author: CIRILLO, Judge.

text:
    448 A.2d 1106
    COMMONWEALTH of Pennsylvania, Appellee, v. Donna MORIO, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 7, 1982.
    Filed July 30, 1982.

      Lawrence D. MacDonald, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   CIRILLO, Judge.

Appellant, Donna Morio, pleaded guilty on June 22, 1981 to the charges of simple assault, escape, and criminal conspiracy. Appellant was sentenced on July 27, 1981 to imprisonment at the State Institutional Home for Women at Muncy for not less than three and one-half years nor more than seven years on the escape conviction. Appellant was sentenced on the simple assault conviction to a consecutive sentence of two years probation. Additionally, she was ordered to pay restitution to the victim of the assault for injuries sustained. On August 5, 1981, a petition to modify sentence was denied by the trial court. This appeal followed.

On February 20, 1981, appellant, along with two other females, assaulted a matron at the Luzerne County Women’s Detention Center. She was being detained there for return to the Gannondale School for Girls in Erie to which she had been previously committed by the Luzerne County Juvenile Court. She had escaped from the Gannondale School about one month prior to this incident.

The circumstances of the assault were that appellant wrapped a sweater around the matron’s neck, and attempted to choke her. She urged the co-conspirators to kill the matron as they beat her about the face. Appellant took the matron’s keys and escaped from the facility. On April 9, 1981, appellant was certified as an adult on these charges.

Appellant raises two questions on appeal: (1) was the imposition of the maximum term of imprisonment, by the trial court, on the escape conviction, manifestly excessive because it inflicted a severe punishment upon appellant; and, (2) was it proper for the trial court to sentence appellant to the State Institutional Home for Women when she was less than sixteen years of age at the time she pleaded guilty.

Initially we note the standard of review of the trial court’s sentencing power as set forth in Commonwealth v. Doyle, 275 Pa.Super.Ct. 373, 380, 418 A.2d 1336 (1979):

Imposition of a proper sentence is a matter vested in the sound discretion of the trial court whose determination is to be respected unless it constitutes a manifest abuse of discretion (citations omitted) ... In imposing sentence the court “must not overlook pertinent facts, disregard the force of the evidence, commit an error of law ... or inflict punishment exceeding that prescribed by statute (citations omitted) . . . The court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant (citations omitted).

Furthermore, a trial judge may use prior juvenile adjudications in assessing the type and amount of sentence to be imposed:

To help the judge individualize the sentence according to the circumstances of the case the court may and, in some instances, must order a presentence investigation report. Pa.R.Crim.P. 1403. Such reports may indicate whether the defendant has previously been adjudicated delinquent. Indeed, although the use of juvenile adjudications is generally prohibited, the legislature has expressly authorized their use, inter alia, “in dispositional proceedings after conviction of a felony for the purposes of a presentence investigation and report.” 42 Pa.C.S.A. 6345(b) ... Finally we note that our Supreme Court has held that prior juvenile adjudications of delinquency may be considered in imposing sentence since such information is helpful to the sentencing court in imposing sentences which are fair to society and the defendant. Commonwealth v. Allen, 287 Pa.Super.Ct. 88, 97-98, 429 A.2d 1113, 1117 (1981).

Appellant argues that the sentence imposed on the escape conviction was manifestly excessive.

The crime of escape is a felony of the third degree for which the trial court may impose a term of imprisonment of not more than seven years.

It was proper for the trial court to order a presentence investigation report on appellant’s juvenile history in order to consider the background and character of appellant. Though appellant was six months pregnant at the time of sentencing, the trial court cited many reasons for the total confinement of appellant at Muncy. She was a constant runaway problem, and she had been institutionalized previously at various facilities in the juvenile system from which she had always escaped.

The trial court found that appellant had an aggressive and an assaultive nature, and, more importantly, her threats to kill during this attack were of great concern to the court. This assault was the second time she had choked a matron at an institution to which she had been committed. She had previously threatened, with a knife, the lives of her mother and brother. The trial court believed that appellant showed a capacity to commit murder because of her temper and overall poor attitude.

As a juvenile, many efforts had been made to assist and rehabilitate appellant, but they were not successful. The trial court was convinced that if only probation were imposed, it would be useless. At sentencing, the court concluded, not only that appellant had a great need for rehabilitation, but, under all the circumstances, a lesser sentence would depreciate the seriousness of the crime. The trial court imposed the confinement of appellant for the protection of others, the gravity of the offense, and appellant’s conduct toward the victim.

We do not find that the sentence imposed amounted to an abuse of discretion by the trial court, nor do we find the sentence manifestly excessive.

In regard to appellant’s second contention, that it was improper for the trial court to sentence appellant to the State Institutional Home for Women when she was less than sixteen years of age at the time she pleaded guilty, 61 P.S. 566 provides:

Any court of record in this Commonwealth, exercising criminal jurisdiction, may, in its discretion, sentence to the State Institutional Home for Women any female over sixteen years of age, upon conviction for, or upon pleading guilty of, the commission of any criminal offense punishable under the laws of this State.

Appellant was born on July 20, 1965. When she pleaded guilty, she was fifteen years and eleven months old. At sentencing, on July 27, 1981, she was sixteen years and one week old.

Although the wording of penal statutes is to be strictly construed, it is clear from reading the statute that the phrase “any female over sixteen years of age” immediately follows and is within the same clause as “sentence to the State Institutional Home for Women”. These phrases are meant to be read as one within the same clause. It is therefore clear that the age at sentencing is the crucial time period in this statute. Appellant’s interpretation is that the phrase “any female over sixteen years of age” is contained within the phrase “upon conviction for, or upon pleading guilty of, the commission of any criminal offense punishable under the laws of this State.” Appellant’s interpretation of the phrases, contained in 566, is not a . correct interpretation especially in light of the punctuation marks, i.e. commas, among the phrases in the statute. We can only interpret the statute to mean that once appellant attained sixteen years of age, at the time of sentencing, she could be properly incarcerated in the State Institutional Home for Women. We find that the trial court did not err in this same conclusion.

Judgment of sentence affirmed.

      . Act of 1972, Dec. 6, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 2701.

      . Act of 1972, Dec. 6, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 5121(a).

      . Act of 1972, Dec. 6, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 903(a)(1).

      . Act of 1972, Dec. 6, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 1103(3).

      . Act of 1972, Dec. 6, P.L. 1339, No. 290, § 3; 1 Pa.C.S.A. § 1928.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    448 A.2d 1108
    Eleanor M. FLAHERTY and James F. Flaherty, her son, David V. Gunther and Geraldine A. Gunther his wife, v. Clarence DeHAVEN and Shirley DeHaven, his wife, Appellants.
    Superior Court of Pennsylvania.
    Submitted April 6, 1982.
    Filed July 30, 1982.

      David Angelo Martino, Bangor, for appellants.
    Cal Leventhal, Honesdale, for appellees.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   CIRILLO, Judge:

This is an appeal from a Final Decree of the Court of Common Pleas of the Forty-third Judicial District, Monroe County, granting a permanent injunction against the appellants, restraining them from interfering with the appellees’ use of their right-of-way on the appellants’ property.

On July 25, 1970, Earl L. and Eudora Hilliard conveyed certain real property to Frank (now deceased) and Eleanor M. Flaherty. The deed contained the grant of an easement in the nature of a right-of-way over and across a proposed street, forty feet in width, through the land of the Hilliards to Township Road 481. The situs of the right-of-way was not described in the deed. On June 19, 1978, Eleanor M. Flaherty, as sole surviving tenant by the entireties, conveyed this parcel to herself and her son, James F. Flaherty.

On March 3, 1973, the Hilliards conveyed certain real property to David V. and Geraldine A. Gunther, which lay adjacent to the Flaherty parcel. However, the deed did not contain a grant of an easement or right-of-way over the land of the Hilliards to Township Road 481 since the Gunthers had direct access to this road. The Hilliards did reserve a right-of-way over the conveyed property to be used in common with the Gunthers.

On June 12, 1971, the Hilliards conveyed certain property to Penn Hamilton Associates, Inc. In this deed the Hilliards reserved a right-of-way over the conveyed property for themselves, their heirs and assigns. On March 25, 1974, Penn Hamilton conveyed this parcel to Clarence and Shirley DeHaven. In this deed a right-of-way was reserved for the Hilliards.

In July 1970 a certain roadway which traversed and looped through the Hilliard property was in existence. The roadway is now in the Gunther and DeHaven properties where it provides access to Township Road 481. This roadway was originally a farmer’s lane but was improved by Earl L. Hilliard prior to the sale of the various parcels.

In June 1979 the parties in this action agreed to construct and thereafter did construct a roadway on the western boundary of the DeHaven property. Subsequently, in November 1979, the DeHavens blocked the looped roadway so that it could no longer be used.

The appellees, Eleanor M. Flaherty and her son James F. Flaherty, and David V. and Geraldine A. Gunther, filed a complaint in equity on January 16, 1980 to enjoin the appellants, Clarence and Shirley DeHaven, from blocking the looped roadway. The complaint alleged that the actions of the DeHavens caused immediate and irreparable harm to the appellees. The DeHavens filed an answer and new matter denying the allegations and claiming the appellees had a right-of-way along the western boundary of their property. The appellees did not respond to this new matter. On August 19, 1980, after argument, the Honorable James R. Marsh issued a Decree Nisi, entering a permanent injunction against the DeHavens, prohibiting them from blocking the looped roadway on their property. Exceptions were filed and on August 24, 1981 they were dismissed and a Final Decree was issued. This appeal now follows.

The appellants contend, on appeal, that the lower court erred in finding that the right-of-way loops through their property rather than following the western boundary.

The Flahertys clearly possess an expressed easement over the land now belonging to the Gunthers and the DeHavens pursuant to the deed from the Hilliards. However, there is no mention in the deed of the situs of the easement.

The primary objective of this Court in construing the terms of a deed is to ascertain and effectuate the intention of the parties. Nevling v. Natoli, 290 Pa.Super. 174, 434 A.2d 187 (1981). In a case such as this, where the deed is not clear and the intention of the parties cannot be construed from the instrument itself, the parties’ intentions are to be ascertained from the language of the entire instrument, from a consideration of the subject matter and from conditions existing when it was executed, together with surrounding circumstances. In re Conveyance of Land Belonging to the City of DuBois, 461 Pa. 161, 335 A.2d 352 (1975).

Testimony by Earl L. Hilliard, the common grantor, revealed that the looped road was intended to provide the most accessible route to the Flaherty property. Mr. Hilliard also testified that he grated and enlarged this roadway prior to the sale of the parcels. This evidence is sufficient to show that the looped roadway was intended to be the situs of the right-of-way expressly provided for the Flahertys in the deed.

Additionally, the Flahertys had used this looped roadway on a daily basis from the time they erected their dwellings in 1970 until the DeHavens prevented access in November 1979. When the precise location of an expressed right-of-way is not fixed or defined by the deed, it is competent for the parties to define a location by subsequent agreement, use or acquiescence. Taylor v. Heffner, 359 Pa. 157, 58 A.2d 450 (1948); see also, Baker v. Zingelman, 259 Pa.Super. 441, 393 A.2d 908 (1978). The use of this looped roadway by the Flahertys for over nine years is sufficient to define the location of the right-of-way in this matter.

Further, testimony supports the finding that both the Flahertys and the Gunthers owned their properties prior to the time that the DeHavens owned theirs, and that at the time they acquired their property, the DeHavens were on actual notice that the appellees used the looped roadway.

For all of the above reasons, we find that the evidence was sufficient to support the finding of the lower court that the Flahertys’ right-of-way, expressly provided for in the deed, was the looped roadway through the DeHavens’ property.

The appellants’ next contend that the failure of the appellees to respond to their new matter constitutes an admission by the appellees that the situs of the right-of-way is along the western boundary of the DeHaven property.

Under Rule 1029 of the Pennsylvania Rules of Civil Procedure, averments of fact are admitted when not specifically denied. Pleadings which contain conclusions of law are not admissions of fact in issue. Srednick v. Sylak, 343 Pa. 486, 23 A.2d 333 (1942). The DeHavens were asserting in their new matter, an easement in contradiction to that raised by the appellees in their complaint. The situs of the right-of-way, in this instance, is thus a legal conclusion rather than an averment of fact. Consequently, Rule 1026 of the Pennsylvania Rules of Civil Procedure, which states that no pleading need be filed unless the preceding pleading is endorsed with a notice to plead, is controlling. The new matter filed by the DeHavens was not endorsed with a notice to plead, therefore, the appellees were under no duty to reply. Lewandowski v. Crawford, 208 Pa.Super. 365, 222 A.2d 601 (1966); see also, UEC, Inc. v. Board of Arbitration of Claims, 12 Pa.Comwlth. 54, 314 A.2d 521 (1974).

The appellants also contend that the lower court erred in finding an easement by implication with respect to the Gunthers without a finding of necessity.

Generally, an easement by implication arises only where such an easement was intended by the parties, as shown by the terms of the grant and surrounding circumstances. Nord v. Devault Contracting Company, Inc., 460 Pa. 647, 334 A.2d 276 (1975).

In the case of Thomas v. Deliere, 241 Pa.Super. 1, 359 A.2d 398 (1976), this Court held that no single factor is dispositive and no purely mathematical weighing of factors is possible in determining whether an easement should be implied. The Court went on to say that in the greater number of cases, it is the necessity of the use of the land to the claimant that contributes most to the implication of an easement. However, as the degree of necessity decreases, the need to refer to other factors suggestive of an intent to create an easement increases substantially. 241 Pa.Super. at 5, 359 A.2d at 400.

In the instant case, the inability to use the looped roadway inconveniences the Gunthers in the use of their land, even though they do have direct access to the township road. In addition, Mr. Hilliard testified that it was his intention that all people benefit from the looped roadway which he had improved to provide the most convenient route up the precipitous slope of the property. Also, from the time the Gunthers bought their property in March 1973 until the DeHavens blocked the right-of-way in November 1979, the Gunthers, along with the Flahertys, continually used the looped roadway. Thus, it is obvious that the DeHavens had knowledge of the roadway’s prior use before they barricaded the right-of-way.

The evidence is adequate to show that it was the intent of the parties to the original conveyance that the looped right-of-way provide an alternate access route to the Gunther property. Likewise, the steep terrain of the land is ample reason why the looped roadway is important to all the parties. Testimony indicates that vehicles “bottom out” when attempting to use the roadway on the western boundary of the appellants’ land. We find, therefore, that even though the actual necessity for the looped roadway was not great, all other factors were sufficient to imply the existence of an easement with regard to this roadway in favor of the Gunthers.

Finally, it is our view that the construction of the roadway on the western boundary of the DeHaven property was intended only as an accommodation to the appellants. There is no evidence of an agreement or understanding between the parties that the new roadway would replace the looped roadway as the easement in this matter. Rather, as the lower court found, testimony indicates that the new roadway was built merely as an alternate route through the land.

Accordingly, we affirm the final decree of the court below.

      . The express easement appears in the deed as follows:
      “There is also granted to said Frank Flaherty and Eleanor M. Flaherty, his wife, the grantees herein, their heirs and assigns, a right of way over and across a proposed street forty feet in width leading from the above described lot, through other lands of Earl L. Hilliard and Eudora Hilliard, his wife, the grantors herein, their heirs and assigns, with said Frank Flaherty and Eleanor Flaherty, his wife, the grantees herein, their heirs and assigns.”

      . Pa.R.C.P. No. 1029 provides as follows:
      (a) A responsive pleading shall admit or deny the averments of fact in the preceding pleading or part thereof to which it is responsive. Admissions and denials in a responsive pleading shall refer specifically to the paragraph in which the averment admitted or denied is set forth.
      (b) Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial of a demand for proof, except as provided by subdivision (c) of this rule, shall have the effect of an admission.
      Adopted, June 25, 1946.

      . Pa.R.C.P. No. 1026 provides as follows:
      Every pleading subsequent to the complaint shall be filed within twenty (20) days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead.
      As amended, May 15, 1979.

      . In determining whether the circumstances under which a conveyance of land is made create an implied easement, Section 476 of the Restatement of the Law of Property, A.L.I. Volume 5, suggests that the following factors are important:
      (a) whether the claimant is the conveyor or the conveyee,
      (b) the terms of the conveyance,
      (c) the consideration given for it,
      (d) whether the claim is made against a simultaneous conveyee,

        (e) the extent of necessity of the easement to the claimant,
      (f) whether reciprocal benefits result to the conveyor and the conveyee,
      (g) the manner in which the land was used prior to its conveyance, and
      (h) the extent to which the manner of prior use was or might have been known to the parties.


author: BECK, Judge: WICKERSHAM, Judge, WIEAND, Judge

text:
    448 A.2d 1113
    COMMONWEALTH ex rel. George R. JORDAN, Appellee, v. Cindy JORDAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 2, 1981.
    Filed July 30, 1982.

      Robert F. Palmquist, Monaca, for appellant.
    George E. James, Beaver Falls, for Jordan, appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   BECK, Judge:

This is a child custody dispute involving Paul who was five years old at the time of the lower court’s hearing in August, 1980. He had lived his entire life with his mother until the lower court transferred custody to the father in September, 1980. The father had lived separately from the mother and child for almost four years. He had remarried subsequent to the divorce from Paul’s mother. The record suggests that the mother had been the child’s primary caretaker since birth. She brings this appeal.

We conclude that the grounds cited by the trial court to justify the transfer of the boy from the mother to the father are not adequately supported by the evidence or the laws of this Commonwealth, and we remand this case for a hearing consistent with this opinion.

We hold, for the reasons stated below, that where two natural parents are both fit, and the child is of tender years, the trial court must give positive consideration to the parent who has been the primary caretaker. Not to do so ignores the benefits likely to flow to the child from maintaining day to day contact with the parent on whom the child has depended for satisfying his basic physical and psychological needs.

The removal of a young child from an established home with one parent has long been recognized as a factor which bears upon his emotional well-being. A child “becomes strongly attached to those who stand in parental relationship to it and who have tenderly cared for it.” Com. ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 97, 66 A.2d 300, 306 (1949); accord, In Interest of Tremayne Quame Idress R., 286 Pa.Super. 480, 429 A.2d 40 (1981); Jon M. W. v. Brenda K., 279 Pa.Super. 50, 420 A.2d 738 (1980).

It is clear that the continued presence of a fit parent who through daily affection, guidance, companionship, and discipline fulfills the child’s psychological and physical needs is crucial to the child’s emotional well being. The countless transactions between parent and child on a day to day basis build the foundation for the child’s future healthy development. The Pennsylvania courts have recognized this principle and have held that the “continued residence of children with one parent is a factor which may, in certain cases, be controlling.” Com. ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 369 A.2d 821, 824 (1977). See also Pamela J. K. v. Roger D. J., 277 Pa.Super. 579, 419 A.2d 1301 (1980).

Changes in custody can seriously disrupt a child’s life. A child of tender years should not be lightly removed from a parent with whom the child has lived since birth.

Furthermore, insofar as a parent’s past performance is likely to be predictive, judicial inquiry to determine the identity of the primary caretaker will yield evidence concerning the future commitment of a parent. If in the past,' the primary caretaker has tended to the child’s physical needs and has exhibited love, affection, concern, tolerance, discipline and a willingness to sacrifice, the trial judge may predict that those qualities will continue.

Therefore, the role of the primary caretaker, without regard to the sex of the parent, is a substantial factor which the trial judge must weigh in adjudicating a custody matter where the child is of tender years.

The facts of the instant case are not complicated. The child’s parents, residents of New Brighton, Pennsylvania, were separated in October, 1976 and divorced in mid-1977. Except for a brief period after the separation, the mother and child have lived in New Brighton. As a matter of fact, for the two years prior to the August, 1980 hearing, they resided in New Brighton in an apartment adjacent to that of the child’s maternal grandmother. The mother has not remarried. The father remarried in June, 1977, a few weeks after the divorce was granted. A child was born to the father and his new wife in December, 1977.

At the time of the divorce, the father and mother entered into an informal agreement whereby the mother retained custody of their son and the father had liberal visitation privileges. This informal agreement eventually broke down. In April, 1978, the father filed a Petition for Writ of Habeas Corpus which commenced the action subject to this appeal.

In deciding this appeal, we review the record comprehensively mindful that we are bound by the finding of facts of the lower court, but not by the inferences drawn therefrom. Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1978); Com. ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 331 A.2d 665 (1974). The standard in custody adjudications remains the best interests of the child. In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979).

Families with small children are dissolved by divorce with increasing frequency. In each of the years, 1974, 1975, 1976, 1977 and 1978, there were over one million children in the United States whose parents obtained divorces. Courts are often called upon to adjudicate custody disputes arising from the dissolution of these family units. In so doing, the trial judges are placed in a position where Solomonic wisdom is required. They must make a determination on the basis of testimony that is often bitter, conflicting and incomplete. They must make educated predictions about the child’s future always keeping in mind the best interests of the child.

The instant case was difficult and the lower court demonstrated care and consideration. However, the court’s conclusion that the father would provide a more “stable” home environment for the child is unsupported by the evidence. The judge’s decision was based in part on the fact that the mother changed residences three times between October, 1976 and August, 1980, the date of the custody hearing. While it is true that the mother moved three times after she and her husband separated, such alleged “instability” was clearly temporary. Mother and child left the state only for a few months, before returning to the New Brighton area. At the time of the hearing, they had been living for two years in an apartment next to that of the child’s maternal grandmother. (N.T. 41, 91.) These facts are clearly distinguishable from those of McCann v. McCann, 270 Pa.Super. 171, 411 A.2d 234 (1979), where this Court held that evidence that the mother had moved the child to six residences in the year prior to the hearing supported a finding of “instability.” Moreover, there was no testimony at trial to support an inference that the changes in residence adversely affected the child. Cf. Com. ex rel. Steiner v. Steiner, 257 Pa.Super. 457, 390 A.2d 1326 (1978).

The additional justification for the finding that the father would provide a more stable home environment involved vague and incomplete testimony about a motorcycle gang. Citing this testimony, the court stated: “The testimony is conflicting, but apparently members of a motorcycle gang threatened to shoot the brother of . . . the mother’s boyfriend. Paul overheard the threats and thought they were going to shoot his mother.” (N.T. 51, 52, 53, 153, 154.) The record reveals no evidence linking the boy’s fears to negligent or irresponsible behavior by the mother or her boyfriend. This testimony, standing alone or combined with the testimony of changes in residence, does not provide an adequate basis for inferring that the father would provide a more stable home environment.

The next reason advanced by the lower court for awarding custody to the father is that the law traditionally favors two parent families over single parent ones in custody disputes. The lower court misperceives the law. There is no presumption in our child custody law favoring two parent families. The sole criterion in determining custody disputes between parents is “the best interest and permanent welfare” of the child. In re Custody of Phillips, 260 Pa.Super. 402, 394 A.2d 989, 990 (1978).

Two parent families may not be presumed, as a matter of law, to be superior to one parent families. The existence of a step parent at times may be a positive and at other times a negative factor. It behooves the court to inquire into the quality of both natural parents’ homes. To prefer two parent families may force single parents into multiple—and perhaps unfortunate—marriages in order to protect their right to custody.

Moreover, the clear trend has been to abolish presumptions in custody disputes. As we stressed in In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648, 653 (1977), the court should avoid mechanical determinations and focus its analysis on a close scrutiny of all particular facts relevant to determining the child’s best interests.

In this case, the record revealed no basis for the lower court’s inference that the child’s home environment was unstable because the mother was a single parent, or that his home environment would be more stable in the future if the child lived with his father and the second wife.

The sole remaining proposed justification for the lower court’s decision focused on the physical characteristics of the two home environments. The court conceded that both homes are well kept and have adequate space for the boy. The mother lives in an apartment on a main street in the borough of New Brighton while the father lives in a trailer on two rural acres, next to a substantial farm owned by his in-laws. In that setting, the boy would have access to a pond, a blackberry patch and woods, as well as to a variety of wild and domesticated animals. We assume, arguendo, that the testimony supports the lower court’s finding that the child would have a superior play area if custody was awarded to the father. This advantage, however, is for the most part physical and not determinative. Com. ex rel. Shipp v. Shipp, 209 Pa.Super. 58, 223 A.2d 906 (1966); Com. ex rel. Levinson v. Levinson, 162 Pa.Super. 563, 59 A.2d 625 (1948).

We accordingly vacate the lower court’s order and remand to the lower court for reconsideration in accordance with this opinion. Because over one and one half years have elapsed since the initial hearing, and because this opinion raises issues not adequately treated in the record, we direct the lower court to take additional testimony necessary to complete the record. The Superior Court relinquishes jurisdiction over this matter.

WICKERSHAM, J., files a concurring opinion.

WIEAND, J., files a dissenting statement.

WICKERSHAM, Judge,

concurring:

I agree with the well-considered opinion of my colleague Phyllis W. Beck. I hesitate to reverse trial judges in custody cases particularly when the trial judge, the Honorable Joseph S. Walko, has written such a thoughtful and complete opinion as he did. I believe, however, that the lower court opinion has two flaws that warrant reconsideration.

First, Judge Walko based his decision in part on his belief that Paul will be better off with his father’s new family than with his mother alone. The lower court observes: “This type family unit has been traditionally favored over the type comprised of Cindy [Paul’s mother] and Paul.” I cannot imagine how labeling a family arrangement “traditionally favored” assists analysis of what will further the best interests of the child. The trial judge is virtually raising a presumption here and presumptions are now disfavored in custody cases. In fairness to the trial judge, he does add that the traditional family unit will serve Paul’s best interests, yet this does not correct the basic error of substituting a formula for analysis.

Second, Judge Walko did not adequately consider the effect of taking Paul away from his mother, who has been his primary caretaker most of his life. The trial judge decided that both parties are fit parents; because both parents are fit the judge used other criteria—most notably the physical environment of the father’s home—to make his award of custody. In such a close case I believe more consideration must be given to continuity of care in the child’s life than access to a fishing pond, woods and a blackberry patch. See lower ct. op. at 12.

I agree with Judge Beck that where both natural parents are fit to care for a child of tender years, the trial court must give positive consideration to the parent who has been the primary caretaker. That continuity of care can be decisive is made plain in Hugo v. Hugo, 288 Pa. Super. 1, 430 A.2d 1183 (1981).

[T]his court has long recognized that the removal of a young child from his environment is a factor whieh bears on its emotional well being. In re Custody of Phillips, 260 Pa.Super. 402, 408, 394 A.2d 989, 992 (1978); Commonwealth ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 97, 66 A.2d 300, 306 (1949). Therefore, continued residence of children with one parent may be controlling. Commonwealth ex rel. Children’s Aid Society v. Gard, supra; Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 88, 369 A.2d 821, 824 (1977). Commonwealth ex rel. Kraus v. Kraus, 185 Pa.Super. 167, 138 A.2d 225 (1958).

Id., 288 Pa.Superior at 6-7, 430 A.2d at 1185.

In Pamela J. K. v. Roger D. J., 277 Pa.Super. 579, 589-90, 419 A.2d 1301, 1307 (1980), this court held:

Given, however, Juliet’s long residence in appellant’s household, it was not enough for the lower court to assure itself of appellee’s and Les’s fitness to have Juliet with them. The court was further required to consider the advantages and risks of a change in custody. This court has noted the importance to a child’s development of a stable relationship with an established parental figure and a known physical environment. Haraschak v. Haraschak, 268 Pa.Super. 173, 407 A.2d 886 (1979); Tomlinson v. Tomlinson, 248 Pa.Super. 196, 374 A.2d 1386 (1977); Sweeney v. Sweeney, 241 Pa.Super. 235, 361 A.2d 302 (1976); Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). ‘There can be no question that stability is important to a child’s welfare, and that in deciding who should have custody of the child it will therefore always be essential to consider how long the child has spent with [the parties].’ In re Hernandez, 249 Pa.Super. 274, 296-297, 376 A.2d 648, 660 (1977). A child above the age of two may become strongly attached to those who stand in a parental relationship and who has [sic] tenderly cared for her, Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 89, 369 A.2d 821, 824 (1977), so that to break the bonds of affection “ ‘may result not only in the child’s unhappiness, but also in its physical injury.’ ” Commonwealth ex rel. Kraus v. Kraus, 185 Pa.Super. 167, 175, 138 A.2d 225, 229 (1958), quoting Commonwealth ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 66 A.2d 300 (1949). Because of the child’s need for stability in the early years, it is frequently wise to delay a change of custody until the child is older. McCourt v. Meyers, 268 Pa.Super. 152, 407 A.2d 875 (1979). (footnote omitted)

See also, In Interest of Tremayne Quame Idress R., 286 Pa.Super. 480, 493-94, 429 A.2d 40, 47 (1981).

Therefore, I agree the case warrants reconsideration.

WIEAND, Judge

dissenting:

I respectfully dissent. I would affirm the award of custody for the reasons set forth in the excellent and persuasive opinion of the trial judge. He had the opportunity to hear and see the witnesses and has prepared a careful and extensive analysis of the evidence presented. He concluded from the facts proved that the best interests of Paul Jordan would be served by placing him in the custody of his father. My independent review of the record discloses no good reason for interfering with that determination. I would not reverse the trial court’s order and require reconsideration merely because its opinion did not contain an express reference to and detailed discussion of the fact that the mother had had custody of the boy prior to the hearing.

      . The trial court, after finding both parents to be “equally fit,” justified its decision on the grounds that the father could provide: (1) a more “stable” home environment; (2) a two-parent family deemed “favored” by the law; and (3) a superior physical environment. As we show, infra, factor (1) is unsupported by the evidence, factor (2) reflects an error of law, and factor (3) is insufficient, standing alone, to justify an award of custody.

      . We recognize that where the lower court awards shared custody, the considerations of the primary caretaker outlined in this opinion are not applicable. See In re Wesley J. K., 299 Pa.Super. 504, 445 A.2d 1243 (1982).

      . See Gunter v. Gunter, 240 Pa.Super. 382, 398, 361 A.2d 307, 316 (1976); Cf. In Interest of Tremayne Quame Idress R., supra, 286 Pa.Superior 495 n.6, 429 A.2d at 48 n.6.

      . The instant case involves a child whom the trial court apparently considered too young to interview. Where the child is of an age and/or maturity such that his or her preference should be given weight, a court might justifiably attach less importance to who had been the primary caretaker.

      . In Garska v. McCoy, W.Va., 278 S.E.2d 357 (1981) the court enumerated the following factors to be considered inter alia in identifying the primary parent:
      (1) preparing and planning of meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning, and care of clothes; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers after school, i.e., transporting to friends’ house or, for example, to girl or boy scout meetings; (6) arranging alternative care, i.e., babysitting, day care, etc.; (7) putting child to bed at night, attending to child in the middle of the night, waking child in the morning; (8) disciplining, i.e., teaching general manners and toilet training; (9) educating, i.e., religious, cultural, social, etc.; and (10) teaching elementary skills, i.e., reading, writing and arithmetic.
      The record in the instant case contains no information concerning the role each parent played in the care of the child in the sixteen months between his birth and the parents’ separation.

      . U. S. Department of Commerce, Bureau of the Census, Statistical Abstract of the United States, 1980, Vital Statistics, No. 123, Marriages and Divorces: 1950-1979.

      . The trial court rejected appellee’s contention that the mother’s personal relationships with men subsequent to separation had shown any emotional instability. The trial court also explicitly rejected appellee’s suggestion that the mother’s relationship with the man who had lived with her and her child at the New Brighton apartment for eight months had adversely affected the boy.

      . In child custody cases, the court must “continually hew to the pole star of a child’s best interests, eschewing presumption and surmise.” Morris v. Morris, 271 Pa.Super. 19, 412 A.2d 139, 141 (1979). See, e.g. Com. ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977) (no presumption that mother should be awarded custody of child of “tender years”); In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648, 653 (1977) (no presumption that child’s best interest will be served by being raised by a parent).

      . We also note that there was testimony that the child’s maternal grandmother lives in an adjoining apartment, sees the mother and child every day, and is able to assist the mother in caring for him. (N.T. 146 et seq.)

      . Com. ex. rel. Holschuh v. Holand-Moritz, 448 Pa. 437, 292 A.2d 380 (1972); Com. ex rel. Grimes v. Grimes, 281 Pa.Super. 484, 422 A.2d 572 (1980) (Spaeth, J., dissenting).


author: MONTEMURO, Judge:

text:
    448 A.2d 1119
    Robert LAYMAN, Administrator of the Estate of Alexander S. Layman, Deceased, Appellant, v. WESTERN SAVINGS BANK.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1982.
    Filed July 30, 1982.

      Gilbert E. Toll, Philadelphia, for appellant.
    Christopher K. Walters, Philadelphia, for appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

The instant action presents the problem of deciding which of two innocent parties suffers a loss when a fiduciary is a thief. Appellant herein is the administrator of an estate who opened an estate account at the appellee bank, Western Savings. Appellee disbursed funds from the account when the attorney for the estate presented the passbook together with a withdrawal slip correctly signed by appellant himself. The court below entered judgment in favor of the bank-appellee and against the administrator-appellant and we affirm.

The appellant first contacted another attorney to handle the estate, and presented him with certain papers and records, among which were the passbook and a withdrawal slip signed in blank. On January 12, 1976, appellant turned the estate over to a new attorney, S. Donald Keesal. The passbook and the withdrawal slip were in the file. Within twenty-four hours, Keesal had presented the passbook and the withdrawal slip filled in by him for $27,000, to a teller at the Western Savings Bank (appellee bank) and had requested disbursal in the form of three checks and cash in an amount exceeding a thousand dollars.

When the teller followed bank procedure by requesting a signed acknowledgment by the customer of the dangers of carrying more than a thousand dollars in cash, he realized that the signature was not that of the administrator as on the withdrawal slip. This was not unusual because estate monies are frequently disbursed by the attorney rather than the executor of the estate, as the teller later testified. He nevertheless spoke with his supervisor, the bank manager, who checked the signature for authenticity, and then issued the requested sums in checks only: two checks, each for more than $7,000 were made out to individuals, one check for $10,000 was made out to the estate, and a fourth check was made out to Keesal himself for $1,104.83.

Because appellee was a savings bank and not a full-service bank, it maintained a checking account at Fidelity Bank as an ordinary customer, and the four checks were all drawn on that account. Three of those checks were indorsed with the name of the individuals to whom they were written. The estate check was negotiated at Industrial Valley Bank with an indorsement as follows: “Estate of Alexander S. Layman, S. Donald Keesal.” This check was then sent on to Fidelity Bank, which also honored it.

Appellant makes two arguments: first, he says appellee was negligent in disbursing any funds and is responsible to return the entire $27,000 to the estate; second, he argues that the indorsement on the estate check was defective and that appellee is at least responsible for the honoring of an improper signature by its agents, the other two banks. Neither argument can prevail.

Bank accounts may be the subject of an expressed or implied contract. Cohen v. Marian, 171 Pa.Super. 431, 90 A.2d 373 (1952). Savings banks have the power to make regulations governing receipts and disbursement of deposits which are binding on depositors and their personal representatives when they have actual or constructive notice. 5 Pennsylvania Law Encyclopedia “Banks and Banking” § 84, at 303 and cases cited therein.

The “Rules and Regulations Respecting Deposits and Payments” as published and distributed by pamphlet at the time the account was opened contained in pertinent part the following rule under “Payments” at IV (5):

If any person shall present in person ... a deposit book . . . evidencing indebtedness of the Society . . . claiming to act under authority from the depositor, and shall thereby obtain the amount deposited . . . the Society will not be responsible for the wrongful payment or be liable to make good the same.

The above rule is in line with case law which has held that a bank is not liable for funds dispensed to an improper party upon presentation of a passbook, assuming that the bank has exercised ordinary care. Bulakowski v. Philadelphia Saving Fund Society, 270 Pa. 538, 113 A. 553 (1921); Burrill v. Dollar Savings Bank, 92 Pa. 134 (1879).

In this instance, the person who presented the passbook, although undeniably a thief, was not an impostor. He was in fact the attorney retained to handle the estate, and he presented the passbook in conjunction with a withdrawal slip properly signed by the depositor, the appellant himself.

Thus the appellee was also in compliance with Rule IV (2) of the Society which provides in pertinent part:

If a depositor be unable to attend in person to receive money, the sum may be withdrawn by power of attorney or order signed by the depositor and acknowledged when required, provided the deposit book ... is presented to . . . the Society at the time of such withdrawal .. . Appointments of attorneys in fact, withdrawals by attorneys in fact, and orders upon the Society for payments in withdrawal, can only be made in such form as may be approved by the Society.

Again, this comports with case law, which holds that bank rules may be waived by the bank itself, since they were made “for the convenience and the protection” of the bank. In re Blose’s Estate, 374 Pa. 100, 97 A.2d 358 (1953).

Appellant stresses that the withdrawal slip requests the customer to sign in the presence of the teller, and he points to the wording that implies that a power of attorney may be a preferred proof of agency.

■ However, the bank manager testified that the practice of the bank was to issue checks on an estate account on the authority of a withdrawal slip correctly signed by the depositor-administrator when presented by an attorney for the estate. (Deposition of September 8,1977, 36-43). The teller similarly testified to bank procedure which accepted a properly executed withdrawal slip as an order and did not require the slip to be signed in the teller’s presence. (N.T. April 14, 1980, at 35)

We conclude that neither case law nor the contract between the parties precluded appellant from releasing funds to an agent presenting a passbook and a properly signed withdrawal slip. The responsibility of a savings bank has been determined to be one of “ordinary care.” Bulakowski, supra. Where the bank has complied with its own regulations, the burden is on the depositor to prove that the bank was negligent. Armstrong v. United States, 171 F.Supp. 835 (E.D.Pa.1959) remanded on other grounds 283 F.2d 122 (CA 3 Pa. 1960); Bulakowski, supra; Saji v. Philadelphia Saving Fund Society, 112 Pa.Super. 149, 170 A. 334 (1934). The method appellee pursued was ordinarily prudent; it demanded two documents and checked the signature on one of them. These documents appeared to be, and were, genuine. Appellee declined to disburse any cash to an agent, and instead issued checks only. We find that its measure of care was at least “ordinary” and was not “negligent.” Appellant has therefore not met his burden of proof, and the order of the lower court denying him relief was correct.

We now turn to appellant’s argument that appellee is liable for the payment of $10,000 on the check made out to the estate and indorsed with a signature that was on its face inadequate. On cross-examination appellee’s teller admitted that an indorsement containing merely the name of the estate and the name of the party presenting the check would not have been adequate to release funds under appellee’s rules and regulations. He stressed, of course, that the check was not negotiated at appellee bank but at Industrial Valley, and declined to speculate on another bank’s rules and customs of operation.

At this point, however, we must set aside all questions of comparative negligence and of discussion as to which of two innocent parties is the more culpable. A simple review of the relationship of the parties under the Uniform Commercial Code convinces us that the appellant must bear the brunt of the loss of the estate monies. When the transactions surrounding the payment of the estate check are examined, it becomes obvious that the alleged fault of honoring a defective indorsement is not one that may be lawfully laid upon a party in appellee’s position. On this particular issue, appellant served the wrong bank as defendant.

Appellee bank was the drawer of the check for $10,000 made out to the estate. The drawer, under § 3413 of the UCC, makes the following contract and admissions:

(b) Contract of drawer.—The drawer engages that upon dishonor of the draft and any necessary notice of dishonor or protest he will pay the amount of the draft to the holder or to any indorser who takes it up. The drawer may disclaim this liability by drawing without recourse.
(c) Admissions by maker, drawer or acceptor.—-By making, drawing or accepting the party admits as against all subsequent parties including the drawer the existence of the payee and his then capacity to indorse.

Under the instant facts, of course, the draft was not dishonored but was paid by both the collecting bank (IVB) and the drawee (Fidelity). There was no “holder” or “indorser” left holding a check that could not be cashed; instead the money was released to the payee, the estate, which was then defrauded by its own agent. The drawer therefore did not become liable under its “contract” with a holder or indorser.

Turning to § 3413(c), supra, appellee is also free of “admissions” which would make it liable. Neither the “existence” of the payee estate nor the “capacity” of a proper agent to make a proper indorsement is at issue. The defalcating attorney signed only his own name, neglecting to put any indication of his agency on the indorsement. This was improper, but was certainly not a matter under appellee’s control, as the UCC recognizes by having the drawer responsible only to admit “capacity” and “existence.”

In short, the Code does not contemplate that a drawer shall be the insurer of the check it drafted once that check has left its hands under a standard of ordinary care. A drawer cannot guarantee any agent’s honesty.

It is arguable that Industrial Valley Bank, as the bank which served as the “collecting bank” by first honoring the check might have had a liability under Section 4207, which sets forth the collecting bank’s warranties. The instant record does tend to prove that an improper indorsement was accepted by the only bank that was in a position to see the inconsistency. However, negligence under § 4207 does not apply to the drawer, and therefore appellee cannot be liable for the alleged fault of the collecting bank, which is not a party to this action.

There is no question of agency between the two banks. Appellant was an ordinary customer maintaining a checking account at Fidelity, the drawee bank. Industrial Valley Bank, as collecting bank, was merely the bank of choice for the thief, and it became the collecting bank through happenstance. Neither IVB nor Fidelity was accountable to appellant as an agent acting in behalf of the appellee bank in the circumstances of this case.

The lower court was correct, therefore, in finding for the appellee and against the appellant on the above facts, and we affirm its decision. Denial of the exceptions at No. 1293 Philadelphia 1981, and judgment rendered at No. 2386 Philadelphia 1981 are affirmed.

Orders affirmed.

      . The Uniform Commercial Code (UCC) was made a part of Pennsylvania law in 1953 and was amended by transfer of the text to the Consolidated Statutes without change of substance in 1979, Nov. 1, P.L. 255, No. 86 § 1, effective January 1, 1980. Therefore, this opinion will utilize the present citations to the Pennsylvania Consolidated Statutes Annotated, although the events that gave rise to the case took place in 1976.

      . Under the UCC, the liability as between the payee and the collecting and/or drawee banks on these facts would appear to be a close decision. We need not speculate upon the outcome, but merely note the provision as follows:
      § 3406. Negligence contributing to alteration or unauthorized signature
      Any person who by his negligence substantially contributes to .. . the making of an unauthorized signature is precluded from asserting the ... lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the business of the drawee or payor.


author: POPOVICH, Judge: CIRILLO, Judge,

text:
    448 A.2d 1123
    COMMONWEALTH of Pennsylvania v. Robert D. McCANN, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1982.
    Filed July 30, 1982.

      Richard W. Epstein, Sharon, for appellant.
    Charles S. Hersh, Assistant District Attorney, Mercer, for the Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge:

This is a direct appeal from a judgment of sentence of not less than five (5) years nor more than ten (10) years, imposed by the trial court after a jury found the appellant, Robert D. McCann, guilty of aggravated assault (18 Pa.C.S.A. § 2702).

On appeal, appellant contends that, inter alia, trial counsel was ineffective for failing to request the court to instruct the jury concerning the consequences of returning a verdict of not guilty by reason of insanity. We agree and, accordingly, vacate the judgment of sentence and remand for a new trial.

As this Court has stated in the past, in deciding a claim of ineffectiveness, we must initially determine whether the issue underlying the charge of ineffectiveness is of arguable merit. Commonwealth v. Jennings, 285 Pa.Super. 295, 427 A.2d 231 (1981). Then, if the underlying issue is held to be of arguable merit, we determine whether the course taken by counsel had some reasonable basis designed at promoting his client’s best interests. Id.

In ascertaining if appellant’s assertion is of arguable merit, the Court starts by examining the facts. On December 11, 1979, Mrs. Wilma Cooper was walking home when she was accosted in broad daylight. Miraculously, the victim survived the infliction of some 20 stab wounds to all parts of her body. Shortly after the incident, appellant was picked up near the scene by the police complaining of a knife wound to the leg, which he claimed was sustained in the course of aiding a woman being attacked. To prove his point, appellant took the authorities to where Mrs. Cooper was lying in a pool of blood. The police immediately summoned an ambulance for the victim and then transported the appellant to the hospital. While there, the officer in charge of the investigation was handed a note from one of the ambulance attendants. The note gave a description of the assailant, as told to the writer by the victim, which was strikingly similar to the appellant. As a result, the police located the appellant, advised him of his rights and, shortly thereafter, secured a taped confession. Additionally, the victim selected the appellant’s photograph out of an array shown to her while she was recuperating in the hospital.

Prior to trial, appellant’s counsel raised the defense of insanity. Accordingly, the trial court directed that the appellant be referred to Warren State Hospital for observation. Test results submitted to the court indicated that the appellant was competent to stand trial.

As conceded by appellate counsel in his brief to this Court, “[t]he only real issue in the case was whether the Appellant was sane at the time of the stabbing.” As a consequence thereof, the jury heard testimony proffered by. both the defense and the Commonwealth concerning appellant’s penchant for violence and sexual perversion. In fact, the sanity issue was broached by the defense through the direct testimony of a Mary Barker, appellant’s next door neighbor. Mrs. Barker recounted how she had observed the appellant engaging in sexual activity with a dog—once in appellant’s home and a couple of times in the yard. Next, Dr. Betty Von Benken, a clinical psychologist in the forensic unit at Warren State Hospital, testified to administering a battery of tests to the appellant which measured intellectual, neurological and personality factors. The witness was able to conclude from the tests that appellant, at times, suffered from anxiety so high that it incapacitated him. The witness went on to report that appellant exhibited “obsessive thinking about rape and stabbing; and even though he knew it was wrong, he couldn’t seem to control it.” (N.T. 203) Also, the witness admitted that this fantasy did not just occur occasionally, “but it was every day[.]” (N.T. 204) However, Dr. Von Benken, despite the number of tests administered, “ha[d] no way of knowing what was in [appellant’s] mind[]” at the exact moment that he stabbed the victim. (N.T. 217)

Dr. Walter S. Finken, Director of the Forensic Unit of Warren State Hospital, also testified on behalf of the defense. Dr. Finken recounted how the appellant, during their initial interview, admitted to planning the assault (“rape”) of Mrs. Cooper; and that, after the appellant dropped out of college and moved in with his grandmother, “[h]e was increasingly plagued with . . . fantasies of rape and murder.” (N.T. 236) Such predilection was finally acted out when the appellant assaulted Mrs. Cooper. As the witness opined:

“at the time of the actual thing, I think he [appellant] flipped into some sort of a brief psychotic state overwhelmed by intense emotion, and I think that these horribly destructive rape fantasies, rape murder fantasies he had been having, suddenly for some reason, instead of ending in flight, flipped over into action, and, uh, during this actual time, I think that he was suspended. I don’t think he knew anything except the frenzy he was in; and as such, during that actual time, uh, I will postulate that I think that his understanding of right and wrong was suspended, and I don’t think he knew there was such a thing as right and wrong.” (N.T. 242-43)

On cross-examination, the witness did not waver from his position that, although appellant was aware of his conduct before and after the incident, during the actual stabbing he was unable to differentiate right from wrong. In other words, appellant had a loss of contact with reality and was not aware of anything. (N.T. 257)

To rebut appellant’s insanity defense, the Commonwealth was permitted to present its own psychiatrist, a Dr. Phillip' J. Resnick. The witness testified to reviewing all the relevant literature prepared on the appellant and interviewing the accused for about three hours prior to preparing his report. In the course of reciting the content of the report, the witness described the appellant as having a “very close psychological association in his mind between sexual pleasure and the administration of punishment to the victim.” (N.T. 272) Additionally, Dr. Resnick agreed with Dr. Von Bender’s diagnosis of the appellant as a sexual sadist; however, he did not agree that such disorder was “something which causes someone to be out of touch with reality.” (N.T. 275) Quite the contrary, the witness believed that appellant “was in touch with reality, and he knew the consequences of his action.” (N.T. 277) Further, the Doctor opined, “in this case even if you hypothesize that Mr. McCann did have a mental illness—which I don’t agree with—at the time of the act, it is still my belief that his mental disease did not preclude him from knowing the wrongfulness of the act.” (N.T. 278) Nonetheless, it was not Dr. Resnick’s intention to minimize the fact that the disorder (sexual sadism) suffered by the appellant “ma[de] him extremely dangerous to society,” “and this kind of thing [was] not easily cured by psychiatric treatment, so that [he] fores[aw] [appellant] as being a highly dangerous person for the indefinite future.” (N.T. 281) At the conclusion of this witness’ testimony, the jury was charged that there were three possible verdicts in the case, i.e., guilty, not guilty or not guilty by reason of insanity.

In post-trial motions, counsel assigned various reasons for relief. However, the only averment we need concern ourselves with is whether the court erred in not charging the jury on the possible psychiatric treatment and commitment of the accused if a verdict of not guilty by reason of insanity were returned. Since the court noted that counsel’s stewardship was intertwined in the claim made, there having been no specific objection lodged by counsel at the time the charge was read (Pa.R.Crim.P. 1119(b)), it permitted counsel to withdraw and appointed new (private) counsel for the purposes of filing and arguing additional grounds in support of a Motion for a New Trial and/or in Arrest of Judgment. In the supplemental motion filed by new counsel, he asserted that trial counsel was ineffective for failing to request the trial court to instruct the jury concerning the consequences of a verdict of not guilty by reason of insanity, and for trial counsel’s failure to take specific objection to same at the conclusion of the charge.

Prior to assessing the effectiveness of trial counsel, the threshold question is whether there is arguable merit to appellant’s contention that he was entitled to have his counsel request an instruction on the ramifications of the jury returning a verdict of not guilty by reason of insanity. Commonwealth v. DiVentura, 270 Pa.Super. 471, 411 A.2d 815 (1979). A perusal of the case law indicates that such question is answered by our Supreme Court’s ruling in Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977).

In Mulgrew, a jury returned a verdict of murder of the third degree, carrying a firearm without a license and use of a firearm in a crime of violence. On appeal, trial counsel argued that the lower court erred in failing to charge, as he had requested at trial, that the jury be made aware of the consequences of a verdict of not guilty by reason of insanity. In reversing the judgment of sentence and remanding for a new trial, the Mulgrew Court embraced the thinking of the Circuit Court of Appeals for the District of Columbia in Lyles v. United States, 103 U.S.App.D.C. 22, 25, 254 F.2d 725, 728 (1957), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958), cert. denied, 362 U.S. 943, 80 S.Ct. 809, 4 L.Ed.2d 771 (1962). The following passage was quoted with approval from the Circuit Court of Appeals’ decision in Lyles:

“This point arises under the doctrine, well established and sound, that the jury has no concern with the consequences of a verdict, either in the sentence, if any, or the nature or extent of it, or in probation. But we think that doctrine does not apply in the problem before us. The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. As a matter of fact its meaning was not made clear in this jurisdiction until Congress enacted the statute of August 9, 1955. It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as-accurately as it knows by common knowledge the meaning of the other two possible verdicts.” (Emphasis in original) Commonwealth v. Mulgrew, supra, 475 Pa. at 275, 380 A.2d at 351.

Consistent with the aforesaid, we find appellant’s contention that he was entitled to have the consequences of acquittal by reason of insanity explained to the jury to be of arguable merit. To hold otherwise would render ineffectual the statement in Mulgrew that such instruction “assist[s] the jury in properly determining the guilt or innocence of a defendant . .. [and] reduce[s] the possibility of compromise verdicts of guilty occasioned by a jury’s misapprehension of ‘acquitting’ a defendant by reason of insanity.” Id., 475 Pa. at 276, 380 A.2d at 352.

Finally, having determined that appellant’s claim is of arguable merit, we must now decide if there was some reasonable basis for trial counsel not to have requested such instruction. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). The lower court, after conducting post-trial proceedings at which “[testimony was taken[,]” found as a fact that counsel’s decision not to request the instruction was a tactical one. Such finding was predicated upon the following:

“(8) ... [trial counsel] reason[ed] that if requested the point would probably be granted, that defendant had already been released from Warren State Hospital, that by the testimony of the psychiatrist of Warren State Hospital, the defendant was a very dangerous person, that the jury should not be informed of the consequences of a verdict of not guilty by reason of insanity due to the ability of such a person to be legally released after a relatively short term from treatment. In addition, trial counsel was concerned the District Attorney would request and receive an additional charge that defendant could be released in a year.
(9) The defendant’s counsel . . . belie[ved] that the Court could not commit the defendant in a mental institution for a period to exceed one (1) year without review.
(10) Defendant’s counsel further believed that it was not mandatory that a charge as to the consequences of a verdict of not guilty due to insanity be submitted to a jury under the facts of this case.” (Lower Court Opinion at 6)

We cannot agree with the trial court that the reasons just cited are indicative of some reasonable basis for counsel’s (in)action. If anything, they cast counsel in a role at odds with that of an advocate acting in his client’s best interest. For example, in Point # 8, supra, it is conceded that the charge in question would have been given if sought, yet counsel’s basis for not requesting same was “the ability of . . . [appellant] to be legally released after a relatively short term from treatment.” Such statement, aside from being conclusionary in nature, is not substantiated by any evidence of record. In fact, at trial no one disputed the fact that appellant was a danger to society and would remain that way for a long time. See discussion supra. Thus, under the strictures of the Mental Health Procedures Act (50 Pa.C.S.A. § 7101 et seq. (Supp. 1981-82)), court-ordered involuntary treatment of the appellant, if he were acquitted by reason of insanity (50 Pa.C.S.A. § 7406), would expose him to confinement up to the term of his original sentence for aggravated assault, or longer, if the trial court determined after a yearly review that he still was severely mentally disabled and in need of treatment (50 Pa.C.S.A. § 7304(g)(4)).

As for Point # 10, supra, our review of the lengthy trial record convinces us that counsel’s trial strategy was not to contest the fact that appellant had stabbed Mrs. Cooper, but, instead, to defend on the basis that appellant was legally insane at the time of the assault. We find no fault with this trial strategy, especially in light of the overwhelming evidence against the appellant. However, a necessary corollary to such strategy is the request that an instruction be given on the consequences of the jury returning a verdict of not guilty by reason of insanity. Cf. Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980) (in a murder prosecution, an involuntary manslaughter charge shall be given only when requested, and where the offense has been made an issue in the case and the trial evidence reasonably would support such a verdict); accord Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980). Such conclusion is inescapable, given the “hold[ing]” in Mulgrew “that when insanity is raised as a possible defense to criminal charges, a jury must be instructed concerning the possible psychiatric treatment and commitment of the defendant after the return of a verdict of not guilty by reason of insanity.” (Footnote omitted) (Emphasis added) Commonwealth v. Mulgrew, supra, 475 Pa. at 277, 380 A.2d at 352. Accord Commonwealth v. Brown, 494 Pa. 380, 382, 431 A.2d 905, 906 (1981) (“Mulgrew unanimously held that ‘when insanity is raised as a possible defense to criminal charges, a jury must be instructed concerning the possible psychiatric treatment and commitment of the defendant after the return of a verdict of not guilty by reason of insanity.’ ” (Citation omitted)); Commonwealth v. Miller, 290 Pa.Super. 553, 556, 434 A.2d 1282, 1284 (1981) (“In Mulgrew, our Supreme Court held that a jury must be given an explanation of what would be the consequences of a verdict of not guilty by reason of insanity.”); Commonwealth v. Geschwendt, 271 Pa.Super. 102, 105, 412 A.2d 595, 597 (1979) (CIRILLO, J.) (“Commonwealth v. Mulgrew . . . decided that a trial judge should charge as to the consequences of a verdict of not guilty by reason of insanity.”); see also Anno., 11 A.L.R.3d 737. It is noteworthy that Mulgrew created no exceptions to its holding.

Furthermore, in support of our decision we quote the language in Commonwealth v. Mutina, 366 Mass. 810, 822, 323 N.E.2d 294, 301-02 (1975) that:

“The instant case represents a classic example of the injustice which may occur when such information is withheld from the jury. The jury could have had no doubt that the defendant [committed the crime]. The jury also heard overwhelmingly persuasive evidence that the defendant was insane at the time of the killing and that, for a long time into the future, he will remain a menace to himself and to society. Foremost in their minds must have been a concern for the safety of the community.
In the absence of an instruction from the trial judge as to the effect of a verdict of not guilty by reason of insanity, the jurors sought to render justice both to the defendant and to society [by returning a guilty verdict], but theirs was not a true verdict. ...” (Quoted with approval in Commonwealth v. Mulgrew, supra, 475 Pa. at 277, 380 A.2d at 352)

We find the aforesaid to be descriptive of the facts present in the case at bar. Therefore, in the absence of any reasonable basis for counsel’s failure to request the instruction at issue here, see, e.g., Commonwealth v. Bailey, 480 Pa. 329, 336, 390 A.2d 166, 170 (1978); Commonwealth v. Sullivan, 472 Pa. 129, 164, 371 A.2d 468, 484 (1977); Commonwealth v. Smith, 273 Pa.Super. 441, 444, 417 A.2d 729, 731 (1979); Commonwealth v. Ulatoski, 267 Pa.Super. 521, 524, 407 A.2d 32, 34 (1979), we conclude that appellant is entitled to the relief requested. Commonwealth v. Mulgrew, supra. Consequently, we vacate the judgment of sentence and remand for a new trial.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. It is well settled that the particular course of action chosen by counsel must have some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); see also: Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981); Commonwealth v. Anderson, 490 Pa. 225, 415 A.2d 887 (1980).

Trial counsel, admittedly experienced, was aware of the Supreme Court case of Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), but chose not to request an instruction on the ramifications of the jury returning a verdict of not guilty by reason of insanity. Counsel’s basis for this position was that the jury could well have been outraged that there was no guarantee that this dangerous criminal would be committed, or that he could be released after a short period of time, and therefore would not consider a verdict of not guilty by reason of insanity.

The test is whether the course chosen by counsel was reasonable, not whether other alternatives were more reasonable upon hindsight evaluation of the record. Commonwealth v. Hugney, 491 Pa. 222, 420 A.2d 422 (1980). The tactic employed by trial counsel in this instance had a reasonable basis and certainly was in his client’s best interests. Thus, this is not an occasion of ineffective stewardship.

There was nothing inherently unfair or prejudicial about the trial. A new trial, to correct what turned out to be a tactical error by defense counsel, must be paid for by the taxpayers of this Commonwealth, will burden an already crowded judicial calendar, and will further delay the administration of justice in this particular case. The best interest of the parties, of society, and of the law have already been served by the jury trial previously conducted.

Accordingly, the judgment of sentence should be affirmed.

      . In light of our ruling, we need not consider the other allegations of error raised by the appellant.

      . We agree with the trial judge that, given the claim made, the prudent course of action was taken by appointing counsel other than from the public defender’s office to represent the appellant in post-trial proceedings, inasmuch as trial counsel was employed by said office. See Commonwealth v. Cooke, 288 Pa.Super. 205, 208 n. 5, 431 A.2d 360, 362 n. 5 (1981); see also Commonwealth v. Jennings, 285 Pa.Super. 295, 298 n. 2, 427 A.2d 231, 232 n. 2 (1981). Accordingly, the issue of trial counsel’s ineffectiveness is preserved for review. Commonwealth v. Terrell, 276 Pa.Super. 136, 419 A.2d 133 (1980).

      . Had the court below followed the “Pennsylvania Suggested Standards, Criminal Jury Instructions 5.01(a),” the jury would have been told, inter alia, that
      [W]hen a defendant is found not guilty as the result of insanity, he may be the subject of an immediate court proceeding to commit him to a mental treatment facility and if committed his commitment will continue until he is no longer dangerous to others or to himself. [Emphasis added.]


author: POPOVICH, Judge:

text:
    448 A.2d 1129
    COMMONWEALTH of Pennsylvania v. Edwin J. KANCLE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued April 12, 1982.
    Filed July 30, 1982.

      Edwin J. Kancle, Jr., Pittsburgh, appellant, in pro. per.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from a summary conviction for racing on a highway. Appellant was found guilty by a local magistrate who fined appellant, Edwin Kancle, two hundred and ten dollars. Appellant then appealed this decision to the Court of Common Pleas of Allegheny County for a de novo trial. Following this trial, the court also found appellant guilty of racing and sentenced him to pay a fine of two hundred dollars plus costs. From this sentence, appellant has taken the instant appeal. We reverse and remand for the reasons given herein.

Appellant, in his pro se brief, raises the following issues: (1) whether the evidence was insufficient to establish that the police officer was in a position to see the appellant’s vehicle and another vehicle racing on the highway; (2) whether the trial court erred when it said that the police officer heard and then saw the vehicles; and, (3) whether the police officer’s testimony concerning the fact that the vehicles were speeding was speculative since it was based on the police officer’s experience in determining speed.

We, however, are unable to exercise a review of the record on appeal because appellant was not informed of his right to file post-verdict motions within ten days of the imposition of sentence. Although appellant’s trial was held on July 28,1981, which was more than three weeks after this Court’s decision in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981), the state of the record in the instant case is

“reflective of the confusion which existed in the legal community before our en banc decision in Commonwealth v. Koch, [288] Pa.Superior Ct. [290], 431 A.2d 1052 (1981). That decision made it clear that post-verdict motions are required to be filed in order to preserve issues for appeal after the pronouncement of guilt in de novo trials held upon an appeal from the decision of a district justice. Id. See also Pa.R.Crim.P. 1123 and recent comment thereto. In the present case, we note that there were no post-verdict motions filed. We cannot, however, find a waiver on this basis because the lower court never apprised appellant ... on the record of his right to file post-verdict motions as is mandated that the court do under Pa.R.Crim.P. 1123(c). Commonwealth v. Koch, supra. See also Commonwealth v. Johnston, 292 Pa.Superior Ct. 224, 437 A.2d 16; Commonwealth v. Williams, 290 Pa.Superior Ct. 158, 434 A.2d 179 (1981). Cf. cases with respect to motions to modify sentence under Pa.R.Crim.P. 1405(c), Commonwealth v. Walton, [289] Pa.Superior Ct. [411], 433 A.2d 517 (1981); Commonwealth v. Koziel, [289] Pa.Superior Ct. [22], 432 A.2d 1031 (1981); Commonwealth v. Rush, 281 Pa.Superior Ct. 92, 421 A.2d 1163 (1980). In fact, the lower court, just as the lower courts in Koch, Williams and Johnston improperly pronounced verdict and sentence simultaneously through a written order made subsequent to the conclusion of the de novo trial. This effectively precluded the appellant from having the opportunity to file post-verdict motions which should properly be filed after the verdict is rendered, but before sentence, in this case a fine, is imposed. See Comment to Pa.R.Crim.P. 1123.”
Commonwealth v. Picker, 293 Pa.Super. 381, 383-84, 439 A.2d 162, 163, 164 (1982) (Emphasis added).

Under these circumstances, we will not find that a waiver has occurred.

The judgment of sentence is vacated, and the case is remanded for the filing of post-verdict motions nunc pro tunc within ten days of the remittance of the record in this case. Jurisdiction is relinquished.

      . 75 Pa.C.S.A. 3367.

      . We note that the trial court did not file an opinion in support of its order; however, the trial court’s reasons for its disposition of the case briefly were recited at the close of the de novo trial. In the event that other issues on remand are raised in appellant’s post-verdict motions, we are hopeful that the trial court will insure that the reasons for its order will appear on the record.


author: O’KICKI, Judge:

text:
    448 A.2d 1131
    COMMONWEALTH of Pennsylvania, v. Allen ANDERSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 4, 1979.
    Filed July 30, 1982.

      Colie B. Chappelle, Philadelphia, for appellant.
    Franklin L. Noel, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       President Judge Joseph F. O’Kicki, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   O’KICKI, Judge:

This case arises from a burglary of a building at 327 Cherry Street, “Designers Frank Noffer, Inc.” in Philadelphia by appellant, Allen Anderson, on March 6, 1976. Police were summoned by an eye witness, Thomas Yep, who provided a description of the suspect which was relayed to the officers en route to the scene. Upon arrival, Officer Sebastian Sammartino of the Philadelphia Police Department observed the appellant (who fit the radio description) fleeing the scene. After ordering the appellant to halt, and upon his failure to do so, the officer shot him. A screwdriver was retrieved from the person of the appellant along with a green cap, which had fallen off and which became a source of contention at trial. The appellant was taken to the hospital, where he was questioned. Subsequent to this, the eye witness identified him from photographs as the man he observed entering the burglared building.

Prior to jury selection, appellant’s counsel requested a continuance. This motion, along with various other pretrial motions were denied, becoming a focal point on appeal. Trial by jury commenced and appellant was convicted of burglary and possessing an instrument of crime. He was then sentenced to eight to twenty years on the burglary charge and two and one-half to five years concurrently on the possessory offense. Appellant’s requests for relief in post-verdict motions were denied in an opinion by the Trial Judge. This appeal followed alleging both procedural and substantive error.

Appellant first contends that the in-court identification by the eye witness was constitutionally defective and thus constitutes reversible error. Mr. Yep, the eye witness, was previously shown a single photograph of appellant subsequent to appellant’s arrest and questioning at the hospital. This improper photo identification was suppressed by stipulation of counsel and was not admitted during the trial. However, appellant maintains that Yep’s in-court identification was tainted by the prior showing of this photo and that no independent basis existed to render the in-court identification reliable.

The Suppression Court found as a fact that Yep’s observation of appellant attempting to enter the burglarized building included an adequate facial view, under good lighting conditions for a period of about 5 to 7 minutes from an approximate distance of 20 feet. The court concluded, that this initial, on-the-scene identification by Yep was “clearly reliable, untainted and nonsuggestive and Yep may testify to it at trial.” (Goodheart, J., Findings of Fact and Conclusions of Law, at pp. 2-3).

Considering the eye witness had more than ample opportunity to observe the appellant under more than favorable circumstances which aided his observation, we find no error with the Suppression Court’s holding to allow Yep to identify appellant in court. Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976).

Although the appellant relys on Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978) as a basis for his constitutional objection to the identification, we cannot agree. Bogan's facts were directly opposite to the ease before us in that the eye witness there was not afforded the same opportunity to observe the criminal at the crime scene as Mr. Yep did in this case. In addition, the witness in Bogan had testified that because of the poor conditions under which he observed the crime, he was unable to identify the criminal immediately thereafter.

Appellant next contends that the Trial Court committed reversible error by permitting the Commonwealth to use a suppressed statement for impeachment purposes. This issue arises from the following excerpt of events occurring on March 6, 1976: Following the burglary and appellant’s arrest, he was taken to the hospital and interviewed there by a police officer who asked him four questions. Appellant’s answers to these questions were exculpatory; they were suppressed at the time of the suppression hearing because of the hospital circumstances involved in their elicitation.

However, defense counsel himself first revealed these statements when he cross-examined the officer and, subsequent to this, appellant himself on direct examination testified to the same suppressed statement in his attempt to bolster the theory of his innocence.

For years it generally was the law in the Commonwealth that constitutionally infirm statements which a Suppression Court declares inadmissible cannot be used to impeach a defendant who elects to testify at trial on his own behalf. Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975). However, here the appellant himself chose not only to testify but also to reiterate the factual narrative contained in the statement which was suppressed and claimed by him to be invalid. These circumstances make the instant case directly controlled by Commonwealth v. Mobley, 267 Pa.Super. 29, 405 A.2d 1287 (1979). There, after choosing to testify to the existence and substance of a suppressed statement, the defendant was impeached with said statement. As in Mobley, the appellant chose to “open the door” by disclosing the existence and substance of the suppressed statement and cannot complain now of its use. Mobley, supra, 267 Pa.Superior at p. 32, 405 A.2d 1287.

In addition, because of the similarity between the appellant’s testimony and the suppressed statement, the admission of the statement, if error at all, is error that is harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), Commonwealth v. Cummings, 466 Pa. 332, 353 A.2d 381 (1976).

Appellant next contends that the conduct of the Trial Court denied him a fair trial. Specifically, did the Trial Court’s cross-examination of various witnesses constitute an abuse of its discretion? After a review of the record, we find no merit in this contention.

Questions of a trial judge to a defendant during direct examination which are relevant to the defense, are brief in nature and do not indicate favor or disfavor with the defendant are not improper. Commonwealth v. Rhem, 283 Pa.Super. 565, 424 A.2d 1345 (1980).

Having reviewed the objections raised by appellant with an eye to the entire testimony and notes, we find appellant’s contentions to be patently frivolous. The record in this matter clearly reveals that the conduct of the Trial Court at all times was in accordance with its exalted and dignified position and the high responsibilities it is charged with. Accordingly, since a declaration of mistrial is within the sound discretion of the Court, Commonwealth v. Werts, 483 Pa. 222, 395 A.2d 1316 (1978), and granted only when a bias is fixed in the minds of the jury so as to preclude a fair and objective verdict, Commonwealth v. Williamson, 243 Pa.Super. 139, 364 A.2d 488 (1976), we find the denial of a mistrial proper here.

The Trial Court denied appellant's request for a continuance before the selection of the jury began. Was this an abuse of discretion? The Court’s decision will not be reversed except for a clear abuse of discretion. Commonwealth v. Hughes, 264 Pa.Super. 118, 399 A.2d 694, (1979). Although the appellant contends that his continuance request was based upon his desire to obtain the notes of testimony from the suppression hearing, there is evidence to suggest he had an ulterior motive of avoiding a particular trial judge. Whether we accept his patent first reason over the latent second one, we find the denial of the continuance is not an abuse of the Court’s discretion and was proper. Appellant had ample time (a week) to request continuance rather than on the day of trial, if that were his true reason for the request. The request was untimely, and cannot afford appellant relief. Hughes, supra, and Pa.R.Crim.P. 301. Likewise, judge shopping cannot be encouraged.

The Commonwealth, through the exercise of peremptory challenges, struck certain prospective jurors. It is the appellant’s contention that these jurors were challenged solely on the basis of their race, leading ultimately to a prejudiced jury composed of 10 whites and 2 blacks. The Pennsylvania courts have adhered to the standards set forth in the case of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). (e.g.: Commonwealth v. Christian, 480 Pa 131, 389 A.2d 545 (1978), Commonwealth v. Martin, 461 Pa 289, 336 A.2d 290 (1975).)

The United States Supreme Court in Swain held that a prosecutor’s use of peremptory challenges which resulted in an exclusion of black jurors from a particular jury panel did not violate the 14th amendment, and further, a defendant is not constitutionally entitled to demand a proportionate number of his race on the jury panel which tries him. Swain, supra; Commonwealth v. Jones, 465 Pa 473, 350 A.2d 862 (1976).

In fact, an objection to the composition of a jury panel is proper only if made to the selection process of the prosecutor involved resulting in a studied exclusion of a particular type of person and not to the characteristics of the general panel from which the jury is ultimately chosen. Commonwealth v. Greene, 469 Pa 399, 366 A.2d 234 (1976). The record here, as in Swain, clearly does not demonstrate the kind of systematic exclusion in case after case of all black jury members required by Swain, 380 U.S. at p. 223, 85 S.Ct. at 837. In fact, appellant’s jury did seat 2 blacks on it—per se evidence that the Swain and Jones standard of a fair trial in this regard was not even approached.

Appellant’s counsel attempted to call Officer Bushman as a court witness so that he may cross-examine him concerning his eye-witness statement given at the scene. Appellant’s argument was that since the witness may possibly be hostile or testify in a manner adverse to the appellant, he should not be bound by his testimony. Subsequent to the denial of the request, appellant’s counsel called the officer as his own witness. Even if the denial was improper, appellant’s counsel was permitted to question the witnesses who were called concerning any inconsistencies in the substance of the Officer’s statement to investigators and the record reveals great leeway in developing the direct testimony of Officer Bushman. Thus, the denial was clearly harmless. We find no merit in this contention.

The appellant further contends that it was an abuse of Trial Court’s discretion to deny his motion for mistrial on grounds that the Court’s summary of the evidence in its charge to the jury was improper. We cannot rely upon excerpts taken from the notes of testimony, but rather must take the Judge’s charge as delivered in its entirety. Commonwealth v. Lesher, 473 Pa 141, 373 A.2d 1088 (1977). In doing this, we find that the Trial Judge’s charge impartially discussed appellant’s theory of the case without expressing an opinion on its validity. It is clear from the record that the summary was fair and impartial. Commonwealth v. Stoltzfus, 462 Pa 43, 337 A.2d 873 (1975), and thus cannot supply appellant with a means for appellate relief.

As a corollary, to this, appellant maintains that the Trial Court committed prejudicial error in failing to properly instruct the jury. He contends that the Court’s instruction placed an affirmative burden of establishing a defense upon the defendant. Counsel did not except to this at the close of the jury charge. Therefore, it is considered waived. Commonwealth v. Russell, 459 Pa. 1, 326 A.2d 303 (1974); Commonwealth v. McDonald, 459 Pa 17, 326 A.2d 324 (1974). Further, the two additional objections as to “missing evidence” and “the effect of prior inconsistent statements on the credibility of the witnesses making such statements” (see D.A. Brief p. 7) are not meritorious on appeal. They are dismissed.

Appellant further complains that the Trial Court erred in refusing to take judicial notice of the contents of the complaint. These contents insofar as they were relevant to the charges which defendant was tried on, were testified to by the affiant who signed the complaint. The Court properly refused to take judicial notice of the remaining contents of the complaint or to permit the admission of irrelevant portions (i.e. appellant was charged additionally with resisting arrest which was withdrawn before trial). Evidence is admissible at trial to establish (or tend to establish) a material fact to the case. Commonwealth v. Stewart, 461 Pa 274, 336 A.2d 282 (1975); Commonwealth v. Myers, 439 Pa 381, 266 A.2d 756 (1970). Thus, the additional charges in the complaint were not a proper subject for judicial notice or as admissible evidence. In addition, appellant fails to assert how he was prejudiced by the Court’s refusal of judicial notice, which further indicates his failure to be entitled to relief.

Appellant’s tenth and final contention that the Commonwealth failed to show by clear and convincing evidence an independent origin upon which an in-court identification could be made by eye witness Yep is frivolous and redundant at this point. It is clearly demonstrated by the facts of the case and discussed in detail above that Yep had a prime opportunity to observe appellant at the scene. The Commonwealth’s evidence as to this rose not only to the level of “clear and convincing” but well beyond.

By dealing with each of appellant’s points of appeal in a step-by-step manner, we have clearly demonstrated that they have no merit and do not entitle him to appellate relief.

Accordingly, the judgment of sentence below is affirmed.

Affirmed.

SPAETH, J., concurs in the result.