author: MONTEMURO, Judge:

text:
    506 A.2d 420
    COMMONWEALTH of Pennsylvania v. William C. THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1985.
    Filed March 10, 1986.

      Francis M. Socha, Harrisburg, for appellant.
    John H. Reed, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before ROWLEY, OLSZEWSKI and MONTEMURO, JJ.
   MONTEMURO, Judge:

Before us is an appeal from the judgment of sentence of the Court of Common Pleas of Dauphin County entered against appellant following his entry of a plea of nolo contendere to two counts of perjury.

On June 20, 1983, and July 19, 1983, appellant appeared as a witness before a multi-county investigating grand jury, convened for the stated purpose of investigating widespread drug trafficking. The Honorable John C. Dowling of the Court of Common Pleas of Dauphin County was the designated supervising judge of the grand jury and the grand jury was impaneled in the Dauphin County Courthouse. See 42 Pa.C.S. § 4544. When questioned before the grand jury, appellant denied that he had any knowledge of any individuals involved in drug trafficking and further denied that he personally was involved in such activity.

On the basis of appellant’s sworn representations, the grand jury subsequently issued a presentment recommending in part that appellant be prosecuted for his failure to testify truthfully. Thereafter, on August 25, 1983, a criminal complaint was filed in the Court of Common Pleas of Dauphin County charging appellant with perjury, false swearing, and obstructing the administration of justice.

On November 16, 1983, appellant, represented by the public defender, filed an omnibus pre-trial motion seeking dismissal of the charges. Appellant’s motion challenged the bases for convening, and the authority of, the grand jury and alleged the denial of legal counsel for the purpose of appellant’s grand jury testimony. On January 5, 1984, appellant filed a motion for a change of venue and for the appointment of a private investigator. Following a hearing on January 16, 1984, the court below denied appellant’s motions in so far as they sought dismissal of the charges or a change of venue, yet the court granted appellant’s request for an investigator.

On May 15, 1984, appellant appeared before the Honorable William W. Lipsitt and entered a plea of nolo contendere to two counts of perjury. The remaining charges were dismissed and appellant was sentenced to two concurrent one to two year terms of imprisonment. It should be noted that appellant’s plea was specifically conditioned upon a reservation of the right to subsequently raise on appeal the arguments presented in his pre-trial motions and denied by the court below.

Appellant filed a pro se motion for modification/reconsideration of sentence, which was denied by an order of the court below dated June 4, 1984. This appeal followed.

Represented by new counsel for the purpose of appeal, appellant frames the following issues for our consideration:

I. Was the multi-county investigating grand jury improperly exercising its authority when it issued the presentment against appellant?
II. Did the court below err in failing to dismiss the informations against appellant due to the lack of legal representation during appellant’s testimony before the investigating grand jury?
III. Did the court below err in denying appellant’s pretrial motion for a specific change of venue?
IV. Did appellant’s trial counsel provide ineffective assistance by allowing appellant to enter a nolo contendere plea?

See Appellant’s brief at 7.

In light of the circumstances before us, we are compelled to consider to what extent, if any, appellant’s entry of a plea of nolo contendere limits appellate review of his three substantive claims.

A plea of nolo contendere should be treated the same as a guilty plea in terms of its effect upon a particular case. See Commonwealth v. Hayes, 245 Pa.Super. 521, 369 A.2d 750 (1976); Commonwealth v. Warner, 228 Pa.Super. 31, 324 A.2d 362 (1974). As recently reiterated by this court in Commonwealth v. Khorey, 347 Pa.Super. 171, 500 A.2d 462 (1985) (en banc):

‘A plea of guilty constitutes a waiver of all nonjurisdictional defects and defenses____ When a defendant pleads guilty, he waives the right to challenge anything but the legality of his sentence and the validity of his plea.’ Commonwealth v. Montgomery, 485 Pa. 110, 114, 401 A.2d 318, 319 (1979). See also: Commonwealth v. Moyer, 497 Pa. 643, 444 A.2d 101 (1982); Commonwealth v. Greer, 457 Pa. 646, 326 A.2d 338 (1974); Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974); Commonwealth v. McNeill, 453 Pa. 102, 305 A.2d 51 (1973).

Id., 347 Pa.Superior Ct. at 175, 500 A.2d at 463. Non-waivable jurisdictional defects as encompassed by the above axiom include only those which undermine a court’s subject-matter jurisdiction. See Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974). In his concurring opinion in Khorey, supra, former President Judge Spaeth aptly stated:

For a trial court to have subject matter jurisdiction to entertain a plea, not only must the crime have been committed within the county in which the court sits, but the defendant must be properly before the court, having been confronted by the Commonwealth ‘with a formal and specific accusation of the crimes charged.’

Khorey, supra, 347 Pa.Super. at 178, 500 A.2d at 465, quoting, Little, supra, 455 Pa. at 168, 314 A.2d at 273.

Of the three substantive challenges asserted by appellant, two are clearly not directed at the subject-matter jurisdiction of the court below, viz, appellant’s claimed lack of legal representation while appearing before the grand jury and the refusal of the court below to transfer venue. Therefore, we are of the opinion that these two issues have been waived by appellant’s entry of a plea of nolo contendere.

This conclusion remains' unaltered by the fact that appellant entered a “conditional plea” in an effort to preserve these issues for appeal. While we are aware of the recent recognition which conditional pleas have received in the federal court system, see Fed.R.Crim.P. 11(a)(2); United States v. Moskow, 588 F.2d 882 (3d Cir.1978); United States v. Zudick, 523 F.2d 848 (3d Cir.1975), we expressly decline, at this juncture, to so drastically modify our well-established waiver rule with regard to guilty pleas. Our research has failed to uncover any appellate decision in this Commonwealth wherein the court expressly approved the utilization of conditional pleas. Furthermore, we have not been presented herein with any argument with respect to the relative benefits and detriments of employing such pleas. Accordingly, we consider ourselves bound by the entrenched precedent of this court and of our supreme court to the effect that a guilty plea, or a plea of nolo contendere as in the case sub judice, waives for the purpose of appellate review all nonjurisdictional defects.

Appellant’s remaining substantive claim is that the multicounty investigating grand jury did not possess the authority necessary for issuing the presentment against appellant. While arguably this claim addresses itself to the subject-matter jurisdiction of the court below and might therefore be viewed as surviving the entry of appellant’s plea, because we are of the opinion that appellant lacks any standing to challenge the competency of the grand jury, we decline to consider whether in fact appellant’s challenge is waived.

In Commonwealth v. Broughton, 257 Pa.Super. 369, 390 A.2d 1282 (1978), an appeal was taken from a perjury conviction that resulted from defendant’s failure to testify truthfully before a grand jury. Defendant therein argued on appeal “that his perjury conviction ... should be reversed because of irregularities in the convening of the grand jury.” Id., 257 Pa.Superior Ct. at 389, 390 A.2d at 1292. Former President Judge, then Judge, Spaeth, writing for a three judge majority, concluded, “We do not need to consider this argument, however, for we hold that appellant is barred from challenging the legality of the grand jury at this time.” Id.

In reaching its holding, this court, in Broughton, supra, relied upon a previous similar ruling in Commonwealth v. Schindler, 170 Pa.Super. 337, 86 A.2d 151 (1952) (which also involved “a conviction of perjury based on false testimony before the grand jury”, Broughton, supra, 257 Pa.Super. at 391, 390 A.2d at 1293) and distinguished Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764, cert. denied, 404 U.S. 1000, 92 S.Ct. 560, 30 L.Ed.2d 552 (1971), as inapposite.

Consistent with this court’s rationale in Schindler, supra, and in turn in Broughton, supra, we note that appellant has not raised any challenge to our supreme court’s jurisdiction to order an investigation by a multi-county grand jury or any challenge to a multi-county grand jury’s general jurisdiction to investigate drug trafficking. In the absence of these jurisdictional defects, appellant here, as in Broughton, supra, is barred from challenging the legality or authority of the grand jury as a defense to perjury.

Accordingly, we need not be detained by a consideration of the impact of appellant’s plea upon his right to now challenge the authority of the grand jury or by a review of the merits of that substantive claim.

Finally, appellant argues that trial counsel provided ineffective assistance by allowing appellant to enter a nolo contendere plea. The bulk of appellant’s argument in this regard is devoted to the contention that, because the Commonwealth’s evidence was insufficient to convict appellant beyond a reasonable doubt, trial counsel should not have allowed appellant to enter his plea. However, appellant also contends that, “[I]f This Honorable Court concludes that the entry of the nolo contendere plea precluded Appellant from appealing the denial of his pre-trial motions, trial counsel would be additionally ineffective for allowing the Appellant to be denied appellate review of the trial court’s denial of his pre-trial motions.” Appellant’s brief at 19. Because we agree with respect to the latter claim of ineffectiveness, we need not address the former.

Mindful of the pertinent component standards for reviewing a claim of ineffectiveness, see Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985), we find that appellant should be entitled to withdraw his plea of nolo contendere. Trial counsel clearly misperceived the law of the Commonwealth in recommending a plea premised upon the faulty presumption that appellant’s nonjurisdictional pre-trial challenges could survive the entry of that plea. The acceptance of appellant’s plea by the court below did not cure the effect of this misperception. There can be no doubt as to the arguable merit of appellant’s claim and we are unable to discern any reasonable basis for counsel to have advised appellant as he did with respect to appellant’s pre-trial claims. Furthermore, a review of the plea colloquy demonstrates that appellant relied upon counsel’s representations in entering his plea, see N.T., May 15, 1984, at 5, 7, 9, to his obvious detriment. We find that trial counsel’s ineffectiveness induced an involuntary plea.

Accordingly, we vacate the judgment of sentence, reverse and remand this case for the withdrawal of appellant’s plea entered on May 15, 1984. This case should proceed in the court below consistent with this opinion.

Vacated, reversed and remanded. Jurisdiction relinquished.

      . On February 5, 1985, this court dismissed appellant’s appeal for failure to file briefs. However, appellant subsequently filed a motion to vacate the order of dismissal and to reinstate the appeal, which we granted on April 10, 1985.

      . We note that in Commonwealth v. Wagner, 221 Pa.Super. 50, 289 A.2d 210 (1972), this court addressed a speedy trial issue on appeal following the entry of a guilty plea. However, a consideration of the opinion in Wagner reveals that we simply opted, without discussion, to disregard the case’s procedural irregularity. The opinion in Wagner provides no guidance with regard to the accepted propriety of conditional pleas.

      . We note that we have considered this latter claim as, in essence, alleging that the ineffectiveness of trial counsel induced appellant to enter an involuntary plea. In that appellant, represented by new counsel on appeal, has couched his claim of involuntariness in a challenge to previous counsel's ineffectiveness, appellant's claim is properly before this court despite the absence of a motion to withdraw his plea below. See Commonwealth v. Casner, 315 Pa.Super. 12, 461 A.2d 324 (1983).


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    506 A.2d 424
    Richard J. BELL and Ruth Bell, His Wife, Appellants, v. Ernest P. SANTIAGO.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1985.
    Filed March 10, 1986.

      Raymond E. Ginn, Jr., Wellsboro, for appellants.
    Thomas J. Williams, Carlisle, for appellee.
    Before WICKERSHAM, CIRILLO and JOHNSON, JJ.
   WICKERSHAM, Judge:

This is an appeal from an order granting a motion for summary judgment entered September 28, 1984, in the Court of Common Pleas of Cumberland County.

In an opinion supporting the entry of summary judgment the court discussed the underlying facts and the issue as:

Defendant’s vehicle struck the rear of plaintiffs’ automobile at an intersection in Camp Hill, Pennsylvania, on March 21, 1980. Plaintiff Richard Bell sustained injuries to the cervical spine as a result of the accident. His symptoms continued to bother him; on April 11, 1980, he sought medical treatment in Corning, New York, where he resides. He was later advised that his injuries were serious and permanent. Plaintiff commenced this action in trespass on March 25, 1982. Defendant claims that the action is barred by Pennsylvania’s two-year statute of limitations; his motion for summary judgment is now before the court.
Plaintiff and defendant agree that New York law will determine whether or not plaintiff may sue in tort. The Pennsylvania No-Fault Motor Vehicle Insurance Act states: “The right of a victim or a survivor of a deceased victim to sue in tort shall be determined by the law of the state of domicile of such victim.” 40 Pa.C.S. § 1009.-110(c)(2). Plaintiff contends that New York’s three-year statute of limitations should be applied in this case; defendant contends that 110(c)(2) does not require the court to apply the statute of limitations of the victim’s domicile state, and that the Pennsylvania Statute of limitations applies.

This appeal timely followed. We reverse.

Appellants raise a novel issue in this appeal by asking this court to determine whether under the Pennsylvania No-fault Motor Vehicle Insurance Act, a non-resident’s suit in tort is governed by Pennsylvania’s two-year statute of limitations set forth in 42 Pa.C.S. § 5524(2); or whether the statute of limitations period is governed by the law of the non-resident’s domicile state.

Insofar as the right of a victim to sue in tort is concerned, section 110(c)(2) of the No-fault Act, states:

The right of a victim or of a survivor of a deceased victim to sue in tort shall be determined by the law of the state of domicile of such victim. If a victim is not domiciled in a state, such right to sue shall be determined by the law of the state in which the accident resulting in injury or damage to property occurs.

See Toter v. Knight, 278 Pa.Super. 547, 550-51, 420 A.2d 676, 678 (1980).

Instantly, the victim was domiciled in New York and was injured in an automobile accident in Pennsylvania. Appellants’ right to sue in tort, therefore, is governed by the law of New York.

Although appellants’ right to sue is governed by New York law, we hold that the Pennsylvania statute of limitations is applicable to the case. Section 110(c)(2) of the No-fault Act does not affect the application of this state’s statute of limitations to a given action. Rather, that provision merely specifies the right of a victim injured while in interstate travel to sue in tort as determined by the law of his domicile.

Limitation laws are generally deemed to affect the remedy only and not the substantive right, and therefore, in the absence of a statute of the forum changing the rule, and subject to certain other exceptions which are hereinafter discussed, the statutes of limitation of the place where the action is brought and the remedy is sought to be enforced, and not those of the place where the contract was made, the right in tort arose, or the plaintiff resides, or of the domicil of one or the other of the persons affected by the litigation, control in the event of a conflict of laws. In short, under this rule, the lex fori determines the time within which a cause of action shall be enforced.

51 Am.Jur.2d, Limitation of Actions, § 66 (footnotes omitted).

Having established that Pennsylvania’s statute of limitations applies, we next address appellants’ allegation of error by the court below in holding that this action is barred by virtue of the two-year limitations statute. Specifically, appellants argue that a genuine issue of material fact still exists as to when the statute of limitations began to run, and that, therefore, the summary judgment should be overturned. We agree.

Under the No-fault Act in Pennsylvania as it existed in 1982, there was no right to bring suit in tort for non-economic detriment until certain threshold requirements were met. 40 P.S. § 1009.301. For example, Pennsylvania had a $750.00 medical expense threshold. (Section 301(a)(5)(B).) New York’s “no-fault” law is intended to limit recoverable damage to those damages beyond the “no-fault” benefits, i.e., for a noncovered “serious injury” for which a suit for pain and suffering is maintainable.

The New York three-year statute of limitations begins to run on the date of the accident, notwithstanding that a victim may not have yet reached the no-fault threshold. Taber v. Niagara Frontier Transit Authority, 101 Misc.2d 92, 420 N.Y.S.2d 692 (1979), aff'd, 78 A.D.2d 775, 435 N.Y.S.2d 551 (1980). Taber holds that a plaintiff is on immediate notice, as of the date of the accident, of the infliction of harm and subsequently need only' judge its extent or seriousness ... and that a diligent plaintiff should be able to determine whether a “serious injury” occurred. In Pennsylvania, the limitations period does not start to run until the claimant knows, or in the exercise of reasonable diligence should have known, that one of the section 301(a) thresholds has been reached. Bond v. Gallen, 503 Pa. 286, 469 A.2d 556 (1983). Bond holds that a claimant has no cause of action until a statutory threshold has been met, since part or all of the statutory period could run before a right to sue existed.

We hold that the right of a victim of a motor vehicle accident to sue in tort shall be determined by the law of his domicile, (here, New York permitted such a suit), but when the tort action is brought in a Pennsylvania court, we will apply the Pennsylvania statute of limitations and the interpretation of our court as to when and under what circumstances our statute begins to run.

Instantly, appellants’ cause of action must be examined by the trial court under a Bond analysis. This was not done.

In summary, we hold that under a Pennsylvania interpretation of our statute of limitations, the non-resident plaintiff (appellants herein) had two years to file suit in Pennsylvania from the date that plaintiff knew, or in the exercise of reasonable diligence should have known, that he had sustained a “serious injury” as the New York statute defines that phrase.

There being material issues of fact in dispute, the court could not properly grant appellee’s motion for summary judgment. We therefore reverse and remand for further proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . Appellant properly raised the following preserved issues:
      1. Whether Pennsylvania’s two (2) year statute of limitations set forth at 42 PaCS § 5524 rather than New York’s three (3) year statute of limitations set forth at CPLR 203 applies to the instant case?
      2. Whether plaintiffs failed, as a matter of law, to commence the instant action within the applicable statute of limitations governing actions in tort for noneconomic detriment under the Pennsylvania No-fault Motor Vehicle Insurance Act (Act 1974, July 19th, PL 489, No. 176, 40 P.S. § 1009.101 et seq. “No-fault Act’’)?
      Brief for Appellant at 3.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq, repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . As our court stated in Toter v. Knight:

      This provision has been criticized as being "impossible of interpretation or execution.” Barrett, Pennsylvania No-Fault Motor Vehicle Insurance Act: Practice Under the Act 102 n. 51 (Pa.Bar Institute 1975). We do not find it all that obscure. The provision embodies two choice-of-law principles: 1) The right of the victim of a motor vehicle accident to sue in tort shall be determined by the law of his domicile; and 2) if the victim is not domiciled in a state, the victim’s right to sue shall be determined by the law of the state in which the accident occurred. The first principle applies to this case, for the amended complaint alleges that appellant was domiciled in New Jersey at the time of the accident. It therefore follows the appellant’s right to sue must be determined by the law of New Jersey, not Pennsylvania, and it further follows that appellant’s action [is] not barred by section 301(a).
      In holding that appellant’s action was barred, the lower court found an irreconcilable conflict between sections 110(c)(2) and 301(a). The lower court emphasized that under section 301(a) ”[t]ort liability is abolished with respect to any injury that takes place in this State,” and that the words "any injury" necessarily encompass injuries by non-residents. While we concede that section 301(a) might have been more tightly drafted, we nevertheless reject the assertion that it is in irreconcilable conflict with section 110(c)(2).
      Id., 278 Pa.Super. at 550-51, 420 A.2d at 678.

      . 40 P.S. § 1009.301 provides in pertinent part:
      § 301. Tort liability.
      (a) Partial abolition. — Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle, except that:
      ******
      (5) A person remains liable for damages for non-economic detriment if the accident results in:
      (A) death or serious and permanent injury; or
      (B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100) is in excess of seven hundred fifty dollars ($750). For purposes of this subclause, the reasonable value of hospital room and board shall be the amount determined by the Department of Health to be the average daily rate charged for a semi-private hospital room and board computed from such charges by all hospitals in the Commonwealth____

      . ‘Serious injury’ means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
      N.Y. Insurance Law § 671(4) (McKinney).


author: BECK, Judge:

text:
    506 A.2d 428
    Carl NACCARATI and Marion Naccarati, His Wife, Appellants, v. William S. GARRETT, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1985.
    Filed March 14, 1986.

      David M. Moran, Pittsburgh, for appellants.
    John W. Jordan, IV, Pittsburgh, for appellee.
    Before BECK, JOHNSON and MONTGOMERY, JJ.
   BECK, Judge:

This is an action in medical malpractice that arose out of breast augmentation surgery performed by the defendantappellee, Dr. William S. Garrett, Jr., on plaintiff-appellant, Marian Naccarati, in April of 1979. Mrs. Naccarati claims that subsequent to insertion of the breast implants she developed extreme drooping of the breasts, hardness of the breasts, and bruises due to post-operative procedures designed to reduce the hardness. The Naccaratis brought the action on two theories: negligence in that Mrs. Naccarati’s prior condition did not warrant breast augmentation surgery and lack of informed consent in that Mrs. Naccarati was not fully informed of the risks of this kind of surgery. After trial, the jury returned a verdict in favor of the defendant, Dr. Garrett. The trial judge denied plaintiffs’ motion for a new trial, and this appeal followed.

On appeal, appellants raise two issues: (1) whether the trial court erred in denying appellants’ motion to withdraw a juror on the basis that an answer given by the defendant on direct examination was hearsay and unfairly prejudiced the jury against the plaintiff; and (2) whether the trial court erred in instructing the jury on the issue of professional negligence.

Appellants’ first issue requires us to consider a portion of the trial record. On direct examination, Dr. Garrett, the defendant-appellee, had testified that he had regarded as “acceptable” the result of the cosmetic surgery he had performed on Mrs. Naccarati. He testified that he believed Mrs. Naccarati did not need a mastopexy (breast lift surgery) to correct sagging breasts. There followed this exchange:

Q. Could the implants be removed?
A. Oh, yes, this operation is completely reversible. It’s rather easy to take the implants out. It’s much easier to take them out than to put them in. You can just put a little Novocaine in the incision and reopen the incision and express the implant and take it out very easily. It’s interesting that that’s an operation that is very infrequently done. I have had one patient who asked if I would remove her implants, and maybe without being too anecdotic, it might help you to understand some background if I told you—
MR. MORAN: Your honor, excuse me. I would object to any statements about what other patients said to Dr. Garrett as hearsay.
THE COURT: Well, this isn’t hearsay in a sense that it was a question of what — that any — it was related to the case. So, I’m going to overrule your objection.
THE WITNESS: For an example, a patient who had implants put in really at the insistence of her husband, she knew that I would not have approved of that and she kept that information from me and I did the augmentation. It turned out her husband was a wife beater. It’s not related to this case, of course, but it turned out that her husband was a wife beater, and she finally went through counseling and she divorced him, and she came back and said, “Would you remove my implants? My husband did that, and I’m through with him and I want to be back like I was.” And I said, “Yes, I think that’s perfectly reasonable,” and I took her implants out. She’s the only patient who’s ever asked me to do that.

N.T. May 15, 1984, at 82-88.

After seven more questions and answers, defendant’s counsel, Mr. Heintzman, concluded his direct examination and this exchange followed:

MR. MORAN: May we approach the bench, Your Honor?
THE COURT: All right.
(Whereupon the following Side-Bar discussion is held:)
MR. MORAN: Your Honor, I have made the objection to the hearsay of Dr. Garrett. After the hearing the anecdote that he related, and specifically making some allusion to the fact that the woman who requested removal of her implants was married to a husband, a wife beater, I think that that is extremely prejudicial, and I’m going to move for the withdrawal of a juror.
MR. HEINTZMAN: Well, but he also specifically said it has nothing to do with this case.
THE COURT: I’m going to deny that.
MR. MORAN: Thank you, Your Honor.
(Whereupon the Side-Bar discussion is concluded.)

N.T. May 15, 1984, 84-86.

The issue as framed by appellant has two grounds: that the trial court erred in overruling the hearsay objection and that the court erred in not granting a mistrial based on the prejudicial nature of the answer. We hold that much of Dr. Garrett’s anecdote about the patient who asked to have implants removed was indeed hearsay. The statements that the patient’s husband was “a wife-beater,” that the patient “went through counseling,” and that she divorced her husband were clearly offered for their truth. Dr. Garrett did not say how he acquired this information, but it is unlikely that it was by personal observation. The source, therefore, was an out-of-court declaration, probably by the patient, to Dr. Garrett. Thus, the statements were hearsay. Kemp v. Qualls, 326 Pa.Super. 319, 327-28, 473 A.2d 1369, 1373 (1984).

Appellee claims that the statements are admissible under the exception, to the hearsay rule for statements made to a physician for the purpose of obtaining advice and treatment. Fed.R.Evid. 803(4) provides that the hearsay rule does not exclude “[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Language very similar to this exception has been adopted in Pennsylvania. Descriptive statements of a sick or injured person as to the patient’s condition, symptoms, and feelings are admissible if made to a medical attendant for the purpose of medical treatment and advice. Caskie v. Coca-Cola Bottling Co., 373 Pa. 614, 618, 96 A.2d 901, 903 (1953).

In the case sub judice, there is no evidence that Dr. Garrett learned of his patient’s having been abused by her husband, having had counseling, or having been divorced from the patient herself or during the course of treatment. Even if the patient was the source, such statements by no means related to the patient’s “symptoms, pain, or sensations.” Thus, no exception applies, and the statements made by Dr. Garrett at trial were inadmissible hearsay.

This court, however, will not award a new trial based on an error of law alone. We must conclude that the trial error influenced the verdict and led to an incorrect result. O’Malley v. Continental Insurance Co., 305 Pa.Super. 302, 307-09, 451 A.2d 542, 545 (1982).

Dr. Garrett pointed out that his anecdote was not related to the case sub judice. Moreover, the jury would certainly weigh the fact that this testimony was being offered by the defendant himself. Further, as the trial court suggested, it is untenable to propose that a jury would infer from this anecdote that all women who request removal of breast implants, or Mrs. Naccarati in particular, have the domestic problems or emotional characteristics of the patient in Dr. Garrett’s anecdote. We hold that the error in admitting the hearsay testimony was harmless.

Appellants’ second ground for urging a mistrial is that the anecdote was prejudicial. Based on the same considerations as for our finding of harmless error on the first ground, we cannot agree that the defendant’s answer aroused the jury’s prejudices or influenced their verdict unfairly. We conclude, therefore, that the trial court did not abuse its discretion in denying appellants’ motion to withdraw a juror. O’Malley v. Continental Insurance Co., supra, 305 Pa.Superior Ct. at 309-10, 451 A.2d at 546.

The second issue raised by appellants is based on that part of the court’s charge wherein the court defined negligence and then stated:

“Now, under the law a physician is permitted a broad range of judgment in his professional duties. A physician, however, is not excused for an error of judgment when he is negligent. He must base his professional decisions on his knowledge, his skill, and a careful study and consideration of the case, and exercise of judgment must be founded on his learning and on his experience, and on his expertise. Of course, there may be errors in judgment that are so gross as to be inconsistent with that degree of skill, and under the circumstances it would be negligence.” N.T. May 15, 1984, at 138-39.

Appellant argues that this instruction, by its use of the pronoun “his,” is contrary to the law, which is that “the medical judgment, itself, must be made with the degree of skill, knowledge and care as that normally exercised in the medical profession.”

We note, however, that jury instructions “must be viewed in toto to determine if any error has been committed.” Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984). That part of the court’s charge quoted above was preceded by a lengthy definition of professional negligence, which included this statement: “A physician must have and use the same knowledge and skill, and exercise the same care as that which is usually had and exercised in the medical profession.” N.T. May 15, 1984, at 136. This statement, virtually identical to that urged by appellants, is a correct charge on professional negligence. See Incollingo v. Ewing, 444 Pa. 263, 274, 282 A.2d 206, 213 (1971); Hodgson v. Bigelow, 335 Pa. 497, 515, 7 A.2d 338, 346-47 (1939). Accordingly, the jury instructions as read in toto were proper. We therefore hold that the trial court made no error in instructing the jury.

Judgment affirmed.


text:
    506 A.2d 431
    COMMONWEALTH of Pennsylvania, v. Richard DIGGS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1985.
    Filed March 14, 1986.

      Carl Marcus, Pittsburgh, for appellant.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   BECK, Judge:

This appeal concerns allegations of counsel ineffectiveness for failure to raise certain grounds for suppressing two self-incriminating statements which appellant made to the police. The statements were introduced against appellant at a 1977 jury trial which resulted in appellant’s conviction for robbery and second-degree murder.

Appellant did not institute a direct appeal from the judgment of sentence rendered on his convictions but subsequently filed a pro se Post Conviction Hearing Act petition which, inter alia, sought permission to file post-verdict motions nunc pro tunc. The requested PCHA relief was granted, and through appointed counsel, appellant filed post-verdict motions which were denied. Represented by new counsel in this appeal, appellant argues the ineffectiveness of his post-verdict motions counsel and the ineffectiveness of his trial counsel. We affirm.

Sometime after 1:00 p.m. on August 4, 1977, appellant was arrested by the Chicago, Illinois, police in response to an outstanding Pittsburgh, Pennsylvania, warrant for appellant’s arrest on homicide charges. Appellant was advised of his constitutional rights and was asked if he knew what happened in Pittsburgh. Appellant did not give a statement. At appellant’s request, the Chicago police then took appellant to the Chicago apartment of one of appellant’s friends. Thereafter, appellant was taken to Area 4 Homicide in Chicago where he arrived with the police at 3:00 p.m. and was against advised of his rights. This time appellant chose to waive his right to remain silent and for approximately one hour, appellant dictated a statement about the Pittsburgh homicide which had led to his arrest.

At 4:00 p.m. the Chicago police called the Pittsburgh police to inform them of appellant’s apprehension and were asked to question appellant about a second Pittsburgh murder unrelated to the warrant that triggered appellant’s arrest (hereinafter “unrelated murder”). This “unrelated murder” and the circumstances surrounding appellant’s questioning in regard to it form the basis of the present appeal.

Before appellant was asked about the “unrelated murder,” appellant was readvised of his rights. Waiving his rights, appellant spent approximately one hour giving the Chicago police his first statement implicating himself in the “unrelated murder.” When he finished his statement, appellant was transported to the Cook County Jail since it was then after 5:00 p.m. on August 4, and the record reflects that there were no provisions for extradition hearings in Chicago after 5:00 p.m. Appellant’s bail status was reviewed on the night of August 4 by a night court judge, and at 9:00 a.m. on August 5, appellant was presented to a judge for formal notice of the warrant filed for his extradition on Pennsylvania homicide charges. The record establishes that appellant’s processing comported with Illinois practice.

At 9:00 a.m. on August 6, 1977, two members of the Pittsburgh police arrived in Chicago with warrants authorizing them under the Uniform Criminal Extradition Act (“Extradition Act”) to return appellant to Pennsylvania. The Pittsburgh police officers went to the Cook County Jail where they saw appellant at 2:55 p.m. The officers arrived with appellant at Area 4 Homicide in Chicago at 3:10 p.m. At that time, appellant began to exhibit symptoms of heroin withdrawal and was reconveyed to Cook County Jail for methadone treatment. Following treatment, appellant was returned to Area 4 Homicide at 5:15 p.m. at which time appellant was again advised of his rights and again waived his rights and gave a second statement regarding the “unrelated murder.”

On Aiigust 7, appellant and the Pittsburgh police officers flew fróm Chicago to Pittsburgh. During the flight, appellant wap readvised of his rights, and he again waived them and gave the police a third statement about the '“unrelated murder ” Appellant and the police officers landed in Pittsburgh a t noqntime, and appellant was preliminarijly arraigned in Pittsburgh at 3:15 p.m. and then detained at the Public Safety ^Building.

On August 8, after appellant was readvised of ¡his constitutional rights, appellant made a fourth statement about the “unrelated murder.” This statement detailed appellant’s involvement in the murder and was tape-recorded by the Pittsburgh plolice.

Appellant’s four statements regarding the “unrelated murderj’ bec'ame the subject of a suppression hearing. At the hearing, appellant’s first statement to the tihicago police and appellant’s fourth statement taped in Pittsburgh were both ruled voluntary and admissible. Appellant’s second and third statements were suppressed as having been involuntarily offered while appellant was experiencing the effects of methadone which had been administered to him immediately before these two statements were made. Thereafter, appellant’s first and fourth statements were introduced at appellant’s jury trial and constituted the principal evidence upon which appellant was convicted.

Appellant now raises two issues concerning the alleged ineffective assistance of his post-verdict motions counsel, and concomitantly of his trial counsel, for failing properly to contest the admissibility of appellant’s first and fourth inculpatory statements about the “unrelated murder.” Appellant contends that his counsel should have argued that his first and fourth statements were suppressible because of the delay between appellant’s arrest at 1:00 p.m. on August 4 and appellant’s presentation at 9:00 a.m. on August 5 to a Chicago court of record for notice of the extradition warrant. Alternatively, appellant claims that his counsel should have maintained that his fourth statement was suppressible as the tainted product of appellant’s second and third statements which were ruled involuntary and inadmissible due to appellant’s having uttered them while on medication.

In reviewing ineffectiveness claims, we presume counsel’s stewardship to be competent and place upon defendant the burden of proving otherwise. Commonwealth v. Dunbar, 503 Pa. 590, 470 A.2d 74 (1983); Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984). To establish ineffectiveness, the defendant must show that the issue underlying his ineffectiveness claim is of arguable merit, that his counsel’s actions were not reasonably designed to promote the defendant’s best interest, and that he was so prejudiced by his counsel’s error as to have been denied a fair trial. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985). We begin by analyzing whether the issues upon which appellant premises his ineffectiveness claims have any arguable merit and note that counsel cannot be deemed ineffective for failing to pursue meritless issues. Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978).

First, appellant contends that his counsel should have objected to the initial statement which appellant made to the Chicago police prior to appellant’s pretransfer extradition hearing before a judge. Appellant maintains that his initial statement is suppressible either because the delay between his arrest at 1:00 p.m. on August 4 and his pretransfer hearing at 9:00 a.m. on August 5 violated the Extradition Act’s requirement that an accused be taken with “all practicable speed” before a judge, see 42 Pa.C.S.A. § 9135; Ill. Ann.Stat. ch. 60, § 31 (Smith-Hurd), or alternatively, because he could not have made an intelligent waiver of his right to remain silent before being informed at a pretransfer hearing of the charges against him.

In deciding whether appellant’s hearing before a judge within twenty hours of his arrest constituted presentation to a judge with “all practicable speed,” we consider both the rationale for the Extradition Act’s pretransfer hearing provision and the facts of the individual case.

Under the Extradition Act, a prompt pretransfer hearing serves two primary purposes: notice to the accused of the offenses charged against him and an opportunity for the accused to challenge his extradition by a writ of habeas corpus. Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981); Commonwealth ex rel. Huey v. Dye, 373 Pa. 508, 96 A.2d 129 (1953); Commonwealth v. Jacobs, 319 Pa.Super. 531, 466 A.2d 671 (1983). A prompt pretransfer hearing ensures that the accused will be timely advised of and afforded his rights under the Extradition Act including the right expeditiously to test the legality of his arrest. See Dye; Jacobs; 42 Pa.C.S.A. § 9131; Ill.Ann.Stat. ch. 60, ¶ 27 (Smith-Hurd supp.). At the hearing, the accused must be informed of the grounds for his arrest, the crimes charged against him, the demanding state’s request for his extradition, his right to legal counsel, and his right to contest extradition through a writ of habeas corpus. Cuyler; Dye; Jacobs; 42 Pa.C.S.A. §§ 9131; Ill.Ann.Stat. ch. 60, ¶ 27 (Smith-Hurd supp.).

The accused’s presentation with all practicable speed to a neutral judicial authority helps safeguard the reliability of evidence obtained from the accused by deterring or curtailing abusive, coercive, or otherwise unlawful police activity such as prolonged custodial interrogation. Cf. Commonwealth v. Jenkins, 500 Pa. 144, 454 A.2d 1004 (1982) (case involving Pennsylvania intrastate preliminary arraignment rule, Pa.R.Crim.P. 140); Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) (case explaining underpinnings of Pennsylvania intrastate preliminary arraignment rule, Pa.R.Crim.P. 140). Therefore, due to its potential unreliability, evidence is suppressible if it was acquired as the result of, or by exploitation of, an unjustified delay between an accused’s arrest and an accused’s hearing before a judge. Cf. Davenport (incriminating statements are suppressible if obtained as a result of unnecessary delay of defendant’s preliminary arraignment under Pennsylvania intrastate rule). The sanction of suppression encourages compliance with the prompt hearing provision of the Extradition Act.

In the case sub judice, appellant was arrested at 1:00 p.m. on August 4 and given a pretransfer extradition hearing at 9:00 a.m. on August 5. The record shows that the time between appellant’s arrest at 1:00 p.m. on August 4 and appellant’s transportation to the Cook County Jail after 5:00 p.m. on August 4 was occupied by appellant’s requested stop at a friend’s apartment, appellant’s two lengthy confessions, and the Chicago police’s cursory investigation to identify appellant as a fugitive sought in Pittsburgh. Furthermore, the record establishes that appellant’s imprisonment after 5:00 p.m. on August 4 until 9:00 a.m. on August 5 was occasioned by the unavailability of a judge to conduct appellant’s pretransfer extradition hearing.

In the context of this case, we conclude that appellant’s initial statement about the “unrelated murder” is not suppressible as the fruit of any police action causing an unjustifiable delay of appellant’s pretransfer hearing. See Davenport. The record lacks evidence of any dilatory tactics by the police between the time of appellant’s arrest and 5:00 p.m. on August 4. The unavailability of a hearing judge after 5:00 p.m. was beyond the control of the police so any delay resulting therefrom should not be attributed to the police. See Commonwealth v. Ryles, 274 Pa.Super. 547, 418 A.2d 542 (1980), reargument denied, April 14, 1980, cited in Jenkins (unavailability of a judge is an exigent circumstance excusing delay of Pennsylvania intrastate preliminary arraignment). Under the totality of the circumstances in this case, we hold that appellant was afforded a pretransfer extradition hearing with all practicable speed on the morning of August 5.

Next, appellant argues that his first statement about the “unrelated murder” is inadmissible because it preceded the pretransfer extradition hearing at which he was formally apprised of the charges against him. Appellant contends that he could not make an intelligent waiver of his right to remain silent prior to his hearing before a judge. This issue has already been settled in intrastate cases involving Pennsylvania’s prompt preliminary arraignment rule, Pa.R. Crim.P. 140, and we find the analysis in those cases equally germane to interstate cases involving prompt pretransfer hearings under the Extradition Act.

Expeditious hearings are mandated under both Rule 140 and the Extradition Act in order to avoid unreliable evidence in the form of confessions caused by prolonged or otherwise coercive custodial questioning and to ensure that the accused receives notice of his legal rights and an opportunity to exercise same. See, e.g., Jenkins (preliminary arraignment case under Pa.R.Crim.P. 140). Accordingly, where an accused is not given a prompt hearing under the particular facts of a case, a court will suppress any inculpatory statements made by the accused during the unexcused delay before his hearing. See discussion of appellant’s first contention, supra; Jenkins; Ryles.

However, the prompt hearing rules were not intended to “cut off freely volunteered confessions of guilt [or] ... impede legitimate law enforcement efforts. The primary purpose ... was to discourage the obtaining of incriminatory information through coercive means.” Jenkins, 500 Pa. at 150, 454 A.2d at 1007. Therefore, we hold that confessions such as appellant’s first statement about the “unrelated murder,” which are made within the period before a promptly convened judicial hearing are admissible into evidence as long as they satisfy the other, applicable standards for introduction such as Miranda warnings, voluntariness, and relevancy to the case being tried. See Jenkins; Davenport; Commonwealth v. O’Bryant, 320 Pa.Super. 231, 467 A.2d 14 (1983); Ryles.

In view of our conclusion that appellant’s first statement was not suppressible as the product of an illegal pre-hearing delay, appellant cannot succeed in claiming that his fourth statement should be suppressed as the tainted by-product of his first statement. A fruit of the poisonous tree argument requires an antecedent illegality. See Commonwealth v. Allessie, 267 Pa.Super. 334, 406 A.2d 1068 (1979) (confession resulted from unnecessary delay of preliminary arraignment under Pa.R.Crim.P. 140). Since appellant’s first statement was not unlawfully obtained, appellant’s fourth statement was not acquired by exploitation of an illegality traceable to appellant’s first statement.

As an alternative rationale for suppressing his fourth statement, appellant asserts that his fourth statement was unduly affected by his second and third confessions which were ruled involuntary and inadmissible. An otherwise valid confession is not automatically inadmissible because it follows an earlier illegal confession. Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983). If the later confession was not acquired by exploitation of the prior illegality but was obtained by sufficiently distinguishable means, the later confession is purged of the taint stemming from the earlier illegality and is admissible into evidence. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); Chacko.

In this case, appellant’s fourth statement about the “unrelated murder” was preceded not only by two invalid confessions but also by a pretransfer extradition hearing in Chicago, a preliminary arraignment in Pittsburgh, and one valid confession, i.e., appellant’s first statement to the Chicago police. On August 4, appellant made a valid initial confession. The following day, appellant was given a pretransfer hearing before a Chicago judge. On the afternoon of August 6 and the morning of August 7, appellant made two additional incriminating statements, both ruled involuntary due to appellant’s having been medicated at the time. On the afternoon of August 7, appellant was taken before a Pittsburgh magistrate for a preliminary arraignment. The next day, appellant was again apprised of his constitutional rights and again chose to waive them by giving a fourth statement which the police taped.

The evidence of record does not suggest that the police attempted to obtain appellant’s fourth confession by exploiting appellant’s invalid second and third confessions or that appellant’s invalid confessions exerted a psychological pressure upon appellant to offer a fourth confession. See Chacko.

To the contrary, the occurrence of the Pittsburgh preliminary arraignment between the time of appellant’s invalid confessions and appellant’s fourth confession, coupled with the time which lapsed between appellant’s invalid confessions and appellant’s fourth confession and the reiteration of Miranda warnings before appellant gave his fourth statement evidence that appellant’s fourth confession was an act of free will. See Chacko. Considering all of the circumstances in this case, we conclude that appellant’s fourth confession was properly admitted into evidence because it was purged of any taint derived from appellant’s invalid second and third confessions.

Inasmuch as none of the issues underlying appellant’s ineffective counsel claims possess arguable merit, we hold that appellant’s attorneys were not ineffective. See Wilson; Pierce.

Affirmed.

      . The Post Conviction Hearing Act appears at 42 Pa.C.S.A. §§ 9541-9551 and will hereinafter be abbreviated as PCHA.

      . See 42 Pa.C.S.A. §§ 9121-9148, for Pennsylvania’s codification of the Extradition Act; Ill.Ann.Stat. ch. 60, ¶¶ 18-49 (Smith-Hurd), for Illinois’ codification of the Extradition Act.

      . The police did not attempt to question appellant while appellant was incarcerated in the Cook County Jail on the evening of August 4 and the early morning hours of August 5 before appellant’s judicial hearing. Thus, there is no evidence in this case of constant or unduly prolonged custodial interrogation which resulted in confessions.

      . Our holding recognizes that the courts of Pennsylvania lack jurisdiction over the judiciary of a sister state where a fugitive may seek asylum. See Commonwealth v. Ryles, 274 Pa.Super. 547, 551 n. 3, 418 A.2d 542, 544 n. 3 (1980), reargument denied, April 14, 1980.


author: HESTER, Judge:

text:
    506 A.2d 438
    Armando BUCCI and Assunta Bucci, h/w v. Bernadette M. BUCCI, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed March 14, 1986.

      George P. Wood, King of Prussia, for appellant.
    Maurinc J. Rossanese, Jr., Conshohoeken, for appellees.
    Before BROSKY, McEWEN and HESTER, JJ.
   HESTER, Judge:

Appellees, Armando and Assunta Bucci, filed a petition for visitation of their grandaughter, Nicole, in February, 1984. Following protracted proceedings, appellees were awarded visitation for two hours on the first Sundays in February, May, September and December. Appellant, Bernadette M. Bucci (now Szekeres), the natural mother of Nicole, filed this appeal from the visitation order. Following a review of the record, we hold that there was sufficient evidence that grandparent visitation was in the best interest of Nicole. Accordingly, we affirm.

Appellant and Franco Bucci, appellees’ son, were married at the respective ages of seventeen and eighteen on September 22, 1979. Appellant gave birth to Nicole on December 19, 1979. Franco is not a party to these proceedings; he is serving a seven-year term of imprisonment for an arson conviction.

From the date of their marriage until March, 1980, appellant and Franco resided with appellees in Abington Township, Montgomery County, Pennsylvania. In January, 1980, appellant and Franco began to experience severe marital difficulties; they argued vehemently and Franco struck appellant on occasion causing her to file assault charges against him.

In March, 1980, Franco moved from appellees’ house, and appellees suggested that appellant and Nicole return to her parents’ house two blocks away. Appellant moved, but she and Nicole regularly visited appellees for the next month.

After April 6, 1980, appellees did not see Nicole until June, 1984, when the trial court ordered visitation while these proceedings were pending. Appellees visited Nicole on two subsequent court-ordered occasions before the order at issue was entered.

Whether the matter concerns custody or visitation, the primary issue is the best interest and permanent welfare of the child. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981). It is in the child’s best interest to preserve and nurture those relationships which are meaningful, while avoiding situations which might prove harmful. Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983).

The Custody and Grandparents Visitation Act, 23 P.S. § 1001 et seq., provides for grandparent visitation under several circumstances. In cases such as this where the parents’ marriage has been dissolved,

the court may, upon the request of the parent or grandparent of a party, grant reasonable visitation rights to the unmarried child, after dissolution of marriage, if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application.

Id., at § 1013.

Appellees had the burden of overcoming appellant’s right to continuous custody. This burden is less than that in custody cases. For example, appellees did not have to prove that it was in Nicole’s best interest for them to take custody of her. It was their burden to show only that it was in her best interest to give them some time with her. Commonwealth ex rel. Miller v. Miller, 329 Pa.Super. 248, 478 A.2d 451 (1984); Commonwealth ex rel. Williams v. Miller, 254 Pa.Super. 227, 385 A.2d 992 (1978).

In reviewing visitation orders, appellate courts are not bound by the trial court’s deductions, inferences and interpretations of evidence. We have the independent judgment to consider the merits and to provide an order that is both correct and just. Suroviec v. Mitchell, 347 Pa.Super. 399, 500 A.2d 894 (1985). Despite having this broad scope of appellate review, we are mindful that matters of credibility are solely for the trial court’s judgment; only the trial judge can observe demeanor and assess trustworthiness. Id., Commonwealth ex rel. Miller, supra.

The first issue is whether the trial court failed to give proper weight to the “resentment, bitterness, hatred and dislike among the parties.” Appellant points to the history of her tumultuous relationship with Franco and to the unpleasant court-ordered visitations. Much of appellant’s presentation of the history conflicts with the trial judge’s findings of fact. Those findings were largely the result of a credibility assessment, and upon our independent review of the merits, we hold that those findings are supported by the record.

From the time of their marriage in September, 1979, until January, 1980, appellant and Franco Bucci were reasonably compatible, and appellees’ household operated harmoniously. During this period, appellant attended high school and worked as a part-time dental assistant with appellees’ daughter. Franco and appellees also worked. Appellees and their daughter performed most of the domestic chores of washing clothing, cooking and cleaning the house so that appellant could advance her education, work and prepare for birth.

From September, 1979, until appellant left appellees’ residence in March, 1980, appellees purchased infant clothing, a crib, bassinet, and infant bathtub; they provided a christening reception and routinely babysat, changed diapers and fed Nicole. These efforts reflected responsibility and a loving attitude toward Nicole.

Appellant emphasizes her tempestuous relationship with Franco which began in January, 1980. They frequently engaged in violent arguments and Franco occasionally struck her. Appellant complains that appellees witnessed many of these arguments, and despite her pleas, they refused to counsel and temper their son. She also complains that appellees did not suggest that she leave in March, 1980; instead, they demanded that she leave because Franco had moved.

There was sufficient evidence that appellees rebuked both appellant and Franco for their arguments and advised them to resolve their differences. The trial court was apparently hesitant to hold appellees accountable for correcting their son’s behavior; he was emancipated, married, a father and apparently uncontrollable. Appellees’ decision not to take sides is not evidence of animosity directed to appellant.

Also, there was sufficient evidence that appellees recommended, not demanded, that appellant leave in March, 1980. Although Franco had moved, it was not prudent for appellant to remain in appellees’ house. Appellant and Franco had been feuding severely for three months, and appellant’s presence in appellees’ house might provoke Franco to return to vent his anger. Franco was appellees’ son, and there was no evidence that he was barred from the house; presumably, he could return upon impulse. Appellant could avoid chance meetings with Franco and live more safely in her parents’ house. Suggesting that appellant leave was a responsible and compassionate act; it was not a harsh act as appellant suggests.

As further support for her contention that there was unyielding animosity caused by appellees, appellant emphasizes that appellees did not visit Nicole or acknowledge her birthdays and holidays from April, 1980, until June, 1984. She also alleges that court-ordered visitation in June, August and November, 1984, resulted in quarrels and bitter accusations.

Appellees testified that they continued to see appellant and Nicole nearly every day for one month after they left in March, 1980. These visits were amicable until April 6, 1980, Easter Sunday. Appellant and Nicole were dinner guests that day when Franco barged in and expressed his distaste for appellant’s presence in his parents’ house. A verbal and physical fight ensued that culminated in Franco pulling appellant’s hair. Appellees called the police to settle the altercation. Appellant would not return to appellees’ house because she blamed them for not aiding her when Franco pulled her hair.

Appellees’ decision to call the police was reasonable considering Franco’s violent behavior. The police arrived, separated Franco from the others and spoke at length with him until he composed himself. Appellees acted effectively; they terminated the altercation and saved appellant from incurring serious injury. To blame them for not taking her side ignores the effective solution which they selected. Certainly, their actions did not contribute to the animosity that developed.

It is true that appellees did not attempt to visit, call or write appellant or Nicole from April, 1980, until November, 1980. They feared that Franco would complain again should he discover that they were visiting appellant and Nicole.

By April, 1980, Franco had become insufferable, and his relationship with appellant was tenuous. From February, 1980, to June, 1980, appellant had instituted three separate criminal actions against Franco. In February, Franco pled guilty to assault and battery. He also pled guilty in May to flattening the tires of appellant’s parents’ automobile and the tires of a police vehicle summoned to the scene. Finally, he was found guilty in June, 1980, of throwing a bottle through a window, narrowly missing appellant and Nicole. Franco was incarcerated three months for this third offense. As the altercations between Franco and appellant were extremely severe, appellees had good cause for not contacting appellant and Nicole for fear of upsetting a fragile respite.

In November, 1980, appellees were told that appellant had moved. Whether she actually moved at that time was disputed; nevertheless, it was undisputed that appellant, Nicole and her parents moved no later than June, 1981, to an address unknown to appellees until they retained counsel in January, 1984. For approximately three years, appellees attempted to send gifts and to discover appellant’s whereabouts, but they were unsuccessful. We acknowledge that appellees’ efforts were not extreme; however, it cannot be inferred that this four-year hiatus was the result of their animosity toward appellant or abandonment of Nicole.

As additional evidence of the animosity allegedly caused by appellees, appellant directs us to the three court-ordered visits by appellees with Nicole. The first visit occurred on June 24, 1984, when appellees were permitted to visit Nicole for two hours at the house of appellant’s parents. According to appellant, Nicole clung to her and cried, and appellee Assunta Bucci called appellant a liar for accusing Franco of throwing the bottle through a window.

During the second visit on August 26, 1984, Assunta Bucci allegedly renewed her attack on appellant’s integrity and accused her of corrupting Franco. Finally, appellant complains that on November 11, 1984, Nicole refused to see appellees and appellees departed after waiting for Nicole for just four minutes.

Once again, we defer to the judgment of the trial court that appellant was solely accountable for the strife during these visits. Certainly, at the very least, appellant did not recognize the rights of grandparents generally and did not counsel Nicole concerning appellees’ identity and the paternal relationship she had with them.

We are not surprised by the unpleasant atmosphere during the three court-ordered visits in 1984. First, appellees had not seen Nicole for four years. Nicole was six months old when she last saw appellees, and it would be natural for her to forget appellees and appear disinterested during the 1984 visits. This is particularly so since appellant was not encouraging Nicole to remember her paternal grandparents. There was sufficient evidence from the visits themselves to support the trial court’s finding that appellánt, her parents and new husband caused much of the friction. During the June, 1984 visit, appellees testified that the child they visited was not Nicole. They remembered Nicole as having dark hair whereas the child presented to them had blond hair. Also, appellees were forbidden by appellant’s father to bring gifts, and they were instructed to sit in designated chairs.

During the second visit, appellant instructed Nicole to shoot a water pistol at appellees because they were “bad” people. Nicole did not appear for the third visit in November, 1984, because appellant’s husband refused to summon her. Moreover, there was evidence that appellees waited ten minutes for her, all the while attempting to gain the cooperation of appellant’s husband.

Considering the four-year hiatus between visits and the behavior of appellant and her family, appellees cannot be held accountable for the unpleasant visits.

Appellant cites Zaffarano v. Genaro, supra, and Wick v. Wick, 266 Pa.Super. 104, 403 A.2d 115 (1979), as two cases where the courts denied custody and visitation to grandparents because hostilities were insurmountable. Each of these cases is distinguishable from the facts sub judice. In Zaffarano, the maternal grandparents petitioned for temporary custody rights to their grandchild. The father offered to allow the grandparents to visit with his daughter in his presence; however, they declined. Unlike appellees here, the Zaffarano petitioners had the heavier burden of proving that it was in their grandchild’s best interest to have custody of her away from her father.

Furthermore, in Zaffarano, one grandparent admitted blaming the father for the death of the mother, the petitioners’ daughter, and stating that he was not a “good husband, father or provider.” The petitioners’ other daughter admitted berating the father for not spending more time with the child.

Here, we have no admissions by appellees that they accused appellant of neglect or slovenly child care. Nor did they admit engaging in violent arguments with appellant. In fact, they repeatedly testified that they respected appellant for her care of Nicole.

The Zaffarano petitioners contributed significantly to the animosity between them and their son-in-law. There was also evidence of the son-in-law’s hostility. Under those circumstances, the court denied partial custody because it was reluctant to place the child between two parties who regularly exchanged barbs.

Here, the trial court made a credibility assessment that appellant created the animosity. Since appellees do not retaliate, there is the possibility that their more temperate behavior may prevail and the animosity may wane. Certainly, while they are with Nicole, they will not disrupt the visits and subject her to a crossfire of accusations.

Wick is equally distinguishable. The primary distinction is that Wick pre-dated the Custody and Grandparent’s Visitation Act, and there was no other authority establishing the rights of grandparents to visit with a child. Moreover, the parties declined to present any testimony concerning the extent and cause of animosity.

The second issue we must address is whether the court erred in disregarding the four-year period during which appellees did not see or communicate with Nicole. The court did consider this period, and it appears that it was the crux of the proceedings. It was discussed above as we addressed appellant’s contention that the four years was evidence of appellees’ animosity. We add two important notes: appellant and Nicole have been free to visit appellees since November, 1980, and the four-year hiatus is not alone grounds that renewed visitation is against Nicole’s best interest.

The third issue is whether the trial court improperly labeled its order one of visitation when in actuality it was a partial custody order. The Custody and Grandparent’s Visitation Act allows grandparent visitation only. Appellant argues that the court violated the act by ordering partial custody as evidenced by the permission granted appellees to remove Nicole from appellant’s house.

The distinguishing factors between visitation and partial custody are the length, frequency, and place of visits and who has effective control of the child during the visits. Note, Visitation Rights of a Grandparent Over the Objection of a Parent; The Best Interest of the Child, 15 J.Fam.L. 51 (1976-1977). As discussed earlier, appellees were awarded visitation on four Sundays annually, each visit to occur for two hours. Because of the infrequency and short duration of the four annual visits, the order must be considered one for visitation.

We acknowledge that appellees had the option of removing Nicole from appellant’s house. That alone does not mandate a holding of partial custody, particularly where appellant has the option to accompany Nicole and to maintain control. Removal from appellant’s house was justified considering the unpleasant earlier visits inside the house. Less time with Nicole is hardly possible; therefore, it would strain reason to consider the order to be one of partial custody. For these reasons, we hold that the order was indeed for visitation.

Order affirmed.


author: HESTER, Judge: McEWEN, Judge,

text:
    506 A.2d 443
    COMMONWEALTH of Pennsylvania v. C.S., Appellant.
    Superior Court of Pennsylvania.
    Argued Dee. 18, 1985.
    Filed March 14, 1986.

      Richard A. Sprague, Philadelphia, for appellant.
    Kathleen A. McDonnell, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before BROSKY, McEWEN and HESTER, JJ.
   HESTER, Judge:

Appellant appeals from the trial court’s denial of his petition to expunge the record of his 1954 armed robbery conviction. We agree with the trial court that the relevent precedent of this Commonwealth requires the denial of appellant’s petition. Accordingly, we affirm.

On December 1, 1954, appellant pleaded guilty to armed robbery and was sentenced to one and one-half to five years imprisonment. In April, 1956, he was paroled after serving his minimum and remained on parole throughout the balance of his five-year sentence. He has not been involved in criminal activity since that time.

Appellant has been employed by the Society for the Prevention of Cruelty to Animals (SPCA) since 1961, rising from a kennel keeper to the position of shelter supervisor. In that position he supervises fifty employees, retains the authority to hire and fire, maintains budgetary responsibilities, and participates in the formation of SPCA policy. In 1984, appellant received a gubernatorial pardon for reasons other than innocence.

Appellant argues that the trial court’s reliance upon Commonwealth v. Homison, 253 Pa.Super. 486, 385 A.2d 443 (1978), was error because that case was decided incorrectly. In the alternative he claims that Homison is distinguishable and thus not controlling. Finally, he asserts that cases decided subsequent to Homison mandate expungement in this matter.

The law of this Commonwealth is clear. Rehabilitation and post-conviction accomplishments are not grounds for expungement of the record of a criminal conviction. Commonwealth v. Magdon, 310 Pa.Super. 84, 456 A.2d 194 (1983). Further, “[t]he grant of a pardon (for reasons other than innocence) by the Governor of our state does not entitle one who has been convicted of a crime to expunction of his criminal record.” Commonwealth v. Binder, 267 Pa.Super. 558, 559-60, 407 A.2d 50, 51 (1979), citing Commonwealth v. Homison, supra.

We do not agree with appellant that Homison is no longer controlling. It is true that Magdon suggested that the recourse for an aggrieved convict, whose record curtails employment opportunities, is to apply for relief from the Board of Pardons. It does not necessarily follow, however, that a pardon is grounds for expungement. The Magdon court may have simply intimated that a pardon alone may quell the reservations of prospective employers despite the remaining criminal record.

Moreover, Hunter v. Port Authority of Allegheny County, 277 Pa.Super. 4, 419 A.2d 631 (1980), does not undermine Homison’s authority. Hunter forbade a public employer to reject an applicant for employment on the basis of his criminal record, particularly where the offense was old and the applicant had been awarded the governor’s pardon. Hunter did not suggest that the record should be expunged, only that it should be overlooked.

Order affirmed.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

If the quality of mercy may not be strained — then why must the process of expungement? The life led by appellant for the past thirty years has been so exemplary that the membership of the Board of Pardons recommended that appellant receive earthly forgiveness. The Governor of this great Commonwealth agreed and granted appellant a pardon. It is not for the bookkeeper to thwart the clemency decreed by the Governor of Pennsylvania.

Logic, as well, compels expungement. Were appellant a young man who had been arrested for robbery but acquitted, expungement of his arrest record would be routine. The pardon he has received might even be considered a more compelling factor than an acquittal for the obvious implication of a pardon is that the individual is worthy, a conclusion that does not necessarily follow upon an acquittal.

The distinguished members of the majority, in a fine expression of view, correctly opined that the prior decisions of this Court require rejection of the petition for expungement. Our eminent colleague, Judge J. Sydney Hoffman, however, provided in his dissent in Commonwealth v. Homison, 253 Pa.Super. 486, 385 A.2d 443 (1978), a careful and compelling discourse on why, in situations such as confront us here, the record of a petition should be expunged.

I can do no better than to rely upon the logic and echo the reasons there expressed as I dissent from the decision of the majority to affirm the rejection of the petition of appellant to expunge the record of his misdeed of thirty-two years past.

      . Appellant also sought, and received, the expungement of the records of three other arrests from 1953 and 1954 which resulted in discharge without conviction. Obviously, no appeal lies from the grant of that relief.


author: TAMILIA, Judge:

text:
    506 A.2d 445
    In re KUMA K-9 SECURITY, INC. Renewal of Detective License. Appeal of COMMONWEALTH of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1986.
    Filed March 19, 1986.

      W. Wayne Punshon, Media, for appellant.
    Jeffrey M. Sherman, Media, for appellee.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   TAMILIA, Judge:

In 1976, Kuma K-9 Security Inc. (hereinafter Kuma) was granted a license to operate a private detective agency under the “Private Detective Act of 1953”, 1953, Aug. 21, P.L. 1273 § 1, 22 P.S. § 11 et seq. Two renewals were filed and the license reissued in 1978 and 1980. In 1983, the renewal application was opposed by the District Attorney of Delaware County. This opposition was based on an alleged conflict of interest and potential for abuse involving John Morris, the president and one-third stockholder of Kuma, who also held the position of lieutenant in the Upper Darby police department.

The Court of Common Pleas granted the license to Kuma and the District Attorney appealed to this Court. In a Memorandum Opinion, we reversed on public policy grounds finding that although no statutory bar exists to issuing licenses to those engaged in full-time police work, case law indicates a strong disapproval of issuing licenses to those in a position of public trust. In Re: Kuma K-9 Security, 339 Pa.Super. 624, 488 A.2d 1170 (1984).

Subsequent to this decision, John Morris resigned his position with Kuma and transferred his stock to his wife. The board of directors of Kuma (Mrs. Morris, James Fleming and Elizabeth Fleming) then elected new officers and reapplied for a detective’s license.

In accordance with the statute, Kuma submitted two certificates with its application stating that the vice president, James Fleming, had been regularly employed as a detective for at least three years.

At the hearing on the application, the district attorney continued to oppose the granting of the license. It was established that although Mr. Morris, now a captain with the Upper. Darby police department, had resigned his position with Kuma and transferred his stock, he was being retained as a consultant, performing similar duties as he previously had done at the same salary. (N.T. 3/4/85 p. 66-69) The district attorney contended that under these facts a conflict still existed. In addition, it was argued that none of the applicants met the qualifications required under 22 P.S. § 14, specifically that Mr. Fleming’s experience as a private detective did not qualify him under the statute.

The Common Pleas Court of Delaware County, by the Honorable Melvin G. Levy, granted the license to Kuma and this appeal followed.

The appellant asserts error by the lower court in ruling on the two issues raised at the hearing contending that the facts presented required denial of the license.

The first issue we will address is whether the term “regularly employed as a detective” in 22 P.S. § 14(a) requires that employment to be as a law enforcement officer.

The appellant asserts that experience as a private detective does not satisfy the statutory requirement that at least one member of the applying corporation has been “regularly employed as a detective” for not less than three years. We do not agree.

We support the finding of the lower court that the term “detective” or the phrase “regularly employed as a detective” have never been limited to persons employed by law enforcement agencies. (Opinion, Levy, J. filed June 5, 1985) In support of this position are the holdings in In Re: Harding, 246 Pa.Super. 180, 369 A.2d 871 (1977) and In Re: Sentry Security Inc., 490 Pa. 578, 417 A.2d 190 (1980) where the courts applied a functional analysis to determine the meaning of the phrase “regularly employed as a detective.” Both decisions looked to 22 P.S. § 12 for a listing of activities performed by those engaged in the “private detective business” and made evaluations based on the activities engaged in by the applicant. The employer of the applicant was not considered the key to ascertaining the applicant’s qualifications for licensing but rather the experience the applicant had obtained in performing the functions designated by statute as distinctive of a “private detective business.” We think this approach, which was followed by the lower court in the present case, is proper.

The facts indicate that Mr. Fleming has been associated with Kuma for eleven years, working an average of thirty to forty hours a week. During this time, he took part in hundreds of investigations involving nine of the eleven activities listed in 22 P.S. § 12(b). (N.T. 3/4/85 pp. 37-50) Based on this experience, under the analysis adopted by the court, it was proper to determine Mr. Fleming qualified under the statute. As to this issue, we thus affirm the holding of the lower court.

The second issue raised by appellant concerns the potential conflict of interest created by the granting of the license.

Although John Morris resigned from his position as president of Kuma and relinquished his stock holdings, he is still employed as a consultant by Kuma and continues to draw his salary. (N.T. 3/4/85 pp. 65-68) Under these circumstances we agree with appellant that the substance of the potential conflict continues to exist.

The concern of this Court is the potential for a conflict of interest or abuse of power by an individual in a position such as a police captain who also is involved in a private detective business.

“The concern is that persons holding public office and given extraordinary authority for the benefit of the public might use that authority specifically for the benefit of private persons.” Commonwealth v. Gregg, 262 Pa.Super. 364, 366, 396 A.2d 797, 798 (1979). “Where public officials are involved, even the appearance of a conflict of interest should be avoided.” Little v. Freeman, 86 Pa.Commw. 378, 484 A.2d 873, 874 (1984).

Courts have consistently held, based upon public policy, that a person may not be granted a private detective license if simultaneously he would be employed as a public official with police powers. In Re Private Detective License of Keibler, 279 Pa.Super. 276, 420 A.2d 1331 (1980); Commonwealth v. Gregg, supra; In Re Stanley, 204 Pa. Super. 29, 201 A.2d 287 (1964); Little v. Freeman, supra; Little v. Freeman, 31 Pa.D & C 3rd 479 (1983).

Under the present circumstances, with John Morris serving as a police captain while maintaining an ongoing relationship with Kuma, the concerns expressed in the cases noted are present. Mr. Morris and thus Kuma would have access to information and be in a position not enjoyed by other private detectives. The potential to use his position to the advantage of Kuma would create at least the appearance of a conflict of interest and a potential source of abuse. It is this we wish to avoid.

The fact that the business is primarily involved in providing security does not affect our finding. Upon granting of the license, the corporation would be able to perform any type of detective work it may choose. In addition, based on the testimony of Mr. Fleming, security work “almost always” ends up including investigative work. (N.T. 3/4/85, p. 49)

The concern we are addressing arises because of the high ranking police position held by Mr. Morris and the activities involved in the operation of a detective business. We specifically do not intend that this decision will preclude detective agencies from hiring off-duty policemen to serve as security guards and other such positions wherein the functions of the job do not create a potential for conflict or abuse of the individual’s police position. We find a definite contrast between the potential for conflict and abuse in the hiring of off-duty policemen to perform guard or security duty and that which exists when a high ranking police official also maintains a position as an officer, owner or employee of a detective agency.

It is our determination that the lower courts ruling as to the issuance of a license should stand. Based upon the finding that James Fleming was properly qualified under § 14(a) of the Private Detective Act, the agency has met the requirements for licensing.

We order as a condition to the retention of the license that John Morris sever all ties with Kuma and resign as a consultant to the company.

We note that under 22 P.S. § 15 the district attorneys of the various counties have the power to enforce the provisions of the act. Any violation of this order would thus be grounds to seek revocation of Kuma’s license.

The Order of the lower court is affirmed, subject to compliance with the conditions set forth in this Opinion.

      . 22 P.S. § 14(a) in pertinent part reads:
      § 14. Application for licenses
      (a) If the applicant is a person, the application shall be signed and verified by such person, and if the applicant is a partnership or association, the application shall be signed and verified by each individual composing or intending to compose such partnership or association. The application shall state the full name, age, residence, present and previous occupations, of each person or individual so signing the same, that he is a citizen of the United States, and shall also specify the name of the city, borough, township, or incorporated town, stating the street and number if the premises have a street and number, and otherwise such apt description as will reasonably indicate the location thereof, where is to be located the principal place of business, and the bureau, agency, sub-agency, office or branch office for which the license is desired, and such further facts as may be required by the court of quarter sessions, to show the good character, competency and integrity of each person or individual so signing such application. Each person or individual signing such application shall, together with such application, submit to the court of quarter sessions his photograph, in duplicate, in passport size, and also fingerprints of his two hands, recorded in such manner as may be specified by the court of quarter sessions. Before approving such application, it shall be the duty of the court of quarter sessions to compare such fingerprints with fingerprints of criminals now or hereafter filed in the records of the Pennsylvania State Police. Every such applicant shall establish, to the satisfaction of the court of quarter sessions and by at least two duly acknowledged certificates, that such applicant, if he be a person, or, in the case of a partnership, association, or corporation, at least one member of such partnership, association, or corporation, has been regularly employed as a detective, or shall have been a member of the United States government investigative service, a sheriff, a member of the Pennsylvania State Police, or a member of a city police department of a rank or grade higher than that of patrolman, for a period of not less than three years.

      . 22 P.S. § 12
      § 12. Definitions
      (a) “Private detective business" shall mean and include the business of private detective, private detective business, the business of investigator, or the business of watch, guard, or patrol agency.
      (b) "Private detective business" shall also mean and include separately or collectively, the making, for hire, reward, or for any consideration whatsoever, of any investigation or investigations for the purpose of obtaining information with reference to any of the following matters, notwithstanding the fact that other functions and services may also be performed for fee, hire, or reward.

        (1) Crime or wrongs done or threatened against the government of the United States of America or any state or territory of the United States of America.
      (2) The identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character, of any person, group of persons association, organization, society, other groups of persons, partnership, or corporation.
      (3) The credibility of witnesses or other persons.
      (4) The whereabouts of missing persons.
      (5) The location or recovery of lost.or stolen property.
      (6) The causes and origin of, or responsibility for, fires or libels, or losses, or accidents, or damage, or injuries, to real or personal property.
      (7) The affiliation, connection, or relation, of any person, partnership, or corporation, with any union, organization, society, or association, or with any official member or representative thereof.
      (8) With reference to any person or persons seeking employment in the place of any person or persons who have quit work by reason of any strike.
      (9) With reference to the conduct, honesty, efficiency, loyalty, or activities, of employees, agents contractors and subcontractors.
      (10) The securing of evidence to be used before any authorized investigating committee, board of award, board of arbitration, or in the trial of civil or criminal cases.
      (11) The furnishing, for hire or reward, of watchmen, or guards, or private patrolmen, or other persons, to protect persons or property, or to prevent the theft or the unlawful taking of goods, wares and merchandise, or to prevent the misappropriation or concealment of goods, wares or merchandise, money, bonds, stocks, choses in action, notes, or other valuable documents, papers, and articles of value, or to procure the return thereof, or the performing of the service of such guard of other person, for any of said purposes.
      The foregoing shall not be deemed to include persons engaged in the business of investigators for or adjusters for insurance companies, nor persons in the exclusive employment of common carriers subject to regulation by the Interstate Commerce Commission or the Public Utility Commission of the Commonwealth of Pennsylvania, or investigators in the employment of credit bureaus.
      (c) The terms "the business of detective agency", the "business of investigator”, the “business of watch, guard or patrol agency”, and the terms “private detective" or “investigator” shall mean and include any person, partnership, association, or corporation, engaged in the private detective business, as defined in subsections (a) and (b) of this section, with or without the assistance of any employe or employes.
      (d) The term “commissioner” shall mean the Commissioner of the Pennsylvania State Police. 1953, Aug. 21, P.L. 1273, § 2.


text:
    506 A.2d 449
    James BROWN v. Georgia EASTBURN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1985.
    Filed March 19, 1986.

      Sondra K. Slade, West Chester, for appellant.
    A. Thomas Parke, III, West Chester, for appellee.
    Before WICKERSHAM, BECK and HOFFMAN, JJ.
   BECK, Judge:

This is an appeal from an order awarding equally shared legal and physical custody of a seven year old child to his divorced parents in accordance with Section 5 of the Custody and Grandparent’s Visitation Act (“Act”), Act of November 5, 1981, P.L. 322, 23 P.S. § 1005. Appellant-mother contends that the trial court erred in its award because the evidence showed the parties were unable to demonstrate even a minimal degree of cooperation in dealing with the custody and visitation issues pertaining to their child. We find the lower court’s conclusion that a shared custody arrangement was warranted to be reasonable and well-supported by the record. See Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). We therefore affirm the trial court’s order.

Appellant maintains that the trial court’s determination contravenes the guidelines for shared custody set forth by this court in In re Wesley J.K., 299 Pa.Super. 504, 445 A.2d 1243 (1982). In Wesley we stated:

A minimal degree of cooperation between the natural parents is another important consideration to awarding shared custody____ This feature does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to isolate their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor.

Id. at 1249 (citation omitted; emphasis added).

The trial court awarded shared custody in spite of its reservations concerning the parties’ ability to meet the Wesley standard for cooperation. (Trial Court opinion at 3). After a careful examination of the record, however, we find that it more than adequately demonstrates the requisite minimal level of parental cooperation.

To begin with, it should be noted that the parties had originally agreed by stipulation to a shared custody arrangement whereby legal custody was divided equally and liberal visitation was afforded to the non-custodial parent. (Record at 86a). Appellant-mother was given physical custody for eleven months a year and appellee-father had physical custody for one month each summer. The parties’ willingness to agree to such an arrangement is evidence of their ability to cooperate. See e.g. Smith v. Smith, 307 Pa.Super. 544, 453 A.2d 1020, 1025 (1982).

Moreover, despite the litany of complaints recited by both parties in their briefs and at trial, there appears to have been a fair amount of negotiating and compromising in the implementation of the prior custody arrangment. For instance, each parent has on several occasions accepted changes in the custody and visitation schedule to accomodate the needs of his or her ex-spouse. (Record at 184a, 275a, 467a, 538a, 583a). The parties and their new spouses have also met to discuss the custody arrangement and organize the apportionment of holiday time. (Record at 299a, 467a).

In addition, the parties on two separate occasions jointly chose psychologists to aid in the resolution of their custody dispute. (Record at 315a, 375a). Each psychologist recommended an award that would equally divide the legal and physical custody of the child. (Record at 331, 381).

Consequently, although the parties’ relationship may not be amicable, we cannot say that they have shown an inability to cooperate to a minimal degree or to isolate their perenal conflicts from their role as parents. (Record at 298ji).

Accordingly, we affirm the ordpr below.