author: BECK, Judge.

text:
    577 A.2d 200
    COMMONWEALTH of Pennsylvania v. Thomas J. MARTIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 26, 1990.
    Filed June 29, 1990.

      John E. Jones, Pottsville, for appellant.
    Jacqueline L. Russell, Asst. Dist. Atty., Pottsville, for Com., appellee.
    Before CAVANAUGH, BECK and HUDOCK, JJ.
   BECK, Judge.

The issue in this case is whether under the statute consolidating the various theft offenses, 18 Pa.Cons.Stat. Ann. § 3902 (Purdon 1983), the Commonwealth is required to give notice to the defendant as to the specific provision of the theft statute under which it intends to seek a guilty verdict where the specific theft offense charged is different from the one the Commonwealth is attempting to establish at trial.

In this case appellant was found guilty by a jury of theft of property lost, mislaid, or delivered by mistake, of driving under the influence, and escape. We reverse the judgment of sentence on the charge of theft. On all other charges, we affirm.

At approximately 7:30 p.m. on November 24, 1988, Pennsylvania State Trooper Stackhouse was on road patrol. She observed a vehicle whose wheels were screeching, and followed it. As the Trooper followed, she observed the vehicle make a turn without signalling, and swerve into the opposite lane on five occasions by a distance of about three or four feet. The driver of the car pulled over, at which time the Trooper activated the dome light on top of her car and pulled over in front of the vehicle. Appellant got out of the car. Trooper Stackhouse told him over her public address system to get back into the car, which he did. Appellant then produced a driver’s license that was issued to Kevin McDonald. The Trooper testified that the likeness on the driver’s license resembled appellant, and she thought at the time that appellant was Kevin McDonald. Appellant also produced a vehicle registration card that showed that the car was owned by Shirley See, the passenger.

Trooper Stackhouse saw two beer cans on the floor of the car, and smelled a strong odor of alcohol on appellant. She therefore requested that he exit the vehicle and perform two field sobriety tests. When appellant failed to perform satisfactorily on both tests, Trooper Stackhouse informed him that he was under arrest. At this time, appellant became belligerent and refused to follow the Trooper to her car. Appellant shoved her slightly, then calmed down. When Trooper Stackhouse attempted to handcuff him, however, he ran for his car. The Trooper ordered him to exit the vehicle. Appellant alighted from the car and ran down the road. The Trooper followed him a short distance in her car, then observed him run into the woods. Unable to locate him, she called for assistance.

At that time, Trooper Stackhouse thought she was pursuing Kevin McDonald. She therefore requested another officer to go to the address on the driver’s license and bring in McDonald. McDonald reported that he was not the driver of the vehicle in question and that his driver’s license had been stolen in July of 1988. McDonald’s fiance, Holly Hochgertel, testified that McDonald’s wallet, which contained his driver’s license, was stolen from her car on July 26, 1988.

Officer Edward Terefencko of the Pottsville Police Department responded to Trooper Stackhouse’s call for assistance. When the Trooper described appellant, especially a recent injury to his eye, and appellant’s companion, Officer Terefencko suggested that the fugitive was actually appellant Thomas Martin. Trooper Stackhouse later identified appellant from a photograph as the person she was pursuing. Appellant was ultimately apprehended and brought to trial on May 4, 1989.

As to Kevin McDonald’s license, appellant was charged with theft of property lost, mislaid or delivered by mistake. 18 Pa.Cons.Stat.Ann. § 3924 (Purdon 1983). It is clear from the record that the Commonwealth failed to prove beyond a reasonable doubt that appellant knew that the driver’s license had been lost, mislaid, or delivered by mistake. Instead the Commonwealth attempted to prove that appellant was guilty of receiving stolen property. The Commonwealth argues, and the trial judge agrees, that under section 3902 of the Crimes Code, regardless of the specific theft provision charged, the Commonwealth can prevail if it proves beyond a reasonable doubt the elements of any of the theft offenses defined in Chapter 39 of the Crimes Code, “Theft and Related Offenses,” so long as the defendant is not prejudiced by lack of fair notice or surprise. The trial judge found that even though the Commonwealth failed to prove the specific elements of section 3924, theft of property lost, mislaid or delivered by mistake, the Commonwealth met its burden because the Commonwealth proved the elements of another section of the theft chapter, namely section 3925, receiving stolen property.

The court in declining to arrest judgment suggested that appellant was not “prejudiced by lack of fair notice or surprise” under section 3902, and added, “the [appellant] made no objection at trial to the Commonwealth’s evidence regarding the theft of the driver’s license found in his possession; nor did he assert any prejudice or request a continuance after the introduction of such evidence.” Trial Court Op. at 4. We disagree with the trial court’s application of section 3902, and reverse judgment of sentence on the charge of theft of property lost, mislaid or delivered by mistake.

The issue in this case focuses on section 3902 which provides:

Conduct denominated as theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the complaint or indictment, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or surprise.

Section 3902 is unique in the criminal law. It was made part of the Crimes Code chapter dealing with theft and related offenses to consolidate the different varieties of theft into a single, comprehensive theft offense. The purpose of the statute is to avoid the types of technicalities that once distinguished different types of theft such as larceny, extortion, embezzlement, receiving stolen property, and the like. Commonwealth v. Rosenzweig, 514 Pa. 111, 121-23, 522 A.2d 1088, 1094 (1987); Lowry v. State Farm Insurance Companies, 392 Pa.Super 77, 87-89, 572 A.2d 700, 705-06 (1990); Commonwealth v. Adams, 236 Pa.Super. 534, 345 A.2d 192 (1975) (Hoffman, J., concurring). These criminal offenses retain separate definitions, but are subsumed by section 3902 into a unitary theft offense. See Burkhoff, Criminal Offenses and Defenses in Pennsylvania (2d ed.), 449-50 (1989).

An Historical Note following the statute tells us that it was adopted from a similar section in the Model Penal Code. The drafters of the Model Penal Code note that

“[t]he purpose of consolidation ... is not to avoid the need to confront substantive difficulties in the definition of theft offenses. The appropriate objective is to avoid procedural problems____ The real problem arises from a defendant’s claim that he did not misappropriate the property by the means alleged but in fact misappropriated the property by some other [illegal] means____”

Model Penal Code § 223.1(1), revised Commentary at 127-28 (1980). Thus, in order to prevent a charge based on one method of unlawfully obtaining property from being defeated by the defense that the property was acquired by a different unlawful method, the statute allows the Commonwealth to introduce evidence at trial of any form of theft regardless of the form of theft charged, but always subject to the defendant’s right to fair notice and an opportunity to defend. Id.; see also Commonwealth v. Peduzzi, 338 Pa.Super 551, 553-55, 488 A.2d 29, 31 (1985); Commonwealth v. Lewis, 299 Pa.Super. 367, 370-72, 445 A.2d 798, 800 (1985).

In the case sub judice, section 3902 would permit a conviction of the original charge of theft of property lost, mislaid or delivered by mistake under section 3924, based on evidence that proves theft under section 3925, receiving stolen property, provided the appellant was not prejudiced by lack of fair notice or surprise. The trial court was correct in asserting that a verdict based on proof of section 3925 is valid even though appellant was charged under section 3924. However, we can not end our review of the trial court’s decision without inquiring whether appellant was prejudiced by lack of fair notice or surprise.

Section 3902 requires that the court ensure the defendant a fair trial and the court take appropriate action “where the conduct of the defense would be prejudiced by lack of fair notice or surprise.” In this case appellant was not informed at any point during the trial that the Commonwealth intended to prove theft by receiving stolen property and not theft by property lost, mislaid, or delivered by mistake. The trial judge asserts that the appellant had proper notice, and that it was provided when the Commonwealth introduced evidence that the driver’s license was stolen. The trial judge also noted that appellant did not object to the admission of this evidence, request a continuance after its introduction, or assert any prejudice thereby. We decline to hold that the mere admission of evidence without objection, that would prove an element of theft by receiving stolen property puts a criminal defendant charged with a different theft offense on notice that he could be found guilty of theft by receiving stolen property.

In Commonwealth v. Peduzzi, 338 Pa.Super. 551, 488 A.2d 29 (1985), the defendant was tried before a judge and found guilty of theft by failure to make required disposition. After considering post-trial motions, the trial judge concluded that the evidence did not support the conviction. Instead of arresting judgment, the trial court amended the verdict and found Peduzzi guilty of theft by deception. The trial judge justified this procedure under section 3902. This court reversed, finding that to alter the verdict after trial so as to find the defendant guilty of a different offense, without notice or opportunity to be heard, was error. The court concluded that:

[t]he consolidation contemplated by section 3902 must occur prior to, not after, a verdict has been returned and recorded. The court cannot amend a verdict post-trial so as to find the defendant guilty of a new and different offense than the one for which he was tried.

338 Pa.Super. at 555, 488 A.2d at 31.

The instant case is analogous to Peduzzi. Although the trial judge did not expressly alter the verdict, he concluded post-trial that the evidence proved appellant was guilty of a different offense from the one with which he was charged. No consolidation occurred until the trial judge ruled on appellant's motion to arrest judgment. This was improper.

We hold that prior to the case being submitted to the jury, section 3902 requires the Commonwealth to give notice to the defendant as to which theft offense the Commonwealth is attempting to prove. Under section 3902, the court must give defendant an opportunity to respond properly to the theft offense or offenses that the Commonwealth intends to prove. The trial judge then has a duty to instruct the jury on the elements of those theft crimes which the Commonwealth intends to prove so that the jury understands the legal bases on which its verdict can rest. See, Commonwealth v. Ford-Bey, 504 Pa. 284, 288-90, 472 A.2d 1062, 1064-65 (1984). The record reveals that the trial judge did not instruct the jury on the elements of receiving stolen property, but only on the elements of theft of property lost, mislaid, or delivered by mistake.

In the instant case, for a conviction of receiving stolen property the Commonwealth is required to prove that appellant knew or had reason to know that that the driver’s license in his possession was stolen. See Commonwealth v. Brady, 385 Pa.Super. 279, 286-88, 560 A.2d 802, 806 (1989). The jury never decided this issue. The judge did not instruct on theft by receiving stolen property, and knowledge that the property was stolen is not an element of theft of property lost, mislaid, or misdelivered.

The Commonwealth contends that Commonwealth v. Robichow, 338 Pa.Super. 348, 487 A.2d 1000 (1985) appeal dismissed, 510 Pa. 418, 508 A.2d 1195 (1986), supports its position that the conviction should be affirmed on the basis of sufficient evidence of a different variety of theft. We note that no consolidation of theft offenses occurred in Robichow. The majority found sufficient evidence to support a conviction of the theft offense with which Robichow had been charged. 338 Pa.Super at 353-55, 487 A.2d at 1003. The discussion of section 3902 in Robichow is therefore obiter dictum. Second, in the instant case, we reverse due to insufficient notice to appellant that he could be found guilty of theft by receiving stolen property. Robichow does not address what constitutes adequate notice under section 3902.

To summarize, we conclude that notice under section 3902 requires more than the mere admission of evidence consistent with the proof of an offense of theft different from that with which a defendant is charged. In the absence of meaningful notice, i.e., notice of the intended consolidation at a point in the trial process where a defendant has opportunity to respond, we will not uphold a conviction based on evidence that proves a theft offense different from the one originally charged. In addition, the trial judge must have instructed the jury on the elements of the offense consolidated under section 3902.

Appellant raises two other issues on appeal. He first asks whether the trial judge erred in refusing to grant a mistrial after Officer Terefencko testified that he knew appellant “had a previous incident,” and Officer Stackhouse testified that she identified appellant from a photograph. Appellant argues that the jury could infer from this testimony that appellant had been involved with the police on previous occasions, and such an inference would be so highly prejudicial to appellant as to deny him a fair trial. We disagree.

The Commonwealth may not introduce evidence of a defendant’s prior criminal conduct as substantive evidence of his or her guilt of the present charge. Such evidence may prejudice the jury and strip appellant of his presumption of innocence. Commonwealth v. Lyons, 382 Pa.Super. 438, 450-51, 555 A.2d 920, 926 (1989). However, to warrant a characterization as prejudicial, this type of testimony must convey to the jury expressly or by reasonable implication the fact of a prior criminal offense. Commonwealth v. Carpenter, 511 Pa. 429, 437, 515 A.2d 531, 535 (1986). Neither incident of which appellant complains conveyed to the jury the fact of a prior criminal offense. We therefore decline to reverse on this ground.

Finally, appellant argues that trial counsel was ineffective for failing to request that the trial judge give the jury a cautionary instruction after the Officer testified that he knew appellant from a previous incident. We find no merit in this claim.

Allegations of ineffectiveness are tested on appeal under a three step analysis: first, we decide whether the underlying claim is of arguable merit, second, we assess whether there is any reasonable basis for the disputed act or omission that was designed to advance the client’s interests, and third, we consider whether counsel’s alleged improper conduct worked to the client’s prejudice. Commonwealth v. Davis, 518 Pa. 77, 83-85, 541 A.2d 315, 318 (1988). We decided above that the underlying claim lacks merit, and we will not find counsel ineffective for failing to assert a meritless claim. Commonwealth v. Groff, 378 Pa.Super. 353, 364-66, 548 A.2d 1237, 1243 (1988).

Judgment of sentence on the charge of theft is vacated. As to all other charges, judgment of sentence is affirmed.

HUDOCK, J., concurs in the result.

      . 18 Pa.Cons.Stat.Ann. § 3924 (Purdon 1983).

      . 75 Pa.Cons.Stat.Ann. § 3731 (Purdon Supp.1989).

      . 18 Pa.Cons.Stat.Ann. § 5121 (Purdon 1983).

      . 18 Pa.Cons.Stat.Ann. § 3925 (Purdon 1983).

      . 18 Pa.Cons.Stat.Ann. § 3927 (Purdon 1983).

      . 18 Pa.Cons.Stat.Ann. § 3922 (Purdon 1983).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    577 A.2d 205
    Karen R. MILLER, Appellee, v. Kurtz J. MILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 8, 1990.
    Filed June 28, 1990.

      Arthur T. McDermott, Carlisle, for appellant.
    Ellen M. Averett, Gettysburg, for appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This appeal stems from the May 15, 1989, order of the Court of Common Pleas of Adams County granting a decree in divorce and directing an award of equitable distribution. Appellant raises the following issues:

1) Did the court properly evaluate the factors set forth in 23 Pa.S.A. § 401(d) in awarding appellee the bulk of the marital estate?
2) May the court treat that portion of appellant’s pension waived in order to receive veterans’ disability benefits as marital property?
3) Should a vested, matured, and currently being received pension be distributed on an “actuarialy based current value?”
4) Was appellant’s military pension properly evaluated since service beyond thirty (30) years does not increase the percentage of the pension?
5) If the court’s decision to award the “present value” of appellant’s military pension was appropriate, should the present value be determined on the date of valuation or on the date of distribution?
6) Should appellant be given a reasonable opportunity to present his case?

For the following reasons, we vacate that part of the order as it pertains to equitable distribution, and remand for further proceedings consistent with this opinion. The provision granting the parties’ divorce is affirmed.

The parties married on November 10, 1967. Upon appellant’s retirement as a Colonel in October of 1973, the parties and their two (2) sons moved to New Oxford, Adams County. In 1979, they purchased and moved to a large farm near the Eisenhower farm in Gettysburg. The family remained there until July of 1984, when appellee and her sons left.

On November 2, 1984, appellee filed a complaint in divorce, seeking a property distribution, alimony, alimony pendente lite, counsel fees and expenses. Appellant filed an answer on May 19, 1987, and a motion to bifurcate of November 10, 1987. On December 21, 1987, appellee answered the motion, and the trial court ruled that the lack of information caused the matter to be continued at the call of either party.

Appellant filed an amendment to the answer and an affidavit under section 201(d) of the Pennsylvania Divorce Code on December 23, 1987. On March 14, 1988, appellant requested another hearing on his motion to bifurcate. The court granted his request and scheduled a hearing for April 25, 1988. Three (3) days later, the court ruled that questions existed and continued the matter at the call of either party.

A master’s hearing was to be held on September 23, 1988. One (1) week prior, appellant informed the master that his health and lack of counsel precluded his attendance. The master informed appellant that she would grant a continuance upon the receipt of a doctor’s excuse. No excuse was presented and appellant did not attend. The hearing was conducted as scheduled and on December 2, 1988, the master filed her report, recommending that appellee receive 60 percent of the marital estate.

Both filed exceptions to the report and the court ordered a February 22, 1989, hearing on the exceptions. The lower court issued its ruling on March 10, 1989, and ordered the parties to submit proposed distribution schemes. On April 10, 1989, the lower court awarded appellee 55 percent of the marital property. This order was incorporated into the May 15, 1989, final divorce decree, from which appellant takes this timely appeal.

Initially, when reviewing a trial court’s determination of equitable distribution, an appellate court’s scope of review is whether an abuse of discretion occurred. In Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987), allocatur denied, 517 Pa. 623, 538 A.2d 877 (1988), we stated:

Under this standard, we do not usurp the hearing court’s duty as fact finder. Rather we apply the legislative guidelines of the Divorce Code to the record to determine whether or not the hearing court has abused its discretion. An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence____ However, an abuse of discretion will be found by this Court if the trial court failed to follow proper legal procedure or misapplied the law. (Citations omitted).

Id., 365 Pa.Super. at 412, 529 A.2d at 1124.

We will first address the issue upon which we vacate and remand. Appellant argues that the portion of his pension waived to receive veteran’s disability benefits cannot be treated as marital property. We agree and vacate and remand for the court to re-determine the equitable distribution of appellant’s pension.

The recent United States Supreme Court decision in Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989), has been followed by this Court in Martin v. Martin, 385 Pa.Super. 554, 561 A.2d 1231 (1989). In Mansell, the Court held:

... .that the Former Spouses Protection Act does not grant state courts the power to treat, as property divisible upon divorce, military retirement pay that has been waived to receive veterans disability benefits.

Mansell, supra, 109 S.Ct. at 2031.

Following the directive in Mansell, this Court stated that: ____to the extent Pennsylvania’s Divorce Code allows equitable distribution of YA disability retirement pay, or pay waived to receive disability pay, the Code is pre-empted by federal law and cannot be given effect.

Martin, supra, 385 Pa.Super. at 562, 561 A.2d at 1235.

Instantly, VA disability benefits were included in the determination of the military pension distributed to the parties. Box one (1) of plaintiff’s (appellee’s) exhibit (15), dated March of 1988, reflects the appellant’s retirement entitlement. This amount, $4096.00, was used by appellee’s expert witness and The Office of The Assistant Secretary of Defense to determine appellant’s pension value. See plaintiff’s exhibits (3) and (4). Box two (2) of plaintiff’s exhibit (15) reflects a deduction in the entitlement of $289.00. The description contained in box two (2) is “VA” and corresponds with plaintiff’s exhibit (16), detailing appellant’s disability compensation award.

Under the mandate of the United States Supreme Court, the disability compensation award should have been excluded from the value of appellant’s pension. The sum contained in box eight (8) of plaintiff’s exhibit (15), total entitlement, should have been utilized. This figure of $3,807.00 is the difference between box one (1) and box two (2). Therefore, we vacate and remand to the lower court for re-determination of appellant’s pension available for equitable distribution in compliance with Martin. However, the court must also determine the amount of disability compensation appellant is receiving, since plaintiff's exhibit (16) indicates that the disability compensation has increased.

Appellant also argues that the court erred in evaluating the factors set forth in 23 Pa.S.A. § 401(d) in awarding appellee the majority of the marital estate. We find no error. The factors were discussed in the master’s report filed on December 2, 1988, and by the lower court in its March 10, 1989, ruling on the exceptions to the master’s report. However, since this case is remanded, the lower court must examine 23 Pa.S.A. § 401(d) in light of the new distribution.

Next, appellant argues that he was not given a chance to present his case. We disagree. Appellant believes he should have received a continuance of the September 23, 1988, master’s hearing. The master informed appellant (1) week prior to the hearing that a continuance would be granted if he obtained a medical excuse outlining his ill health. Appellant failed to secure an excuse nor did he attend the hearing. Therefore, any perceived unfairness was the result of appellant’s failure.

Additionally, appellant was allowed to present his case at the February 22, 1989, hearing on exceptions to the master’s report. Appellant claims that he did not receive enough notice to secure his witnesses, a real estate appraiser, a pension evaluator and a medical expert. This case has been ongoing for five (5) years, and, in light of the master’s report filed in December of 1988, appellant was aware of the issues. Also, he failed to ask for a continuance to secure these witnesses. We do not accept that appellant was that unprepared. The court has been tolerant and has afforded him chances to present his case. Accordingly, this issue is meritless.

Further, appellant argues that the lower court erred by distributing his vested, matured and currently being received pension on an actuarialy based current value. In other words, it was error to award appellee a lump sum share of his pension. We disagree. In Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985), this Court discussed the two methods used to distribute retirement benefits classified as marital property. As we noted:

One method, the immediate offset method, divides the benefits at the time the equitable distribution order is entered by assigning a present value to them---- As we stated above, only those benefits attributable to the period commencing with the marriage and ending on the date of separation are marital property____ The present value must be multiplied by the “coverture” fraction to reach the present value of the entitlement which was acquired during the marriage____ Next, the court must determine how the sum available for equitable distribution should be apportioned between the spouses according to the Divorce Code. After determining the non-employee spouse’s interest in the benefits, the court awards these benefits to the employee spouse and offsets this by distributing other marital property or by ordering payment to the non-employee spouse.
The second method is labeled the deferred distribution or reserved jurisdiction method, since the court retains jurisdiction and apportions the benefits when they enter pay status or mature. Under this method, present value figures are not used. Rather, the “coverture” fraction is applied to the benefits when they enter pay status since there are too many variables projected into the future.

Id,., 339 Pa.Superior Ct. at 197-98, 488 A.2d at 619-20. See, Hunsinger v. Hunsinger, 381 Pa.Super. 453, 554 A.2d 89 (1989). In comparing the two, the Braderman Court stated that:

The immediate offset method has the advantage of avoiding further entanglement between the parties. Problems with continuing court supervision and enforcement are also avoided. This method’s greatest virtue, however, is that it effectuates a final and immediate settlement of the distribution of the retirement benefits. In contrast, the deferred distribution method equally divides the risk of forfeiture before maturity among the parties, but also prolongs the strife and hostility between the parties by extending the time for a final resolution of the parties assets. Although an immediate offset is preferred, ... this method is impractical where the parties do not possess enough assets to offset the pension award. When the value of the employee-spouse’s pension far exceeds the value of the other marital property, the deferred distribution method must be used.

Braderman, supra, 339 Pa.Super. at 197-98, 488 A.2d at 619-20.

Instantly, the “immediate offset method” was used and was justified. It gave finality to the matter and there was sufficient property other than the pension to render the more cumbersome deferred distribution method unnecessary. Therefore, appellant’s argument lacks merit.

Appellant also argues that if awarding the pension’s present value was correct, it should be valued from the date of distribution. Absent a specific benchmark for valuation, the trial court is free to select the date which best serves to provide for economic justice between the parties. The date chosen by the trial court is reviewed under an abuse of discretion standard. Aletto v. Aletto, 371 Pa.Super. 230, 237, 537 A.2d 1383, 1387 (1988) (Citations omitted). The Braderman Court recommended valuing the pension as of the date of the hearing when using the immediate offset method. Braderman, supra, 339 Pa.Super. at 197, 488 A.2d at 619. On remand, the trial court has discretion when assigning a date of valuation. Yet, valuations should be made as close as possible to the property distribution date. Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988).

Finally, appellant believes the lower court improperly evaluated his pension because the percentage of his pension does not increase after thirty (30) years of service. 10 U.S.C.S. § 1401, computation of retired pay, provides formulas, depending on rank or grade and the circumstances surrounding the retirement, to determine retirement compensation. The formulas have two common threads. The first is that the benefit calculation is based upon the monthly basic pay of grade to which member is entitled under section 1372 or to which he was entitled on the day before retirement or placement on temporary disability retired list, whichever is higher.

The second common thread is that following a series of calculations, the total must be reduced by the excess over 75 percent of the pay upon which the computation was based. Therefore, appellant contends that since his percentage is no greater than 75 after his thirtieth year, appellee should receive a coverture fraction representing the time they were married until his thirtieth year of military service.

The parties married in November of 1967 and appellant’s thirtieth year of service was in July of 1972, resulting in 56 months of marriage. Yet, appellant retired in October of 1973, causing 72 months to elapse during the marriage until retirement. The court found the coverture fraction to be 19.15 percent or 72 months of marriage divided by 376 months of military service. Appellant calculates the fraction at 15.55 percent or 56 months of marriage at the time of his thirtieth year of service divided by thirty (30) years or 360 months. The lower court did not err.

Appellant concedes in his brief that his monthly basic continued to increase. (Appellant's brief, p. 15). In turn, the monthly basic pay used in the retirement computation pursuant to 10 U.S.C.S. § 1401 increased. Additionally, the Office of The Assistant Secretary of Defense assigned an interest rate to the retirement benefits of 7.5 percent and cost of living adjustment of actuals to April of 1988 and 5 percent thereafter. See Plaintiffs exhibit 16. These adjustments raise the amount of money available to appellant during his retirement.

The record reflects that the parties were married while appellant’s monthly basic pay increased to the level utilized in his retirement benefit computation. It is settled that the portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property within the meaning of the Divorce Code. Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987). Additionally, appellant’s pension is earning interest and cost of living adjustments. Where a plan has vested and value increases aside from the contribution of the parties, beyond the date of separation, the increase is marital property. Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986). Accordingly, the lower court evaluated appellant’s pension correctly and assigned appellee the proper coverture fraction.

For all of the foregoing reasons, we affirm the trial court’s findings in part, reverse in part, and remand this case for further proceedings consistent with this opinion.

Jurisdiction relinquished.

      . 10 U.S.C.S. § 1372 states:
      Unless entitled to a higher grade under some other provision of law, any member of the armed force who is retired for physical disability under section 1201 or 1204 of this title or whose name is placed on the temporary disability retirement list under section 1202 or 1205 of this title is entitled to the grade equivalent to the highest of the following:
      (1) The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired.
      (2) The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired.
      (3) The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of his physical examination for promotion.
      (4) The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and disability was discovered as a result of his physical examination for promotion.


author: PER CURIAM: JOHNSON, Judge,

text:
    577 A.2d 210
    COMMONWEALTH of Pennsylvania v. David Roy SMIDL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 22, 1990.
    Filed June 27, 1990.
    Patrick J. Thomassey, Monroeville, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   PER CURIAM:

Order of Trial Court is reversed. Judgment of Sentence is vacated and case is remanded for a new trial. Jurisdiction is relinquished.

JOHNSON, Judge,

dissenting.

I would agree with my esteemed colleagues that the outcome of this case would appear to be controlled by the holding in Commonwealth v. Roxberry, 381 Pa.Super. 314, 553 A.2d 986 (1988). However, since I respectfully believe that Roxberry was not built on solid ground and, in fact, is presently subject to re-examination by our supreme court, Commonwealth v. Roxberry, 100 W.D.Appeal Dkt.1989, appeal granted November 9, 1989, 523 Pa. 649, 567 A.2d 652, I must dissent.

The case now before us involves a defendant charged with robbery, theft and receiving stolen property. On the second day of trial, prior to the jury being brought into the courtroom, defense counsel informed the court that none of the three alibi witnesses would be appearing to testify in support of the alibi defense. Defense counsel stated to the court that two of the witnesses were beyond the authority of the court (last known to reside in Rochester, New York) and the third potential witness had no personal recollection of the events surrounding the incident and his business records were in disarray. Notes of Trial Testimony, May 4, 1982, pages 82-84. As PCHA defense counsel subsequently noted at the evidentiary hearing, there is no indication on the record that the witnesses were ever properly served with subpoenas. PCHA Transcript, July 9,1987, pages 4-5.

At the close of the Commonwealth’s case-in-chief, the court sustained David Roy Smidl’s demurrer to the third count, receiving stolen property. Thereafter, Smidl presented the only testimony in his defense. He testified to having been in downtown Pittsburgh on the evening in question with his girlfriend, her girlfriend, and two other friends. Following the close of the case, the jury deliberated for less than two hours. It convicted Smidl of robbery and theft by unlawful taking or disposition based upon the positive identification made by Susan Braun, an office worker in the grocery store where the robbery occurred, and the testimony of Robert Martin, a Ross Township police officer who had led a warranted search of Smidl’s apartment residence and recovered items identical to those used in the robbery and removed from the store by the robber.

Initially, I would agree with the most distinguished trial judge, the Honorable Robert E. Dauer, that Smidl has failed to demonstrate a reasonable probability that, but for counsel’s allegedly unprofessional error in failing to request an alibi charge, the result of the proceeding would have been different, that is to say our confidence in the outcome would be undermined. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068-2069, 80 L.Ed.2d 674, 698 (1984). As Judge Dauer pointed out in his Opinion filed October 28, 1987:

In this case the victim of the robbery identified defendant as the guilty party both prior to trial and in Court. Physical evidence consistent with the rather unusual items taken by the robber were found in defendant’s home and were identified by the victim. Weighing this evidence against defendant’s unsupported testimony that he was elsewhere when the crimes occurred, the Court concludes that the failure to have requested an alibi instruction does not satisfy the Strickland test for ineffectiveness. To conclude that had the instruction been given the result at trial would likely have been different, that is, to conclude that defendant’s trial was fundamentally unfair, requires speculation too extreme, in light of the applicable test, to overcome the presumption of regularity and effectiveness of counsel.

Opinion, October 28, 1987, page 2. I would have little difficulty affirming the July 10, 1987 and July 5, 1989 orders denying PCHA relief by adopting the analysis of the trial court.

Turning to the seemingly per se rule established in Commonwealth v. Roxberry, supra, I would first note that case was decided in December 1988, some six arid one-half years after the trial conduct here under review. As the distinguished author of the Roxberry opinion, the Honorable Donald E. Wieand, had earlier pointed out in Commonwealth v. Johnson, 347 Pa.Super. 93, 100, 500 A.2d 173, 177 (1985):

We will not “impose upon trial counsel [or appellate counsel] the qualities of a seer ... and counsel will not be deemed ineffective for failing to predict future developments in the law.” Commonwealth v. Triplett, 476 Pa. 83, 89-90, 381 A.2d 877, 881 (1977). On the contrary, we examine counsel’s stewardship under standards as they existed at the time of his actions.

Cf., Commonwealth v. Ahearn, 357 Pa.Super. 404, 406-407, 516 A.2d 45, 46 (1986), appeal denied 514 Pa. 628, 522 A.2d 556, (1987) (table).

The per se rule compelling a trial judge to give an alibi charge regardless of the circumstances did not appear in our jurisprudence until Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985), almost three years after the trial here under review. In Brunner, Judge Wieand relied upon Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980) and Commonwealth v. Van Wright, 249 Pa.Super. 451, 378 A.2d 382 (1977) for the principle that “a failure to give a specific alibi instruction, where warranted, is error requiring a new trial.” 341 Pa.Super. at 70, 491 A.2d at 153. Judge Wieand rejected trial counsel’s explanation that he did not believe the witness, with this:

“The witness had testified; the alibi evidence was before the jury; and appellant was entitled to a specific instruction from the court regarding its significance. When the trial court failed to deliver the required instruction, counsel had a duty to request it to do so and, if the request was denied, to preserve the court’s error by an appropriate objection. To fail in this respect was so unreasonable that it must be equated with constitutionally ineffective assistance.” 341 Pa.Super. at 70, 491 A.2d at 153.

Both Pounds and Van Wright, upon which Judge Wieand relied, involved a requested alibi instruction which had been refused. In Commonwealth v. Van Wright, the testimony of a bartender had placed the question of alibi in issue. This court reviewed Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959), including how alibi evidence must be viewed, and the presumption of innocence. In Van Wright, we held that “[t]his presumption cannot be fully honored if the trial court refuses to give an alibi instruction when a defendant’s evidence, if believed, would establish its applicability.” ' 249 Pa.Super. at 457, 378 A.2d at 385. (emphasis added).

Similarly, in Pounds, our supreme court had to consider whether a retrial was in order where the trial judge had refused a request to instruct the jury on the defense of alibi. The defendant’s testimony concerning his whereabouts was not supported by any other evidence, but was found to be sufficient by the majority of the court to raise an alibi defense. There, the court held that the failure to instruct the jury upon request constituted trial court error which was not harmless, since the defendant bears no burden of proof on alibi and such evidence, even if not wholly believed, might have raised a reasonable doubt of the defendant’s presence at the scene of the crime at the time of its commission and thus, of his guilt. As in Van Wright, Pounds involved a refusal of a request for an instruction.

From my review of the cases, I conclude that it was not until Brunner in 1985 that this court suggested that an alibi instruction might be required regardless of trial counsel’s conduct or desire. I have found no case from our Supreme Court confirming this compulsory rule.

The per se rule established first in Brunner, and followed in Commonwealth v. Nauman, 345 Pa.Super. 457, 498 A.2d 913 (1985) and Roxberry, supra, would compel a trial judge to give an alibi charge regardless of the circumstances and regardless of the wishes of the defendant or defense counsel. In both Brunner and Nauman, the opinion writer concluded that there could be no reasonable basis for failing to request an alibi instruction. In Brunner, defense counsel testified at the PCHA hearing that he did not request a specific alibi instruction because he did not believe the alibi witness. Counsel may well have feared that focusing the jury’s attention on patently false alibi evidence could have diverted the jury from considering some other plausible aspect in the case more favorable to the defendant.

If I understand the thrust of Brunner, Nauman and Roxberry, those cases conclude that there can be no reasonable basis for not wanting an alibi charge and this decision is too important to be left to the defendant and defense counsel. I cannot agree.

Moreover, if the per se command of Roxberry is to be followed, it would appear that the “prejudice” review found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and carried forward in this jurisdiction in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) would no longer apply, even where defense counsel finds the alibi testimony incredible, as in Brunner. I seriously doubt that our Supreme Court would sanction this.

Recently, this court has addressed the obverse of the situation presented by Brunner and its progeny. Where a criminal defendant does not testify, and specifically requests the court not to charge that he has the right not to testify and that no adverse inference may be drawn from his failure to take the witness stand, we have held that it is error for the court to give the instruction concerning a defendant’s right to remain silent. Commonwealth v. Rasheed, 392 Pa.Super. 280, 572 A.2d 1232 (1990).

Our rationale in Rasheed was that defense counsel and his or her client should be able to decide if they want the jury to focus on the fact that the defendant has not testified. We recognized that the jury will be aware of this fact, but in some cases the defendant may not want this highlighted. 392 Pa.Super. at 288, 572 A.2d at 1235. Similarly, in these cases involving an alibi defense, I should think that the defendant and defense counsel should not be deprived of the right to control trial strategy. In my view, the majority on this appeal is moving counter to the direction of our court as manifest in Rasheed, and away from the autonomy of the defendant and defense counsel without any clear enhancement of the administration of justice.

My review of the charge actually delivered persuades me that it was entirely fair. We should not lose sight of our obligation, as an intermediate appellate court, to examine the entire jury charge as a whole to determine whether it was fair or prejudicial. Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983); Commonwealth v. Sparks, 351 Pa.Super. 320, 328, 505 A.2d 1002, 1006 (1986). I find no fault with the charge as given.

In order to join with my colleagues in directing a new trial on this appeal, I would have to conclude that, in 1982, (1) defense counsel was ineffective for not requesting an alibi instruction and (2) the most learned trial judge committed reversible, prejudicial error when he did not (a) anticipate this court’s quantum leaps of 1985 and beyond as expressed in Brunner and its progeny and (b) deliver, sua sponte, an alibi instruction that had not been requested nor, in my judgment, was required. I am not inclined towards either conclusion.

On July 5, 1989, after due consideration, Judge Dauer denied the prayer of the post conviction petition. This occurred following remand of this appeal from our court, where the original appeal had been taken from Judge Dauer’s order of July 10, 1987 which also denied post conviction relief. On remand, a second evidentiary hearing was held, where former trial and appellate defense counsel testified, prior to the entry of the July 5, 1989 order. I would affirm both orders denying post conviction relief. Therefore, I respectfully dissent.


author: JOHNSON, Judge:

text:
    577 A.2d 214
    COMMONWEALTH of Pennsylvania, Appellant v. Clifford Henry SALE, Jr.
    Superior Court of Pennsylvania.
    Submitted April 3, 1990.
    Filed July 2, 1990.

      David J. Flower, Dist. Atty., Somerset, for Com., appellant.
    Joseph B. Policicchio, Somerset, for appellee.
    Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
   JOHNSON, Judge:

The Commonwealth appeals from a pretrial ruling excluding evidence of a business’ reputation as a house of ill repute or prostitution in a prosecution of the owner on charges of promoting prostitution, gambling and criminal conspiracy. In its Notice of Appeal, the Commonwealth has certified that the exclusion order seriously impairs its ability to present its case and prove the crime. We determine that evidence of a business’ reputation as a house of ill repute is not admissible to establish the actual character of the business. Accordingly, we affirm.

In 1988, undercover operatives of the Pennsylvania State Police conducted an investigation involving the Adult Country Bookstore in Stoneycreek Township, Somerset County. The Bookstore was allegedly owned by Clifford Henry Sale, Jr., the named defendant in the case here under review. One undercover officer allegedly witnessed payoffs or offers of payoffs made by a male employee to patrons playing a video poker machine. Another officer allegedly was given a massage by a female employee who allegedly offered to engage in oral sex with the undercover officer in exchange for payment over and above the charge for the massage. The single encounter between the officer and the female employee is the only direct evidence available to prove that the Bookstore is a house of prostitution, as defined in 18 Pa.C.S. § 5902(f).

The District Attorney desires to call three individuals “who are familiar with [the Bookstore’s] reputation in the community as being a place where prostitution is regularly carried on or a house of prostitution” and who would testify to the fact “that it is a place where prostitutes are available and that it falls within the definition of a house of prostitution, a place where prostitution is regularly carried on ... [a]nd that would be its reputation, general reputation in the community.” Notes of Testimony, September 1, 1989 (filed September 6, 1989), pages 1, 2.

The Honorable John M. Cascio held a pretrial conference on the matter and entered the order excluding reputation and/or character evidence regarding the Adult Country Bookstore, prompting this appeal. Relying upon Commonwealth v. Murr, 7 Pa.Super. 391 (1897) and its progeny, the Commonwealth argues that evidence of reputation is admissible in prostitution cases. Legislative enactments 18 P.S. § 4512 (repealed) and 18 P.S. § 801 (repealed) codified prior caselaw regarding the admissibility of reputation evidence to show that an establishment was involved in prostitution. See Commonwealth v. Visotsky, 129 Pa.Super. 86, 195 A. 148 (1937); Commonwealth v. Dolan, 155 Pa.Super. 453, 38 A.2d 497 (1944). These statutory enactments incorporated and thus superseded the Murr holding. Each statutory provision provided:

In the trial of any person charged with violation of any of the provisions of this act, testimony concerning the reputation of any place, structure, or building, or of the person or persons who reside in or frequent the same, and of the defendant, shall be admissible in evidence in support of the charge.

18 P.S. § 4512 (repealed) and 18 P.S. § 801 (repealed). After enactment of 18 P.S. § 4512 and 18 P.S. § 801, the authority for the introduction of reputation evidence in this area was based upon the statute, not caselaw. Both section 18 P.S. § 4512 and 18 P.S. § 801 have been repealed. The present statute addressing prostitution and related offenses, 18 P.S. § 5902, does not contain any provision indicating that evidence of bad reputation is admissible. We consider this omission purposeful. A material change in the language of a statute indicates a change in legislative intent. Midvale Co. v. Unemployment Compensation Board of Review, Department of Labor & Industry, 165 Pa.Super. 359, 67 A.2d 380 (1949). The legislature by omitting any language regarding the admissibility of reputation evidence to show the character of a business as a house of prostitution has indicated its intent that such evidence no longer be permissible. Our research has not disclosed any cases interpreting 18 Pa.C.S. § 5902 on this issue. However, reference to the body of commentary in this area suggests that the admission of this type of evidence is dependant upon statute. Accordingly, we find no support for admitting such evidence absent a specific statutory provision permitting its consideration. Any such proffered evidence is, therefore, inadmissible.

Order of September 1, 1989 is AFFIRMED. Jurisdiction relinquished.


author: TAMILIA, Judge:

text:
    577 A.2d 215
    Malcolm WILLIAMS, Appellant, v. Mildred THORNTON and Dorothy Thornton Williams.
    Superior Court of Pennsylvania.
    Submitted June 7, 1990.
    Filed July 12, 1990.

      Bernard B. Hughes, Philadelphia, for appellant.
    Amy Babiak-Donohue, Philadelphia, for appellees.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

Appellant and appellee Dorothy Williams were married in 1984 and separated the following year. Two daughters were born to the couple prior to marriage, Keneeth, now age 7, and Kenya, now age 6. After separation, Mrs. Williams lived with her sister, appellee Mildred Thornton, and the two girls while appellant had partial custody every Sunday pursuant to a court Order derived from an agreement between the parties. On January 19, 1987, Mrs. Williams left her apartment to go to the store and never returned. Her disappearance is still being investigated. Ms. Thornton subsequently filed for custody of the girls and the trial court, on August 19, 1988, awarded primary physical custody to Ms. Thornton with appellant being awarded visitation every Sunday from 10:00 a.m. until 6:00 p.m.

On December 21, 1988, appellant filed a petition to vacate custody and for contempt which was dismissed for lack of prosecution. On July 24, 1989, appellant again filed a petition to vacate custody and for contempt which is still pending. On September 25, 1989, appellant filed an emergency petition to vacate custody claiming the children were being abused by Ms. Thornton, and he took the children for two weeks, refusing to return them to Ms. Thornton. The court scheduled a hearing for October 2, 1989 on the emergency petition, at which time the court determined that it was not an emergency situation warranting an expedited hearing and ordered the children be returned to Ms. Thornton. The court further ordered appellant’s petition to vacate custody filed July 24, 1989 was to proceed through the normal, ppe-trial process. The court terminated appellant’s partial custody rights pending resolution of the petition.

Initially, we must determine whether this Court has jurisdiction to hear this matter as appellee maintains the Order of October 2, 1989 was not a final and appealable Order. We agree. To be appealable, a custody Order must be a final Order under Pa.R.A.P. 702, Final Orders, and 42 Pa.C.S. § 5105, Right to appellate review. For this Court to have jurisdiction, the appeal must be from a final Order unless otherwise permitted by statute. Blackman v. Katz, 390 Pa.Super. 257, 568 A.2d 642 (1990); Waddell v. Trostel, 336 Pa.Super. 527, 485 A.2d 1208 (1984). A final Order is one which effectively ends litigation or disposes of the entire case. Blackman, supra; French v. United Parcel Service, 377 Pa.Super. 366, 547 A.2d 411 (1988); Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1985); see also Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985).

On October 30, 1989, appellee filed a motion to quash this appeal which was denied by this Court on November 21, 1989. In doing so, we relied on Parker, supra, which held that despite the fact the trial court provided for review of its Order in the future, where such review was only to be upon application by either party and was not scheduled by the lower court, the Order was appealable. We, however, upon careful review of the record and disposition in this case, believe Parker is distinguishable from the facts here and therefore is not applicable. In Parker, a full hearing on the custody petition was held and a final Order entered, which was subject to review on motions by either party, after stated and established periods of shared custody were awarded to each. There was clearly a final Order subject to the right in either party to request a review. In contrast, this case is pending before the trial court in its normal post-petition progression toward a full hearing, independent of the emergency hearing on custody, which resulted in the present Order. The trial court, by its Order, temporarily suspended father’s custody after hearing, pending a full custody hearing on the petition before the court. As such, the court determined the emergency hearing did not warrant escalation of the normal full custody procedure.

Appellant appeals from this Order, claiming the court abused its discretion by sua sponte terminating his partial custody rights without taking testimony or developing a factual record of any kind. As appellant points out, the primary concern in a child custody case is the best interests of the child, including the child’s physical, intellectual, emotional, moral and spiritual well-being. Hartman v. Hartman, 328 Pa.Super. 154, 476 A.2d 938 (1984). Given appellant’s prior actions and history of violence, we find the trial court’s Order quite proper.

The record shows appellant violated the custody Order in effect by taking the children for two weeks and refusing to return them to Ms. Thornton. Only through police intervention was Ms. Thornton able to regain custody of the children. Further, appellant has a criminal record, revealed to the court through the home investigation, and at the time of the hearing, there was an outstanding bench warrant against appellant. In view of these facts—especially appellant’s purposeful disregard of Judge Canuso’s custody Order—we find the record was sufficiently complete, based on the best interests of the children, to justify the suspension of appellant’s partial custody rights pending a full hearing. Since we cannot proceed further to determine the merits of the custody matter without the benefit of a full custody hearing in the trial court, we cannot grant a supersedeas to the trial court’s action in suspending partial custody or consider further the custody petition before the trial court.

Appeal quashed and Order affirmed.

Jurisdiction relinquished.


author: DEL SOLE, Judge:

text:
    577 A.2d 218
    Debra D. BOYLAN, Appellee, v. Patrick C. BOYLAN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 1, 1990.
    Decided July 18, 1990.

      Neil Hurowitz, King of Prussia, for appellant.
    John Joseph Grenko, Reading, for appellee.
    Before DEL SOLE, JOHNSON and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order directing that the parties share joint legal custody of their four minor children and that Appellee-mother be awarded primary physical custody of these children subject to Appellant-father’s rights of visitation and partial custody. Father takes this appeal contesting this ruling on three distinct grounds. He contends that the court neglected to apply requisite consideration to the religious upbringing and training of the children, and to the stability and environment he could offer the children. He makes further objections regarding the mother’s initial obtainment of custody in an emergency petition and the delay which occurred prior to the trial of this matter.

In reviewing a custody order we remain mindful of certain basic principles. The scope of review to be applied by appellate courts in custody cases is very broad. However, this broad scope of review should not be construed as providing this court with a license to nullify the fact-finding functions of the trial court. Albright v. Com. ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980). An appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s conclusions. But this court may not interfere with those conclusions unless they are unreasonable in light of the factual findings and, thus, represent a gross abuse of discretion. Jones v. Stone, 343 Pa.Super. 416, 495 A.2d 205 (1985). Finally, in an appeal from a custody award we must recall that the paramount consideration in custody cases between two parents is the best interest and welfare of the children. Com. ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

Appellant’s first challenge to the trial court’s award is grounded on the religious education and development of the children. He contends that the court erred in failing to place primary physical custody of the children with him, since he is the parent of the same religious faith as the children. Appellant submits that the evidence at trial indicated that the parties agreed to raise their children in the Catholic faith. The children were baptized Catholic, attended Catholic schools, if school age, and attended Catholic services regularly. After separation the mother began to take the children to a Methodist church for Sunday service, while the father would take the children to the Catholic church during his periods of physical custody.

At trial Appellant offered the testimony of a Catholic priest who opined that the children’s attendance at churches of two different faiths could lead to confusion and was unacceptable in the Catholic faith. Appellant suggests that the trial court erred when it failed to consider this evidence and the potentially damaging impact on the children caused by a disruption in their religious development.

We disagree with the Appellant’s contention that the court failed to consider this issue. The court specifically acknowledged the children’s Catholic upbringing prior to the parties’ separation. The court even stated that “this religious anchoring appears to be of significant consequence in their lives.” However despite the fact that the mother had failed to continue this training and had begun to expose the children to a different faith, the court found that physical custody of the children should remain with the mother.

Although religion is an important matter and should be given some consideration in child custody matters, it is not determinative. Rinehimer v. Rinehimer, 336 Pa.Super. 446, 485 A.2d 1166 (1984). In this case the court considered the children’s religious background but correctly did not make this one factor alter what it believed to be in the children’s best interest—to remain in their mother’s custody. The only matter before us, regarding the religious training of the children, concerns whether Appellant should be awarded custody because he is of the same faith in which his children have been reared up to the present time. As we have stated, this single factor should not be determinative. The trial court advised the parties to “work out some arrangement concerning the children’s religious training” for the children’s sake, and we too echo this advice. As this court has stated: “Generally where both parents demonstrate a desire to promote the religious education of the child, each in his or her own faith, the court shall assume a neutral stance as to the issue.” Rinehimer v. Rinehimer, supra.

Appellant also objects to the custody order based upon his belief that the record indicates that he would provide the children with a more stable home environment. Appellant points to the fact that the mother has moved the children on three occasions, that the children now reside with their mother nearly 60 miles from the original family home and the children’s familiar friends and neighborhood surroundings and that the mother’s residence is only a two bedroom, one bath home while his home is a three bedroom, one and one-half bath home.

While it is true that stability is a factor in a custody decision, Bresnock v. Bresnock, 346 Pa.Super. 563, 500 A.2d 91 (1985), the trial court did not overlook this factor. The trial court acknowledged that mother moved the children and noted that the first move, out of the marital home to the children’s aunt’s home for one week, was more in the nature of a visit. The second move was dictated by necessity when the residence was sold. The court did not view these moves with disfavor and further concluded that the new residence although “not as sumptuous as [father’s] residence, is actually quite nice and certainly more than adequate for the needs of the children.”

The court also acknowledged that the children would be undergoing a change in their physical environment, however, it was the court’s belief that they should reside with the parent with whom they had their primary emotional bonding. Since the mother had been the primary caretaker throughout the children’s lives and since the father worked long hours, including most evenings and Saturdays, the children had forged an strong emotional tie to their mother. It was certainly proper for the court to give positive consideration to the parent who has been the primary caretaker of the children. Haag v. Haag, 336 Pa.Super. 491, 485 A.2d 1189 (1984). “Courts have long recognized the importance of a continuing and stable custodial relationship with a parent which satisfactorily serves the child’s needs.” Fisher v. Fisher, 370 Pa.Super. 87, 92, 535 A.2d 1163 (1988). The trial court noted that the children were happy in their new home “and appeared to be thriving; their school grades were better than ever before.”

The trial court also based its determination by considering the preference of the children, who each stated that they would prefer to reside with their mother. Each child gave specific reasons why they wished to remain with their mother and the trial court stated that it was impressed by the children’s “candor, reasoning, and obvious intelligence.” The trial court properly recognized that the children’s wishes would not be controlling but did afford them considerable weight under the circumstances. Since the weight to be given a child’s preference is to be determined by the trial judge who sees and hears the child and since this determination depends upon the age, maturity and intelligence of the child, we find no error with the trial court’s consideration of this testimony. Snarski v. Krincek, 372 Pa.Super. 58, 538 A.2d 1348 (1988).

Finally Appellant asserts that he was denied due process of law when the mother was awarded temporary custody of the children as a result of a emergency petition which made false allegations. He maintains that as a result of this order the children were able to become dependent upon their mother during this period of time until the trial, 16 months later.

We decline to address the merits of mother’s emergency-petition since this is an appeal from the final custody order. We do note, however, that the trial court did not focus on the children’s attachment to their mother during the last 16 months in making its award; rather, the court recognized that the children had a strong emotional bond with their mother who was their primary caretaker since birth.

We find adequate support for the trial courts ruling in this matter and we affirm its custody order.

Order affirmed.