text:
    538 A.2d 930
    COMMONWEALTH of Pennsylvania, Appellee v. Terry L. PERKINS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1988.
    Filed March 7, 1988.

      George Stenhach, Coudersport, for appellant.
    Martha J. Duvall, Assistant District Attorney, Coudersport, for Com., appellee.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence imposed after appellant pleaded guilty to driving under the influence (DUI). Appellant claims that the trial court erred in determining that the Commonwealth proved by a preponderance of the evidence that appellant had a prior DUI conviction in New York equivalent to the Pennsylvania charge of DUI. We agree and remand for a hearing consistent with this opinion.

On January 9, 1987, as a result of a one-car accident that occurred on January 6, 1987, appellant was charged with driving under the influence, 75 Pa.C.S.A. § 3731(a)(1), (4), and reckless driving, 75 P,a.C.S.A. § 3714. On April 3,1987, appellant entered a plea of guilty to the DUI charge. After considering a pre-sentence report that indicated a prior DUI conviction in New York, the trial court sentenced appellant to thirty days to one year imprisonment. A motion to reconsider sentence was subsequently denied and this appeal followed.

Appellant claims that the Commonwealth did not prove by a preponderance of the evidence that appellant had a prior DUI conviction in New York equivalent to the charge of DUI in Pennsylvania such that appellant could be sentenced as a second-time offender. It is well settled that a defendant who is convicted of DUI for a second time must be sentenced to not less than thirty days. 75 Pa.C.S.A. § 3731(e)(1)(h); Commonwealth v. Hess, 348 Pa.Super. 600, 502 A.2d 707 (1985). The Vehicle Code specifies, however, that the individual must have been previously convicted of an offense under Section 3731 or of an equivalent offense in another jurisdiction within the previous seven years. 75 Pa.C.S.A. § 3731(e)(1)(h).

In determining how the Commonwealth may satisfactorily establish an “equivalent offense in another jurisdiction,” we note, preliminarily, that penal statutes are to be strictly construed in favor of the defendant. 1 Pa.C.S.A. § 1928(b)(1). In addition, we acknowledge that statutes which relate to the same class of persons or things shall be construed together, if possible, as one statute. Commonwealth v. Kearns, 365 Pa.Super. 13, 528 A.2d 992 (1987), citing 1 Pa.C.S.A. § 1932(a), (b); Pennsylvania Social Ser vice v. Pennsylvania, 481 Pa. 81, 392 A.2d 256 (1978). Therefore, since we may examine other recidivist statutes in pari materia, 42 Pa.C.S.A. § 9714 guides us in our analysis of the procedure for proving a prior, equivalent DUI conviction. Kearns, supra, 365 Pa.Superior Ct. at 19, 528 A.2d at 995.

42 Pa.C.S.A. § 9714(c) requires that the trial court, prior to imposing sentence, must have a complete record of the previous convictions and must furnish a copy of the record to the defendant. 42 Pa.C.S.A. § 9714(c). If the defendant contests the accuracy of the record, the court must schedule a hearing and direct the defendant and the Commonwealth to submit evidence regarding the previous convictions of the defendant. Id. Finally, the trial court must, based on the foregoing, determine by a preponderance of the evidence the previous convictions of the defendant. Id.; Commonwealth v. Allen, 508 Pa. 114, 118 n. 3, 494 A.2d 1067, 1070 n. 3 (1985).

Instantly, the only proof offered by the Commonwealth of a prior DUI conviction was a notation in the pre-sentence report. When the trial court inquired as to the source for the notation, the following discussion ensued:

The court: What was the source of the information regarding the prior DUI offense?
Mr. Moshier: The defendant and defense counsel; we attempted to receive further information relative to the conviction and were unable to locate the exact source.

Sentencing hearing at 5.

Our Supreme Court has declared that the trial court is to be furnished with a complete record of a defendant’s prior convictions. Allen, supra, 508 Pa. at 118 n. 3, 494 A.2d at 1070 n. 3. While Pennsylvania courts have consistently rejected the notion that due process requires a higher standard of proof than a preponderance of the evidence in mandatory sentencing proceedings, we have stressed the importance of proof through official documents. Commonwealth v. Lark, 350 Pa.Super. 558, 504 A.2d 1291 (1986) (“The proof of prior conviction is a simple historical fact which may be ascertained through official documents.”).

In the present case, the trial court was presented with no evidence of a prior conviction other than the probation officer's statement that the defendant admitted to a DUI conviction in New York for which he was fined $300. The Commonwealth did not introduce a record of the prior conviction or establish that the alleged prior offense was equivalent to a second degree misdemeanor DUI under 75 Pa.C.S.A. § 3731(a). Further, when the appellant contested the accuracy of the record, the trial court did not convene a hearing at which the Commonwealth could have submitted evidence regarding any previous convictions. Therefore, we must remand for a hearing in compliance with the foregoing.

Case remanded and jurisdiction relinquished.

      . The New York Vehicle and Traffic Law § 1192 provides for separate offenses of operating a motor vehicle while ability is impaired, operating a motor vehicle with a blood alcohol content of .10 or more, and the felony of operating a motor vehicle while intoxicated. Vehicle and Traffic Law § 1192(1), (2), (3), (5); see also People v. Boettcher, 69 N.Y.2d 174, 505 N.E.2d 594, 513 N.Y.S.2d 83 (1987).
      We acknowledge that in Commonwealth v. Bolden, 367 Pa.Super. 333, 532 A.2d 1172 (1987), we mandated that in instances where there is no current equivalent offense under Pennsylvania law, the prior out-of-state crime is to be scored as a non-weapons misdemeanor. We required, however, that in assessing the quality of a prior conviction in a foreign jurisdiction, the offense equivalency must be considered in terms of the nature and definition of the offense in light of the record of the foreign jurisdiction. Id., 367 Pa.Superior Ct. at 338-339, 532 A.2d at 1175. In Bolden, we further specified:
      This approach requires a sentencing court to carefully review the elements of the foreign offense in terms of the classification of the conduct proscribed, its definition of the offense, and the requirements of culpability____ It will also be necessary to examine the definition of the conduct or activity proscribed.

        Id.

      . We are fully cognizant of how difficult it often is to get information from sister jurisdictions. Nonetheless, the law in the Commonwealth requires this disposition. We are confident, however, that upon a full hearing, the district attorney will be able to satisfy the requisite burden of proof.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    538 A.2d 1336
    COMMONWEALTH of Pennsylvania v. Daniel STOVER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 16, 1987.
    Filed March 11, 1988.

      Richard J. Orloski, Allentown, for appellant.
    William H. Platt, District Attorney, Allentown, for Com. appellee.
    Before McEWEN, MONTEMURO and KELLY, JJ.
   McEWEN, Judge:

This appeal has been taken from the judgment of sentence to pay a fine of $300 plus costs, imposed by the distinguished Judge James N. Diefenderfer, after appellant was found to have violated Section 3743 of the Vehicle Code, 75 Pa.C.S. § 3743.

The trial judge in his able opinion has accurately summarized the facts relevant to the disposition of this appeal:

On November 10, 1982, at approximately 10:00 A.M., defendant’s motor vehicle collided with the rear of a tractor-trailer truck which was stopped at a red light on Seventh Street at Route 22. The collision occurred at a time when Seventh Street was under construction. Due to the construction, traffic was bumper to bumper and moving very slowly.
An electrical worker, Barry Dannenhower, employed by Bell of Pennsylvania, was stationed along Seventh Street where the truck had stopped. Dannenhower heard the crash and immediately notified the truck driver, Douglas R. McCoy, that his vehicle had been struck. McCoy exited his cab to survey the situation. McCoy found that the defendant’s motor vehicle, a green Pontiac, was damaged in the area of the hood and the windshield. The rear of the truck had been struck. McCoy asked the defendant some questions. However, the defendant refused to provide McCoy with his name, address, driver’s license and registration. He told McCoy only the year of his vehicle. McCoy recorded the motor vehicle license. Defendant told McCoy that he could not stay around because of his condition; McCoy testified that the defendant appeared to be intoxicated. Defendant then offered McCoy money so that he would not involve the police. Shortly thereafter, McCoy, upon seeing a police cruiser in the area, flagged the cruiser over. In response, the defendant got into his vehicle and headed east on Route 22.
McCoy gave the patrolman, Alfred C. Rhoads, Jr., the information for the police report. The patrolman issued a citation to the defendant later that day, using the license number to find the defendant’s identity and address. Defendant was cited for failing to give information when involved in an accident with an attended vehicle.

Appellant pleaded guilty on December 1, 1982, to a violation of 75 Pa.C.S. § 3743. Six months later, on June 6, 1983, appellant filed a petition for leave to appeal nunc pro tunc which was granted by the court a further six months later on December 22, 1983. A trial de novo was held on May 14,1984 — some seventeen months after the date of the asserted motor vehicle offense — and appellant was found guilty. While post-verdict motions were filed in timely fashion, argument was not held thereon until April 24, 1985, almost one year after the de novo trial. The post-verdict motions were not ruled upon for yet another year, when on July 21, 1986, they were dismissed. After sentence was imposed on November 24, 1986, appellant undertook the instant appeal.

Appellant presents two sufficiency arguments, initially asserting that the evidence was insufficient to support a conviction under Section 3743 of the Vehicle Code since the Commonwealth failed to establish that there was any “damage to a vehicle or other property” as required by 75 Pa.C.S. § 3743.

The settled standard of review for evaluating a challenge to the sufficiency of the evidence is “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984). Accord: Commonwealth v. Macolino, 503 Pa. 201, 205-06, 469 A.2d 132, 134 (1983); Commonwealth v. Tribble, 502 Pa. 619, 621-22, 467 A.2d 1130, 1131 (1983); Commonwealth v. Keblitis, 500 Pa. 321, 322-23, 456 A.2d 149, 150 (1983); Commonwealth v. Kennedy, 499 Pa. 389, 391-93, 453 A.2d 927, 928 (1982); Commonwealth v. Lovette, 498 Pa. 665, 669-70, 450 A.2d 975, 977 (1982).

Appellant argues that the statute did not require him to stop and to provide information at the scene of the accident since he did not observe the damage to the truck. We do not agree since the evidence, including the testimony of appellant as to the damage sustained by his own vehicle, was sufficient to support the conclusion of the trial court that the truck sustained damage, however slight, as a result of the accident. Thus, this insufficiency argument is rejected as meritless.

Appellant further argues that the evidence was insufficient to establish that he did not provide sufficient information to the driver of the second vehicle. We summarily reject this contention since the record provides ample support for the conclusion of the trial court that appellant did not provide to the victim the information required by Section 3744(a) of the Vehicle Code.

Appellant next argues that the judgment of sentence must be vacated since it was imposed after the expiration of the two year statute of limitations provided by Section 5553 of the Judicial Code, 42 Pa.C.S. § 5553(e).

This Court, in Commonwealth v. Jannenga, 335 Pa.Super. 77, 483 A.2d 963 (1984), held that, pursuant to 42 Pa.C.S. § 5553(e), “any summary proceedings initiated under title 75 must be disposed of at the trial level within two years [of the commission of the offense] or not at all.” Id., 335 Pa.Superior Ct. at 81, 483 A.2d at 965. The offense at issue was committed on November 10, 1982, thus establishing November 10, 1984, as the deadline for all proceedings relevant to the offense. As we have recounted, although appellant initially pleaded guilty, he subsequently sought and was granted leave to appeal nunc pro tunc, and, while appellant was found guilty after a trial de novo held on May 14, 1984, he was not sentenced until November 24, 1986, a date more than two years after the trial de novo and some four years and fourteen days after the date of the commission of the offense.

While the sluggish pace at which this case proceeded through the system triggers a number of arguments to support an assertion that the charges should be dismissed, appellant failed to raise the defense of the statute of limitations at any time in the trial court. Thus, we find the defense of the statute of limitations to have been waived and, therefore, affirm the judgment of sentence.

The defendant in Commonwealth v. Jannenga, supra, filed a motion to dismiss the charges based upon 42 Pa.C.S. § 5553(e) prior to the dismissal of his post-verdict motions. Thus, the issue was raised in a timely fashion and ruled upon by the trial court. Similarly, this Court, in Commonwealth v. Larson, 299 Pa.Super. 252, 445 A.2d 550 (1982), held that proceedings against a defendant charged with summary violations of the Vehicle Code were required, pursuant to 42 Pa.C.S. § 5553(a), to be instituted within thirty days after the commission of the offense. Proceedings against the defendant in that case were not instituted within the statutory time period and the court noted that “[t]he case against appellant therefore should have been dismissed upon proper motion.” Id., 299 Pa.Superior Ct. at 255, 445 A.2d at 551 (emphasis supplied). While the defendant in Larson had failed to file post-verdict motions, this Court (1) noted that the defendant had not been advised of the necessity of filing such motions, and (2) noted that the defendant had raised the defense of the statute of limitations in the trial court. Id., 299 Pa.Superior Ct. at 255 n. 3, 445 A.2d at 551 n. 3.

Appellant in the instant case, however, never raised the defense of the statute of limitations in the trial court, even though he could have raised the issue of the statute of limitations at any time between the expiration date of the statute of limitations, namely, November 20, 1984, and the date of sentencing two years later on November 24, 1986. The defense of the statute of limitations is waived by a failure to raise it in a timely fashion. See: Commonwealth v. Darush, 501 Pa. 15, 20 n. 4, 459 A.2d 727, 730 n. 4 (1983); Commonwealth v. Riley, 330 Pa.Super. 201, 212-14, 479 A.2d 509, 515 (1984). As appellant failed to timely assert in the trial court the defense of the statute of limitations, that defense has been waived and may not now form the basis for relief.

Judgment of sentence affirmed.

      . Section 3743(a) of the Vehicle Code provides:
      § 3743. Accidents involving damage to attended vehicle or property
      (a) General rule. — The driver of any vehicle involved in an accident resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary____
      75 Pa.C.S. § 3743(a).

      . Section 3744(a) of the Vehicle Code provides:
      § 3744. Duty to give information and render aid
      (a) General rule. — The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall give his name, address and the registration number of the vehicle he is driving, and shall upon request exhibit his driver’s license and information relating to financial responsibility to any person injured in the accident or to the driver or occupant of or person attending any vehicle or other property damaged in the accident and shall give the information and upon request exhibit the license and information relating to financial responsibility to any police officer at the scene of the accident or who is investigating the accident and shall render to any person injured in the accident reasonable assistance, including the making of arrangements for the carrying of the injured person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if requested by the injured person____
      75 Pa.C.S. § 3744(a).

      . Section 5553(e) of the Judicial Code provides:
      § 5553. Summary offenses involving vehicles
      * if * * * *
      (e) Disposition of proceedings within two years. — No proceedings shall be held or action taken pursuant to a summary offense under Title 75 subsequent to two years after the commission of the offense.
      42 Pa.C.S. § 5553(e).

      . As a result of our disposition of this appeal, we need not address the effect of the nunc pro tunc appeal upon the limitations period.

      . It is presumed that the court and prosecution share a distress that such extended delay occurred at each of several stages of the process.

      . Section 5553(a) of the Judicial Code provides:
      § 5553. Summary offenses involving vehicles
      (a) General rule. — Except as provided in subsection (b) or (c), proceedings for summary offenses under Title 75 (relating to vehicles) must be commenced within 30 days after the commission of the alleged offense or within 30 days after the discovery of the commission of the offense or the identity of the offender, whichever is later, and not thereafter____
      42 Pa.C.S. § 5553(a).


author: BECK, Judge:

text:
    538 A.2d 1339
    COMMONWEALTH of Pennsylvania v. Denise ROMETT, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1987.
    Filed March 11, 1988.

      Carol A. Shelly, Assistant Public Defender, Doylestown, for appellant.
    Before CAVANAUGH, BECK and HESTER, JJ.
   BECK, Judge:

Appellant, involuntarily committed to a psychiatric facility since February, 1986, now challenges the latest of her successive recommitments under the Mental Health Procedure Act, 50 Pa.Stat.Ann. §§ 7101-7503 (Purdon Supp. 1987). Appellant argues that her recommitment was based on insufficient evidence and that the lower court improperly considered appellant’s original assaultive behavior. Since neither claim has merit, we affirm the order of the trial court authorizing an additional period of institutionalization for appellant.

Appellant, who has a history of hospitalizations for mental illness, was involuntarily committed in February, 1986, as a result of assaultive behavior towards family members. This original commitment was extended three times before the hearing at issue, which was held in March, 1987. Testimony presented at this hearing established that, just before the hearing began, appellant violently slapped a nurse across the face. The slap broke the nurse’s glasses. The glasses cut her nose before flying across the room. This assault occurred after the nurse told appellant that appellant could not smoke before the hearing.

Appellant’s treating psychiatrist then testified that appellant had also recently shown assaultive behavior toward him. During a discussion of appellant’s possible recommitment, appellant became angry and slapped the psychiatrist’s loose-leaf binder toward his face. Appellant then threatened to “do something” but had not “decided what it will be.” The psychiatrist also testified that appellant suffers from schizophrenia and paranoia. According to the psychiatrist, appellant’s illness is manifested in delusions, poor impulse control, and beliefs that others are “out to get her.” He testified that a cessation of appellant’s treatment would reasonably result in future assaultive behavior. He testified that appellant posed a danger to others rather than to herself. Following this testimony, appellant was involuntarily committed for thirty days of in-patient treatment, to be followed by one hundred-fifty days of out-patient treatment.

Appellant asserts that this testimony was insufficient in that it did not establish that appellant had, within thirty days before the hearing, inflicted or attempted to inflict serious bodily injury on another, Section 7301(b) of the Act. However, appellant’s reliance on § 7301(b) is misplaced. That section of the Act applies to the original emergency-examination and commitment of a mentally disabled person. The hearing and order at issue concerned appellant’s third additional period of treatment. Therefore, section 7305, not 7301, is controlling.

Section 7305 provides that, at the expiration of a period of court-ordered involuntary treatment, the court may order treatment for an additional period. This order must be entered upon a hearing on the findings required by § 7304(a) and (b) and on the “further finding of a need for continuing involuntary treatment as shown by conduct during the person’s most recent period of court-ordered treatment.” 50 Pa.Stat.Ann. § 7305(a) (Purdon Supp.1987). The applicable paragraph of § 7304(a) referred to in § 7305 provides as follows:

“(2) Where a petition is filed for a person already subject to involuntary treatment, it shall be sufficient to represent, and upon hearing to reestablish, that [(1)] the conduct originally required by section [7301] in fact occurred, and that [ (2) ] his condition continues to evidence a clear and present danger to himself or others. In such an event, it shall not be necessary to show the reoccurrence of dangerous conduct, either harmful or debilitating, within the past 30 days.

50 Pa.Stat.Ann. § 7304(a)(2) (Purdon Supp.1987) (emphasis added).

Thus, in order for a person to be recommitted for an additional period of treatment, it need not be established that the person has inflicted or attempted to inflict serious bodily harm upon another within the past thirty days, as required for the original commitment. The Act specifically states that on recommitment it is not necessary to show that the patient committed an overt act within 30 days of the hearing. Commonwealth v. Helms, 352 Pa.Super. 65, 76-78, 506 A.2d 1384, 1390 (1986). In Re S.O., 342 Pa.Su per. 215, 492 A.2d 727 (1985). It is necessary however for the court to find that within the patient’s most recent period of institutionalization, the patient’s conduct demonstrated the need for continuing involuntary treatment, Section 7305(a); i.e. his condition continues to evidence a clear and present danger to himself or others, Section 7304(a).

Thus, under the Act, in order to assess the patient’s condition, a patient’s overall conduct, diagnosis and prognosis may be considered. Recommitment does not require that the patient do specific acts within 30 days of the hearing that show he was a danger to himself or to others. The Act specifically provides, “it shall not be necessary to show the reoccurrence of dangerous conduct ...” section 7304(a). The proper question is not whether appellant’s recent assaults involved an attempt to inflict serious bodily harm. The proper question which the trial court did address was whether appellant’s condition continued to evidence clear and present danger that such acts could occur.

The Act also requires that upon recommitment it “shall be sufficient to represent, and upon hearing to reestablish, that the conduct originally required, under Section [7301 — initial commitment] in fact occurred.” Section 7304(a). We do not read this provision as requiring that the grounds for the original commitment must be relitigated at each recommitment hearing. Such a requirement would be an enormous waste of resources and would create redundancy. We find that this provision is satisfied as long as the patient’s commitment history shows that the requisite behavior occurred in the past, unless on recommitment the patient affirmatively challenges the original commitment. In that event, the burden is on the patient to show that the original commitment was improper. Appellant does not challenge her original commitment.

The record in the instant case supports appellant’s recommitment for additional involuntary treatment. In an involuntary commitment proceeding, the Commonwealth must prove the requisite statutory grounds by clear and convincing evidence. Commonwealth v. Helms, 352 Pa.Su per. at 72-74, 506 A.2d at 1388. The evidence adduced below satisfies this burden. After being involuntarily committed on the basis of an overt act of clear and present danger to others, appellant continued to exhibit dangerous conduct. During appellant’s most recent hospitalization, her repeated, unprovoked assaultive behavior toward staff members at the hospital clearly evidenced her need for continuing involuntary treatment. See In re S.O. In addition, her diagnosis as a paranoid schizophrenic with delusions that others are threatening her, together with the prognosis that her assaultive behavior would continue without further treatment, support the trial court’s findings.

Appellant’s second contention is that the trial court improperly relied on facts not in the record. Appellant, after initially appearing before a mental health review officer, sought a review in the Common Pleas Court of the recommendation of commitment made by the mental health review officer. Another hearing was not held before the Common Pleas Court. Rather, the trial judge, with the consent of the parties, received as evidence the tape recording of the hearing before the review officer. The trial court found that the assaults described at the taped hearing before the review officer were recent episodes of a continuous pattern evidencing that appellant posed a clear and present danger to others. In its opinion confirming the review officer’s recommendation, the trial court noted that appellant’s original commitment was based on appellant’s setting a fire and assaulting members of her family. Appellant objects to the trial court’s consideration of any facts, particularly those dealing with her original commitment, other than the two assaults described in the taped testimony before the review officer.

However, appellant’s original commitment, and the facts supporting it, are contained in the record as the history of appellant’s case. Her present confinement is simply a continuation of that initial commitment. As we have already stated, the statute allows for the consideration of a patient’s original commitment as contained in that patient’s commitment history. Appellant did not challenge her original commitment at any stage below. Therefore, the trial court did not have to receive additional evidence concerning the original commitment before taking notice of the fact that appellant was originally committed on a showing of her clear and present danger to others.

The order of the court below, involuntarily committing appellant to thirty days of in-patient treatment to be succeeded by one hundred and fifty days of out-patient treatment, is hereby affirmed.

      . Section 7301 provides in part as follows:
      (a) Persons subject. — Whenever a person is severely mentally disabled and in need of immediate treatment, he may be made subject to involuntary emergency examination and treatment. A person is severely mentally disabled when, as a result of mental illness, his capacity to exercise self-control, judgment and discretion in the conduct of his affairs and social relations or to care for his own personal needs is so lessened that he poses a clear and present danger of harm to others or -to himself.
      (b) Determination of clear and present danger. — (1) Clear and present danger to others shall be shown by establishing that within the past 30 days the person has inflicted or attempted to inflict serious bodily harm on another and that there is a reasonable probability that such conduct will be repeated____ For the purpose of this section, a clear and present danger of harm to others may be demonstrated by proof that the person has made threats of harm and has committed acts in furtherance of the threat to commit harm. 50 Pa.Stat.Ann. § 7301(b) (Purdon Supp.1987).


author: OLSZEWSKI, Judge:

text:
    538 A.2d 1343
    COMMONWEALTH of Pennsylvania, Appellee, v. Donald BRISTOW, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 21, 1987.
    Filed March 15, 1988.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence entered after a jury found appellant guilty of rape, involuntary deviate sexual intercourse, statutory rape, corruption of a minor, incest, indecent assault, indecent exposure, and simple assault. Appellant argues that his trial counsel rendered ineffective assistance of counsel by: (1) failing to seek recusal of the trial judge since the trial judge had presided over appellant’s preliminary hearing in this matter; (2) failing to properly preserve for appellate review the issue of the sufficiency of the evidence to sustain appellant’s convictions; (3) failing to properly preserve for appellate review the issue of the competency of the victim in this matter; and (4) failing to file a motion to modify sentence challenging the trial court’s sentencing of appellant. We find appellant’s contentions to be meritless; accordingly, the judgment of sentence is affirmed.

During the summer of 1982 or 1983, appellant raped and sodomized his four-year-old daughter. The victim’s brother witnessed the rape when he peeked into appellant’s bedroom to see why his sister was screaming. Both children reported the incident to an aunt after they moved out of appellant’s house. Following a bench trial, appellant was convicted of rape, involuntary deviate sexual intercourse, statutory rape, corruption of a minor, incest, indecent assault, indecent exposure, and simple assault. Post-verdict motions were filed and denied. On April 23,1987, appellant was sentenced to forty-two to eighty-four months in prison. Trial counsel was then permitted to withdraw and new counsel was appointed. This timely appeal followed.

When confronted with a claim of ineffectiveness of counsel, this Court must determine whether the issue underlying the charge of ineffectiveness is of arguable merit. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). If the issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis in promoting the client’s interests. Id. In addition, appellant must establish that the ineffectiveness so prejudiced his case that he did not receive a fair trial. See Commonwealth v. Verdekal, 351 Pa.Super. 412, 506 A.2d 415 (1986). Counsel is presumed to be effective and the burden of proving to the contrary rests on the party alleging counsel’s ineffectiveness. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Appellant’s first contention is that trial counsel rendered ineffective assistance when he failed to seek recusal of the trial judge since the trial judge had presided over appellant’s preliminary hearing in this matter. We disagree.

The determination of whether a trial judge should recuse himself depends upon the following:

... “the type of evidence that the judge hears; if the evidence is inadmissible and is of a highly prejudicial nature, the judge should recuse himself or declare a mistrial if it is too late for recusal.” The judge should also recuse himself whenever there is substantial doubt as to his ability to preside impartially. The burden to show prejudice, however, is on the party seeking recusal. “If the evidence is admissible, or not of a highly prejudicial nature, recusal is not required,” and while it may be the better practice to have a different judge preside over trial than preside over pre-trial proceedings, such a practice is not constitutionally required and has not been made the basis for setting aside a verdict reached in an otherwise proper trial. This principle appears to be based on “the prevailing view that judicial fact-finders are capable of disregarding prejudicial evidence.”

Commonwealth v. Lewis, 314 Pa.Super. 298, 303-04, 460 A.2d 1149, 1151-1152 (1983) (citations omitted).

In the instant case, appellant fails to identify any instances where inadmissible and prejudicial evidence was presented to the trial judge. In fact, appellant asserts in his brief that “[a] showing of prejudice is unnecessary.” Brief for appellant at 15. The mere participation by the trial judge in an earlier stage of the proceedings does not per se provide a basis for requiring recusal of the trial judge. See Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982). We, consequently, find that appellant has failed to meet his burden of showing that he was prejudiced by having the trial judge preside at both his preliminary hearing and his trial. Accordingly, appellant’s trial counsel did not have sufficient grounds to seek recusal of the trial judge and, hence, counsel cannot be deemed ineffective for not advancing a meritless claim.

Appellant’s next contention is that trial counsel rendered ineffective assistance by failing to properly preserve for appellate review the issue of the sufficiency of the evidence to sustain appellant’s convictions. In support of this contention, appellant maintains that inconsistencies in the Commonwealth witnesses’ testimony rendered that testimony incapable of belief. Appellant stated in his brief that “where evidence offered to support a verdict of guilty is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding.” Brief for appellant at 19. Appellant, however, has muddled the distinction between evidentiary weight and sufficiency of the evidence. See Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984). It is well established that in reviewing a challenge to the sufficiency of the evidence:

[W]e view the evidence in the light most favorable to the Commonwealth, as verdict winner, and accept as true all evidence upon which the jury could properly have based its verdict. We then determine whether that evidence, together with all reasonable inferences to be drawn therefrom, was sufficient to enable the jury to find each and every element of the crime beyond a reasonable doubt. See: Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984); Commonwealth v. Tribble, 502 Pa. 619, 621, 467 A.2d 1130, 1131 (1983); Commonwealth v. Brown, 336 Pa.Super. 628, 634, 486 A.2d 441, 444 (1984). In making this determination, we consider all the evidence received, whether the trial court’s evidentiary rulings were correct or incorrect. See: Commonwealth v. Waldman, 484 Pa. 217, 222-223, 398 A.2d 1022, 1025 (1979); Commonwealth v. Boyd, 463 Pa. 343, 347, 344 A.2d 864, 866 (1975); Commonwealth v. Deemer, 316 Pa.Super. 28, 31, 462 A.2d 776, 777 (1983); Commonwealth v. Minnis, 312 Pa.Super. 53, 55, 458 A.2d 231, 232 (1983).

Commonwealth v. Anneski, 362 Pa.Super. 580, 582-83, 525 A.2d 373, 374 (1987), appeal denied, 516 Pa. 621, 532 A.2d 19 (1987). Accordingly, appellant’s contention that the testimony was not reliable, is irrelevant.

Nonetheless, even if appellant’s trial counsel had preserved a challenge to the sufficiency of the evidence, such a challenge would have been unsuccessful. After thoroughly examining the evidence presented, and taking from it all reasonable inferences favorable to the Commonwealth and resolving all conflicting evidence in favor of the Commonwealth, we find that a challenge to the sufficiency of the evidence would fail since the Commonwealth’s evidence proved beyond a reasonable doubt that appellant committed the crimes for which he was charged. See Commonwealth v. Chimenti, 362 Pa.Super. 350, 524 A.2d 913 (1987), appeal denied, 516 Pa. 639, 533 A.2d 711 (1987). See generally (N.T. November 20, 1986). Accordingly, trial counsel cannot be considered ineffective for failing to assert a merit-less claim.

Appellant’s third challenge to the effectiveness of his trial counsel is that trial counsel failed to properly preserve for appellate review the issue of the competency of the victim. Specifically, appellant maintains that the victim, who was seven years of age at the time of trial, failed to understand the duty to speak the truth and instead, “merely mouthed the answers to questions in which the prosecutor had previously coached her, including both the questions and the answers thereto.” Brief for appellant at 30-31. We find appellant’s contention to be meritless.

In Commonwealth v. Mangello, 250 Pa.Super. 202, 378 A.2d 897 (1977), this Court explained:

In general, the competency of a witness to testify is presumed and the burden falls on the party objecting to demonstrate the witness’ incompetence. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). However, when a child under the age of fourteen is called to testify, the presumption does not operate, and the competency of the infant-witness must be independently established. Id.

See also II Wigmore on Evidence § 508 (3rd ed. 1940). In establishing competency the court should inquire into three areas of testimonial capacity:

There must be (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is called to testify about and (3) a consciousness of the duty to speak the truth.
[Rosche v. McCoy, 397 Pa. 615, 620-621, 156 A.2d 307, 310 (1959)]
# * * # * *
Our standard of review of rulings on the competency of witnesses is very limited indeed.

Id., 250 Pa.Superior Ct. at 204-05, 378 A.2d at 898.

Instantly, the trial court stated that: “This Court had ample opportunity to observe the demeanor, alertness, thoughtfulness and sincerity of the child during voir dire and subsequent testimony____ During voir dire and throughout the trial the witness answered questions thoughtfully and in a forthright manner, was alert and responsive on the witness stand, demonstrated her ability to communicate, and to appreciate her duty to answer truthfully.” Trial court opinion at 4-5. The trial judge’s opportunity to observe the demeanor, alertness, thoughtfulness, and sincerity of a child witness may be more important than the words used by the child to answer questions. See Commonwealth v. Payton, 258 Pa.Super. 140, 392 A.2d 723 (1978). In addition, in response to appellant’s assertion that the victim seemed competent only as a result of prompting by the prosecutor, the trial court asked the following question: “Okay. [Victim], the answers you gave here in court, were they the truth answers or were they answers that somebody told you to say?” The victim responded: “The truth.” N.T. November 20, 1986 at 15. Again on the topic of prompting by the prosecutor, the victim further responded to questions by the prosecutor:

Q Now, when you came to my office, you talked to me about what happened with your dad; is that right?
A Yes.
Q When you came to my office, did I tell you what happened with your dad or did you tell me?
A No. What happened.
Q Right. But when we talked about it, did I tell you or did you tell me?
A You asked me and I told you.

N.T. November 20, 1986 at 59.

What appellant refers to as “coaching” was nothing more than the careful pretrial preparation necessary where a very young child must testify about the sexual abuse committed against her. Consequently, appellant’s trial counsel cannot be considered ineffective for-failing to preserve a meritless claim.

Appellant’s last contention of ineffectiveness concerns trial counsel’s failure to file a motion to modify sentence. Specifically, appellant maintains that the trial court sentenced appellant based upon the seriousness of the offense alone, ignored the character, history, and condition of appellant, failed to adequately articulate its reasons for the sentence, improperly considered appellant’s prior convictions as an aggravating circumstance, and imposed an excessive sentence. We disagree. Sentencing is within the sound discretion of the trial court and absent an abuse of discretion, will not be disturbed. See Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986), appeal denied, 514 Pa. 624, 522 A.2d 49 (1987) and 514 Pa. 635, 522 A.2d 1105 (1987).

It is well established that a sentencing court may not base its sentence upon the seriousness of the crime alone. See Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979). Instantly, our review of the record reveals that the trial court did not base its sentence on the seriousness of the crime alone; rather, the seriousness of the crime was only one factor considered by the trial court while imposing sentence. See N.T. April 23, 1987. Additionally, the record reveals that the trial court did consider the character, history, and condition of appellant as required by 42 Pa.C. S.A. § 9725. The trial court reviewed appellant’s presentence investigation report, including reports prepared in another county. As the court stated in its opinion: “[T]he Court considered all of the defendant’s [appellant’s] history, including his alcoholism, psychological and psychiatric reports, his work history, the testimony of various family members, the defendant’s present character and his condition, the impact of the crime on the victim, and the nature and circumstances of the crime.” Trial court opinion at 5. See N.T. April 23, 1987.

Additionally, pursuant to the mandate of our Supreme Court in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), our review of the record reveals that the trial court adequately stated its reasons for its sentence on the record. See N.T. April 23, 1987 at 30-31. We agree with appellant that a sentencing court cannot consider a defendant’s prior convictions as an aggravating circumstance since that factor has already been included in the computation of a defendant’s prior record score under the sentencing guidelines. See Commonwealth v. Bartlow, 354 Pa.Super. 444, 512 A.2d 34 (1986). In the instant case, however, the trial court did not consider appellant’s prior convictions as an aggravating circumstance; rather, the trial court looked to appellant’s prior convictions in order to establish appellant’s prior record score under the sentencing guidelines. See N.T. April 23, 1987 at 4. Lastly, the trial court did not impose an excessive sentence. As explained by the trial court:

After careful consideration of all the factors (including that defendant is a suitable candidate for some kind of therapy upon release) this Court sentenced defendant within the minimum standard range of the sentencing guidelines____ [T]he defendant was sentenced to forty-two (42) to eighty-four (84) months on the charge of Rape. The same sentence was imposed for Involuntary Deviate Sexual Intercourse to run concurrent with the initial sentence. Statutory Rape and Indecent assault merge into the above charges. The sentence on the charge of incest was suspended, as were the sentences for Corrupting the morals of a Minor and Indecent Assault. The charge of Simple Assault merges into Indecent Assault.

Trial court opinion at 5-6. Rape, pursuant to 18 Pa.C.S.A. § 3121, and involuntary deviate sexual intercourse, pursuant to Pa.C.S.A. § 3123, are both felonies of the first degree. Applying the sentencing guidelines, with a prior record score of 1, the suggested sentencing ranges for either crime is as follows: aggravated range of 66 to 82 months, standard range of 42 to 66 months, and mitigated range of 31-42 months. The statutory maximum for a felony of the first degree is twenty years. 18 Pa.C.S.A. § 1103. In the present case, appellant was sentenced to 42-84 months’ imprisonment. Accordingly, we find that the trial court did not impose an excessive sentence upon appellant.

Because we find that all of appellant’s sentencing contentions are meritless, appellant’s trial counsel cannot be deemed ineffective' for failing to file a motion to modify sentence.

Accordingly, the judgment of sentence is affirmed.

      . In its opinion, the trial court stated that appellant’s ineffectiveness claims were not properly before the trial court since trial counsel failed to raise these claims before, during, or after trial. We disagree. This Court has repeatedly stated that trial counsel is not expected to raise his own ineffectiveness. See Commonwealth v. Mueller, 341 Pa.Super. 273, 491 A.2d 258 (1985). Appellant’s ineffectiveness claims, consequently, were properly raised by appellant’s new counsel and, hence, should have been addressed by the trial court. Nonetheless, on appeal, we are obligated to examine appellant’s ineffectiveness contentions.

      . Appellant’s challenge to the weight of the evidence was preserved and addressed by the trial court. See Trial court opinion at 2-4.


text:
    538 A.2d 1348
    Joseph Eugene SNARSKI, Jr., Appellant, v. Edward KRINCEK and Delores Krincek, His Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1987.
    Filed March 15, 1988.

      Gifford R. Cappellini, Wilkes-Barre, for appellant.
    Mark A. Peleak, Assistant Public Defender, Kingston, for appellees.
    Before CAVANAUGH, BECK and HESTER, JJ.
   BECK, Judge:

This appeal arises out of a custody modification action commenced by appellees, Edward and Delores Krincek, on April 18, 1986 in the Court of Common Pleas for Luzerne County. The Krinceks are the maternal grandparents of the child in question, Joseph Edward Snarski (“Joseph”). Appellant is Joseph Eugene Snarski, Jr., Joseph’s father (“the father”).

Joseph was born on May 17, 1979. Shortly before Joseph’s birth, his father and mother separated and his mother went to live with her parents, appellees here (“the grandparents”). Shortly after Joseph’s birth, his parents were divorced. Joseph and his mother lived with the grandparents until August 5,1983 when Joseph’s mother tragically died. The father then sought custody of Joseph which was granted by order dated August 2,1984. The grandparents were granted partial custody rights as to Joseph. At the time of the entry of the August 2, 1984 order granting custody to the father, the father was remarried, had another son by his second wife and was in military service stationed in Florida. In December 1984, the father was transferred to England and took up residence there with his wife and both children. Approximately one year later, in February 1986, the father and his second wife separated and the wife left England to return to Florida, her parents’ home. She took both children with her, with the father’s consent. Shortly thereafter, the wife contacted the grandparents and told them that if they could obtain an order giving them custody of Joseph, they could have him. Accordingly, on April 18, 1986, the grandparents filed a petition for the immediate physical custody of Joseph and for modification of the prior custody order. On that day the trial court entered an ex parte order giving them temporary physical custody and requiring that notice of the order be given to the father.

On June 12, 1986 the father filed a Motion for Special Relief requesting that he retain legal custody of Joseph and alleging that he had attempted to secure leave from the armed forces immediately upon hearing about the fact that Joseph was now with the grandparents. In response to this Motion, the trial court entered an order granting the father specific periods of partial custody of Joseph. The father was discharged from the military and returned to Pennsylvania in August 1986.

After numerous other interim orders regarding continuances, hearing dates and grants of periods of partial custody were entered, on January 26 and 28, 1987 a full custody hearing was held. On April 1, 1987, the trial court interviewed Joseph, and on May 8, 1987 the court entered an order awarding custody of Joseph to the grandparents, subject to partial custody rights granted to the father. This appeal is from the May 8, 1987 order.

The trial court has developed an extensive record in this matter and has provided us with a comprehensive opinion in support of its May 8, 1987 order. In doing so, the trial court has fully comported with our longstanding requirement of a full record and complete trial court opinion in custody matters so as to enable us to conduct the searching review we are charged with making in such cases. English v. English, 322 Pa.Super. 234, 469 A.2d 270 (1983); Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982). We provide the following lengthy synopsis of the trial court’s opinion because we not only agree with the conclusions reached, but also because we regard the court’s analysis of the facts and law to be complete, convincing and correct.

First, the court recognized that its standard for decision of the issue before it differed greatly from the usual custody case involving an initial determination of custody between two parents. This is a case involving modification of an existing custody order and is a dispute between one parent and grandparents. The effect of these distinctions on the applicable legal standard, in the view of the trial court, was to greatly increase the burden on the grandparents to show why they should now have custody of Joseph. Citing In Interest of James John M., 333 Pa.Super. 417, 482 A.2d 637 (1984), the trial court recognized that the father’s right to custody of his child could only be forfeited if there were convincing reasons why the child’s best interests would be served by an award to the grandparents.

The court also took cognizance of the fact that in an action seeking modification of a existing custody order, the court must be reluctant to grant the modification in the interest of preserving stability in the child’s life. The order should be modified only if the party seeking modification demonstrates that the circumstances affecting the child’s welfare have substantially changed since the entry of the original order. Trial Court Opinion at 31, citing Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa.Super. 294, 418 A.2d 729, aff'd, 492 Pa. 183, 423 A.2d 333 (1980).

Thus, the court saw its task as follows. First, it had to determine whether there were changed circumstances warranting the reconsideration of the existing custody order. The burden of showing such was on the grandparents. Second, assuming that changed circumstances were demonstrated, the court then had to determine which of the competing parties should have custody in order best to serve Joseph’s interests. As to the latter determination, the court noted that in a case involving two parents, each shared an equal burden on this issue. However, in the instant case, the court saw the grandparents as having the increased burden of “overcoming the prima facie right of a father to custody.” Trial Court Opinion at p. 32.

Carefully applying these standards to the case before it, the trial court first analyzed whether there were relevant changed circumstances. The court noted that its initial award of custody of Joseph to the father on August 2,1984 was largely based on the court’s decision that the father was at that time “able to provide a complete home environment for the child.” Trial Court Opinion at p. 25. The father was then married to his second wife with whom Joseph had established a good relationship. The father also had his second son, Michael, with whom Joseph had established a good sibling relationship. The court also noted that it had at that time recognized and sought to preserve the existing valuable relationship between Joseph and the grandparents by granting them partial custody in the August 2, 1984 order.

In contrast, since the August 2, 1984 order, the following changes affecting Joseph’s best interests had occurred:

1. The father had moved Joseph to England and Joseph had then been returned first to Florida and then to Pennsylvania.
2. The father obstructed the grandparents’ access to Joseph when he was in Florida and England.
3. The father had abdicated his parenting responsibilities as to Joseph to his second wife when the family resided in England.
4. The father permitted Joseph to be taken by the second wife from England to Florida when the father and the second wife first separated.
5. The father and his second wife had divorced.
6. Joseph is no longer in contact with either the second wife or his half-brother Michael.
7. The father had only minimal contact with Michael.
8. The father is no longer in military service and is now unemployed.
9. The father has no home of his own and lives with his parents.

Thus, the trial court concluded that the stable loving environment to which it had committed Joseph by the original custody order no longer existed and that this constituted a change of circumstances sufficient to warrant modification of the order.

Second, the trial court found that the grandparents had succeeded in showing convincing reasons why the father’s “prima facie” right to custody should be overcome and in showing that Joseph’s best interests would be served by granting custody to the grandparents. First, the court noted that Joseph had lived all but one and a half of his eight years with the grandparents who have been a continuous source of stability for the child. Further, the court was convinced that since the initial award of custody to the father, he had demonstrated his inability to provide an environment for Joseph which would serve the child’s best interests. The court pointed to the father’s “deliberate policy” to interfere with Joseph’s relationship with his grandparents, which the court had found beneficial to Joseph, and the father’s tendency to act immaturely, compulsively, and without regard for convention. Next, the court credited the testimony of the father's ex-second wife that during their marriage, the father had not involved himself in either of the children’s upbringing. In fact, the court noted that the father had abandoned Michael, his second son, after divorcing the second wife and saw this as further indication of the father’s unwillingness or inability to parent his children. Given this behavior, the trial court did not believe the father would be a responsible parent in future. In contrast, the court saw the grandparents as having consistently provided a loving and stable environment for Joseph and as being mature, responsible and financially secure people. Thus, the court awarded custody to the grandparents and partial custody to the father.

Although our review of the trial court’s serious and thorough deliberations is broad, it is not without limitation. We can explain our standard of review no more clearly than did our Supreme Court in the recent case of Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987), as follows:

A broad or searching standard of review in custody matters is entirely proper. Mr. Justice Nix, now Chief Justice, writing for a plurality of the Court, stated in Commonwealth ex rel. Spriggs v. Carson, supra [470 Pa. 290, 368 A.2d 635 (1977)]:
It is now beyond dispute that the sole issue to be decided in a custody proceeding between contending parents is the best interest of the child ... In order to insure such a focus, our law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type. Thus, an appellate court is not bound by deductions and inferences made by a trial court from the facts found, ... nor must a reviewing court accept a finding which has no competent evidence to support it.
(citations omitted)

470 Pa. at 294-95, 368 A.2d at 637.

A broad scope of review, however, does not vest in the reviewing court either the duty or the privilege of making its own independent determination.

[T]his broader power of review was never intended to mean that an appellate court is free to nullify the fact-finding function of the hearing judge. It is a principle which runs through all our cases that the credibility of witnesses and the weight to be given to their testimony by reason of their character, intelligence, and knowledge of the subject can best be determined by the judge before whom they appear.

Carson, supra, 470 Pa. at 295, 368 A.2d at 637, citing Commonwealth ex rel Harry v. Eastridge, 374 Pa. 172, 177, 97 A.2d 350, 353 (1953).

This Court very clearly set forth the proper standard of appellate review in Commonwealth ex rel. Robinson v. Robinson, supra [505 Pa. 226, 478 A.2d 800 (1984)]; therein we stated that appellate review in custody cases should be confined to the issues presented in accordancé with the above cited principles enunciated in Carson.
... Thus, an appellate court is empowered to determine whether the trial court’s incontrovertable factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings, Bohachevsky v. Sembrot, 368 Pa. 228, 81 A.2d 554 (1951); and thus, represent a gross abuse of discretion. Carson. See also, Andrikanics v. Andrekanics, [sic] 371 Pa. 222, 89 A.2d 792 (1952). (Emphasis in original).
Robinson, 505 Pa. at 237, 478 A.2d at 806.

Id., 515 Pa. at 147-48, 527 A.2d at 529.

Thus, our task today is to ascertain if the trial court here committed a gross abuse of discretion. See also Barclay v. Barclay, 367 Pa.Super. 529, 530, 533 A.2d 143, 144 (1987) (scope of review in custody matters is gross abuse of discretion). Upon a painstaking review of the record, we find no such abuse of discretion. To the contrary, we find ample support for the trial court’s factual findings and regard the factual conclusions that the trial court drew from those findings as being eminently reasonable. Moreover, we find that the trial court decided this case in accordance with the legal principles applicable to such a custody dispute and, thus, committed no clear error of law. Accordingly, we will affirm the decision of the trial court.

I. Modification of Original Custody Order.

Appellant first argues that there has been no substantial change of circumstances warranting modification of the original custody order which gave custody to the father. We, on the other hand, conclude that there has beyond any doubt been a significant change in the circumstances relevant to Joseph’s best interests and that a reconsideration of the original custody order was mandated. We recognize that modification of an existing custody order should not be undertaken lightly, largely due to our ever present concern for preserving stability in the life of the subject child. Hartman v. Hartman, 328 Pa.Super. 154, 476 A.2d 938 (1984); Daniel K.D. v. Jan. M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982). The burden of proving a change in circumstance is on the party seeking modification of the custody order. Burr v. Morgart, 339 Pa.Super. 341, 488 A.2d 1155 (1985). However, where there is a substantial change in the situation affecting the child, a court must consent to reconsider the custody situation in light of that change to ensure the continued overall welfare of the child. Id.

Beyond the uniform reiteration of the foregoing general standard of decision, there is little consistency in our decisions regarding modification of custody orders. This is in large part due to the particularly fact sensitive nature of such cases. The court is faced with reviewing the broad scenario of the competing parties’ lives and assessing the impact on the child of various occurrences in those lives since the original custody order.

Nevertheless, we have surveyed the applicable cases and have drawn several conclusions to guide our review of the instant case. First, as we have stated, we are always and ultimately concerned with the welfare of the child and we take as a given that stability in the child’s life contributes to that welfare. However, we are also mindful that stability is not to be preserved when there are other reasons why the environment in which the child is living under the present custody order is no longer the one that will overall serve the child’s best interests. Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1984).

Because the child’s welfare is paramount, we evaluate the alleged changes in circumstance with an eye to whether they have impacted on the child. Burr v. Morgart, supra; Hartman v. Hartman, supra; Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); Commonwealth ex rel. Grimes v. Grimes, 281 Pa.Super. 484, 422 A.2d 572 (1980). Changes that do not have such an impact are irrelevant.

In evaluating the changes in circumstance allegedly warranting reconsideration, we also must keep in mind that there is almost no single factor that alone compels reconsideration. As the father in the instant case correctly indicates, neither the remarriage of one or both parents nor certain changes in residence, for example, will alone necessarily justify reconsideration. Burr v. Morgart, supra; Hartman v. Hartman, supra; Daniel K.D. v. Jan M.H., supra. Appellant is equally correct in asserting that the only circumstances relevant to reconsideration are those that have occurred since the entry of the original custody order. To consider those facts existing prior to or at the time of the prior order merely leads to relitigation of issues already determined. Burr v. Morgart, supra; Barclay v. Barclay, supra.

On the other hand, facts like changes in marital status or residence are not irrelevant to our inquiry. We have found a substantial change of circumstance in at least one case involving the remarriage of both parents after the initial custody order. Espersen v. Davidow, 359 Pa.Super. 531, 519 A.2d 479 (1986). In Espersen, both parties had remarried after the initial custody order. We considered the fact that the child had a strained relationship with the new wife of the father, who was the custodial parent under the existing custody order. We also considered that the child apparently had a good relationship with her mother and her new husband, who demonstrated that they could provide a good home to the child.

We have also identified other factors as being of central importance in finding a substantial change of circumstance. For example, we have emphasized that when a custodial parent obstructs contact between the child and the non-custodial party which was required by the existing custody order, the best interests of the child may no longer be served by that order and a reconsideration may be warranted. Pamela J.K v. Roger D.J., 277 Pa.Super. 579, 419 A.2d 1301 (1980).

Thus, in determining whether changed circumstances exist, the court’s focus must be on the child and not the custodians. This is because the law recognizes that exposing a child to the possibility of a new custodial arrangement may threaten the child’s stability and well-being. Therefore, the law requires that a predicate to challenging a custodial arrangement must be a showing of changed circumstances. For example, in determining whether there are changed circumstances, a court should not look only at the fact of remarriage of one or both parents but the court should inquire whether the fact of remarriage has resulted in changed circumstances for the child.

In the instant case, we find that all of the changes in circumstance considered by the trial court and listed above are both significant and have impacted on Joseph. They are variously relevant to the place where and the home situation in which Joseph lives, his relationships with the members of his former step-family, the treatment of Joseph by his father and the displayed attitude of his father toward the grandparents. There is no doubt whatsoever that the tumultuous situation in this child’s life since the original custody order of August 2, 1984, and the now perceived results of that tumult are “changed circumstances” warranting a review of the prior custody arrangement.

Appellant father concedes that at least two of the enumerated changes in circumstance did occur since the original custody order. Appellant concedes the deterioration of appellant’s second marriage and various “moves necessitated by ... [the father’s] career changes.” Brief for Appellant at 12. However, appellant argues that these do not warrant reconsideration of the custody order, and states what appears to be the major theme of appellant’s argument throughout this appeal, as follows: “... a parent’s unsettled past should not be emphasized at the expense of and without sufficient consideration for current stability.” Id., citing Hartman, supra.

Although we will address this recurrent theme at greater length below, we note at this juncture that it has no relevance to whether there were substantial changed circumstances here. The instability of appellant’s life, evidenced by his separation and then divorce from his second wife, his termination of his military career and several changes of residence, arose after the entry of the original order. This instability in turn produced instability for Joseph, which has temporarily abated only because since April 1986 he has been in the grandparents’ temporary custody. Moreover, as of the time of the custody modification hearing, this instability in appellant’s life had not been replaced by any noteworthy stability.

Thus, there is no analogy between the Hartman case, on which appellant relies, and this case. Although in Hartman the court did choose to de-emphasize the unsettled nature of the custodial parent’s life since the original custody order in deciding whether there were changed circumstances, it did so because it found that at the time of the modification hearing and for over a full year before that hearing, the custodial parent’s life had been quite stable and that the child in question was doing well. Id. 328 Pa.Super. at 160-61, 476 A.2d at 941. The Hartman court specifically stated that the unsettled past of the custodial parent’s life should not be emphasized only where that instability has not had an ongoing negative effect on the child. Id. (citing In re Leskovick, 253 Pa.Super. 349, 385 A.2d 373 (1978)). Accord Michael T.L. v. Marilyn J.L., 525 Pa.Super. 42, 525 A.2d 414, 418 (1987).

In the present case, we are not confronted with nearly so simplistic a situation as that of a custodial parent who has merely remarried and moved once or twice since the original custody order, but who has then settled into a stable relationship, residence and job.

Here, we have not just a change of residence since the first custody order, but rather several relocations, some interstate and some intercontinental, some made with the father and some made without him. We have not just a remarriage, but a deterioration of the very marriage that had provided the stable home environment which convinced the trial court to enter the original custody order in the first place. We have also the abandonment of Joseph by the father to the second wife, both in England and in letting her take Joseph back to Florida without the father. We have the father’s radically changed employment situation, which has gone from a ten-year military career to no job and no job prospects. In such a situation, it would have been a gross abuse of discretion for the trial court not to have reconsidered the existing custody order.

Before we conclude our discussion of this issue, we note that appellant raises two other specific concerns regarding the trial court’s analysis of the changed circumstances issue. For purposes of completeness, we will address both of these concerns briefly. Appellant asserts that the trial court erred by basing its finding of changed circumstances on facts existing prior to the initial custody order and by “penalizing” the father for being in the military service overseas. Neither argument has merit.

First, appellant is simply wrong in saying that the trial court considered facts prior to the first custody order in finding changed circumstances. In so stating, appellant has cited us to three pages of the trial court’s opinion. Notably, only one of these pages is actually in the section of that opinion that addresses changed circumstances. The other references are to the areas of the opinion where the trial court was either setting forth the general factual background of the case or discussing the father’s past conduct in connection with evaluating whether Joseph’s best interests would be served by granting custody to the father. The only actual reference to the court’s discussion of changed circumstances is to the area of the opinion where the court recites the history of Joseph’s custody from his birth to the present and notes that for six and one-half of Joseph’s eight years, he has lived with his grandparents.

This fact is undoubtedly relevant to a changed circumstance analysis. As we have stated, modifying custody orders raises a concern for preserving stability in the child’s life. By referring to Joseph’s history of living with his grandparents even prior to the original custody order, the trial court was merely stating that in deciding whether to reconsider the original order, we need have no concern here for preserving any stability in Joseph’s life. In fact, that order has provided Joseph with no stability at all. He is not even presently residing with his father pursuant to that order. Reconsidering that order at this time will in no way decrease the stability of Joseph’s life and, in fact, can do nothing but increase that stability by enabling us to find which of the competing parties has actually provided an overall stabilizing effect in Joseph’s life and to award them custody.

Appellant’s contention that in considering whether there were changed circumstances the trial court penalized the father for being in the military is equally devoid of merit. Once again, none of the areas of the trial court opinion cited by appellant where the trial court referred to the father’s military service are in the portion of the opinion on changed circumstances. In fact, in considering whether there were changed circumstances, the trial court noted that since the original order the father had left the military and was now unemployed. Thus, the court clearly would have been less inclined to find a change in circumstance if the father was still in the military and earning an income as he had been when the original order was entered.

II. Best Interest Analysis,

Having concluded that the trial court was correct in finding that reconsideration of the original custody order was appropriate, we must now proceed to the issue of what custody arrangement will now serve Joseph’s best interest. In this case, the best interest analysis is governed by our decision in In Re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977), as adopted by our Supreme Court in Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). Hernandez set forth the standard by which we must determine who, between a parent and a non-parent third party, should be granted custody, as follows:

When the judge is hearing a dispute between the parents, or a parent, and a third party, the manner of inquiry is more complex. The question still is, What is in the child’s best interest? However, the parties do not start out even; the parents have a “prima facie” right to custody,” which will be forfeited only if “convincing reasons” appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.

In Re Custody of Hernandez, 249 Pa.Super. at 286, 376 A.2d at 654; see also Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987); Chapman v. Goodman, 366 Pa.Super. 130, 530 A.2d 926 (1987); Jones v. Stone, 343 Pa.Super. 416, 495 A.2d 205 (1985).

Very shortly after the Supreme Court adopted the foregoing standard in Ellerbe, it issued a clarification of the standard in Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980), where the Court affirmed an award of custody to maternal grandparents as opposed to the subject children’s father. This clarification has not received sufficient attention in our case law and, therefore, merits reiteration:

Most recently, this Court has had occasion to adopt the standard set forth by the Superior Court in In Re Hernandez, supra; Ellerbe v. Hooks, supra. In holding that parents have a “prima facie right to custody,” we explained that standard as providing for:
“... simply instruct the hearing judge that the non-parent bears the burden of production and the burden of persuasion and that the non-parent’s burden is heavy.” Ellerbe v. Hooks, [490 Pa.] p. [368], 416 A.2d p. 514.
However, we made it clear that there was no intention in adopting this formulation to suggest that parenthood alone would necessarily defeat the claim of custody of a non-parent.
... a reference to an implicit misperception in Superior Court’s reasoning [in this case] is required. That court framed the issue in terms of the absence of any evidence “that the father has forfeited his prima facie right to custody of his sons, ...” ... Such a formulation tends to focus the inquiry on the respective rights of the contesting parties whereas the real issue is the best interest of the children involved. Restated, the standard in this area is not to be construed as precluding a custody award to a non-parent, absent a demonstration of the parent’s dereliction. We again emphasize that the standard seeks only to stress the importance of parenthood as a factor in determining the best interests of the child. However, other factors which have significant impact on the well being of the child can justify a finding in favor of the non-parent, even though the parent has not been shown to have been unfit.

Id., 491 Pa. at 325-28, 421 A.2d at 159-61.

The lessons to be taken from these passages are several. First, although parenthood is a highly important factor, it should not be accorded determinative weight in our decision. Other factors, like the value of stability, are also to be accorded great weight. Indeed, in Ellerbe itself the Supreme Court affirmed the trial court’s grant of custody to grandparents over a parent of the subject child for the very reason that the child had developed a stable relationship with the grandparents and had a stable environment with them. The same basic situation was presented in Albright, and once again the grandparents were given custody. Second, the Hernandez standard is first and foremost an allocation of the burden of proof to the third parties, but it does not impose on them the burden of showing that the parent is unfit. Thus, the issue centers on the child, and not on the parent.

In the case before us, despite the allocation of the burden of showing convincing reasons to the grandparents, the hearing court nevertheless awarded custody to the grandparents. We must thoroughly review the court’s assessment of the evidence to determine whether this conclusion was a gross abuse of discretion when measured against the legal principles enunciated above.

Appellant contends that the hearing court committed several missteps in assessing the evidence. Appellant summarizes these alleged errors as follows:

The Court overemphasized the stability of the Krincek [the grandparents’] home and the length of time Joseph had lived there. Furthermore, the Court abused its discretion by relying upon testimony from a witness who had previously committed perjury, by improperly considering the custody of Mr. Snarski’s other child, and by placing weight on Joseph’s preference.

Brief for Appellant at p. 14.

We reject appellant’s critique of the hearing court’s decision on two grounds. First, appellant has misconstrued the role of this Court in asking that we question the hearing court’s assessment of the credibility of the witnesses. Second, appellant has asked us to disapprove the hearing court’s consideration of factors, like the preference of the child, which have long been recognized as relevant to a custody determination. Burr v. Morgart, supra. However, we also reject appellant’s arguments because our independent review of this record has convinced us that there are more than convincing reasons why the grandparents are presently the most suitable custodians for Joseph.

Appellant’s first argument focusses on the hearing court’s consideration of the stability of the grandparents and of Joseph’s relationship with them. Appellant contends that “... stability and length of relationship are not necessarily convincing reasons to defeat a parent’s right to custody.” Brief for Appellant at p. 14. In support of this assertion, appellant cites those passages in In Re Custody of Hernandez, supra, and In Interest of James John M., supra, where this court stated that although stability is important, we must also determine why a child has been allowed to develop a long-term and stable relationship with one of the competing parties. In Re Custody of Hernandez, 249 Pa.Super. at 296-98, 376 A.2d at 660; In Interest of James John M., 333 Pa.Super. at 424, 482 A.2d at 641.

In making those statements, however, we wished only to avoid awards of custody to the party with whom the child was presently living merely because that party had possession of the child for some time prior to the hearing. As we said in Hernandez, “[t]o hold otherwise would be to enable the third party to defeat the child’s parent by force — by keeping possession of the child and by prolonging that possession by litigation.” 249 Pa.Super. at 297, 376 A.2d at 660.

Appellant’s reliance on these cases and the concerns we expressed in them is misplaced. Here, the hearing court's reliance on the stability of the grandparents and of their relationship with Joseph was proper. What helped to convince the court that custody should go to the grandparents was not merely the fact that Joseph had resided with the grandparents most of his life and for some months prior to the hearing. The court was persuaded by the stability of the grandparents themselves and by the fact that they had been the only long-term stabilizing influence in Joseph’s life. In other words, the court found the grandparents to be stable people, who were financially secure, owned their own home and business, and had a long-term, good marriage. More importantly, the court found the grandparents to have been the people who were always there for Joseph, always loving, always concerned. In contrast, the court noted that in the one and one-half years that Joseph had been in his father’s custody, he had been exposed to chaotic conditions. He had lived through a short-term move to England, his father’s troubled and sometimes violent second marriage, and a return to Florida without his father.

In this regard, we find a close parallel between this case and the situation presented to the Supreme Court in Al-bright. There, the Court found convincing reasons for an award of custody to maternal grandparents in part because, as the Court stated, “... the children had been exposed to chaotic conditions throughout their lives as a result of the marital difficulties between the parents and ... the home of the grandparents had proven to be the single stabilizing factor in their lives.” 491 Pa. at 327, 421 A.2d at 160.

Appellant also appears to suggest that the grandparents should not be “given credit” for the time Joseph has lived with them since his return to Pennsylvania in April 1986 because the grandparents would never have had Joseph with them during that time if not for the father’s forced absence from the country due to his military service. This is plainly wrong. In our view, the true reason why the grandparents have had Joseph since April 1986 is because the father allowed his then second wife, from whom he was already separated, to bring Joseph back to this country and she offered Joseph to the grandparents. They proceeded to obtain temporary custody of Joseph in a perfectly appropriate manner, by obtaining a temporary custody order from the trial court. If delays in litigation then allowed Joseph to remain with the grandparents for some months, in which time he rekindled his already close relationship with them, we will certainly not punish Joseph as a result of that circumstance. As we have previously opined, where a stable relationship has developed between a child and one of the parties competing for custody because delays in the custody litigation, not primarily the fault of either party, have prolonged the child’s stay with that party, we will still credit the attachments the child has formed while in that party’s home. Custody of Phillips, 260 Pa.Super. 402, 394 A.2d 989 (1978).

Appellant next contends that the hearing court erred in considering evidence of his dereliction of his parental responsibilities in the past. Appellant alleges error on two bases. He states the “recurrent theme” to which we have previously referred, i.e., that we should not focus on a parent’s unsettled past but rather on his present situation and parenting abilities. He also attacks the court’s acceptance of the testimony of appellant’s former second wife to the effect that appellant did not involve himself in either of his children’s lives when the family resided in England.

Taking the last contention first, we need only reiterate what has been said so many times before. Assessment of the credibility of testimony is for the hearing court and our broad scope of review in custody cases does not alter this principle. Lombardo v. Lombardo, supra. We will not second guess the judge who saw and heard the witness say that which we can only read. Further, we too credit the testimony of the second wife. We recognize that she admitted to having lied on behalf of the father at the prior custody hearing in 1984 when she was still married to the father, allegedly because she feared the consequences from the father if she did not. We also accept, however, as did the trial court, that her reason for lying no longer existed at the time of the second hearing. We also point out that to the extent that the wife did perjure herself at the first hearing, she certainly did not do so completely on her own. The wife’s perjury was at the instance of the father and thus there is equal doubt cast on his credibility in denying the wife’s testimony concerning his ability and willingness to parent.

We also refuse to accept and apply appellant’s theme which seeks to bury the past in favor of an examination of the present. We do not question the long-standing principle that the proper focus of inquiry in a custody case is on the present and the future.

The primary concern in custody matters lies not with the past but with the present and future. Facts as of time of hearing are the foundation for determination of the court. Past conduct is not relevant unless it will produce an ongoing negative effect on the child’s welfare.

Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509, 514, 444 A.2d 1299, 1301 (1982) (emphasis in original) (citations omitted).

It would be patently ridiculous to say, however, that a court must blind itself to all that a parent has done prior to the custody hearing. We do not live our lives in distinct and unconnected periods of time, with the past importing nothing for the present, nor the present for the future. What we have been and done makes us what we are, and what we are gives some indication of what we will be. Thus, where a parent’s past reveals character traits that undermine the ability or willingness of that parent to pro: vide for his child, and in the absence of evidence that those traits have somehow changed so as to produce new parenting abilities and concern, we can rightfully conclude that the risk that the past will be repeated in the future justifies an award of custody to a third party who has never indicated an inability or unwillingness to care for the child. The hearing court’s consideration of appellant’s past conduct in this case was perfectly appropriate for the very reason that the court in fact looked to the past in order to assess the present and the future. Moreover, the court also fully considered all other available information concerning the father’s present situation and character and his intentions as to the future. The court found predominantly negative evidence from the past and little if any convincing evidence of a present change of character or amelioration of the father’s circumstances.

The hearing court reviewed the testimony of the expert witnesses called by both parties and found them in surprising agreement as to most of the pertinent issues. Both agreed that the father did not adequately control his emotions, which led to impulsive and sometimes imprudent behavior. They also agreed that the father had ignored Joseph and had not been as good a father as either expert would have wished. Although the father’s expert testified that the father had changed and presently had the ability and willingness to care for Joseph, the court disagreed.

The court found, and we agree, that the father’s present situation did not argue in favor of an award of custody to him. He is presently unemployed and has no home of his own. The court also took cognizance of the father’s present neglect of his other son, Michael, the product of the father’s second marriage. Appellant argues that this consideration of the father’s present conduct is inappropriate. Although we do not accord great weight to this factor, we do not think it was a gross abuse of discretion for the trial court to have taken notice of it. Since appellant’s major argument is that we should ignore the past because he is a changed man, it was not at all unreasonable for the hearing court to search for empiric evidence of this change. One area the court looked to was appellant’s displayed attitude toward Michael. The court found only unrebutted evidence of neglect continuing to the present time. It was not error for the court to consider this evidence.

Lastly, we consider appellant’s objection to the hearing court’s consideration of Joseph’s expressed preference to stay with his grandparents. The court gave some weight to Joseph’s preference, but expressly refused to consider it a controlling factor. Trial Court Opinion at 46. Appellant argues that Joseph’s preference was entitled to no weight in this case because it was based solely on irrelevant factors like Joseph’s desire to stay with his grandparents to receive the toys they often gave him.

We have recently restated the manner in which a child’s preference is to be evaluated in a custody matter:

The weight to be given a child’s preference is to be determined by the trial judge who sees and hears the child. Commonwealth ex rel. Grimes v. Grimes, ... [281 Pa.Super. 484, 494, 422 A.2d 572, 577 (1980).] Accord: In re Davies, 288 Pa.Super. 453, 466, 432 A.2d 600, 606-07 (1981). This depends to a great extent upon the age, maturity and intelligence of the child. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 327 n. 4, 421 A.2d 157, 160 n. 4 (1980). The determination must be made on a case by case basis. Although a child’s preference should be carefully considered, it is not controlling. Commonwealth ex rel. Bankert v. Children’s Services, 224 Pa.Super. 556, 307 A.2d 411, 415 (1973).

Burr v. Morgart, 339 Pa.Super. at 346, 488 A.2d at 1158. See also Mahoney v. Mahoney, 354 Pa.Super. 585, 512 A.2d 694, 697 (1986); Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981).

Although Joseph did not precisely articulate the reasons underlying his desire to stay with his grandparents, we, and presumably the hearing court, have been able to glean some of Joseph’s reasons from a review of the colloquy between him and the hearing judge. Joseph did not solely base his preference on the grandparents’ generosity as to giving toys or taking him to places like the circus, as appellant argues. Joseph repeatedly stated that he loved his grandparents and liked to live with them. He also displayed hostility toward his father and expressed dislike for him. Joseph also referred to various unpleasant incidents that had occurred during his time with his father in England, including when the father had, according to Joseph, “beat” his second wife. Overall, we construe Joseph’s preference to be based on a feeling of love and security and happy times with his grandparents as compared to a feeling of distance and very unhappy times with his father. The facts bear out Joseph’s perceptions. The trial court committed no error in according this preference some, but not controlling, weight.

The order of the trial court is affirmed.

CAVANAUGH, J., concurs in the result.

      . In the body of appellant’s brief to this Court, appellant appears to argue that since under the Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C. § 501, appellant was allegedly entitled to a stay of these proceedings at the outset to enable him to return from military service overseas, the trial court should not have considered against appellant his several month delay in opposing the grandparents’ attempt to get custody, nor should it have considered the fact that Joseph was now living with the grandparents since they obtained temporary custody of Joseph during the father’s absence from the country because of his military service. Our responses to this fallacious argument are several. First, to the extent that appellant has any argument based on the Soldier’s and Sailor’s Relief Act, he has clearly waived it. The argument was not raised in the trial court until the day of the custody hearing, seven months into this custody dispute, and it is not included in the Statement of Questions Presented section of appellant’s brief to this Court. Pa.R.App.P. 2119(f). In any event, the trial court did not consider appellant’s military service against him and the reason the grandparents succeeded in getting temporary custody of Joseph in April 1986 was not the father’s military service but rather his own act in permitting his second wife to bring Joseph to this country, and her act of offering Joseph to the grandparents.

        . We also note that we find appellant’s objection to the hearing court’s consideration of the situation with Michael somewhat disingenuous. It was counsel for appellant who first raised this issue at the hearing. Counsel attempted to demonstrate that appellant had been determined to be a fit parent for Michael by the Florida court presiding over the divorce and custody action between appellant and his second wife. (R. 118-19a). Given this, we find it only natural for counsel for appellees to wish to probe further into appellant’s actual attitude toward and involvement with Michael and for the court to consider the evidence that was then elicited.


author: PER CURIAM:

text:
    538 A.2d 1362
    Dena DUBIN, Appellant, v. Stanley DUBIN.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1988.
    Filed March 16, 1988.

      Neil Hurowitz, King of Prussia, for appellant.
    Emanuel A. Bertin, Norristown, for appellee.
    Before CAVANAUGH, ROWLEY and POPOVICH, JJ.
   PER CURIAM:

This is an appeal by Dena Dubin, appellant, from the trial court’s order of February 20, 1987, making an unallocated award for the support of appellant and one child of $600 per week from January 28, 1986 through December 31, 1986, and of $500 per week thereafter. Appellant’s claims for support for herself and the parties’ child were filed as part of her divorce action. Appellee Stanley Dubin asserts, inter alia, that an unallocated award of spousal and child support is interlocutory and therefore not appealable until the final disposition of the case. He requests that the appeal be quashed. Appellant counters that where the trial court’s order is not allocated between spousal and child support, the need to protect the child’s welfare requires that the trial court’s order be considered final and immediately appealable in its entirety.

Appellant’s concern for the welfare of the child involved in a divorce action is shared by the courts of this Commonwealth. A child support order, because of the need to ensure the child’s uninterrupted maintenance, is immediately appealable. Ritter v. Ritter, 359 Pa.Super. 12, 17, 518 A.2d 319, 322 (1986). The instant appeal, insofar as it is from the trial court’s award of child support, is therefore properly before us. At the same time, the law “abhors ‘piecemeal determinations and the consequent protraction of litigation.’ ” Fried v. Fried, 509 Pa. 89, 97, 501 A.2d 211, 215 (1985) (quoting Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954)). Thus, orders of interim relief in the form of alimony pendente lite and counsel fees and expenses, issued pursuant to section 502 of the Divorce Code, 23 P.S. § 502 (Supp.1987), have been held to be interlocutory and therefore not appealable. Fried v. Fried, supra. Appellant contends that she was awarded spousal support rather than alimony pendente lite. However, because spousal support and alimony pendente lite are indistinguishable in the context of a divorce action, an order awarding spousal support in a divorce action is also interlocutory. Ritter v. Ritter, 359 Pa.Super. at 16, 518 A.2d at 321.

The order in question does not specify what portion of the support award is for the child and what portion for the spouse. Therefore, we are unable to undertake a meaningful review of appellant’s claims concerning the former. We decline to treat the entire award as an unreviewable award of spousal support, for doing so would entail the possibility that the child’s interests would be harmed in the period preceding final disposition of the case. At the same time, our Supreme Court has made it abundantly clear that appeals of orders granting interim relief in divorce proceedings produce “disastrous” results and will no longer be allowed. Fried v. Fried, supra. If we allow appellant, and other litigant spouses whose claims for support have been joined with those of their children, to obtain appellate review of an unallocated support award in its entirety, we will have created a major loophole in the holdings of Fried and Ritter.

Therefore, we hold that where the trial court, in the course of a divorce action, awards interim spousal support, whether as “alimony pendente lite ” or as “spousal support,” and child support in the same order, the court shall specify the amount intended for the support of the child and the amount intended for the support of the spouse. We will then be in a position to review the child support award if it should be appealed. The portion of the award that is allocated for spousal support, on the other hand, will be interlocutory and unappealable. This procedure will enable us to uphold the policy of Fried and Ritter against piecemeal appeals without at the same time holding the needs of the child hostage to the often-protracted litigation undertaken by the parents. Accordingly, we remand this case to the trial court with instructions to file, within twenty days, an amended order allocating the support award in accordance with our holding herein. The amended trial court order shall be promptly certified to this court.

Case remanded with instructions. Superior Court and panel jurisdiction retained.