author: KELLY, Judge.

text:
    630 A.2d 1266
    In the Interest of C.G. Appeal of C.G., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 7, 1993.
    Filed Sept. 17, 1993.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., for Com., participating party.
    Before McEWEN, KELLY and CERCONE, JJ.
   KELLY, Judge.

In this appeal we are asked to determine whether a juvenile, adjudicated delinquent, forfeits the right to file an appeal nunc pro tunc on the ground of ineffective assistance of counsel, where the juvenile is on fugitive status after post-trial proceedings commence. We hold that appellant has forfeited his right to an appellate review on the merits of his claims due to his fugitive status at the time of his appeal. Accordingly, we quash appellant’s appeal.

The relevant facts and procedural history of this case may be summarized as follows. On September 16, 1992, appellant, a minor, was adjudicated delinquent for knowing and intentional possession of marijuana and placed on an intensive drug and alcohol rehabilitation program and probation. He was ordered to appear on November 17, 1992 for a probation review hearing. On September 23, 1992, appellant filed a motion to reconsider the verdict and/or to grant post-verdict relief which was denied on October 14, 1992. On October 30, 1992, appellant filed a petition for judicial permission to file an appeal within thirty (30) days alleging the ineffective assistance of trial counsel for failing to appeal within thirty days of the September 16, 1992 order. The petition was denied without a hearing on October 30, 1992. Appellant failed to appear on November 17, 1992 for his probation review hearing. On November 18,1992, appellant filed the instant appeal from the October 30, 1992 order denying his petition to reinstate his appellate rights nunc pro tunc. Following the probation review hearing scheduled for December 17, 1992, which appellant did not attend, the trial court issued a bench warrant. The Commonwealth subsequently moved to quash the instant appeal on the basis of appellant’s fugitive status during post-trial proceedings.

Where a defendant is a fugitive at any time after post-trial proceedings commence he forfeits his right to appellate review. Commonwealth v. Jones, 530 Pa. 536, 541, 610 A.2d 439, 441 (1992). This forfeiture is irrevocable and cannot be undone despite capture or voluntary return to custody. Id. “The rationale behind dismissal of an appeal while a convicted defendant is a fugitive from justice rests upon the inherent discretion of any court to refuse to hear the claim of a litigant who, by escaping, has placed himself beyond the jurisdiction and control of the court, and hence, might not be responsive to the judgment of the court.” In Interest of Dixon, 282 Pa.Super. 189, 190, 422 A.2d 892, 893, (1980) (quoting Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975)) (supporting citations omitted). See generally Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984) (to preserve a right to appeal, a defendant must comply with the procedures established by this Court; one who deliberately bypasses these orderly procedures is bound by the consequences of his decision).

Our Supreme Court applied the Jones holding to juveniles in its recent decision, In Interest of Thomas, 533 Pa. 572, 626 A.2d 150 (1993). In Thomas the Court stated:

[O]ur holding in Jones extends to juvenile defendants, making a juvenile defendant’s voluntary escape a per se, irrevocable forfeiture of his right of appeal, where the juvenile defendant is a fugitive at any time after post-trial proceedings commence.

Id, — U.S. at-, 626 A.2d at 153.

We recognize the severity of such a consequence but nonetheless find that it is warranted in order to maintain the integrity of the appellate process and protect the public interest. These serious considerations do not turn on whether or not the defendant is a juvenile. Flight by juveniles, like their adult counterparts, imperils the ability of the Commonwealth to retry their cases, should that be necessary, because of the failing memories of witnesses, the unavailability or death of witnesses and the loss or deterioration of evidence. Additionally, flight by juvenile defendants is no less disruptive of the appellate process than flight by adult defendants. A fugitive juvenile is equally unresponsive to the appellate courts ...

Id.

Instantly, a bench warrant was issued for the appellant due to his failure to appear at his probation review hearings on November 17, 1992 and December 17, 1992. Appellant’s whereabouts were unknown at the time counsel filed an appellate brief on his behalf. Moreover, appellant remained in absentia up to and including the time the Commonwealth moved to quash his appeal on the basis of appellant’s fugitive status. Therefore, the holding of In Interest of Thomas, supra, is controlling.

Appellant, however, relies on In Interest of A.P., 421 Pa.Super. 141, 617 A.2d 764 (1992) ien banc) in support of his argument that the trial court erred by refusing to grant him leave to file an appeal nunc pro tunc. The A.P. Court determined that failure to preserve a juvenile’s appellate rights constituted per se ineffectiveness of counsel and that the trial court should have granted the juvenile’s motion to file an appeal nunc pro tunc. Nevertheless, A.P. is distinguishable from the instant case because, here, appellant has forfeited his appellate rights due to his fugitive status at the time of appeal, under the rule of In Interest of Thomas, supra.

The Pennsylvania Rules of Appellate Procedure expressly provide for the quashing of an appeal where appellant is a fugitive. Pa.R.App.P. 1972(6). On March 25, 1993, the Commonwealth filed its first motion to quash this appeal on the ground that appellant had failed to file his appeal within thirty days of the order from which the appeal had been taken. On March 29, 1993, the Commonwealth filed a second motion to quash, pursuant to Pa.R.App.P. 1972(6), upon discovering that appellant was on fugitive status at the time of his appeal. In any event, it is within the discretion of the Court to dismiss an appeal either on a motion by the Commonwealth, Pa.R.App.P. 1972, or to take such action sua sponte. Commonwealth v. Passaro, supra 504 Pa. at 615, 476 A.2d at 348.

Ordinarily, this Court would grant the appellant leave to file an appeal nunc pro tunc, especially when a juvenile’s appellate rights are jeopardized due to counsel’s failure to file a timely appeal. In Interest of A.P., supra. However, the Pennsylvania Rules of Appellate Procedure and relevant case law expressly provide for the quashing of an appeal where appellant is a fugitive at any time after post-trial proceedings commence, regardless of appellant’s status as a juvenile offender. In Interest of Thomas, supra. Accordingly, we grant the Commonwealth’s motion to quash, and dismiss this appeal.

Appeal quashed.

      . Appellant raises two issues for our review. First, appellant asserts that the trial court erred in denying his petition to file an appeal nunc pro tunc where trial counsel failed to preserve, in a timely manner, appellant’s right to appeal. Second, appellant challenges the trial court’s adjudication of delinquency as erroneous. We do not reach the merits of these issues. However, we draw attention to the decision of Commonwealth v. Davis, 421 Pa.Super. 454, 618 A.2d 426 (1992) (en banc) (possession of a small amount of marijuana is a "misdemeanor,” as expressly classified in the Controlled Substance Act 35 P.S. §§ 780-113(a)(31), (f)(1), (g), rather than a "summary offense”).

      . 35 P.S. § 780-113(a)(31).

      . At bar, the procedural anomalies began to occur with the filing of appellant’s motion to reconsider the verdict and/or grant post-verdict relief.
      We observe at the outset that the Juvenile Act, unlike its predecessors, does not provide for post-trial motions or relief, and the procedures for post-trial review contained in the Pennsylvania Rules of Civil Procedure do not apply to juvenile proceedings unless specifically provided otherwise. Pennsylvania Rule of Criminal Procedure 1(a) provides:
      These rules shall govern criminal proceedings in all courts including courts not of record. Unless otherwise specifically provided, these rules shall not apply to juvenile or domestic relations proceedings.
      In the note to Rule 1, it is stated:
      These rules apply to proceedings involving juveniles only to the extent that the Juvenile Act does not vest jurisdiction in the Juvenile Court. See, e.g., Juvenile Act §§ 6302-6303, 42 Pa.C.S. §§ 6302-6303, 6355 (1982); Vehicle Code 75 Pa.C.S. § 6303 (1977).
      Nor may post-trial proceedings be introduced by reason of local rules as the authority to impose local rules must flow from the Juvenile Act, which does not grant such authority, or pursuant to Rule 1(b) of the Rules of Criminal Procedure, which is not applicable. Pennsylvania Rule of Criminal Procedure 6 provides:
      b)(l) [sic] Local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly.
      As stated above, Rule 1 provides the Rules of Criminal Procedure do not apply to juvenile proceedings so that a local rule could not impose those rules on such proceedings. Additionally, the Juvenile Act is sui generis and was meant by the legislature to be twofold in purpose: to protect the public interest and rehabilitate youthful offenders. [In Interest of] McDonough [287 Pa.Super. 326, 430 A.2d 308 (1981)]. Because of the difference in function between the Juvenile Act and Crimes Code, the proceedings of the two are not interchangeable. In the Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981).

        In Interest of Smith, 396 Pa.Super. 624, 631-32, 579 A.2d 889, 893 (1990), appeal denied, 527 Pa. 610, 590 A.2d 296 (1991) (quoting Commonwealth v. Clay, 376 Pa.Super. 425, 546 A.2d 101 (1988)).
      In Matter of [Brandon] Smith, 393 Pa.Super. 39, 573 A.2d 1077 (1990) (en banc ), [plurality] the issue of post-trial motions in juvenile cases was revisited by our Court en banc as it related to proceedings leading to claims of ineffectiveness of counsel. The majority voted 6 to 3 in favor of rejecting post-trial motions in juvenile proceedings and, therefore, the statement and rationale of Clay, supra, is controlling.

        In Interest of Smith, supra 396 Pa.Super. at 632, 579 A.2d at 893. Thus, the Order of September 16, 1992 adjudicating appellant delinquent was the order which should have triggered an appeal as to an erroneous adjudication. See Commonwealth v. Clay, supra. The final order of a Juvenile Court is the Dispositional Order as to a Delinquent Child, pursuant to 42 Pa.C.S.A. § 6352.

      . A recent en banc Superior Court decision noted as follows that a juvenile has no other means of redress:
      [A] nunc pro tunc appeal is the only means by which a juvenile can challenge the stewardship of his trial counsel because the Post Conviction Relief Act [42 Pa.C.S.A. § 9541 et seq.], which would be the remedy for an adult, is not available to a juvenile. See In the Interest of DelSignore, 249 Pa.Super. 149, 375 A.2d 803 (1977); Brandon Smith, [393 Pa.Super. 39, 573 A.2d 1077 (1990) (en banc)]. If the constitutional right to appellate review is to have any meaning under these circumstances, it must be protected through a nunc pro tunc appeal.

        In Interest of A.P., 421 Pa.Super. 141, 148, 617 A.2d 764, 768 (1992) (en banc). The Superior Court proceeded to review A.P.’s substantive issues which the parties had briefed and argued. Because the record was complete, this Court saw no necessity for a remand.

      . In Allen v. Georgia, 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949 (1897), the United States Supreme Court upheld a state court’s dismissal of a fugitive’s appeal and the refusal of that court to reinstate the appeal after the defendant's recapture. The Court followed Allen in Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975), which upheld the constitutionality of the Texas statute providing for the dismissal of a defendant’s appeal where he escapes during its pendency, unless he voluntarily returns within ten days.

      . The Supreme Court of the United States first applied the fugitive dismissal rule in Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876) to a defendant who remained at large when his appeal arose before the Court on the basis that there could be no assurance that any judgment the Court issued would prove enforceable. Ortega-Rodriquez v. United States, — U.S. -, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993).
      [Ojur cases consistently and unequivocally approve dismissal as an appropriate sanction when a prisoner is a fugitive during "the ongoing appellate process.” Moreover, this rule is amply supported by a number of justifications. In addition to addressing the enforceability concerns identified in Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876), and Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854 (1887), dismissal by an appellate court after a defendant has fled its jurisdiction serves an important deterrent function and advances an interest in efficient, dignified appellate practice. Estelle, 420 U.S. at 537, 95 S.Ct. 1173, 43 L.Ed.2d 377.

        Id. — U.S. at-, 113 S.Ct. at 1204, 122 L.Ed.2d at 593.

      . Pa.R.App.P. 1972 states in pertinent part that any party may move: (6) "To continue generally or to quash because the appellant is a fugitive.”

      . But see Commonwealth v. Judge, 530 Pa. 403, 609 A.2d 785 (1992) (Supreme Court of Pennsylvania is mandated to review all death sentences pursuant to 42 Pa.C.S.A. § 9711(h) because of the severity and finality of the sentence and to insure that the sentence comports with the Commonwealth’s death penalty statute, even where the defendant has forfeited his appellate rights by virtue of his fugitive status).


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    630 A.2d 1269
    COMMONWEALTH of Pennsylvania v. SAL-MAR AMUSEMENTS, INC., t/d/b/a Vanity, Gary N. Miller, Appellants.
    Superior Court of Pennsylvania.
    Submitted June 21, 1993.
    Filed Sept. 1, 1993.

      Ralph B. Pinskey, Harrisburg, for appellants.
    Richard E. Guida, Harrisburg, Asst. Dist. Atty., for Com., appellee.
    Before DEL SOLE, BECK and HESTER, JJ.
   BECK, Judge:

This appeal challenges the trial court’s finding that appellant/bar constituted a common nuisance. We affirm.

Vanity, a bar in the city of Harrisburg, is owned by appellant Sal-Mar Amusements, Inc.; Gary Miller is sole shareholder and president of the corporation. Beginning in the fall of 1989, Harrisburg police received numerous complaints from residents in the area surrounding Vanity about heavy traffic, boisterous conduct, drinking, littering and drug use. Police responded by conducting physical and video surveillance of the premises and, eventually, using an undercover agent to make drug purchases inside the bar. On July 24, 1990, the district attorney filed an action in equity asking the court to find that Vanity constituted a common nuisance and requesting that the bar be closed for a period of one year pursuant to 47 Pa.S.A. § 6-611.

In its Bill in Equity, the district attorney’s office recounted the undercover activities of Pennsylvania State Police Enforcement Officer Mort Ivy, who made repeated purchases of drugs while inside the bar from persons who appeared to have some control over the premises. Officer Ivy stated that the drug transactions were made in the presence of bar employees. Also part of the Bill were sworn statements from residents of the neighborhood who described the disruptive activity that took place outside the bar between midnight and 4:00 A.M., including drinking on the street, playing loud music, double parking, fighting, drug use and littering. Based on the allegations set forth in the Bill, the trial court granted a Temporary Restraining Order that closed the business pending a full hearing.

On September 18, 1990, the Honorable John C. Dowling scheduled a hearing on the merits for September 25, 1990. On the day of the hearing, appellant filed a motion for continuance and and a motion for recusal; both were denied and the proceedings were commenced. The proceedings were adjourned later that day and set to resume on October 1,1990. On September 27, 1990, appellant filed a motion for discovery. On October 1, 1990 appellant again requested a continuance, this time to allow additional time for discovery. The court denied the request. On October 3, 1990, at the conclusion of the hearing, the trial court found that Vanity constituted a common nuisance and ordered the sheriff to immediately close the bar for a period of one year. After post trial motions were denied, appellant filed this timely appeal.

We address first the Commonwealth’s Motion to Quash. The Commonwealth argues that the matter is moot because the bar was closed and remained closed for one full year prior to our review. Because the year has expired, the Commonwealth reasons, appellant no longer has a stake in the outcome of this case.

It is well established that an appellate court will not decide moot or abstract questions; an actual controversy must exist at all stages of review. In re Gross, 476 Pa. 203, 209, 382 A.2d 116, 119 (1978). Technically, this matter is moot because over one year has passed between the trial court’s closure order and our review. However, there are several exceptions to the mootness doctrine, two of which are applicable here.

First, this ease presents a question capable of repetition yet escaping judicial review. Commonwealth v. Smith, 336 Pa.Super. 636, 486 A.2d 445, 448 (1984) (citing Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)). By virtue of the time it takes to preserve issues for appellate review, file an appeal, and submit briefs and a reproduced record to a panel of this court, an appeal of a closure order is not likely to, and in this case did not, reach this court prior to expiration of the one year injunction mandated by the statute. Second, it is clear that one of the parties to the controversy will continue to suffer some detriment from the lower court’s decision. Id. Appellant/bar now has a record of closure based on the finding of a nuisance. The order by the trial court affects appellant’s liquor license and its record with the Pennsylvania Liquor Control Board, as well as the bar owner’s subsequent efforts to apply for, extend, and/or maintain a new or existing liquor license.

This adverse effect of the trial court’s order, and the fact that these types of cases typically escape appellate review, constitutes an exception to the mootness doctrine. See Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060, 1070 (1976). For these reasons, we deny the Commonwealth’s motion to quash and proceed to the merits of the case.

Appellant alleges nine errors on the part of the trial court; we will address each one. Appellant’s first claim, that the Pennsylvania Rules of Civil Procedure apply to this hearing, appears to relate directly to his eighth claim of error which alleges a technical violation of Pa.R.Civ.P. 1517 and, in appellant’s view, makes the trial court’s order a nullity. Rule 1517 sets forth the manner in which a court in equity is to issue an adjudication. Appellant claims that the trial court did not comply with the Rule. The Commonwealth insists that the Rule was satisfied.

Regardless of whether the Rule was adhered to in the technical sense, appellant can be afforded no relief on these facts. The purpose of Rule 1517 is to assure that an adjudication provides an adequate basis for appellate review. However, failure to conform to the Rule is not fatal where a party cannot articulate any prejudice suffered as a result of the failure. Matter of Estate of Ross, 316 Pa.Super. 36, 462 A.2d 780, 785 (1983). Appellant has not shown how he has been harmed by the court’s alleged failure to satisfy the Rule. Therefore, even if we were to find that a technical error had been made by the trial court, we would not afford appellant any relief on this issue.

Appellant next finds fault with the trial court’s refusal, on the day of the hearing, to grant a continuance. A trial court has broad discretion to grant or deny a request for a continuance; as an appellate court, we will not disturb such a decision unless an abuse of discretion is apparent. Walasavage v. Marinetti, 334 Pa.Super. 396, 483 A.2d 509, 518 (1984). Appellant contends that the continuance was necessary because discovery was not complete. The trial court found that appellant’s failure to file a motion for discovery for two full months after receipt of the Bill, coupled with the fact that the Bill itself set forth in detail the substance of the Commonwealth’s case, militated against the grant of a continuance. The trial court noted in its opinion that despite appellant’s claim of unpreparedness, counsel was fully prepared for cross-examination of Commonwealth witnesses and was able to call a number of witnesses in defense.

In response, appellant asserts general claims of unfairness regarding the trial court’s “rushing this case to final hearing” and denying appellant “substantial rights;” however, appellant offers no proof of actual prejudice suffered as a result of the trial court’s denial. We are persuaded by the trial court that denial of the request for a continuance was proper and caused no harm to appellant. We find no abuse of discretion on this issue.

Appellant next claims that the trial judge erred in refusing to recuse himself because of an alleged appearance of impropriety. We note that the party moving for recusal has the burden of establishing bias, prejudice or unfairness. Commonwealth v. Mickell, 409 Pa.Super. 595, 598 A.2d 1003, 1006 (1991), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992). Further, it is the duty of the trial judge to decide whether he or she can hear a case fairly and without prejudice; unless that decision constitutes an abuse of discretion, we will not disturb it. Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291, 1301 (1985).

We find that the trial judge acted properly in denying the motion for recusal. The bases for appellant’s motion are vague and unfounded. As discussed infra, the volume of evidence presented at trial supports fully the trial court’s grant of the one year injunction. Our review of the record leads us to conclude that the basis for the court’s ruling was the evidence before it and nothing more.

Appellant’s fourth, fifth and sixth claims have to do with the sufficiency of the evidence. First, appellant claims that the burden of proof for this type of case was not met by the Commonwealth. Second, appellant claims that the bar cannot be held responsible for the problems in the community because much of the offensive activity took place outside the bar, not on the premises. Third, appellant claims that because he was not personally aware of the drug transactions that occurred inside the bar, the court is precluded from finding that the bar should be closed.

In deciding whether a trial court has acted properly in closing a bar pursuant to § 6-611, we are to examine the record to determine if there were any “apparently reasonable grounds for the actions of the court below.” Commonwealth v. Graver, 461 Pa. 131, 334 A.2d 667, 669 (1975) (citations omitted). We are mindful that a court may consider violations of the crimes code when deciding whether the closure of an establishment is proper. Commonwealth ex rel Ness v. Keystone Sign Co., Inc., 355 Pa.Super. 562, 513 A.2d 1066, 1068-69 (1986). Further, an inquiry into the activities outside the bar is permissible so long as the conduct at issue is in the immediate vicinity of the bar and there is a causal relationship between what occurs inside and outside the premises. Id. See also Graver, 334 A.2d at 669.

The Commonwealth presented ample evidence supporting the closure of Vanity. Inside the bar, repeated sales of drugs were made to an undercover officer by persons with access to private areas of the bar and in view of bar employees. Police witnesses testified to numerous calls for assistance from the bar and in the area surrounding it. Police also conducted surveillance of the area and reported on the loud and disruptive behavior of persons congregating outside the bar. A videotape of the activity was shown to the court. Finally, several residents of the neighborhood testified that the conduct of the people in and around the bar was noisy, disorderly, vulgar and rude. Traffic, litter, excessive alcohol use and drug activity were all found to be by-products of the bar’s operation.

It was the Commonwealth’s position, and that of many area residents, that the bar brought much of this undesirable behavior into the neighborhood. We find that the testimony by the residents and police, coupled with the drug violations, was more than sufficient to support the injunction. See Graver, 334 A.2d at 670. The fact that Vanity operated in the past without these particular difficulties does not negate the existence of present harm to the neighborhood. Id. (deterioration of business changed law-abiding establishment into one that was offensive to sensibilities of the community). The Commonwealth established a “persistent and continuous disturbing of the peace and good order of the neighborhood”; therefore, the court properly found that a nuisance existed and acted within its power to enjoin its operation. Ness, 513 A.2d at 1068.

Appellant’s seventh claim of error is that the trial court erred in admitting the testimony of the undercover officer because a proper foundation was not laid for his use of notes while testifying. Appellant insists that because the writing used was not an original writing by the officer made at the time of the event, the officer’s testimony should be struck.

Appellant confuses the two methods by which notes are utilized at trial. One method is past recollection recorded whereby a party, who offers a witness with no memory of an event, is permitted to admit into evidence a writing that memorializes the event. In the case of a past recollection recorded, it is the written document itself that is offered into evidence in place of the testimony of the witness, and the party offering the document is required to prove that the document/notes were made at or near the time of the event and while the witness had a clear and accurate memory of it. See Commonwealth v. Cooley, 484 Pa. 14, 398 A.2d 637, 641 (1979).

The other method is called present memory revived or refreshed recollection. In such a case a party offers a witness who generally remembers what occurred but must be aided in his recollection by reviewing notes, or anything else that serves to jog his memory. See Commonwealth v. Canales, 454 Pa. 422, 311 A.2d 572 (1973).

In this case, the undercover officer gave the majority of his testimony by his own memory, but needed to review his notes in order to recall the exact dates of various drug buys and the precise weights of the drugs he purchased. His use of notes for this purpose was proper and it was only his testimony, and not the substance of the notes, that was offered into evidence. See B.D.B., Inc. v. Commonwealth of Pennsylvania Liquor Control Board, 67 Pa.Cmwlth. 72, 445 A.2d 1360, 1362 (1982) (witness had sufficient independent recollection of essential facts and referred to notes only to refresh memory as to details). We find no error related to the officer’s testimony.

Appellant’s last allegation of error, that he was denied due process of law, is without merit. The record reflects that appellant was given a full and fair hearing on the merits of the injunction. Many witnesses were offered by both parties and the trial judge carefully considered the evidence and made his ruling in conformance with the law. We therefore affirm the order of the trial court.

Order affirmed.

      . The statute provides that a bar or tavern may be closed for one year where the court finds that it constitutes a common nuisance.

      . Appellant filed a request for a restraining order before the Honorable Sylvia Rambo of the Middle District of Pennsylvania in an effort to prevent the Commonwealth from going forward. Appellant’s request was denied and he then sought removal of the Commonwealth’s action to federal court. Removal was rejected by Judge Rambo and the case was remanded to the Dauphin County Court of Common Pleas for disposition.

      . The Rule requires that the court make an adjudication that includes a statement of issues, a chronological statement, a discussion of the questions of law and a decree nisi. See Pa.R.Civ.P. 1517(a).

      . The record reflects that neighborhood residents presented the police with a petition, signed by many neighbors, asking that Vanity be closed because it had become a common nuisance.

      . The notes used by the officer were typed by a secretary.


author: HESTER, Judge:

text:
    630 A.2d 1275
    James D. HAYWARD, Jr., Appellant, v. Mary E. HAYWARD.
    Superior Court of Pennsylvania.
    Argued June 30, 1993.
    Filed Sept. 20, 1993.

      Lawrence D. MacDonald, Wilkes-Barre, for appellant.
    Mark A. Ciavarella, Jr., Wilkes-Barre, for appellee.
    Before DEL SOLE, BECK and HESTER, JJ.
   HESTER, Judge:

James D. Hayward appeals from the August 31,1992 decree entered by the Court of Common Pleas of Luzerne County in this divorce action. Appellant asserts the trial court committed reversible error in holding that his disability pension was marital property subject to equitable distribution. He also contends that the court erred in awarding Mary E. Hayward, appellee, one-third of the future disability payments without making a determination of the present value of the pension. We affirm.

The record reveals the following. The parties were married on February 6, 1971. Appellant filed for divorce after appellee left the marital home. Four children were born of the marriage. Appellant was awarded custody of the children who currently range between nine and nineteen years of age. Appellant is a high school graduate who served in the U.S. Navy prior to working as a firefighter for a number of years. In June, 1977, appellant developed nerve problems in his back and was placed on temporary disability until August, 1983. In March, 1984, appellant underwent a spinal fusion to relieve pressure on his back. Although he eventually did return to work, appellant became permanently disabled on August 23, 1987, as the result of lifting a woman suffering a heart attack. He was awarded a disability pension by the City of Wilkes Barre. He received an associate degree in business administration at Luzerne County Community College and presently is furthering his education at College Miserecordia from which he anticipates receiving a bachelor’s degree in business administration with a minor specialization in computer science.

Appellee worked during much of the marriage except while she was pregnant. Currently, she is employed by Muskin’s Pools, a position which she has held for fifteen years. Her employer has entered bankruptcy, and her present employment is insecure. She has little savings of her own and has been forced to borrow money from her father in order to purchase an automobile which she needs for transportation for work.

The principal issue in this appeal is the characterization of appellant’s pension from the City of Wilkes Barre. Appellant contends that the normal requirements to vest fully for a city firefighter’s pension are to complete twenty years of service and to attain the age of fifty. Even though he has not reached the required number of years of service or age, appellant suggests that he has been treated as fully vested due to his disability since he no longer can work as a firefighter. Moreover, he is receiving a reduced amount now rather than larger payments or a lump sum when he attains age fifty. Therefore, he asserts the pension is a disability pension which is not considered marital property subject to division in a divorce.

In support, appellant cites Ciliberti v. Ciliberti 374 Pa.Super. 228, 542 A.2d 580 (1988). In Ciliberti we addressed whether a disability pension of a disabled policeman was divisible as marital property and stated:

We decline to hold that true disability payments are marital property subject to equitable distribution. Such benefits are intended to compensate the employee spouse for lost earning capacity. They are paid in lieu of the earnings which would have been paid to the employee if he or she had been able to work. They replace the future salary or wages which the employee, because of physical or mental disability, will not be able to earn. They are comparable to Workmen’s Compensation disability payments. Post-divorce payments intended to compensate for an inability to work are not marital property.

Id., 374 Pa.Super. at 233, 542 A.2d at 582. Appellant therefore contends the court erred in treating his firefighter pension as marital property to be divided between the parties.

Appellant also cites Malseed v. Malseed, 388 Pa.Super. 214, 565 A.2d 453 (1989), where we addressed the case of a disabled policeman who received disability, retirement, and workmen’s compensation benefits. Following Ciliberti, we determined that the policeman’s pension benefits were not marital property even though the payments he received included both disability and retirement components. Appellant asserts that these cases constitute controlling authority in the instant case. Moreover, he notes that it is improper to circumvent established law in an endeavor to achieve economic self-reliance for appellee. See Berrington v. Berrington, 409 Pa.Super. 355, 598 A.2d 31 (1991) (“moral grounds” are improper basis to determine what constitutes marital property).

We disagree. Appellant’s pension accrued and vested during the marriage. The issue to be decided by the trial court was whether appellant’s pension was a disability pension. It noted that appellant was required to contribute five percent of his salary to his retirement and part of the benefit payments constitute a return of this money. Moreover, appellant received the value of his retirement divided by his statistical life expectancy, and not based on replacing his lost income as a firefighter. He received payments immediately rather than at age fifty to compensate him for no longer being able to work as a firefighter. However, these payments are not contingent upon his complete inability to work and he will not lose these benefits if he earns more in another occupation than he did as a firefighter so that this plan is more like a pension plan than a disability plan. Thus, we agree with the trial court that Ciliberti v. Ciliberti, supra, is distinguishable.

We note that appellant is not precluded from working and the benefits are not measured by his loss of income. Although appellant was able to vest fully his pension in less time and receive benefits prior to age fifty due to his disability, this was intended to compensate him for no longer having the opportunity to work as a firefighter and to accumulate additional years of service, thereby increasing the value of his retirement plan. Nevertheless, these additional years of service would have occurred after the the parties separated and would not be marital property. Appellant therefore has the benefit of the same amount of money due to his disability as he otherwise eventually would have received; he merely receives these benefits at an earlier age. The amount of the payments is reduced to reflect the longer pay-out period and thus, the total value of the benefits was not altered. Further, the time when these benefits were earned has not changed, which was preseparation. As we conclude the trial court’s determination that appellee should share in these payments since they really constitute payments for retirement rather than disability is correct and supported in the record, we do not find error.

Next, appellant argues the trial court erred in dividing the pension without making any determination regarding its present value. Essentially, he argues that appellee should receive a percentage of its present value in the nature of an off-set rather than a percentage of the future pay-outs. Instantly, the court arrived at an award of one-third of the benefits to appellee by calculating the years the marriage lasted (eighteen years) and dividing this number by appellant’s remaining life expectancy. It is matter of discretion with the trial court whether to use the immediate off-set method or award a portion of the benefit payments. See Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985). Also, the fact that appellee is in dire financial straits was a valid factor for the trial court to consider. See Murphy v. Murphy, 410 Pa.Super. 146, 599 A.2d 647 (1991) (equitable distribution is a matter of discretion and will be reversed only for an abuse of that discretion or failure to follow proper legal procedures). We conclude that there is a basis in the record to support the court’s decision to award immediate benefits rather than to determine the present value and off-set it. Consequently, we do not find an abuse of discretion.

Order affirmed.


author: JOHNSON, Judge: DEL SOLE, Judge,

text:
    630 A.2d 1277
    COMMONWEALTH of Pennsylvania, Appellant, v. Harold GERSTNER.
    Superior Court of Pennsylvania.
    Submitted Aug. 16, 1993.
    Filed Sept. 21, 1993.

      Kemal A. Mericli and Scott A. Bradley, Asst. Dist. Attys., Pittsburgh, for Com., appellant.
    Foster A. Stewart, Pittsburgh, for appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

The Commonwealth appeals the trial court’s order dismissing Harold Gerstner on the criminal charges of indecent assault and corruption of minors because the applicable statute of limitations period had been violated. The Commonwealth contends that the trial court erred in finding that the statute of limitations was not tolled pursuant to 42 Pa.C.S. § 5554, because the record established that Gerstner was a person responsible for the child’s welfare. We agree, and reverse.

Gerstner was charged by Information on September 21, 1992, with one count of Indecent Assault, 18 Pa.C.S. § 3126, and one count of Corruption of Minors, 18 Pa.C.S. § 6301. The alleged criminal conduct occurred from May 1, 1984, through December of 1987, when Gerstner served as a babysitter to the two minor children of a friend. On December 30, 1992, the Commonwealth filed a Notification of Commonwealth’s Intention to Proceed Pursuant to the Tolling of Statute Of Limitations Provisions under 42 Pa.C.S. § 5554(3), wherein the Commonwealth averred: the dates on which the criminal conduct occurred; that the criminal complaint had been filed after the statute of limitations had run; the victim was and remains under 18 years of age; and, that Gerstner met the provisions of 42 Pa.C.S. § 5554 because he was the victim’s mother’s paramour and/or was a person responsible for the child’s welfare while he was babysitting the child.

Gerstner filed an Omnibus Pretrial Motion which contained, inter alia, a motion to dismiss based upon the statute of limitations. Gerstner claimed that he did not fall within the exceptions established by § 5554(3), and, as a consequence, the statute of limitations had run.

Hearings on Gerstner’s pretrial motions were held on January 26, 1993, and on February 22, 1993, before the Honorable Joan Orie Melvin, Court of Common Pleas of Allegheny County. At the January 26,1993, hearing, the Commonwealth abandoned the claim that Gerstner and the victim’s mother were paramours, choosing to pursue the claim that Gerstner was responsible for the child’s welfare while he was watching the children. At this hearing, the victim’s mother testified regarding Gerstner babysitting her children during the period in question. Following argument, the court took Gerstner’s motion to dismiss under advisement. On February 22, 1993, the trial court granted Gerstner’s motion to dismiss. This appeal follows.

On appeal, the Commonwealth maintains that the trial court erred when it concluded that Gerstner was not someone responsible for the child’s welfare, and therefore held the statute of limitation was not tolled through application of § 5554(3). Following our examination of the record, we agree.

Section 5554, in pertinent part, states:

§ 5554. Tolling of statute
Except as provided by section 5553(e) (relating to disposition of proceedings within two years), the period of limitation does not run during any time when:
(3) a child is under 18 years of age, where the crime involves injuries to the person of the child caused by the wrongful act, or neglect, or unlawful violence, or negligence of the child’s parents or by a person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parent.

42 Pa.C.S. § 5554 (emphasis supplied). It is without dispute in the record that the victim is under 18 years of age, and that lacking the application of § 5554, the statute of limitations on the alleged criminal acts has run. The critical determination to be made concerns the relationship between Gerstner and the victim.

At the January 26, 1993, hearing, the Commonwealth offered evidence to establish that relationship, i.e., that Gerstner was responsible for the child’s welfare at the time of the alleged criminal acts. The victim’s mother testified that she became acquainted with Gerstner through their mutual participation in an Alcoholics Anonymous program. After some six or eight months, during the summer of 1984, the mother asked Gerstner to babysit her two young daughters, ages 7 and 5. This arrangement lasted approximately three years, until 1987, when the victim was 10 and her sister was 8. Gerstner would babysit the children in his own home “sometimes once a week, sometimes less, sometimes more.” When Gerstner watched the children, neither the victim’s mother nor any other adult was present. Occasionally, the children would remain overnight with Gerstner; sometimes, the mother stayed at Gerstner’s home with her children after Gerstner had watched them. However, most of the time, the two children were alone with Gerstner. The children looked upon Gerstner as a friend of the family. Gerstner was not paid for watching the children.

From these facts, the trial court concluded that Gerstner was not “someone who was responsible for the child’s welfare.” Instead, the trial court held that Gerstner:

... was merely a babysitter. The applicable cases stress that the Defendant exercises control over the victim and has the advantage of an authority figure that somehow deters the child from reporting the abuse. However, from the testimony of the child’s mother, there wasn’t any kind of emotional pressure on the child not to report the incident in a timely fashion. Accordingly, the Commonwealth is barred from prosecution notwithstanding 42 [Pa.C.S.] Section 5554(3). That’s my ruling.

Notes of Testimony, February 22, 1993, page 5. It is apparent from the above statement that the trial court erred in its interpretation of both the statutory requirements and the applicable case law.

In Commonwealth v. Bethlehem, 391 Pa.Super. 162, 570 A.2d 563 (1989), alloc. denied, 525 Pa. 610, 577 A.2d 542 (1990), the child was abused by her uncle at the victim’s home while her parents were home. The trial court held that § 5554(3) tolled the statute of limitations because, inter alia, the child’s parents had placed their trust in the uncle, making him responsible for her welfare. We rejected this analysis, stating “We do not believe that in the context of this statute the phrase, ‘person responsible for the child’s welfare,’ was intended by the legislature to apply to an uncle visiting the victim’s parents’ home.” Id. at 168, 570 A.2d at 566. Noting that the parents were home and in the next room when the sexual assault occurred, we concluded that it was the parents, and not the visiting uncle, who remained the persons responsible for the child’s welfare. “We construe the provision to apply to persons under whose permanent or temporary custody and control the parent(s) or legal guardian(s) have placed a child....” Id.

Unfortunately, the Bethlehem Court then analogized the phrase “a person responsible for a child’s welfare” to “those who stand in loco parentis to the child.” Id. This statement is dicta regarding the interpretation of § 5554(3). When interpreting a statute, the legislative intent controls. 1 Pa. C.S. § 1921. Section 1921 states, in pertinent part:

§ 1921. Legislative intent controls
(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

The term in loco parentis is not part of 42 Pa.C.S. § 5554; in fact, it is a specific, technical phrase used almost exclusively in matters of child custody. See, e.g., Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 241 A.2d 531 (1968); Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977). Had the General Assembly intended to incorporate the term in loco parentis into § 5554, it would have done so. It chose not to do so, instead using the phrase “a person responsible for the child’s welfare.” We are guided by their actions.

Therefore, Bethlehem provides us with a definition of the term “person responsible for the child’s welfare” in the context of § 5554(3) as merely one who has “permanent or temporary custody and control” of the child. Under the record facts of this case, it is apparent that Gerstner, as the babysitter, had temporary custody and control of the child at the time the alleged offenses took place. Hence, it cannot be refuted that Gerstner was responsible for the child’s welfare, and consequently, the statute of limitation period was tolled by § 5554(3).

This is in accord with our holding in Commonwealth v. Powers, 395 Pa.Super. 231, 577 A.2d 194 (1990). There, the victim’s grandfather was convicted of sexually abusing the child while he was babysitting the child when the parents were absent from the home. On appeal, Powers claimed that trial counsel was ineffective for failing to pursue a pretrial motion to dismiss on statute of limitation grounds. In finding that Powers was not prejudiced by counsel’s omission, we specifically stated that as “an adult baby-sitter for absent parents, [Powers] was acting as ‘a person responsible for the child’s welfare’ within the meaning of the phrase in 42 Pa.C.S.A. § 5554(3).” Id. at 235, 577 A.2d at 195 (emphasis in original).

This same logic is applicable in this case. Gerstner was the child’s babysitter, in Ms home, on a regular basis. He had temporary custody and control of both children, being responsible for them for hours at a time. This included those occasions when the young girls stayed in his house overnight, under his care, while the mother was absent. This arrangement lasted approximately three years. It was during these babysitting periods that the alleged criminal incidents took place. The trial court minimized these facts. That the child’s mother and Gerstner were not paramours has no bearing on the determination of whether he was responsible for the child’s welfare while babysitting. We conclude that Gerstner was, at the time of the alleged criminal acts, responsible for the child’s welfare. The trial court erred by finding otherwise.

For the foregoing reasons, we reverse the order of the trial court dismissing the Commonwealth’s case against Gerstner and discharging him. Case remanded for proceedings not inconsistent with this opinion.

Order reversed. Case remanded. Jurisdiction relinquished.

DEL SOLE, J., files a dissenting statement.

DEL SOLE, Judge,

dissenting.

I dissent for the reasons expressed in my Dissenting Opinion in Commonwealth v. Powers, 395 Pa.Super 231, 577 A.2d 194 (1990).


author: OLSZEWSKI, Judge:

text:
    630 A.2d 1281
    COMMONWEALTH of Pennsylvania v. William BOND, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 9, 1993.
    Filed Sept. 22, 1993.

      William Bond, appellant, pro se.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, TAMILIA and BROSKY, JJ.
   OLSZEWSKI, Judge:

Appellant, William Bond, appeals the dismissal of his petition under the Post-Conviction Relief Act without a hearing. We affirm.

In 1984, Bond was convicted of third-degree murder and possession of an instrument of crime in connection with a random shooting that resulted in a death. He appealed to this Court after his appellate rights were reinstated nunc pro tunc, and we affirmed. Commonwealth v. Bond, 366 Pa.Super. 635, 526 A.2d 1230 (1987) (table). Bond filed a pro se PCRA petition and counsel was appointed. After counsel contacted Bond and conducted a meticulous review of his claims in light of the record, she concluded that there were no issues upon which Bond could seek post-conviction relief. She therefore informed Bond and the court of her efforts by drafting a “no merit” letter pursuant to Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). The court conducted an independent review of the record and likewise concluded that Bond raised no cognizable claim. It thus permitted counsel to withdraw and dismissed Bond’s petition without a hearing.

I.

We agree that Bond’s substantive claims are meritless. Bond contends that trial counsel was ineffective for failing to challenge a search warrant as overbroad and for failing to object to inflammatory photographic evidence. These claims were discussed thoroughly by this Court in a memorandum affirming Bond’s judgment of sentence. The issues are therefore “finally litigated” and not subject to further review. 42 Pa.C.S.A. § 9543(a)(3). Moreover, Bond raises several claims in which he further challenges trial counsel’s stewardship. As both prior counsel and the PCRA court correctly concluded, these claims are vague and unsupported by any factual allegations. We may not consider ineffectiveness claims which are made in a vacuum. Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663 (1992).

Bond also contends that appellate counsel was ineffective for failing to challenge the suggestive nature of a photographic array which was used for identification purposes at his preliminary and suppression hearings. These claims are also meritless. It is inappropriate to challenge defects in a preliminary hearing after conviction. Commonwealth v. Worrall, 415 Pa.Super. 478, 609 A.2d 851 (1992). Also, as this Court noted on Bond’s direct appeal, the photographs were not admitted into trial and therefore any alleged error regarding the suppression of the photos is irrelevant. See, Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979). Finally, Bond does not provide any factual basis for his conclusion that the identification procedure was suggestive.

The PCRA court properly permitted counsel to withdraw and dismissed the petition.

II.

Bond’s major complaint on this appeal is that he was not notified of the PCRA court’s intention to dismiss his petition without a hearing. Bond asks us to remand because he contends that had he known of the trial court’s intention, he could have procured new counsel or appeared before the court pro se to further clarify his claims. He points to Rule of Criminal Procedure 1507, which provides:

Rule 1507. Disposition Without Hearing
(a) The judge shall promptly review the motion [for post-conviction relief], any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the motion and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 10 days of the date of the notice. The judge shall either order the motion dismissed, or grant leave to file an amended motion, or direct the proceedings to continue.

Pa.R.Crim.P., Rule 1507, 42 Pa.C.S.A. (emphasis added).

We decline to remand this case. Our Supreme Court and this Court have developed an elaborate set of requirements which must be followed when an attorney wishes to withdraw from representation of a PCRA petitioner who cannot raise a meritorious claim. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, supra. “When, in the exercise of his [or her] professional judgment, PCHA counsel determines that the issues raised under the PCHA are meritless, and when the PCHA court concurs, counsel will be permitted to withdraw, and the petitioner may proceed pro se, or by privately retained counsel, or not at all.” Turner, 518 Pa. at 495, 544 A.2d at 928-929. In order to withdraw successfully, however, counsel must inform the court in a “no-merit letter” the extent of her review, the exact claims raised by the petitioner, and explain why they are meritless. Finley, 379 Pa.Super. at 392, 550 A.2d at 215. The post-conviction court must conduct its own review of the record and agree that the petition is meritless. Id. Once this procedure is completed, the petitioner has received “all the protection incorporated into the right to counsel in collateral proceedings” to which he is entitled, Turner, 518 Pa. at 495, 544 A.2d at 928, and “[n]o further inquiry, notification to the petitioner or a finding that the claims of the petitioner [are] ‘wholly frivolous’ ” is necessary. Finley, 379 Pa.Super. at 393, 550 A.2d at 215.

Here, both counsel and the court scrupulously followed the procedure that we established in Finley. Counsel wrote a detailed “no-merit” letter to the court and forwarded a copy of the letter to Bond. Moreover, the record contains numerous correspondence between Bond and counsel during which counsel explained repeatedly that post-conviction proceedings were not designed to allow convicted persons to reassert claims that have been litigated to finality in the appropriate fora. For Bond to complain now that he received no “notice” of the court’s intention to enter an order dismissing his petition stands the entire Finley procedure on its head. Bond was well aware of the deficiencies in his claims and of counsel’s intention to withdraw. If Bond wished to respond to counsel’s motion, he had every right to do so. He chose not to. Additional notification of the court’s intention to dismiss Bond’s petition without a hearing under Pa.R.C.P. 1507 was unnecessary in this case.

Finally, even if the Court erred in its failure to strictly comply with Rule 1507, Bond suffered no prejudice by this failure. Not only was Bond made aware of counsel’s intention to withdraw, but he was also advised of his appellate rights and his opportunity to pursue an appeal pro se or with privately retained counsel. See, Bond’s brief, Exhibit “H.” He preserved his right to appeal and elected to proceed pro se. We have now reviewed Bond’s claims for the third time and find them meritless. If any meaningful response to the PCRA court’s dismissal were forthcoming, we have not been made aware of it. Bond received every bit of judicial review to which he is entitled. We will not prolong this litigation.

Order affirmed.

      . 42 Pa.C.S.A. § 9541, et seq.

      . Although both Turner and Finley were decided under the Post-Conviction Hearing Act, the procedures for withdrawal established by those cases applies with equal force under the PCRA. Commonwealth v. Blystone, 421 Pa.Super. 167, 617 A.2d 778 n. 3 (1992).

      . Bond also contends that he did not receive a copy of the "no merit” letter and thus does not know why counsel sought to withdraw. Despite our skepticism with regard to this claim, Bond did receive numerous letters from counsel in which she explained exactly why she found his claims meritless. Thus, even if Bond did not receive the "no-merit” letter, his contention that he did not know why counsel sought withdrawal is fantastic.