author: POPOVICH, Judge: BROSKY, Judge,

text:
    548 A.2d 284
    COMMONWEALTH of Pennsylvania, Appellee, v. Derrick SIMMONS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1985.
    Filed Sept. 30, 1988.

      Jeffrey M. Voluck, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY and POPOVICH, JJ.
   POPOVICH, Judge:

This case is on remand to the Superior Court for consideration of the remaining issues raised on appeal, but not addressed by a panel of this Court because of its award of a new trial to the appellant (Derrick Simmons) which was subsequently vacated by the Pennsylvania Supreme Court.

It was the initial position of the panel Majority (written by the now deceased Justice Roberts, joined by Brosky, J., but over the dissenting opinion by Popovich, J), that the closing argument of the prosecution, telling the jury:

... if you acquit (these defendants) go never to come back ..., never to have to answer again, (but) ... if you convict ... there are appeals and there may be reversals____[]

improperly urged upon the jury a bias in favor of conviction. This was held by the Majority of the panel to have denied the appellant (as well as his codefendant Nathaniel Wests) a fair trial. To remedy the matter, the judgment of sentence was vacated and a new trial was awarded (to the appellant and his codefendant).

After appeal, the Pennsylvania Supreme Court entered a terse per curiam order reading:

The Orders of the Superior Court are vacated and the matters are remanded to the Superior Court for consideration of the remaining issues raised on appeal. See, e.g., Commonwealth v. Baker, 511 Pa. 1, 511 A.2d 777 (1986).

Commonwealth v. West & Simmons, 518 Pa. 120, 541 A.2d 739 (1988).

Preceding our inquiry into the issues raised by the appellant, we deem it proper to set forth a factual accounting of the events leading to the case at bar.

Viewing the facts in a light most favorable to the verdict winner, the Commonwealth here, and giving it all reasonable inferences to be derived therefrom, reveal that on the night of November 9, 1979, Michelle Williams answered her door and admitted Aliene Freeman to her house. As she did so, Michelle could see three or four men stabbing William Grant Johnson in his back as he crouched on the ground. Although it was late at night, the scene was illuminated by a street light and Michelle Williams recognized two of the attackers as the appellant and one Nathaniel West, both of whom she had known for several years. Ms. Williams called to her mother, who was inside the house, saying that the appellant and West had stabbed Johnson. The mother called the police and Johnson was taken into the Williams’ home. Johnson was transported to the hospital by the police and pronounced dead within minutes of his arrival.

Ms. Williams, who was fourteen at the time, did not make a statement to the police because her mother had instructed her not to give them any information. However, the case was kept open by the police and several years later, as part of the continuing investigation, Ms. Williams did tell police what she had witnessed, and she later testified to these facts at the appellant’s trial.

The complained-of closing argument by the prosecution was objected to at its completion, but, at the time of its making, the court cautioned the prosecutor, in the presence of the jury: “Excuse me, Mr. McGill (the prosecutor). I really do think that you ought to add that the implications of a verdict should play no role in their (jury) reaching a verdict.” Further, to the objections of the appellant and his codefendant to the remarks made, the trial court felt its interruption cured whatever prejudice the remarks may have caused. As stated previously, the Supreme Court ultimately agreed that the appellant and his codefendant were not entitled to a new trial because of the alleged prejudicial closing remarks.

In compliance with the remand order of the Supreme Court, we observe that, save for the “closing argument” allegation raised in Point VIII of the appellant’s brief and already found wanting by the high Court, there are twelve (12) issues raised for our consideration.

To commence with, the appellant argues that the convictions for murder of the first degree, possessing an instrument of crime, and criminal conspiracy were based on insufficient evidence, were against the weight thereof and were contrary to law, and that he was entitled to a directed verdict. We disagree.

As to the conviction for murder of the first degree, the appellant does not contend that the Commonwealth failed to prove any element of the crime beyond a reasonable doubt, but, rather, bases his argument that Ms. Williams’ testimony concerning her identification of the appellant and her account of the crime were “fraught with inconsistencies” and “not worthy of belief.” We have made an independent review of the entire record and cannot state Ms. Williams’ testimony is either so unreliable or contradictory as to make the verdict a result of conjecture or surmise rather than reason. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976). Ms. Williams was clear in her identification of the appellant. She never altered her testimony that she saw a knife in the appellant’s hand and saw him stab the victim.

We likewise disregard the appellant’s contention that the verdicts for all three convictions were against the weight of the evidence. In reviewing the weight of the evidence, we must look to all the evidence, and when one considers the evidence in its entirety, it cannot be said the resultant verdicts were so against the weight of the evidence as to shock one’s sense of justice. Commonwealth v. Gonce, 320 Pa.Super. 19, 466 A.2d 1039 (1983).

Appellant also contends the conviction for criminal conspiracy must be reversed because the Commonwealth failed to prove any agreement to commit a crime. The existence of a common agreement may, of course, be inferred from the evidence of the circumstances surrounding the conspiratorial activities. Commonwealth v. Gordon, 329 Pa.Super. 52, 477 A.2d 1342 (1984). While mere presence at the scene of the crime is insufficient to establish conspiracy, if the accused is not only present at the scene, but is also identified as one of the perpetrators of the crime, the finder of fact may conclude a criminal agreement existed. Commonwealth v. Johnson, 265 Pa.Super. 418, 402 A.2d 507 (1979). Certainly, the eyewitness’ testimony placing the appellant, along with Nathaniel West and one or two other unidentified assailants, at the scene, as well as this same testimony establishing the appellant’s participation by stabbing the victim with a knife, is sufficient to support an inference beyond a reasonable doubt that the appellant had entered into a common agreement.

Appellant raises for the first time before this court the specious argument that his conviction for possessing an instrument of crime is invalid because the Commonwealth failed to prove the knife was concealed. It is axiomatic that issues will not be considered for the first time on appeal and the argument is, therefore, waived. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

Appellant claims he has been denied a fair trial because the Commonwealth failed to inform defense counsel of the existence of a favorable witness. The witness in question was one Aliene Freeman, who was interviewed by the prosecution prior to the trial. Ms. Freeman was also a friend of the appellant’s family, and, in fact, was a defense witness at the time of the trial. Appellant contends the prosecution must be “penalized for its affirmative dereliction of duty to provide the defense with the name of the witness.” (Brief for Appellant at p. 15) We disagree. We need not even consider whether this witness was within the control or possession of the prosecution because the appellant has not shown the requisite harm to his defense. Commonwealth v. Bonacurso, 500 Pa. 247, 455 A.2d 1175 (1988). The witness testified for the defense and it was on cross-examination that the witness revealed she had at one time been interviewed by the prosecution. Appellant contends the witness was not discovered until trial, and, therefore, her testimony may have been “stronger” if counsel had adequately prepared her. However, the appellant did not request a continuance so that he could have this preparation time. Pa.R.Crim.P. 805(E). We find no error in the trial judge’s refusal to grant a mistrial.

The next issue raised by the appellant concerns the trial court’s refusal to allow the jury to view the address on the medical examiner’s report indicating the location of the crime. At trial, the appellant and the Commonwealth stipulated to a summary of the report. The cover of the report contained a form which included the place of injury. Appellant wanted this information available to the jury because this form listed the location as the 600 block of Dudley Street, which was not the address of the Williams’ home. The Commonwealth objected, noting the preparer of the report had no independent knowledge of the location of crime but had relied on information supplied to the medical examiner. We find the trial court properly excluded the evidence as hearsay.

Appellant also alleges the trial court erred in not declaring a mistrial due to prosecutorial misconduct. We have examined the prosecutor’s remarks made during the cross-examination of a defense witness and find the trial judge immediately issued cautionary instructions to the jury. We cannot find the unavoidable effect of the remarks prejudiced the jurors so as to form in their minds a bias and hostility causing them to be unable to weigh the evidence objectively and render a true verdict. Commonwealth v. McNeal, 456 Pa. 394, 319 A.2d 669 (1974).

Appellant next raises two issues concerning the scope of redirect examination of one witness and the admission of rebuttal evidence. Both areas are subject to the discretion of the trial judge, and we can find no abuse of that discretion.

We also find no error in the trial court’s failure to include two of the appellant’s requested points in charging the jury. The court did charge the jury on voluntary manslaughter and, of course, the trial judge is not required to use words provided by appellant. Commonwealth v. Brown, 273 Pa.Super. 468, 417 A.2d 743 (1979). The judge was also correct in not issuing a missing witness charge since there were no missing witnesses. Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983).

Similarly, we find no error in the trial court’s dismissal of a prospective juror. Appellant’s argument that his right to an impartial jury was violated because an identifiable segment of the community was stricken from the jury is without merit. The trial judge dismissed a prospective juror who stated she could not be fair and impartial because she philosophically opposed the death penalty. The death qualification procedure has been approved by our Supreme Court. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985).

The last issue raised by the appellant concerns the recording of the verdict. Appellant states this was error because one juror showed the verdict was contrary to her belief by her “demeanor.” The record indicates this juror did state her agreement with the guilty verdict when she was individually polled. Moreover, the appellant did not object at the time of the entry nor in any way call the juror’s “demeanor” to the attention of the trial judge. We, therefore, refuse to grant the appellant a new trial on this basis.

Finally, we note the appellant has been convicted and sentenced for two inchoate crimes — conspiracy and possessing an instrument of crime. Under Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176 (1982), this constitutes an error of law and judgment of one of the crimes must be arrested. See also 18 Pa.C.S.A. § 903 and Commonwealth v. Tingle, 275 Pa.Super. 489, 419 A.2d 6 (1980).

Although this issue is not raised by the appellant, the illegality of sentence is not waivable and may be considered sua sponte. Commonwealth v. Thomas, 291 Pa. Super. 263, 435 A.2d 901 (1981). We, therefore, will amend the sentence by vacating the judgment of sentence of two-four years imprisonment which was imposed for possessing an instrument of crime. Commonwealth v. Eberts, 282 Pa.Super. 354, 422 A.2d 1154 (1980) and 42 Pa.C.S.A. § 706.

Judgment of sentence for possession of an instrument of crime vacated. Judgments of sentence for murder of the first degree and conspiracy affirmed.

BROSKY, J. files a Concurring Statement.

BROSKY, Judge,

concurring:

I am in agreement with the majority’s disposition of this case. I write separately, however, with regard to the Supreme Court’s remand of this case. As pointed out by the majority, the case was remanded following a finding by the Pennsylvania Supreme Court that remarks made during the prosecutor’s closing argument did not deprive appellant and his co-defendant of a fair trial.

I only wish to note that, while I am bound by the decision of this Commonwealth’s highest court, I remain of the opinion that comments such as those made by the prosecutor during his closing argument are to be neither condoned nor encouraged, even though they may fail to rise to such a level as to require a new trial.

      . President Judge Cirillo is sitting by designation in place of the now deceased original panel member, Justice Roberts.

      . See Commonwealth v. Simmons, 518 Pa. 120, 541 A.2d 739 (1988).

      . The appellant and his codefendant (Nathaniel West) were tried jointly and each was awarded a new trial because of the remarks of the prosecutor subsequently held not to be improper by the Pennsylvania Supreme Court in Commonwealth v. West & Simmons, 518 Pa. 120, 541 A.2d 739 (1988).

      . An appreciation of what transpired below requires a reproduction of the entire closing argument of the assistant district attorney; to-wit:
      Lastly, I will ask for the courage of all of you to reach a verdict which is consistent with the evidence. I am not permitted to ask you to reach or tell you what I believe in terms of certain evidence, who I believe and why I believe them because what I say really is not important at all. I am also prohibited from doing that, properly so, by the Supreme Court of our Commonwealth because you, these 12 people here are the people that will determine the facts.
      Now, I mentioned power. What do I mean by that? Well, power is the fact that you as jurors in this case will actually make this system in this City work. You make it work. You know, some of us feel and many times you have heard that the greatest privilege or power that we have is to vote. Well, that is very true for many, many different reasons, but some of us at times think that in the Presidential election, there are so many millions of votes or in the Governor’s election or Mayor and going down, of course, from millions of votes to hundreds of thousands that sometimes, maybe our vote doesn't count. Well, that is not true. Our vote counts very much. And because of our ability to vote, we can, in fact, see eventually things occurring through people or through legislation.
      Well, your power is something else. The power of being a juror and the power of actually taking part in the criminal justice system of which you are definitely a part at this point, is very significant, indeed, because what do I mean? I simply mean that the 12 of you, when you reach a decision, no matter what it is, it is to a certain extent final and it is to a certain extent immediate. You will not have to wait to see if that bill you wanted to be passed or whether the President will abide by what he said in his campaign. Your decision will be final to a certain extent and immediate.
      I say, final to a certain extent because if you acquit both these gentlemen, they go never to come back, never to see this charge and never to have to answer again. That is final. If you convict them of first degree murder or a lesser degree depending upon your own view and based on the evidence, of course, there are appeals and there may be reversals later on because of evidentiary problems, but at least there is to an extent a finality to that also.
      So that is why I say to all of you, the responsibility that Judge Riehette very early in her comments to all of you means so much.
      THE COURT: Excuse me, Mr. McGill. I really do think that you ought to add that the implications of a verdict should play no role in their reaching a verdict.
      [Prosecutor]: Oh, yes, very definitely. Thank you, Judge.
      THE COURT: I think that should be the final thing to what you just said.
      [Prosecutor]: The implications, all of that is not to take any part in your verdiet but understand that your verdict is indeed an immediate action. You are powerful, so please take that responsibility very seriously, as I am sure all of you have by the attention that you have been paying to all the people.

      . We have similarly had the companion case of Commonwealth v. West (J. 82001/85) remanded by the Pennsylvania Supreme Court to us. Our resolution is identical in both eases.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    548 A.2d 290
    Paul L. JAWORK v. Patricia A. JAWORK Abrahams & Loewenstein, Appellants.
    Superior Court of Pennsylvania.
    Submitted Aug. 15, 1988.
    Filed Sept. 16, 1988.

      Paul J. Downey, Philadelphia, for appellants.

      Before CIRILLO, President Judge, and WATKINS and CERCONE, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying appellant Patricia Jawork’s (now Patricia Eisele) petition for special relief in connection with the divorce action between her and her husband, Paul Jawork. We reverse.

In December of 1981, the trial court entered a decree of divorce, reserving jurisdiction “to dispose of ancillary matters properly raised by the parties heretofore.” Among these matters was Mrs. Jawork’s claim for equitable distribution. At the time of the entry of this decree the parties owned real estate on Rising Sun Avenue which was held by the entireties. Pursuant to a settlement later negotiated between the parties, Mr. Jawork agreed to transfer his interest in the property to Mrs. Eisele. On July 23, 1986, the trial court entered an order awarding the marital residence to Mrs. Eisele in full and final settlement of all economic claims presented by her in the divorce action and marking the matter “settled, discontinued and ended.”

The problem which was the subject of Mrs. Eisele’s August 4, 1986 petition for special relief arose at the June 27, 1986 settlement of the sale of the Rising Sun property by her to a third party. The title report revealed that a lien in favor of her ex-husband's attorneys had been filed against the title in October of 1985. Upon Mrs. Eisele’s protest, the amount of the lien was escrowed. Mrs. Eisele then petitioned the court, pursuant to section 403(d) of the Divorce Code, to have the lien declared null and void. The trial court refused to do so and this appeal followed.

Appellant urges us to find that, where economic claims involving marital property held by the entireties are bifurcated from the entry of the decree, the effect of 68 P.S. § 501 is somehow stayed pending resolution of those claims and the relinquishment of jurisdiction over the marital property, thus making the denial of her petition improper. As both parties to this appeal concede, by operation of law, a tenancy by the entireties becomes a tenancy in common upon the divorce of the parties. 68 P.S. § 501. Further, bifurcation of a divorce action is permitted pursuant to Pa.R.C.P. 1920.52(c) which allows the court to separate the granting of the divorce from resolution of the economic claims. 23 P.S. 401(b); Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985). Thus, the status of the title after the entry of the decree is unassailable, as is the court’s power to bifurcate a divorce action. It is the interaction between the two that appellant questions.

The attorney/creditor, who filed an amicus brief in this matter, suggests that the Divorce Code did not repeal by implication the Act of 1949, as amended, found at 68 P.S. § 501. We see no issue of repeal by implication as the two statutes in question do not deal with the same subject matter, Kelly v. City of Philadelphia, 382 Pa. 459, 115 A.2d 238 (1955). Even if this hurdle could be overcome, there is no “irreconcilable conflict” between the two. Kelly, supra, 382 Pa. at 472, 115 A.2d at 244. The Act of 1949, as amended, is codified at 68 P.S. § 501-504 and governs only the status of the title between divorcing parties; the Divorce Code provides jurisdiction to, inter alia, equitably divide marital property. 23 P.S. § 301(a)(1). The change in legal status of the title does not affect the power of the court to determine the parties’ respective rights in the property pursuant to the Divorce Code, nor does the change in ownership status alter its classification as marital. Property does not lose its marital character merely because the entry of a divorce decree in a bifurcated action has, pursuant to 68 P.S. § 501, operated to change the way in which it is held. See 23 P.S. § 401(f); Marinello v. Marinello, 354 Pa.Super. 471, 512 A.2d 635 (1986) (absent action for partition, separate estates are not created and property is not classified as non-marital pursuant to 23 P.S. § 401(e)(2)).

Mr. Jawork became a tenant in common, seized of an undivided one-half interest in the property, on the date the divorce decree was entered. His attorney’s October 1985 judgment attached to his interest as a tenant in common. Sometime in the few months following the attachment of this lien, Mr. Jawork agreed that his ex-wife should have the house. The title report prepared in March of 1986 in anticipation of her sale of the property to a third party showed the lien. It also indicated that a deed from Mr. & Mrs. Jawork to Mrs. Eisele was not yet of record. Mrs. Eisele disputed the lien’s validity against what she maintained was her one hundred per-cent interest in the property and the amount of the lien was escrowed at settlement. Mrs. Eisele then petitioned to have the lien declared null and void.

Having established that the petition was properly before the court and that the parties held the subject property as tenants in common as of December 17, 1981, we must now determine whether the trial court abused its discretion in denying the petition for special relief. The granting of appropriate special relief under Pa.R.C.P. 1920.-43 is within the sound discretion of the trial court and is an exercise of its equitable powers. Unless there is an abuse of this discretion, we will not disturb its decision. Hankin v. Hankin, 279 Pa.Super. 179, 420 A.2d 1090 (1980), rev’d on other grounds, 302 Pa.Super. 295, 448 A.2d 1049 (1981).

In denying the requested relief the trial court did not find that section 403 was inapplicable, but instead relied on the fact that:

[a]t the time of this settlement [June 1986], petitioner still had available to her the safeguards of the Code and the relevant procedural rules which would have required her ex-husband to file an Inventory and Appraisement, disclosing the lien against the property. Furthermore, even if petitioner had no knowledge of the lien until the third party settlement, she still took no action against [Mr. Jawork] under what was then the still-pending disposition of her property rights under the divorce action.

The court went on to conclude:

Given petitioner’s failure to take appropriate action before [the] July 23rd order (which, in effect could even be seen as petitioner’s tacit agreement to assume satisfaction of the lien), this Court sees no reason why it should now extend itself to grant her the unusual relief she seeks. The proper method to escape from paying the lien would have been to request an inventory and appraisement after the third party settlement as well as a delay of the entry of the July 23rd order, or to have immediately filed a Petition for Special Relief under § 403(d) against defendand [sic] alleging fraud.

We disagree with the trial court’s decision. While it may have been more desirable for Mrs. Eisele to have brought the problem to the attention of the court immediately after settlement, we do not agree that her failure to do so should be fatal to a determination of the issue she raised in her petition. There is no fixed and firm procedure for requesting the relief she sought, nor is there a definite time period prescribed during which she had to assert the rights she claimed or be deemed to have waived them. To decline to address her substantive claim merely because the court would have preferred alternative procedural handling constitutes an abuse of discretion, especially where no prejudice has been claimed or shown.

In her petition for special relief Mrs. Eisele averred that her ex-husband had long been uncooperative in addressing or resolving the remaining claims in the divorce action. We do not know whether the agreement they reached whereby she was to receive the house was written or oral, but it is fair to infer that when she made it she was unaware of the lien but that Mr. Jawork knew it had been entered. She is certainly chargeable with notice of the lien at least as soon as the date of the title report. However, it may well have been futile for her to insist on a resolution of the lien prior to settlement. In fact, to do so may have cost her the sale, if Mr. Jawork refused to cooperate.

It is also conceivable that Mrs. Eisele believed, perhaps not incorrectly, that she had no firm recourse concerning her right to the entire interest (unencumbered, of course) in the house for which she had bargained until the court entered its order confirming that distribution. She had no way of knowing when that would be and, from her point of view, she was protected in the meantime because the disputed amount was in escrow. When the equitable distribution order was entered in late July 1986, her petition was filed almost immediately thereafter. She did not sit on her rights.

We find it to be an abuse of discretion for the trial court to have focused entirely upon its view of the correct timing and procedure that should have been followed to the exclusion of the merits of Mrs. Eisele’s position. The Divorce Code has as one of its purposes to “effectuate economic justice between [the] parties ... and insure a fair and just determination and settlement of their property rights,” 23 P.S. § 102(a)(6). To have ruled as the trial court did for the reasons it cites is contrary to the legislature’s clearly expressed intent.

For the foregoing reasons, we reverse and remand for a determination on the merits. The trial court should take into consideration, inter alia, the spirit of the parties’ agreement, any concealment of the lien on Mr. Jawork’s part during the negotiation of the agreement, and the purposes of our Divorce Code in deciding whether or not it is equitable and proper under section 403(d) to charge Mr. Jawork with the ultimate responsibility for the encumbrance and to require that he satisfy the lien. Jurisdiction is relinquished.

      . In contrast to the situation in O’Brien v. O’Brien, 359 Pa.Super. 594, 519 A.2d 511 (1987), the order in this case is final and appealable as it was not rendered during the pendency of the divorce action.

      . This section of the Divorce Code reads:
      Any encumbrance or disposition of property to third persons who had notice of the pendency of the matrimonial action or who paid wholly inadequate consideration for such property may be deemed fraudulent and declared null and void.
      Mrs. Eisele’s petition for special relief argued that the attorney/creditor responsible for the encumbrance, having represented her ex-husband in the divorce action, clearly had the required “notice of the pendency of the action.” This argument, however, is not raised on appeal.

      . This section provides:
      Whenever any husband and wife, hereafter acquiring property as tenants by entireties, shall be divorced, they shall thereafter hold such property as tenants in common of equal one-half shares in value and either of them may bring suit against the other to have the property sold and the proceeds divided between them.

      . Although not cited by appellant, the only section of the Divorce Code which might arguably support such a result is found at 23 P.S. § 401(j) which states in pertinent part:
      Whenever a decree or judgment is granted which nullifies or absolutely terminates the bonds of matrimony, any and all property rights which are dependent upon such marital relation, save those which are vested rights, are terminated unless the court otherwise expressly provides in its decree ...
      This case does not squarely present the issue of whether, by expressly reserving the entireties status of marital property until the resolution of the economic claims in a bifurcated divorce, the operation of 68 P.S. § 501 is forestalled. The trial court’s entry of the divorce decree here did not so specify and we, therefore, cannot address this issue.

      . Rule 1920.52(c) reads:
      The court need not determine all claims at one time but may enter a decree adjudicating a specific claim or claims.

      . The attorney/creditor also argues that Mrs. Eisele’s petition was untimely since the court had relinquished jurisdiction over the matter prior to her filing of the petition. The trial court alluded to Mrs. Eisele’s timing also, but its reasoning is based on waiver. Nevertheless, petitions for special relief are not limited to the period when an action is pending. The rule itself (Pa.R.C.P. 1920.43) begins ”[a]t any time after the filing of the complaint ..." (emphasis ours). It is easily conceivable that, after the final disposition of all matters in the divorce action, a party may need the assistance of the court in enforcing some portion of its order. See 23 P.S. § 401(b) ("Any decree ... shall include ... an order ... determining and disposing of ... any other related matter including the enforcement of separation agreements voluntarily entered into between the parties”) and 23 P.S. § 401(c) ("In all matrimonial causes, the court shall have full equity power and jurisdiction ... and may issue ... orders which are necessary to protect the interests of the parties ... and may grant such other relief or remedy as equity and justice require against either party ...’’) The terms and substance of the July 23, 1986 trial court order disposing of the economic claims were drawn from the agreement reached between the parties. Any further matter having to do with the Rising Sun Avenue property and its transfer between the parties pursuant to the divorce and the court’s order was properly brought to the court’s attention via a petition for special relief. We agree with the trial court which stated:
      Since this matter was generated directly as a result of the divorce between [the parties] ... and since the placing of the disputed funds in escrow actually occurred before [the July 23, 1986] order disposing of the property rights between the parties, the issues involved are a direct outgrowth of the Family Court action and, in the interest of judicial economy, can be most expeditiously handled by this Court.
      The jurisdiction of the trial court to address the instant petition is beyond question. 23 P.S. § 301(a)(5).

      . There is no clear evidence of record as to when the parties reached their settlement agreement whereby Mrs. Eisele was to receive the marital residence in exchange for a release of all other economic claims. Mrs. Eisele’s petition avers that the settlement was reached in or after February of 1986. The trial court speculates:
      Prior to that time [the March 1986 title report issued in connection with the proposed sale from Mrs. Eisele to a third party and which showed the lien], it seems that [Mr.] Jawork transferred his interest in the marital property to petitioner [Mrs. Eisele], presumably before the entry of the judgment in 1985. (emphasis added)
      Regardless of when this transfer took place, the underlying issue remains the same since there is no dispute that the parties held the property by the entireties at the time the divorce decree was entered, nor that the lien attached subsequent to the entry of the decree.


author: MONTEMURO, Judge:

text:
    548 A.2d 294
    Denise M. SCHULTZ, Appellee, v. Martin P. CONNELLY, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 30, 1988.
    Filed Oct. 4, 1988.

      Nicholas J. Caniglia, Wayne, for appellant.
    Robyn E. Schwartz, Assistant District Attorney, Philadelphia, for appellee.

      Before CAVANAUGH, BROSKY and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellant Martin P. Connelly challenges a December 16, 1987 Order of the Philadelphia County Court of Common Pleas that denied his petition to vacate a support order for James Connelly, who was born to appellee Denise Schultz on January 5, 1980. We affirm.

The relevant facts of this case, as found by the trial court and amply supported by the record, are as follows:

[T]he parties started living together in 1971. The parties decided to have a child, but they discovered that the [appellant] was sterile. The parties agreed that [appellee] should begin having sexual relations with their third floor tenant, James Jackson.
As a result of this relationship, the child James was born on January 5, 1980. [Appellant] held himself out as the child’s father and supported the child and [appellee] until the parties separated in the latter part of 1980.
On November 10, 1980, the parties agreed to the entry of a support order for the child before a Domestic Relations Officer.[]

Trial Court Opinion at 1-2. Appellant complied with the support order until 1985. On April 17, 1986, appellant filed a petition to vacate support. He alleged that (1) he was not the father of James Connelly; (2) the parties had agreed to terminate the support when the child reached the age of six; (3) he was not aware of the consequences of agreeing to the 1980 support order; and (4) he agreed to the support order under duress and through fraud perpetrated by appellee. The trial court denied appellant’s petition to vacate, and this appeal followed.

Appellant raises the following three questions for our review:

1. Is appellant equitably estopped from denying paternity?

2. Does the doctrine of res judicata bar the court from vacating the child support order?

3. Is there a change in appellant’s circumstances that warrants vacating the child support order?

We affirm.

Because of our disposition of the second question presented, we need not address the first question and determine whether appellant is equitably estopped from denying paternity. We therefore turn to the second question and find that appellant is collaterally estopped from denying paternity. Appellant argues that the 1980 child support order should not now bar him from raising the issue of paternity. He argues that the order cannot be given effect because the order (1) was the result of collusion between him and appellee in representing to the Domestic Relations Officer that he was the father of the child; (2) was a product of fraud perpetrated by appellee upon appellant because appellee threatened to kill the child if appellant did not agree to the order and because both parties orally agreed that the order would have effect only for six years; (3) was consented to by him without benefit of counsel so that he was unaware of the consequences of his actions; and (4) was entered into without adequate opportunity afforded to him to litigate the issue of paternity. We find no merit in any of these arguments.

Because appellant did not appeal directly from the support order entered in 1980 and there raise the issue of paternity, he is now collaterally estopped from denying paternity.

“ ‘[A] plea of collateral estoppel is valid if, 1) the issue decided in the prior adjudication was identical with the one presented in the later action, 2) there was a final judgment on the merits, 3) the party against whom the plea is asserted was a party ... to the prior adjudication, and 4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in ... question in a prior action.’ ”

Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 237, 464 A.2d 1313, 1319 (1983) (quoting In re Estate of R.L.L., 487 Pa. 223, 228 n. 8, 409 A.2d 321, 323 n. 8 (1979), quoting Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975)). All elements needed for the application of the doctrine of collateral estoppel are present in the instant case.

First, in Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353 (1986), we stated that the entry of a support order “necessarily determines the issue of paternity.” Id., 350 Pa.Superior Ct. at 278, 504 A.2d at 355. If no direct appeal is taken from the order, the paternity determination cannot be challenged and is established as a matter of law. Id. See also Commonwealth ex rel. Nedzwecky v. Nedzwecky, 203 Pa.Super. 179, 181-82, 199 A.2d 490, 491 (1964) (implicit in the entry of a child support order is a finding of paternity). Accord Armstead v. Dandridge, 257 Pa.Super. 415, 390 A.2d 1305 (1978); Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 384 A.2d 1285 (1978). The issue of paternity that is now being challenged is identical to the one that was decided at the time of the 1980 order. Second, even though support orders are modifiable due to a change in circumstances, the determination of paternity is a final decision of that issue on the merits. Third, appellant was a party to the prior support order so the doctrine of collateral estoppel may be asserted against him.

Finally, despite appellant’s protestations to the contrary, he had a full and fair opportunity to litigate the issue of paternity at the time the support order was entered in 1980. We will not disturb a prior, final determination of an issue merely because a party does not take full advantage of an opportunity to litigate. Appellant argues that he was denied a full and fair opportunity to litigate because, although he entered into the order voluntarily, his consent was vitiated by the fact that he was uncounseled and operating under duress due to appellee’s threat to kill the child if appellant did not agree to the support. Appellant claims further that he was “not cognizant of the nature and consequences of his actions” and believed that his obligation would be lifted after six years, as he and appellee had allegedly agreed. Brief of Appellant at 12. First, that appellant was uncounseled at the time he agreed to the support order does not undermine the validity or weaken the effect of the order. In fact, neither party had counsel. N.T., April 17, 1986, at 6. When entering into a support order, an individual does not have a right to counsel. Second, while it is true that there is an exception to the general rule that a support order conclusively determines the paternity issue, and that exception exists where fraud or mutual mistake induces a party to enter into such an order, the trial court found that appellant failed to substantiate his claim that he was under duress due to appellee’s alleged threat to kill the child if he did not agree to support. See Trial Court Opinion at 5. We agree. The only testimony concerning the alleged threat was provided by appellant, and it was insufficient to prove duress. Cf. Carrier v. William Penn Broadcasting Co., 426 Pa. 427, 431, 233 A.2d 519, 521 (1967) (duress that excuses one from performing a contractual obligation must be “sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness”). Appellant’s testimony on the issue of duress is meager: “[Appellee] threatened to kill the child if I didn’t agree to support, and she was overwrought, and because of her past history that I knew of her, it lent some creedance [sic], at least gave me a little concern that she might possibly act.” N.T., September 16, 1987, at 9 (emphasis supplied). Moreover, appellant could have raised the issue of duress on appeal from the original order. Cf Adoption of Young, supra 469 Pa. at 151-52, 364 A.2d at 1312-13 (that a party was motivated by a fear of losing custody of a child and therefore failed to challenge the paternity issue at an earlier proceeding does not make any less applicable the doctrine of collateral estoppel concerning the paternity issue). Finally, there is no evidence in the record to prove that the parties agreed that the support order would have effect for only six years. The order contains no such provision, is clear on its face and is unambiguous. Appellant has therefore failed to sustain his claim of fraud by appellee.

Finally, we find no merit to appellant’s assertion that there has been a change of circumstances warranting the vacating of the support order. Appellant knew he was not the biological father when he agreed to the support order. And, as we stated above, there is no evidence of record to support appellant’s claim that the order was to remain in effect for only six years.

Following a thorough review of the entire record, we are convinced that appellant voluntarily and knowingly entered into the 1980 support order. He has presented no grounds upon which he may now disclaim his obligations.

ORDER AFFIRMED.

      . The support order in question provided in pertinent part that:
      [on] this 12 day of November, 1980, upon presentation of the foregoing Agreement [for Order of Support], it is hereby ordered that [appellant] pay $40.00 per week for the support of one minor child, James, effective November 20, 1980.
      The wording of both the Agreement and the Order was virtually identical. In addition, both the Agreement and Order provided that appellant would pay certain utility bills at the residence shared by appellee and the child but that, on October 1, 1981, appellant would cease to pay the utility bills and would contribute a flat $150.00 per month for the support of the child only.

      . At the hearing on this matter, appellee maintained that, prior to the birth of the child, the parties had entered into a common law marriage. N.T., September 16, 1987, at 23. However, in 1981, appellant filed a declaratory judgment action in the Philadelphia County Court of Common Pleas, Connelly v. Schultz (No. 1793, November Term, 1981), seeking a declaration that the parties had never been married pursuant to 23 Pa.S. § 206. A default judgment was entered against appellee. On March 30, 1982, the court issued a decree declaring that the parties had never been married.

      . A detailed history of litigation concerning the support order follows. The order became effective on November 20, 1980. In 1983, appellant filed a petition to modify the order and requested that the required payment be reduced to $50.00 per month. The court denied the petition. In February 1986, a petition for contempt was filed against appellant for noncompliance with the support order. At the hearing on the petition, appellant raised for the first time the issue of paternity. See generally N.T., April 17, 1986. The court refused to hear any testimony on the paternity issue and instead directed appellant to pay monthly the already-ordered $150.00 plus $20.00 in arrears. In February 1987, appellant filed a petition for blood tests. At the hearing on the petition, the request for the blood test became moot because appellee admitted that appellant was not the biological father of the child. N.T., September 16, 1987, at 28. Thereafter, appellant filed the petition to vacate the support order that is now at issue.

      . Although appellant speaks of and many cases refer to the "res judicata" effect of support orders concerning the issue of paternity, technically it is the operation of the doctrine of collateral estoppel that bars appellant from relitigating the issue. See Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 315, 369 A.2d 416, 420 (1976) (Spaeth, J., concurring) (citing In re Adoption of Robert Dale Young, 469 Pa. 141, 152-53, 364 A.2d 1307, 1313 (1976)) (“collateral estoppel,” not "res judicata," is the "more correct term”). The doctrine of res judicata "holds that ‘an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.’ ” Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 232, 464 A.2d 1313, 1316 (1983). “The doctrine of collateral estoppel is a broader concept than res judicata. It operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit.” Id., 318 Pa.Superior Ct. at 236, 464 A.2d at 1318.

      . Even if after the entry of a support order the putative father is subsequently excluded by blood test as the biological father, the putative father is precluded from challenging paternity. Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987).

      . Paternity is not a changed circumstance in a modification proceeding. Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 304, 472 A.2d 1128, 1131 (1984). "It is a circumstance which by its nature cannot change, and it is necessarily adjudicated in entering the initial support order. Norris v. Beck, 282 Pa.Super. 420, 422 A.2d 1363 (1980).” Id.

      . Appellant likens the 1980 support order entered by agreement of the parties to a consent decree. He asserts that consent decress are not determinative of an issue. Brief of Appellant at 12. We disagree. The Pennsylvania Supreme Court has stated that
      [a]lthough a consent decree is not a legal determination by the court of the matters in controversy, it binds the parties with the same force and effect as if a final decree has been rendered after a full hearing on the merits. The fact that without the consent of the parties the court might not have rendered the judgment does not affect its effect as res judicata.

        Zampetti v. Cavanaugh, 406 Pa. 259, 265, 176 A.2d 906, 909 (1962) (citations omitted, emphasis in the original).

      . We note that the parties had enough sophistication in fashioning their original agreement to provide that appellant would pay the utility bills for a limited term after the entry of the order. At the end of that time period, the ordered payment would be reduced to $150.00 per month for the support of the child only. Moreover, a party’s ignorance concerning the legal consequences of not denying paternity at the earliest opportunity does not provide a sufficient reason to vacate a support order. See Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 307, 472 A.2d 1128, 1132 (1984) (support order would not be vacated even though appellant “was probably unaware at the time that his failure to disclaim paternity formally would have lasting legal significance”).

      . Even if appellant had been unaware that he was not the biological father, he could not, after the entry of the support order, deny paternity. See footnote 5, supra.


author: ROWLEY, Judge:

text:
    548 A.2d 298
    Helen B. DAMIANO v. William DAMIANO. Appeal of NERNBERG & LAFFEY, P.C.
    Superior Court of Pennsylvania.
    Argued April 13, 1988.
    Filed Sept. 27, 1988.

      James R. Cooney, Pittsburgh, for appellant.
    Frank J. Kernan, Pittsburgh, for appellee.
    Before ROWLEY, DEL SOLE, and MONTGOMERY, JJ.
   ROWLEY, Judge:

This appeal of Nernberg & Laffey, P.C., attorneys for plaintiff Helen Damiano (hereinafter “Wife”) in the underlying support action, is from the trial court’s order of August 18, 1987, denying the law firm’s request for a modification of the court’s order of support entered July 31, 1987. In the July 31 order, the trial court, inter alia, directed defendant/appellee William Damiano (hereinafter “Husband”) to pay to the Department of Public Welfare (hereinafter “DPW”) support arrearages of $15,789.09. In their request for modification, appellant Nernberg & Laffey, who had been retained by Helen Damiano on a contingent fee basis in her suit to recover the arrearages, asserted that they were entitled to recover their fees and costs from the arrearages. In effect, the trial court’s order of August 18 denied appellant’s request for counsel fees and costs.

Appellant’s sole issue on appeal is whether the trial court erred in denying the firm’s request for counsel fees and costs. Husband has not appealed the court’s order directing him to pay the arrearages. His position in this appeal is that he does not care whom he is directed to pay, but he does not wish to be burdened with any part of the costs of the appeal. Wife has taken no part in this appeal. For the reasons set forth below, we affirm the order of the trial court.

The facts of the case, briefly summarized, are as follows: An ex parte order entered in the Allegheny County Court of Common Pleas on September 5, 1973, directed Husband to pay $150.00 per week toward the support of Wife and their six children. Husband, who had moved to Colorado, made no payments pursuant to this order. On March 13, 1986, Wife, represented by appellant Nernberg & Laffey, moved to enter judgment on the arrearages that had resulted from Husband’s failure to comply with the support order of September 5, 1973. Husband disputed Wife’s claim for arrearages. Following hearings, the trial court entered an order stating, in pertinent part:

AND NOW, July 31, 1987, it is hereby ordered that the Payor pay ... ONE HUNDRED TWENTY-FIVE Dollars ($125.00) a month ... for the support of: child plus Defendant to pay $400.00 per month on arrearages set at $15,789.09 owing the period of Sept. 5,1973 through Feb. 1, 1978. D.P.W. Payee on arrearages.

Appellant Nernberg & Laffey moved for modification of this order, arguing that they were entitled to recover from the arrearages their contingent fee of thirty-three (33) percent, or $5,263.03, as well as $192.06 advanced as costs, for a total of $5,455.09. Appellant had acknowledged during the course of the proceedings that Wife had received public assistance from DPW from 1973 until 1980 and that DPW held a lien on Wife’s home, the amount of the lien being $24,739.67 as of April 7, 1986. Appellant’s motion was denied by the trial court in an order entered August 18, 1987, and this timely appeal from that order followed.

In an opinion dated November 5, 1987, the trial court offered three reasons in support of its denial of appellant’s request for counsel fees. First, “the arrearages were not Wife’s to assign” (Trial Court Opinion at 2), but were instead owed to DPW pursuant to 62 P.S. § 1975, which provides that “[wjhenever any person shall become a public charge or receive public assistance, the public body or public agency caring for or furnishing such assistance may sue for and recover any sum of money due such person____” Second, the “common fund doctrine” on which appellant relies is not applicable in the present case, inasmuch as the fund from which appellant seeks payment was created not by appellant’s efforts but by statutory provisions requiring Husband to reimburse DPW. Finally, “there simply is no authority for the collection of welfare arrearages by private attorneys who would assess their fees against the Commonwealth” (Trial Court Opinion at 5b).

Appellant does not dispute DPW’s entitlement to some portion of the arrearages to be paid by Husband. The gravamen of appellant’s argument on appeal is that “[DPW’s] claim is subordinate to the charging lien of the attorney(s) responsible for creating the fund from which payment will come” (Brief for Appellant at 7; emphasis added). 62 P.S. § 1975 is not self-executing, appellant argues, for the plain language of the statute provides only that a public agency “may sue for and recover any sum of money due” a person to whom the agency has furnished assistance. In the present case, DPW has not sued to recover the support arrearages owed by Husband. In fact, appellant asserts, DPW has been informed of the pendency of this appeal but has failed to take any action whatsoever. “Where, despite a clear right to proceed in its own right ... the Commonwealth refrains from acting and it is the attorney for the welfare recipient who creates the fund from which the Commonwealth will benefit ... equity requires that the Commonwealth share in the cost of creating the fund.” Shearer v. Moore, 277 Pa.Super. 70, 76, 419 A.2d 665, 668 (1980). According to appellant, where, as here, there is a fund available for distribution, counsel’s services contributed to the creation of the fund, and the client had agreed that counsel should be paid from the fund, counsel’s “charging lien” should be recognized.

We cannot agree. It is settled law that we may affirm the decision of the trial court on grounds other than those relied upon by the court itself, Daniel Adams Associates v. Rimbach Publishing, Inc., 360 Pa.Super. 72, 85 n. 3, 519 A.2d 997, 1003 n. 3 (1987), and we do so in the present case. First, we direct appellant’s attention to Ethical Consideration 2-20 of the Code of Professional Responsibility, adopted February 27, 1974, as amended through April 26, 1984, which was in effect when the present action was initiated. EC 2-20 advises attorneys that “contingent fee arrangements in domestic relation cases are rarely justified.” Compare Rule of Professional Conduct 1.5(d)(1), adopted October 16, 1987, effective April 1, 1988 (“[a] lawyer shall not enter into an arrangement for, charge, or collect ... any fee in a domestic relations matter, the payment or amount of which is contingent upon ... the amount of alimony or support ... ”). We note also that appellant could have sought to recover fees and costs from Husband pursuant to 23 Pa.C.S.A. § 4351.

Second, there is nothing in the record that has been certified to this Court to confirm appellant’s assertion that DPW has been notified of this appeal. In particular, the certificate of service attached to appellant’s notice of appeal indicates that only Husband’s counsel and the trial court were served. Moreover, there is nothing in the certified record to indicate that DPW was ever notified of the proceedings in the trial court. We may consider only the facts that appear in the official record, Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974), and the responsibility for providing a record that is comprehensive and complete rests with appellant, Commonwealth v. Williams, 357 Pa.Super. 462, 466, 516 A.2d 352, 354 (1986). Absent affirmative evidence that DPW has been informed of but has declined to participate in this appeal, we cannot assume that DPW is uninterested in its outcome, nor can we assume that DPW would be unable to offer meritorious arguments on the issue now before us.

Finally, we acknowledge that a “charging lien” will be imposed where the fund from which an attorney is to recover his or her fee would otherwise be depleted by creditors with prior claims, leaving the attorney unpaid and unable to recover against the client. Johnson v. Stein, 254 Pa.Super. 41, 45, 385 A.2d 514, 516 (1978). However, before a court will recognize and apply a charging lien on behalf of an attorney, it must appear, inter alia, that equitable considerations necessitate the recognition and application of such a lien. Id., 254 Pa.Superior Ct. at 43-44, 385 A.2d at 515-16 (quoting Recht v. Clairton Urban Redevelopment Authority, 402 Pa. 599, 608, 168 A.2d 134, 138-39 (1961)). “Where considerations of protecting the attorney do not necessitate imposition of a lien, the court will not impose one.” Id., 254 Pa.Superior Ct. at 45, 385 A.2d at 516. In the present case, equitable considerations argued against appellant’s acceptance of a contingent fee arrangement whereby appellant would seek reimbursement, not from Husband, whose failure to comply with a support order necessitated Wife’s lawsuit, but from the support arrearages that appellant knew or should have known were likely to be awarded to DPW. Therefore, we affirm the trial court’s order denying appellant’s request for counsel fees.

Order affirmed.

      . a) General rule. — When it appears to the court that either party or both parties are financially able to pay costs and fees, the court may impose the costs and fees on either party or both parties.
      (b) Lack of good cause for failure to pay on time. — If the court determines that the person subject to a child support order did not have good cause for failing to make child support payments on time, it may further assess costs and reasonable attorney fees incurred by the party seeking to enforce the order.