dissenting). In 1992, the Pennsylvania Supreme Court determined that the duty of support extended to a “basic education,” defined as a high school education, or until a minor reaches the age of eighteen, whichever occurs later. Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992). The Court stated:

In recent history, the Superior Court has adopted and applied the [Commonwealth v.] Gilmore, [97 Pa.Super. 303 (1929) ] analysis to college educational support of a child. In essence, the Superior Court has transferred this “principle of necessity” of a basic fundamental education to a requirement that each child be entitled to an “enhanced” education. We do not agree with this transformation.

Id. at 529, 616 A.2d at 632.

Act 62, which in effect negated the Supreme Court’s decision in Blue, and is applicable only to divorced parents, imposes upon that class of parents an obligation to provide financially for an adult child’s college or postsecondary education. Nondivorced parents have no coextensive legal obligation to provide support for their child’s postsecondary education.

The child of nondivorced parents may find a way to finance the postsecondary education of his or her choice, or may not. Nondivorced parents will, as is most often the case, do whatever is necessary, even at a sacrifice, to provide their child with the best that they can offer, or they may not. This is not for us to question, and so far as this court or the lawmakers have ventured into this personal, financial family matter, we have intruded. Milne v. Milne, 383 Pa.Super. 177, 186-87, 556 A.2d 854, 859-60, appeal denied, 524 Pa. 598, 568 A.2d 598 (1989). Just as parents in an intact family enjoy the freedom of making the personal decision of whether and to what extent to provide postsecondary educational support for their child, free from interference or mandates by the courts or laws of the Commonwealth, so too should divorced parents be free to manage this matter on their own. Regardless of the bitterness or hatred between ex-husband and ex-wife, it is the husband/wife relationship that has been severed, not the parent/child relationship. As such, neither this court nor the legislature has been called upon to delve into this matter. See generally, Horan, Postminority Support for College Education — A Legally Enforceable Obligation in Divorce Proceedings? 20 Fam.L.Q. 589 (1987) (indicating that the underlying sentiment in decisions refusing to impose a duty of postminority support is that a system of voluntary support to adult children is more likely to foster a close relationship between parents and children).

If we momentarily humble ourselves, we may clear our vision sufficiently to acknowledge that interference in these matters may have fostered bitterness, providing legal weapons for mother and father, and encouraging the depletion of the family’s financial resources. See Milne, 383 Pa.Super. at 188, 556 A.2d at 860 (“to the extent that the courts of this Commonwealth impose obligations on divorced parents without expecting commensurate responsibilities and respect from adult children, we add to the family’s problems rather than alleviate them.”). Our Supreme Court recognized this in its decision to eradicate over thirty years of decisional law. See Blue, supra; see also Monsky v. Sacks, 403 Pa.Super. 40, 588 A.2d 19 (1991); Napier v. Hutchinson, 397 Pa.Super. 162, 579 A.2d 981 (1990); Pharoah v. Lapes, 391 Pa.Super. 585, 571 A.2d 1070 (1990); Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989); Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989); Milne, supra; Chesonis v. Chesonis, 372 Pa.Super. 113, 538 A.2d 1376 (1988); Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986); Commonwealth ex rel. Williams v. Williams, 242 Pa.Super. 550, 364 A.2d 410 (1976); Doelp v. Doelp, 219 Pa.Super. 420, 281 A.2d 721 (1971); Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963).

Furthermore, Act 62 magnifies the distinction of the divorced family by ignoring the realities of an intact family. It simply is not always the case that nondivorced parents agree on expenditures for postsecondary education for their children, nor is it always the case that nondivorced parents and the child agree on the matter. Nondivorced parents will settle this matter without legislative interference; divorced parents, on the other hand, will be ordered to provide as the legislature and the courts see fit. Nondivorced parents have the option to withhold support; divorced parents do not.

It is this author’s opinion, after many years of experience as a parent, a lawyer, a trial court judge, and an appellate court judge, that high school graduates who have prepared themselves for college by working hard for good grades in their classes and good scores on the scholastic aptitude tests, and who have endeavored to work in the summer to aid in the expense of postsecondary education, are rarely turned away by a parent who is respectfully asked to contribute to his or her postsecondary education. The key to this problem is to recognize that the love, respect and humility that a child owes and gives to his or her parents' will usually control the volitional contributions made by a non-obiigated divorced parent.

I find, therefore, that Act 62 differentiates between parents similarly situated and that this classification bears no reasonable relationship to a legitimate legislative purpose. Application of Christy, supra, 362 Pa. 347, 67 A.2d 85; Dansby, supra, 424 Pa.Super. 549, 623 A.2d 816; see also McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). Act 62, which codifies this, court’s pronouncements beginning with Ulmer v. Sommerville, supra, 200 Pa.Super. 640, 190 A.2d 182, frustrates the legislative purpose to assure children of divorced parents a postsecondary education. History should teach us that the children of divorced parents may fare better without heightened interference, and humility should enable us to look back on the past thirty years and honestly assess the utility our pronouncements have had in these skirmishes. “It is by practical experience and not by theoretical inconsistencies that the question of equal protection is to be decided.” Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110, 69 S.Ct. 463, 465, 93 L.Ed. 533 (1949). As one commentator has noted:

[I]n a free society the law should force one adult to subsidize another only in compelling circumstances; and, a young adult’s desire to attend college, however laudable it may be, cannot reasonably be said to meet this test. If the ambition and aptitude are present, it is probable that the aspiring student will find a way to obtain [an] education without making his [or her] reluctant and financially-pressed parent help pay for the same; and, such a graduate will have attained, along with [a] degree, an appreciation of what industriousness and self-discipline can accomplish.

Moore, Parents’ Support Obligations to Their Adult Children, 19 Akron L.Rev. 183, 184 (1985).

I discern no rational basis for compelling divorced parents to pay for their adult child’s postsecondary education where no similar obligation lies with non-divorced parents. It is with the foregoing in mind that I conclude that Act 62, which imposes a duty of postsecondary educational support upon divorced parents where no similar obligation exists for married parents, is unconstitutional on equal protection grounds. Application of Christy, supra, 362 Pa. 347, 67 A.2d 85; 16A Am.Jur.2d, Constitutional Law, §§ 735-738 (1979); 7A P.L.E. Constitutional Law, § 241 (1980). See Moore, Parents’ Support Obligations to Their Adult Children, 19 Akron L.Rev. 183, 192 (1985) (presenting the argument that compelling divorced parents but not married parents to pay post-minority support is a violation of equal protection). Cf. Dillard v. Dillard, 104 N.M. 763, 727 P.2d 71 (App.1986) (trial court acted beyond its statutory authority in ordering support for children’s educational needs past the age of eighteen). But see LeClair v. LeClair, 137 N.H. 213, 624 A.2d 1350 (1993); Neudecker v. Neudecker, 566 N.E.2d 557 (Ind.App.2 Dist.1991), aff'd, 577 N.E.2d 960 (Ind.1991); Kujawinski v. Kujawinski, 71 Ill.2d 563, 17 Ill.Dec. 801, 376 N.E.2d 1382 (1978). For this reason, I would reverse the trial court’s order.

CAVANAUGH, J., joins.

      . "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts....” U.S. Const, art. I, § 10, cl. 1.

      . "No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.” Pa. Const, art. 1, § 17.

      . The term "divorced parents” will hereinafter refer to all parents to which Act 62 is applicable, including unmarried parents or separated parents subject to a support agreement, support order, property settlement agreement, equitable distribution agreement, custody agreement and/or court orders and agreed to or stipulated court orders. See 23 Pa.C.S. § 4327(i)(l).

      . Act 62 provides:
      § 4327. Postsecondary education costs
      (a) General rule. — Where applicable under this section, a court may order either or both parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation to provide equitably for educational costs of their child whether an application for this support is made before or after the child has reached 18 years of age. The responsibility to provide for postsecondaiy educational expenses is a shared responsibility between both parents. The duty of a parent to provide a postsecondaiy education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself. This authority shall extend to postsecondaiy education, including periods of undergraduate or vocational education after the child graduates from high school. An award for postsecondaiy educational costs may be entered only after the child or student has made reasonable efforts to apply for scholarships, grants and work-study assistance.
      (b) Action to recover educational expenses. — An action to recover educational costs may be commenced:
      (1) by the student if over 18 years of age;
      (2) by either parent on behalf of a child under 18 years of age, but, if the student is over 18 years of age, the student’s written consent to the action must be secured.
      (c) Calculation of educational costs. — In making an award under this section, the court shall calculate educational costs as defined in this section.
      (d) Grants and scholarships. — The court shall'deduct from the educational costs all grants and scholarships awarded to the student.
      (e) Other relevant factors. — After calculating educational costs and deducting grants and scholarships, the court may order either parent or both parents to pay all or part of the remaining educational costs of their child. The court shall consider all relevant factors which appear reasonable, equitable and necessary, including the following:
      (1) The financial resources of both parents.
      (2) The financial resources of the student.
      (3) The receipt of educational loans and other financial assistance by the student.
      (4) The ability, willingness and desire of the student to pursue and complete the course of study.

        (5) Any willful estrangement between parent and student caused by the student after attaining majority.
      (6) The ability of the student to contribute to the student's expenses through gainful employment. The student’s history of employment is material under this paragraph.
      (7) Any other relevant factors.
      (f) When liability may not be found. — A court shall not order support for educational costs if any of the following circumstances exist:
      (1) Undue financial hardship would result to the parent.
      (2) The educational costs would be a contribution for postcollege graduate educational costs.
      (3) The order would extend support for the student beyond the student’s twenty-third birthday. If exceptional circumstances exist, the court may order educational support for the student beyond the student’s twenty-third birthday.
      (g) Parent's obligation. — A parent’s obligation to contribute toward the educational costs of a student shall not include payments to the other parent for the student’s living expenses at home unless the student resides at home with the other parent and commutes to school.
      (h) Termination or modification of orders. — Any party may request modification or termination of an order entered under this section upon proof of change in educational status of the student, a material change in the financial status of any party or other relevant factors.
      (i) Applicability.—
      (1) This act shall apply to all divorce decrees, support agreements, support orders, agreed or stipulated court orders, property settlement agreements, equitable distribution agreements, custody agreements and/or court orders and agreed to or stipulated court orders in effect on, executed or entered since, November 12, 1992.
      (j) Definitions. — -As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
      "Educational costs.” Tuition, fees, books, room, board and other educational materials.
      "Postsecondary education.” An educational or vocational program provided at a college, university or other postsecondary vocational, secretarial, business or technical school.
      23 Pa.C.S. § 4327, 1993, July 2, P.L. 431, No. 62, § 3, imd. effective.

      . The Historical and Statutory Notes to Act 62 provides in part:
      It is the intention of the General Assembly by enacting 23 Pa.C.S§ 4327 (relating to postsecondary educational costs) to codify the decision of the Superior Court in the case of [Commonwealth ex rel.] Ulmer v. Sommerville, 200 Pa.Super.Ct. 640, 190 A.2d 182 (1963), and the subsequent line of cases interpreting Ulmer prior to the decision of the Pennsylvania Supreme Court in Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), decided on November 13, 1992.

      . I emphasize that the Act speaks solely to adult children and postsecondary educational support. Neither the Act nor this opinion refers in any way to support for minor children or children in high school. It is well settled that the duty to support a minor child is virtually absolute. Sutliff v. Sutliff, 339 Pa.Super. 523, 537, 489 A.2d 764, 771 (1985), modified on appeal, 515 Pa. 393, 528 A.2d 1318 (1987). Further, I acknowledge that children are innocent parties, often innocent victims, in a divorce, and it is the obligation of the courts to protect them. This protection, however, terminates at adulthood. Blue, supra.