author: TAMILIA, Judge.

text:
    605 A.2d 811
    COMMONWEALTH of Pennsylvania v. Marisol MARTINEZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 8, 1992.
    Filed Feb. 28, 1992.
    Reargument Denied April 30, 1992.

      David Zuckerman, Philadelphia, for appellant.
    Laurie Magid, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge.

Marisol Martinez takes this appeal from the December 6, 1990 judgment of sentence imposing a $15,000 fine and ordering her incarcerated for three (3) to ten (10) years as a result of having been found guilty, by a jury, of possession with intent to deliver a controlled substance.

On the evening of June 20, 1989, appellant was observed by undercover officers Moffit and Logan walking down a street in a high profile drug area clutching a blue purse under her arm. Appellant was recognized as a neighborhood resident by Moffit, an officer in the neighborhood since 1976. Moffit testified he also recognized appellant as a suspected drug trafficker. As appellant approached the intersection near where the officers were parked she observed a high concentration of uniformed police officers, stationed in this particular part of the city specifically as a deterrent to the extremely high incidence of drug trafficking. Appellant ducked behind a wall and repeatedly peeked around the comer watching the uniformed officers before she continued across the street. Having noticed appellant’s suspicious behavior, Moffit and Logan began following appellant in their unmarked vehicle. When appellant turned and noticed the car following her, she dropped her purse and continued walking. Logan then exited his vehicle and, upon discovering in the discarded purse what he believed to be narcotics, told Moffit to arrest the appellant. From the purse the officers seized $480 and 300 red taped packages which, it was later determined, contained 73.1 grams of cocaine. Appellant was arrested and charged with possession and possession with intent to deliver a controlled substance. After appellant was arraigned and her motion to suppress the evidence was denied on July 11, 1990, the court stated, on the record and in appellant’s presence, jury selection would begin the next day. Appellant failed to appear on July 12, 1990, despite having signed a subpoena agreeing to do so, and the trial continued in absentia while a bench warrant was issued for her arrest. Appellant was subsequently apprehended and, on December 6, 1990, sentence was pronounced.

Appellant argues the court erred by conducting the trial despite her absence and by instructing the jury it could infer guilt by her failure to appear for trial.

The appellant’s first issue is controlled by Pa.R.Crim.P. 1117(a), Presence of the defendant, which states:

(a) The defendant shall be present at the arraignment, at every stage of the trial including the impanelling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule. The defendant's absence without cause shall, not preclude proceeding with the trial including the return of the verdict.

Id. (emphasis added). The trial court found the Court’s interpretation of this rule as set forth in Commonwealth v. Stago, 267 Pa.Super. 90, 406 A.2d 533 (1979), to be controlling. In Stago, the defendant failed to appear in the courtroom until after the judge had posed several voir dire questions to the panel. No jury members were chosen, however, and when the defendant appeared voir dire proceeded. The court found defendant’s unexcused tardiness did not preclude the trial from proceeding in his absence. Commonwealth v. Diehl, 378 Pa. 214, 107 A.2d 543 (1954), held that in a non-capital case, when defendant is out on bail and refuses to be present at a portion of his trial, his absence at any stage of the proceeding may be construed as a voluntary waiver of the right to be present. Commonwealth v. Graham, 248 Pa.Super. 406, 375 A.2d 161 (1977); Commonwealth v. Ah Thank Lee, 389 Pa.Super. 201, 566 A.2d 1205 (1989) (by refusing to return to Pennsylvania, defendant waived his right to be present at hearing to decide post-trial motions and to sentence him). We hold that the above cases are controlling here.

Appellant was arrested on June 20, 1989 and appeared at her preliminary hearing on February 2, 1990. On July 11, 1990, appellant again appeared in court to present her motion to suppress the evidence seized at the time of her arrest. The motion was denied and, in appellant’s presence and on the record, the court stated a jury panel had been reserved and selection would begin the next morning. As stated above, appellant signed a subpoena agreeing to return the next day and received a copy to serve as a reminder. Nevertheless, appellant chose not to appear nor offer a reasonable explanation for her absence. For purposes of when the trial began, triggering section 1117(a), a motion such as a suppression motion to be followed immediately by the impaneling of a jury or taking of testimony by the court must be deemed the commencement of the trial. Commonwealth v. McLaurin, 292 Pa.Super. 392, 437 A.2d 440 (1981). Similarly, hearing on a motion to suppress commences a trial for purposes of Pa.R.Crim.P. 1100, which protects the constitutional right to a speedy trial. See Commonwealth v. Merriwether, 382 Pa.Super. 411, 555 A.2d 906 (1989). Only when there is a lengthy delay between the motion to suppress and the taking of trial testimony and the court had not made a commitment to hear testimony soon after the motion would it not constitute the commencement of trial. Commonwealth v. Griffin, 257 Pa.Super. 153, 390 A.2d 758 (1978).

The effect of this Court allowing appellant to abscond without explanation and to reintroduce herself to the judicial process at her convenience would be to place appellant in command of the legal system. Despite her outward disrespect and disdain for our legal system, appellant would have the opportunity to begin her suit anew and reap the benefits of delay, such as the arresting officers’ unavailability or diminished recollection dulled by the passage of time and the intervening multitude of similar drug-related arrests. To ignore the mandates of Rule 1117 would allow every criminal defendant unhappy with the way his trial was going, particularly failure to prevail in suppressing evidence, and fearing conviction, to take the calculated risk of fleeing with the knowledge that if apprehended, he or she will be afforded another “bite of the apple” and allowed to begin the legal process with a clean slate and the considerable benefits the passage of time would occasion. In addition, our disregard for Rule 1117 would allow, if not encourage, “judge shopping,” whereby a fleeing defendant would enhance the possibility that further delay would provide him with a more lenient judge. This Court cannot condone such a blatant manipulation of our legal system and the obstruction of justice. Based on the facts of this case, we find appellant’s argument the court erred by conducting the trial in absentia is without merit.

Appellant also argues the court erred when it allegedly instructed the jury it could infer guilt by appellant’s failure to appear for trial. Appellant contends the fact she “simply failed to appear for trial,” as opposed to pre-arrest flight or concealment, precludes an instruction on flight, and cites Commonwealth v. Babbs, 346 Pa.Super. 498, 499 A.2d 1111 (1985), in support of this proposition. We find appellant’s reliance on Babbs, which is factually distinguishable from the matter before us, to be misplaced. In Babbs, the flight with regard to which the jury was instructed related to defendant’s failure to appear at a prior continued trial date. The court found this evidence irrelevant in light of the fact defendant had appeared at several prior trial dates, did not flee or conceal himself but was found at his home where he explained his absence was due to a disagreement with his attorney. Here, appellant's flight was relevant. Appellant absconded after trial commenced and her motion to suppress was denied. She was not found at her place of residence and, when apprehended more than a month later on August 20, 1990, failed to offer an excuse for her absence.

In addressing the issue of flight, this Court recently stated:

The rationale for admitting this class of evidence has been explained as follows:
The theory for admitting evidence of flight is “based upon a premise that the person who flees does so in recognition of his wrongdoing and is seeking to avoid punishment for that conduct.” “[E]videnee of the misconduct of a party in connection with the trial is admissible as tending to show that the party guilty of the misconduct is unwilling to rely on the truth of his cause, or is conscious that it is an unjust one.”

Commonwealth v. Barnes, 406 Pa.Super. 58, 593 A.2d 868 (1991), citing L. Packel and A. Poulin, Pennsylvania Evidence, § 423, at 277. Based on the facts surrounding appellant’s disappearance after her trial had commenced and the Commonwealth’s effort to locate her, the court gave the following instruction on flight:

Now, ladies and gentlemen, there was evidence from Officer Moffit which tended to show that the defendant has fled from the police or is hiding from the police or from the authorities at this time. You will recall his testimony concerning going out to the house, I believe yesterday, or the day before, I don’t recall exactly, you will, and trying to locate the defendant. The credibility, weight and effect of this evidence is for you to decide. Generally speaking when a crime has been committed and a person thinks he or she may be accused of committing it, and flees or conceals themselves, such flight or concealment is a circumstance tending to prove the person is conscious of guilt. Such flight or concealment does not necessarily show consciousness of guilt in every case. A person may flee or hide for some other motive and may do so even though innocent. Whether the evidence of flight or concealment in this case should be looked on as tending to prove guilt depends upon the facts and circumstances of this particular case, and especially upon motives which may have prompted the flight or concealment. You may not find the defendant guilty solely on the basis of any evidence of flight or concealment.

(N.T., 7/13/90, pp. 104-105.)

As the trial court stated “failure to instruct the jury on this point could have resulted in prejudice to the defendant, for the jury may have treated the defendant’s flight from trial as ironclad circumstances tending to prove consciousness of guilt.” (Slip Op., Watkins, J., 6/25/91, p. 7.) Based on the circumstances peculiar to this case, we find the court’s instruction on flight to be appropriate and proper.

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a) 30.


source: Caselaw Access Project

author: CAVANAUGH, Judge. WIEAND, Judge,

license: Public Domain

text:
    605 A.2d 814
    COMMONWEALTH of Pennsylvania v. Dorith S. COHEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1992.
    Filed March 30, 1992.

      William G. Cohen, New Castle, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com.
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   CAVANAUGH, Judge.

This case involves an appeal from a conviction and fine for violation of 75 Pa.C.S.A. § 3365(b), a provision which prohibits speeding in a school zone. Appellant raises two issues on appeal: (1) whether the lower court erred in failing to quash a citation for speeding in a school zone, where the citation allegedly did not give her fair notice of what violation she was supposed to have committed and (2) whether the lower court erred in allowing a police officer to testify that appellant was driving over the speed limit in a school zone where the testimony was not obtained by a speed timing device. Although we find that the citation more than amply gave appellant “fair notice,” we are constrained to agree with the appellant that the current state of the law is that a police officer cannot testify as to his or her personal observation of speeding in a school zone. We reverse.

The facts of this case are as follows. At approximately 3:25 p.m. on Wednesday, September 12, 1990, appellant was stopped by Pittsburgh Police Officer Regina Martin in the 5600 block of Beacon St. of the city’s Squirrel Hill section, a school zone. The school zone had the statutorily required signs posted which declared that speed in the zone during school hours was 15 M.P.H. Police Officer Martin gave appellant a traffic citation, after having personally observed the rate of speed of appellant’s car. Appellant was subsequently found guilty of speeding in a school zone after a hearing before Chief Magistrate Harrington of the Pittsburgh Traffic Court. Following an appeal from this summary conviction, she was again convicted after a de novo hearing before the Hon. Raymond L. Schieb of the Allegheny County Court of Common Pleas. This appeal followed.

The first issue appellant would have us address is whether the traffic citation gave appellant fair notice of the conduct she was alleged to have committed, the speed at which she was alleged to have driven, or the applicable speed limit. Appellant argues that the citation is impermissibly unclear, as Police Officer Martin abbreviated the speed at which she was alleged to have driven and the applicable speed limit. Appellant argues that such abbreviations are deficient, both under the Rules of Criminal Procedures and under the Motor Vehicle Code. Appellant refers us to Pa.R.Crim.P 53, “Contents of Citation:”

(a) Every citation shall contain:
* * * * * *
(5) A citation of the specific section and subsection of the statute or ordinance allegedly violated, together with a summary of the facts sufficient to advise the defendant of the nature of the offense charged ...

(emphasis appellant’s). Appellant also calls our attention to § 3366 of the Motor Vehicle Code, which provides as follows:

In every violation of a speed provision in this subchapter except for a violation of section 3361 (relating to driving vehicles at safe speed), the citation shall specify the speed at which the defendant is alleged to have driven and the applicable speed limit.

75 Pa.C.S.A. § 3366. We think it does full justice to this argument to state that it is completely without merit.

“Although a citation must include a specific section of the statute violated, it need only show a summary of the facts sufficient to advise the defendant of the nature of the offense charged.” Commonwealth v. Weed, 3 Pa.D & C 3rd 151 (C.P.Cumb.1977), as quoted in Commonwealth v. Stahl, 296 Pa.Super. 507, 513, 442 A.2d 1166, 1169 (1982). The citation involved, No. 513613, reads in large, boldfaced, capítol letters at the top “TRAFFIC CITATION.” The citation is divided into a number of boxes wherein the dispensing officer writes down pertinent information such as the driver’s name and address, the nature of the charge, the driving conditions, the make and year of the vehicle, and the dispensing officer’s signature. In box number 16, entitled “Charge,” Officer Martin filled in “EXCEEDING SPEED LIMIT.” In box number 19, entitled “Nature of the Offense,” Officer Martin wrote “IN SCHOOL ZONE P25 Allow 15 App 25-26.” It is only reasonable to conclude that this is fair notice that the traffic citation had been issued for exceeding the speed limit at approximately 25 M.P.H. in a school zone where the speed limit allowed was 15 M.P.H. Moreover, it is pertinent to note that in box numbers 38 and 39, entitled “Sec.” and “Sub Sec.,” Officer Martin also wrote in the “3365” and “b,” the section and subsection of the Motor Vehicle Code dealing with speeding in a school zone. The argument that appellant did not receive “fair notice” is meritless.

Even if we had found the citation defective, we could not find in appellant’s favor on that ground. When a citation contains defects, we must look to Pa.R.Crim.P. 70 for the consequences. Commonwealth, Dept. of Trans. v. Palmer, 334 Pa.Super. 248, 251, 482 A.2d 1318, 1319 (1984). Pa.R.Crim.P. 90 provides, inter alia, that a Citation cannot be dismissed absent prejudice to the rights of the defendant:

A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the proceedings of this Chapter, unless the defendant raises the defect before the conclusion of the summary trial and the defect is prejudicial to the rights of the defendant.

Pa.R.Crim.P. 90 (emphasis added); see also Palmer, supra. Although appellant has not explicitly argued that she has suffered prejudice by the officer’s abbreviations, we find in any case that no such prejudice occurred. As we discussed supra, it strains the imagination to believe that appellant was surprised in any way about the significance of the Citation as a whole or the meaning of the abbreviations in particular.

The second issue appellant would have us address is whether a police officer can testify based solely on visual observation that an automobile was exceeding the speed limit in a school zone. The appellant asserts that 75 Pa. C.S.A. § 3368, as interpreted in our en banc decision Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989), compels us to rule in her favor. We are constrained to agree.

Our legislature in 75 Pa.C.S.A. § 3368 established comprehensive guidelines for the utilization of speed timing devices. It is pertinent to note that the legislature, in enacting the guidelines, did not indicate under what circumstances they apply. Martorano presented our Court with a case of first impression: does the existence of the guidelines require their mandatory use or do the guidelines merely indicate that if the police decide to use a speed timing device that they must use it according to the guidelines.

In Martorano, a police officer timed a driver greatly exceeding the speed limit with a VASCAR speed timing device in a twenty-five mile an hour zone, the Betsy Ross Bridge exit ramp onto Interstate 95. The driver was apprehended and issued a traffic citation for his violation of 75 Pa.C.S.A. § 3362(a)(3), which reads:

§ 3362. Maximum speed limits
(a) General rule. — Except when a special hazard exists that requires lower speed for compliance with section 3361 (relating to driving vehicle at safe speed), the limits specified in this subsection or established under this subchapter shall be maximum lawful speeds and no person shall drive a vehicle at a speed in excess of the following speed limits:
(1) 35 miles per hour in any urban district.
(2) 55 miles per hour in other locations.
(3) Any other maximum speed limit established under this subchapter.

The driver was convicted in traffic court and subsequently exercised his right to have a de novo hearing in the court of common pleas. At the hearing, the Commonwealth was unable to find the original certificate of accuracy of the VASCAR unit operated by the police officer. The Court accepted a Xerox copy over the driver’s objection, and he was once again convicted. However, for reasons which do not concern us here, the Court in its Opinion acknowledged that the Xerox copy was inadmissible and the VASCAR evidence could not be properly sustained as competent evidence. Notwithstanding, the Court found that the police officer’s eyewitness testimony was sufficient evidence independent of the VASCAR reading to support appellant’s conviction.

On appeal, an en banc panel of this Court faced for the first time the issue of whether, in light of § 3368, a police officer’s opinion testimony is sufficient grounds upon which to base a speeding violation pursuant to 75 Pa.C.S.A. § 3362(a)(3). Before the enactment of § 3368, a police officer had always been competent to render his opinion on a vehicle’s speed, subject only to the fact he must have observed the vehicle. See Commonwealth v. Martorano, 387 Pa.Super. 151, 163, 563 A.2d 1229, 1235 (1989) (Johnson, J., Dissenting); Commonwealth v. Monosky, 360 Pa.Super. 481, 485, 520 A.2d 1192, 1194 (1987); Commonwealth v. Reynolds, 256 Pa.Super. 259, 271, 389 A.2d 1113, 1119 (1978); Commonwealth v. Forrey, 172 Pa.Super. 65, 70, 92 A.2d 233, 235 (1952). However, in a 5-3 decision, we found that the recent amendments to § 3368 in 1985 and 1986 indicated a legislative intent that speed timing devices were mandatory. Martorano, supra, 387 Pa.Super. at 157, 563 A.2d at 1232. As the Court declared in that case:

[W]e conclude that because the legislature enacted detailed and specific instructions regarding use and maintenance of speed timing devices in this Commonwealth, it would be impermissible for us to sanction circumvention of those provisions. Therefore, we hold that in order to sustain a speeding conviction under 75 Pa.C.S. § 3362 the Commonwealth must present evidence which would satisfy the requirements of 75 Pa.C.S. § 3368. As a consequence, we also hold that a police officer’s uncorroborated testimony as to speed is insufficient to support a conviction for violating Section 3362.

Id. The Court went on to distinguish Commonwealth v. Monosky, a case which stated that opinion testimony of police officers who observed a speeder was sufficient to establish a violation of the motor vehicle statute. Monosky, the Court indicated, was distinguishable because it involved a violation of 75 Pa.C.S.A. § 3361, which requires drivers to drive at a safe speed and included no specificity with respect to the driver’s actual speed. Id. 360 Pa.Super. at 157-158, 563 A.2d at 1232-1233. The Court also utilized similar reasoning in distinguishing a case involving reckless driving, Commonwealth v. Dandar, 249 Pa.Super. 327, 378 A.2d 319 (1977). Martorano, supra, 387 Pa.Super. at 160 n. 5, 563 A.2d at 1233-1234 n. 5.

We note that in Martorano, subsection (3) of § 3362(a) was before the Court, and this subsection prohibits a person from driving a vehicle at any other maximum speed limit established under this subchapter. The subchapter subsection (3) refers to is subchapter F of the Motor Vehicle Code, of which § 3365(b), the section before us today, is a part. Thus, since Martorano’s holding is not restricted to § 3362, but includes the maximum speed limits set in Sub-chapter F, it would be unreasonable to restrict its holding to § 3362. Section 3362(a)(3) must always be used in conjunction with another section of Subchapter F which establishes a maximum speed limit. Indeed, although the Martorano opinion does not make clear exactly which maximum speed limit in Subchapter F the driver allegedly violated, it appears that it was § 3365(a). It is pertinent to note that § 3365(a) provides the Department of Transportation and local authorities with the power to set maximum speed limits on bridges or other elevated structure constituting part of a highway. See 75 Pa.C.S.A. § 3365(a). This is undoubtedly the maximum speed limit the driver in Martorano allegedly violated as he came off the Betsy Ross Bridge exit ramp onto Interstate 95.

The Commonwealth, although admitting the strength of Martorano, suggests Monosky, supra, is more analogous to this case than Martorano. However, the Commonwealth’s reasoning does not make a principled distinction because it relies on policy rather than the accepted canons of statutory interpretation. The Commonwealth notes that since the rate of speed in school zones is very low, and since school zones have a limited distance, it is fairly easy for an experienced police officer to determine whether someone is speeding. Moreover, the Commonwealth argues that it will be potentially onerous and burdensome to require police to use mechanical speed devices in school zones. Finally, it asserts that the state’s interest in protecting children would be ill-served by following Martorano. While we share the Commonwealth’s concerns as a matter of policy, we agree with the appellant that Martorano stands for the proposition that all provisions in Subchapter F which establish a maximum speed limit must be enforced by a speed timing device.

Order reversed. Case remanded for actions consistent with this opinion. Jurisdiction is relinquished.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent and would affirm the judgment of sentence. I do so for two reasons.

First, in my judgment, Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989), was incorrectly decided and should be reexamined. The legislature, in 75 Pa.C.S. § 3368, did no more than impose certain conditions upon the use of evidence obtained by mechanical speed timing devices. It did not eliminate the use of other competent evidence in cases involving alleged violations of the speed laws.

Secondly and in any event, I would not extend the holding in Martorano to the circumstances of the instant case. Although I comprehend the logic of the majority’s argument, I find it difficult to believe, as a practical matter, that the legislature intended to render it impossible to convict drivers who speed through school zones, at great risk to innocent school children, without the prior, anticipatory presence of a speed timing device.

When the evidence in this case is considered in the light most favorable to the Commonwealth, as we are required to do, I am of the opinion that it is sufficient to sustain appellant’s conviction of speeding in a school zone. Therefore, I would affirm the judgment of sentence.

      . It is perhaps implicit in the appellant’s argument that she did not receive "fair notice.”

      . Melinson, J. did not participate in the consideration or decision of Martorano.

      . We note that given the Court’s reasoning in Martorano, it is possible that other charges may have been brought pursuant to which Officer Martin may have testified as to speed in order to establish conditions which would have brought the appellant’s conduct within the purview of another Motor Vehicle Code violation. See, e.g., Martorano, supra, 387 Pa.Superior Ct. at 160 n. 5, 563 A.2d at 1233-1234 n. 5; Monosky, supra; Dandar, supra; Commonwealth v. Schmitzer, 286 Pa.Super. 138, 144-5, 428 A.2d 610, 613 (1981) (defendant found guilty of reckless driving based in part on police officer's visual observation that he was travelling 25 to 30 m.p.h. in a 15 m.p.h. school zone).

      . We note the following in support of our decision. Martorano held that the presence of regulations relating to the administration of speed timing devices in § 3368 indicated a legislative intent that such devices were to be used mandatorily by law enforcement officials to determine speed violations. Section 3368(e) states the following:
      (e) Distance requirements for use of mechanical, electrical and electronic devices. — Mechanical, electrical or electronic devices may not be used to time the rate of speed of vehicles within 500 feet after a speed limit sign indicating a decrease of speed. This limitation on the use of speed timing devices shall not apply to speed limit signs indicating school zones, bridge and elevated structure speed limits, hazardous grade speed limits and work zone speed limits.

        75 Pa.C.S.A. § 3368(e) (emphasis added). Accordingly, in light of Martorano's reasoning, the legislature by the presence of § 3368(e) not only contemplated the use of speed timing devices, but also facilitated their use as well.

      . I agree fully with the majority that the citation was sufficient and does not require an arrest of judgment.


author: CIRILLO, Judge. BROSKY, Judge,

text:
    605 A.2d 819
    Nancy P. STANTON v. Jon PETERSEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1991.
    Filed March 23, 1992.

      Bernard J. Hessley, Warren, for appellant.
    John A. Aranyos, Asst. Public Defender, Warren, for appellee.
   CIRILLO, Judge.

This is an appeal from a support order entered in the Court of Common Pleas of Warren County. We reverse.

In 1983, appellant Jon Petersen was ordered to pay $55.00 per week for the combined support of his two minor children. Appellee Nancy P. Stanton, the mother and custodian of the children, filed a petition for modification. The trial court, by order dated May 8, 1989, continued support in the amount of $55.00 per week. Stanton filed a second petition for modification on September 13, 1990. Following a hearing, the master recommended a support order in the amount of $105.00 per week. Petersen filed timely exceptions to the master’s recommendation. The Honorable Robert L. Wolfe, after hearing argument on the exceptions, entered a support order in the amount of $105.28 per week. Judge Wolfe entered judgment on that order on May 6,1991. This appeal followed. Petersen raises three issues for our review:

(1) Does an arithmetic average of the support guideline amount for child support determined in accord with Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984) constitute a required consideration of both the guidelines and the Melzer formula?
(2) Does a 91% increase in the child support, which requires the respondent father to pay 87-/2% of the total needs of the children, constitute an excessive, unfair and confiscatory order where there is no showing of a substantial and material change in the financial situation of the parties?
(3) Did the trial court properly determine the father’s net monthly income?

Prior to the enactment of the statewide Uniform Support Guidelines, 23 Pa.C.S.A. § 4322, Pa.R.C.P. No, 1910.16-2, 42 Pa.C.S.A., the trial courts had as their only guide in determining support obligations the formula announced in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). In Melzer, the supreme court held that the hearing court must determine the reasonable needs of the child and the parents’ respective abilities to support the child, allowing for the parents’ reasonable expenses in the determination of the latter figure. Each parent, Parent A and Parent B, is responsible for support of the child. The Melzer formula utilizes Parent A’s income available as support as the numerator, and Parent A’s income available for support plus Parent B’s income available for support as the denominator, and. multiplies that figure by the amount determined to be the reasonable needs of the child. The product of these two factors is Parent A’s support obligation. Parent B’s support obligation is determined in the same manner, utilizing Parent B’s income available as support as the numerator in the formula. 505 Pa. at 472-73, 480 A.2d at 996.

Pursuant to Melzer, this court has required trial courts to calculate the Melzer formula on the record. However, we have permitted the trial court to adjust the resulting support award if deviation from the formula is justified under the circumstances. Ryan v. DeLong, 371 Pa.Super. 248, 252, 538 A.2d 1, 2 (1987) (quoting Dewalt v. Dewalt, 365 Pa.Super. 280, 285, 529 A.2d 508, 511 (1987)); cf. Seawalt v. Muldoon, 406 Pa.Super. 94, 593 A.2d 886 (1991); Marshall v. Marshall, 404 Pa.Super. 628, 591 A.2d 1060 (1991). As this court has stated numerous times, Melzer eschewed a strict mechanical formula and endorsed a flexible approach in determining the support award. Melzer, 505 Pa. at 477-478, 480 A.2d at 999 (Flaherty and Hutchinson, JJ., concurring).

Petersen’s first claim on appeal presumes that the hearing court is required to consider both the guidelines and the Melzer formula. This presumption is correct. The enactment of the statewide guidelines has not rendered the Melzer formula obsolete. Recently, this court has remanded support matters for recalculation of the support award when the trial court failed to perform an on-the-record Melzer calculation. See Coffey v. Coffey, 394 Pa.Super. 194, 575 A.2d 587 (1990); Racciato v. Racciato, 393 Pa.Super. 307, 574 A.2d 625 (1990); Lesko v. Lesko, 392 Pa.Super. 240, 572 A.2d 780 (1990). In each of these cases, this court remanded to the trial court to recalculate the support award by applying the Uniform Support Guidelines, Pa.R.C.P. 1910.16-2, in harmony with the formula set forth in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Coffey, 394 Pa.Super. at 202, 575 A.2d at 591; Racciato, 393 Pa.Super. at 311, 574 A.2d at 627; Lesko, 392 Pa.Super. at 248, 572 A.2d at 785. Cf. Wonders v. Wonders (filed October 23, 1991) (Cirillo, P.J., Concurring and Dissenting). Consequently, this court has implicitly stated that the Uniform Support Guidelines do not supersede Melzer, but are to be applied in conjunction with Melzer in arriving at an appropriate support award. Wonders, supra (Cirillo, P.J., Concurring and Dissenting).

Following the supreme court’s decision in Melzer, our legislature authorized the enactment of support guidelines by the courts of common pleas. See 23 Pa.C.S.A. § 4322. This statute was enacted in response to a federal mandate arising from the concern that similarly situated children were not being similarly treated. See U.S. Department of Health and Human Services, Development of Guidelines for Establishing and Updating Child Support Orders, 2-3 (1985); Ryan, supra. The former section 4322, which directed the counties to calculate the reasonable needs of the children based upon parental income and assets, while allowing for deviations when faced with exceptional circumstances, clearly embodied the concerns of Melzer. See Ryan, 371 Pa.Super. at 253, 538 A.2d at 3; Wonders, supra.

It is well settled that “[t]he legislature’s use of statutory language similar to that used in a prior judicial decision is assumed to constitute legislative approval of that decision.” Ryan, 371 Pa.Super. at 253, 538 A.2d at 3. See In re Lock’s Estate, 431 Pa. 251, 244 A.2d 677 (1968). Former section 4322 and the case law, particularly Melzer, were harmonious. Ryan, supra. See Szillery v. Wheaton, 382 Pa.Super. 394, 399, 555 A.2d 237, 240 (1989) (“Although Section 4322 was promulgated in response to our Supreme Court’s decision in Melzer, Section 4322 has not superseded Melzer”). Section 4322 was amended December 20, 1989, effective January 1, 1990. A review and comparison of section 4322 and its predecessor evinces a consistency in the policies underlying the enactment of the guidelines. Other than authorizing the supreme court to establish the support guidelines and requiring review of the guidelines every four years, this section has remained substantially the same. Wonders, supra.

In addition to the above considerations, there are several other factors which support our determination that Melzer and the guidelines must be utilized harmoniously. In particular, Pennsylvania Rule of Civil Procedure 1910.16-5, pertaining to the operation of the support guidelines, recognizes that an appropriate support award cannot be determined simply by perfunctory application of objective data onto a grid. The rule, entitled “Applicability of the Support Guidelines,” states: The support guidelines are a starting point only. They must be applied taking into consideration the special needs and obligations of the parties. The hearing officer, permanent hearing officer or the court must consider all relevant factors, including the following:

(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(4) ages of the children;
(5) assets of the parties;
(6) medical expenses not covered by insurance;
(7) other relevant and appropriate factors.

Pa.R.C.P. 1910.16-5(a) (emphasis added). In our opinion, this rule mandates, in addition to a guideline amount, an individualized determination of support. The clear statement regarding the applicability and operation of the support guidelines mirrors the underlying policies and concerns of the Melzer court, and precludes any appreciable diffusion of the Melzer formula. See Ryan, supra; see also Shutter v. Reilly, 372 Pa.Super. 251, 539 A.2d 424 (1988). This rule endorses the Melzer approach.

Moreover, Pennsylvania Rule of Civil Procedure 1910.16-1 provides in pertinent part:

The amount of support to be awarded ... shall be determined in accordance with the support guidelines which consist of the guidelines expressed as grids set forth in Rule 1910.16-2 and as a formula in Rule 1910.16-3 and the operation of the guidelines set forth in Rule 1910.16-5.

Pa.R.C.P. 1910.16-l(a) (emphasis added). Clearly, a reference to the “guidelines” generically refers to the grids or the formulaic expression of the grids set forth in Pa.R.C.P. 1910.16-3. A simple application of the grids or the formula, however, ignores the mandates of Rule 1910.16-l(a) and Rule 1910.16-5. Likewise, the comment to Rule 1910.16-1 states that “failure to deviate from these guidelines ... where there are special needs and special circumstances constitutes a misapplication of the guidelines.” Pa.R.C.P. 1910.16-1 — explanatory comment.

For the guidelines to operate in the manner in which they are designed, recognition must be given as required by the statute to
(a) unusual or special needs of the parties and their children;
(b) extraordinary expenses such as those necessary to meet unusual and unavoidable obligations; and
(c) other factors “as warrant special attention” such as third party contributions, separate property and other circumstances that increase or decrease a party’s ability to pay support.

Id. It follows, therefore, that the amount of support to be awarded shall be determined by reference to both the guidelines (grid or formula) and the Melzer formula as expressed in Pa.R.C.P. 1910.16-5.

In sum, the guidelines have refined the Melzer formula, and have attempted to prepare the calculation, in the form of grids, for the ease and benefit of the litigants and the hearing courts. See Pa.R.C.P. 1910.16-2, 42 Pa.C.S.A. Neither approach is purely the law; both must be considered as guides in determining the parents’ respective support obligations. Melzer requires the hearing court to indicate on the record what figures are inserted into the grids, how the court arrived at these figures, and the reasons for any deviation in the formula or guidelines determination.

As stated in Wonders, supra, while the guidelines advance the goal of similar treatment, we would be foolhardy to assume that any objective formula or grid could reflect the manner in which two parents will choose to rear their children. See O’Donnell, Smith v. Smith: No Magic Formula for Determining Child Support Payments of the Noncustodial Parent, 18 Willamette L.Rev. 353, 363 (1982). Countless variables may contribute to deviations; the circumstances of each mother/father/child(ren) unit must be considered and, for purposes of our review, stated on the record. Children from second marriages in need of support, disabilities, special educational or health requirements, just to name a few, are financial concerns which are not figured into the grids.

Accordingly, we agree with Peterson’s argument that the trial court must utilize the guidelines as a starting point, Pa.R.C.P. 1910.16-5(a), as well as the Melzer formula in order to calculate an individualized support determination. The figure reached after application of the Melzer formula, as embodied in Pa.R.C.P. 1910.16-5, with adjustments if warranted, would be the correct amount of support, regardless of the grid point award under the guidelines. With this in mind, we must determine whether the trial court’s “arithmetic average” of the guideline figure and Melzer determination was appropriate in this case.

Our scope of review in an appeal from an order of support is extremely narrow. We are limited to determining whether an abuse of discretion, as shown by clear and convincing evidence, has occurred. Steinmetz v. Steinmetz, 381 Pa.Super. 440, 443, 554 A.2d 83, 85 (1989). “An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment.” Marshall v. Ross, 373 Pa.Super. 235, 238, 540 A.2d 954, 956 (1988).

Here, the trial court made the following determinations:

Peterson’s income: $1,884.00 per month $ 438.00 per week

Stanton’s earning

capacity: $ 660.00 per month $ 153.00 per week

Reasonable Needs

of the Children: $1,414.00 per month $ 328.83 per week

The trial court’s application of the Melzer formula yielded a total support obligation for Petersen in the amount of $88.93 per week; application of the support guidelines yielded a figure of $121.63 per week. The trial court averaged the two figures, resulting in a support determination of $105.28 per week.

We note the confusion up to now on the legal issue of whether the state support guidelines have supplanted the Melzer formula. The trial judge noted his own uncertainty, which may have led him to the the conclusion that splitting the difference would result in a fair resolution. We do not, however, approve of this approach. Although we find no error in the court’s mathematical calculations, a simple average of the guideline figure and the Melzer figure is a misapplication of the law. Marshall v. Ross, supra. We note, too, that the trial court’s introduction of a third step in the calculation of a child support award is neither factually nor legally justified on the record before us. Our endorsement of this “averaging” approach would only serve to aggravate the prevailing confusion in this area of the law.

Contrary to Pa.R.C.P. 1910.16-4(b), the trial court’s determination of Petersen’s support obligation is greater than a ten percent deviation from the guideline amount, and the deviation has not been explained on the record. Subsection 4(a) allows for an unexplained deviation of ten percent from the guideline support award; the court’s determination of a support obligation may be either ten percent greater than or ten percent less than the guideline amount, and the hearing officer or trial court need not explain the deviation. Subsection (b), however, states that a deviation of greater than ten percent above or below the guideline amount must be explained and justified. Pa. R.C.P. 1910.16-4(b). Furthermore, the guidelines provide that a support determination which is greater than one standard deviation above or below the guideline amount must be explained by the hearing officer or trial court. See Pa.R.C.P. 1910.16-5(a). Cf. Lampa v. Lampa, 371 Pa.Super. 1, 537 A.2d 350 (1988) (trial court is required to explain substantial deviation of award from county child support guidelines and Melzer formula).

Acknowledging that the guidelines are a starting point only, the hearing court is nonetheless required to provide an explanation for certain deviations. Although the trial court properly considered both the Melzer formula and the guidelines, and attempted to harmonize the two figures, see Marshall v. Marshall, supra, the court deviated below the guideline figure beyond one standard deviation without explanation. This was error. We are unable to derive an explanation from the record, especially in light of the court’s consideration of Petersen’s $931.00 per month “cushion” after his own living expenses, which Petersen attributed in part to Stanton’s contributions, and the court’s consideration of the fact that Petersen has remarried, and consequently his household expenses have decreased by almost one half. Without explanation, we are unable to determine whether the deviation was an abuse of discretion, and therefore we vacate and remand for reconsideration in light of these principles.

Petersen’s second claim on appeal need not be addressed due to our decision to vacate and remand. In his final issue, Petersen contends that the trial court erred in determining his net income. Petersen does not dispute the figure of $1,884.00 per month, but instead argues that the court should have reduced that amount by 30% because the children spend approximately 111 days per year with him. Petersen has not referred this court to the record support for the claim that he spends 111 days per year with his children, see Pa.R.A.P. 2119(c), and we are unable to locate such support. We conclude that this argument is merit-less.

Vacated and remanded. Jurisdiction relinquished.

FORD ELLIOTT, J., concurs in the result.

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

BROSKY, Judge,

concurring and dissenting.

I concur with the majority’s conclusion that the case requires a remand for reconsideration of the support obligation. However, I am unable to join the major premise of the opinion that indicates the necessity of considering the Melzer formula.

In Wonders v. Wonders (1991), (discussed in the majority opinion), I set forth my view that the implementation of the statewide support guidelines made reference to Melzer unnecessary and possibly counterproductive. To paraphrase that thesis, which will not be reiterated here in full, the guidelines, by their wording, are mandatorily applicable to the majority of cases before the hearing court. Although the major goal behind the guidelines and the Melzer formula are the same, the arrival at a fair and adequate support obligation, the methodology at arriving at this goal is bipolar, as are the philosophies behind the methodologies. As such, it is rather incongruous to suggest that the two approaches be harmonized, because it is very likely that they cannot. I further set forth a variety of reasons that supported the premise that the new guidelines were meant to be the sole criteria for establishing support obligations when they were applicable to a particular ease. Among those reasons was the fact that the guidelines, although established after the decision in Melzer, do not indicate that they are to be combined with caselaw established principles in determining a support obligation. For the reasons set forth in my concurring opinion in Wonders I did not believe then, nor do I believe now, that the guidelines were meant to be considered in conjunction with a Melzer calculation. Instead, I believe that the new guidelines supercede the Melzer approach.

In Wonders, considering the approach of consulting both the guidelines and Melzer, I wrote “[i]n the worst case scenario the two methods would provide disparate figures, in which case a second dilemma would surface. Presented with two conflicting numbers the parties would be forced to argue which is the more reasonable and the courts will be forced to choose between the competing figures or engage in a process of compromise.” Concurring Opinion by Bro-sky, J., at p. 3. The present case illustrates this problem exactly. The sum reached through utilization of the guidelines is roughly 33% higher than the sum arrived at via the Melzer formula. One party is advocating adoption of the Melzer number, and the other party, the guidelines number. The court, trying to satisfy the cases that seem to suggest consideration of both is proper, gave equal deference to both, he averaged the two numbers. Now, upon appeal, the majority suggests that it was improper to average the two numbers. No one could blame the trial court if he felt exasperated or frustrated by a remand in this case. The cases from this court provide very little resolution or guidance on this matter. It was with an eye towards situations like the one this case presents that prompted me to argue in Wonders that the guidelines should be the sole guiding methodology for arriving at a support obligation. Upon examining this case that position presents even greater

appeal. I would remand for a determination of support through utilization of the guidelines only.

      . It should be noted that irrespective of what approach the trial court utilizes, whether it be the Rule 1910.16-3 formula or the Rule 1910.-16-2 grids, the resulting amount of the support award is the same. See Pa.R.C.P. 1910.16-1 — Explanatory Comment.

      . As provided above, the trial court determined that Petersen’s support obligation pursuant to the Melzer formula was $88.93 per week, and, pursuant to the guidelines, $121.63 per week. The average of these two figures, $105.28, is greater than ten percent below the guideline figure. The court without explanation could have determined Petersen’s support obligation to be $109.47 per week, one standard deviation below the guideline amount. See Pa.R.C.P. 1910.16-4(a); 1910.-16-5. In a pecuniary manner of speaking, the court has erred in Petersen’s favor. However, parents are obligated to support their children to the extent of their financial abilities to do so. Commonwealth ex rel. Barbara M. v. Joseph M., 286 Pa.Super. 51, 428 A.2d 567 (1981).

      . Petersen acknowledged this point at the hearing before the master on November 14, 1990.

      . Petersen’s argument is premised on his statement that the court did not consider the direct contributions he makes for the support of his children, such as medical expenses, gifts, eye glasses, contact lenses and clothes. We point out that Pennsylvania Rule of Civil Procedure 1910.16-5(/) states:
      The support guidelines contemplate that the non-custodial parent has regular contact, including vacation time, with his or her children, and that he or she makes direct expenditures on behalf of the children. Thus, a non-custodial parent’s support obligation should be reduced only if that parent spends an unusual amount of time with the children.
      Pa.R.C.P. 1910.16-5(/). The direct contributions, therefore, barring exceptional circumstances, are factored into the support guideline amount.


author: POPOVICH, Judge. CAVANAUGH, Judge,

text:
    605 A.2d 825
    COMMONWEALTH of Pennsylvania, Appellant, v. Christina JONES, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 20, 1991.
    Filed April 3, 1992.

      Ann Lebowitz, Philadelphia, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Jeffry S. Pearson, Philadelphia, for appellee.
    Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge.

This is an appeal by the Commonwealth of Pennsylvania from the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County, following the conviction of appellee on charges of possession of cocaine and possession of cocaine with intent to deliver. Appellee was sentenced to not less than eighteen months nor more than thirty-six months of incarceration to be followed by two years of probation and a fine of $5000. Herein, the Commonwealth contends that the lower court imposed an illegal sentence when it refused to impose the mandatory minimum sentence provided by 18 Pa.C.S.A. § 7508(a)(3)(ii). We agree with the Commonwealth. Accordingly, we vacate the judgment of sentence and remand for sentencing.

The record reveals the following facts: On January 12, 1989, appellee was tried and convicted of possession of cocaine and possession of cocaine with intent to deliver. Testimony at trial revealed appellee sold a “dime” bag of cocaine to an undercover police officer from her home. Based on that sale, the police obtained a search warrant for her home. Therein, police found, inter alia, a large bag of cocaine on the top of appellee’s refrigerator, twenty-four small packets of cocaine inside a bottle marked “Spice Supreme” which was inside a kitchen cabinet and twenty packets of cocaine in appellee’s bedroom. Appellee asserted that the drugs were actually her son’s.

Prior to sentencing, the Commonwealth notified appellee of its intention to seek imposition of the mandatory minimum sentence under 18 Pa.C.S.A. § 7508(a)(3)(ii). At the sentencing hearing on April 12, 1989, the Commonwealth introduced evidence of the precise weight of the cocaine involved: the large bag of cocaine weighted 19.951 grams, the twenty-four packets in the “Spice Supreme” bottle weighted 3.728 grams and the twenty packets weighed 2.722 grams for a total of 26.401 grams of cocaine. Based on this evidence, the court found that, by a preponderance of the evidence, the Commonwealth had established that appellee possessed with intent to deliver in excess of ten grams of cocaine. The court then properly imposed the mandatory minimum sentence of three to six year imprisonment and a $15,000 fine. Appellee’s trial counsel filed a timely petition for reconsideration of sentence, alleging, inter alia, that appellee did not actually or constructively possess all the cocaine found in her residence, and, therefore, her sentence was illegal. However, appellee’s motion was denied.

Twenty-eight days after sentencing, on May 10,1989, new counsel filed a second petition to reconsider sentence, and later that same day, the trial court vacated appellee’s sentence pending a hearing to determine, inter alia, whether trial counsel was ineffective. Hearings on appellee’s motion were held on February 20, 1990 and March 2, 1990, during which appellee’s new counsel also argued that his client did not possess all of the drugs in question.

Eventually, on July 3, 1990, appellee was resentenced. Inexplicably, at the time of resentencing and after having rendered a verdict of guilty, the lower court re-examined the facts of the case and determined that appellee possessed only the 2.722 grams of cocaine found in her bedroom, not the entire 26,401 grams of cocaine found in her home. The court determined that the Commonwealth proved beyond a reasonable doubt that appellee actually or constructively possessed only those drugs found in her bedroom. Contrary to the testimony credited at trial, the court issued a new factual finding which indicated the large bag of cocaine and the “Spice Supreme” jar which contained twenty-four small packets of cocaine were found in a cabinet located in the stairway going from the kitchen to the basement where her son resided. Based on that finding, the court decided that appellee did not constructively possess the cocaine in the stairway cabinet, but rather her son possessed that cache of cocaine. Over the Commonwealth’s objection, the lower court then sentenced appellee to eighteen to thirty-six months of imprisonment and a fine of $5000 in accordance with 18 Pa.C.S.A. § 7508(a)(3)(i).

Having reviewed the record, we find that the lower court erred in reassessing the facts of the case at the time of sentencing. Appellee was convicted of 35 Pa.C.S.A. § 780-113(a)(30), possession of a controlled substance with intent to deliver. Appellee admitted her participation in the sale of a “dime” packet of cocaine to an undercover officer. Over twenty-six grams of cocaine were found in her home, either in her bedroom or in common areas of her home. The Commonwealth more than satisfied its burden of proving beyond a reasonable doubt that appellant actually or constructively possessed all 26.401 grams of cocaine. Cf, Commonwealth v, Mudrick, 510 Pa. 305, 307-310, 507 A.2d 1212, 1213-1214 (1986); Commonwealth v. Santiesteban, 381 Pa.Super. 18, 20-22, 552 A.2d 1072, 1074-1075 (1988). Indeed, the court below necessarily found the Commonwealth met its burden of proof when it adjudicated appellee guilty, correctly imposed her original sentence and denied her first motion for reconsideration of sentence.

At sentencing, when applying 18 Pa.C.S.A. § 7508(a)(3)(ii), the court was required only to determine whether the Commonwealth established by a preponderance of the evidence that cocaine which appellee possessed weighed at least ten grams and less than one hundred grams. See 18 Pa.C.S.A. § 7508(b). Certainly, the Commonwealth sustained their burden of proof through expert testimony as to the exact weight of the cocaine in question. See Commonwealth v. Perez, 397 Pa.Super. 574, 580 A.2d 781 (1990) (extrapolation of weight from samplings sufficient to prove weight).

As we stated in Commonwealth v. Rosario, 400 Pa.Super. 505, 511, 583 A.2d 1229, 1232 (1990), “we hold that once a party is found guilty, the adjudicated elements of the offense must be fully considered and cannot be disregarded when fashioning a sentence____ The sentencing court is not allowed to rewrite the script____” Instantly, although adjudicating appellee guilty of possessing cocaine with intent to deliver, the lower court decided to “rewrite the script” by finding that appellee did not possess all of the cocaine found in her residence. This type of reexamination of the facts at the time of sentencing in order to permit the court to impose a more lenient sentence ignores its legislative mandate and will not be condoned. Cf. Rosario, 400 Pa.Superior Ct. -, 583 A.2d at 1232-1233. Since the lower court did not impose the mandatory minimum sentence required for appellee’s crime, we vacate appellee’s sentence and remand for resentencing in accordance with that mandated by 18 Pa.C.S.A. § 7508(a)(3)(ii). See Commonwealth v. Logan, 404 Pa.Super. 100, 590 A.2d 300 (1991) (lower court has no discretion to impose less than the mandatory minimum sentence, and if it does, appellate court will vacate the sentence and remand for resentencing); 18 Pa.C.S.A. § 7508(d).

Judgment of sentence vacated and case remanded for resentencing in accordance with the provisions of this opinion. Jurisdiction relinquished.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting.

I respectfully dissent from the conclusion reached by the majority that the lower court imposed an illegal sentence. Rather, I would find that the lower court’s sentence was a proper application of the mandatory minimum sentence provision.

At the time it rendered a verdict, as the finder of fact, the court specifically stated that it was making no determination as to the amount of drugs involved. The court said that it considered the issue of amount to be, “appropriate for determination at sentence.” Notes of Testimony, Jan. 12, 1989, at 100. The court made no special findings in connection with the verdict and did not indicate then which of the Commonwealth’s and which of the defense’s evidence it accepted as true.

It was at the initial sentencing hearing that the court delved into the question of the amount of cocaine possessed by appellee. After hearing argument on this issue, the court imposed a sentence of three to six years, which indicated that it determined that the amount of cocaine involved was at least ten grams and less than 100 grams. Within the thirty-day period during which it retained jurisdiction after sentencing, the court vacated the sentence upon a petition to modify.

It is within the authority of the trial court to grant a petition to modify sentence where it vacates the original sentence within thirty days after it was imposed. See, Pa.R.Crim.P. 1410, Comment; Pa.R.A.P. 1701; Commonwealth v. Feagley, 371 Pa.Super. 593, 538 A.2d 895 (1988). The purpose of this procedure is to allow the lower court to reconsider the sentence, the process of which necessarily implicates a reexamination of the facts upon which it based its original sentencing decision. This is a proper function of the court when modification of sentence is under consideration. See, Commonwealth v. Cottman, 327 Pa.Super. 453, 476 A.2d 40 (1984).

Although the time lapse between the vacation of the original sentence and the imposition of the second sentence involved in this case is, indeed, considerable, the lower court acted within its authority in resentencing on July 3, 1990. Its determination at that time that it had erred at the original sentencing hearing on April 12, 1989, in calculating the amount of cocaine involved, was a permissible exercise of its sentencing duties.

The court did not, at the time it announced the verdict, indicate which testimony it credited. The majority assumes that the court believed all of the Commonwealth’s evidence in reaching the guilty verdict. This conclusion is erroneous because, as noted above, the court at the time of the verdict specifically indicated that the issue of amount would be decided at sentencing. The re-assessing of facts that occurred was not of facts found in conjunction with the rendition of the verdict, but of facts implicitly decided at the first sentencing. This latter factual assessment by the court is precisely what is properly the subject of the process of reconsideration of sentence.

Because I find that the lower court’s sentence was within the law and took account of the mandatory minimum, I would affirm the judgment of sentence.

      . 18 Pa.C.S.A. § 7508, in pertinent part, provides:
      (a) General rule. — Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply: ******

      (3) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation of coca leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecgonine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
      ******
      (ii) when the aggregate weight of the compound or mixture containing the substance involved is at least ten grams and less than 100 grams: three years in prison and a fine of $15,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: five years in prison and $30,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity!.]

      . Appellee testified that the large bag of cocaine and the twenty-four packets contained in the "Spice Supreme" jar were found in a cabinet located in the stairway leading from her kitchen to the basement where her son resided.

      . At the hearing held on March 2, 1990, trial counsel testified concerning appellee’s allegations that he was ineffective. At the sentencing hearing, the trial court dismissed appellee’s allegations that trial counsel was ineffective.

      . We note that these “new" factual findings were made well over one year after the original adjudication of guilt, and they were not based on new evidence, but rather on a re-evaluation of the officers’ and appellee’s credibility.

      . We note that absolutely no evidence was presented to establish that appellee did not have access to the stairway cabinet.

      . 18 Pa.C.S.A. § 7508(a)(3)(i), provides that the minimum mandatory sentence for a person found to have possessed with intent to deliver "at least 2.0 grams and less than ten grams” of cocaine is one year in prison and a fine of $5000.

      . We note that during the many months that passed between the original sentencing and second sentencing, the court received numerous letters on appellee’s behalf which the prosecutor characterized as able to "bring tears to the eyes of Attila the Hun.’’ N.T., 7/3/90, p. 3. Although the lower court admitted receiving the letters, none of them appears in the record.
      In rendering our decision today, we recognize that sentencing judges are sometimes faced with the task of imposing a mandatory sentence which seems unduly harsh under the circumstances. However, we remind them that the Legislature has seen fit to mandate certain minimum sentences, and they have no discretion to impose a lesser penalty, despite apparent inequity in the sentence. Cf., Logan, supra.


author: HESTER, Judge:

text:
    605 A.2d 829
    COMMONWEALTH of Pennsylvania v. Miklos HOMOKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1992.
    Filed April 7, 1992.
    Miklos Homoki, pro se.
    James J. Narlesky, Asst. Dist. Atty., Easton, for Com.
    Before DEL SOLE, TAMILIA and HESTER, JJ.
   HESTER, Judge:

Miklos Homoki appeals from the May 3,1991 judgment of sentence entered by the Court of Common Pleas of Northampton County after he was found to be in violation of the terms of his probation. On April 12, 1991, the trial court found that appellant violated his probation as alleged by his probation officer, who found appellant in possession of cocaine and a large knife. Appellant subsequently was sentenced to serve twelve to twenty-four months imprisonment.

In this appeal, appellant argues that the trial court violated his due process rights by holding only one hearing to find probable cause that he violated his probation. He argues that separate Gagnon I and Gagnon II hearings were required; one to find probable cause and to afford him notice of the charges so that he could prepare his defense, and the other to determine whether facts existed to justify revocation of his probation. We find merit in appellant’s argument, and accordingly, we are constrained to vacate sentence and remand for a Gagnon II hearing.

On October 17, 1990, appellant tendered a guilty plea to two counts of possession of methamphetamine and one count of possession of heroin. On the same date, he was sentenced to two concurrent six-to-twelve month terms of imprisonment on the two counts of possession of methamphetamine and to one six-to-twelve month term of imprisonment on the count of possession of heroin. The sentence on the heroin count was made consecutive to the sentences imposed on the methamphetamine counts. The sentence was then suspended, and the court ordered appellant to be placed on two, consecutive nine month terms of probation.

On April 12, 1991, the court held a probation violation hearing based on the petition of Northampton County Probation Officer Mark Mazziotta. During a visit to appellant’s home on March 25, 1991, Mr. Mazziotta allegedly found appellant in possession of certain items which violated the terms of appellant’s probation. At the time, appellant lived with his sister and her young son. At the hearing, Mr. Mazziotta, testified that when he visited appellant on March 25, 1991, he discovered a large knife, wrapped in cloth, on the table beside appellant’s bed. He also seized a pack of Kool cigarettes which contained cocaine wrapped in a crumpled magazine paper. Possession of a weapon and drugs violated the conditions of appellant’s probation. At the hearing, appellant admitted that he had possessed and consumed alcoholic beverages that day, which also violated conditions of his probation, but denied the knife was a weapon or that he knew anything about the cocaine found in the pack of cigarettes.

Appellant testified at the hearing that his sister, Virginia Homoki, bought the knife as a gift for him without his knowledge. This differed from appellant’s first explanation to Mr. Mazziotta, that he had been sharpening the knife for a friend. Mr. Mazziotta also testified that appellant later stated that he kept the knife beside his bed for protection. Appellant, however, denied either statement.

Appellant’s sister testified that she was not aware that her brother possessed or kept any contraband in the apartment they shared. The probation officer, however, maintained that he inspected only the part of the premises occupied by appellant and not the area in which his sister lived. At the hearing, the trial court found probable cause to support Mr. Mazziotta’s allegations and revoked appellant’s probation.

The trial court then went on to discuss at the same hearing the option of ordering appellant to participate in an inpatient drug counseling program as an alternative to incarceration. Appellant indicated to the court at the April 12, 1991 hearing that he was willing to participate in inpatient drug counseling. Appellant, however, later informed the court by letter that he did not wish to participate. On April 24, 1991, the trial court denied appellant’s post-trial motions in which he alleged that his due process rights had been violated because the trial court did not hold the required Gagnon I and Gagnon II hearings separately. On May 3, 1991, the trial court reimposed the October 17, 1990 suspended sentence of twelve to twenty-four months imprisonment. This appeal followed.

Appellant asserts that his due process rights were violated when the trial court failed to hold two separate hearings on his probation violation. Therefore, appellant argues, his sentence must be vacated. He contends that the United States Supreme Court decisions in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), require that two separate hearings be held in order to revoke parole or probation. The first hearing is a preliminary hearing intended to inform the defendant of the nature of the charges so that he may prepare a defense. The second hearing is designed to determine whether facts exist to justify revocation of parole or probation. In Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616 (1975), we discussed Gagnon and stated:

“At the preliminary Gagnon I hearing, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence on his own behalf, a conditional right to confront adverse witnesses, an independent decision maker, and a written report of the hearing.” Gagnon v. Scarpelli, supra, 411 U.S. at 786, 93 S.Ct. at 1761, citing Morrissey v. Brewer, supra, 408 U.S. at 487, 92 S.Ct. 2593. Thus, the Gagnon I hearing is similar to the preliminary hearing afforded all members before a Common Pleas Court trial: the Commonwealth must show probable cause that the violation was committed.
The Gagnon II hearing entails, or may entail, two dimensions: first, a “consideration of whether the facts determined warrant revocation.” Morrissey v. Brewer, supra at 488, 92 S.Ct. at 2603. “The first step in a Gagnon II revocation decision ... involves a wholly retrospective factual question: whether the parolee or probationer has in fact acted in violation of one or more conditions of his parole or probation.” Gagnon v. Scarpelli, supra, 411 U.S. at 784, 93 S.Ct. at 1761, citing Morrissey v. Brewer, supra, 408 U.S. at 479-80, 92 S.Ct. 2593____ “Only if it is determined that the parolee or probationer did violate the conditions does the second question arise: should the parolee or probationer be recommitted to prison or should other steps be taken to protect society and improve the chances of rehabilitation?” Gagnon v. Scarpelli, supra, 411 U.S. at 784, 93 S.Ct. at 1761, citing Morrissey v. Brewer, supra, 408 U.S. at 479-80, 92 S.Ct. at 2593.

Id., 234 Pa.Super. at 39-40, 336 A.2d at 621. Appellant argues that only one hearing was held in the instant case before his probation was revoked and he was sentenced.

The Commonwealth contends, as did the trial court, that the trial court held two separate hearings, a Gagnon I hearing and a Gagnon II hearing, one following the other on the same day. The Commonwealth asserts appellant obviously was informed of the charges brought against him since he was prepared with a defense. The Commonwealth asserts that appellant has not alleged he was not informed of the charges against him or that his defense was handicapped in any way. Moreover, the trial court determined, and the Commonwealth asserts, that there is no requirement that the two hearings must be held at different times.

We cannot accept this explanation. Our law clearly requires two independent hearings. Running them together or holding them on the same day does not meet the constitutional due process requirements set forth in Gagnon. The instant hearing was held on one day, April 12, 1991. This met the requirement of Gagnon I by informing appellant at a hearing of the nature of the charges being brought against him after review by a neutral authority. The trial court, however, improperly proceeded to revoke appellant’s probation. It then sentenced him without holding a separate hearing. The purpose of the preliminary Gagnon I hearing is for an authority independent of the probation officer, who at this stage is acting as a prosecutor, to review the charges for probable cause and to inform appellant of the probation violations alleged against him. We cannot accept that “two parts” to “one hearing” constitute two separate hearings.

If we accepted the Commonwealth’s argument, a probationer, such as appellant, or parolee would not be afforded the time and opportunity to prepare a defense against charges after review of them by a neutral body. Such a procedure could result in arbitrary and unchecked power by a probation officer to bring charges that could lead to incarceration if the parolee or probationer could not assert an adequate defense. Appellant was informed of the charges, his probation was revoked, and a sentence was imposed, all in one hearing. In our view, the instant proceedings defeated the constitutional due process requirements set forth in Commonwealth v. Davis, supra, and was improper.

Accordingly, we are constrained to vacate appellant’s sentence and remand with directions for the trial court to hold a Gagnon II hearing. Jurisdiction relinquished.


author: ROWLEY, President Judge.

text:
    605 A.2d 832
    S.A.C. v. S.B., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 18, 1992.
    Filed April 16, 1992.

      Paul E. Cherry, DuBois, for appellant.
    Timothy P. Morris, Asst. Dist. Atty., Punxsutawney, for appellee.
    Before ROWLEY, President Judge, and CIRILLO and BROSKY, JJ.
   ROWLEY, President Judge.

In this appeal, S.B. challenges the trial court’s finding that he is the father of appellee S.C.’s daughter, bom July 4, 1990. Because the order that has been appealed is interlocutory rather than final, we are required to quash the appeal.

On August 15, 1990, appellee filed a complaint for child support against appellant. Appellant denied paternity, HLA blood testing was conducted, and a non-jury trial to determine paternity was held on August 5,1991, before the Honorable Edwin L. Snyder. Appellant was present at trial but was not represented by counsel. At the conclusion of the trial, Judge Snyder ruled that appellant was the father of appellee’s child, and he advised appellant of his right to file post-trial motions within ten days. Judge Snyder’s ruling appears in the certified record in the form of a verdict dated August 5, 1991, and filed the following day.

Appellant did not file post-trial motions. On August 15, 1991, he filed the present, timely appeal from the verdict. Appellant, now represented by counsel, raises two issues: 1) whether the trial court erred in finding the evidence sufficient to overcome the presumption of legitimacy; and 2) whether appellant, having allegedly retained counsel who failed to appear at trial, should be granted a new trial on the ground of ineffective assistance of counsel.

Appellant’s appeal is premature, as appellee argues and as the following portions of Pa.R.C.P. 1910.15 make clear:

(d) (2) If the verdict or decision is against the defendant on the issue of paternity, unless a post-trial motion is filed and sustained, an interlocutory order shall be entered, on praecipe or by the court, finding paternity.
(e) After an interlocutory order is entered finding that the defendant is the father of the child, the court shall either refer the case to a conference as in other actions for support or as expeditiously as possible hold a hearing on the issue of the amount of support and shall enter a final order of support.
(f) The interlocutory order of paternity is not an appealable order but any issue of paternity raised in a post-trial motion may be included in an appeal from a final order of support.

Pa.R.C.P. 1910.15(d)(2), (e), (f) (emphasis added). As appellant filed no post-trial motions challenging the verdict, we will consider the verdict dated August 5, 1991, and filed August 6, 1991, to be the “order” finding paternity. Rule 1910.15 makes abundantly clear that such an order is interlocutory rather than final and that challenges to the finding of paternity must await the filing of a direct appeal from a final order of support. Our case law supports this conclusion. See Commonwealth ex rel. Wright v. Lacy, 291 Pa.Super. 185, 435 A.2d 630 (1981) (Supreme Court’s adoption of Rule 1910.15(f) indicates that, as under existing case law, appellant cannot attack paternity determination until support has been ordered).

“[I]t is a fundamental principle of law that an appeal will lie only from a final order unless otherwise permitted by statute or rule.” Motheral v. Burkhart, 400 Pa.Super. 408, 414, 583 A.2d 1180, 1183 (1990) (en banc) [citing Fried v. Fried, 509 Pa. 89, 93, 501 A.2d 211, 213 (1985) ]. Accordingly, because the present appeal is taken from an interlocutory order and is not permitted by statute or rule, we are required to quash the appeal. At this juncture we are not required to determine whether appellant, who did not file post-trial motions, has preserved the issues raised herein for inclusion in an appeal from a final order of support.

Appeal quashed.