author: MONTEMURO, Judge.

text:
    672 A.2d 806
    COMMONWEALTH of Pennsylvania v. James E. BUTLER, Appellant.
    Superior Court of Pennsylvania.

      Argued Jan. 9, 1996.

    Filed March 1, 1996.

      Benjamin Paul, Philadelphia, for appellant.
    . Jonathan Levy, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before KELLY and HOFFMAN, JJ., and MONTEMURO, J., Assigned.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Judge.

This is an appeal from the Opinion and Order of the Court of Common Pleas of Philadelphia County denying Appellant’s petition for expungement. After a review of the record and the appropriate factors, we find that the trial court improperly relied on evidence surrounding Appellant’s prior expunged arrest to determine that the Commonwealth had a compelling interest in maintaining Appellant’s arrest record. Accordingly, we reverse.

On July 22, 1993 Appellant was arrested for the 1989 murder of Eric Abney, as well as possessing an instrument of crime (PIC), and on November 19, 1994, after a non-jury trial, he was acquitted of all charges. Appellant then filed a petition in the criminal motions division of the Court of Common Pleas of Philadelphia County, seeking to expunge his record of this arrest. On March 2, 1995, a hearing was held, and Appellant’s petition denied.’ This appeal followed.

In support of his petition for expungement, Appellant argued that he was arrested four years after the incident with weak and tainted identification evidence and was found not guilty of murder and PIC. He was only sixteen years old at the time of the incident. He has no prior criminal-record and is gainfully employed. Finally, Appellant alleged that the Commonwealth did not have a compelling reason to oppose the request for expungement.

The Commonwealth, on the other hand, contended that it had a compelling interest in maintaining Appellant’s arrest record. It argued that Appellant’s record would help establish his propensity for violence with the use of a firearm and would be helpful in the future for purposes of police safety, police investigation, and sentencing. In support of this argument, the Commonwealth pointed to the Appellant’s prior arrest for aggravated assault, following a complaint by his then girlfriend, a Ms. Lewis, that Appellant had shot at her. In addition, the Commonwealth argued that since Appellant had previously obtained an expungement, he should not be allowed a second expungement.

Relying on the same evidence, that had resulted in Appellant’s acquittal in the homicide trial, the expungement court found that the Commonwealth’s case against Appellant was strong; that there was sufficient circumstantial evidence to establish appellant’s pattern of violent behavior; and that he was self-employed and would not suffer occupational or economic limitations as a result of the maintenance of his arrest record. Therefore, upon balancing Appellant’s interest against those of the Commonwealth, the trial court held that the denial of the petition for expungement was proper.

Section 9122 of the Criminal History Record Information Act, provides that upon obtaining a court order, an individual can have the record of a specific criminal proceeding expunged. 18 Pa.C.S. § 9122. Section 9102 provides that if an individual obtains such a court order, the records are to be erased in such a way that there is no trace or indication that the information ever existed, leaving only the information necessary for statistical purposes. 18 Pa.C.S. § 9102.

The purpose of allowing an individual to expunge his record is to protect that individual from the difficulties and hardships that may result from an arrest on record. Commonwealth v. Malone, 244 Pa.Super. 62, 68, 366 A.2d 584, 588 (1976) (cited with approval in Commonwealth v. Wexler, 494 Pa. 325, 329, 431 A.2d 877, 879 (1981). There is no doubt that this information can be harmful to one’s reputation and opportunities for advancement in life. Id. Therefore, when faced with a request for expungement of a criminal record, the court must “balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records.” Wexler, 494 Pa. at 329, 431 A.2d at 879. In order to determine the weight of the Commonwealth’s and the petitioner’s interests, the court must consider several factors, including, but not limited to:

the strength of the Commonwealth’s case against the petitioner, the reasons the’ Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.

Id. (quoting Commonwealth v. Iacino, 270 Pa.Super. 350, 358, 411 A.2d 754, 759 (1979) (Spaeth, J., concurring)). If the Commonwealth failed to establish guilt beyond a reasonable doubt in the underlying criminal action, it has the burden to present compelling evidence against expungement of the record. Wexler, 494 Pa. at 331, 431 A.2d at 880. Moreover, expungement is only proper in cases where acquittal is consistent with a finding of real innocence and is not a result of legal technicalities unrelated to questions of guilt or innocence. Commonwealth v. Rose, 263 Pa.Super. 349, 351, 397 A.2d 1243, 1244 (1979) (citing Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976)).

Instantly, Appellant asserts that the trial court erred in its decision to deny his request to expunge his criminal record, arguing that the Commonwealth failed to prove that it had a substantial interest in retaining his criminal records. The Commonwealth contends that it has a substantial interest in preserving Appellant’s record in that it helps establish a specific pattern of violent behavior.

As Appellant was found not guilty of the charges, the Commonwealth had the burden of presenting compelling evidence to establish a pattern of violent behavior. In an attempt to do this, the Commonwealth presented the testimony of the assistant district attorney who tried Appellant’s murder case. The assistant district attorney testified that Appellant had a prior aggravated assault arrest expunged and that the expungement of that arrest hampered the investigation and prosecution of the homicide case. He also testified that Ms. Lewis contacted the police with information regarding the murder of Eric Abney, but was very hesitant, if not frightened, to provide the police with much information. He then testified that the officer, with whom she spoke, later learned that Ms. Lewis had previously reported to the police that Appellant fired a gun at her; that Appellant was then arrested for aggravated assault; and that Ms. Lewis failed to appear at Appellant’s preliminary hearing. Moreover, it was this testimony that the trial court found to be crucial to its decision to deny Appellant’s petition. Initially, it would appear that the Commonwealth presented sufficient evidence of Appellant’s past behavior to support its interest in maintaining Appellant’s record. However, merely considering the evidence presented does not take into account the relevance of the fact that Appellant’s prior arrest was expunged from his record. Thus, we are presented with an issue of first impression, which involves the determination of whether and to what extent a prior expungement and/or the underlying facts of the expunged arrest can be used in subsequent criminal proceedings.

In Connecticut v. Morowitz, 200 Conn. 440, 512 A.2d 175 (1986), the court noted that an expungement is limited to the erasure of the record and does not erase the memory of those personally involved. Id. Therefore, an expungement affords an individual some protection, but cannot entirely protect him from the consequences of his prior actions. Id. The court concluded that evidence of the underlying conduct of an expunged arrest which is based on personal knowledge is not precluded.' Id. The court emphasized that the testimony should be limited to the conduct, and any reference to the arrest or the record should be precluded. Id. We find this reasoning to be persuasive and logical, as well as consistent with the language of section 9102 and the purpose of expungement.

Iñ this case, the Commonwealth relied solely on the testimony of the assistant district attorney who tried Appellant’s murder case. It does not appear from the record that this witness had any personal knowledge of the events surrounding Appellant’s prior arrest, or Ms. Lewis’ subsequent contact with the police. What is evident is that the Commonwealth did not present Ms. Lewis, the police officer with whom she filed her complaint, or the offic'er with whom she spoke about the murder. Each of these witnesses would have been able to provide testimony based on personal knowledge of some or all of the above events.

Accordingly, presentation of the assistant district attorney’s testimony regarding Appellant’s prior expunged arrest, as well as the surrounding events, violated Appellant’s rights under the Criminal History Record Information Act. Therefore, the trial court erred in considering this testimony while deciding whether the Commonwealth established a compelling reason to maintain Appellant’s record. As the trial court noted that this testimony was crucial to its decision, a new expungement hearing is warranted to determine the propriety of expunging Appellant’s record.

Hence, the order of the trial court is reversed and the case remanded for a new hearing.

      . 18 Pa.C.S. § 2502.

      . 18 Pa.C.S. § 907(a).

      . In his petition to expunge, Appellant asserted that he had never been arrested prior to this arrest. (Petition to Expunge Criminal Records at 4). This statement is incorrect, as Appellant had previously been arrested. However, that arrest was expunged from his record.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    672 A.2d 810
    COMMONWEALTH of Pennsylvania v. Aaron BOYD, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1995.
    Filed March 5, 1996.

      Peter Rosalsky, Philadelphia, for appellant.
    Mary Porto, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from a September 27, 1994 judgment of sentence for possession of cocaine with intent to deliver. Appellant, Aaron Boyd, raises the following issue for our review:

DID NOT THE TRIAL COURT ERR IN PRECLUDING APPELLANT FROM PRESENTING TESTIMONY AS TO HIS GOOD REPUTATION FOR TRUTH AND VERACITY TO ESTABLISH HIS CREDIBILITY AS A TESTIFYING WITNESS, WHERE APPELLANT AND A COMMONWEALTH POLICE WITNESS TESTIFIED TO SHARPLY CONTRADICTORY AND IRRECONCILABLE VERSIONS OF THE UNDERLYING EPISODE?

Appellant’s Brief at 3. For the following reasons, we affirm.

On August 11, 1993, at approximately 2:30 p.m., Officer Gregory Kapusta was conducting a surveillance operation on the 200 block of Shedaker Street in Philadelphia. Through binoculars, Officer Kapusta observed appellant sit down at a table where a group of men were playing cards. Appellant did not participate in the card game. Subsequently, a woman approached appellant and handed him currency, and appellant handed her small shiny objects in return. Appellant then walked across the street and stood in front of the “239 Bar,” where he engaged in an identical transaction with another man. Appellant then returned to the card table. Thereafter, another man at the card table informed appellant that “the man is looking.” After hearing this, appellant stood up and started walking away. While walking, appellant reached into his pants, pulled out a brown paper wrapper, and placed it in the weeds. Officer Kapusta alerted his backup unit, and Officer Kenneth Fleming located and opened the brown paper wrapper, which contained forty-five (45) plastic vials with purple caps containing a chunky off-white substance, later determined to be crack cocaine. Officer James Wood then arrested appellant and found eighty-one ($81.00) dollars in his pocket but no vials.

Appellant was tried by a jury before the Honorable How-land A. Abramson. At trial, appellant testified that he did not possess, sell, or discard any drugs on the date in question. Appellant maintained that he arrived at the card table, watched for fifteen minutes, and then entered a black-jack game, in which he won the $81.00 found in his pocket. However, appellant denied ever sitting down at the card table. Appellant also testified that, during his game, Rodney Jackson, a friend, arrived and asked appellant if he wanted to get some beer. Appellant then accompanied Mr. Jackson to the “239 Bar” across the street from the card table, where they purchased beer and stood on the corner drinking it until the police arrested appellant. Mr. Jackson and Arthur Evans, another defense witness, corroborated appellant’s version of events. At trial, appellant sought to bolster his credibility by offering evidence of his good reputation for truth and veracity in his- community, but the trial court excluded this evidence. The jury found appellant guilty of possession of cocaine with intent to deliver, and after post-verdict motions were denied, appellant was sentenced to eighteen (18) to forty-six (46) months imprisonment to be followed by four (4) years probation. This timely appeal followed.

Appellant contends that the trial court erred in precluding him from offering evidence of his reputation for truthfulness.

The admissibility of evidence is within the discretion of the trial court, and we will not reverse evidentiary rulings absent an abuse of that discretion. Commonwealth v. Tedford, 523 Pa. 305, 328-29, 567 A.2d 610, 621 (1989).

Under Pennsylvania law, a witness may be impeached by demonstrating that he or she has a bad reputation for truth and veracity, and evidence of a witness’s bad reputation for. truth and veracity is always admissible. Commonwealth v. Butler, 423 Pa.Super. 472, 478, 621 A.2d 630, 632-33 (1993), appeal denied, 535 Pa. 613, 629 A.2d 1376 (1993). Furthermore, this Court has stated that:

If a witness is impeached by proof of bad reputation for truth ánd veracity, evidence may then be admitted to prove good reputation for truth and veracity. Bolstering evidence, however, is not admissible unless the character of the witness has first been attacked, and even then, only at the court’s discretion.

Commonwealth v. Smith, 389 Pa.Super. 626, 630, 567 A.2d 1080, 1082 (1989). (citations omitted), appeal denied, 527 Pa. 623, 592 A.2d 44 (1990).

Essentially, appellant claims that the Commonwealth’s witnesses’ testimony about the events that led to his arrest amounted to an attack on his character for truthfulness because their testimony directly contradicted his testimony about his actions the day of his arrest. Accordingly, appellant argues that he should be allowed to bolster his credibility by introducing evidence of his good reputation for truth and veracity.

Although this Court has never directly ruled on this issue, we recently addressed this subject under an ineffective assistance of counsel claim in Commonwealth v. Fowler, 434 Pa.Super. 148, 642 A.2d 517 (1994), appeal denied, 539 Pa. 688, 653 A.2d 1227 (1994). In Fowler, the trial court granted the defendant a new trial because the court found that his attorney was ineffective for failing to call an available witness to testify to the defendant’s reputation for truthfulness. At trial, the defendant was not impeached by evidence of his poor reputation for truth and veracity; however, the defendant’s testimony was contradicted by facts and testimony introduced by the Commonwealth. Under these circumstances, we found that evidence of the defendant’s good reputation for truth and veracity was inadmissible, and held that counsel was not ineffective for failing to call the witness, reversing the trial court. Fowler, 434 Pa.Super. at 154, 642 A.2d at 519.

Similarly, in the instant case, the Commonwealth did not attack appellant’s reputation for truth and veracity but instead merely offered witness testimony which directly contradicted appellant’s testimony about the events that led to his arrest. In this situation, evidence of appellant’s good reputation for truth and veracity was inadmissible at trial. See Fowler, supra. It is within the ordinary capacity of a jury to assess whether a particular witness is lying, and resolving questions of a witness’s credibility is a function reserved exclusively for the jury. Commonwealth v. Davis, 518 Pa. 77, 82, 541 A.2d 315, 317 (1988); Smith, 389 Pa.Super. at 631-32, 567 A.2d at 1083. Allowing a defendant to offer bolstering evidence of his or her good reputation for truth and veracity whenever the defendant’s testimony contradicts the testimony of the Commonwealth’s witnesses would infringe on the credibility determining function of the jury. See Davis, supra; Smith, supra. Therefore, we find that the trial court did not abuse its discretion by denying appellant the opportunity to introduce evidence of his reputation for truthfulness.

Accordingly, we affirm the judgment of sentence.

Affirmed.

McEWEN, J., dissents.

      . 35 Pa.C.S. § 780-113(a)(30).


author: SAYLOR, Judge:

text:
    672 A.2d 813
    COMMONWEALTH of Pennsylvania, Appellant, v. Duane BURLINGAME, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Terry ORNDORFF, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Clyde E. HARRIS, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1996.
    Filed March 5, 1996.

      Laura Pawloski, Assistant District Attorney, York, for Commonwealth, appellant.
    Richard K. Renn, York, for appellees.
    Before McEWEN, President Judge, and SAYLOR and HOFFMAN, JJ.
   SAYLOR, Judge:

This is an appeal by the Commonwealth from an order entered by the Court of Common Pleas of York County dismissing charges of harassment and ethnic intimidation that had been filed against Appellees, Duane Burlingame, Terry Orndorff, and Clyde E. Harris. The charges resulted from Appellees’ conduct during a labor dispute between the United Auto Workers (“UAW”) and Caterpillar, Inc. in August of 1994. Finding no error, we affirm.

Appellees were charged with the summary offense of harassment pursuant to 18 Pa.C.S.A. § 2709(a)(3), which reads as follows:

(a) Harassment. — A person commits the crime of harassment when, with intent to harass, annoy or alarm another person:
(3) he engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

18 Pa.C.S.A. § 2709(a)(3). Subsection (e) of section 2709, added by the legislature in 1993, reads as follows:

(e) Application of section. — This section shall not apply to conduct by a party to a labor dispute as defined in the act of June 2, 1937 (P.L. 1198, No. 308), known as the Labor Anti-Injunction Act [43 P.S. § 206a et seq.) ],[] or to any constitutionally protected activity.

18 Pa.C.S.A. § 2709(e). Based on the same conduct, Appellees were also charged with the offense of ethnic intimidation.

Following a preliminary hearing, the charges were bound over for court. Appellees then filed motions for habeas corpus seeking the dismissal of the charges. Appellees argued that since the actions which gave rise to the harassment charges constituted conduct by a party to a labor dispute, the prosecution was barred by the provisions of section 2709(e), and that since ethnic intimidation cannot stand alone as a separate offense, such charge should also be dismissed.

The evidence introduced by the Commonwealth at the habeas corpus hearing disclosed that on August 30, 1994, Appellees were engaged in picketing in front of the Caterpillar plant in York, Pennsylvania. The parties stipulated that at that time and place Caterpillar and' the UAW were in the midst of a labor dispute. As workers who had crossed the picket lines were attempting to drive away from the plant at the end of their • shift, Appellees, all of whom were UAW members, allegedly approached the workers’ cars, pointed fingers at the workers, and screamed insults, some of which included racial epithets. In addition, one of the Appellees, Clyde E. Harris, allegedly spit on a car.

The trial court found that Appellees’ actions constituted a course of conduct which seriously alarmed and annoyed the victims and which served no legitimate purpose within the meaning of the harassment statute. It also found, however, that since Appellees were parties to a labor dispute at the time they engaged in such conduct, the provisions of section 2709(e) required dismissal of the harassment charges. This appeal by the Commonwealth followed.

On appeal, the Commonwealth contends that the trial court erred in its application of section 2709(e). It argues that the language of section 2709(e) is ambiguous, thus requiring recourse to principles of statutory construction. The Commonwealth’s argument, as we understand it, is that section 2709(e), if properly construed, applies only to conduct which could not be enjoined under the Labor Anti-Injunction Act. However, this is not what the statute says. When the words of a statute are clear and unambiguous, we must give effect to their plain meaning. Section 2709(e) provides, quite simply, that section 2709 of the Crimes Code, which defines the crime of harassment, does not apply to conduct by a party to a labor dispute as that term is defined by the Labor Anti-Injunction Act. Since it is beyond question that Appellees’ conduct, However offensive, occurred during a labor dispute to which they were parties, it is shielded from prosecution under the harassment statute and the charges were properly dismissed.

Order affirmed.

      . As defined in the Labor Anti-Injunction Act, "[t]he term labor dispute’ includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment or concerning employment relations or any other controversy arising out of the respective interests of employer and employe, regardless of whether or not the disputants stand in the proximate relation of employer and employe, and regardless of whether or not the employes are on strike with the employer.” 43 P.S. § 206c(c).

      . A person commits the offense of ethnic intimidation "if, with malicious intention toward the race, color, religion or national origin of another individual ..., he commits an offense under[, inter alia,] any other provision of this article [Article B of the Crimes Code, Offenses Involving Danger to the Person] ... with respect to such individual. ...” 18 Pa.C.S.A. § 2710(a). Therefore, by definition, the offense of ethnic intimidation requires the commission of a predicate offense.

      . Appellees attempted to challenge this finding by means of a cross-appeal, which was quashed upon motion of the Commonwealth.

      . The court also dismissed the charges of ethnic intimidation since, as noted supra, that offense requires the commission of another crime.


author: TAMILIA, Judge.

text:
    672 A.2d 814
    Ethel M. RODGERS v. Merle WOODIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1995.
    Filed March 6, 1996.

      Barry L. Smith, Warren, for appellant.
    Marcia M. Ziki, Warren, for appellee.
    Before CIRILLO, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge.

Merle Woodin takes this appeal from the June 7, 1995 Order finding him to be the father of Laura Lee Rodgers, born July 19,1981, and ordering him to report to the Domestic Relations Office of Warren County for purposes of establishing proper support payments.

According to the record, mother initially filed a paternity action for the same child against Matthew McCumber on August 12, 1982. Prior to this action, although the two never married or lived together, Mr. McCumber consented to being named as father of the child on the child’s birth certificate, allegedly held himself out to the public as the father of the child and offered comfort and support to the child for approximately six months. However, after the paternity action was filed, Mr. McCumber denied being the child’s father and subsequent blood grouping tests, including HLA (Human Leukocyte Antigen) results, excluded him as the father and the action was dismissed.

Appellee, on May 19, 1994, through the District Attorney’s Office of Warren County, filed the present petition for the support of said child. At the paternity hearing, both parties testified they had intercourse approximately nine and one-half (9-1/2) months prior to the child’s birth. Mother, who was 16 years old when the child was born, further testified she, on the insistence of her parents, named Mr. MeCumber as the father even though they never engaged in sexual intercourse. At the time of the hearing, mother offered the results of blood testing performed by. Roche Biomedical Laboratories. Clifton R. Harris, Ph.D., and Associate Director of Paternity Determination at Roche, testified the test results indicated a 99.14 per cent likelihood that appellant is the father of the child.

The trial court, dismissing appellant’s claims of laches and estoppel, relied on the blood tests and found against appellant on the issue of paternity. The court thereafter entered a lump sum support Order against appellant for the time frame when mother initially filed the support petition to the date the child left mother’s residence to live with her uncle.

On appeal to this Court, putative father argues (1) considering the circumstances of Mr. MeCumber, the court should have applied the doctrine of equitable estoppel; (2) after 14 years, wife’s claim should be barred by laches; and (3) the trial court should not have accepted the results of the blood tests as conclusive when it was undisputed the tests were defective and contained no HLA result.

, This Court’s standard of review for a child support Order is a narrow one based upon an abuse of discretion. In these .matters, .abuse , of discretion requires more than error of judgment, rather it requires an overriding or misapplication of the law or a manifestly unreasonable exercise of judgment. Ball v. Minnick, 414 Pa.Super. 242, 606 A.2d 1181 (1992), affirmed 538 Pa. 441, 648 A.2d 1192 (1994).

Appellant first claims mother’s previous relationship with Mr. MeCumber and his corresponding actions equitably estopped her from now denying he is the father and claiming appellant is the father. Moreover, appellant claims the trial court ignored well established case law when it stated the doctrine of . equitable estoppel is inapplicable in paternity actions.

[Ujnder certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child. These estoppel cases indicate that where the principle is operative, blood tests may well be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted. However, the doctrine of estoppel will not apply when evidence establishes that the father failed to accept the child as his own by holding out and/or supporting the child.

Jones v. Trojak, 535 Pa. 95, 105-06, 634 A.2d 201, 206 (1993) (citations omitted).

Initially, we note that nowhere in the trial court Opinion is it stated the doctrine of equitable estoppel is inapplicable in paternity cases. To the contrary, the court, citing McCue v. McCue, 413 Pa.Super. 71, 604 A.2d 738 (1992), specifically states “[a] mother may be estopped from seeking a blood test to determine paternity.... ” Here, the record reveals Mr. McCumber never held the child out as his own, lived with the child or paid any support for her. See 23 Pa.C.S. § 5102(b)(2). Moreover, a judicial determination by the Crawford County courts vacated the. support action against Mr. McCumber because blood tests excluded him as the father. Accordingly, we find the record devoid of clear and convincing evidence necessary to evoke the doctrine of equitable estoppel. See Jefferson v. Perry, 432 Pa.Super. 651, 639 A.2d 830 (1994).

Appellant next argues mother’s delay of almost 12 years in telling him of the child, despite the fact she claims she knew he was the father, requires the doctrine of laches to be applied. Specifically, he claims his rights for custody, visitation and emotional support were denied by mother’s actions and, during this 12-year period,, he established his own family. Moreover, the trial court, in violation of established law, refused to even consider the doctrine of laches.

A party asserting the doctrine of laches must show a delay arising from the other party’s failure to exercise due diligence and prejudice from the delay. Bullock v. Bullock, 432 Pa.Super. 643, 639 A.2d 826, 828-829 (1994) (citations omitted). Prejudice is an.essential element of laches and in the absence of such the doctrine will not be applied. Id. Moreover, the courts have been extremely cautious applying this doctrine to situations in which a child support Order has not been enforced, even when long periods, of time are involved. Id. Here, we find, no prejudice endured by appellant and, in fact, question how any- prejudice could exist considering he nowhere acknowledges that he knew of Mr. McCumber or any of the actions mother took with respect to Mr. McCumber. Moreover, to the contrary, he has lived 12 years with no responsibilities or burdens of parenthood and with no financial obligation to the child. In addition, there is no evidence he would have foregone marriage and a family had he known of the child or been required to pay support. Accordingly, we find this claim devoid of merit but add thát during the pendency of this appeal, this Court found “Laches as a defense is not available in paternity actions.” Roboski v. Fink, 447 Pa.Super. 520,-, 669 A.2d 1017, 1017 (1995):

Finally, as a matter of public policy which ranges from decisions of the United States Supreme Court abrogating statutes of limitations in paternity cases during the minority of a child, the acts of Congress in child welfare matters requiring disclosure of a putative father before child welfare payments can be obtained, and the -acts of the Pennsylvania Legislature extending the time’ for bringing paternity actions until the eighteenth birthday of the child (23 Pa.C.S. § 4343(b) Limitation of actions), the doctrine of laches virtually has been nullified in paternity actions. This policy,' as with criminal cases extending the statute of limitations on crimes .committed against children to two years beyond their eighteenth birthday, recognizes the rights of children to protection when the adults responsible for their care fail to protect their rights. There can be no laches involved as to the rights of children in such circumstances. As with children born in wedlock, the right to support cannot be bargained away by the parents nor can the failure to ask for support at a given moment preclude that right at a subsequent time, no matter how much time has intervened.

Lastly, appellant argues the trial court erred in accepting the results of the blood tests as conclusive, when it was undisputed the tests were defective and contained no HLA result. Appellant argues the expert who testified, who did not perform the tests or compile the results but only reviewed the file one .week before trial, insisted all tests were “genetic” when five of the twelve were mere blood' typing. With this assertion we agree, and for the following reasons we believe appellant is entitled to relief.

The Uniform Act on Blood Tests to Determine Paternity (Act) provides, in pertinent part:

In any matter subject to this section in which paternity, parentage or identity of a child is a relevant fact, the court, upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to the tests, the court may resolve the question of paternity, parentage or identity of a child against the party or enforce its order if the rights of others and the interests of justice so require.

23 Pa.C.S. § 5104(c).

The Pennsylvania Legislature has empowered courts in paternity actions for support to order genetic tests under the provision of 23 Pa.C.S. § 4343(c)(1) and (c)(2):

(c) Genetic tests.—
(1) Upon the request of any party to an action to establish paternity, the court shall require the child and the parties to submit to genetic tests.
(2) Genetic test results indicating a 99% or greater probability that the alleged father is the father of the child shall create a presumption of paternity which may be rebutted only by clear and convincing evidence that the results of the genetic tests are not reliable in that particular case.

Absent an agreement to the contrary, a party has the full right to challenge the admissibility of blood test results. Tyler v. King, 344 Pa.Super. 78, 88, 496 A.2d 16, 21 (1985). However, the proponent of further blood testing must show by a preponderance of the evidence that the initial test was defective' and a subsequent test is needed for an accurate determination of paternity. Koleski v. Park, 363 Pa.Super. 22, 30, 525 A.2d 405, 408 (1987).

Appellant contests the validity and accuracy of the tests. Initially, we find the Act to be inconclusive ón the question of what constitutes sufficient genetic testing. Here, "the record establishes that HLA tests were ordered but, because of complications with the child’s blood, could not be reported. Appellee’s expert testified at trial, however, that HLA testing could be performed simply by obtaining a new sample of blood from the child (N.T., 5/5/95, p. 53). According to the expert, twelve tests were performed on the parties’ blood, including red cell antigens (ABO, Rh, MNSs, Kell, KIDD, Duffy), red cell enzymes and serum proteins (PGMI, ACP, GLOI) and DNA analysis (MCT-118 (CD1580), CSFIPO, FES/FPS). The results obtained were combined to form a paternity index of 115 to 1, which, the expert stated, means appellant is 115 times more likely than" a randomly selected Caucasian male to produce a sperm cell with these combined genetic markers (N.T. at 27).

Reviewing the tests administered, we find five of the tests identify the presence of red blood cell antigens. These test's are satisfactory for exclusionary purposes only. See Stahli v. Wittman, 412 Pa.Super. 281, 603 A.2d 583 (1992). The inability to use these tests (ABO, Rh, MNSs, Duffy and Kell) to prove paternity stems from the fact that each of these tests measures factors which are found with relatively high frequency in the population at large. Genetic tests, on the other hand, differ significantly from blood cell antigen typing tests. Id. In other words, blood typing is not genetic testing. From the.results of genetic tests, adequately and accurately performed, it is possible to determine that a particular man did in fact father a particular child. Here, there were three DNA analysis tests performed. However, the expert testified that his laboratory measures at least ten genetic markers (N.T. at 9).

The expert, combining the blood typing tests with the DNA tests, concluded a 99.14 per cent chance of probability. However, this percentage was never qualified as a DNA test by the expert nor does it appear to be such a result from our review of the record. Moreover, the expert never testified as to a percentage probability of paternity relying solely on the DNA tests.

In light of this amalgamated but legally insufficient testing performed by the lab, we find the trial court erred in failing to order a second blood sample test of the child for the HLA tests, which this Court has found admissible not only to disprove paternity, but as affirmative evidence to prove paternity. See Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983). While HLA tests are not conclusive evidence of paternity, it is not uncommon for trial courts to permit multiple blood tests when the tests are properly admissible. See Zearfoss v. Frattaroli, 435 Pa.Super. 565, 646 A.2d 1238 (1994) (results showed probability of fatherhood to be 99.86% (HLA) and 99.89% (DNA)). Moreover, DNA paternity evidence can more accurately identify a putative as the biological father and is thus not cumulative of HLA tests. Id. We also note that according to the testimony of the expert, the state of New York requires an HLA test in every paternity case (N.T. at 52). While this Court is not constrained by New York law, it still should be afforded some consideration since the action initially was transferred from Chatauqua County, New York, according to a reciprocal support enforcement statute.

Finally, we find the additional testing will not result in an undue burden upon the parties, particularly in light of the unique situation between the parties and the lack of any additional indicia of parenthood beyond both parties acknowledgement of sexual intercourse nine months prior to birth. Namely, mother did not initially acknowledge appellant as the father, but rather had Mr. McCumber sign the birth certificate. It was not until twelve years after the birth of the child, presumedly to avoid the consequences of the New York State Welfare Department, appellee filed a support claim against appellant. Nowhere in the record does she allege that she could not locate appellant prior to this time or that he was able to avoid support obligations. To the contrary, the record reveals the parties lived no more than 20 miles apart and appellant’s cousin lived next door to appellee.

Accordingly, we find the trial court erred in refusing to permit a second blood sample of the child to be taken for the purposes of HLA testing.

Order vacated; case remanded for additional blood testing and proceedings thereafter in accordance with paternity and support laws.

Jurisdiction relinquished.

      . This support action initially was filed in Chat aqua County, New York, but was transferred to Warren County, Pennsylvania, pursuant to a reciprocal support statute of New York.

      . The lab was able to obtain HLA samples from mother’s and appellant’s blood.


author: CIRILLO, President Judge Emeritus:

text:
    672 A.2d 819
    COMMONWEALTH of Pennsylvania, Appellant, v. Alfred LUTON.
    Superior Court of Pennsylvania.
    Argued Feb. 6, 1996.
    Filed March 7, 1996.

      Andrew S. Gibson, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Vincent J. Ziccardi, Philadelphia, for appellee. •
    Before CIRILLO, President Judge Emeritus, and BECK, J., and CERCONE, President Judge Emeritus.
   CIRILLO, President Judge Emeritus:

The Commonwealth appeals the order of the Court of Common Pleas of Philadelphia County granting defendant’s motion to suppress. We reverse.

After receiving several neighborhood complaints suggesting continuous drug-selling operations occurring at Alfred Luton’s Philadelphia home, the police employed the use of a confidential informant to conduct a “controlled” drug sale from the defendant at his residence. Using marked “bills,” the informant bought a substance from Luton, which later tests revealed was cocaine. Following this “sale,” the officer prepared an affidavit to search Luton’s residence.

On the following day, the magistrate issued a search warrant for Luton’s premises. The search uncovered: one large bag containing crack cocaine; dozens of empty, unused crack vials and lids; cash; and a fully-loaded semi-automatic handgun on the co-defendant’s person. The police arrested Luton and charged him with possession with intent to deliver.

Luton subsequently filed a motion to suppress the physical evidence uncovered from the search of his residence, alleging that the affidavit lacked probable cause to- conclude that contraband was “stored” and would be found upon searching his premises. The trial court granted the motion and the Commonwealth appeals raising the following issue:

Did’ the police have probable cause to search a house, pursuant to a warrant, where, after receiving complaints from neighbors of illegal drug-dealing at the house, they arranged and supervised a controlled purchase of crack cocaine inside the premises?

When reviewing the Commonwealth’s appeal from the decision of a suppression court, “we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole [that] remains uncontradicted.” Commonwealth v. Peters, 434 Pa.Super. 268, 270, 642 A.2d 1126, 1127 (1994) (citations omitted). When; the evidence supports the court’s findings of fact, we may reverse only when the legal conclusions drawn from those facts are erroneous. Commonwealth v. Elliot, 416 Pa.Super. 499, 611 A.2d 727 (1992) (citation omitted).

. The ultimate issue in a suppression hearing is whether the police officer affiants had probable cause at the time they applied for a search warrant. Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984). At such hearings, the Commonwealth has the burden of proving that the facts presented to the magistrate demonstrate probable cause. Id. The standard for evaluating whether probable cause exists for the issuance of a search warrant is the “totality of the circumstances” test as set forth, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which was adopted by the Pennsylvania Supreme. Court in Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985). A magistrate is to make a. “practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 484, 503 A.2d at 925, quoting. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332-33. The information offered to establish probable cause must be viewed in a common sense, non-technical manner and deference must be given to the issuing magistrate. Commonwealth v. Baker, 532 Pa. 121, 126-27, 615 A.2d 23, 25 (1992). It must be remembered that probable cause is based on a finding of the probability of criminal activity, not a prima facie shoving of criminal activity. Id.

At the suppression hearing the defense presented no witnesses, and, as such, the following facts remain uncontradicted: the magistrate was provided with an affidavit that included the following information — the police had received several neighborhood complaints about illegal sales of narcotics occurring at Luton’s home; an officer and an informant went to Luton’s residence where the informant, at the observation of the officer, knocked and was admitted to the home; while inside, the informant took a pre-recorded bill and gave it to Luton; Luton went into another room and later returned with two colored zip-lock bags, each containing a white powdery substance; a test was conducted on one of the bags which revealed the substance contained therein was of a cocaine base; upon return to the police station the officer searched the informant again and the marked bill was not found on his person. The officer-affiant, believing that crack-cocaine was being sold and stored in the defendant’s premises, requested a search warrant for Luton’s home.

The Commonwealth argues that the suppression court improperly analyzed the facts underlying the basis for the affidavit. It alleges that instead of conducting a “totality of the circumstances” approach, the court evaluated the facts independently. From this analysis, the Commonwealth claims that the judge incorrectly concluded that there was no probable cause to “believe that either illegal drugs, or other evidence connected with this illegal drug-selling operation would be found inside” Luton’s residence.

Our state courts have held that members of a particular neighborhood are well-qualified to observe what is happening in their community, and “should be supported in reporting drug activity to the police.” Commonwealth v. Dennis, 417 Pa.Super. 425, 612 A.2d 1014 (1992). See also Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981) (unlike typical informant cases where information may be provided for self-serving reasons, citizens’ reports of criminal activity are assumed to be credible). In addition, while an allegation based on an assumption or supposition not supported by the facts is insufficient to establish that there is criminal activity in a residence, Commonwealth v. Davis, 407 Pa.Super. 415, 595 A.2d 1216 (1991), “the law does not require that the information in a warrant affidavit establish with absolute certainty that the object of the search will be found at the stated location, nor does it demand that- the affidavit information preclude all possibility that the sought after article is not secreted in another location.” Id. (citations omitted).

The trial court opinion states that the suppression court suppressed the drugs that were not a product of the controlled buy conducted by the confidential informant under the surveillance of the police. The court concluded that, based on the facts in the affidavit from which the search warrant for Luton’s home issued, a magistrate could not determine that a single controlled sale of narcotics,' coupled with neighbors’ complaints of ongoing drug sales in a particular residence, established probable cause to believe that drugs were being stored in the residence.

The trial court’s suppression of evidence from Luton’s home is against the well established principles of probable cause and the law regarding issuance of search warrants. See Commonwealth v. Baker, 532 Pa. 121, 615 A.2d 23 (1992) (facts sufficient to establish probable cause for issuance of search warrant where informant was used by the police to conduct four controlled purchases of cocaine from defendant on four separate occasions, informant’s information implicating defendant as the seller was. corroborated by police officer’s first hand observations when he gave informant money to purchase cocaine and .saw informant enter residence and return from residence with cocaine, and where other independent sources reported that the defendant was involved in illegal drug sales from his residence; in addition informant told police that defendant told him that there were additional amounts of cocaine in the residence); Commonwealth v. Johnson, 358 Pa.Super. 435, 517 A.2d 1311 (1986) (abundant probable cause existed on face of search warrant for defendant’s residence in a case where, based on an informant’s tip, police conducted a controlled buy of heroin from the defendant within 48 hours of execution of search, observed defendant leaving his residence to meet with informant, who immediately delivered heroin to surveillance officer, and recorded serial numbers of bills used in making a second controlled purchase); Commonwealth v. Camperson, 437 Pa.Super. 355, 650 A.2d 65 (1994) (where affidavit recited purchases of methamphetamine from defendant and where a third party had observed the manufacture of the drugs in the defendant’s residence and where drugs which were to be supplied to third party for resale were in defendant’s possession at defendant’s residence under police surveillance, facts were sufficient to establish probable cause for believing that contraband would be found in defendant’s residence); Commonwealth v. Eicher, 413 Pa.Super. 235, 605 A.2d 337 (1992) (where police officer conducted investigation of defendant and set up drug buy with defendant where he was sold two bags of cocaine and where defendant informed the officer that he possessed additional quantities of cocaine, where the cocaine sold to the officer had been stored at defendant’s residence, magistrate had a substantial basis for finding that sufficient probable cause existed to search defendant’s residence).

Based upon the totality of the circumstances, the police-conducted “controlled buy” sufficiently corroborated the neighbors’ observations alleging drug operations from Luton’s home. Dennis, supra; Johnson, supra. Accordingly, the magistrate could have concluded by a fair probability that drug selling and storing was taking place at Luton’s home. Gray, supra. We agree with the Commonwealth’s argument on appeal and find that the motion to suppress should be reversed. See Commonwealth v. South, 408 Pa.Super. 486, 597 A.2d 137 (1991) (where informant’s tip that defendant was in possession of drugs and was selling drugs was corroborated by officers’ conducting a controlled buy between informant and defendant and where the officers surveilled the defendant for several months prior to executing the search warrant, issuing magistrate had a reasonable basis to conclude that the contraband would be at the place to be searched).

Order reversed. .

      . The Commonwealth has properly certified that, pursuant to Pa.R.A.P. 311(d), the order appealed from will terminate or substantially handicap the Commonwealth in its prosecution of Luton. Therefore, we have jurisdiction to hear this appeal. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Whitehead, 427 Pa.Super. 362, 629 A.2d 142 (1993).

      . For purposes of clarity, it is important to note that the "confidential informant” who conducted the controlled buy for the police was. not an informant who had provided any tips regarding the allegation of Luton’s drug activity. Rather, the informant was merely retained as an agent for the police to conduct the sale of drugs with Luton. In fact, the Commonwealth’s brief states:
      Here, the police were not seeking a search warrant based upon a tip provided by an uncorroborated informant. Instead, the request for the search warrant was based primarily upon the affiant's own, firsthand observations at the time of the controlled buy....
      Accordingly, this appeal is not concerned with corroborating any informant information for purposes of assessing veracity of tips used to obtain the warrant. See Commonwealth v. Jones, 542 Pa. 418, 668 A.2d 114 (1995).


author: EAKIN, Judge:

text:
    672 A.2d 823
    Evelyn GROM, Appellant, v. Deanna BURGOON, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1996.
    Filed March 8, 1996.

      Jeffrey Miller, Dravosburg, for appellant.
    Patrick T. Narcisi, Pittsburgh, for appellee.
    Before TAMILIA, FORD ELLIOTT and EAKIN, JJ.
   EAKIN, Judge:

Appellant, Evelyn Grom, appeals from an order of the Family Court Division of the Court of Commpn Pleas of Allegheny County (Kaplan, J. presiding), which dismissed for lack.of standing her petition for grandparent visitation rights. Upon review, we reverse and remand for further proceedings.

Appellant is the mother of Appellee, Deanná Burgoon. Andrew Grom is the son of Appellee and was born in June 1988. Andrew and his mother lived with Appellant in Appellant’s home in Pittsburgh for approximately twenty (20) months.,, from Andrewis birth- until March 1991 when he and Appellee moved to Florida. In June 1991, Andrew and Appellee left Florida and returned to live .with Appellant until October 1991 when they again moved from Appellant’s home.

On October 6, 1994, Appellant petitioned for grandparent visitation rights pursuant to the Custody and Grandparents Visitation Act, 23 Pa.C.S. § 5313 (“When child has resided with grandparents”). The trial court dismissed Appellant’s petition for lack of standing. In its opinion pursuant to Rule 1925 of the Pennsylvania Rules of Appellate Procedure, the trial court stated that Appellant’s standing atrophied because she failed to file her petition within a reasonable time after Appellee removed Andrew from Appellant’s home.

As a threshold question, Appellant argues that the trial court erred in raising the issue of standing sua sponte. In general, the question of standing is distinguishable from that of subject matter jurisdiction. However, when a statute creates a cause of action and designates who may sue, the issue of standing becomes interwoven with that of subject matter jurisdiction. Hill v. Divecchio, 425 Pa.Super. 355, 625 A.2d 642 (1993), alloc. denied, 538 Pa. 613, 645 A.2d 1316 (1994). Standing then becomes a jurisdictional prerequisite to an action. Id. at 361, 625 A.2d at 645. It is well-settled that the question of subject matter jurisdiction may be raised at any time, by any party, or by the court sua sponte. Id. at 361 n. 3, 625 A.2d at 645 n. 3.

Section 5313 of the Custody and Grandparents Visitation Act provides as follows:

If an unmarried child has resided with his grandparents or great-grandparents for a period of twelve months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable partial custody or visitation rights, or both, to the child. The court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship.

23 Pa.C.S. § 5313. Clearly, section 5313 creates a cause of action for grandparent visitation and designates who may bring suit under its provisions. Thus, the trial court could consider the question of standing sua sponte.

We turn now to the question of whether the court erred in finding that Appellant lacked standing to petition for grandparent visitation rights under the statute. The basic tenet of statutory construction requires a court to construe the words of the statute according to their plain meaning. 1 Pa.C.S. § 1903(a); Commonwealth v. Stanley, 498 Pa. 326, 335, 446 A.2d 583, 587 (1982). When the words of a statute are clear and unambiguous, a court cannot disregard them under the pretext of pursuing the spirit of the statute. 1 Pa.C.S. § 1921(a); Coretsky v. Board of Commissioners of Butler Township, 520 Pa. 513, 555 A.2d 72 (1989). Only if a statute is unclear may a court embark upon the task of ascertaining the intent of the legislature by reviewing the necessity of the act, the object to be attained, the circumstances’ under which it was enacted and the mischief to be remedied. Id. at 517-18; 555 A.2d at 74 (citing 1 Pa.C.S. § 1921(c)).

;,, The language of section 5313 is clear and unambiguous. It confers upon grandparents with whom the child has resided for twelve months or more and from whom the child is subsequently removed, standing to petition for visitation. Rigler v. Treen, 442 Pa.Super. 533, 536-37, 660 A.2d 111, 113 (1995). In the instant case, Andrew lived with Appellant and Appellee for approximately 20 continuous months, from June 1988 until he was “subsequently removed.” Clearly, this confers standing upon Appellant.

Furthermore, section 5313 does not set forth a time limit within’ which eligible grandparents must petition for visitation or else forfeit their standing. To imply a time limit regarding when a petition must be filed is to add this requirement to the already existing provisions of the statute. Our duty to interpret statutes does not include a right to add provisions the legislature has omitted. See Commonwealth v. Rieck Investment Corp., 419 Pa. 52, 59, 213 A.2d 277, 282 (1965) (it is not for the court to add to a statute, by interpretation, a requirement the legislature did not see fit to include); Garcia v. Community Legal Services Corp., 362 Pa.Super. 484, 524 A.2d 980 (1987), alloc. denied, 517 Pa. 623, 538 A.2d 876 (1988) (same). This is precisely what the trial court did in the instant case when it opined that the term “subsequently” in section 5313 included an obligation on the part of the grandparent to file the visitation petition within a reasonable time after the child’s removal. To reiterate, the letter of a statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921.

Consequently, we hold that Appellant did not lose standing to petition for visitation under 23 Pa.C.S. § 5313 because she filed her petition three years after her grandson moved out of her home. However, while we conclude that Appellant has standing, we pass no judgment on the merits of her petition and remand this case to the trial court for proceedings consistent with this opinion.

Order reversed; case remanded for further proceedings. Jurisdiction relinquished.

      . The Act of October 30, 1985, P.L. 264, No. 66 § 1.

      . While irrelevant to the issue of standing, the time between removal of the child and the filing of the petition, as well as the relationship among all concerned during that time, may well be relevant in determining the ultimate issue, namely the best interest of the child. These factors may also account for any delay in the petition being filed, where, for example, regular visits between the grandparent and the child after the child's removal cause the grandparent to forgo filing. In such a case, the grandparent would have no need to petition for what already exists. Because of its ruling on the standing issue, however, the trial court did not explore the reason for the delay or the parties' relationship, as the certified record reflects.


author: POPOVICH, Judge:

text:
    672 A.2d 826
    COMMONWEALTH of Pennsylvania, Appellee, v. David P. WRIGHT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 11, 1995.
    Filed Feb. 26, 1996.

      Jpseph K. Cottrell, Williamsport, for appellant.
    Robert. W. Ferrell, Assistant District Attorney, Williams-port, for Commonwealth, appellee.
    Before DEL SOLE, POPOVICH and OLSZEWSKI, JJ.
   POPOVICH, Judge:

This is an appeal from the judgement of sentence entered in the Court of Common Pleas of Lycoming County, following appellant’s conviction on charges of possession of a controlled substance and possession of drug paraphernalia. Appellant raises one issue for our review, whether the lower court erred in failing to suppress heroin found in his possession after he was searched by Lycoming County police officers at the Susquehanna Railways Bus Station in Williamsport, Pennsylvania. For .the reasons set forth below, we reverse.

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression courts factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution’s witnesses and so much, of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When thé factual findings of the suppression court are supported by the evidence, the appellate court may. reverse if there is an error in the legal conclúsions drawn from those factual findings.

Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177, 178-179 (1992), alloc. denied, 533 Pa. 598, 617 A.2d 1273 (1992) (citations omitted).

The only testimony at the suppression hearing was elicited by the prosecution’s witnesses. After a careful review of the record, we are' satisfied that the suppression court’s factual findings, as they appear in its Opinion of August 25, 1995, are supported by the record. However, we are compelled to note several important omissions from the suppression court’s summary of the salient facts.

Since 1990, Detective Paret, who was stationed in Allentown, Pennsylvania, was involved with the drug interdiction program. The program targeted those individuals who used the public transportation system as a means of transporting illegal narcotics. The detective worked closely with bus drivers from Susquehanna Trailways. In the past, he has arrested individuals who were using Susquehanna Trailways to transport narcotics from Philadelphia, Pennsylvania to Williamsport, Pennsylvania. Through his investigations, the detective discovered that many individuals were taking indirect routes to Williamsport. Namely, they would travel from Philadelphia to Wilkes-Barre, Pennsylvania and then to Williamsport.

On November 3, 1994, Detective Paret received a page from a Greyhound Bus driver. When he returned the driver’s page, the detective learned that the bus had already departed Philadelphia and was headed for Wilkes-Barre. A ticket agent informed the detective that the driver had indicated to her that two people were enroute from Philadelphia to Williamsport and that the detective should “check them out.”

At this point, Detective Paret telephoned Detective Byerly, a Lycoming County Detective, and relayed the message. He told Detective Byerly that he had no description of the individuals, but that he felt that some of Detective Byerly’s men should go to the bus station for a “mere encounter,” i.e., the officers should talk to the passengers as they disembarked from the bus and check for the possibility of narcotics trafficking.

Later in the day, Detective Paret contacted the Greyhound Bus driver in Wilkes-Barre, and a description of the individuals was provided to him. The driver indicated that two black, males ticketed under the name Wright were travelling from Philadelphia to Williamsport making a connection in Wilkes-Barre.. The driver described-the males as being approximately 5’ 10” in height and of medium build. The driver further indicated that the males made their ticket purchases “at the last minute” and that he felt that they were acting in a suspicious manner. This information was relayed to Detectivé Byerly.

At approximately 3:30 p.m. on November 3, 1994, five officers from the Lycoming County Drug Task Force arrived at the Susquehanna Bus Station in Williamsport. All of the officers were wearing jackets bearing the words “Lycoming County Drug Task Force.” After the bus arrived, two detectives boarded the bus and checked'for unclaimed baggage, but none was found. The detectives observed appellant standing with his baggage in the public area of the bus station. He appeared to match the description given to them by Detective Paret. Detective Aldenderfer approached appellant and identified himself as a member of the. Drug Task. Force; The detective informed appellant that they had reason to believe that he was carrying narcotics and asked for consent to search his baggage and person. The appellant responded that it would be “no problem.” Detective'Aldenderfer and Gyurino then began searching appellant’s baggage. Detective Bonnell asked Detective Aldenderfer if appellant had given consent for the officers to search appellant’s person. The detective replied in the affirmative. Detective Bonnell' then searched appellant and found two packets of heroin in his wallet.

Appellant moved to suppress the evidence. The lower court denied appellant’s request for suppression, and he was convicted of possession of a controlled substance and possession of drug paraphernalia. This appeal followed.

After a thorough review of the record, appellant’s brief and the applicable law, it is our determination that appellant was “seized” for the purposes of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. We further find that the officers did not have the requisite “articulable suspicion” to justify the stop under the Terry doctrine. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Article I, Section 8 of the Pennsylvania Constitution provides: “The people shall be secure in their persons, house, papers and possessions from unreasonable searches and seizures .... ” The guarantees under the Fourth Amendment to the United States Constitution are similar. “The Fourth Amendment provides that ‘the right of the people to be secure in their persons, houses, papers, and, effects against unreasonable searches and seizures, shall not be violated....”’ Commonwealth v. Lewis, 535 Pa. 501, 636 A.2d 619, 622 (1994). Both Constitutions prohibit searches and seizures that are unsupported by objective justification, including all seizures of the person, even during a brief detention. Terry, supra. See Commonwealth v. Parker, 422 Pa.Super. 393, 619 A.2d 735 (1993).

[However,] not every encounter between a citizen and the police is so intrusive as to trigger the protections provided by the ... Constitutions. There is nothing in the Constitutions which prevent a policeman from approaching a person on a public street or in a public place in order to make inquiries of that person.

In Interest of Jermaine, 399 Pa.Super. 503, 582 A.2d 1058, 1060 (1990), alloc. denied, 530 Pa. 643, 607 A.2d 253 (1992) (citations omitted). “Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.” Jermaine, 582 A.2d at 1064 (Popovich, J., dissenting) (citations omitted).

However, when officers, by means of physical force or a show of authority have restrained the liberty of an individual, a “seizure” has occurred. Lewis, 636 A.2d at 623. “ ‘[A]ny curtailment of a person’s liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.’ ” Lewis, 636 A.2d at 623.

The United States Supreme Court has articulated the following test to determine whether.a particular encounter constitutes a seizure:. “ ‘[A] court must consider all [of] the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests] or otherwise terminate the encounter.’” Lewis, 636 A.2d at 623 (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389 (1991)). Applying the test to the facts of this ease, we find that, under the totality of the circumstances, the police conduct would have communicated to a reasonable person that the person was not free to leave, and, thus, appellant was “seized.”

Here, appellant was confronted by five Lycoming County officers, who were wearing jackets bearing the words “Lycoming County Drug Task Force,” when he disembarked from the bus in . Williamsport. He was approached directly by police officers and was told that he was suspected of possessing illegal narcotics. Under these circumstances, the combination of the threatening presence of several officers and the officers’ indication that appellant was suspected of criminal activity, a reasonable person would believe that he was not free to leave. We find that the nature of the confrontation demonstrated a show of authority which constituted a restraint of appellant’s liberty. Therefore, appellant was seized by the police before being asked to consent to a search of his baggage and person. See Lewis, supra (holding that appellant was seized where he was confronted by four officers who indicated that they were “working narcotics” and were part of a drug interdiction program); Jermaine, supra (indicating that the threatening presence of several officers and unsupported outright accusations of criminal activity constitute a “seizure”).

Having found that appellant was seized within the meaning of the Fourth Amendment, we must determine whether “there were ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted that intrusion.’ ” Lewis, 636 A.2d at 623 (citing Terry, 392 U.S. at 21, 88 S.Ct. at 1884). A stop for investigatory purposes is justified only if the “police officer[s] observe unusual conduct which leads ... [them] reasonably to conclude in light of ... [their] experience that criminal activity may be afoot----” Terry, 392 U.S. at 30, 88 S.Ct. at 1884. “This standard is met ‘if the police officers’ reasonable and articulable belief that criminal activity was afoot [is] linked with ... their observations of suspicious or irregular behavior on behalf of the particular defendant stopped.” Lopez, 609 A.2d at 180 (citing Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968, 970 (1987)). In evaluating the reasonableness of a stop by the police, we must look to the totality of the circumstances. Commonwealth v. Daniels, 410 Pa.Super. 275, 599 A.2d 988 (1991), appeal denied, 531 Pa. 645, 612 A.2d 983 (1992).

The reasonable suspicion necessary to justify a Terry stop is less stringent than probable cause, but the detaining officer must have more than a hunch as the basis for a stop. In Interest of S.D., 429 Pa.Super. 576, 633 A.2d 172, 174 (1993) (citation omitted). “ ‘Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by [the] police and its degree of reliability.’ ” Interest of S.D., 633 A.2d at 174 (quoting Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415-16, 110 L.Ed.2d 301 (1990)). We note that police officers need not personally observe the illegal or suspicious conduct which lead them to believe that criminal activity is afoot. Interest of S.D., supra. The police may rely on information from third parties. Id.

Here, appellant was stopped by police officers because he fit the description of an individual who was a black male, had traveled to Williamsport from Philadelphia via Wilkes-Barre, had purchased his ticket “at the last minute” and, according to a bus driver, was acting suspiciously. None of the officers testified that they observed any suspicious or irregular behavior on appellant’s behalf when he disembarked from the bus. In addition, the record does not indicate the objective reasons given for the bus driver’s belief that appellant was “acting suspiciously.” Viewing the evidence in its totality, we cannot find that the officers had a reasonable suspicion to make a Terry stop. The mere fact that appellant was travelling a certain route, purchased his bus ticket in a certain way, and was, according to a bus driver, “acting suspiciously” is not sufficient basis for finding that the police had reasonable suspicion to make a Terry stop. Consequently, the heroin found in appellant’s wallet was inadmissible even though he consented to the search because it was the product of an illegal detention, and not the result of an independent act of free will. See Daniels, supra. Therefore, the heroin seized from appellant’s wallet should have been suppressed.

Judgment of sentence is vacated and this case is reversed and remanded. Jurisdiction is relinquished.

      . Title 35 § 780-113(A)(16).

      . Title 35 § 780-113(A)(32).

      . We note that the Commonwealth did not submit a brief for our review.

      . We note that appellant has failed to indicate whether his seizure was in violation of the Fourth Amendment to the United States Constituí ion, Article I, Section 8 of the Pennsylvania Constitution, or both Constitutions. For the sake of judicial economy, we will analyze this case under both Constitutions.

      . The protections of individual privacy against unreasonable governmental searches and seizures under the Pennsylvania Constitution are more expansive than those afforded under the United States Constitution. Commonwealth v. Parker, 422 Pa.Super. 393, 619 A.2d 735, 738 (1993). The United States Supreme Court's interpretations of Fourth Amendment guarantees do not bind this court in reaching conclusions regarding the protections afforded under Article 1, Section 8 of the Pennsylvania Constitution. Id. However, we conclude that under both the state and federal constitutional provisions, the search and seizure in this case was unconstitutional.


author:
POPOVICH, Judge.
      BECK, Judge,

text:
    672 A.2d 830
    COMMONWEALTH of Pennsylvania, Appellant, v. Maria M. RIVERA, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Angel SANCHEZ, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. J.J. BRICENO-RODRIGUEZ, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1995.
    Filed Feb. 28, 1996.

      Iva C. Dougherty, Assistant District Attorney, Reading, for Commonwealth, appellant.
    Franklin W. Noll, III, Reading, for Rivera, appellee.
    Lawrence J. Hracho, Reading, for Sanchez, appellee.

      Emmanuel H. Dimitriou, Reading, for Briceno-Rodriguez, appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge.

This is an appeal from the order granting appellees’ motions to suppress and requests for habeas corpus relief on December 6, 1994, in the Court of Common Pleas of Berks County. The Commonwealth appeals and raises the following two issues: Whether the lower court erred in concluding that the legality of the canine sniff conducted in California must be evaluated on the basis of Pennsylvania law; and whether the canine sniff conducted in the instant case was reasonable under Pennsylvania law. Upon review, we find that the legality of the canine sniff should have been evaluated under California law, not Pennsylvania law. Therefore, we reverse the trial court’s grant of appellees’ motions to suppress and requests for habeas corpus and remand for new trials in accordance with this opinion.

The facts of this case are as follows: On August 26, 1993, Special Agent Tully E. Kessler of the Bureau of Alcohol, Tobacco and Firearms (ATF) was on routine duty at a Federal Express location in Bakersfield, California when he observed a Hispanic man and woman arranging to ship a package. The woman handwrote an airbill and proceeded to pay $77.00 in cash for the shipment. Agent Kessler watched the couple leave and noted their license plate number. Upon external inspection of the package, Agent Kessler noticed that the sender’s address was listed as: Ceramics, Inc., 1114 McNew Ct., Bakers. CA 93307, Ph. 833-3450. The receiver was listed as: Sr. Angel Sanchez, 1705 Liggett Ave., Shillington, PA 19607.

Agent Kessler called the telephone operator and was told that there was no listing for a Ceramics, Inc. in the Bakersfield area. Agent Kessler then consulted two directories and could not find a listing for the phone number written on the package. He then checked both directories for the address of 1114 McNew Ct. and found that it was a non-existent address for Bakersfield, California. When Agent Kessler called the number on the package, a young Hispanic woman answered, and he could hear children crying in the background. He hung up the phone without speaking. A check with the California Department of Motor Vehicles showed that the vehicle in which the couple left was registered to Trinidad Mendez and Maria C. Ramirez, 1423 East California Avenue, Bakersfield, California.

Agent Kessler then contacted Deputy Bruce Saunders of the Kern County Sheriff’s Department and asked him to bring his canine drug detector to the Federal Express office to conduct a sniff test of the package. The police dog alerted Deputy Saunders to the odor of a controlled substance emanating from the package in question. Agent Kessler contacted Detective Joe Mekosh of the Cumru Township Police Department and provided him with the information regarding the package. After verifying that Agent Kessler was employed by ATF, Detective Mekosh obtained a search warrant for the package based on the information provided by Agent Kessler. A search of the package in Pennsylvania revealed fifteen (15) packets of marijuana. After a controlled delivery to 1705-Liggett Avenue, Detective Mekosh obtained a search warrant to search the premises for marijuana and related objects and another warrant to search the computer and financial records found on the premises. The searches revealed large amounts of cash, marijuana and other incriminating evidence.

In response to appellees’ motions to suppress and requests for habeas corpus relief, the trial court decided that the legality of the canine sniff conducted in California must be evaluated on the basis of Pennsylvania law. The trial court explained that since the law of evidence is characterized as procedural law, the law of the forum state, Pennsylvania, would apply. Based on this presumption, the trial court concluded that the facts before Agent Kessler did not rise to the level of reasonable suspicion as required by Pennsylvania law. Consequently, the trial court suppressed all of the evidence obtained subsequent to the canine sniff and granted appellees’ request for habeas corpus relief.

The Commonwealth argues that California law should have been applied because the determination of whether a canine sniff is a search is a matter of substantive rather than procedural law. Under California law, a canine sniff does not require reasonable suspicion because it is not considered a search. People v. Mayberry, 31 Cal.3d 335, 182 Cal.Rptr. 617, 644 P.2d 810 (1982). However, in Pennsylvania, a canine sniff is a search which requires reasonable grounds for believing that drugs may be present and lawful presence by the police where the sniff is conducted. Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987). We agree with the Commonwealth that California law should have been applied and the evidence obtained pursuant to the canine sniff not be suppressed.

In Commonwealth v. Bennett, 245 Pa.Super. 457, 369 A.2d 493 (1976), the Superior Court of New Jersey authorized a wiretap on a telephone located within the state. Based on the information obtained via the New Jersey wiretap, a search warrant was issued in Pennsylvania which resulted in the defendant’s arrest. Since the evidence obtained pursuant to the wiretap could not have been legally obtained under Pennsylvania law, it was suppressed by the trial court. Upon review, this court emphasized that the information was obtained through a wiretap legally authorized by the Superior Court of New Jersey. We noted that the legislature of New Jersey had authorized the use of wiretapping, in appropriate circumstances and for proper cause shown, within its borders. Thus, the information was legally obtained by the New Jersey Police and could properly form the basis of a warrant in Pennsylvania. Bennett, 369 A.2d at 494.

As this court stated in Bennett:

[a] conclusion that denies the exchange of information between law enforcement agencies of our Commonwealth and those of our sister states cannot be justified. The overriding public policy must be to allow such an exchange, for public policy, in the absence of legislative mandate, must favor the interest of the public by fostering its protection through the detection and apprehension of those who persist in defying our laws. This is particularly true in the case of major interstate drug dealers whose activities wreck the lives of so many people in this country today.

Id.

Similarly, in Commonwealth v. Corbo, 295 Pa.Super. 42, 440 A.2d 1213 (1982), New Jersey police obtained evidence through a court approved electronic surveillance of New Jersey telephones. This information was forwarded to Pennsylvania police which established probable cause to issue a warrant in Pennsylvania. This court found that the evidence legally obtained in New Jersey could constitute the probable cause for a Pennsylvania search warrant. Id. at 1214-1215. See also, Commonwealth v. Trignani, 334 Pa.Super. 526, 483 A.2d 862, 866-867 (1984).

In the present case, Agent Kessler conducted a canine sniff search clearly authorized by California law. As previously stated, in California, a canine sniff by a police trained dog to detect the odor of narcotics in a public place does not invoke constitutional protection as it is not considered a search. People v. Mayberry, 31 Cal.3d 335, 182 Cal.Rptr. 617, 644 P.2d 810 (1982). As stated in Bennett regarding wiretaps, if the legislature of a sister state determines that an investigative technique will be permitted within its borders absent constitutional limitation, we will not question that decision. Furthermore, our Supreme Court has found a canine sniff-search to be inherently less intrusive upon an individual’s privacy than wiretapping. Johnston, 530 A.2d at 79. Therefore, as our court’s have determined that a wiretap legally executed in another state is not in contravention to the laws, of our Commonwealth, we find the same with respect to the less-intrusive use of a legally executed canine sniff.

The trial court cites Commonwealth v. Dennis, 421 Pa.Super. 600, 618 A.2d 972 (1992), for its conclusion that Pennsylvania law applies to the present case. In Dennis, the defendant, a New Jersey resident, was convicted in Pennsylvania of various drug offenses involving individuals in Pennsylvania, New Jersey, and Florida. The defendant contended on appeal that the results of a search of his New Jersey property should not have been admitted because the information stated in the affidavit was stale and, thus, the search warrant was improperly issued. The court explained that laws regarding admissibility of evidence were procedural matters governed by the law of the forum. Therefore, this court affirmed upon finding that the application for the search warrant before the New Jersey magistrate was sufficient to establish probable cause under Pennsylvania law.

The trial court’s reliance on Commonwealth v. Dennis, 421 Pa.Super. 600, 618 A.2d 972 (1992), is misplaced in light of the circumstances of the case before us. In this case, the question is not whether the sniff was conducted properly, rather, it is whether or not appellees had a constitutional right to be free from an unreasonable canine sniff search of their property while within the borders of California. We must determine if whether appellees’ had this constitutional right is a matter of substantive or procedural law. If it is a matter of procedural law, Pennsylvania law would apply as the forum state. Dennis, 618 A.2d at 980. Otherwise, California law would apply.

In Black’s Law Dictionary, substantive law is defined as “[t]hat which creates duties, rights and obligations, while ‘procedural’ law prescribes methods of enforcement of rights or obtaining redress.” (citing Kilbreath v. Rudy, 16 Ohio St.2d 70, 242 N.E.2d 658, 660). Therefore, whether one has a constitutional right clearly is a matter of substantive law to be determined by the state where the activity occurred. In Pennsylvania, we have created a right under the Pennsylvania Constitution to be free from an unreasonable intrusion employing a canine sniff. Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987). Accordingly, guidelines were formulated to regulate such intrusions. Id. However, in California, there is no such constitutional right and, consequently, no accompanying restrictions on its execution..

Assuming, arguendo, that the trial court properly applied Pennsylvania law to the present case, we find that reasonable suspicion existed to justify the canine sniff. In Johnston, reasonable suspicion was found based on the officer’s, observation of an individual carrying a parcel the same size and shape as the bales frequently used to transport marijuana. Johnston, 530 A.2d at 80. In the present case, Agent Kessler observed appellees pay $77.00 in cash to ship a package with a non-existent return address and a phone number not consistent with the named sender, Ceramics, Inc. Further, Agent Kessler was lawfully in the Federal Express office where he observed the shipment. We find these facts sufficient to establish reasonable suspicion.

The canine sniff of appellees’ package was legally conducted pursuant to California law, no law of this Commonwealth was violated and the rights of Pennsylvania citizens were not infringed. We will not “hinder our law enforcement agencies by needléss restrictions upon their use of information and evidence that properly comes to their attention.” Bennett, 369 A.2d at 494-495. Even if we were to apply Pennsylvania law, we find reasonable suspicion under the present facts. Accordingly, the evidence obtained subsequent to the canine sniff could properly support a Pennsylvania search warrant. The order of the trial court granting appellees’ suppression motions and requests for habeas corpus are reversed, and we remand for new trials consistent with this opinion.

Reversed and remanded; jurisdiction relinquished.

BECK, J. files a concurring opinion.

BECK, Judge,

concurring.

I concur in the result and also join in much of the majority’s rationale. I believe, however, that the majority unnecessarily delves into a discussion of substantive and procedural rights that does not advance our position. I would simply hold that the facts of this case are governed by Commonwealth v. Bennett, 245 Pa.Super. 457, 369 A.2d 493 (1976), which in my opinion is directly on point. I am particularly persuaded by the following language from Bennett, which is equally applicable to this case:

The information in question was derived through a wiretap legally authorized by the Superior Court of New Jersey pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act. While it is conceded that this information could not have been legally obtained under the laws of this Commonwealth had the wiretap occurred within our boundaries, the fact has no effect on information obtained in a sister state ...
If the legislature of a sister state or foreign jurisdiction determines that wiretapping will be permitted within its borders, we will not, under the present laws of Pennsylvania, question that decision. Nor should we hinder our law enforcement agencies by needless restrictions upon their use of information and evidence that properly comes to their attention.

Bennett, supra at 460-61, 369 A.2d at 494-95. I think Bennett controls this case, and therefore concur.

      . As discussed below, even if Pennsylvania law were to be applied, we would find the contested sniff search to be legal.

      . At the time that Bennett was decided, the statute authorizing wiretaps, 18 Pa.C.S.A. § 5701, et seq., prohibited the use in court of all evidence obtained by wiretap without consent.

      . Appellees contend that the, Commonwealth waived its right to appeal the grant of habeas corpus by failing to raise it specifically in its Concise Statement of Matters Complained of on Appeal. The Commonwealth filed a supplemental brief addressing this issue. Since the sole basis for granting appellees’ request for habeas corpus was the trial court's suppression of all the evidence, we find that the Commonwealth properly preserved the habeas corpus issue by appealing the suppression of the evidence. Commonwealth v. Hamme, 400 Pa.Super. 537, 583 A.2d 1245 (1990).


author: HESTER, Judge:

text:
    672 A.2d 835
    Ronald B. CAMPBELL and Anna Mae Campbell v. Sherry Daniel CAMPBELL, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1995.
    Filed March 11, 1996.
    Edward L. Crow, York, for appellant.
    Susan A. Docktor, York, for appellee.
    Before CAVANAUGH, KELLY and HESTER, JJ.
   HESTER, Judge:

Sherry Campbell, the natural mother of Michael and Nicole Campbell, appeals from the January 23, 1995 order of the York County Court of Common Pleas which transferred primary physical custody of her children to the paternal grandparents, Ronald and Anna Mae Campbell, appellees herein. We affirm.

Appellant (“Mother”) is divorced from appellees’ (“Grandparents”) son (“Father”). Two children were born of the marriage: Michael, born July 30, 1985, and Nicole, born July 3, 1987. Father, an alcoholic who subsists on social security disability income, is not involved with the children and sees them sporadically only under the supervision of Grandparents and only when he is sober. Notes of Testimony (“N.T.”), 1/6/95, at 40-41. Father is not involved in this appeal.

Mother and Father moved frequently after Michael’s birth in 1985. Mother, Father, and Michael lived with Grandparents outside of Johnstown, Pennsylvania, from November, 1985, until April, 1986, when they moved to York, Pennsylvania. Id. at 15. The parents moved again in the fall of 1986, stopping in North Carolina en route to Florida. The parents called Grandparents from North Carolina and asked them to come and get Michael, which they did. Id. at 17. Michael lived with Grandparents until sometime in the winter of 1987. Id. Nicole was born in July of that year, and the children often were left with Grandparents for weeks or months at a time. Id. at 16.

When the parents separated and divorced, Mother and the children lived with Grandparents in early 1990. In the fall, Mother enrolled Michael in kindergarten, left him in Grandparents’ care, and took Nicole to York, Pennsylvania. Some weeks later she returned, took Michael out of school, and went back to York. Id. at 18. In December, 1990, Mother called Grandparents and asked them to come to York and get the children. Id. at 19. Mother then granted Grandparents temporary legal and physical custody in February, 1991, and the children resided with Grandparents until August, 1991, when Mother took the children away again. Id. at 20. Grandparents unsuccessfully tried to locate the children throughout the next twelve months. Id. at 22.

Upon locating Mother, Grandparents filed a petition for visitation or partial custody in August, 1992, and a dependency action in October, 1993, based upon the deplorable care Mother was providing the children. The children were dirty, smelled of urine, had feces on their clothing, and at times lacked proper clothing, including underwear. On March 23, 1994, pursuant to a negotiated agreement between Mother and Grandparents, the common pleas court ordered that Grandparents and Mother share legal custody. Mother was awarded primary physical custody and Grandparents were given-partial physical custody every third weekend, one-half of the summer vacation, and various other school vacations. The court also ordered Mother, inter alia, to cooperate with York County Children and Youth Services and to obtain counseling for the children. Mother never appealed this custody order.

As a result of. information gained through the exercise of their partial custody rights and due to Mother’s non-compliance with the March 23, 1994 order, Grandparents eventually sought primary physical custody of the children. Hearings were held on January 6 and 13, 1995. Grandparents testified and presented the testimony of various witnesses, including Mother’s friends and neighbors, and the expert testimony of a licensed psychologist who evaluated the parties and the children, Mother presented only her testimony. The court interviewed the children in chambers.

On January 23, 1995, the common pleas court awarded primary physical custody to Grandparents and partial physical custody to Mother. This appeal followed. Mother does not question the findings of fact and conclusions of the trial court; rather, she asserts that Grandparents lacked standing to maintain this action. We reject Mother’s claim.

Mother has confused principles of standing with the proper standard to be applied in deciding a custody dispute between parents and third parties. See Walkenstein v. Walkenstein, 443 Pa.Super. 683, 663 A.2d 178 (1995) (natural mother confused burden of proof as to custody with principles of standing as they relate to a third party’s ability to pursue custody action against a natural parent). In making her claim that Grandparents lacked standing to seek primary physical custody of Michael and Nicole, Mother argues that “the trial court failed to make a finding that the mother’s prima facie right to custody was overcome.”

Mother’s argument in this regard is referring to a natural parent’s prima facie right to custody, a standard articulated in Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980), and based upon the rule discussed in In re Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977), which pertains to custody disputes between parents and third parties. However, our Supreme Court departed from this per se presumption in favor of natural parents in Rowles v. Rowles, 542 Pa. 443, 668 A.2d 126 (1995), and held that parenthood is to be weighed as a strong factor for consideration by the court. The Rowles Court stated, “Thus, there is no single overriding factor; rather, courts should consider every fact relevant to the physical, emotional, intellectual, moral, and spiritual well-being of a child. Parenthood, though not paramount, will always be a factor of significant weight.” Id., 542 Pa. at 448, 668 A.2d at 128 (emphasis added).

This process of weighing and comparing the relevant factors of the competing custodial environments is not the issue raised by Mother, however. While she has utilized case law pertaining to the standard to be applied by the courts in deciding custody disputes between natural parents and third parties, the issue she raises is that Grandparents lacked standing to pursue this matter.

The question of standing is rooted in the notion that for a party to maintain a challenge to an official order or action, he must be aggrieved in that his rights have been invaded or infringed. The law of standing provides that one cannot evoke the jurisdiction of the court to enforce private rights or to maintain a civil action for the enforcement of such rights, unless he or she has, in an individual or representative capacity, some real interest in the cause of action, or a legal right, title or interest in the subject matter or controversy.

Kellogg v. Kellogg, 435 Pa.Super. 581, 584, 646 A.2d 1246, 1248 (1994), quoting Jackson v. Garland, 424 Pa.Super. 378, 383, 622 A.2d 969, 971 (1993). We noted in Kellogg that traditional principles of standing are modified in child custody cases in that the relevant analysis considers the relationship of the parties asserting standing.

Clearly, there is no issue of standing in this case. Grandparents were granted joint legal custody of these children with Mother’s agreement in March, 1994. Mother never appealed that order of custody. Having joint legal custody of the children and partial physical custody, Grandparents clearly had standing to seek primary physical custody. See Tracey L. v. Mattye F., 446 Pa.Super. 281,-, 666 A.2d 734, 735 (1995) (third party, who not only acted in loco parentis but previously was awarded custody, clearly had standing to challenge custody order); Walkenstein v. Walkenstein, supra (Grandmother established her standing since she was granted custody of child by court order, and order never was appealed).

Mother’s related argument in this appeal is that since Grandparents lacked standing to pursue primary physical custody, the only valid basis for the trial court’s order was a finding of dependency, and the court erred, if its order is interpreted as a finding of dependency, in failing to establish a service plan. We need not address this issue as we have determined that Grandparents did indeed have standing to seek physical custody. Thus, any argument based on dependency is irrelevant.

Order affirmed.

CAVANAUGH, J., concurs in the result.

      . The common pleas court termed this "majority” physical custody.

      . We are unable to cite to pages of appellant’s brief as she has failed to number it.