text:
    512 A.2d 689
    In re Adoption of BABY BOY J. a/k/a Andrey, Born: 4/31/80. Appeal of WILLIAM J., Father.
    Superior Court of Pennsylvania.
    Submitted April 16, 1986.
    Filed July 11, 1986.

      John A. Roth, Latrobe, for appellant.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   TAMILIA, Judge:

This is an appeal from a final decree terminating the parental rights of appellant, William J., to Andrey J.

On April 24, 1980, Andrey J. was born out of wedlock to Martha Ann M. and appellant. On July 3, 1980, while in the custody of both parents, Andrey J. was admitted to Children’s Hospital of Pittsburgh with fractures of the left femur and both tibias, a broken right clavicle, radius, and ulna, and a displaced right femur (Petitioner’s Exhibit 1 p. 1 and Exhibit 2 pp. 1-2). After a dispositional hearing, Judge Marker found that Andrey J. was an abused and dependent child and by Order dated August 7, 1980, placed him in the protective custody of the Westmoreland County Children’s Bureau (Petitioner’s Exhibit 2 p. 3). After further investigation of the causes of the minor child’s injuries, Martha was charged with aggravated assault and endangering the welfare of children. After pleading guilty to the charges, she was sentenced to five years probation on the charge of aggravated assault and to two years probation to run concurrently on the charge of endangering the welfare of children (Petitioner’s Exhibit 15 p. 1).

On February 4, 1982, appellant pled guilty to charges of theft and receiving stolen property and was sentenced to eight to twenty-three months incarceration (N.T. 5/10/82 p. 43). The Westmoreland County Children’s Bureau filed a petition on March 26, 1982 to terminate the parental rights of Martha and appellant, William J., under 23 Pa.C.S.A. § 2511(a)(1), (2) and (5). After a hearing on May 10, 1982, the lower court entered an Order on October 7, 1983 terminating the parental rights of Martha and appellant. Appellant appealed to this Court. On February 14, 1984, our Court granted appellant’s Petition for Remand as exceptions had not been filed and no Decree Nisi was entered by the lower court. The lower court denied appellant’s post-trial motions on October 12, 1984, whereupon appellant perfected the present appeal to this Court.

The sole question proposed by the appellant is whether his parental rights should be terminated when his failure to contact his child for a period in excess of six months was the result of the request of a public defender defending the mother in a criminal proceeding involving charges of assault against Andrey J.

The appropriate standard of review in cases involving the termination of parental rights is limited to a determination of whether the decision to terminate parental rights is supported by competent evidence. If review of the record does not reveal an abuse of discretion, an error of law or insufficient evidentiary support for the lower court’s findings, the Order must stand. Lookabill v. Moreland, 336 Pa.Super. 520, 485 A.2d 1204 (1984), Matter of Adoption of Baby Boy Allen, 337 Pa.Super. 133, 486 A.2d 517 (1984); see also In re Adoption of B.K.W., 348 Pa.Super. 333, 502 A.2d 235 (1985).

Parental rights may be terminated if a parent, by conduct continuing for a period of at least six months, either has evidenced a settled purpose of relinquishing his parental claim to his child or has refused or failed to perform parental duties (23 Pa.C.S.A. § 2511(a)). The performance of parental duties is an affirmative obligation to love, protect, support and maintain communication and association with the child. Consequently, being a parent is more than a passive state of mind, it is an active occupation, calling for a constant affirmative demonstration of parental love, protection and concern. A parent must exert himself to take and maintain a place of importance in the child’s life. In re Adoption of M.J.H., 348 Pa.Super. 65, 501 A.2d 648 (1985). The proof required in terminating parental rights is by evidence that is clear and convincing. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

There is sufficient evidence in the record to establish that, by his conduct continuing for a period in excess of six months, appellant has either evidenced a settled purpose of relinquishing his parental claim or failed to perform his parental duties. From the time of placement to the termination hearing, appellant did not send any cards, toys or gifts to his son for Christmas or birthday (N.T. 5/10/82 p. 6). The parents failed to attend the meeting for the placement service plan on January 19, 1981 and the placement review meetings on June 25, 1981 and February 25, 1982 (Petitioner’s Exhibit 3 p. 4, Exhibit 5 p. 2, and Exhibit 13 p. 2). At no time did appellant ask his child’s caseworker what had to be done in order to have his son returned to him (N.T. 5/10/82 p. 27).

Whether a parent has evidenced a settled purpose of relinquishing his parental claim to a child, or has refused or failed to perform parental duties for a period of at least six months, must be analyzed in light of any explanation offered by the parent. Lookabill v. Moreland, 336 Pa.Super. 520, 485 A.2d 1204 (1984); In Re Adoption of Ostrowski, 324 Pa.Super. 216, 471 A.2d 541 (1984); see also In Re T.L.G. 351 Pa.Super. 256, 505 A.2d 628 (1986).

Appellant alleges his failure to maintain any contact with his son was the result of instructions given by Angela Mitas, the public defender who represented Martha Ann M. in the criminal proceeding on the child abuse charge. Both parents testified that the public defender informed them not to visit their child until Martha’s five-year probation was over (N.T. 5/10/82 pp. 68, 91-92). The lower court implicitly rejected appellant’s explanation for his absence when it found appellant had a settled purpose of permanently relinquishing his parental rights and had not provided love, affection or for the needs of the child.

The testimony indicates appellant was not directed to remain away from his child until the end of Martha’s probation. Ms. Mitas testified that she advised Martha, before her plea of guilty, to visit with her child but not to attempt to see the child right away (N.T. 5/10/82 pp. 56-61). The Order of probation for Martha did not contain any provision prohibiting her from visiting her child (N.T. 5/10/82 p. 42) nor wa,s there any basis for denial of visitation to the appellant. Appellant acknowledged he was never charged criminally as a result of the child abuse incident in 1980 for which Martha was placed on probation. In addition, the child’s caseworker made inquiry of both parents as to why they did not request visitation but never received an explanation for their failure to see the child (N.T. 5/10/82 pp. 23-24). The one reason appearing on the record was lack of transportation (N.T. 5/10/82, p. 93) which would have been made available by the agency upon request.

Assuming for purposes of argument that counsel told appellant to remain away from his child until the end of Martha’s probation, this would not constitute a sufficient justification for his failure to visit his child. In In Re Adoption of Y.S., 487 Pa. 99, 408 A.2d 1373 (1979), the Pennsylvania Supreme Court stated,

... Appellants assert the reason they did not attempt contacting Y.S. during the period from August 3, 1976 to July 12, 1977 was on the advice of counsel. In the Matter of Adoption of David C., 479 Pa. at 11, 387 A.2d 804, the Court suggests the attorney’s advice is not sufficient justification for refusal or failure to visit a child, and we here, on this record, so hold.

Another basis for terminating appellant’s parental rights, upon which the lower court could have relied, is 23 Pa.C.S.A. § 2511(a)(5) which provides:

The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(5) The child has been removed from the care of the parent by the court ... for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

Since the child’s placement in the custody of the Westmoreland County Children’s Bureau in July of 1980, by Order of court, appellant had not contacted his child or requested any information concerning his well being (N.T. 5/10/82 pp. 4, 5, 7, 50, 51, 91). He failed to participate in scheduled meetings designated for planning the correction of the conditions for placement and monitoring the progress of the plan (Petitioner’s Exhibit 3 p. 4, Exhibit 5 p. 2 and Exhibit 13 p. 2). In addition, appellant failed to improve his parenting skills or the family’s housing condition (N.T. 5/10/82 pp. 17, 93-94). Appellant made no affirmative effort to maintain the parent-child relationship, and his efforts to improve the circumstances necessitating the child’s initial placement in foster care are not evident, nor is appellant likely to remedy the conditions which led to the placement of the child within a reasonable period of time. See In Re Baby Boy P., 333 Pa.Super. 462, 482 A.2d 660 (1984). The parental termination statute does not require a showing that a parent have an opportunity to inflict substantial harm upon the child when a parent has demonstrated a continued inability to conduct his life in a fashion that would provide for his child. The three conditions found in 23 Pa.C.S.A. § 2511(a)(2), which would result in termination, have been met. These include: 1) repeated and continued incapacity, abuse, neglect or refusal, which 2) has caused the child to be without essential care, control or subsistence and 3) the cause of this incapacity, abuse, neglect or refusal cannot or will not be remedied. See In Re Adoption of Michael J.C., 506 Pa. 517, 528, 486 A.2d 371, 373 (1984); In Re William L., 477 Pa. 322, 383 A.2d 1228 (1978), cert. denied 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978). In light of appellant’s total disinterest in the rearing and development of his child, termination of appellant’s parental rights would best serve the needs and welfare of Andrey J. and allow the child to acquire a stable environment from which he will receive parental care and support. This child is in a stable and healthy environment with foster parents who would be the adopting parents upon completion of the termination proceeding. That environment is the present one and it should not be disrupted.

Although not raised in his statement of issues, appellant contends that he did not demonstrate a settled purpose to relinquish his parental claim because he made contact with his child through his parents, and his parental rights should not be terminated because there is no evidence that causes of the separation cannot be remedied. We find no merit to these arguments.

For the above-stated reasons, we conclude there is sufficient evidence to support the lower court’s findings to terminate appellant’s parental rights, and the lower court did not abuse its discretion or commit an error of law.

Order affirmed.

      . This action is pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    512 A.2d 693
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard TRADER, Appellee.
    Superior Court of Pennsylvania.
    Argued March 12, 1986.
    Filed July 14, 1986.

      Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellant.
    Carole Kafrissen, Philadelphia, for appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

On December 19, 1984, at or about 8:10 p.m., a burglar alarm was activated at Saul Levy’s Furniture Warehouse in the City of Chester, Delaware County. Responding police found Richard Trader in a crouched position in an adjoining, vacant building. Trader had a flashlight in his possession but was not carrying burglary tools. Although a hole had been forced in the wall between the vacant building and the warehouse, neither plaster dust nor wooden splinters were found on Trader’s clothing. After the Commonwealth had proven these facts, the trial court sustained a defense demurrer to charges of criminal trespass and attempted burglary. Mere presence at the scene of a crime, the trial court held, was insufficient to prove guilt.

The sustaining of Trader’s demurrer was a determination that as a matter of law the Commonwealth’s evidence was insufficient to sustain a conviction. This was an acquittal. Because reversal would require a second trial in violation of the double jeopardy clause of the United States Constitution, an appeal by the Commonwealth can serve no proper purpose and, therefore, is barred. Smalis v. Pennsylvania, 476 U.S. -, 106 S.Ct. 1745, 90 L.Ed.2d 116, (1986). See also: United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). The Commonwealth’s appeal in the instant case, therefore, must be quashed.

Appeal quashed.


author: WICKERSHAM, Judge:

text:
    512 A.2d 694
    Michael J. MAHONEY, v. B. Kathryn MAHONEY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 21, 1986.
    Filed July 17, 1986.

      Steven S. Hurvitz, State College, for appellant.
    H. Denning Mason, III, State College, for appellee.
    Before WICKERSHAM, BROSKY and WATKINS, JJ.
   WICKERSHAM, Judge:

Appellant, B. Kathryn Mahoney, appeals from the order of the court below awarding to appellee, Michael J. Maho-ney, physical custody of the parties’ son, Sean Michael Mahoney.

Appellant and appellee were married on August 30, 1974. It was the second marriage for each. Sean was born on July 27, 1975. During the marriage, appellant and appellee lived together with Sean and Benjamin Craighead, appellant’s son from her prior marriage, in State College, Pennsylvania. Appellant, a clinical psychologist, taught at Pennsylvania State University on a parttime basis, and appellee was a professor of psychology at the same institution.

The parties separated in September of 1978, reconciled for a one year period in 1979 and then separated again in May of 1980. They divorced in December of 1980. Following their divorce, the parties agreed on a custody plan under which Sean would live with appellant from Wednesday to Saturday and with appellee from Sunday to Wednesday. This arrangement was followed by the parties until appellee accepted a position on the faculty at the University of California in January of 1984, necessitating his move to Santa Barbara. The parties then negotiated an agreement under which Sean was to spend the school term, 1985-86, with appellant in Pennsylvania and summer vacation with appellee in California. This agreement could not be finalized, however, and appellee ultimately filed a petition for Sean's custody.

The Honorable Charles C. Brown, Jr., President Judge of the Court of Common Pleas of Centre County, upon consideration of the petition and testimony presented by both parties at a two-day hearing, entered an order granting joint legal custody to both parents and physical custody to appellee. The court subsequently stated reasons in support of its order, filed September 20,1985, and issued an opinion, making findings of fact and conclusions of law on November 21,1985. Appellant filed this timely appeal to our court presenting the following issues for our review:.

I. Did the trial court err in awarding primary physical custody to the father in spite of the doctrine against separating siblings where no compelling reasons which favor separating the brothers were presented?
II. Did the trial court err in giving substantial weight to the slight preference of the child to live in California where there were no reasons offered in support of the preference, the preference was marked by ambivalence and where the testimony demonstrated that the preference was influenced by pressure from the father?
III. Did the trial court err in finding that the best interests of the child lie in an untested environment with the father where the testimony demonstrated that he was thriving in a stable environment with his mother in State College?

Brief for Appellant at 1.

Initially, we recognize the standard of review which must be applied in consideration of the above issues. As our supreme court enunciated in Commonwealth ex rel. Robin son v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984), quoting our present Chief Justice, then Mr. Justice Nix, in Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977) (plurality op.):

(O)ur law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type ... Thus, an appellate court is not bound by deductions or inferences made by a trial court from the facts found; ... nor must a reviewing court accept a finding which has no competent evidence to support it ...
******
However, we have also taken great care to stress: “... (T)his broader power of review was never intended to mean that an appellate court is free to nullify the fact-finding function of the hearing judge ...”
******
(but, instead, is to remain) within the proper bounds of its review and (base a decision) upon its own independent deductions and inferences from the facts as found by the hearing judge. (Citations omitted; emphasis added.)
470 Pa. at 295-6, 368 A.2d at 637.
Mr. Justice Nix further stated in Carson:
This fundamental limitation of a reviewing court’s power has been articulated by the Superior Court as well in defining its own scope of review in custody matters: .. (W)e have recognized that the trial judge is in a position to evaluate the attitude, sincerity, credibility, and demean- or of the witness. Because we are not in such a position, we have recognized that a trial judge’s determination of custody should be accorded great weight. Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge ...” (Citation omitted; emphasis added.).
470 Pa. at 296, 368 A.2d at 637.

Id. 505 Pa. at 236-37, 478 A.2d at 806 (emphasis in the original).

Thus, we as an appellate court are “empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings ... and, thus, represent a gross abuse of discretion.” Id., 505 Pa. at 237, 478 A.2d at 806 (citations and footnote omitted) (emphasis in the original). Accord Agati v. Agati, 342 Pa.Super. 132, 492 A.2d 427 (1985); Delbaugh v. Delbaugh, 337 Pa.Super. 587, 487 A.2d 417 (1985). The burden of proving that the trial court’s child custody decree is manifestly erroneous or constitutes a gross abuse of discretion rests on appellant. Absent such proof, we must affirm the decision of the trial judge who has the singular advantage of observing the demeanor of the parties and hearing the testimony of the witnesses. Bresnock v. Bresnock, 346 Pa.Super. 563, 500 A.2d 91 (1985); Smith v. Smith, 337 Pa.Super. 9, 486 A.2d 453 (1984). Keeping in mind the above standard, we now address those issues presented by appellant.

First, appellant contends that the trial court erred in not considering the policy against separation of siblings and awarding custody accordingly. See Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); Beers v. Beers, 342 Pa.Super. 465, 493 A.2d 116 (1985). However, the guiding principle in determining Sean’s custody was the manner in which his best interests would be served. See Gonzalez v. Gonzalez, 337 Pa.Super. 1, 486 A.2d 449 (1984). Although the general rule is that siblings should not be separated without compelling reasons, this policy is but one factor to be considered, together with others, in determining the best interest of the child. See, e.g., Haag v. Haag, 336 Pa.Super. 491, 499-500, 485 A.3d 1189, 1193 (1984) (“[T]his rule must yield to the paramount principle that the best interests of each individual child must be the determining factor in custody decisions.); M.D. v. B.D., 336 Pa.Super. 298, 304, 485 A.2d 813, 816-17 (1984). (“[T]his policy is but one factor to be considered, together with others, in determining the manner in which the child’s best interests will be served.”) McAnallen v. McAnallen, 300 Pa.Super. 406, 415, 446 A.2d 918, 923 (1982) (“[T]he best interests of the children in the instant case must prevail over any abstract policy....”)

Since the policy against separation of siblings is not controlling, under our narrow scope of review, we can discern no abuse of discretion or manifest error presented by appellant which would warrant reversal on this ground. We must conclude from the record that the trial court, after hearing the testimony of the numerous witnesses in this case, weighed that testimony carefully and found that Sean’s overall best interests would be served by the award of custody to appellee, although this necessitated Sean’s separation from one half-sibling.

Appellant next argues that the trial court erred in giving substantial weight to Sean’s preference. We disagree. As acknowledged by appellant, the law of this Commonwealth holds that the stated preference of a child should be afforded appropriate weight. See, e.g., Constant A. v. Paul C.A., 344 Pa.Super. 49, 496 A.2d 1 (1985). This court has repeatedly stated that “[although the express wishes of the child are not controlling in custody decisions, they do constitute an important factor which must be carefully considered in determining the child’s best interest.” Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 299, 426 A.2d 555, 559 (1981). The particular weight to be given a child’s preference as to custody is to be determined by the trial judge who sees and hears the child, depending to a great extent upon the age, maturity and intelligence of the child, Jones v. Stone, 343 Pa.Super. 416, 495 A.2d 205 (1985); Burr v. Morgart, 339 Pa.Super. 341, 488 A.2d 1155 (1985), so long as it is based on good reasons. See Constant A. v. Paul C.A., supra.

In the instant case, the trial judge found that Sean was an intelligent ten year old with an I.Q. of one hundred and thirty, who repeatedly indicated his preference to live with his father in California, at least for a while, so as to be in a better position to choose between his parents' residences. Sean most clearly expressed this preference in a letter to appellant, as follows:

Dad says he thinks it is important that I live in Santa Barbara for a while and that we are only deciding for next year right now. I think he is right, and I really want you to let me go there next year.
Then we can decide each year and I will know Santa Barbara like I know State ColIege[.] I know that we will miss each other, but I know it is [right] to go.

Letter from Sean Mahoney to B. Kathryn Mahoney, Appel-lee-Petitioner’s Exhibit 1; Lower ct. op. at 10-11.

Although Sean chose not to elaborate beyond the reasoning of the above letter during his in-chambers hearing with the trial judge, he voluntarily stated “a slight preference to live in California” and did not deny the truth of the statements made in the letter. Additionally, Sean reiterated his preference to at least five witnesses, before the custody hearing. We must conclude that Sean’s unvarying preference to live with his father was properly granted weight by the trial court in determining his best interests. Cf. Commonwealth ex rel. Pierce v. Pierce, supra (twelve year olds’ preference for father because “[s]ometimes [my mother] feels cold.... I wouldn’t feel right living with her” found relevant); Gonzalez v. Gonzalez, supra (six year old’s statement that “I want to live with Daddy---Because I love my daddy and I want to stay with him” found relevant).

Appellant attempts to discredit Sean’s preference, claiming that it is solely the result of pressure from appellee. We find no support in the record for this contention. When the same issue was argued below, the lower court had “no question as to the authenticity of Sean’s statements”. Lower ct. op. at 11. While some amount of pressure is inevitable in any child custody consideration, the court below, after reviewing all the evidence, found nothing to convince it that Sean’s preference was any but his own. We find no evidence in the record which would lead to a contrary conclusion, and therefore conclude, under our standard of review, that Sean’s preference was properly considered by the court below.

Finally, we reach appellant’s last issue, in which she alleges that the trial court erred generally, in the determination of Sean’s best interests, by granting physical custody to appellee. We disagree.

As stated by the trial court, although both parties had good relationships with Sean, appellee shared the more significant bond with him and the award of custody was premised on this factor. This finding was based on the resolution of conflicting testimony presented by the parties’ witnesses and such a factual finding will be reversed by this court only for manifest error. Commonwealth ex rel. Robinson v. Robinson, supra. Where there is an arguable case on both sides, this court will not second-guess the trial court’s factual findings. See, id.

Nor will we dispute the applicability of this particular factual finding in determining Sean’s best interests in this case. It is well established that the strength of the child’s relationship with each parent is a critical factor in custody determinations. See, e.g., English v. English, 322 Pa.Super. 234, 469 A.2d 270 (1983) (where parents equally fit, or nearly so, stable relationship of critical importance); Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983) (relationship important).

In the instant case, the lower court found that Sean’s relationship with appellee was stronger and more stable than his relationship with appellant, and properly found the greater attachment relevant. See Gonzalez v. Gonzalez, supra. See also Commonwealth ex rel. Montgomery v. Montgomery, 296 Pa.Super. 325, 442 A.2d 791 (1982) (father more clearly placed child’s welfare above his own).

Appellant contends that the lower court nonetheless erred in its failure to consider the merits of the potentially more stable environment which she would provide in State College. See Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980); Haraschak v. Haraschak, 268 Pa.Super. 173, 407 A.2d 886 (1979). We conclude, however, that the trial court after duly considering those merits, found them outbalanced in this case by those to be derived from Sean’s experience of a new environment in California. It is clear from the record that the court recognized the significant disruption in school work and lifestyle which would be occasioned by Sean’s cross-country move, but concluded that it was necessary in order for Sean’s best interests to be achieved. The court found that Sean was already well-travelled, that he had thrived when exposed to different environments in the past, and could be expected to similarly thrive in the custody of appellee in California. This finding together with the findings that Sean and appellee shared the deeper emotional bond and that Sean’s preference was to live with appellee, as discussed supra, support the lower court’s conclusion that the award of physical custody to appellee, was indeed, in Sean’s best interests. Applying once again the standard of review of Commonwealth ex rel. Robinson v. Robinson, supra, absent proof of a gross abuse of discretion or manifest error, we must affirm the decision of the trial judge who has enjoyed the opportunity to observe the demeanor of the parties and listen to the testimony of the witnesses. See Bresnock v. Bresnock, supra.

For the reasons stated above, we therefore affirm the order of the Court of Common Pleas of Centre County.

Order affirmed.

      . Benjamin Craighead, Sean’s half-sibling, continues to live with appellant, his mother.

      . We note that the fact that the court failed to discuss specifically the existence of a general policy in favor of raising siblings together was not alone reversible error. See M.D. v. B.D., 336 Pa.Super. 298, 485 A.2d 813 (1984). We will not remand merely to give the hearing court an opportunity to discuss such a policy when to do so would serve only to further prolong this litigation.

      . Appellee is remarried and his wife was expecting a child at the time of the custody hearing.

      . Sean has spent six months in Rome, Italy and a substantial period of time in the Caribbean, Colorado, and California.


author: CIRILLO, President Judge: WIEAND, Judge,

text:
    512 A.2d 699
    COMMONWEALTH of Pennsylvania, v. Andrew L. GUMPERT, Appellant.
    Superior Court of Pennsylvania.
    Argued April 8, 1986.
    Filed July 18, 1986.

      William T. Wilson, Pittsburgh, for appellant.
    Edward J. Greene, Assistant District Attorney, West Chester, for Com. appellee.
    Before CIRILLO, President Judge, and ROWLEY and WIEAND, JJ.
   CIRILLO, President Judge:

Appellant Andrew L. Gumpert was charged with driving under the influence of alcohol, 75 Pa.C.S. § 3731. He was initially tried before a jury, but no judgment resulted because the jurors could not reach a unanimous decision. A subsequent bench trial resulted in his conviction. On appeal, appellant challenges the conviction on the ground that prior to his bench trial there was no colloquy between the judge and himself to establish that he knowingly waived his right to a trial by jury.

Initially, we must consider a procedural shortcoming in the manner in which this appeal was taken. Appellant has captioned it as an appeal from the order denying his post-trial motions. The Commonwealth urges that insofar as such appeals must be taken from the final judgment of sentence, the present appeal must be dismissed as interlocutory.

If parties were to appeal from every trial court decision as it was made in the course of a case, such a “shotgun” approach to appellate review would swell our dockets and might even create the possibility of inconsistent decisions related to the same trial. Thus, there exists a long standing rule that parties must wait until a final decision is rendered, after which they may air their grievances in a single orderly appeal. In the criminal context, it is the judgment of sentence which marks the completion of the trial court proceedings, and accordingly (with certain carefully delineated exceptions), a judgment of sentence is a prerequisite to appealability. Commonwealth v. Luciano, 345 Pa.Super. 83, 497 A.2d 655 (1985); Commonwealth v. Reagan, 330 Pa.Super. 417, 479 A.2d 621 (1984); Commonwealth v. Smith, 322 Pa.Super. 389, 469 A.2d 676 (1983). Indeed, in reviewing a decision from the 3rd Circuit, the Supreme Court of the United States recently recognized the importance of this rule in Flanagan v. United States, 465 U.S. 259, 263-264, 104 S.Ct. 1051, 1054, 79 L.Ed.2d 288, 293-294 (1984):

The final judgment rule serves several important interests. It helps preserve the respect due trial judges by minimizing appellate-court interference with the numerous decisions they must make in the pre-judgment stages of litigation. It reduces the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals. It is crucial to the efficient administration of justice.

We are satisfied that in the present case the error is purely one of form and not substance, and therefore cannot possibly be in contravention of the principles just set forth. The appeal is captioned as being from an interlocutory order, but it is clear that the case had been fully and finally resolved when the appeal was taken; the notice of appeal and judgment of sentence were entered on the docket on the same day. Thus, any and all trial court errors that might exist could be considered on this single appeal. Accordingly, we will not deem appellant's error fatal. This is not to say we are indifferent to the proper captioning of appeals, but only that justice is best served by proceeding to the merits of the case.

It is undisputed that prior to the bench trial appellant was given no jury waiver colloquy pursuant to Pa.R.Crim.P. 1101. Appellant maintains that it is the duty of the trial court to engage in a colloquy with the accused which demonstrates a knowing and intelligent waiver of the right to a trial by jury, and that failure to provide such a colloquy is reversible error. The Commonwealth urges that insofar as no objection was made to the absence of a colloquy until post-trial motions, appellant has waived any challenge to the trial court’s failure to comply with Rule 1101. On this point, appellant contends such error is not of the type subject to waiver for failure to object at trial.

Whether a contemporaneous objection must be made to the absence of a waiver-of-jury-trial colloquy is an issue which has not been often addressed. Whereas in this case, trial counsel is raising the issue on appeal, more often when the issue is presented for our consideration, it is argued by new counsel who primarily urges the ineffectiveness of trial counsel for never raising the issue at all; it is couched in terms of trial counsel’s failure to address the possible colloquy deficiency post-trial, without referring to any earlier opportunity to make an objection on the same point. See, e.g., Commonwealth v. Easley, 341 Pa.Super. 381, 491 A.2d 868 (1985); Commonwealth v. Carson, 503 Pa. 369, 469 A.2d 599 (1983); Commonwealth v. King, 317 Pa.Super. 196, 463 A.2d 1152 (1983); Commonwealth v. Williams, 301 Pa.Super. 271, 447 A.2d 963 (1982); Commonwealth v. Fortune, 289 Pa.Super. 278, 433 A.2d 65 (1981); Commonwealth v. Jones, 272 Pa.Super. 444, 416 A.2d 539 (1979). Thus, since the decisions which follow such arguments similarly discuss the ineffectiveness in relation to the absence of a post-trial motion, the implication arose that it is enough to raise the issue for the first time in post-trial motions. See, e.g., Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978).

We are aware of no case, however, which holds expressly that no contemporaneous objection need be made to a faulty (or, as here, completely omitted) colloquy. In our view, such a holding would be contrary to Pa.R.Crim.P. 1123(a), which limits post-trial motions to those matters addressed in pre-trial proceedings or at trial. Apparently cognizant of the broad scope of Rule 1123, appellant alternately urges his point from a slightly different angle: if counsel is forced to urge compliance with Rule 1101 prior to trial in the accused’s presence, the deficiency will be cured because the accused will at that time be made aware of the Rule 1101 mandates. In all candor we find this argument shocking. What counsel is really arguing is that curing the defect when it arises is to be avoided because he will then have one less arrow in his quiver with which to attack the proceedings on appeal. Counsel attempts to soften this position by asserting that in fact the defect cannot be cured in the presence of the defendant if there is ever to be any appellate review of the issue because if it is cured there will be nothing for us to consider. In light of the seemingly endless flow of cases on our docket, we only wish that more problems could be so easily resolved. When the accused’s interests are placed in the forefront, it is far better to cure the error at trial and never resort to an appeal at all. We are at a loss as to where counsel derives his supposition that there should be some appellate review of the matter simply for its own sake. In any event, history tells us that counsel can rest assured that even if objected to at trial, Rule 1101 deficiencies will nonetheless require appellate review from time to time. A case where the deficiency can be cured, however, cannot and should not be among these.

As a corollary, counsel maintains that to place the burden on him to make an objection at trial improperly shifts the burden away from the trial judge, who in counsel’s view is unilaterally saddled with the obligation of providing an adequate colloquy. At a minimum, this position ignores the many cases which have considered counsel’s ineffectiveness in not securing an adequate colloquy.

In Commonwealth v. Greene, 483 Pa. 195, 198-199, 394 A.2d 978, 979-98 (1978), Justice Pomeroy, joined by Justice Larsen, recognized in a dissenting opinion that contrary to appellant’s position, it is not the judge’s duty alone to provide a proper colloquy, thus making a contemporaneous objection proper:

Now ... that there is virtually a prescribed content to the colloquy which must precede acceptance of a jury trial waiver, I suggest that objections to the sufficiency or accuracy of the colloquy should initially be raised at the time of the colloquy and before the non-jury trial has been conducted. I am mindful of the fact that Pa.R.Crim.P. 1101 as interpreted by the Morin decision [supra] places upon the trial judge the obligation of seeing to it not only that the colloquy relative to jury waiver shall “appear on the record,” but also that the colloquy which appears on the record shall be sufficient to support the court’s finding that the waiver is knowing and intelligent. This, however, is no different than any other duty a judge has to perform which may bear on a litigant’s constitutional rights; we expect a judge to apply the law as it has been written — this is the trial judge’s burden, as it were. But to say as much is not to relieve the trial lawyer of his obligation to call any mistakes of the trial judge to his or her attention at the earliest practicable time. The language of Justice Roberts’ dissenting opinion in Commonwealth v. Williams, 432 Pa. 557, 570, 248 A.2d 301, 307 (1968) [failure to object to jury charge did not preclude appellate review because fundamental error involved], quoted with approval in Commonwealth v. Clair, 458 Pa. 418, 421, 326 A.2d 272, 273 (1974), is equally applicable here:
“The majority now — contrary to the whole course of modern trial procedure — encourages defense counsel to sit by silently without calling errors to the trial court’s attention until after the guilty verdict is returned____ Where counsel fails to call errors to the attention of the trial judge, the majority ignores that deficiency and assumes the function of protecting those failures by granting relief despite the silence of counsel at trial.” (Emphasis in original.)
The Clair court reasoned that “[t]he trial judge must be given an opportunity to rectify errors at the time they are made. As we have often said before: ‘[A] party may not remain silent and take chances on a verdict and after-wards complain of matters which, if erroneous, the Court would have corrected.’ Commonwealth v. Marlin, 452 Pa. 380, 382, 305 A.2d 14, 16 (1973). See also, Commonwealth v. Morgan, 448 Pa. 494, 295 A.2d 77 (1972).” 458 Pa. at 421, 326 A.2d at 274.
To the extent that Commonwealth v. Morin, supra, suggested that objections to a jury trial waiver colloquy may be raised for the first time at post-verdict motions, I think it was mistaken; I would hold that such objections must be raised at the time of the colloquy in order to be preserved for appellate review. Since in the case at bar the first objection to the sufficiency of the colloquy was not taken until the post-trial motion stage, I think it came too late.

More recently, in Commonwealth v. DeGeorge, 506 Pa. 445, 455, 485 A.2d 1089, 1094 (1984), Chief Justice Nix conceded in a dissenting opinion that the Court in Morin erroneously overlooked the fact that a contemporaneous objection should have been made in order to preserve the issue; the post-trial motion, standing alone, should not have been enough.

In sum, there is the broad scope of Rule 1123(a), demanding an objection at trial; there is no case expressly carving an exception for jury waiver colloquies; any implication to that effect in Morin has been roundly rejected in dissenting opinions in Greene and DeGeorge. We are compelled to conclude that the waiver colloquy issue in the present case has been waived insofar as the trial court was denied the opportunity to correct the deficiency. Indeed, the trial court in the present case was deliberately denied that chance when counsel intentionally remained silent concerning the shortcoming in an attempt to retain the error and thus have some basis for an appeal.

In any event, we observe that even if the issue were preserved, a colloquy deficiency does not automatically necessitate a new trial. In DeGeorge our Supreme Court held that the proper procedure in such instance is to remand only for an evidentiary hearing to determine whether the waiver was in fact knowing and intelligent. This conclusion was concurrent with the observation that evidence beyond the colloquy itself may be considered in examining the validity of a waiver. All relevant circumstances are to be taken into account. See also, Commonwealth v. Herberg, 306 Pa.Super. 245, 452 A.2d 536 (1982). In the present case, appellant has at no time maintained that he actually desired a jury for his retrial; his post-trial motions are silent in this regard as are the statement of questions and argument portions of his brief to this Court. Nor has appellant stated that as a matter of fact he does not understand the rights which are waived by foregoing a trial in front of his peers. His first trial was before a jury such that he was necessarily exposed to those factors unique to a jury trial that form the thrust of a jury waiver colloquy; at a minimum, the resulting mistrial made appellant acutely aware of his right to a unanimous verdict. These considerations would militate strongly against finding an unknowing or unintelligent jury waiver even if we were to remand for such a determination.

Order and judgment of sentence affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

The circumstances under which appellant elected to be tried by the court without jury in this case demonstrate clearly that appellant understood his right to trial by jury and that his waiver thereof was a voluntary and intelligent act. Indeed, his first trial on the same charge had been aborted when the jury was unable to agree upon a unanimous verdict. Therefore, I agree with the majority that the judgment of sentence should be affirmed. See: Commonwealth v. DeGeorge, 506 Pa. 445, 485 A.2d 1089 (1984) (court may consider circumstances outside record colloquy in determining validity of waiver).

I do not join the majority’s decision that Pa.R.Crim.P. 1123(a) requires, as a general rule, a contemporaneous objection to the absence of a waiver-of-jury trial colloquy or to a defective colloquy in order to preserve the issue for post-trial review. Indeed, in Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978), a majority of the Supreme Court suggested otherwise.

      . Judge Wieand notes that we are entitled to consider matters beyond the colloquy itself in determining the validity of a waiver, and that the circumstances here, taken as a whole, clearly demonstrate a knowing waiver. Thus, he suggests we need not address whether the absence of or a defect in such a colloquy must be objected to at trial. By our view, however, logic dictates that we can consider nothing, within the colloquy or beyond it, until we find the issue properly preserved for appellate review.


author: POPOVICH, Judge:

text:
    512 A.2d 704
    COMMONWEALTH of Pennsylvania, Appellant, v. Carson Lynn BRUENING.
    Superior Court of Pennsylvania.
    Argued April 29, 1986.
    Filed July 14, 1986.
    Petition for Allowance of Appeal Denied Dec. 29, 1986.

      David J. Flower, Assistant District Attorney, Somerset, for Commonwealth, appellant.
    Sandra W. Upor, Somerset, for appellee.
    Before DEL SOLE, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

The Commonwealth appeals from the order of the Court of Common Pleas of Elk County suppressing evidence secured prior to the arraignment of the defendant-appellee, Carson Lynn Bruening. We reverse.

The Commonwealth’s right to appeal the instant interlocutory order was re-affirmed recently in Commonwealth v. Dugger, 506 Pa. 537, 545-46, 486 A.2d 382, 386 (1985) (“We granted the Commonwealth an appeal, and defined it a substantial handicap whenever the Commonwealth is denied the use of all their evidence. We did not say that the Commonwealth was obligated to demonstrate the need.” (Emphasis in original)).

Since the Commonwealth is appealing the adverse ruling of a suppression court, we, as a reviewing court, “must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.” Commonwealth v. Hamlin, 503 Pa. 210, 216, 469 A.2d 137, 139 (1983). So viewed, the evidence reveals that at approximately 10:30 p.m. on November 14, 1984, Trooper Clay Mankamyer of the Pennsylvania State Police was engaged in routine traffic patrol along Route 219 in Somerset County. The defendant’s vehicle was observed swerving from the right lane to the left lane and, occasionally, the vehicle would proceed down the middle of the south bound lanes of the four-lane highway. After following the defendant for .3 miles, the trooper stopped the defendant and conducted a field sobriety test which the defendant failed. He was placed under arrest for, inter alia, driving while intoxicated (75 Pa.C.S. § 3731), and, thereafter, he was transported to the State Police barracks in Somerset to have his blood-alcohol level measured.

Upon arrival at the barracks, the defendant was advised of his rights, after which he informed the police that he had consumed six (6) beers between 6:00 p.m. and the time of his arrest. His subsequent refusal to submit to a breathalyzer or to contact anyone to provide him with transportation home prompted Trooper Mankamyer to contact the magistrate, “who suggested that the officer lodge the defendant in the county jail. The duty magistrate indicated that he was not available to provide the defendant with a preliminary arraignment.” (Commonwealth’s Brief at 5)

The defendant was housed in the county jail from 12:00 midnight until his release at 1:30 a.m. on the morning of November 15, whereupon he was driven home by two State Troopers. During his stay in jail, “no tests were performed ... and no statements were taken from [the defendant.]” Id.

After the filing of charges, the defendant petitioned the Somerset County Court of Common Pleas for a change of venue. It appears that the case received extensive media coverage, prompted “mass meetings”, generated letters to the local newspaper “condemning the defendant in particular and drunk driving in general and supporting the actions of the arresting officer”, who, as a result of the arrest, “was suspended from duty and transferred to another county.” (See Omnibus Pre-Trial Motion For Relief, Points 3 & 8)

The matter was certified to the Supreme Court of Pennsylvania, which, by order dated May 20, 1985, transferred the case to the 59th Judicial District (Cameron and Elk Counties).

The defendant’s motion to quash and/or suppress was heard by President Judge Paul B. Greiner. In a memorandum opinion and order dated May 29, the motion to quash was denied, but, on the strength of Pa.R.Crim.P. 130 and Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), any “statements made by the defendant, including but not limited to his refusal to take the breath test,” were suppressed. This appeal followed.

In order to appreciate our ruling, one must understand the necessity out of which Davenport was bom.

At first, the conduct of the police was regulated by Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), which is now embodied in Rule 130(a), whereby inculpatory evidence secured prior to and as a result of a prearraignment delay was excluded from trial, provided: 1) the delay was unnecessary; 2) the evidence obtained was prejudicial; and 3) the incriminating evidence was reasonably related to the delay. Commonwealth v. Williams, 455 Pa. 569, 572, 319 A.2d 419, 420 (1974). Under Futch, the only time period relevant to this determination was the amount of time “the accused [was] in custody up until the incriminating evidence [was] obtained. It ... [was] ludicrous to suggest that the time following the statement was related to its procurement.” Commonwealth v. Smith, 487 Pa. 626, 631, 410 A.2d 787, 790 (1980).

However, the experience following Futch prompted our Supreme Court, in an attempt to bring more certainty, simplification and even-handed application of the prompt arraignment requirement, to adopt a rule which fixed a six-hour period as the time within which an accused had to be arraigned following his arrest. Failure to do so would render inadmissible any statement obtained during this time-frame. See, e.g., Commonwealth v. Bennett, 498 Pa. 656, 450 A.2d 970 (1982) (new trial awarded where defendant’s voluntary statement should have been suppressed where he was arraigned six hours and two minutes after his arrest); Commonwealth v. Blady, 492 Pa. 285, 424 A.2d 864 (1980) (trial court’s suppression of confession affirmed where the defendant arraigned six hours and ten minutes after his arrest).

Thus, the law evolved from the three-pronged test enunciated in Futch to the fixed time-table adopted in Davenport; nevertheless, the objective of our Supreme Court remained the same, i.e., to discourage the obtaining of incriminating information through coercive means. Commonwealth v. Jenkins, 500 Pa. 144, 454 A.2d 1004 (1982). Likewise, one cannot discount some of the other objectives sought to be achieved by the implementation of a prompt arraignment following arrest, e.g., citizen’s right to know the nature of the charges against him and to receive an immediate and reasonable opportunity to regain his freedom by the posting of bail. Commonwealth v. McGeachy, 487 Pa. 25, 28, 407 A.2d 1300, 1301 (1979).

We cannot dispute nor do we condone the defendant’s confinement in the county jail without the benefit of an arraignment “or without judicial process or commitment papers of any type whatsoever.” (Defendant’s Brief at 6) The mere fact that the accused may have been obstreperous and unwilling to secure transportation did not require his incarceration. He could have been driven the one-half-mile distance to his home, as ultimately occurred approximately three hours after his arrest and one-and-a-half-hours following incarceration, by the State Police.

Despite the restraint of the defendant’s liberty, we do not equate it, under the particular circumstances here, with the type of conduct sought to be purged from the judicial system by our Supreme Court’s exclusionary rule under either Davenport or Futch to accomplish the goal of a prompt arraignment.

Parenthetically, we note that if the police had opted to retain the defendant behind bars, even beyond the six-hour limit, while they were attempting to locate a judicial officer the case would probably have fallen within the “exigent circumstances” dispensation referred to in footnote 7 in Davenport. Commonwealth v. Jenkins, supra; Commonwealth v. Devan, 338 Pa.Super. 95, 487 A.2d 869 (1985); Commonwealth v. Ryles, 274 Pa.Super. 547, 418 A.2d 542 (1980).

More to the point, however, we find the release of the defendant, well within six hours of his arrest, to be no violation of Davenport or Rule 130, and his restraint can be said to be no more than an error in judgment by the authorities not warranting the harsh consequences attendant to suppression of the evidence. As our Supreme Court stated in a similar context:

... the course chosen by the Commonwealth in this case did more to achieve the objectives of the rule than attempting to rely upon the ability to establish exigent circumstances for the failure to observe the rule. In this case the complete release of the defendant within the six-hour period accomplished the purposes sought to be achieved by the requirement of a prompt arraignment. The fact that the authorities elected to take this course of action to avoid the consequences of a violation of the prompt arraignment rule does not require the condemnation of the procedure where the purposes sought to be achieved by the rule were in fact accomplished. In view of the Commonwealth's inability, through no fault of its own, to comply with the strict letter of the rule we are satisfied that the alternative chosen here was a reasonable one and that no purpose would be served by applying the evidentiary bar in this case.
Accordingly, the Order of the Suppression Court is reversed and the cause remanded for trial.

Commonwealth v. Jenkins, supra, 500 Pa. at 149-52 & n. 4, 454 A.2d at 1007-08 & n. 4.

As in Jenkins, the defendant’s release, albeit here delayed somewhat by a stint in jail for one-and-a-half-hours, was prompted by the inability to locate a judicial officer to conduct an arraignment. See Commonwealth’s Memorandum Of Law at 2, wherein it is written that: “Defendant was incarcerated for a short period of time and then released upon the execution of an after-hours misdemeanor form, pursuant to Pa.R.Cr.P. No. 130.”

The Comment to Rule 130 gives guidance as to what course to pursue where a defendant has been arrested without a warrant for driving while intoxicated. It recommends one’s release from custody when an officer deems it appropriate, rather than presentment before a magistrate for arraignment. Some factors which can be taken into account to decide if release from custody is appropriate are: 1) whether the defendant resides in the community; and 2) whether he can safely be released without danger to himself or others. However, the Comment makes no mention, nor is it anywhere written — except as a courtesy offered by police which has developed over the years, as to who should drive the defendant home when, as here, he lives a short distance away from the barracks.

As referred to earlier, there is no indication from the record that the defendant was inhibited in any way from seeking a means home separate from that provided for, later, by the State Police. Thus, the defendant was ostensibly offered, at least from our reading of the record, the opportunity to leave the barracks. He, apparently, chose not to do so by obtaining transportation, be it public or private, to make his way home. This is evidenced by the fact that the State Police had to provide him with a means home later in the evening — he could not drive his own vehicle since he was cited for driving while intoxicated.

Suffice it to say, from our review of the facts and the applicable case law, the actions of the suppression court were improper. Accordingly, we reverse the order entered below and remand for a continuation of the case through the judicial process. Jurisdiction is not retained.

       We assume that police officials were satisfied that the temporary release of this appellee did not pose a danger to the community and that there was no serious threat of his availability for the service of future process.


author: HESTER, Judge:

text:
    512 A.2d 707
    Carl N. HESIDENZ, Appellant, v. Alice M. CARBIN. Annette Lisa HESIDENZ v. Alice Marie CARBIN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1986.
    Filed July 15, 1986.

      Bruno A. Muscatello, Butler, for appellant in No. 1249 and appellee in No. 79.
    Armand R. Cingolani, Jr., Butler, for appellant in No. 79 and appellee in No. 1249.
    Before BROSKY, MONTGOMERY and HESTER, JJ.
   HESTER, Judge:

In this appeal, a father is seeking child support from his former wife, the mother of his two children. The mother has remarried and has given birth to two children by her present husband. We are asked 'to review her support obligations to her older children in light of her responsibilities to her younger children and in light of her physical condition.

The procedural history of the two appeals before us is rather detailed and, of course, interwoven. However, the salient facts relevant to these appeals are as follows. The father, appellant at No. 01249 Pittsburgh, 1982, and the mother, appellant at No. 00079 Pittsburgh, 1985, were married and had two daughters, Annette, born August 30, 1964, and Diana, born September 21, 1969. The parties were divorced on February 26, 1971. After the divorce, the mother retained custody of the children until some time in 1981, at which time custody was transferred to the father. Thereafter, the father filed for support.

The original order of support, dated June 22, 1981, required the mother to pay $190.00 per month for both children. At that time, the mother was employed as a full-time registered nurse. However, following the birth of her first child to her present husband, she decreased her work load to a part-time basis. In view of her diminished wages, the mother petitioned the court for a reduction in the support order. On June 25, 1982, the original support order was reduced to $80.00 per month for both children. The father’s exceptions to that order were dismissed and the appeal at No. 1249 Pittsburgh, 1982, followed.

On December 21, 1983, the mother gave birth to another child by her present husband. At that time, she was forty years old and began to experience chest pains and other problems associated with coronary artery disease. She had resigned her job in anticipation of the birth of her child and thereafter did not return to work.

Six months later, Annette Lisa Hesidenz filed a petition for support for her college education against her mother. On July 23, 1984, the mother was ordered to pay $25 per week for the support of Annette from September 1 to May 31 of each succeeding year.

Since she had no income, the mother filed an appeal and a demand for a hearing with the lower court. Following a hearing on December 13, 1984, the court found that the mother was unable to return to her duties as a nurse and the orders of support for $80.00 per month and for $25.00 per week for college support for Annette were to be “held in abeyance” until the mother was medically capable of returning to work.

Appeal No. 01249 PGH 82

In this appeal, father-appellant argues that the trial court erred in reducing wife-appellee’s support obligation. First, he contends that the court erred in only considering appel-lee’s part-time wages instead of her earning capacity. Second, appellant argues that support in the sum of $80.00 per month for both children is unreasonable in light of appel-lee’s income of $670.00 per month.

In reviewing support orders, we are mindful of the narrow scope of our review.

[A]bsent a clear abuse of discretion, we will defer to the order of the lower court____ “A finding of abuse is not lightly made but only upon a showing of clear and convincing evidence____” “[I]f, in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.”

Butler v. Butler, 339 Pa.Super. 312, 315, 488 A.2d 1141, 1142 (1985), quoting Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 38-9, 457 A.2d 98, 101-02 (1983) (citations omitted.) (footnote deleted).

A parent’s ability to pay child support must be determined as of the time at which the support payments are sought. Butler v. Butler, supra. In evaluating a parent’s ability to pay support, various factors must be considered, including the parent’s financial resources and earning capacity. Commonwealth ex rel Cochran v. Cochran, 339 Pa.Super. 602, 489 A.2d 804 (1985). Generally, a parent has an obligation of support measured not by actual earnings, but rather by earning capacity. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). However, an exception to that rule had been carved out by this court in Commonwealth ex. rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977). Therein, we held that earning capacity cannot always be imputed to a parent who chooses to stay home with a minor child. In appropriate cases, such a nurturing parent may be excused from contributing support payments. A trial court, so holding, must consider the age and maturity of the child, the availability of others who might assist the parent, the adequacy of available financial resources if the parent remains at home, and finally, the parent’s desire to stay home and nurture the minor child. Id., 251 Pa.Superior Ct. at 113-14, 380 A.2d at 412. This exception is known as the nurturing parent doctrine, and obviously was followed by the trial court, since reference was made to appellee’s desire to remain at home with her six-month-old.

In reducing appellee’s support obligations, the court noted that appellee had returned to work part-time because she was suffering from physical ailments primarily as a result of her pregnancy and also because she desired to care for her then six-month-old child. Appellant challenges the court’s findings as lacking support in the record. Specifically, he asserts that no medical evidence was submitted to sustain the court’s conclusion that appellee was physically incapable of returning to work full-time.

Appellant’s first point has no merit. The court concluded that appellee was physically unable to work full time based upon her testimony that she suffered from hypertension, dizziness, and severe hemorrhoids. Appellee’s physical problems were exacerbated by the birth of a child at age thirty-nine. Moreover, the court considered the fact that appellee was nursing her infant daughter and felt a need to care for her child as allowed by a part-time work schedule. We find sufficient evidence to uphold the court’s conclusion that appellee was physically unable to work full-time.

Appellant next argues that the trial court failed to utter the phrase “nurturing parent doctrine” and that the record is devoid of evidence sufficient for us to sustain a finding pursuant to that doctrine. We must disagree. The trial court was not required to refer specifically to this doctrine in order to sanction appellee’s desire to work part-time and still nurture her child. To impose such a requirement would evaluate form over substance; this we will not do. Additionally, we find the record to be replete with testimony to support the application of this doctrine.

Appellee was nursing her child three times a day; the baby was still an infant and would obviously benefit from significant contact with her mother; and finally, appellee was making sufficient income to provide the necessities for his daughters. Thus, with the exception that the record was silent as to the availability of others who might assist appellee in caring for her child, we conclude that there was sufficient evidence for the trial court to determine that appellee’s support obligations should be based upon her actual income and not her earning capacity.

Finally, this court has always held that a parent who becomes ill or disabled cannot be expected to contribute according to his or her previous earning capacity. Rather, a parent's financial resources must be computed based upon the parent’s actual earnings. Butler v. Butler, supra 339 Pa.Super. at 316 n. 2, 488 A.2d at 1142 n. 2. Appellee’s testimony concerning her physical ailments, in conjunction with the recent birth of her child provided a sound basis for the reduction in her support obligation. We discern no element of bad faith in her desire to reduce her work load, Commonwealth ex rel. Schofield v. Schofield, 173 Pa.Super. 631, 98 A.2d 437 (1953); and we find no evidence that the judgment exercised by the trial court was manifestly unreasonable. We believe that the evidence proffered at trial established a substantial change in appellee’s circumstances so as to warrant a modification of the earlier support order. Chrzanowski v. Chrzanowski 325 Pa.Super. 298, 472 A.2d 1128 (1984).

Appellant’s second prong of attack centers on the amount which the trial court ordered appellee to pay, $80 per month for two children. He contends that such an order is simply insufficient in light of appellee’s take-home pay of $670 per month.

In fashioning an award of support, the court must reach a result which is fair, non-confiscatory and attendant to the circumstances of the parties. Straub v. Tyahla, 274 Pa.Super. 411, 418 A.2d 472 (1980). Herein, appellant testified that his annual income exceeded $30,000. From his earnings, appellant has managed to save approximately $20,000 for his daughters’ educations. In light of his financial resources, and in view of appellee’s expenses, which total $600 per month, we find no abuse of discretion.

Appeal No. 00079 Pgh. 1985

This appeal is from the order entered on December 13, 1984, in which the trial court upheld its July 23, 1984, order requiring the mother to pay $25 per week for the support of Annette Hesidenz from September 1 to May 31 during her college years. At the same time, the court upheld the support order of June 25, 1982, but directed both orders to be “held in abeyance” until the mother was medically capable of returning to work. The mother, appellant herein, thereafter filed this appeal.

As stated previously, appellant gave birth to another child to her present husband on December 21, 1983. She resigned her part-time position in November, 1983, and thereafter remained at home with her two young children. At the same time, appellant began to experience symptoms of coronary artery disease.

In this appeal, appellant contends that the court erred in affirming the order of June 25, 1982, and July 23, 1984, and asserts that these orders should have been terminated until such time as she returns to work. Otherwise, the affirmance of these orders amounts to a predetermination of the amount of child support and college expense support which appellant must pay when she returns to work, regardless of the amount that she might be earning at that time. We agree and reverse the order insofar as it reaffirmed the orders in question.

Order of June 25, 1982

At the hearing on December 13, 1984, appellant testified that she had given birth to her second child to her present husband on December 21, 1983, and presented evidence, through the deposition of Dr. Ernest Moore, that she was suffering from symptoms of coronary artery disease. The combination of these factors led to appellant’s decision to terminate her part-time employment. Based upon these facts, appellant sought relief from the order of June 25, 1982, requiring her to pay $80 per month in support.

A support order may be modified upon a showing of substantial change of circumstances. Jaskiewicz v. Jaskiewicz, 325 Pa.Super. 507, 473 A.2d 183 (1984). When the financial circumstances of parties change, a support order may be increased or decreased. Commonwealth v. Vogelsong, 311 Pa.Super. 507, 457 A.2d 1297 (1983); Dunbar v. Dunbar, 291 Pa.Super. 224, 435 A.2d 879 (1981).

Herein, appellant produced sufficient evidence to demonstrate a substantial change of circumstances. Her deteriorating health and the birth of her daughter at the age of forty established adequate evidence of a material change in circumstances. Appellant’s decision to leave her part-time employment was substantiated by her physician’s recommendation.

Since she had had no income from November 23,1983, the order of June 25, 1982 should have been terminated. The trial court’s decision to hold this order in abeyance until such time as appellant becomes gainfully employed was a misapplication of the law and constituted an abuse of discretion. To allow that order to remain standing, then to be revived if and when appellant becomes employed, directly conflicts with that line of cases holding that a parent’s ability to pay support must be determined at the time support payments are sought. See Butler v. Butler, supra. Accordingly, we vacate the order of June 25, 1982, as of August 15, 1984, when appellant petitioned for relief from that order. The order of December 13, 1984, is affirmed insofar as it directs appellant to report every six months to apprise the court of her medical condition and employment capabilities.

Order of July 23, 1984

The order of July 23, 1984, imposed an obligation on appellant to contribute $25 per week to her daughter, Annette, during the academic year for her college education. This order was similarly held in abeyance. This order we simply vacate. At the time this order was entered, appellant had not worked for over nine months. As stated previously, appellant remained unemployed because of health considerations and to care for her young children by her present husband.

A parent’s duty to provide support for a child’s college education is enforceable only if the parent has sufficient estate, earning capacity or income to enable him or her to do so without undue hardship. Commonwealth ex rel. Cochran v. Cochran, supra; Commonwealth ex rel Leider v. Leider, 335 Pa.Super. 249, 484 A.2d 117 (1984).

As we have previously concluded, appellant’s earning capacity is not the proper yardstick by which to measure her ability to contribute support. Clearly, considering appellant’s unemployed status, it would impose a significant hardship on her to contribute support for her daughter’s college education, particularly in light of appellee’s savings earmarked for that purpose. Order reversed.

Order of December 13, 1984, affirming the order of June 25, 1982, reversed and said order of June 25, 1982, vacated as of August 15, 1984. Order of December 13, 1984, affirming order of July 23, 1984, reversed and said order of July 23, 1984, vacated. Order of December 13, 1984, affirmed insofar as it directs appellant to report to the Domestic Relations Office concerning her physical condition and employment capability.

      . We have consolidated Appeal No. 01249 Pittsburgh, 1982 with Appeal No. 00079 Pittsburgh, 1985 for purposes of judicial economy. Both appeals involve the same parties and challenge support orders entered by the court below for the parties’ two children.

      . Annette also filed a support action against her father, but later withdrew that petition and proceeded solely against her mother.

      . The lower court had jurisdiction to suspend payment on the support order of June 25, 1982, because on August 2, 1984, the Superior Court granted the mother's petition for a partial remand in order to permit her to petition for relief from the existing support order. Said petition was thus considered by the trial court in its hearing of December 13, 1984.

      . Although in Wasiolik, the custodial parent desired to remain at home with the child for whom support was sought, we have held that the fact that the child to be nurtured is not the subject of the support order does not necessarily remove the case from the application of the ‘nurturing parent’ doctrine. Klein v. Sarubin, 324 Pa.Super. 363, 471 A.2d 881 (1984), Bender v. Bender, 297 Pa.Super. 461, 444 A.2d 124 (1982).

      . Appellant testified at the hearing on October 5, 1985, that he earns $27,535 per year plus $2,761 in interest income, for a total of $30,296.


text:
    512 A.2d 713
    William and Lilly COOLEY, Appellants, v. JEFFERSON BANK and Garrison Express Company, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued May 29, 1986.
    Filed July 22, 1986.

      David F. Binder, Philadelphia, for appellants.
    Catherine N. Jasons, Philadelphia, for appellees.
    Before WIEAND, BECK and JOHNSON, JJ.
   WIEAND, Judge:

On November 21, 1979, Lilly Cooley stumbled over a satchel which had been allowed to remain on the floor of the lobby of the Jefferson Bank in Philadelphia. She grabbed a counter to maintain her balance and aggravated the preexisting, degenerative arthritis in her shoulder. A jury found that Mrs. Cooley had been 30% negligent and the Bank 70% negligent. Damages, the jury determined, were in the amount of $48,500. On appeal from the judgment entered on the verdict, Mrs. Cooley contends: (1) that the trial court erred when it refused to instruct the jury on “momentary forgetfulness”; (2) that the trial court erred in failing to instruct the jury that the Bank had to take the plaintiff as it found her; and (3) that the verdict was inadequate. Our review discloses neither trial error nor an inadequate verdict. Therefore, we affirm the judgment.

The doctrine of “momentary forgetfulness” was articulated in Weitz v. Baurkot, 267 Pa.Super. 471, 406 A.2d 1138 (1979). The plaintiff in Weitz, while distracted by events around her, stepped into a hole in the floor of the office where she worked and about which she had previously complained. We held that her forgetfulness or inattention could be excused if the circumstances were such that a person of ordinary prudence, so situated, might have forgotten.

In the instant case, however, Mrs. Cooley had not been aware of the presence of the satchel before she stumbled over it. The satchel was not an impediment about which she had known but momentarily forgotten. Moreover, there was no evidence to suggest an external distraction. Therefore, the issue for the jury to determine was whether appellant’s failure to observe and avoid the satchel on the floor when she turned around to leave the bank was brought about by her own failure to exercise reasonable vigilance and care. This issue was properly submitted to the jury on adequate instructions by the trial court.

Similarly, the jury was adequately instructed regarding the aggravation of appellant’s pre-existing, arthritic condition. “A trial judge has wide latitude in charging the jury, and may use any particular language provided the language used adequately and fully conveys to the jury the law applicable to the facts of the case.” Kearns v. Clark, 343 Pa.Super. 30, 37, 493 A.2d 1358, 1361 (1985), quoting Fish v. Gosnell, 316 Pa.Super. 565, 580, 463 A.2d 1042, 1050 (1983). There was neither inadequacy nor inaccuracy in the instructions of the trial court pertaining to the aggravation of Mrs. Cooley’s prior condition.

“[The] duty of assessing damages is within the province of the fact-finder and should not be interfered with unless it clearly appears that the amount awarded resulted from partiality, caprice, prejudice, corruption or some other improper influence.” Lokay v. Lehigh Valley Coop. Farmers, Inc., 342 Pa.Super. 89, 99, 492 A.2d 405, 410 (1985), quoting Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 117, 464 A.2d 1243, 1257 (1983). “Generally, a verdict will not be disturbed merely on account of the smallness of the damages awarded or because the reviewing court would have awarded more.” Morris v. Peckyno, 202 Pa.Super. 490, 492, 198 A.2d 396, 397 (1964), quoting 15 Am.Jur., Damages § 231. “ ‘[T]o support the granting of a new trial for inadequacy, “the injustice of the verdict should stand forth like a beacon.” So long as the verdict bears a reasonable resemblance to the damages proved, it is not the function of the court to substitute its judgment for that of the jury. Elza v. Chovan, [396 Pa. 112, 118, 152 A.2d 238, 240 (1959)]; Morris v. Peckyno, 202 Pa.Superior Ct. 490, 492, 198 A.2d 396[, 397] (1964).’ ” Dougherty v. Sadsbury Township, 299 Pa.Super. 357, 359, 445 A.2d 793, 794 (1982), quoting Rutter v. Morris, 212 Pa.Super. 466, 469-470, 243 A.2d 140, 142 (1968). Moreover, “[t]he grant of a new trial because of inadequacy of the verdict is a matter peculiarly within the competence of the trial court, and its discretion is considerable. Its action, therefore, will not be disturbed on appeal except where there has been a clear abuse of discretion.” Dougherty v. Sadsbury Township, supra 299 Pa. Super, at 360, 445 A.2d at 795, citing Wilson v. Nelson, 437 Pa. 254, 256, 258 A.2d 657, 658-659 (1969); Hose v. Hake, 412 Pa. 10, 14, 192 A.2d 339, 341 (1963); Elza v. Chovan, 396 Pa. 112, 118, 152 A.2d 238, 240 (1959).

In the instant case, Mrs. Cooley was sixty-one years of age and unemployed at the time of the accident. It was not until after the accident that she went to work as a part time real estate salesperson. Although the evidence suggested that her fall had aggravated a pre-existing arthritic condition, the treatment following the fall had been conservative. Mrs. Cooley had not been hospitalized and had not undergone surgery. At trial, she proved no medical expenses. Although medical testimony showed the possibility of future surgery, the cost of which was estimated to be $12,000 to $13,000, Mrs. Cooley had evidenced a pre-trial reluctance to submit to such surgery. Indeed, she had refused to undergo such surgery prior to trial. .The trial court concluded that a verdict of $48,500 was not so inadequate as to require a new trial. Our own examination of the record does not suggest that the trial judge abused his discretion in reaching this conclusion.

Judgment affirmed.

      . At the time of trial, she was sixty-six years of age.


text:
    512 A.2d 715
    Clemente PASCARELLA, Appellant, v. Mary A. PASCARELLA, Appellee.
    Superior Court of Pennsylvania.
    Argued May 7, 1986.
    Filed July 24, 1986.

      Frank M. D’Amore, Philadelphia, for appellant.
    Irving Pollack, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

In this appeal from an order granting a father limited, partial custody of his minor daughters, the father contends that the trial court abused its discretion and committed an error of law when it took into consideration his homosexual relationship with a male roommate. We disagree and affirm the trial court’s order.

Clemente Pascarella and Mary Pascarella, husband and wife, were separated on March 17, 1984, when Clemente left the marital home to pursue a homosexual relationship with Anthony Capone. On June 15, 1984, Clemente instituted an action seeking partial custody of his minor daughters, Nicole and Victoria, aged five and two respectively. The trial court, on October 5, 1984, entered a temporary order allowing the father two hour visits with his daughters at the family court nursery on alternating Sundays. After a hearing on June 18, 1985, at which it appeared that the mother had been allowing the girls to visit their paternal grandparents on alternating weekends, the court vacated its earlier order and entered an interim order permitting the father to visit his daughters at his parents’ home. On July 10, 1985, the hearing court entered a final order awarding primary and partial custody as follows:

ORDER
Custody of the children Nicole and Victoria shall be in their mother, Mary A. Pascarella.
Father, Clemente Pascarella, shall have partial custody with his children on alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m beginning July 19, 1985. This partial custody shall take place at the residence of the father’s parents, Marco and Josephine Pascarella; however, these periods shall not be restricted to the grandparents’ residence only. Father may spend time with his children outside of their residence to engage in reasonable activities and events with his children so long as it is not in the presence or company of Anthony Capone.
However, the father may not have overnight custody of his children outside of the residence of their paternal grandparents and in no event shall any custody period with the children take place in the presence of Anthony Capone.
Father shall also have a one week period of custody during the summer with preference given to his vacation schedule so as to coincide therewith and under the same conditions and restrictions set forth herein.
The father shall also have custody at any other times that the parties may mutually agree but as herein restricted and he shall have telephone access to his children at all reasonable times and hours.

From this order the father appealed.

Appellant father argues that the trial court erred (1) by concluding that his homosexuality was a relevant consideration and (2) by presuming that to allow his daughters to visit in his home where he was openly engaged in a homosexual relationship with a male lover would be emotionally disturbing to the children. He also contends that the trial court should not have entered a final order without requiring testimony from disinterested witnesses such as psychologists or social workers.

This Court recently had occasion to consider the effect of a parent’s homosexuality on custody issues in Constant A. v. Paul C.A., 344 Pa.Super. 49, 496 A.2d 1 (1985), allocatur granted. There the mother, living openly in a lesbian relationship, had attempted to gain an expansion of shared custody rights to her two children. She contended that the existence of a homosexual relationship should not be considered in a custody determination. Rejecting this argument, the Court held that while “homosexuality per se is not a basis for denying visitation or partial custody to a parent, we do not consider it irrelevant. ... [I]t is a relevant consideration in every custody case to scrutinize the illicit relationship, whether heterosexual or homosexual.” Id., 344 Pa.Superior Ct. at 66, 496 A.2d at 9-10. Moreover, the Court said, “there are sufficient social, moral and legal distinctions between the traditional heterosexual family relationship and illicit homosexual relationship to raise the presumption of regularity in favor of the licit, when established, shifting to the illicit, the burden of disproving detriment to the children.” Id., 344 Pa.Superior Ct. at 66, 496 A.2d at 10.

The hearing court in the instant case could properly consider the father’s homosexual lifestyle when formulating an order awarding partial custody to the father. The court concluded that the two girls “are innocent and impressionable and do not know of nor could they even begin to understand the homosexual relationship of their father. It is inconceivable that they could go into that environment, be exposed to this relationship and not suffer some emotional disturbance, perhaps severe.” Trial court opinion at 3. The effect of the father’s living openly in a homosexual relationship was a relevant fact, and its effect on the emotional well-being of the children necessarily had to be considered if their best interests were to be served. Indeed, according to the holding of Constant A. v. Paul C.A., supra, the burden was upon the father to show that there would be no adverse effect upon the children if they were exposed to his lifestyle and the relationship which he shared openly with his male roommate. The hearing court did not err by limiting appellant’s partial custody to times and places where the children would not be introduced to their father’s homosexual lifestyle.

The appellant father also challenges the hearing court’s order on grounds that the court failed to require testimony from disinterested witnesses. He argues that the hearing court could only conduct a penetrating and comprehensive inquiry by requiring objective testimony from disinterested, impartial witnesses, such as psychiatrists, psychologists or social workers. Because the only testimony before the hearing court was that of the parties, the father’s lover, the paternal grandparents, the mother’s sister-in-law and the maternal grandmother, appellant argues that the matter should be remanded for additional evidence.

“The requirement for disinterested testimony is a requirement designed to insure that the interests of the children whose custody is at issue are not totally submerged. ... [T]he determination of the necessity of disinterested, or independent testimony should be left to the sound discretion of the trial court. ...” Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 235, 478 A.2d 800, 805 (1984). An appellate court will not reverse the trial court’s determination unless the proceedings between the parents were so bitter that the children’s interests were not accorded adequate weight. Id. In this case there is no basis for concluding that the interests of Nicole and Victoria were submerged or inadequately addressed by the hearing court. There is no need to remand for the taking of additional, disinterested testimony.

Finally, appellant objects to the trial court’s findings (1) that he had sought visitation so that his boyfriend could become familiar with the girls and (2) that he had only visited the girls three times at his parents’ home. Appellant’s first objection is not well taken. There was evidence of a statement made by him that he wanted visitation so that his boyfriend could get to know the girls. Similarly, the record of the hearing on June 18, 1985 suggests that after appellant learned that his children were visiting his parents he arranged to visit with them at his parents’ home on three occasions. Although appellant had visited his daughters more than three times under the court’s temporary order of October 5, 1984, this fact alone does not require a remand for reconsideration. The trial judge’s final order of limited, partial custody was based upon his perception of the best interests of the children, and we are unable to find therein an abuse of discretion.

Order affirmed.

      . Appellant failed to comply with an order entered pursuant to Pa.R. App.P. 1925 and directing him to file a concise statement of matters complained of on appeal. Nevertheless, the hearing judge was able to and did prepare a memorandum opinion, and this Court can conduct meaningful review. Therefore, we will consider the issues which appellant has argued on appeal. See: Commonwealth v. Mathis, 317 Pa.Super. 362, 367-368, 464 A.2d 362, 365 (1983). See also: Commonwealth v. Silver, 499 Pa. 228, 238, 452 A.2d 1328, 1333 (1982); Commonwealth v. Satchell, 306 Pa.Super. 364, 370, 452 A.2d 768, 771 (1982).


author: ROWLEY, Judge:

text:
    512 A.2d 718
    COMMONWEALTH of Pennsylvania v. Michael Dorsey HOOK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1986.
    Filed July 21, 1986.

      Jerry L. Spangler, Assistant Public Defender, Somerset, for appellant.
    David J. Flower, Assistant District Attorney, Somerset, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and TAMILIA, JJ.
   ROWLEY, Judge:

This is a direct appeal from Judgments of sentence totaling 8 1/2 to 15 years imprisonment imposed following appellant’s conviction by a jury on two counts of kidnapping and one count of attempted rape. Appellant’s primary argument on appeal is that the evidence is insufficient to sustain his kidnapping convictions because the Commonwealth failed to prove that he “unlawfully confine[d] another for a substantial period in a place of isolation. ...” 18 Pa.C.S. § 2901(a). Because we agree that the evidence is insufficient to establish that appellant confined his victims in a place of isolation, we vacate the judgments of sentence imposed on his kidnapping convictions.

A review of the evidence in a light most favorable to the Commonwealth, as the verdict winner, Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1230-31 (1984), reveals the following. On April 19, 1984, at approximately 6:00 p.m., Doris Pyle called a local dry cleaner and asked them to pick up her coat for cleaning. Ms. Pyle resided in an apartment located above a clothing store in Somerset Borough, Somerset County. Within five minutes she heard footsteps in the hallway. She opened the door expecting to find someone from the dry cleaning store; instead, she encountered appellant who forced his way into her apartment. When Ms. Pyle asked appellant what he wanted, he replied, “ ‘I’m going to ‘F’ you.’ ” N.T. 24. He then placed his hand over her mouth and told her to be quiet. After a brief struggle, Ms. Pyle escaped from appellant’s grasp and exited her apartment through a door that opened into a hallway. She entered the apartment of an elderly neighbor, Thelma Maust, who was in her bedroom at the time. Appellant followed Ms. Pyle into the other apartment and discovered both women in Mrs. Maust’s bedroom. Appellant repeated his earlier statement and threw both women on to Mrs. Maust’s bed. He then struck Mrs. Maust in the face and choked Ms. Pyle when she warned that if he did not leave she would call the police. Appellant began to disrobe Ms. Pyle; he also kissed her and grabbed her breasts. Before he could proceed further, appellant passed out, presumably as a result of his intoxication. The women fled from the bedroom and Mrs. Maust ran downstairs to the clothing store where the employees called the police. The police arrived and discovered appellant, unconscious, in Mrs. Maust’s bedroom. The events lasted a little more than one hour.

Appellant argues that the evidence is insufficient because the victims were confined for only one hour in their apartments which were readily accessible to relatives and were located above an open business. Appellant, drawing from language appearing in Commonwealth v. Hughes, 264 Pa. Super. 118, 399 A.2d 694 (1979) and the commentary to the Model Penal Code, also maintains that any confinement or movement of the victims during the commission of another crime (here, attempted rape) was incidental and did not substantially increase the risk of harm to the victims. The trial court did not address the issue even though appellant raised it both in his demurrer and in post-verdict motions.

In drafting the portion of the kidnapping statute at issue, the authors of the Model Penal Code sought to proscribe conduct that did not involve the movement of the victim.

The Section defines kidnapping to include certain cases where the victim is not moved at all. These are cases where the victim is held in a place of isolation for a sustantial period. Thus, a man might be seized in his own summer home in the mountains and held there for ransom. Conceivably one’s own apartment in a city might in rare cases be regarded as a “place of isolation,” if detention is under circumstances which make discovery or rescue unlikely. Confinement in a place of isolation is required to be for a substantial period in order to avoid application of the kidnapping law to detentions merely incidental to rape and other crimes of violence.

Model Penal Code § 212.1, Comment (TentDraft No. 11, p. 16, 1960) (footnote omitted). The authors of the Code also drafted the statute restrictively to prevent its use for obtaining a higher permissiblé sentence where the detention of the victim was incidental to the commission of another crime.

[T]he direction of the criminal law has been to limit the scope of the kidnapping statute, with its very substantially more severe penal consequences, to true kidnapping situations and not to apply it to crimes which are essentially robbery, rape or assault and in which some confinement or asportation occurs as a subsidiary incident.

S. Toll, Pennsylvania Crimes Code Annotated 341 (1974); Commonwealth v. Hughes, supra.

We must reject appellant’s claim that one hour is insufficient to prove his guilt. We find that the evidence was sufficient to permit the jury to decide whether the Commonwealth met its burden of proving that the victims were confined for a “substantial period.” We agree, however, with appellant’s contention that the evidence was not sufficient for the jury to find that he confined the victims “in a place of isolation.”

The victims resided in two, separate apartments on the second floor of their building. A third apartment, located on the same floor, was also occupied. The first floor housed a clothing store that was open for business when the crime occurred. It was to this store that Mrs. Maust went for help. Entrance to the stairway that led to the apartments was through a door which adjoined the door to the clothing store. On the day of the incident, Mrs. Maust had been visited in her apartment by her relatives. Ms. Pyle’s phone call to the dry cleaners, and appellant’s presence outside her apartment, make clear that there was open access to the area. Also, the Somerset Borough Police arrived at the scene three minutes after receiving the phone call from the clothing store.

Under the circumstances of the present case, we conclude that the evidence was insufficient to permit the jury to consider whether appellant had confined the victims in a place of isolation. Rather, the record reveals that the victims’ apartments were frequented both by relatives and by business contacts. An open business was located directly beneath the apartments. An employee from the dry cleaning store was expected momentarily to pick up Ms. Pyle’s coat for cleaning. Thus, the record does not indicate that the victims were confined in a manner that made discovery or rescue unlikely. It also appears that any confinement appellant imposed on the victims was incidental to his attempt to rape at least one of the victims. Accordingly, we vacate the Judgments of sentence imposed on the kidnapping counts and discharge appellant on those counts.

Because we cannot determine from our review of the record whether the declared invalidity of the kidnapping convictions would have affected the trial court’s sentencing on the attempted rape conviction, we must remand the matter to the trial court in order to provide it with the opportunity to reconsider its sentence on the attempted rape conviction. See Commonwealth v. Rhodes, 332 Pa.Super. 273, 279, 481 A.2d 610, 613 (1984), rev’d on other grounds, 510 Pa. 537, 510 A.2d 1217 (1986); Commonwealth v. Conrad, 285 Pa.Super. 571, 578, 428 A.2d 192, 196 (1981); Commonwealth v. Lezinsky, 264 Pa.Super. 476, 480, 400 A.2d 184, 186 (1979); cf. Pennsylvania v. Goldhammer, — U.S. —, 106 S.Ct. 353, 88 L.Ed.2d 183 (per curiam) (Double Jeopardy Clause of Fifth Amendment of U.S. Constitution did not bar resentencing defendant on counts affirmed on appeal by Commonwealth when sentence on another count was vacated and dismissed), rev’g and remanding, Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985).

The Judgments of Sentence for two counts of kidnapping are vacated and appellant is discharged. The Judgment of Sentence for attempted rape is vacated. The case is remanded for resentencing on the charge of attempted rape. Jurisdiction is relinquished.

      . Appellant was charged with one count of kidnapping as to each victim.

      . The trial court merged appellant's simple assault and indecent assault convictions into the attempted rape conviction for sentencing.

      . As to appellant’s six remaining issues, we have reviewed the record and have accorded due consideration to them. To the extent that issue VII has not been rendered moot by our disposition of the first issue, Judge Schaulis, in his opinion of September 12, 1985, has adequately discussed and properly disposed of the issue. The remaining issues are either without merit or have been rendered moot by our disposition of the first issue.

      . Thus the present issue is distinguishable from the one raised in Commonwealth v. Campbell, 353 Pa.Super. 178, 509 A.2d 394 (1986) in which this Court interpreted the "substantial distance” language of the kidnapping statute.


author: DEL SOLE, Judge:

text:
    512 A.2d 721
    John RULLI, Appellant, v. Daniel T. DUNN, Warren L. Shaffer and Pennsylvania State Police and Jay Cochran, Jr., and Michael Gavitt, Appellees.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed July 23, 1986.
    Louis P. Vitti, Pittsburgh, for appellant.
    Eugene G. Berry, Pittsburgh, for appellees.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

The Plaintiff filed an action in trespass against the Pennsylvania State Police and the named defendants who were acting in their official capacity as members of that state agency.

Subsequently, preliminary objections to the plaintiff's complaint were sustained and the complaint dismissed.

The plaintiff thereupon filed an appeal to the Superior Court of Pennsylvania from the dismissal of his complaint.

42 Pa.C.S.A. § 762(a)(1) provides that the Commonwealth Court shall have exclusive jurisdiction of appeals which involve the Commonwealth government including officers thereof who are acting in their official capacity.

The nature and subject matter of this litigation deals with the actions of the officers of the Pennsylvania State Police in their official capacity and the State Police itself. Therefore, this appeal is properly before the Commonwealth Court by virtue of its exclusive jurisdiction in this area and it is hereby transferred to that court for determination.