author: CIRILLO, Judge:

text:
    464 A.2d 1359
    Jacob WOLK v. Thelma Dym WOLK, Appellant. Jacob WOLK v. Thelma Dym WOLK, Appellant.
    Superior Court of Pennsylvania.
    Argued May 25, 1983.
    Filed Aug. 26, 1983.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.

      John J. Dean, Pittsburgh, for appellant.
    Frederick N. Frank, Pittsburgh, for appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

The parties were married on October 25, 1959 and lived together until a domestic dispute arose in June, 1975. The husband filed a divorce action on September 3, 1980, alleging that the marriage was irretrievably broken, and requesting equitable distribution of marital property as well as counsel fees. The wife filed an Answer and New Matter averring, inter alia, that the Divorce Code was constitutionally defective. She also entered a counterclaim for alimony, alimony pendente lite, counsel fees and maintenance of insurance policies.

A hearing was held on March 2, 1981, at which time the court found the marriage to be irretrievably broken. The court did not adjudicate the New Matter or property rights at that time. On March 3, 1981 the wife appealed at No. 333 Pittsburgh, 1981.

Subsequently, the lower court signed a series of Orders, dated March 2, 1981, which stated that the court would not adjudicate the New Matter, would enter a bifurcated divorce and a decree of divorce dissolving the marriage. These orders were then docketed with the prothonotary and on May 15, 1981 the wife appealed at No. 538 Pittsburgh, 1981.

Initially, we are compelled to address the issue of the propriety of severing economic claims from divorce claims in this matter. The New Divorce Code provides in pertinent part:

... In the event that the court is unable for any reason to determine and dispose of the matters provided for in this subsection within 30 days after the master’s report has been filed, it may enter a decree of divorce or annulment

Act of April 2, 1980, P.L. 63, No. 26, § 401, 23 P.S. § 401(b). Similarly, the Pennsylvania Rule of Civil Procedure concerning court hearings in divorce or annulment actions states:

(c) The court need not determine all claims at one time but may enter a decree adjudicating a specific claim or claims.

Pa.R.C.P. 1920.52(c), Adopted June 27, 1980, effective July 1, 1980.

The preceding language demonstrates a legislative awareness that situations could arise in which a single order would not suffice. It is clear, therefore, that the intent of the legislature is to permit bifurcation. However, there is no requirement which mandates bifurcation nor obligates the court to find clear and compelling necessity before it bifurcates a proceeding.

There are several advantages which appertain to the concept of bifurcation. First, it accelerates the actual dissolution of a marriage found to be irretrievably broken since the time needed to obtain a divorce is substantially shorter than the time needed for the disposition of marital property. This allows the parties to quickly begin the task of restructuring their lives. We note that the objectives of the Assembly in enacting the Divorce Code are set forth in Section 102(a) which provides in pertinent part:

(a) The family is the basic unit in society and the protection and preservation of the family is of paramount public concern. Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to:
(1) Make the law for legal dissolution of marriage effective for dealing with the realities of matrimonial experience.
(3) Give primary consideration to the welfare of the family rather than the vindication of private rights or the punishment of matrimonial wrongs.
(4) Mitigate the harm to the spouses and their children caused by the legal dissolution of the marriage.

Act of April 2, 1980, P.L. 63, No. 26, § 102, 23 P.S. § 102(a)(1), (3) and (4).

It is apparent that a speedy resolution of the divorce issue is within the purview of the Code. Moreover, as the Honorable Eugene B. Strassburger III of the Court of Common Pleas of Allegheny County commented in the case of Casey v. Casey, 129 P.L.J. 42, 44 (1981):

... [T]hese goals [of the divorce code] can be accomplished only by the prompt dissolution of a marriage that is demonstrably over (as defined by the code), and allowing the parties to restructure their lives. The goals cannot be accomplished by tying the parties to a dead marriage while all of the conflicts and time-consuming financial details are litigated....

Bifurcation separates the termination of the marriage from the distribution of property so that the marriage and each party’s personal life are not held hostage to economic demands. At the same time, the dependent spouse is not economically disadvantaged by the fact of the divorce being issued because support and/or alimony pendente lite are required to continue at their pre-divorce levels pending resolution of the economic matters. Klein v. Klein, 16 D & C 3d 651 (1980).

There are also several tax advantages that come into play when considering bifurcation, such as; a spouse may remarry and file a joint federal income tax return with the new spouse; a spouse may avoid filing status as married filing separately; stock redemption attribution rules may be avoided [I.R.C. § 318]; losses on transfers and sales between ex-spouses may be recognized [I.R.C. § 267]; an individual spouse may elect the capital gain exclusion on sale of family residence [I.R.C. § 121]; and gain on the sale of depreciable realty may be taxed as capital gain rather than as ordinary income. [I.R.C. § 1239]. Rounick, Pennsylvania Matrimonial Practice, Section 18.3, page 148.

Finally, as revealed by the experience in Allegheny County, bifurcation encourages case settlements between the time the divorce decree is issued and the property distribution issues reach trial. These settlements are an obvious benefit to our inundated courts.

On the other side of the coin, there are many disadvantages related to bifurcation. If the cases are not settled by the parties, then oftentimes two hearings are necessary, thus burdening an already overcrowded court calendar. Also, despite the fact that divorce is achieved rapidly, there is still a significant delay in the resolution of economic issues, thus having a dilatory effect on the parties’ efforts to reshape their lives. From a tax standpoint, bifurcation prevents the parties from filing a joint federal income tax return and therefore a favorable tax rate is unavailable.

Another problem which arises where a case has been bifurcated involves the impact that the death of one of the parties, subsequent to the issuance of the divorce decree but prior to a determination of the economic issues, has on the surviving spouse’s right to equitable distribution. This issue was painstakingly analyzed in an article authored by the Honorable Lawrence W. Kaplan. Judge Kaplan noted that where a case has been bifurcated and one party dies before there has been a resolution of the ancillary issues, the other spouse is precluded from enjoying the benefits provided under the Probate, Estates and Fiduciaries Code. Furthermore, the death of one of the parties would have an adverse effect on the surviving party’s equitable distribution claim. Though this spouse would still have a claim against the decedent’s estate under the Divorce Code’s equitable distribution process, that claim would be seriously hampered by the surviving spouse being rendered incompetent as a witness by the Dead Man’s Rule.

Still another issue which could arise relates to the effect that a bifurcated divorce has on a divorced spouse’s right to receive the proceeds of a life insurance policy in which that spouse was named a beneficiary. In Simpkins v. Dodolak, 1 Pa.Fiduc.2d 120 (1980), a Clearfield County case, the court held that since the husband had retained the right to change his beneficiary at any time, then under the Act of April 18, 1978, P.L. 42, No. 23, Sec. 8, 20 Pa.C.S.A. § 6111.1, the rights of the wife were revoked regarding the proceeds of the policy in question. Undoubtedly, to this list of detriments associated with bifurcation, numerous other possibilities can be added.

In light of the antecedent discussion, it is obvious that the decision to bifurcate, though permissible, should not be made pro forma, as in the case of Klein v. Klein, supra. Rather, such a determination should be made only after the disadvantages and the advantages have been carefully explored and analyzed. Each case must be reviewed on its own facts and only following the court’s determination that the consequences of bifurcating the case will be of greater benefit than not bifurcating, should it grant the petition. In so holding, we reject the rationale of Smolinsky v. Smolinsky, 5 Phila. 364 (1981), whereby the trial court required compelling reasons to be shown before granting a petition to bifurcate. Such a strict test is not demanded by the legislature. The eventual decision should be the approach which is fair to both parties.

Since the decision to bifurcate is discretionary, we will review lower court decisions pertaining to bifurcation by using an abuse of discretion standard. So long as the trial judge assembles adequate information, thoughtfully studies this information, and then explains his decision regarding bifurcation, we defer to his discretion. In other words, this determination should be the result of a reflective examination of the individual facts of each case.

This scope of review is consistent with other Superior Court decisions which deal with the Divorce Code. See: Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983); Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983) (in determining the propriety of property distribution, the Superior Court uses an abuse of discretion standard of review); See also: Geyer v. Geyer, 310 Pa.Super. 456, 456 A.2d 1025 (1983) (abuse of discretion standard is appropriate when reviewing awards of alimony); See also: Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983) (orders for alimony pendente lite, counsel fees and permanent alimony should be reviewed for an abuse of discretion by the lower court). Likewise, our position in this matter, of requiring the trial judge to articulate reasons for his decision and then reviewing this determination for an abuse of discretion, is analogous to the procedure used under the Sentencing Code. See: Commonwealth v. Wilson, 306 Pa.Super. 372, 452 A.2d 772 (1982); Commonwealth v. Rooney, 296 Pa.Super. 288, 442 A.2d 773 (1982).

The wife in this instance has the burden of proving that the trial judge abused his discretion. In defining this standard, the courts of this Commonwealth have articulated the following:

... When the court has come to a conclusion by the exercise of its discretion, the party complaining of it on appeal has a heavy burden; it is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power. “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, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” (Citation omitted).

Garrett’s Estate, 335 Pa. 287, 292-93, 6 A.2d 858, 860 (1939); See also: Mackarus Estate, 431 Pa. 585, 246 A.2d 661 (1968); Campbell v. Heilman Homes, Inc., 233 Pa.Super 366, 371, 335 A.2d 371, 373 (1975) (HOFFMAN, J., dissenting).

In the case at bar, the lower court failed to exercise its discretionary powers. Its decision to bifurcate was based upon an accepted practice in Allegheny County, not upon the particular facts of this case. Therefore, we must reverse the Orders and Decree of Divorce entered by the trial court on March 2, 1981 and remand for a hearing in accordance with this opinion. Because of this decision, we need not address the other contentions in appellant’s brief. Jurisdiction is relinquished.

Reverse and Remand.

      . The Act of April 2, 1980, P.L. 63, No. 26, § 201, 23 P.S. § 201(d).

      . In Klein v. Klein, supra, at 657-58 Judge Wettick reasoned:
      Alimony pendent lite, if literally construed, means alimony while the litigation is pending, (citation omitted). Under prior law, the duty to pay alimony pendente lite ended with the divorce because this was the only subject of the litigation. In Ponthus v. Ponthus, 70 Pa.Superior Ct. 39 (1918), the court held that alimony pendente lite continued while an appeal from the issuance of a divorce decree is pending. According to this court, the purpose of alimony pendente lite is to permit a dependent spouse to meet the expenses of carrying on or defending an action (including reasonable living expenses), so payments should continue as long as the action is pending. Also see: Commonwealth ex rel. Entler v. Entler, 33 Lehigh 23 (1968). Thus so long as any claims raised in the divorce litigation are still pending, the principles enunciated in Ponthus bar automatic termination of alimony pendente lite.

      . Kaplan, "The impact of death on a pending divorce,” Pennsylvania Law Journal—Reporter, January 18, 1982, at 3 and 24.

      . Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 101 etseq.

      . Act of July 9, 1976, P.L. 586, No. 142, §2, as amended by the Act of April 28, 1978, P.L. 202, No. 53 § 10(75), 42 Pa.C.S.A. § 5930.

      . Act of December 30, 1974, P.L. 1052, No. 345, § 1, fli amended by the Act of October 5, 1980, P.L. 693, No. 142, § 401(a), 42 Pa.C.S.A. § 9701 et seq.


source: Caselaw Access Project

license: Public Domain

text:
    464 A.2d 1363
    COMMONWEALTH of Pennsylvania v. Raymond A. VESAY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 22, 1983.
    Filed Aug. 26, 1983.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.
    See also 287 Pa.Super. 618, 428 A.2d 269.

      William R. Bunt, New Bloomfield, for appellant.
    Charles J. Rehkamp, Jr., District Attorney, New Bloomfield, for Commonwealth, appellee.
    Before CERCONE, President Judge, and CIRILLO and HOFFMAN, JJ.
   CIRILLO, Judge:

Presently before this Court is an appeal from an Order of the Court of Common Pleas of Perry County denying appellant the relief prayed for in his petition filed under the Post Conviction Hearing Act (P.C.H.A.).

The appellant was initially charged with the offenses of theft by receiving stolen property, conspiracy to commit burglary, robbery, unlawful carrying of firearms, conspiracy to commit robbery, and aggravated assault. On September 20, 1978, pursuant to the terms of a negotiated plea, the appellant entered pleas of guilty to one count of theft by receiving stolen property, a third degree felony, and to one count of robbery, a first degree felony. The pleas were accepted by the Commonwealth in full satisfaction of all counts pending against the appellant. The Commonwealth recommended that concurrent sentences be imposed. After an extensive colloquy, the Court accepted the pleas but reserved specifically the power to sentence irrespective of this recommendation.

A pre-sentence investigation revealed 28 juvenile adjudications mostly for burglary and larceny. In addition, appellant, at the time of the offenses, was an escapee from Schuylkill County Prison and was also on parole from the State Correctional Institution at Camp Hill. On November 20, 1978, the Court of Common Pleas sentenced the appellant to eight to twenty years on the robbery charge and three and one-half to seven years on the theft by receiving charge, sentences to run concurrently.

The appellant filed a pro se motion for reconsideration and counsel filed a post-verdict motion claiming the sentences were unduly severe in light of the nature of the offenses, the circumstances surrounding the offenses, and the appellant’s character and attitude. These motions were denied and dismissed by the Court on December 1, 1978.

On January 3, 1979, the appellant was granted leave to appeal to the Superior Court in forma pauperis. On appeal, the appellant challenged the propriety of the sentences imposed: The Superior Court, 287 Pa.Super. 618, 428 A.2d 269, affirmed the judgment of sentence on July 18, 1980. Thereafter, on April 23, 1981, the appellant filed a petition under P.C.H.A. seeking a new trial and/or a correction of sentence. Following á P.C.H.A. hearing, the Court of Common Pleas denied the appellant’s petition except for appellant’s right to file nunc pro tunc a petition for allowance of appeal to the Supreme Court. The present appeal followed.

Appellant contends that the P.C.H.A. court erred in refusing to set aside his guilty plea or to lessen the severity of his sentence. He argues that he is entitled to collateral relief on three grounds: (1) that his plea was the result of an illegal confession and his counsel was ineffective in failing to move for its suppression; (2) that counsel was ineffective for failing to personally investigate the crime; and (3) that trial counsel was ineffective for leading the appellant to believe that he would receive a substantially lighter sentence than he actually received. A review of the record in light of appellant’s claims indicates that they are without merit. We therefore affirm the P.C.H.A. court’s denial of his petition.

Appellant argues first that he should be permitted to withdraw his guilty plea because it was motivated by a constitutionally defective confession and his counsel was ineffective in failing to move for its suppression. Appellant claims that the confession and statements given to the two arresting officers were based on statements by the officers that he would “get off easier”, he would receive a “light sentence”, and that his brother Richard, who was in custody at the time for an unrelated offense, would receive favorable treatment if appellant pleaded guilty. After a thorough review of the record of the P.C.H.A. hearing, it is evident that this issue is solely one of credibility; the testimony of appellant and of the two arresting officers stand in direct contradiction. The P.C.H.A. court, as trier of fact, resolved the credibility issue against the appellant, and, in view of the amply sufficient record supporting that determination, it must be sustained. Commonwealth v. Riddick, 492 Pa. 430, 424 A.2d 1266 (1981); Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741 (1977).

As to appellant’s contention that trial counsel was ineffective for failing to file a motion to suppress this confession, it has been well-established that counsel cannot be deemed ineffective for failing to advance frivolous issues; only when an abandoned claim is of arguable merit need we inquire into whether counsel had reasonable grounds for not pursuing it. Commonwealth v. Shore, 487 Pa. 534, 410 A.2d 740 (1980). The P.C.H.A. court found that even if counsel had filed a motion to suppress the evidence, it would have been highly unlikely the result would have been other than it was. At trial, evidence was presented in the form of a valid photographic identification of the appellant by an eyewitness, as well as strong circumstantial evidence in the form of possession of a large quantity of two-dollar bills, similar to the consecutively numbered two-dollar bills taken from the scene of the alleged crime. We cannot deem counsel ineffective for failing to file a fruitless motion to suppress.

Appellant next argues that he was ineffectively represented by counsel because his failure to investigate the alleged crimes in more detail demonstrated an unwillingness to actively pursue appellant’s defense. The test for determining whether a defendant has been denied effective assistance of counsel is well settled. “ [Counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967) (emphasis in original). The test for competency “is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record”, but whether counsel’s assessment of appellant’s case and his advice were reasonable. Commonwealth ex rel. Washington v. Maroney, Id., 427 Pa. at 604, 235 A.2d at 352-53. Furthermore, in order to be entitled to relief under a theory of ineffective assistance of counsel, it must appear that counsel’s action or inaction was prejudicial to the defendant. Commonwealth v. Gans, 271 Pa.Super. 193, 412 A.2d 642 (1979).

We are unpersuaded that counsel’s failure to personally investigate was unreasonable. Counsel was provided with police reports and statements of witnesses. Moreover, the appellant does not show that he was prejudiced by trial counsel’s lack of personal investigation. Appellant does not reveal any additional information which trial counsel would have discovered had he conducted a personal investigation besides the appellant’s lengthy criminal record. This is an insufficient basis upon which to find ineffective assistance of counsel.

Finally, appellant argues that he was ineffectively represented by counsel because his trial counsel allegedly persuaded him to plead guilty by promising appellant that he would receive a lesser sentence than the term he actually received. Our Supreme Court in Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978) has stated:

[ajppellant’s claims of ineffectiveness must be evaluated in the context of his guilty plea. Upon entry of a plea of guilty, all grounds of appeal are waived other than challenges to the voluntariness of the plea and the jurisdiction of the sentencing court____ Thus allegations of ineffective assistance of counsel in connection with entry of the guilty plea will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea.

482 Pa. at 640-41, 394 A.2d at 504-505. (Citations omitted).

Turning now to the merits of the appellant’s claim, the issue presented is essentially an issue of credibility between the testimony of trial counsel and that of the appellant. The hearing court, as trier of fact, resolved the credibility issue in favor of the guilty plea counsel. It is hornbook law that we will not disturb findings of the hearing court on appeal when they are supported by the record. Commonwealth v. Wallace, 495 Pa. 295, 297-300, 433 A.2d 856, 858 (1981); Commonwealth v. Abbruzzese, 293 Pa.Super. 246, 250-252, 438 A.2d 977, 979 (1981). Instantly, the following excepted portions of the P.C.H.A. hearing record indicate that trial counsel testified that he never guaranteed appellant a lesser sentence.

[TRIAL COUNSEL]

I recall discussing with Mr. Vesay—because in one of his previous letters to me he seemed concerned about his sentence and wanted to know whether he could get two years in jail and fifty years parole, or in lieu of that he would like to have gotten off with a hundred years parole as a sentence on these things. I recall discussing sentence with Mr. Vesay. I didn’t write this down but I told him that our Judge didn’t have much of a track record on armed robbery that I was aware of because there just haven’t been that many in his judicial district, but I was aware that about a year or so before three Philadelphia individuals had been involved in an armed robbery of a bank and one of them had gotten a four to twelve year sentence, and another one of them had got a one and a half to five year sentence.
[PCHA COUNSEL FOR APPELLANT]
Q. So you told him that?
[TRIAL COUNSEL]
A. Yes. I also remember telling him, as I tell all my clients, that I do not make the final decision on what the sentence is.
[PCHA COUNSEL FOR APPELLANT]
Q. Did he ask you what you thought he would get? [TRIAL COUNSEL]
A. I think he did and I think that’s when I told him I really didn’t have ... the only track record I knew that Judge Quigley had at that time was the four-to-ten for that one from Philadelphia, and one and a half to five for her accomplice.
[PCHA COUNSEL FOR APPELLANT]
Q. Was this before the plea?
[TRIAL COUNSEL]
A. I believe so. My conference with him, according to my notes, was prior to his tendering a plea.

P.C.H.A. Hearing Transcript 7/13/81, at 57-58. '

Moreover, the appellant himself, in testifying as to what advice counsel gave him just prior to the entry of his guilty pleas, testified as follows:

[PCHA COUNSEL FOR APPELLANT]
---- Now what if any other reasons do you have concerning your sentence that you received?
[APPELLANT]
A. I didn’t believe I was going to get as much time as I did.
[PCHA COUNSEL FOR APPELLANT]
Q. Did you have discussions with Mr. Walz about what your sentence would be?
[APPELLANT]
A. Right.
[PCHA COUNSEL FOR APPELLANT]
Q. What were those discussions?
[APPELLANT]
A. ... In my mind, okay, in my mind he put a ... he let me know ... I said, you know, if I plead guilty, you know, like I said what chances, what time will I be getting, right? And he says you have a good chance of getting like two and a half to five years. You know. And he said it’s always possible that you get, you know, a little more. But he said don’t forget, always keep it in mind that the maximum is ten to twenty, but he says two and a half to five looks good.

P.C.H.A. Hearing Transcript 7/13/81, at 13-14. Therefore, because the record supports the hearing court’s determination that trial counsel did not persuade appellant to plead guilty by promising a lesser sentence, we will not disturb that determination on appeal. Commonwealth v. Wallace, supra.

Additionally, we note that a criminal defendant who elects to plead guilty has a duty to answer questions truthfully. Commonwealth v. Brown, 242 Pa.Super. 240, 247, 363 A.2d 1249, 1253 (1976). In the instant case, an extensive colloquy was conducted in which the sentencing judge clearly explained the possible severity of the sentences which the defendant could receive. We cannot permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the promises of counsel. Appellant hoped and possibly expected to receive concurrent sentences of only two to five years, but, as has often been stated, disappointed expectations alone do not vitiate guilty pleas. Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973); Commonwealth v. Brown, supra.

Accordingly, we affirm the holding of the court below.

      . Act of January 25, 1966, P.L. (1965) 1580, § 1; 19 P.S. §§ 1180-1 et seq.

        . Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 3925.

      . Id.; § 903.

      . Id.; § 3701.

      . Id.; § 908.

      . Id.; § 903.

      . Id.; § 2702.

      . We are not asked herein to review the granting of appellant’s right to file nunc pro tunc a petition for allowance of appeal to the Supreme Court.


author: JOHNSON, Judge: SPAETH, Judge,

text:
    464 A.2d 1368
    K.L.H. v. G.D.H., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1983.
    Filed Aug. 26, 1983.

      William G. Schwab, Lehighton, for appellant.
    John F. Gibbons, Lehighton, for appellee.
    Before SPAETH, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

This appeal arises from the trial court’s award of custody of Brian and Darla H. to their mother K.L.H., pursuant to her Petition for Habeas Corpus. Appellant G.D.H., the natural father, has appealed. We affirm the order of the trial court.

The parties were married in January of 1964. Four children were born to this marriage: Paula, James, Brian and Darla. The parties separated in March of 1976, with K.L.H. moving out of the family residence in Jim Thorpe, Pennsylvania and relocating to Dover, Delaware with Paula, Brian and Darla. James remained with his father. The parties were divorced in 1979, but no formal custody agreement or order was made. This custodial arrangement continued until the summer of 1981.

On June 13, 1981, Darla and Brian arrived for a two-week vacation with their father. In the course of the visit, the father determined from conversations with the children that they were being neglected and abused by their mother and her paramour, John Murphy, with whom she lived. The children told their father that they did not wish to return to their mother’s home, and in fact refused to accompany her back to Delaware. They remained at their father’s home in Jim Thorpe, where he lives with his wife, Debra, their infant son, Gregory, and his son born of his marriage to K.L.H., James.

K.L.H. filed a Petition for Writ of Habeas Corpus on July 8, 1981. The court entered an interim custody order on August 5, 1981, giving custody to the mother. On August 7, the father filed a Petition for Plenary Jurisdiction to the Supreme Court of Pennsylvania, alleging that local rules of court which permitted an interim custody order to be issued were, inter alia, unconstitutional. The father also filed a Petition for Supersedeas to the trial court on August 10, which was denied. On August 20, 1981, the trial court confirmed the parties’ stipulation permitting the father to take custody of the children and allowing visitation to the mother pending the final outcome of the mother’s Habeas Corpus petition. After full and comprehensive hearings on August 28 and September 9, 1981, custody of both children was awarded to K.L.H., with visitation to G.D.H.

Appellant G.D.H. has raised two issues on appeal: (1) whether the local rules of court, permitting the trial court to issue an interim custody order prior to a full hearing, violate the provisions of 42 Pa.C.S.A. § 5345, and whether said local rules are unconstitutional and contrary to the best interests of the children, and (2) whether the trial court erred in determining the best interests of the children by failing to fully consider the stability, home environment, religious training and household members of the respective parental homes, to give adequate consideration to the children’s preferences, and to obtain independent testimony concerning the respective living environments.

We need not address the first issue raised by appellant, as the stipulation entered on August 20, 1981, giving appellant interim custody of the children, rendered this issue moot. See Commonwealth ex rel. Watson v. Montone, 227 Pa.Super. 541, 323 A.2d 763 (1974) (existence of actual controversy is essential to appellate jurisdiction and if event occurs rendering it impossible for appellate court to grant any relief, issue is moot). As appellant received the relief he desired, namely interim custody of the children, there no longer exists an actual controversy.

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

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

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

The trial court, in its well-reasoned opinion, initially determined that the children’s allegations of physical abuse by their mother and her paramour were unsupported. The court gave careful scrutiny to the issue and properly weighed the testimony of a clinical psychologist who had interviewed the children and their parents, as well as the other members in the parents’ household. The court also interviewed the children in chambers on this matter. We agree that the record fails to support appellant’s allegations of physical abuse of the children by their mother and her paramour.

On further evaluation, the trial court found both households adequate to meet the children’s needs. Both were financially able to provide for their physical requirements. However, the court determined that the households had markedly different approaches to life and child rearing. The trial court found K.L.H.’s household to be structured around definite rules and regulations, with discipline meted out as necessary. Emphasis in the mother’s home is placed on education and participation by the children in wholesome activities.

The court found the father’s household less rigid and more free-spirited in its approach to child rearing and more liberal in imposing rules and regulations on the children.

As to spiritual development, neither parent has close ties with any church, nor attends church regularly.

The court appears to have placed the greatest emphasis on the continuous custody of the children with K.L.H. for the five years preceding the court’s decision. It was determined that the status quo has been so beneficial to the children that this factor was given controlling weight. This decision was based upon the children’s success in school, their many friends, their participation in numerous organized activities, their opportunity to travel and the fact that they were found to be bright, articulate, and well-adjusted.

The children’s preference to remain with their father was carefully considered by the court, but was determined not to be controlling, as it lacked a convincing basis. The children stated that their preference was based on their greater freedom in their father’s household and that there was more for them to do there.

The court further determined that the children’s reactions, namely their desire to reside with their father and their claims of abuse, were based on their view of the situation in their mother’s household; that K.L.H.’s paramour threatens their mother’s love for them and their mother’s continued efforts to minimize the children’s contacts with their father threatens a loss of familial ties with their father. However, after analyzing the mother’s nonmarital relationship, the court found that it has not adversely affected the well-being of the children. This was based on the permanence of the relationship, John Murphy’s love for both K.L.H. and the children and his position in the household as a strong father figure. The court therefore determined that the children should not be uprooted, as such uprooting would be detrimental to them.

Although not condoning the mother’s efforts to conceal these children from their father, the court held that the children would be best served by living in their mother’s household. The court also noted that appellant’s wife would not have the time and the energy to closely monitor these children and, at the same time, care for her own infant child. Therefore, the court awarded custody to K.L.H. and liberal visitation to G.D.H.

Initially, appellant argues that the trial court erred in basing its decision on the status quo and family dynamics. In support of his argument, appellant cites certain testimony which tended to undermine K.L.H.’s proof of her household’s stability. We note initially that appellant’s arguments appear to be based in part on questions of credibility. The law is clear that in custody cases, we must defer to the court’s findings of fact. Commonwealth ex rel. Newcomer v. King, supra.

We note that the continuous residence of children with one parent may be controlling in a custody dispute. Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981). While it is true that the fact that a child has been away from a parent for a long period of time will not by itself defeat that parent’s right to custody, Pamela J.K v. Roger D.J., 277 Pa.Super. 579, 419 A.2d 1301 (1980), our independent review of the record reveals no error by the trial court in its determination that the best interests of these children will be served by maintaining custody with their mother.

Appellant also raises the non-marital relationship of K.L.H. and John Murphy and alleges that it is detrimental to the children. The only relevance a non-marital relationship has in a custody dispute is its effect on the children; if evidence shows that the parent’s conduct does not adversely affect the children, then the best interests of the children may dictate that custody be given to that parent. In re Donna W., 284 Pa.Super. 338, 425 A.2d 1132 (1981). The trial court determined that this relationship was not harmful to the children and our review reveals the same result.

The trial court also determined that the uprooting of the children from the stability of custody with their mother would have a detrimental effect. The court based its decision on the more structured and disciplined household of the mother. The evidence indicates that the children desire to live with their father in part because of the greater freedom afforded them in his custody. We find adequate support in the record for the trial court’s conclusion that the mother’s household was more suitable for the proper development of the children.

Appellant next argues that the preferences of both children to live with their father was not given appropriate weight by the trial court. However, the court carefully considered the preferences of the children, but ultimately determined that their preferences were not controlling for lack of a convincing basis. The law is clear that the expression by a child of a preference, though a factor to be considered, is not controlling. Commonwealth ex rel. Holschuh v. Holland-Moritz, supra. However, the weight accorded such preferences is to be determined by the trial court. Commonwealth ex rel. Grimes v. Grimes, 281 Pa.Super. 484, 422 A.2d 572 (1980). Our review confirms the trial court’s determination that the children’s preferences lacked a sufficient basis to be accorded controlling weight.

Appellant next argues that the court’s determination that both home environments were adequate was based in part on an ex parte report of the Delaware Family Court, entered in the record over Appellant’s objection. Appellant claims that reliance on this report was impermissible and violated his due process rights. In child custody proceedings, it is error to admit reports without affording the parties the opportunity to cross-examine the preparer as to its contents. Sandra L.H. v. Joseph M.H., 298 Pa.Super. 409, 444 A.2d 1241 (1982). However, no error occurred in the instant case, as the trial court stated on the record that it would consider the report only insofar as it described the mother’s physical household. Appellant specifically did not object to that portion of the report. Also, the court stated that it would accept, as factual, those parts of the report that had already been testified to by witnesses. We find no error by the trial court in using this procedure. See Sandra L.H. v. Joseph M.H., supra.

Appellant also argues that the trial court incorrectly weighed the evidence concerning the children’s caretakers. The law is clear that the fact that a parent must work may not deprive that parent of custody if suitable arrangements are made for the children’s care in his or her absence. Jon M.W. v. Brenda K., 279 Pa.Super. 50, 420 A.2d 738 (1980). Upon a review of the evidence, we find that suitable arrangements exist in both households. Appellant’s current spouse stays at home with their infant son. Although both adults in the mother’s household work, we find no difficulty with the mother’s current arrangement, as the children are old enough to care for themselves during the brief periods of time when no adults are available, i.e., after school. We therefore find no error.

We also find no merit in appellant’s argument concerning religion. Religion is an important matter and should be given some consideration, but is not determinative of child custody. Commonwealth ex rel. Ackerman v. Ackerman, 204 Pa.Super. 403, 205 A.2d 49 (1964). Neither parent actively participates in any form of organized religion, although the evidence indicates that appellant’s present wife is active and attends church. However, the evidence also indicates that both households concern themselves with some form of home teaching concerning religion and morality. We find neither party’s evidence of religious training, or the lack of it, to be controlling in this case.

In all, we find upon an independent review of the record, that adequate evidence was presented to justify an award of custody to the mother in the instant case. Numerous witnesses testified, including a clinical psychologist who had interviewed both parties and the children, a caseworker for the Carbon County Office of Children and Youth Services, friends of the parties as well as both the children and the parties themselves. Various reports and recommendations were also made a part of the record.

Order affirmed.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge,

dissenting:

This case should be remanded for findings of fact.

I agree with the majority that in custody cases our scope of review is very broad. While we must defer to those of the lower court’s findings of fact that are supported by the record, we are not bound either by the lower court’s factual inferences or by its interpretation of the law. In re: Desi ree B., 304 Pa.Super. 461, 450 A.2d 1003 (1982); In re: Custody of Temos, 304 Pa.Super. 82, 450 A.2d 111 (1982). Where the record contains conflicting evidence relevant to those facts that bear on the best interests of the child, the lower court must enter findings as to these facts, for without such findings, it is impossible for us to fulfill our responsibility of determining whether the award of custody entered by the lower court indeed will advance the best interests of the child. For example, in Kimmey v. Kimmey, 269 Pa.Super. 346, 409 A.2d 1178 (1979), the lower court awarded custody of two minor children to their mother, despite the testimony of five witnesses that the mother failed to care for or supervise her children and that “she never cleaned her house, her yard, her children, or their clothes [and] that she was not affectionate with the children, and had had several overnight visitors.” 269 Pa.Super. at 359, 409 A.2d at 1184. The mother disputed this testimony. The lower court did not resolve this conflict in the testimony by making findings as to whether the incidents described by the five witnesses had in fact occurred. Because such findings were critical to a determination of whether the court’s award of custody to the mother would advance the best interests of the child, we remanded the case with instructions that the lower court enter findings as to whether the disputed incidents had in fact occurred.

This case is very similar to Kimmey. Here, Brian Hydro testified as follows:

MR. SCHWAB: Brian, we’ve been through this before. I just want to cover some things we talked about in the past. You mentioned, when the Judge was questioning you, that you got hit by John. John is your mother’s boyfriend?
BRIAN HYDRO: Yeah.
MR. SCHWAB: How long has he been living with you?
BRIAN HYDRO: —around three years.
MR. SCHWAB: When you say you’ve been hit a lot, where have you been hit?
BRIAN HYDRO: He hit me on my arms and he grabbed me by my neck the one time.
MR. SCHWAB: Did you have any bruises, or anything?
BRIAN HYDRO: It was red for around a week.
MR. SCHWAB: When did this occur?
BRIAN HYDRO: —around five months ago.
MR. SCHWAB: That would have been around March?
BRIAN HYDRO: Yeah.
MR. SCHWAB: What did you do to deserve getting hit in the arms or the neck?
BRIAN HYDRO: Nothing. I was just cleaning up some games and I was going pretty slow because I was tired, and John grabbed me—and he threw me.
MR. SCHWAB: Was this usual that he would hit you or was it just once in a while?
BRIAN HYDRO: —when he’d get mad, he always did that.
MR. SCHWAB: How often did he get mad at you?
BRIAN HYDRO: —all the time.
MR. SCHWAB: Are we talking about once a week, once a month?
BRIAN HYDRO: Once a week he always gets made at us.

N.T. 64-66. John Murphy denied that the incident described by Brian had occurred. N.T. 271. Although there is some ambiguity in its opinion, I am unable to discern a finding of fact by the lower court as to whether the incident in fact occurred.

The lower court’s opinion suggests that the reason for its failure to resolve the conflict between Brian’s and John’s testimony was its view that the incident described by Brian did not constitute physical abuse, so that even if it did occur, it would not weigh against an award of custody to the mother: “Neither child indicated any abusive treatment by the mother or her live-in boyfriend, John Murphy. At worst, they stated that there was some corporal punishment inflicted on occasion; but certainly nothing which could be considered physically abusive.” Slip op. at 4. I cannot agree that grabbing a child around the neck, throwing him, and inflicting red marks that last for a week did not constitute physical abuse. To the contrary, we have given comparable incidents great weight in determining whether to permit a natural mother to retain custody of her child. See In re: Davis, 237 Pa.Super. 516, 518, 352 A.2d 78, 79 (1975) (Mother’s petition to obtain custody of her child denied where court found, inter alia, that her paramour “slapped the child often and on one occasion threw her up against the wall,” made her eat on the floor, and “struck her in her ear with his fist .... ”).

Because the incident described by Brian did constitute physical abuse, the question whether it in fact occurred is critical to a determination of whether an award of custody to the mother will advance the best interests of the children. If the lower court believed Brian’s testimony, it should have accorded the incident great weight in determining whether to require the children to remain in their mother’s custody. In addition, rather than according the children’s preference “no weight,” slip op. at 8, the court should have weighed their strong preference to remain with their father in his favor in light, first, of the fact that the desire to avoid physical abuse is certainly a legitimate reason for preferring to live with one parent instead of the other, see Shoup v. Shoup, 257 Pa.Super. 263, 390 A.2d 814 (1978), and second, of the court’s express finding that Brian and Darla, who were then 13 and 11, respectively, were “mature and intelligent.” Slip op. at 7. On the other hand, if the lower court did not believe Brian’s testimony, it quite properly refused to accord the incident any weight in analyzing the children’s best interests.

In the absence of a finding by the lower court as to whether the incident described by Brian in fact occurred, we cannot fulfill our responsibility of determining whether the lower court’s award of custody in favor of the mother will advance the children’s best interests. Accordingly, the case should be remanded for a determination of whether the incident in fact occurred. The parties should be permitted to introduce additional evidence relevant to the current status of the children. The court should file a comprehensive updated opinion in support of its award.

      . Custody of Paula and James was not disputed.

        . We recognize that the issue of the proper scope of review applied in custody cases is presently before this court en banc in the case of In re Donna Williams, 674 Pittsburgh, 1981, argued May 10, 1983. However, the exercise of a different scope of review in this case would not affect the result.

      . Brian H. was thirteen and Darla H. eleven years old at the time of the hearings.

      . See footnote 3.

      . If there is no conflict in the testimony, a remand for findings of fact is unnecessary. See Tomlinson v. Tomlinson, 248 Pa.Super. 196, 204, 374 A.2d 1386, 1390 (1977).

      . This conclusion would follow even if an abuse of discretion standard of review were applicable in custody matters, for an inference from Brian’s testimony that no physical abuse had occurred would be “manifestly unreasonable.” Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 93, 432 A.2d 1066, 1067 (1981) (quoting Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934)).

      . A remand would be necessary even if an abuse of discretion standard of review were applicable, for we cannot determine whether the lower court properly exercised its discretion in the absence of a finding of fact on this critical issue. Cf. Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982) (In absence of findings of fact, analysis of those facts in light of the factors enumerated in the Divorce Code, and statement of reasons for order distributing parties’ marital property and awarding ór denying permanent alimony, reviewing court cannot determine whether lower court properly exercised its discretion).


author: POPOVICH, Judge: ROWLEY, Judge,

text:
    464 A.2d 1376
    COMMONWEALTH of Pennsylvania v. Donald Scott ALEXANDER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 27, 1983.
    Filed Aug. 26, 1983.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence for Rape (18 Pa.C.S.A. § 3121(1)) and Criminal Conspiracy (18 Pa.C. S.A. § 903(a)(1)) entered by the Court of Common Pleas of Allegheny County.

On appeal, appellant, Donald Scott Alexander, asserts that: 1) the Commonwealth failed to exercise “due diligence” in bringing him to trial within the 180-day period mandated by Pa.R.Crim.P. 1100; and 2) the evidence was insufficient to support his conviction for Criminal Conspiracy. We are constrained to agree with the first point proffered by the appellant; accordingly, we reverse the judgment of sentence.

Because of the result we reach in the case at bar, we need only concern ourselves with the Rule 1100 issue. The facts in regard thereto consist of the following: A complaint was filed against the appellant on March 21, 1979. Shortly thereafter, the officers in charge of locating the accused spoke to him by phone and were assured that he intended to turn himself in, but he did not do so. As a result, on April 17, 1979, the police went before a magistrate to establish that appellant could not be found despite their diligent search. Also, appellant’s vital facts were placed with the National Crime Information Center (N.C.I.C.) by Allegheny County authorities. This was succeeded by the court granting the Commonwealth’s Pa.R.Crim.P. 231 petition on June 18, 1979, i.e., the filing of an Information without the requirement of a preliminary hearing.

Sergeant Warren Broz, of the Pittsburgh police, testified that on January 16, 1980 he received a call that appellant was incarcerated in New Jersey. This information, in turn, was relayed to the assistant district attorney (Michael F. Dalfonso, Jr.) in charge of all matters involving extradition, detainers and writs of habeas corpus for the District Attorney’s Office of Allegheny County on or about January 21, 1980. (N.T. 1/14/81 at 12) This caused the assistant district attorney to phone New Jersey authorities, who told him that appellant had charges pending against him in that State. Thereafter, on January 23, 1980, the assistant district attorney secured and sent a bench warrant for appellant’s arrest.

On March 20, 1980, the assistant district attorney received a letter from the Deputy Attorney General of New Jersey telling him appellant “had been sentenced.” (N.T. 1/14/81 at 29) A certified copy of appellant’s conviction was enclosed and revealed that he had been sentenced on February 27, 1980. This prompted Assistant District Attorney Dalfonso, on March 27, 1980, to write to the State Correctional Institution in Yardville, New Jersey requesting temporary custody of the appellant pursuant to the Agreement on Detainers Act. (Detainers Act) Enclosed in the mail was “form five,” which was a “[r]equest for temporary custody [of the appellant] for purposes of trial on charges of rape.” (N.T. 1/14/81 at 14) The correctional institution and appellant each received a “form five.” (N.T. 1/14/81 at 15) Normally, as testified to by the assistant district attorney and not contested by the defense, “there is a 30-day waiting period from the time the defendant is served a copy of form five[,]” (N.T. 1/14/81 at 14-15), to afford the accused the opportunity to object to the receiving state’s (in this case Pennsylvania’s) petition for custody with the sending state’s (in this case New Jersey’s) Governor. See 42 Pa.C.S.A. § 9101 (Art. IV(a)). The assistant district attorney went on to state that it was customary to tack on 10 days to the original 30-day period, given the facts at bar, to allow for the time consumed in the pick up and delivery of the mail. (N.T. 1/14/81 at 28-29) The reason for adhering to such a time stricture (“rule of thumb” time table), according to the witness, is to avoid unnecessary communication with the sending state’s officials prior to the expiration of the statutorily created appeal period. Thus, if everything had' gone properly, the assistant district attorney opined that the next date he should have heard from New Jersey “would [have been] ... sometime early [in] May” of 1980. (N.T. 1/14/81 at 15)

However, the assistant district attorney did not act until July 10, 1980, at which time" he phoned Yardville State Correctional Institution concerning the accused and was advised that he “had been transferred to Rahway State Correctional Institution in New Jersey ....” (N.T. 1/14/81 at 17, 35 and 36) This caused the assistant district attorney to send a letter to a Ms. Fruscello on July 10, 1980, who was in charge of “classification” at Rahway State Prison, requesting temporary custody of the appellant by means of “a new form five.” (N.T. 1/14/81 at 18) The next contact the assistant district attorney had with Rahway was when he called Ms. Fruscello on September 16, 1980. The assistant district attorney was informed that the original “form five” sent to Yardville “had been misplaced in the transfer” of the appellant to Rahway. (N.T. 1/14/81 at 35-36) As for the reason why the officials at Rahway did not act on the “new form five,” Ms. Fruscello advised the assistant district attorney that “she was on vacation for the [previous] three weeks and no one did her work. She assured [him] she would get on this matter immediately. [However, t]he next communication [the assistant district attorney] received was a telephone call from Detective Scott from [a New Jersey] County Prosecutor’s Office on October 23, 1980. He advised [the assistant district attorney] that the defendant was on the street. He knew where he was. He wanted to know if [the assistant district attorney] still wanted him.” (N.T. 1/14/81 at 19)

In response to Detective Scott’s call, the assistant district attorney sent a teletype via N.C.I.C. on October 23, 1980 informing Scott that appellant was still wanted and he would extradite if the detective apprehended him. After the assistant district attorney was notified by Detective Scott that appellant was in custody and had waived extradition, Dalfonso prepared an order of court the next day, October 31, 1980, directing the Sheriff’s Office of Allegheny County to return appellant to this Commonwealth. On November 6, 1980, appellant was finally housed in the Allegheny County Jail. At this point, it requires mentioning that all that has been discussed relates directly to appellant’s first Rule 1100 hearing held on January 14, 1981. By Opinion and Order dated February 12, 1981, the presiding judge “held that the defendant was unavailable for trial between March 21, 1979, and November 6, 1980. Therefore, defendant’s trial date [was set for] May 4, 1981.” (Lower Court Opinion at 5) Thereafter, on April 30, 1981, appellant’s counsel filed a “Motion to Dismiss” (Motion) and a second Rule 1100 hearing was held to determine if “the defense ha[d] new evidence.”

At the hearing, the only one of two witnesses (the other being the appellant), David R. Flick, supervisor of the Pennsylvania Board of Probation and Parole (Board), took the stand and remarked that the Board declared appellant delinquent on April 17, 1979 for not reporting to his parole officer. Consequently, the Board utilized N.C.I.C. to alert law enforcement officials that appellant was wanted. By transcription over the N.C.I.C. computer dated September 29, 1979, the Board was informed that appellant was “apprehended by police [in] Little Falls, New Jersey[.]” (N.T. 4/30/81 at 9) On October 2, 1979, the Board transmitted a detainer on Donald Alexander to New Jersey by means of N.C.I.C.

On April 21, 1980, New Jersey officials sent to Mr. Flick’s office in Harrisburg, which deals directly with matters concerning out-of-state clients of the Board, a report disclosing that appellant had been arrested (September 28, 1979), pleaded guilty (burglary), sentenced (4 years) and was in custody (county jail). However, as to this transmission, Mr. Flick “couldn’t answer ... for sure” that the Pittsburgh police had been similarly advised. (N.T. 4/30/81 at 9)

This scenario continues with the Board receiving a letter dated June 13, 1980 from Rahway State Prison advising it that a warrant for outstanding charges in Allegheny County against the appellant was on file with the institution. The next, and last, communication was dated November 21, 1980, and was in response to the Board’s inquiry about the appellant as of November 5th. The personnel at Rahway informed the Board that as of October 28, 1980, appellant was released to his Pennsylvania detainer and was picked up by Middlesex County Court, New Jersey. (N.T. 4/30/81 at 5) The events testified to after the last communique were consistent with those at the first Rule 1100 hearing. Subsequent thereto, by Order dated May 1, 1981, the court denied appellant’s Motion.

The aftermath of the preceding Order was appellant’s trial on May 4, 1981, resulting in conviction, followed by the denial of post-trial motions and the imposition of sentence. A motion for reconsideration of sentence was denied, but no appeal was taken therefrom. Rather, appellant’s appellate rights were reinstated nunc pro tunc after the trial court reviewed appellant’s Post-Conviction Hearing Act petition (19 P.S. § 1180-1 et seq.) and found he had not waived his appellate rights. This appeal followed.

For ease of discussion, it is appropriate to identify the period of time with which this Court will not be concerned with in addressing the Rule 1100 claim. To-wit, the period after appellant’s return to the Commonwealth on November 6, 1980 is not questioned. (See Appellant’s Brief at 11-20)

The issue on appeal is framed by appellant’s counsel as follows:

Donald Scott Alexander ... was improperly tried ... beyond the mandatory one hundred & eighty (180) day period of Rule 1100. The fact that Mr. Alexander was incarcerated in another jurisdiction during this time did not affect the Commonwealth’s duty to exercise due diligence to secure either the return of Mr. Alexander or a proper extension of time. The Commonwealth failed in its duty, and, therefore, Mr. Alexander’s conviction may not stand. (Appellant’s Brief at 11)

To start with, Pa.R.Crim.P. 1100(a)(2) provides that: “[t]rial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.” As mentioned previously, a criminal complaint was filed against appellant on March 21, 1979. Thus, the initial run date was September 17, 1979. See Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982); 1 Pa.C.S.A. § 1908. Trial occurred on May 4. 1981. Therefore, unless 414 days (the time span between the issuance of the complaint and appellant’s return to the Commonwealth) are excluded from the tabulation of the run date under Rule 1100(d) or justified by an extension of the run date granted under section (c) of the Rule, appellant’s convictions must be reversed. Since the Commonwealth filed no petition to extend, we are left with a determination of whether appellant’s absence from the Commonwealth is automatically excludable under Rule 1100(d). Commonwealth v. Long, 258 Pa.Super. 251, 392 A.2d 779 (1978).

As this Court wrote in Commonwealth v. Warman, 260 Pa.Super. 130, 135-136, 393 A.2d 1046, 1049 (1978):

Mere incarceration in another jurisdiction does not make appellant unavailable. Appellant will be considered unavailable only for the period of time during which his presence could not be secured despite due diligence by the Commonwealth. Commonwealth v. Richbourgh, 246 Pa.Super. 300, 369 A.2d 1331 (1977); Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977). “There is no question, therefore, that the duty imposed on the Commonwealth by Rule 1100 to bring a defendant to trial within the prescribed period is not affected by the fact of his incarceration elsewhere ____” Commonwealth v. McCafferty, 242 Pa.Super. 218, 224, 363 A.2d 1239, 1241 (1976).

Additionally, on this subject of whether an accused in the custody of another jurisdiction renders him unavailable for trial, the Comment to Rule 1100(d)(1) reads:

For purposes of subparagraph (d)(1), in addition to any other circumstances precluding the availability of the defendant or his attorney, the defendant should be deemed unavailable for any period of time during which he could not be apprehended because his whereabouts were unknown and could not be determined by due diligence; or during which he contested extradition, or a responding jurisdiction delayed or refused to grant extradition; or during which the defendant was physically or mentally incompetent to proceed; or during which the defendant was absent under compulsory process requiring his appearance elsewhere in connection with other judicial proceedings. (Emphasis added)

See Commonwealth v. Porter, 251 Pa.Super. 346, 380 A.2d 812 (1977) (Both our Supreme Court and this Court previously have employed the Comments in interpreting the Rules).

Having set forth a framework within which to evaluate the Rule 1100 issue, we can now turn to the first of appellant’s arguments, which questions the logic of the Commonwealth failing to proceed under the Extradition Act after it learned of his whereabouts on January 22, 1980.

Assistant District Attorney Dalfonso testified that once appellant was located, he forwarded a bench, warrant to New Jersey on January 23, 1980. It was Dalfonso’s belief that he “couldn’t proceed under extradition because of local charges pending. [He] couldn’t file ... form five, [a] request for temporary custody under [the] agreement on detainers, because [appellant] wasn’t as yet a sentenced prisoner.” (N.T. 1/14/81 at 13) In other words, Dalfonso was waiting to hear from New Jersey as to when appellant had been tried and sentenced “so [he] could determine which avenue to pursue.” Ibid.

As to the latter point proffered by the Commonwealth’s witness, we are in accord that the Detainers Act was an inappropriate mechanism, at least at that stage of the case, to seek appellant’s return since it applies only “[w]hen[ ] a person has entered upon a term of imprisonment in a penal or correctional institution[.]” 42 Pa.C.S.A. § 9101 (Art. 111(a)). Accord Commonwealth v. Hude, 483 Pa. 489, 397 A.2d 772 (1979); Commonwealth v. Heath, 288 Pa.Super. 119, 431 A.2d 317 (1981). However, we do not view the proposition contained in the former point in like fashion. The reason is evident from a perusal of subsection (a) of Section 9126 of the Extradition Act, which reads:

(a) Extradition from another state.—When it is desired to have returned to this Commonwealth a person charged in this Commonwealth with a crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the Governor of this Commonwealth may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this Commonwealth as soon as the prosecution in this Commonwealth is terminated. (Emphasis added) 42 Pa.C.S.A. § 9126(a).

Although we acknowledge that the request for extradition under subsection (a) of Section 9126 is directory and not mandatory, this fact does not discount the availability of the Extradition Act as a means by which appellant’s return could have been initiated. Extradition was the appropriate procedure for commencing securement of appellant’s return to Pennsylvania prior to his conviction and sentencing in New Jersey. See Wallace v. Hewitt, 428 F.Supp. 39, 41 n. 6 (M.D.Pa.1976); Commonwealth v. Heath, supra, 288 Pa.Super. at 127-129, 431 A.2d at 321; Commonwealth ex rel. Coleman v. Cuyler, 261 Pa.Super. 274, 396 A.2d 394 (1978). The extradition proceedings could have been started on January 22, 1980, while appellant was incarcerated awaiting trial in the asylum state. See Commonwealth v. Heath, supra. The Commonwealth did not do so and attempts to excuse its (in)actions (e.g., filing of a bench warrant instead and waiting until March 20, 1980 to be notified by the Deputy Attorney General of New Jersey that appellant had been sentenced) by the following remarks:

Because the appellant was not yet sentenced on the New Jersey charges, the District Attorney’s Office, knowing that to proceed with extradition would be futile due to time constraints, awaited notification of sentencing. (Commonwealth’s Brief at 4)

We regret that the Commonwealth neglected to give us the benefit of its insight as to what “time constraints” made extradition futile. Nonetheless, from our own assiduous review of the record and the law, we are able to discern that the only “time constraints” the Commonwealth could be referring to are those associated with the preparation (42 Pa.C.S.A. § 9144) and filing of the extradition documents with the necessary state officials. Cf. Commonwealth v. Heath, supra, 288 Pa.Super. at 126, 431 A.2d at 320 (“District Attorney of Blair County testified that he commenced proceedings under the Extradition Act by preparing the necessary documents within one or two days after the filing of the criminal complaint on March 20, 1976. The extradition documents were forwarded to the Governor of Pennsylvania on April 2, 1976. Their receipt was acknowledged in a letter addressed to the district attorney from the Secretary of the Commonwealth of Pennsylvania dated April 8, 1976. The district attorney further testified that he was notified, by letter dated April 23, 1976, that the extradition documents had been received by authorities in Virginia.”). Thus, the Commonwealth’s argument would seem to be that if extradition had been initiated instead of a bench warrant, by the time the appropriate papers would have been received by New Jersey (some 30 to 40 days after January 22, 1980), appellant would have already been sentenced (February 27, 1980). As a result, the Extradition Act would have been ineffectual. We find that the Commonwealth’s “time constraints” argument misses the mark, for it deals in hindsight. This type of abstract (“if-then”) thinking was responded to quite aptly by this Court in Commonwealth v. Williams, 284 Pa.Super. 125, 425 A.2d 451 (1981), wherein we dealt with the contention that the Commonwealth did not use reasonable efforts in applying for custody of an accused under the Detainers Act in the following manner:

[T]he test is not a venture into hindsight reasoning as to whether, if certain individuals had been contacted, or other things done, an arrest would probably have been made. The matters of availability and due diligence must be judged by what was done by the authorities rather than [by] what was not done. The standard of due diligence demands only reasonable efforts. (Citation omitted) (Emphasis in original)

Id., 284 Pa.Superior Ct. at 132, 425 A.2d at 455. We think it abundantly clear that the Commonwealth did not use such reasonable efforts.

We wish to make one other remark to the Commonwealth’s assertion that the Extradition Act imposed “time constraints” that impeded the return of the out-of-state fugitive, and, consequently, warranted the delay in producing him for trial. “It is true that if the Commonwealth had followed the proper procedures for the [Extradition Act] and if appellant or the [New Jersey] authorities had contested his transfer, the time so consumed would have been excluded from the period of Rule 1100. Commonwealth v. McCafferty, 242 Pa.Super. 218, 220, 363 A.2d 1239, 1240 (1976). Here, however, the Commonwealth did not begin the proper procedures [under the Extradition Act] ... and neither appellant nor the [New Jersey] authorities contested the Commonwealth’s action. The Commonwealth, then, may not use appellant’s incarceration in [New Jersey] as an excuse for failing to comply with Rule 1100. Commonwealth v. Hamilton, 449 Pa. 297, 300, 297 A.2d 127, 128-129 (1972); Commonwealth v. McCafferty, supra.Commonwealth v. Porter, supra, 251 Pa.Super. at 351, 380 A.2d at 815. Stated otherwise, had the appellant or New Jersey objected to extradition, the time expended in regard thereto would have been excluded from the period of Rule 1100. See Commonwealth v. Bass, 260 Pa.Super. 62, 393 A.2d 1012 (1978). Obviously, because the Commonwealth did not file such a request, the transfer could not be contested. Ergo, the period (of sixty-five days) between January 22, 1980 (when the Commonwealth became aware of appellant’s whereabouts) and March 27, 1980 (when the Commonwealth submitted a request for the appellant under the Detainers Act with New Jersey) are not excludable.

We could at this juncture dispense with any further discussion of the Rule 1100 issue since our finding precludes the Commonwealth from complying with the 180-day requirement. Notwithstanding this fact, we deem it appropriate, for the purpose of dispelling any doubts one may still harbor as to our ruling, to examine the Commonwealth’s other efforts in seeking to bring appellant back to Pennsylvania.

As recited earlier, Assistant District Attorney Dalfonso took action on March 27, 1980, in the form of a letter to prison officials at Yardville, New Jersey, seeking the return of the appellant under the Detainers Act. Dalfonso testified that the Detainers Act provides a prisoner with the opportunity to appeal his transfer to the Governor of the asylum state. See 42 Pa.C.S.A. § 9101 (Art. IV(a)). Furthermore, Dalfonso stated that it was acceptable practice to add 10 days on to the 30-day appeal period to allow for the time expended by the postal service in picking up and delivering the documents. Consequently, Dalfonso opined, if all had gone just as outlined, the date on which he should have been contacted by New Jersey would have been “sometime early May” of 1980. (N.T. 1/14/81 at 15)

Given Attorney Dalfonso’s admitted familiarity with the time sequence attendant to the securement of an accused under the Detainers Act, we find his failure to act after the passage of May, June and the first part of July of 1980 without any information from New Jersey difficult to understand, and certainly not consonant with Rule 1100’s “due diligence” standard. See, e.g., Commonwealth v. McNeal, 261 Pa.Super. 332, 396 A.2d 424 (1978) (7 months of inaction); Commonwealth v. Kovacs, 250 Pa.Super. 66, 378 A.2d 455 (1977) (8 months of inaction). In fact, Attorney Dalfonso did nothing until July 10, 1980. Then, he called Yardville State Correctional Institution and was told appellant had been transferred to Rahway.

Before proceeding, it must be mentioned that no evidence was presented to indicate that the Commonwealth’s inaction was predicated upon assurances from New Jersey penal officials that the District Attorney’s Office of Allegheny County would receive prompt notification upon appellant’s becoming available. If such were the case, the result would be different. See, e.g., Commonwealth v. Johnson, 305 Pa.Super. 310, 451 A.2d 546 (1982); Commonwealth v. Emmett, 274 Pa.Super. 23, 417 A.2d 1232 (1979); Commonwealth v. Warman, supra.

In light of the aforesaid, even if we utilize Dalfonso’s “rule of thumb” in calculating the reasonable period of time one should expect to wait before receiving a response from an asylum state, if the Detainers Act is the vehicle by which an out-of-state defendant is being sought, the lapse of time is not insignificant. That is, the span of time between when Attorney Dalfonso “should have” received a response from New Jersey prison officials to his March 27, 1980 letter (i.e., “sometime early May” of 1980) and when he, in fact, did act after receiving no such response (by July 10, 1980) consists of some 60 days that are unaccountable for in terms of the “due diligence” standard.

The final Rule 1100 time period we will discuss runs from July 10, 1980 to September 16, 1980.

On July 10, 1980, after being informed of appellant’s incarceration in Rahway by Yardville officials, Attorney Dalfonso wrote to a Ms. Fruscello at Rahway asking for custody of the appellant. The next conversation Attorney Dalfonso had with Rahway was when he called on September 16, 1980 and was told that the original request (“form five”) sent to Yardville had been misplaced in appellant’s move to Rahway. What transpired thereafter is recounted supra and need not be reiterated to address the issue before us.

In dealing with the period in question, the previous analysis is equally applicable in exposing the Commonwealth’s shortcomings. For instance, even allowing for the maximum 40-day grace period referred to by Attorney Dalfonso as an accepted period of time to wait before the “requesting state” need again contact the “sending state” under the Detainers Act, there is still a total of 26 days (66 days between July 10 to September 16, 1980 minus 40) during which no action was taken by the Commonwealth in seeking appellant’s return.

The Commonwealth has failed to show by a preponderance of the evidence that sufficient action was pursued in an attempt to bring the absent defendant back for trial. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977).

We find, therefore, that the Commonwealth’s showing of “due diligence” was woefully insufficient. Without such a showing, we are unable to find appellant “unavailable” under Rule 1100(d), because mere incarceration in another jurisdiction, in itself, does not prove unavailability. See Commonwealth v. Bass, supra.

The judgment of sentence is reversed and appellant is ordered discharged.

ROWLEY, J., files a concurring statement.

ROWLEY, Judge,

concurring:

I reluctantly join in the Court’s decision. This is, however, another prime example of the exaltation of a rule of procedure [Pa.R.Cr.P. 1100] to such a status that it affords an accused far greater benefits than do the underlying Constitutional provisions [U.S. Const., Amend. VI, and Pa. Const., Art. I, § 6] that the procedural rule was designed to implement; all at the expense of innocent victims and to the detriment of the law-abiding citizens of Pennsylvania. However, we, as an intermediate appellate court, have no authority, or right, to amend the Supreme Court’s procedural rules or to overrule the decisions of that Court interpreting and applying its rules. Since those rules and decisions mandate that appellant be discharged because his trial was not commenced for 2572 months after the complaint was' filed, I reluctantly concur in the Court’s order.

      . On cross-examination, Sergeant Broz admitted that Pittsburgh police are “privy” to the data contained in the N.C.I.C. computer. (N.T. 1/14/81 at 8) However, he could not say for sure that they were cognizant of the information relating to appellant’s earlier arrest in September of 1979 in New Jersey.

      . The Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978; 42 Pa.C.S.A. § 9101 et seq. Pennsylvania and New Jersey are signators to the interstate agreement on detainers.

      . After the passage of approximately 30 to 40 days, if appellant had appealed to the Governor of New Jersey from Pennsylvania’s request for temporary custody, the assistant district attorney would have received “forms three and four.” The former deals with "Delivery of Temporary Custody” and the latter concerns a “Certificate of Status." He received neither from the officials at Yardville State Correctional Institution. (N.T. 1/14/81 at 15)

      . Our review of the record, which includes the second Rule 1100 hearing held on April 30, 1981, indicates that appellant plead guilty to burglary in New Jersey, was sentenced to a term of 4 years and paroled on October 28, 1980. (N.T. 1/14/80 at 58 & 65) (N.T. 4/30/81 at 7 & 25) Attorney Dalfonso denied having any knowledge that appellant was placed on parole. (N.T. 1/14/80 at 65) Had he known, "[o]nce [appellant] was paroled on the detainer, [he] would no longer [have] go[ne] on the detainer, but on extradition.” (N.T. 1/14/80 at 59)
      Appellant testified that after his release from Rahway on October 28th, he was transferred to Middlesex County Jail, New Brunswick, New Jersey for an extradition hearing. (N.T. 1/14/80 at 66) On October 30th, the extradition hearing was held and appellant told court officials in New Jersey that he "wanted to go back to Pennsylvania." (N.T. 1/14/80 at 67) (N.T. 4/30/81 at 27) Thereafter, appellant was picked up by Deputy Sheriffs of Allegheny County and transported back to Pennsylvania.
      We find interesting the fact that the records, briefs and opinions reviewed by this Court all indicate that appellant was finally lodged in the Allegheny County Jail on November 6, 1980. However, there is no illumination as to what transpired between appellant's extradition hearing in New Jersey and his return to Pennsylvania on November 6th. Appellant does not question the propriety of this hiatus, thus we need not consider it.

      . Rule 1100(d) provides:
      In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
      (1) the unavailability of the defendant or his attorney;
      (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded;

      . Section (c)' of Rule 1100 provides:
      At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. A copy of such application shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon. Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

      . Act of 1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978; 42 Pa.C.S.A. § 9121 et seq.

      . The figure is calculated by excluding the first day and adding the last. 1 Pa.C.S.A. § 1908. Also, although not dispositive of the case, we note that defense counsel stipulated to the exclusion of that period between the filing of the complaint (March 21, 1979) and the N.E.I. hearing before the district magistrate (April 17, 1979). (N.T. 1/14/81 at 3)


author: HESTER, Judge:

text:
    464 A.2d 1386
    COMMONWEALTH of Pennsylvania v. Leroy EDNEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 12, 1983.
    Filed Aug. 26, 1983.

      Harold Diamond, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, MONTEMURO and POPOVICH, JJ.
   HESTER, Judge:

On August 23, 1979, Officers Dizio, Fellino, Robinson and La Bou of the Philadelphia Police Department were assigned to a special plain-clothes detail on City Line Avenue in the City of Philadelphia. While they were operating an unmarked vehicle in a westerly direction on City Line Avenue, they observed appellant, Leroy Edney, and his co-defendant, Larnell Woods, standing near the entrance of the Acme Supermarket at the intersection of 76th Street and City Line Avenue. Both men glanced furtively and intermittently at each other, inside the store and to the store’s adjacent parking lot. The officers drove their vehicle around the block and parked directly across the avenue from the supermarket.

Shortly thereafter, appellant and his co-defendant entered the store and joined a third unidentified accomplice who apparently had entered the store earlier. Once inside, appellant stood near the front entrance brandishing a revolver and keeping the store employees and customers in check while Woods compelled an employee at gun point to open the check drawer and safe. The three men then ran from the store, to a light-blue, four-door Oldsmobile parked in the adjacent lot. Woods assumed the driver’s position while appellant and the unidentified male took the rear seat. Off-duty Philadelphia detective, Patrick Devlin, observed the criminal activity also; in fact, he was the first to confront the three men as they entered the Oldsmobile.

Forty feet from the Oldsmobile, Devlin ordered the trio to submit. Instead, Woods raised his revolver and both he and Devlin fired at each other simultaneously. Devlin ran for cover as the four plainclothesmen joined to terminate the foray.

Just then, Woods began driving the Oldsmobile from its parking space with appellant in the rear seat and the unidentified male fleeing on foot. A further exchange of gunfire resulted in wounding Woods and forcing the vehicle from his control; it veered from the eastbound lane of City Line Avenue and stopped against a tree.

A Smith & Wesson .357 revolver was recovered from the floor at Wood’s feet, $14,000.00 in cash was scattered through the car and appellant was lying unharmed on the rear floor with a chrome-plated revolver underneath his chest.

As a result of this incident, appellant was charged with robbery, possessing instruments of crime generally, simple assault, aggravated assault, criminal conspiracy and attempted murder. Prosecution of appellant and co-defendant was severed.

Following a lengthy jury trial in the Court of Common Pleas of Philadelphia County, appellant was found guilty of robbery, possessing instruments of crime generally, and criminal conspiracy. He was sentenced to not less than six years nor more than twelve years of imprisonment on the robbery bill, said sentence to run consecutively to a sentence imposed earlier on an unrelated conviction. A two and one-half to five-year sentence on the bill of possessing instruments of crime generally and a five to ten-year sentence on the criminal conspiracy bill were ordered concurrent to the robbery sentence.

Post trial motions for new trial and arrest of judgment were filed and denied. This timely appeal was taken from the judgment of sentence.

Appellant argues first that the trial judge erred in refusing to recuse himself due to his presiding over a trial for unrelated charges against appellant just two weeks prior to trial on the instant charges. Appellant was found guilty of those earlier charges and sentenced to undergo imprisonment by the same judge. The trial judge’s refusal to recuse himself was “particularly damaging”, according to appellant, because it forced him to forego a non-jury trial. He reluctantly proceeded to trial before a jury due to the fact that he was of the opinion that the trial judge was incapable of presiding impartially, having become acquainted at the earlier trial with appellant’s character traits and behavioral norms.

In Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980), the trial judge had presided over a jury trial on charges brought against the defendant three years earlier. Citing Commonwealth v. Conrad, 241 Pa.Super. 324, 361 A.2d 421 (1976), the McQuaid court placed upon the party seeking disqualification the burden of producing evidence of the unquestionable “bias, prejudice or unfairness” of the trial judge. Evidence that the trial judge presided over an earlier trial involving the same defendant is not, in itself, sufficient evidence of prejudice, nor does it switch to the Commonwealth the burden of proving the judge’s incessant impartiality. As in McQuaid, appellant produced no evidence, other than the earlier unrelated proceeding, of bias or prejudice.

As in McQuaid, the proceedings here were conducted before a jury, the ultimate fact-finders of guilt or innocence. Much of the criminal assessment did not lie with the judge, and we detect nothing from the record to indicate that his rulings removed factual issues from the jury or unjustly guided their final determination.

Moreover, assuming appellant would have proceeded to a non-jury trial had the trial judge recused himself, we find no prejudice suffered as a result of his defending himself before a judge and jury. An accused does not have an absolute right to a non-jury trial; his motion to waive a jury trial may confront objections by the prosecution and is subjected to approval by the court. Pa.R.Crim.P. 1101; Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982).

It is appellant’s next contention that the prosecutor made several prejudicial remarks during opening and closing arguments that tainted the adjudication of guilt. First, frequent references were allegedly made to the actions of co-defendant Woods and his absence from the courtroom. This ploy was utilized, according to appellant, for the purpose of imputing guilt to appellant for the criminal acts of Woods; and, secondly, for the purpose of encouraging the jury to infer from Woods’ absence that he had no exonerating testimony to offer on appellant’s behalf. Particularly disturbing to appellant, in apparent support of his contention that the prosecutor led the jury to believe that Woods’ absence indicated appellant’s guilt, was the prosecutor’s comment during opening argument on appellant’s and Woods’ relationship: “From the testimony, the credible testimony, if you find it credible, you will understand the connection and it will not be difficult.”

It is unreasonable to expect, especially during lengthy trials, that all impropriety will result in reversal. Many improprieties are of no consequence. Many remarks by the prosecutor are unwisely uttered; nevertheless, they simply do not warrant the granting of a new trial. Only where such remarks may be reasonably said to deprive the accused of due process of law, is it appropriate to reverse a conviction. Commonwealth v. Garcia, 478 Pa. 406, 387 A.2d 46 (1978); Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973). For example, a prosecutor’s comment that the defendant’s testimony “isn’t worthy of my comment, let alone worthy of your belief,” was deserving of reproach, yet it did not merit a new trial. Commonwealth v. Middleton, 269 Pa.Super. 17, 409 A.2d 41 (1979).

We do not find the remark made by the prosecutor herein nearly as disturbing as that remark made in Middleton. We would be remiss, therefore, in ordering a new trial where one was deemed inappropriate by the Middleton court. Secondly, appellant was charged with criminal conspiracy; therefore, the actions of Woods were significant. Conspiracy necessarily involves an agreement to promote and facilitate a criminal act; 18 Pa.C.S.A. § 903; it also involves holding all conspirators criminally responsible for the acts of one conspirator committed in furtherance of the plan. Commonwealth v. Antico, 146 Pa.Super. 293, 22 A.2d 204 (1941). Our reading of the aforementioned quoted passage convinces us that the prosecutor was not attempting to lead the jury to conclude that Woods’ absence at trial incriminated appellant; that would be a strained interpretation. Rather, we believe that the “connection” was a clear reference to criminal conspiracy and the imputing of guilt to appellant for the actions of Woods. This was relevant and admissible evidence.

Appellant avers that the prosecutor’s handling of two revolvers during closing argument inflamed the passions of the jury, thereby interfering with their objective evaluation of the evidence. The record does not indicate that the prosecutor gestured with the weapons, aimed them at the jury or held them for an unduly long period of time. Furthermore, the jury was frequently instructed to dismiss ail comments, questions and actions by counsel. Many improper actions can be neutralized by the court’s corrective instruction. See Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974); cert. den. and app. dismd., Martinolich v. Pennsylvania, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974); Commonwealth v. Lowery, 440 Pa. 361, 269 A.2d 724 (1970).

Next, appellant argues that certain prejudicial evidence was admitted rendering appropriate the ordering of a new trial. In particular, appellant complains that Officer Dizio’s testimony on direct examination that he was “assigned to a special rape detail” the evening of appellant’s arrest was evidence of violent crimes irrelevant to the instant proceedings and implicating appellant beyond the crimes charged.

A similar argument was raised by the defendant in Commonwealth v. Dalahan, 262 Pa.Super. 615, 396 A.2d 1340 (1979). There, the defendant was convicted of attempted burglary and possessing an instrument of crime; police officers testified that he was arrested while they were on a special burglary assignment. In response to the defendant’s argument that the officers’ testimony led the jury to believe that the defendant must have been guilty of burglary since he was apprehended in the area of the special assignment, the court responded:

“We believe appellant’s argument is specious. If drawn to its logical end, it would require all police officers to testify in plainclothes without reference to their occupation as policemen, since according to appellant’s argument, if one is caught by a policeman, whose job it is to catch wrongdoers, then obviously he must be guilty of some wrongdoing. All people are aware that the function of a policeman is to apprehend suspected wrongdoers. The fact that the policeman is on special duty to apprehend burglars and he arrests an individual who is subsequently charged with burglary, does not create a prejudicial inference with the jury that he is any more guilty than someone who is apprehended by a “regular” police officer. Id., 262 Pa.Superior Ct. at 623, 624, 396 A.2d 1333, 1334 (1979).

We find the testimony here of the special rape assignment less harrowing to appellant’s position than the Dalahan testimony. Appellant was not charged with rape; even without the cautionary instruction given by the trial judge to disregard all references to crimes not charged, we do not believe that any jury could strain its logic to the point of inferring guilt of robbery from evidence of a special rape assignment.

Appellant once again objects to the actions of Woods being used as evidence against him. For those reasons given earlier in rejection of appellant’s objection to such evidence being discussed by the prosecutor in opening argument, we summarily dismiss such argument here.

Lastly, appellant contends that the prosecutor used peremptory challenges to systematically exclude black jurors and thereby deny appellant’s right to be judged by his peers. In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), reh. den., 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442 (1965), our United States Supreme Court considered the constitutionality of using peremptory challenges to exclude blacks from a jury. The Swain court initially noted that peremptory challenges are often exercised upon quickly and perhaps unjustly-formed impressions of a person’s character. Despite such whimsical or prejudicial exclusion of individuals from the jury, it does not amount to a denial of equal protection of the laws. The Swain court refused to use the Constitution as a means to require an inquiry into a prosecutor’s reasons for exercising peremptory challenges. A presumption was established whereby the prosecution’s use of challenges was to obtain an objective and impartial jury to hear a case; the mere proof that all Blacks are excluded in a particular case, which is the extent of appellant’s proof, is not enough to overcome such a presumption. There must be proof that over a lengthy period of time the prosecutor categorically excluded Blacks from juries. See Commonwealth v. Anderson, 302 Pa.Super. 457, 448 A.2d 1131 (1982); Commonwealth v. Futch, 492 Pa. 359, 424 A.2d 1231 (1981).

For these reasons, judgment of sentence is affirmed.