text:
    443 A.2d 1185
    COMMONWEALTH of Pennsylvania v. Lonnie CADOGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 12, 1981.
    Filed April 2, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Appellant contends that the evidence was insufficient to sustain his convictions, and that the lower court erred in imposing separate sentences for burglary and criminal trespass. We find that the evidence was sufficient, but that the sentences for burglary and criminal trespass merged and, accordingly, vacate the judgment of sentence for criminal trespass and affirm the others.

Appellant was convicted of burglary, criminal trespass, and conspiracy arising from an incident on November 21, 1979. Following denial of post-trial motions, the lower court sentenced him to concurrent five-year terms of probation for burglary and conspiracy, and to a suspended sentence of six to twenty-four months imprisonment for criminal trespass. This appeal followed.

When an appellant challenges the sufficiency of the evidence supporting his conviction we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and reasonable inferences upon which the factfinder could properly base its verdict, and determine whether the evidence is sufficient in law to prove every element of the crimes charged beyond a reasonable doubt. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976); Commonwealth v. Lewis, 276 Pa. Superior Ct. 451, 419 A.2d 544 (1980). Viewed in this light, the evidence indicated that on November 21, 1979, at about 11:00 a. m., Albert DiAmbrosio, while washing the second floor windows of his home, saw two men, later identified as appellant and James Spann, sitting and talking on his front steps. Mr. DiAmbrosio overheard the men planning to break into his daughter’s house across the street, and then saw Spann approach it. Appellant remained seated on the step. Spann pulled open a cellar-window grate, but returned to tell appellant, “if you see anything, whistle.” Spann went back to the daughter’s house and entered it through the cellar window. Mr. DiAmbrosio called the police, who soon arrived. When appellant saw the police, he ran, but was apprehended by an officer in a patrol car.

Appellant contends that the evidence was insufficient to sustain his convictions for conspiracy, burglary, and criminal trespass. We disagree. “The essence of every conspiracy is a common understanding, no matter how it comes into being, that a particular criminal objective be accomplished. Although the evidence must show more than mere association, ‘[a] conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed.’ ” Commonwealth v. Henderson, 249 Pa. Superior Ct. 472, 481, 378 A.2d 393, 398 (1977) (citations omitted) quoting Commonwealth v. Horvath, 187 Pa. Superior Ct. 206, 211, 144 A.2d 489, 492 (1958). Accord, Commonwealth v. Lewis, supra; Commonwealth v. Madison, 271 Pa. Superior Ct. 382, 413 A.2d 718 (1979). Appellant contends that the evidence established mere association, not conspiracy, as in Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975) (mere presence at scene of shooting and flight afterwards insufficient to establish conspiracy to murder). However, the evidence showed appellant planned the break-in with Spann, knew of his purpose, arranged a specific warning signal, and stayed in a position to be a lookout. See Commonwealth v. Carter, 271 Pa. Superior Ct. 492, 414 A.2d 361 (1979) (lookout guilty of conspiracy to rob); Commonwealth v. Peterson, 251 Pa. Superior Ct. 462, 380 A.2d 872 (1977) (getaway driver). Appellant’s flight offered additional evidence of his guilt. See Commonwealth v. Carter, supra; Commonwealth v. Madison, supra. These facts thus established appellant’s participation in the conspiracy. They were also sufficient to establish that he was an accomplice aiding in the commission of the planned crime, and thus fully liable for the burglary and criminal trespass. 18 Pa.C.S.A. § 306; Commonwealth v. Finley, 477 Pa. 382, 383 A.2d 1259 (1978) (lookout and getaway driver); Commonwealth v. Carter, supra. Accord, Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979); Commonwealth v. Roux, supra.

Appellant contends also that he may be subjected to only one sentence for his convictions for burglary and criminal trespass because they arose from only one criminal act. We agree. “[I]n merger of sentence cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be a merger and only a single sentence may be imposed.” Commonwealth v. Crocker, 280 Pa. Superior Ct. 470, 475, 421 A.2d 818, 820 (1980) (burglary and criminal trespass). See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976) (rape and statutory rape); Commonwealth v. Eberts, 282 Pa. Superior Ct. 354, 422 A.2d 1154 (1980) (robbery and reckless endangerment); Commonwealth v. Lezinsky, 264 Pa. Superior Ct. 476, 400 A.2d 184 (arson and criminal mischief). Applying these principles, we hold that the lower court erred in imposing separate sentences for burglary and criminal trespass, for in practical effect, appellant participated in but one unlawful entry. Accordingly, we vacate the judgment of sentence for criminal trespass. Because the sentence for the less serious crime of criminal trespass did not influence the sentences for burglary and conspiracy, we need not remand for resentencing. Commonwealth v. Crocker, supra; Commonwealth v. Eberts, supra.

Judgment of sentence for criminal trespass at no. 1639 is vacated. Judgments of sentence for burglary at no. 1638 and criminal conspiracy at no. 1640 are affirmed.

      . Appellant did not argue merger below. Despite that failure, however, his contention is not waived. Commonwealth v. Walker, 468 Pa. 323, 330 n.3, 362 A.2d 227, 230 n.3 (1976) (imposing multiple sentences for single criminal act is “beyond the power” of a sentencing court); Commonwealth v. Crocker, 280 Pa. Superior Ct. 470, 474 n.2, 421 A.2d 818, 820 n.2 (1980).

      . For purposes of indictment, governed by a comparison-of-the-elements test, criminal trespass is not a lesser included offense of burglary, and must be indicted separately as was done here. Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978) (scienter elements differ).

      . Burglary and conspiracy to commit burglary are felonies of the first degree. Criminal trespass is at most a felony of the second degree. 18 Pa.C.S.A. §§ 903, 3502, 3503.


source: Caselaw Access Project

author: O’KICKI, Judge:

license: Public Domain

text:
    443 A.2d 1187
    COMMONWEALTH of Pennsylvania ex rel. Betty Jane KUNKIN v. Alan BRUCK. Appeal of Betty Jane KUNKIN. COMMONWEALTH of Pennsylvania ex rel. Betty Jane KUNKIN v. Alan BRUCK, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1979.
    Filed April 2, 1982.

      Nathan L. Posner, Philadelphia, for Betty Jane Kunkin.
    Parker H. Wilson, Norristown, for Alan Bruck.
    Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       Pres. Judge Joseph F. O’Kicki, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   O’KICKI, Judge:

This appeal arises from an Order of the Court of Common Pleas of Montgomery County. Appellant and appellee were married on June 25, 1961. Two children were born, Christopher Bruck born September 2, 1963 and Matthew Bruck born February 26, 1967. The parties separated in 1970 and in 1973 appellant sued for support on behalf of herself and her two children. That petition was withdrawn upon the execution of a written property settlement agreement dated October 16, 1973, which dealt with support and other matters. The support proceeding was not terminated. Thereafter, the parties were divorced in March, 1974. Following the divorce, appellant married Leonard Kunkin. The two children reside, with their mother, the appellant.

In 1978, appellant renewed her petition for .a support order for the two boys. At the time this new complaint for support was filed, appellee was complying with the parties’ written settlement agreement by paying the sum of $165.00 per week to appellant and making additional miscellaneous payments as required by the agreement. Hearings were duly held on this complaint and on December 5, 1978, the Court below entered an order directing appellant to pay the sum of $250.00 per week for “the support of his two children ...” Continuing, the Court directed that the sum is to be “paid in accordance with the provisions of paragraph 17 of the Separation Agreement.” The Court, after consultation with counsel for both parties, vacated this order on January 4, 1979, and entered an amended order wherein appellee was again directed to pay $250.00 for support; however, reference to his two children was omitted, and the direct reference to paragraph 17 was omitted. In its place, the Court now directed that “The said sum is to be paid in accordance with the provisions of the agreement between the parties dated October 16, 1973.”

Appellant appealed on behalf of her two sons. She challenges that part of the Trial Court’s order which directs payment in accordance with the agreement and the omission of an order specifying that appellee’s payments are for the support of the two minor boys. The appellee has, thereafter, filed a cross-appeal.

Appellant objects to the Trial Court’s entry of an amended order contending that it had no authority to vacate its original order. Appellee contends, on the other hand, that this objection cannot be considered by this Court because she waived it by not raising it in the statement of matters objected to, filed pursuant to Court direction and Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. We find no merit in either of these arguments. Rule 1925(b) states, in pertinent part:

... A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of. (Emphasis ours)

As can be seen from the emphasized language alone, the appellate court has discretion in treating the failure to raise an objection as a waiver of that objection. Further, the note to that rule, in conjunction with case authority, sets out some guidelines to consider when exercising this discretion.

The note to Rule 1925 states that “subdivisions a and b of this rule . . . eliminate the blanket requirement of the prior practice for a service of a statement of matters complained of.” In addition, Commonwealth v. Crowley, 259 Pa.Super. 204, 393 A.2d 789 (1978), held that if the failure by defendant’s counsel to comply with the provisions of this rule requiring filing of a statement of matters complained of defeats effective appellate review of a given issue, then that failure should be considered a waiver of the issue; however, if failure does not defeat or even interfere with ability of the appellate court to exercise review, that failure should not be considered a waiver.

Appellant’s objection to Court authority to modify an order is purely procedural in nature. This type of question, as opposed to that dealing with substantive fact, is readily reviewable by the appellate court. Whereas a factual question clearly would entail a setting out of such an objection, so that the reviewing Court would have necessary information on the matter, which it may not be aware of without the statement of matters complained of, such information is not imperative at that stage when dealing with a question of procedure. The reviewing court can deal with a rule or statute with the same degree of effectiveness, whether raised at the earlier or later stage. Thus, since appellant’s failure to raise the objection in her statement does not defeat, or even interfere with, the appellate court’s ability to exercise review, that failure should not, and is not, considered a waiver by this Court.

However, although appellant’s objection is properly before us, we must dismiss it on the merits as urged by appellee. 42 Pa.C.S.A., Section 5505 states:

Except as otherwise provided or prescribed by law, a Court upon notice to the parties may modify or rescind any order within 80 days after its entry notwithstanding the prior termination of any term of Court, if no appeal from such order has been taken or allowed.

As is evidenced by the statute, the Trial Court clearly had the authority to vacate its original order and enter its amended order within the 30 day period.

Appellee raises a question of the Trial Court’s abuse of its discretion in the amount of the support award both in his brief and his cross-appeal. He contends that $250.00 per week was in excess of expenses, which are reasonably necessary to maintain the parties’ two minor children. Appellant, on the other hand, contends that the two boys are entitled to that support order.

The obligation of a father to support his children is universally acknowledged. It is founded both in common law and the Act of December 6, 1972, P.L. 1482, No. 334, Section 1 (18 P.S. 4322(b)); Commonwealth ex rel. Krouse, v. Krouse, 221 Pa.Super. 13, 289 A.2d 233 (1972). As provided in the above-cited Act, the Courts have the power to “order .. . such sum as said Court shall think proper for the comfortable support and maintenance of the said wife or children or both...”

Both appellant and appellee have submitted itemized expense accounts for the maintenance of the two boys. Appellant’s account totals $558.63; appellee’s totals $267.93. Although appellant’s estimate may be quite excessive, it does not affect the Trial Court’s reasoning in determining the award amount in view of the fact that appellee himself estimates the needed amount as higher than the support award order entered (i.e. $250.00 per week). Appellee came to his account estimate after a substantial modification of appellant’s figures and his figure, even so, was greater than the Court’s award. In view of this, we feel the Trial Court was in a position to evaluate the situation more clearly. “A reviewing court will overrule a Trial Court’s determination of a support order only in the event of a clear abuse of discretion. Commonwealth ex rel. Platt v. Platt, 227 Pa.Super. 423, 323 A.2d 29 (1974). When looking at the facts and figures of the case, we find no such clear abuse of discretion by the Trial Court.

The major thrust of appellant’s argument is that the order of $250.00 a week should have clearly stated that the payments were for child support rather than, as is the case, stating that the payiñents were to be made “in accordance with the provisions of the agreement between the parties dated October 16, 1973.” This provides for a combined support payment for wife and children. That portion of the combined payment which was for appellant’s benefit was alimony and taxable to her. Internal Revenue Code of 1954, Section 71(a) Act of August 16, 1954, c. 736, 68A Stat. 19, 26 U.S.C.S. Section 71. On the other hand, to the extent the $250.00 ordered by the Trial Court is for child support, it is not includible in her taxable income. Internal Revenue Code, Section 71(b), supra. From appellee’s standpoint, alimony is deductible from his taxable income, while child support is not. Internal Revenue Code of 1954, Section 215; supra.

Appellant argues that the Trial Court erred in referencing its order to the parties’ settlement agreement. It is well understood that to enforce such an agreement the action must be brought in assumpsit since the parties’ rights in such are contractual in nature. Commonwealth ex rel. Jones v. Jones, 216 Pa.Super. 1, 3, 206 A.2d 809 (1969). In the case at bar, however, the support order was entered, not pursuant to the agreement, but rather from the duty imposed by law on the relationship of parent to child. The Trial Court, by its reference to the agreement was making an attempt to take into consideration the consequence of the Federal Income Tax Law upon the parties. Pennsylvania case authority has held repeatedly that this is proper and sometimes necessary if the net effect of the Court’s order would not provide an adequate amount of support for the parties’ children. See Commonwealth ex rel. Stanley v. Stanley, 198 Pa.Super. 15, 179 A.2d 667 (1962) and Commonwealth ex rel. Eppolito v. Eppolito, 245 Pa.Super. 93, 369 A.2d 309 (1976).

The Court below did not consider itself bound by the agreement. Prior to the entry of its order, appellee was paying $165.00 to appellant in accordance with the parties’ agreement. The Court below increased this weekly payment to $250.00 a week, basing that amount on the current needs of the children and the respective financial positions of the parties. The support order was thus proper albeit couched in language referring to the settlement agreement. This language was an attempt at explanation rather than at determination by the Trial Court.

Affirmed.

SPAETH, J., concurs in the result.

CAVANAUGH, J., joins.


author: PER CURIAM:

text:
    443 A.2d 1191
    Gail BRANTNER, Appellant, v. Melvin A. BRANTNER.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1982.
    Filed April 2, 1982.

      Kenneth W. Kubrick, Pittsburgh, for appellant.
    Melvin A. Brantner, did not file a brief on behalf of appellee, in pro. per.
    Before HESTER, BECK and VAN der VOORT, JJ.
   PER CURIAM:

The parties entered into a consent support order on June 21, 1979. As appellee-husband was in arrears, an enforcement hearing was scheduled for August 2, 1979. The case was called to court shortly before 12:00 P.M. At that time appellant and her attorney were present in court, but appellee was not. At that time, the lower court indicated it would issue a letter to appellee giving him ten days to appear before the court or else be subjected to contempt proceedings. The court informed appellant’s counsel that he would be notified should appellee appear, but appellant need not appear again before the court that day. (N.T., pp. 4-5).

Later that day, while the court was conducting its afternoon session, appellee presented himself to the court. Appellant’s counsel was notified and appeared; appellant could not be located. Appellee claimed that he thought the court would break for lunch at twelve thirty. (N.T., p. 6) He also indicated that he had sent in a check a day or two earlier covering two of the three missed support payments. (N.T., pp. 6-7). Appellee further testified that he was forced to pay off a mortgage on which appellant had failed to make monthly payments. She had agreed in the consent order to make such payments from rent received. (N.T., pp. 12-13) Appellant’s counsel voiced concern over his client’s absence during these proceedings. (N.T., p. 18)

The court after hearing appellee’s testimony adjusted the support order to reflect appellee’s claim that appellant had failed to pay the mortgage and appellee was forced to satisfy the mortgage. As the mortgage had been satisfied, appellant was no longer required to use a portion of the rental income for mortgage payments and thus could apply the full rent received to the support of herself and her children. The court reduced appellee’s out of pocket support from $1050 per month to $700.

We believe the court should not have proceeded without appellant being present. The court went beyond merely enforcing a pre-existing order. In such situation prior notice should be given to all parties. See Commonwealth ex rel. Magrini v. Magrini, 263 Pa. Superior Ct. 366, 398 A.2d 179 (1979).

Order vacated and the record is remanded for proceedings not inconsistent with this Opinion. We do not retain jurisdiction.


text:
    443 A.2d 1192
    COMMONWEALTH of Pennsylvania v. Randy SEMINKO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 15, 1981.
    Filed April 2, 1982.

      Alfred B. Bell, Assistant Public Defender, Greensburg, for appellant.
    Albert M. Nichols, District Attorney, Greensburg, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   PER CURIAM:

Appellant was charged with Criminal Mischief and Harassment. On appeal from a summary conviction as to both charges, the trial court found Appellant guilty of both charges and, in addition to placing Appellant on probation for two consecutive ninety-day periods, ordered Appellant “to make restitution as determined by the ... Office of Probation and Parole during the term of [his] probation.”

The restitution directed by the lower court related to damage done by the Appellant to the hood of a Honda Civic automobile owned by the complainant. At trial, the lower court had properly sustained the Appellants’ objection to hearsay testimony as to the amount of damages, since the car had not been repaired and the complainant sought to testify to the contents of an estimate of repair obtained from a third party.

After sentencing, Appellant renewed his earlier objection to any restitution, which was denied by the lower court. No post-trial motions were filed within the time provided by Pa.R.Crim.P. 1123, nor was the Appellant advised, on the record, of his post-verdict rights as required by Rule 1123(c). Two weeks after sentencing, Appellant presented a petition to modify his sentence alleging that that portion of the sentence ordering restitution was illegal and that the Commonwealth had not proved the specific amount of the restitution due. This appeal is from a denial of that petition.

Since an order of restitution is a sentence, whether it is imposed as a direct sentence or as a condition of probation, it must be supported by the record. Commonwealth v. Fuqua, 267 Pa.Super.Ct. 504, 407 A.2d 24 (1979). The trial court must determine the loss or damage the defendant has caused, what amount of restitution he can afford to pay and how he should pay it. The trial court may not delegate these obligations to any agency, such as the Office of Probation and Parole. Commonwealth v. Erb, 286 Pa.Super.Ct. 65, 428 A.2d 574, 582 (1981).

The lower court, which sentenced Appellant on September 3, 1980, would not have had the advantage of this court’s holding in the Erb case, filed seven months thereafter. It is clear from the record, however, that the mandates of Erb have not been met in this case now on appeal.

We therefore vacate the judgment of sentence and remand for resentencing consistent with Commonwealth v. Erb, supra, 42 Pa.C.S.A. § 9721(c) and 18 Pa.C.S.A. § 1106. Any further appeal must be from the new sentence thus imposed.

      . 18 Pa.C.S.A. § 3304(a)(1).

      . Id., § 2709(3).


text:
    443 A.2d 1193
    John J. CASSIDY v. KEYSTONE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1982.
    Filed April 2, 1982.

      Dean B. Stewart, Norristown, for appellant.
    Bernard V. Digiacomo, Norristown, for appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   PER CURIAM:

Appellant appeals from the May 22, 1981 order of the Court of Common Pleas of Montgomery County granting appellee’s petition for the appointment of an arbitrator. Because that order is interlocutory we quash this appeal.

A final order is one which ends the litigation, or alternatively, disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association of Philadelphia, 456 Pa. 402, 319 A.2d 677 (1974) (citing cases); Robinson v. Pocono Futures, Inc., 275 Pa.Super. 44, 418 A.2d 602 (1980). Since the order in question simply appointed a common law arbitrator but did not end the litigation, the order is interlocutory and not appealable by right. Wilson v. Keystone Insurance Company, 289 Pa.Super. 101, 432 A.2d 1071 (1981).

Finally, we note that an interlocutory appeal may be taken by permission pursuant to Chapter 13 of the Rules. Pa.R.A.P. 312 and 42 Pa.C.S. § 702(b). See, e.g. Pa.R.A.P. 1311. However, appellant did not invoke the procedure outlined in Chapter 13. Since no permission was sought to take this interlocutory appeal, the appeal must be quashed.

Appeal quashed.

      . The insurance policy in question makes no mention of the Arbitration Act of 1927 in its “arbitration” section. Thus, the arbitration is at common law, the order is interlocutory and it is not appealable as of right. Wilson v. Keystone Insurance Company, supra.


author: McEWEN, Judge:

text:
    444 A.2d 104
    Edward CARBER, Patricia Carber and Lynne Carber, Appellants, v. INDUSTRIAL DISTRIBUTION SERVICE, INCORPORATED and Theresa M. Castaldi and Patricia Carber.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1981.
    Filed April 2, 1982.
    Oscar S. Schermer, Philadelphia, for appellants.
    William T. MacMinn, Doylestown, for appellees.

      Before HESTER, McEWEN and CIRILLO, JJ.
   McEWEN, Judge:

The single issue presented by the instant appeal is whether expenses incurred for chiropractic treatment of personal injuries resulting from an automobile collision are considered to be expenses for “reasonable and necessary medical services” within the definition of the Pennsylvania No-Fault Motor Vehicle Insurance Act of 1974, July 19, P.L. 489, No. 176, Article III, Section 301, 40 P.S. 1009.301(a)(5)(B). The Pennsylvania Supreme Court has recently addressed this precise issue and concluded that such chiropractic services do come within the ambit of “medical services” under the No-Fault Act. See Miller v. Johnson, 496 Pa. 290, 436 A.2d 1187 (1981).

Therefore, we must reverse the Order of the Common Pleas Court granting summary judgment in favor of the appellee since the inclusion of the chiropractic expenses enables the gppellant to attain the statutory threshold.

Order reversed and the case remanded to the Lower Court for proceedings consistent with this Opinion.


author: BECK, Judge:

text:
    444 A.2d 105
    COMMONWEALTH of Pennsylvania v. Jo Dena Roxanne RUSSO, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 21, 1981.
    Filed April 2, 1982.

      Donald G. Scheck, Stroudsburg, for appellant.
    James F. Marsh, District Attorney, Stroudsburg, submitted a brief on behalf of Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   BECK, Judge:

This is an appeal from a judgment of sentence following a plea of guilty to a single count of theft. Appellant was sentenced to imprisonment for a period of three to twenty-three months and thereafter filed a timely Petition for Reconsideration of Sentence, as to which the lower court took no action. The sentencing judge subsequently filed an opinion in support of judgment of sentence pursuant to Pa.R.A.P. 1925(a).

Appellant alleges that the trial court abused its discretion in sentencing by failing to adequately consider provisions of the Sentencing Code, 42 Pa.C.S.A. § 9701 et seq. The various sentencing options are provided in 42 Pa.C.S.A. § 9721(a):

In determining the sentence to be imposed the court shall, except where a mandatory minimum sentence is otherwise provided by law, consider and select one or more of the following alternatives, and may impose them consecutively or concurrently:
(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.

The single guiding principle for the sentencing court is: “that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).

Very specific guidelines are enunciated in the Code as to circumstances dictating the imposition of total confinement. Section 9725 of the Sentencing Code states:

The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

We note that nothing in either the sentencing transcript or the opinion of the court pursuant to Pa.R.A.P. 1925 addresses the risk that appellant would commit another crime if sentenced to probation or partial confinement. To the contrary, there was testimony at the sentencing hearing that appellant had not been involved in any criminal activity since the time of the behavior for which she was convicted, that she had never been involved in criminal activity prior to this incident, that she was currently living with her mother and was gainfully employed at her mother’s clothing shop, that she had extricated herself from the crowd with whom she had been involved at the time of arrest, and that she was no longer taking drugs. All of those factors arguably lead to the conclusion that there is minimal risk that she will commit another crime if not incarcerated.

Similarly, there was no discussion in the record suggesting that defendant would benefit from incarceration, and the record also supports the contention that appellant appreciated the seriousness of her crime and regretted her behavior.

The Sentencing Code enunciates criteria that are to be considered by the sentencing judge when deciding if probation is an appropriate disposition:

(1) The criminal conduct of the defendant neither caused nor threatened serious harm.
(2) The defendant did not contemplate that his conduct would cause or threaten serious harm.
(3) The defendant acted under a strong provocation.
(4) There were substantial grounds tending to excuse or justify the criminal conduct of the defendant, though failing to establish a defense.
(5) The victim of the criminal conduct of the defendant induced or facilitated its commission.
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present ¿rime.
(8) The criminal conduct of the defendant was the result of circumstances unlikely to recur.
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.
(10) The defendant is particularly likely to respond affirmatively to probationary treatment.
(11) The confinement of the defendant would entail excessive hardship to him or his dependents.
(12) Such other grounds as indicate the desirability of probation.

42 Pa.C.S.A. § 9722.

While it is clear that the record need not reflect mention by the sentencing judge of the specific language of the Sentencing Code, the statement of the court must reflect a reasoned weighing of the factors stated therein. The sentencing judge in this case failed adequately to consider the above factors that are relevant to the defendant. He did cite the fact that appellant was a first offender, but otherwise neglected to discuss the absence or presence in her case of the other criteria. Without a meaningful balancing process clearly setting forth the considerations of the sentencing judge that led him to conclude that a period of total confinement was in order, we are at a loss thoughtfully to evaluate his decision.

The purpose of probation has been set forth by this court in Commonwealth v. Del Conte, 277 Pa.Super. 296, 302, 419 A.2d 780, 782-783 (1980):

As stated in Commonwealth v. Kates, supra, the purpose of probation is “to provide a means to achieve rehabilitation without resorting to incarceration.” 452 Pa. at 115, 305 A.2d at 708. The purpose of parole is similar. In deciding to impose a probation order, or in granting immediate parole, as was done here, the court balances the interest of society in preventing future criminal conduct by the defendant against the possibility of rehabilitating the defendant outside of prison. 18 Pa.C.S. § 1322; see Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223, 1225-26 (1979).

This court and the Pennsylvania Supreme Court have vacated judgment of sentence and remanded for resentencing where it did not appear that the sentencing judge adequately considered the Sentencing Code guidelines as to probation versus total or partial confinement. See Commonwealth v. Butch, 487 Pa. 30, 407 A.2d 1302 (1979); Commonwealth v. Walton, 289 Pa.Super. 411, 433 A.2d 517 (1981).

The Walton court reiterated that the sentencing judge need not adhere strictly to the sentencing guidelines:

We note, however, that “no case has held that the Sentencing Code, 18 Pa.C.S.A. § 1301, et seq., states the exclusive and inflexible criteria in the sentencing process. Indeed, our cases hold that a statement of reasons should not be held insufficient when it is apparent that the court considered and applied the Code even though it made no explicit reference to those guidelines.” Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119, 1125 (1980).

Commonwealth v. Walton, 289 Pa.Super. at 416, 433 A.2d at 519. Still, that court vacated sentence and remanded the case because:

in exercising its discretion in imposing sentence there must be some evidence that the court has carefully considered the weight to be given to each of the grounds set forth in the applicable sections dealing with probation, partial confinement and total confinement.

Id., 289 Pa.Super. at 421, 433 A.2d at 522.

While it is clear that the sentencing judge did consider the seriousness of the crime, there was no evidence that he thoughtfully considered sentencing alternatives. Since he decided that probation was an inappropriate sentence in this case, he next had an obligation to consider the appropriateness of total confinement versus partial confinement. 42 Pa.C.S.A. § 9724. See Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979).

Because it does not appear from the record before us that the sentencing judge considered the factors set forth in the Sentencing Code, we vacate judgment of sentence and remand for resentencing demonstrating “that the court has considered the factors specified in the Code, and that it has balanced the specific background, character, and circumstances of the defendant with the circumstances of the crime, the need for incarceration, to prevent future offenses by the defendant and by others, and the possibility of rehabilitation.” Id., 265 Pa.Super. at 314, 401 A.2d at 1227 (1979).

Sentence is vacated and the case is remanded for resentencing.

WATKINS, J., dissents.

      . By filing this petition, appellant preserved for our review her objections to sentence. See Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978) cited in Commonwealth v. Levenson, 282 Pa.Super. 406, 417 n.10, 422 A.2d 1355, 1361 n.10 (1980). The Levenson court held the lower court’s failure to act on the petition is an implicit denial of that petition.

      . Appellant also alleges that the trial court relied upon impermissible factors in sentencing and failed to consider mitigating factors. It is clear that reliance in whole or in part upon an impermissible factor invalidates a sentence. See Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977); Commonwealth v. Kostka, 276 Pa.Super. 494, 419 A.2d 566 (1980); Commonwealth v. Cruz, 265 Pa.Super. 474, 402 A.2d 536 (1979). We need not reach those issues, however, because we find the trial judge’s conclusory comments did not reflect a reasoned weighing of the Sentencing Code requirements; accordingly, we remand for resentencing.

      . In Commonwealth v. Kraft, 294 Pa.Super. 599, 605, 440 A.2d 627, 630 (1982), we explained the rationale for requiring the sentencing judge to enunciate in the record reasons for the sentence imposed:
      The policy behind requiring the sentencing judge to disclose in open court the reasons for the sentence is to make public “the thought process by which he arrives at a particular appropriate sentence.” Commonwealth v. O’Brien, 282 Pa.Super. 193, 422 A.2d 894, 895 (1980). It is a safeguard against arbitrary decisions and prevents consideration of improper and irrelevant factors. It provides the appellate court with a basis on which to understand and review the sentencing court’s decision. The judge’s thought process should demonstrate that he or she reflected upon the standards established in the Sentencing Code.
      (Footnote deleted.)


author: JOHNSON, Judge: BROSKY, POPOVICH, Judge, WICKERSHAM, Judge,

text:
    444 A.2d 108
    COMMONWEALTH ex rel. Lucretia JOHNSON, Appellant v. Melvin N. KING. Appeal of Lucretia JOHNSON.
    Superior Court of Pennsylvania.
    Argued June 25, 1981.
    Filed April 2, 1982.
    Petition for Allowance of Appeal Denied Aug 3, 1982.

      Daniel Lee Haller, Aliquippa, for appellant.
    Robert A. Banks, Ambridge, for appellee.
    Roger Margolis, Harrisburg, for participating party.
    Before CERCONE, President Judge, and SPAETH, HESTER, WICKERSHAM, BROSKY, JOHNSON, POPOVICH, DiSALLE and SHERTZ, JJ.
   JOHNSON, Judge:

This appeal concerns whether a civil action for support of a non-marital child is barred by the running of the two-year criminal statute of limitations when paternity is denied. This case was ordered argued along with Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982) because of the similarity of issues.

The minor child was born on June 19, 1975 to Appellant. She filed a civil complaint on June 29, 1977 for support of the child pursuant to the Civil Procedural Support Law, 62 P.S. § 2043.31 et seq., against the putative father, Appellee. On September 16, 1977, pursuant to recommendations made by the Domestic Relations Office, Appellant initiated criminal proceedings pursuant to 18 Pa.C.S.A. § 4323 against Appellee for Neglect to Support a Bastard. The civil support complaint was dismissed on September 28, 1977. The criminal action was thereafter dismissed at the preliminary hearing on October 13, 1977 due to the running of the two-year criminal statute of limitations, 18 Pa.C.S.A. § 4323(b).

On February 19, 1980, Appellee filed Preliminary Objections and a Motion to Dismiss in response to the civil support action. Argument on the issue was withdrawn and a Stipulation as to Facts and Issues, signed by each party’s counsel, was presented. By Order dated June 17, 1980, the lower court sustained Appellee’s Preliminary Objections “for the reasons set forth in Weyand v. Sharpless, 38 Beaver County Law Journal 17 (1979) and Gould v. Clayton, 38 Beaver County Law Journal 193 (1980).”

Appellant argues that she may maintain a civil action for support pursuant to 42 Pa.C.S.A. § 6701 et scq., notwithstanding her failure to institute criminal proceedings within two years of the birth of her child.

Appellee argues that Appellant’s right to file a paternity and support action expired in this case two years after the birth of the child and prior to the new legislation granting a six-year statute of limitations. Therefore, her action cannot be resurrected by a subsequent change in the limitations law.

For the reasons set forth in Williams v. Wolfe, supra, we reverse and remand.

The only factual difference between the instant case and Williams v. Wolfe, supra, is that Appellant in the instant case did institute both civil and criminal proceedings prior to the enactment of 42 Pa.C.S.A. § 6701 et seq. Because a final determination of paternity and/or support was never made, due to the dismissal of both actions, there is no res judicata or collateral estoppel effect, and therefore our holding in Williams v. Wolfe, supra shall stand. See Jordan v. Gore, 288 Pa.Super.Ct. 86, 431 A.2d 300 (1981).

The Order dated June 17, 1980 is reversed and the case is remanded for further proceedings consistent with this opinion.

BROSKY and POPOVICH, JJ., file concurring statements.

WICKERSHAM, J., files a dissenting statement.

DiSALLE and SHERTZ, JJ., did not participate in the consideration of this case.

BROSKY,

Judge, concurring:

For the reasons set forth in my concurring opinion in Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982), (Brosky, J. Concurring Opinion), I believe that to subject a child born out of wedlock to a limitation period, however reasonable, is to limit that child’s unqualified right to receive support from his father. As other jurisdictions have held, such limitation violates the Equal Protection Clause of the United States Constitution. See: State of Florida, Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979); State of Montana, Department of Revenue, Department of Social Rehabilitative Services v. Wilson, 634 P.2d 172 (Mont 1981); Stringer v. Dudoich, 92 N.M. 98, 583 P.2d 462 (1978); County of Lenoir ex rel. Cogdell v. Johnson, 46 N.C.App. 182, 264 S.E.2d 816 (1980). However, since I agree with the majority that appellant’s civil action for support is not barred, I agree with the majority’s decision to reverse and remand.

POPOVICH, Judge,

concurring:

I concur in the result; however, I am of the view that no statute of limitations can constitutionally preclude a child from asserting paternity during his minority.

WICKERSHAM, Judge,

dissenting:

For the reasons noted in Williams v. Wolfe, 297 Pa. Super. 270, 443 A.2d 831 (1982) (Dissenting Opinion by Wicker-sham, J.) I respectfully dissent.

      . Appellant also raises equal protection and due process arguments which need not be addressed due to our determination of the case on statutory construction grounds. In re “B”, 482 Pa. 471, 394 A.2d 419 (1978); Ministers and Missionaries Benefit Board of American Baptist Churches v. Goldsworthy, 253 Pa.Super.Ct. 321, 385 A.2d 358 (1978).

      . There is no indication from the record that the civil support action was ever reinstated. However, in order to promote judicial economy, we shall waive this procedural defect, pursuant to Pa.R.A.P. 105(a). See Commonwealth v. Allen, 278 Pa.Super.Ct. 501 n. 3, 420 A.2d 653 n. 3 (1980).

      . 18 Pa.C.S.A. § 4323(b) states:
      § 4323. Neglect to support bastard

      (b) Limitation of action.—All prosecutions under this section must be brought within two years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child, or shall have acknowledged in writing his paternity, in which case a prosecution may be brought at any time within two years of any such contribution or acknowledgement by the reputed father.
      Repealed, April 28, 1978, P.L. 106, No. 46, § 3, eff. June 27, 1978.

      . See footnote 2, supra.

      . These cases state that a plaintiff cannot revive a civil support action pursuant to 42 Pa.C.S.A. § 6701 et seq. that was fully barred prior to the effective date of that statute.


author: MONTEMURO, Judge:

text:
    444 A.2d 110
    COMMONWEALTH of Pennsylvania v. Samuel Bernard COLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 11, 1981.
    Filed April 2, 1982.

      Norris E. Gelman, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before MONTEMURO, HOFFMAN and VAN der YOORT, JJ.
   MONTEMURO, Judge:

This is an appeal from the denial of Post-Conviction Hearing Act (P.C.H.A.) relief on appellant’s second P.C. H. A. petition. Appellant was given a hearing on his first P.C.H.A. petition and his requested relief was denied on February 23, 1978. The Order was subsequently affirmed on appeal by this court in Commonwealth v. Coley, 273 Pa.Super. 624, 422 A.2d 1163 (1979). Appellant’s second P.C.H.A. petition posited one issue which had not been raised in his first petition, alleging that the failure to raise this issue was due to ineffectiveness of the attorney who handled the first P.C.H.A. petition. For the reasons set out below, we find no reversible error and therefore affirm the order of the lower court.

Appellant’s travels through the courts on this case began when he was arrested and charged with aggravated robbery and assault. The charge and ultimate conviction by a jury on these two counts arose from an incident occurring shortly after 4:00 a. m. on the morning of September 4, 1971. Theodore Jackson, the complainant, testified that he was standing on a porch ringing his friend’s doorbell at 2411 Thirty-third Street, Philadelphia, when defendant approached him and announced that “This is a stick-up. I need a fix.” Appellant then ordered Jackson to turn over his money, and the victim promptly complied by putting 18 or 20 dollars down on the porch. Appellant, dissatisfied with this amount, demanded more money. When additional funds were not forthcoming, appellant struck the victim in the head, knocked him down, and kicked him under the chin. During the ensuing struggle, which lasted approximately 15 minutes appellant pelted the victim with bottles and garbage.

The complainant then stopped a police car, told the officer he had been robbed, and pointed to appellant. Appellant fled on foot while the officer and Jackson, who were in separate cars, gave chase. Appellant refused to stop when the police officer ordered him to do so, and the officer saw appellant run down a nearby street. Appellant was apprehended in a third floor apartment on that street by the officer and positively identified by Jackson at the time.

Following conviction of these charges and denial of post-trial motions, appellant was sentenced to a twenty (20) year probationary term for robbery (Bill No. 164). Sentence was suspended on the assault charge (Bill No. 163). Appellant took no direct appeal.

On March 11,1976, appellant, while still on probation, was convicted on unrelated charges of second degree murder, robbery, and criminal conspiracy. As a result of this violation of his probation, Judge McDermott revoked appellant’s probation, and on March 30, 1976, imposed a sentence of ten (10) to twenty (20) years for this offense.

On September 28, 1977, appellant’s initial P.C.H.A. petition, alleging, inter alia, ineffectiveness of counsel, was denied. That decision was affirmed by this court. A second P.C.H.A. petition was filed in June, 1979 alleging ineffectiveness of all prior counsel for failure to raise and litigate the issue set out in detail here. The hearing judge ruled that the issue could be raised, but that since it involved a pure question of law, an evidentiary hearing was unnecessary. Appellant agreed. The court denied relief on this issue, a finding with which we agree.

Appellant contends that counsel at his first P.C.H.A. hearing was ineffective for failure to raise trial counsel’s failure to correctly advise the trial court judge on Pennsylvania law regarding the request of the deliberating jury to have a portion of the notes of testimony read to them. In this case, the jury interrupted its deliberations to request that the portion of the victim’s testimony, which concerned the location of the street light near the robbery scene, be repeated to them from the stenographer’s notes. Before deciding whether or not to grant the request, the judge conferred with counsel in chambers, during which time the following exchange occurred:

The Court: Gentlemen, as I understand it, it is not an appropriate thing for the court to have excerpts of the notes of testimony read to the jury. Is that your understanding?
Counsel for Defense: That’s my understanding.
Counsel for Prosecution: It’s myíánderstanding also. The Court: And I think it an appropriate rule. The arc light, whatever, is always lost in other considerations we may not be able to fathom ourselves. Therefore, I will deny the juror’s (sic) request for the reading of the notes of testimony.

Appellant contends that there is no per se rule in Pennsylvania which prevents the trial court from honoring the request of a deliberating jury. In fact, as enunciated in Commonwealth v. Peterman, 430 Pa. 627, 244 A.2d 723 (1968), (overruled in part on other grounds as discussed in Commonwealth v. Moore, 246 Pa.Super. 163, 369 A.2d 862 (1977) referring to Commonwealth v. Bighum 452 Pa. 554, 307 A.2d 255 (1973)), the reading of the notes of testimony to the jury is a matter of sound discretion with the trial court. As quoted above, trial counsel concurred in the trial court’s erroneous assumption that there exists a rule prohibiting the jury from re-hearing testimony from the stenographer’s notes. As a result of trial counsel’s concurrence with the court’s assumption, the Peterman decision was never addressed. It is on this error that appellant would have his trial counsel deemed ineffective.

As appellant notes in his brief, the threshold decision is the relative merit of the abandoned claim. If we were to conclude that the omitted contention has arguable merit, our analysis then shifts to prior counsel’s basis for decision. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). In this case, we find no merit in the abandoned claim in the first instance.

We have no quarrel with the law as stated in Commonwealth v. Peterman, supra. The court in Peterman was concerned about the appropriate means and circumstances for allowing testimony to be read in court in response to a request from the jury. The standards set out by the court are clear. If a trial court refuses a jury request for further instructions on the law, refusal of such request is reversible error. Where a jury, in order to refresh their recollection, requests a reading of a portion of the testimony actually given at trial, it is within the discretion of the trial court whether to grant such request. If the court, at the request of the jury, send out such notes of testimony with the jury, such would constitute reversible error. If the court allows testimony to be read to the jurors, care must be taken that undue emphasis not be placed upon those portions of testimony. Peterman also sets down the proper procedure for the trial court to follow in these circumstances. The thrust of Peterman and its progeny is that there are times when it is not reversible error to read notes of testimony to a deliberating jury. Commonwealth v. Hart, 479 Pa. 84, 387 A.2d 845 (1978); Commonwealth v. El, 273 Pa.Super. 1, 416 A.2d 1058 (1979); Commonwealth v. Bolden, 268 Pa.Super. 431, 408 A.2d 864 (1979); Commonwealth v. Banks, 267 Pa.Super. 10, 405 A.2d 1277 (1979); U. S. v. Troback, 404 F.Supp. 1206 (ED Pa. 1975), affirmed, 544 F.2d 513 (1976). The court in Peterman did not address itself to a court’s refusal to read notes of testimony to a deliberating jury. The crux of the opinion was a determination of the special precautions which must be taken when a court decides to grant such a request from the jury to insure to as great a degree as possible no prejudice to either side.

There are two cases decided subsequent to Peterman in which refusal to grant such a jury request was the complaint of appellant. Commonwealth v. Jeter, 273 Pa.Super. 83, 416 A.2d 1100 (1979); Commonwealth v. Reed, 268 Pa.Super. 240, 407 A.2d 1335 (1979). In both cases, the claim was summarily dismissed.

We turn now to the case at bar. It would clearly not be reversible error for the trial court to have refused to accede to the jury request to re-hear the notes of testimony. It is also well settled that this court may affirm the decision of the lower court if it was correct for another reason than that enunciated by the court itself. Commonwealth v. Shoatz, 469 Pa. 545, 366 A.2d 1216 (1976); Commonwealth v. Baker, 466 Pa. 382, 353 A.2d 406 (1976). Thus, even if the trial judge initially misstated the reason for his ruling, his subsequent comment in which he found this to be an appropriate application in this case leads this court to find that his denial of the jury’s request did not constitute an abuse of discretion.

Appellant argues stridently that the lighting conditions at the time of the robbery were the sine qua non of the identification of the defendant by the victim. However, according to the victim’s uncontradicted testimony, he was able to see and identify appellant with whom he struggled for fifteen minutes because there was a street lamp located about five feet away. The victim describes the light as “one of those bright blue lights” and he asserted that the light made it bright enough to be ‘real light.’ ” Hence, this testimony, if read by the stenographer in accordance with the jury’s request, would only have confirmed and reinforced the complainant’s unequivocal identification of the defendant.

Because this evidence, had it been read to the jury as requested, could only have been adverse to the appellant, and because trial counsel did not prejudice appellant’s case by failing to inform the trial court of its discretion in this matter under the Peterman decision, we therefore cannot find counsel for appellant’s first P.C.H.A. petition ineffective for failing to raise this issue. Therefore, the lower court’s denial of post-conviction hearing relief is hereby affirmed.

Order affirmed.

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

      . Commonwealth v. Peterman, supra was decided also on the ground that a defendant’s prior criminal record may be introduced for the limited purpose of impeaching his credibility if he takes the stand. Commonwealth v. Bighum, supra, although not specifically overruling Commonwealth v. Peterman, modified the law as to this issue as noted in Commonwealth v. Moore, supra.
      This proposition from Peterman is inapplicable to this discussion.


author: HESTER, Judge:

text:
    444 A.2d 113
    COMMONWEALTH of Pennsylvania v. David DUNSAVAGE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1981.
    Filed April 12, 1982.

      William J. Noone, Mahanoy City, for appellant.
    Richard B. Russell, District Attorney, Pottsville, for Commonwealth, appellee.
    Before HESTER, ROWLEY and MONTGOMERY, JJ.
   HESTER, Judge:

This appeal is first taken from Orders of Court of the Court of Common Pleas of Schuylkill County finding the appellant guilty of possession and delivery of a controlled substance, namely hydromorphone, and denying his motion in arrest of judgment and sentencing. The appellant argues that the trial court erred in taking judicial notice of the fact that hydromorphone, also known as dihydromorphone or Dilaudid, is a derivative of morphine, which, in turn, is an alkaloid of opium. Although hydromorphone is not specifically listed as a Schedule II Controlled Substance, both morphine and opium are so listed. The Controlled Substance, Drug, Device and Cosmetic Act, 1972, April 14, P.L. 233, No. 64 (1972), 35 Pa.S. Sec. 780-101 et seq.

It is an undisputed fact that hydromorphone was discovered throughout the appellant’s place of residence. The chemical composition of narcotics can be readily ascertained by applying the laws of nature and science to certain facts. The lower court was justified in using judicial notice to bring about a just result. Rosenfield v. Coleman, 19 D & C 2d 635 (1959); Lessig v. Reading Transit & Light Company, 270 Pa. 299, 113 A. 381 (1921); Horen v. Davis, 274 Pa. 244, 118 A. 22 (1922).

This appeal is also taken from Orders of Court from that same Court finding the appellant guilty of possessing other controlled substances, namely phentermine and diazepam, and denying the appellant’s motion in arrest of judgment and sentencing. Appellant argues that equal access by his girlfriend to the premises where the substances were found destroys the requisite finding of possession.

We are not persuaded. The cases cited by the appellant in support of his position are factually distinguishable from the facts and issues before us. We find it significant that capsules of phentermine and tablets of diazepam were found among the appellant’s personal effects in his bedroom dresser; that an undercover agent watched the appellant retrieve controlled substances from the bureau and second floor bedroom; and, that the appellant purchased drugs from various doctors within a short time span. These facts meet the requirements for a finding of joint constructive possession, Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968); follow the court’s finding of possession of LSD in Commonwealth v. Updegrove, 223 Pa.Super. 7, 296 A.2d 854 (1972); and, distinguish this case from those opinions cited by the appellant..

Finally, this is an appeal taken from an Order of Court denying the appellant’s Motion for a New Trial. The appellant contends that the lower court erred in allowing the medical doctor, called as a defense witness, to testify as an expert witness on cross-examination when neither party qualified the witness as an expert.

The appellant asked the doctor-witness whether he had prescribed phentermine and diazepam for the appellant’s girlfriend. This question was presumably asked to demonstrate that such drugs were obtained legally by someone other than the appellant. On cross-examination, the appellee asked the same witness whether he would have prescribed such drugs had he known that the girlfriend was acquiring them from other doctors at the same time. Such a question is moral and legal in nature; it does not demand medical expertise for an intelligent answer. Therefore, it was not necessary to qualify the witness as an expert.

Judgment of sentence affirmed.


author: CAVANAUGH, Judge: SPAETH, Judge,

text:
    444 A.2d 115
    COMMONWEALTH of Pennsylvania, v. Marlin H. BOWERMASTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1980.
    Filed April 12, 1982.
    Petition for Allowance of Appeal Denied July 19, 1982.

      Taylor P. Andrews, Public Defender, Carlisle, for appellant.
    J. Michael Eakin, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   CAVANAUGH, Judge:

Appellant Marlin H. Bowermaster was arrested and charged with possession with intent to deliver marijuana. His motion to suppress the evidence was denied and appellant was found guilty by a jury of the crime charged. Following denial of his post-trial motions, appellant was sentenced to a term of imprisonment. This appeal followed. We find no merit in the claims raised by appellant and therefore we affirm.

Appellant first claims that the trial court erred in refusing to suppress evidence seized from the car in which he was riding immediately prior to his arrest. He contends that there was no probable cause to stop the vehicle and that any evidence seized from the car must, therefore, be suppressed. The facts leading up to appellant’s arrest are as follows.

Several days before appellant’s arrest, a police informant told Pennsylvania State Police Officers Wynn and Helwig that he had observed marijuana at a farmhouse occupied by one Harry Bevan and that Bevan had told him that he expected a large shipment of marijuana within the next couple of days. The farmhouse was put under surveillance approximately thirty-six to forty hours prior to the time of the arrest. During the period of surveillance, numerous vehicles were observed arriving and departing the premises, staying for periods ranging from five to twenty minutes. A silver Pontiac Firebird visited the farmhouse several times. When this vehicle last departed the farmhouse on March 9, 1979, Officers Wynn and Helwig followed in an unmarked car. The silver Firebird stopped about one half mile from the farmhouse and picked up appellant, even though appellant had not signaled to this car nor to either of the two preceding vehicles that he wanted a ride. A registration check disclosed that the silver Firebird was registered to a Donald Bevan, later identified as the driver of the car and the brother of the occupant of the farmhouse.

Officers Wynn and Helwig, from a distance of approximately two car lengths behind the Firebird, observed appellant and Bevan engage in animated conversation and hand slapping, and then saw appellant reach to the back seat for a brown paper bag which he brought up to the front seat and placed in front of him. Shortly thereafter, what appeared to be a white rolled cigarette blew out the right front window. A few moments later appellant and Bevan were seen passing an object back and forth and placing it to their lips while holding it between their thumbs and forefingers. Five minutes later Bevan held what appeared to be a charred cigarette outside the window, rubbing it between his fingers so that the contents scattered in the wind. Based on years of experience with drug investigations, Officer Wynn concluded that the occupants of the car were smoking marijuana.

Shortly thereafter, the Firebird was stopped by officers of the Lower Allen Township Police Department acting upon a radio request from Officers Wynn and Helwig. The Lower Allen Police Officers noticed two paper bags in the area directly in front of the passenger seat which had been occupied by appellant. The bags were open and the officers were able to see the contents, which they identified as marijuana. The bags were removed and appellant and Bevan were placed under arrest.

Appellant claims that the 4.1 pounds of marijuana seized from the car should have been suppressed. Both of the arresting officers testified that they could identify the contents of the bags from outside of the vehicle and therefore, as long as they were not acting improperly in stopping the vehicle, the evidence is admissible under the plain view doctrine. Harris v. U. S., 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

It was not necessary for the arresting officers to have personal knowledge of the information constituting probable cause to stop the silver Firebird. They were merely responding to a radio request for assistance. If Officers Wynn and Helwig, who requested the stop, had sufficient information to constitute probable cause, then the stop and the subsequent seizure of marijuana were proper. Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972).

The Pennsylvania Supreme Court has stated that: probable cause exists if the facts and circumstances which are within the knowledge of the officer at the time of arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime.

Commonwealth v. Jones, 478 Pa. 172, 177, 386 A.2d 495, 497 (1978). This court stated in Commonwealth v. Tolbert, 235 Pa.Super. 227, 230, 341 A.2d 198, 200 (1975) that “when we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element.”

Appellant alleges that in examining the factors relevant to a determination of whether there was probable cause we must ignore the tip from the informant since it does not meet the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Aguilar held that where probable cause is based on information supplied by an informant, it must be shown that the informant himself is reliable and that the information he offers has a reliable basis. We feel that the test was satisfied in this case. Officer Wynn testified that information received from the same informant had resulted in three prior drug convictions. The informant’s statement that there was marijuana present at the farmhouse was based on personal observation and therefore has a reliable basis.

Even if the Aguilar test was not met, we would not have to ignore the informant’s tip in this case. The Supreme Court held in Spinelli v. U. S., 393 U.S. 410, 418, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969) that even if an informant’s tip is not sufficient, standing alone, to provide the basis for a finding of probable cause, it can be considered along with other factors in determining whether there was probable cause.

We believe that the informant’s tip and the high rate of vehicle activity at the farmhouse, including several visits by the silver Firebird registered to Donald Bevan, in conjunction with the personal observations of Officers Wynn and Helwig of the actions of Donald Bevan and appellant were sufficient to warrant a belief that appellant was committing a crime. Therefore, the trial court did not err in refusing to suppress the evidence seized from the car.

Appellant next argues that the trial court erred when it denied his motion for a mistrial. The motion was made following a remark made by Donald Bevan during the presentation of the Commonwealth’s case-in-chief. Appellant claims that the concluding remark in the following exchange created an inference in the minds of the jurors of prior criminal activity on the part of appellant and was therefore grounds for a mistrial.

Q. Were you questioned by the police?
A. I was, sir.
Q. Did you initially tell them what you have told us here today at first?
A. No sir, I told them that it was mine and that Mr. Bowermaster was, in fact, hitchhiking.
Q. Why did you tell them that?
A. Well, this is my first time and I figured that, you know, well, I just figured they would be easier on me than they would on him basically.

N.T. 49 (emphasis added).

The “controlling question” in cases raising this issue “is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.” Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972). If such an inference is created, then a mistrial must be granted. However, the Pennsylvania Supreme Court stated in Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979) that “[not] all references which may indicate prior criminal activity warrant reversal.” Mere “passing references” to prior criminal activity do not warrant reversal unless the record illustrates that prejudice resulted from the reference. Ibid. As we stated in Commonwealth v. Colon, 264 Pa.Super. 314, 321-322, 399 A.2d 1068, 1071 (1979), there is “no per se rule requiring a new trial for every reference [to prior criminal conduct]. The decision whether to declare a mistrial when faced with these situations is addressed to the sound discretion of the trial judge.”

Moreover, there is no indication that the district attorney was attempting to elicit a response which would prejudice the appellant by suggesting prior criminal activity on his part. On the contrary, it is not unreasonable to assume that the district attorney “sought only to minimize the harmful effect of any possible impeachment of Bevan by the defense, by having Bevan explain the inconsistency between his trial testimony and his initial statement to the police during his direct testimony.” Appellee’s brief at 17. The Pennsylvania Supreme Court recently stated that “[t]he nature of [a reference to prior criminal conduct] and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required.” Commonwealth v. Richardson, 496 Pa. 519, 437 A.2d 1162, 1165 (1981), citing Commonwealth v. Williams, 470 Pa. 172, 178 n.4, 368 A.2d 249, 252 n.4 (1977) (emphasis added). See also Commonwealth v. Black, 464 Pa. 604, 347 A.2d 705 (1975).

It is true that in both Richardson and Williams, supra, the Supreme Court’s conclusion that a mistrial was not warranted was based in large part on its belief that any possible prejudice had been removed by cautionary instructions. In the instant case no cautionary instructions were given. Neither, however, were such instructions requested by appellant’s counsel. Appellant has at no point alleged that his counsel was ineffective for failing to request such instructions and therefore the issue of counsel’s possible ineffectiveness is not before us. Nor can we hold that the lower court should have given such instructions sua sponte. In Commonwealth v. Jackson, 248 Pa.Super. 420, 375 A.2d 168 (1977), a trial judge refused to grant a mistrial following a reference to a prior burglary committed by the defendant and did not give cautionary instructions. We affirmed the conviction, agreeing with the lower court, which had stated that “any undue reference to [the remark] either by way of additional instructions or admonishment would have only exaggerated a very minor problem.” 248 Pa.Super. at 425, 375 A.2d at 170.

Our review of the record leads us to conclude that the remark objected to did not rise to the level of depriving appellant of a fair and impartial trial and is therefore not grounds for a mistrial. Commonwealth v. Palmer, 463 Pa. 26, 342 A.2d 387 (1975).

Finally, appellant claims that the verdict was unsupported by the evidence as a matter of law, or in the alternative the verdict was against the weight of the evidence. With regard to the sufficiency claim, appellant admits that the evidence was sufficient to sustain a conviction for mere possession, but he alleges that it was insufficient to support the jury’s verdict of guilty of -.possession with intent to deliver. ■

In addressing the sufficiency claim, we must determine: whether, viewing all of the evidence at trial in the light most favorable to the Commonwealth, the verdict winner, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.

Commonwealth v. Kline, 277 Pa.Super. 486, 489, 419 A.2d 1252, 1254 (1980).

Donald Bevan testified that the appellant had called him the day of the arrest and had asked him if he (Bevan) knew where appellant could obtain some marijuana and that appellant had said he wanted three pounds of marijuana or “whatever was around.” Police officers seized 4.1 pounds of marijuana from the car at the time of the arrest. Bevan also testified that about one-quarter pound of marijuana was for his own personal use. Therefore the evidence, viewed in the light most favorable to the Commonwealth, established that appellant had possession of at least three pounds of marijuana. Additionally, the jury had before it the testimony of one of the arresting officers that four pounds of marijuana was a large amount for personal use. The large quantity of marijuana possessed by appellant justified the jury’s drawing an inference of intent to deliver. Commonwealth v. Wallace, 265 Pa.Super. 91, 401 A.2d 816 (1979).

As to the claim that the verdict is against the weight of the evidence, it is true that a new trial may be granted if a verdict is against the weight of the evidence even if the evidence is legally sufficient to sustain a guilty verdict, Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). The grant of a new trial is, however, within the discretion of the trial court. Commonwealth v. Thomas, 278 Pa.Super. 39, 419 A.2d 1344 (1980). In this case there was a conflict between the testimony given by the appellant and that given by Donald Bevan. There was also an inconsistency between Bevan’s initial statement to police and his testimony at trial. It was, nevertheless, within the province of the jury to resolve the inconsistencies in favor of Bevan’s trial testimony. Therefore, the trial court did not abuse its discretion when it refused to grant appellant a new trial.

Judgment of sentence affirmed.

SPAETH, J., files concurring and dissenting opinion.

SPAETH, Judge,

concurring and dissenting:

I agree with the majority that the lower court did not err in denying the motion to suppress. However, I cannot agree with the majority’s conclusion that the court properly denied appellant’s motion for a mistrial. I think it clear that from the statement by Donald Bevan, the Commonwealth’s witness, the jury could, and must, have inferred that appellant had engaged in prior criminal activity, and that this inference was prejudicial to appellant. The judgment of sentence should therefore be reversed and the case remanded for new trial.

During direct examination by the prosecutor, Donald Be-van testified as follows:

Q. Is it correct that you have entered a plea of guilty to possession of schedule one controlled substance?
A. Yes, sir, that’s true.
Q. Is it correct that that charge was reduced from possession with intent to deliver a controlled substance?
A. It was, sir.
Q. Have you been sentenced on that charge?
A. Not as yet, sir.
Q. Were you represented by an attorney at that time?
A. Yes, sir, I was.
Q. Who was that?
A. It was Anthony Federico, Harrisburg address.
Q. Were you questioned by the police?
A. I was, sir.
Q. Did you initially tell them what you have told us here today at first?
A. No, sir. I told them that it was mine and that Mr. Bowermaster was, in fact, hitchhiking.
Q. Why did you tell them that?
A. Well, this is my first time and I figured that, you know, well, I just figured they would be easier on me than they would on him basically.
MR. ANDREWS:
If Your Honor please, may we approach the bench?
(Whereupon, the following discussion was held at side bar.)
MR. ANDREWS:
I think the implication of what this witness has just said is that my client has a prior record. And I would ask for a mistrial right now on that basis.
THE COURT:
The motion is overruled. I don’t think there is enough from what he said to indicate anything about a prior record.
(End of discussion at side bar.)

N.T. 49-50.

Under Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972), as the majority acknowledges, the inquiry is whether the jury could reasonably infer from the testimony that the defendant had engaged in prior criminal activity. Appellant argues that “[t]he only possible interpretation of Mr. Be-van’s testimony which makes sense is that he chose initially to take total responsibility for the crime because he felt that he would receive more lenient treatment since he had no record and the defendant [appellant] apparently had a record.” Appellant’s Brief at 27. This argument is plainly right. Certainly that is the way I understand Bevan’s testimony, and I have no doubt that that is the way the jury understood it. Also, it may be added, the jury had just heard testimony by Bevan to the effect that he had known appellant “since we were young,” N.T. 38, thus demonstrating, first, that he was in a position to know whether appellant had engaged in criminal activity, and second, that he might well have lied in telling the original hitchhiking story to help his boyhood friend.

The majority does not discuss what it admits is the “controlling question,” slip op. at 118, of whether a juror could reasonably infer from Bevan’s statement that appellant had engaged in criminal activity. Rather, it goes on to say that “there is no indication that the district attorney was attempting to elicit a response which would prejudice the appellant . . ..” slip op. at 118, and, as evidence of the prosecutor’s good intent, adopts the Commonwealth’s after-the-fact explanation, Appellee’s Brief at 8, as “not unreasonable,” slip op. at 118.

I cannot subscribe to this reasoning. A prosecutor’s intent in asking a question is not relevant to whether the response given creates an inference prejudicial to the accused. An innocent question may elicit a response so prejudicial as to deny an accused the right to a fair trial, and this is so whether the innocent question is asked by the prosecutor, Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979) (inference of criminal activity drawn despite fact that purpose of prosecutor’s question was to show defendant had fled after murder), or by the accused’s own counsel, Commonwealth v. Wetzel, 276 Pa.Superior Ct. 445, 419 A.2d 541 (1980) (inference of criminal activity drawn despite the fact that questions asked by defense counsel and not prosecutor).

Commonwealth v. Richardson, 496 Pa. 21, 437 A.2d 1162 (1981) , on which the majority relies, is inapposite. That case involved the question whether cautionary instructions cured the prejudice resulting from a witness’s remark that the last time the defendant was at the home of the murder victim “was when he burglarized it.” Supra, 496 Pa. at 524, 437 A.2d 1164. The Supreme Court held that “prompt and decisive” cautionary instructions cured the prejudice created by the remark. Id., 496 Pa. at 526, 437 A.2d 1165. The Court noted, too, that there was ample on-the-record evidence that the prosecution had made an effort to keep this information about the previous burglary from the jury:

This remark was preceded by discussions between the prosecutor, the court, and defense counsel concerning the necessity of preventing the jury from learning about the earlier burglary. In order to prevent any reference to the burglary from being made, the prosecutor instructed his witnesses not to mention the burglary directly, but to refer to it by date, October, 1977, if it were appropriate to refer to the prior burglary. Further, the prosecutor, on several occasions, cautioned defense counsel to be careful in this area of cross examination, and defense counsel stated that he appreciated “the prosecutor’s concern over this dangerous line of cross examination.”
Id., 496 Pa. at 577, 437 A.2d at 1165.

It was in this context that the Court suggested that “[t]he nature of the inference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required. Id. at n. 4.” quoting, Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977). Richardson is therefore distinguishable, for, as the majority admits, no cautionary instructions were given to mitigate the prejudice flowing from Bevan’s comment.

It is not enough to say, as the majority does, that appellant did not ask for cautionary instructions. The fact remains that prejudice resulted. The majority does not suggest, nor could it, that counsel’s failure to ask for cautionary instructions constituted a waiver. Moreover, the record shows that such a request would have been pointless, for the trial judge did not consider the statement prejudicial, as shown by his ruling on counsel’s motion for a mistrial:

THE COURT: The motion is overruled. I don’t think there is enough from what he said to indicate anything about a prior record.
N.T. 50.

The majority says, “Nor can we hold that the lower court should have given such instructions sua sponte.” Slip op. at 119. I do not see why not. If a court can sua sponte order a mistrial when prejudice occurs, Commonwealth v. Anderson, 294 Pa.Superior Ct. 1, 439 A.2d 720 (1981), then a fortiori, it can sua sponte give cautionary instructions when prejudice occurs. Indeed, in other cases courts have done just that. See, e.g., Commonwealth v. Baker, 466 Pa. 382, 353 A.2d 406 (1976); Commonwealth v. Thomas, 459 Pa. 371, 329 A.2d 277 (1974). In discussing the court’s duty to act sua sponte when faced with prosecutorial overreaching, it has been well said:

The trial judge, in jury cases, “is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.” Quercia v. United States, 289 U.S. 466 [469], 53 S.Ct. 698 [699], 77 L.Ed. 1321, 1324 (1932). See also Commonwealth v. Claiborne, 175 Pa.Super.Ct. 42, 50, 102 A.2d 900 (1953). 75 Am.Jur.2d Trial S.87. It has long been recognized in this Commonwealth that the trial judge not only has the power, but in proper cases the duty as well to “supervise the addresses of counsel so far as may be necessary to protect prisoners or parties litigant from injurious misrepresentations and unfair attack, and the jury from being misled. When this power should be exercised must be left to the sound discretion of the judge, and he should not hesitate to act where the fair administration of justice requires him to do so.” Commonwealth v. Mudgett, 174 Pa. 211, 257, 34 A. 588 (1896). “The trial judge may, and should, confine arguments within the limitations of legitimate advocacy.” Commonwealth v. Ross, 190 Pa.Super. 145, 154, 152 A.2d 778 (1959). Commonwealth v. Phillips, 183 Pa.Super. 377, 385, 132 A.2d 733 (1957). See also Sadler, Criminal Procedure in Pennsylvania, 2d Ed. §§ 561, 562, 563. He should in my judgment take an active role in the trial process where the circumstances warrant it; and, when it is apparent to him that the remarks of counsel are improper or bordering on the improper, should sua sponte call counsel to side bar, caution him or her against the line of argument being pursued, and where necessary, give appropriate cautionary instructions.
Commonwealth v. Barren, 273 Pa.Superior Ct. 492, 417 A.2d 1156, 1161-1162 (1979) (LIPEZ, J., concurring) (footnote omitted).

These observations apply as well to a witness’s remarks as to a prosecutor’s.

Even assuming Richardson is applicable to this case despite its crucial factual difference, the majority’s result does not follow. Although in Richardson the Court suggested that the prosecutor’s intent was relevant, it did not hold, as the majority here attempts to do, that good intent on the part of a prosecutor would “save” an otherwise prejudicial answer. Nor could such a holding be accepted, for it would be inconsistent with considerations of fundamental fairness, which dictate that we not expand the exceptions that already exist to the rule against admitting evidence of an accused’s prior criminal activity. As the Supreme Court has said:

Evidence of prior criminal activity is probably only equalled by a confession in its prejudicial impact upon a jury. Thus, fairness dictates that courts should be ever vigilant to prevent the introduction of this type of evidence under the guise that it is being offered to serve some purpose other than to demonstrate the defendant’s propensity to commit the charged crime. An additional reason why we caution trial courts against being innovative in carving out new exceptions to the rule is that evidence of prior criminal activity requires the accused to answer additional charges which were not included in the indictment returned against him. Where the testimony is admissible under the traditional exceptions counsel for an accused can anticipate its introduction and thus prepare a response. Where a novel exception provides the basis for the entry of such testimony, the appellant cannot reasonably be expected to be prepared to meet it. In the latter case, serious due process concerns are raised. Commonwealth v. Spruill, 480 Pa. 601, 606, 391 A.2d 1048, 1050-1051 (1978).

Finally, there is no on-the-record indication of what the prosecutor’s intent really was in asking Bevan the question. All we have is the Commonwealth’s brief, which says that the district attorney “sought only to minimize the harmful effect of any possible impeachment of Bevan by the defense. ...” Appellee’s Brief at 17. I agree with the majority that this explanation is “not unreasonable,” but it remains mere speculation, and therefore irrelevant. As a court, we may consider only such facts as are of record; we “may not consider those interjected by briefs of counsel.” Dile v. Dile, 284 Pa.Superior Ct. 459, 426 A.2d 137 (1981); Marine Bank v. Huhta, 279 Pa.Superior Ct. 130, 420 A.2d 1066 (1980); Gee v. Eberle, 279 Pa.Superior Ct. 101, 420 A.2d 1050 (1980). We have been emphatic that this “essential principle of appellate review” is to be adhered to without exception, even when the asserted fact in one party’s brief goes unchallenged:

Of course, it is an absolute rule that on appellate review, a court may not consider facts outside the record. Commonwealth v. Young, 456 Pa. 102, 115 & n. 15, 317 A.2d 258, 264 & n. 15 (1974) (citing numerous cases). Unfortunately, administration of this salutary rule has been somewhat erratic. For example, less than six weeks after Commonwealth v. Young, supra, our Supreme Court filed an opinion considering a summary of facts alleged in the appellee’s brief, even though there was nothing in the record concerning these facts, because the appellant had “not substantially challenged that summary in any of his filings.” State Dental Council and Examining Board v. Pollock, 457 Pa. 264, 271, 318 A.2d 910, 914 (1974). Other cases also contain vague and confusing references to apparent departures from the rule on an ad hoc basis. Such standardless deviation from an essential principle of appellate review quickly creates confusion, and eventually chaos. It is thus with some relief that we note that last year in Commonwealth v. Quinlan, 488 Pa. 255, 258, 412 A.2d 494, 496 (1980), our Supreme Court unanimously condemned consideration by an appellate court of material outside the record.
Since allegations in a brief, even when not “substantially challenged,” are not part of the record, Quinlan necessarily overrules State Dental Council and Examining Board v. Pollock, supra, to the extent that it allows consideration of such allegations. We shall therefore not base our disposition on the unchallenged assertions in appellant’s brief, but rather on what is in the record. Commonwealth v. Rini, 285 Pa.Superior Ct. 475, 427 A.2d 1385, 1389-90 (1981) (footnotes omitted).

Since here the record is devoid of an explanation of why the question was asked, we are left with a prejudicial statement concerning appellant’s past criminal activity, with no cautionary instructions to guide the jury or reduce the prejudice to appellant. We have never encountered such a case and affirmed, and we should not now.

The judgment of sentence should be reversed and the case remanded for new trial.

      . Williams also involved the question whether a prejudicial remark was cured by cautionary instructions.

      . Failure to ask for cautionary instructions may constitute a waiver when the remark in question relates to an accused’s silence at trial or at the time of the arrest, Commonwealth v. Zellner, 268 Pa.Superior Ct. 59, 407 A.2d 436 (1979). However, this is not the case when the remark relates directly to an accused’s past criminal conduct, which the Supreme Court has suggested is tantamount to a confession in the high degree of prejudice it provokes. See Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978).

      . Unlike the majority, I do not think Bevan’s statement, and the inference it so clearly raised, can fairly be characterized as a “minor remark” to bring it within the holding of Commonwealth v. Jackson, 248 Pa.Superior Ct. 420, 375 A.2d 168 (1977).


author: CAVANAUGH, Judge:

text:
    444 A.2d 124
    Kenneth O. BENDER, Jr., Appellant v. Theresa A. BENDER.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1980.
    Filed April 12, 1982.

      William J. Litvin, West Chester, for appellant.
    Cynthia J. Rosenthal, West Chester, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

Appellant Kenneth Bender seeks review of an order indefinitely suspending appellee Theresa Bender’s obligation to provide support for their nine-year-old daughter, Heather Christina Bender. Mrs. Bender successfully argued before the court below that her obligation to support Heather should be suspended while she remains at home with her infant daughter, Nicole Ginning Brown. For the reasons discussed below, we remand the case for a further evidentiary hearing.

At the time of the hearing below, the parties were in the process of getting a divorce. Mr. Bender had been awarded permanent custody of Heather, the parties’ only child. He initiated support proceedings against Mrs. Bender in December, 1978. The court conducted a full hearing during which the parties presented evidence of their respective earning capacities. On April 16, 1979, the court entered an order directing Mrs. Bender to pay support for Heather in the amount of $25.00 per week effective retroactively to December 4, 1978, the date the complaint was filed. Because Mrs. Bender was approximately eight months pregnant at the time of the hearing, the support order was made effective only until January 22, 1979 at which time it was suspended until six weeks following the birth of her baby. The order provided that following the six week hiatus, the payments were to be resumed at the weekly rate of $16, plus $4 per week towards arrearages. No appeal was taken from this order and appellee has made no payments thereon.

Nicole Ginning Brown was born on May 13, 1979. Mr. Bender is not the father of this child. According to the terms of the original order, Mrs. Bender’s obligation to pay support for Heather would have recommenced on June 26, 1979. Mrs. Bender made a decision at some point not to return to work after Nicole’s birth but rather to remain at home to care for her new baby. On November 9, 1979, she filed a petition to suspend the support order. Mr. Bender then filed a petition seeking to have Mrs. Bender held in contempt for failing to pay pursuant to the order. Following a hearing on both petitions, the court, on April 19, 1980, entered an order suspending indefinitely Mrs. Bender’s obligation to pay support for Heather. The court based its decision upon a finding that Mrs. Bender was entitled to remain at home to nurture Nicole.

The parties, as well as the court below, concluded that the outcome of the case depended upon a determination of whether the “nurturing parent doctrine” established by this court in Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977) applies in this case. In Wasiolek, the lower court ordered a mother of three minor children to seek employment so that she could contribute to the support and maintenance of the children. The mother, who had primary custody of the children, felt that her presence in the home was more important to the children than the money she would be able to contribute if she was gainfully employed. We agreed and reversed the order, thus carving out an exception to the general rule that a mother has an obligation of support measured not by her actual earnings but rather by her earning capacity. We stated in Wasiolek that:

[T]he purpose of a support order is the furtherance of the welfare and best interests of the child for whom it is entered. Obviously, a court cannot ignore the substantial nonmonetary contributions made by a non-working spouse. It would surely be ironic if by its support order a court were to dictate that a parent desert a home where very young children were present when the very purpose of the order is to guarantee the welfare of those same children. Such an order would ignore the importance of the nurture and attention of the parent in whose custody the children have been entrusted and would elevate financial well-being over emotional well-being.

251 Pa.Super. at 112-13, 380 A.2d at 402-03. (citations omitted).

Mr. Bender argues for a restrictive interpretation of Wasiolek, asking us not to apply the “nurturing parent doctrine” where the child to be “nurtured” is not the subject of the support order. Mrs. Bender, on the other hand, contends that the principles articulated in Wasiolek are applicable even though Nicole is not the subject of the support order. The lower court evidently felt that Wasiolek controlled its disposition of the instant case. The court stated in its opinion that “Wasiolek established the so-called ‘nurturing parent’ doctrine, in holding that the earning capacity of a mother who chooses to stay home with her child is not a factor in determining support obligations. . . . We believe that this doctrine, in this case, obliges us to grant the relief which Mrs. Bender seeks.”

We believe the lower court’s interpretation of Wasiolek is erroneous. We did not there establish an absolute rule that an earning capacity can not be imputed to a parent who chooses to stay home with a minor child. Rather, we held that a court should consider a parent’s desire to stay home to nurture minor children and, in appropriate cases, excuse such a nurturing parent from contributing support payments. This court has always recognized that:

“No two support cases are ever alike. Circumstances, although similar in some respect, may differ materially in other respects. It is for the court to consider all the circumstances. It is difficult for an appellate court to state rules equally applicable to all cases.”

Commonwealth ex rel. Kaplan v. Kaplan, 236 Pa.Super. 26, 28, 344 A.2d 578, 579 (1975), citing Hecht v. Hecht, 189 Pa.Super. 276, 150 A.2d 139 (1959). In fact, we clearly stated in Wasiolek that we were not promulgating an absolute rule.

Of course, a court is not strictly bound by the nurturing parent’s assertion that the best interest of the child is served by the parent’s presence in the home. It is for the court to determine the child’s best interest. But the court must balance several factors before it can expect the nurturing parent to seek employment. Among those factors are the age and maturity of the child; the availability and adequacy of others who might assist the custodian-parent; the adequacy of available financial resources if the custodian-parent does remain in the home. We underscore that, while not dispositive, the custodian-parent’s perception that the welfare of the child is served by having a parent at home is to be accorded significant weight in the court’s calculation of its support order.

251 Pa.Super. at 113-14, 380 A.2d at 403. (Emphasis added).

The court below failed to consider the factors discussed in Wasiolek. In fact the court sustained objections to questions asked by Mrs. Bender’s counsel in an attempt to elicit information as to Mr. Bender’s ability, to support Heather on his earnings alone. The court held that evidence of Mr. Bender’s earnings was not relevant to the issue of whether Mrs. Bender’s support obligation should be suspended. T. 107(a)-08(a). On the contrary, Mr. Bender’s ability to support Heather is, according to Wasiolek, a major factor to be considered in determining whether Mrs. Bender should be permitted to remain at home with Nicole. Therefore the court on remand should consider this evidence. It should also consider Nicole’s age and “the availability and adequacy” of people who might assist Mrs. Bender in caring for Nicole should Mrs. Bender be required to return to work in order to provide support for Heather. In addition to these factors which are specifically enunciated in Wasiolek, the court on remand may wish to consider the fact that the child to be “nurtured” is not the subject of the support order, although we do not feel that this fact necessarily removes this case from the application of the “nurturing parent doctrine.”

We are aware that the custody and support of Heather has been a troublesome matter for the trial court and this court, see Bender v. Bender, 261 Pa.Super. 12, 395 A.2d 279 (1978). However, we are fearful that the decision of the trial court may signal a revitalization of the tender years doctrine which has been discontenanced. It is important, therefore, that the court on remand consider all the circumstances, particularly those discussed in Wasiolek, before suspending Mrs. Bender’s support obligation. Mrs. Bender’s desire to stay home with Nicole is just one of several factors relevant to a determination of whether she should be required to provide financial support for Heather.

Case remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

      .. Mrs. Bender, due to her pregnancy, had left her job as a licensed practical nurse on January 22, 1979.

      . See Commonwealth ex rel. Kaplan v. Kaplan, 236 Pa.Super. 26, 344 A.2d 578 (1975).