author: JOHNSON, Judge:

text:
    566 A.2d 619
    COMMONWEALTH of Pennsylvania, Appellant, v. Timothy BROWN.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1989.
    Filed Nov. 22, 1989.

      Deborah Fleisher, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Jeffrey P. Shander, Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

The Commonwealth appeals the Order placing Timothy Brown on probation. In this case we find that a defendant is not eligible for probation pursuant to 35 P.S. § 780-117 (section 17) and must be sentenced in compliance with the mandatory minimum sentencing provisions of 18 Pa.C.S. § 7508 (section 7508) where the defendant has committed a crime under 35 P.S. §§ 780-113(a)(14, 30) involving the type and quantities of substances set forth in section 7508. Accordingly, we vacate the judgment of sentence and remand for resentencing consistent with the mandatory minimum sentencing requirements.

On October 11, 1988, a Philadelphia police officer observed Brown make two drug sales. Thereafter, Brown was arrested and charged with Knowingly or Intentionally Possessing a Controlled Substance, and with the Manufacture, Delivery or Possession with Intent to Manufacture or Deliver a Controlled Substance. On November 1, 1988, the Commonwealth gave notice to the court that it intended to proceed under the mandatory minimum sentencing requirements set forth in section 7508. On February 10, 1989, defendant entered a plea of nolo contendere to manufacture, delivery or possession with intent to manufacture or deliver in excess of two grams of cocaine. In addition, Brown demonstrated to the satisfaction of the court that he had a drug dependency. The court accepted Brown’s plea and placed him on a conditional three years’ probation pursuant to section 17. The minimum sentencing term of one year imprisonment and the fine of $5,000.00 mandated by section 7508 were not imposed.

The Commonwealth filed a Petition to Reconsider Section § 17 which was denied. The Commonwealth then appealed the order of probation pursuant to section 7508(d), which provides for appellate review of any sentence not in compliance with section 7508.

On appeal, the Commonwealth raises the following question: where the defendant pleads nolo contendere to violating 35 P.S. § 780-113(a)(30) of the Controlled Substance, Drug, Devise and Cosmetic Act, may the trial court circumvent the mandatory minimum sentencing provisions of section 7508 by sentencing the defendant to probation under section 17. This is an issue of statutory interpretation.

The section under which Brown was placed on probation, section 17, provides:

A person may be entitled to probation without verdict under the following circumstances:
(1) A person who has not previously been convicted of an offense under this act or under a similar act of the United States, or any other state, is eligible for probation without verdict if he pleads nolo contendere or guilty to, or is found guilty of, any nonviolent offense under this act. The court may, without entering a judgment, and with the consent of such person, defer further proceedings and place him on probation for a specific time period not to exceed the maximum for the offense upon such reasonable terms and conditions as it may require.
Probation without verdict shall not be available to any person who is charged with violating clause (30) of subsection (a) of section 13 of this act and who is not himself a drug abuser and who does not prove the fact of such drug abuse to the satisfaction of the court.
(2) Upon violation of a term or condition of probation, the court may enter a judgment and proceed as in any criminal case, or may continue the probation without verdict.
(3) Upon fulfillment of the terms and conditions of probation, the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal shall be without adjudication of guilt and shall not constitute a conviction for any purpose whatever, including the penalties imposed for second or subsequent convictions: Provided, That probation without verdict shall be available to any person only once: And further provided, That notwithstanding any other provision of this act, the prosecuting attorney or the court, and the council, shall keep a list of those persons placed on probation without verdict, which list may only be used determine the eligibility of persons for probation without verdict and the names on such lists may be used for no other purpose whatsoever.

Act of April 14, P.L. 233, No. 64 § 17, eff. June 14, 1972; [emphasis added]. The mandatory minimum sentencing provision, section 7508, provides:

(a) General rule. — Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
(3) A person who is convicted of violating section 13(a)(14) or (30) of the The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation of coca leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecgonine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment ánd a fine as set forth in this subsection:
(i) upon the first conviction when the amount of the substance involved is. at least 2.0 grams and less than ten grams; one year in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity and, upon conviction for another offense subject to sentencing under this section; three years in prison and $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity;
(b) Proof of sentencing. — Provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence, and shall determine, by a preponderance of the evidence, if this section is applicable.
(c) Mandatory sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable a lesser sentence than provided for herein or to place the offender on probation, parole, work release or prerelease or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than provided herein. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided herein. Disposition under section 17 or 18 of The Controlled Substance, Drug, Device and Cosmetic Act shall not be available to a defendant to which this section applies.
(d) Appellate review. — If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.

Act of March 25, 1988, P.L. 262, No. 31 § 13, eff. July 1, 1988; [emphasis added].

The language of section 7508 evinces an unequivocal intent by the legislature that persons committing the drug offenses set forth under section 7508 be punished according to the minimum sentences set forth in that section. We pay particular attention to the language under the subsection entitled mandatory sentencing declaring that section 17 is inapplicable when the defendant comes within the purview of section 7508 and the prelude to section 7508 declaring that this section applies notwithstanding any other provision of this or any other act to the contrary.

Drawing from this language, both the trial court and Brown contend that the defendant does not come within the provisions of section 7508 unless he has been convicted and therefore, where the defendant has not been convicted, a section 17 disposition is still appropriate. The trial court and Brown’s arguments misapprehend the meaning of the words “to which the section applies.” Section 7508(c) must be read in light of the entire statute, particularly section 7508(b). The penalties set forth in section 7508 depend upon the type and amount of the substance involved. Therefore, section 7508(b) requires that the trial court find by a preponderance of the evidence that this section is applicable, meaning there must be a finding that the substance involved is of the type and quantity sought to be punished under the statute. Thus, where section 7508(c) uses the language “to which this section applies” it refers not to whether the offender has been convicted, but rather, to whether the offender has committed an offense involving the type and amounts of substance set forth under that section. Applying this interpretation, we conclude that section 7508 and section 17 are irreconcilable. Section 7508 removes from the trial court the discretion to place an offender on probation where the offender has committed the offenses set forth in section 7508.

The provisions of 1 Pa.C.S. § 1936 set forth the rule of construction where two statutes may not both be given effect:

Whenever the provisions of two or more statutes enacted finally by different General Assemblies are irreconcilable, the statute latest in date of final enactment shall prevail.

Section 17 was enacted April 14, 1972 whereas section 7508 was enacted almost sixteen years later on March 25, 1988. Accordingly, section 7508 as the later enacted statute overrides section 17 to the extent that the statutes overlap. Our determination that section 7508 overrides section 17 does not amount to an implied repeal of section 17. By its own terms, section 7508 will displace section 17 only where the defendant comes within section 7508: where the defendant has committed an offense under 35 P.S. §§ 780-113(a)(14, 30) involving the type and quantities of illicit substances set forth in section 7508. Persons committing drug offenses involving substances of a different type or of lesser quantities than those set forth in section 7508 do not come within this section and are not, by virtue of this section, denied a section 17 disposition.

For the foregoing reasons, we reverse the order of the trial court and remand for sentencing consistent with the minimum sentencing requirements.

Order vacated and case remanded. Jurisdiction relinquished.


source: Caselaw Access Project

author: CERCONE, Judge: CIRILLO, President Judge,

license: Public Domain

text:
    566 A.2d 622
    Gardenia GREEN, as parent and natural guardian of Lawrence Green, a minor and Gardenia Green, on her own behalf, v. K & K INSURANCE COMPANY, Travelers Insurance Company. Appeal of K & K INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Aug. 22, 1989.
    Filed Nov. 27, 1989.

      L. Rostaing Tharaud, Philadelphia, for appellant.
    Jeffrey M. Seiken, Feasterville, for Green appellees.
    Thomas Patrick Kelly, Philadelphia, for Travelers Ins., appellee.
    Before CIRILLO, President Judge, and KELLY and CERCONE, JJ.
   CERCONE, Judge:

Appellant, K & K Insurance Company, appeals from the summary judgment entered against it by the lower court. We affirm.

The underlying facts of this case, as determined by the lower court, are as follows. The minor plaintiff, Lawrence Green, was riding his bicycle on the sidewalk when he was allegedly struck by a motorcycle owned and operated by Alvin H. Butler. At the time of the accident, Mr. Butler was insured by appellant and the minor plaintiff did not reside in a household that owned an automobile and therefore did not have any insurance coverage.

Plaintiffs initiated this action stating a claim for medical expenses against either appellant as insurer of Mr. Butler’s motorcycle or against appellee, Travelers Insurance Company, as insurer of the Assigned Claims Plan. Appellant moved for judgment on the pleadings while Travelers moved for summary judgment. Appellant’s motion was denied while Travelers’ motion for summary judgment was granted. Appellant filed this timely appeal. The sole issue for our review is whether the lower court erred in interpreting the Motor Vehicle Financial Responsibility Law (hereinafter referred to as “MVFRL”) to require insurers of motorcycles to provide first party benefits to eligible but uninsured pedestrians injured in an accident. We affirm.

We note initially that when reviewing an entry of summary judgment, an appellate court may disturb the order of the trial court only where there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988). To uphold a summary judgment, there must not only be an absence of genuine factual issues, but also an entitlement to judgment as a matter of law. French v. United Parcel Service, 377 Pa.Super. 366, 547 A.2d 411 (1988). The trial court must examine the record in a light most favorable to the non-moving party and accept as true all well-pleaded facts in the non-moving party’s pleadings. Boyd v. Albert Einstein Medical Center, 377 Pa.Super. 609, 614, 547 A.2d 1229, 1231 (1988).

The facts in the instant case are not in dispute. The dispute between the parties involves whether or not the lower court correctly applied the facts to the law as set forth in the MVFRL. Appellant argues that since insurers of motorcycles are expressly exempted from insurance requirements of other registered motor vehicles under §§ 1711 and 1712 of the MVFRL, they are not required to provide first party benefits to the uninsured pedestrian injured in this accident. We disagree.

It is true that § 1711 of the MVFRL provides:

An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except ... motorcycles ... shall include coverage providing____

Pursuant to this section, insurers of motorcycles are not required to provide the first party benefits that insurers of other motor vehicles must provide. Similarly, § 1712 states:

An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except ... motorcycles ... shall make available for purchase first party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows: ....

Again, insurers of motorcycles are exempt from providing coverage. Specifically, they need not make available for purchase first party benefits pursuant to this section. Further, an operator or passenger of a motorcycle cannot recover first party benefits. 75 Pa.C.S.A. § 1714. Reading all of these provisions together, it is clear that the legislature intended to exclude operators and passengers of motorcycles from being able to recover first party benefits.

However, § 1713 of the MVFRL sets forth a priority system to determine the source of first party benefits as follows:

(a) General rule. — Except as provided in § 1714 (relating to ineligible claimants), a person who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first party benefits against applicable insurance coverage in the following order of priority:
(4) For a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involved in the accident____

Thus, the boy in the instant case, who suffered injury as a result of being hit by a motorcycle and was not a passenger of the motorcycle, must receive first party benefits from the policy on the motorcycle. We reach this conclusion because (1) the motorcycle was the only motor vehicle involved in the accident; (2) as stated above, the boy did not reside in a household that owned an automobile and therefore did not have any insurance coverage; and (3) the statutory language that excludes an insurer from being required to provide operators and passengers of motorcycles with first party benefits does not extend to third parties.

Our supreme court in Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975) analyzed a similar situation under the now repealed Pennsylvania No-Fault Motor Vehicle Insurance Act, (hereinafter referred to as the “No-Fault” Act) 40 P.S. § 1009.101, prior to the enactment of the MVFRL. In the Singer case, our supreme court noted that a motorcycle was a motor vehicle within the scope of the No-Fault Act such that basic loss benefits were available to a victim of a motorcycle accident other than the operator or passenger of the motorcycle. As under the MVFRL, operators and passengers of motorcycles were not covered because of the specific exclusion in § 103 of the No-Fault Act. Compare 40 P.S. § 1009.103 with 75 Pa.C.S.A. § 1714. The Singer court explained that it was reasonable to exclude operators or passengers of motorcycles because there was a greater risk of injury to an operator or passenger of a motorcycle and this risk would result in increased No-Fault insurance premiums if such persons were not excluded. However, the court in Singer held that the insurer of the motorcycle was responsible for providing basic loss benefits to third parties.

The enactment of the MVFRL does not alter this rationale. Operators and passengers of motorcycles continue to be excluded from basic loss benefits. 75 Pa.C.S.A. § 1714. It remains reasonable to exclude them because there is a greater risk of injury to an operator or passenger of a motorcycle and this risk would still result in increased insurance premiums if such persons were not excluded. However, the rationale for excluding operators and passengers of motorcycles is not applicable to a pedestrian such as the injured boy in the case sub judice. We will not allow the appellant in the instant case to shift the responsibility of paying first party benefits to Travelers. Thus, although the decision in Singer was reached before the MVFRL was enacted and under the now repealed No-Fault Act, there is nothing in the MVFRL which affects the result reached by the Singer court. We therefore reject appellant’s argument and find no error in the lower court’s decision.

Order affirmed.

CIRILLO, President Judge, files a concurring opinion.

CIRILLO, President Judge,

concurring.

I concur in the result reached by the majority. I write separately to emphasize how the majority’s conclusion is mandated by the relevant sections of the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S. § 1701 et seq.

Section 1711 of the MVFRL concerns required benefits and states in part:

An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except ... motorcycles ... shall include covérage providing a medical benefit in the amount of $10,000, and income loss benefit up to a monthly maximum of $1,000 up to a maximum benefit of $5,000 and a funeral benefit in the amount of $1,500 ... with respect to injury arising out of the maintenance or use of a motor vehicle____

75 Pa.C.S. § 1711 (emphasis added). This section clearly provides that insurers issuing policies covering motorcycles are not required to include in those policies the coverage discussed in section 1711.

Similar in its treatment of motorcycles is section 1712 of the MVFRL, which discusses the availability of benefits and provides in part:

An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except ... motorcycles ... shall make available for purchase first party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows: ...

75 Pa.C.S. § 1712 (emphasis added). This section does not require insurers issuing policies covering motorcycles to make first party benefits available for purchase. Clearly, sections 1711 and 1712 evince a legislative intent to distinguish motorcycles from other motor vehicles for insurance purposes. However, the above sections must be read in conjunction with sections 1713 and 1714.

Section 1714 of the MVFRL concerns ineligible claimants and states:

An owner of a currently registered motor vehicle who does not have financial responsibility or an operator or occupant of a ... motorcycle, ... or like type vehicle required to be registered under this title cannot recover first party benefits.

75 Pa.C.S. § 1714 (emphasis added).

Pursuant to this section, an operator or occupant of a motorcycle cannot recover first party benefits. The plaintiff in this matter was not an operator or an occupant of a motorcycle when he sustained his injuries. Therefore, the plaintiff was not an ineligible claimant under section 1714 and may recover first party benefits in accordance with section 1713 which discusses a priority system for the source of benefits. The relevant portions of section 1713 provide:

(a) General Rule. — Except as provided in section 1714 (relating to ineligible claimants), a person who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first party benefits against applicable insurance coverage in the following order of priority:
(4) For a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involved in the accident____

75 Pa.C.S. § 1713(a)(4).

Since the plaintiff was not an ineligible claimant under section 1714, and since his injuries arose out of the use of a motor vehicle, he may recover first party benefits against the applicable insurance coverage. Here, the plaintiff was not an occupant of a motor vehicle, therefore, he will recover from the policy on the motor vehicle involved in the accident. 75 Pa.C.S. § 1713(a)(4).

Unlike sections 1711 and 1712, section 1713 does not exempt motorcycles from its provisions. It seems logical that by not specifically excluding motorcycles, as in sections 1711 and 1712, the legislature intended to include them. Further, the terms “motorcycle” and “motor vehicle” are not defined in the MVFRL, however, section 1991 of the Pennsylvania Rules of Statutory Construction provides that, unless otherwise indicated, terms shall have the meanings ascribed to them in this section. 1 Pa.C.S. § 1991. Motor vehicle is defined as: “[a]ny self-propelled device in, upon or by which any person or property is or may be transported or drawn upon a public highway ...” 1 Pa.C.S. § 1991. Accordingly, a motorcycle falls within the above definition of a motor vehicle and would therefore be subject to the provisions of section 1713.

Consequently, only occupants and operators of motorcycles, and the other vehicles designated in section 1714, are ineligible to claim first party benefits. A party not mentioned in section 1714, such as the plaintiff in the instant case, is an eligible claimant and may recover first party benefits from the appellant pursuant to section 1713(a)(4).

      . 75 Pa.C.S.A. § 1711.

      . First party benefits are medical benefits, income loss benefits, accidental death benefits and funeral benefits. 75 Pa.C.S. § 1702.

      . It is clear that the minor plaintiff in the instant case was not an owner of a currently registered motor vehicle who does not have financial responsibility.


author: HOFFMAN, Judge:

text:
    566 A.2d 626
    In re Mary Ann MANUEL. Appeal of Henry MORRIS and Martha Morris, his Wife.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1989.
    Filed Nov. 21, 1989.

      Virginia I. Cook, Pittsburgh, for appellants.
    Licia Xannuzzi, Pittsburgh, for Allegheny County Children and Youth Services, participating party.
    Before ROWLEY, MELINSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order below granting a petition to remove a child, Mary Ann Manuel, from the custody of appellants, Henry and Martha Morris, and placing her in shelter care under the supervision of appellee, Allegheny County Children and Youth Services (“CYS”). Appellants contend that the lower court erred in entering its order because it failed to advise them of their right to counsel at the hearing. For the reasons that follow, we agree and, accordingly, we reverse the order below and remand for further proceedings consistent with this memorandum.

Mary Ann Manuel was born on April 21, 1976. On the petition of CYS, she was adjudicated dependent on May 6, 1976 and placed in temporary foster care. By a shelter order dated January 5, 1977 she was placed in the custody of appellants under the continuing supervision of CYS. On March 18,1982 Mary Ann was removed from the custody of appellants and placed at Holy Family Institute, a treatment and care facility for dependent children. Appellants contested this placement, and Mary Ann was returned to their custody on January 26, 1983. Sometime in January or early February, 1988, CYS filed a shelter petition pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., seeking removal of Mary Ann from appellants’ custody. Because Mary Ann had already been adjudicated dependent, and had been sheltered by appellants for some time, the court scheduled a § 6341 dispositional hearing in response to appellee’s petition. See, e.g., In re Hall, 288 Pa.Super. 495, 432 A.2d 621 (1981). At the hearing on February 18, 1988, CYS maintained that it was seeking to remove the child because appellants terminated Mary Ann’s therapy, did not cooperate in attempts to reinstitute it, and refused to allow Mary Ann to attend scheduled counseling. Although appellants were present at the hearing, they were unrepresented by counsel and presented no evidence. The only evidence presented was that of CYS. Based on this evidence, the court found that it would be in Mary Ann’s best interest to be removed from appellants’ custody and placed in a residential program that would provide her regular care and therapy. That same day, the court issued a shelter order removing her from appellants’ custody and placing her at the Holy Family Institute. This appeal followed.

Appellants initially contend that the trial court erred in holding a hearing to determine the placement of a child in their care without first advising them of their right to counsel. Conversely, CYS maintains that appellants are merely foster parents, not “parties” under the Juvenile Act, and thus they are not entitled to counsel at such a hearing. The trial court, relying on our decision in In Interest of Michael Y., 365 Pa.Super. 488, 530 A.2d 115 (1987), agreed with appellee and held that appellants were not “parties” to the litigation, and thus were not entitled to representation. Section 6337 of the Juvenile Act states, in relevant part, that:

Except as otherwise provided under this chapter a party is entitled to representation by legal counsel at all stages of any proceedings under this chapter and if he is without financial resources or otherwise unable to employ counsel, to have the court provide counsel for him. If a party appears without counsel the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court if applicable____

Id. § 6337 (emphasis added). In Michael Y., supra, we noted that: “the term ‘party’ is not defined in the Juvenile Act. Nor do we attempt to define its exact parameters here; the fact patterns of dependency cases are too variable to permit us to establish one definition that would be applicable to all cases.” 365 Pa.Super. at 496, 530 A.2d at 119-120. In Michael Y. the child had lived with his great grandmother all of his life. At age fourteen, he was adjudicated dependent. His great-grandmother was unrepresented by counsel at the dependency hearing. Pursuant to § 6337 she filed a motion for reconsideration on the ground that as a party to the proceedings she was entitled to be represented by counsel. We agreed, holding that “[an] appellant merits the status of a party based on either of two considerations: first, that she is the legal custodian of the juvenile; second, that it is her care and control of the juvenile that is in question.” Id., 365 Pa.Superior Ct. at 496, 530 A.2d at 120 (emphasis added).

Here, appellants, like the great-grandmother in Michael Y, have cared for the child in question for virtually all of her life. Furthermore, appellants are the legal guardians of the child’s nearest blood relative, her mother, who is unable to care for herself. Finally, and most importantly, the petition of CYS and the evidence it presented make clear that the subject of the hearing was appellants’ care and control of Mary Ann. We recognize that this case is distinguishable from Michael Y, in that appellants are not the legal custodians of the juvenile; nevertheless, we are satisfied that the factors cited above are sufficient to merit party status for appellants under § 6337. Accordingly, we conclude that they were entitled to counsel. The trial court also held that, even if appellants were entitled to counsel, they waived that right. The court reasoned that, because appellants had appeared in a custody hearing represented by counsel five years earlier, they must have knowingly decided to waive their right by appearing without counsel in this proceeding. We disagree. In Michael Y we held that “an effective waiver of a party’s right to counsel requires (1) that the trial court explain the benefits of assistance of counsel and inform the party that if he or she is indigent, counsel will be provided to him or her at no cost, and (2). that the party affirmatively waive the right to counsel on the record.” Id., 365 Pa.Superior Ct. at 495, 530 A.2d at 120 (emphasis supplied). Here, appellants made no such waiver. A review of the hearing transcript reveals no evidence that the court explained the benefits of assistance of counsel to them. Similarly, the record is devoid of any evidence that appellants affirmatively waived their right to counsel in this proceeding. Because the record does not affirmatively demonstrate that appellants were made aware of their right to counsel and then waived it, we cannot affirm the order below on this ground.

For the foregoing reasons, we reverse the order of the trial court and remand for proceedings consistent with this memorandum.

Reversed and remanded. Jurisdiction is relinquished.

      . A dependent child is defined in 42 Pa.C.S.A. § 6302 as:
      A child who:
      (1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals;
      (2) has been placed for care or adoption in violation of law;
      (3) has been abandoned by his parents, guardian or other custodian;
      (4) is without a parent, guardian, or legal custodian;
      (5) while subject to compulsory school attendance is habitually and without justification truant from school;
      (6) has committed a specific act of acts of habitual disobedience of the reasonable and lawful commands of his parent, guardian or other custodian and who is ungovernable and found to be in need of care, treatment or supervision;
      (7) is under the age of ten years and has committed a delinquent act;
      (8) has been formally adjudicated dependent, and is under the jurisdiction of the court, subject to its conditions or placements and who commits an act which is defined as ungovernable in paragraph (6);
      (9) or has been referred pursuant to section 6323 (relating to informal adjustment) and who commits an act which is defined as ungovernable in paragraph (6).

        Id.

      A review of CYS's May 20, 1976 petition reveals that Mary Ann was adjudicated dependent pursuant to subsection (1).

      . The record on this appeal contains little information regarding the original placement of Mary Ann with appellants. Initially, we should note that there is no evidence suggesting that appellants are related to Mary Ann. Instead, the only apparent relation between appellants and Mary Ann is that appellants are the legal guardians of Mary Ann’s mother, Marjorie Manuel, who suffers from severe psychiatric problems. Mary Ann’s father is now deceased.
      Although the nature of the placement is unclear, the trial court referred to appellants as Mary Ann’s "foster parents,” and, apparently, their role was similar to that of foster parents. In this regard, we note that the January 5, 1977 order states in pertinent part: "the court finds on clear and convincing evidence, that the above named child is deprived, [and] it is hereby ordered that said child be placed under the supervision of Allegheny County Welfare Services, in the custody of Mr. and Mrs. Henry Morris [appellants].”
      42 Pa.C.S.A. § 6302 defines a custodian as "[a] person other than a parent or legal guardian, who stands in loco parentis to the child, or a person to whom legal custody of the child has been given by order of a court.”

      . See N.T. February 18, 1988 at 3. Although this petition is neither docketed nor part of the record, its contents are not in dispute.

      . We note that the decision in this case was delayed for nearly a year pending receipt of the trial court record and opinion.

      . Nevertheless, we should note that the Juvenile Act recognizes the importance of parties such as appellants. Thus § 6332 provides that notice of delinquency hearings is to be provided to the "parents, guardian, or other custodian” of the child, and § 6335 provides that upon filing of a petition for a hearing regarding the status of a child, "the court shall direct the issuance of a summons to the parents, guardian or other custodian, a guardian ad litem, or any other persons as appear to the court to be proper or necessary parties to the proceeding, requiring them to appear before the court at the time fixed to answer the allegations of the petition.”

      . Appellants are also entitled to court appointed counsel if they are "needy persons." See 42 Pa.C.S.A. § 6332(a).

      . Appellants’ final contention is that the evidence presented was insufficient to prove that it was in Mary Ann’s best interest to be removed from their custody. With regard to this claim, we have carefully reviewed the evidence presented by CYS at the hearing, and we are satisfied that the evidence was sufficient to support the court’s determination. See N.T. February 18, 1988 at 3-6. We note, however, that the trial court’s decision denying appellants party status prevented them from effectively participating in the hearing by obtaining counsel, presenting testimony and cross-examining witnesses. Thus, the evidence below was completely one-sided.
      Appellants also contend that the trial court erred by failing to determine whether alternative services which would have allowed Mary Ann to remain at home were feasible. Because of our disposition of appellants’ initial claim, however, we need not address this argument.


author: JOHNSON, Judge: MELINSON, Judge,

text:
    566 A.2d 857
    P.G. PUBLISHING COMPANY D/B/A Pittsburgh Post Gazette, Appellant at No. 967, v. COMMONWEALTH of Pennsylvania acting By and Through the DISTRICT ATTORNEY OF ERIE COUNTY. COMMONWEALTH of Pennsylvania v. David C. COPENHEFER. Appeal of COMMONWEALTH of Pennsylvania (at No. 1083).
    Superior Court of Pennsylvania.
    Submitted Oct. 12, 1988.
    Filed Sept. 27, 1989.
    Reargument Denied Dec. 7, 1989.

      Thomas W. McGough, Jr., Pittsburgh, for P.G. Publishing, appellant (at 967) and appellee (at 1083).
    William R. Cunningham, Dist. Atty., for Com., appellant, (at 1083) and appellee (at 967).
    Before BROSKY, JOHNSON and MELINSON, JJ.
   JOHNSON, Judge:

Both the Pittsburgh Post-Gazette Publishing Company and the Commonwealth of Pennsylvania, acting through the person of the District Attorney of Erie County, have appealed from certain aspects of an order entered by the Honorable Roger M. Fischer of the Court of Common Pleas of Erie County. In this case the Pennsylvania State Police had secured four search warrants in connection with a kidnapping that ended in a savage murder. During the course of the ongoing investigation, before any murder charge had been filed, the Post-Gazette sought access to the warrants and the probable cause affidavits supporting the warrants. After a hearing at which the Commonwealth had the burden of proving why access should be denied the paper, the trial court granted access to the newspaper but at the same time stayed access to allow the Commonwealth to appeal. We conclude, in light of Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987), that the trial court was required to apply a balancing test weighing the paper’s right of access against the governmental interest in the integrity of its ongoing investigation. Finding that such a test was not applied, we vacate and remand.

Thirty-seven year old Sally Weiner was kidnapped from a church parking lot in Corry, Pennsylvania, early on the afternoon of June 17, 1988. PennBank branch manager Harry Weiner, her husband, received a telephone call later that day at the bank that sounded like a tape recording of his wife. Mrs. Weiner stated that she had been kidnapped, that her life was in danger and that her husband should follow the directions provided by the kidnappers to retrieve a bag from beneath a car in the parking lot outside the bank. A ransom note inside the bag directed Mr. Weiner to fill the bag with money, pick up portable radio equipment from a nearby Radio Shack store and drive to a location some ten miles out of town to await further instructions. Mr. Weiner attempted to comply with the demands but no further instructions were received by him. Early on Sunday morning, June 19, 1988, a farmer found Mrs. Weiner’s body in a wooded area of his property. Mrs. Weiner had been killed by a single gunshot wound to the back of the head. On June 20, 1988, David C. Copenhefer was charged by the Pennsylvania State Police with one count each of Kidnapping, Attempted Robbery and Attempted Extortion arising from the kidnapping and the death of Mrs. Weiner. Subsequently, Copenhefer was charged with Mrs. Weiner’s murder.

During the investigation, the police obtained four search warrants from District Justice Patsy Nichols. After Copenhefer had been charged with the above crimes, but before he was charged with the murder, the Pittsburgh Post-Gazette sought access to the probable cause affidavits supporting the search warrants. On June 28, 1988 the newspaper filed a Motion to Intervene after the District Justice and the District Attorney denied access to these documents. On the same date, the Commonwealth filed a Petition to Seal the affidavits.

As of June 29, 1988, the date of the trial court’s hearing on the Petition to Seal, neither Copenhefer nor anyone else had been arrested for the unsolved homicide which was the focus of a major ongoing criminal investigation by state and local police and the Federal Bureau of Investigation. After the hearing, the trial court denied the Commonwealth’s Petition to Seal and granted the Post-Gazette’s Motion to Intervene as well as the newspaper’s request to inspect and copy the search warrants and supporting affidavits. The court, however, stayed its order pending appeal by the Commonwealth. This timely appeal by both parties followed. The Post-Gazette also filed an Application for Partial Supersedeas or To Vacate the Stay Pending Appeal. On July 12, 1988, we refused to vacate the stay prior to the consideration of this appeal on the merits.

Although no party to the proceeding has questioned issues of jurisdiction or appealability, we determine sua sponte that this appeal is properly before us. Jay Dee Department Store, Inc. v. South Penn Gas Co., 362 Pa.Super. 404, 524 A.2d 940 (1987); Wertz v. Anderson, 352 Pa.Super. 572, 508 A.2d 1218 (1986). Orders which are separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost, are considered final orders. See Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978) quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We conclude that this order is appealable under the “collateral order” exception to the final judgment rule and we address the issues raised in this appeal on the merits.

Appellate review of a trial court’s decision in this case requires that we determine whether the trial court abused its discretion since the determination regarding access to warrants and their supporting affidavits is within the trial court’s discretion. Fenstermaker, 515 Pa. at 513, 530 A.2d at 420. An abuse of discretion is not merely an error of judgment, but is an overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record. Com monwealth v. Kubiac, 379 Pa.Super. 402, 550 A.2d 219 (1988).

Both the Commonwealth and the Post-Gazette challenge the extent of the newspaper’s right of access to the search warrants and supporting affidavits which were issued during the investigation of this homicide. The Commonwealth poses three questions:

I. Whether a search warrant is a public document prior to the time a magistrate must file same with the clerk of record?
II. Whether there is a public right of access to search warrants?
III. Whether the lower court erred in denying the Commonwealth’s request to seal the record?
The Post-Gazette asks that we consider two questions: I. Did the Post-Gazette properly establish its right to inspect and copy search warrants and supporting affidavits relating to a criminal prosecution?
II. Did the trial court properly stay the effect of its order pending the outcome of the appeal on the merits?

The Commonwealth contends that the Pennsylvania Supreme Court determination in Commonwealth v. Fenstermaker, supra, holding that the public and the press have a presumptive right of access to arrest warrants and their supporting affidavits, should not be extended to search warrants and their supporting affidavits. The Commonwealth maintains that the nature, the purposes and the consequences of search warrants differ from those same attributes of arrest warrants. For the purposes of this analysis, we will assume that the search warrants and supporting affidavits are public documents and we will therefore not address the Commonwealth’s assertion that, pursuant to the Rules of Criminal Procedure, search warrants and their supporting affidavits do not have to be filed with the Clerk of the Court of Common Pleas prior to preliminary hearings and do not become public documents once filed with the magistrate. We emphasize that the trial court’s determination that these documents are public records does not resolve the primary issue, whether a newspaper has a right to inspect and copy search warrants and supporting affidavits while a homicide investigation is in progress. We have not considered and take no position on a right of access which may arise upon the completion of any such investigation.

In Commonwealth v. Fenstermaker, supra, our supreme court addressed the extent a newspaper would be afforded access to arrest warrant affidavits in connection with serious criminal charges, including homicide, following the conclusion of an investigation and after arrest. Justice Flaherty’s majority opinion emphasized that there had been no assertion in Fenstermaker that warrant affidavits “should be open to public inspection prior to an actual arrest having been made.” 515 Pa. at 505, 530 A.2d at 416. Justice Flaherty also observed that Fenstermaker “concerns only access to affidavits supporting arrest warrants that have already been executed.” Id.

Fenstermaker is factually and legally inapposite to the present case. Access to search warrant affidavits while a major homicide investigation is in progress is an entirely different situation from access to arrest warrant affidavits after an arrest has been made and the investigation has been completed. Justice Flaherty clearly indicated that Fenstermaker was to be applied only following the conclusion of an investigation and after arrest. See 515 Pa. at 505, 530 A.2d at 416. Thus, we decline to extend the scope of the Pennsylvania Supreme Court decision in Fenstermaker to the situation where a search warrant is sought by the press during an ongoing criminal investigation.

While we acknowledge a common law right to inspect judicial documents, we emphasize that such right is not absolute. Fenstermaker, 515 Pa. at 512, 530 A.2d at 420; Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570, 580 (1975). It is the responsibility of the trial court to determine, in the exercise of its informed discretion, whether the common law right of access will outweigh countervailing factors. Id. Certainly the trial court may be best situated to gauge the vulnerability of an ongoing criminal investigation. In the present case the basic governmental function of apprehending a criminal presented a strong countervailing factor that the trial court should have weighed against the newspaper’s right of access. The United States Supreme Court has recognized that, while many functions of government will best operate under public scrutiny, other government functions would be frustrated if conducted openly, for example, the grand jury system. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1, 10 (1986).

In Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980), the Pennsylvania Supreme Court stated that the right of access to court proceedings is limited for several reasons, including the defendant’s right to a fair trial and “the needs of government to obtain just convictions and to preserve the confidentiality of sensitive information and the identity of informants.” 489 Pa. at 425, 414 A.2d at 321 quoting Gannett v. De Pasquale 443 U.S. 368, 398, 99 S.Ct. 2898, 2915, 61 L.Ed.2d 608, 633 (1979). Thus, in this and similar situations, the trial court, along with the other relevant factors, is required to weigh and balance the presumption that information received by it is to be open to the public against the need for the Commonwealth to keep confidential that information the disclosure of which will jeopardize ongoing criminal investigations. See, for example, Commonwealth v. Miller, 513 Pa. 118, 131, 518 A.2d 1187, 1195 (1986) (protecting the identity of a confidential informant).

Therefore, we conclude that the determination regarding access to search warrants and supporting affidavits requires a balancing of interests by the trial court. The Fenstermaker court held:

Where the presumption of openness attached to a public judicial document is outweighed by circumstances warranting closure of the document to public inspection, access to the document may be denied.

Fenstermaker, 515 Pa. at 513, 530 A.2d at 420 (emphasis added). As Judge Weis, in his concurring opinion in United States v. Criden, 648 F.2d 814 (3d.Cir.1981), states, “[i]n determining whether records should be available for copying, the court must weigh ‘the interests advanced by the parties in the light of the public interest and the duty of the courts.’ ” 648 F.2d at 830. Thus, in our review of the discretion exercised and articulated by the trial court, we must determine both the relevance and the weight of the factors the trial court considered and whether these factors were given appropriate balance.

It follows that, when relying on discretionary power, a trial court:

[S]hould place on record the circumstances and factors that were crucial to his determination. He should spell out his reasons as well as he can so that counsel and the reviewing court will know and be in a position to evaluate the soundness of his decision.

Rosenberg, Judicial Discretion of the Trial Court: Viewed from Above, 22 Syracuse L.Rev. 635, 665-66, (1971); see also Fenstermaker, 515 Pa. at 514, 530 A.2d at 421; Commonwealth v. Buehl, 316 Pa.Super. 215, 226, 462 A.2d 1316, 1322 (1983). To allow meaningful appellate review, it is necessary for the trial court to provide detailed and articulated reasons upon which the exercise of its discretion was based.

In the present case, disclosure of the warrants and the affidavits were requested by the Post-Gazette during an ongoing murder investigation. At the hearing, Sergeant Patrick W. McHenry of the Pennsylvania State Police testified as follows:

Q. Have you been assigned to the investigation of the kidnapping and death of Sally Weiner?
A. Yes, I’m in charge of the major case there, in troop. B.
Q. Are you the lead investigator in that investigation?
A. No, I’m a supervisor. The lead investigator would be Trooper Carl Buckshaw.
Q. Now has the investigation revealed that Sally Weiner died?
A. Yes, it has.
Q. As a result of your investigation, has anyone been arrested for that death?
A. Not for the death, no sir.
Q. Has there been an arrest?
A. Yes, sir, there has been.
Q. And what arrest was there, sergeant?
A. For kidnapping; Mr. David Copenhofer.
Q. Was Mr. Copenhofer charged with the homicide of Sally Weiner?
A. No, sir, he was not.
Q. To date has anyone been charged with the homicide?
A. No, sir.
Q. Now, I said homicide, are you treating it as a homicide?
A. Yes, we are.
Q. So, there is an active homicide investigation into the death of Sally Weiner?
A. Yes, sir, there is.
Q. As part of that investigation, have you made an appeal to the public for information?
A. Yes, sir, we have.
Q. As part of that investigation, have you made a determination as to whether the death of Sally Weiner was caused by one or more individuals?
A. We haven’t made a definitive conclusion yet. We believe that more than one individual committed the murder.

N.T. 6/29/88 at 23-25. On cross-examination, Sergeant McHenry testified that “[cjounting the FBI, we probably have seventy-some investigators” involved. N.T. 6/29/88 at 25-26. It is clear from this unrefuted testimony that the investigation of Mrs. Weiner’s homicide was in full swing at the time the Motion to Intervene by the newspaper was filed and heard. As the Commonwealth observed in its closing remarks:

We also have the testimony of Sergeant McHenry that possibly more than one person is involved in the investigation. So, it is likely that there is someone at large who has a history of being armed and dangerous and who represents a real threat to this community____ This investigation is also seeking public information, help from the public. And to release this information in search warrants or otherwise would taint the information which was received from the public. Because you don’t know as an investigative matter where people see these things, in the paper or as a result of search warrants. It taints the evidence that you receive from them, it interferes with the ability to gather information from the public____ We can’t consider that public right to access, your Honor, in a vacuum ... The public has an interest and a right in capturing this individual who committed this homicide. The public has a right to be safe in their community and in their homes. And at this point, based on the lack of an arrest for the homicide, we cannot say they are safe.

N.T. 6/29/88 at 43-44 (emphasis added).

Following the June 29, 1988 hearing, the trial court found these search warrants and affidavits to be public records and denied the Commonwealth’s request to seal the documents for failure of proof. However, at the same time the trial court stayed its order and sealed the documents to forbid access pending appeal. While, by both granting access and yet staying access pending appeal, the trial court appeared to be sensitive to the interests of both sides, the court still did not articulate a balancing analysis.

We are aware that a trial court is under the disadvantage of often having to make rapid-fire rulings in areas of law where there is little guidance and few fixed principles, as in the present case. We need not quarrel with Judge Fisher’s holding that the search warrants and probable cause affidavits are public records. However, the order entered on June 30, 1988 by the trial court was devoid of articulated findings of fact which would allow us to determine whether the trial court’s conclusion regarding the newspaper’s access to these documents is adequately supported by the particular facts which were before it. When the release of documents will seriously jeopardize an ongoing investigation by the police, the documents or the proceedings may be sealed from public access until the conclusion of the investigation and after arrest. In the present case, the trial court determined that the search warrants and the supporting affidavits were public records to which the newspaper had access but did not thereafter articulate its balancing of the competing interests: the newspaper’s right of access weighed against the compelling governmental function of effective law enforcement.

Though the trial court committed an error of law by failing to demonstrably balance the governmental interest against the newspaper’s right of access, it avoided harm by imposing a stay pending appeal. Accordingly, we vacate that portion of the order which allowed the newspaper access to the search warrants and supporting affidavits during an ongoing investigation and remand for proceedings consistent with this opinion.

Order vacated and remanded. Jurisdiction relinquished.

MELINSON, J. files a dissenting opinion.

MELINSON, Judge,

dissenting.

I respectfully dissent.

First, while I agree with the majority that a trial court must balance the competing rights in matters of public access to judicial proceedings and state its findings for the record, I think it is incorrect for the majority to “assume that the search warrants and supporting affidavits are public documents” for purposes of its analysis. This approach sweeps aside the seminal issue of these cases.

The threshold inquiry “in a case such as this where a common law right of access is asserted is whether the documents sought to be disclosed constitute public judicial documents, for not all writings connected with judicial proceedings constitute public judicial documents.

Commonwealth v. Fenstermaker, 515 Pa. 501, 508, 530 A.2d 414, 418 (1987).

As our Supreme Court recognized in Fenstermaker, there exists in this Commonwealth a “common law right to inspect public documents,” including public judicial documents. Id., 515 Pa. at 510, 530 A.2d at 419 (emphasis added). See also Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); United States v. Criden, 648 F.2d 814 (3d Cir.1981). Implicit in this, though not actually stated in Fenstermaker, is the presumption that non-public documents are not available for public inspection. Fenstermaker cites examples of judicial documents that do not constitute public judicial documents: transcripts of bench conferences held in camera and working notes maintained by the prosecutor and defense counsel at trial. Fenstermaker, 515 Pa. at 508, 530 A.2d at 418. If this court were to determine that search warrants or their affidavits are not public judicial documents, the need for a balancing test of the competing rights would be obviated. The public would not have a presumptive right to access. For the reasons that the Court in Fenstermaker found arrest warrant affidavits to be public judicial documents, however, it is clear that search warrants and their affidavits are also public judicial documents.

Like the arrest warrant affidavits discussed in Fenstermaker, search warrants and their affidavits are filed with magistrates and thus constitute “judicial” documents. Fenstermaker, 515 Pa. at 508-509, 530 A.2d at 418. See Pa.R.Crim.P. 2002A(a) (“The District Attorney of any county may require that search warrant applications filed in the county have the approval of an attorney for the Commonwealth prior to filing.”); Pa.R.Crim.P. 2010 (“The judicial officer to whom the warrant was returned shall file the search warrant, all supporting affidavits, and the inventory [of the items seized pursuant to the search warrant] with the clerk of the Court of Common Pleas of the judicial district in which the property was seized.”), and Pa.R. Crim.P. 146(b) (“The issuing authority shall transmit the transcript [of the proceedings of a defendant held over for trial] to the clerk of the proper court____ In addition to the transcript[,] the issuing authority shall also transmit ... (3) all affidavits filed in the proceeding____”). See Fenstermaker, 515 Pa. at 509, 530 A.2d at 418, regarding the Supreme Court’s construction of similar rules of criminal procedure applicable to arrest warrant affidavits.

In Fenstermaker, the Court rested its determination that arrest warrant affidavits are public judicial documents primarily upon two major considerations with additional support from other factors. These primary considerations are certain public policy concerns and the fact that the affidavits are filed as judicial documents. I quote the policy concerns articulated in Fenstermaker at length:

Specifically, from a policy standpoint, public inspection of arrest warrant affidavits would serve to discourage perjury in such affidavits, would enhance the performance of police and prosecutors by encouraging them to establish sufficient cause before an affidavit is filed, would act as a public check on discretion of issuing authorities thus discouraging erroneous decisions and decisions based on partiality, and would promote a public perception of fairness in the arrest warrant process. Indeed, the salutary effects of openness in this aspect of the criminal justice system are clear, and, as noted in Richmond Newspapers, Inc. v. Virginia, 448 U.S. [555] at 572, 100 S.Ct. [2814] at 2825, 65 L.Ed.2d [973] at 986 [ (1980) ], “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”

515 Pa. at 507-508, 530 A.2d at 418.

It requires no lengthy analysis to conclude that the policy considerations which the Fenstermaker Court found so persuasive in reaching its result have equal application to the issue of whether search warrants and their affidavits are public judicial documents. Indeed, one may without hesitation insert “search warrants and their affidavits” for “arrest warrant affidavits” in the above passage. On the basis of the well-considered analysis of Fenstermaker, and finding that search warrants and their affidavits are filed judicial documents clothed with the identical policy concerns discussed in Fenstermaker, I would hold that search warrants and their affidavits are public judicial documents presumptively open to the public.

Of course, this holding does not conclude the matter. As the majority correctly and very ably stated, the public right of access may be limited, delayed, or denied, when appropriate, if outweighed by other competing rights and public interests, including the endangerment of an ongoing police investigation. (See cases cited in the majority’s opinion.) I am constrained to dissent, however, because the majority’s directive to the lower court to balance the competing interests in this case is unnecessary and hints of an invasion of the fact-finding function of that court.

Very simply, the trial court’s opinion demonstrates that the court was aware that its duty was to consider and balance the competing interests and that the court indeed did so:

As Justice Flaherty stated in Fenstermaker, numerous factors may enter into the Court’s consideration of whether or not the moving party has met its burden to overcome the presumption that the warrants are public records. These factors may include, inter alia, a showing that the Sixth Amendment fair trial rights of the Defendant would be adversely affected by disclosure, that there is a need to protect informants, that the necessity of preserving the integrity of ongoing criminal investigations is paramount, or that there are no reasonably alternative methods available to protect the interests which would be threatened by disclosure.
We find nothing in the record to substantiate any of the four reasons given by the Commonwealth in its Petition to Seal. “It is inconsistent to permit the sealing of such affidavits upon the mere request of the District Attorney.” Fenstermaker [530 A.2d] at page 420 [sic]. Here, the Commonwealth has proven only that there is an ongoing investigation, but there is no evidence that the homicide investigation would in any way be hampered, prejudiced or compromised by release of the search warrants and affidavits. There is also no evidence that the Defendant or the public would be harmed in any way by such disclosure.

Trial court opinion at p. 7.

From my reading of these passages, it is incorrect for the majority to state that the trial court “did not ... articulate its balancing of the competing interests.” To remand to the trial court with the directive that it consider these interests and articulate its findings when it had already done so is not only unnecessary, but also an impermissible intrusion into the trial court’s fact-finding domain. This is so because the majority leaves the trial court with more than a suggestion that it considers that the balance, in this instance where a police investigation is ongoing, should be tipped the other way. This, I believe, is a factual determination to be made by the trial court, and absent an abuse of discretion, such a determination should stand. See Delahanty v. First Penn sylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983) (It is not the province of the appellate court to find facts or substitute its judgment for that of the trial judge), and Tyler v. King, 344 Pa.Super. 78, 496 A.2d 16 (1985), appeal denied July 1, 1986 (Superior Court may disregard or overrule trial court’s determinations of credibility and weight of the evidence only in clear cases and when the Court finds that those determinations were manifestly erroneous, arbitrary, and capricious or flagrantly contrary to the evidence).

Further, like the issue regarding the public nature of search warrants and their affidavits, the majority failed to entertain any consideration of the Post-Gazette’s second question on appeal, namely, “Did the trial court properly stay the effect of its order pending the outcome of the appeal on the merits?” This issue concerns not the newspaper’s right of access, but the newspaper’s timely right of access.

The Post-Gazette makes a compelling point, I believe, when it questions the appropriateness of the trial court’s stay, which would effectively deny public access pending appeal, when the trial court made a finding that public access would not hamper, prejudice, or compromise the police investigation or harm the defendant or the public in any way based upon the evidence submitted at trial. A stay is warranted under Pa.R.A.P. 1732 if the following criteria are met: (1) the petitioner makes a strong showing that he is likely to prevail on the merits; (2) the petitioner has shown that without the requested relief, he will suffer irreparable injury; (3) the issuance of a stay will not substantially harm the other interested parties in the proceedings, and (4) the issuance of the stay will not adversely affect the public interest. Township of Chartiers v. William H. Martin, Inc., 518 Pa. 181, 542 A.2d 985 (1988); Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 545, 467 A.2d 805 (1983). The trial court’s findings that public access would not harm the interests of the Commonwealth is at odds with the second criterion of this test. On balance, however, is the fact that the trial court was faced in this instance with the uncertainties of a potentially far-reaching case of first impression. Because of that circumstance, I do not believe that the learned trial judge abused his discretion in taking a more cautious approach.

For the foregoing reasons, I would affirm the order of the trial court.

      . It is even more curious that the majority overlooked this issue when it was presented as the first question on appeal by the Commonwealth.

      . I also note that search warrants and their affidavits have been held to be public judicial documents in other jurisdictions. See Cowles Publishing Company v. Murphy, 96 Wash.2d 584, 637 P.2d 966 (1981) (recognizing a common-law right of access to judicial records in the form of search warrants, affidavits of probable cause, and inventory lists), and In re Search Warrant for Second Floor Bedroom, 489 F.Supp. 207 (D.C. Rhode Island 1980) (documents filed with the court, including affidavits of probable cause for search warrants, are public records available for inspection).

      . The majority carefully distinguishes the circumstances in this case, involving the issue of access to search warrants and their affidavits while a police investigation is under way, from those before the Fenstermaker court, involving the issue of access to an affidavit of probable cause for arrest following the arrest.


author: PER CURIAM: KELLY, Judge,

text:
    566 A.2d 865
    Linda D. ARNOLD, Administratrix of the Estate of Alton P. Arnold, Jr., Deceased, Appellant, v. James G. ZANGRILLI, M.D., and South Pittsburgh Urologic Associates.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1989.
    Filed Oct. 10, 1989.
    Reargument Denied Dec. 15, 1989.

      Byrd R. Brown, Pittsburgh, for appellant.
    William Clifford, Pittsburgh, for appellee (submitted).
    Before ROWLEY, TAMILIA and KELLY, JJ.
   PER CURIAM:

This is an appeal by the widow/administratrix of the estate of Alton P. Arnold, Jr., from a judgment in favor of appellee, Dr. Zangrilli in a medical malpractice action following the death of Mr. Arnold from complications from diabetes. Appellant argues that appellee’s counsel made inappropriate and prejudicial comments during the closing argument which warrant a new trial. In addition, appellant argues that the trial court made three erroneous evidentiary rulings: a) he should not have excluded testimony by appellant as to what Dr. Zangrilli told the decedent after decedent had seen Dr. Zangrilli; b) he should not have precluded appellant’s recitation of the decedent’s statements indicating his belief, after seeing Dr. Zangrilli, that he did not have diabetes; and c) he denied appellant the opportunity to cross-examine a defense physician/witness about the length of time necessary for obtaining an appointment with a medical specialist. After thoroughly reviewing the record and the arguments of the parties, we affirm.

Appellant first argues that a new trial is necessary because appellee’s counsel stated in closing argument, “I’m asking you to believe [defendant]. I do and I think there is no reason not to.” Although it is true that counsel should not comment on the credibility of witnesses by stating for the jury his or her personal belief about a witness’ credibility, such an error does not always require a new trial. Commonwealth v. Gay, 369 Pa.Super. 340, 535 A.2d 189 (1988); Commonwealth v. Sparks, 351 Pa.Super. 320, 505 A.2d 1002 (1988). In the present case, the objectionable opinion statements by defense counsel occurred near the end of his argument to the jury in which he tried to impress upon the jury all the reasons why they should find the defendant to be credible. In light of the considerable proper argument of defense counsel about why the defendant should be believed, the single, brief statement that counsel himself finds the defendant credible was little more than the logical conclusion to the argument being made. Moreover, considering the nature of the defense argument, it would not have been a surprise to the jury to hear that defense counsel believes his client. Reviewing the inappropriate comment by defense counsel as to the veracity of the defendant in the context in which the statement was made, we conclude that the error was not so egregious or prejudicial as to warrant a new trial.

Appellant’s argument that the court should have permitted her to testify to what the decedent told her Dr. Zangrilli told the decedent was expressly waived at trial when counsel stated: “I recognize that the first conversation constitutes double hearsay, so I withdraw my offer of proof with respect to that, my colleague having objected.” (N.T. 9/22/87, p. 29-30.) Therefore, we will not review that issue on appeal.

Appellant’s argument that the trial court erred in precluding her from testifying that the decedent told her that “he did not have sugar,” and that the decedent told her the only health problem he had was prostritis is also belied by the record. The trial court ruled that appellant could not testify as to what her husband told her. However, the trial court permitted appellant to testify to her own conclusions drawn from discussions with decedent. In fact, appellant testified that the decedent thought he had prostritis, and that appellant was very, very relieved that he did not have what he thought he had. (N.T. 9/22/87, p. 50.) Thus, in fact, appellant was permitted to testify to the substance of the statements which her husband made to her. We therefore find no error.

Finally, appellant argues that she was improperly denied the opportunity to cross-examine Dr. Zangrilli’s expert witness as to how long it takes to obtain an appointment with an internist. A review of the record leaves no doubt that the trial court expressly granted appellant the opportunity to ask the expert how long it takes to get an appointment, and the expert answered the question. Therefore the trial court committed no error.

Judgment affirmed.

KELLY, J., files a dissenting opinion.

KELLY, Judge,

dissenting:

I respectfully dissent. For the reasons which follow, I would find merit in appellant’s first contention and reverse and remand for a new trial.

Appellant contends that the trial court erred in permitting appellee’s counsel to assert his personal opinion as to appellee’s credibility when the entire defense rested upon the issue of appellee’s credibility. Appellant asserts that the prejudicial impact of appellee’s counsel’s objectionable remarks regarding appellee’s credibility was exacerbated by the trial court when counsel’s proper objection was denied, and the trial court’s instruction left the clear, yet unquestionably incorrect impression that counsel’s expression of faith in his client’s credibility was a fact to be considered by the jury.

At trial, appellee based his defense upon the fact that he had informed Mr. Arnold, the decedent, that his practice was limited to urology and that he had informed Mr. Arnold that he should go to another doctor. (N.T. 9/23/87 at 133-134, 156, 162.) As a practical matter, the appellee’s primary defense rested upon appellee’s uncorroborated testimony that he properly advised Mr. Arnold to seek alternative care. Thus, appellee’s credibility was the lynchpin of his defense.

During closing arguments, appellee’s counsel made the following statement:

Before I get to that, I’m asking you to a great extent on this message here about this conversation, this byplay, this face-to-face, this interaction between physician and patient. I’m asking you to believe Dr. Zangrilli. I do and I think there is no reason not to. If the suggestion—

(N.T. 9/25/87 at 21.) (emphasis added).

At that point, appellant’s counsel objected to appellee’s counsel’s expression of personal belief: “Your Honor, I object. It’s not important what he believes or what I believe. It’s important what the evidence is and I object to him constantly saying what he believes.” (N.T. 9/25/87 at 21-22.) (emphasis added). The trial court overruled appellant’s counsel’s objection, stating: “It’s within the bounds. This is argument.” (N.T. 9/27/87 at 22.) Appellee’s counsel then continued, “Thank you, Your Hon- or. So I’ve asked you to believe him. That’s essentially this case.” (N.T. 9/27/87 at 22.) (emphasis added).

In Abrams v. Philadelphia Suburban Transportation Company, 438 Pa. 115, 264 A.2d 702 (1970), our Supreme Court, stated:

Whether a lawyer’s argument to the jury transgresses the bounds of legitimate advocacy is primarily for the discretion of the trial judge, and an appellate court will not interfere with the exercise of this discretion, unless the record manifests that it was clearly abused. Leasure v. Heller, 436 Pa. 108, 258 A.2d 855 (1969).

264 A.2d at 704. See Harvey v. Hassinger, 315 Pa.Super. 97, 461 A.2d 814 (1983); see also Boscia v. Massaro, 365 Pa.Super. 271, 529 A.2d 504 (1987) (plurality).

Instantly, I find that the trial court’s broad discretion was abused. Credibility was the lynchpin upon which appellee’s defense relied. Counsel’s remark went straight to the issue of credibility. By clearly and unequivocally expressing his personal opinion as to appellee’s credibility, appellee’s counsel in effect switched from the role of advocate to the role of unsworn witness in violation of Pa.R.P.C. 3.4, the advocate/witness rule, the restrictions upon lay or expert opinion evidence as to credibility, and the statutory requirement that all witnesses make an appropriate oath or affirmation to tell the truth before testifying.

I am mindful that comment on the credibility of a witness by itself does not invariably constitute reversible error. See Commonwealth v. Graham, 522 Pa. 115, 560 A.2d 129 (1989); see generally Annotation, Propriety and Preju dicial Effect of Comments by Counsel Vouching for Credibility of Witness-State Cases, 45 A.L.R. 4th 602 (1986 & 1988 supp.). As Justice McDermott stated in his concurrence in Commonwealth v. Graham, supra:

... it is counsel’s function to comment, criticize, expose the content of the evidence of a witness to its own inconsistency, improbability, interest, conflict with other evidence, physical, chemicals, the common sense of the occasion and any other epistemological defect. So long as he does not offer it as true because he personally believes it to be true, his argument has few limits in the search for truth.

560 A.2d at 130 (Slip opinion at 11-12) (emphasis added). In the case sub judice, counsel did precisely what is not permitted; he plainly vouched personally for his witness’ credibility.

Even an objectionable improper comment on the credibility of a witness may not require a new trial, however, if the trial court responds promptly to opposing counsel’s objection and provides an adequate curative instruction to the jury. Accord United States v. Modica, 663 F.2d 1173 (2nd Cir.1981). This did not occur here however.

In fact, appellee’s counsel’s patently improper argument/testimony regarding his personal belief in appellee’s credibility was improperly endorsed rather than properly censored by the trial court’s remark that such an expression of counsel’s personal belief was within the bounds of argument. The jury could reasonably have concluded from those remarks that the appellee’s counsel’s statements regarding his belief in appellee’s credibility was properly before them for consideration during jury deliberations. I find, therefore, that appellee’s counsel’s remark could reasonably have prejudiced the jury, and thereby tainted the verdict. See Draper v. Airco, Inc., 580 F.2d 90 (3rd Cir. 1978).

The majority cites Commonwealth v. Sparks, supra and Commonwealth v. Gay, supra, to support the proposition that while “counsel should not comment on the credibility of witnesses by stating for the jury his or her personal belief about a witness’ credibility, such an error does not always require a new trial.” Majority Opinion, supra, at 105. The majority finds that appellee’s counsel’s comment that he believed appellee “was little more than the logical conclusion to the argument being made” and, in context, “was not so egregious or prejudicial as to warrant a new trial.” Id., at 866. For the reasons which follow, I find that both of the criminal cases cited above may be distinguished from the case sub judice, and that the majority’s reliance on those cases is misplaced.

In Commonwealth v. Sparks, supra, the appellant was convicted of aggravated assault and rape. The appellant contended that the prosecutor, during closing argument, improperly conveyed personal belief regarding the complaining witness’ credibility. Specifically, appellant objected to the following statements: “[s]he was honest, she was credible and she was candid,” and “[s]he was candid and honest, brutally honest.” Commonwealth v. Sparks, supra, 351 Pa.Superior Ct. at 326, 505 A.2d at 1005. This Court found that the statements were not expressions of counsel’s personal belief, “but when read in context, were part of a larger argument based on the observable events at trial and designed to persuade the jury that the witness deserved to be believed.” Commonwealth v. Sparks, supra, 351 Pa.Superior Ct. at 327, 505 A.2d at 1006. Excerpts from the prosecutor’s closing argument support this finding:

Try to remember, and I am sure you can, because you were all listening very attentively when Miss Daingerfield (sic) was on the stand, how she appeared. Forget about my questioning her for the moment, but how she appeared when Mr. Perez questioned her. Remember her, she was unflappable. Her story didn’t change one iota. He could not impeach her. He could not destroy her. She was too real. She was honest, she was credible and she was candid.
Another thing I want you to remember that she said, besides admitting that she might have been naive in staying there and a little idealistic about believing in him. What did she say? Remember she said on the witness stand, “I trusted him.” Who did she look at when she said, “I trusted him?” She looked at him, right at him. You can’t beat a witness like that. She was candid and honest, brutally honest. By the way, all those responses were given, I noted, on cross-examination. That means Mr. Perez elicited them through his own questioning.

Commonwealth v. Sparks, supra, 351 Pa.Superior Ct. at 326-327, 505 A.2d 1005-1006. The prosecutor based her argument exclusively on events to which the jury itself observed. In the instant case, on the other hand, appellee’s counsel’s personal comments as to the witness’ credibility referred to testimony by appellee regarding an alleged conversation between appellee and the decedent which the jury was obviously not able to observe and assess for itself.

Moreover, in Commonwealth v. Sparks, supra, the complaining witness’ testimony was substantially corroborated. In the case at bar, appellee’s crucial testimony was wholly uncorroborated and thus appellee’s credibility was in fact the lynchpin of the defense. Appellee’s counsel’s improper comments as to his personal opinion of appellee’s credibility, which were endorsed by the trial court as proper for jury consideration, were of greater significance in this case than were the far less objectionable remarks in Sparks.

In Commonwealth v. Gay, supra, the appellant was convicted of aggravated assault, recklessly endangering another person, possession of an instrument of crime, and carrying a firearm without a license on a public street as a result of a nonfatal shooting during a group altercation at a carnival. The only two persons who identified appellant were both on juvenile probation. Defense counsel, at trial, offered their probationary status as evidence and the trial court disallowed its admission. This Court reversed and remanded for a new trial, relying on Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986).

In dicta, this Court stated that the prosecutor should not have told the jury in closing argument that he believed the two identification witnesses. However, this Court found that such a statement, though in error, was not so egregious that standing alone it would require a new trial. Even accepting the persuasive validity of the dicta generally, Gay is otherwise distinguishable. In the instant case, the statements made by appellee’s counsel might not have been so egregious, standing alone, as to warrant the grant of a new trial. However, these statements coupled with the trial court’s effective approval of appellee’s counsel’s statements may have had a significant effect upon the jury. The combined effect could quite possibly have tainted the jury deliberations, and therefore warrants the grant of a new trial.

In conclusion, I would find merit in appellant’s first contention, and would reverse and remand for a new trial. Accordingly, I dissent.

      . I note that I agree with the majority as to the disposition of appellant’s other claims on appeal.

      . Pa.R.P.C. 3.4, "Fairness to Opposing Party and Counsel," provides in pertinent part:
      A lawyer shall not:
      (c) when appearing before a tribunal, assert the lawyer’s personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but the lawyer may argue, on the lawyer's analysis of the evidence, for any position or conclusion with respect to the matters stated herein; or____

        See also Commonwealth v. Willis, 380 Pa.Super. 555, 552 A.2d 682 (1988) (advocate/witness rule); Commonwealth v. Thek, 376 Pa.Super. 390, 546 A.2d 83 (1988) (expert testimony regarding witness credibility); 42 Pa.C.S.A. § 5901 (every witness must take a judicial oath before giving any testimony).