author: TAMILIA, Judge: JOHNSON, Judge,

text:
    509 A.2d 338
    In re PENNY R., Nancy R., Petitioner and Natural Guardian of Dawn R., a Minor Child. Appeal of NANCY R.
    Superior Court of Pennsylvania.
    Submitted July 17, 1985.
    Filed May 7, 1986.

      Joan F. Shullo, Scranton, for appellant.
    Leonard J. Frawley, Jr., Towanda, for appellee.
    Before TAMILIA, JOHNSON and HOFFMAN, JJ.
   TAMILIA, Judge:

This appeal presents the unusual circumstance of consensus between appellant and respondent, Donnie R., who raise identical opposition to an Order of the Court of Common Pleas of Bradford County. It is also a case of first impression with respect to application of 35 Pa.S.A. § 10185, the hearing provisions of the Protection from Abuse Act.

Initiation of the protection action began conventionally with a petition filed by appellant on behalf of herself, and the parties’ two daughters, one of whom is a minor. A restraining Order was issued on February 16, 1984, and after a hearing, a stipulation was entered to the effect that appellant would remain in sole custody of the minor child and the marital home, and that both parties would attend counseling sessions. The stipulation was confirmed by the Order of May 25, 1984, with the (motioned) modification that appellee would be allowed overnight visitation in the marital home on weekends. The parties complied with all provisions of the Order. On June 15, 1984, the lower court sua sponte vacated the May 25 Order thereby discontinuing home visitation indefinitely. After the appropriate intervening procedures, this appeal was lodged.

The basis for the contested Order was an unsolicited letter of May 2, 1984, which, because of administrative error, had not immediately come to the attention of either the lower court or counsel; it had been made part of the file for a dependency proceeding related to the parties’ minor daughter, since juvenile authorities had requested emergency placement of the child. The author of this letter, the Director of the Mental Health Center which had at one point provided counseling services to the parties, indicated that overnight home visitation by appellee was adverse to the child’s best interests. Because the dependency action would be rendered unnecessary by curtailing of appellee’s home visits, the trial court felt compelled by the situation, and authorized by § 10185(b), to issue a temporary ex parte order as an emergency measure.

The requested hearing on petition by both parties to vacate the Order permitting in-home visits by the appellee, was carefully structured by all those involved, including the child advocate originally appointed for the dependency hearing, to avoid reaching the substantive matters underlying that Order by a proceeding in juvenile court on the dependency petition. The question we must address, therefore, is restricted to whether the court abused its discretion in effecting the ex parte Order without a meaningful hearing prior or subsequent to its issuance. We find that it did.

The nature of the Act has been defined by this Court in Cipolla v. Cipolla, 264 Pa.Super. 53, 55 n. 1, 398 A.2d 1053, 1054 n. 1 (1979):

The Protection From Abuse Act is a vanguard measure dealing with the problems of wife and child abuse---To institute an action, the plaintiff must file a petition with the court alleging abuse by the defendant. § 10184. If emergency relief is needed, the court may enter a temporary, ex parte order to protect the plaintiff or minor children from abuse. In any event, a hearing must be held within ten days at which time plaintiff must prove the charges. § 10185. (Emphasis added)

It requires no quantum leap in logic to conclude that if the alleged victim is required to demonstrate that abuse has in fact occurred, then a third party, in advancing the same accusations, must, at the very least, bear the same burden.

To meet the special exigencies of abuse cases, acceptable procedures have been fashioned which suspend, temporarily, the due process rights of the alleged abuser and providing for summary procedures for implementation of orders. See Eichenlaub v. Eichenlaub, 340 Pa.Super. 552, 490 A.2d 918 (1985). But continued suspension, irrespective of motivating factors, cannot be countenanced without judicial limits, subject to substantive or procedural restraint. However well intentioned the court may have been in its response to the letter here in question, a review on the record, necessarily ex post facto, to determine the correctness of the Order, should unquestionably have been conducted. The hearing of July 11, 1984, to consider the revocation order, does not fulfill the requirement as no evidence was taken nor testimony elicited, beyond reference to the letter from the Mental Health Center, which was inadmissible. Such a record does not provide an adequate basis for appellate review, proof of the point being that we are provided only with vague innuendos as to why a restraining order on visitation was issued.

We, therefore, hold that in all cases in which emergency ex parte Orders are issued under the provisions of the Act, a hearing shall be held within ten days of a motion by the parties regardless of whether the Order eventuated from a petition under § 10185(a) or from some other, exigent action. The motions of June 20, 1984, and June 29, 1984 filed by Nancy R./appellant and respondent, Donnie R., respectively, qualified as a petition under § 10185(a). See Commonwealth v. Allen, 506 Pa. 500, 505 n. 5, 486 A.2d 363, 365 n. 5 (1984) (contempt hearing conducted pursuant to § 10185(a)). Such a hearing, of course, must contain all of the elements of due process, which, above all, requires sufficient evidence, which, by its preponderance, will support restriction of a member of the family to his or her rights under the law.

Since in this case the parties are not adversarial, and the child advocate, and/or juvenile authorities support issuance of an order, an appropriate evidentiary proceeding with competent witnesses, called if necessary by the court, is required.

We, therefore, reverse and remand for proceedings consistent with this Opinion.

Reversed and remanded. Jurisdiction is relinquished.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Order of the Court of Common Pleas of Bradford County is reversed and remanded. Jurisdiction is relinquished.

JOHNSON, J., dissents.

JOHNSON, Judge,

dissenting:

This appeal presents the very narrow issue of whether the trial court abused its discretion in refusing to vacate its prior order, entered under the Protection From Abuse Act, whereby the limited right of visitation by the father in the home of the mother and child was withdrawn and an earlier order, entered by stipulation, was reinstated. Since our scope of review remains narrow, and since I am unable to find any abuse of discretion, I must dissent.

On February 16, 1984, Nancy R., the mother of an adult daughter, Penny, and a minor daughter, Dawn, joined with her two daughters in filing a Petition for Protective Order pursuant to the Protection From Abuse Act (PFA) against Donnie D.R., the husband-father, in the Bradford County Court of Common Pleas. The petition was signed and acknowledged by all three petitioners, including the minor daughter, Dawn.

The petition alleged that, on February 12, 1984, the defendant father had worked himself into a rage concerning his older daughter, Penny, and had gone into the backyard of the family residence with a shotgun, threatening to kill himself. After discharging the shotgun, he was disarmed by various relatives of the family, and he quieted down somewhat. As a result, on February 14, 1984, a separate petition was filed pursuant to Section 302 of the Mental Health Procedures Act against the father. He was taken by the State Police to Clarks Summit State Hospital, where he remained at the time the PFA petition was filed.

The PFA petition further alleged that, on February 14, 1984, the mother had learned for the first time that her husband had had “repeated and continuous sexual contact” with their daughters, Penny and Dawn, as recently as January 30, 1984. The petition alleged that the sexual abuse had been “ongoing for more than one year and consisted of various types of sexual contact including intercourse.” The petition alleged that all three petitioners were in fear for their physical safety and continued emotional harm and requested the court to enter an order restraining the husband-father from all contact with petitioners, with custody of the children to be placed in the petitioner-mother.

A temporary protective order was entered by the court on February 16, 1984 and a hearing was scheduled for February 24th. Upon motion of petitioner’s counsel, that hearing date was continued to March 15th. On that latter date, the trial court approved a stipulation which had been executed by all three petitioners, including the minor daughter, the defendant/father-husband, and respective counsel.

The March 15th stipulation, made an order of court by the hearing judge, provided that:

1. Defendant would refrain from causing or attempting to cause bodily injury to the petitioners and would refrain from placing them in fear of such injury; and
2. Petitioner [sic] was given exclusive possession of the family residence in New Albany; and
3. The parties agreed to seek such counseling as “MH/MR Services deem necessary and appropriate”; and
4. Visitation between defendant and his children would take place as MH/MR counseling service deemed appropriate.

From the record, it would appear that both the father and the mother underwent counseling at the Mental Health/Mental Retardation (MH/MR) Center pursuant to the stipulation. Sometime in late March or early April 1984, defendant was referred to one Edward C. Hook by his MH/MR counselor, Louise Carver. Defendant testified that he had ceased to obtain MH/MR counseling since Carver “felt that we wasn’t [sic] accomplishing anything and that [defendant] wanted a different type of counseling.” N.T., July 11, 1984, at 9.

On May 25, 1984, the court entered a replacement order, which had been submitted by counsel for defendant. Submitted with the proposed order was the motion of defendant requesting an amendment to the March 15th order to permit a change of counselors and in-home visitation by defendant at such times and places and under such circumstances as Edward C. Hook, defendant’s successor counselor, deemed appropriate. The proposed order of court and accompanying motion were submitted along with the separate “Stipulation” of Nancy R., petitioner/mother, and her counsel of record. Neither Penny R. nor Dawn R., the daughters, joined in the request for the proposed amendment, although they both were parties to the action and had previously joined in both the initial Petition for Protective Order and the Stipulation approved and filed as an Order of Court on March 16, 1984 [dated March 15, 1984].

Although the motion requesting the amended order specifically referred to short term visitation from Friday through Sunday on the part of the defendant, the provisions of the order submitted to, and signed by, the court differed from the original March 15th order only in transferring counseling responsibilities from MH/MR to Edward C. Hook and placing in Hook the discretion as to visitation between defendant and his family. The May 25th order contains only the signature of the hearing judge, whereas the earlier March 25th stipulation contains the signatures of all parties and their respective counsel at the end of the stipulation and above the signature of the court converting the stipulation into an order of court. In all other material respects, the order of March 15th and the order of May 25th are identical.

Against this procedural and factual background, the trial court entered its order of June 15, 1984 which (a) vacated the order of May 25th, (b) reinstated the order of March 15th, exclusive of that paragraph requiring counseling and placing visitation discretion with MH/MR, and (c) indicated the court’s intention to deny the request for emergency placement of Dawn R., the minor child, in a separate juvenile proceeding in the same court of common pleas. The June 15th order made clear that the court had before it a petition docketed at No. 2870 J.C. 1984 filed by the Bradford County Children and Youth Services (C.Y.S.). The juvenile petition prayed for the immediate removal of Dawn R. from the home of her mother, Nancy R.

In presenting the juvenile petition, C.Y.S. indicated that emergency placement would be rendered unnecessary if the visitation authorized by the court’s order of May 25th was terminated. Included in the court’s June 15th order was its declaration that it had before it a letter dated May 2, 1984 from the Director of the MH/MR Base Service Unit indicating that home visitation by the father to the home of the mother and minor child would be adverse to the best interests of the child. The court, in vacating the May 25th order and reinstating the March 15th order, made it clear that the court would not, on May 25th, have permitted any modification of the March 15th order, had the court been aware, at that time, of the contents of the letter from the Director of the Base Service Unit.

On June 20, 1984, a Motion to Vacate Order Modifying Modification of Petition for Protection from Abuse was filed on behalf of Nancy R. and Penny R. by counsel of record for petitioners. No reference is made in the motion — apart from the caption — to Dawn R., the minor child. Nine days later, a Petition to Vacate Order was filed on behalf of Donnie D.R., defendant in the original action. Again no reference, other than in the caption, is made to Dawn R., the minor. A hearing on both petitions was set for July 11, 1984.

At the hearing held to consider whether the June 25th order should be vacated, the trial court had before it its order of June 25th, the motion to vacate of Nancy R. and Penny R., and the petition to vacate of Donnie D.R. As set forth above, the order under attack set forth on its face the reasons why it had been entered, namely, the pending emergency placement petition of C.Y.S. and the belated awareness by the court of the May 2nd letter from MH/MR, both of which brought into question the best interests of the minor child, Dawn R. Counsel for both the mother and adult daughter, on the one hand, and for the father, on the other, had received copies of the June 25th order prior to filing their respective pleadings which sought to have that order vacated.

The motion to vacate filed on behalf of Nancy R. and Penny R. merely raised two “notice” points: (1) the parties did not have prior notice of the entry of the order and (2) the parties had no notice regarding any information from the Director of the MH/MR Base Service Unit, nor had the parties ever been seen by said Director.

The petition to vacate filed on behalf of Donnie D.R. similarly alleged lack of notice prior to the entry of the order, but went on to allege the unconstitutionality of the June 25th order under both the federal and state constitutions, alleged the lack of authority in the Director of the Base Service Unit to communicate with the court, and alleged that the letter from the Director violated the civil rights of the parties.

Neither pleading contained any allegations regarding the emergency placement petition filed at No. 2870 J.C. 1984 on behalf of Dawn R. or the claim by the Director of the MH/MR Base Service Unit that visitation by Donnie D.R. with Dawn R. would be adverse to the best interests of that minor.

It should be noted that at the hearing held on July 11, 1984, for the first time Dawn R. was represented by separate counsel, namely the attorney representing the minor in the separate dependency proceeding.

Following the hearing, the trial court entered its order of July 17, 1984 which merely denied the request that the June 15th order be vacated, and Nancy R. brought the present appeal from that order.

Nancy R., Appellant, presents two questions on this appeal:

1. Did the trial court err in taking into consideration hearsay as a basis for modifying its Order? and
2. Did the trial court err in failing to schedule a hearing before or after modifying its Order?

Since I find no merit in either of these contentions, I would affirm and must therefore dissent.

Turning to the second issue first, Appellant contends that failure of the trial court to order a hearing for the purpose of determining whether or not the court should vacate its prior order was error.

The Protection From Abuse Act provides, in pertinent part, in Section 5 thereof:

§ 10185. Hearings
(a) Within ten days of the filing of a petition under this act a hearing shall be held at which the plaintiff must prove the allegation of abuse by a preponderance of the evidence____
(b) The court may enter such temporary orders as it deems necessary to protect the plaintiff or minor children from abuse, upon good cause shown in an ex parte proceeding. Immediate and present danger of abuse to the plaintiff or minor children shall constitute good cause for purposes of this section.

35 P.S. § 10185(a) and (b).

In the present case, the need for a hearing within ten days of the filing of the original PFA petition was rendered unnecessary when the defendant, Donnie D.R., along with his counsel, entered into a stipulation on March 15, 1984 which granted to the petitioners virtually everything that had been requested in the original pleading. While the stipulation is silent as to the averments concerning the sexual abuse of Penny R. and Dawn R. by Donnie D.R. as set forth in the original petition, one can fairly assume that the family situation was such that all parties agreed that intervention by the common pleas court was both necessary and appropriate.

There is no merit in Appellant’s contention that the trial court committed error by failing to schedule a hearing before entering the May 25th order. At the time the order was entered, the court had before it these factors:

A. An original PFA petition which alleged (1) the dangerous use of a shotgun by Donnie D.R., (2) his temporary, involuntary commitment to a state hospital under the Mental Health Procedures Act, and (3) the sexual abuse of both Penny R. and Dawn R., a minor.
B. A petition brought by the Bradford County Children and Youth Services requesting the immediate removal of Dawn R. from the family residence, based upon that agency’s perception as to the best interests of the minor child.
C. A letter dated May 2, 1984 from the Director of the County MH/MR Base Service Unit declaring that visitation by the defendant, Donnie D.R., would not be in the best interests of the minor child.

Under Section 5 of the Act, 35 P.S. § 10185, the court has the power, if not the obligation, to enter such temporary orders as it deems necessary to protect minor children from abuse. As the trial court pointed out in its Opinion filed February 6, 1985, its finding — that the letter from the Director of the MH/MR Base Service Unit indicated that the child would be adversely affected by the visitation of her father — warranted its revocation of an order that would not have been entered had the court been timely aware of the letter’s contents.

I am at a loss in perceiving- Appellant’s argument regarding the need for the court to schedule a hearing after the June 15th order was entered. In fact, both Appellant and her spouse, the defendant, sought and were granted a hearing date of July 11, 1984. For reasons known only to the parties, they elected to limit their pleadings to the issue of whether the order was improperly entered since it was without prior notice to the parties.

They did not seek to subpoena the MH/MR Director, nor did they include any allegations in either pleading intended to place new, or additional, facts before the court on the issue of the continuing need for protection from abuse or the best interests of the minor child. As set forth above, the court was clearly within its power in entering the June 15th order. The result of that order was that the parties continued to have all of the protection afforded under either of the two previous stipulations, with the exception that the interests of the minor child were being considered in removing the right of visitation which would have been authorized upon the exercise of discretion by Edward C. Hook.

The entire thrust of Appellant’s attack at the hearing seeking to have the June 15th order vacated was that it had been entered without notice to Appellant. Given the factors confronting the court on June 15, and given the clear language of 35 P.S. § 10185(b), no notice was required. Where, as here, the only attack upon the order was that Appellant was not permitted to appear and present evidence before its entry, and where Appellant elects to structure her pleading leading up to the subsequent hearing so as to avoid reaching the merits of the matters before the court, I cannot say that the trial court’s refusal to vacate the June 15th order constitutes any abuse of discretion.

Appellant’s first issue is equally without merit. Appellant attacks the right of the court to rely, in part, upon the letter from the MH/MR Director as a basis for vacating its earlier order. Appellant has not argued, and I believe could not argue, that the trial court would have been without power to take the minor child into custody based upon the dependency petition then pending in the court. See 42 Pa.C.S. §§ 6324, 6325, 6327(e), 6334. By choosing a less restrictive alternative, namely, the removal of discretion in a family therapist, Edward C. Hook, to permit visitation by the father, while leaving the remaining provisions of the PFA stipulated order intact, the court exercised exceedingly sound discretion, in my view.

No parental agreement can permanently determine the custody of children. The best interests of the child determine custody, and a court with proper jurisdiction has power to re-determine those best interests where circumstances change. Hattoum v. Hattoum, 295 Pa.Super. 169, 178, 441 A.2d 403, 407 (1982), citing Commonwealth ex rel. Viehdeffer v. Viehdeffer, 235 Pa.Super. 447, 344 A.2d 613 (1975) and Commonwealth ex rel. Heller v. Yellin, 174 Pa.Super. 292, 101 A.2d 452 (1953). This, of course, is not a custody case. But it can be said with equal force that once the parties have placed the issue of the best interests of a child before the court under the Protection From Abuse Act, no subsequent parental agreement can permanently determine when, and under what circumstances, parental visitation shall occur.

Appellant does not question the authority of the court to refuse to approve stipulation or consent agreements in Protection From Abuse actions. Brief for Appellant, at 10. Yet Appellant would urge us to reverse an order which did nothing more than declare that the May 25th stipulation would have been refused, had the court had access to material information which was within the court’s files at the time the May 25th order had been entered, but incorrectly docketed to the juvenile file rather than the file involving protection of the minor from abuse.

I find nothing in Appellant’s brief dealing with the prejudice or harm done to the minor, Dawn R., by virtue of the court's withdrawing visitation while leaving the minor in the home with her mother and sister. Nor does the record contain any suggestion that Appellant would have been prevented from placing before the court, in accordance with proper pleadings, any evidence or testimony to support the reinstatement of properly supervised home visitation.

Finally, I note that, in accordance with the Act, both the March 15th order and the May 25th order were to remain in effect only until February 15, 1985. See 35 P.S. § 10186(b).

I can find no abuse of discretion in the trial court’s refusal to vacate its order of June 15, 1984. The order properly took into account the best interests of the minor child, Dawn R. and did not foreclose further action by either the original petitioner, Nancy R., or the defendant, Donnie D.R.

Accordingly, I dissent.

      . § 10185. Hearings
      (a) Within ten days of the filing of a petition under this act a hearing shall be held at which the plaintiff must prove the allegation of abuse by a preponderance of the evidence. The court shall advise the defendant of his right to be represented by counsel.
      (b) The court may enter such temporary orders as it deems necessary to protect the plaintiff or minor children from abuse, upon good cause shown in an ex parte proceeding. Immediate and present danger of abuse to the plaintiff or minor children shall constitute good cause for purposes of this section.
      (c) If a hearing under subsection (a) is continued, the court may make or extend such temporary orders under subsection (b) as it deems necessary.

      . Act of October 7, 1976, P.L. 1090, No. 218, as amended June 23, 1978, P.L. 513, No. 81, § 1, 35 P.S. § 10181 et seq.

      . Act of July 9, 1976, P.L. 817, No. 143, § 101 et seq., 50 P.S. § 7101 et seq.

      . We note that, on July 30, 1984, counsel for Donnie D.R. filed exceptions to the order of July 17, 1984. On July 31st, a hearing on the exceptions was set for August 29th. However, the filing of the notice of appeal by Nancy R. on August 2nd operated to render further action on the exceptions moot. We further note that the only brief submitted to this court is that filed by counsel for Nancy R. Counsel for Donnie D.R. indicated, by letter, his lack of intention to file a brief, asserting that Donnie D.R.’s position "is identical to the position of Don R[.].’’ [sic]. Counsel for Dawn R., the minor, also filed notice that no brief would be filed by him.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    509 A.2d 345
    COMMONWEALTH of Pennsylvania, Appellant, v. Larry EASTERLING.
    Superior Court of Pennsylvania.
    Submitted Feb. 13, 1986.
    Filed May 12, 1986.

      Eric B. Henson, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.
    John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.
    Before MONTEMURO, HOFFMAN and CERCONE, JJ.
   HOFFMAN, Judge:

This is the Commonwealth’s appeal from the judgment of sentence imposed on appellee. The Commonwealth contends that the sentence imposed is unreasonable because the lower court erred in (1) sentencing appellee outside the sentencing guidelines, 204 Pa.Code §§ 303.1-303.9, reprinted following 42 Pa.C.S.A. § 9721, when there were no mitigating circumstances to support the deviation from them; (2) sentencing appellee so as to retain jurisdiction over him in order that another judge could place him in a drug and alcohol treatment program; and (3) failing to consider the totality of the circumstances in sentencing appellee. We agree that the sentence is unreasonable and, accordingly, vacate the sentence and remand this case for resentencing.

On August 22, 1984, appellee was arrested and charged with several offenses in connection with an August 15, 1984, burglary of a Philadelphia apartment. He entered an open plea of guilty to burglary and criminal conspiracy charges before the court below on February 26, 1985. On April 17, 1985, the court sentenced appellee to concurrent terms of eleven-and-one-half-to-twenty-three months imprisonment, both to run concurrently to a sentence appellee then was serving. The Commonwealth filed a petition to modify sentence on April 24. See Commonwealth v. Anderson, 304 Pa.Superior Ct. 476, 450 A.2d 1011 (1982) (Commonwealth must comply with Pa.R.Crim.P. 1410, requiring the filing of a motion to modify sentence within ten days after the imposition of sentence, before obtaining appellate review of a sentence). The petition was denied on the same day, and this appeal followed.

Initially, we note that the Commonwealth does not have an appeal as of right of the discretionary aspects of a defendant’s sentence for a felony or misdemeanor. Section 9781 of the Judicial Code, 42 Pa.C.S.A. §§ 101-9781, provides in pertinent part as follows:

The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under ... chapter [97, of the Sentencing Code, §§ 9701-9781],

42 Pa.C.S.A. § 9781(b). A notice of appeal, see Pa.R.A.P. 902, operates as a “petition for allowance of appeal.” Commonwealth v. Drumgoole, 341 Pa.Superior Ct. 468, 472-73, 491 A.2d 1352, 1353-54 (1985) (citing Pa.R.A.P. 341 note, 902 note). Accordingly, pursuant to § 9781(b), we “must determine whether or not there is a substantial question that the sentence imposed is not appropriate under the [sentencing [guidelines.” Id., 341 Pa.Superior Ct. at 473, 491 A.2d at 1354.

This Court has allowed Commonwealth appeals under § 9781(b) and its nearly identical predecessor that governed the interim sentencing guidelines, see Act of Nov. 26, 1978, P.L. 1316, No. 319, § 5(d) (the Act), reprinted at 42 Pa.C. S.A. § 2155 historical note, and following id. § 9721, but without discussion as to what constitutes a “substantial question.” See Commonwealth v. Dixon, 344 Pa.Superior Ct. 293, 295, 496 A.2d 802, 802-03 (1985) (the Commonwealth’s petition for appeal is granted because, “[a]s will appear from the ensuing discussion,” the record raises a substantial question); Commonwealth v. Drumgoole, supra, 341 Pa.Superior Ct. at 473, 491 A.2d at 1354 (“[o]ur review of the record convinces us that a substantial question exists in this case”); Commonwealth v. Nixon, 311 Pa.Superior Ct. 450, 452 n. 1, 457 A.2d 972, 973 n. 1 (1983) (“we shall allow an appeal”); Commonwealth v. Love, 295 Pa.Superior Ct. 276, 278, 441 A.2d 1230, 1231 (1982), allocatur denied (“the Commonwealth brought this appeal which we allow”). In Commonwealth v. Frazier, 347 Pa.Superior Ct. 64, 66, 500 A.2d 158, 159 (1985), and Commonwealth v. Hutchinson, 343 Pa.Superior Ct. 596, 597-98, 495 A.2d 956, 957-58 (1985), we noted that the Commonwealth filed its appeals pursuant to § 9781(b), but we nowhere stated that we were accepting the appeals, thus implicitly suggesting that the appeals were taken as of right. See also Commonwealth v. Tomasso, 311 Pa.Superior Ct. 103, 457 A.2d 514 (1983), aff'd, 506 Pa. 344, 485 A.2d 395 (1984) (Commonwealth appeal of sentence imposed under the interim guidelines as unreasonable; no discussion of whether the appeal was properly before the Court). As the plain language of § 9781(b) indicates, however, appeals from the discretionary aspects of a sentence are to be granted at our discretion and not as of right.

Section 9781(b) provides for our discretionary review of sentences imposed pursuant to the sentencing guidelines. By considering the rationale behind their enactment, see 1 Pa.C.S.A. § 1921(c)(1), (8), (4), and reading § 9781(c) in conjunction with § 9781(b), see Wilson v. Central Penn Industries, Inc., 306 Pa.Superior Ct. 146, 150, 452 A.2d 257, 259 (1982) (sections of a statute are to be read together and construed with reference to the entire statute), we believe that we can determine what our Legislature intended to be a “substantial question.”

The sentencing guidelines were created with a view towards ending the “wide disparity in the sentencing of defendants charged with the same crime.” Commonwealth v. Hutchinson, supra 343 Pa.Superior Ct. at 598, 495 A.2d at 958. Consistent with this view, we are empowered to vacate a judgment of sentence and remand for resentencing if we find that:

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

42 Pa.C.S.A. § 9781(c). Accordingly, to achieve the goal of uniform sentencing, we believe that, if a brief review of the record convinces us that one of the above three circumstances is before us, then there is a substantial question that the sentence imposed is inappropriate and our appellate review is justified. See Commonwealth v. Anderson, supra 304 Pa.Superior Ct. at 482, 450 A.2d at 1014 (the “guidelines will be virtually meaningless and uniformity will not be achieved without a right of appellate review”).

Here, it is undisputed that appellee’s sentence is outside the guideline ranges. Appellee has a prior record score of six, see 204 Pa.Code § 303.7, and an offense gravity score of six, see id. § 303.8 (“Burglary of a structure adapted for overnight accommodation in which at the time of the offense no person is present”). The sentencing guideline ranges for these scores are as follows: thirty-three-to-forty-nine months (minimum range), forty-nine-to-sixty-one months (aggravated minimum range), twenty-five-to-thirty-three months (mitigated minimum range). Id. § 303.9. Thus, appellee’s minimum sentence of eleven-and-one-half months is about one-third of the lowest suggested minimum sentence and less than one-half of the lowest suggested mitigated minimum sentence. This substantial deviation from the guidelines, coupled with the Commonwealth’s contentions that the lower court found no mitigating circumstances, relied on an inadequate reason in so sentencing, and failed to consider the totality of the circumstances in sentencing appellee, contentions we do not find meritless on their face, convinces us that there is a substantial question that the sentence imposed in this case is not appropriate. We shall, therefore, accept the Commonwealth’s appeal.

Because appellee’s sentence is outside the guideline ranges, we must determine whether it is “unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). In so doing, we must review the record with regard to:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence report.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.

Id. § 9781(d); see also Commonwealth v. Drumgoole, supra 341 Pa.Superior Ct. at 473, 491 A.2d at 1354. While the sentencing court “is not bound hard and fast by the [guidelines,” Commonwealth v. Frazier, supra 347 Pa.Superior Ct. at 71, 500 A.2d at 161, they “channel sentencing discretion and focus appellate review which is available to both parties, on the reasonableness of deviations from the presumptively appropriate range of sentences,” and “only in exceptional cases and for sufficient reasons may a court deviate from the guidelines.” Commonwealth v. Hutchinson, supra 343 Pa.Superior Ct. at 599, 495 A.2d at 958. For the following reasons, we find that the sentencing court did not have sufficient reason to deviate from the guidelines.

Essentially, the Commonwealth contends that the lower court’s sole reason for sentencing appellee outside the sentencing guidelines is inadequate to justify such a wide departure from them. After reviewing the record, we agree that the court below gave but one reason in support of its sentence. In imposing a maximum sentence of less than two years (twenty-three months) on appellee, the court sought to retain jurisdictional control over him because a fellow judge, who had sentenced appellee in a previous case to concurrent terms of eleven-and-one-half-to-twenty-three months imprisonment for attempted burglary and possession of an instrument of crime wanted to place him in the “Genesis II” program, a nine-to-twelve month inpatient drug and alcohol treatment program. See generally 61 P.S. § 331.26 (“Paroles from imprisonment for less than a maximum period of two years shall be granted by the sentencing court____”). As the court stated at the sentencing hearing:

I would be willing to sentence slightly outside the guidelines only so that I can maintain some jurisdictional control. [A prior record score of] 6 and [an offense gravity score of] 6 indicate — we are talking about 2 years state time____ But I think county time is appropriate, so that at whatever point you would be released you would be under my jurisdiction. But that’s the only give and take I see here.
‡ }J{ Jj{ }jt >¡C !H
That’s it. I’d like to keep jurisdiction on this case, and so that’s really the only reason.

N.T. April 17, 1985 at 9, 10 (emphasis added). When the court denied the Commonwealth’s petition to modify sentence, it noted that appellee’s sentence was “set out of courtesy to [my fellow judge] who wished to retain jurisdiction in the county for possible drug [and] alcohol parole.” See Lower Court Order dated April 24, 1985. Accordingly, we find that the lower court’s sentence was based solely upon the court’s desire to retain jurisdiction over appellee for the benefit of its colleague. 42 Pa.C.S.A. § 9781(d)(3). Considering that finding in conjunction with the remaining § 9781(d) factors, we believe that appellee’s sentence is an unreasonable one.

With regard to the nature and circumstances of the offense and the history and characteristics of appellee, id. § 9781(d)(1), we note that he has a lengthy juvenile record (five adjudications of delinquency), nine previous adult property convictions, and two adult armed robbery convictions. This prior record was utilized, of course, in computing appellee’s prior record score, and, as we are to consider the guideline ranges in determining whether the sentence imposed is unreasonable, id. § 9781(d)(4), we have already noted that appellee’s minimum sentence is less than half of the minimum permitted under even the mitigated range. The lower court, however, did not find any mitigating circumstances justifying the departure from the guidelines. In fact, the court found exactly the opposite:

We will just consider any petitions for parole or whatever if they are filed, but I will be honest with you, I don’t see anything here that indicates he is ready for Genesis II. He’s had plenty of chances, he’s been in New Jersey. Then he comes to Philadelphia and does the same thing.
His problems didn’t start in the 1970’s. His problem started at age 15, September, 1965, and his has been arrested consistently almost every six months since then. Not arrested. Convicted. I don’t consider arrests. If we just count convictions as an adult, he’s been convicted 12 times. I don’t see anything mitigating here. That’s really how I look at it.
[My fellow judge], of course, is another judge, and she might see something mitigating, but whatever she saw has not been presented to me today____

N.T. April 17, 1985 at 10-11 (emphasis added). Indeed, the court also could have noted that, while appellee was evidently out on bail in the previous case, he committed the instant crimes.

Nor can we find anything in the lower court’s opportunity to observe appellee or in the presentence investigation report that would support the court’s departure from the guidelines. The court noted that appellee was “less than candid” with his counsel concerning his prior record. Id. at 12. The presentence investigation report (at 6) stated the following:

The Subject’s history of criminality continues to go unabated despite past Court actions. His past anti-social behavior has more than likely been adversely affected by his alcohol and drug abuse. His prognosis at this time is seemingly poor and will undoubtedly continue that way until he becomes properly motivated to overcome his alcohol and drug abuse.

Similarly, appellee’s mental health evaluation noted (at 2) that “[h]e is not particularly motivated to improve his behavior patterns and therefore his prognosis is poor.” Appellee correctly points out that “it was not the intention of the Legislature to adopt the [guidelines as a way to preclude judicial discretion____” Commonwealth v. Frazier, supra 347 Pa.Superior Ct. at 70, 500 A.2d at 161. Here, however, the sentencing court, in effect, exercised no discretion by imposing a sentence solely out of courtesy to a fellow judge. While in another case this may perhaps be a reasonable result, our review of the record here convinces us that the court did not agree with the recommendations of the previous court, and we find, therefore, that the instant sentence is unreasonable. Pursuant to § 9781(c), then, we vacate the judgment of sentence and remand this case for resentencing.

Judgment of sentence is vacated and case is remanded for resentencing. Jurisdiction is relinquished.

      . In its statement of jurisdiction, the Commonwealth simply states that our jurisdiction is invoked pursuant to 42 Pa.C.S.A. § 742 (appeals from final orders of the courts of common pleas) and § 9781(b). Brief for the Commonwealth at 1. "Section 742, however, does not grant a right of appeal to any party but merely provides for the exclusive appellate jurisdiction of this court from final orders when a right of appeal exists.” Commonwealth v. Drumgoole, 341 Pa.Superior Ct. 468, 471, 491 A.2d 1352, 1353 (1985). Moreover, neither the Commonwealth nor appellee argue whether there is a substantial question that the sentence imposed here is inappropriate and thus whether this is a case justifying our allowance of the appeal.

      . We note that “[n]o appeal of the discretionary aspects of the sentence shall be permitted beyond the appellate court that has initial jurisdiction for such appeals.” 42 Pa.C.S.A. § 9781(f) (same provision under the interim sentencing guidelines, § 5(h) of the Act). See Commonwealth v. Tomasso, 506 Pa. 344, 346, 485 A.2d 395, 396 (1984); Commonwealth v. Anderson, 304 Pa.Superior Ct. 476, 482 n. 5, 450 A.2d 1011, 1014 n. 5 (1982).

      . Of course, if we accept review, we will not necessarily vacate the sentence. Upon a full review of the record, we may, for example, find that a sentence imposed outside the guidelines was not “unreasonable," 42 Pa.C.S.A. § 9781(c)(3), and, therefore, we would affirm the sentence imposed by the sentencing court, see id. § 9781(c) (if appellate court does not find one of the three instances where it is to vacate the sentence, it “shall affirm the sentence imposed by the sentencing court”). See, e.g., Commonwealth v. Frazier, 347 Pa.Superior Ct. 64, 500 A.2d 158 (1985) (sentence outside of the guideline ranges affirmed).

      . Of the seven cases that we cited above in which the Commonwealth appealed from judgments of sentence, in six the trial court’s sentences were outside the guidelines, and the Commonwealth contended that the sentences were unreasonable. See Commonwealth v. Frazier, supra; Commonwealth v. Dixon, supra; Commonwealth v. Hutchinson, supra; Commonwealth v. Drumgoole, supra; Commonwealth v. Tomasso, supra (interim sentencing guidelines); Commonwealth v. Nixon, supra (same). In the seventh case, Commonwealth v. Love, supra, although the sentence was also outside the (interim) sentencing guidelines, the Commonwealth only contended that the sentencing court erred in not providing a statement of reasons why it so sentenced the defendant. Because we found that the provision in question that provided for such a statement, § 5(b) of the Act (under the present guidelines, see 42 Pa.C.S.A. § 9721(b); 204 Pa.Code § 303.-1(h)), was not discretionary, we remanded for the issuance of a statement of reasons. Query whether it was necessary for the Love court to accept the Commonwealth’s appeal under § 5(d) of the Act where the Commonwealth did not appeal from the discretionary aspects of the sentence.

      . We thus disagree with appellee’s conclusions that the court’s sentence "flowed from a studied consideration of appropriate factors” and that the court "explicitly purported to, and appellee contends that it succeeded in, weighing and balancing the need for protection of the public, the gravity of the offense, and the rehabilitative needs of appellee.” Brief for Appellee at 8 (citation omitted).

      . In its opinion the lower court states the following:
      In this case, implicit in this Court’s reasoning was that the particular drug and alcohol treatment needs of [appellee] warranted some consideration. Here, counsel and [appellee, N.T. April 17, 1985 at 4-6,] confirmed that a long term program had been explored and that another judge was very interested in ordering [appellee] into that program. The effect of this Court’s retention of jurisdiction in the county was to permit two courts to fashion a sentence tailored to [appellee’s] individual needs.
      Lower Court Opinion at 3-4. As is clear from the above-cited notes of testimony, however, the court did not believe that appellee’s drug and alcohol problem was appropriate for treatment in the Genesis II program following a county sentence.

      . In mid-1984, the court’s fellow judge ordered that appellee enter an inpatient long-term drug and alcohol program. Appellee stated both dturing the presentence investigation and at the sentencing hearing in the instant case that he stopped going after about two weeks because he was told that the program lasted only twenty-eight days and that he would have to leave to find another one. See N.T. April 17, 1985 at 4-6. One of the court’s investigators stated that he could verify that appellee had contacted another program and was not accepted, id. at 6, and appellee’s counsel stated that "there was some kind of confusion with the other program," id. We note that there is no suggestion in the record that appellee would be unable to obtain treatment either during or after his serving a state sentence. See, e.g., Mental Health Evaluation at 2 ("Regardless of the outcome, eventually, after release, he should be transferred from a state of incarceration to an inpatient alcohol abuse program----’’).


author: JOHNSON, Judge:

text:
    509 A.2d 351
    COMMONWEALTH of Pennsylvania v. Thelma STANTZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed May 7, 1986.

      David J. Kaltenbaugh, Assistant Public Defender, Johns-town, for appellant.
    Dennis M. McGlynn, Assistant District Attorney, Johns-town, for Commonwealth, appellee.
    Before BECK, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

Appellant, Thelma Stantz, takes this appeal from the judgment of sentence of life imprisonment, entered February 22, 1985, for the first degree murder of Sara “Tootie” Bartlebaugh. Appellant was found guilty by Judge Joseph F. O’Kicki, sitting without a jury, of causing the death of the fifteen year-old victim, a part-time babysitter and paramour of appellant’s husband, by inflicting multiple blows to the skull with a two-by-four.

Appellant raises the following issues for our review:

1. ) APPELLANT WAS DENIED A FAIR TRIAL AND ADEQUATE REPRESENTATION BY THE TRIAL COURT’S REFUSAL, WITHOUT A HEARING, OF HER MOTION REQUESTING ACCESS TO MATERIAL WITNESSES.
2. ) THE TRIAL COURT ERRED BY PERMITTING THE DISTRICT ATTORNEY TO RENEGE ON A BARGAIN ENTERED INTO PRIOR TO TRIAL IN WHICH APPELLANT AGREED TO A NON-JURY TRIAL IF THE DISTRICT ATTORNEY WOULD SEEK A VERDICT OF GUILT NO HIGHER THAN THIRD DEGREE MURDER, AND BY PERMITTING PREJUDICIAL REMARKS BY THE DISTRICT ATTORNEY ON SUMMATION.
3. ) THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING, OVER OBJECTIONS, DURING THE DISTRICT ATTORNEY’S CROSS-EXAMINATION OF APPELLANT:
(a) A QUESTION WITHOUT PROPER FOUNDATION;
(b) A QUESTION AS TO WHY APPELLANT’S COUNSEL DID NOT BRING FORTH EVIDENCE ON DIRECT EXAMINATION;
(c) A QUESTION THAT HAD BEEN ASKED AND ANSWERED.
4. ) EVIDENCE OF APPELLANT’S INTOXICATION WAS SUFFICIENT UNDER 18 Pa.C.S. § 308 TO REDUCE GUILT TO THIRD DEGREE MURDER BECAUSE APPELLANT WAS INCAPABLE OF FORMING THE SPECIFIC INTENT FOR FIRST DEGREE MURDER.
5. ) THE FAILURE BY THE DISTRICT ATTORNEY TO REBUT APPELLANT’S TESTIMONY OF HER HUSBAND’S GUILT VITIATES THE VERDICT.

Finding appellant’s claims to be lacking in merit, we affirm.

The events which resulted in the death of the victim occurred during the weekend of September - 9, 1983. The record indicates that on that date, appellant picked Tootie Bartlebaugh up at her home after school for weekend babysitting. On Saturday, September 10, appellant, her three children, and the victim made at least one trip to a local garbage dump to collect aluminum cans. According to appellant’s statement of October 1, 1984, appellant’s daughter discovered a letter while en route to the dump, written by Tootie to appellant’s husband. Appellant, who had been aware of the victim’s relationship with her husband for some time, became enraged. According to appellant’s statement, while she and the victim were looking for cans, Tootie commented that the dump may have been the place where she had become pregnant by appellant’s husband. Appellant knew of the pregnancy and subsequent miscarriage, but at this point she “picked up a board and I swung the board and hit her, ... I think I hit her twice, I’m not sure. Tootie was laying on the ground, she was crying. I left her there, and I went to the car and told the kids we would drive around for awhile and come back and pick her up, but I never went back ...”

Appellant first argues that the trial court erred by denying her Motion to Allow Visitation with her three children. Appellant contends that her due process rights were violated because her motion was refused without a hearing, and that she was denied access to material prosecution witnesses.

It is. well settled that the grant or denial of a motion to secure witnesses is a matter within the sound discretion of the trial court. Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979), Commonwealth v. Stanton, 294 Pa.Super. 516, 525-26 n. 10, 440 A.2d 585, 590 n. 10 (1982). Appellant’s Motion to Allow Visitation states simply that appellant’s three children are in the custody of Cambria County Children and Youth Services, that appellant wishes to visit with them prior to Christmas, and that appellant’s attorneys wish to interview the children who saw appellant and the victim prior to the crime.

While an accused’s right “to have compulsory process for obtaining witnesses in his favor” is guaranteed by Article I, Section 9 of the Pennsylvania Constitution, “implicit in such a right is the requirement that the defendant establish that the person to be produced has relevant or material testimony on the issues in question.” Commonwealth v. Coffey, 230 Pa.Super. 49, 51, 331 A.2d 829, 831 (1974). Under both our state and federal constitutions, the “right to compulsory process does not grant to a defendant ‘the right to secure the attendance and testimony of any and all witnesses: it guarantees him “compulsory process for obtaining witnesses in his favor.” United States v. Valenzuela-Bernal, [458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193, 1202 (1982)] (emphasis in original), quoting U.S. Const, amend. VI.” Commonwealth v. Lahoud, 339 Pa.Super. 59, 65, 488 A.2d 307, 310 (1985).

In Commonwealth v. Lahoud, id., the desired witness was absent. A panel of this Court found, however, that appellant’s rights were not violated for failure to secure a witness where the record failed to demonstrate that the witness was material to the defense or had information favorable to appellant. Id., 339 Pa.Superior Ct. at 66, 488 A.2d at 311. The Court went on to find that “[i]mplicit in the requirement of materiality is a concern that the absent witness have information which might have affected the outcome of the trial____ Appellant was not relieved of the burden of showing that the missing witness would have given favorable testimony merely because the defense did not have prior access to the witness.” Id., 339 Pa.Superior Ct. at 67, 488 A.2d at 311. An even stronger case exists herein, where appellant’s daughter Tammy testified at trial and hence was not a missing witness.

Based upon the limited information set forth in appellant’s motion, we find that the trial court did not abuse its discretion in refusing a hearing on appellant’s motion, and by ultimately denying the request by order dated December 21, 1984. Moreover, appellant’s attorneys were provided with copies of the children’s statements, and had the opportunity to cross-examine appellant’s oldest daughter, Tammy, who witnessed the incident. Appellant’s argument that the inability to interview Tammy before trial restricted cross-examination to the subjects set forth in her statement is specious: cross-examination of an adverse witness is limited to matters brought out on direct examination. Commonwealth v. Lore, 338 Pa.Super. 42, 57, 487 A.2d 841, 849 (1984). The latitude of the scope of cross-examination is a matter vested within the sound discretion of the trial court. Id. “An abuse of discretion will not be found if the defendant’s right to full and effective cross-examination is not abridged, even if the defense is not permitted to cross-examine in the manner it desires.” Commonwealth v. Rhem, 283 Pa.Super. 565, 575, 424 A.2d 1345, 1350 (1980).

Appellant has not indicated what she sought to bring forth on cross-examination and we cannot determine whether the trial court could have, or should have, permitted a wider latitude of cross-examination. Providing the defense with a copy of the witness’ statement offered an adequate opportunity to prepare an effective cross-examination, and appellant failed to set forth any compelling reasons before the trial court, or before this Court, to convince us that interviewing her children was a necessity.

Appellant’s second argument is that she entered into an agreement with the prosecutor to waive a jury trial in return for a stipulation that the Commonwealth would seek a verdict no higher than murder in the third degree. Appellant contends that the trial court erred by permitting the prosecutor to renege on this agreement, and by allowing prejudicial remarks by the assistant district attorney during his summation. The record, however, simply does not support the allegation that an agreement was entered, and the prosecutor’s comments do not rise to a level which would require that a new trial be granted.

During the pre-trial hearing on appellant’s discovery motions, the following exchange occurred:

THE COURT: The Court after having talked with Thelma Stantz believes that she knowingly and intelligently has waived her right to a jury trial. We will accept her waiver and we will then set the matter for trial on February 20, 1985 at 10:00 a.m. and February 21, 1985; and, of course, if necessary, February 22.
At that time, all parties may be present and shall present their respective witnesses.
MR. LOVETTE [DEFENSE COUNSEL]: Judge, so that the record is clear, I guess we could call this a stipulation; but what we have stipulated to is that the Commonwealth intends to present evidence which will show, they hope, in their favor that the degree of guilt should be third degree in this matter.
The defense on behalf of Mrs. Stantz, intends to show or present evidence which will hopefully show a degree of guilt of voluntary manslaughter. So that it is clear on the record, that is the avenue of the evidence that we are going to present and the avenue of the evidence that the Commonwealth is going to present.
THE COURT: Suppose it rises higher than third degree? Are you saying the Court is bound to make a finding of third degree murder and not first degree?
MR. LOVETTE: We are not saying that, and we have not stipulated to that; but we believe, on the defense side, that it could rise no higher than third. However, the Commonwealth, I think, believes on their side that it is third. However, if it does rise higher, it rises higher.

Similarly, during a hearing in which a video tape of the scene was viewed and bond was discussed, the court again indicated that it was not bound to any degree of guilt:

MR. LOVETTE: ... Judge, if you will recall, the Commonwealth has indicated that they are going to attempt to prove third degree murder and the defense has indicated that they are going to attempt to show it rises no higher than voluntary manslaughter. In fact, those are the proposals by the Commonwealth and the defense.
We think that the bond ought to be set appropriately and not as a bond for a first degree murder charge. There is no bond set now. We would recommend, I think, somewhere in the neighborhood of $20,000.00 certainly ought to assure her appearance.
THE COURT: Well, the Court, of course, is not bound by both perimeters of what either counsel tends to prove or what the District Attorney or what the defense counsel thinks the District Attorney may prove.

And finally, in denying appellant’s motion for bail, the court stated:

Her trial, which is essentially a degree of guilt hearing, is set within 30 days. Some counsel in the case indicate that the level of culpability is murder in the third degree; other counsel view the facts as rising only to the voluntary manslaughter level.
In addition, in consideration of the fact that this Court is not bound to any proposed degree of guilt and thus the crime of homicide may rise to the highest degree, it is hereby ordered and decreed that Defendant’s Motion to Set Bail is denied.

Our review of the record convinces us that no agreement was entered whereby the Commonwealth stipulated to seek a verdict no higher than third degree murder; nor did the trial court accept any such proposition. The portion of the record cited by appellant, N.T., 2/20/85 at 7, does not support her position: defense attorney Kaltenbaugh himself states, immediately preceding, “I think it is clear from the record that the Court can find any degree of guilt it wishes.” N.T., 2/20/85 at 6. The trial court could not err by permitting the prosecution to renege„on a non-existent agreement.

Similarly, the challenged statements of the assistant district attorney during closing argument do not warrant the granting of a new trial. The comments, “That is such a morbid, sick thing to do” and “Next lie, ...” must be viewed in light of the principle that not every intemperate or uncalled for remark requires a new trial. Commonwealth v. Jarvis, 482 Pa. 598, 394 A.2d 483 (1978); Commonwealth v. Youngkin, 285 Pa.Super. 417, 427 A.2d 1356 (1981). Reversible error exists only where the cumulative effect of any improper remarks so prejudices the jury as to prevent a fair trial. Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968); Commonwealth v. Youngkin, supra. These safeguards have been established to prevent the jury from “forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Simon, supra, 432 Pa. at 394, 248 A.2d at 292. These concerns are lessened, if not eliminated, where, as here, the trial judge sat as finder of fact.

Third, appellant challenges three matters raised while she was cross-examined by the assistant district attorney. We note at the outset that the trial court’s rulings on the parameters of cross-examination may not be reversed absent a clear abuse of discretion or error of law. Commonwealth v. Greene, 469 Pa. 399, 366 A.2d 234 (1976).

The prosecutor asked appellant, “Didn’t you also decide that you would do something so that Ben [appellant’s husband] wouldn’t bother her [the victim]?” Appellant’s attorney objected, stating, “That question is totally out of the blue.” Appellant now argues that the question had no basis in the direct examination, and no foundation was laid in prior cross-examination.

The trial court overruled the objection because the witness “is a party and a very wide range of permissible questions is permitted.” Indeed, “the right of cross-examination extends beyond the subjects testified to in direct testimony and includes the right to examine on any facts tending to refute inferences or deductions arising from matters testified to on direct.” Commonwealth v. Lopinson, 427 Pa. 284, 300, 234 A.2d 522, 562 (1967) (vacated on other grounds). Moreover, immediately preceding the challenged question, appellant stated that she had discussed with the victim’s mother the fact that Tootie no longer wanted to see Ben, and the mother had responded that “she would make sure that Ben didn’t bother her.” Not only did the prosecutor’s follow-up question adequately arise from matters raised on direct examination, but appellant’s previous answer laid the foundation on cross-examination as well.

Appellant testified further during cross-examination that she discussed the incidents with her husband Ben, he went out to the dump to get Tootie, and when he returned home, “He said he killed her.” The assistant district attorney then asked, “Now, Thelma, why is it that you didn’t testify to that earlier?” She responded that she was not asked about that earlier. The prosecutor then asked, “Why didn’t you testify to that when your own lawyer was asking you?” Appellant’s counsel objected, and now argues that this question intruded upon the attorney-client privilege. We cannot agree. After the trial court overruled the objection, appellant responded that she had not said anything before, “Because my attorney did not get into that matter whereas you did.” We do not see how this exchange infringed upon the attorney-client privilege, nor do we find any apparent injury resulting from the trial court’s ruling in permitting the question. See Commonwealth v. Dombrauskas, 274 Pa.Super. 452, 418 A.2d 493 (1980); Commonwealth v. Donnelly, 233 Pa.Super. 396, 336 A.2d 632 (1975).

A series of questions were also asked regarding the activities of appellant’s husband. It is contended that these questions were repetitive, and the trial court erred by allowing, over objections, a question that had been asked and answered. As stated previously, “the scope of cross-examination is largely within the sound discretion of the trial judge, and even if a ruling is erroneous, the error is not grounds for reversal unless it results in apparent injury.” Commonwealth v. Dombrauskas, supra, 274 Pa.Super. at 463, 418 A.2d at 499. The trial court did not err by permitting the assistant district attorney to pursue this line of questioning, and appellant has not demonstrated any injury from these, or any other, challenged questions.

Appellant’s fourth contention is that sufficient evidence was advanced of her intoxication at the time of the criminal incident such that she was rendered incapable of forming the specific intent necessary to be found guilty of first degree murder. As provided by 18 Pa.C.S. § 308, evidence of intoxication may be offered when it is relevant to reduce murder from a higher to a lower degree. Appellant argues, therefore, that her intoxication mandated a verdict of no higher than third degree murder.

Our supreme court stated, in Commonwealth v. Fairell, 476 Pa. 128, 133-34, 381 A.2d 1258, 1260 (1977), “Evidence of intoxication, if believed, may operate to negate the intent necessary for conviction of murder in the first degree. [18 Pa.C.S. § 308] Such evidence is submitted for the consideration of the factfinder.” In the case at bar, it was for the trial court, sitting as finder of fact, to determine whether the evidence submitted by appellant was convincing. The trial court stated in its Opinion:

The Court must balance the defendant’s statements regarding excessive drinking against her conduct of September 9 and September 10. She possessed selective, but vivid recollection of the number of drinks, kind of drinks, size of drinks, and the period of time that she did do the drinking. She. had selective recollection of the details of conversations that she had with the victim, Tootie Bartlebaugh, at breakfast, at lunch, at the roadway stop along Route 22, and at the dump site where the attack took place. Her selective recollection is very vivid and negates the affect of alcoholism.
It is noteworthy to the Court, that while she engaged in said drinking activity, she had driven her car through the City of Johnstown, into Richland Township, back to the City of Johnstown, into the Yintondale area and back several times. Such driving without incident, again is a factor that negates the affect of alcoholism.
For an employer to ask her to work, implies to the Court that her alcoholic condition was such that it was minimal and that she was able to perform her duties without problem or incident to the patrons at the Jockey Club.
It is evident to the Court that she engaged in the plan of deception immediately after the incident. Her conduct in going to the Bartlebaugh home and informing them that Tootie had run away is the product of a diabolical mind and not the product of an alcoholic mind.
On subsequent occasions, she expressed stories of having seen the victim at Sheetz stores in Johnstown, and in the Central Park area in Johnstown.
It further is the belief of this Court, that if she had consumed all the alcohol that she maintains she did, she would not be able to stand up let alone walk or drive a car. We do not believe she had engaged in the excessive drinking the night before the incident or on the day of the incident.

We will not disturb Judge O’Kicki’s sound and well-reasoned finding of fact on this point.

Finally, as to appellant’s fifth issue regarding the Commonwealth’s failure to rebut appellant’s testimony of her husband’s guilt, it is conceded in appellant’s brief that Commonwealth v. Coleman, 455 Pa. 508, 318 A.2d 716 (1974) controls, wherein it was held that the finder of fact has the right to reject part, or all of defendant’s testimony, even if uncontradicted. As such, the absence of rebuttal testimony did not vitiate the guilty verdict of murder in the first degree.

Judgment of sentence affirmed.


author: KELLY, Judge:

text:
    509 A.2d 358
    Carroll R. BOSWELL, Appellee at No. 892 PGH 85, Appellant at No. 943 PGH 85, v. SOUTH CAROLINA INSURANCE COMPANY, and the Travelers Insurance Company, Appellee at No. 943 PGH 85. Appeal of SOUTH CAROLINA INSURANCE COMPANY, Appellant at No. 892 PGH 85.
    Superior Court of Pennsylvania.
    Submitted Jan. 15, 1986.
    Filed May 5, 1986.

      Gilbert M. Coogler, Beaver, for appellant (at 892) and appellee (at 943).
    James Cole, Pittsburgh, for appellant (at 943) and appellee (at 892).
    Philip A. Faix, Jr., Pittsburgh, for Travelers, appellee.
    Before CAVANAUGH, OLSZEWSKI and KELLY, JJ.
   KELLY, Judge:

This appeal is from an Order of the Court of Common Pleas of Allegheny County in an action for recovery of lost wages under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq. (herein after the No-Fault Act) entered in favor of plaintiff/appellee Carroll R. Boswell and defendant/appellee The Travelers Insurance Company (herein after Travelers) and against defendant/appellant South Carolina Insurance Company (herein after appellant). Appellee Boswell seeks recovery from appellant, or in the alternative, from Travelers, of the amount of his wage loss resulting from his accident and injury sustained July 1, 1982 not reimbursed by his employer, the Federal Government. We affirm the lower court order for the reasons discussed below. The facts are as follows:

Carroll R. Boswell suffered injuries on July 1, 1982 in a motor vehicle accident which occurred in Pennsylvania while in the course of his employment as a U.S. Postal employee. Boswell at this time did not own an auto. Plaintiffs son, Carroll L. Boswell (herein after son), a member of the U.S. Army, did own a car, which at the time of the accident was insured by appellant. Appellee’s son was stationed in Korea at the time of the accident; prior to service in Korea, he had been stationed at Fort Bragg, North Carolina.

Son acquired his car while stationed in North Carolina and had purchased insurance for the car, listing the principal garage for the car as the 21st MP Company, Fort Bragg, North Carolina. When the son was reassigned to duty in Korea, he notified Peggy Norton, agent for appellant insurance company, of his new assignment and of the fact that he would be garaging the car at his father’s home in Pittsburgh, Pennsylvania. Appellant’s agents changed the son’s policy to reflect the new principal garage for the car.

A brief trial was held on March 20, 1985, and certain exhibits, depositions, transcripts and stipulations were entered into the record. The Honorable I. Martin Wekselman entered a non-jury verdict in favor of Boswell, and in favor of Travelers and against appellant. Appellant filed timely post-trial motions; Boswell filed timely motions to protect his claim against Travelers.

Section 204 of the No-Fault Act delineates the basic procedure for victims seeking compensation for injuries sustained in the course of their employment. The victim must first seek basic loss benefits from his employer, then from his personal automobile insurance carrier, if any, then from any automobile insurance carriers covering members of his household, and finally from the Pennsylvania Assigned Claims Plan. In this case the state claims plan designated Travelers as its insurance carrier.

Appellee recovered all his medical no-fault benefits from his employer, the U.S. Postal Service, and two-thirds (%) of his wage loss from the U.S. Department of Labor, the federal workmen’s compensation equivalent. Since we find that the appellee was covered by the automobile insurance carrier of a member of his household, we find no need to hold Travelers liable as designated carrier under the Pennsylvania Assigned Claims Plan. Therefore, on this issue, we affirm the trial court decision.

Appellant raises two issues on appeal: whether the trial court erred in refusing to give effect to pertinent sections of the policy “providing coverage for an out-of-state automobile accident only if the accident occurs in a state other than the state in which the covered automobile is principally garaged”; and whether the trial court misapprehended Pennsylvania law by finding appellee’s son was “in residence” in his father’s Pittsburgh home at the time of the accident. (Appellant’s brief at 7).

Appellant argues that the policy issued to appellee Boswell “does not provide coverage in the situation in this case where the accident has occurred outside of the state in which the policy was written, but in the same state (Pennsylvania) where the automobile is principally garaged.... An automobile insured in one state but principally garaged in another state at all times does not present an insurable risk.” (Appellant’s brief at 8.) Appellant refers the court to page three (3) of the insurance policy in support of its contention.

An examination of the policy and the “Out of State Coverage” section beginning on page 3 reveals the following:

OUT OF STATE COVERAGE If an auto accident to which this policy applies occurs in any state or province other than the one in which your covered auto is principally garaged, we will interpret your policy for that accident as follows:
If the state or province has:
1. A financial responsibility or similar law specifying limits of liability for bodily injury or property damage higher than the limit shown in the Declarations, your policy will provide the higher specified limit.
2. A compulsory insurance or similar law requiring a nonresident to maintain insurance whenever the nonresident uses a vehicle in that state or province, your policy will provide at least the required minimum amounts and types of coverage.
No one will be entitled to duplicate payments for the same elements of loss. (N.T. 228a).

There is no exception listed for automobiles garaged outside of the state where the policy was written. In fact, careful perusal shows that no such exception is expressed anywhere within the policy.

Since the language of the contract does not express such a reservation as appellant claims, our concern on review must be limited to a determination of whether Pennsylvania is the state or province where the auto was principally garaged, whether the policy period was still in force at the time of the accident and whether the accident occurred within the United States, Canada or the Virgin Islands. If so, the policy applies, and appellant is liable.

After reviewing the record, we must answer all three questions in the affirmative. The named insured, appellee’s son, gave notice to his insurance agent that there was a change in address of the principal garage of his car. According to uncontroverted testimony the appellant’s agent not only had notice that the car was being relocated to Pittsburgh, Pennsylvania, but orally agreed to the relocation. The record also discloses that the agent had the Declaration Page of the policy changed to reflect the new address for the auto’s principal garage. (N.T. 223a). The agent assured the named insured that the car would continue to be covered until the policy expiration date in April 1983. (N.T. 6/23/83, 43a). Thus, we find evidence to

affirm the trial court finding that the car was principally garaged in Pennsylvania, as agreed to by appellant, that the policy was in effect at the time of the accident in July 1982, and as was stated, infra, that the accident did occur within the United States. As no exceptions exist to bar coverage, we find that appellant insurance company is liable on its policy.

Appellant argues in the alternative that even if we find the policy adequate security for the automobile, we should give full effect to the policy provisions limiting coverage of auto accidents occurring in no-fault jurisdictions. (Appellant’s brief at 9). That provision is contained in the “Out of State Coverage” section, as discussed above. We have already decided that the plain language of the contract when applied to this fact situation discloses the accident did not occur out of the state where the auto was principally garaged, but occurred in Pennsylvania where the auto was garaged. Therefore, we find appellant’s argument to be without merit. (See, Talley by Cronin, Jr. v. Commercial Union Insurance Company, 587 F.Supp. 976, aff'd 760 F.2d 261 (E.D.Pa.1984), (out of state coverage provision does not apply where victim, car’s principal garage and accident all occur in Pennsylvania).

Appellant’s second issue on appeal is whether appellee’s son, Carroll L. Boswell, was “in residence” in Pennsylvania, so as to provide coverage to his father under the terms of the Act.

The No-Fault Act, 40 P.S. § 1009.103, defines “insured” as follows:

(A) an individual identified by name as an insured in a contract of basic loss insurance complying with this act; and
(B) a spouse or other relative of a named insured, and a minor in the custody of a relative of a named insured if
(ii) in residence in the same household with a named insured.
An individual is in residence in the same household if he usually makes his home in the same family unit, even though he temporarily lives elsewhere.

Thus, the appellee’s son, as the named insured, provides coverage for his father if appellee is a relative in residence in the same household with his son.

“Household” has been defined as “those who dwell under the same roof and compose a family.” Drake v. Donegal Mutual Insurance Co., 422 F.Supp. 272 (W.D.Pa.1976), relying on Webster’s Dictionary, 2d ed. Similarly, the court in Colosimo v. State Automobile Mutual Insurance Co., 9 D. & C.3d 438 (1979), relied on Webster’s to define “relative” as one “connected by blood or marriage.” Appellee is clearly a relative (of his son), and is a member of the same family. It remains to be determined if the two “dwell under the same roof” or are “in residence” together.

Appellant argues that despite the definition the Act provides, the definition of “in residence” should be read in accordance with the prior common law holdings defining “resident” and/or “domiciliary”. An historic legal distinction divides the two terms and they are not interchangeable. DuPuy’s Estate, 373 Pa. 423, 427, 96 A.2d 318, 319-20 (1953). Domicile is “the place where a person has his true, fixed, permanent home and principal establishment.” McKenna v. McKenna, 282 Pa.Super. 45, 48, 422 A.2d 668, 669 (1980). Even if the person cannot state an intention to abide in that place permanently, “the domicile of a person is the place where he has voluntarily fixed his habitation with a present intent to make it either his permanent home or his home for the indefinite future.” In re Estate of McKinley, 461 Pa. 731, 734, 337 A.2d 851, 853 (1975). The distinction is that while residence is a physical fact, domicile is a matter of intention. Laird v. Laird, 279 Pa.Super. 517, 520, 421 A.2d 319, 321 (1980).

By comparing the common law definitions with the statute, it becomes obvious that the meaning the legislature conferred upon the term “in residence” bears less resemblance to the common law term “residence” than it does to “domicile”. Neither domicile nor Section 103 of the No-Fault Act require physical presence, and both imply an intent to return to one habitation after temporary absences. Thus, appellant’s contention that we read “in residence” as equivalent to residency is not consistent with the logical inferences of the legislatures’ own language. An examination of the legislative history of the No-Fault Act discloses that the definition of “insured” in Section 103 was lifted verbatim from the proposed National No-Fault Motor Vehicle Insurance Act, S. 354, 93rd Cong., 2d Sess., May 1, 1974. Subsection (A), defining the named insured, was rewritten, but subsection (B), defining unnamed insured persons, including relatives “in residence”, was never amended. The definitional section was never subject to debate, but it is clear from the final debate on the Act as a whole that the Act was “a scissors and paste bill which has been taken, to a substantial extent, from the legislation pending in the national Congress. It has been put together in a hazardous fashion”. Senator Ammerman, Senate Consideration of Calendar H.B. 1973 (Pr. 3495). The National Conference of Commissioners of U.S. Laws similarly drafted a Uniform Motor Vehicle Accident Reparations Act, August 4-11, 1972. Their definition of “person residing in the same household” is identical both to the national proposed act and the Pennsylvania Act. Their Comment states:

The parts of the definition which refer to a “relative” of a named insured are adapted from automobile policies. The term includes relatives by marriage as well as blood relatives. No attempt, however, is made to spell out the myriad details of consanguinity, affinity, and adoption which qualify one as a relative.
The last sentence, dealing with the family members who temporarily live elsewhere, covers such situations as the college student residing away from home during the school year.

We find no practical difference between students temporarily living away from home, and military personnel, serving their country, who are on assigned duty away from home.

From the information the legislature utilized in drafting the Act, it seems the legislature intended its language to be interpreted as would similar legislation being drafted contemporaneously to the Act. We must conclude that the legislature had no intent to make its definitions synonymous with common law terminology. Therefore, we reject appellant’s interpretation of the Act.

The determination of appellee’s residency status for purposes of the Act constitutes a mixed question of law and fact and, therefore, the trial court’s finding is reviewable by this court. Stambaugh v. Stambaugh, 458 Pa. 147 at 151-2, 329 A.2d 483, at 486 (1974); Watson v. Watson, 243 Pa.Super. 23, 364 A.2d 431 (1976). A court must consider objective factors besides an individual’s assertion of domiciliary intent when making its determination. Shishko v. State Farm Ins., 553 F.Supp. 308, aff'd 722 F.2d 734 (E.D.Pa.1982). We find after review of the record that the trial judge was apprised of the following facts:

Appellee’s son, while in the army, maintained his own bedroom in the family residence in Pittsburgh and kept possessions there. (N.T. 6/28/83, 41a).
Each time the son was given leave he returned to his father’s Pittsburgh home. (N.T. 6/28/83, 27-28a).
Son was registered to vote in Pennsylvania and did not re-register to vote in North Carolina. (N.T. 6/28/83, 34a). While in the service Boswell did not maintain or establish his own habitation but was stationed and lived on base in the barracks. (N.T. 6/28/83, 360-7a).
After his return from service in Korea he again lived in barracks. (N.T. 6/28/83, 41a).
Son chose to garage his car in Pittsburgh rather than leave it at Fort Bragg.

Only one other court in this Commonwealth has examined a fact situation where the issue was whether a relative, enrolled in the military, was a relative “in residence” for purposes of the No-Fault Act. In Heusle v. National Mutual Insurance Company, 479 F.Supp. 274, aff'd, 628 F.2d 883 (W.D.Pa.1979), the plaintiff, while on leave from active duty and living with her parents, was injured in an auto accident. The court found plaintiff to be a member of her family household “in residence” at the time of the accident. Appellants would have us distinguish Heusle factually, becaüse in Heusle the plaintiff was physically present in the household, while in this case the named insured son was absent on duty in Korea. To distinguish the cases in such a manner would be to ignore the language of the statute, which clearly does not require either the named or unnamed insured to be physically present in the household at the time of accident. The statute merely requires the unnamed insurance claimant to usually be “in residence” in the household.

For instance, in Miller v. USF & G Company, 28 D. & C.3d 389 (1983), the unnamed insured was the minor son of divorced parents and was found to be “in residence” in the households of both parents even though he physically was living with his mother at the time of the accident. The court found that the minor son was covered by his father’s policy, finding no need of physical presence for compliance with the statutory provisions of Section 103.

Although we do not accept as binding the common law definition of residency, we do find persuasive the reasoning utilized in various cases which have explored the issue of the residency status of persons enlisted in the military service. A service person’s domicile generally remains unchanged while that person is temporarily stationed in another state on active duty. Wallace v. Wallace, 371 Pa. 404, 89 A.2d 769 (1952). A service person’s domicile is presumed to be the domicile as of his time of enlistment. Turek v. Lane, 317 F.Supp. 349 (E.D.Pa.1970). Military persons have no choice in habitation, hence in domicile, except where permitted to live off-post. Sage v. Sage, 11 Cumberland L.J. 108 (1960). But military personnel may acquire a new domicile if circumstances show an intent to abandon the original and adopt a new domicile. Zinn v. Zinn, 327 Pa.Super. 128, 475 A.2d 132 (1984).

The only act appellee’s son engaged in while in North Carolina which would arguably imply domiciliary intent was the purchase of automobile insurance and the listing of the principal place of garaging the car as the Fort Bragg barracks, North Carolina. This sole act is not sufficient indicia either of domiciliary intent or of intent to abandon his Pittsburgh family “residence” as residence is defined in the Act. Therefore, we uphold the trial court and find appellee was “in residence” with his temporarily absent son in the Pittsburgh household.

We thus affirm the trial court holdings on both issues presented to us for review.

      . Both defendants have stipulated that plaintiff is entitled to the maximum amount of allowable wage loss under Pa. No-Fault Motor Vehicle Insurance Act, plus interest.

      . The accident did occur in Pennsylvania which does have: "2. A compulsory insurance or similar law ...” But since we find, infra, that the accident did not occur out of the state where the covered auto was principally garaged this section does not apply.

      . Several years ago, referring to the word as used in another statute, Judge Goodrich used the following apt language: "... The words ‘resident’ and ‘residence’ have no precise legal meaning although they are favorite words of legislators. Sometimes they mean domicile plus physical presence; sometimes they mean domicile; sometimes they mean something less than domicile." Willenbrock v. Rogers, 255 F.2d 236, 237 (3rd Cir.1958).