author: KELLY, Judge:

text:
    552 A.2d 1124
    COMMONWEALTH of Pennsylvania v. Thomas Edward OSTEEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1988.
    Filed Jan. 11, 1989.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.

      Stephen J. Lagner, Assistant District Attorney, Erie, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and KELLY, JJ.
   KELLY, Judge:

Appellant appeals from judgments of sentence alleging that the sentences imposed are excessive, and that the trial court abused its discretion by rejecting the sentencing recommendation which the prosecutor made pursuant to a plea bargain. We affirm judgments of sentence, and deny the petitions for allowance of appeal of the discretionary aspects of the sentences imposed.

FACTS AND PROCEDURAL HISTORY

On Wednesday, October 7, 1987, appellant pled guilty to charges of false reports to law enforcement authorities and loitering and prowling at night. The only inducement offered by the Commonwealth for that plea was an agreement to nol pros a summary charge of criminal mischief. (N.T. 10/7/87 at 7).

On Friday, December 4, 1987, appellant entered a plea of no contest to charges of simple assault and a summary offense of harassment. The factual predicate for these charges was that appellant chased another individual up a street with a baseball bat, putting that individual in fear of imminent serious bodily injury. To induce this plea, the Commonwealth agreed that the summary harassment conviction would be considered to merge with the simple assault conviction, and the prosecutor would recommend to the court at sentencing that a term of probation should be imposed upon the simple assault conviction to be served consecutive to whatever sentence was imposed upon the convictions for false reports and loitering and prowling. (N.T. 12/4/87 at 2; see also N.T. 1/28/88 at 7).

A comprehensive pre-sentence report, a psychological report, and a victim impact statement were prepared, and were reviewed by counsel and the trial court prior to sentencing. On January 28,1988, a sentencing hearing was held wherein defense counsel presented argument toward mitigation of sentence. (N.T. 1/28/88 at 2-7). The prosecutor, while continuing its recommendation of consecutive probation on the simple assault conviction, noted various factors which weighed in favor of incarceration on the false reports and loitering and prowling convictions. (N.T. 1/28/88 at 8-9).

Following counsels’ arguments, the trial court outlined in detail the various sentencing factors it considered. (N.T. 1/28/88 at 9-17). The trial court proceeded to sentence appellant to a term of imprisonment of twelve to twenty-four months on the false reports conviction and a consecutive term of imprisonment of six to twelve months on the loitering and prowling at night conviction, plus restitution in the amount of thirteen dollars and ninety-five cents for replacement of a window broken in the incident. (N.T. 1/28/88 at 17-18). The trial court then specifically rejected the prosecution’s recommendation of consecutive probation for the simple assault conviction, and instead sentenced appellant to a term of imprisonment of twelve to twenty-four months imprisonment to be served consecutive to the sentences previously imposed. Thus, appellant was sentenced to an aggregate term of imprisonment of two and one-half to five years imprisonment.

A timely motion to reconsider the sentences imposed was filed which challenged the sentences as excessive and contrary to the agreed plea bargain. This motion was granted in part on February 1, 1988, by reducing the sentence on the simple assault conviction from a term of twelve to twenty-four months imprisonment to a term of six to twelve months imprisonment. The new aggregate sentence was two to four years imprisonment. On February 4, 1988, appellant renewed his motion to reconsider sentence on the same grounds previously raised. This motion was denied on February 5, 1988.

On February 19,1988, the trial court directed appellant to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. Appellant filed two identical statements on February 24, 1988, which essentially incorporated by reference its Motion for Reconsideration of Sentence as appellant’s statement of matters complained of on appeal. On March 3, 1988, the trial court filed a Pa.R.A.P. 1925(a) opinion which indicated that the trial court considered its statements at the sentencing hearing sufficient to explain its reasons for the sentences imposed, and which also stated that appellant’s boilerplate Pa.R.A.P. 1925(b) statement left the court unable to determine what issues appellant intended to pursue on appeal. The trial court concluded that appellant’s non-compliance with Pa.R.A.P. 1925(b) waived all issues on appeal. The appeals were nonetheless briefed and argued in this Court, and are now before us for disposition.

I. Pa.R.A.P. 1925(b)

We agree with the trial court that appellant’s incorporation by reference of appellant’s Motion for Reconsideration of Sentence in the purported Pa.R.A.P. 1925(b) statements failed to comply with the letter or spirit of Pa.R.A.P. 1925(b). The purpose of the Pa.R.A.P. 1925(b) statement is to specify the particular issues which appellant intends to present on appeal in order to permit the trial court an opportunity to provide the appellate court with a focused and meaningful explanation for any challenged actions in its Pa.R.A.P. 1925(a) opinion. See Commonwealth v. Mueller, 341 Pa.Super. 273, 491 A.2d 258 (1985); Commonwealth v. Mathis, 317 Pa.Super. 362, 464 A.2d 362 (1983). A comparison of appellant’s statements of questions presented in the briefs filed with this Court and the ten separate allegations of error contained in the appellant’s motions to reconsider the sentences imposed demonstrates the inadequacy of appellant’s Pa.R.A.P. 1925(b) statements to attempt to focus that inquiry, and the ease with which a clear focus might have been achieved with a single brief statement of the issues to be raised on appeal. Nonetheless, we decline to exercise our discretion to deem the issues raised on appeal waived on that basis. See Commonwealth v. Silver, 499 Pa. 228, 452 A.2d 1328 (1982). We have two reasons for this decision.

First, assuming that the procedural defect is even significant enough to warrant attention, dismissal of an appeal on grounds of procedural default would improperly place the burden of such default upon the client rather than the offending counsel. Moreover, at least with respect to criminal appeals, dismissal would merely breed further delay and expense, through the inevitable collateral appeal raising counsel’s ineffectiveness under the Post Conviction Hearing Act. The more appropriate course in such cases is to direct erring counsel to comply with the mandate of the procedural rule, upon pain of contempt. See Commonwealth v. Zeitlen, 366 Pa.Super. 78, 530 A.2d 900 (1987); id., 530 A.2d at 903-04 (Kelly, J., concurring).

Second, the absence of proper Pa.R.A.P. 1925(b) statements in no way impairs our review or disposition of these appeals. We agree with the trial court that its detailed remarks at the sentencing hearing are a more than sufficient statement of its reasons for the actions challenged in these appeals. Hence, despite the plain violation of the letter and spirit of Pa.R.A.P. 1925(b), we will not dismiss these appeals on that basis.

II. REJECTION OF PROSECUTOR’S SENTENCING RECOMMENDATION

Appellant argues, as part of his contention that the sentences imposed were excessive, that the trial court rejected the prosecution’s sentencing recommendation, “while knowing that the defendant had expected the judge to honor the recommendation since it was part of the plea bargain.” (Appellant’s Brief at 9). Such a claim is not, strictly speaking, a challenge to the excessiveness of the sentence; rather, it is properly addressed to the validity of the appellant’s plea.

If, in fact, the plea agreement had been violated, the proper course for appellant to have taken would have been to move to withdraw his “no contest” plea within ten days of sentencing. See Commonwealth v. Shaffer, 498 Pa. 342, . 346 n. 2, 446 A.2d 591, 593 n. 2 (1982); Commonwealth v. Herberg, 306 Pa.Super. 245, 249, 452 A.2d 536, 537 (1982); Commonwealth v. Fazenbacker, 248 Pa.Super. 433, 375 A.2d 175 (1977); Pa.R.Crim.P. 319(b). No such motion was filed.

Regardless, no such motion would have been appropriate, as appellant received precisely what he was promised under the plea agreement. The transcript of the December 4, 1987 hearing contains the following exchange:

Mr. Osteen is charged with one count of simple assault and one count of harassment as a summary. Mr. Osteen is pleading to simple assault and the harassment would merge. We would further recommend consecutive probation to an outstanding Information at 1085 of 1987. ******
MR. SCUTELLA: You understand the plea bargain as I have outlined it to the Court?
THE DEFENDANT: Yes.
MR. SCUTELLA: Have any other promises or threats been made to you to encourage you to plead guilty?
THE DEFENDANT: No.
MR. SCUTELLA: Have any promises been made as to what the sentence of the Court would be other than the recommendation of a consecutive probationary sentence?
THE DEFENDANT: No.
MR. SCUTELLA: You understand the Court is not bound by the recommendation. The Court can sentence you up to the maximum recommendation made by law consecutive to the other Information?
THE DEFENDANT: Yes.
MR. SCUTELLA: The Judge who accepts your plea today may not be the Judge who sentences you, and you will not be allowed to withdraw your plea if another Judge sentences you, do you understand that?
THE DEFENDANT: Yes.
MR. SCUTELLA: Mr. Osteen, would you sign here indicating I have gone over your rights with you? (Defendant complies.)

(N.T. 12/4/87 at 2, 4). (Emphasis added). That oral exchange during the plea colloquy was reinforced by the following written acknowledgment signed by appellant and his counsel:

4. I understand that the maximum sentence for the crime(s) to which I am pleading no contest is: Ct. 1 — $5,-000/2 yrs.
5. I understand that any plea bargain in my case is set forth here and that there has been no other bargain and no other promise or threat of any kind to induce me to plead no contest. The only plea bargain in my case is: None. The defendant will plead nolo contendere to Count 1 and Count 2 will merge. The Commonwealth recommends consecutive probation to # 1085 of 1987. MRC: jac
6. I understand that the Judge is not bound by the terms of any plea bargain unless he chooses to accept it. The Judge will announce his decision at the conclusion of the plea colloquy which follows my signing this paper. If the Commonwealth agrees to make a sentencing recommendation on my behalf, the Judge will not be bound by this recommendation and I understand that I will not be permitted to withdraw my no contest plea if this should occur.
7. I understand that the Judge who accepts my plea may NOT be the Judge who imposes sentence in my case under Erie County Court Rules. It is still my desire to plead no contest.
I HAVE SIGNED THIS PAPER ONLY AFTER FIRST READING AND REVIEWING IT.

(Defendant’s Statement of Understanding of Rights Prior to No Contest Plea, 12/4/87). (Emphasis added).

The above plea bargain created no expectation whatsoever as to what sentence would be imposed. By its clear and fully explained terms, the plea bargain was expressly limited to what sentence the prosecutor would recommend, not what sentence the court would impose. Thus, the prosecutor completely fulfilled his part of the plea bargain at sentencing by offering the recommendation as agreed. (N.T. 1/28/88 at 8). To have permitted appellant to withdraw his no contest plea based upon the trial court’s rejection of the prosecution’s recommendation, would have ignored the clear limits of the plea agreement and would have permitted precisely the kind of “sentence-testing” which our Supreme Court expressly condemned in Shaffer, 446 A.2d at 592-93; see also Commonwealth v. Herberg, supra, 452 A.2d at 537. Consequently, we reject entirely appellant’s suggestion that his plea bargain was broken.

III. ALLEGED EXCESSIVENESS OF SENTENCES

Appellant contends that the sentences imposed were excessive. We note initially that he has complied with the basic procedural dictates of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), by filing timely notice of appeal and by complying with the dictates of Pa.R.A.P. 2116(b) and Pa.R.A.P. 2119(f). However, with the exception of the claim disposed of separately above, appellant’s statements of reasons for allowance of appeal merely challenge the weight given various legitimate sentencing factors by the trial court; consequently, we deny allowance of appeal for lack of a substantial question. See Commonwealth v. Carr, 375 Pa.Super. 168, 543 A.2d 1232 (1988); Commonwealth v. Moran, 369 Pa.Super. 109, 534 A.2d 1103 (1987).

CONCLUSION

Judgments of sentence are affirmed.

DEL SOLE, J., concurs in the result.

      . We note, however, that trial court’s detailed statement of the reasons for the sentences imposed was not only adequate (see Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988)), it was compelling. The record fully sustains the trial court’s evaluation of appellant as a habitual juvenile offender whose substance abuse problems and violent propensities continued unabated as he entered into young adulthood despite prior rehabilitative efforts. (See N.T. 1/28/88 at 9-17). Sentences of incarceration were plainly appropriate.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    552 A.2d 1128
    COMMONWEALTH of Pennsylvania, Appellant, v. James Paul CHERMANSKY, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1988.
    Filed Jan. 26, 1989.

      Patricia E. Coonahan, Assistant District Attorney, Cheltenhan, for Com., appellant.
    Michael J. D’Aniello, Norristown, for appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   WIEAND, Judge:

The Commonwealth has appealed from an order granting habeas corpus and dismissing criminal charges against James Paul Chermansky because on two prior occasions the charges were dismissed when essential prosecution witnesses failed to appear for a preliminary hearing.

Chermansky was arrested on July 5, 1987 and charged with aggravated and simple assault, recklessly endangering another person, disorderly conduct, and possessing an instrument of crime as a result of an altercation which had occurred on the preceding day. At the preliminary hearing on July 21, 1987, the complaining witnesses, James Oney and Lorenzo Masadden, failed to appear. Consequently, the charges were dismissed. Chermansky was then rearrested, and a second preliminary hearing was scheduled for September 8, 1987. When the complaining witnesses again failed to appear, the charges were dismissed a second time. Chermansky was then arrested for a third time, but this time he filed a petition for habeas corpus.

At the hearing thereon, Chermansky did not testify or produce evidence. Presenting testimony on behalf of the Commonwealth were Officer Joseph Dewees, a Norristown policeman and the prosecuting officer; James Oney; Michelle Farrell, the mother of Lorenzo Masadden, a juvenile; and John White, an alleged eyewitness. Dewees testified that Oney and Masadden, the alleged victims, had been notified of the first preliminary hearing and had appeared five minutes after the magistrate had dismissed the charges. Dewees testified also that he did not know whether Oney and Masadden had been given notice of the second preliminary hearing. The witnesses confirmed the prosecuting officer’s testimony regarding the first preliminary hearing and testified uniformly that they had not been given notice of the second preliminary hearing. The trial court, however, determined that their testimony was not credible and found that they had no intention of ever testifying against Chermansky. The court said:

Although the delay in the present case is the result of the Commonwealth’s attempts to secure the attendance of witnesses, it is an unreasonable delay where there is no realistic expectation that the alleged victims will testify. The anxiety, concern, and embarrassment that necessarily attend the repeated filing of criminal charges and rearrest of a Defendant must end at some point in time. After two attempts at a preliminary hearing where duly notified Commonwealth witnesses do not appear, that time has arrived.

The habeas corpus petition, therefore, was granted, and the charges against Chermansky were dismissed. The Commonwealth appealed.

The law in this Commonwealth is that a defendant may be rearrested after the charges against him have been dismissed at a preliminary hearing so long as the period prescribed by the statute of limitations has not expired. See: Commonwealth v. Revtai, 516 Pa. 53, 74, 532 A.2d 1, 11 (1987); Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). See also: Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978); Riggins Case, 435 Pa. 321, 254 A.2d 616 (1969); McNair’s Petition, 324 Pa. 48, 187 A. 498 (1936); 26 Std.Pa.Prac.2d § 132:160.

The only case to cast doubt on the continuing validity of this rule is Commonwealth v. Sandly, 371 Pa.Super. 486, 538 A.2d 546 (1988). There, the prosecuting officer failed to appear to give testimony at a preliminary hearing for a defendant who had been charged with driving while under the influence of alcohol. Consequently, the magistrate dismissed the charges. The defendant, however, was promptly rearrested. After the charges had been returned to court, he filed a petition for writ of habeas corpus in which he asked the court to dismiss the charges because the complaint had been filed in violation of Pa.R.Crim.P. 130(d). The trial court, without hearing, entered an order dismissing the charges. The Superior Court reversed and remanded for a hearing to determine whether the defendant had been prejudiced because the second complaint had not been filed within the time prescribed by the rule. Such a hearing, the Superior Court held, was mandated by Supreme and Superior Court decisions in Commonwealth v. Revtai, supra, and Commonwealth v. Schimelfenig, 361 Pa.Super. 325, 522 A.2d 605 (1987). By way of dictum, however, the Court said, “failure to appear at a preliminary hearing by the Commonwealth is not a ‘minor, technical failure to comply’ with procedures our Supreme Court addressed in Revtai, but rather a fundamental violation of a defendant’s right to due process that should warrant dismissal of the complaint.” Id., 371 Pa.Super. at 490, 538 A.2d at 548. Nevertheless, the Court said, “in accordance with the Supreme Court’s decision in Revtai, we hold that it was error to dismiss the charges” without a hearing to determine whether there was prejudice. Id., 371 Pa.Superior Ct. at 490-491, 538 A.2d at 548.

The decision in Sandly was controlled by the Supreme Court’s decision in Revtai. Therefore, the expression of the Sandly majority’s belief that the Commonwealth’s failure to appear at a preliminary hearing was a violation of a defendant’s right to due process was pure dictum. As such, it is not binding precedent. It did not have the effect of overruling an entire line of cases in this Commonwealth which have held that a criminal defendant may be rearrested after charges against him have been dismissed at a preliminary hearing so long as prosecution is not time barred.

This is not a case in which the Commonwealth has repeatedly rearrested a defendant, against whom it cannot establish a prima facie case, for the purpose of harassing him. Neither is it a case in which the defendant has demonstrated that prejudice resulted from his rearrest. There was no evidence from which the trial court could have found that the Commonwealth intended to harass the defendant or that the defendant sustained prejudice as a result of his being rearrested. Moreover, the circumstances were not such as to permit harassment or prejudice to be inferred solely from the fact that appellant had twice before been charged with the same offenses.

The trial court has explained that its decision was predicated upon a finding that the complaining witnesses did not ever intend to testify against the defendant. This finding is binding upon us only if it is supported by competent evidence. See: Commonwealth v. Hamlin, 503 Pa. 210, 215, 469 A.2d 137, 139 (1983); Commonwealth v. Hall, 475 Pa. 482, 486-487, 380 A.2d 1238, 1240-1241 (1977); Commonwealth v. Janiak, 368 Pa.Super. 626, 629, 534 A.2d 833, 834 (1987). Our review of the record discloses no evidence to support such a finding. The defendant offered no evidence whatsoever, and the trial court’s determination that the Commonwealth’s witnesses were not credible does not support an affirmative finding that they had no intention of ever testifying against appellant.

The only evidence in this case was that the complaining witnesses had arrived at the first preliminary hearing five minutes after the charges had been dismissed and that they had not been given notice of the second preliminary hearing. The trial court could, as it did, find that the Commonwealth’s witnesses were not credible. However, its determination that these witnesses were not credible did not permit a finding, in the absence of affirmative evidence, (1) that the defendant was being harassed; (2) that the complaining witnesses had received notice of the second preliminary hearing; (3) that the complaining witnesses did not intend to testify against the defendant; or (4) that defendant had suffered prejudice because of the witnesses failure to appear at the first two preliminary hearings.

In the absence of any evidence that the defendant would suffer prejudice or that the Commonwealth was harassing him, we perceive no valid reason for refusing to apply the general rule permitting a defendant to be rearrested after criminal charges have been dismissed at a preliminary hearing.

Reversed and remanded for further proceedings. Jurisdiction is not retained.

      . Pa.R.Crim.P. 130(d) provides:
      (d) When a defendant is released pursuant to paragraphs (b) or (c), a complaint shall be filed against the defendant within five (5) days of the defendant’s release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110.

      . The trial court did not reject or find unbelievable the testimony of the prosecuting police officer.


author: CAVANAUGH, Judge:

text:
    552 A.2d 1131
    Tanya BARONTI, Appellant, v. Ronald BARONTI, Appellee. Tanya BARONTI, Appellee, v. Ronald BARONTI, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1988.
    Filed Jan. 24, 1989.

      Elaine V. Preston, Pittsburgh, for Ronald Baronti.
    Jay A. Blechman, Pittsburgh, for Tanya Baronti.
    Before CAVANAUGH, TAMILIA and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This matter is before us on consolidated appeals from orders of the lower court regarding a complaint for support filed by Tanya Baronti against her father Ronald Baronti for educational expenses. After the filing of the complaint, father filed preliminary objections challenging the personal jurisdiction of the court. The lower court issued an order on September 23, 1987 granting the preliminary objections and dismissing the complaint. Upon reconsideration, sua sponte, the lower court on February 19,1988, reinstated the complaint and dismissed the preliminary objections. Finally, the lower court issued an order on March 14, 1988 in which it cancelled a hearing set for March 2, 1988 since it appeared that it was without jurisdiction to enter the February 19th order.

Tanya Baronti, daughter, took a timely appeal from the order of September 23rd. Ronald Baronti, father, took a timely appeal from the order of February 19th. Since both appeals center on a single issue, i.e., whether the lower court has personal jurisdiction over father, the appeals were consolidated. Therefore, the issue is properly before us for resolution.

The challenge to the exercise of personal jurisdiction over father is based upon the necessity of a defendant’s maintenance of minimum contacts with a forum state before a court of that state may subject that defendant to its jurisdiction. The requirement of minimum contacts is mandated as a matter of due process, as set forth in the Fourteenth Amendment of the Constitution of the United States. Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). The federal constitutional requirements are incorporated into the law of Pennsylvania at 42 Pa.C.S.A. § 5322(b). The federal standard regarding minimum contacts is one of reasonableness. There must be a sufficient connection between the defendant and the forum state as to make it fair to require defense of the action in the forum; an essential criterion in all cases is whether the quality and nature of the defendant’s activity is such that it is reasonable and fair to require him to conduct his defense in the forum state. Kulko, supra, at 91-92, 98 S.Ct. at 1696-1697, citing International Shoe Company v. Washington, 326 U.S. 310, at 316-317, 66 S.Ct. 154, at 158-159, 90 L.Ed. 95 (1945).

We are required to examine all of father’s contacts with Pennsylvania as forum state in order to determine the reasonableness of requiring him to defend this support action.

The record reveals the following salient facts: father, as early as November 25, 1981, has been involved in litigation concerning support of his children in Allegheny County, Pennsylvania. Court documents filed in 1982 through 1986 list father’s residence and employment addresses as being in Pittsburgh, Pennsylvania. Father and his former wife, Barbara Thompson, have three children all of whom, at one time, were the subject of support orders entered by the Court of Common Pleas of Allegheny County. Tanya was born on March 26, 1968, and reached the age of majority on March 26, 1986. On February 14, 1986 the lower court entered an order suspending its previous support orders since plaintiff (Tanya’s mother, Barbara Thompson) desired to receive support payments directly from father. Father states in his brief to this court that he made support payments to Tanya under court order until February 12, 1986 and then voluntarily until Tanya discontinued all communication with father. Father’s affidavit states that he has been a resident of Anne Arundel County, Maryland since May, 1986. He argues that the order entered February 14, 1986 suspending payment constituted termination of personal jurisdiction over him. He further argues that voluntary payments made by him after February 14th do not serve as a basis for the exercise of personal jurisdiction.

We find that the Court of Common Pleas of Allegheny County does have personal jursidiction over father based upon the extensive contacts he has had with the forum state as a former resident, as a father of a child who has been a continuous resident of the forum state, and as a party to ongoing support litigation in Allegheny County.

We determine that it is reasonable and fair to require father to defend this support action for eductional expenses by his daughter since there has been ongoing support litigation in the forum state in the county of which defendant was a former resident and of which his daughter remains a resident. “Once the court obtains jurisdiction in a support matter it continues notwithstanding a change of residence by the defendant.” Commonwealth ex rel. Wheeler v. Wheeler, 274 Pa.Super. 478, 483, 418 A.2d 506, 509 (1980).

Father knows that his child Tanya remained in the state in which she was raised. Father voluntarily left Pennsylvania in 1986, shortly after Tanya attained the age of majority. By his own statements, he continued voluntary support of Tanya for a period of time after the order of February 14, 1986 suspended his obligation to pay support into the court. Since this complaint was originally filed on January 15, 1987, and refiled on June 24, 1987, we find that the contacts father had had with the forum state were sufficient to allow the exercise of personal jurisdiction over him. Father maintained minimum contacts with Pennsylvania since his daughter continued to live here after his departure for Maryland and since he was party to ongoing support litigation, the latest order which merely “suspended” rather than terminated his support obligation. See, Rogers v. Rogers, 295 Pa.Super. 160, 441 A.2d 398 (1982).

Since there is a sufficient connection between father and Pennsylvania as to make it fair to require him to defend the support action, we vacate the order of September 23, 1987 and remand for proceedings consistent with this opinion, at appeal number 1483 Pittsburgh 1987.

Appeal at 472 Pittsburgh 1988 is quashed.

Jurisdiction is relinquished.

      . We find that the lower court did not have jurisdiction to sua sponte reconsider its order of September 23, 1987 after the timely appeal had been taken to this court. Pa.R.A.P. 1701(a). The order of February 19, 1988 is of no effect. Since the order from which the appeal at 472 Pittsburgh 1988 is taken is of no effect, the appeal is quashed.

      . Father does not allege that the form of service was improper or defective but that he is not amenible to suit because the Pennsylvania court had lost jurisdiction over the case.

      . We express no opinion as to the merits of the complaint and leave for the trial court to determine whether there is an adequate basis to order support for Tanya’s educational expenses.


author: JOHNSON, Judge: BROSKY, Judge,

text:
    553 A.2d 74
    COMMONWEALTH of Pennsylvania v. Robert EMGE, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued June 29, 1988.
    Filed Dec. 8, 1988.
    Reargument Denied Feb. 17, 1989.

      Stanton D. Levenson, Pittsburgh, for appellant.
    Debra B. Barnisin, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before BROSKY, JOHNSON and MELINSON, JJ.
   JOHNSON, Judge:

On this appeal, Robert Emge, Sr., stands convicted of sexual misconduct with his six-year-old son.

He was convicted by a jury of Involuntary Deviate Sexual Intercourse, Indecent Assault and Corruption of Minors.

Appellant raises the following issues for our consideration: (1) whether the trial court erred in permitting the Commonwealth’s psychologist to express opinions bearing directly upon the veracity of the alleged child victim; (2) whether the trial court erred in permitting testimony by the Commonwealth’s psychologist where it did not relate to any specific issue at trial; (3) whether the trial court erred in refusing to allow appellant to call his divorce attorney as a witness; and (4) whether the trial court erred in refusing appellant’s motion for a mistrial following testimony that appellant’s wife “feared for her life”.

The last two issues raised by appellant were properly discussed and disposed of by the trial court. Opinion, December 2, 1987. Thus, it is only appellant’s first two assignments of error which warrant discussion.

The main issue in the case was the credibility of the father versus the credibility of the son. Because we conclude that the testimony of the clinical psychologist was an intrusion upon the function of the jury, we reverse the conviction and grant a new trial.

The admission of expert testimony lies within the sound discretion of the trial court. It normally would involve explanations and inferences not within the ordinary knowledge, intelligence and experience of the jury. A trial judge’s decision to allow expert testimony may not be reversed absent a clear abuse of discretion. Commonwealth v. McNeely, 368 Pa.Super. 517, 520, 534 A.2d 778, 779 (1987).

Defense counsel had appeared before the trial court, prior to the selection of the jury, to present a motion in limine with respect to the possible testimony of Anthony P. Mannarino, a clinical child psychologist employed at Western Psychiatric Institute and Clinic. R.R. 7a, 25a-28a. The matter was reviewed the afternoon of June 10, 1986, R.R. 193a-202a, and prior to resumption of trial the morning of June 11,1986, R.R. 210a-214a. The Commonwealth offered that Dr. Mannarino would testify on the following subjects:

THE COURT: We were to discuss the matter, contemplation, of the Commonwealth in calling some expert witness.
MR. KRASTEK [Asst. D.A.]: Yes, Your Honor. The expert in question would be Dr. Anthony Mannarino, Western Psychiatric Institute and Clinic and the University of Pittsburgh.
As a clinical psychologist, he examined this boy at the request of Judge Kaplan. In fact, we offer that the reason we would call him to testify is to note, number one, behavioral observations of the boy, you know, that he was able to respond to questions, that he was cooperative, that he had enough of an attention span to be able to go through that interview process, to describe his manner of when he was comfortable, when he was uncomfortable in the interview process itself.
He would testify in terms as an expert with regard to this victim’s cognitive ability, his ability to articulate things, understand things and express, articulate things.
He would also testify, again, generally speaking, with regard to the dynamics of child sexual abuse in terms of consistent patterns of behavior with regard to how children react afterwards in terms of being able to remember dates, being able to express what happened to them, the emotion they have as a result, their behavior afterwards in terms of being withdrawn or how they react in school, how they react at home, how they react when the perpetrator is around, where their discipline is reduced as a result, those kind of things, generally speaking; and, then, to compare what we have on the record already in terms of what happened to Bobby afterwards: His change in behavior and how that either is consistent or not consistent with, generally speaking, a victim of child sexual abuse.
Also, he will testify in terms of the dynamics about how a child of such tender years would be able to know something so explicitly sexual, in terms of how he would be able to describe something like that; and whether he might have to observe something like that or have it happen to him. In terms of, again, being able to articulate a very explicit sexual act that occurred to him and how a child of such young years would know that. I am also thinking that Dr. Mannarino might be offered with respect to the statements that he gave to — statements Bobby Emge gave to Dr. Mannarino.
Now, on my first walk in here today, I had no intention of doing that. To me, that is rank hearsay and with no exceptions; however, now, again some of the other matters having been brought up about other matters that Bobby mentioned and that came through the mother over my objection on cross-examination, I would now offer, by way of prior cognizance statements, those same things that Bobby Emge told the clinical psychologist about other matters and the matters that his father did to him. That would be the offer of proof, Your Honor.

R.R. 193a-195a.

Following the offer of proof, trial defense counsel correctly pointed out that the trial court had already ruled upon the child’s ability to respond to questions, the child’s cognitive ability, his ability to understand things and to articulate things. Following a lengthy examination, the trial judge had found the witness competent to testify. R.R. 37a-53a. Thus, any testimony offered by Dr. Mannarino intended to bolster the child’s ability to respond to questions and his ability to understand or articulate matters would relate to an issue already decided by the court, outside the presence of the jury. R.R. 53a. Since the child’s competency had already been determined by the court, any testimony in this area would be immaterial.

In the same vein, the dynamics of child sexual abuse in terms of consistent patterns of behavior by children generally was never an issue in this case. Whether the changes in the child’s behavior in this case were “consistent with, generally speaking, a victim of child sexual abuse” would have little probative value, on the issue of whether Robert Emge, Sr. did, in fact, commit the specific offenses for which he was charged. The probative value of such testimony is outweighed by the prejudicial impact of admitting such testimony.

Even if it were assumed that the testimony of Dr. Mannarino could properly withstand a challenge, based upon the offer of proof, an examination of the expert’s actual testimony establishes that a new trial must be granted.

The trial court permitted Dr. Mannarino to testify, over objection, that the alleged victim’s ability to differentiate reality from fantasy was excellent for his age. R.R. 220a. This is nothing more than an expert’s opinion as to competency, a strictly judicial function in the first instance. After testifying regarding the dynamics of child sexual abuse and consistencies in behavioral pattern and behavioral changes in children involved in sexual abuse, Dr. Mannarino was permitted to testify that the emotional difficulties which the alleged victim experienced “are consistent with kids who have been sexually abused.” R.R. 221a. He further testified to “a fear of retaliation from the alleged perpetrator” which he observed in the child in this case, finding that such fear was “consistent with children who have been sexually abused.” Id.

The fact that Dr. Mannarino spent only seventy-five minutes interviewing the child almost eight months after the alleged incident occurred, R.R. 223a, is not controlling. If we ask what proposition Dr. Mannarino’s testimony was offered to prove, the answer can only be that the characteristics exhibited by the child in this case were “consistent” with characteristics displayed by children understood to be child abuse victims previously examined or studied by the expert. This proposition was not, and should not be, an issue in the case.

Although we cannot question Dr. Mannarino’s qualifications as an expert, since this was by stipulation, R.R. 215a, our review of the expert’s testimony leads us to conclude that the facts upon which his conclusion was based, were at best sketchy. As Justice Zappala observed in Commonwealth v. Rounds, 518 Pa. 204, 207, 542 A.2d 997, 999 (1988), at the heart of any analysis is the veracity of the facts upon which the conclusion is based. Without the facts, a jury cannot make any determination as to validity of the expert’s opinion. In this case, we do not find the development of sufficient facts, either on direct or cross-examination, to permit the jury to utilize Dr. Mannarino’s conclusions in making their ultimate determination.

Returning to the testimony itself, we must conclude that testimony which matches up the behavior of known victims of child sexual abuse with that of an alleged victim can serve no purpose other than to bolster the credibility of the alleged victim, and this purpose is patently prohibited. Commonwealth v. Rounds, 518 Pa. at 207 n. 4, 542 A.2d at 999 n. 4; Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986). We find no distinction between expert testimony as to what a sex abuse victim might say and testimony from an expert as to how an abuse victim might behave. Conduct is a form of communication, indeed a form of speech, and a defendant would find little solace in the knowledge that the conviction resulted from the jury’s belief that the accuser acted in a way that child sexual abuse victims are believed to act, as a class.

While both Davis, supra and Seese, supra, dealt with express testimony regarding the alleged victim’s ability to verbally communicate the truth, we conclude that behavioral testimony equally invades the exclusive province of the fact finder. Here, the jury had the benefit of the child accuser’s testimony, as well as that of other witnesses for the prosecution. Our faith lies in the jurors’ ability to rely on the ordinary experience of life, their common knowledge of the natural tendencies of human nature — including those of a child — and their observations of the character and demeanor of the opposing witnesses.

We are not convinced that a child clinical psychologist is in a better position to make a judgment on the reliability of a child’s testimony than a jury of twelve. Nor is there any evidence on this record that the jury could not have reached a proper verdict but for the testimony of an expert on the general dynamics of child sexual abuse.

Here, the jury received testimony which, in effect, told them that the behavior of the alleged victim was precisely like the behavior of a victim of child sexual abuse. The jury was also informed, by the expert, that the child accuser possessed an excellent ability, for his age, to differentiate reality from fantasy. The only possible outcome of such expert testimony, if believed, is to conclude that the child witness is very reliable and should be believed. This is wrong.

Recently, in an analogous situation, our supreme court reversed an order of this court approving the introduction of expert testimony regarding the victim’s affliction with rape trauma syndrome. Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988). Speaking for a divided court, Mr. Justice Flaherty held that the testimony of an admitted expert in the field was an impermissible encroachment on the jury’s function of determining credibility. The court found that the only purpose of the expert testimony, which reviewed the unusual behavior of the victim post-attack, was to enhance the credibility of the victim. There, as here, the expert testimony involved the conduct, or behavior, of an alleged victim in comparison to the conduct of members of a known class of victims. There, as here, the testimony would invest the opinions of experts with an unwarranted appearance of authority on the subject of credibility, which is within the facility of the ordinary juror to assess. Id., 519 Pa. at 297, 547 A.2d at 358-359.

We retain an abounding faith in the ability of jurors to deal with these admittedly difficult and serious cases. We also steadfastly believe in the continued confidence and high regard in which we hold our jury system. We need not decide, in this case, that all expert psychological testimony comparing the general behavioral patterns of sexually abused children to a specifically, allegedly abused child is. inadmissable. On the facts here presented, however, we believe that the expert testimony proffered was clearly damaging to the defendant’s right to a fair trial. We, therefore, reverse the judgment of sentence and award a new trial.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

I respectfully dissent. Appellant contends, and the majority agrees, that the testimony of the Commonwealth’s expert went too far in that it expressed an opinion bearing directly upon the alleged victim’s veracity.

It is true that previous case law has held that testimony bolstering or commenting upon the child victim’s credibility is inadmissible. Commonwealth v. Rounds, 518 Pa. 204, 542 A.2d 997 (1988), Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. Pearsall, 368 Pa. Super. 327, 534 A.2d 106 (1987). However, the court has permitted expert testimony regarding the general behavioral and psychological characteristics of child sexual abuse victims. Commonwealth v. Pearsall, supra.

In the Pearsall case, our Court stated:

... the record sustains the trial court’s ruling that the Commonwealth’s expert was qualified to express opinions regarding the child victim’s mental and verbal capacity as determined by standard and accepted tests and the effect of such capacity on a child’s ability to generate fantasies.

Id., 368 Pa.Superior Ct. at 332-333, 534 A.2d at 109.

Likewise, instantly, in language almost identical to that permitted in Pearsall, the expert testified that “Bobby’s ability to differentiate reality from fantasy is excellent for his age based on the testing and on the interview.” (Notes of Testimony, p. 209). Appellant equates this to a direct commentary on the child’s credibility. However, the expert merely commented upon the child’s general cognitive abilities. No opinion was expressed regarding the child’s veracity, nor was the issue removed from the jury. It must be remembered that even a child who is not fantasizing may not be telling the truth. Thus, credibility and veracity determinations remained with the jury.

The expert’s testimony here falls far short of the forbidden testimony in Commonwealth v. Seese, supra. In Seese, the expert testified as follows:

It is very unusual that a child would lie about sexual abuse____ [Pjrepubertal children usually do not lie about matters of sexual abuse no matter how chaotic or uncomfortable their home situation is, one, because they don’t know how to lie about it. They don’t know what to say. It's not part of the life experience, so everything they say is something they have seen or experienced. It would be very unusual for them to lie.

Supra, 512 Pa. at 441-42, 517 A.2d at 921.

Nor does it approximate the testimony held to be inadmissible in Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988), where the expert testified that “children who have not been involved in sexual experiences typically do not fantasize about sexual experiences.” On cross examination, .he said, “My experience with children who have had some type of sexual experiences when they report about it, typically it is based upon some event that actually occurred and not some fantasized or fabricated experience.” 518 Pa. at 80, 541 A.2d at 316.

Appellant claims that the expert’s comments regarding the child’s ability to distinguish between fantasy and reality, along with his testimony “that [the child] was the victim of sexual abuse ...” equalled the testimony in the Seese case; however, it must be noted that the expert here took every precaution to refer only to the “alleged child abuse” (Notes of testimony, 203-214). Nowhere was it affirmatively stated that the child was definitely a victim of child abuse.

The majority cites the recent case of Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988), in support of its position. However, Gallagher involved expert testimony on the Rape Trauma Syndrome, from which the victim was diagnosed as suffering, and its effect upon the identification process. There, the victim was unable to identify the appellant within weeks of the crime but did identify him four years later. The Pennsylvania Supreme Court disallowed such testimony in that case, as encroaching upon the province of the jury. The Gallagher testimony is much more similar to that of Davis or Seese than it is to Pearsall or the case sub judice. The Gallagher testimony was a corroboration of the victim’s immediate failure to identify the appellant and her recall four years later, rather than a commentary on her cognitive abilities, as was the case instantly.

I am in full agreement with the majority wherein they state:

We retain an abounding faith in the ability of jurors to deal with these admittedly difficult and serious cases. We also steadfastly believe in the continued confidence and high regard in which we hold our jury system.

Majority Op. at 146. I would, however, carry this “abounding faith” one step further, as I believe that jurors have the ability to decide whether a child is actually telling the truth, once they are told that the child knows the difference between truth and falsity.

Believing, as I do, that the expert testimony did not strain the bounds of propriety, I do not feel that the expert’s testimony prejudiced appellant’s right to a fair trial. Finding no clear abuse of discretion on the part of the trial court, I would affirm the judgment of sentence.

       The expert testified that the child victim "is a very concrete thinking girl, and her ability to fantasize at an abstract level is quite limited.” (N.T. 3/6/86 at 19). On cross-examination, the expert explained, "her intellectual level is so limited, she would have a very difficult time describing the events that she described without having had the experience.” (N.T. 3/6/86 at 35).


author: BROSKY, Judge:

text:
    553 A.2d 79
    COMMONWEALTH of Pennsylvania v. Erinaldo PEREZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 5, 1988.
    Filed Dec. 27, 1988.
    Reargument Denied Feb. 14, 1989.

      Michael S. Gingerich, Lewistown, for appellant.
    Andrew B. Kramer, Assistant District Attorney, Harrisburg, for Com., appellee.
    Before BROSKY, JOHNSON and WATKINS, JJ.
   BROSKY, Judge:

This is a consolidated appeal from an order denying relief from a PCHA petition filed regarding charges at three different docket numbers. Appellant pled guilty to various drug charges among them were two conspiracy charges, one to distribute marijuana and another to distribute cocaine. Appellant alleges, among other things, that it was error to sentence him on both conspiracy charges as under 18 Pa.C.S. § 903(c) he was guilty of only one conspiracy. We agree and reverse the order appealed from to the extent it affirms sentences on both conspiracy charges.

Section 903(c) of the Crimes Code states:

Conspiracy with multiple criminal objectives. — If person conspires to commit a number of crimes, he is guilty of only one conspiracy as long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship. 18 Pa.C.S. § 903.

In Commonwealth v. Lore, 338 Pa.Super. 42, 487 A.2d 841 (1984), a panel of this Court expounded upon this section of the Code saying:

Section 903(c) articulates a concept which is not new in American jurisprudence, “The conspiracy is the crime, and that is one, however diverse its objects.” Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 102, 87 L.Ed. 23 (1942), quoting Frohwerk v. United States, 249 U.S. 204, 210, 39 S.Ct. 249, 252, 63 L.Ed. 561 (1919). See also W. LaFave and A. Scott, CRIMINAL LAW § 62 (1972) (“An agreement to commit several crimes is but one conspiracy.”) In Braverman, supra, the Supreme Court went on to explain that, “The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute____” Id. 317 U.S. at 54, 63 S.Ct. at 102.
More recently, the parameters of this principle have been further defined:
A single, continuing conspiracy is demonstrated where the evidence proves that the essential feature of the existing conspiracy was a common plan or scheme to achieve a common, single, comprehensive goal____ A single, continuing conspiracy may contemplate a series of offenses, or be comprised of a series of offenses, or be comprised of a series of steps in the formation of a larger, general conspiracy____ Therefore, where the evidence at trial is sufficient for the jury to infer that the essential features of the existing conspiracy were a common plan or scheme to achieve a common, single, comprehensive goal or end, then the conclusion that the conspiracy was a single, continuing conspiracy is justified.
United States v. Continental Group, Inc., 456 F.Supp. 704, 716 (E.D.Pa.1978), aff'd, 603 F.2d 444 (3d Cir.1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668 (1980).

The opinion of the trial court with regard to this issue focused mostly on the double jeopardy challenge which appellant raised along with the section 903(c) challenge. The trial court states:

In the instant case, in order to establish a conspiracy, the Commonwealth must prove that the Defendant made an agreement with another individual to achieve an unlawful objective. Defendant’s unlawful objective in one conspiracy was to deliver marijuana and/or possess it with intent to deliver and in the second conspiracy Defendant’s objective was to deliver cocaine and/or possess it with intent to deliver. Each conspiracy required proof of a fact that the other did not. More specifically one conspiracy required proof of delivery of and/or possession with intent to deliver cocaine and the other marijuana.
If the case would have gone to trial, the Commonwealth would have produced evidence that each conspiracy involved different individuals, different recipients of the drugs in different geographic locations. According to Blockburger, proof of the foregoing assertions would result in two separate and distinct conspiracies. (Trial court opinion pp. 20-21).

The reference to the Blockburger test might be useful to an inquiry of whether there has been a prima facie commission of separate offenses, yet its utility in determining whether there was more than one conspiracy must be questioned. The trial court’s statement itself is rather conclusory as to whether there were two separate agreements to engage in the selling of the contraband. The court, in essence, simply concluded:

... that if the case had proceeded to trial, the Commonwealth would have established two separate agreements with different individuals and two separate objects, one to deliver cocaine and the second to deliver marijuana.

However, a review of the record casts doubt as to whether this would in fact have been proven, especially when the criminal complaint itself appears to insufficiently allege separate conspiracies:

The acts committed by the accused were:

A. Criminal conspiracy, 18 Pa.C.S.A. Section 903 (2 Counts).
1. Between November 1, 1982 and February 1, 1984, Erinaldo Perez, Justo Perez-Ramos, Roberto E. Simon, Emilio Diaz, George E. Walters, Robert G. Walters ... and/or others conspired to violate the drug laws of the Commonwealth of Pennsylvania by agreeing to obtain, possess, possess with intent to deliver and/or deliver a controlled substance, to wit, marijuana, a Schedule T Controlled Substance and overt acts in furtherance of said conspiracy, some of which are more fully set forth in the Affidavit of Probable Cause attached to this Complaint, were committed in Huntingdon County.

The second paragraph mirrors the above with the exception of the specification of cocaine as the controlled substance and the specification of a few different participants than the first, all of which, upon review of the Affidavit of probable cause, appear to have been connected with the Walters and not with the appellant. Nothing in the complaint tends to establish separate conspiracies to distribute cocaine and marijuana or tends to disprove that a single conspiratorial relationship existed from which both marijuana and cocaine were distributed to the Walters in Pennsylvania. The Affidavit of probable cause referred to in the complaint, despite having 151 paragraphs and being over 30 pages in length, is further barren of these allegations and instead tends to support appellant’s position. The lone paragraph of that document relevant to appellant’s distribution of drugs reads:

George and Robert WALTERS regularly obtained quantities of cocaine, marihuana, LSD, and other controlled substances from several different suppliers for distribution to numerous customers. The WALTERS’ operation was that of a retailer for drugs in the Huntingdon County/central Pennsylvania area, as well as serving as middle men for the distribution of controlled substances to other retailers. Erinaldo PEREZ, Justo PEREZ-Ramos, Roberto SIMON, and Emilio DIAZ, all of whom reside in the Miami, Florida area, supplied the WALTERS with marihuana and cocaine from Miami on a regular basis, and James C. POE supplied the WALTERS with marihuana from Ohio____

The rest of the affidavit details the Walters’ dealings with various other individuals. Appellant is depicted as doing no more than supplying, along with the other three Miami residents, cocaine and marijuana to the Walters, who in turn dealt the drugs to others.- Quite incongruously, the Walters’ involvement with others, particularly the Walters’ sale of drugs to others, is used by the Commonwealth, and alluded to by the trial court, to attempt to show separate conspiracies by appellant. Undoubtedly, many separate offenses were committed during the course of the conspiratorial relationship. However, under our law this does not automatically lead to a determiniation that there was more than one conspiracy or conspiratorial relationship. One receives the impression that had an individual called the appellant and ordered five different types of drugs from him which the appellant then agreed to sell, the Commonwealth would argue that there were five conspiracies committed. We do not read section 903(c) in that manner. Our own review of the record leads us to conclude that nothing presented by the Commonwealth tends to establish two separate conspiracies but rather instead tends to establish a single conspiratorial relationship from which two contraband substances were distributed to the Walters in Pennsylvania. Under Lore and Section 903(c) we would conclude that only one sentence is authorized under the facts alleged.

We note that although appellant was sentenced to a maximum period of incarceration consistent with the maximum allowable, the minimum period was less than that statutorily authorized. Because our review of the record makes it difficult to determine whether the sentencing court would impose the same sentence for a single conspiracy as that imposed for one of the two conspiracies, we will vacate the sentence imposed on both and remand for imposition of sentence on a single conspiracy count. See, Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983).

The order appealed from is reversed to the extent it denies the relief of vacating the conspiracy sentences. The order is affirmed in all other respects. Remanded for resentencing consistent with this opinion.

JUDGMENT

ON CONSIDERATION WHEREOF, it is hereby ordered and adjudged by this Court that the PCHA Orders of the Court of Common Pleas of Huntingdon County are affirmed in part, reversed in part and cases are remanded for resentencing.

      . We do not reach the other issues raised by appellant, which deal with withdrawal of the guilty plea, because appellant has requested relief in the alternative, either withdrawal of the plea or vacation of one of the conspiracy sentences. However, our decision today should not be construed to prejudice appellant’s right to appeal this issue after a valid sentence is imposed by the trial court.


text:
    553 A.2d 82
    PRIDE CONTRACTING, INC., Appellant, v. BIEHN CONSTRUCTION, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1988.
    Filed Jan. 6, 1989.
    Reargument Denied Feb. 14, 1989.

      Ronald F. Brien, Spring City, for appellant.
    Gary A. Rochestie, Philadelphia, for appellee.
    Before ROWLEY, WIEAND and BECK, JJ.
   WIEAND, Judge:

Pride Contracting, Inc. (Pride) has appealed from an order which dismissed with prejudice its third amended complaint against Biehn Construction, Inc. (Biehn) for failure to comply with a court order directing discovery. Pride contends that the trial court abused its discretion by imposing an unduly harsh sanction without a hearing. We disagree and affirm the order of the trial court.

Pride’s complaint against Biehn contained averments that Biehn had failed to pay for work done by Pride and had dealt with Pride in bad faith. Biehn filed preliminary objections in the nature of a demurrer to the complaint, and these were sustained in part. Preliminary objections were also sustained to amended and second amended complaints. Finally, a third amended complaint was upheld against another set of preliminary objections, and Pride’s action was allowed to proceed. Biehn thereafter served on Pride a set of interrogatories and requested the production of documents. Pride did not respond. Correspondence by Biehn’s counsel regarding its requests was ignored. Finally, Biehn moved for sanctions, and the trial court ordered Pride to comply with Biehn’s discovery requests within thirty (30) days. In response, Pride delivered to Biehn a mass of documents which were unlabeled and represented an incomplete response. The answers to interrogatories were illegibly written, inadequate, and evasive. Biehn filed a second request for sanctions, and following a conference involving the court and counsel, an order was entered directing Pride to comply with all discovery requests within forty-five (45) days. In response, Pride delivered another stack of documents which, Biehn’s attorney contended, were unlabeled and irrelevant. No further answers were filed to the defendant-appellee’s interrogatories. Thereafter, a third motion for sanctions was filed and produced an order which dismissed the complaint with prejudice and directed the plaintiff-appellant to pay counsel fees incurred by Biehn in connection with the several motions for sanctions. On appeal, a panel of the Superior Court remanded to the trial court for a statement of reasons for its order. Contrary to the Court’s operating procedures, the panel did not retain jurisdiction and declined to consider the appeal further. Therefore, a second appeal, following the filing of a memorandum opinion by the trial court, was filed and is now before a different panel for decision.

The imposition of sanctions for failing to comply with a court’s discovery order is authorized by Pa.R.C.P. 4019(a). The sanctions permitted are enumerated in Rule 4019(c) as follows:

(c) The court, when acting under subdivision (a) of this rule, may make
(1) an order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or any other designated fact shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition;
(3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience;
(4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010;
(5) such order with regard to the failure to make discovery as is just.

The specific sanction to be imposed under this rule is a matter within the discretion of the trial court. Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 385, 492 A.2d 1382, 1387 (1985). Although dismissal of the complaint with prejudice is not a sanction specifically provided for by the rule, the “catch-all” provision of Pa.R.C.P. 4019(c)(5) has been interpreted to include dismissal of the complaint with prejudice. Feingold v. Philadelphia National Bank, 313 Pa.Super. 579, 583, 460 A.2d 339, 341 (1983). In reviewing an order dismissing a complaint, an appellate court must be satisfied that the trial court selected a punishment appropriate for the violation. Id., 313 Pa.Superior Ct. at 583, 460 A.2d at 341-342; Brunetti v. Southeastern Pennsylvania Transportation Authority, 329 Pa.Super. 477, 481-482, 478 A.2d 889, 891 (1984). “The court is required to strike a balance between the procedural need to move the case to a prompt disposition and the substantive rights of the parties.” Gonzales v. Procaccio Bros. Trucking Co., 268 Pa.Super. 245, 252, 407 A.2d 1338, 1341 (1979). The court must examine the party’s failure to comply in light of the prejudice caused to the opposing party. Brunetti v. Southeastern Pennsylvania Transportation Authority, supra 329 Pa.Super. at 482, 478 A.2d at 891. Whether the failure to provide information represents a willful disregard of a court order is also a factor to be considered in fashioning the severity of the sanction. Roman v. Pearlstein, 329 Pa.Super. 392, 399, 478 A.2d 845, 848 (1984). See also: Calderaio v. Ross, 395 Pa. 196, 150 A.2d 110 (1959).

In the instant case, the trial court recited the factors it considered in dismissing Pride’s action as follows:

(1) Appellant’s repeated failure to comply with Appellee’s discovery requests, (2) good faith efforts, if any, on the part of Appellant to comply with Appellee’s requests, (3) Appellant’s disregard of our Orders concerning discovery, (4) the extent to which Appellee was prejudiced by Appellant’s failure to comply with discovery requests and Orders, and (5) the various sanctions set forth by Rule 4019. The trial court specifically found that appellant had will-

fully disregarded the Rules of Civil Procedure pertaining to discovery and also the two orders which the court itself had entered directing discovery. Indeed, appellant had failed even to attempt to supplement its answers to the interrogatories which were found insufficient by the court in imposing its second order. The court, therefore, found that the plaintiff-appellant had made no attempt to demonstrate good faith. The court also determined that the plaintiff-appellant’s failure to supply information was related directly to its averments of non-payment and bad faith on the part of the defendant-appellee and would seriously impair the defendant-appellee’s ability to prepare a defense. The court concluded, therefore, that the defendant had been prejudiced by the plaintiff’s failure to provide necessary discovery. The court stated:

Twice before imposing this drastic sanction we offered Appellant the opportunity to comply with Appellee’s discovery requests; twice Appellant shunned such an opportunity. In light of this conduct and such factors as repeated failure to comply with discovery requests, absence of good faith efforts to comply, disregard of our Orders, and the extent to which Appellee was prejudiced by Appellant’s failure to comply with discovery requests, we concluded that dismissal was appropriate and less severe sanctions were inappropriate in this case.

Although the harsh sanction of dismissal should be imposed only under the most extreme circumstances, Calderaio v. Ross, supra, a review of the record in this case reveals that the remedy chosen by the trial court was an appropriate exercise of the court’s discretion. The appellant’s third amended complaint raised issues of liability for breach of contract and bad faith in appellee’s business dealings. The specific allegations thereof related to Biehn’s alleged failure to comply with the terms of “written contracts,” failure to pay for work completed, failure to properly supervise employees, and failure to provide adequate working conditions. Pride also alleged that Biehn had forced Pride to hire additional unnecessary union laborers which ultimately forced Pride out of business. However, the interrogatories requesting specific information regarding these allegations were answered in vague and general terms. They provided no explanation whatsoever regarding the facts relied upon to support Pride’s alleged causes of action. The defendant-appellee’s interrogatories had related directly to the allegations contained in the third amended complaint, and the answers thereto were essential to the preparation of a defense.

It appears also that other sanctions available to the court in this case would have achieved the same result. Thus, if the court had stricken those counts as to which the plaintiff-appellant had failed to provide discovery or had refused to receive evidence pertaining thereto, the effect would have been to deny plaintiff the right to pursue the general causes alleged in its complaint.

Appellant has not contended that it provided the discovery which the defendant-appellee requested; neither has it asserted that it was unable to provide the requested information. After the plaintiff-appellant failed to comply with the trial court’s first order, the trial court gave appellant a second opportunity to comply. Again, appellant failed to provide the requested discovery. No excuse for this failure has been offered. In view of these circumstances and the difficulty plaintiff demonstrated in alleging with specificity a cause of action, the trial court could conclude, as it apparently did, that the existence of a cause of action was doubtful and that, in any event, plaintiff should not be permitted to proceed further.

Appellant’s contention that the entry of the court’s sanction order without a prior hearing violated due process is likewise meritless. In Calderaio v. Ross, supra, the Supreme Court determined that neither notice nor hearing was a necessary prerequisite to the imposition of sanctions pursuant to Pa.R.C.P. 4019. See also: Griffin v. Tedesco, 355 Pa.Super. 475, 513 A.2d 1020 (1986). In the instant case, appellant failed to comply with a court order for discovery, a conference was held at which all parties were represented, and a second order for discovery resulting from that conference was ignored. Appellant cannot now be heard to complain that it was not given adequate opportunity to avoid the ultimate dismissal of its complaint for refusal to comply with the Rules of Civil Procedure and the orders of the court.

Order affirmed.

      . For example, one interrogatory asked: “State the method by which Pride Contracting, Inc. calculated lost future profits of over one million dollars.” Appellant replied: "An estimate which will be substantiated at trial.” Many other interrogatories were answered with the statement “Information already in defendant's possession,” or “in accordance with contracts.”

      . Although appellant does not specifically object to the court’s order that Pride pay the costs incurred by Biehn in litigating the issue of sanctions, we note that such order was also within the proper discretion of the trial court. See: Roman v. Pearlstein, supra.


author:
OLSZEWSKI, Judge: CIRILLO, President Judge,
      POPOVICH, Judge,

text:
    553 A.2d 85
    Norman STAATS, Administrator of the Estate of Earl Staats, a Minor, and Norman and Judith Staats, Appellants, v. William B. NOLL and Evangeline Noll, husband and wife, and Anthony P. Kilpatrick, Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1987.
    Filed Jan. 19, 1989.

      Arthur L. Pressman, Philadelphia, for appellants.
    Nicholas Noel, III, Bethlehem, for appellees.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN , OLSZEWSKI, MONTEMURO, POPOVICH and JOHNSON, JJ.

       McEwen, J., did not participate in the consideration of or decision upon this appeal.

   OLSZEWSKI, Judge:

This is an appeal from an order denying a petition to award delay damages pursuant to Pa.R.C.P. 238. The issue presented on appeal is whether the trial court erred in determining that appellants were not entitled to delay damages when appellants claim they were without fault, and when appellees failed to make any written settlement offer during the interim between the incident and trial. We remand to the trial court for assessment of delay damages in accordance with the new Rule 238, effective November 7, 1988.

Appellants’ decedent, Earl Staats, died on September 3, 1983. On May 16, 1984, appellants filed a complaint asserting wrongful death and survival actions against appellees for serving alcoholic beverages to Earl to the point of intoxication, which proximately caused his death. Appellees joined additional defendants out-of-time on November 27,1985. The additional defendants were dismissed prior to trial. At a pre-trial conference on April 16, 1986, it was agreed that trial would not be listed for June in order for appellants to continue to obtain expert witnesses. Trial commenced on October 21, 1986, and on October 28, 1986, the jury returned a verdict in favor of appellants in the amount of $83,019.70.

Appellants subsequently filed a petition to award delay damages. After conducting a conference on November 14, 1986, in which it was agreed that no additional fact-finding was necessary, the trial court denied appellant’s petition on December 15, 1986.

Appellants maintain that they are entitled to delay damages under Rule 238 because appellants were without fault in causing the delay and deserve to be made whole. Additionally, appellants claim that appellees’ failure to make a written settlement offer was sufficient evidence of fault to support assessing delay damages against appellees. The trial court, in compliance with Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), adequately considered the criteria enunciated in Craig regarding fault for the delay.

On November 7, 1988, however, while this matter was still pending before this Court, our Supreme Court promulgated a new Rule 238, effective immediately. In our recent en banc panel decision of Ceresini v. Valley View Trailer Park, Ephrata, Inc., 380 Pa.Super. 416, 552 A.2d 258 (1988), this Court determined:

The new Rule 238 applies to “actions pending on or after the effective date of this rule in which damages for delay have not been determined____”
In our opinion, the Rule applies to all actions pending at the trial level, or on appeal, in which the issue of delay damages has been preserved and not finally determined____
New Rule 238 is quite complex and differs from the prior rule in a number of respects including the monetary formula for the calculation of damages. We believe the court must consider the entire rule in order to correctly ascertain delay damages and the court below must consider it in assessing damages. Since the delay damages assessed in this case have not been finally determined, we remand to the trial court for assessment of delay damages in accordance with Pa.R.C.P. 238, effective November 7, 1988.

380 Pa.Superior Ct. at 417-418, 552 A.2d at 259.

In the instant case, delay damages have not been finally determined for the purposes of the new Rule 238 because a determination of the appropriateness of the delay damages is pending before this Court. We, therefore, find it necessary to remand for a hearing to determine delay damages in accordance with the new Pa.R.C.P. 238, effective immediately.

Order vacated and case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

CIRILLO, President Judge, filed a dissenting statement.

POPOVICH, J., filed a dissenting opinion.

BEFORE: CIRILLO, P.J., and CAVANAUGH, BROSKY, ROWLEY, McEWEN, OLSZEWSKI, MONTEMURO, POPOVICH and JOHNSON, JJ.

CIRILLO, President Judge,

I respectfully dissent for the same reasons expressed in my dissenting opinion in Ceresini v. Valley View Trailer Park, 380 Pa.Super. 416, 552 A.2d 258 (1987) (en banc) (Cirillo, P.J., dissenting).

POPOVICH, Judge,

dissenting:

I dissent consistent with my Dissenting Opinion by Popovich, J. in Ceresini v. Valley View Trailer Park, Ephrata, Inc., 380 Pa.Super. 416, 552 A.2d 258 (1988) (en banc).


author: CIRILLO, President Judge:

text:
    553 A.2d 87
    In the Interest of Matthew SPAUSE. (Two Cases) Appeal of Matthew SPAUSE. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1988.
    Filed Jan. 27, 1989.

      Karl Baker, Assistant Public Defender, Philadelphia, for appellant.
    Alan Sacks, Assistant District Attorney, Philadelphia, for Com.
    Before CIRILLO, President Judge, and BECK and KELLY, JJ.
   CIRILLO, President Judge:

This is an interlocutory appeal taken by Matthew Spause, a juvenile, following the denial of his motion to dismiss the prosecution of two juvenile delinquency petitions, involving rape of his four-year old niece and escape from a shelter in which he had been placed pending the proceedings on the rape petition. Spause’s motion to dismiss was based upon double jeopardy grounds.

On September 26, 1987, the Commonwealth filed a juvenile petition seeking adjudication for rape, involuntary deviate sexual intercourse, indecent assault, indécent exposure, simple assault, endangering the welfare of a child and intimidation of a witness (“rape petition”). Spause was placed in a shelter pending the proceedings in Juvenile Court. He, however, escaped from the shelter and on October 10,1987, the Commonwealth filed a second petition charging Spause with the escape (“escape petition”). On November 4,1987, the two petitions came before the Honorable Edward R. Summers and he found that the Commonwealth’s witnesses with respect to the rape petition were incompetent to testify. Consequently there was no adjudication of the delinquency of Spause.

On November 16, 1988, the petitions again came before Judge Summers at which time the court found Spause to be ‘dependent’ and committed him to George Junior Republic, a residential juvenile institution. On December 7, 1988, the Commonwealth filed a petition to reconsider the dependency declaration wherein it averred that the court committed Spause to George Junior Republic as a dependent child without a dependency petition having been filed and without following the statutory requirements regarding dependency determination. Thereafter Spause filed a reply to this petition.

Apparently, at some point during these proceedings, the court expressed an interest in reopening the competency hearing on the rape petition and asked the parties involved to submit briefs on this issue. The Commonwealth and the public defender both filed memoranda in response to the court’s request. On February 26, 1988, a hearing was held where the Commonwealth asked the court to rule on the competency issue and the petition to reconsider the dependency adjudication. The public defender, on the other hand, asked the court to dismiss prosecution of the petition on double jeopardy grounds. It appears from the hearing transcript that the public defender was contending that a reopening of the competency hearing would violate Spause’s right not to be placed twice in jeopardy. The Commonwealth stated that if the court decided to reopen the competency hearing that it would not argue the adjudication of dependency. During the hearing, Judge Summers stated that he was going to allow the reopening of the competency hearing under the conditions set forth in Commonwealth v. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (1987) app. granted, 518 Pa. 617, 541 A.2d 744 (1988). In so ruling, the court denied the public defender’s motion to dismiss the prosecution on grounds of double jeopardy. The public defender notified the judge of his intention to appeal the double jeopardy issue and the court granted a stay of the delinquency proceedings pending his appeal.

On March 4, 1988, a notice of appeal was filed. Spause submitted a statement of issues complained of on appeal wherein he argues only that his double jeopardy rights have been violated. The two petitions were consolidated for appeal by this court upon Spause’s motion. On August 22, 1988, this court denied Spause’s petition for extension of time in which to file a brief. Spause requested an extension because he had allegedly been unable to obtain a transcript of the notes of testimony taken on November 16, 1987. We found that Spause had never ordered the transcript and determined that he did not have good cause for receiving an extension or a remand for completion of the record. See Pa.R.A.P. 1911.

Spause raises two issues for our consideration on appeal. He argues: (1) that he would be placed in double jeopardy if a new adjudicatory hearing was held on the juvenile petitions when he had been previously adjudicated dependent without objection by the Commonwealth and was committed to George Junior Republic, and (2) that this court acted improperly by denying his petition for extension of time for filing his appellate brief when that petition established his counsel’s diligent yet futile efforts to secure a hearing transcript necessary to the fair resolution of this appeal and by giving him notice of this denial on the day before his brief was due.

Although this appeal, which is from a denial of Spause’s motion to dismiss prosecution on the grounds of double jeopardy which the court decided on February 26, 1988, is an interlocutory appeal, we find that it is permitted under Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986). In Brady the supreme court stated:

We therefore conclude that an appeal from the denial of a motion to dismiss on double jeopardy grounds should not be permitted where the hearing court has considered the motion and made written findings that the motion was frivolous. Absent such a finding, an appeal may be taken from the denial of the motion.

Id., 510 Pa. at 346, 508 A.2d at 291.

It appears from the transcript of the hearing on February 26, 1988 and from Judge Summers’ opinion itself, that the trial court believes that the issue of whether jeopardy attaches to a competency hearing conducted within a juvenile proceeding is not frivolous. Spause, does not, however, argue this issue on appeal to this court. He argues that jeopardy attached after Judge Summers determined, on November 16, 1988, that he was dependent on the basis of the rape and escape petitions. Essentially, in both arguments Spause is claiming that jeopardy has attached and that to proceed any further on the adjudication of the rape and escape petitions would violate the prohibition against double jeopardy. Thus since Judge Summers did not make a finding of frivolousness on the issue of whether jeopardy attached as a result of the dependency adjudication and the February 26, 1988 transcript is unclear as to whether this dependency issue was actually considered, we conclude that the issues are similar in nature and will hear the merits of this appeal.

We make our conclusion noting that Brady did not involve a criminal juvenile proceeding. However, we find that the court’s reasons, in Brady, for permitting an immediate appeal when a motion to dismiss on double jeopardy grounds has been denied, are equally applicable in the context of juvenile proceedings. Our supreme court stated:

The obvious effect of a rule which does not permit an interlocutory appeal of certain double jeopardy claims is that some defendants may be tried notwithstanding a contention that the retrial itself violates double jeopardy principles. However where the double jeopardy claim advanced is obviously frivolous, an interlocutory appeal will serve only to delay prosecution. The defendant will have the opportunity to initially assert his claim before a tribunal and retrial is not permitted unless the claim is shown to the satisfaction of that court to be frivolous. Further, a defendant may challenge the finding of frivolousness in the context of a request for a stay from an appellate court. Moreover, there will be an appellate review of the merits of the claim on direct appeal following retrial. Such an approach will provide full protection for a legitimate double jeopardy claim and at the same time afford some degree of assurance that this right will not be abused. Admittedly, it is conceivable that a legitimate claim may on rare occasions be overlooked by both a hearing court and the appellate court in which a stay is sought. Such a risk is at best minimal and in any event counterbalanced by the numerous meritless claims that will be identified and excluded. The priority for an expeditious disposition of criminal cases justifies this minimal risk.

Id., 510 Pa. at 345, 508 A.2d at 291.

With respect to Spause’s first issue he claims that his adjudication as a dependent on the basis of both the rape and escape petitions was proper, and that the Commonwealth did not object to dependency adjudication and commitment to George Junior Republic. He alleges that he entered a guilty plea “by simply indicating a willingness to enter an admission or by not contesting the dependency determination,” and that when the court accepted his guilty plea, jeopardy attached. Based on these averments he concludes that “allowing a new juvenile prosecution following [his] adjudication and commitment, particularly in the absence of any objection by the Commonwealth, would violate [his] privilege against double jeopardy as guaranteed by the state and federal constitutions.” We disagree.

In juvenile proceedings, jeopardy attaches if the object of the proceeding is to determine whether the juvenile “has committed any acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years.” In the Interest of Stephens, 501 Pa. 411, 461 A.2d 1223, 1226 (1983), cert. denied 466 U.S. 954, 104 S.Ct. 2163, 80 L.Ed.2d 547 (1984). First we note that an adjudication of dependency is not criminal in nature. A child may be adjudicated dependent when clear and convincing evidence enables the court to make a certain determination that the child is without proper parental care and that such care is not immediately available. 42 Pa.C.S. § 6351; see also 25 Standard Pa. Practice § 131.59 (1984). An adjudication of delinquency, however, requires proof beyond a reasonable doubt that the juvenile committed the delinquent acts and that the juvenile is in need of supervision of rehabilitation. In the Interest of Dreslinski, 254 Pa.Super. 539, 386 A.2d 81 (1978).

Second, the purpose of juvenile proceedings is to seek treatment and rehabilitation of the juvenile; it is not to punish. In the Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981). The double jeopardy prohibition prevents an accused from being punished twice for the same offense. Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981); see also 26 Standard Pa. Practice § 132.68 (1987). We do not agree that Spause has been punished for the acts of delinquency charged in the petitions. Thus, we find that jeopardy did not attach when Spause was adjudicated dependent and conclude that his argument is merit-less.

In his second issue, Spause claims that this court improperly denied his petition requesting an extension of time to file his appellate brief or a remand to complete the record. This petition was filed because Spause allegedly tried to obtain the transcript of the November 16, 1987 hearing before his appellate brief was due, but he was unsuccessful.

According to Pa.R.A.P. 2185, an appellant generally has forty days after the record is filed in which to file his appellate brief. The granting of extensions of the time provided for in Pa.R.A.P. 2155 is within the discretion of this court. It is the appellant’s duty to ensure that a transcript is ordered. Pa.R.A.P. 1911. As we have stated above, because Spause never ordered the transcript, he has failed to show good cause why an extension should have been granted. Thus Spause’s allegations of impropriety on the part of this court are clearly devoid of merit.

We affirm the order denying Spause’s motion to dismiss the prosecution on double jeopardy grounds.

      . Pa.R.A.P. 2185 provides in pertinent part:
      (a) General Rule. The appellant shall serve his brief not later than the date fixed pursuant to subdivision (b) of this rule, or within 40 days after the date on which the record is filed, if no other date is so fixed.