author: MONTEMURO, Judge: TAMILIA, Justice,

text:
    601 A.2d 352
    Catherine M. ANDREWS v. Perry C. ANDREWS, III, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 1, 1991.
    Decided Nov. 26, 1991.
    Reargument Denied Jan. 31, 1992.

      Kathleen Dautrich, Reading, for appellant.
    Sandra Edwards Gray, Lancaster, for appellee.
    Before MONTEMURO, TAMILIA and BROSKY, JJ.
   MONTEMURO, Judge:

This is an appeal from an order vesting sole legal custody of the parties’ minor child in appellee, and reducing appellant’s joint physical custody of the child to a lesser, partial custody schedule.

The parties were married in May of 1980, and in January of 1987 the child, Kelsey, was born. At separation in September of 1989, appellee removed herself and the child from the marital home, and in December of 1989, appellee filed for divorce, including in her complaint a count requesting custody. In March of 1990, after hearings, the Master recommended that the parties share physical and legal custody of the child. A schedule adhering to this recommendation was adopted until hearings on appellee’s exceptions to the Master’s report were held in July and August of 1990. According to this arrangement, appellant received the child on Mondays, and Tuesdays, alternating Wednesdays and weekends with appellee. In October 1990, the order granting appellee primary physical and legal custody was entered, restricting appellant’s periods of custody to three hours Wednesday evening, and alternate weekends and holidays. This appeal followed.

There is no disagreement between the parties that the primary consideration in custody disputes is the best interests of the child. Rather, the controversy revolves around wherein the child’s best interests lie. In order to make such a determination, “It is clear that a custody court has an obligation to consider all relevant factors that could affect the child’s well being,” DeNillo v. DeNillo, 369 Pa.Super. 363, 367, 535 A.2d 200, 202 (1987) (emphasis added). Our task is to assess the trial court’s performance in light of this paramount concern.

In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported by the record, nor are we bound by the court’s inferences drawn from the facts. Commonwealth ex rel Spriggs v. Carson, 470 Pa. 290, 294-95, 368 A.2d 635, 637 (1977). However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has the opportunity to observe the proceedings and the demeanor of the witnesses. Id., 470 Pa. at 295, 368 A.2d at 637. Only where we find that the custody order is “manifestly unreasonable as shown by the evidence of the record ...” will an appellate court interfere with the trial court’s determination. Murphey v. Hatala, 350 Pa.Super. 433, 439, 504 A.2d 917, 920 (1986), appeal denied, 516 Pa. 634, 533 A.2d 93 (1987), citing Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934); Commonwealth ex rel Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). Therefore, unless the trial court’s ruling represents a gross abuse of discretion, we will not interfere with an order awarding custody. Commonwealth ex rel Rainford v. Cirillo, 222 Pa.Super. 591, 597-98, 296 A.2d 838, 841 (1972), quoted in Lombardo v. Lombardo, 515 Pa. 139, 148, 527 A.2d 525, 529 (1987).

Mumma v. Mumma, 380 Pa.Super. 18, 21, 550 A.2d 1341, 1343 (1988). See also, Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988); Commonwealth ex rel Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

Appellant has presented us, at least ostensibly, with ten claims, many containing subissues. However, they all, by and large convey the same assertion, that the trial court, in various respects, abused its discretion by drawing conclusions which were contradicted or unsupported by the evidence, or by misapplication of the law.

The theory central to the trial court’s finding as to the inappropriateness of joint custody is that certain unilateral actions taken by appellant were manipulative and designed to place him in a more advantageous position with regard to the litigation rather than to further his child’s best interests. Specifically, without notifying appellee, and in contradiction to appellee’s wishes, appellant placed Kelsey in a daycare facility during the days in which she was in his custody. Moreover, appellant had the child enrolled in speech therapy upon the advice of a physician other than her treating pediatrician, also against appellee’s wishes, and without her knowledge. Finally, the trial court finds negative connotations in the fact that appellant undertook to toilet train Kelsey, who had been resistant to appellee’s efforts in that direction, and failed to apprise appellee of his success. The trial court concludes that these measures were detrimental to Kelsey, and on that basis dissolved the joint custody arrangement, depriving appellant of any part in decisions regarding Kelsey’s welfare.

We find that the trial court’s major premise is unsupported by the record, and that as to the putative damage wrought upon the child by appellant’s intervention, the trial court misinterpreted the evidence on which this conclusion is based.

The guidelines for determining the propriety of a shared custody arrangement were enunciated by this court in In re Wesley J.K., 299 Pa.Super. 504, 445 A.2d 1243 (1982). The criteria established were that 1) both parents must be “fit,” that is, “sane and capable of making rational child rearing decisions, ... willing and able to provide love and care for their children,” 299 Pa.Superior Ct. at 515, 445 A.2d at 1248; 2) both parents must evidence a continuing desire for active involvement in the child’s life; 3) both parents must be recognized by the child as sources of security and love; 4) a minimal degree of cooperation between the parents must be possible. Id. In the trial court’s estimation, this last criterion is seen as the insurmountable obstacle to a shared custody arrangement.

In having Kelsey tested for speech developmental problems and enrolled in speech therapy, the situation which appellant unilaterally moved to correct involved a three and a half year old whose verbal ability, according to the expert who performed the testing, and whose qualifications were not contested by appellee, had progressed no further than that of a child less than two years old. Kelsey was unable even to say her own name, and could articulate no more than two short words in succession. Those words she could say were difficult to understand. The expert testified that a problem such as the one Kelsey presented could cause difficulties in interaction with other children, resulting in ostracism or ridicule, hence the prescription that therapy be instituted as early as possible. Moreover, the expert testified that a standard recommendation for children in speech therapy is enrollment in some sort of preschool or development center to enable them “to observe the language skills they should be achieving ... and to imitate the language skills in a nonpressure situation.” (N.T. 7-12-90 at 204).

When retested after two months of therapy, Kelsey’s speech showed a marked improvement, one noted by appel-lee (Id. at 90 at 105), and by Mrs. Pennypacker, the child’s grandmother, and a major contributor to Kelsey’s care. (Id. at 126) Despite appellee’s lack of involvement in the initiation of therapy, both parties agreed to Kelsey’s continuation in the program, primarily because of its evident benefits. Moreover, the trial court directed that following the hearing, Kelsey be retested, and specified both the analyst and the venue of reevaluation. The conclusions drawn by this expert mirrored exactly those measures undertaken by appellant, and recommended continuation of the program already begun. (See, Speech-Language Evaluation Report of 7-27-90 performed by Jane F. Meyers, M.S., at 4.) It is difficult for this court to accept, in view of this improvement and of appellee’s acquiescence in the treatment, that appellant’s actions can be viewed only as measures designed to improve his position in litigation, or as a means of avenging himself on appellee. The trial court acknowledged appellant’s testimony that he failed to inform appellee of Kelsey’s enrollment in speech therapy because he believed appellee would be angry if she found out and, in fact, she was angry when he told her. Despite this explanation, the court nevertheless concluded that appellant’s behavior was somehow motivated solely out of his hostility and bitterness toward appellee.

The daycare is similar in its implications. At the suggestion of Dr. Hanna, the referring physician for speech therapy, appellant enrolled Kelsey in a daycare center two to three days a week to assist with the speech problem and to provide the child social interaction with and opportunities to observe children her own age. Up until this point, Kelsey spent most of her time in the company of adults. Although appellant initially failed to inform appel-lee that Kelsey was attending the daycare center because appellee was opposed to the idea, appellee agreed to the continuation of Kelsey’s attendance at the preschool, given the rapid improvement in Kelsey’s speech and the speech pathologist’s recommendation of Kelsey’s continued enrollment in the program. The daycare placement, like the speech therapy, was regarded by appellee as having a positive result (N.T. 7-12-90 at 67), and one which she would possibly have agreed to had she been consulted {Id. at 63). Moreover, appellee stated that she intended to continue Kelsey’s enrollment under the then present schedule, that is, two or three half-days per week. {Id. at 70)

The final outrage, as the trial court sees it, is appellant’s success in toilet training the child and his failure to apprise appellee of the child’s progress. It is to this dereliction that the court attributes the confusion the child was said by the examining psychologist to evidence. We would first note that despite the confusion, whether or not it stems from the parties’ differing ability to accomplish anything in this area, the court's expert was clear that Kelsey was a normal, basically healthy child (N.T. 8-23-90 at 12), an assessment shared by appellee (N.T. 7-12-90 at 54), and the child’s grandmother (Id. at 114, 118). The confusion, which the trial court implies was due to appellant’s subversion of appellee’s efforts, was attributed by the expert to the very different styles evidenced by the parties in managing the child. However, there was testimony to the effect that the same result could occur in intact families with the same personality differences. (N.T. 8-23-90 at 52) Despite these differences, and the animus demonstrated by the parties toward each other, shared legal custody was recommended by the court’s chosen expert in this case because both parties were seen as rational and intelligent (Id. at 21), and the continuation of shared physical custody was seen as important for continuity and consistency. (Id. at 73) Nowhere in the record was there evidence that appellant was systematically attempting to “destroy the Mother/Child relationship by his unilateral acts.” (T.C.O. at 25)

Given the advancements made by Kelsey due to appellant’s involvement of professional help, we must disagree with the trial court that appellant’s actions regarding speech therapy, daycare and toilet training derived from appellant’s anger and hostility and were merely “manipulation[s] of a child through a pattern of secrets,” (T.C.O. at 21), and that they are causing harm to the child. On the contrary, these activities were instituted in view of the child’s best interests. The court’s conclusions both as to appellant’s motives, and the resultant deleterious effect upon the child are simply preposterous and unsupported by the record.

Further, we find that the trial court erred in attributing the lack of cooperation between the parties to appellant alone. Appellant initially sought appellee’s agreement to enroll Kelsey in the preschool, but appellee, after participating in the initial preplacement interview, (N.T. 7-12-90 at 88) absolutely refused to give her approval. Appellant therefore kept Kelsey’s involvement in these beneficial activities a secret from appellee because appellee would not have allowed them to take place. From our reading of the record, appellee, rather than appellant, was less than cooperative in promoting Kelsey’s best interests. The child undoubtedly needed professional help in an area which appellee herself recognized as requiring medical intervention (Id. at 104), yet appellee remained adamant in her position that Kelsey had no problem necessitating such attention. Appellee only acquiesced in Kelsey’s continued enrollment in speech therapy and daycare after someone else had taken the initiative in seeking help, and the help had proven beneficial. We do not believe that appellant should be “punished” for his concern over the child’s welfare by depriving him of joint custody of Kelsey, particularly where his activities were of demonstrable and acknowledged benefit.

In this instance, the trial court would have been better advised to continue the schedule to which the child had become, in appellee’s own words, very well adjusted (Id. at 54) and which the court appointed experts recommended be continued, and to order the parties to share the decision-making process. That they are capable of such cooperation is clear from the occurrences subsequent to appellant’s actions.

Finally, appellant complains that the trial court erred in excluding all evidence concerning appellee’s paramour, one Luke Whitman, who, according to the testimony of both appellee and her mother spends nearly every evening between approximately 6 p.m. and 11 p.m. at appellee’s residence, and accompanies appellee and Kelsey on family outings. (Id. at 77, 122) The child also calls this person “Luke-daddy,” although appellee testified that she did not tell Kelsey to use this form of address. In Bucci v. Bucci, 351 Pa.Super. 457, 506 A.2d 438 (1986), we stated that where inquiry is being made into the child’s best interests for purposes of custody determinations, “It is in the child’s best interest to preserve and nurture those relationships which are meaningful, while avoiding situations which might prove harmful.” Id., 351 Pa.Superior Ct. at 460, 506 A.2d 439. As this individual clearly spends a significant amount of time in Kelsey’s presence, his effect upon her is a factor in determining the award of custody herein. As we have already stated, the court is obligated to consider “all relevant factors” DeNillo v. DeNillo, supra, in making its decision. Clearly, the character and habits of a man with whom Kelsey has almost daily contact in her own home bear upon whether proximity to this person is in the child’s best interests. The trial court, in finding such information irrelevant, and a psychological evaluation unnecessary erred.

For the foregoing reasons, we reverse the custody order and remand for proceedings consistent with this memorandum.

Reversed and remanded. Jurisdiction relinquished.

TAMILIA, Justice,

concurring and dissenting:

I dissent to the holding of the majority which reversed the decision of the trial judge because I believe it ignores the importance of giving great weight to the trial judge’s findings unless there has been a substantial abuse of discretion. The central focus of this trial and holding is the best interest of the child as it relates to the wisdom or propriety of retaining a shared custody arrangement. Assuming, without accepting, the interpretation of the majority that the child benefits from the unilateral actions of the father, it still does not necessarily follow that shared custody is the appropriate award in this case. Best interest does not always relate to immediate improvements in the child’s condition and the courts have never been reluctant to subject best interest to a higher requirement that in the process, fundamental rights and fair play not be sacrificed to apparent best interest.

A few examples of the subjection of best interest to a prior mandate of superior rights is illustrated in the following cases. In In re Rinker, 180 Pa.Super. 143, 117 A.2d 780 (1955), and In re Rose, 161 Pa.Super. 204, 54 A.2d 297 (1947), this Court declared that the best interest of the child did not permit the state to take children from the poor and place them with the rich despite the improvement in their condition that would result. The Juvenile Act has carved out this precept in determining a need to establish first, neglect or deprivation, and secondly, a clear necessity to remove the child before the court may consider best interest. See Rose, supra; In interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976). In recent times, the United States Supreme Court has ruled that despite a trial court finding that a child would suffer by living in a black community with his white mother and black stepfather, racially based concerns cannot be considered in determining what is in the best interest of the child. Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984). In Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987), we held the custodian, who was not the natural mother, despite bonding with the children and caring for them for several years, could not defeat the right of the mother to assume custody. Best interest does not always appertain to immediate better treatment and care when viewed with relation to the permanent welfare of the child. It likewise cannot be argued that a parent who becomes a self-appointed custodian through child snatching automatically acquires preferential rights by isolating and alienating the child from the other parent, no matter how well the child appears to do under the meretricious arrangement. The entire Uniform Child Custody Jurisdiction Act, 23 Pa.C.S. § 5341 et seq., is directed at preventing this insidious and usually vicious practice. In essence, the law and the courts should not reward parents who unilaterally and willfully conduct themselves in such a manner that the other parent is deprived of the opportunity to be involved in the parenting process, even when the result is sometimes apparently beneficial to the child. Even if all the benefits which the majority claims to have accrued to the child by virtue of the father’s unilateral actions are true, this does not mean this child’s future is going to be a happy and productive one. It is also not an acceptable, logical conclusion that because the father has forced some beneficial actions unilaterally that shared custody is appropriate.

Shared custody as it finally has evolved in Pennsylvania cannot be justified on this record because the fundamental requirements for awarding shared custody have been violated blatantly by the father. It is also not appropriate for this Court to second guess the trial judge in his determination that the father took unilateral action without the approval of the court and did so to improve his position vis-a-vis the mother. The requirements of In re Wesley J.K., 299 Pa.Super. 504, 445 A.2d 1243 (1982), have not been met, and to tell the trial court that in following Wesley it has violated the requirements for an appropriate shared child custody award is to rewrite the law and impose a totally new standard. The majority informs the domestic relations legal community that to win a shared custody award one need only unilaterally and secretively engage in practices and programs which may appear to have some benefit to the child. Following the majority analysis, the best interest would then require shared custody be awarded to the dominating parent. This should not be the message we impart to the volatile field of custody jurisprudence.

This Court would serve family law better in this case by supporting judicial action which, while recognizing, accepting and perpetuating whatever benefits to the child resulted from the father’s actions, condemns improper means of achieving them and supervises the child’s custody and developmental progress to assure continued stability. The path chosen by the majority will result in more acrimonious legal entanglements which will create more serious problems in the child’s future.

The following excerpts from the trial court’s Opinion clearly establish the appropriateness of his decision.

—Dr. Carabello, child’s pediatrician and family friend, had advised parents not to enter the child in speech therapy until at least age permit her own speech patterns to develop. Right or wrong the mother was acting pursuant to medical advice. The father took child to another doctor, a rehabilitation institute, and entered her in speech therapy, without any of these outside resources contacting the mother or Dr. Carabello. (Slip Op., Ludgate, J., 10/24/90, p. 4.) Mother received no information concerning the child’s enrollment in speech therapy until her attorney requested it.

—Dr. Carabello testified ten hours per day at the day care center was excessive for a three year old child, considering kindergarten is only four hours, morning or afternoon, for children five to six years of age. Even after the mother was informed of enrollment in day care, she could obtain no information from the center. (Slip op. p. 4.)

—Mother is the primary caretaker, has a flexible work schedule, nursed the baby and her work permits her to spend hours at a time with Kelsey. (Slip op. p. 5.)

—Employee of the Treasury Child Development Center had been informed by father not to tell the mother Kelsey had been enrolled and she did not do so. The speech therapist of Reading Rehabilitative Hospital testified their efforts appeared to be directed toward better articulation and expression and she did not appear to have any under-developmental problems. She also testified she did not inquire of the mother even after receiving a letter from the attorney. (Slip op. pp. 10-11.) This creates serious concerns because speech problems in young children are frequently related to emotional disturbances in the child’s environment. To proceed with therapy without a family evaluation and discussion with both parents about the problems appears to be wholly improper. To proceed in such therapy at age three is also subject to serious question and should have been thoroughly explored within the court setting.

—A baby-sitter, Dorothy Maxwell, testified that on at least one occasion, in June 1990, she saw the father leave the child in the house unattended but because the father returned shortly thereafter, she took no further action. (Slip op. p. 11.)

—The father testified he took unilateral and secretive action because he anticipated resistance from the mother. (Slip op. p. 16.) Yet, when the mother learned of these things, she placed the child’s best interest above her personal feelings and did not disrupt therapy, ultimately stipulating to it as the basis of the interim Order of July 12, 1990. To conceal this activity, father never confided in any progress being made in toilet training and returned the child to the mother in diapers even when diapers were not necessary. (Slip op. p. 17.) Work books for therapy in the home were never shared with the mother until August 23, 1990.

—An expert in custody evaluation, Dr. Gordon, testified the child should have a sense of permanency, and if the father continues to have the right of first refusal (to implement his own plans), it would be harmful to Kelsey because she is now suffering from confusion. Dr. Gordon also testified the parties were extremely diverse in their personalities and in their parenting style. (Slip op. p. 19.)

The trial court’s Opinion states with unwavering certainty that joint custody is not appropriate in this case and that statement is clearly supported by the evidence and his findings.

The Superior Court has stated that “[hostilities between the parents are relevant only insofar as they constitute a threat to the child or affect the child’s welfare.” Nancy E.M. v. Kenneth D.M., [316 Pa.Super. 351] 462 A.2d 1386, 1388 (Pa.Super.1983). In the instant case, the hostility and anger displayed by Perry Andrews has indeed affected Kelsey Andrews’ welfare. These affects are evidenced by Father’s unilateral actions regarding speech therapy, daycare and toilet training, as well as the confrontation between Father and Mother in which Father called Mother vulgar and demeaning names in the presence of Kelsey.
A minimal degree of cooperation between parents is an important consideration in awarding shared custody. In Re: Wesley J.K., [445 A.2d] at 1249. A review of the testimony reflects that even a minimal degree of cooperation is lacking. Prime examples of this lack of cooperation are the Father’s actions in taking Kelsey to the doctor, to the therapist, to child care and in keeping the Mother in the dark about the child’s progress in toilet training.
One of the major considerations in a joint custody Order is that the parties will be able to cooperate in promoting the child’s best interest. “The rationale behind the minimal cooperation requirement is that if the parents have total inability to make cooperative decisions relating to the child, the child will ultimately be harmed.” DeNillo v. DeNillo, 535 A.2d 200, 204 (Pa.Super.1987) (Beck, J. dissenting).
The hearing Judge must award custody to the party who had proven by a preponderance of the evidence to be superior. Murphey v. Hatala, [350 Pa.Super. 433] 504 A.2d 917, 924 (Pa.Super.1986), citing In Re: Custody of Hernandez, [249 Pa.Super. 274] 376 A.2d 648 (1977). The underlying theme in this case is one of the manipulation of a child through a pattern of secrets. The unilateral actions of the Defendant that evidence his inability to act in a cooperating manner about Kelsey [sic]. It is not a question of who has cared for the child when it is advantageous for litigation, but rather it is a question of who has cared for this child with the child’s best interests in mind.

(Slip op. pp. 20-21.)

I would affirm the decision of the trial court supported by his exhaustive and well reasoned Opinion which stated:

There is also no doubt that by the Father’s own admissions, he participated in this ongoing pattern of behavior, by making unilateral decisions regarding Kelsey’s life, irrespective of Mother’s opinions or Kelsey’s best interest. He continually put Mother in a “no win” situation and actively undermined the Mother/Child relationship. Mother’s acquiescence to his unilateral actions are not viewed by this Court as examples of a weak personality, but as one who acted to minimize the emotional trauma on her child, and as one who refused to “escalate” the war.

(Slip op. pp. 25-26.)

The court concluded, and the record supports the conclusion, the mother was cooperative and supportive of actions that benefited the child while the father continually struck his own course without consulting the mother. We may not set aside this judgment. See In Re Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

I would affirm the Order of the trial judge.

      . The trial court’s Opinion states that the Master’s hearing was held "pursuant to Berks County Rules of Court." Pa.R.C.P. 1920.-51(a)(2)(iii), consistent with the Divorce Code, 23 Pa.C.S.A. § 3321, prohibits the appointment of a Master to hear testimony on issues of custody or paternity. We merely note the problem, as neither party has objected to this method of proceeding.

      . Despite the parties’ agreement on this point, the Dissent would subordinate the child’s best interests to “fundamental rights and fair play." (Dissenting Opinion at 298). However, the law clearly places the child’s best interests above all other considerations, see, Commonwealth ex rel Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984), including what the Dissent terms without definition, "superior rights.” The only superior rights recognized by current jurisprudence are those of the child.

      . The one exception, which challenges the court’s exclusion of evidence concerning appellee’s paramour, will be dealt with separately.

      . We note with disapproval that appellant’s Statement of Questions Presented, which covers three full pages of his brief, is violative of Pa.R.App.P. 2116(a), which provides that the Statement "should not ordinarily exceed 15 lines” and “must never exceed one page." Moreover, in further violation, the material contained in the Statement is verbose, repetitive, and argumentative, includes dates and other particulars specifically prohibited by the Rule, and fails to include the answer of the trial court to each of appellant’s claims, which are, rather than questions, declaratory sentences.

      . The trial court, although accepting the expert’s assessment of both parties as lacking psychiatric pathology, does insist upon the description of appellant as a rigid and angry personality as the source of all difficulties here. It goes further, and suggests that appellant alone is in need of psychological counseling. These findings have no eviden-tiary support in the record.

      . The trial court notes in one instance, speaking of the testimony of the psychologist appointed by the court to evaluate the parties, that there was testimony concerning Kelsey’s inability “to articulate what her emotional home base was." (T.C.O. at 19) It was implied that this inability was the result of confusion stemming from her parent’s animosity. However, the record reveals that the expert chose not to force a choice due to Kelsey’s age, and her inability to articulate.
      In another instance the trial court states that appellant’s anger toward appellee led to his enrollment of the child in speech therapy, and that he tacitly encouraged her to hide her activities from her mother, stating that Kelsey "is bright enough to have known that she was not to discuss Dr. Hanna [the referring physician] or the Reading Rehabilitation Hospital [where the therapy sessions occurred] with her mother." (T.C.O. at 25) Such a statement is ludicrous in view of Kelsey’s limited verbal abilities.

      . It is noted by the trial court that appellee never obtained a second opinion of Kelsey’s language development from a speech therapist, but rather discussed the matter with a member of the Albright College Speech Therapy Department. (T.C.O. at 8) In fact appellee mailed a copy of the evaluation obtained by appellant not to a speech pathologist, but, at the suggestion of the pediatrician, to a person identified as the accounting director of the psychological services center at the college. (N.T. 7-12-90 at 98) It is to this pediatrician, who admitted that he had not the expertise even to interpret the report of the speech therapist, that the Dissent points as an adequate assessor of Kelsey’s condition.

      . Without providing authority for its conclusions either from the record or elsewhere, the Dissent has decided that proceeding with speech therapy for a child of three is subject to serious question, as is such therapy without the involvement of both parents. Nothing in the reports of either expert, or indeed in the testimony of any witness is supportive of this view.

      . Even the Dissent notes that in acquiescing to the measures taken with Kelsey, appellee, "placed the child’s best interest above her personal feelings.” (Dissenting Opinion at 299) This seems to indicate not only appellee’s obstructiveness in the face of any suggestion made by appellant, but also that the results achieved were not, as the Dissent would have it, merely conjectural.

      . The trial court, in support of its position that day care is detrimental to the child’s best interests, points to the testimony of Kelsey’s treating pediatrician, who stated that
      ‘‘a ten hour day at the day care center for a child of Kelsey’s years was pretty ambitious. He noted that public school kindergarten is usually a morning or an afternoon session for children who are 5 or 6 years old and Kelsey has not yet reached 4 years old." (T.C.O. at 4)
      Leaving aside the accuracy of the pronouncement as to public schools, Kelsey’s schedule at the daycare center consists of half-days on Mondays, Tuesdays, and alternate Wednesdays, a regime entirely consistent with the pediatrician’s views despite the Dissent’s attempt to demonstrate the opposite.

      . The Dissent finds this diversity unequivocally negative. However, mere diversity of personality type by itself, is not and has never been the basis on which to determine custody.

      . The question of appellant’s right of first refusal, that is his ability to keep Kelsey when appellee is unavailable, was, as the Dissent notes, found by the expert to have an undesirable effect on Kelsey’s sense of permanency. We see no reason to differ.

      . The Dissent notes that even assuming the benefit to the child accruing from appellant’s actions, "this does not mean this child’s future is going to be a happy and productive one." (Dissenting Opinion at 358). Unfortunately no court, nor any other human agency, can or should attempt to stand as guarantor of what is to come. However, the attempt can and must be made, through case disposition, to assure that those things are done which will provide a child with the best possible opportunities to thrive and develop normally, that is, those things which are in the child’s best interests.

      . In its opinion, the court states, "The unilateral actions of the Defendant ... evidence his inability to act in a cooperating manner about Kelsey.” (T.C.O. at 21) If we were to accept this conclusion, then any action on the part of appellant which appellee does not approve, regardless of how necessary or beneficial to Kelsey, would be interpreted as uncooperative by the court and therefore warrant revocation of his joint custody rights. The absurdity of such a result is obvious.

        . The result in this case is characterized by the Dissent as "inform[ing] the domestic relations legal community that to win a shared custody award, one need only unilaterally and secretively engage in practices and programs which may appear to have some benefit to the child.” (Dissenting Opinion at 300) This pronouncement not only distorts the factual realities involved here, but ignores the reasoning behind the conclusion. Disagreement with the outcome in a given instance should engender a reasoned, logical response. Nothing else is necessary or productive.

      . The trial court's statement to the effect that appellee indicated this manner of address was strongly discouraged is not supported by the record. (See, N.T. 7-12-90 at 77, 123)

      . The majority castigates this writer for making the above statement without supporting authority (Montemuro, J., footnote 8). The authority is my extensive experience as a trial judge in Juvenile Court in many cases in which speech problems were manifested. To the knowledge of this writer» the etiology of emotional problems in such cases and the need to involve the parents in the treatment process was unequivocally a paramount consideration by the experts and treatment of persons in alleviating the conditions. It is very likely that the speech problems resulted from the anger and hostility surrounding the custody disputes in this case.


source: Caselaw Access Project

author: CIRILLO, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    601 A.2d 361
    Michele D. EADIE v. Andrew V. BOHATCH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 12, 1991.
    Decided Jan. 7, 1992.

      James J. Nesser, Uniontown, for appellant.
    Gary J. Frankhouser, Uniontown, for appellee.
    Before CIRILLO, DEL SOLE and MONTGOMERY, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Fayette County granting summary judgment in favor of plaintiff/appellee Michele D. Eadie [Eadie] and against defendant/appellant Andrew Y. Bohatch [Bohatch]. We affirm.

Michele Eadie filed a paternity action against Andrew Bohatch, claiming he was the natural father of their son, Cory M. Eadie. Bohatch denied paternity. Eadie filed a petition to compel blood tests. See 42 Pa.C.S. § 6131 et seq. Bohatch filed an answer denying paternity and raising as new matter the claim that Eadie was precluded from pursuing the action due to the fact that she was intimately involved with several men at the same time she allegedly conceived the child with him. Thereafter, the court ordered the parties and the child to submit to blood tests pursuant to 42 Pa.C.S. § 6133. Bohatch refused to submit to the blood tests. Eadie filed a motion for summary judgment. The trial court scheduled argument on the motion. Bohatch was precluded from oral argument for failure to timely file a responsive brief to Eadie’s motion. The trial court granted summary judgment in Eadie’s favor, and the issue of paternity was resolved against Bohatch. Id. This appeal followed. Bohatch raises two questions for our review:

1. Whether the trial court erred in granting the plaintiff’s motion for summary judgment finding paternity, in that a genuine issue of material fact does exist over the parentage of the minor child, as evidenced by the pretrial statements filed by the Fayette County Domestic Relations Office naming other individuals as the father of the child?
2. Whether the trial court erred as a matter of law in granting the plaintiff’s motion for summary judgment in that the proper remedy for the defendant’s failure to submit to blood tests should have been a petition for contempt with a rule to show cause?

Bohatch concedes notice of the two scheduled blood tests. He contends, nonetheless, that he did not have to comply with the court’s order because he denied paternity in his answer to Eadie’s motion to compel blood tests, and raised in new matter that Eadie was precluded from pursuing the action due to her intimate involvement with other men at the time the child was conceived. Bohatch maintains, therefore, that the court was presented with a “genuine issue of material fact” as to the paternity issue. In the alternative, Bohatch argues that Eadie’s remedy for his failure to appear was to file a petition for contempt, not a motion for summary judgment. See 23 Pa.C.S. § 4344.

The trial court determined that the decision in Smith v. Beard, 326 Pa.Super. 95, 473 A.2d 625 (1984) was controlling. Relying upon the reasoning in Smith, the trial court held that failure to appear for the scheduled blood tests subjected Bohatch to the court’s authority to resolve the issue of paternity against him. We agree with the trial court. The fact that Bohatch answered Eadie’s motion to compel blood tests does not entitle him to shun his responsibility to comply with the trial court’s directive.

Section 6133 of Title 42 provides in part:

In any matter subject to this subchapter in which paternity, ... is a relevant fact, the court upon its own initiative ... or upon motion of any party to the action ... shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity ... against such party, or enforce its order if the rights of others and the interests of justice so require.

42 Pa.C.S. § 6133. See also 23 Pa.C.S. § 5104, infra.

In Smith, the trial court exercised its authority under this statute. On appeal, this court was presented with the appellant’s argument that no adjudication of paternity can be made except after a hearing on the merits. Smith, 326 Pa.Super. at 99, 473 A.2d at 627. The Smith court held otherwise.

The trial court in Smith ordered blood tests upon appel-lee’s motion, 42 Pa.C.S. § 6131 et seq., and appellant failed to appear on the scheduled date despite having received notice. Appellee filed a petition and rule to show cause why the issue of paternity should not be adjudicated against appellant in light of his failure to appear for the scheduled tests. Appellant did not respond to the court’s issuance of a rule to show cause. Appellee filed a motion to make the rule absolute and the appellant was subsequently adjudicated the father of the child. Smith, 326 Pa.Super. at 99, 473 A.2d at 627.

On appeal, following the entry of a support order, the appellant in Smith argued that the adjudication was in error since thére was no hearing on the merits. The Smith court disagreed and held that the procedure utilized by the appellee, petition and rule, was not objectionable. Id., 326 Pa.Superior Ct. at 100-101, 473 A.2d at 628. The court stated:

This Commonwealth’s petition practice affords a responding party with notice and an opportunity to be heard before a rule absolute is entered. The appellant simply did not avail himself of this right. As such, the lower court had before it an unanswered petition which alleged the appellant’s refusal to submit to HLA testing. The lower court was entitled to find that the appellant, in fact, refused to appear. Under 42 Pa.C.S.A. § 6133, the court could therefore “resolve the question of paternity” against the appellant.

Id. (emphasis added).

In the instant case appellee Eadie did not utilize petition and rule procedures. Instead, she filed a motion for summary judgment. Bohatch had notice and was afforded the opportunity to be heard. The trial court scheduled oral argument on the motion, and ordered both parties to file briefs. Bohatch failed to file a brief responding to Eadie’s motion for summary judgment, and thus was precluded from orally arguing his case. The court resolved the issue of paternity against Bohatch, and a final order of support was entered on October 15, 1990. See Pa.R.C.P. 1910.11(h); see also Pa.R.C.P. 1910.15(d)(2)(e), (f).

We do not discern any distinction of consequence between these procedural mechanisms. Whether proceeding by petition and rule, or motion and answer, Bohatch, had he complied with the court’s various orders, would have had the opportunity to be heard before the trial court. Bohatch simply did not avail himself of this right. Smith, supra. Nor do we place significance upon the fact that, unlike the appellant in Smith, Bohatch responded to the Eadie’s motion to compel blood tests. Furthermore, the fact that Bohatch filed a demand for a jury trial does not alter our conclusion. See Pa.R.C.P. 1910.15(b).

An unwed or alleged father “has procedural and substantive due process rights and cannot be denied access to the courts to prove or disprove his paternity....” John M. v. Paula T., 524 Pa. 306, 315-16, 571 A.2d 1380, 1385 (1990) (citations omitted). This fundamental principle and its protections have been not been discounted in this case. Bo-hatch was afforded due process, but he chose instead to ignore the court’s orders and jeopardize his right to be heard. The consequences which have befallen Bohatch are the result of his own indifference to the trial court’s directives. We cannot sanction this course of action.

Order affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I dissent from the majority decision because I do not agree that we should permit the entry of a finding of paternity against Appellant as a sanction for failing to comply with an order for blood tests. The trial court granted Appellee’s motion for Summary Judgement, following Appellant’s refusing the test. Summary judgment presupposes that there are no factual issues in dispute. However, the ultimate factual issue, namely the paternity of the child, is still very much in dispute.

The majority improperly bases its decision on Smith v. Beard, 326 Pa.Super. 95, 473 A.2d 625 (1984). Smith is clearly distinguishable, since it involved an appeal from an order of support. Prior to entry of that order, and after Smith refusal to submit to testing, a Petition for rule to show cause why he should not be determined the father was filed. Smith failed to respond to the petition, failed to proceed with any of the fact-finding processes available to challenge the requested relief and did not appeal from the determination of paternity. On appeal this court determined that Mr. Smith was afforded an opportunity to litigate the issue of paternity but ignored the process. The instant case differs drastically from the proceedings involved in Smith. Unlike Smith, Appellant did not ignore the legal procedures available to him and filed an answer to Appellee’s motion to compel blood test, in which he denied paternity. Thus, the court was presented with a genuine issue of material fact on the issue of paternity. Since a motion for summary judgment presupposes that there are no factual issues in dispute, the granting of summary judgment was therefore improper.

Section 6133 of Title 42 states that “if any party refuses to submit to such [blood] tests, the court may resolve the question of paternity ... against such party.” 42 Pa.C.S. § 6133 (emphasis added). While I do not believe that the court should utilize this provision when faced with a motion for summary judgment, the fact finder should be made aware of the provision as well as Appellant’s refusal to submit to blood testing. Refusal can be considered as evidence along with any reason given by a party in reaching a finding. The mere refusal to take a blood test, however, is not in and of itself conclusive evidence of paternity, nor should it be the basis for the granting of summary judgment.

      . The Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S. § 6131, et seq. was repealed, 1990, Dec. 19, P.L. 1240, No. 206, § 6, effective in 90 days, and reenacted at 23 Pa.C.S. § 5104.
      The Divorce Code, as enacted by Act 1980, Oct. 15, P.L. 934, No. 163, § 1, effective Jan. 1, 1981, as amended by Act 1990, Dec. 19, P.L. 1240, No. 206, effective in 90 days, is now contained in Title 23, Pennsylvania Consolidated Statutes, entitled Domestic Relations. Derivations and dispositions of the relevant statutes will be referenced throughout this opinion for clarification of the prior and subsequent history of the relevant laws.

      . Section 6133 of Title 42 gives the trial court the authority to order blood tests where paternity, parentage or identity of a child is a "relevant fact." Section 6133 also provides that if a party refuses to abide by the court’s order, "the court may resolve the issue of paternity, parentage or identity of a child against such party, ...” 42 Pa.C.S. § 6133 (Repealed. 1990, Dec. 19, P.L. 1240, no. 206, § 6, effective in 90 days). The text of section 6133 has been reenacted at 23 Pa.C.S. § 5104, 1990, Dec. 19, P.L. 1240, No. 206, § 2, effective in 90 days.

      . We note that a responsive brief to the motion for summary judgment has been reproduced in appellant’s reproduced record; however, the brief has not been included in the original record on appeal, nor is it listed in the certified copy of the docket entries. See Pa.R.A.P. 1921. This court may consider only facts which have been duly certified in the record on appeal. Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974).

      . Section 4344 of Title 23 provides:
      § 4344. Contempt for failure of obligor to appear
      A person who willfully fails or refuses to appear in response to a duly served order or other process under this chapter may, as prescribed by general rule, be adjudged in contempt. Contempt shall be punishable by any one or more of the following:
      (1) Imprisonment for a period not to exceed six months.
      (2) A fine not to exceed $500.
      (3) Probation for a period not to exceed six months.
      23 Pa.C.S. § 4344. 1985, Oct. 30, P.L. 264, No. 66, § 1, effective in 90 days. The prior statute, 42 Pa.C.S. § 6705(a), did not include the additional penalties of fine or probation, but in all other respects the two statutes are comparable. Like the current statute, section 6705(a) of Title 42 provided for contempt proceedings and a penalty for failure to appear in response to a court’s order "under this subchap-ter.” 42 Pa.C.S. § 6705. The subchapter was entitled Support Proceedings. The current statute provides for contempt proceedings and penalties for failure to appear in response to a court’s order "under this chapter,” Chapter 43, which is entitled Support Matters Generally.
      The authority for resolving the issue of paternity against a party for failure to appear for scheduled tests is found in another subchapter of Title 42, entitled Blood Tests to Determine Paternity, 42 Pa.C.S. § 6133, and another chapter of Title 23, entitled Children and Minors, 23 Pa.C.S. § 5104(c). The placement of these sections is, in this court's opinion, additional support for our resolution of the issue before us. Despite the fact that this paternity action emanated from a support action, we do not find that the legislature’s grant of authority in section 6133 (or section 5104(c)) is limited by the contempt procedures provided for in support proceedings. See 1 Pa.C.S. § 1924; see also Fedor v. Borough of Dormont, 487 Pa. 249, 409 A.2d 334 (1979) (titles and preambles of a statute may be considered in construction thereof).

      . We refer here to Eadie's motion to compel blood tests and Bohatch’s answer to the motion to compel blood tests. Bohatch's "genuine issue of material fact” language, which is language of summary judgment, is confusing in light of the fact that no answer or responsive pleading to the motion for summary judgment was filed.

      . Either party may demand a trial by jury on the issue of paternity. However, paternity is a civil action governed by the Pennsylvania Rules of Civil Procedure. See 42 Pa.C.S. § 6704(f); 23 Pa.C.S. § 4341. This right is not absolute, and we decline to hold as much. See Smith, supra. As in any civil trial, a party’s action or inaction, in particular non-compliance with court orders, may result in the entry of judgment or the determination of issues against that party. See generally Pa.R.C.P. 4019.


author: DEL SOLE, Judge:

text:
    601 A.2d 808
    COMMONWEALTH of Pennsylvania v. Albert JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 16, 1991.
    Filed Nov. 25, 1991.
    Reargument Denied Feb. 4, 1992.

      Ramy I. Djerassi, Philadelphia, for appellant.

      Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and MONTEMURO, JJ.
   DEL SOLE, Judge:

This is an appeal from a judgment of sentence imposing on Appellant Albert Jones a prison term of ten to twenty years for his convictions of robbery, criminal conspiracy, and possession of an instrument of the crime. Appellant’s appeal follows an order of the PCRA court which denied his motion for reconsideration of sentence, but granted him leave to file an appeal nunc 'pro tunc.

On April 20, 1985, Appellant and another man entered a Mr. Juice variety store in Philadelphia where the complainant, Gloria Jordan was working as a cashier. Both men wore caps, as well as pillowcases which concealed the lower portions of their faces. Appellant, who had a hand gun, told Ms. Jordan to give him all her money and then jumped over the counter, pointing the gun at Ms. Jordan’s head and forcing her to the floor. Appellant took cash and food stamps from the cash register and fled the store with his partner. Later that evening, Ms. Jordan identified Appellant after being shown a police “book” which contained mug shots. Following a jury trial, Appellant was convicted of robbery, conspiracy and possession of an instrument of the crime. Original counsel for Appellant filed post trial motions which were later argued by newly appointed counsel and denied by the court. Appellant was sentenced and his counsel filed a notice of appeal instead of a motion to reconsider sentence, failing to prepare a brief. Following the dismissal of the appeal without prejudice, Appellant filed a pro se PCRA petition and received court-appointed counsel. The court permitted Appellant to appeal nunc pro tunc on issues preserved on post trial motions, but denied Appellant’s PCRA petition for reconsideration of sentence. Appellant was not present at the hearing. Appellant was granted leave to file a direct appeal nunc pro tunc regarding the sentencing issue, and this appeal followed.

Appellant raises two issues for consideration. First, he claims that the PCRA court erred in denying his petition to reconsider and modify sentence when he allegedly was denied his right of allocution by the sentencing court. Appellant further asserts that the trial court committed additional error in allowing the jury to hear testimony concerning the complainant’s identification of Appellant from a photograph that was in the possession of the police, claiming such testimony to be prejudicial.

With regard to Appellant’s contention that he was prejudiced by the testimony that the complainant had identified Appellant from a police "book” and thereby denied a fair trial because his presumption of innocence was destroyed, we find the trial court’s denial of Appellant’s request for a mistrial to be supported by case law. Our state Supreme Court has held that:

Once ... a police photo file is used that fact can neither be denied, nor obviated. It is part of the case and we must accept the fact that there is a possible prejudice. It is here that we must rely upon the common sense of the jurors, their fairness and implacable logic that the mere possession by the police of one’s photograph does not prove a prior conviction or the present accusation.

Commonwealth v. Brown, 511 Pa. 155, 512 A.2d 596, 599 (1986).

Because there is no per se rule against the use of “mug shots” as a method of identification, Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972), the inquiry in cases such as the matter before us is whether the jury could reasonably infer from the facts presented that the accused had engaged in prior criminal conduct, resulting in prejudice to the defendant. Commonwealth v. Reiss, 503 Pa. 45, 468 A.2d 451 (1983). Here, the witness’ reference to a police “book” does not in and of itself warrant the grant of a new trial as a result of prejudice to Appellant. At no time were the police photographs referred to in a manner (e.g., “mug shots”) from which the jury reasonably could have inferred prior criminal activity on the part of Appellant. Detective Ballantine’s statement, “We used the photographs that were available to us ...” does not automatically indicate that Appellant had a prior criminal record. “Possession by the police of one’s photo does not ineluctably prove a previous conviction. At the most it proves only that the police had a photo of the defendant on file.” Commonwealth v. Brown, 511 Pa. at 161, 512 A.2d at 599. Therefore, the trial court was correct in deducing that no inference of prior criminal activity on Appellant’s part had been created, particularly in light of the fact that Appellant failed to demonstrate how such remarks actually prejudiced the outcome of his trial. We hold that Appellant’s request for a mistrial was properly denied.

In regard to Appellant’s right of allocution, Pennsylvania Rule of Criminal Procedure 1405 provides that a defendant shall, at the time of sentencing, be afforded the opportunity to make a statement in his own behalf, as well as have the sentencing judge state on the record the reasons for the sentence imposed and advise the defendant of his rights to appeal, to file motions and to be represented by counsel. This court has held in the past that:

A bare denial of the right to allocution, without evidence that appellant had something to say, will not require the vacation of an otherwise proper sentence. That which he wished to say, moreover, must be such as would likely have influenced the sentence imposed ... [t]he sentence need not be vacated in order to provide appellant an opportunity to speak if he has nothing significant to say.

Commonwealth v. Barton, 312 Pa.Super. 176, 458 A.2d 571 (1983), citing Commonwealth v. Rivera, 309 Pa.Super. 33, 454 A.2d 1067 (1982).

Thus, in the past, collateral relief was denied where a petitioner had shown merely a formal failure to comply with the rule affording a defendant the right to allocution. Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Additionally, a defendant had the burden of demonstrating what other information he would have brought to the court’s attention during his sentencing proceedings. Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984). Appellant relies on the recent holding of this state’s Supreme Court in Commonwealth v. Thomas, 520 Pa. 206, 553 A.2d 918 (1989), which upheld this court’s disposition of the same matter in Commonwealth v. Thomas, 345 Pa.Super. 211, 497 A.2d 1379 (1985). In Thomas, the defendant was denied an opportunity to address the sentencing court. This court, overturning the stringent requirements of Barton and Rivera, held that no demonstration of how the denial of allocution prejudiced the defendant was necessary, and that remand was required to allow the trial court to inform the defendant of his right to speak and to provide the defendant an opportunity to speak. Id., 345 Pa.Superior Ct. at 216, 497 A.2d at 1381. Our Supreme court specifically stated in Thomas, however, that, [t]he ruling in this case shall not be retroactively applied to any case other than the present case.” Therefore, Thomas has been interpreted by this court as being inapplicable to cases in which sentencing occurred prior to February 1, 1989, the date upon which Thomas was decided. Commonwealth v. Torres, 396 Pa.Super. 573, 579 A.2d 398 (1990). Because Appellant was sentenced on September 22, 1987, the interpretation of Pa.R.Crim.P. 1405 by the court in Thomas is inapplicable to the instant case.

Decisions of this court rendered prior to the date of Appellant’s sentencing have stressed, however, the significance of whether the sentencing court has addressed the defendant at all regarding his right to speak, or at least concerning the offense for which he is being sentenced. In Thomas, 345 Pa.Super. 211, 215, 497 A.2d 1379, 1381 (1985), this court cited its earlier decision of Commonwealth v. Brown, 342 Pa.Super. 249, 492 A.2d 745 (1985), in which it was held, en banc, that the right of allocution is important and not limited to enforcement based upon a defendant having to show how there was prejudice at the time of the sentencing. Therefore, despite the fact that counsel for the defendant in Brown had spoken at the sentencing proceeding, a remand was required because of the fact that the defendant was never asked whether he had a statement to make to the court. Id., 342 Pa.Superior Ct. at 255-256, 492 A.2d at 748. Moreover, the court stated that:

Unlike the requirement of the Opinion in Support of Affirmance that a claimed denial of one’s right to allocution is factually deficient and requires supplementation as to what one would have said had he/she been given the opportunity to speak, our Supreme Court created no such condition precedent ... Id., 342 Pa.Superior Ct. at 263, 492 A.2d at 752.

In a footnote, the court further opined that requiring a defendant to demonstrate how he has been prejudiced by a denial of his right to allocution is “... ill advised since the effort it takes for a jurist to ask the accused if he has anything to say prior to issuing sentence is minimal when contrasted to the liberty interest being decided.” 342 Pa.Superior Ct. at 263-264, 492 A.2d at 752, n. 4. The record in the instant matter does not reveal that any inquiry whatsoever was made of Appellant regarding a potential statement he may have had for the court, albeit his counsel was given the opportunity to add comments following the court’s reference to the presentence report. (N.T. 9-22-87, 19-28). Therefore, in accordance with our decisions which have adopted the reasoning of the lead opinion in Brown, see, for e.g., Commonwealth v. Thomas, 345 Pa.Super. 211, 215, 497 A.2d 1379, 1381 (1985); Commonwealth v. Polk, 347 Pa.Super. 265, 276, 500 A.2d 825, 830 (1985), we hold that a remand is necessary to afford Appellant the opportunity to exercise his right to allocution.

The order of the trial court, denying a mistrial, is affirmed. The judgment of sentence is vacated, and a remand is ordered, to permit Appellant to exercise his right to allocution during the resentencing proceeding. Jurisdiction relinquished.


author: POPOVICH, Judge:

text:
    601 A.2d 811
    COMMONWEALTH of Pennsylvania, Appellee, v. David KOTZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 21, 1991.
    Filed Jan. 2, 1992.

      Albert J. Flora, Jr., Wilkes-Barre, for appellant.
    Jerome L. Cohen, Asst. Dist. Atty., Wilkes-Barre, for Com., appellee.
    Before DEL SOLE, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

The defendant/appellant, David Kotz, seeks review of the March 18, 1991, order of the Court of Common Pleas of Luzerne County (per President Judge Patrick J. Toole) vacating, sua sponte, the judgment of sentence at Criminal Information No. 2712 of 1990. We reverse.

The facts of record reveal the following scenario: On October 24, 1990, the District Attorney of Luzerne County approved the issuance of Criminal Information No. 2712 of 1990 against the appellant charging him with aggravated assault, two counts of simple assault and recklessly endangering another person.

On January 4, 1991, the appellant pleaded guilty to one count of simple assault; all other charges were nol-prossed, with sentencing scheduled for March 1, 1991. Thereafter, by Criminal Information No. 2711 of 1990, the appellant was charged with two counts of simple assault and recklessly endangering another person. On January 17, 1991, the appellant pleaded guilty to one count of simple assault. Sentence was scheduled to coincide with the time set for the disposition of Criminal Information No. 2712 of 1990.

On the date set for sentencing, the court imposed a term of incarceration of 6 to 23V2 months at No. 2712 of 1990 and a consecutive sentence of 4 to 23V2 months imprisonment at Criminal Information No. 2711 of 1990. Following this, the appellant’s motion to modify sentence at Criminal Information No. 2712 of 1990 was denied by order dated March 11, 1991.

On March 18, 1991, a hearing was held on the appellant’s motion to withdraw his guilty plea at Criminal Information No. 2711 of 1990. At the hearing, when the appellant was asked why he sought to withdraw his plea, he responded that he was not guilty and because he was told, at the time of the plea, that he would receive probation for time served in the Luzerne County Correctional Facility in exchange for his plea of guilty. Counsel for the appellant admitted striking an agreement with the District Attorney’s office with regard to Criminal Information at No. 2712 of 1990. The same occurred,, except by different counsel, at Criminal Information No. 2711 of 1990, but, according to the assistant district attorney, in neither case did the plea call for any particular sentence, only that charges were to be nol-prossed. As is herein relevant, the following discourse transpired among the court, both counsel and the appellant:

THE COURT: Keep your mouth shut. It will do you a lot better, as far as I am concerned. You are like all your other friends. A plea was great while you thought it was going your way.
I am going to give you your chance. You go to trial on every single charge on this information and on the other. Put him on the list now, and I don’t want anybody to give him any deals. Let him get convicted of all of them and let him get a state sentence. Good luck. The motion is granted. All charges are reinstated and directed to be placed on the trial list.
* * * * * *
I will tell you, the next time, you know, think about what you say.
THE DEFENDANT: Your Honor—
THE COURT: Save your breath, save your breath for the jury, not for me. The assault is a misdemeanor three.
THE DEFENDANT: That’s the only plea—
THE COURT: No, it doesn’t work that way.
THE DEFENDANT: I was already denied for the one.
THE COURT: You go to trial on everything, everything.
MR. YEAGER [Counsel for the defendant]: Just for the record, the petition was only on 2711. 2712 was a petition to modify.
THE COURT: You can’t get both because they were sentenced together, right?
MR. YEAGER: He was sentenced—
THE COURT: Sentenced together, and that was the reason for the sentence, it was all worked out one time.
MR. YEAGER: Two separate times, Judge.
THE COURT: I will look at it in a second.
MRS. HALLENBACK: [Counsel for the Commonwealth]: He was sentenced on both on March 1.
MR. YEAGER: That’s right.
* * * * * *
MR. YEAGER: My point was—
THE COURT: My point was that the sentence in both was all done at one time, it was negotiated that way.
MR. YEAGER: The so you understand, maybe you do but I don’t, the pleas were negotiated at two separate times.
THE COURT: The sentencings were all on the basis that 2711 and 2712 went together. They don’t go together. He goes to trial on everything, everything. I am not here to play games and waste time. His negotiated plea on 2711 was ⅛ to 23 and a half months. That was only recommended.
MRS. HALLENBECK: We don’t have an agreement on that.
MR. YEAGER: Sentenced to 6 to 23 and a half months.
THE COURT: That was from his guilty plea questionnaire.
THE DEFENDANT: To run concurrent with the first one. That's what Mr. Russin—
THE COURT: Did you write that out?
THE DEFENDANT: Yes.
THE COURT: Did it say to put down all the terms? That’s not there. Have all the terms and conditions been set forth in your plea agreement? The answer is, yes.
THE DEFENDANT: That’s what he told me in this room, if I pled guilty, he’ll get it to run concurrent with 2712 and I get credit for four months on both of them.
THE COURT: Have a good time, Mr. Kotz. See if you can convince a jury.
MR. YEAGER: $10,000.00 on both or each?
THE DEFENDANT: I have already posted the bail.
THE COURT: There’s no bail. Hey, Mr. Kotz, don’t tell me your problems. I have my own. You want to withdraw your pleas, your bail was good only until the time you were sentenced and it was automatically finished.
THE DEFENDANT: I don’t want to withdraw the 2712.
THE COURT: You beat both, because that’s the basis the whole presentation was made to me when you were sentenced, and nobody is going to pick and choose, I got a good deal here, bad deal here. You are not guilty, you shouldn’t have to worry, you probably won’t be convicted.
THE DEFENDANT: I can’t get out on bail?
THE COURT: $10,000.00 bail on each.

Motion to Withdraw Guilty Plea Transcript, March 18,1991, at 4-8 (Emphasis added). By order dated March 18, 1991, the court granted the appellant’s motion “to withdraw his plea. The [appellant wa]s to stand trial on all charges in 2711 and 2712 of 1990. [The appellant] to be placed on trial list.” A timely appeal was taken from the March 18th order assailing the sua sponte withdrawal of the judgment of sentence issued at Criminal Information No. 2712 of 1990 by the court as an “engage[ment] in punitive measures designed to prohibit challenges to the validity of pleas.” Appellant’s Brief at 5. The Commonwealth and the court both attempt to justify the action taken on the ground that Criminal Informations at Nos. 2711 and 2712 of 1990 were “related” such that “if a plea in one was to be withdrawn that, under the circumstances, the plea to the other should be withdrawn as well and it was so directed.” See Lower Court Opinion at 2; Commonwealth’s Brief at 11.

Prior to inquiring into the merits of the appellant’s complaint, we need to resolve the question of whether the order appealed is final for appellate review purposes.

Under Pa.R.App.P. 311, an aggrieved litigant may perfect an appeal from certain interlocutory orders as of right. As is herein relevant, the Rule provides that an appeal may be taken as of right from “an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge_” Pa.R.App.P. 311(a)(5).

We equate the appellant’s objection to the withdrawal of his judgment of sentence and the possible necessitation of his presentment of a defense at trial, to be an assertion of the court’s commission of an error of law in sua sponte requiring him to proceed to trial where the proper disposition called for the maintenance of the status quo as to the guilty plea entered at Criminal Information No. 2712. Id. Thus, the appellant’s appeal of the March 18, 1991, order, albeit interlocutory, is properly before us for review in advance of the appellant having to endure the rigors of a trial. Cf. Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982) (Trial court’s reconsideration of a guilty verdict at post-verdict motion stage and entering not guilty decision was appealable).

Although we have found no Pennsylvania decision which discusses a sua sponte vacation of a judgment of sentence and a guilty plea, nor have any of the parties or court below cited us any case law on the subject, we believe that the precepts associated with the solemnity of a guilty plea militate against affirmance of the lower court’s actions. To-wit, when accepted and entered by a court, a plea of guilty is the equivalent of a conviction by the verdict of a jury. This is consistent with the enunciation of the United States Supreme Court in Kercheval v. United States, 274 U.S. 220, 223-224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), wherein it wrote on the subject:

A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. But, on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. Such an application does not involve any application of guilt or innocence. The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just. [Citations omitted]

Accord United States ex rel. Crosby v. Brierley, 404 F.2d 790, 793 (3rd Cir.1968). Viewed in this light, a trial judge lacks the authority to change sua sponte a defendant’s verdict (plea) of guilty. Cf. Commonwealth v. Stark, 526 Pa. 1, 584 A.2d 289, 291 (1990) (Trial court may not, during sentencing, change a previously rendered verdict of guilty to one of not guilty). This is so regardless of whether the verdict was the result of a non-jury versus a jury trial. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266, 1268 n. 5 (1977); Commonwealth v. Brown, 192 Pa.Super. 498, 162 A.2d 13 (1960). And, under established case law, a trial judge’s authority over a verdict is limited to consideration of post-verdict motions in arrest of judgment or the grant of a new trial. Stark, supra; Parker, supra. Similarly, the withdrawal of a guilty plea is initiated by application of the defendant. Kercheval, supra; Pa.R.Crim.P. 320, & 321; P.L.E. Criminal Law, § 218. Absent such an application/motion by the defendant, a guilty plea, which is spoken of in terms of a verdict of guilty, may not be removed by a trial court sua sponte. See Stark, supra; Parker, supra; cf. Commonwealth v. Walker, 460 Pa. 658, 334 A.2d 282, 284 (1975).

The court, along with the Commonwealth, attempts to justify its conduct by arguing that the sentence imposed at Criminal Information No. 2711 of 1990 was “related” to the sentence issued at Criminal Information No. 2712 of 1990, and, as such, the grant of the motion to withdraw the plea and accompanying sentence at No. 2711 of 1990 necessitated the negation of the plea and sentence at No. 2712 of 1990. We agree in part.

It is beyond cavil that the criminal courts of this jurisdiction have the power to change a sentence within 30 days after its entry, if no appeal has been taken. 42 Pa.C.S. § 5505; cf. Commonwealth v. Banmiller, 199 Pa.Super. 599, 187 A.2d 185, 191-192 (1962). Additionally, where sentences are interdependent, a (trial or appellate) court vacating one of several sentences can vacate the other sentence(s), even if its imposition is not specifically raised. The rationale is that a court, which structures its sentence on the assumption that punishment for a defendant’s conduct is best effectuated by spreading it over multiple convictions, has a right to restructure a sentencing scheme which is interlocking of several offenses and the defendant successfully obtains a reversal of one of the convictions. This position was first articulated by the Third Circuit Court of Appeals in United States v. Busic, 639 F.2d 940, 947-948 & n. 10 (3rd Cir.1981), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981) wherein it wrote in relevant part that:

In the case at bar the defendants contend that they did not appeal their section 111 convictions and the sentences imposed, and the Government did not cross-appeal. However, it is evident that the district court structured its sentence on the erroneous assumption that punishment for the defendants’ conduct could be distributed under both section 111 and section 924(c). In fact, the court imposed the heaviest punishment under section 924(c). When the defendants successfully appealed their convictions under 924(c) and obtained reversals, the court’s sentencing plan, based on the aggregate conviction for the criminal assault on the federal officers with firearms, was thwarted. In such a case, where the sentences were interdependent, we believe an appellate court, vacating one of those sentences, can vacate the other sentence even if its imposition is not specifically raised on appeal. There is nothing in the history or the policies of the Double Jeopardy Clause that justifies the denial of resen-tencing when the sentence has been spread erroneously over counts that have been declared invalid. On the other hand, resentencing under such circumstances should reduce the possibility of disparate and irrational sentencing.

Accord Kelly v. Neubert, 898 F.2d 15, 17 (3rd Cir.1990); United States v. Pimienta-Redondo, 874 F.2d 9, 12-16 (1st Cir.1989); United States v. Levy, 865 F.2d 551, 559-560 n. 5 (3rd Cir.1989); United States v. Rosen, 764 F.2d 763, 766 (11th Cir.1985).

Accordingly, under the Busic ruling of interdependent sentences entitling a court to vacate sentences not specifically raised where one has been challenged and withdrawn, the court below had the right to vacate the judgment of sentence at No. 2712 of 1990 when it granted the defendant’s motion to withdraw his plea and sentence entered at No. 2711 of 1990. This is so because the court predicated the total minimum period of incarceration to be served by the defendant under both Informations to be ten months. See Lower Court Opinion at 2. Therefore, when the plea and sentence at No. 2711 of 1990 was withdrawn, the entire sentencing plan (as applied to Nos. 2711 and 2712) was undermined and subject to rectification. Busic, supra.

However, this revamping of the sentencing scheme did not encompass a vacation of the defendant’s plea (verdict) of guilty at No. 2712 of 1990. See Stark, supra; Parker, supra. Thus, to the extent that the court vacated the plea (verdict) of guilty at No. 2712 of 1990, without a motion filed by the defendant seeking such relief, its action is a nullity and the order of March 18, 1991, is reversed in regard thereto. Nonetheless, because the court had the authority to alter the sentence at No. 2712 of 1990 as integrated with the vacated sentence at No. 2711 of 1990, we remand to avail the court the opportunity to take whatever action it deems appropriate to achieve its initially intended sentence objective, i.e., impose a new sentence at No. 2712 of 1990 to reflect the altered nature of its originally intended sentencing scheme.

Order reversed; case remanded for a procedendo made reference to herein; jurisdiction is not retained.

      . The charges filed at No. 2712 of 1990 originated with the appellant’s arrest on August 27, 1990, whereas the charges listed at No. 2711 of 1990 were brought because of the appellant’s arrest on August 29, 1990.

      . We note that in this case the question of vacation of sentences was argued before the Supreme Court. See Busic v. United States, 446 U.S. [398] at 412 n. 19, 100 S.Ct. [1747] at 1756 n. 19 [64 L.Ed.2d 381 (1980) ]. Further, we believe it is unreasonable to expect the Government in every appeal to ask appellate courts to vacate sentences on the off chance that related sentences will be voided. When a defendant challenges one of several interdependent sentences, he, in effect, challenges the entire sentencing plan. We reject the argument that vacation of the section 111 sentences is barred procedurally.

      . On remand, the court can still achieve its objective of incarcerating the defendant for a period of ten months by entering such a sentence at Criminal Information No. 2712 of 1990. See 18 Pa.C.S. §§ 1104, 2701. The court can do so without any fear of violating the appellant’s Double Jeopardy rights. See Commonwealth v. Ford, 315 Pa.Super, 241, 461 A.2d 1281 (1983); see also United States v. Busic, 639 F.2d 940 (3rd Cir.1981), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981).
      Additionally, we would note that the imposition of sentence and the motion to withdraw guilty plea at No. 2711 of 1990, which triggered the vacation of the judgment of sentence and plea at No. 2712 of 1990, all transpired within the 30-day time-frame set forth in 42 Pa.C.S. § 5505.