author: DEL SOLE, Judge:

text:
    609 A.2d 1360
    RICHARD T. BYRNES CO., INC., Appellee, v. BUSS AUTOMATION, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 29, 1992.
    Filed May 26, 1992.

      Mark L. Tunnell, West Chester, for appellant.
    C. Douglas Parvin, West Chester, for appellee.
    Before CIRILLO, DEL SOLE and KELLY, JJ.
   DEL SOLE, Judge:

Appellant appeals from a money judgment in favor of the Appellee. Upon consideration of Appellee’s Motion for Summary Judgment, the trial court granted the motion and awarded the Appellee a judgment in the amount of $42,-984.53 plus interest of $9,703.74. The Appellant bases its appeal on its belief that the court was not capable of exercising jurisdiction over the Appellant and that the court erred in granting Summary Judgment to the Appellee where issues of material fact remained.

FACTS

The Appellant, Buss Automation, Inc. (hereinafter sometimes referred to as, “New Buss”) is a North Carolina corporation. The following is a description of New Buss’ formation. On August 7, 1986, Buss Automation, Inc. (hereinafter referred to as, “Old Buss”), a North Carolina corporation, Milton Machine Co., Inc., a North Carolina corporation (“Milton”), Betty L. Buss (“Betty Buss”), Betty C. Buss, Executrix of the Estate of Jack M. Buss, Deceased (“Executrix”), and Damsmith Corporation, a Delaware corporation, (“Damsmith”) and a group of Damsmith’s subsidiaries (the “Damsmith Group”) entered into an agreement of sale whereby Betty Buss individually and as Executrix, as sole shareholder in both Old Buss and Milton, agreed to sell Old Buss and Milton and certain of the assets of the two corporations to Damsmith and the Damsmith Group. Damsmith subsequently acquired the remaining assets and liabilities in a settlement which occurred on or about September 9, 1986. Pursuant to that agreement, Old Buss agreed to relinquish use of its name. On or about September 7,1986, Old Buss changed its name to Jabet, Inc. and at some point, Milton changed its name to Luma Corporation, Inc., (“Luma”). On September 24, .1986, New Buss was incorporated in North Carolina under the name of Buss Automation, Inc. New Buss maintained the same address that Old Buss had used and it, like Old Buss, continued to manufacture lumber handling systems. The Board of Directors of Old Buss had consisted solely of Betty Buss. She was also the sole shareholder. The record indicates that Betty Buss did not have any interest in New Buss.

The Appellee, Richard T. Byrnes Co., Inc. (“Byrnes”), is a Pennsylvania corporation. On March 3,1986, in response to Byrnes’ request on behalf of one of its clients, Old Buss’ sales manager wrote to Byrnes for the purposes of providing it with information about Old Buss’ products. In the letter, the sales manager provided Byrnes with a price quote for certain machinery, including a five percent (5%) commission for Byrnes, in the sales price. In addition, Old Buss’ sales manager requested that Byrnes provide him with the name of its customer as soon as possible.

Byrnes responded to the sales manager’s request on March 13, 1986 and stated that its customer was Taney Supply & Lumber Corporation (“Taney”) a company located in Maryland. In addition, Old Buss was given the name, address and phone number of Taney’s consultant (“Taney’s Consultant”).

On April 11, 1986, another individual from Old Buss wrote to Taney’s Consultant. The letter was copied to Byrnes and contained a price quote. In the letter, its author expressly stated that the price quote included Byrnes’ commission.

On July 9,1986, Old Buss forwarded a formal proposal to Taney’s Consultant and suggested that the parties meet to discuss the transaction. The letter contained a postscript which stated that the quoted prices contained in the proposal included Byrnes’ commission.

PROCEDURAL HISTORY

Byrnes filed its complaint against New Buss on May 15, 1989. The complaint alleged that New Buss had sold goods to Taney and that it had failed to forward the agreed upon commission to Byrnes. It set forth claims of breach of contract and unjust enrichment. In its complaint, Byrnes asserted that Old Buss’ letter to Byrnes dated March 3, 1986 constituted a contract. According to the copies of the invoices which were attached as exhibits to Byrnes’ complaint, New Buss began shipping items to Taney in January, 1987 and continued shipping items to Taney until May, 1987. Byrnes averred that, at the time of the filing of its complaint, it was its belief that New Buss had shipped goods totaling $1,000,020.00 to Taney (that figure was later reduced to $859,690.62). In addition, Byrnes asserted that, upon learning that goods had been sold to Taney, it contacted New Buss whereupon it was informed by an employee of New Buss, who had also been an employee of Old Buss, that New Buss and Taney were involved in a dispute but, that as soon as that dispute was settled, Byrnes would receive its fee. Byrnes asserted that it never received its 5% commission, as promised by Old Buss and New Buss, and that it was owed a commission of $50,001.00, plus interest and cost of suit and attorneys’ fees.

New Buss filed Preliminary Objections to Byrnes’ complaint claiming that the court lacked the power to exercise in personam jurisdiction over New Buss. It claimed that Old Buss, if any entity, entered into an agreement with Byrnes and that New Buss was therefore not liable under the agreement. New Buss claimed that, since it is a foreign corporation, the only way in which the Pennsylvania courts could obtain in personam jurisdiction over it was through Pennsylvania’s Long Arm Statute, 42 Pa.C.S.A. § 5322(a). It argued that the Long Arm Statute was inapplicable because it did not conduct the requisite amount of activity within the Commonwealth to bring it within the reach of the statute.

The trial court issued an order denying New Buss’ Preliminary Objections and thereby concluded, that it was able to exercise in personam jurisdiction over New Buss. In ruling on the Preliminary Objection, the court looked at the pleadings and deposition testimony provided by the parties. The depositions provided to the court, were depositions taken of New Buss’ Executive Vice President (the “Vice President”) and New Buss’ Secretary (who was also a Director and General Counsel for New Buss) (the “Secretary”). In his deposition testimony, the Vice President admitted that he had spoken with Byrnes’ Chairman of the Board (“Byrnes’ Chairman”) and that he told Byrnes’ Chairman that Byrnes would not receive its commission until New Buss’ dispute with Taney was settled. He also stated that by making that statement to Byrnes’ Chairman, he meant to convey to Byrnes’ Chairman that New Buss would pay Byrnes as soon as it reached a settlement with Taney. On the other hand, New Buss’ Secretary, during his deposition, denied that New Buss had any contractual relationship with Byrnes. He stated that the agreement of sale that was entered into by the parties outlined the specific liabilities that New Buss agreed to assume from Old Buss and that the agreement allegedly entered into by Old Buss and Byrnes, was not one of those liabilities specifically mentioned in the agreement of sale. The trial court held that “[Ajlthough this averment may be fairly characterized as a denial by New Buss of ever having assumed any of the liability on the agreement between Old Buss and [Byrnes] (and thus there is no basis for the exercise of jurisdiction), the allegation is not sufficiently supported by the evidence to allow me to find that no contract or liability under such a contract exists. (Trial Court Opinion at 3). The footnote following this conclusion stated that while its Secretary asserted that the agreement of sale entered into between the parties set forth the specific liabilities to be assumed by New Buss, New Buss had “failed to offer this document as evidence”. In addition, the court stated that the Vice President had admitted having these conversations with Byrnes’ Chairman. Therefore, based upon the failure of New Buss to supply the court with a copy of the agreement of sale prior to the issuance of its opinion and the fact that New Buss’ Vice President acknowledged New Buss’ liability under the agreement between Old Buss and Byrnes, the court rejected New Buss’ claim that it had not assumed responsibility for the agreement.

The court, operating under its conclusion that New Buss had assumed Old Buss’ liability under the agreement, addressed the question of whether or not it could exercise in personam jurisdiction over New Buss. In analyzing this question, the court applied the three-prong test set forth in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974) (the “Proctor Test”).

First, the defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws. Hanson v. Denckla [357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)]. Secondly, the cause of action must arise from defendant’s activities within the forum state. Lastly, the acts of the defendant must have substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

Proctor, 228 Pa.Superior Ct. at 18-19, 323 A.2d at 15.

The court stated that the first prong of the test was met when Byrnes, while in Pennsylvania, substantially performed the contract by providing Old Buss with Taney’s name. While the court admitted that Old Buss’ contacts with the Commonwealth were limited, it stated that the economic impact that the contract had on Pennsylvania (i.e. that one of its residents was to receive a 5% commission) additionally satisfied the first prong.

Having stated that the contract was substantially performed in Pennsylvania, the trial court held that the requirement set forth in the second prong was easily fulfilled because New Buss’ failure to perform according to the terms of that contract gave rise to Byrnes’ cause of action.

In discerning whether or not the last prong was met, the court noted that, in the case of a motion to dismiss for lack of personal jurisdiction, “the court must consider the evidence in the light most favorable to the non-moving party.” Eastern Continuous Forms, Inc. v. Island Business Forms, Inc., 355 Pa.Super. 352, 513 A.2d 466 (1986). It also noted that while New Buss had limited contacts with the Commonwealth, Byrnes had very little contact with North Carolina, thereby implying that while neither forum may be convenient for both parties, Pennsylvania was as reasonable forum as any. Thus, the third prong was also satisfied. The court therefore concluded that the exercise of in per sonam jurisdiction over the New Buss was proper and accordingly overruled its Preliminary Objection.

New Buss then filed its Answer and New Matter in which it denied owing Byrnes any money and asserted that the complaint failed to state any grounds upon which relief could be granted. Among the defenses set forth by New Buss in its New Matter were assertions that, Old Buss was the party with whom Byrnes contracted, that any claim that Byrnes had against New Buss was barred by the Statute of Frauds, that New Buss was not liable to Byrnes under any theory of successor liability, that Byrnes’ claims were barred by lack of privity and consideration, that even if New Buss was enriched by Byrnes’ endeavors, it was not unjustly enriched, and Byrnes’ failure to reveal the circumstances underlying its claims to New Buss, barred the claims based upon theories of neglect or unclean hands.

New Buss also filed a complaint against Betty Buss, Jabet and Luma, as additional defendants, alleging that if liability was found with respect to the alleged contract, that liability should rest with one or all of the additional defendants, but not with New Buss. Byrnes subsequently filed a Petition to Strike the complaint against the additional defendants for failure to prosecute. The court approved the Stipulation for Withdrawal of Complaint Against Additional Defendants.

Byrnes then filed its Request for Admissions wherein it requested that New Buss and all additional Defendants admit or deny that (1) New Buss’ only defense was that Old Buss was the entity with whom Byrnes contracted and that therefore Old Buss and not New Buss is liable to Byrnes; and (2) that New Buss had entered into an agreement with the additional defendants to indemnify and hold the additional defendants harmless or release them from liability in connection with Byrnes’ claim.

Upon New Buss’ failure to respond to the request, Byrnes filed a Motion for Summary Judgment. The motion stated that by its failure to respond to the Request for Admissions, New Buss had admitted that its only defense was that Old Buss, and not New Buss, was liable to Byrnes and that New Buss had entered into an agreement with Old Buss to assume any liability that Old Buss may have with respect to Byrnes. Therefore, Byrnes argued that Summary Judgment would be proper because there were no genuine issues of material fact remaining. In response to this motion, New Buss filed a Brief in Opposition stating that the court should not enter judgement on the basis of New Buss’ failure to respond to the Request for Admissions and that there were remaining issues of material fact.

New Buss then also filed a Motion to Reconsider the Order denying Preliminary Objections based upon the issue of jurisdiction. It requested that the trial court re-examine its reasoning in denying New Buss’ argument regarding lack of in personam jurisdiction. New Buss raised the argument that the court’s decision to grant in personam jurisdiction was based upon the Proctor Test and that that test had been displaced by the test set forth in United Farm Bureau Mutual Ins. Co. v. United States Fidelity and Guaranty Co., 501 Pa. 646, 462 A.2d 1300 (1983).

The court granted Byrnes’ Request for Summary Judgment and entered judgment in its favor. Its decision was based primarily upon New Buss’ failure to respond to the Request for Admissions. The trial court, in its brief opinion, relied entirely upon the reasoning set forth in Innovate, Inc. v. United Parcel Service, Inc., 275 Pa.Super. 276, 418 A.2d 720 (1980).

A party on whom requests for admissions of fact are served runs the risk that the facts as set forth in the request for admissions will be conclusively binding on him if he chooses not to file an answer to the request for admissions or files objections to the request.

Id., 275 Pa.Superior Ct. at 283, 418 A.2d at 723.

As of the date of the summary judgment, the court had not yet responded to New Buss’ Motion for Reconsideration. After granting Summary Judgment in favor of Byrnes, the court denied New Buss’ Motion for Reconsideration stating that the motion was moot in light of the fact that Summary Judgment had been granted.

New Buss subsequently filed this timely appeal raising three major issues.

1. Did the lower court have jurisdiction upon Appellant, under the tests set forth in United States Fidelity & Guaranty Co., 501 Pa. 646, 462 A.2d 1300 (1983)?
2. Should the lower court have reconsidered its prior jurisdictional order when moved by Appellant immediately after Derman v. Wilair Services, Inc., 404 Pa.Super. 136, 590 A.2d 317 (1991) was announced?
3. Was the lower court in any position to grant summary judgment for Appellee on this record?

DISCUSSION

Initially, we will address whether the lower court had jurisdiction over New Buss under the test set forth in United Farm. But first it is important to set forth the basic means by which a Pennsylvania court can obtain in personam jurisdiction over a non resident.

The power of a court to exercise in personam jurisdiction over a non-resident defendant turns upon two considerations: (1) jurisdiction must be conferred by the state long-arm statute, and, (2) the exercise of jurisdiction under the statute must meet constitutional standards of due process.

Hewitt v. Eichelman’s Subaru, Inc., 341 Pa.Super. 589, 592, 492 A.2d 23, 24.

Pennsylvania’s long-arm statute sets forth the basis upon which a Pennsylvania court may exercise personal jurisdiction over an individual (including a corporation) who does not reside within the Commonwealth:

(a) General Rule.—A tribunal of this Commonwealth may exercise personal jurisdiction over a person [intentionally omitted] who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(1) Transacting any business in the Commonwealth. Without excluding other acts which may constitute transacting business in this Commonwealth, any of the following shall constitute transacting business for the purpose of this paragraph:
(1) The doing by any person in this Commonwealth of a series of similar acts for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object, (ii) the doing of a single act in this Commonwealth for the purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object with the intention of initiating a series of such acts.

42 Pa.C.S.A. § 5322.

Merely satisfying the Long-Arm Statute, is not sufficient to grant a Pennsylvania court in personam jurisdiction over a foreign corporation.

Satisfaction of the provisions of the Long Arm Statute alone is not sufficient to allow Pennsylvania courts to exercise jurisdiction over non-resident defendants, however. [Appellee] must also show that our courts’ exercise of jurisdiction under the Long Arm statute conforms with federal Constitutional requirements of due process.

Derman v. Wilair Services, Inc., 404 Pa.Super. 136, 590 A.2d 317, 320 (1991).

New Buss contends that the trial court erred in not applying the test for in personam jurisdiction that was set forth in United Farm, 501 Pa. 646, 462 A.2d 1300 (1983), in considering its preliminary objection. It is important to note that this court’s standard of review in reviewing the trial court’s ruling on preliminary objections is as follows:

When Preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt ... Moreover, when deciding a motion to dismiss for lack of personal jurisdiction, the court must consider the evidence in the light most favorable to the non-moving party. Kenneth H. Oaks, Ltd., v. Josephson, 390 Pa.Super. 103, 105, 568 A.2d 215, 216 (1989) (citations omitted); see also Delaware Valley Underwriting v. Williams & Sapp., 359 Pa.Super. 368, 373, 518 A.2d 1280, 1282 (1986).

Derman, 404 Pa.Super. at 140, 590 A.2d at 319.

New Buss argues that the trial court erred in applying the Proctor Test in determining its Preliminary Objections. Shortly after the trial court judge issued his opinion, the Pennsylvania Supreme Court handed down its decision in Derman. In deciding whether or not the court had in personam jurisdiction over the foreign corporation defendant, the Derman court applied the test set forth in United Farm, 501 Pa. 646, 462 A.2d 1300 (1983) rather than the Proctor Test. New Buss argues that the Pennsylvania Supreme Court, through its decision in Derman abandoned the Proctor Test. Based upon that notion, New Buss argues that the test for determining in personam jurisdiction set forth in United Farm is the proper test and should have been applied by the trial court in ruling on the Preliminary Objections. The Derman court summarized the United Farm test (the “United Farm Test”) as follows:

... [A] determination of whether the Commonwealth’s exercise of jurisdiction comports with due process involves examining the connection between the defendant, the forum and the litigation. This examination is conducted in order to (1) determine whether the exercise of jurisdiction would subject the defendant to the burden of litigating in a distant or inconvenient forum, and (2) insure that the Commonwealth does not reach out beyond the limits imposed on it as a coequal sovereign in a federal system.

Derman, 404 Pa.Super. at 145, 590 A.2d at 322.

The cause of action in United Farm stemmed from an automobile accident that occurred in Pennsylvania. The insured’s assigned risk-carrier brought a declaratory judgment action against the insured’s liability carrier to determine responsibility for the payment of Pennsylvania no-fault benefits. The insured was a resident of Indiana, the liability carrier was an Indiana corporation and the insuranee contract was entered into in Indiana. The only contact that Pennsylvania had with the dispute was that the accident occurred within the Commonwealth. The liability carrier argued that it was not responsible for paying the Pennsylvania no-fault benefits because Indiana did not provide no-fault benefits and that it lacked the requisite minimum contacts with Pennsylvania to make it subject to the jurisdiction of the Pennsylvania courts. The Pennsylvania Supreme Court agreed with the liability carrier’s argument. The court cited that the liability carrier, while its contract had an all-encompassing clause that stated that the carrier would comply with the insurance laws of any state within the United States, “did not purposely avail itself of the privilege of acting within Pennsylvania, nor did it pursue activities within the state in such a way as to reasonably anticipate being haled into court there.” United Farm, 501 Pa. 646, 655, 462 A.2d 1300, 1304.

The purpose of the United Farm Test is to:

... determine whether [Appellant] purposely availed [itself] of the privilege of conducting business within the Commonwealth. If, based on that evaluation, it appears that the [Appellant] should have reasonably anticipated being haled into court here, then we may properly exercise jurisdiction if that exercise is in keeping with notions of fair play and substantial justice. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616 (1986).

Derman, 404 Pa.Super. at 145, 590 A.2d at 322.

The court in United Farm was faced with the possibility of requiring an insurer to pay no-fault insurance in Pennsylvania when it had never purposely availed itself of acting within Pennsylvania. The present case presents a very different set of facts. Old Buss was aware that it was entering into an agreement with a Pennsylvania resident. It pursued Byrnes’ offer to supply Old Buss with the name of a potential customer. The fact that Byrnes was a Pennsylvania company put Old Buss on notice that a breach of that contract could subject Old Buss to the jurisdiction of the Pennsylvania courts. In fact, the correspondence between Old Buss and Byrnes clearly supports the notion that Old Buss was cognizant of the fact that, in the event that it consummated any sales with Taney, it would have an obligation to Byrnes. Furthermore, in his deposition, New Buss’ Vice President admitted that he had spoken with Byrnes’ Chairman and assured him that Byrnes would be paid upon settlement of New Buss’ dispute with Taney. In light of this evidence and New Buss’ failure to provide the trial court with a copy of the agreement of sale between Old Buss and New Buss, the lower court in ruling on New Buss’ Preliminary Objection held that the record indicated that New Buss had stepped into the shoes of Old Buss with respect to the fee agreement.

Byrnes argues that while the trial court did not apply the United Farm Test, the purpose of the test was fulfilled. We agree. It is apparent that the trial court, by applying the Proctor Test, took into account whether New Buss should have reasonably anticipated being haled into court here if it breached its agreement with Byrnes. The trial court also addressed the issue of the reasonableness of choice of forum and concluded that Pennsylvania was a reasonable forum. As stated earlier, a preliminary objection should be sustained in cases which are free from doubt. The trial court judge, recognizing that the granting of New Buss’ Preliminary Objection would result in dismissal of the suit, could not grant the Preliminary Objection because New Buss neglected to include a copy of the agreement of sale in the record and therefore failed to adequately refute Byrnes’ claim of New Buss’ successor liability. Therefore, after considering the evidence presented, in the light most favorable to the Byrnes, the trial court properly denied New Buss’ Preliminary Objection.

The second issue that New Buss raises on appeal is whether the trial court should have reconsidered its prior jurisdictional order after Derman was announced. New Buss filed its Petition for Reconsideration after Byrnes’ Motion for Summary Judgment had been filed. The trial court issued its opinion regarding the Motion for Summary Judgment prior to ruling on the Motion for Reconsideration. The court did enter an opinion pursuant to the Motion for Reconsideration after the Summary Judgment had been entered and stated that, in light of the granting of the summary judgment, the jurisdiction issue was now moot. As we have already stated, the purpose of the United Farm Test as set forth in Derman was fulfilled by the trial court’s application of the Proctor Test. No error was committed.

The third issue raised by this appeal is whether the trial court was in any position to grant summary judgment in favor of Byrnes. Byrnes served New Buss with a Request for Admissions wherein the it sought an admission or denial of two items. The first request asked New Buss if its only defense was, that Old Buss, if anyone, was liable to Byrnes under the agreement. The second request, sought to have the New Buss admit or deny that it had entered into an agreement with Old Buss whereby New Buss agreed to assume any liability that may fall upon Old Buss with respect to the contract with Byrnes. New Buss failed to respond to the request. Under Pa.R.C.P. 4014, failure to respond to a request for admissions deems the facts contained within the request, admitted by the party from whom the admission was sought. The trial court judge correctly relied upon the holding in Innovate, Inc. v. United Parcel Service, Inc., 275 Pa.Super. 276, 418 A.2d 720 (1980), wherein the court held that, if the party from whom the admissions were sought fails to respond, by either answering or objecting thereto, within the established time frame, that party runs the risk of having those facts deemed admitted.

New Buss did not respond to the request and did not file an objection to the request. New Buss asserts that it chose not to respond to the request because the request was “unintelligible as well as self contradictory.” (Appellant’s brief at p. 30). This is not a sufficient reason for failing to respond. The rule clearly states that the party receiving the request must respond by answering or objecting. In this case, New Buss chose to ignore the rule and run the risk of having the facts contained in the request deemed admitted.

Therefore, we find no error in the trial court’s exercise of in personam jurisdiction over New Buss or in its granting Byrnes’ Motion for Summary Judgment.

Judgment affirmed.


source: Caselaw Access Project

author: HUDOCK, Judge: BROSKY, Judge,

license: Public Domain

text:
    609 A.2d 1368
    COMMONWEALTH of Pennsylvania, Appellee, v. Antonio GONZALES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 12, 1991.
    Filed May 28, 1992.
    Reargument Denied July 23, 1992.

      John B. Elbert, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before MONTEMURO, HUDOCK and BROSKY, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Appellant after he was convicted, at the conclusion of a non-jury trial, of murder in the third degree. Timely filed post-verdict motions were denied by the trial court and Appellant was sentenced to the mandatory minimum of life imprisonment as required by 42 Pa.C.S. § 9715 (Purdon 1982) (Life imprisonment for homicide). This appeal followed in which Appellant raises three instances of trial court error. We affirm.

Appellant first claims that the evidence was insufficient to sustain his third degree murder conviction on the basis that the Commonwealth failed to prove malice. Evidence is sufficient to support a conviction so long as the fact-finder reasonably could have determined that every element of the offense was established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985). In making this determination, a reviewing court must consider the evidence in the light most favorable to the Commonwealth, as verdict winner, and must draw all reasonable inferences therefrom in favor of the Commonwealth. Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989). Malice is a necessary element of proof to support a conviction of murder in the third degree. Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978), cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978); Commonwealth v. Austin, 394 Pa.Super. 146, 575 A.2d 141 (1990). Malice is a legal term that encompasses not only ill will, but also wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty. Commonwealth v. Hunter, 381 Pa.Super. 606, 554 A.2d 550 (1989). Malice may be inferred from the use of a deadly weapon on a vital part of the victim’s body. Id.

At trial, the Commonwealth and Appellant presented divergent testimony regarding the events leading to the killing in question. The two versions of the events which transpired prior to the killing may be summarized as follows:

The Commonwealth’s version of the events was given through the testimony of Jose Rosario (Rosario). Rosario testified that he and the victim, Jesus Rodriguez (Rodriguez), were crossing the street when an automobile sped by, nearly hitting Rosario. Rosario exchanged expletives with the occupants of the vehicle, Appellant and Bienviendo Morales (Morales). Thereafter, Appellant and Morales alighted from the automobile, Appellant wielding a screwdriver and Morales carrying a baseball bat. Appellant threatened to stab Rosario and Rodriguez with the screwdriver. Appellant and Morales then exchanged the screwdriver and the bat, whereupon Appellant walked around the back of the automobile and struck Rodriguez on the head with the bat. After striking the blow, Appellant and Morales fled in the automobile.

Appellant’s version of the events is markedly different. Appellant testified that Rosario jumped in front of the automobile in which he and Morales were riding and that Rodriguez was knocking on the side passenger window asking Appellant and Morales if they wanted to buy drugs. Appellant and Morales refused the offer and drove to the home of Appellant’s girlfriend. Shortly after he left the home of his girlfriend, someone called Appellant to the corner. Appellant testified that Rodriguez came towards him wielding a baseball bat and swung it at Appellant. Appellant stepped back and then grabbed the bat and shoved Rodriguez. Appellant stated that he struck Rodriguez in an act of self-defense because the latter was coming toward him and he (Appellant) was afraid.

The essence of Appellant’s argument is that the trial court, sitting as fact-finder, should have believed his version of the events because his version supports his claim of self-defense. Thus, Appellant asserts, the Commonwealth failed to prove legal malice because it did not disprove self-defense beyond a reasonable doubt.

It is true that the Commonwealth must disprove a claim of self-defense beyond a reasonable doubt. Commonwealth v. Hunter, supra. And it is also the case that a successful claim of self-defense negates the element of malice, as the two concepts are mutually exclusive. Commonwealth v. Hinchcliffe, supra; Commonwealth v. Heatherington, 477 Pa. 562, 385 A.2d 338 (1978). To negate a claim of self-defense, the Commonwealth is required to prove any one of the following: (1) the defendant’s belief that it was necessary to kill the victim in order to protect himself from death or serious bodily harm was unreasonable; (2) the defendant provoked the use of force; or (3) the defendant had a duty to retreat and could safely do so. Commonwealth v. Hunter, supra.

Appellant’s sufficiency claim necessarily relies on a finding that his version of the events in question is more credible than the testimony presented by the Commonwealth. As fact-finder, the trial court was free to reject or accept all, part, or none of the testimony of any witness. Commonwealth v. London, 461 Pa. 566, 337 A.2d 549 (1975); Commonwealth v. Hunter, supra. Serving in this capacity, the trial court rejected Appellant’s version of the events. The trial court’s disbelief of Appellant’s assertion of self-defense obviates the need for the Commonwealth to disprove the claim. Thus, we need only determine whether the Commonwealth proved malice beyond a reasonable doubt.

Upon review of the record, we are satisfied that the Commonwealth presented sufficient evidence to support the element of malice. The testimony which the trial court credited reveals that Appellant first wielded a screwdriver with which he threatened to stab the victim and Rosario, and then brandished a baseball bat with which he clubbed the victim to death. Moreover, the trial court could properly draw an inference of malice from Appellant’s intentional use of the baseball bat upon the victim’s head. See Commonwealth v. Hinchcliffe, supra. Appellant’s first claim is without merit.

Appellant next claims that the trial court erred in refusing to grant a mistrial when the prosecutor attempted to introduce irrelevant and prejudicial evidence of Appellant’s alleged involvement in narcotics distribution. We disagree.

The decision whether to grant a mistrial is within the sound discretion of the trial court and will not be reversed absent a flagrant abuse of that discretion. Commonwealth v. Meadows, 381 Pa.Super. 354, 553 A.2d 1006 (1989), alloc. den’d., 524 Pa. 618, 571 A.2d 381. The admission or exclusion of evidence, insofar as its relevance is concerned, is a matter committed to the trial court's discretion. Absent an abuse of discretion or an error of law, the trial court’s ruling will not be disturbed on appeal. See, e.g., Commonwealth v. Edward Davis, 394 Pa.Super. 591, 576 A.2d 1005 (1990). Moreover, when the court is sitting as fact-finder it is presumed that inadmissible evidence is disregarded and that only relevant and competent evidence is considered. Commonwealth v. Kevin Davis, 491 Pa. 363, 421 A.2d 179 (1980). In a non-jury trial, the court is presumed to have disregarded evidence too prejudicial to be considered by a jury, thus assuming that the court in a bench trial would follow the very instructions which it would otherwise give to a jury. Commonwealth v. Wright, 234 Pa.Super. 83, 87-89, 339 A.2d 103, 106 (1975) (citing Commonwealth v. Mangan, 220 Pa.Super. 54, 281 A.2d 666 (1971)). Cf. Commonwealth v. Kevin Davis, supra (court sitting as fact-finder expressly stated that it had disregarded appellant’s prior criminal record in reaching verdict); cf. Commonwealth v. Stantz, 353 Pa.Super. 95, 509 A.2d 351 (1986) (appeal denied) (bias or hostility towards defendant as a result of intemperate prosecutorial remarks made in closing are lessened or even eliminated when trial court sits as fact-finder).

The evidence which Appellant maintains was improperly introduced concerned Appellant’s alleged involvement in a narcotics distribution organization known as the OK Corral. Appellant also objects to the prosecutor’s reference to a nickname used by Appellant written next to the initials “OKC” which appeared in a photograph depicting the area where the killing occurred. The nickname and initials “OKC” appeared on a wall depicted in the photograph. In addition, Appellant contends that the prosecutor improperly elicited a response from a police officer indicating that an area near the scene of the killing was a narcotics distribution area. This response was elicited shortly after a witness testified that he had seen Appellant in that area.

As to the first alleged impropriety, Appellant called witness Jose Torres who gave a version of the killing similar to the one proffered by Appellant and, thus, favorable to the defense. Upon cross-examination, the prosecutor asked this witness if he had sold drugs in the area of the killing and if he had been a member of an organization called the OK Corral. The witness denied selling drugs in that area but admitted that he sold drugs in another area. However, the witness did not respond to the question asking whether he was a member of the OK Corral because both defense counsel moved for a mistrial, which the court denied.

With regard to the alleged improper reference to the nickname and the initials “OKC” on the wall depicted in the photograph, the prosecutor attempted to demonstrate that Appellant was involved in narcotics distribution in the area of the killing. The Commonwealth introduced this evidence after Appellant testified on cross-examination that he was offended and upset that Rosario and the victim asked him and his co-defendant to buy drugs. Appellant testified that his response to Rosario and the victim at that time was that he did not buy or have any connection with narcotics.

As to the elicitation from a police officer witness that an area near the killing was frequented by Appellant and was a narcotics distribution area, our review of the trial transcript discloses that the prosecutor’s questioning did not elicit or exploit such reference.

[BY THE COMMONWEALTH]

Q. Did you have contact with [Appellant] in that area? Did you see him in that area is what I’m saying. I don’t mean arrests or anything like that. Did you see him in that area?
A. Yes, I had numerous contacts with [Appellant] in the area of 7th and Russell, Marshall and Tioga, 7th and Tioga, all in that area there.
Q. Now, you said 7th and Russell, you’re familiar with that. You said 7th and Tioga. Where is that in relation to 7th and Russell?
A. 7th and Tioga is about three quarters of a city block north of 7th and Russell.
Q. And what’s at 7th and Tioga, if anything, unusual?
A. 7th and Tioga is the center spot of a high narcotics area.
Q. Wait, wait.
THE COURT: That’s not what he was asking.
MR. FITZPATRICK [Counsel for co-defendant]: Move to strike.
THE COURT: That’s granted. You may lead the witness.

N.T., p. 316; emphasis supplied. It is apparent from the above exchange that neither the Commonwealth nor the court expected the witness’ volunteered, non-responsive answer to the query concerning Seventh and Tioga. The court immediately struck the witness’ response; the Commonwealth did not exploit the reference to the area as a narcotics distribution area; further questioning and response were limited to the subject of Appellant’s general presence at Seventh and Tioga and at Marshall and Tioga.

Our review of the objected-to conduct of the prosecutor reveals that the court denied Appellant's motion for a mistrial with respect to the question addressed to Jose Torres regarding his involvement with the OK Corral. However, the court struck this reference as well as the reference to illegal activity in an area frequented by Appellant and near the killing. Likewise, the court disallowed continued questioning concerning the nickname and initials appearing in the photograph, thus evidencing its acknowledgement of the impropriety in permitting the continued questioning and references.

Given the above standards relating to inadmissible evidence in a non-jury trial, we are unpersuaded that the court erred in failing to grant a mistrial, for the court, by its actions, evinced a disregard for any improper references or questioning. Moreover, as we have already noted, the court struck the references to the nickname and the initials depicted in the photograph, and to an area frequented by Appellant as being a narcotics distribution area. The court also refused to permit further questioning regarding Appellant’s alleged involvement in the OK Corral. We can find no indication in the record that the court below did not conduct a fair and impartial trial and did not properly considered only claim to the contrary is, therefore, without merit.

Appellant’s final claim is that the court below erred in applying the mandatory recidivist sentencing provisions of 42 Pa.C.S.A. § 9715(a) (Purdon 1982). This section requires the court to impose a term of life imprisonment upon one who stands convicted of murder in the third degree and who has been previously convicted of murder or voluntary manslaughter at any time. Appellant concedes that he has a previous conviction for murder in the third degree. He contends, however, that the imposition of sentence under § 9715(a) is improper in this case because he had not yet been convicted of the previous homicide when he committed the instant offense. We do not agree. Section 9715 reads, in pertinent part:

§ 9715. Life imprisonment for homicide
(a) Mandatory life imprisonment.—Notwithstanding the provisions of section 9712 (relating to sentences for offenses committed with firearms), 9713 (relating to sentences for offenses committed on public transportation) or 9714 (relating to sentences for second and subsequent offenses), any person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or of the same or substantially equivalent crime in any other jurisdiction shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary.
(b) Proof at sentencing.—Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing____

(Emphasis supplied.) Appellant was previously convicted of murder in the third degree in July 1989 for a killing which occurred in May 1988. The instant offense was committed on December 2, 1988. Neither the court nor the Commonwealth has challenged the existence of the previous conviction or the fact that the instant offense was committed before Appellant’s conviction for the previous homicide.

When determining the meaning of any particular recidivist statute or section, it is the language of that statute or section, and no other, which must be interpreted and applied. Hence, decisions of this Court dealing with other sections of the Judiciary Code and the Motor Vehicle Code áre not controlling. See, e.g., Commonwealth v. Dickerson, 404 Pa.Super. 249, 590 A.2d 766 (1991), alloc. granted, 528 Pa. 627, 598 A.2d 281 (interpretation of the recidivist penalty provisions of 42 Pa.C.S. § 9714(b)(2)); Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992) (en banc) (interpreting recidivist provisions of 75 Pa.C.S. § 3731(e)); Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027 (1991) (en banc) (previous conviction must antedate current offense for purpose of application of enhanced prior record score of sentencing guidelines). Section 9715(a) clearly states that it shall be operative “notwithstanding [the provisions of] [§] 9714” and “any other provision of this title or other statute to the contrary.”

The above-cited subsections of § 9715 are clear and unambiguous. Subsection (b) clearly states that § 9715 becomes applicable at the time of sentencing. Thus, if at that time, the defendant’s record shows a prior conviction for murder or voluntary manslaughter which occurred at any time, that person shall be sentenced to a term of life imprisonment. “At any time” refers not only to a prior conviction which may have occurred more than seven years prior to the sentencing offense, but also clearly means that the order of commission, or conviction, of the offenses requiring a life sentence is immaterial so long as, at the time of sentencing on a third degree murder conviction, a defendant has been convicted on another charge of murder or voluntary manslaughter. The plain language of § 9715(a) and (b) cannot be interpreted otherwise. Appellant’s claim to the contrary is, therefore, without merit.

Judgment of sentence is affirmed.

BROSKY, J., files a concurring and dissenting opinion.

BROSKY, Judge,

concurring and dissenting.

I am in agreement with my colleagues’ disposition on all issues save the last.

As his final issue, appellant maintains that the sentencing court erred in applying the mandatory recidivist sentencing provisions of 42 Pa.C.S.A. § 9715(a). This section requires the court to impose a term of life imprisonment upon one who has been convicted of murder in the third degree who has been previously convicted of murder or voluntary manslaughter at any time. Appellant concedes that he has a previous conviction for murder in the third degree. He contends, however, that the imposition of sentence under Section 9715(a) is improper in this case because he had not yet been convicted of the previous homicide when he committed the instant offense. Because the jurisprudence currently prevailing in this Commonwealth supports appellant's position, I would be inclined to vacate the judgment of sentence of life imprisonment imposed pursuant to Section 9715(a) and remand for resentencing. Section 9715(a) reads, in relevant part, as follows:

§ 9715. Life imprisonment for homicide
(a) Mandatory life imprisonment.— ... [A]ny person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or of the same or substantially equivalent crime in any other jurisdiction shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary.

Emphasis supplied. Appellant was previously convicted of murder in the third degree in July 1989. The instant offense was committed on December 2, 1988. Neither the trial court nor the Commonwealth has challenged the existence of the previous conviction or the fact that the instant offense was committed before conviction for the previous homicide had obtained.

In Commonwealth v. Dickerson, 404 Pa.Super. 249, 590 A.2d 766 (1991), this court was faced with a similar issue concerning the interpretation of the recidivist penalty provisions of 42 Pa.C.S.A. § 9714(b)(2). Section 9714 provides for the imposition of a mandatory minimum sentence of five years’ imprisonment for a person who has been convicted of, inter alia, third-degree murder who had been previously convicted of any one of a number of crimes of violence set forth in subsection (b)(1) of the statute. Section 9714(b) reads, in part, as follows:

(b) Prior convictions for crimes of violence.—For the purposes of subsection (a) [the penalty provision], an offender shall be deemed to have prior convictions for crimes of violence if both of the following conditions hold:
(1) [Sets forth the specific crimes of violence for which the offender must have been previously convicted in order to invoke the mandatory recidivist penalty provisions of subsection (a)]
(2) The previous conviction occurred within seven years of the date of the commission of the instant offense____ A previous conviction shall include any conviction, whether or not litigation is pending concerning that conviction.

Emphasis supplied. The Dickerson court held that for the purpose of invoking this recidivist penalty statute, the previous conviction referred to in subsections (b)(1) and (2) must have antedated the commission of the current offense within the seven-year prescribed period. Appellant relies upon this court’s decision in Commonwealth v. Dickerson, supra, to support his argument that the application of the mandatory recidivist penalty provision of Section 9715(a) to him was erroneous as he had not yet been convicted of the first homicide at the time when he committed the instant offense.

The trial court in the case at bar stated in its Opinion: “Section 9715 applied to ‘any person ... who has previously been convicted at any time of murder----’” At 17; emphasis supplied by the trial court. However, the court provided no reasoning or analysis for its conclusion that Section 9715 applied instantly except to note that its “language is clear and unambiguous, [sic] and by its plain meaning applies to this [appellant].” Id. Appellant theorizes in his Brief to this court that the trial court interpreted the emphasized portion of the above statute to mean that the order of occurrence of a previous conviction and a current offense is irrelevant. In other words, the court interpreted the words “at any time” to mean “in any order.” In this regard, appellant further argues that the trial court was without the benefit of our decision in Commonwealth v. Dickerson, supra, in making its determination that Section 9715 applied to him.

I do not believe that the trial court’s cognizance of the Dickerson case would have altered its decision. I agree with appellant that the court interpreted the “at any time” language of Section 9715(a) to mean “in any order” to contrast the open-ended time period in that statute with the seven-year previous conviction period set forth in Section 9714(b)(2). This seven-year time period, however, does not direct the order in which convictions must occur to invoke the recidivist penalty provisions of Section 9714(a). Rather, it merely formulates a time frame or a “look-back” period within which a prior conviction may be considered for the purpose of invoking the recidivist provisions of the statute. Cf Commonwealth v. Kearns, 365 Pa.Super. 13, 528 A.2d 992 (1987) (seven-year period for application of recidivist penalty provision of 75 Pa.C.S.A. § 3731(e) measured from date of prior conviction to date of commission of second offense; second offense must occur within seven-year period of previous conviction).

The “at any time” language appearing in Section 9715(a), on the other hand, does not call for an unstructured, seesaw approach in determining if a prior conviction exists for the purpose of invoking the recidivist provisions of the statute. The purpose of this language is not to permit a court to determine whether a prior conviction exists without regard to the order in which a prior conviction and the commission of a current offense occurred. Rather, it allows for an unlimited time frame or “look-back” period between commission of the instant offense and conviction for the prior offense for the purpose of determining the applicability of the recidivist penalty provision to a particular case. It does not do away with the requirement that the prior conviction predate the commission of the current offense. In essence, this language, without more, merely extends the “look back” period.

In conjunction with the phrase “at any time”, the statute refers to “previous convictions”, id., subsection (b), and to one “who has previously been convicted at any time”, id., subsection (a). Our supreme court has stated: “When the term ‘conviction’ is used in a statute, it means ‘the ascertainment of the guilt of the accused and judgment thereon by the court’ ”. Commonwealth v. Kimmel, 523 Pa. 107, 113, 565 A.2d 426, 428 (1989), citing Commonwealth v. Minnich, 250 Pa. 363, 95 A. 565 (1915). Similarly, “ ‘[violating’ in the common usage of the term refers to the time when the offensive conduct takes place, and it should not be confused with the point where the judicial process judges a violator to be accountable and then administers its punishment in accordance with due process.” Id. Hence, it is apparent from the foregoing definitions that a previous conviction implicates a finding of guilt on the record. Therefore, I would agree with appellant that the mandatory recidivist penalty provisions of Section 9715(a) were improperly applied in this case. At the time of the commission of the instant offense, appellant had not yet earned the status of recidivist offender, for he had not yet met the threshold requirement of this distinction, i.e., a previous conviction for an earlier committed homicide.

This interpretation, moreover, is in accord with the jurisprudence currently prevailing in our appellate courts on the subject of recidivist penalties. See Commonwealth v. Kimmel, supra (recidivist penalty provisions of 75 Pa.C.S.A. 3731(e) which calls for mandatory enhanced sentence for one convicted of driving under the influence who has been previously convicted of violating Section 3731 requires that previous conviction antedate commission of current offense). Accord Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992) (en banc); Commonwealth v. Ashton, — Pa.Super.-, 607 A.2d 1120 (1992) (en banc judgment order); Commonwealth v. Turner, — Pa.Super. -, 607 A.2d 1127 (1992) (en banc judgment order); Com monwealth v. Smith, — Pa.Super. -, 607 A.2d 1126 (1992) (en banc judgment order); Commonwealth v. Eck, 411 Pa.Super. 465, 601 A.2d 1261 (1992) (en banc); Commonwealth v. Tobin, 411 Pa.Super. 460, 601 A.2d 1258 (1992) (en banc); Commonwealth v. Kearns, supra. See also Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027 (1991) (en banc) (previous conviction must antedate current offense for purpose of application of enhanced prior record score of Sentencing Guidelines).

I would vacate the judgment of sentence entered in this case and remand for resentencing.

      . 18 Pa.C.S. § 2502(c) (Purdon 1983).


author: POPOVICH, Judge. JOHNSON, Judge,

text:
    609 A.2d 1376
    COMMONWEALTH of Pennsylvania, Appellee, v. Jackie Lee LONER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1992.
    Filed May 28, 1992.
    Reargument Denied Aug. 3, 1992.

      James N. Bryant, Millheim, for appellant.
    Ray F. Gricar, Dist. Atty., Bellefonte, for Com., appellee.
    Before McEWEN, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Centre County, following appellant’s conviction on three counts each of rape, incest, indecent assault, corruption of minors and statutory rape. The charges against appellant stemmed from the alleged sexual abuse of his eight year old daughter. Herein, appellant questions whether the trial court erred in admitting the testimony of a Cindy Miele, a Children & Youth Services caseworker, concerning the use of anatomically correct dolls during the initial interview of the child-victim. Since we are convinced the testimony of the CYS caseworker impermissibly infringed upon the jury’s function of ascertaming the credibility of the victim, we reverse and remand for a new; trial.

Appellant argues that the trial court erred in allowing, over objection, the direct testimony of CYS caseworker Cindy Miele. Specifically, appellant argues that the testimony concerning the victim’s use of anatomically correct dolls was equivalent to a “polyester polygraph,” used solely for the purpose of ascertaining the validity of the victim’s allegations. Further, appellant asserts the Ms. Miele’s testimony impermissibly bolstered the credibility of the victim, thereby, invading the exclusive province of the jury.

The record reveals that Ms. Miele was the caseworker from CYS who investigated the victim’s allegations of sexual abuse. She testified that the purpose of her initial interview with the victim was “to determine whether or not the report that was received from our office was an accurate report. Whether there was any truth to the matter that Mr. Loner had sexually abused [the victim]” Trial Transcript, p. 102 (emphasis added). Subsequently, Ms. Miele again stated that during her interview, she “was attempting to validate [the victim’s] report.” Trial Transcript, p. 106 (emphasis added). While attempting to “validate” the report, Ms. Miele provided the victim with anatomically correct dolls so that the child could demonstrate the alleged sexual acts with the dolls. Trial Transcript, p. 107. After describing the anatomically correct dolls and their investigatory function, Ms. Miele testified that the victim used the dolls in a manner “consistent” with her prior oral statement. Trial Transcript, p. 108.

Ms. Miele further testified that following her interview with the victim, she “determined that it would not be safe for [the victim] to return to her parents’ home.” Trial Transcript, p. 110. Significantly, Ms. Miele specifically testified that she told Mrs. Loner and her mother-in-law that “I believed the victim’s statements and accordingly had placed her in foster care until the legal work was completed.” Trial Transcript, p. 110 (emphasis added).

The law is clear that the determination of the veracity of a witness is reserved exclusively for the jury. Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988). As such, testimony, especially that of an expert, which serves to bolster the veracity of a child sexual abuse victim impermissibly infringes upon the province of the jury. Seese, supra; Commonwealth v. Garcia, 403 Pa.Super. 280, 588 A.2d 951 (1991). Accordingly, we must determine the purpose for which Cindy Miele’s testimony was offered.

We are convinced that Ms. Miele’s testimony was offered to “bolster the veracity” of the victim and, therefore, impermissibly infringed upon the jury’s function of assessing the victim’s credibility. Ms. Miele testified that her function was to determine whether there was any “truth” to the report of sexual abuse and to “validate” the report. She testified that the child’s oral recitation of the abuse was consistent with her use of the dolls. Most importantly, Ms. Miele specifically testified that after her initial investigation was complete, she “believed” the victim. We find that the Commonwealth should not be permitted to present testimony which so clearly usurps the jury’s function by allowing them to defer to Ms. Miele’s assessment of the victim’s allegations.

This is not merely a case where the Commonwealth presented evidence of the child-victim’s prior consistent statement in order to corroborate the victim’s testimony. See Commonwealth v. Willis, 380 Pa.Super. 555, 552 A.2d 682 (1988) (even unimpeached testimony of a child-victim may be corroborated by prior consistent statement); Commonwealth v. Stohr, 361 Pa.Super. 293, 522 A.2d 589 (1987) . Rather, through Ms. Miele’s testimony, the Commonwealth entered into evidence not only the victim’s prior consistent statement (and consistent use of the anatomically correct dolls) but also presented the CYS caseworker’s personal assessment of the truth of those statements. Simply, Ms. Miele’s testimony that she believed the victim should not have been allowed. Accordingly, we reverse the decision below and remand this case for a new trial.

Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I must respectfully dissent. Upon careful review of the record, I find the issue addressed by the majority to have been waived. In the alternative, under the circumstances of this case, I find no merit in Loner’s contention that Ms. Miele’s testimony was inadmissible. I am also compelled to note that the thrust of the majority’s opinion depends upon portions of the record which are not challenged by Loner. Accordingly, I would affirm the judgment of sentence.

It is axiomatic that only issues raised by specific objection in the trial may be raised on appeal. Commonwealth v. Willis, 380 Pa.Super. 555, 552 A.2d 682 (1988), appeal denied, 522 Pa. 583, 559 A.2d 527 (1989). When a specific objection to the admission of evidence is made at trial, all other reasons for excluding the evidence are waived. Commonwealth v. McMillan, 376 Pa.Super. 25, 545 A.2d 301 (1988) . On appeal, Loner argues that the portion of Ms. Miele’s testimony concerning J.L.’s use of anatomically correct dolls bolstered the credibility of the victim, thereby invading the province of the jury.

The record reveals that, at trial, a sidebar discussion was held concerning the offer of proof for Ms. Miele’s testimony. N.T., March 12, 1990, at 90-93. During that discussion, Loner’s counsel objected to the Commonwealth’s proposed introduction of any testimony describing J.L.’s use of anatomically correct dolls. The objection was stated as follows:

Your Honor, I submit that that is hearsay. She didn’t put [J.L.] in her room and look through a two-way window and just make observations. The anatomical dolls were used for the expressed purpose of communicating, communication from [J.L.] to Cindy as to what had allegedly occurred.
We’re not talking here about just simple observation on the part of Ms. Miele just sitting at a distance and watching what [J.L.] was doing. She was specifically interacting with her. I know this based on previous testimony at the preliminary hearing as well as CYS case and it is hearsay. It’s hearsay because she used them specifically because she’ll testify that a young child feels uncomfortable talking about and they communicate it by the use of anatomical dolls.
Again, if she testifies as to her conclusion of that there was sexual abuse, that’s acceptable. I have no objection to that. But anything beyond that in terms of what was said, including the use of anatomical dolls is clearly hearsay, even the structure that they were in when she was using the anatomical dolls.

N.T., March 12, 1990, at 91-92 (emphasis added).

The initial objection to the admission of Ms. Miele’s testimony concerning the anatomically correct dolls was specifically grounded on hearsay. During the direct testimony of Ms. Miele, nine objections were made during the direct testimony of Ms. Miele. Eight objections were specifically based on hearsay. N.T., March 12, 1990, at 98, 99, 103, 104, 106, 107, 108. The ninth objection was grounded on the leading nature of a question asked by the Commonwealth. Id. at 105. Further, in his Amended Motion for a New Trial and In Arrest of Judgment, filed on June 11, 1990, Loner sets forth his objection to the testimony concerning the dolls as follows:

The Court erred in permitting Cynthia P. Miele to give hearsay testimony regarding the statements made to her by the alleged victim through the use of anatomical dolls (emphasis added).

Other than before this court on appeal, counsel in no way indicated that his objections to Ms. Miele’s testimony were based upon an infringement of the jury’s function of ascertaining credibility. Because counsel failed to assert that ground for any objection made at trial, or in his post trial motions, the issue must be deemed waived. Pa.R.Crim.P. 1123(a), (c)(3); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

Even had the issue been properly preserved, I am not convinced that Ms. Miele’s testimony was offered to “bolster the veracity” of the victim. My review of the entire trial record reveals that after the examining nurse, the examining doctor, and two investigative police officers testified, Ms. Miele was called to describe her role in the investigation of the abuse report. The Child Protective Services Act, 23 Pa.C.S. § 6361 provides that every children and youth service agency shall establish a Child Protective Service Agency responsible for receiving and investigating all reports of child abuse. § 6368 of the Act further provides:

§ 6368. Investigation of reports
(a) General rule.—Upon receipt of each report of suspected child abuse, the child protective service shall commence within 24 hours an appropriate investigation which shall include a determination of the risk to the child or children if they continue to remain in the existing home environment as well as a determination of the nature, extent and cause of any condition enumerated in the report and, after seeing to the safety of the child or children, immediately notify the subjects of the report in writing of the existence of the report and their rights pursuant to this chapter in regard to amendment or expungement.
§ 6315(f) provides:
(f) Conference with parent or other custodian.—-A conference between the parent, guardian or other custodian of the child taken into temporary protective custody pursuant to this section and the caseworker designated by the child protection service to be responsible for the child shall be held within 48 hours of the time that the child is taken into custody for the purpose of:
(1) Explaining to the parent, guardian or other custodian the reason for the temporary detention of the child and the whereabouts of the child.

Here, the Commonwealth, in its offer of proof explained that Ms. Miele would be testifying about her role in the investigation. She testified on direct examination that on July 31, 1989, she received a telephone call from a state police officer regarding a report of abuse. N.T., March 12, 1990, at 95. Ms. Miele testified that because it was her responsibility to assure the safety of J.L., she telephoned Mrs. Loner at home. Mrs. Loner assured her that the children were safe. Ms. Miele explained to Mrs. Loner that she would have to interview the children and the parents the next day. Mrs. Loner indicated, that she would not be willing to take off work to bring the children to the office. Id. at 96. The next day, Ms. Miele obtained an emergency court order which permitted her to enter the Loner’s home and transport J.L. to her office. Id. at 97.

Ms. Miele testified that on the same day, she spoke with J.L. at her office. She testified that she was at a point in her investigation where she was attempting to determine whether the report received by her office was an accurate report. Id. at 102. Ms. Miele testified that J.L. was cooperative in giving her a history pertinent to her investigation. Id. at 106. Ms. Miele then testified that she gave J.L. anatomically correct dolls so that she could demonstrate specifically what she meant when she described what happened to her. Id. at 107. With respect to the dolls, Ms. Miele testified:

A. Yes. Anatomically correct dolls, we use cloth dolls in our office and they are equipped with all the body parts, the genitalia. So that a naked male doll has a penis and testicles, the naked female has breasts and vaginal and oral openings. So that children can use these when its difficult for them to use specific words or talk about things that have happened. We use the dolls to help the children in an interview.

Id. at 107.

Ms. Miele was then asked whether J.L.’s use of the dolls was consistent with her oral statement. Ms. Miele testified that it was consistent. Id. at 108. She testified that after the interview she contacted the District Attorney’s Office and the State Police. She then determined that it would not be safe for J.L. to return to her parents’ home. Id. at 110. Children and Youth Services then took custody of J.L. and she was placed in foster care that night. Id. Ms. Miele testified that on that same evening, Mrs. Loner and Mrs. Loner’s mother-in-law came to the CYS office where she explained to them that she believed J.L.’s statements and accordingly had placed her in foster care until the legal work was completed. Id. at 110.

Relying on Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); and Comonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988), the majority concludes that Ms. Miele’s testimony impermissibly infringed upon the jury’s function of assessing the victim’s credibility. I, however, hesitate to conclude, as did the majority, that this case fits squarely within the parameters of the decisions rendered by our Supreme Court in these cases. In Seese, a pediatrician, was called by the prosecution as an expert on the sexual abuse of children. She testified that, based upon her own experience, young children usually do not fabricate stories of sexual abuse because they do not have sexual knowledge sufficient to supply details regarding sexual encounters. 512 Pa. at 442, 517 A.2d at 921. The Supreme Court held that:

[T]he question of whether a witness is testifying in a truthful manner is one that must be answered in reliance upon inferences drawn from the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as upon observations of the demeanor and character of the witness.

Id., 512 Pa. at 443, 517 A.2d at 922.

In Seese, the Court concluded that this direct attempt to establish the victim’s credibility was improperly admitted.

Similarly, in Davis, after the child-victim testified, the Commonwealth introduced the testimony of a clinical child psychologist who was an expert in the treatment of child sexual abuse. The expert testified that “children who have not been involved in sexual experiences typically do not fantasize about sexual experiences.” 518 Pa. at 80, 541 A.2d at 316. The Supreme Court held that the expert assessment of the truthfulness of the class of people of which the particular witness is a member is inadmissible.

In Gallagher, the Commonwealth presented the testimony of an expert who explained how the phobias associated with “rape trauma syndrome” affect a victim’s ability to identify the attacker immediately after an assault. In an effort to explain the victim’s inability to identify the defendant until four years later, the expert testified that she believed the victim suffered from rape trauma syndrome. 519 Pa. at 293, 547 A.2d at 356-57. Carefully examining the “crux” of the expert’s testimony, the Supreme Court concluded that the testimony was introduced “for the sole purpose of shoring up the credibility of the victim on the crucial issue of identification,” Id., 519 Pa. at 294, 547 A.2d at 357, and therefore, improperly enhanced the victim’s credibility in the eyes of the jury.

Examining the “crux” of Ms. Miele’s testimony, I do not find, as did the majority, that the sole purpose of offering her testimony was to “bolster the veracity” of the victim. Children and Youth Services has a statutory duty to investigate reports of abuse. See 23 Pa.C.S. § 6368. Ms. Miele, a CYS caseworker, was called to explain her role in that investigation. Not only does the Child Protection Act contemplate that CYS would testify in criminal proceedings, see 23 Pa.C.S. §§ 6381(c), 6340(a)(5), but the caseworker responsible for the child has the duty to explain to the parent the reasons for the temporary detention of the child. When Ms. Miele testified that she explained to Mrs. Loner that the reason she placed J.L. in foster care was because she believed J.L.’s statements, she was merely explaining, pursuant to § 6315(f), in laymen’s language that she had found probable cause that abuse had taken place.

The scope of Ms. Miele’s testimony did not go beyond that which was necessary to explain her method of investigation. She did not attempt to explain, legitimize or justify any conduct, behavior or statement of the victim, nor was her explanation that she believed J.L. directed to the jury. Her testimony provided no more support to the victim’s credibility than the fact that Loner was in court on the charges of incest and sexual abuse. Had Ms. Miele not reached the conclusion that she reached after conducting the interview with J.L., no charges would have been brought against Loner. The content of Ms. Miele’s testimony was nothing more than her recounting of the chronology of events which led to the charges initiated against Loner. Ms. Miele’s use of the words “consistent” and “believe”, when read in the context of her entire testimony, cannot be perceived to have usurped the truth determining function of the jury. Accordingly, I dissent.

      . Appellant also questions: Whether the trial court erred in permitting the Commonwealth to introduce the testimony of a registered nurse and a physician regarding the physical examination of the victim, and whether the trial court erred in permitting the Commonwealth to present testimony regarding statements made by appellant to a state trooper during the investigation. We do not reach these issues on their merits due to our resolution of appellant’s first allegation of error.

      . Ms. Miele testified that she had undergone specialized training in the area of interviewing and working with child-victims of abuse. Trial Transcript, p. 102.


text:
    609 A.2d 1381
    Darlene J. YOUNG, Appellant, v. Randy Willard MUTHERSBAUGH, Appellee.
    Superior Court of Pennsylvania.
    Submitted Jan. 21, 1992.
    Filed June 30, 1992.

      Robert F. Young, Harrisburg, for appellant.
    John R. Miller, III, Bellefonte, for appellee.
    Before DEL SOLE, HUDOCK and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from an order modifying payments made by Appellee-father to Appellant-mother in support of their two children. Appellant assigns as error the court’s determination of Appellee’s income, the incorrect application of the support guidelines and the failure to make the order retroactive. We vacate the order of the trial court and remand the case for proceedings consistent with this opinion.

Darlene Young and Randy Muthersbaugh were formerly married. Two children were born before the parties divorced in 1985. Both parties have remarried and Appellee has a child with his present wife and a child born prior to his marriage to the Appellant for which he pays support in the amount of $125.00 per month.

By a 1986 order, Mr. Muthersbaugh was directed to pay $235.00 per month to Appellant for the support of their two sons. On July 5, 1990, Appellant filed a Petition to Modify the Order of Support. The court, following the findings of a Domestic Relations Officer, entered a recommended order directing the Appellee to pay $330.00 per month. Appellant filed a request for a hearing de novo. The hearing, from which this appeal follows, resulted in affirmance of the recommended order.

The pre-guideline standard of review of a support order is set forth in Straub v. Tyahla, 274 Pa.Super. 411, 418 A.2d 472 (1980), where we held that “the trial court possesses wide discretion as to the proper amount of support payments and, unless surrounding circumstances suggest the court abused its discretion, its judgment will not be disturbed.” Id., 274 Pa.Superior Ct. at 413, 418 A.2d at 473. However, with the enactment of the guidelines, the trial court’s decisional process has been restructured and so too has the review process. In guideline cases, we first look to determine if the court correctly computed the parties’ incomes. We must next determine if the correct guideline amount was selected. Also, in cases where a trial court is asked to considered a departure from the guidelines based upon the unique needs of either the child or the obligor parent, we must examine the court’s reasons for ordering departure or for refusing to take such action. If there is no error we then affirm. Within this framework we will examine Appellant’s claims.

Appellant raises three arguments dealing with the trial court’s determination of Appellee’s income. First, she alleges that Appellee earns more than the claimed weekly amount. Appellee is employed full-time at Murata Erie N.A. and supplements that income by working part-time cleaning a doctor’s office. Appellee recently received a raise in gross salary to $473.00 per week. The second job provides an additional $26.00 every two weeks. Although a facial review of Appellee’s pay stubs seems to present a discrepancy, we must defer to the trial court’s resolution of the issue based on testimony at the hearing. Sufficient evidence is present in the record to support the findings of the trial court in this regard. In addition to the testimony, there are two letters from Appellee’s respective employers regarding his pay and two pay stubs from each job which tend to support the finding. Therefore, we hold that these findings were not error.

Second, Appellant argues in her brief that the reduction in pay from the part-time job should be ignored by the trial court. It is true that “[mjonthly gross income [from which net income is derived] is ordinarily based upon at least a six-month average of all of a parties income.” Pa.R.Civ.P. 1910.16-5(b). (Emphasis added). However, to ignore a reduction in the obligor’s income which occurred through no fault of his own, would work an injustice to Appellee. If we were to ignore the reduction in income from the part-time job, the recent raise from the full-time employer would also have to be disregarded. Rather, we hold that sufficient evidence exists in the record to support the findings of the trial court.

Finally, Appellant argues that failure to add the Appellee’s income tax return into his net income was an abuse of discretion. Appellee testified at the hearing that he purposely claimed no dependants for federal income tax purposes and that he receives a refund annually. In Curtis v. Curtis, 326 Pa.Super. 40, 473 A.2d 597 (1984), this court held that “[w]e could not permit an individual to overpay his taxes all year, and then to exclude the amount of his overpayment from calculation of that individual’s income. To do so works an injustice, especially here, where Appellee testified that he has a history of receiving refunds.” Id., 326 Pa.Superior Ct. at 47, 473 A.2d at 601. The rule is well settled that “steps taken to reduce income for the purpose of avoiding or decreasing support are ineffective insofar as diminishment of the obligation is concerned.” Coffey v. Coffey, 394 Pa.Super. 194, 200, 575 A.2d 587, 589 (1990). Therefore, this deliberate attempt to avoid recognition of income should have been addressed by the court below. Upon remand, the trial court should add the tax refund to Appellee’s net income.

Next, we must address Appellant’s contention that the guidelines were misapplied. The trial court calculated its order pursuant to the guideline grid for “Number of Children Equals 4” based on the fact that the instant case presents a multiple family situation. Admittedly, Appellee has an obligation to support all four of his children. However, the rule that governs the application of the guidelines states that:

The support guidelines set forth the amount of support which a spouse or parent should pay on the basis of both parties’ monthly incomes and the number of persons being supported.

Pa.R.Civ.P. 1910.16-5(a). (Emphasis added).

The support guideline grids are essentially a matrix. One axis plots the obligor’s monthly net income and the other plots the income of the obligee. By using the grid with “Number of Children Equals 4,” the trial court assumes that the father owes support for the other two children. The court must also assume that the mothers of the other children have no monthly net income. We think that the court has assumed too much. For these reasons, we hold that the application of the grid for “Number of Children Equals 4” was incorrect.

First, it must be stressed that “the support guidelines are a starting point only.” Pa.R.Civ.P. 1910.16-5(a). The rules provide for a deviation of ten percent or less from the guideline amount without explanation. Pa.R.Civ.P. 1910.-16-4(a). Any deviation that amounts to more than ten percent must be supported by specific reasons. Pa.R.Civ.P. 1910.16-4(b). It is the latter category which may ultimately govern this case.

The court must apply the guideline grid for “Number of Children Equals 2” to determine an estimated appropriate amount of support. The court is then free to consider any relevant factors which it perceives as a special need or obligation of the parties. The rules provide for an inexhaustive list of potential factors including “other support obligations of the parties.” Pa.R.Civ.P. 1910.16-5(a)(2).

Because this court can envision a variety of multiple family situations involving “other support obligations”, the obligor (Appellee-father in this case) must bear the burden of proving that the other obligations exist, and are reasonable. By placing this burden on the obligor, we believe that the purposes of the guidelines will be met. Upon such a finding, the trial court is then free to make a rationally related adjustment to the guideline amount pursuant to Pa.R.Civ.P. 1910.16-4(b).

Appellant argues that the trial court erred by failing to provide an “on the record” calculation of either the Melzer formula or the guideline amount. Because the trial court is likely to face the issue on remand, we direct its attention to this court’s decision in Ball v. Minnick, 414 Pa.Super. 242, 606 A.2d 1181 (1992). In Ball this court sat en banc to determine whether the trial court’s deviation from the guideline amount was an abuse of discretion. For cases which fall within the guidelines, a majority of the members of the en banc panel interpreted the guidelines to be the presumptive means for calculating a support award, replacing the need to conduct a Melzer analysis. Because it is undisputed that the guidelines apply to this case, upon remand the trial court is directed to determine an award based upon the guidelines that is in accordance with our previous discussion. Following Ball, a Melzer analysis is no longer necessary or required in guideline cases and any cases previously decided that permit a Melzer analysis in a guidelines case have been overruled. Trial courts should depart above the guidelines only when unique needs of the child are involved. Further, departures below the guidelines are permitted only when the obligor can establish unique financial needs.

The trial court failed to make its order retroactive. The rules specifically state that “an order of support shall be effective from the date of the filing of the complaint unless the order specifies otherwise." Pa.R.Civ.P. 1910.-17(a). This court has held that the failure to make the award retroactive is reversible error absent justification for such a ruling. Shovlin v. Shovlin, 318 Pa.Super. 516, 465 A.2d 673 (1983). See also Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (1985). (Court favors the policy of retroactive support orders). Therefore, on remand, the trial court should determine if the order is to be retroactive to the date the modification was first sought and if the trial court specifically holds otherwise it must set forth its reasons on the record.

We vacate the order of the trial court and remand the case for proceedings consistent with this opinion.

HUDOCK, J., concurs in the result.

      . Net monthly income is defined by Pa.R.Civ.P. 1910.16-5(b).

      . Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).


author: OLSZEWSKI, Judge:

text:
    609 A.2d 1384
    ESTATE of Carolyn J. HAERTSCH, an Alleged Incompetent. Appeal of Carolyn J. HAERTSCH.
    Superior Court of Pennsylvania.
    Submitted Feb. 6, 1992.
    Filed July 6, 1992.

      Caryl A. Oberman, Warminster, for appellant.
    Bernadette Haertsch, pro se.
    John G. Younglove, Hatboro, for Raymond Haertsch, participating party.
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal of an order of the Court of Common Pleas of Montgomery County dated February 7,1991, which declared appellant, Carolyn J. Haertsch, incompetent. The order further appointed both of her parents co-guardians and established a schedule of custody and visitation. We find that the lower court did not apply the proper standard and that the evidence in the lower court failed to establish appellant incompetent. The order of the lower court is reversed and vacated. A discussion of the case follows.

Appellant is a twenty-three-year-old individual with Downs Syndrome. Appellant suffers from a degree of mental retardation, but has apparently been able to maintain a job and pursue many of her daily needs. Appellant’s parents, Raymond and Bernadette Haertsch, were separated and subsequently divorced in 1975. Appellant lived with her father until October of 1989, when for some reason she went to her mother’s home and did not return. During 1989 both parents filed petitions to have their daughter declared incompetent and themselves declared guardian. The court appointed both parents as co-guardians and established a schedule of custody for appellant. The custody schedule involved spending half the year living with one parent and half the year with the other parent. This timely appeal followed.

Appellant presents three issues for our consideration:

1. Did the lower court apply an erroneous standard in determining that Carolyn Haertsch is incompetent and in need of guardians of her estate and person?
2. Was the evidence sufficient to support the lower court’s finding that Carolyn Haertsch is incompetent and in need of guardians of her estate and person?
3. Did the court below violate Carolyn Haertsch’s due process rights under the United States Constitution by failing to appoint counsel or a guardian ad litem to represent her in the incompetency and guardianship proceeding?

Brief of appellant at 3. Since we find the lower court employed an erroneous standard and that the evidence presented below was insufficient to support a finding of incompetency, we reverse and vacate the order of the lower court.

When reviewing a competency determination, the standard of review is well séttled. In regard to factual determinations, we recognize that the lower court had the opportunity to hear and observe the witnesses. We will not substitute our judgment for that of the lower court absent a clear abuse of discretion, “even though we, had we been sitting in judgment below, might have reached a contrary result, yet if the evidence is sufficient in quality and quantity to sustain the finding of incompetency such a finding should be sustained.” In re Myers’ Estate, 395 Pa. 459, 460, 150 A.2d 525, 526 (1959) (citations omitted). The statute which controls the determination of incompetency provides:

An incompetent is defined as follows:

a person who, because of infirmities of old age, mental illness, mental deficiency or retardation, drug addiction or inebriety:
(1) is unable to manage his property, or is liable to dissipate it or become the victim of designing persons; or
(2) lacks sufficient capacity to make or communicate responsible decisions concerning his person.

20 Pa.C.S.A. § 5501. A statute of this nature places a great power in the court. The court has the power to place total control of a person’s affairs in the hands of another. This great power creates the opportunity for great abuse. Myers’ Estate, 395 Pa. at 460, 150 A.2d at 526. “Mental capacity and competency are to be presumed and before any person shall be deprived of the right to handle his or her own property and manage his or her affairs there must be clear and convincing proof of mental incompetency and such proof must be preponderating.” Id.

We have examined the evidence and the lower court opinion. We find that the lower court failed to apply the proper standard required under the law. Further, we find the evidence was not sufficient to establish mental incompetency.

A case to declare an adult individual mentally incompetent is not equivalent to a case to determine custody of a minor child. The question in a custody case is what custody arrangement will serve the best interests of the child. In a case to declare an adult individual an incompetent, the question is whether the alleged incompetent is indeed incompetent. With a child there is not a question of whether the child’s custody must be determined. Under the law it is presumed that the child’s custody must be set and, therefore, the only question is what custody arrangement will serve the best interests of the child. The case of an adult differs greatly. The adult must first be determined to be incompetent, before any determination as to what arrangement will best serve the needs of the alleged incompetent.

The trial court in this case presumed that appellant was incompetent. Trial court opinion at 3. The trial court did not apply the above standards and determine that appellant was incompetent. Rather, a review of the trial court opinion reveals immediately that the court assumed appellant was incompetent and went on to decide what it believed to be an appropriate custody arrangement. Although appellant’s mother and father had each filed a petition to have her declared incompetent, the court abused its discretion by accepting this as an acquiescence that appellant was incompetent. Appellant may very well have wished to contest whether or not she was incompetent. Since the lower court failed to apply the appropriate standard, we find that the court committed a clear abuse of discretion.

Appellant’s second argument is that there was insufficient evidence presented at the trial of this matter to establish her incompetent. We agree with appellant. The evidence presented at the trial of this matter was largely related to whether appellant would do best living with her mother or her father. The entire trial court opinion is related to what living arrangement would be best for appellant. These matters are irrelevant until there has been a proper adjudication of incompetency. Our review of the record indicates that it is replete with evidence of how appellant was doing when living with each of her parents, but is lacking evidence of whether appellant is incompetent under the statutory definition. Further, all of the evidence of appellant’s abilities indicates that she is not incompetent. In this situation, we feel we are required to reverse and vacate the decision of the lower court.

Appellant’s third argument is that the trial court violated her due process rights under the United States Constitution by failing to appoint her counsel or a guardian ad litem for the trial of this matter. Since this case has been decided on a non-constitutional basis, we will not reach this constitutional issue. Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981).

For the foregoing reasons, the order of the trial court is reversed and vacated.

      . We note here that no post-trial motions were filed in the lower court. We feel, however, that the appeal was properly taken. The lower court specifically provided in its order that the order was not subject to post-trial motions. Further, appellant was not represented by counsel in the lower court. We believe that in this situation the failure to file exceptions is excused. We feel that in this regard appellant is correct to refer this Court to Storti v. Minnesota Mutual Life, 331 Pa.Super. 26, 479 A.2d 1061 (1984).


author: PER CURIAM:

text:
    609 A.2d 1387
    COMMONWEALTH of Pennsylvania, Appellee, v. Marlin HADDOCK, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Albert BARNABE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 2, 1992.
    Filed July 8, 1992.

      G. Scott Gardner, Williamsport, for appellants.
    Carol J. Sherman, Asst. Dist. Atty., Philadelphia, for Com., appellee (at 2967).
    Robert B. Sacavage, Dist. Atty., Mt. Carmel, for Com., appellee (at 2968).
    Before CAVANAUGH, DEL SOLE and BECK, JJ.
   OPINION

PER CURIAM:

These two appeals raise common issues for our consideration.

Haddock was convicted by a jury in Northumberland County on August 29, 1991, of multiple count drug charges and received an aggregate sentence of IV2 to 6 years which he is presently serving.

On August 15, 1991, Barnabe was convicted of drug charges in the same county and given a 1 to 2 year sentence which he is now serving.

In each case the appellant sought unsuccessfully at trial to cross-examine the prosecuting police officer, Dean Christos, and a confidential informant, Daryl Philbin, and to submit evidence concerning a nol pros of criminal charges in a Lehigh County case involving charges against Richard Lippay. The Lehigh County case involved the same prosecuting personages, Christos and Philbin. We agree with appellants that, based upon the authority of Commonwealth v. Shands, 338 Pa.Super. 296, 487 A.2d 973, the court erred in not permitting appellants to pursue questioning concerning this matter and we reverse the judgment of sentence and award a new trial in each of the cases before us. We further find that it was error not to permit examination of the witness concerning other cases where there was a failed prosecution involving witnesses Christos and Philbin. These cases include the prosecution of Kuzo, Yano and Lippay. As to the Haddock case, we find that the court should permit evidence as to the actual ownership and date of issue of Pennsylvania registration plate number PNB-326.

We have received separate bail applications in each of these cases. We believe the applications for bail have merit and remand the applications to the trial court in order to set the amount and terms of bails which should be granted until the time of trial or other disposition of the case.

Judgment of sentence reversed. New trials awarded. Remanded for bail hearing. Jurisdiction relinquished.

      . The same result has recently been reached in another case involving Christos and Philbin in a Northumberland County conviction. Commonwealth v. Miller, — Pa.Super.-, 612 A.2d 534 (1992) (Memorandum Opinion).