text:
    462 A.2d 827
    NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1982.
    Filed July 8, 1983.

      Robert A. Naragon, Doylestown, for appellant.
    Frederick E. Smith, Philadelphia, for appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   ROWLEY, Judge:

This is an appeal from a declaratory judgment entered in favor of Appellee Insurance Company of North America (hereafter “INA”), holding that Appellant Nationwide Mutual Insurance Company (hereafter “Nationwide”) is the primary insurance carrier responsible for the payment of benefits under the circumstances of this case. We reverse and remand with directions to enter declaratory judgment in favor of Nationwide.

On October 27, 1977, Nancy Bauder, an insured of INA, delivered her 1974 Volkswagon Dasher to Sutton Auto Service of Newtown, Pennsylvania, for the purpose of having it repaired. John J. Sutton, the owner of Sutton Auto Service, permitted Mrs. Bauder to borrow a 1962 Ford Falcon station wagon for the day, anticipating that the repairs on her car would be completed by the following day. The Falcon was insured under a policy of insurance written by Nationwide and issued to “Sutton Auto Service.” Later that day, while Mrs. Bauder was driving the Falcon, she was involved in an accident with a motorcycle near a shopping center in Doylestown, Pennsylvania. Both the driver and the passenger of the motorcycle were injured.

As a result of the accident, the driver and passenger of the motorcycle filed suit against Mrs. Bauder and Sutton Auto Service. The defendants thereupon called upon their respective insurers, the parties herein, to defend the trespass suit. The two insurers have at all times recognized that one or the other of them is primarily liable under their policies of insurance, but they disagree as to which insurer that is. Because no agreement could be reached, Nationwide filed a petition for declaratory judgment on November 13, 1979, seeking a declaration of the rights and liabilities of the insurers. Nationwide argues that its policy excludes coverage under the circumstances; INA contends on the other hand that it owes only a duty to provide coverage in excess of the limits of the policy issued by Nationwide and that Nationwide is the primary insurer.

The parties submitted the case to the court on the pleadings, briefs and depositions of the two insureds. The trial court entered an order on August 10, 1981, granting declaratory judgment in favor of INA. This appeal followed.

In its opinion, the trial court properly sets forth and analyzes the policy issued to Mrs. Bauder by INA as follows:

Section A of the policy is captioned “Bodily Injury and Property Damage Liability Coverage” and provides in relevant part as follows:
To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of:
(a) bodily injury ... sustained by any person; and
(b) injury to or destruction of property ...; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the Company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the policy____
The policy definefs] “owned automobile” to include, inter alia, a “temporary substitute automobile.” A “temporary substitute automobile” is defined as the following:
... [A]ny automobile ... not owned by the Named Insured, while temporarily used as a substitute for the owned automobile ... when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.
Part B of Section A, in a clause captioned “Other Insurance,” provides in relevant part as follows:
... [T]he insurance with respect to a temporary substitute automobile or a non-owned automobile shall be excess insurance over any other valid and collectible insurance.
From the facts of the case it was clear that at the time of the collision Nancy Bauder was driving a temporary substitute automobile as defined in her INA policy. She did not own the vehicle but was using it because the insured auto was out of use because of breakdown, repair or servicing. As such her policy with INA initially provides coverage. This coverage is limited, however, by the “Other Insurance” clause in the policy which limits INA’s liability to losses not covered by any other insurance. It is clear then that if Nationwide is not the primary insurer under the policy held by Sutton, then INA must assume full liability. If, however, Sutton’s Nationwide Policy does cover the loss, then INA has only excess liability.
Tr.Ct.Op. at 3-4.

The trial court also correctly sets forth, Tr.Ct.Op. at 4-5, the applicable provisions of the policy issued to Mr. Sutton by Nationwide:

Under this coverage if you become legally obligated to pay damages resulting from ownership, maintenance, use, loading or unloading your auto, we will pay for such damages____ Also protected is any person or organization who is legally responsible for the use of your auto and uses it with your permission....
[PROPERTY DAMAGE & BODILY INJURY LIABILITY COVERAGE: COVERAGE EXCLUSIONS—]
(3) [This auto property and bodily injury liability insurance] does not cover ownership, maintenance, or use of vehicles in an automobile business operation, such as an auto repair shop, public garage or parking place, sales agency, or service station. However, it does cover the maintenance and use of your auto by you, a member of your household, or anyone associated with or employed by you in such a business.

The court then stated that these provisions amounted to an “ ‘auto repair shop’ exclusion” and held that such an “exclusion was not intended to apply to a situation where the vehicle, which happens to be owned by a repair shop owner, is loaned to a customer.” Id. at 6.

We have concluded that the trial court incorrectly construed this third exclusion by limiting its application solely to a situation where an insured leaves the insured vehicle in an auto repair shop for repairs. Clause (3) quoted above expressly extends coverage to the owner of the insured car, a member of his or her household and anyone “associated with or employed by” the owner in an “automobile business operation.” The exclusion operates to deny coverage, inter alia, where a business-related automobile is used by someone not associated with the owner or with the “automobile business operation” in which the car is used. Thus, the policy is worded in such a way as to deny coverage to the borrower of a business loaner car, such as Mrs. Bauder.

We also are compelled to disagree with the trial court’s factual finding that the Falcon was not “used in the business.” Tr.Ct.Op. at 2, n. 2. Such a finding is contrary to the clear weight of the evidence. Mr. Sutton testified at his deposition that the car was kept primarily for business purposes: the automobile was purchased for business use with business funds; it was registered and insured in the name of the business; it was used for running errands related to the business, such as obtaining parts; and Sutton had established a practice of lending the car to customers he had come to know when their personal cars needed repairs. Mrs. Bauder had in fact been one of the customers permitted to borrow the car on at least one occasion prior to the events in this case. Sutton’s testimony on these points was neither contradicted by any other evidence nor shaken on cross-examination. The fact that Sutton also used the Falcon for personal purposes does not alter the uncontradicted evidence that the automobile was also used in his business. Even if this automobile had been used in the business for only one day—the day of the accident—Nationwide’s policy would not provide coverage for the injuries sustained unless the car was being used by Mr. Sutton, a member of his household, a business associate or an employee. Likewise, lending the car to a personal friend would not cause the policy’s exclusion to be inapplicable as long as the loan was made in the course of doing business in an “automobile business operation.” We therefore conclude that the exclusion from the Nationwide policy quoted above applies to the uncontradicted facts of this case and that, as between the two parties, INA is the insurer obligated to provide benefits under the circumstances here present.

Both INA and the trial court drew some significance from other policies issued by Nationwide to Sutton Auto Service and Sutton. The first of these is described as a “garage-man’s liability policy” issued to Sutton Auto Service and insuring a one ton pick-up truck and a tow truck. The other policy was issued to Sutton individually and covers two passenger vehicles owned and operated by Sutton and his wife totally apart from the business except for a few isolated instances when a business-related use was necessary. INA argues that because the Falcon was not covered by the “garageman’s policy” but on a separate “individual” policy, Sutton owned the Falcon “individually” and not as a business related vehicle and that the loan to Mrs. Bauder was a personal loan or favor rather than in the course of business. However, there is nothing in this record to indicate that Mr. Sutton had ever loaned any of his cars to someone who was not a customer or that he would have loaned the Falcon to Mrs. Bauder had she not been a customer. On the contrary, the record shows that Mrs. Bauder obtained the use of the Falcon solely because she was a customer of Sutton Auto Service. The fact that Sutton approved such loans only for customers he knew does not indicate that it was done as a personal favor. Rather, it shows that he was making a thoughtful and rational business decision: only regular, known customers would be permitted to use the car because they could be trusted to take care of it and return it undamaged. Furthermore, the fact that there were separately written policies covering different cars does not aid in determining what the language of the applicable policy means. Finally, any meaningful inference which can be drawn from the fact that the Falcon was insured on a separate policy from the business’ trucks is balanced equally by a contrary inference from the fact that it was also insured separately from the Sutton’s family cars. We therefore reject INA’s argument.

The order of the trial court is reversed and this case is remanded for the entry of judgment in favor of the appellant in this case, Nationwide Mutual Insurance Company.

Jurisdiction is not retained.

      . At oral argument, counsel informed the court that the underlying action in trespass had been settled and the driver and passenger of the motorcycle had been compensated for their injuries. The only issue remaining is which insurer will ultimately be required to bear the loss.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    462 A.2d 830
    COMMONWEALTH of Pennsylvania v. Samuel BENEDETTO, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 26, 1983.
    Filed July 8, 1983.
    Petition for Allowance of Appeal Denied Nov. 8, 1983.

      Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   ROWLEY, Judge:

Appellant was convicted, after a non-jury trial, of burglary, theft by unlawful taking or disposition, and receiving stolen property. Post-trial motions were filed and denied. Appellant was sentenced to two and one-half to five years imprisonment for burglary. Sentence was suspended on the theft and receiving stolen property charges. This direct appeal followed.

Two issues are raised on appeal: 1) Did the court err in failing to suppress (a) a ring seized from appellant and, (b) appellant’s confession?; and 2) Were the sentences imposed illegal?

In reviewing the denial of a motion to suppress evidence, this court will only consider the evidence of the prosecution and so much of the evidence for the defense as, read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Leveille, 289 Pa.Super. 248, 433 A.2d 50 (1981).

Using that standard, the record reveals the following. On June 17, 1981, at approximately 3:00 A.M., Officer Simms of the Clairton Police observed appellant, an acquaintance of sixteen years, pulling into a parking lot in a heavily damaged car. Concerned about appellant’s well-being, the officer approached him to determine if he needed assistance. During the conversation, the officer noticed a large diamond ring on appellant’s finger. When the officer asked for a closer look, appellant showed it to him. Realizing that the ring resembled one taken in a recent burglary, the officer mentioned the burglary to appellant and asked if he could take the ring for identification purposes. Appellant consented, stating that he had won the ring in a crap game. Appellant requested a receipt for the ring, but left while the officer was writing it.

On June 21, 1981, following identification of the ring, appellant was arrested for receiving stolen property. On that same day, the victim went to the police station in hope of recovering some of his stolen property. Appellant was booked and given his Miranda rights. He refused to make a statement to the police, but requested to speak to the victim, who was also a long-time acquaintance of appellant. Officer Simms agreed and proceeded to make some phone calls. He then overheard appellant tell the victim that he had committed the burglary. The police subsequently arrested appellant on additional charges of burglary and theft by unlawful taking.

We hold that the evidence in this case was properly obtained. Therefore, the court correctly denied appellant’s motion to suppress the ring and his confession.

Seizure of the stolen ring was justified under the plain view doctrine. Upon observing appellant’s heavily damaged car, it was proper for the officer to approach appellant and inquire whether he needed assistance. His subsequent viewing of the ring was inadvertent. Therefore, both requirements of the plain view doctrine were satisfied. Commonwealth v. Adams, 234 Pa.Super. 475, 341 A.2d 206 (1975).

Furthermore, the evidence supports a finding that appellant consented to the seizure. There was no evidence of any duress or coercion. Appellant was free to leave the scene at any time. Before he gave the ring to the officer, appellant knew it would be taken to the burglary victim for identification purposes. He did not merely acquiesce to a claim of lawful authority, but knowingly and intelligently waived his fourth amendment rights. Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973).

We also hold that appellant’s confession was properly admitted into evidence. Appellant claims that the police used the victim to employ subtle psychological coercion on him in order to get him to say to the victim what he refused to say to the police. This argument is without merit.

Appellant has failed to establish that his incriminating statement was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). After appellant invoked his Miranda rights, the police did not attempt to question him. It was appellant himself who requested to speak to the victim. The evidence shows that he voluntarily chose to make a statement to the victim while in the police station and within hearing distance of a police officer.

Appellant is not entitled to a new trial. However, his argument concerning the legality of his sentence does have merit.

A person may not be convicted both for burglary and for the offense which it was his intent to commit after the entry, unless the additional offense constitutes a felony of the first or second degree. 18 Pa.C.S.A. § 3502(d). Therefore, the counts of theft and receiving stolen property should have merged with burglary for sentencing purposes. Commonwealth v. Harris, 269 Pa.Super. 41, 409 A.2d 53 (1979).

Because of the future prejudice to appellant, the improperly imposed sentences should be vacated even though they were suspended. Commonwealth v. Richard son, 232 Pa.Super. 123, 334 A.2d 700 (1975). We have the option to either remand for resentencing or amend the sentence directly. Commonwealth v. Gonzales, 297 Pa.Super. 66, 443 A.2d 301 (1982). Since the suspended sentences did not affect the sentence for burglary, we will not remand but will merely vacate the suspended sentences.

Judgment of Sentence for burglary affirmed. Judgments of Sentence for theft and receiving stolen property vacated.


author: WIEAND, Judge:

text:
    462 A.2d 833
    Ronald A. CARGILL v. NORTHWESTERN NATIONAL INSURANCE COMPANY OF MILWAUKEE, WISCONSIN, Appellant. NORTHWESTERN NATIONAL INSURANCE COMPANY OF MILWAUKEE, WISCONSIN, Appellant, v. Ronald A. CARGILL.
    Superior Court of Pennsylvania.
    Argued April 22, 1982.
    Filed July 8, 1983.

      Roger Joseph Harrington, Philadelphia, for appellant.
    Eugene A. Spector, Philadelphia, for appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WIEAND, Judge:

Ronald A. Cargill, a Pennsylvania resident employed by Minnesota Mining and Manufacturing Company, was injured in an automobile accident on January 1, 1979 in Queens, New York. The vehicle which Cargill was operating at the time of the accident was owned by his employer, Minnesota Mining and Manufacturing Company, and insured under a policy issued to the employer by Northwestern National Insurance Company of Milwaukee, Wisconsin (hereinafter “Northwestern”). The vehicle which struck Cargill’s automobile from behind was operated by an uninsured motorist. Cargill submitted a claim for benefits under the uninsured motorist coverage provided by the insurance policy issued to his employer and, when the parties were unable to agree on an amount, filed a demand for arbitration. A hearing was held, after which the arbitrators, with one dissent, awarded Ronald A. Cargill the sum of $35,000.00.

Subsequently, a petition to vacate and/or modify the arbitration award was filed by Northwestern, and Cargill, in turn, petitioned for confirmation of the award. Northwestern contended that the award was excessive because it was in an amount more than twenty-five times greater than the medical expenses of $1,385.00. Northwestern alleged also and offered to prove that the arbitration had proceeded under the wrong policy of insurance, resulting in an award in excess of the coverage afforded by the correct policy. Although counsel for Northwestern offered to prove the purported mistake and was prepared to present witnesses, no evidence was in fact received. The trial court rejected Northwestern’s arguments and entered an order granting Cargill’s petition to confirm the arbitration award. Judgment was entered, and this appeal followed.

Arbitration is “designed to provide an expeditious and inexpensive method of resolving disputes with the further winning attribute of helping to ease congested court calendars____” Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 116, 299 A.2d 585, 589 (1973). Consequently, judicial review of an arbitration award is severely circumscribed. It must be so; otherwise, “ ‘arbitration proceedings, instead of being a quick and easy mode of obtaining justice, would be merely an unnecessary step in the course of litigation, causing delay and expense, but settling nothing finally.’ ” Allstate Insurance Co. v. Fioravanti, supra, 451 Pa. at 114 n. 4, 299 A.2d at 589 n. 4 quoting Westinghouse Air Brake Co. Appeal, 166 Pa.Super. 91, 97, 70 A.2d 681, 684 (1950). See also: Bole v. Nationwide Insurance Co., 238 Pa.Super. 138, 141, 352 A.2d 472, 473-474 (1975), vacated on other grounds, 475 Pa. 187, 379 A.2d 1346 (1977).

“In order to determine whether an arbitration is one at common law or under the Arbitration Act, we examine the language in the contract and the procedure followed during the arbitration.” Wingate Construction Co. v. Schweizer Dipple, Inc., 419 Pa. 74, 77, 213 A.2d 275, 276-277 (1965). See also: Runewicz v. Keystone Insurance Co., 476 Pa. 456, 460-461, 383 A.2d 189, 191 (1978). The language of the insurance policy submitted to the arbitrators in the case sub judice provided for arbitration according to, and the arbitrators in fact proceeded pursuant to, rules of the American Arbitration Association, which is to say, at common law. Compare: General Accident Fire and Life Assurance Corp. Ltd. v. Flamini, 299 Pa.Super. 312, 315, 445 A.2d 770, 772 (1982).

“The decision of the arbitrator in a common-law arbitration is binding and cannot be attacked unless it can be shown by clear, precise and indubitable evidence that a party was denied a hearing, or that there was fraud, misconduct, corruption or other irregularity which caused the rendition of an unjust, inequitable or unconscionable award.” Smith v. Employer’s Liability Assurance Corp., Ltd., 217 Pa.Super. 31, 33-34, 268 A.2d 200, 201 (1970) (collecting cases). See also: Nationwide Mutual Insurance Co. v. Barbera, 443 Pa. 93, 95, 277 A.2d 821, 823 (1971); Friedman v. Friedman, 277 Pa.Super. 428, 431, 419 A.2d 1221, 1223 (1980); Reinhart v. State Automobile Insurance Co., 242 Pa.Super. 18, 23, 363 A.2d 1138, 1140 (1976); Owens v. Concord Mutual Insurance Co., 210 Pa.Super. 235, 239, 232 A.2d 14, 16 (1967). The arbitrators are the final judges of both law and fact, their award not being subject to reversal for a mistake of either. Runewicz v. Keystone Insurance Co., 476 Pa. 456, 461, 383 A.2d 189, 191-192 (1978); Allstate Insurance Co. v. Fioravanti, supra, 451 Pa. at 114, 299 A.2d at 588; Harwitz v. Selas Corp. of America, 406 Pa. 539, 542, 178 A.2d 617, 619 (1962); Mellon v. Travelers Insurance Co., 267 Pa.Super. 191, 195, 406 A.2d 759, 761 (1979).

In view of the conclusiveness which is accorded the arbitrators’ award, Northwestern’s contention that the award should be set aside merely because of excessiveness is lacking in merit and must be dismissed. Northwestern’s reliance on language in Allstate Insurance Co. v. Fioravanti, supra, 451 Pa. at 116, 299 A.2d at 589, which recognizes the possibility of “an arbitration award which imports such bad faith, ignorance of the law and indifference to the justice of the result as to ... give content to the phrase ‘other irregularity’ ” is also unavailing. The type of irregularity acknowledged by Fioravanti goes beyond the amount of the award and suggests an unconscionable injustice. Merely characterizing an arbitration award as “excessive” is insufficient to justify setting aside the award.

Similarly, we are unpersuaded by Northwestern’s contention that the award should be set aside because arbitration proceeded under the wrong policy of insurance and the award exceeded the correct policy’s limit of liability. Although no testimony in support of this contention was received, the facts which Northwestern intended to show were contained in an offer of proof and can be summarized briefly. Following the automobile accident in which Cargill sustained injury, he notified the employer’s insurance carrier of his claim. A claims adjuster completed an “Accident or Loss Notice” which identified the applicable insurance policy as Number CLA 783715, issued to Minnesota Mining and Manufacturing Company. This policy contained a limit of liability in the amount of $15,000.00 for the vehicle which appellee had been driving. Several months later, Cargill submitted a claim for benefits to Northwestern. This form also bore Policy Number CLA 783715 and specified Minnesota Mining and Manufacturing Company as the employer-policyholder. In order to ascertain the terms of the coverage, Cargill’s counsel contacted Northwestern’s claims adjuster and requested a copy of the Minnesota Mining and Manufacturing insurance policy, Number CLA 783715. In response thereto, a copy of the cover sheet and a document explaining the uninsured motorist coverage for Policy Number CLA 783715(D) was forwarded to counsel by Michael C. Munson, Casualty Supervisor for Northwestern’s adjuster. The cover sheet identified the 3-M Club of St. Paul as the policyholder and recited coverage of $100,000.00. Upon receipt of these documents, a demand for arbitration under Policy Number CLA 783715(D), issued to the 3-M Club of St. Paul, was served upon Northwestern. Arbitrators were appointed, a hearing was held, the cover sheet for Policy Number CLA 783715(D) was introduced into evidence, and an award of $35,000.00 was rendered. Northwestern did not discover the submission of an incorrect policy until after the award had been entered.

Appellant contends that the policy referred to by the parties and pursuant to which the arbitration proceeded, misled the arbitrators regarding the coverage applicable to the controversy. Its argument can be analogized to a request for a new trial on the basis of after discovered evidence. “After discovered evidence is not grounds for a new trial unless it is established that the evidence could not have been obtained at trial by reasonable diligence.” Frank B. Bozzo, Inc. v. Electric Weld Division of the Fort Pitt Bridge Division of Spang Industries, Inc., 283 Pa.Super. 35, 48, 423 A.2d 702, 708 (1980), aff'd, 495 Pa. 617, 435 A.2d 176 (1981). “To justify the grant of a new trial on the grounds of after discovered evidence, the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility and must be such as would likely compel a different result.” Townsend Will, 436 Pa. 185, 190, 258 A.2d 518, 520 (1969); Freed v. Priore, 247 Pa.Super. 418, 424, 372 A.2d 895, 899 (1977). “Courts will not aid parties where they have failed to take the requisite steps to procure their evidence .... ” Limper v. Philadelphia Electric Co., 297 Pa. 204, 210, 146 A. 574, 576 (1929).

Appellant concedes that the introduction of an incorrect policy resulted from its own error. The correct policy of insurance was at all times available to it and, in the exercise of due diligence, could have been presented to the arbitrators before the proceedings were concluded and an award entered. Under these circumstances, the trial court correctly refused to set aside the award because appellant had offered in evidence an incorrect policy of insurance.

The arbitrators’ award was neither fraudulent nor irregular; it was based upon the evidence placed before the arbitrators by the parties. The judgment entered on their award, therefore, will be affirmed.

Judgment affirmed.

      . Northwestern's appeals from the granting of Cargill's petition to confirm and from the denial of its own petition to vacate or modify were consolidated for purposes of appeal.

      . The scope of review accorded a statutory arbitration, while by no means broad, is nonetheless less restrictive than that applicable to common law arbitration. "[T]he lower court’s scope of review under the Arbitration Act is the same as that upon a petition for judgment notwithstanding the verdict of a jury, and thus the court is empowered to correct the award for a mistake of law.” Young v. United States Fidelity and Guaranty Co., 299 Pa.Super. 237, 239, 445 A.2d 542, 543 (1982). See: Act of April 25, 1927, P.L. 381, No. 238, § 1 et seq., as amended, 5 P.S. § 161 et seq. (repealed by Act of October 5, 1980, P.L. 693, No. 142, § 501(c)) (current version at 42 Pa.C.S. § 7301 et seq.). See also: State Farm Mutual Automobile Insurance Co. v. Williams, 481 Pa. 130, 134-136, 392 A.2d 281, 283 (1978).

      . Appellant contends that the mistake regarding the policy was mutual. There was no offer to prove that appellee or his counsel knew of the error and proceeded to arbitration without disclosing the same.

      . We do not consider appellee's argument that the policy issued to Minnesota Mining and Manufacturing was a "fleet" policy and that the arbitrators, by “stacking” coverages on the vehicles insured, would probably have reached the same result under the terms and provisions of that policy.


text:
    462 A.2d 836
    Sherry GREIDER, a minor, By her mother and natural guardian, Nancy RYAN, and Nancy Ryan, in her own right, Appellants, v. PENNSYLVANIA ASSIGNED CLAIMS PLAN, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1983.
    Filed July 8, 1983.

      Jerry L. Cohen, Philadelphia, for appellants.
    David B. Glancey, Philadelphia, for appellee.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   WIEAND, Judge:

The issue in this appeal is whether Section 201 of the Pennsylvania No-fault Motor Vehicle Insurance Act is unconstitutional on due process or equal protection grounds because it limits the recovery of basic loss benefits to an insured or the driver or occupant of a secured vehicle if the accident occurs outside Pennsylvania. We hold that the statutory limitation is constitutional. Therefore, we affirm the trial court’s order entering a summary judgment dismissing, with prejudice, a claim for basic loss benefits where the claimant, injured in a New Jersey automobile accident, was neither an insured nor an occupant of a secured vehicle.

Sherry Greider, a minor and a resident of Pennsylvania, was an occupant of a vehicle owned and operated by Steven Stackhouse, also a resident of Pennsylvania, when the vehicle was involved in a one-car accident in Berlin, New Jersey, on July 5, 1978. Neither Sherry Greider nor any member of her household owned an automobile or was an insured under a policy of motor vehicle insurance. The vehicle owned and operated by Stackhouse was not an insured vehicle, and Stackhouse was not insured under any other policy of insurance. Sherry filed a claim for basic loss benefits with appellee, Pennsylvania Assigned Claims Plan, which denied the claim. The insurance company did so on grounds that the minor appellant was not entitled to no-fault benefits because she had been injured in an out of state accident and was not an insured or the driver or occupant of a secured vehicle as required by Section 201(b) of the No-fault Act, 40 P.S. § 1009.201(b). Mrs. Ryan, Sherry’s mother, who was not an occupant of the Stack-house vehicle at the time of the accident, filed a claim for work loss benefits based upon her voluntary absence from work to care for Sherry following her release from the hospital. The Pennsylvania Assigned Claims Plan also refused Mrs. Ryan’s claims on grounds that she was neither a victim nor the survivor of a deceased victim as required by Section 201 of the No-Fault Act, 40 P.S. § 1009.201. See: Samsel v. Travelers Indemnity Company, 295 Pa.Super. 188, 191, 441 A.2d 412, 414 (1982) allocatur denied May 6, 1982; Erie Insurance Exchange v. Fleagle, 285 Pa.Super. 310, 313, 427 A.2d 651, 653 (1981).

Section 201 of the No-Fault Act provides:

“Right to basic loss benefits; limitation on benefits
(a) Accident within this State.—If the accident resulting in injury occurs in this Commonwealth, any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provisions of this act.
(b) Accident outside this State.—If the accident resulting in injury occurs outside of this Commonwealth, a victim or a survivor of a deceased victim is entitled to receive basic loss benefits if such victim was or is:
(1) an insured; or
(2) the driver or other occupant of a secured vehicle.”
40 P.S. § 1009.201.

It is apparent that the No-fault Act distinguishes between injuries attributable to accidents occuring within and those occurring outside Pennsylvania and expressly provides that basic loss benefits are unavailable where an accident occurs outside the Commonwealth and neither the victim nor the vehicle in which the injury was sustained was insured. See: Lyngarkos v. Commonwealth, Department of Transportation, 57 Pa.Cmwlth. 121, 125, 426 A.2d 1195, 1198 (1981). Under such circumstances, an injured person is not entitled to no-fault benefits but is free to seek recovery for damages in a common law tort action. 40 P.S. § 1009.301. See: Samsel v. Travelers Indemnity Company, supra 295 Pa.Super. at 191, 441 A.2d at 414; Lyngarkos v. Commonwealth, Department of Transportation, supra 57 Pa.Cmwlth. at 125, 426 A.2d at 1198.

Appellants argue that the denial of basic loss benefits to an uninsured victim injured outside of Pennsylvania while a passenger in an uninsured vehicle violates the victim’s right to equal protection and due process. We disagree. “In drafting the No-fault Act, the Legislature sought to insure that all individuals injured as a result of motor vehicle accidents in the Commonwealth would be equitably compensated for their injuries. 40 P.S. § 1009.-102(a)(3), (9), and (b).” Borrell v. Continental Casualty Company, 310 Pa.Super. 554, 558 n. 2, 456 A.2d 1074, 1076 n. 2 (1983) (emphasis supplied). See also: Singer v. Sheppard, 464 Pa. 387, 403, 346 A.2d 897, 905 (1975); Monaghan v. Pennsylvania Manufacturers’ Association Insurance Co., 301 Pa.Super. 419, 422, 447 A.2d 1037, 1038 (1982); 40 P.S. § 1009.102(b). The No-fault Act was “not intended to be a panacea for all injuries that could be traced to a motor vehicle____” Monaghan v. Pennsylvania Manufacturers’ Association Insurance Co., supra, 301 Pa.Superior at 424, 447 A.2d at 1040. It does not provide no-fault benefits for residents of Pennsylvania, irrespective of the purchase of insurance protection, who are injured in accidents occurring in other states or parts of the country. If no-fault benefits are unavailable, however, the right to bring a common law tort action remains. The legislature expressly provided that tort liability should be abolished only “with respect to any injury that takes place in this State in accordance with the provisions of this act____” 40 P.S. § 1009.301(a) (emphasis supplied).

It is well settled that “[t]he establishment of boundaries for varied treatment is a function oft-performed by the legislature and seldom questioned by the courts. Goodman v. Kennedy, 459 Pa. 313, 326-327, 329 A.2d 224, 228-29 (1974).” Singer v. Sheppard, supra 464 Pa. at 403, 346 A.2d at 905 (footnote omitted). “ ‘[T]he Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways.’ Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971), and cases cited therein. Except where an invidious discrimination against a suspected class is at issue or a fundamental right burdened, ‘a legislative classification must be sustained unless it is “patently arbitrary” and bears no rational relationship to a legitimate governmental interest.’ Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 1768, 36 L.Ed.2d 583 (1973).” Singer v. Sheppard, supra 464 Pa. at 402, 346 A.2d at 904-905 (footnotes omitted). Moreover, “legislation need not correct a social problem in its entirety with one totally encompassing enactment. ‘Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others.’ ” Id., 464 Pa. at 407, 346 A.2d at 907 quoting Williamson v. Lee Optical Company, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955) (emphasis in original). The legislative determination to limit the provisions of the Pennsylvania No-fault Act to accidents occurring in Pennsylvania and/or accidents in which the victim or vehicle is insured pursuant to the Pennsylvania No-fault Act is clearly reasonable and rationally related to the legitimate purposes of the Act. See: Samsel v. Travelers Indemnity Company, supra 295 Pa.Super, at 191-192, 441 A.2d at 414.

Appellants have not been denied due process of law by reason of their inability to recover no-fault benefits from the Pennsylvania Assigned Claims Plan. “The Plan is a statutorily created fund designed as a safeguard for unforeseen situations in which no carrier which receives premiums is available to respond. 40 P.S. § 1009.108.” Borrell v. Continental Casualty Co., supra 310 Pa.Super. at 558, 456 A.2d at 1077 (emphasis supplied). The fund is composed of moneys collected from insurers who provide insurance within the Commonwealth and not from state treasury funds. 40 P.S. § 1009.108(b). While appellants are precluded from recovering basic loss benefits under the No-fault Act, they remain free to pursue recovery of all resulting damages in a common law tort action. 40 P.S. § 1009.301. Provisions such as are contained in the No-fault law clearly do not violate due process or equal protection principles under the federal Constitution. The challenged provisions of the No-fault Act being constitutional, the trial court’s order granting summary judgment in favor of appellee is affirmed.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, § 201, 40 P.S. § 1009.201.

      . On appeal to this Court, Mrs. Ryan has not contended that the dismissal of that part of the complaint seeking work loss benefits in her own right was improper.

      . We observe that such victims are not precluded from purchasing insurance providing coverage for such injuries.


text:
    462 A.2d 840
    COMMONWEALTH of Pennsylvania v. Thomas ROBINSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 26, 1983.
    Filed July 8, 1983.
    Petition for Allowance of Appeal Denied Oct. 17, 1983.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

Thomas Robinson was tried by jury and found guilty of statutory rape and corruption of a minor. Post trial motions were denied, and appellant was sentenced to serve concurrent terms of imprisonment. In this direct appeal from the judgments of sentence, he contends that the evidence was insufficient to sustain the convictions because the Commonwealth failed to establish the exact dates upon which the offenses occurred. Robinson also argues that the trial court committed reversible error by permitting the victim to testify to alleged sexual acts with appellant on dates prior to those charged in the information. Finding appellant’s arguments to be devoid of merit, we affirm the judgments of sentence.

“The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 975, 977 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). Accord: Commonwealth v. Lee, 460 Pa. 374, 377, 333 A.2d 773, 775 (1975); Commonwealth v. Miller, 303 Pa.Super. 504, 507, 450 A.2d 40, 41 (1982); Commonwealth v. Riquelmy, 303 Pa.Super. 403, 405, 449 A.2d 750, 751 (1982); Commonwealth v. Corish, 296 Pa.Super. 92, 94, 442 A.2d 311, 313 (1982). In making this evaluation, all evidence received by the fact finder must be considered, whether the trial court’s rulings thereon were correct or incorrect. Commonwealth v. Lovette, supra 498 Pa. at 669, 450 A.2d at 977; Commonwealth v. Cohen, 489 Pa. 167, 177, 413 A.2d 1066, 1072 (1980), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980); Commonwealth v. Corish, supra 296 Pa.Super. at 94-95, 442 A.2d at 313.

When so viewed, the evidence introduced at trial established the following facts: In 1976, the victim, Wanda F_, her younger sister, Willa, and her mother began sharing a home with appellant, the paramour of Wanda’s mother. Wanda, then approximately 9 years of age, treated appellant as her stepfather and called him “Pop.” She testified that sometime in January of 1978 appellant informed her that she had contracted a venereal disease and required treatment for it. Wanda testified that appellant told her he had learned of her “illness” when he saw her name on records in a medical center and assured her that he was a paramedic and could administer the treatments necessary to cure her “disease.” Wanda testified that it was approximately on a weekly basis, beginning in January of 1978, that appellant inserted a syringe and other objects as well as his penis into her vagina on the pretense of treating her for venereal disease. In August, 1980, Wanda attended a course in sex education and learned that appellant had been lying to her. She frequently visited her priest, Father McAteer, during the following two week period and was urged by him to explain to her mother what had been occurring. Wanda finally told her mother in November of 1980 and Wanda, her mother and sister immediately vacated the house in which they had been living with appellant. Prosecution followed.

Appellant argues that the evidence was insufficient to sustain the convictions for statutory rape and corruption of a minor because the Commonwealth did not “establish with any degree of certainty a particular date ... on which an act of sexual intercourse was alleged to have occurred.” While the Commonwealth must establish to a reasonable degree of certainty the approximate date of the offense charged, “[t]he Commonwealth need not always prove a single specific date of the crime.” Commonwealth v. Devlin, 460 Pa. 508, 516, 333 A.2d 888, 899 (1975). Accord: Commonwealth v. Niemetz, 282 Pa.Super. 431, 441, 422 A.2d 1369, 1374 (1980) allocatur denied February 3, 1981; Commonwealth v. Speicher, 259 Pa.Super. 433, 440, 393 A.2d 904, 907 (1978). See also: Commonwealth v. Yon, 235 Pa.Super. 232, 237, 341 A.2d 169, 171-172 (1975).

In the instant case, Wanda testified that sexual acts had occurred on a weekly basis from January of 1978 until September of 1980. She had made entries in a diary on numerous dates during 1978 and 1979 and had noted in that diary three instances regarding appellant’s “treatments” of her. While Wanda testified that only one of the entries had been made immediately after the event and that she was uncertain of which entry had been made contemporaneously, the evidence was sufficient to establish with reasonable certainty the dates on which acts constituting the crimes of statutory rape and corruption of a minor had occurred. Moreover, Wanda testified that appellant’s “treatments” of her had occurred “about three times a week” between 1978 and September of 1980. This testimony was sufficient to establish to a reasonable certainty the dates of intercourse. The Pennsylvania Supreme Court in Commonwealth v. Devlin, supra, does not hold otherwise. There, the evidence established only that a crime had occurred some time within a fourteen month period. This, the Court held, was insufficient to satisfy the requirements of due process. The Supreme Court observed, however, that it would not “enunciate the exact degree of specificity in the proof of the date of a crime which will be required or the amount of latitude which will be acceptable. Certainly the Commonwealth need not always prove a single specific date of the crime. Any leeway permissible would vary with the nature of the crime and the age and condition of the victim, balanced against the rights of the accused.” Id. 460 Pa. at 516, 333 A.2d at 892 (footnote and citations omitted) (emphasis supplied). Where, as here, the victim was a child, the crime had been repeated frequently over a lengthy period, and the Commonwealth’s evidence was sufficient to establish specific dates on several occasions, the convictions will be sustained.

Appellant also contends that the trial court committed error by permitting Wanda to testify that appellant had engaged in sexual intercourse with her on dates prior to those charged in the amended informations. The amended informations charged appellant with rape, statutory rape and corruption of a minor “on or about January 1, 1980 and on divers dates thereafter up to and including September 30, 1980.” Wanda testified at trial that appellant had first engaged in sexual intercourse with her in January of 1978 and had continued to do so until September of 1980. Appellant’s argument that it was error to permit testimony concerning acts which antedated those charged in the information is without merit.

“It is well settled in Pennsylvania that evidence of criminal activity not charged in the indictment or information on which the defendant is being tried cannot be introduced at trial except in certain limited circumstances. Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976); Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975); Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955).” Commonwealth v. Fuller, 479 Pa. 353, 357, 388 A.2d 693, 694-695 (1978). Accord: Commonwealth v. Martinez, 301 Pa.Super. 121, 124, 447 A.2d 272, 273 (1982); Commonwealth v. Lee, 297 Pa.Super. 216, 219-220, 443 A.2d 804, 805 (1982); Commonwealth v. Niemetz, supra 282 Pa.Super. at 443-444, 422 A.2d at 1375. “ ‘The purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectively to strip him of the presumption of innocence.’ ” Commonwealth v. Spruill, 480 Pa. 601, 604-605, 391 A.2d 1048, 1049-1050 (1978) quoting Commonwealth v. Terry, 462 Pa. 595, 599-600, 342 A.2d 92, 94-95 (1975) (emphasis supplied). Accord: Commonwealth v. Styles, 494 Pa. 524, 527, 431 A.2d 978, 980 (1981); Commonwealth v. Lee, supra 297 Pa.Super. at 220, 443 A.2d at 805-806.

In the instant case, Wanda’s testimony concerning appellant’s ruse and the acts of intercourse occurring thereafter in 1978 and 1979 did not introduce evidence of “other crimes.” Her testimony, rather, was evidence of part of one and the same transaction, a natural development of the facts surrounding the offenses for which appellant was being tried. This is an exception to the general rule. “In Commonwealth v. Williams, 307 Pa. 134, 160 A. 602 (1932), [the Supreme Court] spelled out [the “same transaction”] exception, saying that such evidence is admissible where ‘[the] prior ... criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the natural development of the facts.’ ” Commonwealth v. Davenport, 286 Pa.Super. 212, 215, 428 A.2d 647, 649 (1981) quoting Commonwealth v. Brown, 462 Pa. 578, 590-591, 342 A.2d 84, 90 (1975) (emphasis in original). Accord: Commonwealth v. Ross, 413 Pa. 35, 40, 195 A.2d 81, 83 (1963); Commonwealth v. Lee, supra 297 Pa.Super. at 226-227, 443 A.2d at 809; Commonwealth v. Stufflet, 276 Pa.Super. 120, 125, 419 A.2d 124, 127 (1980); Commonwealth v. Stevens, 237 Pa.Super. 457, 463, 352 A.2d 509, 512 (1975). Pursuant to this exception, the evidence of intercourse prior to 1980 was properly received.

The judgments of sentence are affirmed.

      . 18 Pa.C.S. § 3122.

      . ' 18 Pa.C.S. § 6301.

      . At the time of trial in April of 1981 Wanda, born on January 25, 1967, was fourteen years of age.

      . We note, moreover, that appellant at no time requested a bill of particulars or challenged the sufficiency of the informations filed against him. See and compare: Commonwealth v. Devlin, supra; Commonwealth v. Niemetz, supra; Commonwealth v. Speicher, supra; Commonwealth v. Yon, supra.

        . The trial court granted appellant’s demurrer to the charge of forceable rape at the close of the Commonwealth’s case.

      . The original bills of information charged appellant with rape, statutory rape, indecent assault and corruption of a minor and alleged that the acts of intercourse took place from 1977 through September of 1980. The indecent assault charge was dismissed and the Commonwealth was permitted to amend the informations after Wanda testified at the preliminary hearing that appellant had first engaged in sexual intercourse with her in January of 1980. At trial Wanda testified .that she had changed her testimony at the preliminary hearing because her mother was in the courtroom and she did not wish to cause her mother additional anguish by revealing just how long the sexual relations between herself and appellant had gone on.


author: JOHNSON, Judge:

text:
    462 A.2d 843
    Linda HALL, Appellant, v. Curtis MASON. COMMONWEALTH of Pennsylvania ex rel. Curtis MASON, Jr., a Minor Child, By and Through his natural father, Curtis MASON, v. Linda HALL, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1983.
    Filed July 8, 1983.

      George A. Brutscher, Kennett Square, for appellant.
    William J. Litvin, West Chester, for appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

The instant consolidated appeals arise from the trial court’s order awarding custody of Curtis Mason, Jr. to his father, Curtis Mason.

The child’s parents were married in 1973 and the child was born February 22, 1975. Following an extended period of marital difficulties, Curtis Mason left the marital household in August of 1978 and shortly thereafter took up residence with Paula Gessner and one of her children. Linda Hall took up residence with Harvey Hall, whom she married in February of 1979, following her divorce from Curtis Mason in October of 1978. On September 11, 1979, Linda Hall filed a petition seeking confirmation of custody of Curtis, Jr., who had been residing with her throughout this period along with Harvey Hall and a child of their marriage. Curtis Mason filed his petition to obtain custody on November 8, 1979.

Following five days of hearings, the trial court awarded custody of the child to Curtis Mason with visitation rights to Linda Hall. After denial of Linda Hall’s exceptions, this appeal followed.

The primary concern in child custody cases is the best interests of the child, including the child’s physical, intellectual, emotional, moral and spiritual well-being. Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972); In re Custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982). In a contest between parents, each party has the burden of proving that the best interests of the child will be served by awarding custody to him or her. In re Custody of J.S.S., supra; Beichner v. Beichner, 294 Pa.Super. 36, 439 A.2d 737 (1982).

It is clear that the scope of our review in custody cases is of the broadest type. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 447 A.2d 630 (1982). However, we cannot nullify or usurp the fact-finding function of the trial court, as the trial court is in a superior position to appraise the attitudes, sincerity, credibility and demeanor of the witnesses. Commonwealth ex rel. Montgomery v. Montgomery, 296 Pa.Super. 325, 442 A.2d 791 (1982), citing Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa.Super. 444, 427 A.2d 1370 (1981). Although we must defer to the trial court’s findings of fact, we are not bound by the trial court’s deductions and inferences. Commonwealth ex rel. Newcomer v. King, supra. Instead, we must exercise independent judgment based on the evidence and make such an order on the merits of the case as to do right and justice. Id. In exercising our independent judgment, we are not limited to determining whether the trial court abused its discretion in formulating its custody order. See Robert H.H. v. May L.H., 293 Pa.Super. 431, 439 A.2d 187 (1981). Adherence to an abuse of discretion standard would defeat the purpose of our exercising independent judgment. Id.

So as to facilitate this broad review, we consistently emphasize that the trial court must provide us with a complete record and a comprehensive opinion containing a thorough analysis of the record and specific reasons for the court’s ultimate decision. In re Custody of J.S.S., supra; Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979).

The evidence at trial was conflicting concerning the fitness of each parent. Basically, each parent’s testimony denigrated the other’s character and fitness. Upon a review of the entire record, we find that sufficient evidence was presented in order for a proper determination to have been made. In addition to the parties and their character witnesses, each party had the child tested and evaluated by a psychologist.

The evidence indicated that both homes enjoyed sufficient income and space to adequately care for the child. Concerning Linda and Harvey Hall, the evidence indicated that: (1) Linda Hall had made obscene telephone calls to Curtis Mason on a regular basis and that the child was present with her on at least one occasion, (2) Linda Hall often used obscene, vulgar and abusive language towards the child, (3) because of instructions from Linda and Harvey Hall, the child was fearful of returning from visits with his father in clothing other than that in which he had arrived, (4) Linda Hall engaged in an ongoing vilification of Curtis Mason, telling the child, inter alia, that his father was a drunk, smoked marijuana, was a liar and did not love the child, (5) Linda Hall told the child that his father was the cause of their separation, (6) Linda Hall referred to Paula Gessner as, inter alia, a whore, in front of the child, (7) Linda Hall told the child that Harvey Hall was his father, not Curtis Mason, (8) Linda Hall lacked emotional stability, as indicated by her suicide attempts, as well as her vilification of Curtis Mason, (9) the Hall’s lacked diligence in caring for the child by rising late in the day and relegating the child to watching television until they arose, (10) Linda Hall lacked diligence in preparing the child for pre-school, resulting in his often missing the bus, (11) Harvey Hall engaged in inappropriate games with the child, including spitting and passing gas, and (12) Linda and Harvey Hall engaged in inappropriate discipline of the child, including violent handling of the child.

The evidence also indicated that Curtis Mason was a dedicated and loving parent and that Paula Gessner was an extremely caring and competent member of Curtis Mason’s household. In all, the trial court resolved the issues of credibility against Linda Hall in regard to her denials of the negative evidence of her character and in regard to her negative evidence concerning Curtis Mason. Upon a complete review of the record, we agree that this resolution was proper.

The child was also evaluated by a psychologist representing each of the parties. They concurred that the child was of average intelligence, well-adjusted, outgoing and adaptable. As to preference, the child answered differently to each psychologist concerning where he would like to live.

Linda Hall’s psychologist recommended that unless there was a serious danger requiring removal of the child from his mother’s custody, such a change would not be in his best interests. He also stated his belief that transfers of child custody should be avoided whenever possible. Furthermore, he recommended that the natural father’s role should be secondary if custody were to remain with Linda and Harvey Hall.

The psychologist testifying for Curtis Mason recommended that should Curtis and Paula Gessner be better able to provide for the child than Linda and Harvey Hall, then custody should be awarded to Curtis and Paula. He also stated that a change in custody would not be detrimental to the child in the instant case.

We disagree with Linda Hall that the trial court based its award on past conduct. Clearly, a parent’s ability to care for a child must be determined as of the time of the custody hearing, not as of an earlier time. In re Custody of Frank, 283 Pa.Super. 229, 423 A.2d 1229 (1980). However, the trial court made every effort to avoid basing its decision on past conduct. For example, Linda Hall’s poor past performance as a housekeeper was not given weight.

Concerning the expert testimony, we find it to be inconclusive concerning custody, as each psychologist based his determination on the assumption that the parents were, in fact, of proper character and fitness. We further note that Linda Hall’s psychologist did not interview Harvey Hall and therefore was unable to give a valid opinion as to the child’s environment when Harvey Hall is included.

Linda Hall further argues that the child should not be uprooted in the absence of substantial and compelling reasons. McCourt v. Meyers, 268 Pa.Super. 152, 407 A.2d 875 (1979). Although the continued residence of a child with one parent may be a controlling factor in a child custody proceeding, Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981), we believe that the evidence when read as a whole supports the trial court’s conclusion that the best interests of the child will be served by awarding custody to Curtis Mason, the natural father.

We find Linda Hall’s arguments concerning the child’s preference meritless in view of the child’s modulations concerning his preference and his age at the time of trial. See Parks v. Parks, 284 Pa.Super. 400, 426 A.2d 108 (1981). Also, we find no support for her allegation that she should retain custody simply because of the policy that siblings should be raised together. See Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980).

Finally, Linda Hall alleges that the factor of Curtis Mason’s meretricious relationship with Paula Gessner should tip the weight of the evidence in favor of custody to her. The only relevance a nonmarital relationship has in a custody dispute is its effect of that relationship on the child; if evidence shows that the parent’s conduct does not adversely affect the child, then the best interests of the child may dictate that custody be given to that parent. In re Donna W., 284 Pa.Super. 338, 425 A.2d 1132 (1981). The trial court determined that this relationship was not harmful to the child, and our review reveals the same result. Therefore, the issue is without merit.

The order is affirmed.

SPAETH, J., concurs in the result.

      . We recognize that this question of the scope of review in custody cases remains pending before our court in the case of In re Williams, No. 674 Pittsburgh, 1981, argued before this court en banc on May 10, 1983. However, the exercise of a different scope of review in this case would not affect the result.

      . This writer has previously stated that “[w]hen the hearing judge fully complies with these requirements [regarding the furnishing of a complete record, a comprehensive opinion and a thorough analysis], his decision is not reversed unless he has abused his discretion.” In re Custody of J.S.S., 298 Pa.Super. at 432, 444 A.2d at 1252-53. This statement was made with the view that where the trial judge complies with these requirements, he is unlikely to have abused his discretion. See Boland v. Lesko, 308 Pa.Super. 169, 175 n. 2, 454 A.2d 75, 77-8 n. 2 (1982).
      However, upon further reflection, I now conclude that our duty in custody cases obliges us to go beyond the abuse of discretion standard in reviewing such cases. See e.g. Commonwealth ex rel. Newcomer v. King, supra; L.D. v. B.D., 291 Pa.Super. 589, 436 A.2d 657 (1981); Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa.Super. 444, 427 A.2d 1370 (1981) (Concurring opinion by HOFFMAN, J.).


author: POPOVICH, Judge:

text:
    462 A.2d 847
    COMMONWEALTH of Pennsylvania v. Larry D. JENKINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 27, 1983.
    Filed July 8, 1983.

      Murrel R. Walters, III, Mechanicsburg, for appellant.
    John Michael Eakin, Assistant District Attorney, Carlisle, for Com., appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an Order of the Court of Common Pleas of Cumberland Court (per Judge Sheely) denying appellant’s, Larry D. Jenkin’s, Post-Conviction Hearing Act (PCHA) Petition. 19 P.S. § 1180-1 et seq., as amended; reenacted as 42 Pa.C.S.A. §§ 9541-9551. We affirm.

The sole contention raised by the appellant on appeal concerns “[w]hether the Bill of Information dated November 16, 1977, filed against [him], and signed by Assistant District Attorney J. Michael Eakin, was void ab initio because it was not signed by the District Attorney?” (Appellant’s Brief at 3)

The facts reveal the following: By a complaint dated October 14, 1977, appellant was charged with the attempted murder of Sergeant John Durham, a guard at the State Correctional Institution in Lower Allen Township, Cumberland County, Pennsylvania. Appellant was accused of taking an electrical cord with a slip knot on one end and putting it around the neck of Sergeant Durham and attempting to cause his death in “J” Ward of the State Correctional Institution at Camp Hill. Counsel, C. Roy Weidner, Jr., of the law firm of Myers, Myers, Flower and Johnson, was appointed by the court to represent the appellant. After a preliminary hearing, a prima facie case was found and an Information was filed on November 16, 1977, and signed by Assistant District Attorney J. Michael Eakin.

The only pre-trial matters filed by appellant’s counsel consisted of an “Application: For Continuance” so that appellant could receive psychiatric evaluation to determine his competency to stand trial. The Application was granted and appellant was found competent. Following a trial by jury, in which appellant was adjudged guilty as charged, post-trial motions were filed and denied by a court en banc. An appeal from the judgment of sentence was affirmed by this Court in Commonwealth v. Jenkins, 271 Pa.Super. 614, 419 A.2d 198 (1979), and a petition for allowance of appeal was denied by the Pennsylvania Supreme Court on October 22, 1979 [No. 4499 Allocatur Docket, Eastern District]. During all stages of the litigation, Attorney Weidner remained appellant’s counsel.

On September 3, 1980, appellant filed a pro se PCHA petition requesting the appointment of counsel and alleging:

The Bill of information which was lodged against [him] was invalid in ... [that] the District Attorney for the Commonwealth signature was not present on said bill of information (813), in place of the District Attorney’s signature was the Assistant District Attorney’s signature which made the information invalid and petitioner shouldn’t have been tried, convicted and sentence [sic].
(PCHA Petition at 3)

In an Opinion authored by Judge Sheely, appellant’s request for relief, as well as the assistance of counsel, was denied. However, by Order dated March 13, 1981, Judge Sheely altered his initial position and appointed Attorney Murrell R. Walters, III, to aid the appellant in filing an amended PCHA petition. See Commonwealth v. Goodman, 269 Pa.Super. 80, 409 A.2d 73 (1979). This turn of events prompted the Commonwealth to petition this Court to remand the appeal appellant had taken from the denial of his PCHA petition, given Judge Sheely’s March 13, 1981 Order. The Commonwealth’s petition was granted and an amended PCHA petition was submitted by Attorney Walters alleging, under the rubric of ineffectiveness of prior counsel, that, inter alia,

1) Counsel failed to object to the fact that the bill of information charging Petitionerf-appellant] with Criminal Attempt (Homicide) was defective in that it was not signed by the District Attorney____ (Appellant’s “Supplement To Post Conviction Hearing Petition,” Record No. 33)

A PCHA hearing was held on October 29, 1981 in which it was undisputed that the Information lodged against the appellant was signed by the Assistant District Attorney, J. Michael Eakin, rather than the District Attorney of Cumberland County, Edgar Bayley. Additionally, the Commonwealth produced, in the form of its Exhibit # 1, a true copy of a document filed with the Clerk of Courts of Cumberland County on January 13, 1977. It reads in pertinent part:

Pursuant to Act 142, July 9, 1976 (The Judicial Code), Section 8931 et. [sic] seq., I, Edgar B. Bayley, District Attorney of Cumberland County, Pennsylvania, hereby grant to the following named Assistant District Attorneys authority to act for me under Section 8931, et. [sic] seq. as provided for in sub-section (i):
George E. Hoffer, 1st Assistant District Attorney Kevin A. Hess, Deputy District Attorney J. Michael Eakin, Assistant District Attorney
/s/Edgar E. Bayley Edgar B. Bayley
Sworn to and subscribed before me this 13th day of January, 1977.
/s/Audrey G. Adams Notary Public

By Opinion and Order of court dated March 4, 1982, appellant’s PCHA petition was denied. This appeal followed and appellant, still represented by Attorney Walters, narrowed his ground for relief to the invalidity of the Information signed by an assistant district attorney of Cumberland County vis-a-vis the district attorney.

Before addressing the issue at hand, we find it appropriate to note that, procedurally, the question at bar has not been “finally litigated” since the merits of the claim have not been ruled upon by either this Court or the Pennsylvania Supreme Court. See Commonwealth v. Hobson, 286 Pa.Super. 271, 428 A.2d 987 (1981). Also, it needs to be said that despite the fact that the issue was not raised previously (at post-trial or on appeal) does not render it “waived,” since appellant was represented at that time by trial counsel. “[A]s has often been recognized and specifically noted, it is unrealistic to expect trial counsel to argue his own ineffectiveness, whether it be in post-trial motions or on appeal.” (Footnote omitted) (Citations omitted) Commonwealth v. Cooke, 288 Pa.Super. 205, 208, 431 A.2d 360, 362 (1981). Therefore, the PCHA level being the first occasion on which appellant was represented by counsel other than the one whose stewardship is being questioned, we cannot fault him for failing to raise the issue sooner— e.g., on the prior appeals to this Court and the Pennsylvania Supreme Court. See Commonwealth v. Cooke, supra.

Appellant’s rationale in support of his argument that the Information signed by an assistant district attorney (designated by the district attorney to act in his stead) renders it void ab initio, is premised upon the fact that, at the time the Information was signed (on November 16, 1977), “the applicable law concerning the signing of such [Information] was 17 P.S. § 274. (Act 238, October 10, 1974).”—repealed by the Judiciary Act Repealer Act of 1978, Act 1978, April 28, P.L. 202, No. 53, § 2(a)[1469], effective June 27, 1978; substantially reenacted at 42 Pa.C.S.A. § 8931(e) (1982). Section 274 provided:

Disposition of Cases—The district attorney or the special attorney appointed by the attorney general in the manner provided by law shall sign all informations. The information shall be filed in such form as the rules of criminal procedure provide.

Additionally, appellant points out that Pa.R.Crim.P. 225(b), which likewise was in effect when the Information was prepared instantly, reads, “The information shall be signed by the attorney for the Commonwealth____”

Appellant concedes that 42 Pa.C.S.A. § 8931(e) & (i) authorizes an assistant district attorney who has been “designated” by the district attorney, where such “designation” is in writing and filed with the clerk of courts of the appropriate county, to “sign all informations.” However, he urges that because “[t]he effective date of 42 Pa.C.S.A. § 8931 was June 27, 1978[, u]ntil that date the prior law, 17 P.S. § 274 remained in effect____ Consequently, there was no authorization by statute, rule or case law to permit an assistant district attorney to sign a Bill of Information on November 16, 1977.” (Appellant’s Brief at 7)

Appellant cites Commonwealth v. Belcher, 258 Pa.Super. 153, 392 A.2d 730 (1978) and Commonwealth v. Emanuel, 285 Pa.Super. 594, 428 A.2d 204 (1981) in support of his position that the “signature” of an assistant district attorney does not satisfy the requirements of 17 P.S. § 274 and Pa.R.Crim.P. 225(b). In Belcher, the Court was confronted with an Information that bore no signature whatsoever. Neither initials nor a stamped facsimile was applied; the signature line was completely blank. The Court held that the Information was void ab initio since an unsigned Information gives no indication that anyone evaluated the propriety of instituting the criminal proceedings. Belcher also held that a signed Information was mandatory and not merely directory. The persuasiveness of the Belcher decision has been rendered ineffectual by this Court’s recent holding in Commonwealth v. Veneri, 306 Pa.Super. 396, 452 A.2d 784 (1982) to the extent that an unsigned Information is voidable, not void, and the issue is considered waived if not raised in a pre-trial motion.

As for the Emanuel case, the Veneri Court agreed with that decision “to the extent that a mere rubber stamp facsimile of the district attorney’s signature does not satisfy the requirements of Pa.R.Crim.P. 225(b).” Commonwealth v. March, 308 Pa.Super. 343, 346, 454 A.2d 567, 569 (1982).

In the case at bar, unlike in Belcher and Emanuel, we do have a “signature,” albeit it is that of an assistant district attorney as compared to that of the district attorney. As such, we find that the concerns first voiced by this Court in Belcher, and later reaffirmed by our Supreme Court in Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981), have been placated, i.e., “the signature of the district attorney (or his designee) on an information is required to guarantee the information’s authenticity and to ensure that a reasoned evaluation of the advisability of instituting a criminal action has been made by a responsible person.” Commonwealth v. Levenson, 282 Pa.Super. 406, 410, 422 A.2d 1355, 1358 (1980). We find that these purposes were satisfied here when Assistant District Attorney J. Michael Eakin signed his name to the Information, id., notwithstanding the fact that a “literal” compliance with 17 P.S. § 274 and Pa.R.Crim.P. 225(b) was not accomplished. To hold otherwise, would place form over substance. This we will not do. Cf. Commonwealth v. Turner, 309 Pa.Super. 330, 332-33, 455 A.2d 185, 186 (1983) (“To assess counsel’s competency in 1976[, regarding his failure to challenge the validity of an Information which bore only a rubber-stamped facsimile of the district attorney’s signature,] in light of an appellate decision announced in 1981[—Commonwealth v. Emanuel, supra—]would be to ‘impose upon trial counsel the qualities of a seer____’ Commonwealth v. Triplett, 476 Pa. 83, 89, 381 A.2d 877, 881 (1977). We will not hold counsel ineffective for failing to foresee changes in the law. [Citations omitted].”); Commonwealth v. Warren, 307 Pa.Super. 221, 453 A.2d 5 (1982) (semble); Commonwealth v. Morris, 267 Pa.Super. 379, 382 n. 4, 406 A.2d 1091, 1093 n. 4 (1979) (“Appellant ... argues that the [November, 1977] informations were defective because they were signed by an assistant district attorney, instead of by the district attorney himself____ [T]h[is] argument [is] patently frivolous and do[es] not warrant discussion.”).

Since we find that the sole issue raised by the appellant is without merit, and not warranting the relief requested, we affirm the Order of the PCHA court denying appellant’s petition.

      . We note with interest that in Commonwealth v. Levenson, supra, the Information complained of was the product of a series of events occurring on November 16, 1976, yet the Court (per Judge Spaeth) still made specific mention of 42 Pa.C.S.A. § 8931(e) & (i) as impacting upon a determination that the Information was valid.

      . It needs to be mentioned that Commonwealth v. Venen, supra, specifically found that failure to comply with the signature requirement of Pa.R.Crim.P. 225(b) was not so significant a breach as to justify the extreme remedy of discharge. Commonwealth v. Turner, 309 Pa.Super. 330, 455 A.2d 185 (1983).


text:
    462 A.2d 851
    In re Involuntary Termination of Parental Rights to B.L. and J.L. Appeal of R.P.L. and M.I.L., Husband and Wife.
    Superior Court of Pennsylvania.
    Submitted April 26, 1983.
    Filed July 8, 1983.
    Murrel R. Walters, III, Mechanicsburg, for appellants.

      Ruby D. Weeks, Carlisle, for Children & Youth, participating party.
    Ruth Duncan O’Brien, Carlisle, for B.J.L., et al., participating parties.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a final decree entered by the Court of Common Pleas of Cumberland County in which the parental rights of R.P.L. and M.B.L., the natural mother and father of B.L. and J.L., were terminated involuntarily. We reverse and remand the matter for the reasons herein stated.

The order which forms the basis of the instant appeal was entered on July 14, 1982, approximately four months after the United States Supreme Court’s decision in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In Santosky, the Supreme Court held that involuntary termination proceedings are governed by a “clear and convincing evidence” standard of proof, because “such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process.” Id. at 769, 102 S.Ct. at 1402-3, 71 L.Ed.2d at 617.

More recently, this Court has stated that the Santosky decision applies “to all cases in which appeals had not been exhausted at the time the Santosky decision was rendered.”

In re: Adoption of M.E.T., Appeal of: M.E.T.G., 313 Pa.Super. 316, 318, 459 A.2d 1247, 1249 (1983).

Although the termination order in the instant case was entered after the date of the Santosky decision, the evidentiary hearings conducted at the trial were held on January 15th, January 22nd, and February 2nd of 1982, prior to that decision. Additionally, the trial court’s extensive seventeen page opinion makes no mention of the standard of proof which it applied in examining the evidence presented. As a result, this case is controlled by a recent case of this Court where we remanded because “it is impossible for us to determine if the correct standard, clear and convincing evidence, was applied in this case.” In re: Involuntary Termination of Parental Rights to Scott and Tommy, 315 Pa.Super. 144, 146, 461 A.2d 838, 839 (1983). Instead of engaging in an independent review of the record, it is our view that a remand is the better practice particularly where the trial court has terminated parental rights “so that the trier-of-fact, who had an[ ] opportunity to observe the witnesses and their demeanor, can re-evaluate the evidence in light of the new evidentiary standard.” Appeal of G.J.A., 304 Pa.Super. 21, 27 n. 5, 450 A.2d 80, 83 n. 5 (1982).

In the event that the trial court determines that new evidentiary hearings are necessary, then those hearings should be scheduled. On the other hand, “if the court concludes that new evidentiary hearings are not required, it need only reconsider its prior findings in light of the clear and convincing standard and modify those finds as necessary.” In re: Involuntary Termination of Parental Rights to Scott and Tommy, 315 Pa.Super. at 146-47, 461 A.2d at 839.

The matter is remanded for further proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . The trial court entered its termination order pursuant to "Local Orphans Court Rule 31.1 adopted August 6, 1980, which provides inter alia ‘All decrees entered in the Orphans’ Court shall be final decrees.’ ” "ORDER OF COURT" dated July 14, 1982. Because no rule of the Orphans Court of Common Pleas of Cumberland County required exceptions to be taken to adoption decrees, appellants’ failure to file exceptions does not constitute a waiver of the issues raised on appeal. See In re Adoption of R.W.B., 485 Pa. 168, 171 n. 1, 401 A.2d 347, 348 n. 1 (1979). It appears that Rule 31.1 was adopted in order to cure the defect in the record which necessitated a remand because a final decree had not been entered. See In re Involuntary Termination of Parental Rights to B.M.D. and R.L.D., 487 Pa. 387, 389 n.1, 409 A.2d 404, 405 n. 1 (1979).

      . Where a review of the record “convinces us that even the lower standard of preponderance of the evidence had not been satisfied”, the matter will not be remanded, and the termination petition will be denied. See In re: Adoption of M.E.T., Appeal of: M.E.T.G., 313 Pa.Super. at 323, n. 5, 459 A.2d at 1251 n. 5.


author: PER CURIAM:

text:
    462 A.2d 853
    COMMONWEALTH of Pennsylvania v. Stephen James MURPHY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1983.
    Filed July 8, 1983.

      Joseph P. Green, Jr., Assistant Public Defender, West Chester, for appellant.
    Stuart Suss, Assistant District Attorney, West Chester, for Com., appellee.
    Before HESTER, MONTEMURO and POPOVICH, JJ.
   PER CURIAM:

On December 19, 1979, a jury found appellant, Stephen James Murphy, guilty of aggravated assault, simple assault, retaliation against a witness or informant, and criminal conspiracy. Post-trial motions were filed and denied. On April 21, 1981, appellant was sentenced on the charge of aggravated assault to pay a fine of $50.00 plus the costs of prosecution and be incarcerated for a period of not less than four months nor more than twelve months. On all of the other charges, appellant was placed on probation for concurrent one year periods, consecutive to the prison terms imposed. A petition to modify sentence was filed on April 30, 1981. A rule to show cause issued on the petition and a hearing was scheduled for July 15, 1981. On May 13, 1981, appellant filed a notice of appeal to this Court from the judgment of sentence imposed on April 21. We remand this case for further proceedings because the issue of ineffectiveness of trial counsel is raised by appellate counsel from the same public defender office as trial counsel.

Appellant raises four questions on this appeal. They include:

I. Whether the trial court erred in refusing to grant defendant’s request for a mistrial after the prosecutor made improper refeence during closing argument to matters outside the facts and evidence presented at trial?
II. Whether trial counsel was ineffective in failing to object to the prosecutor’s statement during closing argument that the defendant had a vital interest in the outcome of the case?
III. Whether the trial court erred in refusing to grant defendant’s request for a mistrial after testimony pertaining to prior convictions of the defendant had been solicited by the prosecutor?
IV. Whether the evidence and testimony presented at trial were sufficient to establish the crimes charged beyond a reasonable doubt?

Appellant’s first, third and fourth contentions of error were adequately addressed by the lower court in its opinion of April 27, 1982, and we need not comment on them any further.

Appellant’s second contention, which alleges ineffective assistance of counsel, was not raised in post-trial motions, but was raised in a subsequently filed brief in support of post-trial motions. Normally, issues not raised in post-verdict motions are not preserved for appellate review. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979). However, rather than hold that the ineffectiveness issue is waived, we remand this case to the trial court in order that independent counsel can be appointed. Both at trial and on this appeal appellant has been represented by the public defender office of Chester County. “[W]hen an appellant so represented on appeal alleges ineffective assistance of trial counsel, the proper course, unless ineffective assistance clearly appears, is to remand for appointment of new counsel not associated with trial counsel. See e.g., Commonwealth v. Patrick, 477 Pa. 284, 383 A.2d 935 (1978); Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Wright, 473 Pa. 395, 374 A.2d 1272 (1977).” Commonwealth v. Cooke, 288 Pa.Super. 205, 210, 431 A.2d 360, 363 (1981). When appellant is represented on appeal by counsel from the same office which represented him at trial, “it cannot ‘be assumed that appellate counsel will provide the zealous advocacy to which an appellant is entitled.’ ” Commonwealth v. Patrick, supra 477 Pa. at 287, 383 A.2d at 936.

“The rule ... is that ineffectiveness of prior counsel must be raised as an issue at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant. It follows then that when newly appointed post-trial counsel fails to assign the ineffectiveness of trial counsel as a ground for post-trial relief, the issue of trial counsel’s ineffectiveness is not properly preserved for appellate review.” Commonwealth v. Hubbard, 472 Pa. 259, 277 n. 6, 372 A.2d 687, 695 n. 6 (1977).

Although the ineffectiveness claim was not properly preserved for our review, we cannot reject the claim without allowing appellant the opportunity, if he desires, to select new counsel who is unassociated with the public defender office. If eligible, appellant may instead request the court to appoint new counsel for this purpose. Commonwealth v. Roach, 268 Pa.Super. 340, 408 A.2d 495 (1979). Furthermore, in the interest of judicial economy, we direct that after new counsel is obtained, the lower court shall conduct a hearing on all claims of trial counsel’s ineffectiveness and render a decision thereon. Any party aggrieved by the lower court’s order may then file a new appeal to this court challenging the lower court’s determination. See Commonwealth v. Jellots, 277 Pa.Super. 358, 363, 419 A.2d 1184, 1187 (1980), cf., Commonwealth v. Lennox, 270 Pa.Super. 254, 411 A.2d 514 (1979); appeal after remand, 286 Pa.Super. 41, 428 A.2d 228 (1981).

One further issue must be dealt with. Appellant was sentenced to one year probation on the charge of simple assault, and was also sentenced to a term of imprisonment for aggravated assault. In imposing this sentence, the lower court failed to apply the doctrine of merger.

“Applying the doctrine of merger, we find that simple assault merges into both aggravated assault and recklessly endangering another person. Simple assault is defined as conduct by which one ‘attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.’ 18 Pa.C.S. § 2701(a)(1). The elements of this offense are necessarily included in the crime of aggravated assault, which is defined as conduct by which one ‘attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life,’ 18 Pa.C.S. § 2702(a)(1)____” Commonwealth v. Cavanaugh, 278 Pa.Super. 542, 546, 420 A.2d 674, 676 (1980).

Despite the lower court’s error in sentencing appellant for simple assault, we believe a remand for resentencing is not necessary. The court fined appellant and sentenced him to a term of imprisonment for aggravated assault. On all of the other charges, appellant was sentenced to concurrent one year periods of probation. Under these circumstances, it is clear that a remand for resentencing would not result in any change of sentence. See Cavanaugh, supra. Therefore, we vacate the judgment of sentence as to the lesser included offense of simple assault.

Insofar as appellant should be given the opportunity to select independent counsel, we remand for further proceedings consistent with this opinion. Judgment of sentence on the charge of simple assault is vacated. Jurisdiction is not retained.

      . 18 Pa.C.S. § 2702.

      . 18 Pa.C.S. § 2701.

      . 18 Pa.C.S. § 4908.

      . 18 Pa.C.S. § 903.

      . There is no indication in the record that a hearing was held on the petition to modify sentence or that the trial court ruled on the petition.

      . Appellant’s present counsel argues that a remand is unnecessary because the assertion of ineffective trial counsel was made by another assistant public defender who commenced representation of appellant after trial counsel had resigned from the public defender’s office. A similar, if not stronger, argument was rejected by our Supreme Court in Commonwealth v. Wright, supra, where the attorney representing appellant on appeal had started working in the public defender office only after prior counsel had left the office.

      . The appellant has the option to retain present counsel. Before doing so, however, he would have to be made aware of the dangers and possible disadvantages of proceeding with an attorney associated with counsel he asserts is ineffective. Commonwealth v. Quarles, 284 Pa.Super. 473 n. **, 426 A.2d 145, 146 n. ** (1981); accord, Commonwealth v. Jackson, 280 Pa.Super. 522, 421 A.2d 845 (1980).


text:
    462 A.2d 855
    COMMONWEALTH of Pennsylvania v. Rose Marie GAERTTNER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 20, 1982.
    Filed July 8, 1983.

      John Bozza, Erie, for appellant.
    Paul J. Susko, Assistant District Attorney, Erie, for Com., appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   PER CURIAM:

Appellant was arrested and charged with tampering with witnesses and informants and criminal conspiracy. On September 12, 1980, following a jury trial in the Court of Common Pleas of Erie County, appellant was found guilty on both counts. Timely post-verdict motions were filed and denied. Appellant was thereafter sentenced to a period of not less than one (1) nor more than two (2) years. This sentence was to be concurrent with a sentence she received from a conviction by a jury on June 20, 1980, of two counts of hindering apprehension or prosecution.

From the judgment of sentence, appellant brings this appeal. Appellant raises three issues: 1) whether appellant’s trial subjected her to double jeopardy based upon a previous trial and conviction on June 18-20, 1980; 2) whether the evidence was sufficient to support the verdict; and 3) whether the Commonwealth established a prima facie case against appellant at the preliminary hearing.

The facts are as follows:

On June 18-20, 1980, appellant was tried and convicted of two counts of hindering apprehension or prosecution. Evidence at this trial demonstrated that appellant had removed from her residence approximately seventy-five (75) to one hundred (100) photographs of children in nude or sexually explicit poses. On February 15, 1980, she requested William Robson, Faith Robson, and Tina McCarter to accompany her to her house where she obtained the package of photographs. These photographs were to be used in the prosecution of her husband, Donald, for the alleged corruption of minors and sexual abuse of children. These charges had been brought against appellant’s husband on January 28, 1980 and February 5, 1980.

Appellant then proceeded to the Robson’s residence where the photographs were destroyed by burning and cutting into pieces. The witnesses at the Robson’s home later identified two of the children, one age eleven (11) and another age thirteen (13), who appeared either nude or in sexually explicit poses in the photographs. Following the destruction of the photographs, appellant stated to one Cheryl Start, that “Donny (appellant’s husband) said she had to get rid of the pictures, and she (appellant) didn’t want the police or Children’s Services to find them.” Also, when Ada Robson, another witness, advised appellant that she was calling the police, appellant specifically directed her not to do so.

Regarding appellant’s conviction on September 12, 1980, which is the subject of this appeal, the Commonwealth’s evidence dealt again with the securing of the photographs at appellant’s residence on February 15, 1980, and their subsequent destruction at the Robson’s residence. In fact, all six (6) witnesses who either testified or whose testimony was stipulated to, also testified at appellant’s June trial.

Appellant first contends that her September 11-12, 1980 trial subjected her to double jeopardy. We will first consider whether appellant has waived this issue. Appellee and the lower court postulate that appellant waived her double jeopardy appeal by not raising this issue until the filing of her amended post-trial motions. However, the record leads to a different conclusion.

At side bar, immediately following the start of trial, appellant’s counsel stated:

“At this time the defense would like to place on the record its concern that the charge of tampering with witnesses or infeirmants, as outlined in information number five-eighty nine, involves the same facts and the same evidence that were introduced in a previous trial of the defendant in June of 1980 on charges of hindering apprehension or prosecution. Because the information does not indicate time, date or place with any specificity, and does not indicate witnesses who were tampered with, it is not possible for the defense to determine at this time whether in fact trying the defendant at this time on these charges would constitute double jeopardy and be in violation of the federal constitution, the constitution of the Commonwealth, and the case law that states, particularly Commonwealth v. Campana. So, at this time the defense reserves the right to raise the double jeopardy question at the close of the Commonwealth’s case as well as at the close of the trial.”

It is to be noted that appellant’s counsel did in fact raise the defense of double jeopardy at the conclusion of the Commonwealth’s case and likewise at the time of the court’s charge to the jury. Thus, this is not an instance such as in Commonwealth v. Splain, 242 Pa.Super. 503, 364 A.2d 384 (1976), where the defendant waited until the Commonwealth presented its case before raising the double jeopardy issue. The lower court relied upon Commonwealth v. Carrillo, 483 Pa. 215, 395 A.2d 570 (1978), in support of its position that appellant waived the former jeopardy issue. However, in Carrillo, supra, the court held that appellant had waived certain supplemental post-trial motions because instead of submitting them in motion form, he had submitted them in brief form. Our factual situation is different in that not only did appellant submit her amended post-trial motions in motion form but she also accompanied these motions with a brief. Therefore, we conclude that appellant did not waive the double jeopardy issue.

Regarding the merits of such an issue, our Supreme Court, speaking through (now Chief) Justice Roberts, has stated:

“[A] defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial.” (emphasis in original).

Commonwealth v. Campana, 452 Pa. 233, 247-48, 304 A.2d 432, 438 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973). See also Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974). Our Supreme Court went on to observe:

The commentary to § 1.08 of the Model Penal Code, which bars a second prosecution “based upon the same facts” as that of the first, states that the purpose of the section is to protect defendants from:
“successive prosecutions based upon essentially the same conduct, whether the purpose in so doing is to hedge against the risk of an unsympathetic jury at the first trial, to place a ‘hold’ upon a person after he has been sentenced to imprisonment, or simply to harass by multiplicity of trials.”
The ABA Project on Minimum Standards of Criminal Justice, Standards Relating to Joinder and Severance § 1.3 (Approved Draft, 1968), with specific reference to the Model Penal Code, accords a defendant the right to request joinder of all charges if they are “based on the same conduct or arise from the same criminal episode.” “Episode” is defined as “ ‘an occurrence or connected series of occurrences and developments which may be viewed as distinctive and apart although part of a larger or more comprehensive series.’ ” ABA Standards Relating to Joinder and Severance § 1.3(a) (commentary). As the commentary to the ABA Standards Relating to Joinder and Severance § 1.3(a) states:
“It is the view of the Advisory Committee that, except where the ends of justice would otherwise be defeated, the defendant should not be subjected to multiple trials of related offenses____” (Emphasis supplied).

Id., 452 Pa. at 248, 304 A.2d at 439. See also Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983). The factual bases of appellant’s June 18-20, 1980 trial, and the one that is the subject of this appeal, are clearly the same. Both trials centered upon the destruction of sexually-explicit and nude photographs of two children at the home of Ada Robson on the evening of February 15, 1980. Not only are the offenses for which she was tried founded upon the same facts, but they are similar in character. The charge of tampering with witnesses and informants is as follows: “A person commits an offense if believing that an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a witness or informant to withhold any testimony, information, document or thing except on advice of counsel,” 18 Pa.C.S.A. § 4907(a)(2); hindering apprehension or prosecution is defined: “A person commits an offense if with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence.” 18 Pa.C.S.A. § 5105(a)(3). Therefore, it is clear that the September 12, 1980 trial constituted double jeopardy. Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983).

Appellee argues that the scheduling of the criminal terms in Erie County prohibited the Commonwealth from trying appellant in one proceeding. However, this argument is specious. As the Supreme Court observed in Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981), the Commonwealth could have requested an extension of time to commence both trials on the grounds that it wished to comply with its obligation to consolidate them. Thereupon, the court could have either granted separate trials under 18 Pa.C.S.A. § 110(l)(ii) or permitted the extension. In the event appellant had opposed consolidation, she would then have waived her rights to a single trial. Commonwealth v. Saunders, 483 Pa. 26, 394 A.2d 522 (1978). In that the Commonwealth failed to follow these avenues, its argument is meritless. Commonwealth v. Stewart, supra.

Judgment of sentence reversed.

      . 18 Pa.C.S.A. § 4907(a)(2).

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 5105(a)(3).

      . In light of our disposition, we need not address appellant’s other two issues raised on this appeal.