author: HESTER, Judge:

text:
    558 A.2d 535
    COMMONWEALTH of Pennsylvania v. Lamont C. BULLOCK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 19, 1988.
    Filed March 21, 1989.
    Reargument Denied May 31, 1989.

      John Packel, Assistant Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com.
    Before CIRILLO, President Judge, and WATKINS and HESTER, JJ.
   HESTER, Judge:

This is an appeal by Lamont Bullock, appellant, from the judgment of sentence imposed following his conviction by a jury of involuntary deviate sexual intercourse (IDSI), simple assault, and possessing an instrument of crime. Following the denial of post-verdict motions, the court sentenced appellant to ten to twenty years imprisonment for IDSI with a consecutive two-to-five-year term for possessing an instrument of crime.

The record establishes the following facts. On September 28, 1987, at about 9:80 p.m., Donna Johnson walked one-half block to a neighborhood store to buy disposable diapers for her son. As she entered the store, she encountered appellant, whom she knew as “Pippie,” and another man in front of the store. Appellant asked her for money; Ms. Johnson retorted that she had none. Upon exiting the store, Donna Johnson gave appellant’s mother, who was sitting on the steps of her home near the store, a few cigarettes in response to her request. Appellant then crossed the street and asked Ms. Johnson to step into the vestibule of his mother’s house. When Ms. Johnson complied, appellant put a knife to her throat and forced her to a third-floor bedroom.

Appellant ordered the victim to disrobe, while threatening her with the knife. He removed his clothing also and ordered the victim to lay on top of him on the bed. Appellant forced the victim to engage in oral sex four times. He then ordered her onto the floor and began fondling her. When Ms. Johnson continued to resist, appellant punched the victim in the right eye, causing it to bleed. Thereafter, in an attempt to distract appellant, the victim told him she had money in her pocket which he could have to buy drugs.

Appellant then began searching the victim’s clothes for money; when she dressed, he searched the bedroom and bathroom. During this time, Ms. Johnson moved toward the stairway, but the position of the bathroom door prevented her escape. When appellant returned to the bedroom to continue his search, the victim ran down the steps and out the front door past appellant’s mother in search of police. N.T., 3/9/88, at 55-81.

Police Officer Richard O’Neill testified that while on patrol in a marked automobile in appellant’s neighborhood on September 28, 1987, at approximately 10:30 p.m., the victim waved him down. She was crying hysterically and bleeding from the right eye. Through her sobs, Officer O’Neill learned she had been forced to perform oral sex on appellant several times, and he had punched her in the face. Ms. Johnson described appellant and referred to him by his nickname, Pippie. This information was broadcast over police radio. Id. at 156-58.

Meanwhile, appellant left his mother’s home and approached two police officers in the neighborhood. Id. at 81, 167. Police Officer Kenneth Rossiter testified that appellant told Rossiter and his partner that he had been in a fight with a “bitch” and that she had fallen down the stairs. Officer Rossiter testified that appellant appeared to be “high” but did not smell of alcohol. Appellant then walked away. Id. at 166-68. Shortly thereafter, upon hearing the radio broadcast, the officers questioned appellant and detained him. The victim subsequently identified appellant as her attacker, and he was arrested. Id. at 171-72.

Appellant presents the following issues for our review: (1) whether the trial court erred in refusing to ask prospective jurors if they could read and write; (2) whether the trial court erred in denying evidence of prior sexual conduct between appellant and the victim; (3) whether the prosecutor engaged in misconduct during his closing argument to the jury; and (4) whether the trial court’s decision to restrict access to the courtroom during the charge to the jury denied appellant his constitutional right to a public trial. We affirm.

Appellant first asserts that the trial court erred in failing to inquire whether prospective jurors could read and write. As the record reflects the selection of a competent and impartial jury, we reject appellant’s claim.

Counsel for appellant requested, inter alia, that the court ask the jurors if they could read and write. The trial court refused to specifically ask that question, but advised counsel he would inquire as to the extent of their education and what schools they attended. The court further advised counsel to request a sidebar following voir dire if any pertinent questions were not asked. N.T., 3/8/88, at 7-9.

Appellant’s argument is premised upon 42 Pa.C.S. § 4502(1), which provides,

§ 4502. Qualifications of jurors

Every citizen of this Commonwealth who is of the required minimum age for voting for State or local officials and who resides in the county shall be qualified to serve as a juror therein unless such citizen:
(1) is unable to read, write, speak and understand the English language! .]

He contends, notwithstanding each juror’s ability to engage in an extensive colloquy with the court and to give understandable responsive answers to the questions posed, the court’s failure to ask whether each juror could read and write English denied him the opportunity to eliminate jurors who he claims may not have complied with the requirements for service specified in the above statute.

A review of the record reveals that the trial court, following an outline of the pertinent legal principles and the salient facts of the crime, posed a number of questions to the panel as a whole. The court asked the panel members whether they could apply the law as given by the court; if they would give greater weight to testimony offered by a police officer; if they had a fixed opinion as to appellant’s guilt; and whether they could be fair. The court also asked if any panel member lacked sufficient command of the English language to enable him to participate, and if any member had a physical or mental disability which would prevent him from performing his duty as a juror.

The court further asked the panel members whether they, a member of their family or a close friend had been the victim of a crime, or was employed in law enforcement; whether they had any religious scruples which prevented them from passing judgment on another; whether they were acquainted with any of the parties or witnesses; whether they could be fair to both the Commonwealth and appellant; and whether they had ever before served on a jury. N.T., 3/8/88, at 18-45.

The court then engaged in individual voir dire of each panel member. The court asked each prospective juror his occupation, the length of time he had been so employed, his marital status, spouse’s occupation, number of children, and children’s ages. The court also inquired where each juror lived and for how long, what level of education he had attained and at what schools. Id. at 45-75. Furthermore, additional questions were asked of any juror who expressed concern with any of the issues posed to the panel as a whole.

At no time did appellant request follow-up questions concerning any prospective juror’s literacy. However, appellant did request further questioning for a number of other reasons. See e.g., N.T., 3/8/88, at 74-80.

The Pennsylvania Supreme Court reiterated the relevant principles governing the examination of veniremen, as set forth in Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983), in Commonwealth v. Ingber, 516 Pa. 2, 6, 531 A.2d 1101, 1103 (1987).

It must be remembered the purpose of the voir dire examination is to provide an opportunity to counsel to assess the qualifications of prospective jurors to serve. It is therefore appropriate to use such an examination to disclose fixed opinions or to expose other reasons for disqualification. Thus the inquiry must be directed at ascertaining whether the venireperson is competent and capable of rendering a fair, impartial and unbiased verdict.

(Citations omitted).

There is nothing in the record to suggest that any of the jurors were unable to understand and communicate. Indeed, appellant fails to identify any incident that would require a critical appraisal of the ability of the jurors who heard his case. Further, even if appellant could show that a disqualified juror sat on his case, he has not identified any prejudice, and we will not, as urged by appellant, “assume prejudice for the sake of ... fairness.” Appellant’s brief at 12. Cf. Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (any claim that jury was not impartial must focus on jurors who ultimately sat); Commonwealth v. Delligatti, 371 Pa.Super. 315, 538 A.2d 34 (1988) (appellant fails to state how court's refusal to conduct individual voir dire prejudiced him); see also United States v. Silverman, 449 F.2d 1341 (2d Cir.1971) (inclusion in panel of a disqualified juror does not require reversal of a conviction unless there is a showing of actual prejudice).

The present case was based almost entirely on oral testimony, and the case involved an assessment of the credibility of witnesses. Even if a juror seated had been unable to read or write, the deliberations of the jury could not have been affected in any significant way. See Bumpus v. Uniroyal Tire Co., 392 F.Supp. 1405 (E.D.Pa.1975).

The scope of voir dire rests in the sound discretion of the trial judge, whose decision will not be reversed absent a gross abuse of discretion. Commonwealth v. Delligatti, supra; Commonwealth v. White, 366 Pa.Super. 538, 531 A.2d 806 (1987). Finding no abuse of discretion in the present case, we reject appellant’s first issue.

Appellant next argues that the trial court precluded him from proffering evidence of prior sexual conduct between appellant and the victim. He alleges that he sought to establish that he had engaged in consensual sexual acts with the victim many times prior to the date in question as well as on that specific date.

The Rape Shield Law, 18 Pa.C.S. § 3104, establishes the procedure to be followed when determining the admissibility of evidence of a victim’s past sexual conduct.

§ 3104. Evidence of victim’s sexual conduct
(a) General rule. — Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings. — A defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).

Appellant asserts that the trial court ruled that evidence of sexual activity only on the date in question was admissible, and this ruling deprived him of a fair trial.

The trial court, in its opinion, states the following concerning this issue.

[T]he defendant misreads the extensive, mostly academic, discussion on the dynamics and operation of the protections intended by the Rape Shield statute. 18 Pa.C.S.A. § 3104. During the discussion the Court posed the question of whether the statute intended to prohibit defendant from popping the question to [the victim] on his mere allegation that he had had prior consensual sexual activity with her even if she would deny it; and, whether, if she denied it, defendant could prove it by independent evidence; whether remoteness of the prior consent is a factor to be considered in its admissibility. N.T. 3/9/88, pp. 3-24. For his part, and more pertinently, as the parties had known one another only for a year, the prosecutor agreed that he would not be objecting to the general question, “Did you have prior consensual intercourse with defendant?” (id., pp. 18-21); contending only that, if she answered in the negative, as he expected her to, the defendant should be precluded from attempting to prove the fact by independent evidence as the trial would then deteriorate to proving a collateral incident. Id. Because of this and defense assertion that the prior consensual sex had occurred on the same day of the incident and that the accusation of rape followed when defendant refused to let her get away with the money she took from his pant’s pocket, (id., pp. 16, 17), the Court made no decision on the other questions discussed.

Trial court opinion at 5. Thus, the court asserts that appellant chose not to question the victim about prior sexual activity with him. We agree.

The Commonwealth contends that the trial court took the position that in any in camera review pursuant to 18 Pa.C.S. § 3104, it would be required to exercise its discretion in weighing the probative value of the proffered testimony and its relevance and admissibility. However, an in camera hearing was not held. The Commonwealth claims that the court reserved any ruling on the admissibility of the evidence, and appellant chose to forego its presentation to the jury.

Our review of the record reveals that the trial court acknowledged its duty under the Rape Shield Law to hold an in camera hearing. N.T., 3/9/88, at 10. The court also acknowledged that prior consensual sex acts between appellant and the victim were admissible. Id. at 11. It is clear, as argued by the Commonwealth, that the court had questions in two areas relevant to this issue: whether appellant’s consent defense was viable in light of the victim’s injury, and whether the court, in the exercise of its discretion, was free to determine 1) if the proffered testimony was relevant and admissible and 2) whether its probative value outweighed its prejudice. Id. at 10, 12, 15. This pretrial discussion was contemplative in nature, and at no time did the court restrict appellant’s evidence. In fact, the discussion concluded with the following exchange.

[Defense Counsel]: Is your Honor’s ruling I’ll be allowed to ask her about prior sexual contact?
The Court: Yes.
[Defense Counsel]: Fine.
The Court: That’s on the representation that he says that they occurred on or about that day, that at least that there was some sex before that day.
[Defense Counsel]: Yes.

We find no support in the record for appellant’s claim that he was precluded from presenting evidence of prior sexual conduct between the parties. In his opening statement to the jury, following the above discussion with the court, counsel for appellant stated, “Lamont Bullock knows Donna Johnson. He’s known her for awhile. He had sex with her before----” N.T., 3/9/88, at 49. Appellant cross-examined the victim about prior contact. Although defense counsel represented to the court that appellant would testify about prior sexual contact with the victim, see id. at 12-13, appellant chose not to take the stand. We conclude, therefore, based upon our review of the record and the applicable law, this issue lacks merit.

Next, appellant argues that the prosecutor impermissibly expressed his opinion concerning the evidence and the witnesses’ credibility in his closing argument to the jury.

We are mindful that a prosecutor must limit his statements to the facts introduced at trial and the legitimate inferences therefrom, Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985) (plurality opinion), and may not inject his personal opinion of a defendant’s credibility into evidence, Commonwealth v. Brawner, 381 Pa.Super. 265, 553 A.2d 458 (1989). However, Commonwealth is afforded reasonable latitude in fairly presenting its version of the case to the jury. Commonwealth v. Upchurch, 355 Pa.Super. 425, 513 A.2d 995 (1986). The Pennsylvania Supreme Court reaffirmed that we must apply the “unavoidable prejudice test as articulated in Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975), in determining the impact of prejudice in closing arguments.

[WJhere the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. Commonwealth v. Crittenton, 326 Pa. 25, 31, 191 A. 358 (1937); Commonwealth v. McHugh, 187 Pa.Super. 568, 577, 145 A.2d 896 (1958). The language must be such that its “unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). See also, Commonwealth v. Meyers, 290 Pa. 573, 139 A. 374 (1927). The effect of such remarks depends upon the atmosphere of the trial, Commonwealth v. Dickerson, 406 Pa. 102, 110, 176 A.2d 421 (1962); Commonwealth v. Del Giorno, 303 Pa. 509, 519, 154 A. 786 (1931), and the proper action to be taken is within the discretion of the trial court. Commonwealth v. Silvis, 445 Pa. 235, 237, 284 A.2d 740 (1971); Commonwealth v. Simon, supra.

Commonwealth v. Johnson, 516 Pa. 527, 532-33, 533 A.2d 994, 997 (1987); see also Commonwealth v. Howard, 875 Pa.Super. 43, 543 A.2d 1169 (1988).

Appellant claims first that the prosecutor repeatedly expressed his personal belief as to the credibility of witnesses. He cites to eight instances where the prosecutor prefaced his comments with “I think” and “one thing’s for sure” and similar characterizations when referring to testimony.

It is clear that the prosecutor was explaining to the jury what he believed the record evidence established. We find no error in such advocacy. See, e.g., Commonwealth v. Todt, 318 Pa.Super. 55, 464 A.2d 1226 (1983) (argument including prosecutor’s thoughts on what the jury could conclude did not require reversal); Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236 (1982) (prosecutor’s argument that “I think I proved to you [the witness] was lying” not reversible error).

Appellant asserts that the most egregious remark by the prosecutor “branded appellant a liar,” appellant’s brief at 21, when he stated to the jury, “Now, I didn’t introduce that [statement] in my case to show you that Lamont was a nice guy. Let me tell you why I introduced it: I’d have to be an idiot to introduce it if I thought it was the truth.” N.T., 3/10/88, at 86.

A reading of the record reveals that the above comment was the Commonwealth’s response to a defense argument which focused primarily upon the credibility of the victim. In closing, defense counsel stated, “[The victim] was caught in a bald-faced lie and there’s no way that she can get out of that,” N.T., 3/10/88, at 10-11; “[The victim’s testimony is] an attempt to explain a lie____ There’s no other way around that,” id. at 12; “You just can’t rely on her testimony____ [S]he’s making this up as she goes along____ She’s willing to say anything now,” id. at 31, 32; “Donna Johnson’s testimony is not trustworthy,” id. at 8.

The Pennsylvania Supreme Court has held that a prosecutor’s remark concerning the credibility of a witness does not constitute reversible error where it is “motivated by, and was commensurate with, the prior attacks upon the credibility of” the Commonwealth’s witnesses. Commonwealth v. Stoltzfus, supra, 462 Pa. at 62, 337 A.2d at 882. Here, the prosecutor was commenting on an issue of credibility which had been initiated by appellant. See also Commonwealth v. Gwaltney, supra.

Similarly, we reject appellant’s claim that the Commonwealth argued facts not in evidence when referring to the testimony of appellant’s mother. At trial, appellant’s mother, called as a prosecution witness, testified on cross-examination that the victim was at the witness’s home earlier on the day of the attack and that she observed the victim exchange something for a small packet from a man on the street corner prior to entering the witness’s home with appellant. N.T., 3/9/88, at 228-56.

On redirect, appellant’s mother admitted that she had not told the prosecutor she had seen the victim in her home earlier that day. Id. at 259. The redirect examination concluded with the following exchange.

[The Commonwealth]: You didn’t tell me anything about that ... did you?
[Appellant’s mother]: I should have said something about it.

N.T., 3/9/88, at 260. In light of the above, we find no error in the prosecutor’s argument to the jury that the witness had failed to tell him about matters she testified to on cross-examination.

Finally, appellant argues that the prosecutor labeled him a Nazi and cautioned the jurors that if they failed to convict appellant, it would be tantamount to the toleration of Nazi atrocities. This claim is based on the following.

I will give you one final analogy and then I will close. There was after World War II a minister who was questioned who was in Germany. By the way, this has nothing to do with the case on its facts, obviously, before [defense counsel] jumps up.
And he was near one of the death camps and they found out that — they had suspected people were dying there and they said to him, why did you not say anything? You were a minister. You were a man of the cloth, God’s servant on earth.
Why did you not say what you knew to be the truth? And he said, well, first they came for the gypsies but I was not a gypsy, so I said nothing. And then they came for the communists but I was not a communist, so I said nothing. And then they came for the Jews but I was not a Jew, so I said nothing. And then they came for me. And there was no one left to speak up for me.
Ladies and gentlemen, we have an obligation as citizens, you have an obligation as jurors, to speak out against injustice when the facts show it to be so. If you avert your eyes to say I do not like that person, I do not like who they are, is to do the greatest injustice of all, threatens all that is important in this society.
If the facts show, as I say they do, that Lamont Bullock committed all these three crimes, you must, regardless of how you feel about the people, say it is so. Thank you.

N.T., 3/10/88, at 98-99.

As stated earlier, the defense closing focused upon the credibility of the victim. The prosecutor did not characterize appellant as a Nazi, but made an analogy based on these facts independent of any mention of appellant. Cf. Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986) (prosecutor’s reference to Adolph Hitler and other “people who do evil” not so inflammatory to have caused jury’s sentencing verdict to be product of passion or prejudice).

While the prosecutor’s analogy may have been intemperate, we do not believe its unavoidable effect was to prejudice the jury. Commonwealth v. Johnson, supra. The trial court continually advised the jury of its duties as a factfinder, N.T., 3/10/88, at 52, 54, and noted that the prosecutor’s arguments were not evidence. Id. at 108-10. Accordingly, we reject this claim of error.

Appellant’s final argument is that he was denied his right to a public trial by the trial court’s refusal to allow spectators to enter or exit the courtroom during the court’s charge to the jury. In response to this claim, the trial court stated:

The doors of the courtroom squeak audibly on opening and closing causing a distraction. We believe we have the duty and discretion to protect the proceeding from interruptions. Commonwealth v. Thomas, 346 Pa.Super. 11, 498 A.2d 1345 (1985); see generally, Commonwealth v. Berrigan, 509 Pa. 118, 501 A.2d 226 (1985) (exclusion of public from voir dire not reversible error); Commonwealth v. Howard, 324 Pa.Super. 443, 471 A.2d 1239 (1984) (exclusion of defendant’s sympathizers within court’s discretion). Moreover, our order did not exclude the public; those that were already inside the courtroom could remain; those that were not were not precluded from entering before the charge. During the charge a court officer was posted outside to admit any member of the public that had immediate business before the Court. The closing of the court was brief and reasonable under the circumstances, far from the hyperbolized complaint that defendant was denied a public trial. The witnesses, defendant’s family and friends and some spectators, as well as the jury, provided the elements of a public trial. The trial remained a public one at all times.

Trial court opinion at 9-10.

Members of the public were free to remain in the courtroom during the court’s charge. Thus, the protections guaranteed by the right to a public trial were not offended, and we reject appellant’s claim.

Judgment of sentence affirmed.

      . The trial court ruled that simple assault merged with IDSI for purposes of sentencing.

      . Testimony at trial established that appellant was a heavy drug user and that the victim occasionally had taken drugs with him at his mother’s house. See Notes of Testimony (“N.T.”), 3/9/88, at 127-28, 241-60. Further, Ms. Johnson testified that at the time of the attack, appellant appeared "high,” and she believed that the prospect of money with which to buy drugs would redirect appellant’s interest in her. Id. at 74.

      . Appellant’s claim that this prosecutorial argument was improper must be viewed in light of his own closing argument, which continually expressed his view of the trial testimony: "She was caught in a bald-faced lie,” N.T., 3/10/88, at 10; “Now this I think is a very important part of her testimony,” id. at 391, “She’s making this up____ And I think you would find that a very curious part of this case,” id. at 32.


source: Caselaw Access Project

author: JOHNSON, Judge: BROSKY, Judge

license: Public Domain

text:
    558 A.2d 542
    COMMONWEALTH of Pennsylvania, Appellant, v. Gary Thomas ALEWINE.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1988.
    Filed March 27, 1989.
    Reargument Denied May 31, 1989.

      Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Com., appellant.
    Wayne V. DeLuca, Pittsburgh, for appellee.
    Before BROSKY, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

The Commonwealth of Pennsylvania appeals from an order granting Gary Thomas Alewine’s motion to suppress the introduction of various gambling devices and paraphernalia into evidence at his trial on three counts of violating 18 Pa.C.S.A. § 5513(a) dealing with gambling devices and gambling. We reverse and remand.

On September 3, 1987 Trooper Andre Stevens entered the Office Lounge, a restaurant and bar owned by Alewine, and played two different poker machines. On both machines the officer achieved a score of forty free games. The barmaid rewarded Stevens for each win by giving him ten dollars. Stevens then observed the barmaid cancel the amount of free games indicated on the machines by use of two different types of “knock off” mechanisms. Stevens then placed a sticker onto the machines to identify these particular poker machines as the machines which he played. On the basis of this information, a search warrant was obtained on September 24, 1987 authorizing the search and seizure of gambling devices and gambling paraphernalia at the Lounge. On the same day a search of the Office Lounge was executed and authorities confiscated two poker machines carrying Stevens’ mark, two unmarked video poker machines, three remote control switches and a cigar box containing money.

Alewine filed an Omnibus Pre-Trial Motion to suppress evidence confiscated at the lounge. On March 25, 1988 the trial court ordered that all evidence seized under the warrant be suppressed because the information upon which the search warrant was granted was stale. This appeal follows.

The Commonwealth raises the following arguments on appeal:

I. WHETHER THE COURT ERRED IN SUPPRESSING THE EVIDENCE ON THE GROUNDS THAT THE INFORMATION SET FORTH IN THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT WAS TOO STALE TO PROVIDE PROBABLE CAUSE?
II. WHETHER THE EXCLUSIONARY RULE SHOULD NOT APPLY BECAUSE THE POLICE IN EXECUTING THE SEARCH WARRANT WERE ACTING IN GOOD FAITH RELIANCE UPON AN ASSESSMENT OF PROBABLE CAUSE BY A NEUTRAL MAGISTRATE?

Review of a suppression order is limited to pure questions of law. Commonwealth v. Hamlin, 503 Pa. 210, 214, 469 A.2d 137, 139 (1983). When determining whether the trial court has misapplied the law, we must accept as true the findings of the trial court reasonably supported by the record, considering only that evidence presented by the defendant’s witnesses and so much of the evidence of the prosecution that is fairly read into the context of the case as a whole and is uncontradicted. Id.

The existence of probable cause is determined by a consideration of all circumstances including the reliability of the proffered information, and the probability that the evidence sought will be found in the place to be searched. Commonwealth v. Weidenmoyer, 518 Pa.Super. 2, 7-9, 539 A.2d 1291, 1294 (1988). In particular, the chief factors to consider when determining whether the information supporting the issuance of a warrant has grown stale are the quality and nature of the seized evidence, the ease with which the evidence may be disposed of, and the lapse of time between the information and the warrant. Commonwealth v. Klimkowicz, 331 Pa.Super. 75, 81, 479 A.2d 1086, 1089 (1984). Other considerations may be:

the character of the crime (chance encounter in the night or regenerating “conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc.

W. LaFave, “Search and Seizure” § 3.7(a) p. 77 (2d ed. 1987) quoting Andresen v. State, 24 Md.App. 128, 331 A.2d. 78 (1975), aff'd sub nom. Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627. The continuity of the illegal scheme may be established by the inherent nature of the criminal activity itself or evidence that the activity has extended over a period of time. LaFave, supra at § 3.7(a) p. 81.

In the case before us, the trial court granted Alewine’s motion to suppress evidence confiscated at his establishment on the basis that there was no reason to believe that the gambling observed by Stevens was an on going activity. Moreover, the court concluded that “[t]here is nothing inherently illegal about playing video machines. Rather, it is receiving payment for play that converts otherwise harmless conduct into criminal activity.” Opinion, August 9, 1988 at 4. We find that the trial court has failed to perceive the importance of the fact that there was reason to believe that Alewine was in possession of a per se gambling device and not just that he was suspected of permitting gambling activity on the premises.

18 Pa.C.S.A. § 5513(a)(1) which makes the knowing possession of a gambling device illegal, provides:

(a) Offense defined. A person is guilty of a misdemeanor of the first degree if he:
(1) intentionally or knowingly makes, assembles, sets up, maintains, sells, lends, leases, gives away, or offers for sale, loan, lease or gift, any punch board, drawing card, slot machine or any device to be used for gambling purposes, except playing cards;

Further, our supreme court has determined that machines possessing the qualities of “consideration”, “chance”, and “reward” are so intrinsically connected to gambling as to be gambling devices per se. Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 194, 465 A.2d 973, 977 (1983). Therefore, in order to establish probable cause for a warrant on September 24, 1988, it was unnecessary for the Commonwealth to show that there was reason to believe that the poker machines were continuously used for gambling, but rather, the Commonwealth only needed to show that there was reason to believe that Alewine continued to be in possession of a per se gambling device, as this, in and of itself, was illegal.

The knock off device found on two of the gambling machines in question provided sufficient information for a reasonable person to believe that the machines which Stevens played were per se gambling devices, and therefore subject to confiscation pursuant to 18 Pa.S.C.A. § 5513. Commonwealth v. Dumont, 370 Pa.Super. 155, 536 A.2d 342 (1987). Accordingly, all that was left to be shown by the Commonwealth upon request for the warrant was a reasonable belief that Alewine was still in possession of the video poker machines on September 24, 1987, some twenty-one days later. We find that sufficient information was provided to lead one to believe that the machines would be present in the Office Lounge three weeks after they were observed.

The information proffered to support probable cause must be considered using a “commonsense, nontechnical, ungrudging and positive” approach. Commonwealth v. Jones, 506 Pa. 262, 269, 484 A.2d 1383, 1387 (1984). First, we point out that although Stevens tested only two machines, he observed four floor model poker machines present in the establishment, presumably of substantial size and not easily moved. Second, Stevens’ affidavit suggested that the machines in question were in open view and easily accessible to patrons of the Office Lounge. Third, the barmaid appeared to routinely make “payoffs”. When officer Stevens won the video game, the barmaid wrote his name on a cash register receipt and placed it under the register. She then pushed a button on the register, causing the register display to read “poker pay-off” and causing to be released a drawer from which she drew a transmitter. The barmaid then used the transmitter to cancel the free games Stevens had accumulated on the poker machine. All of these facts suggest that the video poker machines were a fixture of the establishment, used by the owner to attract customers and entertain them while they patronized the lounge.

Given the apparent size of the poker machines at issue, and that the poker machines were an attraction of the Office Lounge itself, we find that it was reasonable to believe that the machines would continue to be present at the establishment three weeks after they were observed. As a result of our determination, we do not reach the Commonwealth’s issue II, relating to the good faith exception to the exclusionary rule. Accordingly, we reverse the order of the trial court and remand for further proceedings.

Order reversed. Case remanded. Jurisdiction relinquished.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge

dissenting:

I respectfully dissent. The overriding and governing standard for searches and seizures under the Fourth Amendment is reasonableness. A whole body of case law on every level and in every forum has been devoted to establishing what constitutes a reasonable search and seizure.. One premise which has evolved mandates that warrants not issue on stale information. In the present case I don’t believe anyone would question that the information in the affidavit of probable cause was sufficient to allow the issuance of a warrant on September 3, 1987. However, I have substantial doubt that the information was sufficient on September 24, 1987.

The magistrate is empowered to issue a search warrant only where the information contained in the affidavit establishes a probable cause to believe that evidence of illegal activity, or perhaps contraband, will be found in the area to be searched. Our cases have consistently insisted that the facts establishing probable cause be closely related in time to the issuance of a warrant. Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973). The reason for insistence on such a position is that, the closer the proximity in time, the more probable the cause to believe the evidence sought will be found, and, thus, the more reasonable the search-intrusion is. Our cases have also reflected a position that probable cause will be lacking if the information is not too proximate to the date of application or if it is otherwise stale. Id.

One accepted route to prevent the information in the affidavit from becoming stale is to establish an ongoing illegal activity. If such is shown the mere fact that key information in the affidavit refers to events occurring several weeks before will not obviate a finding of probable cause. Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971). Such a course could have been taken here with little difficulty. However, it was not, and the suppression court, relying primarily on this absence, found probable cause lacking. The Commonwealth does not contest the suppression court’s finding in this regard, but argues that, because there was reason to believe that appellant was in possession of an illegal gambling device, one that was per se illegal to possess, it was not necessary to establish continuing illegal activity. However, I am unconvinced that the search and seizure was based upon a proper showing of probable cause.

Due to the staleness of the information and a lack of evidence supporting an ongoing operation or activity, the probable cause is suspect in this regard. As such, the Commonwealth cannot rely upon such an assertion or inference of gambling activity to support probable cause. Instead, they argue, they had probable cause to believe that the two machines the officer played were per se gambling devices which, without more, were subject to seizure. Note that the officer was unable to confirm with certainty that the machines possessed all the necessary qualities to be classified as per se gambling devices. However, they assert, there was probable cause to believe the machines possessed all the necessary qualities. Furthermore, and very important to their argument, they assert this type of probable cause can never be stale because if the machines are illegal machines they cannot regain legality.

Assuming appellant’s position is well founded, one must question the proper scope of the warrant and thus the search and seizure. Does the fact that there is probable cause to believe two video poker machines are per se illegal create probable cause or justification to seize all other so called gambling paraphernalia, or must the scope of the search and seizure be limited to the two machines in question?

Alternatively, if there is a lack of probable cause to believe there is an ongoing gambling business involved and if there is no information regarding the other machines, do they somehow become subject to seizure? Are they guilty by association? Perhaps more importantly, and this may be the real issue here, can the Commonwealth “bootstrap” their way around a failure to establish a continuing or ongoing gambling operation by asserting that machines are per se illegal, thus allowing them to gain entrance and authority to seize not only the two machines, but also any evidence of an ongoing gambling business? To the extent probable cause is lacking as to an ongoing gambling business, and existed only as to the two machines, the Commonwealth cannot assert that their intent was only to seize the two machines, for examination of the affidavit belies an assertion that the purpose of the search was limited to seizing the two per se illegal gambling devices.

In fact, the Commonwealth appears to acknowledge the rather tenuous nature of arguing that probable cause exist ed as to all the machines. They state in their brief:

The affidavit for the search warrant refers to all four video poker machines on the premises of the Office Lounge. The Commonwealth recognizes that it stretches the concept of probable cause to the verge of “guilt by association” to argue that probable cause to search for and to seize the other two machines as gambling devices per se was established merely by their proximity to the one known to be gambling devices.

(N. 2, appellant’s brief, p. 10). Rather, the affidavit was drafted so as to allege a gambling operation, and sought seizure of essentially all evidence of such gambling operation and gambling paraphernalia and devices. The Commonwealth failed to apply for the warrant in timely fashion and also failed to cure this defect by gaining additional information showing that the gambling activity was continuing. As such, it is questionable that probable cause existed at the time of issuance. And, of course, it goes without citation that probable cause must be judged based upon the facts contained in the affidavit, and cannot be provided by consideration of the evidence ultimately seized. The Commonwealth’s argument regarding per se illegal gambling devices appears, to me anyways, to have been fashioned only in retrospect after a problem with staleness and probable cause was perceived. I don’t believe this position taken after the fact can cure the lack of probable cause that existed at the time of issuance.

Assuming further that there existed probable cause to believe the machines were illegal gambling devices and subject to seizure, this does not automatically provide probable cause to believe these two machines would be found in the search. I believe the Commonwealth’s and majority position that there was probable cause to believe the machines were per se illegal can refer only to the particular two machines played by the officer. The Commonwealth apparently would not contend that probable cause extended beyond the two machines actually played by the officer as evidenced in their commentary about “guilt by association”. To the extent it is stretching the concept of probable cause to assert that cause existed to seize the other two machines seen at the Office Lounge, it would seem likewise stretching that concept to assert that cause existed to search and seize any machines acquired between the time of surveillance and execution of the warrant. The question then becomes, and it relates to the safeguards of the time proximity requirement, was there was probable cause to believe the same two identified machines would be on the premises three weeks after their identification?

The majority argues that it was reasonable to conclude from the circumstances and trappings of the Office Lounge that video poker machines were a regular fixture or part of the decor there. From this fact, and the fact that the machines are relatively large, they assert, it could be reasonably presumed the machines would still be there upon execution of the warrant. I am unconvinced that this is the case. Even assuming that video poker machines were a regular fixture of the Office Lounge there was no guarantee that the two identified machines would still be there. Such video games, despite their size, I believe, are often rotated from location to location if for no other reason than to provide some variety to patrons. There is no indication in the affidavit as to whether the machines were owned by the Office Lounge or owned by someone else and leased to the lounge. Further, there is no indication as to how long these two particular machines had been at the Office Lounge. These are factors which could have a substantial bearing on the likelihood that the same two machines would be present upon execution of the warrant.

Further, to the extent we can assume the machines were there to provide revenue to the owner of the business, it is possible the machines would be replaced by others proven to bring in greater revenue, or replaced with perfectly legitimate coin operated machines which also happen to be pulling in a lot of money. Three weeks is a sufficient amount of time for the machines to be removed from the premises in the ordinary course of business. As stated by our Supreme Court in Commonwealth v. McCants, 450 Pa. 245, 299 A.2d 283, 286 (1973):

In Shaw this court recognized that the facts and circumstances justifying a determination that probable cause exists may quickly change. This is not to say that the facts and circumstances are so fleeting that they always change. There are times when the facts and circumstance presented to the magistrate remain unchanged long after the warrant is issued. However, once it is recognized that it is possible for the facts and circumstances to change with the passing of time, a redetermination of probable cause is constitutionally required.

(Emphasis in original). I believe there was a definite possibility that the machines in question would be moved in the intervening three weeks, and, thus, I feel the staleness issue has not been sufficiently steered around by the arguments of the Commonwealth or the majority.

Finally, as indicated earlier, the overriding principle of search and seizure relates to reasonableness. Thus, I believe some inquiry of the reasonableness of the need to rely upon stale information is also required. What strikes me as peculiar regarding the reliance upon stale information in this case is the fact that the staleness could have been remedied with relative ease. There was apparently no particular legitimate reason that the presence of the machines in question at the Office Lounge could not have been confirmed by a quick stop there at a time considerably more proximate to the application for a search warrant. As the suppression court noted, the Office Lounge is relatively close in distance to the issuing magistrate’s office.

Consequently, the presence of the illegal machines could have been confirmed with relative ease. Furthermore, assuming the Commonwealth’s position is meritorious, the investigating officer would have needed to do no more than confirm that the previously identified machines were still present. It would have been unnecessary to again play them and receive payment. As such, I believe under the totality of the circumstances the search was unreasonable, and I would affirm the order of the suppression court.


author: TAMILIA, Judge: CIRILLO, President Judge, BROSKY, Judge,

text:
      558 A.2d 548

    COMMONWEALTH of Pennsylvania ex rel. William M. COBURN v. Diane M. COBURN. Appeal of William H. COBURN.
    Superior Court of Pennsylvania.
    Argued Dec. 20, 1988.
    Filed May 3, 1989.

      Diane M. Zabowski, Collegeville, for appellant.
    Leon H. Fox, Jr., Norristown, for appellee.
    Before CIRILLO, President Judge, and BROSKY, McEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   TAMILIA, Judge:

Appellant William M. Coburn initiated this action by filing a petition for contempt of an agreed custody Order against appellee Diane M. Edinger, formally Diane Coburn, seeking to enforce his rights under the Order. “ After a hearing and in consideration of appellee’s new matter claim that appellant is not the biological father of appellee’s youngest daughter, the trial court entered an Order on April 20, 1987 directing appellee, the child, and the putative father to submit to blood tests for the purpose of establishing the paternity of the child — the Order did not direct appellant to submit to a blood test. Appellant appeals from this Order.

The parties were married on June 15, 1974 and divorced on August 2, 1979. Two children were born during their marriage: Jennifer Leah Coburn, born May 18, 1975, and Angie Lee Coburn, born August 7, 1976. Since their divorce, appellee has remarried to Ronald Edinger.

On October 15, 1979, the parties entered into an agreed custody Order whereby appellee retained physical custody of the children and appellant was permitted regular visitation consisting of alternating weekends from 12:00 p.m. Saturday to 6:00 p.m. Sunday, with one week summer vacation and holiday visitation on an annually alternating basis from 10:00 a.m. to 6:00 p.m. for New Year’s Day, Easter, Memorial Day, Fourth of July, Labor Day, and Thanksgiving and with Christmas Day visitation from 1:00 p.m. to 6:00 p.m. A contemporaneous Order for the payment of child support was also entered. Appellee’s admissions in her answer to appellant’s petition for contempt indicate that in December, 1982 the parties agreed to an informal modification of the visitation schedule, allowing appellant increased rights consisting of alternating weekends from 5:30 p.m. Friday to 6:00 p.m. Sunday with two consecutive weeks summer vacation and the same holiday visitation previously ordered. Both the custody arrangement and support Order were substantially complied with until February, 1987. In February, 1987, appellee told both children appellant was not the natural father of Angie Lee and she refused to allow appellant further visitation with Angie Lee, on the basis that he was not her biological father. In response, appellant filed a contempt petition on March 17, 1987, alleging appellee was in violation of the agreed custody Order.

A hearing on the contempt petition was scheduled on April 20, 1987, and on that date, appellee filed an answer and new matter averring appellant was not Angie Lee’s biological father and requesting the court to order appellant to submit to a blood test to determine the paternity of Angie Lee. At the hearing, appellee presented the testimony of the putative father, Thomas Schwartz, Jr., who stated he was the biological father, indicated his willingness to accept the legal and financial responsibilities of paternity, and agreed to submit to blood testing. Appellee, on behalf of herself and Angie Lee, also consented to such testing, however, appellant refused. At the conclusion of the hearing, the trial court entered an Order, pursuant to 42 Pa.C.S. § 6133, directing that red cell typing and Human Leucocyte Antigen (“HLA”) testing be performed on the putative father, appellee and child. This appeal followed. Requests for stay of the blood test Order were denied by both the trial court and the Superior Court, and the blood tests were completed, indicating a 99.97 per cent probability that Schwartz is the biological father of Angie Lee. In light of these results, the trial court dismissed the petition for contempt on May 22, 1987, without holding further hearings.

A number of issues are presented by this appeal, not the least of which is its propriety. Complicating this issue is the fact that appellant’s contempt proceeding has taken on the posture of a custody proceeding due to the new matter claim of paternity raised by appellee. Further, appellant did not raise prior to this appeal his substantive issue of whether appellee has waived or is precluded from raising any objection to appellant being Angie Lee’s father under grounds of res judiciata, collateral estoppel and equitable estoppel.

In the past we have found interlocutory Orders concerning blood testing appealable, Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 303, n. 3, 472 A.2d 1128, 1130, n. 3 (1984); Commonwealth ex rel. Hall v. Hall, 215 Pa.Super. 24, 257 A.2d 269 (1969); Commonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963), and we find the same circumstances call for allowance of this appeal. Additionally, under these circumstances we find appellant’s failure to raise his issues of estoppel and res judicata before the trial court does not preclude his ability to present those claims on appeal. Appellant filed his petition for contempt on March 17, 1987 and did not receive appellee’s answer until the day of the hearing on the petition. The answer was filed at 9:27 a.m. on the day of the hearing and was not accompanied by a certificate of service indicating if, or when, appellant was served with the answer. This supports appellant’s contention that he received the answer minutes before the hearing. Pennsylvania Rule of Civil Procedure 1915.12, governing the procedure for contempt of a custody Order, specifically provides in subsection (c), “[n]o answer to the petition shall be required.” The rule’s explanatory note indicates that custody contempt pleadings are purposely kept to a minimum in order to insure a quick resolution of the matter: “Rule 1915.12 provides a streamlined contempt procedure____ The defendant is not required to answer the petition and he is given a period of at least seven days in which to defend.” The rules neither require an answer to a contempt petition nor a response to new matter raised in an answer filed.

We find no merit to appellee’s claims that appellant’s issues are waived for failure to raise them in post-trial motions, because “exceptions are not required in a child custody case.” In re Custody of Frank, 283 Pa.Super. 229, 233, 423 A.2d 1229, 1232 (1980); see Pa.R.C.P. 1915.10(b) (“No Motion for Post-Trial Relief may be filed to an order of custody, partial custody or visitation.”). Appellant did raise his issues concerning estoppel and res judicata in his statement of matters complained of on appeal and the trial court addressed them in its Opinion.

The situation presented by this case poses more than one factual twist to the normal scenario involving a paternal blood test. Instead of having a putative father initiating a custody proceeding or a former spouse denying paternity in an effort to avoid paternal obligations, we are faced with a father of a ten year old girl trying to enforce his long held and used custody and visitation rights against his former spouse and mother of the child, who has raised a defense that the father is not the actual biological father of the child. The wisdom and motivations behind appellee’s revelation to her children are certainly questionable. What is more apparent is the effects of her actions must be dealt with in a manner which, first and foremost, best serves the child’s best interest and the parties’ interests to whatever extent is possible.

The trial court ordered the blood tests on the basis of the putative father’s testimony that he is the father and on authority of section 6133 of the Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S. §§ 6131 et seq., which states:

§ 6133. Authority for test
In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require.

42 Pa.C.S. § 6133. Under section 6133 the trial court has the authority to order tests if “paternity, parentage or identity of a child is a relevant fact.” However, paternity is only a “relevant fact” when paternity has not been established either by consent or order in a prior proceeding. Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988); Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987). Accordingly, although paternity is relevant in a custody dispute such as this one, Mrs. Coburn is collaterally es-topped from raising any question concerning paternity because of the prior custody/support Orders which have determined paternity as a matter of law. Therefore, blood testing under the Act is inappropriate.

There is a strong presumption of legitimacy in Pennsylvania. Manfredi Estate, 399 Pa. 285, 289, 159 A.2d 697, 699 (1960); Connell v. Connell, 329 Pa.Super. 1, 6, 477 A.2d 872, 875 (1984); Burston v. Dodson, 257 Pa.Super. 1, 13, 390 A.2d 216, 222 (1978). In this case, the presumption is bolstered by the parties’ actions. Appellee willfully accepted the agreed support and custody Orders entered into following the parties’ divorce and under the doctrine of collateral estoppel she is precluded from denying appellant’s paternity. In Schultz v. Connelly, 378 Pa.Super. 98, 548 A.2d 294 (1988), we applied the doctrine to deny a father’s petition to vacate an agreed support Order:

[A] plea of collateral estoppel is valid if, 1) the issue decided in the prior adjudication was identical with the one presented in the later action, 2) there was a final judgment on the merits, 3) the party against whom the plea is asserted was a party ... to the prior adjudication, and 4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in ... question in a prior action.

Id., 378 Pa.Superior Ct. at 102, 548 A.2d at 296 (quoting Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 237, 464 A.2d 1313, 1319 (1983); citations omitted).

Identity of issue was met when appellee agreed to the 1979 support and custody Orders, thus, acknowledging appellant was the father of the child. An Order for support necessarily determines the issue of paternity and absent an appeal taken directly from the Order or a showing of fraud, the issue of paternity is established as a matter of law and cannot be challenged by an aggrieved party in a subsequent proceeding. Wachter, supra; Schultz, supra; Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353 (1986). The same can be said for entry of a custody Order, Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988), which also demands a determination of paternity prior to entry when the basis of the claim is parental in nature. As we stated in Seger:

If a father’s conduct works an estoppel on his assertion of non-paternity in a support matter, there is no principle in law which would prevent the same application to a case, such as here, where the mother informs the father he is responsible for the pregnancy, marries him, assigns paternity to him on the birth certificate, permits him to support the child and assume the parental duties for years, and only upon separation repudiates his paternity.

Id., 377 Pa.Superior Ct. at 397, 547 A.2d at 427. In Seger, the former-husband/father brought a contempt petition to enforce a prior custody Order and we reversed the trial court’s determination that because the father was shown not to be the biological father, he had no legal standing to custody rights. We held in Seger that the mother was estopped to disprove the paternity of the father because of her past actions of openly accepting him as the father and his past support and acceptance of the child. Here, appellant’s claim for custody has always been based on his status of father of both daughters and the prior actions of both parties support this.

By failing to appeal the 1979 Orders, the finality of the determination of paternity has been decided on the merits. Paternity is a circumstance that cannot change nor be used as a changed circumstance in a modification proceeding. Schultz, supra; Chrzanowski, supra. The third requirement of estoppel of identity of parties is readily met in this case because appellee was a willful party to the 1979 Orders.

Lastly, the voluntariness of the agreed Order, followed by an agreed modification of appellant’s visitation rights, indicates appellee’s decision not to litigate the issue of paternity in the prior proceeding incident to the parties’ divorce. Appellee’s failure to object to paternity at that time does not negate the full and fair opportunity to litigate that was present. Appellee has not and can not raise any claim to fraud in this matter.

From this we find appellee is estopped from raising the issue of appellant’s paternity. Therefore, in this contempt proceeding between appellant and appellee paternity is not a “relevant fact” under 42 Pa.C.S. § 6138, because it cannot be placed into issue by either party. The trial court’s decision to institute blood tests was inappropriate under these circumstances because paternity was not at issue at the contempt hearing. Only enforcement of the custody Order was at issue during the contempt proceeding. The testimony by the putative father, Schwartz, at the hearing was inappropriate and did not justify a blood test in connection with that proceeding because he was not a party to the contempt petition. We point out that the putative father’s testimony was weak and inconclusive with no detail as to opportunity or even reference to sexual intercourse; it was a simple affirmation that he is the biological father (N.T. 2/20/87, pp. 4-7). Because the putative father is not a party to this action, the blood test need not be ordered on his behalf as we found was necessary in John M. v. Paula T., 377 Pa.Super. 72, 546 A.2d 1162 (1988) (action by putative father to enforce visitation rights and requesting blood tests to prove his paternity). Even should Schwartz bring his own petition for custody and prove his paternity, this would have no effect on appellant’s right to custody due to appellant’s existing relationship which is beneficial to the best interest of the child.

In Seger we illustrated that the best interests of the child sometimes require that a non-biological parent or stepparent, who has nurtured the child and developed a loving relationship, must be given custody and/or visitation rights even though his relationship with the natural mother may have ended. The mental well-being of the child dictates the necessity for the relationship to continue. No case for such a continuance of the relationship could be stronger than appellant’s. Angie Lee was born during the marriage and three years prior to the divorce. Appellant enjoyed seven and one-half years of uninterrupted visitation and partial custody following the divorce. Therefore, for a period of ten and one-half years appellant developed, without any question of paternity, a relationship with his daughter. Such a relationship cannot be curtailed simply because of a finding that appellant is not in fact the natural father. Appellant has assumed the relationship of father and has shown no intention to relinquish the responsibilities this entails. As in Seger, it cannot be in the best interests of the child to have this relationship cut off simply because there is no biological tie between them. Therefore, we find partial custody and visitation to be appropriate. In this era of artificial insemination, surrogate parenting and in-vitro fertilization, legal rights of a non-biological parent may become fixed by virtue of the parties’ actions and the developmental relationship of the child with the parent. To permit one parent to revoke the parentage of the other parent, once those rights have been legally determined, in the absence of fraud, by invoking a blood test, invites chaos to the child’s emotional well-being and legal status.

We reverse and remand to the trial court for entry of an Order consistent with this Opinion. In addition to determining whether appellee should be held in contempt and whether an Order directing compliance is necessary, we direct the trial court to examine appellant’s March 17, 1987 petition for modification of visitation schedule, which was filed contemporaneously to the contempt petition by appellant to enforce the parties’ informal agreed modification of the 1979 custody Order. Jurisdiction relinquished.

CIRILLO, President Judge, files a concurring statement.

BROSKY, J., files a concurring opinion.

CIRILLO, President Judge,

concurring:

While I am in agreement with the majority’s finding that the trial court improperly dismissed appellant’s contempt petition on the basis of the blood test results, I write separately to note my concern with the majority's position that a blood test, instituted by one parent to revoke the parentage of another parent, even after those rights have been legally determined, necessarily “invites chaos to the child’s emotional well-being and legal status.” On the contrary, I can envision numerous instances where such a test would provide crucial data for a child’s well-being and continued mental and physical health.

Since Dr. Karl Landsteiner’s discovery of the ABO blood groupings in 1901, medical science has progressively refined the data that can be obtained through blood analysis. While facilitating the first safe transfusions of blood, Dr. Landsteiner’s discoveries also opened the door to genetic research. See Polesky and Lentz, Parentage Testing: An Interface Between Medicine and Law, 60 N.D.L.Rev. 727, 730 (1984). It was the application of noted geneticist Gregor Mendel’s “inheritance factors,” coupled with the advancement of modern biomedical research, which led to the institution of genetic counselling and screening to determine the chances of contracting certain diseases, or passing them on to one’s offspring. See President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Screening and Counseling for Genetic Conditions, 9-39 (1983). Because of this continually advancing medical technology, the knowledge of one’s filiation has become of paramount importance in diagnosing and treating potentially life-threatening disorders, as well as in forecasting the probabilities of latent genetic disorders appearing in the later years of one’s life.

Until the early 1970s, blood grouping, and in particular human leukocyte antigen (HLA) testing, was used predominately to determine donor recipient compatibility in organ transplants and hereditary disease research. Now, it is revolutionizing determinations of the identity of a child’s father in paternity cases, and, in my opinion, providing critical information for purposes other than custody, support, or visitation.

Through the knowledge of one’s hereditary history, as well as the institution of genetic “carrier screening,” it is possible to detect various recessive, and often asymptomatic, diseases that may have been passed on through generations of familial lines. A partial list of these diseases includes Tay-Sachs (a disease causing progressive neurological abnormalities with the onset often seen in late infancy and death occurring within three to four years); sickle cell anemia (a hemoglobin disorder occurring predominantly in the black community); Cooley’s anemia (a blood disorder similar to sickle-cell anemia); muscular dystrophy (a disease causing progressive muscular weakness with the onset often seen in late childhood years); hypercholesterolemia (a disease causing high serum cholesterol levels in the third or fourth decade of life); cystic fibrosis (a disease which often secondarily affects the lungs, pancreas, and liver); hemophilia A and B (blood diseases manifested by recurrent hemorrhaging); Huntington chorea (a progressively disabling disease with an onset in the fourth decade of life and death within ten to twelve years from the onset); congenital adrenal hyperplasis (a disease affecting the male and female reproductive system and diagnosed through HLA lineage studies); Ehlers-Danlos syndrome (a skin disorder which is manifested by hyperelastic skin and vascular fragility); Friedreich’s ataxia (a progressively disabling muscular disease causing one to be bound to a wheelchair during the second decade of life, and death in the third decade); galactosaemia (a digestive disease causing weight loss, jaundice, cataracts and occasionally mental retardation); gaucher disease (a bone disease occurring predominantly in Ashkenazic Jews); Wilson’s disease (a disease manifested by defective copper metabolism which often causes chronic active hepatitis); phenylketonuria (a disease marked by elevated blood and urine phenylalanine which can cause mental retardation if untreated); and xeroderma pigmentosum (a skin disease manifested by the inability to repair damage after exposure to ultraviolet light). See generally J.M. Connor & M.A. Ferguson-Smith, Essential Medical Genetics 182-201 (1984). As this partial list demonstrates, there are a host of genetic disorders, passed on by one’s biological parents, that can either appear in the later years of life, or be passed unwittingly to one’s children. In both scenarios, the knowledge of one’s biological parents and hereditary history is crucial in ordering one’s affairs and making life’s decisions.

Perhaps the most telling example of the importance of knowing one’s lineage can be seen in the current national focus on the prevention of heart disease. As mentioned above, high blood cholesterol is a disorder which is genetically linked. Studies have indicated that children of parents with hypercholesterolemia demonstrate a proclivity for the same disorder, often beginning at a very young age. Consequently, physicians have found it necessary to place children, as young as six or seven, on severely restricted diets in order to avert complications from high blood cholesterol. Since this particular affliction is rarely monitored until the later years of life, the importance of knowing family history, for purposes of early detection, becomes evident.

Aside from facilitating the discovery of one’s genetic history, HLA testing which conclusively establishes the identity of one’s natural parent also provides a child with the knowledge of an available source for organ donation in the event of emergency. Frequently, parents or biological brothers and sisters are called upon for donation of kidneys, lungs and other essential organs. Organs donated by family members carrying the same blood type and genetic bond are considerably less susceptible to rejection by the donee’s immune systems. So important is the medical information that can be garnered from one’s natural parents, that our legislature expressly provided for the disclosure of medical history information to an adopted child’s parents or their physician from the adoptee’s natural parents. See 23 Pa. C.S. § 2909.

Finally, a determination of one’s biological parents carries with it legal implications for purposes of inheritance. In addressing the interests of a child born out of wedlock, the United States Supreme Court recognized that:

The child bom out of wedlock, ... has an interest in knowing his father and in having two parents to provide and care for him. The child’s concerns include a known belonging to a certain line of descent with knowledge of any benefits or detriments inheritable from that line.

Rivera v. Minnich, 483 U.S. 574, 576, n. 2, 107 S.Ct. 3001, 3003, n. 2, 97 L.Ed.2d 473, 478 n. 2 (1987) (quoting Minnich v. Rivera, 509 Pa. 588, 594, 506 A.2d 879, 882 (1986)). This same reasoning can be applied, in my opinion, to cases of disputed parentage. Even in cases where the “equitable father” holds himself out as the child’s parent, and by authority of a court order raises the child as his own, that child may be, at some point in time, entitled to inheritance as a surviving heir of his or her biological father’s estate.

The various circumstances presented above militate one conclusion: there are several instances where “paternity, parentage or identity of a child is a relevant fact,” and HLA blood tests should be ordered even though a party is traditionally estopped from presenting the issue or have had paternity already decided on the merits. In these situations, I believe that the court should, in the best interests of the child, order tests to ascertain the identity of the biological father. The overriding interests of the child in definitively knowing his or her biological genesis far outweighs the harm that may stem from the revelation. See Pa.R.C.P. 4010(a); see also John M. v. Paula T., 377 Pa.Super. 72, 80, 546 A.2d 1162, 1167 (1988) (the “good cause” requirement of Rule 4010(a) is “a limitation upon the right to compel a litigant to submit to the [blood] test[,] ... [and] entails more than mere relevancy.”) More importantly, I believe that knowledge of genetic factors that may shorten or reduce the quality of life become important considerations in charting the summer and autumn years of one’s life.

In sum, although I agree with the distinguished trial judge’s statement that “it is Angie’s right to know who her [biological] father is,” I am compelled to disagree with his conclusion that appellant’s contempt petition should be denied because of the results of the HLA tests. Even though I am suggesting that HLA tests may be warranted in such situations, their use would necessarily be limited to health and inheritance concerns, and not for the reversal of a prior validly obtained paternity determination.

Because of the reasons outlined above, I respectfully concur with the majority’s disposition of appellant’s claims.

BROSKY, Judge,

concurring:

I am constrained to concur in the result reached by the majority, although I recognize we are bound to do so under present law.

I write separately, however, to express my concern over the possible ramifications that the current law may produce. In a day and age when scientific knowledge has risen to the level where the identity of a child’s biological father can be determined with an accuracy level of 99.7%, I question the wisdom, in a case such as this, of denying the child the right to know her father.

In Pennsylvania we have a line of cases, as discussed by the majority, which hold that a party is estopped from questioning paternity once paternity has been established either by consent or order. See Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988); Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987); Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1983); Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 369 A.2d 416 (1976); Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 384 A.2d 1285 (1978); Commonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963); Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962).

The rationale behind this rule, as expressed in Commonwealth ex rel. Gonzalez v. Andreas, supra, is as follows:

Absent any overriding equities in favor of the putative father such as fraud, the law cannot permit a party to renounce even an assumed duty of parentage when by doing so, the innocent child would be victimized.

369 A.2d at 419. This concern over the possible victimization of the child is understandable in the great majority of cases. There is the possibility that the child would be deprived of a father’s support, both emotionally and financially, should his paternity be questioned and/or disproven.

Instantly, however, we have the unusual circumstance of not one, but two, men vying for the right to be considered the “father” of this little girl. Both express a willingness to support her and to take his “proper” place in her life. While I recognize the importance of maintaining consistency in the child’s life, and I fully respect the relationship cultivated by appellant and the child throughout her lifetime, I must point out that the actions on the part of appellee have already disrupted this little girl’s life. She has been deprived of time spent with the only man she has recognized as her father and, there has been mention of the fact that the child’s reaction has been so negative that she herself no longer wishes to see appellant Therefore, in my opinion, the “victimization” of the child has already taken place.

It now remains for the court to return some semblance of order to the child’s already shattered life. In so doing, I believe that the Court should examine any and all evidence which could aid it in this difficult task. If indeed, the biological father can be determined and is ready to assume his responsibility, then I believe there should be a departure from existing law which precludes him from being considered because of a “legal fiction” whose purpose may, in this case, not be valid.

      . Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978.

      . Section 6132 of the Act, 42 Pa.C.S. § 6132, states the subchapter applies to all civil matters and certain enumerated criminal matters. See In re Adoption of Young, 469 Pa. 141, 149, 364 A.2d 1307, 1312-13 (1976), where our Supreme Court recognized paternity is a relevant fact in a termination of parental rights action, but held the mother was estopped from raising the question of paternity and, therefore, blood testing was inappropriate.

      . Since on its facts this case is totally dissimilar to John M. v. Paula T., 377 Pa.Super. 72, 546 A.2d 1162 (1988), and the issue present in that case is not before us, we wish to make it clear we are not speaking with approbation of the panel decision in Paula T.

      . See Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987) (concerning the custodial rights of a third party non-parent); Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977) (concerning stepparent rights to child custody/visitation).