source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    525 A.2d 772
    Karen M. Albertson WIEGAND v. Raymond A. WIEGAND, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1986.
    Filed May 11, 1987.

      Scott D. Galloway, Springfield, for appellant.
    Charles F. Mayer, Media, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and BECK, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an order entered upon the recommendations of a Master for equitable distribution. Appellant raises two issues: 1) whether he has waived all issues on appeal for failure to file exceptions to the Master’s Report pursuant to Pa.R.C.P. 1920.55(a); and 2) whether the trial court lacked jurisdiction because the property to be equitably distributed had been the subject of a prior discharge in bankruptcy. We affirm.

On August 14, 1980, appellee filed a complaint in divorce and requested equitable distribution, counsel fees, and alimony. On April 21, 1983, a divorce decree was enteréd, but the court retained jurisdiction to consider the economic claims. Thereafter, a Master was appointed and a hearing was held on January 23, 1986. On January 28, 1986, the Master filed his report which included a cover page stating:

You are hereby notified that a Notice of Demand for Hearing may be filed with the Office of Judicial Support not later than the 18th day of February, 1986 unless the Court of Common Pleas, upon cause shown, shall extend the time for filing such Notice of Demand for Hearing____ If no written appeal to the Court is filed within the time permitted, as above set forth, the Court, without further notice to you, shall enter an appropriate final order. *

On February 6, 1986, appellant claims to have written to the Master, individually, requesting a 60 day extension to file the Notice of Demand for Hearing due to certain enumerated reasons. Because no exceptions had been filed to the Master’s Report, on February 19,1986, the trial court entered an order upon the Master’s recommendations. Appellant has appealed from the order of February 19, 1986.

Appellee argues that the appeal should be dismissed because appellant failed to file exceptions to the Master’s Report as required by Pa.R.C.P. 1920.55. Appellant, however, contends that his letter of February 6, 1986 to the Master should be considered as both a request for extension of time to file a Notice of Demand for Hearing and as exceptions to the Master’s Report. Appellant also argues that the Master had a duty to advise him of his erroneous filing or, alternatively, forward it to the trial judge. And finally, appellant asserts that he, acting pro se, should not be penalized for his lack of legal knowledge.

Pa.R.A.P. 1921 states that the record on appeal shall consist of the original papers and exhibits filed in the trial court. The letter of February 6, 1986 which appellant argues we should consider as exceptions to the Master’s Report was never filed in the trial court and is not included in the original record certified to us. Although appellant includes a copy of this letter in his reproduced record, simply reproducing the letter does not make it part of the record before us. Pittsburgh’s Airport Motel, Inc. v. Airport Asphalt and Excavating Co., 322 Pa.Super. 149, 469 A.2d 226 (1983). This Court cannot consider facts not of record which are set forth in a party’s brief. Commonwealth v. Stanton, 294 Pa.Super. 516, 440 A.2d 585 (1982). Therefore, we can give no consideration to the letter of February 6, 1986, and we do not reach the question of whether the letter constitutes exceptions for purposes of Pa.R.C.P. 1920.55.

We also find no merit to appellant’s arguments that he should be excused from the necessity of filing exceptions because the Master neither told him that he had improperly filed the letter nor himself gave the letter to the judge or because he is a layperson unfamiliar with legal technicalities. The obligation properly to file pleadings, motions, and exceptions is on the parties. When a party chooses to represent himself, as here, he cannot impose on the necessarily impartial court or master the responsibility to act as the party’s counsel and direct him repeatedly how to proceed or to proceed for him. When a party decides to act on his own behalf, he assumes the risk of his own lack of professional, legal training. Moreover, in this case the Master had already instructed appellant where and when to file exceptions and had informed appellant of the necessity of filing exceptions by virtue of the cover letter to the Master’s Report. Finally, even if the Master had given the letter of February 6, 1986 to the trial judge as appellant argues he should have, the exceptions (assuming, without deciding that the letter constituted exceptions) still would not have been filed because handing a motion to the judge does not constitute filing it. Commonwealth v. Nixon, 311 Pa.Super. 450, 457 A.2d 972 (1983).

Appellant’s second argument, that the Delaware County Court of Common Pleas lacked subject matter jurisdiction over the property because of the bankruptcy proceedings, is entirely without merit. An issue of subject matter jurisdiction is limited to the question of the court’s power to determine controversies of the general class to which the case belongs. Nagle v. American Casualty Company, 317 Pa.Super. 164, 463 A.2d 1136 (1983). The trial court has jurisdiction of divorce actions. Laczkowski v. Laczkowski, 344 Pa.Super. 154, 496 A.2d 56 (1985). Therefore, despite any bankruptcy proceedings, the trial court had jurisdiction in this case.

The issues raised in this appeal are wholely frivolous, and therefore, we remand to the trial court for a hearing to determine the reasonable amount of appellee’s counsel fees which shall be taxed against the appellant pursuant to Pa.R.A.P. 2744(1).

Order affirmed. Remanded for a hearing to determine the amount of counsel fees to be taxed against appellant. Jurisdiction is relinquished.

      . Appellant is represented by counsel on appeal.


text:
    525 A.2d 775
    COMMONWEALTH of Pennsylvania v. Gregory M. FISCHL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 28, 1986.
    Filed May 11, 1987.

      John E. Freund, III, Allentown, for appellant.
    Before CIRILLO, President Judge, and ROWLEY and BECK, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from the judgment of sentence imposed on appellant after he was convicted of operating a motor vehicle while under suspension for driving under the influence of alcohol (“DUI”). Appellant was sentenced to 90 days confinement and fined $1,000. Post-trial motions were timely filed, but denied and a timely appeal was then taken.

On January 5, 1983, appellant was convicted of DUI which resulted in a six month suspension of his driving privileges, effective February 28, 1983. On July 10, 1983, during the period of suspension, appellant was stopped by a Pennsylvania State Trooper because the tires on appellant’s car were studded in violation of § 4525 of the Pennsylvania Motor Vehicle Code. When asked, appellant first stated that he left his driver’s license at home. The trooper then radioed his headquarters and was told that appellant’s license had been suspended, but was not told the reason therefor. When confronted with this information, appellant stated that his license had been suspended for DUI. At that time appellant was issued a citation for driving with studded tires to which he pled guilty. Subsequently, after the trooper had received confirmation from the Bureau of Motor Vehicles, a second citation was issued to appellant for driving while under suspension for DUI in violation of § 1543(b) of the Motor Vehicle Code. The District Justice found appellant guilty as charged. Appellant then appealed to the Court of Common Pleas which, subsequent to a hearing on the issues raised, dismissed the appeal. After the denial of his post-trial motions and his sentencing, appellant appealed to this Court seeking reversal of his conviction and discharge or a new trial by jury.

Four issues are presented for our review. The first two allege that the prosecution under § 1543(b) should be quashed (1) because the trooper issued the second citation late in violation of Pa.R.Crim.P. 51 and (2) that his prosecution is barred under § 110 of the Pa. Crimes Code. The third issue raised is that appellant was unconstitutionally denied a jury trial. The last issue argued is that application of § 1543(b) of the Motor Vehicle Code is a violation of the prohibition against ex post facto laws.

In his first issue, appellant claims that the trooper's failure to issue the second citation at the time he was stopped for the studded tires offense is a violation of the compulsory joinder rules and § 110 of the Crimes Code, 18 Pa.C.S. § 110. Appellant relies on Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), reinstated on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), which held that the constitutional provisions against double jeopardy require that all known charges arising from a single criminal episode be brought against the defendant in a single proceeding. This principle is also set forth in § 110 of the Pennsylvania Crimes Code.

A prior panel of this Court, in Commonwealth v. Hoburn, 335 Pa.Super. 536, 485 A.2d 24 (1984), has addressed this issue. Relying on our Supreme Court's decision in Commonwealth v. Breitegan, 500 Pa. 384, 456 A.2d 1340, cert. denied, 464 U.S. 991, 104 S.Ct. 480, 78 L.Ed.2d 678 (1983), the panel in Hoburn held that a prior conviction for a summary offense under the Motor Vehicle Code does not bar, under § 110, a subsequent prosecution for a different summary offense under the Motor Vehicle Code arising out of the same criminal episode. This prior panel decision is binding on us and is dispositive of the instant case since both offenses that appellant is charged with are summary.

However, we are of the opinion that the same result would also be reached by the application of § 110(l)(iii)(A) which provides an exception to the compulsory joinder rule where

the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil____

18 Pa.C.S. § 110(1)(iii)(A). The first offense that appellant was charged with, violation of § 4525(c) of the Motor Vehicle Code, requires proof that appellant drove with studded tires during the period from April 16 to October 31. 75 Pa.C.S. § 4525(c). The second offense that appellant was charged with, violation of § 1543(b) of the Motor Vehicle Code, requires proof that appellant’s license had been suspended for violating § 3731 of the Motor Vehicle Code (relating to driving under the influence of alcohol or a controlled substance). 75 Pa.C.S. § 1543(b). Though both offenses arise out of the same criminal episode, each requires proof of a fact not required by the other. Further, the laws defining these offenses obviously are intended to prevent substantially different harms. Thus, we find that the exception provided in § 110(l)(iii)(A) applies and there is no merit to appellant’s argument.

Appellant next requests that his conviction pursuant to § 1543(b) of the Pennsylvania Motor Vehicle Code be reversed because the delayed issuance of the second citation was a violation of Pa.R.Crim.P. 51. Rule 51A(1)(a) provides that in cases of traffic offenses, a police officer, in uniform, shall issue the citation directly to the defendant at the time of the offense. Appellant argues that since he notified the trooper of his suspension for DUI at the time of the offense and since the trooper was in uniform, the citation for violation of § 1543(b) should have been issued at that time. In support of this position, appellant cites Commonwealth v. Jonnet, 265 Pa.Super. 315, 401 A.2d 1228 (1979), which holds that strict compliance with the letter of Rule 51 must be demonstrated.

The trooper testified that he did hot issue the second citation at the time of the offense for several reasons: he did not know officially the reason for appellant’s suspension (N.T., p. 16); appellant had initially lied to the trooper by saying that his license was at home and thus the trooper had reason to disbelieve him (id,.)) the trooper did not know which section of the Motor Vehicle Code had been violated, § 1543(a) for driving under suspension, or § 1543(b) for driving while suspended for DUI (id. at 19); and, the trooper had procedure to follow (id.). We further note that the trooper promptly sent a written request to the Bureau of Motor Vehicles to determine the status of appellant’s license. Upon written confirmation of appellant’s DUI suspension, the second citation was issued to him.

Rule 51A(l)(b) provides exceptions to the rule that citations shall be issued to the defendant at the time of the offense:

A citation (rather than a complaint) shall be filed with an issuing authority by a police officer when the offense charged is a violation of a traffic ordinance or is a summary offense under the Vehicle Code, when the police officer is not in uniform, or when it is not feasible for him to issue a citation to the defendant, or when evidence is discovered after the issuance of a citation which gives rise to additional summary charges against the defendant resulting from the same incident ... (emphasis added).

We find that under the circumstances of the instant case, it was not feasible for the trooper to issue the second citation at the time of the occurrence. The trooper properly waited until he had received written confirmation of appellant’s suspension from the Bureau of Motor Vehicles and thus was able to cite the section of the Code that was actually violated. Thus, appellant is not entitled to have his conviction pursuant to § 1543(b) reversed.

The third issue raised involves appellant’s sentence on the charge of driving while under suspension for DUI. Appellant claims that the imposition of a $1,000 fine in addition to the 90 days incarceration makes the offense “serious” and thus he is entitled to a jury trial. Appellant acknowledges that the factor distinguishing serious from petty offenses is an authorized penalty of more than six months imprisonment. Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86 (1974). Under this standard, appellant is not entitled to a jury trial.

Appellant further argues, however, that the additional $1,000 fine is so substantial as to render the offense serious. This same issue has already been decided by this Court in Eichenlaub v. Eichenlaub, 340 Pa.Super. 552, 490 A.2d 918 (1985). In that case, appellant challenged the Protection from Abuse Act which provides for a maximum penalty of up to six months imprisonment or a fine not to exceed $1,000, or both. Affirming the trial court’s denial of appellant’s motion for a jury trial, we held that the authorized $1,000 fine did not render the crime serious and that appellant was thus not entitled to a jury trial. Thus, appellant herein is not entitled to relief under this claim.

After a thorough review of the record and due consideration of appellant’s last issue alleging a violation of the prohibition of the ex post facto laws, we find that the trial court has adequately discussed and correctly decided this issue in its July 3, 1984 Opinion.

For all of these reasons, we affirm the judgment of sentence imposed by the trial court.

Judgment of sentence affirmed.

      . See Act of Nov. 25, 1970, P.L. 707, No. 230, as amended 1979, Nov. 10, P.L. 460, No. 95, 75 Pa.C.S. § 4525(e)(1); 75 Pa.C.S. § 1543(b).

      . Upon conviction of violating § 1543(b), a person shall "be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days." 75 Pa.C.S. § 1543(b).

      . Act of Oct. 7, 1976, P.L. 1090, No. 218 § 1, as amended, Act of June 23, 1978, P.L. 513, No. 81, § 1, 35 P.S., §§ 10181-90.


author: PER CURIAM: WIEAND, Judge,

text:
    525 A.2d 778
    In the Interest of A.V. and J.V., Minor Children. Appeal of T.V., Natural Mother.
    Superior Court of Pennsylvania.
    Submitted Sept. 4, 1986.
    Filed May 5, 1987.
    Petition for Allowance of Appeal Denied Oct. 19,1987.
    Before MARKER, Judge.
    Gary A. Falatovich, Greensburg, for appellant.
    Before CAVANAUGH, WIEAND and JOHNSON, JJ.
   PER CURIAM:

Order Affirmed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

The majority permits a mother, who is now separated from her husband, to be deprived of the custody of her young son and daughter because of physical abuse committed by the mother’s husband upon one of the children. My review of the record fails to disclose that the children are dependent or that the mother has done or has failed to do anything which requires that her children be taken from her and given to another.

The appellant, T.V., and her husband, W.V., are the parents of two children. J.V. was born June 11, 1982, and A.V. was born April 30, 1983. On October 31, 1983, A.V., then six months old, was taken by her mother to Dr. Elias Alsabti because the child was suffering from a fever and respiratory problems. Believing that the child might be suffering from pneumonia, Dr. Alsabti ordered a chest x-ray. The x-ray revealed various fractures of the rib cage. Suspecting possible child abuse, Dr. Alsabti ordered a complete set of x-rays. These x-rays disclosed three fractured ribs in various stages of healing; a fractured left femur, approximately four to six weeks old; a fractured radius, about three months old; and, fractures of the tibia, about four weeks old.

After he had made these findings, Dr. Alsabti contacted the Westmoreland County Children’s Bureau and informed a representative thereof that A.V. had sustained seven separate fractures which he believed to be the result of abuse. The Bureau initiated dependency proceedings pursuant to the Juvenile Act, 42 Pa.C.S. § 6301 et seq., and the Child Abuse Act of November 26, 1975, P.L. 438, 11 P.S. § 2201 et seq.

The Child Protective Services Law defines child abuse as follows:

[S]erious physical or mental injury which is not explained by the available medical history as being accidental, or sexual abuse or sexual exploitation, or serious physical neglect, of a child under 18 years of age, if the injury, abuse or neglect has been caused by the acts or omissions of the child’s parents or by a person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parent provided, however, no child shall be deemed to be. physically or mentally abused for the sole reason he is in good faith being furnished treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof or is not provided specified medical treatment in the practice of religious beliefs, or solely on the grounds of environmental factors which are beyond the control of the person responsible for the child’s welfare such as inadequate housing, furnishings, income, clothing and medical care.

Act of November 26, 1975, supra, § 3, 11 P.S. § 2203. The Juvenile Act provides, in pertinent part, that a dependent child is a child who “is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals.” 42 Pa.C.S. § 6302. Under this statutory provision, a child is deemed dependent if (1) the child is presently without proper parental care, and (2) such care is not immediately available. In re Yeager, 309 Pa.Super. 491, 495, 455 A.2d 717, 719 (1983); In re Jackson, 302 Pa.Super. 369, 373, 448 A.2d 1087, 1090 (1982); In re Theresa E., 287 Pa.Super. 162, 178, 429 A.2d 1150, 1158 (1981); In re Black, 273 Pa.Super. 536, 543, 417 A.2d 1178, 1182 (1980). “The law is clear that a child should be removed from [his or her] parent’s custody and placed in the custody of a state agency only upon a showing that removal is clearly necessary for the child’s well-being. In addition, this court has held that clear necessity for removal is not shown until the hearing court determines that alternative services that would enable the child to remain with her family are unfeasible.” In re K.B., 276 Pa.Super. 380, 393, 419 A.2d 508, 515 (1980). See: In re Breisch, 290 Pa.Super. 404, 413, 434 A.2d 815, 820 (1981).

Although our scope of review is broad, it is restricted by our inability to nullify the factfinding responsibility of the trial court. In re Barclay, 321 Pa.Super. 417, 425, 468 A.2d 778, 782 (1983); In re Frank W.D., 315 Pa.Super. 510, 517, 462 A.2d 708, 711 (1983); In re Black, supra, 273 Pa.Super.. at 543, 417 A.2d at 1182; In re Custody of Neal, 260 Pa.Super. 151, 152-153, 393 A.2d 1057, 1058 (1978). “We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him.” In re Frank W.D., supra 315 Pa.Super. at 517, 462 A.2d at 711. Therefore, we will not overrule his findings so long as they are supported by competent evidence. Id. Because of the policy of preserving family unity whenever possible, a finding of abuse and/or dependency must be based on “clear and convincing” evidence. In re Leslie H., 329 Pa.Super. 453, 456, 478 A.2d 876, 878 (1984); In re Haynes, 326 Pa.Super. 311, 315, 473 A.2d 1365, 1366 (1983); In re Barclay, supra, 321 Pa.Super. at 422, 468 A.2d at 780; In re Frank W.D., supra, 315 Pa.Super. at 516, 462 A.2d at 711; In re Long, 313 Pa.Super. 47, 51, 459 A.2d 403, 405 (1983); In re Yeager, supra; In re Jackson, supra, 301 Pa.Super. at 373, 448 A.2d at 1089; In re Mark T., 296 Pa.Super. 533, 537, 442 A.2d 1179, 1180 (1982); In re Breisch, supra, 290 Pa.Super. at 409, 434 A.2d at 818; In re H.B., 293 Pa.Super. 109, 114, 437 A.2d 1229, 1232 (1981); In re A.E.M., J.J.M., S.L.M., 288 Pa.Super. 284, 288, 431 A.2d 1049, 1051 (1981); In re Theresa E., supra, 287 Pa.Super. at 172, 429 A.2d at 1155; In re S.M.S. 14599-A, 284 Pa.Super. 9, 17, 424 A.2d 1365, 1369 (1981); In re Black, supra, 273 Pa.Super. at 542, 417 A.2d at 1182; In re Pernishek, 268 Pa.Super. 447, 458, 408 A.2d 872, 878 (1979); In re Whittle, 263 Pa.Super. 312, 316, 397 A.2d 1225, 1226 (1979); In re LaRue, 244 Pa.Super. 218, 228, 366 A.2d 1271, 1278 (1976); 42 Pa.C.S. § 6341(c). This requires that there be “testimony that is so direct and unambiguous as to enable the trier of fact to come to a sure determination, without conjecture, of the truth of the exact facts at issue.” In re Frank W.D., supra, 315 Pa.Super. at 516, 462 A.2d at 711 (citations omitted).

Although the appellant-mother concedes that her infant daughter was abused by the child’s father, she challenges the hearing court’s finding that she was an abuser by omission. The trial court’s use of the term “abuser by omission” was inappropriate. The connotation that an innocent parent has an absolute duty to prevent child abuse by the parent’s spouse and that the parent will be branded an “abuser by omission” for failing to prevent such abuse is not consistent with the decided cases. Those cases hold, rather, that a parent has a duty to protect his or her child from another’s abuse when the parent knows or should know that the child is being abused by such other person.

In re Barclay, supra, was a case in which a mother had been aware that her husband had been inflicting corporal punishment upon her small children but had done nothing to protect them from excessive punishment. The Court concluded that the children had been both abused and dependent. Crucial to the court’s determination was the admission by the mother that she had known her husband had abused the children and that she nevertheless had refused to leave the home in which he resided. Id. 321 Pa.Super. at 423, 468 A.2d at 781. In re K.B., supra, is also illustrative. There, a mother who initially had been unaware of the fact that her husband had been sexually abusing her daughter testified, after becoming aware of the charges against her husband, that if her husband were to be released from jail, she would resume cohabitation with him. Id. 276 Pa.Super. at 391, 419 A.2d 508. The Court concluded that the child was dependent, as the mother had demonstrated that she would voluntarily and knowingly expose her child again to the same sexual abuse to which the mother’s husband had previously subjected the child. Because the mother had demonstrated an unwillingness to provide her child with the proper parental care by taking precautions to prevent further assault, the child was determined to be dependent. Finally, in the case of In re S.M.S., supra, the mother had actual knowledge that her eleven month old son was being physically abused by the child's father; however, she took absolutely no steps to protect her son from such abuse. Therefore, the child was found to be dependent. See also: Commonwealth v. Cardwell, 357 Pa.Super. 38, 515 A.2d 311 (1986).

In the instant case, the evidence does not show that appellant knew or should have known that A.V. was being abused physically. Although there was evidence that appellant herself had been abused by her husband, there was no evidence that she had ever observed him manifest abusive tendencies toward his daughter. The several bruises which appellant had observed on the child had been explained to the mother’s satisfaction and she had not suspected that the child had been abused physically by the father. T.V.’s failure to detect abuse under the circumstances of this case did not imply that she had failed to exercise proper parental care of A.V. or that A.V. was dependent. In fact, once T.V. had been apprised of the true nature of A.V.’s injuries, she affirmatively demonstrated that she was willing and capable of providing A.V. with proper parental care by taking steps to prevent further abuse by W.V. These precautions included a discontinuation of cohabitation with her husband.

Dr. Elias Alsabti, the family pediatrician, testified that A.V. had been seen by him in his office on three separate occasions and that she had always appeared “healthy and well-taken care of.” He also testified that T.V. was “very well protective” of her child. With respect to the child’s injuries, Dr. Alsabti testified that “[w]ith children you really can not tell unless you expect something.”

The majority relies upon testimony by Dr. Rashid, a radiologist, that A.V.’s fractures could not have been caused by the dropping of a toy truck or by her brother’s falling upon her. This evidence tended to show that A.V. had been abused — a fact which appellant does not dispute. This fact, however, does not establish that appellant knew that her husband was abusing their child. Appellant was not medically trained, and Dr. Alsabti testified that unless one anticipated and was looking for signs of abuse, the explanations given to appellant for her child’s bruises would have seemed entirely reasonable. The evidence also showed that when T.V. detected her child’s bruises she immediately called her mother for advice. Appellant’s mother testified that upon receiving the call, she went to her daughter’s apartment and that when she arrived, the child was not crying excessively and did not appear to be hurt. Because the bruises did not seem serious, neither woman deemed it necessary to take A.V. to the hospital. The testimony was also that neither T.V. nor her mother had ever observed impairment of the child’s movements sufficient to alert them to broken bones or other injury. Even Dr. Alsabti and several other physicians who saw the child during the period when manifestations thereof would have been detectable failed to diagnose a case of physical abuse. The evidence was undisputed that the diagnosis of a fracture in a non-ambulatory child is difficult at best.

For all of these reasons, I am unable to join the majority’s conclusion that appellant should be held accountable in some way for injuries to her child with which she had nothing to do and which were ultimately detected only by x-rays. Instead, I would conclude that appellant’s failure to detect the signs of abuse, under the circumstances of this ease, was not an adequate basis for finding that she was an abuser by omission or that A.V. was a dependent child. The child was a non-ambulatory infant, and there was no evidence that her mother had failed to act reasonably to care for and protect the child in light of the knowledge which she possessed at any particular time. Appellant is now living separate and apart from her husband, and the evidence does not suggest that she is unable or unwilling to provide proper parental care or control for her daughter. A mother should not be deprived of her child, nor the child of its mother’s love and care, merely because, as one psychologist opined, the mother has a passive personality. Therefore, I am persuaded that the trial court’s findings of dependency and abuse with respect to appellant’s daughter were not supported by any evidence, much less were its findings supported by “clear and convincing evidence.”

Similarly, the evidence failed to support the trial court’s finding that J.V. was a dependent child. There is no evidence whatsoever that this child was “without proper care or control.” Nor is there evidence that he was abused physically or “by omission” by either his mother or his father. In short, J.V. was declared dependent because his sister had been abused by the children’s father. This was improper. A child cannot properly be found dependent solely because a sibling is dependent. This Court has said:

It is true that a finding of dependency can be made on the basis of prognostic evidence. In the Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980) (finding of dependency of newborn infant affirmed where parents’ two previous children died because of improper care and precautions taken by the parents); In the Matter of DeSavage, 241 Pa.Super. 174, 360 A.2d 237 (1976) (prognostic evidence acceptable but inadequate to support determination of dependency where evidence mainly dealt with inexperience of youthful parents of newborn infant). However, a child should not be found dependent on the basis of little or no evidence simply because his siblings are dependent. See In the Matter of George, 272 Pa.Super. 173, 414 A.2d 1063 (1979). A finding that a child is without proper parental care is very serious, for it may color the child’s future attitude toward and relationship with his parents.

In re Theresa E., supra, 287 Pa.Super. at 173, 429 A.2d at 1156 (emphasis added).

There was no evidence whatsoever that appellant had failed to provide adequate parental care for her son. The psychologist upon whose testimony the Children’s Bureau relied admitted in her testimony that she had not had an opportunity to observe the nature of appellant’s relationship with her son. There also was no evidence that J.V. had been adversely affected by the abuse of his sister. Nevertheless, the trial court concluded that J.V. was a dependent child because there existed a possibility that if his father at some future time attempted to abuse him, his mother, who had a passive personality, would be unable to protect him. This was a wholly inadequate basis upon which to determine that J.V. was dependent. See: In re Jackson, supra.

A court may find a child dependent only upon clear and convincing evidence which demonstrates that a child is presently without proper parental care and that such care is not immediately available. With respect to the children in this case, neither fact was proven. A child should not be separated from a parent unless separation is clearly necessary (i.e., no other alternatives are feasible). In re Pernishek, supra, 268 Pa.Super. at 457, 408 A.2d at 877; 42 Pa.C.S.A. §§ 6301(b)(1) and (3) and 6341(c). See also: Rinker Appeal, 180 Pa.Super. 143, 148, 117 A.2d 780, 785 (1955). The necessity for separating the children from their mother in this case was simply not shown. Appellant has been separated from and no longer lives with her husband, and there is a total lack of evidence to support a finding that appellant cannot or will not adequately care for her children.

I dissent.

      . On one occasion, T.V. was told that A.V.’s bruises had resulted when she was accidentally struck with a toy truck by her brother. On another occasion, T.V. was told that A.V.’s bruise had been caused by her brothers’ falling on her while she was lying on the floor.


author: PER CURIAM:

text:
    525 A.2d 782
    COMMONWEALTH of Pennsylvania v. Joe N. BECKHAM, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 17, 1987.
    Filed May 13, 1987.

      Mitchell S. Strutin, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, OLSZEWSKI and CERCONE, JJ.
   PER CURIAM:

Appellant Joe N. Beckham was arrested and charged with robbery, possessing instruments of crime and related offenses. On June 12 and 13, 1985, appellant was tried and convicted by a jury of robbery and possessing instruments of crime, generally. Trial counsel filed post-verdict motions. On November 18, 1985, the court held a hearing to determine the merit of the ineffectiveness claims at which trial counsel and an uncalled defense witness testified. The court appointed new counsel who filed an application for reduction of bail which was denied. Defendant then re-tamed a third attorney who filed supplemental post-verdict motions alleging trial counsel’s ineffectiveness for failing to subpoena a witness at trial. On September 9, 1986, the court denied defendant’s motion for a new trial and sentenced him to five to ten years imprisonment for robbery and one to two years concurrent imprisonment for possessing an instrument of crime.

Appellant now claims that trial counsel rendered ineffective assistance when he did not issue a subpoena to compel the attendance, at trial, of a defense witness who would have testified as to a material issue, that is, the identification of appellant by the robbery victim.

Our scope of appellate review in cases such as this has been succinctly set forth as follows:

In determining the effectiveness of appellant’s counsel “[o]ur task ... encompasses both an independent review of the record, ... and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). The standard by which a trial attorney’s performance is judged is well-established:

“[Ojur inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis.” (Emphasis in the original.) 427 Pa. at 604-605, 235 A.2d at 352-53; see Commonwealth v. Moore, 466 Pa. 510, 353 A.2d 808 (1976); Commonwealth v. Abney, 465 Pa. 304, 350 A.2d 407 (1976).

Commonwealth v. Charleston, 251 Pa.Superior Ct. 311, 315-16, 380 A.2d 795, 797 (1977).

The victim’s trial testimony as to the relevant events were set forth by the lower court as follows:

In the late evening of January 14, 1985, Printis Hagen, an elderly man, opened the door of his apartment, where he lived alone, to face defendant whom he had known to live in an apartment in the same building and whom he believed had come upon hard times having been evicted shortly before. When he turned his back to admit him, defendant pulled out a gun and, telling him not to mention his name or he would be killed, he pushed Mr. Hagen into his bedroom, forced him to lay face down on the bed and bound his hands behind his back. Afterward, he ransacked the room, taking four hundred dollars and other items. After a parting salvo of threats that he would be killed if he reported it to the police, defendant left. Mr. Hagen managed to get to the apartment of his next door neighbor, who freed him of his bonds. Early in the morning of the next day, he secured defendant’s name from the apartment rental office and gave the name to police the following day.

The defense witness, Roger Bowser, who trial counsel failed to subpoena, admitted that he would have testified that he spoke with the victim after the attack and that the victim had told him that the perpetrators wore ski masks so he was unable to recognize who they were. Defense counsel had spoken with Mr. Bowser before the trial and had decided to present his testimony at trial for the defense. Mr. Bowser had assured trial counsel that he would be present and willing to testify as related. However, on the day he was scheduled to appear, Mr. Bowser did not in fact attend and counsel was unable to contact him.

The only testimony placing appellant at the scene of the crime was that provided by the victim. Thus, a determination of guilt or innocence turned largely on the credibility of appellant’s alibi witness, who absented himself from trial, and the victim. Appellant’s defense, therefore, was dependent on his ability to impeach Mr. Hagen.

When faced with a similar factual situation, the Pennsylvania Supreme Court stated,

If counsel’s decision not to secure [witness’s] appearance ... was based on a reassessment of its worth and a conclusion that it was of little or no value in the posture of this case, then that decision clearly had some reasonable basis designed to effectuate Twiggs’s interests. In such circumstances, counsel’s conduct would not constitute ineffectiveness. See Commonwealth ex rel. Washington v. Maroney, supra. Had counsel reached this decision on a basis designed to advance his client’s interest, this case would be analogous to those situations in which, as a matter of trial strategy, counsel decides not to call a witness at all. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Owens, 454 Pa. 268, 275, 312 A.2d 378, 382 (1973); Commonwealth v. Karchella, 449 Pa. 270, 296 A.2d 732 (1972); Commonwealth v. Ellis, 445 Pa. 307, 284 A.2d 735 (1971); Commonwealth v. Hawkins, 445 Pa. 279, 282, 284 A.2d 730 (1971).
If, however, counsel’s failure to seek compulsory process to obtain Gilmore’s testimony or to have his prior testimony read to the jury was the result of sloth or lack of awareness of the available alternatives, then his assistance was ineffective. In a case where virtually the only issue is the credibility of the Commonwealth’s witness versus that of the defendant, failure to explore all alternatives available to assure that the jury heard the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth’s witness’s truthfulness is ineffective assistance of counsel.

Commonwealth v. Twiggs, 460 Pa. 105, 110-11, 331 A.2d 440, 443 (1975).

We must determine, therefore, whether trial counsel’s reliance on a key witness’s promise to appear was unreasonable in light of his failure to invoke the authority of the court to compel attendance of that witness by the issuance of a subpoena.

It is apparent from our review of the record in this case that trial counsel’s stewardship was not only ineffective, but bungling at best. At the close of the first day of trial, counsel informed the court that a key witness, Mr. Bowser, had been subpoenaed to appear at 9:00 a.m. the following morning. He requested the court to continue the hearing until then so that he could present this witness’s testimony to the jury. It was later revealed that counsel had not, in fact, subpoenaed Mr. Bowser and he did not appear to testify at the second day of trial.

Counsel’s initial failure to subpoena Mr. Bowser was compounded by his untrue statement to the court that he had subpoenaed Mr. Bowser. Had counsel informed the court at that point that Mr. Bowser was not under subpoena, the court may have been alerted and taken steps to insure Mr. Bowser’s attendance, so as to avoid the situation with which we find this case.

Our review of the entire record in this case indicates that counsel did not consciously decide not to subpoena Mr. Bowser for any reason designed to effectuate the interests of his client. Rather, counsel failed to seek compulsory process to obtain the witness’s testimony as the result of the lack of diligence on his part. Appellee posits the argument that counsel may have refrained from subpoenaing Bowser for fear of alienating him. The record contains no basis for this speculation. At the posttrial hearing on this issue, trial counsel merely stated that he believed Bowser’s promise of attendance. The record provides us with no basis upon which we can conclude that counsel’s decision was designed to effectuate appellant’s interest.

Once we have determined that appellant’s claim of ineffectiveness is of arguable merit and that counsel had no reasonable tactical basis for the conduct complained of, we must finally determine whether appellant was prejudiced thereby. See Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). As previously discussed, Bowser’s testimony was the only evidence available to impeach the identification testimony of the complainant. As the primary issue in this case was the identification of appellant as the perpetrator, we are compelled to conclude that Bowser’s testimony, if made as asserted, and if believed, would have provided a reasonable doubt in the minds of the jurors as to appellant’s guilt. Counsel’s failure to secure Bowser’s testimony requires the result we reach herein.

Since we consider this failure to be sufficient to establish that trial counsel in this case was not constitutionally effective, we do not reach appellant’s claims of error in the jury instructions. Accord: Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976).

The order of the court below is reversed. Judgment of sentence is vacated and a new trial is granted. Jurisdiction relinquished.

      . While we do not normally look to the trial court to protect against actions by trial counsel which could be construed as ineffective assistance, the record in this case shows that in several instances the court did allow counsel to proceed in a procedurally inaccurate manner so as to protect against a future challenge to counsel’s effectiveness. For example, the court allowed the defense to proceed with alibi witnesses although the Commonwealth had not been given proper notice of defense’s intent to call them.
      This case exemplifies a glaring dereliction on the part of counsel in representing his client which jeopardized appellant’s right to exonerate himself on this crucial issue of identification.


author: CIRILLO, President Judge:

text:
    525 A.2d 785
    COMMONWEALTH of Pennsylvania v. Lawrence WEAVER, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 26, 1987.
    Filed May 15, 1987.

      Anthony D. Jackson, Philadelphia, for appellant.
    Michelle Monaco, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and TAMILIA and CERCONE, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence by the Court of Common Pleas of Philadelphia County. Appellant Lawrence Weaver was convicted of robbery, aggravated assault, and possession of an instrument of crime. We affirm.

Appellant raises two issues for review: (1) was trial counsel ineffective in failing to file a written motion to dismiss the charges against appellant pursuant to Pa.R. Crim.P. 1100(f); and (2) did the trial court err in denying appellant’s motion to dismiss the charges pursuant to Pa.R. Crim.P. 1100(f).

Because of our disposition of this matter we need not address these issues separately. The circumstances surrounding appellant’s arrest and conviction are well documented in both the record and the trial court’s opinion, and clearly indicate that any motion to dismiss under Pa.R. Crim.P. 1100(f) was without merit.

It is well settled in this Commonwealth that a person claiming ineffective assistance of counsel bears the burden of proof. Commonwealth v. Jones, 298 Pa.Super. 199, 205, 444 A.2d 729, 732 (1982). Additionally, counsel’s stewardship of the matter in question is presumed effective. Commonwealth v. Norris, 305 Pa.Super. 206, 210, 451 A.2d 494, 496 (1982).

In our review of an ineffectiveness claim we must first determine the threshold question of whether the legal claims underlying the assertions of ineffectiveness are of arguable merit. Commonwealth v. Pierce, 345 Pa.Super. 324, 327, 498 A.2d 423, 425 (1985) (en banc), allocatur granted, 510 Pa. 244, 507 A.2d 368 (1986). Counsel may never be held ineffective where the legal claim underlying the alleged ineffectiveness is baseless or meritless. Commonwealth v. Carroll, 355 Pa.Super. 569, 572, 513 A.2d 1069, 1070 (1986).

Once a determination has been made that the underlying claim has merit, we must decide whether the course of action chosen by counsel “had some reasonable basis aimed at promoting the defendant’s interests.” Commonwealth v. Pierce, 345 Pa.Super. at 327, 498 A.2d at 425.

Even if the underlying claim is found to have at least arguable merit, and counsel’s conduct was unreasonable, a litigant has an additional burden. He must show that counsel’s ineffectiveness so prejudiced his case that he was denied a fair trial. Commonwealth v. Pierce, 345 Pa.Super. at 329, 498 A.2d at 426.

Pa.R.Crim.P. 1100(a)(2) provides that a criminal trial must commence no later than 180 days from the date on which the complaint is filed. The Commonwealth may, upon petition, be granted an extension of time for trial if the court finds that the trial cannot be commenced within the prescribed period despite due diligence on the part of the Commonwealth. Pa.R.Crim.P. 1100(c)(3). The test for determining due diligence is one of “reasonableness under the circumstances,” Commonwealth v. Mayo, 344 Pa.Super. 336, 342, 496 A.2d 824, 827 (1985) (citing Commonwealth v. Wroten, 305 Pa.Super. 340, 451 A.2d 678 (1982)), and the burden of proving due diligence rests with the Commonwealth. Commonwealth v. Bulling, 331 Pa.Super. 84, 85, 480 A.2d 254, 257 (1984).

In addition to extensions to the Rule 1100 date, there may be periods of time excluded from the computation of the 180-day period. For example, any delay which results from the unavailability of the defendant or his attorney or from a continuance requested by the defendant’s attorney is excluded from the period. Pa.R.Crim.P. 1100(d)(3)(i), (ii).

If there is a Rule 1100 violation and the defendant is not brought to trial within the requisite period, he may apply to the court for dismissal of the complaint against him with prejudice. Pa.R.Crim.P. 1100(f).

Appellant was arrested and a complaint was filed on February 16, 1984. His mechanical Rule 1100 run date was August 14, 1984. At the pre-trial conference, a trial date was set for July 2, 1984. Prior to that date, appellant’s attorney requested permission to withdraw as counsel. At that time, the Commonwealth was ready to proceed to trial. On June 22, 1984, appellant’s counsel filed a motion to withdraw. On July 18, 1984, the Commonwealth filed a motion under Rule 1100(c)(1) to extend the Rule 1100 run date. On September 25, 1984, the court allowed appellant’s original counsel to withdraw and appointed new counsel. However, appellant’s new counsel was unavailable on that date. The court continued the case to October 11, 1984 at which time appellant’s counsel was granted a continuance to November 11, 1984 in order to complete discovery. On that same date, the Commonwealth amended its July 18 Rule 1100 motion for extension. On November 11, 1984, appellant’s new counsel appeared in court and stated that he did not represent the appellant. A public defender was then appointed as appellant's counsel. The court then set the trial date for March 25, 1985, that being the earliest possible trial date consistent with the court’s calendar. The Commonwealth then asked for a further extension under Rule 1100.

On March 18, 1985, the Commonwealth learned that one of it’s witnesses would be unavailable for trial. At the same time, defense counsel requested a lineup. The Commonwealth again amended its Rule 1100 petition. The court set June 11, 1985 as the earliest trial date consistent with the court’s calendar. On June 11, 1985, appellant’s counsel made a motion to dismiss which was denied, the court finding no Rule 1100 violation. Appellant was subsequently convicted of all charges.

The efforts of the Commonwealth to bring appellant to trial within the prescribed period are well documented. The trial court held that the Commonwealth had at all times acted with due diligence in bringing appellant to trial. We agree.

In reviewing the trial court’s finding that the Commonwealth acted with due diligence, we initially note that the decision to grant a Rule 1100 extension is within the trial court’s sound discretion and shall not be disturbed absent an abuse of discretion. Commonwealth v. Lohr, 503 Pa. 130, 139-40, 468 A.2d 1375, 1380 (1983).

It is clear from the record that nearly seven and one half months of the delay in bringing appellant to trial was directly attributable to appellant and his inability to procure suitable counsel. We have held that delays which are attributable to the unavailability of the defendant or his counsel provide sufficient grounds for extension of the Rule 1100 run date. Commonwealth v. Hamm, 325 Pa.Super. 401, 415, 473 A.2d 128, 135 (1984). See Commonwealth v. Brett, 262 Pa.Super. 326, 330, 396 A.2d 777, 780 (1978). In addition, Pa.R.Crim.P. 1100(d)(3)(i) provides that the same period may be excluded from the 180-day calculation.

It is clear that there was no abuse of discretion in the granting of the Commonwealth’s extensions from the original trial date until February 7,1985. The case had not been tried at that point solely due to appellant’s unpreparedness. Though we sympathize with his inability to secure suitable counsel, he cannot now complain when the Commonwealth is granted extensions for periods necessary to allow his counsel to prepare his case. Under these circumstances, the Commonwealth cannot be said to be acting without due diligence.

The next requested extension of the Rule 1100 run date was made on March 18, 1985. The record indicates that upon learning that a witness would be unavailable for trial, the Commonwealth moved for an extension. The court’s ruling on the Rule 1100 extension set June 10, 1985 as the trial date, that being the earliest date available consistent with the court’s calendar. After appellant’s counsel requested a lineup, one additional day was added to the run date. Appellant’s trial began the following day.

The Commonwealth cannot be held to be acting without due diligence when a witness becomes unavailable due to circumstances beyond its control. Thus, when a witness becomes unavailable towards the end of the Rule 1100 run date — due to illness, vacation, or other reason not within the Commonwealth’s control, the Commonwealth is prevented from commencing the trial within the requisite period despite due diligence, and an extension of time is warranted. Commonwealth v. Sharp, 287 Pa.Super. 314, 317, 430 A.2d 302, 304 (1981) (citing Commonwealth v. Sinor, 264 Pa.Super. 178, 183 n. 5, 399 A.2d 724, 727-28 n. 5 (1979)). It, therefore, cannot be said that the trial court abused its discretion in granting the Commonwealth’s request for extension.

We are persuaded by both the facts and the law that the Commonwealth has at all times acted with due diligence in bringing appellant to trial. Having found no abuse of discretion in the trial court’s finding of due diligence, we find any claim of ineffectiveness of counsel based on a Rule 1100 claim to be baseless and without merit.

AFFIRMED.