source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    468 A.2d 775
    COMMONWEALTH of Pennsylvania, Appellant, v. Glen KITE.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1981.
    Filed Nov. 10, 1983.
    As Amended on Reconsideration Dec. 30, 1983.

      Nancy D. Wasser, Assistant District Attorney, Philadelphia for Commonwealth, appellant.
    Phyllis H. Subin, Assistant Public Defender, Philadelphia, for appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   CAVANAUGH, Judge:

The Commonwealth appeals from the order of April 16, 1980, that granted appellee’s motion in arrest of judgment and discharged appellee because his Rule 1100 rights had been violated. For the following reasons, we reverse the order of the lower court discharging the appellee.

On July 20, 1979, a complaint was filed against appellee on charges of theft, robbery, and criminal conspiracy. The run date under Rule 1100 was, therefore, January 16, 1980.

The preliminary hearing for appellee and two co-defendants was scheduled for July 24, 1979; but it was continued until August 7, 1979, so counsel could be appointed for a co-defendant. On August 7, 1979, the co-defendant’s counsel did not appear, so the hearing was continued until August 14, 1979. On the aforesaid date, a co-defendant’s attorney was ill, and the hearing was continued to August 28, 1979. On that date, when a co-defendant was not brought to the courtroom, the Commonwealth moved to sever. The court denied the Commonwealth’s motion and continued the case until September 4, 1979, when the preliminary hearing was finally conducted.

The case was scheduled for a status report and informal discovery on September 27, 1979; however, the case was continued October 17, 1979, because a co-defendant’s attorney was unavailable.

Although trial was scheduled to commence on December 13, 1979, the case was continued to February 5, 1980, because a co-defendant did not appear. A petition to extend under Rule 1100(c) was filed by the Commonwealth on December 14, 1979; and a hearing on the petition was conducted on January 18, 1980.

At the hearing on January 18, 1980, the lower court granted the Commonwealth’s petition and extended the rule to February 7, 1980. The court also excluded, under Rule 1100(d), the 14-day period from July 24, to August 7, 1979. On February 5, 1980, appellee’s case was severed; and he was tried without a jury and adjudged guilty of all charges. Appellee filed a motion for a new trial and a motion in arrest of judgment. The court granted the motion in arrest of judgment and discharged appellee.

Pa.R.Crim.P. 1100(c) provides, in pertinent part, as follows:

At any time prior to the expiration of the period for commencement of trial the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial ... Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced. (Emphasis added).

The Commonwealth argues that the post-verdict court erred in reversing the order of the pre-trial court, which granted appellee’s Rule 1100(c) extension. We agree.

Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), established the requirements with which the Commonwealth must comply before the court may grant a Rule 1100(c) extension:

Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the “due diligence” of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Id., 469 Pa. at 222, 364 A.2d at 1349-1350.

Since there is no dispute that the petition was timely filed, Commonwealth v. Jenkins, 248 Pa.Super. 300, 375 A.2d 107 (1977), the only question to be resolved in this appeal is whether the Commonwealth otherwise exercised due diligence. Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Jenkins, supra; Commonwealth v. Hagans, 242 Pa.Super. 393, 364 A.2d 320 (1976), aff’d 482 Pa. 572, 394 A.2d 470 (1978).

In deciding whether the lower courts acted properly on the Commonwealth’s petition to extend, we must examine the rulings in light of the following principle:

The Commonwealth has the burden, by a preponderance of the evidence, of showing it has met the requirements of Rule 1100(c). Cf. Commonwealth v. Wade, 475 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). Furthermore, in reviewing a hearing court’s ruling that the Commonwealth has met its burden, we consider only the evidence presented by the Commonwealth and so much evidence, as fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Mitchell, supra. Commonwealth v. Ehredt, supra [485 Pa.] at 194, 401 A.2d at 360.

Commonwealth v. Freeman, 280 Pa.Super. 462, 468-69, 421 A.2d 814, 817 (1980).

We also recognize that while it is clear that the unavailability of co-defendant’s counsel is a relevant factor in determining whether an extension should be granted, see Commonwealth v. Jenkins, supra, it has been established that bare statements by the Commonwealth’s attorney as to witnesses’ unavailability, without more, do not establish due diligence within the standards outlined in Pa.R.Crim.P. 1100(c). See Commonwealth v. Ehredt, supra; Commonwealth v. Jackson, 269 Pa.Super. 249, 409 A.2d 873 (1979).

In any event, the district attorney here has done more than make bare assertions of the unavailability of co-defendant’s counsel. In the instant case we are dealing with an uncontroverted matter of record, the transcript of the hearing on the Commonwealth’s petition to extend under Rule 1100, as evidence to establish the Commonwealth’s due diligence. Our review of the entire record indicates the lower court properly relied upon the notes in the Quarter Session file in determining due diligence. See Commonwealth v. Jackson, 269 Pa. at 252-254, 409 A.2d at 875 (1979). The record reflects that the case was listed for trial on four different dates but was continued due to the unavailability of co-defendant’s counsel. Furthermore, the record shows that the Commonwealth had previously been denied its only alternative of severance, albeit at a preliminary hearing stage, by the lower court. Commonwealth v. Hagans, supra. These are facts of record not mere unproven assertions.

Thus the Commonwealth should not have been precluded from retaining the requested extension by the post-trial court. Since the Commonwealth timely filed a petition to extend due to the fact it was precluded from severing by an earlier order, demonstrated due diligence, and appellee was tried at the earliest date following the petition to extend, we find the lower court erred in granting appellee’s motion in arrest of judgment and discharging appellee.

The order of the lower court is reversed and the matter is remanded to the lower court for disposition of outstanding post-verdict motions. Jurisdiction is relinquished.

      . The pertinent section of Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A., states:
      Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
      Rule 1100(a)(2).

      . Pa.R.Crim.P., Rule 1100(d), 42 Pa.C.S.A., states:
      In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
      (1) the unavailability of the defendant or his attorney;
      (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be excluded.

      . The lower court’s opinion correctly holds that the 14-day period from July 24 to August 7, 1979, during which counsel was to be appointed for co-defendant, was not excludable against appellee. See Commonwealth v. Hagans, 242 Pa.Super. 393, 395, 364 A.2d 328, 330 (1976), aff’d, 482 Pa. 572, 394 A.2d 470 (1978).

      . The facts which precluded the Commonwealth from trying appellee within 180 days are an uncontradicted part of the record [Quarter Session file] in this case.
      A hearing court may properly take judicial notice of uncontested notations in the court record in determining whether the Commonwealth has exercised due diligence in attempting to bring an accused to trial. Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983). The record in this matter indicates that Judge Hirsh thoroughly reviewed the notations on the Quarter Sessions file in granting the Commonwealth's extension. Furthermore, we have determined that there was no actual controversy regarding the accuracy of the mentioned notations based upon the text of the extension hearing.


text:
    468 A.2d 778
    In re James M. BARCLAY, Jr., Deborah Martin, Natural Parent. Appeal of Deborah MARTIN.
    Superior Court of Pennsylvania.
    Argued May 25, 1983.
    Filed Nov. 10, 1983.

      Marie Bittner, Pittsburgh, for appellant.
    George R. Kepple, Kittanning, for Barclay, participating party.

      Mark P. Cancilla, Pittsburgh, for Children, participating party.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   CAVANAUGH, Judge:

In this case a petition was filed on November 7, 1980 to adjudicate James M. Barclay, Jr. a dependent under the Juvenile Act, Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. § 6301 et seq. James was born on October 15, 1974, his parents being James M. Barclay and Deborah Martin and at the time of the petition he was approximately six years of age. In order to consider the petition we must review the events that led up to its filing in what the court below characterized as a “pathetic and tragic case.”

In September, 1980, the Allegheny County Children and Youth Services received a report of suspected child abuse from a hospital concerning Georgieanne Waltenbaugh, who was born on December 17, 1979. Deborah Martin is the mother of both James Barclay, Jr. and Georgieanne. The infant girl had extensive bruises on her body which the child’s mother attributed to a fall down the stairs. Shortly thereafter Mercy Hospital in Pittsburgh reported that Georgieanne had suffered second degree burns over twenty-five per cent of her body, apparently as a result of being immersed in scalding water. All of this was brought to the attention of the court by the Allegheny County Children and Youth Services and Georgieanne was placed temporarily in the care of her stepfather’s mother, Margaret Martin, pending an investigation. At this time Deborah Martin was married to Jonathan Martin, this being her third marriage although she was only twenty-one years of age. A petition to have Georgieanne declared dependent was filed in Allegheny County, but prior to the hearing Deborah Martin, Jonathan Martin, and Margaret Martin, (Jonathan’s mother) fled to California taking Georgieanne and James with them. The family assumed fictitious names in California. In order to avoid detection by the authorities while living there, Deborah Martin applied for a driver’s license under the name of “Deborah Ann Linderman.” The authorities located the family in California and returned them to Allegheny County where the three adults were incarcerated. Jonathan Martin committed suicide while in prison on November 6, 1980.

The petition in the instant case pertaining to James was filed on November 7, 1980 by the Allegheny County Children and Youth Services and a hearing was held before Novak, J. of the Court of Common Pleas, Family Division, of Allegheny County. The evidence established that Deborah Martin was first married at the age of fifteen to James Barclay who was the father of James Barclay, Jr. She was subsequently divorced and married James Waltenbaugh. In July, 1980, she divorced Mr. Waltenbaugh and married Jonathan Martin with whom she had been living for several months while married to Mr. Waltenbaugh. In the six years from Ms. Martin’s first marriage she had lived in various places in Pennsylvania, Florida and California.

Deborah Martin had custody of both children from the time they were born until the dependency hearing and her parenting was characterized by her immaturity and lack of care for her children. After the apparent serious abuse suffered by Georgieanne at the hands of her stepfather, a social worker in Allegheny County suggested counselling. Although Mr. Martin agreed to this, Deborah refused such counselling. Subsequently Georgieanne and James were spirited off to California by Deborah and her husband. The evidence established that when the family was in California Mr. Martin administered excessive punishment to James. He also administered corporal punishment to Georgieanne. No serious effort was made by Deborah Martin to protect her children from her husband.

Following the dependency proceedings James M. Barclay, Jr. was adjudicated a dependent. The case was then transferred to Armstrong County for disposition as James had been temporarily placed in the custody of his father, James Barclay, who resides in Armstrong County. A disposition hearing was held in Armstrong County on August 11, 1981. At that hearing James’ father and stepmother, Diana Barclay, testified, as well as two clinical psychologists. Deborah Martin was present but did not testify. James was represented by separate counsel. The evidence established that James functioned in the “dull normal range” and will require specialized training. James did not express to the court a preference for living with either his mother or father, although he indicated to one of the psychologists, Pamela Olsen, that he would prefer to live with his mother. Ms. Olsen testified that she believed that James would be better off living with his mother and she especially did not feel comfortable with the strong emphasis that James’ father and his wife placed on moral and religious values. Both James’ father and his wife were very desirous of having custody of James. His father has been steadily employed for several years. The court, upon completion of the disposition proceedings, ordered, custody to James’ father and granted liberal visitation rights to his mother, Deborah Martin.

Initially we shall determine if James was properly adjudicated a dependent. The Juvenile Act defines a dependent child as follows at 42 Pa.C.S.A. § 6302:

“Dependent child.” A child who:
(1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals;

The Act provides that the petition “may be brought by any person including a law enforcement officer.” 42 Pa.C. S.A. § 6334. In this case it was brought by a case worker for Allegheny County Children and Youth Services, a person properly authorized to bring the petition. We are aware that a dependency petition under the Juvenile Act is not an alternative way for a non-custodial parent to seek custody of a child. In Interest of Theresa E., 287 Pa.Super. 162, 429 A.2d 1150 (1981). In this case the father did not file the dependency petition, although he would have been an appropriate person to do so. Notwithstanding that the ultimate result of the dependency proceeding was to award custody to the father, the action was properly brought in this case.

The Juvenile Act further requires that a finding of dependency be based on “clear and convincing evidence.” 42 Pa.C.S.A. § 6302. In the case of In re A.E.M., 288 Pa.Super. 284, 287, 288, 431 A.2d 1049, 1051, (1981) it is stated:

“Before interfering with a parent’s care or control of a child and ordering the intervention of an agency of the state, a court must first determine that the child is dependent.” In the Interest of Theresa E., [287] Pa.Super. [162, 172], 429 A.2d 1150, 1155 (1981). See 42 Pa.C. S.A. § 6341(a). “[T]he fact of dependency must be proved by evidence that is ‘clear and convincing.’ ” In the Interest of Theresa E., supra, 287 Pa.Superior Ct. at [172], 429 A.2d at 1155. See 42 Pa.C.S.A. § 6341(c). “[I]n determining whether a child is dependent, the hearing judge should not ask what are the child’s ‘best interests’ but whether the child is presently without proper parental care and, if so, whether such care is immediately available.” In the Interest of Pernishek, 268 Pa.Super. 447, 458, 408 A.2d 872, 877-78 (1979) (citing In the Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976)). Accord, In the Interest of Theresa E., supra; In the Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980). A child who has been adjudicated dependent may not be separated from his parents unless such separation is clearly necessary. 42 Pa.C.S.A. § 6301(b)(3); In the Interest of Theresa E., supra; In re Donna W., [284] Pa.Super. [338], 425 A.2d 1132 (1981) (collecting cases).

Applying the above standards, there was clear and convincing evidence to support the adjudication of dependency. James resided continuously with his mother from the time of his birth until she was confined in the Allegheny County jail, shortly before the dependency proceedings commenced. In determining if James was a dependent child because he did not receive proper care or control, the hearing judge had to consider the sort of parental care or custody that he received in the past. In Interest of Clouse, 244 Pa.Super. 396, 368 A.2d 780 (1976). A determination of dependency may not be made in a vacuum, and the court below properly considered not only the extreme abuse that was suffered by James’ half sister, but the lack of proper care for James as well. James and Georgieanne were part of the same household and their mother did little to protect either one of them. The record indicated that Jonathan Martin physically mistreated both James and Georgieanne in California, as well as physically abusing Georgieanne in Pennsylvania. Mrs. Martin described how her husband struck James and her daughter. There was evidence that James was beaten with a belt by his stepfather and that he used a paddle to strike him.

Mrs. Martin stated that she did not want to be “bothered” in California for what was going on in Allegheny County, namely the proceedings for child abuse based on her husband’s allegedly scalding her infant daughter. She also willingly made the decision to move the family to California and testified as follows:

Q. Well, why did you choose to go?
A. Because I had been through two other previous marriages, and I couldn’t — I was only married, like, two month to him, and I just can’t end a marriage at two months.

Mrs. Martin clearly showed more interest in what she perceived to be her own welfare, than in James’ welfare.

The court below carefully reviewed the evidence and made comprehensive findings of fact based on the evidence. James was represented at the hearing by separate counsel. The case of In the Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980) dealt with the review of a finding that a child was a “deprived child,” but the law is the same for reviewing a finding of dependency. “The reenactment of the Juvenile Act substitutes the term ‘Dependent child’ for ‘Deprived child’ but is defined using the same language as the original Act.” In the Interest of Black, 273 Pa.Super. at 542 n. 3, 417 A.2d at 1181 n. 3. The court further stated at 273 Pa.Super. at 543, 417 A.2d at 1181, 1182:

The function of the trial judge and the standard of review to be employed by appellate courts in examining these cases has also been well defined. The hearing judge is to receive evidence from all interested parties and also from objective, disinterested witnesses. In the Interest of Clouse, supra; In the Interest of LaRue, supra. The child should be represented by separate counsel since his interest may be distinct from that of the parents. Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974). The inquiry of the hearing judge should be comprehensive and searching and should produce a decision supported by specific findings of fact and a full discussion of the evidence. Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977); In the Interest of Clouse, supra.
If the hearing judge does not comply with these dictates, we will respond accordingly by remanding the case, for in custody cases the scope of our review is of the broadest nature, and we will not be bound by a finding that is not supported by competent evidence. In re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978); Helman Appeals, 230 Pa.Super. 484, 327 A.2d 163 (1974). If the hearing judge does comply, we must defer to his findings and accord them great weight because he has had the opportunity to see and hear the witnesses, In re Custody of Neal, supra; Clair Appeal, 219 Pa.Super. 436, 281 A.2d 726 (1971), and the question of credibility in juvenile cases, as in all other cases, is for the judge hearing the case to decide. In re Sharpe, 248 Pa.Super. 74, 374 A.2d 1323 (1977); Commonwealth ex rel. Meta v. Cinello, 218 Pa.Super. 371, 280 A.2d 420 (1971). The inability of the reviewing court to nullify the fact-finding of the hearing judge is the fundamental limitation of the broad scope of review of the appellate courts. See Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). (Emphasis added).

While the scope of review in appeals of this nature is quite broad, we may not arbitrarily nullify the properly supported findings of fact of the hearing judge. In this case, we are satisfied that the adjudication of dependency was proper.

Once a child is declared dependent, the court then proceeds to the second stage or dispositional phase of the proceeding. In Interest of Ryan Michael C., 294 Pa.Super. 417, 440 A.2d 535 (1982). This stage of the proceedings was held before President Judge House of the Court of Common Pleas of Armstrong County, as James’ father resided in that county and he had been placed in his father’s temporary custody. James’ mother was present at the dispositional hearing but did not testify. James was represented by his own counsel. Testimony was presented' by two clinical psychologists, Pamela Olsen, and Ralph Wilps, Ph.D. Dr. Wilps did not indicate which parent should be awarded custody but he did discuss the psychological problems that James had and his need of help. Ms. Olsen preferred that custody be awarded to the mother. The court below carefully examined the reports and testimony of Dr. Wilps and Ms. Olsen, but concluded after considering all the testimony, including that of James’ father and stepmother, that his best interests would be served by awarding custody to James’ father, with liberal visitation rights in the mother. Once a child is adjudicated dependent, custody will be awarded on the basis of what is in the child’s best interest. In re Donna W., 284 Pa.Super. 338, 425 A.2d 1132 (1981). The court was favorably impressed with the stable home environment that James would find in his father’s home. The court did not overlook the traumatic experience that James had while residing with his mother and her three husbands, as well as the frequent uprooting of the family by moves to various places. His father had a history of long and steady employment and lived in a stable environment in a small town. The court was also favorably impressed with the stability of the home life that James was enjoying with his father and stepmother. His father stressed the importance of moral and religious principles. We note that Ms. Olsen objected to the fact that James’ father and stepmother were “overly concerned with good and bad” and outside authority adding, peculiarly, that this would make it “difficult for Jimmy to develop his own morality.” These were some of the factors that would have made her feel more comfortable had James been returned to his mother.

This type of case is most difficult for an appellate court which can be guided only by the printed record. The judges in two courts below saw and heard the witnesses, and we are not able to say that the order which awarded custody to the father with liberal temporary custody to the mother was incorrect.

Order affirmed.

      . In order to clarify the relationships in this case the following should be noted. Deborah Martin as of the dates of the hearings in this case had been married three times and her husbands were, successively, James M. Barclay, James Waltenbaugh and Jonathan Martin. James M. Barclay was the father of James M. Barclay, Jr. Mrs. Martin refused to identify the father of Georgieanne Waltenbaugh, although it was not her second husband, James Waltenbaugh, whom she described as Georgieanne’s legal father but not her biological father. Margaret Martin is the mother of Jonathan Martin and the stepgrandmother of Georgieanne Martin.

      . In Ms. Olsen’s detailed report she states inter alia:

      IMPRESSIONS: I felt that Jamey and Diana had prepared for my visit, and this communicated to me that they care. They are obviously making a concerted effort to provide an adequate home for Jimmy, and to impart to him a system of values and correct behavior. There is much to say for the consistency and stability that they have provided for him, and could continue to provide in the future. However, I felt that they are overly concerned with good and bad and with outside authority in a way that makes it difficult for Jimmy to develop his own morality, and therefore, his own personality, in accordance with his own experiences and feelings. My sense is that Jimmy must look to them and please them in too many very specific ways. It is almost as if he should not even think about certain things (e.g., hate, anger, sexual fantasies), or decide for himself what kinds of traits he would like to develop in himself. I fear that he might give up thinking for himself or investing deeply in his own feelings and desires altogether, since along with the "good” feelings and thoughts come the bad, and these are unacceptable. Although this is an issue for any child, I think it might be of special importance to Jimmy, who is presented, by virtue of his parents different values and the many confusing experiences to which he has been exposed, with an especially difficult task of making sense of life and making choices about what kind of a person he wants to be.
      Under recommendations she stated:
      4. I personally feel more comfortable at the present time with Jimmy being returned to his mother to live. There are several reasons for this. First, I am not comfortable with the way in which they separated, which I feel must have been very confusing to and difficult for Jimmy. I believe that he needs to be there with her again on a daily basis in order to reestablish and rework his relationships with his mother and his sister. Secondly, I am more comfortable with the way in which Debby interacts with Jimmy at this point in his life. I feel that she can best provide him with a more open structure in which he can begin to sort out and express who he is as an individual. Finally, I feel that this is the option with which all four parties can most easily live. Jimmy has consistently communicated to his caseworker that he wishes to be with his mother. Additionally, I feel that Diana has been under quite a bit of stress in trying to deal with his many problems. Although Jamey would be disappointed by this decision, I feel that he could live with it because he understands the difficulty of Diana’s position. This decision would be contingent upon Debby being able to maintain the stability that she presently demonstrates, and upon her being able to follow through on recommendations for psychotherapy and any educational recommendations put forth by Dr. Wilps.
      5. Jamey and Diana should continue to maintain the positive relationship that they have developed with Jimmy. They clearly love him and have much to give him. Jimmy could continue to benefit from frequent involvement with them, preferably modified somewhat in accordance with recommendations one through three above.
      6. The case should continue to be monitored by Children and Youth Services for a period of at least six months.

      . The order of the Court of Armstrong County also provided that James should remain under the protective supervision of the Armstrong County Children and Youth Services and that James’ parents and the agency shall cooperate to address the child’s potential learning disability and his needs for psychotherapy.


author: MONTGOMERY, Judge:

text:
    468 A.2d 784
    Howard BECKMAN, Appellant v. VASSALL-DILLWORTH LINCOLN-MERCURY, INC., and Lincoln-Mercury, Division of Ford Motor Company.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1983.
    Filed Nov. 10, 1983.

      Lawrence Pauker, Norristown, for appellant.
    Amy B. Ginensky, Philadelphia, for appellees.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant action was instituted in the lower court by the Plaintiff-Appellant, Howard Beckman, against the Defendant-Appellees Vassall-Dillworth Lincoln Mercury, Inc. (hereinafter referred to as “Vassall-Dillworth”), an automobile dealership, and Lincoln-Mercury, Division of Ford Motor Company (hereinafter referred to as “Ford”). The Plaintiff, alleging a breach of an agreement for the sale of a new automobile, sought equitable relief in the nature of an order for specific performance, as well as damages. He files the instant appeal to our court from an order of the lower court which granted a motion for summary judgment filed by Ford.

Our scope of review in cases involving the review of summary judgments is very clear. As our Court stated in Husak v. Berkel, Inc., 234 Pa.Super. 452, 458, 341 A.2d 174, 177 (1975):

“Summary judgment is made available by Pa.R.C.P. No. 1035, 12 P.S. Appendix, when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. This severe disposition should only be granted in cases where the right is clear and free from doubt. To determine the absence of genuine issue of fact, the court must take the view of the evidence most favorable to the non-moving party, and any doubts must be resolved against the entry of the judgment.” (Citations omitted.)

The pertinent facts of record, read in the light most favorable to the Appellant, shows that on December 14, 1978, the Appellant and the Defendant Vassall-Dillworth entered into a written agreement for the Appellant’s purchase of a 1979 Lincoln Continental automobile. The agreement provided for a purchase price of $12,286.00. The agreement contained the following relevant “no agency” provision:

“It is understood that there is no relationship of principal and agent between the dealer and the manufacturer and that the dealer is not authorized to act, or attempt to act, or represent himself, directly or by implication as agent of the manufacturer, or in any manner assume or create, or attempt to assume or create any obligation on behalf of or in the name of the manufacturer.”

The Plaintiff maintained that approximately four weeks after the agreement was executed for the purchase of the automobile, when the Plaintiff inquired about the car, he was advised by Vassall-Dillworth that the order agreement could not be found so that no car had then been ordered for him. However, he alleges that the dealer asserted a willingness to order another car, but at a price different from the price originally agreed to between Plaintiff and the dealer.

After various preliminary procedural problems not relevant to this appeal were resolved in the lower court, Ford filed an Answer and New Matter. The Appellant filed a Reply to New Matter, and discovery proceedings followed. On May 21, 1981, Appellee Ford filed a Motion for Summary Judgment. The Appellant filed responses to that Motion, and after argument before the lower court, an order was entered granting summary judgment.

The lower court determined that there were no genuine issues of material fact in dispute and that Ford could not be held liable for any breach of contract on Plaintiff-Appellant’s theory that Ford was a principal of the dealer Defendant, Vassall-Dillworth. In reaching this conclusion, the lower court determined that the “no agency” provision of the sales agreement, recited above, precluded any finding of a principal-agent relationship between the manufacturer and the dealer. The lower court rejected Appellant’s claim that Ford failed to raise the lack of agency defense properly in its pleadings. Further, the court found no merit in the Appellant’s contentions that Ford’s possible liability could be based upon the Pennsylvania Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, No. 387, § 1, as amended by the Act of November 24, 1976, P.L. 1166, No. 260, § 1, 73 P.S. § 201-3.1, and the regulations issued pursuant to that statute. The lower court also determined, contrary to the Appellant’s contentions, that the exclusion of agency clause was not unconscionable, and that the Appellant would not be entitled to equitable relief in the nature of specific performance, as he had failed to demonstrate the absence of an adequate remedy at law.

The Appellant raises several contentions of error on this appeal. He first argues that the lower court should not have addressed the Appellee’s defense based upon the no agency provision of the agreement, as it was not pleaded as New Matter, pursuant to Pa.R.C.P. 1030 and 1045(b). He maintains that the failure to so plead resulted in the waiver by Appellee of this defense, which was raised for the first time in Ford’s Motion for Summary Judgment.

This contention does not appear to have been raised by the Plaintiff in his written Answer to Ford’s motion for summary judgment, and the lower court does not allude to it in its Opinion. Even if we assume that the Plaintiff raised it in a timely manner in the lower court, and that it was not thereby waived, we nevertheless find no substantive merit to the claim. Rule 1030 does not specifically require one to raise a “no-agency” defense affirmatively in New Matter. Our Court has explained that an affirmative defense is distinguished from a denial of the facts which make up the plaintiffs cause of action in that an affirmative defense will require an averment of facts extrinsic to the plaintiffs claim for. relief. Lewis v. Spitler, 266 Pa.Super. 201, 209, 403 A.2d 994, 998 (1979). See also Watson v. Green, 231 Pa.Super. 115, 331 A.2d 790 (1974). In this case, the agreement containing the “no-agency” clause was appended to the Appellant’s Amended Complaint, and alleged to be a part of that pleading. Ford’s Answer to the Amended Complaint specifically denied that Vassall-Dillworth was its agent. Accordingly, Ford properly responded with a denial in its Answer to a facts intrinsic in the Amended Complaint. Further pleading of the same response, by stating it as an affirmative defense in New Matter, was not necessary under the particular facts of the instant case. Accordingly, we find no merit in the Appellant’s initial claim of error.

Next, we examine several arguments raised by the Appellant in connection with his contention that the “no agency” provision of the sales agreement was unconscionable. Initially, we address the claim that the lower court was mandated to hold a full evidentiary hearing on the issue of unconscionability. The Act of November 1, 1979, P.L. 255, No. 86, § 1, as set forth in 13 Pa.C.S.A. § 2302, which applies to this issue, provides:

(a) Finding and authority of court. — If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made, the court may:
(1) refuse to enforce the contract;
(2) enforce the remainder of the contract without the unconscionable clause; or
(3) so limit the application of any unconscionable clause as to avoid any unconscionable result.
(b) Evidence by parties. — When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.

It appears to be an issue of first impression in the appellate courts of our Commonwealth as to whether a claim of unconscionability may be decided during summary judgment proceedings or whether a full hearing is mandated. Section 2302, recited above, does not specifically require that an evidentiary hearing be held, but merely that the parties be afforded a reasonable opportunity to present evidence. In the instant case, we note that the lower court had the benefit of affidavits and deposition testimony when it ruled upon the motion for summary judgment.

While we have found no Pennsylvania appellate precedent on this point, support for the lower court’s refusal to schedule an evidentiary hearing may be found in the decision of the United States District Court in Stanley A. Klopp, Inc. v. John Deere Co., 510 F.Supp. 807 (E.D.Pa.1981). In that case, it was held that unconscionability is a question of law for the court and as long as no issue of material fact exists, a court may conclude on a motion for summary judgment that as a matter of law a contract or a contract clause is enforceable despite an allegation of unconscionability. Further support for such a procedural approach is evident in Earl M. Jorgensen Co. v. Mark Construction, Inc., 56 Haw. 466, 540 P.2d 978 (1975) and Block v. Ford Motor Credit Co., 286 A.2d 228 (D.C.App.1972). Based upon our reading of the statute and our agreement with the approach taken in the cases cited above, we conclude that the lower court is not mandated in all cases to hold a full evidentiary hearing when an unconscionability claim is raised in the context of a motion for summary judgment. Further, for reasons explained more fully below, we find that the lower court did not err in refusing to hold an evidentiary hearing on the unconscionability claim of Appellant in the particular circumstances of the instant case, as the record before the court provided sufficient evidence to permit the court to render a decision on the issue of unconscionability.

In connection with his contention that a hearing was mandated on the question, the Appellant also maintains that the lower court erred in finding that the “no-agency” clause was unconscionable. The Appellant supports his position by referring us to an affidavit he submitted to the lower court in opposition to the Appellee’s request for summary judgment. In that document, he averred that when he was given the contract for signature, he was “never told or made aware” of the clause on the back of the agreement setting forth the “no-agency” language. This, he argues, presented ample evidence to support his unconscionability claim, and to show that the agreement was a contract of adhesion.

We find this position unconvincing. We must initially note that while the Appellant may not have been “told or made aware” of the print on the back side of the agreement, he nevertheless admitted in a deposition that he had read the whole contract before signing it. With regard to his claim of unconscionability, we recognize the rule that a contract or a clause in a contract is to be considered unconscionable if there is “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other.” See Witmer v. Exxon Corp., 495 Pa. 540, 551, 434 A.2d 1222, 1228 (1981), citing Williams v. Walker-Thomas Furniture Company, 350 F.2d 445, 449 (D.C.Cir.1965). We agree with the finding by the lower court that the Appellant submitted no evidence to show either an absence of meaningful choice on his part or any term which was unreasonably favorable to the Appellee. To accept the Appellant’s position in this case, in the absence of any proof, we would have to hold that every exclusion of agency clause is per se unconscionable. Such a declaration would clearly be improper. Thus, in the absence of any evidence to support his claim, we reject the Appellant’s assertion of unconscionability.

We also find a lack of merit in the argument that the lower court erred when it found no genuine issue of fact with regard to the intention of the parties at the time of the signing of the contract. While the Appellant claims he did not want the “no-agency” clause to be a part of the contract, he has not alleged fraud,- mistake or other unusual circumstances to explain the presence of that provision in the agreement he read and signed. In the absence of proof of such unusual conditions, courts will enforce contracts as written. National Cash Register v. Modern Transfer Co., Inc., 224 Pa.Super. 138, 302 A.2d 486 (1973); see also Mellon Bank N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001 (3rd Cir.1980). Not only did the Appellant not allege or prove fraud or other excusing conditions, but the record showed that he was an experienced businessman, equipped to understand the meaning of the terms of the agreement he signed. Moreover, it is well-established that the written terms of a contract constitute the agreement between the parties and its terms cannot be added to nor subtracted from by parol evidence. Kattelman v. Sabol, 425 Pa. 197, 228 A.2d 379 (1967). All preliminary negotiations, conversations and verbal agreements must be considered to be merged into and superseded by the subsequent written contract. Thus, it is evident, in the absence of allegations or proof of fraud, mistake, or the like, that the lower court was justified in finding no genuine issue of fact as to the intention of the parties when the contract was signed.

The Appellant next argues that the lower court erred in finding no genuine issue existed for trial on his contention that Ford violated the Unfair Trade Practices and Consumer Protection Law and the Rules and Regulations promulgated pursuant to that Act. The . Law, Act of December 17, 1968, P.L. 1224, No. 387, as amended by the Act of November 24, 1976, P.L. 1166, No. 260, in Section 3.1 (73 P.S. § 201-3.1) provides that the Attorney General may adopt rules and regulations necessary for the enforcement and administration of the Act, and that such rules and regulations shall have the force and effect of law. Pursuant to that authority, the following Rules and Regulations were adopted, applicable to manufacturers in the automotive industry:

With respect to any manufacturer, the following shall be considered unfair methods of competition and unfair or deceptive acts or practices:
(3) To increase prices of motor vehicles which the dealer had ordered for private retail consumers prior to the dealer’s receipt of the written official price increase notification. A sales contract signed by a private retail consumer shall constitute evidence of each such order.

After reviewing the record, we find that the Appellant failed to present any evidence which, if true, would establish a violation of this Rule or a cause of action under it. The only evidence that Ford had increased prices was the hearsay statement, in the Appellant’s affidavit and in his deposition testimony, that a representative of the dealer told him that there was no record of his original order, but that the dealer would readily place an order for the vehicle he wanted, however at an increased price because of price increases pronounced by Ford after the Appellant had placed his original order. As discussed above, the lower court was justified in finding that the dealer, based upon the contract, could not be considered an agent of Ford. Thus, his hearsay statements could not constitute an admission or other evidence against Ford. Despite an opportunity to' do so, the Appellant never employed discovery to determine the date of receipt by the dealer of any “written official price increase notification.” Moreover, while the Appellant did possess a copy of a sales contract, which, under the Rule, constitutes “evidence” of an “order”, he testified in his deposition that the car had already been ordered by the dealer from Ford for the dealer’s own stock, and further, that he believed that the dealer had never submitted his order to Ford. Thus, it is clear that though the order constituted “evidence” under the Rule, the record before the lower court demonstrated facts obviating any finding of a violation of the Rule. More specifically, the record demonstrated that the car was not ordered by the dealer for the customer, but rather had already been on order from Ford for the dealer’s own stock. Additionally, the Appellant’s own testimony negated the other “evidence” that Ford had ever received the order. Finally, we cannot ignore the absence of any evidence as to any written notification of price increases which may have been made by Ford or received by the dealer. It is apparent that the lower court did not err in rejecting the claims of the Appellant based upon the Unfair Trade Practices and Consumer Protection Law, and the Rules and Regulations promulgated pursuant to that statute.

The Appellant next contends that the lower court acted incorrectly in holding that the Appellant was not entitled to specific performance because he failed to show that he had no adequate remedy at law. Although the lower court acted sua sponte in this matter, it has been held that a court may act upon its own motion to dismiss such a request for equitable relief when specific performance would not be appropriate. Easton Theatres Inc. v. Wells Fargo Land and Mortgage Co., 265 Pa.Super. 334, 401 A.2d 1333 (1979). It is also clear that an order for specific performance is inappropriate where the moving party has an adequate remedy at law. Roth v. Hartl, 365 Pa. 428, 75 A.2d 583 (1950). Our Court has held that specific performance is a proper remedy when the subject matter of an agreement is an asset that is unique or one such that its equivalent cannot be purchased on the open market. Tomb v. Lavalle, 298 Pa.Super. 75, 444 A.2d 666 (1981); see also the Act of November 1, 1979, P.L. 255, No. 86, § 1, 13 Pa.C.S.A. § 2716. In this case, the record shows that the Appellant was given an opportunity by the dealer to purchase the automobile he wanted, but at a higher price. It may not be ignored that the Appellant could also have sought to purchase the same vehicle from another source. His remedy in such circumstances was to seek damages for any difference between the original order price and the actual purchase price he paid. See the Act of November 1, 1979, P.L. 255, No. 86, § 1, 13 Pa.C.S.A. § 2713. Because the subject matter of the contract was not unique, and because it is obvious that an adequate remedy at law was available, we agree with the lower court’s rejection of the Appellant’s demand for specific performance.

We next examine the contention that the “no-agency” clause was ambiguous and must be construed against the Appellee. We reject this claim summarily. The clause, as quoted earlier in this Opinion, is clear and susceptible to only one interpretation. That is, that the dealer was not an agent of the manufacturer, and had no authority to act as its agent. We find no merit to the Appellant’s arguments to the contrary, and no basis for construing any aspect of the clause against the Appellee.

We also find without merit the contention by the Appellant that the lower court erred in not finding an oral or implied contract with the dealer which did not contain a “no-agency” provision as to Ford. The lower court correctly found that such a contract, covering the sale of goods valued in excess of $500.00, had to be in writing to be enforceable. See the Act of November 1, 1979, P.L. 255, No. 86, § 1, 13 Pa.C.S.A. § 2201.

The final contention of the Appellant is that the lower court acted incorrectly in failing to consider factual matters which he claims established the existence of a principal and agent relationship between Ford and the dealer. In this regard, the Appellant cites evidence indicating that Ford made substantial capital contributions to the dealer and owned a two-thirds of the stock of the dealership. In the instant case, there is a complete absence of proof of express, implied or apparent authority from Ford to have the dealer act as its agent. To the contrary, the evidence of the unambiguous no-agency clause in the Sales Agreement mitigates against such a finding. Further, the Appellant after reading the whole contract, including that clause, signed it. The same document has been offered as the very foundation for his suit. Having already rejected the unconscionability and other challenges to the “no-agency” clause in the contract, we cannot ignore its validity and the Appellant’s agreement to be bound to it. He cannot avoid his clear acquiescence that there was no principal-agent relationship by his suggestion of ownership or control, while at the same time basing his claims on the remaining aspects of the same contract. We therefore reject his final claim of error.

The order of the lower court is hereby affirmed.

      . Vassall-Dillworth ceased business in March, 1979, and a default judgment was entered against it in this litigation in August, 1979. Ford remains as the only active party defendant in the case.

      . Rule 1030 states:
      "All affirmative defenses, including but not limited to the defenses of accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel failure of consideration, fraud, illegality, immunity from suit, impossibility of performance, laches, license, payment, release, res judicata, and waiver and, unless previously raised by demurrer and sustained, the defenses of statute of frauds and statute of limitations, shall be pleaded in 'a responsive pleading under the heading ‘New Matter’. A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading.”
      Rule 1045(b) states:
      "All affirmative defenses, including but not limited to those enumerated in Rule 1030, and the defenses of consent, qualified privilege, fair comment, truth and justification, and, unless previously raised by demurrer and sustained the defenses of statute of limitations and statute of frauds, shall be pleaded under the heading 'New Matter’. A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading. The defenses of contributory negligence and assumption of risk need not be pleaded. A plaintiff who fails to file a reply to averments of the defendant’s new matter shall be deemed to admit all such averments other than averments relating to contributory negligence or assumption of risk.”

      . Our Court has noted that the right of amendment has always been liberally granted in Pennsylvania. See Pugh v. Bankers Mutual Insurance Co., 206 Pa.Super. 136, 211 A.2d 135 (1965); Pellegrine v. Home Insurance Co., 200 Pa.Super. 48, 186 A.2d 662 (1962). Thus, in this case, where it does not appear that any prejudice would have resulted to the Appellant from the granting of such permission, Ford would have properly been permitted to amend its response to plead the "no-agency” defense under New Matter.

      . It has been held that in the absence of proof of fraud, the failure to read a contract one signs is an unavailing excuse or defense, and cannot justify an avoidance, modification or nullification of the contract or any provision thereof. Estate of Brant, 463 Pa. 230, 344 A.2d 806 (1975). See also, Stanley A. Klopp, Inc. v. John Deere Co., supra.

      . See 37 Pa.Code § 301.3.

      . The Restatement of Agency, Second, provides, in § 150:
      “If an integrated contract by its specific terms excludes the principal as a party, extrinsic evidence is inadmissible to show that he is a party; if the integrated contract by its specific terms makes the principal a party, extrinsic evidence is not admissible to show that it was agreed that he should not become a party.


author: HESTER, Judge:

text:
    468 A.2d 791
    COMMONWEALTH of Pennsylvania v. Charles E. MOORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 18, 1983.
    Filed Nov. 10, 1983.
    Petition for Allowance of Appeal Denied Feb. 29, 1984.

      Margaret M. Boyce, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, BROSKY and BECK, JJ.
   HESTER, Judge:

Before us is an appeal from an Order of the Court of Common Pleas, Philadelphia County, dated August 20, 1981, denying appellant’s petition for relief under the Post Conviction Hearing Act (PCHA). 42 Pa.C.S.A. § 9541 et seq.

On October 7, 1976, appellant entered a guilty plea on two Bills of Indictment charging him with possession, manufacture or delivery of controlled substances, heroin and methamphetamines. Imposition of sentence was deferred with appellant’s consent and sentencing was set for January 31, 1977. A condition of the plea agreement required appellant to cooperate with several named narcotics officers in the apprehension and prosecution of other drug suppliers. In exchange for such cooperation, appellant was to receive a recommended sentence of probation. Appellant was advised, in the event that his cooperation was placed in issue by the Commonwealth, that he could withdraw his plea if the trial judge determined that he had cooperated as promised. Appellant was further advised, however, that if it was determined that he failed to cooperate, imposition of maximum sentence could result. Shortly following the entry of the plea, an issue with respéct to appellant’s cooperation did arise. At a hearing on June 22, 1977, the court determined that appellant had failed to comply with the terms of the plea agreement. On August 25, 1977, the court imposed sentences of six to twelve years on each bill.

Appellant, while represented by trial counsel, did not file a petition to withdraw the guilty plea either prior or subsequent to sentencing. Appellant did, however, while represented by trial counsel, take a direct appeal to this Court. We affirmed judgment of sentence in our per curiam order. Commonwealth v. Moore, 266 Pa.Super. 631, 405 A.2d 550 (1979). We noted in our memorandum in support of our order that appellant’s sole basis on direct appeal was the alleged unknowing and involuntary aspects of the plea. We found that appellant’s failure to challenge the voluntariness of his guilty plea by means of a petition to withdraw the plea in the trial court prior to taking the direct appeal resulted in a waiver of the alleged defects.

In the case before us, appellant once again seeks our review of the alleged unknowing and involuntary aspects of his plea through an allegation of ineffectiveness of trial counsel.

In his amended PCHA Petition filed by counsel other than original trial counsel, appellant asserted a myriad of contentions which included a general allegation of ineffectiveness of trial counsel, a claim that the guilty plea was involuntary and unlawfully induced, a claim that the lower court failed to advise appellant of his right to withdraw his plea, a claim that after-discovered evidence entitled appellant to a new trial, and a claim that the sentencing judge failed to comply with Rule 1405 Pa.R.Cr.P. Relief requested by appellant was a granting of a new trial or a reconsideration of his sentence.

At the PCHA hearing, Judge Edward J. Blake conducted a full evidentiary hearing which included testimony by appellant and trial counsel. Among the evidence considered by the PCHA court was the extensive and methodically conducted guilty plea colloquy. At the conclusion of the hearing, the PCHA court found that the guilty plea was valid and knowingly and voluntarily entered, that appellant was not deprived of competent counsel, that no after discovered evidence was shown justifying the withdrawal of the plea and that the sentencing judge had fully complied with Pa.R.Cr.P. 1405. Thus, the PCHA court denied appellant’s request to withdraw his plea and permit a new trial since it concluded that appellant had failed to meet his burden of showing prejudice in the order of manifest injustice. Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973).

Appellant contends in this appeal from the denial of his amended PCHA petition that (1) his trial counsel was ineffective; (2) he did not enter a knowing and voluntary plea; (3) the trial court failed to advise him of his right to withdraw his guilty plea; and (4) the trial court failed to provide him with sufficient notice of the June 22, 1977 hearing. We find appellant’s contentions meritless.

In considering a claim of ineffectiveness, we must first determine whether the underlying issue is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If the issue is of arguable merit, we must then consider whether the course chosen by counsel had some reasonable basis designed to effectuate his client’s interest. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Appellant argues that trial counsel was ineffective for failing to argue a motion to suppress which he had filed prior to the guilty plea colloquy.

From the record before us, we are not certain that arguing the motion would have been fruitless since the record does not contain the search warrant, affidavit of probable cuase or the complete testimony relating to the circumstances surrounding the search. However, even if we assume that there was arguable merit to the motion, we are convinced that trial counsel was not ineffective for failing to pursue it. At the PCHA hearing, trial counsel testified that the likelihood of success on the motion was not good. (PCHA Hearing 7/1/80, N.T. 37-38). He also testified that though the motion may have had some merit, he believed that the terms of the plea bargain were quite favorable. (PCHA Hearing 7/1/80, N.T. 37-38).

Since counsel sought to avoid the incarceration of appellant and a violation by appellant of a drug probation in an unrelated case; and, appellant in fact received a favorable plea bargain, trial counsel’s choice clearly had some reasonable basis designed to effectuate appellant’s - interests. Commonwealth ex rel. Washington v. Maroney, supra.

Appellant contends that trial counsel was ineffective for not filing a motion to withdraw the plea prior or subsequent to sentencing.

At the PCHA hearing, trial counsel admitted that he did not file a petition to withdraw the plea following the June 22, 1977 hearing (and prior to sentencing on August 25, 1977). Accordingly to counsel,

“I [wrote] to Mr. Moore on July 1, 1977. I believe that letter is already in evidence. I said: ‘Dear Mr. Moore: I’ve received a portion of the Notes from your guilty plea hearing and it is apparent that you did reserve your right to withdraw the guilty plea and go to trial if you were found uncooperative. Please advise me whether or not you wish to go to trial.’
Q. Did you ever hear from Mr. Moore?
A. Apparently not. I don’t believe that I did because I wrote him another letter on August 11, 1977 and indicating: “On July 1, 1977, I wrote to you and requested to know whether or not it was your desire to proceed to trial in your case before Judge Marutani since the Commonwealth had indicated that you had failed to cooperate with your undercover operation. At the time of the hearing on your alleged failure to cooperate you indicated it was your desire to go to trial. The matter is now pending waiting your decision. Please contact my office as soon as possible so that we may proceed with the case.”
(PCHA Hearing 7/1/80, N.T. 46-47).

Appellant testified that he received the letters and responded to them by telephone calls placed from the law library in Holmesberg prison. (PCHA Hearing 7/1/80, N.T. 22-23). The PCHA court, after evaluating the testimony, resolved the credibility issue in favor of trial counsel, It is well-settled that the credibility of witnesses in PCHA proceedings is exclusively within the province of the hearing court. Commonwealth v. Riddick, 492 Pa. 430, 424 A.2d 1266 (1981); Commonwealth v. Alston, 473 Pa. 40, 373 A.2d 741 (1977). Moreover, in reviewing the PCHA court’s determination, we are constrained from engaging in a de novo evaluation of testimony. Commonwealth v. Clayton, 496 Pa. 492, 437 A.2d 1147 (1981). The record before us supports the PCHA court determination. According, we do not find trial counsel ineffective for failing to file a motion to withdraw the plea prior to sentencing.

With respect to trial counsel’s failure to file a post-sentence petition to withdraw the plea, we preliminarily note that there is “no requirement in our law that every attorney who has represented a criminally accused during a guilty plea proceeding file after its acceptance a petition to withdraw the plea.” Commonwealth v. Ford, 491 Pa. 586, 593, 421 A.2d 1040, 1043 (1980). If a post-sentence petition to withdraw the guilty plea “can be said to have been a fruitless act, trial counsel will not be held ineffective for failing to file such a petition.” Id., 491 Pa. at 594, 421 A.2d at 1044.

It is firmly established that the standard for granting a post-sentence petition to withdraw a guilty plea requires a showing in the order of “manifest injustice.” Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982) ; Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973). A showing of “manifest injustice” would occur when the criminally accused demonstrates that the plea was not voluntary. Commonwealth v. Shaffer, supra; Commonwealth v. Starr, supra. Thus, in determining whether trial counsel’s failure to file a post-sentence petition constitutes ineffectiveness we must address whether appellant’s plea was tendered involuntarily.

In analyzing this question we are aided by an extensive record, which includes the PCHA hearing testimony of appellant and trial counsel, the PCHA court opinion, the transcript of the guilty plea colloquy, the transcript of the June 22, 1977 hearing, and the opinion of the trial and sentencing judge. At the PCHA hearing, appellant was given the opportunity to present reasons to justify the withdrawal of his plea. The PCHA court found that appellant tendered his plea voluntarily as a matter of fact and concluded as a matter of law that the plea was valid. We concur with the PCHA court finding.

The guilty plea colloquy conducted by the trial court was adequate and extensive. Appellant was advised that he would receive a sentence of probation provided he cooperated with the named drug officers (Guilty Plea Colloquy 10/7/76, N.T. 7-9). He understood that imposition of his sentence was to be deferred (Guilty Plea Colloquy 10/7/76, N.T. 11). Appellant was fully advised that his failure to cooperate could merit imposition of a maximum sentence (Guilty Plea Hearing 10/7/76, N.T. 9-10). Appellant understood he could withdraw his plea in the event that the Commonwealth believed that he was not cooperative and the trial judge determined that he was. (Guilty Plea Colloquy 10/7/76, N.T. 10-11). At the hearing of June 22, 1977, the trial judge found that appellant had utterly failed to cooperate and proceeded to impose sentence.

From the foregoing, we are convinced the plea was tendered voluntarily and consequently, agree with the PCHA court’s determination that appellant failed to evidence a showing to correct a “manifest injustice.” See, Commonwealth v. Shaffer, supra; Commonwealth v. Starr, supra. As such, we find that trial counsel was not ineffective for having failed to file a motion to withdraw which would have been fruitless. Commonwealth v. Ford, supra.

Appellant next asserts that trial counsel was ineffective for failing to raise all possible issues in the prior direct appeal to this Court. Appellant did not raise this issue either in his amended PCHA petition or at the PCHA proceeding and it is therefore waived. Commonwealth v. Zillgitt, supra. Even if this issue had not been waived, all contentions alleged therein lack merit.

Appellant contends that trial counsel failed to argue in his direct appeal an issue with respect to the sufficiency of the evidence, failed to raise the issue of whether the trial court advised him of his right to withdraw his guilty plea and failed to attack his own ineffectiveness on direct appeal. With respect to the first claim, trial counsel cannot be deemed ineffective since, from a guilty plea, an accused may challenge only the voluntariness of the plea, the legality of the sentence imposed and the competency of counsel. Commonwealth v. Czapla, 287 Pa.Super. 335, 430 A.2d 313 (1981). With respect to the second claim, the trial court did properly advise appellant of his right to withdraw his plea. With respect to the third claim, it is a frivolous argument since trial counsel was not ineffective or in the alternate, cannot be expected to raise his own ineffectiveness. Commonwealth v. Dancer, 460 Pa. 95, 100, 331 A.2d 435, 438 (1975). Since counsel cannot be deemed ineffective for failing to raise a meritless claim, Commonwealth v. Roach, 479 Pa. 528, 388 A.2d 1056 (1978), this ground for establishing a claim of ineffectiveness must fail.

Lastly, appellant contends the trial court failed to advise him of his right to withdraw his plea at the June 22, 1977 hearing, when it determined that he failed to cooperate.

It was admitted by appellant at the October 7, 1976 guilty plea colloquy, that he was apprised of his right to withdraw his plea as a matter of right within seven days. (Guilty Plea Colloquy Hearing 10/7/76, N.T. 47, Appellant’s brief, p. 30). It is also clear that appellant was given the right to withdraw the guilty plea in the event the Commonwealth believed he was not cooperative and the trial judge determined that he was. (Guilty Plea Colloquy Hearing 10/7/76, N.T. 10-11). Appellant claims the trial court was again required to advise him of the right to withdraw his plea at the June 22nd hearing. Appellant’s claim is premised on a mischaracterization of the June hearing as being a continuance of the guilty plea colloquy and, in effect, is a rephrasing of his contention that his plea was tendered involuntarily. Further, appellant mischaracterizes the role played by the trial court in the entering of the plea.

At the guilty plea colloquy, it was made patently clear, with appellant’s consent, that he would receive a recommended sentence of probation in exchange for his plea provided he cooperate with the named narcotics officers. Appellant was advised that his failure to cooperate with the officers could result in imposition of the maximum sentence. Imposition of sentence at the guilty plea colloquy was deferred until January 31, 1977, in order to determine whether appellant, in fact, would cooperate as promised. (Guilty Plea Hearing 9/7/76, N.T. 46). At the hearing of June 22, 1977, the trial court determined that appellant had failed to abide by the plea agreement. Pre-sentence reports were ordered and the date for sentencing was then set for August 25, 1977. At the sentencing hearing, appellant was apprised of his right to appeal the judgment of sen-fence. (Sentencing Hearing 8/25/77, N.T. 134).

It is obvious to this Court that the trial court at the June 22nd hearing was not required to apprise appellant of his right to withdraw his plea either as a matter of right or under the terms of the plea agreement. The June 22nd hearing was not a continuance of the guilty plea colloquy. Appellant had been given the opportunity to withdraw the guilty plea within seven days after the colloquy but failed to do so. And by failing to cooperate, appellant did not have the right under the terms of the plea agreement to withdraw the plea.

The trial court had accepted the plea agreement and at all times abided by its terms. After the trial court’s determination that appellant had not cooperated, the trial judge refused to permit the withdrawal of the plea. It was at this time that the trial court was not bound by the conditional term of probation and was then permitted to impose sentence.

Order affirmed.

      . Since counsel on direct appeal was trial counsel, appellant’s first opportunity to raise trial counsel's ineffectiveness was at the PCHA hearing. It is, therefore, not waived. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).

      . We do note, however, that appellant makes only the bare assertion that the motion would have been successful because drug officers made a search prior to obtaining a search warrant. Moreover, it was stipulated at the guilty plea colloquy by the parties and without objection by appellant that the officers on the date of entry of appellant’s home had a warrant based on probable cause.

      . At the PCHA hearing, the court permitted an amendment to appellant’s amended PCHA petition to include an allegation that trial counsel was ineffective for failing to argue the Motion to Suppress. (PCHA Hearing 7/1/80, N.T. 7). We have rejected this claim. In appellant’s brief, however, appellant also claims that trial counsel’s ineffectiveness induced him to enter an involuntary and unintelligent plea. Though we could find this allegation waived since it was not properly raised below by PHCA counsel, Commonwealth v. Zillgitt, 489 Pa. 189, 413 A.2d 1078 (1980); Commonwealth v. Robinson, 253 Pa.Super. 496, 385 A.2d 448 (1978), we reject this contention on its merits since "allegations of ineffectiveness of counsel in connection with entry of a guilty plea will serve as a basis for relief only if ineffectiveness caused appellant to enter an involuntary or unknowing plea." Commonwealth v. Chumley, 482 Pa. 626, 640-41, 394 A.2d 497, 504-05 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979). Since we agree with the PCHA court that trial counsel was competent, this allegation must fail. Trial counsel’s decision to forego argument on the motion in exchange for a favorable plea cannot support a claim that counsel’s “ineffectiveness" induced the plea and rendered it invalid.

      . Trial counsel did file a direct appeal to this Court challenging the voluntary aspects of the plea. We affirmed judgment of sentence. Commonwealth v. Moore, 266 Pa.Super. 631, 405 A.2d 550 (1979). There we found that the failure of trial counsel to file a motion to withdraw the plea prior to taking the direct appeal waived appellant’s challenge to the voluntary aspects of the plea, as mandated by Com

        monwealth v. Roberts, 237 Pa.Super. 336, 352 A.2d 140 (1975). Though we are inclined to find that the issue of voluntariness was not finally litigated within the meaning of § 9544 of the PCHA since we believe that the issue of voluntariness of the plea was not fully addressed on the merits, Commonwealth v. McKenna, 498 Pa. 416, 446 A.2d 1274 (1982); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972); compare, Commonwealth v. Lewis, 278 Pa.Super. 35, 419 A.2d 1342 (1980), we need not so hold since we review the issue of voluntariness here, not as an independent basis of relief, but as appended to a claim of ineffectiveness. See, e.g., Commonwealth v. Ford, supra; Commonwealth v. Swift, 299 Pa.Super. 77, 81 n. 2, 445 A.2d 156, 157 n. 2 (1982). We do note, however, that our discussion of the voluntary aspects of the plea will have the effect of disposing of appellant’s challenges to the voluntariness of the plea alleged in appellant’s brief as an independent basis of relief.

      . We note that at sentencing on August 25, 1977, after being apprised of his right to take an appeal, appellant’s true concern and point of contention is evidence; that being, his disagreement over the determination of his non-cooperation. (Sentencing Hearing 8/25/77, N.T. 134-35).

      . We are aware that trial counsel’s failure to file a post-sentence petition affected the scope of our review and conclusion reached by us in appellant’s direct appeal. However, had trial counsel filed such a petition, appellant would have attained no more than that which he is receiving now: a careful and exhaustive reconsideration of the voluntary aspects of his plea, albeit in relation to the ineffectiveness issue.
      In this regard, we note that in the second argument in his brief (pp. 27-29), appellant also claims that his plea was involuntary since it was entered in reliance upon trial counsel’s ineffective advice with respect to counsel’s failure to argue the motion to suppress. While we believe that we disposed of this contention in footnote 3 herein, we further find that appellant’s plea was based on reasonable, competent advice and therefore was not involuntary. Whether trial counsel may have misjudged, without the benefit of knowing that appellant would not abide by the terms of the plea agreement, the admissibility of evidence seized at appellant’s home or the effect of appellant’s credibility on the success of the motion, is not grounds for attacking the voluntariness of the plea. See generally, McMann v. Richardson, 397 U.S. 759, 769-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763, 773 (1970) ("plea of guilty on reasonably competent advice is intelligent plea, not open to attack on grounds that counsel may have misjudged the admissibility of defendant’s confession.”)
      Appellant alleges that the plea was involuntary by reason of bad advice by counsel, and because of a general misunderstanding of the plea and of the consequences of failing to abide by the plea. We have addressed these contentions and have rejected them. Appellant also alleges that he was coerced by counsel to plead guilty. This contention was not properly raised below or addressed by the PCHA court and is therefore waived. Commonwealth v. Zillgitt, supra. We note that we seriously doubt appellant could meet his burden of proof on this claim. Appellant also alleges that he was involuntary induced to plead guilty because of evidence obtained by an allegedly illegal search. With respect to this claim, appellant presented some uncorroborated testimony that the drugs were obtained without a warrant. (PCHA Hearing 7/1/80, N.T. 8-10). No evidence was presented by appellant to substantiate his allegation of an illegal search. The PCHA court found that appellant failed to meet his burden of proving that the plea was involuntarily induced. We agree. See, Commonwealth v. Robinson, 253 Pa.Super. 496, 385 A.2d 448 (1978).

      . From the docket entries before us, appellant failed to appear as scheduled. The assigned reason was that it was believed appellant was in Federal custody.

      . The acts upon which the trial court based its determination that appellant was uncooperative occurred immediately following the plea agreement and prior to the January 31, 1977 sentencing date. (June Hearing 6/22/77, N.T. 109-110).

      . We note that at the time of sentencing, August 25, 1977, the trial court judge fully complied with the requirements of Pa.R.Cr.P. 1405 as mandated at that time and was not required to advise appellant of his right to file motions challenging the plea.

      . We also reject appellant’s final contention that the trial court did not give him sufficient notice of the June 22nd hearing since it was not, in effect, a revocation of probation hearing, as appellant so contends. We note that appellant understood that he was not serving a probationary sentence from the time subsequent to the guilty plea colloquy. This is evidenced by the record of the guilty plea colloquy and by his own testimony at the PCHA hearing (PCHA hearing 7/1/80, N.T. 14). We seriously doubt, based upon the record before us, that appellant’s defense was prejudiced by any alleged lack of notice.


author: ROWLEY, Judge:

text:
    468 A.2d 799
    COMMONWEALTH of Pennsylvania v. Joseph B. SAMPLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 26, 1983.
    Filed Nov. 18, 1983.
    Petition for Allowance of Appeal Denied Feb. 23, 1984.

      David Lionel Pollack, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   ROWLEY, Judge:

This is a direct appeal from judgments of sentence imposing fifteen to thirty years imprisonment, following a trial by jury wherein appellant was convicted of voluntary manslaughter, robbery, and possession of an instrument of crime. On appeal, appellant challenges the admissibility of an extra-judicial, pre-arrest identification and a subsequent in-court identification. Appellant further claims that the verdict was contrary to the weight and sufficiency of the evidence.

This is the second time appellant’s case has been before our Court. At a prior jury trial, appellant was found guilty of second degree murder, robbery, criminal conspiracy and three weapons offenses. On appeal, this Court determined that (1) the evidence was insufficient to support the convictions on two weapons violations and (2) trial counsel was ineffective for failing to preserve for appellate review claims of prosecutorial misconduct that constituted reversible error. Thus, the judgments of sentence were reversed and a new trial was granted. Commonwealth v. Sample, 270 Pa.Super. 47, 410 A.2d 889 (1979). The facts underlying the charges are set forth in the Court’s previous opinion, Id., 270 Pa.Superior Ct. at 50-51, 410 A.2d at 891, and need not be repeated here.

Appellant’s principal contention on appeal is that the pre-arrest, in-hospital identification process, by which the victim’s wife identified him as the gunman, was unduly suggestive and unnecessary and, thus, violative of his constitutional due process rights. He claims that the suppression hearing judge, prior to the first trial, erred in refusing to suppress evidence of the in-hospital identification and, consequently, he was prejudiced by the introduction of that identification evidence at his second trial. Appellant’s argument is without merit. The suppression court correctly concluded that the pre-arrest identification procedure in this case was not constitutionally defective.

In reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Commonwealth v. Sutton, 496 Pa. 91, 436 A.2d 167 (1981). Suggestiveness in the identification process is a factor to be considered in determining the admissibility of such evidence, but “[s]uggestiveness alone does not warrant exclusion.” Commonwealth v. Ransome, 485 Pa. 490, 495, 402 A.2d 1379, 1382 (1979); Commonwealth v. Johnson, 301 Pa.Super. 13, 15, 446 A.2d 1311, 1312 (1982). A pre-trial identification will not be suppressed as violative of due process rights unless the facts demonstrate that the identification procedure was so infected by suggestiveness “as to give rise to a substantial likelihood of irreparable misidentification.” Simmons v. U.S., 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968); Commonwealth v. Turner, 454 Pa. 520, 523, 314 A.2d 496, 498 (1974); Commonwealth v. Linder, 284 Pa.Super. 327, 337, 425 A.2d 1126, 1131 (1981). Reliability is the linchpin in assessing the admissibility of a challenged identification. Manson v. Brathwaite, supra. Our court recently enunciated the controlling test as follows:

The question for the suppression court is whether the challenged identification has sufficient indicia of reliability to warrant admission even though the confrontation procedure may have been suggestive. Manson v. Brathwaite, supra. The following factors are to be taken into consideration:
... the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

Commonwealth v. Thompkins, 311 Pa.Super. 357, 363, 457 A.2d 925, 928 (1983), quoting Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154. The opportunity of the witness to view the actor at the time of the crime is the key factor in the totality of the circumstances analysis. Commonwealth v. Spiegel, 311 Pa.Super. 135, 145, 457 A.2d 531, 536 (1983).

In this case the testimony at the suppression hearing revealed that during the commission of the crimes, the victim’s wife was face-to-face with the gunman in a small well-lit room for about fifteen minutes. She paid particular attention to him because he threatened her child and held a gun to the child’s head. While she was at the hospital with her husband, she described the assailant to the detective investigating the incident. The detective then took her to view the appellant, who was also being treated at the hospital. The detective did not pressure her to identify the appellant and her identification was unequivocal. Moreover, the likelihood of misidentification is minimal, if not non-existent in this case, since appellant admitted he was at the victim’s home to buy marijuana when the incident occurred. While the identification was not “on-the-scene”, the length of time between the crime and the confrontation at the hospital was slightly less than one hour. There is no reason to assume that a hospital environment is inherently conducive to misidentification. Commonwealth v. Williams, 271 Pa.Super. 114, 118, 412 A.2d 601 (1979); Commonwealth v. Aaron, 255 Pa.Super. 289, 298, 386 A.2d 1006, 1010 (1978). Clearly, the circumstances surrounding the identification herein illustrate sufficient indicia of reliability which outweigh any suggestiveness in the confrontation procedure. Under the totality of the circumstances disclosed by the record before us, the trial court did not err in refusing to suppress evidence of the pre-arrest identification and, thus, appellant’s constitutional rights were not violated by the admission at trial of such evidence.

Appellant further argues that the witness’ in-court identification of him was tainted by the alleged unduly suggestive pre-trial identification and, therefore, it was also inadmissible. Because we have determined that the pre-trial identification was not impermissibly suggestive and that it was properly admitted into evidence, it follows that the subsequent in-court identification was untainted and likewise admissible. Commonwealth v. Wheeler, 498 Pa. 374, 446 A.2d 892 (1982); Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979).

Appellant also argues that he was entitled to relitigate the identification question prior to his second trial. We disagree. Appellant’s pre-trial motion to suppress the identification evidence was denied prior to his first trial. Upon grant of a new trial, appellant again filed a motion to suppress the same evidence. The trial court, however, refused to hear the motion because the issue had been litigated prior to the first trial.

Pennsylvania Rule of Criminal Procedure 323(j), regarding suppression procedure provides, in part: “[i]f the court determines that the evidence shall not be suppressed, such determination shall be final, conclusive and binding at trial, except upon a showing of evidence which was theretofore unavailable ...” In Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 895 (1976), our Supreme Court indicated that once a pre-trial motion to suppress evidence has been litigated, the criminal defendant is not entitled to a second suppression hearing on the same issue prior to a new trial on the merits. Harmon involved “the right of appeal for trial de novo” from Philadelphia Municipal Court to the Court of Common Pleas. A local court rule provided that suppression motions decided prior to Municipal Court trial could not be reinstated as part of an appeal by right to the Court of Common Pleas. The Supreme Court held that the absolute right of appeal for trial de novo was not intended to embrace the right to relitigate pre-trial motions decided prior to the first trial. The Court determined that the word “trial” did not include pre-trial motions to suppress evidence and that relitigation of suppression issues served no useful purpose. Id., 469 Pa. at 497, 366 A.2d at 898. In the instant case, appellant had an opportunity to present his suppression claim prior to his first trial. Upon reversal of his conviction and grant of a new trial, appellant was not entitled to a second suppression hearing on the same issue and evidence. The trial court did not err in denying reconsideration of appellant’s motion to suppress the identification evidence. See Commonwealth v. Middleton, 260 Pa.Super. 571, 394 A.2d 1293 (1978) (when first trial resulted in mistrial, the defendant was not entitled to reconsideration of a previously litigated motion to suppress identification at second trial); see also Commonwealth v. Branch, 292 Pa.Super. 425, 431 n. 5, 437 A.2d 748, 751 n. 5 (1981). We note that in accordance with Pa.R.Crim.P. 323(j), a second suppression hearing may be necessary in such cases where new evidence, previously unavailable, is presented for consideration. There is no claim made here that previously unavailable evidence would have been presented at a new suppression hearing. Thus, a second hearing was not required.

Finally, appellant argues that the verdict was contrary to both the weight and the sufficiency of the evidence. Our review of the record in this case shows that neither claim has merit.

Whether the verdict is contrary to the weight of the evidence, thereby requiring a new trial, is generally a question within the sound discretion of the trial court. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972); Commonwealth v. Larew, 289 Pa.Super. 34, 432 A.2d 1037 (1981). If the jury’s findings are supported by the record, the trial court’s denial of a motion for new trial will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Yohn, 271 Pa.Super. 537, 414 A.2d 383 (1979). The test is not whether the reviewing court would have decided the case the same way the fact finder did but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail. Commonwealth v. Holmes, 315 Pa.Super. 256, 271, 461 A.2d 1268, 1275 (1983) (Wieand, J., concurring and dissenting). We find no abuse of discretion in the trial court’s denial of the motion for new trial on this ground.

In evaluating the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth, the jury could reasonably have found all of the elements of the crime beyond a reasonable doubt. Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975), cert. denied, 423 U.S. 934, 96 S.Ct. 290, 46 L.Ed.2d 265 (1975). The effect of a motion in arrest of judgment is to admit all the facts which the Commonwealth’s evidence tends to prove. Commonwealth v. Holmes, supra, 315 Pa.Superior Ct. at 271, 461 A.2d at 1275. Appellant’s main argument is that there were contradictions in the testimony of the Commonwealth’s main witness, and that appellant’s witnesses were more credible than the victim’s widow. In this case, the jury chose to believe the testimony of the victim’s wife, and we will not disturb their evaluation of the credibility of the witnesses. It is within the sole province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Davis, 466 Pa. 102, 113, 351 A.2d 642, 647 (1976); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). The mere fact that there are some inconsistencies in a witness’ testimony is not alone sufficient to destroy the Commonwealth’s case or render the evidence insufficient. Commonwealth v. Williams, 290 Pa.Super. 209, 434 A.2d 717 (1981).

Judgment of sentence affirmed.

      . Appellant’s pre-trial motion to dismiss on double jeopardy grounds was denied and the Pennsylvania Supreme Court affirmed the denial on appeal. Commonwealth v. Sample, 493 Pa. 347, 426 A.2d 582 (1981).

      . Appellant relies on Commonwealth v. White, 228 Pa.Super. 23, 324 A.2d 469 (1974) in support of his contention that a defendant has a right to relitigate the suppression issue. White, however, was effectively overruled by Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 895 (1976). See Commonwealth v. Middleton, 260 Pa.Super. 571, 575 n. 1, 394 A.2d 1293, 1295 n. 1 (1978).


author: BROSKY, Judge:

text:
    468 A.2d 803
    Laverne D. HERRON and Frances E. Herron, His Wife, Appellants, v. Patrick SEIZAK and Mona Seizak, His Wife.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1983.
    Filed Dec. 2, 1983.
    Petition for Allowance of Appeal Denied April 25, 1984.

      Sanford S. Finder, Washington, for appellants.
    Oliver N. Hormell, California, for appellees.
    Before BROSKY, McEWEN, and BECK, JJ.
   BROSKY, Judge:

This action was initiated by appellants who are the parents of appellee, Mona Seizak and the grandparents of Patricia Mae Seizak. Appellants seek a court order directing appellees to permit them to visit with the appellees’ daughter, Patricia Mae Seizak, who was three years of age when the complaint was filed. Patricia resides with her parents who are married to each other. The lower court sustained preliminary objections raised by appellees and dismissed the complaint. We affirm.

Our research has disclosed no cases in Pennsylvania in which our courts have addressed the factual situation present in this case in which the grandparents of a child being with both of her natural parents seek to visit the child over the objection of the child’s parents.

It is well established that preliminary objections in the nature of a demurrer should be sustained and a complaint dismissed only in cases which are clear and free from doubt. Harkins v. Zamichieli, 266 Pa.Super. 401, 405 A.2d 495 (1979).

In Harkins, supra, we explained further:

To sustain preliminary objections in the nature of a demurrer, it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.

Id., 266 Pa.Superior Ct. at 404, 405 A.2d at 497. (citations omitted).

The relevant assertion in appellant’s complaint is found in paragraph 14 which states:

The best interest and permanent welfare of the child will be served by granting the relief requested because the child will be hurt psychologically if she is permitted to grow up knowing that her parents forbid .her to visit with her maternal grandparents and knowing that she is not permitted to speak to them when they telephone.

In custody and visitation disputes the paramount consideration by the courts is the best interests of the child. Morris v. Morris, 271 Pa.Super. 19, 412 A.2d 139 (1979); Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 369 A.2d 821 (1977).

The best interests test has been applied in cases in which grandparents have sought visitation or partial custody. See Commonwealth ex rel. Williams v. Miller, 254 Pa.Super. 227, 385 A.2d 992 (1978) (parents divorced, mother subsequently died, and her mother sought visitation); Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983) (mother deceased, her parents sought partial custody). Also, by statute this Commonwealth has provided visitation to grandparents under certain circumstances.

The “Custody and Grandparents Visitation Act”, provides visitation rights to grandparents upon a finding by the court that visitation would be in the best interests of the child. The Act provides this right only in three circumstances: (1) when a parent is deceased; (2) when parents’ marriage is dissolved; and (3) when the child has resided with grandparents for a period of 12 months or more. None of these circumstances exists in the present case and the statute therefore does not provide a cause of action for appellants.

In Commonwealth ex rel. Williams v. Miller, supra, this court granted visitation rights to the maternal grandmother of a child whose mother had died and in doing so applied the best interests test urged on us by appellants. The Williams court, though, based its decision in part on the principle that “Except under unusual circumstances, no child should be cut off entirely from one side of the family.” Id., 254 Pa.Superior Ct. at 232, 385 A.2d at 995. True, the court also acknowledged the benefits to a child of having a relationship with his grandparents, but it is important to remember that this observation was made in reference to a child one of whose parents was no longer living.

Furthermore the Williams court cautioned that if animosities continued between the father and grandmother resulting in adverse effects to the child, the visitation order might be retracted.

In Commonwealth ex rel. Zaffarano v. Genaro, supra our Supreme Court reversed an order of this Court which had granted partial custody rights to the maternal grandparents of a child whose mother had died. The Supreme Court noted with favor the best interests test espoused by our Court in Williams and concluded that the trial court had rightfully denied partial custody to the. grandparents since to grant such rights would place the child in the middle of an unpleasant and emotionally unsettling situation caused by the animosity between the child’s father and grandparents.

In this case the grandparents have asked the court to involve itself in the dispute between them and Patricia’s parents. They have not, however, stated a cause of action on which we can grant relief. Even if it were true, as appellant’s allege, that it would be in Patricia’s best interests to have a relationship with her grandparents, we find no basis for one issuance of such an order.

The cases discussed in this opinion involve situations in which one parent was unable to see that her parents had a chance to get to know their grandchild. The interference by the court was justified by the absence of that parent, who if she were present, could assure access of the child to the grandparents.

Conversely, appellants in the instant appeal would have the court direct parents, both of whom have chosen not to have their children visit the grandparents, to permit such visitation. Nothing in the case or statutory law legitimizes such an intrusion by the courts into family life.

Appellants make no assertion that Patricia’s parents have abused or neglected her. In short, they make no allegation that would justify an interference with their decision not to permit visitation, however regrettable that decision may be. Certainly it is unfortunate that the parties cannot maintain an amicable relationship that would permit Patricia to get to know her grandparents. It is not within the purview of the court, however, to intervene in this family matter in which no legal rights are at issue.

We therefore affirm the order of the lower court.

      . Nor did we find help in the decisions of other jurisdictions.

      . Act of November 5, 1981, P.L. 322, No. 115 § 2; 23 P.S. § 1001 et seq.