author: SAYLOR, Judge:

text:
    658 A.2d 1385
    COMMONWEALTH of Pennsylvania v. Shelton MELECHIO, Appellee.
    Superior Court of Pennsylvania.
    Submitted March 15, 1995.
    Filed June 2, 1995.

      Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Thomas W. Moore, Philadelphia, for appellee.
    Before HUDOCK, SAYLOR and HESTER, JJ.
   SAYLOR, Judge:

These appeals by the Commonwealth both challenge an order of the Court of Common Pleas of Philadelphia County granting a motion in arrest of judgment in favor of Appellee, Shelton Melechio.

Following a non-jury trial, Melechio was convicted of third-degree murder and possession of an instrument of crime. The verdict stemmed from an incident in which Melechio, a security guard, shot and killed a seventeen year-old bystander, Damon Hand, during a disturbance that erupted outside a dance hall in Philadelphia. Following his conviction, Melechio filed post-trial motions for an arrest of judgment or a new trial. The trial court granted the motion for a new trial. Subsequently, however, the trial court vacated the order granting a new trial and advised counsel of its intention to arrest judgment on the conviction for third-degree murder. On October 15, 1993, after hearing additional argument, the trial court granted Melechio’s motion to arrest judgment and substituted a conviction for involuntary manslaughter. In arresting judgment, the trial court stated that it had never credited the inculpatory testimony of Michael McCladdie, a security guard at the scene, and found that the remaining evidence was insufficient to support a finding of malice requisite to a conviction for third-degree murder. Melechio was then sentenced to a term of incarceration of one and one half years to five years for involuntary manslaughter and five years probation for possession of an instrument of crime, with the terms running consecutively. These appeals by the Commonwealth followed.

In its single contention on appeal, the Commonwealth claims that the trial court erred in arresting judgment because the evidence was sufficient to support a conviction for third-degree murder.

When ruling on a motion in arrest of judgment, a trial court is limited to ascertaining “the absence or presence of that quantum of evidence necessary to establish the elements of the crime.” Commonwealth v. Johnson, 428 Pa.Super. 494, 502 n. 2, 631 A.2d 639, 643 n. 2 (1993) (en banc), quoting Commonwealth v. Parker, 305 Pa.Super. 516, 523-24, 451 A.2d 767, 770-71 (1982) (collecting cases). At this stage in the proceedings, the trial court is limited to rectifying trial errors, and cannot make a redetermination of credibility and weight of the evidence. Commonwealth v. Johnson, supra, 428 Pa.Super. 494, 631 A.2d 639. The authority of a trial court over a nonjury verdict is no greater than the authority over a jury verdict. Commonwealth v. Meadows, 471 Pa. 201, 205 n. 5, 369 A.2d 1266, 1268 n. 5 (1977); Pa.R.Crim.P. 1102(a).

For purposes of appellate review,

“In passing upon such a motion [in arrest of judgment], the sufficiency of the evidence must be evaluated upon the entire trial record. All of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences arising therefrom. The effect of such a motion is to admit all the facts which the Commonwealth’s evidence tends to prove.” [Citations omitted.] [emphasis in original.]
Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965); Commonwealth v. Winebrenner, 439 Pa. 73, 77-78, 265 A.2d 108 (1970); Commonwealth v. Terenda, 433 Pa. 519, 523, 252 A.2d 635 (1969); Commonwealth v. Hazlett, 429 Pa. 476, 478, 240 A.2d 555 (1968). In order for a trial court to properly grant a criminal defendant’s motion in arrest of judgment on the ground of insufficient evidence, “it must be determined that accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed [the verdict could properly have been based], it would be nonetheless insufficient in law to find beyond a reasonable doubt that the [defendant] is guilty of the crime charged.” Commonwealth v. Blevins, 453 Pa. 481, 483, 309 A.2d 421, 422 (1973); Commonwealth v. Froelich, 458 Pa. 104, 106, 326 A.2d 364 (1974); Commonwealth v. Winebrenner, supra; Commonwealth v. Terenda, supra.

Commonwealth v. Meadows, swpra, 471 Pa. at 205-206, 369 A.2d at 1268.

With these standards in mind, we must determine whether the evidence presented at trial, viewed in the light most favorable to the Commonwealth, was sufficient to support Melechio’s conviction for third-degree murder.

In order to prove that a defendant is guilty of third degree murder, the Commonwealth must establish that the defendant acted with malice. Commonwealth v. Martin, 433 Pa.Super. 280, 640 A.2d 921 (1994). Malice exists where there is a particular ill-will, and also where “there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty.” Commonwealth v. Bigelow, 416 Pa.Super. 449, 454, 611 A.2d 301, 304 (1992), citing Commonwealth v. Smouse, 406 Pa.Super. 369, 594 A.2d 666 (1991).

Here, Melechio was hired as a security guard for a dance that was held at a building in Philadelphia on February 16, 1992. He arrived at the scene at approximately 10:15 p.m. that evening and was armed with a .38 caliber handgun. His license to carry the weapon had expired several months before the incident. At approximately 11:00 p.m., a large crowd had gathered both inside and outside the building. At this time, a crowd near the entrance was attempting to force their way into the building. In order to regain control of the situation, one of the promoters of the dance, James Carr, fired three gunshots into the ceiling of the building from his position inside the entrance. The crowd then dispersed.

As Michael McCladdie, another security guard, exited the building, he saw Melechio holding three linen in custody beside a van while arguing with a fourth individual, Damon Hand. During the argument Melechio unholstered his gun, pointed it at Hand’s head, and threatened to “blow [his] head off.” Melechio then told Hand that he was not serious and, as the victim backed away, assured him that the safety was on. McCladdie told Melechio to “stop playing around,” and to come back inside the building. McCladdie then turned around to reenter the building, when he heard Melechio say “fuck this,” followed by a gunshot. McCladdie saw Melechio standing over the victim’s body while holding a gun. Melechio then holstered his .pistol and walked away from the scene.

At a hearing on post-trial motions, the trial court expressed its concern regarding the credibility of McCladdie’s trial testimony. At that time, the trial court indicated that it had never believed McCladdie’s version of events, finding discrepancies and contradictions in his testimony. The trial court also indicated that it found Melechio’s testimony to be credible, and that this testimony at most supported a conviction for involuntary manslaughter, rather than third-degree murder. Subsequently, the trial court granted Melechio’s motion for a new trial, but later vacated this order, believing that the proper remedy was to grant Melechio’s motion in arrest of judgment and to substitute a conviction for the lesser offense of involuntary manslaughter.

When ruling on a motion in arrest of judgment, a trial court may correct trial errors; however, consideration of the evidence and reconciliation of contradictions and discrepancies in testimony is a matter properly addressed during a non-jury trial, not afterwards during the post-verdict stage. Commonwealth v. Johnson, supra, 428 Pa.Super. at 501, 631 A.2d at 642, citing Commonwealth v. Lemons, 404 Pa. 263, 268, 171 A.2d 785, 788 (1961); Commonwealth v. Nock, 414 Pa.Super. 326, 333, 606 A.2d 1380, 1383 (1992), allocatur denied, 535 Pa. 656, 634 A.2d 219 (1993). Following the rendering of a verdict, the trial court is limited to rectifying trial errors and cannot make redeterminations concerning credibility and the weight of the evidence. Commonwealth v. Johnson, supra, 428 Pa.Super. 494, 631 A.2d 639.

Having reviewed the evidence in the light most favorable to the Commonwealth, we conclude that sufficient evidence was presented at trial to support Melechio’s conviction for third-degree murder, and that in granting Melechio’s motion in arrest of judgment, the trial court engaged in an impermissible reevaluation of the evidence. Commonwealth v. Meadows, supra, 471 Pa. 201, 369 A.2d 1266; Commonwealth v. Slout, 288 Pa.Super. 471, 432 A.2d 609 (1981). Thus, the trial court erred in granting Melechio’s motion for arrest of judgment.

As previously noted, the trial court, believing that the proper remedy was an arrest of judgment, vacated its order granting a new trial. Thus, we remand to allow the trial court to reconsider Melechio’s motion for a new trial in light of our disposition. See, Commonwealth v. Meadows, 471 Pa. 201, 208-209, 369 A.2d 1266, 1270 (1977) (Even if evidence is determined to be legally sufficient to sustain a guilty verdict, a defendant may be given a new trial on the ground that the verdict was against the weight of the evidence).

Accordingly, the order of the trial court granting Melechio’s motion in arrest of judgment is reversed, and the matter is remanded to the trial court for reconsideration of Melechio’s motion for a new trial.

Reversed and remanded.

      . It appears that the Commonwealth filed two separate appeals from the trial court’s October 15, 1993 order arresting judgment. The Commonwealth appeals were filed on October 15, 1993 and October 18, 1993. The Commonwealth has filed identical briefs in each appeal, and since both appeals challenge the same order, they are consolidated.

      . At trial, Melechio testified to a different version of events. Melechio claimed that while standing outside of the building he heard other gunshots, in addition to those fired by Carr, after which he removed his gun, chambered a bullet and released the gun's safety catch. He testified that he carried the gun with his arm bent at the elbow and the weapon pointing into the air. Melechio claimed that he then saw two individuals running around a white van. One of the individuals had his hand inside his jacket, and appeared to be carrying a weapon. Melechio stated that he also observed McCladdie holding a third individual against a nearby van. Melechio claimed that when he attempted to restrain the two individuals, his gun discharged in the ensuing struggle, and the bullet struck and killed a bystander, Damon Hand.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    659 A.2d 563
    COMMONWEALTH of Pennsylvania v. John DIAZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 14, 1995.
    Filed May 16, 1995.

      George H. Newman, Philadelphia, for appellant.
    Mary L. Porto, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before WIEAND, BECK and BROSKY, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence entered following appellant’s convictions for possession of a schedule I controlled substance, ie., marijuana, possession of a controlled substance with the intent to deliver and criminal conspiracy.

Appellant presents the following issues for our review: (1) whether the trial court erred in denying his motion to suppress where there was neither probable cause nor reasonable suspicion: (a) to justify the canine sniff-search and the subsequent search of the U-Haul box; and (b) to detain/arrest appellant; and (2) whether the trial court imposed an illegal sentence. For the reasons set forth below, we affirm the judgment of sentence.

Before addressing these questions, it is necessary to recount the relevant facts of this case. On the morning of October 11, 1992, the narcotics unit of the Philadelphia police were notified by the Houston, Texas Police Department that two Hispanic males, identified as “Jose Soto” and “John Diaz,” were traveling from Houston to Philadelphia via a Continental Airlines flight that was due to arrive at 2:40 p.m. Houston further advised that the males were transporting two U-Haul boxes which were suspected to contain controlled substances. Upon receipt of this information, the police proceeded to the Philadelphia airport.

Officer Kinsky and his trained narcotics dog, Rex, were dispatched to the baggage area and conducted a sniff of the U-Haul boxes and other pieces of luggage from the Houston flight when it arrived. Rex was observed to have a positive reaction to both boxes and this information was relayed to Sergeant Michael Perrone, who conducted a surveillance of the passengers disembarking from the Continental plane.

Sergeant Perrone observed the Hispanic male identified as “Soto” as he specifically matched the description of one of the Hispanic males provided by the Houston police. With respect to the other male identified as “Diaz,” Sergeant Perrone initially thought that appellant, John Diaz, fit the description. However, Sergeant Perrone thereafter observed a third Hispanic male, later identified as Joseph Toledo, Sr., who more closely matched the description of “Diaz.” Accordingly, Sergeant Perrone primarily focused his attention on Soto and “Diaz,” ie., Toledo, Sr. and followed the men to the baggage claim area.

Upon their arrival in the baggage claim area, Soto walked into the U.S. Air baggage claim while Toledo, Sr. went to the Continental baggage claim. Meanwhile, other officers who were stationed outside of the airline terminal saw a fourth male, who was later identified as Joseph Toledo, Jr., park his vehicle in front of the building and enter the terminal. Toledo, Jr. went to the U.S. Air baggage claim and briefly spoke with Soto. Toledo, Jr. then proceeded to the Continental baggage claim and talked to Toledo, Sr. following which he exited the terminal and waited outside.

By this time, the luggage and the U-Haul boxes had been placed on the luggage carousel. Toledo, Sr. walked over to the carousel and stood near Diaz. Toledo, Sr. picked up one of the U-Haul boxes and gave it to Diaz. Toledo, Jr. then reentered the baggage claim and had a brief conversation with Diaz. After Diaz verified his claim of the box, he and Toledo, Jr. exited the terminal and proceeded towards Toledo, Jr.’s vehicle. Diaz and Toledo, Jr. were then stopped by the police officers stationed outside the building.

While Toledo, Jr. and Diaz were being detained, Sergeant Perrone saw Soto leave the U.S. Air baggage area, enter the Continental baggage claim and stand near Toledo, Sr. Soto removed the second U-Haul box from the carousel while Toledo, Sr. picked up a maroon suitcase. After verifying their claim checks, th'e men exited the baggage area. Soto and Toledo, Sr. were then intercepted by Sergeant Perrone and other members of the narcotics team.

Sergeant Perrone apprised all of the men that he suspected them to be transporting controlled substances. As it was apparent that Soto did not understand/speak English, Sergeant Perrone had Officer Carrione translate in Spanish. The men and the U-Haul boxes were, then transported in unmarked police vehicles to an airport police security room. The police obtained Diaz’s and Soto’s written consent to search the boxes. Upon conducting the search, the police discovered 36.2 pounds of marijuana in Diaz’s box and 34.4 pounds of marijuana in Soto’s box. As a result, all of the men were arrested and charged with various offenses arising out of this incident.

Defendants Diaz, Soto and Toledo, Jr. all filed motions to suppress the physical evidence and their statements. A joint hearing on the motions was held in November of 1993. Following the hearing, the trial court granted Toledo, Jr.’s motion but denied Diaz’s and Soto’s motion. Diaz and Soto waived their right to a jury trial. A bench trial was held in March, 1994 following which the defendants were immediately sentenced. Diaz subsequently initiated this timely appeal therefrom.

Appellant initially challenges the trial court’s denial of his suppression motion.

When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. We are bound by the facts as are found and may reverse the suppression court only if the legal conclusions drawn from those facts are in error.

Commonwealth v. Lewis, 535 Pa. 501, 504, 636 A.2d 619, 621 (1994) (citation and quotation marks omitted). Accord Commonwealth v. Peters, 434 Pa.Super. 268, 270, 642 A.2d 1126, 1127 (en banc), allocatur denied, 538 Pa. 668, 649 A.2d 670 (1994); Commonwealth v. Brown, 426 Pa.Super. 601, 603, 627 A.2d 1217, 1217, allocatur denied, 535 Pa. 673, 636 A.2d 632 (1993). We will evaluate the decision of the suppression court and appellant’s argument in accordance with these principles.

Appellant first contends that the evidence should have been suppressed because the Philadelphia police lacked either probable cause or reasonable suspicion to conduct the canine sniff search as well as the subsequent search of the U-Haul box. With respect to this issue, our Supreme Court has recognized that the use of a trained canine to sniff for the presence of drugs constitutes a search under Article I, § 8 of the Pennsylvania Constitution. Commonwealth v. Martin, 534 Pa. 136, 141-142, 626 A.2d 556, 559 (1993) and Commonwealth v. Johnston, 515 Pa. 454, 464, 530 A.2d 74, 79 (1987). A warrantless canine sniff search may be deployed to test for the presence of narcotics in a place where: (1) the police are able to articulate reasonable grounds for believing that drugs may be present in the place they seek to test; and (2) the police are lawfully present in the place where the canine sniff is conducted. Commonwealth v. Martin, 534 Pa. at 141, 626 A.2d at 559; Commonwealth v. Johnston, 515 Pa. at 465-66, 530 A.2d at 79. Where a canine is used to conduct a sniff search of a person, however, a more stringent standard is applied. Thus, the police must have probable cause to believe that the search will produce contraband or evidence of a crime before a canine sniff of a person may be performed. Commonwealth v. Martin, 534 Pa. at 143, 626 A.2d at 560.

To properly apply these concepts here, we must first ascertain whether the canine sniff involved a search of the person or a place. Appellant argues that the instant search was analogous to the search of a person which was conducted in Martin. We disagree and find Martin to be factually distinguishable.

In Martin, the police observed the defendant engaging in suspicious activity in a restaurant in which a satchel was passed between the defendant and his companion. Commonwealth v. Martin, 534 Pa. at 138-140, 626 A.2d at 558. When the defendant and his companions left the restaurant and walked to their car, the police approached the men with their guns drawn and demanded to know what had occurred in the restaurant. Id., 534 Pa. at 140, 626 A.2d at 558. The police then ordered the defendant to drop his satchel following which a trained narcotics dog sniffed it and signalled a positive response. Id. A majority of the Supreme Court viewed the sniff as involving a search of the person rather than a place or object because the defendant had carried the satchel up to the point where he had been compelled to place it on the ground by the police. See id., 534 Pa. at 143, 145-146, 626 A.2d at 560, 561-562.

Unlike the defendant in Martin, appellant did not have actual physical custody of the U-Haul box up until the time of the search. Nor was appellant forced by the police to relinquish possession of the box so that the canine sniff could be conducted. Instead, appellant relinquished custody of the box, albeit temporarily, to the airline personnel for stowage on the plane. The box was still in the physical possession of the airline personnel at the time it was subjected to the sniff search. See Suppression Hearing Transcript (S.H.T.) 11/1/93 at 11, 12, 151 and 154-156 (indicating that boxes and other luggage had been removed from the plane by the airline personnel and transported to the area where it would be unloaded and placed on the conveyor belt leading to the luggage carousel; the boxes and luggage were subjected to the canine sniff before being placed on the conveyor belt). Appellant was completely unaware of the fact that the search was conducted, and therefore, the concerns regarding the invasion/intrusion of the suspect’s person, which were at issue in Martin, simply are not present here. Under these circumstances, we conclude that the facts of this case are more closely aligned with those of Commonwealth v. Johnston rather than those in Martin. Compare Commonwealth v. Johnston, 515 Pa. at 457-458, 530 A.2d at 75 (where a locker at a rental space facility was subjected to a canine sniff with the permission of the rental facility authorities). Accordingly, the Philadelphia police only needed to articulate reasonable grounds that contraband was present in order to conduct the canine sniff. Commonwealth v. Johnston, supra, 515 Pa. 454, 530 A.2d 74. Having made this determination, we must proceed to ascertain whether the police satisfied the requirements of Johnston.

Sergeant Perrone testified that the Philadelphia police received information from the Houston, Texas police that two Hispanic males identified as “John Diaz” and “Jose Soto” were believed to be transporting controlled substances in two U-Haul boxes. S.H.T., 11/1/93 at 8-10, 20, 22; Exhibit D-1 (Police Investigation Report, Form 75-49). The Philadelphia police were also provided with specific descriptions of the men as well as a precise description of and identification numbers pertaining to the U-Haul boxes. S.H.T. 11/1/93 at 8-10 and 12; Exhibit D-l. Sergeant Perrone corroborated the information received from the Houston police as he observed the individuals matching the description disembark from the Continental flight. S.H.T. 11/1/93 at 12-14; Exhibit D-l. While Sergeant Perrone watched the suspects, other officers verified the information pertaining to the U-Haul boxes and relayed this information to Sergeant Perrone. S.H.T. 11/1/93 at 12; Exhibit D-l.

The Philadelphia police were entitled to rely upon the advice and observations supplied by the Houston police, as such information is deemed to be reliable. See Commonwealth v. Weidenmoyer, 518 Pa. 2, 12-13 n. 6, 539 A.2d 1291, 1296 n. 6 (1988) (recognizing that the courts have consistently held that another law enforcement officer is a reliable source). This knowledge, coupled with their own observations and partial verification of the information supplied by Houston, provided the Philadelphia police with articulable reasonable grounds for believing that controlled substances were present in the U-Haul boxes. Moreover, the police were undoubtedly lawfully present in the airport luggage area, as they were there with the permission and assistance of the airport authorities. See S.H.T. 11/1/93 at 151 and 154-155. Because the requisite elements were met, we find that the canine sniff search was valid. See Commonwealth v. Johnston, 515 Pa. at 466-467, 530 A.2d at 80 (canine sniff search was justified where police were lawfully situated at the time of the search and the police articulated a reasonable suspicion that drugs might be located within the storage building).

Appellant next argues that the police lacked probable cause or reasonable suspicion to detain him.

To determine the lawfulness of the police conduct in the instant case, it is necessary to establish the nature of the contact which occurred between the police and appellant] .... Encounters between the public and the police that do not involve a formal arrest may be categorized as mere encounters, non-custodial detentions, and custodial detentions. The term “mere encounter” refers to certain non-coercive interactions with the police that do not rise to the level of a seizure of the person under the [F]ourth [AJmendment____
On the other hand, both non-custodial detentions and custodial detentions are seizures of the person that trigger [F]ourth [A]mendment protection. A non-custodial detention or forcible stop occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. In order to justify a forcible stop under the [Fjourth [Ajmendment, the police must point to specific and articulable facts that, taken together with the rational inferences from those facts, reasonably indicate that criminal activity may be afoot. Custodial detention is a more severe form of government intrusion in which the conditions or duration of the police detention approximate the level of restraint associated with a formal arrest. In order to justify [a] custodial detention, the police must have probable cause to believe that an offense has been or is being committed.
Generally, a seizure was thought to have occurred, for purposes of triggering constitutional protection, if the officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen.... [A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave____ Among the factors the court utilizes in determining, under the totality of the circumstances, whether the detention became so coercive as to constitute the functional equivalent of a formal arrest are: the basis for the detention; the duration; the location; whether the suspect was transferred against his will, how far, and why; whether restraints were used; the show, threat, or use of force; and the methods of investigation used to confirm or dispel suspicions. The fact that the defendant was the focus of the investigation is also a relevant factor in determining whether he was “in custody!.]”. ..

Commonwealth v. Peters, 434 Pa.Super. at 273-276, 642 A.2d at 1128-1130 (citations, quotation marks and emphasis omitted). Accord Commonwealth v. Lewis, 535 Pa. at 508-509, 636 A.2d at 623. Application of these principles persuades us that the encounter between appellant and the Philadelphia police constituted a seizure.

The record reveals that appellant and Toledo, Jr. were approached by Officer Quirk and Officer Mock, who identified themselves as police officers and exhibited their badges. S.H.T. 11/1/93 at 129-130. In response, Toledo, Jr. attempted to run, but lost his balance and fell. Id. at 130. Appellant and Toledo, Jr. were then taken into custody. Id. at 19 and 130. While Officers Quirk and Mock intercepted Diaz and Toledo, Jr., Sergeant Perrone and Officer Jeitner proceeded to stop Soto and Toledo, Sr. Id. at 19. After escorting Soto and Toledo, Sr. outside, the groups converged and Sergeant Perrone identified himself and the reason for the detention. Id. at 19-21. Appellant and his companions, as well as the luggage and the U-Haul boxes, were then transported via unmarked police vehicles to a police security room at the airport. Id. at 21. Sergeant Perrone admitted that appellant and the other men were not free to leave at the time they were intercepted. Id. at 68. Under these circumstances, it is clear that appellant was subjected to a seizure by the police. See Commonwealth v. Lewis, 535 Pa. at 505-506, 509, 636 A.2d at 621-622, 623 (seizure occurred where defendants were confronted by several non-uniformed police officers, the men backed away from the officers until they were against the wall, and the officers began questioning the men; the nature of the confrontation demonstrated a show of authority which constituted a restraint of the defendants’ liberty).

Having clarified the nature of the encounter, we must next determine whether the seizure was justified. To justify a non-custodial detention or forcible stop, the police must point to specific and articulable facts which, taken together with the rational inferences from those facts, reasonably indicate that criminal activity may be afoot. Commonwealth v. Lewis, 535 Pa. at 509, 636 A.2d at 623; Commonwealth v. Peters, supra, 434 Pa.Super. 268, 642 A.2d 1126. To justify a custodial detention, however, the police must have probable cause to believe that an offense has been or is being committed. Commonwealth v. Peters, supra, 434 Pa.Super. 268, 642 A.2d 1126.

[T]he standard for evaluating whether probable cause exists is the “totality of the circumstances” test---- The [benchmark] of a warrantless arrest is the existence of probable cause, namely, whether the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime. It is only the probability, and not a prima facie showing, of criminal activity that is the standard of probable cause for a warrantless arrest. When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element. We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might. Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act....

Commonwealth v. Brown, 426 Pa.Super. at 605-606, 627 A.2d at 1218-1219 (citations and quotation marks omitted).

As previously discussed, the Philadelphia narcotics unit was advised by the Houston police that two Hispanic males identified as Diaz and Soto were suspected of transporting controlled substances to Pennsylvania. S.H.T. 11/1/93 at 9, 20 and 22; Exhibit D-l. Houston further provided specific information regarding the mode of transportation, the descriptions of the individuals, the U-Haul boxes and the suspected contents thereof, as well as the basis for their knowledge. S.H.T. 11/1/93 at 10 and 12; Exhibit D-l. Sergeant Perrone and the other members of his team partially confirmed this information by their own independent observations. S.H.T. 11/1/93 at 12-14. The Philadelphia police also verified the suspected criminal activity by having their own trained narcotics dog, Rex, sniff the U-Haul boxes. Rex exhibited a positive response and thus signalled that controlled substances were present in the boxes. Id. at 12, 151 and 156. Officer Kinsky, Rex’s partner and handler, further testified that he had participated in hundreds of investigations with the dog over a six year period and that Rex “had never been wrong yet.” Id. at 152-153.

In addition to the above observations, Sergeant Perrone saw appellant take possession of the U-Haul box bearing his name and identification/claim numbers from Toledo, Sr., one of the men who matched the description provided by the Houston police. Id. at 17. Appellant then exited the terminal accompanied by Toledo, Jr., who appeared to be acquainted with the suspects, Toledo, Sr. and Soto. Id. at 15-16 and 17-18. When Officer Quirk and Officer Mock approached the men, Toledo, Jr. unsuccessfully attempted to flee. Id. at 130.

Viewing the totality of the above circumstances through the eyes of the trained officer, we conclude that the Philadelphia police officers had probable cause to believe that appellant and his confederates unlawfully possessed controlled substances. See, e.g., Commonwealth v. Johnston, 515 Pa. at 468-470, 530 A.2d at 81-82 (police had probable cause to obtain a warrant to search a rental locker based on the officer’s observations, a positive response to a canine sniff and the defendant’s prior history of narcotics violations); Commonwealth v. Brown, 426 Pa.Super. at 606-607, 627 A.2d at 1219 (probable cause to arrest defendant existed where he was found in the company of a burglary suspect a short distance from the scene of the crime and both men appeared to have been running); Commonwealth v. Frank, 407 Pa.Super. 500, 507, 595 A.2d 1258, 1262 (1991) (flight, coupled with additional facts pointing to a suspect’s guilt, established probable cause to arrest). Accordingly, appellant’s seizure was justified regardless of whether it is characterized as a custodial detention or forcible stop. Because the canine sniff search and subsequent detention of appellant were lawful, the trial court did not err in refusing to suppress the evidence.

In his final allegation of error, appellant challenges the legality of his sentence. Specifically, appellant argues that his maximum sentence is illegal because it violates the provisions of 35 P.S. § 780-113(f)(2) and the holding in Commonwealth v. Bell, 537 Pa. 558, 645 A.2d 211 (1994), cert. denied sub nom. Bell v. Pennsylvania, — U.S. —, 115 S.Ct. 1106, 130 L.Ed.2d 1072 (1995) and Litzenberger v. Pennsylvania, — U.S.—, 115 S.Ct. 1403, 131 L.Ed.2d 290 (1995). We find appellant’s claim to be without merit.

Appellant was sentenced pursuant to the mandatory penalties set forth in 18 Pa.C.S.A. § 7508 which provides, in pertinent part that:

Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply: (1) A person who is convicted of violating section 13(a) ... (30) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, [codified at 35 P.S. § 780-113(a)(30),] where the controlled substance is marijuana shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection: ... (ii) when the amount of marijuana involved is at least ten pounds, but less than 50 pounds ...; three years in prison and fine of $15,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: four years in prison and a fine of $30,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity....

18 Pa.C.S.A. § 7508(a)(l)(ii) (footnote omitted).

Appellant does not dispute the applicability of this provision or the imposition of the mandatory minimum sentence of four years in view of his prior drug-related convictions. Instead, appellant contends that his maximum sentence of eight years exceeds the maximum penalty prescribed in the Controlled Substance, Drug, Device and Cosmetic Act (CSDDCA), which provides that “[a]ny person who violates clause ... (30) of subsection (a) with respect to: ... (2) [a]ny other controlled substance ... classified in Schedule I ... is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not exceeding five years, or to pay a fine not exceeding fifteen thousand dollars ($15,000), or both.” 35 P.S. § 780-113(f)(2). As correctly recognized by appellant, our Supreme Court has held that while the fine provisions of section 7508 prevail over those found in section 113(f)(2), the statutes nonetheless can be consistently applied in regards to the minimum and maximum terms of incarceration. Commonwealth v. Bell, 537 Pa. at 569, 645 A.2d at 217. See also Commonwealth v. Camperson, 437 Pa.Super. 355, 370-372, 650 A.2d 65, 73 (1994) (following Bell). Thus, the statutes can be respectively construed as providing for a mandatory minimum penalty of three years and a maximum penalty of five years where an individual is a first time offender and the amount of marijuana involved is at least ten but less than fifty pounds. Commonwealth v. Bell, supra, 537 Pa. 558, 645 A.2d 211; Commonwealth v. Camperson, 437 Pa.Super. at 371 n. 1, 650 A.2d at 73 n. 1.

However, appellant’s argument ignores the fact that he is not a first time offender. Due to his recidivist status, it is therefore the maximum penalty set forth in section 115 of the CSDDCA, 35 P.S., rather than that contained in section 113(f)(2) which is controlling. Section 115(a) directs that “[a]ny person convicted of a second or subsequent offense under clause (30) of subsection (a) of section 13 of this act[, ie., 35 P.S. § 780-113(a)(30) ] ... may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.” 35 P.S. § 780-115(a). Consequently, the maximum possible penalty applicable to appellant was a period of up to twice the five year term which was otherwise authorized, or ten years.

Utilizing the rationale applied in Bell and Camperson, section 7508 and section 115(a) can be construed together to provide for a four year minimum and ten year maximum period of incarceration. Appellant received a maximum sentence of eight years, a term which was well within the maximum applicable statutory limit. Appellant’s sentence therefore was not unlawful. Because none of appellant’s claims necessitates the grant of appellate relief, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(16) (defining the crime of possession); 35 P.S. § 780-104(l)(iv) (classifying marijuana as a controlled substance).

      . 35 P.S. § 780-113(a)(30).

      . 18 Pa.C.S.A. § 903(a).

      . “Soto” was identified as a Hispanic male in his late twenties who was approximately 5'10" in height and had a thin build. “Soto” was described as wearing a green Boston Celtics baseball cap and black pants and carried a brown bag. The individual identified as "Diaz” was described as a Hispanic male in his late forties, who was heavyset and approximately 5'8" in height. “Diaz" was described as wearing grey pants, a black shirt and a black coat.

      . The U-Haul boxes were marked with identification numbers and the names of the respective owners. Soto had Box no. 4539 and Diaz had Box no. 1929. The Houston police had their trained narcotics dog, Robie, conduct a canine sniff of the U-Haul boxes: Robie was observed to have given a positive response thereto.

      . This man was later identified as Carlo Soto.

      . When the officers approached and identified themselves, Toledo, Jr. attempted to run but lost his balance and fell. As a result, appellant and Toledo, Jr. were taken into custody.

      . Diaz’s consent was in English. Soto’s consent was written in Spanish except for a few terms describing the items to be searched and seized, which were written in English. Following the discovery of the marijuana, Diaz and Toledo, Jr. each gave written statements to the police in which they explained their role in the criminal enterprise. Soto declined to make a statement. Based on the information contained in Toledo, Jr.’s statement, the police obtained Toledo, Jr.’s and/or Toledo, Sr.’s consent to search á residence located at 2542/2544 North Mascher Street. Toledo, Jr. cooperated and participated in the search, which yielded additional quantities of marijuana and plastic bags. The propriety of the search of the Toledos’ residence is not at issue in the instant appeal and will not be further discussed.

      . The charges against Toledo, Sr. were later dismissed.

      . The Commonwealth appealed the trial court’s ruling with respect to defendant Toledo, Jr.; a panel of this court recently reversed this determination in an unpublished memorandum. See Commonwealth v. Toledo, Jr., at docket no. 00174 Philadelphia 1994 (filed April 18, 1995).

      . The transcript of this proceeding is identified as having occurred on May 1, 1994. This date appears to be erroneous in light of other documents which suggest that the trial and sentencing occurred on March 1, 1994.

      . Diaz was sentenced to a period of four (4) to eight (8) years with respect to his convictions for possession/possession with the intent to deliver. A concurrent period of two and one-half (2|i) to five years was further imposed for the conspiracy conviction.

      . Soto has likewise appealed; his conviction was affirmed in an unpublished memorandum. See Commonwealth v. Soto, at docket no. 00914 Philadelphia 1994.

      . Appellant indicates that our scope and standard of review is plenary. Appellant’s Brief at 2. Appellant’s bald conclusory statement does not satisfy the requirement set forth in Pa.R.A.P., Rule 3518(a), 42 Pa. C.S.A. Moreover, the scope/statement of review suggested by appellant is not correct. However, we will disregard this defect as appellee has supplied us with the appropriate scope/standard and because it does not substantially impede our ability to engage in effective and meaningful review of appellant’s claims. See Pa.R.A.P., Rule 105(a), 42 Pa. C.S.A. (permitting this court to disregard the requirements of the appellate procedural rules).

      . However, a canine sniff of luggage in a public place is not deemed to be a search within the meaning of the Fourth Amendment of the United States Constitution. United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110, 121 (1983); Commonwealth v. Martin, 534 Pa. 136, 142, 626 A.2d 556, 559 (1993) and Commonwealth v. Johnston, 515 Pa. 454, 461, 530 A.2d 74, 77 (1987).

      . The Houston police conducted a canine sniff search of the boxes and had observed a positive reaction by their own trained narcotics dog, Robie. S.H.T. 11/2/93 at 213-214; Exhibit D-l (Police Investigation Report, Form 75-49). Appellant does not question the legality of the Houston canine sniff or its effect, if any, upon the validity of the subsequent canine sniff conducted in Philadelphia. We thus will not discuss these matters. We nonetheless note that while Texas recognizes that a canine sniff is not a search for Fourth Amendment purposes, the Texas courts have not yet decided whether a canine sniff constitutes a search under Article I, § 9 of the Texas Constitution. See Crockett v. State, 803 S.W.2d 308, 310 n. 5 (Tex.Crim.App.1991). However, the Texas Court of Appeals has held that Article I, § 9 of the Texas Constitution should be interpreted in a manner consistent with the Fourth Amendment of the United States Constitution. See Aitch v. State, 879 S.W.2d 167, 172 (Tex.Ct.App.1994) (review refused 11/16/94). It thus appears that Texas would not consider a canine sniff to be a search under the Texas Constitution.

      . The parties dispute whether Exhibit D-l was admitted into evidence. With respect to this issue, the record discloses that D-l was specifically utilized by both the prosecutor as well as by defense counsel for Toledo, Jr., Mr. Silverstein, during their respective interrogations of the witnesses and closing argument. See S.H.T. 11/1/93 at 39-41, 47, 49-50, 54-55, 103, 135-137, 145 (in which Mr. Silverstein utilized the report during his cross-examination of the police officers); id. at 72 and 211-214 (where the prosecutor referred to the exhibit on re-direct and in closing argument). Both the Commonwealth and Mr. Silverstein moved for the admission of the exhibits into evidence. S.H.T., 11/1/93 at 157; S.H.T. 11/2/93 at 173. None of the parties objected to the admission of any of the exhibits when they were moved into evidence or at any other time. However, the record is silent as to whether the exhibits were in fact deemed admitted since the trial court did not expressly state that the exhibits were admitted or excluded. The record further reveals that neither appellant nor Soto requested that the evidence be limited for purposes of admissibility, i.e., they did not ask the trial court to only consider the exhibit for cross-examination/impeachment purposes or to only consider it with respect to co-defendant Toledo, Jr. We also note that the exhibit was included in the certified record submitted to this court.
      Based on the above circumstances, we conclude that exhibit D-l may be properly considered as admissible evidence. Although the trial court did not explicitly state on the record that the exhibits were admitted, none of the parties objected to the proposed admission. Moreover, we can discern no basis upon which the exhibit could have been properly excluded, as it appears to be relevant, competent and probative of the issues that were germane to the suppression hearing. See Commonwealth v. Crews, 536 Pa. 508, 523, 640 A.2d 395, 402 (1994) (the admissibility of evidence must start with a threshold inquiry as to its relevance and probative value); Commonwealth v. Davis, 381 Pa.Super. 483, 491, 554 A.2d 104, 108 (1989), allocatur denied, 524 Pa. 617, 571 A.2d 380 (1989) (the basic requisite for the admissibility of any evidence in a criminal case is that it be competent and relevant). Appellant has not referred us to any authority which requires an exhibit, which is moved into evidence and to which no objection is raised, to be deemed excluded unless the trial court specifically states otherwise on the record. Nor has our own research uncovered any such authority. Rather, the rule in this Commonwealth is that evidence which is introduced without objection is treated as though it were admissible and given its natural probative value. See L. Packel & A. Poulin, Pennsylvania Evidence § 103 at 7 (1987). See also Commonwealth v. Boden, 399 Pa. 298, 308, 159 A.2d 894, 899, cert. denied, 364 U.S. 846, 81 S.Ct. 89, 5 L.Ed.2d 70 (1960) (hearsay testimony was treated as having been properly admitted and was considered as fully and with the same probative value as direct evidence where no objection was made thereto by the defendant). We accordingly find that in light of the facts presented here, exhibit D-l must be treated as admissible evidence and accorded its natural probative value.
      Appellant further suggests that even if the exhibit is deemed admissible, it should not be utilized against him as it was introduced by another co-defendant only for purposes of impeachment and cross-examination. Appellant again fails to refer us to any authority which would support this position, nor has our own research uncovered such authority. We nonetheless are not persuaded that appellant’s assessment is correct. The record reveals that while the suppression hearing was based on the individual suppression motions filed by each defendant, the defendants joined in each other’s motions and all sought suppression of the evidence on the same grounds. S.H.T. 11/1/93 at 3-4 and 5; S.H.T. 11/2/93 at 170, 197-198 and 203-205. Review of the suppression hearing transcript thus demonstrates that all of the defendants presented a unified defense in attacking the validity of the searches. The Commonwealth similarly applied the evidence justifying the canine sniff to all of the defendants. Given the course of the events which led to the canine sniff and the manner in which the Commonwealth and the defense proceeded, we discern no logical or compelling reason for limiting the scope and purpose of the exhibit. Moreover, neither appellant nor Soto objected to the evidence. Nor did they at any time suggest that the suppression court could only consider the evidence for a limited purpose. If the defendants wanted the evidence to be limited in scope, then it was incumbent upon them to bring this matter to the trial judge’s attention. Since they failed to do so, the objection has been waived. See, e.g., Commonwealth v. Butts, 495 Pa. 528, 534-535, 434 A.2d 1216, 1219 (1981); Commonwealth v. Boden, 399 Pa. at 308, 159 A.2d at 899-900; Commonwealth v. Turner, 390 Pa.Super. 216, 221-222, 568 A.2d 622, 624 (1989), allocatur denied, 527 Pa. 645, 593 A.2d 418 (1990). Even were we to assume, purely for the sake of argument, that the exhibit is not properly in evidence, the record contained sufficient reference to the nature of the information relayed by the Houston police to reasonably justify the canine sniff search by the Philadelphia police.

      . Appellant refers to Commonwealth v. Lewis, supra, 535 Pa. 501, 636 A.2d 619 in support of his claim that probable cause/reasonable suspicion was lacking because the police utilized a drug courier profile. Notwithstanding appellant’s assessment and the trial court’s statements to the contrary, the instant case simply does not involve the use of a drug courier profile, as occurred in Lewis, as justification for the detention. Unlike the facts in Lewis, the police here were not merely looking for and stopping individuals who fit the drug courier profile. Instead, the Philadelphia police focused upon appellant and his companions based on the reliable and highly detailed information provided by the Houston police. Appellant was thus stopped because of the canine sniff and confirmation of the other information by the Philadelphia police and not because of any potential similarity to a drug courier profile.


author: DEL SOLE, Judge: HOFFMAN, Judge,

text:
    659 A.2d 573
    COMMONWEALTH of Pennsylvania v. Monique Lorraine CORTES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 27, 1995.
    Filed May 23, 1995.

      Donald E. Lewis, Meadville, for appellant.
    Mark D. Waitlevertch, Asst. Dist. Atty., Meadville, for the Com., appellee.
    Before DEL SOLE, SAYLOR and HOFFMAN, JJ.
   DEL SOLE, Judge:

Appellant was convicted and sentenced for delivery of a controlled substance, possession with intent to deliver a controlled substance, and criminal conspiracy. She presents two issues challenging the sufficiency of the evidence on the possession crimes and the conspiracy. In reply, the Commonwealth claims these issues are waived. We reject the waiver argument and affirm the judgment of sentence.

The jury’s verdict of guilt was rendered on March 16, 1994, and following Appellant’s sentencing, an appeal was filed May 25, 1994. The trial court, exercising its authority under Pa.R.App.P. 1925, entered an order directing the Appellant file a concise statement of matters complained of on appeal within fourteen days, but Appellant failed to file this statement. The Commonwealth argues that Appellant’s failure to comply with the Rule 1925 request resulted in a waiver of all issues on appeal.

Rule 1925(b) of the Rules of Appellate procedure provides:

The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matter complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

In the past, this court has found issues to have been waived where no 1925(b) statement was filed or where an issue was not included in a filed statement. Commonwealth v. Phillips, 411 Pa.Super 329, 601 A.2d 816 (1992), affirmed, 534 Pa. 423, 633 A.2d 604 (1993). However, the amendments to the Rules of Criminal Procedure, which became effective for determinations of guilt occurring after January 1, 1994, require reevaluation of this waiver concept.

Rule 1410, in particular, changes criminal post-trial proceedings in various ways. The former Post-verdict Motion and the Motion to Modify Sentence are now combined' into one Post-sentence Motion. Its filing in summary cases is now eliminated. Also, Post-sentencing motions are optional and a direct appeal following sentencing is permitted. The concept of waiver for failing to raise an issue in a Post-sentence motion has been abrogated. Rule 1410(B)(1)(c) states:

Issues raised before or during trial shall be preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues.

This change has been referred to as eliminating the “double waiver” doctrine.

Prior practice required that to preserve an issue for appeal, the matter must have been raised initially when it occurred either before or during trial, and then be included in the Post-verdict Motion. Failure to include an issue in the Post-verdict Motion resulted in it being waived on appeal and often led to subsequent attacks on the conviction claiming counsel’s ineffectiveness. New Rule 1410 was intended to eliminate this cumbersome process and allow the first appeal to address the issues properly raised before and during trial.

To accept the Commonwealth’s argument that failure to include an issue in a 1925(b) statement automatically results in waiver on appeal would be a return to the “double waiver” concept. This we believe is contrary to the policy embodied in Rule 1410 and, therefore, we refuse the Commonwealth’s invitation to breathe new life into “double waiver.” Admittedly, no statement of matters complained of on appeal was filed. However, that does not prevent us from addressing the issues raised by Appellant. Both issues deal with sufficiency of the evidence to sustain the convictions, and are easily resolved by a review of the record. The lack of the 1925(b) statement does not prevent meaningful appellate review. We see no reason to invite a collateral attack claiming ineffectiveness, which 1410 seeks to eliminate, adding another layer of unnecessary judicial activity and delay.

Recently, in Commonwealth v. Donnelly, 439 Pa.Super 70, 653 A.2d 35 (1995) we held that Rule 1410 has not relieved trial courts from the obligation of filing 1925 opinions. However, where the issues raised could be reviewed without the benefit of a trial court opinion, we would do so. This avoids the delay necessitated by remanding the matter for an opinion. The same policy considerations apply where the issues raised on appeal were not first presented to the trial judge in either a Post-sentencing Motion or in a 1925 statement. Under these circumstances waiver or remand is no longer automatic an.d this court will discharge its appellate function unless the lack of a trial court opinion addressing a specific issue raised on appeal prevents meaningful review.

Turning to the issues raised by Appellant, we conclude that the evidence was sufficient to sustain both convictions. She claims that she was merely present during the sale of drugs to an undercover officer, not a participant. The record establishes that she acted as the interpreter between the buyer and seller. She was the tenant of the apartment where the transaction occurred, and raised questions before the sale about whether the buyer was a police officer. After the sale, she sought to arrange future dealings with the officer. Given this testimony, there was sufficient evidence for the jury to convict the Appellant on all charges.

Judgment of sentence affirmed.

Concurring opinion by HOFFMAN, J.

HOFFMAN, Judge,

concurring:

The majority concludes that:

[i]n the past, this court has found issues to have been waived where no 1925(b) statement was filed or where an issue was not included in a filed statement____ However, the amendments to the Rules of Criminal Procedure, which became effective for determinations of guilt occurring after January 1, 1994, require re-evaluation of this waiver concept.

Cortes, supra 442 Pa.Super. 258, 659 A.2d 573. I cannot agree with my colleague’s position that the creation of the new Pa.R.Crim.P. 1410 may have an effect on the waiver provision of Appellate Rule 1925(b). The plain reading of Rule 1410 suggests only that the filing of post-sentencing motions are now optional and that the failure to file these motions will no longer result in the waiver of issues on appeal. See 1 Pa.C.S. § 1901 (where language of statute is clear and unambiguous, judiciary must read its provisions in accordance with their plain meaning and common usage). Furthermore, after an extensive review of the comment and the Committee explanatory report to the changes in Rule 1410, I find no evidence that the Supreme Court intended this rule to supercede the waiver provision provided by Appellate Rule 1925(b).

Accordingly, for these reasons, I concur.

      . We have previously stated that the rules of statutory construction may be applied to interpret the rules of criminal procedure. Commonwealth v. Hightower, 438 Pa.Super. 400, 652 A.2d 873, 873 n. 1 (1995) (citing Pa.R.Crim.P. 2).


author: CIRILLO, Judge:

text:
    659 A.2d 575
    Margaret CARDAMONE v. Bernadette ELSHOFF, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1995.
    Filed May 24, 1995.

      Petra F. Hoeschele, Philadelphia, for appellant.
    Robert Katzenstein, Philadelphia, for appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   CIRILLO, Judge:

Bernadette Elshoff (Mother) appeals from an order entered in the Court of Common Pleas of Philadelphia County, awarding primary physical custody of Jennifer Elshoff (Daughter) to Margaret Cardamone (Maternal Aunt), and awarding partial physical custody of Daughter to Mother. We affirm.

Daughter was born on March 27, 1980. In 1985, Mother married Theodore Rafalko (Stepfather). As a result of that marriage, Mother gave birth to her second child, Gregory (Brother). Mother and Stepfather separated numerous times due to marital problems and substance abuse problems. Because of these separations, Mother and the children were forced to periodically move in with various family members.

Some time in March of 1992, Daughter contacted Maternal Aunt and asked if she could reside with Maternal Aunt, Maternal Aunt’s husband (Uncle), and Theresa Elshoff (Maternal Grandmother), all of whom reside in the same household in Philadelphia. The following month, in April of 1992, Daughter moved into Maternal Aunt and Uncle’s home. Presently, Daughter is fifteen years old and has been residing in Maternal Aunt’s residence for approximately three years. Mother, Stepfather, and Brother currently reside in Scranton, Pennsylvania.

In June of 1992, while Daughter was in the care of Maternal Aunt, Maternal Aunt filed a petition to confirm custody of Daughter. In August of 1992, Mother filed an emergency petition, seeking to regain physical custody of Daughter from Maternal Aunt. Shortly thereafter, the Honorable Nicholas Kozay, Jr., consolidated the petitions and entered a temporary order, pending a full custody hearing, granting physical custody of Daughter to Maternal Grandmother.

The matter was continued on several occasions. On September 17, 1993, a full hearing was held before the Honorable Frank M. Jackson on the cross-petitions for custody. The trial court was presented with the testimony of Mother, Maternal Aunt, Uncle, Maternal Grandmother, and Stepfather. In addition, in the presence of only the attorneys, the trial court examined Daughter in camera. At the conclusion of the testimony, Judge Jackson entered a temporary order, maintaining the status quo and giving Mother partial custody on alternating weekends. Pursuant to the order, Mother was required to make Daughter’s travel arrangements to and from Scranton.

On October 14, 1993, Judge Jackson entered an order, holding the cross-petitions for custody in abeyance until Daughter completed her last year in grammar school. As such, a hearing was scheduled for June 17, 1994. In the interim, temporary physical custody of Daughter remained with Maternal Aunt. Mother filed a notice of appeal from Judge Jackson’s temporary order. This court dismissed Mother’s appeal via a per curiam order because Mother failed to file her brief in a timely fashion. Pa.R.A.P. 2188.

On August 1, 1994, the trial court again heard extensive testimony from all of the participants and again interviewed Daughter in camera, then fourteen years old. On August 31, 1994, the Honorable Frank M. Jackson entered an order, awarding primary physical custody to Maternal Aunt, and granting partial physical custody to Mother. Specifically, Mother was awarded partial physical custody of Daughter for one-half of the winter and spring vacations, as well as six weeks during the summer school vacation. This timely appeal followed. On appeal, Mother presents the following questions for this court’s consideration:

(1) Whether the trial court erred in its failure to dismiss a third party petition for custody where the third party did not have in loco parentis status to maintain a custody action?
(2) Whether the trial court erred in ruling that the record supports a finding by convincing evidence that Mother’s prima facie right to custody should be forfeited in the child’s best interests?
(a) Whether the trial court erred in basing its decision on mother’s past history rather than on her present capabilities to care for the child?
(b) Whether the trial court committed error in according the child’s preference sufficient weight to overcome Mother’s prima facie right to custody when the record as a whole does not support such a finding?
(c) Whether the trial court erred in its failure to consider the well established policy within the law to keep siblings living together whenever possible?

Before we address the merits of Mother’s contentions, we must first note this court’s standard of review of child custody orders:

The scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it---- However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination.... Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

Kaneski v. Kaneski 413 Pa.Super. 173, 604 A.2d 1075 (1992) (citing McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992)).

The Fourteenth Amendment to the United States Constitution provides that “[n]o state shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend XIV, § 1. While there is no mention of family, a parent’s right to child custody, or the protection of a child’s welfare in this amendment or elsewhere in the Constitution, the United States Supreme Court has constitutionally protected each of these interests as a fundamental liberty under the Fourteenth Amendment.

Pennsylvania courts have similarly recognized that the law protects the natural parent’s relationship with his or her child and will not interfere unnecessarily with that relationship, even at the expense of estrangement to the extended family. See Jackson v. Garland, 424 Pa.Super. 378, 622 A.2d 969, 971 (1993) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) and Weber v. Weber, 362 Pa.Super. 262, 524 A.2d 498 (1987)). In fact, our General Assembly has specifically declared that:

[I]t is the public policy of this Commonwealth, when in the best interest of the child, to assure reasonable and continuing contact of the child with both parents after separation or dissolution of the marriage and the sharing of the rights and responsibilities of child rearing by both parents....

23 Pa.C.S.A. § 5301.

In furtherance of this public policy, the legislature has specified limited circumstances in which governmental intrusion into the family is warranted. See 42 Pa.C.S.A. § 6351-52 (outlining procedures for initiating dependency proceedings); 23 Pa.C.S.A. § 2511 (involving the involuntary termination of parental rights); 23 Pa.C.S.A. § 6301 et seq. (taking an abused child into protective custody); 23 Pa.C.S.A § 5311-13 (concerning grandparents’ rights to visitation); 23 Pa.C.S.A. § 5301 et seq. (concerning custody and visitation rights between parents in a divorce action); see also Jackson, supra, 424 Pa.Super. 378, 622 A.2d 969.

Protecting family unity and the parent/child relationship, however, is becoming increasingly difficult. The traditional American family is facing problems that were virtually nonexistent one hundred years ago. Divorces are on the rise, and expecting parents increasingly choose not to get married. Unfortunately, children are frequently caught in the middle of their parents’ difficulties — e.g., alcoholism, drug addiction, domestic violence, homelessness, separation, divorce, etc. As a result of these difficulties, many children reside with, and form strong emotional attachments and relationships with, persons other than their natural or biological parents. An obvious problem arises when one or both of the natural parents later seek to regain custody of the child from the parental surrogate. In many cases, however, the third party or non-parent has assumed the role of “psychological parent” to the child and, hence, is unwilling to transfer custody to the biological parent. In these situations,- the judicial system inherits the confounding task of deciding which “parent” will receive custody.

In Pennsylvania, there are three types of custody disputes: parent versus parent; parent(s) versus state; and parent(s) versus third party. In re Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). Persons other than natural or biological parents are deemed to be “third parties” for purposes of custody disputes. Gradwell v. Strausser, 416 Pa.Super. 118, 121-23, 610 A.2d 999, 1001 (1992) (citing Hernandez, supra, 249 Pa.Super. 274, 376 A.2d 648 and Commonwealth ex rel. Witherspoon v. Witherspoon, 252 Pa.Super. 589, 384 A.2d 936 (1978)).

In determining the appropriate standard for adjudication of custody disputes between a parent or parents and a third party, the Pennsylvania Supreme Court, in Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980), adopted the carefully fashioned principles set forth by this court in Henhandez, supra, 249 Pa.Super. 274, 376 A.2d 648.

Although the best interest of the child remains of paramount concern, the parent has ‘a prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party ... the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.

Hernandez, 249 Pa.Super. at 286, 376 A.2d at 654 (emphasis added). In adopting these principles, the Court in Ellerbe noted that this standard does not preclude an award of custody to the non-parent, but rather “simply instruct[s] the hearing judge that the non-parent bears the burden of production and the burden of persuasion and that the non-parent’s burden is heavy.” Ellerbe, 490 Pa. at 367-68, 416 A.2d at 514. Interestingly, the courts have differentiated between non-related third parties and related third parties, but have declined to draw a distinction in the burden of proof as to each. Hernandez, 249 Pa.Super. at 287, 376 A.2d at 654; see also Commonwealth ex rel. Patricia L.F. v. Malbert J.F., 278 Pa.Super. 343, 420 A.2d 572 (1980).

In Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980), the Court once again recognized the importance of parenthood as a factor in determining the best interests of the child. Importantly, however, the Court noted that “other factors which have significant impact on the well-being of the child can justify a finding in favor of the non-parent, even though the parent has not been shown to have been unfit.” Id. at 328, 421 A.2d at 161. Expounding upon this, this court, in Snarski v. Krincek, 372 Pa.Super. 58, 538 A.2d 1348 (1988), enumerated several considerations which must be weighed against one’s parental status in making custody determinations:

First, although parenthood is a highly important factor, it should not be accorded determinative weight in our decision. Other factors, like the value of stability, are also to be accorded great weight. Indeed, in Ellerbe itselff,] the Supreme Court affirmed the trial court’s grant of custody to grandparents over a parent of the subject child for the very reason that the child had developed a stable relationship with the grandparents and had a stable environment with them. The same basic situation was presented in Albright, and once again the grandparents were given custody. Second, the Hernandez standard is first and foremost an allocation of the burden of proof to the third parties, but it does not impose on them the burden of showing that the parent' is unfit. Thus, the issue centers on the child, and not on the parent.

Snarski, 372 Pa.Super. at 77, 538 A.2d at 1358 (citations omitted); see also Vicki N. v. Josephine N., 437 Pa.Super. 166, 649 A.2d 709 (1994).

Again, parenthood alone is insufficient to defeat a custody claim raised by a non-parent. The most important issues in a custody dispute are the child’s physical, intellectual, moral, and spiritual well-being. Dorsey v. Freeman, 438 Pa.Super. 236, 239, 652 A.2d 352, 353 (1994) (citing Nonnenman v. Elshimy, 419 Pa.Super. 597, 615 A.2d 799 (1992) and Warren v. Rickabaugh, 410 Pa.Super. 431, 600 A.2d 218 (1991)).

[T]he fact that the best interests of the child is the paramount consideration is ... beyond peradventure____ Indeed, even the rights of natural parents are subordinate to the child’s best interest.

Karner v. McMahon, 433 Pa.Super. 290, 301, 640 A.2d 926, 932 (1994) (citing Constant A. v. Paul C.A, 344 Pa.Super. 49, 496 A.2d 1 (1985)) (emphasis added).

Absent a prima facie right to custody, however, a third party lacks standing to even seek custody as against the natural parents. Rosado v. Diaz, 425 Pa.Super. 155, 158-60, 624 A.2d 193, 195 (1993); Gradwell, 416 Pa.Super. at 123-25, 610 A.2d at 1002; see also Helsel v. Blair County Children & Youth Services, 359 Pa.Super. 487, 519 A.2d 456 (1986). This is the case because a biological parent’s prima facie right to custody should not be subject to challenge without a clear and convincing showing that the child is not receiving proper parental care. Gradwell, 416 Pa.Super. at 123-25, 610 A.2d at 1002 (citing Helsel, 359 Pa.Super. at 496, 519 A.2d at 460).

The appropriate manner for a third party to challenge child custody is through dependency proceedings. See 42 Pa.C.S.A. § 6301 et seq.; Gradwell, supra, 416 Pa.Super. 118, 610 A.2d 999; Helsel, supra, 359 Pa.Super. 487, 519 A.2d 456. In a dependency proceeding, the burden is on the party seeking to take the child from the parents to show by clear and convincing evidence that the child is dependent. 42 Pa.C.S.A. § 6341(c); Helsel, supra, 359 Pa.Super. 487, 519 A.2d 456. See also Ellerbe, supra, 490 Pa. 363, 416 A.2d 512; Commonwealth ex rel. Kraus v. Kraus, 185 Pa.Super. 167, 138 A.2d 225 (1958); cf. In re Miller, 380 Pa.Super. 423, 552 A.2d 261 (1988) (holding that, under Juvenile Act, child may be adjudicated dependent when it is established by clear and convincing evidence that the child is without proper parental care and such care is not immediately available). It is only after a child is found dependent that a court will engage in custody proceedings, where the standard is the best interests of the child. Bishop v. Piller, 399 Pa.Super. 52, 55-58, 581 A.2d 670, 672-73 (1990). Thus, unless the natural parents’ prima facie right to custody is successfully overcome via the dependency proceedings, this court cannot confer standing upon third parties to interfere with the parent/child relationship. 42 Pa.C.S.A. § 6301 et seq.; Gradwell, supra, 416 Pa.Super. 118, 610 A.2d 999.

The exception to this third-party-lack-of-standing-preclusion is proof that such a “party stands in loco parentis, that is, where he or she has ‘assumed obligations incident to the parental relationship.’ ” Gradwell, 416 Pa.Super. at 123, 610 A.2d at 1002 (citing Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987); Jones v. Stone, 343 Pa.Super. 416, 495 A.2d 205 (1985); Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509, 444 A.2d 1299 (1982) and Commonwealth ex rel. Patricia L.F. v. Malbert J.F., 278 Pa.Super. 343, 420 A.2d 572 (1980)). The rights and obligations arising out of that relationship are exactly the same as between parent and child. Gradwell, 416 Pa.Super. at 125-27, 610 A.2d at 1003 (citing Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977)).

The phrase “in loco parentis ” refers to a person who puts himself in the situation of assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of “in loco parentis ” embodies two ideas: first, the assumption of a parental status, and second, the discharge of parental duties.

Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968). See also Vicki N. v. Josephine N., 437 Pa.Super. 166, 649 A.2d 709 (1994) (maternal aunt); Karner v. McMahon, 433 Pa.Super. 290, 640 A.2d 926 (1994) (stepfather); Rosado v. Diaz, 425 Pa.Super. 155, 624 A.2d 193 (1993) (de facto stepmother); Wilson v. Wilson, 406 Pa.Super. 473, 594 A.2d 717 (1991) (foster parent); Mitch v. Bucks County Children & Youth Social Service Agency, 383 Pa.Super. 42, 556 A.2d 419 (1989) (prospective adoptive parents); Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987) (non-relative); Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977) (foster parents); cf. Van Coutren v. Wells, 430 Pa.Super. 212, 633 A.2d 1214 (1993) (paternal grandfather where he never had custody of child); Gradwell v. Strausser, 416 Pa.Super. 118, 610 A.2d 999 (1992) (paternal grandfather where child lived with grandfather and natural parents).

After carefully reviewing the facts in the case at bar, we find that Maternal Aunt clearly established that she stands in loco parentis to Daughter. At the time of the August, 1994 hearing, Daughter had been in the custody of Maternal Aunt for approximately twenty-eight months. During that time, Maternal Aunt and Uncle provided Daughter with food, shelter, clothing and ensured that she received an education. Because Maternal Aunt has assumed primary parental responsibility since 1992 to the present, we find that Maternal Aunt has standing to seek custody of Daughter. Vicki N., supra, 437 Pa.Super. 166, 649 A.2d 709; Karner, supra, 433 Pa.Super. 290, 640 A.2d 926.

We are unpersuaded by Mother’s claim that this conclusion is in error. Citing Gradwell, supra, 416 Pa.Super. 118, 610 A.2d 999, Mother contends that a third party cannot place himself in loco parentis status in defiance of the parent’s wishes and the pareni/child relationship. However, there is no evidence in the record that Mother was defiant with respect to Daughter living with Maternal Aunt. On the contrary, Mother consensually left Daughter in the care of Maternal Aunt in the Spring of 1992. While Mother and Stepfather retained custody of Brother, Mother testified at both hearings that she felt compelled to leave Daughter with Maternal Aunt/Maternal Grandmother because she did not want to subject Daughter to homelessness. Whatever the reason, Daughter most certainly did not commence residing with Maternal Aunt in defiance of Mother’s wishes.

Next, after examining the notes of testimony and evidence of record, we find that the trial court did not commit a gross abuse of discretion in awarding primary physical custody to Maternal Aunt, as convincing reasons support the finding that such an award is clearly in Daughter’s best interests. Kaneski, supra, 413 Pa.Super. 173, 604 A.2d 1075; Hernandez, supra, 249 Pa.Super. 274, 376 A.2d 648.

The record reflects the following: Mother, during the September 17, 1993 hearing, admitted that while Daughter resided with her, they changed residences at least four to five times over a ten-year period. She also conceded that she and her husband (Stepfather) had separated on two or three occasions from 1985 to 1993 and that both she and her husband are recovering alcoholics and drug addicts. Mother also acknowledged the fact that neither she nor Stepfather have either a driver’s license or automobile insurance. Nonetheless, Mother and/or Stepfather continue to drive their car to pick up Daughter on the weekends that they have partial custody.

Before Daughter went to reside with Maternal Aunt in 1992, Daughter missed twenty-six days of school in the 1991/1992 school year. Once in Maternal Aunt’s care, Daughter missed only two days of school in the fourth quarter of the 1991/1992 school year, and her school attendance record for the 1992/1993 school year was also quite good. Although Daughter has always been a good student, her grades have definitely improved since she has resided with Maternal Aunt. Daughter testified in camera that while she rarely needs assistance with her homework, she is aware that Maternal Aunt and Uncle are always willing to render such assistance if she so desires.

The testimony also shows that Maternal Grandmother is usually home in the afternoons, awaiting Daughter’s return from school. Maternal Aunt and Uncle return home from work at approximately 5:00 p.m. and 6:30 p.m., respectively. On most evenings, the Maternal Aunt, Uncle, Maternal Grandmother, and Daughter eat dinner together and enjoy routine family discussions.

In contrast, Mother works two jobs to make ends m.eet, including three to four weekends per month. Stepfather also works many weekends. On the weekends that both Mother and Stepfather work, Brother is placed in the care of Stepfather’s seventy-one year old mother. In addition to their busy work schedules, Mother and Stepfather attend meetings several evenings per week to overcome their drug and alcohol addictions.

The testimony also reveals that all of Daughter’s friends and family, except for her Mother, Stepfather, and half-brother, are in Philadelphia, where she now resides. Daughter testified at both hearings that she desires to stay in Philadelphia and attend high school with her friends.

With respect to her relationship with her Mother, Daughter told Judge Jackson that, “I don’t really get along with my mother---- I haven’t ever.” Daughter also informed the trial judge that Mother works most of the time that she visits her and that when they are together, they argue a great deal.

While the express wishes of a child are not controlling in custody decisions, such -wishes do constitute an important factor that must be carefully considered in determining the child’s best interest. McMillen v. McMillen, 529 Pa. 198, 202-04, 602 A.2d 845, 847 (1992) (citing Commonwealth ex rel. Pierce v. Pierce, 493-Pa. 292, 426 A.2d 555 (1981)). The child’s preference, however, must be based on good reasons, and the child’s maturity and intelligence must be considered. Id. (citing Pierce, supra and Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A2d 380 (1972)). The weight to be given to a child’s preference can best be determined by the judge before whom the child appears. Id.; see also Altus-Baumhor v. Baumhor, 407 Pa.Super. 276, 595 A.2d 1147 (1991).

During two separate in camera interviews, Judge Jackson had the opportunity to observe Daughter’s demeanor and found Daughter to be “mature, intelligent and insightful.” We find that Daughter’s steadfast wish to live with her Maternal Aunt was properly considered, and we find no abuse of discretion in the amount of weight afforded that preference. McMillen, supra, 529 Pa. 198, 602 A.2d 845.

Next, Mother contends that the trial court erred in basing its custody order on Mother’s past history, rather than on her present capabilities to care for the child. We must disagree. The trial judge did not base his decision solely on Mother’s prior homelessness, drug addiction, or alcoholism, but, instead, looked to this prior conduct as but one factor in ascertaining the best interests of Daughter. Judge Jackson opined that, “These factors combined to give Jennifer (Daughter) an unstable, if not chaotic life.” See Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976) (holding that parent’s non-marital relationships are at most factors to be considered in determining the best interests of the child); Vicki N., supra, 437 Pa.Super. 166, 649 A.2d 709 (considering Mother’s alcohol abuse and medical problems in determining best interests of the child). While we applaud Mother’s accomplishments to date, we cannot find that the trial court erred in considering some of her past conduct in fashioning the custody order. The prevailing issue must remain the best interests of Daughter, and, in determining what those best interests are, the court must sometimes delve into the sometimes tarnished past of one or both of the parents or parties.

Next, Mother contends that the trial court erred in not considering the policy against separation of siblings. Although the general rule is that siblings should not be separated without compelling reasons, this policy is but one factor to be considered in determining the best interests of the child. Mahoney v. Mahoney, 354 Pa.Super. 585, 590-91, 512 A.2d 694, 697 (1986); see also Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); Wiskoski v. Wiskoski 427 Pa.Super. 531, 629 A.2d 996 (1993); Haag v. Haag, 336 Pa.Super. 491, 485 A.2d 1189 (1984); M.D. v. B.D., 336 Pa.Super. 298, 485 A.2d 813 (1984); McAnallen v. McAnallen, 300 Pa.Super. 406, 446 A.2d 918 (1982).

Since the policy against separation of siblings is not controlling, under this court’s narrow scope- of review, we can discern no abuse of discretion or manifest error presented by Mother which would warrant reversal on this ground. We note that the fact that the trial court failed to specifically discuss the existence of a general policy in favor of raising siblings together was not alone reversible error. Mahoney, 354 Pa.Super. at 590-91 n. 2, 512 A.2d at 697 n. 2. We will not remand merely to give the hearing judge an opportunity to discuss such a policy when to do so would only serve to further prolong this custody dispute. After examining the record, we must conclude that the trial court, upon hearing the testimony of numerous witnesses in this case, weighed that testimony carefully and found that Daughter’s overall best interests would be served by the award of custody to' Maternal Aunt, although this necessitated Daughter’s separation from Gregory.

While Maternal Aunt was awarded primary physical custody of Daughter, Judge Jackson awarded liberal partial physical custody to Mother on alternating weekends. If Mother chooses to exercise her right to take Daughter every other weekend, and there is no evidence of record to indicate that Maternal Aunt would do anything to hinder that right, she can be assured that her daughter and- son’s relationship will continue to grow. The same can be said for Mother and Stepfather’s relationship with Daughter.

For these reasons, we cannot find that the trial court' committed a gross abuse of discretion in awarding custody to Maternal Aunt. Kaneski, supra, 413 Pa.Super. 173, 604 A.2d 1075; McMillen, supra, 529 Pa. 198, 602 A.2d 845.

Order affirmed.

      . Daughter’s biological father is not a party to this custody dispute. His whereabouts are unknown.

      . The United States Supreme Court first extended constitutional protection to the parent/child relationship in 1923 when it explained that although no exact definition of the liberty guaranteed by the Fourteenth Amendment existed, "[w]ithout doubt, it denotes ... the right of the individual to ... establish a home and bring up children.” Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). Approximately twenty years later, in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), the Court recognized that society has an interest in protecting the welfare of all children: ''[i]t is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed men and citizens.” Id. at 165, 64 S.Ct. at 442. Finally, in 1974, the Court held that, “[t]his Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974).

      . Mother and Stepfather both participate in Alcoholics Anonymous meetings several times per week. Additionally, for purposes of this custody action, Mother and Stepfather submitted to drug testing. At the second hearing, counsel for Mother informed the court that the results of the drug tests were negative.

      . As noted above, Gregoiy, Daughter's half-brother, continues to live with Mother and Stepfather.

      . In addition to alternating weekends, Judge Jackson awarded partial custody to Mother for one-half of the Winter and Spring school vacations, and for six weeks during Daughter’s Summer school vacation.