author: WIEAND, Judge.

text:
    660 A2d 90
    COMMONWEALTH of Pennsylvania, Appellant, v. Nancy M. FEATHERS, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1995.
    Filed May 31, 1995.

      John M. Daley, Asst. Dist. Atty., Hollidaysburg, for Commonwealth, appellant.
    John D. Sisto, Altoona, for appellee.
    Before ROWLEY, P.J., and CAVANAUGH, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, FORD ELLIOTT and SAYLOR, JJ.
   WIEAND, Judge.

The principal issue in this appeal is whether a post-verdict judgment of acquittal, entered by a trial court pursuant to Pa.R.Crim.P. 1124(a)(4), is appealable by the Commonwealth. Because we have concluded that a Commonwealth appeal is proper, we will also review the evidence to determine whether it was sufficient to sustain the jury’s finding that Nancy M. Feathers, appellee, was guilty of operating a motor vehicle while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(1).

Nancy Feathers was tried by jury and was found guilty on January 21, 1994. After the verdict had been rendered and the jury discharged, Feathers moved orally for the entry of a judgment of acquittal by the trial court on grounds that the evidence had been insufficient to sustain the verdict. When this motion was granted by the trial court, the Commonwealth appealed.

By amendment dated March 22, 1993, and effective as to cases in which a determination of guilt occurs after January 1, 1994, Pa.R.Crim.P. 1124 permits a defendant in a criminal case to challenge the sufficiency of the evidence in one or more of the ways there set forth. The Rule provides:

Rule 1124. Challenges to Sufficiency of Evidence
(a) A defendant may challenge the sufficiency of the evidence to sustain a conviction of one or more of the offenses charged in one or more of the following ways:
(1) a motion for judgment of acquittal at the close of the Commonwealth’s case-in-chief;
(2) a motion for judgment of acquittal at the close of all the evidence;
(3) a motion for judgment of acquittal filed within 10 days after the jury has been discharged without agreeing upon a verdict;
(4) a motion for judgment of acquittal made orally immediately after verdict;
(5) a motion for judgment of acquittal made orally before sentencing pursuant to Rule 1405.B;
(6) a motion for judgment of acquittal made after sentence is imposed pursuant to Rule 1410.B; or
(7) a challenge to the sufficiency of the evidence made on appeal.
(b) A motion for judgment of acquittal shall not constitute an admission of any facts or inferences except for the purpose of deciding the motion. If the motion is made at the close of the Commonwealth’s evidence and is not granted, the defendant may present evidence without having reserved the right to do so, and the case shall otherwise proceed as if the motion had not been made.
(c) If a defendant moves for judgment of acquittal at the close of all the evidence, the court may reserve decision until after the jury returns a guilty verdict or after the jury is discharged without agreeing upon a verdict.

This Rule eliminated the use of the terms “demurrer” and “motion in arrest of judgment” and substituted a “motion for judgment of acquittal.” The Comment to the Rule states that the purpose of the amendment is to standardize the terminology used for challenges to the sufficiency of the evidence at all stages of the proceeding, consistently with the practice in a majority of the states, as well as under the Federal Rules of Criminal Procedure. The Comment cautions, however, that the amendment was not intended to change substantively the law in Pennsylvania regarding a challenge to the sufficiency of the evidence in a criminal case.

The United States Supreme Court has declared that “[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘[a] verdict of acquittal ... could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.’” United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642, 651 (1977), quoting United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300, 303 (1896). See also: Commonwealth v. Tillman, 501 Pa. 395, 461 A.2d 795 (1983); Commonwealth v. Maurizio, 496 Pa. 584, 437 A.2d 1195 (1981). “The fundamental nature of this rule is manifested by its explicit extension to situations where an acquittal is ‘based upon an egregiously erroneous foundation.’ ” Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43, 54 (1978), quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629, 631 (1962). See also: Borough of West Chester v. Lal, 493 Pa. 387, 392, 426 A.2d 603, 605 (1981); Commonwealth v. Walczak, 440 Pa.Super. 339, 440 Pa.Super. 347, 655 A.2d 592, 596 (1995). Under this principle, “[a] judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not' be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.” United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65, 74 (1978) (emphasis added) (footnote omitted). See: Commonwealth v. Trader, 354 Pa.Super. 583, 512 A.2d 693 (1986). However, “where a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended.” United States v. Martin Linen Supply Co., supra, 430 U.S. at 569-570, 97 S.Ct. at 1354, 51 L.Ed.2d at 650. See also: United States v. DiFrancesco, 449 U.S. 117, 132, 101 S.Ct. 426, 434, 66 L.Ed.2d 328, 342 (1980). The Supreme Court has cautioned, “the language of cases in which we have held that there can be no appeal from, or further prosecution after, an ‘acquittal’ cannot be divorced from the procedural context in which the action so characterized was taken. The word itself has no talismanic quality for purposes of the Double Jeopardy Clause.” Serfass v. United States, 420 U.S. 377, 392, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265, 276 (1975) (citations omitted).

In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), the Supreme Court held “that when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause.” Id. at 352-353, 95 S.Ct. at 1026, 43 L.Ed.2d at 247. The Court said:

[WJhere there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended. In various situations where appellate review would not subject the defendant to a second trial, this Court has held that an order favoring the defendant could constitutionally be appealed by the Government. Since the 1907 Criminal Appeals Act, for example, the Government has been permitted without serious constitutional challenge to appeal from orders arresting judgment after a verdict has been entered against the defendant. See, e.g., United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955); United States v. Green, 350 U.S. 415, 76 S.Ct. 522, 100 L.Ed. 494 (1956); Pratt v. United States, 70 App.D.C. 7, 11, 102 F.2d 275, 279 (1939). Since reversal on appeal would merely reinstate the jury’s verdict, review of such an order does not offend the policy against multiple prosecution.

Id. at 344-345, 95 S.Ct. at 1022, 43 L.Ed.2d at 242 (footnote omitted). And in United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), the Court observed by way of dictum as follows:

When a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the Government providing that a retrial would not be required in the event the Government is successful in its appeal. United States v. Wilson, 420 U.S., at 344-345, 352-353, 95 S.Ct., at 1022-1023, 1026-1027, 43 L.Ed.2d, at 242, 246-247. When this principle is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. In that situation a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by the entry of a judgment on the verdict. To be sure, the defendant would prefer that the Government not be permitted to appeal or that the judgment of conviction not be entered, but this interest of the defendant is not one that the Double Jeopardy Clause was designed to protect.

Id. at 365, 95 S.Ct. at 1011, 43 L.Ed.2d at 256-257. See also: Arizona v. Rumsey, 467 U.S. 203, 211-212, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164, 171-172 (1984); United States v. Scott, supra, 437 U.S. at 91 n. 7, 98 S.Ct. at 2194 n. 7, 57 L.Ed.2d at 74 n. 7.

All Courts of Appeal which have considered the issue have followed the Supreme Court and have held uniformly that the government may appeal from a trial court’s post-verdict order finding the evidence insufficient to sustain a jury’s verdict and entering a judgment of acquittal in favor of the defendant. In the event an appellate court finds that the jury’s verdict was supported by sufficient evidence, it may reverse the trial court’s ruling and reinstate the jury’s verdict without remanding for any further resolution of factual issues. See: United States v. Covino, 837 F.2d 65, 67-68 (2d Cir.1988); United States v. Leal, 781 F.2d 1108, 1110 (5th Cir.1986), cert. denied, 479 U.S. 831, 107 S.Ct. 116, 93 L.Ed.2d 63 (1986); United States v. Martinez, 763 F.2d 1297, 1309-1311 (11th Cir.1985); United States v. Singleton, 702 F.2d 1159, 1161-1162 (D.C.Cir. 1983); United States v. Steed, 674 F.2d 284, 285-286 (4th Cir.1982) (en banc), cert. denied, 459 U.S. 829, 103 S.Ct. 67, 74 L.Ed.2d 68 (1982); United States v. Dixon, 658 F.2d 181, 187-188 (3d Cir.1981); United States v. Blasco, 581 F.2d 681, 683-684 (7th Cir.1978), cert. denied, 439 U.S. 966, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978); United States v. Jones, 580 F.2d 219, 221-222 n. 3 (6th Cir.1978); United States v. Calloway, 562 F.2d 615, 616-617 (10th Cir.1977); United States v. Rojas, 554 F.2d 938, 941-942 (9th Cir.1977); United States v. Donahue, 539 F.2d 1131, 1133-1134 (8th Cir.1976).

The law in Pennsylvania is consistent with the federal decisions. In Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983), the Pennsylvania Supreme Court observed:

A factfinder’s verdict of acquittal is, of course, insulated from further review. Commonwealth v. Maurizio, 496 Pa. 584, 437 A.2d 1195 (1981); Commonwealth v. Ray, supra [448 Pa. 307, 292 A.2d 410 (1972) ]; Commonwealth v. Rios, 447 Pa. 397, 289 A.2d 721 (1972); Commonwealth v. Haines, supra [410 Pa. 601, 190 A.2d 118 (1963) ]. However, where a court finds as a matter of law the evidence is not sufficient to support the verdict, that, like any other ruling on a question of law, is subject to review, and an order by the reviewing court reversing that conclusion and reinstating the jury verdict does not offend the proscription against double jeopardy. See United States v. Morrison, 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1 (1976); United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); United States v. Dixon, 658 F.2d 181 (3d Cir.1981); Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982).

Id. at 519-520, 462 A.2d at 621. “[W]here a trial court has found post-verdict that the evidence was insufficient as a matter of law to support the verdict, that determination is subject to appellate review, for an order by an appellate court reversing such a conclusion and reinstating the verdict does not require a second trial.” Commonwealth v. Smalis, 331 Pa.Super. 307, 314, 480 A.2d 1046, 1050 (1984) (en banc), rev’d, Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985), rev’d, Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), order of Superior Court reinstated, Commonwealth v. Smalis, 511 Pa. 229, 512 A.2d 634 (1986). See: Commonwealth v. Coleman, 367 Pa.Super. 108, 119, 532 A.2d 477, 482 (1987) (for double jeopardy purposes crucial distinction must be made between pre-conviction and post-conviction determinations of insufficiency of the evidence). See also: Commonwealth, Department of Transportation v. Springbrook Transport, Inc., 390 Pa.Super. 308, 314-316 & n. 4, 568 A.2d 667, 670-671 & n. 4 (1990); Commonwealth v. Fitzhugh, 360 Pa.Super. 217, 224-226, 520 A.2d 424, 427-428 (1987).

In Commonwealth v. Dewald, 426 Pa.Super. 445, 627 A.2d 759 (1993), a three judge panel of the Superior Court held by a vote of two to one that a trial court’s post-verdict entry of a judgment of acquittal because of insufficient evidence was not appealable by the Commonwealth. We have reviewed that decision carefully but conclude that it was incorrectly decided. It is, therefore, expressly overruled.

Because the appeal by the Commonwealth in this case is properly before the Court, we will proceed to a review of the trial court’s determination that the evidence was insufficient to sustain the jury’s finding of guilt.

In passing upon a post-verdict motion for judgment of acquittal, a trial court is limited to determining the presence or absence “of that quantum of evidence necessary to establish the elements of the crime.” Commonwealth v. Bigelow, 416 Pa.Super. 449, 452, 611 A.2d 301, 303 (1992). See also: Commonwealth v. Meadows, 471 Pa. 201, 205-206, 369 A.2d 1266, 1268 (1977); Commonwealth v. Yapsuga, 369 Pa.Super. 336, 339, 535 A.2d 187, 188 (1987). To determine the legal sufficiency of evidence supporting a jury’s verdict of guilty, this Court must:

view the evidence in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the evidence is sufficient to permit a jury to determine that each and every element of the crimes charged has been established beyond a reasonable doubt. See: Commonwealth v. Aulisio, 514 Pa. 84, 91, 522 A.2d 1075, 1079 (1987). See also: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). It is the function of the jury to pass upon the credibility of the witnesses and to determine the weight to be accorded the evidence produced. The jury is free to believe all, part or none of the evidence introduced at trial. See: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983). See also: Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975); Commonwealth v. Verdekal, 351 Pa.Super. 412, 419-420, 506 A.2d 415, 419 (1986). The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943). See also: Commonwealth v. Kravitz, 400 Pa. 198, 215, 161 A.2d 861, 869 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).

Commonwealth v. Shoup, 423 Pa.Super. 12, 16-17, 620 A.2d 15, 16-17 (1993).

In order to establish appellee’s guilt of violating 75 Pa.C.S. § 3731(a)(1), the Commonwealth was required “to prove: (1) that [s]he was operating a motor vehicle, (2) while under the influence of alcohol to a degree which rendered [her] incapable of safe driving.” Commonwealth v. Griscavage, 512 Pa. 540, 544, 517 A.2d 1256, 1258 (1986). See also: Commonwealth v. Weis, 416 Pa.Super. 628, 635, 611 A.2d 1218, 1225 (1992). A police officer who has perceived a defendant’s appearance and acts, the Superior Court has held, is competent to express an “opinion as to the defendant’s state of intoxication and to [her] ability to drive a vehicle safely.” Commonwealth v. Neiswonger, 338 Pa.Super. 625, 629, 488 A.2d 68, 70 (1985) (footnote omitted). Moreover, “evidence that the driver was not in control of [her]self, such as failing to pass a field sobriety test, could establish the driver was under the influence of alcohol to a degree which rendered [her] incapable of safe driving, notwithstanding the absence of evidence of erratic or unsafe driving.” Commonwealth v. Kowalek, 436 Pa.Super. 361, 369, 647 A.2d 948, 952 (1994).

Here, the evidence, when viewed in a light most favorable to the Commonwealth, was clearly sufficient to sustain the jury’s finding that appellee had driven a vehicle while under the influence of alcohol to a degree which rendered her incapable of safe driving.

On June 9,1993, at or about 12:45 a.m., Chief Paul Phaler of the Bellwood Borough Police Department was on his way home from work when he observed a vehicle which had been driven into a construction zone where it had become “hung up.” Its front tires were hanging over the edge of a newly constructed roadway and were suspended approximately six to ten inches off the ground. Behind the wheel was Nancy Feathers, who was revving the engine and trying to move her car off the newly surfaced roadway. Because Phaler, who was in uniform, was outside his primary jurisdiction, he called the state police and notified them of the accident. When he thereafter approached the vehicle, he observed Feathers get out of the car, holding onto the door for support. She appeared to be upset and was talking in a rambling manner about the death of her husband. When Phaler attempted to speak to her, he observed that she was crying, that her eyes were glassy and her speech slurred, and that she had on her breath a strong odor of alcohol: She said that she had had a couple of drinks with friends. Phaler told her that the state police had been notified and suggested that she wait in her car until they arrived. Thereafter, Feathers attempted several times to extricate her vehicle from the new roadway without success. After each unsuccessful attempt, she would exit the vehicle and walk around it in a staggering manner, holding on to the vehicle for support. Phaler testified without objection that in his opinion the defendant had been under the influence of alcohol to a degree which rendered her incapable of safe driving.

State Trooper Robert Clark testified that when he and Trooper Mark Dillon arrived at the construction site, the Feathers vehicle was suspended on the newly constructed roadway. When he asked her for her driver’s license, registration and insurance card, the defendant was mumbling about the death of her husband and about a desire to go home. He said that there had been a strong odor of alcohol on her breath and about her person and that she had experienced difficulty in producing her license and insurance card. When she got out of her car, she was unstable on her feet, was swaying and had to lean against the vehicle for support. When asked where she was coming from, she replied that she had been at Chaser’s Lounge in Tyrone, where she had had a couple of beers. Her eyes were red and bloodshot, but she did not appear to be injured. Trooper Clark requested Feathers to perform several sobriety tests, including a heel to toe test and standing on one leg, which she failed “very badly.” Appellee was then placed under arrest and taken to Altoona Hospital, where, after being advised of her rights, she refused to consent to the withdrawal of blood for testing. Trooper Clark and also Trooper Dillon testified that in their opinions the defendant was intoxicated.

Appellee testified on her own behalf and explained that she had worked a double shift, had taken a muscle relaxant for leg pains, had been concerned about impending breast surgery and had gone to Chaser’s Lounge to talk with her employer. She had been there for about two hours, she said, during which she may have drunk four beers. She said the markings at the construction zone had been changed during the day and that she had become confused during her late night drive home. She attributed her inability to perform the field sobriety tests and her refusal to submit to a blood test to the fact that she was upset.

In setting aside the jury’s verdict, the trial court concluded that the Commonwealth’s evidence was speculative and insufficient to establish guilt beyond a reasonable doubt. The court also accepted appellee’s explanation. Although the trial court suggested various arguments in support of its conclusions, it is eminently clear that the trial court engaged in an impermissible re-evaluation of the credibility of the witnesses and the weight of the evidence. These determinations were for the jury and not for the court. When the evidence is viewed in a light most favorable to the Commonwealth, in whose favor the jury returned a verdict, there can be no doubt that it was sufficient, if believed, to support the verdict. When the trial court nevertheless substituted its judgment for that of the jury, it erred.

The judgment of acquittal entered by the trial court is reversed, and the verdict of the jury is reinstated. The case is remanded to the trial court for the imposition of sentence. Jurisdiction is not retained meanwhile.

      . The rule, as it previously existed, was as follows:
      Rule 1124. Challenges to Sufficiency of Evidence
      (a) A defendant may challenge the sufficiency of the evidence to sustain a conviction of one or more of the offenses charged by a:
      (1) demurrer to the evidence presented by the Commonwealth at the close of the Commonwealth’s case-in-chief;
      (2) motion for judgment of acquittal at the close of all the evidence;
      (3) motion for judgment of acquittal filed within ten (10) days after the jury has been discharged without agreeing upon a verdict; or
      (4) motion in arrest of judgment filed within ten (10) days after a finding of guilt.

        (b) A demurrer to the evidence shall not constitute an admission of any facts or inferences except for the purpose of deciding the demurrer. If the demurrer is not sustained, the defendant may present evidence and the case shall proceed.
      (c) If a defendant moves for judgment of acquittal at the close of all the evidence, the court may reserve decision until after the jury returns a guilty verdict or after the jury is discharged without agreeing upon a verdict.
      (d) The defendant may file a motion under subparagraph (a)(3) or (a)(4) even though the defendant did not move for judgment of acquittal at the close of all the evidence. The denial of a motion for judgment of acquittal at the close of all the evidence does not preclude later consideration of a motion for judgment of acquittal after discharge of the jury or a motion in arrest of judgment.
      Pa.R.Crim.P. 1124 (former version).

      . Federal Rule of Criminal Procedure 29 provides:
      Rule 29. Motion for judgment of acquittal
      (a) Motion before submission to jury. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant’s motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right.
      (b) Reservation of decision on motion. If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.
      (c) Motion after discharge of jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period. If a verdict of guilty is returned the court rftay on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.
      (d) Same: conditional ruling on grant of motion. If a motion for judgment of acquittal after verdict of guilty under this Rule is granted, the court shall also determine whether any motion for a new trial should be granted if the judgment of acquittal is thereafter vacated or reversed, specifying the grounds for such determination. If the motion for a new trial is granted conditionally, the order thereon does not affect the finality of the judgment. If the motion for a new trial has been granted conditionally and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. If such motion has been denied conditionally, the appellee on appeal may assert error in that denial, and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
      Fed.R.Crim.P. 29.

      . The decision in United States v. Jenkins was overruled on other grounds in United States v. Scott, supra.

      . Although Dewald was decided under the former version of Rule 1124, this difference is of no significance.

      . Appellee's first husband, a tow truck operator, had been killed in a work related accident in August, 1977. She had remarried approximately eight months before the incident upon which the drunk driving charge was based.


source: Caselaw Access Project

author: CIRILLO, Judge.

license: Public Domain

text:
    660 A2d 97
    Ronald W. McCLELLAN and Harold Shotel, Co-Executors of the Estate of Marilyn M. McClellan, Deceased, Appellants, v. HEALTH MAINTENANCE ORGANIZATION a/k/a HMO of Pa. Ronald W. McCLELLAN and Harold Shotel, Co-Executors of the Estate of Marilyn M. McClellan, Deceased, Appellants, v. Joseph A. HEMPSEY, D.O.
    Superior Court of Pennsylvania.
    Argued April 6, 1995.
    Filed June 2, 1995.

      Joseph L. Messa, Jr., Philadelphia, for appellants.
    Brian D. Rosenthal, Philadelphia, for appellants.
    Kenwyn M. Dougherty, Philadelphia, for Health Maintenance, appellee.
    Before CIRILLO, JOHNSON and SAYLOR, JJ.
   CIRILLO, Judge.

Ronald W. McClellan and Harold Shotel, co-executors of the estate of Marilyn M. McClellan (“Appellants”), appeal from the order entered in the Court of .Common Pleas of Delaware County granting in part and denying in part Appellants’ motion to strike Health Maintenance Organization of PA a/k/a HMO PA Foundation and United States Healthcare of PA, Inc. d/b/a HMO PA. (hereinafter collectively referred to as “HMO PA”), and Joseph A. Hempsey, D.O.’s objections to request for production of documents. For the reasons stated below, we reverse and remand this case for proceedings consistent with this opinion.

In 1987, Appellants commenced a medical malpractice action against Dr. Hempsey. In 1989, Appellants commenced a separate action against HMO PA, averring, inter alia, claims of ostensible agency and corporate liability for failing to retain competent physicians and to continue to screen and review those physicians to assure their competence.

Specifically, Appellants complained that Dr. Hempsey, a physician chosen from a HMO provided list, failed to test a mole he removed from the decedent, Marilyn McClellan, who later died from malignant melanoma. Appellants alleged that the negligence of HMO PA in selecting and retaining Dr. Hempsey contributed to the decedent’s death. In addition to their corporate negligence theory, Appellants also alleged that HMO PA was liable for breach of contract and misrepresentation based upon the express representations made by HMO PA concerning the competency of its primary care physicians and the availability to subscribers of consultation and treatment by medical specialists whenever warranted through primary care referrals. The two actions were consolidated.

HMO PA filed preliminary objections in the nature of a demurrer to Appellants’ complaint, challenging Appellants’ theories of recovery. The trial court sustained the preliminary objections, and the Appellants appealed to this court. On appeal, this court reversed the trial court’s ruling, McClellan v. Health Maintenance Organization of PA, 413 Pa.Super. 128, 604 A.2d 1053 (1992) (“McClellan I”), and reinstated Appellants’ complaint. We remanded the case for trial, but limited the scope of the corporate negligence doctrine as it applied to HMO PA by imposing only two of the four duties outlined in Thompson v. Nason Hosp., 527 Pa. 330, 591 A.2d 703 (1991). McClellan I, 413 Pa.Super. at 137-43, 604 A.2d at 1058-60.

In Thompson, supra, our Supreme Court ruled that because “the corporate hospital of today has assumed the role of a comprehensive health center,” it may be subject to liability under the theories of respondeat superior, ostensible agency, and/or corporate negligence. Thompson, 527 Pa. at 338-40, 591 A.2d at 706-707. With respect to the corporate negligence theory, the Court opined as follows:

Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes directly to a patient.
The hospital’s duties have been classified into four general areas: (1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.

Id. (citations omitted).

Comparing and contrasting hospitals with HMOs, particularly Independent Practice Association HMOs (“IPA model HMOs”), this court, in McClellan I, supra, noted that, “While HMO PA could be viewed as having ‘assumed the role of a comprehensive health center,’ only two of the four duties defined by the Court in Thompson could be imposed.upon a modified IPA model HMO since such an HMO has no facilities or equipment and thus cannot ‘oversee ... patient care [within its walls]’.” McClellan I, 413 Pa.Super. at 140, 604 A.2d at 1059 (citing Thompson, 527 Pa. at 339-40, 591 A.2d at 707). We did find it reasonable, however, to require that an IPA model HMO “select and retain only competent physicians” and “formulate, adopt and enforce adequate rules and policies to ensure quality care for [its subscribers].” Id.

Upon remand, Appellants filed three requests for production of documents. On June 29, 1993, the Honorable Kenneth A. Clouse entered an order requiring HMO PA to produce the requested documents. HMO PA objected to Appellants’ requests, claiming the privilege granted by the Pennsylvania Peer Review Protection Act, 63 P.S. § 425.1 et seq. (hereinafter referred to as “PRPA”). In response, Appellants filed a motion to strike objections and to compel discreet responses to the requests for production of documents.

On October 12, 1993, Judge Clouse entered an order sustaining HMO PA’s objections to document requests numbers five through eight of Appellants’ original request for production of documents, and document request number three of Appellants’ first supplemental request for production of documents on the grounds that those documents are protected by the PRPA. Appellants filed a motion to reconsider the October 12th order, which was denied. Thereafter, Appellants filed a second motion for reconsideration seeking reconsideration of the previous order or, in the alternative, seeking the trial court to certify the issue for appeal. 42 Pa.C.S.A. § 702(b). The trial court certified the issue for appeal, and this court granted Appellants’ petition for permission to appeal. Pa.R.A.P. 301, 1301-23. Appellants present two issues for this court’s consideration:

(1) Does the PRPA preclude discovery of peer review material in an action against an Independent Practice Association Health Maintenance Organization (“IPA model HMO”)?
(2) Even if an IPA model HMO is considered a professional health care provider, is the peer review material nonetheless discoverable because Appellants would themselves be without evidence to prove their corporate negligence claim against HMO PA?

The PRPA, 63 P.S. § 425.1 et seq., was promulgated to ensure the protection of patients and the general public by maintaining high professional standards in the practice of medicine. Cooper v. Delaware Valley Medical Center, 428 Pa.Super. 1, 14, 630 A.2d 1, 7 (1993), alloc, granted, 536 Pa. 642, 639 A.2d 28 (1994). In order to foster the free and frank discussions by review organizations, however, the legislature built into the PRPA particular immunity and confidentiality provisions. See 63 P.S. §§ 425.3, 425.4. See also Sanderson v. Bryan, 361 Pa.Super. 491, 522 A.2d 1138 (1987). The official comments to section 425.1 of the PRPA provides that the PRPA is “[a]n Act providing for the increased use of peer review groups by giving protection to individuals and data who report to any review group.” 63 P.S. § 425.1, Historical and Statutory Notes.

Section 425.4 contains the PRPA’s confidentiality provision. It provides, in pertinent part:

The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery ... in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee----

63 P.S. § 425.4 (emphasis added). With respect to this appeal, we must ascertain whether the trial court correctly found that HMO PA, as an IPA model HMO, is entitled to the protections of the PRPA. More specifically, we must determine whether HMO PA is a “professional health care provider” as defined by the statute.

When reviewing a statute, we are guided by the principles set out in the Statutory Construction Act, 1 Pa. C.S.A. §§ 1501-1991. The object of all statutory interpretation is to ascertain and effectuate the intention of' the General Assembly. 1 Pa.C.S.A. § 1921(a). Whenever possible, we must interpret a statute according to the plain meaning of its language. In that light, the rules of statutory construction provide, in part, that “words and phrases shall be construed according to the rules of grammar and according to their common and approved usage.” 1 Pa.C.S.A. § 1903; Commonwealth v. Bell, 512 Pa. 334, 339, 516 A.2d 1172, 1175 (1986); Fireman’s Fund Ins. Co. v. Nationwide Mut. Ins. Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983). When the words of the statute are clear and free from all ambiguity, we will not disregard the letter of the law under the pretext of pursuing its spirit. 1 Pa.C.S.A. § 1921(b).

A “professional health care provider” means “individuals or organizations who are approved, licensed, or otherwise regulated to practice or operate in the health care field ... including, but not limited to, the following individuals or organizations:”

(I) A physician.
‡ ‡
(II) A corporation or other organization operating a hospital, a nursing or convalescent home or other health care facility.

63 P.S. § 425.2 (emphasis added). An HMO is not expressly included in this definition of a professional health care provider. Accordingly, we must delve deeper to determine whether an HMO, specifically an IPA model HMO, is an entity which may be considered to be a “corporation or other organization operating a hospital ... or other health care facility.” 63 P.S. § 425.2.

In Pennsylvania, health maintenance organizations (“HMOs”) are governed by the Health Maintenance Organization Act (the “HMO Act”). Act of December 29, 1972, P.L. 1701, No. 364, § 1, as amended, 40 P.S. § 1551 et seq. The stated purpose of the HMO Act is “to permit and encourage the formation and regulation of [HMO’s] and to authorize the Secretary of Health to provide technical advice and assistance to corporations desiring to establish, operate and maintain a [HMO]....” 40 P.S. § 1552. The HMO Act defines a HMO as “an organized system which combines the delivery and financing of health care and which provides basic health services to voluntarily enrolled subscribers for a fixed prepaid fee.” 40 P.S. § 1553 (emphasis added). These “health services” may be provided either through physicians who are directly employed by the HMO, or through one or more groups of physicians. See 40 P.S. § 1554.

We recognize that organizations grouped together under the rubric of “HMOs” vary widely in terms of the degree to which they act as direct health care providers, and, conversely, the degree to which they act as traditional insurers. Generally, there are three models of HMOs: Staff; Independent Practice Associations (“IPA”); and Group models. Gregory G. Binford, Malpractice and the Prepaid Health Care Organization, 3 Whittier L.Rev. 337, 338 (1981). The models can be distinguished by examining the relationship between the HMO and its participating physicians, and the way in which the HMO finances its program. Tayebe Shah-Mirany, Malpractice Liability of Health Maintenance Organizations: Evolving Contract and Tort Theories, 39(3) Med.Trial Tech.Q. 357, 358-59 (1993).

The Pennsylvania Code defines the various types of HMOs. A Staff model HMO is an HMO “that delivers services through its own physicians who are paid employees (staff) of the HMO.” 28 Pa.Code § 9.2. The subscribers of these Staff model HMO plans, therefore, receive their health care from a group of doctors working together for a salary at the plan’s facility and at hospitals chosen by the plan. In short, a Staff model HMO either owns or leases its own facilities, in which it operates and oversees the administration of primary care services. In addition, the Staff model HMO employs its own salaried physicians and other salaried health care providers.

A Group model HMO involves contractual relationships between the HMO and physician groups. These physician groups or providers may treat the plan subscribers exclusively, or treat plan subscribers in addition to fee-for-service patients. Since each physician group or provider is selected by the HMO’s administrative body as a participant in the HMO, the plan members have a limited choice of physicians within the group. Id.

The final type of HMO is the IPA model HMO. The IPA model HMO is an HMO “that contracts for delivery of services with a partnership, corporation, or association whose major objective is to enter into contractual arrangements with health professionals for the delivery of such health services.” 28 Pa.Code § 9.2. In this model, therefore, the HMO contracts with an IPA, a pre-existing partnership or corporation of physicians, who then provides the health care for participating members. The typical arrangement in the IPA model HMO is that its physicians usually work in their own offices, use their own equipment, and keep their own records. The HMO pays the IPA a specified amount per subscriber, called a “capitation.” The IPA then pays the physician on a fee-for-service basis.

It is not disputed that HMO PA is an IPA model HMO. In fact, HMO PA’s Group Master Contract provides that it is an IPA model HMO and defines an “IPA” as “a Pennsylvania Corporation, which has entered into a written agreement for the provision of those health care benefits and services to be rendered to Members hereunder by health professionals other than those under contract directly to HMO[ ]PA.” The Group Master Contract also defines who and what is considered a health care provider. A “[pjrovider” means a [pjhysician, [hjospital, [sjkilled [njursing [facility, or [h]ome [hjealth [ajgency.” Nowhere in the Group Master Contract does HMO PA designate itself or hold itself out to be a “provider” of professional health care services.

It is this court’s opinion that entities such as Staff or Group model HMO’s may be considered “health care providers” under the PRPA in an appropriate case. Not so clear, however, is whether IPA model HMOs, like HMO PA, that do not operate their own facilities, but merely act as insurers or quasi-insurers, should be covered by the PRPA.

Conceding that the purpose of the PRPA is to increase the quality of public health care by providing immunity to quality assurance review proceedings, the General Assembly has achieved this purpose only to the extent it provides immunity to individuals or groups enumerated in the statute. This court will not read into the PRPA medical institutions or groups — Staff, Group, or IPA model HMOs, etc. — that are not specifically identified by the legislature. As such, we will not construe the statute to extend protection or confidentiality to HMO PA in this case. If HMO PA desires coverage by the PRPA, it should direct its arguments to the General Assembly.

Order reversed and case remanded. Jurisdiction relinquished.

      . In McClellan I, citing to Section 323 of the Restatement (Second) of Torts, we found that in order to state a cause of action against an IPA model HMO, the complaint must contain factual allegations sufficient to establish the legal requirement that the HMO has undertaken:
      (1) To render services to the plaintiff subscriber;
      (2) which the HMO should recognize as necessary for the protection of its subscriber;
      (3) that the HMO failed to exercise reasonable care in selecting, retaining, and/or evaluating the plaintiff's primary care physician; and
      (4) that as a result of the HMO’s failure to use such reasonable care, the risk of harm to the subscriber was increased.

        McClellan I, 413 Pa.Super. at 140-41, 604 A.2d at 1059.

        . Document request number five seeks "any and all documents submitted to [HMO PA] ... regarding the application of [Dr. Hempsey] ... to [HMO PA] ... for acceptance as a primary care physician or otherwise as a participant under any U.S. Health Care HMO Plan.”
      Document request number six seeks "any and all documents reviewed by any review board or other investigative body for [HMO PA] ... in their investigation of [Dr. Hempsey] ... as an applicant for acceptance as a primary care physician....”
      Document request number seven seeks "any and all reports, memos or correspondence relating to [HMO PA’s] ... investigation of [Dr. Hempsey] ... as an applicant as a primary care physician with Defendants.”
      Document request number eight seeks "any and all reports, memos, correspondence or other documents or communication relating to the care and treatment rendered by ... [Dr. Hempsey] to his HMO primary care patients which were participating members of U.S. Healthcare and HMO PA, prior to 1987.”
      Document request number three of Appellants’ supplemental document request seeks "any and all documents, writings or other communications reflecting or pertaining to inspections and/or follow-up inspections of Dr. Hempsey, his office and his practice from the date he became a U.S. Health Care Primary Care Physician to 1987.”

      . A "capitation” is an actuarially determined amount prepaid by a HMO to the primary physician for each patient who has chosen that physician to provide professional health care services. See Boyd v. Albert Einstein Medical Center, 377 Pa.Super. 609, 619, 547 A.2d 1229, 1234 (1988).

      . Because we reverse and remand this case to the trial court for further proceedings, we need not address Appellants' second issue.


author: JOHNSON, Judge.

text:
    660 A.2d 102
    COMMONWEALTH of Pennsylvania v. Robert S. KRATZER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 9, 1995.
    Filed June 7, 1995.

      Theresa Hogan, Easton, for appellant.
    John M. Morganelli, (submitted) Asst. Dist. Atty., Bethlehem, for Commonwealth, appellee.
    Before ROWLEY, P.J., and DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge.

In this appeal, we are asked to determine whether the constitutional provisions prohibiting double jeopardy prevent the imposition of consecutive sentences on remand where the original sentences were concurrent, even though the aggregate sentence is reduced on remand. Because we find no constitutional violation, we affirm.

In October 1990, Kratzer was arrested and charged with five separate offenses involving the unlawful delivery of cocaine. Three of the charges were filed in Lehigh County, and the remaining two charges were filed in Northampton County. Kratzer entered into a plea agreement in Lehigh County, whereby he agreed to plead guilty to three charges of cocaine delivery if he received a sentence of not more than Tk to 15 years’ imprisonment. Accordingly, Kratzer pleaded guilty to three counts of delivery of cocaine on August 8, 1991. Sentencing was scheduled for September 3, 1991.

On August 16, 1991, Kratzer entered into a similar plea agreement in Northampton County. At Kratzer’s negotiated guilty plea hearing, the Assistant District Attorney explained to the Northampton County trial court:

[Kratzer’s] plea in Lehigh County was with the understanding that ... he was looking at a cap of 7 and a half to 15 years, no more than that.
He’s scheduled for sentencing on September 3rd in Le-high County ... and I would present a proposed negotiated plea ... that [Kratzer] will receive, as a result of whatever sentence he gets in Lehigh County and whatever sentence he gets here, no more than 7 and a half to a 15-year cap.
It may well be that this court will sentence concurrent to whatever is received up there if, in fact, [he is sentenced to Tk to 15 years’ imprisonment in Lehigh County]. Of course, not knowing what he gets in Lehigh County, you couldn’t sentence now to something concurrent that hasn’t happened yet.

N.T., Negotiated Guilty Plea, August 16, 1991, at 2-3. The court approved the agreement, and Kratzer pleaded guilty to two charges of cocaine delivery in Northampton County.

In September 1991, Kratzer was sentenced to three concurrent terms of 1% to 15 years’ imprisonment in Lehigh County. N.T., Sentencing, October 11, 1991, at 1. No appeal was filed. In October 1991, Kratzer was sentenced to a term of 6 to 14 years’ imprisonment on each count in Northampton County, to run concurrently with the sentences imposed in Lehigh County and with one another. Id. at 4.

Kratzer then filed a petition under the Post-Conviction Relief Act (PCRA) alleging that his counsel was ineffective and that his Northampton County sentences were unlawful. Following a hearing, the PCRA court denied Kratzer’s petition. Kratzer then appealed to this Court. Although this Court found that Kratzer failed to prove that his counsel was ineffective, we concluded that his sentences were illegal because, pursuant to 35 Pa.C.S. § 780-113(f)(1.1), the maximum sentence Kratzer could receive on each count was 10 years. Commonwealth v. Kratzer, 437 Pa.Super. 665, 649 A.2d 461 (1994). Accordingly, we vacated the sentences and remanded the matter to the trial court for resentencing. Id.

On remand, the Northampton County trial court imposed one term of 5 to 10 years’ imprisonment, to run concurrently with the sentences imposed in Lehigh County. N.T., Re-sentencing, September 6, 1994, at 4-5. Further, at the second count, the court imposed a term of 1 to 2 years’ imprisonment, to run consecutively with the sentence imposed in Northampton County, and concurrently with the sentences imposed in Lehigh County. Id. at 6-7. Therefore, the court sentenced Kratzer to an aggregate term of 6 to 12 years’ imprisonment, to run concurrently with the Lehigh County sentences. Id. at 7. This appeal followed.

On appeal, Kratzer argues that (1) the imposition of consecutive sentences on remand was unlawful because (a) his plea agreement required the imposition of concurrent sentences, and (b) the constitutional provisions prohibiting double jeopardy prevent imposition of consecutive sentences on remand, where the original sentences were concurrent. Kratzer further argues (2) that the trial court erred in denying the withdrawal of his guilty plea because it was involuntary and unknowing as a result of guilty plea counsel’s ineffectiveness and coercion.

First, Kratzer Contends that his sentence is illegal because it violates his plea agreement and the constitutional principles prohibiting double jeopardy. In reviewing this claim, we are mindful that sentencing decisions typically are left to the discretion of the sentencing court. Commonwealth v. Semuta, 386 Pa.Super. 254, 562 A.2d 894, appeal denied, 524 Pa. 596, 568 A.2d 1246 (1989). However, where the court imposes an illegal sentence, the sentence must be corrected. Commonwealth v. Lee, 432 Pa.Super. 414, 638 A.2d 1006 (1994).

Kratzer asserts that his plea agreement required the Northampton County court to impose concurrent sentences, and, accordingly, the agreement was violated when the court imposed consecutive sentences on remand. However, Kratzer’s plea agreement did not require the Northampton County court to impose concurrent terms as to the two Northampton County charges. Rather, the agreement provided that Kratzer would serve not more than 7/6 to 15 years’ imprisonment on all counts. In other words, if the Lehigh County court sentenced Kratzer to 7}6 to 15 years’ imprisonment, the Northampton County court could impose no greater term of imprisonment, and his sentences would run concurrently with those in Lehigh County. On remand, the Northampton County court sentenced Kratzer to a term of 5 to 10 years’ imprisonment on the first count and to a consecutive term of 1 to 2 years’ imprisonment on the second count. Thus, Kratzer received an aggregate term of 6 to 12 years’ imprisonment, to run concurrently with his Lehigh sentence. Therefore, the sentence on remand did not violate the plea agreement, as it ran concurrently with Kratzer’s Lehigh County term of imprisonment and it did not exceed 1% to 15 years.

Kratzer also asserts that the constitutional provisions prohibiting double jeopardy prevent imposition of consecutive sentences on remand where the original sentences were concurrent. In making this claim, Kratzer relies on Commonwealth v. Hermankevich, 220 Pa.Super. 197, 286 A.2d 644 (1971). In that case, the trial court vacated Hermankevich’s original concurrent sentences and resentenced him to several consecutive terms of imprisonment. As a result, Hermankevich’s aggregate sentence was increased from 12 to 24 years’ imprisonment to 18 to 36 years’ imprisonment. Hermankevich appealed, alleging that the imposition of consecutive rather than concurrent sentences violated his constitutional rights.

We considered Hermankevich’s claim in light of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce, the United States Supreme Court held that a court may not impose a more severe sentence upon a defendant after a new trial unless reasons based upon objective information of identifiable conduct on the part of the defendant after the original sentencing proceeding are made a part of the record. Initially, this Court noted that the Pearce mandate applies not only where there has been a new trial, but also where an illegal sentence has been corrected. Hermankevich, supra, 220 Pa.Super. at 200, 286 A.2d at 646. Accordingly, pursuant to Pearce, we held that the court’s imposition of an increased sentence, absent any identifiable conduct on the part of Hermankevich that occurred after the time of the original sentencing proceeding, violated the Pearce mandate. Id. at 201, 286 A.2d at 646.

However, Hermankevich “[did not establish] a prophylactic rule that every time a sentence is changed from concurrent to consecutive there is an increase in sentence which mandates the application of the principles of North Carolina v. Pearce.” Commonwealth v. Taylor, 238 Pa.Super. 232, 240, 357 A.2d 562, 565-66 (1976) (en banc), appeal denied. Therefore, Kratzer’s reliance on HermanJcevich is misplaced.

Instead, we find Taylor to be more analogous to the present case. There, James Taylor was sentenced to two concurrent terms of 2 to 4 years’ imprisonment, which exceeded the maximum penalty permitted. Accordingly, his original sentences were vacated, and the trial court imposed two consecutive 1-year terms of imprisonment, for an aggregate sentence of 2 years. Taylor appealed to this Court, alleging that his double jeopardy rights were violated when consecutive rather than concurrent terms of imprisonment were imposed on remand. Id. at 235, 357 A.2d at 563. However, this Court held that Pearce does not control where sentences imposed on remand are reduced, not increased. Id. at 239, 357 A.2d at 565. We explained that “the original terms of two-to-four years were unlawful, and upon remand, the trial court did no more than impose a new sentence which was lawful.” Id. at 240, 357 A.2d at 566. Accordingly, the judgment of sentence was affirmed.

Here, Kratzer’s aggregate sentence was reduced from 6 to 14 years’ imprisonment to 6 to 12 years’ imprisonment. Thus, pursuant to Taylor, supra, because his aggregate term of imprisonment did not increase, no constitutional violation is implicated. Therefore, we find this contention meritless. See also Commonwealth v. Sutton, 400 Pa.Super. 291, 296, 583 A.2d 500, 502-03 (1990), appeal denied 528 Pa. 610, 596 A.2d 156 (1991) (no double jeopardy violation is implicated where the aggregate sentence upon resentencing does not exceed the original aggregate sentence); Commonwealth v. Black, 366 Pa.Super. 425, 531 A.2d 492 (1987) (same); Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983) (same).

Finally, Kratzer argues that the trial court erred in denying the withdrawal of his guilty plea because it was involuntary and unknowing as a result of guilty plea counsel’s ineffectiveness and coercion. This identical issue was raised before and decided by a panel of this Court in Commonwealth v. Kratzer, supra, 437 Pa.Super. 665, 649 A.2d 461. Under the doctrine of the “law of the case,” where an appellate court has considered and decided a question on appeal, that Court will not, in a subsequent appeal of another phase of the same case, reconsider its previous ruling. Commonwealth v. Lenig, 403 Pa.Super. 455, 460, 589 A.2d 700, 703, appeal denied, 528 Pa. 636, 598 A.2d 993 (1991). Therefore, we need not consider this issue.

Based upon the foregoing, we affirm the judgment of sentence.

Judgment of sentence affirmed.


author: HOFFMAN, Judge:

text:
    660 A.2d 105
    COMMONWEALTH of Pennsylvania v. Robert F. WILSON, Appellant.
    Superior Court of Pennsylvania.
    Argued April 20, 1995.
    Filed June 13, 1995.

      W. Patrick Scott, Philadelphia, for appellant.
    Nicholas J. Casenta, Jr., Asst. Dist. Atty., West Chester, for Com., appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the October 12, 1994 judgment of sentence for driving under the influence of alcohol. Appellant, Robert F. Wilson, asserts the following:

I. When a person is found intoxicated while sitting in the driver’s seat of a stopped automobile without keys, and it is apparent the vehicle was involved in an accident at an unknown previous point in the evening, is the evidence sufficient to establish control of the vehicle for purposes of 75 Pa.C.S.A. § 3731(a)(1)?

Appellant’s Brief at 5.

On March 5, 1994, two men travelling on Route 52 in Chester County noticed that there was a vehicle located down over the road’s embankment, approximately one hundred (100) yards from the side of the road. When the men approached the car, they found appellant alone, sitting in the driver’s seat. Shortly thereafter, Officer Pamela A. Camlin arrived at the scene, and observed appellant slumped over the steering wheel. When Officer Camlin asked appellant if he was alright, appellant became belligerent, telling Officer Camlin that his car had gone airborne and that she had caused it to go airborne. Officer Camlin then placed appellant under arrest for driving under the influence. Afterward, while inspecting the exterior of the car, Officer Camlin found that the hood of the car was still warm.

Following a non-jury trial on September 19, 1994, appellant was convicted of driving under the influence of alcohol. Appellant was then sentenced on October 12, 1994 to forty-eight (48) hours to twenty-three (23) months imprisonment and a fine of three hundred ($300.00) dollars. This timely appeal followed.

Appellant now claims that there was insufficient evidence to establish that he was in actual physical control of the car in order to convict him of DUI. We disagree.

Preliminarily, we note that the test for sufficiency of evidence is well established:

[Wjhether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt— This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990) (citations omitted).

Pennsylvania statutory law holds:

(a) Offense Defined. — A person shall not drive operate or be in actual physical control of the movement of any vehicle:
(1) while under the influence of alcohol to a degree which renders the person incapable of safe driving.

75 Pa.C.S. § 3731(a). To convict under this statute, the Commonwealth must prove that: (1) a defendant was driving, operating or in actual physical control of the automobile, and (2) at that time, the defendant was under the influence of alcohol to a degree which rendered him incapable of safe driving. Commonwealth v. Price, 416 Pa.Super. 23, 26-27, 610 A.2d 488, 489 (1992). The term “operate” requires evidence of actual physical control of either the machinery of the motor vehicle or the management of the vehicle’s movement, but not evidence that the vehicle was in motion. Commonwealth v. Bobotas, 403 Pa.Super. 136, 142, 588 A.2d 518, 521 (1991).

In Commonwealth v. Trial, 438 Pa.Super. 209, 652 A.2d 338 (1994), we recently found that the defendant was in actual physical control of the movement of his vehicle where the defendant was found slumped over the steering wheel of his car, which was stopped in a diagonal position across a residential road. Although the car’s motor was not running, the defendant’s car keys were in the “on” position in the ignition, the parking lights were on, and the defendant had his seat belt strapped around him. The Trial panel concluded that the facts indicated that the car had merely “stopped,” presumably by stalling, and was not in fact “parked,” which would have required a finding that the car was running in order to find actual physical control by the defendant. See Price, 416 Pa.Super. at 27-28, 610 A.2d at 490 (intoxicated defendant, who was sitting in driver’s seat in immobile car with flattened tire and broken wheel rim, was found not to have actual physical control of car as car was “parked” and not running). Consequently, the Trial Court found that the defendant had actual physical control of the vehicle, and that since he was intoxicated at the time, he was guilty of driving under the influence.

Similarly, the facts in the instant case indicate that appellant was in actual physical control of the car. First, appellant was in the driver’s seat and alone in the car. See Trial, supra. In addition, appellant’s car was found on the bottom of an embankment approximately one hundred yards off the side of the road. As there were skid marks from the roadway to where the car was at rest, the evidence indicates that the car was not in fact “parked,” but had “stopped” when appellant drove off the road, and got stuck at the bottom of the embankment. N.T. 9/19/94 at 22. See Trial, supra. Finally, although it was a cold night, the hood of the car was warm, suggesting that the car had just been driven. See Commonwealth v. Mahaney, 373 Pa.Super. 129, 135, 540 A.2d 556, 559 (1988) (debris in routinely patrolled roadway indicated that car accident had just occurred, and allowed court to infer that the defendant, who was intoxicated at scene of accident, was guilty of driving under the influence), appeal denied, 520 Pa. 587, 551 A.2d 214 (1988). Consequently, we find that there was sufficient evidence for the trial court to find that appellant was in actual physical control of the vehicle. See Trial, supra. Accordingly, as appellant stipulated at trial that he was intoxicated and incapable of safe driving when Officer Camlin saw him in the car, we find that there was sufficient evidence to convict appellant for driving under the influence. See Mahaney, supra.

Accordingly, we affirm.

Affirmed.

      . 75 Pa.C.S. § 3731(a).

        . This conclusion is strengthened by the fact that appellant initially told Officer Camlin that his car had gone airborne.

      . While the keys for appellant's car were never found, the trial court simply concluded that appellant tossed them away as the court believed the testimony of one of the Commonwealth's witnesses, who stated that when he first approached the car, he observed appellant put his arm out of the window and pull it back inside the car. N.T. 9/19/94 at 9; Commonwealth v. Griscavage, 512 Pa. 540, 546, 517 A.2d 1256, 1259 (1986) (trier of fact may believe all, part or none of the evidence). See also Hardcastle, supra, 519 Pa. 236, 546 A.2d 1101.


author: POPOVICH, Judge:

text:
    660 A.2d 107
    COMMONWEALTH of Pennsylvania, Appellee, v. Regis BOBITSKI, Appellant.
    Superior Court of Pennsylvania.
    Argued April 6, 1995.
    Filed June 14, 1995.

      Joseph E. Hudak, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com.
    Before POPOVICH, FORD ELLIOTT and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Allegheny County following appellant’s convictions on four counts of Commercial Bribery. Herein, appellant contends that his speedy trial rights under the United States’ and Pennsylvania Constitutions and Pa. R.Crim.P. 1100 were violated. After careful review, we affirm.

In August 1989, appellant was charged with five counts of Commercial Bribery, one count of Forgery, one count of Tampering with Records or Identification, one count of criminal conspiracy and two counts of Corrupt Organizations. These charges arose during appellant’s employment with the Thrift Drug Company. Appellant was responsible for soliciting bids and awarding construction contracts, which enabled him to solicit bribes from various contractors spanning a period of approximately six years.

On February 7, 1990, appellant filed a motion to quash the charges of Corrupt Organizations and Forgery. The trial court granted the motion to quash these counts, and the Commonwealth appealed. The Commonwealth believed that a proper interpretation of the Pennsylvania Corrupt Organizations law supported the charges. The trial court entered an order staying prosecution on the remaining charges while the Commonwealth appealed. We affirmed the trial court’s ruling in a memorandum opinion filed June 12, 1991. Our supreme court granted allocatur and subsequently affirmed .our order in an opinion dated November 1, 1993. In its opinion, our supreme court stated that the Commonwealth’s position could not be supported by a reading of the corrupt organizations statute and would lead to “absurd and unintended results.”

On March 8, 1994, appellant filed a motion to dismiss the remaining charges o^ commercial bribery. Appellant contended that his speedy trial rights under Article I, section 9 of the Pennsylvania Constitution, the 6th Amendment of the U.S. Constitution, and Pa.R.Crim.P. 1100 were violated. Appellant contended that not only was he prejudiced by the delay in bringing him to trial but also that two defense witnesses had been lost. One witness had apparently died and the other allegedly no longer resided in Pennsylvania. Appellant contended that these witnesses would have proved that Thrift Drug consented to his activities. The trial court allowed appellant the opportunity to establish prejudice due to the loss of these witnesses, but he was unable to do so.

Also, the Commonwealth and appellant disagreed as to whether appellant had consistently asserted his speedy trial rights. Appellant never filed motions to dismiss the Commercial Bribery charges while the appeal process was ongoing. The Commonwealth contended that appellant agreed to a stay of these charges in exchange for remaining free on bail. The court denied appellant’s motion to dismiss the Commercial Bribery charges.

Appellant proceeded to a jury trial on March 14, 1994, and was convicted of four counts of commercial bribery. The court immediately sentenced appellant to a term of probation for each conviction. Appellant filed post-trial motions, which were denied, followed by this timely appeal.

Appellant now contends that his speedy trial rights were violated. We disagree and affirm his judgment of sentence.

A defendant’s speedy trial rights are governed by Article I, Section 9 of the Pennsylvania Constitution, Pa.R.Crim.P. 1100 and the Sixth Amendment to the United States Constitution. Commonwealth v. Africa, 524 Pa. 118, 569 A.2d 920 (1990); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Our supreme court, in Commonwealth v. Africa, supra, outlined the appropriate inquiry for determining if a defendant’s speedy trial rights were violated, supra:

In analyzing alleged violations of the rule, we engage in a two-step analysis. We must decide at the outset whether the delay itself was sufficiently long to be “presumptively prejudicial.” Commonwealth v. Reinhart, 466 Pa. 591, 353 A.2d 848 (1976). If the delay is determined to be presumptively prejudicial, the court then is required to employ the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which considers four factors: the length of the delay; the reason for the delay; the defendant’s assertion of the right to a speedy trial; and any prejudice to the defendant arising from the delay. Jones v. Commonwealth, 495 Pa. 490 434 A.2d 1197 (1981); Commonwealth v. Myers, 472 Pa. 200, 371 A.2d 1279 (1977); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). The length of the delay, of course, is the “triggering mechanism,” Commonwealth v. Williams, 457 Pa. 502, 506-507, 327 A.2d 15, 17 (1974), and “when a delay is so extensive that a court considers it presumptively prejudicial, inquiry into the three other factors is necessary.” In deciding whether a violation has occurred, we further analyze the circumstances of each case within the context of a consideration of the rights of society as well as those of the accused to be protected from undue and oppressive pre-trial imprisonment. Commonwealth v. Simms, 509 Pa. 11, 500 A.2d 801 (1985); Commonwealth v. Pearson, 450 Pa. 467, 303 A.2d 481 (1973).

Africa, supra, 524 Pa. 124, 569 A.2d at 923.

Here, the Commonwealth concedes that the delay of almost five years between the filing of the complaint and appellant’s trial is prejudicial. In Africa, our supreme court held that a twenty-seven month delay was “presumptively prejudicial” necessitating a balancing of the Barker factors. Africa, at 124, 569 A.2d at 923. Therefore, we must examine the remaining factors in light of the facts in this ease.

However, when we apply the factors outlined in Barker and Africa, we cannot find that appellant’s speedy trial rights have been violated in light of our decision in Commonwealth v. DeBlase, 431 Pa.Super. 100, 635 A.2d 1091 (1994), allocatur granted 538 Pa. 632, 647 A.2d 507 (1994). In DeBlase, the defendant’s case was called to trial almost eight years after his arrest. Id. 431 Pa.Super. 103-109, 635 A.2d at 1092-1095. The delay in bringing the case to trial resulted from the Commonwealth’s appealing the lower court’s granting of various defense suppression motions. Id. at 103, 635 A.2d at 1092. The delay was further occasioned by our supreme court’s holding the case for a significant amount of time before denying allocatur. When defendant’s case was finally called to trial, the lower court granted defendant’s motion to dismiss on the grounds that his speedy trial rights had been violated. Id. at 104, 635 A.2d at 1093.

The Commonwealth appealed the trial court’s ruling, and we reversed, holding that defendant’s speedy trial rights had not been violated. Id. at 114, 635 A.2d at 1098. The Commonwealth conceded that the delay was presumptively prejudicial and that appellant had asserted his speedy trial rights at all times. Id. at 109, 635 A.2d at 1095. We stated that the delays caused by the litigation and appeal of pretrial motions could not be weighed against the Commonwealth. Id. at 113, 635 A.2d at 1097. Regarding the delay of three years and eight months during which our supreme court considered the defendant’s petition for allocatur, we stated that this weighed against the Commonwealth, but not as heavily as if the delay had been caused deliberately by the Commonwealth. Id. at 111, 635 A.2d at 1096.

Finally, we evaluated if there had been prejudice to the defendant as a result of the delay. Id. at 113, 635 A.2d at 1097. We rejected the trial court’s finding that a witness had died during the delay because the record did not disclose evidence of such a witness or the substance of the witness’ testimony. Id. After conducting the Barker v. Wingo, inquiry we concluded that the defendant’s speedy trial rights had not been violated and he had not been prejudiced, even though there were significant delays caused by the appellate process. Id. at 114, 635 A.2d at 1098.

Here, we have an almost identical situation. The Commonwealth concedes that the delay was presumptively prejudicial but does not concede that appellant asserted his speedy trial rights at all times. In fact, the Commonwealth’s petition for stay of the Commercial Bribery charges was granted and appellant did not protest this trial court ruling. Thus, appellant’s timely assertion of his speedy trial rights cannot weigh against either party.

Important similarities exist between this case and DeBlase when examining the reason for the delay and the prejudice suffered by the defendant. In this case, the delay resulted from the Commonwealth’s appeal of the trial court’s dismissal of the Corrupt Organizations charges. The Commonwealth believed, in good faith, that a proper reading of the Pennsylvania Corrupt Organizations Act supported its position. The Commonwealth based its position on state and federal case law interpreting similar statutes. In fact, some of the delays in the appellate process resulted from appellant’s requests for extensions of time to file a brief.

Appellant asserts that his speedy trial rights were violated because the Commonwealth appealed in bad faith. There is no evidence of bad faith except appellant’s bald assertion of bad faith and appellant’s continued reference to our supreme court’s opinion. Appellant asserts that our supreme court stated that the Commonwealth’s reading of the corrupt organization statute was “absurd.” This is not so. The supreme court stated that the Commonwealth’s reading of the statute would cause “absurd results.” Moreover, if the Commonwealth’s appeal was made in bad faith and was frivolous, it is highly unlikely that our supreme court would have granted allocatur. The Commonwealth’s position was not without legal authority. Thus, this factor cannot be weighed against the Commonwealth.

Finally, regarding prejudice, DeBlase leads us to conclude that appellant was not prejudiced by the delay. Appellant asserts that two witnesses were lost as a result of the delay. One witness apparently died, but appellant was not able to establish how this witness would have helped his case. The other witness was allegedly outside the jurisdiction of the Pennsylvania courts. Appellant failed to substantiate the testimony of either of these witnesses when given the opportunity to do so at the pretrial hearing. Once again, this factor cannot be weighed against the Commonwealth. Because appellant has failed to establish a violation of his speedy trial rights, the lower court did not err in failing to dismiss the charges against appellant. See also, Commonwealth v. Smalis, 527 Pa. 375, 592 A.2d 669 (1991), cert. denied, Smalis v. Pennsylvania, 502 U.S. 859, 112 S.Ct. 175, 116 L.Ed.2d 138 (1991) (holding that defendant’s speedy trial rights were not violated, and defendant could be tried on remaining charges, where Commonwealth’s appeal of a demurrer ruling consumed approximately six years).

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 4108(a). The trial court opinion stated that appellant was convicted on five counts of Commercial Bribery, but the record reveals that appellant was convicted and sentenced on four counts of Commercial Bribery. He was charged with five counts of Commercial Bribery.

      . The Commonwealth nolle prossed the charges of conspiracy and tampering with records.

      . The Commonwealth did not appeal the dismissal of the Forgery charge. The Commonwealth believed that Pennsylvania and Federal case law supported the Corrupt Organizations charges and relied'on various state and federal cases in asserting this claim.

      . Commonwealth v. Bobitski, 534 Pa. 310, 632 A.2d 1294 (1993).


author: BECK, Judge:

text:
    660 A.2d 111
    Frances RIGLER and Ronald C. Rigler, Appellants, v. Marcelle Bulgarino TREEN and Paul H. Treen.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1995.
    Filed June 15, 1995.

      Herbert R. Weiman, Philadelphia, for appellants.
    Marilyn L. Walder, Philadelphia, for appellees.
    Before BECK, KELLY and HOFFMAN, JJ.
   BECK, Judge:

The issue is whether appellants, the parents of a biological father whose parental rights have been involuntarily terminated, were properly denied visitation with their grandson, who has been adopted by his stepfather. We find that the trial court correctly determined that such visitation would not be in the child’s best interest and we therefore affirm.

R.B., the child whose custody is at issue, was born on November 15, 1989. His biological parents, appellee Mareelle Bulgarino (now known as Mareelle Bulgarino Treen) and Ronald C. Rigler, Jr., never married and have no ongoing relationship. In March, 1991, Mareelle Bulgarino married appellee Paul H. Treen. In May, 1991, she filed a petition to terminate the biological father’s parental rights involuntarily under 23 Pa.C.S. § 2511(a)(1). The petition was granted in September, 1991, and upheld on appeal in January, 1993. Shortly thereafter, R.B. was adopted by Paul Treen. Mareelle and Paul Treen also have a younger daughter, Maria.

Appellants Frances and Ronald C. Rigler, R.B.’s biological paternal grandparents, initially were granted temporary visitation while their son appealed the trial court’s order involuntarily terminating his parental rights. The order permitted the Riglers to visit with R.B. in his mother’s presence for two hours once a month.

In April, 1993, shortly after receiving notification that the termination of parental rights had been affirmed by this court, Marcelle Treen filed a petition to terminate the Riglers’ visitation rights. After a hearing at which both the Riglers and the Treens testified and introduced the testimony of witnesses, including psychological experts, the trial court determined that to allow the Riglers ongoing visitation rights would not be in R.B.’s best interest and would interfere with the parent/child relationship. The court therefore rescinded the temporary visitation order and denied the grandparents’ petition for visitation. This timely appeal followed.

The Riglers’ petition for visitation is based upon their special status as grandparents. Section 5301 of the Domestic Relations Code declares that it is the public policy of this Commonwealth, when in the best interest of the child, to assure continuing contact of the child with grandparents when a parent is deceased, divorced or separated. 23 Pa.C.S. § 5301. In furtherance of this policy, three statutory sections have been enacted which both create a cause of action for grandparent visitation and designate the parties who may bring suit under their provisions. See Hill v. Divecchio, 425 Pa.Super. 355, 625 A.2d 642 (1993).

Section 5311 of the Domestic Relations Code applies where a parent of the child is deceased. Section 5312 applies in cases of separation or divorce. Section 5313 covers grandparents with whom the child has resided for 12 months or more. Each of these statutory provisions confers, upon a grandparent to whom it applies, standing to petition for visitation and/or partial custody.

The Riglers claim that they have standing to seek visitation with R.B. under Section 5312. The trial court did not expressly address the issue of standing, but in considering the merits of the Riglers’ petition apparently concluded that they had standing under one or more of the above statutory sections. We find no error in this conclusion.

First, we note that although the Riglers’ son and R.B.’s mother were never married, the courts of this Commonwealth have held that Section 5312 allows biological grandparents to seek visitation even with a grandchild born out of wedlock where the child’s parents’ relationship has ended. Bishop v. Piller, 399 Pa.Super. 52, 581 A.2d 670 (1990), affirmed, 536 Pa. 41, 637 A.2d 976 (1994).

Section 5312, and indeed the entire statutory scheme relating to grandparent visitation, is silent regarding the standing of grandparents like the Riglers, whose child’s rights with respect to the grandchild have been involuntarily terminated. However, Section 5314 of the statute does address the effect upon a grandparent’s rights of the grandchild’s adoption. Under that section, a grandparent’s standing is cut off only if the child is adopted by third parties who are not the stepparents or grandparents of the child. Suroviec v. Mitchell, 347 Pa.Super. 399, 500 A.2d 894 (1985). Moreover, Section 5314 preserves grandparental visitation rights following stepparent or grandparent adoption not only in cases where the biological parent has died, but also in cases of separation or divorce. Any stepparent or grandparent adoption where the biological parent is alive necessarily involves the termination, either voluntarily or involuntarily, of the biological parent’s rights. Since the grandparents’ rights survive such an adoption, it follows that the termination of the biological parent’s rights alone does not cut off the visitation rights of the biological grandparents.

Further, under the explicit provisions of Section 5314, the Riglers’ standing was not affected when Paul Treen, R.B.’s stepfather, adopted him. We therefore conclude that the Riglers did have standing to seek visitation with R.B., and that the trial court properly considered their petition on its merits.

In undertaking that consideration, the trial court recognized that the rights given to grandparents by these statutory sections are not absolute. While the statutory scheme permits grandparents to sue for visitation in specified situations, the court is authorized to grant such rights only if it finds that visitation would be in the child’s best interest and would not interfere with the parent-child relationship. 23 Pa.C.S. §§ 5311, 5312, 5313.

In considering whether visitation with the Riglers would be in R.B.’s best interest and would not interfere with the parent/child relationship, the trial court carefully reviewed the testimony of the parties, their fact witnesses and both parties’ experts. The court made the following assessment:

The record clearly shows that the relationship between Marcelle and the Riglers is an antagonistic one. Marcelle testified that Mrs. Rigler had a very hostile attitude toward her. She had been in Mrs. Rigler[’s] house only a few times. Once Mrs. Rigler would not invite her into her house. On another occasion, Mrs. Rigler cursed her and called her a “bitch.” During the bridal shower that was held in the Riglers [sic], Mrs. Rigler refused to join the people in the room and take pictures together with Marcelle and other people. She presented her bridal gifts in a heavy trash bag. Marcelle testified that “whenever [she] was in [Mrs. Rigler’s] company, she [Mrs. Rigler] made it obvious that she didn’t like [her] and didn’t want [her] around.” This hostility between Marcelle and Mrs. Rigler created enormous anxiety in Marcelle when she had to send Richie to the Riglers for visitation. Paul Treen, Marcelle’s husband, testified quite convincingly as to her behavior surround [sic] those visitations: “She gets all, she gets nervous. She gets uptight. She gets full of stress.” The parents sometimes got into arguments about those visits in front of [R.B.].

Trial Court Opinion at 7-8 (citations to transcript omitted). Based on these factual findings the court made the following conclusions:

The Court is convinced that the relationship between Marcelle and the Riglers would have an adverse effect on the child if the Riglers are permitted to have visitation with him. Elaine Frank, MSW [the Treens’ expert witness], testified extensively on this point. She stated that granting the Riglers visitation rights would have “the effect of making Marcelle feel totally intimidated and uncertain of what rights she had, whether she had any rights.” Under such circumstances, Ms. Frank believed that “it is better for his [R.B.’s]- growth and development that his primary relationship stay with mother, father, sibling and the people that they are happy with.” By so doing, she continues, the child will be “more stable, more secure person than to be torn apart by what’s going on here now.” The Court finds that her opinion is based on her careful study of the parties involved and her extensive expertise in this area. The Court concludes that permitting the Riglers’ visitation rights to continue would not be in [RJB.’s] best interest and it would interfere with the relationship between [R.B.] and his parents.

Trial Court Opinion at 8 (citations to transcript omitted). Accordingly, the Riglers were denied visitation on the grounds that it would not be in the child’s best interest and would interfere with the parent-child relationship.

The Riglers raise two arguments in challenging the trial court’s determination. First, they contend that the court erred in finding that grandparent visitation was not in the child’s best interest and that such visitation would interfere with the parent-child relationship. Second, they argue that the trial court erred in relying upon the expert testimony of Elaine Frank, MSW, because she was not adequately qualified to offer an opinion on the issue of grandparent visitation in a stepparent adoption and because the trial court gave too much weight to her testimony.

In considering these arguments, we are cognizant that “The guiding polestar in deciding all cases involving a child, including whether grandparent visitation rights should be awarded, is the best interests of the child.” Hughes v. Hughes, 316 Pa.Super. 505, 508-09, 463 A.2d 478, 480 (1983). See also Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 261, 455 A.2d 1180, 1182 (1983); Bucci v. Bucci [351 Pa.Super. 457, 460, 506 A.2d 438, 439 (1986) ]; Commonwealth ex rel. Miller v. Miller, [329 Pa.Super. 248, 253, 478 A.2d 451, 453 (1984) ]. In a grandparent visitation case, the grandparent has the burden to prove that it is in the child’s best interest to have “some time” with the grandparent. Bucci, supra, 351 Pa.Super. at 460, 506 A.2d at 440. The burden is lower than in a custody or partial custody situation since the amount of time that the child would be away from his parent is less.

Bishop v. Piller, supra at 56, 581 A.2d at 672. Moreover, as in any other case involving custody, partial custody or visitation of children,

[t]he scope of review of [the] appellate court ... is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (1992) (citations omitted).

The Riglers argue that the trial court failed to give adequate consideration to the best interest of the child because it focused on the antagonistic relationship between the Riglers and Marcelle Treen rather than on the relationship between the Riglers and R.B. They argue that because no evidence was presented to suggest that the visitations pursuant to the temporary order were detrimental to R.B., the court abused its discretion in terminating the visitations. Further, they argue that visitation rights of two hours per month, as authorized by the temporary order, were so minimal that they could not interfere with the parent-child relationship. These arguments are unpersuasive.

Contrary to the Riglers’ assertions, the trial court did not focus solely on the relationship between the Riglers and Marcelle Treen. Rather, the court’s primary concerns were the negative effect that the relationship has upon Marcelle Treen’s ability to parent effectively and the effect that the tension surrounding the visitations has upon a young child like R.B. The record in this matter amply supports the trial court’s findings on these issues. Both the Treens and Ms. Frank, their expert witness, testified at length regarding the negative effects of Mrs. Rigler’s domineering personality upon Marcelle Treen, the extreme anxiety that even the limited visitations pursuant to the temporary order had produced in Marcelle Treen, and the tension that disrupted the Treen family as a result. Both of the Treens testified that the Riglers had repeatedly expressed their intention to increase their visitations to partial custody, regardless of the Treens’ wishes in the matter. This conduct by the Riglers increased Marcelle’s feeling that she does not have control over her son and that despite her efforts to establish a new family unit by Paul Treen’s adoption of R.B., the Treen family will never be able to function normally, without outside interference. Marcelle Treen’s distress over this situation was apparent from her testimony, and we find no abuse of discretion in the trial court’s conclusion that the degree of anxiety and emotional disturbance experienced by R.B.’s mother would interfere with her parenting and would cause distress to the child himself if visitations with the Riglers were to continue. In light of these factual conclusions, we will not disturb the trial court’s legal conclusion that visitation would not be in R.B.’s best interest.

Similarly, we find no merit in the Riglers’ contention that the minimal level of visitation authorized by the temporary order could have been continued without interfering with the parent-child relationship. As noted above, the record supports the trial court’s finding that even the two hours per month that the Riglers had spent with R.B. pursuant to the temporary order had a negative effect on Marcelle Treen’s relationship with R.B. and on the atmosphere within the Treen family. The trial court properly concluded that the potential benefits of such minimal contact were outweighed by the potential harm to the child resulting from the tension and anxiety surrounding the visits.

The Riglers’ second claim centers upon the trial court’s consideration of the testimony of Elaine Frank, MSW, a social worker who specializes in counseling adoptive families. The Riglers claim that Ms. Frank, who testified on behalf of the Treens, should not have been qualified as an expert because she lacked sufficient experience in the specific area of grandparent visitation following stepparent adoption. Further, they argue that the trial court erred in giving weight to Ms. Frank’s testimony and report because she had not met with the Riglers or questioned R.B. about his relationship with them. Rather, the Riglers claim, the trial court should have given greater weight to the testimony of their expert witness, Robert Tanenbaum, Ph.D., a psychologist who stated that he had previously testified in cases involving grandparent visitation and natural parent adoption and who met briefly with the Treens as well as the Riglers and R.B.

Our standard of review of this claim is limited.

Whether a particular witness qualifies as an expert is a matter within the discretion of the trial court. Ruzzi v. Butler Petroleum Company, 527 Pa. 1, 10, 588 A.2d 1, 5 (1991). A decision on competency of an expert will not be reversed on appeal absent a clear abuse of discretion. Id.

Miller v. Brass Rail Tavern, 434 Pa.Super. 383, 385, 643 A.2d 694, 695 (1994). Further, the weight to be given to an expert’s testimony is for the factfinder. In re Glosser Bros., Inc., 382 Pa.Super. 177, 196, 555 A.2d 129, 139 (1989). In reviewing the trial court’s exercise of its discretion on this issue, we also keep in mind that the law of Pennsylvania “imposes a liberal standard for qualification of an expert, allowing a witness to testify as an expert if he has any reasonable pretension of specialized knowledge on the subject under investigation.” In re Glosser Bros., Inc., supra at 196, 555 A.2d at 138-39.

Applying the above standards to this case, we have no difficulty in concluding that the trial court’s qualification of Ms. Frank as an expert was not an abuse of discretion. Although Ms. Frank admitted that she had not previously handled a case in which a biological grandparent sought visitation following a stepparent adoption, her education and experience in working with adoptive families of all types gave her the necessary background to advise the court regarding the likely effect of grandparent visitation upon the Treen family. Moreover, we cannot agree with the Riglers’ contention that the trial court abused its discretion in according greater weight to Ms. Frank’s opinion than to that of the Riglers’ expert, Dr. Tanenbaum. The' court recognized Dr. Tanenbaum’s distinguished credentials and his previous testimony in cases involving grandparent visitation following stepparent adoption. However, the court found that Dr. Tanenbaum, although he briefly interviewed the Treens, misunderstood their feelings about R.B.’s relationship -with the Riglers and overstated their willingness to have the Riglers’ visits continue. In light of these misconceptions regarding the Treens’ attitudes towards visitation by the Riglers, the trial court concluded that Dr. Tanenbaum’s opinion should be given less weight than that, of Ms. Frank, who, despite not having met with the Riglers, had a superior understanding of the atmosphere within the Treen family and the effects of that atmosphere upon R.B. We cannot conclude that the trial court abused its discretion in considering Ms. Frank’s thorough knowledge of the delicate dynamics of this adoptive family more important to his decision than Dr. Tanenbaum’s previous experience with other families in a similar situation.

Our thorough review of the record and the parties’ arguments persuades us that the trial court gave careful consideration to the child’s best interest in making its decision in this difficult case. We find no abuse of discretion in the denial of the Riglers’ petition for grandparent visitation.

Order affirmed.

      . For purposes of this discussion, the term "visitation” will be used to describe both visitation in the parent’s presence and partial custody.

      . Section 5311 provides:
      § 5311. When parent deceased
      If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights, or both, to the unmarried child by the court upon a finding that partial custody or visitation rights, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application.
      23 Pa.C.S. § 5311.

      . Section 5312 provides:

        § 5312. When parents’ marriage is dissolved or parents are separated
      In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparent of a party, grant reasonable partial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application.
      23 Pa.C.S. § 5312.
      Significantly, while section 5311 provides that visitation and/or partial custody may be granted only to a parent or grandparent of the deceased parent, section 5312 permits such rights to be granted to the parent or grandparent of a party. Thus, this court has held that section 5312 allows any grandparent, even a grandparent whose own child is the custodial parent, to seek visitation with a grandchild. Hill v. Divecchio, supra.

      . Section 5313 provides:
      § 5313 When child has resided with grandparents. If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable partial custody or visitation rights, or both, to the child. The court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship.
      23 Pa.C.S. § 5313.

      . Section 5314 provides:
      § 5314 Exception for adopted children
      Sections 5311 (relating to when parent deceased), 5312 (relating to when parents’ marriage is dissolved or parents are separated) and 5313 (relating to when child has resided with grandparents) shall not apply if the child has been adopted by a person other than a stepparent or grandparent. Any visitation rights granted pursuant to this section prior to the adoption of the child shall be automatically terminated upon such adoption.
      23 Pa.C.S. § 5314.

      . In light of the Riglers’ conduct, Marcelle Treen's fears cannot be said to be entirely groundless. Although she may overreact to Mrs. Rigler’s strong personality, Marcelle Treen’s concerns are not completely hypothetical. Moreover, her reaction to the visitations has caused a present, actual effect upon the Treen family. These facts distinguish this case from Bishop v. Piller, supra (grandparent visitation properly granted where mother’s concerns about visitation were based on hypothetical events sometime in the future). Moreover, the trial court found Marcelle Treen's testimony regarding the nature and source of the hostile relationship between the Treens and the Riglers credible. The Riglers’ reliance upon Bucci v. Bucci, supra, 351 Pa.Super. 457, 506 A.2d 438, where this court affirmed the trial court’s finding that any hostility between the parties had been created by the child’s mother, is thus misplaced.

      . This finding distinguishes this case from Suroviec v. Mitchell, supra, 347 Pa.Super. 399, 500 A.2d 894, and Bucci v. Bucci, supra, on which the Riglers rely. In both of those cases, limited visitation of a few hours monthly or quarterly was permitted. However, in Suroviec, there was no particular hostility among the parties that might cause the visitation to interfere with the parent-child relationship, while in Bucci, there was no assertion that the claimed hostility between the parent and the grandparents caused the visits to impact negatively upon the relationship between the parent and the child.