text:
    446 A.2d 695
    Glenwood Homes Inc., Appellant v. Mull et ux.
    Argued November 13, 1980.
    Dennis J. Gounley, for appellant; Bernard Redlich, for appellee.

      Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    446 A.2d 695
    Green v. Green, Appellant.
    Submitted February 4, 1981.
    Arthur W. Collin, for appellant; William B. Borrebach, Jr., for appellee.
    Before WICKERSHAM, POPOVICH and WATKINS, JJ.
   Decree affirmed. Having made an independent study of the entire record, we are of the opinion that the court below properly granted a decree in divorce in this case.


text:
    448 A.2d 644
    Henry v. Murphy and Veldoralf. Appeal of Joseph J. Murphy.
    Reargument Denied Aug. 2, 1982.
    Argued November 4,1981.
    Robert J. Murphy, for appellant; Benedict A. Casey, for Henry, appellee; Vincent C. Veloralf, appellee, in propria persona.
    Before SPAETH, BECK and LIPEZ, JJ.
   The order of the court is affirmed.


text:
    446 A.2d 695
    Kessler, Appellant v. Gregory et al.
    Argued May 20, 1981.
    William J. Wiker and Jon M. Lewis, for appellant; Stephen L. Dugas, for appellees.
    Before HESTER, POPOVICH and DiSALLE, JJ.
   Order affirmed.

DiSALLE, J., did not participate in the consideration or decision of this case.


text:
    446 A.2d 696
    Martin, Appellant v. Gilpenn Marine Service, Inc. Martin v. Gilpenn Marine Service, Inc., Appellant.
    Argued November 13, 1980.
    John A. Caputo, for Martin, appellant (at No. 438) and appellee (at No. 440); Samuel J. Reich for Gilpenn Marine, appellant (at No. 440) and appellee (at No. 438).
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   Affirmed.


text:
    446 A.2d 696
    Johnson, Appellant v. Moore-McCormack Lines, Inc. Mitchell, Appellant v. Moore-McCormack Lines, Inc.
    Argued November 6, 1981.
    Stanley B. Gruber, for appellants; Edward V. Cattell, Jr., for appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   The judgment is affirmed.


text:
    446 A.2d 696
    Munns-Stromple Assoc., Appellant v. Prudential Insurance Co.
    Submitted November 13,1980.
    Elmer S. Beatty, Jr., for appellant; H. Woodruff Turner, for appellees.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   The order entered April 2,1980 is affirmed on the comprehensive opinion of the Honorable Joseph A. Del Sole.


text:
    446 A.2d 697
    Nixon, Appellant v. City of Philadelphia.

      Argued November 18, 1981.
    George J. O’Neill, for appellant; Martin S. Kardon, Assistant City Solicitor, for appellee.
    Before McEWEN, MONTEMURO and HOFFMAN, JJ.
   Order and judgment affirmed.


text:
    446 A.2d 697
    Singzon v. Singzon, Appellant.
    Argued November 6, 1981.
    Sidney Apfelbaum, for appellant; Vincent B. Makowski, for appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   The order of the lower court is vacated and case remanded. Jurisdiction relinquished.


text:
    May 28, 1982.
    446 A.2d 697
    Beaver v. Sabo, Appellants.
    Argued February 10, 1982.
    Samuel C. Holland, for appellants; Robert E. Kunselman, for appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   Judgment affirmed.


text:
    448 A.2d 644
    Bidelspacher, etc. v. Farmer, Appellant.
    Réargument Denied Aug. 2, 1982.
    Argued December 9, 1981.
    John P. Campana, for appellant; Charles A. Szybist, for appellees.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Order affirmed.


text:
    446 A.2d 697
    Commonwealth v. Austin, Appellant.
    Petition for Allowance of Appeal Denied Sept. 30, 1982.
    Submitted June 3, 1981.
    Douglas M. Johnson, Assistant Public Defender, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 698
    Commonwealth v. Banjoman, Appellant.
    Submitted November 30, 1981.
    Jeffery M. Cook, Assistant Public Defender, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 698
    Commonwealth v. Brown, Appellant.
    Submitted June 3, 1981.
    Andrew K. Parker, for appellant;
    Kenneth Brown, District Attorney, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   The order is affirmed.


text:
    446 A.2d 698
    Commonwealth v. Caldwell, Appellant.

      Submitted December 14, 1981.
    Robert Scandone, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 699
    Commonwealth v. Christmas, Jr., Appellant.
    Submitted September 10, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 699
    Commonwealth v. Cunningham, Appellant.
    Submitted March 16, 1982.
    Joseph M. Budicak, for appellant; Edward J. Tocci, District Attorney, for Commonwealth, appellee.

      Before SPAETH, JOHNSON and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 699
    Commonwealth v. Daniel, Appellant.
    Submitted March 9, 1982.
    Charles A. Peruto, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 699
    Commonwealth v. Dickerson, Appellant.
    Submitted May 13, 1981.
    E. Anthony Toto, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    448 A.2d 1143
    Commonwealth v. Dyson, Appellant.
    Reargument Denied Aug. 24, 1982.
    Argued February 28, 1982.
    Barry J. Cohen, for appellant; James F. Marsh, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 700
    Commonwealth v. Evans, Appellant.
    Petition for Allowance of Appeal Denied Sept. 28, 1982.
    Argued March 9, 1982.
    Joel W. Todd, for appellant; Ron Eisenberg, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Order affirmed.


text:
    446 A.2d 700
    Commonwealth v. Gaffney, Appellant.
    Submitted March 1, 1982.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Judgments of sentence affirmed.


text:
    446 A.2d 700
    Commonwealth v. Geiger, Appellant.
    Submitted March 30, 1981.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and HESTER and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 701
    Commonwealth v. Hamm, Appellant.
    Submitted January 5, 1982.
    G. Eugene Beechwood, for appellant; James R. Freeman, District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 701
    Commonwealth v. Hitchcock, Appellant.
    Petition for Allowance of Appeal Denied Sept. 17, 1982.
    Submitted February 24, 1982.
    Lewis J. Bott, Assistant Public Defender, for appellant; Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 701
    Commonwealth v. Hunsinger, Appellant.
    Petition for Allowance of Appeal Denied Sept. 13, 1982.
    Argued March 9, 1982.
    James F. Geddes, for appellant; Joseph C. Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 702
    Commonwealth v. Jennings, Appellant.
    Submitted February 23, 1982.
    Douglas M. Johnson, Public Defender, for appellant; Joseph A. Smyth, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 702
    Commonwealth, Appellant v. Kyle.
    Argued April 1, 1980.
    David M. McGlaughlin, Assistant District Attorney, for Commonwealth, appellant; Alan Schnoll, for appellee.
    Before CERCONE, P. J., and HESTER and JOHNSON, JJ.
   Order affirmed.


text:
    446 A.2d 702
    Commonwealth v. Lopez, Appellant.
    Submitted January 25, 1982.
    David Zwanetz, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 702
    Commonwealth v. McGreal, Appellant.
    Argued November 4, 1981.
    Julius E. Fioravanti, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   Order affirmed.


text:
    446 A.2d 703
    Commonwealth v. Milano, Appellant.
    Submitted December 15, 1981.
    Robert Pappano, Assistant Public Defender, for appellant; Rex R. Gary, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 703
    Commonwealth v. Roberts, Appellant.
    Petition for Allowance of Appeal Denied Oct. 15, 1982.

      Submitted December 5, 1980.
    Barry H. Oxenburg, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 703
    Commonwealth v. Schaeffer, Appellant.
    Submitted December 8, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Michael H. Ranck, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 704
    Commonwealth v. Scott, Appellant.

      Submitted June 3, 1981.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   Judgment of sentence for attempted theft is vacated; judgment of sentence for possession of an instrument of crime is affirmed.


text:
    446 A.2d 704
    Commonwealth v. Serbanjack, Appellant.
    Submitted October 28, 1981.
    Gary P. Caruso, Assistant Public Defender, for appellant; Albert M. Nichols, District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and WATKINS, JJ.
   Order affirmed on the comprehensive opinion of Judge Loughran.


text:
    446 A.2d 704
    Commonwealth v. Sloan, Appellant.

      Submitted March 18, 1981.
    John H. Corbett, Jr., for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 704
    Commonwealth v. Smith, Appellant.
    Submitted May 21, 1981.
    John H. Corbett, Jr., for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, POPOVICH and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 705
    Commonwealth v. St. Clair a/k/a Tynes a/k/a Thomas, Appellant.
    Submitted May 12, 1981.

      Stephen P. Pairizio, Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before MONTEMURO, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


text:
    446 A.2d 705
    Commonwealth v. Thomas, Appellant.
    Submitted March 25, 1981.
    Richard P. Wagner, for appellant; Rolfe W. Bienk, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 705
    Commonwealth v. Upshur, Appellant.
    Submitted May 21, 1981.
    John H. Corbett, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.

      Before HESTER, POPOVICH and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 706
    Commonwealth v. Williams, Appellant.
    Submitted May 22, 1981.
    John P. Liekar, for appellant; Janet Moschetta, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, POPOVICH and MONTGOMERY, JJ.
   Order affirmed.


text:
    446 A.2d 706
    Commonwealth v. Wilson, Appellant.
    Submitted September 10, 1981.
    Gordon J. Scopinich, for appellant; Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and CIRILLO, JJ.
   Order of the court below affirmed.

McEWEN, J., concurred in the result.


text:
    446 A.2d 706
    Commonwealth v. Younkin, Appellant.
    Argued March 8, 1982.
    William Caprio, for appellant; Kenneth D. Brown, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before CAVANAUGH, WICKERSHAM and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 706
    Commonwealth v. Zukowski, Appellant.
    Submitted March 8, 1982.
    Jonathan Blum, Assistant Public Defender, for appellant; Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    446 A.2d 707
    Cotter, Appellant v. Matovich, etc., et al.
    Argued February 10, 1982.
    John A. Caputo, for appellant; Bernard Markovitz, for appellees.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   Judgment affirmed.


text:
    446 A.2d 707
    Betty S. and C. Enoch v. Galasso Builders.
    Argued December 7, 1981.
    Norman Ashton Klinger, for appellant; Richard C. Unger, Jr., for appellees.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   The order of the court is affirmed.


text:
    446 A.2d 707
    Kern v. Grabiak, et al., Appellants.

      Argued September 29, 1981.
    Bernard F. Scherer, for appellants; Richard F. Flickinger, for appellees.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.


text:
    448 A.2d 645
    Lauren-Beth, Inc., Appellant v. Morgan, Lewis & Bockius.
    Reargument Denied Aug. 19, 1982.
    Petition for Allowance of Appeal Denied Oct. 18, 1982.
    Argued June 11, 1980.
    John G. McDougall, for appellant; Richard K. Masterson, for appellee.
    Before PRICE, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    446 A.2d 707
    McNeill, et al., Appellants v. Old Republic Life Insurance Cos.
    Argued September 10, 1980.
    Sheridan P. Hunt, Jr., for appellants; Charles W. Craven, for appellee.

      Before WICKERSHAM, HOFFMAN and VAN der VOORT, JJ.
   Orders and judgment affirmed.

HOFFMAN, J., concurred in the result.


text:
    446 A.2d 708
    O’Rourke v. Hickman, Appellant.
    Petition for Allowance of Appeal Denied Nov. 5, 1982.
    Argued February 8, 1982.
    Jerome Hahn, for appellant; Frank C. Carroll, for appellees.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   Order affirmed.

POPOVICH, J., concurred in the result.


text:
    446 A.2d 708
    Post, etc. v. Post, Jr., Appellant.
    Submitted May 21,1981.
    George O. Sewall, for appellant; Stewart B. Barmen, for appellees.
    Before HESTER, POPOVICH and MONTGOMERY, JJ.
   Order affirmed.


author: BROSKY, Judge: HOFFMAN, Judge,

text:
    446 A.2d 1305
    COMMONWEALTH of Pennsylvania v. Anthony F. TODARO, Appellant.
    Superior Court of Pennsylvania,
    Argued June 9, 1980.
    Filed June 18, 1982.

      Charles B. Swigart, Public Defender, Huntingdon, for appellant.

      Stewart L. Kurtz, District Attorney, Huntingdon, submitted a brief on behalf of Commonwealth, appellee.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.

       At the time this case was argued Judge VINCENT A. CIRILLO of the Court of Common Pleas of Montgomery County is sitting by designation.

   BROSKY, Judge:

Appellant was involved in an automobile accident in February, 1977 as a result of which he was charged with involuntary manslaughter, recklessly endangering another person and driving under the influence. He was convicted of all charges in 1979 by a jury and sentenced to a term of imprisonment of 11 to 48 months. The case is before us following the denial of post-trial motions. Appellant contends that the lower court improperly excluded evidence of the intoxication of the deceased driver of the other automobile and that it erred in its charge to the jury. We affirm the decision of the trial court.

The facts of the case are as follows. Appellant, Anthony F. Todaro, was involved in an automobile accident on the evening of February 13, 1977. The automobile which he was driving collided with a Volkswagen “Beetle” in which six persons were travelling. The driver of the Volkswagen was killed.

Appellant’s first contention is that the lower court erred in refusing to permit the introduction of evidence of alcohol found in the blood of the deceased. The parties stipulated that the blood alcohol level of the deceased driver was 0.32 percent. The district attorney, however, opposed the introduction of this evidence saying it was not relevant. We agree.

Citing McCormick on Evidence, 2nd Ed., West Publishing Company, 1972, p. 437, appellant has outlined the commonly used test of relevance. That is, “[D]oes the evidence offered render the desired inference more probable than it would be without the evidence?” Application of this test to the facts of the present case indicates that the evidence does not make the inference sought by appellant more probable.

The theory of the prosecution was that the accident occurred in the southbound lane of traffic and was caused by appellant who was driving north in that lane. In support of its theory, the prosecution produced witnesses who testified that appellant was driving north in the southbound lane shortly before the accident occurred. The passengers in the Volkswagen testified that appellant’s headlights shone directly at the Beetle. Finally, a state trooper who investigated the accident scene testified that that it was his opinion, based on gouge marks, that the accident occurred in the southbound lane. Our examination of the record indicates that as the lower court found, there is no evidence to support the inference that the accident was caused by the deceased or that it occurred in the northbound lane. Of course, the burden of proof is on the prosecution to show that appellant caused the accident. Appellant need not demonstrate that it occurred in another way. However, while the burden of proof is not on appellant, he still cannot introduce evidence which does not help to prove a desired inference. Evidence of blood alcohol, alone, does not support any inference as to the cause of the accident. It was not relevant to any issue before the court.

Appellant’s next assignment of error concerns the charge to the jury on the question of his intoxication. The judge instructed the jury as to the effect of voluntary intoxication. Appellant argues that the charge should have included a more thorough discussion of involuntary intoxication. He claims that although he voluntarily consumed enough alcohol to make the blood alcoot realize that medication he was taking combined with alcohol level 0.14 percent, he should be found involuntarily intoxicated because he did not realize that medication he was taking combined with alcohol, would cause him to be as intoxicated as he was. In the recent case, Commonwealth v. Bridge, 495 Pa. 568, 435 A.2d 151 (1981), our Supreme Court examined the issue of when evidence of voluntary intoxication is admissible. The court wrote:

The history of this issue in this jurisdiction has been a checkered one. In Commonwealth v. Tarver [446 Pa. 233, 284 A.2d 759], supra, this Court restricted the use of evidence of intoxication to reducing the offense of murder of the first degree to a lesser degree of murder. It rejected the view that this evidence should be allowed wherever a specific mens rea crime was charged. The Tarver position was repudiated by the legislature in its original draft of section 308 which provided:

§ 308. Intoxication or drugged condition.
Intoxication or drugged condition are not, as such, defenses to a criminal charge; but in any prosecution for any offense, evidence of intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to negative an element of the offense.

This provision did not limit the use of evidence of voluntary intoxication to an offense requiring a specific mens rea. It followed the Model Penal Code [Section 2.08(1) Proposed Official Draft, 1962] form of the defense and looked to all elements of the crime alleged to determine whether the offense required proof of some actual purpose or awareness that the intoxication might negate. If such an element was required under the definition of the crime, then evidence of voluntary intoxication was permitted to negate its existence.

After promulgation of the original version of section 308, this Court was again called upon to consider the question in relationship to crimes that occurred prior to the Crimes Code of 1972. In Commonwealth v. Graves [461 Pa. 118, 334 A.2d 661], supra, the Court concluded that evidence of intoxication could be introduced to negate intent in crimes possessing a specific intent. Thus Graves went beyond Tarver’s limited application to murder of the first degree and yet did not go as far as section 308’s application to crimes that did not require a specific mens rea.

Subsequent to our decision in Graves, supra, the legislature saw fit to revise section 308 to its present form. The present version of section 308 is virtually an adoption of the Tarver view.

(Footnotes deleted.) Id., 495 Pa. at 576, 435 A.2d 155.

Section 308 provides:

§ 308. Intoxication or drugged condition. Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negate the element of intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.

Clearly, our Legislature has limited the purposes for which intoxication evidence can be used in such a way as to preclude the introduction of evidence of voluntary intoxication in this case. Appellant argues, however, that the amendment to Section 308, which applies to voluntary intoxication, suggests that evidence of involuntary intoxication can still be used. He contends that the lower court did not clearly explain to the jury the defense of involuntary intoxication. However, because we find no evidence to support a finding that appellant’s intoxication was not voluntary, we find no error in this regard. Appellant does not contend that he was coerced into taking either medication (which he cannot even clearly remember having taken on the day in question) or alcohol. If he was mistaken in his belief that he could withstand the effects of the combination, that hardly makes his having consumed them involuntary. An instruction on involuntary intoxication was not called for in this case.

Appellant’s final contention is that the trial court inaccurately reviewed the evidence during his jury instructions. Appellant’s complaint concerns the court’s summary of appellant’s physician’s testimony. The doctor testified as to the instruction he gave to appellant concerning his use of the tranquilizer tranxene. Appellant sought to show that he had not been warned as to the effect of combining alcohol with the tranquilizer.

In reviewing the court’s charge to the jury, it is by now axiomatic that we read and review it in its entirety. Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980). Error cannot be predicated on isolated excerpts of the charge. It is the general effect of the charge that controls. Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978).

The doctor testified that he routinely advised his patients against mixing alcohol and the drug. On cross-examination, the doctor stated that he could not recall precisely what he had told Mr. Todaro. Our examination of the record indicates that the court did in fact remind the jury of the doctor’s uncertainty, despite having told them that the doctor testified, “I told him that he should not use alcohol with tranxene. Furthermore, in view of our conclusion that there was no evidence to support a finding that appellant consumed either the alcohol or drugs involuntarily, the question of the instructions given to him is not pertinent to this case.

Order affirmed.

HOFFMAN, J., files concurring opinion.

HOFFMAN, Judge,

concurring:

Although I agree with the majority’s disposition of this case, I would hold that appellant has waived any objection to the jury charge by failing to take specific exceptions at trial.

Appellant concedes that he did not specifically except to the court’s charge and, in fact, did not even discover the purported misstatement of the evidence until after the notes of testimony were transcribed. He contends, however, that his general exception to the court’s summary of the evidence was sufficient to notify the court of his objection and preserve it for review. I disagree. “A general exception to the charge to the jury will not preserve an issue for appeal. Specific exception shall be taken to the language or omission complained of.” Pa.R.A.P. 302(b). A specific exception must be lodged to preserve an objectionable charge for post-trial motions, Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981), as well as for appellate review, Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Accordingly, because appellant failed to take a specific exception to the alleged misstatement, I would find the issue waived.

      . 18 Pa.C.S.A. § 308, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, as amended, April 7, 1976, P.L. 72, No. 32 § 1.

      . See Commonwealth v. Bridge, supra, at 154 note 3. We, too, include in the definition of intoxication the resultant state caused by drugs.


author: BROSKY, Judge:

text:
    446 A.2d 1308
    Linda GOULD, Appellant, v. William F. CLAYTON, Jr.
    Superior Court of Pennsylvania.
    Argued March 16, 1981.
    Filed June 18, 1982.

      Daniel L. Haller, Aliquippa, for appellant.
    Layden C. Sadecky, Beaver, submitted a brief on behalf of appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

On May 28, 1974, appellant, Linda Gould, gave birth to a child out of wedlock. On May 15, 1979, appellant filed a civil complaint in support/paternity with the Domestic Relations Division of the Court of Common Pleas of Beaver County, pursuant to Pennsylvania Legislative Act No. 46. The complaint alleged that appellee is the natural father of her minor child and as such owes a duty of support with which he has failed to comply. Appellee filed an answer and new matter denying paternity and asserting that appellant’s cause of action was barred by the statute of limitations because she had not instituted a criminal proceeding to determine paternity prior to the child’s second birthday, pursuant to 18 Pa.C.S.A. § 4323(b). The case was heard by the Honorable Joseph S. Walko of the Court of Common Pleas of Beaver County on November 19, 1979. On January 9,1980, the court granted appellee’s motion for judgment on the pleadings, on the ground that Section 25(b) of the Judiciary Act of 1976 prohibits revival of any cause of action fully barred prior to the effective date of the Act [June 27, 1978] and that appellant’s claim was therefore barred after May 28, 1976, the date of the child’s second birthday. On January 30, 1980, appellant filed this appeal with our court. On December 12, 1980, the appeal was consolidated with Commonwealth ex rel Lucretia Johnson v. Melvin N. King, a case which posed the same issue for resolution. The two cases were later severed by Per Curiam Order dated June 2, 1981, and King was certified to be argued before the court en banc.

The issue before us is whether appellant’s civil action for support is barred by the running of the two-year criminal statute of limitations when paternity is denied. Following the reasoning of Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982), and Commonwealth ex rel. Johnson v. King, 297 Pa.Super. 431, 444 A.2d 108 (1982), we hold that appellant’s claim for support is not barred. Williams held that the repeal of the criminal statute of limitations never extinguished the civil right to support, and that the enactment of the new civil support statute provided a new and independent procedure for the enforcement of an existing and continuing right.

In the case at bar, no criminal prosecution was commenced, either before or after the child’s second birthday. Therefore, there was no prosecution already commenced under 18 Pa.C.S.A. § 4323 as of the effective date of the repeal of said statute on June 27, 1978. Had there been a prosecution already commenced prior to June 27, 1978, the criminal statute would continue to be applicable. See Williams v. Wolfe, supra. Since there was not, however, the requirement of a criminal determination of paternity was eliminated as of June 27, 1978, even though the cause of action arose prior to that date. Therefore, although appellant’s right to bring a criminal prosecution is forever barred, her right to bring a civil action for support is not, since her right to bring a civil action is not dependent upon the (prior) institution of a criminal prosecution.

Here, appellant is seeking support only for the period of time forward from the date of the filing of her complaint on May 15,1979. Accordingly, allowance of her cause of action does not involve a retroactive application of the statute. Williams v. Wolfe, supra.

For these reasons, we hold that appellant’s action, instituted after the effective date of 42 Pa.C.S.A. § 6701 et seq., is not barred by the running of the now-repealed 18 Pa.C.S.A. § 4323(b).

There is another, equally compelling reason why appellant’s claim should not be deemed to be barred here. The former criminal statute, 18 Pa.C.S.A. § 4323(b), limited an illegitimate child’s right to receive support by requiring that a criminal prosecution in paternity be instituted within two years of the birth of the child prior to the institution of a civil suit for support. No such limitation, however, was placed upon a legitimate child, who could bring an action for support anytime after birth. In recognizing that statutes containing such time limitations violate equal protection, the court in State of Florida, Department of Health and Rehabilitative Services v. West, 378 So.2d 1220, 1222 (Fla.1979) held:

[T]he legislature is treating legitimate children differently from illegitimate children. Because of this statute, the rights of the illegitimate child may be foreclosed forever by failure of his mother to file suit through her ignorance, neglect, or sympathy with the father and through no fault of the child.

See also State of Montana, Department of Revenue, Department of Social Rehabilitative Services v. Wilson, 634 P.2d 172 (Mont.1981); Stringer v. Dudoich, 92 N.M. 98, 583 P.2d 462 (1978); County of Lenoir ex rel. Cogdell v. Johnson, 46 N.C.App. 182, 264 S.E.2d 816 (1980).

By establishing a new, wholly independent means of securing support, the Legislature, in enacting 42 Pa.C.S.A. § 6701 et seq., sought to remedy the inequity caused by the former criminal statute of limitations. Accordingly, the repeal of the criminal statute cannot be interpreted as extinguishing the civil right to support established by 42 Pa.C.S.A. § 6701 et seq. There can be no doubt that in Pennsylvania, both the mother and father of a child born out of wedlock have the continuing duty to support such child. Commonwealth v. Rebovich, 267 Pa.Super. 254, 406 A.2d 791 (1979). To hold that appellant’s claim here is barred, therefore, would be to limit an illegitimate child’s right to receive support from his father, which is violative of equal protection.

For these reasons, we hold that appellant’s claim for support is not barred. Accordingly, the order of January 9, 1980 is reversed and the case is remanded for further proceedings consistent with this opinion.

      . Act of April 28, 1978, P.L. 106, No. 46, § 2, eff. June 27, 1978.

      . 18 Pa.C.S.A. § 4323(b), repealed by Act of April 28, 1978, P.L. 106, No. 46, § 3, eff. June 27, 1978, provided:
      § 4323 Neglect to Support bastard
      (b) Limitation of action—All prosecutions under this Section must be brought within two years of the birth of the child, except where the reputed father shall have voluntarily contributed to the support of the child, or shall have acknowledged in writing his paternity, in which case a prosecution may be brought at any time within two years of any such contribution or acknowledgment by the reputed father.

      . Act of July 9, 1976, P.L. 586, No. 142, § 25(b), eff. June 27, 1978.

      . Appeal from order dated June 17, 1980, Court of Common Pleas, Civil Division, Beaver County, at No. 415 DR 1977. (J. 1359/81).

      . See footnote 2, supra.

      . 42 Pa.C.S.A. § 6701 et seq.

      . We note that there is still a time limit [six years] placed upon actions brought by illegitimate children but not by legitimate children. To subject a child bom out of wedlock to a limitation period, however reasonable, is to limit that child’s right to receive support from his father. This matter, however, is for the Legislature to rectify.


author: WIEAND, Judge:

text:
    446 A.2d 1311
    COMMONWEALTH of Pennsylvania v. Glenn Lee JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 14, 1981.
    Filed June 18, 1982.
    Affirmed in Part and Vacated in Part Dec. 16, 1982.

      John H. Corbett, Jr., Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   WIEAND, Judge:

Glenn Lee Johnson was tried by jury and convicted of rape and indecent assault. Post-verdict motions were denied and Johnson was sentenced to imprisonment for a period of not less than five (5) nor more than ten (10) years. On direct appeal he argues (1) that pre-trial identification procedures were unduly suggestive and that the victim’s identification testimony, therefore, should have been suppressed; and (2) that the trial court erred by refusing to permit impeachment of the complaining witness by evidence of an arrest for shoplifting. We find no merit in these arguments and, accordingly, affirm the judgment of sentence.

The charges against Johnson arose out of an incident which occurred on October 12, 1978, in a dormitory on the campus of the University of Pittsburgh. At approximately 3:30 P.M. on that day, Carmyn Taylor, a student, was assaulted while washing her hands in a woman’s restroom. Her assailant grabbed her, pushed her against the wall, and removed her jeans and underwear. He fondled her breasts and engaged in sexual intercourse while she was pinned against the wall. The sexual act lasted approximately ten minutes during which the rapist compelled the victim to look into his face.

That same evening, Ms. Taylor was shown twenty photographs of persons who were known sexual offenders and who approximated the description which she had given to the police. Without any prompting she selected photographs of three persons whose appearances were similar to that of her assailant. On the following day, she was shown the same photographs and again selected the same three. Included in her selections was a photograph of appellant. On October 15, she observed her attacker while he was standing on a street corner several blocks from the dormitory. Thereafter, she selected appellant’s photograph specifically and positively identified him as the person who had raped her.

“The central concern where any identification is offered is whether, under the totality of circumstances, the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). A pretrial identification will not be set aside unless the facts demonstrate that the identification procedure ‘was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968).” Commonwealth v. Linder, 284 Pa.Super. 327, 337, 425 A.2d 1126, 1131 (1981). “[Sjuggestiveness ... is only one factor to be considered in determining the admissibility of identification testimony. Suggestiveness alone does not warrant exclusion. Instead ‘[i]t is the likelihood of misidentification which violates a defendant’s right to due process. . .. ’ ” Commonwealth v. Ransome, 485 Pa. 490, 495, 402 A.2d 1379, 1382 (1979), quoting from Commonwealth v. Sexton, 485 Pa. 17, 22, 400 A.2d 1289, 1291 (1979). Factors to be considered in evaluating the likelihood of misidentification in a particular instance are:

. . . the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154. See also Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972).

Although Manson v. Brathwaite, supra, involved an allegedly suggestive confrontation, the factors to be considered in evaluating an alleged due process denial resulting from a photographic identification procedure are the same. Commonwealth v. Fowler, 466 Pa. 198, 207, 352 A.2d 17, 21 (1976).

Under the circumstances present in this case, it is clear that there was neither undue suggestiveness nor any danger of misidentification that required suppression of the victim’s identification of appellant.

During the course of being raped, Ms. Taylor had an opportunity to observe appellant at close range and in good lighting for a period of at least ten minutes. During that period appellant repeatedly turned her face toward him. Following the attack but prior to examining any photographs, the victim provided police with a detailed description of her assailant. This description closely resembled the actual appearance of appellant. At no time did she fail to include appellant in her selection of photographs, and she became certain after she saw her assailant again while he was standing on a corner near the dormitory. Any suggestiveness inherent in a repeated photographic show-up, therefore, was inconsequential. It did not unduly emphasize appellant’s likeness and did not create a danger of misidentification. The trial court properly refused to suppress the victim’s identification testimony.

Appellant’s final contention is that the trial court erred in refusing impeachment of the victim by evidence concerning a prior conviction for the summary offense of retail theft. However, the record disclosed only that the victim had been arrested on such a charge; it does not show a conviction. “We have long held that prior bad acts not resulting in a conviction are not admissible to impeach a witness’ credibility. Thus, the fact of a prior arrest cannot be used to challenge credibility.” Commonwealth v. Katchmer, 453 Pa. 461, 464, 309 A.2d 591, 593 (1973). See also Commonwealth v. Burton, 491 Pa. 13, 19, 417 A.2d 611, 614 (1980) (prior criminal acts not resulting in a conviction are not admissible to impeach a witness’ credibility); Commonwealth v. Ross, 434 Pa. 167, 170, 252 A.2d 661, 662 (1969). The rationale for such a distinction, of course, is the vast difference between mere accusation and the conclusive determination of guilt by conviction. Where, as here, there was no evidence of a conviction, the trial court did not err by refusing to allow cross-examination or direct evidence to show that such a charge had been made.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3121.

      . 18 Pa.C.S. § 3126.


author: McEWEN, Judge:

text:
    446 A.2d 1313
    COMMONWEALTH of Pennsylvania v. Ronald A. FRANKLIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 1, 1981.
    Filed June 18, 1982.

      Thomas A. Natishyn, Stroudsburg, for appellant.
    James P. Gregor, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   McEWEN, Judge:

We here review an appeal from a judgment of sentence in which the sole contention of appellant is that the sentence of the court to a term of imprisonment of two and one half years to five years upon a charge of aggravated assault was excessive. We do not agree and, accordingly, affirm.

The criminal justice system has received in recent years abundant attention from the society it is designed to serve and that attention, often displayed by distress, is ever so frequently directed to the subject of sentencing. There has even been a simultaneous, although unrelated, mandated revision—more of the practices than of the principles—of Pennsylvania law upon sentencing by not only the legislature but also by the Supreme Court. The eminent Pennsylvania Supreme Court Justice Robert N. C. Nix, Jr., quite aptly noted in Commonwealth v. Cottle, 493 Pa. 377, 382-83, 426 A.2d 598, 600 (1981):

Traditionally, appellate courts in this jurisdiction have been reluctant to intrude upon the sentencing discretion of trial courts. We have long maintained that the appellate scope of review of the sentencing decision should be limited to sentences that exceeded the statutorily prescribed limits or sentences which were so manifestly excessive as to constitute a constitutionally impermissible sentence. This perception evolved from our adherence to the concept of individualized sentencing and the belief that the effectuation of that objective was best served by granting broad discretion to the sentencing courts. More recently, question has been raised as to the wisdom of conferring upon the sentencing court almost unlimited, unstructured and unreviewable discretion. Both the legislature and this court have been gravitating to a curtailment of the unlimited discretion originally entrusted to the sentencing court, (citations and footnotes omitted).

The Pennsylvania Supreme Court has rejected as improper sentences imposed in accordance with a pre-established policy or standard for a particular offense since Pennsylvania has long been committed to the philosophy of sentencing aimed to promote rehabilitation as well as to provide punishment. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). These dual aims may be achieved when a sentencing judge has broad discretion to “determine, among the sentencing alternatives and the range of permissible penalties, the proper sentence to be imposed.” Id., 466 Pa. at 130, 351 A.2d at 656.

The Supreme Court in Martin made clear that the nature of the criminal act was not to be the sole basis for the determination of the length of sentence but that, in addition, inquiry was to be made into the character of the convicted individual and into any extenuating or mitigating circumstances, so as to enable the sentencing court to exercise its broad discretion in accordance with the applicable statutory requirements.

In the Martin opinion, the Supreme Court stated that it had earlier held in Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973), that when the trial court orders a presentence investigation report, defense counsel has a right to examine its contents before sentencing and, if he contests any portion, to offer evidence in rebuttal.

The Sentencing Code delineates the sentencing alternatives as (1) an order of probation; (2) a determination of guilt without further penalty; (3) partial confinement; (4) total confinement; and (5) a fine; and, while allowing a mingling of those alternatives, does by clear mandate declare that when selecting the alternative(s) to be imposed, “The court shall follow the general principle that the sentence to be imposed should cause confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community and the rehabilitative needs of the defendant.”

Our Supreme Court observed in Martin, supra 466 Pa. at 130 n. 20, 351 A.2d at 656 n. 20, that this legislative mandate was a codification of the philosophy that had long been implicit in Pennsylvania law.

The Sentencing Code also directs:

In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of the sentencing, a statement of the reason or reasons for the sentence imposed. 42 Pa.C.S.A. § 9721(b).

The distinguished Pennsylvania Supreme Court Justice Samuel J. Roberts provides in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) a most comprehensive treatise upon the reasons for and the benefits of such a requirement.

The Sentencing Code also provides specific grounds which are to be accorded weight in favor of an order of probation, while it commands that the court, as a condition precedent to a sentence of total confinement, reach quite specific conclusions after reflection upon the nature of the offense and the character of the defendant.

The Supreme Court held in Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977) that the record of the sentencing proceedings must reveal that the trial court concluded that probation and partial confinement were not appropriate. See also Commonwealth v. Wicks, 265 Pa.Super. 305, 401 A.2d 1223 (1979).

The Sentencing Code has since its enactment been extensively discussed in appellate decisions. Those decisions make clear that the specific factors which the sentencing code has enumerated provide the sentencing court with guidelines for articulation of the reasons for the sentence and that, absent a statement of reasons, the record will not reveal whether the legislatively mandated factors had been considered. Commonwealth v. Kostka, supra, 475 Pa. at 92, 379 A.2d at 888; Commonwealth v. Riggins, supra 474 Pa. at 135, 377 A.2d at 151; Commonwealth v. O’Brien, 282 Pa.Super. 193, 197, 422 A.2d 894, 896 (1980). And, while the statement of the court at the sentencing proceedings need not specifically cite or include the language of the sentencing code, the statement of reasons provided by the court must demonstrate that the court has considered the factors specified in the code:

It is better practice for the court to include in its statement of reasons for the sentence some reference to the guidelines specified in the Sentencing Code, with some explanation of how consideration of those guidelines affected the determination of sentence. Still, we should not hold a statement of reasons insufficient, and therefore require vacation and remand, when it is apparent that even though the court made no reference to the guidelines, it did consider and apply them. Commonwealth v. Wareham, 259 Pa.Super. 527, 534, 393 A.2d 951, 954 (1978). (Citation omitted).

See also Commonwealth v. Doyle, 275 Pa.Super. 373, 389, 418 A.2d 1336, 1344 (1979); Commonwealth v. Bachert, 271 Pa.Super. 72, 82, 412 A.2d 580, 586 (1979); Commonwealth v. Wicks, supra, 265 Pa.Super. at 314, 401 A.2d at 1227.

While the flurry of both legislative enactment and judicial expression reflects, in the view of most scholars and authorities, a more enlightened approach to a most troublesome social subject, that activity might also be considered in some ways to have been simply a reexpression of traditional precepts:

The constraints placed upon the trial court in the exercise of its discretion are that it must not overlook pertinent facts, disregard the force of the evidence, commit an error of law, or inflict punishment exceeding that prescribed by statute. The trial court must thoroughly examine the facts and circumstances of the crime and the background and character of the defendant, and should consult a pre-sentence report if one has been prepared, especially where, as here, incarceration for one year or more is a possible disposition. Likewise, the court should consider any information in the record bearing on degree of punishment. Commonwealth v. Knight, 479 Pa. 209, 212-13, 387 A.2d 1297, 1299 (1978) (citations omitted).

See also Commonwealth v. Doyle, supra, 275 Pa.Super. at 380, 418 A.2d at 1340; Commonwealth v. Wicks, supra 265 Pa.Super. at 310, 401 A.2d at 1225; Commonwealth v. Valentin, 259 Pa.Super. 496, 500, 393 A.2d 935, 937 (1978).

A review of both the traditional principles and of the recent legislative and judicial edicts provides the following summary of precepts for the sentencing court:

The court must order, or record the reasons for not ordering, a presentence investigation report pursuant to the terms of Pennsylvania Rule of Criminal Procedure 1403, unless the case is within the narrow exceptions of § A(2) of that Rule.
The court must afford counsel for the defendant the right to examine the presentence report before sentencing and, if counsel contests any portion of that report, must afford counsel the right to offer evidence in rebuttal.
The court must afford the defendant, counsel for the defendant and counsel for the Commonwealth the opportunity to present information and conduct argument. The court must consider any information in the record, including the presentence report, that bears upon the degree of punishment and must thoroughly examine (1) the facts and circumstances of the crime and (2) the facts and circumstances of the background and character of the defendant and, in doing so, must not overlook pertinent facts or disregard the force of evidence or commit an error of law.
The court cannot impose a sentence pursuant to any predetermined policy or impose a sentence that exceeds the maximum prescribed by the statute.
The court must provide an indication that it concluded that probation and/or partial confinement were not appropriate.
The court can only impose total confinement if it is of the opinion that total confinement is necessary because: (1) there is undue risk that during the period of probation or partial confinement the defendant will commit another crime; (2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or (3) a lesser sentence will depreciate the seriousness of the crime of the defendant. The court must express upon the record the reasons for the sentence that is imposed. The court is well advised to make specific reference to the statutory guidelines when expressing the reasons for the sentence imposed.

Certain of these precepts are quite specific while others, of course, are somewhat abstract, resembling more notion than regulation. It might be said that certain of the precepts simply call for the judge to impress upon the record the conscious factors that compose the basis for the sentence, some of which, in the past, while certainly present, many times went unexpressed; it has already been said that none of the precepts alter the traditional duty of the sentencing judge. And yet, for whatever structure, balance, standardization and clarity of perspective may have been achieved in recent years through the emanation provided by both legislative and judicial effort, it would seem that acceptance by the legislature of the guidelines for sentencing recently adopted by the Pennsylvania Commission on Sentencing finds us at the threshold of the transformation sought by the General Assembly when it established in 1978 the Pennsylvania Commission on Sentencing to effect “a standard statewide framework for sentencing.” Comment to 204 Pa.Code, Ch. 303, Pa.Bull.Vol. 11, No. 42; Saturday, October 17, 1981 at p. 3597.

We here review the proceedings of the sentence imposed by the learned and distinguished Forty-Third Judicial District Common Pleas Court Judge Harold A. Thomson, Jr., as a result of the guilty pleas by appellant to a charge of aggravated assault. Counsel for appellant agreed at the time the plea was entered that the following statement by the District Attorney to the court was an acceptable summary of the crime:

MR. MARSH [District Attorney of Monroe County]: Yes, sir. This case arises out of an incident taking place on November 19, 1979 in the Borough of Stroudsburg about 3:30 in the afternoon. The victim in this case, Ira Hayes, a 14 year old boy present in the courtroom accompanied by his parents, was leaving the East Stroudsburg School on the way home from school. Apparently, Mr. Franklin and some of his friends approached the victim, Ira Hayes, and some conversation took place, at which time Mr. Franklin allegedly asked Mr. Hayes if he could give him a dollar, and Mr. Hayes told him no, he couldn’t, or he didn’t have a dollar, and the conversation went back and forth between Mr. Hayes and Mr. Franklin about this dollar. Ultimately, the dollar was not given to Mr. Franklin, and Mr. Franklin, who was wearing a cast on his arm, began striking Mr. Hayes in the face and head with this cast, knocking him down. The incident took place over a short period of time. He was struck a number of times. Eventually, the victim got away and ran home. He explained what happened to his parents, who called the police. The victim was taken to the hospital in East Stroudsburg, where he was treated by Dr. Eisenhart. He had x-rays done. He suffered an injury to his head as a result of the blows.
THE COURT: Mr. Natishyn, you have heard the statement of the District Attorney. 1 would ask you at this time if you have any counterstatement, or if you generally agree with what has been stated?
MR. NATISHYN: Your Honor, we accept the statement as correct.

The guilty plea proceedings were concluded on January 7, 1980 and the imposition of sentence was deferred by the court pending presentence investigation. The sentencing hearing was held on February 25, 1980 and a hearing upon the petition of appellant to reconsider the sentence was held on June 9, 1980. A review of the transcript of the sentencing hearing reflects the compliance of the judge with all of the requirements. After counsel for the defendant had addressed the court on behalf of appellant including the expression by counsel of his disagreement with the position of the probation officer that appellant was not amenable to any kind of rehabilitation, and after appellant had declined to make any statement to the court, the court stated:

THE COURT: Mr. Natishyn [defense counsel], I couldn’t disagree with you more. This particular defendant, Ronald Franklin, has been given many opportunities for rehabilitation. He has a long record, as you are probably aware, not only as an adult, but as a juvenile, and he has been in a number of institutions, and a number of people have counseled him and worked with him. He has gotten every benefit our system can try to give him. He has been, for example, in Glen Mills School. He was assigned his own counselor. Someone was with him at all times. He ran away from there. He was in and out of any number of institutions where people have tried to help him, and to work with him. I cannot imagine anybody who has ever come through the system where more people have tried to rehabilitate, and tried to counsel. It is just not a true statement of fact to say nobody has tried to work with him, or tried to rehabilitate him. It gets down to the old story that no one can impose rehabilitation upon you if you do not want to be rehabilitated. You have to rehabilitate yourself. No one can rehabilitate you.
Looking at his record, it goes back to 1975 as a juvenile. He has an extensive record involving serious crimes, including Burglary, Theft, and Criminal Mischief, Arson, Robbery. He has an adult record for Burglary, which he has served time for. He has assaultive crimes in addition to the crime he is here for today. As to the crime he is here for today, he showed complete disregard for other people. He assaulted this younger boy in a very callous way, and injured him. I just can’t conclude anything else but that he is a threat to the general public and to himself.

While the court did not make specific reference to the statutory guidelines, the court provided a clear indication of its conclusions that probation or partial confinement were not appropriate as well as that appellant presented an undue risk and was in need of institutional commitment for commission of so serious an offense. While at the hearing upon the petition for reconsideration, counsel for the defendant referred to an auditory-perceptual problem suffered by appellant so that the judgment and character development of appellant was not commensurate with his age, the court responded directly to that contention. It may be noted that the transcript of the hearing upon the petition for reconsideration seems to indicate the application for reconsideration was provoked every bit as much by the distress of appellant at the fact of imprisonment as much as the prescribed length of it.

The prevailing principle may be stated:

It is true that the sentence imposed is normally left undisturbed on appeal because the trial court is in a far better position to weigh the factors involved in such a determination. However, we have held that the court’s discretion must be exercised within certain procedural limits, including the consideration of sufficient and accurate information. Commonwealth v. Martin, supra, 466 Pa. at 131, 351 A.2d at 657.

We have earlier catalogued the current “certain procedural” limits that restrict the discretion of the sentencing court. Our review of the record compels the conclusions that the court observed all of those procedural limits and requirements and that the sentencing court did not abuse its discretion by imposing an excessive sentence. We, therefore, will not disturb the sentence imposed.

Judgment of sentence affirmed.

      . Pennsylvania Rule of Criminal Procedure 1404(a)(2) provides that counsel for the defendant may inspect and copy the pre-sentence report. That same subsection was amended on December 14, 1979, effective April 1, 1980, by deletion of the following provision:
      “... but counsel shall be given the opportunity to comment thereon before the imposition of sentence.”
      The comment upon the 1979 amendment notes that the deleted language “was viewed as unnecessary in light of the similar provision in Pa.R.C.P. 1405(a)” which provides:
      Rule 1405. Sentencing Proceeding. At the time of sentencing, the judge shall:
      (a) afford the defendant the opportunity to make a statement in his own behalf and afford counsel for both parties an opportunity to present argument and information relative to sentencing;
      The Pennsylvania Supreme Court, in Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973), clearly expresses the right of defense counsel to examine the contents of the presentence investigation report; while the Court in Phelps did not specifically express the right of defense counsel to offer rebuttal evidence to any portion of that report, the Supreme Court, in Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), states that Phelps expressed not only the right to examine the contents of a pre-sentence investigation report but also the right to offer rebuttal evidence to any portion of that report. It should be noted that Justice Samuel J. Roberts is the author of the Phelps opinion as well as the majority opinion in Martin in which the holding of Phelps is interpreted as providing defense counsel with the right to offer rebuttal evidence to the contents of a pre-sentence report. The right to offer such rebuttal evidence is quite a natural inferential right from the right to examine the pre-sentence investigation report since the right to examine the report is not only hollow but empty, if defense counsel, upon examining the report and finding contested information, were unable to offer rebuttal evidence. Rule of Criminal Procedure 1405 seems to confer the right to offer such rebuttal evidence since it directs the sentencing court to “afford counsel ... an opportunity to present ... information relative to sentencing....”

      . Act of December 6, 1972, P.L. 1482, No. 334 § 1301, added December 30, 1974, P.L. 1052, No. 345, 42 Pa.C.S.A. § 9701 et seq.

      . 42 Pa.C.S.A. § 9721(a).

      . 42 Pa.C.S.A. § 9721(b).

      . 42 Pa.C.S.A. § 9722. Order of probation.
      The following grounds, while not controlling the discretion of the court shall be accorded weight in favor of an order of probation:
      (1) The criminal conduct of the defendant neither caused nor threatened serious harm.
      (2) The defendant did not contemplate that his conduct would cause or threaten serious harm.
      (3) The defendant acted under a strong provocation.
      (4) There were substantial grounds tending to excuse or justify the criminal conduct of the defendant, though failing to establish a defense.

        (5) The victim of the criminal conduct of the defendant induced or facilitated its commission.
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime.
      (8) The criminal conduct of the defendant was the result of circumstances unlikely to recur.
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment.
      (11) The confinement of the defendant would entail excessive hardship to him or his dependents.
      (12) Such other grounds as indicate the desirability of probation.

      . 42 Pa.C.S.A. § 9725. Total confinement.
      The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
      (1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
      (2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
      (3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

      . Rule 1403. Aids in Imposing Sentence.
      A. Pre-sentence Investigation Report.
      (1) The sentencing judge may, in his discretion, order a pre-sentence investigation report in any case.
      (2) The sentencing judge shall place on the record his reasons for dispensing with the pre-sentence investigation report if the court fails to order a pre-sentence report in any of the following instances:
      (a) where incarceration for one year or more is a possible disposition under the applicable sentencing statutes; or
      (b) where the defendant is less than twenty-one years old at the time of conviction or entry of a plea of guilty; or
      (c) where a defendant is a first offender in that he has not heretofore been sentenced as an adult.
      (3) The pre-sentence investigation report shall include information regarding the circumstances of the offense and the character of the defendant sufficient to assist the court in determining sentence.
      B. Psychiatric or Diagnostic Examination.
      After a finding of guilt and before the imposition of sentence and after notice to counsel for both parties, the sentencing judge may order the defendant to
      (a) submit to psychiatric observation and examination, and for this purpose the defendant may be remanded to any available clinic, hospital or institution for a period not exceeding sixty (60) days, or
      (b) submit to diagnostic observation and examination, and for this purpose the defendant may be committed to a state correctional diagnostic and classification center for a period not exceeding sixty (60) days. The report of such examination may be considered the equivalent of a pre-sentence investigation report.


text:
    446 A.2d 1320
    COMMONWEALTH of Pennsylvania v. Michael KALSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 27, 1981.
    Filed June 18, 1982.

      Basil G. Russin, Public Defender, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before WICKERSHAM, WIEAND and McEWEN, JJ.
   McEWEN, Judge:

Appellant here contends the sentence imposed by the Common Pleas Court of not less than two years nor more than four years for his escape from the County prison was manifestly excessive. We disagree and, therefore, affirm.

Appellant escaped from the Luzerne County Prison in Wilkes-Barre on April 5, 1980. He was subsequently apprehended. Within a few days, on April 20, 1980, he participated in an attempted escape from the same prison during which a prison guard was assaulted. The defendant was tried and convicted by a jury on October 17, 1980 for the offenses arising out of the attempted escape of April 20, 1980. While on trial for that attempted escape of April 20, the appellant again escaped from custody but was quickly apprehended. After his conviction, he pleaded guilty on October 20, 1980 to the first escape on April 5, 1980, and was sentenced on December 30, 1980 to the two to four year term of imprisonment we here review.

The crime for which the sentence was imposed is a felony of the third degree and carries a maximum sentence of imprisonment of not more than seven years. The record in the case for which the sentence we here review was imposed indicates the escape occurred when the appellant used some tools and a hydraulic jack from the carpenter shop of the prison to cut the lock on the supply room door and wedged the jack sufficiently under the door to permit escape through the door.

Appellant argues that the sentence is manifestly excessive when compared with other sentences imposed in Luzerne County for the same offense. That contention contravenes the traditional and well established practice of individualized sentencing. The American Bar Association Standards for Criminal Justice emphasize the importance of individualized sentencing, and consider an evaluation of the particular offense, as well as the offender, to be essential. The Pennsylvania Supreme Court has stated:

The sentence must be imposed for the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. See 18 Pa.C.S. § 1321(b) (Supp.1975). At least two factors are crucial to such determination—the particular circumstances of the offense and the character of the defendant. Pa.R.C.P. § 1403(a)(2) provides that all pre-sentence reports shall include such information. We hold that regardless whether a pre-sentence report is ordered, the sentencing court must at least consider these two factors in a sentencing determination. Failure to give such individualized consideration requires that these sentences be vacated. Commonwealth v. Martin, 466 Pa. 118, 133, 351 A.2d 650, 658 (1976) (footnote omitted).

See also, Commonwealth v. Cottle, 493 Pa. 377, 426 A.2d 598 (1981); Commonwealth v. Knight, 479 Pa. 209, 387 A.2d 1297 (1978); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

This Court declared, in a quite perceptive opinion by Judge Richard DiSalle, Commonwealth v. Harris, 286 Pa.Super. 601, 609, 429 A.2d 685, 689 (1981):

The fact that appellant’s co-defendant received a lesser sentence does not necessarily lead to the conclusion that appellant’s sentence was too harsh. The trial court gave sufficient reason for its respective sentences, including, but not limited to, a consideration of appellant’s past criminal history, his failure to make use of the past opportunities made available to him at several juvenile institutions and the violence of the crimes for which he was being sentenced. Further, it is the policy of the Commonwealth to provide “individual sentencing” for defendants to permit more just sentencing. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976) (emphasis supplied).

See also Commonwealth v. Burton, 451 Pa. 12, 301 A.2d 675 (1973); Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980). If a judge may impose different sentences on individuals involved in the same occurrence, we are compelled to conclude that, when a particular offense has been committed in a particular county, the sentencing judge is not required to impose similar sentences for separate convictions of that offense.

Appellant has failed to provide any support for the argument that his sentence should be compared with sentences for similar offenses in Luzerne County. Neither the governing statute on sentencing nor the controlling case law require, or even suggest, that a sentencing judge should consider sentences imposed on other defendants in that county for the same crime. We reject this contention.

Appellant further contends that, in light of the particular circumstances of this case, the sentence was excessive. A timeless principle of this area of the law is that appellate courts are reluctant to intrude upon the sentencing discretion of the trial courts and normally leave the sentence undisturbed because the trial court is in a far better position to weigh the factors involved in such a determination. This discretion has, however, been circumscribed by not only judicial decision but also by the Sentencing Code (42 Pa.C. S.A. § 9701 et seq.) and by the Rules of Criminal Procedure.

We have already herein discussed the mandate of the Pennsylvania Supreme Court in Commonwealth v. Martin, supra, that the court must in a sentencing determination consider both the circumstances of the offense as well as the character of the defendant. The Sentencing Code (42 Pa.C. S.A. § 9721 through 9726) provides several possible dispositions for criminal offenses as well as guidelines for the sentencing court to consider as it selects the sentence for imposition. Both the Sentencing Code (42 Pa.C.S.A. § 9721) and Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) have provided a mandate that the sentencing court state on the record the reasons for the sentence; and this court has held that when determining whether the sentencing judge has abused his discretion by imposing a manifestly excessive sentence we must review the reasons expressed by the Judge for the sentence imposed. Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978).

As we have noted, the learned Luzerne County Common Pleas Court Judge Arthur D. Dalessandro imposed a two to four year sentence, a term of imprisonment well within the statutory maximum. Our review of the record compels the conclusion that the trial court observed all of the procedural limits and requirements placed upon it. The court had sufficient and accurate information concerning both the offense as well as the character and background of the defendant, including a presentence investigation report; the court evaluated this information, heard from both counsel for the defendant and the defendant himself and, in fact, discussed with defendant a portion of the report relating to his employment record; and the court made reference to the guidelines specified in the sentencing code when expressing a statement of reasons for the sentence. We cannot say the court abused its discretion by imposing an excessive sentence. We, therefore, leave the sentence undisturbed.

Judgment of sentence affirmed.

      . 18 Pa.Cons.Stat.Ann. 5121(a) (Purdon 1972).

      . 18 Pa.Cons.Stat.Ann. § 1103(3) (Purdon 1973).

      . Standards for Criminal Justice, Intro. to Ch. 18 (1979 Approved Draft 1980).

      . 42 Pa.Cons.Stat.Ann. § 9701 et seq. (Purdon 1981).


author: BECK, Judge:

text:
    446 A.2d 1323
    DANIEL K. D., Appellant, v. JAN M. H. (formerly D.).
    Superior Court of Pennsylvania.
    Argued Dec. 7, 1981.
    Filed June 18, 1982.

      Thomas J. Williams, Carlisle, for appellant.
    Wayne F. Shade, Carlisle, for appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   BECK, Judge:

Appellant, the natural father of two children, appeals an order of the Court of Common Pleas of Cumberland County which dismissed his petition to modify a court order awarding custody of his children to Appellee, the children’s natural mother. We affirm.

Following their marriage in 1969, Appellant and Appellee had two children—Alisa Marie born January 8, 1970, and Gwendolyn Ann born April 28, 1973. On January 3, 1976, Appellant and Appellee were divorced and agreed in writing inter se, each with the advice of counsel, that Appellee should have custody of their two children subject to certain visitation rights of Appellant. In April of 1980 Appellant filed a custody petition which caused the parties’ custody agreement to be reformulated and incorporated into a consent order issued by the court of common pleas on June 9, 1980, following an appearance by the parties before the court without a formal hearing. Pursuant to the consent order Appellee obtained “custody” of the children while Appellant acquired “temporary custody” of the children two of every three weekends during the academic year, four weeks during summer vacation, approximately one-half day of both Christmas and Easter, alternate children’s birthdays and other holidays.

On April 9, 1981, Appellant filed a petition to modify the extant custody order, alleging that a substantial change in circumstances had occurred since the consent order was entered. After a three-day hearing during which Appellant, Appellee, the parties’ current spouses, the two children, and numerous other witnesses testified, the court “confirmed” custody of the children in Appellee and dismissed Appellant’s petition for modification.

Appellant argues on appeal that the court of common pleas erred (1) in placing the burden of proof solely upon him rather than equally upon both natural parents and (2) in evaluating the effect of the alleged changed circumstances upon the children’s welfare.

The first inquiry in a custody modification proceeding is whether, since the entry of the existing custody order, there has been a substantial change in circumstances that would justify a court’s reconsideration of the custody disposition. Morris v. Morris, 271 Pa.Super.Ct. 19, 412 A.2d 139 (1979); In re Custody of Phillips, 260 Pa.Super.Ct. 402, 394 A.2d 989 (1978); Commonwealth ex rel. Hickey v. Hickey, 216 Pa.Super.Ct. 332, 264 A.2d 420 (1970), allocatur refused, May 25, 1970. The burden of proving a substantial change is upon the party seeking modification of the custody order. Commonwealth ex rel. Zaubi v. Zaubi (Zaubi I), 275 Pa.Super.Ct. 294, 418 A.2d 729 (1980), aff’d on other grounds, 492 Pa. 183, 423 A.2d 333 (1981) (affirmed under Section 5364(f) of the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S.A. § 5364(f): jurisdiction declined by reason of petitioner’s misconduct); Hickey.

In his petition for modification Appellant averred generally that circumstances had changed since entry of the consent order and averred specifically that Appellee intended to remove the children from the Commonwealth. The court of common pleas then conducted a hearing to examine Appellant’s allegations. See Commonwealth ex rel. O’Neill v. O’Neill, 224 Pa.Super.Ct. 338, 307 A.2d 381 (1973). After the hearing, the court issued a written opinion analyzing in detail the parties’ evidence as to the children’s frequent changes of residence while in Appellant’s custody, the remarriages of Appellant and Appellee, the quantity of time the children spent with both natural parents and the consequent bonds of affection that developed, the involvement of both Appellant and Appellee in the children’s schooling and other activities, the abilities of both natural parents to satisfy the children’s economic and emotional needs, the interaction of the children with their maternal and paternal grandparents, the alleged health problems of Appellee, and the apparent maturity and good adjustment of the children. The court concluded that the aforementioned evidence was not “sufficient to meet [Appellant’s] burden of proving a change of circumstances that would warrant a modification of the existing custody order.” (Emphasis added.)

The burden of proof articulated by the lower court, prevailed in this Commonwealth until recently. Under prior case law, the party seeking modification of a custody order not only had to prove a substantial change in circumstances to justify the court’s reexamination of the existing order but also had to establish that the change in circumstances so affected the children’s best interests as to require a modification of the existing order. See Commonwealth ex rel. Swanson v. Barry, 199 Pa.Super.Ct. 244, 184 A.2d 370 (1962); Commonwealth ex rel. Heller v. Yellin, 174 Pa.Super.Ct. 292, 101 A.2d 452 (1953); Commonwealth ex rel. Chumard v. Chumard, 168 Pa.Super.Ct. 188, 77 A.2d 660 (1951); 39 Am.Jur.2d Habeas Corpus § 152 (1968).

Under current case law, the party seeking modification of a custody award continues to have the burden of proving a substantial change in circumstances which will justify the court’s reconsideration of the extant custody award. Zaubi I. However, once a substantial change has been established, both natural parents share equally the burden of demonstrating with which parent the children’s best interests will be served. In re Custody of Frank, 283 Pa.Super.Ct. 229, 423 A.2d 1229 (1980); accord, Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super.Ct. 63, 434 A.2d 130 (1981). This standard of proof recognizes that to protect children’s best interests the courts must assess evidence without reliance upon presumptions that prevent the natural parents from standing in pari causa. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980); Oxenreider; Rummel v. Rummel, 263 Pa.Super.Ct. 97, 397 A.2d 13 (1979); In re Hernandez, 249 Pa.Super.Ct. 274, 376 A.2d 648 (1977).

In all cases of dispute between the father and mother of [a] minor child, as to which parent shall be entitled to its custody or services, the judges of the courts shall decide, in their sound discretion, as to which parent, if either, the custody of such minor child shall be committed and shall remand such child accordingly, regard first being had to the fitness of such parent and the best interest and permanent welfare of said child.
... In deciding what is in the best interest of the child, the court may not resort to presumption or otherwise shift the burden of proof; rather, the burden of proof is shared equally by both parents, and the court must award custody as the evidence dictates.

In re Custody of Frank, 283 Pa.Super.Ct. at 236, 423 A.2d at 1233 (citations omitted).

Despite the trial court’s incorrect allocation of the burden of proof in the case sub judice, both Appellant and Appellee submitted abundant evidence concerning their children’s welfare, including the testimony of disinterested witnesses. Hugo v. Hugo, 288 Pa.Super.Ct. 1, 430 A.2d 1183 (1981). The detailed record and comprehensive, written opinion provided by the hearing court have enabled this Court to “make an independent judgment based upon its own careful review of the evidence.” In re Custody of Liberto, 291 Pa.Super.Ct. 26, 28, 435 A.2d 201, 202 (1981); Oxenreider. Because both natural parents were afforded, and did fully exploit, equivalent opportunities to present evidence, we hold that the lower court’s application of the outmoded standard of proof as to the children’s best interest was harmless error in the instant case. Even without the benefit of the presumption, the evidence supports the lower court’s finding that circumstances had not changed so as to affect the children’s best interests and to require their being removed from Appellee’s custody and placed in Appellant’s custody.

Although the children have experienced several changes of residence while in Appellee’s custody, neither party contends that the children are maladjusted. Both children are honor students and are characterized by third-party witnesses as being quite mature for their ages. In re Custody of Liberto. The children have been in Appellee’s custody since 1976. See Oxenreider; In re Custody of Phillips. The older child testified that she could more freely discuss her problems with Appellee than with Appellant. Additionally, leaving the children in Appellee’s custody would permit the children to maintain their relationship with their half-brother with whom they have lived since his birth. Oxenreider. “[CJontinued residence of children with one parent may be controlling.” Hugo v. Hugo, 288 Pa.Super.Ct. at 6, 430 A.2d at 1185; Oxenreider.

Before the hearing court appellant vigorously argued that he was better able than Appellee to provide financial security for the children. Nevertheless, the lower court correctly found that the difference in material advantages offered by Appellant and Appellee was not dispositive where both parties could supply an adequate home environment for the children. Kessler v. Gregory, 271 Pa.Super.Ct. 121, 412 A.2d 605 (1979); see Hugo.

Appellant also maintained below that his recent remarriage was a material change that would affect the children’s welfare and that should enable him to assume custody of the children. However, Appellee established that her own remarriage had produced an environment in which the children had performed well over a period of years. Remarriage per se is not sufficient to warrant modification of a custody order. Chumará.

Finally, Appellant has asserted that Appellee’s intention to move the children to Vermont in conjunction with her husband’s having located employment in that state, militates against Appellee’s retention of custody. But as the hearing court prudently observed, Pennsylvania courts no longer adhere to a preference favoring a resident custodial parent. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Hugo; Davidyan v. Davidyan, 230 Pa.Super.Ct. 599, 327 A.2d 145 (1974). The lower court acknowledged that while the children’s moving to Vermont would weaken their relationship with Appellant who resides in Pennsylvania, the children’s staying in Pennsylvania with Appellant would weaken their relationship with Appellee if Appellee moved to Vermont. Davidyan. To condition an award of custody upon Appellee’s agreeing to remain within Pennsylvania would be “an undue interference with the mother’s freedom of movement.” Commonwealth ex rel. Steiner v. Steiner, 257 Pa.Super.Ct. 457, 463, 390 A.2d 1326, 1329 (1978); Commonwealth ex rel. E. H. T. v. R. E. T., 285 Pa.Super.Ct. 444, 427 A.2d 1370 (1981); Davidyan.

Citing R. E. T., Appellant claims that Appellee has shown herself to be an unfit parent because as of the date of the hearing below Appellee allegedly had made minimal preparations for the planned relocation of the children to Vermont. To the contrary, the record contains myriad examples of preparatory steps taken by Appellee and her current husband to assure a successful relocation. After Appellee and her husband had visited Vermont and had learned of employment opportunities for both Appellee (the sale of homemade crafts, i.e., crafts which Appellee could make without leaving the children’s home) and her husband (landscaping and grounds maintenance at year-round resort/residential communities), Appellee’s husband returned to Vermont to assess more carefully the actual business prospects and to request a business loan. Appellee’s husband also testified that he and Appellee had ascertained the availability of schooling and playmates for the children in Vermont and that he had investigated the rental of a home in Vermont which was being held for the family. The court below in its written opinion reasoned that as of the time of the hearing “the alleged move [was] not definite enough to prompt [Appellee] and her husband to actually buy a home in Vermont.”

Furthermore, the hearing court noted that the children had moved several times (intrastate within a small distance from Appellant’s home) while in their mother’s custody and had adjusted well to each change of location. The children and other witnesses testified that either moving to Vermont with Appellee or living in Pennsylvania with Appellant would require the children to enter new schools and make new acquaintances.

Based upon the testimony of several witnesses, the court below properly found that whether the children were to move to Vermont with Appellee or were to remain in Pennsylvania with Appellant, they would stay in close contact with their grandparents and other relatives active in their lives at the time of the hearing. See Hugo. Additional testimony indicated that Appellee’s sister and her family live in Vermont and that the sister’s children would be suitable playmates for the children of Appellee and Appellant. As the hearing court also noted, if the consent order were not modified, Appellant would continue to have visitation rights including the right to have the children live with him for four weeks during summer vacation. Thus, Appellant’s right to continue a relationship with the children would not be “unduly limited.” Commonwealth ex rel. Pierce v. Pierce, 493 Pa. at 299, 426 A.2d at 559.

Accordingly, we affirm the decision of the hearing court to maintain custody of the children in Appellee subject to the previously specified visitation rights of Appellant.

McEWEN, J., concurred in the result.

      . Although an agreement between parties as to custody is not binding upon the court, Commonwealth ex rel. Veihdeffer v. Veihdeffer, 235 Pa.Super.Ct. 447, 344 A.2d 613 (1975), where the parties’ agreement is incorporated into a court order, the order binds the parties and governs further court action in the same manner as any other custody order issued by a court. Commonwealth ex rel. Ackerman v. Ackerman, 34 D.&C.2d 111 (1964), aff’d, 204 Pa.Super.Ct. 403, 205 A.2d 49 (1964), allocatur refused, Feb. 15, 1965 (involved unilaterally requested modification of the parties’ prior stipulation which had been approved by the court); Commonwealth ex rel. Hickey v. Hickey, 216 Pa.Super.Ct. 332, 264 A.2d 420 (1970), allocatur refused, May 25, 1970; Pa.R.C.P. 1915.7 and Pa.R.C.P. 1915.9 and the attendant explanatory comments of the Civil Procedural Rules Committee (to be effective July 1, 1982).

      . “ ‘To permit a party to relitigate a subject of relative fitness of parents to have custody of children by an inquiry into the same or other facts existing at the time of or prior to the former decree would lay a foundation for interminable and vexatious litigation Commonwealth ex rel. O’Hey v. McCurdy, 199 Pa.Super.Ct. 22, 24, 184 A.2d 290, 291 (1962) (quoting Commonwealth ex rel. Crawford v. Crawford, 170 Pa.Super.Ct. 151, 154, 84 A.2d 237, 238 (1951)); Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa.Super.Ct. 294, 418 A.2d 729 (1980), aff’d on other grounds, 492 Pa. 183, 423 A.2d 333 (1981).

      . At the beginning of his opinion the hearing judge stated that the “main issue” before him was whether Appellant “met his burden of proving a substantial change in circumstances since the Court’s order of June 9, 1980, that would justify modifying that order to the extent of taking custody from the natural mother of the children and granting custody to” Appellant.


author: POPOVICH, Judge: CIRILLO, Judge,

text:
    446 A.2d 1327
    COMMONWEALTH of Pennsylvania v. Earl WORTHY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1982.
    Filed June 18, 1982.

      Gerald Thomas Gervasi, Merion, for appellant.
    Ann Carol Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

This appeal is concerned solely with the issue of whether appointed counsel should be permitted to withdraw from the case. We conclude that counsel has not satisfied the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), and, therefore, we deny counsel’s request to withdraw.

In his brief to us, counsel for appellant argues that “Earl Worthy’s Appeal has no merit[] either in fact or law, and his rights have not been violated, neither in his initial Trial and Appeal stage, nor in the subsequent Post Conviction Hearing presided over by Honorable Judge Edward J. Blake.” (Emphasis added) (Appellant’s Brief at 2) At the conclusion of the brief, counsel asks this Court to allow him to withdraw as court-appointed appellate counsel.

As the courts of this Commonwealth have stated in the past, before appointed counsel may withdraw from an appeal, he must, after a thorough examination of the record and his determination that the appeal is wholly frivolous, 1) request permission of the court to withdraw; 2) accompany his request with a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of such brief to the indigent client in time to allow him to present the appeal in propria persona or request appointment of new counsel. Anders v. California, supra, 386 U.S. at 744, 87 S.Ct. at 1400; Commonwealth v. Baker, supra, 429 Pa. at 214, 239 A.2d at 203.

Instantly, we find that counsel requesting withdrawal failed to satisfy the third Anders-Baker requirement—“indeed the most important,” Commonwealth v. Baker, supra, 429 Pa. at 214, 239 A.2d at 203—notification of his client. Counsel’s brief merely contains a certification that copies of his “Petition to Withdraw as Counsel together with accompanying Briefs” were served on the appellant. However, here the certification does not say either that counsel informed his client of his right to proceed in propria persona or to request appointment of new counsel, or that he informed him of these rights in time for him to exercise them. Thus, counsel did not comply with the notice requirement. Commonwealth v. Walker, 259 Pa.Super. 260, 393 A.2d 817 (1978).

Once appellate counsel has met all of the requirements attendant to his request to withdraw, “[a]t that point it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous.” (Emphasis added) Commonwealth v. McClendon, 495 Pa. 467, 471, 434 A.2d 1185, 1187 (1981). To do otherwise in the instant case, given the facts, would not only be premature, but would be in derogation of the mandate in Anders. This we will not do. Thus, since counsel has failed to comply with the constitutional requirements for withdrawal from this case, the petition to withdraw is denied. See Commonwealth v. Dabrowski, 296 Pa.Super. 515, 442 A.2d 1170 (1982). Counsel is directed to file an amended request for leave to withdraw that meets in all respects the requirements of notice to the appellant. See Commonwealth v. Scott, 259 Pa.Super. 254, 393 A.2d 813 (1978); Commonwealth v. Liska, 252 Pa.Super. 103, 380 A.2d 1303 (1977). Counsel is to comply with this order within thirty (30) days or risk sanctions.

Petition to withdraw is denied.

CXRILLO, J., files concurring opinion.

CIRILLO, Judge,

concurring:

While I concur in the result reached by the majority, I do not subscribe to both of the reasons set forth to achieve the result.

I fully agree that counsel for the appellant should not be permitted to withdraw from this case because of counsel’s failure to timely inform the appellant of his right either to proceed in propria persona or to request appointment of new counsel. However, I do not adopt the position that court-appointed counsel should be bound to file and brief an appeal which counsel believes is totally without merit.

In 1968, our Supreme Court, in the case of Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201, held that before counsel may withdraw from the case he must file a brief referring to anything in the record “that might arguably support the appeal.” See also, Commonwealth v. Perry, 464 Pa. 272, 346 A.2d 554 (1975).

However, in the 1981 case of Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185, in an Opinion by Justice Nix, the Supreme Court stated the following:

The dilemma created by the Perry reasoning becomes apparent when we consider the definition of the term “wholly frivolous” adopted by this jurisdiction. Commonwealth v. Greer, (citations omitted). If the Greer definition of “wholly frivolous” means that there are no points present that “might arguably support an appeal” counsel is saddled with an impossible burden, if he is nevertheless required to file a brief containing arguments that are nonexistént. If on the other hand, there are claims of arguable merit, even though counsel may not have any confidence in them, under Greer the appeal is not “wholly frivolous” and counsel is not entitled to seek leave to withdraw. Commonwealth v. Greer. Thus following the Perry rationale to its logical conclusion the right of counsel to seek leave to withdraw would be illusory. We do not believe that such a result was ever intended by the United States Supreme Court.

495 Pa. 472-73, 434 A.2d at 1188.

Where an accused is entitled to a counselled appellate review, that right should not be denied or diminished solely because of indigency. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, Anders does not require that counsel be forced to pursue a wholly frivolous appeal just because his client is indigent. Commonwealth v. McClendon, supra, 495 Pa. 472-73, 434 A.2d at 1188. If a skilled trial lawyer, in his considered judgment, holds the good faith conviction that an appeal is frivolous or that the filing of an appeal would offend his conscience, he can do no more. The courts should not then force him to do that which privately-hired defense counsel would not be required to do, simply because the lawyer has been appointed by the court. It should not be the policy of the judicial system to encourage groundless appeals which merely waste the courts’ time.

The basis for caution in permitting court-appointed counsel to withdraw from a case is the need to assure that the appellate rights of a defendant are not waived without his knowledge. As long as withdrawing counsel informs the defendant of his appellate rights, including the right to request new court-appointed counsel, the actual filing and briefing of an appeal is unnecessary to preserve the defendant’s rights.

      . We note that our Supreme Court has stated on this point that: “ ‘lack of merit in an appeal is not the legal equivalent of frivolity.’ Commonwealth v. Greer, 455 Pa. 106, 108, 314 A.2d 513, 514 (1974).

        Anders ‘appears to rest narrowly on the distinction between complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court.’ ” (Citation omitted) Commonwealth v. McClendon, 495 Pa. 467, 472, 434 A.2d 1185, 1187 (1981).

      . For edification purposes, we note that the second prong of this tripartite test has been interpreted to mean that where counsel has in good faith satisfied his obligation to fully study the record and found the appeal to be wholly frivolous, he need not do more. In accordance therewith, our Supreme Court has “rejected] the view that [counsel’s] explanation of why there is no basis for an appeal should be interpreted as reflecting counsel’s lack of concern in the client’s cause. Nor can that fact be assigned to a reason for concluding that the client did not receive this constitutionally protected right of representation.” Commonwealth v. McClendon, supra, 495 Pa. at 474, 434 A.2d at 1188. Accord Commonwealth v. Reese, 293 Pa.Super. 44, 437 A.2d 982 (1981).