author: FORD ELLIOTT, Judge:

text:
    673 A.2d 361
    COMMONWEALTH of Pennsylvania v. Richard L. PAYTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 25, 1995.
    Filed March 13, 1996.
    Michael E. Duda, Harrisburg, for appellant.

      Richard E. Guida, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before DEL SOLE, FORD ELLIOTT and OLSZEWSKI, JJ.
   FORD ELLIOTT, Judge:

Appellant comes before us challenging the judgment of sentence entered April 12, 1995, following appellant’s conviction at bench trial for the offenses of driving under the influence of alcohol and driving without headlights. Prior to trial appellant had filed a motion to dismiss the charges against him due to the Commonwealth’s failure to bring him to trial within the time periods prescribed by Pennsylvania Rule of Criminal Procedure 1100, 42 Pa. C.S.A. (Rule 1100). The trial court held a hearing on the motion and denied same September 19, 1994. A motion for reconsideration was also denied. Appellant now brings his Rule 1100 contentions before this court. We find ourselves in agreement with appellant and will vacate the judgment of sentence and dismiss the charges against him.

We will very briefly review the procedural fact situation before us. The Commonwealth itself concedes that appellant was not brought to trial within the limits set by Rule 1100 and, by and large, adopts the procedural milieu delineated by the trial court. As we find that the trial court’s depiction of the facts is supported by the record, we shall adopt it also and set it forth as follows:

In the present action, the Commonwealth filed the criminal complaint against the defendant on March 12, 1993 and the case was not scheduled for jury trial until 542 days later on September 14, 1994. In computing this time, the parties agree that 67 days are not chargeable to the Commonwealth because that is the time during which the defendant was granted a continuance in order to acquire legal counsel.

Pa.R.Cr.P. 1100(c)(3)®. Even after deducting this period, 475 days passed before the defendant was brought to trial, well beyond the 365-day limit.

The following is a detailed outline of the procedural history in this case:

3/12/93 - Complaint filed
3/17/93 - Citation filed/summons issued
4/12/93 - Summons returned unclaimed
4/12/93 -Warrant issued
4/27/93 -Case continued by District Justice — unknown reason
5/ 6/93 - Case continued on request of defendant
7/13/93 -Case continued by District Justice — unknown reason
12/13/93 -Case continued by District Justice — unknown reason
6/ 9/94 -Preliminary hearing held before District Justice, defendant bound over for trial, date for formal arraignment set for 7-21-94
7/21/94 - Formal arraignment
8/17/94 -File received by Clerk of Courts from District Justice
8/17/94 - Case included on trial list for September 14, 1994 term (first available criminal trial week after arraignment)
8/22/94 - Defendant’s Motion to Dismiss filed
9/14/94 -Defendant’s case scheduled for jury trial (next scheduled criminal jury trial week)

Trial court opinion, 04/06/95 at 2.

Of the delay described above, we are particularly concerned with the time appellant’s case spent languishing in the district justice’s office prior to the scheduling of the preliminary, hearing:

Most of the delay in this case was the result of the failure of the District Justice’s Office to schedule the defendant’s case for a preliminary hearing. From the date the complaint was filed, March 12, 1993, until the preliminary hearing was held, June 9,1994, 444 days elapsed of which 67 were excludable, leaving a total period of 377 days.

Trial court opinion, 04/06/95 at 4. Apparently, the particular district justice’s office at issue was in a state of turmoil. Although the parties present argument pertaining to delay following the scheduling of the preliminary hearing, we confine our holding today to the 377-day delay described above, because we may vacate on that basis alone. We now begin our analysis of the narrow issue thus framed.

We begin by noting the relevant section of Rule 1100:

(g) For defendants on bail after the expiration of 365 days, at any time before trial, the defendant or the defendant’s attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon.
If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial on a date certain. If, on any successive listing of the case, the Commonwealth is not prepared to proceed to trial on the date fixed, the court shall determine whether the Commonwealth exercised due diligence in attempting to be prepared to proceed to trial. If, at any time, it is determined that the Commonwealth did not exercise due diligence, the court shall dismiss the charges and discharge the defendant.

Pa.R.Crim.P. 1100(g) (in pertinent part), 42 Pa.C.S.A.

The central case relied upon by appellant, and the case most critical to our consideration today, is Commonwealth v. Browne, 526 Pa. 83, 584 A.2d 902 (1990). We begin by briefly summarizing the facts of this paramount case. The defendant in Browne was charged with driving under the influence of alcohol by criminal complaint filed April 6, 1987. Because of the vacation schedules of the prosecuting police officers, the preliminary hearing was not scheduled until June 17, 1987. Before then, the defendant requested, and was granted, a continuance until July 1, 1987. No district attorney entered an appearance at the district justice level, and no district attorney was present at the preliminary hearing.

The district justice found a prima facie case and bound the matter over for trial. Thereafter, on July 1, 1987, thé district justice served upon the defendant a notice of arraignment, scheduling same for September 30, 1987. The district attorney’s office was sent notice of the arraignment date on approximately July 8, 1987. Because of this arraignment date, trial could not be held until the next term of court, which commenced November 9, 1987. However, the 180-day period for commencing trial under Rule 1100 expired October 18, 1987. On August 31, 1987, pursuant to the requirements of old Rule 1100, the Commonwealth petitioned for an extension of time for commencing trial. This was denied. On November 23, 1987, the trial court granted defendant’s motion to dismiss.

The Commonwealth appealed this decision to this court and we reversed. The basis of our reversal was that the Commonwealth had acted with due diligence and was not responsible for the delay caused by the district justice’s untimely scheduling of the arraignment. We reasoned that the district attorney is generally not responsible for or charged with derelictions on the part of other agencies within the criminal justice system, reciting Commonwealth v. Monosky, 511 Pa. 148, 511 A.2d 1346 (1986), in support.

The defendant in Browne then appealed our decision to the supreme court arguing that pursuant to local county rule and practice, the district attorney possessed actual control over arraignment dates. Thus, had the district attorney’s office maintained some sort of case tracking system, it was in the district attorney’s actual power to schedule the arraignment in a timely fashion.

In broad and rather blunt language, the supreme court reversed this court. The court stated,

it is not unreasonable or erroneous to expect the District Attorney’s Office to track arraignment dates on a routine basis to determine whether prosecution under Rule 1100 is thereby jeopardized. That office and those like it must, to be diligent, have simple systems in place to carry out the routine duties of the office. Sound reason requires no less. It would be easy to maintain a diary book where the relevant dates in a given prosecution could be promptly entered and checked against the Rule 1100 run date as a matter of course. Practicing lawyers must maintain docket books to make sure that they appear in court on the right date, file pleadings on time, complete discovery in a timely fashion, and do not run afoul of statutes of limitation. No less is required of a properly administered district attorney’s office. Here, the District Attorney’s Office ‘blew it’ and they did so because a routine diary or docket system was apparently not in place. That constitutes a failure to exercise due diligence. It has been held that ‘due diligence’ imposes the obligation on the government to ‘read its mail and respond intelligently.’ United States v. Salzmann, 417 F.Supp. 1139, 1155 (D.C.E.D.N.Y., 1976). We hold that due diligence likewise imposes on the government the duty to employ simple recordkeeping systems in circumstances such as this. Unlike Commonwealth v. Monosky, supra, the delay here was not the fault of the minor judiciary (the district justice), but must be fully attributed to the district attorney’s office itself.

Browne at 89-90, 584 A.2d at 906.

Instantly, the Commonwealth and the trial court both attempt to distinguish Browne in order to conclude that the Commonwealth exercised due diligence. It is put forth that in Browne, a case tracking system would have been effective because the district attorney’s office had actual power to schedule an arraignment. In the case sub judice, however, even if the district attorney’s office knew the status of the case, it was powerless to schedule the preliminary hearing. As the trial court stated,

The broad pronouncements in the above cases suggest that a district attorney should act as a watchdog over the district justice offices in their county by ‘tracking’ all criminal cases which are commenced in the district justice office. However, we believe that under a narrow reading of these cases, Browne in particular, that there was no record keeping duty upon the District Attorney’s Office here.
In order to deny a Rule 1100 motion under the clear language of subsection (g), not only must it be shown that a district attorney acted with due diligence but also ‘that the circumstances occasioning the postponement were beyond the control of the Commonwealth.’ The District Attorney argues in this case, and we agree, that the actions of the District Justice Office here were beyond the control of the Commonwealth, i.e., the District Attorney. This fact distinguishes this case from Browne, where the Lancaster County District Attorney’s Office had, under local rule, the responsibility to schedule and conduct arraignments. Both parties agree that in this county, the District Attorney’s Office has no control over the scheduling of preliminary hearings in the district justice offices and thus no control over delays in those offices.

Trial court opinion, 04/06/95 at 10.

While we understand the distinction that the trial court draws, we believe that it does so improperly. As the trial court admits, its reading of Browne is narrow. We believe, on the other hand, that the supreme court intended Browne to be read very broadly. Three factors lead us to this conclusion.

First, Justice Papadakos began his analysis in Browne by admonishing this court for its ever more restrictive interpretation of Rule 1100:

We granted allocatur based on a continuing review of our appellate docket, because, blatantly put, we have become concerned that the Superior Court is more and more inclined to accept any and every excuse for failure to bring a criminal case to trial within the period prescribed by Rule 1100, and that this case presented the opportunity to prevent further emasculation of Rule 1100. For the reasons set forth below, we reverse.

Browne at 89, 584 A.2d at 905.

Second, in language we quoted earlier, Justice Papadakos wrote in very broad terms about what is expected of the district attorney’s office. The supreme court’s admonition to the District Attorney in Browne was clearly directed toward that office and those like it. Recognizing the Commonwealth’s responsibility for bringing the defendant to trial within the time prescribed by Rule 1100, the supreme court’s criticism was directed to the failure of district attorneys’ offices to maintain a tracking system to avoid Rule 1100 problems. We believe that the supreme court views such tracking as a necessary obligation of due diligence.

Third, the defendant in Browne attempted to distinguish the situation there from other instances of judicial delay, such as Monosky, because in other cases the district attorney had not been “charged” for the time lost to judicial delay. The distinction that the defendant in Browne relied upon was that under local rule and practice, the district attorney had actual power to schedule arraignments; thus had the district attorney monitored the case, that office could have timely scheduled the arraignment. Justice Papadakos observed this distinction and responded as follows:

In view of such power of control that resides with the District Attorney, Appellant argues that the Superior Court conclusion that the delay here was caused by the district justice and the scheduling policies and practices of the Court of Common Pleas amounts to nothing more than sophistry. In view of our disposition of this appeal below, it is unnecessary to comment on this argument of Appellant, but it is obvious that Appellant’s contentions provide a lucid explanation of what happened in the instant case consistent with the District Attorney’s extensive responsibilities under Local Rule 303.

Browne at 87 n. 1, 584 A.2d at 904-05 n. 1 (emphasis added). It seems abundantly clear from this comment by the court that the fact that the district attorney had actual power to schedule arraignments was not the pivotal factor in the court’s holding. If this is the case, then Browne obviously was intended to establish a broad case tracking requirement for a finding of due diligence, even where the district attorney’s office might ultimately be excused from the delay.

Such a requirement would seem to make sense instantly. Although the district attorney had no power to set a date for appellant’s preliminary hearing, had that office been monitoring cases such as appellant’s, the district attorney could have notified the district justice that the Rule 1100 deadline was drawing near. As it was, no such effort was expended. As set out earlier, under Rule 1100 it is the Commonwealth’s responsibility to bring the defendant to trial within the allotted time and that time begins to run from the filing of the Complaint.

Furthermore, if we interpret Rule 1100 as the Commonwealth and the trial court have done, we effectively eliminate from Rule 1100 time calculations any time period that a particular case resides with the district justice. This is so even with the full knowledge of the Commonwealth so long as the Commonwealth possesses no actual power to move the case along. We will not countenance this effective emasculation of the Rule in so many cases; in particular, we will not tolerate such an interpretation in light of the rather blunt directive given to us by the supreme court in Browne.

In the final analysis, we conclude that our supreme court intended Browne to be broadly interpreted. The trial court concedes that its reading is a narrow one. On this basis we must disagree.

One final matter merits our attention before we conclude. The Commonwealth has noted that Browne was decided under an older version of Rule 1100. Under that earlier iteration, Rule 1100 read, in pertinent part:

(c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial....
(c)(3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay, and the reasons why the delay cannot be avoided.

Former Pa.R.Crim.P. 1100(c)(1) and (c)(3). We also recall the language of current Rule 1100:

If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial on a date certain.

Rule 1100(g) (in pertinent part).

Previously, the burden on the Commonwealth was to demonstrate that it had exercised due diligence. Current Rule 1100 adds a second requirement: the Commonwealth must demonstrate both due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth. The Commonwealth appears to be arguing that this additional requirement somehow distinguishes Browne. The intimation seems to be that, previously, the “beyond the control” component was a part of the “due diligence” component and that Browne’s tracking requirement was meant to address that element of due diligence. In Browne the scheduling of arraignment dates was not beyond the control of the Commonwealth, and a case tracking system would have prevented the Rule 1100 violation. Instantly, however, the actual scheduling of preliminary hearings is beyond the control of the Commonwealth. The Commonwealth implies that, therefore, case tracking would have no efficacy. Frankly, we find this argument to be somewhat illusory.

This court has already applied the holding in Browne to a situation arising after the adoption of current Rule 1100. In Commonwealth v. Lopez-Melendez, supra, we applied the holding of Browne in a similar fact situation. Lopez-Melendez involved a drunk driving offense in Lancaster County. In that county there is an “Office of the Impaired Driver Program” which is apparently responsible for evaluating drunk driving cases for Accelerated Rehabilitative Disposition (ARD). The delay in Lopez-Melendez occurred when the defendant’s case languished in the Office of the Impaired Driver. Quoting both new Rule 1100(g) and Browne, we reversed the trial court, finding that the district attorney had failed to exercise due diligence. Lopez-Melendez does contain the same distinction from the instant case as Browne. Because the district attorney has the actual power to administer the ARD program, had the district attorney been tracking cases in the Office of the Impaired Driver, the district attorney could have actually moved the case along. Still, we do not view this as a distinction with a difference.

Simply stated, even if the delay instantly is beyond the control of the Commonwealth, this does not excuse an initial showing of due diligence as required by the rule. Had the district attorney been tracking cases in the district justice’s office, the district attorney could have notified the district justice that the Rule 1100 deadline was approaching. Had the district attorney so notified the district justice and then the case had not gone forward, then we would agree that matters were “beyond the control of the Commonwealth” and that the district attorney had done everything possible to move the case along (exercised due diligence).

Ultimately, we hold that the case tracking requirement of Browne addressed more than just a “beyond the control” element of due diligence. Rather, we find that it was crafted to ensure “due diligence” as a whole. In sum, we do not find that the amendment of Rule 1100 affects our result here. We are compelled to vacate.

Accordingly, having found merit in appellant’s appeal, we vacate the judgment of sentence and dismiss the charges against appellant. Jurisdiction relinquished.

      . The substantive facts pertaining to appellant’s criminal violations are not before us at all.

      . Commonwealth brief at 7.

      . Some of the cases we will be discussing were decided under an earlier version of Rule 1100. In fact, the Commonwealth raises an argument that the difference is important. We will grapple with that argument following our initial discussion. For now, we note that those cases decided under old Rule 1100 are at least instructive on the concept of "due diligence.” See Commonwealth v. Lopez-Melendez, 435 Pa.Super. 62, 68-69 n. 8, 644 A.2d 1235, 1239 n. 8 (1994).

      . Monosky involved a failure to timely commence trial under Rule 1100 because the district justice failed to transmit the transcript. The trial court granted the Commonwealth’s petition for extension. This court reversed finding a lack of due diligence. In turn, the supreme court reversed, holding,
      When the district attorney has timely filed an application for an extension and was unaware of inadvertent delay by the minor judiciary in processing the complaint, such judicial delay may justify granting the application.

        Monosky at 153, 511 A.2d at 1348.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    673 A.2d 367
    Kevin M. CARNEY, Appellant, v. Donna J. CARNEY, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1995.
    Filed March 20, 1996.

      Joseph M. Lamonanca, Chadds Ford, for appellant.
    R. Kurtz Holloway, Pottstown, for appellee.
    Before McEWEN, CIRILLO and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

On September 30, 1991, appellant, Kevin M. Carney, filed a complaint seeking a divorce from his wife, Donna J. Carney, appellee herein. A final order, both decreeing a divorce and equitably distributing the marital property, was entered in the Court of Common Pleas of Delaware County on December, 30, 1994. Appellant appeals from this order raising three issues for our review.

The parties to this case were married on June 2, 1978, and resided together until their separation on January 31, 1991. Both prior to and during the course of the marriage, appellant was employed full-time by the United States Army. While in military service, appellant sustained several injuries qualifying him for a 20 percent military disability benefit. On June 1, 1990, appellant was honorably discharged and received an advance of approximately $28,000 on account of this disability.

Appellant initially deposited these funds into a checking account titled jointly with his spouse. Subsequently, $8,000 was disbursed in satisfaction of marital debts and the remaining $20,000 was used to purchase a joint investment annuity from the Metropolitan Life Insurance Company. The trial court valued this annuity at $18,363 and classified it as marital property subject to equitable distribution. First, appellant alleges that the trial court erred in making such a distribution and seeks partition of the annuity in his favor.

Presently, it remains uncontested that veteran’s disability benefits are generally not marital property subject to equitable distribution. Relying upon Madden v. Madden, 336 Pa.Super. 552, 486 A.2d 401 (1985), however, the trial court decided that, due to the absence of clear and convincing evidence to the contrary, the placing of the funds initially in a joint bank account and then in a joint annuity created an estate by the entireties in such funds resulting in a complete gift to the marriage. Appellant claims, on several grounds, that the mere depositing of the funds in joint investments did not change their character from exclusively his to marital. After careful review, we disagree with appellant.

Whether an asset is marital property or separate property for purposes of distribution of the marital estate, is a matter reserved to the sound discretion of the trial court. Gordon v. Gordon, 436 Pa.Super. 126, 140-144, 647 A.2d 530, 537-538 (1994). An abuse of such discretion will be found to exist, however, if the trial court fails to follow proper legal procedures or misapplies the law. Id.

The trial court applied the following common-law principle in resolving the case at hand:

Where ... an account is placed in the names of a husband and wife, a gift and the creation of an estate by the entireties is presumed even though the funds used to ... establish the account were exclusively those of the husband.
:}; ‡ * # *
In order to overcome the presumption that an estate by the entireties exists and that a complete gift ensued therefrom, there must be clear and convincing evidence to the contrary.

Madden, 336 Pa.Super. at 558, 486 A.2d at 404 (citations omitted) (emphasis added). Appellant contends that this is not the proper legal principle to be applied in disposing of this case. Instead, citing Lessner v. Rubinson, 527 Pa. 393, 592 A.2d 678 (1991), appellant argues that the Multiple-Party Accounts Act, 20 Pa.C.S.A. § 6301, et seq., governs. In particular, appellant raises the applicability of 20 Pa.C.S.A. § 6303 which states, in pertinent part:

Ownership during lifetime
(a) Joint account. — A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sum on deposit, unless there is clear and convincing evidence of a different intent.

Appellant claims that the presumption created by this statutory provision requires appellee, as claimant, to produce clear and convincing evidence that he did not intend to retain his beneficial interest in the funds, but rather, intended to make a gift. Appellant claims that, absent such a rebuttal, the statute requires allocation of funds in a divorce on the basis of who contributed them to the account. Accordingly, appellant contends that the trial court created an improper presumption in favor of appellee and misallocated the burden upon him to rebut such presumption. We disagree.

The section defining the scope of applicability of the Multiple-Party Accounts Act provides:

§ 6302. Applicability of chapter
The provisions of this chapter are applicable to the determination of property rights among parties to multiple-party accounts and all claims made through them____

20 Pa.C.S.A. § 6302. We find that this general provision is preempted by the more relevant provisions relating to the husband and wife relationship contained in the Divorce Code. In so deciding, we are guided by the following principle of statutory construction:

§ 1933. Particular controls general
Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such provision shall prevail.

1 Pa.C.S.A. § 1933. See Commonwealth v. Klingensmith, 437 Pa.Super. 453, 650 A.2d 444 (1994); Comm. ex rel. Platt v. Platt, 266 Pa.Super. 276, 404 A.2d 410 (1979); Young v. Workmen’s Compensation Appeal Bd., 39 Pa.Cmwlth. 265, 395 A.2d 317 (1978); Duda v. Com., Bd. of Pharmacy, 38 Pa. Cmwlth. 378, 393 A.2d 57 (1978) (as a special provision, the provision of 35 P.S. § 780-123 which provides that only offenses that are felonies under the Drug Act, 35 P.S. § 780-101 et seq., may be punished by the suspension or revocation of a practitioner’s license, must be construed as an exception to the general provision of 63 P.S. § 390-5, giving the pharmacy board power to impose sanctions for any offense in connection with the practice of pharmacy); Bowers v. State Emp. Retirement Bd., 29 Pa.Cmwlth. 561, 371 A.2d 1040 (1977) (because Fiduciaries Act, 20 Pa.C.S.A. § 3101 et seq., was general legislation in comparison with the specific provisions of the State Employees’ Retirement Code, 71 Pa.C.S.A. § 5101 et seq., Code provisions controlled for purposes of determining whether widow of state employee, who was the legal representative of her deceased husband’s estate under the Fiduciaries Act, could be a “contributor” under the Retirement Code).

The Divorce Code clearly states that “it is the policy of the Commonwealth to ... [ejffectuate economic justice between parties who are divorced or separated ... and insure a fair and just determination and settlement of their property rights.” 23 Pa.C.S.A. § 3102. Pursuant to this statutory directive, the courts of this Commonwealth have exercised their broad equity power in matrimonial causes and established the legal principle that the placing of funds by one spouse in an account titled jointly in the names of both spouses creates a presumption of ownership as tenants by the entirety. This well-settled law comports with the intent of the Divorce Code that the dissolution of a marriage “should be accomplished in a manner that recognizes the prior existence of the family as both an economic and social unit.” Gordon v. Gordon, 293 Pa.Super. 491, 510, 439 A.2d 683, 693 (1981).

Based upon the foregoing, we hold that the provisions of the Multiple-Party Accounts Act are not applicable to the equitable distribution of funds held in joint accounts between husband and wife. Sutliff v. Sutliff, 361 Pa.Super. 504, 522 A.2d 1144 (1987), rev’d on other grounds, 518 Pa. 378, 543 A.2d 534 (1988) (rejecting the argument that the status of funds such as those presently in question should be based upon contribution). Accordingly, the trial court did not err in including the annuity in the marital estate for purposes of equitable distribution. Since Lessner, supra, concerned funds deposited in an account titled jointly in the names of a brother and sister, appellant’s reliance thereon is clearly misplaced.

Appellant next claims that, even if the trial court applied the correct legal standards in deciding this case, he has presented clear and convincing evidence to rebut the presumption that the annuity is marital property. Appellant claims that, at no time did he intend to gift the funds to the marriage and, further, that he relied on appellee’s reassurances that the funds would remain his alone.

In assessing this claim, the extent of our inquiry is restricted. “[I]n reviewing challenges to an order of equitable distribution, the trial court’s decision will stand unless the court abused its discretion in formulating the order.” Paulone v. Paulone, 437 Pa.Super. 130, 132, 649 A.2d 691, 692 (1994).

Presently, we believe that the trial court did not abuse its discretion in finding an absence of clear and convincing evidence sufficient to overcome the presumption that an entireties estate was created when appellant placed the disability funds in a joint account. The trial court noted that:

The Transcript is devoid of clear and convincing evidence that the annuity was to remain the sole property of [appellant]. In fact, the use of funds for marital necessaries, the withdrawals from the annuity for the wife and kids, and the fact that [appellant] could not close out the account without [appellee’s] authorization, support the determination ... that the annuity was marital property.

Trial court opinion, 6/22/95 at 4. Our review of the record discloses ample support for the trial court’s findings. For example, appellee testified that it was mutually agreed that the funds would be invested for both her and appellant’s retirement. N.T. 11/29/94 at 98. Since, “[u]nder the abuse of discretion standard, the appellate court does not usurp the trial court’s duty as factfinder”, we find no reason to disturb the trial court’s decision to treat the annuity as marital property. Paulone, 437 Pa.Super. at 132, 649 A.2d at 692; accord Sergi v. Sergi 351 Pa.Super. 588, 596-98, 506 A.2d 928, 933 (1986).

Finally, appellant argues that the trial court entered an order against the weight of the record evidence since, in both the December 30, 1994 order and the opinion dated June 22, 1995, the court allegedly fails to set forth an analysis of the factors contained in 23 Pa.C.S.A. § 3502. Appellant argues that the trial court opinion is, therefore, insufficient for us to conduct a review. Specifically, appellant contends that there is no discussion of how the court allocated assets, such as a computer, and liabilities and also no justification for the awarding of attorney’s fees.

Contrary «to appellant’s assertion, the trial court opinion clearly sets forth its basis for allocating the assets and liabilities and awarding attorney’s fees. The trial court notes reliance on the factors contained in section 3502(a) and, in particular, the disparity in the parties’ salaries as well as their differing occupations. On this basis, the trial court distributed certain assets, including the computer, in kind; awarded 55 percent of the net marital assets to appellee and 45 percent to appellant; and awarded appellee $1,500 as reasonable attorney’s fees.

In Powers v. Powers, 419 Pa.Super. 464, 470, 615 A.2d 459, 462 (1992), we stated that:

Although the trial court did not set forth its rationale in an exhaustive opinion, the court did provide the parties and this court with the reasons for its decision. The trial court after considering detailed testimony from the parties, stated, in making its decision, that it considered the “relevant 3502 factors of the Domestic Relations Code in distributing the marital assets.” The court ultimately focused on husband’s higher earnings [as well as other similar considerations] in shaping its award which granted wife slightly more than 50% of the marital assets. [W]e find no reason[, and appellant offers none,] to suggest that the court ignored any relevant factors, and ... the court has provided just reason for its disposition of the marital property____

We note, also, that 23 Pa.C.S.A. § 3502(e) permits the awarding of attorney’s fees, costs, and expenses in a divorce action. Further, consideration of the parties’ relative incomes is appropriate in determining whether to award such fees. See Endy v. Endy, 412 Pa.Super. 398, 407-08, 603 A.2d 641, 646 (1992). Based upon the foregoing, we can find no merit to appellant’s claim that the trial court failed to adequately set forth its analysis of the factors contained in 23 Pa.C.S.A. § 3502.

Order affirmed.

      . Appellant will continue to be credited each month from June, 1990, for approximately $160 per month until the advance is repaid at which time he will begin receiving further benefits.

      . See 23 Pa.C.S.A. § 3501(a)(6); Miller v. Miller, 421 Pa.Super. 23, 617 A.2d 375 (1992).

      . Appellant further claims that appellee has failed to meet this standard. Since we find the Multiple-Party Accounts Act to be inapplicable to the case before us, see infra, we do not proceed to address this particular allegation.

      . See, e.g., Lowry v. Lowry, 375 Pa.Super. 382, 544 A.2d 972 (1988); Constitution Bank v. Olson, 423 Pa.Super. 134, 140, 620 A.2d 1146, 1149 (1993) (“There is a sharp difference between joint estates and those held by husband and wife. An intention to create the entirety is assumed from the deposit of an asset in both the names of husband and wife, without more, and from the fact of marital relationship.”); Madden, 336 Pa.Super. at 557, 486 A.2d at 404 (“The gift is presumed by reason of the joint tenancy with [sic] is peculiar to the husband and wife relationship.... ”) (quoting In re Holmes Estate, 414 Pa. 403, 406, 200 A.2d 745, 747 (1964)).

      . The trial court found that appellant is employed as a chemical operator for Sun Refining and Marketing and has a weekly salary of approximately $1,000 whereas appellee is paid $340 per week as a customer service representative at Choice Seating.


author: DEL SOLE, Judge:

text:
    673 A.2d 371
    COMMONWEALTH of Pennsylvania v. Gaetano Thomas VAGLICA, Appellant.
    Superior Court of Pennsylvania.
    Submitted September 25, 1995.
    Filed March 20, 1996.

      Theodore J. Krol, Assistant Public Defender, Hollidaysburg, for appellant.

      Phillip 0. Robertson, Assistant District Attorney, Hollidaysburg, for the Commonwealth.
    Before DEL SOLE, FORD ELLIOTT and OLSZEWSKI, JJ.
   DEL SOLE, Judge:

This is an appeal from a judgment of sentence imposed by the Blair County Court of Common Pleas.

Following a domestic dispute, Appellant was arrested and charged with Simple Assault, Criminal Trespass, Criminal Mischief, Endangering the Welfare of Children, Resisting Arrest, Carrying Firearms Without a License, and Former Convict Not to Own a Firearm. Appellant was tried on these charges in December, 1993, but the jury was unable to reach a verdict. Appellant was retried on the latter four charges in December, 1994, and was convicted of the firearms charges.

The jury was selected two weeks before the second trial was scheduled to begin. On December 7,1994, immediately before the jury was to be brought into the courtroom for trial, Appellant’s attorney advised the court that Appellant wished to proceed pro se. After a brief discussion, the court denied Appellant’s request for self-representation.

Appellant argues that the trial court erred in not allowing him to represent himself at trial. While it is well settled that a criminal defendant has the right to proceed pro se at trial, Commonwealth v. Starr., 541 Pa. 564, 664 A.2d 1326 (1995); Commonwealth v. Rogers, 537 Pa. 581, 645 A.2d 223 (1994), the right of self-representation is not absolute. This right may be limited or waived, for instance, if it is not raised before trial. Commonwealth v. Owens, 496 Pa. 16, 436 A.2d 129 (1981).

In justifying the need to timely raise the right of self-representation, courts have recognized, among other things, the need to minimize disruptions, to avoid inconvenience and delay, to maintain continuity, and to avoid confusing the jury. U.S. v. Dunlap, 577 F.2d 867 (4th Cir.1978). In light of these objectives, when the request for self-representation is asserted after “meaningful trial proceedings have begun”, the granting of the right rests within the trial judge’s discretion. See, U.S. v. Lawrence, 605 F.2d 1321 (4th Cir.1979).

The issue of when “meaningful trial proceedings have begun” has not been addressed in Pennsylvania state courts, although it has been widely discussed by the federal courts of appeal. We agree with and adopt the view expressed by the following United States Courts of Appeal that meaningful trial proceedings have begun once the process of jury selection is commenced. See, U.S. v. Lawrence, 605 F.2d 1321 (4th Cir.1979); Chapman v. U.S., 553 F.2d 886 (5th Cir.1977); Robaras v. Rees, 789 F.2d 379, 383 (6th Cir.1986); U.S. v. Smith, 780 F.2d 810, 811 (9th Cir.1986); Horton v. Dugger, 895 F.2d 714 (11th Cir.1990). A defendant’s trial strategy can influence the jurors selected, and the jurors selected can determine trial strategy. The selection process is a “meaningful trial proceeding” which may have serious ramifications on the determination of guilt or innocence.

Appellant’s request for self-representation was made just minutes before trial was scheduled to begin. The jury had already been selected but was not yet sworn. Therefore, the decision to allow Appellant to proceed pro se was within the trial court’s discretion. When exercising its discretion, the trial court carefully considered Appellant’s reasons for the self-representation request, the quality of Appellant’s counsel, and Appellant’s prior requests to substitute counsel. In addition, the court was aware that Appellant’s request was preceded by the possibility of new counsel appearing on his behalf, but that this attorney would not formally enter an appearance unless the case was continued. Given that Appellant’s desire to proceed pro se was questionable and designed to seek delay of the trial, Judge Kopriva properly exercised her discretion in denying Appellant’s untimely request for self-representation.

Appellant next argues that the trial court erred when it refused to charge the jury on the defense of justification for the charges of Carrying a Firearm Without a License and Former Convict Not to Own a Firearm. The trial court may only instruct the jury on legal principles which are applicable to the evidence presented. Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980). We must therefore review the evidence presented to determine whether the trial court should have instructed the jury on the defense of justification.

Appellant and Carla Knutson had been paramours. The incident in question arose when Appellant went to Ms. Knutson’s home to retrieve property he claimed belonged to him. Ms. Knutson was not in the house when Appellant arrived but he entered the house anyway and began removing property. He saw a gun on the coffee table and put it in the leather pouch he was wearing around his waist. In the meantime, Ms. Knutson had called the police. The police arrived and attempted to get Appellant to leave the property. Appellant and the officer went outside and Appellant saw Ms. Knutson and Penny Kline who was holding Ms. Knutson’s infant son. Appellant tried to pull the baby away. The officer intervened and a struggle ensued. A second officer arrived and helped to subdue appellant and place him in the police car. When the officers patted Appellant down, they found the gun. Appellant testified that he took the gun because he feared that Ms. Knutson might use it against him. He testified that Ms. Knutson had been under psychiatric care and had tried to commit suicide eight months prior to this incident. This evidence, Appellant claims, is sufficient to raise a justification defense. We do not agree.

To warrant an instruction on justification, the evidence must show, inter alia, that the defendant faced a clear and imminent harm not a harm that is debatable or speculative. Commonwealth v. Capitolo, 508 Pa. 372, 498 A.2d 806 (1985). If the evidence, even if believed, is insufficient to sustain this element of the defense, the trial court need not charge the jury on justification. Id. Appellant’s evidence is clearly insufficient to show that he faced a clear and imminent harm. When Appellant found the gun, neither Ms. Knutson nor anyone else was there to constitute a threat to him. Appellant’s fear that Ms. Knutson might at some time in the future use the gun against him, even if believed, does not suffice to show a clear and imminent harm. See, e.g., Commonwealth v. Hoke, 381 Pa.Super. 70, 552 A.2d 1099 (1989) (no imminent harm where accident victim lying motionless on ground; therefore, justification no defense to leaving the scene); Commonwealth v. Boone 287 Pa.Super. 1, 429 A.2d 689 (1981) (adverse prison conditions do not rise to the level of immediate threat to the life and personal safety of defendant; justification no defense to escape charge).

Appellant finally claims that trial counsel was ineffective for failing to present a motion to sever the Former Convict Not to Own a Firearm charge from the other criminal charges. The standard to be used in evaluating ineffective assistance of counsel claims is well-settled. First, counsel’s performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit. Second, the defendant must demonstrate how the ineffectiveness prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987). Appellant has not been able to meet the second part of this test, because he was not found guilty of the non-weapons charges. Furthermore, since Appellant testified, his record would have been disclosed to the jury in any event.

Judgment of sentence affirmed, jurisdiction relinquished.


author: CERCONE, Judge:

text:
    673 A.2d 374
    COMMONWEALTH of Pennsylvania, Appellant, v. Don ROMERO.
    Superior Court of Pennsylvania.
    Argued Nov. 28, 1995.
    Filed March 21, 1996.

      John P. Malloy, Assistant District Attorney, Philadelphia, for the Commonwealth, appellant.
    Jeffrey P. Minehart, Philadelphia, for appellee.
    Before HUDOCK,’ FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge:

This is an interlocutory appeal as of right taken by the Commonwealth from the trial court’s order granting suppression of physical evidence. See Pa.R.A.P., Rule 311(d), 42 Pa.C.S.A. We reverse and remand for further proceedings.

The events underlying this appeal began on September 25, 1993 at approximately 3:30 in the morning. Philadelphia Housing Police Officer Jake Bolden was patrolling on foot in a deserted area near the Richard Allen Housing Project on North Sartain Street in Philadelphia. As the officer approached the project, he noticed appellee, Don Romero, holding a silvered handgun. The officer was only eight to ten feet away from appellee when he observed appellee tuck the firearm into his pants waistband. Officer Bolden thereupon ordered appellee to place his hands against a nearby wall while he conducted a pat-down search. The officer found the weapon and nine rounds of live ammunition. After placing appellee. under arrest, Officer Bolden conducted a search incident to arrest which revealed a plastic bag containing forty-three (43) individual packets of cocaine on appellee’s person. N.T. 10/17/94 at 4-12, 18-22 (testimony of Jake Bolden).

At the suppression hearing, appellee corroborated Officer Bolden’s averments in terms of the time and place of the incident. See id. at 26-34. Appellee admitted that the officer saw the silver gun in his possession, and told him to “get against the wall” for a pat-down search. Id. at 31. Appellee also stated that he had no license to carry a firearm. Id. at 27. However, he denied that he had ever possessed any controlled substances. Appellee testified that Officer Bolden retrieved the packets of cocaine from underneath the seat of his police vehicle and subsequently “planted” them in appellee’s trousers. Id. at 28, 33.

Appellee filed a suppression motion, arguing that there was no probable cause for the initial stop, and thus no basis for the seizure of the weapon, ammunition, and cocaine. The suppression court judge, the Honorable Flora Barth Wolf, agreed with this contention:

The mere possession of a gun, while certainly of grave concern to personal and public safety, does not automatically give rise to probable cause to arrest. In our Commonwealth, and in Philadelphia, citizens may legally carry guns if licensed to do so. That right is the same in the Richard Allen housing project as in Society Hill.

Trial Court Opinion filed April 19, 1995 at 2-3. However, Judge Wolf explicitly ruled that she did not find appellee’s statements concerning the planting of evidence to be credible. See Suppression Court Opinion at 2 n. 3. The suppression court further held that, under the circumstances of this case, it was proper for Officer Bolden to conduct a Terry stop and a weapons pat-down search. Thus the lower court declined to suppress the handgun and the rounds of ammunition. However, Judge Wolf found no basis for arresting appellee and therefore suppressed the cocaine. The Commonwealth’s timely notice of appeal followed. Appellant presents a single issue for our consideration: did the lower court err in suppressing forty-three packets of cocaine seized from appellee in a search incident to his arrest for unlawful possession of a firearm?

It is unquestionably the province of the suppression court to make findings of fact and conclusions of law as to whether evidence was obtained in violation of an accused’s constitutional rights. Commonwealth v. Tuck, 322 Pa.Super. 328, 332, 469 A.2d 644, 646 (1983). The standard of review which governs a ruling on a motion to suppress is well-settled. An appellate court must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom. Commonwealth v. Oglialoro, 377 Pa.Super. 317, 318, 547 A.2d 387, 387 (1988) aff'd, 525 Pa. 250, 579 A.2d 1288 (1990). In reviewing an appeal taken by the Commonwealth from a suppression order,

we must consider only the evidence of the defendant’s witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. Furthermore, our scope of appellate review is limited primarily to questions of law. We are bound by the suppression court’s findings of fact if those findings are supported by the record. Factual findings wholly lacking in evidence, however, may be rejected.

Commonwealth v. Bennett, 412 Pa.Super. 603, 606, 604 A.2d 276, 277 (1992) (citations omitted).

The bench mark of propriety for a warrantless arrest is the existence of probable cause. Commonwealth v. Rodriguez, 526 Pa. 268, 273, 585 A.2d 988, 990 (1991); Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). Probable cause to effectuate an arrest exists when the facts and circumstances within the knowledge of the arresting officer are reasonably trustworthy and sufficient to justify a person of reasonable caution in believing that the arrestee has committed an offense. Commonwealth v. Zook, 532 Pa. 79, 89, 615 A.2d 1, 6 (1992), cert. denied, 507 U.S. 974, 113 S.Ct. 1420, 122 L.Ed.2d 789 (1993). In addressing the existence of probable cause, courts must focus on the circumstances as seen through the eyes of the trained police officer, taking into consideration that probable cause does not involve certainties, but rather “the factual and practical considerations of everyday life on which reasonable and prudent men act.” Interest of D.W., 427 Pa.Super. 629, 632-633, 629 A.2d 1387, 1388 (1993), appeal denied, 537 Pa. 650, 644 A.2d 735 (1994).

The court must base its probable cause determination on a common-sense non-technical analysis, Commonwealth v. Gray, 509 Pa. 476, 482, 503 A.2d 921, 925 (1985), and must employ the viewpoint of the police officer, not that of the average citizen. Commonwealth v. Burnside, 425 Pa.Super. 425, 430, 625 A.2d 678, 681 (1993) (citing Commonwealth v. Quiles, 422 Pa.Super. 153, 167, 619 A.2d 291, 298 (1993) (en banc)). Probable cause for a warrantless arrest requires only the probability, and not a prima facie showing, of criminal activity. Id.; Commonwealth v. Wilson, 414 Pa.Super. 302, 606 A.2d 1211 (1992), appeal denied, 535 Pa. 658, 634 A.2d 221 (1993). Moreover, probable cause for a warrantless arrest exists when criminality is one reasonable inference; it need not be the only, or even the most likely, inference. Commonwealth v. Quiles, 422 Pa.Super. at 167, 619 A.2d at 298; Commonwealth v. Dennis, 417 Pa.Super. 425, 431, 612 A.2d 1014, 1017 (1992), appeal denied, 535 Pa. 654, 634 A.2d 218 (1993).

The uncontradicted evidence adduced at the suppression hearing indicates that in the early morning hours of September 25, 1993, Officer Bolden saw appellee in visible possession of a firearm near the Richard Allen public housing project in North Philadelphia. This observation was a sufficient basis for the trained police officer to reasonably infer that appellee was acting in violation of the statutory prohibition against carrying a firearm on public streets or on public property in Philadelphia, 18 Pa.C.S.A. § 6108. Even if these events had occurred in the Society Hill section of Philadelphia rather than in a public housing project, the result would be the same: probable cause existed for Officer Bolden to effectuate appellee’s warrantless arrest for contravening the Pennsylvania Uniform Firearms Act. See also Commonwealth v. Davis, 418 Pa.Super. 318, 614 A.2d 291 (1992) (police officer who observed a man holding a gun in the doorway of a private residence had probable cause to suspect that the man had carried the weapon in public in order to reach the residence; therefore the officer had probable cause to believe that the man had committed an infraction of the Uniform Firearms Act).

Once appellee was arrested, the police were permitted to conduct a pat-down search of his person. Commonwealth v. Zook, 532 Pa. at 91, 615 A.2d at 7. It was this pat-down search pursuant to appellee’s lawful arrest which yielded the forty-three packets of cocaine concealed on appellee’s person. Thus, the cocaine packets are properly admissible against appellee at trial. See, e.g., id. (evidence seized pursuant to a lawful warrantless arrest is admissible at arrestee’s subsequent trial). Because we find that appellee’s arrest was based upon probable cause, and that the subsequent search incident to arrest was lawful, we conclude that it was error for the lower court to grant appellee’s motion to suppress.

Order reversed.

FORD ELLIOTT, J., concurs in the result.

      . The suppression hearing transcript incorrectly indicates that the incident occurred on September 25, 1994. See N.T. 10/17/94 at 4. However, the criminal information lists the arrest date as September 25, 1993. The suppression judge noted that the case would not be enumerated as Number 1742-43, October Term 1993 if the arrest had occurred in 1994. See Suppression Court Opinion filed April 19, 1995 at 1 n. 2.

      . Specifically, the Commonwealth charged Mr. Romero with violating sections 6106 and 6108 of the Pennsylvania Uniform Firearms Act (PUFA), 18 Pa.C.S.A. §§ 6101-6120. See id. § 6106 (Firearms not to be carried without a license) and § 6108 (Carrying firearms on public streets or public property in Philadelphia).


author: SAYLOR, Judge:

text:
    673 A.2d 377
    Ann M. ANZALONE, Appellant, v. Peter L. ANZALONE, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1995.
    Filed March 25, 1996.

      Christopher C. Straub, Lancaster, for appellant.
    Karen L. Semmelman, York, for appellee.
    Before DEL SOLE, SAYLOR and HESTER, JJ.
   SAYLOR, Judge:

This is an appeal by Mother, Ann Anzalone, from an order of the Court of Common Pleas of York County requiring Father, Peter Anzalone, to pay $215 per week for the support of his three children, $10 per week on account of arrears, and $36 per week for his children’s tuition.

Peter Anzalone and Ann Anzalone were married on May 27, 1984 and are the parents of three children: Alexandra (born September 14, 1984); Elizabeth (born August 1, 1986); and Peter (born March 28, 1988). Apparently, the couple separated at some point during 1993 but continued to reside together in the marital residence until June 1994 when Husband moved to an apartment. The parties entered into a stipulation of parenting, adopted by the trial court on May 13, 1994, which awarded Mother and Father joint legal custody of their children. The stipulation established a custody schedule whereby the children spent approximately 60% of the time with Mother and 40% of the time with Father. Specifically, the children were with Father eleven out of every 28 days. The children attend a private Catholic school with a total tuition cost of $900 per year per child.

Father is employed by Red Lion Controls, Inc. as Vice President of Marketing and earns $124,530 per year, which consists of his gross salary and bonuses. Additionally, Father has the use of a company-owned vehicle for which the trial court imputed income of $250 per month. The trial court determined that Father has a net monthly income of $6,563.

Mother is 36 years old and received a high school diploma in 1976. Prior to the parties’ marriage, Mother was employed by National Products Corporation in New Jersey as a clerk in the accounts receivable department. Mother was paid minimum wage and her duties included general clerical work, typing and reception duties. Mother stopped working in 1984 after the birth of the parties’ first child and she has not been employed on a regular basis since that time. Mother currently volunteers approximately 15 to 25 hours per week at her children’s parochial school which offsets her portion of the children’s tuition. Father’s expert, Dr. Paul Anderson, prepared a vocational evaluation report which indicated that Mother has an annual earning capacity of $14,481 per year, with $1,063 monthly net income, as a general office clerk.

On June 11, 1993, Father filed a complaint in divorce. Subsequently, Mother filed a complaint for spousal and child support. Following a conference on July 14, 1994, a hearing officer of the Domestic Relations Section entered a temporary order which recommended that Father pay $351 per week for the support of his three children. Mother and Father both filed exceptions to the Master’s Report and Mother requested that a special hearing be scheduled before the trial court.

Following a hearing, the trial court entered an order requiring Father to pay $215 per week for the support of his three children. This order represented a deviation from the guidelines based upon the existing custody arrangement whereby Father has the children 40% of the time and Mother has the children 60% of the time. This appeal by Mother followed.

Mother raises the following issues on appeal:

1) Whether the trial court erred with regard to its determinations of the parties’ respective net incomes and reasonable needs.
2) Whether the trial court erred by deviating from the child support guidelines, thereby reducing the child support payment to Mother for the parties’ three children.

Mother first contends that the trial court erred in determining that Father’s federal income tax liability was $36,000 rather than $24,000, thus reducing his net income, and erred by assigning her an excessive earning capacity. We find no merit to either contention.

The hearing in this matter was held on November 21, 1994. At that time, the court determined that Father had a monthly net income of $6,563. The court apparently based this figure in part on Father’s projected 1994 federal income tax liability of $36,000, as determined by the hearing officer, which was predicated on his status as married, filing separately with only one exemption.

Although Mother’s attorney represented at the hearing that she would be willing to join Father in filing a joint return, there was no firm assurance that she would in fact do so. Additionally, we note from the record that Mother had previously refused to allow Father to claim the children as exemptions on his tax return. Thus, we find no error on the part of the trial court in its determination of Father’s potential tax liability based upon the facts as they existed at the time of the hearing.

Nor do we find that the earning capacity assigned to Mother was excessive. This figure of $14,481 was that of an entry level office clerk. In making this determination the court considered the relevant factors, including Mother’s age, education, and previous work experience as an office clerk, see, Klahold v. Kroh, 437 Pa.Super. 150, 157, 649 A.2d 701, 704 (1994), as well as the testimony of Father’s vocational expert.

In her second issue, Mother challenges the court’s decision to deviate from the support guidelines based upon the parties’ existing custody arrangement whereby Father has the children 40% of the time and Mother has the children 60% of the time. In doing so, the trial court stated that York County has historically recognized that in a traditional majority/minority physical custody arrangement the minority custodian has custody approximately 20% of the days of each year; “[w]hen there is an assertion by the minority physical custodian that he or she has custody of the child or children an unusual amount of time, that claim is typically measured against the foregoing standard.” Trial Court Opinion, p. 11. The downward deviation resulted in an almost 50% reduction in the amount of Father’s support obligation as calculated by reference to the guidelines.

In considering a parent’s claim that he or she is entitled to a downward deviation from the amount of support which would otherwise be payable under the guidelines, certain principles are applicable. First, the Uniform Support Guidelines were intended to provide minor children with the same proportion of parental income they would have received if the parents lived together. The appropriate amount of support is to be based upon the reasonable needs of the child and the ability of the obligor to provide support. The guidelines create a rebut-table presumption that the amount of support determined from the guidelines is the correct amount of support to be awarded. Pa.R.C.P. No. 1910.16-1, Explanatory Comments A and B; Pa.R.C.P. No. 1910.16-l(b). Second, while deviation from the amount of support determined by the guidelines is permitted, the trial court must specify, in writing, the guideline amount of support and the reasons for, and findings of fact justifying, the amount of the deviation. Pa.R.C.P. No. 1910.16- 4(a). Third, in deciding whether to deviate from the amount of support determined by the guidelines, the trial court must consider the factors set forth in Pa.R.C.P. No. 1910.16- 4(b). Finally, the support guidelines contemplate that “the non-custodial parent has regular contact, including vacation time, with his or her children, and that he or she makes direct expenditures on behalf of the children. Thus, a noncustodial parent’s support obligation should be reduced only if that parent spends an unusual amount of time with the children.” Pa.R.C.P. No. 1910.16-5(m).

In this case, the trial court acknowledged the relevant provisions of the guidelines and then proceeded to a deviation based upon what it described as an offset method, by which it appears to have calculated each parent’s respective support obligation by reference to the percentage of time which each parent has custody of the children and “offset” one against the other. The trial court also stated that in order not to limit its inquiry to a purely mechanical or mathematical formula as instructed by Connor v. Connor, 434 Pa.Super. 288, 642 A.2d 1136 (1994), it had reviewed the parties’ expense information, “including various household expenses and needs as they provide for the children.” Nevertheless, it is very clear that the court’s order was predicated on the percentage of time which Father spends with his children. There is no finding in this record that the amount of time spent by Father with his children was so unusual as to justify a deviation from the guidelines. Many of the expenses cited by Father, as for example, suitable sleeping quarters for the children when in his custody, do not appear to be unusual and in any event would be necessarily incurred no matter what percentage of time Father had the children in his custody.

In Connor v. Connor, supra, the appellee/mother sought and was granted a downward deviation from the guidelines based on the fact that she had her children 27% of the time. On appeal, the Superior Court vacated the support order. Judge Del Sole, writing for the majority, explained the rationale for doing so:

The trial court in the case before us did not make a determination that appellee spends an unusual amount of time with the children but merely noted that appellant’s physical custody of the children is 73% and appellee’s is 27%, and that the order would be reduced accordingly. We are unconvinced by appellee’s argument that the amount of time that she has physical custody of the children is unusual or that she spends more money on them for food, transportation and extra-curricular activities. Expenses for food and shelter have already been factored into the support guidelines. The support guidelines also contemplate that the non-custodial parent has regular contact, including vacation time, with his or her children, and that direct expenditures on behalf of the children will be made.
The non-custodial parent’s support obligation should not be reduced absent a determination that the parent spends an unusual amount of time with the children or where unique financial needs can be demonstrated. The 1993 amendment to the support guidelines require[s] that any amount of support deviation from the amount determined by the guidelines be specified in writing, and the court must indicate the guideline amount of support and the reasons or findings of fact justifying the amount of the deviation. The trial court’s meager explanation does not justify a 27% reduction of the appellee’s child support obligation. The only discernable reason for the arbitrary 27% reduction from the guideline payment amount is that the appellee has physical custody of the children 27% of the time.

Connor v. Connor, 434 Pa.Super. at 293-294, 642 A.2d at 1138-1139.

In Dalton v. Dalton, 409 Pa.Super. 258, 597 A.2d 1192 (1991) (plurality), the Superior Court affirmed the trial court’s determination that a custody arrangement whereby Father spends approximately 42% of the time with his children was not so unusual as to warrant reduction in the guideline amount of child support.

Thus, deviation from the guidelines based upon a prevailing custody arrangement is appropriate only if the parent seeking a reduction spends an unusual amount of time with the children. Pa.R.C.P. No. 1910.16-5(m). Such a determination requires specific factual findings regarding the amount of time actually spent with the children on a regular basis, whether that amount of time is “unusual,” and whether additional significant expenses are incurred as a result of the custody arrangement, with due regard for the fact that the guidelines contemplate that the non-custodial parent will make direct expenditures on behalf of the children in addition to the amount paid as support under the guidelines. An arbitrary mathematical formula will not serve to supplant such an analysis. The trier of fact must keep firmly in mind the ultimate goal of entering a final order of support which will best serve the needs and interests of the dependent children. Finally, a parent should not be allowed to use the amount of time which he or she spends with the children as a method of reducing his or her support obligation at the expense of the children: “[A] parent’s support obligation as determined by the guidelines will not be reduced by allocating the time that each parent spends with the children as this is a misapplication of the guidelines.” Connor v. Connor, supra, 434 Pa.Super. at 294, 642 A.2d at 1139.

Having concluded that a deviation is not supported on this record, we vacate the order and remand for a determination of Father’s support obligation consistent with this opinion. Jurisdiction is relinquished.

      . Mother subsequently withdrew her request for spousal support and elected to pursue a claim for alimony pendente lite.