author: TAMILIA, Judge.

text:
    681 A.2d 1348
    COMMONWEALTH of Pennsylvania v. Dean L. MYERS, Sr., Appellant. COMMONWEALTH of Pennsylvania, Appellant v. Deborah Ann MYERS.
    Superior Court of Pennsylvania.
    Argued June 11, 1996.
    Filed July 22, 1996.

      Darrell C. Dethlefs, Camp Hill, for Dean L. Myers, Sr.
    Michael D. Rentschler, Camp Hill, for Deborah A. Myers.
    Mary B. Seiverling, Deputy Attorney General, Harrisburg, for the Com.
    Before TAMILIA, JOHNSON and MONTEMURO, JJ.

       Retired Justice assigned to the Superior Court.

   TAMILIA, Judge.

These consolidated appeals arise from the drug trafficking convictions of Dean and Deborah Myers, husband and wife. Following a joint jury trial, Dean Myers was convicted of four counts of possession with intent to deliver a controlled substance and one count of criminal conspiracy, and Deborah Myers was convicted of one count of possession with intent to deliver a controlled substance and one count of criminal conspiracy. The convictions arose from the same set of facts, which are set forth by the trial court as follows.

The evidence at trial indicated that, on March 16, 1994, agents from the Tri-County Drug Task Force and agents from the Pennsylvania Office of the Attorney General were in the process of investigating a marijuana trafficking operation. In the course of their investigation, the officers received notice that the [Myerses, subjects] of the drug investigation, [were] proceeding toward 702 State Street in the borough of Lemoyne. The police proceeded to 702 State Street and observed the [Myerses] as they arrived in a a Budget Rent-A-Van.
After the [Myerses’] van stopped, the police approached, identified themselves, and explained that they were investigating the [Myerses’] involvement in the transportation of marijuana from California to central Pennsylvania. In addition, the police administered Miranda warnings. After receiving these warnings, Dean and Deborah Myers both indicated that the van contained marijuana. [Dean Myers] also informed the police that he had been conducting his own investigation and was trying to identify major marijuana traffickers who were supplying marijuana to his son. [Dean Myers] further stated that he wished to relay additional information, but requested that he leave his residence at 702 State Street because he feared being overheard by other occupants of the home.
Pursuant to this request, the police transported [Dean Myers] to the Lemoyne police department, and Deborah Myers followed in the Budget RenL-A-Van. At the police station, the investigating officers conducted a joint interview of Dean and Deborah Myers. During this interview, Dean Myers indicated that, on the night in question, he had transported approximately thirty-three pounds of marijuana from California to central Pennsylvania. Myers' also indicated that he had transferred approximately twenty pounds of the total thirty-three pounds to a nearby storage facility. In addition to these admissions, [Dean Myers] indicated that, prior to his apprehension for this incident, he had travelled to California and had returned to central Pennsylvania with various quantities of marijuana, ranging in weight from 20.5 to 33.25 pounds. Finally, during the course of this interview, [Dean Myers] consented to a police search of the Budget Rent-A-Van.
As a result of the receipt of this information, Officer Diller, an agent from the Office of the Attorney General, obtained a search warrant to recover the marijuana allegedly located at the storage facility. Upon execution of the warrant, officers discovered a large, black storage container smelling strongly of marijuana, but otherwise empty. The officers were not successful in recovering any quantity of the drug.
While Agent Diller was executing the warrant for the storage facility, Officer Troutner, another agent from the Office of the Attorney General, conducted a search of the Budget Rent-A-Van. The search of the van revealed what appeared to be several wrapped Christmas gifts. In the course of the search, Mrs. Myers, who was present throughout the search, identified a large, gift-wrapped box and indicated that the box contained marijuana. When the investigating officers opened the package, they discovered vegetable material surrounded with contact paper. Under the contact paper were layers of black pepper and baking soda. Preliminary field testing on the vegetable substance revealed the package contained marijuana.
In addition to the testing performed at the scene of the Budget Rent-A-Van search, the vegetable material was subjected to testing at the Pennsylvania State Police Lab in Harrisburg [which confirmed that the vegetable substance was marijuana].

(Slip Ops. [in both cases], Hoffer, J., 10/2/95, pp. 1-4; citations and footnote omitted.)

At this point, the facts of the cases diverge and we return to the trial court’s recitation as relevant to Dean and Deborah Myers, separately:

In light of the previously mentioned scientific evidence and self-inculpatory statements, [Dean Myers] was charged with four counts of possession with the intent to deliver a Schedule I controlled substance. Count A-I arose from the March 16 incident and involved the marijuana found in the Budget Rent-A-Van and the marijuana placed in the storage shed. Counts A-II, A-III, and A-IV arose from [Dean Myers’s] inculpatory statements, elicited during the interview at the Lemoyne Police Department, indicating that, on at least three previous occasions, he had travelled to California and had returned to central Pennsylvania with various quantities of marijuana. Finally, [Dean Myers] was charged with one count of criminal conspiracy.
On March 27,1995, a jury trial commenced in this matter, and the Commonwealth filed a notice of mandatory sentence with regard to Counts A-I through A-IV. On March 28, 1995, the jury found [Dean Myers] guilty on all counts, and on April 24, 1995, [he] appeared for sentencing. With regard to Count A-I, this Court found that, on March 16, 1995, [Dean Myers] transported a quantity in excess of ten pounds of marijuana into Pennsylvania. Having found that the quantity of contraband in question exceeded ten pounds, this Court, in accordance with the mandatory sentencing procedures set forth in 18 Pa.C.S.A. § 7508(a)(l)(ii), sentenced [Dean Myers] to imprisonment in the State Correctional Institution for a period of not less than three years nor more than five years. With regard to Counts A-II through A-IV, this Court again imposed the mandatory minimum, and again sentenced [Dean Myers] to a period of incarceration of not less than three years nor more than five years. The sentencing order indicates that these sentences were to run concurrently.

(Slip Op. at 4-6; citations omitted.)

As to Deborah Myers, the trial court stated as follows:

Deborah Myers was charged with one count of possession with the intent to deliver a controlled substance and one count of criminal conspiracy. On March 27, 1995, a jury trial commenced in this matter, and the Commonwealth filed a notice of mandatory sentence with regard to the possession with intent to deliver charge. On March 28, 1995, the jury found [Deborah Myers] guilty on both counts, and on June 20, 1995, [she] appeared for sentencing.
With regard to the possession count, this Court sentenced [Deborah Myers] to undergo imprisonment in a State Correctional Institution for a period of not less than one year nor more than five years. This sentence constitutes the mandatory minimum with regard to the possession of two to ten pounds of marijuana.

(Slip Op. at 5; citations omitted.) Thus, although a similar factual predicate underlies the convictions in both cases, Dean Myers was sentenced to the mandatory minimum for possession of more than ten pounds of marijuana, while Deborah Myers was sentenced to the mandatory minimum for possession of two to ten pounds of marijuana.

On appeal, Dean Myers claims the record does not support the trial court’s conclusion that he possessed in excess of ten pounds of marijuana. As to Deborah Myers, the Commonwealth appeals on the basis that the sentence was illegal because the record clearly demonstrated that Deborah Myers possessed at least ten pounds of marijuana and there was no evidence to support the sentencing court’s finding that she possessed only two to ten pounds.

Since both appeals allege error in sentencing, we note initially that the Myerses were sentenced pursuant to the mandatory minimum sentence provisions of 18 Pa.C.S. § 7508, which provides in pertinent part:

§ 7508. Drug trafficking sentencing and penalties
(a) General rule. — Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
(1) A person who is convicted of violating section 13(a)(14), (30) or (37) of the April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, where the controlled substance is marijuana shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
(i) when the amount of marijuana involved is at least two pounds, but less than ten pounds, or at least ten live plants but less than 21 live plants; one year in prison and a fíne of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: two years in prison and a fine of $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity;
(ii) when the amount of marijuana involved is at least ten pounds, but less than 50 pounds, or at least 21 live plants but less than 51 live plants; three years in prison and a fine of $15,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: four years in prison and a fine of $30,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity[.]

Id.

As to the stage of judicial proceedings at which the applicability of these provisions is determined, section 7508(b) states:

(b) Proof of sentencing. — Provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

Id.

In imposing sentence, the court’s determination must not be disturbed absent a manifest abuse of discretion. Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980). An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, bias or ill will, as shown by the evidence of record, discretion is abused. Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984).

Turning first to Dean Myers’s appeal, he claims that as to Count I (arising from the drugs recovered from the Rent-A-Van), the affidavit of probable cause indicated that the package seized contained only 4.5 pounds of marijuana, whereas the subsequent testing at the State Police laboratory revealed 10.04 pounds of marijuana. Thus, according to Myers, this conflict left the trial court without sufficient evidence to sentence Myers to the mandatory minimum for possession of more than ten pounds of marijuana under section 7508(a)(l)(ii). We reject this claim.

Our review of the record indicates that the Commonwealth established, well beyond the preponderance of evidence contemplated by section 7508(b), that Dean Myers possessed in excess of ten pounds of marijuana. At trial, the Commonwealth presented the testimony of Beverly Beshore-Strohm, a forensic scientist at the Pennsylvania State Police Lab in Harrisburg who has conducted more than ten thousand drug analyses, including the one at issue (N.T., 3/27/95, p. 34). She confirmed that the substance recovered from the Rent-A-Van driven by Myers was in fact marijuana (N.T. at 26, 28). Further, she testified that she utilized a Metier top-loading balance in order to determine that the marijuana weighed ten pounds and two-third ounces (N.T. at 23-25). As to the accuracy of the scale, Beshore-Strohm testified that it was “brand new basically” (N.T. at 35), and had been calibrated prior to every use with an internal calibrating device and on a yearly basis by the manufacturer. Id. Finally, she testified that even giving Myers the benefit of the scale’s one-gram variation, the marijuana nonetheless weighed approximately ten pounds and eighteen grams (N.T. at 25.)

In his brief, Myers does not directly challenge this clear and convincing scientific testimony as to the amount of marijuana he possessed. Rather, he suggests that the amount of drugs somehow increased by the time they “were turned over to the Pennsylvania State Police Laboratory, [which] indicated that the drugs seized weighed ... right over the ten pound limit which would subject the defendant to a mandatory sentence.” (Appellant’s brief, p. 6.) Appellant does not advance this suggestion any further, other than to note “it is reasonable to infer that the physical weight of evidence — especially that of drugs seized — would be a ‘condition’ that must be unimpaired when- surrendered to the court.” (Appellant’s brief at 8.) We reject this thinly-veiled and completely unsupported allegation of police tampering.

The 4.5 pounds of marijuana indicated on the affidavit of probable cause was based solely on what Myers had told police he thought was the weight of the package (N.T. at 117). In fact, as is often the case, the officer who obtained the warrant had not even seen the package at the time he sought the warrant. Id. Myers’s erroneous guess may not now serve to undermine competent, scientific evidence that the marijuana weighed in excess of ten pounds, much less support an allegation of police or prosecutorial misconduct. Particularly in conjunction with Myers’s admission that the package seized was part of 33.25 pounds of marijuana he imported from California, the scientific evidence presented was clearly sufficient to support sentencing under section 7508(a)(1)(ii). Dean Myers’s first claim fails.

Next, Myers claims the evidence as to the weight of the marijuana was insufficient to support the concurrent mandatory sentences imposed on Counts II-IV, which were based upon his admission that on three prior occasions he transported marijuana from California. The sum of his argument on this point, appearing in the Conclusion section of his brief, reads as follows:

For Counts II, III, and IV, no marijuana was ever seen, seized, weighed, or otherwise tested by the Commonwealth. The only evidence of this alleged marijuana at issue in these three counts was elicited through the testimony of -witnesses at trial, and through Defendant’s testimony of what he was told existed. Defendant had no independent knowledge of the weight of this alleged marijuana.

(Appellant’s brief at 10.) This claim also fails.

Initially, we reject Myers’s claim that drugs must be “seen, seized, weighed or otherwise tested” before their weight can be established under section 7508. Here, Myers not only admitted to the precise amount of marijuana underlying Counts II-IV, but the conspiracy to import that marijuana was clearly established by independent evidence at trial, including storage receipts and shipping records in the name of Myers’s supplier in California and the fictitious business name used by Myers. The dates on these receipts and records also correspond to the dates on which Myers admittedly transported the drugs from California. Keeping in mind the lower preponderance of the evidence standard utilized under the mandatory sentencing guidelines, we find the court did not abuse its discretion in imposing sentences under Counts II-IV consistent with the amount of marijuana admittedly transported by Myers, where that transportation was established by independent evidence at trial. Thus, the argument is -without merit.

Turning to the issues concerning Deborah Myers, we note the Commonwealth’s claim that the sentencing court erred in failing to impose sentence upon Mrs. Myers consistent with possession in excess of ten pounds of marijuana. Applying the abuse of discretion and preponderance of the evidence standards set forth above, we agree with the Commonwealth. The evidence of record simply does not support the sentencing court’s finding that Mrs. Myers possessed less than ten pounds of marijuana. Initially, it must be remembered that the possession charge against Mrs. Myers “was limited to the contraband discovered in the Budget Rent-A-Van” (Slip Op. at 6), namely, the single gift-wrapped package containing marijuana which was subsequently determined to weight 10.04 pounds. In her trial testimony, Mrs. Myers not only denied involvement in her husband’s drug operation (N.T. at 187), but also repeatedly and emphatically denied any knowledge of the contents of the package (N.T. at 181-182, 190-206). To the contrary, Officers Henry Troutner, Ronald Diller and James Heck all testified that Mrs. Myers directed them to the package and admitted it contained marijuana long before it was even opened (N.T. at 54, 87, 215).

This conflicting testimony was ultimately resolved by the jury against Mrs. Myers. Had the jury believed her testimony that she knew nothing of either the drug operation or the presence of marijuana, it could not have convicted her of possession or conspiracy. Thus, the question of whether or not Mrs. Myers was an unwitting bystander to crimes committed by her husband or a full participant was fairly and finally adjudicated against her by the finder of fact at trial. In short, Mrs. Myers either did or did not possess the gift-wrapped package and since the jury found as a matter of fact that she did, the court at sentencing may not disregard this adjudicated fact in order to fashion a more lenient sentence than that required by the evidence presented. 18 Pa.C.S. § 7508(b). (“The [sentencing] court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence if this section is applicable.”)

As noted above, Ms. Beshore-Strohm testified in detail at trial as to the methods used in determining that the marijuana contained in the package that Mrs. Myers was convicted of possessing weighed 10.04 pounds. Ms. Beshore-Strohm stated that the scale in question was infrequently used and “brand new basically.” (N.T. at 35.) She further testified that the scale was calibrated prior to every use by means of an internal calibrating device and also calibrated yearly by the manufacturer. Id. Finally, she stated that even giving Mrs. Myers the benefit of the scale’s one-gram variation, the drugs still weighed no less than 18 grams over 10 pounds (N.T. at 25). Standing against this clear and convincing testimony was the fact, elicited on cross-examination by Mrs. Myers’s counsel, that Ms. Beshore-Strohm did not also place a known weight on the scale to again verify its accuracy (N.T. at 38). Nothing else as to the accuracy of the scale was introduced by the defense.

At sentencing, the extent of defense counsel’s argument as to the accuracy of the scale was as follows:

There was testimony concerning the weight scale that was used. I do not believe that it was calibrated.

(N.T., 6/20/95, p. 4.) The prosecutor responded by recalling Ms. Beshore-Strohm’s testimony and noted that the scale’s variation did not reduce the amount of marijuana to under ten pounds (N.T. at 5). Nonetheless, the sentencing court held as follows:

The district attorney is asking for a mandatory sentence because the weight of the marijuana just edges the scale over ten pounds. I’m going to give you the benefit of the doubt on that, and whatever happens, happens.

(N.T. at 11.) The court then sentenced Mrs. Myers consistent with possession of two to ten pounds of marijuana under section 7508(a)(l)(i).

Clearly, the mandatory sentencing guidelines, by imposing a preponderance of the evidence standard, preclude a sentencing court from granting a defendant “the benefit of the doubt” in the absence of any evidence justifying that doubt. Mrs. Myers’s counsel offered no evidence that the scale used by Ms. Beshore-Strohm was defective, other than to suggest an additional method of verifying the accuracy of the scale. The sentencing court’s finding that this suggestion, standing against the clear, convincing and thorough testimony of Ms. Beshore-Strohm, constituted a preponderance of the evidence, operated to override and misapply the evidentiary standard of the mandatory sentencing guidelines. We are simply unable to agree that defense counsel’s unpersuasive suggestion that Ms. Beshore-Strohm failed to utilize a redundant method of calibration outweighed the ample testimony supporting the Commonwealth’s case. Thus, the sentencing court abused its discretion in failing to impose sentence consistent with the preponderance of the evidence presented at trial and sentencing.

Finally, it must be reemphasized that Mrs. Myers was convicted of possessing a single, gift-wrapped package of marijuana which was subsequently determined to weigh in excess of ten pounds. Since the package as seized was not capable of apportionment, Mrs. Myers either possessed the entire package or she did not and, in light of the jury’s verdict, the sentencing court erred in redetermining that she possessed only two to ten pounds, and not the entire 10.04 pounds of the package. Our conclusion is supported by relevant case law.

For instance, in Commonwealth v. Jones, 413 Pa.Super. 482, 605 A.2d 825 (1992), appellee was convicted of possession with intent to deliver following the recovery of 26.401 grams of cocaine from her home. Based on the fact that she possessed in excess of 10 grams, appellee was originally sentenced to the mandatory three to six year sentence under section 7508(a)(3)(ii). Thereafter, reconsideration was granted and the court found that appellee constructively possessed only the 2.722 grams found in her bedroom, rather than the total 26.401 grams found in her house. Thereafter, appellee was resentenced under the more lenient mandate of section 7508(a)(3)(i). The Commonwealth appealed and we vacated and remanded, holding as follows:

At sentencing, when applying 18 Pa.C.S.A. § 7508(a)(3)(ii), the court was required only to determine whether the Commonwealth established by a preponderance of the evidence that cocaine which appellee possessed weighed at least ten grams and less than one hundred grams. Certainly, the Commonwealth sustained their burden of proof through expert testimony as to the exact weight of the cocaine in question.... ‘[0]nce a party is found guilty, the adjudicated elements of the offense must be fully considered and cannot be disregarded when fashioning a sentence.... The sentencing court is not allowed to rewrite the script....’ Instantly, although adjudicating appellee guilty of possessing cocaine with intent to deliver, the lower court decided to ‘rewrite the script’ by finding that appellee did not possess all of the cocaine found in her residence. This type of reexamination of the facts at the time of sentencing in order to permit the court to impose a more lenient sentence ignores its legislative mandate and will not be condoned.

Id. at 486-487, 605 A.2d at 827-828 (citation omitted).

Similarly, in Commonwealth v. Mayes, 436 Pa.Super. 1, 647 A.2d 212 (1994), 2.34 grams of crack cocaine, packaged in 68 vials, was seized from appellee and he was convicted of possession with intent to deliver. At sentencing, defense counsel asked the court to consider some portion of the 2.34 grams as a personal-consumption amount, so as to avoid the mandatory sentence required for possession of two or more grams under section 7508(a)(3)(i). The trial court agreed, and held:

I find as a fact that ... you were a user as well as [a seller of cocaine].
I further find as a matter of fact neither beyond a reasonable doubt nor beyond a preponderance that the amount which was possessed with the intent to deliver was necessarily in excess of two grams.

Id. at 4, 647 A.2d at 214. The court then sentenced appellee to a more lenient sentence than that required by section 7508(a)(3)(i). Id.

In reversing and remanding for resentencing consistent with the mandatory sentencing guidelines, we stated:

In the instant case the uncontroverted evidence introduced at trial and at sentencing revealed that appellee possessed 2.34 grams of crack cocaine.... The trial court convicted appellee of possession of crack cocaine, and, possession with intent to deliver crack cocaine. ‘Once a party is found guilty, the adjudicated elements of the offense must be fully considered and cannot be disregarded when fashioning a sentence. The sentencing court is not allowed to rewrite the script.’ At sentencing, the trial court cannot reassess facts determined prior to a finding of guilt of possession with intent to deliver a controlled substance.
The trial court has no choice but to apply § 7508; it cannot proceed to reevaluate the facts (i.e., that appellee possessed sixty-eight vials of crack cocaine with a combined weight of 2.34 grams of crack cocaine) it determined at trial when it found appellee guilty of possession with intent to deliver. Since the trial court failed to apply § 7508 we must vacate appellee’s sentence and remand this case for resentencing in accordance with that mandated by 18 Pa.C.S. § 7508(a)(3)(i).

Id. at 6-10, 647 A.2d at 215-217 (citations and footnote omitted). See also Commonwealth v. Rosario, 400 Pa.Super. 505, 583 A.2d 1229 (1990), vacated on other grounds, 535 Pa. 282, 635 A.2d 109 (1992) (“We hold that once a party is found guilty, the adjudicated elements of the offense must be fully considered and cannot be disregarded when fashioning a sentence.”).

Instantly, Mrs. Myers was convicted of possessing a single package of marijuana which was determined at trial by compelling evidence to weigh 10.04 pounds. In imposing a more lenient sentence, the court disregarded this adjudicated fact and improperly “rewrote the script” to include possession of only two to ten pounds of marijuana. Since the court did not impose the mandatory minimum sentence required for Mrs. Myers’s crime, we vacate the judgment of sentence and remand for resentencing in accordance with 18 Pa.C.S. § 7508(a)(1)(ii). Mayes, Jones, Rosario, supra; see also Commonwealth v. Logan, 404 Pa.Super. 100, 590 A.2d 300 (1991) (lower court has no discretion to impose less than the mandatory minimum sentence, and if it does, appellate court will vacate and remand for resentencing); 18 Pa.C.S. § 7508(d).

Based on the foregoing, we affirm Dean Myers’s concurrent three to five-year judgments of sentence. However, as to the Commonwealth’s appeal, we vacate Deborah Myers’s one to five-year sentence and remand for resentencing consistent with section 7508(a)(l)(ii) and this Opinion.

Jurisdiction relinquished.

      . 35 P.S. § 780-113(a)(30).

      . 18 Pa.C.S. § 903.

      . While Myers does not offer any evidence in support of his allegation, we note that the chain of custody was clearly established at trial via the testimony of Agent Henry Troutner, who seized the marijuana (N.T. at 55), Agent Ronald Diller, who delivered the marijuana for testing (N.T. at 114), and Miss Beshore-Strohm, who analyzed the marijuana (N.T. at 18). This testimony indicates that the marijuana was at all times properly secured and accounted for.

      . Myers does not challenge the introduction of his admission at trial. The admission indicated that on three previous occasions, between the winters of 1993 and 1994, Myers had transported into Pennsylvania 30 pounds, 20.5 pounds and 26.5 pounds of marijuana, respectively (N.T. at 93-95).

      . Although we have found no case applying the principle to the weight of illegal drugs, it is clear that the identity of drugs may be established by circumstantial evidence, without chemical analysis. See e.g. Commonwealth v. Stasiak, 305 Pa.Super. 257, 451 A.2d 520 (1982); Commonwealth v. Leskovic, 227 Pa.Super. 565, 307 A.2d 357 (1973); Commonwealth v. Aikens, 179 Pa.Super. 501, 118 A.2d 205 (1955).

      . The diametric opposition of this conflicting testimony was further emphasized when, on cross-examination, Mrs. Myers repeatedly accused the officers of "lying.” (N.T. at 190, 193, 195, 196, 205.)

      . 18 Pa.C.S. § 7508(d) provides:
      (d) Appellate review. — If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    681 A.2d 1357
    COMMONWEALTH of Pennsylvania v. Brian DRAKE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 20, 1996.
    Filed July 30, 1996.

      James A. Zurick, Shamokin, for appellant.
    Robert B. Sacavage, District Attorney, Mt. Carmel, for Commonwealth, appellee.
    Before KELLY, EAKIN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Appellant, Brian Drake, appeals from the judgment of sentence entered in the Court of Common Pleas of Northumberland County on November 14,1995. We affirm.

The trial court adequately set forth the facts of this case as follows:

[O]n October 18, 1994, State Trooper McGinley [and] Trooper Foulds[ ] were on routine patrol[ ] when they observed [appellant] traveling in the opposite direction in a motor vehicle lacking an inspection sticker. The Troopers made a U-turn, by which time [appellant] had pulled into a private driveway. [Appellant] was unable to produce his driver’s license [upon request and his] speech was confused. Additionally, [he] either continuously paced in a nervous manner or leaned on his vehicle. [Appellant] did not stand still during the Trooper’s questions concerning the missing inspection sticker. Trooper McGinley then observed [appellant’s] glassy eyes and [noticed a] strong odor of alcohol. Trooper McGinley asked [appellant] to recite the alphabet, which [he] was unable to accomplish. [Appellant] was then asked to touch each finger in succession with his thumb as he counted to four. [Appellant] failed to successfully accomplish this task.
The Trooper then administered the standardized field sobriety tests. [Appellant] failed both the nine step walk and turn as well as the one leg stand. At this time [appellant] was arrested for DUI. An empty cooler was discovered in the back seat of the vehicle as well as an open can of beer on the floor in front of the passenger [seat]. While in the back seat of the Trooper’s vehicle, [appellant] was Mirandized and read the Implied Consent Warning. [Appellant] initially replied that he would take a breath test. The Trooper than [sic] proceeded to ask the questions supplied on a Standardized Intoxication Report. Included on the form is the question whether the driver was now under the influence of alcohol. [Appellant] replied in the affirmative. Later, at the Selinsgrove Barracks, [appellant] refused the breath test.

Trial court opinion, 2/29/96 at 1-2 (footnote omitted). Appellant’s refusal to submit to a chemical alcohol test on the date of his arrest resulted in suspension of his driver’s license for a period of one year. Following trial, appellant was found guilty on September 22,1995, of driving under the influence of alcohol, restriction on alcoholic beverages, and failure to carry a driver’s license. He was thereafter sentenced to partial confinement for a period of 40 days to 23 months. Additionally, appellant was ordered to complete an alcohol safety program and to pay various costs and fines. This timely appeal, setting forth five issues for our review, followed.

At trial, appellant took the stand on his own behalf and recounted his activities on the day of his arrest. On cross-examination, Assistant District Attorney William Cole asked appellant “did you pull into that [private] driveway because at that time you were drinking and you wanted to avoid a confrontation with the police?” N.T., 9/22/95 at 109. In response, appellant testified that he had stopped only to see if a truck was for sale and that, earlier in the day, he had similarly gone to the residence of an individual named Joseph Remash to inspect and possibly purchase a truck which was for sale. Id. at 94, 95, 109. In his first allegation of trial court error, appellant claims that the trial court improperly precluded him from presenting the testimony of Mr. Remash to corroborate his explanation for stopping in the driveway immediately before his arrest. Further, appellant claims that Mr. Remash could have testified that he was not intoxicated at the time of his visit to Mr. Remash’s home.

Our review of the record establishes that the proffered testimony was merely partially corroborative of appellant’s statements since Mr. Remash could only verify that appellant had come to inspect his truck during the month of October but could not recall the exact date. See id. at 51-53. Further, such testimony would have been, at most, cumulative of appellant’s own representations at trial. Assuming, arguendo, that the trial court abused its discretion in not admitting the testimony of Mr. Remash, any prejudice that appellant may have suffered would, therefore, have been de minimus in light of the overwhelming evidence presented against him. Accordingly, we find that such an error would have been harmless. See Commonwealth v. Foy, 531 Pa. 322, 326-28, 612 A.2d 1349, 1352 (1992). Appellant’s first claim is, therefore, meritless.

Next, appellant claims that the trial court erred in allowing the introduction at trial of two sobriety tests. Specifically, appellant claims that the tests requiring him to recite the alphabet and count his fingers are inadmissible since the measure of his performance on such is not determinable based upon objective criteria but, instead, is within the discretion of the observing police officer.

Recently, in Commonwealth v. Ragan, 438 Pa.Super. 505, 652 A.2d 925 (1995), we reviewed the admissibility of the results of the “finger to nose” sobriety test as well as the “one leg stand” and “walking in a straight line” tests. In finding the results of all three tests to be admissible we stated that:

The three sobriety tests, which we here review, are grounded in theories which link an individual’s lack of coordination and loss of concentration, with intoxication. This interrelationship is also recognized in what is generally accepted as the common indicia of intoxication, within the understanding and experience of ordinary people. See Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993), appeal denied, 537 Pa. 638, 644 A.2d 161 (1994), cert. denied, Bowser v. Pennsylvania, — U.S. —, 115 S.Ct. 186, 130 L.Ed.2d 120 (1994). In fact, non-expert testimony is admissible to prove intoxication where such testimony is based upon the witness’ observation of the defendant’s acts and speech and where the witness can opine as to whether the defendant was drunk. Id.

Ragan, 438 Pa.Super. at 511-12, 652 A.2d at 928 (emphasis added). We find that the challenged tests requiring appellant to count his fingers back and forth with his thumb as well as recité the alphabet are admissible under this standard. Both tests allow an ordinary observer to form an opinion as to whether an individual is intoxicated based upon that individual’s coordination and concentration as demonstrated by his or her acts and speech. Moreover, our Supreme Court has explicitly allowed the admission into evidence of the results of a field test designed to determine whether a suspect is intoxicated by testing his or her ability to recite the alphabet. Commonwealth v. Peth, 522 Pa. 136, 560 A.2d 139 (1989). Accordingly, appellant’s second contention is clearly meritless.

Third, appellant claims that the trial judge erred in instructing the jury as follows:

Now, the Commonwealth argues that the testimony tended to show that the Defendant refused to give a sample of his breath indicates that he was conscious that he was guilty of Driving Under the Influence.

N.T., 9/22/95 at 128-9. Appellant argues that, contrary to this instruction, the Commonwealth did not argue, at trial, that appellant’s failure to take the breath test was indicative of a guilty conscience.

Initially, we note that the trial judge followed the challenged comments with the following statement:

The defense counsel argues that this evidence means no such thing. If you believe that the Defendant was asked for and refused to give samples of his breath for testing, you may consider that fact along with all the other relevant evidence when you are deciding whether the Defendant was under the influence of alcohol. Again, as I said, give the Defendant’s refusal whatever weight and meaning you think it deserves.

Id. at 129. Appellant’s refusal to submit to chemical testing may properly be introduced into evidence. 75 Pa.C.S.A. § 1547(e); Commonwealth v. McConnell, 404 Pa.Super. 439, 591 A.2d 288, alloc. denied, 529 Pa. 632, 600 A.2d 952 (1991). Consistent with this principle, the Commonwealth elicited extensive testimony from Trooper McGinley regarding appellant’s initial agreement to take a breath test and later refusal to do so. See N.T., 9/22/95 at 39, 49, 56-59. Clearly, this line of questioning gave rise to the implication that appellant had changed his mind regarding the breath test as a result of his consciousness of his guilt. Pursuant thereto, the trial judge instructed the jury as follows:

Now, in any criminal proceeding in which the Defendant is charged with Driving Under the Influence, the fact that the Defendant refused to submit to chemical testing as required may be introduced into evidence along with other testimony concerning the circumstances of the refusal. No presumptions shall arise from this evidence. But it may be considered along with other factors concerning the charge. Consider all the relevant evidence when you are deciding whether the Commonwealth has proven beyond a reasonable doubt that the Defendant was under the influence of alcohol to a degree that made him incapable of safe driving.

Id. at 128. The judge’s instructions on the issue of the breath test, viewed as a whole, adequately, accurately, and clearly presented the law to the jury and were sufficient to guide the jury in its deliberations. Accordingly, the challenged instruction was not inappropriate and we find no error on the part of the trial court as alleged. See Commonwealth v. RosarioHernandez, 446 Pa.Super. 24, 666 A.2d 292 (1995).

Appellant next claims that the trial court erred in precluding him from introducing into evidence a student manual relating to standardized field sobriety testing published by the Commonwealth of Pennsylvania Department of Education. Appellant sought admission of this manual in order to impeach the testimony of Trooper McGinley by establishing that he had improperly administered both the “one leg stand” and the “walk and turn” sobriety tests. Appellant fails, however, to set forth the manner in which he believes that the Trooper erred in administering the questioned sobriety tests and also how the manual would have been relevant in establishing such. Instead, appellant makes the bald allegation that it was error for the trial court to fail to admit the manual into evidence. We decline to become appellant’s counsel and will not, therefore, consider issues, such as these, which are not fully developed in his brief. See Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150 (1982).

Finally, appellant contends that his September 22, 1995, convictions violate the United States Constitution and the Pennsylvania Constitution. Specifically, appellant claims that the suspension of his driver’s operating privileges constituted punishment and that it was violative of double jeopardy principles to charge him further and impose additional penalties. We disagree.

Appellant claims double jeopardy protection against multiple prosecution and punishment for the same crime. See Commonwealth v. Micklos, 448 Pa.Super. 560, 672 A.2d 796 (1996). Obviously, in addressing appellant’s claim, we must, at the outset, determine whether the license suspension and subsequent criminal prosecution relate to the same offense. Since we find that they do not, appellant’s convictions are not precluded as he alleges. Id.

In considering whether crimes are the same under the double jeopardy clause, this Commonwealth has long followed the “same-elements” test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Commonwealth v. Caufman, 541 Pa. 299, 303, 662 A.2d 1050, 1052 (1995) (quotations omitted). This test “requires a comparison of the elements of the offenses to determine whether each offense requires proof of a fact which the other does not.” Id. See also Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491 (1995); Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984). Further, “mere overlap on proof between two prosecutions does not establish a double jeopardy violation.” Id. In applying this precedent to the instant case, it is evident that the challenged charges of driving under the influence of alcohol, restriction on alcohol beverages, and failure to carry a driver’s license are not barred, on grounds of double jeopardy, by the previous suspension of appellant’s driving privileges.

The suspension of driving privileges may result from various violations of the Motor Vehicle Code. See, e.g., 75 Pa. C.S.A. §§ 1532, 1547. Presently, appellant’s license was suspended pursuant to 75 Pa.C.S.A. § 1547(b) under which a motor vehicle operator’s license may be suspended upon a showing by the Department of Transportation that: (1) the defendant was placed under arrest, (2) he was charged, -with the operation of a motor vehicle while under the influence of intoxicating liquor, (3) he was requested to submit to a breathalyzer test, and (4) he refused to comply with the test. Patterson v. Com. Dept. of Trans., 136 Pa.Commw. 49, 582 A.2d 700 (1990); Grabish v. Commonwealth, 50 Pa.Commw. 246, 247-49, 413 A.2d 431, 432 (1980). Suspension under this section requires proof of elements not required to be proven to establish a violation for those offenses for which appellant was convicted on September 22, 1995. For example, section 1547(b) requires a showing that appellant was requested to submit to chemical testing and, also, that he refused to do so. Further, the crimes appellant alleges are precluded on the basis of double jeopardy all require proof of facts which section 1547(b) does not. A conviction for driving under the influence of alcohol requires proof that appellant drove, operated, or physically controlled the movement of a vehicle while actually under the influence of alcohol. 75 Pa.C.S.A. § 3731. In order to establish a violation of restriction on alcoholic beverages, proof is required of the fact that an individual consumed alcohol in a vehicle while it was in operation. 75 Pa.C.S.A. § 3715(a). Finally, appellant’s conviction for failure to carry a driver’s license necessitates a showing that the defendant failed to possess a driver’s license when driving his vehicle. 75 Pa.C.S.A. § 1511(a). Clearly, therefore, appellant’s double jeopardy challenge is meritless. Caufman, supra.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. § 1547(b).

      . 75 Pa.C.S.A. § 3731(a)(1).

      . 75 Pa.C.S.A. § 3715(a).

      . 75 Pa.C.S.A. § 1511(a).

      . The trial court order also directs the Department of Transportation not to restore, once suspended, appellant's motor vehicle operating privileges until he has satisfied all of the financial obligations imposed.

      . In so finding, we are relieved of the necessity to address the issue of whether the suspension of appellant's license constitutes criminal punishment subject to double jeopardy principles. While we note that the suspension of driving privileges pursuant to 75 Pa.C.S.A. § 1547(b) is a civil penalty (Commonwealth v. Wolf, 534 Pa. 283, 632 A.2d 864 (1993); Patterson v. Com. Dept. of Trans., 136 Pa.Commw. 49, 582 A.2d 700 (1990)), we recognize that the question of whether such a civil sanction is tantamount to criminal punishment for purposes of a double jeopardy is a separate issue. See generally United States v. Ursery, - U.S. -, 116 S.Ct. 2135, 135 L.Ed.2d 549 (U.S.1996); Krall v. Pennsylvania, 903 F.Supp. 858 (E.D.Pa.1995) ("While [appellant] may detect the ‘sting of punishment’ in the suspension of his license, the suspension does not constitute punishment for the purposes of analysis under the Double Jeopardy Clause.").


author: CIRILLO, President Judge Emeritus: DEL SOLE, Judge,

text:
    681 A.2d 1362
    Christopher MICHAELS, Appellant, v. Michael J. BARRASSE, District Attorney of Lackawanna County, Appellee.
    Superior Court of Pennsylvania.
    Argued April 30, 1996.
    Filed Aug. 9, 1996.

      Christopher P. Cullen, Dunmore, for appellant.

      William P. O’Malley, Assistant District Attorney, Scranton, for appellee.
    Before CIRILLO, President Judge Emeritus, DEL SOLE, J. and CERCONE, President Judge Emeritus.
   CIRILLO, President Judge Emeritus:

Christopher Michaels appeals from an order entered in the Court of Common Pleas of Lackawanna County affirming the District Attorney’s denial of Michaels’ private criminal complaints. We remand.

During 1992, Robert Ruddy was employed by the Borough of Dunmore Police Department as a part-time police officer. Despite his part-time status, Ruddy consistently worked full-time shifts. In 1994, Joseph Tompdo, President of the Dun-more Borough Council, received a letter from the union representative for the Dunmore Police Association, Attorney Robert Sayers, requesting the appointment of Ruddy to full-time status. Attorney Sayers cited as authority the Dunmore Police Collective Bargaining Agreement. Attorney Sayers sent a second, similar letter citing the bargaining agreement’s paragraphs relating to compensation and benefits for full-time police officers.

Ruddy’s employment status was discussed at a public Dun-more Borough Council meeting. The Borough Solicitor advised the council members that the Borough would probably lose any arbitration proceedings if it did not elevate Ruddy’s status to full-time. Based on the Solicitor’s advice, the council members voted to appoint Ruddy to full-time police officer.

As a result of Ruddy’s appointment to full-time status, Appellant Michaels filed five private criminal complaints alleging that the votes cast by the council members were contrary to the provisions of the Borough Code. Specifically, Michaels alleged that on the Dunmore Civil Service Commission’s examination, Ruddy scored a 71.25% and was ranked 61st among all of the test takers. Michaels contends that Ruddy was appointed over James A. Giles, a veteran who scored 100% and ranked first, and Michaels himself, who scored 93.12% and ranked third.

After an investigation, the District Attorney’s office disapproved the private criminal complaints, concluding that there was “insufficient evidence” to support Michaels’ allegations of criminal activity by the council members. Michaels subsequently filed a petition with the trial court for the approval of the private criminal complaints. The Honorable Chester T. Harhut conducted a conference in chambers regarding Michaels’ petition. Judge Harhut entered an order affirming the District Attorney’s decision to disapprove the five criminal complaints. This appeal followed.

Michaels raises the following issues for our consideration:

(1) Did the trial court err as a matter of law in failing to apply the standard of review enunciated in Commonwealth v. Jury, 431 Pa.Super. 129, 636 A.2d 164 (1993) when affirming the decision of the District Attorney’s office to disapprove for “insufficient evidence” each of the complaints filed by Michaels pursuant to Pa.R.Crim.P. 106?
(2) Is the trial court’s decision to affirm the District Attorney’s disapproval of Michaels’ complaints impermissibly based on hearsay and not supported by substantial evidence?
(3) Did the trial court err as a matter of law in not finding that each of Michaels’ complaints set forth the essential elements of the offense established at section 1194 of the Borough Code?

The authority that establishes the proper procedure for addressing private criminal complaints is set forth in Pa. R.Crim.P. 106:

Rule 106. Approval of Private Complaints
(a) When the affiant is not a law enforcement officer and the offense(s) charged include(s) a misdemeanor or felony which does not involve a clear and present danger to any person or the community, the complaint shall be submitted to an attorney for the Commonwealth, who shall approve or disapprove it without unreasonable delay.
(b) If the attorney for the Commonwealth
* * * * * *
(2) Disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter the affiant may file the complaint with a judge of a Court of Common Pleas for approval or disapproval[.]

Pa.R.Crim.P. 106. Here, in compliance with Rule 106, the District Attorney set forth on each complaint that there was “insufficient evidence” to sustain Michaels’ allegations. The District Attorney’s decision was based upon a legal evaluation of the sufficiency of the complaints; it was not a policy-based decision. Such a distinction becomes important when determining an appropriate standard of review for both the trial court and appellate court. See Commonwealth v. Benz, 523 Pa. 203, 565 A.2d 764 (1989) (plurality) (first case to distinguish between a prosecutorial decision that is based upon a policy determination and one that is based upon a legal evaluation of the sufficiency of the complaint).

Michaels relies upon this court’s decision in Commonwealth v. Jury, 431 Pa.Super. 129, 636 A.2d 164 (1993) in challenging the trial court’s standard of review. Jury has recently been the subject of much difference of opinion as reflected in two en banc plurality decisions decided by this court. Both of these cases, however, in discussing the appropriate standard of review, focused on the appropriate standard of review for the appellate court. Additionally, both cases involved a prosecutor’s decision based on policy, as opposed to a legal sufficiency determination. Nevertheless, in attempting to modify Jury, these cases touched upon a trial court’s role in reviewing a prosecutor’s decision to disapprove a private criminal complaint. In Commonwealth v. Brown, 447 Pa.Super. 454, 669 A.2d 984 (1995) (en banc), a plurality of this court stated:

[W]e recognize the need to distinguish between the standard of review to be used by the trial court and the appellate court. Jury incorrectly establishes that an appellate court directly reviews the prosecutor’s decision regarding a private criminal complaint. However, Rule 106 reserves this function to the court of common pleas. Thus, we must reject Jury’s standard and establish the following as the appropriate standard of review.
When a trial court is asked to review a prosecutor’s disapproval of a private criminal complaint, the trial court must first determine the rationale behind the prosecutor’s decision. If the prosecutor’s decision was based upon a legal evaluation of the sufficiency of the complaint, then the trial court must undertake a de novo review of the complaint to ascertain whether it establishes a prima facie cause of action. If, however, the prosecutor’s decision was based upon a policy determination that it would not be in the best interests of the Commonwealth to prosecute, then the trial court must defer to the prosecutor’s discretion absent a gross abuse of that discretion.
‡ ‡ ‡ ‡ ‡
When an appeal is brought from a common pleas court’s decision regarding the approval or disapproval of a private criminal complaint, an appellate court is limited to ascertaining the propriety of the trial court’s actions. Thus, our review is limited to determining whether the trial court abused its discretion or committed an error of law.

Id. at 466-67, 669 A.2d at 990 (emphasis added). Accord: Commonwealth v. McGinley, 449 Pa.Super. 130, 134-38, 673 A.2d 343, 345-46 (1996) (en banc) (plurality). We are persuaded by the rule set forth in Brown and McGinley and will be guided by such.

As the prosecutor’s decision was based upon a legal determination, Michaels is correct in his assertion that the trial court was required to review the appropriateness of such a decision in light of whether Michaels’ complaints established a prima facie case on the elements of the charge in question. In each of his complaints, Michaels claimed that the Borough Council members violated the civil service provisions of the Borough Code, namely, 53 Pa.S. §§ 46171-46195. Section 46194 states, in pertinent part:

Any councilman who, by his vote, causes to be appointed any person to the police force ... contrary to the provisions of this subdivision ... shall be guilty of a misdemeanor.

53 Pa.S. § 46194. Michaels notes in his complaints that Ruddy’s appointment was particularly in violation of sections 46181 (General provisions relating to examinations) and 46184 (Manner of filling appointments) of the Borough Code, and section 7104(b) of the Pennsylvania Veterans’ Preference Act (Preference in appointment or promotion). 51 Pa.C.S.A. § 7104(b).

At the conference before Judge Harhut, the prosecutor and Michaels’ counsel had the opportunity to present arguments advocating their respective positions. We. note that the law does not give a private complainant a right to an evidentiary hearing. See Commonwealth v. Eisemann, 276 Pa.Super. 543, 544 n. 4, 419 A.2d 591, 592 n. 4 (1980) (the court is not required to grant a hearing pursuant to Rule 106; the rule merely gives the private prosecutor the opportunity to have his complaint reviewed following an adverse decision by a district attorney). Thus, it was well within the trial judge’s discretion to conduct a conference to review the private criminal complaints.

While the trial court was not required to conduct a hearing on the record, it is necessary for this court, as a reviewing court, to examine the trial court’s reason(s) for its denial of the private criminal complaint. As stated earlier, our review is limited to determining whether the trial court abused its discretion or committed an error of law; we are limited to ascertaining the propriety of the trial court’s actions. Brown, supra; McGinley, supra. Thus, we are required to review the trial court’s de novo review of the complaint and its determination of whether a prima facie case was established. Brown, supra; McGinley, supra. Here, the trial court’s order did not contain sufficient information for an appropriate review by this court; it simply affirmed the district attorney’s disapproval without explanation. We, therefore, must remand this matter to the trial court for the preparation of an opinion in support of its order. Such a measure will enable this court to review the propriety of the trial court’s actions.

Remanded. Panel jurisdiction retained.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

Because I conclude the Majority has incorrectly equated lack of a prima facie case with a determination that there exists insufficient evidence to sustain a conviction, I must dissent.

Initially, I note that Appellant has improperly filed the instant petition. These proceedings are governed by Pennsylvania Rule of Civil Procedure 106, 42 Pa.C.S.A. Rule 106 requires that disapproved criminal complaints be brought before a common pleas court judge for review. Here, the individual complaints were not presented to the court, but rather, a petition naming the private affiant and the district attorney as parties was filed. On this basis, the trial court can be affirmed.

Additionally, I cannot agree with the Majority’s determination that the rule expressed in the plurality opinions of Commonwealth v. Brown, 447 Pa.Super. 454, 669 A.2d 984 (1995), and Commonwealth v. McGinley, 449 Pa.Super. 130, 673 A.2d 343 (1996) stating the standard of trial court review, is persuasive. In these two en banc cases, a majority of the judges participating disagreed with the proposed presumptive standard. Rather, I conclude that the standard of review as defined in Commonwealth v. Jury, 431 Pa.Super 129, 636 A.2d 164 (1993) remains the correct and current statement of the law.

A decision not to prosecute a private complaint, by a prosecutor for the reason a prima facie case is lacking, is a legal conclusion easily reviewed by the court. If the court concludes that sufficient facts are alleged which, if established, make out a prima facie case, it must direct the filing of the complaint.

However, a prosecutor’s determination that the evidence is insufficient to secure a conviction because proof of all elements of the charge may not be established beyond a reasonable doubt, is the exercise of prosecutorial discretion traditionally granted district attorneys in Pennsylvania.

The record certified to this court on appeal contains a statement by the district attorney that it was concluded as a result of an investigation, that the counsel members’ votes to hire a police officer without regard to the civil service list were based on the advise of the borough solicitor, thereby negating the requisite intent needed for a conviction. Further, the complaints were disapproved with the notation “insufficient evidence” not on the basis of no prima facie case. Under these circumstances, the decision not to prosecute was not an abuse of discretion. As we said in Commonwealth v. Metzker, 442 Pa.Super 94, 658 A.2d 800 (1995):

While we said in Jury the complainant is not required to prove the case beyond a reasonable doubt where disapproval is based on a legal assessment of the complaint, as a policy matter, a prosecutor can consider if a conviction is attainable. There the District Attorney concludes, based on investigation, that a conviction is doubtful or impossible, discretion can and should be exercised to refuse approval.

Viewing the nature of this case, and the district attorney’s analysis, I cannot agree that there was an abuse of prosecutorial discretion. Rather, I conclude the trial court correctly refused to direct prosecution.

      . The complaints consisted of an individual complaint against each of the five Borough council members who voted to appoint Ruddy.

      . The order states, in its entirety:
      Now, this 31st day of August, 1995, this Court affirms the District Attorney’s denial of the private complaint in the above referenced action.

      . Judge Kelly wrote a concurring opinion in Brown, joined by Judges Beck and Ford Elliott, expressing dissatisfaction with the discussion of the standard of review, and concluding that the criticism of Jury is unwarranted.

      . Judge Del Sole wrote a concurring opinion in McGinley, joined by-Judges Beck and Popovich, stating that the scope of appellate review was more appropriately set forth in Judge Kelly's concurring opinion in Brown. Judge Saylor, in a concurring statement, agreed with Judge Del Sole in this regard.

      . Of passing interest is the recent Pennsylvania Supreme Court decision eliminating veterans' preference points in governmental hiring. Hoffman v. The Township of Whitehall, et al., 544 Pa. 499, 677 A.2d 1200 (1996).


author: JOHNSON, Judge.

text:
    682 A.2d 313
    Linda KING v. DETROIT TOOL COMPANY, Select Tool and Die Company, Belcan Engineers, Barth Industries, and N.C. Stauffer & Sons, Inc. v. The PROCTOR & GAMBLE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 14, 1996.
    Filed Aug. 6, 1996.
    Reargument Denied Oct. 9, 1996.

      James A. Doherty, Scranton, for appellant.
    Charles A. Shaffer, Kingston, for Linda King, appellee.
    Jay E. Mintzer, Philadelphia, for Detroit Tool Co. & Select Tool & Die Co., appellees.
    Howard A. Berman, Wilkes-Barre, & Sarah M. Bricknell, Harrisburg, for Belcan Engineers, appellee.
    Thomas R. Daniels, Scranton, for Barth Industries, appellee.
    Larry L. Turner, Philadelphia, for N.C. Stauffer & Sons, Inc., appellee.
    Before JOHNSON, FORD ELLIOTT and HOFFMAN, JJ.
   JOHNSON, Judge.

In this appeal, we are asked to determine whether the trial court erred in dismissing the preliminary objections of The Proctor & Gamble Company (“P & G”) to the complaint filed against it by N.C. Stauffer & Sons, Inc. (“Stauffer”). The sole ground for appeal asserted is P & G’s claim that the trial court lacked personal jurisdiction over P & G. We affirm.

Linda King, an employee of the Proctor & Gamble Paper Products Company, allegedly injured her hand while working near a sequential combining unit (a machine used in assembling Pampers disposable diapers). King sued various defendants, including Stauffer, which allegedly designed, manufactured, assembled, sold, or otherwise placed guards for the machine into the stream of commerce. Stauffer subsequently discovered that another defendant, Belcan Engineers, was paid by P & G for services related to the sequential combining machine. This discovery led to Stauffer’s third-party complaint against P & G. The trial court dismissed P & G’s preliminary objections to this complaint, and P & G brought this appeal on the sole ground that the trial court lacked personal jurisdiction over P & G.

The standard of review applicable to determinations disposing of preliminary objections to a trial court’s personal jurisdiction over a party is as follows:

“[Wjhen preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt, (citation omitted). Moreover, when deciding a motion to dismiss for lack of personal jurisdiction the court must consider the evidence in the light most favorable to the non-moving party.”

Scoggins v. Scoggins, 382 Pa.Super. 507, 513, 555 A.2d 1314, 1317 (1989), quoting Delaware Valley Underwriting v. Williams & Sapp, 359 Pa.Super. 368, 373, 518 A.2d 1280, 1282 (1986); see also Gordon v. Pennsylvania Blue Shield, 378 Pa.Super. 256, 548 A.2d 600 (1988). A defendant making a challenge to the court’s personal jurisdiction has, as the moving party, the burden of supporting its objection to jurisdiction. Scoggins, supra, at 513, 555 A.2d at 1317.

A trial court may exercise personal jurisdiction over a defendant if either of the following two bases is present:

(1) specific jurisdiction (under 42 Pa.C.S.A. § 5322) based upon specific acts of the defendant which gave rise to the cause of action, and (2) general personal jurisdiction (under 42 Pa.C.S.A. § 5301), based upon a defendant’s general activity within the state.... The question of whether a state may exercise specific jurisdiction over a non-resident defendant must be tested against both the state’s long-arm statute (here 42 Pa.C.S.A. § 5322) and the due process clause of the fourteenth amendment.

McCall v. Formur-3 Intern. Inc., 437 Pa.Super. 575, 578-79, 650 A.2d 903, 904 (1994), appeal denied, 541 Pa. 640, 663 A.2d 692 (1995). In this case, the trial court found that the requirements for specific jurisdiction were met, citing the following relevant portion of Section 5322:

(a) General Rule. — A tribunal of this Commonwealth may exercise personal jurisdiction over a person ... who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(1) Transacting any business in this Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purpose of this paragraph:
(i) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object.
* * * * * *
(3) Causing harm or tortious injury by an act or omission in this Commonwealth.

Trial Court Opinion, dated October 16, 1995, at 4. The court found sufficient contacts between P & G and Pennsylvania on the basis of (1) the court’s finding that the engineers who supervised conversion of the design of the sequential combining unit to conform to P & G’s needs were agents of P & G; and (2) the court’s finding that the acts of these agents in Pennsylvania gave rise to the instant cause of action. Opinion, supra, at 5.

P & G concedes that the sequential combining machine that allegedly caused King’s injuries was designed, manufactured and installed as part of the P & G QI Project, a project designed to effectuate P & G’s decision “to change the type of diaper that it was manufacturing to a new design.” Brief of Appellant at 9. The design and implementation of the relevant equipment were, therefore, ultimately governed by P & G’s goals and needs. Furthermore, Stauffer presented the deposition testimony of three P & G employees involved in the QI Project that these employees were paid by P & G for their work on the project, including work at the plant where King was injured. While P & G emphasizes some deposition testimony of an employee of Belcan Engineers that suggests that the machinery involved was primarily associated with the Proctor & Gamble Paper Products Company, a subsidiary of P & G, this testimony, viewed in the light most favorable to Stauffer, is insufficient to outweigh the evidence supporting the trial court’s jurisdictional determination.

The constitutional limitations on an assertion of personal jurisdiction over a defendant have been described by our supreme court as follows:

The standard which must be met by a state in asserting specific personal jurisdiction over a non-resident defendant as articulated in Burger King [Corporation v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d. 528 (1985) ] is clear: (1) the non-resident defendant must have sufficient minimum contacts with the forum state and (2) the assertion of in personam jurisdiction must comport with fair play and substantial justice....
The [.Burger King ] Court held that the determination of whether sufficient minimum contacts exist for the assertion of in personam jurisdiction is based on a finding that the “defendant’s conduct and [his] connection with the forum State are such that he should reasonably anticipate being haled into court there.”

Kubik v. Letteri, 532 Pa. 10, 16, 614 A.2d 1110, 1114 (1992), quoting Burger King, supra, at 474, 105 S.Ct. at 2183. As with the trial court’s application of the Pennsylvania long-arm statute, the formative role P & G played in the implementation of the QI Project and the evidence of P & G agency in the design, installation, and operation of the machinery that allegedly injured King militate strongly in favor of the trial court’s finding that P & G should have anticipated being haled into court in Pennsylvania and also indicate that the assertion of jurisdiction does not offend the notions of justice and fair play. P & G has failed to meet its burden of showing jurisdictional infirmities that are “clear and free from doubt,” see Scoggins, supra; we therefore affirm the order of the trial court dismissing P & G’s preliminary objections.

Order AFFIRMED.


author: KELLY, Judge:

text:
    682 A.2d 315
    In re ADOPTION OF D.M.H. Appeal of K.S.E., Appellant.
    Superior Court of Pennsylvania.
    Argued April 18, 1996.
    Filed Aug. 9, 1996.

      Gary G. Efstration, Lancaster, for appellant.
    Frank H. Morgan, Jr., Ardmore, for participating parties.
    Before KELLY, JOHNSON and OLSZEWSKI, JJ.
   KELLY, Judge:

In this appeal, we are requested by appellant, the maternal grandmother, to determine whether the trial court erred by awarding custody of her grandchild, D.M.H., to the adoptive parents rather than to grandmother. Specifically, grandmother asserts that the trial court failed to give sufficient weight to the familial relationship in deciding the best interests of the child. For the following reasons, we hold that the trial court properly considered many factors in making this difficult determination. Accordingly, we affirm the trial court’s final decree.

The salient facts and procedural history are as follows. D.M.H. was born on June 7, 1993. His natural parents have never been married. After the birth, mother and child resided with grandmother until November, 1993. During this five month period, grandmother and mother shared the primary caretaking responsibilities. In November, 1993, mother moved out of grandmother’s house for several months and left D.M.H. with grandmother. Despite mother’s return to grandmother’s house in early 1994, grandmother continued to assume primary caretaking responsibilities. Grandmother was the child’s primary caretaker until November 8, 1994, when mother moved out of the house and took D.M.H. with her.

Without informing grandmother, mother consented to the adoption of D.M.H. on November 18, 1994. D.M.H. was placed with Mr. and Mrs. Thomas, the adoptive parents, on December 9, 1994. Grandmother did not find out about the adoption until December 29, 1994. On January 13, 1995, mother signed a revocation for the consent to the adoption, and on January 16, 1995, D.M.H. was returned to the natural mother. Mother, who was not living with grandmother, gave the child to grandmother, who again assumed primary care-taking responsibilities.

On March 22, 1995, mother withdrew her revocation, and the parental rights of both natural parents were terminated by final decree. One day later, D.M.H. was returned to the adoptive parents, where he has remained since that date. On April 3, 1995, grandmother filed a petition to intervene and stay the adoption action. The trial court entered an order on June 5, 1995, granting grandmother’s petition to intervene pursuant to In re Adoption of Hess, 530 Pa. 218, 608 A.2d 10 (1992).

On October 3, 1995, the Honorable Stanley R. Ott presided over a full hearing before the Orphans’ Court of Montgomery County, Pennsylvania. Testimony at trial established the following facts. Throughout the period when grandmother was primary caretaker of D.M.H., grandmother’s boyfriend, Mr. Nunn, actively participated in the caretaking responsibilities. The trial court determined that the testimony established loco parentis status on the part of Mr. Nunn. Grandmother and Mr. Nunn, who planned to marry as soon as grandmother’s fourth divorce was finalized, wished to adopt D.M.H. themselves. Grandmother and Mr. Nunn presently live in an apartment together with mother. In an attempt to improve her residential status, grandmother has moved at least five times since D.M.H. was born in June, 1993.

Testimony also established that the adoptive parents have resided in the same home for nine years. They also have a summer home in Wildwood, New Jersey, where they spend the majority of their summers. Additionally, the adoptive parents have a time share in a condominium in Orlando, Florida, where they take a yearly one-week vacation. Mr. and Mrs. Thomas adopted a special needs child, Amanda, more than ten years ago, and by all accounts Amanda has done superbly. Amanda was born with a cleft-palate, and because Mrs. Thomas is a speech therapist, Amanda was placed with the Thomas’ in anticipation of her speech therapy needs.

After hearing from all of the interested parties, the trial court found that the best interests of the child would be served by placing D.M.H. with the adoptive parents. This timely appeal followed.

Grandmother raises the following issues for our review:

I. WHETHER THE LOWER COURT COMMITTED AN ABUSE OF DISCRETION BY AWARDING CUSTODY OF [D.M.H.] TO APPELLEES, ROBERT AND KATHY THOMAS, INSTEAD OF MATERNAL GRANDMOTHER, [K.S.E.]?
II. WHETHER THE LOWER COURT IMPROPERLY REFUSED TO ALLOW ANY TESTIMONY REGARDING THE ACTIONS OF THE ADOPTION AGENCY DURING THE PRE-TERMINATION OF PARENTAL RIGHTS PROCESS?
III. WHETHER THE LOWER COURT PLACED UNDUE WEIGHT UPON THE OPINION OF THE CHILD ADVOCATE?

Grandmother’s Brief at 4.

Grandmother argues that the trial court committed an abuse of discretion by finding that awarding custody of D.M.H. to the adoptive parents would better serve the child’s best interests. Grandmother further asserts that the trial court improperly precluded testimony regarding the pre-termination of parental rights by the adoption agency and placed undue weight upon the opinion of the child advocate.

This Court recently stated the standard of review in child custody cases in the following manner:

It is of course true that our paramount concern in child custody cases is to determine the best interests of the child. Choplosky v. Choplosky, 400 Pa.Super. 590, 584 A.2d 340 (1990). Thus, appellate review of child custody Orders is of the broadest type, McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992), and we may modify the trial court’s custody determination where it is shown by evidence of record to be manifestly unreasonable, In re: David L.C., 376 Pa.Super. 615, 546 A.2d 694 (1988); see also Robinson v. Robinson, 538 Pa. 52, 645 A.2d 836 (1994) (appellant interference warranted where custody Order is manifestly unreasonable). Further, our review is not bound by the trial court’s deductions, inferences and interpretations of evidence and we will exercise independent judgment to consider the merits of the case and to enter an Order that is correct and just. Bucci v. Bucci, 351 Pa.Super. 457, 506 A.2d 438 (1986).

In Interest of G.C., 449 Pa.Super. 258, 280, 673 A.2d 932, 943 (1996) (en banc); see also In re Adoption of R.H., 485 Pa. 157, 162-63, 401 A.2d 341, 344 (1979); Matter of Adoption of Christopher P., 480 Pa. 79, 86, 389 A.2d 94, 97-98 (1978). Despite this Court’s broad standard of review regarding child custody orders, on issues of credibility and weight of the evidence, we must defer to the findings of the trial judge who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Robinson v. Robinson, 538 Pa. 52, 57, 645 A.2d 836, 838 (1994) (citing In re Holtz’ Estate, 422 Pa. 540, 547, 222 A.2d 885, 889 (1966)). Keeping in mind these principles, we will evaluate grandmother’s claims.

Grandmother’s first issue on appeal claims that the trial court erred in finding that D.M.H.’s best interests would be served by placing him with the adoptive parents. In particular, grandmother asserts that the trial court abused its discretion by indicating that “there was no significance to the familial relationship and blood connections of [the grandmother and her boyfriend to the child].” (Appellant’s Brief at 18).

At the outset, we note that once the parental rights have been terminated, anyone may become an adoptive parent, and the best interest of the child is the controlling factor by which a court must be guided. In re Adoption of Hess, 530 Pa. 218, 223-24, 608 A.2d 10, 13 (1992); Matter of Adoption of Sturgeon, 300 Pa.Super. 92, 107, 445 A.2d 1314, 1321 (1982) (citation omitted). Furthermore, a trial court must base its conclusions in an adoption case upon all relevant information discerned with the full participation of all interested parties. In re Adoption of Hess, supra at 227, 608 A.2d at 15; Matter of Adoption of Sturgeon, supra at 110, 445 A.2d at 1323.

Recently, the Supreme Court of Pennsylvania interpreted Section 2701(1) of the Adoption Act to determine the appropriate weight to be given to grandparent/grandchild relationships in adoption cases:

Thus while the Act does not reflect a preference for a grandparent’s adoption, it clearly does not exclude grandparents from being considered as prospective adoptive parents. A grandparent seeking to adopt a grandchild also must indicate his or her relationship to that child in the Petition to Adopt. 23 Pa.C.S. § 2701(1). This requirement indicates that a relationship between the proposed adoptive parent and the adoptee is a relevant consideration.

In re Adoption of Hess, supra at 224, 608 A.2d at 13. There is neither a presumption for, nor a presumption against, grandparents who want to adopt their grandchildren. Id.

In the instant case, the trial court evaluated a long list of factors “in fashioning a result which is ultimately in [D.M.H.’s] best interests.” (N.T. 10/3/95 at 266). One of the many factors that the trial court considered was the weight to be accorded to the familial relationship between grandmother and child. The trial court stated that once parental rights have been terminated, then “the familial relationship, the blood connection, no longer has the significance that it would have otherwise.” (Id. at 264). The trial court did not say, as grandmother suggests, that the familial relationship is of no significance, but only that it is of reduced significance. Therefore, the trial court properly evaluated the familial relationship between grandmother and child by making the relationship a relevant, but not a controlling, consideration. See In re Adoption of Hess, supra.

Grandmother further proffers that the trial court abused its discretion by overemphasizing the significance of the strained grandmother/mother relationship, and by failing to emphasize D.M.H.’s healthy relationships with his natural cousins and extended family. Grandmother suggests that these natural family relationships counterbalance D.M.H.’s relationship with his adoptive sister. We disagree.

In determining what would be in the best interests of D.M.H., the trial court correctly analyzed the important consideration of parent/family stability. From this broad category, the trial court distilled three important sub-issues: parenting history, marriage history, and sibling relationships.

The trial court did not err by finding the Thomas’ ten-year relationship with their previously-adopted special needs child to be a more favorable indication of positive parenting history than the tempestuous and often contentious relationship between grandmother and mother. Similarly, the trial court correctly noted that the Thomas’ fifteen-year marriage was a more convincing statement of family stability than grandmother’s record of four marriages and four divorces. From the evidence presented at trial, the court also found that an important sibling relationship existed between D.M.H. and his adoptive sister. The trial court further found that there was no such relationship within grandmother’s family to counterbalance that sibling relationship. Grandmother asserts that the trial court abused its discretion by not according substantial weight to D.M.H.’s relationship with his cousins. In making this argument, grandmother fails to recognize that a live-in relationship with a direct sibling is far more powerful than occasional or even regular visits with cousins or other similarly distant family members. The trial court did not err by determining that the sibling relationship between D.M.H. and his adoptive sister was a factor which weighed in favor of the Thomases.

Grandmother also claims that the trial court erred by placing any emphasis on the financial disparity between adoptive parents and grandmother. Grandmother argues that because the trial court determined that both families are capable of providing for the needs and welfare of D.M.H., financial disparities should be wholly disregarded.

This Court has stated that in a custody proceeding, the only permissible inquiry into the relative wealth of the parties is whether either party is unable to provide adequately for the child. Brooks v. Brooks, 319 Pa.Super. 268, 276-77, 466 A.2d 152, 156 (1983) (citations omitted); In re Custody of Pearce, 310 Pa.Super. 254, 258, 456 A.2d 597, 599 (1983) (citations omitted). In the instant case, the trial court determined that both parties are capable of providing for D.M.H.’s needs and welfare and that “finances, by themselves, are no factor whatsoever.” (N.T. 10/3/95 at 258). The trial court also noted that although financial disparity is irrelevant to the inquiry of D.M.H.’s best interests, financial stability can sometimes be a slight factor “if the difference is significant and the stability afforded materially affects needs and welfare and/or best interests.” (Id. at 258-59). The trial court determined that in the instant case, the financial stability issue played only a minor role in the determination of D.M.H.’s best interests. We conclude that the trial court, appropriately, placed only minimal emphasis on the issue of financial stability and that the trial court did not commit an abuse of discretion by doing so.

Grandmother further argues that the trial court erred by failing to cite the Thomas’ annual change of address for vacation purposes as a disruption in D.M.H.’s sense of community stability akin to grandmother’s frequent changes in residence. This argument is without merit.

Although it is clear from Mr. Nunn’s testimony that his and grandmother’s frequent moves are part of a plan to better their lifestyle, the effects of such moves may be destablizing for a young child. If the family residence is frequently relocated, a child may be unable to develop an adequate sense of home and community involvement. Such moves may also deprive a child of the security of knowing that he or she has a permanent place to call his or her own.

The Thomas’ annual vacation relocation does not create the same atmosphere of instability for a child. With a vacation home, the child simply becomes a member of two permanent communities. The child remains secure in his or her sense of home and is permanently involved in the same two communities. Furthermore, the child is not hampered by the negative effects which may arise from the insecurity of never having a permanent place to call home. The trial court did not abuse its discretion by finding that the Thomas’ have established greater community stability and roots than grandmother.

In her second issue on appeal, grandmother posits that the trial court abused its discretion in refusing to allow testimony regarding the activities of the adoption agency prior to the termination of the parental rights of D.M.H.’s natural parents. Grandmother appears to believe that a fully developed record of the agency’s pre-termination activities would be useful to demonstrate how the agency’s actions affected the actions of grandmother and the adoptive parents. Specifically, grandmother argues that the adoptive agency owed her a duty to provide notice regarding the proceedings to terminate parental rights. Relying on Chester County Children and Youth Services v. Cunningham, 431 Pa.Super. 421, 636 A.2d 1157 (1994), affirmed, 540 Pa. 258, 656 A.2d 1346 (1995), grandmother asserts that this lack of notice affected grandmother’s position prior to the adoption and was therefore relevant to the adoption proceedings. We reject such a contention.

Our standard of review is well settled.

Questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Leonard v. Nichols Homeshield Inc., 384 Pa.Super. 1, 5, 557 A.2d 743, 745 (1989); Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985). Relevance is a threshold consideration in the determination of the admissibility of evidence. Whyte v. Robinson, 421 Pa.Super. 33, 38, 617 A.2d 380, 383 (1992); Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 618, 537 A.2d 334, 338 (1988). Pennsylvania trial judges enjoy broad discretion regarding the admissibility of potentially misleading and confusing evidence. Whyte v. Robinson, supra at 38, 617 A.2d at 383; Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 22, 473 A.2d 584, 588 (1984).

General Equipment Manufacturers v. Westfield Insurance Company, 430 Pa.Super. 526, 543, 635 A.2d 173, 182 (1993), allocatur denied, 537 Pa. 663, 644 A.2d 1200 (1994); accord Henery v. Shadle, 443 Pa.Super. 331, 340-41, 661 A.2d 439, 444 (1995) (citations and quotations omitted). Keeping in mind these principles, we now turn to grandmother’s argument that the trial court erred in excluding certain testimony at the hearing.

Having specifically outlined the scope of the adoption proceedings, the trial court determined that evidence concerning the agency’s pre-termination actions would not assist the court in deciding which family would better serve D.M.H.’s best interests. The trial court directly addressed this issue following an objection to grandmother’s line of questioning during the trial as follows:

Whether or not parental rights of the birth mother and/or the birth father were terminated properly or improperly, is not relevant here. They have been terminated. There was no appeal taken. They are final, res judicata, I am not going to revisit that, nor am I going to engage in second guessing about whether or not they did their job properly in terms of notice.
I don’t have any doubt, given the factual history that’s taken place in this case that we all agree to, that there are sensitive feelings here on both sides; that there were heavy emotions involved on both sides; that there are strong feelings involved on both sides as to the way things may have been done that lead up to where we now are. I accept that and understand it, and nobody is held accountable for this in my book. My quest, my only inquiry is, now that the parental rights have been terminated, finally — emphasis on the finally — where are the needs and welfare of [D.M.H.] best met, and what is in his best interest?

(N.T. 10/3/95 at 78-79).

The trial court did not err by preventing grandmother from presenting testimony regarding the agency’s pre-termination activities. It was within the trial court’s discretion to exclude evidence that it determined was irrelevant to the inquiry at hand. Furthermore, the trial court demonstrated proper discretion by noting that the activities of the two parties during the pre-termination period would not be incorporated into the determination of what was in D.M.H.’s best interests.

Grandmother’s reliance on Chester County CYS v. Cunningham, supra, to demonstrate the relevance of the agency’s actions is misplaced. In Chester County CYS v. Cunningham, supra, this Court held that the standing afforded to grandparents to intervene in adoption proceedings as enunciated in In re Adoption of Hess, 530 Pa. 218, 608 A.2d 10 (1992), does not extend to foster parents. Instantly, having been permitted to intervene in the adoption proceedings, grandmother has already benefitted from the holding in In re Adoption of Hess, supra. Grandmother’s use of the Chester County CYS v. Cunningham, supra interpretation of In re Adoption of Hess, supra to prove the relevance of the agency’s pre-termination actions is an attempt to stretch the holding of In re Adoption of Hess, supra beyond all reasonable bounds. The trial court did not abuse its discretion by refusing to allow testimony regarding the pre-termination actions of the adoption agency.

In grandmother’s third issue on appeal, she asserts that the trial court abused its discretion by placing undue weight upon the opinion of a child advocate who had been appointed at the last minute and who had insufficient time to review the case. We deem this issue waived.

It is well settled that issues not raised at trial are waived and cannot be raised for the first time on appeal. Boyle v. Steiman, 429 Pa.Super. 1, 10, 631 A.2d 1025, 1030 (1993), allocatur denied, 538 Pa. 663, 649 A.2d 666 (1994) (citations omitted); Larkin v. Metz, 398 Pa.Super. 235, 243, 580 A.2d 1150, 1154 (1990); Pa.R.A.P. 302(a). Counsel for grandmother never objected to the late appointment of the child advocate and never requested a delay in the proceedings. Also, the child advocate did not request a delay in the proceedings to enable herself to study the record. Grandmother raised no objection to the child advocate’s participation in the proceedings. She cannot, therefore, be heard to complain now.

Even if we were to consider grandmother’s claim that the trial court erred by placing undue weight on the opinion of the child advocate, this claim would fail. It is the responsibility of the court to consider all relevant evidence in order to assess the best interests of a child whose adoption is pending. In re Adoption of Hess, 386 Pa.Super. 301, 309-10, 562 A.2d 1375, 1379 (1989), affirmed, 530 Pa. 218, 608 A.2d 10 (1992). The “best interests” standard can only be applied with the full participation of all interested parties during hearings in which all pertinent facts are placed before the court. Id. (quoting Matter of Adoption of Sturgeon, supra at 110, 445 A.2d at 1323).

The trial court had the duty to consider the statements and opinions of the child advocate while making its determination of which family would better serve the best interests of D.M.H. From the notes of testimony, it is evident that the trial court incorporated the child advocate’s opinions into its decision. It is not evident that the trial court’s decision was unduly influenced by the opinions of the child advocate. The trial court indicated the extent of its reliance on the child advocate in the announcement of its decision:

I agree with much of what [the child advocate] said. I put some emphasis on a few things that she didn’t mention, and perhaps I would put a little less on some things she did, but largely what she said, spoke to me.

(N.T. 10/3/95 at 259). In weighing the evidence to determine what is in the best interest of D.M.H., the trial court did not place undue weight on the opinion of the child advocate. Rather, the trial court properly incorporated the opinion of the child advocate into its overall decision.

Based upon the foregoing reasons, we affirm the decree entered on October 4, 1995, in the Montgomery County Court of Common Pleas.

Decree affirmed.

      . 23 Pa.C.S.A. § 2701(1).

        . We note that in the case of In re Adoption of Hess, supra, our Supreme Court specifically emphasized "that by permitting the grandparents to intervene, we are not guaranteeing that they will prevail.” Id. at 227, 608 A.2d at 15.