text:
    619 A.2d 339
    Robert D. and Jackie NORRIS, Appellants, v. Lisa TEARNEY and Robert D. Norris, Jr.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1992.
    Filed Jan. 14, 1993.

      Robert S. McMichael, Oxford, for appellants.
    Richard A. Katz, Lancaster, for appellee.
    Before CAVANAUGH, DEL SOLE and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an order denying Robert and Jackie Norris, appellants-grandparents, visitation with their grandson, two-year-old Damien Tearney. We agree that visitation would interfere with the parent-child relationship under the facts of this case, and therefore, affirm.

Appellants’ son, Robert Norris, and appellee, Lisa Tearney, met and began a relationship while both were hospitalized for depression in the psychiatric unit of a local hospital. Shortly after the relationship began, appellee became pregnant, and within a few months, Robert ended the relationship. Appellant Jackie Norris testified that she attempted to stay in touch with Lisa and offered to help her. The record is clear that Mrs. Norris was the one who attempted to maintain a relationship with Lisa, who did not reciprocate. Lisa has a nine-year-old daughter, Amber, from another relationship which also did not culminate in marriage.

The record reveals that Lisa wanted appellants’ son to marry her and was devastated by his abandonment. The testimony of Lisa’s psychologist, Dr. Eugene Homan, established that when Amber was born to Lisa, the failure of the relationship with Amber’s father caused Lisa’s first bout with depression, which resulted in her 1989 hospitalization. During that time, she met appellants’ son. Dr. Homan testified that when Lisa became pregnant with Damien, and Robert refused to continue a relationship with her, her depression recurred. Lisa was hospitalized again shortly after Damien’s birth. Dr. Homan testified that Lisa “was definitely depressed, struggling, falling apart ... struggling with whether she could do it and whether she should consider adoption.” Notes of Testimony (“N.T.”), 2/18/92, at 98.

Mrs. Norris testified that she visited Lisa and Damien in the hospital and brought Damien to their home a few times between his birth in March, 1990, and May, 1990. There were no further visits until December, 1990, due to two significant occurrences. First, Robert married another woman on June 2, 1990. Second, Robert denied paternity of Damien. Eventually, blood testing established that Robert Norris indeed is the father of Damien. Id. at 50, 57. Robert Norris, by his choice, has had no contact with Damien. He now has a child by his wife. Id. at 63.

Grandparents assert that it is the policy of the Commonwealth of Pennsylvania to permit visitation by grandparents unless overriding factors are involved and that none exist in the present case. They claim that they met their burden of establishing that their visitation with Damien is in his best interest and that appellee failed to prove that there would be any detriment to Damien by permitting them visitation.

Whether the matter concerns custody or visitation, our paramount concern is the best interest of the child. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). This is equally true in cases involving whether grandparent visitation rights should be awarded. Bishop v. Piller, 399 Pa.Super. 52, 581 A.2d 670 (1990), petition for allowance of appeal granted, 527 Pa. 661, 593 A.2d 837 (1991). In Stolarick v. Novak, 401 Pa.Super. 171, 584 A.2d 1034 (1991), we reiterated our scope of review as defined in Mumma v. Mumma, 380 Pa.Super. 18, 21, 550 A.2d 1341, 1343 (1988), as follows:

In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported in the record, nor are we bound by the court’s inferences drawn from the facts. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 294-95, 368 A.2d 635, 637 (1977). However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Id. at 295, 368 A.2d at 637. Only where we find that the custody order is “manifestly unreasonable as shown by the evidence of record ...” will an appellate court interfere with the trial court’s determination.

See also Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988); Andrews v. Andrews, 411 Pa.Super. 286, 601 A.2d 352 (1991). “In a grandparent visitation case, the grandparent has the burden to prove that it is in the child’s best interest to have ‘some time’ with the grandparent.” Bishop v. Piller, supra, 399 Pa.Super. at 56, 581 A.2d at 672 (citation omitted).

23 Pa.C.S. §§ 5311-5313 provide three instances in which the court may consider visitation for grandparents. Section 5312 is applicable to the instant case.

[W]hen parents have been separated for six months or more, the court may, upon application of the ... grandparent ... grant reasonable partial custody or visitation rights, or both, ... if it finds that visitation rights or partial custody, or both would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application.

23 Pa.C.S. § 5312 (emphasis added).

Appellants first claim that they satisfied their burden of proof that visitation would be in Damien’s best interest, as evidenced by the trial court’s statement, “This Court does not in any way question the paternal grandparents’ love of and devotion to Damien.” Trial court opinion, 7/7/92, at 3. We agree that the record certainly does support the trial court’s conclusion that appellants love their grandson and desire to establish a relationship with him even though their son, Damien’s father, does not. However, their expressions of love and desire to be involved with Damien do not satisfy the requirement that their visitation with Damien must be in his best interest. Further, the trial court, while acknowledging their love, clearly concluded that “it is not in the best interest of Damien to maintain visitation with his paternal grandparents.” Id. at 4. The trial court determined that visitation with appellants “adversely affects mother and this, in turn, creates a severe negative impact upon Damien.” Id.

Appellants contend that they satisfied their burden of proof by establishing a pattern of visits that were helpful to appellee and assert that there was no concrete evidence that the visits were a detriment to Damien. We disagree. Appellee testified that she simply could not cope with appellants’ visits with Damien in light of the fact that their son had abandoned her and Damien. Lisa testified that she was unable to separate appellants from their son. It is apparent from our review of the record that on an intellectual level Lisa understands appellants’ desire to see Damien. Unfortunately, she suffers from severe depression which is exacerbated by appellants’ attempts to be involved with Damien.

There was extensive testimony from Lisa’s treating psychologist of the extent of her depression. Dr. Homan testified that when Lisa’s depression builds, she becomes dysfunctional and overwhelmed. He described it as follows:

All tasks seem monumental. She feels that she’s dead inside. It’s just a total blackness and being down, feeling worthless, hopeless. She almost becomes paralyzed or numb with her feelings, and this is pretty visible. It’s not like a hidden thing that anyone who knows Lisa, if they were around her any of these times, they could see what’s happening, she’s heading downhill.

N.T., 2/18/92, at 68.

Appellants attempt to equate the instant case with Bishop v. Piller, supra. In Bishop, as here, the child’s parents never married. However, the father’s name was placed on the birth certificate and his insurance covered the costs of the birth. Additionally, the mother and child lived in the paternal grandmother’s home after the child’s birth. Subsequently, the child’s father became incarcerated, but father and grandmother visited with the child and provided food, clothing, and baby formula. The trial court in Bishop granted the grandmother’s request for visitation and specifically determined that the mother was unable to produce concrete evidence that there would be any detriment to the child by spending time with his grandmother.

In the present case, both Lisa and her psychologist described the effect of the visits with the Norrises on Lisa and the resulting effect on Damien. Dr. Homan testified that after Damien’s birth, Robert Norris’s rejection of Lisa precipitated her regression and subsequent hospitalization. N.T., 2/18/92, at 77. When asked to try to capture the essence of Lisa’s difficulty coping with visitation by the Norrises, Dr. Homan stated:

Well, she sees it as just totally unfair in feeling that people have not done what they’re supposed to do, and on the other hand, people come in and have control over her and they don’t have rights to. It reactivates many conflicts areas.
Really part of it is I think it’s unfair if he’s not involved, should they be involved. I think she feels very much that there’s a difference of values and style. She feels she can’t trust them. She feels she may be losing her son to them. It gives Bob some access and which I think the angry side of her feels he doesn’t deserve anything that he’s totally abandoned her and has shown no interest at all in this child in any way with any visiting.
So, yes, it stirs up an awful lot of feeling which is very conflicted. Lisa will say to me I know I shouldn’t feel this way but it’s overwhelming to her, and .1 know I spent considerable time over several months trying to advocate for her to try to accommodate to this thing that if grandparents could be involved in a helpful way, maybe this could be of help and that it would give you a day where you would have a break so to speak.
But as we discussed it over and over, I know I became convinced that there is—this just won’t budge. It’s like, you know, well, it’s tremendously deep.

Id. at 77-78. When asked about the effects on Lisa if the grandparents would be granted regular visits, Dr. Homan stated, “Honestly, it scares me some. I feel that she could decompensate, deteriorate. I truly feel that.” Id. at 79. Such a deterioration of Lisa’s mental health then has a domino effect, because when she becomes incapacitated due to her depression, she cannot care for herself or her children. Id.

Lisa also described the effect of the visits with the grandparents on her psyche and the concomitant effect on her son.

The Norrises wanted to visit with Damien and although it was difficult for me, I let it proceed because I felt that’s the way it should be. After a few visits I, myself, could not, I hate to keep hearing this word, I just couldn’t deal with seeing them and so I discontinued it.
It was more my concern of how I was reacting to their visits, and I didn’t know if it affected the way that I reacted to Damien, and I thought it was not right. So instead of continuing my behavior like that, I said, no, I just had to stop it.

Id. at 121. Counsel for appellee asked her how the visits affected her relationship with Damien. Lisa responded:

Physically, it really didn’t change but when I had to deal with my. son, I felt a distance. I felt I just—there was something that was lacking there. And until some time lapsed, you know, I eventually got over that feeling but it made me feel very guilty that I should feel that way towards my own son.

Id. On cross-examination, counsel for appellants also asked Lisa about the effect of appellants’ visits on Damien.

Q. And you said aside from that time it took for it [the depression] to pass, it didn’t affect you and Damien as being mother and child?
A. Yes, it did.
Q. You said earlier it didn’t affect him at all, it affected you?
A. That’s right, and I’m the one that has to care for Damien.
Q. Well, you were still able to take care of him, weren’t you?
A. Barely. He got his food and diaper changed but the emotions weren’t there and that’s, to me, what’s more important—not more important but equally important.

Id. at 137-38.

The record clearly supports the findings of the trial court. Like the trial court, we have no doubt that visits with the grandparents under the facts of this case interfere with the parent-child relationship. While it likely would be in this child’s best interest to have contact with his grandparents, in light of Lisa’s severe depression, and the fact that her condition worsens upon contact with the Norrises, the parent-child relationship suffers. Damien is still very young. He is totally dependent upon his mother, not only for his physical needs, but also for his emotional nurturing.

We also reject appellants’ argument that since Amber visits with her paternal grandparents, and the maternal grandparents are permitted to visit both children, “justness” demands that they, too, should be permitted to visit. First, there is no court-ordered visitation for Amber’s paternal grandparents. Second, Lisa testified that Amber visits her paternal grandparents on occasional holidays when Amber’s father exercises his visitation rights. Third, and most importantly, we are concerned here only with the effect of the Norris’s visits on Lisa and Damien. Nothing else is relevant.

We sympathize with the Norrises and find their interest in maintaining a relationship with Damien commendable even though their son has abandoned his child. However, the reality of this situation is that their involvement with the child adversely affects appellee’s mental health, which in turn adversely affects Damien. A reading of appellants’ testimony and their brief conjures up images of a perfect world where fairness and “doing the right thing” are all that matter. However, all parties in this situation must cope with the realities of it. Indeed, if “fairness” were all that mattered, Robert would be playing a vital role in the life of Damien Tearney. We are bound to give effect to every word of a statute and to construe each word according to its plain meaning. 1 Pa.C.S. § 1903(a). Where words are not ambiguous, they will not be disregarded. Sanders v. Loomis Armored, Inc., 418 Pa.Super. 375, 614 A.2d 320 (1992).

While it may appear illogical to appellants that Lisa reacts so negatively to Damien’s visits with them, it would seem that this emotional reaction is the hallmark of her mental illness. The visits exacerbate her condition and pose a threat to her ability to nurture her son and provide a proper environment for their relationship. We can find no compelling reason which would justify such a compromise in the child’s well-being. Thus, since the Norris’s visitation interferes with the parent-child relationship, the trial court was required to deny it.

Due to Damien’s young age, the trial court was unable to ascertain his feelings about the visits. Aside from that fact, the following passage from another case involving grandparent visitation is pertinent.

We have stated that “the hearing judge has the opportunity to observe the demeanor of the witnesses and therefore is in the best position to determine their credibility and sincerity.” Commonwealth ex rel. Miller v. Miller, 329 Pa.Super. 248, 255, 478 A.2d 451, 455 (1984). Thus, in exercising our independent judgment we are mindful of the fact that the trial judge had the opportunity to meet with the parties and observe their testimony. He spoke with the children in chambers and listened to the expert psychological testimony. He was able to directly evaluate the children’s needs based on his first-hand observation of the children, the experts and the relatives.

Suroviec v. Mitchell, 347 Pa.Super. 399, 401-02, 500 A.2d 894, 895-96 (1985).

We find no abuse of discretion on the part of the trial court, and conclude that its factual findings support its factual conclusions. Moreover, as the trial court’s conclusions are not unreasonable in view of its factual findings, we may not interfere with those conclusions. McMillen v. McMillen, supra.

Order affirmed.


source: Caselaw Access Project

author: McEWEN, Judge.

license: Public Domain

text:
    619 A.2d 343
    Kelce MOSLEY, James M. Rizor, Lloyd A. Rohanna, Stephen C. Love and Robert Elliott, Individuals, Appellants, v. OBSERVER PUBLISHING COMPANY, A Corporation, and David F. Pollock, Appellees.
    Superior Court of Pennsylvania.
    Argued June 4, 1992.
    Filed Jan. 19, 1993.

      Joseph J. Hinchliffe, Philadelphia, for appellants.
    David F. Pollock, Dist. Atty., Waynesburg, appellee, in pro per.
    Before McEWEN, TAMILIA and BROSKY, JJ.
   McEWEN, Judge.

This appeal has been taken from an order which (1) granted the preliminary objections in the nature of a demurrer filed by David F. Pollock, the Greene County District Attorney (hereinafter appellee), and (2) dismissed appellee as a defendant in the defamation action instituted by Kelce Mosley, James M. Rizor, Lloyd A. Rohanna, Stephen C. Love and Robert Elliot (hereinafter appellants) against appellee and Observer Publishing Company, publisher of the Observer-Reporter, a daily newspaper circulated in Greene and Washington Counties. We affirm.

Appellants have in their brief set forth the factual history underlying this appeal:

Plaintiff-Appellants Mosley, et al, hold or held the offices of the county commissioners, county treasurer and county administrator of Greene County. Defendant-appellee Pollock is the district attorney of Greene County. The Observer Publishing Company is owner of the Observer-Reporter, a newspaper, and it is a defendant in this action. However, the publishing company is not a party to this appeal.
The communications giving rise to this case are epitomized by the relevant headlines in the Observer-Reporter reading: “F.B.I., D.A. Probe Allegations of Investment Kick Back,” “County is Being Investigated for Treasury Bond Transactions,” and “Controller: Commissioners Traded Bonds After Warning.”
On June 1,1990, the Observer-Reporter published an article by Bob Neibala headlined, “F.B.I./DA Probe Allegations of Investment Kickbacks.” The article states, inter alia, that the Federal Bureau of Investigation and the District Attorney were working together to investigate allegations that “Greene County officials” received kickbacks from promoters of investments made with Greene County funds. The article indicates that the sources for the article were (1) an interview of defendant Pollock, (2) a search warrant sought by and predicated on information provided by defendant Pollock, and (3) an audit of county funds prepared by M.J. Milinovich, C.P.A. If the conduct of plaintiffs had been as described in the articles, plaintiffs would be subject to criminal prosecution for personally profiting or benefiting from the illegal investment of public funds.

The standard of review which we apply to a challenge to an order which sustains preliminary objections in the nature of a demurrer was set forth by our Supreme Court in Allegheny County v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985):

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader’s right to relief. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970).
Since the sustaining of a demurrer results in a denial of the pleader’s claim or dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965). If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. Packler v. State Employment Retirement Board, 470 Pa. 368, 371, 368 A.2d 673, 675 (1977); see also Schott v. Westinghouse Electric Corp., supra [436 Pa.] at 291, 259 A.2d at 449.

Appellants rely for the claim against the district attorney upon the search warrant and upon the statement of appellee recounted in the Observer-Reporter as follows:

Our office did some legwork for the Federal Bureau of Investigation for obtaining important records in order to determine if certain investment activities are above board. We’re acting with the FBI, but it’s really too soon for our office to comment.

Appellee urges this Court to affirm the order of the trial court because he is immune by reason of well established absolute privileges, specifically, the absolute privilege accorded to communications in a judicial proceeding and the absolute privilege accorded to high public officials.

The absolute privilege accorded judicial communications was quite succinctly described by our Supreme Court in Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53 (1971), when it stated:

All communications pertinent to any stage of judicial proceedings are accorded an absolute privilege which cannot be destroyed by abuse____ (citations omitted).
Thus statements by a party, a witness, counsel, or a judge cannot be the basis of a defamation action whether they occur in the pleadings or in open court. Id. at 323, 275 A.2d at 56, cited in Passon v. Spritzer, 277 Pa.Super. 498, 502, 419 A.2d 1258, 1261 (1980).

Appellants do not dispute that the search warrant was a judicial communication, but contend that the application for warrant was replete with “false” statements. However, the Supreme Court in its pronouncement made clear and certain that once absolute privilege attaches, it may be neither lost nor destroyed. Thus, the application for search warrant is not a communication for which a cause of action will lie.

Similarly, the privilege accorded governmental officials cloaks appellee with immunity from claims of appellants based upon his statement as District Attorney and as recited in the June 1,1990, edition of the Observer-Reporter, Since the late and venerable Judge Theodore 0. Spaulding so aptly addressed this question for this Court in McCormick v. Specter, 220 Pa.Super. 19, 275 A.2d 688 (1971), we need but resound his perceptive decision:

Two important contending interests are pertinent: the right of the individual to be secure in his reputation and the need of society for the free performance and full disclosure of its governmental business. In Matson [v. Margiotti ] supra, the Supreme Court stated: “Absolute privilege, as its name implies, is unlimited, and exempts a high public official from all civil suits for damages arising out of false defamatory statements and even from statements on actions motivated by malice, provided the statements are made or the actions are taken in the course of the official’s duties or powers and within the scope of his authority or as it [is] sometimes expressed, within his jurisdiction.” [Citations omitted.] (Emphasis in original.) 371 Pa. [188] at 193-194, 88 A.2d [892] at 895 [ (1952) ].
Our Supreme Court has never enunciated any test or standard to determine when a “high public official” is acting within the scope of his “official duties”. Here, we find that appellee’s press conference was a proper undertaking of that office on the basis that the responsible performance of the District Attorney’s office warrants his informing the public of matters pending in that office. However, it must be emphasized that it is the public interest—not that of the official involved—which provides the rationale for the immunity. Thus, given the great potential for harm, the privilege must be limited to those statements and actions which are in fact “closely related” to the performance of those official duties. Although the difficulties in application are readily apparent, such a test at least provides some guidance for the trial court’s determination of when a “high public official’s” statements or actions fall within the scope of absolute privilege.
Applying the above “test” to the press conference at issue, it is clear that summary judgment was properly granted. Here, the District Attorney was involved in an ongoing investigation of appellants’ business dealings with the City of Philadelphia. Although some of his comments may have been excessive, they were nonetheless “closely related” to a matter pending in his office and thus within the scope of the privilege.

Thus it is that we affirm the decision of the distinguished Judge George P. Kiester to dismiss the cause of action of appellants as to the district attorney.

Order affirmed.

      . Pa.R.Civ.P. 1030 requires that all affirmative defenses, including the affirmative defense imposed by appellee to the instant complaint, namely, immunity from suit, be pleaded in a responsive pleading as "New Matter". Appellee, however, undertook to present the defense in preliminary objections in the nature of a demurrer, despite the quite clear restrictions of Pa.R.Civ.P. 1028 and requirement of 1030. Appellants failed to object to the form of pleading and have, therefore, waived the right to raise the procedural defect that would require appellee to proceed by answer with new matter. Rufo v. Bastian-Blessing Co., 417 Pa. 107, 207 A.2d 823 (1965); Bloom v. DuBois Regional Medical Center, 409 Pa.Super. 83, 597 A.2d 671 (1991).

      . The search warrant is reproduced and attached hereto as Exhibit “A”.

      . The United States Supreme Court, in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), as it balanced the competing notions attendant the issue of official immunity, echoed with admiration the rationale of Judge Learned Hand for the principle of official immunity:
      “It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.
      “The decisions have, indeed, always imposed as a limitation upon the immunity that the official’s act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him.” Gregoire v. Biddle, 2 Cir., 177 F.2d 579, 581.

        Barr v. Matteo, supra, 360 U.S. at 571-72, 79 S.Ct. at 1339-40.
      The Supreme Court then intoned:
      We are told that we should forbear from sanctioning any such rule of absolute privilege lest it open the door to wholesale oppression and abuses on the part of unscrupulous government officials. It is perhaps enough to say that fears of this sort have not been realized within the wide area of government where a judicially formulated absolute privilege of broad scope has long existed. It seems to us wholly chimerical to suggest that what hangs in the balance here is the maintenance of high standards of conduct among those in the public service. To be sure, as with any rule of law which attempts to reconcile fundamentally antagonistic social policies, there may be occasional instances of actual injustice which will go unredressed, but we think that price a necessary one to pay for the greater good. And there are of course other sanctions than civil tort suits available to deter the executive official who may be prone to exercise his functions in an unworthy and irresponsible manner. We think that we should not be deterred from establishing the rule which we announce today by any such remote forebodings.

        Barr v. Matteo, supra, 360 U.S. at 576, 79 S.Ct. at 1342.

      . The author of this Opinion is a former District Attorney whose memory and musing inspires this commentary:
      It has been said that the perils of public office are many and even seem to engage in unflagging pursuit of the office holder. No single peril, of course, endangers the public, political, and personal life of the office holder as does the press. It is thus ironic that, while the press is in constant pursuit of the official, some officials pursue the press. Few pursuits are so deadly for, as one commentator observed: Meeting the press is like having lunch with a cobra, you become the main course. The prerogatives of the office of prosecutor confer enormous power upon that officer. Similarly, the rights bestowed by the constitutional fathers confer awesome power upon the press. Thus, as that commentator further observed: Even a monk would be slow to bless the union of such repositories of power, so unholy can be their alliance.


author: BECK, Judge:

text:
    619 A.2d 347
    David L. STYER, Esquire v. Randall W. HUGO, Esquire, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 11, 1992.
    Filed Jan. 19, 1993.

      Randall W. Hugo, in pro per.
    David L. Styer, in pro per.
    Before WIEAND, McEWEN and BECK, JJ.
   BECK, Judge:

This appeal from a judgment in favor of appellee, David L. Styer, Esquire, and against appellant, Randall W. Hugo, Esquire, poses the following issue:

Is a lawyer who originally represented the plaintiffs in a personal injury action pursuant to an oral contingent fee agreement and who, upon being discharged by his clients prior to the termination or settlement of the action, requested no fee from his clients but agreed with the clients’ second lawyer that any fee received by the second lawyer would be shared with the first lawyer, entitled to recover a portion of the contingent fee ultimately received by the clients’ third lawyer who settled the personal injury action and had no agreement with the clients or either of their prior lawyers regarding the payment to the first lawyer of a portion of the fee?

This interesting question arises from the following facts. On November 24, 1984, Isaia Piccinino was injured at a furniture store when a chair on which he was sitting collapsed under him. At some time following this incident, Mr. and Mrs. Piccinino retained appellee, David Styer, Esquire, to represent them in a personal injury action seeking damages allegedly arising from Mr. Piccinino’s fall. Although no written fee agreement between the Piccininos and Styer was produced, the trial court nevertheless found that the Piccininos had agreed to pay Styer a one-third contingent fee.

Styer filed his entry of appearance and a writ of summons against the defendants in the Piccininos’ action on November 5, 1986. He filed a complaint on January 29, 1987. Thereafter, he conducted discovery in the matter. Most of his time was spent attempting to establish the true cause of Mr. Piccinino’s medical problems. Apparently, Mr. Piccinino had a highly litigious past and had filed numerous lawsuits and claims. In some of those prior matters, Mr. Piccinino had sought recovery for injuries similar to those that he now claimed to be caused by his fall from the chair. Thus, there was a question as to whether Mr. Piccinino’s claimed injuries were actually pre-existing conditions. Although it would appear that no actual settlement discussions took place during Styer’s representation of the Piccininos, he- did convey a demand of $1.5 million dollars to the defendants. This was not accepted.

At some point in late 1988, the Piccininos discharged Styer. They were dissatisfied with the progress of the case and thought new counsel might expedite resolution of the matter. On December 12, 1988, Styer withdrew his appearance on behalf of the Piccininos. He did not request the payment of any fees from the Piccininos at that time.

The Piccininos then retained Christopher Brill, Esquire. Apparently Brill and Styer agreed to a fee sharing arrangement, which Brill confirmed in a letter to Styer, as follows:

Dear Dave [Mr. Styer]:
This letter will confirm our discussions of November 29, 1988 wherein you transferred the above file to me for future handling. This will also confirm our agreement to equitably divide any attorney fee realized in this case along the lines we discussed.

cc: Mr. and Mrs. Isaia Piccinino

P.S. to Dave only: As further clarification of the above, we have agreed that you will receive at a minimum one-third of the attorney fee realized and that this amount will be adjusted upward as circumstances permit depending upon the ultimate recovery, time expended to obtain same, etc. Of course, your costs advanced will also be reimbursed from any eventual settlement or verdict proceeds.

Very truly yours,

Christopher J. Brill

Both the testimony at trial and the foregoing letter reveal that the Piccininos were fully informed as to this fee sharing arrangement.

Brill expended very little time in prosecuting the Piccininos’ case. It became clear from the outset that Brill and the Piccininos had starkly different views regarding the value of the case. Brill thought a settlement demand of somewhat higher than $50,000 might be reasonable, whereas the Piccininos wished to demand $750,000. As a result, Brill suggested that the Piccininos find themselves another lawyer.

The Piccininos then retained appellant, Randall W. Hugo, Esquire. They located Hugo through a referral from another of Hugo’s clients. On October 30, 1989, the Piccininos executed a written contingent fee agreement with Hugo in which they agreed to pay him a 33^% contingent fee, plus expenses. The agreement made no mention of any fee that would be due to Styer and recited that it was the entire agreement between the parties. At the time this agreement was executed, the Piccininos did not inform Hugo that Messrs. Styer and Brill had agreed, with the Piccininos’ approval, to share any fee Brill might have recovered.

On the same day that the Piccininos executed the contingent fee agreement with Hugo, Brill wrote to the Piccininos and confirmed that he would not charge them any fee for the services he had rendered them, but that whenever it was convenient for them he would expect reimbursement of $112.50 in costs he had incurred on their behalf. This letter also confirmed that Hugo would thereafter represent the Piccininos. No copy of this letter was sent to Styer, nor did Brill notify Styer through any other means that he had given up the representation of the Piccininos and had relinquished his claim to any fees.

On November 2, 1989, Brill wrote to Hugo confirming that he had withdrawn and that he had turned the entire file over to the Piccininos. Brill did not inform Hugo of his arrangement with Styer regarding fee sharing. It was not until Hugo reviewed the file in the Piccininos’ case, which was after the Piccininos had signed the contingent fee agreement with Hugo, that he became aware of this arrangement.

Hugo entered his appearance on behalf of the Piccininos on November 3, 1989. He immediately commenced work on the case and, after conducting further discovery and engaging in negotiations over a period of months, achieved a settlement for $105,000 in January 1990. The Piccinino action was terminated on February 7, 1990 and Hugo received his agreed contingent fee.

After the settlement was concluded and Styer learned of it, he contacted Hugo to request payment of a portion of the fee Hugo had received in consideration of Styer’s previous work in the case. Brill also called Hugo to urge him to pay Styer a portion of the contingent fee. Hugo refused, but did reimburse Styer for the out-of-pocket expenses he had incurred in representing the Piccininos.

Styer then initiated this action against Hugo, contending that Hugo had a legal obligation to remit a portion of the fee to Styer. He argued that he was due compensation on a quantum meruit basis because unless such compensation were paid, Hugo would be unjustly enriched by having received the benefits of Styer’s work on the case. After a trial without a jury conducted on July 26, 1991, the trial court entered a verdict in favor of Styer in the amount of $11,000, or approximately one-third of the fee Hugo had received. After post-trial motions were denied, Hugo filed this timely appeal.

On appeal, Hugo argues that the trial court erred in refusing to grant judgment n.o.v. in his favor. We agree.

As the Supreme Court has recently opined:

In reviewing a motion for judgment n.o.v., “the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.
There are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant.

Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003, 1007 (1992) (citations omitted).

In the instant case, Hugo seeks judgment n.o.v. on the first of the foregoing grounds, i.e., he argues that the trial court committed a clear error of law in applying the doctrine of unjust enrichment to the facts of this case.

“Unjust enrichment” is essentially an equitable doctrine. The elements of unjust enrichment are “benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.” Wolf v. Wolf, 356 Pa.Super. 365, 514 A.2d 901 (1986), overruled on other grounds, Van Buskirk v. Van Buskirk, 527 Pa. 218, 590 A.2d 4 (1991); see also Burgettstown-Smith Township Joint Sewage Authority v. Langeloth Townsite Co., 403 Pa.Super. 84, 588 A.2d 43 (1991). Whether the doctrine applies depends on the unique factual circumstances of each case. In determining if the doctrine applies, we focus not on the intention of the parties, but rather on whether the defendant has been unjustly enriched. State Farm Mutual Automobile Insur. Co. v. Jim Bowe & Sons, Inc., 372 Pa.Super. 186, 539 A.2d 391, 393 (1988) (citing Myers-Macomber Engineers v. M.L.W. Constr. Corp. and HNC Mortgage and Realty Investors, 271 Pa.Super. 484, 414 A.2d 357 (1979); Gee v. Eberle, 279 Pa.Super. 101, 420 A.2d 1050 (1980)).

Moreover, the most significant element of the doctrine is whether the enrichment of the defendant is unjust. The doctrine does not apply simply because the defendant may have benefited as a result of the actions of the plaintiff. Meehan v. Cheltenham Township, 410 Pa. 446, 189 A.2d 593 (1963) (where two parties enter into contract which ultimately benefits third party and one contracting party fails to perform, in absence of misleading by third party there is no right to restitution against third party to remedy contracting party’s breach; although third party is enriched, enrichment not deemed unjust); see also D.A. Hill Co. v. Clevetrust Realty, 524 Pa. 425, 573 A.2d 1005 (1990) (same).

Where unjust enrichment is found, the law implies a contract between the parties pursuant to which the plaintiff must be compensated for the benefits unjustly received by the defendant. This contract, referred to as either a quasi-contract or a contract implied in law, requires that the defendant pay the plaintiff the value of the benefits conferred, i.e. that the defendant make restitution to the plaintiff in quantum meruit. See Schott v. Westinghouse Electric Corp., 436 Pa. 279, 290-91, 259 A.2d 443, 449 (1969); DeGasperi v. Valicenti, 198 Pa.Super. 455, 457, 181 A.2d 862, 864 (1962).

In the instant case, the trial court found that Hugo had been unjustly enriched and, therefore, that Styer was entitled to compensation in quantum meruit. In so concluding, the trial court relied exclusively on this court’s opinion in Johnson v. Stein, 254 Pa.Super. 41, 385 A.2d 514 (1978), which the trial court interpreted as specifically approving application of the doctrine of unjust enrichment in a situation analogous to the one presented here. We, on the other hand, find that to the extent that the Johnson court opined on the subject of unjust enrichment, its statements are clearly dicta. Nor do we find the factual situation presented in Johnson to be sufficiently analogous to the facts of this case to warrant reliance on the Johnson court’s analysis.

In Johnson, the appellant attorney initially represented certain plaintiffs in a tort case on a contingent fee basis. Appellee attorney was an associate in appellant’s office who worked on the tort case. Appellant terminated appellee, and the plaintiffs in the tort case then retained appellee to prosecute their case. Appellee settled the case. Appellant filed a Notice of Attorney’s Lien, asserting a charging lien on the proceeds of the settlement, and the proceeds were paid into court. Eventually, the trial court struck the Notice of Attorney’s Lien, finding that appellant was not entitled to a charging lien. Id. at 42, 385 A.2d at 515.

On appeal, this court agreed with the trial court that appellant was not entitled to a charging lien and affirmed. The court then proceeded to discuss whether appellant, having failed to establish entitlement to a charging lien, might have another avenue of recourse against appellee, i.e., an action asserting unjust enrichment and a contract implied-in-law. The court found that appellant might well attempt to assert such a theory against appellee.

As this brief statement of the facts and procedural posture of Johnson reveals, the appellant had never sought recovery on a theory of unjust enrichment at any point in either the trial court or on appeal. The Johnson court’s gratuitous speculation as to whether appellant might be able to pursue such a theory at a later time is pure dicta. We further note that even in its dicta, the Johnson court did not conclude that appellant could recover a portion of the fee on a theory of unjust enrichment, as the court expressly stated that it could not determine on the record before it whether appellant would be entitled to expenses only, or to a fee as well. Id. at 46, 385 A.2d at 517. Moreover, as the foregoing summary also indicates, the facts of Johnson are starkly different from those involved here. Johnson was a dispute between an employer-attorney and his former employee-attorney who, upon termination of his employment, took his former employer’s client. In contrast, the instant case involves a dispute between two unrelated attorneys, with the additional complicating factor of the involvement of attorney Brill.

We have carefully considered the course of events precipitating this fee dispute. We have concluded that while Hugo realized some, albeit unquantifiable, benefit from the work that Styer performed on behalf of the Piccininos, nevertheless, his retention of that benefit under the circumstances of this case was not unjust. We note at the outset that the record is not clear as to the degree to which Hugo benefitted from Styer’s work. Despite this, the trial court concluded that Hugo “would not have been so favorably situated to settle” the Piccininos’ case had it not been for Styer’s early work on the matter. The record does not support the conclusion that without Styer’s efforts the highly favorable resolution of the case would not have been achieved. Styer allowed four years after the commencement of the action to pass while he amassed Mr. Piccinino’s prior medical records and engaged in a fruitless attempt to attribute various of Mr. Piccinino’s medical problems to his fall from the chair so as to increase the potentially recoverable damages. The fact that the case languished with no progress toward settlement at all during these four years was, in fact, the reason the Piccininos dismissed Styer. In contrast, as soon as Hugo took over the case he took a realistic view of its value, convinced the Piccininos that his appraisement was correct and achieved a very favorable settlement. The record does not demonstrate that Hugo’s ultimate success in negotiating this settlement was materially advanced by Styer’s work.

Assuming, arguendo, that Hugo realized some benefit from Styer’s work in collecting Mr. Piccinino’s medical records, we nevertheless find that his retention of this benefit is not unjust. Rather, we find that Styer did not adequately protect whatever right to compensation he might have had vis-a-vis his clients, and that the actions of both the Piccininos and Brill further compromised Styer’s ability to receive compensation.

Styer may have had a legal right to compensation from the Piccininos for the services he had already rendered to them as of when they terminated him. See Powers v. Rich, 184 Pa. 325, 39 A. 62 (1898); Dorsett v. Hughes, 353 Pa.Super. 129, 509 A.2d 369 (1986). He did not choose to enforce this right against the Piccininos. Instead, he entered into an agreement with Brill pursuant to which he would receive a portion of whatever fee Brill realized from the case. Notably, their agreement made no provision for what would happen if Brill did not see the case through to judgment or settlement or, as ultimately happened, waived his right to any, fee in the matter. Further, when Brill did waive his right to a fee and terminated his relationship with the Piccininos, he never informed Styer that he had done so or that he had turned the file over to Hugo. Nor did the Piccininos inform Hugo of the arrangement between their prior attorneys when they initially retained Hugo and contractually agreed to pay him a one-third contingent fee, with no provision for the payment of any portion thereof to Styer. It was not until the settlement of the Piccininos’ case had been completed that both Styer and Brill first contacted Hugo to attempt to have a portion of the fee remitted to Styer.

We find no basis in this scenario for concluding that Hugo has been unjustly enriched. Rather, Styer inadequately protected his right to compensation for the services he had rendered. Moreover, Brill and the Piccininos both compromised Styer’s right by their later actions. This, however, does not lead us to the conclusion that whatever enrichment thereby accrued to Hugo was unjust. When Hugo took over this matter, he did not know of the arrangement between Styer and Brill and the Piccininos. When he shortly thereafter found out about it, all he learned was that Brill had agreed to remit to Styer a portion of whatever he recovered. He did not know and had no obligation to ascertain what arrangements, if any, were made between Brill, Styer and the Piccininos, when Brill ultimately recovered nothing in the case.

In sum, the reason Styer has not been paid is that he first failed to avail himself of the right to compensation from the Piccininos that the law provided him, and then relied on his agreement with Brill, which through no fault of Hugo’s, ultimately yielded Styer nothing. See Meehan, supra (where a party inadequately protects its right to compensation from the direct recipient of its services, it cannot thereafter seek restitution against one indirectly benefited by those services who in no way induced the provision of services).

The judgment of the trial court is reversed, and the court is directed to enter j.n.o.v. in favor of Hugo.


author: HOFFMAN, Judge:

text:
    619 A.2d 352
    COMMONWEALTH of Pennsylvania v. Francisco OCASIO, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1992.
    Filed Jan. 19, 1993.

      Peter C. Bowers, Philadelphia, for appellant.
    Robin Godfrey, Asst. Dist. Atty., Philadelphia, for Com.
    Before BECK, HOFFMAN and BROSKY, JJ.
   HOFFMAN, Judge:

This is an appeal from judgment of sentence for possession of drug paraphernalia and criminal conspiracy. Appellant, Francisco Ocasio, presents the following claims: (1) the evidence was insufficient sustain his convictions; (2) the trial court was without subject matter jurisdiction to try, convict and sentence him to a felony conspiracy charge; and (3) the trial court abused its discretion by relying on improper information in assigning an offense gravity score. For the reasons set forth below, we reverse and vacate judgment of sentence.

On February 2, 1989 the Philadelphia Police Department executed a search warrant for 2128 North Second Street in Philadelphia. During the search, the officers required the five occupants of the house, including Abel Ocasio (hereinafter “co-defendant”), to remain in the living room. While the officers were searching the first floor, Officer Ralph Perez overheard co-defendant state in Spanish, “it’s in the trash.” Officer Perez then directed another officer to search the trash can in the kitchen. The police discovered twelve baggies containing a total of 567 vials of crack cocaine hidden in the trash can. In a third floor bedroom, the officers found a baggie containing a large chunk of crack cocaine laying out in the open and $5,882 in cash. In addition, the officers recovered from the basement a triple beam scale, one baggie containing numerous empty clear plastic vials with gray and black caps, two strainers, and one baggie containing numerous empty clear smaller packets.

The 567 vials found in the kitchen contained approximately 56.7 grams of crack cocaine and the baggie found in the third floor bedroom contained 113.2 grams of crack cocaine. The black plastic grinding apparatus recovered during the search contained residue of cocaine and the glass bottle confiscated during the search contained 5.35 grams of Tetracaine, a substance commonly used to dilute or “cut” cocaine before selling it.

Appellant returned home while the search was in progress and he was subsequently arrested. During a search of appellant, police recovered $422 in cash and a current driver’s license listing his residence as 2128 North Second Street.

On February 2, 1989, appellant was charged with possession of controlled substances with intent to deliver, possession of drug paraphernalia and criminal conspiracy. On March 8, 1991, a jury convicted appellant of possession of drug paraphernalia and criminal conspiracy. Appellant was acquitted of possession of controlled substances with intent to deliver. Post-trial motions were filed and denied. On June 5, 1991, appellant was sentenced to twenty-one-months-to-five-years imprisonment for criminal conspiracy to possess with intent to deliver controlled substances. Appellant received a suspended sentence for possession of drug paraphernalia. This timely appeal followed.

Appellant first contends that the evidence produced at trial was insufficient to establish beyond a reasonable doubt that he was guilty of criminal conspiracy and possession of drug paraphernalia. For the following reasons, we agree.

The standard applied in reviewing a sufficiency claim is well-settled:

We must determine whether, viewing all the evidence at trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, the jury could have found that each element of the offense was proven beyond a reasonable doubt. Both direct and circumstantial evidence can be considered equally when assessing sufficiency of the evidence.

Commonwealth v. French, 396 Pa.Super. 436, 440, 578 A.2d 1292, 1294 (1990), aff'd, 531 Pa. 42, 611 A.2d 175 (1992).

Criminal conspiracy is defined in Pennsylvania’s Crimes Code as follows:

(a) Definition of conspiracy.—A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation of such crime.
(e) Overt act.—No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.

18 Pa.C.S.A. § 903.

In the instant action, the Commonwealth contends that appellant’s constructive possession of the drugs coupled with the fact that the drugs were possessed with the intent to deliver and that at least one of the individuals present at the scene of the crime was involved in the distribution sufficiently establishes the elements of criminal conspiracy. We disagree. While the evidence does support an inference that the drugs were possessed with an intent to deliver and that an individual other than appellant was involved in the drug distribution, there is insufficient evidence to support an inference that appellant was in constructive possession of the drugs.

Where drugs are not found on a defendant’s person, constructive possession can be established by “showing that a defendant had power of control over and intended to exercise such control of such substance.” Commonwealth v. Davis, 331 Pa.Super. 285, 304, 480 A.2d 1035, 1045 (1984). An intent to maintain such conscious dominion may be inferentially proven by the totality of the circumstances. Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (1983); Commonwealth v. Parsons, 391 Pa.Super. 273, 284, 570 A.2d 1328, 1334 (1990).

Appellant was present at the scene of the crime and, as a resident, had access to the drugs in the house. However, “where more than one person has equal access to where drugs are stored, presence alone in conjunction with such access will not prove conscious dominion over the contraband.” Davis at 305, 480 A.2d at 1045.

Since the drugs were accessible to any resident of the house, the Commonwealth must introduce evidence demonstrating either appellant’s participation in the drug related activity or evidence connecting appellant to the specific room or areas where the drugs were kept. See Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983) (cocaine and various items of drug paraphernalia found in room occupied by both husband and wife was sufficient to establish husband’s constructive possession); Commonwealth v. Kitchener, 351 Pa.Super. 613, 506 A.2d 941 (1986) (evidence showing that drugs were found in a dwelling where both individuals were sole adult residents and the drugs were found in the freezer and under a living room chair, areas peculiarly in the control of the individuals, was sufficient to sustain a finding of joint constructive possession); Commonwealth v. Keefer, 338 Pa.Super. 184, 487 A.2d 915 (1985) (evidence directly linking defendant to room where drugs were found was sufficient to show that defendant exercised control over the room and, thus, control over the drugs found in the room); Davis at 306, 480 A.2d at 1046 (“[Ajppellant’s actions in attempting to dispose of the small quantity of heroin, his joint control over the entire row house, and his possession of large sums of money adequately established his control and intention to control at least some of the drugs.... ”).

In the instant action, the Commonwealth has failed to introduce such evidence. The only evidence linking appellant to any drug related activity is the $422 cash found in his pocket at the time of his arrest. However, appellant’s possession of a large sum of money in small denominations, without more, does not prove that appellant was involved in drug sales. Furthermore, there is no evidence linking appellant to any of the specific areas in the house where the drugs or the drug paraphernalia were found.

Of course, it is not required that a defendant be the individual who committed the underlying crime to find him guilty of criminal conspiracy. A showing that a defendant was part of an agreement in furtherance of the criminal activity is sufficient. Such an agreement may be proven circumstantially:

Among the circumstances which are relevant, but not sufficient by themselves, to prove a corrupt confederation are: (1) an association between alleged conspirators; (2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy.

Commonwealth v. Lamb, 309 Pa.Super. 415, 429, 455 A.2d 678, 685 (1983).

After carefully examining all of the circumstances in the instant action, we find that the Commonwealth has established no more than a mere suspicion that appellant agreed to participate or aid in the drug distribution. As a resident of the house, appellant’s presence at the scene of the crime was not out of the ordinary. In fact, he was one of six individuals present during the search. Moreover, there is no evidence that appellant even knew of the criminal activity in the house. See Commonwealth v. Fortune, 456 Pa. 365, 369, 318 A.2d 327, 329 (1974) (a defendant’s residence at the house where contraband is found does not establish that he had knowledge of any criminal activity). Nothing connecting appellant to the drugs or the drug paraphernalia was found anywhere in the house. As stated above, the $422 in small denominations could suggest that appellant was involved in drug sales. However, this inference is not supported by any other evidence. In light of the lack of direct and circumstantial evidence connecting appellant to any drug related activity, the evidence introduced at trial is insufficient to support appellant’s conviction of criminal conspiracy.

Likewise, there is insufficient evidence to show that appellant was in possession of drug paraphernalia. The crime of possession of drug paraphernalia is defined as follows:

The use of, or possession with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of the act.

35 P.S. § 780-113(a)(32).

As a resident of the house, appellant clearly had access to the drug paraphernalia. However, appellant’s access was shared with all other residents. There is no evidence connecting appellant to the drug paraphernalia found in the basement. Moreover, as we have already stated, there is not sufficient evidence to show that appellant was involved in drug related activity. Accordingly, we reverse and vacate judgment of sentence on all counts.

Judgment of sentence reversed and vacated. Jurisdiction is relinquished.

      . 35 P.S. § 780-113(a)(32).

      . 18 Pa.C.S.A. § 903.

      . Officer Patrick Brosnan, a qualified expert in the use, packaging and distribution of drugs, rendered an opinion that the crack cocaine confiscated from 2128 North Second Street had been possessed with an intent to deliver. In light of the large amount of drugs and cash found and Officer Brosnan’s testimony, there was sufficient evidence to establish an intent to distribute. See Commonwealth v. Ramos, 392 Pa.Super. 583, 573 A.2d 1027 (1990), appeal denied, 527 Pa. 602, 589 A.2d 692 (1990).

      . During the search and before appellant returned to the house, co-defendant stated to one of the other five occupants of the house "it’s in the trash.” From this statement, a jury could reasonably infer that an individual other than appellant hid the drugs immediately prior to the police search, demonstrating that at least one other individual was involved in the drug distribution.

      . Arguably, all residents of the house had access to the crack cocaine since the drugs were found in the kitchen, a common area, and in open view in an unlocked third floor bedroom.

      . The Commonwealth makes no assertion nor provides any evidence to show that appellant was the sole resident of the house. Since any resident of the house would have had access to the drugs, more than one person had equal access.

      . The drug paraphernalia was kept in an open box in the basement, a common area accessible to any resident.


author: WIEAND, Judge:

text:
    619 A.2d 356
    In the Interest of Russell GARTHWAITE. Appeal of Enrico INGROSSO.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1992.
    Filed Jan. 20, 1993.

      Louis J. Fanti, West Chester, for appellant.
    Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.
   WIEAND, Judge:

The issue in this appeal is whether the male friend of a child’s natural mother has standing to appeal from an adjudication of dependency and an award of the child’s custody to the natural father. After careful review, we conclude that the boyfriend lacks standing to appeal.

Russell Garthwaite, almost four (4) years of age at the time of the hearing, is the son of Cynthia and Rian Garthwaite. After Cynthia and Rian separated, Russell lived with his mother. Cynthia then began dating Enrico Ingrosso, who thereafter spent much of his time with Cynthia in her home. On January 6, 1991, Children and Youth Services of Chester County (CYS) learned that Russell had been taken to the emergency room of the Chester County Hospital. An examination revealed that Russell had suffered a fractured skull, twelve (12) rib fractures, internal bleeding and a pelvic injury. Also observed were a second degree burn of the right hand and multiple bruises of the torso and extremities. CYS sought and was awarded temporary custody of Russell. After a subsequent hearing, the trial court made a finding of dependency because of the abuse which Russell had sustained and awarded custody of Russell to his father. From this order Ingrosso appealed. Significantly, Cynthia Garthwaite did not join the appeal.

The basis for Ingrosso’s appeal is a finding by the trial court that “Cynthia Garthwaite and Enrico Ingrosso are the perpetrators of the physical abuse.... ” In its subsequent opinion, however, the court conceded that it had been unable to determine whether Ingrosso had personally inflicted physical abuse on Russell but had determined that Ingrosso and Cynthia, to whom Russell’s care had been entrusted, were responsible for the boy’s injuries.

A party seeking judicial resolution of a controversy must, as a prerequisite, establish that he has standing, or a stake, in maintaining the action. See: Nye v. Erie Ins. Exch., 504 Pa. 3, 5, 470 A.2d 98, 100 (1983); William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280 (1975); American Booksellers Ass’n, Inc. v. Rendell, 332 Pa.Super. 537, 553, 481 A.2d 919, 927 (1984). Standing has been explained by the Pennsylvania Supreme Court as follows:

The question of standing is rooted in the notion that for a party to maintain a challenge to an official order or action, he must be aggrieved in that his rights have been invaded or infringed. This principle was thoroughly considered in Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975) where this court confirmed that to have standing, a party must (a) have a substantial interest in the subject-matter of the litigation; (b) the interest must be direct; and (c) the interest must be immediate and not a remote consequence.
A “substantial” interest is an interest in the outcome of the litigation which surpasses the common interest of all citizens in procuring obedience to the law. Wm. Penn Parking Garage, Inc., supra, 464 at 192, 346 A.2d at 282. A “direct” interest requires a showing that the matter complained of caused harm to the party’s interest. Upper Bucks County Vocational-Technical School Education Ass’n v. Upper Bucks County Vocational Technical School Joint Comm., 504 Pa. 418, 422, 474 A.2d 1120, 1122 (1984). An “immediate” interest involves the nature of the causal connection between the action complained of and the injury to the party challenging it, Wm. Penn Parking Garage, Inc., supra, 464 Pa. at 197, 346 A.2d at 283, and is shown where the interest the party seeks to protect is within the zone of interests sought to be protected by the statute or constitutional guarantee in question. Upper Bucks County Vocational-Technical School Education Ass’n, supra, 504 Pa. at 423, 474 A.2d at 1122.

South Whitehall Township Police Serv. v. South Whitehall Township, 521 Pa. 82, 86-87, 555 A.2d 793, 795 (1989), quoting Franklin Township v. Commonwealth, Dep’t of Envtl. Resources, 500 Pa. 1, 4, 452 A.2d 718, 719 (1982).

The Juvenile Act, 42 Pa.C.S. §§ 6301 et seq., focuses on the well-being of children. Dependency proceedings concern themselves with the correction of situations in which children are lacking proper parental care or control. See: 42 Pa.C.S. § 6302. In general, the responsibility for such care is vested in parents, guardians and custodians. When proper care and control is lacking, a child may be removed from a parent, guardian or custodian. This constitutes a serious intrusion into the relationship between the child and the parent, guardian or custodian. See: In re Black, 273 Pa.Super. 536, 544, 417 A.2d 1178, 1182 (1980). Therefore, the parties involved in such adult-child relationship have a right of appeal from a court’s order terminating or intruding upon such relationship. Where a parent, guardian or custodian chooses not to exercise the right of appeal, however, it cannot be exercised for the adult by another. Such other person does not have an interest in the subject matter of the litigation.

In the instant case, Ingrosso has no special status with respect to his girlfriend’s son. He is not a parent, guardian or custodian to Russell, and, therefore, he has no interest in Russell’s custody which entitles him to appeal from the trial court’s award thereof. Any effect which the trial court’s order may have upon Ingrosso is collateral and remote. Because he was not a party to the dependency proceeding and because his interest in the court’s determination thereof is remote and not immediate, Ingrosso can have no standing to appeal from the court’s adjudication of Russell as a dependent child. See: South Whitehall Township Police Serv. v. South Whitehall Township, supra at 86-87, 555 A.2d at 795; Upper Bucks County Vocational-Technical School Educ. Ass’n v. Upper Bucks County Vocational-Technical School Joint Comm., 504 Pa. 418, 423, 474 A.2d 1120, 1122-1123 (1984).

As Ingrosso was not a party to the dependency proceedings and because his interests were not represented therein, the court’s adjudication bears no collateral consequences for him. See: Banker v. Valley Forge Ins. Co., 401 Pa.Super. 367, 376, 585 A.2d 504, 509 (for collateral estoppel to apply, the party against whom the doctrine is asserted, or his privy, must have had a full and fair opportunity to litigate the issue in the prior proceeding), allocatur denied, 529 Pa. 615, 600 A.2d 532 (1991); McCullough v. Xerox Carp., 399 Pa.Super. 135, 143, 581 A.2d 961, 965-966 (1990) (the same), allocatur denied, 527 Pa. 624, 592 A.2d 45 (1991). Moreover, if Ingrosso feels that CYS has wrongly implicated him in the acts of abuse committed against Russell, he may request expungement of such information from state and local records under the Child Protective Services Law. See: 23 Pa.C.S. § 6341. If his request is decided adversely, he has a right of appeal therefrom. However, he does not have standing to appeal from the order of the court adjudicating Russell a dependent child and awarding custody to his father. Ingrosso’s appeal, therefore, will be dismissed.

Appeal dismissed.

      . A report filed by CYS implicating Ingrosso in Russell’s abuse has been given "indicated” status, which means that while CYS has determined that evidence of abuse by Ingrosso exists, no formal adjudication thereof has been made. See: 23 Pa.C.S. § 6303; 55 Pa.Code § 3490.4.

      . The Juvenile Act defines ''custodian” thusly:
      “Custodian.” A person other than a parent or legal guardian, who stands in loco parentis to the child, or a person to whom legal custody of the child has been given by order of a court.
      42 Pa.C.S. § 6302.


text:
    619 A.2d 359
    COMMONWEALTH of Pennsylvania v. James BATTIATO, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1992.
    Filed Jan. 21, 1993.

      Joseph T. Bambrick, West Reading, for appellant.
    Narcy L. Hughes, Asst. Dist. Atty., Reading, for Com., appellee.
    Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.
   WIEAND, Judge:

James A. Battiato was tried by jury and was found guilty of two counts of aggravated assault, and also of recklessly endangering another person and criminal mischief. Post-trial and supplemental post-trial motions were filed and denied following an evidentiary hearing. Battiato was thereafter sentenced on the first count of aggravated assault to a term of imprisonment for not less than eight (8) years nor more than sixteen (16) years. On his conviction for criminal mischief, which was graded as a summary offense, Battiato was sentenced to pay a fíne of two hundred ($200.00) dollars. On direct appeal from the judgment of sentence, Battiato argues that there was insufficient evidence to sustain his convictions and that he was denied a fair trial because of numerous instances of prosecutorial misconduct. Finding no merit in any of these contentions, we affirm the judgment of sentence.

In reviewing a challenge to the sufficiency of the evidence, we must determine “whether, viewing all the evidence admitted at trial, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth as the verdict winner, the jury could have found that each and every element of the charged offenses was proved beyond a reasonable doubt.” Commonwealth v. Sanchez, 416 Pa.Super. 160, 166, 610 A.2d 1020, 1023 (1992). See also: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). “[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.” Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). See also: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943). See also: Commonwealth v. Kravitz, 400 Pa. 198, 215, 161 A.2d 861, 869 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).

So viewed, the evidence at appellant’s trial established the following. On February 23, 1991, at or about 7:30 a.m., Donna Miller was taken by her friend, Vicki Thomas, together with Thomas’s boyfriend, Dane Skinner, to pick up her automobile, which had been involved in an accident earlier that morning. After Miller picked up her own vehicle, she drove along Route 61 and was headed to the home of Richard Gerner, with whom she had begun a relationship. After driving for a while, Miller pulled her vehicle off to the side of the road, and Vicki Thomas and Dane Skinner, who had been following her in Thomas’s vehicle, stopped to the rear of her vehicle. While they were stopped, the appellant, Battiato, appeared in a large maroon automobile, which he pulled off the road and parked in front of Miller’s vehicle. Miller had been living with appellant, but was in the process of breaking up with him. Appellant approached Miller and asked her if she was going to come with him, and if she didn’t want to be with him anymore, to which Miller replied, “No. Just leave me alone.”

After this brief conversation, Miller pulled her vehicle back onto Route 61 and continued her journey, again followed by Thomas and Skinner. Appellant entered his vehicle and followed the Miller and Thomas vehicles. A short time later, appellant passed Miller’s vehicle, pulled in front of her, and slammed his brakes on. Miller slowed her vehicle, moved it into the left lane and passed appellant. When Thomas also attempted to pass, appellant swerved his vehicle toward the Thomas vehicle as it passed. After both Miller and Thomas had passed appellant, they approached and stopped for the traffic signal at the intersection of Routes 61 and 662 in Shoemakersville. Miller stopped in the right lane and Thomas pulled her vehicle alongside Miller’s in the left lane. Appellant then also stopped his vehicle a short distance behind Miller’s. While the traffic light was still red, Dane Skinner began to open the passenger side door of Thomas’s vehicle, intending to get out of the car to confront appellant and ask him why he had been trying to run them off the road. However, as Skinner was opening the passenger side door, appellant accelerated his vehicle and struck both Skinner and the door of Vicki Thomas’s vehicle, a black Chevrolet Beretta. After striking Skinner, appellant backed up his vehicle and parked it in a nearby parking lot. Donna Miller went to Skinner’s aid, while Vicki Thomas went to call for help. As Skinner lay on the road, appellant approached him and yelled “Fuck with me some more.” Appellant then brought his foot back, appearing to be ready to kick the prone Skinner, but when Miller asked appellant what he was doing, he entered his car and drove away.

As a result of being struck by appellant’s vehicle, Dane Skinner suffered a compound fracture of the left tibia, which was broken in four places, along with two torn ligaments and a broken tibia in his right leg. At trial, the defense stipulated that appellant had been the driver of the vehicle which struck Skinner, but contended that it had been an accident. Appellant testified that he had been asked by Donna Miller’s parents to take her car away from her because it had been damaged in an accident.4 * According to appellant, Miller refused to come with him and, after a brief conversation, drove away. While stopped at the traffic light, appellant testified that he had started to back up his vehicle, but that he must have hit the gear shift, and, that, as his car lunged forward, he accidentally hit the accelerator pedal instead of the brake. Appellant said he fled the scene of the accident because he was frightened.

Appellant was charged with two counts of aggravated assault under 18 Pa.C.S. §§ 2702(a)(1) and (a)(4), which provide as follows:

(a) Offense defined.—A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; [and]
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon....

Appellant argues that the evidence at trial failed to show that he had acted with the requisite malice. What occurred, he suggests, was a simple traffic accident. In support of this contention, appellant asserts that there had been no previous contact between him and Vicki Thomas or Dane Skinner and that he had had no reason, therefore, for hitting Skinner or Thomas’s vehicle with his car.

The evidence at trial disclosed that appellant and Donna Miller had been living together at the time of the incident, but that Miller had been planning to leave appellant. Prior to the incident, appellant and Miller had engaged in a brief conversation in which Miller had refused to return home with appellant and had told him to leave her alone. Thereafter, appellant continued to follow the Miller and Thomas vehicles. In one instance, he cut in front of Donna Miller’s car and applied his brakes, forcing her to slow down. When Miller and Vicki Thomas subsequently passed appellant’s vehicle, he swerved his car at the Thomas vehicle. Indeed, it was when Dane Skinner attempted to get out of the Thomas vehicle to confront him that appellant accelerated his vehicle forward and struck both Skinner and the Thomas vehicle. After striking Skinner, appellant approached his injured victim and yelled at him, “Fuck with me some more.” He then fled the scene in his car. From his conduct, both prior to and immediately following the striking of Dane Skinner, a jury could reasonably infer that appellant had acted intentionally when he struck Skinner. At the very least, it could conclude that appellant acted recklessly with extreme indifference to the value of human life. The evidence, therefore, was sufficient to sustain appellant’s convictions for aggravated assault.

Appellant also argues that extending the crime of recklessly endangering another person to mere traffic accidents is to read 18 Pa.C.S. § 2705 in an overly broad manner. This contention is wholly lacking in merit, for, as we have already observed, the evidence was sufficient to permit a jury to find that appellant’s actions toward Dane Skinner had been intentional, rather than the result of an accident. By such conduct, appellant not only placed another person in danger of being killed or seriously injured, but actually caused serious bodily injury to Dane Skinner. The evidence, therefore, was sufficient also to sustain appellant’s conviction for recklessly endangering another person.

The crime of criminal mischief is defined by statute as follows:

(a) Offense defined.—A person is guilty of criminal mischief if he:
(1) damages tangible property of another intentionally, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means listed in section 3302(a) of this title (relating to causing or risking catastrophe);
(2) intentionally or recklessly tampers with tangible property of another so as to endanger person or property; or
(3) intentionally or recklessly causes another to suffer pecuniary loss by deception or threat.
(b) Grading.—Criminal mischief is a felony of the third degree if the actor intentionally causes pecuniary loss in excess of $5,000, or a substantial interruption or impairment of public communication, transportation, supply of water, gas or power, or other public service. It is a misdemeanor of the second degree if the actor intentionally causes pecuniary loss in excess of $1,000, or a misdemeanor of the third degree if he intentionally or recklessly causes pecuniary loss in excess of $500. Otherwise criminal mischief is a summary offense.

18 Pa.C.S. § 3304. Appellant argues that proof of monetary damages is an essential element of the crime. Inasmuch as the Commonwealth failed to present competent evidence to establish the amount of damage to Vicki Thomas’s car, appellant argues, his conviction for criminal mischief cannot stand.

Where criminal mischief is charged as a felony or misdemeanor, the monetary value of the damage caused by the defendant is an essential element of the offense. See: In re Gillen, 236 Pa.Super. 521, 525, 344 A.2d 706, 708 (1975). However, proof of pecuniary loss is not required under 18 Pa.C.S. § 3304, when criminal mischief is charged as a summary offense. Commonwealth v. Kincade, 358 Pa.Super. 591, 594-595, 518 A.2d 297, 299 (1986). Instantly, appellant was originally charged with criminal mischief as a misdemeanor of the second degree, but in response to a defense demurrer, the trial court reduced the grade of the offense to a summary offense “because the Commonwealth ha[d] failed to prove that the damages were in excess of $1,000.” Accordingly, the amount of damage to Vicki Thomas’s vehicle was not an element of the offense of which appellant was found guilty. Therefore, the challenge to the sufficiency of the evidence to sustain appellant’s conviction for criminal mischief must fail.

Appellant’s first averment of prosecutorial' misconduct is that the assistant district attorney, on at least thirty-five occasions during the trial, asked improper questions or attempted to introduce cumulative evidence, which thereby caused defense counsel to object and the trial court to sustain objections. According to appellant, he was thereby denied a fair trial. The trial was unfair, he suggests, even though the trial court excluded any improper evidence, because appellant was forced to make repeated objections. Because of his many objections, he argues, the jury was left with the impression that the defense was trying to hide evidence. There is no merit in this contention.

Not every unwise remark or improper question asked by a district attorney during the course of a trial compels the granting of a new trial. See: Commonwealth v. Faulkner, 528 Pa. 57, 77, 595 A.2d 28, 39 (1991), cert. denied, — U.S. -, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992); Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973). Reversible error occurs only when the conduct of the prosecutor is such that its unavoidable effect is “ ‘to prejudice the [jurors], forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.’ ” Commonwealth v. Strong, 522 Pa. 445, 454, 563 A.2d 479, 483 (1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1536, 108 L.Ed.2d 775 (1990), quoting Commonwealth v. McNeal, 456 Pa. 394, 400, 319 A.2d 669, 673 (1974).

Here, most of the defense objections were to the form of the prosecutor’s questions and not to attempts to introduce improper and unfairly prejudicial evidence. In each instance the trial court sustained an objection by the defense and thereby prevented any possibility of prejudice to the defendant. The fact that the trial court sustained thirty-five defense objections in a two day trial is not per se a basis for awarding a new trial, and appellant has failed to identify anything which prevented the jury from deliberating fairly and reaching a verdict upon proper evidence duly offered and received at trial.

Appellant next asserts that the prosecuting attorney directly violated the trial court’s ruling upon a defense motion in limine to preclude Commonwealth witness James Garcia from identifying appellant at trial as the driver of the vehicle which struck Dane Skinner. At trial, the prosecutor asked the witness to describe the individual whom he had observed. At this point, defense counsel objected and a side bar conference ensued. At the conclusion of the side bar conference, defense counsel withdrew his objection and the trial court instructed the witness to answer the question.

The argument made by appellant that the prosecutor violated the trial court’s ruling on the motion in limine is specious. The prosecutor did not ask the witness to identify appellant as the person whom he had observed, and, in fact, specifically instructed the witness not to identify appellant. The question asked merely called for the witness to describe the individual whom he had observed. To this question, in fact, defense counsel withdrew his objection following the side bar conference. The evidence, in any event, was harmless, for the defense had stipulated that appellant was the driver of the vehicle which struck Dane Skinner.

The final averment of prosecutorial misconduct is that the assistant district attorney failed to disclose to the defense that Commonwealth witness, Donna Miller, had criminal charges pending against her at the time of appellant’s trial, and that shortly after appellant’s conviction Miller was accepted into the ARD program. Because of this omission, appellant contends, he was precluded from demonstrating at trial the possible bias of Miller. This issue was the subject of a post-trial evidentiary hearing at which it was disclosed that Donna Miller had been arrested on May 19, 1991 for driving while under the influence of alcohol, possession of marijuana and disorderly conduct. After testifying at appellant’s trial on July 2, 1991, Miller was placed in the Accelerated Rehabilitative Disposition (ARD) program on August 27, 1991. The assistant district attorney who prosecuted appellant testified at the post-trial hearing that he had had no knowledge at the time of appellant’s trial that Miller had been arrested and that charges were pending against her. Donna Miller testified also that she had received no promises from the District Attorney’s Office in return for testifying at appellant’s trial, and, in fact, had had no discussions at that time with anyone from the District Attorney’s Office regarding the charges which had been brought against her.

In Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), the Pennsylvania Supreme Court declared that:

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

Id. at 224-225, 512 A.2d at 631-632. Therefore, the Superior Court has recently observed:

As a general rule, defense counsel must be permitted to cross-examine a Commonwealth witness on possible favorable treatment or expectations of such favorable treatment in exchange for testimony for the prosecution. Failure to allow cross-examination to reveal possible bias of this nature is error and will require a new trial unless the error can be shown to have had no impact on the outcome of the case. See Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986); Commonwealth v. Jennings, 405 Pa.Super. 590, 592 A.2d 1370 (1991); Commonwealth v. Blassingale, 391 Pa.Super. 395, 571 A.2d 426 (1990). The principle upon which this rule is premised is that the jury should have the opportunity to consider information concerning possible ulterior motives on the part of the witness in order accurately to assess the witness’ credibility.

Commonwealth v. Culmer, 413 Pa.Super. 203, 212, 604 A.2d 1090, 1094-1095 (1992). The rule pertains to relevancy and, therefore, the admissibility of evidence.

However, it is also the law in this Commonwealth that “the prosecution does not violate discovery rules when it fails to provide the defense with evidence that it does not possess and of which it is unaware during pre-trial discovery, even if the evidence is in police custody.” Commonwealth v. Bonacurso, 500 Pa. 247, 251 n. 3, 455 A.2d 1175, 1177 n. 3 (1983), cert. denied, 462 U.S. 1120, 103 S.Ct. 3090, 77 L.Ed.2d 1350 (1983) . See also: Commonwealth v. Rakes, 398 Pa.Super. 440, 444, 581 A.2d 212, 214 (1990); Commonwealth v. Woodell, 344 Pa.Super. 487, 491, 496 A.2d 1210, 1212 (1985); Commonwealth v. Gelormo, 327 Pa.Super. 219, 231, 475 A.2d 765, 771 (1984) . Although the prosecution has a duty to disclose exculpatory evidence to the defense pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Commonwealth does not violate that duty “by failing to disclose evidence that it does not have and of which it is not aware.” Commonwealth v. Colson, 507 Pa. 440, 461-462, 490 A.2d 811, 822 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986).

In the instant case, had the prosecuting attorney been aware of the charges pending against Donna Miller, he would have had a clear duty to disclose such information to the defense. However, testimony at the post-trial evidentiary hearing, which was found credible by the trial court, disclosed that the prosecuting attorney had been unaware of the charges pending against Miller, and that Miller had not discussed the charges against her with any representative of the District Attorney’s Office prior to the time of appellant’s trial. The preliminary' hearing had been held only ten days prior to appellant’s trial, and the evidence was that no one from the District Attorney’s Office had been present. Thus, there is no evidence that anyone in the District Attorney’s Office was aware at the time of appellant’s trial that criminal charges had been brought against Miller. Under these circumstances, we can find no error in the trial court’s determination that the prosecuting attorney was not guilty of prosecutorial misconduct.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. §§ 2702(a)(1) and (a)(4).

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 3304.

      . The convictions on the second count of aggravated assault and for recklessly endangering another person were deemed to merge into the first count of aggravated assault for purposes of sentencing.

      . As a result of his conviction for the instant offenses, Battiato was found to have violated the conditions of a previous probationary sentence, and, upon revocation of probation, received an additional sentence of imprisonment. In a separate appeal filed by Battiato, this Court affirmed the order revoking his probation and the judgment of sentenced imposed thereon. See: Memorandum Decision in Commonwealth v. Battiato, (J. A42030/92; No. 715 Philadelphia, 1992; filed December 4, 1992).

      . In his appellate brief, appellant states that Donna Miller's mother testified at trial that she had asked appellant to pick up her daughter's car. However, our review of the record does not disclose that Ms. Miller’s mother testified at appellant's trial.

      . 18 Pa.C.S. § 2705 provides:
      § 2705. Recklessly endangering another person
      A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.