author: TAMILIA, Judge.

text:
    588 A.2d 53
    COMMONWEALTH of Pennsylvania v. David DOUGLASS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 22, 1991.
    Filed March 20, 1991.

      William A. Fetterhoff, Harrisburg, for appellant.
    Kathy G. Wingert, Asst. Dist. Atty., Harrisburg, for Com.
    Before OLSZEWSKI, BECK and TAMILIA, JJ.
   TAMILIA, Judge.

This is an appeal from a March 1, 1990 judgment of sentence imposed following a jury conviction for simple assault and the denial of post-trial relief. The imposition of a jail sentence was suspended and appellant was sentenced to twelve months probation, 150 hours of community service and a $500 fine.

Appellant is the principal of Mountain View Christian School, a private school affiliated with a Hummelstown, Pennsylvania, fundamentalist church. The assault in question occurred on December 2, 1988, wherein appellant, the 86-year old, six foot tall, 210 pound school principal, administered a paddling to John Onderdonk, a seven year old first grade student who had repeatedly misbehaved during the course of the day. John is three feet ten inches tall and weighs approximately 45 pounds. The testimony presented indicated the school was aware the victim had been medically diagnosed as hyperactive and was on medication for his behavioral problems. All parents enrolling their children in the school receive a written explanation of the school’s corporal discipline policy and are asked to sign a prepared consent form giving their approval of the policy. Susan Rothenberger, John’s mother, executed such a consent form upon the child’s enrollment in the school.

It appears the victim was no stranger to the paddle. He testified he was paddled many times prior to December 2nd by his parents as well as school authorities. However, the December 2nd paddling was much worse than the other times. He said he was paddled twice, with a brief interval, then paddled twice more, totalling 50 to 60 swats — although admittedly he did not count. Appellant had paused to phone John’s mother to inform her of her son’s misconduct. Upon returning, the paddling continued. The victim described the effect of his pain as leaving him choked and having trouble breathing.

In conflicting testimony, the appellant maintained there were two brief interludes between the paddling sessions and he administered only 7 to 10 swats in toto. The initial paddling appeared ineffective and appellant was dissatisfied because the victim was rebellious and not submissive. The testimony of appellant, as well as that of a witness to the spanking, indicated the boy was not crying when he left school, he walked without difficulty and did not complain.

Victim’s mother and step-father, upon seeing the bruises on the boy’s buttocks that evening, took him to the police. Derry Township Police officers testified to the bruises, and color photographs were introduced displaying bruises on both sides of the buttocks and back of the legs. Upon advice of the police, the parents took the victim to the hospital. The treating physician testified the bruising was consistent with forceful and repeated paddling. He further stated the boy would have experienced an extreme amount of pain. Appellant presented the testimony of an examining physician who testified any pain would have been fleeting and the discoloration and swelling would disappear in a couple of days.

Since the incident, the victim has received counseling from a psychologist for depression and emotional problems. He has also cried at night, has nightmares and trouble sleeping.

Appellant argues the trial court abused its discretion by failing to dismiss the information for failure to state a cause of action. Crucial to our examination of this issue is a careful analysis of the applicable statute. Simple assault is defined as:

(a) Offense defined. — A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.

18 Pa.C.S. § 2701(a)(1). “Bodily injury” is defined as “substantial pain.” 18 Pa.C.S. § 2301. Thus, one is guilty of simple assault where he intentionally, knowingly or recklessly causes one to suffer substantial pain. See Commonwealth v. Ashford, 277 Pa.Super. 400, 419 A.2d 1206 (1980). However, a teacher or principal, otherwise entrusted with the care or supervision of a minor for a special purpose, is justified in using force on the minor as long as:

(i) the actor believes that the force used is necessary to further such a special purpose, including the maintenance of reasonable discipline in a school, class or other group and that the use of such force is consistent with the welfare of the minor; and
(ii) the degree of force, if it had been used by the parent or guardian of the minor would not be unjustifiable under paragraph (l)(ii).

18 Pa.C.S. § 509(2)(i), (ii) (emphasis added). Paragraph (l)(ii) provides:

(ii) the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.

Id. § 509(l)(ii) (emphasis added). It is uncontested by all parties the victim’s behavior in school that day warranted a paddling. However, what is at issue is whether the force used by appellant was excessive thereby subjecting him to criminal liability. Our review focuses on the statutory provision as it relates to "extreme pain or mental distress.” The Commonwealth does not allege that the appellant’s behavior created a substantial risk of causing death, serious bodily injury, disfigurement or gross degradation.

In our view, the legislature has made the Commonwealth's burden in proving school personnel committed assault greater than that of other unspecified classes of persons. With the latter group, the Commonwealth need only prove “substantial pain” in order to convict one for simple assault. However, the Commonwealth must prove a minor has suffered “extreme pain” when attempting to prosecute a “teacher or person otherwise entrusted with the care and supervision of a minor.” 18 Pa.C.S. § 509. Although a teacher who causes “extreme pain” necessarily causes “substantial pain,” because the definition of substantial pain is necessarily included within the meaning of extreme pain, the two terms are not synonymous. Thus, by proving the child merely suffered substantial pain does not automatically prove he has suffered extreme pain. A showing of extreme pain requires more and places on the Commonwealth a higher standard of proof. Accordingly, in order to sustain a simple assault conviction for a teacher or person otherwise entrusted with the care or supervision of a minor for a special purpose, the Commonwealth must not merely prove the child suffered substantial pain, but rather suffered extreme pain.

After a thorough review of the record, we find the trial court properly instructed the jury of its role in making this finding. Although the distinction between “extreme pain” and “substantial pain” as a necessary element to convict appellant of assault could have been clearer, we hold the judge did not abuse his discretion. See Commonwealth v. Tharp, 373 Pa.Super. 285, 541 A.2d 14 (1988). The error, if any, was de minimis.

Appellant asserts the charge of simple assault in conjunction with the exceptions contained in- (2)(ii) and (l)(ii) of section 509 violates due process in that guilt posited on inflicting “extreme pain” is fatally vague. He contends the prohibition against inflicting extreme pain fails to give adequate, reasonable or fair notice of the conduct condemned. We disagree.

In order to comply with the due process clauses of both the Pennsylvania and United States Constitutions, a criminal statute must be sufficiently certain and definite to inform the accused of the acts which the statute is intended to prohibit and which will render one liable to its penalties. City of Chester v. Elam, 408 Pa. 350, 184 A.2d 257 (1962). Albeit the term extreme pain is not defined by statute, the words “extreme pain” are not so vague that persons of common intelligence must necessarily guess at their meaning and differ as to their application. The purpose of the statute is clear. It is to allow corporal punishment as to parents, teachers and legitimate child caretakers which, without section 509, would fall under the definition of simple assault. However, corporal punishment may not exceed the bounds justifiable for maintenance of reasonable discipline, consistent with the welfare of the minor.

The term “extreme” is synonymous with excessive. The statute simply says pain inflicted as a result of discipline must not be excessive. The punishment must be justifiable and fit the misconduct. Excessive discipline is contrary to the welfare of the child, even when discipline is justifiable. The statute is not vague; rather, appellant was on notice of the prohibited conduct and was required to act accordingly. In addition, we find, upon reviewing the charge as a whole, no reason to believe the jury was confused by the terms of the statute as delineated by the court.

Appellant next maintains a school teacher may only be convicted of an assault-type charge if the discipline is sufficiently harsh to fall within the terms of “aggravated assault.” In rejecting this argument, we believe the legislature never intended 18 Pa.C.S. § 509 to shield a school teacher from ever being convicted for simple assault as amplified by the statute. The official comment to section 509 states in pertinent part:

This section is derived from section 3.08 of the Model Penal Code and makes no substantial change in existing law.
[A] teacher may inflict reasonable corporal punishment on a student. Commonwealth v. Yalk, 30 Luz.L.Reg. 173 (1984).

18 Pa.C.S. § 509 Official Comment — 1972. The legislation in question is an attempt to shield parents, principals, teachers and persons otherwise entrusted with the care or supervision for a special purpose from simple assault liability, where the degree and manner of force used and the attendant justifications are neither excessive nor unreasonable under the circumstances. However, the statute is a determination by the legislature that it is unreasonable for a teacher to inflict “extreme pain.” Consequently, it is the legislature’s intent to hold teachers accountable for simple assault which does not reach the level of an aggravated assault, where the pain inflicted is extreme.

Our ruling today does not deviate from our decision in Commonwealth v. Ogin, 373 Pa.Super. 116, 540 A.2d 549 (1988), alloc. denied 521 Pa. 612, 557 A.2d 343 (1989), in which parents, who attempted to raise the shield of section 509, were convicted of simple assault. In Ogin, the degree of force used against a 17-month old baby was not only unreasonable and excessive, in light of the age and mental condition of the child being disciplined, thus endangering the child’s welfare, but the discipline was certainly not used for the purpose of safeguarding or promoting the welfare of the child.

Appellant asserts the trial court also erred by denying his request for an independent psychological evaluation of the victim. The denial of the request for an independent psychiatric or psychological examination, it is alleged, prevented the presentation of evidence to rebut the claim the paddling caused the child to suffer mental distress. This claim is wholly without merit.

Concededly, this is a matter within the discretionary discovery guidelines of Pa.R.Crim.P. 305(B)(2). In order to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with the protection of persons, effective law enforcement, the adversary system and material security. Commonwealth v. Thiel, 323 Pa.Super. 92, 470 A.2d 145 (1983). In the instant case, all medical and psychological reports were turned over to appellant prior to trial. The Commonwealth presented no expert testimony regarding the child’s psychological condition following the paddling nor did it attempt to represent the child as diagnosed as suffering mental distress. As the trial court stated:

There was no need to cross examine any expert called by the Commonwealth or rebut such testimony for there was none. The boy did state he had nightmares following the paddlings. Whether the child actually suffered from anxiety was a matter of credibility, not expert opinion. It may also be noted the defense was allowed to show the charges were not brought until after the child was taken to a psychologist and the defense did argue the mother’s motivation on taking the child to the psychologist was to build a case.

(Slip Op., Lipsitt, J., 2/2/90, p. 10.) Accordingly, the court did not abuse its discretion by denying appellant the opportunity to have an independent psychological assessment of the child.

Appellant next contends the trial court erred in preventing appellant from introducing evidence concerning drug use by the child’s mother, in an effort to establish independent traumatic factors contributing to the emotional distress of the child victim. Admission or exclusion of evidence is a matter for the trial judge’s discretion and will not be reversed absent abuse of discretion. Commonwealth v. Williams, 344 Pa.Super. 493, 496 A.2d 1213 (1985); Commonwealth v. Pittman, 320 Pa.Super. 166, 466 A.2d 1370 (1983).

The causal nexus between the mother’s activity and the child’s anxiety concerning his principal following the paddling is at best tenuous. Additionally, evidence of the mother’s purported drug abuse would be more prejudicial than probative and would unfairly prejudice the Commonwealth. A trial court may exercise its discretion to exclude evidence which although relevant, may confuse, mislead or prejudice the jury. Commonwealth v. Lumpkins, 324 Pa.Super. 8, 471 A.2d 96 (1984).

Finally, appellant maintains the evidence was insufficient as a matter of law to sustain the verdict. We find overwhelming evidence present from which a jury could find, beyond a reasonable doubt, appellant inflicted extreme pain on the victim. This Court’s standard of review for “sufficiency of the evidence” claims views the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, viewed in this light, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. MeIlvaine, 385 Pa.Super. 38, 560 A.2d 155 (1989). The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact, who is free to believe, all, some or none of the evidence. Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (1986).

The minor testified the paddling hurt worse than any previous paddling, and hurt more than falling from his bicycle or other childhood injuries. From its combined common living experience, a jury could determine that receiving 60 to 70 whacks from a 210 pound principal striking a paddle against his buttocks would be extremely painful for a 45 pound, seven year old boy. Additionally, testimony of parent witnesses, detective witnesses and the examining physician in addition to the pictures depicting the extent of the boy’s injuries, if found credible by the jury, would support its verdict.

As the trial court appropriately stated:

Whether the testimony by the boy or by the doctor who treated him, or the photographs introduced through the police were exaggerations were matters for the jury to evaluate and after the verdict, their credibility must be accepted.
The evidence established that the Defendant inflicted not only substantial (a violation of 18 Pa.G.S. § 2701(a)(1) defined in 18 Pa.G.S. § 2301) but extreme pain (unjustified under 18 Pa.G.S. § 509) upon the child at the time of the paddlings in addition to longer term mental distress. As such, the evidence is sufficient to support the verdict of guilty of simple assault and the jury’s implicit conclusion that the paddling exceeded what is permissible under the justification provisions of § 509. The paddling amounted neither to reasonable discipline nor to force consistent with the welfare of the minor.

(Slip Op. at 12.) Accordingly, we affirm.

Judgment of sentence affirmed.

      . Three incidents took place in Commonwealth v. Ogin, 373 Pa.Super. 116, 540 A.2d 549 (1988), alloc. denied 521 Pa. 612, 557 A.2d 343 (1989), any one of which, in and of itself, would sufficiently take the conduct outside 18 Pa.C.S. § 509 protection. A 17-month old baby was slapped with extreme force by her mother after the baby quietly extended her arms gesturing that she wanted to be picked up; the father burned the child by shoving a plate of hot spaghetti in the child’s face because the child did not immediately eat after the spaghetti came off the hot stove; the child was forcefully thrown up against a brick wall after she ran from her mother down a sidewalk after her 3-year old brother who was riding a bigwheel.


source: Caselaw Access Project

author: DEL SOLE, Judge. HUDOCK, Judge,

license: Public Domain

text:
    588 A.2d 58
    Arthur B. HOLLAND a/k/a Arthur Bewley Holland, Appellant, v. Lula Mae Williams HOLLAND, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1990.
    Filed Feb. 12, 1991.
    Petition for Allowance of Appeal Denied Aug. 6, 1991.

      Michael R. Sweeney, Media, for appellant.
    Thomas L. Kelly, Media, for appellee.
    Before OLSZEWSKI, DEL SOLE and HUDOCK, JJ.
   DEL SOLE, Judge.

In this appeal of an equitable distribution order, Appellant raises four questions. Chief among them is the method used by the trial court in distributing the marital share of Appellant’s pension. The trial judge, after entering a decree of divorce, ordered Mr. Holland’s government retirement plan be equitably distributed using the deferred distribution method. The court ruled that the basic benefit of this asset should be determined at the time that husband retires based upon an application of the coverture fraction.

In evaluating an equitable distribution scheme, an appellate court will not reverse an order determining equitable distribution absent an abuse of discretion Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987).

Wife was awarded forty percent of husband’s government pension using a coverture fraction, the length of the marriage being the numerator, and husband’s total years of employment the denominator. This was to be applied to his basic retirement benefits without adjustment. Basic benefits are calculated by averaging the three highest income earning years of the husband’s last five years of employment. Appellant argues that the portion of benefits attributable to service credits earned after separation is not part of the marital estate. He would have the court value the pension at the time of divorce and fix future distribution at that time.

This court has repeatedly stated that in general “only that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property within the meaning of the divorce code.” Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987). However, an exception to this rule was stated in Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986). It was there held that “where a plan has vested and value increases aside from contribution of the parties, beyond the date of separation,” Id., 357 Pa.Superior Ct. at 344-45, 516 A.2d at 12-13, the increase is marital property, (emphasis added). A delayed distribution of pension benefits requires the non-employed spouse to wait until some indefinite time in the future to receive the marital share. To compensate for this postponement of benefit, that spouse is permitted to enjoy increases in value occasioned by continued employment of the worker. Also, the employed spouse increases the non-marital share of the benefits since continuing service enlarges the denominator. Further, later year wage increases are a product of experience and longevity which were developed during the marriage. The husband, as a long time employee of the Federal Government, can look forward to the benefits which accrue from a vested pension. His former spouse is entitled to share in any increase in value of the marital share which may occur by Appellant’s continued employment.

Appellant’s second contention is that the trial court failed to consider wife’s social security benefits in its equitable distribution analysis. Section 401(d) of the divorce code requires the court to consider all sources of income, including social security. 23 P.S. § 401(d)(6). As an employee of the Federal Government, husband does not participate in the social security program. Wife is entitled to collect social security benefits when she attains the age of sixty-five based on her employment history. Husband argues that the trial court, in awarding him sixty percent of the his pension did not compensate him for his lack of social security benefits. We believe the trial court did take into account the wife’s expectation of social security benefits. The husband’s estimated pension benefit for trial purposes was Four Thousand Two Hundred Thirty-three Dollars ($4233.00) per month. Sixty percent of that figure is two Thousand Five Hundred Forty Dollars ($2540.00). The wife would receive One Thousand Six Hundred Ninety-Three Dollars ($1693.00), which when combined with her estimated social security benefit of Eight Hundred Fifty-Eight Dollars ($858.00) would equal Two Thousand Five Hundred Fifty-One Dollars ($2551.00) the same amount the husband would receive in pension benefits. Since this is in keeping with the overall distribution, we conclude that the trial court did take into account wife’s potential social security.

Appellant further contends that the trial court erred in its order that wife is to receive Forty percent of husband’s “basic retirement benefit, before any adjustments thereto”. The husband has remarried and argues that, under the applicable federal pension statutes, his current wife has an absolute entitlement to the survivor’s annuity portion of his retirement unless she waives her right to this annuity. As his current wife has not waived this right, husband submits that his basic retirement benefit shall be decreased substantially by this election. From our thorough review of the record we are unable to find that husband presented any testimony describing the financial impact of his remarriage. We are mindful that it was the husband’s conscious decision to remarry. The effect his remarriage may have on his share of the pension does not relate to his former wife’s interest in the marital estate.

Appellant also contends that the trial court abused its discretion by failing to consider the interest earned from date of separation to date of hearing on wife’s IRA and profit sharing account. Because the value for different assets fluctuates substantially from time to time, the valuation date for marital property is generally to be the time of distribution. Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988). Yet where the evidence offered by one party is uncontradicted, the court may adopt this value although the resulting valuation would have been different if more accurate and complete evidence had been presented. See Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987). Absent a specific benchmark for valuation, the trial court is free to select the date which best serves to provide for economic justice between the parties. Miller v. Miller, 395 Pa.Super. 255, 577 A.2d 205 (1990). Here, as the trial court points out, the husband supplied date of separation figures for both the IRA and profit sharing accounts, and these figures were used in the court’s determination. Since the court also notes that it did attempt to consider the accounts and their future value when it considered the disposition of husband’s pension plan, the court did not abuse its discretion.

Appellant’s last contention is that the trial court erred in its valuation of a parcel of West Virginia real estate. The parcel in question was a gift to the couple from the wife’s mother. The wife submitted a written appraisal which valued the property at Twelve Thousand Five Hundred Dollars ($12,500.00). (Counsel for husband had stated he had no objection to the use of the handwritten appraisal, N.T. 11-12-89 at 99). The husband presented expert testimony which valued the property at Twenty-Eight Thousand Dollars ($28,000.00). On the basis of countervailing testimony the trial court assessed the value of the disputed property to be Twenty-Thousand Dollars ($20,000.00). See Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985). Since the trial court provided us with the benefit of its reasoning in reaching the determination of the value of the real estate, we find the court did not abuse its discretion.

Order affirmed.

HUDOCK, J., files a concurring and dissenting memorandum.

HUDOCK, Judge,

concurring and dissenting:

I concur with so much of the majority’s decision as finds no abuse of discretion in the trial court’s valuation of the West Virginia real estate. However, I respectfully dissent from the other aspects of the majority decision.

Unlike the majority, I would find that the trial court erred and abused its discretion in its ordered distribution of Mr. Holland’s (hereinafter “Husband”) government pension to Lula Mae Williams Holland (hereinafter “Wife”). Husband does not argue fault in the court’s utilization of the deferred distribution method; instead, he argues that the ordered distribution permits Wife to receive the benefit of service credits which he earns post-separation. The majority finds this permissible because of the fact that Wife must wait until some point in the future before enjoying the benefits of her portion of the marital share (the “coverture fraction”) of Husband’s pension. The majority further justifies its position because “later year wage increases are a product of experience and longevity which were developed during the marriage.” At 60.

Although I share the majority’s concern that a non-employed spouse may be required to wait, at his or her peril, to receive distribution of the pension funds, I believe the facts of this case permit an ordered distribution which properly allocates to each former spouse his or her equitable share, and yet affords both of them ample protection. In my opinion, the trial court should have viewed the date of separation as Husband’s retirement date. Basic benefits would be determined by averaging the highest three years’ salary of the last five years of Husband’s employment, as specified by the plan. This would have permitted the coverture fraction to be determined, and therefore, the immediate allocation of the pension between the parties. An appropriate and acceptable qualified domestic relations order (QDRO) could then be drafted specifying that Wife was to receive a particular monthly benefit and each parties’ allocation segregated into separate accounts maintained by the pension fund administrator. Husband’s civil service plan permits such alienation and also specifically requires that the participant spouse shall receive a reduced annuity so as to provide for a “former spouse annuity”. 5 XJ.S.C. § 8345(j).

This approach would permit each party’s account to grow, or diminish, in equal proportion and also maintain the parties in the same relative position that they would have been in had the marriage not ended. Each of the parties then becomes, effectively, a member of the pension fund with individual accounts and, as such, is subject to the fund’s rules and regulations regarding withdrawals. Thus, if the plan administrator agrees, and the plan so authorizes, it is permissible for the benefits to be paid to the permissive distributee (e.g. the divorced, non-employee spouse) on or after the date that the participant spouse attains, or would have attained, the earliest retirement date. Massler, supra. If, as Wife’s expert testified, Husband meets the plan’s requirements of age and length of service so as to be presently eligible to receive annuity payments, Wife will also be eligible presently to receive her “deferred” distribution. In fact, a QBRO may require the plan to pay the permissive distributee or alternate payee “any type or form of benefit offered by the plan regardless of that chosen by the participant spouse.” Id. at 227.

Admittedly, the facts of the instant case complicate this approach because Wife remarried prior to reaching the age of 55. Husband’s plan specifically disqualifies Wife from currently receiving a “former spouse annuity” because of this fact. 5 CFR 831.625. Despite this, I do not think Wife’s claim for the pension is defeated. The parties separated on December 1, 1985 and a decree of divorce entered on June 29, 1987. Although Wife remarried on September 19, 1987 (R. 172a), her claim regarding the equitable distribution was not finalized by the trial court until December 7, 1989. I believe that Wife is entitled, at a minimum, to receive 40% of the coverture fraction of Husband’s basic monthly entitlement, determined using the date of separation as his artificial retirement date as explained above, for the period between separation and August 31, 1987. As previously discussed, however, the plan may be required to pay Wife any type or form of benefit offered by the plan. The court should also order Husband to pay, when his pension goes into pay status, Wife an amount equal to what she was entitled to receive on a monthly basis from her “former spouse annuity”.

I also believe it is necessary to vacate that portion of the trial court’s decree of equitable distribution relating to Wife’s Social Security benefit. It is clear that the court’s consideration of this anticipated benefit was so intertwined with the issue of equitable distribution of Husband’s pension that the court must be afforded an opportunity to reexamine the entire matter.

Hence, I would reverse and remand.

      . The court awarded Wife forty percent (40%) of that portion of Husband’s basic retirement benefit which is determined to be part of the marital estate. The court found the coverture fraction could not be immediately determined since it chose the delayed distribution method in its award.

      . There is, undoubtedly, some truth to this statement. However, there is not enough truth to it so as to permit any reliable consideration of the theory in equitable distribution. Additionally, the majority does not comment on the fact that Wife has a profit sharing plan and an Individual Retirement Account (IRA), both of which are, in part, the product of experience and longevity developed during the course of the marriage. I think it was incumbent upon the trial court to include both of these assets as part of the marital estate and justify its award thereof.

      . I realize that Husband has taken the position that the pension must be valued at the time of the divorce. (Brief for Appellant, at 12.) However, this Court has stated that "[o]nly that portion of the pension attributable to the period commencing with the marriage and ending on the date of separation is marital property----” Braderman v. Braderman, 339 Pa.Super. 185, 196, 488 A.2d 613, 618 (1985). (Citation omitted).

      . The trial court determined the length of the marriage, the numerator of the coverture fraction, was 26.75 years. Wife’s expert testified that the information in his possession indicated Husband’s service computation date was June 21, 1954. However, Wife’s expert was uncertain as to Husband’s length of service as it appeared that there was additional credited service.

      . For a review of drafting considerations, see Massler, Qualified Domestic Relations Orders: A Statutory Analysis, 19 Seton Hall L.Rev. 224 (1989). See also, 5 CFR 831, et seq.

      . This approach would also eliminate most, if not all, of the "negative factors” associated with the deferred distribution method. See, Troy-an, Pension Evaluation and Equitable Distribution, 10 FLR 3001, Monograph No. 1 (1983).

      . 5 CFR 831.625 mandates that a former spouse annuity, or eligibility therefor, terminates on the last day of the month before the month in which the former spouse remarries before attaining age 55.

      . Additionally, it is clear that the court’s order did not comport with our recent decision in Cornbleth v. Cornbleth, 397 Pa.Super. 421, 580 A.2d 369 (1990) (CSRS participants should be equated with Social Security participants and the present value of the Social Security benefit should be deducted from the present value of the CSRS pension prior to determining the marital portion of the pension which is included in the marital estate for equitable distribution.)


author: JOHNSON, Judge. CERCONE, Judge,

text:
    588 A.2d 513
    COMMONWEALTH of Pennsylvania v. Janet MARTINEZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1990.
    Filed Jan. 23, 1991.
    Reargument Denied April 8, 1991.

      Bradley Bridge, Asst. Public Defender, Philadelphia, for appellant.
    Helen Kane, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge.

On this appeal, we are asked to decide whether a woman who walked quickly away from a group of people on a street corner after observing a nearby police vehicle could be either arrested or detained for a limited purpose, where the pursuing police officers observed a bulge in her front pocket prior to commanding her to stop. We are unable to find that the specific and articulable facts available to the arresting officers would have warranted any reasonable belief that criminal activity was afoot. We conclude that, since grounds for seizure of the defendant even for a limited purpose did not exist, the seizure was unlawful. We are constrained to further conclude, therefore, that the evidence acquired as a result of the seizure should have been suppressed. Accordingly, we reverse the judgment of sentence and remand for a new trial.

A police officer must rely on specific and articulable facts which, if taken together with rational inferences from those facts, reasonably warrant a belief that criminal activity is afoot before an initial investigatory stop can lawfully be made. Adams v. Williams, 407 U.S. 143, 146-46, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-17 (1972); Common wealth v. Smith, 396 Pa.Super. 6, 577 A.2d 1387, 1389 (1990).

A police officer is entitled to conduct a limited search of an individual to detect weapons if the officer observes unusual and suspicious conduct on the part of the individual which leads the officer to reasonably believe that criminal activity is afoot and that the person may be armed and dangerous. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968); Commonwealth v. Lagana, 517 Pa. 371, 376, 537 A.2d 1351, 1354 (1988). In striking the balance between the public interest and the individual’s right to personal security free from arbitrary interference of law enforcement officials, the initial inquiry must focus upon the propriety of the initial restraint of the defendant’s freedom of movement. Adams v. Williams, supra, Commonwealth v. Anderson, 481 Pa. 292, 297, 392 A.2d 1298, 1300-1301 (1978).

Flight, in and of itself, cannot constitute probable cause to arrest. Commonwealth v. Pegram, 450 Pa. 590, 593, 301 A.2d 695, 697 (1973). The mere fact that a person “quickens his pace” upon being observed by police and starts to run when a police officer begins to chase him does not give rise to a reasonable belief that criminal activity is afoot, and is therefore insufficient to justify even a Terry stop, absent some other factor which would give rise to criminal conduct. Commonwealth v. Jeffries, 454 Pa. 320, 325, 311 A.2d 914, 917 (1973).

Police can be said to have seized an individual only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that she or he was not free to leave. Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).

In reviewing the ruling of a suppression court, the reviewing court’s initial task is to determine whether the factual findings are supported by the record; in making this determination, if the suppression court held for the prosecution, the reviewing court must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986). The reviewing court may not substitute its own findings for those of the suppression court, but this principle of deference has one important caveat: Appellate courts are not bound by findings wholly lacking in evidence. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137, 139 (1983).

In this case, Martinez did not present any evidence to contradict that offered by the Commonwealth. We are, therefore, bound by the trial court’s findings of fact to the extent that they are supported by the record. Commonwealth v. Smith, 396 Pa.Super. 6, 577 A.2d 1387, 1389 (1990).

The facts presented by the Commonwealth at the suppression hearing do not support any conclusion that criminal activity was afoot and that Janet Martinez was engaged in such activity.

At the suppression hearing held February 10, 1989, Officer Howard Lee, a Philadelphia police officer, was the only witness. He testified that on October 6, 1988, he was on duty along with his partner, Robert Kimbrough. They were in an unmarked police vehicle. Both officers were in uniform. The time was approximately 12:20 A.M. Suppression Transcript, February 10, 1989, pages 7-8.

As the vehicle in which the uniformed officers were riding approached the intersection of Clearfield and Hutchinson Streets in the City of Philadelphia, Officer Lee observed Janet Martinez (Martinez), the appellant in this case, and four or five other people standing on the corner. The members of the group appeared to be talking. Id., pages 8, 15. The members of the group looked in the direction of the approaching police vehicle. Martinez turned and started to walk very quickly north on Hutchinson Street. The other people in the group went in different directions. Id., pages 8-9, 16-17.

Officer Lee and his partner, still in the vehicle, turned into the block up which Martinez had walked, and pursued Martinez. As the officers drew closer to her, Officer Lee observed that Martinez was “holding her hands in the front of her coat, leaning forward, as if to be holding something, leaning forward, walking quickly up the street.” Id., page 18. As the police vehicle drew alongside Martinez, Officer Lee asked her “would she come over here, turn around and take her hands out of the jacket, and put her hands on the car.” Id.

Lee further testified:

She leaned all the way on the car with her face down towards the hood of the car. Her whole body, upper torso was leaning on the front of our car. I asked her to stand up, and keep her hands on the car, and move back away from the car, don’t lean on the car the way she was, and as she stood up, and did as I asked her, one of the bags dropped on the ground.

Id., page 19. Lee later testified, on cross-examination:

Q. You were riding up alongside of her as she was running away from you?
A. She was in the street, and when we pulled up, she moved over to the side. I pulled up next to her and exited the vehicle. She was toward the front of my car. I exited my vehicle, came around to her, and my partner exited the other side, and cut on the other side of her.
Q. So he was cutting her off so she couldn’t get passed [sic] him?
A. I guess so.

Id., page 20.

The Fourth Amendment applies to all seizures of a person, including seizures that involve only a brief detention short of traditional arrest. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Commonwealth v. Brown, 388 Pa.Super. 187, 190, 565 A.2d 177, 178 (1989). Officer Lee and his partner exited their police vehicle, so positioning themselves that Martinez was “cut off”. Officer Lee then ordered Martinez to turn around, take her hands out of her jacket and put her hands on the car. At this moment, well before any alleged contraband had fallen to the ground, Martinez had been “seized” for Fourth Amendment purposes.

In Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968 (1987), we held that in order for a stop, or “seizure,” to be reasonable, and therefore legal under Terry v. Ohio, the police officer’s reasonable and articulable belief that criminal activity was afoot must be linked with his observation of suspicious or irregular behavior on behalf of the particular defendant stopped. 364 Pa.Super. at 609, 528 A.2d at 970. Mere presence near a high crime area or in the vicinity of a recently reported crime does not justify a Terry stop. Id. Conversely, an officer’s observation of irregular behavior without a concurrent reasonable belief that crime is afoot renders a stop unreasonable. 364 Pa.Super. at 609-10, 528 A.2d at 970.

What are the specific, articulable facts which would reasonably warrant a belief that criminal activity was afoot, when Officer Lee ordered Martinez to put her hands on the police vehicle? Martinez had walked quickly away from a street corner, at 12:20 A.M. She was holding her hands in the front of her coat and walking quickly up the street. There are no other articulable facts attributable to Martinez.

The suppression court, in concluding that the investigative stop was lawful, mixed together facts of events occurring both before and as a result o/ the stop. The court seemingly believed that Martinez brought the search and seizure upon herself by “drawing attention to herself.” The suppression court stated:

The issue here is whether the police officer had acted in a manner, which somehow violated the defendant’s constitutional rights. The officer did nothing wrong by approaching the defendant, as she walked rapidly away. She drew attention to herself in the crowd, and there would be nothing unusual about the defendant or her appearance at this time, then the Court may be inclined to say that the officer had no reason to act any further after that. The problem here was that the large bulge in her coat drew attention to her, and also, Lee decided to investigate for weapons, principally, because of the very nature of the neighborhood, and what occurs there.
At this time, by the defendant acting as she did and drawing attention to herself and carrying such a numerous amount of contraband as to undoubtedly create attention to herself, and draw attention to herself, that she invited what appears to be an investigatory stop, and what flowed from there, is letting go of the item, and letting it drop.
There is nothing that the officer physically did to force her to drop this item out of her pocket. Therefore, the Court will make the following conclusions of law: That Officer Lee acted with probable cause when he stopped the defendant for an investigative stop, believing and— and he legitimately believed that the defendant possessed-may have possessed a weapon, and he acted in a manner consistent with the constitutional rights of the defendant.
There was — for this reason the abandonment, and the dropping of the items by the defendant onto the ground was not forced by the officer, and therefore, the defendant’s motion to suppress is denied.

Suppression Transcript, supra, pages 30-32. (emphasis added).

The suppression court committed error in concluding that an officer’s belief that a person might be armed may serve as an additional articulable fact to justify the initial stop. The Terry frisk is justified only after there exist sufficient articulable facts to reasonably warrant a belief that criminal activity is afoot. Commonwealth v. Hicks, 434 Pa. 153, 158-59, 253 A.2d 276, 279 (1969). We are unaware of any caselaw which supports the suppression court’s apparent conclusion that where an individual “draws attention to one’s self”, an investigatory stop is justified. Here, the police officers were unaware of any “bulge” in Martinez’ coat until they had pursued her up Hutchinson Street. Supp.Transcript, pages 10, 18. The defendant was known to Officer Lee. Id., pages 10, 17.

If we limit our analysis to the facts known to Officer Lee prior to his ordering Martinez to place her hands on the hood of the police vehicle, we have only the fact that Martinez was seen talking with a group of people on a street corner at 12:20 A.M., she walked away quite rapidly after looking in the direction of an unmarked police vehicle, and her jacket appeared to have a “bulge” in it.

This case is quite similar on its facts to those presented in Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973). There, four police officers in an unmarked vehicle observed Jeffries walking along a public street. When Jeffries saw the officers, he quickened his pace. One officer left the vehicle and began to pursue Jeffries who then began to run. Before being overtaken, Jeffries threw a small package under a nearby automobile. The package was recovered and found to contain heroin. Our supreme court rejected the Commonwealth’s arguments that Jeffries’ flight supplied the necessary factual foundation for probable cause or, in the alternative, reasonable grounds to believe criminal activity was afoot under Terry v. Ohio. The court went on to hold that the evidence retrieved from under the automobile must be suppressed, due to the police officers’ unlawful and coercive activity, citing Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1978).

In this case, the police officers were not responding to a, radio broadcast reporting probable criminal activity in progress. Cf. Commonwealth v. Lagana, supra. There is nothing in the hearing transcript to support a finding that the officers reasonably could have believed Martinez was armed and dangerous, prior to their stopping her. On the contrary, Officer Lee testified to knowing the defendant quite well from prior contacts. We are left with Martinez’ flight from the street corner and the bulge in her jacket as the only articulable facts which validly could support a conclusion of criminal activity being afoot.

These facts are not enough. At the moment that Martinez was told to come towards the police officers, turn around and put her hands on the car, there was no basis to reasonably believe that Martinez had engaged in any unusual and suspicious conduct. Without that, one cannot reach the issue of whether the suspect is armed and dangerous. The coercive activity was unlawful. The evidence flowing from that unlawful conduct should have been suppressed.

We are constrained to vacate the judgment of sentence, reverse the order of the suppression court together with the verdict of guilty of June 1, 1989, and remand for a new trial.

Order reversed. New trial granted.

CERCONE, J. files a dissenting opinion.

CERCONE, Judge,

dissenting.

I respectfully dissent. Under the circumstances of this case, I would affirm the trial court’s decision which denied appellant’s motion to suppress evidence obtained incident to a search allegedly performed without probable cause.

The majority skirts several important facts that were brought out before the suppression court. First, appellant, Janet Martinez was known to the two policemen. Under ordinary circumstances, she would often approach them and converse with them. On the particular occasion in question, as soon as she spotted the two policemen, Ms. Martinez went in the opposite direction in an attempt to avoid them. Second, Officer Lee had been assigned to permanent detail and had made numerous drug arrests in the area. He observed a group of people congregating on a street corner in this high drug area. Although such activity would be innocent in and of itself, this specific street corner in question was personally known to the officer to be an area where drug transactions took place.

While people may congregate in public without violating any law, such conduct in this instance was also consistent with that of drag trafficking. See Commonwealth v. White, 358 Pa.Super. 120, 516 A.2d 1211 (1986) (wherein we held that the fact that a suspect’s activity may be consistent with innocent behavior does not alone make a detention and limited investigation illegal because reasonable suspicion standard is less stringent than probable cause standard and permits an investigatory stop when facts within officer’s knowledge and his reasonably drawn inferences support a fair suspicion that criminal activity may be afoot). Thus, it was reasonable for Officer Lee to approach Ms. Martinez to see whether a drag transaction was, in fact, occurring.

Upon the arrival of the uniformed police, the group scattered into different directions with Ms. Martinez scurrying north. Law enforcement officers may rely on their knowledge of the characteristics of the area as well as an attempt to evade police contact when determining that it is appropriate to stop a suspect and question him. Commonwealth v. Fiore, 281 Pa.Super. 1, 6-7, 421 A.2d 1116, 1119 (1980). See also Commonwealth v. Pine, 370 Pa.Super. 410, 536 A.2d 811 (1988) (wherein we held that police officer who saw suspect carrying a television set at 2:00 a.m. was entitled to make a temporary investigatory stop when the suspect had twice walked away upon seeing officer’s police car and officer knew that numerous burglaries had occurred in that area).

In the instant case, the police knew: (1) that this was a high drag trafficking area; (2) that the particular street corner in question was often the site of drug transactions; and (3) that Ms. Martinez usually approached and conversed with them as opposed to avoiding them. These facts gave the police sufficient reason to follow Ms. Martinez. As they pulled up alongside her, Officer Lee testified that he noticed a large bulge under Ms. Martinez’s jacket that she appeared to be holding by having her hands in her pockets. In an attempt to investigate further, Officer Lee asked Ms. Martinez to step up against the unmarked police car. Ms. Martinez bent her torso over the hood of the car in an apparent attempt to keep the bulge under her jacket. Upon asking her to step away from the car, Ms. Martinez dropped a plastic bag from under her jacket. The plastic bag contained numerous vials which appeared to contain a white chalky matter that the officers believed to be a controlled substance. Officer Lee then placed Ms. Martinez under arrest and proceeded to search further and found four more clear plastic bags, each containing numerous vials. It was later determined that there were one thousand vials, each containing cocaine. Thus, the culmination of all of the facts as they presented themselves to the police, justified the investigatory stop of Ms. Martinez. I would find that it was not until after the discovery of the cocaine that Ms. Martinez was arrested.

Thus, I would find that we cannot ascribe to a police officer, highly trained in the field of narcotics, complete ignorance of what is familiar to him and learned over a period of time about conduct and customary events. For this reason, I must respectfully dissent.


author: OLSZEWSKI, Judge:

text:
    588 A.2d 518
    COMMONWEALTH of Pennsylvania v. Andrew BOBOTAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1991.
    Filed March 6, 1991.

      William P. Carlucci, Williamsport, for appellant.

      Thomas A. Marino, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before OLSZEWSKI, BECK and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Lycoming County following appellant’s conviction by a jury of driving while under the influence of alcohol. Following his conviction, appellant filed post-verdict motions alleging that the trial court erred in denying appellant’s motion for a new trial, and challenging the sufficiency of the evidence to support the verdict with respect to the element of the offense that appellant was operating or in actual physical control of the movement of a motor vehicle. Appellant’s post-verdict motions were subsequently denied, and this appeal followed.

Two issues are presented for our determination: (1) whether the trial court erred in denying appellant’s motion for a mistrial (See n. 2, infra.)] and (2) whether the trial court erred in instructing the jury that appellant could be convicted for DUI if he was in actual physical control of the machinery of his motor vehicle. We find no error by the trial court and accordingly affirm the judgment of sentence.

The trial court gave the following summary of the facts from which the present case arose:

At about 12:30 a.m. on March 11,1989, an officer of the Montoursville Police Department was detailed to investigate a report that a small sports car, with engine revving, was parked in an alley in a downtown section of the Borough of Montoursville. When the officer arrived, he found a small green Porsche -with engine idling rapidly, parked in an alleyway near Broad Street, the main street of the Borough. The vehicle was facing Broad Street. The defendant was alone in the vehicle and was behind the wheel. The defendant told the officer he had been drinking with friends and, while driving home, did not feel well and thought it best that he pull over for a short time before continuing on.

Trial court opinion at 1.

Appellant first argues that the trial court erred in denying appellant’s motion for a mistrial following a statement by the prosecuting attorney during her closing argument. The record indicates that the arresting officer testified that when he had arrested appellant at the scene, appellant had agreed to speak with the officer and stated to him that he had been drinking with friends and, while driving home, did not feel well and thought it best that he stop for a short time before continuing home. (N.T. at p. 18.) At trial, however, appellant gave an entirely different version of the facts. Appellant testified that he had arrived at the location approximately one hour before the police officer. He stated that he had been waiting for a signal from his girlfriend, who lived in an apartment a short distance away, indicating permission to enter her home. Appellant testified that he had been waiting quite a while, so he kept the engine running to stay warm. He claimed he had done no drinking before stopping at the scene, but that he had consumed a half bottle of champagne while waiting for the signal from his girlfriend. He stated that when the police arrived, he quickly hid the champagne. Appellant testified that he did not tell the officer the truth to save embarrassment to his girlfriend. (N.T. at p. 38-44.)

In her closing argument, the assistant district attorney argued that appellant’s testimony was incredible because appellant had given the police officer at the scene a different version of the incident and had not gone to the police prior to trial to explain his subsequent version of the incident. At the conclusion of this closing argument, the defense attorney made a motion for mistrial. The trial court denied the motion, but gave the following cautionary instruction:

There was in the District Attorney’s argument, there was a statement to the effect that the defendant had never come forward to give the version of the testimony that he gave from the witness stand. To the extent the District Attorney was commenting upon the answers and explanations that the defendant gave on the night in question to the officer, that’s an appropriate comment on the evidence. It’s a matter for you to consider along with the Defense Counsel’s argument. However, to the extent that it implies there was some duty on the part of the defendant in a sense then to make some statements to the police or come forward and explain himself or to prove something, then that would fly in the face of the law which says the burden is not on the defense to prove innocence or prove anything, the burden is on the Commonwealth to prove its case beyond a reasonable doubt. So there is no burden on the defendant to come forward with anything. Case is here. Commonwealth has the burden of proving it beyond a reasonable doubt.

Appellant now argues that the trial court erred in permitting the prosecutor to impeach appellant’s trial testimony by referring to his silence. Appellant alleges that this violated his privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution. See, Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978). The record indicates that appellant was not silent at the time of his arrest, however; but instead, proffered an explanation for his presence at the scene. Appellant therefore never invoked his Fifth Amendment privilege against self-incrimination.

In Commonwealth v. Beavers, 492 Pa. 522, 424 A.2d 1313 (1981), our Supreme Court, in deciding a factually similar case, held that a defendant who, having been advised of his Miranda rights, freely speaks to authorities and never fails to respond to a question, cannot assert his Fifth Amendment privilege. Id., 492 Pa. at 532, 424 A.2d at 1318. In the present case, appellant did not remain silent at the time of his arrest, but instead, made an explanatory statement. Appellant never attempted to invoke his Fifth Amendment privilege. In accordance with Beavers, supra, appellant’s Fifth Amendment claim must fail.

Additionally, we reject appellant’s claim that his Fifth Amendment privilege was violated when the district attorney commented, during closing argument, upon appellant’s failure to contact the police prior to trial to explain the real reason he was present in the alley. We are in agreement with the trial court that any misinterpretation that the jury may have given such comment, with respect to the Commonwealth’s burden of proof, was effectively cured by the trial court’s cautionary jury instruction.

Finally, appellant contends that the trial court erred in charging the jury that appellant could be convicted for DUI if he was in actual physical control of the machinery of his motor vehicle. Appellant concedes that the instruction is consistent with this Court’s latest pronouncement on the subject; however, appellant argues that the jury instruction, as well as this Court’s analysis, is flatly inconsistent with the plain language of 75 Pa.C.S.A. § 8731. Section 3731 provides in pertinent part:

(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
* * * * « *
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

In the present case, appellant argues, without citing any authority, that for one to be convicted of driving under the influence of alcohol, the motor vehicle must have been in motion. Appellant interprets the language under subsection (a), “actual physical control of the movement of any vehicle,” as requiring actual movement of the vehicle. This argument is entirely contrary to existing case authority and the legislative history and intent of 75 Pa.C.S.A. § 3731(a).

From 1959 until 1976, the Pennsylvania Driving Under the Influence Statute, then codified at 75 P.S. § 1037, provided that “[i]t shall be unlawful for any person to operate a motor vehicle ... while under the influence of intoxicating liquor ...” (emphasis added). In Commonwealth v. Kallus, 212 Pa.Super. 504, 243 A.2d 483 (1968), this Court interpreted the term “operate” to require evidence of actual physical control of either the machinery of the motor vehicle or of the management of the movement of the vehicle itself, but not evidence that the vehicle was in motion. Id., 212 Pa.Superior Ct. 507, 243 A.2d at 485.

In 1976, this section was repealed by 75 Pa.C.S.A. § 3731, which provided in pertinent part, that “[a] person shall not drive any vehicle while ... under the influence of alcohol ...” (emphasis added). In Commonwealth v. Brown, 268 Pa.Super. 206, 407 A.2d 1318 (1979), a panel of this Court construed this change as a legislative intent to limit the scope of the statute. This Court reasoned that since the term “operate” is broader than “drive”, the legislature intended to confine violations of the statute to those instances where the Commonwealth has presented evidence that the entire vehicle had been in motion. Id., 268 Pa.Superior Ct. 208, 407 A.2d at 1320.

Section 3731 was amended in 1982 to the current version, in an attempt to broaden the scope of section 3731. Subsection (a) of section 3731, as stated above, provides that, “[a] person shall not drive, operate, or be in actual physical control of the movement of any vehicle while ... under the influence of alcohol____” In Commonwealth v. Crum, 362 Pa.Super. 110, 523 A.2d 799 (1987), a panel of this Court was asked to decide whether sufficient evidence existed to prove that appellant either drove, operated, or was in actual physical control of the movement of a vehicle. In Crum, supra, appellant was found asleep, under the influence of alcohol and slumped across the front seat of a car, with the motor running and the lights on. This Court held these facts sufficient to support an inference that appellant was in control of either the machinery of the motor vehicle or the management of the motor vehicle itself, despite the fact that appellant’s vehicle was not observed in motion. Id., 362 Pa.Superior Ct. 115, 523 A.2d at 802. See also, Commonwealth v. Farner, 90 Pa.Commw. 201, 206, 494 A.2d 513, 516 (1985).

In accordance with the legislative history of Pennsylvania’s driving under the influence legislation and this Court’s interpretation of the present state of the law in Crum, supra, there is no requirement that one’s vehicle be in motion to be convicted under section 3731. We, therefore, reject appellant’s unsupported claim to the contrary. For the above reasons, we affirm the judgment of sentence.

      . 75 Pa.C.S.A. § 3731(a)(1) and (a)(4).

      . Appellant alleges trial court error in failing to declare a mistrial due to defense counsel’s alleged comment upon appellant’s exercise of his right to remain silent.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: CIRILLO, Judge:

text:
    588 A.2d 522
    COMMONWEALTH of Pennsylvania v. Roger BUEHL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 14, 1991.
    Filed March 13, 1991.

      Abraham Leizerowski, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   CIRILLO, Judge:

Roger Buehl appeals from an order entered on March 9, 1990, denying without a hearing his petition for relief under the Post-Conviction Hearing Act (“PCHA”). 42 Pa.C.S. § 9541 et seq. We affirm.

On February 1, 1983, Buehl pled guilty to robbery and carrying a firearm without a license. See 18 Pa.C,S. §§ 3701, 6106. On March 14, 1983, Buehl was sentenced to a term of imprisonment of seven and one-half to twenty years for robbery and a consecutive term of two and one-half to five years for the charge of carrying a firearm without a license. Buehl did not file a motion to withdraw the guilty plea or modify the sentence, nor did he take an appeal.

On December 1, 1987, Buehl filed a pro se petition for relief under the PCHA. Thereafter, counsel was appointed and an amended petition for relief was filed alleging that his former counsel’s ineffectiveness resulted in the entry of an invalid plea. Specifically, Buehl maintained that because he was induced to confess to the instant crimes by Montgomery County officials he had no choice but to plead guilty in Philadelphia County. Buehl contended that he should have been advised that this confession could be used against him in the Philadelphia proceedings.

Following argument, Buehl’s petition was dismissed without an evidentiary hearing. In its opinion, the PCHA court stated that although Buehl maintained that there were errors in the guilty plea proceeding, Buehl did not substantiate these allegations nor did he provide the court with the transcript of the challenged proceeding. The PCHA court concluded that Buehl’s failure to support his claims and his failure to supply the relevant transcripts were fatal to his petition.

On appeal Buehl advances the following issues:

I. The trial court erred in upholding a motion to dismiss based upon lack of presentation of the notes of testimony when the lack of such notes was clearly due to the failure of court administration to supply them.
II. Mere delay in filing a petition should not be grounds for upholding a motion to dismiss a PCHA petition.
III. A PCHA petition may not be dismissed on the grounds that a faulty guilty plea must be appealed to the trial court if the cause for fault i[s] ineffective assistance of counsel.

Initially, Buehl argues that it was error for the trial court to dismiss his post-conviction petition without a hearing because he did not supply the relevant notes of testimony. Buehl maintains that although he attempted to obtain the notes of testimony, the trial court failed to produce them. Consequently, Buehl requests that we order an evidentiary hearing to be held to take testimony on what actually occurred at the guilty plea proceeding.

Buehl next argues that it was error for the trial court to dismiss his PCHA petition without a hearing simply because he waited over four years to mount any challenge to his plea of guilty. Lastly, Buehl claims that it was trial counsel ineffectiveness that “created the damaged guilty plea ...,” and that the trial court should not have dismissed the claim because Buehl failed to file a motion to withdraw the guilty plea. See Pa.R.Crim.P. 321. In support of his claim of trial counsel ineffectiveness, Buehl basically reiterates the arguments advanced in his PCHA petition.

We feel that Buehl’s three issues can be addressed simultaneously. Despite his protestations concerning the PCHA court’s treatment of his post-conviction petition, Buehl, by alleging trial counsel ineffectiveness, is essentially attempting to withdraw Ms guilty plea after sentence has been imposed.

The standard for granting a withdrawal of a guilty plea following sentencing is that of “manifest injustice.” That is, a defendant is entitled to withdraw a plea of guilty as a matter of right where the court finds that it was not voluntarily and intelligently made____ However, the burden is on the petitioner to prove involuntariness.

Commonwealth v. Phillips, 374 Pa.Super. 219, 222, 542 A.2d 575, 576 (1988) (citations omitted).

To prevail on a claim of ineffectiveness, an appellant must first prove that the underlying claim is of arguable merit. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989). If so, the appellant must next prove that the particular course chosen by counsel could not have had any reasonable basis designed to effectuate the client’s interest. Id Finally, the appellant must demonstrate how the ineffectiveness prejudiced him by illustrating that counsel’s conduct had an adverse effect on the outcome of the proceedings. Id; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). More specifically, counsel will be found ineffective in connection with the entry of guilty plea only where the alleged ineffectiveness “caused the defendant to enter an involuntary or unknowing plea.” Commonwealth v. Klinger, 323 Pa.Super. 181, 197, 470 A.2d 540, 548 (1988) (emphasis original).

Here, Buehl has not provided this court with the transcripts of the guilty plea proceeding nor has he provided us with any record to support his claims of ineffectiveness. We remind Buehl that it is the appellant’s responsibility to supply this court with a complete record for purposes of appeal. Pa.R.A.P. 1911; Commonwealth v. Hawk, 386 Pa.Super. 183, 562 A.2d 858 (1989) (Cirillo, P.J., dissenting); Commonwealth v. Williams, 357 Pa.Super. 462, 466, 516 A.2d 352, 354 (1986). See also 1 Pennsylvania Appellate Practice § 1911:2 (1986). Further, an appellate court may only consider facts which have been duly certified in the record on appeal. Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974); 1 Pennsylvania Appellate Practice § 1921:1 (1986).

Moreover, Pennsylvania Rule of Appellate Procedure 1923 provides that if a transcript is unavailable, the appellant may prepare a statement of the proceedings from the best available means, including his or her recollection. Pa. R.A.P. 1923. The statement may then be served upon the appellee who, within ten days, may raise objections or propose changes to the statement. Id. Thereafter, the statement must be submitted to the relevant trial court for approval and the statement, as approved, will then be included in the record on appeal. Id. Consequently, even though Buehl was allegedly unable to obtain the notes of testimony from the guilty plea proceeding, he, pursuant to Pa.R.A.P. 1923, could have provided this court with a statement in absence of the transcript. See Hawk, supra (Cirillo, P.J., dissenting); 1 Pennsylvania Appellate Practice § 1923.1 (1986).

Without any official record to buttress Buehl’s unsupported allegations of trial counsel ineffectiveness, we cannot conclude that the PCHA court erred in dismissing Buehl’s post-conviction petition without a hearing. 42 Pa. C.S. § 9549(b); Cf. Commonwealth v. Early, 377 Pa.Super. 219, 228, 546 A.2d 1236, 1240 (1988) (where appellant’s claims of ineffectiveness were meritless, the trial court did not err in failing to grant an evidentiary hearing).

Also, contrary to Buehl’s assertions, the PCHA court did not dismiss his post-conviction petition because it was filed more than four years after sentence was imposed and because Buehl did not originally file a petition to withdraw his guilty plea. See Pa.R.Crim.P. 321. Although the PCHA court referred to Buehl’s delay in challenging his guilty plea, it correctly stated that such delay was not dispositive of his claim. See Commonwealth v. Taylor, 348 Pa.Super. 256, 502 A.2d 195 (1985). Finally, because Buehl’s claims of ineffectiveness in connection with the entry of his guilty plea are not supported in the record, we cannot conclude that the alleged ineffectiveness caused Buehl to enter into an involuntary or unknowing plea. Phillips, supra; Klinger, supra.

Order affirmed.

      . The PCHA was modified in part, repealed, and renamed the Post Conviction Relief Act (“PCRA"). 42 Pa.C.S. §§ 9541-9546. The PCRA applies to all actions for collateral relief instituted after its effective date of April 13, 1988. Since Buehl’s petition for collateral relief was instituted on December 1, 1987, it is governed by the provisions of the PCHA. Commonwealth v. Lawson, 519 Pa. 504, 506 n. 1, 549 A.2d 107, 108 n. 1 (1988).

      . When Buehl confessed to the Philadelphia crimes he was being prosecuted for murder in Montgomery County.

      . Pennsylvania Rule of Criminal Procedure 321 provides in pertinent part:
      (a) A motion challenging the validity of a guilty plea, or the denial of a motion to withdraw a guilty plea shall be in writing and shall be filed with the trial court within ten (10) days after imposition of sentence.
      Pa.R.Crim.P. 321(a).

      . We note that since Buehl is alleging that his guilty plea was unlawfully induced by counsel's ineffectiveness, he has not waived this claim by failing to file a motion to withdraw his guilty plea. Commonwealth Lantzy, 284 Pa.Super. 192, 425 A.2d 768 (1981). See Pa.R.Crim.P. 321.

      . Pennsylvania Rule of Appellate Procedure 1911 provides in relevant part:
      (a) General Rule. The appellant shall order any transcript required under this chapter in the manner and make any necessary payment or deposit therefor in the amount and within the time prescribed by Rules 5000.1 et seq. of the Pennsylvania Rules of Judicial Administration (court reporters).
      Pa.R.A.P. 1911(a).

      . Rule 1923. Statement in Absence of Transcript
      If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.
      Pa.R.A.P. 1923.

      . Rule 1923’s purpose is to provide reviewing courts with an "equivalent picture” of the proceedings when there is not a transcription. See Smith v. Mason, 328 Pa.Super. 314, 316 n. 1, 476 A.2d 1347, 1348 n. 1 (1984); Nemeth v. Nemeth, 306 Pa.Super. 47, 56, 451 A.2d 1384, 1389 (1982). See also Hawk, supra (Cirillo, P.J., dissenting).


author: KELLY, Judge:

text:
    588 A.2d 525
    COMMONWEALTH of Pennsylvania, v. Robert DORLER, Sr., Appellee. Appeal of TIMES PUBLISHING COMPANY, INC., and Keystone Broadcasting Corp. d/b/a WSEE-TV. Appeal of The JET BROADCASTING CO., INC.
    Superior Court of Pennsylvania.
    Argued March 29, 1990.
    Filed March 13, 1991.

      Craig A. Markhan, Erie, for appellant (at 1456) and for participating party (at 1457).
    Peter J. Belott, Jr., Erie, for appellant (at 1457) and for participating party (at 1456).
    John H. Moore, Erie, for appellee.
    Before TAMILIA, KELLY and CERCOME, JJ.
   KELLY, Judge:

In this case media representatives appeal from an order limiting press access in a criminal trial to prevent potential jurors from exposure to potentially prejudicial pre-trial press coverage of a suppression hearing. We find the appeals moot and dismiss.

The relevant factual and procedural history may be summarized as follows. Robert Dorler, Sr. was arrested and charged with criminal homicide and conspiracy with respect to an alleged contract killing. The defendant moved to suppress certain evidence and to close the suppression hearing. The defendant’s motion for closure was joined by the Commonwealth.

On September 22, 1989, a hearing was held to determine whether the suppression hearing should be closed to prevent prejudicial pre-trial publicity. Intervenors/appellants (“appellants”), The Jet Broadcasting Co., Times Publishing Co. and Keystone Broadcasting Co., were deemed to have standing and actively opposed the motion to close the suppression hearing. The trial court entertained argument from both the defendant and appellants, and thereafter entered a limited closure order which denied public access to the suppression hearing and precluded photography in the court environs during the proceedings.

Appellants immediately sought a stay of the closure order. The trial court denied the motion for a stay of the closure order and thereafter conducted the closed suppression hearing as scheduled.

Three days later, on September 25, 1989, appellants filed the instant appeal of the trial court’s closure order with this Court. Two days after that, on September 27, 1989, appellants filed a motion with this Court to stay the remainder of the proceedings in the trial court. That stay was denied by this Court. Subsequently, the suppression motion was denied by the trial court, and the full transcript of that hearing was disclosed to the public following the selection of a jury. A jury thereafter found the defendant guilty of murder.

In this appeal, appellants raise essentially two issues for our consideration: 1) whether the trial court erred in closing the suppression hearing; and 2) whether the trial court erred in precluding photography in the court environs during the trial. We do not reach the merit of these issues, however, because we reject appellants’ underlying contention that this appeal is not moot.

As this Court has previously recognized,

“[C]ases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten under way — changes in the facts or in the law — which allegedly deprive the litigant of the necessary stake in the outcome....” In re Gross, 476 Pa. 203, 209, 382 A.2d 116, 119 (1978), quoting G. Gunther, Constitutional Law 1578 (9th ed. 1975). The appellate courts of this Commonwealth will not decide moot or abstract questions, In re Gross, supra; Ridley Park Shopping Center, Inc. v. Sun Ray Drug Co., 407 Pa. 230, 180 A.2d 1 (1962); Wortex Mills v. Textile Workers, 369 Pa. 359, 85 A.2d 851 (1952)[.]

Graziano Construction Co., Inc. v. Lee, 298 Pa.Super. 311, 316, 444 A.2d 1190, 1193 (1982). However, an appeal is not moot if capable of repetition, yet evading review. See Gannett Co. v. DePasquale, 443 U.S. 368, 377, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608, 620 (1979); Nebraska Press Association v. Stuart, 427 U.S. 539, 546-47, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683, 690 (1976); Devlin v. Osser, 434 Pa. 408, 254 A.2d 303 (1969).

Unquestionably, the questions presented in this appeal are moot. The precise relief appellants seek instantly, i.e., overturning the closure order, cannot be granted at this point. The closed suppression hearing has been conducted, the trial is now complete, and the effect of the closure order cannot now be undone.

Moreover, in light of the specific mode of review provided for such appeals in Pennsylvania, the issues presented by appellants in the instant appeal are not capable of repetition yet evading review. Here, appellants successfully intervened and unsuccessfully argued to the trial court that the suppression hearing should remain open. After that, appellants requested the trial court to stay only the closure order. N.T. 9/22/89 at 26. When that request was denied, appellants sought no further relief in the trial court but instead waited until after the suppression hearing was completed to ask this Court for a stay of the remainder of the proceedings. Other relief was available.

In Capital Cities Media v. Toole, 506 Pa. 12, 483 A.2d 1339 (1984), our Supreme Court unanimously explained:

We recognize the legitimacy and importance of the interest of the news media in judicial proceedings. The media’s right of expression must necessarily include the right to be heard when that interest is adversely affected. In Pennsylvania there is a procedure for obtaining expedited review which affords complete relief where an alleged abridgment of the rights of the media is at issue.
The first step in this procedure would have been for the applicants to petition the trial court to intervene for the purpose of challenging the legality of the pre-trial orders. Such an action is in accordance with our well-established and strongly held view that it is essential to meaningful judicial review that objections should be addressed to the court of first instance to permit that court to evaluate such claims and to have the opportunity to correct its own errors. This practice creates a record from which the grounds of the lower court’s determination may be readily discerned in the event review by an appellate court becomes necessary. An order denying leave to intervene in these sensitive circumstances is immediately appeal-able.
If the applicants had successfully intervened, they would have been in a position to seek a stay from the trial court pending an appeal in the event relief was denied. See Pa.R.A.P. 1732(a). The denial of such temporary relief would be subject to immediate review. See Pa.R.A.P. 1732.
The course open to a media petitioner upon the denial of relief in the trial court is exemplified in Commonwealth v. Hayes, [489 Pa. 419, 414 A.2d 318 (1980), cert. denied 449 U.S. 992, 101 S.Ct. 528, 66 L.Ed.2d 289 (1980).] There, the petitioners, having unsuccessfully pursued the avenues described above, asked this Court to exercise its plenary jurisdiction over the ongoing criminal prosecution and stay proceedings pending our review. Both requests were granted and the petitioners ultimately prevailed. It is important to stress that such a procedure is available to obtain a prompt, direct adjudication of a constitutional claim by the state’s highest court, bypassing the intermediate appellate court which ordinarily has jurisdiction of the vast majority of appeals from orders of the court of common pleas.
We are sensitive to the public importance of claims involving the right of the press to report on judicial proceedings and are aware of the danger that relegation of such claims to the ordinary avenues of appeal may effectively prevent meaningful review and the vindication of the rights asserted. Nevertheless, effective review requires the observance of orderly procedures designed to fully ventilate the issues. In this respect the remedy outlined above is not only adequate but highly preferable.

483 A.2d at 1343-44. (Emphasis added).

As the foregoing plainly establishes, media appeals in press access eases need not and indeed ought not wait until the issues raised are rendered merely hypothetical and the ruling sought wholly advisory. A procedure exists in Pennsylvania which affords parties seeking review of such orders the opportunity to do so before the claims become moot.

Instantly, after the closure order had been entered by the trial court, appellants did not avail themselves of the opportunity envisioned in Capital Cities, supra. Once appellants had successfully intervened, appellants could have requested the trial court to stay the proceedings. See id. (citing Pa.R.A.P. 1732(a)). Had the trial court granted a request to stay the proceedings, the avenue of relief pursued in Commonwealth v. Hayes, supra, in which the intervenors brought their claim directly to the Supreme Court, would have been available. If the trial court had denied a request to stay the proceedings, appellants could have sought an emergency appeal of the refusal to grant such temporary relief in this Court under Pa.R.A.P. 1732(a). See Capital Cities, supra, 483 A.2d at 1343 (citing Pa.R.A.P. 1732). In the unlikely event that the trial court refused to delay the proceedings long enough to request an emergency appeal in this Court, the issues appellants seek to have reviewed instantly would have been truly capable of evading review.

We conclude, therefore, that appellants failure to ask the trial court to stay the proceedings before the order sought to be reviewed ceased to have any practical effect rendered any subsequent challenge to the order moot. See Graziano Construction Co., Inc. v. Lee, supra; Commonwealth v. One 1978 Lincoln Mark V, 52 Pa.Cmwlth. 353, 415 A.2d 1000 (1980). A method to seek review of the instant claim before it became academic existed, and appellants did not avail themselves of it. Under these circumstances, we find the instant appeal to be moot and decline to address the issues belatedly raised herein.

Appeals dismissed.

TAMILIA, J., concurs in the result.

      . We note that appellants’ decision to request only a stay of the closure order is somewhat perplexing. To have granted a stay of only the closure order would have been the equivalent of a summary reversal, since it would have had the effect of requiring the hearing to be held in public. See United States v. Cianfrani, 573 F.2d 835, 846 (3d Cir.1978). It is not surprising, therefore, that the trial court failed to grant this request.

        . We note that appellants’ request that this Court stay the proceedings was both improper and untimely. First, it is clear that a request for a stay in the proceedings must originate in the trial court, not an appellate court. Pa.R.A.P. 1732(a). Any initial request in this Court to stay the proceedings was therefore inappropriate. Moreover, because appellants waited to ask this Court to stay the proceedings until five days after the suppression hearing had been conducted, only that portion of the closure order which affected post-suppression hearing proceedings could have been delayed pending our review. Any perceived error in our denial of the improper request for a stay could have thereafter been addressed to the Supreme Court under Pa.R.A.P. 3315. Appellants’ failure to request a stay of the proceedings in the trial court or to seek any subsequent review in the Supreme Court, therefore, effectively foreclosed any opportunity to have any portion of the closure order reviewed before the order was to be a fait accompli.