text:
    659 A.2d 1018
    COMMONWEALTH of Pennsylvania v. James HOWARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 20, 1995.
    Filed May 30, 1995.

      Karl Baker, Asst. Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com.
    Before OLSZEWSKI, POPOVICH and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the judgment of sentence made final by operation of law upon the trial court’s failure to decide appellant’s post-sentencing motion within one hundred and twenty days. The sole issue presented for our review is whether the trial court erred in refusing to suppress the identification and physical evidence seized from appellant. For the reasons set forth below, we affirm.

Before addressing this issue, we will briefly recount the pertinent facts of this case. Michael Thorpe, a driver/deliveryman for the Philadelphia Daily News, was delivering newspapers on the morning of June 24, 1993 at which time he noticed appellant, James Howard. After completing a delivery, Mr. Thorpe was approached by appellant for the ostensible purpose of purchasing a newspaper. Appellant then pulled out a gun and demanded Mr. Thorpe’s money, wallet and a necklace. Mr. Thorpe relinquished possession of these items. Appellant thereafter ran from the area.

Byron Thorpe, a driver/deliveryman for Philadelphia Newspaper, Inc. (P.N.I.), had completed a delivery at approximately 12:30 p.m. on July 16, 1993 when he was suddenly accosted by appellant and another unidentified male who was armed with a handgun. Mr. Thorpe acquiesced in the accomplice’s request for money following which appellant and his companion then left.

Philip Rodriguez, another P.N.I. driver/deliveryman, was consummating his delivery to a newsstand at approximately 1:30 p.m. on July 16, 1993 when appellant walked past him. At this point, another male came from behind and stuck a gun into Mr. Rodriguez’s ribs. Appellant reappeared and began to untie Mr. Rodriguez’s apron, which contained his delivery money. While appellant was in the process of removing the apron, the accomplice took Mr. Rodriguez’s wallet. Appellant and the other man then fled from the scene.

Three days after the robberies, Officer Sawieki was patrolling the area in which the crimes took place when he observed appellant getting into a blue car. Because appellant and the vehicle fit the general description of one of the men who had perpetrated the robberies, Officer Sawieki stopped the vehicle. Officer Sawieki discovered that the car was occupied by a woman, her son and appellant. After verifying the woman’s identification and ownership of the car, she and her son were permitted to leave. In response to the officer’s inquiries, appellant identified himself as “Jack Lighty.” Because appellant carried no identification, the police detained appellant for further questioning and accordingly transported him to the police station where he was fingerprinted. Appellant was subsequently released after two hours.

Analysis of appellant’s fingerprints revealed his true identity to be that of James Howard. As a result, the police compiled a photographic array which included appellant’s picture and showed it to Byron Thorpe and Philip Rodriguez later on July 19th. Both men positively identified appellant as one of the men involved in the July 16th robberies. Appellant was thereafter arrested and charged with various offenses arising out of the July 16th incidents. The same photographic array was later shown to Michael Thorpe on July 27th, at which time he likewise positively identified appellant. Appellant was then arrested and charged with various offenses arising out of the June 24th robbery. All of the charges were subsequently consolidated for trial.

Appellant filed a pre-trial motion to suppress his fingerprints, the physical evidence taken from appellant at the time of his lawful arrest on July 21st, the photographic arrays and the identifications made by the victims. Following a hearing on January 3, 1994, the lower court granted the suppression motion with respect to the fingerprints as well as the photographic array shown to Michael Thorpe and the out-of-court identification resulting therefrom. In all other respects, appellant’s suppression motion was denied. A jury trial was held in January, 1994 following which appellant was convicted of three counts each of robbery, recklessly endangering another person, and terroristic threats; appellant was also convicted of one count each of criminal conspiracy, possession of an instrument of crime and carrying a firearm on a public street. Appellant was sentenced on March 7, 1994 to an aggregate period of seventeen (17) to thirty-four (34) years imprisonment. Appellant thereafter filed a timely post-sentencing motion. The certified record does not contain either a trial court order deciding the motion or an order entered by the clerk of courts indicating that the motion was denied by operation of law. Appellant thereafter instituted this timely appeal on August 10, 1994.

Appellant challenges the lower court’s refusal to suppress the physical evidence, photographic arrays and the victims’ in-court and out-of-court identifications.

When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much evidence for the defense as, fairly read in the context of the record as a whole[,] remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are [in] error.

Commonwealth v. Mayhue, 536 Pa. 271, 300, 639 A.2d 421, 435 (1994) (citation omitted). We will evaluate the decision of the trial court and appellant’s arguments in accordance with these principles.

The trial court determined that the police lacked probable cause to detain appellant on July 19th and accordingly suppressed the fingerprint evidence which was taken from appellant at that time. This ruling has not been appealed by the Commonwealth and will not be revisited at this juncture. Rather, the issue to be determined is whether the evidence arising out of the unlawful detention and fingerprinting of appellant, ie., the discovery of appellant’s true identity and the identifications derived therefrom, as well as the physical evidence obtained following his lawful arrest, must be suppressed as “fruits of the poisonous tree.” With regard to this issue, our Supreme Court has recognized:

The exclusionary rule has traditionally barred from trial physical, tangible material obtained either during or as a direct result of an unlawful invasion.... [However,] an illegal arrest does not bar all evidence subsequent to that arrest.... [A]ll evidence is [not] fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.... [E]vidence should not be excluded when the connection between the arrest and the evidence obtained ha[s] become so attenuated as to dissipate the taint.

Commonwealth v. Garvin, 448 Pa. 258, 265, 293 A.2d 33, 37 (1972) (citations and quotation marks omitted).

The record indicates that appellant wás initially detained on July 21st during which time he was fingerprinted and then released. Suppression Hearing Transcript (S.H.T.) 1/3/94 at 32 and 44. Based on the fingerprints, the police were able to discover appellant’s true identity. Id. The police then obtained a photograph of appellant from their files which had been derived from a previous unrelated arrest; this picture was included in the array shown to the victims. Id. at 12-17 and 32. After the victims positively identified appellant, an arrest warrant was issued and appellant was lawfully arrested pursuant thereto. Id. at 13-17 and 33-35.

Appellant essentially contends that but for his initial unlawful detention and fingerprinting on July 21st, the police would not have discovered his true name or identity, and thus, would not have been able to pull his photograph from police files for display to the victims. However, the appellate courts have recognized that a defendant’s face cannot be a suppressible fruit of an illegal arrest. See, e.g., United States v. Crews, 445 U.S. 468, 477-479, 100 S.Ct. 1244, 1253-1254, 63 L.Ed.2d 537, 549-551 (1980) (concurring opinions by Powell and White, JJ., respectively joined by Blackmun and Rehnquist, JJ. and Burger, C.J.); Commonwealth v. Stein, 369 Pa.Super. 409, 418 n. 3, 535 A.2d 616, 621 n. 3 (1987), allocatur denied, 520 Pa. 574, 549 A.2d 134 (1988). See also Commonwealth v. Carter, 537 Pa. 233, 248, 643 A.2d 61, 68 (1994) (citing Crews and noting that the defendant himself is not a suppressible fruit of an illegal arrest). As recognized by our Supreme Court, “[n]o law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been required to face his accus[e]rs.... We cannot assume that but for the illegal arrest [the defendant] would have remained at large indefinitely.” Commonwealth v. Garvin, 448 Pa. at 265-266, 293 A.2d at 37-38. Moreover, the courts have refused to suppress identification evidence where it was untainted by any illegal police conduct. See, e.g., United States v. Crews, 445 U.S. at 471-77, 100 S.Ct. at 1250-1253, 63 L.Ed.2d at 546-549 (majority opinion by Brennan, J. and concurring opinion by Powell, J.) (where identification evidence antedated the defendant’s unlawful arrest, suppression was not required because the evidence was untainted by the constitutional violation); Commonwealth v. Garvin, supra, 448 Pa. 258, 293 A.2d 33 (declining to suppress identification evidence, despite the defendant’s unlawful arrest, where the illegality did not contribute to either the victims’/witnesses’ knowledge or the accuracy of their identification); Commonwealth v. Stein, 369 Pa.Super. at 414-418, 535 A.2d at 619-621 (applying Garvin and Crews and holding that suppression of identification evidence was unwarranted where it was not derived from illegal police conduct).

We do not discern any significant difference between the exhibition of a person and the exhibition of a photograph to the victim following an unlawful detention. In either case, the victim is comparing his/her own mental image of the perpetrator, which existed prior to any unlawful police conduct, with the individual who is shown in person or by photograph. We accordingly find that suppression of the out-of-court identifications was unwarranted pursuant to Crews, Garvin and Stein, supra, 369 Pa.Super. 409, 535 A.2d 616.

We similarly conclude that the photograph used in the arrays as well as the array itself were not subject to suppression. As noted above, appellant’s photograph was already in the possession of the police at the time of his unlawful detention due to a prior unrelated arrest. S.H.T. 1/3/94 at 12 and 32. Suppression of the photograph therefore was not required because its existence/acquisition antedated the illegal police conduct. See United States v. Crews, 445 U.S. at 475-477, 100 S.Ct. at 1252-1253, 63 L.Ed.2d at 548-550 (opinion by Brennan, J. joined by Stewart and Stevens, JJ. and concurring opinion by Powell, J. joined by Blackmun, J.) (providing that the exclusionary rule enjoins the government from benefiting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality. The Court thus ruled that the identification evidence was untainted by the constitutional violation because it antedated the unlawful arrest).

In addition, the suppression court reviewed the photographs in the array and determined that it was not suggestive, as appellant’s picture did not stand out more than the other photos and the men depicted therein all exhibited similar facial and bodily characteristics. S.H.T. 1/3/94 at 14 and 29-30. Nor were the photographs shown to the victims in a suggestive manner. Id. at 12-18, 33-34 and 56. The lower court’s findings are supported by the record and thus will not be disturbed. Commonwealth v. Mayhue, supra, 536 Pa. 271, 639 A.2d 421.

The suppression court also did not err in refusing to suppress the physical evidence, i.e., the ace bandage and cast. The ace bandage and cast were not taken from appellant at the time of his initial illegal detention. These items instead were only seized after appellant’s lawful arrest on July 21st. S.H.T. 1/3/94 at 35-36 and 38. Suppression of the evidence was thus unwarranted since it was not the product of the prior unlawful detention. See, e.g., New York v. Harris, 495 U.S. 14, 19-21, 110 S.Ct. 1640, 1643-1645, 109 L.Ed.2d 13, 21-22 (1990) (defendant’s statement, which was made after his arrest, was not an exploitation of the illegal entry into his home by the police and thus was not barred by the exclusionary rule); Commonwealth v. Cross, 508 Pa. 322, 331-332, 496 A.2d 1144, 1149-1150 (1985) (recognizing that the defendant’s clothing and personal effects could properly be seized following a lawful arrest).

Finally, the lower court properly refused to suppress the victims’ in-court identifications as they were not tainted by the photographic array and were supported by an adequate independent basis. The record demonstrates that the victims all had an ample opportunity to observe appellant at the time the crimes were perpetrated because the robberies occurred during the daylight hours and the victims all stood in close proximity to appellant for a period of several minutes. See S.H.T. 1/3/94 at 8-9. See also Lineup Application/Preliminary Hearing Transcript, 8/5/93 at 4-13; Lineup Application/Preliminary Hearing Transcript, 8/12/93 at 4-5, 12-13, 16, 23, 29-32, 34-37 and 40-44. The independent basis for the victims’ identification is further supported by the detailed descriptions which they provided to the police after the incidents as well as their immediate and unhesitating selection of appellant’s picture from the array. See S.H.T. 1/3/94 at 9-10, 13-16, 20, 27-28, 41-42, 45-6, 56 and 61-62. Moreover, the photographic array was not suggestive nor was the photographic identification conducted in a suggestive manner. Id. at 12-18, 33-34 and 56 and 69. The record further reveals that the victims positively and unequivocally identified appellant at all pertinent stages of this case. S.H.T. 1/3/94 at 14-16; Lineup Application/Preliminary Hearing Transcript, 8/5/93 at 6; Lineup Application/Preliminary Hearing Transcript, 8/12/93 at 12 and 29-30. Under these circumstances, suppression of the in-court identifications was unwarranted. See Commonwealth v. Marsh, 388 Pa.Super. 610, 616, 566 A.2d 296, 299 (1989) (enumerating the factors to be reviewed which make an in-court identification reliable; an in-court identification following an illegal out-of-court identification is admissible if, considering the totality of the circumstances, it had an independent origin sufficiently distinguishable to be purged of the primary taint).

Judgment of sentence affirmed.

      . Byron Thorpe is the brother of Michael Thorpe.

      . There is a discrepancy as to the date of appellant’s arrest for the July 16th robberies. Testimony introduced at the suppression hearing indicates that the arrest occurred on July 21st and July 23rd. Suppression Hearing Transcript 1/3/94 at 17, 35 and 38. We need not resolve this discrepancy as it does not affect our disposition. However, in referring to this arrest we will utilize July 21st as the correct date as this is the date referenced in other documentation contained in the certified record.

      . Again, there is a discrepancy in the record regarding appellant’s arrest date for the June 24th robbery. Testimony introduced at the suppression hearing indicated that the arrest for this incident occurred on July 27th, whereas other documentation in the record suggested that appellant was not arrested until July 29th. See Suppression Hearing Transcript 1/3/94 at 17; Arrest Report. Again, we need not resolve this discrepancy as it does not affect our disposition. However, in referring to this arrest we will utilize July 29th as the correct date as this is the date referenced in the pertinent documentation.

      . 18 Pa.C.S.A. § 3701(a)(1).

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 2706.

      . 18 Pa.C.S.A. § 903(a).

      . 18 Pa.C.S.A. § 907(a).

      . 18 Pa.C.S.A. § 6108.

      . A sentence of five (5) to ten (10) years was imposed with respect to each of appellant’s robbery convictions; these sentences were directed to run consecutively. Appellant received an additional consecutive sentence of two (2) to four (4) years for his firearm conviction. No further sentences were imposed for appellant’s remaining convictions.

      . Reference to this motion appears in appellant’s notice of appeal and the opinion issued by the trial court. However, the motion is neither identified in the certified docketing statement nor included in the certified record submitted to this court.

      . Appellant was convicted after January 1, 1994; therefore, the amended version of Rule 1410 is applicable. Note, Pa.R.Crim.P., Rule 1410, 42 Pa.C.S.A. (providing that the rule as adopted March 22, 1993 and amended December 17, 1993 is effective as to cases in which the determination of guilt occurs on or after January 1, 1994). Pursuant to the amended rule, post-sentencing motions are now optional rather than mandatory. See id., Rule 1410.B and comment thereto. Where, as here, the defendant elects to file a post-sentencing motion, the trial judge is required to act upon the motion within one hundred and twenty (120) days, unless a thirty (30) day extension is granted at the request of the defendant. Id., Rule 1410.B(3)(a) and (b). If the judge fails to decide the motion or fails to grant an extension of time within the requisite period, the motion is deemed to be denied by operation of law. Id., Rule 1410.B(3)(a) and (b). When a post-sentence motion is denied by operation of law, the clerk of courts is required to enter an order on behalf of the court and furnish defense counsel with a copy thereof. Id., Rule 1410.B(3)(c). See also, Comment, Pa.R.Crim. Rule 9025, 42 Pa.C.S.A. (directing that the clerk of courts must comply with the notice and recording procedures specified in' Rule 9025 after an order is entered denying a post-sentencing motion by operation of law in accordance with Rule 1410.B(3)(c)). A defendant must then file his notice of appeal within thirty days of the entry of the order deciding the motion or denying it by operation of law. Id., Rule 1410.A.(2).

        As applied here, appellant has indicated that his post-sentencing motion was filed on March 15, 1994. The trial court thus had 120 days from this date, or until July 13, 1994 to decide the motion. It does not appear that the trial court either acted upon the motion or granted an extension within this time period. Appellant’s motion is thus deemed to have been denied by operation of law. Rule 1410.B.(3)(a), supra. Although the motion was denied by operation of law, it does not appear that the clerk of courts entered an appropriate order and notified counsel thereof as mandated by Rules 1410.B(3)(c) and 9024. Despite the clerk of court's failure to enter an appealable order, appellant filed his notice of appeal within thirty days of July 13 th, the date on which an order should have been entered. Although the proper procedure would have been for appellant to first praecipe the clerk of courts for entry of an appealable order, see Pa.R.A.P., Rule 301(d), 42 Pa.C.S.A., before initiating his appeal, we shall “regard as done that which ought to have been done” and proceed to review appellant's claims. See, e.g., Commonwealth v. Allen, 278 Pa.Super. 501, 504-505 n. 3, 420 A.2d 653, 654 n. 3 (1980) (in which this court reached the merits of the appeal even though the lower court’s order had never been entered upon the docket). See also Pa.R.A.P., Rule 105(a), 42 Pa.C.S.A. (permitting this court to disregard the requirements of the appellate rules in the interest of expediting decision).


source: Caselaw Access Project

author: POPOVICH, Judge: HUDOCK, Judge,

license: Public Domain

text:
    659 A.2d 1024
    COMMONWEALTH of Pennsylvania, Appellee, v. Luis VIERA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1995;
    Filed June 1, 1995.

      Patrick J. Connors, Asst. Public Defender, Media, for appellant.
    William H. Ryan, Jr., Dist. Atty., Media, for Com., appellee.
    Before POPOVICH, HUDOCK and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Delaware County following appellant’s conviction on the charge of delivery of a controlled substance. Herein, appellant asserts that the lower court erred in allowing the Commonwealth’s rebuttal witness to testify that he was appellant’s parole agent and met with him in that capacity during the time appellant alleged that he was living in New York City. Further, appellant maintains that the court below erred in imposing a sentence based upon its finding that appellant had induced his alibi witnesses to perjure themselves. Upon review, we affirm.

At appellant’s jury trial, Detective Michael Honicker of the Delaware County Criminal Investigation Division testified that a confidential informant had made arrangements for appellant to sell cocaine to the detective in the City of Chester on January 8,1993. Trial N.T. 3/24/94 at 112. Detective Honicker testified that at approximately 5:00 p.m. on that date, appellant entered the detective’s vehicle and sold 3.0 grams of cocaine to him for $150.00. Trial N.T. 3/24/94 at 114-15, 147. The Commonwealth asked the detective whether he had any doubt as to whether appellant sold cocaine to him on January 8, 1993. To that question, Detective Honicker replied that he was positive in his identification of appellant as the person who sold cocaine to him. Trial N.T. 3/24/94 at 120. On cross-examination by defense counsel, Detective Honicker testified that he and appellant were “face to face” in his vehicle for five to ten minutes and that he was able to observe appellant perfectly. Trial N.T. 3/24/94 at 127-29.

Detective Michael Boudwin of the Delaware County Criminal Investigation Division, who provided backup to Detective Honicker at the time of the transaction, testified that he observed appellant enter Honicker’s vehicle and sell drugs to him. Trial N.T. 3/24/94 at 157-59. On redirect examination, the Commonwealth asked Detective Boudwin whether he had any doubt as to whether appellant entered Detective Honicker’s vehicle. To that question, Detective Boudwin replied as follows: “No, there’s no doubt in my mind whatsoever.” Trial N.T. 3/24/94 at 164.

In support of his alibi, appellant called his fiance, Evelyn Beltran, and a former employer, Roberto Meldenaro, to testify that appellant was in New York City when the drag transaction occurred in Chester. Trial N.T. 3/24/95 at 167, 175. Ms. Beltran testified that appellant was in New York City every day of January, 1993, with the exception of the 12th. Trial N.T. 3/24/94 at 170-71. Mr. Meldenaro was the superintendent of the apartment complex in which Ms. Beltran resided. Mr. Meldenaro stated that appellant worked for him as a helper from the beginning of January, 1993, to the middle of February, 1993. Mr. Meldenaro testified that appellant worked with him on January 8, 1993, from 8:00 a.m. to 5:00 p.m., and that January 12, 1993, was the only date which appellant missed from work during the entire period of employment. Trial N.T. 3/24/94 at 176-78, 181-82. At trial, Mr. Meldenaro did not have any employment records or pay stubs with him to substantiate his testimony that appellant worked with him on January 8, 1993. Trial N.T. 3/24/94 at 178-79.

In rebuttal of the testimony offered by defense’s alibi witnesses, the Commonwealth called Brian Bray to the witness stand. Before questioning Mr. Bray, the Commonwealth requested that the court hold a side-bar conference. Trial NT. 3/24/94 at 183. At side-bar, the following discussion occurred:

[ADA]: I wanted to come to side-bar in an overabundance of caution. My rebuttal witness is Brian Bray the parole officer. He is going to testify that he was actually with Luis Viera on the 4th, the 6th, the 7th, the 11th, the 12th, 13, 19, 20, 25, 26, 27, in his office. He sat across the table from him. He also has treble forms which Luis Viera filled out on the days that he was to be in New York. The only days he was to be in New York was from the 12th to the 18th, that was it. This was filled out in front of Brian Bray in his presence.
The Court: Okay.
[ADA]: That’s what I wanted to present.
The Court: That’s proper rebuttal.
[End of side-bar conference]

Trial N.T. 3/24/94 at 183-84.

On direct examination, Mr. Bray stated that he was a parole agent of the Pennsylvania Board of Probation and Parole and that he knew appellant. Trial N.T. 3/24/94 at 185. The Commonwealth asked Mr. Bray whether he met with appellant in January of 1993. Mr. Bray responded in the affirmative. Defense counsel subsequently objected and requested that the court hold a side-bar conference. Trial N.T. 3/24/94 at 185-86. At side-bar, the following discussion transpired:

[Defense counsel]: Now, I agree that it’s proper rebuttal is this was to say simply that he was — he saw Mr. Viera in a different location on a given day. It is not proper rebuttal for the jury to hear that he is a state parole officer and he knows Mr. Viera.
The Court: Oh, I don’t ...
[Defense counsel]: I don’t know if that’s telling ...
The Court: That’s overruled. You — I think any witness who — if this is to rebut Mr. Meldenaro who, if this guy is right, perjured himself and if he did, I want this guy prosecuted. I think the nature — that’s the evidence you’ve put on and the guy has to be identified. He can’t be just cloaked. The jury has a right to hear who he was and what the circumstances are and weigh that.
[Defense counsel]: What this other fellow did is on his shoulders and ...
The Court: That is put in your case and she (ADA) has a right to rebut it. Overruled.
[End side-bar conference]

Trial N.T. 3/24/94 at 186-87.

Thereafter, Mr. Bray testified as follows:
[ADA]: If I may, sir, calling your attention to January of 1993, did you have an occasion to meet with this Defendant, Luis Viera, during that month?
[Bray]: Yes, I did.
[ADA]: Would you please indicate on what dates in the month of January you met with Luis Viera?
[Bray]: The following dates ...
[ADA]: I’m sorry, before I proceed, sir, where would you have met him?
[Bray]: I had met with him at 1416 Upland Street, Chester, Pennsylvania, State Board of Parole Office, Chester District office.
[ADA]: Would that meeting have been face to face?
[Bray]: Yes, it would.
[ADA]: Okay, would you please resort to your record, sir, and indicate what dates in January of 1993 you met with Luis Viera? .
[Bray]: Personally, I met with him on the following dates: 1-4 of ’93, 1-11 of ’93, 1-19 of ’93, and 1-25 of ’93. [ADA]: Did you speak with him on other dates during the course of that month?
[Bray]: I believe I spoke with him on the sixth over the phone.
* * * * i}: H*
[ADA]: I’m showing you, sir, what’s been marked Commonwealth Exhibit “C7”. Can you identify this document, sir, for the record?
[Bray]: Yes, this document is our District Office Travel Permission, written travel permission.
[ADA]: What is that? What is that?
[Bray]: Whenever a client under our supervision wishes to leave the district that we supervise which is Delaware and Chester County, they must get written permission from us in the form of our own Travel Permission Form.
[ADA]: Okay. And what does that document reflect? Whose name is on that document?
[Bray]: Luis Viera.
[ADA]: And where does it say he’s going?
[Bray]: To 1500 Popham Avenue, New York, New York.
[ADA]: And what are the dates of that, sir?
[Bray]: 1-12-93 to 1-18 of ’93.

Trial N.T. 3/24/94 at 187-89.

Upon evaluation of the testimony presented by the parties, the jury found appellant guilty of delivery of a controlled substance. Trial N.T. 3/24/94 at 227.

The sentencing hearing was held on March 28, 1994. At that hearing, the Commonwealth offered testimony revealing that appellant was engaged in a continuing series of violations of the Controlled Substance, Drug, Device and Cosmetic Act. Sentencing N.T. 3/28/94 at 4-6. The court sentenced appellant to a term of imprisonment of five (5) years to ten (10) years with restitution in the amount of $150.00. Sentencing N.T. 3/28/94 at 8. In arriving at its sentencing decision, the court considered the circumstances of the case as follows:

The Court: Okay. Mr. Viera, let me suggest, also, it’s not only the concern I have for all of the drug dealing. But I think it’s patently clear to me that two of your witnesses came in and perjured themselves. And while you didn’t perjure yourself, obviously, they did. You were certainly not in New York at the time of this occurrence. And that was patently clear. And I hope the other two people who showed up and testified for you, I can’t believe that you didn’t have something to do with that. So I just have no sympathy for — I guess I have to have sympathy for someone who sits silent and doesn’t get on the stand. But for someone who has obviously prostituted the Court and allowed two witnesses to come up and lie on the stand, that bothers me to no end ...

Sentencing N.T. 3/28/94 at 7.

On April 26, 1994, appellant timely filed a notice of appeal. On August 9, 1994, the lower court issued an opinion in support of the judgment of sentence.

Herein, appellant raises two issues for our examination:

I. WHETHER THE SENTENCING COURT ERRED WHEN IT SENTENCED APPELLANT BASED UPON IT SPECULATIVE AND UNSUPPORTED BELIEF THAT APPELLANT HAD INDUCED HIS WITNESSES TO PERJURE THEMSELVES DURING THE COURSE OF THE TRIAL.
II. WHETHER THE TRIAL COURT ERRED WHEN IT OVERRULED THE OBJECTION OF APPELLANT TO THE TESTIMONY OF THE COMMONWEALTH’S REBUTTAL WITNESS THAT HE WAS A PAROLE AGENT OF THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE AND THAT HE KNEW APPELLANT.

Appellant’s Brief at 7.

We begin our analysis by addressing appellant’s latter contention. The crux of appellant’s challenge to the evidentiary ruling is that Mr. Bray’s testimony was unfairly prejudicial because the jury was apprised that appellant had engaged in prior criminal activity, and that he was thus stripped of the presumption of innocence.

“A trial court’s rulings on evidentiary questions are controlled by the discretion of the trial court and [an appellate] [c]ourt will reverse only for clear abuse of that discretion.” Commonwealth v. Foy, 531 Pa. 322, 325, 612 A.2d 1349, 1351 (1992), citing, Commonwealth v. Dollman, 518 Pa. 86, 541 A.2d 319 (1988); Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982). “Admission of rebuttal evidence is a matter within the sound discretion of the trial court.” Commonwealth v. Jones, 530 Pa. 591, 616, 610 A.2d 931, 943 (1992), citing, Commonwealth v. Miller, 490 Pa. 457, 471, 417 A.2d 128, 136 (1980). “An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record.” Commonwealth v. Kubiac, 379 Pa.Super. 402, 409, 550 A.2d 219, 223 (1988), appeal denied, 522 Pa. 611, 563 A.2d 496 (1989). An abuse of discretion may result where the trial court improperly weighed the probative value of evidence admitted against its potential for prejudicing the defendant. See Commonwealth v. Wharton, 530 Pa. 127, 144-46, 607 A.2d 710, 719 (1992).

“It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge.” Commonwealth v. Carpenter, 511 Pa. 429, 437, 515 A.2d 531, 535 (1986) (citations omitted) (emphasis added). “To warrant a characterization as prejudicial the testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.” Id. at 437, 515 A.2d at 535 (citations omitted).

In Carpenter, supra, 511 Pa. 429, 515 A2d 531, a parole officer was called to the stand by the Commonwealth for the purpose of establishing the offense of which the defendant was charged. The parole officer stated that he was an agent of the Pennsylvania Board of Parole and that he knew the defendant. Moreover, the parole officer testified as to a conversation he had with the defendant of which the Commonwealth introduced to establish defendant’s motive for committing murder of the first degree. Id. at 435-37, 515 A.2d at 534. In Carpenter, our supreme court determined, “the mention of the witness’ occupation as a parole officer and the fact that he knew the [defendant] did not convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense or record.” Id. at 437, 515 A.2d at 535. See Commonwealth v. Martin, 395 Pa.Super. 244, 253-55, 577 A2d 200, 205 (1990), affirmed, 527 Pa. 404, 592 A.2d 683 (1991) (police officer’s testimony that defendant “had a previous incident” did not convey to the jury the fact of a prior criminal offense).

In the case at bar, detectives Honicker and Boudwin testified on behalf of the Commonwealth to establish that appellant delivered cocaine on January 8, 1993. Both detectives unequivocally identified appellant as the person who sold cocaine to Detective Honicker on that date. Appellant called his fiance, Ms. Beltran, and a former employer, Mr. Meldenaro, to testify in support of his alibi defense. Ms. Beltran and Mr. Meldenaro testified that appellant was in New York City when the drug transaction occurred in Chester on January 8, 1993, and both stated that the 12th was the only date during this month which they could not account for appellant’s whereabouts. To challenge the credibility of the testimony elicited by Ms. Beltran and Mr. Meldenaro, the Commonwealth called Mr. Bray to the stand. Mr. Bray stated that he was a parole agent and that he knew appellant. Mr. Bray then testified as to the dates in January of 1993, that he and appellant met and the dates during this month in which appellant was allowed to leave the district unsupervised. The trial court found that Mr. Bray’s testimony was proper because it was used for the purpose of rebutting the alibi witnesses’ testimony that appellant was in New York City every date in January of 1993, with the exception of the 12th. Moreover, the lower court determined that sanitizing the witness’ identity was not possible since his credibility was of paramount concern. Trial Opinion 4/9/94 at 4. Under the particular circumstances presented in this case, we conclude that the lower court did not abuse its discretion in admitting the testimony of Brian Bray.

Even assuming arguendo that the court below erred in its evidentiary ruling, we would deem that error harmless. “[T]here is no per se rule that requires a new trial for a defendant every time there is a reference to a prior criminal activity.” Commonwealth v. Wallace, 522 Pa. 297, 308, 561 A.2d 719, 724-25 (1989) (new trial not warranted where the testimony did not relate to any specific past criminal act and the jury had no direct knowledge of the basis of that crime; evidence of defendant’s guilt was overwhelming). “Where the statements may be termed merely ‘passing references,’ no reversal is warranted unless the record illustrates that the defendant has been prejudiced by the testimony.” Kubiac, 379 Pa.Super. at 410-11, 550 A.2d at 224 (citation omitted) (new trial not warranted where the testimony included very brief and very generalized references to the alleged criminal activity).

Here, Mr. Bray did not elaborate as to the crime which caused appellant to serve parole. Further, upon examining the testimony elicited by the detectives in relation to the testimony offered by the alibi witnesses, we agree with the trial court’s assessment that the former is credible and the latter is indeed suspect. We conclude that appellant was not prejudiced by the admission of Brian Bray’s rebuttal testimony.

We next address appellant’s challenge to the discretionary aspects of the sentence imposed by the lower court. Initially, we note that appellant has set forth in his brief a concise statement of the reasons relied upon for allowance of appeal. See 42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). We proceed to consider whether appellant has demonstrated the existence of a substantial question.

The determination of whether a particular issue constitutes a substantial question must be evaluated on a case by case basis. However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the [sentencing] judge’s actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.

Commonwealth v. Eicher, 413 Pa.Super. 235, 269, 605 A.2d 337, 354 (1992), appeal denied, 533 Pa. 598, 617 A.2d 1272 (1992), quoting, Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987).

In his concise statement of the reasons relied upon for allowance of appeal, appellant contends that the lower court abused its discretion in imposing a sentence that was based upon the unsupported belief that appellant had induced his witnesses to perjure themselves. Although we are of the opinion that appellant’s sentencing claim raises a substantial question, compare Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992), appeal denied, 535 Pa. 615, 629 A.2d 1377 (“substantial question” raised where defendant argued that court did not have adequate reason for imposing sentence), we find it meritless.

When evaluating the merits of sentencing claims, we are guided by the following standard as set forth by our court in Commonwealth v. Clever, 395 Pa.Super. 192, 194-96, 576 A.2d 1108, 1110 (1990) (citations omitted):

Sentencing is a matter vested in the sound discretion of the trial court and the lower court’s judgment of sentence will not be disturbed by an appellate court absent an abuse of discretion. To constitute an abuse of discretion, a sentence must exceed the statutory limits or be patently excessive. When reviewing sentencing matters, we must accord the sentencing court great weight as it is in the best position to view the defendant’s character, displays of remorse, defiance, or indifference, and the overall effect and nature of the crime.

In the instant case, the court below sentenced appellant to a term of imprisonment of five (5) to ten (10) years. The crime of delivery of cocaine is a felony which carries a maximum sentence of imprisonment of ten (10) years. 35 P.S. § 780-113(f)(l.l). The lower court did not impose a sentence that exceeded the statutory limits. Appellant had a prior record score of seven (7). R.12. The standard range of sentence for the crime of delivery of cocaine with a prior record score of six (6) is fífty-one (51) to sixty (60) months. 204 Pa.Code § 303.9, 42 Pa.C.S.A. § 9721. The court below sentenced appellant within the standard range of the guidelines. Irrespective of whether the sentencing court misconstrued appellant’s role in the perjury of witnesses, we find no basis to disturb the sentence in view of the fact that appellant was engaged in a continuing series of drug dealings and had been convicted of other felonies. The lower court recognized appellant’s criminal history and appropriately applied the sentencing guidelines in this case. Consequently, we find no abuse of discretion.

Having scrutinized appellant’s points of error and finding that they do not avail relief to appellant, we, accordingly, affirm the judgment of sentence.

Judgment of sentence affirmed.

HUDOCK, J., files a Dissenting Opinion.

HUDOCK, Judge,

dissenting:

I am unable to concur with the majority’s conclusion that reversible error did not occur as a result of the testimony of the Commonwealth’s rebuttal witness that he was a probation officer. Thus, I dissent. I would vacate the judgment of sentence and remand for a new trial.

In this drug case, the Commonwealth offered the testimony of Brian Bray in rebuttal. Mr. Bray stated that he was employed by the Pennsylvania Board of Probation and Parole and that he knew Appellant. Thereafter, the following testimony was elicited from Mr. Bray:

[District Attorney]. Calling your attention to January of 1993, did you have occasion to meet with [Appellant] in January of 1993?
[Mr. Bray]. Yes, I did.
Q. If I may sir, calling your attention to January of 1993, did you have an occasion to meet with [Appellant] during that month?
A. Yes, I did.
Q. Would you please indicate on what dates in the month of January you met with [Appellant]?
A. The following dates ...
Q. I’m sorry, before I proceed, sir, where would you have met with him?
A. I had met with him at 1416 Upland Street, Chester, Pennsylvania, State Board of Parole Office, Chester District office.
Q. Would that meeting have been face to face?
A. Yes, it would.
Q. Okay, would you please resort to your record, sir, and indicate what dates in January of 1993 you met with [Appellant]?
A. Personally, I met with him on the following dates: 1-4 of ’93, 1-11 of ’93, 1-19 of ’93, and 1-25 of ’93.
Q. Did you speak with him on the other dates during the course of that month?
A. I believe I spoke with him on the sixth over the phone.
* * * * * *
Q. I’m showing you, sir, what’s been marked Commonwealth Exhibit “C7”. Can you identify this document, sir, for the record?
A Yes, this document is our District Office Travel Permission, written travel permission.
Q. What is that? What is that?
A. Whenever a client under our supervision wishes to leave the district that we supervise which is Delaware and Chester County, they must get written permission for us in the form of our own Travel Permission Form.

N.T., 3/24/94, at pp. 185-89.

I would find this exchange prejudicial to Appellant in that it clearly refers to prior criminal activity by Appellant and therefore denied him a fair and impartial trial. In Commonwealth v. Carpenter, 511 Pa. 429, 515 A2d 531 (1986), our Supreme Court explained:

In Commonwealth v. Clark, 453 Pa. 449, 309 A.2d 589 (1973) this court said: “It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge____ ‘The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence.’ ” Id. at 452, 309 A.2d at 590 (quoting Commonwealth v. Allen, 448 Pa. 177, 181-182, 292 A.2d 373, 375 (1972)). In Clark we stated that a police officer’s statement that the defendant had previously served time “in prison” implied a prior conviction for a serious offense, thus was prejudicial in that it permitted the jury to infer that the defendant had a prior criminal record. To warrant a characterization as prejudicial the testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense. In the case at bar the mere passing reference to the appellant’s confinement did not supply a sufficient basis for a reasonable inference of prior criminal activity in view of the numerous crimes for which he was then on trial. The reference did not either expressly or by reasonable implication convey the fact of a prior criminal offense unrelated to the criminal episode for which he was then on trial.

Id. 515 A.2d at 535 (quoting Commonwealth v. Banks, 454 Pa, 401, 410-11, 311 A.2d 576, 581 (1973)) (emphasis in original).

In Carpenter, as in the present case, the appellant argued that his trial was tainted by the testimony of a Commonwealth witness employed by the Pennsylvania Board of Parole. The agent, stating his occupation and affirming that he knew the appellant, “was called by the Commonwealth to testify as to a conversation he had with appellant in August, 1983 regarding his broken jaw, and his reluctance to identify his attacker to the police.” Id. 511 Pa. at 436, 515 A.2d at 534. Despite the fact that the jury was told of the agent’s occupation and that he knew the appellant, the Court held that such testimony “did not convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense or record[,]” since the jury was never told that the agent was actually the appellant’s own parole officer. Id. 511 Pa. at 437, 515 A.2d at 535. The Court, in reaching this conclusion, stressed that there are many ways that the appellant may have come to know the parole officer. Thus, the Court concluded that little prejudice was caused by the agent’s passing reference to his job as a parole officer.

In the case herein, like Carpenter, Mr. Bray did not actually state that he was Appellant’s parole officer, but Mr. Bray’s testimony ineluctably leads to the conclusion that Appellant had a prior criminal record. Mr. Bray stated that he actually met with Appellant at parole headquarters. Further, Mr. Bray explained that Appellant filled out a Travel Permission Form which is required to be filled out by every person under the parole board’s supervision before a supervised person may travel. Clearly, a jury, by reasonable implication, could have found from these statements that Appellant had a prior criminal record. Thus, I would vacate the judgment of sentence and remand for a new trial.

      . 35 P.S. § 780-113(a)(30).


author: TAMILIA, Judge:

text:
    659 A.2d 1032
    Donald L. SCHIMP, Executor of the Estate of Jacob L. Schimp and Donald L. Schimp, Appellants v. Wayne L. ALLAMAN.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1995.
    Filed June 5, 1995.

      Joseph J. Liotta, III, Franklin, for appellants.
    Ralph L.S. Montana, Clarion, for appellee.
    Before TAMILIA, JOHNSON and HUDOCK, JJ.
   TAMILIA, Judge:

Donald L. Schimp, individually and as executor of the estate of Jacob L. Schimp, takes this appeal from the Order entered August 29, 1994 making final the Order of August 26, 1994, which permanently enjoined appellant and all who claim title under him from asserting any right or interest in the parcel of land in dispute.

During different years in the early 1900’s, a common grant- or deeded adjoining property to the parties’ predecessors in title. The location of the common boundary is set out in each party’s deed in different places, the effect of which creates an overlap of common property of approximately one acre, which is the subject of the present dispute. Around 1915, one of appellant’s predecessors in title constructed a fence on appellant’s parcel parallel to the boundary line with appellee’s property. According to appellant’s deed, the location of this fence would have been more than 100 feet from the boundary and clearly on his property, and according to appellee’s deed, this fence would have been located roughly on the common boundary line. This fence has not been moved appreciably since it was constructed.

Appellant, who acquired title in 1981 through the last will and testament of his father, cominenced an action on April 22, 1983 to quiet title pursuant to Pa.R.C.P. § 1061(b), requesting the court to order appellee to commence an action of ejectment. The court, after issuing upon appellee a rule to show cause why he should not be compelled to commence an action of ejectment and taking testimony on the rule, entered an Order on January 23, 1985 finding appellee had title to the disputed land and dismissing appellant’s claim. On appeal to this Court, we reversed and remanded instructing the trial court to make findings of fact and conclusions of law with respect to: whether appellant is ip possession of the disputed parcel, whether a dispute to title exists, and whether an Order should be issued on appellee compelling him to file an action of ejectment. Schimp v. Allaman, 353 Pa.Super. 232, 509 A.2d 422 (1986).

Before the trial court had the opportunity to decide the issues raised by this Court, the parties entered into a stipulation that the court would treat appellant’s complaint under Pa.R.C.P. § 1061(b)(2). The parties further stipulated that neither additional testimony nor argument was required and the trial court would decide the issues from the cold record and previously submitted briefs. On August 26,1994, the trial court entered its findings of fact, conclusions of law, discussion and Order ruling that appellee had been in possession of the disputed tract for a term in excess of the statutory period of 21 years and he held title to the parcel by virtue of the doctrine of consentable line. Following the denial of appellant’s post-trial motions, he filed the present appeal.

On appeal to this Court, appellant argues he unquestionably is holder of record title to the tract, and thus has constructive possession, because he acquired title from a common grantor prior in time to the conveyance to appellee. In addition, he claims actual possession as the result of continued use by him and his predecessors in title, which eliminates the application of either consentable line or adverse possession. In any event, interpreting the evidence in a light most favorable to appellee, appellant contends the record demonstrates at the Very least mutual possession, which does not satisfy appellee’s burden of proving exclusive possession.

The question of where a boundary line actually is located is a question for the trier of fact. Plott v. Cole, 377 Pa.Super. 585, 589, 547 A.2d 1216, 1219 (1988). Where, as here, the trial court sat as the fact-finder, we will not reverse on appeal unless the court’s findings are not supported by credible evidence. Id. The doctrine of consentable line, which is a separate and distinct theory from adverse possession, is a rule of repose for the purpose of quieting title and discouraging confusing and vexatious litigation. Id. at 592, 547 A.2d at 1220. There are two ways to prove consentable line: by dispute and compromise or by recognition and acquiescence. Id. Since there is no evidence in the record of any prior dispute, only the latter method is applicable, which requires a finding each party has claimed the land on his side of the line as his own, and that this occupation has occurred for the statutory period of 21 years. Id. at 594, 547 A.2d at 1221. We shall now review the record to determine if the trial court’s finding there was a consentable line is supported by credible evidence.

The trial court premised several of its legal conclusions based on the continued existence of the fence along the disputed boundary line. The court found each party, as well as their predecessors in title, claimed their respective sides of the fence as their own. The record contains the testimony of various predecessors in title to appellee, who testified they utilized the tract of land in dispute to grow crops, pasture cattle, etc., and no claim to the parcel had ever been made by appellant or his predecessors in title. Our courts have long recognized that a boundary line may be proved by a longstanding fence without proof of a dispute and its settlement by a compromise. Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 545 A.2d 926 (1988) (citations omitted). Here, the court did recognize appellant had sporadic use of the land, however the requirement for the doctrine of consentable line does not require exclusive possession but that each party has claimed the land on his side of the line as his own. Plott, supra. Moreover, appellant, in his brief, raises various allegations regarding the actual use of the fence, why it was constructed, and his use of the land. However, the trial court obviously found the evidence incredible and we shall not disturb such a finding as the trial court, as sole assessor of credibility, may believe all, part or none of the evidence presented. Miller v. C.P. Centers, Inc., 334 Pa.Super. 623, 483 A.2d 912 (1984). Accordingly, we find appellee has satisfied the first requirement of the doctrine of consentable line.

The second requirement of the doctrine is that appellee be in possession of the disputed land for the statutory period of 21 years. The trial court found appellee had been the sole owner of the full parcel since 1979, he owned the parcel with his mother as joint tenants with the right of survivorship since 1961, and he owned the parcel with his mother and father since 1958, which is substantially in excess of the statutory period of 21 years.

The court also determined appellee was in possession of the tract for the required statutory period. Since this doctrine does not provide a precise, definition of possession, the court relied on the doctrine of adverse possession, which does not require exclusive possession, but focuses on dominion over the land. Glenn v. Shuey, 407 Pa.Super. 213, 595 A.2d 606 (1991). Moreover, the determination of what constitutes actual possession depends on the facts of each case, and to a large extent on the character of the land. Id.

Here, the court determined the character of the tract and land surrounding it primarily is pasture or grazing land. The court found appellee’s predecessors in title used the land to grow crops and pasture cattle, and in fact, constructed a track road on the parcel. The court also determined appellee regularly fertilized and limed the parcel and pastured his cattle on it every year since 1951. As such, we find appellee satisfied the possession requirement of the tract for the statutory period of 21 years. Again, appellant, in his brief, raises various allegations contradicting the court’s findings, however, we find there was ample credible evidence to support the ruling.

Appellant also argues appellee did not plead the doctrine of consentable line, therefore the court could not apply such a legal theory in its analysis. This argument is without merit as this Court may affirm a decision of the trial court when it is correct on any legal ground or theory without regard to the ground upon which the trial court relied. Wecht v. PG Publishing Co., 353 Pa.Super. 493, 510 A.2d 769 (1986) (citations omitted).

Order affirmed.

      . Since we find the trial court had credible evidence to support its findings appellee acquired the disputed tract by means of the doctrine of consentable line, we find no need to address the issues pertaining to adverse possession.


author: POPOVICH, Judge:

text:
    659 A.2d 1035
    Norman M. BELLE and Sylvia R. Belle, His Wife, Appellees, v. Rocco CHIEPPA and Vera Chieppa, His Wife and Robert E. Crofford Jr., and Gloria Jean Crofford, His Wife, v. The TOWNSHIP OF UPPER ST. CLAIR and St. Clair Builders v. NICHOLSON PILE COMPANY A/K/A Nicholson Construction Company v. James CORBETT and Timothy Corbett, Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1995.
    Filed June 7, 1995.

      John M. Kasaback, Pittsburgh, for appellants.
    John R. Fielding, Pittsburgh, for Belle, appellee.
    Before ROWLEY, P.J., and McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County which granted appellees’ petition to amend their complaint to include appellants as defendants and which found appellants in contempt of the lower court’s order of September 8, 1992. Appellants contend that the lower court erred as a matter of law in allowing appellees to amend their complaint and that the lower court abused its discretion in holding them in contempt. Finding no error of law or abuse of discretion in the actions of the lower court, we affirm.

The record reveals that appellees initiated this action to compel their neighbors, Rocco Chieppa and Vera Chieppa and Robert T. Crofford, Jr., and Gloria Jean Crofford, to repair a retaining wall which was in danger of collapse. Additional defendants were added to the action, and, eventually, on September 8, 1992, St. Clair Builders, Inc., and the Township of Upper St. Clair were directed to repair the retaining wall and correct storm water run-off problems which existed at the site. On September 8, 1992, the lower court entered the following order:

AND NOW, this 8th day of September, 1992, upon consideration of the finding of fact, and conclusions of law submitted by the parties to this action and upon consideration of the deposition testimony, reports, exhibits and evidence submitted herein, it is ordered, adjudged and decreed that the plaintiffs [appellees, herein] are entitled to and shall be granted equitable relief sought in their amended complaint, and the additional defendants, The Township of Upper St. Clair and St. Clair Builders, Inc., are deemed severally liable to the plaintiffs for the injuries each defendant caused to their property and home as provided below.

It is further ordered, adjudged and decreed, that responsibility for erection of the gabion buttress and construction of the swale and for the installation of a water management system to divert water from the defendants’ properties away from the plaintiffs’ property, shall be as follows:

(1) St. Clair Builders shall be responsible for all preliminary clearing, grading, planting, restoring and cleaning on the Belle, Chieppa and Crofford (Chang) properties which may be necessitated before work on the gabion wall, swale and storm water system can begin. The costs of the preliminary work shall be borne by St. Clair Builders.
(2) St. Clair Builders shall be responsible for the design and erection of a double-row rock gabion buttress system, six feet in height and extending along the entire length of the present retaining wall. The cost of design and erection of the rock gabion buttress system shall be borne by St. Clair Builders; The Township of Upper St. Clair shall participate in the design and erection of the rock gabion buttress system to the extent that it deems necessary to protect its public utility easement and its sanitary sewer.
(3) Upper St. Clair Township shall be responsible and pay for the re-establishment of the swale located and the base of the retaining wall, by clearing, cleaning and grading said swale in such a manner to insure that it shall convey water away from the Belle property.
(4) The Township of Upper St. Clair shall ensure that the Belle storm water management system is adequate to convey the bulk of the surface water runoff generated from the roofs, pavements, lawns and embankments of the Chieppa/now Chang properties to the storm sewer system along Berkshire Drive and to ensure that a minimum of surface water shall flow down to the Belle property. The cost of the design and installation of any necessary additional storm water control and management system, should the present system prove inadequate in the opinion of the township, shall be borne by St. Clair Builders.
(5) St. Clair Builders shall be responsible for the cleanup and restoration of the Belle, Chieppa and Chang properties upon completion of the gabion wall and storm water control management systems and the cost of such cleaning and restoration shall be borne by St. Clair Builders except for that necessitated by reconstruction of the swale.
It is further ordered, adjudged and decreed that upon the completion of the above work on the gabion wall, the storm water managements systems and swale, the Township of Upper St. Clair shall assume full and complete responsibility for all future repairs, replacements and maintenance of the swale located in the public utility easements on the plaintiffs’ and defendants’ properties. The plaintiffs shall have future responsibility for maintenance of the storm water management system on their property subject to the duty of the defendant township to ensue by reasonable frequent inspections that such systems are operating properly. It is ordered that the township is prohibited from proceeding against the Chieppas and Changs for any past or future storm water damage caused by the negligence of the township or of St. Clair Builders and it is finally ordered that Investors and Lenders and Associate Discount Company have no liability for any water damage caused by the negligence of the township or St. Clair Builders.

St. Clair Builders, Inc., filed an appeal from the mandatory injunction, and we affirmed the decision of the lower court on June 21, 1993. See, Belle v. Chieppa, 431 Pa.Super. 633, 631 A.2d 1363 (1993).

After we affirmed the lower court’s decision to issue a mandatory injunction against St. Clair Builders and the township, appellants who are the directors, officers and sole shareholders of St. Clair Builders, dissolved the corporation at a special meeting on September 15, 1993. It is undisputed that appellants dissolved the corporation because they believed it did not have the manpower or financial resources to perform the repair of the retaining wall. Appellants expressly decided to dissolve the corporation rather than face the possibility of bankruptcy.

At that meeting, appellants also voted to satisfy the line of credit at Washington Federal Savings Bank and to pay all subcontractors and suppliers in full before dissolution. Appellants then proceeded to liquidate the corporation and pay all of its debts except those related to the current litigation. Appellants were left with approximately $19,000.00 in cash which they divided between each other. After the corporation was dissolved, appellants continued the business once performed by St. Clair Builders, Inc., through Highland Enterprises, another corporation for which appellants were the sole shareholders, directors and officers.

Appellants never attempted to comply with the court’s order of September 8,1992. Consequently, appellees filed a petition to amend their complaint to include appellants as defendants and to find appellants in contempt. A hearing was held and, the lower court entered the following order:

AND NOW, April 5th, 1994, after hearing on the petition of plaintiffs, Norman M. Belle and Sylvia R. Belle, his wife [appellees, herein], praying that this Court find St. Clair Builders and the Township of Upper St. Clair, additional defendants, in contempt of the opinion and order of court entered September 8, 1992,
The Court finds that James Corbett and Timothy Corbett, sole shareholders/directors/officers of St. Clair Builders [appellants, herein], after affirmance- in June, 1993, of the September 8, 1992, opinion and order, dissolved St. Clair Builders in October, 1993, and immediately transferred its business to Highland Enterprises, another corporation of which both the Corbetts are sole shareholders/officers/directors. The Court further finds that St. Clair Builders and Highland share a common location, furniture, telephone, accountant, bank and insurer;
Therefore, it is ordered, adjudged and decreed that James Corbett and Timothy Corbett as officers, sole shareholders and directors of St. Clair Builders and as individuals are added as additional defendants in the present case and the motion of plaintiffs so to amend the pleading is granted;
It further appearing that no effort has been made by St. Clair Builders or James Corbett or Timothy Corbett, as officers/directors/shareholders/individuals to begin compliance with the order of September 8, 1992, and that the dissolution of St. Clair Builders was a subterfuge to sabotage compliance.
Therefore, it is ordered, adjudged and decreed that St. Clair Builders, Timothy Corbett and James Corbett are in contempt of the order of September 8, 1992; in order to purge themselves of contempt it is further ordered that within 30 days St. Clair Builders, Timothy Corbett and James Corbett, as shareholders/officers/directors of St. Clair Builders and as individuals commence work on the retaining wall, swale and water management system as ordered on September 8, 1992, or arrange immediately for another competent builder to start such work within thirty days; it is further ordered that if such work has not commenced within thirty days of this order, St. Clair Builders, James Corbett and Timothy Corbett shall jointly and severally be liable for a fine of $200 for each day of delinquency, beginning on thirty days, the fine to be paid to the plaintiffs along with any counsel fees and costs incurred by reason of the current litigation; it is finally ordered that if work is not commenced within thirty days and if the fine of $200 for each day of delinquency thereafter is not paid for a period of 90 days after delinquency, upon petition to this Court, the unpaid fine will be reduced to judgment and the plaintiffs may proceed fully to enforce such judgment against St. Clair Builders and James Corbett and Timothy Corbett as individuals and as owner/directors/officers of St. Clair Builders;
It is finally ordered that the rule issued in this case against the Township of Upper St. Clair is discharged.

Exceptions to the lower court’s order of April 5, 1994, were filed and denied. This appeal followed.

In Lower Frederick Township v. Clemmer, 518 Pa. 313, 322, 543 A.2d 502, 507 (1988), our Supreme Court set forth the standard of review and the scope of review to be applied in equity actions, as follows:

At the outset, we recognize that “normally, appellate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion.” Sack v. Feinman, 489 Pa. 152, 165-66, 413 A.2d 1059, 1066 (1980) citing Commonwealth Department of Environmental Resources v. Pennsylvania Power Co., 461 Pa. 675, 337 A.2d 823 (1975). “The scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious.” Sack v. Feinman, supra, 489 Pa. 152, 413 A.2d 1059 citing Delp v. Borough of Harrisville, 25 Pa.Cmwlth. 486, 360 A.2d 758 (1976). With these principles in mind, we examine the issued raised.

Appellants complain that the lower court erred as a matter of law in allowing them to be included as additional defendants in this action. Citing Pa.R.C.P. Rule 2252, appellants argue that appellees “can not seek to add persons as additional defendants. The Rules of Civil Procedure simply do not provide for such a request.” Appellants’ Brief, p. 8. A similar argument was rejected by our Supreme Court in Lower Frederick Township v. Clemmer, supra, 518 Pa. 313, 543 A.2d 502:

The rules relied upon by the Commonwealth Court [to find that joinder of an additional defendant by the plaintiff was improper] are the rules for the “Joinder of Additional Defendants” found in Pa.R.C.P. Rules Nos. 2251 to 2274____ A reading of Rules 2251 to 2274 reveals that they are intended to apply to defendants who wish to join an additional defendant....
Rules 2251-2257, by their very terms, are designed to apply to the situation where a defendant has grounds to add an additional defendant. The only time the rules are applicable to a plaintiff is where a plaintiff is counter-sued on a counterclaim and that plaintiff, who becomes a counterclaim defendant, wishes to join another as an additional defendant in the counterclaim.
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... The Rules of Procedure do not contain specific provisions outlining a procedure where a plaintiff is required to add another person as a party defendant. In the absence of a mandated procedure, trial courts have adopted various methods to effect a proper joinder of an additional party under circumstances other than the traditional situation of a defendant adding an additional defendant which is covered by Rules 2251 et seq. See 7 Goodrich Amram § 2232(c):l.l, pp. 563-64. Among the methods approved by the lower courts is the kind of procedure adopted by the Township and approved by the chancellor in this case, namely, adding an additional party by petition and rule. 7 Goodrich Amram § 2232(c):l.l, supra.

Lower Frederick Township v. Clemmer, 518 Pa. 324-325, 543 A.2d at 508-509 (footnote omitted); Pa.R.C.P. 2232(c) (“At any stage of an action, the court may order the joinder of any additional person who could have joined or who could have been joined in the action and may stay all proceedings until such person has been joined.... ”).

Instantly, by petition and rule, appellees sought to join appellants as defendants. The lower court had proper jurisdiction over appellants, and appellants were provided with adequate notice of the action against them. Thus, we find that the lower court did not commit an error of law by permitting the joinder of appellants as defendants. See, Lower Frederick Township, 518 Pa. 326, 543 A.2d at 509.

Appellants also submit it was an abuse of discretion by the trial court to permit appellees to join them at such a late stage of the proceedings since their identity was known to appellees from the beginning of the litigation. Further appellants argue that it was an abuse of discretion for the lower court to find them in contempt of the Order of September 8, 1992. Appellants state that they did not directly harm appellees since neither of them were involved in the construction of the retaining wall by St. Clair Builders, Inc., in the early 1960’s. Also, appellants cavalierly state:

What [appellants] did was to make a business decision. A sound business decision based upon a rational assessment of the assets and liabilities of St. Clair Builders, Inc. That decision was that St. Clair Builders, Inc. did not have the resources with which to comply with the Order of September 8, 1992, and that rather than seek the protection of a bankruptcy discharge they chose to dissolve the corporation.

Appellants’ Brief, p. 10.

Upon review, we find no abuse of discretion in the lower court’s decision to add appellants as parties to the action at such a late date in the proceedings. We find that appellants’ own actions necessitated their addition as parties. Simply put, there was no need to join appellants as defendants until after they dissolved St. Clair Builders, Inc., in an effort designed solely to avoid its legal obligations under the Order of September 8, 1992.

Moreover, appellants’ willful violation of the order in their capacity as directors, officers and shareholders of the corporation was clearly contumacious and subject to a civil contempt citation, regardless of whether appellants were joined as parties. Where corporate officers knowingly disobey an injunction, the injunction can be enforced directly against those officers even when they have not been joined as parties to the suit. Neshaminy Water Res. v. Del-Aware Unlimited, 332 Pa.Super. 461, 468, 481 A.2d 879, 883 (1984); Brightbill v. Rigo, Inc., 274 Pa.Super. 315, 329, 418 A.2d 424, 431 (1980). As the Commonwealth Court observed in Americans Be Independent v. Commonwealth of Pennsylvania, 14 Pa.Cmwlth. 179, 190, 321 A.2d 721, 727 (1974), a corporation acts only through its officers, agents, representatives and employees, and if such persons are permitted to knowingly violate the terms of an injunction, “it would be impossible for a court to ever enforce an injunctive order against a corporation such as [St. Clair Builders, Inc.]” See also, Neshaminy Water Res., 332 Pa.Super. 469, 481 A.2d at 883; Brightbill, 274 Pa.Super. 330, 418 A.2d at 431. Here, appellants were the sole shareholders, directors and officers of St. Clair Builders, Inc. Appellants caused the corporation to be dissolved for the express purpose of avoiding its legal obligation to rebuild (or pay to rebuild) the retaining wall. We find no abuse of discretion on the part of the trial court in finding appellants in contempt of the order of September 8, 1992.

Order affirmed.

      . Although neither party has raised any issues regarding the legality of the dissolution of St. Clair Builders, Inc., we note that appellants have violated the Business Corporation Law of 1988, 15 Pa.C.S.A. § 1101, et seq. The Business Corporation Law of 1988 governs voluntary dissolution of Pennsylvania corporations and requires that the debts and liabilities of the corporation are satisfied by the corporation or discharged by a court of law prior to final dissolution. See generally, 15 Pa.C.S.A. §§ 1971-1980 (Voluntary dissolution and winding up), 1991-1998 (Postdissolution provision for liabilities). Clearly, appellants made no provision for the judgment (mandatory injunction) against them at the time of dissolution, and, thus, they violated the Business Corporation Law. 15 Pa.C.S.A. §§ 1975, 1977, 1992, 1995, 1997.


author: HESTER, Judge:

text:
    659 A.2d 1040
    Debra ALFRED, v. Ronnie BRAXTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 13, 1995.
    Filed June 7, 1995.

      Craig A. Cohen, Philadelphia, for appellant.
    Leslie G. Bohner, Philadelphia, for appellee.
    Before DEL SOLE, FORD ELLIOTT and HESTER, JJ.
   HESTER, Judge:

Ronnie Braxton, Father, appeals from the order of the Philadelphia Court of Common Pleas granting appellee-Mother, Debra Alfred, primary physical custody of the parties’ daughter. For the reasons which follow, we reverse and remand.

Father has been a Pennsylvania resident since 1979; Mother is a resident of Trinidad who has been living in the United States since 1989. Notes of Testimony (“N.T.”), 9/1/94, at 33, 56. Mother is married and separated from her husband, Wayne Alfred, also a citizen of Trinidad who lives in New York. Id. at 36-37. Mother and her husband have two children who were born in Trinidad and presently reside with Mother. Id. at 31-32. Mr. Alfred is not involved in this case.

Father met Mother in 1989. Mother was separated at that time. Based upon her representation that the marriage was over, Father began a relationship with Mother. Id. at 56. Mother became pregnant in 1991 and a daughter, Maayan Braxton, was born out of wedlock on January 15, 1992. Id. at 20. The parties lived together in Philadelphia with Maayan for approximately one year, when Mother left the residence with Maayan in March, 1993, and moved in with Mother’s sister, also in Philadelphia. Id. at 24, 57.

Mother filed a complaint to confirm custody on August 27, 1993, and Father filed a complaint for custody on December 30, 1993. Beginning in December, 1993, the parties began a shared custody arrangement whereby Mother had physical custody of Maayan Friday mornings until Monday mornings and all day Wednesday, and Father had physical custody of the child Monday mornings until Wednesday mornings and Wednesday evenings until Friday mornings.

A hearing was held on September 1, 1994, at which both parties testified. There were no other witnesses at the hearing. At the conclusion of the hearing, the trial court entered the following order:

And Now, this 1st day of September, 1994, it is hereby ordered that:
Primary Physical Custody of the child Maayan Braxton is awarded to mother, Debra Alfred. Father’s Complaint for Custody, filed by father on 12-30-93 is denied. Parties are to share legal custody. Partial physical Custody shall be awarded to father. Father’s attorney is to present the terms of the partial custody for father to the Court, in written form, within one week.

This appeal followed.

The first issue presented for our review is whether a document from the United States Immigration and Naturalization Service was admissible into evidence at the custody hearing. Father sought to admit the document to prove that Mother was an illegal alien. The trial court denied its admission, holding that it was not properly authenticated and therefore, inadmissible. Father asserts that the record he sought to introduce was self-authenticating or properly authenticated pursuant to 42 Pa.C.S. §§ 6103 and 6104.

We need not decide this issue because Mother, in fact, testified that she was not lawfully in the United States. Mother testified that she came to the United States on a visa which had expired sometime in 1990. N.T., 9/1/94, at 35. She acknowledged that she is not a United States citizen and that she is waiting for a green card when she will seek United States citizenship. Id. at 35-36, 40. The evidence Father sought to introduce was admitted freely by Mother. Thus, even if the trial court erred in refusing to admit the document, any error was harmless.

Appellant’s second issue is that the trial court failed to consider the child’s best interests when it awarded primary physical custody to Mother in light of the facts that the child spent one-half of her time with Father, Mother leaves the child without adequate supervision, and Mother is present in this country illegally.

It is clear that in matters of custody and visitation, the ultimate consideration of the court is a determination of what is in the best interests of the child. Such a determination, made on a case-by-case basis, must be premised upon consideration of “all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.” Lee v. Fontine, 406 Pa.Super. 487, 488, 594 A.2d 724, 725 (1991), citing Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130 (1990). Moreover, the proper standard of review for an appellate court in a custody case is well-established.

The scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977) (plurality). However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Lombardo v. Lombardo, 515 Pa. 139, 146, 527 A.2d 525, 529 (1987). Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of thé trial court’s factual findings; and thus, represent a gross abuse of discretion. Id.

McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (1992).

Finally, in a custody matter, the trial court must file a comprehensive opinion containing its findings and conclusions regarding all pertinent facts. Egelkamp v. Egelkamp, 362 Pa.Super. 269, 524 A.2d 501 (1987), citing Commonwealth ex rel. Leighann A v. Leon A., 280 Pa.Super. 249, 421 A.2d 706 (1980). Effective appellate review requires a complete and comprehensive opinion containing an exhaustive analysis of the record and specific reasons for the court’s ultimate decision. Artzt v. Artzt, 383 Pa.Super. 23, 556 A.2d 409 (1989); see Harner v. Harner, 330 Pa.Super. 343, 479 A.2d 583 (1984); Berresford v. Berresford, 308 Pa.Super. 278, 454 A.2d 129 (1982). When no such opinion is forthcoming, we must remand to the trial court. Artzt v. Artzt, supra, 383 Pa.Super. 23, 556 A.2d 409.

In the brief opinion filed in this case, the trial court states only that it refused to accept the documents concerning Mother’s status as an illegal alien because they were not authenticated. Even this alleged error, which we determined had no impact at trial, is not analyzed or explained by the court. As to the child’s best interests, which the trial court acknowledged it was to consider, the court states only that they will be served by Mother. There are no findings of fact, no analysis of the evidence, and no explanation as to why and how the trial court determined that Maayan’s best interests would be served by primary custody in Mother.

“[S]ince our broad scope of review does not vest this court with the duty or the privilege of making our own independent custody determination,” remand to the lower court is our only option. Artzt v. Artzt, supra, 383 Pa.Super. at 26, 556 A.2d at 411. While we are loathe to delay resolution of this matter, and do so only in rare instances, our review of the record and the trial court’s “opinion” allows for no other alternative. We are offered neither guidance as to the credibility of the witnesses nor the court’s findings about Father’s credibility when he testified Maayan was inadequately supervised during Mother’s periods of physical custody. “We have often noted that the hearing judge is in a far superior position to determine matters of credibility, and to evaluate the attitude and sincerity of the witnesses.” In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231, 233 (1979). The trial court did not comment on any of the allegations Father made regarding Mother’s supervision of Maayan, made no mention of the suitability of either party as a primary caretaker, and failed to comment on Mother’s suitability for primary custody in light of her admitted status as an illegal alien.

A trial court opinion must reveal to the appellate court that the lower court conducted a thorough analysis of the record. We are unable to glean any reasons, let alone specific ones, for the trial court’s decision. There is no way for us to determine what the deciding factors were for the trial court’s decision, nor can we determine if the court attached any weight to any of the testimony offered by either of the parties.

We are constrained to conclude that we must remand this case. While the present record may provide a sufficient basis for a comprehensive opinion, we do not limit the ability of either party to request, or the lower court’s discretion to require, a further hearing. See Kimmey v. Kimmey, 269 Pa.Super. 346, 409 A.2d 1178 (1979).

Order reversed. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

      . The court’s only statement in this regard is that it was trying a custody matter, not conducting an immigration hearing. Such a conclusion, which was apparent' in the court’s attitude throughout the custody hearing, has nothing to do with whether the court must consider such evidence in analyzing how this child’s interests will best be served.