author: HOFFMAN, Judge:

text:
    609 A.2d 183
    Dorothea R. ALEXANDER v. Antonio ARMSTRONG, Appellant.
    Superior Court of Pennsylvania.
    Argued March 24, 1992.
    Filed May 15, 1992.

      Leonard R. Parks, Philadelphia, for appellant.
    Sandjai Weaver, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before McEWEN, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the order entered May 22, 1990, directing Antonio Armstrong to pay child support in the amount of $400.00 per month plus $20.00 per month in arrears. Appellant Armstrong contends that the trial court erred in (1) determining that his basic allowance for quarters (BAQ) and variable housing allowance (VHA), which he receives for being in the armed services, are income for the purposes of child support payments; (2) assessing him $1,000.32 for payment of an asthma device for his child since there was medical coverage for the device; and (3) calculating child support payments in violation of Pa. R.Civ.P. 1910.16-5(h). For the following reasons, we affirm.

Appellee, Dorothea Alexander, is the mother of D.A. bom April 28, 1989. On September 15, 1989, appellee filed a complaint for support/patemity, naming appellant as D.A.’s father. Appellant signed an acknowledgement of paternity which was adopted by the court in an order dated April 19, 1990. A temporary order of support in the amount of two hundred dollars ($200.00) was entered on April 19, 1990. On May 22, 1990, a full support hearing was held. As a result of that hearing, the trial court made the following findings of fact:

Appellant and Dorothea Alexander, Appellee, are the parents of [D.A.] bom April 28, 1989. The parties never married each other.
Appellant is a hospital corpsman third class in the United States Navy. At the commencement of this action, he was stationed at the naval base in Philadelphia and resided off-base with his wife and two children. In June 1990, Appellant was transferred to Okinawa, Japan.
In addition to his base pay of $1124.40 per month, Appellant also receives $314 per month as a basic allowance for quarters (BAQ) and $171 per month as a variable housing allowance (VHA). Those allowances are provided for off-base living expenses when there is no family housing available on-base. Appellant’s wife receives these allowances now that he is in Japan. The Court found Appellant’s monthly net income to be $1370.86, after mandatory deductions.
Appellee, Dorothea Alexander, is employed by a hospital as a respiratory technician. In addition to [D.A.], Appellee also has a six-year-old daughter for whom she does not receive any child support.
Appellee earns $9.98 per hour and works overtime on a regular basis. The Court found her monthly net income to be $1291.26, after mandatory deductions and reduction for the support of her daughter.
The parties’ son, [D.A.], was bom with lung problems and continues to suffer from asthma. Because of his condition, Appellee, in response to his doctor’s suggestion, purchased respiratory equipment to be used at home for the child. That equipment cost $2000. The child also suffered from a hernia ailment which cost Appellee $60 for a visit to an emergency room for treatment.

Opinion, Braxton, J., at 1-3. Based on the aforementioned factual findings, the trial court determined that the costs of D.A.’s respiratory equipment and the emergency room visits were extraordinary expenses and ordered appellant to pay one-half of the cost of them. Furthermore, the court determined that D.A. required support in the amount of $846.76 per month. As a result, the court ordered appellant to pay $400 per month in support. The court further applied its order retroactively to September 15, 1989 and assessed $20.00 per month in arrears. Appellant then filed a petition for reconsideration, which was denied. This timely appeal followed.

A.

Initially we note that our scope of review in the present case is limited. We will not disturb a child support order absent a clear abuse of discretion. Levine v. Levine, 360 Pa.Super. 297, 300, 520 A.2d 466, 467 (1987); Remick v. Remick, 310 Pa.Super. 23, 28-29, 456 A.2d 163, 166 (1983). “ ‘An abuse of discretion is not ‘merely an error of judgment, but if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ’ ” Coffey v. Coffey, 394 Pa.Super. 194, 196-97, 575 A.2d 587, 588 (1990) (citations omitted); see also Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 794 (1985). However, a finding of such abuse of discretion will be made only upon a showing of clear and convincing evidence, and the trial court will be upheld on any valid ground. Griffin v. Griffin, 384 Pa.Super. 188, 193, 558 A.2d 75, 78 (1989). See also Straub v. Tyahla, 274 Pa.Super. 411, 418 A.2d 472 (1980). With this standard in mind, we can proceed to address appellant’s contentions.

B.

Appellant contends that the trial court erred in determining that his basic allowance for quarters (BAQ) and his variable housing allowance (VHA) constituted income for the purpose of calculating child support. Preliminarily, we note that appellant’s contention presents an issue of first impression in Pennsylvania, and thus, when necessary, we will look to the law of other jurisdictions for guidance.

Appellant first argues that the definition of “income” in the child support guidelines, Pa.R.Civ.P. 1910.16-1 et seq., as well as the definition of “income” under Pennsylvania support law, 23 Pa.C.S.A. § 4302, contain specific enumerated sources of income and that none of these sources include military allowances. Accordingly, appellant argues that BAQ and VHA are not income under Pennsylvania support law. We disagree.

The definition of “income” which governs support matters in this jurisdiction and which has been incorporated into the child support guidelines, see Pa.R.Civ.P. 1910.16—5(b), is set forth in 23 Pa.C.S.A. § 4302. This section provides:

“Income.” Includes compensation for services, including but not limited to, wages, salaries, fees, compensation in kind, commissions and similar items; income derived from business; gains derived from dealings in property; interests; rents; royalties; dividends; annuities; income from life insurance and endowment contracts; all forms of retirement; pensions; income from discharge of indebtedness; distributive share of partnership gross income; income in respect of a decedent; income from an interest in an estate or trust; military retirement benefits; railroad employment retirement benefits; social security benefits; temporary and permanent disability benefits; workmen’s compensation and unemployment compensation,

(emphasis added). This section does not limit income merely to the type of compensation listed, but instead, through the use of the words “but not limited to,” includes any compensation of services. Thus, the fact that BAQ and VHA are not included within the examples provided is not dispositive of the issue of whether they are income under Pennsylvania support law.

Appellant next argues that the Internal Revenue Code does not tax BAQ or VHA allowance as income and thus such sums should not be considered as income to him in computing child support. Appellant’s argument is merit-less.

The fact that the Internal Revenue Code excludes from gross income qualified military benefits, of which military allowances are a part, see 26 U.S.C.A. § 134, is of little weight in the determination of whether BAQ and VHA should be included as income in calculating child support. The purposes underlying the two calculations are different. The Internal Revenue Code is concerned with reaching an amount of taxable income. The support law of Pennsylvania, on the other hand, is concerned with reaching the amount of income of both parents in order to determine the amount each parent can pay for the support of their child. See Pa.R.Civ.P. 1910.16-1. Furthermore, if the Pennsylvania legislature intended its definition of income for child support purposes to parallel the calculation of income for tax purposes, then the language of the child support statutes or guidelines would have reflected this. It does not.

Appellant next argues that under the federal regulations promulgated pursuant to 42 U.S.C. § 659 (1975), which provides for enforcement of the support obligations of federal employees, BAQ and VHA are not included within the definition of “remuneration of employment,” are not garnishable and thus, are not income. 5 C.F.R. §§ 581.-102(i) and 581.104(h)(2)(ii) and (iii). We disagree.

First, § 581.102(i) defines “remuneration for employment” as follows:

compensation paid or payable for personal services, whether such compensation is denominated as wages, salary, commission, bonus, pay, or otherwise, and includes but is not limited to those items set forth in § 581.103.

(emphasis added). As the above-cited definition indicates, “remuneration” is not limited to those items listed in § 581.-103. Thus, the fact that military allowances are not included within this definition is not dispositive of whether military allowances are remuneration. Furthermore, § 581.103 provides examples of what is not considered remuneration and does not mention BAQ and VHA.

Second, the United States Supreme Court in Rose v. Rose, 481 U.S. 619, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987), held that the inability to subject certain federal benefits to garnishment does not prohibit a state court from utilizing them in child support proceedings. In Rose, the Court was faced with the issue of whether a veteran could be held in contempt in a state court for failure to pay child support when his only income was from veteran’s benefits. The Court stated that “[wjhile [veteran’s benefits] are exempt from garnishment or attachment while in the hands of the Administrator, we are not persuaded that once these funds are delivered to the veteran a state court cannot require that the veteran use them to satisfy an order of child support.” Id. at 637, 107 S.Ct. at 2039.

In the case at hand, the inclusion of appellant’s BAQ and VHA payments as part of his income does not conflict with the federal law governing enforcement of support obligations. While the trial court did attach appellant’s military wages in order to ensure his payment of $400.00 child support, such payment can be made directly from appellant’s monthly base salary of $1,121.40. Moreover, as the Supreme Court held in Rose, once appellant receives his BAQ and VHA, a state court can order him to use them to satisfy his child support obligations.

Appellant next asks this court to follow the lead of the Court of Civil Appeals of Alabama in Riley v. Riley, 562 So.2d 265 (1990), and find that for support purposes, BAQ and VHA are not income. The appellate court of Alabama, however, never made such a determination. In Riley, Mrs. Riley petitioned the trial court for return of custody of her two minor children from the father and for child support. The court granted her petition, but in calculating child support, did not include within Mr. Riley’s gross income his BAQ and VHA. Mrs. Riley appealed to the Court of Civil Appeals of Alabama, contending that under Rule 32 of the Alabama Rules of Judicial Administration, the court was required to include BAQ and VHA as part of her husband’s income. The appellate court affirmed on the grounds that at the time that the child support order was entered, Rule 32 was not binding on the court and furthermore, there was no evidence that Mr. Riley even received BAQ and VHA. Accordingly, the court never reached the issue of whether BAQ or VHA was income for child support purposes. Thus, appellant’s reliance on this case is misplaced.

Appellant’s final argument is that by finding that BAQ and VHA should be included within income, the trial court was discriminating against servicemen and their dependents who live off base. Specifically, appellant argues that if the lower court was presented with the situation of a serviceman living on base, with all other variables the same as appellant’s, the lower court clearly would not have considered the housing he receives when determining his child support obligation. Because this is not the situation in the case at hand, we decline to consider this issue now. However, we do note that appellant does not present any evidence that the trial court “clearly” would not have considered the value of on-base housing, nor does appellant discuss the discriminatory impact on a dependent such as D.A. who does not live with his military parent and thus, does not receive any benefit from the employer-supplemented housing whether it be on- or off-base.

As determined above, both Pennsylvania and federal law do not prohibit including BAQ and VHA within income when calculating income for child support purposes. Furthermore, appellant has not cited, nor has our own research discovered, any case law which has determined BAQ and VHA not to be income.

Finally, relevant to our analysis is the fact that the Pennsylvania Child Support Guidelines, Pa.R.Civ.P. 1910.-16-1 et seq., are based on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together. Explanatory Comment—1989, Pa.R.Civ.P. 1910.16-5. If D.A. was living with appellant or appellant’s new family, he would share in the benefit from the allowances appellant receives from the Navy for housing and utilities. However, because appellant does not live with appellant or appellant’s family, he does not receive any benefit from them. Accordingly, in keeping with the guidelines, we must include in appellant’s income his BAQ and VHA. Thus, we find that the trial court did not abuse its discretion in so doing.

C.

Appellant’s second contention is that the trial erred in ordering him to pay one-half the cost of the breathing apparatus purchased by appellee for D.A. Specifically, appellant argues that appellee never presented any evidence to substantiate her allegation that the breathing apparatus cost $2,000.63. Moreover, appellant argues that the appellee could have obtained insurance through her employer to cover the cost of the equipment, but instead willfully did not do so. Finally, appellant argues that the trial court erred in assigning his portion of the cost of the apparatus as an ongoing support obligation. Appellant’s claims are meritless.

Preliminarily, we note that under 23 Pa.C.S.A. § 4324, a trial court may order the obligor to pay, in addition to periodic support payments, a designated percentage of the child’s health care expenses, provided that those expenses are reasonable and necessary. Here, appellee testified that D.A. has suffered lung problems since birth. She testified that, as a result, D.A.’s doctor recommended that she obtain a breathing apparatus for D.A. She further testified that she had utilized the apparatus when caring for D.A. N.T., May 22, 1990, at 9. Appellant also testified that when D.A. visited him, he had needed to use the machine to care for D.A. Id. at 77. Accordingly, we find that the trial court did not abuse its discretion in finding that the breathing apparatus was a reasonable and necessary expense.

Appellee testified that she had canceled the insurance that she had on D.A. based on appellant’s representations that D.A. would be covered under his military insurance plan. However, when she was denied coverage by appellant’s insurer, she paid for the breathing apparatus herself. She testified that as a result, she rented and then purchased the apparatus from the hospital where she was employed and thus, was able to obtain a loan with a favorable repayment schedule. Id. at 22. Appellee then presented the court with evidence of the total cost of the machine ($2000.63), her initial payment ($1400.00), the amount remaining ($600.63) and her repayment schedule ($50.00 biweekly). Id. at 24-32. Accordingly, we find that the trial court did not abuse its discretion in finding that the total cost of the apparatus was $2000.63. Furthermore, given the extensive testimony concerning the parties’ financial situation, we find that the trial court did not abuse its discretion in ordering appellant to pay one-half of the total cost. See Lyons v. Lyons, 401 Pa.Super. 271, 284-85, 585 A.2d 42, 49 (1991).

Finally, we note that it is within the sound discretion of the trial court to determine the method of reimbursement. Here, the trial court provided appellant with two months in which to submit necessary documentation to his medical insurer. The court then ordered that if appellant’s insurer did not pay for the machine, appellant must pay appellee within ten months one half its cost at a rate of $100.00 per month. Again, we find no abuse of discretion in the court’s repayment method.

D.

Appellant’s last contention is that the child support order violates Rule 1910.16-5(h) of the Support Guidelines, which provides:

Child Care Expenses. Reasonable child care expenses paid by the the parent, if necessary to maintain employment, are the responsibility of both parents. Normally, the burden will be divided between the parents by determining the reasonable child care expenses and adding one-half of this amount to the monthly obligation.
When the custodial parent is employed, the obligor’s total support obligation including the obligor’s share of child care expenses, will usually be less than the total support obligation that would have been established if the custodial parent was not employed. However, the total support obligation of the obligor, including the obligor’s share of the child care expenses, shall never exceed the total support obligation that would have been established, if the custodial parent were not employed and therefore, had no child care expenses necessary to maintain employment.

Appellant argues that his total support obligation, including his share of the child care expenses, exceeds the total support obligation that would have been required had appellee been employed, and thus the trial court’s order is invalid. Appellant contends that according to the guidelines, his monthly support obligation can be no more than $294.55.

It is clear that the trial court did not follow Rule 1910.16-5(h) when it ordered appellant to pay $400.00 per month plus $20.00 per month in arrears. However, the court recognized that its order exceeded the limit created by the rule, but stated that it was deviating from the guidelines, and specifically Rule 1910.16-5(h), in order to factor in the extraordinary medical expenses incurred as a result of D.A.’s medical problems. Opinion, Braxton, J., at 4-6. Because the support guidelines are only a starting point and the court is obligated to deviate from them if the special needs of the child or the parents mandate, see Pa.R.Civ.P. 1910.16-5(a), and because the record does indicate that D.A. suffers from continuing medical problems, we cannot say that the trial court abused its discretion in setting appellant’s support obligation at $400.00 per month plus $20.00 per month in arrears. Accordingly we affirm.

Affirmed.

      . Basic allowance for quarters (BAQ) is an amount of money paid to a uniform military person in addition to his base pay to supplement his off-base housing expense. 37 U.S.C.A. § 403. Variable housing allowance (VHA) accompanies BAQ and supplements utility expenses incurred by the military person. 37 U.S.C.A. § 403a. A service person is entitled to BAQ and in most cases, VHA, when either he or his dependents reside outside of military quarters. 37 U.S.C.A. § 403. See Arquilla, Family Support, Child Custody, and Paternity, 112 Mil. L.Rev. 17, 40 (1986).

        . Instead we have found two cases which have determined BAQ and VHA to be income: Hautala v. Hautala, 417 N.W.2d 879 (1988) and Peterson v. Peterson, 98 N.M. 744, 652 P.2d 1195 (1982). In Hautala, Mr. Hautula, a Master Sergeant in the United States Air Force, contended that the trial court erred in considering BAQ and VHA as income because it was not included in the specifically enumerated sources of income provided by the code and because it is not garnishable under federal law. The Supreme Court of South Dakota affirmed, holding that the definition of “income" provided in the support statutes was not exclusive as evidenced by the broad wording of the statute and the use of the word “includes." Furthermore, the Court, citing Rose v. Rose, supra, held that the fact that BAQ and VHA are not garnishable does not preclude their being income. Hautala, supra, 417 N.W.2d at 881.
      In Peterson v. Peterson, supra, Mr. Peterson, a Technical Sergeant in the United States Air Force, appealed from an order increasing his child support payments on the basis that his income increased due to his receiving BAQ, VHA and BAS (basic allowance for subsistence) (food allotment). Sgt. Peterson contended that his military allowances were not income because they were not subject to garnishment under federal law. The Supreme Court, focusing only on 42 U.S.C.A. § 659 and the legislative history of that section, held that military allowances for off-base housing are "payments under the Federal programs in which entitlement is based in employment____ [and] [tjherefore— are proper sources of income that a state trial court can consider in determining whether there has been a financial change of circumstances sufficient to warrant an increase of child support payments.” Peterson v. Peterson, supra, 652 P.2d at 1198.
      As further support for including BAQ and VHA within income see Connors, Resolving Child Support Issues Beyond the Scope of AR 608-99, 132 Mil.L.Rev. 67, 78 (1991) (BAQ, VHA, and BAS should be included when calculating a military person's total income because these in-kind benefits received by the service person increase their income).

      . We note that the second paragraph of Rule 1910.16-5(h), upon which appellant relies, is deleted in the proposed amendments to the child support guidelines. See Pennsylvania Bulletin, Vol. 22, No. 13., Sat. Mar. 28, 1992, at 1383.

      . Applying Rule 1910.16-5(h), we find that appellant's support obligation would total $294.73 per month.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    609 A.2d 189
    Donald A. GROOMES v. James R. GAUT, Trustee Durate Absentia for Ada Jane Groomes, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1992.
    Filed May 18, 1992.

      David R. Gold, and James E. Whelton, Jr., Greensburg, for appellant.
    Henry A. Hudson, Jr., Greensburg, for appellee.
    Before ROWLEY, President Judge, and CIRILLO and BROSKY, JJ.
   BROSKY, Judge.

James R. Gaut, trustee durante absentia for Ada Jane Groomes, appeals from the October 17, 1991 trial court order.

Appellant’s statement of questions involved is as follows:

1. May a court-appointed Trustee Durante Absentia for a missing wife proceed to obtain a divorce on behalf of the missing wife in a divorce action initiated by the husband on the grounds of an irretrievably broken marriage where the parties have been separated in excess of five years and the wife has filed a counterclaim for a divorce on the grounds of an irretrievably broken marriage?
2. Whether a court-appointed Trustee Durante Absentia for a missing wife is permitted to obtain a no-fault divorce under the Divorce Code where the missing wife filed a counterclaim for divorce prior to her disappearance, the grounds for the divorce are clear and uncontested, and the divorce decree is a necessary legal prerequisite to the Trustee’s fulfilling the statutorily imposed duties of his office of collecting and preserving the assets of the missing wife, including the missing wife’s share of the substantial marital assets?
3. Whether the requirements of the Divorce Code are satisfied when an affidavit comporting with the criteria enumerated in former 23 P.S. § 201(d), now 23 Pa.C.S.A. § 3301(d), and the applicable mandates of Pennsylvania Rule of Civil Procedure 1920.42 is filed by the court-appointed Trustee Durante Absentia on behalf of the counterclaim plaintiff in the action, such that the affidavit should not be dismissed or struck off?
4. Whether appellant, as a court-appointed Trustee Durante Absentia for a missing wife in a divorce action initiated by the husband, is deprived of due process of law or equal protection of law as guaranteed by the Constitutions of the United States and of the Commonwealth of Pennsylvania when he is not permitted to proceed and obtain a divorce on behalf of the missing wife and when the husband enjoys the present ability to obtain a divorce despite the absence of the missing wife?

Appellant’s Brief at 3. We affirm the order of the trial court.

A brief review of the facts and procedural posture of the instant case is necessary. Donald Groomes (“husband”) and Ada Jane Groomes (“wife”) were married on July 15, 1953 and separated on April 2, 1986. On June 5, 1986 husband filed a complaint in divorce, alleging that the marriage was irretrievably broken. On September 21, 1987 the trial court issued an order directing that, “Neither [husband] nor [wife] shall hereafter sell or encumber any marital asset.” On September 6, 1988 wife filed an answer and counterclaim, admitting that the marriage was irretrievably broken and seeking a divorce on the grounds that the marriage was irretrievably broken and indignities. On October 7,1988 the whereabouts of wife became unknown and have remained so at the time of this writing. The four children of husband and wife filed a petition for the appointment of a trustee for wife. On February 1, 1989 the trial court appointed James R. Gaut, Esquire (“trustee”) as trustee durante absentia for wife.

On August 17, 1989 a substitution of record was entered; trustee, as trustee durante absentia, was substituted for wife regarding the divorce action and counterclaim. Trustee filed an inventory regarding wife’s estate. The inventory expressly noted the pending divorce litigation as well as the assets held jointly by husband and wife. The inventory indicated that there was approximately $1,000,000 worth of real and personal property involved; a portion was held as tenants by the entireties and a portion was titled solely in husband’s name. On July 31, 1990 trustee filed a petition for permission to sell motor vehicles belonging to wife. Husband filed preliminary objections and they were dismissed by the trial court, which stated that jurisdiction over permission to sell the vehicles was vested in the Orphans Court Division of the Court of Common Pleas of Westmoreland County. Husband appealed to this Court. On February 12, 1991 our Court quashed the appeal as interlocutory. Groomes v. Groomes, No. 01909 Pittsburgh 1990.

On January 11, 1991 the trustee filed, on behalf of wife, an Affidavit Under Section 201(d) of the Divorce Code. The trustee sought, on wife’s behalf, the eventual grant of a divorce. On January 25, 1991 husband filed preliminary objections in the nature of a petition to dismiss or strike the trustee’s affidavit. On August 27, 1991 the trial court issued an order granting husband’s petition to dismiss the trustee’s affidavit. The instant appeal subsequently followed. Our Court granted permission to appeal based upon the trial court’s certification, pursuant to 42 Pa.C.S. § 702(b), of the issue regarding whether or not trustee had authority to obtain a divorce on behalf of absentee-wife.

Trustee’s first claim is that the trial court erred in finding that trustee was not entitled to proceed to obtain a divorce on behalf of absentee-wife. Trustee cited to several sections of the Decedents, Estates and Fiduciaries Act, 20 Pa.C.S. §§ 101 et seq. The sections cited by trustee are as follows.

20 Pa.C.S. § 5702(a) states that when a person disappears and is absent from her last known place of residence, and the absentee’s property requires protection, the trial court may appoint a trustee to take charge of her estate. “[E]xcept as otherwise expressly provided, [the trustee] shall have the same powers, duties and liabilities in the administration of the absentee’s real and personal estate as are provided in Chapter 51 of the code [Section 5101 et seq.~\ (relating to minors). ... He shall not have the power to sell or dispose of any asset of the estate or to enter into any lease without prior court approval.” 20 Pa.C.S. § 5702(b). 20 Pa.C.S. § 5141, relating to minors, states,

The guardian of the estate of a minor ... shall have the right to take possession of, maintain and administer, each real and personal asset of the minor ... and also have the right to maintain any action with respect to such real or personal property of the minor.

Id. 20 Pa.C.S. § 5144, relating to minors, states,

The provisions concerning the powers, duties and liabilities of a guardian appointed by the court shall be the same as those set forth in this code for the administration of a decedent’s estate, with regard to the following:
(10) Compromise of controversies, as in section 3323 (relating to compromise of controversies).
(15) Inherent powers and duties, as in section 3332 (relating to inherent powers and duties).

Id. 20 Pa.C.S. § 3323 states, in pertinent part,

(a) In general.—Whenever it shall be proposed to compromise or settle any claim, whether in suit or not, by or against an estate, ... or any other controversy affecting any estate, the court, on petition by the personal representative or by any party in interest setting forth all the fact and circumstances, ... may enter a decree authorizing the compromise or settlement to be made.
(b) Pending court action.—
(1) Court order. Whenever it is desired to compromise or settle an action in which damages are sought to be recovered on behalf of an estate, any court or division thereof in which such action is pending and which has jurisdiction thereof may, ... upon petition by the personal representative of such decedent, make an order approving such compromise or settlement.

Id. at § 3323(a)(b). 20 Pa.C.S. § 3332 states, “Except as otherwise provided in this code, nothing in this code shall be construed to limit the inherent powers and duties of a personal representative.”

Our review of these statutes reveals no authority permitting trustee, as trustee durante absentia for wife, to proceed with wife’s counterclaim in divorce. Trustee also cited Syno v. Syno, 406 Pa.Super. 218, 594 A.2d 307 (1991), which held that a person who had been adjudicated incompetent could prosecute a divorce only by means of a guardian or guardian ad litem. Syno also held that the incompetent had to be “capable of exercising reasonable judgment as to personal decisions, [must have] understood the nature of the action and [was] able to express unequivocally a desire to dissolve the marriage.” Id., 406 Pa.Superior Ct. at 226, 594 A.2d at 311. Further, the incompetent had to be found “competent” to testify and able to verify the statements made in her complaint or counterclaim. Id. Syno is simply not supportive of the position taken by trustee in the instant case. Analogizing this case to Syno, the trial court in the instant case would have had to determine if wife, at the present time and not only in 1988 when she filed her counterclaim in divorce, unequivocally desired to obtain a divorce from husband. Testimony from the trustee regarding wife’s state of mind would have been unacceptable; hence, the trustee durante absentia was not entitled to proceeded with wife’s counterclaim in divorce.

We further affirm this issue based upon the August 27, 1991 trial court opinion, at pages 1-8, of the Honorable Charles E. Marker of the Court of Common Pleas of Westmoreland County.

Trustee’s second claim is that the trial court erred in failing to permit trustee, while acting in his capacity of trustee durante absentia for wife, to obtain a divorce decree, on wife’s behalf, pursuant to wife’s counterclaim in divorce; trustee avers that unless a divorce is granted, he can not “satisfy the statutorily mandated duties of his office as trustee durante absentia for” wife. Appellant’s Brief at 18. Trustee cited 20 Pa.C.S. §§ 5702(b), 5141, which were discussed in issue number one.

20 Pa.C.S. § 5702(b) grants to a trustee “the same powers, duties and liabilities in the administration of the absentee’s real and personal estate as are provided in Chapter 51 of the code [Section 5101 et seq.] (relating to minors).” 20 Pa.C.S. § 5141, relating to minors, gives the guardian of the estate of a minor “the right to take possession of, maintain and administer, each real and personal asset of the minor.” Trustee avers that he can not take possession of the assets of absentee-wife since a decree has not been entered divorcing husband and wife and there has not been an equitable distribution of the marital property.

While trustee may not be able to take possession of, maintain and administer wife’s real and personal assets since a divorce has not been granted, he has cited no authority to substantiate his claim that as trustee durante absentia he can obtain a divorce on absentee-wife’s behalf (See issue number one). Our Court can not grant to trustee the means to take possession of wife’s assets when the path he has chosen is not sanctioned by Pennsylvania statutes or caselaw. Therefore, this claim is without merit.

Trustee’s third claim is that the trial court erred in dismissing the trustee durante absentia’s Affidavit Under Section 201(d) of the Divorce Code since

the requirements of the Divorce Code[] are satisfied when an affidavit comporting with the criteria enumerated in former 23 P.S. § 201(d), now 23 Pa.C.S.A. § 3301(d), and the applicable mandates of Pennsylvania Rule of Civil Procedure 1920.42 is filed by the court[-]appointed trustee durante absentia on behalf of the counterclaim plaintiff [absentee-wife].

Appellant’s Brief at 21.

Even if the language employed in the body of the affidavit comported with the requirements of the Divorce Code and Pennsylvania Rules of Civil Procedure the trustee durante absentia was still without authority to proceed with absentee-wife’s counterclaim in divorce (See issue number one). The wrong person authorized and signed the affidavit; in the circumstances surrounding the instant case wife, rather than trustee, should have been the person who was responsible for the contents of and signed the affidavit. Therefore, this claim is without merit.

Trustee’s fourth claim, which was never raised before the trial court, is that he has been “deprived of due process of law or equal protection of law as guaranteed by the Constitutions of the United States and of the Commonwealth of Pennsylvania” since “he is not permitted to proceed and obtain a divorce on behalf of” wife, yet “husband enjoys the present ability to obtain a divorce despite the absence of the missing wife.” Appellant’s brief at 25. Trustee avers that while the trial court denied the Section 201(d) Affidavit filed by trustee on behalf of wife, the trial court “could not deny husband the right to proceed and obtain a divorce from the absentee on the same ground and under the same statute.” Id. at 26.

The interlocutory order appealed from in the instant case was certified by the trial court under 42 Pa.C.S. § 702(b). This Court has no discretion to hear an appeal from an interlocutory order which has not been authorized by law or certified pursuant to 42 Pa.C.S. § 702(b). Gingold v. Audi-NSU-Auto Union, A.G., 389 Pa.Super. 328, 567 A.2d 312 (1990).

Pursuant to section 702(b), the trial court must certify that its interlocutory order presented a “controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of the matter.” 42 Pa.Con.Stat.Ann. § 702(b). The permission of appeal from a certified order rests in the appellate court’s discretion.

Gingold v. Audi-NSU-Auto Union, A.G., supra, 389 Pa.Superior Ct. at 364, 567 A.2d at 331.

In the instant case our Court granted permission to appeal based upon the trial court’s October 17, 1991 order. The October 17, 1991 order made reference to the trial court’s October 1, 1991 order and its August 27,1991 order. See page one, n. 1 of this opinion. The substance of the aforementioned orders was that the trial court determined that trustee had no authority to obtain a divorce on behalf of absentee-wife. Hence, this is the issue that the trial court certified under 42 Pa.C.S. § 702(b) and this is the issue that our Court determined would be addressed in the instant appeal.

Trustee’s fourth claim, that his due process and equal protection rights have been violated since he can not proceed with the divorce action but husband theoretically could, was not raised in his Petition for Permission to Appeal to this Court and was not raised or alluded to in the order on which this appeal is based. Therefore, this Court’s order granting the Petition for Permission to Appeal does not permit review of trustee’s fourth claim. Gingold v. Audi-NSU-Auto Union, A.G., supra.

Arguendo, even if trustee’s fourth claim were properly before this Court we would have found that no cognizable issue existed. Trustee is referring to a multi-hypothetical situation: (a) If husband decided at some future time to proceed with his divorce action, (b) the trial court would permit husband’s action to proceed. Neither conjectural situation occurred and the trial court did not theorize regarding what action it would take if husband decided to proceed with his divorce action. No controversy exists; therefore, there is no issue for this Court to address.

In conclusion, we find that the trial court correctly determined that trustee had no authority to proceed with wife’s counterclaim in divorce and we affirm the order of the trial court.

Order affirmed.

      . The order stated, "And now, to wit, this 17th day of October, 1991, after consideration of the Motion for Certification of Order, it is hereby Ordered and Decreed that the Order of this Court dated August 27, 1991 and the Order of this Court dated October 1, 1991 denying Motion for Reconsideration is hereby amended to certify that the above orders involve a controlling question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from the above orders may materially advance the ultimate termination of the matter.” The trial court was certifying the prior orders pursuant to 42 Pa.C.S. § 702(b).
      The August 27, 1991 order stated, “It is Ordered ... that the Preliminary objections filed on behalf of Donald Groomes in the form of a Petition to Dismiss or Strike an Affidavit filed by James R. Gaut, Esquire, Trustee of Ada Jane Groomes, the above named defendant, under Section 201(d) of the Divorce Code, is granted and the 201(d) Affidavit is dismissed and ordered stricken off the record.”
      The October 1, 1991 order stated, “[Ajfter consideration of the Motion for Reconsideration, It is ... Ordered ... that the Order ... of September 24, 1991 is hereby vacated. The Order ... of August 27, 1991 is reinstated and the Motion for Reconsideration is hereby denied.”

      . 23 Pa.C.S. § 201 was subsequently repealed and the current statutory provision dealing with the irretrievable breakdown of a marriage is found at 23 Pa.C.S. § 3301(d).

      . If in the future a determination is made that absentee-wife is deceased then the instant divorce action will abate since subsequent to her death there would be no marital relationship to dissolve. Reese v. Reese, 351 Pa.Super. 521, 506 A.2d 471 (1986); Haviland v. Haviland, 333 Pa.Super. 162, 481 A.2d 1355 (1984). As the trial court noted, at that time the probate of wife’s estate would "proceed in accordance with the Orphans Court Rules and Statutes governing the estates of decedents.” Trial Court Opinion, 8/27/91, at 7.

      . As mentioned, supra, § 201 has been repealed and replaced with 23 Pa.C.S. § 3301.

      . 23 Pa.C.S. §§ 3101 et seq.

      . The issue was not included in trustee’s September 20, 1991 Motion ' for Reconsideration, his September 20, 1991 Motion for Certification of Order or his Petition for Permission to Appeal to this Court.


author: ROWLEY, President Judge:

text:
    609 A.2d 194
    COMMONWEALTH of Pennsylvania v. Christopher B. JARECKI, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 16, 1992.
    Filed May 19, 1992.

      Lawrence J. Hracho, Reading, for appellant.
    Charles Coleman, Asst. Dist. Atty., Reading, for Com., appellee.
    Before ROWLEY, President Judge, and OLSZEWSKI and MONTEMURO, JJ.
   ROWLEY, President Judge:

Christopher Jarecki appeals from the judgment of sentence entered against him in the Court of Common Pleas of Berks County in this criminal action. Appellant raises the following issues for our review: (1) whether the evidence was sufficient to support appellant’s convictions; (2) whether the trial court erred in denying appellant’s motion to suppress identification evidence; and (3) whether the verdicts were against the weight of the evidence. Having thoroughly reviewed the record and considered the arguments of the parties, we vacate and remand for a new trial.

The facts of the case are as follows: On October 3, 1989, a robbery occurred at the Weis Market in the Muhlenberg Shopping Center, Berks County. Linda Young, a store employee, was counting money in the office area of the store when the perpetrator approached her from behind. Ms. Young was ordered, at gunpoint, to give the robber all of the money in the office drawers and safe. A second employee, Elsie Boone, entered the office at that time. The suspect turned, pointed the gun at Ms. Boone, and fled the office. Several other employees observed the robber as he exited the building and made his escape. Three male employees pursued the robber to a nearby Ground Round restaurant parking lot. The three men observed a gray or silver Pontiac Trans-Am speeding away from the area. Approximately six hundred dollars in cash was subsequently discovered in the restaurant’s parking lot.

The witnesses described the suspect as a Caucasian male in his late twenties to early thirties, approximately 5'9" to 6' tall, with a medium build and light brown hair. He wore a blue zippered jacket, blue slacks, a white shirt, and a “Giants” baseball cap. In addition, a blue scarf covered his face so that only his eyes and the underside of his chin were visible. The witnesses also noted that the suspect ran with a limp.

One of the witnesses, Joe Giandomenico, who had pursued the robber, claimed that he saw the robber’s face without the scarf. He also claimed that the robber wore dark glasses. No other witnesses, including the two witnesses who pursued the robber with Mr. Giandomenico, saw the suspect’s entire face or claimed that the robber wore glasses. Mr. Giandomenico was also the only witness who saw the suspect enter the Trans-Am.

During the ensuing investigation, Mr. Giandomenico assisted the police in making a composite drawing of the suspect. The composite was published in a local newspaper on October 16, 1989. The newspaper article also described the suspect and the car in which he allegedly escaped. Police received two subsequent anonymous phone calls alleging that appellant fit the newspaper’s description and had access to a gray Trans-Am.

On November 13,1989, approximately six weeks after the robbery, Officer Barry Hadley took a photo display book containing seventy-five photographs to the . Weis Market. Officer Hadley had incorporated appellant’s photograph into the display. The witnesses perused the photo display collectively, and four witnesses, including Joe Giandomenico, selected appellant’s photo from the display.

Appellant was arrested and charged with robbery and related offenses. Appellant filed an Omnibus Pretrial Motion for Relief on February 15, 1990, requesting the suppression of the witnesses' identifications. A hearing was held on April 3, 1990, and the Honorable Calvin E. Smith denied appellant’s suppression motion in an opinion and order dated May 2, 1990. Following a jury trial, appellant was convicted of robbery (two counts), theft by unlawful taking, and terroristic threats. Post-verdict motions were filed and denied, and Judge Smith sentenced appellant to a total of five to ten years incarceration, plus fines. This timely appeal followed.

Appellant asserts in his first issue that the evidence was insufficient to support his convictions. Our review of appellant’s claim is limited to the following well-established standard:

In reviewing the sufficiency of the evidence, we must review the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence.

Commonwealth v. Taylor, 324 Pa.Super. 420, 424-425, 471 A.2d 1228, 1229-1230 (1984) (citations omitted). In addition,

the sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences therefrom. The effect of such a motion is to admit all the facts which the Commonwealth’s evidence tends to prove. Also, in'passing upon such a motion, all evidence actually received must be considered, whether the trial rulings therein were right or wrong.

Commonwealth v. Maldonado, 343 Pa.Super. 154, 158, 494 A.2d 402, 404 (1985) (emphasis in original) (citations omitted).

After careful consideration, we conclude that the evidence of record was sufficient to sustain appellant’s convictions. Four eyewitnesses unequivocally identified appellant at trial. In addition, appellant had access to a gray Trans-Am. On the face of the record, the evidence is sufficient and we will not arrest judgment on appellant’s convictions.

Although the evidence of record is sufficient to support appellant’s convictions, a new trial is warranted if the convictions are based on inadmissible evidence. Commonwealth v. Maybee, 429 Pa. 222, 226, 239 A.2d 332, 335 (1968). Appellant, in his second issue, asserts that the trial court erred in denying his motion to suppress the photographic identification evidence. After careful review, we conclude that the trial court erred in denying appellant’s suppression motion, and we hold that a new trial is warranted.

In reaching our determination, we have applied the following standard:

The scope of our review is limited to determining whether the factual findings of the court in the suppression hearing are supported by the record, and whether the conclusions of law drawn therefrom are correct.

Commonwealth v. Scaine, 337 Pa.Super. 72, 77, 486 A.2d 486, 488 (1984) (citing Commonwealth v. Webb, 491 Pa. 329, 332, 421 A.2d 161, 163 (1980)). “We may reverse the denial of a motion to suppress only if the [suppression] court erred in the legal conclusions drawn from its factual findings.” Commonwealth v. Blassingale, 398 Pa.Super. 379, 391, 581 A.2d 183, 188 (1990).

Although the suppression court found that several witnesses made their photographic identifications at the same time, the court determined that the identification procedure was not suggestive because the police officer cautioned the witnesses not to discuss the photographs. A review of the record, however, reveals that the witnesses did not heed the officer’s request. Rather, the witnesses discussed the photographic display in an attempt to select the robber. Given the circumstances of this case, and the manner in which the identifications took place, misidentification was highly likely. It is well established that evidence will be suppressed if, under the totality of the circumstances, the identification procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Commonwealth v. Monroe, 373 Pa.Super. 618, 622-23, 542 A.2d 113, 114-15 (1988), appeal denied, 522 Pa. 574, 559 A.2d 36 (1989) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)). Our review of the record convinces us that the circumstances surrounding the photo identification procedure make the accuracy of the identifications highly suspect. Accordingly, we conclude that the trial court erred in failing to suppress evidence of the photographic identifications at trial.

The suppression court relied on Brown v. Blackburn, 625 F.2d 35 (5th Cir.1980), as support for its conclusion that the photo identification procedure was not suggestive. We note that even if Brown supported the suppression court’s decision, we would not be bound by the decision of another jurisdiction. However, a review of Brown shows that Broivn actually supports suppression in this matter. The Fifth Circuit court recognized the potential for error in a situation where two witnesses viewed a photographic display at the same time. The court specifically noted that the witnesses should have viewed the pictures separately to mitigate the potential suggestiveness of the situation, even though no discussion took place and the second witness did not see which photograph the first witness selected.

We find that the facts of the instant case are exponentially more egregious than the facts in Brown, as the suggestiveness of the photographic identification procedure is evident from the record. Officer Hadley took the photographic display into the store and showed it to the witnesses approximately six weeks after the robbery, and at least four witnesses viewed the display at the same time. All but one of the four identifying witnesses had seen only the eyes, chin, and hair of the robber, and none of them had described the robber’s eyes as distinctive prior to the photographic identification. Furthermore, the witnesses had access to the published composite sketch prior to the identification proceeding. Joe Giandomenico, the witness who claimed to see the robber’s entire face and on whose description the composite sketch was based, was the first to select a photograph from the display. The other witnesses had the opportunity to observe Mr. Giandomenico select a photograph, thus allowing the other witnesses to infer that the robber was pictured in the display. As Mr. Giandomenico claimed to have seen the robber’s entire face and his description was the basis for the composite drawing, it is likely that the others searched the display for a person who matched the composite sketch and Mr. Giandomenico’s description, instead of relying on their own independent recollections.

In addition, the testimony at the omnibus pretrial hearing shows that the witnesses discussed the photographs as they perused the display. Officer Hadley testified that Joe Giandomenico, Linda Young, Agnes Morris, and Elsie Boone were present at the photographic display, and that the three women watched Mr. Giandomenico page through the book. (Notes of Testimony, 4/3/90, pp. 23-24.) Officer Hadley stated that he asked the witnesses not to discuss the display among themselves, but the record shows that discussion did take place among the witnesses.

The testimony of Linda Young and Agnes Morris is especially revealing. Linda Young testified that the three women watched Joe Giandomenico select appellant’s photo. She also stated that they discussed the photographs among themselves prior to selecting appellant’s photograph. One portion of her testimony at the pretrial hearing went as follows:

[Mr. Hracho]. You guys talk about [the photo display] if you saw somebody in there?
[Ms. Young]. A little bit. We looked at the pictures, we just said he’s not the one or he’s not the one and we got— I myself got it down to two and then I looked at it some more and I picked him out.
Q. Fair to say then that you and the rest of the people, you were looking at it at the same time, more or less going through the pages?
A. Yes.
Q. Okay. Anybody say anything like, does that guy look familiar? What about this guy’s hair, or something like that?
A. I would say so. We didn’t talk much. We just went back and forth, you know, just, you know, looking at them.

(N.T., 4/3/90, p. 67.) In addition, Agnes Morris gave the following testimony after she claimed that the parties discussed the photographs among themselves:

[Mr. Stevens]. Who was discussing the pictures?
[Agnes Morris], Linda and Elsie.
Q. What were they saying, do you remember?
A. I don’t remember the words.
Q. Okay. Did you participate in that discussion with them?
A. Yes, cause I was trying to pick out—
Q. Do you remember what you said, if anything, to anybody?
A. No, I don’t remember.
Q. Okay. Now, did you at that time or at any time after that identify anybody in those photographs?
A. Yes.
Q. And when was that?
A. Within a couple minutes.
Q. Were they all there together when you did that? A. Yes.
Q. You mean Elsie and Agnes were still there.
A. Elsie and Linda.
Q. Whoever it was.
A. Yes.
Q. And what did you say.
A. I don’t remember.
Q. Well, how—
A. I remember pointing to a picture, saying those are the eyes.
Q. Yes? Who did you say that to?
A. To general [sic], to whoever who was there [sic]. Q. The two women and Officer Hadley.
A. Yes.

(N.T., 4/3/90, pp. 131-132.)

In light of the above , testimony, and other testimony of record, we are persuaded that the photo identification procedure was highly suggestive and that any reference to the photographic identifications should have been suppressed at trial. Of the witnesses who selected appellant’s photograph from the display, only Joe Giandomenico claimed to have seen the robber’s face. The other three witnesses saw only the robber’s eyes and the underside of his chin. Although all three of these women testified that their identification at the photographic display was based on appellant’s distinctive eyes, none of these women claimed that the robber’s eyes were distinctive at the time of their initial description, nor did they know their color or shape. The photo identification took place six weeks after the robbery, the witnesses saw only a small portion of appellant’s face, and the witnesses were not unequivocal in their identifications at the time of the photographic display. The women observed Mr. Giandomenico select a photograph, and they discussed the photographs among themselves as they attempted to pick out the robber. Due to the suggestiveness of the photographic procedure, the likelihood of misidentification was extremely high.

In addition to the suggestive nature of the collective photo identification procedure, we also note that the photographic display itself was suggestive. Even a correctly conducted photographic display can lead to misidentification if a photograph is emphasized in some way. Simmons v. United States, supra. In the instant case, we have reviewed the seventy-five photographs that were contained in the display, and we observed that the background in appellant’s photograph varied from the background of the other photographs in the display. Also, the other photographs were primarily head shots, while appellant’s photograph was taken from a further distance and showed his entire torso. Finally, the date was prominently displayed in appellant’s photograph, but not in any of the other photographs. These differences emphasized appellant’s photograph, and the differences increased the risk of misidentification.

The witness testimony at appellant’s trial includes references to the photographic display. As noted, that was error. Furthermore, we cannot conclude that the error is harmless, as the jury verdict may have been affected by evidence of the photographic identifications. Accordingly, we hold that any evidence or testimony which refers to the photographic display or identifications must be suppressed on remand.

Although we conclude that the photographic identification procedure was unduly suggestive and that reference to it at trial constituted prejudicial error, that fact does not necessarily undermine the reliability of a subsequent in-court identification at appellant’s retrial. The Pennsylvania Supreme Court discussed the reliability of identifications in Commonwealth v. McGaghey, 510 Pa. 225, 507 A.2d 357 (1986), and noted the factors to consider in determining whether the suggestive procedure taints the reliability of a subsequent in-court identification. The Court stated:

The problem with an impermissible suggestive identification is the potential for misidentification, resulting in a due process violation if that identification is admitted at trial. Suggestiveness alone will not forbid the use of an identification, if the reliability of a subsequent identification can be sustained. To do so, the Commonwealth must establish that the in-court identification resulted from the criminal act and not the suggestive encounter.
Most recently, in Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1985), we reiterated the necessary factors in determining whether a victim had an independent basis for an in-court identification:
... the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Commonwealth v. McGaghey, supra, 510 Pa. at 228, 507 A.2d at 359 (citations omitted) (emphasis added). The trial court can determine that an in-court identification is admissible if, under the totality of the circumstances, the trial court finds “that the in-court identification had an independent origin ‘sufficiently distinguishable to be purged of the primary taint’.” Commonwealth v. Buehl, 510 Pa. 363, 385, 508 A.2d 1167, 1178 (1986), quoting Commonwealth v. Ransome, 485 Pa. 490, 497, 402 A.2d 1379, 1383. In the instant case, identifications that the trial court determines have an independent basis, untainted by the suggestive photographic display, may be admissible.

We note that the trial court determined in its findings of fact and conclusions of law that Linda Young formed the basis of her identification at the time of the robbery, and therefore she had an independent basis for her identification. We also note that Linda Young did not refer to the photographic display on direct examination. As the trial court did not find that the photographic display was suggestive, the court never reached the issue of whether the suggestive display irreparably tainted any subsequent in-court identifications by Joe Giandomenico, Agnes Morris, or Elsie Boone. Once any reference to the photographic display is removed from the testimony of these three witnesses, the determination of whether any or all of these witnesses have an independent and untainted basis for an in-court identification in any subsequent proceeding is a question for the finder of fact to determine on remand.

For the foregoing reasons, we vacate and remand for a new trial at which any reference to the photographic display shall be suppressed.

Judgment of sentence vacated. Remanded for further proceedings consistent with this determination. Jurisdiction relinquished.

      . We note that the record does not contain a trial court opinion in support of the denial of appellant's motions for a new trial and/or in arrest of judgment, as required by Pa.R.A.P.1925. However, we have determined that the record has provided us with adequate information to conduct an effective appellate review of the issues.

      . Appellant has directed us to several other federal cases which address the suggestiveness of a mutual photo identification. (Appellant’s brief at 13.) Although we are not bound by these determinations, we do note that these cases are consistent with our determination that the photographic identification procedure in the instant case was suggestive. See U.S. v. Bagley, 765 F.2d 836, (9th Cir.1985), cert. denied, 475 U.S. 1023, 106 S.Ct. 1215, 89 L.Ed.2d 326 (1986) (joint confrontation is a disapproved identification procedure; better procedure is to keep witnesses apart when they view photographic displays); see also Rudd v. State of Florida, 477 F.2d 805 (5th Cir.1973); accord Brown v. Blackburn, 625 F.2d 35 (5th Cir.1980) (collective photographic displays can be mutually reinforcing and must be evaluated on a case by case basis).

      . We also note that Mr. Hracho asked her the following question on cross-examination:
      Q. But the day of this photo line-up you and Elsie and Linda sure standing around, let’s face it, everyone is saying, what about this guy’s hair, this kind of thing? Is that what was going on? You’re talking about it as you were going through the pages?
      (N.T., 4/3/90, p. 134.) Her affirmative answer further supports our finding that the discussions between the witnesses contributed to the suggestiveness of the identification procedure.

      . In fact, each of the three female witnesses stated the relative certainty with which she selected appellant’s photograph:
      Linda Young— 60% certain
      Agnes Morris— 65% certain
      Elsie Boone— 70% certain

      . In fact, Linda Young was not asked about the photographic display until counsel for appellant questioned her on cross-examination. However, appellant’s earlier motion to suppress the photographic identifications had been denied. In addition, we note that Officer Hadley testified about the photographic display prior to Linda Young’s testimony. Accordingly, it was arguably good defense strategy for counsel to attempt to undermine Linda Young’s credibility by revealing the uncertainty of her photographic identification and the potentially suggestive nature of the collective photographic display.

      . Appellant also asserts that the verdicts are against the weight of the evidence. Our review of a challenge to the weight of the evidence is limited to the following standard:
      A motion for a new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion. The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

        Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984) (citations omitted). Given our determination that appellant’s second issue warrants a new trial, we need not address the merits of appellant’s weight of the evidence claim. However, we note that given our standard of review, we are unable to conclude that the verdict at trial was against the weight of the evidence presented to the jury in light of the record we have before us.


text:
    609 A.2d 200
    COMMONWEALTH of Pennsylvania v. Angel L. ROSA, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 30, 1992.
    Filed June 3, 1992.

      Jeffrey M. Kolansky, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from judgment of sentence for possession of a controlled substance and possession with intent to deliver a controlled substance. Appellant raises the following issues on appeal:

1. Whether the Commonwealth violated the Rules of Discovery by failing to furnish the defense with mandatory discovery until the trial date?
2. Whether the Trial Court abused its discretion when it refused to grant the defense a continuance to prepare for trial after receiving discovery on the day of trial?
3. Whether prior counsel was ineffective for failing to file and argue post verdict motions raising therein the above issues?

Appellant’s Brief at 3. For the following reasons, we affirm.

The trial evidence established that on November 13, 1990, two undercover police officers observed a white male approach appellant, who was standing on a street comer. After a brief conversation, the man handed appellant cash, and appellant reached into a brown paper bag and handed the man two packets. The officers immediately got out of their unmarked car. Appellant discarded the brown paper bag and ran away. The officers arrested the man and proceeded to search him. They found two green packets containing a substance that appeared to be cocaine. They also recovered eight similar green packets from the abandoned paper bag. The officers then caught up with appellant and arrested him.

A nonjury trial was conducted on May 7, 1991, at the conclusion of which appellant was convicted of possession and possession with intent to deliver a controlled substance. No post-verdict motions were filed. Appellant was sentenced to one-to-two years incarceration and ordered to pay a $5,000.00 fine. This timely appeal followed.

Appellant presents three issues for our review. However, because appellant did not preserve his first two issues by raising them in post-verdict motions, they are waived. Pa.R.Crim.P. 1123(a). See also Commonwealth v. Parker, 494 Pa. 196, 200, 431 A.2d 216, 218 (1981). Thus, we will only consider appellant’s last issue—whether trial counsel was ineffective for failing to preserve the first two issues by raising them in post-verdict motions.

Initially, we note that trial counsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 975 (1987) (citation omitted); Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984) (citation omitted). To prevail on a claim of ineffectiveness, appellant must show that his underlying contention possesses arguable merit, that the course chosen by counsel had no reasonable basis designed to serve his client’s interests, and that counsel’s conduct prejudiced appellant. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). With this standard in mind, we now proceed to consider appellant’s claims.

Appellant contends that trial counsel was ineffective for not challenging in post-verdict motions the Commonwealth’s failure to furnish any discovery to the defense until the date of the suppression hearing. Specifically, he alleges that at the time the bills of information were filed, on December 11, 1990, the Commonwealth did not furnish any discovery to the defense. He claims that “[t]rial counsel later sent the District Attorney’s Office a letter requesting all discoverable materials pursuant to Rule 305 of the Rules of Criminal Procedure” and that the Commonwealth ignored this request. Appellant’s Brief at 4. Finally, on January 10,1991, defense counsel filed an omnibus pre-trial motion, in which he requested all pre-trial discovery pursuant to Pa.R.Crim.P. 305. The Commonwealth complied with this request at the suppression hearing, which was conducted three weeks later on January 31, 1991.

Appellant moved to have the Commonwealth prohibited from introducing any of these materials into evidence at that hearing. The suppression court denied this request, as well as the subsequent request for a continuance. However, the court did grant a recess so that defense counsel could review the discovery materials. Appellant now argues that the Commonwealth violated Rule 305 because, by its failure to comply with his discovery request until the day of the suppression hearing, appellant’s attorney was placed in the disadvantageous position of having to conduct the hearing without having adequate time to review what was contained in the discovery materials. First, we must determine whether this claim has arguable merit.

Rule 305 of the Pennsylvania Rules of Criminal Procedure details thé discovery materials to which a defendant is entitled, both as a matter of right and at the discretion of the court. The language of the rule does not address the issue of timeliness. However, the Comment to the rule provides that the purpose of the broad discovery rights granted by Rule 305 is, inter alia “(i) to promote an expeditious as well as fair determination of the charges, whether by plea or trial; (ii) to provide the accused sufficient information to make an informed plea; [and] (iii) to permit thorough preparation for trial and minimize surprise at trial.” Pa.R.Crim.P. 305, Comment, at 220.

In the instant case, the trial court did not find that the Commonwealth violated Rule 305 by its three-week delay in responding to appellant’s discovery request. Furthermore, our research reveals no case squarely addressing the issue of what constitutes timely compliance with a Rule 305 request. However, a review of appellant’s pre-trial motion, in which he made his discovery request, shows that it is an almost verbatim recitation of Rule 305(B). We are not prepared to say that the Commonwealth, by taking three weeks to comply with such a general and broad request, violated Rule 305. Thus, appellant’s claim of a discovery rule violation is without arguable merit. Accordingly, appellant’s contention that his trial counsel was ineffective for failing to raise this claim in post-verdict motions must fail, as counsel will not be deemed ineffective for failing to pursue a meritless claim. Commonwealth v. Woods, 394 Pa.Super. 223, 232, 575 A.2d 601, 606 (1990) (citation omitted).

Appellant also contends that trial counsel was ineffective for failing to allege in post-verdict motions that the suppression court erred by denying his motion for a continuance. Rule 305(E) provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

When a discovery violation occurs, the court has very broad discretion in choosing an appropriate remedy. Commonwealth v. Feflie, 398 Pa.Super. 622, 635, 581 A.2d 636, 643 (1990) (citations omitted), appeal denied, 528 Pa. 621, 597 A.2d 1151 (1991); Commonwealth v. Gordon, 364 Pa.Super. 521, 540, 528 A.2d 631, 641 (1987) (citations omitted), appeal denied, 517 Pa. 621, 538 A.2d 875 (1987); Commonwealth v. Cason, 328 Pa.Super. 326, 331, 476 A.2d 1353, 1356 (1984). Moreover, “a defendant seeking relief from tardy disclosure under the rule still must demonstrate prejudice.” Gordon, supra, 364 Pa.Super. at 530, 528 A.2d at 635 (citing Commonwealth v. Rodgers, 500 Pa. 405, 456 A.2d 1352 (1983)). Generally, a short continuance is deemed sufficient to eradicate possible prejudice and enable the defendant to assimilate the new information. See Feflie, supra, 398 Pa.Super. at 635, 581 A.2d at 643; Commonwealth v. Woodell, 344 Pa.Super. 487, 491, 496 A.2d 1210, 1212 (1985).

In the instant case, even if the Commonwealth’s three-week delay was a violation of Rule 305, we cannot say that the suppression court was outside its discretion in denying defense counsel’s motion to prohibit the Commonwealth from using the material at the hearing and his motion for a continuance. The suppression court concluded that a recess of the proceedings was sufficient to avoid prejudice. Appellant’s trial counsel had an opportunity to review the materials briefly before continuing with the hearing. Following the recess, counsel gave no indication that he needed more time to review the materials. N.T., January 31, 1991, at 5.

Finally, appellant has not demonstrated, as he must when asserting a claim for tardy disclosure, that he was prejudiced by the Commonwealth’s turning over the materials at the hearing. The only witnesses who testified at the suppression hearing were the two arresting officers. These officers testified previously at the preliminary hearing conducted on November 20, 1990. Defense counsel had already heard the officers’ sworn testimony and had an opportunity to cross-examine them. Thus, appellant’s claim that the suppression court abused its discretion by denying his counsel’s motion for a continuance is also without arguable merit, and counsel was not ineffective for failing to raise it in post-verdict motions. Woods, supra, 394 Pa.Super. at 232, 575 A.2d at 606. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 35 Pa.C.S.A. § 780-113(a)(16).

      . 35 Pa.C.S.A. § 780-113(a)(30).

      . We note that appellant was fully informed of his right to file post-verdict motions and the consequences for failing to do so. See N.T., May 7, 1991, at 38-39.

      . We note that the Commonwealth states that it has no such letter in its files. See Commonwealth’s Brief at 2-3 n. 2. Furthermore, no copy of this letter is included in the official record before this court. Thus, we may not consider in our analysis appellant’s allegation of a letter dated some time between December 11, 1990 and January 10, 1991 requesting discovery materials. See In re D.D., 409 Pa.Super. 35, 597 A.2d 648 (1991) (en banc) (no appellate review of evidence not included in certified record).

      . Rule 305 provides, in relevant part:
      Disclosure by the Commonwealth
      (1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
      (a) Any evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth;
      (b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made, which is in the possession or control of the attorney for the Commonwealth;
      (c) the defendant’s prior criminal record;
      (d) the circumstances and results of any identification of the defendant by voice, photograph, or in-person identification;
      (e) results or reports of scientific tests, expert opinion, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant, which are within the possession or control of the attorney for the Commonwealth;
      (f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence;
      (g) the transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recordings were obtained.
      (2) Discretionary with the Court: In all court cases, except as otherwise provided in Rule 263 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
      (a) the names and addresses of eyewitnesses;
      (b) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial;
      (c) all written or recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not;
      (d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interest of justice.

        Pa.R.Crim.P. 305(B).

      . We further note that while it is not clear whether the Commonwealth violated Rule 305, it is evident that appellant violated it. Rule 305 states that a "motion [seeking disclosure of discovery] shall be made within fourteen (14) days after arraignment, unless the time for filing is extended by the court.” Pa.R.Crim.P. 305(A). Here, appellant was arraigned on November 14, 1990, He filed his pre-trial motion on January 10, 1991. There is nothing in the record to show that he ever sought or received an extension from the court. Thus, appellant was approximately forty-three days late in filing his motion for discovery.


author: POPOVICH, Judge.

text:
    609 A.2d 204
    COMMONWEALTH of Pennsylvania, Appellant, v. Vernon MATTHEWS, Appellee.
    Superior Court of Pennsylvania.
    Submitted March 10, 1992.
    Filed June 5, 1992.

      Joseph H. Kleinfelter, Asst. Dist. Atty., Harrisburg, for Com., appellant.
    Francis M. Socha, Harrisburg, for appellee.
    Before POPOVICH, HUDOCK and HESTER, JJ.
   POPOVICH, Judge.

This is an interlocutory appeal from the order of the Court of Common Pleas of Dauphin County, which granted appellee’s motion in limine to exclude from trial any evidence of the controlled buy of cocaine. Herein, the Commonwealth contends that the lower court erred in granting appellee’s motion in limine. The Commonwealth asserts that evidence of the controlled buy of narcotics which occurred at appellee’s residence should be admissible to establish appellee’s “intent to deliver” the drugs which were seized during the subsequent search of his premises. We agree. Accordingly, we reverse and remand for trial.

The record reveals the following facts: On January 29, 1990, Lt. John Goshert and several, other officers of the Harrisburg Police Department executed a search warrant at the residence located at 1730 Elm Street, Harrisburg, Pennsylvania. The residence was occupied by appellee, llene Stewart, Nyree Letterlough and a three-year old child. The probable cause for issuance of the search warrant was a “controlled buy” of narcotics which occurred at the premises within the previous forty-eight hours. The confidential informant who made the purchase told Lt. Goshert that appellee sold him the drugs. The search of the premises uncovered six plastic bags of cocaine (total weight 3.33 grams), twelve plastic bags of marijuana (total weight 9.7 grams), $222.00 in cash, a large number of zip-lock plastic bags, a hand scale, an Ohaus gram balance scale and a loaded .38 caliber revolver. Appellee was present in the premises during the search and, immediately afterwards, he was arrested on charges of possession of cocaine with intent to deliver, possession of marijuana with intent to deliver and unlawful possession of drug paraphernalia.

Prior to trial, appellee filed a motion in limine which asked the court to exclude any evidence of the “controlled buy” of narcotics which took place at the premises. The Commonwealth desired to offer the evidence to demonstrate appellant’s intent to deliver, as opposed to his mere possession of the drugs for personal use. The Commonwealth planned to offer evidence of the controlled buy through the testimony of Lt. Goshert who supervised the controlled buy and a laboratory report concerning the cocaine purchased in the controlled buy. However, the Commonwealth indicated it would not identify the confidential informant who made the purchase, nor call the informant to testify at trial. Appellant, citing Commonwealth v. Washington, 393 Pa.Super. 132, 573 A.2d 1123 (1990), appeal denied 526 Pa. 634, 584 A.2d 317 (1990), argued that evidence of the controlled buy was inadmissible to prove appellant’s intent, absent at least prima facie evidence directly linking appellee to the drug sale. The lower court agreed and entered an order excluding evidence of the controlled buy. The court then certified this case for interlocutory appeal since it believed Washington, supra, was in conflict with Commonwealth v. Cardona, 316 Pa.Super. 381, 463 A.2d 11 (1983); Commonwealth v. Speaks, 351 Pa.Super. 149, 505 A.2d 310 (1986).

To understand this appeal, we must first review the decision in Washington, supra. Therein, a search warrant was executed at Joseph Washington’s apartment, and the search yielded five and three-tenths grams of marijuana, two scales, packaging material and drug paraphernalia. The warrant was issued on the basis of a controlled buy of marijuana. The confidential informant who purchased the drugs did not testify at trial, but information concerning the controlled purchase was nevertheless admitted over defense objection. This court, in reviewing Washington’s conviction for possession of marijuana with intent to deliver, determined that:

[T]he usage of the controlled buy as evidence of appellant’s intent was nonetheless improper under the circumstances of this case. The informant did not testify; the evidence shows only that a marijuana purchase may have taken place in appellant’s apartment but. not that it involved appellant himself.

Washington, 393 Pa.Superior Ct. at 137, 573 A.2d at 1125.

We then stated that the proper issue to consider when evidence of a controlled buy is offered for the purpose of showing the defendant’s intent is: “... whether there was sufficient quantum of proof linking [the defendant] with the uncharged criminal act so as to make it relevant to the question of [the defendant’s] intent.” Washington, 393 Pa.Superior Ct. at 138, 573 A.2d at 1125. We then reviewed the facts employing the following balancing analysis: “To keep sight of the underlying policy of protecting the accused of unfair prejudice, courts must balance the actual need for the other crimes evidence in the light of the issues, the evidence available to the prosecution, the convincingness of the evidence that other crimes were committed and that the accused was the actor, the strength or weakness of the other crimes evidence in supporting the issue, and the degree to which the jury will probably be roused by the evidence to over-mastering hostility. [Commonwealth v.] Hude, [256 Pa.Super. 439, 390 A.2d 183 (1978) ].” Washington, 393 Pa.Superior Ct. at 138-139, 573 A.2d at 1126.

Weighing the need for the controlled buy evidence against the convincingness of that evidence, we concluded: “Given that there was virtually nothing to link [Washington] to the controlled buy, this evidence was highly prejudicial and its admission constituted reversible error.” Washington, 393 Pa.Superior Ct. at 139-140, 573 A.2d at 1126. In making that determination, we specifically noted: 1) The police who supervised the controlled buy did not actually see . which apartment the informant entered; 2) The informant’s description of the suspect in no way matched Washington’s physical characteristics; 3) Although a police officer testified that a ten dollar bill used in the controlled buy was found in the apartment, the police did not list the bill as part of their inventory of items seized and had no record of actually matching the serial number of the seized bill to that of the controlled buy money; and 4) Appellant was not the only person who lived in the apartment where the drugs were seized.

After applying the balancing analysis set forth in Washington, supra, to the facts sub judice, we conclude that the lower court improperly granted appellee’s motion in limine. First, we must address whether the Commonwealth needs the evidence of the controlled buy to establish appellee’s intent to deliver cocaine and marijuana. Presently, there is circumstantial evidence consistent with “intent to deliver”, e.g., scales, packaging materials and a loaded handgun. See Commonwealth v. Parsons, 391 Pa.Super. 273, 570 A.2d 1328 (1990); Commonwealth v. Davis, 331 Pa.Super. 285, 480 A.2d 1035 (1984). However, since the quantity of the cocaine and marijuana might not be so great as to raise a reasonable inference of “intent to deliver”, we conclude that such evidence is needed (although not absolutely necessary) to establish appellee’s intent to deliver, See Washington, 393 Pa.Superior Ct. at 139, 573 A.2d at 1126; Commonwealth v. Bagley, 296 Pa.Super. 43, 442 A.2d 287 (1982).

Second, we must determine whether there is “a sufficient quantum of proof” linking appellant to the controlled buy so as to make it relevant to the question of appellee’s intent. After reviewing the facts sub judice, we conclude that the evidence of the controlled buy is sufficiently linked to appellee to warrant its admission. Specifically, we note the following facts: At the time of the controlled buy, Lt. Goshert actually saw the informant enter appellee’s residence. Also, an automobile registered to appellee was parked in front of the residence at the time of the transaction. The cocaine purchased during the buy was packaged in a manner similar to the drugs seized from appellee’s residence, and the chemical cutting agent used in the purchased cocaine was identical to that used in the seized cocaine. Finally, the informant specifically told Lt. Goshert that appellee was the person who sold the cocaine, and appellee was the only male resident of the premises.

Unlike the facts of Washington, supra, where the defendant’s connection to the controlled buy was tenuous at best, we find that the facts presented instantly are sufficiently necessary and reliable to tip the balance in favor of admission of the evidence of the controlled buy. Accordingly, we reverse the order excluding evidence of the controlled purchase and remand for trial.

Order reversed. Case remanded for trial. Jurisdiction relinquished.

      . The trial court granted appellee’s suppression motion and, subsequently, certified its ruling for interlocutory appellate review. The Commonwealth thereafter filed a petition for permission to appeal pursuant to Pa.R.A.P. 1311 and 42 Pa.C.S.A. § 702(b). On June 4, 1991, this court granted the Commonwealth’s petition for permission to appeal.

      . The laboratory report allegedly would show that the cocaine purchased during the controlled buy and that subsequently seized were packaged in a similar fashion and had similar chemical composition, i.e., both samples included phenylpropanolamine, an unusual cutting agent. N.T., p. 42.

      . Evidence of a controlled buy has previously been admitted to establish the defendant’s intent to deliver. See Cardona, supra; Speaks, supra. However, the issues raised herein and in Washington, supra, were neither raised nor addressed in those cases.

      . The suspect involved in the controlled purchase was described as five feet, ten inches tall and 160 pounds in weight. Washington, however, was six feet, two inches tall and weighed 210 pounds.

      . In Washington, 393 Pa.Superior Ct. at 139, 573 A.2d at 1126, we noted: "That the controlled buy evidence against [Washington] was weak is moreover demonstrated by the Commonwealth’s failure to seek a conviction or even an arrest of appellant on the charge of selling the marijuana that the informant supposedly bought. E.g., Hude, 256 Pa.Superior Ct. at 445, 390 A.2d at 186 (in which the same factor was considered).”
      Instantly, however, we do not find the fact that appellee was not charged with delivery of cocaine based on the controlled buy to be detrimental to the Commonwealth’s position. As the Commonwealth astutely reasons in its brief, “[t]o prove a case of delivery under such circumstances would invariably require testimony by the confidential informant. The whole purpose of proceeding with an application for search warrant and charging the defendant with evidence subsequently recovered is to protect the confidentiality of such informants.” Appellant’s brief, p. 11.
      The public’s interest in protecting the flow of information from informants to the police is well established. See, Speaks, 351 Pa.Superior Ct. at 159-160, 505 A.2d at 316 (collecting cases). Consequently, we will not, under the facts presented herein, weigh against the Commonwealth its decision not to disclose the identity of its informant.