author: OLSZEWSKI, Judge:

text:
    666 A.2d 710
    Pasquale P. GIORDANO and Maryann Giordano, His Wife v. A.C. & S. INC., Anchor Packing Company, Armstrong World Industries Inc., Asbestos Products Mfg. Corporation, Carey Canada, Celotex Corporation, Certain-Teed Corporation, Di Distributors Inc., F/K/A Delaware Insulation Co., Eagle Picher Industries Inc., Fibreboard Corporation, GAF Corporation, Garlock Incorporated, H & A Construction, Keene Corporation, National Gypsum, Owens-Corning Fiberglas, Owens Illinois Inc., Pfizer Inc., Pittsburgh Corning Corporation, H.K. Porter Company Inc., T & N PLC., Raymark Industries Inc., Rock Wool Manufacturing Co., Smith & Kanzler, Sprayon Research Corporation, Southern Textile Corporation, U.S. Mineral Products, United States Gypsum Company, W.R. Grace Company, John Crane Houdaille Inc., A/K/A Crane Packing Company, Amchem Products Inc., Atlas Turner Ltd., Foster-Wheeler Corporation, Georgia-Pacific Corporation, Dana Corporation, Basic Incorporated, J.W. Roberts Ltd., Spray Craft Inc., American Energy Products Inc., and Babcock & Wilcox. Appeal of OWENS-CORNING FIBERGLAS CORPORATION Edgar S. BOYER and Dolores M. Boyer, His Wife v. A.C. & S. INC., Anchor Packing Company, Armstrong World Industries Inc., Asbestos Products Mfg. Corporation, Carey Canada, Celotex Corporation, Certain-Teed Corporation, Di Distributors Inc., F/K/A Delaware Insulation Co., Eagle Picher Industries Inc., Fibreboard Corporation, GAF Corporation, Garlock Incorporated, H & A Construction, Keene Corporation, National Gypsum, Owens-Corning Fiberglas, Owens Illinois Inc., Pfizer Inc., Pittsburgh Corning Corporation, H.K. Porter Company Inc., T & N PLC., Raymark Industries Inc., Rock Wool Manufacturing Co., Smith & Kanzler, Sprayon Research Corporation, Southern Textile Corporation, U.S. Mineral Products, United States Gypsum Company, W.R. Grace Company, John Crane Houdaille Inc., A/K/A Crane Packing Company, Amchem Products Inc., Atlas Turner Ltd., Foster-Wheeler Corporation, Georgia-Pacific Corporation, Dana Corporation, Basic Incorporated, J.W. Roberts Ltd., Spray Craft Inc., American Energy Products Inc., and Babcock & Wilcox Appeal of OWENS-CORNING FIBERGLAS CORPORATION Nicholas Theodore DECERCHIO and Bernice C. Decerchio, His Wife v. A.C. & S. INC., Amchem Products Inc., American Energy Products Inc., Anchor Packing Company, Armstrong World Industries Inc., Asbestos Products Mfg. Corporation, Atlas Turner Ltd., Babcock & Wilcox, Basic Incorporated, Carey Canada, Celotex Corporation, Certain-Teed Corporation, Dana Corporation, Di Distributors Inc., F/K/A Delaware Insulation Co., Eagle Picher Industries Inc., Fibreboard Corporation, Foster-Wheeler Corporation, GAF Corporation, Garlock Incorporated, Georgia Pacific Corporation, H & A Construction, H.K. Porter Company, Inc., J.W. Roberts Ltd., John Crane Houdaille Inc., A/K/A Crane Packing Company, Krane Corporation, National Gypsum, Owens-Corning Fiberglas, Owens Illinois Inc., Pfizer Inc., Pittsburgh Corning Corporation, Raymark Industries Inc., Rock Wool Manufacturing Co., Smith & Kanzler, Southern Textile Corporation, Spray Craft Inc., Sprayon Research Corporation, T & N PLC., U.S. Mineral Products, United States Gypsum Company and W.R. Grace Company Appeal of OWENS-CORNING FIBERGLAS CORPORATION.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1995.
    Filed Oct. 17, 1995.

      W. Matthew Reber, Wynnewood, for appellant.
    Michael P. Kutzer, Philadelphia, for Giordano, Boyer & Decerchio, appellees.
    Before KELLY, FORD ELLIOTT, and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Pasquale Giordano, Edgar Boyer and Nicholas DeCerchio have several things in common: they all inhaled asbestos dust from Owens-Corning products in the course of their employment as steamfitters; they developed pulmonary asbestosis and asbestos-related pleural disease; and despite their cigarette habits, a jury saw fit to award them damages in their suits against Owens-Corning. As is common for asbestos litigation, their cases were consolidated in a reverse bifurcated trial, where the issue of damages was tried first. The jury awarded between $150,000 to $275,000 per plaintiff for past and projected future medical expenses, and non-economic damages such as pain, humiliation, embarrassment, and fear of future progression of their asbestosis. The jury also turned down the plaintiffs’ loss of consortium claims. The trial court denied Owens-Corning’s post-trial motions for JNOV, new trial, or remittitur, and awarded appropriate delay damages to the plaintiffs.

After the damages trial, the plaintiffs accepted Owens-Corning’s stipulation that it was responsible for one-tenth of their damages. This stipulation obviated the need for a liability trial, and the plaintiffs now have judgments against Owens-Corning for between roughly $28,000 and $50,000. All issues being settled, Owens-Corning appealed to this Court. The trial court was apparently unaware of the liability stipulation, and wrote an opinion urging us to quash the appeals as interlocutory. Because all the issues are settled, the appeals are properly before us. Moreover, because Owens-Corning raises mostly questions of law, our review is not hampered by the lack of a trial court opinion.

Owens-Corning first argues that the trial court should not have allowed plaintiffs to recover damages for the possibility that their asbestosis might get worse, and their accompanying fear that it would. At trial, the plaintiffs’ medical experts opined that asbestosis tends to get progressively worse over time, but the precise course of progression could not be accurately predicted for any given case. Owens-Corning contends that this testimony was too speculative to permit the jury to award damages for the possibility of future progression of plaintiffs’ asbestosis.

We disagree. It is well settled that once an asbestos-related disease becomes symptomatic, it is compensable. Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993), alloc. granted, 539 Pa. 651, 651 A.2d 539 (1994). To fully compensate a plaintiff for an asbestos-related injury that is likely to get progressively worse, a jury may award for future harm. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). The prognosis need not be made with the same degree of certainty that is required for causation. Id. at 162-64, 494 A.2d at 1093. Owens-Corning argues that the plaintiffs’ medical experts could not meet even this lower threshold of certainty, so their testimony should not have been admitted. True, the experts were only able to testify as to the progression of the typical case of asbestosis, and could not predict what might happen to these individual plaintiffs. It is not improper to use statistical expectations in assessing damages, however. No expert could predict how long each plaintiff would live with any degree of certainty, but Owens-Corning raised no objection to the use of actuarial tables to estimate the plaintiffs’ life expectancies. R.R. 141-42.

Nor do we find that this case involves any violation of the rule laid down in Marinari v. Asbestos Corp., Ltd., that juries may only award damages for the “natural, predictable progression” of an asbestos-related disease. 417 Pa.Super. 440, 443-45, 612 A.2d 1021, 1023 (1992) (en banc). The trial court used this precise language in its charge, and further instructed the jury that their verdict must be based upon the evidence, and not mere conjecture or speculation. R.R. 149-50. The same standards applied to the jury’s consideration of plaintiffs’ fear that their diseases would progress. The verdict was not broken down into categories, so we do not know if the jury even awarded anything for future progression of the disease, or fear of it. An assessment of the future likelihood and extent of a disease’s progression is a quintessential fact question, and like the trial court, we have no basis for rejecting a properly instructed jury’s finding on this issue.

Owens-Corning next argues that the trial court erred by instructing the jury that they could award damages for embarrassment or humiliation. The trial court mentioned embarrassment and humiliation in the context of explaining what goes into the non-economic component of damages: e.g., pain, suffering, “loss of life’s pleasures, humiliation, embarrassment and anything else that might come under the question of suffering.” R.R. 146. This is a proper definition of the concept behind non-economic damages: how did the tort make the plaintiffs life worse? Economic components of damages such as medical expenses and lost wages can be quantified. Because we cannot measure pain and lost pleasure in precise units, we must cast a broad net to properly apprise the jury of what it is they must reduce to a dollar value. Plaintiffs’ asbestos-related breathing problems prevented them from socializing and forced family and friends to take over tasks they used to do — this could be considered embarrassing, or even humiliating to some degree. The instruction was therefore proper.

Finally, Owens-Corning argues that they should get a new trial because the verdicts were shockingly high. Since the trial court denied this claim in post-trial motions, it was obviously not shocked by the size of the plaintiffs’ verdicts. Moreover, the trial court was also unaware that Owens-Corning would pay only one-tenth of those verdicts; hence, the verdicts which failed to shock the trial court were a full order of magnitude greater than the plaintiffs’ current judgments against Owens-Corning.

We have observed that when a trial court refuses a new trial because it fails to see “injustice shining forth like a beacon” from the verdict, an appellate court will be hard pressed indeed to disagree. “Review of a cold record acts much like the inverse square law of light propagation — any beacon of injustice will necessarily appear even dimmer to our eyes than it was to the trial court’s.” Matheny v. West Shore Country Club, 436 Pa.Super. 406, 408, 648 A.2d 24, 25 (1994), alloc. denied, 540 Pa. 601, 655 A.2d 990 (1995). Here, we must take a beacon that was too dim for the trial court to see, reduce its luminosity by a full order of magnitude, and then apply the inverse square law. Needless to say, we also fail to see injustice shining forth like a beacon from these small judgments, and find no abuse of the trial court’s discretion.

Affirmed.

      . These appeals were filed before judgments were entered on the trial court docket, and are thus premature. See Pa.R.A.P. 301. Pursuant to Pa.R.A.P. 902, appellant’s counsel was directed to praecipe the trial court for entry of judgment within ten days. Appellants have complied, and the judgments have been entered. Hence under Pa.R.A.P. 905(a) appellant's notices of appeals will be treated as having been filed after the entry of judgments.

      . We think it proper to consider the question of excessiveness from the perspective of the size of the judgments which Owens-Corning must pay, not the size of the verdicts rendered. Asbestos cases are based on products liability theory, which seeks to best apportion the cost of injuries caused by defective products on the manufacturers who can and should bear those costs. Even if we were to focus on the size of the verdicts, though, we would still see no abuse of discretion or cause for new trials. See Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992); Matheny, supra.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    666 A.2d 714
    COMMONWEALTH of Pennsylvania v. Darrel NELSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 19, 1995.
    Filed Oct. 19, 1995.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Scott A. Bradley, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before ROWLEY, President Judge, and WIEAND and KELLY, JJ.
   WIEAND, Judge:

On April 28, 1994, Darrel Nelson entered pleas of nolo contendere to forty-one (41) drug charges, including ten (10) counts of delivery of controlled substances, twelve (12) counts of possession with intent to deliver controlled substances, fifteen (15) counts of possession of controlled substances, and four (4) counts of possession of drug paraphernalia. Following the preparation of a pre-sentence report, Nelson was sentenced, on June 24, 1994, to serve an aggregate term of imprisonment for not less than twelve and one-half (12 and % years nor more than thirty (30) years, and to pay a fine of $250,000. A motion for reconsideration of sentence was denied, and this appeal followed. On direct appeal from the judgment of sentence, Nelson argues that: (1) his trial counsel was ineffective for failing to advise him, prior to his entry of pleas of nolo contendere, of a possible due process defense based upon outrageous police conduct; and (2) his sentence was manifestly excessive. After careful review, we affirm the judgment of sentence.

According to the factual summary presented by the Commonwealth prior to the acceptance of appellant’s pleas of nolo contendere, appellant was the subject of an undercover police investigation conducted in Pittsburgh from June 8, 1993 through September 17, 1993. Officer Brian Fleming of the City of Pittsburgh Police Department, who was working in an undercover capacity, made ten purchases of heroin from appellant, the first four of which involved relatively small quantities. On June 8, appellant sold Fleming a gram of heroin for $550. On June 10, appellant provided another gram of heroin to Fleming. This was purportedly of higher quality and sold for $600. On June 16, after entering and exiting an apartment. building in the 2500 block of Chauncey Drive, appellant produced a gram of heroin encased in a blue balloon which he had been carrying in his mouth. This he sold to Fleming for $550. And, on August 20, appellant provided Fleming with two grams of heroin in return for $1,000 and a promise to pay an additional $100.

On August 26, Fleming requested three grams of heroin. Appellant directed Fleming to meet him on the city’s North Side. Outside a row house located at 903 Kirkbride Street, Fleming observed appellant and gave him $1,600. Appellant took the money and directed Fleming to meet him at the side door of the building, where he gave the heroin to the officer. During this transaction, appellant provided six grams of heroin instead of the three grams requested by Fleming. Appellant told Fleming that he could owe appellant $1,850 for the additional three grams being fronted.

On August 30, after paying appellant the $1,850 owed from the prior transaction, Fleming requested a quarter ounce of heroin. Appellant responded that a quarter ounce would cost three or four thousand dollars. When Fleming indicated that he would have to get the money, he and appellant agreed to meet later. When they did meet again, appellant gave Fleming a half ounce of heroin, along with a white plastic bottle containing quinine, which appellant said was to be used for cutting the heroin. Fleming handed appellant $3,000, and appellant told him that he would owe an additional $3,200. At this time, appellant mentioned that he would soon have a couple kilograms of cocaine available for sampling.

On September 2, Fleming knocked on the door of apartment number 3 at 2100 Elmore Square in an attempt to meet appellant and pay him the money owed. After a delay, appellant appeared, and indicated that he had been eating. Fleming told appellant that he wanted to purchase more heroin. Appellant directed Fleming to drive him to the corner of Morgan and Webster Streets in the Hill District. There, appellant got out of the car and walked away, only to return a few minutes later with a bottle of quinine and two bottles of Dormin, an over-the-counter sleep preparation which, appellant said, was better than quinine for cutting heroin. Appellant said that he had paid $50 for each bottle of Dormin, but that he was charging Fleming $75 because Dormin was very difficult to buy in the Pittsburgh area and he was obtaining it from Detroit or Chicago. Appellant instructed Fleming to drive him to 903 Kirkbride Street, where appellant exited the vehicle, and entered the residence. Upon returning to the vehicle, he handed a half ounce of heroin to Fleming.

On September 7, after Fleming had paid appellant all amounts owing, appellant fronted him seven grams of heroin and a bottle of quinine. Appellant indicated that the kilograms of cocaine which he had hoped to get were of poor quality and thus, he had not purchased any of them. Appellant also informed Fleming that he would be doing some jail time for federal tax evasion, but that his wife would take care of supplying the officer.

On September 8, appellant paged Fleming five times. After Fleming returned the call, appellant indicated that he needed $4,000 of the money which Fleming owed to cover the cost of a new shipment of heroin. They met subsequently and Fleming gave appellant the money requested.

On September 15, appellant provided Fleming with an ounce of heroin and indicated that he could provide all the heroin the officer wanted. On September 17, Fleming gave appellant $9,000 towards payment of his outstanding debt. Appellant told Fleming about a friend in Florida who was supplying him with cocaine, and suggested that $1,300 in profits could be made from the sale of an ounce of cocaine if the officer was interested. Appellant also handed Fleming a cellophane candy bag containing two one-half ounce packages of heroin and a quarter ounce package of heroin. At that point, Officer Fleming signaled to surveillance officers that the transaction had. taken place, and appellant was placed under arrest.

After appellant’s arrest, seven search warrants were executed and numerous items were seized from his several residences, including crack cocaine, $6,600 in cash, bottles of Dormin and quinine, baggies with residue, and various other items of drug paraphernalia related to the distribution of controlled substances. All of the controlled substances obtained from appellant were submitted to the Allegheny County Crime Lab and tested positive for the presence of heroin or cocaine.

Appellant argues that the police improperly delayed arresting him, in order to amass a number of charges against him and to subject him to progressively longer mandatory minimum sentences. The applicable sentencing provisions provide enhanced penalties and mandatory minimum sentences for each transaction involving heroin weighing over two grams. See: 18 Pa.C.S. § 7508. Instantly, the first four deliveries by appellant to officer Fleming involved quantities under two grams. Therefore, if appellant had been arrested before the fifth transaction, he would not have become subject to the imposition of mandatory minimum sentences. Appellant argues, therefore, that the delay in arresting him constituted outrageous government conduct; and, if he had been aware of it, he never would have pleaded nolo contendere. He contends that trial counsel was ineffective for failing to apprise him of this defense, which led to his entry of unknowing pleas.

The Commonwealth, on the other hand, asserts that the police were justified in continuing the investigation beyond its early stages in order to build a relationship with appellant and to ascertain the extent of appellant’s drug trafficking enterprise. Indeed, on August 26, 1993, the date of the fifth delivery, appellant offered to “front” heroin to the officer and delivered to him six, instead of the three grams which Fleming had requested, thus indicating that appellant was able to provide heroin without requiring immediate cash payment. During the course of the three month investigation, appellant increasingly “fronted” larger quantities of heroin and introduced the possibility of cocaine for sale.

In terms of its effect upon a case, a plea of nolo contendere is treated the same as a guilty plea. Commonwealth v. Boatwright, 404 Pa.Super. 75, 83, 590 A.2d 15, 19 (1991). By entering a plea of nolo contendere, a defendant waives “all defects and defenses except those concerning the jurisdiction of the court, legality of sentence, and validity of plea.” Commonwealth v. Johnson, 319 Pa.Super. 463, 474, 466 A.2d 636, 642 (1983). See also: Commonwealth v. Coles, 365 Pa.Super. 562, 569, 530 A.2d 453, 457 (1987). Therefore, “[o]nce a defendant has entered a plea of [nolo contendere], it is presumed that he was aware of what he was doing, and the burden of proving involuntariness is upon him.” Common wealth v. West, 336 Pa.Super. 180, 186, 485 A.2d 490, 493 (1984). See also: Commonwealth v. Brown, 242 Pa.Super. 240, 244, 363 A.2d 1249, 1251 (1976).

“In order for appellant to prevail on a claim of ineffectiveness [of counsel], he must demonstrate that: (1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel’s ineffectiveness prejudiced him.” Commonwealth v. Blount, 538 Pa. 156, 163, 647 A.2d 199, 203 (1994). See also: Commonwealth v. Pierce, 515 Pa. 153, 158-159, 527 A.2d 973, 975 (1987). “Where an allegation of ineffective assistance of counsel is made in connection with the entry of a plea of [nolo contendere], such allegation ‘will serve as a basis for relief only if the ineffectiveness caused appellant to enter an involuntary or unknowing plea.’” Commonwealth v. Fluharty, 429 Pa.Super. 213, 217, 632 A.2d 312, 314 (1993), quoting Commonwealth v. Chumley, 482 Pa. 626, 641, 394 A.2d 497, 504 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979). See also: Commonwealth v. Owens, 321 Pa.Super. 122, 130, 467 A.2d 1159, 1163 (1983).

Instantly, appellant alleges that he entered unknowing pleas of nolo contendere to numerous drug offenses because his trial counsel failed to apprise him that the police involvement in continually making undercover purchases of narcotics from him, in order to subject him to enhanced penalties, was so outrageous as to violate due process. Appellant argues, therefore, that his pleas were the result of ineffectiveness on the part of trial counsel in failing to assert an available defense.

With respect to allegations that police conduct was so outrageous as to offend due process, the Superior Court has observed as follows:

It is correct, as appellant argues, that the Superior Court held in Commonwealth v. Mathews, 347 Pa.Super. 320, 500 A.2d 853 (1985), that “police involvement in criminal activity may be so outrageous that a prosecution will be barred on due process grounds.” Id., 347 Pa.Superior Ct. at 321, 500 A.2d at 854. See: Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). See also: Commonwealth v. Bonace, 391 Pa.Super. 602, 607, 571 A.2d 1079, 1082 (1990); Commonwealth v. Delligatti, 371 Pa.Super. 315, 321, 538 A.2d 34, 37 (1988). “The question whether government conduct [has been] so outrageous as to constitute a violation of due process is a question of law to be determined by the court, not the jury.” United States v. Engler, 806 F.2d 425, 430 (3d Cir.1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987). See also: United States v. Swiatek, 819 F.2d 721, 726 (7th Cir.1987), cert. denied, 484 U.S. 903, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987); United States v. Salazar, 720 F.2d 1482, 1488 (10th Cir.1983), cert. denied, 469 U.S. 1110, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985); United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir.1978); United States v. Quinn, 543 F.2d 640, 648 (8th Cir.1976); Commonwealth v. Lindenmuth, 381 Pa.Super. 398, 403, 554 A.2d 62, 64 (1989). Before the conduct of law enforcement officials or government agents will be found to have violated due process, however, it must be shown that police conduct was “ ‘so grossly shocking and so outrageous as to violate the universal sense of justice.’” United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983), quoting United States v. Ryan, 548 F.2d 782, 789 (9th Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). See also: United States v. Ofshe, 817 F.2d 1508, 1516 (11th Cir.1987), cert. denied, 484 U.S. 963, 108 S.Ct. 451, 98 L.Ed.2d 391 (1987); Owen v. Wainwright, 806 F.2d 1519, 1521 (11th Cir.1986), cert. denied, 481 U.S. 1071, 107 S.Ct. 2466, 95 L.Ed.2d 875 (1987). The establishment of a due process violation “generally requires ‘proof of government overinvolvement in the charged crime and proof of the defendant’s mere passive connection to the government orchestrated and implemented criminal activity.’” United States v. Duvall, 846 F.2d 966, 973 (5th Cir.1988), quoting United States v. Nations, 764 F.2d 1073, 1077 (5th Cir.1985). Moreover, for due process to bar a conviction, the government’s involvement in the commission of the crime “must be malum in se or amount to the engineering and direction of the criminal enterprise from beginning to end.” United States v. Citro, 842 F.2d 1149, 1153 (9th Cir.1988), cert. denied, 488 U.S. 866, 109 S.Ct. 170, 102 L.Ed.2d 140 (1988). See also: United States v. Williams, 791 F.2d 1383, 1386 (9th Cir. 1986), cert. denied, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986); United States v. Gonzales, 539 F.2d 1238, 1239-1240 (9th Cir.1976).
Review of federal decisions reveals that the conduct of the government in conducting criminal investigations will be found to violate due process “ ‘only in the rarest and most outrageous circumstances.’ ” United States v. Arteaga, 807 F.2d 424, 426 (5th Cir.1986), quoting United States v. Yater, 756 F.2d 1058, 1066 (5th Cir.1985), cert. denied, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 226 (1985). See also: United States v. Rubio, 834 F.2d 442, 450 n. 6 (5th Cir.1987); United States v. Haimomtz, 725 F.2d 1561, 1577 (11th Cir.1984), cert. denied, 469 U.S. 1072, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984). Thus, the Court of Appeals for the Third Circuit has said:
[A] successful due process defense must be predicated on intolerable government conduct which goes beyond that necessary to sustain an entrapment defense.... We must necessarily exercise scrupulous restraint before we denounce law enforcement conduct as constitutionally unacceptable; the ramifications are wider and more permanent than when only a statutory defense is implicated.
United States v. Jannotti, 673 F.2d 578, 607 (3d Cir.1982), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). See: Hampton v. United States, supra 425 U.S. at 495 n. 7, 96 S.Ct. at 1653 n. 7, 48 L.Ed.2d at 122 n. 7 (Powell, J. Concurring) (“Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.”). See also: United States v. Ward, 793 F.2d 551, 553-555 (3d Cir.1986); United States v. Gambino, 788 F.2d 938, 945 n. 6 (3d Cir.1986), cert. denied, 479 U.S. 825, 107 S.Ct. 98, 93 L.Ed.2d 49 (1986); United States v. Beverly, 723 F.2d 11 (3d Cir.1983).

Commonwealth v. Benchino, 399 Pa.Super. 521, 525-527, 582 A.2d 1067, 1069-1070 (1990). See also: Commonwealth v. Mance, 539 Pa. 282, 291-293, 652 A.2d 299, 303-305 (1995).

The courts of this Commonwealth have not addressed the type of police conduct which appellant claims the police engaged in in this case. Several federal appellate courts, however, have discussed and analyzed this type of case and have described the issue as one of “sentencing entrapment” or “sentencing factor manipulation.” “Sentencing entrapment [is] ‘ “outrageous official conduct [which] overcomes the will of an individual predisposed only to dealing in small quantities [of illicit drugs]” for the purpose of increasing the amount of drugs ... and the resulting sentence of the entrapped defendant.’” United States v. Barth, 990 F.2d 422, 424 (8th Cir.1993), quoting United States v. Rogers, 982 F.2d 1241, 1245 (8th Cir.1993), cert. denied, — U.S. -, 113 S.Ct. 3017, 125 L.Ed.2d 706 (1993). The First Circuit Court has observed:

It cannot be gainsaid that the sentencing guidelines, by their very nature, may afford the opportunity for sentencing factor manipulation, particularly in sting operations. We can foresee situations in which exploitative manipulation of sentencing factors by government agents might overbear the will of a person predisposed only to committing a lesser crime. This danger seems especially great in cases where the accused’s sentence depends in large part on the quantity of drugs or money involved. There is, however, another side to the story. By their nature, sting operations are designed to tempt the criminally inclined, and a well-constructed sting is often sculpted to test the limits of the target’s criminal inclinations. Courts should go very slowly before staking out rules that will deter government agents from the proper performance of their investigative duties.

United States v. Connell, 960 F.2d 191, 196 (1st Cir.1992). See also: United States v. Lenfesty, 923 F.2d 1293, 1300 (8th Cir.1991); United States v. Stuart, 923 F.2d 607, 613-614 (8th Cir.1991), cert. denied, 499 U.S. 967, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991).

After careful review, we are satisfied that appellant’s claim of outrageous conduct on the part of the police is lacking in arguable merit. The government did not violate due process merely by employing an undercover operative. Commonwealth v. Benchino, supra at 528, 582 A.2d at 1070. While it may be true that police could have arrested appellant after any one of the several transactions, an early arrest would have failed to reflect accurately the level of appellant’s participation in the local drug trafficking. Here, the police did not engineer, direct or become overinvolved in appellant’s drug trafficking operation. Commonwealth v. Benchino, supra at 526, 582 A.2d at 1069. There is nothing about the investigation to suggest that police conduct “violated fundamental fairness, shocking to the universal sense of justice, mandated by the Due Process Clause of the Fifth Amendment.” Commonwealth v. Delligatti, 371 Pa.Super. 315, 322, 538 A.2d 34, 37-38 (1988). See also: United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366, 373 (1973). The police reasonably and justifiably set out to build a relationship with appellant, in order to ascertain the nature and scope of his drug trafficking enterprise. By doing so, they were able to demonstrate that appellant was not merely a “nickel and dime” dealer, but a high volume drug trafficker in the Pittsburgh area. Appellant was in no way forced or coerced to continue selling drugs to the undercover police agent. He was merely afforded the opportunity to do so. Under the circumstances of the instant case, therefore, we hold that the conduct of the police did not rise to the level' of outrageous conduct which would preclude appellant’s prosecution for all of the drug transactions in which he engaged.

Since appellant’s due process rights were not violated by police conduct, appellant’s counsel cannot be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Pierce, supra at 160, 527 A.2d at 976. There is no basis upon which to find that appellant’s pleas of nolo contendere were involuntarily or unknowingly made. Commonwealth v. Owens, supra.

Appellant’s remaining contention is that his sentence is manifestly excessive and that the trial court impermissibly based its sentence solely upon the seriousness of his crimes and failed to consider the effect of his own drug addiction and the outrageous conduct by the police. Because appellant is challenging the discretionary aspects of sentencing, we must determine whether he has raised a substantial question as to whether his sentence was appropriate under the Sentencing Code as a whole. See: 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 18 (1987).

“Although the existence of a substantial question must be determined on a case by case basis, the Superior Court will generally review the discretionary aspects of sentencing where a colorable argument is made that the actions of the sentencing court were either inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms which underlie the sentencing process.” Commonwealth v. Groft, 424 Pa.Super. 510, 520, 623 A.2d 341, 347 (1993) . However, the Superior Court has “held that a claim of excessiveness of sentence does not raise a substantial question so as to permit appellate review where the sentence is within the statutory limits.” Commonwealth v. Jones, 418 Pa.Super. 93, 106, 613 A.2d 587, 593 (1992) (en banc). See also: Commonwealth v. Canfield, 432 Pa.Super. 496, 500, 639 A.2d 46, 48 (1994); Commonwealth v. Breter, 425 Pa.Super. 248, 251, 624 A.2d 661, 662 (1993). Similarly, “[a]n allegation that a sentencing court ‘failed to consider’ or ‘did not adequately consider’ certain factors does not raise a substantial question that the sentence was inappropriate.” Commonwealth v. Urrutia, 439 Pa.Super. 227, 236, 653 A.2d 706, 710 (1995). See also: Commonwealth v. Lawson, 437 Pa.Super. 521, 531, 650 A.2d 876, 881 (1994); Commonwealth v. McKiel, 427 Pa.Super. 561, 564, 629 A.2d 1012, 1013 (1993); Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc). Instantly, appellant’s sentence falls within statutory limits. Because the claims asserted by appellant do not raise a substantial question, further review of the discretionary aspects of sentencing is not warranted.

Moreover and in any event, there was no abuse of discretion on the part of the trial court in imposing appellant’s sentence. As we have already observed, the conduct of the police during the investigation of appellant’s drug trafficking activities was not “outrageous”; and, therefore, the trial court’s failure to consider it when sentencing appellant was not improper. The trial court had the benefit of a presentence report; and, therefore, it may be presumed that the court “was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.” Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18 (1988). “Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed.” Id. at 102, 546 A.2d at 18. Here, the imposition of an aggregate sentence of not less than twelve and one-half years nor more than thirty years for appellant’s extensive and wide ranging drug distribution enterprise cannot be deemed manifestly excessive.

The judgment of sentence is affirmed.

      . The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, § 13, 35 P.S. § 780-113(a)(30).

      . Id.

      . Id. at § 780-113(a)(16).

      . Id. at § 780-113(a)(32).

      . In reaching our conclusion, we have carefully reviewed the appellate brief filed by the Office of the Public Defender on behalf of appellant, but we have refrained from reviewing the second brief filed pro se by appellant. See: Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993).


author: CIRILLO, Judge:

text:
    666 A.2d 721
    ELMWOOD FEDERAL SAVINGS BANK v. Stephen R. PARKER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 20, 1995.
    Filed Oct. 19, 1995.

      Stephen R. Parker, Pro Se, appellant.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   CIRILLO, Judge:

Appellant Stephen R. Parker appeals pro se from an order of the Court of Common Pleas of Delaware County. We dismiss.

On April 24, 1984, Parker executed and delivered a residential adjustable rate mortgage note in favor of appellee Elm-wood Federal Savings Bank (Bank). In addition to monthly payments of principal and interest, Parker was required under the mortgage to pay a sum equal to one-twelfth of the yearly taxes and yearly insurance premium installments with each monthly payment. On June 1, 1990, the interest rate on the mortgage was adjusted to 8.75 percent, reducing the monthly payment due for principal and interest to $165.53. Parker’s monthly mortgage payment, including taxes and insurance, totalled $312.89. In August of 1990, Parker began making monthly payments in the amount of $165.53, and discontinued the insurance and tax payments.

In October of 1991, the Bank notified Parker of his default and of its intention to foreclose on the mortgage. Thereafter, in April of 1992, the Bank filed a civil action in mortgage foreclosure against Parker. The complaint alleged that Parker was in default on the mortgage, the amount computed as follows:

Principal...................$19,818.54
Interest......................2,236.29
Late Fees.....................173.14
Attorney Fees................2,239.85
Costs.........................170.50
TOTAL $24,638.32

On August 6, 1993, following a bench trial before the Honorable Charles C. Keeler, the court made findings of fact and entered a verdict in favor of the Bank. Judge Keeler found that Parker was in default of his mortgage and note for failure to make the monthly tax and insurance payments. On August 23, 1993, Parker filed a notice of appeal. The trial court ordered Parker to file a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). In his 1925(b) statement, Parker raised several allegations of error, namely:

Failure of Hon. Charles C. Keeler to decide on counterclaim;
Ineffectiveness of coun[sel] Richard L. Raymond, Esq. in regard to all matters and specifically to his refusal to ask for sanctions against Elmwood Federal in regard to plaintiff[’]s inadequate response to interrogatories;
Failure of the Hon. Charles C. Keeler to rule on objections to admission of plaintiff[’]s notice of foreclosure;
Lack of time between notice of and date of trial.

On the record before us, we are unable to determine that the trial court disposed of these claims. In any event, on December 6, 1993, this court quashed Parker’s appeal as interlocutory because no judgment had been entered on the verdict. See Fernandes v. Warminster Municipal Authority, 296 Pa.Super. 523, 442 A.2d 1174 (1982) (appeal taken from verdict quashed where no judgment had been entered). On November 5, 1993, however, prior to this court’s order quashing the appeal, judgment had been entered on the verdict in the amount of $26,653.87, plus accrued interest, late fees, and other insurance and tax payments paid by the Bank on behalf of Parker. Thereafter, on April 25, 1994, this court entered a second order, acknowledging that, in fact, judgment had been entered on the verdict. This court, nonetheless, dismissed the appeal once again, stating:

ORDER
[AND NOW, this 25th day of April, 1994,] Although judgment has been entered on the trial court docket on November 5, 1993, post-trial motions were not filed following the entry of the verdict on August 6, 1993. Pa.R.C.P. 227.1(c)(2) states in pertinent part: “Post-trial motions shall be filed within ten days after ... the filing of the decision ... in the case of a trial without jury.” (emphasis supplied). Pa.R.A.P. 302(a) states: “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” [citations omitted]. Therefore, the court hereby DISMISSES the appeal at No. 3771 Philadelphia 1993.

Following this order, Parker filed an emergency petition to open or strike the judgment and writ of execution. Emergency relief was denied.

On June 23, 1994, June 30, 1994, and July 7, 1994, publication and notice were made of a sheriffs sale on the property. The sheriffs sale was scheduled for July 15,1994.

On July 8, 1994, Parker filed a motion for post-trial relief, raising thirty points of error, all of which had previously been stated in Parker’s petition for emergency relief and stay of execution.

On July 14, 1994, one day prior to the scheduled sheriffs sale, National Bank of the Main Line sent a letter addressed to Parker, confirming receipt of $18,208.25 as full reinstatement of the mortgage. The letter also stated that the “sheriffs sale scheduled for July 15, 1994 has been cancelled as a result of this payment[,]” and that “[rjegular monthly payments of $292.56 should resume effective August 1,1994.” On August 10,1994, the writ of execution was stayed.

As a result of his payment to cure the default, Parker stayed the sheriffs sale and saved his property from foreclosure. Notwithstanding this, Parker filed the present appeal to this court, pro se, arguing that the instant matter was one of “foreclosure by ambush,” and that the Bank had imposed excessive and fraudulent fees and charges “under threat of improper Sheriffs sale.”

None of these claims, however, have been addressed at the trial court level. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). Procedurally, Parker’s case is racked with error; although the clerk of this court inadvertently quashed for failure to enter judgment, when judgment had in fact been entered, the appeal was again quashed for failure to file timely post-trial motions. We note, however, that Parker did file a concise statement of reasons relied upon for appeal in response to the trial court’s order. Pa.R.A.P. 1925(b). Nonetheless, the record before us provides no indication that the trial court addressed the claims presented. In the interim, the sheriffs sale was stayed as a result of payment.

Parker, as a defaulting mortgagor of land, had the right to redeem the mortgaged property upon payment of the mortgage debt prior to the “fall of the hammer” at a sheriffs sale. See Re Evergreen Memorial Park Assoc., 308 F.2d 65, 67 (3d Cir.1962) (applying Pennsylvania law); see also Marx Realty & Improvement Co. v. Boulevard Center, Inc., 398 Pa. 1, 156 A.2d 827 (1959). This he did. See generally 22 Standard Pennsylvania Practice 2d § 121:16-121:18 (right to cure default). Parker did not, however, challenge the assessment of damages. Parker paid the amount required for full reinstatement of the mortgage.

Parker had his day in court. A trial was had on the complaint in mortgage foreclosure. Judgment was entered against Parker and, prior to the sheriffs sale, Parker successfully stayed the sale averring the only defense available to him — payment. As stated above, Parker made no challenge at that time to the amount in default. The instant appeal, therefore, leaves this court with nothing preserved for review. Consequently, we find it necessary to dismiss this appeal for want of reviewable claims.

Appeal dismissed.

      . We note that Elmwood Federal Savings Bank has not filed an appellee's brief.

      . Paragraph 2 of the Uniform Covenants of the Mortgage provides:
      2. Funds for Taxes and Insurance. Subject to applicable law or to a written waiver by Lender, Borrower shall pay to Lender on the day monthly installments of principal and interest are payable under the Note, until the Note is paid in full, a sum (herein "funds”) equal to one-twelfth of the yearly taxes and assessments which may attain priority over the Mortgage, and ground rents on the Property, if any, plus one-twelfth of yearly premium installments for hazard insurance, plus one-twelfth of yearly premium installments for mortgage insuranee, if any, all as reasonably estimated initially and from time to time by Lender on the basis of assessments and bills and reasonable estimates thereof.

      . The purpose of a sheriff's sale in mortgage foreclosure proceedings is to realize out of the land, the debt, interest, and costs which are due, or have accrued to, the judgment creditor. See 22 Standard Pennsylvania Practice § 121:95.

      . We note that Parker appealed from the entry of an adverse order pursuant to Pa.R.A.P. 301(e). Rule 301(e) states:
      Where the exigency of the case is such as to impel an immediate appeal and the party intending to appeal an adverse action is unable to secure the formal entry of an appealable order pursuant to the usual procedures, the party may file in the lower court and serve a praecipe for entry of an adverse order, which action shall constitute entry of an appealable order for the purposes of these rules. The interlocutory or final nature of the action shall not be affected by this subdivision.
      Pa.R.A.P. 301(e).

      . The Note provides, in paragraph 5,
      BORROWER’S FAILURE TO PAY AS REQUIRED
      (A) Late Charge for Overdue Payments If the Note Holder has not received the full amount of any of my monthly payments by the end of 15 calendar days from the date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be 4% of my overdue payment of principal and interest.
      * * sis * sis *
      (D) Payment of Note Holder’s Costs and Expenses
      If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all its reasonable costs and expenses to the extent not prohibited by applicable law. Those expenses may include, for example, reasonable attorneys’ fees.

        See Steele v. Lineberger, 72 Pa. 239 (1872) (if a plaintiff has a judgment in a mortgage foreclosure action, he is entitled to costs); see also 22 Standard Pennsylvania Practice § 121:76.

      . The holder of a mortgage can legally proceed to enforce the mortgage either by foreclosure proceedings on the mortgage or by obtaining judgment on the bond accompanying the mortgage and issuing a writ of execution. See Harper v. Lukens, 271 Pa. 144, 112 A. 636 (1921); Cooper v. Lucas, 152 Pa.Super. 655, 33 A.2d 466 (1943); see also 22 Standard Pennsylvania Practice 2d § 121:3. These remedies may be pursued concurrently or consecutively, although the mortgagee, of course, may have only one satisfaction. Harper, supra. Cf. Batten v. Jurist, 306 Pa. 64, 158 A. 557 (1932); Mancine v. Concord-Liberty Sav. & Loan Assoc., 299 Pa.Super. 260, 445 A.2d 744 (1982).


text:
    666 A.2d 724
    COMMONWEALTH of Pennsylvania v. Robert D. McMASTER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1995.
    Filed Oct. 20, 1995.

      Joseph J. Hylan, Assistant Public Defender, Norristown, for appellant.
    Mary M. Killinger, Executive Assistant District Attorney, Norristown, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

Robert McMaster was tried by jury and was found guilty of involuntary deviate sexual intercourse and incest. Post-trial motions were denied, and McMaster was sentenced to serve concurrent terms of imprisonment of not less than five (5) years nor more than ten (10) years for involuntary deviate sexual intercourse and not less than one (1) year nor more than five (5) years for incest. On direct appeal from the judgment of sentence, McMaster contends that the trial court erred: (1) by finding that the juvenile victim was competent to testify against him at trial; and (2) by allowing the Commonwealth to present evidence that the victim had been infected with gonorrhea, while, at the same time, excluding defense evidence that the defendant had been tested and found to have been free of gonorrhea. In addition, McMaster has alleged several instances of ineffective assistance by his trial counsel. We will consider these claims seriatim.

From December 20 through December 29, 1988, appellant, who was then residing in Canada, went to Bryn Athyn, Montgomery County, to visit his wife and three children, from whom he was separated. On Christmas morning, according to A.L., appellant’s daughter, who was four years old at the time, appellant took her into her bedroom and “put his penis in [her] mouth and he peed in [her] mouth and some stuff came out of his penis and he told [her] to swallow it, and [she] did.” Thereafter, the victim testified, appellant turned around and “pooped” into her mouth and forced her to chew it. The victim further stated that appellant had also “licked and kissed” her private parts. Subsequently, the victim described two other incidents during appellant’s visit in which he “pooped and peed” into her mouth. During one of these incidents, the victim said, appellant took pictures of her while she was naked. Also, according to the victim, appellant threatened that if she told her mother about what appellant was doing he would “kill [her] brother and sister and chop them up.”

At the time of trial, the victim was nearly eight years of age. She testified about events which had allegedly occurred when she had been four years old. In evaluating the competency of a child witness, a court is guided by the following principles:

[C]ompetency of a witness is presumed, and the burden falls on the objecting party to demonstrate incompetency. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959); Commonwealth v. Mangello, supra. When the witness is under fourteen years of age, there must be a searching judicial inquiry as to mental capacity, but discretion nonetheless resides in the trial judge to make the ultimate decision as to competency.

Commonwealth v. Short, 278 Pa.Super. 581, 586, 420 A.2d 694, 696 (1980). See also: Commonwealth v. Stohr, 361 Pa.Super. 293, 296, 522 A.2d 589, 591 (1987) (en banc). The required inquiry must determine whether the child possesses

(1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is called to testify about and (3) a consciousness of the duty to speak the truth.

Rosche v. McCoy, 397 Pa. 615, 620-621, 156 A.2d 307, 310 (1959). See also: Commonwealth v. Baker, 466 Pa. 479, 485, 353 A.2d 454, 457 (1976); In the Interest of J.R., 436 Pa.Super. 416, 421, 648 A.2d 28, 31 (1994).

A trial court making a determination of competency is confronted by conflicting policies.

One is that a party should not be denied justice because reliance necessarily must be placed upon the testimony of a child of tender years. But, on the other hand, experience has informed us that children are peculiarly susceptible to the world of make-believe and of suggestions. Care must be exercised to keep the balance true as between these conflicting claims. So it is that much must be left to the discretion of the trial judge who hears and sees the witness.

Rosche v. McCoy, supra at 621, 156 A.2d at 310. Therefore, “[t]he determination of competency is a matter for the sound discretion of the trial court, which will not be disturbed absent a clear abuse of that discretion.” Commonwealth v. Hart, 501 Pa. 174, 177, 460 A.2d 745, 747 (1983). See also: Commonwealth v. McEachin, 371 Pa.Super. 188, 193, 537 A.2d 883, 885-886 (1988). In this regard, the Superior Court has observed:

Our standard of review of rulings on the competency of witnesses is very limited indeed. As one Pennsylvania commentator has stated it, such rulings by trial judges will not be reversed except for a “flagrant abuse of discretion.” 2 Henry, Pennsylvania Evidence § 790 (1953). Professor Wigmore goes further still in suggesting that appellate courts should virtually never disturb such rulings; it is preferable, he argues, to accept the testimony for what it is worth and leave the matter of credibility to the fact-finder. IV Wigmore on Evidence § 1821 (Rev.ed.1976). See also ALI, Model Code of Evidence, Rule 101 & p. 340 (1942).

Commonwealth v. Mangello, 250 Pa.Super. 202, 205-206, 378 A.2d 897, 898-899 (1977). See also: Commonwealth v. Stohr, supra at 304-305, 522 A.2d at 595 (Kelly, J., Concurring); Commonwealth v. Bailey, 322 Pa.Super. 249, 260, 469 A.2d 604, 609-610 (1983); Commonwealth v. Short, supra at 586, 420 A.2d at 696.

In the instant case, an extensive colloquy was conducted to determine the victim’s competency to testify at trial. At the end of that colloquy, appellant conceded that the victim, by her responses to questions, had demonstrated a consciousness of the duty to tell the truth and a present ability to understand questions and give intelligent responses thereto. However, he contended that the victim had failed to demonstrate that, at the age of four years, she had the mental capacity to observe events and the ability to recall those events over three years later at the time of trial. He based this upon the victim’s inability to remember any events which had occurred in 1988, other than the sexual abuse perpetrated against her by appellant. In rejecting this argument, the trial court reasoned as follows:

THE COURT: I think that Mr. Reynolds [defense counsel] is absolutely right, what I have to decide, and I find as a fact, that she has the ability to communicate. She has the ability to understand the questions that are posed to her. I agree with Mr. Reynolds also, that she knows the gravamen of telling the truth as opposed to lying.
As far as the ability to recall is concerned, she strikes me as being quite candid about what she remembers and what she doesn’t remember. I think that this sort of lends frugality to me as far as she is concerned when she quite frankly said, I don’t remember that. Do you remember around Christmas time? Yes, I do. Do you remember anything else? I remember two other things.
And what are those two other things? Well, two different days. What days are they? The day after Christmas and the day following that.
You mean the 25th, 26th and 27th? Yes, I mean those. And you remember those three times? Yes, I remember those three times.
She impresses me as understanding that she has to tell the truth, and she impresses me that if she does not remember anything that she will quite frankly state that I don’t remember. And that if she does remember she will frankly state what she does remember.
I don’t think that there has been any showing at all that her memory is faulty in the areas in question. And a lot of these questions that were asked and a lot of the ramifications of the questions tend to go toward the weight of the evidence and not necessarily the admissibility of the evidence or the competency to testify to that evidence. I think I’m going to find her competent to testify.

After careful review, we are satisfied that the trial court did not abuse its discretion by finding that the victim was competent to testify at appellant’s trial. Although she expressed some general difficulty in recalling events which had occurred in 1988, the victim was clear in her testimony that she remembered the three incidents which were the focus of the trial. As such, the trial court could find that the victim had sufficient remembrance of the events upon which she was called to testify to be a competent witness.

At trial, the Commonwealth introduced evidence that in April, 1989, a throat culture taken from the victim had tested positive for the presence of gonorrhea. In addition, the Commonwealth offered testimony from an expert on child sexual abuse to the effect .that the victim’s infection with gonorrhea indicated that she had been sexually abused. The defense sought to exclude the evidence of the victim’s infection with gonorrhea, via a pre-trial motion in limine, on grounds that such evidence was irrelevant and highly prejudicial. The defense argued that this evidence should be excluded because the Commonwealth had no evidence that appellant had ever had gonorrhea, and it could not establish when the victim had become infected. As such, the defense asserted, the Commonwealth had no evidence to link appellant to the victim’s having been infected with gonorrhea. The Commonwealth, however, argued that the victim’s infection was relevant to prove that she had been sexually abused. The trial court agreed with the Commonwealth and denied the defense motion.

With respect to the relevancy of proffered evidence, the Superior Court has observed:

The basic requisite for the admissibility of any evidence in a criminal case is that it be competent and relevant. Commonwealth v. Potts, 314 Pa.Super. 256, 275, 460 A.2d 1127, 1137 (1983). Though “relevance” has not been precisely or universally defined, the courts of this Commonwealth have repeatedly stated that evidence is admissible if, and only if, the evidence logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Potts, supra, 314 Pa.Superior Ct. at 276, 460 A.2d at 1137; see also Commonwealth v. Doe, 316 Pa.Super. 1, 7, 462 A.2d 762, 765 (1983).

Commonwealth v. Davis, 381 Pa.Super. 483, 491, 554 A.2d 104, 108 (1989). See also: Commonwealth v. Johnson, 536 Pa. 153, 158, 638 A.2d 940, 942 (1994); Commonwealth v. Haight, 514 Pa. 438, 440, 525 A.2d 1199, 1200 (1987). “[Tissues of relevancy are left in large measure to the sound discretion of the trial court, whose decisions will not be reversed in the absence of a clear abuse of discretion.” Commonwealth v. Sullivan, 372 Pa.Super. 88, 96, 538 A.2d 1363, 1368 (1988). See also: Commonwealth v. Moore, 389 Pa.Super. 473, 482, 567 A.2d 701, 706 (1989); Commonwealth v. Copeland, 381 Pa.Super. 382, 387, 554 A.2d 54, 56 (1988). “Relevant evidence is usually probative. However, to be admissible its probative value must outweigh its prejudicial effect.” Commonwealth v. Urrutia, 439 Pa.Super. 227, 235, 653 A.2d 706, 710 (1995), citing Commonwealth v. Wharton, 530 Pa. 127, 146, 607 A.2d 710, 719 (1992). As such, “[not] all relevant evidence is admissible, ... and the trial court may exercise its discretion to exclude evidence that, though relevant, may confuse, mislead, or prejudice the jury.” Commonwealth v. Lumpkins, 324 Pa.Super. 8, 15, 471 A.2d 96, 100 (1984). See also: Commonwealth v. Douglass, 403 Pa.Super. 105, 114, 588 A.2d 53, 58 (1991); Commonwealth v. Costal, 351 Pa.Super. 200, 203-204, 505 A.2d 337, 338 (1986). “The inquiry therefore is whether the evidence is so prejudicial that it ‘may inflame’ the jury to make a decision based upon ‘something other than the legal propositions relevant to the case.’ ” Commonwealth v. Conway, 368 Pa.Super. 488, 494, 534 A.2d 541, 544 (1987), quoting Commonwealth v. Shain, 324 Pa.Super. 456, 464, 471 A.2d 1246, 1249 (1984). See also: Commonwealth v. Hodge, 270 Pa.Super. 232, 242, 411 A.2d 503, 508 (1979).

Instantly, even though the Commonwealth had no evidence that appellant was the cause of the victim’s infection, the fact that she had contracted gonorrhea tended to corroborate the occurrence of sexual abuse against the victim. The trial court did not err in determining that the evidence was relevant for this purpose. Cf. Commonwealth v. Mayo, 272 Pa.Super. 115, 121-122, 414 A.2d 696, 699 (1979) (in. prosecution for rape, expert testimony concerning semen stains on the victim’s bathrobe and the forcible removal of buttons from her bathrobe was admissible to corroborate victim’s claim that forcible intercourse had occurred, despite lack of any connection between such evidence and the defendant).

However, absent some evidence connecting appellant to the victim’s infection, this evidence would not have tended to establish appellant’s identity as the perpetrator of the sexual abuse against his daughter. See and compare: Commonwealth v. Lloyd, 367 Pa.Super. 139, 143-145, 532 A.2d 828, 830-831 (1987), reversed on other grounds, 523 Pa. 427, 567 A.2d 1357 (1989); Commonwealth v. Allen, 269 Pa.Super. 146, 409 A.2d 106 (1979). Nevertheless, despite its potentially inflammatory nature, we are satisfied that the probative value of the evidence of the victim’s gonorrhea infection outweighed its prejudicial impact. The defense in the instant case vigorously attacked the credibility of the victim’s testimony and suggested that her claims of sexual abuse were incredible. The only evidence available to the Commonwealth which tended to corroborate the fact that the victim had been sexually abused was the evidence of her having been infected with gonorrhea. Moreover, to alleviate any possible prejudice to appellant, the trial court instructed the jury that the victim’s infection with gonorrhea was only one piece of evidence in the case, and, standing alone, could not be the basis for a finding of guilt. Under these circumstances, we hold that the trial court did not abuse its discretion.

In response to the evidence offered by the Commonwealth establishing that the victim had contracted gonorrhea, appellant attempted to introduce certified copies of a doctor’s report and a laboratory report, both of which had been prepared in Canada, to establish that he had tested negative for gonorrhea in May, 1989 and had not been treated for gonorrhea by his personal physician. The copies of these records were offered by the defense pursuant to 42 Pa.C.S. § 6151, which provides as follows:

§ 6151. Use of certified copies
Medical charts or records of any health care facility licensed under the laws of this Commonwealth that are susceptible to photostatic reproduction may be proved as to foundation, identity and authenticity without any preliminary testimony, by use of legible and durable copies, certified in the manner provided in this subchapter by the employee of the health care facility charged with the responsibility of being custodian of the originals thereof. These copies may be used in any trial, hearing, deposition or other judicial or administrative action or proceeding, whether civil or criminal, in lieu of the original charts or records which, however, the health care facility shall hold available during the pendency of the action or proceeding for inspection and comparison by the court, tribunal or hearing officer and by the parties and their attorneys of record. This subchapter does not apply to an X-ray film or any other portion of a medical record which is not susceptible to photostatic reproduction.

42 Pa.C.S. § 6151. Under this statute, “[cjertifíed copies of medical records of any health care facility licensed under the laws of this Commonwealth that are susceptible to photostatic reproduction may be proved as to foundation, identity and authenticity without any preliminary testimony provided. The copies are certified by the custodian of the originals.” Estate of Pew, 409 Pa.Super. 417, 425-426, 598 A.2d 65, 69 (1991).

The trial court concluded that because the records at issue had been prepared in Canada, and not at any health care facility licensed under the laws of this Commonwealth, certified copies of such records were not admissible under the statute. Appellant argues, however, that by excluding such evidence, the trial court denied him the right to present exculpatory evidence and, thereby, violated his right to due process. Appellant also argues that the trial court misconstrued the legislative intent behind 42 Pa.C.S. § 6151 and, therefore, erred by failing to harmonize the statute with its subject matter, purpose and intent. Finally, appellant asserts, by excluding certified copies of medical records prepared at Canadian medical facilities, the trial court discriminated against him on the basis of his nationality as a Canadian citizen, and, in doing so, violated his constitutional right to equal protection of the law. These arguments are specious.

It is well settled that “[a]n accused has a fundamental right to present evidence so long as the evidence is relevant and not excluded by an established evidentiary rule.” Commonwealth v. Ward, 529 Pa. 506, 509, 605 A.2d 796, 797 (1992). Here, the records at issue were clearly inadmissible hearsay. Appellant could not introduce the medical opinion of his personal physician, via copies of medical records, without calling the doctor as a witness who would then be subject to cross-examination. As for the laboratory report, this record would not be admissible as a business record unless some foundation therefor were first established by the testimony of the custodian of such records. Because the evidence which appellant sought to introduce was inadmissible hearsay, its exclusion was proper.

It is equally clear that the trial court was correct in its application of 42 Pa.C.S. § 6151. The statute provides that only certified copies of medical charts or records “of any health care facility licensed under the laws of this Commonwealth” are admissible without any preliminary testimony establishing their foundation, identity and authenticity. 42 Pa.C.S. § 6151. Here, the records which appellant sought to introduce were not those of a Pennsylvania health care facility, but those of Canadian facilities. As such, certified copies were not admissible under 42 Pa.C.S. § 6151. “[WJhere the ‘words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.’ ” Commonwealth v. Hightower, 438 Pa.Super. 400, 401, 652 A.2d 873, 873 (1995), quoting 1 Pa.C.S. § 1921(b).

Finally, appellant’s equal protection argument is without merit. The statute in question did not single out either Canadian citizens or Canadian health care facilities for discrimination. Rather, the statute merely relaxed the evidentiary burden for introducing medical records which have been made at Pennsylvania health care facilities and which are, therefore, subject to legislative control and oversight to ensure their accuracy. In this regard, the trial court reasoned as follows:

I am sure that Mr. Josel [defense counsel] can find some way of bringing in the material without it being hearsay, but I am going to deny the request at this point. I think that Mr. Josel’s [equal protection] argument — the only thing that I can say about that is that, the Commonwealth has control over its own hospitals and institutions. The Commonwealth knows what the standards are for the licensing of its own institutions, because of that the legislature has carved out a special exception of the records of Commonwealth hospitals. Now, that being the case, our not knowing and having no control over a hospital in our sister state[s] and our sister [ ] jurisdictions, much less control over the funding appropriations, testing calibrations, whatever, of hospitals in sister countries, I think that was the reason that this was car[v]ed out by our legislature. So, I think that the [equal protection] argument is of no merit at this point.

The different treatment of medical records prepared at Pennsylvania facilities and those prepared in other states or countries bears a rational relation to a legitimate state interest and, therefore, does not violate principles of equal protection. See: Commonwealth v. Bottchenbaugh, 306 Pa.Super. 406, 411-412, 452 A.2d 789, 791-792 (1982).

The law presumes that counsel was effective; and, therefore, appellant bears the burden of proving the contrary. Commonwealth v. Baker, 531 Pa. 541, 562, 614 A.2d 663, 673 (1992). As such, it is necessary that a defendant asserting a claim of ineffective assistance of counsel make an offer of proof “alleging sufficient facts upon which a reviewing court can conclude that counsel may have, in fact, been ineffective.” Commonwealth v. Durst, 522 Pa. 2, 5, 559 A.2d 504, 505 (1989). “In order for appellant to prevail on a claim of ineffectiveness he must demonstrate that: (1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel’s ineffectiveness prejudiced him.” Commonwealth v. Williams, 532 Pa. 265, 274, 615 A.2d 716, 720 (1992). “To establish prejudice under this standard ‘requires [a] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Commonwealth v. Mickens, 409 Pa.Super. 266, 277, 597 A.2d 1196, 1202 (1991), quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).

Appellant asserts that his trial counsel were ineffective for failing to request a psychiatric examination of the victim prior to trial. Such an examination, appellant suggests, would have been relevant in assessing the victim’s competence to testify and her credibility as a witness at trial. The Pennsylvania Supreme Court has observed that a trial court “has discretion as to whether it will order a psychiatric examination of a witness but should not do so without a need for it being shown.” Commonwealth v. Garcia, 478 Pa. 406, 425, 387 A.2d 46, 55 (1978) (plurality opinion). See also: Commonwealth v. Jennings, 446 Pa. 294, 304, 285 A.2d 143, 149 (1971); Commonwealth v. Hassine, 340 Pa.Super. 318, 362-363, 490 A.2d 438, 461-462 (1985).

Appellant has failed to demonstrate a need which would have required the trial court to order a psychiatric examination of the victim. Appellant has made no showing as to how such an examination of the victim would have been helpful to his defense, nor has he demonstrated that the absence of such an examination denied him a fair trial. Therefore, there is no basis upon which to hold that appellant’s trial counsel were ineffective for having failed to request a psychiatric examination of the victim. “Counsel will not be found ineffective in a vacuum, and [this Court] will not consider claims of ineffectiveness without some showing of a factual predicate upon which counsel’s assistance may be evaluated.” Commonwealth v. Thomas, 372 Pa.Super. 349, 364, 539 A.2d 829, 837 (1988).

Appellant further asserts that counsel were ineffective for the relentless and overaggressive manner in which they cross-examined the victim, including their having the victim demonstrate the mechanics of the sexual abuse which allegedly had been perpetrated upon her. According to appellant, the effect of this cross-examination was to confirm the victim’s direct testimony and thereby bolster her credibility; to shock and embarrass the jury with the explicit nature of the questioning; and to create further sympathy for the victim.

The manner in which to cross-examine adverse witnesses is largely a matter of trial strategy to be determined by counsel. As a general rule, “trial strategy is a matter best left to counsel and [ ] a defendant is not entitled to relief simply because the strategy is unsuccessful.” Commonwealth v. Tippens, 409 Pa.Super. 536, 542, 598 A.2d 553, 556 (1991) (en banc). Here, although the aggressive nature of the cross-examination of the victim may have backfired, counsel were able to demonstrate several inconsistencies in the victim’s version of events and to utilize these inconsistencies in arguing to the jury that the victim’s allegations against appellant were unworthy of belief. We cannot deem counsel constitutionally ineffective merely because this strategy proved to be unsuccessful.

During the cross-examination of appellant at trial the following occurred:

Q. When you found out about the allegations, you never called the police, did you?
A. What police?
Q. ' The police in Montgomery County.
MR. JOSEL: Objection, Your Honor. There is no police. We have a county detective unit involved in it—
MS. HYKEL: That’s not my question.
THE COURT: I’ll allow the question.
MR. JOSEL: Objection. May I see you in chambers?

Thereafter, a defense motion for mistrial was denied. Appellant now argues that trial counsel were ineffective for failing to assert in post-trial motions that the trial court erred by refusing to grant a mistrial after the prosecutor had cross-examined him regarding his post-arrest silence.

“It is a clear violation of the accused’s constitutional-right against self-incrimination to make a reference at trial to his silence while in police custody.” Commonwealth v. Gbur, 327 Pa.Super. 18, 23, 474 A.2d 1151, 1154 (1984). See: Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982). However, “a similar prohibition does not attach to a defendant’s pre-arrest silence.” Commonwealth v. McConnell, 404 Pa.Super. 439, 443, 591 A.2d 288, 290 (1991). The use of a defendant’s pre-arrest silence to impeach his credibility as a witness does' not violate his Fifth Amendment right against seif-incrimination. See: Commonwealth v. Robinson, 379. Pa.Super. 575, 577-578, 550 A.2d 800, 801 (1988); Commonwealth v. Monahan, 378 Pa.Super. 623, 627-630, 549 A.2d 231, 233-234 (1988); Commonwealth v. Hassine, supra at 341-342, 490 A.2d at 450. See also: Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).

Instantly, the prosecutor’s question to appellant on cross-examination did not refer to his silence after arrest. The question pertained rather to appellant’s silence upon learning of the victim’s accusations over one and one-half years prior to his arrest. The question, therefore, did not violate appellant’s right against self-incrimination, and the trial court did not err by denying the defense motion for mistrial based thereon. It follows that appellant’s trial counsel were not ineffective for failing to raise this issue in post-trial motions. “[C]ounsel will not be considered ineffective for failure to assert a meritless claim.” Commonwealth v. Albrecht, 510 Pa. 603, 626, 511 A.2d 764, 776 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987).

The final claim of ineffectiveness raised by appellant concerns the failure of his counsel to call as witnesses at trial appellant’s physician, Dr. Howard Cohen, and personnel from Cybermedics Health Services, both of Ottawa, Canada, to testify as to appellant’s having tested negative for gonorrhea in May, 1989. Instead of calling these witnesses, appellant asserts, counsel erroneously sought to introduce certified copies of medical records under 42 Pa.C.S. § 6151, even though the statute on its face limited the introduction of such records to those prepared at health care facilities licensed under the laws of Pennsylvania. The failure to call these witnesses, appellant contends, deprived him of the opportunity to present exculpatory evidence which would have tended to prove that he was not the source of the victim’s gonorrhea infection, and, therefore, not her abuser.

After careful review, we hold that there is arguable merit in appellant’s claim that his counsel were ineffective for failing to call medical witnesses to testify that appellant had been tested for gonorrhea and had been found to be free of the disease. If appellant would have been able to prove at trial that he was not infected with gonorrhea, this would have tended to be exculpatory in that the jury could have inferred therefrom that appellant was not the source of the victim’s gonorrhea infection and, hence, not the person who had. sexually abused her.

We reject the Commonwealth’s assertion that appellant was not prejudiced by the absence of such medical testimony because it would merely have been cumulative of his own testimony that he had been tested and that he had not exhibited symptoms of the disease. When appellant was asked if he had ever had gonorrhea, the Commonwealth objected on grounds that the question called for a medical diagnosis requiring a doctor’s testimony. This objection was sustained by the trial court. Clearly appellant’s limited testimony on this subject was an inadequate substitute for expert testimony establishing that, shortly after the -victim had tested positive for gonorrhea, appellant had also been tested for the disease and the test results were negative.

“The law is clear that counsel’s failure ‘to interview witnesses whose testimony could prove beneficial and exculpatory to the defendant’s case can constitute ineffective assistance of counsel if no reasonable basis otherwise exists for counsel’s failure.’ ” Commonwealth v. Anderson, 410 Pa.Super. 524, 530, 600 A.2d 577, 580 (1991), quoting Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983). See also: Commonwealth v. Mabie, 467 Pa. 464, 474-475, 359 A.2d 369, 374-375 (1976); Commonwealth v. Twiggs, 460 Pa. 105, 110-111, 331 A.2d 440, 443 (1975). Here, appellant has alleged that his counsel made no attempt to obtain the testimony of necessary medical witnesses, but, instead attempted to introduce, in their place, copies of medical records which were clearly not admissible evidence. If true, it is hard to imagine any reasonable basis for counsels’ actions. However, because this claim has been raised for the first time on appeal, there has been no evidentiary hearing. In similar situations, the Superior Court has observed:

When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the [trial court] to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing. See Commonwealth v. Spotts, 341 Pa.Super. 31, 33, 491 A.2d 132, 134 (1985).

Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987). See also: Commonwealth v. Thuy, 424 Pa.Super. 482, 498, 623 A.2d 327, 335-336 (1993); Commonwealth v. McBride, 391 Pa.Super. 113, 121, 570 A.2d 539, 543 (1990).

The judgment of sentence is vacated, at least for the time being, and the case is remanded for an evidentiary hearing on appellant’s claim that trial counsel were ineffective for failing to present medical testimony that appellant tested negative for gonorrhea. If it is determined that trial counsel were ineffective in this regard, then appellant must be awarded a new trial. If, however, counsel are found not to have been ineffective, the judgment of sentence may be reimposed. Jurisdiction is not retained in the meantime.

      . Although ruling that the victim’s gonorrhea infection was admissible, the trial court, in its final charge, cautioned the jury with respect to this evidence as follows:
      The Commonwealth has established evidence in an effort to establish that the alleged victim ... was diagnosed as having gonorrhea of the throat in April of 1989. If you find that the Commonwealth has established such a fact, that fact alone cannot be the basis of your finding the defendant guilty of any of the charges against him. It is no more than one fact against hirn which you are to consider in deciding if the Commonwealth has established the defendant’s guilt on any of the charges against him beyond a reasonable doubt.
      Let me put this in prospective. You have before you a number of, I will call them, facts at this point, but they are not facts until you make them so, upon which you base your decision. All of these are important. You cannot arrive at a verdict, either find the defendant guilty beyond a reasonable doubt or find him not guilty, unless you have given due consideration to every fact in the case. If the totality of the factual situations as you find them leads to your conviction that the defendant has been proven beyond a reasonable doubt, then you should find the defendant guilty of the crimes charged against him.
      If you are looking and accepting and believing the totality of the facts in the case leads you to the conviction that the Commonwealth has not proven their case beyond a reasonable doubt, then you must find the defendant not guilty of the charges against him.

      . Appellant was represented at trial by Alan Josel, Esquire and Roger Reynolds, Esquire.


author: HOFFMAN, Judge.

text:
    666 A.2d 734
    TRACEY L. v. MATTYE F. and Eddie J.S. Appeal of MATTYE F.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1995.
    Filed Oct. 23, 1995.

      Diane Thompson, Philadelphia, for appellant.
    William E. Ehrich, Philadelphia, for Tracey L., appellee.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from an order entered September 26, 1994, transferring primary physical custody of Juanita S. from her caretaker to her biological mother. Appellant, Mattye F., now raises the following issues for our review:

I. WAS THE TRIAL COURT REQUIRED TO PERMIT APPELLANT AND HER WITNESSES TO TESTIFY ON THE ISSUE OF CHANGE OF CUSTODY?
II. DID THE TRIAL COURT ERR IN NOT CONSIDERING SUFFICIENT EVIDENCE OF A CHANGE IN CIRCUMSTANCES TO MODIFY A CUSTODY ORDER IN THE BEST INTERESTS OF THE MINOR CHILD?
III. DID THE TRIAL COURT ERR OR GROSSLY ABUSE ITS DISCRETION IN DECIDING NOT TO ENTER AN ORDER PERMITTING APPELLANT TO RETAIN PARTIAL CUSTODY OF THE CHILD TO THE MOTHER?

Appellant’s Brief at 2. For the following reasons, we reverse and remand.

Juanita, born June 2, 1988, is the child of appellee, Tracey L., and Eddie S. Although the parents never married and no longer have a romantic relationship with one another, both have maintained a relationship with Juanita. In January of 1990, appellee enrolled in college as a full-time nursing student while appellant, who had raised appellee from infancy although they are not biologically related, cared for Juanita. In August of 1990, pursuant to an agreement between the parties, appellant was awarded primary physical custody of Juanita, while appellee retained custody alternate weekends.

On October 4, 1993, appellee filed a petition to modify, seeking primary custody of Juanita. Following a hearing on December 7,1993, the trial judge denied appellee’s request for primary custody, but suggested the parties work out a schedule providing appellee with increased visitation. As a result, the parties agreed that appellee would have custody of Juanita every Thursday after school until Monday morning. On March 18, 1994, appellee filed a second petition seeking primary physical custody of Juanita. After a second hearing on September 26, 1994, the trial judge transferred custody of Juanita from appellant to appellee and denied appellant’s request for visitation. This timely appeal followed.

In the instant case, appellant, who has no familial relationship to the child, is a third party. Typically, a third party lacks standing to seek custody against the natural parents. Cardamone v. Elshoff, 442 Pa.Super. 263, 274-75, 659 A.2d 575, 581 (1995). Here, however, appellant, who not only acted in loco parentis, but also was previously awarded primary custody, clearly has standing to challenge the September 26, 1994 custody order. See Cardamone, 442 Pa.Super. at 274-75, 659 A.2d at 581 (in loco parentis status is an exception to the “third-party-lack-of-standing-preclusion”). Although appellant has standing, she faces a heavy burden challenging Juanita’s natural mother’s right to custody.

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

Karner v. McMahon, 433 Pa.Super. 290, 299, 640 A.2d 926, 930 (1994) (quoting In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977)).

Before addressing appellant’s contentions, we first note the standard of review for a child custody order:

The scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, the appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

Moore v. Moore, 535 Pa. 18, 28, 634 A.2d 163, 168 (1993) (citations and footnote omitted).

Appellant first asserts that the trial court abused its discretion by refusing appellant’s request to testify and present witnesses at the September 26, 1994 hearing. We agree.

As we have cautioned the lower courts time and again, in order to assess the best interests and general welfare of the child or children, it is the duty of the trial judge to make the fullest possible inquiry in custody actions. All pertinent facts and circumstances surrounding the contesting parties must be fully explored and developed.

Moore, 535 Pa. at 18, 634 A.2d at 167 (citations omitted).

In the case sub judice, appellant was permitted to testify at the December 7, 1993 hearing, which resulted in an order providing appellant with continued primary custody. However, appellant was prevented from testifying or presenting any witnesses on her behalf at the September 26, 1994 hearing, after which the trial judge transferred custody from appellant to appellee. The trial court had an obligation to hear all evidence relevant to Juanita’s best interest, including the testimony of appellant, who was Juanita’s primary caretaker and whose testimony was over nine months old at the time of the September 26, 1994 hearing. Therefore, we find that the trial court’s failure to allow appellant to testify constituted a gross abuse of discretion. Moore, supra; Karner, supra. See E.A.L. v. L.J.W., 443 Pa.Super. 573, 662 A.2d 1109 (1995) (where trial court transferred custody from third party to mother, case remanded because trial court committed various errors, including failure to develop complete record); see also Artzt v. Artzt, 383 Pa.Super. 23, 28, 556 A.2d 409, 412 (1989) (“It is axiomatic that child custody orders are temporary in nature and subject to change if new circumstances affect the welfare of the child.”), appeal denied, 528 Pa. 275, 597 A.2d 1115 (1991).

Consequently, we remand this matter to the trial court so that appellant may be given an opportunity to testify and present witnesses relevant to Juanita’s best interest. We realize that a significánt amount of time has passed since the September 26,1994 hearing. Therefore, the trial court should also entertain testimony from appellee and her witnesses, as circumstances may have changed, before entering a custody order. Artzt, supra (where significant amount of time passed since the entry of a custody order, matter remanded for a full hearing to reconsider the merits of the prior order).

Reversed and remanded. Jurisdiction relinquished.

      . Because of our disposition of this issue, we need not address appellant's other contentions.


author: HESTER, Judge:

text:
    666 A.2d 737
    CROSBY SQUARE APARTMENTS v. Bernice HENSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 5, 1995.
    Filed Oct. 24, 1995.

      Natalie M. Habert, Media, for appellant.
    Robert C. Keller, Media, for appellee.
    Before TAMILIA, FORD ELLIOTT and HESTER, JJ.
   HESTER, Judge:

Bernice Henson appeals the March 30, 1995 order denying her petition to proceed in this action in forma pauper-is in the trial court. We are constrained to reverse and remand for a hearing.

Appellee, Crosby Square Apartments, instituted this action in ejectment for nonpayment of rent. Appellant is a tenant in appellee’s government-subsidized low income housing. On February 14, 1995, a board of arbitrators, with one dissent, awarded appellee possession of the premises and $2,369.80. The dissenter would have awarded appellant possession and $5,449.80.

Appellant appealed and also filed an application for leave to proceed in forma pauperis. In the application, on a form provided by the court system, appellant averred that her only source of income is her $1,425.00 a month gross salary from the City of Chester. She averred specifically that she cannot, due to her financial condition, pay the fees and costs of defending this action. She has no other assets.

Appellant completed the only question on the form regarding expenses as follows:

(f) Debts and obligations
Mortgage: None,
Rent: $375.00 per month.
Loans: None
Other: $180.00 monthly electric bill.

In the application, appellant indicated that she has four minor dependents, three children and one grandchild. Counsel is representing appellant pro bono. The trial court denied the application on March 30, 1995, and this appeal followed.

In its opinion in support of the order, the trial court indicates that it denied the petition since the application indicates that appellant has a monthly income of $1,425 and monthly expenses of $555, giving her a “surplus of income over expenses of’ $870. Trial court opinion, 5/25/95, at 1. The trial court also indicates that she should have amended her petition if she contested its determination regarding the amount of her surplus income. Finally, it notes that since it credited her income and expense figures, there was no need to conduct a hearing.

Appellant presents a two-fold argument on appeal. She alleges that the trial court erred in concluding that she had surplus income of $870 a month since her application indicates that her gross income, before taxes, was $1,425 and since it is axiomatic that she has significant food and clothing expenses for herself and her four dependents. She asserts that it was not necessary to place obvious living expenses on the form. She also contends that since she specifically averred in the application that she did not have enough income to pay costs, the trial court should have awarded a hearing if it disbelieved that averment.

In this Commonwealth, “no person should have right and justice denied or delayed by reason of poverty.” 42 Pa.C.S. § 1725(a)(1). Thus, “A party who is without financial resources to pay the costs of litigation is entitled to proceed in forma pauperis.” Pa.R.C.P. 240(b).

In reviewing a trial court’s resolution of an application to proceed in forma pauperis, we reverse only if the court abused its discretion or committed an error of law. In re Adoption of B.G.S., 418 Pa.Super. 588, 614 A.2d 1161 (1992). Nonetheless, if a trial court disbelieves the averments in an application to proceed in forma pauperis, it is required to hold a hearing on the application to determine the veracity of the allegations contained therein. Griffin v. Tedesco, 336 Pa.Super. 586, 486 A.2d 419 (1984).

In the present case, the trial court posits that it did not disbelieve the averments in the application since it credited her income and expense figures. However, this is not technically correct. In paragraph one of her application, appellant averred specifically that she did not have the resources to pay costs. This averment was disbelieved by the trial court.

We also agree with appellant’s position that the trial court ignored the realities of life when it concluded that she had “surplus income” of $870 a month according to her application. According to her application, she aiso had four minor dependents. The form itself gives two lines for listing one’s expenses other than loans, mortgages, and rent. Appellant was more than reasonable in assuming that a court, in deciding such an application, would be aware of the ordinary expenses attendant on everyday life. Appellant works, and she needs money for clothing, lunch, and transportation. She has food and clothing costs for her dependents. Taxes are one of the two unavoidable conditions of life. Further, the record, on its face, establishes that she qualifies for federally-subsidized housing.

The trial court has considerable discretion in deciding whether a person is indigent. Sellers v. Sellers, 293 Pa.Super. 265, 438 A.2d 986 (1981). However, in making that determination, the trial court must focus on whether the person can afford to pay and cannot reject the allegations contained in an application without conducting a hearing. Id. If some allegations in the application are accepted but others are rejected, a hearing nonetheless is required. Griffin v. Tedesco, supra.

Herein, the application, on its face, contains an allegation of inability to pay court costs, and there were sufficient factual allegations in the application, viewed in light of realities, to establish a prima facie case of poverty. Appellant should be afforded a hearing to substantiate that she has food and clothing and other costs which would reduce her “surplus” income enough to allow her to proceed in forma pauperis. Koziatek v. Marquett, 335 Pa.Super. 482, 484 A.2d 806 (1984) (where application pled indigency and showed applicant’s sole income source was a disability payment, prima facie case of poverty established and hearing required).

Order reversed. Case remanded for a hearing as to appellant’s inability to pay court costs. Jurisdiction relinquished.

      . An order denying a petition to proceed in forma pauperis is a final, appealable order since the appellant is effectively out of court due to the claimed inability to provide costs and fees necessary to pursue the action in the trial court. Conover v. Mikosky, 415 Pa.Super. 348, 609 A.2d 558 (1992); Griffin v. Tedesco, 336 Pa.Super. 586, 486 A.2d 419 (1984). Thus, this appeal properly is before us.

      . Appellant was granted the right to appeal to us in forma pauperis.

      . The court does not indicate that it dismissed the action under Pa.R.C.P. 240(j), which deals with false allegation of poverty and dismissal of frivolous actions.