author: TAMILIA, Judge:

text:
    640 A.2d 911
    COMMONWEALTH of Pennsylvania, v. Glenn A. ORRS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 28, 1994.
    Filed April 12, 1994.

      Linda F. Gerencser, Asst. Public Defender, Lancaster, for appellant.
    Joseph C. Madenspacher, Dist. Atty., Lancaster, for Com., appellee.
    Before OLSZEWSKI, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

Appellant, Glenn A. Orrs, Jr., appeals from the judgment of sentence imposed September 10, 1993, following a guilty plea to retail theft. On March 11, 1993, he was arrested for stealing a pack of cigarettes from a local convenience store, which was a parole violation resulting in appellant’s subsequent incarceration in the Lancaster County Prison. Following a period of approximately five months’ imprisonment, appellant and the Commonwealth agreed to a negotiated plea bargain. Pursuant to both written and open court colloquies, the trial court accepted the plea and sentenced appellant to time served to twenty-three (23) months’ imprisonment.

On appeal to this Court, appellant argues the sentence imposed was illegal because the court lacked jurisdiction. The retail theft statute, in relevant part, states:

§ 3929. Retail Theft
(a) Offense defined. — A person is guilty of a retail theft if he:
(1) takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof.
(b) Grading.—
(1) Retail theft constitutes a:
(i) Summary offense when the offense is a first offense and the value of the merchandise is less than $150.
(iv) Felony of the third degree when the offense is a third or subsequent offense, regardless of the value of the merchandise.

18 Pa.C.S. § 3929(a)(1) and (b)(l)(i), (iv). Appellant contends that since no specific averments of prior offenses of retail theft were contained in the information, his crime was wrongfully graded as a felony, when it should have been treated as a summary offense.

An indictment charging retail theft “must contain the information that there have been prior offenses, not only to put defendant on notice that he is being charged with a felony and, therefore, may be sentenced accordingly, but also to establish the jurisdiction of the Common Pleas Court.” Commonwealth v. Coleman, 289 Pa.Super. 221, 433 A.2d 36 (1981). Presently, the Commonwealth, in both the information and criminal complaint, cited the appropriate statute and appropriate grading — “Retail Theft, 18 P.S. 3929-F3”. “The information should be read in a common sense manner, rather than being construed in an overly technical sense.” Commonwealth v. Badman, 398 Pa.Super. 315, 580 A.2d 1367 (1990). Clearly, the notation “F3” put appellant on notice of the felony charge. Read in a “common sense manner,” the information plainly “inform[s] the accused of the crime with which he is being charged” while unquestionably establishing the jurisdiction of the court. Id. at 324, 580 A.2d at 1371.

The failure to specify in the information the crimes previously committed, establishing the basis for charging a felony three, does not affect the jurisdiction of the court to hear the case and convict as a felony, third degree. Prior offenses need not be proven at the preliminary hearing or at trial in order to establish the appropriate grading of such offense for which the accused may be tried. The accused need only be placed on notice that the Commonwealth will seek a third degree felony sentence in the event of conviction. Commonwealth v. Harvin, 346 Pa.Super. 575, 500 A.2d 98 (1985). Hence, the requisite notice and averment of a third degree felony having been contained in the information and complaint, jurisdiction to hear the matter or to accept a guilty plea clearly was present. The prior offenses in grading retail theft do not constitute substantive elements of the offense (felony third degree, Retail Theft); as such, evidence only may be produced at sentencing for purposes of grading the crime under subsection (b), Grading.

While we agree with appellant that generally, a plea of guilty amounts to a waiver of all defects and defenses except those concerning the jurisdiction of the court, legality of sentence and validity of the guilty plea, Commonwealth v. Reichle, 404 Pa.Super. 1, 589 A.2d 1140 (1991), here the plea bargain agreement was based on the fact that the information did not contain a specific written allegation regarding whether this was a second or third offense (N.T., 9/1/93, pp. 2-4). In light of this missing documentation, the Commonwealth agreed to and the court accepted a sentence which substantially departed from the standard guidelines. Id. Although retail theft, graded as a felony of the third degree, calls for a maximum penalty of seven years in prison and a $15,000 fine, appellant was sentenced to a minimum of time served (approximately five months) and paroled immediately. In addition, during the open court colloquy, appellant responded affirmatively to the court’s statement that, by pleading guilty, his appellate rights regarding the issue of proper grading would be foreclosed. Since the previous crimes were not substantive elements of the crime charged, appellant could waive presentation of evidence concerning those crimes.

Where, as here, the court agreed to accept a negotiated plea, and the defendant was fully apprised that the considerable reduction in possible sentence was granted because of the Commonwealth’s failure to state specifically the prior retail theft charges which formed the basis for the felony three charge, waiver is affirmatively implicated. The following colloquy was conducted by the court with appellant:

THE COURT: Specifically, did you explain to him that as to the issue as to whether this is properly graded an F-3 or a summary, that it’s going to waive any right to litigate that on appeal as well?
MR. GLASSMAN: Yes, Your Honor, I’ve explained that this would waive his appeal rights on that issue. And I’ve explained to him that his entering into a guilty plea agreement which would result in a conviction in this Court of Common Pleas would leave him open to relocation by the Earole Board.
I’ve explained to him that the Commonwealth may have arguments that I did not see detailed — expressed in detail in the case law that I found, although I did see Mr. Orrs’ points, which I felt were legitimate, in his analogizing his case with those that he had researched, which I corroborated with research in the law books.
And so I felt that the case law that Mr. Orrs and I have found in defense — I did not see that those cases necessarily addressed the case where — Mr. Hackman’s position for the Commonwealth, where both the criminal complaint and the information, on its face, had the denomination F-3, but otherwise had no other indications. Whereas the case law that I had read did not indicate whether those cases had gone as far as to put an F on that information.
THE COURT: Well, does he understand that he, by pleading guilty, is foreclosed from raising the issue again?
MR. GLASSMAN: Do you understand that, Mr. Orrs?
THE DEFENDANT: Yeah.
THE COURT: Okay. All right. Mr. Orrs, you are charged with retail theft, graded a felony of the third degree, which calls for a maximum penalty of seven years in prison and a $5,000 fine.
MR. GLASSMAN: $15,000, I believe.
THE COURT: $15,000 fine. Do you understand—
THE DEFENDANT: Yes, I do.

(T.T., 11/3/93, pp. 4-5.)

Accordingly, we find the court had jurisdiction and the sentence of time served (five months) to 23 months reflected a bargained sentence that clearly evidenced on the record appellant’s desire to waive for purposes of appeal any technical defenses to the sentence he might have.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 3929(a)(1).


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    640 A.2d 914
    COMMONWEALTH of Pennsylvania, Appellant, v. Douglas JONES, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1993.
    Filed April 15, 1994.

      Peter J. Gardner, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Isla A. Fruchter, Philadelphia, for appellee.

      Before ROWLEY, President Judge, McEWEN and KELLY, JJ.
   KELLY, Judge.

The Commonwealth of Pennsylvania asks this Court to vacate appellee’s judgment of sentence and remand for resentencing by a different judge. On March 4, 1993, following remand from the Superior Court for resentencing, the Honorable Lisa A. Richette resentenced appellee, Douglas Jones, to the same term of eighteen to sixty months incarceration for voluntary manslaughter, with a concurrent term of six to twelve months for possession of an instrument of crime. We affirm judgment of sentence.

We set forth the relevant facts and procedural history accordingly. This case involves a fratricide. In March, 1991, appellee stabbed his half-brother, Edward Shelton, with a kitchen knife, at home, during the course of a heated argument. A jury acquitted appellee of murder but found him guilty of voluntary manslaughter and possession of an instrument of crime.

On February 4, 1992, Judge Richette, who had presided at appellee’s trial, conducted a sentencing hearing. The court listened to the special circumstances of the case, including the aggressive nature and provocative behavior of the victim, the undeniably profound remorse of appellee, the pleas for mercy from the mother of both appellee and victim, as well as all factors attendant to the sentencing process, such as the presentence report and the prosecution’s request for the deadly weapon enhancement. At the close of this first sentencing hearing, the court sentenced appellee to a term of incarceration of eighteen to sixty months, with a concurrent sentence of six to twelve months for possession of an instrument of crime.

The Commonwealth appealed the judgment of sentence, arguing that the trial court erred by failing to apply the deadly weapon enhancement to the sentencing guidelines for voluntary manslaughter, and failing to go on record stating why the court was departing from the guidelines. This Court agreed, vacated the judgment of sentence, and remanded for resentencing, stating that the enhanced mitigated range of thirty to forty-eight months applied in this case; therefore, the trial court was required to set forth its reasons on record for deviating from the guidelines. See Commonwealth v. Jones, 427 Pa.Super. 643, 625 A.2d 90 (1992).

On remand, the trial court reimposed the same sentence. This time the trial court acknowledged the existence of the deadly weapon enhancement, the resulting increased sentencing ranges and gave its reasons for reimposing the same sentence of eighteen to sixty months for the voluntary manslaughter conviction. During this second sentencing hearing, the prosecution again insisted on the mandatory nature of the deadly weapon enhancement. The trial court maintained that the actual sentence was still within its discretion, despite the enhancement. The prosecution announced its intention to appeal the second judgment of sentence. Hence, this timely appeal followed.

The Commonwealth raises these challenges to appellee’s judgment of sentence on remand:

1. DID THE SENTENCING COURT ERR IN REFUSING TO APPLY THE DEADLY WEAPON ENHANCEMENT PROVISION OF THE SENTENCING GUIDELINES TO DEFENDANT’S VOLUNTARY MANSLAUGHTER CONVICTION WHERE DEFENDANT KILLED HIS BROTHER BY STABBING HIM IN THE CHEST?
2. DID THE SENTENCING COURT ERR IN FAILING TO ARTICULATE REASONS FOR ITS DEVIATION FROM THE GUIDELINES?
3. CAN A SENTENCING COURT INSULATE A PATENTLY ERRONEOUS REFUSAL TO APPLY THE DEADLY WEAPON ENHANCEMENT FROM APPELLATE REVIEW BY CLAIMING IN ITS OPINION THAT, AT THE SAME TIME IT WAS INSISTING IN OPEN COURT THAT IT REJECTED THE ENHANCEMENT, IT WAS SECRETLY APPLYING THE ENHANCEMENT ON A GUIDELINE SENTENCE FORM?
4. SHOULD A CASE BE REMANDED TO A DIFFERENT JUDGE FOR RESENTENCING WHEN THE LOWER COURT HAS MADE CLEAR THAT, BECAUSE OF ITS PERSONAL DISAGREEMENT WITH THE DEADLY WEAPON ENHANCEMENT, IT WILL REFUSE TO IMPARTIALLY APPLY THE ENHANCEMENT?

Commonwealth’s Brief at 2.

The sentencing function is a matter vested in the trial court’s sound discretion which remains undisturbed on appeal in the absence of an abuse of that discretion. Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992) (en banc), appeal denied, 535 Pa. 576, 629 A.2d 1377 (1993). On review, we accord the sentencing court great weight “as it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference and the overall effect and nature of the crime.” Id., 418 Pa.Super. at 101, 613 A.2d at 591. Where the statute under which a conviction lies carries no specified penalty, the Court must consider and select one or more of the sentencing alternatives available: probation, determination of guilty without penalty, partial or total confinement and/or fines. 42 Pa.C.S.A. § 9721(a), (a.1); Commonwealth v. Bedleyoung, 319 Pa.Super. 323, 331, 466 A.2d 180, 184 (1983).

The general principle underlying the imposition of a sentence calls for the balancing of public protection, the gravity of the offense and, particularly, the rehabilitative needs of the defendant. 42 Pa.C.S.A. § 9721(b); Commonwealth v. Ennis, 394 Pa.Super. 1, 574 A.2d 1116 (1990); Commonwealth v. Bedleyoung, supra. The only constraints placed on the court’s discretion in sentencing matters are that the sentence imposed must be within the statutory limits; the record must show that the court considered the sentencing guidelines in light of the above balancing standard; and, if the court deviates from the sentencing guidelines, the record must demonstrate a contemporaneous statement of reasons for the departure. Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990); Commonwealth v. Stalnaker, 376 Pa.Super. 181, 545 A.2d 886 (1988). The requirement of a contemporaneous statement explaining any deviation from the sentencing guidelines is satisfied when the sentencing judge states the reasons on the record in the defendant’s presence. Commonwealth v. Munson, 419 Pa.Super. 238, 615 A.2d 343 (1992); Commonwealth v. Clever, 395 Pa.Super. 192, 576 A.2d 1108 (1990). Although the sentencing guidelines do specify definite ranges of sentences, the adoption of the guidelines was not intended by the legislature to trump judicial discretion in the sentencing process. Commonwealth v. Murphy, supra; Commonwealth v. Minott, supra.

The Commonwealth complains that the trial court steadfastly refused to apply the deadly weapon enhancement of the sentencing guidelines to appellee’s voluntary manslaughter conviction. On remand from this Court, asserts the Commonwealth, the trial judge was instructed to apply the deadly weapon enhancement to the appropriate range of the sentencing guidelines. To the extent that the application of the enhanced range is mandatory, the Commonwealth is correct. The trial court, however, maintains that the imposition of a sentence within the enhanced range is not mandatory because the guidelines are not mandatory. The trial court proposes that it retains the discretion to sentence outside the enhanced range, where the circumstances compel a different sentence; and the sentence which is imposed is subject to review only as to whether that sentence is reasonable. We agree.

As an agency of the General Assembly (42 Pa.C.S.A. § 2151), the Pennsylvania Commission on Sentencing promulgated the sentencing guidelines embodied in 204 Pa.Code § 303.1 et seq. As part of these guidelines, § 303.4 provides:

Deadly weapon enhancement
(a) When the court determines that the defendant possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence range which would otherwise have been applicable.
(b) There shall be no such enhancement for the following offenses: 18 Pa.C.S. § 2702(a)(4) (relating to aggravated assault); the Pennsylvania Uniform Firearms Act, 18 Pa.C.S. §§ 6101-6120; 18 Pa.C.S. § 907 (relating to possessing instruments of crime); 18 Pa.C.S. § 908 (relating to prohibited offensive weapon); for any other offense for which possession of a deadly weapon is an element of the statutory definition; or for any offense which is lesser included to an offense for which possession of a deadly weapon is an element of the statutory definition.
(c) Where there are sentences for crimes arising from the same transaction, the deadly weapon enhancement shall be applied only to the conviction offense which has the highest offense gravity score.

204 Pa.Code § 303.4.

For purposes of this section, “deadly weapon” is defined in 18 Pa.C.S. § 2301 as: “Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.”

204 Pa.Code § 303.4(a) Description. For the purposes of the crimes code, a deadly weapon need not be an inherently lethal device; whether a device is deadly can be governed by how the device was used. Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992).

Under the sentencing guidelines, a conviction for voluntary manslaughter carries an offense gravity score of “8,” see 204 Pa.Code § 303.8. In conjunction with a prior record score of “0,” the guidelines suggest the following sentencing ranges:

Standard Range: 24-48 months
Aggravated Range: 48-60 months
Mitigated Range: 18-24 months

204 Pa.Code § 303.9. Pursuant to the deadly weapon enhancement provision, id. § 303.4, the suggested adjusted sentencing ranges are:

Standard Range: 36-60 months
Aggravated Range: 60-84 months
Mitigated Range: 30-48 months

Once a court has determined that a defendant possessed a deadly weapon, as defined in 18 Pa.C.S.A. § 2301, during the commission of a crime, the court must increase the suggested sentencing ranges by at least twelve to twenty-four months as demonstrated above. Commonwealth v. Bowen, supra; Commonwealth v. Cornish, 403 Pa.Super. 492, 589 A.2d 718 (1991); Commonwealth v. Burns, 390 Pa.Super. 426, 568 A.2d 974 (1990), appeal denied, 525 Pa. 616, 577 A.2d 888 (1990). The trial court lacks the discretion to refuse to apply the deadly weapon sentencing enhancement. Commonwealth v. Bowen, supra. The court’s discretion comes into play when it is time to impose a sentence, once the court determines the adjusted sentencing guideline range. Id. (quoting Commonwealth v. Dotzman, supra, 403 Pa.Super. at 334, 588 A.2d at 1317). Although we may affirm a sentence outside the guidelines, the sentencing court must determine the correct starting point in the guidelines before sentencing outside the guidelines. Commonwealth v. Johnakin, 348 Pa.Super. 432, 502 A.2d 620 (1985). However, the guidelines as a whole are not mandatory; the guidelines need only be considered and consulted. Commonwealth v. Brown, 415 Pa.Super. 534, 609 A.2d 1352 (1992). Thus, the sentencing judge may depart from the guidelines, once the deadly weapon enhancement is applied, so long as the court provides an adequate explanation for the departure. Id. Application of the deadly weapon enhancement is mandatory, therefore, only to the extent of establishing a correct point of departure for sentencing. Commonwealth v. Pokorny, supra; Commonwealth v. Septak, 359 Pa.Super. 375, 518 A.2d 1284 (1986). In cases where the sentencing court refuses to apply the deadly weapon enhancement, assuming it applies, and erroneously calculates the starting point under the sentencing guidelines, this Court will vacate the sentence and remand for sentence reconsideration. Commonwealth v. Scullin, 414 Pa.Super. 442, 607 A.2d 750 (1992).

On appeal from the first judgment of sentence, this Court vacated judgment of sentence and remanded for sentence reconsideration because the sentencing court had refused to apply the deadly weapon enhancement to the voluntary manslaughter conviction, had sentenced appellant to eighteen to sixty months incarceration for the voluntary manslaughter conviction, and had stated that the sentence fell somewhere between the mitigated and the standard sentencing ranges. In that posture, the sentencing court had clearly miscalculated the sentencing ranges applicable to the case at bar.

On remand, the sentencing court was instructed to recalculate the sentencing ranges by applying the deadly weapon enhancement under 204 Pa.Code § 303.4. If the sentencing court then decided to reimpose the same sentence as before, the court would have to state it reasons on the record for deviating from the adjusted guidelines. See Commonwealth v. Jones, 427 Pa.Super. 643, 625 A.2d 90 (1992).

At the second sentencing hearing, the prosecution argued that the deadly weapon enhancement was mandatory; the court responded that the sentencing guidelines are not mandatory; defense counsel interposed that the court was required to set forth its reasons for deviating from the enhanced guidelines because, with the enhancement applied, appellee’s minimum sentence is now below the guidelines. Thus, on appeal, we are presented with the peculiar circumstance wherein each position is basically correct, as far as each goes. Further careful review of the second sentencing hearing transcript reveals and expands the fundamental miscommunication among the parties in this case. Ultimately, the sentencing court considered the enhanced ranges; then the court reimposed the same sentence. Notwithstanding the sentencing court’s unfortunate polemic on the purpose of the deadly weapon enhancement and the required “mantra” when deviating from the sentencing guidelines, its grasp of the discretionary aspects of sentencing as a whole is absolutely correct.

When a sentence is vacated and the case is remanded to the sentencing court for resentencing, the sentencing judge should start afresh. Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987). “Reimposing a judgment of sentence should not be a mechanical exercise.” Id. at 206, 535 A.2d at 122. “Given the important nature of the interests involved, the judge at the second sentencing hearing should reassess the penalty to be imposed on the defendant — especially where defense counsel comes forward with relevant evidence which was not previously available.” Id. Thus, [appellee’s] conduct since the prior sentencing hearing is relevant at resentencing. Id. at 208, 535 A.2d at 123. The sentencing judge must take note of this new evidence and reevaluate whether the jail term which [appellee] received is a just and appropriate punishment. Id.

Instantly, the sentencing court reconsidered the factors that prompted its original judgment of sentence. The court noted appellee’s profound remorse, the devastation sustained by the victim’s family who are also appellee’s family, the victim’s and appellee’s mother’s pleas for mercy, the role of the victim in provoking appellee’s criminal conduct, and the passionate nature of the crime. Moreover, the court, at resentencing, heard evidence demonstrating that appellee had already completed, without incident, his minimum term of eighteen months incarceration; and, since his release, appellee has complied with all of his probation/parole obligations in a timely manner and all tests have been negative for drugs and alcohol. There have been no complaints from the community. Additionally, appellee is attending school and maintains a “B” average. Finally, appellee conscientiously participates in family psychotherapy. The Commonwealth presented no contradictory evidence whatsoever.

In essence, the Commonwealth was actually arguing for an increased sentence. The trial court saw no just reason to reincarcerate appellee. Therefore, the court imposed the same sentence. The court noted, “This sentence is a sentence with a long tail. [Appellee] is under supervision. If he does anything wrong, he will be right back in jail.” (N.T. March 4, 1993 at 13). What the sentencing court rejected was the Commonwealth’s insistence that, even in view of the circumstances of this case, the court must resentence appellee within the enhanced guideline range. Such was not the directive from this Court on remand. The sentencing court retained the discretion to resentence appellee to the same sentence. See Commonwealth v. Minott, supra. The reasons for the court’s decision were aptly stated in the record. See Commonwealth v. Munson, supra. We hold, therefore, that the sentencing court observed the procedural requirements of the sentencing process, see Commonwealth v. Losch, supra, and did not abuse its discretion by imposing the same sentence on remand. Accordingly, we affirm judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 2503(a)(1).

      . 18 Pa.C.S.A. § 907.

      . We distinguish the sentencing guidelines’ deadly weapon enhancement provision from those mandatory minimum sentencing provisions set forth in 42 Pa.C.S.A. § 9712 et seq., which the court must impose, if applicable, when the prosecution invokes the particular statutory enhancement provision. For example, when a person visibly possesses a firearm during the commission of an enumerated offense, 42 Pa.C.S.A. § 9712(a) mandates a minimum five-year sentence of total confinement; where a person commits an enumerated offense in or near public transportation, 42 Pa.C.S.A. § 9712(a) mandates a minimum five-year sentence of total confinement; where a person is a violent crime repeat offender, 42 Pa.C.S.A. § 9714(a) mandates a minimum five-year sentence of total confinement; 42 Pa.C.S.A. § 9715(a) mandates life imprisonment for a third-degree murder conviction where there exists in the record a prior conviction for murder or manslaughter; 42 Pa.C.S.A. § 9717(a) provides mandatory minimum sentences where the offense has been committed against an elderly person as defined in that statute; 42 Pa.C.S.A. § 9718(a) sets forth mandatory minimum sentences for crimes against infant persons as defined therein; 42 Pa.C.S.A. § 9719(a) defines the mandatory minimum sentences for offense committed while impersonating a law enforcement officer. Other statutory sentencing enhancements appear in drug trafficking offenses, 18 Pa. C.S.A. § 7508, and in motor vehicle related offenses, 75 Pa.C.S.A. § 3731(e).
      With regard to the mandatory minimum sentence provisions, the sentencing court cannot go below the mandatory minimum sentence set forth in the statutes. In contrast, the sentencing guidelines are not statutorily mandated minimum sentences for imposition purposes and the sentencing court retains the discretion to sentence below the minimum enhanced range, provided the court sets forth its reasons for doing so. See Commonwealth v. Murphy, 405 Pa.Super. 452, 592 A.2d 750 (1991); Commonwealth v. Minott, infra.

      . At the outset, we note, the Commonwealth's brief complies with Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Under Commonwealth v. Bowen, 417 Pa.Super. 340, 612 A.2d 512 (1992), appeal denied, 533 Pa. 629, 621 A.2d 577 (1993), a sentence challenged as inappropriate under the sentencing code because the trial court allegedly refused to apply the deadly weapon enhancement raises a substantial question regarding the discretionary aspects of sentencing. Accord Commonwealth v. Brown, 415 Pa.Super. 534, 609 A.2d 1352 (1992); Commonwealth v. Reading, 412 Pa.Super. 239, 603 A.2d 197 (1992); Commonwealth v. Batterson, 411 Pa.Super. 252, 601 A.2d 335 (1992); Commonwealth v. Dotzman, 403 Pa.Super. 325, 588 A.2d 1312 (1991); Commonwealth v. Pokorny, 360 Pa.Super. 384, 520 A.2d 511 (1987). The determination of whether the particular issue raised constitutes a substantial question is evaluated, nevertheless, on a case by case basis. Commonwealth v. McFarlin, 402 Pa.Super. 502, 587 A.2d 732 (1991) (en banc), affirmed, 530 Pa. 167, 607 A.2d 730 (1992); Commonwealth v. Minott, supra.

      . See prefatory note to the Sentencing Guidelines set forth for the user's convenience immediately after 42 Pa.C.S.A. § 9721 (the sentencing guidelines are not enacted as part of 42 Pa.C.S.A. § 9721; courts are required to consider the guidelines when sentencing on offenses which occurred on or after April 25, 1988).

      . The legislature has required by statute that the guidelines “Specify a range of sentences of increased severity for defendants who possessed a deadly weapon during the commission of the current conviction offense.” [42 Pa.C.S. § 2154(a)(2)].
      Possessing a weapon during a crime increases the fear of the victim and increases the risk of injury to victims and to law enforcement officers. Defendants who commit such crimes are more culpable than if they had not possessed a weapon. This fact is recognized by the legislature and the commission and is the reason why possession of a deadly weapon is given such great weight in computing the suggested guideline sentence ranges.
      The enhancement provides a uniform increment of 12 to 24 months regardless of the offense gravity score of the conviction offense. The commission reasoned that the lethal potential of a deadly weapon, and its impact on the victim did not depend on the offense committed (for example, a handgun in a simple assault was capable of inflicting as much fear and injury as a handgun in a robbery).
      The length of the enhancement range — 12 to 24 months — was chosen to reflect the commission’s view of the gravity of possessing a weapon in any crime....
      204 Pa.Code § 303.4 Commentary-

      . At the first sentencing hearing, the court stated that it saw no justification for sentencing appellee "outside the guidelines completely." (N.T. February 4, 1992 at 11). The Commonwealth has interpreted this statement to mean that the court intended to sentence appellee within the guidelines and seeks to hold the sentencing court to that interpretation. First, the court’s commentary may be subjected to other interpretation. Second, and more importantly, at resentencing, the court starts afresh. See Commonwealth v. Losch, supra.

      . The Commonwealth notes in its statement of reasons for allowance of appeal that the sentence imposed is a full year below the enhanced mitigated range of the sentencing guidelines. However, the Commonwealth must demonstrate a "substantial question” that the sentence imposed was not appropriate before the appellate court exercises its discretion to reach such question. Commonwealth v. Tuladziecki, supra; Pa.R.A.P. 2116. Examination of the Commonwealth’s brief clearly reveals its failure to comply with the statutory requirement under 42 Pa.C.S.A. § 9781(b). Therefore, we are precluded from assessing the merits of the issue of the reasonableness of appellee’s sentence to justify post hoc a determination that a substantial question exists. Commonwealth v. Tuladziecki, supra. Failure to raise the issue of whether a particular sentence, outside the sentencing guidelines, is unreasonably lenient, waives that issue on appeal. Commonwealth v. Tomasso, 506 Pa. 344, 485 A.2d 395 (1984). See also Commonwealth v. Tilghman, 366 Pa.Super. 328, 531 A.2d 441 (1987) (en banc) (the Commonwealth’s claim that the sentencing court applied the guidelines erroneously does not preserve claim that the particular sentence is unreasonably lenient); Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987) (a determination of whether a sentence is inappropriate or unreasonable must be made with reference to the sentencing code as a whole, not solely with reference to the sentencing guidelines, 42 Pa.C.S.A. § 9781(b), (c)).

      . As a practical matter, the sentence imposed on remand is more lenient than the original sentence even though the terms of the sentence remain the same. Whether the sentence is now unreasonably lenient, of course, is not a challenge raised for our consideration. Thus, we render no opinion on that matter.

      . The Commonwealth insists, however, that this Court vacate judgment of sentence and remand for resentencing with instructions to reassign the case to a different sentencing judge because the trial court sentenced pursuant to a predetermined personal policy disfavoring the deadly weapon enhancement. Due to our disposition of the matter before us, we need not reach this issue.


author: BECK, Judge:

text:
    640 A.2d 921
    COMMONWEALTH of Pennsylvania v. Maurice MARTIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1994.
    Filed April 22, 1994.

      Alan G. Goldberg, Lancaster, for appellant.
    John A. Kenneff, Asst. Dist. Atty., Millerville, for Commonwealth, appellee.
    Before CIRILLO, BECK and HOFFMAN, JJ.
   BECK, Judge:

In this appeal from his judgment of sentence for third degree murder, appellant claims that the evidence at trial was insufficient to sustain the conviction. He also claims that the trial court improperly admitted prior bad acts evidence relating to his treatment of the victim. We find no merit to appellant’s contentions and, accordingly, affirm.

Appellant was found guilty by a jury of the murder of four year old James Johnson (“James”), the son of his girlfriend, Deborah Johnson (“Mother”). At trial, the Commonwealth established the following. Appellant lived with Mother, James and the couple’s infant daughter in an apartment in Lancaster. One Friday evening in the summer of 1991, appellant punished James for urinating on the curb outside their home. The form of punishment, which was witnessed by Mother and admitted by appellant, was that James was required to stand on a crate in the couple’s bedroom for a period of at least four hours.

Mother fell asleep that evening while James was still standing on the crate; the next morning she left for work and noticed that James was sleeping in his bed. When she returned from work later that afternoon, she checked on her son, who was still sleeping, and noticed that he was snoring very loudly. James did not awaken at all that evening. Mother was scheduled to work a double shift that evening, starting at 11:00 P.M. Before leaving the apartment at 10:50 P.M., she took her infant to a neighbor because she knew that appellant would be going out later that night. She did not check on her son.

During the night and early morning hours, appellant drove to Coatesville to pick up a friend, Vincent Robinson (“Robinson”), who was to lend him money. When appellant arrived to pick up Robinson, James was lying in the back seat of the car and appeared to be sleeping. Robinson accompanied appellant to Mother’s place of work and then to the Lancaster apartment. Robinson testified that he saw James open his eyes at some point before he entered or was carried into the house. However, in all the time Robinson was in the presence of James, he never saw the boy stand, walk or talk. Others who visited the apartment that night, including a female friend of appellant and a pizza delivery person, did not see or hear James at all. Robinson and appellant went to sleep at 2:00 or 3:00 A.M. At approximately 7:00 A.M., while appellant was still sleeping, Robinson left the apartment. Before leaving, he saw James on the living room couch but could not tell whether the child was breathing.

At approximately 7:40 A.M., appellant telephoned Mother at work and asked if she would like him to buy her some food for lunch. Mother replied that she did not want him to buy her food. Despite this fact, appellant claimed, he took both children to the supermarket at 8:00 A.M. in order to purchase food for Mother. Once there, claimed appellant, he entered the store with his infant daughter in his arms and left James in the car. When he returned from the store, James was gone and appellant reported his disappearance to police.

Several witnesses were in the parking lot at the time appellant was there. A fireman, who was sitting in his fire truck at the time, did not see a child wandering around in the lot, nor did he see an adult with a four year old child. An employee of the store, who was sweeping out front, testified that she saw appellant enter the store with an infant in his arms, that less than five (5) minutes later appellant exited the store, approached her, and asked if she had seen a young boy. A Commonwealth re-creation of the events established that from his vantage point at the front of the store, appellant could not see into his car to know whether or not James was in the car. Appellant was interviewed on several occasions by police regarding the disappearance of James. His statements to police contained factual inconsistencies as well as denials, then admissions, about disciplining James that weekend. Ultimately, he was arrested and charged with the child’s murder.

The Commonwealth’s theory of the case was that appellant hit James in the head on Friday night, causing a subdural hematoma which resulted in his death. Appellant then disposed of the body and claimed that James was either taken or wandered off froni the supermarket parking lot. To prove its case, the Commonwealth offered the testimony of a neurosurgeon who explained that the sleeping patterns exhibited by James were consistent with those of a person suffering from a subdural hematoma. In particular, the surgeon testified that the victim would lapse into a coma over the period of a few days and that the loud snoring heard by Mother was likely the result of a blocked air passage caused by the comatose state.

Because James’s body never was found, the Commonwealth offered circumstantial proof of his death, including his age, the fact that no one saw him at the supermarket parking lot, the peculiar circumstances of the preceding two days wherein James was not seen conscious or awake by anyone, the inconsistent nature of appellant’s statements to police after James’s “disappearance,” and the failure of hundreds of search volunteers to turn up any evidence of James’s whereabouts.

In order to establish the malice necessary to prove murder, the Commonwealth provided testimony from several sources that appellant repeatedly abused James, both physically and mentally. Also offered as evidence by the Commonwealth was a statement made by appellant while in jail which was overheard by another inmate. While on the telephone, appellant said that the police were not looking in the right place, which was the local dump.

We first address appellant’s claim that the evidence against him was insufficient to convict him of third degree murder. We will consider all of the testimony presented to the jury in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600, 603 (1989), rev’d on other grounds, 532 Pa. 177, 615 A.2d 321 (1992). To prove homicide, the prosecution must establish that James is dead and that his death resulted from criminal means effected by appellant. Id. at 581-82, 568 A.2d at 602. In order to prove third degree murder, the prosecution must establish that appellant acted with malice. Commonwealth v. MacArthur, 427 Pa.Super. 409, 629 A.2d 166, 167 (1993).

The fact that James’s body never was recovered does not preclude the government from proving that he is dead; proof of death may be established by circumstantial evidence. Smith, 523 Pa. at 586-88, 568 A.2d at 605. On appeal we review all of the circumstances to determine whether “an inference of death as a result of criminal agency is appropriate.” Id.

James’s disappearance occurred under suspicious circumstances. No one saw him in the parking lot or in the car and appellant appeared to claim he was missing even before he checked the car to see if the child was inside. Appellant went to the supermarket at an early hour despite the fact that Mother did not want him to purchase food for her. Appellant spent a very brief amount of time in the store before leaving without any groceries. He then approached the store employee. All of these rather curious circumstances allow an inference to be drawn that events did not occur as appellant claimed. Of even more significance were the days preceding James’s disappearance, which proved quite odd. He was not seen awake or alert by any adult and remained in the sole care of appellant for most of the weekend. The last time he was seen awake was when he was standing on a crate in the couple’s bedroom. Finally, appellant gave contradictory statements to police and to volunteers who searched in vain for James. All of these circumstances, in addition to appellant’s statement in prison that police were not looking for the body in the “right place,” support an inference that appellant was not telling the truth about James’s disappearance. Appellant claims that James’s disappearance was not unexplained or suspicious because he explained fully how and when the child disappeared. It is obvious, however, that the jury chose not to believe appellant’s explanation.

We conclude that the evidence presented by the Commonwealth was sufficient to prove the death of James. See Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963) (fact of death established where last time victim was seen was in the presence of the defendant in a helpless condition in circumstances that would indicate she was unconscious or incapable of moving herself). See also Commonwealth v. Lettrich, 346 Pa. 497, 31 A.2d 155 (1943) (evidence of corpus delicti sufficient where baby last seen alive with defendant, baby was unable to move on its own, and defendant made contradictory statements to police about the child’s disappearance).

In order to prove that it was appellant who was responsible for James’s death, the Commonwealth relied in part on the principle that where an adult has sole custody of a child for a period of time, and during that time the child suffers injury that is not accidental or self-inflicted, the jury is permitted to infer that the adult inflicted the injuries. Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837, 840 (1973). The evidence presented at trial clearly shows that whatever happened to James happened while he was in appellant’s custody. The same circumstances which support the conclusion that James is dead, including appellant’s story about how the child disappeared and his contradictory statements, invite the inference that James did not disappear on his own but was made to “disappear” by appellant himself. See Lettrich, supra.

The final requirement is malice. To establish malice, the Commonwealth must show a “wickedness of disposition, hardness of the heart, cruelty, recklessness of consequences and a mind regardless of social duty.” Commonwealth v. Fierst, 423 Pa.Super. 232, 620 A.2d 1196, 1203 (1993). Appellant insists that the evidence used to prove malice was 1) inadmissible, because it constituted prior bad acts and 2) insufficient, because it did not rise to the “magnitude of malice” necessary for a third degree murder conviction. A variety of witnesses, including Mother, James’s grandparents, neighbors and a school teacher, testified about the range of physical and mental torture that James endured at the hands of appellant.

Specifically, the jury heard that appellant beat James on many occasions with various instruments including a crutch; that appellant put vinegar and hot sauce in a soda can for James to drink and the child became sick therefrom; that appellant repeatedly made James stand on a crate for punishment; that one time James fell from the crate and loosened a tooth, so appellant took James to the bathroom, removed the loose tooth and made James return to the crate; that appellant beat James with a tree branch on a public street; that appellant once kicked James so hard in the back, he was propelled six to eight feet down a hallway until he hit a wall; that appellant smacked James in the head; that appellant would not permit James to- sleep; that appellant forced James to stand in the corner when he was “bad,” and on at least one occasion, the child was made to do so for over seven and one-half hours. All of this occurred as “punishment” for various breaches of conduct by this four year old boy.

In addition, a nurse testified that appellant threatened to “throw James in the trash” when he could not find someone to care for the boy while Johnson was giving birth to appellant’s daughter. James’s nursery school teacher testified that appellant came to school and gave her explicit permission to spank James.

Evidence of prior bad acts or the relationship between the accused and the victim is admissible to show malice. See Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764, 768 (1986) (Commonwealth’s case against defendant based on showing numerous acts of violence between defendant and victim; defendant’s intent to kill inferred from previous physical assaults and threats), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987); Commonwealth v. Baker, 466 Pa. 382, 353 A.2d 406, 411 (1976) (testimony which constituted instances of abuse in the chain of evidence produced by Commonwealth admissible to establish malice).

We decline appellant’s invitation to view the evidence set out above as mere disciplinary actions on the part of appellant. The behavior of appellant toward this child crossed the line of discipline and clearly exhibited the malice necessary for third degree murder. Appellant’s attempts to distinguish this case, on the basis of severity, from other cases wherein we found that abuse suffered by the victim at the hands of the accused served to establish malice, fails. See Commonwealth v. Matthews, 480 Pa. 33, 389 A.2d 71 (1978) (victim had bruises all over his body); Paquette, supra (victim was beaten so brutally that his brain tissue was bruised). We disagree with appellant that the abuse James suffered was not “serious physical abuse.” See Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977) (testimony presented by Commonwealth describing a pattern of physical abuse admissible). The repeated, merciless destruction of this boy’s physical and emotional self clearly was “serious” and also clearly established the requisite malice for third degree murder.

Our careful review of the record leads to the conclusion that the testimony regarding prior acts of abuse by appellant on the victim were admissible to prove malice, and further, that the evidence presented by the Commonwealth was sufficient to support appellant’s conviction for third degree murder.

Appellant also claims that the trial court erred in allowing Mother to testify about appellant’s abusive conduct toward her. This was the subject of a defense motion in limine wherein appellant asked the court to disallow any mention of the abuse in the Commonwealth’s case-in-chief. The trial court granted the motion and the Commonwealth did not pursue the matter on direct examination of Mother. On cross-examination however, appellant questioned Mother about whether she ever abused James, attempting to raise an inference that she was the cause of the boy’s death. In response, the Commonwealth elicited from Mother her reasons for hitting James, namely, that appellant would inflict abuse upon her if she did not punish James at his command. Appellant opened the door to such proper re-direct examination when he cross-examined Mother.

Finally, appellant claims that the admission of evidence of blood spots on the ceiling in the apartment was error. The testimony was that when Mother returned from the hospital after giving birth to her daughter, Mother noticed red spots on the ceiling and wall. She asked appellant, who had been caring for James during her absence, about the spots. He explained that they were juice stains. An analysis performed by police indicated that the spots were human blood. The Commonwealth introduced the test results to show that appellant had beaten James severely in the past, thereby showing malice, and lied about the origin of the spots, thereby showing consciousness of guilt and an effort to deceive. Appellant claims that the presence of the blood spots was irrele.vant to the case because it did not occur during the weekend at issue.

We agree with the trial court that the blood spots were admissible to establish the Commonwealth’s case of a continuing pattern of violence by appellant against James. The presence of the blood, and appellant’s lie about its origin, make it more likely than not that appellant abused James. The spots corroborated Mother’s testimony that appellant often beat James until he bled and, therefore, support the Commonwealth’s proof of malice.

Judgment of sentence affirmed.

      . Appellant claimed that the reason he did not bring James into the store was because he was punishing the child for spilling milk and wetting the bed. Another time he told police that he did not bring the child into the store because James had no shoes on and appellant already had to carry his infant daughter.

      . At some point during the many searches for James, a volunteer told appellant that they planned to search the local dump. Appellant told the volunteer that he had already attempted to search the dump but that its owners would not give him permission to do so. Testimony from the dump’s manager revealed that no requests to search were made by any party.

      . Our conclusion here also resolves another issue raised by appellant. At trial the Commonwealth introduced a statement made by appellant while in prison. Another inmate overheard appellant on the telephone saying: “[T]hey will never find the body. They haven’t looked in the right place, down at the dump.” Appellant claims that the Commonwealth did not establish James was dead or that appellant caused his death and, therefore, the corpus delicti was not established independent of appellant’s admission. Our finding that the evidence was sufficient to prove James's death and that appellant caused the death disposes of this argument.


author: HUDOCK, Judge:

text:
    640 A.2d 926
    Max KARNER, Appellant, v. Lisa E. McMAHON, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1994.
    Filed April 21, 1994.

      John D. Conroy, Doylestown, for appellant.
    Karen Olejarz, Doylestown, for appellee.
    Before WIEAND, HUDOCK and SAYLOR, JJ.
   HUDOCK, Judge:

Max Earner (Father) appeals from the order of the trial court awarding legal and primary physical custody to Patrick McMahon (Stepfather), while affording him partial custody. We affirm.

The facts were ably summarized by the trial court:

[Father] is 32 years of age and Lisa McMahon (hereinafter “Mother”) is 30 years of age. [The parties were married in 1983.] Michael Earner was born August 6, 1983 and Andrew Earner was born May 2, 1986. At the time of the birth of the Children the parties lived in California and Father was in the Navy. In 1986 the family moved to South Carolina and in March, 1987, the parents separated. They were divorced in approximately January 1989 and Mother married Stepfather in March 1989.
Prior to the separation of the parties, the Children resided with both parents. When the parties separated, neither parent wished to have custody of or be responsible for the Children. Thus, for approximately eleven months, beginning shortly after the parties[’] separation, the Children resided with Anthony and Gloria Brady, who were friends of' the family. Toward the end of the time that the Children lived with the Bradys, Mr. Brady tried to give the Children to Father but Father did not want them. Nevertheless, Mr. Brady insisted and the Children stayed with Father for two days. Father then gave them to Mother for one day, who then gave them back to the Bradys for another six weeks. The Children did eventually return to Mother’s custody after Mr. Brady insisted that she take some responsibility for them. There was no further contact between the Bradys and Mother or Father until after Mother remarried in 1989. At that time, a relationship between the [Bradys], Mother and the Children was reestablished with the Bradys acting in the capacity of grandparents, taking the boys for camping weekends and engaging in other activities with them on a regular basis.
Stepfather began living with Mother a few months before their March, 1989 marriage. Mother was employed as a paramedic and engaged in extensive educational activities to advance herself in the paramedical field. These activities took most of her time. Therefore, Stepfather spent significant periods of time with the Children and assumed the role of primary caretaker from the time he moved in with Mother until present. Stepfather is in the Navy and used to have approximately sixty days per year when he is on a submarine. During those times he made arrangements for child care. Now, however, he is no longer required to do submarine duty. Except for his time on the submarine, Stepfather was with the Children virtually every day and primarily met their needs. Stepfather and Mother have a child, Kristin, who was born in March of 1990. Kristin has lived with Stepfather and the Children from her birth until present. The Children have a close relationship with their half-sister.
From shortly after the separation, until approximately June, 1991, Father did not see the Children on any regular basis, and periods between visits sometimes would last up to six months. However, around June, 1991, Father began seeing the Children on a regular basis, usually one overnight or day visit, although sometimes he was to have them two consecutive overnights. Stepfather had encouraged Father to see the Children more often but, despite this encouragement, Father did not make any extra effort to spend more time with the boys.
Father was to have the Children on the weekend of January 26, 1992. However, he returned the Children on Saturday, a day early, which was apparently a regular practice of Father. Father testified that Mother needed a babysitter (Father’s words) for the Children and for Kristin for Sunday, since the Stepfather was on submarine duty at that time, but agreed to “babysit” so long as he would have the use of Mother’s car. While Mother, Father, the two boys and Kristin were together in the car, they were involved in a tragic automobile accident in Charleston, South Carolina. As a result of this accident, Mother has suffered permanent injuries which have rendered her incompetent. One of the boys, Michael, had a severe closed head trauma which, after several months of hospitalization, has left him with some residual problems and concerns for his psychological well being. The other boy, Andrew, suffered a less severe closed head injury. Kristin suffered a severe open head injury which resulted in the removal of part of her brain and has left her with significant motor problems on the right side of her body. Father was not admitted to the hospital, but had some bruised ribs and a cut over his eye. He was, by far, the least injured in this accident. Father did not assume a decision-making role for the Children’s medical care after this accident, either immediately or long term. Stepfather, who was given an emergency leave and arrived at the hospital shortly after the accident, began making medical decisions for the entire family. Father’s contribution principally related to the issue of whether he could bring a law suit for his own injuries.
Andrew was released from the hospital approximately two weeks after the accident into the custody of Stepfather. Stepfather’s mother came from Philadelphia to help care for Andrew. Michael was in the hospital for a longer period and eventually was transferred to the Seashore House at Childrens Hospital in Philadelphia for follow-up care. Father did not, even after the Children were released from the hospital, attempt to assume any custody. When asked why he waited until Stepfather asked for custody Father replied: “I was going to file for custody despite the papers, but it was a matter of just the timing. I wanted to make sure that my boys were better, and that the liability that was inherent in the accident was met.” (N.T., 1/4/93, p. 79).
While Michael was in the hospital in Charleston, and at Stepfather’s request, Anthony Brady stayed with him at night, as Michael was waking up with night terrors. At the time, Stepfather was dividing his time between his critically ill wife and daughter and his stepchildren. Mr. Brady asked Father to stay with Michael at night. Father complied one time, but two other times when he was asked, he did not appear and offered no explanation as to why he would not stay with Michael.
Stepfather also investigated, after consultation with the doctors, as to the best place for treatment of the Children and his wife and a decision was made by Stepfather that the family should be moved to the Philadelphia area. Stepfather consulted with Father, and as Father testified, he did not oppose the move. Father left the decision to Stepfather. Along those lines, Stepfather obtained a transfer with the Navy to the Philadelphia area. Mother was eventually transferred to Moss Rehabilitation Hospital in Philadelphia and is presently in Leader Nursing Home. Mother’s father indicated that to some extent she appears to know her surroundings. There appears to be some minimal improvement in Mother’s condition but there is no indication that she will ever become competent or able to resume custody of these Children.
Michael was discharged from Childrens Hospital to Stepfather’s care. Both Children have remained in the custody of Stepfather to date. Father saw the Children in Pennsylvania, with Stepfather’s encouragement and cooperation, several times until the weekend of July 4, 1993. On that weekend Stepfather asked Father to sign papers giving him custody. As a result of that request, this litigation has commenced.

Trial Court Opinion, 9/21/93, at pp. 2-6.

Father raises the following issues on appeal:

1. DOES A STEPPARENT HAVE STANDING TO SEEK CUSTODY FROM A NATURAL PARENT?
2. CAN A NATURAL PARENT WHO IS FIT LOSE CUSTODY TO A STEPPARENT?
3. WHAT IS THE APPROPRIATE TEST TO BE APPLIED TO RESOLVE A CUSTODY DISPUTE BETWEEN A PARENT AND A STEPPARENT?
4. DID THE COURT MAKE A FINDING THAT FATHER WAS UNFIT?
5. ARE THE FINDINGS OF THE COURT ALL SUPPORTED BY THE RECORD BELOW?
6. DID THE COURT PREPARE A DETAILED COMPREHENSIVE OPINION WITH REASONS UNDERLYING ITS DECISION WHICH COMPRISES A THOROUGH ANALYSIS OF THE WHOLE RECORD?
7. DID THE COURT PRESENT A CONFLICT BY ISSUING TWO OPINIONS STATING ITS REASONS— THE FIRST NOT MENTIONING FATHER AT ALL AS A FACTOR AND THE SECOND STATING NEGATIVE THINGS ABOUT HIM?

Father’s Brief at p. 2. While Father raised the above seven issues, his argument is presented in twenty separate divisions which sometimes do not correspond to any issue raised. Although this violation of Pa.R.A.P. 2119(a), 42 Pa.C.S., has made review more cumbersome, we will nevertheless review the merits of the above issues. See generally, Commonwealth v. Melvin, 378 Pa.Super. 59, 548 A.2d 275 (1988), alloc. den., 522 Pa. 588, 561 A.2d 741 (1989) (failure to address each of the issues presented for consideration separately in argument section of brief did not prevent this Court from reviewing merits).

Father first claims that Stepfather lacked standing to seek custody of Michael and Andrew. As this Court has recently stated:

Custody disputes between parties, other than parent versus parent, are characterized as “third party” disputes. [In re Custody of Hernandez,] 249 Pa.Super. 274, 376 A.2d 648 (1977). “Absent a prima facie right to custody, a third party lacks standing to seek custody as against the natural parent.” Rosado v. Diaz, 425 Pa.Super. 155, 624 A.2d 193 (1993) [.] This is so because a parent’s prima facie right to custody should not be subject to challenge without a clear and convincing showing that the child is not receiving proper parental care. This may properly be done through a dependency proceeding. Gradwell v. Strausser, [416 Pa.Super. 118, 610 A.2d 999 (1992)]. Thus, the appropriate manner for a “third party” to obtain custody of a child is through a dependency proceeding. Id.
One exception exists to the above stated principle, that is where there is proof that a party stands in loco parentis to the child.
The phrase ‘in loco parentis’ refers to a person who puts himselff/herselfl in the situation of assuming the obligation incident to the parental relationship without going through the formality of a legal adoption. The status of ‘in loco parentis’ embodies two ideas: first, the assumption of a parental status, and second, the discharge of parental duties.
Rosado v. Diaz, 425 Pa.Super[.] at 161, 624 A.2d at 196, citing Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 241 A.2d 531, 533 (1968).

Van Coutren v. Wells, 430 Pa.Super. 212, 215-216, 633 A.2d 1214, 1215-16 (1993). The rights and obligations arising out of the in loco parentis relationship are exactly the same as those arising between parent and child. Gradwell v. Strausser, 416 Pa.Super. 118, 610 A.2d 999 (1992).

In response to this issue, the trial court, in its 1925(a) opinion, stated that the record is replete with evidence that Stepfather has acted, and continues to act, “in loco parentis” for Michael and Andrew. Upon an independent review of the record, we agree with the conclusion of the trial court that Stepfather has assumed primary parental responsibility for the children since 1989 to the present. Thus, it is clear that Stepfather has standing to seek custody of Michael and Andrew.

We are unpersuaded by Father’s several claims that this conclusion is in error. First, citing Gradwell v. Strausser, supra, Father claims that a third party cannot place himself in loco parentis status in defiance of the parents’ wishes and the parent/child relationship. However, there is no evidence of such defiance on Stepfather’s part in the present record. Father next cites Creeks v. Creeks, 422 Pa.Super. 432, 619 A.2d 754 (1993), for the proposition that Mother’s custodial “interest” must be determined by the terms of the custody agreement which was part of the divorce decree of Mother and Father. Father contends that, because the agreement was not modified, the only conclusion that could be reached is that they intended to retain custody themselves and not to have Stepfather act in loco parentis. Father also claims that mere presence in the household with the children does not bestow any special status upon Stepfather or permit standing. Weber v. Weber, 362 Pa.Super. 262, 524 A.2d 498 (1987), alloc. granted, 515 Pa. 624, 531 A.2d 431 (1987). We note that Creeks did not involve a custody agreement, but rather, a marital settlement agreement. Moreover, in Weber this Court determined that an adult daughter who was not living with her parents lacked standing to seek partial custody of her minor sister who still lived with the parents and who was prohibited by them from visiting her outside their home. The case does not discuss the status of in loco parentis. Finally, we are unpersuaded by Father’s claim that the one instance where Stepfather prevented him from seeing the children should defeat the latter’s in loco parentis status. The record is clear that this was an isolated incident and, even after the incident, Stepfather has encouraged Father to visit the children.

Father next queries whether a natural parent who is fit can lose custody to a stepparent. As shall be discussed below, a finding of fitness is not the pivotal issue in parent versus non-parent disputes. This brings us to Father’s next issue. He asks what is the appropriate test to be applied to resolve a custody dispute between a parent and a third party, i.e., stepparent. The answer is found in the following language of this Court in In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977):

When the judge is hearing a dispute between the parents, or a parent, and a third party, the manner of inquiry is more complex [than that used in custody disputes between parents]. The question still is, What is in the child’s best interest? However, the parties do not start out even; the parents have a “prima facie right to custody,” which will be forfeited only if “convincing reasons” appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.

Hernandez, at 286, 376 A.2d at 654 (footnote omitted). This test was adopted by our Supreme Court in Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). Stated differently, in seeking custody, the non-parent bears the burden of persuasion and the burden of production, and the non-parent’s burden is a heavy one. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980). Albright also refined the test cited above by explaining that the term “prima facie right” of a natural parent is not a property right, that is, “that parenthood alone would necessarily defeat the claim of custody of a non-parent.” Albright, at 325-26, 421 A.2d at 160. Thus the Hernandez standard, as adopted and refined by our Supreme Court, “was intended to emphasize the importance of the parental relationship, yet at the same time permit the hearing court to award custody to the third party where the best interests of the child will be clearly served by such a decision.” Id.

Father next questions whether the trial court made a finding that he was unfit. While Father asserts that the answer is unclear based on the record, upon review, we find that the trial court neither made such an explicit finding nor was required to do so. Rather, the natural parent’s fitness is but one of the factors to be considered. As stated by our Supreme Court, making the unfitness of a parent the pivotal issue

... tends to focus the inquiry on the respective rights of the contesting parties whereas the real issue is the best interest of the children involved. Restated, the standard in this area is not to be construed as precluding a custody award to a non-parent, absent a demonstration of the parent’s dereliction. We again emphasize that the standard seeks only to stress the importance of parenthood as a factor in determining the best interests of the child. However, other factors which have significant impact on the well being of the child can justify a finding in favor of the non-parent, even though the parent has not been shown to have been unfit.

Albright, at 328, 421 A.2d at 161. Upon review, we find that the trial court did consider Father’s fitness as a parent but only as a factor in determining the best interest of the children.

Father cites Ellerbe v. Hooks, supra, and Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130 (1990), for the proposition that the parent-child relationship should not be interfered with without some showing of harm. These cases do not stand for that proposition; rather, as already stated, Ellerbe adopted the standard this Court established in In re Hernandez, supra. Our plurality decision in Zummo involved a custody dispute between two parents as to the father’s constitutional right to take his children to religious services “contrary to the Jewish faith” during periods of lawful custody or visitation. It is in this context that we held that such restrictions on father could only be justified if the party seeking the restriction demonstrates by competent evidence that the belief or practice of the party to be restricted actually presents a substantial threat of present or future physical or emotional harm.

Father also cites Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987), alloc. den., 520 Pa. 570, 549 A.2d 131 (1988), for the proposition that “because of a natural parent’s constitutional rights, the court in Burke at 787 indicated that only ‘unfitness’ and ‘abandonment’ override the parent’s prima facie right to custody.” Father’s Brief at p. 18. Father misreads Burke. In that case, this Court found that the trial court erred in basing its decision on some findings of fact that were not supported by the record and relied too heavily on the “psychological parent doctrine.” No such errors or overemphasis occurred in the present case. In Burke, the trial court equated the “psychological parent doctrine” with unfitness and abandonment as factors that can override the parents prima facie right to custody. When this same language was used by this Court, however, it was only a reiteration and rejection of the language and reasoning of the trial court. The Burke court did no more than recognize that this Court has previously determined that the “psychological parent doctrine” cannot be a determinative factor in custody disputes. See In re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984) (en banc). However, psychiatric considerations are important, and should be considered along with many other factors. Id.

Additionally, Father’s reliance on In re Rinker, 180 Pa.Super. 143, 117 A.2d 780 (1955), and In re J.W., 396 Pa.Super. 379, 578 A.2d 952 (1990), for the proposition that a child cannot be placed with a non-parent unless there is an absolute necessity to do so, and for the proposition that natural parents have a constitutional right to custody of their children, is misplaced; these cases were decided under the Juvenile Act which, unlike the present case, involve custody disputes between the parent and state and require a stricter standard of proof before a child is taken from a parent’s custody. See In re Hernandez, supra. Finally, Father claims that a parent’s right to custody as against a non-parent cannot be defeated by application of the “best interests of the child” test. Father is simply wrong; the fact that the best interests of the child is the paramount consideration is so beyond peradventure that no further citation or discussion is needed. Indeed, even the rights of natural parents are subordinate to the child’s best interest. Constant A. v. Paul C.A, 344 Pa.Super. 49, 496 A.2d 1 (1985).

Father next asks whether the findings of the trial court are supported by the record. The standard of review applied by an appellate court to a child custody order is of the broadest type; an appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the Court accept a finding that is not supported by competent evidence. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). While the standard is broad, it does not vest an appellate court with the duty or privilege of making its own independent determination, that is, nullify the fact-finding function of the trial court. Id. An appellate court may not interfere with the trial court’s factual conclusions unless they are unreasonable in view of the trial court’s factual findings and thus represent a gross abuse of discretion. Id.

Of course our paramount concern in child custody cases is the best interest of the child. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981). In the present case, the trial court concluded that it would be in the best interest of Michael and Andrew if Stepfather was to be awarded custody. Before so concluding, the trial court considered the fact that at the beginning of the litigation Father testified regarding his stability by emphasizing his employment history and his various residences in South Carolina, yet, by the time of the final hearing, he indicated that he was in the process of moving to Connecticut and that he would be living there in his grandmother’s house and working for his uncle’s construction company. The trial court also noted that Father admitted that he told a friend in South Carolina that the insurance company had settled with his children and the amount of the settlement. The trial court also noted that various witnesses testified that Father had expressed interest in the money that the children had already received and potentially will receive because of the accident. The trial court then noted the Stepfather’s testimony that he believed the money was totally for the children and should be saved for their education.

The trial court interviewed the children individually. It noted that both of them considered Stepfather to be their real father. While the children realized that Father is their natural father, they refer to him as “Daddy Max.” The trial court also noted that Doctor Rabinovich, a child psychiatrist, testified on behalf of Stepfather. Because he did not interview Father, the trial court assigned no weight to any recommendations he made as to who would be the better custodian of the children. However, because Dr. Rabinovich is also a medical doctor who is familiar in dealing with children who have received head traumas and in dealing with issues such as behavior problems, the trial court accepted his testimony that Michael should have continued counselling and should continue to be monitored by Childrens Hospital due to his head injury. Dr. Rabinovich also opined that the children have gone through both physiological and psychological trauma as a result of the accident, have essentially suffered the loss of their mother, and their little sister is severely injured. Thus, according to Dr. Rabinovich, it would further traumatize the children if they were to be removed from the person they view as their father.

Mother’s parents and the Bradys all testified in support of Stepfather and corroborated his role as primary caretaker of the children and Father’s lack of interaction with the children. On his part, Father, aside from his own testimony, presented as witnesses his grandmother and uncle with regard to the arrangements he has made to live with his children in Connecticut should he be awarded custody. He also presented the depositions of friends and former colleagues from South Carolina.

The trial court concluded that the testimony presented established that Stepfather has been very attentive in meeting the educational and emotional needs of the children, including the special needs that they currently have and may develop in the future because of the accident. This finding is amply supported by the testimony of several witnesses, as well as the medical testimony provided by Dr. Rabinovich. The trial court chose to believe the. testimony of Stepfather and Dr. Rabinovich that the children are not completely “well,” as so characterized by Father, and, upon réview, we find that such a factual conclusion is not unreasonable and does not, therefore, represent a gross abuse of discretion.

Based upon the record before us, we also cannot conclude that the trial court abused its discretion in determining that Stepfather would provide a more stable environment for the children. As testified by several witnesses, Stepfather has, for at least the last five years, provided an environment in which the children have flourished. Such stability is even more important when both children are still dealing with the residual effects of the tragic accident. See Jones v. Stone, 343 Pa.Super. 416, 495 A.2d 205 (1985) (importance of stability even more pressing because of the child’s speech and behavioral problems). On the contrary, Father has never had custody of the children during this same time period for more than two days. He has divorced for the second time and has changed jobs several times. At the time of the final hearing in this case, Father was moving to Connecticut to live with his grandmother and work for his uncle. While he testified as to the accommodations for the boys there, the fact remains that the stability of that environment is unknown. See Snarski v. Krincek, 372 Pa.Super. 58, 538 A.2d 1348 (1988) (where a parent’s past reveals character traits that undermine the ability or willingness of that parent to provide for his child, and in the absence of evidence that those traits have somehow changed so as to produce new parenting abilities and concerns, this Court can conclude that the risk that the past will be repeated in the future justifies an award of custody to a third party who has never indicated an inability or unwillingness to care for the children).

Finally, we cannot conclude that the trial court abused its discretion in considering the children’s relationship with their half-sister and potential relationship with Mother. It is well-settled in the law that, absent compelling reasons, siblings should be raised together. Cyran v. Cyran, 389 Pa.Super. 128, 566 A.2d 878 (1989). This is trae of natural siblings as well as half siblings. Albright, supra. Contrary to Father’s assertion, Mother’s father testified that she does appear to recognize Michael and Andrew, and he has witnessed some improvement in her ability to communicate.

Father raises several instances where he claims the trial court’s factual findings are not supported by the record. The majority of these claims involve conflicting testimony and the weight that the trial court gave to such testimony. As this Court has often noted, “the hearing judge is in a far superior position to determine matters of credibility, and to evaluate the attitude and sincerity of the witnesses.” In re Arnold, 286 Pa.Super. 171, 174-75, 428 A.2d 627, 629 (1981) (citing Jones v. Kniess, 249 Pa.Super. 134, 375 A.2d 795 (1977)). After a thorough review of the record, we conclude that the trial court did not abuse its discretion in finding that Father’s prima facie right to custody had been overcome by convincing reasons which prove it is in the best interests of Michael and Andrew to remain in the custody of Stepfather.

Order affirmed.

      . Father also cites Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), for the proposition that a father has a constitutionally protected right to the custody of the children he has sired and raised. While this may be true, if anything is clear from the record, it is the fact that Father cannot be said to have raised Michael and Andrew.

      . Father’s final two issues involve the trial court’s opinions. Contrary to his first assertion, we perceive no conflict created by the issuance of the two opinions. To enable this Court to exercise its independent judgment in custody cases, it is the duty of the trial court to make a complete record. Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979). We find that the trial court in the present case was cognizant of this duty and gave the parties every opportunity to present testimony and/or depositions of witnesses from different states. The trial court must also file a comprehensive opinion which makes factual findings and explains its analysis and reasoning in making its determination. Garrity, supra. Given the completeness of the record before us, we find the trial court’s opinions to be adequate. Thus, we need not remand for a more comprehensive opinion. See generally, Commonwealth ex rel. Husack v. Husack, 273 Pa.Super. 192, 417 A.2d 233 (1979).