author: BROSKY, Judge. TAMILIA, Judge,

text:
    614 A.2d 1161
    In re the ADOPTION OF B.G.S. Appeal of B. Gordon NELSON, III and Kennedy B. Nelson, His Wife.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1992.
    Filed Aug. 17, 1992.
    Reargument Denied Oct. 29, 1992.

      Harry W. Turner, Pittsburgh, for appellants.
    Robert J. Fall, Pittsburgh, for B.G.S., participating party, (at 1119).
    Before TAMILIA, HUDOCK and BROSKY, JJ.
   BROSKY, Judge.

B. Gordon Nelson, III and Kennedy B. Nelson (“the Nelsons”), husband and wife, have filed consolidated appeals, at No. 00885 Pittsburgh 1991 and No. 01119 Pittsburgh 1991, from the August 15, 1991 and September 27, 1991 orders of the trial court. The aforementioned orders denied the Nelsons’ petition to terminate the parental rights of appellee and granted appellee’s petition to proceed in forma pauperis.

In the appeal docketed at No. 00885 Pittsburgh 1991, the Nelsons’ issues are as follows:

I. Is not a new trial required in a termination of parental rights case where the trial court rendered its decision without conducting a full and comprehensive hearing?
II. Is not a new trial required where a birth mother’s mental capacity to parent was at issue, but the lower court refused to admit into evidence and consider the records of her recent psychiatric hospitalization and emotional counseling?
III. Is not a new trial required where the trial judge rejected all expert psychologic [sic] testimony and instead substituted his own courtroom diagnosis as the basis of his decision?
IV. Is not a new trial required where the trial court refused to admit or consider evidence of the child’s unique circumstances and needs as related to parental capacity?

Appellants’ Brief at 3. We affirm the order of the trial court.

In the appeal docketed at No. 01119 Pittsburgh 1991 the Nelsons’ issues are as follows.

1. Whether it is an abuse of discretion for a court to summarily grant in forma pauperis status without conducting an evidentiary hearing when the truth of the allegation in support thereof are called into question?
2. Whether it is an error for a court to grant in forma pauperis status without making the requisite finding that the movant is unable to pay all or some of the costs of the proceeding without impairing his ability to obtain the necessities of life?

Appellants’ Brief at 3. We affirm the order of the trial court.

APPEAL AT NO. 885 PITTSBURGH 1991.

On December 14, 1989 nineteen year-old appellee gave birth to BGS. Appellee was unmarried and living with her parents. The seventeen year-old birth father, who was a student, did not intend to assume any responsibility for the financial and emotional care of BGS. Prior to the birth of BGS appellee was urged, by her parents and the birth father, to permit BGS to be adopted. Appellee’s father told her that she would not be permitted to raise BGS in appellee’s father’s home. N.T., 11/26, 28/90, 12/4, 13, 19/90, at 83, 84. In October, 1989 appellee’s father arranged a meeting between appellee and an attorney, who is not counsel in this case. Appellee was of the impression that the attorney was representing her and that she was exploring the possibility of placing BGS for agency adoption or private adoption. Id. at 737, 738. Appellee testified that the attorney stated to her that he would “take care” of her and that the options that she was contemplating were proper. Id.

Despite the options that appellee was contemplating her intention during the latter months of 1989 was to retain and raise BGS in the home of her paternal grandparents. Id. However, appellee’s plans to move into her grandparent’s home were terminated; until her grandparents decided that appellee could not reside with them she wanted to retain and raise BGS. Id. at 740. Appellee met with the attorney in December, 1989 and stated that even though she and BGS would have no place to live she still desired to keep BGS. Appellee testified that at this point the attorney chastised her for “changing her mind” since it was already December and he had invested a substantial portion of time searching for prospective adoptive parents for BGS. Id. at 741. At that time appellee believed that the attorney was still representing her since he “gave her a hug and told [her] that he was taking care of her.” Id. at 742.

On December 14, 1989 BGS was born. At that time appellee felt that she “had to go through with the adoption.” Id. at 744. Appellee testified that the attorney visited the hospital one and one-half days after the birth of BGS. Appellee also testified that the attorney told her that she could not see the baby but a doctor told her that she could not be stopped from seeing the baby; appellee did see BGS in the hospital. Id. at 746, 747. The attorney presented appellee with a consent form that, when signed by appellee, would enable him to remove BGS from the hospital. Appellee was troubled by the language in the form since it stated that she “desired” that BGS be removed from the hospital and that her consent was “voluntary.” Id. at 749. She testified that the attorney and the birth father urged her to sign the consent form and that she did so. Id. at 750. The attorney did not inform appellee that she retained the option of not signing the consent form. BGS was taken from the hospital and placed with the Nelsons; BGS has been and is presently living with the Nelsons.

In January, 1990 appellee initiated plans to regain BGS; she began to prepare a nursery at her parents’ home and she told her father that she stored baby clothes, formula, baby food and other articles at the home of her paternal grandparents. On January 22, 1990, under pressure from her father, appellee signed consent to adopt forms. Id. at 752-763. On January 24, 1990, approximately six weeks after the birth of BGS, appellee telephoned the attorney and stated to him that she “did not want to go through with the adoption [and] that [she] wanted the return of [BGS].” Id. at 801. During February, 1990 appellee contacted the attorney three times and stated that she wanted BGS returned to her. Appellee testified that the attorney was upset with her and told her that the Nelsons “were extremely wealthy. They will tie this up in court for years. There’s nothing you can do. You have signed the consent.” Id. at 765. The attorney stated to appellee that it would be in her best interest to retain legal counsel. Appellee did not find out until June, 1990 that it was the Nelsons who were the preadoptive couple who were raising BGS.

In June, 1989, appellee began counseling with marriage and family therapist Carol McNamee. The weekly therapy centered around issues related to appellee’s pregnancy. Id. at 312. Ms. McNamee testified that in May, 1990 appellee was “very distraught about not having her baby.” Id. at 318. She was having “mood swings, lots of crying, sleeplessness, headaches, feeling impulsive, feeling somewhat out of control.” Id. at 319. McNamee felt that appellee was in need of more help than McNamee could offer at that time. Appellee voluntarily admitted herself into Western Psychiatric Institute and Clinic in Pittsburgh on May, 11, 1990 and was released on June 7, 1990. After her hospitalization appellee continued sessions with McNamee. On July 20, 1990 appellee filed a Revocation of Consent to Adoption. The Nelsons then filed a petition to terminate appellee’s parental rights to BGS.

Prior to the termination hearing trial counsel for the Nelsons requested access to appellee’s psychiatric records regarding her hospitalization and the trial court denied the request. The trial court appointed Dr. Mark King, a psychologist, to determine appellee’s capacity to parent BGS. Dr. King evaluated and tested appellee, examined appellee’s Western Psychiatric records and talked to Ms. McNamee. Dr. Bang prepared a report and testified at the termination hearing. During the hearing the trial court learned that appellee’s counsel had provided the Western Psychiatric records to her expert witness, Dr. Herbert Levit, a psychologist. Subsequently, the trial court afforded counsel for the Nelsons access to appellee’s Western Psychiatric records. The Nelsons’ expert witness, Dr. Jeffrey Cohn, a psychologist, reviewed those records.

The Nelsons first claim that the trial court erred in failing to hold a full and comprehensive termination hearing since it failed to admit all relevant evidence. The Nelsons specifically aver that the trial court should have admitted appellee’s Western Psychiatric records and Carol McNamee’s notes of the therapy sessions with appellee. The Nelsons also aver that the Western Psychiatric records provided to their counsel were incomplete.

In the instant case the Nelsons attempted to have appellee’s parental rights terminated solely pursuant to the provision in 23 Pa.C.S. § 2511(a)(2) dealing with the alleged incapacity of a parent. Section 2511 states, in pertinent part,

(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) the repeated and continued incapacity ... of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity ... cannot or will not be remedied by the parent.

Hence, the only issue to be resolved by the trial court was whether appellee was incapable of parenting BGS due to her alleged emotional and/or psychological deficiencies that could or would not be remedied.

Our scope of review, as well as the burden of proof in involuntary termination cases, is as follows. In cases in which there has been an involuntary termination of parental rights by the Orphan’s Court, we must determine whether the decree of termination has been supported by competent evidence. In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986). If the decree is adequately supported by competent evidence, and the trial court’s findings are not predicated upon capricious disbelief of competent and credible evidence, the adjudication of the trial court terminating parental rights will not be disturbed on appeal. Id. In a termination of parental rights proceeding, the burden of proof is upon the party seeking termination to establish by clear and convincing evidence the existence of grounds for doing so. Id. Unless the trial court abused its discretion or committed an error of law, its findings are entitled to the same weight given a jury verdict. Id. The trial court, as trier of fact, is the sole determiner of the credibility of witnesses. Id. Conflicts in testimony are to be resolved by the trier of fact and our Court can not disturb a decree of the Orphan’s Court based upon findings supported by the record unless Orphan’s Court applied an incorrect legal standard. Id.

In order to meet the clear and convincing burden of proof: The witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. It is not necessary that the evidence be uncontradicted provided it carries conviction to the mind or carries a clear conviction of its truth.

Id., 511 Pa. at 595, 515 A.2d at 886.

In termination cases an appellate court has a duty to ensure that the trial court has satisfactorily fulfilled the requirements of examining all evidentiary resources. Matter of Adoption of Embick, 351 Pa.Super. 491, 506 A.2d 455 (1986). The trial court must conduct a full hearing and set forth its decision in a full discursive opinion. Id. In numerous termination of parental rights cases both the trial and appellate courts of this Commonwealth have considered the testimony of psychiatrists and/or psychologists. Id.; In re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984); In re William L., 477 Pa. 322, 383 A.2d 1228 (1978), cert. denied 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192; In re Adoption of B.K.W. and D.M.W., 348 Pa.Super 333, 502 A.2d 235 (1985); Matter of Adoption of Ferrante, 334 Pa.Super. 53, 482 A.2d 1076 (1985). Where the mental or emotional condition of a parent is at issue in a termination case the trial court may examine psychiatric and/or psychological records relating to that parent. Matter of Adoption of Embick, supra.

In the instant case appellee’s psychological records were both material and relevant and the trial court should have admitted the records into evidence. Id. While it would have been preferable for the trial court to have had direct access to the Western Psychiatric records the trial court was nonetheless apprised of the relevant substance of that source of information through the testimony and reports of the court-appointed psychologist, Dr. King, appellee’s expert, Dr. Levit and the Nelsons’ expert, Dr. Cohn.

Dr. King gave extensive testimony regarding his examination of appellee and her Western Psychiatric records as well as a consultation that he had with Ms. McNamee. King found appellee to be intelligent but immature and impulsive. N.T., 11/26, 28/90, 12/4, 13, 19/90, at 197, 238. He found her to be overly dependent upon her father, and, that she was without the ability to have healthy relationships with other people. He also stated that she suffered from depression. Dr. King also stated that BGS had bonded with the Nelsons and the act of removing BGS from the Nelsons and placing the child with appellee would have caused BGS to become depressed and withdrawn. Id. at 221. Dr. King stated that appellee’s therapy with McNamee and her hospitalization were a positive step in appellee’s attempt to develop the ability to parent BGS. Id. at 244. Dr. King testified that it might have taken up to ten years of therapy to enable appellee to have become a competent parent to BGS. Id. at 249. Dr. King did find that appellee could have provided for the physical needs of BGS and could have provided love for the child. Id. Dr. King was of the opinion that, in all cases, once a child has been placed with preadoptive parents for approximately six months then the child would be adversely affected if it was returned to the birth parent/s. Id. at 259. Dr. King informed appellee of his opinion, regarding the possible transfer of BGS, immediately before he administered an MMPI test to appellee. Id. at 261. Appellee’s responses to the MMPI test figured heavily in Dr. King’s assessment of appellee’s mental health. The trial court found that Dr. King’s views regarding the transfer of children from preadoptive to birth parents tainted his evaluation of appellee. Trial Court Opinion, 6/18/91, at 8.

Dr. Levit administered psychological tests and talked with appellee; he also reviewed her Western Psychiatric records. He found that appellee was not afflicted with psychosis or paranoia. He found her to be dependent, of average intelligence, mildly anxious and depressed, and internally hostile, yet he attributed these symptoms to the fact that she and BGS have been separated. He found that her hospitalization was the result of a situational depression, which is the direct result of a circumstance. N.T., 11/26, 28/90, 12/4, 13, 19/90, at 441. He opined that the instant circumstance was appellee’s separation from BGS. Levit found no organic impairment and no. emotional limitations that would have impaired appellee from competently parenting BGS, and, that she could have easily been integrated into therapy that would have facilitated her ability to cope with a transfer of BGS from the Nelsons. Id. at 455. The trial court “placed very little probative value on Dr. Levit’s testimony.” Trial Court Opinion, 6/18/91, at 5.

Dr. Cohn reviewed the Western Psychiatric records, was familiar with Dr. Levit’s assessment of appellee and discussed with Dr. King the MMPI that he administered to appellee. Dr. Cohn gave detailed testimony refuting Levit’s assessment of appellee’s mental health. N.T., 11/26, 28/90, 12/4, 13, 19/90, at 565-658. Cohn stated that the tests that Levit performed upon appellee constituted an inadequate basis upon which to conclude that appellee could parent BGS. Id. at 610.

Ms. McNamee was not a psychologist or psychiatrist; her. testimony was essentially that of a lay witness relating observations of appellee during the time period that appellee received counseling from McNamee. Id. at 310.. She testified that at the time of the termination hearing appellee and her family had a more harmonious relationship and that the family was supportive of appellee’s desire to regain possession of BGS. She also testified that appellee was not immature for her age. McNamee testified that appellee began counseling with her “to help ... sort out ... issues regarding the pregnancy and the decision that she had to make about the baby.” Id. at 333. We fail to see how the session notes of this lay witness would have aided the trial court in its determination of whether appellee was incapable of parenting BGS due to psychological deficiencies. Therefore, the trial court did not err in failing to admit MeNamee’s session notes.

We now turn to the Western Psychiatric records. King and Levit reviewed those records and testified regarding their beliefs as to why appellee was hospitalized and the extent of her treatment at Western Psychiatric. The trial court is the sole determiner of witness credibility. In re Adoption of J.J., supra. It found that King exhibited a bias in favor of the position taken by the Nelsons. Levit was appellee’s expert and provided testimony in her favor. Hence, the trial court was provided with testimony representing diametrically opposed viewpoints regarding appellee’s alleged psychological deficiencies. Although the trial court did not afford much credence to either expert’s conclusion this point is unimportant since the trial court did receive from them a comprehensive picture of appellee’s hospitalization and appellee’s emotional difficulties that precipitated her hospitalization. The relevant portions of the Western Psychiatric record were considered by the trial court, the trial court fully discussed in its opinions the findings of the experts, and, hence, the trial court conducted a hearing examining all evidentiary resources and set forth its decision in a full discursive opinion. Matter of Adoption ofEmbick, supra. Hence, the Nelsons’ claim that the trial court failed to hold a comprehensive hearing and admit all relevant evidence is without merit.

The Nelsons’ second claim is that a new trial is required since the trial court refused to admit into evidence and consider the records of appellee’s psychiatric hospitalization and emotional counseling. We have already addressed these claims in the Nelsons’ issue number one, supra, and based upon the reasoning therein find this issue to be without merit.

The Nelsons’ third claim is that a new trial is mandated since the trial court rejected all expert psychological testimony and substituted “his own courtroom diagnosis as the basis of his decision.” Appellants’ Brief at 3.

The trial court did not reject the expert psychological testimony. It considered Dr. King’s and Dr. Cohn’s refutation of Dr. Levit’s testimony. Although it “placed very little probative value on Dr. Levit’s testimony” it nevertheless considered his testimony and did not discount it in toto. Trial Court Opinion, 6/18/91, at 5. Although the trial court found Dr. King’s testimony “tainted” it nevertheless considered the testimony. The trial court, as finder of fact, is the sole determiner of credibility of witnesses. In re Adoption of J.J., supra. Conflicts in testimony are to be resolved by the trier of fact. Id. The trial court properly determined the credibility of the several experts, and, after resolving conflicts in testimony and determining which testimony was credible and which was not, gleaned testimony from the experts that he factored into his decision regarding whether to terminate appellee’s parental rights. Hence, the Nelsons are incorrect in their assertion that the trial court rejected all expert psychological testimony.

The Nelsons also aver that the trial court substituted its judgment, of appellee’s psychological condition, in place of the experts’ judgment. We disagree. As mentioned, supra, the trial court considered the testimony of all of the experts. The trial court did find much of Levit’s testimony to be incredible and disagreed with King’s “heightened concern with indicia of [appellee’s] psychopathology from the MMPI [test] results; his dim prognosis for her recovery; and the discrepancies that existed between Dr. King’s observations of [appellee] and those of the court itself.” Trial Court Opinion 6/18/91, at 6. The trial court stated that it was impressed with appellee’s ability to “cope” with the termination proceedings. This is not to say that the trial court based its final determination, not to terminate appellee’s parental rights, solely upon its observation of appellee’s demeanor during the hearing. The trial court’s observation of appellee was but one of many factors that the trial court considered in its final determination. Regarding the MMPI, as mentioned, supra, immediately prior to administering the MMPI to appellee Dr. King informed her that a transfer of BGS from the Nelsons to appellee would have adverse effects upon BGS; the trial court determined, after listening to testimony regarding the purpose of utilizing and methods of eliciting responses to an MMPI test, that King’s statement to appellee affected her responses on the test, and, consequently, King’s interpretation of the test results. Therefore, the trial court did not substitute its judgment in place of the experts’ judgment; the trial court merely weighed all of the evidence and determined which evidence it found to be credible.

The Nelsons’ fourth claim is that, “A new trial is required because the court misunderstood prior authority and improperly refused to admit and consider evidence of the child’s unique circumstances and emotional needs as it related to parental capacity.” Appellants’ Brief at 41. The “unique circumstances and emotional needs” of BGS are the alleged adverse reactions (i.e., depression and withdrawal) that BGS may suffer if transferred from the Nelsons to appellee.

23 Pa.C.S. § 2511(b) states,

(b) Other considerations. — The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

Our Court, in In Interest of Coast, 385 Pa.Super. 450, 561 A.2d 762 (1989) (En Banc), stated,

[A] best interests [of the child in a termination proceeding] balancing analysis has no place in a determination of whether the statutory requisites of termination of parental rights have been met.... [T]he ‘best interest’ test conflicts with the purpose of a termination action.... Nor does ... the fact-finding [process] ... purport to determine whether the natural parents or the foster parents would provide the better home.
[A section 2511 termination proceeding] center[s] judicial inquiry on the welfare of the child rather than on the fault of the parent. ... [T]he focus [is on] the effect of the parents’ actions or omissions upon the child. The parents’ behavior ... constitutes the operational fact, but in a broader sense. This effect upon the child has ... been expressed as the ‘needs and welfare’ of the child. It follows, then, that judicial inquiry necessarily looks at whether the needs of the child, both physical and emotional, are being served, for the purpose of determining whether or not the parent is performing his function. In this sense, the child’s welfare is and always has been considered in Pennsylvania.... Our courts never meant by this kind of language that a ‘best interests of the child’ balancing test was to be employed; the analysis has, rather, always been an intensive fact-finding inquiry into whether the statutory provisions for termination had been met____ The focus and purpose of a termination hearing ... is whether parents have so failed in their duty that the State, because of its interest in the child’s well-being, must strip the parents of their fundamental right.
[I]n the absence of sufficient evidence to satisfy the statutory requirements for involuntary termination, the question of the' best interest of the child never arises____ The term ‘child’s needs and welfare’ denotes neither a discrete factor which a court must consider, nor a discrete step in a termination adjudication. Rather, it denotes the minimum standard of care that is required of parents by the state.
[23 Pa.C.S.A.] § 2511(b) does not contain an additional ground for terminating parental rights; such grounds are contained in § 2511(a) only. Thus, until the requirements of § 2511(a) are met, there is no need to consider § 2511(b). [ (Citations omitted) (Emphasis added).]

Id., 385 Pa.Superior Ct. at 458, 459, 460-61, 462, 465, 466, 561 A.2d at 766, 767, 768, 769, 770.

In the instant case the trial court found that the Nelsons failed to establish by clear and convincing evidence that appellee, because of alleged psychological incapacity, caused BGS to be without essential parental care, control or subsistence necessary for the physical or mental well-being of BGS. In sum, the trial court determined that the Nelsons failed to show that the requirements of 23 Pa.C.S. § 2511(a)(2) were met. If the requirements of § 2511 are not met, then the trial court may not inquire into the “best interests” of the child. In Interest of Coast, supra. Therefore, the trial court did not err in failing to consider whether BGS may become depressed and withdrawn if BGS is at some future time returned to the custody of appellee. The Nelsons’ claim is without merit.

We affirm the order of the trial court denying the Nelsons’ petition to terminate the parental rights of appellee.

APPEAL AT NO. 1119 PITTSBURGH 1991.

The Nelsons claim that the trial court abused its discretion in granting in forma pauperis status to appellee since the trial court failed to conduct an evidentiary hearing and failed to find that appellee was unable to pay “all or some of the costs” of the instant case. Appellants’ Brief at 3. The Nelsons have not averred that they were prejudiced in any way by the trial court’s decision to grant in forma pauperis status to appellee.

On January 15, 1991 the trial court denied the Nelsons’ petition to terminate appellee’s parental rights. On March 4, 1991 the Nelsons filed exceptions, and, appellee’s brief in opposition to the Nelsons’ exceptions was due on April 3, 1991. On March 21, 1991 appellee directly presented to the trial court a Praecipe to Proceed In Forma Pauperis. She averred that she was unable to pay the costs associated with the instant case. Appellee also presented an affidavit in support of the praecipe; said affidavit listed her past employment, property owned, debts and expenses for dependents. The Nelsons’ counsel was provided with notice of the date that the documents would be presented to the trial court. Counsel for the Nelsons was present on March 21,1991, when the praecipe and affidavit were presented to the trial court; counsel for the Nelsons was given copies of the praecipe and affidavit. The trial court stated that it granted appellee’s “emergency” praecipe so that her counsel could “obtain and review transcripts covering five days of hearings on the termination of parental rights petition and prepare his response” to the Nelsons’ exceptions to the denial of their petition to terminate appellee’s parental rights. Trial Court Opinion, 11/19/91, at 1.

Pa.R.C.P. 240(b) states, “A party who is without financial resources to pay the costs of litigation is entitled to proceed in forma pauperis.” The mere filing of a praecipe for in forma pauperis status will not automatically establish the petitioner’s right to proceed in that status. Nicholson v. Nicholson, 247 Pa.Super. 172, 371 A.2d 1383 (1977). The trial court must satisfy itself of the truth of the averment of inability to pay. Id. Once the opposing party denies the petitioner’s averments the trial court must determine the truthfulness of the averments. Koziatek v. Marquett, 335 Pa.Super. 482, 484 A.2d 806 (1984). This Court will refer to the trial court questions regarding the veracity of a petitioner’s allegations. Id.; Nicholson v. Nicholson, supra. If the trial court disbelieves the petitioner’s averments it is incumbent upon the trial court to hold an evidentiary hearing. Koziatek v. Marquett, supra. However, if the trial court believes the petitioner’s averments then there is no requirement that the trial court conduct an evidentiary hearing. Id.; Nicholson v. Nicholson, supra. Our Court will reverse the trial court’s determination only if an abuse of discretion occurred. Nicholson v. Nicholson, supra.

During the five days of the termination hearing the trial court was apprised of numerous details regarding appellee’s financial condition. Thus, even before appellee presented the trial court with her in forma pauperis petition the trial court was familiar with appellee’s ability or inability to pay for the costs of the instant case. The Nelsons denied the truthfulness of appellee’s averments. However, the trial court, after reviewing the petition and utilizing the knowledge that it had gleaned from the five days of the termination hearing, determined that appellee’s averments were truthful. Our Court will defer to the trial court regarding questions about the veracity of averments in an in forma pauperis petition. Koziatek v. Marquett, supra; Nicholson v. Nicholson, supra. Since the trial court believed the averments in appellee’s petition it was unnecessary for the trial court to conduct an evidentiary hearing. Id. Furthermore, the Nelsons were not prejudiced by the actions of the trial court. Hence, we find that the trial court did not abuse its discretion in granting appellee’s praecipe for in forma pauperis status and the Nelsons’ claims are without merit. We affirm the order of the trial court granting in forma pauperis status to appellee.

Orders affirmed.

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

TAMILIA, Judge,

concurring and dissenting.

I concur in the majority’s determination that appellee was properly permitted to proceed in forma pauperis and despite the technical deficiencies that a proper hearing would have corrected, the extreme importance of this proceeding to the appellee and the lack of prejudice to the Nelsons warrants our erring in favor of appellee.

I strenuously object to the decision by the majority affirming the trial court in denying the Nelsons’ petition to terminate the parental rights of appellee. It appears the trial court and the majority, in denying the petition to terminate, were effected by the pleas of a young woman to return her child rather than by the evidence which clearly met the test of clear and convincing evidence required to sustain a termination Order. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

The trial court substituted its judgment for that of competent psychological witnesses in an area where the expertise of the psychologist could not be second guessed by the court. The court did not dispute the findings of Dr. King, the court-appointed expert, but determined those findings were not convincing in light of appellee’s ability to muster a legal defense and take steps in preparation for the return of B.G.S. (the child subject of the termination proceeding). I submit that observation of the appellee in the court room, no matter how convincing, cannot substitute for evaluation and review of the history of appellee’s vacillation about termination and subsequent involvement in therapy. The mental stability of appellee throughout this period was of vital importance and although the trial court asserts it had sufficient information to make a decision without the records of Western Psychiatric Institute and Clinic (WPIC), failure to admit this vital data precluded the court from having the full and exhaustive hearing that is required in a termination case. It also denied this Court critical information on the record necessary for appellate review.

The most troubling aspect of this case concerns the events that led up to the placement of B.G.S. While the court in its Opinion castigated the lawyer intermediary for his conduct in pursuing the adoption, and perhaps on this basis alone might have concluded the termination procedure was defective, it failed to give proper weight to the conditions and circumstances that led to placement. There was family intolerance to the mother retaining custody, she had no resources to maintain the child on her own, she and her parents initiated the placement process and throughout the placement, despite her ambivalence, she asserted her intent to proceed with adoption and to have the adoptive parents assume legal responsibility for the child. The evidence of this conduct is in conflict with the picture and testimony presented by appellee at trial. Also, despite several months of counseling from a mental health counselor, she found it necessary to admit herself to WPIC to undergo psychiatric treatment and medication. It was during her stay at WPIC that she instructed her counsel to revoke her consent to adopt and instead seek custody. This precipitated the petition for involuntary termination by the pre-adoptive parents. Her testimony about her parents being abusive in her childhood and the vacillation and misrepresentation as to her intent regarding adoption point to instability which supports the findings by the court-appointed psychologist.

Dr. King holds both masters and doctorate degrees in the psychology of child development and has practiced and taught at the university level (University of Pittsburgh, clinical psychologist and professor of child development) for seventeen years. To hold, as did the trial court, that Dr. King had a bias against returning infants after six months placement in preadoptive homes ignores his expertise and evaluation of the mother in terms of her fitness to care for the child. The trial court’s reliance on In re Adoption of Stunkard, 380 Pa.Super. 107, 551 A.2d 253 (1988), to negate Dr. King’s use and reliance on the Minnesota Multiphasic Personality Inventory (MMPI) is misplaced and error. The MMPI, in the hands of a properly qualified expert, is a highly effective diagnostic/prognostic tool in combination with other data and information as was the case here. The birth mother, with no parenting skills, a history of emotional instability and lacking solid family support, who is pursuing educational career goals and attempting to obtain financial independence through employment, presents the degree of incapacity to parent that meets the proof of failure of parenting capacity required under 23 Pa.C.S. § 2511(a)(2):

§ 2511. Grounds for involuntary termination
(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

Id. The court refused to consider the records of the mother’s hospitalization at WPIC as to both the precipitating cause of her illness and her capacity to parent. The majority herein found the records both material and relevant and that they should have been admitted on the record (Majority Opinion, p. 9) but excused failure to do so by assuming the court acquired sufficient knowledge of their contents by indirection, through the testimony of Dr. King, appellee’s expert, Dr. Levit and the Nelsons’ expert, Dr. Cohn. This is unacceptable because we do not have those records available for our review. This is particularly important when the trial court (and apparently the majority) found Dr. King’s views tainted, Dr. Levit’s testimony to have little probative value and Dr. Cohn’s testimony refuting Dr. Levit’s and presumably supportive of Dr. King’s. Under the circumstances appellant is justified in alleging that the trial court ignored all of the experts’ testimony and made its own psychological/psychiatric finding.

It is not possible to determine from the trial record and the trial court’s analysis precisely what basis the court used for its decision other than to find that its observations of appellee in court led to the conclusion she could provide adequate housing, clothing, food and love for the child. With the serious emotional and psychiatric instability evidenced by the record, that finding was inadequate to establish that the mother’s incapacity had been remedied as required by section 2511(a)(2). I submit that this finding is not supported by the record. The infant has never been with the mother, her parenting capacity is unknown, there has been no bonding between them, her homemaking skills are unknown and she is now embarked on a program of work and self-improvement which will leave her little time to overcome the two-year deficit in child care and the trauma that transfer to her from the pre-adoptive parents will occasion in the child. See Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976); Sarver Adoption Case, 444 Pa. 507, 281 A.2d 890 (1971); Schwab Adoption Case, 355 Pa. 534, 50 A.2d 504 (1947). The Court here has failed to examine all of the evidence, as required by Adoption of Embick, 351 Pa.Super. 491, 506 A.2d 455 (1986), and the conclusions it drew as to the mother’s fitness are conjectural and actually contradicted by the record.

The second consideration presented by this case and which was ignored by the trial court and misconstrued by the majority is the provision contained in section 2511(b), which provides:

(b) Other considerations. — The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

The court, in refusing to consider best interest as it had not found the mother unfit, even if such a finding was justified, needed to consider the needs and welfare of the child. Since the ground for involuntary termination and the basis upon which the court made its analysis and finding was section 2511(a)(2), it could not disregard the needs and welfare of the child. Here, the court could not have determined on the record that the “neglect or refusal cannot or will not be remedied by the parent” (§ 2511(a)(2)) even if the court found the parent was fit. This is not a case where the child was removed by the state or there was a history of parenting or nonparenting which needed to be scrutinized and “the parent cannot or will not remedy those conditions within a reasonable period of time, [and] the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child” pursuant to section 2511(a)(5). That situation is the basis upon which In the Interest of Coast, 385 Pa.Super. 450, 561 A.2d 762 (1989), was decided and the law relating to best interest was established as pronounced in the vast majority of the cases for involuntary termination.

This case began with a consensual placement leading to voluntary termination under section 2502, Relinquishment to adult intending to adopt child. It resulted in an involuntary termination proceeding only after the child had been in placement with the pre-adoptive parents for a considerable period of time. The court’s inquiry under these circumstances, since the unity of the family never existed as is an important consideration in the usual involuntary termination case, should have focused on section 2511(b), giving primary consideration to the needs and welfare of the child. In re E.M., 401 Pa.Super. 129, 584 A.2d 1014 (1991) (Orphans Court erred in failing to consider properly needs and welfare of children as discrete element under statutory scheme in terminating parental rights); In re Quick, 384 Pa.Super. 412, 559 A.2d 42 (1989) (Termination would meet needs and welfare of the child as removal from foster home would upset children’s need for stability); Appeal of Diane B., 456 Pa. 429, 321 A.2d 618 (1974) (A mere desire to perform parental duties is insufficient to preserve the parent-child relationship); Adoption of R.I., supra (R.I.’s best interest would dictate who should have custody in such circumstances. To remove R.I. from her foster home might well create psychological and emotional distress similar to that caused by her initial removal from her natural parent). See Sarver Adoption Case and Schwab Adoption Case, supra. In re Adoption of J.J., 511 Pa. 590, 607, 515 A.2d 883 (1981) (Judicial inquiry is to be centered on the best interest of the child rather than the fault of the parent).

Coast, supra, limited its discussion on best interest to whether a balancing test as between the two parents should be applied in evaluating the termination petition. The issue arose as to which of the two homes, the foster home or that of the natural parents, was better. Here, it is not a question of which of the two homes is better. There is prima facie case that the natural parent has never functioned as a parent during the child’s lifetime, has shown no ability to provide a home for the child and is arguably mentally and emotionally unable to assume responsibility for the child. Discussion or debate at this point about the child’s best interest and what it means in the context of the adoption law is academic. The statute does, however, mandate that “[t]he court in terminating the rights of the parent shall give primary consideration to the needs and welfare of the child.” Section 2511(b), Other considerations. This writer, in his Concurring and Dissenting Opinion in Coast, went to considerable length to explain how this provision was necessarily incorporated into a termination proceeding with documentation of similar requirements in other jurisdictions. The majority in Coast did not disagree but limited its discussion to the balancing issue and did not make any finding on the “needs and welfare” provision. Coast, therefore, is not authority for limiting consideration of the needs and welfare of the child under the facts of this case.

While it may be premature to find that the birth mother cannot remedy her incapacity to care for the child under section 2511(a)(2), the record does not support her present ability to do so. This does not mean that the Orphan’s Court is presented with an either-or proposition where it must either terminate parental rights or place the child with the birth mother. Relying on section 2511(b), the court may bring into play the assistance of children’s agencies and proceed to determine by proven methods of visitation and supervised placement, whether the child can be successfully returned to the appellee and whether she can establish an emotional and physical bond with the child which will avoid irreversible harm and detriment to her. Failing to accomplish this result, the court may reasonably proceed to terminate parental rights of B.G.S. The cases are legion where the appellate courts have found that the requirements of termination have not been met but refused to disturb the placement of the child when it would be traumatic to do so. See Adoption of R.I., Sarver Adoption Case and Schwab Adoption Case, supra. This most certainly comes within the requirement that the court, in terminating the rights of a parent, shall give primary consideration to the needs and welfare of the child.

For the above reasons, I would vacate the decree of the trial court and remand with instructions to obtain the birth mother’s psychiatric records and give proper weight to the psychological testimony and consideration to the needs and welfare of the child and to do anything required thereafter to fulfill the mandate of section 2511(b).

      . Although Dr. King was appointed by the trial court the Nelsons assumed responsibility for his salary and Dr. King was aware of that fact. N.T., 11/26, 28/90, 12/4, 13, 19/90, at 180.

      . The trial court had no direct access to the Western Psychiatric records.

      . The Nelsons aver that Western Psychiatric documents prepared concurrent with appellee’s voluntary admission to the hospital were never forwarded to Dr. King or Dr. Cohn. We can not address this claim since none of the Western Psychiatric records were included in the record on appeal to this Court. However, arguendo, if we were able to address this issue we would have found it to be without merit since the admission documents would have been insignificant in comparison to the records relating to appellant's actual hospitalization.

      . At the time that Dr. King testified BGS had already been with the Nelsons for one year.

      . The trial court also had the opportunity to observe appellee for five days in the courtroom and on the witness stand.

      . In forma pauperis status permitted appellee to be relieved from paying costs associated with the instant case. Appellee's counsel had been providing free legal services during the Nelsons’ appeal to this Court.

      . Appellee’s praecipe and affidavit complied with the requirements of Pa.R.C.P. 240(h), (i).


source: Caselaw Access Project

author: POPOVICH, Judge.

license: Public Domain

text:
    614 A.2d 1174
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert MALLORY, Appellee.
    Superior Court of Pennsylvania.
    Argued July 14, 1992.
    Filed Sept. 16, 1992.
    Karen L. Grigsby, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Sarah Kerr, Asst. Public Defender, Philadelphia, for appellee.

      Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge.

The Commonwealth appeals the grant of a motion to suppress by the appellee, Robert Mallory. We reverse.

The facts of record are undisputed and indicate that at approximately 1:45 p.m., on the 3rd day of March, 1989, plainclothes officers under the direction of Lieutenant Samuel Lynch of the Philadelphia Police Department established a surveillance in the vicinity of 1308 East Price Street, Philadelphia. This action was taken because of numerous accounts received by the police that drug activity was taking place in the 1300 block of East Price Street.

After fifteen minutes at the site, the surveillance squad reported that there was a narcotics transaction occurring in front of the bar at Price and Crittenden. As a consequence, a “couple of buyers” were arrested there. Within another fifteen minutes to a half-an-hour, the police received a description of the dealer standing at Price and Crittenden in front of the bar. The police decided to make his arrest.

As Lt. Lynch was driving to the scene, he observed the appellee at a distance of 10-15 feet from the officer and 5-10 feet from the dealer the police intended to arrest, and “[h]e wasn’t just standing there, he was inching his way around to the other side of the bar.” This action was preceded by the arrival of 2 plainclothes officers and Lt. Lynch, who came onto the scene with “maybe three or four other uniformed cars in the area.”

As the police approached to make an arrest of the dealer, Lt. Lynch observed the appellee reach into his jacket pocket, remove a clear plastic bag and “shove” it down the front of his pants, near the waistband area. Lt. Lynch, thereafter, arrested the appellee, and a search of his person produced a clear plastic bag containing 24 orange caps later found to hold crack-cocaine.

After his arrest, the appellee was transported to the police station for processing. A further search of his jacket produced 9 clear plastic packets, each containing a white powdery substance believed to be cocaine. The criminal complaint filed against the appellee charged him with unlawful possession of cocaine.

Following a suppression hearing, the court granted the appellee’s motion on the ground that, albeit it found Lt. Lynch to be “absolutely credible”, the evidence was not supportive of a finding of probable cause to arrest the appellee prior to the search of his person. The Commonwealth perfected an appeal and assails the court’s findings of fact and conclusions of law of insufficient evidence to justify the arrest and subsequent search of the appellee.

. It is axiomatic that the validity of a warrantless arrest is determined by considering “whether, at the moment the arrest was made, the officer had probable cause to make it,” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225,13 L.Ed.2d 142 (1964), and the person arrested is believed to be the guilty party. See Commonwealth v. Walker, 348 Pa.Super. 207, 501 A2d 1143 (1985), allocatur denied; Commonwealth v. Pytak, 278 Pa.Super. 476, 420 A.2d 640, 644 (1980). It is only the probability of criminal activity that is the standard of probable cause. This means less than the evidence which would justify conviction, or even a prima facie showing of criminal activity; but more than a mere suspicion. See Commonwealth v. Murray, 437 Pa. 326, 263 A.2d 886 (1970). Specifically, we have stated:

Probable cause is a flexible, common-sense standard. As the Supreme Court in Texas v. Brown, supra [460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) ] commented [460 U.S. at 741] 103 S.Ct. at 1543:
It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288 [69 L.Ed. 543] (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, non-technical” probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311 [93 L.Ed. 1879] (1949).
Moreover, when examining a particular situation to determine if probable cause exists, a court must consider all factors and not concentrate on any individual element. Furthermore, it is important to focus on the circumstances as seen through the eyes of a trained officer and not to view the situation as an average citizen might. Finally, probable cause does not deal in certainties; rather, a court is faced with the factual and practical consideration of everyday life which affect how reasonable and prudent men act. See Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701, 705 (1982); Commonwealth v. Tolbert, 235 Pa.Super. 227, 230, 341 A.2d 198, 200 (1975).

Commonwealth v. Kendrick, 340 Pa.Super, 563, 490 A.2d 923, 927 (1985). Accord United States v. Lima, 819 F.2d 687, 688 (7th Cir.1987). Viewed in light of the preceding, the evidence presents a picture at odds with the suppression court’s ruling; to-wit:

1) There were numerous reports to the police of narcotics activity in the 1300 block of East Price Street;
2) Surveillance of the area by police produced a narcotics transaction in front of a bar at Price & Crittenden which led to the arrest of a couple (2, 3) of “small buyers”;
3) Within 15 minutes of the first arrests, the “dealer” was identified at the same location;
4) As police were approaching the “dealer” to make his arrest, Lt. Lynch noticed the appellee at a distance of approximately 5-10 feet from the dealer, and he was not stationary “he was inching his way around to the other side of the bar” building; and
5) Appellee made a “motion” which caught Lt. Lynch’s attention: he reached into his right jacket pocket, took out a clear plastic baggie and “shoved” it in the waist band area of his slacks.

Lt. Lynch reacted by arresting the appellee.

At the suppression hearing, Lt. Lynch was asked what he thought was in the plastic bag when first he saw it in the appellee’s possession. His response was, “Drugs”, and it was premised upon:

1) Fifteen years on the police force;
2) Observing “[w]ell over a hundred, two hundred” instances of “narcotics in plastic bags”[] during his tenure as a police officer;
3) The area in which the surveillance was conducted had been “worked” by Lt. Lynch in the past, and, in particular, the bar in front of which the appellee first was seen was known to have “a lot of drug activity bn that particular corner”; and
4) Lt. Lynch had participated in approximately fifteen narcotic investigations on that corner, some of which “involve[d] narcotics in plastic bags[.]

The issue is a close one, but we believe that the totality of the circumstances point to sufficient probable cause to link the clear plastic baggie with criminal activity. Cf. United States v. Cruz, 910 F.2d 1072, 1077 (3rd Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991) (Defendant’s movement toward a particular store, his flight after approach of police and officer’s knowledge of drug trafficking in the area gave police probable cause to arrest the defendant). We find that this experienced police officer’s view of the baggie was tantamount to a view of the cocaine itself. See Kendrick, supra.

More specifically, in Kendrick, a panel majority of this Court upheld the seizure of a black plastic film vial containing 27 foil packets of heroin. It appears that in Kendrick, as police were executing a warrant to search for drugs in a residence, the authorities approached the defendant to conduct a weapon search. Before doing so, however, the police noticed something black in the defendant’s left hand. He attempted to conceal the object by tucking his hand under his body. Nonetheless, the vial was seized and found to contain heroin. The defendant was arrested, but his motion to suppress was granted and appealed by the Commonwealth. We reversed. As is herein relevant, we wrote:

In the instant case, evidence at the suppression hearing revealed a valid search warrant authorizing a narcotics search of the residence. When the detectives attempted to execute the warrant, they were immediately confronted by a gunman. Under these circumstances, it was not unreasonable for the detectives to conclude either that criminal activity was currently taking place, or had taken place just prior to their arrival. Focusing now on appellee, the evidence showed that appellee was present in a house in which the detectives suspected drug trafficking activities. Moreover, when the detectives arrived at the residence to execute the warrant, appellee attempted to avoid police detection by retreating into a bedroom. Failing to avoid detection and once under police custody, appellee then attempted to hide the film vial under his body. In light of the foregoing, we do not hesitate in finding that there was probable cause to associate the concealed object with criminal activity. See Commonwealth v. Chamberlain, supra [332 Pa.Super. 108, 480 A.2d 1209 (1984) ]; Texas v. Brown, supra; Commonwealth v. Gease, 304 Pa.Super. 433, 450 A.2d 989 (1982). We hold, therefore, that the seizure was lawful.
This Court believes that a film vial, a common package for carrying narcotics, is more closely akin to those rare single purpose containers which “by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.” Arkansas v. Sanders, 442 U.S. 753, 764-765 n. 13, 99 S.Ct. 2586, 2593-2594 n. 13, 61 L.Ed.2d 235 (1979). Admittedly, a film container has other uses and therefore is not purely a “single-purpose” container. However, given the circumstances of this case, we believe that the trained, narcotics detective’s view of the container was tantamount to a view of the heroin itself See Texas v. Brown, supra (Stevens, J., concurring [460 U.S. at 748, 103 S.Ct.] at 1547). Therefore, we hold that the search of the film vial was lawful.

340 Pa.Super. at 572 & n. 6, 490 A.2d at 928-29, & n. 6 (Emphasis added).

Accord United States v. Embry, 546 F.2d 552, 556 (3rd Cir.1976), cert. denied, 430 U.S. 948, 97 S.Ct. 1587, 51 L.Ed.2d 797 (1977) (Defendant’s flight, while triggered by the street frisk of another person standing in close proximity to him, was not enough to afford sufficient probable cause to justify his apprehension; defendant’s flight in conjunction with action of discarding a package recognized as me in which narcotics are frequently transported — rolled shape ball of aluminum foil — satisfied the probable cause requirement for the defendant’s arrest); United States v. Martin, 386 F.2d 213, 215 (3rd Cir.1967), cert. denied, 393 U.S. 862, 89 S.Ct. 142, 21 L.Ed.2d 130 (1968) (Defendant’s detention and search was supported by the nature of the items abandoned and provocative acts — packets discarded, retrieved by police and identified by federal narcotics officer as “junk”); cf. Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984) (Defendant arrested after police observed him receive 2 credit cards for a small plastic packet found to contain heroin).

As in Kendrick, supra, it was proper here for the police to conclude that criminal activity was afoot. With regard to the appellee, he was standing on a corner known for drug activity and within 5-10 feet of a “dealer” who was about to be arrested. Once the police began arriving on the scene, the appellee attempted to avoid police scrutiny by “inching” his way to the opposite side of the bar building. In addition, in an effort to insulate his drugs from detection, the appellee shifted their location from his jacket pocket to the inside of his slacks.

In United States v. Aquiar, 825 F.2d 39 (4th Cir.1987), cert. denied, 484 U.S. 987, 108 S.Ct. 505, 98 L.Ed.2d 503 (1987), the Fourth Circuit Court of Appeals held that airport police had probable cause to arrest and search the defendant premised upon his meeting a number of drug courier profile characteristics and the officer’s observance of a large bulge on the defendant’s left ankle and some white plastic showing beneath the cuff of his left trouser. As to the latter fact, the Court noted that it joined with the drug courier profile to validate the defendant’s arrest. The remarks made by the Court are germane at bar:

... the fact that he met a number of drug courier profile characteristics did not supply probable cause to arrest him. * * * but there was more here than the fact that Aquiar met a number of well-known drug courier profile characteristics. There was the large bulge at the left ankle and the piece of white plastic that could be observed when Aquiar walked coupled with the testimony that [the police] observed others with such bulges and that the bulge had always turned out to be packets of illicit drugs. Nor can the observed bulge and white plastic be dismissed as just another drug courier profile characteristic. For a variety of reasons, many innocent persons would exhibit some or even many of those characteristics, but few innocent people carry treasures in packets wrapped in plastic and strapped to their ankles. A United States Navy enlisted man in uniform without pockets may carry a package of cigarettes in his socks, but Aquiar was not in any such uniform. If other innocent people carry precious possessions in packets strapped to their ankles, they must be extremely rare.
The fact that Aquiar met a number of drug courier profile characteristics — he ... traveled on a flight from Miami, a fertile source of narcotics, on a one-way ticket issued in a false name and paid for in cash and that there were no baggage claim checks — alone was not enough to constitute probable cause for arrest. Whether or not the policeman’s observance of the bulge at the ankle alone was enough to constitute probable cause for arrest, we need not decide, but in combination with the drug courier profile characteristics exhibited by Aquiar, it would constitute probable cause for arrest. Out of the policeman’s experience, he recognized that the bulge was probably caused by a packet of illicit drugs strapped to the ankle. What the policeman knew and observed therefore was far more than the fact that Aquiar met the generalized drug courier profile characteristics.

825 F.2d at 41 (Emphasis added). Accord United States v. Tate, 745 F.Supp. 352, 360-61 (W.D.N.C.1990).

As in Aquiar, supra, the police here observed an object on the defendant’s person in a location which was uncharacteristic of a storage site. Moreover, what was seen had been witnessed by the police in the past and it turned out to be narcotics. This knowledge cannot merely be ignored and dismissed as so much fluff that adds little to the detection of criminal activity. Experience is the best tool to assist law enforcement officers in being attuned to the ever-changing drug world, which takes on many forms and presents many faces to cloak its unlawful activity. The police, being students of the world of crime, cannot nor should not ignore what they have learned from previous encounters with drug users and dealers. To do so would render knowledge and experience acquired while “on the job” of no consequence in combating the ubiquitous drug user/dealer who appears to have infiltrated every facet of today’s world.

Accordingly, as stated in Kendrick, supra, and implied in Aquiar, supra, we do not hesitate in finding that there was probable cause to associate the concealed object with criminal activity, and we believe that the veteran officer (being involved with more than a hundred criminal instances of “narcotics in plastic bags”) was justified in thinking that the object he saw contained drugs. It is the “probability” of criminal activity and not its “certainty” which is the measuring rod against which the totality of the circumstances confronting the police are to be weighed in determining the presence of probable cause to arrest. Commonwealth v. Fiore, 281 Pa.Super. 1, 421 A.2d 1116 (1980).

We find that the facts, when viewed in toto, painted a “picture of probable cause” allowing the police to arrest the appellee. To do otherwise would be to take a myopic view of the facts and render a decision totally devoid of common sensical inferences to be drawn by trained police officers with regard to drug activity. We hold that the actions of the police, under the totality of the circumstances, was proper and not violative of either the Pennsylvania or United States Constitutions (Art. 1, Sec. 8; Fourth Amendment, respectively).

Alternatively, it could be argued that the appellee’s actions in concealing his drugs transpired in “plain view” of the police and, when coupled with the appellee’s “furtive” efforts to accomplish his concealment, provided the probable cause to arrest. See Dissenting Opinion by Popovich, J. in Kendrick, supra, citing Commonwealth v. Gease, 304 Pa.Super. 433, 450 A.2d 989 (1982).

Because we find that the seizure of the clear plastic baggie and search of its contents were lawful, the suppression court erred in granting the appellee’s motion to suppress, Consequently, we reverse the order of the court below.

Order reversed.

      . The Commonwealth certifies that the grant of the motion to suppress will “substantially” handicap its prosecution of the appellee. This renders the interlocutory appeal properly before us. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 385 n. 5 (1985).

      . This was corroborated by Officer Robert Fagan, who testified that he saw cocaine packaged in baggies approximately: "Two hundred [times], maybe more.”

       See U.S. v. Jackson, 649 F.2d 967, [978] (3rd Cir.1981) cert. denied Bailey v. U.S., 454 U.S. 871, 102 S.Ct. 341, 70 L.Ed.2d 176 [(1981)]. (Police who entered bar with a search warrant for the bar and arrest warrants for five persons on drug related charges, had probable cause to arrest and search defendant, who was not named in either the arrest or search warrant, when they observed defendant attempt to hide capsules of the type commonly containing heroin in a freezer); Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960 (1982) (officers observed appellant and companion emerge from an alley in a high crime area at night, leaf through an object, and run at first sight of police. These facts plus permissible inferences from them would lead a man of reasonable caution to suspect criminal activity was afoot.)
      Cf. Ybarra v. Illinois, 444, U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (not only was probable cause to search Ybarra absent at the time the warrant was issued, it was still absent when the police executed the warrant. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband and said nothing of a suspicious nature to the police officers); Commonwealth v. Kelly, 487 Pa. 174, 409 A.2d 21 (1979) (when officers had neither been informed of nor observed suspicious conduct or circumstances that would give rise to an inference of possession of a controlled substance, they lacked probable cause to seize from plain view amber prescription vial which contained several foil packets of hashish.)


author: WIEAND, Judge.

text:
    614 A.2d 1180
    COMMONWEALTH of Pennsylvania v. Samuel HARPER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 12, 1992.
    Filed Sept. 22, 1992.

      Bernard L. Siegel, Philadelphia, for appellant.
    Laurie Magid, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge.

Samuel Harper was tried by jury and was found guilty of burglary, rape, corruption of a minor and making terroristic threats. Following the filing of post-trial motions, Harper’s trial counsel was replaced by new counsel, who filed supplemental post-trial motions alleging that trial counsel had rendered ineffective assistance. An evidentiary hearing was held, but thereafter the trial court denied post-trial relief and sentenced Harper to serve an aggregate term of imprisonment of not less than ten (10) years nor more than twenty-two (22) years. A direct appeal was dismissed when counsel failed to file an appellate brief. Pursuant to a petition under the Post Conviction Relief Act, however, Harper was later granted the right to file a direct appeal nunc pro tunc. It is this appeal which is now before the Court. Harper argues that the trial court erred by permitting a police officer to give inadmissible hearsay testimony and by instructing the jury that the evidence was “self-explanatory” as to his identity as the rapist. Harper also contends that his trial counsel and/or sentencing counsel were constitutionally ineffective in the following respects: (1) failing to call a witness who would have impeached the victim’s testimony on the issue of identification; (2) not calling appellant to testify on his own behalf at trial; and (3) allowing appellant to be denied his right of allocution at sentencing. We will address these claims seriatim.

The evidence established that, on September 26, 1986, at or about 5:30 a.m., appellant entered a house at 5739 West Knox Street in Philadelphia by cutting a window screen. Once inside the house, appellant entered the bedroom of ten year old Sakenna Walker, who was home alone at the time. The child was awakened when she felt someone touching her vagina. When she got out of bed and turned on a light, she recognized appellant, whom she knew from seeing him in the neighborhood. Appellant grabbed the child and pulled her back into bed and shut off the light. He ordered the child to remove her clothing, telling her that he had a knife. When the victim removed her clothing, appellant got on top of her and put his penis into her vagina.

After appellant left, the victim called her mother, and the police were summoned. The victim told police that it had been appellant who had raped her. She said that she knew him by the nickname “Ir-Ir” and that she had recognized his voice during the incident. A subsequent medical examination of the victim revealed redness and irritation at the opening of the victim’s vagina and cuts, bleeding and other signs of acute trauma in the internal portion thereof. There was also a small amount of discharge found at the opening of the victim’s vaginal area.

As a result of information supplied by the victim, it was announced by police radio that appellant was a suspect. When he was spotted by police, appellant fled on foot and ran into the rear entrance of a house located at 224 West Rittenhouse Street, where he was subsequently found hiding in a closet. Appellant was arrested and, after being identified by the victim, was charged with the offenses for which he was subsequently convicted. At trial, he was positively identified by the victim.

On the first day of trial, prior to calling Police Officer Leroy Wilson as a witness, the Commonwealth made the following offer of proof:

MS. BARATZ [Assistant District Attorney]: The Commonwealth’s next witness is Officer Leroy Wilson, who will testify that Ruth Holley, the defendant’s girlfriend, was on the crime scene that morning and was looking in the windows and in the doors of the crime scene and saw a sock on the bed and said, that’s the defendant’s sock. He will lay a foundation that she was excited in doing that.
Counsel is objecting that it is not an ex[c]ited utterance, and therefore, not admissable [sic] to one of those two exceptions to the hearsay rule.
One, the Commonwealth insists it was an excited utterance, that she was excited. There had been a rape that occurred there and she saw that and knew it was his sock and was excited about it.
Number two, even if it is not an excited utterance, it’s a present sense impression with an exception under Commonwealth versus Coleman....
MR. GROSS [Defense Counsel]: I would object. It was not an excited utterance. It’s an identification of an article of clothing.
THE COURT: It is a present sense impression.
MR. GROSS: That is not a [present] sense impression.

The objection was overruled, and the officer testified as follows:

Q. Officer, did you have occasion to go to 5739 Knox Street on the morning of September 26th 1986?
A. Yes, I did.
Q. What time did you arrive there?
A About eight o’clock, eight something, like that, in the morning.
Q. While you are there, did you have occasion to see somebody named Ruth Holley?
A. Yes, I did.
Q. How do you know her?
A. I know Ruth. I be knowing her for a long time because I work that district.
Q. Now, is this the mother, Ruth Holley, or the daughter? A. The daughter.
Q. Now, where was it that you saw the daughter, Ruth Holley?
A. I was going to the crime scene at that address when Ruth came up to the crime scene where I was.
Q. What happened when she came up there?
A. She came up to the crime scene and she was talking to me and she asked me what were we doing, and I was telling her we were guarding the scene on account of a rape. She was peeping through the window, trying to look through the door.
Q. What window was it that she was trying to peep into? A. I believe it was the front window.
Q. What door was she looking into?
A. It was like a hallway with a vestibule and this was to the right as you enter the apartment.
Q. So, was she looking into the room where the crime allegedly occurred?
A. Yes.
Q. What happened as she was looking into the window or the door?
A. She told me that they are her boyfriend’s socks, that it was her boyfriend’s socks that was on the bed in the room of the window she was looking into.
Q. How did she say that?
A. She said, “I think these are Irving’s. Those are my boyfriend’s socks laying on that bed.”
Q. I am going to show you what was marked Commonwealth Exhibit Six.
Is this one of the socks laying on the bed?
A. That seems to be the sock.
Q. Now, do you know who her boyfriend is?
A. No, I don’t recall him.
Q. You don’t know?
A. No.
Q. But, she said, she did say, “my boyfriend, Irving”?
A. Yes.
Q. Did she use any other word?
A. Not that I can recall.

The present sense impression exception to the hearsay rule permits testimony of “declarations concerning conditions or non-exciting events which the declarant is observing at the time of his declaration.” Commonwealth v. Coleman, 458 Pa. 112, 117, 326 A.2d 387, 389 (1974) (plurality opinion). The present sense impression exception has been characterized as follows:

This exception requires that the declarant see the event and make an observation about it to another person also present at the scene; the observation must be made at the time of the event, or so shortly thereafter that it is unlikely that the declarant had the opportunity to form the purpose of misstating his observation. McCormick, supra at 860-62. Commentators have generally characterized the occurrence giving rise to the declaration as an unexciting event. See Thayer, supra at 83; Morgan, Res Gestae, 12 Wash.L.Rev. 91, 98; but see Wigmore Evidence § 1747 (Chadboum rev. 1976). Reliability is considered assured by the contemporaneousness of the statement, and by the fact that the observation is made to another person. McCormick, supra.

Commonwealth v. Blackwell, 343 Pa.Super. 201, 212, 494 A.2d 426, 431 (1985). The Supreme Court has observed further that:

[ u]nder this exception the necessity for the presence of a startling occurrence or accident to serve as a source of reliability is not required. The truthftdness of the utterance is dependent upon its spontaneity. It must be certain from the circumstances that the utterance is a reflex product of immediate sensual impressions, unaided by retrospective mental processes. Restated, the utterance must be “instinctive, rather than deliberate.” Commonwealth v. Coleman, 458 Pa. 112, 117, 326 A.2d 387, 389 (1974).

Commonwealth v. Farquharson, 467 Pa. 50, 68, 354 A.2d 545, 554 (1976).

Ruth Holley’s statement that the sock which she observed on the victim’s bed belonged to her boyfriend, as related to the jury by Officer Wilson, was within the present sense impression exception to the hearsay rule. Holley’s statement was a contemporaneous verbalization of her having observed the sock on the bed when she looked into the window of the victim’s house. The evidence is that there was no opportunity for retrospective thought on Holley’s part prior to relating her impression to Officer Wilson. Therefore, the trial court did not err when it allowed Officer Wilson to relate Holley’s observation to the jury.

Immediately after defining the crime of rape in its charge to the jury, the trial court made the following comments:

After considering the evidence in this case, in order to find rape, are you convinced beyond a reasonable doubt, one, that the young lady was raped and, two, that the defendant did the raping — well that is self-explanatory from the evidence — that the defendant had sexual intercourse as I have defined it for you with the complainant, you then consider, was he the complainant’s spouse, was the intercourse accompanied by force or by threat of force that would prevent a person of reasonable resolution, using the conditions of this young lady, from resisting, and remember, she did not have to test the determination of her assailant to carry it out, if you find those elements that I have described to you and you are convinced that those elements exist beyond a reasonable doubt, then you find that the crime of rape has been committed, and if you find in this particular set of circumstances that the defendant was the assailant and you find it beyond a reasonable doubt, then you convict. (Emphasis added).

Appellant argues that by these comments the trial court, in effect, told the jury that it was “self-explanatory” from the evidence that he had raped the victim. The Commonwealth, on the other hand, suggests that the trial court merely stated that it was the issues involved in the case that were “self-explanatory” from the evidence.

“In reviewing jury instructions to determine whether reversible error has been committed by a trial court, we consider the charge as a whole. Error will not be predicated on isolated excerpts. Rather it is the general effect of the charge that controls.” Commonwealth v. Myers, 376 Pa.Super. 41, 50, 545 A.2d 309, 314 (1988). “Even if the court erred when it instructed the jury, we will reverse only if the error prejudiced the appellant.” Commonwealth v. Klinger, 369 Pa.Super. 526, 540, 535 A.2d 1060, 1066 (1987). A jury instruction given by the trial court will be upheld so long as it “sufficiently and accurately apprises a lay jury of the law it must consider in rendering its decision.” Commonwealth v. Prosdocimo, 525 Pa. 147, 154, 578 A.2d 1273, 1276 (1990).

After careful review of the entire charge given by the trial court, we conclude that there was no error. Appellant has attempted to seize upon a very brief, isolated excerpt from the charge and have us construe it in a manner suggesting an improper comment by the court regarding the ultimate issue of guilt or innocence. Review of the entire charge, however, reveals that the trial court gave instructions which accurately and evenhandedly apprised the jurors of the legal principles applicable to the instant case. Indeed, near the end of the charge, the trial court admonished the jury to “always remember, the principal] interest in this case is the identity of the perpetrator and you must find that the defendant is the one person who did it beyond a reasonable doubt.” When the charge is considered as a whole, it is clear that the trial court did not commit reversible error.

The standard we employ to evaluate claims of ineffective assistance of counsel has been stated by the Pennsylvania Supreme Court in the following manner:

The threshold inquiry in such claims is whether the issue/argument/taetic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Finally, we require that the defendant establish how counsel’s commission or omission prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). See also: Commonwealth v. Rollins, 525 Pa. 335, 344, 580 A.2d 744, 748 (1990); Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988). To establish prejudice under this standard “requires [a] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). See also: Commonwealth v. Pierce, 515 Pa. 153, 157-158, 527 A.2d 973, 974-975 (1987); Commonwealth v. Gainer, 397 Pa.Super. 348, 352, 580 A.2d 333, 335 (1990) (en banc). “Because the law presumes that counsel is effective, the burden of establishing ineffectiveness rests with appellant.” Commonwealth v. House, 371 Pa.Super. 23, 28, 537 A.2d 361, 363 (1988). See also: Commonwealth v. Floyd, 506 Pa. 85, 90, 484 A.2d 365, 367 (1984); Commonwealth v. McKendrick, 356 Pa.Super. 64, 71, 514 A.2d 144, 148 (1986). Moreover,

“[bjefore a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). We inquire whether counsel made an informed choice, which at the time the decision was made reasonably could have been considered to advance and protect defendant’s interests. See Commonwealth v. Hill, 450 Pa. 477, 301 A.2d 587 (1973). Thus, counsel’s assistance is deemed constitutionally effective once we are able to conclude the particular course chosen by counsel had some reasonable basis designated to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349 (1967).

Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983). See also: Commonwealth v. Gainer, supra; Commonwealth v. Akers, 392 Pa.Super. 170, 190, 572 A.2d 746, 756 (1990).

Appellant asserts that trial counsel was ineffective because he failed to call as a witness at trial one Mary Freeman, who would have offered testimony impeaching the victim’s identification of appellant as her assailant. Freeman testified at the hearing on appellant’s post-trial motions that three days after the rape the victim had told her that she didn’t know what had happened because she didn’t see who did it.

The failure of counsel to present possible witnesses is not per se ineffective assistance of counsel. See: Commonwealth v. Smallwood, 497 Pa. 476, 486-487, 442 A.2d 222, 227 (1982); Commonwealth v. Flanagan, 375 Pa.Super. 497, 500, 544 A.2d 1030, 1031 (1988). “It is well-settled that the failure of trial counsel to call a particular witness does not constitute ineffective assistance unless there is some showing that the testimony of the absent witness would have been beneficial or helpful in establishing the asserted defense.” Commonwealth v. Durst, supra, 522 Pa. at 6, 559 A.2d at 506. Moreover,

[ t]he decision whether to call a witness is a matter of trial strategy. Id., 497 Pa. at 487, 442 A.2d at 227. “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-691, 104 S.Ct. at 2068, 80 L.Ed.2d at 695.

Commonwealth v. Lee, 401 Pa.Super. 591, 600-601, 585 A.2d 1084, 1089 (1991). To prevail on his claim that trial counsel was ineffective for failing to call Mary Freeman as a witness at trial, appellant was required to establish that:

T) the witness existed; 2) the witness was available; 3) counsel was informed of the existence of the witness or counsel should otherwise have known of [her]; 4) the witness was prepared to cooperate and testify for appellant at trial; and 5) the absence of the testimony prejudiced appellant so as to deny him a fair trial.’

Commonwealth v. Nock, 414 Pa.Super. 326, 328, 606 A.2d 1380, 1381 (1992), quoting Commonwealth v. Petras, 368 Pa.Super. 372, 377, 534 A.2d 483, 485 (1987).

Appellant has established that the witness, Mary Freeman, existed and was available to testify and also that trial counsel was aware of the witness’s existence. If, in fact, Freeman would have testified that the victim had told her that she didn’t see who had raped her, such testimony would obviously have been helpful to the defense. Nevertheless, it remains to be determined whether counsel acted reasonably in determining not to call Mary Freeman as a witness at appellant’s trial.

When called as a witness at the hearing on appellant’s post-trial motions, trial counsel admitted that he was aware of Mary Freeman and had in fact anticipated calling her as a witness at appellant’s trial. However, counsel specifically denied that Freeman had ever told him that the victim had said to her that she had not seen her attacker. Counsel testified that had Freeman ever related such information he would have called her as a witness. Based upon the information which Freeman had actually provided, however, counsel determined that the witness’s testimony would not have been helpful, and may have been detrimental to the defense. He explained his reasons for not calling Freeman to testify at trial in the following manner:

A. One, because everything she would have been called to testify to that was admissible that did not relate to statements made by the mother who did not testify, was already brought out and admitted to by the complaining witness and it seemed from a statement that she gave our detectives, that the—
Q. Do you have that statement here?
A. Excuse me?
THE COURT: Well, wait a minute. Let’s not cross-examine before he gives you a full statement.
THE WITNESS: She describes the Erving, the boyfriend, as being a white man. It was not clear from the testimony of this complaining witness that he was a white man. It was — all that was asked for, wasn’t he lighter skinned than the defendant. And if I wanted to try to convince the jury that there was a misidentification and it was really the other guy, I thought I was better letting the jury think that he was also a black man, not a white man.

After careful review, we conclude that counsel’s decision not to call Mary Freeman as a witness was not so unreasonable as to warrant a finding that he was constitutionally ineffective. First, the record discloses that counsel did investigate the possibility of calling Freeman as a witness, but that Freeman did not relate to counsel or his investigators the information which appellant now argues would have been important to his defense. Secondly, based upon the information actually supplied by Freeman to counsel, it appears that her testimony may actually have hurt the defense. At trial, counsel attempted to establish that the victim had confused a former boyfriend of her mother, whose name was Irving, with appellant, who’s nickname was “Ir-Ir.” In this manner counsel attempted to offer an alternative to appellant as the suspect. When Freeman told counsel that the mother’s former boyfriend was a white man, however, it was not unreasonable for counsel to conclude that such information, if made known to the jury, would have been detrimental to the defense theory of misidentification. Under all of these circumstances, we conclude that counsel’s strategic decision not to call Mary Freeman as a witness was not so unreasonable as to constitute ineffective assistance of counsel.

Appellant next argues that trial counsel was ineffective by failing to call him as a witness in his own defense despite his communication to counsel of a desire to testify. The Superior Court has observed that:

The decision whether to testify in one’s own behalf is ultimately to be made by the accused after full consultation with counsel. Commonwealth v. Rawles, 501 Pa. 514, 523 n. 3, 462 A.2d 619, 624 n. 3 (1983); Commonwealth v. Wallace, 347 Pa.Super. 248, 254, 500 A.2d 816, 819 (1985); Commonwealth v. Mancini, 340 Pa.Super. 592, 607, 490 A.2d 1377, 1385 (1985). In order to support a claim that counsel was ineffective for not “putting” the appellant on the witness stand, the appellant must demonstrate either that (1) counsel interfered with his client’s freedom to testify, or (2) he gave specific advice so unreasonable as to vitiate a knowing and intelligent decision by the client not to testify in his own behalf. Cf. Commonwealth v. Martin, 346 Pa.Super. 129, 142, 499 A.2d 344, 351 (1985) (decision to testify was ultimately and solely the defendant’s, and strategic errors, without specific incidents of counsel impropriety, were insufficient to find trial counsel ineffective).

Commonwealth v. Fowler, 362 Pa.Super. 81, 87, 523 A.2d 784, 787 (1987). See also: Commonwealth v. Bazabe, 404 Pa.Super. 408, 414, 590 A.2d 1298, 1301 (1991).

Appellant testified at the post-trial hearing that he had informed counsel that he desired to testify at trial and that counsel had told him that he would get his chance to testify, but that counsel never did call him to testify. Appellant’s testimony was sharply contradicted, however, by the testimony of trial counsel, who explained the manner in which the decision not to call appellant as a witness was made. Counsel testified as follows:

BY MR. CHAPPELLE [Post-Trial Motions Counsel]:
Q. Now, did you and my client ever discuss his testifying, if you recall?
A. I know I talked over the case with him. I know I talked over to him what he knew about it and various things like that. I know I never — well, I shouldn’t say I know — I don’t have a recollection of ever having prepping him to testify: I’m going to ask you these questions, et cetera, et cetera; this is what the D.A. may ask you.
I do have a recollection — I think — pshew! I think it was — with respect to his testimony where what I said to him was, “I know it’s tough to sit here and listen to what they’re saying” and I don’t remember if I said “and not present witnesses” or “not present your side” or “not testify” — “but I really think in this case it’s better for you not to.”
And I explained to him why. And my recollection is that he somehow indicated agreement. I can’t say he said, “okay”. I may have said to him, “okay? Is that all right? I’m just going to close without your testifying.” And he either nodded or did something to that effect.
I would never — there are two decisions that I consider not to be my decision. All other decisions at trial I consider to be my decisions, whether I call alibi witnesses or don’t call them. The two decisions I do consider always to be the defendant’s decision: whether or not he testifies, though I could strongly advise him not to; or whether or not he takes a jury. But I may strongly advise him one way or the other.
And whether I specifically recall the incident — I mean, that’s the best of my recollection, that somehow he indicated to me. He may have indicated that he wanted to testify. There was a point — as a matter of fact, there was a point where we discussed, when we discussed his not testifying, but getting on the stand solely for the purpose — it was up in the cell room. I talked to him about it, “I may put you on just to try on the sock.”
And it was not in the courtroom that I decided not to do it. It was after — oh, well, first of all, I looked at it in the courtroom. I said, it looks to me like it’s one of those one-size-fits-all socks, so it’s not going to be anything that we’re going to be able to demonstrate by your trying it on.
What convinced me not to have him do that was, I asked him to roll up to show me what he was wearing and he was wearing a pair of socks that were exactly the same kind of sock. Now, true, it was a white sock but there are lots of kinds of white socks. This was a particular kind of white socks. The ones he was wearing were exactly the same.
Q. You’re talking about tube socks?
A. Tube socks of a particular length, where the band is in a particular place and it’s not knit all the way up, versus knit.
And I said, there’s no way I’m going to — I said, you know, if there were a way I could get you to change your socks — do you have a change of socks somewhere? Might have been the day or night before. So you change your socks at the prisons. Do you have other socks at the prison? He said, no. I said, if those are the only socks you have, I’m not going to put you on the stand to put on the sock.
Q. Well, do you remember — you remember having that conversation with him?
A. Yes, I do.
BY MR. CHAPPELLE:
Q. You don’t recall specifically discussing with my client as to whether he should testify about where he was at the time of this incident?
A. Everything that he would have said about where he was at the time of the incident came out through the Commonwealth’s case when I introduced his statement. I didn’t see any other reason to put him on the stand and subject him to cross-examination where lots of other things might come out that are harmful, when his version came out through the Commonwealth’s statement.
Q. So, more or less you had decided when you read the statement and had some contact with my client, that it wouldn’t be wise for him to testify, right?
A. That it wouldn’t be wise?
Q. Yes.
A. I don’t know when I formed a conclusion. I know that he has trouble expressing himself. I didn’t think he would be a great witness. I didn’t know if the Commonwealth was going to use the statement or not in their case in chief. Once they used it in, which they offered his explanation, because he gave the police in that an explanation as to where he was....

We are satisfied that the trial court did not err when it denied post-trial relief on grounds that trial counsel had been ineffective for failing to allow appellant to testify. It is readily apparent from trial counsel’s testimony at the post-trial hearing that counsel did not interfere with appellant’s right to testify on his own behalf and that counsel’s advice to appellant not to testify was not so unreasonable as to constitute ineffective assistance. Rather, if is clear that it was appellant who decided not to testify after receiving counsel’s advice. As such, “appellant ‘must bear the burden of his decision not to testify and [he] cannot shift the blame to his attorney.’ ” Commonwealth v. Fowler, supra, 362 Pa.Super. at 87, 523 A.2d at 788, quoting Commonwealth v. Mancini, 340 Pa.Super. 592, 610, 490 A.2d 1377, 1385 (1985).

Finally, appellant argues that his counsel at sentencing was ineffective for faffing to object when the trial court failed to permit him to make a statement prior to the imposition of sentence. Review of the record discloses that at the sentencing hearing a dispute arose as to the nature of appellant’s employment history as reflected in the pre-sentence report. Therefore, the court questioned appellant about the history of his employment. Prior to imposing sentence, however, the court did not inform appellant that he had a right to make a statement. The court merely asked defense counsel if he had anything else, to which counsel replied: “Not at this time.” Thereafter, sentence was imposed.

Pa.R.Crim.P. 1405(a) provides:

At the time of sentencing, the judge shall:
(a) afford the defendant the opportunity to make a statement in his own behalf and afford counsel for both parties an opportunity to present argument and information relative to sentencing;

This rule has been interpreted by the Pennsylvania Supreme Court as guaranteeing a defendant the right of allocution. Thus, in Commonwealth v. Thomas, 520 Pa. 206, 553 A.2d 918 (1989), the Court said:

The right to personally address the court prior to sentencing is of ancient origin. Often referred to as the “ancient inquiry,” the practice originated in the English common law where, as early as 1689, any failure to permit a defendant to plead for mercy required reversal. Although at some points in our history the right has been limited, see, e.g. Commonwealth v. Gates, 429 Pa. 453, 240 A.2d 815 (1968), Commonwealth v. Senauskas, 327 Pa. 541, 194 A. 646 (1937), our modern cases have expressly rejected the notion that allocution is an anachronism in modern criminal practice. In Commonwealth v. Knighton, 490 Pa. 16, 19, 415 A.2d 9, 11 (1980), we recently stated:
Notwithstanding the modem innovations in our law, nothing has “lessen[ed] ... the need for the defendant, personally, to have the opportunity to present to the court his plea in mitigation. The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 658, 5 L.Ed.2d 670, 673 (1961) reh’g. denied 365 U.S. 890, 81 S.Ct. 1024, 6 L.Ed.2d 201.
Moreover, our rules of criminal procedure guarantee the right to all who stand convicted of crimes.
Pa.R.Crim.P. 1405, which was promulgated in 1973, provides in pertinent part as follows:
Rule 1405. Sentencing Proceeding
At the time of sentencing, the judge shall:
(a) afford the defendant the opportunity to make a statement in his own behalf and afford counsel for both parties an opportunity to present argument and information relative to sentencing[.]
(Emphasis supplied.) Since a trial judge will not know in most cases whether a defendant is aware of his right to address the court prior to sentencing, but Rule 1405 requires the court to afford the defendant an opportunity to speak, we understand Rule 1405 to require the trial court to inform the defendant of his right to speak prior to sentencing.

Id. 520 Pa. at 208-209, 553 A.2d at 919.

The decision in Thomas, the Supreme Court has said, is not to be applied retroactively. Id., 520 Pa. at 210, 553 A.2d at 919. Appellant was sentenced on February 23, 1988, almost a year before the decision in Thomas. Counsel, therefore, will not be deemed ineffective for failing to object when the trial court, at the time of sentencing, failed to specifically inform appellant of his right of allocution.

The judgment of sentence is affirmed.

      . Appellant additionally asserted in his brief the contention that trial counsel had been ineffective for failing to object to the incomplete polling of the jury following announcement of the verdict. This issue, however, was withdrawn as a basis for relief at the time of oral argument before this Court.

      . Later testimony by Sergeant Robert Feeney related a statement given by appellant in which he referred to Ruth Holley as the girl with whom he lived, thus, making it clear that appellant was the boyfriend to whom Holley was referring.