author: HOFFMAN, Judge:

text:
    523 A.2d 1169
    COMMONWEALTH of Pennsylvania v. Sheldon BROOKS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1987.
    Filed April 6, 1987.
    Kelly, J., concurred in the result.

      John F. Goryl, Carlisle, for appellant.
    John M. Eakin, District Attorney, Carlisle, for Com., appellee.
    Before BECK, KELLY, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for attempted homicide, two counts of aggravated assault, and two counts of assault by a prisoner. Appellant contends that the lower court erred in denying his exceptions to the prosecutor’s closing remarks. For the reasons that follow, we vacate the judgment of sentence and remand for a new trial.

Appellant, an inmate at the State Correctional Institution at Camphill, was charged with assaulting two guards on September 12, 1983. Following a jury trial, appellant was found guilty of attempted homicide, two counts of aggravated assault, and two counts of assault by a prisoner. He was sentenced to five-to-ten-years imprisonment for attempted homicide and a concurrent three-to-five-year term of imprisonment for one of the aggravated assault charges, and the remaining charges merged for sentencing purposes. This appeal followed.

Appellant contends that the lower court erred in denying his exceptions to the prosecutor’s closing remarks. He argues that the district attorney, by making several statements about matters not in evidence, improperly testified during his closing argument. We agree.

A prosecutor must limit closing remarks to the facts in evidence and the legitimate inferences that may be drawn therefrom. Commonwealth v. Anderson, 490 Pa. 225, 229, 415 A.2d 887, 888 (1980); Commonwealth v. Harvell, 458 Pa. 406, 410, 327 A.2d 27, 30 (1974). The prosecutor may not argue facts outside the record “unless such facts are matter of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice.” Commonwealth v. Danzy, 234 Pa.Superior Ct. 633, 638, 340 A.2d 494, 497 (1975). The reason for this rule is that, because of the very nature of the prosecutor’s position, any facts testified to by a district attorney are likely to be accorded great weight by the average jury. Commonwealth v. Bolden, 227 Pa.Superior Ct. 458, 460, 323 A.2d 797, 798 (1974). “Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Id. (emphasis in original) (citing Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)). To hold otherwise would create “the danger of a jury’s reliance upon hearsay or the prosecutor’s conclusions, and the possibility that the jury’s verdict will be based on evidence not presented at trial.” Commonwealth v. Caesar, 224 Pa.Superior Ct. 266, 271, 302 A.2d 846, 848 (1973) (HOFFMAN, J., Opinion in support of reversal). Accordingly, “[m]atters not developed at trial should not be presented to the jury at the conclusion of the case." Id. In addition, we note that the Code of Professional Responsibility provides that:

(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
* * * * * *
(3) assert his personal knowledge of the facts in issue, except when testifying as a witness.

Code of Professional Responsibility DR 7-106 (1974).

Here, the district attorney made the following remarks during his closing argument:

Now, there has been an argument by Mr. Masland [appellant’s attorney] that there is a reasonable doubt here because we have not presented to you any fingerprint testimony. I believe you can conclude from the evidence that none of these items, 8 and 9, 2 and 3, was ever submitted to a laboratory for fingerprint analysis.
Well, first of all, why would you submit something for fingerprint analysis? You submit it for fingerprint analysis if you wanted to figure out who had done a crime. It was not really necessary to submit any of these items for fingerprint analysis because it was perfectly clear as a result of an identification by at least five correctional officers who had committed this crime.
Secondly, Mr. Masland went to fairly great lengths to say and to establish as a matter of evidence that there were only three people who touched these items after the incident. The defendant himself was supposed to have touched them, the officers who picked them up were supposed to have touched them, and at least one officer is supposed to have touched them when he received them. I believe with regard to the bed end and the mop, two officers in addition to the officer who picked the items up touched them.
Well, that is accurate as far as it goes. But do you suppose they were mopping the floor between their arms when they used this item? Really, come on, be reasonable. How many fingerprints — if fingerprints can even be taken off of a porous substance like wood, how many fingerprints do you imagine are on this item? Overlapping it, one fingerprint overlapping another, overlapping another, rubbing one off. Every time it is touched by somebody fingerprints are put on it. If it is even a surface that is receptive to fingerprints.
You all know enough about fingerprints to know how fingerprints appear on substances, that it is a grease that your body emits through the skin and that that sticks to a surface. Use your common sense. Could they even be taken off of wood like this?
How do you think this bed end was pried off of the bed that it was part of? I submit to you it wasn’t by somebody using gloves so as not to leave fingerprints. This item is a bed end. If somebody wanted to move their bed, they probably grabbed it like this and moved it out, or moved it this way. (Indicating) When somebody took it off of a bed because he didn’t want his bed on the frame anymore, they had to handle this item. Literally hundreds of people could have handled that item.
What about the floor brush? Do you think floors are scrubbed by people holding this in their teeth as they scrubbed the floor? Or were they holding it with their hands and putting fingerprints on it?
Common sense tells you, ladies and gentlemen, that you can’t take fingerprints off of an item that has such a history of repeated use. Now, the Commonwealth didn’t introduce evidence about what you can and can’t do with fingerprints because there is no fingerprint evidence. But don’t let them use the argument that there is a reasonable doubt because there is no fingerprints when they haven’t put on a witness to establish that fingerprint evidence could be recovered in a situation like this. They are asking you to speculate. They are asking you to speculate on the existence of evidence when there simply is no way for you to speculate or for you to determine whether such evidence would be helpful in this case.

N.T. February 26, 1985, In re: Closing Arguments at 29-32. As was conceded by the prosecutor in his closing argument, absolutely no evidence was introduced at trial regarding fingerprints. Thus, these remarks went far beyond the scope of facts in evidence or any legitimate inferences that could be drawn from those facts. The prosecutor was, in effect, testifying as to the nature of fingerprints and the difficulty in obtaining fingerprint evidence from the weapons used because of the material they were made of and the number of people who handled them. This type of testimony is impermissible because it was based on facts that are not a matter of common public knowledge or a matter of which the court may take judicial notice. See Commonwealth v. Danzy, supra; see also Beneficial Consumer Discount Co. v. Savoy, 291 Pa.Superior Ct. 649, 653, 436 A.2d 687, 689 (1981) (judicial notice may be taken only of matters of common knowledge, of facts which are so well known that they are incontestable). Accordingly, we conclude that the closing remarks regarding fingerprint evidence amounted to an impermissible assertion of personal knowledge by the district attorney and the lower court erred in denying appellant’s exception to the remarks.

Appellant also objects to another remark that the district attorney made during his closing argument. To rebut appellant’s contention that the actual assailants of the guards wore masks fashioned out of ski caps issued by the prison, the district attorney also made the following remarks during his closing argument:

Sergeant Diehl didn’t see any ski caps. No other correctional officer saw any ski caps. The [appellant] himself didn’t even testify that he saw any ski masks or ski caps. Two witnesses talk about these alleged ski masks. The only knit cap that ever came into the courtroom was on the head of a third defense witness who didn’t talk about the ski masks, because he wasn’t a witness to that part of the incident. So he wears a knit cap into the courtroom. And certainly that knit cap isn’t something that could have been used to pull down over your head and make a ski mask out of it.

N.T. February 26, 1985, In re: Closing Arguments at 32. Appellant argues that the effect of the prosecutor’s remarks was to place a prison-issued ski cap into evidence by reference to a hat that one of the defense witnesses was wearing at trial. We agree.

As conceded by the Commonwealth, no ski cap was admitted into evidence. Appellant asserts that the knit hat worn by one of his witnesses was not of the type allegedly worn by the guards’ assailants, but rather “is one with religious significance to the Muslim religion.” N.T. February 26, 1985 at 2-77. Regardless of whether appellant’s assertion is correct, the Commonwealth was able to establish through its closing argument what it had failed to establish in its case-in-chief or by cross-examination — what a ski cap issued by the prison looks like. This type of evidence is not a matter that the jury would know from personal experience nor a matter of which the court could take judicial notice. Thus, we conclude that the prosecutor’s remarks concerning the knit hat worn by a defense witness amounted to an improper comment on facts not in evidence.

The Commonwealth argues that, should we conclude that the prosecutor’s remarks were improper, the error was de minimis. Brief for Appellee at 19. We disagree. “[A]n error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless” and the Commonwealth has the burden of establishing that such error was harmless beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 405-06, 383 A.2d 155, 162 (1978). “[A]n error may be harmless where the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict.” Id., 476 Pa. at 412, 383 A.2d at 166 (citing Commonwealth v. Davis, 452 Pa. 171, 178-79, 305 A.2d 715, 719 (1973)). The untainted evidence relied upon to determine whether there is overwhelming evidence of guilt must be uncontradicted. Id., 476 Pa. at 413, 383 A.2d at 166.

Here, the untainted evidence introduced by the Commonwealth to prove appellant’s guilt was not uncontradicted. The central issue of the case was identification. To rebut the Commonwealth’s testimony that appellant had committed the assaults, the appellant and three other defense witnesses testified that persons other than appellant were the assailants. Thus, because the Commonwealth’s evidence was contradicted, we conclude that the untainted evidence establishing guilt was not overwhelming and, therefore, the error created by the prosecutor’s remarks during closing argument was not harmless.

Moreover, we find the prosecutor’s remarks to be particularly troublesome because they.amounted to an admission of further evidence after the defense had rested. The Commonwealth must prove its case during its case-in-chief. It may address defense arguments during its closing argument but the Commonwealth must confine its rebuttal to facts already in evidence. The Commonwealth cannot wait, however, until the defense has rested to fill any evidentiary gaps created by the defense’s arguments. Such tactics impermissibly deny the defense a chance to rebut the Commonwealth’s evidence.

For the foregoing reasons, we vacate the judgment of sentence and remand for a new trial.

Vacated and remanded. Jurisdiction is relinquished.

KELLY, J. concurs in the result.

      . In addition, we note that the lower court refused to give curative instructions to the jury regarding the remarks concerning fingerprint evidence and the ski cap, despite the fact that defense counsel requested the court to do so. N.T. February 26, 1985 at 2-76 to 2-78.

      . Appellant also contends that (1) the evidence was insufficient to support the conviction; (2) the verdict is against the weight of the evidence; and (3) the lower court erred in denying his exceptions to inflammatory and prejudicial remarks made by the prosecutor during his closing argument. We conclude that the lower court has correctly disposed of these contentions.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    523 A.2d 1173
    Charles and Joan BITTENBENDER, Administrators of the Estate of Maryanne Bittenbender, Deceased, and Charles and Joan Bittenbender, Individually v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, and Michael Anthony Lund. Appeal of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1987.
    Filed April 10, 1987.

      Stanley J. Sinowitz, Philadelphia, for appellant.
    F. Emmett Fitzpatrick, Jr., Philadelphia, for appellees.
    Before: CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.
   CIRILLO, President Judge:

This is an appeal from an order denying a petition to strike and/or open a default judgment. We affirm.

The sole issue presented for our review is whether the notice requirement for a default judgment was followed pursuant to Pa.R.Civ.P. 237.1(a).

This action was originally filed on August 28, 1984 and served upon Southeastern Pennsylvania Transportation Authority (SEPTA) on September 4, 1984. The underlying claim is that SEPTA improperly discharged a 15 year old trolley passenger into the path of a speeding vehicle. The death of the passenger followed the accident.

On January 29, 1986, one year and three months after entry of a default judgment, SEPTA moved to strike and/or open the judgment. The trial court denied this request.

Rule 237.1(a) provides that no default judgment shall be entered without certification that written notice of intent to file such judgment was mailed to “the party against whom judgment is to be entered and to his attorney of record, if any.” Rule 237.1(a) further provides that “[i]f a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule.”

The record indicates that appellees, Charles and Joan Bittenbender, through their attorney, mailed a copy of the praecipe to enter a default judgment, on the same day it was filed, to Stanley Sinowitz, Esquire, in-house counsel for appellant SEPTA. This letter was dated October 23, 1984, which was 13 days after the expiration of the extension which was granted by appellees to SEPTA. The extension was given in a letter dated September 14, 1984, which was mailed to J.J. Rooney, Jr., Director of SEPTA’s Claim Department, in response to Rooney’s request. The letter granting the extension also informed SEPTA that failure to answer the complaint within the extension period would “result in the application for judgment.”

SEPTA bases its argument on the assertion that the notice of a default judgment which was mailed only to in-house counsel Sinowitz, did not satisfy the requirement of Rule 237.1(a) which calls for notice to be given to “the party against whom judgment is to be entered and to his attorney of record, if any____”

The explanatory notes that follow the rule clarify the reasoning behind the dual notice requirement. First, notice to the party will alleviate the problem situation where the defendant’s attorney never received notice. Second, “notice to the client as well as the attorney may have a salutary effect in speeding up action by a dilatory attorney.” Pa.R. Civ.P. 237.1, Explanatory Note.

Neither the rule nor the explanatory notes address the scenario presented before us where the attorney is an employee of the party. Thus, we must decide whether notice of a default judgment mailed to the in-house counsel of a party satisfies the notice requirements of Rule 237.1(a).

In Autologic Inc. v. Cristinzio Movers, 333 Pa.Super. 173, 481 A.2d 1362 (1984), we considered the validity of a default judgment where notice of praecipe for entry of default judgment was served on the claims manager of a moving company. This employee mistakenly thought that her company’s insurance carrier was handling the matter. Therefore, she did not forward the notice to either the insurance carrier or her superiors. We reasoned in the Autologic case that the claims manager of the moving company was given the responsibility not merely to forward papers to her superiors, but to make the decision whether or not to do so. We viewed the failure to respond as a decision by the employee which her employer empowered her to make. Therefore, we concluded that it was not unjust to hold the employer responsible for the decision of its employee because “[i]f we were to hold otherwise, employers could cause interminable delays in litigation simply by intentionally choosing unqualified employees to handle claims brought against them.” Autologic, 333 Pa.Super. at 178, 481 A.2d at 1364. See also MacClain v. Penn Fruit, Inc., 241 Pa.Super. 303, 361 A.2d 403 (1976) (default judgment upheld where store manager apparently failed to forward complaint to corporate headquarters).

It appears from the record that in-house counsel Sinowitz was handling the case for SEPTA as opposed to an outside firm. His name alone appears as author of SEPTA’s brief submitted to this Court. It remains “the law of Pennsylvania that a corporation may appear and be represented in our courts only by an attorney duly admitted to practice.” Walacavage v. Excell 2000, Inc., 331 Pa.Super. 137, 144, 480 A.2d 281, 285 (1984). It is almost common knowledge that a “ ‘corporation can do no act except through its agents____’ ” Walacavage, 331 Pa.Super. at 142, 480 A.2d at 284 (quoting MacNeil v. Hearst Corp., 160 F.Supp. 157, 159 (D.Del.1958)). These principles apply here. Sinowitz was not only an employee and agent of SEPTA, he was also the in-house attorney representing SEPTA in this case. Therefore, for purposes of satisfying the notice requirements of Rule 237.1(a), it is both reasonable and practical to conclude that serving notice on SEPTA’s in-house counsel Sinowitz was tantamount to serving notice on SEPTA in this particular case.

In reaching our holding, we factually distinguish cases such as N.H. Weidner, Inc. v. Berman, 310 Pa.Super. 590, 456 A.2d 1377 (1983) (Montemuro, J.) and Giallorenzo v. American Druggists’ Insurance Co., 301 Pa.Super. 294, 447 A.2d 974 (1982). Neither of these cases involved a symbiotic relationship remotely similar to that enjoyed by Sinowitz and SEPTA. The dual notice provision of Rule 237.1(a) was not intended to address the situation we have before us where the party and the party’s counsel are one and the same for the purpose of providing notice of legal proceedings.

We do, however, continue to follow the longstanding reasoning which was used in Berman. Namely,

The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.

Berman, 310 Pa.Super. at 599, 456 A.2d at 1382 (quoting Kraynick v. Hertz, 443 Pa. 105, 111, 277 A.2d 144, 147 (1971)). This reasoning supports the decision that we reach. Upholding the default judgment appealed from will prevent the dilatory appellant from impeding the appellee’s claim. The appellee was furnished no advantage by SEPTA’s unhappy 15 month delay. We are not presented with a “snap” judgment which is disapproved by the rules and the courts alike. See Academy House Council v. Phillips, 312 Pa.Super. 364, 369, 458 A.2d 1002, 1004 (1983); Pa.R.Civ.P. 237.1, Explanatory Note.

Although the order appealed from regards the petition denied as one seeking to strike and/or open a default judgment, SEPTA only argues in its brief that we should reverse the order striking the judgment because the notice requirements of Pa.R.Civ.P. 237.1 were not met. As this was the only issue raised in SEPTA’s appellate brief, we will likewise so limit our review. Commonwealth v. Whiteman, 336 Pa.Super. 120, 124, 485 A.2d 459, 461 (1984); Pa.R.A.P. 2116(a). See generally, Kophazy v. Kophazy, 279 Pa.Super. 373, 421 A.2d 246 (1980) (discussion of distinction between petition to strike and petition to open).

The law remains settled in Pennsylvania that the decision “[wjhether to strike or open a default judgment ... is left to the sound discretion of the trial court; its decision will not be reversed absent a manifest abuse of discretion or error of law.” Berman, 310 Pa.Super. at 593, 456 A.2d at 1379 (citing Giallorenzo, supra). A “petition to strike a default judgment will only be granted where a fatal defect appears on the face of the record.” Academy House Council, 312 Pa.Super. at 370, 458 A.2d at 1005 (emphasis in original) (citations omitted).

SEPTA has not satisfied the test for a petition to strike because we discern no fatal defects on the face of the record. As we discussed earlier, the notice requirements of Rule 237.1 were not offended.

In sum, the trial court did not abuse its discretion nor did it commit an error of law by denying SEPTA’s petition to strike the default judgment entered against it.

AFFIRMED.


text:
    523 A.2d 1176
    In re ADOPTION OF Kristy D. HAMILTON, Termination of Parental Rights. Appeal of Ernest A. HAMILTON.
    Superior Court of Pennsylvania.
    Submitted Dec. 4, 1986.
    Filed April 6, 1987.

      F. Cortez Bell, III, Clearfield, for appellant.
    Before CIRILLO, President Judge, and ROWLEY and POPOVICH, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Clearfield County-Orphans’ Court involuntarily terminating the parental rights of appellant, Ernest Hamilton, to his daughter Kristy. Appellee, Brenda Wilt, the natural mother, and her new husband have custody of the child, and the new husband will seek adoption. Ernest now retains visitation rights through a supersedeas on the termination order.

In June of 1985, Brenda Wilt, Kristy’s mother, filed a petition under 23 Pa.C.S. § 2512(a)(1) to terminate the natural father Ernest’s parental rights to Kristy. The petition recited that Ernest had “shown by conduct continuing over a period of at least six (6) months a settled purpose of relinquishing parental claim to the child.”

After hearing testimony from the parties and their witnesses, the Clearfield County Orphans’ Court entered a “Memorandum and Order” dated May 16, 1986, terminating Ernest’s parental rights. The court relied on both of the dual grounds for termination provided by 23 Pa.C.S. § 2511(a)(1) (“the parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties”).

Ernest appealed the termination order directly, without filing exceptions or motions for post-trial relief, and now challenges the order terminating his parental rights on three grounds:

1) the court erred in finding that Ernest had exhibited conduct evidencing a “settled purpose” of relinquishing parental claim to Kristy;
2) the orphans’ court’s findings of fact, particularly regarding nonpayment of support, conflict with the evidence;
3) the court erred by applying the six-month criterion of the statute presumptively.

Rather than reach the merits of this appeal, we vacate the “Memorandum and Order” because of the orphans’ court’s failure to comply with the Rules of Civil Procedure. Under the rules of equity procedure governing orphans’ court matters, Ernest must have the opportunity to raise his issues before the court in motions for post-trial relief. Pennsylvania Orphans' Court Rule 3.1 provides that pleading and practice in orphans’ court shall conform to pleading and practice in equity, unless otherwise prescribed by statute, supreme court rule, or local orphans’ court special order or rule. Since there are no local orphans’ court rules in Clearfield County governing the filing of exceptions or decrees nisi, the court and parties should have followed the procedure in equity cases.

Pennsylvania Rule of Civil Procedure 1517 provides that in equity actions, the court shall proceed by entering an adjudication including a decree nisi. Post-trial practice then proceeds in accordance with Pa.R.C.P. 227.1 which requires the filing of a motion for post-trial relief from an adjudication or decree nisi.

In this case, the court and parties have completely disregarded Rules 1517 and 227.1. Instead of the required adjudication and decree nisi, the orphans’ court has entered a putative final “Memorandum and Order” terminating parental rights. As no decree nisi was entered, appellant had no opportunity to file exceptions; the court, therefore, had no opportunity to correct any errors prior to entry of the final decree.

In In re Involuntary Termination of Parental Rights to B.M.D., 487 Pa. 387, 409 A.2d 404 (1979), the supreme court determined that a decree involuntarily terminating parental rights was a nullity and vacated the decree where the orphans’ court had entered a purported “final decree” in lieu of the adjudication and decree nisi required by Rule 1517. The supreme court found that the orphans’ court procedure had deprived the parent of the right to file exceptions and have any errors corrected before entry of a final decree.

In accord is Cornell v. D’ltalia, 287 Pa.Super. 233, 429 A.2d 1186 (1981), where this court sua sponte remanded an appeal from an equity decree, finding that no decree nisi nor exceptions had been filed before the equity court rendered its final decree. This court stated that, “As appellant’s premature appeal was a result of both their and the court’s failure to follow Rules 1516-1519, we believe they should not be penalized for taking this appeal.” 287 Pa.Super. at 238, 429 A.2d at 1188-89 (Pa.R.C.P. 1518, providing for the filing of exceptions, has been rescinded and replaced by Pa.R.C.P. 227.1, providing for the filing of a motion for post-trial relief).

B.M.D. is on all fours with and controls the disposition of this appeal. Both involve an involuntary termination order entered as a final decree with no indication that it was a decree nisi to which exceptions (or post-trial motions) should properly have been filed. Consequently, also, the record has been compromised in that the orphans’ court has not made explicit findings of fact on all important issues. See Pa.R.C.P. 1517(a)(2) (“the adjudication shall consist of ... (2) a closely condensed chronological statement ... of all the facts which are necessary to be known in order to determine the issues”). For example, although the trial court relied in part on the criterion of 23 Pa.C.S. § 2511(a)(1) which allows termination of parental rights where “[t]he parent by conduct continuing for a period of at least six months ... has evidenced a settled purpose of relinquishing parental claim to the child,” the court did not specifically identify the period or periods during which Ernest had exhibited a “settled purpose” of relinquishing his parental claim to Kristy. A petitioner seeking to terminate the rights of a natural parent to his child bears the burden of establishing grounds for termination by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Because of a lack of explicit factual findings, and the trial court’s lack of opportunity to address appellant’s arguments, the record on review has been impaired and should be remanded for entry of a proper decree and post-trial motions.

A contrary line of authority, however, does not remand, but excuses the appellant’s failure to file exceptions to the decree and entertains the appeal on the merits. In Commonwealth v. Derry Township, 466 Pa. 31, 351 A.2d 606 (1976), the supreme court found that an order of the commonwealth court did not contain any findings of fact, nor conclusions of law, nor any language indicating that it was a decree nisi, or that the parties were required to file exceptions in order to perfect their appeal. The court then excused the failure to file exceptions. The Derry court did not, however, address Community Sports, Inc. v. Oakland Oaks, 429 Pa. 412, 240 A.2d 491 (1968), which held that the failure to comply with the Rules of Civil Procedure rendered the decree in that case a nullity, and required vacation of the decree. In In re Adoption of R.W.B., 485 Pa. 168, 401 A.2d 347 (1979), the supreme court decided that Fayette County Orphans’ Court decrees were final decrees unless they specifically stated otherwise. The court relied on § 731 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 731 (repealed 1980), which stated in part that an orphans’ court decision “shall be a final decree, unless exceptions thereto are authorized by rule of court or the decree discloses that it is not intended as such.” Because the rules of the Orphans’ Court Division of the Court of Common Pleas of Fayette County did not authorize exceptions to be taken to an adoption decree, the court found that the natural mother’s failure to file exceptions did not constitute a waiver of the issues raised on appeal. 485 Pa. at 171 n. 1, 401 A.2d at 348 n. 1. Since the supreme court’s decision in R.W.B., however, section 731 of the Probate, Estates and Fiduciaries Code has been repealed. Act of Apr. 28, 1978, No. 53, sec. 8(5), 1978 Pa.Laws 202, 366 (effective June 27, 1980).

In the absence of statutory law specifying a different procedure, or of any special order or general rule in Clear-field County regarding the filing of exceptions or decrees nisi in orphans’ court matters, Orphans’ Court Rule 3.1 dictates that the court and parties should have followed equity procedure, which in turn required a decree nisi and motions for post-trial relief before the entry of a final, appealable decree.

While we acknowledge the split in authority between those decisions which vacate nonconforming decrees sua sponte and those which determine the appeals on the merits, we find the latter line of authority sufficiently distinguishable in that in most of these cases the court was responding to the contention that the appellant had waived the issues on appeal by failing to file exceptions. Thus, in Storti v. Minnesota Mutual Life Insurance Co., 331 Pa.Super. 26, 28-29, 479 A.2d 1061, 1062 (1984), we said:

Where an order neither comports with the requirements of Pa.R.C.P. 1517 nor contains a suggestion that exceptions must be filed in order to preserve a right of appeal, the failure to file exceptions will be excused. Commonwealth v. Derry Township, 466 Pa. 31, 41-42, 351 A.2d 606, 611 (1976); Barton v. Penco, 292 Pa.Super. 202, 204, 436 A.2d 1222, 1223 (1981); Greenwood Township v. Kefo, Inc., 52 Pa.Cmwlth. 367, 370, 416 A.2d 583, 594-585 (1980). The failure to file exceptions ..., therefore, will not defeat appellate review.

Accord In re Estate of Dorone, 349 Pa.Super. 59, 64, 502 A.2d 1271, 1274 (1985); Tallon v. Liberty Hose Co. No. 1, 336 Pa.Super. 530, 534 n. 1, 485 A.2d 1209, 1211 n. 1 (1984); see also In re Involuntary Termination of Parental Rights to B.L., 316 Pa.Super. 175, 176 n. 1, 462 A.2d 851, 852 n. 1 (1983) (Popovich, J., joined by Rowley & Wieand, JJ.) (considering R.W.B. and B.M.D. and concluding that failure to file exceptions did not constitute waiver where local court rule provided that all orphans’ court decrees were final); cf. In re Adoption of T.N.J., 321 Pa.Super. 355, 356 n. 1, 468 A.2d 517, 517 n. 1 (1983) (Popovich, J., joined by Wickersham & Rowley, JJ.) (cautioning that thenceforth appeal should be taken from final decree, citing B.M.D.).

We, on the other hand, are not concerned with the possibility that Ernest has waived his arguments, because clearly under the foregoing decisions he has not. Instead, our decision to follow B.M.D. in vacating the termination order as a “nullity” stems from our perception that the decree as it stands is incomplete, and that appellate review of this important decision will be more meaningful if the orphans’ court first enters an adjudication which makes explicit the court’s factual findings, and then entertains and addresses the particular objections raised to its findings and conclusions before making the decree final. Of course, insofar as our disposition should also be premised on the weight of authority, we note that the B.M.D. case which we have chosen to follow itself “continues a well established precedent.” Cornell v. D’ltalia, 287 Pa.Super. at 237, 429 A.2d at 1188 (citing six cases in accord and two contra); see also Miller v. Miller, 359 Pa.Super. 183, 518 A.2d 841 (1986); Crestwood School Dist. v. Topito, 76 Pa.Commw. 321, 463 A.2d 1247 (1983).

The decree involuntarily terminating parental rights is vacated, and the record is remanded for proceedings in accordance with the Rules of Civil Procedure, including their requirement that the orphans’ court enter an adjudication and decree nisi under Rule 1517 and give the parties an opportunity to file for post-trial relief under Rule 227.1. Jurisdiction relinquished.


author: DEL SOLE, Judge:

text:
    523 A.2d 1179
    COMMONWEALTH of Pennsylvania v. Donald M. WERTZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted January 21, 1987.
    Filed April 9, 1987.

      Randolph T. Borden, Hawley, for appellant.
    Ellen L. Cohen, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
    Before BROSKY, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

This appeal is from an order of the Court of Common Pleas of Blair County, Pennsylvania, which denied a Petition of the Farview State Hospital Administration to have Appellant’s further psychiatric hospitalization be in a less restricted facility.

Appellant Wertz was charged with false alarms to agencies of public safety, a misdemeanor, in June of 1983, and criminal homicide in November of 1983. These charges were consolidted and on August 24, 1984, following a hearing, the Honorable R. Bruce Brumbaugh found Wertz not guilty of all charges because of lack of criminal responsibility; Mental Health Procedures Act of July 9, 1976, codified at 50 P.S. § 7304(g)(2). The court ordered Appellant’s commitment for a period of one year at Farview State Hospital.

On August 19, 1985, Farview State Hospital petitioned the trial court to recommit Appellant, pursuant to section 305 of the Mental Health Procedures Act of 1976, 50 P.S. § 7305. On October 17, 1985, after a hearing, the trial court granted Farview’s petition for recommitment, but denied the petition for transfer to a less secure facility. This appeal followed which raises the sole issue of whether the trial court erred in denying the petition to transfer the Appellant to a less restrictive facility. The Appellant respectfully requests that This Honorable Court reverse the decision of the Court of Common Pleas of Blair County rendered on October 17, 1985 and enter an Order transferring Appellant to Mayview Hospital. The Appellee maintains that the appeal is moot because Appellant has had a subsequent annual recommitment hearing and has been recommitted to Farview, therefore the relief he is presently seeking from the October 17, 1985 order, namely to be committed to a less secure facility for the period from August 24, 1985 to August 23, 1986 cannot be granted. However, since the record in this case contains no Motion for Post-Trial Relief, we find the issue raised by the Appellant to be waived and we decline to reach the merits of these arguments.

Pa.R.A.P. 302(a) provides that “[ijssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pursuant to Pa.R.C.P. 227.1, post-trial relief may not be granted unless the grounds in support of such motion are specified and filed within ten days after adjudication. Rule 227.1 is applicable to a decision in the case of judge sitting without a jury. The decision to deny the request of Farview State Hospital to transfer the Appellant to Mayview State Hospital was made at the conclusion of a recommitment hearing conducted pursuant to § 305(a) of the Mental Health Procedures Act of 1976, 50 P.S. § 7305(a). Section 401(a) of this act directs that “whenever a person who is charged with a crime, or who is undergoing sentence, is or becomes severely mentally disabled, proceedings may be instituted for examination and treatment under the civil provisions of this act in the same manner as if he were not so charged.” Therefore, the Appellant’s commitment was a civil proceeding and likewise his recommitment hearing was a civil proceeding.

This court in In re Wilson, 303 Pa.Super. 326, 449 A.2d 711 (1982), noted that the Rules of Civil Procedure provide that unless a different procedure is expressly mandated, all civil proceedings are to conform to the rules relating to a civil action. More specifically, In re Wilson, held that the Rules of Civil Procedure are applicable to cases involving civil commitments, and as such in order to preserve issues for appellate review, timely exceptions must be filed.

Applying our holding in In re Wilson to the case before us in which the Appellant has been recommited through a civil proceeding, his failure to file a Motion for Post-Trial Relief to the adjudication below pursuant to Pa.R.C.P. 227.1 has resulted in a waiver of the issue raised for appellate review. Order affirmed.

      . Pa.R.C.P. 1038(d) which was cited in In re Wilson was rescinded on October 19, 1983, effective January 1, 1984. See Rule 227.1 for post-trial relief following a trial without a jury.


text:
    523 A.2d 1181
    COMMONWEALTH of Pennsylvania, Appellant, v. Victor ROCCO.
    Superior Court of Pennsylvania.
    Submitted Nov. 6, 1986.
    Filed April 8, 1987.

      Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellant.
    Ruth R. Shafer, Assistant Public Defender, Media, for appellee.
    Before McEWEN, DEL SOLE and KELLY, JJ.
   DEL SOLE, Judge:

The Commonwealth in this case has appealed the order of the trial judge which granted Victor Rocco’s petition for disposition under Section 17 of the Controlled Substance, Drug Device and Cosmetic Act. The statute provides: § 780-117. Probation without verdict.

A person may be entitled to probation without verdict under the following circumstances:
(1) A person who has not previously been convicted of an offense under this act or under a similar act of the United States, or any other state, is eligible for probation without verdict if he pleads nolo contendere or guilty to, or is found guilty of, any nonviolent offense under this act. The court may, without entering a judgment, and with the consent of such person, defer further proceedings and place him on probation for a specific time period not to exceed the maximum for the offense upon such reasonable terms and conditions as it may require.
Probation without verdict shall not be available to any person who is charged with violating clause (30) of subsection (a) of section 13 of this act and who is not himself a drug abuser and who does not prove the fact of such drug abuse to the satisfaction of the court.
(2) Upon violation of a term or condition of probation, the court may enter a judgment and proceed as in any criminal case, or may continue the probation without verdict.
(3) Upon fulfillment of the terms and conditions of probation, the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal shall be without adjudication of guilt and shall not constitute a conviction for any purpose whatever, including the penalties imposed for second or subsequent convictions: Provided, That probation without verdict shall be available to any person only once: And further provided, That notwithstanding any other provision of this act, the prosecuting attorney or the court, and the council, shall keep a list of those persons placed on probation without verdict, which list may only be used to determine the eligibility of persons for probation without verdict and the names on such lists may be used for no other purpose whatsoever.
35 P.S. § 780-117.

We will view a court’s disposition under Section 17 as an exercise of the court’s discretion in sentencing. The allowance of appellate review of sentencing in such a case is permitted by statute as follows:

§ 9781. Appellate review of sentence.
* * * * * *
(b) Allowance of appeal. The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter. 42 Pa.C.S.A. § 9781(b).

Having reviewed the record, we find no substantial question that the sentence imposed was not appropriate. This was Mr. Rocco’s first offense. The Commonwealth could provide no evidence that Mr. Rocco was not a drug abuser. The trial court granted the Appellee’s petition for disposition under Section 17 on October 10, 1985, but delayed sentencing until November 26, 1985 pending receipt of a diagnostic evaluation by the Court Service’s diagnostic social worker. This evaluation is a part of the record and provides support for the trial court’s disposition of the case.

We therefore decline to allow an appeal in this case pursuant to this Court’s discretion under 42 Pa.C.S.A. § 9781(b).

Appeal dismissed.

      . The comment to Pa.R.A.P. 902 provides that filing a notice of appeal, as the Commonwealth has done in this case, operates as a "petition for allowance of appeal”. See also Commonwealth v. Drumgoole, 341 Pa.Superior Ct. 468, 491 A.2d 1352 (1985), PINES, Pennsylvania Appellate Practice: Procedural Requirements and the Vagaries of Jurisdiction, 91 DICK.L.REV. 55, 131-32.

      . The Commonwealth’s brief lacks the separate statement listing reasons'why there is a “substantial question” as to the appropriateness of the sentence which is required by Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). We note that even if the Commonwealth had followed the correct procedure we would reach the same result.


author:
MONTGOMERY, Judge:
      BROSKY, Judge,

text:
    524 A.2d 498
    Sharon WEBER, Appellant, v. Carolyn WEBER and Robert Weber, Appellees.
    Superior Court of Pennsylvania.
    Argued July 17, 1986.
    Filed Feb. 17, 1987.
    Reargument Denied May 1, 1987.
    Petition for Allowance of Appeal Granted Sept. 9, 1987.

      Eileen D. Yacknin, Pittsburgh, for appellant.
    Louis Vaira, Pittsburgh, for appellees.
    Before BROSKY, MONTGOMERY and HESTER, JJ.
   MONTGOMERY, Judge:

This appeal is from an order granting summary judgment and dismissing appellant’s complaint for partial custody of Jennifer Weber, appellant’s sister and appellees’ minor daughter. For the reasons that follow, we affirm.

Appellees Carolyn and Robert Weber are the parents of both appellant Sharon Weber and Jennifer Weber, who is still a minor. Jennifer resides with her parents. Sharon is an adult who is unmarried and resides with an unmarried man in a residence separate from her parents and sister. Because Mrs. Weber does not approve of Sharon’s living arrangements, she refused to permit Jennifer to visit with Sharon at Sharon’s residence or other places outside the parents’ home. Sharon therefore filed a complaint seeking partial custody of Jennifer. Appellees filed a motion for summary judgment, asserting that Sharon had not stated a cause of action. The trial court agreed and granted the motion, dismissing Sharon’s complaint. We agree that, absent statutory authority, an adult sister does not have standing to bring an action for partial custody of a minor child over the objections of the minor child’s parents.

The issue in this case is not simply whether Sharon and Jennifer should be permitted to visit with one another. Rather, the issue encompasses the more difficult question of whether and to what extent the courts can interfere in a decision made by parents of a minor child regarding who that child may associate with.

The right to raise one’s children has long been recognized as one of our basic civil rights. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); In re Rinker, 180 Pa.Super. 143, 117 A.2d 780 (1955). Freedom of personal choice in matters of family life, and the concomitant freedom from unwarranted governmental intrusion, is a fundamental liberty interest protected by the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). For these reasons, governmental intrusion into the family is warranted only in exceptional circumstances. The statutory bases for court interference with the parents’ right to custody are limited and specific, reflecting that philosophy. See, 11 P.S. § 2208 (taking an abused child into protective custody); 23 P.S. § 301 (custody and visitation rights between parents in a divorce action); 23 Pa.C.S. § 2511 (involuntary termination of parental rights); 23 Pa.C.S. § 5311-5313 (grandparents visitation); 42 Pa.C.S. § 6351, 6352 (disposition of dependent and delinquent children).

Appellant concedes that this case does not fall within any of the statutory bases for jurisdiction. Further, appellant does not challenge the fitness of appellees as custodians of Jennifer. Rather, she questions the wisdom of their decision not to expose Jennifer to a life style of which they disapprove. Whether this is a wise decision or not is irrelevant; the point is that it is their decision and they have a right to make it.

In a similar case, this court held that grandparents do not have standing to seek visitation or partial custody, over the parents’ objection, unless they come within the purview of the Grandparents’ Visitation Act. Herron v. Seizak, 321 Pa.Super. 466, 468 A.2d 803 (1983). In that case, too, the issue was not whether the parents had made a wise decision but whether the court had the power to overrule the parents’ decision, absent statutory authority. In that case, the court noted that neither case nor statutory law “legitimizes such an intrusion by the courts into family life.” Id., 321 Pa.Superior Ct. at 470, 468 A.2d 805. Since the grandparents had not made any “allegation that would justify an interference with [the parents’] decision not to permit visitation” the court refused to “intervene in this family matter in which no legal rights are at issue.” Id. We believe that analysis to be appropriate to this case as well. Finding that appellant has not alleged a right to court intervention into this family matter, we affirm the order dismissing appellant’s petition.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

Because of the current state of the law, I am constrained to concur in the result reached by the majority. I write separately, however, because I feel that this is an area to be more fully examined and acted upon by the legislature of this Commonwealth.

I am of the opinion that siblings have a right to visit with one another, in certain circumstances, if it is considered to be in the best interest of the child or children involved. The importance of sibling relationships has been well recognized by the courts. In Albright v. Com. ex rel. Fetters, 491 Pa. 320 at 325, 421 A.2d 157 at 160 (1980) our Supreme Court stated that, “It has always been a strong policy in our law that in the absence of compelling reasons to the contrary, siblings should be raised together whenever possible.” In In re Davis, 502 Pa. 110, 124, 465 A.2d 614, 621 (1983) the Supreme Court of Pennsylvania reaffirmed this when it echoed the “well founded policy that brothers and sisters should be raised together in one household.” The most definitive statement of this policy, comes from the New Jersey Superior Court. In L. v. G. 203 N.J.Super. 385, 497 A.2d 215 at 222 (1985), a case similar to the one at bar, the court held that:

... this Court finds that the relationship between a child and his/her siblings is a significant and unique one, from which a myriad of benefits and experiences may be derived. The bonds which develop between brothers and sisters are strong ones, and are, in most cases, irreplaceable ... Therefore, this Court finds that siblings possess the natural, inherent and inalienable right to visit with each other. This right is, of course, subject to the requirement that such visitation be in the best interest of the minor child, for it is that which is of paramount concern to this Court.

I agree with this holding.

The relationships between siblings should be closely guarded and nurtured, since it is those relationships that will provide a harbor from which a child may find her way through the often turbulent waters of life. While it is true that parents may serve this function as well, we must realize that more often than not, parents predecease their children, creating the situation where siblings must comfort, support and depend upon each other. Even in less drastic circumstances, because siblings are closer in age and have shared life experiences, it would be quite natural for them to seek each other’s counsel and companionship on routine matters as well.

By forcing Sharon and Jennifer to remain apart there may be more harm done to Jennifer than merely depriving her of a potential supportive relationship. If there already exists a deeprooted bond between the sisters, severing it may cause Jennifer to suffer a deep sense of loss and undermine her sense of security and stability.

Both the trial court and the majority here, rely upon this court’s decision in Herron v. Seizak, 321 Pa.Super. 466, 468 A.2d 803 (1983) in concluding that appellant has no right to seek partial custody of her minor sibling. Their reliance upon that holding is unfounded for it deals with a different set of circumstances since it involves grandparents and an interpretation of the Grandparent’s Visitation Act.

In Herron this court denied grandparents the right to sue for visitation of their grandchild under the Custody and Grandparents Visitation Act, 23 P.S. § 1001 et seq. because appellants had failed to meet the criteria set forth in the statute required to qualify them for a cause of action under that Act.

In the case sub judice, no relevant statutory constriction exists. In the absence of this we must look to the common law. The courts of this state have, in the past, recognized the rights of non-parents to sue for custody of a minor child, Commonwealth ex rel. Williams v. Miller, 254 Pa. Super. 227, 385 A.2d 992 (1978) and Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983) and “visitation is correlative to custody”, Williams, supra, 254 Pa.Superior Ct. at 230, 385 A.2d at 994.

In view of the line drawn between custody and visitation, we should discuss the difference between the three types of custodial arrangements in Pennsylvania: custody; partial custody; and visitation. Under the Revised Uniform Reciprocal Enforcement of Support Act (1968), 23 Pa.C.S.A. § 5302 the following definitions are used:

“Legal custody.” The legal right to make major decisions affecting the best interest of a minor child, including, but not limited to, medical, religious and educational decisions.
“Partial custody.” The right to take possession of a child away from the custodial parent for a certain period of time.
“Visitation.” The right to visit a child. The term does not include the right to remove a child from the custodial parent’s control.

These distinctions were noted by our Supreme Court in Commonwealth ex rel. Zaffarano v. Genaro, supra, 500 Pa. at 259-260, 455 A.2d at 1182:

The distinguishing elements of these arrangements are “[t]he length of existing visits, the frequency with which they occur, whose home the visits take place in, and who is in effective control of the children during the visit.” Note, Visitation Rights of a Grandparent Over the Objection of a Parent: The Best Interests of the Child, 15 J.Fam.L. 51, 67 (1976-77). Thus, at one end of the spectrum is custody, which is a relatively permanent arrangement that involves keeping and caring for a child on a continual basis and that affords the custodian the greatest degree of day-to-day control over the child. At the opposite end of the spectrum is visitation, which allows for the least amount of control over the child and contacts of a relatively short duration since visits must be held in the presence of the child’s custodian. Between these extremes is partial custody, which involves greater control over the child than does visitation because it takes place away from the child’s custodian, and which may involve contacts of relatively long duration, such as a weekend or a month of summer vacation, (footnotes omitted).

Because there are no statutory provisions which address sibling custody/visitation rights, and in view of the changing face of today’s family, perhaps the legislature should delineate, more explicitly, sibling rights in this matter.

      . Appellant’s brief mentions the possible abuse of Jennifer by an older brother. We do not believe this issue is relevant to the determination of whether Sharon has standing to bring a partial custody action. If Sharon believes Jennifer to be in danger of abuse, she has the right, if not the duty to report same to the appropriate authorities and/or file a dependency petition in juvenile court. 11 P.S. § 2005; 42 Pa.C.S. § 6334.

      . We have been unable to discover any Pennsylvania cases where visitation or partial custody actions have been entertained absent (1) a divorce or separation, (2) the death of one of the natural parents who would ordinarily have protected the petitioner’s visitation privileges, (3) a delinquency or dependency proceeding, or (4) a situation where the petitioner had physical custody whether through court order or informally. The New Jersey case relied on by appellant involved a situation where the natural mother, who might have been expected to preserve the sister’s visitation privileges, was deceased. L. v. G., 203 N.J.Super. 385, 497 A.2d 215 (1985).

      . "Access to Children: Towards a Model Statute for Third Parties.” 15 Family Law Quarterly 165 (1982), pg. 191 Zaharoff.


text:
    524 A.2d 501
    Joseph Randall EGELKAMP, Appellant, v. Barbara EGELKAMP.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1987.
    Filed March 17, 1987.
    Reargument Denied May 1, 1987.

      George A. Priestley, Philadelphia, for appellant.

      Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.
   CIRILLO, President Judge:

This is an appeal from a custody order. We affirm.

Three issues are presented for our review: (1) did the trial court err by allegedly basing its decision on the merits of appellant’s religion; (2) did the trial court err by refusing to permit testimony from one of appellant’s witnesses; and (3) did the trial court’s opinion adequately discuss the evidence.

This custody dispute involves the parties’ two minor boys, Christian and Erik, and is ancillary to the parties’ divorce proceedings. Appellant Joseph Egelkamp belongs to what the trial court described as a fundamentalist religion. Appellee Barbara Egelkamp was a member of the same religion until she apparently fell from grace. The trial court opined that the different religious views of the parties were the source of their disagreements.

The order that was appealed from granted legal custody of Christian and Erik to their mother, Barbara Egelkamp. Their father, appellant Joseph Egelkamp, was granted substantial visitation rights. At the time of the order, May of 1986, Christian was 6 years old and Erik was 3 years old.

The Pennsylvania Supreme Court has long recognized that the scope of appellate review in a custody matter is broad. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 236, 478 Pa. 800, 806 (1984) (citing Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295-96, 368 A.2d 635, 637 (1977)). Although we are not bound by the trial court’s factual inferences, we may not interfere with the trial court’s conclusions unless they are “unreasonable in light of the trial court’s factual findings ... and, thus, represent a gross abuse of discretion.” Robinson, 505 Pa. at 237, 478 A.2d at 806 (citing Bohachensky v. Sembrot, 368 Pa. 228, 81 A.2d 554 (1951); Carson, supra).

At every stage of legal proceedings we must bear in mind that the “overriding goal in any child custody matter is to render a decision encompassing the ‘best interests’ of the child.” Priester v. Fayette County Children and Youth Services, 854 Pa.Super. 562, 565, 512 A.2d 683, 684 (1986) (Cirillo, P.J.) (citing Parker v. MacDonald, 344 Pa.Super. 552, 559, 496 A.2d 1244, 1247-48 (1985)). “Best interests” of the child is a term that has been defined as “including the child’s physical, intellectual, moral and spiritual well-being.” Id. (citing Hartman v. Hartman, 328 Pa.Super. 154, 476 A.2d 938 (1984)). As this Court has previously stated, “The issues that influence a child’s development are among the most important matters that we consider.” Priester, 354 Pa.Super. at 566, 512 A.2d at 685.

I

Joseph Egelkamp argues that by allegedly basing its custody decision on the merits of his religion, the trial court erred. We disagree.

The trial court explicitly stated in its opinion that the merits of the father’s religion could not form the basis of its custody decision. Although courts may not render value judgments on the merits of a particular religious view or belief, they may properly examine the effect that those views or beliefs have on the development of a child involved in a custody dispute. Morris v. Morris, 271 Pa.Super. 19, 28, 412 A.2d 139, 144 (1979). See generally, K.L.H. v. G.D.H., 318 Pa.Super. 330, 340, 464 A.2d 1368, 1374 (1983) (religion is not determinative of child custody); Annotation, Religion as a Factor in Child Custody and Visitation Cases, 22 A.L.R. 4th 971, 989 (1983) (same).

The father claims that the trial court’s observation that the children’s best interests are served by exposing them “to all vistas, influences, religions, human ideas and philosophies,” evidenced the trial court’s alleged use of religion as an improper basis for its decision. Our scrutiny of the record indicates that this observation was an understandable response to the testimony presented regarding the effect of the father’s religious views on the children’s development. This observation demonstrates that the trial court properly considered the effect of the father’s religious views on his children as one of several factors in making the custody decision. As the trial court’s opinion expressly states, and as our reading of the record confirms, consideration of Joseph Egelkamp’s religious beliefs was not a determinative factor in the custody decision made by the trial court.

Rather, to the extent that any one factor was determinative, it seems that the trial court relied on the principle that “the continuous residence of children with one parent may be controlling in a custody dispute.” K.L.H. v. G.D.H., 318 Pa.Super. at 338, 464 A.2d at 1373 (emphasis in original) (citing Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981)). In the instant case, custody was granted to the mother who was the primary caretaker of the children during the marriage as well as at her apartment after the separation of the parties. Thus, the trial court could have properly found that continued residence with the mother was a valid basis upon which to make a custody determination that served the best interests of Christian and Erik. See generally, J. Goldstein, A. Freud and A. Solnit, Beyond the Best Interests of the Child, 31-32 (1973) (“Continuity of relationships, surroundings, and environmental influence are essential for a child’s normal development____ The instability of all mental processes during the period of development needs to be offset by stability and uninterrupted support from external sources.”) Therefore, we conclude that the trial court’s custody decision was not made on an improper basis.

II

Appellant’s next argument relies on the rule announced in Commonwealth ex rel. Leighann A. v. Leon A., 280 Pa.Super. 249, 421 A.2d 706 (1980), that when reviewing a custody order, if we determine that “ ‘the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded.’ ” Id., 280 Pa.Superior Ct. at 253, 421 A.2d at 708 (quoting Lewis v. Lewis, 267 Pa.Super. 235, 240-41, 406 A.2d 781, 783-84 (1979)). Appellant argues that because the trial court excluded testimony from the pastor of his church, the record in this case is so incomplete that we must remand. We disagree.

In Leon A., supra, we remanded because the lack of an evaluation of the suitability of the father’s home was a deficiency in the record which precluded a comprehensive review of the custody order. In addition, the record in that case failed to include evidence regarding the comparative financial situations of the parties.

In the case at bar, appellant asserts that if permitted to testify, the pastor of his church would have provided insight regarding the doctrine and practices of the church as well as how former members of the church were treated by current members. The trial court found that the pastor’s testimony regarding the doctrine of his church would have been irrelevant and collateral to the custody issue. Testimony was received, however, from a psychologist who had interviewed the pastor and who had addressed the effect of appellant’s religion on the parties and their children.

The decision whether to admit or exclude evidence will not be disturbed on appeal absent an abuse of discretion. Concorde Investments, Inc. v. Gallagher, 345 Pa.Super. 49, 56, 497 A.2d 637, 641 (1985). The trial court determined that the pastor’s proposed testimony concerning the doctrines of his church was collateral to the primary issue of custody and was therefore excluded. It remains the trial court’s function to exclude evidence which would divert attention from the primary issues in the case. Gallegor by Gallegor v. Felder, 329 Pa.Super. 204, 211, 478 A.2d 34, 38 (1984).

We find that the trial court did not abuse its discretion by excluding testimony which it deemed unrelated to the primary issue in this matter. It follows from this finding that we need not remand in order to rectify an alleged deficiency in the record.

III

The last issue that appellant presents for our review is whether the trial court’s opinion adequately discussed the evidence. This issue is somewhat related to the preceding one and is based on the principle that in a custody matter the trial court must file a comprehensive opinion containing its findings and conclusions regarding all pertinent facts. Commonwealth ex rel. Leighann A. v. Leon A., 280 Pa.Super. at 252-53, 421 A.2d at 708.

In Leon A., we remanded because the trial court opinion lacked an analysis of evidence critical to the custody determination. The trial court opinion in the instant case suffers from no such defect.

Appellant maintains that the trial court opinion is inadequate because it does not fully discuss expert testimony provided by a psychologist. Our reading of the trial court opinion and supplemental opinion indicates that there was an adequate analysis of evidence critical to the custody determination, including testimony of the psychologist.

To support his position that the trial court opinion is inadequate, appellant cites Kimmey v. Kimmey, 269 Pa.Super. 346, 409 A.2d 1178 (1979) and In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979). Our interpretation and application of these cases does not alter our finding that the trial court opinion and supplemental opinion in the instant case are adequate. In Kimmey, the Court remanded after finding that the trial court did not adequately explain the varying weight it afforded to different witnesses nor did it discuss how certain conflicting evidence was balanced. In the White case, the Court remanded after concluding that the trial court opinion did not offer sufficient information regarding the credibility of witnesses or the suitability of the mother for custody purposes.

The trial court’s opinion and supplemental opinion in the case before us do not suffer from the factual deficiencies which we detected in the Kimmey and White decisions. The trial court in this case sufficiently analyzed and discussed the pertinent testimony of the various witnesses as well as the weight to be given to each. Based on these findings, the trial court concluded that it was in the best interests of the children for appellee to have custody of Christian and Erik. We find that the trial court adequately analyzed and discussed all the evidence critical to its custody determination and we will not disturb it on this basis.

ORDER AFFIRMED.


author: JOHNSON, Judge:

text:
    524 A.2d 505
    COMMONWEALTH of Pennsylvania v. Andre STANCIL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 2, 1987.
    Filed April 13, 1987.

      David L. Pallett, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

We are called upon to consider whether a defendant’s right to a speedy probation revocation hearing is enjoined where that hearing is held after the expiration of the probationary term and no reasons for a delay in holding the hearing are offered. We also must decide whether counsel was ineffective for failing to object to an unexplained delay in holding a probation revocation hearing. We find that Stancil’s right to a speedy revocation hearing was violated and that counsel was ineffective for failing to raise this objection.

On August 28, 1980, Stancil was found guilty of simple assault and recklessly endangering another person. Stancil was subsequently sentenced on November 30, 1980 to two (2) years probation and ordered to pay restitution to the victim in the amount of $359.22. On May 15, 1985 following a violation of probation hearing, Stancil’s probation was revoked and a new two (2) years probation imposed. Stancil was further ordered to make restitution to the victim in the amount of $359.22 to be paid in monthly amounts of $50.00 commencing on August 15, 1985. This timely appeal followed.

The Statement of Questions Involved set forth in appellant’s brief presents five issues for our review:

1. Did undue and unreasonable delay result when a violation of probation hearing for failure to pay restitution was not held until five years after conviction and three years after the end of the two year probationary term.
2. Did ineffective assistance of counsel result where counsel representing the defendant at the 1985 violation of probation hearing failed to raise the issue of unreasonable delay in holding said hearing.
3. Did the District Attorney’s Office and Probation Department demonstrate a lack of due diligence where said officials failed until after the expiration of the probationary period to request a violation of probation hearing on the alleged failure to pay restitution.
4. Did ineffective assistance of counsel result where counsel representing the defendant at the violation of probation hearing failed to raise the lack of due diligence of county and state officials in requesting a speedy violation of probation hearing.
5. Were the defendant’s due process rights under the United States Constitution and the Pennsylvania Constitution violated where:
(a) a speedy violation of probation hearing was not held; and
(b) written notice of the claimed violations and of reasons relied upon by the fact finder for the claimed violation were not provided to the defendant.

Stancil, however, fails to address these issues separately in his brief in violation of Pa.R.A.P. 2119(a). Instead of addressing each issue separately, appellant under a single argument contends that undue and unreasonable delay resulted where his violation of probation hearing was held three years after the expiration of his probation term. Stancil further argues that prior counsel was ineffective for failing to raise that issue. Despite appellant’s failure to strictly comply with Pa.R.A.P. 2119(a), we will address the merits of this appeal. Pa.R.A.P. 105(a).

Pennsylvania Rules of Criminal Procedure 1409 provides in relevant part:

Whenever a defendant has been placed on probation or parole, the judge shall not revoke such probation or parole as allowed by law unless there has been a hearing held as speedily as possible at which the defendant is present and represented by counsel and there has been a finding of record that the defendant violated a condition of probation or parole.

Pa.R.Crim.P. 1409. While there is no presumptive period in which a defendant’s probation must be revoked, revocation hearings must be held with reasonable promptness after a probation officer is chargeable with knowing that probation has been violated. Commonwealth v. Gochenaur, 331 Pa.Super. 187, 480 A.2d 307 (1984). In evaluating the reasonableness of the delay in holding a probation hearing we will examine the length of the delay, the reasons for the delay and any prejudice inuring to the defendant as a result of the delay. Commonwealth v. McCain, 320 Pa.Super. 394, 467 A.2d 382 (1983).

Here Stancil’s probation revocation hearing was held in May, 1985, three years after the expiration of his probationary term. The evidence presented at the revocation proceedings indicates that Stancil never complied with the court’s sentence of November 12, 1980 to make restitution to the victim. The reasons given for revoking Stancil’s probation were that he never reported to the Probation Department and that he failed to make restitution. Other than the fact that appellant was incarcerated from 1981 until August 1984, no explanation was offered for the delay in holding Stancil’s revocation hearing. The trial court even concedes that there was an unnecessary delay in holding appellant’s revocation hearing. Opinion, 9/24/86 at 3-4.

Although Appellant does not allege any prejudice from this delay, we have held that in cases where probation revocation hearings are not held until after the expiration of the probationary term, a certain amount of prejudice necessarily follows from the fact of the expiration of that probation. Commonwealth v. McCain, supra. Accordingly, we find that Stancil was prejudiced by the delay. In light of the preceding discussion, it is clear that appellant was denied his right to a speedy hearing. With respect to Appellant’s claim that counsel was ineffective for failing to assert the delay, we agree.

To evaluate claims of ineffective assistance of counsel we must first determine whether the claim underlying the allegation of ineffectiveness is of arguable merit. If we determine that that underlying claim is of arguable merit, we must then consider whether the course chosen by counsel had some reasonable basis designed to promote defendant’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, in order to prevail, defendant must demonstrate that counsel’s defective performance was prejudicial. Commonwealth v. Clemmons, 505 Pa. 356, 362, 479 A.2d 955, 958 (1984). The burden of establishing ineffectiveness rests upon the defendant, Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984).

Stancil has met his burden of establishing ineffectiveness here. In light of our analysis of the unreasonable delay in holding the revocation hearing, we are convinced that counsel was ineffective for failing to assert that delay at the time of the hearing.

In consideration of the circumstances of this case, we are constrained to reverse the order revoking probation and vacate the judgment of sentence. Because the original order of restitution made on November 11, 1980 is still enforceable, we will remand for proceedings to determine Stancil’s ability to pay and a schedule of repayment. Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986).

Order reversed. Judgment of sentence vacated. Case remanded for proceedings in accordance with this opinion.

      . Pa.R.A.P. 2119(a) provides that:
      The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part — in distinctive type or in type distinctively displayed — the particular point treated therein, followed by such discussion and citation as are deemed pertinent.


author: TAMILIA, Judge:

text:
    524 A.2d 507
    COMMONWEALTH of Pennsylvania v. Roberto CRUZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 25, 1987.
    Filed April 13, 1987.

      Colie B. Chappelle, Philadelphia, for appellant.
    Leonard Deutchman, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, President Judge, and TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

Appellant was found guilty of second degree murder, robbery, possessing an instrument of crime and conspiracy. He was sentenced to life imprisonment on the murder conviction with concurrent sentences imposed on the possessing an instrument of crime and conspiracy convictions.

The facts, as set forth by the lower court, indicate that on September 9, 1981, appellant and a co-conspirator robbed a milkman at riflepoint. Appellant shot the milkman in the chest resulting in his death. Appellant was interviewed by the police on that day at which time he asserted that the co-conspirator was the shooter and disavowed participation in the robbery. Appellant was released and subsequently fled the jurisdiction. Further investigation led the police to believe appellant was involved in the robbery, a warrant was issued for his arrest, and he was ultimately located in Florida in May of 1985. Appellant was returned to Philadelphia on June 14, 1985 where he was tried and convicted.

Appellant raises four issues for our review. Initially, he maintains that the case should have been dismissed because of a violation of Pa.R.Crim.P. 1100. This argument is grounded on the contention that the Commonwealth failed to present evidence to indicate when the appellant moved to Florida and since he could possibly have been located in Philadelphia, the “due diligence” test was not met.

We find no basis to support a finding that the court erred in failing to dismiss this case for a violation of Rule 1100. The Commonwealth had the burden of proving by a preponderance of the evidence that due diligence was employed in attempting to apprehend appellant. Commonwealth v. Kaminski, 349 Pa.Super. 78, 502 A.2d 1281 (1985); Commonwealth v. Branch, 337 Pa.Super. 22, 486 A.2d 460 (1984).

In determining whether the police acted with due diligence, a balancing process must be employed where the court, using a common sense approach, examines the activities of the police and balances this against the interest of the accused in receiving a fair trial. Branch, supra; Com monwealth v. Winn, 327 Pa.Super. 296, 475 A.2d 805 (1984).

The actions must be judged by what was done, not by what was not done. In addition, the efforts need only be reasonable and lack of due diligence should not be found simply because other options were available or in hindsight would have been more productive. Kaminski, supra; Commonwealth v. Faison, 324 Pa.Super. 406, 471 A.2d 902 (1984).

The testimony presented indicates that the police made various attempts to locate appellant in the Philadelphia area by visiting addresses they believed to be appellant’s residence, those of relatives, his girlfriend and a local pool hall. (N.T. 11/21/85, pp. 37-45). The F.B.I. was contacted to assist in apprehending appellant and they undertook activities in Boston, Puerto Rico and Florida in an attempt to locate appellant. (N.T. 11/21/85, pp. 111-116). Appellant’s name was entered into local and national crime computers and these were periodically checked; a wanted poster was also printed and distributed. (N.T. 11/22/85, pp. 150-152).

Viewing the actions of the police under the criteria set forth above, we find that the court acted properly in finding due diligence was demonstrated.

Next, appellant asserts that the in-court identification of appellant by three witnesses should have been suppressed because they had not seen him enough times prior to the incident to be able to positively identify him. He also claims the witnesses were incompetent to testify.

The issues raised here are not properly preserved for appeal because they were not raised in the court below. Appellant, in his motion to suppress, sought to show the identification was linked to an improper photo display. The court.ruled against this motion and found the witnesses had an independent basis for their identification. At no time did appellant set forth the issues he is presently attempting to raise and they must be considered waived. Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985); Com monwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983); Commonwealth v. Robinson, 494 Pa. 372, 431 A.2d 901 (1981).

The third issue before us is appellant’s claim that his statement made on June 14, 1985 should have been suppressed because he was not arraigned within six hours of arrest. The crux of this argument is that the detectives who went to Florida arrived in the afternoon of June 13, 1985 but did not take appellant into custody and return to Philadelphia until the afternoon of June 14, 1985. Appellant sets forth his argument as follows:

Because the Detectives could have gotten custody of appellant on June 13,1985, their failure to do so constituted unnecessary delay in bringing Appellant to arraignment and did not rise to a level that could have been considered an “exigent” circumstance.

Brief of Appellant at 16.

We find this claim to be totally without merit. The trial court, at the suppression hearing, ruled that appellant was not arrested until 2:30 p.m. on June 14, 1985, when he arrived at the Philadelphia Airport, and was arraigned at 6:57 p.m., thus the six-hour rule of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) was not violated. The lower court, in its Opinion, noted that even if the appellant was considered arrested when he was taken into custody by the Philadelphia police, the delay caused by travel to Philadelphia would justify extension of the six-hour rule under the exigent circumstances exception. (Slip Op., Savitt, J., 4/16/86, pp. 4-5). The so-called Davenport rule was intended to protect the suspect under arrest, from machinations which may occur from prolonged detention before charges are filed, to thereby elicit by undue pressure, admissions which will establish probable cause. It was not meant to place a stranglehold on the orderly and reasonable procedures required to bring about an effective arraignment, when exigent circumstances such as those present here, make it impossible to have an arraignment within six hours. We think the trial court was correct in determining that the travel time from Florida to Philadelphia must be excluded and thus there was no violation of the Davenport rule. See Commonwealth v. Feighery, 354 Pa.Super. 1, 510 A.2d 1248 (1986). The motion to suppress was, therefore, properly denied.

The final issue raised is that appellant was denied effective assistance of counsel based on a failure to request a pre-trial identification and the filing of a boilerplate post-verdict motion claiming the verdict was against the weight of the evidence.

In reviewing a claim of ineffectiveness of counsel, we must determine whether the underlying issue is of arguable merit. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). If the issue is found to be of arguable merit, we then proceed to determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate the client’s interest. Maroney, supra; Buehl, supra; Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984). In addition, appellant must establish that the ineffectiveness so prejudiced his case that he did not receive a fair trial. Commonwealth v. Verdekal, 351 Pa.Super. 412, 506 A.2d 415 (1986).

Appellant’s initial allegation of ineffectiveness is based on the contention that a pre-trial lineup could have shown that the witnesses could not identify the appellant as the assailant, particularly after almost four years had elapsed. Under the standards noted above, we do not find this claim adequate to support a finding of ineffectiveness of counsel. We think the rationale set forth by this Court in Commonwealth v. Moore, 321 Pa.Super. 1, 467 A.2d 862 (1983) is applicable to the present case. As the court stated in Moore:

[CJounsel had a reasonable basis for not requesting a pretrial lineup. First, there is no constitutional right to a lineup. Commonwealth v. Evans, 460 Pa. 313, 333 A.2d 743 (1975). More significantly, all three prosecution witnesses knew appellant from the neighborhood and had observed him during the robberies. They could have, therefore, easily identified him at any lineup, thereby strengthening the Commonwealth’s case. Accordingly, counsel might have been deemed ineffective had he requested a lineup.

Moore, supra, 321 Pa.Superior Ct. at 9, 467 A.2d at 866.

Here, all three of the witnesses knew defendant and recognized him as having been in their neighborhood before the murder and had ample opportunity to observe him during the crime from across the street. As in Moore, a lineup would have strengthened the Commonwealth’s case.

The second claim of ineffectiveness must also fail for even though counsel did file boilerplate post-trial motions, the lower court addressed the issue of whether the verdict was against the weight of the evidence and concluded it was not. Our independant review of the record compels the same conclusion. Appellant’s contention that the underlying issue was meritorious is unfounded and provides no basis for an ineffectiveness claim.

Having reviewed all of the issues raised by appellant and finding them to be without merit, judgment of sentence is affirmed.

Judgment of sentence affirmed.


text:
    524 A.2d 511
    COMMONWEALTH of Pennsylvania v. Mitchell SHABLIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1987.
    Filed April 13, 1987.

      Douglas M. Johnson, Assistant Public Defender, College-ville, for appellant.
    Mary M. Killinger, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before BECK, KELLY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for burglary, attempted rape and unlawful restraint. Appellant contends that his trial counsel was ineffective for failing to object when the trial court did not conduct a colloquy before accepting his waiver of a jury trial. Because we find that appellant’s claim has arguable merit, we vacate the judgment of sentence and remand the case for a hearing to determine whether appellant’s waiver was voluntarily entered.

Appellant was arrested and charged with the above crimes. He filed a pre-trial motion to suppress out-of-court and in-court identifications. After a hearing, the trial court denied the motion. The trial court, without the colloquy required by Pa.R.Crim.P. 1101, accepted appellant’s waiver of his right to a trial by jury. After a bench trial, appellant was convicted of all charges and sentenced to three-and-one-half-to-seven years incarceration for the attempted rape conviction and a consecutive term of one-to-two years incarceration for the burglary conviction. Sentence was suspended on the remaining conviction. This appeal followed.

Appellant contends that his trial counsel was ineffective for failing to object when the trial court accepted his waiver of his right to a jury trial without first conducting a colloquy as required by Pa.R.Crim.P. 1101. We agree.

When confronted with a claim of ineffective assistance of counsel, a reviewing court must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit, and, if so, it must determine whether the course chosen by counsel had some reasonable basis designed to serve the interests of the client.

Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). Further, to obtain relief, appellant must show that counsel’s ineffectiveness worked to his prejudice. Id. (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605 n. 8, 235 A.2d 349, 353 n. 8 (1967)). When a claim has arguable merit, and there has been no evidentiary hearing below to determine if there was a reasonable basis for counsel’s actions, then this Court will remand for an evidentiary hearing. Commonwealth v. Spotts, 341 Pa.Superior Ct. 31, 33, 491 A.2d 132, 134 (1985). If it is clear that the allegation of ineffectiveness of counsel lacks arguable merit, then an evidentiary hearing is unwarranted and the unfounded allegation will be rejected. Commonwealth v. Clemmons, 505 Pa. 356, 361, 479 A.2d 955, 957 (1984).

The right to trial by jury in non-petty criminal cases is a basic tenet of American jurisprudence. U.S. Const, amend. VI; Pa. Const, art. I, §§ 6, 9; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Commonwealth v. Reed, 488 Pa. 221, 412 A.2d 477 (1980). It is for the defendant, not trial counsel, to ultimately decide whether the right to trial by jury is to be waived in a given case. Commonwealth v. Williams, 310 Pa.Superior Ct. 501, 514, 456 A.2d 1047, 1059 (1983). The waiver of a basic and fundamental right must be knowing and voluntary. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Commonwealth v. Hines, 496 Pa. 555, 559, 437 A.2d 1180, 1182 (1981). Based upon this principle, our rules provide:

In all cases, the defendant may waive a jury trial with approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver and such colloquy shall appear on the record. The waiver shall be in writing, made a part of the record, signed by the defendant, the judge and the defendant’s attorney as a witness.

Pa.R.Crim.P. 1101. The colloquy conducted by the trial court must apprise the defendant of the following essential elements of a trial by jury: that the jury would be selected from members of the community, that the verdict must be unanimous, and that the defendant would be allowed to participate in the selection of the jury. Commonwealth v. Williams, 454 Pa. 368, 373, 312 A.2d 597, 600 (1973). In the past, Pennsylvania courts have held that both the failure to hold a colloquy, or an inadequate colloquy, required reversal and remand for a new trial. See, e.g., Commonwealth v. Morin, 477 Pa. 80, 88, 383 A.2d 832, 835 (1978). See also Commonwealth v. Tanur, 297 Pa.Superior Ct. 40, 443 A.2d 288 (1981). More recently, however, our Supreme Court has abandoned this per se rule in favor of a totality of the circumstances analysis which looks to, among other things, the extent to which counsel and client may have discussed the waiver. Commonwealth v. DeGeorge, 506 Pa. 445, 449, 485 A.2d 1089, 1091 (1984). We, therefore, are compelled to go beyond the lack of an on-the-record colloquy and examine the circumstances surrounding appellant’s waiver of his right to a jury trial in order to determine whether that waiver was voluntary. Id.

Here, the record reveals the following exchange relevant to appellant’s waiver of his right to trial by jury:

MS. ZAFFARAÑO (district attorney): Your Honor, I believe at tis (sic) time Mr. Gottlieb would like to proceed to a bench trial so I believe there would be a waiver of a jury trial signed by Mitchell Shablin and presented to the Court.
MR. GOTTLIEB (defense counsel): That’s correct, Your Honor. That’s what Mr. Shablin has previously indicated. THE COURT: All right, sir.
MS. ZAFFARANO: All right. Your Honor, I would now present up to the Court the waiver of the jury trial signed by defense counsel, defendant and myself____
THE COURT: The motion is allowed.

N.T. February 10,1986 at 50-51. In applying the totality of the circumstances test we note that the record does not contain a copy of the signed jury trial waiver form referred to in the above cited notes of testimony. This, combined with the absence of an on-the-record colloquy, prevents us from determining whether appellant entered a knowing and voluntary waiver of his right to a jury trial.

Accordingly, we must remand the case to the lower court for an evidentiary hearing to determine whether the waiver of trial by jury was voluntary. Commonwealth v. DeGeorge, supra, 506 Pa. at 450, 485 A.2d at 1093. If, on remand, the court finds that the waiver was voluntary, then appellant will have suffered no prejudice and therefore will not be entitled to a new trial on ineffectiveness grounds. Commonwealth v. Buehl, supra. However, if the court finds that the waiver was not voluntary, then appellant will be entitled to a new trial. See Commonwealth v. Easley, 341 Pa.Superior Ct. 381, 389, 491 A.2d 868, 872 (1985).

For the above-stated reasons, the judgment of sentence is vacated and the case is remanded for proceedings consistent with this opinion.

Vacated and remanded. Jurisdiction is not retained.

      . We note that as appellant is represented by new counsel on appeal, trial counsel’s ineffectiveness is properly raised. Commonwealth v. Holmes, 482 Pa. 97, 105 n. 3, 393 A.2d 397, 401 n. 3 (1978).

      . Appellant additionally contends that out-of-court and in-court identifications should have been suppressed and that the evidence was insufficient to support the verdict. We hold that the trial court properly and correctly disposed of these issues. Appellant also contends that his sentence was excessive. Because of our disposition of appellant’s ineffectiveness claim, we need not reach this contention.


author: WIEAND, Judge:

text:
    524 A.2d 514
    In the Interest of S.N.W. D.O.B. 1-24-71. Appeal of J.M.W.-C.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1987.
    Filed April 16, 1987.

      Michael J. Bresnahan, State College, for appellant.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

In these dependency proceedings brought pursuant to the Juvenile Act, the trial court denied a mother’s request for the appointment of counsel and required the hearing to proceed without determining whether the mother was indigent and without continuing the hearing to permit her to obtain counsel. After the child had been determined to be dependent and custody had been awarded to the Centre County Children and Youth Services (C.Y.S.), the mother appealed. She contends that the trial court erred when it required her to proceed without counsel. We agree. Therefore, we reverse and remand for further proceedings.

On May 2, 1986, C.Y.S. petitioned the trial court under the Juvenile Act to hold that S.N.W., a juvenile, was dependent. The child had been born to J.M.W-C. on January 24,1971 and, according to the averments of the petition, had been sexually abused by J.M.W-C. and her husband, the child’s stepfather. A hearing on the petition was set for May 5, 1986. On that day, J.M.W-C. appeared without counsel. At the conclusion of the hearing, the court directed that a dispositional hearing be held within ten days and continued custody of S.N.W. in C.Y.S.

J.M.W-C. thereafter filed with the Court Administrator a petition to proceed in forma pauperis, which the Court Administrator denied on May 9, 1986. On May 12, 1986, J.M.W-C. filed with the court a motion for the appointment of counsel. Prior to the start of the dispositional hearing on May 13, the trial court questioned J.M.W-C. regarding her financial resources and learned that she was unemployed and using money borrowed from her parents to pay living expenses. Her husband, who was on bail to answer charges of child abuse, was about to begin a new job. J.M.W-C. also said that she had been unable to find legal counsel and that she had been advised by Keystone Legal Services to file a petition requesting the court to appoint counsel for her. The trial court, without making any findings regarding indigency, denied appellant’s request for counsel and required that the hearing proceed. Appellant was present during the hearing but did not participate therein. The court heard evidence that the child had been sexually abused and was without parental care. Based thereon, the court found that the child was dependent and directed that custody remain with C.Y.S.

Section 6337 of the Juvenile Act provides, in pertinent part, as follows:

Except as otherwise provided under this chapter a party is entitled to representation by legal counsel at all stages of any proceedings under this chapter and if he is without financial resources or otherwise unable to employ counsel, to have the court provide counsel for him. If a party appears without counsel the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court if applicable. The court may continue the proceedings to enable a party to obtain counsel.

42 Pa.C.S. § 6337 (emphasis added). This statute makes it eminently clear that appellant was entitled to be represented by counsel at the hearing and to have counsel appointed if she were indigent. The trial court in this case declined to follow the statutory requirement because it believed that the ten day hearing requirement imposed by Section 6335 was mandatory and compelled an immediate hearing. In order to comply with this mandate, the court determined, it could not appoint counsel for the child's mother or continue the hearing so that she could obtain counsel.

This interpretation of the statute by the court was erroneous. It was in direct violation of 42 Pa.C.S. § 6337 which established the right to counsel and authorized a court to continue the proceedings to enable a party to obtain counsel. The ten day hearing requirement was not intended by the legislature as a means for depriving a parent of the right to be represented by counsel. The purpose of the ten day hearing requirement was to prevent the continued detention of a child without a hearing to determine whether the allegations in the petition were true. See: In re Kerr, 333 Pa.Super. 67, 71, 481 A.2d 1225, 1227 (1984); In re DelSignore, 249 Pa.Super. 149, 158, 375 A.2d 803, 807 (1977).

It is not the tardiness of the hearing, as such, which is the target of the statute. Rather, it is the prolonged prehearing confinement. Remedies for violations must thus be aimed at ending the confinement, not at other aspects of the case.
The statute itself confirms this view. It specifically provides that the consequence of a hearing not being held is that the juvenile will be released. The statute does not go on to provide for the court’s loss of jurisdiction should the child not be released. Nor does it logically follow that the court must lose jurisdiction for such a violation— for other means of immediate redress exist which can act to fulfill the purpose of the statutory provision.
First, the juvenile held beyond the ten day period without a hearing can petition the Court of Common Pleas for his immediate release.

In re Kerr, supra 333 Pa.Super. at 71, 481 A.2d at 1227 (footnote omitted).

Although there can be no doubt that pre-hearing delays are to be avoided, we conclude that the ten day hearing requirement was not intended to override the right of a child’s parent to be represented by counsel in dependency proceedings. Cf. In re Anita H., 351 Pa.Super. 342, 505 A.2d 1014 (1986) (where C.Y.S. had filed petition alleging that children were dependent based upon mother’s failure and inability to care for them properly and where natural father of each child appeared at hearing in effort to obtain custody of children, proper course was to continue hearing so that home studies could be done to determine whether children could be placed with their respective fathers).

The trial court in the instant case erred when it failed to determine whether the appellant-mother was indigent. Upon remand, the court may, if it deems it necessary, receive additional testimony to assist it in making such a determination. If it is determined that J.M.W-C. is indigent, counsel should be appointed to represent her. If it is determined that she is not indigent, she must be given a reasonable opportunity to employ counsel herself. In either event, a new hearing is necessary.

Reversed and remanded for further proceedings consistent with the foregoing opinion.

      . 42 Pa.C.S. § 6301 et seq.

      . The requirement of 42 Pa.C.S. § 6335(a) is as follows:

        (a) General rule. — After the petition has been filed the court shall fix a time for hearing thereon, which, if the child is in detention or shelter care shall not be later than ten days after the filing of the petition. If the hearing is not held within such time, the child shall be immediately released from detention or shelter care.

      . In this case, in fact, S.N.W.'s counsel had expressed a willingness to have S.N.W. remain in the custody of C.Y.S. and would not likely have sought the child’s release in the event the hearing had been continued in order that the appellant-mother might obtain counsel.

      . Appellant has also argued that her right to counsel is guaranteed by federal and state constitutions. Because we conclude that appellant’s right to counsel has been provided by the Juvenile Act in Pennsylvania, we do not decide the constitutional issues which appellant has argued.