author: CIRILLO, Judge: OLSZEWSKI, Judge,

text:
    652 A.2d 865
    Charles BRINDLEY v. WOODLAND VILLAGE RESTAURANT, INC., K.B. Boukidis a/k/a Konstantinos Boukidis, and Vasilios Palvantis, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1994.
    Filed Jan. 13, 1995.

      Jeffrey M. Cooper, West Chester, for appellants.
    Andrew H. Gaber, Philadelphia, for appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   CIRILLO, Judge:

Woodland Village Restaurant, Inc., K.B. Boukidis, a/k/a Konstantinos Boukidis, and Vasilios Pavlantis (hereinafter “Woodland”) appeal from a judgment entered in the Court of Common Pleas of Philadelphia County. We vacate and remand for a new trial.

On May 18, 1990, appellee Charles Brindley and a few friends were in the Woodland Village Restaurant for breakfast. Upon entering the restaurant’s bathroom, Brindley slipped and fell, sustaining head and back injuries as a result. Brindley stated that he had taken about two steps into the bathroom and slipped on something slimy; there was about a quarter inch of water on the floor, along with ashes and cigarette butts. Brindley described the area of water on the floor as being about five to six feet in circumference. It appeared to him as if the water had been there for quite a while because it was starting to “cake up” around the perimeters. Brindley said he noticed the. water after he fell to the ground.

Konstantinos Boukidis testified, along with two other witnesses, that the bathroom floor was clean immediately after the fall and before the fall. Following a bench trial before the Honorable Alfred J. DiBona, Jr., a verdict was entered in favor of Brindley and against all appellants in the amount of $8,800.00. Post-verdict motions were filed and denied. This appeal followed.

Woodland presents the following issues for our consideration:

(1) Was the decision against the weight of the evidence?
(2) Did Brindley’s counsel engage in misconduct?
(3) Did the verdict improperly pierce the corporate veil?
(4) Were Brindley’s medical damages improperly established by defendant’s failure to respond or object to request for admissions?
(5) Was defendant’s negligence and Brindley’s lack of negligence improperly established by defendant’s failure to respond or object to request for admissions?

Woodland argues that Brindley’s counsel engaged in misconduct when he advised the trial judge that one of Woodland’s witnesses had solicited both Brindley and Brindley’s counsel for money and that the witness was a drug addict. Woodland claims that this was a deliberate attempt to prejudice the court. Woodland’s allegations of misconduct, however, were not raised in post-verdict motions. Accordingly, we shall not address this issue. Post-trial relief may not be granted unless the grounds therefor are specified in the motion; grounds not specified are deemed waived. See Pa. R.C.P. 227.1(b); Puleo v. Thomas, 425 Pa.Super. 285, 624 A.2d 1075 (1993). Additionally, Woodland has not set forth any authority in support of its argument; rather, it simply concludes that counsel was attempting to prejudice the trial court. See Pa.R.A.P. 2119 (the argument shall be followed by such discussion and authorities as are deemed pertinent). We find this issue to be waived.

Boukidis and Pavlantis next claim that, as owners/employees of their corporation, the corporate form shields them from personal liability and, accordingly, “piercing the corporate veil” and entering a verdict against all defendants was improper. We must determine whether it was proper to hold Boukidis and Pavlantis jointly and severally liable for the alleged negligence at issue.

Boukidis and Pavlantis primarily rely upon Burton v. Boland, 339 Pa.Super. 444, 489 A.2d 243 (1985) for the proposition that the corporate entity will be disregarded only when it is used to defeat public convenience, justify wrong, perpetrate fraud, or defend crime. Id. Boukidis and Pavlantis conclude that, because no fraud or illegality has been alleged here, Woodland’s corporate form shields them from personal liability. Although Boukidis and Pavlantis set forth a correct statement of the law, as evidenced by the following summary of relevant case law, this is not the end of the analysis.

In Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 470 A.2d 86 (1983), the appellants, a group of homeowners, filed a complaint against Milzoco Builders, Inc., Carroll Builders, Inc., and Chester Miller, Eugene Cook, and Wesley Zollers, individually. The only issue was whether this court erred in affirming the dismissal of the actions in trespass against appellees on the ground that the homeowners failed to plead facts on which Miller, Cook, and Zollers could be held personally liable for the alleged tortious actions and omissions of Milzoco Builders and Carroll Builders. The Pennsylvania Supreme Court reversed this court and concluded that the facts generally averred in the homeowners’ complaint stated a cause of action in tort against Miller, Cook, and Zollers.

In reaching its conclusion, the Court stated that the “Superior Court ... incorrectly held that fraud, criminality or unauthorized acts must be present to find corporate agents liable.” Id. at 619, 470 A.2d at 88. The Court explained that,

[i]n the instant case, ... appellants have not challenged the legitimacy of Milzoco Builders or Carroll Builders nor have they alleged that appellees have used the corporate form merely as a vehicle by which they seek to engage in illegal or improper acts with impunity. Instead, appellants seek to hold Miller, Cook and Zollers liable on the theory that they personally participated in the alleged tortious acts committed on behalf of the corporations.

Id. at 621, 470 at 89.

In recognizing this difference, the Pennsylvania Supreme Court distinguished the theory of “piercing the corporate veil” from the “participation theory.” .

There is a distinction between liability for individual participation in a wrongful act and an individual’s responsibility for any liability-creating act performed behind the veil of a sham corporation. Where the court pierces the corporate veil, the owner is liable because the corporation is not a bona fide independent entity; therefore, its acts are truly his. Under the participation theory, the court imposes liability on the individual as an actor rather than as an owner. Such liability is not predicated on a finding that the corporation is a sham and a mere alter ego of the individual corporate officer. Instead, liability attaches where the record establishes the individual’s participation in the tortious activity.

Id. at 621, 470 A.2d at 89-90 (footnote omitted); accord Village at Camelback v. Carr, 371 Pa.Super. 452, 462, 538 A.2d 528, 533 (1988), affd, 524 Pa. 330, 572 A.2d 1 (1990); see also Loeffler v. McShane, 372 Pa.Super. 442, 445-46, 539 A.2d 876, 878 (1988). Wicks expressly confirmed that Pennsylvania law recognizes the participation theory as a basis of liability and, importantly, noted that, under this theory, a corporate officer can be held liable for “misfeasance,” ie., the improper performance of an act, but not for “mere nonfeasance,” ie., the omission of an act which a person ought to do. Wicks, 503 Pa. at 621, 470 A.2d at 90; Village at Camelback, 371 Pa.Super. at 463, 538 A.2d at 533; Loeffler, 372 Pa.Super. at 446, 539 A.2d at 878.

Here, there has been no challenge to Woodland’s legitimacy, nor has it been alleged that Boukidis and Pavlantis have used the corporate form as a vehicle by which they seek to engage in illegal or improper acts. Thus, it is clear from the foregoing case law that we must analyze the instant case in light of the participation theory, ie., the attempt to assess direct liability in tort against a person acting as an officer of a corporation, rather than under a theory of piercing the corporate veil.

In Wicks, the Court held that the general averments of negligence set forth in the homeowners’ complaints — that the appellees knew that the location of the proposed development created an unreasonable risk of drainage problems which occurred and, having the power to do so, they deliberately ordered the work to proceed — were sufficiently pleaded to withstand demurrer. Here, we are not dealing with whether a claim of negligence can be sustained as a cause of action; thus, we need not be held to such a stringent standard as that for sustaining a demurrer. See Village at Camelback, supra (finding that appellant pleaded sufficient facts to survive a demurrer on the ground that a controlling stockholder/partner of various corporations personally committed, inter alia, negligence, misrepresentation and conversion).

More instructive for our purposes is this court’s decision in Loeffler v. McShane, supra. There, we were called upon to decide whether a corporate officer (Mr. Zone), who supervised a settlement on the refinancing of a mortgage, could be held personally liable for the loss suffered by the mortgagors when Mr. Zone negligently authorized the payment of the mortgagors’ settlement funds to the wrong party. Mr. Zone did not contest the fact that he was a tortfeasor; instead, he argued that the trial court erred as a matter of law by holding him personally liable for the damage caused by his negligence. This court did not agree, and affirmed the trial court’s finding that Mr. Zone was liable in his individual capacity to the mortgagors.

In reaching this result, we relied upon the participation theory, and cited both Wicks and Village at Camelback in support thereof. Specifically, the court focused upon the participation theory’s distinction between misfeasance and nonfeasance, the former being that for which a corporate officer can be held liable.

The trier of fact found that appellant “specifically directed the particular act to be done” which resulted in the loss of the mortgagors’ settlement funds. The record clearly supports an inference that appellant, without first obtaining the permission of either the mortgagor or the mortgagee, ordered his clerk to pay the settlement check to a party who was not authorized to receive the check. This active involvement in the misallocation of funds involved both misfeasance and negligence. The combination of the two is clearly sufficient to support a finding of personal liability on the part of a corporate officer.

Loeffler, 372 Pa.Super. at 447, 539 A.2d at 879 (emphasis added). See Chester-Cambridge Bank & Trust Co. v. Rhodes, 346 Pa. 427, 31 A.2d 128 (1943) (unlike a corporate officer who knowingly participates in a wrongful act, no liability attaches where an officer is charged with nonfeasance); see also Bank of Landisburg v. Burruss, 362 Pa.Super. 317, 524 A.2d 896 (1987) (pursuant to the participation theory, corporate president’s conduct involved a sufficient degree of participation to impose tort liability for conversion, jointly and severally with the corporation, where he participated in that conversion by personally visiting the farm to negotiate the sale of cattle, personally made arrangements for the delivery of the cattle, and neglected to search the recording system for evidence of security interest in those cattle); Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977) (engineer who acted as agent for corporation may be held individually liable for designing a car wash in a negligent manner).

We must ultimately determine, therefore, whether Boukidis’ and Pavlantis’ alleged negligence should be categorized as nonfeasance or misfeasance for purposes of deciding whether they were correctly held jointly and severally liable. In light of the facts of this case and the case law set forth above, we find that the trial court erred in entering a verdict of joint and several liability against Boukidis and Pavlantis.

In Loeffler, there existed evidence of overt acts, specifically directed by the corporate officer, which led to the loss of the settlement funds. Such was not a case of “passive” negligence or nonfeasance but, rather, an active involvement in the misallocation of funds. The record in the instant case, however, reveals no such evidence of misfeasance. A clarification of the difference between nonfeasance and misfeasance was enunciated in Nelson v. Duquesne Light Co., 338 Pa. 37, 12 A.2d 299 (1940):

[NJegligence might consist not only of “nonfeasance, that is, omitting to do, or not doing, something which ought to be done, which a reasonable and prudent man would do,” but also of “a misfeasance, that is, the doing of something which ought not be done, something which a reasonable man would not do, or doing it in such a manner as a man of reasonable and ordinary prudence would not do it, in either case leading to mischief or injury.”

Id. at 44, 12 A.2d at 303. Here, the alleged negligence or inaction which led to the condition which caused Brindley’s injury is plainly more analogous to negligence consisting of nonfeasance, i.e., omitting to do something which ought to be done. Boukidis and Pavlantis allegedly neglected their duty to clean and keep safe the restaurant’s restroom. There was no evidence, however, that the condition existing in the restroom was a result of an active, knowing participation by Boukidis and Pavlantis. Chester-Cambridge, swpra; Loeffler, supra. Simply stated, Boukidis and Pavlantis have not engaged in the evils the participation theory seeks to address.

We find it persuasive that the theory of piercing the corporate veil, which is closely related to the participation theory, is imposed cautiously in Pennsylvania; in fact, there is a presumption against applying it.

In applying the test (for piercing the corporate veil), ... any court must start from the general rule that the corporate entity should be recognized and upheld, unless specific, unusual circumstances call for an exception.... Care should be taken on all occasions to avoid making “the entire theory of the corporate entity ... useless.... [”]

Kellytown Company v. Williams, 284 Pa.Super. 613, 622, 426 A.2d 663, 668 (1981) (quoting Zubik v. Zubik, 384 F.2d 267, 273 (3d Cir.1967), cert. denied, 390 U.S. 988, 88 S.Ct. 1183, 19 L.Ed.2d 1291 (1968)); see Wedner Unemployment Compensa tion Case, 449 Pa. 460, 296 A.2d 792 (1972). To hold Boukidis and Pavlantis jointly and severally liable with Woodland would serve to make the theory of the corporate entity useless. The trial court erred in imposing a verdict against Woodland, Boukidis, and Pavlantis, jointly and severally.

Woodland’s last two issues are closely related. Specifically, it asserts that Brindley’s medical damages and Woodland’s negligence were improperly established by Woodland’s failure to respond or object to Brindley’s request for admissions. Requests for admissions are governed by Pa.R.C.P. 4014. According to that rule, facts set forth in a request for admissions are deemed admitted in the event of an untimely response to the request. Pa.R.C.P. 4014(b).

The request for admissions to which Woodland objects to being admitted are as follows:

II. That each of the following statements are true:
A. All of the medical treatments set forth in the medical records attached to this Request in Exhibits “A-E” were necessary for the injuries sustained in the subject accident.
B. All the medical bills attached to this Request in Exhibits “A-E” were reasonable for the treatments rendered.
C. All the medical diagnoses] set forth in the medical records attached to this Request in Exhibit “A-E” were caused by the subject accident.
sjí :■* í-í # if: *
T. The subject accident was caused solely by the negligence of Woodland Village Restaurant, Inc.
U. The subject accident was caused solely by the negligence of K.B. Boukidis.
V. The subject accident was caused solely by the negligence of Vasilios Pavlantis.
W. At the time of the accident, Charles Brindley was not negligent in any manner whatsoever.

With regard to the medical documents (A-C), Woodland admits, in its appellate brief, that the documents submitted were genuine and authentic. However, as to the necessity of the treatment, reasonableness of the bills, and medical diagnosis, Woodland asserts that these conclusions were improperly admitted into evidence via the request for admissions. The trial court, Woodland argues, had no medical testimony upon which to base a finding of damages; Brindley produced no medical testimony other than the medical reports and bills. With regard to the remaining request for admissions (T-W), concerning Woodland’s negligence, Woodland avers that it is improper for a request to require an admission of a question of law.

Specifically, Rule 4014 provides, in pertinent part:

(a) A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rules 4003.1 through 4003.5 inclusive set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness, authenticity, correctness, execution, signing, delivery, mailing or receipt of any document described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or available for inspection and copying in the county....
(b) Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission of a verified answer or an objection addressed to the matter, signed by the party or by his attorney....
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(d) Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission....

Pa.R.C.P. 4014.

The purpose of the procedure provided in Rule 4014 is to clarify issues raised in prior pleadings with the goal of expediting the litigation process. Commonwealth v. Diamond Shamrock Chemical Co., 38 Pa.Commw. 89, 94, 391 A.2d 1333, 1336 (1978); see Goodrich-Amram 2d § 4014:1, p. 444 (“The Rule [Rule 4014] is designed to expedite the production and authentication of evidence that is not controverted by the litigants.”).

In resolving this issue, we are persuaded by the Commonwealth Court’s decision in Dwight v. Girard Medical Center, 154 Pa.Commw. 326, 623 A.2d 913 (1993). While Dwight differs procedurally in that it involves an order granting summary judgment, it is sufficiently analogous in other respects so as to lend adequate support to our decision in the present case.

Appellant Dwight filed an action against the Commonwealth of Pennsylvania, Department of Corrections, alleging that he was injured while an inmate at the Philadelphia County Detention Center. In the course of discovery, the Department submitted to Dwight a request for admissions stating, inter alia: that adequate and proper medical treatment was made available to Dwight; that he received adequate and proper medical care when he permitted it to be provided; that the care given was appropriate and proper under the circumstances; and that the Department was not negligent or careless in any respect. Dwight did not file an answer to the request for admissions by the specified date, and the admissions in the request were thus deemed admitted. The trial court entered an order granting summary judgment and dismissing Dwight’s complaint against the Department.

In support of its holding that the grant of summary judgment against Dwight was premature, the Commonwealth Court stated:

[I]f the subject matter of the admissions is broad and far-reaching, a court should permit withdrawal [of the admissions] in the absence of bad faith or substantial prejudice. Moreover, requests for admissions must call for matters of fact rather than legal opinions and conclusions. Since conclusions of law are not within the permissible scope of requests for admissions under Rule 4014, those statements in the requests for admissions which constitute conclusions of law are not properly before the court.

Id. at 333, 623 A.2d at 916 (citations omitted) (emphasis added); see Diamond Shamrock Chemical Co., supra (conclusions of law are not within the permissible scope of requests for admissions under Pa.R.C.P. No. 4014); cf. Richard T. Byrnes Co., Inc. v. Buss Automation, Inc., 415 Pa.Super. 549, 609 A.2d 1360 (1992) (facts contained in unanswered request for admissions — citing that appellant’s only defense was that a certain entity was the one with whom appellant contracted, and that appellant had entered into an agreement with additional defendants — were deemed admitted). “[The matters set forth in the Department’s request for admissions] are not matters of fact but are conclusions of law not within the permissible scope of request for admissions and thus were not properly before the trial court____” Dwight, 154 Pa.Commw. at 333, 623 A.2d at 916.

Comparing the Dwight case to the instant case, the Department’s request for admissions regarding medical treatment and medical care are strikingly similar to Brindley’s requests concerning his medical care and medical diagnosis. By the same token, here, as in Dwight, the request for admissions set forth questions concerning the negligence of the defendants. The request for admissions challenged here go well beyond requests for “opinion of fact” or “application of law to fact” permitted by Rule 4014. The requests concerning the medical records call for legal conclusions (A-C); a show of damages is one element in proving a negligence claim. A more blatant display of legal conclusions is evident in the remaining challenged request for admissions (T-W); these question the cause of the negligence at issue. We conclude, therefore, that the challenged admissions were not properly before the trial court; they cannot be used to sustain the elements of Brindley’s case.

The trial court, in denying post-verdict motions, opined that “[t]hese admissions, and the testimony of the defendant, Konstantinos Boukidis, provided more than sufficient evidence to establish the liability of the individual defendants.... ” Because the challenged admissions were not properly before the trial court, we find that Brindley failed to establish damages and causation. As mentioned previously, there was no medical testimony presented at trial; only the medical reports and the “admissions” were provided for the trial judge.

It follows that the trial court’s verdict cannot sustain a challenge regarding the weight of the evidence. A new trial will not be granted on the basis of a weight of the evidence claim unless evidence supporting the verdict is so inherently improbable or at a variance with admitted or proven facts or with ordinary experience as to render the verdict shocking to the court’s sense of justice. Houseknecht v. Walters, 404 Pa.Super. 85, 590 A.2d 20 (1991). This court will review the action of the court below and will reverse only if it determines that it acted capriciously or palpably abused its discretion. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 287, 265 A.2d 516, 517 (1970); see also Phillips v. Schoenberger, 369 Pa.Super. 52, 57, 534 A.2d 1075, 1077 (1987).

Here, the evidence in support of the verdict was based, in part, upon admissions improperly before the court. The trial court, therefore, palpably abused its discretion when it rendered a verdict in favor of Brindley.

Vacated and remanded for a new trial. Jurisdiction relinquished.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

I concur with the majority’s result here. I believe, however, that the statement “All medical bills attached to this Request in Exhibits ‘A-E’ were reasonable for the treatments rendered,” was properly deemed admitted. The reasonableness of the medical bills does not call for a conclusion of law, but is instead a question of fact.

I do agree that requests for admissions 11(A), 11(C), and II(T-W) were erroneously deemed admitted. Because these statements constituted the major portions of appellee’s case establishing the four classic elements of a negligence action— duty, breach, causation, and harm — these statements were prejudicial to appellants. It was, therefore, reversible error to admit them into evidence. Accordingly, it is unnecessary for the majority to address appellants’ claim that the verdict was against the weight of the evidence.

      . In light of our ultimate disposition in this case, we find it more practical to address Woodland’s first issue in conjunction with its last two issues.

      . Although the case was tried to verdict, we label the negligence at issue as "alleged” negligence due to our ultimate determination that a new trial is warranted.

      . Appellees Miller, Cook and Zollers served as President, Vice-President, and Secretary of Milzoco Builders, Inc., respectively. Additionally, Cook and Zollers were the sole shareholders of Carroll Builders, Inc.

      . The homeowners’ complaints stated, generally, that the appellees were aware, or should have been aware, of potential drainage problems at a particular housing development and, therefore, were negligent in failing to take appropriate measures to eliminate or minimize the problems.

      . In McKenna v. Art Pearl Works, Inc., 225 Pa.Super. 362, 310 A.2d 677 (1973), this court stated:
      We have said that the “equitable doctrine of piercing the corporate veil [should be employed] to prevent the perpetration of wrong; to prevent its use as a shield for illegal and wrongful conduct; or where its use, as a technical device, brings about injustice or an inequitable situation so that justice and public policy demand it be ignored. However, we have not done so where the rights of innocent parties are involved and the corporation is used for a legal purpose, as otherwise the entire theory of the corporate entity would be made useless.”

        Id. at 366, 310 A.2d at 679 (quoting Commonwealth v. Price Bar, Inc., 203 Pa.Super. 481, 484, 201 A.2d 221, 222 (1964)); see also Zubik v. Zubik, 384 F.2d 267 (3d Cir.1967).

      . "The law of Pennsylvania has long recognized that personal liability can be found against a corporate officer who actually participates in the wrongful, injury-producing act.” Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 250, 376 A.2d 247, 252 (1977) (citing Chester-Cambridge Bank & Trust Co. v. Rhodes, 346 Pa. 427, 433, 31 A.2d 128, 131 (1943)).

      . The record belies Brindley’s claim that his medical records went into evidence without objection. Woodland specifically objected to the admission of these records. N.T. p. 37-38.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    652 A.2d 873

    COMMONWEALTH of Pennsylvania, v. Ronald Joseph HIGHTOWER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1994.
    Filed Jan. 9, 1995.

      Janet R. Hightower, Pittsburgh, for appellant.
    Dwight Diehl, Asst. Dist. Atty., Bedford, for Com., appellee.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge:

On November 7, 1992, Trooper Mark Hogan stopped appellant, Ronald Joseph Hightower, for driving above the posted speed limit and issued him a summons pursuant to 75 Pa.C.S. § 3362. On December 17, 1992, appellant was found guilty before a district magistrate and subsequently filed a timely summary appeal. A trial de novo was scheduled for June 1, 1993.

On the day of trial, Trooper Hogan was unavailable to testify due to his "wife’s sudden illness and hospitalization. The trial court granted the Commonwealth’s request for a continuance, over the objection of appellant, and the trial was rescheduled for October 6, 1993. In August of 1993, the Commonwealth again requested a continuance to accommodate Trooper Hogan’s scheduled vacation. This request was granted over appellant’s objection. Finally, on December 20, 1993, the trial de novo proceeded and appellant was found guilty of violating 75 Pa.C.S. § 3362(a)(2). Thereafter, appellant was sentenced to pay the costs of prosecution and a fine of $75.00, which were to be vacated if he filed timely post-verdict motions. Appellant filed a timely post-verdict motion which was denied, and on April 22, 1994 appellant’s sentence was reinstated. This timely appeal followed.

Appellant contends the trial court abused its discretion by granting a continuance where a dismissal was required. We agree.

Preliminarily, we note the Pennsylvania Rules of Construction explain where 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.” 1 Pa.C.S. § 1921(b).

With this standard in mind, we examine the applicable statute. The Pennsylvania Rules of Criminal Procedure provide:

In appeals from summary proceedings arising under the Motor Vehicle Code (Title 75 of Pennsylvania Consolidated Statutes) or local traffic ordinances, other than parking offenses, the law enforcement officer who observed the alleged offense must appear and testify. Unless the presence of the law enforcement officer is waived in open court by the defendant, the failure of the officer to appear and testify shall result in a dismissal of the charges.

Pa.R.Crim.P. Rule 86(f). The words of this rule are clear; where an officer fails to appear to testify, the charges must be dismissed unless the defendant waives the officer’s presence in open court. No other exception to this rule is provided.

The Commonwealth cites Pa.R.Crim.P. Rule 301 for the proposition that a trial court is vested with broad discretion to grant a request for a continuance when justice will be served. See also Commonwealth v. Micelli, 392 Pa.Super. 563, 573 A.2d 606 (1990) (Commonwealth should have been granted a continuance because of arresting officer’s National Guard duty). However, the Statutory Construction Act explains that:

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

1 Pa.C.S. § 1933.

Here, as appellant did not waive Trooper Hogan’s presence, the charges should have been dismissed. Rule 86(f) of the Pennsylvania Rules of Criminal Procedure is clear and unambiguous in this regard. Moreover, Rule 86(f) pertains specifieally to the instant case, which is an appeal of summary proceedings arising under the Motor Vehicle Code. In contrast, Rule 301 is a general rule regarding continuances in any criminal matter. Thus, as Rule 301 is general, whereas Rule 86(f) is specific, Rule 86(f) prevails. Bureau of Driver Licensing v. Campbell, 138 Pa.Commw. 337, 588 A.2d 75 (1991) (where a general provision conflicts with a specific provision in the same or another statute, the specific provision shall prevail). Because the trial court improperly allowed a continuance, despite appellant’s objection, we reverse.

Reversed.

      . Rules of statutory construction are incorporated into the Rules of Criminal Procedure by Pa.R.Crim.P. Rule 2.


author: WIEAND, Judge:

text:
    652 A.2d 874
    COMMONWEALTH of Pennsylvania v. Virginia F. (Tyler) SHARTLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 12, 1994.
    Filed Jan. 17, 1995.

      Edward J. Hatheway, Meadville, for appellant.
    Mark D. Waitlevertch, Asst. Dist. Atty., Meadville, for Com., appellee.
    Before WIEAND, HUDOCK and HESTER, JJ.
   WIEAND, Judge:

Virginia F. (Tyler) Shartle entered a plea of guilty to a charge of recklessly endangering another person in connection with the stabbing of a former paramour during an argument. She was sentenced to serve a term of imprisonment for not less than four (4) months nor more than twenty-four (24) months, less one (1) day. A motion for reconsideration of sentence was denied, and Shartle filed the instant appeal in which she raises the following issues:

1. WHETHER THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY SENTENCING THE DEFENDANT/APPELLANT IN THE AGGRAVATED RANGE DESPITE NOTING IN ITS MAY 23, 1994 SENTENCING ORDER THAT THE DEFENDANT/APPELLANT HAD BEEN ABUSED BY THE VICTIM IN THIS CASE?
2. WHETHER THE TRIAL COURT ERRED BY NOT GIVING THE DEFENDANT/APPELLANT CREDIT FOR PRE-TRIAL INCARCERATION FOR TIME SERVED WHEN THE DEFENDANT/APPELLANT HAD SERVED TWENTY-TWO DAYS ON HOUSE ARREST FROM THE DATE OF HER ARREST TO THE DATE OF HER PRELIMINARY HEARING?

After review, we deny allowance of appeal from the discretionary aspects of sentencing and otherwise affirm the judgment of sentence.

The first issue asserted by appellant involves a challenge to the discretionary aspects of sentencing. Pursuant to Pa.R.A.P. 2119(f), appellant was required to set forth in her brief a concise statement of the reasons relied upon for allowance of an appeal from the discretionary aspects of sentencing. See: Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). See also: Commonwealth v. Jones, 418 Pa.Super. 93, 99, 613 A.2d 587, 590 (1992) (en banc); Commonwealth v. Eicher, 413 Pa.Super. 235, 268, 605 A.2d 337, 353-354 (1992). Appellant has failed to comply with this procedural requirement, and the Commonwealth has objected thereto. This Court, therefore, is precluded from reviewing the merits of appellant’s challenge to the discretionary aspects of the sentence. See: Commonwealth v. Krum, 367 Pa.Super. 511, 515-520, 533 A.2d 134, 136-138 (1987) (en banc). See also: Commonwealth v. Huckleberry, 429 Pa.Super. 146, 150-151, 631 A.2d 1329, 1331 (1993); Commonwealth v. Servich, 412 Pa.Super. 120, 133, 602 A.2d 1338, 1345 (1992). Accordingly, we deny the allowance of an appeal from the discretionary aspects of appellant’s sentence.

Following her arrest and preliminary arraignment, appellant was released on her own recognizance, subject to the condition that she submit to house arrest. This house arrest continued for a period of twenty-two (22) days and until the time of appellant’s preliminary hearing. Following the preliminary hearing, appellant was permitted to post bond, and the condition of house arrest was discontinued. Appellant now argues that she should have been given credit for time served with respect to the twenty-two (22) days she was under house arrest and subject to electronic monitoring. The sentencing court, however, concluded that house arrest was not the equivalent of “imprisonment,” and that appellant was not entitled to be given credit for the time during which she was confined to her home by order of court.

The Sentencing Code provides for the awarding of credit for time served as follows:

§ 9760. Credit for time served
After reviewing the information submitted under section 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows:
(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.

42 Pa.C.S. § 9760(1). This is amplified by Pa.R.Crim.P. 1406(b), which provides:

(b) A sentence to imprisonment shall be deemed to commence and shall be computed from the date of commitment for the offense or offenses for which such sentence is imposed, which date shall be specified by the judge. Credit, to be calculated by the clerk of court, shall be given as provided by law for any days spent in custody by the defendant for such offense or offenses prior to the imposition of sentence.

Pa.R.Crim.P. 1406(b). These provisions make clear that a defendant is to be given credit for time served with respect to any time spent in “custody” prior to being sentenced by the court.

The Superior Court, in Commonwealth v. Jones, 211 Pa.Super. 366, 236 A.2d 834 (1967), held that a defendant was entitled to credit for time served pre-trial in a state hospital upon commitment for a mental health evaluation. In so holding, the Court reasoned:

“Custody, in criminal law, is the same thing as detention, in civil law, and is synonymous with imprisonment. Imprisonment is the detention of a person contrary to his will.” Words and Phrases, Vol. 10, page 722. It seems too clear for argument that this appellant has been in custody from the date of the arrest to the present time. He has at all times been under the jurisdiction and subject to the authority of the court; has been restrained of his liberties during the entire time of confinement; and if he had violated this custody by “walking away” he would have been apprehended by the authorities and either returned to the hospital or to the county jail.

Id. at 370-371, 236 A.2d at 836. See: Commonwealth v. Usher, 264 Pa.Super. 435, 399 A.2d 1129 (1979) (juvenile defendant was entitled to credit for time served in residential drug and alcohol treatment program). Accord: Commonwealth v. Mallon, 267 Pa.Super. 163, 169, 406 A.2d 569, 572 (1979).

However, in Commonwealth v. Kriston, 527 Pa. 90, 588 A.2d 898 (1991), the Supreme Court held that the legislature had demonstrated an intent that sentences of imprisonment were to be served in institutional settings. Therefore, the Court said, the term “imprisonment” would be construed to require confinement in an institutional setting. Consequently, the statutorily mandated minimum term of imprisonment for driving while under the influence of alcohol could not be satisfied by time spent by the defendant in a home monitoring program.

The Supreme Court elucidated further in its opinion in Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991). There, the Court held that a defendant who had been convicted of driving while under the influence of alcohol was entitled to credit for time served in an inpatient alcohol rehabilitation program. The Court observed that, “[p]ursuant to 42 Pa.C.S. § 9760, a defendant may be given credit for time spent in custody, and we firmly believe that ‘custody’ in this sense includes time spent in institutionalized rehabilitation and treatment programs.” Id. at 202, 589 A.2d at 1109. See also: Commonwealth v. Cozzone, 406 Pa.Super. 42, 54-57, 593 A.2d 860, 866-868 (1991). Citing its prior decision in Commonwealth v. Kriston, supra, the Conahan Court distinguished time served in an “institutional setting,” such as an inpatient alcohol treatment facility, from time spent in a home monitoring program. The Court said:

In Kriston we were concerned with the non-custodial nature of a sentence being served in a personal residence. While it is true that one subject to home monitoring has his liberty restrained and risks being sent to prison if he violates the terms of the program, we could not hold that such a sentence was sufficient to satisfy the goals of the Legislature given the abundant amenities and nonrehabilitative temptations present in the home. However, in the case sub judice our definition of “imprisonment” compels a different result.
Conahan voluntarily committed himself to inpatient custodial alcohol rehabilitation, which he successfully completed after devoting ninety-five continuous days towards overcoming his disease. We find that his successful completion of this custodial inpatient rehabilitation, which took place in three hospitals, falls within the common meaning of “imprisonment” and is a sufficient “institutional setting” as contemplated by this Court in Kriston.

Commonwealth v. Conahan, supra 527 Pa. at 203, 589 A.2d at 1109.

In the instant case, appellant’s pre-trial confinement to her home was not the equivalent of time served in an institutional setting. Therefore, the home monitoring program to which she was subjected did not meet the statutory requirement of custody as set forth at 42 Pa.C.S. § 9760(1). As such, the trial court did not err by refusing to give appellant credit for time served for the twenty-two (22) days spent under house arrest prior to the preliminary hearing.

The judgment of sentence is affirmed.

      . In exchange for her plea of guilty, the Commonwealth agreed to nol pros charges of aggravated assault, simple assault and harassment. It was further agreed that the deadly weapons enhancement provision of the Sentencing Guidelines would not be applied for purposes of sentencing.

      . Moreover and in any event, the sentencing court did not abuse its discretion by imposing a sentence in the aggravated range of the Sentencing Guidelines. According to the sentencing court, such a sentence was warranted "due to the fact that there actually [were] serious injuries inflicted to the victim, the [appellant] was on probation at the time of the incident and was drinking alcoholic beverages.” Because the sentence imposed is supported by the record, there is no basis for this Court to disturb the sentencing court's exercise of its broad discretion.

      . A challenge to the trial court’s failure to give credit for time served prior to sentencing involves the legality of sentencing; and, therefore, such a claim is appealable as of right. See: Commonwealth v. Little, 417 Pa.Super. 505, 506 n. 1, 612 A.2d 1053, 1053 n. 1 (1992); Commonwealth v. Hollawell, 413 Pa.Super. 42, 45, 604 A.2d 723, 725 (1992).


author:
WIEAND, Judge:
      OLSZEWSKI, Judge,

text:
    652 A.2d 877
    In the Interest of J.M., born 1-3-92; K.M., born 4-22-88; K.M., born 6-25-86; T.M., born 8-25-83; M.M., born 6-1-80; F.M., JR., born 8-19-81. Appeal of F.L.M. and F.M.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1994.
    Filed Jan. 17, 1995.

      Duane Barnes, Warren, for appellants.

      Karl Swanson, Warren, for appellees.
    William R. Mervine, Warren, for participating party Warren County Children & Youth Services.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

This is an appeal by F.L.M. and F.M., father and mother, from an order which granted a petition by Children and Youth Services of Warren County and adjudicated six of their eight children dependent.

Born to F.L.M. and F.M. were eight children as follows: Js., born February 4, 1977; Ts., born May 19, 1978; M., born June 1, 1980; Fjr., born August 19, 1981; TL, born August 25, 1983; Km., born June 25, 1986; Kt., born April 22, 1988; and Jn., born January 3, 1992. On January 6,1988, before the last two children had been born, Warren County Children and Youth Services (CYS) received information that TL, then age 4, had been sexually abused by F.L.M. CYS personnel, accompanied by a police officer, went to the M. home, which reportedly was found to be filthy, unsuitable for children and without heat except for a stove in the kitchen. TL, pointing to her vaginal area, told police that her father had given her a “bad touch.” CYS took emergency custody of the six children, and a medical examination of TL disclosed lacerations consistent with digital penetration. On January 11, 1988, a hearing was held on the petition filed by CYS for custody of the children. During this hearing, F.L.M., who had been experiencing health problems, became ill and the hearing was continued. Meanwhile, custody of the children remained with CYS.

Kt. was born on April 22, 1988, and within days was placed in the custody of CYS. On May 17, 1988, an agreement was reached by which F.L.M. was to attend sexual offender counseling and F.M. was to attend parenting classes. The parents were also to clean the home and remove animals that were present. Periodic review hearings were held thereafter, which resulted in the children’s continued placement in foster care. The conditions at the home improved, however, and F.M. was allowed regular visitation with her children. Due to his continuing health problems, F.L.M.’s visits were less frequent.

F.L.M. cooperated with CYS by attending a counseling program, but he continued to deny that he had abused his daughter sexually. F.M. also denied that Tl. had been abused by F.L.M. Therefore, the counseling program was terminated. In September, 1988 and. September, 1989, CYS unsuccessfully filed petitions to terminate F.L.M.’s parental rights. In August, 1991, however, a third petition was granted by the trial court, and F.L.M.’s parental rights were terminated. CYS also attempted to terminate F.M.’s parental rights. This petition was denied by the court, but only on the condition that she refuse to live with her husband.

On May 30, 1991, a disposition review hearing was held before a hearing officer, who made findings of fact and recommendations. Among these recommendations was that the four oldest children be allowed to return to their mother’s home. By order of June 5, 1991, the trial court accepted this recommendation, and the four children were returned to their mother. On September 27, 1991, however, CYS again petitioned to obtain custody of the four children, alleging that they had been without proper parental control and that they had been allowed unsupervised visitation with their father. A hearing on the petition was held on October 17, 1991. Although the evidénce was in sharp dispute, the testimony did reveal the following: F.M. had been babysitting the children of Don Fiscus, who came to the M. home after work to pick up his children. The children were often picked up by Randy Fiscus, Don’s younger brother, who was eighteen at the time of the hearing. Randy Fiscus spent a significant amount of time with the four M. children, driving them around in his van and helping them with homework. A friend of Randy Fiscus, a twenty-one year old man named Ted Knisley, was also at the M. home with the children on occasion. Don and Randy Fiscus, as well as Knisley, lived on Front Street in Warren. The M. children often went to Front Street to play with Don Fiscus’ children, Randy Fiscus, or other children in the area. According to CYS, at least two suspected sexual offenders lived on or near Front Street. CYS considered Randy Fiscus and Knisley to be “questionable”, or “from a family of all sexual perpetrators.” However, there was no evidence of any wrongdoing by these or other persons.

At the conclusion of the hearing, the trial court held that CYS had failed to prove by clear and convincing evidence that the children were dependent. The court, however, voiced serious concerns about the presence of older men in the M. home, as well as the children’s safety while on Front Street in Warren. Therefore, the court entered an order which prohibited the children from going to the Front Street area and prohibited all males from entering the M. home without written permission from CYS.

On January 3, 1992, Jn. was born. She remained in the custody of her mother. TI., Km. and Kt., however, remained in foster care. Periodic hearings continued to be held regarding issues of visitation and F.M.’s compliance with the family service plan.

In an opinion filed June 23, 1992, the Superior Court reversed the trial court’s decree terminating F.L.M.’s parental rights. The Court found no evidence to support and, therefore, refused to be “bound by the [trial] court’s inference or deduction that [F.L.M.] is an untreated sexual offender who poses a danger to his children.” See: In re M., 416 Pa.Super. 520, 542, 611 A.2d 737, 749 (1992). The Court held that CYS had failed to establish each of the statutory criteria for termination, and that the trial court had abused its discretion and misapplied the law. Even after this decision, however, CYS continued to insist that F.L.M. not be allowed unsupervised access to his children. As of the time of this appeal, he is still living separate and apart from his family.

In October, 1992, Tl. was removed from foster care and placed back into the M. home. The following month, Km. returned home as well. In April, 1993, the last child remaining in foster care, Kt., was returned to F.M.

In May, 1993, Tl. informed one of her school teachers that she had been raped and had been fondled by several men. CYS was notified, and a preliminary investigation was conducted. On or about June 30, 1993, CYS caseworkers went to the M. home and, following interviews with the children, removed the six youngest children and took them into emergency custody. CYS then filed a petition for temporary custody. A hearing on the petition for temporary custody was held on September 2, 1993, and Tl., who was ten years old, told the trial court that Randy Fiscus had raped her on two occasions. According to her testimony, she had accompanied Fiscus in his van to pick up several of her sisters, when he parked the van at an area called the Hatch Patch, and he and Tl. had gone into the back of the van. Tl. said that Fiscus had also raped her some time after that, but she was unable or unwilling to recount the time or circumstances of the incident. Tl. also told the court that three men who were routinely in the M. home had fondled her. She reportedly had informed her mother of these incidents, but her mother had not believed her. Tl. claimed that another man had been staying overnight in the attic of the home. A medical examination of Tl. reported findings consistent with sexual abuse. The proceedings were not then completed but were continued for an independent psychological evaluation of Tl.

A second hearing on the dependency petition was held on December 8, 1993. In the interim, custody of the six children had remained with CYS. At this hearing, further testimony was received regarding the presence of unrelated men at the M. home. Tl.’s older sister, M., who was thirteen at the time, denied that men were frequenting the home. M. also stated that Tl. had told her that she had never been sexually abused.

On January 26, 1994, the trial court adjudicated the six younger M. children dependent. An amended order was filed two days later which placed custody of these children with CYS. The parents appealed.

“Dependency proceedings concern themselves with the correction of situations in which children are lacking proper parental care or control.” In Interest of Garthwaite, 422 Pa.Super. 280, 283, 619 A.2d 356, 358 (1993). A dependent child is one who “is without proper parental care or control____” 42 Pa.C.S. § 6302. “Whether a child is lacking proper parental care and control encompasses two discrete questions: (1) Is the child at this moment without proper parental care or control? and (2) If so, is such care and control immediately available?” In re Jeffrey S., 427 Pa.Super. 79, 80-81, 628 A.2d 439, 440 (1993). See also: In re J.C., 412 Pa.Super. 369, 373, 603 A.2d 627, 628 (1992); In re Justin S., 375 Pa.Super. 88, 99, 543 A.2d 1192, 1197 (1988); In Interest of Anita H., 351 Pa.Super. 342, 344-345, 505 A.2d 1014, 1015 (1986).

“Even if a child is adjudicated dependent under the Juvenile Act, he [or she] cannot be separated from his [or her] parents absent a showing that the separation is clearly necessary.” In Interest of Feidler, 392 Pa.Super. 524, 527, 573 A.2d 587, 588 (1990), citing In Interest of SA.D., 382 Pa.Super. 166, 555 A.2d 123 (1989). “Such necessity is implicated where the welfare of the child demands that he [or she] be taken from his [or her] parents’ custody.” In re S.M., 418 Pa.Super. 359, 365, 614 A.2d 312, 314 (1992). See also: In re Miller, 380 Pa.Super. 423, 552 A.2d 261 (1988). “[A] decision to remove a child from his or her parents’ custody must be reconciled with the ‘paramount purpose’ of preserving family unity.” In re S.M., supra at 365, 614 A.2d at 314-415, quoting In re Frank W.D., 315 Pa.Super. 510, 462 A.2d 708 (1983).

“The burden of proof in a dependency proceeding is on the petitioner ... who must show [that] the juvenile is without proper parental care, and that such care is not immediately available.” Matter of B.R., 408 Pa.Super. 345, 351, 596 A.2d 1120, 1123 (1991). See also: In re Swope, 391 Pa.Super. 484, 487, 571 A.2d 470, 472 (1990). A finding of dependency must be supported by clear and convincing evidence that proper parental care and control are not available. In re S.M., supra at 362, 614 A.2d at 313; Matter of B.R., supra at 351, 596 A.2d at 1123; In Interest of Palmer, 404 Pa.Super. 314, 318, 590 A.2d 798, 800 (1991); In re Miller, supra at 428, 552 A.2d at 264; In Interest of Leslie H., 329 Pa.Super. 453, 456, 478 A.2d 876, 878 (1984). “The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-1204 (1989). See also: In Interest of Palmer, supra at 318, 590 A.2d at 800; In the Matter of Jackson, 302 Pa.Super. 369, 374, 448 A.2d 1087, 1089 (1982); In re Jackson, 267 Pa.Super. 428, 431, 406 A.2d 1116, 1118 (1979). “Without such evidence, a child cannot be adjudged dependent and must be returned promptly to his or her parent.” In re Jeffrey S., supra at 81, 628 A.2d at 440. See also: In re Justin S., supra at 99, 543 A.2d at 1197; In re Haynes, 326 Pa.Super. 311, 315, 473 A.2d 1365, 1367 (1984).

Our standard of review in dependency cases has been described as follows:

The standard of review which this Court employs in dependency cases is broad. However, the scope of our review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. Relying on this unique posture, we will not overrule his findings if they are supported by competent evidence.

In re M.K., 431 Pa.Super. 198, 203-204, 636 A.2d 198, 201 (1994), allocatur denied, 537 Pa. 633, 642 A.2d 486 (1994), quoting In re Frank W.D., supra. See also: In Interest of C.L., 436 Pa.Super. 630, 636, 648 A.2d 799, 802 (1994); In Interest of R.C., 427 Pa.Super. 196, 202, 628 A.2d 893, 897 (1993); In re B.B., 424 Pa.Super. 399, 405, 622 A.2d 979, 982-983 (1993).

In general, a finding of abuse has been held sufficient under most circumstances to support an adjudication of dependency. In re Jeffrey S., supra at 83, 628 A.2d at 441; In re Justin S., supra at 103, 543 A.2d at 1199. However, a child should not be found dependent merely because a sibling is dependent. In Interest of R.T., 405 Pa.Super. 156, 168, 592 A.2d 55, 61 (1991); In Interest of Theresa E., 287 Pa.Super. 162, 173, 429 A.2d 1150, 1156 (1981).

This is a most difficult case. The trial court found that Tl. had been abused sexually and was “suspicious” that the other M. children had not been cared for properly and were in danger because of the presence of male persons who had access to the home of the children’s mother. CYS shared these suspicions and was responsible, in large measure, for imparting them to the court. The record is clear, however, that CYS has been unable to produce evidence of any specific neglect or abuse of the M. children other than the abuse of Tl., to which she alone testified.

The record suggests numerous reasons for questioning the credibility of Tl.’s accusations of sexual abuse. The trial court, however, rejected such credibility challenges and found that Tl. had testified truthfully. Because there is competent evidence to support this finding, we accept and are bound by it.

There is no competent evidence, however, to support the trial court’s finding that any other children were dependent. Even CYS did not contend that the two oldest children, Js. and Ts., were dependent; and, therefore, it did not include them in its petition. As to the remaining children, M., Fjr., Km., Kt. and Jn., there is nothing but innuendo and suspicion. There is no evidence that the children have been either neglected or abused. It may be, as CYS opines, that it can find better parents for the M. children than F.L.M. and F.M., but this alone does not support the court’s finding of dependency. The petitioner was required to show by clear and convincing evidence that proper parental care and control were not available.

As was stated by the Superior Court in Rinker Appeal, 180 Pa.Super. 143, 117 A.2d 780 (1955):

It is a serious matter for the long arm of the state to reach into a home and snatch a child from its mother. It is a power which a government dedicated to freedom for the individual should exercise with extreme care, and only where the evidence clearly establishes its necessity. Yet, of course, there are cases where such authority must be exercised for. the protection and welfare of children.
Under our system of government children are not the property of the state to be reared only where and under such conditions as officials deem best. On the other hand the state is interested in establishing a minimum standard of care for a child’s physical, intellectual and moral well being. But this minimum standard must be viewed in the light of experience. Although there are many very good homes, there is no such thing as a “perfect home.”
A child cannot be declared “neglected” merely because his condition might be improved by changing his parents. The welfare of many children might be served by taking them from their homes and placing them in what the officials may consider a better home. But the Juvenile Court Law was not intended to provide a procedure to take the children of the poor and give them to the rich, nor to take the children of the illiterate and give them to the educated, nor to take the children of the crude and give them to the cultured, nor to take the children of the weak and sickly and give them to the strong and healthy.

Id. at 148,117 A.2d at 783. See also: In Interest of Coast, 385 Pa.Super. 450, 464-465, 561 A.2d 762, 769 (1989) (en banc), allocatur denied, 525 Pa. 593, 575 A.2d 560 (1990); In re Adoption of 348 Pa.Super. 65, 71, 501 A.2d 648, 651 (1985), allocatur denied, 514 Pa. 636, 522 A.2d 1105 (1987); In re Anderson, 317 Pa.Super. 490, 494-495, 464 A.2d 428, 430 (1983); In re Custody of Frank, 283 Pa.Super. 229, 247, 423 A.2d 1229, 1239 (1980); In the Interest of LaRue, 244 Pa.Super. 218, 227, 366 A.2d 1271, 1275-1276 (1976); Matter of DeSavage, 241 Pa.Super. 174, 184-185, 360 A.2d 237, 242 (1976).

Because the evidence failed to show that proper parental care and control were not available, we find it necessary to reverse the adjudication which found the five remaining children dependent.

Appellants contend also that the court erred when it allowed Tl. to testify in camera without the presence of her parents but in the presence of the director of the foster home in which the child was living. However, the “conduct of a trial is within the discretion of the trial judge, and his [or her] exercise of discretion will not be reversed in the absence of an abuse thereof.” Kearns v. Clark, 343 Pa.Super. 30, 40, 493 A.2d 1358, 1363 (1985). Moreover, the provisions of the Juvenile Act make it clear that the court may admit to in camera proceedings “other persons accompanying a party or a victim for his or her assistance.” 42 Pa.C.S. § 6336(d). Thus, a large discretion was vested in the trial court, Commonwealth v. Dress, 354 Pa. 411, 414, 47 A.2d 197, 199 (1946), and we are hard pressed to find any support for appellants’ contention that the court abused its discretion in this case. The child was questioned by the court and by counsel for the several parties, and it does not appear that the director either participated in the questioning or influenced the witness’s testimony. Therefore, we find no error. See: Commonwealth v. Pankraz, 382 Pa.Super. 116, 554 A.2d 974 (1989), allocatur denied, 522 Pa. 618, 563 A.2d 887 (1989) (trial court did not abuse discretion by permitting child witness to sit on grandmother’s lap while giving testimony).

The trial court’s order adjudicating Tl. dependent is affirmed. That portion of the order which adjudicates the other children dependent, however, is reversed; and said children shall be returned to the custody of their parents.

OLSZEWSKI, J., files a Dissenting Opinion.

OLSZEWSKI, Judge,

dissenting.

I respectfully dissent from that part of the decision which reverses the hearing court’s order adjudicating J.M., born 1/03/92, K.M., born 4/22/88, K.M., born 6/25/86, M.M., born 6/01/80, and F.M., Jr., born 3/19/81, dependent. It was not an abuse of discretion to find appellant-mother to be a dysfunctional parent who did not promote the safety and welfare of her children. The children’s placement outside the home is therefore necessary. Moreover, the reasons compelling placement of T.M. are equally applicable when adjudicating the dependency of the other five children. The fact that these five children did not share as harsh a fate as T.M. is fortuitous, and not a positive reflection of the parenting skills of appellant-mother.

The majority quotes In re M.K. for the proposition that our standard of review in dependency eases is broad. 431 Pa.Super. 198, 203-204, 636 A.2d 198, 201, allocatur denied, 537 Pa. 633, 642 A.2d 486 (1994). Unfortunately, while In re M.K. accurately quotes In re Frank W.D., 315 Pa.Super. 510, 517, 462 A.2d 708, 711 (1983), In re Frank W.D. does not accurately quote its source, In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978), for Neal simply states that “appellate review of child custody cases is of the broadest type.” Id. at 152, 393 A.2d at 1058. Neal cites to both Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972) and Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977), both of which state that our scope of review is broad. Sadly, we have been perpetuating a misquotation and thus confusing scope with standard of review in child placement cases.

“Scope of review” and “standard of review” are often— albeit erroneously — used interchangeably. The two terms carry distinct meanings and should not be substituted one for another. “Scope of review” refers to “the confines within which an appellate court must conduct its examination.” Coker v. S.M. Flickinger Company, Inc., 533 Pa. 441, 450, 625 A.2d 1181, 1186 (1993). In other words, it refers to the matters (or “what”) the appellate court is permitted to examine. In contrast, “standard of review” refers to the manner in which (or “how”) that examination is conducted.... [W]e also referred to the standard of review as the “degree of scrutiny” that is to be applied. Id., 625 A.2d at 1186.

Morrison v. Commonwealth, Dept. of Public Welfare, 538 Pa. 122, -, 646 A.2d 565, 570 (1994) (emphasis in original).

This distinction is important. To facilitate our broad review, we require the hearing judge to furnish a “full and complete explanation of the reasons underlying his decision, which reasons should be set forth in a complete, comprehensive Opinion.” Neal, 260 Pa.Super. at 153, 393 A.2d at 1058 (quoting Commonwealth v. ex rel. Fox v. Fox, 216 Pa.Super. 11, 17-18, 260 A.2d 470, 473 (1969); see also Tobias, 248 Pa.Super. at 171-73, 374 A.2d at 1374. The majority does not hold that the ten-page opinion of the Honorable Robert L. Wolfe is deficient. Our scope of review, therefore, in determining the propriety of a decision to terminate parental rights “is limited to whether the decision of the court below was supported by competent evidence.” In re E.S.M., 424 Pa.Super. 296, 302, 622 A.2d 388, 391 (1993). Where the hearing judge has fully supported her reasons for severing parental rights, and the record buttresses those reasons, we will not reverse her decision “[ajbsent an abuse of discretion, an error of law or insufficient evidentiary support for the ... decision.” Id. (citation omitted).

We will not presume an abuse of discretion when the hearing judge complies with the requirements outlined in Neal and Tobias, supra. Neal, 260 Pa.Super. at 152-54, 393 A.2d at 1058. “The term ‘discretion’ imports the exercise of judgment, wisdom, and skill so as to reach a dispassionate conclusion, and discretionary power can only exist within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge.” Id. 533 Pa. at 447, 625 A.2d at 1184 (citation omitted). An abuse of discretion occurs not merely when there is an error of judgment, but when that judgment is “manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias, or ill will.” Id. at 447, 625 A.2d at 1185 (citation omitted). In other words, the decision has to have merit. Id.

In reviewing such decisions, “we generally defer to the trial court’s judgment because, by virtue of its position, it is uniquely qualified to determine factual matters.” Id. at 452, 625 A.2d at 1187. The trial court’s on-the-scene evaluation gives it a vantage point more suited to review the facts than an appellate court, which is limited by the cold record. Thompson v. City of Philadelphia, 507 Pa. 592, 599, 493 A.2d 669, 672-73 (1985). In the case sub judice, I find no indication that the hearing court’s decision was the product of prejudice, ill-will, bias, or partiality. As the majority admits, “[t]his is a most difficult case.” Majority opinion at 417. In such difficult cases, the final outcome is determined by all of the insights, experiences, and legal training a judgé brings to bear. To say that we, with our experience, training, and philosophies, would have rendered a different decision is a far cry short of impugning the merit of the determination under consideration. I would therefore find no abuse of discretion in Judge Wolfe’s decision.

Nor does the majority point to any error of law made by the hearing court, apart from a failure by appellee to show that proper parental care and control was not available, and that the evidence supporting a judgment of dependency did not meet the required clear and convincing standard. Both of these rulings in effect state that the evidence is insufficient to find five of the six children to be dependent.

In reviewing sufficiency-of-the-evidence claims, our standard of review “is limited to viewing the evidence in the light most favorable to ... the verdict winner; our sole duty is to decide whether there was sufficient evidence to sustain the verdict.” Matter of B.R., 408 Pa.Super. 345, 350-51, 596 A.2d 1120, 1123 (1991). The majority does not look at the evidence in the light most favorable to Warren County Children and Youth Services (CYS), the verdict winner. In that light, I would find the following: appellant-mother was ordered by the court not to allow older men to enter the M. home without ■written permission from CYS; appellant-mother violated that order by allowing men into the home, one of whom even lived in the attic; the children were improperly supervised; one daughter, T.M., had been raped and fondled by several men; appellant-mother had been alerted to an alleged history of sexual misconduct of one of these men, yet seemed to do nothing to keep him away from the children; and, the rape occurred as the perpetrator was on his way to pick up not only his nine-year-old victim, but also several of her sisters.

The majority appears to substitute its judgment for that of the hearing court, an impermissible task we are ill-suited to accomplish. When viewed in the light most favorable to CYS, I would hold that the evidence is sufficient to find that there was inadequate supervision of the six M. children adjudicated dependent. See In Interest of Palmer, 404 Pa.Super. 314, 318, 590 A.2d 798, 800 (1991) (“In order to find a child ‘dependent’ under the Juvenile Act [42 Pa.C.S.A. § 6301 et seq.], it must be shown that the child is ‘without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals.’ 42 Pa.C.S.A. § 6302.”).

After having agreed that the evidence is sufficient to adjudicate T.M. dependent, the majority goes on to state that “[tjhere is no competent evidence, however, to support the trial court’s finding that any other children were dependent.” Majority opinion at 417. The trier of fact is the sole arbiter of T.M.’s credibility. In re Adoption of B.G.S., 418 Pa.Super. 588, 614 A.2d 1161 (1992). Having accepted T.M.’s testimony as competent and sufficient to determine her own dependency, it is inconsistent that we should reject that same testimony as being incompetent, incredible, or insufficient to determine the dependency of her siblings. If the case in support of finding five of the children dependent is based on “innuendo and suspicion,” then the determination that T.M. is dependent is equally suspect. The majority realizes, however, that to question the hearing court’s factual determinations regarding T.M.’s testimony impermissibly interjects us into the fact-finding province of the trial court.

The hearing court did not adjudicate five of the children to be dependent simply because their sibling was judged to be dependent; nor does this case turn on whether or not each of the children is an actual victim of sexual abuse. The children were not adjudicated dependent because they were sexually molested. The charges of rape and molestation were leveled against third parties to the action herein. That a friend or neighbor raped T.M. is not the reason T.M. has been placed outside the home. It is the proof that appellant-mother has failed to adequately supervise and protect her children. No parent is a deficient caretaker because a child is harmed. She can be judged to be dysfunctional, however, for allowing her children to be repeatedly placed in harm’s way. More to the point, she certainly abrogates her parental responsibilities when she knowingly invites that harm into her children’s home. That more children were not sexually abused is a result of felicitous fortune, not familial fidelity.

For the foregoing reasons, I join with the majority in affirming the hearing court’s order finding T.M. dependent. I dissent from that part of the decision reversing the hearing court’s determination regarding the other five children.

      . Although a review of the record discloses that CYS has played an adversarial role in these proceedings, it has not seen fit to file a brief in this Court.

      . No criminal charges have ever been filed against F.L.M.

      . It is ironic that CYS continues to insist that the children’s father not live with his children. His “sin”, it appears, is his continuing refusal to "admit” that he abused his daughter, Tl.

      . It is significant that neither the trial court nor the author of the dissenting opinion has identified any evidence of specific neglect with respect to the remaining five children.

      . See majority opinion at 881.

      . See majority opinion at 881.

      . Appellant-mother also raises the claim that counsel for the children was ineffective for not assisting one of the children, M.M., in her desire to be reunited with appellant-mother. Given that M.M. testified that she wished to return home, I would find this argument without merit. See N.T. 12/8/93 at 51, 65. The majority did not address this issue because its decision finds in favor of appellant-mother on other grounds, and, accordingly, does reincorporate M.M. into appellant-mother’s household.


author: BROSKY, Judge: TAMILIA, Judge,

text:
    652 A.2d 885
    COMMONWEALTH of Pennsylvania v. David E. DAVIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 21, 1994.
    Filed Jan. 11, 1995.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before McEWEN, TAMILIA and BROSKY, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence entered following appellant’s conviction for attempted rape. Appellant presents two issues for review: (1) whether trial counsel was ineffective in failing to impeach the credibility of the victim with evidence of her pending criminal charges; and (2) whether trial counsel was ineffective in failing to preserve this issue for appellate review. For the reasons set forth below, we vacate the judgment of sentence and remand for further proceedings consistent with the following discussion.

Before addressing the merits of appellant’s claims, we will briefly recount the relevant facts. During the early afternoon hours of March 2, 1993, appellant, David Davis, encountered the female victim. Appellant and the victim went to appellant’s residence where they engaged in various acts of ordinary and deviate sexual intercourse. The victim departed from appellant’s residence and immediately apprised the police of the incident. As a result, appellant was arrested and charged with various offenses.

A jury trial was held from November 17 through November 22,1993 following which appellant was acquitted of all offenses except for the act of attempted rape. Post-trial motions were filed by trial counsel. In addition, appellant was granted leave to file pro se supplemental post-trial motions. All of appellant’s post-trial motions were denied and he was sentenced to a term of five (5) to ten (10) years imprisonment. Appellant then initiated this timely appeal therefrom.

Both of appellant’s allegations of error implicate the ineffectiveness of trial counsel. In order for appellant to prevail on these issues he must show: (1) that the underlying claim is of arguable merit; (2) that the particular course of conduct of counsel did not have some reasonable basis designed to effectuate his interests; and (3) that counsel’s ineffectiveness prejudiced him, i.e., that absent counsel’s ineffectiveness, the result in his case would have been different. Commonwealth v. Howard, 538 Pa. 86,-,-, 645 A.2d 1300,1304, 1305 (1994). To establish the element of prejudice, appellant must demonstrate that “counsel’s ineffectiveness was of such magnitude that it could have reasonably had an adverse effect on the outcome of the proceedings.” Id., — Pa. at-, 645 A.2d at 1307. However, trial counsel cannot be held ineffective for failing to take futile actions or to raise a meritless claim. Id., — Pa. at-, 645 A.2d at 1304. We shall evaluate appellant’s allegations of ineffectiveness in accordance with these principles.

At the outset, we note that appellant has been represented throughout the trial, post-trial, sentencing and appellate proceedings by various members of the Allegheny County Public Defender’s Office. Members of the public defender’s office are considered members of the “same firm” for purposes of presenting a claim of ineffectiveness of counsel. See Commonwealth v. Via, 455 Pa. 373, 377, 316 A.2d 895, 898 (1974), quoted in Commonwealth v. Westbrook, 484 Pa. 534, 539, 400 A.2d 160, 162 (1979); Commonwealth v. Green, 379 Pa.Super. 602, 605-606, 550 A.2d 1011, 1012 (1988). Consequently, we are presented with a situation in which appellant’s counsel is in essence challenging his own ineffectiveness. In such circumstances, our Supreme Court has indicated that the case should be remanded-for the appointment of new counsel except: (1) where it is clear from the record that counsel was ineffective; or (2) where it is clear from the record that the ineffectiveness claim is meritless. Commonwealth v. McBee, 513 Pa. 255, 261, 520 A.2d 10, 13 (1986). We must accordingly examine appellant’s claims to ascertain whether a remand is necessary.

Appellant’s allegations require us to ascertain whether trial counsel was ineffective in failing to cross-examine the victim regarding the possibility of any lenient treatment she might receive with respect to her then outstanding criminal charges. However, the existing record does not enable us to definitively determine whether the victim and the individual against whom the criminal charges were pending are indeed the same person. If the identity of the accused individual and the victim are not the same, then appellant’s claims would appear to be meritless and he would not be entitled to any relief. Conversely, relief may be warranted in the event it is established that the victim did have charges pending against her at the time of appellant’s trial. We must therefore analyze appellant’s claim under the latter scenario, ie., we will assume, for purposes of this discussion only, that charges were pending against the victim.

Our Supreme Court has held “that a witness may be cross-examined as to any matter tending to show the interest or bias of that witness.” Commonwealth v. Nolen, 535 Pa. 77, 83, 634 A.2d 192, 195 (1993).

[WJhenever a prosecution witness may be biased in' favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it. The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury’s determination of the case.

Commonwealth v. Hill, 523 Pa. 270, 273, 566 A.2d 252, 253 (1989) (citation omitted). Where the determination of a defendant’s guilt or innocence is dependent upon the credibility of a prosecution witness, it is particularly important that the defendant be accorded an adequate opportunity to demonstrate through cross-examination that the witness is biased. Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992).

As applied here, it is undisputed that trial counsel did not attempt to demonstrate any potential bias by cross-examining the victim with respect to her pending criminal charges. Appellant’s claim thus appears to have arguable merit unless the exclusion of this evidence was harmless error. See, e.g., Commonwealth v. Nolen, 535 Pa. at 84-85 n. 4, 634 A.2d at 196 n. 4 (rejecting rule that a trial court’s refusal to permit cross-examination as to the witness’ possible bias is always reversible error; after reviewing the record, the court determined that the error was harmless).

[A]n error will be deemed harmless where the appellate court is convinced beyond a reasonable doubt that the error could not have contributed to the verdict. Guidelines for determining whether an error is harmless include: (1) whether the error was prejudicial to the defendant or if prejudicial, whether the prejudice was de minimis; (2) whether the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) whether the evidence of guilt was so overwhelming as established by properly admitted and uncontradicted evidence that the prejudicial effect of the error was so insignificant by comparison to the verdict.

Commonwealth v. Nolen, 535 Pa. at 85, 634 A.2d at 196 (citation omitted).

Consideration of these factors persuades us that the error was not harmless in this instance. The Commonwealth suggests that trial counsel’s omission was harmless because the offenses which were pending against the victim were committed after the incident involving appellant, thereby weakening the inference of possible bias against appellant. Notwithstanding the Commonwealth’s argument, the Supreme Court has recognized that:

the victim, as accuser, must be subject to the utmost scrutiny if his [or her] accusations are to fairly form the basis of the criminal prosecution at hand. The strength or weakness derived from an attempt to show that the victim has some ulterior motive for continuing his [or her] role as an accuser due to subsequent acts, bringing him into the sphere of the influence by the prosecutor, must rightly be determined by the jury, which, after hearing all the evidence in the matter before them, will be most able to ferret out the presence or absence of improper motive on the part of the victim.

Commonwealth v. Borders, 522 Pa. 161, 165, 560 A.2d 758, 760 (1989). See also Commonwealth v. Hill, 523 Pa. at 274, 566 A.2d at 253 (rejecting Commonwealth’s argument that victim’s testimony cannot be affected by delayed sentencing in the victim’s subsequent misdeed; the court further reiterated that the weight to be accorded the evidence of bias is a matter best left to the jury’s determination and is not to be decided through the speculation of either the prosecutor or the appellate courts).

Moreover, the cases referenced by the Commonwealth, which have found the lack of cross-examination to be harmless, are distinguishable in that they involved situations in which the witnesses’ testimony was corroborated by other individuals or was not of crucial importance to the Commonwealth’s case. See, e.g., Commonwealth v. Nolen, 535 Pa. at 85, 634 A.2d at 196-197 (preclusion of cross-examination regarding witness’ possible bias was harmless where his testimony did not place the defendant at the scene of the crime and was corroborated by other witnesses); Commonwealth v. Gentile, 433 Pa.Super. 381, 389-390, 640 A.2d 1309, 1314 (1994) (error in excluding evidence of bias was deemed harmless where witness’ testimony was confirmed by other -witnesses); Commonwealth v. Culmer, 413 Pa.Super. 203, 213-214, 604 A.2d 1090, 1095 (1992) (trial court’s refusal to permit defendant to cross-examine victim on pending adult charge and juvenile charges which were open as of the time of the shooting but were closed at the time of trial was harmless error where shooting victim’s testimony was corroborated by others and the inference of possible bias was extremely tenuous). See also Commonwealth v. Lane, 533 Pa. 276, 280, 621 A.2d 566, 568 (1993) (error in prohibiting cross-examination as to the witness’ pending kidnapping and attempted rape charges was harmless where witness was cross-examined on other pending criminal offenses).

Unlike the above authorities, there were no other witnesses who corroborated the victim’s testimony in this case. Moreover, the victim was the crucial prosecution witness because she was the victim of the crime. Credibility of the victim and appellant was also a key issue as appellant’s and the victim’s version of the incident differed on the question of whether the conduct was consensual. It also appears that the jury did not find the victim’s version to be wholly plausible, as appellant was acquitted of all offenses except for the charge of attempted rape. Further, appellant’s testimony suggested that the victim was biased/had a motive to lie to exact revenge for appellant’s failure to pay her as he had promised. Under these circumstances, evidence of the victim’s potential bias may well have persuaded the jury to completely reject the victim’s testimony and acquit appellant. We are therefore unable to agree with the Commonwealth that trial counsel’s failure to introduce evidence of bias was harmless. See Commonwealth v. Birch, 532 Pa. at 567-568, 616 A.2d at 979 (exclusion of evidence regarding the victim’s possible bias warranted the grant of a new trial where the victim had possible motives to lie and conflicting versions of the incident were given by the prosecution and defense witnesses). Consequently, appellant has established that his underlying claim is of arguable merit.

We must next consider whether trial counsel’s omission had a reasonable basis that was designed to effectuate appellant’s interests. Although the existing record does not enlighten us as to trial counsel’s reasons for his conduct, it is highly improbable that trial counsel would intentionally forgo an attempt to demonstrate the victim’s possible bias as a matter of trial strategy, since the proposed impeachment could only have helped rather than hurt appellant’s defense. The second prong of the ineffectiveness test has thus been met.

Finally, appellant must show that the result in his case would have been different absent the alleged ineffectiveness of his counsel. Commonwealth v. Howard, supra, 538 Pa. 86, 645 A.2d 1300. As previously indicated, the jury acquitted appellant of all charges save one, thus suggesting that it did not deem the victim’s testimony to be credible. Under these particular circumstances, evidence establishing the possible bias of the victim may well have tipped the balance in favor of appellant and led to his acquittal on the remaining charge. Accordingly, appellant has sufficiently demonstrated that he was actually prejudiced by trial counsel’s omission.

Appellant would thus appear to be entitled to a new trial provided that the victim indeed had pending criminal charges at the time of appellant’s trial. However, the Commonwealth does not concede that the identity of the victim and the identity of the individual charged with the offenses is the same. Because the existing record does not enable us to resolve this matter, we are unable to definitively determine whether trial counsel was in fact ineffective. It is therefore necessary to vacate the judgment of sentence and remand for further proceedings consistent with the above discussion. See Commonwealth v. McBee, supra 513 Pa. 255, 520 A.2d 10.

Because the effectiveness of appellant’s counsel is unclear from the present record, new counsel must be appointed upon remand. See Commonwealth v. McBee, supra. New counsel should be afforded the opportunity to review the record to determine whether any additional grounds or ineffectiveness claims may exist. See, e.g., Commonwealth v. Via, 455 Pa. at 378, 316 A.2d at 898 (providing the defendant with the opportunity to explore the competency of trial counsel at a hearing where he had been represented by members of the same firm at trial and in a prior PCHA proceeding). If further proceedings reveal that the individual charged with the offenses and the victim are not the same person, and if there are no other grounds necessitating the grant of a new trial, the judgment of sentence is to be reinstated. Conversely, appellant is to be awarded a new trial if he can show that the identity of the victim and the person charged is the same. A new trial would likewise be warranted in the event appellant can establish, in accordance with the requisites of Commonwealth v. Howard, supra 538 Pa. 86, 645 A.2d 1300, any other instances of ineffectiveness.

Judgment of sentence vacated. Remanded for further proceedings. Jurisdiction relinquished.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting:

I respectfully dissent to the majority disposition which ultimately must lead to granting a new trial. I believe since the issue is framed in the context of an ineffectiveness of counsel purview, and the majority concedes the record fails to disclose trial counsel’s strategy for failing a vigorous cross-examination of the Commonwealth victim/witness, a new trial is not warranted. Rather, the matter should be remanded for appointment of new trial counsel with direction to have an evidentiary hearing to determine the basis for trial counsel’s actions. The majority engages in a great deal of speculation concerning the character and bias of the prosecution witness and the possible reasoning of the jury. The Commonwealth as verdict winner is entitled to have all inferences found in its favor by the appellate court and not the reverse. While I find it difficult to perceive how the test of ineffectiveness of counsel has been met, particularly as to prejudice resulting in a miscarriage of justice, I would accept remand for an evidentiary hearing.

If no reasonable and supportable basis is established for counsel’s action, and such action or non-action resulted in a miscarriage of justice, only then should the trial court be required to grant a new trial. In any event, this Court should not vacate the judgment of sentence upon remand. To do so, absent substantial error evident on the record before this Court which requires a new trial, sets aside a presumably valid judgment of sentence upon the mere allegation that error might have been committed. Until such error has been established by the trial court after an evidentiary hearing, the appellant stands properly committed. To vacate sentence and release any and all appellants who are granted an evidentiary hearing based upon ineffectiveness of counsel, pursuant to an alleged violation of an evidentiary rule of criminal procedure or a PCRA petition, can present serious problems to the community by release of dangerous offenders who may commit additional crimes or abscond. The fact that the Commonwealth may request incarceration or bonding of the appellant pending judicial review does not alleviate the possibility of freeing appellant and the attendant difficulty and harm to the community. The entire range of criminal procedures and trial have been afflicted by dangers and intimidations that never before existed in our history. Abusive persons and stalkers released for short periods of time have killed their victims, despite police and court restraint, not to mention the escalating problem of murder and intimidation of witnesses by accused persons which has drawn national attention and is to be considered in congressional hearings.

      . 18 Pa.C.S.A. § 901(a) (attempt); 18 Pa.C.S.A. § 3121(1) and (2) (rape).

      . The victim indicated that appellant forced her into his residence by holding a gun to her back and threatening to kill her. The victim further claimed that appellant raped her, forced her to perform several episodes of fellatio and had attempted to engage in anal sex. Appellant, however, testified that the victim agreed to engage in consensual sexual intercourse with him in exchange for his payment of the sum of $40.00. Appellant further admitted that the victim performed an act of fellatio on him. Appellant denied that he attempted to anally rape the victim; rather, appellant indicated that such contact was accidental and inadvertent. Appellant stated that after the completion of these activities, the victim demanded her money. When appellant refused to pay, the victim became upset and left appellant’s residence.

      . The victim's convictions for prostitution would certainly have strengthened appellant's defense theory that the victim had voluntarily engaged in sexual intercourse and that she had only brought these charges in retaliation for appellant’s failure to pay her. While evidence of the victim's sexual conduct would not have been admissible under the Rape Shield Law, 18 Pa.C.S.A. § 3104 for the purpose of impugning the victim’s moral character, such evidence might have been introduced to establish the victim’s bias/motive to lie. See, e.g., Commonwealth v. Spiewak, 533 Pa. 1, 7-12, 617 A.2d 696, 699-702 (1992) (evidence that victim had engaged in oral intercourse with a man other than the defendant was admissible, despite the Rape Shield Law, for the purpose of impeaching the victim’s credibility and demonstrating that the victim did not have sexual contact with the defendant prior to the victim’s sixteenth birthday); Commonwealth v. Wall, 413 Pa.Super. 599, 632, 606 A.2d 449, 466, allocatur denied, 532 Pa. 645, 614 A.2d 1142 (1992) (evidence of prior sexual molestation of the victim by her mother’s paramour was admissible to demonstrate the victim’s motive to lie; the defendant sought to show that the victim had a motive to fabricate the charges so that she would be removed from the defendant’s home, as the victim wanted to escape the discipline imposed by her aunt, who was the defendant's wife).

      . As we are remanding this case for further proceedings, trial counsel nonetheless should be given the opportunity to explain why he chose not to cross-examine the witness with regard to her pending criminal charges.

      . Further clarification is required in view of our colleague's dissent. We have not granted appellant a new trial. Rather, we have remanded this matter to the trial court for an evidentiary hearing to primarily determine: (1) whether the victim in this case and the individual who had charges pending against her at the time of appellant’s trial are one and the same person; and if so, (2) whether trial counsel had any reasonable basis for failing to cross-examine the victim with respect to her convictions. In the event it is determined upon remand that the victim and the charged individual are indeed the same person and that trial counsel lacked any reasonable basis for his omission, then appellant is to be granted a new trial. Of course, a new trial should also be awarded in the event new counsel can demonstrate any other instance of ineffectiveness by prior counsel which warrants such relief. Otherwise, the judgment of sentence is to be reinstated. Because it is necessary to remand for an evidentiary hearing in this instance, the judgment of sentence cannot properly be affirmed or reversed. Thus, the appropriate course of action is to vacate the judgment of sentence until the matters in question can be definitively resolved at the hearing. See, e.g., Commonwealth v. Roberts, 428 Pa.Super. 156, 161-162, 630 A.2d 869, 871-872 (1993), allocatur granted, 536 Pa. 641, 639 A.2d 26 (1994) (temporarily vacating judgment of sentence where it was necessary to remand for an evidentiary hearing as to the ineffectiveness of trial counsel); Commonwealth v. Anderson, 410 Pa.Super. 524, 533, 600 A.2d 577, 581-582 (1991), allocatur denied, 531 Pa. 644, 612 A.2d 983 (1992) (temporarily vacating judgment of sentence where case was remanded or an evidentiary hearing regarding trial counsel's effectiveness). Moreover, our disposition will not result in appellant’s automatic release from prison. See, e.g., Pa.R.A.P., Rule 1762, 42 Pa.C.S.A. (governing release in criminal matters and providing that the lower court may enter bail in accordance with the Rules of Criminal Procedure); Pa.R.Crim.P., Rules 4001-4017, 42 Pa.C.S.A. (governing a criminal defendant’s right to bail).