author: POPOVICH, Judge: CIRILLO, Judge,

text:
    617 A.2d 718
    COMMONWEALTH of Pennsylvania, Appellant, v. Alberto PLEUMMER, Appellee.
    Superior Court of Pennsylvania.
    Argued May 28, 1992.
    Filed Oct. 30, 1992.
    Reargument Denied Jan. 6, 1993.

      Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.
    MaryAnn F. Swift, Philadelphia, for appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   This is an appeal from the order of the Court of Common Pleas of Philadelphia County, which suppressed the physical evidence seized by the police. The lower court concluded that probable cause to perform a warrantless search of the trunk of appellant’s automobile did not exist and, therefore, the fruits of that search had to be suppressed. We agree with the lower court and affirm its suppression order.

When passing on a challenge to a decision of a suppression court, we may consider, only the evidence of defense witnesses and so much of the Commonwealth’s evidence that, read in the context of the record as a whole, remains uncontradicted. We are limited primarily to question of law, and we are bound by the suppression court’s findings of fact, provided those findings are supported by the record. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Marconi, 408 Pa.Super. 601, 607, 597 A.2d 616, 619 (1991); Commonwealth v. Person, 385 Pa.Super. 197, 200, 560 A.2d 761, 762-63 (1989). Governed by the foregoing standard, our review of the record reveals the following facts:

On August 13, 1990, the police received an anonymous telephone call concerning alleged drug trafficking activity on the 3200 block of North Randolph Street in Philadelphia. The caller stated that a balding, bearded Hispanic male -with dark complexion, wearing a dark blue t-shirt and blue shorts, was selling cocaine from a shopping bag which was kept in a blue Pontiac automobile. The anonymous caller also stated that the Pontiac had no license plates and was parked in front of 3249 North Randolph Street.

Two police officers, travelling in a marked police vehicle, were immediately dispatched to the area which was known to the officers as an area where drug trafficking was prevalent. When they arrived at the scene approximately 10 minutes later, the officers observed appellee standing by a blue Pontiac. Appellee matched the general description given by the caller. Appellee was showing another male the contents of a grocery bag. As the police approached in their marked vehicle, appellee looked at them, rolled up the bag, tossed it into the open trunk of the Pontiac, closed the lid of the trunk and began to walk away. At no time could the officers see the contents of the grocery bag, nor did they observe appellee engage in any transactions indicative of narcotics trafficking.

As appellee walked away from the Pontiac, the officers stopped appellee, frisked him, took the key to the Pontiac from him, returned to the vehicle and opened the trunk. The officers then removed the shopping bag from the trunk and discovered it contained 1005 small packets of cocaine. Appellee was placed under arrest and charged with possession of cocaine with intent to deliver.

Prior to trial, appellee filed a motion to suppress the physical evidence seized on the grounds that the officers lacked probable cause to perform a warrantless search of the trunk of the Pontiac. The suppression court agreed with appellee and, in part, reasoned:

Well, I rue the day when an individual has a bag in his hands and looks up and places the bag in the trunk of his car and walks away and can be considered to be engaging in suspicious behavior....
So what we have here is an anonymous tip, no surveillance by the police.
We do not believe the conduct that the defendant engaged in in any way created any suspicious behavior.

N.T., 8/22/91, p. 20.

In deciding to suppress the evidence, the court rejected the Commonwealth’s argument that the motor vehicle exception to the warrant requirement validated the officers’ actions.

Instantly, the Commonwealth does not contend that the officers had probable cause to arrest appellee. Rather, the Commonwealth contends that the officers had probable cause to conduct a warrantless search of the Pontiac pursuant to the automobile exception to the warrant requirement first set forth in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Further, the Commonwealth asserts that a “lesser standard of probable cause” is employed when reviewing searches of motor vehicles. Commonwealth’s Brief, p. 15. The Commonwealth contends that probable cause to search a motor vehicle is defined as “a basis for believing that evidence of a crime is concealed within the vehicle.” Commonwealth v. Milyak, 508 Pa. 2, 8, 493 A.2d 1346, 1349 (1985).

The Commonwealth quotes the following passage from Milyak, 493 A.2d at 1349, as the proper standard of review herein:

To justify ... a [warrantless] search ..., an officer must have independent probable cause to believe that a felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle, or that there are weapons therein which are accessible to the occupants.

Milyak, 493 A.2d 1346, quoting Commonwealth v. Lewis, 442 Pa. 98, 101, 275 A.2d 51, 52 (1971) (emphasis added); Commonwealth v. Shaffer, 447 Pa. 91, 104, 288 A.2d 727, 735 (1972) (quoting Lewis); Commonwealth v. Neary, 355 Pa.Super. 92, 100, 512 A.2d 1226, 1230 (1986) (quoting Lewis), appeal denied 515 Pa. 576, 527 A.2d 537 (1987); Commonwealth v. Tranzo, 404 Pa.Super. 15, 26, 589 A.2d 1147, 1153 (1991) (quoting Shaffer quoting Lewis).

The oft-quoted passage from Lewis, supra, was derived explicitly by our Supreme Court from their prior decision in Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970). Lewis, 275 A.2d at 52. In Dussell, 266 A.2d at 661, our Supreme Court stated:

We recognize that a special rule prevails as to the stopping and searching of moving vehicles suspected of being used in criminal activity. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), However, even where the search of a moving vehicle is involved, the officers must have independent probable cause to believe that a felony has been committed, and must have a basis for believing either that evidence of the crime is concealed in the vehicle or that there are weapons therein accessible to the occupants of the car. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968).

Clearly, Dussell, supra, requires that the police have probable cause to believe that a felony has been committed and that evidence of that same felony is contained within the car. However, the quote from Lewis, supra, seems to permit a warrantless search where the officer merely has “a basis for believing that evidence of a crime is concealed within the vehicle”.

Regardless of the quote from Lewis, supra, we are certain that the level of probable cause necessary for a search of an automobile is the same as that which would be necessary to obtain a warrant from an issuing magistrate. See Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991). It is true that “there is an established departure from the warrant requirement for certain automobile searches based on the inherent mobility of vehicles, with the consequent practical problems in obtaining a warrant prior to infringing a legitimate expectation of privacy, and on the ‘diminished expectation of privacy which is accorded automobiles because of their open construction, their function, and their subjection to a myriad of state regulations.” Milyak, 493 A.2d at 1349, quoting Commonwealth v. Timko, 491 Pa. 32, 38, 417 A.2d 620, 623 (1980) citing United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1971). However, the fact that the warrant requirement of the Fourth Amendment is relaxed for searches of vehicles does not likewise relax the need for probable cause prior to the search. The United States Supreme Court made this clear when, in United States v. Ross, 456 U.S. 798, 808-809, 102 S.Ct. 2157, 2164-2165, 72 L.Ed.2d 572, 583-584 (1982), it stated:

In short, the exception to the warrant requirement established in Carroll—the scope of which we consider in this case—applies only to searches of vehicles that are supported by probable cause. In this class of cases, a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.

See also, California v. Acevedo, — U.S. -, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991) (“The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained”). The scope of a warrantless search of a motor vehicle is “no broader and no narrower than a magistrate could legitimately authorize.” Ross, 456 U.S. at 825, 102 S.Ct. at 2173.

In Rodriguez, supra, our Supreme Court was faced with the question of whether probable cause for a warrantless search of an automobile existed. In answering that question, our high Court employed the following standards:

In this Commonwealth, the standard for evaluating whether probable cause exists is the “totality of the circumstances” test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See Commonwealth v. Baker, 513 Pa. 23, 518 A.2d 802 (1986), Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The benchmark of a warrantless [search of an automobile] is the existence of probable cause, namely, whether the facts and circumstances which are within the knowledge of the officer at the time of the [search], and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that [contraband will be found within the vehicle]. Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979). Applying that test to the within case, the veracity and basis of knowledge of those persons supplying hearsay information must be examined to determine whether there is a “fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Baker, supra, 513 Pa. at 26, 518 A.2d at 803.

Rodriguez, 585 A.2d at 990.

After applying the “totality of the circumstances” test to determine whether probable cause existed to search appellee’s vehicle, we agree with the lower court that the fruits of the warrantless search must be suppressed. Instantly, the police officers received an anonymous tip that a Hispanic male who was wearing a blue shirt and blue shorts was selling cocaine, obtained from a shopping bag located in the trunk of a blue Pontiac parked at 3249 North Randolph Street. Within minutes, the officers were at the location where they observed appellee, who fit the description, and another male looking inside of a grocery bag. Upon their approach, appellee looked up, placed the bag in the trunk of the car and walked away. Significantly, the officers did not witness appellee engage in any transaction consistent with drug trafficking. We do not find that such evidence alone would cause a reasonable man to believe there was a “fair probability” that cocaine was concealed in appellee’s trunk.

The case of Commonwealth v. Hunt, 280 Pa.Super. 205, 421 A.2d 684 (1980), is instructional. Therein, the officer received an anonymous tip that several people were selling “dope” on the 600 block of Herron Avenue in Pittsburgh. The officer was familiar with the area since he had previously made arrests for narcotics violations there. Upon his arrival at the scene, the officer saw a number of people, including the defendant and another black male who were making a “sort of exchange”, in which each handed an unidentifiable object to the other. The officer parked his police cruiser and approached the defendant and his companion. Both men fled. The defendant was captured and heroin was seized from his person. Based on those facts, we found that the police lacked probable cause to arrest the defendant, citing Commonwealth v. Santiago, 220 Pa.Super. 111, 283 A.2d 709 (1971).

Although the anonymous tip sub judice was slightly more detailed than the one in Hunt, supra, the remaining facts are less supportive of a finding of probable cause than those in Hunt, supra. The police did not witness any transaction, nor did appellee run away when the police approached him. Further, in Hunt, supra, there was essentially no means by which to test the reliability of the anonymous tip due to its vagueness, and presently, there was essentially no corroboration of the tip, thus, leaving its reliability in question also. See discussion, infra.

Instantly, we are presented with a tip from an anonymous informant who described appellee and alleged he was selling cocaine. Although the police were able to corroborate those immediately observable aspects of the tip, i.e., appellee’s physical appearance and location, they did not observe any activity which would lead them to believe appellee was selling narcotics. They did not witness appellee engage in a transaction of any kind, nor did they even attempt to conduct surveillance. Certainly, an anonymous tip, enhanced with corroboration by the police, can establish probable cause for a search. Commonwealth v. Sorrell, 319 Pa.Super. 103, 112, 465 A.2d 1250, 1255 (1983), citing Illinois v. Gates, supra. However, the present anonymous tip and the “corroboration” thereof which the Commonwealth deems so significant are not of the same quality as that which was reviewed with favor in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) and Commonwealth v. Ogborne, 410 Pa.Super. 164, 599 A.2d 656 (1991). In those cases, the informant was able to predict the suspect’s “future behavior”, and the police were able to observe those predictions unfold. Thus, the indicia of reliability in those cases were significant. As was stated in White, supra,

Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about the individual’s illegal activities.

Id., 496 U.S. at 332, 110 S.Ct. at 2417.

Presently, however, intimate details of appellee’s “future behavior” were neither predicted nor observed. The tip itself demonstrated none of the familiarity with the suspect which the White and Ogbome courts found so crucial.

Perhaps the best way to reveal the present lack of probable cause is to compare the facts before us to those in United States v. Ross, supra, where probable cause did exist. Therein, the police received a tip from a known and reliable informant that an individual known as “Bandit” was selling drugs from the trunk of a “purplish maroon” Chevrolet Malibu with District of Columbia license plates which was parked at 439 Ridge Street. The informant stated he had just observed a sale and that the suspect had told him that additional narcotics were in the trunk. The police immediately travelled to the area and spotted the Chevrolet Malibu. A license check revealed that the car was registered to Albert Ross, that Ross fit the informant’s description of “Bandit” and that Ross used the alias “Bandit.” During two passes of the neighborhood, the police did not see anyone matching the informant’s description. However, five minutes later, the police saw Ross driving the Malibu and stopped the car. The officers had Ross exit the car and while one officer performed a pat-down search of Ross, the other officer spotted a bullet lying on the car’s front seat. A search of the car’s interior ensued, and a handgun was found in the glove compartment. Ross was then placed under arrest, his keys were taken and the trunk of his car was opened. The trunk held a brown paper bag inside of which were discovered narcotics. It was determined that probable cause to perform a warrantless search of Ross’ automobile existed.

For our purposes, the crucial difference between Ross, supra, and our case is the nature of the tip and its corroboration by the police. Most significantly, in Ross, supra, the tip was not anonymous; rather, it was provided by a known and reliable informant. The informant did not merely state that the suspect was selling drugs as is the present situation, but went further, stating that he had just witnessed Ross complete a sale, that Ross had personally told him that he had more narcotics, and that he had seen Ross place a bag containing narcotics in the trunk of his car. See United States v. Ross, 655 F.2d 1159, 1168 n. 22 (1981), reversed on other grounds, Ross, supra. Corroboration by the police revealed that the car in question was owned by Ross who fit the informant’s description and employed the alias, “Bandit”.

Presently, the officers were armed only with an anonymous tip. The simple fact is that anyone who saw appellee standing on North Randolph Street could have given the police the tip in question. The tipster did not demonstrate any intimate knowledge of appellee, nor did he predict any “future behavior” which was confirmed by observation. Without surveillance corroborating more than the most superficial details of the tip, the reliability of the anonymous tip was, at best, suspect and certainly insufficient to support a finding of probable cause.

In sum, we find that the facts before us were not sufficient to allow the officers to perform a warrantless search of appellee’s automobile. Applying the “totality of the circumstances” test, we find that the anonymous tip and the “corroboration” thereof were insufficient to warrant a man of reasonable caution in the belief that cocaine would be found in the car’s trunk. Accordingly, we affirm the order of the court below which suppressed the evidence seized during the warrantless search of appellee’s vehicle.

Order affirmed.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. I would reverse the suppression court’s order excluding 1,005 packets of cocaine as evidence against Alberto Pleummer.

Pleummer was arrested after an anonymous tipster told police that a balding, bearded, dark-complected man wearing a blue tee shirt and blue shorts was standing next to a blue Pontiac in the 3200 block of North Randolph Street selling cocaine from a brown paper shopping bag. When police arrived at 3245 North Randolph Street 20 minutes later they saw a balding, bearded dark-complected male wearing a blue tee shirt and blue shorts showing another man the contents of a brown paper shopping bag while standing next to a blue Pontiac. The police then saw the suspect roll up the shopping bag, put it in the open trunk of the Pontiac, close the trunk, and walk away. The officers stopped Pleummer, frisked him, and used a key they found in his pocket to open the trunk of the Pontiac. The officers found the shopping bag in the trunk, opened it, saw clear plastic bags of glassine wrapped white powder, and arrested Pleummer.

The question before this court is whether the police lawfully searched the trunk of the car. The general rule is that police may not search a home or any place in which a person has a reasonable expectation of privacy without a warrant. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). A warrant is obtained after a neutral magistrate finds that probable cause exists for a search for evidence of a crime. Aguilar v. Texas, 378 U.S. 108, 109, 84 S.Ct. 1509, 1511, 12 L.Ed.2d 723 (1964). Probable cause is a product of a totality of the circumstances presented to the magistrate. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). See also Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991).

Several exceptions to the warrant requirement exist, one of which pertains to automobiles. Commonwealth v. Baker, 518 Pa. 145, 149, 541 A.2d 1381, 1383 (1988). Automobiles are excepted from the warrant requirement because they are inherently mobile and citizens have a lower expectation of privacy in their cars than in their homes. Commonwealth v. Milyak, 508 Pa. 2, 8, 493 A.2d 1346, 1349 (1985). Under the automobile exception an officer may search a car if he has independent probable cause to believe the automobile has been used in the furtherance of a felony or contains contraband or evidence of a crime. Id.

Thus, the question becomes did the police have probable cause to believe the Pontiac at 3245 North Randolph Street contained contraband or evidence of a crime. Probable cause is defined as “a substantial basis for concluding that a search would uncover evidence of wrongdoing.” Gates, 462 U.S. at 236, 103 S.Ct. at 2331. The level of probable cause needed to invoke the automobile exception to the warrant requirement is the same as the probable cause needed for a warrant. Milyak, 508 Pa. at 10, 493 A.2d at 1350.

Gates teaches that when an anonymous tip is involved we look to the totality of the circumstances to determine whether probable cause exists. 462 U.S. at 230, 103 S.Ct. at 2328. Totality of the circumstances relies on corroboration of details of an informant’s tip by independent police work. Id. at 241, 103 S.Ct. at 2334.

This court has held that general information from a known informant is sufficient probable cause for an officer to make an arrest, Commonwealth v. Miley, 314 Pa.Super. 88, 460 A.2d 778 (1983), and that particularized information from an anonymous source broadcast over the police radio network creates reasonable suspicion to justify a Terry stop and frisk. Commonwealth v. Whelton, 319 Pa.Super. 42, 465 A.2d 1043 (1983).

In this case the totality of the circumstances were a detailed and particularized anonymous tip corroborated in every aspect by independent police observation. Under the Gates and Rodriguez standard of totality of the circumstances, I would find the police had probable cause to search the vehicle, to seize the cocaine, and then to arrest Pleummer.

Today’s decision creates a new, and I believe untenable, standard by which to measure the totality of the circumstances. The majority opinion suggests that, in cases stemming from anonymous tips, probable cause will only be found if the tip either predicts future behavior which is corroborated by police surveillance or if the police observe at least suspicious, and possibly felonious, behavior after receiving the tip. I do not believe either requirement is demanded by our prior cases nor justified in this case.

I would reverse the holding of the suppression court and admit the evidence against Pleummer.

      . Herein, the Commonwealth has certified that the suppression order in question substantially handicaps their prosecution of this case. Therefore, this appeal is properly before us. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . Although those cases which quote the aforementioned passage from Lewis, supra, are cited by the Commonwealth as setting a "lesser standard” of probable cause, those cases all analyze their respective facts to determine whether there actually was probable cause to believe that evidence of a crime was secreted within the vehicle. Thus, in practice, the analysis and the results thereof in those cases did not indicate that Pennsylvania had a “lesser standard” of probable cause for motor vehicle searches.

      . Previously, the test for warrantless searches of cars had been summarized as "dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” Chambers v. Maroney, 399 U.S. 42, 48-49, 90 S.Ct. 1975, 1979-1980, 26 L.Ed.2d 419 (1970). Since Illinois v. Gates, supra, the federal judiciary, like Pennsylvania, has employed the “totality of the circumstances” test to assess probable cause in warrantless automobile searches. See United States v. Piaget, 915 F.2d 138 (5th Cir.1990); United States v. Marin, 161 F.2d 426 (7th Cir.1985); United States v. Cadena-Santos, 699 F.Supp. 607 (S.D.Texas 1988).

      . When they approached the scene, the officers were travelling against the normal flow of traffic, i.e., south-bound on North Randolph which is a one-way, north-bound street.

      . Compare Commonwealth v. Jenkins, 401 Pa.Super. 580, 585 A.2d 1078 (1991) (probable cause found when police observed suspect twice open trunk of car, place his hand in a plastic bag which contained numerous small packets filled with a white substance).

      . Moreover, the tips in Alabama v. White, supra, and Ogbome, supra, were used to justify a Terry stop of a suspect’s automobile which requires only "reasonable suspicion”, a far less exacting standard than probable cause. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We note that the Commonwealth has not asserted that the initial stop of appellee as he walked away from his automobile was a legal Terry stop, and consequently, we will not address that issue herein.

      . The Commonwealth has not argued the legitimacy of the Terry stop and frisk; the issue is not before this court.


source: Caselaw Access Project

author: OPINION PER CURIAM:

license: Public Domain

text:
    617 A.2d 725
    COMMONWEALTH of Pennsylvania v. Paul M. KACSMAR, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 27, 1992.
    Filed Nov. 4, 1992.
    Reargument Denied Dec. 18, 1992.

      Stanton D. Levenson, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   OPINION PER CURIAM:

Paul M. Kacsmar appeals the judgment of sentence of five to ten years imprisonment imposed following his conviction by a jury of voluntary manslaughter. As we conclude that the trial court improperly precluded appellant from introducing exculpatory evidence on the battered person syndrome, we are constrained to reverse and remand for a new trial.

Appellant was arrested on February 20, 1989, for the shooting death of his brother, Francis. Trial commenced on June 24, 1991, wherein appellant alleged he acted in self-defense. Appellant admitted that he shot his brother five times but contended that he was in fear of death or serious bodily injury as the result of Francis’s actions on the night of shooting and the fact that Francis continually abused him psychologically and physically for an extended period of time prior to this event.

The evidence at trial was as follows. Munhall Police Officers Donald Beseny and Richard Facchiano responded to a police call placed at approximately 7:15 p,m. on February 20, 1989, and proceeded to appellant’s residence at 3735 Botsford Street, Munhall. They arrived within approximately one minute of the call.. Appellant was standing outside the residence. The officers approached him and asked if the shooting was accidental. Appellant responded, “No; I shot him. The weapon is in the kitchen on the table unloaded and he is in the living room.” Notes of Testimony, 6/24-25/91, at 71, The officers entered the house and observed Mrs. Kacsmar on the sofa and Francis laying on the floor “bent over backwards with bullet holes in the chest.” Id. They did not discover a weapon near the body.

The officers returned to appellant and escorted him into the kitchen, where Officer Facchiano asked him about an injury that he saw on appellant’s mouth, which was swollen and bloody.. Appellant stated, “I got punched in the mouth and I’m tired of getting beat up.” Id. at 72. The weapon used in the shooting was a semi-automatic assault rifle. The coroner testified that the victim had five bullet wounds, bruised knuckles, and a small cut on his lip, which had been inflicted anywhere from an hour to a day prior to his death. Francis was 5'11", weighed 255 pounds, and described by the coroner as “well-developed and obese.” Id. at 90.

Appellant testified that at the time of the shooting, he lived with his seventy-five-year-old mother and Francis on Botsford Street, where he was raised. He left his home in 1969 following his graduation from Duquesne University, where he obtained a degree in chemistry. Immediately following college, he was employed by the National Institute of Mental Health for fourteen months and then by the Environmental Protection Agency. He was there for two years and then accepted employment with the State of Delaware as a chemist. He worked for Delaware for four and one-half years. In July, 1976, he returned to Pittsburgh. A year later, he obtained employment in private industry and worked at three different establishments over the next two years. He eventually obtained employment with the Mine Safety and Health Administration, part of the United States Department of Labor in Oakland. In 1985, he suffered a stroke and retired.

From 1976 to 1989, he lived at home with his mother and Francis. Appellant described his relationship with Francis as “typical” until 1968, when their father died, id. at 114, and Francis decided to take his place as head of the household. Francis had graduated from Duquesne University in 1964. He served with the army in Vietnam for four and one-half years, achieving the rank of captain upon his discharge. Appellant stated that he did not react well to Francis’s new self-imposed role since appellant was twenty-one and “didn’t think I needed a father at that time.... Plus, I didn’t think he was the man to step into our father’s shoes quite like that.” Id. at 115.

Francis treated appellant “in a condescending, often critical manner. Very judgmental. He seemed to think that I owed him some sort of obedience, which I would normally give to a proper parent.” Id. The fact that appellant failed to be obedient led to disagreements, tension, and physical altercations. During one incident that occurred in 1976, Francis slapped appellant. Since this incident occurred prior to appellant’s stroke, appellant retaliated, and the two struggled temporarily.

After 1976, there were other incidents of physical violence, which appellant described as follows:

Usually they were limited to pushing each other around a little bit and him doing a lot of threatening. There were times when we traded blows a few times.
Q Were you ever the initiator of any of these physical incidents?
A No.
Q You said that he would threaten you.
A Yes.
Q What form would the threats take?
A He would say things like, “I’m going to beat the hell out of you. You ought to have the hell beat out of you,” or “I’m going to kill you,” things like that.
Q Were you fearful of your brother?
A Yes.
Q Why?
A Because he was bigger and stronger than I was.
Q Did he have any special training in terms of physical—
A Yes. He was interested in martial arts. He had a brown belt in judo from some local trainer. A few times he was [not] adverse to trying a little bit of this stuff on me. I really didn’t know anything about that sort of thing. I was at a disadvantage.

Id. at 117-18.

Appellant then described the events surrounding the shooting. Francis and he just had returned home with their mother, who had been hospitalized after suffering a heart attack in January, 1989. Appellant was watching a television program when Francis, came and changed the channel. Appellant asked him if he could tape a program later. Francis agreed condescendingly, which annoyed appellant since he owned the television and VCR.

Francis stated that the two of them had to talk, which appellant had tried to avoid since the preceding November, when they had argued. Francis accused appellant of not doing his share of the housework, which surprised appellant since he had been doing most of the yard and housework since he retired. The argument escalated. Appellant testified,

I said, “What are you talking about?” He told me—I said, “What do you mean I’m not pulling my weight?” He said, “You’re going to have to do more around here than just doing the laundry, washing the dishes.” I’m not sure what he meant by that. He said, “If you don’t do that, I’m going to throw you out of the house.”
Q What was your response to that, Paul?
A My response to that was—pardon my saying—“you’re full of s—. This is not your house to throw anybody out of. It is our mother’s house.”
A My mother had always led us to understand that the house—we were free to live in the house as long as she was alive; that it was our house as well as hers.
Q You said that to your brother?
A Yes.
Q What was his response?
A He said, “Well, it is not her house anymore; it is my house.” I said, “What are you talking about?” He said, “Well, she sold the house to me.”
Well, knowing my brother as I did, he would often exaggerate or lie if he felt it was in his interest. I thought that that is what he was doing this time; lying. I said, “You’re lying again and I’m getting sick of it. I want you to knock it off.” At that time, he just hauled off and punched me in the face.
Q You say he hauled off and punched you in your face?
A Yes.
Q How many times?
A Well, he punched me once, twice, three times. Then he got his hand up and gave me three sharp chop blows like that (indicating) in the jaw. I remember those very distinctly. He hit me with a couple single wallops again and a couple more pops. There were at least three instances where he hit me with the short jabs like that.
Q Were all of these to the face area?
A Yes. All to my left jaw.
Q Did you make any attempt to fend this off?
A Well, the first time I was kind of surprised. I kind of took a step back, and he advanced up and hit me again. After about the third one, I took a swing back and I missed.
Q You did swing back at him and you missed?
A Yes.
Q Then what happened?
A He grabbed my glasses and took them off and threw them on one of the tables in the living room there. Then he reached down and grabbed my—I was wearing a sweater. He grabbed me by the lapel here with his left arm, left hand, and he just—because he had longer arms, he just punched away at me.
Q Where was he punching away at you?
A On the side of my face and jaw here. Even after two years I would still say there is a sore area here in my cheekbone.
Q At this point were you able to retaliate in any way?
A No.
Q Did you feel any blood?
A Well, after awhile I felt something moist up here on my lip, and I put my hand up like this and looked down at it and there was blood there. It was my blood.
My brother saw this at the same time. He kind of stopped a second and looked at the blood there and there and said, “Oh, you’re bleeding. I will give you some more.” He started punching on me- again.
Q Where was he punching you at that time?
A On the face.
Q What happened?
A I kept stepping back, and finally I stepped back—he had a bunch of cookbooks sitting on a little TV stand. I backed into that and knocked that over. Somewhere about then he gave me a good wallop on the side of the face that I actually went black, my vision went black. I felt my knees start to buckle. I thought I was going to go down right then. Somehow I managed to stay on my feet.
Q So you did not go down?
A No.
Q What happened after that?
A After I knocked down the TV stand, he stopped. At that point I decided to get away from him as fast as I could. I grabbed my glasses and went up to my room.

Id. at 122-25. Appellant testified that he was afraid for his life “[bjecause of my brother’s vicious attack on me. When everything went black there for a second, I was afraid he would injure something in my head again. That is where I had my stroke.” Id. at 126. Feeling that the argument was not concluded, appellant decided to return “on equal terms.” Id. at 127. Appellant rationalized his decision to confront Francis again as follows:

Q When you say the argument was not over—you had gotten away from your brother and gone up to your bedroom; is that right?
A Yes.
Q Why in your mind was the argument not yet completed?
A As far as I could see, this was establishing a pattern that was kind of stretched out. One time he slapped me over the face and that was fine. Now he finds out he can beat me up if he wants to. What was going to happen the next time? Was he going to kill me the next time? Berate me until I died? Was he going to miscalculate and maybe beat me up a little bit and cause a massive brain hemorrhage and if not kill me at least kill—certainly incapacitate me for—forever. It was a very dangerous precedent being set there.
Q Were you fearful of your brother?
A Yes.
Q You said you wanted to equalize things. How did you intend to do that?
A I decided to use a firearm.
Q Did you have a firearm in your bedroom?
A Yes.
Q When you went back downstairs with the firearm, did you intend to shoot your brother?
A No.
Q Did you intend to kill your brother?
A No.
Q Why did you have the firearm with you and in loaded condition?
A Because I was afraid for my life if I went down there with nothing in my hands.
Q When you went back down to the living room, can you estimate for us how much time had elapsed between when you got away from your brother and when you were now back down in the living room with the rifle?
A I would say about 15 seconds.
Q When you got back downstairs to the living room, where was your brother?
A He was back over by the fireplace picking up his cookbooks.
Q Was he kneeling over at that point?
A He was bent over, yes.
Q Was his back to you?
A No. He was more or less facing me.
Q Did you say anything to him?
A No.
Q Did he say anything to you?
A. No.
Q What happened after that?
A Well, at that point he got up and started to come toward me, and I thought that he was out of his mind at that point. I was afraid for my life. I opened fire.
Q You said you thought he was out of his mind?
A Yes.
Q What did you base that on?
A Just the fact that he did what he did in the first place. I don’t think beating the hell out of someone is a rational act by somebody, especially your own brother; that he would be so mean and cruel. The fact that he was raving—maybe I shouldn’t say that.
As far as I know, he was raving about owning the house, which I didn’t know anything about. He had been doing some funny little things in the preceding weeks. I would mow the grass, and he would come home from work and attempt to cut the grass the same day. I couldn’t understand why he was doing something like that. I think he was just going off in his head.
Q So now your brother was coming towards you and you fired your rifle?
A Yes.
Q Why did you do that?
A I wanted to stop him from hurting me.

Id. at 127-31.

Appellant could not recall how many times he shot his brother. After the shooting, appellant telephoned for an ambulance, unloaded the gun, and placed it on the kitchen table.

Mrs. Kacsmar testified as follows. Francis was five years older than appellant and served in Vietnam for three years. She described Francis as authoritative and militaristic; he ordered appellant around. She stated that appellant was slower physically after his stroke and that Francis was impatient with him and did not think appellant was performing as many tasks as he should. In 1988, she placed Francis’s name on the deed to her house but never discussed the transfer with appellant.

One of the family’s neighbors, James Rushe, also testified. He knew the family for fifteen years, and the two brothers were opposites. While both were friendly, Francis was outgoing, but appellant was quiet. Francis was “pretty tough” on appellant, would “talk to him in a demeaning tone,” and call him an “a—h—” and tell him to “hurry up” and to stop “fooling around.” Id. at 181. He described the two of them together:

Q Did you ever see Francis treat anybody else the way you saw him treat his brother?
A Oh, no. That went on—when they were putting a wall up over the house, that went on. Every time they worked together—[appellant] used to just turn—to tell you the truth, I don’t know how—he just turned and kept his mouth shut. It hurts to be spoken to like that in front of a neighbor or somebody that is really not tied in as a friend. I was only in their home maybe four times in the 15 years.
Q When you would observe any of these incidents, did [appellant] ever retaliate or say anything in his own defense?
A Once in a while he would say, “give me a break,” or something. “You fix mom’s and I will take care of mine.” [Francis] wanted to be the boss. He wanted to run the show and do this and do it his way, and [appellant] was more methodical, kept to himself....

Id. at 181-82.

Lawrence Rock, also a neighbor, testified as follows. He knew the brothers for approximately seven years and was a friend of Francis. He described Francis as giving orders all the time and always wanting to be the “boss.” Id. at 189. He observed Francis belittle his brother and after appellant’s stroke, Francis often complained about the amount of work that his brother was doing. He noticed that the brothers did not get along and that there were long periods when they did not speak to one another. Appellant never complained about his brother. Mr. Rock stated that Francis carried a weapon in his belt or ankle “all the time” while appellant never carried a gun. Id. at 192. Francis also used to say that his familiarity with martial arts gave him the ability to kill someone without leaving marks on the body.

Prior to trial, the Commonwealth presented a motion in limine seeking to prohibit appellant from presenting the testimony of Dr. Kenneth Stanko, a psychiatrist, who would have testified based upon his own observations and those of Dr. Christopher Coburn, a doctor of psychology. Appellant wanted to introduce that testimony in part to establish that he reasonably believed that he was in actual danger at the time of the shooting and that testimony should have been admitted to demonstrate his need to defend himself. Appellant’s offer of proof was that his fear of death or injury was based partially upon the history of psychological and physical abuse. Dr. Stanko would have explained the characteristics of victims of psychological and physical abuse and would have opined that appellant was the victim of psychological and physical abuse inflicted by his brother based upon certain victim characteristics demonstrated by appellant. The doctor also would have offered an opinion to a reasonable degree of certainty based upon his evaluation that when appellant shot his brother, he was in fear of imminent death or serious bodily injury. Dr. Stanko also would have testified that Dr. Coburn’s psychological testing led that doctor to the same conclusions as Dr. Stanko regarding appellant’s state of mind. Finally, Dr. Stanko’s testimony would have clarified for the jury that when someone has been abused, their thought processes and reactions are different and he would have explained why appellant continued to live in the abusive environment.

The trial court concluded that appellant could not present the psychiatrist’s testimony, reasoning that the testimony was impermissible, as its sole purpose was to bolster appellant’s credibility. It relied upon a number of cases which have held that the Commonwealth may not introduce expert testimony concerning the veracity of a rape or child abuse victim. On appeal, appellant argues that Dr. Stanko’s testimony was precluded erroneously.

Initially, we observe that the standards applicable to a defendant’s admission of exculpatory evidence and the Commonwealth’s admission of inculpatory evidence differ significantly. This difference is premised upon the application of constitutional guarantees. Our Supreme Court consistently has admonished us that “[a]n accused has a fundamental right to present evidence so long as the evidence is relevant and not excluded by an established evidentiary rule.” Commonwealth v. Ward, 529 Pa. 506, 509, 605 A.2d 796, 797 (1992), citing Chambers v. Mississippi 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Once it is determined that proffered evidence is relevant, due process requires that it be admitted unless an established evidentiary rule requires its exclusion. Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988); Commonwealth v. Greene, 469 Pa. 399, 366 A.2d 234 (1976).

Appellant argues that the testimony of Dr. Stanko was relevant as it would have explained to the jury how the history of abuse by Francis impacted upon the reasonableness of his belief that at the time he shot his brother, he was in danger of death or serious bodily injury and could not retreat. Appellant explains the precise content of the testimony that the doctor would have presented.

Dr. Stanko concluded that appellant had endured lengthy periods of verbal, physical, and emotional abuse and that due to his personality, appellant felt both threatened on the night of the shooting and that he could not escape the abusive situation. Dr. Coburn concluded that appellant exhibited many characteristics of an abused person in that he was isolated socially and lived with his brother and mother in a closed environment. He opined that appellant’s environment was similar to that endured by a battered wife. Dr. Coburn concluded that the option of leaving the environment would not have occurred to appellant due to his need to feel safe and secure in the home. Test results indicated that appellant was deeply insecure about his self-worth and this would have reinforced his belief that he could not leave home but had to stay and accept Francis’s dominance and abuse. Appellant simply felt that he would be unable to survive outside his home.

We conclude that this evidence was relevant and not excludable under any established evidentiary rule. Defendants traditionally have been permitted to introduce expert testimony regarding their state of mind at the time of a killing. In Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974), our Supreme Court ruled specifically that psychiatric testimony concerning whether the defendant was in subjective fear of death or seriously bodily injury was admissible in a murder trial. The court concluded that the evidence was relevant on the issue of self-defense, which requires a subjective belief of danger or death, and also relevant to the state of mind required to mitigate murder to manslaughter if the jury should determine that the belief was subjective but not reasonable. See also Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972) (psychiatric evidence is admissible on issue of whether a defendant acted in the heat of passion at time of killing); Commonwealth v. Potts, 486 Pa. 509, 406 A.2d 1007 (1979) (trial counsel was ineffective for failing to present psychiatric testimony which would have established that due to a personality disorder, defendant was acting in heat of passion at time of shooting); Commonwealth v. Atwood, 411 Pa.Super. 137, 601 A.2d 277 (1991) (testimony of practices of people in defendant’s profession to establish lack of intent to commit theft was excluded improperly).

More recently, the Pennsylvania Supreme Court held that trial counsel rendered ineffective assistance by failing to present expert testimony on the battered woman syndrome as a defense to homicide charges. Commonwealth v. Stonehouse, 521 Pa. 41, 555 A.2d 772 (1989). The Stonehouse Court stated expressly, “We shall apply the rule pertaining to the syndrome to men as well as to women.” Id., 521 Pa. at 45 n. 1, 555 A.2d at 774 n. 1. The Court held that expert testimony on the syndrome should have been presented in that case since it was not contradicted that the defendant was a victim of abuse and that the jury, without the aid of the expert testimony, was likely to render a verdict based upon erroneous assumptions about the victims of abuse. It opined that expert testimony regarding the battered woman syndrome is admissible as the basis for proving self-defense or justification for the use of deadly force. Specifically, the Court noted that there are myths about the victims of abuse which can be dispelled by expert testimony. The myths, the Court stated, include the one that abused people are masochists who are responsible for the abuse. These “blame the victim” myths, the Court observed, improperly may lead the jury to fail to address why abused people remain in the abusive family situation instead of leaving. The Court concluded that proper expert testimony could convince the jury to find that the abused defendant was isolated and that at the point of the killing, was justified in believing that no one could help them solve their problem.

We can find no reasoned distinction between the evidence analyzed in Stonehouse and the evidence which appellant sought to introduce herein. Dr. Stanko would have testified that appellant suffered from a personality disorder that rendered him socially isolated and highly dependent upon remaining in his childhood home despite an abusive environment. This disorder impacted upon his perception that he could retreat from the abuse and his fear that he was in danger of death or serious bodily injury. Indeed, Dr. Coburn specifically opined that appellant’s environment was similar to that endured by a battered wife. Furthermore, just prior to the shooting, Francis’s physical abuse had escalated in intensity and he had threatened to evict appellant from the home. A jury would not understand how appellant’s personality disorder impacted upon his state of mind and why appellant merely did not leave the home after Francis stopped the assault. The fact that appellant endured this abuse was not contradicted but was confirmed by his mother and two independent witnesses.

Having determined that the evidence was exculpatory and specifically admissible under precedent, we also must note our disagreement with the trial court’s conclusion that the evidence was inadmissible under the established evidentiary rule that an expert may not vouch for the credibility of a witness by opining that the witness is testifying truthfully. The trial court relied upon a number of cases which prohibited testimony concerning child abuse syndrome. The salient feature in those cases, however, is that the expert was permitted to opine that a child abuse victim was testifying truthfully.

In Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986), an expert was permitted to testify that children who are the same age as the victim in that case do not normally fabricate charges of child abuse. Our Supreme Court held that the sole purpose of this testimony was to bolster the victim’s credibility and this was improper. Similarly, in Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992), our Supreme Court ruled that an expert may not opine that inconsistencies in a victim’s testimony and the victim’s failure to promptly report sexual abuse were a product of child abuse syndrome rather than fabrication. The Court concluded that this type of opinion testimony is nothing more than an attempt to bolster the victim’s credibility and also that the ability to assess why a child victim’s testimony is inconsistent is within the ability of an ordinary juror.

In the present case, however, we are not dealing with inculpatory evidence introduced by the Commonwealth. Instead, the constitutional requirement that the defendant should be permitted to present exculpatory evidence applies. Further, the sole purpose of Dr. Stanko’s testimony was not to “bolster” appellant’s credibility by suggesting that gaps and inconsistencies in the testimony were the result of trauma or that people who are subjected to abuse do not ordinary lie.

Instead, the proposed testimony would have aided the jury in evaluating appellant’s behavior and state of mind in light of his reclusive personality and the abusive environment. The testimony at issue herein falls squarely within the reasoning of our Supreme Court in Stonehouse. The reasonableness of appellant’s belief that he was in danger of death or serious injury due to the interplay among appellant’s lack of self-esteem and need to live at home and the change in the nature of Francis’s abuse on the night of the shooting is not within the understanding of the ordinary juror.

In light of Stonehouse, we also must reject the Commonwealth’s suggestion that the conviction can be affirmed on the basis of the Court’s reasoning in Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977), a case involving self-defense. There, the Court found that under Commonwealth v. Light, supra, trial court improperly excluded psychological testimony that appellant was in fear of death or serious injury at the time of the shooting. It also held that the lower court’s error in excluding the evidence was harmless.

According to the defendant’s testimony in Black, he and the victim had quarreled over the telephone, and the victim arrived at the defendant’s home in his car, jumped out of the car and while reaching into his pocket, ran toward the defendant, who was standing in an open front door. The defendant claimed that he was frightened by the victim’s actions, grabbed a gun which was kept near the front door, and shot. In analyzing Black’s claim that he acted in self-defense, the Pennsylvania Supreme Court concluded that the defendant failed to provide evidence to permit a finding that he reasonably believed that the situation warranted the use of deadly force. Black conceded that the victim had not threatened him or displayed a weapon and that he was not close enough to Black when shot to pose an immediate threat. Additionally, the Court noted that Black had grabbed the gun and fired as soon as he saw the victim, ignoring the reasonable alternatives of asking the victim to stop, warning him that he possessed a weapon, or attempting to ascertain the victim’s intent.

The Court concluded that even if the evidence had been admitted, self-defense was not established as a matter of law. See also Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976), where the Pennsylvania Supreme Court held that the trial court properly disallowed the defense’s expert testimony as to whether defendant accidentally shot the victim during a bar brawl. The Court concluded that the sole purpose of the testimony was to bolster the defendant’s credibility and the jury was capable of assessing the accidental nature of a shooting based upon the defendant’s testimony.

Initially, we must observe that in Stonehouse, the unreasonableness of the defendant’s professed fear of death or serious injury was apparent. There, the defendant was standing on the landing of a second story of an apartment while the victim was on the ground. There was no indication that the defendant could not have retreated or that the victim was approaching her. Thus, the unreasonableness of the fear of further attack at the moment of the shooting was apparent. However, the very purpose of the expert testimony on the battered person syndrome is to show why the defendant feels that the abuse cannot be avoided in the future. In Black, the assailant and victim were not in an ongoing abusive relationship. The reasonableness of Black’s fear did not depend upon any psychological processes that could not be evaluated based upon objective criteria within the knowledge of the average juror. That is not the case herein. The reasoning in Stonehouse clearly applies.

Judgment of sentence reversed and case remanded for a new trial. Jurisdiction relinquished.


author: HUDOCK, Judge:

text:
    617 A.2d 733
    Christine BARINKA, Appellant, v. Eric BARINKA, Appellee.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1992.
    Filed Nov. 5, 1992.
    Reargument Denied Jan. 15, 1993.

      Sharon L. Cloud, West Chester, for appellant.
    Eric Barinka, pro se.
    Before McEWEN, DEL SOLE and HUDOCK, JJ.
   HUDOCK, Judge:

This appeal by Christine Barinka (Christine) concerns an order entered by the trial court prohibiting retroactive modification of her husband’s support obligation. We vacate and remand.

The Honorable Alexander Endy entered a temporary order on July 19, 1989, requiring Eric Barinka (Eric) to pay support in the amount of $785.00 per month for the parties’ two minor children. On October 27, 1989, the Honorable Thomas G. Gavin then reduced Eric’s obligation to $325.00 per month retroactive to September 30, 1989, on the basis of Eric’s report that he was not working and was receiving only unemployment compensation. Judge Gavin further ordered that Eric report his employment status every fifteen days to the Domestic Relations Office. At the time of these first two orders, Christine was working and had custody of the two children.

On July 16,1990, the parties executed a property settlement agreement which included a no-support provision and a shared custody arrangement. About a month after the execution of the property settlement agreement, Christine alleges she learned that Eric had, in fact, been working at the time of the October 1989 support order that reduced his obligation. On September 5, 1990, Judge Gavin, in accordance with the parties’ property settlement agreement of July 1990, vacated the order directing Eric to pay support.

Having learned of Eric’s employment, Christine filed a petition on September 7, 1990, seeking reinstatement of the support obligation, recalculation of support for the previous year, and entry of an ongoing order of support based on the discrepancy in the parties’ incomes. Christine’s petition was heard by a Master on December 19, 1990. The Master entered an order on March 20, 1991, directing that Eric’s support obligation be reinstated for the period from September 1, 1989, until January 17, 1991. (The period after January 17, 1991, was covered in a second agreement entered into by the parties on March 6, 1991.) The basis for the Master’s recommendation was her finding that Eric had fraudulently concealed his employment/income status from the court and Christine in order to lower his support obligation.

Eric filed exceptions to the Master’s March 20, 1991, order granting retroactive modification of his support obligation. Judge Endy entered an order sustaining Eric’s exceptions and denying retroactive modification of the support order. The trial court stated several reasons for its conclusion: 1) the hearing officer had no authority to consider the allegations of fraud on the part of Eric; 2) Pa.R.C.P. 1910.17 does not require the defendant to report change of income; the requirement is to report changes of employment and personal or employment address; 3) Pa.R.C.P. 1910.17(b) prescribes the remedy for willful failure, which is an adjudication of contempt; 4) the property settlement agreement included a settlement of all claims, including support, to that date; and 5) the. hearing officer abused her discretion in reinstating the support order and calculating arrearages beyond the effective date 'already agreed upon by the parties. Opinion of the Honorable Alexander Endy, September 27, 1991, at pp. 4, 5.

Christine then filed a petition for special relief or reconsideration; the trial court entered an order denying her petition on October 10, 1991. From that order, Christine appealed.

The scope of our review in child support cases is very narrow. We will disturb the trial court’s findings only where the judge has clearly abused his discretion. O’Connell v. O’Connell, 409 Pa.Super. 25, 597 A.2d 643 (1991). With this standard in mind, we turn to the merits of Christine’s appeal.

Christine relies on section 4352 of the Domestic Relations Code, 23 Pa.C.S. (Purdon 1991), as authorization for the retroactive modification of Eric’s support obligation. The pertinent language of this section reads as follows:

§ 4352(e) Retroactive modification of arrears.—No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification.... [Modification may be applied to an earlier period if the petitioner was precluded from filing a petition for modification by reason of ... misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition.

This Court recently addressed section 4352 in Benjamin v. Benjamin, 408 Pa.Super. 320, 596 A.2d 877 (1991). In Benjamin, we explained that

[a] trial court has no jurisdiction to entertain a request for [modification of arrearages] for a period during which there is no pending petition for modification, unless of course the circumstances fall within the enumerated exceptions to the statutory requirement, i.e., physical or mental disability, misrepresentation, or “other compelling reasons.”

Benjamin, 596 A.2d at 878. Relying on Benjamin, Christine argues that Eric’s willful failure t'o disclose his true employment status falls under one of the enumerated exceptions to the statutory requirements of section 4352, namely, misrepresentation. Given this exception, Christine claims she is entitled to an order modifying Eric’s support obligation from September 1, 1989, until January 17, 1991 (as recommended by the Master).

Judge Endy did not address the requirements or exceptions of section 4352. He based his decision on two other items— the property settlement agreement and a rule of civil procedure. As for the agreement, the trial court stated:

While we do not condone Defendant’s action, we note that the July 16, 1990 property settlement agreement included a settlement of all claims, including support, to that date and we will not allow a party to accept all the benefits of an agreement and subsequently repudiate one of the provisions of that same agreement. Mrs. Barinka was represented by able counsel in making the agreement and presumably counsel satisfied herself and Mrs. Barinka that it was based on reliable information and belief.

Opinion, September 27, 1991, at p. 2. The trial court went on to find that neither party had bargained away their support obligation and that the agreement made adequate provision for the needs of the children. Opinion of September 27, 1991, at p. 3.

As for the procedural rule, the trial judge relied on Pennsylvania Rule of Civil Procedure 1910.17(b), 42 Pa.C.S. (Purdon Supp.1992). This sub-section reads as follows:

(b) The [support] order shall notify the obligee and the obligor that each is under a continuing obligation to inform the domestic relations section in writing or by personal appearance within seven days of any change of employment, change of personal or employment address or change of address of any child receiving support. The order shall also notify the parties that if a party willfully fails to inform the domestic relations section of the required information, the court may adjudge the party to be in contempt of court pursuant to Rule 1910.21 and may order the party to be punished by one or more of the following: jail, fine or probation.

According to the trial court, Eric did not misrepresent his income to Christine or the court because he was under no statutory obligation to inform them of any change in his income. Opinion of September 27, 1991, at p. 2. We concede that Pa.R.C.P. 1910.17(b) does not require Eric to report any changes in his income per se and, therefore, he cannot be said to have misrepresented his income to Christine or the court in late 1989. However, Pa.R.C.P. 1910.17(b) does require Eric to report any change in his employment. The trial judge made no finding of fact as to whether Eric was working during the very time period he told the court he was unemployed. Nor did the trial court adopt or reject the Master’s finding that Eric had been working at the time in question. Without making such a finding, the trial court based its conclusion on information Eric was not obligated to provide, i.e., information about his income. The trial court should have focused its inquiry on information Eric was obligated to provide, i.e., his employment status. We hold the trial court abused its discretion in not determining whether Eric violated Pa.R.C.P. 1910.-17(b) and the court order of October 1989, both of which directed him to report his employment status to the Domestic Relations Office.

We reject any suggestion that, because he was not obligated to inform the court about changes in his income, Eric was entitled to enter a courtroom and make misrepresentations to the court about his employment status. Common sense dictates that an obligor’s income is inherently linked to his employment status. If the trial court finds that Eric intentionally misrepresented his employment status, the logical inference is that Eric committed a fraud on the court in order to hide income which could have been applied toward his support obligation. We will not tolerate such an affront to the court’s integrity.

In October 1989, Eric reported to the court that his employment changed from working to not working and receiving unemployment compensation. Christine alleges, and the Master found, that Eric had, in fact, been working at the time. We remand to the trial court for a determination of whether Eric misrepresented his employment status in violation of Pa.R.C.P. 1910.17(b) and in violation of the court order directing him to report his employment status every fifteen days. If the trial court finds that Eric affirmatively misrepresented his employment status to the court, then the court must look to the requirements of section 4352 of the Domestic Relations Code in disposing of this matter. The trial court will have to make an additional determination as to the validity of the property settlement agreement.

Order vacated and case remanded. Jurisdiction relinquished.

      . The no-support and release provisions read, respectively, as follows: “Neither party will provide the other with child support payments.... Both parties do hereby waive, release and give up any rights they may have against the other for alimony pendente lite, alimony, support, attorney's fees, or maintenance.” Property Settlement Agreement, July 16, 1990, at p. 6, ¶¶ 6(J) and 7.

      . Before the Master entered his modification of support order, Christine filed an emergency petition for full custody of the children. On January 17, 1991, the trial court returned primary custody of the two children to Christine. On that same day, she filed a petition for increased child support from Eric because she now had both children, whereas under the property settlement agreement she had custody of one child. On March 6, 1991, the parties agreed to the entry of a support order in the amount of $730.00 per month. That order was entered on March 21, 1991, and Eric filed exceptions to it. He later withdrew his exceptions.

      . Nor are we persuaded by Eric’s argument that, even if he did hide his income in entering the property settlement agreement, his paying the mortgage while Christine and the children lived in the family residence should exonerate him. Eric was required to pay support; his voluntary assumption of the mortgage payments did not relieve him of his support obligation.


text:
    617 A.2d 737
    In re ESTATE OF Arthur S. SALUS, Deceased. Appeal of Samuel W. SALUS and Liane S. Kohn. ESTATE OF Arthur S. SALUS, Deceased. In re ESTATE OF Samuel W. SALUS, Deceased, for Estate of Samuel W. Salus. Appeal of Samuel W. SALUS and Liane S. Kohn. In re ESTATE OF Ada R. SALUS, Deceased, for Estate of Ada R. Salus. Appeal of Samuel W. SALUS and Liane S. Kohn.
    Superior Court of Pennsylvania.
    Argued June 4, 1992.
    Filed Nov. 30, 1992.

      Edward J. Hayes, Philadelphia, for Samuel Salus and Liane Kohn.
    Sidney E. Herold, Philadelphia, for Estate of Arthur and Ada Salus, Deceased.
    Before CAVANAUGH, DEL SOLE and BECK, JJ.
   OPINION PER CURIAM:

In these consolidated appeals from three final orders of the Orphans’ Court Division of the Court of Common Pleas of Philadelphia, the issues posed are:

1. Did the trial court err in deciding that terminal commissions were due to appellee, the Estate of Arthur S. Salus, Deceased, for work performed by the deceased as trustee of three family trusts where the court had before it the final trust accounts, but the estate did not submit additional evidence of the specific services performed?
2. Did the trial court err in refusing to find that the deceased had waived his right to terminal commissions by failing to request any prior commissions and by failing to preserve the right to terminal commissions in a family settlement agreement concerning the investment of the trust assets which was executed by the deceased and appellants, the remaindermen of the trusts, nine years before the termination of the trusts?

The facts giving rise to these issues are as follows. Samuel W. Salus and Ada R. Salus were husband and wife. Samuel died in 1945 leaving a will which established a trust providing for the payment of income to Ada for life (hereinafter “the Samuel trust”). Arthur S. Salus, their son, was the successor life tenant of the trust and the sole trustee. The Estate of Arthur S. Salus is the appellee herein.

Ada died in November of 1963. Her will provided that one-half of the residue of her estate was to be placed in a trust with the net income to be paid to Arthur for his life with the principal remainder to go to her grandchildren, Samuel W. Salus, II, and Liane S. Kohn (hereinafter “the Ada trust”). The latter are the appellants herein and are Arthur’s children. Arthur was also the sole trustee of Ada’s trust.

At some time during Arthur’s administration of these trusts, a dispute arose between Arthur and appellants regarding various investments in both trusts, the overall investment philosophy applied to the trusts, and Arthur’s general management of the trusts. Appellants objected to what they perceived to be Arthur’s investment philosophy, which they thought emphasized production of income to the detriment of appreciation of principal.

As a result of these disagreements and after negotiations between the parties, in 1980 Arthur entered into a Family Agreement (the “Agreement”) with appellants. The Agreement provided that appellants would not file objections to the First Accounts of the trusts which Arthur had filed in the Orphans’ Court. The Agreement further stated that appellants released Arthur from “any and all claims that each does, has or may have against Arthur and his successors for all his acts as Trustee of the Samuel W. Salus Trust and Ada R. Salus Trust from the beginning of the world to the date of these presents.... ”

In return, Arthur agreed that a co-trustee would be appointed to administer the trusts with him. Arthur also agreed that he would create a separate inter vivos trust which he would fund with $30,000 and which would provide that Arthur would have the right to income for life, the remainder to be paid to appellants on Arthur’s death (hereinafter “the Arthur trust”). Finally, Arthur agreed that the investment policy of the three trusts would be maintained evenly between the production of income and the appreciation of principal. The Agreement made no mention of trustee commissions.

Arthur died in March of 1989. His death caused each trust to terminate, thereby causing an account to be filed in each of the three trusts. At the audit of these accounts, counsel representing the estate appeared and made a claim for terminal principal commissions claimed to be earned by Arthur during his administration of the trusts. The amounts claimed were:

Samuel W. Salus Trust $18,954.00
Ada R. Salus Trust $14,654.00
Arthur S. Salus Trust $ 2,030.00

The surviving trustee of the three trusts, Jay Ochroch, objected, contending that Arthur had impliedly waived any claim to commissions and, if waiver were not found, that any services Arthur had performed for the trusts were of no value. A hearing was held before the Honorable Joseph C. Bruno on June 27, 1990. At the hearing, counsel for the estate submitted a memorandum of law in support of the estate’s claim, but did not present any independent evidence of services Arthur had rendered. He argued that no such evidence was available, since no time records of Arthur’s services were available, and Arthur himself was unavailable to testify as to the specific services he had rendered. Counsel for the estate argued that the auditing judge could award commissions based on the number of years Arthur had served as trustee and based on the information contained in the Final Accounts concerning the trusts’ assets and the transactions that had occurred in the trusts.

Counsel for the surviving trustee presented legal argument regarding the waiver issue, and then called the surviving trustee to testify. The trustee testified that when he had assumed responsibility as co-trustee of the three trusts in 1980, the trust assets were given over to Continental Bank as custodian, and the bank had done all accounting and preparation of tax returns. He stated that he and Arthur had had conversations and meetings regarding the trusts, but that Arthur had not done anything to benefit the trusts in the years from 1980 to 1989. Rather, the surviving trustee stated that he had to argue with Arthur to restrain him from continuing to maximize income to the detriment of principal appreciation in the trusts. The surviving trustee did not testify as to any events occurring prior to 1980, when Arthur was the sole trustee of the Samuel and Ada Salus trusts, other than to recognize that Arthur and appellants had disagreements concerning the administration of the trusts prior to that date.

Shortly after the hearing, the trial court entered adjudications in which it determined that Arthur had not waived his right to terminal commissions on any of the trusts and that Arthur’s estate was due the following terminal commissions:

Samuel S. Salus Trust $14,000
Ada R. Salus Trust $10,000
Arthur W. Salus Trust $ 1,000

Thus, the trial court awarded a total of $25,000, representing a reduction of the amount claimed by the estate of $10,638. Exceptions to the court’s adjudications were filed by appellants. These exceptions were denied and the trial court’s adjudications affirmed by orders of an en banc panel of the Orphans’ Division on November 18, 1991. This timely appeal followed.

Compensation to trustees is expressly permitted by statute in this Commonwealth, as follows:

(a) When allowed.—The court shall allow such compensation to the trustee as shall in the circumstances be reasonable and just, and may take into account the market value of the trust at the time of the allowance, and calculate such compensation on a graduated percentage.
(b) Allowed out of principal or income.—The fact that a fiduciary’s service has not ended or the fact that the trust has not ended or the fact that the trust is perpetual shall not be a bar to the fiduciary’s receiving compensation for his services out of the principal of the trust. Whenever it shall appear either during the continuance of a trust or at its end, that a fiduciary has rendered services for which he has not been fully compensated, the court having jurisdiction over his accounts shall allow him such original or additional compensation out of the trust income or the trust principal or both, as may be necessary to compensate him for the services theretofore rendered by him. The provisions of this section shall apply to ordinary and extraordinary services alike.
(c) Compensation prescribed by will or other instrument.— Where the compensation of a fiduciary is expressly prescribed either by provisions of a will or deed of trust or other instrument under which he is acting or by provisions of an agreement bétween him and the creator of the trust, nothing in this section shall change in any way the rights of any party in interest or of the fiduciary.

20 Pa.C.S.A. § 7185 (1975 & Supp.1992-93).

The Supreme Court has stated the general principles applicable to trustee compensation as follows:

We begin with the established principle that fiduciaries in this Commonwealth are entitled to fair and just compensation for services they perform, Williamson Estate, 368 Pa. 343, 82 A.2d 49 (1951); Kennedy Trust, 364 Pa. 310, 314, 72 A.2d 124, 126 (1950), a rule required by statute, 20 Pa.C.S.A. § 7185. Thus the absence of any compensation provision in a trust document or the absence of any independent compensation agreement is not a bar to compensation. Reed Account, 467 Pa. 371, 376, 357 A.2d 138, 140-41 (1976); Bosler’s Estate, 161 Pa. 457, 462, 29 A. 57, 60 (1894); Restatement (Second) of Trusts § 242 (1959). Rather it is presumed that fiduciaries will receive reasonable compensation for their services.

To be sure, the compensation claimed by a fiduciary must be based on services actually performed and not on some arbitrary formula. Breyer Estate, 475 Pa. 108, 119, 379 A.2d 1305, 1311 (1977) (burden on fiduciary to show reasonableness of claim and absence of prior payment). And, at least in the absence of a prior valid compensation agreement, when claims for compensation are presented to the orphans’ court it has always been the responsibility of the auditing judge to allow only such fees as are reasonable given the nature and extent of the fiduciary’s service. Nevertheless, the determination of what compensation is fair and just in a particular case is a task we have consistently and necessarily left to the sound discretion of the chancellor. Id. at 119, 379 A.2d at 1311; Thompson Estate, 426 Pa. 270, 278, 232 A.2d 625, 629 (1967); Wallis Estate, 421 Pa. 104, 110, 218 A.2d 732, 735 (1966).

In re Ischy Trust, 490 Pa. 71, 415 A.2d 37, 42-43 (1980) (emphasis added); In the Matter of Indenture Agreement of Charlotte S. Lawson, 414 Pa.Super. 550, 607 A.2d 803, 805 (1992) (right of trustee to compensation upon termination of trust is well established).

It has also been recognized that a trustee may, either expressly or by conduct or omission, waive his prima facie right to compensation upon termination of a trust. In determining whether a waiver has occurred, we must ascertain whether the fiduciary has, either by words or deeds, created a basis for a reasonable belief that compensation will not.be sought, such that a beneficiary may rely on such a belief. In re Ischy Trust, 490 Pa. at 81, 415 A.2d at 43. Moreover, the conclusion of the trial court regarding whether a waiver has occurred is a conclusion of law as to which our review is plenary. Id.

In the instant ease, appellants argue that Arthur Salus waived his right to commissions upon termination of the three trusts by failing to seek payment of commissions at any time during his actual administration of the trusts, particularly in connection with the 1980 accounts filed as to the Samuel and Ada trusts, and by failing specifically to include provisions regarding the payment of commissions in the Family Agreement executed in 1980. The trial court found neither failure constituted a waiver of a right to future principal commissions on termination of the three trusts. We agree.

A similar argument was made in Ischy Trust, supra. There, beneficiaries of two trusts objected to the trustee’s claim for a termination fee on principal and for a distribution fee on income. The beneficiaries and the trustee had previously disagreed on the trustee’s handling of the trusts and the trustee had, pursuant to order of the Orphans’ Court, furnished the beneficiaries with informal accounts of the trusts. No claim for commissions appeared in those accounts. After negotiations, the parties entered into a settlement agreement and later agreed to a further memorandum of understanding as to certain of the issues that had arisen between them. The parties agreed that both trusts would be terminated, with final distribution of income and principal. Neither document specifically addressed the payment of commissions. Both documents clearly reflected the parties’ understanding that there were certain issues that were still left unresolved between them and that the trustee would, at the time of final distribution, file worksheets reflecting recent transactions in the trusts, to which the beneficiaries had the right to object. When the trustee filed these worksheets, they included claims for income and terminal principal commissions. The beneficiaries objected, contending that the trustee had waived its right to commissions by failing to submit a claim to them in the prior informal accounts or in any of the parties’ agreements.

The Ischy court rejected this argument, stating:

our research reveals no prior case in which the mere failure to express an intention to collect compensation in the future has been sufficient to support a finding of waiver.... Given the established presumption that all fiduciaries are entitled to reasonable compensation for their services and given the on-going nature of the negotiations in this case, the evidence does not, in our view, support the conclusion that the Bank has waived its claim.
A waiver may not be found simply where the fiduciary has not demanded compensation before the usual time for its payment has occurred.

Id. at 81-83, 415 A.2d at 43-44.

We find the instant case closely analogous to Ischy in regard to the waiver issue. Here, as in Ischy, appellants are attempting to attribute to the trustee’s actions a legal significance that they do not have. Arthur’s failure to seek payment of a commission in connection with the first accounts filed with regard to the Samuel and Ada trusts in 1980 does not indicate an intent to waive the right to future payment of a commission on the termination of those trusts, which did not occur until nine years later when Arthur died. Equally, the Family Agreement executed in 1980 contains no mention of the question of terminal commissions, either as to the extant Samuel and Ada trusts, or as to the Arthur trust created pursuant to the Agreement. Moreover, there is no evidence outside of the Agreement that the Agreement was intended to foreclose the possibility of payment of terminal commissions.

Appellants counter that this case is more analogous to Scull’s Appeal, 249 Pa. 57, 94 A. 476 (1915), wherein the trial court found a waiver of commissions and the Supreme Court affirmed. In Scull’s Appeal, the trustee failed to claim commissions on any prior income distributions from the trust. Furthermore, the trustee had failed to claim any commissions either when the balance of the settlor’s estate, of which the trustee was also the executor, had been distributed, or when the trust had been established. Given this consistent failure to claim commissions, despite the fact that such commissions could have been claimed at the time of each distribution, the trial court concluded that the trustee had waived his right to claim a commission on the final distribution of the principal. The Supreme Court affirmed, without discussion of the legal principles applicable to a finding of waiver.

We do not find Scull’s Appeal analogous to this case because, as the trial court reasoned, Scull’s Appeal involved a trustee who, as executor of the settlor’s estate, had previously distributed the entire principal of the settlor’s estate except for the trust assets, but had not sought a commission from principal at the time of that distribution. Those facts are not at all comparable to the case before us, in which the trustee had never made a distribution of principal as to which he failed to claim a commission.

In addition, cases decided by our Supreme Court much more recently than Scull’s Appeal make it clear that even where a trustee has a right to claim interim compensation from the principal of a trust during the term of the trust, the trustee’s failure to make that claim alone does not demonstrate that the trustee has waived his future right to terminal compensation from principal when the trust ends. See also In Re Account of Reed, 467 Pa. 371, 378, 357 A.2d 138 (1976); In Re Coulter’s Estate, 379 Pa. 209, 108 A.2d 681 (1954). Certainly Arthur’s failure to claim commissions at the time of prior income distributions cannot be construed to be a waiver of Arthur’s future right to claim commissions from principal at the termination of the trusts when the principal was to be distributed.

We find no evidence of conduct by Arthur that would have led appellants to a justifiable belief that he, by his estate, would not claim entitlement to a terminal commission. The trial court did not err in so finding.

The second and final issue on appeal concerns the estate’s right to be paid terminal commissions despite the estate’s failure to submit evidence of the services Arthur performed in addition to the evidence the trial court already had in the form of the final trust accounts themselves. Appellants argue that the estate had the burden of producing specific evidence of the precise services rendered by Arthur during his long tenure as trustee, and that in the absence of such proof, the estate should be awarded no terminal commissions. Appellants also point to the fact that the co-trustee, who was first appointed in 1980, testified that Continental Bank performed administrative duties relative to the trusts beginning in 1980, and Arthur did not render substantial services to the trusts after that time. Lastly, appellants argue that since Arthur was mainly interested in producing income for his own benefit as income beneficiary, any services he did render as trustee were of no value to the trusts and do not merit compensation.

Appellee counters that the final trust accounts themselves provide sufficient evidence of the services Arthur rendered, in that they reveal the number of years Arthur shouldered the responsibility of being a fiduciary for the three trusts, the investment activity in the trusts, the income distributions made and the nature and amount of assets held. Appellee further argues that no other more specific evidence of Arthur’s services exists, in that Arthur is deceased and cannot testify, and the estate has no knowledge of any time records of the services Arthur provided to the. trusts over the years.

As to this issue, our standard of review differs from that applicable to a review of the trial court’s legal conclusion regarding waiver. In determining whether the trial court erred in fixing the amount of the trustee’s compensation, we may reverse only if we find that the trial court has abused its discretion or committed palpable error. Estate of Sonovick, 373 Pa.Super. 396, 541 A.2d 374, 376 (1988).

In deciding this issue, we are confronted with two legal principles that at first glance appear to be in conflict, but which are actually easily reconciled. The first principle is that a trustee has a prima facie right to be paid a just and reasonable fee for his services and, specifically, to be paid a termination fee. See Ischy, supra; Lawson, supra. The second principle is that a trustee has the burden of proving what services he rendered in order to establish that the amount he is claiming is just and reasonable compensation. A panel of this court has recently stated these principles as follows:

A fiduciary is entitled to ‘reasonable and just’ compensation for the services he provides. Thus, the fiduciary’s entitlement to compensation should be based upon actual services rendered and not upon some arbitrary formula.... [T]he trial court is empowered to determine the value of the fiduciary’s services and award reasonable compensation. Logically, the court also has the authority to reduce to a “reasonable and just” level those fees and commissions claimed by the fiduciary and her counsel.... “It is fundamental that an attorney seeking compensation from an estate has the burden of establishing facts which show that he or she is entitled to such compensation.” Likewise, a fiduciary bears the burden of proving the reasonableness of his or her commissions.

Estate of Sonovick, 373 Pa.Super. 396, 541 A.2d 374, 376 (1988) (citations omitted).

The question that arises from the interplay of these principles is whether, in a case where a trustee does not submit proof of the precise services he rendered in order to show that the compensation he has requested is just and reasonable, is it an abuse of discretion or error of law for the trial court nevertheless to award the trustee a reduced level of compensation based on the court’s own independent review of the information concerning the history and nature of the trusts contained in the final trust accounts. We conclude, as did the trial court, that it is well within the trial court’s discretion to make such an award.

A similar situation was presented in Estate of Sonovick, supra. There, as here, the executrix/trustee submitted a claim for compensation, but did not submit any evidence as to what work had been performed or as to how the requested amount of compensation was calculated. However, the trial court did have before it the trust accounts. The trial court reviewed those accounts and awarded the executrix/trustee a substantially reduced commission based on that review. In affirming, the Sonovick panel stated:

[W]e hold that upon review of the trust and estate accountings, the trial court could reasonably determine the appropriate amount of compensation to be paid to the appellant ... for [her] services.

Id. at 399, 541 A.2d at 376.

Thus, we conclude that although a trustee who seeks a certain level of compensation does have the burden of demonstrating that the amount requested is just and reasonable, if the trustee fails to come forward with specific records substantiating the amount requested, that alone does not mean that the trustee must be awarded no compensation at all. If, as in Sonovick and the instant case, the trial court has before it trust accounts that provide evidence of the size and complexity of the trust estate and of the transactions involving the trust’s assets that took place during the trustee’s tenure, then the court can fashion an award of just and reasonable compensation and we will not reverse that award, unless we find that it is based upon an abuse of discretion.

We find no such abuse here. The trial court did not simply accept the amounts requested by the estate, but conducted an independent review of the trust accounts and determined, based on the size and activity in the trusts and the long tenure of Arthur as trustee, that a reduced amount of compensation was due. As we have indicated above, the total amount claimed by the estate was approximately $36,000 and the amount awarded was $25,000, representing a reduction of almost $11,000 or approximately 30%.

We are not persuaded by appellants’ argument that the trial court erred in awarding the estate any compensation because Arthur allegedly did not perform substantial services for the trusts after 1980 when the co-trustee was appointed. The argument completely ignores the undeniable fact that Arthur did render services as the sole trustee of the Samuel trust for thirty five years, and as sole trustee of the Ada trust for sixteen years. Moreover, this record does not contain evidence indicating that Arthur performed no services for any of the three trusts after 1980, in that the only testimony offered was that of the co-trustee, who indicated that he and Arthur did have meetings and conversations regarding the trusts in the period from 1980 until 1989 when Arthur died.

We are equally unpersuaded by appellants’ further argument that the estate is due no compensation because any services that Arthur did render were of no value to the trusts. First, we rely heavily on the judgment of the trial court, who independently reviewed the trust accounts and who determined that although the amount of commissions claimed by the estate was excessive, nonetheless Arthur’s services as trustee over the long life of these trusts did have some compensable value. We add that there is no proof in this record of wrongdoing by Arthur in the course of his service as either sole or co-trustee. Moreover, we note that all of appellants’ complaints regarding Arthur’s management of the Samuel and Ada trusts up to 1980 were resolved by the Family Agreement, in which appellants recited that they had no legal objections to the accounts Arthur had filed as to those trusts in 1980, and in which they further released Arthur from any and all claims arising from Arthur’s acts as sole trustee.

We find no error of law in the trial court’s conclusion that Arthur did not waive his right to terminal commissions for his services to the three trusts, and we find no abuse of discretion in the trial court’s award of a total of $25,000 in terminal commissions to Arthur’s estate.

The orders of the trial court in each of the three trusts are affirmed.

      . There is no dispute that in this case, none of the trust documents address the subject of trustee compensation, nor are there any independent agreements concerning this subject.