author: SPAETH, Judge:

text:
    460 A.2d 1155
    COMMONWEALTH of Pennsylvania v. David E. BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 4, 1982.
    Filed May 13, 1983.

      Daniel McGee, Public Defender, Bellefonte, for appellant.

      David Edward Grine, District Attorney, Bellefonte, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and VAN der VOORT, JJ.
   SPAETH, Judge:

This is an appeal from judgments of sentence for escape and theft. Appellant was sentenced to imprisonment for a period of from two to four years for escape and from six months to one year for theft, the sentences to be served concurrently. He was also ordered to make restitution and to pay the costs of prosecution. On appeal, appellant argues that the verdicts were contrary to the evidence and contrary to the weight of the evidence, and that the sentence he received was manifestly excessive. We affirm.

Appellant and his co-defendant, Charles 0. McKahan, escaped from the Rockview State Correctional Institution on December 15, 1980. As we shall discuss in some detail in a moment, appellant claims that he escaped to avoid being homosexually attacked by other inmates. On the day of the escape he told McKahan of his plan to leave and McKahan decided to accompany him. After leaving the prison the escapees made their way through a wooded area, and after about five hours, being tired and cold, they came upon an unoccupied cabin. They entered the cabin through the unlocked door, made a fire, and removed some of their clothes and placed them near the fire to dry. Appellant put on a green jacket that was hanging in the cabin. Appellant and McKahan took some cereal from a cupboard and some gauze bandages from a medicine cabinet to wrap their feet in. Appellant fell asleep for a short time and was awakened by McKahan telling him that someone had arrived at the cabin. The two then jumped out of a window and rolled down a hill outside the window. They proceeded about a mile, and after hearing their names called by personnel from the prison, they kept running. They were apprehended a short time later, N.T. 127-35, and were charged with escape, burglary, and theft. The jury acquitted them of burglary but convicted them of escape and theft.

-1-

Appellant admits that he escaped from the Rockview State Correctional Institution but he argues first that the evidence was insufficient to convict him of escape because the Commonwealth failed to disprove the defense of duress beyond a reasonable doubt. He claims that the defense of duress is available to him because of the threats of homosexual attack that other inmates at the prison made to him.

The defense of duress is defined as follows:

It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
18 Pa.C.S.A. § 309(a).

The Commonwealth does not argue that appellant failed to make out a claim of duress and we therefore do not express an opinion on whether, based on the evidence appellant presented, he should have been permitted to argue the defense of duress to the jury.

In reviewing the sufficiency of the evidence, we must accept as true all the evidence that supports the Commonwealth, and give the Commonwealth the benefit of all reasonable inferences from that evidence, and then determine whether, when so regarded, the evidence is sufficient to prove beyond a reasonable doubt that appellant was guilty of the crimes charges. See, e.g., Commonwealth v. Smith, 484 Pa. 71, 73-74, 398 A.2d 948, 949 (1979); Commonwealth v. Boyd, 463 Pa. 343, 347, 344 A.2d 864, 866 (1975).

Appellant testified that almost from the time of his arrival at the prison, in late July 1980, a group of inmates threatened him with homosexual rape if he failed to respond to their advances, and that his reason for escaping was that he “just couldn’t take it any more.” N.T. 152.

Appellant testified that except for one incident, described below, the threats were oral. Appellant testified, for example, to an incident that occurred in the “chow hall”:

They saw me get up. They got up. Two of them got up before I did and went to the door. The other two said, “Look, you’re going to have to think about this seriously. We [are] either going to take it or you’re going to give it. We can get to you wherever you’re at.”
They said, “You’re either going to give it to us or we’ll [sic ] going to kill you. Or you’ll die with us taking it.” N.T. 139-40.

A similar threat was made some time later outside the prison library. N.T. 140.

Appellant stated that he was not “really concerned a whole lot after the first time they talked to me because I figured, ‘They can’t get to me. I’m in C-Block and the guards would know if they tried to get me in there.’ ” N.T. 138-39. The prisoners who had made the advances were housed in the East and West Wings, which were some distance from C-Block. N.T. 138. About October 23, 1980, however, a prison official, Sergeant Kramer, notified appellant that his job assignment was to be changed and that the change would require appellant to move to the East Wing. N.T. 141. Appellant testified:

[A] sergeant named Kramer came to me and said, “David, you’re going to have to move.” I said, “I won’t move. Can’t you do anything about this?” He said he couldn’t. He said, “I’m giving you a direct order as of this time to get your bedding and move to the wing.” I said, “What's my alternative?” He said, “Well you can lock yourself in your cell and refuse to come out. And you'll get a misconduct and you’ll have to explain it to the board.” I said, “Well, I’m going to my cell. You can tell them I’m there. I’m not moving.”
I was in my cell about two hours. Sergeant Kramer came and got me and took me to see—I thought I was going to see the P.R.C. board, Program Review Committee, but he took me to Mr. Harter’s office.
At first I didn’t know what to tell Mr. Harter. He said, “What’s the problem?” I said, “I refuse to move. I have enemies over there. They’ll get me.” He said, “Maybe we’ll move you to the East Wing instead of the West Wing.” I said, “I have enemies there too.” The building’s connected and it’s hard to get into from one end to the other.
I said, “I’m not going to go over there. I only have four months to go before I get paroled. I’ve been in jail for a year and I have no problems or no write-ups.”
It was put across to me that if I didn’t go, I wouldn’t make parole because I would get a write-up.

On both cross-examination and on rebuttal appellant testified that he had been “written-up” for asking that he not be transferred. He was told later, however, that the write-up was not in his prison record. N.T. 157, 207-09. He said that Mr. Harter told him that if he would move to the East Wing or West Wing, the write-up would be torn up and not made part of his record. N.T. 208. Sergeant Kramer, testifying on rebuttal, denied having written a misconduct slip. He further denied that appellant had asked him not to move him to the East or West Wing, and he stated that appellant had not complained to him that he was experiencing sexual pressures or threats of abuse. N.T. 198-99, 201. Mr. Harter, also testifying on rebuttal, stated that appellant had never complained to him of sexual pressures or threats of abuse. N.T. 185.

Appellant moved to the East Wing. He testified that as soon as he arrived, members of the group that had been threatening him offered him favors in exchange for sex, N.T. 142-43, and that he then went back to see Mr. Harter and told him:

“Look they’ve already approached me. I’m going to get killed or I’m going to have to defend myself and hurt somebody. I don’t want to come into jail doing IV2 to 3 and end up doing life or be dead.”
N.T. 143.

When Mr. Harter responded, “Well, try it again and see if it works out,” N.T. 144, appellant began “taking lay-ins,”—reporting ill to the infirmary and receiving permission to take meals in his cell, and bathing in his cell. Id. On one occasion, about one week before appellant escaped, and while he was “laying in,” a prisoner came in and grabbed his “privates.” N.T. 145-46. (This is the incident mentioned above that was not oral.) Appellant did not, however, explain to the infirmary staff the reasons for his wanting “lay-ins,” but instead, he complained of physical problems. N.T. 156. He testified that he had told the prison chaplain of his fears, N.T. 155, but the chaplain did not testify at trial. Appellant also testified that a fellow inmate, Nathan Clark, knew of the difficulties he was having and “had stepped in a few eases and told these people ‘Look, you’ve got to leave this guy alone.’ ” N.T. 154-55. Clark himself testified, and said that he was friendly toward members of the group and had told them not to harm appellant. N.T. 167.

On cross-examination appellant was asked about the complaint procedures at Rockview:

Q. Is there a complaint procedure at Rockview whereby you could have filed a complaint against these inmates through Mr. Biviano?
A. Through Mr. Biviano? I had put in complaints prior to that to him about other matters. I don’t remember what they are at this time. But I had got no satisfaction.
Mr. Harter is the one in the Institution to see if you’re having problems and you need your housing changed. I went to him as told and I got no help.
I couldn’t very well walk up to the warden and approach him.
Q. Did you report it to any other official, such as the major of the guard, Lieutenant Parks?
A. No I didn’t.
Q. So when they refused to give you the lay-ins, it wasn’t because they were refusing on the grounds that they knew you had pressure; it’s just that you weren’t telling them what the real situation was.
A. To the medical officers, no.

As with all evidence presented at trial, when evidence of a defense is presented, the jury is free to believe it in its entirety or to disbelieve all or portions of it. Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979); Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978); Commonwealth v. Greene, 469 Pa. 399, 366 A.2d 234 (1976). In evaluating the evidence of the defense, the jury is not confined to that evidence; it may conclude that when the evidence of the defense is considered with all the other evidence, the defense has not been established and the defendant is guilty of the crime charged beyond a reasonable doubt. Commonwealth v. Fairell, 476 Pa. 128, 381 A.2d 1258 (1977). Here, we are not persuaded by appellant’s argument that the Commonwealth failed to disprove the defense of duress beyond a reasonable doubt.

We note first that the lower court instructed the jury that for duress to be a defense to the charge of escape four requirements must be met: the escapee must be confronted with a specific threat of death or serious bodily injury; there must either be no time to complain to authorities, or a history of futile complaints; there must be no evidence of force by the escapee against prison personnel or others in the escape; and the escapee must return to official detention as soon as possible after leaving the prison. N.T. 241. Appellant has not claimed error in the instruction, and we find that it comports with the requirements set forth in Commonwealth v. Clark, 287 Pa.Super. 13, 429 A.2d 695 (1981), and Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979), aff'd 498 Pa. 326, 446 A.2d 583 (1982). See also Commonwealth v. Boone, 287 Pa.Super. 1, 429 A.2d 689 (1981).

The record reveals that appellant was not prompted to escape by a specific threat of attack. His testimony suggests that the most recent incident that occurred prior to his escape occurred about a week before. The jury may have concluded that although the threats appellant had experienced were real and serious, appellant had not done all that he might have to avoid them.

Or the jury may have concluded that appellant had not experienced the threats he said he had. Appellant’s own testimony suggests that his complaints to Sergeant Kramer and Mr. Harter were vague at best. He told them that he “[had] enemies over there” ie., in the East and West Wings. After he had moved to the East Wing, he told Mr. Harter, “Look they’ve already approached me. I’m going to get killed____” The Commonwealth’s evidence, which we are bound to accept, is that appellant was not specific in stating his reason for asking that he not be moved from C-Block, and appellant, by his own testimony, admits that when he requested “lay-ins” after he was transferred to the East Wing, be gave health problems as the reason for such requests and never disclosed that he wanted to remain in his cell because he feared for his safety. Appellant also admits that he never complained to Mr. Biviano, the person at the prison with whom complaints were to be lodged, nor did he make his fears known to the warden. It is true that appellant testified that he did not complain to Mr. Biviano because his complaints on other matters had gone unresolved, but the fact remains that appellant failed to bring his fear of homosexual assault to the attention of the prison official charged with addressing prisoners’ complaints.

Finally, appellant’s actions following his escape were not consistent with his claim that he planned to turn himself in to authorities. When appellant and McKahan became aware that they were being followed by a search party, they continued to elude the authorities.

On this record we conclude that the jury could find that the Commonwealth met its burden of disproving the defense of duress beyond a reasonable doubt.

-2-

Appellant next argues that the evidence was insufficient to convict him of theft because the Commonwealth failed to establish that he intended to deprive the owners of the items he took from the cabin. Appellant admits that he exercised control over the property of another without permission. See 18 Pa.C.S.A. § 3921(a). With respect to the green jacket, however, he claims that he left the cabin wearing it only because he was surprised by the arrival of the owner of the cabin. Nevertheless, the jury was entitled to conclude that the manner in which appellant left the cabin and the fact that he was then in the course of a prison escape made it “unlikely that the owner [would] recover [the jacket],” 18 Pa.C.S.A. § 3901(2), and that the Commonwealth had established intent to deprive in connection with appellant’s taking of the jacket. The same may be said regarding the bandages and the cereal. We shall not consider appellant’s contention that these latter items were taken out of necessity, for he did not argue the defense of necessity below.

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Appellant next argues that the verdict is contrary to the weight of the evidence. In Commonwealth v. Zapata, 447 Pa. 322, 327, 290 A.2d 114, 117 (1972), the Supreme Court stated:

The grant of a new trial on the ground that the verdict is against the weight of the evidence is committed to the sound discretion of the trial court. Commonwealth v. James, 197 Pa.Superior Ct. 110, 113-14, 177 A.2d 11, 13 (1962); cf. Commonwealth v. Swanson, 432 Pa. 293, 298, 248 A.2d 12, 15 (1968). Where the evidence is conflicting, the credibility of the witnesses is solely for the jury and if its finding is supported by the record, the trial court’s denial of a motion for new trial will not be disturbed. Commonwealth v. Hayes, 205 Pa.Superior Ct. 338, 344, 209 A.2d 38, 41 (1965); cf. Commonwealth v. Rankin, 441 Pa. 401, 404, 272 A.2d 886, 887 (1971).

Here, as to the conviction for escape, there was a conflict in the testimony given by appellant and the prison officials as to whether appellant had informed them of the threats that had been made against him. The jury evidently chose to believe the testimony of the prison officials over that of appellant. The jury was entitled to do that. As to the conviction for theft, appellant admitted taking the items from the cabin.

-4-

Finally, appellant argues that the sentence he received, though within statutory limits, was manifestly excessive and that the lower court abused its discretion in imposing it. He argues that the sentencing court should have considered the threats of sexual abuse that led him to escape from the prison, and the fact that the items he took from the cabin were taken “out of dire necessity, given the harsh weather conditions on the. day of his escape.” Brief for Appellant at 19.

Under the Sentencing Code, 42 Pa.C.S.A. § 9721, the sentencing court must consider the individual background of the defendant and the circumstances of the offense, and impose such sentence as represents the minimum punishment consistent with the protection of the public, the seriousness of the offense, and the rehabilitative needs of the defendant. See, e.g., Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980). When the sentence is within statutory limits, and the court has complied with the several requirements of the Sentencing Code, such as stating its reasons for the sentence, we will not reverse absent a manifest abuse of discretion. See, e.g., Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981).

At the sentencing hearing the court reviewed a presentence investigation report. The court stated that in imposing sentence it was considering the circumstances of appellant’s background, including his education and his history of criminal activity, and “the other facts concerning you.” N.T. Sentencing 15-16. The court also referred to a drug problem appellant had and stated its view that treatment could best be provided for him in the state prison system, rather than at the county jail, as appellant had requested. N.T. Sentencing 17-18. The court stated its belief that appellant, in escaping, chose an inappropriate way of showing his concern for his own well-being. N.T. Sentencing 16. The court acknowledged the difficulty presented the penal system by appellant’s fears of attack, and it expressed concern as to “how best to help Mr. Brown so that he does not go back on the street as ... he came in off the street.” N.T. Sentencing 12. The court considered alternatives to total confinement but rejected them, concluding that the seriousness of the offenses called for total confinement. On this record of the sentencing hearing we cannot say that the court abused its discretion in sentencing appellant.

Affirmed.

      . The crime of escape is defined as follows:
      A person commits an offense if he unlawfully removes himself from official detention or fails to return following temporary leave granted for a specific purpose or limited period.
      18 Pa.C.S.A. § 5121(a).

      . In each of these cases we held .that the defense of duress was not available to the escapee, principally because the escapee had not "return[ed] to official detention as expeditiously as possible after absenting himself from the danger that initially prompted his escape.” Commonwealth v. Stanley, supra 265 Pa.Super. at 206, 401 A.2d at 1172. In Stanley we cited People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974), with approval. Commonwealth v. Stanley, supra 265 Pa.Super. at 206, 401 A.2d at 1172. In Lovercamp, the court listed five factors that must be considered in deciding whether duress has been shown—the four factors included in the lower court’s instruction, and whether the escapee had time or opportunity to resort to the courts.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    460 A.2d 1162
    COMMONWEALTH of Pennsylvania v. Dan Michael QUACKENBUSH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 27, 1983.
    Filed May 13, 1983.

      John Stewart Davidson, Hershey, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and WATKINS, JJ.
   CIRILLO, Judge:

This is an appeal from an Order of the Court of Common Pleas of Dauphin County denying appellant’s Motion to Dismiss the Information charging him with two summary motor vehicle violations and a misdemeanor charge of driving under the influence of intoxicating liquor or drugs. Dismissal is sought on the ground that appellant is being placed in double jeopardy because he had previously pled guilty before a District Justice and paid fines for traffic violations occurring in another municipality but arising out of the same episode. The Motion was denied, and we affirm that ruling.

The incident giving rise to this appeal began on- the evening of May 21, 1981, when appellant was observed by Officer Briana Vernouski of the Swatara Township Police Department driving his motorcycle in a manner she regarded as reckless, passing vehicles on the right and weaving in and out of traffic. The police officer began pursuit and the motorcycle accelerated in an attempt to flee. The officer followed the cyclist into Paxtang Borough where the cyclist crashed. Since the accident occurred in Paxtang, Officer Vernouski notified the Paxtang Police Department which dispatched Officer David Buckwash to the scene. The appellant was unconscious and had to be taken to Community General Osteopathic Hospital.

On the date of the incident, Officer Vernouski filed two summary citations in Swatara Township: overtaking a vehicle on the right and fleeing and attempting to elude a police officer.

In the interim, Officer Buckwash, who had accompanied the appellant to the hospital, obtained a consent from the appellant for a blood alcohol content test. The sample revealed a blood alcohol content of .21 percent. The police officer specifically advised the appellant he would be charged with driving a motor vehicle under the influence of liquor or drugs and various summary offenses by Paxtang Borough but he did not name the offenses, as he wanted to check with Officer Vernouski as to which charges she would be filing. Later, when the appellant was released from the hospital, Officer Buckwash, who was in uniform and in a marked Paxtang Borough police cruiser, accompanied the appellant to his place of business and discussed the charges again with him, indicating that he should expect to receive charges from Paxtang Borough in addition to those filed by Swatara Township. The officer gave the appellant one of his identification cards in case he had any questions.

The Swatara Township charges were filed on May 21, 1981, but the citations were not issued from the District Justice until May 26, 1981. The Paxtang Borough Police Department received the blood alcohol content test results on June 7, 1981 and, on the same date, filed the charge of driving under the influence of liquor or drugs as well as traveling in the wrong direction on a one-way street, driving while operating privileges are suspended, and operating a motorcycle without a classified license. The Paxtang Borough citations issued from the District Justice on June 9, 1981.

On June 10, 1981, the appellant appeared before the District Justice and pled guilty to the Swatara Township charges and paid the appropriate fines. At a second hearing before the District Justice on July 16, 1981 on the charges submitted by Paxtang Borough, the citation alleging a violation of 75 Pa.C.S.A. § 3308(b) was dismissed because it had been issued more than fifteen days after the date of the alleged offense and was barred by the applicable statute of limitations. The appellant brought a Motion to Quash the Information for the remaining Paxtang Borough charges on the ground that the prosecution was barred under Section 110 of the Pennsylvania Crimes Code. The cases were then bound over to the Court of Common Pleas of Dauphin County. Appellant’s Motion to Quash the Information was denied, and this appeal followed.

Appellant asserts on appeal that the decision in Commonwealth v. Campana and the provisions of Section 110 of the Crimes Code require that we reverse the trial court and quash the information charging him with the misdemeanor and the two summary offenses filed by Paxtang Borough. Appellant contends, more specifically, that since he previously pled guilty to the summary motor vehicle violations filed by Swatara Township and all charges arose out of the same criminal episode, the provisions of Section 110 of the Crimes Code bar prosecution for the subsequent Paxtang Borough charges.

The decision in Campana, as the Supreme Court observed in its second opinion, is consistent with Section 110 of the Crimes Code, which became effective after the first Campana decision. Commonwealth v. Campana, 455 Pa. at 626, 314 A.2d at 856 (1974). The pertinent provisions of Section 110 are as follows:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense;

As to the claim that prosecution for the misdemeanor charge of driving while under the influence of drugs or alcohol is barred under Section 110, the Pennsylvania Supreme Court recently held in Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), that Campana and Section 110 do not apply in a situation where a defendant pleads guilty to summary motor vehicle charges, pays the fines and costs assessed and attempts to invoke Section 110 to bar prosecution of a pending misdemeanor charge, arising out of the same criminal episode. The Court stated that,

The stipulated facts that (1) the charges arose from the same incident and (2) the prosecution knew of both violations at the commencement of the first proceeding satisfies only a portion of subsection (ii). We may not ignore the clause of that subsection which provides “and was in the jurisdiction of a single court....” A summary charge ... under the Motor Vehicle Code in this Commonwealth is a matter within the original jurisdiction of the district justice____ The disposition of a summary offense in a traffic matter prior to the trial of a misdemeanor or felony does not present the type of government harassment of a defendant that would offend double jeopardy concerns. Additionally, judicial economy is not served by requiring our Courts of Common Pleas to dispose of these matters which are regularly entrusted to the district justices for disposition____

500 Pa. at 290, 455 A.2d at 1197-1198.

Based on the holding in Beatty, appellant’s contention that Campana and Section 110 bar his prosecution for the misdemeanor charge of driving under the influence of drugs or alcohol is clearly without merit. The summary motor vehicle offenses filed by Swatara Township were within the original jurisdiction of the District Justice while the misdemeanor charge filed by the Paxtang Borough Police Department was within the original jurisdiction of the Court of Common Pleas. As such, Section 110 is clearly inapplicable to bar prosecution for the misdemeanor charge under double jeopardy principles.

We turn now to the summary motor vehicle charges filed by Paxtang Borough. It is clear that under the language of Section 110, the guilty pleas entered by the appellant to the motor vehicle violations of overtaking and passing another vehicle on the right, 75 Pa.C.S.A. § 3304, and fleeing or attempting to elude a police officer in pursuit, 75 Pa.C.S.A. § 3733, constituted former prosecutions. It is also clear that these charges and the summary motor vehicle charges of driving while operating privileges are suspended, 75 Pa.C.S.A. § 1543(a), and operating a motorcycle without a classified license, 75 Pa.C.S.A. § 1504(a), all arose out of the same criminal episode. It was the manner in which appellant operated his motor vehicle on the night of May 21, 1981, which gave rise to all of the traffic citations.

Furthermore, it is clear that all offenses were known to the appropriate prosecuting officer at the time appellant entered his guilty plea on June 10, 1981. In this regard, Paxtang Borough Officer Buckwash testified that he advised the appellant on the evening of the incident that he would receive a charge of driving under the influence and numerous other charges.

Additionally, charges filed under the Motor Vehicle Code in this Commonwealth are within the original jurisdiction of the District Justice, Act of July 9, 1976, P.L. 586, No. 142, § 2 as amended 42 Pa.C.S.A. § 1515(a)(1); Commonwealth v. Beatty, supra.

In light of this, it is undisputed that Section 110 of the Crimes Code applies to the summary motor vehicle charges in the instant case. Appellee contends, however, that the appellant, by pleading guilty on July 10, 1981 to the summary offenses filed by Swatara Township, knowing that additional charges were to be filed against him by Paxtang Borough, waived his right to invoke Section 110 of the Crimes Code. Appellant asserts, however, that since he had not received notification of the Paxtang Borough charges prior to the hearing on the Swatara Township violations, he did not possess the requisite knowledge to constitute a waiver of Section 110.

The courts of this Commonwealth have repeatedly stated that the purpose of Section 110 of the Crimes Code is to avoid harassment and oppression of a citizen through repeated efforts by the authorities to obtain a conviction, and to protect societal interests against piecemeal litigation, which drains judicial and professional resources. Commonwealth v. Beatty, supra 500 Pa. at 289-90, 455 A.2d at 1197; Commonwealth v. Breitegan, 276 Pa.Super. 181, 187, 419 A.2d 155, 158 (1980); Commonwealth v. Green, 232 Pa.Super. 134, 141-42, 335 A.2d 493, 497 (1975). The statute was not intended to allow an accused to gain immunity by entering separate pleas of guilty to several of the charged offenses thereby affording defendant a procedural expedient to avoid a prosecution. See Commonwealth v. Breitegan, supra; Commonwealth v. Bartley, 262 Pa.Super. 390, 396, 396 A.2d 810, 813 (1979).

Thus, in Commonwealth v. Green, 232 Pa.Super. at 142-43, 335 A.2d at 497, this Court stated that, “It is apparent that a defendant who is aware of the charges against him can 'thus waive his' statutory right to have them all brought in a single prosecution. If he himself requests separate trials and obtains a court order to that effect, or if he knowingly acquiesces in what appears to be an advantageous separation, he cannot later raise an objection claiming the statutory protection from multiple trials.” (Emphasis added).

In the case of Commonwealth v. Carelli, 291 Pa.Super. 502, 436 A.2d 228 (1981), a somewhat similar fact situation to the present case was at issue. The defendant Carelli was charged with the misdemeanor of recklessly endangering another person and traffic violations arising out of the same episode in two separate adjoining townships of Allegheny County. Each township police department filed different charges separately and at different times. The defendant appeared before the District Justice, pled guilty, and paid the fines for the traffic charges in one township. Prior to entering this guilty plea, counsel for defendant was granted a motion to postpone the trial on the charges brought by the second township. After the first hearing, the defendant Carelli moved to dismiss the misdemeanor and certain other traffic charges in the second township contending he was being placed in double jeopardy, thereby violating Section 110 of the Crimes Code. The Superior Court held the defendant knew of the charges pending in the other township, and he should have moved to have them consolidated. His grounds for dismissal of the second township charges arose from a situation of his own creation and maneuvering.

Similarly, in Commonwealth v. Breitegan, supra, the defendant was charged with certain Vehicle Code violations and was told further that more serious charges would be filed against her. She disposed of the summary violations by entering pleas of guilty and then raised Section 110 of the Crimes Code on a motion to quash the charges that were filed after her disposition of the Vehicle Code violations. While the Superior Court allowed the information to be quashed, its reasoning for so doing was that “appellant and her counsel knew that the pleas of guilty would, if Campana and Section 110 were invoked, serve to bar additional prosecution. The fact is, however, that those charges had not been filed, and appellant could not know precisely the nature of the charges to be filed.” 276 Pa.Super. at 189, 419 A.2d at 159.

In the present matter, appellant was fully aware of all charges filed against him in both townships. The Paxtang Borough police officer informed the appellant of all forthcoming charges on the night of the incident in question and the Paxtang Borough charges were filed and therefore pending prior to appellant’s disposition of the earlier charges. Appellant did not move for their consolidation into a single prosecution. Rather, he acquiesced in what appeared to be an advantageous separation of prosecutions, thereby waiving his statutory right to have the charges brought in a single prosecution. There was no harassment of the appellant. The charges were filed separately and at different times because of the involvement of two municipalities and because of the period of time required for performing the blood alcohol content test, not because of delayed or irresponsible treatment of the situation.

If the appellant were permitted to utilize Section 110 here, it would constitute the contravention of a statute intended to protect a defendant from the harassment of piecemeal litigation stemming from untimely and lackadaisical law enforcement. Such is not the situation in the present case.

Order affirmed.

      . Paxtang Borough is a separate political entity but is contiguous to Swatara Township.

      . Act of June 17, 1976, P.L. 162, No. 81, § 1; 75 Pa.C.S.A. § 3304.

      . Id.; § 3733.

      . Id.; § 3731.

      . Act of June 17, 1976, P.L. 162, No. 81, § 1; 75 Pa.C.S.A. § 3308(b).

      . Id.; § 1543(a).

      . Id.; § 1504(a).

      . Act of April 28, 1978, P.L. 202, No. 53, § 10(65), as amended by Act of October 5, 1980, P.L. 693, No. 142 § 501(a); 42 Pa.C.S.A. § 5553(b). This section provides:
      (b) Minor offenses.—Except as provided in subsection (c), proceedings for summary offenses under the following provisions of Title 75 must be commenced within 15 days after the commission of the alleged offense or the identity of the offender, whichever is later, and not thereafter:
      Chapter 31 (relating to general provisions).
      Chapter 33 (relating to rules of the road in general).
      Chapter 35 (relating to special vehicles and pedestrians).
      Subchapters A (relating to offenses in general) and C (relating to accidents and accident reports) of Chapter 37.

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 110 (1973) (hereinafter cited as Section 110 of the Crimes Code).

      . An appeal from an order denying a motion to quash on the grounds of successive prosecutions is allowable. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).

      . 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), explained, 455 Pa. 622, 314 A.2d 854 (1974), cert, denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) .

      . The Court in Beatty noted that 42 Pa.C.S.A. § 931(b) appears to recognize concurrent jurisdiction in such cases of the Court of Common Pleas and the District Justices. However, the Court afforded more weight to the division of labor in our court system and indicated that the role of the Court of Common Pleas in the disposition of motor vehicle charges is as a reviewing tribunal and not as a court of original jurisdiction. 500 Pa. at 290 n. 3, 455 A.2d at 1198 n. 3.

      . In Beatty, the Supreme Court indicated that the time of filing of charges, previously considered by our Court to be a factor in the disposition of claims under Section 110, see Commonwealth v. Eris-

        man, 247 Pa.Super. 476, 372 A.2d 925 (1977), is not a factor to be considered when reviewing such cases. The Court stated,
      We find no justification for defining the terms "former prosecution”: and “subsequent prosecution” as used in Section 110(l)(ii) in relationship with the time the particular offenses were filed. To the contrary, ..., the terms "former prosecution” and “subsequent prosecution” in the context used were obviously intended to refer to the completed prosecution and the pending prosecution.
      500 Pa. at 289, 455 A.2d at 1197. (Emphasis in original).

      . The same District Justice had jurisdiction over all of the summary vehicle charges filed against the appellant.

      . This Court stated that,
      The doctrine of double jeopardy was not intended to be applicable to situations where there is a legitimate reason for a separate disposition of multiple charges.
      291 Pa.Super. at 505, 436 A.2d at 230. (citations omitted).

      . In addition, appellee contends that should the court find that appellant did not waive Section 110, this case falls within an exception contained within Section 110 which provides that the former prosecution is not a bar to a subsequent prosecution in the event that,
      The offense of which the Defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; ____
      18 Pa.C.S.A. § 110(l)(iii)(A).
      In light of our holding herein, we do not find it necessary to address this issue.


author: JOHNSON, Judge: HESTER, Judge,

text:
    460 A.2d 1167
    COMMONWEALTH ex rel. MICHAEL R., A Minor, and Kristin Leigh R., A Minor, by Their Natural Mother, Sharon Lynn Hangey R. v. ROBERT R.R. Appeal of SHARON LYNN HANGEY R.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1982.
    Filed May 13, 1983.

      Robert J. Kerns, Lansdale, for appellant.
    William R. Cooper, Lansdale, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

The trial court ordered a continuation of the custody of the two children, Michael and Kristin, with their father. The mother has appealed.

The mother and father married each other in 1975, both having been married before. Michael was two years old at the time. Kristin was born in 1976. In 1978 the mother left and went to live with a woman friend for a while, and then moved in with the man to whom she is now married and by whom she has a daughter, Gina, born in 1981.

In 1980 the mother filed a petition seeking custody of Michael and Kristin who were still living with their father. After a hearing the court awarded custody to the father. The mother appealed to this court which reversed and remanded the case on three grounds: (1) the trial court had relied to some extent on the fact that the mother was living with another man (now stepfather), but did not analyze the effect of this nonmarital relationship on the children; (2) the trial court had interviewed the children in chambers without the presence of counsel or of a stenographer; (3) the trial court’s opinion lacked a sufficiently comprehensive analysis of the record and complete explanation for its decision.

After remand the trial court ordered a home investigation by Montgomery County Children and Youth Services, and conducted a second hearing, updating the record to reflect any changes in circumstances. Following this hearing, which was held in May 1982, the trial court again awarded custody to the father. The mother again has appealed. Reluctantly, we again vacate and remand.

The errors asserted in this second appeal are that the trial court’s decision to award the children to the father was an abuse of discretion, and that the trial court further abused its discretion in not conducting another, transcribed, interview with the children in order “to determine their preferences and to determine the treatment they have received from both parents.”

The trial judge, both at the second hearing and in his second opinion, explained that he chose not to interview the children, rather than to expose them to a risk of possible parental retaliation later on as a result of the mandated transcription of their conversation with him. At this second hearing the trial judge explained that he would neither interview the children again, nor consider what they had said to him at the time of the first hearing. The mother’s counsel responded that he was not advocating that the children be interviewed, but that “there could be a problem, because much of the testimony ... is based on what the parents know from the children as to what happens to them.” N.T. May 3, 1982 at 4. On appeal the mother argues that “refusal” to interview the children prevented the court from determining what weight should be given to the children’s preference.

The rule is that the preference of the children is a factor to be considered. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981). And, where the children are interviewed, the weight to be accorded their preference depends on their age, intelligence and maturity. Id. The question of the weight to be given the children’s preference arises if and when the children are interviewed. The children are not interviewed in order to determine the weight to be attached to their preference. In this case, the trial court did not interview the children, nor does the court appear to have considered, in reaching its decision, the preference of six-year-old Kristin, as expressed to the court-appointed home investigator, for custody with her mother. See note 5 infra.

Where the trial court interviews the children and then takes what was said into consideration in reaching its decision, it commits reversible error if that interview is not available to the appellate court—the absence of a transcript of that interview depriving the appellate court of the opportunity to conduct its own complete and thorough review of the record so that it may fulfill its duty under its broad scope of review. See Commonwealth ex rel. Scott v. Rider, 248 Pa.Super. 383, 375 A.2d 149 (1977); Commonwealth ex rel. Lee v. Lee, 248 Pa.Super. 155, 374 A.2d 1365 (1977); Commonwealth ex rel. Morales v. Morales, 222 Pa.Super. 373, 294 A.2d 782 (1972). But we are reluctant to rule that not interviewing the children is per se a reversible error.

Therefore, if the mandatory requirements—a complete record and a comprehensive opinion containing a thorough analysis of the record and the specific reasons for the trial court’s decision—are satisfied, we shall not reverse and remand this case. We have no desire to prolong the anxiety of the two children involved and the stress on the two families by reversing a decision where the lower court erred, if at all, without harm to the parties.

Before passing to the fundamental custody question in this case we shall address the mother’s argument that the “refusal” to interview the children combined with the refusal to permit hearsay statements of the children prevented her counsel from presenting his case. The mother provides us with several examples. First, she refers to an incident in February 1981, involving a possible spanking of Kristin by the sitter in whose care the father was leaving the children. The sitter was replaced as a result of the incident. We reiterate the rule that it is current, and not past, conditions on which custody is awarded. McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1976). The problem having been solved, no purpose would have been served by raising it with the children a year and a half later. Second, the mother sought to raise the question of a purported spanking of Kristin by the new sitter selected by the father. The mother, however, testified that she had declined to discuss this problem with the former husband in part because she did not want to be a “trouble maker”. N.T. at 15. We cannot sympathize with the lack of opportunity for counsel to question the children on a matter involving their sitter’s conduct, if the mother has herself not taken measures to remedy a purportedly worrying situation, e.g., by discussing it with the children’s father or even with the sitter. To seek to introduce evidence of the sitter’s conduct only through questioning the children does not seem the appropriate way of meeting her burden of proving her fitness for custody. The third matter was Kristin’s unhappiness in the soccer league. This again seems to be a matter for her to raise with the children’s father or with the soccer coach. Questioning Kristin in court about the soccer league is hardly the way for the mother to meet her burden of proving her fitness for custody.

We emphasize that the burden in a custody case is on each parent to prove that the best interests of the child will be served by the placement of the child with him or her. In re Custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982); Beichner v. Beichner, 294 Pa.Super. 36, 439 A.2d 737 (1982). In other words it is an affirmative burden, rather than the negative one of proving the opposing party’s unfitness.

The fourth matter was the amount of time the father spends with the children. This can be and was shown by testimony from the father and the father’s new wife [stepmother], The court was additionally aware through the home investigator’s report that Michael expressed anxiety about his father’s absences from home. We conclude therefore that this argument is without merit.

In custody cases the scope of our review is very broad. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981). We do not usurp the fact-finding function of the trial court, but we are not bound by the deductions or inferences made by the trial judge from the facts he has found. We need not accept a finding which has no competent evidence to support it, but are instead required to make an independent judgment based on the evidence and testimony, and make such order on the merits of the case as to do right and justice. See Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979), and cases cited therein.

So as to facilitate this broad review, we consistently emphasize that the trial court must provide us with a complete record and a comprehensive opinion containing a thorough anab/sis of the record and specific reasons for the court’s ultimate decision. In re Custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982); Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979).

In line with this responsibility we shall make our own analysis rather than rely on the arguments in the mother’s brief which tend to dwell on the father’s purported unfitness (e.g., he only married the children’s step-mother shortly before the hearing; he only sends the children to church because the court recommended some religious training; he only changed sitters in 1981 because of the mother’s complaints; there is a lack of communication between the two parents).

The mother and the stepfather live with their baby daughter in a seven-room duplex owned by the stepfather’s mother. There is a fenced-in yard, and a playground across the street. The mother works as an administrative assistant and is absent from the house between 8:00 a.m. and 5:30 p.m. Her baby is in the care of a sitter. The stepfather works in a tavern and in a grocery store which are both family businesses. His hours are varied. The children visit their mother and step-father on alternate weekends and for six weeks during the summer.

The father, step-mother and children live in the same house as before the break-up of the father and mother’s marriage. It is a townhouse in a development in a rural section of the town. It is a nine-room house with a small fenced-in back yard. There is a swimming pool and recreation area as part of the townhouse complex. The father is a sales engineer who is absent from the house from 7:30 a.m. to 5:30 p.m. daily, and occasionally overnight for business trips. The step-mother, for whom this is a second marriage, also works and is away from the home daily. She testified that she planned to quit work and take care of the children once she had sold a house she owned. She has no children of her own. At the time of the hearing, Michael was in school a full day and Kristin was in kindergarten for half a day. The father would take both children to the sitter’s house, where they were picked up and left off by the school bus. Either the father or the step-mother collected them from the sitter’s after work.

The trial court took note of such material circumstances and also of the financial circumstances of both families, as is required. See Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 (1979) (requiring record on fitness, circumstances and home environment of all parties).

The step-father participates with the children in sports activities when the children visit. The father appears to participate to a certain extent in the children’s activities, as well as orchestrating the children’s participation. The mother does not involve herself in any religious instruction, although the step-father, a Roman Catholic, claims to discuss religious, moral and ethical matters with Michael. The father takes the children to Sunday School at the United Church of Christ, following the trial court’s recommendation, at the first hearing, that there be some religious education. Both the father and the step-father testified to helping Michael with his school work.

The duty of the courts is to determine what is in the children’s best interests. The children’s physical, intellectual, emotional, moral and spiritual well-being is what we seek to secure. See Commonwealth ex rel. Holschuh v. Holland—Moritz, 448 Pa. 437, 292 A.2d 380 (1972); In re Custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982). It is in order to achieve this that we demand a complete record and a thorough analysis of it by the trial court, and that we make our own independent review of the case. report is referred to by counsel. But no caseworker from the service testified at the hearing. We have stated that it is reversible error for the trial court to use information from investigative reports where the persons who prepared the reports did not attend the hearing and were not subject to cross-examination. ■ See Jones v. Floyd, 276 Pa.Super. 76, 79-81, 419 A.2d 102, 104 (1980); Rummel v. Rummel, 263 Pa.Super. 97, 98-99, 397 A.2d 13, 14 (1979); Wood v. Tucker, 231 Pa.Super. 461, 332 A.2d 191 (1974); Commonwealth ex rel. Oncay v. Oncay, 153 Pa.Super. 569, 570, 34 A.2d 839, 839 (1943).

We are disturbed in this case by several gaps in our knowledge of the parties and circumstances involved. We have frequently repeated the need for disinterested testimony. See, e.g., Jones v. Floyd, 276 Pa.Super. 76, 419 A.2d 102 (1980). See generally, Gerald G. v. Theresa G., 284 Pa.Super. 498, 426 A.2d 157 (1981) (opinion by HOFFMAN, J. and concurring opinion by BROSKY, J.). The trial court ordered a home investigation by the local children’s welfare service. In his opinion the trial judge stated that he had taken the report of that investigation into consideration in reaching his decision. In the transcript of the hearing the

Similarly, Michael’s school report cards for two years were admitted into evidence, yet no responsible official from the school testified. This is a particularly significant lack in view of suggestions in the record that Michael is or has been at times a nervous child, N.T. May 3, 1982, at 60, 92, and in view of the statements that Michael’s school work and behavior has improved, N.T. May 3, 1982, at 83, 95-96, 136, 148.

There are allusions to Michael wetting his bed, N.T. May 3, 1982, at 18, 96, and suffering from eczema, N.T. at 16-17, 79-80, 113-14. But there is no expert testimony from the treating physicians, or from a child psychologist, with respect to the father’s testimony that such physical difficulties are unrelated to any emotional difficulties. See, e.g., N.T. May 3, 1982, at 114.

Although the father testified that Michael was doing very well in Cub Scouts, and introduced a newspaper clipping about a Cub Scout “Bake-off auction” in which he and Michael participated, no one from the Cub Scouts or from the church where Michael goes to both Sunday School and Scouts testified. Thus there is a twofold problem here: there is (1) almost no testimony from any extra-familial witness, and (2) there are reports with no in-court testimony from the person who made them. Compare Jon M. W. v. Brenda K., 279 Pa.Super. 50, 420 A.2d 738 (1980), where the trial court heard testimony of those intimately involved with the children’s daily routine, such as teachers, neighbors whose children played with the children in question, and after-school sitters.

The trial court also came to certain conclusions without explaining for this court’s benefit how he reached them— significantly that the children are in a happy, stable environment and that the mother is less reliable and more unstable than the father. We do not deny these conclusions to be accurate. We simply do not know on what they are based. This is particularly so when what extra-familial testimony we have—namely the physician’s testimony at the first hearing and the home investigator’s report—appear to favor the mother’s emotional attachment to her children. The trial court did not explain to this court why his view differs. We appreciate that face-to-face dealing with the parties gives the trial court an advantage over the appellate court. But this is precisely why we require that the trial court articulate the reasons for its conclusions. See Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1982); Gunter v. Gunter, 240 Pa.Super. 382, 397, 361 A.2d 307, 315 (1976).

We are thus obliged, for the reasons given in this opinion, reluctantly to remand this case yet again for a hearing updating the facts and containing more objective testimony, and for a more complete analysis of the reasons for the trial judge’s decision. We realize that the trial judge may well reach the same result, but we cannot affirm on the present state of the record before us. Vacated and remanded. Jurisdiction relinquished.

POPOVICH, J., concurs in the result.

HESTER, J., files a concurring and dissenting opinion.

HESTER, Judge,

concurring and dissenting:

I must dissent from the majority opinion based upon the standard of review utilized therein. The majority articulates a belief that this court should engage in a broad and comprehensive review of the record so as to reach an independent decision regarding the custody of these children. In doing so, the majority specifically exceeded the abuse of discretion standard which has traditionally been employed in the past. See Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977) (plurality opinion by Nix, J., with three Justices concurring); McCourt v. Meyers, 268 Pa.Super. 152, 407 A.2d 875 (1979); In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978); Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977). I believe this standard should not be discarded without a thorough and careful analysis of the appropriate function of this court in such cases by either our Supreme Court or an en banc panel of this court.

However, applying the abuse of discretion standard, my analysis of this case likewise compels the same conclusion as is reached by the majority. It is a fundamental precept of law that a hearing judge must base his decision on competent evidence. In re Custody of Neal, supra. By considering evidence adduced outside the hearing in the form of investigative reports, the hearing judge abused his discretion. Jones v. Floyd, 276 Pa.Super. 76, 419 A.2d 102 (1980). For this reason, I am constrained to agree that a new hearing is mandated in this case. At that time, it would be beneficial to hear some impartial witnesses, although not necessarily all of those potential witnesses enumerated by the majority, in order to provide the court with objective observations independent of close family friends or spouses.

      . Appellee father is the natural father of Kristin, and the adoptive father of Michael who was born to the mother during her first marriage and whom appellee adopted after marrying appellant mother.

      . Commonwealth ex rel. Michael R. v. Robert R., 293 Pa.Super. 18, 437 A.2d 969 (1981).

      . We appreciate the trial court’s sensitivity to the children’s welfare in not wishing to "memorialize” the children’s words. However, it has been the rule for quite some years that their testimony must be transcribed for the sake of proper appellate review. There are methods, other than a decision not to interview the children, which can combine President Judge Lowe’s strong wish to protect the children and the superior court’s insistence on transcribing the testimony of the children. See, e.g., Commonwealth ex rel. Grimes v. Grimes, 281 Pa.Super. 484, 489-492, 422 A.2d 572, 575-576 (1980); Commonwealth ex rel. Scott v. Rider, 248 Pa.Super. 383, 386-387, 375 A.2d 149, 151 (1977).

      . Commonwealth ex rel. Michael R. v. Robert R., No. 80-2831, slip op. at 1 (C.P. Montgomery County, June 3, 1982).

      . See, e.g., N.T. May 3, 1982 at 81, 102. The reports are not included in the record which was forwarded to this court. There is only a copy of them in appellant’s reproduced record.

      . There are also allusions, in the testimony at the first hearing, to Michael having a discipline problem, e.g., N.T. October 10, 1980, at 34, 83.

      . At the first hearing in October 1980 there was testimony from a physician (whose specialty is not indicated in the transcript) whom the mother had consulted a few months after the separation. Subsequently the mother and the step-father (who were not yet married to each other) and the two children visited the physician. Based on that interview and on a further consultation without the children present, the physician expressed the opinion that the mother and step-father had a stable relationship and would provide optimum security for the children. See N.T. October 10, 1980 at 4-18. In his decision after the first hearing the trial judge discounted this opinion.
      At the second hearing a nurse who is a friend of the mother’s testified. Her testimony was chiefly about the finding of marks on Kristin’s thighs and buttocks in February 1981 when Kristin came to visit her mother after being with the sitter. The children were removed from that sitter’s care that same week-end as a result of these marks. The witness also testified that she observed the children as contented when visiting their mother.

      . We note that the youth services’ investigator did not observe the children together with their mother and step-father, yet recommended that custody be placed with them. In In re Custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982), we lamented the lack of any observation by the social worker of interaction between the child in question and the person to whom the trial court awarded custody. The instant case involves a very different situation, but we emphasize that in reports for custody hearings the court-appointed investigator should observe interaction between the parties involved.


author: POPOVICH, Judge:

text:
    460 A.2d 1174
    Marvin J. LEVIN Marvin I. BARISH, Avram G. Adler, Arnold Levin, and Howard J. Creskoff, individually and as partners t/a Adler, Barish, Levin and Creskoff, Appellants. Robert C. DANIELS v. Marvin I. BARISH, Avram G. Adler, Arnold Levin, Marvin J. Levin and Howard J. Creskoff. Appeal of Robert C. DANIELS, Marvin I. Barish, Avram G. Adler, Arnold Levin and Howard J. Creskoff.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1982.
    Filed May 20, 1983.
    Petition for Allowance of Appeal Granted Nov. 16, 1983.

      Patrick W. Kittredge, Philadelphia, for appellants.
    Tom P. Monteverde and C. Burt, III, Philadelphia, for appellees.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

Litigation ensuing from the dissolution of a law firm partnership has given rise to an order, entered September 22, 1982, requiring appellants to escrow a percentage of the receipts collected by the partnership on cases in which appellee, a former partner, claims an interest. The order also requires appellants to “certify” to appellee as to any and all funds received from said cases within thirty days from issuance of the order.

Appellants contend on this appeal that the aforesaid order is in the nature of a preliminary injunction and, having been entered without a hearing or bond as required by Pa.R.C.P. 1531(a), (b), should be vacated. Because the bond requirement of Rule 1531(b) has not been satisfied, we must vacate that portion of the lower court order granting preliminary injunctive relief. However, we affirm the September 22 order insofar as it grants equitable relief in the nature of an accounting.

Before addressing the legal issues raised in this appeal, it is necessary to review the facts and circumstances giving rise to the order in controversy. On June 20, 1980, Attorney Robert C. Daniels filed a complaint in equity in the Philadelphia Court of Common Pleas claiming, inter alia, that he was wrongfully excluded from his proportionate share of the assets of his former lawfirm, Adler, Barish, Daniels, Levin and Creskoff (Firm No. 1). Mr. Daniels requested the appointment of a single judge to preside over the matter and render all the decisions in the action. By order of the President Judge, dated June 20, 1980, the action was assigned to the Honorable Edwin S. Maimed.

On November 12, 1981, Attorney Marvin J. Levin, appellee, filed a complaint in equity claiming that he was wrongfully excluded from his proportionate share of the assets of Firm No. 1 and from his share of the resulting firm, Adler, Barish, Levin and Creskoff (Firm No. 2),- which he had left some time after Mr. Daniels had departed from Firm No. 1. The complaint prayed for injunctive relief and the appointment of a receiver. The Levin action was consolidated with the Daniels action.

On February 22, 1982, Judge Maimed issued an order appointing a receiver to collect all funds accruing to or for the account of the lawfirm and its predecessor firms. On April 16, 1982, the parties to the Daniels action, with the exception of appellee, settled their dispute. Judge Maimed approved the settlement on May 25, 1982, in an order which embodied the April 16 agreement, and rescinded the earlier order appointing a receiver. The May 25 order stated: “Nothing in any of the described agreements or in this order shall in any way affect such claims or obligations as may be held or due from Marvin J. Levin and all proceedings are without prejudice to such rights as he may have.”

On August 23, 1982, appellee’s counsel wrote a letter to Judge Maimed requesting that, because no progress had been made toward settling the dispute between the former partners, a hearing be scheduled and thereafter an order entered escrowing funds on appellee’s behalf. By notice to all counsel dated August 30, 1982, Judge Maimed scheduled an all day hearing for September 13, 1982 to take place in his chambers beginning at 10:00 a.m. All parties were represented at an off-the-record conference held on September 13, 1982. On September 15, 1982, counsel for appellant Avram G. Adler wrote Judge Maimed a letter requesting that certain changes be made in the form of an order submitted by appellee’s counsel. The letter also stated that “it should in no way be interpreted as an agreement to entry of the Order, which as indicated at the meeting in your Honor’s chambers, the Defendants vigorously oppose.”

On September 22, 1982, Judge Maimed entered the order which is the subject of this appeal. The order directed appellants, other than Mr. Daniels, to escrow ten percent, and Mr. Daniels to escrow five percent, of all funds received on files or matters formerly handled by the firm and its predecessor but currently retained by the appellants. These percentages were lower than the percentage interest claimed by appellee in his complaint. The order also stated that no disbursement be made from the escrow accounts except upon agreement of the parties or by further order of court.

Appellants filed a motion in the lower court to dissolve this preliminary injunction as entered without hearing or bond, or in the alternative, to stay its enforcement pending appeal. This motion was denied. On October 6, 1982, appellants filed a notice of appeal to this Court. Appellants also filed a motion in this Court for a stay pending appeal. By a Per Curiam Order dated October 19, 1982, we granted the motion for stay on the condition that appellants post security in the amount of $300,000.00.

The September 22, 1982 order by Judge Maimed requires that appellants perform certain positive acts including the establishment of a “Marvin J. Levin Escrow Account” into which appellants are required to pay over certain monies. The court was without power to issue such an order where the party applying for it had not filed an appropriate bond. Mamula v. United Steel Workers of America, 409 Pa. 175, 178, 185 A.2d 595, 597 (1962). See also Rosenzweig v. Factor, 457 Pa. 492, 494, 327 A.2d 36, 38 (1974). Appellee argues, and the lower court agreed, that by not requesting a bond during the conferences and by submitting a form of order which contained no provision for the posting of a bond, appellants waived the bond requirement. Although this argument is appealing, we cannot ignore the requirement of Pa.R.C.P. 1531(b). The Supreme Court has declared that the equity rules which it has promulgated have the force of a statute and must be strictly complied with. Mamula, supra. Although we do not hold that a party may not expressly waive the bond requirement of Rule 1531(b), such waiver cannot be implied from the failure to request that a bond be posted. In Mamula, where a bond was not required to be posted until after an injunction had issued, the Court stated:

In a series of recent cases we have invalidated injunction decrees which were not accompanied by the proper filing of bond. Rose Uniforms v. Lovel, Pa. [408 Pa. 421], 184 A.2d 261 (1962); Surco Products, Inc. v. Kieszek, 367 Pa. 516, 80 A.2d 842 (1951). We hope that these cases emphasize both to the bench and bar the necessity of filing a bond contemporaneously with the issuance of an injunction. Hence we must vacate the order of the court below for lack of jurisdiction.

Id. 409 Pa. at 178, 185 A.2d at 597. See also, Rosenzweig v. Factor, supra; Port Authority of Allegheny County v. Division 85, 45 Pa.Cmwlth. 464, 467, 405 A.2d 1022, 1024 (1979).

Since no bond has been required or posted in this case, we must vacate the order of the court below insofar as it requires appellants to pay monies into a special escrow account. Because of our disposition of the injunction issue, we need not decide if an off the record conference qualifies as a hearing for the purposes of Rule 1531(a) when all parties were duly notified and represented by counsel, and where appellants do not contend that they were denied the opportunity to introduce evidence or present testimony.

Appellee argues that the portion of the order directing appellants to certify to appellee within thirty days certain monies received is in the nature of an accounting and, therefore, is interlocutory and non-appealable under the Pennsylvania Rules of Appellate Procedure and this Court’s decision in Sanders v. Seay, 301 Pa.Super. 342, 447 A.2d 998 (1982). It appears that in the September 15 letter of appellant Adler’s counsel to Judge Maimed, it was requested that the words “account to” be changed so that the order could not be argued to imply that payments be made. The order finally entered substituted the word “certify” for “account” in paragraphs 6 and 7. We agree that the “certify to” language of the order directs that an accounting take place. We also agree that an appeal from an order directing an accounting must normally be quashed when no petition has been filed in the lower court for permission to take such an appeal as required by Pa.R.A.P. 1311(a), (b). However, the order appealed from in this case goes beyond simply directing an accounting, granting relief in the form of a reviewable preliminary injunction. Under this circumstance, where we have been required to review the record and the briefs fully, it is in the interest of judicial economy that we rule on the propriety of that portion of the order directing an accounting.

The order provides:

6. Within thirty days from the date of this order, defendants and Robert C. Daniels will certify to Marvin J. Levin as to any and all funds received from and after March 31, 1981, on files of Firm No. 1 by them individually, by Firm No. 2, by Firm No. 3, by Firm No. 4 (Adler, Barish, Levin and Creskoff after March 30, 1981), by Morris M. Shuster (the conservator appointed by the court), and by Howard Creskoff as escrow agent.
7. Within thirty days from the date of this Order, defendants, Howard J. Creskoff as Escrow Agent, Morris M. Shuster as Conservator, Robert C. Daniels, and Firm No. 4 will certify to Marvin J. Levin as to any and all fees, overhead and return of costs which were received by any of these parties or firms after March 31, 1981, on files formerly handled by Firms Nos. 2 and 3.

The court below found that no progress had been made as to Mr. Levin’s interests since no compelling motive was present for the other principals to achieve a settlement with Mr. Levin. Lower Court Opinion at p. 3. The court characterized its order as preserving the status quo in 'a reasonable manner awaiting final adjudication. “There is no hard and fast rule applicable alike to all partnership dissolutions; rather, ‘a wide discretion is necessarily vested in a court of equity.’ ” (Citations omitted) Hankin v. Hankin, 279 Pa.Super. 179, 213, 420 A.2d 1090, 1108 (1980). Pa.R.C.P. 1530, entitled “Special Relief. Accounting,” does not require that a bond be posted. Although the lower court’s order cannot stand in its entirety because no bond was posted, we find that the portion of the lower court’s order directing an accounting was properly warranted by the circumstances of this case.

For the above stated reasons, we affirm the order of the court below insofar as it directs appellants to account to appellee for certain funds, and we vacate the order insofar as it requires appellants to deposit specific funds into a special escrow account.

      . Appellee claims that a second conference was held on September 17, 1982. However, this allegation is not corroborated by appellants or evidenced in the record.

      . Appellants have been unsuccessful in obtaining a bond in this amount because of an inability to obtain credit. Brief for Appellant at p. 11, note 6.

      . It appears that all parties agreed that the hearing should be held off-the-record. In Pubusky v. D.M.F., Inc., 428 Pa. 461, 239 A.2d 335 (1968), our Supreme Court stated:
      While the testimony at a hearing for a preliminary injunction which seeks only to preserve the status of the parties until the issue is finally determined need not always be as extensive as that at a final hearing, the litigants should not be deprived of their right to fully cross-examine all adverse witnesses, nor of the opportunity to present testimony which is relevant to the question of whether or not the injunction should issue.

        Id., 428 Pa. at 463, 239 A.2d at 337.
      We note that although a Court of Common Pleas is a court of record, our opinion today does not decide the propriety of such off-the-record proceedings.

      . Our review of the entire order in question does not circumvent the rule that interlocutory orders are appealable only if made so by statute. See Reynolds Metals Company v. Berger, 423 Pa. 360, 223 A.2d 855 (1966); Opperman v. Opperman, 297 Pa.Super. 89, 443 A.2d 313 (1982). Rather, as the order in question provides relief in the form of an injunction, it is reviewable under Pa.R.A.P. 311(a)(4). See also, 42 Pa.C.S.A. § 1722; Rosenzweig v. Factor, supra 457 Pa. at 493, 327 A.2d at 37.


author: HESTER, Judge:

text:
    460 A.2d 1178
    COMMONWEALTH of Pennsylvania v. Julius WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 13, 1982.
    Filed May 27, 1983.

      Daniel M. Preminger, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   HESTER, Judge:

This is an appeal from the denial of a Post Conviction Hearing Act (hereinafter referred to as PCHA) petition for relief. We affirm.

The salient procedural facts of this case are as follows. Appellant, Julius Williams, was arrested and charged with the shooting of Horace Wallace on January 3, 1974. After a bench trial on October 25, 1974, appellant was convicted of aggravated assault and related charges. The victim’s testimony and identification of appellant as his assailant contributed to appellant’s conviction. At trial, appellant was represented by Attorney Barry Denker.

On December 21, 1974, the victim, who was completely paralyzed as a result of the shooting, died. Appellant was thereafter charged with murder, and again he proceeded to a non-jury trial. The trial court found appellant guilty of third degree murder and sentenced him to an aggregate sentence of not less than twenty (20) nor more than forty (40) years of imprisonment. Attorney Alfred P. Fillipone (hereinafter referred to as trial counsel) represented appellant at his second trial.

Appellant was represented by another attorney on direct appeal due to the death of his trial attorney. Timothy Savage, Esquire (hereinafter referred to as appellate counsel) filed an appeal to the Supreme Court; however, appellant’s murder conviction was affirmed in a per curiam opinion.

On this appeal, appellant complains that:

(1) trial counsel rendered ineffective assistance by informing the trial court of appellant’s previous conviction for aggravated assault arising out of the same incident;
(2) trial counsel was also ineffective by failing to investigate and prepare what he considered to be the central issue in the case;
(3) by stipulating to the admission of notes of testimony of the victim from the first trial on the identical facts, counsel’s representation constituted ineffective assistance; and finally,
(4) appellate counsel’s representation was constitutionally defective for failing to raise the above issues on direct appeal.

In order to assess appellant’s claims, it is necessary to evaluate both trial and appellate counsel’s representation in light of the standard of review employed by this court since 1967. In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967), the Pennsylvania Supreme Court enunciated the test to be applied in measuring counsel’s effectiveness:

“Our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record.” (Emphasis in original)

If the claim which counsel failed to pursue had no merit, counsel will not be deemed ineffective. Commonwealth v. Taylor, 491 Pa. 205, 420 A.2d 413 (1980).

Appellant initially contends that trial counsel was ineffective for informing the trial judge of appellant’s prior conviction arising from the incident for which he was being charged with murder. He asserts that counsel’s admission of appellant’s conviction was incompetent evidence and prevented the judge as the trier of fact from maintaining his impartiality. In support of his argument, appellant relies upon Commonwealth v. Conti, 236 Pa.Super. 488, 345 A.2d 238 (1975), where we held that in certain instances evidence is so prejudicial that we cannot assume that the trier of fact will be able to disregard the evidence and arrive at an impartial adjudication, even when the trier of fact is the judge himself. Therein the judge was informed of an earlier guilty plea. We remanded for a new trial because the inadmissible evidence was so highly prejudicial that the judge could only conclude appellant was lying either at the time he pled guilty or at trial. “The intrusion into the decision-making process of inadmissible evidence that might predispose the trial judge to believe one side or the other was therefore of vital importance.” Id., 236 Pa.Super. at 502, 345 A.2d at 245.

Those facts differ sharply from the instant case. Herein, the judge was already aware of appellant’s prior trial since the testimony of the deceased victim from the first trial was read into the record. Moreover, that testimony revealed a positive identification of appellant as the perpetrator of the offense. Consequently, appellant made no attempt to deny his role in the assault. Rather, the defense proffered by appellant at the second trial was that appellant’s assault in January, 1974, was not the legal cause of the victim’s death almost a year later.

This is not a case where the trial judge received information concerning appellant’s prior record or past crimes which would lead the court to conclude that appellant had “a predilection for crime.” See Commonwealth v. Rivers, 218 Pa.Super. 184, 279 A.2d 766 (1971). The issué at trial was purely a legal one: whether causation existed between the shooting and the death so as to find appellant criminally culpable. In light of this, we can find no prejudice arising from counsel’s conduct in mentioning appellant’s custodial . status.

We are convinced that counsel’s silence in this regard would not have offered “a potential for success substantially greater than the tactics actually utilized.” Commonwealth ex rel. Washington v. Maroney, supra 427 Pa., at 605 n. 8, 235 A.2d at 353 n. 8. Moreover, an examination of the record discloses that “the trial judge decided the case on the evidence, that he zealously protected the defendant’s interests and that he was not prejudiced or influenced in his decision by the knowledge he obtained____” Commonwealth v. Berkery, 200 Pa.Super. 626, 630, 190 A.2d 572, 574 (1963).

Appellant next argues that counsel was ineffective for failing to properly prepare for trial. The specific instance which appellant employs to illustrate this allegation concerns the medical records of the victim. Two months before trial, appellant was awarded sufficient funds from the court to hire a forensic pathologist to testify on his behalf. However, trial counsel did not arrange for the defense expert to review the voluminous medical records until approximately one-half hour prior to trial. Appellant asserts that no legal justification existed for trial counsel’s failure to obtain sufficient preparation and review time for the expert witness.

This contention is completely devoid of merit. Nowhere does the record reflect that the witness was forced to testify prior to the completion of his review of the medical reports. The expert did not indicate at trial that he required additional time to study the report, and appellant did not present any testimony from this witness at the PCHA hearing to that effect. Significantly, appellant does not allege that a lengthier review by the expert would have resulted in testimony more beneficial to his defense. In fact, the defense expert offered strong and well-founded testimony which favored the defense. Since appellant has not demonstrated how the time period in which his expert reviewed the victim’s medical records prejudiced his case, we cannot find that appellant met his burden of proving this allegation of ineffectiveness of trial counsel. Commonwealth v. Moody, 295 Pa.Super. 106, 441 A.2d 371 (1982); Commonwealth v. Bowers, 245 Pa.Super. 214, 369 A.2d 370 (1976). “Bald assertions of ineffectiveness” have never been sufficient to warrant relief in this Commonwealth. Commonwealth v. Austin, 274 Pa.Super. 1, 5, 417 A.2d 1220, 1222 (1980); Commonwealth v. Roach, 479 Pa. 528, 388 A.2d 1056 (1978).

Appellant’s continued attack on trial counsel’s ineffectiveness next centers on counsel’s decision not to object to the admission of notes of testimony from the victim at the first trial. At trial, the district attorney read into the record the testimony elicited from the victim, including both direct and cross-examination. Appellant concedes that this testimony was admissible pursuant to 42 Pa.C.S.A. § 5917. This statute provides:

“Whenever any person has been examined as a witness, either for the Commonwealth or for the defense, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross-examine, if such witness afterwards dies, or is out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he becomes incompetent to testify for any legally sufficient reason properly proven, notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue. For the purpose of contradicting a witness the testimony given by him in another or in a former proceeding may be orally proved.”

Nevertheless, he contends that “the outrageously prejudicial impact of having a dead person’s full testimony inveighed against a defendant” outweighed its probative value and counsel should have so argued. Appellant suggests that this argument would have been buttressed by the ability of the Commonwealth to present other eye witnesses to the shooting.

Appellant cites no authority to support his proposition, and with good reason. It has long been axiomatic in our appellate courts that the testimony of the deceased from a prior proceeding was admissible against the defendant if the deceased had been subject to cross-examination and a record was made of the testimony. Commonwealth v. Ryhal, 274 Pa. 401, 118 A. 358 (1922); Commonwealth v. Miller, 203 Pa.Super. 511, 201 A.2d 256 (1964). See also Commonwealth v. Werner, 444 Pa. 458, 282 A.2d 258 (1971).

The challenged testimony herein comports with the requirements set forth in 42 Pa.C.S.A. § 5917. The witness was obviously unavailable at the time of trial. Appellant, represented by counsel, was provided ample opportunity at his first trial to conduct a thorough cross-examination of the victim. Finally, a complete record of the initial proceeding on the same criminal issue was compiled. Since these criteria were clearly satisfied, the testimony was unquestionably admissible. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980); Commonwealth v. Graves, 484 Pa. 29, 398 A.2d 644 (1979); Commonwealth v. Miller, supra. Nowhere in the actual language of the statute or in the case law applying that provision is any intimation that such testimony should only be admitted when other witnesses cannot be found. Consequently, such an argument to the court would have been frivolous; counsel cannot be deemed ineffective for failing to raise such a claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978).

Lastly, appellant claims that appellate counsel was ineffective for failing to raise the aforementioned issues of trial counsel’s ineffectiveness on direct appeal. As can be seen above, these contentions are specious; appellate counsel cannot be characterized as ineffective for failing to assert baseless claims. Commonwealth v. Taylor, supra. Post-conviction relief was properly denied.

Order affirmed.

      . 42 Pa.C.S.A. § 9541 et seq., formerly 19 P.S. § 1180-1 et seq.

      . See Commonwealth v. Williams, 475 Pa. 306, 380 A.2d 367 (1977).

      . At the conclusion of trial, but prior to verdict, trial counsel requested some time in which to prepare a memorandum of law. Counsel informed the judge at that point that appellant was in custody on the other offense.

      . Trial counsel wrote a letter to appellant on August 18, 1975, in which he explained that he had not visited appellant because of his own serious medical condition. Appellant relies upon this letter to support his argument of counsel's unpreparedness. However, in that same letter, trial counsel assured appellant that "the investigation and preparation of your case is presently in progress...” This letter, standing alone, cannot sustain appellant’s contention because it equally supports the argument that counsel was preparing for trial. We have never held that a limited amount of preparation time is per se ineffectiveness. "[RJather, it is what is able to be accomplished in the days available." Commonwealth v. Biancone, 260 Pa.Super. 197, 202, 393 A.2d 1221, 1224 (1978).

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, eff. June 27, 1978; reenactment of Act of May 23, 1887, P.L. 158, No. 89, § 3, 19 P.S. § 582.


author: ROWLEY, Judge:

text:
    460 A.2d 1182
    COMMONWEALTH of Pennsylvania v. Barbara MITCHELL, Appellant.
    Superior Court of Pennsylvania.
    Argued March 17, 1983.
    Filed May 27, 1983.

      William J. Winning, Media, for appellant.
    Andrew S. Kovach, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before CERCONE, President Judge, and ROWLEY and HOFFMAN, JJ.
   ROWLEY, Judge:

Appellant was convicted, after a jury trial, of burglary, theft and criminal conspiracy. Post-trial motions were filed and denied. Appellant was sentenced to a total term of not less than seven years or more than seventeen years imprisonment. This direct appeal followed.

Appellant argues that the trial court erred in allowing the Commonwealth to present testimony concerning a charge of forgery that was filed against her some five years prior to the burglary. We agree that the testimony was improper and prejudicial. Therefore, we will reverse the judgment of sentence and remand for a new trial.

The burglary occurred November 1, 1980, at the home of Robert J. Sanders. The burglary victim, Robert J. Sanders, had at one time been the general manager of Pennell Service Company (Pennell). He testified at trial that he had hired appellant in 1975 as a bookkeeper for Pennell. Appellant left the employment of Pennell in late November or December of 1975. When asked by the prosecutor why appellant left her employment at Pennell, Mr. Sanders testified, over the objection of defense counsel, that “[t]here was missing checks and shortage of ... well, there were checks signed that were not signed by me”. He further testified that appellant had been charged with forgery in connection with the incident. The prosecutor then asked:

Q. Now listen to my question, Mr. Sanders. As of November 1, 1980, were those charges ever resolved? Were they tried or just thrown out or did anything happen with those charges?
A. No.
Q. Why not?
A. I can’t answer that question.
Q. Well, did you go to a hearing for it?
A. There was no—no hearing.

The Commonwealth argues that this testimony was proper because it showed a motive for the burglary. It argues that Mr. Sanders was responsible for appellant’s loss of her job and the filing of the charge of forgery against her and that the resulting ill will was appellant’s motive for the burglary.

It is well settled that evidence of a defendant’s prior criminal acts may not be introduced as substantive evidence of his guilt at his trial on another charge. Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980). However, there are exceptions to the rule. Evidence of other crimes may be introduced to prove motive, intent, absence of mistake or accident, common scheme or plan, or identity. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981). Even if relevant, however, in order to be admissible under the motive exception, evidence of the prior crime “must give sufficient ground to believe that the crime currently being considered grew out of or was in any way caused by the prior set of facts or circumstances”. Commonwealth v. Schwartz, 445 Pa. 515, 522, 285 A.2d 154, 158 (1971).

The evidence in this case does have some relevance to a possible motive. Mr. Sanders did hire appellant and his name was on the forged checks. It is possible that appellant could have blamed him for her dismissal and subsequent arrest.

However, even if the evidence is arguably admissible under the motive exception, the court must balance the need for the evidence against its potential prejudice in order to determine its admissibility. Commonwealth v. Wright, 259 Pa.Super. 293, 393 A.2d 833 (1978). The court must balance on the one side the actual need for the evidence of other crimes in light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed by the accused, the strength or weakness of the other crimes evidence in supporting the issue, and on the other side, the.degree to which the jury will probably be prejudiced by the evidence. Id., 259 Pa.Superior at 299, 393 A.2d at 836. Applying this balancing test, we hold that the trial court abused its discretion in admitting the evidence concerning the filing of the forgery charge against appellant.

First, appellant was apprehended within minutes of the burglary, in the vicinity of the victim’s residence, and in a car with the goods stolen from the residence. There was little need to introduce evidence of a “motive” for the burglary. The disposition of the forgery charges was never explained, but there is no evidence that appellant was ever convicted of the charge. Furthermore, there is no indication in the record that Mr. Sanders was personally responsible for appellant’s dismissal or for her subsequent arrest. In fact, when asked if he had gone to the District Attorney’s Office with the information about the checks, Mr. Sanders stated that he had not, that he was only “part of a large corporation”, and that an officer of the company would have to do that. Finally, the lapse of time between the alleged prior crime and the burglary (five years) makes any connection between the two events extremely tenuous. Therefore, even if the evidence in question had some slight probative value, it was far outweighed by the prejudicial effect of that evidence.

Because of our disposition of this question, we need not discuss the second issue raised in this appeal.

Judgment of Sentence reversed and case remanded for a new trial.

Jurisdiction relinquished.

      . The Commonwealth has attempted to explain the disposition of the charges in a footnote in its brief to this court. However, that information is not part of the record and is not properly before us.