author: McEWEN, Judge:

text:
    472 A.2d 619
    In re Appeal of AFFECTED AND AGGRIEVED RESIDENTS FROM the ADVERSE ACTION OF the SUPERVISORS OF WHITPAIN TOWNSHIP. Appeal of R. & R. COMPANY.
    Superior Court of Pennsylvania.
    Argued June 15, 1983.
    Filed Feb. 3, 1984.

      John P. Knox, Ambler, for appellant.
    William W. Spalding, Philadelphia, for appellees.
    Before CERCONE, President Judge, and McEWEN and MONTEMURO, JJ.
   McEWEN, Judge:

This is an appeal from an order of the Court of Common Pleas of Montgomery County which denied a petition filed by appellant pursuant to Section 2503(9) of the Judicial Code, 42 Pa.C.S.A. § 2503(9), seeking an award of reasonable counsel fees. Appellant, the owner of a tract of land in Whitpain Township, sought to recover the amount of counsel fees expended in appeal proceedings undertaken by certain residents of Whitpain Township challenging the rezoning of land owned by appellant. The distinguished Judge Anthony Scirica found that appellant had failed to establish the statutory requirements for entitlement to counsel fees and, thus, denied the petition. Appellant argues that the appeals from the decision of the Board of Supervisors which were undertaken by the residents were so capricious that the hearing judge erred when he concluded that the residents’ conduct was not “arbitrary, vexatious or in bad faith”, as required by Section 2503(9) of the Judicial Code, 42 Pa.C.S. § 2503(9). We affirm.

Appellant filed an application on January 28, 1980, with the Whitpain Township Board of Supervisors to rezone 59.477 acres of land from a residential district to a limited industrial district. The Board of Whitpain Township Supervisors conducted five public hearings upon the zoning application and rezoned the tract of land to a limited industrial district on August 1, 1980. The residents initiated an appeal on August 29, 1980, pursuant to Section 1007 of the Pennsylvania Municipalities Planning Code, to the Whitpain Township Zoning Hearing Board challenging the zoning as “spot zoning”. The residents also filed an appeal to the Common Pleas Court pursuant to Section 1003 of the Pennsylvania Municipalities Planning Code, in which they alleged defects in the process of the rezoning ordinance. Appellant secured the entry of a rule upon the residents on September 30, 1980, to show cause why the court should not require the residents to post bond as a condition to continuing the proceedings before the Zoning Hearing Board as well as before the court, pursuant to Sections 916 and 1008(4) of the Municipalities Planning Code, 53 P.S. §§ 10916, 11008(4). The court, pursuant to the statutory mandate that a hearing be held to determine if the filing of the appeal was frivolous and for the purpose of delay, heard evidence on November 17, 1980 regarding the grounds for both appeals as well as on the question of damages. See Leonard v. Zoning Hearing Board of Cheltenham Township, 72 Pa.Cmwlth. 237, 457 A.2d 132 (1983). The court concluded (1) that the appeals of the residents to the zoning board and to the Common Pleas Court were “frivolous and for the purpose of delay” and (2) directed the residents to post a bond in the amount of $98,000 per month for six months or suffer dismissal with prejudice. The residents failed to comply with the direction of the court to post bond and the court, on January 7, 1981, dismissed both appeals with prejudice. The residents appealed to the Commonwealth Court on January 23, 1981, from the order dismissing their appeals with prejudice. While that appeal was pending in the Commonwealth Court, appellant proceeded on February 11, 1981, under Section 2503(9) of the Judicial Code, 42 Pa.C.S. § 2503(9), to petition the court to order the residents to reimburse appellant “for all counsel fees expended to date as well as such counsel fees as would be incurred.” The Common Pleas Court conducted a hearing upon the petition on June 8, 1981, but reserved decision on the matter. The Commonwealth Court, on August 17, 1981, 61 Pa.Cmwlth. 305, 433 A.2d 630, affirmed the order of the Common Pleas Court which had dismissed the appeals of the residents by reason of their failure to post bond. The Common Pleas Court by order of September 28, 1981, denied the petition of appellant seeking counsel fees. It is from that order of denial that the instant appeal has been taken.

Appellees contend that the Court of Common Pleas was without jurisdiction to entertain the petition for counsel fees filed by appellant as a result of the appeal taken to the Commonwealth Court on January 23, 1981. We are constrained to agree.

“The general rule, and time-honored maxim, is that after an appeal has been taken the lower court may no longer proceed further in the matter. Pa.R.A.P. 1701(a).” Grove v. Zoning Hearing Board of Thornbury Township, 40 Pa.Cmwlth. 47, 50, 397 A.2d 22, 24 (1979). Accord School District of Pittsburgh v. Rankin, 55 Pa.Cmwlth. 371, 373, 423 A.2d 1087, 1088 (1980); Marlowe v. Zoning Hearing Board of Haverford, 52 Pa.Cmwlth. 224, 227, 415 A.2d 946, 948 (1980). At all times relevant to the instant proceedings, Pa.R.A.P. 1701 provided, inter alia:

RULE 1701. Effect of Appeal Generally
(a) General rule Except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter.
(b) Authority of lower court or agency after appeal. After an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may:
(1) Take such action as may be necessary to preserve the status quo, correct formal errors in papers relating to the matter, cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceeding.
(c) Limited to matters in dispute. Where only a particular item, claim or assessment adjudged in the matter is involved in an appeal, or in a petition for review proceeding relating to a quasijudicial order, the appeal or petition for review proceeding shall operate to prevent the lower court or other government unit from proceeding further with only such item, claim or assessment, unless otherwise ordered by the lower court or other government unit or by the appellate court or a judge thereof as necessary to preserve the rights of the appellant.

The petition for counsel fees filed by appellant averred that appellees were liable for reasonable counsel fees incurred by appellant on the grounds that the appeals filed by appellees were “arbitrary, vexatious or in bad faith”. This issue was not ancillary to the matter then on appeal before the Commonwealth Court, namely, whether the appeals undertaken by appellees were “frivolous and for the purpose of delay.” The Common Pleas Court was, therefore, without jurisdiction to entertain the petition. However, the Commonwealth Court affirmed the order which dismissed the appeals filed by the residents prior to the entry of the order presently before us. We, therefore, in the interests of judicial economy will address the merits of the arguments raised by appellant.

We are of a mind that the trial court correctly ruled upon the request for counsel fees when it denied the petition filed by appellant. Section 2503 of the Judicial Code, 42 Pa.C.S. § 2503, provides in relevant part:

Section 2503. Right of participants to receive counsel fees
The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
(1-8) ...
(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith. (emphasis supplied).

Appellant contends that the finding of the trial court that the appeals undertaken from the decision of the Board of Supervisors were “frivolous and for the purpose of delay,” pursuant to Sections 916 and 1008(4) of the Municipalities Planning Code, compels the conclusion that the conduct of appellees in pursuing the appeals was “arbitrary, vexatious or in bad faith.” We disagree.

The court is empowered under the relevant provisions of the Municipalities Planning Code to order that a bond be posted if the appeal is found to be “frivolous and for the purposes of delay.” An appeal is frivolous if “ ‘the plaintiffs realistic chances of ultimate success are slight’ ”. Appeal of Langmaid Lane Home Owners Association, 77 Pa.Cmwlth. 53, 60, 465 A.2d 72, 75 (1983) quoting Clark v. Zimmerman, 394 F.Supp. 1166, 1178 (M.D.Pa.1975). Accord: Collis v. Zoning Hearing Board of the City of Wilkes-Barre, 77 Pa.Cmwlth. 4, 10, 465 A.2d 53, 57 (1983). Section 2503(9), however, authorizes the court to award reasonable counsel fees as part of the taxable costs of the matter only upon a finding that the conduct of the party in commencing or proceeding in the matter was “arbitrary, vexatious or in bad faith.” Arbitrary has been defined as “ ‘based on random or convenient selection or chance rather than on reason or nature.’ ” In Re Estate of Roos, 305 Pa.Super. 86, 94 n. 2, 451 A.2d 255, 259 n. 2, (1982) quoting Webster’s Third New International Dictionary, 1976. Vexatious has been defined as “ ‘instituted without sufficient grounds and serving only to cause annoyance’ ”. In Re Estate of Roos, supra, 305 Pa.Superior Ct. at 94 n. 2, 451 A.2d at 259 n. 2 quoting Santoro v. City of Philadelphia, 59 Pa.Cmwlth. 114, 122, 429 A.2d 113, 117 (1981) (emphasis supplied). “Bad faith, as that term has been defined is ‘fraud, dishonesty, or corruption.’ ” In Re Estate of Roos, supra, 305 Pa.Superior Ct. at 94 n. 2, 451 A.2d at 259 n. 2 quoting Frick v. McClelland, 384 Pa. 597, 600, 122 A.2d 43, 45 (1956). As a finding that an appeal is “frivolous” for purposes of the bond requirements of the Municipalities Planning Code does not necessarily entail a finding that the conduct of a party in pursuing a frivolous appeal is arbitrary, vexatious or in bad faith, the hearing court correctly rejected this assertion of appellant.

Our review of the record discloses that appellees called as a witness at the hearings before the Board of Supervisors a land use planning expert who testified that the rezoning of the property owned by appellant was spot zoning. In addition, both the Montgomery County Planning Commission and the Township Planning Commission opposed the subdivision proposal which was adopted by the Whitpain Township Board of Supervisors. As a result, there was certainly a sufficient evidentiary basis for the finding of the hearing court that the conduct of appellees in pursuing appeals to the Zoning Hearing Board and the Court of Common Pleas was not arbitrary, vexatious or in bad faith.

Order affirmed.

      . Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11007.

      . Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11003.

      . Section 916 of the Municipalities Planning Code provides:
      § 10916. Stay of proceedings
      Upon filing of any proceeding referred to in section 914 and during its pendency before the board all land development pursuant to any challenged ordinance, order or approval of the zoning officer or of any agency or body, and all official action thereunder shall be stayed unless the zoning officer or any other appropriate agency or body certifies to the board facts indicating that such stay would cause imminent peril to life or property, in which case the development or official action shall not be stayed, otherwise than by a restraining order, which may be granted by the board or by the court having jurisdiction of zoning appeals on petition after notice to the zoning officer or other appropriate agency or body. When an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the board. After the petition is presented the court shall hold a hearing to determine if the filing of the appeal is frivolous and is for the purpose of delay. At the hearing evidence may be presented on the merits of the case. After consideration of all evidence presented, if the court determines that the appeal is frivolous and is for the purpose of delay it shall grant the petition. The right to petition the court to order the appellants to post bond may be waived by the appellee but such waiver may be revoked by him if an appeal is taken from a final decision of the court. The question whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court.

      . Section 1008(4) of the Municipalities Planning Code provides:
      11008. Appeals to court; commencement; stay of proceedings
      (4) The filing of an appeal in court under this section, shall not stay the action appealed from but the appellants may petition the court having jurisdiction of zoning appeals for a stay. If the appellants are persons who are seeking to prevent a use or development of the land of another, whether or not a stay is sought by them, the landowner whose use or development is in question may petition the court to order the appellants to post bond as a condition to proceeding with the appeal. After the petition is presented the court shall hold a hearing to determine if the filing of the appeal is frivolous and is for the purpose of delay. At the hearing evidence may be presented on the merits of the case. After consideration of all evidence presented, if the court determines that the appeal is frivolous and is for the purpose of delay it shall grant the petition. The right to petition the court to order the appellants to post bond may be waived by the appellee but such waiver may be revoked by him if an appeal is taken from a final decision of the court. The question of the amount of the bond shall be within the sound discretion of the court.

      . It should be noted that we here proceed to a decision upon the merits even though the hearing court had been divested of jurisdiction to entertain the petition for counsel fees. See Pa.R.A.P. 1701. We emphasize that we do so only under the unique circumstances of this case.

      . 53 P.S. §§ 11008(4), 10916.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    472 A.2d 624
    In re ADOPTION OF SABRINA and Joshua and Jacob. Appeal of V.W.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1983.
    Filed Feb. 3, 1984.
    Petition for Allowance of Appeal Denied Oct. 15, 1984.

      Ruth Duncan O’Brien, Carlisle, for appellant.
    Barbara J. Seras, Carlisle, for appellees.
    Ruby D. Weeks, Carlisle, for participating party.
    Before McEWEN, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Appellant V.W., the mother of three minor children, appeals from the order of April 27, 1983 involuntarily terminating her parental rights to these children. We affirm.

On March 25, 1982 Cumberland County Children and Youth Services (CYS) filed petitions to involuntarily terminate appellant’s parental rights in her two oldest children, Sabrina and Joshua. A subsequent termination petition was filed regarding the youngest child, Jacob, on May 12, 1982. Following consolidation and the initial day of hearings, appellant signed a voluntary relinquishment of parental rights and a colloquy was held. A few days later, appellant attempted to withdraw her voluntary relinquishment and the involuntary termination hearing was completed and followed by the order terminating her parental rights.

Appellant is the mother of the three children: Sabrina, born 2/13/78, Joshua born 6/2/79 and Jacob born 4/8/81. Sabrina and Joshua were voluntarily placed in foster care by appellant and adjudicated dependent in April of 1978 and June of 1979, respectively. Jacob was placed in foster care and adjudicated dependent upon appellant’s incarceration in June of 1981. All three children have remained in foster care since their initial placement.

Appellant, born June 25, 1958, is of limited intelligence, with a reading and writing level of second grade. She attended special education classes until the twelfth grade. Following the birth of Sabrina, appellant resided with her maternal grandmother, who took primary responsibility for. Sabrina’s care. Upon the grandmother’s involuntary psychiatric commitment in April of 1978, appellant requested Sabrina be placed in foster care by CYS. Appellant stated at that time that she was not capable of caring for Sabrina by herself.

Joshua was voluntarily placed in foster care directly after his release from the hospital following birth because of appellant’s lack of essential items necessary for his care. Appellant maintained visitation with both Sabrina and Joshua until her incarceration in June of 1981. She also entered into casework service plans with CYS to gain those parenting skills necessary for obtaining custody of the children. Three goals were established: (1) obtaining suitable housing, (2) obtaining employment, and (3) attendance at parenting classes.

Jacob was subsequently born in April of 1981 with congenital syphilis, a seizure disorder and irregular EEG. He requires regular administration of medication to control the seizures and careful monitoring of his physical development to ensure proper growth. Appellant cared for Jacob by herself until her incarceration in June of 1981.

In order to assist appellant to reach her goal of obtaining custody of the children, various services were provided, prior to her June 1981 incarceration, including homemakers services, enrollment in a local infant development program, visiting nurse care, employment counseling and mental health counseling. Appellant has also received the assistance of mental health and alcohol rehabilitation services.

Appellant’s personal history indicates significant problems with alcohol abuse. She has voluntarily admitted herself on several occasions for treatment. This abuse has contributed to her numerous arrests and subsequent periods of incarceration, in the latter part of 1980 and again from June of 1981 through the time of the order appealed from in the instant case. The record also indicates that while incarcerated, appellant has been denied parole for numerous prison violations, many involving violence.

In all proceedings to involuntarily terminate parental rights, petitioner must prove the statutory elements by at least clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re T.R., 502 Pa. 165, 465 A.2d 642 (1983). The statutory bases for termination in the instant case, as set forth in the petitions, were 23 Pa.C.S. § 2511(a)(1), (2) and (5), as to Sabrina and Joshua and as to Jacob, § 2511(a)(2) and (5) which state:

§ 2511. Grounds for involuntary termination
(a) General rule.' — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

Because of the importance placed on the family, the Commonwealth may disrupt the parent-child relationship only upon a clear showing of necessity; moreover, even if removal is necessary to protect the child, every effort should be made to reunite the family. In re Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976), appeal dismissed, U.S. cert. denied, 429 U.S. 1032, 97 S.Ct. 722, 50 L.Ed.2d 743 (1977). All circumstances must be considered when analyzing a parent’s performance of parental obligations in a proceeding for termination of parental rights; the parent’s performance must be measured in light of what would be expected of an individual in circumstances which the parent under examination finds herself. In re Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981).

As stated in In re Burns, 474 Pa. 615, 624-25, 379 A.2d 535, 540 (1977):

There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this Court has held that the parental obligation is a positive duty which requires affirmative performance.
This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.
Because a child needs more than a benefactor, parental duty requires that a parent “exert himself to take and maintain a place of importance in the child’s life.”

(citations omitted).

A parent whose child has been placed in foster care has an affirmative duty to work towards the return of the child, but even if there has been a long separation occasioned by parental neglect or incapacity, termination of parental rights cannot be ordered if there is a reasonable possibility that the causes and conditions which have led to the separation can be remedied and the family restored. In re Interest of C.M.E., 301 Pa.Super. 579, 448 A.2d 59 (1982).

On the other hand, although a parent may fulfill his or her parental duties and provide for the child by making suitable arrangements for the child’s temporary care or by allowing others to provide essential parental services during a period of crisis, extended relegation of the child to the care of others as a result of parental incapacity is relevant in determining whether a child has been without essential parental care or control. In re D.K.W., 490 Pa. 134, 415 A.2d 69 (1980).

Appellant argues that the evidence was insufficient to support the termination order. We disagree. We note initially our disapproval of the trial court’s failure to specify upon which ground appellant’s rights were terminated as to each of the three children. However, our review of the record makes clear that sufficient evidence was presented to support termination of appellant’s parental rights to all three children based on 23 Pa.C.S. § 2511(a)(5). See In re Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975) (reviewing court not precluded from considering statutory provision regarding involuntary termination of parental rights not considered by trial court and sustaining decree); see also Lambert v. Pittsburgh Bridge and Iron Works, 227 Pa.Super. 50, 323 A.2d 107 (1974), aff'd 463 Pa. 237, 344 A.2d 810 (1975) (Superior Court may affirm judgment of trial court where correct on any legal ground or theory disclosed by record, regardless of reason or theory adopted by trial court).

The evidence reveals that prior to her most recent incarceration, appellant had failed to secure adequate housing for any extended period of time. Although suitable quarters were secured in September of 1978, appellant was asked to leave that residence in March of 1979 for non-payment of rent. Since that time, appellant has been evicted from a residence hotel for hosting loud parties and physically and verbally abusing other residents and has been in and out of various alcohol rehabilitation centers.

Appellant has been employed once since 1978, which employment was terminated after a few weeks because of her extensive absenteeism. She joined the Job Corps in Pittsburgh in November of 1979, but without success. Appellant then returned to Carlisle in May of 1980. Soon afterward, appellant failed to attend a job interview arranged by one of her CYS caseworkers.

The testimony of the witnesses for CYS made clear that even when taking into consideration appellant’s limited intellectual capabilities, she has refused to cooperate so as to attain those skills and stability in her personal affairs necessary for the placement of the children in her care. Appellant’s performance was determined to be less than she was capable of producing. She has made no effort to improve her skills or reform her bad habits.

Her attitude and conduct demonstrate a continuing lack of care and concern toward her children, as evidenced by her visits with the children. During the visits, appellant demonstrated little affection for or ability to communicate with them. She would merely be present in the same room with the children and only infrequently hold or even touch them without the coaxing of the caseworkers. When Sabrina in particular would become fearful of appellant and cry, appellant would either return the child to the caseworker or walk out.

As to Jacob, appellant failed to make any significant effort to understand his medical needs and to provide for them. She tended to ignore Jacob while he was in her custody and appeared to lack even the most basic of parenting skills, such as feeding. Also, the trial court concluded that appellant did not have any strong emotional ties with her children, based on the testimony of Barbara Eubanks, who provided homemakers services to appellant, and the testimony of various caseworkers from CYS.

Concerning section 2511(a)(5), from the time of her June 1981 incarceration, appellant made no efforts to either contact the children or CYS concerning the children’s well-being nor prison authorities concerning visitation. Appellant also had no communication during this period with the children in the form of letters, presents or money, until after the initiation of the instant proceedings in March of 1982.

The law is clear that a parent’s absence, and/or failure to support a child due to incarceration is not conclusive on the issue of whether that parent has abandoned the child. In re Adoption of McCray, supra. However, a parent’s responsibilities are not tolled during his or her incarceration; rather we must inquire whether the parent utilized those resources available while in prison in continuing a close relationship with the child. Where the parent does not exercise reasonable firmness in declining to yield to obstacles, that parent’s other rights may be forfeited. Id. Therefore, although parental rights cannot be terminated based solely on the fact that a parent is incarcerated, that parent continues to have an affirmative duty to maintain her relationship with her children.

Appellant cites In re Adoption of M.T.T., 467 Pa. 88, 354 A.2d 564 (1976), where involuntary termination of an incarcerated parent’s parental rights was denied. M.T.T. is distinguishable from the instant case, in that in M.T.T., the incarcerated parent twice contacted the children’s services agency and contacted his mother in attempts to maintain a parental relationship with his son. In the instant case, nothing in the record demonstrates that appellant utilized any resources to take affirmative action to fulfill her parental duties. See In re Adoption of Infant Male M., 485 Pa. 77, 401 A.2d 301 (1979).

In short, appellant has failed to remedy those conditions which had caused the children’s initial placement in foster care, despite the various and substantial resources provided to her. She has failed to take advantage of those opportunities available to her to assist in her parental education and personal counseling. We agree with the trial court that appellant cannot cope with the responsibilities of raising her children now nor will she be so able in the future.

Parental rights may not be preserved by waiting for some more suitable financial circumstance or convenient time for the performance of parental duties and responsibilities. In re Smith’s Adoption, 412 Pa. 501, 194 A.2d 919 (1963). Parental duty requires that the parent not yield to every problem, but must act affirmatively, with good faith interest and effort, to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances. In re Burns, supra. This, appellant has not done.

As stated by the trial court:

Respondent’s behavior is devoid of any evidence whatsoever that she has made even a minimal effort to remedy those problems which occasioned the children’s removal. Numerous caseworkers have attempted to teach respondent the most basic parenting skills, all to no avail. Respondent’s failure to improve her skills, which we believe is occasioned by her refusal, not her inability, to learn, has had a detrimental effect on the children, most notably Jacob. The children have formed no emotional bond with their mother nor is that likely to occur, given respondent’s inability to show any affection for them. Moreover, respondent’s past history blatantly demonstrates her refusal to take advantage of the aid given to her to locate employment and housing and even to be released from prison. A thorough examination of the record reveals to us that respondent is unwilling to change her life style, either now or at any point in the future.
Opinion of the Trial Court at p. 16.

Finally, we note that the testimony reveals that appellant’s inability to perform her parental duties has had a detrimental effect on the children. Her relationship with Sabrina has been emotionally difficult for the child. As to Joshua and Jacob, they have little comprehension that appellant is their mother, based on appellant’s lack of contact and failure to express any significant parental love or concern. Jacob is particularly vulnerable to appellant’s parental deficiencies because of his special medical and developmental needs.

In summary, the evidence presented adequately proved that for a period in excess of six months, appellant has made no progress in resolving the conditions which led to the initial placement of the children in foster care. Appellant has not shown any change in her abilities to care for the children since her first contact with CYS in 1978, nor has she availed herself of any services available to her during her incarceration. Although appellant has expressed a desire to keep her children, more is required in light of the conclusive evidence presented in this case of her inability and unwillingness to care for these children and the remedial assistance rendered appellant by the various agencies.

The order of April 27, 1983 is affirmed.

      . All three children were represented by counsel during the proceedings pursuant to the Act of October 15, 1980, P.L. 934, No. 163, § 1, 23 Pa.C.S. § 2313 (since amended by Act of June 23, 1982, P.L. 617, No. 174, § 2 eff. in 60 days).

      . The trial court did not finally determine the voluntary relinquishment issue, but based its decision on the involuntary termination petitions. Because the trial court did not base its decision on the voluntary relinquishment, we do not speak to that issue on this appeal.

      . All three were born out of wedlock; no paternity is listed on two of the three birth certificates. As to the third, the alleged father has renounced all rights to the child.

      . Several of appellant’s arrests and convictions were for assault.

      . Although unemployed for the majority of time since 1978, appellant was eligible for and received rent assistance from the Cumberland County Redevelopment and Housing Authority.

      . The testimony of an employee of the correctional institution where appellant was incarcerated stated that nothing in the institution’s administrative directives would have barred appellant’s visitation with her children at the institution.


author: HOFFMAN, Judge:

text:
    472 A.2d 630
    COMMONWEALTH of Pennsylvania v. David Lee McCLAIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 12, 1983.
    Filed Feb. 3, 1984.
    Petition for Allowance of Appeal Denied May 8, 1984.

      Joann Selleck, Assistant Public Defender, West Chester, for appellant.
    James R. Freeman, District Attorney, West Chester, for Commonwealth, appellee.
    Before SPAETH, President Judge, and POPOVICH, and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in (1) denying appellant’s motion to dismiss under Pa.R.Crim.P. 1100; (2) refusing to grant appellant’s motion for a mistrial; and (3) admitting into evidence photographs of the victim. Finding all of appellant’s claims without merit, we affirm the judgment of sentence.

On December 3, 1980, following a jury trial, appellant was found guilty of criminal attempt — rape, robbery, aggravated assault, burglary, simple assault, and indecent assault. Appellant’s timely motions for a new trial and in arrest of judgment were denied. On May 11, 1982, appellant received an aggregate sentence of ten-to-twenty-five years imprisonment on all charges. Pursuant to the timely filing of a motion for reconsideration of sentence, the sen-tenting court vacated appellant’s sentence and ordered a neurologic and psychiatric evaluation of appellant. On December 22, 1982, the original sentence of ten-to-twenty-five years imprisonment was reimposed. This appeal followed.

Appellant alleges first that the lower court erred in denying his petition for a rule 1100 discharge. Specifically, appellant contends that the trial court erred in computing the 180-day period from the filing of the second complaint, rather than from the filing of the first. It is well settled that the 180-day period shall start running from the filing of the second complaint only if the following two-pronged test is satisfied: (1) the first complaint was properly dismissed; and (2) the record does not reflect an attempt by the prosecution to circumvent the requirements of Pa.R. Crim.P. 1100, Commonwealth v. Ardolino, 304 Pa.Superior Ct. 268, 450 A.2d 674 (1982); Commonwealth v. Sires, 284 Pa.Superior Ct. 50, 424 A.2d 1386 (1981); Commonwealth v. Navarro, 276 Pa.Superior Ct. 153, 419 A.2d 141 (1980), aff'd 499 Pa. 279, 453 A.2d 308, 309 (1982); Commonwealth v. Brocklehurst, 266 Pa.Superior Ct. 335, 404 A.2d 1317 (1979), aff'd 491 Pa. 151, 420 A.2d 385 (1980); Commonwealth v. Brennan, 264 Pa.Superior Ct. 206, 399 A.2d 739 (1979); Commonwealth v. Mumich, 239 Pa.Superior Ct. 209, 361 A.2d 359 (1976). While the second prong of the above test is clear, our Court, with regard to the first prong, has interpreted “ ‘[pjroper dismissal’ ... to mean that proceedings on the charges contained in the complaint were dismissed by a competent magisterial or judicial authority who committed no error of law in doing so. This would include, we think, dismissal for failure to make out a prima facie case.” Commonwealth v. Ardolino, supra 304 Pa.Superior Ct. at 276, 450 A.2d at 679, quoting Commonwealth v. Brennan, supra 264 Pa.Superior Ct. at 210, 399 A.2d at 741 (citations omitted). So viewed, the facts are as follows: In the late afternoon of July 3, 1979, the victim, a 68-year-old woman, was sexually assaulted, beaten, and robbed in the first floor vestibule of her apartment building. The attack was interrupted by the shouts of a second-floor neighbor, Thomas Eggers, who observed the assault and chased away the assailant. Officer Earl Galloway of the Oxford Borough Police Department was the investigating officer assigned to this case. At the time of his investigation, Officer Galloway had two months of police experience. In addition to interviewing the victim and obtaining a description of her attacker, Galloway spoke with the second-floor neighbor. Mr. Eggers identified the assailant as “McClain,” a young man who had attended school with his sister. On July 24, 1979, a photographic line-up was presented to the victim and she identified appellant as the man who attacked her. On August 1, 1979, pursuant to the filing of a criminal complaint, appellant was arrested. A preliminary hearing was twice continued to allow for an in-person line-up. However, at the physical line-up the victim was unable to make an identification. At the preliminary hearing on August 22, 1979, the Commonwealth failed to produce any witnesses. The explanation for this failure was provided by Officer Galloway who stated that both Mr. Eggers and the victim had changed their respective addresses and that he “was having difficulty contacting Mr. Eggers and getting the people together for the hearing and getting information together.” (N.T. November 24, 1980 at 52). Nevertheless, as the lower court observed, “[T]he whereabouts of both victim and eye witness [sic] were known to the Commonwealth but, by reason of investigative ineptitude or inertia, no case was presented to the District Justice.” (Lower Court Op. at 3-4). Consequently, the District Justice dismissed the complaint and discharged appellant. Nearly a year later, following appellant’s arrest on two other charges (unrelated to the instant ones), the original case was reopened. After further investigation, a second criminal complaint was filed on August 13, 1980, and appellant was bound over for trial. Appellant’s trial commenced on November 24, 1980 — approximately 103 days after the filing of the second complaint and approximately 480 days after the filing of the first.

We find the present situation analogous to the recent Pennsylvania Supreme Court cases of Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981) and Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978) (plurality opinion). Similar to the instant case, Genovese and Cartagena each involved a defendant who had been discharged following a preliminary hearing where all charges had been dismissed for lack of a prima facie case. As here, the defendants in Genovese and Cartagena were subsequently rearrested pursuant to the filing of a second complaint based on the original incident. Finding the dismissal proper and that no evidence existed of “an improper prosecutorial design to circumvent the mandate of Rule 1100,” Commonwealth v. Braithwaite, 253 Pa.Superior Ct. 447, 450, 385 A.2d 423, 425 (1978), the Court in Genovese and Cartagena held that the running of the rule 1100 period commenced with the filing of the second complaint. Here, the first complaint was properly dismissed when the Commonwealth failed to present a case at the preliminary hearing on August 22, 1979. Further, the record in the present case does not reflect an attempt by the Commonwealth to circumvent the mandate of rule 1100. While there certainly was a lack of action by the Commonwealth subsequent to the filing of the first complaint, the record clearly shows that this inactivity was not motivated by prosecutorial misconduct. As the lower court correctly noted, “[I]t can be said there was no conduct or motive of any kind.” (Lower Court Op. at 5). Thus, we find that the 180-day period under rule 1100 ran from the filing of the second complaint, and accordingly, we reject appellant’s first contention.

Appellant avers next that the lower court erred in denying his motion for a mistrial on the ground that the victim’s testimony, in which she twice referred to her assailant as “David McClain,” prejudiced appellant. Furthermore, appellant points out that during the pre-trial suppression hearing the Commonwealth and defense stipulated that the victim would not be asked to identify appellant in the courtroom. Where the Commonwealth promises not to use certain evidence at trial and then later attempts to introduce same, it is reversible error. Commonwealth v. Levene, 492 Pa. 287, 424 A.2d 865 (1980); Commonwealth v. Heacock, 467 Pa. 214, 355 A.2d 828 (1976). However,

[ejvery unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. [The remark must be] of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.

Commonwealth v. Whitman, 252 Pa.Superior Ct. 66, 77, 380 A.2d 1284, 1289 (1977), quoting Commonwealth v. Phillips, 183 Pa.Superior Ct. 377, 382, 132 A.2d 733, 736 (1957) (emphasis added). While testifying on direct examination, the victim twice used appellant’s name when describing the chronology of events during the attack. The first reference occurred after the prosecutor asked the victim, “And then what happened?” (N.T. November 25, 1980 at 197). The victim responded by stating, inter alia, “And at the time David McClain jumped up, grabbed the pocketbook and ran. (N.T. November 25, 1980 at 197). The second reference followed the question, “What happened then?” (N.T. November 25, 1980 at 201). Again the victim answered, “David McClain, he jumped off of me and grabbed my pocketbook and ran.” (N.T. November 25, 1980 at 201). After the first mention of appellant’s name by the victim, defense counsel objected, and, at a sidebar conference, moved for a mistrial. The lower court denied this motion for the reason that the victim “had not made an in court identification.” (N.T. November 25, 1980 at 200). Rather, the court held that the victim had merely “used a name.” (N.T. November 25, 1980 at 200). In addition, the court allowed the district attorney to clarify the victim’s references in the following manner:

Q: Now, ... listen to my questions very carefully, if you would.
You agree that you had never seen the person who attacked you before that day, don’t you? You never had seen him before that day?
A: That’s right.
Q: And that day you did not know what his name was at all?
A: That’s right.

(N.T. November 25, 1980 at 200-201). When the victim used appellant’s name for the second time, the prosecutor immediately asked, “I want to make sure that you had no idea who the person was that attacked you.” The victim responded, “That’s right.” (N.T. November 25, 1980 at 200). Furthermore, pursuant to defense counsel’s request, appellant’s name was stricken from the victim’s testimony and the following cautionary instruction was issued:

THE COURT: Ladies and Gentlemen, we instruct you, as it is a matter of law, that you will disregard [the victim’s] testimony, specifically twice as I recall it, in which she used the name David McClain. We grant that motion of the defense, which is properly made, because as you are aware, having heard that testimony, she did not identify the man who is in this Court as the defendant as her attacker. So you will disregard that. And I am striking from your consideration use of the name David McClain.

(N.T. November 25, 1980 at 229-230). Unlike Commonwealth v. Levene, supra, and Commonwealth v. Heacock, supra, the Commonwealth in the instant case did not contravene the terms of the pre-trial stipulation. No in-court identification by the victim was ever made and the victim’s references to “David McClain” were neither elicited by nor responsive to the prosecutor’s questions. Moreover, we find that the Commonwealth’s clarification of the victim’s testimony coupled with the prompt and thorough cautionary instruction given by the court, removed any possible prejudicial effect. Accordingly, we hold appellant’s second claim meritless.

Appellant complains finally that it was error for the trial court to admit into evidence two photographs of the victim’s beaten face. In Pennsylvania, the law is clear that the “admission of photographs in a criminal case is largely within the sound discretion of the trial court, and its rulings will not be overruled on appeal unless there is an abuse of that discretion.” Commonwealth v. Brown, 273 Pa.Superior Ct. 22, 24, 416 A.2d 1069, 1070 (1979); see also Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974). Here, the Commonwealth sought the admission into evidence of two color photographs of the victim’s face which were taken while the victim was hospitalized shortly after the attack. The lower court found that the photographs (1) were “necessary for the Commonwealth to prove an attempt to cause serious bodily injury or the occurrence of serious bodily injury under circumstances manifesting an extreme indifference to the value of human life”; and (2) would “better convey to the Jury the injuries received than the clinical comments of an Emergency Room doctor.” (Lower Court Op. at 9). We find this issue to be controlled by the Pennsylvania Supreme Court’s recent decision in Commonwealth v. McCutchen, 499 Pa. 597, 454 A.2d 547 (1982). In that case, the Supreme Court ruled that photographic slides showing the injuries and bruises suffered by the six-year-old victim, including tears in the anal area, were admissible. While in McCutchen the prosecution was for first-degree murder, the court held the slides admissible because their purpose was to establish sodomy as a motive for the killing, and to show the brutality of the beating, thereby permitting the inference of the defendant’s intent to kill. Accordingly, we cannot say that, in the present case, the trial court abused its discretion in allowing the photographs to be introduced, inter alia, for the purpose of proving the essential elements of the aggravated assault charge. For the foregoing reasons, we hold appellant’s claims meritless, and thus affirm the judgment sentence.

Affirmed.

SPAETH, President Judge, concurs in the result.

      . Insofar as rule 1100 is concerned, the Pennsylvania Supreme Court has noted "that Rule 1100 serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society." Commonwealth v. Brocklehurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980).

      . It is well established that an accused may be rearrested and prosecuted despite the dismissal of charges at the first preliminary hearing. Commonwealth v. Weitkamp, 255 Pa.Superior Ct. 305, 386 A.2d 1014 (1978); Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975); Riggins Case, 435 Pa. 321, 254 A.2d 616 (1969).

      . Appellant’s reliance on Commonwealth v. Whitaker, 467 Pa. 436, 359 A.2d 174 (1976) is misplaced. The rationale of Whitaker has been limited to those cases "where there is an obvious attempt to evade the requirements of Rule 1100(c) through the use of the nolle prosecui procedure.” Commonwealth v. Genovese, supra 493 Pa. at 71, 425 A.2d at 370, quoting Commonwealth v. Johnson, 487 Pa. 197, 204, 409 A.2d 308, 311 (1979).

      . Appellant also argues that the lower court erred in allowing the Commonwealth to use evidence of his prior convictions for impeachment purposes. However, this claim has been waived because appellant’s own trial counsel presented evidence of appellant’s prior criminal record as a matter of deliberate trial strategy. See Commonwealth v. Segers, 460 Pa. 149, 158 n. 3, 331 A.2d 462, 467 n. 3 (1975). On direct examination, appellant was questioned and testified as follows:
      Q: David, were you ever convicted of a crime?
      A: Yes.
      Q: What crime was that?
      A: Theft and Receiving Stolen Property.
      Q: And do you remember when?
      A: ’78.
      Q: Did you plead guilty to those crimes?
      A: Yes.
      (N.T. December 1, 1980 at 414). Accordingly, we hold that this issue has not been properly preserved.