author: HUDOCK, Judge: WIEAND, Judge,

text:
    612 A.2d 458
    COMMONWEALTH of Pennsylvania, Appellee, v. Geneva SPELLS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1991.
    Filed July 1, 1992.

      Bradley S. Bridge, Philadelphia, for appellant.
    Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com.
    Before WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Spells after she was found guilty, following a non-jury trial with stipulated facts, of aggravated assault, simple assault, possession of an instrument of crime, and reckless endangerment of another person. Timely-filed post-verdict motions were denied by the trial court and Spells was sentenced to the mandatory minimum sentence of five years pursuant to 42 Pa.C.S. section 9712 (Purdon 1982 & Supp. 1991) (Sentences for offenses committed with firearms). We affirm.

The sole issue raised by Spells on appeal is as follows:

Is not a mandatory five year to ten year sentence of incarceration for aggravated assault unlawful, as it is unconstitutionally disproportionate and irrational when aggravated assault is a lesser included offense of attempt[ed] murder of the first degree, a crime for which there is no mandatory sentence?

Appellant’s Brief at p. 2.

The facts, as stipulated to by the parties, were summarized by the trial court as follows:

On September 18,1987, Geneva Spells purchased a gun in Dallas, Texas where she lived and flew to Philadelphia to shoot her estranged husband. (N.T., Preliminary Hearing, 10/28/87, pg. 14). Finding her husband at work she walked up to him and from a distance of one foot, pulled the trigger of the loaded gun pointed directly at his head. (N.T., Preliminary Hearing, pg. 6). The complainant avoided death because the gun had a very tight trigger which the defendant could not operate. (N.T., 11/6/89, p. 24-25; 5/24/90, pg. 3) [.] When the gun did not go off she repeatedly pulled the trigger to discharge the gun. (N.T., pg. 6, 15). Security guards took the weapon from the defendant and arrested her. That same day the defendant described the incident as follows: “I pointed it at him and pulled the trigger as hard as I could, but it did not go off. I kept pulling the trigger, and then he took it from me. I did this because of past problems over the past 21 years. The way I feel right now, I would do it again, and the next time I will take the time to do it more properly.” (N.T., 10/28/87, pg. 15).

Trial Court Opinion at pp. 1-2.

While Spells’ own admission indicates that she intended to kill her estranged husband by pointing a gun at his head and pulling the trigger, the Commonwealth did not charge Spells with criminal attempt murder. In her post-verdict motions, Spells argued to the trial court that it was error to consider the aggravated assault conviction as a first degree felony, because it is a lesser included offense of attempted murder, a second degree felony. Spells claimed it would be irrational, fundamentally unfair and arbitrary to grade a greater offense less severely than a lesser included offense; moreover, such a grading would violate several constitutional protections under the state and federal constitutions. The trial court agreed, ruling that any sentence in excess of ten years incarceration — the maximum sentence that may be imposed for the second degree felony of attempted murder — violated both the Pennsylvania and United States Constitutions. The trial court also found, however, no constitutional impediment to the application of the mandatory sentencing provisions of 42 Pa.C.S. section 9712. Spells again raised the latter issue in a timely-filed motion to modify sentence which was denied by the trial court. Hence, the issue is now before this Court on appeal.

Section 9712 provides, in pertinent part:

§ 9712. Sentences for offenses committed with firearms
(a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa. C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

42 Pa.C.S. § 9712(a) (emphasis added). A reading of the above section makes readily apparent that attempted murder is not included in the “attempt” crimes of section 9712. Just as Spells successfully argued to the trial court that the maximum sentence for aggravated assault must be limited by the maximum sentence of attempted murder (an allegedly greater offense), she now argues it is constitutionally impermissible to impose a mandatory minimum sentence upon her for aggravated assault when attempted murder of the first degree (an allegedly greater offense) is not included in the list of crimes under section 9712, and is not, therefore, susceptible to receiving a mandatory minimum sentence. Spells concludes it is a violation of both her state and federal constitutional rights to sentence her to a mandatory minimum because, if convicted of a greater offense, she could receive any sentence as a minimum, including probation. For the reasons that follow, we are unpersuaded by Spells’ argument and affirm her judgment of sentence.

We note again that Spells was only charged and convicted of aggravated assault. The essence of Spells’ argument is that aggravated assault is a lesser included offense of attempted murder, a crime with which Spells was not charged. We need not address, therefore, this part of her argument. Assuming arguendo that aggravated assault is a lesser included offense of attempted murder, when only aggravated assault is charged it is considered in and of itself, because no offense within which it could be included or into which it may merge exists. See Sutton v. Maryland, 886 F.2d 708 (4th Cir.1989), cert. denied, 494 U.S. 1036, 110 S.Ct. 1493, 108 L.Ed.2d 628 (1990) (when only common law assault is charged, it stands alone and is not a lesser included offense because there is no other offense into which it may merge). Thus, we forgo a lesser included offense analysis. The issue becomes then whether the sentence she received for aggravated assault violates one or more of her state and federal constitutional rights. We shall discuss each alleged violation separately.

Spells first characterizes as cruel and unusual punishment her sentence of a mandatory minimum for the aggravated assault charge when the “more serious” crime of attempted murder has no minimum, so, theoretically, a defendant convicted of that charge could receive probation. We initially note that, contrary to Spells’ contention, the guarantee against cruel punishment contained in the Pennsylvania Constitution, Article 1, Section 13, provides no broader protections against cruel and unusual punishment than those extended under the Eighth Amendment to the United States Constitution. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied sub nom. Zettlemoyer v. Pennsylvania, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh’g. denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452; Commonwealth v. Strunk, 400 Pa.Super. 25, 582 A.2d 1326 (1990), alloc. denied, 528 Pa. 630, 598 A.2d 283 (1991).

We also note that Spells’ argument does not properly present a constitutional challenge on the basis of cruel and unusual punishment. Spells relies on the United States Supreme Court’s decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), for the proposition that all sentences are to be proportionate to the crime of which a defendant is convicted. This proposition does not reflect the holding of Solem and misrepresents the current state of proportionality jurisprudence as contained within the Eighth Amendment to the Constitution. In Solem, a sharply divided court affirmed the decision of the circuit court. The circuit court had found that a life sentence without possibility of parole imposed under a recidivist statute upon a man, following a seventh felony conviction, was violative of the federal guarantees against cruel and unusual punishment. Justice Powell, in an opinion joined by four other justices, indicated three objective criteria which could be examined to determine if a sentence is proportional to the crime committed:

In sum, a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

Solem, 463 U.S. at 292, 103 S.Ct. at 3010.

Spells correctly identifies these three objective criteria. However, while she argues that the first two criteria are the most critical, Spells completely fails to apply the first criterion to the facts of her case, apart from one sentence in which she raises her “merger” claim. This omission is understandable in light of the fact that the mandatory minimum provision of section 9712 has been repeatedly attacked as violating different constitutional rights and yet has been repeatedly upheld. See, e.g., Commonwealth v. Ehrsam, 355 Pa.Super. 40, 512 A.2d 1199 (1986), alloc. denied, 515 Pa. 573, 527 A.2d 535 (1987), cert. denied, 493 U.S. 932, 110 S.Ct. 321, 107 L.Ed.2d 311 (1989) (section 9712 does not violate the prohibition against cruel and unusual punishment); Commonwealth v. Irving, 347 Pa.Super. 349, 500 A.2d 868 (1985) (Mandatory Minimum Sentencing Act is not violative of equal protection); Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), aff'd. sub nom. Wright v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (section 9712 does not unconstitutionally deny substantive due process by requiring proof of visible possession of a weapon to be made by a preponderance of the evidence).

Instead of discussing all three of the objective criteria of Solem, Spells relies on the second one as if it were the exclusive test for determining cruel and usual punishment. Such an argument is clearly incorrect. In the recently decided Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), the United States Supreme Court again considered the propriety of the proportionality test of Solem. In an opinion concurring in part and concurring in the judgment, Justice Kennedy, joined by Justices O’Connor and Souter, attempts to reconcile the Court’s conflicting opinions on the subject. Justice Kennedy recognized that the Eighth Amendment's cruel and unusual punishment clause encompasses a narrow proportionality principle that applies to non-capital cases. In reviewing earlier cases which discuss the proportionality element of cruel and unusual punishment, Justice Kennedy discovered several common principles:

The first of these principles is that the fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is “properly within the province of the legislatures, not courts.” [Rummel v. Estelle, 445 U.S. 263, 275-76, 100 S.Ct. 1133, 1140, 63 L.Ed.2d 382, (1980)].... The efficacy of any sentencing system cannot be assessed absent agreement on the purposes and objectives of the penal system. And the responsibility for making these fundamental choices and implementing them lies with the legislature____ Thus, reviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes. Solem, supra, [463 U.S.] at 290 [103 S.Ct. at 3009]....
The second principle is that the Eighth Amendment does not mandate adoption of any one penological theory....
Third, marked divergences both in underlying theories of sentencing and in the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure____
The fourth principle at work in our cases is that proportionality review by federal courts should be informed by “ ‘objective factors to the maximum possible extent.’ ” Rummel, supra, [445 U.S.] at 274-275, [100 S.Ct. at 1139], quoting Coker [v. Georgia ] 433 U.S., [584] at 592 [97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977)] (plurality opinion). See also Solem, supra, [463 U.S.] at 290 [103 S.Ct. at 3009]. The most prominent objective factor is the type of punishment imposed____ By contrast, our decisions recognize that we lack clear objective standards to distinguish between sentences for different terms of years. Rummel, supra, [445 U.S.] at 275 [100 S.Ct. at 1140].... Although “no penalty [is per se constitutional,” Solem [463 U.S.] at 290, 103 S.Ct. at 3009], the relative lack of objective standards concerning terms of imprisonment has meant that “ ‘outside the context of capital punishment, successful challenges to the proportionality of particular sentences [are] exceedingly rare.’ ” Id., at 289-290, [103 S.Ct. at 3008-3009], quoting Rummel, supra, [445 U.S.] at 272 [100 S.Ct. at 1138].
All of these principles — the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors — inform the final one: the Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are “grossly disproportionate” to the crime. Solem, supra, [463 U.S.] at 288, 303 [103 S.Ct. at 3008-3016].

Harmelin, 111 S.Ct. at 2703-2704.

Interpreting the three objective factors established by Justice Powell in Solem, Justice Kennedy found that Solem did not establish a rigid three-part test. While recognizing Solem’s holding that, in determining unconstitutional dis-proportionality, no one factor will be dispositive in a given case, Solem, 463 U.S. at 291, n. 17, 103 S.Ct. at 3010, n. 17, Justice Kennedy opined that one factor may nevertheless determine the constitutionality of a particular sentence:

Solem is best understood as holding that comparative analysis within and between jurisdictions is not always relevant to proportionality review. The Court stated that “it may be helpful to compare sentences imposed on other criminals in the same jurisdiction,” and that “courts find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions.” Id., at 291-92 [103 S.Ct. at 3010-3011]____ It did not mandate such inquiries.
A better reading of our cases leads to the conclusion that intra- and inter-jurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality----
The proper rule for comparative analysis of sentences, then, is to validate an initial judgment that a sentence is grossly disproportionate to a crime.

Harmelin, 111 S.Ct. at 2706-2707. Justice Kennedy then concluded that, due to the serious nature of Harmelin’s crime, i.e., possession of more than 650 grams of cocaine, no such comparative analysis was needed.

The seriousness of the crime with which Spells was convicted cannot be questioned. As stated above, a mandatory five year minimum sentence for offenses committed with firearms has repeatedly withstood constitutional challenge. Under the Harmelin standard, a comparative analysis is not needed. Therefore, the fact that the “more serious” crime of attempted murder does not likewise carry a mandatory minimum becomes irrelevant. Accordingly, under the current status of the proportionality principle in regard to the constitutional protection against cruel and unusual punishment — a protection coextensive with protections provided by our state constitution — Spells mandatory sentence of five years does not constitute a cruel and unusual punishment under either constitution. Her claim to the contrary is, therefore, without merit.

Spells also claims her sentence violates the due process and equal protection rights afforded the citizenry of Pennsylvania by both the state constitution and its federal counterpart. We will briefly discuss and dispose of each claim separately.

Once again, we note that section 9712 has withstood constitutional challenge on equal protection grounds. Commonwealth v. Irving, supra. Insofar as Spells alleges an equal protection violation because the “more serious” crime of attempted murder is not included within the “attempt” variety of crimes listed in section 9712 and, therefore, has no mandatory minimum, we are not persuaded. The fact that the legislature may create different penalties for similar kinds of criminal conduct, leaving application of the penalties to the prosecutor’s discretion, creates no classification at all, and does not, therefore, raise an equal protection issue. Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d 1358 (1986). Moreover, the fact that an attempted murder committed with a firearm is not included within section 9712, while seemingly illogical, is of no consequence. As this Court has stated, “This argument fails because the equal protection clause does not force the legislature to choose between attacking all aspects of a problem or not at all.” Commonwealth v. Hoover, 343 Pa.Super. 372, 376, 494 A.2d 1131, 1134 (1985) (citing Dan dridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)). Spells’ equal protection challenge is without merit.

Lastly, Spells challenges her sentence on both state and federal due process grounds. According to this argument, delegating authority and power to the district attorney to subject a defendant to a mandatory minimum by charging her with aggravated assault, when the “greater” crime of attempted murder carries no such mandatory minimum, is a deprivation of the due process rights afforded Spells by both the state and federal constitutions. In essence, Spells claims that “[the Commonwealth’s] constitutional obligation to prove the commission of offenses beyond a reasonable doubt is fatally eviscerated if the Commonwealth can chose to prove less and be rewarded by obtaining more — here a mandatory sentence.” Spells’ Brief at p. 22. We are not persuaded.

The charging function is totally discretionary with the district attorney, both initially and as to which charges to pursue. U.S. v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980). The fact that section 9712 vests the prosecutor with the discretion to determine when the mandatory sentencing provisions will apply does not violate the doctrine of due process of law. Commonwealth v. Michael, 352 Pa.Super. 345, 507 A.2d 1263 (1986). Spells’ final constitutional challenge is likewise meritless.

Judgment of sentence affirmed.

WIEAND, J., files a concurring opinion in which BECK, J., joins.

WIEAND, Judge,

concurring.

I concur in the decision to affirm the judgment of sentence. I am unable to conclude that appellant’s sentence in this case was so disproportionate to her crime that it constituted cruel and unusual punishment. Nevertheless, I feel constrained to observe that it strains both logic and reason to impose a more serious penalty for aggravated assault than for attempted murder. This is what motivated the Commonwealth to charge appellant with aggravated assault rather than attempted murder, despite the fact that appellant’s intent to kill her estranged husband could not have been more clearly demonstrated. In my judgment, aggravated assault is a lesser included offense of attempted murder, see: Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992) (en banc) (Wieand, J., Dissenting); and, therefore, it should not carry a more severe penalty than attempted murder.

I am also unable to discern the legislature’s logic in imposing a mandatory minimum sentence for visibly possessing a firearm during the commission of an aggravated assault, while not imposing a mandatory minimum sentence for the visible possession of a firearm during an attempted murder.

Perhaps it would be advisable for the legislature to reevaluate the grading scheme for the offenses of aggravated assault and attempted murder, as well as the exclusion of attempted murder from the purview of the mandatory minimum sentencing provisions.

BECK, J., joins in this concurring opinion.

      . 18 Pa.C.S. § 2702 (Purdon 1983 & Supp.1991).

      . 18 Pa.C.S. § 2701 (Purdon 1983).

      . 18 Pa.C.S. § 907 (Purdon 1983).

      . 18 Pa.C.S. § 2705 (Purdon 1983).

      . A specific intent to kill is necessary to support a conviction for attempted murder. An attempt to commit murder can only constitute an attempt to commit murder of the first degree, because both second and third degree murder are unintended results of a specific intent to commit a felony or serious bodily harm, not to kill. See, generally, Commonwealth v. Griffin, 310 Pa.Super. 39, 50, 456 A.2d 171, 177 (1983) (an attempt to commit second or third degree murder would seem to require proof that a defendant intended to perpetrate an unintended killing — which is logically impossible).

      . The propriety of the trial court’s holding that it could not lawfully impose a sentence of more than ten'years on the aggravated assault conviction is not properly before us. We do not, therefore, address this issue.

      . Spells relies on the Pennsylvania Supreme Court’s recent decision in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), for the proposition that the Pennsylvania Constitution conveys protections at least as broad, if not broader, than those protected under the United States Constitution. This is an overly broad reading of Edmunds. Edmunds discussed the protections afforded citizens of this Commonwealth from unreasonable search and seizures independent of any federal guarantees. The Supreme Court did state that a Pennsylvania defendant asserting rights under the state constitution broader than those applicable under its federal counterpart must demonstrate how the text and history of the Pennsylvania provision supports this assertion. Spells has not provided any such analysis in the present case.
      Finally, Spells’ argument fairs no better under a separate analysis of the Pennsylvania Constitution. Employing such an analysis, Spells would need to prove that her sentence “shock[s] the moral conscience of the community,” Commonwealth v. Sourbeer, 492 Pa. 17, 33, 422 A.2d 116, 123 (1980), and that the "most accurate indicators of ‘societal standards of justice’ are the enactments of the duly elected representatives in the legislature____” Commonwealth v. Hill, 379 Pa.Super. 34, 40, 549 A.2d 583, 586 (1988), alloc. denied, 521 Pa. 618, 557 A.2d 721 (1989) (citation omitted). Because Spells has not argued, apart from a "merger” claim, that the harshness of the penalty is disproportionate to the seriousness of the crime with which she was charged, we find it unnecessary to engage in a separate state constitutional analysis.

      . In a lead opinion in which only Chief Justice Rehnquist joined, Justice Scalia held that the Eighth Amendment to the United States Constitution did not contain a proportionality principle and, alternatively, that any such principle was applicable to the court’s death penalty jurisprudence and not to criminal sentences in general. Justice Scalia would overrule Solem.

      Although Justices Kennedy, O’Connor and Souter did not agree on overruling Solem, in all other respects the Kennedy opinion functions as a majority opinion, and constitutes a "joint opinion,” similar to those in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). See Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987) (treats Gregg, Proffitt, and Jurek, which were joint opinions, as precedent).

      . Justice Kennedy’s comments were in response to the contention that the federal proportionality decisions require a comparative analysis among the sentence at issue, sentences imposed for other crimes in Michigan and sentences imposed for the same crime in other jurisdictions.

      . Justice Kennedy finds even less discretion in reviewing a sentence for proportionality when a mandatory sentence is involved: To “set aside petitioner’s mandatory sentence would require rejection not of the judgment of a single jurist, as in Solem, but rather the collective wisdom of the Michigan Legislature and, as a consequence, the Michigan citizenry.” Harmelin, 111 S.Ct. at 2708.

      . In a dissent joined by Justices Blackman and Stevens in Harmelin, Justice White states that the proportionality analysis proposed by Justice Kennedy eviscerates Solem by reducing its three objective factors to one factor which is quite subjective. Justice White reiterated the statements in Solem that "no one factor will be dispositive of a given case," and “no single criterion can identify when a sentence is so grossly disproportionate that it violates the Eighth Amendment," “but a combination of objective factors can make such an analysis possible." Solem, 463 U.S. at 291, n. 17, 103 S.Ct. at 3010, n. 17.
      Spells would fair no better under this analysis. As stated above, Spells has presented no argument to this Court, apart from the lesser included analysis which is not presently before us, that would indicate that her sentence is too harsh given the gravity of the offense she committed.

        . One can reasonably conclude that the completed crimes of first and second degree murder were not included in the list of crimes to which section 9712(a) applies because a mandatory term of life imprisonment represents the “minimum” mandated by statute. Because these completed crimes were not listed necessarily means that an attempted murder is likewise excluded. While we conclude that such a result follows logically, we cannot find such a disparagement of treatment to take on constitutional significance. The facts of the present case include the visible use of a firearm; clearly, but for this legislative omission, section 9712 would be applicable under the facts of this case. Surely, an argument cannot be made that an attempted murder by use of a firearm should be treated differently than other crimes committed with firearms.


source: Caselaw Access Project

author: ROWLEY, President Judge: CIRILLO, Judge,

license: Public Domain

text:
    612 A.2d 465
    In re ADOPTION OF STEVEN S., a minor. Appeal of R.S. In re ADOPTION OF STEVEN S., a minor. Appeal of J.M.S.
    Superior Court of Pennsylvania.
    Argued March 17, 1992.
    Filed July 7, 1992.

      Michael Hahalyak, Pittsburgh, for Robert Schoenfeld.
    Raymond N. Sanchas, Pittsburgh, for Janice M. Schoenfeld.
    Judith Patterson, Pittsburgh, for appellee.

      Thomas O. Schmitt, Pittsburgh, for Allegheny County Children & Youth Services, participating party.
    Before ROWLEY, President Judge, and CIRILLO and BROSKY, JJ.
   ROWLEY, President Judge:

In these related appeals, R.S. (“Father”) and J.M.S. (“Mother”) appeal from the final judgment terminating their parental rights with regard to their son, Steven. In his appeal, docketed in this Court at No. 1317 Pittsburgh 1991, Father raises the following issues: (1) whether Children and Youth Services (C & YS) failed as a matter of law to establish the necessary elements to entitle it to terminate the parental rights of the father in that the alleged conditions which led to the removal or placement of the child do not exist; (2) whether C & YS illegally, arbitrarily, and unconstitutionally restricted his visitation rights, delayed the return of the child to his natural family, and failed to promote reunification of the family; (3) whether the trial court erred in applying the bonding principle and the best interests of the child approach so as to deny Father his parental rights; and (4) whether the trial court misinterpreted the recommendation of the expert psychologist in finding that the child should not be returned unless he himself favors the return. In her appeal, docketed at No. 1335 Pittsburgh 1991, Mother raises the following issues: (1) whether the trial court erred in determining that grounds for termination of her parental rights were supported by clear and convincing evidence, and (2) whether the trial court erred in determining that termination of her parental rights will best serve the child’s needs and welfare. After thoroughly reviewing the record and considering the arguments of the parties, we affirm.

Mother and Father were married in 1981. Father had a son and a daughter from a previous marriage. Mother and Father have four other children, including Steven. Both Steven and the son from Father’s previous marriage reside in foster homes. The other four children reside with Mother and Father.

Steven was born on May 17, 1983. On June 21, 1983, Steven’s parents took him to Suburban General Hospital where he was treated for a broken leg. Because the hospital personnel found the nature of the fracture to be inconsistent with the parents’ explanation of the cause, C & YS was notified concerning possible abuse. A Juvenile Court hearing was conducted, after which Steven was returned to his parents.

Approximately one month later, a visiting nurse found Steven to be in an extremely emaciated condition. A C & YS caseworker obtained an ex parte court order permitting her to take Steven to the hospital. The emergency room physician diagnosed Steven as suffering from malnutrition. He remained in the hospital for five days and was then placed in a temporary foster home. In September, 1983, he was found to be dependent and placed in a regular foster home, where he now resides. His foster parents wish to adopt him.

In August, 1986, C & YS filed a petition for the involuntary termination of Mother’s and Father’s parental rights. Hearings on the petition were conducted, and on May 3, 1991, the trial court entered an order terminating Mother’s and Father’s parental rights. Exceptions were denied on June 29,1991, and the order was made final. These appeals were then filed.

Termination of appellants’ parental rights was based on 23 Pa.C.S. § 2511(a)(5), which provides the following: The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

♦ * * * * *
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

23 Pa.C.S. § 2511(a)(5). A party seeking involuntary termination of parental rights must prove the above five elements by clear and convincing evidence. In re Adoption of J.J., 511 Pa. 590, 594, 515 A.2d 883, 885-86 (1986). In reviewing the trial court’s decision to grant the petition to terminate,

the scope of appellate review is limited to the determination of whether the decree of termination is supported by competent evidence. If the decree is adequately supported by competent evidence, and the chancellor’s findings are not predicated upon capricious disbelief of competent and credible evidence, the adjudication of the Orphans’ Court terminating parental rights will not be disturbed on appeal. [ ...] [UJnless the Orphans’ Court abused its discretion or committed an error of law, its findings are entitled to the same weight given a jury verdict. The trial court, as trier of fact, is the sole judge of credibility of witnesses. Conflicts in testimony are to be resolved by the trier of fact and we may not disturb a decree of Orphans’ Court based upon findings supported by the record unless Orphans’ Court applies an incorrect legal standard.

In re Adoption of B.J.R., 397 Pa.Super. 11, 15, 579 A.2d 906, 908 (1990) (quoting Adoption of J.J., supra 511 Pa. at 593-94, 515 A.2d at 885-86 (citations omitted)).

With these standards in mind, we have thoroughly reviewed the record and conclude that the trial court did not err in granting the petition to terminate. On the basis of the testimony and evidence presented at the hearing, see Trial Court Opinion at 3-23, the trial court made the following factual findings and conclusions from those findings:

The two incidents that led to Steven’s removal established that his home environment seriously jeopardized Steven’s health and safety. In September, 1983, Steven was found to be a dependent child requiring placement outside the home because of inadequate explanations for bruises on his face and a leg fracture and because of a dramatic weight loss and malnourishment for which there was no reasonable explanation other than neglect.
C & YS’s reunification requirements were reasonable. The incidents that led to Steven’s removal strongly suggested that Steven’s birth had disrupted the functioning of this family. Consequently, it was reasonable for C & YS to require the parents to complete a MHMR assessment and to complete any counseling which the assessment recommended as a condition for Steven’s return. To date, the family has not been willing to permit such an assessment.
It was also reasonable for C & YS to require the parents to participate in a program that addressed parenting skills and child developmental issues and that evaluated the parents’ abilities to relate to and to care for Steven. It was approximately two years before the parents were willing to participate in such a program. At that time, the staff of this program concluded that they were not capable of responding to Steven’s needs.
With the passage of time during which Steven remained outside the home, the need for successful parental participation in a program designed to assist the parents in responding to Steven’s needs increased. Because Steven is being raised in a foster home, he has come to view the foster parents as his parents and his natural parents have become insignificant. Consequently, it is difficult for his parents to re-establish a relationship with Steven without the assistance of professionals who are capable of assisting the parents in understanding the child’s views and needs and the manner in which they must respond. This is an area in which the parents have made no progress because of their inability to work with professionals and to understand Steven’s situation.
This case is unusual in that there are presently four other children in the [S.] home. The children appear to be doing well in a family that appears to be providing appropriate care. This suggests that it may have been possible for the parents to have met the reunification requirements if there had been more cooperation between the parents and C & YS. However, a constant antagonistic relationship between the father and C & YS resulted in the issues leading to Steven’s removal being no more resolved today than they were at the time of the removal. From the outset, the father’s response to C & YS was one of complete mistrust, an unwillingness to believe that there was any justification for Steven’s removal, and an insistence that matters be done his way because C & YS’s methods were based on its bureaucratic needs rather than the needs of the parents and their children.[] C & YS’s caseworkers viewed the father’s responses as a validation of their beliefs that his personality traits prevented him from being a competent parent for Steven. They responded to the father’s attacks on C & YS by assuming a defensive position. What evolved was that both the father and the C & YS staff view themselves as victims of the other’s demands.
Although there have been regular reviews in the Juvenile Court, the Juvenile Court’s actual participation in this ongoing and very lengthy conflict has been minimal. For the most part, C & YS has been prepared to accept the status quo that involved hourly visits every other week. While the father was dissatisfied with the status quo, he involved the court primarily in fending off actual and anticipated efforts by C & YS to take away what he had. He never sought to present evidence that might convince this court that Steven should be returned (as opposed to objecting to the initial decision concerning the child’s removal) on the basis of changed circumstances. He also never requested more specific guidance from the court with respect to reunification requirements.
What was unusual in these termination proceedings is the amount of testimony that each party offered to justify the lack of progress. At this time, however, the issue is not who should have done more to resolve the ongoing conflict. Services were made available to the family. They choose [sic] not to avail themselves of the services. As a result, the family is not in a position to care for Steven at this time. They have not successfully completed any programs that would assist them in understanding the needs of a seven year old child who has lived his entire life with another family. They have not shown any ability to follow the suggestions of any professionals with respect to their responses to Steven.

Trial Court Opinion at 23-27. After reviewing the record, we conclude that the trial court’s factual findings and its resolutions of factual disputes, upon which the above conclusions are based, are amply supported by the record. With this in mind, we will address the parents’ arguments.

I. FATHER’S APPEAL

In his first issue, Father contends that C & YS failed to satisfy the necessary statutory elements by clear and convincing evidence. Specifically, he argues that C & YS “produced no testimony whatsoever to establish that the alleged propensities on the part of the father to abuse the child (all of which he always denied) ‘continued to exist’.” Father’s Brief at 33.

It is true, as Father contends, that C & YS caseworkers stated that he was not a dangerous person, that the trial court remarked that he was fit to be around children, and that psychological tests did not reveal a propensity for child abuse. See id. at 33. Nonetheless, sufficient evidence was presented which clearly and convincingly revealed that Steven did not receive adequate care during the first two months of his life. Although the parents have repeatedly and continually denied abusing or neglecting Steven, this factual dispute has been decided against them. After viewing the evidence of record, most notably the evidence reflecting Steven’s physical condition when he was removed, we cannot say that the determinations concerning abuse and neglect lack support. Moreover, their failure to remedy these problems within the past eight years, indeed their failure to acknowledge these problems in the face of overwhelming evidence, sufficiently supports a conclusion that they will not remedy the conditions within a reasonable period of time.

Father next contends that C & YS, a governmental unit mandated to aid him, illegally, arbitrarily, and unconstitutionally restricted his visitation rights, delayed the return of the child to his natural family, and failed to promote reunification of the family. We have reviewed the record and find these assertions to be unfounded. Rather, the record reveals that C & YS’s initial goal was to reunite the family and services were offered to appellants in an attempt to reach that goal. However, because appellants did not avail themselves of those services, and accordingly, the conditions leading to Steven’s removal were not remedied, C & YS’s goal was changed to adoption. However, even after the goal was changed to adoption, C & YS advised appellants that the adoption recommendation would be revised if appellants became more involved and made progress towards meeting Steven’s needs. In addition, C & YS told appellants that it would not refer the case to the Adoption Department in order to provide yet another opportunity to them to “make diligent efforts toward the reasonably prompt assumption of full parental responsibilities.” In re J.W., 396 Pa.Super. 379, 392, 578 A.2d 952, 959 (1990). Although appellants did then attend the Parental Stress program, their sessions were terminated due to a lack of progress and because of the adverse effects visits were having on Steven.

In a situation such as that presented in this case, both the parents and C & YS have duties to promote reunification.

[The parents’] ‘affirmative duty,’ at minimum, requires a showing by the parent of a willingness to cooperate with the agency to obtain the rehabilitative service necessary for the performance of parental duties and responsibilities. The agency must, of course, put forth a good faith effort in making services available to the parent, and once it has done so on a continuing basis, it has discharged this obligation.

Adoption of J.J., supra 511 Pa. at 602, 515 A.2d at 890 (emphasis omitted). We have thoroughly reviewed appellants’ arguments as well as the evidence of record and have found nothing from which we could conclude that Steven’s return to the family will be possible within a reasonable period of time where eight years have passed and no progress toward this goal has been made. Although the fact that Father and Mother have successfully been raising four other children is evidence that they do possess parenting skills, it does not negate the fact that they were not properly caring for Steven. Their apparent parental abilities with respect to their four other children also did not obviate the need to identify and remedy the problems leading to Steven’s removal. The parents’ unwillingness to recognize and confront these problems has made any improvement virtually impossible. See In re Adoption of Embick, 351 Pa.Super. 491, 516-17, 506 A.2d 455, 469 (1986) (parents’ “attitude is one of resistance predicated upon the erroneous notion that they are capable parents and need no outside assistance”), allocatur denied, 513 Pa. 634, 520 A.2d 1385 (1987). “[Steven] should now be given the opportunity to extricate [himself] from the transitional state of foster ... care, and establish a true parent-child relationship through adoption.” Id., 351 Pa.Superior Ct. at 520, 506 A.2d at 471.

Father also asserts that the trial court improperly based its decision on the fact that Steven is bonded to his foster parents and not his natural parents. In support of his allegation of error, Father cites a case involving custody, In re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984) (en banc). In Donna, an en banc panel of this Court rejected a “psychological bonding presumption,” that is, a presumption, “as a matter of law[,] that where the evidence discloses strong ‘psychological bonding’ to the foster parents, an award to the natural parent is contrary to the children’s best interests.” Id., 325 Pa.Superior Ct. at 57, 472 A.2d at 644. It is true, as Father asserts, that the trial court considered the bonding which Steven has with his foster family. The trial court did not, however, apply the bonding principle to an impermissible degree. Specifically, the trial court found

that the termination of parental rights of Steven’s father and mother will best serve the needs and welfare of Steven. Steven has resided in his foster home for more than seven years. He regards the foster family as his family. He has adjusted well to the home — he is described as a very nice and well-functioning youngster. The possibility that he might be removed from this home creates significant pain and stress. The foster parents wish to adopt. Steven has almost no relationship with his natural parents so termination will not disrupt an existing parent-child relation. Adoption by the foster parents, on the other hand, will give legal recognition to a family which in every important sense already exists.
******
It is clear that Steven’s return to his natural family would be contrary to Steven’s best interests. Even the expert witness whom the parents presented testified that Steven should not be returned unless Steven favors the return. The options proposed to this court by the two professionals are either to give Steven a permanent home with his foster parents or to leave Steven in the foster home as a foster child because of the possibility that as he grows older he may wish to establish a relationship with his natural parents. For the reasons previously discussed, the first option will best serve Steven's needs and welfare.

Trial Court Opinion at 23-24, 27-28 (footnote omitted). The trial court has thoroughly considered the evidence of record and has properly concluded that Steven’s welfare will be best served by termination. It would be detrimental and unfair to Steven to permit the situation to continue as it has, where eight years has passed with no progress and where it does not appear that the situation will change due to the parents’ unwillingness to acknowledge their problems and work towards a solution. Under these circumstances, the trial court properly determined that termination will best serve Steven’s needs and welfare.

Furthermore, while the facts of Donna are somewhat similar to the facts of the present case, Donna does not control the outcome of this case. As Father asserts, the Court in Donna did not place much weight on the fact that there was little interaction between the mother and her children during their visits, which were supervised by a caseworker and a foster parent. In the present case, more than “little interaction” is present. Father’s visitation rights were terminated because of the adverse effects they were having on Steven. In addition, the mother in Donna was willing to work with agencies recommended by C & YS in order to learn to deal with her daughter’s problems. Finally, the Court in Donna recognized that in considering the importance of stability to a child’s welfare, the reasons why the child has been with the third party for so long must be taken into account. Id., 325 Pa.Superior Ct. at 61, 472 A.2d at 646. In Donna, the child had been in foster care for five years. However, for four of the five years the mother had been trying to regain custody of her child, and the delay was caused in large part by the courts. In the present case, Steven has been in foster care for eight years because of the lack of progress on the part of appellants. For these reasons, Donna is distinguishable from the present case. Additionally, Father contends that the trial court improperly applied the best interests of the child approach. In a termination case, the trial court must not apply a best interests analysis in the sense of balancing the foster home and the natural parents’ home. See In re Coast, 385 Pa.Super. 450, 561 A.2d 762 (1989) (en banc), allocatur denied, 525 Pa. 593, 575 A.2d 560 (1990). However, the trial court must, as it did in the present case, consider the child’s needs and welfare. Although the trial court used the term “best interests” at one place in its opinion, see Trial Court Opinion at 27, it did not employ a best interests/weighing of the families analysis.

In his final issue, Father argues that the trial court misinterpreted the testimony of appellants’ expert witness, Dr. Bansavage, that Steven should not be returned to his natural parents unless he favors it. We summarily reject Father’s assertion that the trial court interpreted Dr. Ban-savage’s testimony to mean that “the child would decide the matter.” Father’s Brief at 42. Furthermore, the trial court accurately summarized the substance of Dr. Bansavage’s testimony in its opinion. See Trial Court Opinion at 17-20. Moreover, Dr. Bansavage did in fact testify that in order for Steven to be successfully returned to his natural parents, he would need “proper counseling and a desire to return.” Notes of Testimony, 11/13/90, at 31. He also stated that although he did not recommend termination, he “would not force [reunification] at the present time” in light of the fact that Steven did not appear to want reunification. Id. at 32. We conclude that Father’s allegation of error is meritless.

II. MOTHER’S APPEAL

We will now address the issues Mother raises in her brief. She first contends that the trial court erred in finding that sufficient grounds for termination of her rights were supported by clear and convincing evidence. She contends that “the conditions leading to the removal of the children [sic] do not remain in effect since some of the conditions pertaining to the inadequate housing have indisputably been remedied and the difficulties involved in the feeding and caring for an infant who is in a body cast are no longer present.” Mother’s Brief at 9. This argument misrepresents the nature of the problem, however. Steven was not removed from the natural parents’ home merely because of inadequate housing and the difficulties resulting from his cast. Steven was removed from the home because he was receiving inadequate care. Steven was extremely malnourished, bruised, and suffering from a broken leg. Appellants’ failure to acknowledge their parental inadequacies and to attempt to remedy them reveals that the conditions leading to Steven’s removal are, as the trial court found, still present. Steven’s physical condition when he was removed was a symptom of an underlying problem. Because that problem has not been identified or resolved, the conditions leading to Steven’s removal have not been remedied.

Mother also argues that it is “not proper to deny [her] her parental rights because of any difficulties which her husband may have had in dealing with Children and Youth Services.” Mother’s Brief at 10. It is true that Mother’s relationship with C & YS has not been antagonistic as has Father’s. It is also true that Mother’s visitation with Steven was not terminated as was Father’s. However, it is also true that Mother has not shown a willingness to meaningfully participate in the services offered by C & YS and to develop the skills and the insights which are necessary for Steven’s return.

As to Mother’s second issue, namely, whether termination will best serve Steven’s needs and welfare, we have already discussed our agreement with the trial court’s conclusions.

For the above reasons, we conclude that the trial court properly concluded that the requirements of section 2511(a)(5) have been proven by clear and convincing evidence. We therefore affirm the final judgment.

Final judgment affirmed.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I must respectfully dissent. After a careful review of the record, I find that Children and Youth Services (CYS) did not prove by clear and convincing evidence that the natural parents are unable and unwilling to remedy the conditions that led to the removal of their son from their care.

Steven S. was removed from his parental home when he was two months old. He has not yet been returned to his parents. The trial court, in its opinion, stated that “[t]he incidents that led to Steven’s removal strongly suggested that Steven’s birth had disrupted the functioning of this family.” Steven is now nine years old. It strains credulity to suggest that the same stress and disruption caused by a newborn’s constant need for attention exists today. The trial court clearly states that “this case is unusual in that there are presently four other children in the home. The children appear to be doing well in a family that appears to be providing appropriate care." Moreover, the majority readily admits that “C & YS caseworkers stated that [the father] was fit to be around children, and that psychological tests did not reveal a propensity for child abuse.”

To me, this case is a testament to an agency that has lost sight of its mission. Steven was removed from his home under authority conferred by the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. The primary purpose of the Juvenile Act is to “preserve the unity of the family whenever possible and to provide for the care, protection and wholesome mental development of children____” 42 Pa.C.S.A. § 6301(b)(1) (emphasis added). This court has clearly established that “[a]ny decision to remove the child from his home must be reconciled with the paramount purpose of preserving the unity of the family.” In re Angry, 361 Pa.Super. 180, 184, 522 A.2d 73, 75 (1987), quoting In re Frank W.D., 315 Pa.Super. 510, 518, 462 A.2d 708, 712 (1983); Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976). In order to insure that the goals of the Juvenile Act are carried out, our legislature mandated that a disposition review hearing be conducted at specified intervals “for the purpose of determining whether placement continues to be best suited to the protection and physical, mental and moral welfare of the child.” 42 Pa.C.S.A. § 6351(e). Despite the unequivocal goal of the Juvenile Act, the procedural safeguards incorporated in that legislation, and the emphasis on preservation of the family evident in the case law of the Commonwealth, Steven has been separated from his family, over their strenuous objections, for nearly nine years. Under the circumstances of this case, I find such an extended separation counterproductive and utterly without justification.

The record reveals that there was a constant, antagonistic relationship between CYS and Steven’s father. According to the trial court, the father insisted that “matters be done his way because C & YS’s methods were based on its bureaucratic needs rather than on the needs of the parents and their children. C & YS’s caseworkers viewed the father’s responses as a validation of their beliefs that his personality traits prevented him from being a competent parent for Steven. They responded to the father’s attacks on C & YS by assuming a defensive position.”

C & YS is the state social service agency charged with the responsibility of facilitating reunification of families whose children have been temporarily removed. CYS is ostensibly staffed by professionals — dispassionate individuals trained to work with parents in order to improve the situation which necessitated the removal of their child. For presumably trained social workers to react defensively and distort a distraught father’s antagonism toward a bureaucracy into justification for separating a child from his parents for nearly nine years is reprehensible indeed. For a trial court to involuntarily terminate the parental rights of the natural father and mother on the basis of the prolonged separation and CYS’s biased recommendation constitutes a manifest abuse of discretion.

I would reverse the trial court’s order involuntarily terminating the S.’s parental rights to their son Steven. Mr. and Mrs. S. are competent parents; the admitted well-being of the four children currently residing with them attests to their parenting abilities. I cannot condone punishing the parents by depriving them of their son because of the wanton lack of professionalism exhibited by CYS in its handling of this case.

      . The trial court entered an order and final judgment, rather than a decree nisi and final decree.

      . For example, although the parents knew that C & YS required all letters and cards to Steven to be sent through C & YS rather than directly to Steven, they insisted on repeatedly sending cards and letters directly to Steven at his foster home. Pursuant to C & YS directives, the foster parents refused these cards and letters. As a result, Steven never received them. Because the letters and cards were returned to the natural parents, they knew that their failure to follow C & YS policy resulted in the loss of any benefit these cards and letters may have provided to Steven and to their relationship with him. Nonetheless, they refused to abide by C & YS policy. Although this is a relatively minor infraction, it reveals the parents’ refusal to place Steven’s needs above their own.

      . When Steven was removed from the home, he was diagnosed as suffering from malnourishment. When he was born, he was in the ninety-fifth percentile for weight. When he was removed from the home, he was only in the fifteenth percentile for weight. Moreover, as evidenced by the photographs which were included in the record, he was extremely emaciated in appearance. In light of this evidence, the parents’ explanations that he was eating normally but was thin due to the profuse sweating caused by the heat of their apartment and the cast which he was in are not reasonable or credible. Their continued inability or refusal to recognize the problems which obviously existed is further evidence that the conditions leading to Steven's removal still exist.

      . We note that appellants apparently contacted other social service agencies which provided other parenting programs. According to Father, C & YS refused to approve appellants’ participation in these agencies. According to the caseworkers, these agencies were not appropriate for this case.


text:
    612 A.2d 474
    COMMONWEALTH of Pennsylvania, Appellee, v. Charles Robert WOOD, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1991.
    Filed July 9, 1992.

      John A. Roth, Latrobe, for appellant.
    Emily L. Smarto, Asst. Dist. Atty., Greensburg, for Com., appellee.
    Before WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Wood after a jury convicted him of criminal attempt murder and two counts of aggravated assault. The trial court denied Wood’s timely filed post-verdict motions and sentenced him to serve consecutive terms of imprisonment of two to four years for the criminal attempt murder and eight to sixteen years for the aggravated assault. This appeal followed. We affirm.

In his appeal, Wood claims the trial court committed three errors: (1) refusing to permit Wood to undergo a psychiatric examination allegedly necessitated by his contradictory cross-examination responses; (2) denying Wood’s offer of evidence of prior consistent statements he had made for the purpose of rebutting the Commonwealth’s evidence; and (3) failing to merge Wood’s convictions for aggravated assault and criminal attempt murder for sentencing purposes. Because Wood raised a merger issue akin to that presented in Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992) the Superior Court unanimously certified this case for reargument en banc.

The facts adduced at trial are both simple and tragic. Wood shot his wife Louise in the hip with a twelve-gauge shotgun and then struck her on the head with the butt of the gun by using it as a club. The victim did not die, but is totally incapacitated, both mentally and physically, as a result of her husband’s actions.

We note, initially, the trial court’s observation that Wood’s first and second arguments were not included in his post-trial motions. Wishing to afford Wood every opportunity to have his case reviewed, the trial court nevertheless addressed the merit of these issues. We will likewise address the merit of each issue.

The evidence fails to support Wood’s claim that his cross-examination testimony demonstrated an inability to understand the proceedings or to cooperate with counsel in defending himself. See Commonwealth v. Hazur, 372 Pa.Super. 306, 539 A.2d 451 (1988) (test for competence is whether the defendant can comprehend his position as one accused of an offense and cooperate with his counsel in making a rational defense). Several facts support our conclusion. Initially, we note that throughout Wood’s testimony, he answered a myriad of questions and used notes prepared ahead of time in reviewing and preparing his case for trial. Moreover, not until his cross-examination did Wood begin to show signs of “confusion,” testifying to a different version of the events which generated this case. Indeed, the trial judge, who was in the best position to assess Wood’s demeanor, believed Wood’s inconsistency to be the result of an effective cross-examination, not incompetence: “The reason he is answering that way, he is now trapped, he doesn’t know what to say. He is trapped in his own story.” (N.T. 3/5-13/90 at p. 691). Additionally, Wood had undergone two psychiatric evaluations within five months of the trial. Neither of those evaluations indicated that Wood was incompetent to stand trial. Wood had also filed pro se motions concerning complicated legal issues. Finally, Wood’s counsel considered him competent enough to take the stand in his own defense; not until his client was floundering on cross-examination did defense counsel request a psychiatric evaluation. In light of these facts, we cannot say the trial court abused its discretion in denying Wood’s request for a hearing on his competence.

Wood’s second challenge is likewise meritless. Because defense counsel announced in his opening statement that he intended to present evidence that Wood feared his wife, due to her abusive behavior toward him, the trial court permitted the Commonwealth to introduce testimony regarding physical confrontations between Wood and his wife. At the beginning of his case, Wood then tried to call several witnesses who would testify to certain prior consistent statements by Wood about physical confrontations with his wife in which she was the aggressor. Wood had not yet taken the stand, nor had his credibility been impeached by the prosecution. In Pennsylvania, prior consistent statements are hearsay when offered for the truth of their assertions. Commonwealth v. Willis, 380 Pa.Super. 555, 552 A.2d 682 (1988), alloc. denied, 522 Pa. 583, 559 A.2d 527 (1989). Such statements may be offered, however, to rehabilitate a witness whose credibility has been attacked with a charge of recent fabrication or faulty memory. The trial court’s ruling in this case did not prevent Wood from calling his witnesses. Rather, the ruling dictated at what point in his case Wood could offer their testimony, i.e., not until after Wood had taken the stand and been subjected to an attack on his credibility. We find no error in the trial court’s ruling.

Wood’s third challenge implicates the merger doctrine. As stated above, Wood received consecutive sentences on the convictions of criminal attempt murder and aggravated assault. The trial court based Wood’s sentence on its determination that Wood committed two independent criminal acts, i.e., shooting and bludgeoning his wife. According to the trial court, the act of shooting constituted an aggravated assault and the act of bludgeoning constituted an attempt to kill. Because the two crimes arose out of two separate acts, the trial court did not merge the offenses for sentencing purposes. On appeal, Wood raises several arguments: 1) whether a single act occurs depends on a defendant’s mens rea; 2) a defendant should be sentenced according to his mens rea; and 3) because he had a single mens rea of attempting to kill his wife, which is a higher degree of mens rea than that required to commit aggravated assault, Wood should only have been sentenced according to the highest degree of mens rea. Wood further alleges that a sentence on the aggravated assault conviction, in addition to the attempted murder sentence, would make the aggravated assault statute a strict liability statute, e.g., in any situation where there was an attempted murder caused by some violent act, the defendant would necessarily be guilty of aggravated assault once the attempted murder was established. Because we find that Wood committed two separate acts, we reject his mens rea argument and affirm the judgment of sentence.

The common law doctrine of merger was significantly altered by this Commonwealth’s highest court in its recent decisions of Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989), and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989). In Leon Williams, the Pennsylvania Supreme Court granted an allowance of appeal to decide the question of when convictions merge, for sentencing purposes, when they arise from the same act. Under the facts presented, Williams pled guilty to aggravated assault, criminal attempt at robbery, and unlawful restraint. In concluding that the crimes of aggravated assault and unlawful restraint do not merge for sentencing purposes, the Supreme Court completely re-examined the doctrine of merger in Pennsylvania.

The Supreme Court began with an analysis of the two-prong merger test established two years earlier in Commonwealth v. Michael Williams, 514 Pa. 124, 522 A.2d 1095 (1987). The Court summarized the first prong of the Michael Williams test, i.e., that the crimes “necessarily involve” one another, as follows:

Crimes “necessarily involve” each other, ... if one of two possible scenarios occurs: (1) the crimes have the same elements (i.e., lesser included offenses), or (2) the facts of the case are such that although the elements of the crimes differ, the facts which establish one criminal charge also serve as the basis for an additional criminal charge.

Leon Williams, 521 Pa. 560, 559 A.2d at 27-28 (footnotes omitted). The Court then defined a lesser included offense as “a crime the elements of which are a necessary subcomponent but not a sufficient component of elements of another crime, the greater included offense.” Id., 521 Pa. 561, 559 A.2d at 28 n. 2. If the first prong of the Michael Williams merger test was met, then a court had to determine whether the Commonwealth had substantially different interests in prosecuting the defendant for two or more separate crimes. In other words, a trial court had to decide what interests of the Commonwealth were at stake and how the particular facts of the case would bear on these interests.

While recognizing it promulgated this analysis for merger only two years before, the Leon Williams court concluded the analysis was flawed and must be abandoned. The Court opined that the governmental interests were difficult to define with any precise degree of certainty; also, the merger test of Michael Williams provided no guidance regarding merger based on governmental interests because the test did not establish how many offenses against the Commonwealth had been committed. Therefore, the Supreme Court rejected the Michael Williams governmental interest test and narrowed the test for merger in Pennsylvania to lesser included offenses:

In view of these shortcomings of our merger analysis as it was expressed in [Michael Williams], we now hold that except for lesser included offenses, the doctrine of merger based on whether the Commonwealth has an interest in prosecuting a criminal defendant for more than one crime is hereby abrogated and abolished.

Leon Williams, 521 Pa. 564, 559 A.2d at 29 (emphasis in the original). While not explicitly expressed above, when the Leon Williams court stated that merger applies only to lesser included offenses, it also abandoned fact-based merger, i.e., merger based upon one set of operative facts establishing more than one crime.

The second case to alter Pennsylvania’s merger doctrine was Commonwealth v. Weakland, supra. Weakland pleaded guilty or nolo contendere to various crimes arising from the murder of Cecil Rash and the robbery of a gas station owned by the decedent and his wife. Weakland pleaded guilty to two counts of robbery and one count of criminal conspiracy, and entered a plea of nolo contendere to one count of kidnapping, four counts of aggravated assault, one count of theft, and a general charge of homicide. Following denial of post-trial motions, the trial court sentenced Weakland to life imprisonment on the murder conviction (at a degree of guilt hearing, a three judge panel had determined that Weakland was guilty of first degree murder), and fifty-three and one-half to one hundred seven years imprisonment on the remaining charges.

The Weakland Court summarized the facts supporting these convictions as follows:

The facts in this case are that [Weakland] and his brother Robert conspired to rob a service station owned by Cecil and Florence Rash. [Weakland] entered the repair bay of the station, where Cecil Rash was working on a car, struck him with a wrench, knocking him to the ground, and removed $51.00 from his wallet. He then entered the office of the station, where his brother Robert was holding Mrs. Rash. One of the brothers then tore the telephone from the wall, and Robert assaulted Mrs. Rash. Both brothers took money and other items from the service station, and placed them in their car. The two robbers were approaching their car when Mrs. Rash, who had been thrown to the ground outside the station, got up and shouted to an approaching customer that the station was being robbed and that the customer should leave and call the police. [Weakland], who was apparently not far from Mrs. Rash when she warned the customer, started to pick up a cinder block which was used to anchor an air hose. At that point, Mr. Rash, covered with blood, and without his glasses, emerged from the garage, armed with a .22 caliber nine-shot revolver. He ordered [Weakland] not to hurt his wife, and then fired at him, wounding him in the leg. [Weak-land] fell to the ground and crawled a short distance away. Robert began throwing bottles at the Rashes from behind the Weaklands’ car, and Mr. Rash fired at least once at Robert, but to no avail. [Weakland] also began throwing items at the Rashes, and after he hit Mr. Rash with a trashcan, he rushed him and the two men wrestled for the gun. While the two men wrestled, Mrs. Rash repeatedly struck [Weakland] on the head with a large tire gauge until it broke, and then turned to wave for help from passing motorists. [Weakland] finally got the gun from Mr. Rash and fired at Mrs. Rash, striking her in the fingers and arm. He then fired twice at Mr. Rash, striking him in the heart and killing him.
By the time [Weakland] shot Mr. Rash, a witness, Edwin Wilson, had pulled his car into the service station, and was standing in front of his car, three or four paces from [Weakland], when the shooting occurred. [Weak-land] then rushed the [sic] Mr. Wilson, striking him in the head with the gun. The two struggled, and then stopped when [Weakland] told the witness that he did not want to have to kill him. Mr. Wilson said that he did not want to be killed, but then [Weakland] struck him again in the face with the gun and forced him into Mr. Wilson’s car. Mr. Wilson was then required to push the Weaklands’ car with his car to start it and to drive his own car from the station with [Weakland] as a passenger. Shortly thereafter, Mr. Wilson was forced from the car and [Weakland] used it to perfect his escape.

Weakland, 521 Pa. 358-359, 555 A.2d at 1230-31.

The Supreme Court granted the Commonwealth’s petition for allocatur in Weakland, in order to consider whether this Court properly treated the merger questions raised by Weakland’s convictions. The merger questions involved merger of two of the four assault charges with other convictions; one into another assault charge and the other into a kidnapping charge.

The first merger question dealt with the two assaults upon Mrs. Rash; initially, when Weakland’s brother ripped the telephone off the wall and, secondly, Weakland’s assault upon her when he shot her. Weakland was charged with violations of the Pennsylvania Crimes Code, specifically, section 2702(a)(1), causing or attempting to cause serious bodily injury to another, and section 2702(a)(4), causing or attempting to cause bodily injury with a deadly weapon. Deciding that merger of these two assaults was appropriate, this Court declined to consider evidence presented at a degree of guilt hearing, in addition to those facts presented at the guilty plea colloquy. The reason for omitting this evidence was because it did not serve as part of the factual basis of the plea. This state’s high court disagreed:

[I]f the defendant has the right to participate with counsel in a contested proceeding during which disputed issues of fact are resolved, it matters not whether the evidence is admitted at a hearing during which the plea is accepted, at another hearing at which degree of guilt is determined, or just prior to sentencing at the sentencing hearing. So long as the evidence is properly admitted by the court prior to sentencing, and so long as the defendant has the right to challenge it, it may be considered for sentencing purposes.

Weakland, 521 Pa. 357, 555 A.2d at 1230. Upon considering this additional testimony, the Supreme Court found sufficient independent facts to support both the 2702(a)(1) and the 2702(a)(4) convictions. Consequently, the Supreme Court held that this Court erred in merging these two aggravated assault convictions.

The second merger question involved the propriety of this Court’s holding that one of the aggravated assault charges arising from Weakland’s contact with Mr. Wilson merged with the charge of kidnapping Mr. Wilson. Although this Court found two distinct assaults upon Mr. Wilson and did not, therefore, merge those convictions, i.e., under § 2702(a)(1) when Weakland hit Mr. Wilson several times with the gun and under § 2702(a)(4) when he shoved the barrel of the gun into Mr. Wilson’s face and forced him into the car, this Court held that the latter assault merged with the kidnapping conviction because it was the same act which the Commonwealth relied on to prove the force necessary to establish the elements of the kidnapping charge. Finding that the second assault and the kidnapping were, in effect, one crime, this Court merged the convictions for sentencing purposes.

In its appeal, the Commonwealth alleged that the necessary force required for a kidnapping conviction was present in the case, in addition to the force described in the above aggravated assaults. In essence, the Commonwealth’s theory was that the continued threat posed by the weapon supplied the threat of force necessary for the kidnapping conviction separate and apart from the second assault inflicted upon Mr. Wilson by Weakland shoving the barrel of the gun into Wilson’s face. The Supreme Court began its merger analysis by stating:

Although we have this day repudiated the test for merger set out in Superior Court’s Commonwealth v. Leon Williams as it relates to whether discreet “Commonwealth interests” have been implicated by two separate convictions arising from one criminal transaction, see Commonwealth v. Leon Williams, [521 Pa. 556, 559 A.2d 25 (1989)], we nevertheless agree with Superior Court that it would be an abuse of the merger doctrine if it were used to give the criminal “rights” to unlimited violence in perpetrating any of the crimes requiring violence or threat of violence as an element.

Weakland, 521 Pa. at 362, 555 A.2d at 1232. Then, following a citation to this Court’s reasoning in Commonwealth v. Leon Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985), the Weakland court continued as follows:

We agree with Superior Court that when multiple acts of violence accompany another crime which requires violence or threat of violence as an element, convictions of multiple violent acts should not merge for sentencing purposes beyond that which is necessary to supply the element of violence or threat for the additional crime.

Weakland, 521 Pa. at 363, 555 A.2d at 1233. The Supreme Court then distinguished the merger question presented in Weakland from that presented in Leon Williams:

In this case, as in the companion case of Commonwealth v. Leon Williams, [521 Pa. 556, 559 A.2d 25 (1989)] also decided this day, it has been our goal to simplify and explain the doctrine of merger as it relates to the facts presented. In Leon Williams we held that where the same facts are used to support convictions for crimes having different elements, the crimes do not merge for sentencing purposes, unless the same facts support convictions of lesser included offenses. That holding does not apply to the present case because the problem here is not whether the same facts support multiple convictions, but whether facts in evidence additional to those facts establishing aggravated assault, i.e., that [Weakland] continued to threaten Mr. Wilson with a handgun, should have been used to satisfy the threat or force requirement of kidnappingf,] ... for otherwise, a violent criminal would be permitted to perpetrate multiple crimes while suffering only partial liability for the harm he has wrought.

Weakland, 521 Pa. at 363-364, 555 A.2d at 1233 (emphasis in original). The Supreme Court concluded its analysis by summarizing the newly announced merger doctrine as follows:

For the foregoing reasons, we hold that if a person commits one act of criminal violence, and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime. If, however, the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime, then the actor will be guilty of multiple crimes which do not merge for sentencing purposes. In this case, merger of the aggravated assault conviction into the kidnapping conviction was inappropriate because the act of holding Mr. [Wilson] at gunpoint was separate and apart from the aggravated assault and was sufficient to supply the element of threat necessary for the kidnapping conviction.

Id. While not essential to the merger analysis in the present case, it should be noted that, under the single act theory of merger, it is only the lesser included offense test, not the broader “necessarily included” test, which determines merger. See Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992).

The facts of the case sub judice present an instance where the holding of Weakland is clearly controlling. Wood attempted to, and did in fact, cause serious bodily injury to his wife by shooting her in the hip; this fact alone was sufficient to support the aggravated assault conviction. In addition, Wood, by bludgeoning his wife with the gun stock, committed an additional criminal act beyond that necessary to establish the crime of aggravated assault. This additional act was sufficient to establish the substantial step necessary to support Wood’s conviction of attempted murder. The two crimes, based on separate criminal acts of violence, do not merge for sentencing purposes. We likewise cannot accept Wood’s argument that a defendant’s mens rea determines how many criminal acts occurred and, once again, note that both attempted murder and aggravated assault are crimes with different specific intents that do not merge for sentencing purposes. See Commonwealth v. Anderson, supra. For these reasons, we affirm the separate sentences imposed by the trial court.

Judgment of sentence is affirmed.

WIEAND, J., files a dissenting opinion in which McEWEN, DEL SOLE and BECK, JJ., join.

WIEAND, Judge,

dissenting:

The majority holds that appellant’s convictions for aggravated assault and attempted murder do not merge for purposes of sentencing because the convictions were based upon different criminal acts. According to the majority, appellant’s conviction for aggravated assault was based upon his act of shooting his wife in the hip, while his conviction for attempted murder was based upon his subsequent act of striking his wife in the head with the butt of the shotgun. This, however, is contrary to the charges made against appellant in the information. While I agree that crimes which are based upon separate criminal acts should not merge, my review of the record in the instant case causes me to conclude that appellant’s convictions for aggravated assault and attempted murder were based upon the same factual predicate, namely, the combined acts of shooting and bludgeoning his wife with the gun. He was not charged and the jury was not instructed to find that the separate acts of shooting and bludgeoning constituted separate crimes.

The current test used to determine whether offenses should merge for purposes of sentencing was established by the Supreme Court in Commonwealth v. Williams, 521 Pa. 556, 559 A.2d 25 (1989) and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989). This test has been summarized by the Superior Court as follows:

In order for offenses to merge, one offense must be a “lesser included offense” of the other, i.e. the elements of the lesser offense must be identical to and capable of being wholly subsumed within the elements of the greater offense, and the factual predicate for the lesser included offense must also be part of the factual predicate required to establish the greater offense.
Our Supreme Court has thus adopted what amounts to a conclusive presumption of legislative intent, or a rule of statutory construction, which provides that the legisla.ture will be conclusively presumed to have intended to vindicate any and all interests violated by a lesser included offense in the authorized penalty for the greater offense, and that when the legislature creates an offense whose elements cannot be wholly subsumed within those of another offense, the legislature will be conclusively presumed to have identified a separate interest to be separately vindicated. The only exception to these bright line rules or presumptions applies when facts other than those required to support the greater offense support a conviction for an otherwise lesser included offense.

Commonwealth v. Yates, 386 Pa.Super. 282, 287-288, 562 A.2d 908, 911 (1989) (citations omitted).

In my judgment, aggravated assault is a lesser included offense of attempted murder; and, therefore, when a defendant has been convicted of both of these offenses because of the same criminal conduct, his convictions merge for purposes of sentencing. See: Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992) (en banc) (Wieand, J., dissenting). Therefore, the issue in the instant case is whether the same factual predicate was the basis for convicting appellant of both aggravated assault and attempted murder.

My review of the record discloses that appellant was charged by criminal information with attempted murder, with one count of aggravated assault under 18 Pa.C.S. § 2702(a)(1) and with a second count of aggravated assault under 18 Pa.C.S. § 2702(a)(4). However, it was alleged by the Commonwealth in each count of the information that the crime had been committed by appellant when he “shot Louise Wood with a twelve-gauge shotgun and then struck her in the head at least two times using the shotgun as a club.” In accordance therewith, the trial court instructed the jury that the charge of attempted murder and both counts of aggravated assault were based upon the same alleged conduct, i.e., the shooting of appellant’s wife and striking her with the shotgun. Thus, appellant’s convictions for attempted murder and both counts of aggravated assault were based upon precisely the same factual predicate.

Thereafter, the trial court concluded that appellant’s conviction for aggravated assault under § 2702(a)(4) merged with the conviction for aggravated assault under § 2702(a)(1), but the court refused to merge the aggravated assault into appellant’s conviction for attempted murder.

I would hold, under the circumstances of this case and for reasons stated in my dissenting opinion in Commonwealth v. Anderson, supra, that the crimes of aggravated assault and attempted murder in this case merged for purposes of sentencing. All crimes consisted of a single, factual predicate, i.e., the shooting and bludgeoning of appellant’s wife. Because the majority has reached a contrary conclusion, I respectfully dissent.

McEWEN, DEL SOLE and BECK, JJ., join in this dissenting opinion by WIEAND, J.

      . 18 Pa.C.S. § 901(a) and § 2501(a) (Purdon 1983).

      . 18 Pa.C.S. § 2702(a)(1) and § 2702(a)(4) (Purdon 1983 & Supp. 1991), respectively.

      . Wood was convicted of aggravated assault under both 18 Pa.C.S. § 2702(a)(1) and § 2702(a)(4). At sentencing, Judge Loughran imposed no sentence on the latter conviction of aggravated assault due to his belief that § 2702(a)(4) merged with § 2702(a)(1) for sentencing purposes. Neither party questions the propriety of this action and we shall not, therefore, address it. Our discussion will focus on whether the sentence on the single count of aggravated assault and one count of criminal attempt murder should merge for sentencing purposes.

      . By order dated March 22, 1990, the trial court allowed Wood to file additional post-trial motions ten days after the receipt of the trial transcript by counsel. Wood did not file any supplemental motions. However, when the trial court received Wood’s brief in support of his post-trial motions, two issues were addressed that were not earlier raised. The trial court nevertheless heard arguments on these issues and rendered an opinion thereon. In such circumstances, we will not find waiver. Cf. Commonwealth v. Sopota, 403 Pa.Super. 1, 587 A.2d 805 (1991) (en hand) (this Court will consider issues raised in post-trial motions, filed without leave of court, if the trial court has addressed them on their merits).

      . The Pennsylvania Supreme Court also stated that, even though the initial assault upon Mrs. Rash was committed by Weakland’s brother Robert, Weakland was responsible as an accomplice.

      . Pursuant to 18 Pa.C.S. § 2702(a)(1), “[a] person is guilty of aggravated assault if he 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.” This offense is graded as a felony of the first degree. 18 Pa.C.S. § 2702(b).

      . Pursuant to 18 Pa.C.S. § 2702(a)(4) "[a] person is guilty of aggravated assault if he attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.” This offense is graded as a felony of the second degree. 18 Pa.C.S. § 2702(b).

      . Although I express no opinion regarding the correctness of this determination by the trial court, it is eminently clear therefrom that the trial court found that the same factual predicate had been the basis for both aggravated assault offenses.


author: WIEAND, Judge:

text:
    612 A.2d 482
    COMMONWEALTH of Pennsylvania, Appellant, v. Stephen CAMPERSON, Appellee.
    Superior Court of Pennsylvania.
    Argued May 13, 1992.
    Filed July 10, 1992.
    Reargument Denied Sept. 16, 1992.

      Nicholas J. Casenta, Jr., Downingtown, for the Com., appellant.
    Robert J. Donatoni, West Chester, for appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

Stephen Camperson was charged with drug related offenses based upon contraband seized from his home pursuant to warrant on December 7, 1989. Probable cause for the warrant had been obtained via criminal conduct in which Camperson had engaged earlier on the same day. The trial court, in response to a defense motion in limine, barred testimony of Camperson’s earlier criminal conduct during the Commonwealth’s case in chief against Camperson in the trial for drugs found in his home. The Commonwealth, certifying that the trial court’s order substantially handicapped its prosecution of Camperson, filed the instant appeal.

On December 6, 1989, Brian Wynn was arrested for selling methamphetamine to an undercover police officer in Montgomery County. He told police that he had obtained the controlled substance from Stephen Camperson. On December 7, 1989, Wynn met with Camperson under police surveillance and delivered to him, in exchange for a promise to deliver drugs, the sum of $3500, which had been provided by the police. Arrangements were made for delivery to take place at 5:00 p.m. at the Country Tavern in Chester County. Camperson was kept under police surveillance throughout the day; and after he had stopped at his home and while on his way to meet Wynn, the police attempted to stop him in his vehicle. A lengthy chase ensued in which Camperson was not apprehended until he exited his vehicle and attempted to flee on foot. When apprehended, he was found to be in possession of-238.8 grams of methamphetamine and the $3500 which had been given to him by Wynn. For this conduct, Camperson was charged, under Information No. 178-90, with possession of methamphetamine, possession of methamphetamine with intent to deliver and recklessly endangering another person.

After a subsequent search of Camperson’s home, he was charged additionally, under Information No. 3108-90, with escape, possession of methamphetamine, possession of methamphetamine with intent to deliver, possession of cocaine, possession of cocaine with intent to deliver and possession of drug paraphernalia. A motion to consolidate the two informations for trial was denied. Thereafter, in March, 1991, Camperson was tried non-jury and was found guilty of the offenses charged at 178-90. He then moved to prevent the Commonwealth from using evidence of the offenses of which he had been found guilty during the trial for offenses charged at No. 3108-90. Pursuant thereto, the trial court entered an order as follows:

AND NOW, to wit, this 22nd day of May, 1991, upon consideration of Defendant’s Motion in Limine it is hereby ORDERED and DIRECTED that the portion of the Motion which seeks to preclude the Commonwealth from introducing evidence at its case in chief at the trial of Information No. 3108-90 of the conduct that gave rise to the charges in Information No. 178-90 or the conviction on the charges in Information No. 178-90 is hereby GRANTED.

On appeal, the Commonwealth argues that the evidence of Camperson’s criminal activity earlier in the day is “strongly probative of the defendant’s knowledge of controlled substances in his residence, his power and intent to control those substances, and his possession of those substances with the intent to deliver.”

The law applicable to evidence of prior criminal activity was stated by the Supreme Court in Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989), as follows:

Evidence of a defendant’s distinct crimes are not generally admissible against a defendant solely to show his bad character or his propensity for committing criminal acts, as proof of the commission of one offense is not generally proof of the commission of another. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 497 (1988). However, this general proscription against admission of a defendant’s distinct criminal acts is subject to numerous exceptions where special circumstances exist which render such evidence relevant for some legitimate evidentiary reason and not merely to prejudice the defendant by showing him to be a person of bad character. Some of the exceptions that this Court has recognized in the past as legitimate bases for admitting evidence of a defendant’s distinct crimes include (but are not limited to): (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one naturally tends to prove the others; (5) to establish the identity of the person charged with the commission of the crime on trial where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other; (6) to impeach the credibility of a defendant who testifies in his trial; (7) situations where defendant’s prior criminal history had been used by him to threaten or intimidate the victim; (8) situations where the distinct crimes were part of a chain or sequence of events which formed the history of the case and were part of its natural development (sometimes called “res gestae” exception). See Commonwealth v. Lark, supra 518 Pa. at 302, 543 A.2d at 497 and cases cited therein, and Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987).

Id. 521 Pa. at 177, 555 A.2d at 840. See also: Commonwealth v. Grekis, 411 Pa.Super. 513, 531, 601 A.2d 1284, 1293 (1992); Commonwealth v. Bybel, 399 Pa.Super. 149, 154-155, 581 A.2d 1380, 1382-1383 (1990). Cf. Commonwealth v. Martinez, 301 Pa.Super. 121, 447 A.2d 272 (1982). In Commonwealth v. Harvey, 348 Pa.Super. 544, 502 A.2d 679 (1985), the Superior Court added:

“To be admissible to show intent or motive, the evidence must give sufficient ground to believe that the crime currently being considered grew out of or was in any way caused by the prior set of facts and circumstances.” Commonwealth v. Brown, supra 280 Pa.Super. [303] at 308, 421 A.2d at 736, citing Commonwealth v. Schwartz, 445 Pa. 515, 285 A.2d 154 (1971). There must be a logical connection between the prior incident and the crime for which the accused is being tried. Important factors to be considered in making this determination include the proximity in time between the incidents; the similarity in the circumstances surrounding the incidents; and whether evidence of the prior crime is necessary to rebut the accused’s evidence or contention of accident, mistake or lack of required intent. See: Commonwealth v. Sparks, supra 342 Pa.Super. [202] at 206, 492 A.2d [720] at 722 [ (1985) ]; Commonwealth v. Barba, supra 314 Pa.Super. [210] at 222, 460 A.2d [1103] at 1109 [(1983)].

Id. 348 Pa.Super. at 558, 502 A.2d at 686. However, even where evidence of prior criminal conduct is within one of the above exceptions, the trial court must balance the need for the evidence against its potential prejudice in order to determine its admissibility. Commonwealth v. Steele, 408 Pa.Super. 128, 131, 596 A.2d 225, 227 (1991); Commonwealth v. Echevarria, 394 Pa.Super. 261, 267, 575 A.2d 620, 623 (1990). The trial court’s determination regarding the admissibility of evidence of prior crimes will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Nolen, 390 Pa.Super. 346, 568 A.2d 686 (1989); Commonwealth v. Laskaris, 385 Pa.Super. 339, 561 A.2d 16 (1989).

In the instant case, the defendant was charged with crimes involving a specific intent. He was charged with possessing controlled substances with the intent of delivering them to other persons. Therefore, it was clearly relevant to show that a few hours before police found controlled substances in Camperson’s residence, he had agreed to sell drugs to a third person. See: Commonwealth v. Matthews, 415 Pa.Super. 306, 609 A.2d 204 (1992); Commonwealth v. Echevarria, supra 394 Pa.Super. at 267-268, 575 A.2d at 623. See also: United States v. Jones, 676 F.2d 327 (8th Cir.1982) (defendant’s offer to sell cocaine held admissible to show intent to deliver marijuana); Hill v. State, 176 Ga.App. 509, 336 S.E.2d 276 (1985) (testimony of witness that in past he had sold marijuana for defendant admissible to show defendant’s intent to sell marijuana in present); People v. Mumford, 169 A.D.2d 569, 564 N.Y.S.2d 424 (1991) (buy money from prior sale admissible in trial for drugs found pursuant to search at time of arrest).

The trial court concluded that the evidence, even if relevant, was outweighed by its prejudicial effect. It would, the court believed, “produce the danger that the facts offered would unduly arouse the jury’s emotional prejudice and hostility against the defendant.” If the evidence was so unduly prejudicial, however, it is difficult to comprehend the trial court’s willingness, as expressed in its opinion, to reconsider its ruling if the Commonwealth found it necessary to rebut evidence offered by the defense.

It requires no citation of authority that the burden of proving defendant’s guilt is on the Commonwealth. To meet this burden, the Commonwealth may rely upon and present to the jury all relevant evidence which is not subject to exclusion. Here, the Commonwealth is required to prove, inter alia, that the methamphetamine found in the defendant’s home was intended for distribution to others. Although this intent may be proved in several ways, one of the strongest and most compelling pieces of evidence is that the defendant, in fact, had been distributing methamphetamine on the same day on which methamphetamine and cocaine were found in his home. The evidence of his prior conduct, therefore, will not only be important to the Commonwealth but also enlightening to the factfinder. When the trial court refused to allow the Commonwealth to use the prior offer to sell methamphetamine in order to establish its case against the defendant, the court abused its discretion and committed an error of law.

We agree with the trial court, however, that the evidence relied upon by the Commonwealth to prove Canqh erson’s guilt of recklessly endangering another person in the prior trial was irrelevant and inadmissible in the second trial. Evidence of the police chase which led to Camper-son’s arrest did not tend to establish either guilt or innocence on the charges arising from contraband subsequently found by the police in his residence. Moreover, such evidence would be inflammatory and unfairly prejudicial without serving a legitimate purpose. Therefore, the trial court correctly ruled that it could not be used by the Commonwealth to establish a prima facie case against the defendant in No. 3108-90.

Reversed and remanded for proceedings consistent with the foregoing opinion. Jurisdiction is not retained.

KELLY, J., concurs in the result.

      . The appeal is proper. See: Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992); Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).