source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    549 A.2d 973
    COMMONWEALTH of Pennsylvania v. Buddy A. HUNSINGER, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1988.
    Filed Oct. 27, 1988.

      Michael Dennehy, Danville, for appellant.
    George O. Wagner, District Attorney, Danville,- for Com., appellee.
    Before MONTEMURO, BECK and POPOVICH, JJ.
   BECK, Judge:

The issue is whether the trial court acted properly in admitting evidence that appellant initially refused to take a breathalyzer test where the appellant later agreed to the test.

We conclude that the trial court acted properly in admitting the evidence, and we affirm the judgment of sentence.

Appellant was convicted of one count of driving under the influence under 75 Pa.Cons.Stat.Ann. § 3731(a)(1) (Purdon 1987) and was sentenced to three to twenty-three months imprisonment in the Montour County jail. The testimony at trial established that appellant at least twice refused to submit to a breathalyzer test, but then agreed to take the test. Among other issues, appellant asserts that the suppression court erred in not suppressing evidence of his refusal to take the breathalyzer test.

Appellant concedes that the law is established that initial refusal to take the test followed by later agreement is admissible in a proceeding for suspending a driver’s license but he argues that there should be a different standard for defining a “refusal” for criminal trials. We disagree.

The statute which addresses the admissibility at trial of a refusal to submit to chemical testing for blood alcohol content provides as follows:

In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the fact that the defendant refused to submit to chemical testing as required by [§ 1547] subsection (a) may be introduced in evidence along with other testimony concerning the circumstances of the refusal. No presumptions shall arise from this evidence but it may be considered along with other factors concerning the charge.

75 Pa.Cons.Stat.Ann. § 1547(e) (Purdon 1988).

Appellant does not challenge the validity of this statute, nor does he claim that a refusal to take a breathalyzer test should be inadmissible as evidence at a criminal trial. Appellant concedes that in the closely analogous situation of a license suspension hearing, the Pennsylvania courts have held that anything less than an unqualified, unequivocal assent to the test is sufficient to constitute a refusal. See Cunningham v. Commonwealth Department of Transportation, 105 Pa.Comwlth. 501, 525 A.2d 9 (1987); Hando v. Commonwealth, 84 Pa.Comwlth. 63, 478 A.2d 932 (1984); In re: Appeal of Donald Earl Miller, 79 Pa.Comwlth. 648, 470 A.2d 213 (1984). Appellant nevertheless contends that a different standard should be used in a criminal proceeding in determining what actions or words constitute a refusal under the statute. Appellant cites no case law or reasoning in support of this contention, and our research discloses no applicable precedent.

The statute does not define “refusal.” It therefore does not on its face resolve the question of whether a refusal, or in this case, more than one refusal, followed by consent to take the test constitutes a “refusal” in a criminal proceeding. However, the policies underlying the statute compel the conclusion that an initial refusal to take a breathalyzer test cannot be vitiated by a subsequent consent to the test.

First, the statute is designed to induce drivers to take a breath test because of the volatile nature of the evidence. Because of such volatility, the Commonwealth should be able to record the blood alcohol content of the suspect’s bloodstream at the earliest possible moment. Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979); see Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988) (noting the difficulty of timing absorption of alcohol into the system for purpose of determining intoxication). A less stringent definition of “refusal” would hamper the Commonwealth’s ability to obtain results truly indicating a defendant’s intoxication while driving. A defendant could initially refuse to take the test, knowing that the results would indicate intoxication over the legal limit. He could then change his mind and consent to the test after the alcohol content in his blood had dissipated somewhat. The Commonwealth would then be prevented from introducing the defendant’s refusal into evidence, and would also be denied the opportunity to introduce a test result most indicative of the defendant’s true state of intoxication while driving.

Moreover, a lesser standard would confuse, rather than guide, police conduct. The police would not be able to take a “no” from a suspect at face value. Under the current stringent test employed in the license revocation cases, the police are not required to spend time cajoling a suspect or waiting to see if that suspect will change his or her mind. In re: Appeal of Miller, 79 Pa.Comwlth. 648, 470 A.2d 213 (1984).

Appellant, while objecting to defining “refusal” as anything less than an unequivocal consent, does not provide us with any alternative definition of refusal. Presumably, from the facts of his case, the appellant would advocate an approach which would examine all the facts surrounding the refusal and would determine if some valid explanation for the refusal existed. Appellant’s concern seems to be that the jury could draw unfair inferences of intoxication from the refusal, especially in cases where other legitimate concerns motivated the refusal. Appellant ignores the fact that the statute itself gives the factfinder the chance to consider the circumstances of the refusal, even if we define “refusal” strictly.

The statute provides that the refusal “may be introduced in evidence along with other testimony concerning the circumstances of the refusal.” 75 Pa.Cons.Stat.Ann. § 1547(e) (Purdon 1988). Thus, the defendant’s reasons for refusal are allowed to be admitted along with the refusal. In this case, appellant was permitted to testify concerning his reasons for refusing the test initially. He also was permitted to testify that he later agreed to take the test, but that the police officer did not allow him to do so. Moreover, the statute states that “[n]o presumptions shall arise from [the evidence of the refusal] but [the refusal] may be considered along with other factors concerning the charge.” 75 Pa. Cons.Stat.Ann. § 1547(e) (Purdon 1988). Thus, the statute itself provides for a full consideration by the factfinder of all relevant facts surrounding a defendant’s refusal to take the breathalyzer test.

Thus, defining “refusal” as anything less than an unequivocal consent strikes a fair balance between the needs of the Commonwealth to induce a defendant to take the test in order to obtain a prompt, accurate breathalyzer reading and the defendant’s interest in a fair interpretation of his refusal to take the test. Therefore, we find that a refusal followed by a consent to the test constitutes a refusal under the statute and that such refusal may be admitted into evidence at a criminal trial.

The other issues which appellant raises on appeal are either waived or meritless. Appellant contends the following: (1) that the extension granted under Rule 1100 was open-ended and violative of appellant’s speedy trial rights; (2) that the evidence failed to establish that appellant’s alcohol consumption rendered him incapable of safe driving; (3) that, in its charge to the jury, the trial court overly emphasized appellant’s interest in the case and engaged in an unnecessary discussion of the driving under intoxication statute; and, (4) that the sentence imposed was excessive. We will address these claims seriatim.

Appellant has waived his contention that the trial court erred when it extended time for trial under Pa.R. Crim.P. 1100 to the “next term of Court following the filing of a decision by the Court on any pre-trial motions” in the case. Appellant contends that the grant of extension, as worded, violated Rule 1100 by failing to specify a certain date. However, appellant failed to raise his speedy trial claim before trial, as mandated by Rule 1100(f). Therefore, the claim is waived. Commonwealth v. McFadden, 300 Pa.Super. 299, 446 A.2d 624 (1982).

We note, however, that even if not waived, appellant’s claim fails. According to Pa.R.Crim.P. 1100(c)(4), the order granting the petition must specify the “date or period” within which the trial must be commenced. The case was continued so that the court could dispose of appellant’s pretrial motions. It was extended to the term of court immediately following the disposal of the motions. The dates of the trial terms in the county at issue are published at the beginning of each year. Therefore, the period to which the case was extended was properly stated in the order.

Appellant’s claim that the Commonwealth failed to establish that appellant’s alcohol consumption rendered him incapable of assertions, the Commonwealth did not simply establish that appellant crossed into the center lane while driving. The evidence adduced at trial shows that the arresting officer observed appellant’s car cross over into the wrong lane, then proceed to travel half in one lane and half in the other. Appellant did not reenter the correct lane until the police officer activated his lights. When asked to produce his license, appellant fumbled through his wallet, passing over the license three times. He then produced his insurance card when asked for his registration. The officer also detected an odor of alcohol coming from the car and from appellant. Appellant could not walk a straight line when asked, nor could he touch his finger to his nose. The Commonwealth established that appellant was driving while “under the influence of alcohol to a degree which renders the person incapable of safe driving.” 75 Pa.Cons.Stat. Ann. § 3731(a)(1) (Purdon 1987).

Appellant next objects to the trial court’s charge to the jury. Appellant first claims that the court overly emphasized to the jury that appellant had an interest in the case. Appellant misquotes the jury charge. The court did not say that “the defendant” has an interest in the case, but that “the defendant in every case” does have an interest in the case. The court was discussing the jury’s duty of evaluating witness credibility and pointed out that other witnesses as well may have an interest in the outcome of the case. The instruction did not indicate a bias against appellant and was proper under the law. Commonwealth v. Gilbert, 254 Pa.Super. 579, 386 A.2d 101 (1978) (similar charge approved). Nor did the court imply that appellant was the sort of person who “was not in full possession of his faculties” and against whom the Commonwealth needs protection. Appellant has waived this claim, having failed to object to this portion of the court’s charge at trial. Commonwealth v. Ballard, 501 Pa. 230, 460 A.2d 1091 (1983). For purposes of disposal of this case, however, we note that appellant again misquotes the charge. The court, in the process of explaining the pertinent statute to the jury, simply stated that the legislature enacted the statute in the realization that “the drivers of vehicles should at all times be in full possession of their faculties in order to avoid injury to themselves or others____” The appellant was not mentioned, and the court inferred no bias against him. The charge was proper.

Finally, appellant claims that his sentence was excessive. Since this claim does not concern the legality of sentence, but is directed toward a discretionary aspect of sentencing, appellant is required to set forth in his brief a statement of reasons relied upon under Pa.R.App.P. 2119(f). Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Appellant’s brief does not include the required statement, and the Commonwealth objects to appellant’s error. Appellant has therefore waived his sentencing challenge. Commonwealth v. Wall, 372 Pa.Super. 534, 539 A.2d 1325 (1988).

Judgment of sentence affirmed.

      . Appellant does not challenge the statutory provision allowing for a defendant's refusal of chemical testing to be admitted into evidence. We note here, however, that similar statutes have been approved by the United States Supreme Court. See South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983); Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979).

      . Appellant ciaims that he refused to take the test because he thought that the district attorney in the county of appellant’s arrest was the attorney who represented appellant’s wife in their divorce action. Appellant claims to have consented to the test after he found out that another attorney was the district attorney.


text:
    549 A.2d 977
    COMMONWEALTH of Pennsylvania, v. Timothy ROBINSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 27, 1988.
    Filed Oct. 27, 1988.

      Howard Kaiser, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before ROWLEY, DEL SOLE and BECK, JJ.
   BECK, Judge:

Appellant was found guilty and sentenced on the charge of robbery, a first degree felony, and recklessly endangering another person, a misdemeanor of the second degree. Defendant was also found guilty of conspiracy and simple assault but was not sentenced on those charges. Appellant raises five issues on appeal. As to the first four issues we rely on the excellent opinion of the trial court and affirm on the basis of that opinion.

Appellant’s fifth issue raises the question of whether robbery and recklessly endangering another person merge for purposes of sentencing. We note that the trial court, which originally concluded that the offenses did not merge, changed its mind and in its opinion states that it erred and that the two offenses merge for sentencing purposes. We conclude that the appellant and the trial court are correct and that these offenses merge.

In Commonwealth v. Walls, 303 Pa.Super. 284, 449 A.2d 690 (1982), appellant claimed that the trial court erred in imposing a suspended sentence for recklessly endangering another person because this offense merged with robbery for sentencing purposes. This court noted that offenses merge for sentencing purposes where one crime necessarily involves another. The section of the robbery statute under which Walls was convicted requires that, in the course of committing a theft, a person “threatens another with or intentionally puts him in fear of immediate serious bodily injury.” 18 Pa.Cons.Stat.Ann. § 3701(a)(l)(ii) (Purdon 1983). The recklessly endangering statute applies where a person “recklessly engages in conduct which places or may place another person iii fear of death or serious bodily injury.” 18 Pa.Cons.Stat.Ann. § 2705 (Purdon 1983).

Walls had robbed a bank by approaching a teller and pointing a sawed-off shotgun in her face. This single set of facts established the necessary elements for both the offenses of robbery and recklessly endangering another person. The Superior Court therefore concluded that the offenses merged because where “no additional facts are needed to prove the additional offense, it merges into the primary offense for sentencing purposes.” 303 Pa.Super. at 294, 449 A.2d at 695.

In the instant case, the pertinent section of the robbery statute provides “a person is guilty of robbery if, in the course of committing a theft, he inflicts serious bodily injury upon another.” 18 Pa.C.S.A. § 3701(a)(l)(i) (Purdon 1983). The statute for recklessly endangering another person is the same as that in Walls. In the instant case, the bodily injury to the victim occurred when she fell while being swung around as appellant grabbed her handbag. As in Walls, this set of facts alone is sufficient to establish the elements of both robbery and recklessly endangering another person. Therefore, under the Walls test, these offenses should merge for sentencing purposes.

The issue is whether the Walls test has survived the merger standards established in the seminal en banc decision of Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985) and its progeny. We find that it does.

The Commonwealth maintains that it does not and relies on the Williams doctrine as enunciated in a later and unrelated case, Commonwealth v. Williams, 368 Pa.Super. 315, 534 A.2d 101 (1987), (Williams II). Williams II holds that offenses do not merge for sentencing purposes unless: (1) one crime necessarily involves the other; and (2) the statutes involved protect substantially similar interests. In Williams II, the appellant grabbed his victim from behind, threw her to the ground, beat her severely, and attempted to rob her. In Williams II appellant argued that his convictions for aggravated assault and attempted robbery should merge for sentencing purposes. A panel of this court concluded that the two offenses did not merge because the type of physical harm which the aggravated assault statute is meant to protect against is not the same as that provided under the physical harm element of the robbery statute. The panel quoted with approval the reasoning employed in Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987):

We agree with the court in Commonwealth v. Adams, [citations omitted] that the harm against which the Legislature intended to protect by enacting the aggravated assault statute is part of the same harm against which the robbery statute is intended to protect, i.e. protection against infliction of bodily injury. However, we also recognize that the robbery statute more specifically intends to punish those who threaten violence or resort to violent means in order to accomplish their goal of theft____ The rule of merger is not to be mechanically applied. After careful scrutiny of the particular facts of the case presently before the court, we decline to subsume a severe assault into a relatively minor robbery. By making the infliction of bodily harm an element of robbery, the Legislature could not have intended to prevent sentencing courts from directly punishing those who commit vicious and prolonged assaults. [368] Pa.Super. at [321-22], 534 A.2d at 103-4 (emphasis added).

The instant case is readily distinguishable from Williams II. The physical harm caused to the victim is inseparable from the robbery itself. It was part of the act of robbery. Unlike the vicious, deliberate beating received by the victim in Williams II prior to an attempted robbery, the victim in the instant case was injured when she was knocked to the ground in the course of the robbery. This type of injury in the course of a robbery appears to be precisely the type of injury which prompted the legislature to include the infliction of bodily harm as an element of robbery.

In the instant case the same set of facts is necessary to establish both the elements of robbery and of recklessly endangering another person. Additionally, the interest which the recklessly endangering statute seeks to protect is also provided for in the robbery statute. Therefore, we conclude that both prongs of the Williams II merger test have been satisfied.

Under the law of the Commonwealth of Pennsylvania, this court is not required to remand for resentencing, but can correct the sentence where to do so clearly reflects the intention of the trial court. Walls, supra.

Therefore, we vacate the sentence for recklessly endangering another person and affirm the sentence for robbery, a felony of the first degree.


author: DEL SOLE, Judge:

text:
    549 A.2d 980
    COMMONWEALTH of Pennsylvania v. Ramiro ZAMARRIPA, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1987.
    Filed Oct. 25, 1988.

      Taylor P. Andrews, Public Defender, Carlisle, for appellant.
    Merle L. Ebert, Jr., Assistant District Attorney, Carlisle, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This appeal follows Appellant’s judgment of sentence on two counts of rape and two counts of indecent assault. While Appellant has raised three issues for review, we find that a new trial is required on one of these issues and therefore reverse. We find that error was committed when the Commonwealth was permitted to introduce a psychologist’s testimony pertaining to rape trauma syndrome.

The victim in this case was a 21 year old woman suffering from cerebral palsy with an I.Q. of 61, which would classify her as educable mentally retarded. The Appellant admitted at trial that he had intercourse with the victim on two occasions, but claimed the victim was the sexually aggressive partner. At the time of the trial, the prosecution called Dr. Natale S. Berger, a licensed psychologist, who testified that the complainant suffered rape trauma syndrome. The Appellant argues that this testimony was inadmissible since it was being introduced for the purpose of proving that the victim did not consent to the sexual encounters. We agree and reverse.

In this case, the issue before the jury is whether the victim consented to the relationship. This issue is clearly framed and is one of credibility for the jury. Recently, the Pennsylvania Supreme Court in Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988) overruled this court’s decision and held that where an expert’s opinion of rape trauma syndrome is offered “to enhance the credibility of the victim” it is inadmissible. Id. (519 Pa. at 297, 547 A.2d at 358). Therefore, we hold that the introduction of opinion evidence of rape trauma syndrome to establish lack of consent is improper. Where the accused and complaining witness are at odds over the question of whether or not the relationship was consensual the issue is one for the jury to resolve. As the Supreme Court stated in Commonwealth v. Davis, 518 Pa. 77, 82, 541 A.2d 315, 317 (1988):

We note [] that the veracity of a particular witness is a question which must be answered in reliance on the ordinary experience of life, common knowledge of the natural tendencies of human nature, and observations of the character and demeanor of the witness. As the phenomenon of lying is within the ordinary capacity of jurors to assess, the question of a witness credibility is reserved exclusively for the jury ... The [expert testimony] in Seese was condemned as ‘an invitation for the trier of fact to abdicate its responsibility to ascertain the facts relying upon the questionable premise that the expert is in a better position to make such a judgment.’

The Supreme Court pointed out in Davis that expert testimony is not admissible to support the credibility of a witness. See also: Commonwealth v. Rounds, 518 Pa. 204, 542 A.2d 997 (1988); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. McNeely, 368 Pa.Super. 517, 534 A.2d 778 (1987). Also, in People v. Bledsoe, 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291 (1984), the California Supreme Court outlined the history, purpose and nature of the rape trauma syndrome concept:

[UJnlike finger prints, blood tests, lie detector tests, voice prints or the battered child syndrome, the rape trauma syndrome was not devised to determine the ‘truth’ or the ‘accuracy’ of a particular past event — i.e. whether a rape in the legal sense occurred — but rather was developed by rape counselors as a therapeutic tool, to help identify, predict and treat emotional problems experienced by the counselor’s possessive clients or patients.
Because it was developed for an entirely different purpose than, for example, the battered child syndrome, rape trauma syndrome represents a distinctly different concept than a battered child diagnosis. [] It does not consist of a relatively narrow set of criteria or symptoms whose presence demonstrates that the client or patient has been raped; rather, as the counselor in this case testified, it is an ‘umbrella’ concept, reflecting the broad range of emotional trauma experienced by clients of rape counselors.

Id. at 681 P.2d 291 at 300-301.

In Bledsoe, the prosecution introduced testimony by an expert witness who stated that the complainant was suffering from rape trauma syndrome. Disagreeing with the trial court’s decision to admit this testimony, the California Supreme Court held that such testimony was inadmissible by virtue of the fact that rape trauma syndrome is not relied on in the general scientific community for the purposes of establishing whether or not a rape occurred. Id. at 250, 203 Cal.Rptr. 450 at 459, 681 P.2d 291 at 301. See: People v. Pullins, 145 Mich.App. 414, 378 N.W.2d 502 (1985) (following the reasoning employed in Bledsoe).

The rationale espoused in Bledsoe and Gallagher is quite convincing. Although the dynamics of rape trauma syndrome are in no way indicative of whether or not a rape has been committed, where an expert testifies that a complainant exhibits some of the symptoms of the syndrome, the suggestion is planted within the jurors minds that the complainant’s testimony is reliable and trustworthy. Thus, the jury would ultimately permit its fact finding and credibility weighing-functions to become supplemented by the observations of an expert witness. Instantly, Dr. Berger’s testimony worked only to bolster the credibility of the complainant’s versions of the facts. Even though the jury members were instructed that they were free to disbelieve Dr. Berger’s testimony, by its very admission, the invitation to believe the witnesses’ testimony was so overwhelming that a new trial is required. Where expert testimony is being afforded solely to bolster the complainant’s credibility before the factfinder, it is inadmissible.

Judgment of sentence vacated, case remanded for a new trial consistent with this opinion. Jurisdiction relinquished.


author: POPOVICH, Judge: WIEAND, Judge,

text:
    549 A.2d 981
    COMMONWEALTH of Pennsylvania, Appellee, v. Walter NORMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 3, 1988.
    Filed Oct. 31, 1988.

      Helen A. Marino, Assistant Public Defender, Philadelphia, for appellant.
    Jo-Ann Verrier, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, BECK, KELLY, POPOVICH and MELINSON, JJ.
   POPOVICH, Judge:

On the Commonwealth’s application for reargument, this case was granted en banc consideration to review a panel decision of this Court awarding the defendant, Walter Norman, a new trial. After an examination of the record facts and the law, we now reverse our initial decision of December 8, 1987, and affirm the judgment of sentence.

The facts, viewed in a light most favorable to the verdict-winner, as well as giving the Commonwealth all favorable inferences to be derived therefrom, reveal that, at approximately 5:30-6:00 a.m. on the 13th day of May, 1981, Cassandra Harris had exited her apartment and was on her way to the trolley station to go to work. When she heard the sound of a vehicle starting, she turned and saw the defendant drive next to her. He offered her a ride to the trolley station. She accepted.

It seems that Ms. Harris and the defendant had been living together from 1978 until November of 1980. When Ms. Harris learned that, while she was out of her apartment in December of 1980 to see a friend, the defendant had been charged with robbing and raping two women in her apartment, she discontinued living with him.

On the morning of the 13th of May, while supposedly en route to the trolley station, the defendant asked to reconcile with Ms. Harris. He wanted her to leave the jurisdiction since he had jumped bail on the rape and robbery charges arising in Delaware County. Ms. Harris was aware of the circumstances and refused the offer.

After the defendant had purchased gasoline, he continued to drive, and, between Woodland Avenue and Grays Ferry in South Philadelphia, “the discussion became pretty much intense” in regard to whether Ms. Harris would leave with the defendant. She repeated her position and this prompted the defendant to say, “there is a contract out on you”. Ms. Harris asked why anybody would want to harm her. At this stage, she reached for the door handle and the appellant accelerated and turned down a small street. Again, the defendant asked and was told by Ms. Harris that there could be nothing between the two. With this, the defendant, according to Ms. Harris, said, “Well, maybe there can’t be nothing, nothing, and there’s only one thing to do.”

The defendant, after his remark to Ms. Harris, reached toward the back seat of the vehicle where a black jacket lay. It was Ms. Harris’ belief that the defendant was “searching for — wh[at she] thought was a gun.” Ms. Harris reacted by reaching for the clutch, she also wanted to place her foot on the accelerator in the hope of causing the vehicle to move forward and draw attention to her plight.

When the defendant released his hold of Ms. Harris, he reached toward the back seat again. As told by Ms. Harris:

By this time, we were both wrestling for the gun. I grabbed at it, and I did have my hand on it, and I tried to put it between the cushions of the back seat, and so he was over me, grabbing the gun. By this time, I had fell [sic] from the front seat to the back seat * * * sort of like in the middle of the seat, lying on the back seat from the front seat. He reached over and placed the gun on my neck, the gun fired. By this time, I could feel the life from my body leave, and I asked him not to hurt me anymore, because there was nothing I could do to hurt him. So, I asked him to place my body somewhere where I could be found, and he did, and he left, and told me good-bye.

During the course of the assault, Ms. Harris recounted how, while holding her down with his left hand, the defendant adjusted the cylinder of the gun to align it so the hammer rested on a bullet. Also, after he shot the victim, the defendant stated, with an “expressionless” face and in a calm manner, “I should have killed you, I should have killed you.”

It was not until 7:00 a.m., on the morning that she was shot, that Ms. Harris was found behind an Exxon station in some bushes. She could not speak or move. Thereafter, she was transported to St. Agnes Medical Center, Emergency Ward. The police questioned the victim sometime thereafter and were apprised of what transpired. The shooting left the victim paralyzed from her shoulders down.

From March of 1981 until the end of 1983, the defendant remained a fugitive. Once apprehended, he was tried and convicted by a jury of aggravated assault and possessing an instrument of crime. After the denial of post-verdict motions, sentence was imposed by the court below. An appeal was filed and heard by a panel of this Court, which reversed the trial court’s allowance of testimony by a Commonwealth witness (Detective David Piefer) that informed the victim, before the shooting, to be careful of the defendant because he thought the defendant was “dangerous”.

The panel, over Judge Olszewski’s dissent, found the testimony to be an expression of the witness’ opinion as to the defendant’s character, a matter which was not in issue, and, therefore, was considered to be irrelevant and immaterial. Because this was found to prejudice the defendant’s right to a fair trial, any offer by the trial court to give a cautionary instruction, to minimize the effect of the testimony, was held by the panel majority to “have served only to remind the jury of the testimony and enhance its effect.” As a result, a new trial was granted. However, by order of this Court dated December 8, 1987, the Commonwealth’s application for reargument was granted and the case was heard en banc.

Before addressing the issue which prompted en banc consideration, we need to respond to the allegation of the defendant that he was unduly prejudiced and denied a fair trial when the trial court allowed the Commonwealth to introduce evidence of his prior criminal activity to the jury.

The law is quite clear in this area. Pennsylvania holds that evidence of unrelated criminal conduct of an accused is inadmissible to prove his propensity for violence. This forecloses the trier-of-fact from reasoning that the defendant, more likely than not because of his prior criminal behavior, committed the crime(s) for which he is presently being tried. See Commonwealth v. Travaglia, 502 Pa. 474, 492, 467 A.2d 288, 297 (1983), cert. denied, Lesko & Travaglia v. Pennsylvania, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984); see also Commonwealth v. Clayton, 506 Pa. 24, 483 A.2d 1345 (1984). However, various exceptions have emerged to circumscribe this exclusionary rule, one of which is the permissibility of evidence of other crimes where it is relevant to prove motive.

Instantly, it was the Commonwealth’s contention that the defendant was forced to shoot the victim because of her failure to provide him with an alibi to the previously mentioned rapes/robberies in Delaware County. This led to the defendant’s arrest therefore and subsequent “bail-jumping” and hope that the victim would leave this jurisdiction with him.

Without the introduction of the defendant’s arrest for the Delaware County crimes, the nature of which (rape and robbery) was kept from the jury, the veniremen would only have had evidence of the defendant offering the victim a ride and a discussion between the two which culminated in the defendant shooting the victim in the neck. Her body was “dumped” at the rear of a gas station without the defendant summoning any help.

However, with the admission of the defendant engaging in criminal activity against two women in Ms. Harris’ apartment, while in her absence, the picture becomes more clear as to what might have motivated the defendant to shoot the victim, i.e., her refusal to provide the defendant with an alibi or leave the jurisdiction, both of which stem from the Delaware County offenses. This also discounted the defendant’s “accidental shooting” version of what transpired and brought into focus plausible reasons (“motive”) for the shooting. See Travaglia, supra. Without such evidence, we have a disjointed series of acts absent any symmetry or rationale as to their origin or objective. Thus, to clarify matters, and put the facts in perspective and in some sort of order, we deem the manner and method by which the trial court controlled the introduction of the Delaware County crimes as proper and, at the same time, steered the trial on a course free from “prejudicial” waters.

The second and final issue we shall deal with relates to the defendant’s assertion that the trial court erred in permitting Detective Piefer to testify that he told Ms. Harris that he believed the defendant to be “dangerous”. It is the defendant’s contention that the complained-of testimony had no probative value and constituted an assault upon his character warranting a new trial to remedy the matter.

By Information No. 86-022715, the defendant was charged with aggravated assault, a felony of the second degree, and he was adjudged guilty of the same by a jury of his peers following the reading of the instruction advising them that:

Aggravated assault by definition requires either an intentional, knowing or reckless inflection of serious bodily injury.

See also 18 Pa.C.S. § 2702. The intent element in the aggravated assault statute, like its counterpart in the simple assault statute (18 Pa.C.S. § 2701), may be implied from the circumstances, such as acting in a manner which manifests a reckless, culpable disregard for the safety of others. See Commonwealth v. Mott, 372 Pa.Super. 133, 539 A.2d 365 (1988).

Thus, the actor can be charged with and convicted of the crime if he acts recklessly as well as intentionally or knowingly causing injury. Id. The term “recklessly”, as used in 18 Pa.C.S. § 2702, is defined at 18 Pa.C.S. § 302(b)(3) as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

If the testimony of the victim is to be believed over that of the defendant’s accounting of “misadventure”, and we have no reason to alter the jury’s credibility determination on this point, we have a recitation of facts whereby the victim voluntarily entered the defendant’s vehicle without any reason to believe that the defendant harbored any malevolence toward her, even though she had terminated their relationship and refused to provide the defendant with an alibi for the criminal assault of two women in her apartment — the basis for the severing of ties.

The victim then gave an accounting in which the defendant stated that a “contract” had been “put out” on the victim, and that she probably thought that it was he who issued the “contract”. Further, the victim testified that the defendant then told her that her refusal to leave the area in his company left him but one choice, which, at the time he was so stating this, he was reaching under a coat on the rear seat of the vehicle where she believed was a gun.

The victim’s efforts to escape from the vehicle, by lifting the door handle and manipulating the clutch and stepping on the accelerator to attract attention to her dilemma, were foiled by the defendant. The ensuing struggle with the defendant over the gun caused her to land on the rear seat of the vehicle. With all the struggling, the victim became exhausted and this allowed the defendant to hold her on the seat with the use of his left hand against her left arm.

The victim then proceeded to remember how the defendant checked the chamber of the weapon to assure its containment of a bullet. Next, as she lay motionless on the back seat, the defendant reached over the front driver’s seat, with right arm fully extended and placed the barrel of the weapon against the left side of the victim’s neck. He fired but one shot and followed this with a dispassionate remark to the effect that he should have killed the victim. She pleaded that he not do so. Rather, she inquired if the defendant would merely place her body where it would be found. The defendant complied by taking the victim to the back of a service station in South Philadelphia and leaving her there in her speechless and paralyzed condition.

With no intention of summoning help, as evidenced by a total absence of empathy for the victim’s welfare, the defendant absconded and remained at-large for approximately two years before the authorities apprehended him.

Reading the facts in light of the applicable standard of review, we find that the evidence was “overwhelming” in its quality and volume so as to justify an affirmance of the defendant’s conviction and judgment of sentence. The sentencing court accurately described the defendant as lacking heart, conscience, human warmth and caring so as to be possessed of an “absolute cold-heartedness”, which we find to be inconsistent with his defense of “aggravated assault by accidental misadventure”.

We assess the facts as consonant with a finding supportive of the jury’s verdict under any element of aggravated assault, be it an “intentional”, “knowing” or “reckless” act which provided the impetus for thé conduct prosecuted. Therefore, because we perceive the evidence to be “overwhelming”, we rule that the detective’s testimony that he advised the victim, prior to the shooting, that the defendant was “dangerous” was “harmless” error. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Moreover, as pointed out by the dissenting member of the panel which initially heard this case:

... because appellant refused the court’s offer for a limiting instruction to the jury, appellant is now precluded from relief on this claim. “When counsel chooses to refuse appropriate curative instructions for [a] legitimate tactical reason, the defense may not plead prejudice on appeal.” Commonwealth v. Miller, 333 Pa.Super. 58, 62-63, 481 A.2d 1221, 1223 (1984).

We agree and, thus, for the reasons herein stated, we affirm the judgment of sentence.

MELINSON, J., concurs in the result.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

Walter Norman was tried by jury and was found guilty of aggravated assault and possession of an instrument of crime in connection with the shooting of his former girlfriend, Cassandra Harris. On direct appeal from the judgment of sentence, he argues that it was error (1) to allow evidence of prior criminal conduct which had caused the disaffection between himself and Cassandra Harris; and (2) to permit an expression of opinion by a police officer that appellant was dangerous. The majority holds, and I agree, that reference to appellant’s prior criminal conduct was properly received to show motive and also to show the relationship between appellant and the victim and the dispute between them which culminated in the shooting. However, I am unable to agree with the majority’s determination of the second issue. I would hold that it was error to allow the jury to hear evidence of the investigating police officer’s opinion that appellant was a dangerous person. Because this error cannot be deemed harmless, I would reverse the judgment of sentence and remand for a new trial.

Harris and Norman had been romantically involved and had lived together for two years. They separated after Norman was arrested for the December, 1980, kidnap, rape, and robbery of two women. Harris not only refused to provide Norman with an alibi, as he had requested, but also cooperated with investigating police. Norman, although arrested and charged, failed to appear at the preliminary hearing and became a fugitive.

On the morning of May 13, 1981, he appeared in front of Harris’s apartment and offered to give her a ride to work. She accepted. During the ride, Norman asked Harris to resume their prior relationship and flee the jurisdiction with him. Harris refused, and an argument ensued. According to the trial testimony of Harris, appellant told her there was only one thing to do, reached into the back seat, and retrieved a gun. After a brief struggle, appellant was able to hold Harris down and then shot her in the neck. Harris, although seriously hurt, did not lose consciousness. Because she knew Norman was a fugitive and therefore could not take her to a hospital, she asked to be taken to a place where she would be found. Norman took her to a gasoline service station, where she was found and removed to a hospital. Harris is now a permanent quadriplegic. Appellant’s testimony at trial was that he had borrowed the car from a friend and did not know that there was a gun in it. He testified that the gun had come into view when a sudden lurch caused an armrest to fall. He contended further that the gun had discharged accidentally during a struggle to retrieve it.

The manner in which the shooting occurred depended primarily on the conflicting testimonies of Harris and Norman. The credibility of the two witnesses, therefore, was an important determination to be made by the jury.

Evidence of prior crimes and/or acts of violence is inadmissible to prove a defendant’s propensity for violence or bad character. Commonwealth v. Banks, 513 Pa. 318, 349, 521 A.2d 1, 17 (1987); Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981). However, evidence of prior crimes or violent acts may be admissible where it is relevant for some other legitimate purpose. Commonwealth v. Banks, supra; Commonwealth v. Claypool, 508 Pa. 198, 204, 495 A.2d 176, 178 (1985). Among the several exceptions to the general rule is that which permits evidence of prior criminal conduct to show motive.

In this case, it was the contention of the Commonwealth that the shooting had not been accidental but intentional. It had been committed, according to the Commonwealth, in retaliation for the victim’s refusal to supply appellant with an alibi in the prior criminal proceedings and because of her refusal to flee with him in order to avoid prosecution. The prior criminal charges, therefore, were relevant to show motive. In order to minimize the harm from this evidence, however, the trial court did not permit the jury to learn of the nature of the prior crimes; the jurors learned only that appellant had committed a crime against two women and that the crime had been committed in Harris’s apartment. Moreover, the jurors were carefully instructed on the limited use to be made of this evidence.

Under these circumstances, the trial court did not err. Appellant’s prior criminal conduct was an essential part of the Commonwealth’s case and necessary to the jury’s understanding of the circumstances surrounding the shooting.

The second issue concerns an evidentiary ruling by the trial court which permitted Detective Peter Piefer to testify, over objection, that while Norman was a fugitive on the prior charges, he, Piefer, had told Harris, “to be careful because I thought Walter Norman was dangerous.” (emphasis added). Appellant contends that the ruling was erroneous and that the detective’s opinion that appellant was dangerous was unfairly prejudicial. I agree.

The objectionable testimony consisted of the witness’s opinion about the defendant’s character. However, the defendant’s character was not an issue in the case, and the detective’s opinion regarding the defendant’s character was irrelevant and inadmissible. As a general rule, “[t]he character of the defendant is not in issue in a criminal proceeding until the accused himself does something which puts it in issue.” 10A P.L.E., Criminal Law § 361. See: Commonwealth v. Anthony, 91 Pa.Super. 518, 521 (1927). In a criminal prosecution, the factfinder’s concern is with what the defendant did and why it was done, and evidence of his general character, having only slight probative value and great potential for prejudice, is inadmissible. McCormick on Evidence §§ 186, 188 (3d ed. 1984). Cf. Commonwealth v. Tirado, 473 Pa. 468, 375 A.2d 336 (1977). Moreover, when the defendant’s character is in issue and, therefore, relevant, it must be proved by evidence of his reputation or by evidence of conduct which reflects a character trait. The personal opinion of the witness is not admissible to prove the character of the defendant. See: Commonwealth v. Neely, 372 Pa.Super. 519, 524, 539 A.2d 1317, 1320 (1988); Commonwealth v. Gaines, 167 Pa.Super. 485, 490, 75 A.2d 617, 619 (1950).

The Commonwealth argues that even if the trial court’s ruling was incorrect, it was harmless. “[A]n error may be harmless where the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict.” Commonwealth v. Story, 476 Pa. 391, 412, 383 A.2d 155, 166 (1978). In the instant case, the undisputed evidence was that Harris had been seriously injured as a result of the shooting. Appellant did not deny this fact. Whether the defendant had gone gunning for the victim and shot her deliberately and intentionally in retaliation for her cooperation with police in the prior incident or whether he had sought her out to discuss their personal relationship and subsequently engaged in a dispute which resulted in an accidental shooting, however, was a question of fact for the jury. In order to resolve this issue the jury was necessarily required to determine the credibility of the victim and the defendant, for they were the only persons present at the time of the shooting. Under these circumstances, it cannot be said beyond a reasonable doubt that the opinion of an experienced police officer that appellant was a dangerous person did not have an effect on the jurors’ decision.

Before submitting the case to the jury for decision, the trial judge sua sponte asked defense counsel if he desired a cautionary instruction to be given to the jury regarding the detective’s opinion that appellant was a dangerous person. Defense counsel declined the trial court’s offer which, of necessity, would have repeated or at least reminded the jury of the police officer’s opinion. The majority holds that the defendant is thereby precluded from asserting prejudice. I must disagree. In the first place, the suggested instruction was too late. The jury had already heard the trial court rule that the evidence was properly for it to consider. Secondly, it is wholly unrealistic to believe that a jury which has been permitted to hear prejudicial evidence, with the trial court’s erroneous imprimatur, can wash such evidence from its collective mind by a belated “cautionary instruction.” “[Cjurative instructions do not, without exception, cure.” Commonwealth v. Channell, 335 Pa.Super. 438, 454, 484 A.2d 783, 791 (1984). Finally, the rule espoused by the majority puts the defendant in an untenable position. A defendant who has been harmed by an erroneous evidentiary ruling must either consent to having the prejudicial matter repeated by the trial court or surrender the right to obtain post-trial and appellate review of the trial court’s ruling. The rule advanced by the majority, I submit, is an alarming and unwarranted incursion into the right of an accused to receive a fair trial. Therefore, I dissent. “When an error in a trial is of such consequence that, like a dash of ink in a can of milk, it cannot be strained out, the only remedy, so that justice may not ingest a tainted fare, is a new trial.” Commonwealth v. Gaerttner, 335 Pa.Super. 203, 220, 484 A.2d 92, 101 (1984), quoting Lobalzo v. Varoli, 409 Pa. 15, 21, 185 A.2d 557, 561 (1962).

I would reverse and remand for a new trial.

      . It was the Commonwealth’s theory that, when the police were investigating the Delaware County case, the defendant asked Ms. Harris to be his alibi and tell the police he was with her on the date of the incidents. However, Ms. Harris refused to lie for the defendant. She told police she was with her girlfriend when the incidents occurred.

      . At this stage, we would like to echo the sentiments of the sentencing court that the defendant should consider himself fortunate that the District Attorney of Philadelphia County did not press for an attempted murder conviction "... because if there was one case that deserved the maximum pressing of an issue in Philadelphia, this was it.”

      . Some of the other exceptions, allowing for the introduction of prior criminal conduct attributed to an accused, consist of "intent”, "identity”, “plan, scheme and design” and the “absence of mistake or accident”. See Travaglia, supra. Where evidence is sought to be interjected into a trial, reflective of any one or more of the preceding exceptions to the prior criminal conduct rule, a balancing must be engaged in by the trial court in weighing the probative value against the prejudicial effect of the proffered evidence. If the former outweighs the latter, the evidence is admitted. Otherwise, it is excluded. Id.

      . As the trial court remarked at the demurrer stage of the case, the victim’s "naivety" did not preclude the Commonwealth from proffering prior-criminal-acts evidence of the defendant to establish a “motive” for the shooting.

      . The detective’s opinion testimony was not merely repetitive of prior testimony by the victim. Although she testified that she had been warned by the police to be careful because she had cooperated in the investigation of the prior offense, there was no prior testimony that the police, or any one of them, considered appellant to be a dangerous or violent person.


author: KELLY, Judge: HESTER, Judge

text:
    549 A.2d 988
    KEY SAVINGS AND LOAN ASSOCIATION, Appellee, v. LOUIS JOHN, INC., Louis Argyris and Louis J. Cutillo. Appeal of Louis J. CUTILLO.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1987.
    Filed Oct. 31, 1988.

      Steven J. Proctor, Pottstown, for appellants.
    Walter R. Milbourne, Philadelphia, for appellee.
    Before WIEAND, KELLY and HESTER, JJ.
   KELLY, Judge:

The appellant, Louis Cutillo (“Cutillo”) appeals an order denying his request for liquidated damages under 42 Pa.C. S.A. § 8104(b). We affirm.

The facts may be stated as follows. Prior to September 1979, the appellant Cutillo and one Louis Argyris were involved in several business ventures, including a construction business entitled Louis John, Inc. In September 1978, appellee Key Savings and Loan Association (“the Bank”) issued a construction loan to Louis John, Inc.; the loan was secured by a mortgage in the principal sum of $1,980,000.00 and the penal sum of $3,960,000.00. Argyris and appellant Cutillo signed the bond and warrant accompanying the mortgage both as individuals and as officers of the corporation; a clause in the bond and warrant provided that liability under the mortgage was joint and several.

On September 13, 1979, the Bank sent notice of default and its intent to foreclose under the mortgage. Shortly thereafter, difficulties arose between Gutillo and Argyris. To resolve these difficulties, Argyris proposed buying out Cutillo’s interest in the corporation. The Bank was amenable to Cutillo’s withdrawal and Argyris’ assumption of control over the corporation, since the arrangement would allow the construction project to continue. An exchange of releases between the Bank and Cutillo followed. First, Cutillo executed a release in favor of the Bank; the Bank was released from all liability arising from its notice of default and the exercise of its rights under a collateral pledge agreement. Second, the Bank executed a release in favor of Cutillo, releasing Cutillo from any claims arising from his signing the bond and warrant. This second release was executed on the same day Argyris purchased all of Cutillo’s stock in the corporation.

On February 17, 1981, despite the release of Cutillo, the Bank confessed judgment on the bond and warrant against Cutillo, Argyris, and Louis John, Inc. in the amount of $362,204.50. Counsel for the Bank believed since the bond and warrant stated that the liability of the signators was joint and several, judgment must be obtained against all three of the debtors named in the bond and warrant.

On November 13, 1981, after informal oral and written attempts to have the Bank relieve him from the judgment failed, Cutillo filed a petition to have the judgment satisfied as to him. The petition alleged that the judgment had become a lien against real estate held by Cutillo, that title insurance companies had therefore refused to insure the title to the property, and that the judgment had damaged Cutillo’s business activities. Cutillo therefore requested that, in accordance with the release, the court issue an order marking the judgment satisfied as against Cutillo. The Bank responded by denying the propriety of the relief requested by Cutillo, alleging that satisfaction of the judgment as to one joint and several obligor would satisfy the judgment as to all joint obligors. On June 11, 1982, the court granted Cutillo’s petition and directed the prothonotary to mark the judgment satisfied as to Cutillo. The Bank did not appeal this order.

On September 14, 1982, Cutillo filed a petition for liquidated damages in the amount of $1,980,000.00 under 42 Pa.C.S.A. § 8104(b), which allows recovery of liquidated damages for the failure to mark a judgment as satisfied. The Bank responded by arguing that the underlying debt remained unpaid and that liquidated damages under Section 8104(b) are only available when a judgment creditor has received full payment of the underlying debt. The Bank further maintained that its refusal to mark the judgment against Cutillo satisfied was not wrongful because it arose from a bona fide dispute over the effect of the Bank’s release of Cutillo. Depositions were taken on disputed factual issues, and the case was submitted to the trial court on depositions, exhibits, and argument of counsel. By order dated March 10, 1987, the court denied Cutillo’s petition for liquidated damages. This appeal followed.

I.

The first issue which we must consider is whether, as a prerequisite to an award of liquidated damages under 42 Pa.C.S.A. § 8104, the debtor must prove that the creditor acted in a willful and wanton fashion in failing to mark the judgment satisfied. The trial court found that the Bank had failed to mark the judgment as satisfied because of its “good faith belief that such action was necessary to protect its interests against each of the remaining co-obligors on the unpaid loan”; the trial court then held that absent a wanton and willful refusal to mark the judgment satisfied, Cutillo was not entitled to liquidated damages. We cannot agree.

A.

In finding that Section 8104 required a willful and wanton failure to mark the judgment satisfied, without good cause, the trial court in the instant case relied upon Werner v. Automobile Finance Co., 347 Pa. 217, 31 A.2d 898 (1943) and Miller v. Linwood Building Association, 40 Del.Co. 25 (1952). These cases are inapposite, as they interpreted predecessors to the current statute which employed materially different language from that which exists in the current statute. The statute construed in those cases vested in the jury discretionary authority to assess a penalty. In Werner and Miller, the courts indicated that implicit in this discretionary authority was the prerogative to consider the reason or motive for the creditor’s failure to mark the mortgage judgment satisfied. Section 8104, however, provides for liquidated damages calculated by an objective application of a statutory formula; it does not vest in the fact finder any discretionary authority to determine the amount of the award. Because there is no discretionary authority within which to imply a prerogative to consider the reason or motive for the failure to mark the judgment satisfied, the reasoning of the courts in Werner and Miller is plainly inapposite.

B.

In construing the enactments of the legislature, appellate courts must refer to the provisions of the Statutory Construction Act. 1 Pa.C.S.A. § 1901 et seq. The legislature has directed that, “In the construction of the statutes of the Commonwealth, the rules set forth in this chapter shall be observed, unless the application of such rules would result in a construction inconsistent with the manifest intent of the General Assembly.” 1 Pa.C.S.A. § 1901. In 1 Pa.C.S.A. § 1921(a) and (b) the legislature further explained that:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

1 Pa.C.S.A. § 1921 (emphasis added). The legislature is presumed not to have intended a provision in its law as mere surplusage and therefore, whenever possible, courts must construe a statute so as to give effect to every word. Habecker v. Nationwide Ins. Co., 299 Pa.Super. 463, 445 A.2d 1222 (1982); Lukus v. Westinghouse Elec. Corp., 276 Pa.Super. 232, 419 A.2d 431 (1980). Words and phrases in a statute are to be construed according to their common meaning and accepted usage. 1 Pa.C.S.A. § 1903(a); Fireman’s Fund Ins. Co. v. Nationwide Mut. Ins. Co., 317 Pa.Super. 497, 464 A.2d 431 (1983). Finally, this Court is without authority to insert a word into a statutory provision where the legislature has failed to supply it. Worley v. Augustine, 310 Pa.Super. 178, 456 A.2d 558 (1983).

The trial court’s construction of the statute is not consistent with the above rules. Section 8104(b) provides in pertinent part that “[a] judgment creditor who shall fail or refuse ... to comply with a request [under the previous subsection for entry of satisfaction]” shall pay liquidated damages to the debtor in an amount calculated by reference to the statutory formula. In order to construe the statute as imposing liability on a creditor only when the failure or refusal to mark a judgment satisfied is “unreasonable” or “willful,” one must: ignore the common meaning of the word “fail,” insert the words “without good cause” or “willfully or unreasonably” into the statute though they were not supplied by the legislature; and, render the word “refuse” mere surplusage.

The common meaning and ordinary usage of “fail” has been defined as follows, “[t]o leave unperformed; to omit; to neglect, as distinguished from refuse, which latter involves an act of the will....” Taylor v. Mason, 22 U.S. (9 Wheat.) 344, 6 L.Ed. 101 (1824); cited in Bouvier’s Law Dictionary 1179 (1914) (“fail”). Thus, in order for the term “fail” to imply a willful or unreasonable act, we would have to revise the statute to state “fail without good cause or refuse” or “willfully or unreasonably fail or refuse.” Moreover, if the word “fail” was construed to imply only willful or unreasonable failure to act, then the word “refuse” would be subsumed within its ambit and would be reduced to mere surplusage. Such a construction of the statute cannot be made by this Court. Rather, the plain and unambiguous meaning of the word “fail” in the statute is simply “to omit or neglect;” no requirement of willfulness or unreasonableness is thereby implied.

C.

Moreover, though no previous appellate authority has directly addressed this question, we find that language utilized by our Supreme Court in First National Consumer Discount Co. v. Fetherman, 515 Pa. 85, 527 A.2d 100 (1987), supports our conclusion that once the debtor has complied with the written notice requirement and has shown that the judgment has been satisfied, the debtor is automatically entitled to liquidated damages calculated in accordance with the statutory formula. In Fetherman, the creditor received less than the full amount of the judgment when it foreclosed upon the debtor’s property. The creditor did not comply with the debtor's request to mark the judgment satisfied. The Supreme Court held that the judgment was deemed satisfied as a matter of law when the creditor failed to timely seek a deficiency judgment, and the debtor was entitled to both satisfaction of record and the immediate imposition of liquidated damages:

[A]t the written request of the judgment debtor and the tender of the fee for satisfaction, the judgment creditor has the duty to have the judgment marked satisfied of record. Where the judgment creditor fails to do so for more than thirty days after receiving such written notice, the judgment creditor is liable for liquidated damages pursuant to Section 8104(b).

515 Pa. at 97, 527 A.2d at 105. We find it significant that our Supreme Court used unqualified language in characterizing the creditor’s liability and we note the conspicuous absence of any suggestion that the creditor’s motivation for failing to have the judgment marked satisfied is even relevant. Thus, the language utilized in Fetherman supports our conclusion that the debtor is entitled as of right to liquidated damages whenever the creditor has received satisfaction and fails to comply with a written request to mark the judgment satisfied, regardless of the creditor’s reasons or motives.

We conclude that Section 8104 does not require a wilful or wanton failure to mark the judgment satisfied and that the creditor’s state of mind in failing or refusing to mark the judgment satisfied is irrelevant in determining whether the debtor is entitled to liquidated damages. Where the debtor has satisfied the judgment and the creditor has failed to remove the judgment despite receiving written notice to do so, the debtor is entitled to satisfaction of record and liquidated damages.

II.

The second question which we must decide is whether Section 8104(b) requires full payment of the underlying debt instrument in order to trigger liability for liquidated damages under the circumstances of this case. The applicable statute, 42 Pa.C.S.A. § 8104, provides:

§ 8104. Duty of judgment creditor to enter satisfaction
(a) General rule. — A judgment creditor who has received satisfaction of any judgment in any tribunal of this Commonwealth shall, at the written request of the judgment debtor, or of anyone interested therein, and tender of the fee for entry of satisfaction, enter satisfaction in the office of the clerk of the court where such judgment is outstanding, which satisfaction shall forever discharge the judgment.
(b) Liquidated damages. — A judgment creditor who shall fail or refuse for more than 30 days after written notice in the manner prescribed by general rules to comply with a request pursuant to subsection (a) shall pay to the judgment debtor as liquidated damages 1% of the original amount of the judgment for each day of delinquency beyond such 30 days, but not less than $250 nor more than 50% of the original amount of the judgment. Such liquidated damages shall be recoverable pursuant to general rules, by supplementary proceedings in the matter in which the judgment was entered.

(Emphasis added).

In Busy Beaver Building Centers, Inc. v. Tueche, 295 Pa.Super. 504, 442 A.2d 252 (1981), the creditor confessed judgment against debtor; debtor then executed a mortgage in a lesser amount in favor of the creditor, secured by three lots. Debtor’s petition to have the judgment marked satisfied was granted, with the trial court reasoning that “[t]he mortgage was intended to take the place of the judgment note and secure the obligation.” However, the trial court denied debtor’s request for liquidated damages. On appeal, this Court affirmed the order denying debtor’s request for damages:

[T]he term ‘satisfaction’ as used in 42 Pa.C.S. § 8104, in the phrase, ‘having received satisfaction,’ refers to a situation in which a creditor has received payment of the underlying debt obligation.
•*! S[£ ¡[C !}! * *
... [W]e find that entitlement to damages is dependent upon receipt of satisfaction by the judgment creditor, which in turn requires payment in full of the underlying debt instrument. Since appellee is still owed one thousand, eight hundred and nine dollars and eighty-seven cents, it cannot be said to have ‘received satisfaction.’

295 Pa.Superior Ct. at 511-512, 442 A.2d at 255. (Emphasis added). This Court therefore affirmed.

Since the date when Busy Beaver was decided in 1981, the liquidated damages issue has been considered on appeal in only two cases. In Fetherman, supra, the creditor entered judgment in foreclosure in the sum of $27,600. The property was sold at sheriff’s sale, resulting in net proceeds of $26,912.24 to creditor. Creditor did not seek a deficiency judgment for the outstanding amount. Under 42 Pa.C.S.A. § 8103(d), where a creditor fails to seek a deficiency judgment within six months of a sheriff sale, the debtor has the right to have the judgment marked satisfied. Debtor filed a petition to have the judgment marked satisfied and to collect liquidated damages under 42 Pa.C.S.A. § 8104(b). Creditor contended that an outstanding amount remained on the underlying debt, and that the judgment had therefore not been satisfied for purposes of Section 8103. The trial court ordered the judgment marked satisfied and awarded liquidated damages to creditor. On appeal, this Court affirmed the order directing the judgment to be marked satisfied, reasoning that the judgment was satisfied as a matter of law upon the expiration of the six month period during which the creditor could have filed for a deficiency judgment. 338 Pa.Superior Ct. at 327, 487 A.2d at 989. However, relying upon Busy Beaver, supra, this Court reversed the order granting liquidated damages:

As this Court held in Busy Beaver, supra, ‘entitlement to damages is dependent upon receipt of satisfaction by the judgment creditor, which in turn requires payment in full of the underlying debt instrument.’ ... Appellees here, however, failed to pay in full the underlying debt instrument. We are, therefore, constrained to reverse the judgment awarding liquidated damages to appellees.

338 Pa.Superior Ct. at 327-328, 487 A.2d at 990. (Emphasis in original).

On allocatur review, our Supreme Court reversed the portion of our decision which set aside the liquidated damages award. First National Consumer Discount Co. v. Fetherman, supra. Our Supreme Court stated:

[T]he Superior Court erred in finding that the appellee had not received full satisfaction of the underlying debt. According to the Deficiency Judgment Act, the procedure to establish that the judgment creditor did not receive full satisfaction in purchasing the debtor’s real estate is by a petition to fix the fair market value of the property. The appellee did not follow the statutory procedure in this case. The failure to proceed with such a timely petition establishes that the appellee was satisfied in full in kind.
:f. * j[5 * *
We hold that where a judgment creditor purchases the debtor’s real estate at a sheriff’s sale and then fails to petition to fix the fair market value of that real estate within the statutory time limitation, the judgment creditor is deemed to have received full satisfaction in kind of the underlying debt obligation.
■Je * * * a¡ jfc
In a proceeding to recover liquidated damages, the judgment creditor will not be heard to say that he did not receive full satisfaction.

515 Pa. at 95-97, 527 A.2d at 105.

Most recently, the issue of liquidated damages under Section 8104(b) was considered by this Court in Woodstown Construction Incorporated v. Clarke, 362 Pa.Super. 119, 523 A.2d 804 (1987) and on allocatur review in our Supreme Court, Clark v. Woodstown Construction Incorporated, 516 Pa. 519, 533 A.2d 708 (1987). The creditor in that case entered judgment on a note in the amount of $17,900; the parties subsequently negotiated a settlement where the creditor agreed to accept $1,000 as payment in full on the note, and to mark the judgment as satisfied. The creditor delayed in marking the judgment satisfied. On petition of the debtor, the trial court awarded liquidated damages under Section 8104 in the amount of $8,950, representing fifty percent of the amount of the recorded judgment.

On appeal, this Court, after finding that the debtor was not required to make further written demand upon the creditor to mark the judgment satisfied, held that debtor was only entitled to liquidated damages predicated on the payment of $1,000, rather than on the $17,900, the amount of the original note. The court distinguished Busy Beaver, supra:

Our decision herein does not overrule this court’s holding in Busy Beaver Building Centers, Inc. v. Tueche, 295 Pa.Superior Ct. 504, 442 A.2d 252 (1981) (where judgment creditor has not received payment in full on the note, liquidated damages may not be assessed for creditor’s failure to mark note as satisfied). We find this case to be distinguishable from Busy Beaver. There[,] no release agreement existed between the parties. Busy Beaver, although taking a mortgage from the debtor, did not look to the mortgage as satistion [sic] in full of its judgment and contested the debtor’s allegations to the contrary.

362 Pa.Superior Ct. at 123 n. 2, 523 A.2d at 806, n. 2. (Emphasis added).

On appeal, our Supreme Court, without comment, reinstated the liquidated damages amount award entered by the trial court, representing fifty percent of the judgment.

We find that the Fetherman and Woodstown cases are distinguishable from the instant case and debtor’s reliance upon them is misplaced. In both Fetherman and Woodstown, the creditor was precluded from claiming that it had not received satisfaction; because the court found that payment on the underlying debt had been received. In Fetherman, the creditor was held to have received satisfaction in kind by operation of law, whereas the creditor in Woodstown agreed that payment of a lesser amount would represent satisfaction of the judgment. In the instant case, the release merely relieved debtor from his obligation under the bond and warrant which accompanied the mortgage, it did not, however, constitute payment on the underlying debt which remained outstanding and unpaid.

We find Busy Beaver is directly applicable to the matter before us. In the instant case, as in Busy Beaver, the creditor merely released the debtor from his present obligation, it did not however look to the release as satisfaction in full of its judgment and contested debtor’s claim to the contrary. We remain of the opinion that satisfaction of the underlying debt, either by operation of law or by agreement, is a condition precedent to receiving liquidated damages, and as such condition has not occurred in this particular case, we find debtor is not entitled to liquidated damages. Accordingly, we hold that the fact that the remaining debtors have not repaid their debt obligation bars Cutillo from receiving liquidated damages under Section 8104.

CONCLUSION

Based upon the foregoing, we find that the trial court did not err in denying Cutillo’s petition for liquidated damages. Accordingly, we affirm the order of the trial court. Jurisdiction is relinquished.

HESTER, J., files a dissenting opinion.

HESTER, Judge

dissenting:

Although I agree with the majority that the objective standard set forth in 42 Pa.C.S. § 8104 renders unnecessary a determination of whether appellee acted willfully in refusing to mark the judgment satisfied as to appellant, I respectfully dissent. In its opinion, the majority examined the few cases interpreting § 8104 and concluded that an exchange of releases between the parties to a judgment does not amount to “satisfaction.” Consequently, it affirmed the trial court’s denial of liquidated damages. Since I do not believe that either § 8104 or the caselaw interpreting it compels such a result, I would reverse and remand the case so that the trial court may consider the other issues presented by the parties.

42 Pa.C.S. § 8104 states:

(a) General rule. — A judgment creditor who has received satisfaction of any judgment in any tribunal of this Commonwealth shall, at the written request of the judgment debtor, or of anyone interested therein, and tender of the fee for entry of satisfaction, enter satisfaction in the office of the clerk of the court where such judgment is outstanding, which satisfaction shall forever discharge the judgment;
(b) Liquidated Damages. — A judgment creditor who shall fail or refuse for more than 30 days after written notice in the manner prescribed by general rules to comply with a request pursuant to subsection (a) shall pay to the judgment debtor as liquidated damages 1% of the original amount of the judgment for each day of delinquency beyond such 30 days, but not less than $250 nor more than 50% of the original amount of the judgment. Such liquidated damages shall be recoverable pursuant to general rules, by supplementary proceedings in the matter in which the judgment was entered.

In Busy Beaver Building Centers, Inc. v. Tueche, 295 Pa.Super. 504, 442 A.2d 252 (1981), we examined the meaning of the term “satisfaction” in the context of 42 Pa.C.S. § 8104. In that case, Harry Tueche, who purchased goods on credit, executed a judgment note in favor of Busy Beaver. However, he failed to comply with the payment schedule contained therein. Consequently, Busy Beaver recorded the note in the Court of Common Pleas of Washington County and transferred the resulting judgment to Westmoreland County. Thereafter, Tueche and his wife executed a mortgage, which was secured by three lots, in a lesser amount in favor of Busy Beaver. After Busy Beaver released two parcels and had the third sold at a sheriffs sale, it marked the Washington County judgment “satisfied in full.” Later, the Tueches requested Busy Beaver to mark the Westmoreland County judgment satisfied. Busy Beaver refused and the Tueches filed suit. Although the trial court ordered the judgment marked satisfied, it denied the recovery of liquidated damages. On appeal, we concluded that the term “satisfied” meant that the underlying debt obligation had been paid in full. Since the Tueches had not completely paid the debt, we affirmed.

We considered this issue again in First National Consumer Discount Co. v. Fetherman, 838 Pa.Super. 323, 487 A.2d 987 (1985). In Fetherman, First National, which obtained a foreclosure judgment against the Feathermans in the sum of $27,600.00, had one of the two parcels of mortgaged land sold at a sheriffs sale. That sale generated approximately $27,000.00 in net proceeds. Although the sale failed to generate sufficient funds to extinguish the debt, First National never sought a deficiency judgment or began execution proceedings with respect to the other parcel of land. Approximately two years after the sale, the Feathermans’ counsel requested First National to mark the judgment satisfied. It refused and the Feathermans instituted suit in an effort to have the judgment marked satisfied and recover liquidated damages. Following a hearing, the trial court granted the requested relief. On appeal, we followed the principles set forth in Busy Beaver strictly and reversed the award of liquidated damages. Reviewing our order, the supreme court reversed, holding that since respondent did not seek a deficiency judgment, the debt was deemed to have been paid in full. First National Consumer Discount Co. v. Fetherman, 515 Pa. 85, 527 A.2d 100 (1987).

The final case in which we considered the issue of what may constitute “satisfaction” in the context of 42 Pa.C.S. § 8104 is Woodstown Construction, Inc. v. Clarke, 862 Pa.Super. 119, 523 A.2d 804 (1987). There, Woodstown recorded a $17,900.00 judgment note executed by Clarke. Shortly thereafter, it agreed to accept $1,000.00 as full payment on the note, release Clarke from all claims, and mark the judgment satisfied. Since Woodstown did not mark the judgment satisfied, Clarke filed suit seeking an award of liquidated damages. Following a hearing, the trial court awarded him $8,950.00 in liquidated damages. On appeal, we distinguished Busy Beaver and concluded that Clarke was entitled to an award of liquidated damages. However, we vacated the trial court’s order and remanded the case for the assessment of damages predicated on Clarke’s payment of $1,000.00 rather than on fifty percent of the judgment. The supreme court, in a per curiam order, subsequently reversed and reinstated the trial court’s award. Clarke v. Woodstown Construction, Inc., 516 Pa. 519, 533 A.2d 708 (1987).

As my discussion of the caselaw construing § 8104 reveals, the meaning of the term “satisfaction” has evolved greatly since we decided Busy Beaver. The two subsequent case's considering this issue, Featherman and Woods-town, limited the expansive language of Busy Beaver. In those cases, we held that a judgment may be satisfied by operation of law and by an agreement to accept as full payment a sum that is less than the amount actually owed. Although Pennsylvania appellate courts have never decided whether an exchange of releases may constitute “satisfaction” of a judgment under § 8104, I believe that such a holding is the next logical step in the evolutionarily process described above and, consequently, one that we should adopt. Therefore, I would hold that a mutual exchange of releases may amount to “satisfaction” under § 8104.

Although appellant was released from his obligation with respect to the judgment, the majority held that the failure of the two remaining debtors to satisfy the underlying obligation defeated his right to recover liquidated damages. Since the majority’s analysis focuses on conduct of parties for whom appellant is neither responsible nor able to control, I cannot agree.

The obvious purpose of § 8104 is to provide protection for judgment debtors who have satisfied their judgments from the adverse impact that a judgment that has not been marked satisified could have upon their financial affairs. The majority’s conclusion would defeat this purpose. Therefore, I would reverse and remand the case to the trial court for consideration of the other issues raised by the parties below.

      . The trial court observed that this belief was incorrect:
      "[t]he correct rule appears to be that the release of one joint and several obligor, without reservation of rights against the others, releases the others from their joint but not from their several obligations.” (Trial Ct. Opinion at 13). See Singer v. Ritter, 167 Pa.Super. 154, 74 A.2d 520 (1950).

      . Act of May 28, 1715, 1 Sm.L. 94, § 10, 21 P.S. § 682. Act of April 13, 1791, 3 Sm.L. 28, § 14, 12 P.S. § 971.

      . The creditor did not appeal the portion of the order granting the petition to have the judgment marked satisfied. This Court expressly refrained from deciding whether the trial court acted properly in ordering the judgment marked satisfied.

      . Featherman v. First National Consumer Discount Co., 338 Pa.Super. 323, 487 A.2d 987 (1985).


text:
    549 A.2d 997
    Kenneth LEONARD, Shirley Buffner and David L. Leonard, Administratrix of the Estate of Elizabeth Gault, a/k/a Betty Gault: v. LATROBE AREA HOSPITAL and George E. Mamo, M.D., Appellants.
    Superior Court of Pennsylvania.
    Argued May 4, 1988.
    Filed Oct. 24, 1988.

      Gayle L. Godfrey, Pittsburgh, for appellants.
    Anthony W. DeBernardo, Jr., Greensburg, for appellees.
    Before CIRILLO, President Judge, and BECK and POPOVICH, JJ.
   BECK, Judge:

The issue is whether a party in a negligence action can discover from the hospital those patient records protected by the confidentiality provision of the Mental Health Procedures Act, where the hospital has transferred those records to its attorney and insurance carrier, who are non-parties to the suit.

Appellants, a hospital and a psychiatrist, appeal from an interlocutory order of the trial court directing them to supply the appellees with the medical records of a patient, a non-party to the suit. The order of the trial court directs the hospital to supply those records which are in the possession of the hospital’s attorneys and insurance company, who are also not parties to the suit. Appellants argue that they are barred from producing the records by the confidentiality provision of the Mental Health Procedures Act, 50 Pa. Stat.Ann. § 7111 (Purdon 1983). Appellees admit that the statute binds the hospital and that the hospital itself cannot disclose any of the records in its own possession. However, appellees assert that the order does not direct the hospital to violate the statute, but simply directs that those records now in the hands of the hospital’s insurance carrier and attorneys be made available to appellees. We find that the order at issue does in fact direct appellants to violate the confidentiality provision of the Mental Health Procedures Act; we therefore vacate the order.

Appellees are the children of, and administrators of the estate of, Elizabeth Gault. Elizabeth Gault was killed by her husband, James Gault, in November, 1983. Before the homicide, James Gault had been treated at appellant hospital for a psychiatric disorder. Appellees brought this suit, alleging that the death of their mother was a direct and proximate result of the negligence of appellants in treating and discharging James Gault. Appellees filed a Request for the Production of Documents below in an attempt to obtain from appellant hospital the medical records of James Gault, who is not a party to this action. Appellants refused to release the records without the written consent of James Gault, pursuant to the provisions of 50 Pa.Stat.Ann. § 7111 (Purdon 1988). The trial court denied appellees’ motion for sanctions. Through interrogatories it was revealed that the hospital’s attorneys and its insurance company had possession of the records for purposes of the lawsuit. The appellees again presented a motion for sanctions, arguing that the confidentiality statute did not apply to records in the hands of insurance companies or attorneys. The trial court then entered an order requiring the appellants to supply the appellees with any and all medical records which were in the possession of the insurance company or attorneys. The order was then certified for appeal.

The Mental Health Procedures Act, Section 7111, provides the following:

All documents concerning persons in treatment shall be kept confidential and, without the person’s written consent, may not be released or their contents disclosed to anyone except:
(1) those engaged in providing treatment for the person;
(2) the county administrator, pursuant to section 110;
(3) a court in the course of legal proceedings authorized by this act; and
(4) pursuant to Federal rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a Federal agency.
In no event, however, shall privileged communications, whether written or oral, be disclosed to anyone without such written consent.....

50 Pa.Stat. Ann. § 7111 (Purdon 1988).

Appellees do not contest the applicability of the statute to the records at hand. Neither do appellees contest the standing of appellants to assert the confidentiality of the records under the statute. Appellees do not argue that the appellants waived the confidentiality of the statute by releasing the records to certain third parties. Rather, appellees concede that appellants are legally bound by the statute and are not at liberty to disclose the records to anyone.

Appellees argue that they are not seeking records in the hands of a treatment facility which is bound by the confidentiality statute. Rather, they contend that the documents are in the possession of non-parties who are not bound by the statute. Appellees contend, and rightly so, that relevant materials in the hands of non-parties to a suit are generally discoverable. Appellees err, however, by requesting that the appellants themselves release the records to appellees. Ordering the appellants themselves to produce those records directs appellants to violate the confidentiality statute, which appellees agree is binding upon the appellants. This violation cannot be disguised by the fiction that the hospital is simply asking the attorneys and insurance company to return the already disclosed records to the appellant so that the appellants can then give them to appellees.

Appellees erred procedurally in attempting to obtain from the hospital documents which are in the hands of a third person non-party to the lawsuit. We agree with appellees that relevant documents in the hands of third persons are discoverable. However, the Civil Rules of Procedure delineate the proper discovery procedure to be used when discoverable documents are in the hands of a person not a party to the suit. Rather than request that the appellants retrieve those records in the hands of the non-parties, appellees should have attempted to have the non-parties themselves produce the records. A subpoena duces tecum or an independent action in equity against the non-parties are the methods prescribed by the Rules for obtaining such documents from non-parties. Pa.R.Civ.Proc. 4007.1(d) and 4009(c).

Therefore, we vacate the Order of the court below and remand for proceedings consistent with this opinion. Jurisdiction relinquished.

      . 50 Pa.Stat.Ann. § 7111 (Purdon 1988).

      . The interlocutory order is properly before this Court on appeal, having been certified by the trial court .according to 42 Pa.Cons.Stat. Ann. § 702(b) (Purdon 1983). Appellant filed a petition for Permission to Appeal pursuant to Rule 1311 of the Rules of Appellate Procedure and was granted permission to appeal by this Court.

      . Appellees do not argue that appellants, by violating the confidentiality of the records once, have waived the statute and can therefore be forced to violate it again. Thus, the issue of whether the disclosure to the insurance company and attorneys was in fact a violation is not presented here. Therefore, we do not address the question of whether the attorneys and insurance company received those records as agents of appellants and are also bound to keep those records confidential.

      . We do not now decide the question of whether the appellant’s attorneys or the insurance company could refuse to produce the documents on grounds of confidentiality.


author: TAMILIA, Judge:

text:
    549 A.2d 999
    Martin T. HUTCHINSON, Appellant, v. Barbara Ann HUTCHINSON.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1988.
    Filed Oct. 28, 1988.

      James L. Moran, Erie, for appellant.
    Ann H. Gamble, Titusville, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.
   TAMILIA, Judge:

This appeal evolves from a custody dispute between appellant and appellee who are the parents of two young boys, ages eight and six. Pursuant to a separation agreement and subsequent court Order, appellant was the primary caretaker of the children with appellee having visitation as agreed upon by the parties with the minimum visitation schedule being alternate weekends and holidays. Due to appellant working the swing shift consisting of considerable evening and weekend hours, appellee spent every weekend and some evenings with the boys. This arrangement changed, however, with appellant’s new work schedule and appellee’s remarriage. Once appellant no longer had to work evening and weekend hours, he insisted upon visitation being limited to the minimum set forth in the agreement. Although appellant claims his insistence was due to his free time being the same as appellee’s, this limiting of appellee’s visitation coincided with appellee’s remarriage. Appellant testified he was concerned about the children’s welfare since he believed appellee did not supervise the children closely enough or discipline them properly.

Appellee petitioned the court for a change of custody which ultimately resulted in her receiving shared custody and a considerable increase in visitation over what she had been given under the prior Order. Appellant appeals from this new Order, raising two issues: 1) whether the trial court erred in modifying the custody Order when appellee failed to prove a substantial change in circumstances; and 2) whether modification was in the best interest of the children.

Although we have a broad scope of review in custody matters, we cannot replace the trial court’s determination with our own independent determination. Only where the trial court commits a gross abuse of discretion will we interfere with its decision. Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987). After thoroughly reviewing the record we find no reason to interfere with the trial court’s Order.

Appellant claims there has not been a substantial change in circumstances which would warrant reconsideration of the prior custody Order. The law in Pennsylvania has changed, however, under Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988), and changed circumstances are no longer required for a court to review custody Orders. “[W]e hold that a petition for modification of a partial custody to shared custody order requires the court to inquire into the best interest of the child regardless of whether a ‘substantial’ change in circumstances has been shown.” Id., 518 Pa. at 607-608, 544 A.2d at 1332.

Notwithstanding the fact changed circumstances are not required to initiate the inquiry and the focus must be the best interests of the children, we find there were substantial changed circumstances in this case which impel review of what is in the children’s best interest to justify the trial court’s consideration of appellee’s motion. Best interest cannot be considered in a vacuum and were the circumstances unchanged from those that resulted in the initial custody arrangement, it must be presumed that what was in the child’s best interest continues. What Karis has required is that without a preliminary showing of changed circumstances, the review of what is in the child’s best interest must be entertained despite spurious petitions and unsubstantiated contentions. Thereafter, if the court perceives that it is in the child’s best interest because of some shifting circumstance or need occasioned by the dynamism of the process of growth and maturity of the children, as well as the circumstances of their parents’ lives, best interest requires a degree of flexibility such as would allow the court the discretion to make necessary changes. Thus changed circumstances is incorporated into the review of best interest instead of being a prerequisite for undertaking that review. Appellant’s changed work schedule resulted in the parties competing for time with the children since appellant now was off work every weekend and evenings which had often been appellee’s visitation time. Appellant severely cut back appellee’s visitation to the minimum set forth in the agreement. As the court found, appellee stabilized her financial and emotional position by remarrying and she holds a job with the United States Postal Service which is only two hours per day. This allows her plenty of free time during the day to spend with the boys while appellant is at work, although appellant has refused to agree to this. Under these circumstances, the court was correct in deciding a review of the custody Order was necessary. Karis requires it.

Our goal in child custody matters is to do what is in the best interests of the children. The trial court concluded the best interests of the boys would be served by spending more time with their mother than appellant had allowed, even though the boys expressed a desire to keep things the same. The court determined the boys’ feelings were influenced too much by appellant to be very reliable. Although a child’s preference should be considered, it is not controlling. Bresnock v. Bresnock, 346 Pa.Super. 563, 500 A.2d 91 (1985).

Our review of the record leads us to find the trial court did not abuse its discretion in awarding shared custody to appellee. Appellant has not met his burden of proving otherwise, therefore, we must affirm the trial court’s Order.

ORDER AFFIRMED.

      . Karis involved a petition for change in a custody agreement incorporated into a court Order. While the Supreme Court ruled in Karis that the inquiry into changed circumstances is not required, citing lack of such requirement in the Custody and Grandparents’ Visitation Act, 23 P.C.S. § 5301 et seq., query whether the legislative intent was to eliminate such a requirement in light of the more recent legislation amending the Divorce Code in February 1988, Act 13, Section 401.1, 23 P.S. § 401.1, which provides:
      Section 401.1 Effect of agreement between the parties
      (b) A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances. (Emphasis added.)
      If we apply Karis in its broadest sense, then we must ignore the amendment to the Divorce Code of February 12, 1988. It will also require future clarification as to whether the Karis holding is limited to cases in which the requested modification is from sole custody or partial custody to shared custody. Citing to 23 Pa.C.S. § 5310, Karis, 518 Pa. at page 606-607, 544 A.2d at page 1331, states: "The language of the statutory section is plain and unambiguous; the words allow for modification of any existing custody order any time the best interest of the child requires such.”