author: POPOVICH, Judge: HUDOCK, Judge,

text:
    622 A.2d 388
    In re E.S.M. Appeal of GREGORY C. and Barbara A. Hutchins.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1992.
    Filed March 26, 1993.

      Gregory R. Reed, Harrisburg, for appellants.
    Before DEL SOLE, POPOVICH and HUDOCK, JJ.
   POPOVICH, Judge:

This is an appeal from the decree entered in the Court of Common Pleas of Dauphin County which denied Appellants’ petition to terminate the parental rights of Appellee, the natural father of E.S.M. Appellants, Gregory and Barbara Hutchins, wish to adopt E.S.M., and the child’s natural mother also desires the adoption to occur. Upon review of the record, we reverse the decision below and remand for entry of an order terminating Appellee’s parental rights.

Instantly, the court below found that Appellants failed to prove by clear and convincing evidence that Appellee demonstrated a settled intent to relinquish his parental claim. The court also found that Appellants failed to establish that Appellee neglected or failed to perform his parental duties under the circumstances. Herein, Appellants question those rulings, and we find that Appellants did prove by clear and convincing evidence that Appellee, in fact, failed to perform parental duties for a period of at least six months. Thus, his parental rights should have been terminated by the court below.

Turning to the facts of this case, the record reveals: During 1988, K.A.M., the child’s mother, and Appellee resided together as paramours in Phoenix, Arizona. K.A.M. became pregnant to Appellee during this time period. Appellee was aware that K.A.M. was pregnant. During her sixth or seventh month of pregnancy, K.A.M., without any warning to Appellee, left Arizona while Appellee was at work. K.A.M. did not notify Appellee of her future plans or whereabouts.

After leaving Arizona, K.A.M. initially resided with her sister in New Holland, Pennsylvania. Subsequently, she moved into the Women’s Shelter at the Bethesda Mission in Harrisburg, Pennsylvania. On March 11, 1989, K.A.M. gave birth to E.S.M. who was born with a bronchial infection. Appellant Barbara Hutchins, Director of the Children’s Ministries at the Bethesda Mission Women’s Shelter, offered to care for the baby in Appellants’ first floor apartment at the shelter until E.S.M. recovered from her infection. Appellant Barbara Hutchins made this offer because the upper floors of the Mission were drafty and unsuitable for a sickly child.

E.S.M. began living with Appellant Barbara A. Hutchins and her husband, Appellant Gregory Hutchins, at three weeks of age. Appellants obtained custody of E.S.M., at the request of K.A.M., on April 23, 1989. K.A.M., on May 8, 1989, signed a written consent to the adoption of E.S.M. by Appellants. On May 26, 1989, Appellants filed a report of intent to adopt E.S.M.

In June of 1989, K.A.M. traveled to Arizona and presented Appellee with a form for him to sign evincing his consent to the adoption. K.A.M. arrived at Appellee’s apartment when Appellee was leaving for work. The discussion of adoption was brief, and the papers were left with Appellee. The form was accompanied by a self-addressed envelope in order for the papers to be sent to Appellants’ counsel. However, the precise whereabouts of E.S.M., at this time, were not specifically disclosed to Appellee. After their brief encounter, K.A.M. did not inform Appellee of where she could be contacted. K.A.M. stayed for a while in Arizona with a cousin, then left for Minnesota for an undisclosed period and eventually moved back to Pennsylvania.

Appellee, a high school drop-out, took the papers to his sister, Ronnette Newsome, for her perusal. The papers were later misplaced by Ms. Newsome. However, prior to misplacing the papers, Ms. Newsome, in July of 1989, telephoned Appellants’ counsel regarding the details of the adoption. Shortly thereafter, Appellant Barbara Hutchins telephoned Ms. Newsome, to discuss the adoption and to ask her to give Appellee her telephone number. This message was not received by Appellee until two or three months later. Sometime in November of 1989, Appellant Barbara Hutchins again attempted to contact Appellee through Ms. Newsome. However, Ms. Newsome’s phone number was no longer in service. In March of 1990, Appellant Barbara Hutchins contacted Appellee’s other sister, Kimberly Barnes, since Appellee still had not contacted Appellants or their counsel about the adoption. Eventually, Ms. Barnes contacted Appellee and again Appellee was given Appellants’ telephone number. About the same time as Appellants call to Ms. Barnes, Appellants’ attorney wrote to Appellee and his parents concerning the adoption. On March 21, 1990, Appellee finally contacted Appellants in regard to the adoption. During this conversation, he informed Appellants that he had no desire to sign the adoption papers.

Sometime between Appellee’s phone call to Appellants and March 28, 1990, Appellee hired an attorney in Arizona. However, this attorney was subsequently disbarred, and Appellee contacted the Legal Aid Society in Arizona which in turn helped Appellee to contact the Legal Aid Society in Harrisburg. In the interim, Appellee and his family, upon the advice of counsel, sent three packages consisting of clothes, stuffed animals and cards to Appellants’ counsel for E.S.M. The three packages were postmarked June 19, 1990, July 20, 1990, and December 4, 1990. Those packages and Appellee’s lone telephone call to Appellants have been his only contact with his child, since he learned of her birth in June of 1989. Appellee presently resides with his paramour, Patricia Marie, and their two young sons in Phoenix, Arizona, while E.S.M. continues to reside with Appellants.

On August 6, 1991, Appellants, having been unsuccessful in obtaining Appellee’s co-operation, filed a petition to terminate involuntarily the parental rights of Appellee. On October 1, 1991, a hearing was held, at which testimony was given by K.A.M., Appellants, Appellee and Appellee’s mother. On January 31, 1992, the hearing court rendered a Decree Nisi denying the petition. The hearing court reasoned that Appellants had not proven by clear and convincing evidence that Appellee had evidenced a settled purpose of relinquishing parental claim to E.S.M. or refused or failed to perform parental duties as required by 23 Pa.C.S.A. § 2511(a)(1). Subsequently, Appellants filed exceptions, which were argued and denied. A final decree was entered on April 21,1992, and this appeal followed.

When reviewing a decision whether to terminate involuntarily parental rights, our inquiry is limited to whether the decision of the court below was supported by competent evidence. In re Adoption of J.J., 511 Pa. 590, 593-594, 515 A.2d 883, 885-886 (1986); In re Adoption of M.A.R., 405 Pa.Super. 131, 134-135, 591 A.2d 1133, 1135 (1991); In Interest of Coast, 385 Pa.Super. 450, 468-469, 561 A.2d 762, 771 (1989). Absent an abuse of discretion, an error of law or insufficient evidentiary support for the chancellor’s decision, the decree must stand. Adoption of M.A.R., 405 Pa.Super. at 134-135, 591 A.2d at 1135. Further, in a proceeding to terminate involuntarily a parent’s rights, the burden of proof is upon the party seeking termination to establish by “clear and convincing evidence” the existence of grounds for doing so. Adoption of J.J., 511 Pa. at 592-594, 515 A.2d at 885-886; In Interest of Coast, 385 Pa.Super. at 468, 561 A.2d at 771.

Involuntary termination of the rights of a parent is governed by 23 Pa.C.S.A § 2511, which, in pertinent part, states:

(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition is 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.
‡ ‡ $
(b) Other considerations. — The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

The statute does not require a showing of both an intention to relinquish parental control and a failure to perform parental duties. Baby Boy A. v. Catholic Social Services, 512 Pa. 517, 521-523, 517 A.2d 1244, 1246 (1986); In the Matter of the Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978).

It is important to note that the statutory six-month requirement is not mechanically applied, and parents who fail to meet their parental obligations for a six-month period do not automatically forfeit their parental rights. In re Adoption of Hamilton, 379 Pa.Super. 274, 280-281, 549 A.2d 1291, 1294 (1988); In re Adoption of Ostrowski, 324 Pa.Super. 216, 219, 471 A.2d 541, 543 (1984). Rather, the court must examine the individual circumstances of the case and any explanation offered by the parent to determine if that evidence, in light of the totality of the circumstances, clearly warrants involuntary termination of that parent’s rights. Adoption of Hamilton, 379 Pa.Super. at 280-281, 549 A.2d at 1294; Adoption of Ostrowski, 324 Pa.Super. at 219, 471 A.2d at 543. In making such a determination, the court must consider the barriers to exercising his or her parental rights which the parent faced in deciding whether that parent has abandoned the child. In re D.J.Y., 487 Pa. 125, 130-131, 408 A.2d 1387, 1390 (1979); Baby Boy A, 512 Pa. at 521-523, 517 A.2d at 1246; In re Baby Boy H., 401 Pa.Super. 530, 534-535, 585 A.2d 1054, 1056 (1991). To obtain benefit of this excuse, a parent must exhibit reasonable firmness in attempting to overcome the barriers or obstructive behavior of others; he or she must affirmatively demonstrate love, protection and concern for the child. Baby Boy A., 512 Pa. at 521-523, 517 A.2d at 1246; Baby Boy H., 401 Pa.Super. at 534-535, 585 A.2d at 1056.

In addition, the court must consider not only the events which transpired during the six-month period, but also those actions which the parent took to rehabilitate his or her parental status after the expiration of the time period. In re Adoption of Durham, 320 Pa.Super. 508, 516-517, 467 A.2d 828, 832-833 (1983); Adoption of Hamilton, 379 Pa.Super. at 280-281, 549 A.2d at 1294-1295. However, it is well established that once the six-month statutory period of abandonment has passed, mere renewal of interest and expression of desire for the return of a discarded child do not negate the abandonment. In re J.F., 487 Pa. 115, 124-125, 408 A.2d 1382, 1387 (1979); Baby Boy A., 512 Pa. at 521-523, 517 A.2d at 1246.

Finally, once the court has determined that the requirements for involuntary termination of parental rights pursuant to 23 Pa.C.S.A. § 2511(a) have been met, the court must' further inquire whether termination will clearly serve the “needs and welfare” of the child. 23 Pa.C.S.A. § 2511(b); Adoption of J.J., 511 Pa. at 606-607, 515 A.2d at 892; Adoption of Hamilton, 379 Pa.Super. at 280, 281, 549 A.2d at 1294, 1295. In answering that question, “it is the child’s welfare that is paramount.” Adoption of David C., 479 Pa. at 17, 387 A.2d at 812; Baby Boy A., 512 Pa. at 523-524, 517 A.2d at 1247; Adoption of Hamilton, 379 Pa.Super. at 280, 281, 549 A.2d at 1294. Applying the foregoing analysis to the facts sub judice, we rule that the lower court erred when it denied Appellants’ petition for the involuntary termination of Appellee’s parental rights.

First, we must decide whether the statutory requirements for termination in 23 Pa.C.S.A. § 2511(a)(1) have been satisfied. Adoption of Hamilton, at 280-281, 549 A.2d at 1294. The record reveals that Appellee was informed that he was the father of a baby girl in June of 1989. Yet, Appellee did not personally contact Appellants or their attorney concerning his daughter until March 21, 1990, almost nine months later, despite having the means to do so. The initial adoption papers which were given to Appellee in June of 1990, had Appellants’ attorney’s telephone number and address on them. In addition, Appellants attempted to contact Appellee through his sister, Ms. Newsome, who eventually gave Appellee the phone number of Appellants. Yet, Appellee did not respond until March of 1991, well after the six-month period had expired, and then only after additional inquiries by Appellants. Therefore, we find that Appellee “by conduct continuing for a period of at least six months ... has refused or failed to perform parental duties.” 23 Pa.C.S.A. § 2511(a)(1).

Having determined that the statutory requirements for termination have been satisfied, we must assess any explanation of extenuating circumstances offered by Appellee, including evaluation of barriers to parenthood placed in his way by K.A.M. and Appellants. Adoption of Hamilton, at 280-281, 549 A.2d at 1294. Appellee offers several explanations for his delay in exercising his parental rights. Appellee argues that K.A.M. and Appellants placed insurmountable barriers to the performance of parental duties in his path. The record does reveal that K.A.M. consistently neglected to inform Appellee of her and the baby’s whereabouts. In fact, it was not until approximately three months after the baby’s birth that K.A.M., in June of 1989, informed Appellee that he had a daughter. Although, Appellee admits that he knew K.A.M. and the baby were in Pennsylvania, he submits that he had no means by which to contact K.A.M. or to locate his daughter. Certainly, the distance alone between Appellee’s residence in Phoenix, Arizona, and Pennsylvania, was an obstacle for Appellee to overcome. In addition, Appellee’s financial status also made it more difficult for him to search for K.A.M. and his daughter, and to obtain legal assistance.

It is true that if the failure to perform parental duties is the result of obstructive tactics, such failure is excused. In re Adoption of Orwick, 464 Pa. 549, 555, 347 A.2d 677, 681 (1975); Baby Boy H., 401 Pa.Super. at 534-535, 585 A.2d at 1056. However, to obtain the benefit to that excuse, “a parent must exhibit reasonable firmness in attempting to overcome the obstructive behavior.” Baby Boy H., at 534-535, 585 A.2d at 1056. Thus, while those obstructive factors noted by Appellee certainly weigh in his favor, Appellee cannot avail himself of that excuse for the following reasons. It is undisputed that Appellee had the means to assert his parental rights in June of 1989, and failed to do so in even the smallest of ways until March 21, 1990. In June of 1989, Appellee was presented with a letter from Appellants’ attorney. Upon the letter was the attorney’s phone number and mailing address. The only effort to contact Appellants or their counsel via the information on this letter was made by Appellee’s sister, Ronnette Newsome, who telephoned Appellants’ counsel about the adoption in July of 1989. Appellee submits that his sister then lost the letter. However, he has offered no explanation why he never attempted to contact the attorney during the time period which he admittedly possessed the information. Moreover, loss of the letter does not explain why, after Ms. Newsome gave him Appellants’ telephone number in September or October of 1989, Appellee once again failed to contact Appellants. It is clear to this Court that Appellee failed to act promptly when advised of his child’s birth. The barriers were not so great as to prevent Appellee from at least showing concern for his child by inquiring about her well-being.

In fact, Appellee did not contact Appellants until March 21, 1990, and then only after Appellants called another of Appellee’s sisters, Kimberly Barnes, and requested that Ms. Barnes ask Appellee to call them. Certainly, his inattentiveness does not “affirmatively demonstrate love, protection and concern” for his child, and Appellee obviously did not “exert himself to take and maintain a place of importance in his child’s life.” Baby Boy A., 512 Pa. at 521-523, 517 A.2d at 1246. Rather, the record demonstrates that Appellee made little, if any, effort to locate or inquire about his daughter.

Our review of the record reveals that Appellee did not take an active role in attempting to form a parental relationship with his child. He simply did not “exhibit reasonable firmness in attempting to overcome the obstructive behavior.” Baby Boy H., 401 Pa.Super. at 534-535, 585 A.2d at 1056. Accordingly, we find that Appellee has not explained away his failure to assert his parental rights during the six-month statutory period. In so ruling, we recognize that Appellee faced obstacles which made it difficult for him to perform his parental duties. However, we find that Appellee personally made only a cursory effort to assume his parental position, i.e., one telephone call. In fact, those few steps that were taken towards finding his daughter were taken by his family, not Appellee. Had Appellee shown even the slightest interest in assuming his parental duties, i.e., timely inquiries about his child, the result herein might be different. We note that this is not a case where the mother of the child and others acted in such an obstructive manner that their actions negated the father’s failure to perform his parental duties. Instantly, Appellee could have inquired about his child and demonstrated concern for his child but failed to do so. Compare, Baby Boy H., at 534-535, 585 A.2d at 1056-1057 (father showed reasonable firmness in asserting parental rights in face of severe obstructive tactics of mother and social service agency).

Third, we must evaluate any “post-abandonment” contact between Appellee and his child. In other words, we must review those attempts made by Appellee to re-establish his parental rights after the expiration of the six-month period. Adoption of Hamilton, 379 Pa.Super. at 280-281, 549 A.2d at 1294. On March 21, 1990, well after the six-month period had expired, Appellee contacted Appellants concerning his child. During that conversation, Appellants informed Appellee that all further communications about his child should be referred to their attorney. Thereafter, Appellee and his family sent three packages of presents to the child on July 19, 1990, July 20, 1990, and December 4, 1990. Appellee also travelled across the nation to attend the involuntary termination proceeding on October 1, 1991. Significantly, between the last package he sent on December 4, 1990 and the hearing on October 1, 1991, Appellee has not attempted to contact or inquire about his child in any manner, nor has he offered any support, financial or otherwise.

Upon review, we cannot say that Appellee’s actions since March of 1990, rehabilitated his failure to perform parental duties. Three packages which were sent on the advice of counsel and one phone conversation with Appellants do not demonstrate an affirmative desire to assume a primary position in his daughter’s life. Further, merely preparing for and attending the involuntary termination proceeding does not vitiate his apparent lack of concern, especially when we consider that Appellee made no effort to contact his child or inquire about her after he sent the last package on December 4, 1990. See, In re Adoption of Y.S., 487 Pa. 99, 408 A.2d 1373 (1979) (termination order affirmed where parents did little more than prepare for hearing). Compare, Adoption of Stunkard, 380 Pa.Super. 107, 114-115, 551 A.2d 253, 257 (1988) (termination denied where father not only prepared for hearing but actively sought to assert his parental rights).

We certainly understand that distance and the lack of financial resources severely limit those actions which Appellee could take. However, a father cannot protect his parental rights by merely stating that he does not wish to have his parental rights terminated. A parent has an affirmative obligation to act in his child’s best interest. As we stated in Adoption of Hamilton, 379 Pa.Super. at 274, 549 A.2d at 1291,

To be legally significant the contact must be steady and consistent over a period of time, contribute to the psychological health of the child, and must demonstrate a serious intent on the part of the parent to recultivate a parent-child relationship and must also demonstrate a willingness and capacity to undertake the parental role.

Instantly, Appellee’s actions do not demonstrate a “willingness and capacity” to assume his parental duties. “[M]ere renewal of interest and expression of desire for the return of a discarded child do not negate the abandonment.... ” Baby Boy A., 512 Pa. at 523-524, 517 A.2d at 1247, quoting In re In the Matter of J.F., 487 Pa. 115, 124-125, 408 A.2d 1382, 1387 (1979). Although we recognize that Appellee has not “abandoned” his child in the traditional sense, he has legally abandoned his daughter by failing at least to attempt to establish a parental bond.

Finally, we must determine whether termination of Appellee’s parental rights will clearly serve to satisfy the needs and promote the welfare of this child. 23 Pa.C.S.A. § 2511(b); Adoption of Hamilton, 379 Pa.Super. at 280-283, 549 A.2d at 1294, 1295. We conclude that termination is in the child’s best interest. Appellant Barbara Hutchins is the Director of Children’s Ministries at Bethesda Mission, and, at the time of the hearing, her husband was a divinity student who anticipated graduating from the seminary in May of 1992. He also was a part-time employee of Bethesda Mission. Appellee’s daughter has resided with Appellants since she was three weeks old and for a period of more than three and one-half years. Since residing with Appellants, the child has grown into a “very bright, very healthy little girl.” N.T., p. 23. Appellants are providing for her needs and desire to continue in their parental capacity. Further, K.A.M. desires Appellants to adopt her child. On the other hand, Appellee is currently residing -with his paramour and their two children. He admits that he would have a difficult time financially supporting his paramour and three children. His mother testified that she and her husband are willing to help raise the children. Appellee does not have a high school diploma and, at the time of the hearing, was on probation for accessory to auto theft.

We find that the best interests of the child sub judice would be served by the termination of Appellee’s rights, thus, paving the way for Appellants’ adoption of the child. The child would continue to enjoy the stability and love offered by Appellants, the only parents she has ever known, in the only home she has ever known. We note that Appellee’s parental rights are not being terminated solely because his economic and educational situation is not as favorable as Appellants’. See 23 Pa.C.S.A. § 2511(b). Rather, it is based upon Appellee’s disregard for his parental duties coupled with Appellants’ ability to better serve the need and insure the welfare of the child. There is simply no evidence to suggest that this child’s “best interest” would be promoted by preserving Appellee’s parental status. Cf., Baby Boy A., supra; Adoption of David C., supra.

In sum, we rule that the trial court erred when it determined that Appellee had not “refused or failed to perform parental duties” for at least six months. In so ruling, we find that there was insufficient evidence upon which the lower court could base its decision to sustain Appellee’s parental rights. See Adoption of M.A.R., 405 Pa.Super. at 134-135, 591 A.2d at 1135 (standard of review). The fact that there were obstacles (many of which were erected by Appellee) for Appellee to overcome does not excuse his woeful lack of effort to assert his rights. As we have previously stated, a parent has an affirmative obligation to fulfill his or her parental duties. Simply refusing to relinquish one’s parental rights is not tantamount to demonstrating love, protection and concern for one’s child. Having considered the totality of the circumstances, we find that Appellants presented clear and convincing evidence that Appellee’s parental rights should be terminated.

Final Decree is reversed. Case remanded for entry of an order involuntarily terminating Appellee’s parental rights.

HUDOCK, J. files a dissenting statement.

HUDOCK, Judge,

dissenting:

I respectfully dissent. I disagree with the majority’s conclusion that Appellee could have overcome the obstructive barriers to perform his parental duties to E.S.M. The majority accepts the Appellants’ argument that Appellee contributed to these barriers by not contacting Appellants, E.S.M., or their attorney when he had access to information as to their whereabouts for a period in excess of six months. The majority rests this conclusion on Appellants’ version of the incidents. Specifically, the majority concentrates on the fact that Appellee was given a letter by the natural mother, which contained the address of Appellants’ attorney in June, 1989, and that Appellee then did not make any effort to contact the attorney nor the adoptor parents until March 21, 1990. Although the majority concedes that Appellee subsequently gave the letter to his sister, Ms. Ronnette Newsome, who eventually lost the letter, the majority finds that Appellee has offered no explanation for his failure to attempt contact during the time period in which he possessed the information. Moreover, the majority questions Appellee’s concern for the child in that he again failed to contact Appellants after receiving their telephone number from Ms. Newsome in September or October, 1989. Ms. Newsome, after reading the papers received by her brother, had contacted Appellants’ attorney in July, 1989. She was then contacted by Appellants and given their telephone number which she was to give to Appellee. The majority thus concludes that the barriers were not so great as to prevent Appellee from at least showing concern for his child by inquiring about her well-being. The majority, however, in reaching this determination, has replaced the trial court’s findings of fact with their own. The trial court found that it was unclear as to when Appellee actually obtained Appellants’ telephone number. The only testimony as to when the telephone number was given to Appellee was by Appellee himself. He testified, on direct examination, that he did not receive the telephone number until two or three months after his sisters had been telephoned by Appellants. (N.T. at p. 44). Appellee, however, testified on cross-examination that he had received Appellants’ telephone number approximately one year and three or four months prior to the hearing on the involuntary termination petition held October 1,1991. (N.T. at p. 60). Although Appellee’s testimony differs as to the time of receiving the Appellants’ telephone number, the trial court found that Appellee did not have sufficient knowledge as to where to contact his child until March, 1990, nor his former girlfriend until one month before the hearing. Likewise, the trial court found Appellee’s explanation for failing to contact Appellants’ attorney, subsequent to receiving the initial letter of adoption in June, 1989, credible. Appellee explained that there was so much confusion at that time, and he did not see the address of the attorney on the papers. (N.T. at p. 48). Furthermore, Appellee testified that he did not know what to do with the papers, and that he did not have any help or counseling on the matter. (N.T. at pp. 48, 59). This is precisely why Appellee had taken the papers to his sister’s home, where they were later misplaced. The trial court reasonably found Appellee to have been bewildered by this information. (Trial Court Opinion at p. 5).

Appellate courts are bound by the findings of the trial court, which have adequate support in the record, so long as the findings do not evince capricious disregard for competent and credible evidence. The trial court is free to believe all, part, or none of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence, In re J.W., 396 Pa.Super. 379, 386-388, 578 A.2d 952, 956-57 (1990). I find, after a careful review of the record, the trial court’s assessment of the evidence, in this instance, was not in error. Moreover, Appellants, as the parties petitioning for the termination of the natural father’s parental rights, have the burden of establishing grounds for involuntary termination by clear and convincing evidence. Our Supreme Court has explained the standard as follows:

[t]he standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.

Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-04 (1989); In re J.W., supra, 396 Pa.Super. at 388-389, 578 A.2d at 957. Accordingly, because there remains a doubt as to the actual date when Appellee received Appellants’ telephone number, Appellants have failed to prove beyond clear and convincing evidence that Appellee has neglected or failed to perform his parental duties in light of insurmountable barriers. I would therefore affirm the Decree of the trial court denying Appellants’ petition to involuntarily terminate Appellee’s parental rights.

      . Appellee also claims another gift was sent to E.S.M. However, it did not reach its destination.

      . Appellee’s assertion of his legal rights was hampered when his Arizona counsel was disbarred. However, we note that Appellee did not seek legal assistance until sometime between March 20, 1990, and March 28, 1990, at least nine months after being informed of the birth of his daughter. Further, he sought legal assistance only after his parents received a letter from Appellants' counsel once again reiterating their desire to adopt the child and informing Appellee of their intent to have his parental rights terminated. N.T., pp. 49-51.

      . We note that Appellee was aware that K.A.M. had a cousin who resided in the Phoenix area and that the cousin might know of K.A.M.'s whereabouts. After his meeting with K.A.M. in June of 1989, Appellee and his mother made one visit to the cousin's residence and, finding no one home, left, never to return. Appellee’s failure to pursue this lead is demonstrative of his nearly total lack of effort to locate K.A.M. and his child.

      . It is clear that Appellee was uncertain as to the precise date he received Appellants’ telephone number, as only Ms. Newsome had been contacted in July, 1989. Appellee’s other sister, Ms. Kimberly Barnes, had not been contacted by Appellants until March, 1990.


source: Caselaw Access Project

author: KELLY, Judge: CIRILLO, Judge,

license: Public Domain

text:
    622 A.2d 397
    COMMONWEALTH of Pennsylvania v. William RUDISILL, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1993.
    Filed March 29, 1993.

      William E. Ruane, Radnor, for appellant.
    Louis G. Stesis, Asst. Dist. Atty., Media, for Com.
    Before CIRILLO, BECK and KELLY, JJ.
   KELLY, Judge:

Appellant, William Rudisill, appeals from judgment of sentence following his convictions of possession of a controlled substance, possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and criminal conspiracy. We reverse.

The salient facts and procedural background may be summarized as follows. On June 19, 1990, Delaware County Narcotics Officers, accompanied by two township police officers and one Pennsylvania state trooper, arrived at appellant’s apartment to execute a valid search warrant. One of the police officers knocked on appellant’s door. No response followed. After fifteen seconds, the police simultaneously knocked on the door, announced their presence and identity as police officers, and sledge-hammered their entry into the apartment. After this entry and pursuant to the search warrant, the police officers searched appellant’s apartment. The search revealed several envelopes of PCP and a mixture of ether and PCP.

Before trial, appellant moved to suppress the evidence, arguing, inter alia, that the police officers violated the “knock and announce” rule. Following a hearing, the trial court denied appellant’s motion. At a non-jury trial on the merits of the case, appellant was convicted as stated above. Post-verdict motions were filed and denied. The trial court sentenced appellant to four to ten years imprisonment and fined him $25,000.00. This timely appeal followed.

On appeal, appellant argues:

THE POLICE OFFICERS WHO EXECUTED THE SEARCH WARRANT HEREIN VIOLATED THE “KNOCK AND ANNOUNCE” RULE AND, AS A RESULT, ALL EVIDENCE OBTAINED FROM THE SEARCH OF THE APARTMENT SHOULD BE SUPPRESSED.

Appellant’s Brief at i. We agree.

Our standard of review is as follows:

In reviewing an order denying a motion to suppress evidence, this Court must
determine whether the factual findings of the suppression court are supported by the record. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.

Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989), allocatur denied, 525 Pa. 598, 575 A.2d 564 (1990) (citations omitted).

In determining whether an entry following a knock and announcement is unlawful, we must consider whether the delay in entry was reasonable. Commonwealth v. Means, 531 Pa. 504, 614 A.2d 220 (1992); Pa.R.Crim.P. 2007. An entry which is unreasonable under Pennsylvania Rule of Criminal Procedure 2007 (“Manner of Entry Into Premises”) is also an unreasonable entry under the Fourth Amendment. Commonwealth v. Means, supra at 506-08, 614 A.2d at 222.

The following precedents have determined what constitutes an unreasonable police entry. In Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968), the Pennsylvania Supreme Court held that a forcible entry following twenty seconds of silence after the knocking and announcement was unreasonable. Likewise, a forcible entry only five to ten seconds after the knocking and announcement is unreasonable, Commonwealth v. Means, supra, as is a forcible entry after a delay of one to two seconds. Commonwealth v. Bull, 422 Pa.Super. 67, 618 A.2d 1019 (1993). Moreover, even if the police wait thirty seconds after the original knock, their forcible entry is unreasonable if it follows the announcement of their identity by only five to ten seconds. Commonwealth v. McDonel, 411 Pa.Super. 187, 601 A.2d 302 (1991).

If the entry is unreasonable due to a violation of Rule 2007 and the Constitution, the fruits of the search must be suppressed from trial. Commonwealth v. Means, supra; Commonwealth v. Bull, supra. Our Supreme Court explained:

... Rule 2007 in particular implicates the fundamental constitutional concern of the prohibition against unreasonable searches and seizures. Therefore, a finding that the police’s deliberate execution of a search warrant violated Rule 2007 dictates the conclusion that the fruits of the unlawful search should have been suppressed.

Commonwealth v. Means, supra, 531 Pa. at 509, 614 A.2d at 223.

In the instant case, the police initially knocked on appellant’s door without identifying themselves. Fifteen seconds later, they knocked and announced their presence. However, their forcible entry occurred simultaneously; the police allowed no time to lapse between their announcement and their entry. Pursuant to established interpretations of the Fourth Amendment and Pennsylvania Rule of Criminal Procedure 2007, we conclude that the police entry was unreasonable. Accordingly, the trial court should have granted appellant’s motion to suppress the fruits of the search that followed. We must, therefore, vacate judgment of sentence and remand for a new trial.

Judgment of sentence vacated. Case remanded.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting.

I respectfully dissent. I disagree with the majority’s conclusion that the trial court should have granted appellant’s motion to suppress the evidence seized, as I am not persuaded that the facts here warrant such a drastic measure.

It is undisputed that the search warrant in the instant case was a valid one, hence, the police would have been entitled to enter the premises forcibly and conduct a search with or without the permission of the occupants. See Commonwealth v. Davis, 407 Pa.Super. 415, 428, 595 A.2d 1216, 1223 (1991), appeal denied, 530 Pa. 630, 606 A.2d 900 (1992); Commonwealth v. Morgan, 517 Pa. 93, 96, 534 A.2d 1054, 1056 (1987). Even assuming there was no technical compliance with the notice requirement of Rule 2007, “this does not ipso facto necessitate a finding that the evidence seized must be suppressed.” Davis, 407 Pa.Super. at 428, 595 A.2d at 1223. Specifically,

exclusion/suppression of evidence is not an appropriate remedy for every violation of the Pennsylvania Rules of Criminal Procedure concerning searches and seizures. It is only where the violation also implicates fundamental, constitutional concerns, is conducted in bad faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy.

Commonwealth v. Mason, 507 Pa. 396, 406-07, 490 A.2d 421, 426 (1985).

Assuming a violation of the “knock and announce” rule in the instant case, to require suppression of the contraband seized from appellant’s apartment would clearly be “a remedy out of proportion to the benefits gained to the end of obtaining justice while preserving individual liberties unimpaired.” Id. (quoting United States v. Searp, 586 F.2d 1117 (6th Cir.1978), cert. denied 440 U.S. 921, 99 S.Ct. 1247, 59 L.Ed.2d 474 (1979) (suppression due to Rules violation not justified absent bad faith conduct on the part of police or prejudice to defendant in sense that search would not have occurred or would not have been as obtrusive)). Here the officers, armed with a valid search warrant, knocked on appellant’s door, waited fifteen seconds, and began entering the premises while identifying themselves. Allowing more time to lapse between their announcement and their entry would have been a futile gesture and appellant was not so substantially prejudiced by the officer’s failure to do so. Mason, supra.

Furthermore, while the purpose of the “knock and announce” rule is to permit a peaceful apprehension of the person and premises before applying force, Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971), the Fourth Amendment must be applied under a standard of reasonableness. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982). In light of this reasonableness standard, although the Commonwealth does not assert the existence of exigent circumstances here, the argument set forth by Justice Papadakos, dissenting in Commonwealth v. Means, 531 Pa. 504, 614 A.2d 220 (1992) is well taken and worth reiterating:

Drug busts are so inherently exigent as to product and dangerous as to the authorities that the police, once armed with a proper warrant, should be allowed to knock, announce and enter almost immediately. The reasonableness requirement should play in favor of the authorities because any delay enables drug pushers to dispose of evidence by flushing or similar means. The term “exigency” takes on a whole new meaning in reference to drug cases. Finally, the “Fourth Amendment cannot be interpreted to imperil law enforcement officers.” Stanley, [supra].

Means, 531 Pa. at 509-10, 614 A.2d at 223 (Papadakos, J., dissenting).

In light of the foregoing and weighing the benefits of deterring police misconduct against the costs of excluding otherwise reliable evidence, I would affirm the judgment of sentence.

      . 35 P.S. § 780-113(a)(16).

      . 35 P.S. § 780-113(a)(30).

      . 35 P.S. § 780-113(a)(32).

      . 18 Pa.C.S.A. § 903.

      . The trial court found that the warrant was valid despite appellant’s pretrial argument to the contrary. See N.T. May 2, 1991 at 4. However, appellant has not maintained that argument on appeal. Therefore, for appellate purposes, the warrant was valid.

      . Rule 2007(b) provides that a police officer must await a reasonable amount of time after announcement of his identity before entering, "unless exigent circumstance require his immediate forcible entry.” Our Supreme Court has enunciated four circumstances which justify the exceptional entry:
      1) the occupants remain silent after repeated knocking and announcing;
      2) the police are virtually certain that the occupants of the premises already know their purpose;
      3) the police have reason to believe that an announcement prior to entry would imperil their safety; and
      4) the police have reason to believe that evidence is about to be destroyed.

        Commonwealth v. Chambers, 528 Pa. 403, 408, 598 A.2d 539, 54 (1991).

        Commonwealth v. Means, supra, 531 Pa. at 508, 614 A.2d at 222-23. The Commonwealth does not argue, nor can we conclude, that any of these exceptions apply in this case.

      . We reject the Commonwealth’s argument that the doctrine of inevitable discovety may be applied in this case to save the evidence from suppression. The inevitable discovery doctrine applies when there would have been a discovery independent from the one which resulted from the unlawful act. See Commonwealth v. Mason, 415 Pa.Super. 22, 36, 608 A.2d 506, 509 (1992), quoting Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) ("So long as a later lawful seizure is genuinely independent of an earlier, tainted one ... there is no reason why the independent source doctrine should not apply.”); Commonwealth v. Hoffman, 403 Pa.Super. 530, 589 A.2d 737 (1991) (evidence would have been discovered by other lawful means); Commonwealth v. Reviera, 387 Pa.Super. 196, 207, 563 A.2d 1252 (1989) ("Suppression of evidence is not available as a remedy for unlawful police conduct where the evidence was obtained by means independent of the unlawful police conduct.”). In the instant case, there was only to be one means of seizing the contraband — through the execution of the search warrant. There was no alternative plan to make entry. Therefore, the Commonwealth would not have discovered the evidence any other way. That they would have found the drugs pursuant to a lawful execution of the search warrant does not purge the unlawful execution.


author: HUDOCK, Judge.

text:
    622 A.2d 940
    COMMONWEALTH of Pennsylvania, Appellee, v. Sherman McGETH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1992.
    Filed Feb. 2, 1993.
    Reargument Denied April 12, 1993.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before McEWEN, DEL SOLE and HUDOCK, JJ.

      . In reviewing the record, we discovered the defendant’s name is actually Sherman McGoth. We therefore refer to him by his correct name throughout this opinion despite the erroneous caption.

   HUDOCK, Judge.

Appellant Sherman McGoth (McGoth) appeals the judgment of sentence entered against him following a jury trial during which he was tried for two counts aggravated assault, 18 Pa.C.S. § 2702 (Purdon 1983), possession of a controlled substance with intent to deliver, 35 Pa.C.S. § 780-113(a)(30) (Purdon Supp.1992), and related offenses. Following the denial of timely post-trial motions, the trial court sentenced McGoth to two concurrent terms of three to ten years imprisonment for aggravated assault, both sentences to run consecutively to a term of one to two years and a fine of $5,000.00 for the drug offense. This direct appeal followed. We reverse and remand.

We are without benefit of the trial court’s wisdom in this matter as the Honorable John A. Geisz retired from the bench before filing an opinion. Therefore, taking the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the Commonwealth as verdict winner, we base our review on the following facts of record.

On April 27, 1989, at approximately 12:30 a.m., McGoth and another man were talking in front of a bar at the corner of Landsowne Avenue and Redfield Street in Philadelphia, Pennsylvania. This location is considered a high-crime, high-drug area of Philadelphia. Police Officers Joseph Spera and John Donahue were in uniform and patrolling the area in a marked police van. As they approached the corner of Landsowne and Redfield, the officers noticed McGoth and the other man standing in front-of the bar. As the officers exited their vehicle, McGoth entered the bar. Officer Spera followed McGoth into the bar in time to see McGoth drop something behind the vacant, chest-high “D.J. cubicle” at the rear of the bar. Officer Spera then went to check an exit at the back of the bar and found it was locked. He then returned to the front of the bar and saw that McGoth was now outside. Calling to his partner that McGoth had dropped something inside the bar, Officer Spera went back to the cubicle and recovered a plastic bag containing thirty-four vials of crack cocaine. Transcript of May 2, 1991, at pp. 30-44.

While Officer Spera was inside the bar, Officer Donahue frisked McGoth, finding seventeen .38 caliber bullets in McGoth’s jacket pocket. Fearing that the dropped object may have been a gun, Officer Donahue attempted to handcuff McGoth. He managed to get one handcuff on McGoth when McGoth began kicking and punching Donahue. Struggling to control McGoth, Donahue asked a woman passerby to get his partner out of the bar. Transcript of May 3, 1991, at pp. 3-9. Spera arrived to find McGoth punching his partner. He tried to grab McGoth but was also punched. Spera then responded by hitting McGoth in the legs with a nightstick as McGoth swung wildly at him. During the struggle, McGoth did not speak; his eyes were glassy. The officers were unable to subdue McGoth. Both were knocked to the ground as McGoth broke loose and ran down Redfield Street. Transcript of May 2, 1991, at pp. 49-53. The officers gave chase, eventually catching McGoth inside a residence. Another struggle ensued. When backup officers arrived, the combined effort of six of them successfully brought McGoth under control. Transcript of May 2,1991, at pp. 54-57; May 3,1991, at pp. 9-14.

Neither Officer Spera nor Officer Donahue was hurt. McGoth was taken to a hospital and treated for a black eye, abrasions, and soft tissue injuries. The attending neurosurgeon found a hairline skull fracture which he considered insignificant and not requiring admission. He did admit McGoth for high blood pressure, however. A drug screen revealed that McGoth had been under the influence of marijuana, alcohol and cocaine when he struggled with the officers. Transcript of May 3, 1991, at pp. 95-96.

On appeal, McGoth alleges prosecutorial misconduct and an error by the trial court concerning a Rule 1100 motion to dismiss.

McGoth’s first challenge refers to five statements made by the District Attorney during closing arguments. These statements, as interpreted by McGoth, may be summarized as follows: 1) calling McGoth an animal and a creep; 2) naming a list of hero cops who were injured in recent scuffles while on duty around Philadelphia; 3) accusing defense counsel of misusing properly received discovery to concoct a false story; 4) implying defense counsel only impeached the officers on one portion of the preliminary hearing testimony so that the remaining portions must have been true; and 5) urging the jury to excuse the police officers from their duty to follow the law when dealing with a defendant who gives them trouble. At trial, McGoth contended these statements were egregious, not specific to the facts of the case, and improper argument. Transcript of May 7, 1991, at pp. 2-4. He further suggests on appeal that these statements were not justified by the doctrine of fair response. Appellant’s brief at pp. 21-22.

In defense of the challenged statements, the District Attorney explained himself as follows: 1) the reference to creeps and animals was meant generally, and was not directed at McGoth personally; 2) the list of hero cops was also meant generally in terms of the types of people police officers face every day and the dangerous nature of their job; furthermore, the list of hero cops was in direct response to defense counsel’s reference to the Rodney King incident in Los Angeles, a matter extraneous to the case at hand; 3) the third statement was not an implicit accusation of false reports but an observation that McGoth’s story concurred with the testimony of the officers; 4) the suggestion that the remaining portions of the preliminary hearing notes must be true was never made; the District Attorney commented on the evidence, noting that defense counsel cross-examined the police officer on two specific pages out of a much longer document; and 5) the final statement was meant as a comment that the officers were justified in their actions once confronted by a person trying to cause them bodily harm.

Before turning to the merits of the prosecutorial misconduct challenge, we first address the Commonwealth’s claim that McGoth waived this issue because he did not request a mistrial or a curative instruction. Having reviewed the closing arguments and the ensuing side bar conference during which defense counsel listed his objections, we find no motion for a mistrial or a curative instruction by defense counsel. We do not believe this necessitates a finding of waiver, however. In cases where the waiver standard has been invoked, the trial court sustained counsel’s objection. See Commonwealth v. Chimenti, 362 Pa.Super. 350, 524 A.2d 913 (1987), alloc. de nied, 516 Pa. 639, 533 A.2d 711 (while defense counsel did object, he failed to request mistrial or curative instruction, and consequently, the issue is not preserved for our review); Commonwealth v. Jones, 501 Pa. 162, 460 A.2d 739 (1983) (issue was waived on appeal where defense counsel immediately objected to prosecutor’s conduct, but made no request for mistrial or curative instructions). By sustaining counsel’s objection, a trial court indicates that the challenged conduct was, in fact, improper. Once counsel’s, objection is sustained, therefore, a request for a curative instruction or mistrial (depending on the gravity of the misconduct) should be made immediately to remedy the error and/or to preserve the record.

The case at hand presents a situation in which the trial court overruled counsel’s objections to the prosecutorial comments. Hence the issue becomes: Does the same waiver standard apply when an objection is overruled and counsel fails to request a curative instruction or mistrial? We believe that, under the present law of this Commonwealth, when an objection is overruled, failing to request curative instructions or a mistrial does not result in waiver. In Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976), the Pennsylvania Supreme Court suggested that, when defense counsel objects to certain remarks of the prosecutor and the trial judge overrules the objection, this preserves the matter for appellate review. The Maloney court stated:

Herein, the objection was overruled, which distinguishes the situation from that presented in [Commonwealth v. ] Glenn, [459 Pa. 545, 330 A.2d 535 (1974) ] supra.... And finally, [because] the objection was overruled, the trial judge was in effect saying the district attorney’s remarks were proper. Under such circumstances, a motion for a mistrial [or curative instructions] would be an exercise in futility.

Maloney, 469 Pa. at 352, 365 A.2d at 1242 (emphasis added). By overruling defense counsel’s objections in the present matter, the trial court was, in effect, saying that the prosecutor’s comments were proper. The trial court also indicated sua sponte that curative instructions would have been unnecessary. While defense counsel could have engaged in a futile exercise by requesting relief anyway, we do not believe his failing to do so amounts to waiver of his objections on appellate review.

In reviewing the merits of this prosecutorial misconduct claim, we first note that the trial court decides whether the prosecutor’s comments so prejudiced the jury as to render them incapable of reaching a true verdict. This Court is limited in its review to whether the trial court abused its discretion. Commonwealth v. Hess, 378 Pa.Super. 221, 548 A.2d 582 (1988), alloc. den., 522 Pa. 618, 563 A.2d 887 (1989). The prosecution, like the defense, must be accorded reasonable latitude in fairly presenting its version of the case to the jury. Commonwealth v. Zettlemoyer, 500 Pa. 16, 53-54, 454 A.2d 937, 956-57 (1982). However, we may grant relief where the prosecution has deliberately destroyed the objectivity of the fact finder. Commonwealth v. Chester, 526 Pa. 578, 599-600, 587 A.2d 1367, 1377 (1991). Furthermore, we must examine allegedly improper prosecutorial comments within the context of defense counsel’s conduct. Commonwealth v. Clayton, 516 Pa. 263, 285, 532 A.2d 385, 396 (1987).

Another standard by which we are guided in reviewing claims of prosecutorial misconduct is the principle of fair response. The Pennsylvania Supreme Court explained this principle in Commonwealth v. Graham, 522 Pa. 115, 123 n. 6, 560 A.2d 129, 133 n. 6 (1989) (citations omitted):

Although two wrongs do not make a right, otherwise improper comments of the prosecutor are permissible when they merely counter the arguments made by defense counsel, in that such commentary would not have the unavoidable effect of prejudicing the jury.

Although the trial judge did not file an opinion in the instant matter, he fully explained his position in overruling defense counsel’s objections to the Commonwealth’s closing remarks. The trial judge stated:

I would say it was, on both sides, it was highly inflammatory and extrinsic matters were brought up, such as what happened, brought up by the Defense, as to what happened in Los Angeles. And other comments, with a list of hero cops that are putting their lives on the line each day and so it was very inflammatory on both sides. And I would say the reaction of Mr. Quinn [D.A.] may have been an overreaction.
But, I would say there is good basis for provocation on the full coverage that you made of the Police brutality and that exists everywhere or in Los Angeles any how.
I would say there was strong advocacy on both sides, and somewhat strong reaction on the part of the Commonwealth.
I would say it was understandable in view of the strong provocation that you [defense counsel] made.
And I think one balances off the other. And I have no reason to give any curative instructions to the Jury.
‡ 3* £ ‡
[Defense Counsel’s] objections are well pleaded, and the responses of the District Attorney have been well pleaded. And it’s all part of the limits, and the bounds of strong advocacy, And [sic] the Jury has both sides of the picture. And I’m not going to interfere. I would say it can go to the Jury without any curative instructions from me----

Transcript of May 7, 1991, at pp. 8-9, 11.

Granted, the trial court was in the best position to evaluate the highly emotional advocacy by both counsel. Moreover, rectifying any prejudice caused by their heated closing arguments was the sole province of the trial court. However, we disagree with the trial court that the arguments balanced each other out in terms of offering and responding to facts collateral to the case. We note that the use of analogies, metaphors, and collateral facts in arguing to a jury is a two-edge sword, sometimes serving to make a point in an argument, but more often providing the point for poking holes in the very same argument. In the instant parry, we consider the prosecutor’s comments as going well beyond what was necessary to respond to defense counsel’s comments.

Defense counsel was obviously and improperly hinting at the Rodney King incident when he commented that “we’re not in Los Angeles. There wasn’t somebody with a recorder to record what happened here.” Transcripts May 6, 1991, at p. 81. Defense counsel also repeatedly disparaged the character of the police officers involved in this case, alleging they fabricated their version of the circumstances surrounding McGoth’s arrest. Transcripts May 6, 1991, at pp. 76, 77-78, 85. In fair response, the prosecutor could have addressed the lack of relevance of the Los Angeles incident to the circumstances surrounding McGoth’s arrest, mthout introducing a conversation he had with a police officer friend about the officer’s partner being too afraid to go back out on the street after a shooting incident. He could also have generally described the bravery of the police force, without mentioning specific names of officers or specific acts performed in the line of duty. Transcripts May 6, 1991, at pp. 117-118. In referring by name to police officers not involved in this case, the prosecutor introduced facts not in evidence and not relevant to the jury’s deliberations about the case before it.

The prosecutor also stepped out of bounds when he referred to McGoth indirectly with the statement, “... tell the two Officers that you guys are right, and creeps like this should not be allowed to treat others like this---- We’re dealing with animals like that.” Transcripts May 6, 1991, at pp. 118-119. Read in context, this comment is more than a general reference to society’s undesirables, which is how the Commonwealth describes the remark. It is an obvious reference to McGoth which exceeds the reasonable latitude extended to counsel in arguing their case.

For the reasons discussed above, we conclude the trial court abused its discretion in overruling defense counsel’s objections to the prosecutor’s comments. We reverse and remand, therefore, for a new trial on this issue.

As his second issue, McGoth challenges the trial court’s refusal to conduct a hearing on his timely pro se motion to dismiss pursuant to Pennsylvania Rule of Criminal Procedure 1100, 42 Pa.C.S. (Purdon Supp.1992). McGoth was arrested on April 29, 1989. He filed the Rule 1100 motion on December 7, 1990. Nothing more was done regarding the motion until defense counsel raised it the morning of trial on May 2, 1991, after jury selection but before formal arraignment. After defense counsel argued the motion to dismiss, the trial judge indicated this was the first time he had heard anything about an outstanding pro se petition for Rule 1100 dismissal. Moreover, continued the trial judge, defense counsel had plenty of time to litigate the motion before picking a jury. Defense counsel conceded that he did not bring the motion to the court’s attention; however, he explained, that does not preclude him from arguing the Rule 1100 motion before his client was arraigned and the jury sworn.

Feeling compelled to proceed with a trial, the trial judge disposed of the motion without a hearing: “I don’t see any merit to bringing up a Rule 1100 at this time. It’s made of record, a matter of record in the case and preserved for any future action on appeal or anything else. But, we’re ready to go ahead and have to go ahead with the Jury trial, and the motion to litigate Rule 1100 is denied.” Transcript of May 2, 1991, at p. 8.

In reviewing an order dismissing a Rule 1100 motion without a hearing, the question arises as to whether such an order is interlocutory and, therefore, not appealable. The panel in Commonwealth v. Swartz, 397 Pa.Super. 157, 579 A.2d 978 (1990), dispelled any concerns about the appealability of the order at hand. Although such an order is interlocutory, the law makes an exception where a motion raises an issue involving basic human rights. Swartz, 397 Pa.Super. at 160-61, 579 A.2d at 980 (citations omitted). The Supreme Court of Pennsylvania has held that a Rule 1100 motion raises an issue of basic human rights. Commonwealth v. Bunter, 445 Pa. 413, 419, 282 A.2d 705, 707 (1971). Consequently, McGoth could have appealed the trial court’s order denying his Rule 1100 motion without a hearing and not proceeded with the trial.

Another question presented by this case is whether McGoth waived his Rule 1100 argument by failing to bring the outstanding motion to the trial court’s attention before the case had been called to trial and/or by failing to appeal the trial court’s order denying his petition without a hearing. While it could be argued that McGoth waived this issue, we will address the merits in the interest of justice.

As McGoth has pointed out in his brief, the law clearly provides that a motion to dismiss can be denied if “upon hearing, [the court] shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth[,]” Pa.R.Crim.P. 1100(g), 42 Pa.C.S. (Purdon 1989). The purpose of the hearing is to afford both parties an opportunity to present factual allegations regarding if and why the defendant was denied his right to a speedy trial pursuant to the time periods of Rule 1100.

While we agree in theory that the trial court erred in not conducting a Rule 1100 hearing, we find no prejudice resulting to McGoth. Neither McGoth’s written motion nor counsel’s oral arguments included any factual allegations to be addressed at a hearing. Moreover, had the trial court conducted a hearing, it would have reviewed the docket entries which indicate that all the delays were excludable in favor of the Commonwealth. Trial commenced 732 days after McGoth’s arrest; for 656 of those days the running of Rule 1100 was tolled, so that the number of chargeable days was 76. Discharge under Rule 1100(g) is available only if trial has not commenced after 365 chargeable days. The Commonwealth was well within the statutory time frame. Therefore, McGoth’s petition was meritless on its face.

Judgment of sentence reversed. Case remanded for a new trial.

      . In his discussion of the fair response doctrine, McGoth urges this Court to reject any invited response analysis. McGoth’s confidence in this argument stems from the United States Supreme Court’s dicta, and especially from Justice Brennan’s dissenting opinion, in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). The majority implied a dissatisfaction with the fair response doctrine, preferring to rely on the trial court’s duty to enforce counsel’s ethical behavior, rather than allowing improper argument to “right the scales.” Young, 470 U.S. at 7-12, 105 S.Ct. at 1042-44 (citations omitted). Justice Brennan and his three fellow dissenters would go further and reject the fair response doctrine, suggesting instead that prosecutors be required to object to defense misconduct rather than being allowed to respond in kind.
      We decline to elevate our authority and abolish the fair response doctrine, a chore more suitably left to the highest court of this Commonwealth.


author: BECK, Judge.

text:
    622 A.2d 946
    COMMONWEALTH of Pennsylvania v. Farrah BROWN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1992.
    Filed Feb. 3, 1993.
    Reargument Denied April 14, 1993.

      Bradley Bridge, Asst. Public Defender, Philadelphia, for appellant.
    Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   BECK, Judge.

We decide, inter alia, whether an individual’s refusal to testify in one courtroom constitutes contempt punishable by imprisonment after a judge in another courtroom issued an order of immunity. We find that the contempt order was properly issued and we therefore affirm the trial court.

In August of 1991, appellant Farrah Brown provided information to police that she was shot several times in the head by Rochelle Harris. One day before Harris’ preliminary hearing for aggravated assault, the Commonwealth presented to Philadelphia Common Pleas Court Judge Legróme Davis an immunity petition which provided that appellant Brown intended to invoke her privilege against self-incrimination when she was called as a witness against Harris. Judge Davis’ resulting immunity order stated that appellant was to testify as a witness against Harris and was not permitted to refuse to testify on the basis of her right against self-incrimination.

At Harris’ preliminary hearing on January 3, 1992, presided over by Municipal Court Judge Louis Retaceo, Brown refused to testify about the shooting and stated that she did not “want to go through with this,” did not want to prosecute Harris and also cited the fifth amendment. Judge Retaceo informed appellant that she was not permitted, under the authority of the immunity order, to refuse to testify and that if she continued to assert her fifth amendment right, she could be held in contempt of court. Upon subsequent questioning by the assistant district attorney, appellant repeatedly stated that she still did not want to answer the questions and was unwilling to tell the court anything about the incident. Judge Retaceo continued Harris’ preliminary hearing and referred the matter of appellant’s refusal to testify to Judge Davis.

On January 31, 1992, a contempt hearing was held before Judge Davis. At the hearing, Brown’s counsel suggested that the hearing be continued until after Harris’ preliminary hearing because his client was now willing to testify against Harris. Judge Davis granted the request and instructed the parties to return to his courtroom to resume the proceedings should Brown fail to testify as promised by both her counsel and herself.

On March 16, 1992 Harris’ preliminary hearing resumed before Judge Retaceo. This time, Brown testified that she did not remember any of the events on the date of the shooting because she was under the influence of drugs at the time. She also testified that she was under the influence of drugs when she implicated Harris in a statement to police. Immediately after the hearing, appellant was brought before Judge Davis who found her in contempt and sentenced her to a prison term of five months and twenty nine days.

Brown raises three issues on appeal. Brown first asserts that the basis for Judge Davis’ finding of contempt was that he did not believe appellant when she testified on March 16, 1992 at the continued preliminary hearing that she had no recollection of the shooting. Under In re Investigating Grand Jury of Chester County; Subpoena No. 91, 518 Pa. 485, 544 A.2d 924 (1988), appellant argues, the judge may not make a finding of contempt based solely on his belief that appellant lied when she testified.

We find this rule inapplicable here as the record is quite clear that Judge Davis held appellant in contempt for her refusal to testify on January 3, 1992, at the original preliminary hearing. At the March hearing before Judge Davis, appellant’s counsel, Assistant Defender Bradley Bridge, directly asked the court to clarify the basis for its finding of contempt:

Mr. Bridge: If I may Your Honor, the question initially I asked you then is why are we here.
The Court: Well, you are here for failure to answer questions after having been fully advised that she had been immunized and the Fifth Amendment did not apply.
Mr. Bridge: Back on January 3rd?
The Court: Right.

Appellant next argues that even if the contempt was based on her acts on January 3, 1992, it can only be deemed indirect contempt because appellant’s refusal to testify did not occur in the presence of Judge Davis. Appellant claims that because the contempt herein is indirect, she should be subject to a fine only.

In the instant matter, appellant was found in violation of the contempt statute, which provides:

The power of the several courts of this Commonwealth to issue attachments and to impose summary punishments for contempts of court shall be restricted to the following cases:
(1) The official misconduct of the officers of such courts respectively.
(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court.
(3) The misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.

42 Pa.C.S.A. § 4132.

Appellant was found to have disobeyed, as a witness, the lawful process of the court, thereby violating § 4132(2). The sentence for violation of § 4132 is fixed by statute:

Except as otherwise provided by statute, the punishment of commitment for contempt provided in section 4132 (relating to attachment and summary punishment for contempts) shall extend only to contempts committed in open court. All other contempts shall be punished by fine only.

42 Pa.C.S.A. § 4133.

Contempt is divided into two types, direct and indirect. Direct criminal contempt long has been defined as that occurring “in the presence of the court.” The meaning accorded that phrase however, is not so narrowly interpreted to include only those acts that the judge sees with his or her own eyes. In Crozer-Chester Medical Center v. Moran, 522 Pa. 124, 560 A.2d 133 (1989), our supreme court provided the following definition:

Direct contempt is obstruction by conduct, word or deed in the presence of the court and is a summary offense. It may be sanctioned as civil or criminal contempt depending upon the purposes sought by the court. It is summary because its proofs are evident; the authority and orderly process of the court are directly confronted upon its open record and the evidence is plain and usually self-accusing.

Id. 560 A.2d at 136.

While the general definition of direct contempt is an act committed in the presence of the court, many prison sentences for direct contempt have been upheld although the act was not committed “in front of’ the judge finding the contempt. See Commonwealth v. Crawford, 466 Pa. 269, 352 A.2d 52 (1976) (contemnor stated he would not testify though he did not actually refuse to answer questions in open court); Commonwealth v. Shaw, 280 Pa.Super. 575, 421 A.2d 1081 (1980) (defendant failed to return to court for afternoon session). We have held also that in proceedings before a grand jury, a witness’ refusal to testify is considered as taking place in the presence of the court. See Rosenberg Appeal, 186 Pa.Super. 509, 142 A.2d 449 (1958). Conversely, we have noted that the mere presence of an officer of the court during a contemptuous act does not make that act a direct contempt. See Altemose Const. Co. v. Building and Const. Traders Council of Philadelphia, 449 Pa. 194, 296 A.2d 504 (1972) (acts committed at construction site do not constitute direct criminal contempt even though sheriff was present), cert. denied, 411 U.S. 932, 93 S.Ct. 1901, 36 L.Ed.2d 392 (1973).

We need not determine whether the actions of appellant in the instant case are of such a type to be considered “in the presence of the court,” as appellant’s concern with labeling her contempt is a distinction without a difference. In Shaw, the appellant made a claim similar to the instant challenge and asserted that his failure to return to the courtroom for the afternoon session was not the type of contempt that could be punished by imprisonment. This court disagreed:

More refined, Shaw’s argument is that [the statute] limits punishment by imprisonment for contempts ... to situations wherein the contemptuous conduct occurs in the presence of the court. But [the statute] limits the use of imprisonment not to conduct occurring in the presence of the court ... but to conduct occurring in open court, and, as we have pointed out, in open court includes the conduct involved herein.

Shaw, 280 Pa.Super. at 582, 421 A.2d at 1085 (citations omitted) (emphasis in original).

Open court is a court “which has been formally convened and declared open for the transaction of its proper judicial business.” Commonwealth v. Ferrara, 487 Pa. 392, 409 A.2d 407, 411 (1979) (appellants’ failure to appear for court constituted direct criminal contempt).

That the Judge who signed appellant’s immunity order and made the finding of contempt was not the judge before whom the contemptuous act was committed does not preclude a prison sentence in this instance. Whether the contemptuous act is considered direct or indirect is irrelevant here because § 4133 permits imposition of a prison sentence anytime a contemptuous act is committed in open court. Appellant’s refusal to testify on January 3 took place in open court, on the record; as such, it properly was punished by imprisonment.

Even though an individual may be subject to the imposition of summary punishment for criminal contempt, a contemnor is entitled to the essential procedural safeguards of criminal proceedings. In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975). In order to be guilty of criminal contempt, the contemnor must have notice of the specific order and her act of contempt must be volitional. Commonwealth v. Garrison, 478 Pa. 356, 386 A.2d 971 (1978). Due process requires that the contemnor have notice of the contempt hearing so that she may make a defense. Commonwealth v. Jackson, 367 Pa.Super. 6, 532 A.2d 28 (1987). The record reflects that appellant herein had notice of the order compelling her to testify at Harris’ hearing and that her refusal to do so was clearly of her own volition and with knowledge of the ramifications. Appellant claims, however, that she was denied an opportunity to make a defense.

The record reveals that at the hearing Judge Davis asked counsel for appellant whether he had a notice problem:

The Court: I mean do you have a notice problem or are you unable to represent her as to what occurred on January 3rd? Have you only prepared yourself for what happened today and not what happened on January 3rd?
Mr. Bridge: Well, I’ll answer your question, but let me answer it with a question also which goes back to my original discussion of why we’re here. Because the matter on January 3rd as well as today did not take place in front of you but coincidentally on each occasion in front of Judge Ritacco, I assume we are here on an indirect criminal contempt because it did not happen directly in front of Your Honor. Now, the question you are asking now and whether I can represent my client, I assume that I will be able to do so, but I need to talk to her for a moment.
The Court: You were ready to represent her on the 31st.
Mr. Bridge: That’s right.
The Court: On the substance of the same issues.
Mr. Bridge: That’s right. Based on our discussion on January 31st I thought the issue of January 3rd had been resolved.
i'fi # ‡ # %
The Court: You wanted to speak to your client, speak to her.
Mr. Bridge: I will. (Mr. Bridge confers with Farah Brown)
The Court: Yes, sir.
Mr. Bridge: Your Honor, I’ve had an opportunity to speak with Ms. Brown concerning what happened on January 3rd and to answer what you asked me originally, there is no notice problem regarding that, I understand what happened, I’ve spoken with her about it and I don’t have a problem with that.

We are satisfied that appellant received adequate notice in order to make a defense. Appellant further claims that she was denied the opportunity to present an adequate defense. We are cognizant here of the tension between the language of the statute which provides for summary punishment, see 42 Pa.C.S.A. § 4132, and the great importance of a contemnor’s due process rights. If there was a question as to whether those rights were complied with in a complete manner, we would err in favor of the contemnor. Here, however, we note that at the hearing on post-verdict motions, Judge Davis agreed to reconsider the matter. At that time, appellant’s counsel declined to present any evidence other than the testimony of appellant. After hearing appellant’s testimony, Judge Davis stated that he heard nothing to change his mind and denied post-verdict motions. Our standard of review for a finding of contempt is clear abuse of discretion. Estate of Baehr, 408 Pa.Super. 172, 596 A.2d 803 (1991). We find no abuse here.

Judgment of sentence affirmed.

      . Our holding is distinct from that in Commonwealth v. Lofton, 389 Pa. 273, 133 A.2d 203 (1957). In Lofton, the trial judge found appellant in contempt for his vicious, spiteful and insulting remarks to the court and, in part, for his prior refusal to testify at a trial before another judge. Our supreme court held that the court was not permitted to punish the appellant for a contempt committed before another court. In the instant case, Judge Davis ordered appellant to testify at Harris’ hearing before Judge Retaceo and appellant refused. While appellant’s contemptuous act technically took place before another judge, it was a direct violation of Judge Davis’ order and therefore punishable by him.


author: OLSZEWSKI, Judge:

text:
    622 A.2d 950
    COMMONWEALTH of Pennsylvania v. Shawn ALLISON, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1993.
    Filed March 12, 1993.

      Francis M. Socha, Harrisburg, for appellant.
    Richard E. Guida, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before WIEAND, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of sentence entered against Shawn Allison [“Allison”]. Allison was found guilty of aggravated assault and recklessly endangering another person [“REAP”] after a jury trial in front of the Honorable Sebastian D. Natale. We reverse the judgment of sentence and remand for a new trial.

The charges against Allison were filed as a result of an incident that occurred on April 24, 1990. On that date, at approximately 10:00 p.m., Rahiem Bartow was drinking beer at Charlie and Ernie’s Bar in downtown Harrisburg. Bartow approached three young women, Kim Middleton, Tarita Lyles, and Sheila Harden. The three were acquaintances of Bartow, and according to Bartow he asked them to buy him a beer. The women claimed they had no money and refused. Perturbed, Bartow dropped his pants in response, exposed himself, and offered a rather lewd alternative to his original request. This incident was witnessed by a man on the other side of the bar. The man confronted Bartow and demanded that he treat the women with more respect. This confrontation escalated into a fight between the two outside of the bar. During the fight, Bartow was shot in the mouth with a pistol.

While being treated at the hospital, Bartow explained that “someone tried to shoot me.” Later, Bartow reported to the police that the assailant was Allison, a man whom he has known for close to five years. Allison was thereafter arrested and charged with the aforementioned crimes. At trial, Bartow was the Commonwealth’s only eyewitness to the incident. He identified Allison as the man who approached him. The defense called two of the women in the bar, Lyles and Middleton, who corroborated Bartow’s account of the event, but denied that Allison was the man who confronted Bartow. Both women testified that they have known both Bartow and Allison for over five years. The defense also called Sherry Butler, Allison’s girlfriend, to testify that Allison was with her when the incident took place. Butler testified that she and her brother were at a shopping mall and returned to Butler’s apartment at approximately 9:45 p.m. Allison was sitting in Butler’s apartment when she and her brother arrived. Allison then drove Butler’s brother home, which took two to five minutes, according to Butler’s testimony. Otherwise, Allison was with Sherry Butler at all times after 9:45 p.m. that evening.

The jury convicted Allison of the aggravated assault and REAP charges. Post-trial motions were filed and denied; Allison was sentenced to six-to-twelve years incarceration on the aggravated assault charge. He was sentenced to six to twelve months on the REAP charge, which runs consecutive to the former sentence. New appellate counsel was assigned and now raises three issues: (1) whether the trial court erred in foreclosing defense counsel from impeaching Bartow’s testimony during cross-examination; (2) whether the verdict is against the weight of the evidence; and (3) whether trial counsel was ineffective for failing to object to the trial court’s jury instruction regarding Allison’s alibi defense. We have reviewed the arguments and find that Allison received ineffective assistance of counsel. We therefore reverse and remand for a new trial. In doing so, we need not address Allison’s first two arguments.

As we have mentioned, Allison’s defense was that he was not the person who assaulted Bartow. Although he did not testify, Allison presented testimony of two of the female bar patrons insulted by Bartow. Both women testified that although they know Allison well, it was not he who confronted Bartow in the bar. Allison also presented an alibi witness who claimed that but for two to five minutes during the evening hours after 9:45 p.m., Allison was with her. N.T. 12/3/90, at 87-93. The trial court, during its instructions to the jury, failed to mention the fact that Allison presented an alibi defense. After a discussion at sidebar, the court instructed the jury as follows:

The attorneys have brought to my attention that quite possibly I should have brought to your attention that there has been testimony offered by one of the witnesses, Sherry Butler, as to alibi. She was an alibi and you should consider her testimony as it pertains to the alibi that she offered as she testified.

N.T., 12/3/90, at 144.

This was the only mention of the alibi defense during the entire jury charge. The judge submitted the case to the jury without objection from defense counsel. Allison now claims that the instruction was improper and defense counsel’s failure to object to its inadequacy rendered counsel constitutionally defective. We agree.

The standard by which we view an ineffectiveness claim is well-settled.

Claims of ineffectiveness are subject to a three part analysis. First it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his or her client’s interests. Finally a showing must be made of how counsel’s choice of action prejudiced the client. The law presumes that counsel was effective, so the burden of establishing ineffectiveness rests squarely upon the defendant.

Commonwealth v. Pate, 421 Pa.Super. 122, 131, 617 A.2d 754, 759 (1992) (quoting Commonwealth v. Lebo, 405 Pa.Super. 316, 318-320, 592 A.2d 353, 357-358 (1991)).

Our Supreme Court has recently re-emphasized the importance of a jury instruction which adequately explains to the jury the significance of an alibi defense. In Commonwealth v. Saunders, 529 Pa. 140, 602 A.2d 816 (1992), the Court explained that a jury instruction, when viewed as a whole, must protect against the danger that a jury, if not fully persuaded by the alibi witnesses, might consider defendant’s failure to prove the defense as evidence of guilt. This concern stems from the seminal case of Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), wherein the Court stated that reversible error occurred when “the trial court failed to instruct the jury that it should acquit if Pound’s alibi evidence, even if not wholly believed, raised a reasonable doubt of his presence at the scene of the crime and its commission, and thus, of his guilt.” Id. at 633, 417 A.2d at 603 (citations omitted). In Saunders, the Supreme Court reiterated the importance of a carefully crafted alibi instruction, but rejected the contention that an adequate alibi instruction must contain the Pounds “even if not wholly believed” language:

As long as an alibi instruction makes it clear that a defendant’s failure to prove alibi is not in itself basis for a finding of guilt, the instruction cannot be faulted for failing to parrot the exact language contained in Pounds. An instruction is proper if it expressly informs the jury that alibi evidence, either by itself or together with other evidence, could raise a reasonable doubt as to the defendant’s guilt and clearly directs the jury to consider this evidence in determining whether the Commonwealth met its burden of proving beyond a reasonable doubt that the crime was committed by the defendant. A charge which meets this standard would not be taken to mean that by introducing alibi evidence the defense assumed a burden of proof, which, if not met, could provide a basis for finding guilt.

Saunders, 529 Pa. at 145, 602 A.2d at 818; see, Commonwealth v. Jones, 529 Pa. 149, 602 A.2d 820 (1992) (quoting same language).

Thus, while a proper alibi instruction need not contain any “magic language,” the charge must make it clear to the jury that alibi evidence, by itself or taken together with other evidence may tend to raise a reasonable doubt as to defendant’s guilt. In short, the trial court must “make it clear to the jury that the defendant’s failure to prove alibi is not tantamount to guilt.” Commonwealth v. Weinder, 395 Pa.Super. 608, 619-620, 577 A.2d 1364, 1370 (1990). The trial court’s alibi instruction in this case did not even approach the necessary thoroughness required by Saunders. The instruction failed to explain, either directly or indirectly, what significance the jury should attach to the' alibi evidence. In fact, the trial court did not even explain the legal definition of “alibi” to the jury. This cursory instruction, in no way, protected against the Pounds, Saunders, and Jones concern that an inadequate instruction might allow the jury to convict a defendant upon his failure to conclusively prove the alibi defense. Since the trial court’s instruction was woefully inadequate, Allison’s underlying claim has arguable merit.

We must next decide whether counsel’s failure to object had a reasonable basis designed to further Allison’s interest. We find that it did not. We have consistently held that when a defendant presents alibi witnesses, a proper alibi instruction is such an essential component of the trial that there can be no reasonable basis for failing to request an instruction or failing to object to the trial court’s refusal to give one. Common wealth v. Gainer, 397 Pa.Super. 348, 580 A.2d 333 (1990), alloc. denied, 529 Pa. 645, 602 A.2d 856 (1992); Commonwealth v. Nauman, 345 Pa.Super. 457, 498 A.2d 913 (1985); see also Commonwealth v. Roxberry, 529 Pa. 160, 602 A.2d 826 (1992). Furthermore, our Supreme Court has held that the absence of a proper alibi instruction may not be held harmless error, even in light of abundant independent evidence against a defendant. Commonwealth v. Willis, 520 Pa. 289, 553 A.2d 959 (1989). Moreover, this Court has held that the failure to procure a proper alibi instruction is so vital to the trial that counsel’s failure to request a specific alibi instruction “so undermine[s] the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Weinder, supra, 395 Pa.Super. at 624, 577 A.2d at 1373 (discussing whether ineffectiveness claim for failing to request alibi instruction provides ground for relief under the Post-Conviction Relief Act 42 Pa.C.S.A § 9543(a)(2)(ii)).

Here, the Commonwealth asserts that counsel had a reasonable basis for failing to object to the inadequate instruction because the trial court, at other points during its charge, explained the Commonwealth’s burden of proof. This argument is unavailing. The purpose of requiring a specific alibi instruction is to ensure that the jury understands the context within which the alibi evidence should be considered. The danger of a jury misallocating the burden of proof in considering an alibi defense “is not adequately addressed through the general instructions given in every criminal case regarding the burden of proof; hence a specific instruction on alibi is required.” Saunders, supra 529 Pa. at 145, 602 A.2d at 818 (citing Pounds, supra, 490 Pa. at 634, 417 A.2d at 603). “A general charge on assessing the credibility of the witnesses ... does not suffice as an alibi instruction.” Weinder, supra 395 Pa.Super. at 623, 577 A.2d at 1372. The trial judge in this case gave no more than a general charge on the Commonwealth’s burden of proof. Then, in what can best be described as a mere afterthought, charged the jury to consider the alibi testimony “as it pertains to the alibi----” This instruction is entirely inadequate and there is no reasonable ground upon which defense counsel could have bypassed an objection to the instruction’s infirmity.

Finally, the absence of a proper instruction prejudiced defendant. The Commonwealth asserts that in the cases upon which Allison relies, either an instruction was not requested at all or the trial judge rendered an opinion regarding the credibility of the alibi witness. Pounds, supra; Willis, supra. The Commonwealth attempts to distinguish this case by claiming that defense counsel did request an instruction, and that the trial court indeed gave one, albeit less comprehensive than it could have been. This distinction is disingenuous. We cannot say that the jury, without a proper instruction, did not consider Allison’s failure to prove his alibi defense as evidence of guilt. In Commonwealth v. Gainer, supra, we addressed a similar argument to the one the Commonwealth presents here:

The Commonwealth attempts to distinguish these Supreme Court decisions because they involved refusals by trial courts to give an alibi instruction and did not hold that trial counsel was ineffective for failing to request such an instruction. This is a distinction without a difference. In either event, the jury was not adequately instructed.

Id. 397 Pa.Super. at 354, 580 A.2d at 336 (emphasis added).

Likewise, the jury in this case did not receive an adequate instruction. It makes no difference that counsel requested the instruction when the trial court initially neglected to give one. When the trial court gave the inadequate instruction, counsel was under a duty to protect Allison’s right to a proper, specific alibi instruction by further request or objection. Her failure to do so rendered her performance constitutionally ineffective. As we stated in Gainer, supra, “the dereliction of trial counsel must be deemed prejudicial. For the jury to be given evidence of alibi and not to be told of its significance, i.e. how to use it, is to impair the jury’s ability to return a reliable verdict. Because counsel’s dereliction was prejudicial, it can be corrected only by awarding appellant a new trial.” Id. at 356, 580 A.2d at 337.

Judgment of sentence reversed and case remanded for a new trial. Jurisdiction relinquished.

      . Allison was also charged with attempted criminal homicide. The jury acquitted him of this crime. Thus, any further reference to "the charges" refers only to the crimes of aggravated assault and REAP.

      . The trial court did not address the issue in its trial court opinion because the issue was not raised in any proceedings below. New. counsel has been appointed, however, and this appeal presents the earliest appropriate opportunity for Allison to raise the issue. We must, therefore, address it. Commonwealth v. Pizzo, 529 Pa. 155, 602 A.2d 823 (1992).

      . An alibi is a defense that places defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party. Commonwealth v. Weinder, 395 Pa.Super. 608, 577 A.2d 1364 (1990). We recognize that there is a "window” in the present alibi’s testimony of two to five minutes during the relevant time period. We would find it extremely difficult to believe, and indeed the Commonwealth does not argue, that Allison could leave Butler’s apartment, dash to the bar, witness Bar-tow's conversation with the women, confront him, ask him to step outside, and engage in a rather involved brawl, and return to Butler’s apartment all in two to five minutes. We need not decide whether the “window” in the alibi testimony made it possible for Allison to commit the crime, however, since the Commonwealth concedes that Allison was entitled to an alibi instruction. Commonwealth's brief, at 12.