author: ROWLEY, Judge:

text:
    586 A.2d 952
    Leonard GORZELSKY and Kathy Gorzelsky, Husband and Wife v. Edward C. LECKEY, Administrator of the Estate of Mildred E. Leckey, Deceased, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1990.
    Filed Feb. 8, 1991.

      Edward C. Leckey, Pittsburgh, for appellant.

      Michael W. Sahlaney, Johnstown, for appellees.
    Before ROWLEY, WIEAND and FORD ELLIOTT, JJ.
   ROWLEY, Judge:

On May 13, 1986, Leonard and Kathy Gorzelsky entered into a written contract (“Agreement”) to purchase real estate situated at 2325 Shannon Way, Westmont Borough in Cambria County, (“Shannon Way Property”) from Edward C. Leckey, Administrator of the Estate of Mildred E. Leckey, Deceased. The Shannon Way Property was only part of the Leckey estate on Shannon Way. Therefore, approval of a subdivision was required before the Shannon Way Property could be conveyed. The Agreement contained the following relevant provisions:

16. Modified Time of Essence: If full performance of this Agreement is not completed by [July 31, 1986], either party shall have the right after that date to declare time to be of the essence of this Agreement by giving written notice to the other party. Such notice shall contain a declaration that time is of the essence and shall fix the time, date and place of final settlement, which date may not be sooner than fifteen (15) days nor later than thirty (30) days following the effective date of giving such notice.
* * * * * *
24(b) This Agreement is contingent upon Buyer’s ability to obtain conventional mortgage financing in an amount no less than $81,450.00____ Buyer shall provide Seller with a copy of any Commitment within five (5) days of receipt. If Buyer shall not obtain a Commitment for such a mortgage within thirty (30) days after Buyer’s acceptance of this Agreement, this Agreement shall be void and Buyer’s Earnest Money shall be returned with interest earned thereon.
* * * * * *
24(c) Seller shall take such action as shall be required, including field survey and placement of monuments, to obtain approval of a Final Subdivision Plan, by Westmont Borough for the property of Seller, which Seller shall record.
25 [A]ny notices between the parties shall be in writing and may ... be mailed by certified or registered mail____ If mailed, such notice shall be deemed effectively given as of the second business day after the date of posting.

In a letter dated June 19, 1986, buyers notified seller that their mortgage had been approved. However, buyers did not enclose a copy of the mortgage commitment with the letter. On June 30,1986, buyers entered into an agreement to sell their current residence. Pursuant to this agreement, they were obligated to deliver possession of their current residence on or before August 20, 1986. On July 22, 1986, seller submitted his subdivision plan to the Westmont Borough Planning Commission. However, the planning commission refused to act on it without prior review by the County Planning Commission. On July 25, 1986, seller telephoned buyers to notify them of this problem, and buyers told seller that they had sold their current residence and intended to close the sale on August 10, 1986.

In a letter dated July 28, 1986, buyers told seller that buyers would be ready to settle on July 31, 1986, pursuant to the Agreement. Seller told buyers that he would be unable to close at that time. In a letter dated July 31,1986, buyers declared time to be of the essence and scheduled a final settlement for August 15, 1986. The letter also informed seller that buyers were being represented by new counsel. Buyers, buyers’ counsel, and seller discussed the possibility of seller leasing the Shannon Way Property to buyers while the parties were waiting for the sale to close. However, buyers decided to lease other premises instead. On August 26, 1986, seller obtained preliminary approval of his subdivision plan form the Westmont Borough Planning Commission. On September 9, 1986, seller gave buyers notice that time was of the essence and that the closing would be held on September 26, 1986. On that date, seller agreed to close in escrow with buyers’ counsel acting as the settlement officer, and seller delivered the deed to buyers’ counsel by certified mail.

The sale was finally closed on October 7, 1986, and buyers took possession of the property. The Westmont Borough Planning Commission gave final approval of the subdivision plan on October 14, 1986. During the period of August 20, 1986, when they left their former residence, through October 7, 1986, when they took possession of the Shannon Way Property, buyers incurred the following expenses: $39.40 to advertise for a place to lease; $922.00 to rent the leased premises through the end of October; $61.50 to install a phone in the leased premises; $390.00 to move from their former residence to the leased premises; and $200 in additional attorneys fees.

Buyers sued seller for damages arising from the delay in delivering possession of the Shannon Way Property. Buyers also sued seller for the cost of removing a wood pile from the property. The matter proceeded to common law arbitration. The arbitrators awarded buyers $650.00 for the removal of the wood pile. Seller appealed to the Court of Common Pleas and filed a motion for partial summary judgment with respect to the cost of removing the wood. The Court of Common Pleas denied this motion but ordered buyers to delete the paragraphs concerning the woodpile from their complaint.

Following a trial without a jury, the trial court found in favor of buyers and awarded them $482.90 for their advertising, moving and telephone installation expenses as damages incurred due to seller’s breach. The trial court refused to award buyers their attorney’s fees, noting that attorney’s fees are generally not recoverable for a breach of contract action. The trial court also refused to award buyers their rental expenses for the leased premises, but the court concluded: “[Wjhile plaintiffs are not entitled to the expenses incurred in renting alternative housing, they are entitled to the fair rental value of the property on Shannon Way less interest on the purchase price____” (Trial Court Opinion 10/19/89 at 10, 11). The fair rental value less interest on the purchase price totalled $475.54. Thus the total damage award was $958.44. Judgment was entered on the verdict, whereupon appellant brought the instant appeal and requests a judgment n.o.v..

In reviewing the trial court’s denial of a motion for judgment n.o.v., “the sole duty of the appellate court is to decide whether there was sufficient competent evidence to sustain the verdict....” McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982). See also 10 Stand.Pa.Prac.2d, Judgment Notwithstanding Verdict §§ 64:3-64:6. We consider the evidence and all reasonable inferences drawn therefrom in the light most favorable to appellees, the verdict winners in this case. Kearns v. Clark, 343 Pa.Super. 30, 34, 493 A.2d 1358, 1360 (1985) (citations omitted). “A motion for judgment n.o.v. can properly be granted only when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case.” Id., 343 Pa.Superior Ct. at 35, 493 A.2d at 1358 (citations omitted). Having carefully reviewed the record and considered the arguments presented, we affirm.

Appellant first argues that the trial court erred in sua sponte amending appellees’ complaint “to assert a new basis for recovery after trial of the case.” (Appellant’s Brief, at 22). However, the trial court did not amend appellees’ complaint to assert a new theory of recovery. Rather, the trial court awarded appellees a measure of damages not specified in their complaint. Appellees’ theory of recovery was and continues to be breach of contract due to delay in delivery of possession. At trial, appellees sought to recover the rental value of the leased premises. The trial court noted that the proper measure of damages was not the rental value of the leased premises but rather the rental value of the property which appellees were buying from appellant. Sladkin v. Greene, 359 Pa. 528, 530, 59 A.2d 105, 107 (1948). The trial court thus correctly awarded appellees damages based on the fair rental value minus the interest on the purchase price of the Shannon Way Property.

Appellant next argues that appellees failed to mitigate damages and therefore cannot recover moving, advertising or telephone installation expenses. Appellant apparently is contending that, because appellees did not accept appellant’s offer that appellees lease the Shannon Way Property for $750 a month (the amount of their mortgage payments), appellees failed to mitigate their damages. This argument is without merit. When appellees relinquished possession of their former residence, they had no way of knowing when or even if their agreement with appellant would close. Although appellees had a duty to mitigate their damages, Unit Vending Corp. v. Tobin Enterprises, 194 Pa.Super. 470, 168 A.2d 750 (1961), their duty to mitigate did not mandate that they pay appellant $750 per month to lease the Shannon Way Property. The trial court correctly concluded that appellees “went out and obtained alternative housing at a rent amount less than that included in [appellant’s] proposal. The Court is satisfied [appellees] fulfilled their duty to mitigate damages.” (Trial Court Opinion 10/19/89 at 9). The trial court further correctly held that appellees’ moving, telephone installation, and advertising expenses were natural and consequential damages of appellant’s breach. Emerman v. Baldwin, 186 Pa.Super. 561, 142 A.2d 440 (1958). (Trial Court Opinion 10/19/89 at 10).

Appellant next argues that appellees, themselves, caused the delay in delivery of possession because they failed to obtain a mortgage commitment within 30 days after signing the Agreement and failed to provide appellant with a copy of the commitment within 5 days after its receipt. (Agreement 5/13/86 at § 24(b)). Instead, appellees notified appellant that their mortgage had been approved in a letter dated June 19, 1986, and which appellant received on June 21, 1986. Further, appellees did not provide appellant with a copy of the mortgage commitment. Appellant contends that appellees’ failure to timely obtain and send the mortgage commitment to appellant delayed appellant’s submission of a subdivision plan to the planning commission and thus caused the delay in delivery of possession. At the time appellees obtained their mortgage approval, time was not of the essence. “[WJhere time is not of the essence, the mere failure to perform on the date mentioned in a contract is not per se a breach which wholly destroys the contract.” Bogojavlensky v. Logan, 181 Pa. Super. 312, 319, 124 A.2d 412, 416 (1956). See also, Kalina v. Eckert, 345 Pa.Super. 220, 497 A.2d 1384 (1985) (When purchaser obtains timely assurance and notifies vendor that financing is available, vendor is not relieved of his duty to settle merely because bank failed to issue mortgage commitment). Therefore, appellant cannot rely on appellees’ two day delay in notifying him of their mortgage approval to excuse his own two month delay in delivery of possession.

Appellant next argues that his duty to deliver possession on July 31, 1986, was suspended due to temporary impracticability. Citing the Restatement (Second) of Contracts § 264, appellant contends that, by failing to finally approve the subdivision plan by July 31, 1986, the planning commission, which is a governmental body, temporarily rendered appellant’s duty to deliver possession impracticable and therefore the duty was suspended. Section 264 is inapplicable in the instant case, for § 264 applies where:

[I]f supervening governmental action prohibits a performance or imposes requirements that make it impracticable, the duty to render that performance is discharged, subject to the qualifications stated in § 261. The fact that it is still possible for a party to perform if he is willing to break the law and risk the consequences does not bar him from claiming discharge. The rule stated in this Section does not apply if the language or the circumstances indicate the contrary.

Restatement (Second) of Contracts § 264, comment a. In the instant case, it was appellant’s own delay in seeking planning commission approval rather than any supervening governmental regulation which caused the delay in delivery of possession. “We will not allow a party’s own nonfeasance to defeat his contractual obligations.” Messina v. Silberstein, 364 Pa.Super. 586, 591, 528 A.2d 959, 961 (1987), alloc. denied, 518 Pa. 619, 541 A.2d 746 (1988).

In Messina, the Pennsylvania Superior Court held that vendors could not avoid their duty to specifically perform a contract for the sale of land based on an alleged violation of the borough code provision which provided:

“It shall be unlawful for the owner of any land in the Borough to subdivide the same into two (2) or more lots or parcels unless and until a plan thereof shall have been prepared by a registered professional engineer or survey- or, submitted to and approved in writing.”

Messina, 364 Pa.Super. at 590, 528 A.2d at 960. The vendors in Messina argued that because subdivision approval had not been obtained, the sale to the purchasers would be illegal. Therefore, the vendors refused to perform. The Court responded:

The instant sale is not necessarily illegal. It is only unlawful if the seller does not comply with the Borough Code. We will not allow a seller to avoid an otherwise legal transaction because his own failure to act is unlawful.

Id., 364 Pa.Superior Ct. at 591, 528 A.2d at 961. Like the vendors in Messina, appellant cannot rely on his own failure to obtain subdivision approval to excuse his duty to perform.

Appellant next argues that appellees failed to make time of the essence, and that since time was not of the essence, damages for delay in delivery of possession cannot be recovered. The Agreement in the instant case contained a Modified Time of the Essence Clause (Agreement 5/13/86, at § 16). Appellant argues that because appellees sent a letter on July 31, 1986, rather than after July 31, 1986 and because appellees scheduled settlement on August 15 rather than 15 days after the effective date of giving notice that time was of the essence, appellees failed to make time of the essence. In support of this contention, appellant cites Tanenbaum v. Sears, Roebuck, & Co., 265 Pa.Super. 78, 401 A.2d 809 (1979). In Tanenbaum, an agreement of sale for the purchase of land contained no clause stating that time was of the essence, but rather provided that the vendors would be released if the vendees did not close on a certain date. The court in Tanenbaum held that time was not of the essence and noted: “Because time is not usually of the essence in these contracts, if one party wishes to so condition the agreement, it is incumbent on that party to give clear and unequivocal notice to the other party so that the latter may chart his actions accordingly.” Id., 265 Pa.Superior Ct. at 88, 401 A.2d at 814. See also, Shumaker v. Lear, 235 Pa.Super. 509, 515, 345 A.2d 249, 252 (1975) (time may be necessarily implied to be of the essence). In the instant case, unlike in Tanenbaum, there was a modified time of the essence clause. Further, by their July 31, 1986, letter, appellees gave appellant “clear and unequivocal notice” that time was of the essence. The fact that appellees notified appellant on July 31, 1986, rather than August 1, 1986, does not relieve appellant of notification that time was of the essence and that he had a duty to deliver possession without delay.

Judgment is affirmed.

      . “If the performance of a duty is made impracticable by having to comply with a domestic or foreign governmental regulation or order, that regulation or order is an event the non-occurrence of which was a basic assumption on which the contract was made.” Restatement (Second) of Contracts § 264.


source: Caselaw Access Project

author: MONTEMURO, Judge: OLSZEWSKI, Judge,

license: Public Domain

text:
    586 A.2d 957
    COMMONWEALTH of Pennsylvania v. Robert SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1990.
    Filed Feb. 8, 1991.

      Robert T. Panowicz, Wilkes-Barre, for appellant.
    Karen Tomaine, Asst. Dist. Atty., Scranton, for Com., appellee.
    Before OLSZEWSKI, MONTEMURO and FORD ELLIOTT, JJ.
   MONTEMURO, Judge:

Following a trial by jury, appellant Robert Smith was convicted of three counts of corruption of a minor, one count of indecent exposure, two counts of indecent assault, and one count of open lewdness. Appellant’s timely post-trial motions were denied, and appellant was sentenced to a total term of imprisonment of three years minimum to six years maximum. Appellant brings this appeal from the judgment of sentence. On appeal, appellant claims that (1) the trial court erred in failing to dismiss the case under Pennsylvania Rule of Criminal Procedure 1100(a)(2); (2) the trial court erred in permitting Commonwealth witnesses to testify as to hearsay statements made by the minor victim; (3) the trial court erred in allowing a social worker to testify as an expert in the field of child abuse, and permitting the witness to offer his opinion on whether appellant had sexually abused the victim; (4) the trial court erred in failing to charge the jury regarding the scrutiny of the minor child’s testimony; (5) the verdict was against the weight and sufficiency of the evidence; (6) the trial court erred in refusing appellant’s motion for judgment of acquittal on the basis that the criminal information did not correlate with the facts. Because we find that the trial court erred in admitting the out-of-court statements of the minor victim, we-reverse.

The instant convictions arise out of incidents which occurred between appellant and his granddaughter, S.L., during the summer of 1985. When S.L.’s mother (mother), noticed a change in S.L.’s attitude toward appellant and a decline in the child’s academic performance, mother.took S.L. to Children and Youth Services, where Mr. Ken Racowski, a social worker, interviewed the child. On the basis of his interview with S.L., Mr. Racowski concluded that the child had been molested by appellant and referred the case to the police. The instant charges were then brought.

Appellant challenges the trial court’s denial of his motion to dismiss on the basis of a Pa.R.Crim.P. 1100 violation. The version of Rule 1100 which was in effect at the time of appellant’s arrest provided:

Rule 1100. Prompt Trial

(a)(2) Trial in a court case, in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

Pa.R.Crim.P. 1100. The complaint was filed against appellant on April 23, 1987; thus, the case should have been tried by October 20, 1987. The case was not called for trial until August 1, 1988.

On October 20, 1987, the Commonwealth filed a motion for extension of the time for commencement of trial, pursuant to Rule 1100(c)(1), alleging excludable delay due to appellant’s omnibus pretrial motion. On November 6, 1987, the trial court entered an order extending the trial date to January 22, 1988. In the order, the court noted that the Commonwealth produced evidence establishing service of the motion for extension of time, and that appellant failed to answer the motion or appear for the hearing on the motion.

On January 22, 1988, the Commonwealth filed another motion for extension of time, alleging that the defendant’s various pretrial motions caused considerable delay. The motion requested an extension of time until April 22, 1988. The court entered an order on January 22, 1988, ordering appellant to show cause why the motion should not be granted and scheduling a hearing on the motion for February 17, 1988. The court entered an order on February 17, 1988, extending the trial date to April 22, 1988, and noting that defendant had failed to answer the Commonwealth’s motion to extend the time for trial or otherwise indicate a desire to oppose the extension. On the next day, February 18, 1988, however, another order was entered, indicating that defendant had appeared to answer the Commonwealth’s motion for extension, but nevertheless granting the “Commonwealth’s Motion for Extension of Time filed on January 22, 1988.” The order did not specify a new date for commencing trial.

During the pretrial period, appellant filed numerous requests and motions. On May 15, 1987, appellant filed a request for Bill of Particulars. On May 22, 1987, appellant filed a request for discovery. On June 8, 1987, appellant filed an omnibus pretrial motion, including a motion to quash the information, a motion to compel a psychiatric exam, and a motion for a pretrial conference. On July 14, 1987, appellant requested a continuance of the omnibus hearing. On July 17, 1987, appellant filed a brief in support of the omnibus pretrial motion. On September 2, 1987, the omnibus hearing was held. On September 9, 1987, appellant filed a second brief in support of his omnibus pretrial motion. On December 7, 1987 the trial court entered an order denying appellant’s motion to quash the information, motion to compel a psychiatric exam and a portion of appellant’s discovery requests. The court also ordered that the records from the Children and Youth Services concerning the child be made available for in camera review. On January 15, 1988, after reviewing the Children and Youth Services Records, the court entered an order scheduling a hearing on appellant’s motion for production of the records. On February 5, 1988, the court ordered that the records be made available to the district attorney pursuant to Pa.R. Crim.P. 305(B)(1) and (2). At a hearing in March, it was revealed that appellant in fact had the requested documents in his possession. Thus, months of delay were incurred due to appellant’s motion for discovery of evidence which had been in his possession the entire time.

On March 11, 1988, appellant filed a motion to dismiss the case pursuant to Rule 1100(f); the version of Rule 1100(f) in effect at that time permitted a defendant, at any time before trial, to apply to the court for dismissal of the charges on the ground that Rule 1100 had been violated. In his motion to dismiss, appellant alleged that the Commonwealth did not serve him or his attorney with the October 20, 1987 motion, and that the motion did not set forth with specificity the reasons for the extension or dates to justify the extension of time. The motion to dismiss also appears to challenge the Commonwealth’s January 22, 1988 motion for an extension of time, and alleges that the Commonwealth did not commence trial by January 22, 1988 and failed to properly move for an extension of time.

On April 22, 1988, the Commonwealth filed a third motion for extension of time for commencing trial, alleging that appellant’s motion to dismiss under Rule 1100 and motion to suppress evidence were still outstanding, constituting considerable delay. The April 22 motion requested that the time for commencement of trial be extended to August 5, 1988.

On June 14,1988, the court entered an order denying appellant’s motion to dismiss and addressing the remainder of appellant’s pretrial motions which were still outstanding. The trial court found that appellant had been served with the Commonwealth’s October 20, 1987 motion to dismiss. Although the copy of the motion which was sent by certified mail to appellant’s attorney was misaddressed and thus returned to the Commonwealth marked “Addressee unknown,” the court found that the motion was served upon appellant himself, and thus service was proper under Rule 1100(c)(2). The fact that appellant refused delivery of the copy of the motion on three separate occasions does not result in a conclusion that service was defective. We will not overturn the trial court’s finding that service was in compliance with Rule 1100(c)(2), as the conclusion was supported by sufficient credible evidence.

We also agree with the trial court that under Rule 1100, service of the motion can be made on either the defendant or defendant’s counsel. Rule 1100(c)(2) provides that a copy of the motion for an extension of time “shall be served upon the defendant through his attorney, if any, ...” We agree with the trial court that under Commonwealth v. Brett, 262 Pa.Super. 326, 396 A.2d 777 (1978), Rule 1100(c)(2) is satisfied when service is made upon the defendant or the defendant’s counsel.

With respect to appellant’s arguments regarding the propriety of the court’s order granting the extensions, we find that the trial court has adequately and properly addressed and disposed of the merits of appellant’s claims, and we affirm the ruling of the trial court on that basis. See Trial Court Opinion 1-8. Should there be any doubt as to the correctness of the trial court’s decision, we refer appellant to Commonwealth v. Reeves, 378 Pa.Super. 29, 548 A.2d 260 (1988), where this Court reiterated the longstanding principle that the delay caused by a defendant’s numerous and complex pretrial motions, such as those filed by appellant in this case, is to be considered delay caused by the unavailability of the defendant, and thus excludable from the computation of the Rule 1100 period. See also Commonwealth v. Chilcote, 396 Pa.Super. 106, 578 A.2d 429 (1990) (“time intervening between a defendant’s filing of pre-trial motions and the trial court’s disposing of such motions is also time which is properly excluded from the computation of the 180-day period under Rule 1100 due to the unavailability of the defendant”); Commonwealth v. Riffert, 379 Pa.Super. 1, 549 A.2d 566 (1988), appeal denied 522 Pa. 602, 562 A.2d 825 (1989) (defendant was unavailable to be tried until his omnibus pretrial motion was disposed of by the trial court). Here, the period of delay from May 15, 1987, the date on which appellant filed the first of many pretrial requests and motions, until June 14, 1988, the date on which the court disposed of the last of appellant’s motions, is attributable to appellant.

At trial, the court permitted Mr. Racowski, the social worker from the Department of Children and Youth Services who interviewed the child, to testify over defense counsel’s objection as to statements made by the child during his interview with her. The court also permitted the child’s mother and two police officers who interviewed the child to testify regarding statements made by the child. Appellant argues that the admission of all of this hearsay testimony constituted reversible error. We agree.

Before the trial began, appellant’s counsel requested a continuing objection to the anticipated hearsay testimony of S.L.’s mother, the social worker and the two police officers. See R.R. 79a, 83a-84a. The Commonwealth presented the testimony of these four witnesses before calling the child to the stand. Anticipating that appellant would challenge the content of S.L.’s testimony, that is, that the incidents actually took place, the trial court relied on the case of Commonwealth v. Willis, 380 Pa.Super. 555, 552 A.2d 682 (1988), allocatur denied 522 Pa. 583, 559 A.2d 527 (1989) and allowed the hearsay testimony on the basis that the testimony, consisting of prior consistent statements of the child, would be corroborated by the child’s testimony.

Appellant argues that portions of the witnesses’ testimony were never corroborated by the child. A comparison of S.L.’s testimony with that of the other witnesses shows that the child did not corroborate all of the prior testimony. The effect of the hearsay testimony can best be perceived through a comparison of S.L.’s testimony with the other witnesses’ testimony. Although the child testified last at trial, we will review her testimony first to emphasize the degree to which the hearsay testimony supplemented her testimony.

The child stated that appellant had touched her on “my chest area and below the belt.” R.R. at 385a. She testified that on one occasion she and her brother were helping appellant clean out his truck. After appellant took her brother away from the truck and put him on the swings, appellant showed her some pictures of naked people and unzipped his pants halfway, at which point S.L. got out of the truck. R.R. at 387a-388a, 398a. S.L. stated that appellant never made her touch him while in the truck. Later on that day, appellant came up to a bedroom in his home where S.L. was watching television and offered her a dollar which the child would not accept. He then told her “not to tell.” R.R. at 393a. On another occasion, appellant gave her a dollar which she gave back to him when he told her not to tell. R.R. at 394a.

The child testified to two separate incidents which occurred while she was at her grandparents’ home in the bedroom watching television. On one occasion, appellant came into the bedroom and unbuckled the child’s pants, grabbed her hand and placed it over his penis. R.R. at 395a. Another time, appellant came into the bedroom, pulled down his pants and placed the child’s hand on his penis. R.R. at 389a.

The child told of an incident which occurred in her grandparents’ living room in which appellant touched her on her chest while reaching for his cigarettes. S.L. testified that another time appellant put his hand down her pants. There was no testimony on where or in what context this latter incident occurred. R.R. at 396a-397a.

According to the child, the incidents occurred during the summer of 1985 just before her seventh birthday.

The hearsay testimony of the other witnesses may be summarized as follows. Mother testified that beginning sometime in 1985 and continuing through 1986,. S-L.’s attitude toward appellant changed and the child said that she did not want to go over to her grandparents’ house if appellant was there. When mother asked the child why she didn’t want to go with appellant, S.L. responded, “Grampy bugs me.” R.R. 115a. Upon recommendation of a counsel- or, mother contacted Children and Youth Services in February, 1987.

Mr. Ken Racowski, the caseworker from Children and Youth Services who interviewed the child, testified that S.L. told him of one incident in which her grandfather (appellant) had touched her in her vaginal area, and had placed her hand on his penis. Mr. Racowski stated that the child told him that the act had occurred during the summer in the back of appellant’s truck which was parked at her grandmother’s house. Mr. Racowski testified that the child told him of another incident in which appellant tried to grab her but she ran into the house. After interviewing the girl, Mr. Racowski referred the case to the Scranton Police Department.

Police Officer Grace Halpin of the Scranton Police Juvenile Division described her interview with S.L. Officer Hal-pin stated that the child told her that appellant had fondled her in the vaginal and breast area approximately five times and had forced her to touch him in the area of his penis twice. The child also told Officer Halpin that appellant had shown her photos of a nude male and female; with the use of anatomically correct dolls, the girl demonstrated to Officer Halpin that the people in the photographs were engaged in the act of sexual intercourse.

After interviewing the child, the Scranton Police Department realized that the offenses had occurred in Taylor, Pennsylvania rather than in Scranton and therefore the case was transferred to the jurisdiction of the Taylor Police Department. Because the child was more comfortable talking to the female police officer, Officer Halpin was asked to come to the Taylor Police Department to interview the child again in the presence of Officer Robert Zaloga of the Taylor Police Department.

Officer Zaloga recounted two interviews he had with S.L. The initial interview was taken in the presence of the child and mother. Officer Zaloga stated that the child told him of four specific incidents which occurred between appellant and her during the summer months of 1985. The child told Officer Zaloga that during the first incident, she was helping appellant clean out his truck when appellant showed her some “nasty” pictures. R.R. at. 338a. She told Officer Zaloga that after her grandfather showed her the picture, he touched her in the breast area and the vaginal area and then took her hand and placed it in the area of his penis. The second incident which the child recounted to Officer Zaloga occurred two weeks later at the home of her grandparents. The child stated that she was up in her grandparents’ bedroom lying on the bed watching television when appellant came in, laid down on the bed next to her, slid his hand up under her shirt and then down across her genital area, and then grabbed her hand and put it down the front of his pants. She told Officer Zaloga that she slapped appellant and ran downstairs. The third incident which the child told Officer Zaloga about occurred in the truck located outside the grandparents’ home. Appellant again touched her breast and genital area and placed her hand on his genital area. The fourth incident which the child related to Officer Zaloga occurred in appellant’s residence when appellant pulled down his pants, exposed himself to the child and made her hold his penis, and then grabbed her breast and genital areas.

At the second interview, Officer Halpin was present along with Officer Zaloga. Officer Zaloga testified that the child gave the same testimony that she had given at the first interview.

The hearsay statements of the child, as recounted by the officers, provided a much more lucid, detailed and complete account of the incidents than the child’s trial testimony which may fairly be characterized as confused and disjointed. Portions of the officers’ testimony were never even corroborated by S.L. For example, the caseworker and one of the police officers testified that S.L. told them that appellant had forced her to touch him while in the truck, whereas S.L. testified that appellant never made her touch him while they were in his truck.

Appellant was charged with four counts of corruption of minors, four counts of indecent assault, two counts of indecent exposure, and two counts of open lewdness. After the Commonwealth rested its case, appellant demurred to all of the charges, in part because the victim’s testimony did not match the testimony of the other witnesses and the victim’s testimony standing alone did not substantiate any of the charges alleged in the information. The trial court dismissed two of the charges, finding the evidence insufficient on a charge of corruption of a minor and a charge of indecent assault. The jury convicted appellant of three counts of corruption of minors, one count of indecent exposure, two counts of indecent assault, and one count of open lewdness.

On cross-examination, defense counsel questioned S.L. as to whether her memory was better when she told Officers Halpin and Zaloga and Ken Racowski about the incidents than her memory was at the time of trial, which was held more than a year after the incidents had been reported. S.L. indicated that her memory was better eighteen months earlier when she had told the police of the incidents. When asked by defense counsel if her statements were more truthful when she told the police about the incidents, S.L. responded “No. This is all true. I wouldn’t make up a lie like this.” R.R. 408a. Defense counsel cross-examined S.L. as to the year in which the incidents occurred and when S.L. had first told anyone of the incidents. Defense counsel also brought out the fact that appellant and S.L.’s grandmother were going through a divorce, presumably to raise the inference that S.L. was biased against appellant.

Hearsay evidence is commonly defined as an out-of-court assertion which is offered to prove the truth of the matter asserted. Commonwealth v. Thomas, 372 Pa.Super. 349, 356, 539 A.2d 829, 833 (1988), appeal denied 520 Pa. 604, 553 A.2d 967 (1988).

When a statement is offered in evidence to prove the truth of a fact asserted therein, the speaker’s credit and the circumstances of the utterance become basic to a proper evaluation of the statement. Therefore, the hearsay rule generally excludes such evidence unless the speaker is on hand to personally testify.

Thomas, supra 372 Pa.Super. at 356, 539 A.2d at 833, quoting Commonwealth v. DiSilvio, 232 Pa.Super. 386, 391, 335 A.2d 785, 787-88 (1975).

In ruling that the statements made by S.L. to the police officers and social worker were admissible, the court relied upon the “prior consistent statement” exception to the hearsay rule. In certain circumstances, a prior declaration of a witness is admissible to corroborate the witness’ testimony where the witness’ credibility has been attacked. Commonwealth v. Hutchinson, 521 Pa. 482, 556 A.2d 370 (1989).

Because such statements are hearsay, their use as a means to rehabilitate the credibility of an impeached witness’ testimony is severely limited; and such statements are admissible only if it is alleged that the witness’ present testimony is recently fabricated or a result of corrupt motives____ Furthermore, evidence of such statements is “admissible only in rebuttal and then only for the purpose of showing that that which the witness now testifies to has not been. recently fabricated”____ As a further restriction upon admissibility the statement must have been made at a time “before its ultimate effect on the question trying could have been foreseen”____ In more recent times this court has interpreted this caveat to mean before “any corrupt motive has arisen”____
If one testifies that they did a certain thing at a given time, they may be challenged that they said something different before. Such is impeachment by a prior contradictory statement. Ordinarily, that one has always said the same thing is subsumed in their testimony and need not be buttressed by evidence of prior consistency, unless that consistency, by allegation of recent fabrication is challenged. When challenged, evidence of prior and continued consistency may be offered. Evidence of prior consistency, absent such challenge is not required and is essentially cumulative and repetitious. To regularly allow testimony of prior consistency may easily become a device to merely augment the credibility of witnesses by others.

Id., 521 Pa. at 487-88, 556 A.2d at 372 (citations omitted). See also Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246, 258 (1988) (“prior consistent statements of a witness are admissible to rebut a defense suggestion of corrupt motives or recent fabrication”); Commonwealth v. Griffin, 511 Pa. 553, 568-69, 515 A.2d 865, 872 (1986), cert. denied Griffin v. Pennsylvania, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987) (“prior consonant statements, while not admissible to buttress or corroborate a witness’ in-court testimony, are admissible to rehabilitate that witness’ credibility and to rebut accusations or suggestions of fabrication or of corrupt motives”). The supreme court has held that the trial court may, in its discretion, allow the Commonwealth to introduce the prior consistent statements to rebut a charge of corrupt motives in anticipation of the defense, before the witness has actually been impeached on cross-examination. Commonwealth v. Smith, supra, 518 Pa. at 40, 540 A.2d at 258.

Having carefully reviewed the “prior consistent statement” exception to the hearsay rule as defined by our supreme court, we must conclude that the testimony of the police officers went beyond the permissible “rehabilitative” goal of the exception. The officers’ testimony included detailed accounts of the incidents which were never supplied by S.L. herself, thereby greatly augmenting S.L.’s testimony. We hold that the out-of-court statements do not fall within the prior consistent statements exception to the hearsay rule.

The Commonwealth also relies on caselaw which holds that prior statements are admissible when the declarant is present in court and available for cross-examination. Commonwealth v. Fanelli, 377 Pa.Super. 555, 547 A.2d 1201 (1988) (en banc), allocatur denied 523 Pa. 641, 565 A.2d 1165 (1989). We have found two cases dealing with the admissibility of out-of-court statements made by minor victims of sexual abuse under circumstances similar to those presented by the facts of this case.

In Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986), this Court held that the admission of statements made by two child victims of sexual abuse violated the hearsay rule. In Haber, two mothers related stories of sexual abuse told to them by their children, including details of the physical acts and the identity of the molester. The children were four and one-half and five years old at the time of the abuse. At trial, the children were unable to remember details about what had happened and their testimony consisted of monosyllabic responses to leading questions. The five year old child was not permitted to testify as to the identity of her assailant. For these reasons, the Court held that the testimony of the children’s mothers recounting their interviews with the children was inadmissible hearsay. Id., 351 Pa.Superior Ct. at 81, 505 A.2d at 274. On the other hand, in the recent case of Commonwealth v. Rakes, 398 Pa.Super. 440, 581 A.2d 212 (1990), this Court held that testimony of a counselor and psychologist relating that the victim had told them that appellant had molested her from the time she was eight or nine years old was properly admitted at trial. The victim was fourteen when she told the psychologist and counselor of the sexual ábuse, and fifteen years old at the time of trial. At trial, the victim testified first and related in explicit detail the numerous assaults committed on her by the defendant. Id., 398 Pa.Superior Ct. at 442, 581 A.2d at 214. The victim’s testimony was followed by the testimony of the counselor and the psychologist who testified that the victim had related the same account of events to them. The Court noted that the victim was present at trial and available for cross-examination. Id., 398 Pa.Superior Ct. at 446, 581 A.2d at 216. In concluding that the victim’s prior statements were admissible, the Rakes Court distinguished Haber:

Here, unlike Haber, the victim is fifteen years old, was available at trial for full cross-examination, and the case against appellant was fully established through the victim’s testimony. The out-of-court testimony here did not include details concerning elements of the offense that the victim herself was unable to provide. Thus, Haber does not require reversal in this case.

Rakes, supra, 398 Pa.Superior Ct. at 448, 581 A.2d at 217.

Having carefully reviewed the trial transcript and compared the facts of this case with those of Haber and Rakes, we must conclude the trial court erred in admitting the testimony of the police officers. In this case, the victim was seven years old when the incidents occurred, was eight and one-half when she reported the incidents to the police, and was ten years old at the time of trial. As in Rakes, the victim here was available for full cross-examination at trial. However, unlike Rakes, the Commonwealth’s case here was not fully established through S.L.’s testimony at trial. A comparison of the officers’ testimony with S.L.’s testimony shows that the officers’ testimony was crucial to the Commonwealth’s case, as the testimony of these witnesses supplied many missing details regarding the time, place and frequency of the events and elements of the offenses which S.L. failed to provide at trial. In this regard, the instant case is more similar to Haber. We hold that the trial court erred in admitting S.L.’s out-of-court statements. Although the trial court gave a cautionary instruction to the jury to disregard any testimony that was not corroborated by S.L., we find that the instruction could not have cured the harmful effect of all of the hearsay testimony, given the extent to which the out-of-court statements buttressed S.L.’s in-court testimony.

As appellant’s conviction was based on evidence which was inadmissible under the evidentiary rules on hearsay testimony in effect at the time of his trial, we reverse the judgment of sentence and remand the case for a new trial. On remand, we direct the attention of the trial court and the parties to a recent amendment to the Pennsylvania statutes dealing with the admissibility of out-of-court statements by children:

§ 5985.1. Admissibility of certain statements

(a) General rule.—An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal proceeding if:
(1) The court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability.
(2) The child either:
(i) testifies at the proceeding.;
or
(ii) is unavailable as a witness and there is corroborative evidence of the act.
(b) Notice required.—A statement otherwise admissible under subsection (a) shall not be received into evidence unless the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

42 Pa.C.S.A. § 5985.1 (Purdon 1989). As this new rule of evidence became effective February 20, 1990, § 5985.1 would apply to appellant’s new trial.

For the foregoing reasons, we reverse the judgment of sentence and remand this case for further proceedings consistent with this decision. As our disposition of the issue regarding the admissibility of S.L.’s out-of-court statements requires reversal, we need not address appellant’s remaining arguments.

Reversed and remanded.

OLSZEWSKI, J., dissents.

OLSZEWSKI, Judge,

dissenting:

While I agree with the majority’s disposition of appellant’s challenge to the trial court’s failure to dismiss on the basis of an alleged Pa.R.Crim.P. 1100 violation, I must dissent with the treatment accorded the admissibility of the testimony of the four witnesses.

I agree that the testimony would not be admissible as prior consistent statements made by the child, for the reason that the child’s testimony given at trial did not fully corroborate the testimony given by the four witnesses. It is well-settled that prior consistent statements of a witness are admissible to rebut a defense suggestion of corrupt motives or recent fabrication and to rehabilitate the witness’s credibility. See Commonwealth v. Griffin, 511 Pa. 553, 568-569, 515 A.2d 865, 872 (1986), cert. denied Griffin v. Pennsylvania, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987); Commonwealth v. Smith, 518 Pa. 15, 40, 540 A.2d 246, 258 (1988). In the present case, I am in agreement with the majority that the testimony of the four witnesses in question exceeded the scope of the child’s testimony and, therefore, was not only rehabilitative, but supplemental to the child’s testimony.

I do not agree, however, that the testimony should have been excluded from the evidence. The record indicates that the jury was instructed to disregard any testimony that was not corroborated by the child-victim as follows:

Members of the jury, some witnesses testified as to things told to them by [S.L.]. This testimony was given prior to the child testifying in this trial. That testimony given by the witnesses that was not corroborated by [S.L.] is to be ignored by you and is not to be used in any way as the basis for a finding of guilt by you. You may only use that testimony of the witnesses, which you believe, and which was corroborated by [S.L.J’s testimony that you believe.

(Trial transcript at 130.)

Contrary to the majority, I believe that this jury instruction effectively cured any harmful effect of the supplemental testimony given by the four witnesses. I would, therefore, not reverse on this ground. Even if reversal were proper on this ground, on remand, the trial court would be required to apply a recent legislative enactment, which would arguably render the testimony in question admissible. 42 Pa.C.S.A. § 5985.1 (Purdon 1989), which went into effect on February 20, 1990, and would apply to appellant’s new trial, provides:

§ 5985.1 Admissibility of certain statements

(a) General rule—An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing indecent contact, sexual intercourse or deviate sexual intercourse performed with or. on the child by another, not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal proceeding if:
(1) The court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability.
(2) The child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness and there is corroborative evidence of the act.
(b) Notice required—A statement otherwise admissible under subsection (a) shall not be received into evidence unless the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

In the instant case, it would be futile to remand for a new trial, as the majority has decided, only to have the testimony admitted under the above statute. In the interests of judicial economy, I believe the testimony was properly admitted into evidence. Additionally, any prejudice that the defendant may have endured by the admission of the testimony was cured by the cautionary instructions given to the jury. Therefore, I respectfully dissent with the analysis of the majority on this issue.

      . The amended Rule 1100, effective December 31, 1987, requires that the trial be commenced within 365 days of the date of filing of the complaint against the defendant, where the defendant is out on bail. See Pa.R.Crim.P. 1100(a)(3).

      . We have found no supreme court cases which support the admissibility of hearsay statements as substantive evidence where the declarant is in court and available for cross-examination. We note that this rule, assuming its validity, would obviate the need for many of the hearsay exceptions, including the prior consistent statement exception discussed supra. For example, if out-of-court statements are admissible in any case in which the declarant testifies and is cross-examined at trial, the "prior consistent statement" exception to the hearsay rule, which holds that prior declarations of a witness whose credibility has been impeached are admissible for the limited purpose of rehabilitating the witness, would be unnecessary.

      . In Haber, the trial court permitted one of the child victims to testify as to all matters, and permitted the other child to testify as to the molestation itself, but not as to the identity of her molester. Haber, supra 351 Pa.Super. at 81, 505 A.2d at 274.


author: POPOVICH, Judge:

text:
    586 A.2d 967
    Joyce E. WILLIAMSON (Haas), Appellee, v. Kenneth R. WILLIAMSON, Appellant. Joyce E. WILLIAMSON (Haas), Appellant, v. Kenneth R. WILLIAMSON, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1990.
    Filed Feb. 15, 1991.

      Lee H. Roberts, Lock Haven, for appellant in No. 542 and appellee in No. 562.
    John C. Howett, Jr., Harrisburg, for appellant in No. 562 and appellee in No. 542.
    Before POPOVICH, HUDOCK and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from orders of equitable distribution entered in the Court of Common Pleas of Centre County. The orders in question are set forth below, in pertinent part.

AND NOW, this 6th day of June, 1989, the Court orders as follows:
1. Plaintiff is awarded:
Marital residence at 532 Rock Road,
State College $110,000.00
Shawnee Village Time-Share 7,900.00
Personal Property 10,000.00
Total: $127,900.00
2. Defendant is awarded:
Williamson Sports Motors $ 65,000.00
Vehicles 18,000.00
IRA account 7,781.00
Motorcycle 4,000.00
Beach Craft T34 Aircraft 55.000. 00
Gun Collection 10.000. 00
Twin Commanche 25,000.00
Total: $184,781.00
3. The marital property owned by the parties and located at 532 Rock Road, State College, Pennsylvania, shall be transferred to Plaintiffs name, with Defendant retaining the sole responsibility for the mortgage associated with the residence. If Plaintiff puts up the marital residence for sale, she will be responsible for capital gain tax consequences.
4. Defendant should pay mortgage payments directly to Plaintiff until such time as the mortgage would have been paid in full in accordance with the terms.
5. Defendant shall pay child support to the Plaintiff for their child, Paige, in the amount of $450.00 per month.
6. Defendant is ordered to pay reasonable fees to the Plaintiffs counsel for the amount of $8,000.00.
7. Both parties shall take necessary steps to make order effective within 60 days of this order.

On August 17, 1989, the trial court denied Mr. Williamson’s “exceptions” and Mrs. Haas’ post-trial motions. On August 18, 1989, the trial court amended its August 17, 1989 order to give Mr. Williamson the right of first refusal to purchase the marital residence in the event that Mrs. Haas decided to sell the house within sixty days for the property’s stipulated value of $110,000.00. The amendment also provided that Mr. Williamson would have the right of first refusal at the fair market value of the property if Mrs. Haas exercised her option after the sixty day period had expired. Subsequently, judgment was entered on the record.

Mr. Williamson raises two “catch-all” issues on appeal. He challenges the trial court’s award of child support to. his minor daughter, claiming that the amount was based on an unsubstantiated earning capacity. He also contests the equitable distribution scheme, asserting that the trial court improperly relied upon the gross value of the residence without deducting the mortgage, improperly considered the tax consequences of various transactions, double-counted assets, improperly calculated the value of his business as it applied to the issue of distribution and improperly included a value for a gun collection which, allegedly, was non-marital property.

In her cross-appeal, Mrs. Haas raises ten issues. In short, she contends that the trial court abused its discretion in valuing certain property, in determining an appropriate award of child support, in failing to award her a greater amount of attorney’s fees and in ignoring procedural deficiencies in Mr. Williamson’s “exceptions.” Mrs. Haas also asserts that the instant appeal should be dismissed as a result of various defects in Mr. Williamson’s appellate brief.

Before we reach the merits of both parties’ appeals, we note that the issues regarding child support are waived. In its order dated June 6, 1989, the trial court explicitly directed that child support be paid in the amount of $450.00 per month. In accordance with Pa.R.Civ.P. 1920.52(b), claims that involve child support are specifically excluded from matters which require the filing of post-trial motions. Thus, the correct procedure would have been to take a direct appeal from the June 6, 1989 order. See Scheidemantle v. Senka, 371 Pa.Super. 500, 538 A.2d 552 (1988). Since neither party accomplished this within thirty days of June 6, 1989, the corresponding issues are waived. Pa.R.A.P. 903(a).

However, the economic issues are properly before us. We note our scope and standard of review. Clearly, the trial court maintains discretion in equitably distributing marital property. Powell v. Powell, 395 Pa.Super. 345, 577 A.2d 576 (1990); Williams v. Williams, 373 Pa.Super. 143, 540 A.2d 563 (1988). This Court will not disturb the trial court’s determinations absent an abuse of discretion. Kleinfelter v. Kleinfelter, 317 Pa.Super. 282, 463 A.2d 1196 (1983); Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983). See Commonwealth ex.rel. Levy v. Levy, 240 Pa.Super. 168, 361 A.2d 781 (1976) (defines “abuse of discretion”).

Before we embark on a discussion of the instant distribution scheme, we are compelled to remind the parties of the fundamental principle that equitable distribution need not be equal, only equitable. In Fratangelo v. Fratangelo, 360 Pa.Super. 487, 493-94, 520 A.2d 1195, 1200-01 (1987), this Court clearly held that when a trial court distributes marital property, it must not presume a fifty/fifty division. Rather, the trial court must take account of the factors set forth in the Divorce Code, specifically 23 P.S. § 401(d). Id. Then, after full consideration, the trial court must distribute the property in an equitable fashion and in a manner which will promote just results. 23 P.S. § 102(a)(6). This Court will not find an abuse of discretion merely because the parties do not receive equal shares of the marital assets. See also Brown v. Brown, 352 Pa.Super. 267, 273-74, 507 A.2d 1223, 1226 (1986) (the trial court may determine, in its discretion, whether a property right was acquired during marriage and whether equity dictates that it be included as part of the marital estate).

The first question that we must resolve is whether the trial court improperly awarded the marital home to Mrs. Haas at the stipulated value of $110,000.00 without deducting the outstanding mortgage of approximately $27,500.00. The trial court instructed that Mr. Williamson pay the mortgage. He asserts that he should not be responsible for the payments.

Mr. Williamson cites to the Divorce Code, 23 P.S. § 401(e)(7) in support of his position, which provides:

For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage, including the increase in value prior to the date of final separation of any nonmarital property acquired pursuant to paragraphs (1) and (3), except: [____] (7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the date of final separation.

While we are cognizant of the above provision, we are also compelled to defer to the trial court’s reasoning regarding this issue. Clearly, the trial court recognized the value of the mortgage when it equitably divided the property. Additionally, the trial court considered the tax consequences to Mrs. Haas in awarding her the house. At page seven of its opinion, the trial court wrote, “The value of marital residence as stipulated by both parties is $110,000.00. The Plaintiff is entitled to the house but would be responsible for capital gains consequences when the house is sold.” See id., June 6, 1989, at 8-9,11,17-18 (accord). See 23 P.S. 401(d)(10). As well, at page fifteen of its opinion, the trial court stated:

Both parties stipulated the fair market value of the house to be $110,000.00. The joint mortgage balance owed by the parties to Mid-State Bank and Trust Company is about $27,500.00. The equity in jointly owned marital residence of the parties is $82,000.00 [sic]. Considering in totality the circumstances of this case, the Court awards the marital home to the Plaintiff without any encumbrances. Plaintiff substantially contributed to the making of this marital home. In ten years of her marriage with defendant she utilized her skill as a realtor and made profits. Defendant testified that Plaintiff was solely responsible for real estate transactions.

We are satisfied that the trial court fully considered the $27,500.00 outstanding mortgage and “all relevant factors” pertinent thereto before it awarded the marital home to Mrs. Haas. See Trial court opinion, June 6, 1989, at 8. See also N.T., December 8, 1988, at 147-48. Although the trial court decided to assign responsibility for the mortgage to Mr. Williamson, it also noted that the equitable distribution itself “will effectively give [Mr. Williamson] approximately 60% of the value of marital property, and [Mrs. Haas] approximately 40% thereof.” Trial court opinion, June 6, 1989, at 8. We find no error in the trial court’s evaluation as it relates to the distribution of the marital residence.

Mr. Williamson’s next issue on appeal—to wit, whether the trial court improperly considered the tax impact for Mrs. Haas in the event that she decides to sell the marital residence, but did not consider the tax impact for Mr. Williamson when he sold his business—is waived. Mr. Williamson failed to raise this issue when he filed his “exceptions” to the trial court’s order. Thus, they are not preserved for appellate review. See Pa.R.Civ.P. 1920.52(a). See Pa.R.Civ.P. 227.1. See Pa.R.A.P. 302(a). See Colagioia v. Colagioia, 362 Pa.Super. 213, 523 A.2d 1158 (1987) (if an issue is not preserved in a motion for post-trial relief, then the matter is deemed waived on appeal).

Mr. Williamson also contends that the trial court counted assets twice, resulting in great economic inequity. We will address this issue in conjunction with Mr. Williamson’s next assertion of error; that is, that the trial court “improperly included the value of the business in the marital assets or included it at an improper value.” Appellant’s brief, at i. After review, we find that the trial court had ample evidence to conclude that $65,000.00 worth of Mr. Williamson’s business was subject to equitable distribution. We adopt the trial court’s analysis and rationale regarding this issue. See Trial court opinion, June 6, 1989, at 2-3, 5, 6-8, 10, 13-14, 16, 17. See also Antenuptial Agreement, Exhibit A. In brief, the trial court found that

[Mr. Williamson] owned his business before the marriage. The value of his business at the time of the marriage is determined by this Court to be $65,000.00. The value of his business when sold in September 1988 was $130,-000.00 There has been an increase of $65,000.00 which would be subject to distribution. [____] The court finds that the value of Williamson Sports Business sold to a bonafide purchaser to be the actual value of the sale, $130,000.00. The value of the business not subject to prenuptial agreement between the parties is $65,000.00. This $65,000.00 increase in value is marital property.

Trial court opinion, June 6, 1989, at 6-7.

First, we note Mr. Williamson’s argument. He claims that the trial court assigned an improper value to his business inasmuch as it failed to consider that the franchise was owned by his brother, Carl Williamson. Carl Williamson testified that he was a partner in the business and that he received half of the proceeds when the business was sold. The trial court explicitly rejected his testimony. See Trial court opinion, June 6, 1989, at 7, 13-14. Clearly, the finder of fact is entitled to weigh evidence and assess credibility. Thomson v. Thomson, 359 Pa.Super. 540, 519 A.2d 483 (1986); Wilson v. Benjamin, 332 Pa.Super. 211, 221, 481 A.2d 328, 333 (1984). The finder of fact may believe all, part or none of the evidence presented to it. Brown v. Brown, 352 Pa.Super. 267, 507 A.2d 1223 (1986). We will not disturb the trial court’s credibility determinations. Commonwealth ex rel. Caplan v. Caplan, 236 Pa.Super. 605, 346 A.2d 822 (1975).

Second, a review of the trial court’s order indicates that the trial court awarded Mr. Williamson the entire $65,000.00, representing the increase in the value of his business from the time of marriage until the time of its sale. In addition, Mr. Williamson received various property, which he alleges was purchased with the proceeds of the sale. He claims that the trial court double-counted assets.

Again, we note that the trial court effectuated a scheme of equitable distribution. We find, especially in light of the trial court’s opinion and order entered after consideration of Mr. Williamson’s “exceptions” to the June 6, 1989 order, that the trial court recognized the full ramifications of its distribution decisions. For example, in response to Mr. Williamson’s complaint that the Twin Commanche airplane was purchased for $25,000.00 from the same $65,000.00 that resulted from the sale of his business, the trial court responded, “[t]his exception is incorrect because the Twin Commanche was purchased with marital assets or the proceeds of marital assets.” This indicates to us not double-counting, but rather that Mr. Williamson used other funds, aside from the money that he received from the sale of his business, to purchase the additional items. See, for ex., N.T., December 9, 1988, at 78-80 (wherein Mr. Williamson admitted to storing up to $50,000.00 cash in his refrigerator). See id. at 76-80.

We find no evidence in the record, other than Mr. Williamson’s own oral testimony, to substantiate his claim that he actually acquired the items, set forth in the trial court’s order, with the proceeds of the business. Conversely, we conclude it reasonable that the trial court traced these purchases to the proceeds gained through the disposition of other marital assets.

The law on this issue was articulated in Anthony v. Anthony, 355 Pa.Super. 589, 514 A.2d 91 (1986), wherein this Court held that marital property includes any accretion in the value of pre-marital property, regardless of whether that property was exchanged for other property. In Diamond v. Diamond, 360 Pa.Super. 101, 519 A.2d 1012 (1987), this Court reiterated the same proposition, stating:

We are not concerned that assets in the marital estate used for post-separation acquisitions will not be calculated as marital property. It is clear that assets in or to which the marital estate is entitled at tbe time of separation are includable as marital property. It is, therefore, irrelevant in determining the marital estate that those assets are later used in post-separation acquisitions. Anthony, 355 Pa.Super. 589, 514 A.2d 91.

Diamond, 360 Pa.Super. at 108, 519 A.2d at 1015.

Finally, Williamson contends that the trial court improperly included the value of a gun collection which was nonmarital property. We must reject this claim because the trial court explicitly weighed Mr. Williamson’s testimony against that of Mrs. Haas and accepted Mrs. Haas’ testimony, inventory and appraisement relative to this issue. See Opinion and Order, August 17,1989, at 3. See N.T., December 8, 1988, at 99-100. Additionally, Mr. Williamson testified that he currently possesses seven handguns and six rifles and shotguns. Approximately one half of these guns were owned by him prior to the marriage. Id. at 290-91. Although the trial court rejected Mr. Williamson’s valuation, the import of his testimony lies in his implicit admission that he acquired firearms during the marriage. Property acquired during marriage is subject to equitable distribution. 23 P.S. § 401(e).

We now turn to Mrs. Haas’ claims, set forth in her cross-appeal. We will address these in random order, as some of Mrs. Haas’ issues may be more easily resolved than others.

As stated previously, the issues involving child support are deemed waived. In a two-fold analysis, we can also dismiss Mrs. Haas’ allegations of procedural violations on the part of Mr. Williamson. Mrs. Haas asserts that the trial court abused its discretion in failing to dismiss Mr. Williamson’s “exceptions” for his failure to comply with Pa.R.Civ.P. 1920.52 and Pa.R.Civ.P. 227.1. In particular, Mrs. Haas “respectfully submits that Williamson’s ‘Exceptions to Opinion and Order of the Court dated June 6, 1989’ failed to specify where the grounds for each ‘Exception’ had been asserted in pre-trial proceedings or at trial on the matter.” Appellee’s brief, at 57.

Nevertheless, the trial court addressed each “exception” and set forth its reasons for each denial. See Trial court opinion, August 17, 1989. Inasmuch as the trial court provided this Court with explanations for its decision on each “exception,” we were inclined to review the issues properly preserved in Mr. Williamson’s appeal. See Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (1988) (defendant’s failure to secure formal allowance of supplemental motions nunc pro tunc did not preclude an appeal where the trial court nevertheless entertained defendant’s claims).

Mrs. Haas also contends that this Court should dismiss Mr. Williamson’s appeal in light of his failure to conform his brief to the mandates of Pa.R.A.P. 2154(a) and Pa.R.A.P. 2117(a)(4). While this Court in no way condones procedural violations, we are also cognizant of Pa.R.A.P. 105 and Pa.R.Civ.P. 126 which provide for the liberal construction of the rules “to secure the just, speedy and inexpensive determination of every matter to which they are applicable.” Pa.R.A.P. 105. Given the complexity of this case, we have reviewed the record in its entirety. The parties have not been prejudiced by the minor procedural violations. Thus, we decline to dismiss Mr. Williamson’s appeal in this case for noncompliance with the procedural rules.

Mrs. Haas asks whether the trial court abused its discretion in failing to award her a greater sum for counsel fees, costs and expenses. The law is clearly against Mrs. Haas in this case. First, we will not disturb the trial court’s conclusion that $8,000.00 represented reasonable counsel fees and costs. The award of counsel fees is within the trial court’s discretion. 23 P.S. § 401(b); 23 P.S. § 502, Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987). The award is not automatic. Dech v. Dech, 342 Pa.Super. 17, 492 A.2d 41 (1985). In fact, where the recipient has other sources of income, including pre-separation money from the former spouse, an award of counsel fees may be tempered. Murray v. Murray, 80 Pa.Super. 573 (1923); Hoover v. Hoover, 288 Pa.Super. 159, 431 A.2d 337 (1981).

Here, Mrs. Haas alleges that she has incurred approximately $20,000.00 in counsel fees, costs and expenses. The trial court awarded her $8,000.00, almost one-half of the total amount expended. An award of counsel fees is not intended to reimburse one party in full for his or her legal costs. Brong v. Brong, 129 Pa.Super. 224, 195 A. 439 (1937). Rather, the amount awarded should be sufficient so as to advance just results and to place the litigants on equal footing. Wechsler v. Wechsler, 242 Pa. Super. 356, 363 A.2d 1307 (1976). We feel that this end was satisfied in this case.

Although Mrs. Haas alleges that she has incurred a $20,000.00 debt due to Mr. Williamson’s failure to cooperate, Mr. Williamson argues exactly to the contrary and in fact contends that Mrs. Haas was to blame for certain problems. This Court will not engage in a re-evaluation of the parties’ credibility, nor will we re-calculate what the trial court considered to be a fair and reasonable award to Mrs. Haas. Second, considering Mrs. Haas’ distributive portion and current financial status, there is absolutely no indication that she is entitled to additional attorneys fees, cost and expenses.

This Court also rejects Mrs. Haas’ claim that she is entitled to an award of counsel fees pursuant to Pa.R.A.P. 2744(1). While we are aware that this litigation has been complicated and protracted, we find no reason to penalize Mr. Williamson through the invocation of Pa.R.A.P. 2744(1). In fact, we are in complete agreement with Mr. Williamson’s position that he should not be discouraged from exercising his right to appeal for fear that sanctions will be imposed.

Mrs. Haas has raised three issues which we can dispose of summarily. She contends that the trial court abused its discretion in assigning values for equitable distribution purposes to (1) the marital Beechcraft T-34 aircraft; (2) the time-share condominium interest owned by her; and (3) the personal property that she received.

The parties testified as to each of these issues before the trial court. An owner of property is competent to testify and is considered an expert when offering evidence as to a property’s value. Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985). The finder of fact is entitled to accept or reject any or all of the testimony gleaned at the proceedings. Aletto v. Aletto, 371 Pa.Super. 230, 537 A.2d 1383 (1988). Based on the record before us, we find no error in the trial court’s valuations. See LaBuda v. LaBuda, 349 Pa.Super. 524, 503 A.2d 971 (1986); Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984), rev’d on other grounds, 509 Pa. 282, 502 A.2d 109 (1985) (discusses methods of valuation); Aletto v. Aletto, 371 Pa.Super. 230, 537 A.2d 1383 (1988) (trial court must use its discretion in valuing property, and may average disparate appraisals); Fitzpatrick v. Fitzpatrick, 377 Pa.Super. 268, 547 A.2d 362 (1988) (trial court may reject evidence offered by both parties in favor of its own valuation method). Furthermore, the trial court provided this Court with its reasons for assigning the various values. See Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983).

Finally, Mrs. Haas contends that the trial court abused its discretion in finding that the antenuptial agreement entered into between the parties protected Mr. Williamson’s interest in his business “in an amount unsubstantiated by the evidence presented at [the] hearing” and in its determination of the increase in value of the business between the date of marriage and the date of sale. We acknowledge Mrs. Haas’ concern that the trial court misinterpreted the antenuptial agreement and neglected to exclude certain personal property from the financial data sheet for distribution purposes. However, we also appreciate the purpose of an antenuptial agreement. See Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990). Thus, while we understand Mrs. Haas’ position, we still must reject her theory and agree with the trial court’s evaluation in this case.

In particular, we note the provision in the antenuptial agreement that states, “The parties hereto covenant, agree and understand that the value of the aforementioned real property and motorcycle dealership business at the time of the signing of this agreement is fully and accurately set forth in Exhibit ‘A’ attached hereto and made part hereof.” Agreement, at 4. Evidently, it was Mr. Williamson’s intent to exclude from the marital estate, through the execution of the antenuptial agreement, the value of all of the property listed in Exhibit A.

In Raiken v. Mellon, 399 Pa.Super. 192, 582 A.2d 11 (1990), this Court stated:

Prenuptial agreements are contracts, and, as such, should be evaluated under the same criteria as are applicable to other types of contracts. When interpreting a prenuptial agreement, the court, as in dealing with an ordinary contract, must determine the intention of the parties. When the words of a contract are clear and unambiguous, the intent of the parties is to be discovered from the express language of the agreement. Where ambiguity exists, however, the courts are free to construe the terms against the drafter and to consider extrinsic evidence in so doing.

Id., 399 Pa.Superior Ct. at 197-198, 582 A.2d at 13 (citations omitted).

The evidence in this case provides ample support for the trial court’s conclusion that at the time of the marriage, Mr. Williamson’s business was worth $65,000.00. This Court cannot help but be persuaded by the original valuation of Mr. Williamson’s business. The document titled “Financial Statement for Individual Partnership or Corporation” estimated Mr. Williamson’s net worth to be $67,990.21. This paper is attached to the parties’ antenuptial agreement. The financial statement, which intended to protect Mr. Williamson’s pre-marriage interests, is dated October 24, 1972. He married Mrs. Haas on December 23, 1972. This piece of evidence alone lends more than sufficient support for the trial court’s conclusion that the ante-nuptial agreement sheltered Mr. Williamson’s interests to the extent of $65,000.00.

The trial court clearly considered the wording of the antenuptial agreement, its purported intent, the contents of the financial statement and the additional testimony gleaned at the hearing in this case. All of the relevant evidence was evaluated at the hearing and subsequently, presumably in conjunction with the parties’ post-trial claims. Following a lengthy discussion in its opinion, dated June 6, 1989, the trial court reiterated its conclusion that $65,000.00 represented a fair valuation of Mr. Williamson’s business.

Mr. Williamson’s business was sold for $130,000.00. The increase in value during the marriage, therefore, was $65,000.00. ($130,000.00 - $65,000.00 = $65,000.00). Because Mrs. Haas did not contribute substantially to the business, the trial court, in its discretion, effected an equitable distribution and awarded the entire value to Mr. Williamson. We find no error, either in the trial court’s valuation or in the distribution scheme. Furthermore, the trial court reasonably interpreted the antenuptial contract and we find no error in this regard. See Raiken v. Mellon, supra.

Unfortunately, despite our conclusion that the trial court’s scheme of equitable distribution was fair, we cannot affirm the trial court’s orders in their entirety. The trial court failed to correct its confessed error in including the 1987 Chevrolet van as a vehicle subject to distribution. See Trial court opinion, August 17, 1989, at 3. It is unclear whether the $18,000.00 value assigned to the vehicles existing at separation actually included the value of the van.

Since this Court cannot ignore an admitted mistake on the part of the trial court, we remand for consideration of this issue, and for possible re-valuation of Mr. Williamson’s interests.

For the foregoing reasons, we affirm the orders of the trial court in material part, but remand for clarification consistent with the dictates of this opinion.

Jurisdiction relinquished.

      . Kenneth Williamson is the appellant in this case. His appeal with this Court is docketed at 542 Harrisburg 1989. Joyce Williamson Haas, the appellee, filed a cross-appeal docketed at 562 Harrisburg 1989.

      . We note that Mr. Williamson’s argument makes a distinction without a difference. Presently, the trial court determined that Mrs. Haas was entitled to the stipulated value of the marital residence, $110,-000.00. The trial court ordered Mr. Williamson to continue to pay the mortgage on the residence which totalled approximately $27,500.00. If Mrs. Haas decided to sell the property, the mortgage would be satisfied from the proceeds of the sale of the home, and Mr. Williamson would then pay a sum of money equal to the satisfied mortgage directly to his ex-wife in accordance with the old mortgage terms. Similarly, the trial court could have effected the same result by awarding to Mrs. Haas the marital residence valued at $82,500.00, the stipulated value of the residence less the outstanding mortgage, and then ordering Mr. Williamson to pay his ex-wife a sum of $27,500 or by distributing to her other marital property valued at $27,500. Pursuant to this scheme, Mrs. Haas would be responsible for the mortgage. However, under either method of distribution, the net result would be the same.

      . The amount of the award of counsel fees, costs and expenses is also within the discretion of the trial court and is subject to an abuse of discretion standard on appeal. Thomson v. Thomson, 359 Pa.Super. 540, 519 A.2d 483 (1986); Benson v. Benson, 357 Pa.Super. 166, 515 A.2d 917 (1986).

      . See N.T., December 9, 1988, at 96-97.

      . See N.T., December 8, 1988, at 105-108.

      . Interestingly, Mrs. Haas advances an argument in her brief to the effect that the value of her time-share interest in the Shawnee condominium is less than that which the trial court assigned to it. See Appellee’s brief, at 41-42. She asserts that the time-share interest carried with it a debt of $5,976.00, which debt should have been deducted pursuant to 23 P.S. § 401(e)(7). We will not reach the merits of this issue, because Mrs. Haas is not an aggrieved party within the meaning of Pa.R.A.P. 501. See Green by Green v. SEPTA, 380 Pa.Super. 268, 551 A.2d 578 (1988). We fail to see how Mrs. Haas, the prevailing party here, was in any way adversely affected by the trial court’s valuation. Numbers aside, the trial court simply effected an equitable distribution. It also took into account testimony and documented evidence by which it could justly conclude that $7,900.00 was a fair valuation for the time-share interest. We note that Mrs. Haas, by her own testimony, valued the interest at $7,900.00. N.T., December 8, 1988, at 108.

      . Mrs. Haas basically argues that the “other assets" listed on the financial statement are personal property and not business assets. We agree with Mr. Williamson that this interpretation is a matter of labeling and largely an exercise in semantics.


author: OLSZEWSKI, Judge:

text:
    586 A.2d 976
    COMMONWEALTH of Pennsylvania v. Deborah TUNNICLIFF, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 14, 1991.
    Filed Feb. 21, 1991.

      Maureen T. Beirne, Athens, for appellant.
    Robert Fleury, Asst. Dist. Atty., Troy, for Com., appellee.
    Before OLSZEWSKI, HUDOCK and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order of the trial court dismissing Deborah Tunnicliff’s petition for relief under the provisions of the Post Conviction Relief Act (PCRA). Tunnicliff pled guilty to murder in the third degree [18 Pa.C.S.A. § 2502(c) ], arson [18 Pa.C.S.A. § 3301(c) ] and burglary [18 Pa.C.S.A. § 3502]. The trial court sentenced Tunnicliff to concurrent, 10-to-20 year terms of incarceration for the murder and arson offenses, followed by a 6-to-15 year term for the burglary offense. No petition to modify sentence was filed by Tunnicliff s trial counsel.

Tunnicliff filed a pro se petition under the PCRA [42 Pa.C.S.A. § 9541 et seq], alleging ineffectiveness of counsel due to the failure to file a petition to modify sentence and requesting that counsel be appointed as she was indigent. The trial court dismissed Tunnicliff s petition as meritless without appointing counsel. Tunnicliff filed a pro se notice of appeal and was ordered to file a Pa.R.A.P. 1925(b) statement with the trial court specifying the matters complained of on appeal. Tunnicliff filed the Rule 1925(b) statement, pro se, with the prothonotary’s office instead of with the trial court. Tunnicliff subsequently petitioned for the appointment of counsel, alleging the same facts to establish her indigence which had been asserted in her initial petition; this time the trial court appointed counsel. The trial court filed a statement pursuant to Pa.R.A.P. 1925(a) requesting the Superior Court to consider all of Tunnicliff s contentions on appeal to be waived due to her failure to file the 1925(b) statement with the trial court. As discussed below, we will not hold Tunnicliff s arguments to be waived and remand for a hearing on the merits of her PCRA petition.

Tunnicliff first contends that she was entitled, as of right, to the appointment of counsel to advise her during the initial PCRA petition. The Commonwealth concedes that Tunnicliff was entitled to counsel, and acquiesces in her request for a remand to the trial court based upon this defect. A trial court may dismiss a PCRA petition without a hearing in certain situations. Pa.R.Crim.P. 1507(a), 42 Pa.C.S.A. The comments following Rule 1507 indicate that Pa.R.Crim.P. 1504 also impacts upon these cases. That rule provides that where a petitioner satisfies the trial judge that she is indigent, the judge shall appoint counsel. Pa.R. Crim.P. 1504(a), 42 Pa.C.S.A. The rule is drafted in mandatory language.

It is apparent from the trial court’s appointment of counsel for Tunnicliff to pursue this appeal that she is indigent. Both requests for appointment of counsel allege the same facts; if Tunnicliff deserves counsel now, she deserved counsel when the request was first made. We therefore remand to the trial court so that Tunnicliff may present her PCRA petition with the benefit of advice of counsel.

Finally, we will not hold that Tunnicliff s failure to file a Rule 1925(b) statement with the trial court constitutes a waiver of her claims. The trial court ordered Tunnicliff to file the statement by May 28, 1990. Tunnicliff filed such a statement, pro se, with the prothonotary instead of the trial court on May 21, 1990. Counsel was appointed for Tunnicliff on June 8, 1990. We cannot concur with Tunnicliff s counsel’s contention that this chronology entitled counsel to “fairly and justly assume” that the trial court’s order had been complied with. Where counsel is appointed in midstream following the filing of pro se pleadings, we believe it incumbent upon counsel to ascertain the true state of affairs. Nonetheless, we must also attribute a portion of the blame for this failure to the trial court’s erroneous initial denial of Tunnicliff’s request for counsel.

Defense counsel has also requested that she be permitted to withdraw from this case as she believes that all issues Tunnicliff wishes the PCRA court to review are meritless. We believe this request to withdraw is more properly presented to the PCRA court upon remand.

Order vacated and case remanded for proceedings in accord with the above decision. Jurisdiction relinquished.

      . We note that this remand is in accord with prior practice under the PCHA, 42 Pa.C.S.A. § 9549 (repealed) and former Pa.R.Crim.P. 1503(a) (rescinded). See, Commonwealth v. Logan, 370 Pa.Super. 348, 536 A.2d 439 (1988) (trial court may dismiss PCHA petition as frivolous only after petitioner has full, fair and counseled opportunity to present claims).