text:
    535 A.2d 196
    Lawrence J. FIERST and Betty J. Fierst, his wife, Appellees, v. COMMONWEALTH LAND TITLE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 13, 1987.
    Filed Dee. 28, 1987.

      Richard G. Kotarba, Pittsburgh, for appellant.
    David J. Millstein, Greensburg, for appellees.
    Before WIEAND, KELLY and POPOVICH, JJ.
   WIEAND, Judge:

This is an appeal by Commonwealth Land Title Insurance Company (Land Title) from an order refusing to strike a default judgment entered against it by Lawrence J. Fierst and Betty J. Fierst. The determinative issue can be understood only after a review of the history of this protracted litigation.

On December 10, 1981, the Fiersts filed a complaint against Land Title which sounded in assumpsit and tort. The complaint was served on Land Title on December 15, 1981. Thereafter, an extension of thirty days within which to file a responsive pleading was granted orally by plaintiffs’ counsel to counsel for the defendant. Despite several conversations between counsel for the parties after this extension had expired, a responsive pleading was not forthcoming. Therefore, on April 1, 1982, plaintiffs’ counsel gave written notice of intent to enter a default judgment under Pa.R.C.P. 237.1. When there still was no responsive pleading, the Fiersts, on April 13, 1982, caused a default judgment to be entered. The praecipe for judgment recited that “[njotice of intent to enter default judgment [had been] served upon the counsel for the Defendant on April 1, 1982.” A copy of the notice, addressed to Land Title, was attached to the praecipe.

A petition to open the default judgment was filed on June 25, 1982. In order to assist the court in deciding the same, the parties filed a stipulation of facts. Included were the following agreed facts:

9. On April 1, 1982, Plaintiffs’ counsel in compliance with the Pennsylvania Rules of Civil Procedure sent out the appropriate notices of intent to take default judgment.
12. On April 13, 1982 at 10:42 a.m., Plaintiffs’ counsel filed a Praecipe for Default Judgment along with proper certification in compliance with the Pennsylvania Rules of Civil Procedure and judgment was entered accordingly.

Land Title’s petition to open the default judgment was denied on December 28, 1982 because, the trial court held, Land Title had not moved promptly to open the judgment. No immediate appeal was filed. Instead, Land Title petitioned the trial court to reconsider its order, alleging for the first time that the Fiersts had failed to comply with the notice requirements of Pa.R.C.P. 237.1. The petition for reconsideration was denied on August 28, 1984; and on September 25, 1984, Land Title appealed to the Superior Court. It argued, inter alia, that the default judgment was improper and should have been opened because the Fiersts had failed to comply with Rule 237.1.

The Superior Court, in an unpublished memorandum, affirmed the order of the trial court and responded to Land Title’s argument as follows:

Commonwealth Land Title complains that the Fiersts failed to comply with the notice provisions of Pa.R.C.P. 237.1 in that while notice was served upon Attorney Herrington, and the Praecipe so stated, the Praecipe did not state that the notice of intention to enter default judgment was served upon Commonwealth Land Title. Furthermore, Appellant complains, the notice of intent to take default judgment was never served on or received by Commonwealth Land Title prior to the entry of default judgment by the Fiersts. Commonwealth Land Title has appended, to its brief, an affidavit to this effect.
Appellant’s petition to open the default judgment contains no allegation that notice was never received by them and, based upon stipulation to which attorneys for both the Fiersts and Appellant agreed, the trial court found as a fact that, in compliance with the Pennsylvania Rules of Civil Procedure, appropriate notices of intent to take default judgment had been sent. Thus, we find that Appellant has waived this argument by failure to first raise it in the court below. See: Ackerman v. Port Authority of Allegheny County, 323 Pa.Super. 375, 470 A.2d 640 (1984).
Regarding Commonwealth Land Title’s attempt to raise this issue in its petition to the trial court for reconsideration, a petition for reconsideration of an order asks the court to reconsider its order in light of the record it previously considered. Conaway v. 20th Century Corporation, 491 Pa. 189, 420 A.2d 405 (1980). We perceive no manifest abuse of discretion or error of law on the part of the trial court for having failed to consider the enhanced record presented to it.

A subsequent application to the Superior Court for reargument was denied.

Thereafter, Land Title filed, on October 23, 1986, a petition to strike the judgment on grounds that the record was defective because it failed to disclose that the Fiersts had complied with Pa.R.C.P. 237.1. The trial court denied the petition summarily; and Land Title filed the appeal which is presently before this Court.

The Fiersts filed a motion to quash Land Title’s appeal on grounds that the issue had been decided by this Court in the earlier appeal and that its judgment was now final. This motion is denied. The prior appeal was from an order refusing to open the default judgment. The present appeal is from a subsequent order denying a motion to strike the judgment on grounds that it was patently defective. This appeal is properly before the Court.

A petition to strike a judgment will be granted only for defects appearing on the face of the record. Franklin Interiors v. Wall of Fame Management Co., Inc., 510 Pa. 597, 599, 511 A.2d 761, 762 (1986); Continental Bank v. Rapp, 336 Pa.Super. 160, 166, 485 A.2d 480, 483 (1984); Academy House Council v. Phillips, 312 Pa.Super. 364, 369, 458 A.2d 1002, 1004 (1983); Gee v. Caffarella, 300 Pa.Super. 480, 482, 446 A.2d 956, 957 (1982). If the record affirmatively shows a failure to comply with Pa.R.C.P. 237.1, the record is defective. Such a record fails to support the entry of a default judgment. Fountainville Historical Farm v. Bucks County, 340 Pa.Super. 412, 490 A.2d 845 (1985); Academy House Council v. Phillips, supra; Giallorenzo v. American Druggists’ Insurance Co., 301 Pa.Super. 294, 447 A.2d 974 (1982).

In the instant case, however, the record is not defective. Attached to the praecipe for the entry of judgment was a copy of a notice of intent to enter a default judgment, which had been addressed to Land Title. Although the language of the praecipe for judgment was that the notice of intent had been served upon counsel, the parties subsequently stipulated that notice of intent to enter a default judgment had been sent in compliance with the Pennsylvania Rules of Civil Procedure. This record is sufficient to support a valid judgment.

Moreover, appellant was estopped to assert any irregularity in the proceedings leading up to the entry of a default judgment. After the default judgment had been entered, appellant did not challenge the validity of the judgment but acknowledged its validity and moved to open it. Its petition to open the judgment did not allege that the judgment was defective because of a failure to give notice under Rule 237.1. Instead, appellant assumed the validity of the judgment, stipulated that notice of intent to enter a default judgment had been appropriately given, and asked the trial court, by the application of equitable principles, to open the judgment and allow a defense to plaintiffs’ cause of action. The trial court found that equitable principles did not warrant an opening of the judgment and denied relief. It was only then, in a petition requesting reconsideration, that appellant sought to repudiate its stipulation and aver a default judgment based on inadequate compliance with Pa. R.C.P. 237.1. This was too late. Appellant was bound by its stipulation and estopped from seeking to strike the judgment on grounds that prior notice had not been given.

Parties are bound by their stipulations made in judicial proceedings. “[Concessions made in stipulations are judicial admissions, and accordingly may not later in the proceedings be contradicted by the party who made them.” Tyler v. King, 344 Pa.Super. 78, 89, 496 A.2d 16, 21 (1985). See also: Tops Apparel Manufacturing Co. v. Rothman, 430 Pa. 583, 587, 244 A.2d 436, 438 (1968); Light v. Miller, 303 Pa.Super. 527, 530, 450 A.2d 51, 53 (1982). Therefore, Land Title will not now be heard to say that it did not have notice that the Fiersts intended to enter a default judgment against it.

The judgment entered against Land Title was not what is sometimes referred to as a “snap judgment.” The judgment was entered almost four months after the complaint had been served. In the interim, according to the record in the proceedings to open the judgment, plaintiffs’ counsel had orally granted an extension of thirty days for the filing of a responsive pleading by the defendant and, upon the expiration of the extended period, had made several requests upon defense counsel to file the same. Finally, plaintiffs’ counsel sent notice that plaintiffs intended to enter judgment if the default were not corrected within ten days. When the default remained uncorrected after the expiration of that ten day period, the default judgment was finally entered on April 13, 1982. This judgment, as we have observed, is facially valid and will not be stricken because appellant now has obtained new counsel and alleges that it was not aware of prior counsel’s default.

Finally, appellant argues that the trial court erred because it denied the motion to strike the judgment without taking testimony pursuant to Pa.R.C.P. 209. This argument misperceives the nature of a motion to strike the judgment. “An application to strike off a judgment is an attack upon the judgment’s validity.” 12 Std.Pa.Prac., Relief from Judgments § 71:165. It is in the nature of a demurrer to the record. Bethlehem Steel Corp. v. Tri State Industries, Inc., 290 Pa.Super. 461, 434 A.2d 1236 (1981); Edlis v. County of Allegheny, 89 Pa.Cmwlth.Ct. 209, 492 A.2d 455 (1985). It may be granted only for defects appearing on the face of the record. Franklin Interiors v. Wall of Fame Management Co., Inc., supra 510 Pa. at 599, 511 A.2d at 762. A judgment may not be stricken on the basis of facts outside the record. 12 Pa.Std. Prac. Relief from Judgments § 71:170. If the alleged defect is based on matters outside the record, the proper approach is by petition to open the judgment. Middletown v. Fried & Gerber, Inc., 308 Pa.Super. 161, 454 A.2d 71 (1982) .

Appellant’s petition to strike the default judgment entered against it was a demurrer to the record; it asked the court to review the record and determine whether it was sufficient to support a valid judgment. This petition did not require the court to take testimony in order to determine whether the application of equitable principles required that the judgment should be opened to allow a defense. Because appellant’s request was limited to a review of the record to determine the validity of the judgment, there was no need to receive testimony by depositions or otherwise. To consider facts not already a part of the record would have been improper.

The order of the trial court is affirmed.

POPOVICH, J., concurs in the result.

      . A prior action in equity between the same parties had terminated in favor of Land Title.

      . The panel of the Superior Court could have affirmed the trial court’s refusal to reconsider for the same reasons which led to the decision in Simpson v. Allstate Insurance Co., 350 Pa.Super. 239, 504 A.2d 335 (1986).


source: Caselaw Access Project

author: HESTER Judge: BECK, Judge,

license: Public Domain

text:
    535 A.2d 200
    Michelle A. DeNILLO, Appellant, v. Samuel C. DeNILLO.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1987.
    Filed Dec. 30, 1987.

      Richard S. Levine, Pittsburgh, for appellant.
    P. Louis DeRose, III, Greensburg, for appellee.
    Before BECK, JOHNSON and HESTER, JJ.
   HESTER Judge:

This appeal is from the hearing court’s decision of December 4, 1986, ordering appellant, Michelle DeNillo, and appellee, Samuel DeNillo, to continue sharing physical custody of their child, Sam, on an alternating weekly basis. Sam, born March 19, 1982, is five years old. We reverse and remand.

On March 7, 1983, pursuant to the parties’ agreement, the court awarded custody of Sam, who was then eleven months old, to appellant. The court later filed an amended order on April 11, 1983, providing for joint legal custody, with primary physical custody awarded to appellee until appellant could arrange suitable housing.

Thereafter, on September 20, 1983, again pursuant to the parties’ agreement, the court awarded shared physical custody of Sam to his parents on alternating weeks. That order also provided for a review seven months later on April 24, 1984. A series of three hearings then were held: April 24, 1984, August 21, 1984, and March 3, 1986. In the interim, on January 26, 1984, the parties were divorced. Finally, on December 4, 1986, the hearing court ordered continued shared custody of the child, holding that any other arrangement was not in the child’s best interest. This appeal followed.

There are two issues before us. The first is whether the hearing court erred in refusing to consider appellee’s criminal sexual misconduct as evidenced by his participation in an Accelerated Rehabilitative Disposition (ARD) program after being held for court on two counts of indecent exposure. The second issue concerns the propriety of the order of shared custody in light of the guidelines established in In re Wesley, J.K., 299 Pa.Super. 504, 445 A.2d 1243 (1982).

At the first hearing held April 24, 1984, Officer Thomas Mason of the City of Jeannette Police Department testified that following an investigation he arrested appellee on two counts of indecent exposure. A preliminary hearing was held on December 5, 1983, at which the two victims appeared and testified. Notes of Testimony (N.T.), 4/24/84, at 8-9. Following the hearing, appellee was held for court on both counts. Id. at 9. On February 1, 1984, appellee elected to participate in an ARD program and was given two years probation. Id. Other requirements of the probation included a mental evaluation and the payment of the costs of prosecution.

Appellant presented the above testimony in support of her request for primary physical custody of Sam. In addition to arguing that the alternating weekly schedule was failing, appellant requested the hearing court to consider the effects of appellee’s criminal conduct, as evidenced by his election to participate in ARD, not only upon the child, but also upon appellee’s fitness as a custodian.

In rejecting the notion that it should have considered appellee’s misconduct, the hearing court failed to acknowledge that an individual is not considered for ARD until he has been held for court at a preliminary hearing, unless such a hearing is waived. In this case, a preliminary hearing was held, and the charges against appellee were held for court. Thus, the Commonwealth must have established the existence of a prima facie case.

While it is true that admission to an ARD program is not equivalent to a conviction, Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982); Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1981), it is equally true that ARD is legally relevant in certain proceedings. See 75 Pa.C.S. §§ 1534, 1542(c), 1539(c); Commonwealth, Department of Transportation v. McDevitt, 57 Pa.Cmwth. 589, 427 A.2d 280 (1981), affd, 500 Pa. 532, 458 A.2d 939 (1983) (election by motorist to participate in ARD program constitutes a knowing waiver of motorist’s right to prove his innocence and amounts to a conviction for purposes of classifying the motorist as an habitual offender). Further, even when an ARD program is successfully completed, the charges are dismissed, and no conviction results, neither the original charges nor the individual’s participation in the ARD program are removed from the record in the event of subsequent criminal activity. Commonwealth v. Knepp, supra. We noted in Commonwealth v. McSorley, 335 Pa.Super. 522, 485 A.2d 15 (1984), affd per curiam, 509 Pa. 621, 506 A.2d 895 (1986), that successful completion of ARD is not equivalent to a finding of innocence. See Commonwealth v. McKellin, 9 D. & C.3d 572 (1979).

Given the analogous issues heretofore decided, it is clear that in certain circumstances consideration may be given to an individual’s participation in an ARD program. We believe that the criminal charges against appellee, even though disposed of through ARD, are relevant in this custody dispute.

Our research reveals that applicable cases exist wherein a parent seeking custody had a criminal record and the court properly considered it, although the court’s consideration of the record was not an issue in the cases. See, e.g., Ferencak v. Moore, 300 Pa.Super. 28, 36, 445 A.2d 1282, 1286 (1982) (“Nor can we or should we ignore [the mother’s] criminal record____”) and Commonwealth ex rel. Ruczynski v. Powers, 206 Pa.Super. 415, 212 A.2d 922 (1965), affd, 421 Pa. 2, 219 A.2d 460 (1966) (mother’s criminal record involving moral turpitude may be examined and evaluated by the courts in attempting to determine her probable future actions”).

Similarly, there are cases in which a parent seeking custody was romantically involved with someone who had a criminal record. For example, Dile v. Dile, 284 Pa.Super. 459, 426 A.2d 137 (1981), involved a custody dispute between the paternal grandmother and the natural mother. In affirming the trial court’s award of custody to the grandmother, this court stated, “[T]he factor which tipped the scales in favor of awarding custody to the grandmother was the fact that the mother chose to live with ... a man with several convictions for violent crimes.” Id., 284 Pa.Superior Ct. at 468, 426 A.2d at 142.

It is clear that a custody court has an obligation to consider all relevant factors that could affect the child’s well being, as its paramount concern is the child’s welfare and best interests. Jones v. Stone, 343 Pa.Super. 416, 495 A.2d 205 (1985). In this case, we are not concerned with idle gossip or unsubstantiated allegations. Rather, this case involves appellee’s arrest for charges of indecent exposure following an investigation, the charges being held for court following the establishment of a prima facie case, and his election to participate in ARD. See also Commonwealth v. Becker, 366 Pa.Super. 54, 63, 530 A.2d 888, 892 (1987) (“[I]t is also important to remember that a criminal suspect’s election of ARD is a voluntary decision.”) These are proper considerations for a court which bears the heavy responsibility of determining a child’s best interests.

The second issue is whether the hearing court erred in holding that the four criteria set forth in In re Wesley J.K., supra, were met. We hold that the fourth criterion was not met.

Appellant argues that shared custody is inappropriate in the present case because the parties are unable to communicate and cooperate in promoting Sam’s best interests. In rejecting this argument, the hearing court stated, “This Court heard no credible evidence that the shared custody in this case was not in the best interest of the child.” Hearing court opinion at 10. This conclusion is belied by the record.

At the first hearing, appellant testified that there is no communication between the parties. N.T., 4/24/84, at 15. She testified that if she asks a specific question, she sometimes gets an answer, and sometimes does not. Id. She testified to appellee’s refusal to cooperate in administering medicine, getting the child’s shots, and inconsistency in weaning the child from the bottle. Id. at 19-20, 29. Appellant testified that appellee “gives as little information as he has to. He answers the exact question but I get no further details.” Id. at 47. Appellant further testified that appellee has never questioned her nor shown any interest in “what goes on with the child” when Sam is in her custody. Id. Her testimony was supported by that of Dr. Douglas Ramm, a clinical psychologist, who provided vocational and academic guidance, and tangentially, advice on matters concerning custody. Id. at 63, 65.

Appellee, who testified at the August 21, 1984 hearing, also stated that there was no communication between the parties. N.T., 8/21/84, at 13. In response to questioning by the court, appellee admitted that he does not ask appellant about her care of Sam, and implied that he does not volunteer any information about Sam, when he stated, “Obviously she didn’t ask or I would have told her.” Id. at 38.

Appellee was even more candid at the March 3, 1986 hearing. Theretofore, appellee had desired to maintain the shared custody arrangement. N.T., 8/21/84, at 15. However, at the March 3 hearing, appellee stated he desired primary physical custody. Appellee testified, “We [the parties] don’t usually talk, it’s usually good-by Sammy or something in that order. Nothing between Michelle and I at all.” N.T., 3/3/86, at 22. Appellee claimed that he and appellant do not even communicate or cooperate concerning Sam’s medical problems. Id. at 23. The record is replete with examples of the parties’ inability to communicate regarding major concerns of their young child’s life, let alone discuss the small, day-to-day matters that arise.

This inability to communicate and the lack of even a minimal degree of cooperation between the parents is most strikingly seen in a matter brought to our attention at oral argument. Through either an inability or unwillingness to communicate and cooperate, young Sam has been enrolled in two different school districts since the beginning of the 1987-1988 school year. Counsel for the parties and even the hearing court itself must share the responsibility for this untenable situation.

The Supreme Court of Pennsylvania, in Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987), recently reaffirmed the propriety of a broad and searching appellate review in custody cases. The court reiterated that a reviewing court must not accept a finding which has no competent evidence to support it. Id., citing Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977).

We hold that the trial court’s conclusion that it is in Sam’s best interest that physical custody be shared on alternating weeks is not based upon competent evidence, and such an order of custody represents an abuse of discretion. While it is necessary to remand for proceedings consistent with this opinion, we direct that such proceedings take place with the utmost dispatch. Shaffer v. Gaal, 312 Pa.Super. 399, 458 A.2d 1020 (1983); In re LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976).

The order of the hearing court is reversed, and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

BECK, J., files a dissenting opinion.

BECK, Judge,

dissenting:

I believe that the majority exceeds the proper scope of review in refusing to accept factual findings of the trial court that are supported by the record. I therefore dissent.

The majority finds error by the trial court where the record does not reveal error. The majority’s first contention is that the trial judge should have considered the fact that father-appellant was admitted to Accelerated Rehabilitative Disposition (ARD) on two counts of indecent exposure. The record demonstrates that the trial judge considered the father’s ARD. In his opinion, the trial judge notes that the father was on ARD.

The judge as the finder of fact, however, believed the father’s testimony that he had not committed the acts charged but consented to ARD only to avoid the embarrassment of a trial. The credibility of witnesses is a matter uniquely within the province of the hearing court. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). Since ARD is not a conviction, the judge was completely free to believe appellant’s assertion that he had not committed the acts charged.

Next, my review of the record supports the trial court’s disposition of shared custody. The majority finds the trial court was in error in concluding that the parties exhibited the minimal degree of cooperation required for an award of shared custody. In re Wesley J.K., 299 Pa.Super. 504, 445 A.2d 1243 (1982). The majority in so concluding has exceeded the proper scope of review by disregarding the clear findings of fact made by the trial court and the reasonable inferences derived therefrom.

Our Supreme Court recently reiterated the standards to be applied upon review of a custody determination in Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987). The Lombardo court emphasized that the appellate court’s broad scope of review in custody matters was never intended to permit the overriding of findings of fact made by the trial court, provided such findings are supported by evidence in the record.

In light of the limited scope of review, it seems to me that the majority’s conclusion that the trial court erred in finding the parties could not minimally cooperate cannot stand. The four Wesley criteria for shared custody are: 1) both parents are “fit,” 2) both desire continuing involvement with their child, 3) both parents are seen by the child as sources of security and love, and 4) both parents are able to communicate and cooperate in promoting the child’s best interests. Id., 299 Pa.Super. at 516-17, 445 A.2d at 1249.

As we explained in Wesley, the fourth or cooperation criterion requires

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

Ibid (Emphasis added), quoting Beck v. Beck, 86 N.J. 480, 498, 432 A.2d 63, 71-72 (1981).

The rationale behind the minimal cooperation requirement is that if the parents have a total inability to make cooperative decisions relating to the child, the child will ultimately be harmed. If the parents dislike each other and fight between themselves but have the minimal ability to cooperate in decisions relating to the child, then shared custody may be appropriate. While in general shared custody is in the child’s best interest in that it helps the child maintain a close, realistic relationship with both parents, these benefits may be negated in cases where joint decision making relating to the child causes such bitter disputes that the atmosphere in which the child is raised may be poisoned. I recognize that a parent may prefer sole custody. The parent may think it preferable for him or her to have the legal right to make all decisions relating to the child, but the judge must ask if such an arrangement is best for the child. I also recognize that divorce is usually predicated on disharmony between the parties and that such disharmony may extend to childrearing. Disharmony alone is not a bar to shared custody if shared custody is in the best interest of the child. The law requires only that the parties be capable of a minimal degree of cooperation.

The majority asserts that that the trial court erred in finding the minimal cooperation criterion to be met, citing the mother’s testimony that the father is uncommunicative regarding the care of the child, Sam, particularly with regard to the father’s practices in weaning Sam from the bottle, and that the father refuses to administer medicine to Sam. However, examination of the record reveals clear evidence to the contrary on both of these points. Such evidence supports the factual findings and conclusions of the trial court. This court is bound to accept those findings and conclusions despite the existence of other, contradictory evidence. In almost every custody case, conflicting testimony will be offered by the parties and their witnesses. It is precisely the function of the trial court to assess the credibility of witnesses and decide whose assertions are more credible.

In the case sub judice, both mother’s and father’s testimony support the findings of the trial court that the parties exhibited cooperation in handling their son. The mother’s own words at trial are contrary to her assertions on appeal. She gave the following testimony regarding the communication between her and the father concerning Sam’s care when he was ill:

Q: (Appellee father’s attorney): Were there some instances that illnesses began when [father] had the child so you would get the child in an ill condition?
Appellant: Yes.
Q: Did [father] also give you medications?
Appellant: Yes he did or if he wasn’t on a prescription he’d tell me what he was doing for him.
Q: Would he tell you how the child was behaving so you knew what to look for?
Appellant: Yes.
Q: You were able to talk about those things?
Appellant: That’s correct.

N.T. 4/24/84, p. 44. Father also testified that he gives Sam appropriate medicine when he is ill. N.T. 3/3/86, p. 24.

Regarding the weaning of Sam from the bottle, mother testified as follows:

Q: (Appellee father’s attorney): And is it your testimony that on each of [the four occasions a month that the child is transferred] you have asked him about the bottle?
Appellant: I may not have asked him about the bottle everytime, but I asked him about other things that concerned me too.
Q: Limiting to the bottle, you had an opportunity to ask him about that.
Appellant: Yes.
Q: And each time he’s answered you is that correct?
Appellant: Yes.
Q: Has he ever refused to discuss it with you?
Appellant: No, he’s never refused.

N.T. 4/24/84, p. 29 (Emphasis added).

Having heard the testimony of both mother and father, the trial court made findings of fact that father did give the child his medicine and did communicate with mother regarding the care of the child. In light of the above record testimony, I cannot conclude that the trial court abused its discretion in making those findings.

In addition to finding adequate communication between the parents, the trial court highlighted other factors in the case that support the appropriateness of an order of shared custody. The parties originally agreed to shared custody, see Brown v. Eastburn, 351 Pa.Super. 479, 506 A.2d 449 (1986); Murphey v. Hatala, 350 Pa.Super. 433, 504 A.2d 917 (1986), and have between themselves successfully worked out adjustments in the custody schedule for holidays, vacations, birthdays, etc.. Brown v. Eastburn; cf. Agati v. Agati, 342 Pa.Super. 132, 492 A.2d 427 (1985). Most significantly, the court found that both parents have been actively involved in their child’s life to date. See Murphey v. Hatala.

Each parent, in fact, testified that they recognized and supported the important role the other has played and will continue to play in their young son’s life. Mother testified as follows:

Q: (Appellant’s attorney): What attitude or what feeling do you have concerning [father’s] contact with the child?
Appellant: Well, Sam has to see him sometimes as a father. It’s important for Sammy to see him.
Q: Is it your intention to exclude baby Sammy from Mr. DeNillo here?
Appellant: No.
Q: Do you feel his contact is important?
Appellant: Very important. Sammy has to know who his father is and has to have contact with him all the time no matter what.

N.T. 4/24/84, p. 21. Mother testified that she was trying to change the shared custody arrangement not out of any dissatisfaction with father’s parenting of the child, but out of a desire to have more time with the child herself. When asked why she was petitioning for sole custody, she testified:

Because I like to have full custody of him. I’d like to do things with him, not saying [father] would not____ I mean I don’t have anything against him, I think Sammy should see him but I’d like to have full custody of him.

N.T. 4/24/84, p. 21.

Similarly, when father was asked what custody arrangement he would prefer, he testified:

Well, of course I would like to have full custody of Sam, but I don’t think it would be right to take Sam completely off of Michelle. He does need his mother. I think he needs both of us. So by taking him and giving him to me or Michelle I don’t think that would be very good. I think he needs both of us.

N.T. 8/21/84, P. 15.

In light of the evidence of record, I cannot conclude that the trial court abused its discretion in finding that shared custody was in the best interest of the child.

Shared custody is a proper vehicle for each parent to maintain maximum commitment to the child. A parent who is merely a visitor with the child and who does not engage in decision making for the child may soon attenuate his ties to the child because he or she after a period of time may feel no real engagement with the child. It is best for the child to have the active participation of both parents who take the full parental role on an ongoing basis. Divorce is always disruptive to children. Shared custody, when properly arranged, minimizes that disruption. Both parents retain full responsibility for decisions relating to the child, and that is usually in the child’s best interest.

I address one final issue raised by the majority. The majority states that at oral argument it was revealed that Sam has been enrolled in two different school districts since the beginning of the 1987-88 school year. Assuming arguendo that this is true (it is not a fact of record), it in no way affects that portion of the order of the trial court entered on December 1986, relating to shared custody. Now that Sam is of school age it is essential that shared custody be redesigned so that Sam will be enrolled in only one school and reside during the school week with the parent in the school district in which he is enrolled. It would be completely proper, under an order of shared custody, to award physical custody of Sam to one parent for weekdays during the academic school year, and to the other parent for certain weekends, holidays and a portion of the summer months. Shared legal custody does not require equal physical custody; it merely requires shared decision making for the child. Ellingsen v. Magsamen, 337 Pa.Super. 14, 486 A.2d 456 (1984).

I would therefore affirm the order of the trial court.

      . The four criteria set forth in In re Wesley J.K., supra, are: 1) both parents are fit, 2) both desire continuing involvement with their child, 3) both parents are seen by the child as sources of security and love, and 4) both parents are able to communicate and cooperate in promoting the child’s best interests. Id.., 300 Pa.Superior Ct. at 517, 445 A.2d at 1249.

      . In attempting to illustrate how the record in this matter supports the hearing court’s finding that the parties exhibited the minimal degree of cooperation required to support a shared custody arrangement, the dissent reproduces portions of testimony offered at the March 24, 1984 hearing. Dissenting Opinion at 372-376. However, the most recent hearing in this matter was held two years later, on March 3, 1986. During that two year period, it is clear that the degree of communication trickled away to nothing, as revealed by appellee’s own testimony. N.T., 3/3/86, at 22, 23; infra at 376. Neither party considered the shared custody arrangement to be successful for the same reason: the parents simply could not communicate.

      . It goes without saying that shared custody does not require equal physical custody. Dissenting opinion at 376. However, it is the present alternating weekly arrangement that we must evaluate and find supported by the record, not a hypothetical plan the hearing court may order in the future.

      . We note that the continual decline in the parties’ ability to communicate constituted a substantial change in circumstances requiring reconsideration of the custody issue. Such a finding is a precursor to the court’s reconsideration of custody. “The reasons for the rule requiring a substantial change in circumstances are no less viable because the prior court order was entered without hearing and pursuant to agreement of the parties.” Burr v. Morgart, 339 Pa.Super. 341, 345, 488 A.2d 1155, 1157 (1985).

      . The fact that the trial court has found that the parties are not cooperating as fully as they might, and that it would be desirable if they would do so, does not mean that they do not exhibit the required minimal degree of cooperation. Brown v. Eastburn, 351 Pa.Super. 479, 506 A.2d 449 (1986).

        . The majority states in footnote 2 that, whatever the state of the relationship between the parties at the March 24, 1984 hearing, the testimony offered at the March 3, 1986 hearing demonstrated that by then the mother and father’s cooperation had dwindled away to nothing. I disagree. At the March 3, 1986 hearing, the father testified that he and the mother had worked out changes in the custody schedule to permit the mother to have Sam with her during her vacation. N.T. 3/3/86, pp. 18-19. They did this without involving their lawyers or the court. Ibid. The father also gave testimony that demonstrated that he and the mother communicate on important issues affecting Sam’s medical care. On one occasion merely two weeks before the March 3, 1986 hearing, the mother told father when he came to pick Sam up that Sam had fallen and hit his head, N.T. 3/3/86 pp. 22-23, which alerted the father to watch for complications that might develop while Sam was in his care. The father also testified that the mother gives him any medication Sam might be on at exchange time. N.T. 3/3/86, p. 23. This testimony that the parties are capable of working together on issues such as custody scheduling and Sam’s medical care supports the trial court’s finding that Sam’s parents possessed the requisite minimal degree of cooperation.


author: CERCONE, Judge:

text:
    535 A.2d 207
    Richard P. RYAN v. Bertrand J. JOHNSON and Susan L. Johnson, H/W and Bertrand J. Johnson and Susan L. Johnson, T/A West End Styles Appeal of Susan Lewis JOHNSON.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1987.
    Decided Nov. 30, 1987.
    Reargument Denied Jan. 20, 1988.

      Samuel A. Litzenberger, Quakertown, for appellant.
    Harold D. Borek, Norristown, for appellee.
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an Order of the Montgomery County Court of Common Pleas which denied appellant’s Petition to Strike/Open Judgment. Appellant and her husband signed an installment note on June 1, 1981 in the amount of $20,000. Upon appellants’ failure to tender their annual installment payment of $3,600 by July 30, 1983, appellee exercised his option under the contract to declare the entire balance of the note due. When the note remained in default, appellee filed a complaint seeking a confession of judgment pursuant to the following provision of the note:

On non-payment of any installment when due, all remaining installments shall at the option of the holder become immediately due and payable. We agree to pay if this note is placed in the hands of an attorney for collection, a reasonable attorney’s fee of five percent (5%) of the amount due and owing on the defaulted note. And to secure the payment of said amount, we hereby authorize, irrevocably, the Prothonotary, Clerk of Court, or any Attorney of any Court, in term time, or vacation, at any time before or after maturity and confess a judgment without process in favor of any holder of this note, with or without the filing of an Averment of Declaration of Default, for such amount as may appear to be unpaid thereon, together with charges, costs and Attorney’s fees____ [Emphasis added].

Judgment was thereafter confessed and entered on October 14, 1983. Upon denial of her Petition to Open/Strike Judgment, appellant filed a timely notice of appeal on December 12, 1986. The lower court ordered and directed appellant to file a Concise Statement of Matters Complained Of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), which provides:

(b) Direction to file statement of matters complained of. If the lower court is uncertain as to the basis for the appeal, the lower court may by order direct the appellant forthwith to file a record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of. Pa.R.A.P., Rule 1925(b), 42 Pa.C. S.A.

Appellant responded with a vague and cryptic statement:

Appellant, Susan Lewis-Johnson, intends to complain on appeal of all issues raised either at oral argument or in the pleadings. Appellant cannot be more specific without an opinion of the Court addressing those issues, and reserves the right to file additional reasons after receiving the opinion of the Court. Appellant has no knowledge of the basis for the Order of Court until review of the Opinion in support thereof.

The lower court found this statement to be “neither clear nor concise” and therefore “extremely difficult, if not impossible, to address [appellant’s] 1925(b) Statement.” We agree. The purpose of Rule 1925(b) is to provide the appellate court with the lower court’s reasoning so that unless appellant informs the lower court of her complaints, the lower court will not be aware of the issues which must be addressed in its memorandum opinion. See Commonwealth v. Mathis, 317 Pa.Super. 362, 464 A.2d 362 (1983).

In Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982), the Pennsylvania Supreme Court discussed the effect of failure to comply with Rule 1925(b):

The statement provided for [in Rule 1925(b)] is clearly intended to aid the trial court in the preparation of an opinion where the basis of an appeal is unclear after post-verdict motions have been disposed of. The waiver provision of the Rule is properly invoked only where failure to file a statement or omission from a statement of issues raised on appeal defeats effective appellate review. Mere omission from the statement ... of an issue preserved by post-verdict motion, argued before and briefed on appeal, does not, in itself, defeat effective review of that issue.

Id., 499 Pa. at 238, 452 A.2d at 1333 (emphasis added). We stated in Commonwealth v. Crowley, 259 Pa.Super. 204, 393 A.2d 789 (1978), that in order to exercise our discretion to find waiver for failure to comply with Rule 1925(b), “we must consider the impact on our ability to exercise appellate review.” Id., 259 Pa.Superior Ct. at 211-12, 393 A.2d at 792. See also Barrick v. Fox, 73 Pa.Commw. 6, 457 A.2d 208 (1983).

In the case at bar, the trial court found it impossible to address appellant’s ambiguous statement or even “to speculate as to what [appellant’s] contentions will be on appeal.” The court added that appellant’s “evasive technique leaves this Court unsure as to which, if any, issues it should address” and therefore was “unable to ascertain the basis for the instant appeal.” Although appellant later filed a supplemental statement specifying her objections to the order in question, she did so only after the lower court filed an opinion urging dismissal of the appeal for noncompliance with Rule 1925(b). We are therefore left to review the issues which appellant has briefed totally without the benefit of the lower court’s discussion and rationale for its order. This necessarily has a serious impact on our ability to exercise effective review for we are unable to discern whether the trial court erred in its application of the pertinent law or whether its refusal to open or strike the confessed judgment constituted an abuse of discretion.

Accordingly, we elect to employ our discretion under Rule 1925(b) and find that appellant’s noncompliance acts “as a waiver of all objections to the order ... complained of” because such noncompliance materially interferes with our ability to exercise effective appellate review. Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Moreover, “[t]o relinquish our discretion in cases where a party has failed to comply with Pa.R.A.P. 1925(b) will effectively emasculate the rule, and totally undercut the purpose for which it was formulated.” Barrick, 73 Pa.Commw. at 9, 457 A.2d at 209. Appeal dismissed. Jurisdiction relinquished.

      . The installment note was executed by both Bertrand J. Johnson and Susan L. Johnson. This appeal, however, is taken only by Susan L. Johnson even though both appellant and her husband defaulted.

      . We note that there is no need to file post-trial motions after a petition to open or strike a confessed judgment has been denied.


author: HESTER, Judge: CIRILLO, President Judge,

text:
    535 A.2d 602
    COMMONWEALTH of Pennsylvania v. Robert J. CAUTO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 12, 1987.
    Filed Dec. 4, 1987.
    Reargument Denied Jan. 29, 1988.

      Peter D. Goldberger, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and BECK and HESTER, JJ.
   HESTER, Judge:

Following a jury trial, appellant Robert Cauto was convicted of six sex offenses against three juvenile males, all of whom were under the age of sixteen at the time of the incidents. In this appeal from judgment of sentence, appellant challenges the trial court’s refusal to allow him to cross-examine two of the complainants for bias based on their juvenile records, the court’s interpretation of the criminal solicitation statute, trial counsel’s effectiveness, and other trial rulings. We agree that the prohibition against cross-examination with respect to the juvenile records of two complainants requires the granting of a new trial on the four charges pertaining to them; we affirm the remaining judgments of sentence.

Bills 4178 and 4179 pertained to fifteen-year-old J.R.; Appellant was convicted of solicitation to commit involuntary deviate sexual intercourse and corruption of the morals of a minor, based on a telephone call during which he offered to perform oral sex on the boy. Bills 4182 and 4183 resulted in convictions of corruption of a minor and involuntary deviate sexual intercourse (IDSI), based on evidence that appellant engaged in oral sex with R.H., who had a juvenile record, while the boy was between the ages of thirteen and sixteen. Numbers 4185 and 4186 involved fifteen-year-old D.D. Appellant was convicted of solicitation to commit sexual abuse of children by photograph or film and corruption of a minor, based on evidence that he showed the boy two photographs, one showing a male masturbating and another depicting two males engaged in oral sex, and asked D.D. to pose for such photographs. At the time of trial, D.D. had charges pending in juvenile court.

Following the denial of post-verdict motions, appellant was sentenced to concurrent terms of imprisonment. The longest, imposed on bills 4178 and 4183, was three to six years.

The issues are: 1) whether the trial court erred in refusing to allow defense counsel to cross-examine two of the complainants for bias; 2) whether defense counsel was ineffective in failing to object to the jury charge (a) omitting an element of one offense, and (b) stating that the jury might find the defendant guilty of another offense on a basis for which there was no evidence; 3) whether judgment should have been arrested on the charges of criminal solicitation; 4) whether the trial court erred in restricting cross-examination designed to show that certain prejudicial evidence was not seized from the defendant’s home; 5) whether the trial court erred in admitting the defendant’s statement, given as the fruit of an involuntary stationhouse detention, and was trial counsel ineffective for failing to raise that theory, although the trial court addressed it; 6) whether the trial court erred in permitting the prosecutor to misstate and assume facts in cross-examination and was counsel ineffective for failing to object to the prosecutor’s closing argument of critical “facts” not in evidence; 7) whether the trial court erred in setting a sentencing guideline offense gravity score for IDSI of nine rather than five (and eight rather than four for soliciting IDSI), when the court made no finding of the facts underlying the difference in grading; and 8) whether the trial court erred in sentencing outside the guidelines for soliciting sexual abuse of a child by photography.

Appellant’s first argument is that the trial court erred in refusing to allow complainants D.D. and R.H. to be cross-examined about their juvenile records in order to establish their potential bias. At the time of appellant’s trial, D.D. had charges pending against him in juvenile court, and R.H. was on probationary status as a juvenile delinquent. The trial court recognized in its opinion that it should have allowed defense counsel to cross-examine D.D. about the pending juvenile charges in order to show bias, but because the notice of appeal had already been filed, the court was without power to grant relief. The court, however, declined to concede as error its refusal to allow the cross-examination of R.H. about his probationary status, concluding that the requested cross-examination was not to establish bias, but rather to impeach his credibility generally, which is prohibited by the Juvenile Act, 42 Pa.C.S. § 6354(b). See Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973); Commonwealth v. Mines, 321 Pa.Super. 529, 468 A.2d 1115 (1983).

The Supreme Court of Pennsylvania recently discussed when a criminal defendant should be permitted to cross-examine a prosecution witness about his criminal record in order to show bias. In Commonwealth v. Evans, 511 Pa. 214, 224-25, 512 A.2d 626, 631-32 (1986), the court held:

[Wjhenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it.

The Commonwealth argues that the complainants’ status as juvenile victims should immunize them from the application of the Evans rule. We cannot agree. The state’s interest in protecting the confidentiality of a juvenile’s record must yield to the accused’s constitutional right to cross-examine an adverse witness to show bias. Commonwealth v. Bryner, 351 Pa.Super. 196, 198, 505 A.2d 335, 336 (1986).

Applying the Evans rule here, the trial court erred in denying appellant an opportunity to demonstrate the potential bias of the two juvenile complainants. In the instance of D.D., the potential for bias is evident from the fact that at the time of trial, he had charges pending against him in juvenile court. Similarly, the probationary status of R.H. as a juvenile delinquent, subject to the ongoing supervision of the juvenile court, presented an apparent potential for biased testimony.

The Commonwealth, however, contends that any error in restricting appellant’s cross-examination of the two witnesses is harmless. We do not agree. The testimony of D.D. and R.H. was critical to proving the guilt of appellant; their credibility was. a controlling issue in the trial. It is difficult to conceive of an instance in which the denial of the opportunity to cross-examine an adverse witness to show bias could be more prejudicial. This error requires the grant of a new trial on bills 4182, 4183, 4185, and 4186.

The second issue is whether the trial court erred in the instructions to the jury. Appellant claims that the instructions contained two separate errors. With respect to bill 4185, soliciting sexual abuse of a child by photography, the court omitted an element of the offense, to wit, that the depiction be made for the purpose of sexual stimulation or gratification of the viewer. With respect to bill 4186, corruption of the morals of D.D. by asking him to pose for sexually explicit photographs, the court instructed the jury that it could convict appellant if it found that appellant had asked D.D. to engage in sexual intercourse, though there was no evidence of any such invitation. The trial court, in its Pa.R.A.P. 1925 opinion, acknowledged that both instructions were erroneous. As we are remanding the case for retrial on the two bills which are involved, repetition of these errors should be avoided on retrial.

The next issue is whether the evidence was insufficient to sustain the guilty verdict on the two solicitation charges. Appellant argues that the offense of solicitation requires an attempt to cause another person to commit a crime. He argues that if the boys had acceded to his advances, they would not have committed criminal offenses, but would have been victims of crimes.

Title 18 Pa.C.S. § 902(a) provides:

902. — Criminal solicitation.
(a) Definition of solitation. — A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.

(Emphasis added). Webster’s Ninth New Collegiate Dictionary (1985) defines “complicity” as “association or participation in or as if in a wrongful act.” Appellant’s conduct violates the clear prohibition of the emphasized portion of the statute. He requested J.R. and D.D. to engage in specific conduct which would establish the boys’ complicity, or participation, in the commission of the crimes of involuntary deviate sexual intercourse and sexual abuse of children by photograph or film. Had the boys acceded to appellant’s advances, their conduct assuredly would have established their complicity in appellant’s criminal behavior. The statute does not require criminal behavior by the person solicited. What it requires is complicity, or participation, in the commission of a crime.

Commonwealth v. Wilson, 296 Pa.Super. 264, 268, 442 A.2d 760, 762, affd 498 Pa. 529, 447 A.2d 1381 (1982), is directly on point and squarely controls this case. Judge Beck, writing for the court, stated:

The evidence adduced at trial in the instant case clearly supports the finding that the appellants solicited the police officers to engage in specific conduct which would establish the officers’ complicity in the commission of the crime of prostitution — engaging in sexual activity as a business.
Appellants argue that since the police officers would not be criminally liable for the underlying crime of prostitution, appellants could not be found guilty of soliciting them to commit that crime. Appellants misread the statute. Under the clear meaning of the criminal solicitation statute, an individual who “encourages or requests another person to engage in specific conduct which would establish his complicity ...” in the commission of the crime violates the statute. There is no requirement in the statute that the one being solicited be criminally chargeable for the underlying crime. The statute addresses itself to the act of. the solicitor in obtaining another individual’s “complicity” in a crime.
Prostitution requires participation of a partner. The appellants in this instance, at a minimum, invited the police officers to be those partners. At the point where the officers’ complicity in the crime was brought about by the act of the appellants, the appellants violated the criminal solicitation statute.

(Footnotes omitted; emphasis added). Wilson thus makes it clear that the one being solicited need not be criminally chargeable for the underlying crime.

Appellant fallaciously attempts to distinguish Wilson with an irrelevant discussion of police officers’ immunity. Although it may have been true that the officers were immune to prosecution or conviction because they were acting in their law enforcement capacity, as appellant argues, the extraneous proposition forms no part of the reasoning in Wilson. The Wilson court took pains to explain that the crime of “[prostitution requires participation of a partner. The appellants in this instance, at a minimum, invited the police officers to be those partners.” Wilson, supra, 296 Pa.Superior Ct. at 268, 442 A.2d at 762. The rationale of Wilson is quite clear: the police officers, had they acceded to the prostitutes’ advances, would not have been guilty of engaging in sexual activity as a business — the crime of prostitution — but they would have acted as the necessary partners without whom the crime of prostitution cannot be committed.

Appellant also attempts to distinguish Wilson with the further irrelevancy that if the police officers had not been immune, they could have been prosecuted for patronizing a prostitute, whereas if J.R. had acceded to appellant’s advances, he would not have been guilty of IDSI, but a victim only. That the person solicited be liable for commission of a different crime is no more necessary than that he be liable for the underlying crime in order for the solicitor be guilty of criminal solicitation under 18 Pa.C.S. § 902(a). It is simply necessary that the person solicited be asked to participate in conduct which would constitute a crime by the solicitor. As the Wilson court correctly stated, “The statute addresses itself to the act of the solicitor in obtaining another’s ‘complicity’ in a crime,” Wilson, supra, at 268, 442 A.2d at 762 (emphasis added); it does not address the potential criminal liability of the person solicited.

There is no valid distinction between Wilson and this case. Deviate sexual intercourse, like prostitution, requires participation of a partner. The police officers in Wilson were not solicited to commit the crime of prostitution but to participate in the sexual activity without which the crime of prostitution could not be committed. Likewise, J.R. was not requested to commit the crime of involuntary deviate sexual intercourse, but was asked to participate in appellant’s conduct without which appellant could not have committed involuntary deviate sexual intercourse. This is precisely what is prohibited by 18 Pa.C.S. § 902(a): a request to engage in specific conduct which would constitute complicity in the commission of an underlying offense. We therefore affirm the conviction on bill 4178.

The same reasoning applies to bill 4185, which charged appellant with soliciting fifteen-year-old D.D. to commit sexual abuse of children by photograph or film. Had the boy agreed to appellant’s request that he pose for photographs depicting masturbation and oral sex, appellant would have been guilty of violating 18 Pa.C.S. § 6312, prohibiting sexual abuse of children. The statute states:

§ 6312. Sexual abuse of children
(a) Definition. — As used in this section “prohibited sexual act” means sexual intercourse, anal intercourse, masturbation, bestiality, sadism, masochism, fellatio, cunnilingus and any other sexual activity including nudity if such sexual activity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.
(b) Photographing or filming sexual acts. — Any person who causes or knowingly permits a child under the age of 16 years to engage in a prohibited sexual act or in the simulation of such act is guilty of a felony of the second degree if such person knows, has reason to know or intends that such act may be photographed or filmed. Any person who photographs or films a child under the age of 16 years engaging in a prohibited sexual act or in the simulation of such an act is guilty of a felony of the second degree.

Sexual abuse of children, like prostitution and involuntary deviate sexual intercourse, is an offense which requires the participation of a partner. The gravamen of the solicitation charge against appellant was not that he solicited the boy to commit the crime of sexual abuse of children, i.e., to abuse himself, but that appellant requested him to participate in the wrongful acts without which appellant could not have committed the underlying offense. The conduct charged against appellant would constitute a violation of the criminal solicitation statute. Due to the court’s failure to permit cross-examination of D.D. as to his juvenile record, however, we vacate the judgment of sentence imposed on bill 4185 and remand for a new trial, as discussed above.

The fourth issue is whether the court erred in restricting appellant’s cross-examination of one of the officers involved in the search of his home. The court sustained the prosecutor’s objection to the following question: “Now, on September 11, 1984 were there a number of other people arrested involved, you believe, in sex crimes?” Appellant argues that he was denied the opportunity to demonstrate an alternative source for the evidence found in his home. By establishing that many men had been arrested and large quantities of pornography had been seized, appellant apparently hoped to convince the jury that the evidence was fabricated or planted by the police.

A trial court has broad discretion in ruling on the parameters of cross-examination, and those rulings will not be reversed absent a clear abuse of discretion or error of law. Commonwealth v. Greene, 469 Pa. 399, 366 A.2d 234 (1976). The record fails to establish any such abuse or error here. The court’s ruling on the proffered question in no way prevented appellant from establishing that alternative sources for the evidence existed, or that the police had the opportunity to fabricate or plant the evidence. Appellant was merely precluded from showing such opportunity through irrelevant questioning.

The fifth issue is whether appellant’s inculpatory statement to the police should have been suppressed as the fruit of an involuntary stationhouse detention. When reviewing a suppression claim, the reviewing court is bound by the facts found in the record, and in determining this, considers only the evidence of the prosecution’s witnesses, and may reverse the suppression court only if the legal conclusions drawn from those facts are in error. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111, cert, denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985); Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986).

The facts as found by the trial court and supported by the record are as follows: On July 26, 1984, officers of the Philadelphia Police Department obtained a warrant to search appellant’s home. The officers were admitted into the home by appellant who was shown the search warrant and informed why the officers were there and why a search was to be conducted. The officers executed an orderly search and seized several items. Upon completing the search, the officers told appellant that he would not be arrested that evening (he was actually arrested on September 11, 1984). He agreed to accompany the officers to headquarters to be interviewed. At no time was appellant handcuffed or physically restrained. He was not physically ill or under the influence of alcohol or drugs. He was a high school graduate who had attended divinity school and classes for business law and he appeared to understand everything that was said to him. After being transported to police headquarters and given Miranda warnings, he gave the inculpatory statement which he contends should be suppressed as the fruit of an involuntary stationhouse detention.

Based upon these findings, the suppression court concluded that appellant had not been arrested but rather went with the police voluntarily to headquarters. In view of all circumstances surrounding the incident, we cannot say that a reasonable person would have believed that he was not free to leave. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978). There was therefore no error in the denial of appellant’s suppression motion.

The sixth issue is an allegation of three instances of prosecutorial misconduct. First, appellant contends that the prosecutor misrepresented his testimony concerning the number of photographs which were seized from his house. Second, the prosecutor distorted appellant’s use of the word “kids.” Third, the prosecutor argued facts outside the record, and trial counsel was ineffective in failing to object.

The first claim was specifically waived by prior counsel at the post-verdict motions hearing, and therefore it is not preserved for review. As to the second claim, trial counsel failed to raise any objection to the allegedly distorted use of the word; therefore, this claim was not preserved for review. Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173 (1981); Commonwealth v. Myer, 340 Pa.Super. 176, 489 A.2d 900 (1985). Appellant also raises the issue of whether counsel was ineffective for failing to object, but he does not include this issue in his statement of questions presented. This issue, therefore, is not properly before this court. Commonwealth v. Duden, 326 Pa.Super. 73, 473 A.2d 614 (1984). The third claim, counsel’s ineffectiveness for failing to object to the prosecutor’s argument, is properly before us.

In reviewing a claim of ineffective assistance of counsel, a two-pronged analysis is utilized: we determine, first, whether the issue underlying the ineffectiveness claim has arguable merit, and second, whether the course chosen by counsel had some reasonable basis designed to promote appellant’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). If counsel was ineffective, appellant must also establish that the ineffectiveness was so prejudicial that he did not receive a fair trial. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Assuming that trial counsel was ineffective in not objecting to the prosecutor’s argument, we nevertheless agree with the trial court that counsel’s ineffectiveness was not so prejudicial as to deprive appellant of a fair trial. The prosecutor argued facts referring to photographic equipment being taken to Florida. Any prejudicial effect of the error here is so insignificant that it is clear that the error could not have contributed to the verdict. This is especially so in light of the trial- court’s repeated instructions to the jury that the statements of counsel were not evidence, and that the jury’s recollection of the testimony was controlling. See Pierce, id., 515 Pa. at 160, 527 A.2d at 977.

Finally, appellant raises two issues with respect to his sentencing. He claims that the court selected the offense gravity score under the sentencing guidelines for two offenses by assuming facts not established at trial or at the ■ sentencing hearing, so that he was sentenced under improperly computed guideline ranges, in violation of Commonwealth v. Drumgoole, 341 Pa.Super. 468, 474-75, 491 A.2d 1352, 1355 (1985). Appellant also claims that the trial court, in imposing a sentence more severe than the guideline range on bill 4185, failed to state adequate reasons for the deviation, an apparent violation of Commonwealth v. Terrizzi, 348 Pa.Super. 607, 616, 502 A.2d 711, 716 (1985) and 42 Pa.C.S. § 9721(b).

We note initially that these two issues are challenges to discretionary aspects of sentencing. Commonwealth v. Krum, 367 Pa.Super. 511, 513, 514, 533 A.2d 134, 135 (1987) (en banc). The requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) therefore apply. Appellant failed to include in his brief “a concise statement of the reasons relied upon for allowance of appeal,” as required by Rule 2119(f) and Tuladziecki. The requirement, however, is procedural, not jurisdictional. Krum, supra, 367 Pa.Super. at 517, 533 A.2d at 137. Any objection to the absence of the concise statement is waived by the Commonwealth’s failure to complain of the defect. Id., 367 Pa.Superior Ct. at 518, 533 A.2d at 138. We must therefore determine whether there is a substantial question that the sentence imposed is inappropriate under the entire Sentencing Code before we may address the merits of the issues. 42 Pa.C.S. § 9781(b); Krum, supra, 367 Pa.Superior Ct. at 519, 533 A.2d at 138.

Both issues relate to proper application of the sentencing guidelines, and we interpret the holding in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987), to require the conclusion that no substantial question exists which permits us to review the merits of appellant’s challenges to his sentence. Sessoms held that the sentencing guidelines are void due to their adoption in an unconstitutional manner and are “of no force at all.” Id., 516 Pa. at 380, 532 A.2d at 782. Appellant requests resentencing under the sentencing guidelines, which are void. He makes no claim that the sentence is in any way inappropriate under the remaining valid provisions of the Sentencing Code. We are forced to conclude that no substantial question exists as to whether the sentence imposed is inappropriate under the Sentencing Code as a whole. We therefore decline to review the merits of appellant’s challenges to the discretionary aspects of his sentence. 42 Pa.C.S. § 9781(b).

In accordance with the foregoing opinion, we order the following disposition. Judgment of sentence at bills 4178 and 4179 affirmed; judgment of sentence at bills 4182, 4183, 4185 and 4186 vacated and case remanded for new trial; jurisdiction relinquished.

CIRILLO, President Judge, filed a concurring opinion.

CIRILLO, President Judge,

concurring:

I join in the majority’s analysis and disposition of issues one through six. With respect to the final two issues, appellant’s sentencing claims, I disagree only with the majority’s statement that Pa.R.A.P. 2119(f) is a procedural rather than a jurisdictional requirement.

In Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), the supreme court made it clear that strict compliance with Rule 2119(f) is necessary for an appellant to invoke the jurisdiction of the superior court. Id., 513 Pa. at 512, 522 A.2d at 19. Being a jurisdictional requirement, a violation of Rule 2119(f) is not waived by the failure of the opposing party to object to the violation. Rohr v. Keystone Insurance Co., 244 Pa.Super. 179, 181, 439 A.2d 809, 810 (1982).

Applying the supreme court’s mandate of Tuladziecki to the case herein, the appellant’s non-compliance with Rule 2119(f) creates a lack of jurisdiction regardless of the appellee’s failure to object to the non-compliance. Lacking jurisdiction, this court has no authority to examine appellant’s claim to determine if he presented a substantial question warranting our consideration of his sentencing claims.

Based on the foregoing discussion, I would find appellant’s sentencing claims waived.


author: HESTER, Judge: BECK, Judge,

text:
    535 A.2d 611
    COMMONWEALTH of Pennsylvania v. John HEIDELBERG, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1987.
    Filed Dec. 24, 1987.

      James K. Vogel, Public Defender, Erie, for appellant.
    Paul Susko, Assistant District Attorney, Erie, for Com., appellee.
    Before BECK, JOHNSON and HESTER, JJ.
   HESTER, Judge:

On December 9, 1986, appellant, John Heidelberg, was convicted following a nonjury trial of possession of a controlled substance. He was sentenced on January 29, 1987, to a fine, costs and seven to thirty days imprisonment. Appellant contends that the trial court erred in not suppressing evidence obtained as the result of an allegedly illegal search warrant. We affirm.

On June 20, 1986, the Erie County police obtained a search warrant to search James Heidelberg, his home, and “all occupants therein.” The probable cause affidavit sets forth the following facts and circumstances justifying the search of the described persons and premises. A reliable informant observed James Heidelberg selling cocaine “to other persons at [the] house.” He also observed “a large quantity of cocaine” for sale at the residence and in James Heidelberg’s possession within the preceding twenty-four hours. Other reliable informants corroborated the fact that James Heidelberg sold controlled substances in his house. A night search was authorized as a result of the averment that the evidence could be easily destroyed or moved if police surveillance were detected.

The following stipulated facts surrounding the execution of the warrant were submitted at the suppression hearing. Erie police executed the search warrant at 12:45 a.m. on June 21, 1986. When appellant answered the door, police saw three males seated around a coffee table upon which the following objects were lying: a propane tank commonly used for freebasing cocaine, a razor blade, a marijuana pipe, and a patina of white powder. The police searched all the individuals present and found a small quantity of hashish on appellant. A small quantity of cocaine was found on one of the other males, but no other controlled substances were discovered on the premises.

The Commonwealth has stipulated that appellant’s search was conducted solely pursuant to the authority contained in the warrant for police to search “all occupants” of the apartment. N.T., 10/3/86, at 5-6. This stipulation and the fact that the Commonwealth argues no other basis to justify the search have foreclosed us from considering whether the search could be upheld on other grounds.

We must therefore determine whether a search warrant authorizing a search of “all the occupants” at a given location violates the fourth amendment’s particularity requirement that “no Warrants shall issue, but upon probable cause ... particularly describing the place to be searched, and the persons or things to be seized.” It is a question that has never been addressed by an appellate court in this jurisdiction or by the United States Supreme Court.

There are two approaches in analyzing the constitutionality of “all persons present” warrants. One is to strike such warrants as general warrants repugnant to the fourth amendment’s specificity requirement. E.g., Johantgen v. Commonwealth, 571 S.W.2d 110 (Ky.App. 1978).

We believe the better-reasoned approach, and the one adopted by the majority of other jurisdictions, is found in the cases which analyze each such warrant individually in order to determine whether an “all persons present” warrant was justified under the particular circumstances present when the warrant issued. Illustrative of this approach are two New Jersey cases where opposite conclusions were reached with respect to the different warrants under consideration.

State v. DeSimone, 60 N.J. 319, 288 A.2d 849 (1972), contains one of the first discussions of this issue. The warrant directed the search of a described automobile and “all persons found therein,” for evidence of illegal gambling. Defendant was an occupant of the car that was the subject of the warrant and lottery slips were found in his possession. Chief Justice Weintraub observed:

On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend upon the facts. A showing that lottery slips are sold in a department store or an industrial plant obviously would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation. On the other hand, a showing that a dice game is operated in a manhole or in a barn should suffice, for the reason that the place is so limited and the illegal operation so overt that it is likely that everyone present is a party to the offense. Such a setting furnishes not only probable cause but also a designation of the persons to be searched which functionally is as precise as a dimensional portrait of them.
As to probable cause, it must be remembered that the showing need not equal a prima facie case required to sustain a conviction. No more is demanded than a well-grounded suspicion or belief that an offense is taking place and the individual is party to it____ And, with regard to the Fourth Amendment demand for specificity as to the subject to be searched, there is none of the vice of a general warrant if the individual is thus identified by physical nexus to the on-going criminal event itself. In such a setting, the officer executing the warrant has neither the authority nor the opportunity to search everywhere for anyone violating a law. So long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant, presence becomes the descriptive fact satisfying the aim of the Fourth Amendment. The evil of the general warrant is thereby negated. To insist nonetheless that the individual be otherwise described when circumstances will not permit it, would simply deny government a needed power to deal with crime, without advancing the interest the Amendment was meant to serve.

Id. at 321-22, 288 A.2d at 850 (emphasis added) (citation omitted).

The court then determined that the search warrant in that case was constitutionally valid since the affidavit established that the automobile was being regularly used in gambling operations. This made it unlikely that anyone not involved in the gambling operation would have been permitted in the vehicle to observe the illegal activities.

This case can be contrasted with State v. Sims, 75 N.J. 337, 382 A.2d 638 (1978), where, using the same analysis adopted in DeSimone, the New Jersey Supreme Court struck down a warrant authorizing the search of a service station “and any persons found therein” for gambling paraphernalia. The affidavit supporting the warrant implicated the service station only tangentially in the gambling operation inasmuch as only one telephone bet had been placed there, and, further, the warrant contained no affirmation that gamblers had been observed on the premises placing bets. On this evidence, the court determined that the judge issuing the warrant had no legitimate basis for concluding that probable cause existed to believe that all persons who may have been found at the service station would be engaged in illegal gambling activities.

State v. Hinkel, 365 N.W.2d 774 (Minn.1985), in conjunction with State v. Robinson, 371 N.W.2d 624 (Minn.App. 1985), also offer an illustration of the majority approach. Hinkel involved a warrant authorizing a night search of a house and “all persons on the premises” for liquor and gambling paraphernalia. The house had no liquor license; neighbors had complained about late night activity in the house; and an informant had purchased liquor illegally at the establishment. The Minnesota Supreme Court ruled that probable cause existed for issuance of the authority to search all persons present at the house, observing that there was little likelihood that anyone would be in the house at the late hour except to participate in the illegal consumption of liquor.

In Robinson, the Minnesota Court of Appeals, applying Hinkel, struck down a warrant authorizing a drug search of a legally-operating bar and “all persons” in the bar. The warrant was executed during normal operating hours when fifty to eighty patrons were present. Distinguishing Hinkel, the court stated that there was little likelihood that everyone in a licensed bar during normal business hours would be involved in criminal activity when, accordingly to the affidavit in the search warrant, only isolated drug transactions had been observed on the premises. Also compare People v. Easterbrook, 43 App.Div.2d 719, 350 N.Y.S.2d 442 (1973), affd, 35 N.Y.2d 913, 364 N.Y.S.2d 899, 324 N.E.2d 367 (1979) (where affidavit supporting warrant alleged that heroin was used and sold in an apartment, criminal activity was of such a nature and the premises so limited that it was likely everyone present was party to the offense; warrant authorizing search of apartment and “other persons present” was upheld) with People v. Paul, 96 Misc.2d 1085, 410 N.Y.S.2d 516 (1978) (“all persons present” warrant unjustified where objective of search was weapons which were registered to owner of apartment and where it was not likely that weapons would be on any person present at owner’s apartment other than him).

The Massachusetts Supreme Court in Commonwealth v. Smith, 370 Mass. 335, 348 N.E.2d 101, cert, denied. 429 U.S. 944, 97 S.Ct. 364, 50 L.Ed.2d 314 (1976), analyzed a situation strikingly similar to the one at issue. Heroin had been found on defendant, who was searched pursuant to authority granted in a warrant to search “any person present” at an apartment. The warrant was issued on an informant’s affidavit that he had observed heroin sales twice within ten days at the apartment, as well as police surveillance during which police saw known drug traffickers entering and exiting the apartment. Defendant’s search had been conducted solely pursuant to the warrant, and the court rejected his fourth amendment challenge to the search:

We conclude that, in the circumstances of this case, there was no error in the judge’s denial of the motion to suppress. The affidavit and the warrant amply demonstrated that, in all the circumstances, there was probable cause to believe that any person present on the premises described in the search warrant was involved in illegal trafficking in heroin. While we do not mean to derogate in any way from the principle that the law requires a particular description of the persons to be searched pursuant to a warrant, we think that, on the facts of this case, the defendant was sufficiently described. It is clear from our discussion below that only in special circumstances such as those shown in the affidavit here will a search warrant aimed principally at the premises also be held to include validly the search of any person present.

Id., 348 N.E.2d at 103. The court ruled that such warrants should be strictly scrutinized, but, in upholding the warrant, stressed the nature of the contraband, which is easy to hide, the modest size of the apartment, and the fact that drug sales to numerous people in the apartment had been observed. Cf. Beeler v. State, 677 P.2d 653 (Okla.Crim. 1984) (where there was no indication that the premises to be searched were frequented by drug buyers or that anyone had been seen purchasing drugs on the premises, warrant authorizing search of all persons in apartment was invalid since there was no probable cause to believe any and all persons in the apartment would be involved in drug trafficking).

We reject appellant’s contention that Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), requires the warrant to be struck down. The warrant in Ybarra authorized the search of a tavern and the bartender of the tavern for drugs. It was not an “all persons present” warrant. It was issued pursuant to an informant’s affidavit that he had seen the bartender with packets of heroin on ten occasions and that the bartender had told the informant he would have heroin for sale on March 1, 1976. On that date, police executed the warrant, searched Ybarra, who was a patron of the tavern, and found heroin on him. The Supreme Court refused to uphold the search, which was not authorized pursuant to the warrant, as a weapons search. It further determined that the police had no probable cause to search Ybarra on other grounds:

There is no reason to suppose that, when the search warrant was issued on March 1, 1976, the authorities had probable cause to believe that any person found on the premises of the ... [t]avern, aside from [the bartender] would be violating the law. The search warrant complaint did not allege that the bar was frequented by persons illegally purchasing drugs. It did not state that the informant had ever seen a patron of the tavern purchase drugs from [the bartender] or from any other person. Nowhere, in fact, did the complaint even mention the patrons of the ... [t]avern.

Id. at 91, 100 S.Ct. at 341-42, 62 L.Ed.2d at 245 (footnote omitted).

Thus, it is clear that Ybarra did not involve a situation analogous to the case at issue. Here, the premises to be searched were not open to the public. Moreover, a confidential and reliable informant had actually observed the owner selling cocaine to other persons at the house. Additional informants corroborated that the owner was “dealing” controlled substances from the house and consequently must have observed drug sales to third parties on the premises. Most important, however, is the fact that within twenty-four hours of issuance of the warrant, a “large quantity of cocaine” had been observed in the house and was available for sale. Under these circumstances, it is unlikely that the owner would entertain in his home anyone other than those engaged in illegal drug trafficking.

Under the DeSimone analysis, it is therefore clear that the search warrant was properly issued. We do not sanction the blind issuance of “all persons present” warrants and have scrutinized strictly the one under consideration. However, the facts contained in this affidavit include: 1) the observation of a significant amount of cocaine available for sale at the residence within twenty-four hours of the issuance of the warrant; 2) observations by three informants of drug sales at the residence; 3) a private residence to be searched; and 4) contraband which can easily be hidden on the body. Given these facts, we uphold the magistrate’s determination that probable cause existed to believe that anyone at the residence on the night in question would be involved in illegal drug-related activities. We therefore hold that the warrant was valid under the fourth amendment to the United States Constitution.

Judgment of sentence affirmed.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I agree with the majority in rejecting the approach, used in some states, which strikes as invalid all warrants listing “all persons present” as objects of a search. The better-reasoned approach, adopted by the majority, analyzes each warrant under the particular facts present upon its issuance to determine if the “all persons present” language is justified and necessary. Such language is justified only if a sufficient physical nexus is established between the persons likely to be found in the place to be searched and the illegal activity alleged to be occurring there. That is, we must examine the nature of the place to be searched and evaluate whether there is probable cause that anyone found at that place would be involved in the criminal activity. See State v. Robinson, 371 N.W.2d 624 (Minn.App.1985); State v. Sims, 75 N.J. 337, 382 A.2d 638 (1978); State v. DeSimone, 60 N.J. 319, 288 A.2d 849 (1972). This requirement of a sufficient physical nexus prevents such warrants from becoming general warrants and authorizing dragnet searches. Still, such warrants must be viewed with disfavor, as they harbor a danger of containing the vice of a general warrant. The facts present at the issuance of each such warrant must be scrutinized strictly on a case-by-case basis to ensure that the specificity requirement of the fourth amendment is not violated.

The instant case just barely satisfies that requirement. The affidavit recited that reliable informants observed one James Heidelberg selling cocaine from his residence and that a large amount of cocaine was observed at the residence within the preceding twenty-four hours. Given that a significant amount of cocaine available for sale was observed at the residence, there was sufficient probable cause to believe that anyone found in the residence during the search would be involved in the narcotics transactions or use. The presence of a large quantity of cocaine distinguishes this case from one in which only the sale of drugs from a residence was alleged. Warrants authorizing the search of “all persons present” at a person’s home must be examined with extra care. In the case of a dwelling there is a great likelihood that an innocent person could happen to visit the occupant. See State v. DeSimone, 60 N.J. at 323, 288 A.2d at 859. A home, which traditionally holds a place of honor under the fourth amendment, is not so physically limited that it is likely that anyone present at the home of a drug dealer would be involved in his or her illegal activity. Also, small quantities of drugs could be hidden from innocent visitors or occupants. Thus, the amount of drugs and sales alleged to have been observed immediately preceding the issuance of the warrant in question provides the probable cause in this case to justify the issuance of that warrant.

Therefore, I would join the majority in affirming appellant’s judgment of sentence.

      . The Pennsylvania Constitution similarly provides that "no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be.” Pa.Const. art. I, § 8. Our analysis of the fourth amendment thus applies with equal force to this provision of the Pennsylvania Constitution.

      . The Commonwealth’s argument that Commonwealth v. Duncan, 257 Pa.Super. 277, 390 A.2d 820 (1978), is controlling precedent on the issue is misguided. Duncan was an en banc decision of six judges, who were equally divided. Three judges discussed the issue, but the discussion is clearly dictum.

      . General comments on this issue are found in W. LaFave, Searches and Seizures § 4.5(e) at 230-33 (1987). LaFave observes that "some courts have condemned this form of warrant as ‘a general or “blanket” search warrant, which would authorize the indiscriminate search of a large number of people without naming or describing any of them.’ ” Id. at 230, quoting Crossland v. State, 266 P.2d 649 (Okl.Crim. 1954).
      LaFave rejects this analysis as unjustified in all cases and discusses the approach of Chief Justice Weintraub in State v. DeSimone, 60 N.J. 319, 288 A.2d 849 (1972), the approach we adopt in the text above. LaFave characterizes the DeSimone approach as "[ujnquestionably ... correct.” Id. at 231.

      . See W. LaFave, Searches and Seizures, supra, at 232; 49 A.L.R.2d 1209; 68 Am.Jur.2d, Searches and Seizures § 79.

      . Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973); Commonwealth v. Reece, 437 Pa. 422, 263 A.2d 463 (1970); Commonwealth v.

        Eichelberger, 352 Pa.Super. 507, 508 A.2d 589 (1986), and Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980), are similarly not on point inasmuch as all dealt with warrants not describing the person who was actually searched nor authorizing the search of all persons present.

      . The Court specifically noted that it was not considering "situations where the warrant itself authorizes the search of unnamed persons in a place and is supported by probable cause to believe that persons who will be in the place at the time of the search will be in possession of illegal drugs." Ybarra v. Illinois, 444 U.S. 85, 93 n. 4, 100 S.Ct. 338, 343 n. 4, 62 L.Ed.2d 238, 247 n. 4 (1979).