author: HESTER, Judge:

text:
    629 A.2d 996
    Ronald WISKOSKI v. Karen WISKOSKI, Appellant.
    Superior Court of Pennsylvania.
    Argued May 11, 1993.
    Filed Aug. 9, 1993.

      Paul J. Levy, Palmerton, for appellant.
    Joseph C. Zola, Wilkes-Barre, for appellee.
    Before BECK, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Karen Wiskoski, Mother, appeals from the order of the Carbon County Court of Common Pleas granting appelleeFather, Ronald Wiskoski, primary physical custody of the parties’ son, Zachary, beginning August 1, 1993. For the reasons which follow, we reverse.

Mother and Father married on March 20, 1988. One child, Zachary, was born of the marriage on October 16,1988. This was Father’s first marriage. Mother had been married before, and her two children from that marriage, Bob and Sean, resided with the parties and Zachary. At the time of the custody hearing, Bob was eleven, Sean was eight, and Zachary was nearly four. On February 7, 1992, the parties separated when Mother left the marital residence with the children and returned to Rhode Island where the family had lived from the time of the marriage until July, 1990.

The order appealed from provides that the parties share legal custody of Zachary. It further provides that from October 15,1992, until July 31,1993, primary physical custody of Zachary alternate between the parties for three to six month intervals. Beginning August 1, 1993, the order provides as follows:

3. Beginning August 1, 1993 and until otherwise modified, primary physical custody of Zachary shall be divided as follows:
a. Ronald Wiskoski shall have primary physical custody of Zachary during the school year with the exception of Christmas vacation, at which time Karen Wiskoski shall have the right to primary physical custody for the period of December 26 through January 1.
b. Karen Wiskoski shall have primary physical custody of Zachary during the non-school summer months: In calculating this time, (sic) Mother’s custody shall begin two (2) days after school closes and terminate two (2) days before school reopens.

Based upon our consideration of the arguments of the parties, the opinion of the trial court, and our review of the notes of testimony, we conclude that appellant’s arguments have merit.

It is clear that in matters of custody and visitation, the ultimate consideration of the court is a determination of what is in the best interests of the child. Such a determination, made on a case-by-case basis, must be premised upon consideration of “all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.” Lee v. Fontine, 406 Pa.Super. 487, 488, 594 A.2d 724, 725 (1991), citing Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130 (1990). In Stolarick v. Novak, 401 Pa.Super. 171, 584 A.2d. 1034 (1991), we reiterated our scope of review as defined in Mumma v. Mumma, 380 Pa.Super. 18, 21, 550 A.2d 1341, 1343 (1988), as follows:

In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported in the record, nor are we bound by the court’s inferences drawn from the facts. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 294-95, 368 A.2d 635, 637 (1977). However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Id. at 295, 368 A.2d at 637. Only where we find that the custody order is “manifestly unreasonable as shown by the evidence of record ...” will an appellate court interfere with the trial court’s determination.

See also Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988); Andrews v. Andrews, 411 Pa.Super. 286, 601 A.2d 352 (1991).

Mother asserts that the trial court abused its discretion in awarding primary physical custody of Zachary to Father during the school year. In support, she contends the trial court failed to acknowledge her role as the primary caretaker, failed to consider the abuse to which Father had subjected her and the children, and failed to consider that its order results in the separation of siblings. In addition, she claims the court’s factual findings and inferences therefrom are not supported by the record. We agree.

Absent compelling reasons to the contrary, it is the policy of this Commonwealth that siblings should be raised together whenever possible. Pilon v. Pilon, 342 Pa.Super. 52, 492 A.2d 59 (1985). “This factor is not diluted by the fact that the children involved are half brothers and sisters.” In re Davis, 502 Pa. 110, 124, 465 A.2d 614, 621 (1983). While this factor cannot be elevated automatically above all other factors, it must be weighed in conjunction with the others. Id. (Emphasis added.) “Good reasons” are not necessarily “compelling” reasons for disrupting the integrity of a family unit. Pilon v. Pilon, supra. “In defining the phrase ‘compelling reasons’ this court has said that the evidence must indicate that it was ‘necessary’ to separate the children, and the evidence was ‘forceful’ in this regard.” Cyran v. Cyran, 389 Pa.Super. 128, 132, 566 A.2d 878, 880 (1989), citing Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980). Absent compelling reasons, “the children should be raised together in one household, for this permits the continuity and stability necessary for a young child’s development.” Pilon v. Pilon, supra, 342 Pa.Super. at 56, 492 A.2d at 60.

The testimony from all of the parties establishes that Zachary,-Sean, and Bob were raised as brothers. E.g., N.T., 6/22/92, vol. 2, at 70. Due to the age disparity, there were some activities, such as sports, in which the older boys participated that Zachary did not, but he accompanied them on all of the outings that his age permitted. From the time Zachary was born, he has grown amidst two big brothers, and except for the period from November 1, 1992, through January 31, 1993, when the court ordered that Zachary reside with Father, the boys have been together. Obviously, to allow Father time with Zachary, the boys will be separated over the summer and during some holidays. However, Father has offered no compelling reasons, indeed, no reasons at all, to separate the children, and the trial court failed to consider this doctrine of “family unity” or “whole family doctrine.” This was error.

Second, in light of our scope of review, we find that there are a myriad of factual findings and inferences drawn therefrom which are unsupported in the record. First, the trial court concluded that Father was responsible for all of the children’s evening meals, homework supervision, discipline, and personal hygiene. This finding, and its inference that Father was the primary caretaker, are not supported by the evidence. While it is true that Father made such a sweeping claim, Mother testified to the contrary, and the other evidence in the record supports Mother. Father did testify that he was responsible for all of the care that the boys received. However, it is more accurate that when Father worked daylight, Mother worked as a waitress from 4:00 or 5:00 p.m. until somewhere between 11:00 p.m. and 2:00 a.m. in order to avoid leaving the children with a babysitter. When he worked second or third shift, she worked daylight. N.T., vol. 2, at 103-04. When Mother was not working in the evening, she was responsible for meeting the children’s physical needs. Id. at 88. During the day, Father was gone from 7:00 a.m. until 3:00 p.m., and Mother cared for the children.

The record also supports the conclusion that Mother was forced to work due to the financial instability occasioned by Father’s frequent unemployment. In the eighteen months that the family lived in Pennsylvania, counting from the time they moved from Rhode Island in July, 1990, until Mother and the children left on February 7, 1992, Father’s own testimony established that he had been laid off four different times and has held four different jobs. N.T., vol. 1, at 35.

When both parents are otherwise fit, one parent’s role as the child’s primary caretaker may be given weight as a determining factor by the court. Mumma v. Mumma, 380 Pa.Super. 18, 550 A.2d 1341 (1988). In the instant case, there are two problems with the application of this doctrine. First, it comes into play only when the parties are equally fit. In light of Father’s violent and abusive nature, which we discuss infra, clearly the parties are not otherwise equally fit. Second, even if they were, the evidence tends to establish that during the time that Father was working daylight and Mother was working second shift, the parties functioned as equal caretakers of the children. At other times, Mother functioned as the primary caretaker.

The trial court, in addressing this issue in its supplementary opinion dated January 6, 1993, evaluated the parties’ roles only during the time that Father worked daylight and Mother worked evenings. Moreover, even though the court determined that “there was a paucity of evidence from which we could evaluate [the parties’] suitability for [Zachary],” it went on to make findings on this issue without adequate support in the record.

The trial court’s attitude throughout the proceedings is troubling. Father and all of his family witnesses are lifelong residents of Carbon County. Mother is a native of Rhode Island who found her life in Carbon County intolerable, mostly due to Father’s abuse, but also due to the controlling nature of her husband’s family and the lifestyle they led. She went so far as to testify that life in Rhode Island provides “a lot to do, more so ... than anything here. Here was total woods. It was more of a man’s job to go out and shoot the BB gun or go out and shoot the bow and arrow or — whereas we do things that anyone could participate in, male or female.” N.T., vol. 2, at 72.

As to Father’s family, it is clear, their protestations to the contrary notwithstanding, that they did not approve of Mother. Mother and all of Father’s witnesses testified at length concerning the unacceptability to Father and his family of Mother’s job as a waitress and Mother’s alleged unwillingness to pursue an education. The tone and tenor of the trial court opinions also present a subtle bias against Mother for unacceptable and unsupportable reasons. For example, in assessing Mother’s credibility, the trial court stated, “[W]e conclude mother exaggerates. Several factors support this conclusion. First, during our hearing mother aspired to appear sophisticated. This attempt was frequently belied by bad word usage and pronunciation.” Trial court opinion, 10/15/92, at 5. In the first place, we fail to see the court’s logic that a person who uses poor grammar or pronunciation is prone to exaggeration. More importantly, however, a person’s use of grammar and pronunciation absolutely has no effect on whether that person is either a credible witness or, more importantly, a good parent. Mother testified that she quit high school during her senior year because she was pregnant with her first child. One might expect someone with this background to present with less than flawless speech. Further, if the court is interested in analyzing the ungrammatical and improper word usage of the witnesses who appear before it, we suggest a more balanced analysis, as the same language usage was exhibited by Father. N.T., vol. 1, at 16,19, 21, 27, 42-43, 51-53.

Second, the trial court determined Mother to be incredible based upon her testimony that she had overcome her abuse of alcohol while living with Father in light of “her acknowledged history of alcohol abuse and the recurring nature of its more serious cousin, alcoholism.” Trial court opinion, 10/15/92, at 5. Again, the trial court’s factual finding and its inference are not supported by the record and reflect the trial court’s subtle bias against Mother. A reading of the notes of testimony establishes that Father and his family are heavy drinkers. The focus of all family get-togethers was alcohol. Mother acknowledged this pattern of drinking and described it as one of the reasons she left Pennsylvania. N.T., vol. 2, at 50, 53, 81. In fact, she presented evidence of her completion of Codac, a program of alcohol abuse counseling which involved the administration of breathalizer and urinalysis testing. She also enrolled the children in DARE, a substance abuse program, in Rhode Island. The report from Codac states that Mother does not require further treatment and that all breathalyzers were negative. The trial court refused to credit this report and determined, based on its disbelief that Mother could not have overcome her alcohol-related problem in such a short period, that Mother was an incredible witness. Clearly, the court’s factual finding on this issue, and the inference therefrom is not supported by the record.

Most telling on this issue of alcohol abuse is the pervasiveness of it throughout the record, and yet Father and his witnesses all refuse to acknowledge it as a problem. During the hearing, the trial court commented on it, yet ignored it when setting forth its factual findings. The trial court stated:

Let me say this to counsel. I mean, you’ve — with all your witnesses, your documenting, you’re beating a dead horse at this point on the alcohol. I mean, we’ve concluded that there’s some — there was one comment by a witness earlier that said that the arguments were always preceeded by drinking — or primarily. We accept that that was going on; and I think, if the truth be known, all the witnesses would say they would have liked to have seen everybody go get help.

N.T., vol. 2, at 32. Yet, when determining credibility, the trial court found Mother incredible based upon her testimony that she had addressed her alcohol problem, as supported by the report from Codac, and did not find Father incredible based upon his testimony that he had no problem with alcohol. Yet all of the testimony, including that of Father, established Father as a heavy drinker who became extremely loud and violent. The night before Mother left the marital residence, she had been working. Father arranged for a babysitter and went out drinking with a friend. Although the babysitter had to be home at 10:00 p.m., Father called her and asked her to call her parents so that he could stay out longer. He arrived home about 11:00 p.m., with his drinking companion, and Mother arrived home from work shortly thereafter. Father was angry that Mother was upset about his going out drinking and stalked out of the house, telling Mother she could not tell him what to do and how to do it. Id. at 55.

When he returned at 3:30 or 4:00 a.m., again with his drinking partner and tried to go to bed with Mother, she told him to sleep on the couch. What transpired after that differs according to the parties. Mother testified that Father punched her and dragged her out of bed by her hair. Father testified that any blows Mother received resulted from his efforts to defend himself. Both parties agreed that the children, crying and screaming, witnessed the incident. Mother and the children left the next day.

The trial court’s only comment about the incident which culminated in the parties’ separation, was that “mother’s highly emotional state ... gave father’s claim of limited self-defense a ring of truth. We could easily see her provoked by father’s unannounced night out with a family friend.” Trial court opinion, 10/15/92, at 6. There is no basis in the record for such a conclusion. On the other hand, we find little Zachary’s testimony quite significant. The trial court completely ignored it, saying only that the “brief testimony of Zachary was not helpful----” Trial court opinion, 1/6/92, at 4. We believe it is one of the only truly objective pieces of evidence in the record. The court asked Zachary if he would like to see both Mother and Father, and Zachary replied, “They don’t live together now.” The trial court followed with, “Do you wish they did?”, to which the child replied, “Uh-huh. No, I don’t, ‘cause my dad hits her.” Notes of Testimony, 8/26/92, at 9.

The bias of the trial court against Mother and the resulting findings that are unsupported by the record are numerous, and we need not underscore every one. We will note, in addition to the findings above, that the court discounted the testimony of Mother’s witnesses based upon the fact that they were family and friends but did not similarly reject the testimony of Father’s witnesses, who were all family except one. Moreover, the trial court concluded that “[tjhere were no serious contentions that father had an alcohol problem,” yet at the hearing, the court acknowledged the significant effect alcohol played in the dynamics of this family, as noted supra.

It is clear to us that the failure of the trial court to consider the whole family doctrine and to apply properly the primary caretaker doctrine, coupled with the pervasive bias against Mother and the improper and unsupported factual findings, require that this case be reversed. In concluding that Zachary should reside with his siblings and Mother during the school year beginning September 1, 1993, we are mindful that Zachary has not been with Father since February, 1993. Therefore, from the date of this order until August 31, 1993, Father will have primary physical custody of Zachary. Beginning September 1, 1993, Mother will have primary physical custody during the school year. The trial court, on remand, will enter an appropriate order providing for summer visitation with Father in addition to determining holiday visitation.

Order reversed and remanded for entry of an order consistent with this Memorandum. Jurisdiction relinquished.

      . There are two volumes of testimony dated June 22, 1992. One volume indicates that it represents the morning session that day, and the other represents the afternoon session. Hereafter, the morning session will be referred to as vol. 1, and the afternoon session as vol. 2.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    629 A.2d 1002
    Dustin Elwood KELLY, A Minor, by Lisa KELLY, His Mother and Natural Guardian; and Lisa Kelly, In Her Own Right; and Roy Kelly In His Own Right, Appellants, v. David R. ICKES, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued June 22, 1993.
    Filed Aug. 9, 1993.

      James B. Cole, Pittsburgh, for appellants.
    Amy E. Livermore, Hollidaysburg, for appellee.
    Before OLSZEWSKI, HOFFMAN and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the Honorable Norman D. Callan’s order granting summary judgment in favor of appellee, David R. Ickes. Appellants brought this negligence action against Ickes on behalf of their minor son, Dustin, who suffered severe injuries from a fall inside their premises. We reverse the entry of summary judgment and remand for trial.

Lisa Kelly [“Kelly”] resided with her husband and two infant children in an apartment owned and leased to her by Ickes. The apartment is a duplex with an open staircase. Kelly testified in a deposition that she told Ickes on several occasions that without a railing, the staircase presented a hazard to her children. Ickes promised on several occasions to install a railing; during one visit to Kelly’s apartment, Ickes refused to install a wooden post that Kelly’s father gave her specifically to remedy the problem. Ickes contended that the post was too wide for the bottom of the stairs and that “he would probably just have to run posts down” in order to correctly resolve the problem. Ickes never returned to do the job, however, and on December 1, 1988, Dustin fell and injured himself.

Lisa and Roy Kelly instituted this action on Dustin’s behalf, alleging that Ickes assumed a duty to repair the staircase, which he performed negligently. After the pleadings were closed and discovery was final, defendant moved for summary judgment. Judge Callan granted the motion, holding that Ickes, as an out-of-possession landlord, is not responsible for dangerous conditions that are known to the tenant, unless he contracted to repair them and refused to do so. Klais et ux. v. Guiton, 344 Pa. 600, 26 A.2d 293 (1942); see Kobylinski v. Hipps, 359 Pa.Super. 549, 519 A.2d 488 (1986). The trial court found that since there was no consideration for any of Ickes’ promises to fix the staircase, he could not be found liable for refusing or negligently performing the repairs. Judge Callan relied on Reitmeyer v. Sprecher, 431 Pa. 284, 243 A.2d 395 (1968), and § 357 of the Restatement (Second) of Torts for this proposition.

On appeal, Kelly argues that summary judgment was improperly granted because genuine issues of material fact exist as to whether Ickes promised to repair the staircase and whether Kelly relied on the promise by not taking independent measures to have a railing installed. She contends that a factual dispute brings this case within the ambit of § 323 of the Restatement (Second) of Torts, which provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

Id. We agree. Before reaching the merits of the argument, however, we must review the standard for awarding summary judgment and consider Ickes’ argument that Kelly has waived the invocation of § 323 to oppose entry of summary judgment by failing to argue its application below.

In summary judgment proceedings, the court’s function is not to determine the facts but only to determine if a material issue of fact exists. McDonald v. Marriott, Inc., 388 Pa.Super. 121, 564 A.2d 1296 (1989); Ackler v. Raymark Industries, Inc., 380 Pa.Super. 183, 551 A.2d 291 (1988). Summary judgment may be granted only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. Rule 1035(b), 42 Pa.C.S.A. The trial court must examine the record in the light most favorable to the non-moving party and accept as true all well-pleaded facts in his or her pleadings as well as give him or her the benefit of all reasonable inferences drawn therefrom. Dibble v. Security of America Life Ins., 404 Pa.Super. 205, 590 A.2d 352 (1991); Lower Lake Dock Co. v. Messinger Bearing Corp., 395 Pa.Super. 456, 577 A.2d 631 (1990). Finally, summary judgment should be granted only in cases that are free and clear of doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). We must reverse if the trial court has committed an error of law or has committed a manifest abuse of discretion. Cams v. Yingling, 406 Pa.Super. 279, 594 A.2d 337 (1991).

Here, the trial court granted the motion for summary judgment, on the basis that Ickes did not contractually undertake a duty to repair the staircase and he could not be liable for failing to do so. The trial court did not consider the applicability of § 323 of the Restatement (Second) of Torts, however, which imposes liability for personal injury where a landowner “gratuitously” undertakes to provide a service for the protection of the promisee, if the promisee suffers harm as a result of relying on the promise. Ickes contends that this deficiency is attributable to Kelly, since she failed to file a response to his motion for summary judgment and did not raise the issue in her brief opposing the motion. Thus, Ickes claims that Kelly has waived the issue as presented to this Court. See Pa.R.A.P. Rule 302, 42 Pa.C.S.A. (issues not raised before trial court may not be raised for first time on appeal). We disagree.

Contrary to what Ickes argues, a party opposing a motion for summary judgment is not required to file a responsive pleading, and the failure to do so does not amount to waiver of issues that could have been raised. Moore v. Gates, 398 Pa.Super. 211, 580 A.2d 1138 (1990), alloc, denied, 527 Pa. 617, 590 A.2d 758 (1991). As we have stated:

[F]ailure to raise the issue of inadequate support for a motion for summary judgment does not result in waiver of that issue since the trial judge has a duty to deny such motions even if the opposing party has not responded.

Johnson v. Johnson, 410 Pa.Super. 631, 636, 600 A.2d 965, 967 (1991). In Johnson, we addressed the non-movant’s argument that summary judgment was improperly entered in violation of Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), even though the issue was not raised in the lower court. Id.; see also Garcia v. Savage, 402 Pa.Super. 324, 586 A.2d 1375 (1991) (Nanty-Glo issue not waived on appeal for failing to file response to summary judgment motion in trial court). We acknowledge that although Kelly did not file a responsive pleading opposing the summary judgment motion, she did file a brief opposing the motion which did not refer to § 323 of the Restatement. In this respect, the present case differs from Johnson and Garcia, since in those cases it appears that the parties opposing summary judgment filed no response at all to the summary judgment motion, and we held that the choice to forego filing a response could not be held against them on appeal.

We are not persuaded, however, that Kelly’s presentation of a “new theory” on appeal operates as a waiver of her right to oppose entry of summary judgment on those grounds. Although Ickes correctly asserts that this Court will normally not entertain a theory on appeal that was not presented below, the justification behind this policy is not implicated when a party is in the position of opposing a summary judgment motion. In both Garcia and Johnson, supra, we did not find waiver because the trial judge is under a duty, regardless of whether the non-movant files a response, to review the entire record to determine whether a genuine issue of material fact exists, and whether the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b). This duty should not change when the moving party chooses to file an argument in opposition, even though the argument does not specifically refer to authority supporting a cause of action which it has thoroughly pled and supported through the discovery process. A trial judge may grant summary judgment only in cases that are clear and free of doubt. Marks, supra. Summary judgment is therefore improper in any case where the pleadings and discovery indicate that there are factual issues that, if resolved in favor of the non-movant at trial, will justify recovery under any theory. Since it is clear that § 323 of the Restatement (Second) of Torts is recognized as the law in this Commonwealth, see Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980), Ickes’ motion was improperly granted if factual question exist which would entitle Kelly to recover under this theory.

We recognize that this holding places a burden on the trial judge to discover plaintiffs theory of the case. This burden, however, is not unorthodox; at the demurrer stage, it is always incumbent upon the trial judge to determine whether the facts pled in the complaint state any theory upon which plaintiff may recover. Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 505 A.2d 973 (1985). In this case, the summary judgment motion was more akin to a demurrer than a true motion for summary judgment, since the trial court held that even if the factual issues presented by the non-movant were proven at trial, she would not be entitled to relief as a matter of law. It might have been less time consuming, and certainly more prudent, for Kelly to identify § 323 by name, but her failure to do so cannot be held against her. If she has pled facts that state a cause of action under Pennsylvania law, and the discovery reveals factual issues regarding those allegations, summary judgment is improper. Kelly did not waive the issue, and we will address it.

The essence of § 323 of the Restatement (Second) of Torts as it applies to landlord/tenant cases is that where the landlord undertakes, gratuitously or for consideration, to perform a service for his tenant which he recognizes as necessary for the tenant’s protection, he is liable for harm caused by his refusal to perform or negligence in performing, if tenant has relied on the promise. Thus, in both Feld, supra, and Reider v. Martin, 359 Pa.Super. 586, 519 A.2d 507 (1987), alloc. denied, 517 Pa. 594, 535 A.2d 83 (1987), our appellate courts held that a landlord could be liable for injuries caused to tenants by third-party felons if the tenants could establish that they relied on the landlord’s undertaking to provide them with a security protection system. Here, Ickes is liable to Kelly for injury suffered as a result of the dangerous condition if she can prove at trial that Ickes knew that repairing the staircase was necessary for the protection of her child, and that she relied on his promise to alleviate the condition.

Discovery and the pleadings in this case clearly create factual questions as to these issues. Kelly testified that she informed Ickes on several occasions of the problems, and that Ickes promised her that he would install a handrail. She also began an affirmative effort to repair the premises on her own by procuring a wooden post from her father. Since Ickes told her that the wooden post was unacceptable and assured her that he would remedy the situation by himself, a jury could easily infer that she relied on Ickes’ promise to install a handrail, and that Dustin’s fall was a proximate result of Ickes’ failure to repair. We recognize that Ickes claims that he never made any promises, but a jury must resolve the contradiction in the testimony.

We also disagree with the trial court’s conclusion that any of Ickes’ promises were unsupported by consideration and that Kelly’s claims are barred by the parol evidence rule. Both Ickes and the trial court rely heavily on Reitmeyer v. Sprecher, 431 Pa. 284, 243 A.2d 395 (1968). Their reliance is misplaced.

In Reitmeyer, plaintiff'tenant was injured after falling on her defective rear porch floor. Tenant alleged in her complaint that landlord was aware of the defect and that as an inducement to enter into the lease agreement he promised to fix the porch. In ruling on landlord’s demurrer, our Supreme Court abandoned the rule that a contractual promise to repair a defect in the leased premises at the time the tenant took possession did not impose upon the landlord liability in tort if the tenant sustained injuries as a result of the defect. Instead, the Court adopted a more liberal rule, embodied in the Restatement (Second) of Torts, § 357:

A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if
(a) the lessor, as such, has contracted by covenant in the lease or otherwise to keep the land in repair, and
(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and
(c) the lessor fails to exercise reasonable care to perform his contract.

Id. at 287, 243 A.2d at 396. The Court held that since landlord’s promise to fix the porch was supported by consideration (as a result of the promise tenant entered into the lease agreement), he could be held liable in tort under § 357 if he proximately caused tenant’s injuries by failing to exercise reasonable care in making the repairs. Id. at 290, 243 A.2d at 398.

Here, Judge Callan held, and' appellee urges, that since the record contains no indication that Kelly was induced to enter into the lease agreement in reliance on Ickes’ promise to repair the staircase, any promise by Ickes is unsupported by consideration, rendering § 357 inapplicable. We disagree. Although the record contains no factual issues which would establish that Ickes’ promise induced Kelly to enter into a lease, § 357 is not limited to the factual scenario present in Reitmeyer. The Supreme Court’s purpose in adopting the rule was much more broad. The rule is designed to place a tenant on equal footing with his or her landlord, simply by holding a landlord responsible for the safety of tenants when he has retained “control” over a portion of the leased premises by contractually agreeing to maintain it. Id. at 288-89, 243 A.2d at 397. The Court also pointed out that the rule is justified because “by reason of the special relation between a landlord and tenant, there is a likelihood that the latter will rely on the former to make repairs and be induced to forego efforts which he would otherwise make to remedy a dangerous condition on the premises.” Id. Indeed, § 357 indicates that a lessor may undertake the duty as a covenant in the lease or “otherwise.” Moreover, the section anticipates that a landlord may contractually assume a duty to repair after the lease agreement is signed, because it applies not only to conditions that exist at the time the tenant takes possession, but also to defects “arising after the lessee has taken possession.” Thus, Kelly and Ickes could have entered into a contractual agreement for the repair of the staircase that was independent of the lease.

Here, we find that the pleadings, depositions, and answers to interrogatories provide a genuine issue of material fact regarding whether Ickes undertook a contractual obligation to repair the staircase. As we have noted, Kelly testified in her deposition that during a visit by Ickes sometime after Ickes had become landlord of her premises, Ickes dissuaded her from installing a wooden pole which her father gave her to remedy the defect. See R.R. at 46a. This testimony supports a reasonable inference that Kelly forbore from remedying the situation herself, or hiring someone else to install the pole. This forbearance would, if proven, act as consideration for Ickes’ promise to repair the stairs. As such, it cannot be held that it is “clear and free from doubt” that Ickes is entitled to judgment as a matter of law.

We are mindful of our position as an appellate court reviewing summary judgment and in no way attempt to resolve the substantive dispute between Kelly and Ickes. We do feel, however, that summary judgment is a procedural device best kept for those cases in which a trial would be a fruitless effort for plaintiff. Here, however, the record is clear that Kelly has established genuine issues of material fact under the Restatement (Second) of Torts, §§ 323 and 357. She is entitled to have a jury hear her evidence.

Judgment reversed; case remanded for trial. Jurisdiction relinquished.

      . Ickes purchased the property from a previous owner in 1985, at which time he entered into a written lease agreement with the Kellys, who lived in the premises at the time of the ownership change. A copy of the lease was not made a part of the record; Kelly testified in her deposition that Ickes did not provide her with a copy when she signed it in 1985.

      . Ickes contends that the parties waived oral argument on his motion for summary judgment, submitting the issue to Judge Callan for resolution on the briefs. Interestingly, however, the briefs were not made a part of the record, and Ickes made no effort to supplement the reproduced record to substantiate his claim that Kelly never mentioned § 323 of the Restatement (Second) of Torts below. Since we resolve the issue against Ickes by assuming that what he claims is true, see infra, we will not engage in a discussion of who bore the burden of completing the record in this regard.

      . Consideration sufficient to support the existence of a contract confers a benefit upon the promisor or a detriment upon the promisee; a "bargained for exchange.” Dakar v. Grzandziel, 410 Pa.Super. 85, 599 A.2d 217 (1991). Here, if Kelly can prove that she would have installed the pole but for Ickes’ promise that he would remedy the situation, Ickes clearly benefitted from this forbearance because he received what he bargained for — he did not want that pole installed.
      Moreover, since the alleged contractual duty occurred after the execution of the lease agreement, the parol evidence rule is not implicated. Nicolella v. Palmer, 432 Pa. 502, 248 A.2d 20 (1968).


author: CAVANAUGH, Judge.

text:
    629 A.2d 1007
    COMMONWEALTH of Pennsylvania v. Jeremy COSGROVE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 9, 1993.
    Filed Aug. 11, 1993.

      Theodore H. Swan, Jr., Abington, for appellant.
    Patricia E. Coonahan, Asst. Dist. Atty., Cheltenham, Philadelphia, for Com., appellee.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   CAVANAUGH, Judge.

The issue presented in this appeal is whether the Commonwealth may continue to prosecute at trial offenses which have been already found by a court not to constitute a violation of the terms of the accused’s probation. Appellant argues that principles of double jeopardy and collateral estoppel preclude his being tried on criminal charges where he had previously been found not to be in violation of probation based upon the charged offenses. The lower court held that the subsequent criminal prosecution was not barred and certified the issue for interlocutory review.

Appellant Jeremy P. Cosgrove pled guilty to burglary in December, 1991. He was sentenced to a term of four years probation. On February 29, 1992 he was arrested and charged with attempted homicide, aggravated assault, weapons offenses, and related charges. The new arrest was based upon a confrontation between appellant and James Plenderleith in a parking lot after a concert. Appellant was accused with stabbing Mr. Plenderleith twice with a knife. On March 3, 1992 appellant was notified by the Adult Probation-Parole Department that he was charged with violating the conditions of his probation by being arrested on February 29th on the above-cited charges.

On March 10, 1992 a preliminary hearing was held on the new charges. Mr. Plenderleith was the sole witness. He stated that a violent confrontation between skinhead groups had broken out at the concert. He testified that while he was in the parking lot after leaving the concert appellant walked by him using profanity and shouting. Mr. Plenderleith told him to be quiet and when appellant did not, they exchanged words and ran at each other “with equal force.” Mr. Plenderleith said he was expecting a fist fight and was not armed but that he was stabbed by appellant. On cross-examination, defense counsel sought to demonstrate that Mr. Plenderleith was the aggressor and that he was a skinhead and a person of violent propensities. Appellant was held over for trial on all charges except disorderly conduct.'

On June 22,1992 the probation revocation hearing (Gagnon II) was held before the Honorable Samuel W. Salus, II. The Commonwealth presented two witnesses: Mr. Plenderleith and Police Officer Karl Jones. Judge Salus denied appellant’s request to continue the revocation hearing until after the trial.

Mr. Plenderleith again testified that the appellant was the aggressor in their confrontation with one another. He admitted to possibly using profane language himself during the confrontation. He also described the course of medical treatment that he underwent after appellant stabbed him. Mr. Plenderleith indicated that he had two permanent scars and had damage to the nerves on the bottom part of his forearm. Again on cross-examination, defense counsel questioned Mr. Plenderleith concerning his affiliation with rightist politics and neo-Nazi and skinhead groups. Mr. Plenderleith admitted that he was arrested on April 18,1992 (after the confrontation with appellant) at Plenderleith’s residence. At that time there were many people present at his home for a party. Defense counsel questioned Mr. Plenderleith about his arrest and sought to elicit an admission that it was in fact a party in honor of Adolf Hitler’s birthday. This was denied by Mr. Plenderleith who maintained the party was for the birthday of a friend of his.

Officer Jones testified that he was present at the scene on February 29th at the concert and that many people had identified appellant as the person who had stabbed Mr. Plenderleith. Officer Jones approached appellant as he was sitting in his car and he asked appellant to produce the knife he had used to stab Mr. Plenderleith. Appellant told him it was under the seat and the knife was retrieved by Officer Jones. At the conclusion of the Gagnon II hearing on June 22, Judge Salus found that on the basis of the evidence produced he would not find appellant in violation of his probation. The Judge concluded that he was unable to determine who was the aggressor in the confrontation.

In the instant case, appellant filed a Motions to Dismiss and for Habeas Corpus, a Motion for Bail and, a Motion to Disqualify the Commonwealth’s attorney. The lower court, the Honorable S. Gerald Corso, held a hearing on these motions on August 4, 1992. Defense presented two witnesses: Detective Scott Kelly and appellant. Detective Kelly’s testimony consisted of identification of photographs taken by him at Mr. Plenderleith’s residence at the time of his arrest on April 18, 1992. These photographs depicted Ku Klux Klan certificates, newspapers and other documents relating to neoNazi activities. One photograph showed a white robe with a Ku Klux Klan insignia. Detective Kelly also testified to conversations he had had with Mr. Plenderleith concerning his affiliation with skinhead organizations and the Ku Klux Klan. The purpose of this evidence was to demonstrate that Mr. Plenderleith, rather than the appellant, provoked the February 22d altercation. Appellant’s testimony was directed to the issue of bail and did not directly relate to the incident on February 29th.

Judge Corso denied the Motion to Dismiss and for Habeas Corpus. Relying upon an opinion authored by President Judge William T. Nicholas, he found that the failure of the Commonwealth to carry its burden to prove a probation violation by a preponderance of the evidence did not collaterally estop the prosecution of the underlying charges. The memorandum opinion by President Judge Nicholas in Commonwealth v. Davis, (Montg.Cty.C.P.1992) analyzes the claim of double jeopardy/collateral estoppel. Judge Nicholas considered U.S. Supreme Court precedent and concluded that a probationer has not been placed in jeopardy for new criminal charges when a probation revocation hearing is held prior to trial on the new charges. The opinion then addresses the collateral estoppel argument in the context of prior Pennsylvania case law and public policy. It cites cases from other jurisdictions which have held that a prior revocation hearing does not bar a criminal trial for the same conduct. It concludes that the societal interest in prosecuting charges requires that the Commonwealth have a fair opportunity to prove the charges against a defendant beyond a reasonable doubt.

Our court recently addressed the concept of the doctrine of collateral estoppel:

“The doctrine of collateral estoppel prevents relitigation between parties of an issue where that issue has been previously decided by a competent legal forum. The doctrine is applicable to criminal prosecutions as well as to civil matters.” Commonwealth v. Wallace, 411 Pa.Super. 576, 581, 602 A.2d 345, 348 (1992). The doctrine, “which is part of the concept of double jeopardy, requires that where an ultimate fact has been necessarily established in favor of a defendant in a former prosecution, the issue may not be relitigated in any subsequent proceeding against the defendant.” Commonwealth v. Wharton, 406 Pa.Super. 430, 432, 594 A.2d 696, 697 (1991) (emphasis in original) (citations omitted).

Commonwealth v. Smith, 426 Pa.Super. 31, 626 A.2d 178, 181 (1993).

On appeal, appellant argues that because the Commonwealth failed to demonstrate a probation violation by a preponderance of the evidence, it should not be afforded the opportunity of trying him on the criminal charges where the burden of proof is greater, i.e., guilt beyond a reasonable doubt. Appellant cites authority from five states which, he argues, is supportive of the bar to prosecution. He also relies upon the case Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371 (1983), inter alia, as a basis for precluding trial on the criminal charges.

In Brown, the Commonwealth requested to defer the conduct of the probation revocation hearing until after the criminal trial. At the trial, the defendant was acquitted of the criminal charges. The Commonwealth then sought to hold the probation revocation hearing based upon the same activities which formed the criminal charges. The hearing was held and Brown’s probation was revoked. The supreme court vacated the revocation of sentence because it found that the prior acquittal prevented the Commonwealth from relitigating the issue of defendant’s participation in the criminal episode. Since the Commonwealth had elected to defer to the judgment of the jury, it was not entitled to an additional opportunity to relitigate the same issue applying a preponderance of the evidence test. Id. at 527, 469 A.2d at 1377. Since a defendant is bound in a subsequent revocation hearing by an earlier verdict of guilt, Commonwealth v. Burrell, 497 Pa. 367, 441 A.2d 744 (1982), the Commonwealth is also bound by the verdict of acquittal. Id. at 528, 469 A.2d at 1378.

The court in Brown reiterated the permissibility of a probation violation hearing being conducted prior to a trial for the criminal charges based on the same activities. Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973). The revocation hearing should be held “as speedily as possible.” Pa.R.Crim.P. 1409, cited in Brown, supra at 524, 469 A.2d at 1376. Given the constitutionality of a pre-trial revocation hearing and given a defendant’s right to a trial on the criminal charges, the position advocated by appellant is untenable. Clearly if probation is revoked in a pre-trial hearing, the ruling of the probation judge that the defendant committed the criminal act does not control the outcome of the guilt-determination process at trial. A defendant who has been found to be in violation of probation because of commission of a subsequent criminal act is nevertheless entitled to a trial in which he is presumed innocent of the charges. There is no application of the doctrine of collateral estoppel in such a situation because the defendant enjoys the presumption of innocence at trial. We conclude that collateral estoppel should also not apply when the outcome of a pre-trial revocation proceeding is adverse to the Commonwealth and favorable to the defendant. The right (or even duty) of the Commonwealth to conduct a pre-trial revocation hearing, as recognized in Kates, Burrell, and Brown, would be severely constrained if the exercise of the right were subject to possible forfeiture of the ability to prosecute defendant at trial. The defendant may not avoid the guilt-determination process attendant to a trial through the expedient of a non-revocation of probation.

Violation of probation hearings are frequently held without the benefit of preparation that precedes a criminal trial. Rather, these hearings are properly conducted in a more informal -manner than a trial, see Kates, in the interest of determining whether probation has proven an effective vehicle to accomplish rehabilitation. It is neither their purpose nor function to serve as a final arbiter of an individual’s guilt or innocence of criminal charges. It is only through a criminal trial at which the defendant is presumed innocent and the Commonwealth bears the burden of proof of guilt beyond a reasonable doubt that contested issues of criminal culpability are determined with finality. To cede this responsibility to a setting that does not adhere to the procedural safeguards necessary for a fair adjudication of guilt, such as a probation revocation hearing, would result in a perversion of the criminal justice system.

As noted above, other state and federal courts that have addressed the issue have reached differing results. We conclude that the reasoning employed in People v. Fagan, 104 A.D.2d 252, 483 N.Y.S.2d 489 (App.Div.4th Dept.1984), aff'd., 66 N.Y.2d 481, 498 N.Y.S.2d 335, 489 N.E.2d 222 (1985), and Lucido v. Superior Court, 51 Cal.3d 335, 272 Cal.Rptr. 767, 795 P.2d 1223 (1990) is the most persuasive and that permitting a criminal prosecution to follow a revocation proceeding that resulted in an outcome adverse to the Commonwealth is founded upon sound public policy. The California Supreme Court in Lucido stated that to apply collateral estoppel under the circumstances presented in this case would “undesirably alter the criminal trial process by permitting informal revocation determination to displace the intended factfinding function of the trial— Preemption of trial of a new charge by a revocation decision designed to perform a wholly independent social and legal task would undermine the function of the criminal trial process as the intended forum for ultimate determinations as to guilt or innocence of newly alleged crimes.” Lucido, 795 P.2d at 1229, 1230.

We hold that in order to ensure that the function of a criminal trial is not usurped by that of the probation revocation hearing, the Commonwealth may prosecute an individual on criminal charges even where a court has previously determined that it will not revoke the individual’s probation based upon those charges. The decision rendered at a probation revocation hearing may not bind a subsequent factfinder at a criminal trial whose primary function is to determine the presence or absence of proof of guilt beyond a reasonable doubt.

Order affirmed.

      . The certification for immediate appeal was granted because the order denying the motion to dismiss involved a controlling question of law as to whether there is a substantial ground for difference of opinion and the immediate appeal may materially advance the ultimate determination of the matter. Order, October 6, 1992. See 42 Pa.C.S. § 702(b).

      . The Motion to Disqualify was denied and that is not at issue in this appeal. Neither is the decision on the Motion for Bail at issue on appeal.

      . Subsequent trial prohibited: State v. Bradley, 51 Or.App. 569, 626 P.2d 403 (1981); People v. Rondo, 51 Ill.App.3d 874, 9 Ill.Dec. 479, 366 N.E.2d 990 (5th Dist.1977); State v. Chase, 588 A.2d 120 (R.I.1991); Ex , Parte Tarver, 725 S.W.2d 195 (Tex.Crim.App.1986). (Both Rhode Island and Texas law provide that a prior acquittal does not preclude a subsequent probation revocation hearing.)
      Subsequent trial permitted: United States v. Miller, 797 F.2d 336 (6th Cir.1986); Green v. State, 463 So.2d 1139 (Fla.1985); Teague v. State, 169 Ga.App. 285, 312 S.E.2d 818 (1983); People v. Fagan, 104 A.D.2d 252, 483 N.Y.S.2d 489 (App.Div. 4th Dept. 1984) affd., 66 N.Y.2d 481, 498 N.Y.S.2d 335, 489 N.E.2d 222 (1985); State v. Williams, 131 Ariz. 211, 639 P.2d 1036 (1982); State v. Dupard, 93 Wash.2d 268, 609 P.2d 961 (1980); Lucido v. Superior Court, 51 Cal.3d 335, 272 Cal.Rptr. 767, 795 P.2d 1223 (1990).


author: OLSZEWSKI, Judge.

text:
    629 A.2d 1012
    COMMONWEALTH of Pennsylvania v. Mark Francis McKIEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 6, 1993.
    Filed Aug. 13, 1993.

      Dianne M. Dickson, Allentown, for appellant.
    Gary F. Dobias, Dist. Atty., Jim Thorne, for Com., appellee.

      Before CIRILLO, OLSZEWSKI and BROSKY, JJ.
   OLSZEWSKI, Judge.

Mark Francis McKiel appeals from the judgment of sentence entered against him on December 28, 1992. After pleading guilty to one count of burglary, McKiel was sentenced to a term of imprisonment of 48-to-96 months. McKiel was also ordered to pay restitution in an amount to be determined by the probation department. McKiel’s request for reconsideration of sentence was denied. We affirm in part and vacate in part.

McKiel’s first claim on appeal is that the sentencing court erred by ordering restitution without considering his ability to pay restitution. See Commonwealth v. Galloway, 302 Pa.Super. 145, 161, 448 A.2d 568, 577 (1982) (trial court “must determine the damage the defendant has caused, what amount of restitution he can afford to pay and how he should pay it”). Although McKiel’s request for reconsideration of the imposition of restitution was denied, the sentencing court now concedes that this was error. Trial court opinion at 1. Accordingly, we remand for resentencing on the issue of restitution.

In his second argument, McKiel claims that the sentencing court failed to properly weigh the factors to be considered at sentencing by placing too much emphasis on the impact of the offense on the victim, with little or no consideration to his rehabilitative needs. Specifically, he argues that the court did not adequately consider the fact that he was gainfully employed, was pursuing an education, had cooperated with police in the recovery of the items stolen, and had made substantial efforts at rehabilitation. In light of these circumstances, he claims that his sentence was manifestly excessive. Because McKiel’s claim falls within the sentencing court’s discretion, we must initially determine if he has complied with the rules governing the right to appeal from the discretionary aspects of a sentence. The right to such an appeal is not absolute and such a challenge is considered to be a petition for permission to appeal. Commonwealth v. Ennis, 394 Pa.Super. 1, 574 A.2d 1116 (1990).

Before we may address the merits of an issue raised on appeal, appellant must demonstrate that a substantial question exists as to whether the sentence imposed is appropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Mobley, 399 Pa.Super. 108, 581 A.2d 949 (1990). Appellant must advance a colorable argument that the trial judge’s actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process. Commonwealth v. Losch, 369 Pa.Super. 192, 200, 535 A.2d 115, 119 (1987). After examining McKiel’s claim, we conclude that he has failed to meet this initial burden.

First, since McKiel’s sentence falls within the statutory guidelines and limits established for the crime committed, his claim that the sentence was excessive fails to raise a substantial question. Commonwealth v. Dungan, 372 Pa.Super. 323, 539 A.2d 817 (1988). Second, McKiel contends that the sentencing court focused on the victim and failed to consider the particular circumstances of his case. An allegation that the sentencing court “failed to consider” or “did not adequately consider” various factors does not raise a substantial question that the sentence was inappropriate. Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc); Commonwealth v. Minott, 395 Pa.Super. 552, 554, 577 A.2d 928, 929 (1990). Such a challenge goes to the weight accorded to sentencing factors and will not be considered absent extraordinary circumstances. Commonwealth v. Osteem, 381 Pa.Super. 120, 552 A.2d 1124 (1988); Commonwealth v. Devers, 519 Pa. 88, 100, 546 A.2d 12, 18 (1988). Accordingly, we do not find that a substantial issue exists regarding the discretionary aspects of the sentence imposed by the trial court and need not entertain McKiel’s appeal. Williams, supra.

Assuming, arguendo, that McKiel’s contentions present an appealable issue, we still find them to be without merit. Sentencing matters are vested in the sound discretion of the sentencing judge. A sentence will not be disturbed on appeal absent a manifest abuse of discretion:

To be a manifest abuse of discretion, a sentence must either exceed the statutory limits or be manifestly excessive. The discretion of a sentencing judge must be accorded great weight because he is in the best position to weigh such factors as the nature of the crime, the defendant’s character, and the defendant’s displays of remorse, defiance, or indifference.

Minott, at 554, 577 A.2d at 929 (citations omitted).

We find no such abuse of discretion in this case. The sentencing judge had the benefit of a pre-sentence investigation report. A pre-sentence report which is prepared for the court prior to sentencing provides sufficient background information upon which the sentence may be based. Mobley, at 114, 581 A.2d at 952. Our Supreme Court has held that where a pre-sentence report exists, we shall “presume that the sentencing judge was aware of the relevant information regarding the defendant’s character and weighed those considerations along with the mitigating statutory factors.” Devers, at 101-102, 546 A.2d at 18. Moreover, “[a] pre-sentence report constitutes the record and speaks for itself---- Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed.” Id. Additionally, a review of the record reveals that the sentencing court set forth detailed reasons for the imposition of sentence and carefully considered the particular circumstances of McKiel’s case. See N.T. 12/28/92 at 62-67. We therefore find that McKiel did not receive a manifestly excessive punishment.

Judgment of sentence is therefore vacated in part and affirmed in part. Case remanded for resentencing on the issue of restitution. Jurisdiction relinquished.

BROSKY, J., concurs in the result.

      . McKiel's prior record score was six and the offense gravity score for burglary was six. His sentence of 48-to-96 months was therefore in the standard range of the Sentencing Guidelines.

      . We note that the sentencing court considered imposing a sentence in the aggravated range on the basis that McKiel is a threat to society since he was on probation at the time the offense was committed, had several prior convictions, and committed the offense with the expertise of a career criminal. N.T. 12/28/92 at 66.


text:
    629 A.2d 1014
    COMMONWEALTH of Pennsylvania v. William MARIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 6, 1993.
    Filed Aug. 13, 1993.

      William Maris, appellant, pro se.

      Robert L. Steinberg, Dist. Atty., Allentown, for Com., appellee.
    Before CIRILLO, OLSZEWSKI and BROSKY, JJ.
   OLSZEWSKI, Judge.

William Maris appeals from a judgment of sentence entered March 31,1992. The trial court denied Maris’ motion for post-conviction relief holding that there were no issues concerning any material fact, Maris was not entitled to post-conviction relief, and no purpose would be served by any further proceedings. We quash Maris’ appeal because his brief violates the Pennsylvania Rules of Appellate Procedure to a degree that precludes us from conducting meaningful review of his claims. Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982).

On January 30, 1992, Maris pled guilty to two counts of conspiracy to commit burglary. He was sentenced to 45 months to 20 years of imprisonment. On April 14,1992, Maris filed a motion for reconsideration of sentence, which was granted, and his sentence was amended to a maximum of 10 years. On July 17, 1992, Maris, represented by Charles Seiger, filed a motion for post-conviction relief alleging the following: 1) trial counsel rendered ineffective assistance; 2) his guilty plea was illegally induced by counsel; 3) two counts of burglary under one case number is illegal; 4) the fact that he had turned himself in was not presented to the court; 5) a district attorney’s remarks unfairly prejudiced the judge against him; 6) his sentence was unduly harsh in relation to that of his co-defendant’s; and 7) his property was illegally searched. At the August 4, 1992, hearing on this post-conviction petition, Maris, after consulting with his counsel, determined that his motion was meritless and withdrew it.

Maris then filed a second motion for post-conviction relief, raising the same claims. On December 23, 1992, the trial court filed notice of its intention to dismiss Maris’ motion. Maris filed a written objection to the notice. After considering Maris’ objection, the trial court dismissed his motion.

Maris then filed a pro se appeal from the order dismissing his motion and was granted permission to proceed in forma pauperis. The trial court issued its opinion affirming dismissal of Maris’ motion on April 19, 1993. Maris and the Commonwealth then submitted briefs to this Court.

Rule 2111 of the Pennsylvania Rules of Appellate Procedure, captioned “Content of Briefs,” directs in mandatory (“shall”) language the required format and content of an appellant’s brief. It provides:

(а) General Rule. The brief of the appellant, except as otherwise prescribed by these rules, shall consist of the following matters, separately and distinctly entitled and in the following order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of the questions involved.
(4) Statement of the case.
(5) Summary of argument.
(б) Argument for appellant.
(7) A short conclusion stating the precise relief sought____

Pa.R.A.P., Rule 2111, 42 Pa.C.S.A. (emphasis added).

Maris’ brief blatantly violates this rule because it contains no statement of jurisdiction, order, or other determination in question, summary of argument or statement of the questions involved. This last omission is particularly grievous since the statement of questions involved defines the specific issues this Court is asked to review. The rule requiring a statement of questions involved “is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.” Pa. R.A.P., Rule 2116(a), 42 Pa.C.S.A. We, therefore, are not obliged to consider any of Maris’ arguments since none are set forth in a statement of questions involved. See Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984) (when Superior Court decides issues on appeal, it ordinarily restricts itself to the statement of questions involved for purposes of determining the issues to be decided); see also Commonwealth v. Duden, 326 Pa.Super. 73, 473 A.2d 614 (1984) (claims of ineffective assistance of counsel waived where they are tacked on other claims without being included in statement of questions presented); Commonwealth v. Leib, 403 Pa.Super. 223, 588 A.2d 922 (1991), alloc. denied 528 Pa. 642, 600 A.2d 194 (1991) (defendant failed to preserve issue for review where issue was not set forth in statement of questions involved or suggested thereby); Commonwealth v. Cauto. 369 Pa.Super. 381, 535 A.2d 602 (1987), alloc. denied 521 Pa. 601, 555 A.2d 112 (1987) [denial of habeas corpus affirmed Cauto v. Mazurkiewicz, 937 F.2d 596 (1991) ] (issue of whether trial counsel was ineffective for failing to object to particular closing argument was not properly before court because issue was not included in statement of questions presented).

Maris’ brief also inadequately sets forth the statement of the case. The brief contains no section entitled “Statement of the Case,” as required by Rule of Appellate Procedure 2111, but only attempts to provide some minimal information regarding the procedural and factual history of the case. The “Factual History of the Case” is set forth simply as “[p]etitioner/Appellant, William Maris, was charged with Burglary, Theft and Criminal Conspiracy by Lehigh County Authorities.” Appellant’s brief at iii. This sentence, to say the least, insufficiently fulfills the requirement of “[a] closely condensed chronological statement, in narrative form, of all the facts which are necessary to be known in order to determine the points in controversy, with an appropriate reference in each instance to the place in the record where the evidence substantiating the fact relied on may be found.” Pa.R.A.P., Rule 2117(a)(4), 42 Pa.C.S.A. Moreover, Maris’ “Procedural History of the Case,” in addition to repeating the “Factual History of the Case,” contains argument in violation of Rule 2117(b) which states, “[t]he statement of the case shall not contain any argument. It is the responsibility of appellant to present in the statement of the case a balanced presentation of the history of the proceedings and the respective contentions of the parties.” Pa.R.A.P., Rule 2117(b), 42 Pa.C.S.A.

Furthermore, in what we can only assume to be Maris’ “Argument for Appellant” section, improperly labeled in the brief as “Reasons for Granting This Petition,” there is nothing resembling an argument “divided into as many parts as there are questions” with “distinctively displayed” headings above each “particular point treated therein.” Pa.R.A.P., Rule 2119, 42 Pa.C.S.A. Instead, Maris sets forth several disjointed paragraphs alleging ineffectiveness of counsel, but failing to support his assertions with factual evidence contained in the record. Moreover, Maris’ legal arguments are not properly developed, but are filled with unsupported statements and largely inapplicable caselaw. See Commonwealth v. Rodgers, 413 Pa.Super. 498, 605 A.2d 1228 (1992) (argument section of appellant’s brief must include pertinent discussion of particular point raised along with citation to pertinent authorities); see also Commonwealth v. Miguel, 409 Pa.Super. 429, 598 A.2d 71 (1991) alloc. denied 529 Pa. 668, 605 A.2d 333 (1992) (allegations of ineffectiveness of counsel must be stated with specificity and abstract allegations stated in a vacuum are frowned upon and will not support claim).

“This Court possesses discretionary authority to quash, dismiss or deny allowance of appeal based upon the substantial defects of appellant’s brief. Pa.R.A.P. 2101.” Commonwealth v. Ely, 381 Pa.Super. 510, 513, 554 A.2d 118, 119 (1989). The substantial defects in Maris’ brief prevent us from conducting meaningful judicial review. “We decline to become appellant’s counsel. When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review a Court will not consider the merits thereof.” Sanford, supra, 299 Pa.Super. at 67, 445 A.2d at 150. Accordingly, we decide that Maris’ brief should be suppressed and his appeal quashed.

The appeal is quashed.

      . We are not insensitive to the fact that Maris is a pro se appellant. In his brief, Maris states that he "has a limited education and no knowledge of the law.” Appellant's brief at 3. This Court "is willing to liberally construe materials filed by a pro se appellant”; however, Maris is not entitled to special treatment by virtue of the fact that he "lacks legal training.” O'Neill v. Checker Motors Corp., 389 Pa.Super. 430, 434, 567 A.2d 680, 682 (1989).


author: POPOVICH, Judge. CIRILLO, Judge,

text:
    629 A.2d 1017
    Mollie T. PETERSON, Appellee, v. Theodie L. PETERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 10, 1993.
    Filed Aug. 16, 1993.
    Judith A. Calkin, Harrisburg, for appellant.
    Michael L. Rozman, Harrisburg, for appellee.
    Before CIRILLO, POPOVICH and HESTER, JJ.
   POPOVICH, Judge.

We are asked to review the order of the Court of Common Pleas of Dauphin County directing the payment of alimony to the plaintiff/appellee, Mollie T. Peterson, by the defendantyappellant, Theodie L. Peterson. We affirm.

This case was appealed initially to this Court, which affirmed the order equitably distributing the marital assets, but reversed and remanded that portion of the order awarding alimony because “the trial court improperly included child support in determining ... the duration of the alimony award.” Peterson v. Peterson, (J. A48015/92, No. 00274 Harrisburg, 1991, filed January 31, 1992).

On remand, a hearing was conducted wherein the parties stipulated that the court could consider the previously recorded testimony before the Master Adler. Additional testimony was elicited as well from the plaintiff an,d the defendant to update their employment status: Defendant was still employed as an associate professor of law at Widner College earning $60,000 to $65,000 per year, whereas the plaintiff had secured new employment with the Social Administration earning the same salary as before, i.e., $21,000.

Further, each party discussed their liabilities and assets: Plaintiff stated that she was “3 to 400” dollars short each month in meeting her needs given her financial picture, N.T. 6. The defendant testified that he had “incurred substantial credit card obligation” — $14,000 to $15,000 — in support of himself and paying alimony since his separation. N.T. 24.

The trial court, after reviewing the entire record, considered a number of factors in deciding the duration and quantity of alimony, e.g., the relative earnings and earning capacities of the parties, educational levels of the parties, employment history, the ages and health of the litigants, the distribution of property, financial obligations and expenses of the primary custodian of the two children, the plaintiff.

In light of the aforementioned factors, the trial court engaged in a weighing process leading to an award of alimony to the plaintiff amounting to $50 per week for a period of ten years. This appeal followed and challenges the entry of the alimony on grounds that the plaintiff was gainfully employed and received a “substantial” distribution of property.

Before addressing the merits of the appellant’s complaints, we need to decide whether the claims are preserved for appellate review.

Pursuant to Pa.R.Civ.P. 1920.52(a), with regard to claims involving alimony, the practice and procedure following the trial court’s entry of a decision “shall be in accordance with Rules of Civil Procedure 227.1 to 227.4 inclusive.” In particular, Rule 227.1(b)(1) & (2) requires that the grounds for post-trial relief must have been raised at trial and may not be proffered for the first time in post-trial motions. No post-trial motions were filed at bar by the appellant, and the Rules of Civil Procedure create no exceptions to the mandate of filing such a motion to preserve any issue(s) for appellate review. Id.

We have found no case law, nor has counsel for the appellant cited any to us, which excepts the appellant from filing post-trial motions on a remand from Superior Court presided over by a jurist. In the absence of any such authority, we find the issues raised by the appellant to be waived. Colagioia v. Colagioia, 362 Pa.Super. 213, 523 A.2d 1158 (1987).

Order affirmed.

CIRILLO, J., files a concurring opinion.

CIRILLO, Judge,

concurring:

I agree with the majority that the trial court’s order directing alimony payment to appellee (Wife) must be affirmed, as the issues raised by appellant (Husband) have been waived. I write separately, however, to address the need for a more clearly defined formulation of the propriety and duration of “alimony” as it exists under the Divorce Code today. Let this be a call to the legislature to refine these definitions, for the application of such vague guidelines and goals as they now exist leads to an unacceptable disparity in the distribution of alimony awards. As a result, there is little consistency in the interpretation and application of the law pertaining to alimony.

The alimony award in the instant case amounts to fifty dollars per week for a period of ten years. Procedural irregularities aside, what would restrict a judge from awarding the same amount for a span of twenty years? Thirty years? Life? Under prior Pennsylvania divorce law, subsection 501(c) of the 1980 Divorce Code distinctly set forth the legislative intention that alimony be awarded only for a limited time period sufficient to allow the dependent spouse to develop an employable skill or obtain employment. 23 Pa.C.S. § 501(c). In other words, alimony was to be awarded strictly for rehabilitative purposes.

In 1988, however, the legislature eliminated from the Divorce Code the requirement that alimony be solely rehabilitative in nature. A court may now order alimony, “as it deems reasonable, to either party only if it finds that alimony is necessary.” 23 Pa.C.S.A. § 3701(a). “Necessity is the only requirement in determining the propriety of an alimony award and that necessity is judged by numerous considerations only some of which have to do with the rehabilitation of the recipient spouse.” Zullo v. Zullo, 395 Pa.Super. 113, 122 n. 3, 576 A.2d 1070, 1074 n. 3 (1990), aff'd, 531 Pa. 377, 613 A.2d 544 (1992). Significantly, the guideline for determining the duration of an alimony award now reads, “[t]he court in ordering alimony shall determine the duration of the order, which may be for a definite or indefinite period of time which is reasonable under the circumstances.” 23 Pa.C.S.A. § 3701(c). This definition clearly “eliminat[es] any legislative mandate to link the term of alimony to such time as the recipient becomes gainfully employed.” Zullo, 395 Pa.Super. at 122 n. 3, 576 A.2d at 1074 n. 3.

In determining whether alimony is necessary, and in deciding the nature, amount, duration and manner of payment of alimony, section 3701(b) of the Divorce Code provides courts with a list of relevant factors to consider in formulating an alimony award. The rehabilitative aspect of the former Code has become just one factor to consider in determining alimony. What, then, are the goals of the alimony provisions after the 1988 amendments? While it appears that Pennsylvania is now moving toward a “permanent alimony” state, it is possible to interpret the amended alimony provisions as embodying conflicting policies. For instance, the legislature, in defining “duration” of alimony to include a “definite or indefinite period of time” has allowed for an extremely wide range of possibilities, even considering the section 3701(b) factors that must be taken into account. The inevitable result is a lack of uniformity among alimony awards. In determining the duration of an alimony award it is possible, for example, for one judge to afford substantial weight to the factor involving the time necessary to acquire sufficient education or training to obtain employment (ie. time necessary to rehabilitate), while a different judge might focus on the standard of living of the parties during marriage and award alimony for an indefinite period of time. Thus, while the statute in question is no longer solely for purposes of rehabilitation, one could still utilize it to obtain such a result. It could also be interpreted to provide permanent alimony to equalize the income of parties whose earning capacities differ substantially.

In short, the list of factors to be considered by a judge in awarding alimony offers limited guidance for deciding when alimony is appropriate and for how long. As Pennsylvania divorce law stands now, the decision to award alimony is determined by a particular judge’s notion of what is necessary and fair; there exists a danger that each judge is unrestrained in his or her discretion. The legislature has set forth, in general terms, that it is the policy of the Divorce Code to “[e]ffectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability to pay of the parties and insure a fair and just determination and settlement of their property rights.” 23 Pa.C.S.A. § 3102(a)(6). While this is clearly the overriding goal of the Code, it is still sufficiently vague for purposes of alimony, especially when weighed with the enumerated factors in section 3701(b). It would be in the Commonwealth’s best interest to return to a specific expression of intent regarding alimony. When rehabilitation was the clear goal, judges were guided by the idea that alimony was awarded according to what it would take for the dependent spouse to become economically self-sufficient. The prior divorce law clearly promoted economic independence. As a result, alimony awards from county to county across the Commonwealth were structured with this goal in mind. Arguably, this better served the overriding policy of effectuating “economic justice.” 23 Pa.C.S.A. § 3102(a)(6).

Pennsylvania needs a definitive statement regarding alimony. The legislature, by leaving “duration” and “need” virtually open-ended in the context of alimony, has provided little in terms of guidelines and goals, both of which are needed if our courts are to promote economic justice between parties. 23 Pa.C.S.A. § 3102(a)(6).

      . The defendant owns a 1983 Mercedes and 1985 Cadillac, whereas the plaintiff drives a 1985 Dodge Caravan.

      . The Plaintiff received 55% of the marital property while the defendant was the recipient of 45% of the marital estate.

      . The court shall address the following factors: (1) relative earning capacities of the parties, (2) ages, physical, mental and emotional conditions of the parties, (3) sources of income of both parties, (4) expectancies and inheritances of the parties, (5) duration of the marriage, (6) contribution by one party to the education, training or increased earning power of the other party, (7) extent to which earning power, expenses or financial obligations of a party will be affected by reason of serving as the custodian of a minor child, (8) standard of living of the parties established during marriage, (9) relative education of parties and time necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment, (10) relative assets and liabilities of the parties, (11) property brought into the marriage by either party, (12) contribution of a spouse as homemaker, (13) relative needs of parties, (14) marital misconduct of either party during marriage, (15) tax ramifications (federal, state and local) of the alimony award, (16) whether the party seeking alimony lacks sufficient property to provide for party's reasonable needs, and (17) whether the party seeking alimony is capable of self support through appropriate employment.
      23 Pa.C.S.A. § 3701(b).

      . In formulating the policy behind alimony in Pennsylvania, the legislature must make clear its intentions regarding rehabilitative and permanent alimony. For example, rehabilitative alimony can be a useful tool in promoting economic independence and personal self-reliance. On the other hand, it can be a heavy burden on spouses who have chosen to assume the more traditional role of homemaker, thus making permanent alimony a more attractive alternative. See David H. Relsey & Patrick P. Fry, The Relationship Between Permanent and Rehabilitative Alimony, 4 J.Am.Acad.Matrim.Law 1 (1988).


author: POPOVICH, Judge. BECK, Judge,

text:
    629 A.2d 1020
    COMMONWEALTH of Pennsylvania, Appellee, v. Calvin MURPHY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 13, 1993.
    Filed Aug. 17, 1993.

      Daniel Silverman, Philadelphia, for appellant
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before BECK, POPOVICH and HESTER, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County, following appellant’s conviction on charges of possession of a controlled substance with intent to deliver, possession of a controlled substance and possession of drug paraphernalia. Herein, appellant contends his prior attorneys were ineffective for failing to raise and preserve for appeal the issue of whether the search warrants were facially defective because they did not contain any information from which the issuing authority could reasonably construe that contraband was present at the subject locations proximate in time to the application for the warrants, and, thus, the warrants were “stale” in violation of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. We disagree with appellant’s assertion that the warrants were “stale”, and, accordingly, we affirm.

When reviewing an attack on counsel’s stewardship, we are guided by the standard which was set forth in Commonwealth v. Graham, 522 Pa. 115, 118, 560 A.2d 129, 130 (1989) as follows: “The ineffectiveness of counsel is shown where there is merit to the underlying claim, the course chose by counsel does not have a reasonable basis, and the defendant shows prejudice.” See also, Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989). Thus, we will first review the merits of appellant’s assertion that the search warrants were impermissibly “stale” in violation of the Federal and Pennsylvania Constitutions, i.e., the warrants failed to establish probable cause for their issuance.

In determining whether probable cause for issuance of a warrant is present, Pennsylvania has adopted the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See, Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The task of the issuing authority is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Commonwealth v. Melilli, 521 Pa. 405, 419-21, 555 A.2d 1254, 1262 (1989); Commonwealth v. Karns, 389 Pa.Super. 58, 566 A.2d 615 (1989), allocatur denied, 525 Pa. 632, 578 A.2d 927 (1990); Commonwealth v. Haggerty, 388 Pa.Super. 67, 564 A.2d 1269 (1989), allocatur denied, 525 Pa. 577, 575 A.2d 109 (1990). A search warrant is defective if the issuing authority is not supplied with a time frame upon which to ascertain when the affiant obtained the information from the informant and when the informant himself witnessed the criminal acts detailed in the affidavit of probable cause. Haggerty, 564 A.2d at 1271, citing, Commonwealth v. Kalinowski, 303 Pa.Super. 354, 449 A.2d 725 (1982), citing, Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973); Kams, 566 A.2d at 617.

Our Supreme Court, in Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802, 804 (1986), stated:

An issuing authority presented with the sworn testimony of an affiant may, absent obvious chronological inconsistencies, rely that the affiant is speaking of the present or the immediate past. “Staleness” when raised must not be determined by rigorous exactitude, but rather by the experience of reasonable men, cognizant that events in the real world, and more specifically criminal events, have a life of their own, in which hours and days are measured not by clocks and calendars, but rather by who will be watching, and when the coast will be clear.
Many police informants, particularly in drug related offenses, themselves often victims, are hard-pressed to know night from morning, and live a permanent dateless time. In such cases the issuing authority should try as close as possible to establish dates. However, where not possible, magistrates should use the experience of reasonable men under the circumstances to prevent offenders, loaded with poisonous contraband, from walking free because the evidence was “stale.” ... Common sense can determine what is a reasonable age under the circumstances.

Instantly, the affidavits of probable cause for both search warrants were identical and read as follows:

Police received information from an informant who has provided reliable information in the past that has led to the seizure of drugs, weapons, and paraphernalia, also USC. On 11/11/88 The informant provided information leading to the seizure of 38 packets of cocaine and $180.00 in USC DC # 88-12-82395.
On 11/14/88 The informant provided information leading to the seizure of 53 packets of cocaine and $200.00 USC DC # 88-18-87450.
On 11/19/88 The informant provided information leading to the seizure of 219 packets of cocaine and a 1 ounce bag of uncut cocaine and $4,095.00 and weapons.
On 12/17/88 The informant provided information leading to the seizure of 1,683 packets of cocaine in vials and 219 packets of cocaine heat sealed.
Today 1/3/89 The informant provided information that a B/M named Calvin Murphy approx. 25 yrs. and drives a gray Volvo is Bagging and Storing drugs and the money which is made through the sales at 6063 Kingsessing.
The informant states that although the drugs are being stored and bagged here that are distributed and sold at 5224 Chancellor. The information states that he knows this because he has on at least 3 occasions left from the Chancellor Street address and accompanied Calvin Murphy to the Kingsessing address to get more drugs. The informant states that both the Volvo and a blue Eldorado that sometimes drives is registered to his mother. (BMV revealed that this to be true) A voter registration check shows that a Calvin Murphy is in fact registered to vote there. (6063 Kingsessing Ave) A BMV check reveals that a Calvin Murphy DOB 2/15/63 has an operators license for both addresses.
Based on the informant’s past reliability and other corroborating documents I respectfully as that this warrant be approved.

Appellant argues that the warrants lack probable cause because the affidavits set forth “absolutely no information” from which the issuing authority could conclude that drugs and other contraband were present at either location at the time the police applied for the warrants. More specifically, appellant' complains that the affiant never established when the alleged prior criminal activity took place and whether there was reason to believe the criminal activity was on-going at the time application for the warrant was made. Absent the crucial time element, appellant argues that the warrants should have been suppressed.

While we agree with appellant’s statement of the law in that the warrants must set forth the time frame upon which the magistrate can ascertain whether there is a “fair probability that contraband or evidence of a crime will be found in a particular place,” Melilli, 555 A.2d at 1261, we nevertheless find that information as to the freshness of the information concerning appellant’s drug-related activities was available for the magistrate’s use in issuing the warrants. Assessing the affidavit with practical, common sense approach, see Baker, supra, we find the only inference that can be drawn is that appellant’s drug-related activity was on-going and currently in progress. From the four corners of the affidavit, it is fair to assume that on January 3, 1989, Officer Carpenter (the affiant) received information from a reliable informant that appellant was currently processing drugs and storing drugs and the proceeds from drug sales at 6063 Kingsessing Avenue. The informant also indicated that appellant distributed and sold the drugs from 5224 Chancellor Street. The informant knew of the two locations and appellant’s drug operation because he had, in the recent past, on at least three occasions, accompanied appellant to the Kingsessing address to obtain additional drugs to be sold at the Chancellor address.

A fair reading of the affidavits leads to the conclusion that the informant reported what he had just seen in the “immediate past”. Any other interpretation would require we ignore the common sense approach adopted in Gray, supra, and return to the hypertechnical standard required under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Our conclusion today is supported by our decision in Haggerty, supra, where we were faced with a similar affidavit of probable cause. Therein, Haggerty argued that the affidavit did not set forth with specificity a time frame upon which to ascertain when the informant obtained his knowledge of Haggerty’s alleged drug-related activities. Consequently, Haggerty argued that the warrant lacked probable cause because it failed to supply the magistrate with information indicating that evidence of criminal activity would currently be found at his residence. Haggerty, 564 A.2d at 1269. Despite the lack of information concerning when the informant witnessed Haggerty’s possession of a large quantity of cocaine, the affiant’s use of the present tense in the affidavit led the. lower court and this court to conclude that Haggerty’s drug activity was currently in progress. Haggerty, 564 A.2d at 1269. See also Rivera v. United States, 928 F.2d 592, 602-603 (2d Cir.1991) (magistrate properly inferred that informant gave information of police shortly after making his observations, despite absence of time information from affidavit).

As in Haggerty, supra, we are now presented with affidavits of probable cause from which we can infer that the appellant’s drug activity was in progress at the time the Commonwealth applied for the warrants. Accordingly, we find that the warrants did possess the requisite probable cause, and, therefore, prior counsel cannot be found ineffective for failing to raise a meritless claim. Graham, supra.

Judgment of sentence affirmed.

BECK, J., files a dissenting statement.

BECK, Judge,

dissenting.

Because I cannot agree that the “only inference that can be drawn is that appellant’s drug-related activity was on-going and currently in progress,” I must dissent. The affiant’s use of the present tense in describing the activities of appellant is not enough to satisfy the requirement that an issuing authority must be supplied with the time frame within which an informant witnessed the criminal acts contained in the affidavit. See Commonwealth v. Haggerty, 388 Pa.Super. 67, 564 A.2d 1269, 1273-74 (1989) (Cavanaugh, J. dissenting).

The affidavit states that “the information [sic] states that he knows this because he has on at least 3 occasions left from the Chancellor Street address and accompanied Calvin Murphy to the Kingsessing address to get more drugs.” In my opinion this statement raises uncertainty as to the time frame in which appellant witnessed the criminal activity. It also distinguishes these facts from those in Haggerty. Was the informant’s last visit made on the day police received the information? Were all three visits made within a time reasonably close to the date police received the information? The affidavit sheds no light on our inquiry yet the majority assumes that the visits occurred in “the recent past.” Maj. Op. at 1023.

The affidavit as written lends itself to varying interpretations of when the informant made his or her observations. The affidavit, then, “does not contain facts from which the date of the [informant’s] observations could be determined.” Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 891 (1991). Based on this uncertainty, I would find that the warrant was invalid.

      . We note that counsel for appellant failed to discuss Haggerty, supra, which is directly on point. Further, we note that counsel's reliance on Commonwealth v. Tolbert, 492 Pa. 576, 424 A.2d 1342 (1981), and Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973), is misplaced as these cases were decided under the hypertechnical standard set forth in Aguilar, supra, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).