source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    655 A.2d 549
    James I. AMMON, as assignee of Kurt R. Schussler and Kurt R. Schussler, in his own right v. Stephen P. McCLOSKEY, Esquire, Phillips and Faldowski and Erie Insurance Group. Appeal of Stephen P. McCLOSKEY, Esquire, Phillips and Faldowski. James I. AMMON, as assignee of Kurt R. Schussler and Kurt R. Schussler, in his own right v. Stephen P. McCLOSKEY, Esquire, Phillips and Faldowski and Erie Insurance Group. Appeal of James I. AMMON as assignee of Kurt R. Schussler.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1994.
    Filed Jan. 10, 1995.
    Reargument Denied March 21, 1995.

      Vincent J. Grogan, Pittsburgh, for Stephen P. McCloskey, Phillips and Faldowski.
    Mark F. McKenna, Pittsburgh, for James I. Ammon.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

This is a complex action for legal malpractice in which the trial court, following trial without jury, found that defense counsel in the underlying, prior action had been negligent by waiving a defense of release. As a result of this negligence, a judgment in the amount of $222,000.60 had been entered against the client. Therefore, the court in the malpractice action returned a verdict in the amount of $222,000.60 in favor of the client’s assignee, who had been the plaintiff in the underlying action. On appeal, after post-trial motions were denied, the lawyer-defendant argues that (1) the plaintiffassignee failed to prove that the defendant-client and assignor in the underlying action had sustained any economic loss as a result of his alleged negligence; and (2) the trial court erred in ruling that principles of collateral estoppel prevented the lawyer-defendant from challenging a statement by the trial court in the underlying action that counsel had failed to raise the existence of the release. Our consideration of these and other issues raised by the parties via cross-appeals requires that we unravel the complicated and complex history of this litigation, which seems to have acquired a life of its own.

On April 18, 1980, Kurt Schussler and James Ammon were involved in an automobile accident in Washington County. The vehicle being driven by Schussler, in which Ammon was a passenger, collided with a vehicle owned by Mobay Chemical Corp. and parked at Arnold Pontiac. On May 22, 1981, Ammon and his parents settled their claims against Schussler for $14,000.00 and executed a release which discharged Schussler, his father, and Erie Insurance Exchange, the liability carrier for the Schussler vehicle.

On July 17, 1982, Ammon filed a complaint against Mobay Chemical and Arnold Pontiac. In that action, Schussler was subsequently joined as an additional defendant. Schussler was then represented by the law firm of Phillips and Faldowski, who assigned responsibility for the case to Stephen P. McCloskey, Esquire. An answer was filed on behalf of Schussler in which all liability was denied and to which was attached a copy of the release which Ammon had executed in favor of Schussler.

Prior to trial of the underlying action in February, 1984, an in-chambers settlement conference was held by the trial judge and counsel for the several parties. At that time, according to McCloskey, the Ammon release of Schussler was discussed, and it was decided that it would not be introduced during trial but would be given effect after a verdict had been returned. No record was made of this discussion.

The release, therefore, was not introduced as evidence during the trial, and the jury returned a verdict in favor of Ammon and against Schussler and Arnold Pontiac in the amount- of $325,000.00. The same jury found Arnold Pontiac's negligence to be 40% and Schussler’s negligence to be 60%. After the verdict had been returned, Schussler’s lawyer allegedly moved to mold the verdict to reflect the release for which Schussler had previously paid $14,000.00. When counsel for Ammon objected, the trial court took it under advisement. On behalf of Schussler, McCloskey also filed a post-trial motion raising, inter alia, the defense of the release.

A court en banc subsequently reduced the amount of the verdict to $60,000.00, but it did not decide the effect of the release. On appeal, the Superior Court vacated the order of the trial court en banc and remanded the case to the trial court to consider and determine the effect of the release which had been executed by Ammon. See: Ammon v. Arnold, Pontiac-GMC, 354 Pa.Super. 622, 508 A.2d 337 (1986) (memorandum decision). The trial court, without further hearing, filed an opinion and order holding that the defense of release had been abandoned because the release had not been asserted at trial. Judgment was entered on the verdict, as reduced by the trial court en banc, in the amount of $60,000.00. On appeal, a panel of the Superior Court affirmed the determination by the trial court that the defense of release had been waived. The same panel, however, reinstated the jury’s verdict of $325,000.00. See: Ammon v. Arnold Pontiac-GMC, Inc., 361 Pa.Super. 409, 522 A.2d 647 (1987).

In the meantime, Arnold Pontiac had settled with Ammon for $75,000.00 and had taken a joint tortfeasors’ release. Subsequent to the Superior Court’s decision, Schussler discharged McCloskey and hired new counsel, who negotiated a settlement between Ammon and Schussler. This agreement provided in part as follows:

10. Schussler hereby assigns, transfers, and conveys to Ammon, his successors and assigns, any and all of his right, title and interest in and to the right to recover, receive or have paid the aforementioned verdict amount awarded to Ammon against Schussler (including any delay damages, interests, fees and/or costs accruing thereto) from:
a) Erie Insurance Group, and/or
b) Phillips & Faldowski; and/or
c) Stephen P. McCloskey; and/or
d) any insurer of the foregoing; and/or
e) any other party except for the parties to this Agreement and their families.
11. This assignment does not include nor shall it constitute any assignment of cause(s) of action against any of the foregoing for:
i) damages sustained by Schussler for emotional distress; and/or
ii) other economic damages suffered by Schussler; and/or
iii) punitive damages; and/or
iv) the attorney fees and expenses of Schussler’s independent counsel, McCune and Vreeland.

Simultaneously, Ammon and Schussler entered into a “Covenant Not to Sue and Covenant Not to Execute” wherein Ammon agreed, promised and covenanted not to “... execute, seize, levy, encumber, garnish, replevin or pursue in any way any of the past, present or future assets or income of KURT R. SCHUSSLER or his family, except for Schussler’s rights against certain parties as set forth in the Settlement Agreement.”

Ammon, as assignee of Schussler, then filed in Allegheny County an action against McCloskey, contending that McCloskey had been negligent in failing to introduce the release of Schussler by Ammon during the underlying action by Ammon to recover damages for his injuries. If it had been offered, it is contended, it would have been a complete defense. McCloskey defended on grounds that the release had been asserted during the unrecorded conference in the trial judge’s chambers before the start of trial, and that it had then been agreed that the release should be raised and its effect determined following a return of the verdict by the jury. The trial court held, however, that McCloskey was collaterally estopped from denying that the defense of release had been abandoned by a failure to assert it. This, the court held, had been the result of negligence. Therefore, the court allowed Ammon to recover from McCloskey the amount of the judgment which had been entered against Schussler in the prior action.

A claim for damages based on legal malpractice is assignable. Hedlund Mfg. Co., Inc. v. Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357 (1988). Such a claim does not involve personal injury and is more akin to a property right. Id. at 526, 539 A.2d at 359. Moreover, the assignment of such a claim does not violate public policy in Pennsylvania. Id. Because the Supreme Court painted with broad strokes in the Hedlund Mfg. Co. case, it appears that that Court also would find no violation of public policy where, as here, the assignee is the plaintiff who won a verdict against the assignor by virtue of the lawyer’s alleged negligence in failing to prove a release by which the assignee had released the assignor from all claims. In an action by the assignee against the lawyer, however, it is clear that the assignee stands in the shoes of the assignor and does not pursue the cause of action in the assignee’s own right. Id. See: Gray v. Nationwide Mutual Ins. Co., 422 Pa. 500, 503, 223 A.2d 8, 9 (1966).

In a malpractice action based upon a lawyer’s representation of a client in a civil matter, a plaintiff must establish the following three elements in order to recover: (1) the employment of the lawyer; (2) the failure of the lawyer to exercise ordinary skill and knowledge; and (3) that such failure was the proximate cause of damage to the plaintiff. Bailey v. Tucker, 533 Pa. 237, 246, 621 A.2d 108, 112 (1993); Composition Roofers Local 30/30B v. Katz, 398 Pa.Super. 564, 568, 581 A.2d 607, 609 (1990); Schenkel v. Monheit, 266 Pa.Super. 396, 399, 405 A.2d 493, 494 (1979). “In any cause of action for malpractice, some harm must be shown to have occurred to the [client-assignor].” Composition Roofers Local 30/30B v. Katz, supra 398 Pa.Super. 564, 581 A.2d 607. See: Guy v. Liederbach, 501 Pa. 47, 56, 459 A.2d 744, 749 (1983). Thus, in Schenkel v. Monheit, supra 266 Pa.Super. 396, 405 A.2d 493, the Superior Court said:

“The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm — not yet realized — does not suffice to create a cause of action for negligence. Hence, until the client suffers appreciable harm as a consequence of his attorney’s negligence, the client cannot establish a cause of action for malpractice.” Budd v. Nixen, 6 Cal.3d 195, 98 Cal.Rptr. 849, 852 [-853], 491 P.2d 433, 436-137 (1971).

Id., 266 Pa.Super. at 399, 405 A.2d at 494 (footnote omitted).

In the instant case, the plaintiff-assignee failed to prove that his assignor had sustained any actual loss other than that a judgment for $222,000.60 had been entered against him in the prior, underlying action. Not only had there been no payment of the judgment by the assignor but the assignee, who was also the plaintiff in the prior, underlying action, had agreed, as part of the consideration for the assignment of the assignor’s cause of action against his lawyer, that he would not enforce the judgment against the assignor’s income or assets. However, the trial court held that the judgment entered against the client-assignor as a result of his lawyer’s negligence constituted proof of actual damages and allowed the plaintiff-assignee to recover $220,000.60. It is argued on appeal that this constituted error.

This issue has not previously been before the appellate courts of this Commonwealth. Those courts of other jurisdictions which have considered the same issue have rejected the approach adopted by the trial court. In Allied Productions, Inc. v. Duesterdick, 217 Va. 763, 232 S.E.2d 774 (1977), the Supreme Court of Virginia held that when a client has suffered a judgment for money damages as a result of his attorney’s negligence, the judgment constitutes actual damages recoverable only to the extent that the judgment has been paid. In Thurston v. Continental Casualty Co., 567 A.2d 922 (Me.1989), the Supreme Court of Maine had before it a fact pattern similar to that in the instant case. There, the plaintiff was the assignee of a legal malpractice claim against lawyers who had defended the assignor in a products liability action. The plaintiff-assignee had also been the plaintiff in the prior products liability-action and had recovered a verdict against the assignor for an amount in excess of the assignor’s policy limits, allegedly because of the lawyers’ negligence. The trial court entered summary judgment in favor of the lawyers because the excess judgment had not been paid. The Supreme Court of Maine reversed. It held that the amount of the excess judgment was not the measure of damages which the assignee could recover. Still, the lawyers were not entitled to summary judgment, for inability to collect the judgment, if such was the case, did not necessarily foreclose other types of economic harm. The court said:

We conclude that even if the defendants’ proof has established that 3K was insolvent at the time of the excess judgment, that fact does not foreclose damages for the defendants’ alleged malpractice or failure to defend or settle. It may be that 3K has not been damaged in the full amount of the excess judgment, for the proof may show that no such judgment could ever have been recovered against 3K. There are other elements of damages, however — for example, injury to credit rating, injury to reputation (3K may be able to prove that its name’s good will possessed a value that would have been worth transferring to another had it not been for the excess judgment), and expenses incurred in dealing with the existence of the judgment and settling the claim. The point is that the choice is not between collecting the entire excess judgment and no damages at all.

Id. at 924 (footnote omitted).

Although the appellate courts of Pennsylvania have not considered this issue in the context of an action for legal malpractice, the Supreme Court has considered the same issue in the context of an assignee’s action against an insurer for breach of its obligation to represent in good faith the rights of its insured. In Gray v. Nationwide Mutual Ins. Co., supra, the Court held that it was not necessary for the insured to pay the judgment in excess of policy limits in order to maintain an action against the insurer. The Court reasoned, inter alia, that “the fact of entry of the judgment itself against the insured constitutes a real damage to him because of the potential harm to his credit rating.” Id., 422 Pa. at 506, 223 A.2d at 10. See also: Barr v. General Accident Group Ins., 360 Pa.Super. 334, 340, 520 A.2d 485, 488 (1987), allocatur denied, 517 Pa. 602, 536 A.2d 1327 (1987). The Court also observed that a contrary rule would permit the insurer to be less responsive to its fiduciary duties where the insured was impecunious than where the insured was able to pay the excess judgment.

After careful consideration, we conclude that the ruling of the Supreme Court in Gray must also be applied where a lawyer’s negligence has proximately caused the entry of a judgment against the client. The lawyer occupies no less a fiduciary relationship to the client than an insurer occupies with respect to its insured, and the judgment entered against a client constitutes no less a real damage than the entry of a judgment against an insured.

We hold, therefore, that the trial court did not err when it required no further proof of economic harm than the entry of judgment against the client. However, we agree that the trial court erred when it held that the lawyer was collaterally estopped from showing that he had neither abandoned nor waived the defense of release in the prior, underlying action.

In the prior, underlying action, the effect of the release was never determined. Instead, it was held that Schussler’s defense of release had been abandoned and/or waived because it had not been asserted on the record during trial. In the malpractice action against the lawyer who had represented Schussler in the underlying action, the lawyer asserted that, in fact, he had raised the release as a defense. The trial court in the malpractice action refused to hear this defense. It held that the lawyer-defendant in the malpractice action was collaterally estopped to deny that he had failed to assert the release in the underlying action.

Collateral estoppel, sometimes referred to as issue preclusion, “operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally.in a court of competent jurisdiction from being relitigated in a subsequent suit.” Schultz v. Connelly, 378 Pa.Super. 98, 102 n. 4, 548 A.2d 294, 296 n. 4 (1988), quoting Day v. Volkswagen werk Aktiengesellschaft, 318 Pa.Super. 225, 236, 464 A.2d 1313, 1318 (1983). However, collateral estoppel is applicable only where: “(1) the issue decided in the prior action was identical with the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom the plea is asserted has had a full and fair opportunity to litigate the issue in question in a prior action.” Grant v. GAF Corp., 415 Pa.Super. 137, 149, 608 A.2d 1047, 1053 (1992), aff'd, Gasperin v. GAF Corp., 536 Pa. 429, 639 A.2d 1170 (1994). See: Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 546, 587 A.2d 1346, 1348 (1991), cert. denied, 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991); Safeguard Mutual Ins. Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975); Grossman v. Rosen, 424 Pa.Super. 463, 466, 623 A.2d 1, 2 (1993). “Privity” is a term which the courts have never been able to define satisfactorily. It is defined by Black’s Law Dictionary (5th ed. 1979) as “[mjutual or successive relationship to the same rights of property. In its broadest sense, ‘privity’ is defined as mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right.”

At issue in this appeal is whether the defendant lawyer was in privity with the client whom, allegedly, he failed to represent with reasonable care in the prior action. To state the question, however, is also to answer it. In the prior action, the lawyer was a professional representative, who owed complete allegiance to the client, but who had no personal interest in the rights being litigated. His interests were not the same as the client, and he was not in privity with him. Therefore, it cannot be said that the lawyer had a full and fair opportunity to litigate in the prior action the reasonableness or the effect of his conduct in such prior action.

Whether the defense of release was waived or abandoned has never been fully litigated against the lawyer. The defendant lawyer asserted in the malpractice action that the release had been raised informally during an off-the-record conference with the trial court in the prior, underlying action. It had then been agreed, it was alleged, that the effect of the release would be determined post-trial so as not to complicate unnecessarily the issues to be decided by the jury. Subsequently, however, the trial court held, and an appellate court affirmed, that thé record in the prior action had failed to contain any reference to the release. Insofar as the rights of the defendant Schussler were concerned, therefore, the defense of release was held to have been waived or abandoned. That determination, however, did not prevent the lawyer from defending his conduct fully when he was subsequently sued for legal malpractice. He was not collaterally estopped in that action from litigating fully both the reasonableness and legal effect of his conduct in the prior action. When the trial court held otherwise, it erred. This error requires that a new trial be granted.

Because the matter must be retried, we do not now decide whether the assignee is also entitled to recover interest from the date on which the judgment was entered against his assignor. We observe, however, that it was not the judgment which was assigned but merely an undetermined tort claim.

Reversed and remanded for a new trial. Jurisdiction is not retained meanwhile.

KELLY, J., concurs in the result.

      . The action had previously been commenced by praecipe for summons.

      . The court observed that Ammon had commenced an action in equity to reform the release so as to make it a joint tortfeasors' release rather than a general release. This equity action, however, has never been decided.


author: BROSKY, Judge.

text:
    655 A.2d 554
    COMMONWEALTH of Pennsylvania, Appellant, v. James L. WALTER.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1994.
    Filed Jan. 5, 1995.
    Reargument Denied March 10, 1995.

      John T. Robinson, Dist. Atty., Sellinsgrove, for Commonwealth, appellant. •
    Anne C. Shapiro, Public Defender, Middlesburg, for appellee.
    Before BECK, HUDOCK and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal by the Commonwealth from an order granting appellee’s motion to suppress certain evidence seized at his apartment. Appellant raises one issue for our consideration which, for purposes of our discussion, we phrase in the following manner: whether the acceptance of parole and signing of a “conditions of parole/reparole” form which includes a provision expressly consenting to the search of “my person, property and residence, without warrant by agents of the Pennsylvania Board of Probation and Parole,” satisfies the dictates of Commonwealth v. Pickron, 535 Pa. 241, 634 A.2d 1093 (1993), governing the search and seizure rights of parolees. We affirm.

Appellee became the subject of an investigation of two separate knifepoint robberies when his picture was picked from a photo array by the victims of those robberies. The robberies occurred on December 31, 1993, and January 3, 1994, one at a convenience store and the other at a motel located on the same roadway, at a time which appellee was under parole supervision having been released from prison in August of 1993.' Appellee’s parole officer, Michael Duda, was contacted by investigating officers in order to obtain more information regarding appellee. Duda indicated that if appellee was to be arrested he would like to accompany the officers as he believed he could calm appellee and prevent him from attempting to abscond. Appellee was in fact arrested on January 11, 1994, at the place of his employment by Trooper Groninger, who was investigating one of the robberies, and by Duda.

During the arrest, Officer Duda took appellee’s car and apartment keys to facilitate a search of both. Duda subsequently executed a search of both the car and the apartment, ostensibly to see if there was any evidence of a violation of appellee’s parole, namely possession of alcohol, drugs, drug paraphernalia or weapons. After the search, which did not produce any evidence of parole violations, Duda returned to the State Police Barracks at Selinsgrove where he was asked by a trooper if he had seen a red and black checked jacket or camouflage baseball hat while searching appellee’s apartment. These were items which the perpetrator of the robberies was reportedly wearing during their commission. Duda indicated that he had seen such items and a search warrant was obtained based upon Duda’s observations. Armed with the search warrant, a search was conducted of appellee’s apartment whereupon the jacket, cap and a knife were found and seized.

Appellee filed an omnibus pre-trial motion seeking suppression of three identifications, and suppression of the physical evidence seized at his apartment. The motion was denied as to two of the three identifications, granted as to one of the identifications and granted as to the seizure of physical evidence. This appeal followed.

We start our analysis of the present conflict by reviewing that which is not in controversy here, the premise that probationers and parolees do have a recognized Fourth Amendment right protecting them against “unreasonable searches and seizures.” Any doubt of this proposition was dispelled by our Supreme Court’s decision in the case of Commonwealth v. Pickron, 535 Pa. 241, 634 A,2d 1093 (1993). In Pickron our Supreme Court reviewed the Fourth Amendment rights of parolees and probationers and, after a dissertation of the relevant law and recent cases on the issue, announced its holding:

... that the Fourth Amendment prohibits the warrantless search of probationers or parolee’s residences based upon reasonable suspicion without the consent of the owner or without a statutory or regulatory framework governing the search.

Id. 634 A.2d at 1098. However, the Court stated just before its holding “we do not have before us a statutory framework nor an agreement by the defendants consenting to the search.” Id. It is this phrase which seemingly spawned the present controversy.

In the present case, the Commonwealth argued below, and argues now, that appellee consented to, or agreed to subject himself to, a warrantless search when he accepted parole because the parole form he signed, PBPP-11, contained a provision which states:

I expressly consent to the search of my person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole. Any items, in the possession of which constitutes a violation of parole/reparole shall be subject to seizure, and may be used as evidence in the parole revocation process.

The suppression court concluded that appellee did not consent to the search by virtue of this clause in the parole form. The question presented to us is whether a search based upon the signing of the standard parole form containing the consent provision just quoted is consistent with the principles outlined in Pickron.

We note initially that to allow searches solely on the basis of the above clause effectively negates the underlying premise of Pickron, that being that parolees and probationers have certain, albeit limited, Fourth Amendment rights. The essence of Fourth Amendment rights is the concept that individuals have an expectation of security in their person and things; that one will not be subjected to the intrusion of a search without sufficient justification. To allow a search of a parolee for ho reason other than that the parolee accepted parole, and in so doing signed a form authorizing a search for any or no reason, is tantamount to the parolee checking his or her Fourth Amendment rights at the door of the prison while leaving, for once out the door that right is effectively surrendered. Thus, while Pickron clearly recognized that a parolee has Fourth Amendment rights, such a right would be a sham if the above clause were used as justification for a search of a parolee’s person or residence. As a matter of course, those rights would be surrendered upon accepting parole and the parolee would be given no effective choice in the matter. We doubt that our Supreme Court would condone the circumventing of the principles of its decision by the simple expediency of forcing an onerous parole “agreement” upon a prospective parolee.

Additionally, we find that a search premised upon the paragraph in the parole form clearly violates the concepts discussed in Pickron. In Pickron, our Supreme Court, while expounding upon its holding, stated:

We [so hold] because we recognize that there are no safeguards to protect the limited fourth amendment rights of probationers and parolees if their supervision is left entirely to the discretion of individual parole officers. In the traditional fourth amendment case, the warrant requirement based upon probable cause and issued by a neutral and detached magistrate guarantees the protection of a citizen’s constitutional rights. Similarly, in the context of a probationer or parolee’s limited fourth amendment rights, some systemic procedural safeguards must be in place to guarantee those limited fourth amendment rights.

The consent paragraph in question provides none of the systemic procedural safeguards mentioned in Pickron. It sets forth no criteria for when a search can be conducted and does not provide any form of “neutral” review of the request to search. In short, it completely takes away those rights Pickron recognized. It should be noted that the Supreme Court’s holding in Pickron disallows even a search based upon “reasonable suspicion” without a warrant, consent or a statutory/regulatory framework in place. The clause in question would ostensibly allow, as it did here, a search even if there existed no evidence of a violation of parole. Thus, it would seem clearly insufficient from a “for cause” standpoint.

Lastly, we do not read the segments in Pickron which discuss validation of a search by agreement of the parolee to necessarily provide carte blanche approval of any and all such purported agreements. The last segment of the Court’s opinion states “[i]n the absence of any statutory or regulatory framework, or an agreement explicitly setting out the rights of the defendant and the authority of the state to supervise the defendant, we are constrained to conclude that the actions of these parole officers violated the fourth amendment.” Id., 634 A.2d at 1098. In discussing search consent agreements the Court adds the language “explicitly setting out the rights of the defendant.” When this phrase is considered in conjunction with the segment last quoted above, it strongly suggests that any agreement between the parolee and the state authorizing a warrantless search would have to provide similar protection of the parolee’s rights against intrusion that the warrant process serves. As noted above, the clause presently under scrutiny establishes no rights in the parolee, nor provides any protection of rights commonly associated with the Fourth Amendment. Thus, in our opinion, it conflicts with the Pickron decision.

Since we find the consent clause in question in conflict with our Supreme Court’s decision in Pickron, we agree with the suppression court that the search of appellee’s residence by Officer Duda was illegal. Thus, the subsequent search and seizure by the investigating officers was also tainted and the decision to suppress was correct. Consequently, we affirm the order appealed from.

Order affirmed.

      . The parole form in question is a standard form used statewide and parole is conditioned upon signing the form. Needless to say, there is no bargaining for terms of parole, nor is it likely that any prisoner is going to refuse parole simply because the terms are deemed unfavorable.

      . Indeed, the Court suggested as much in a Pickron footnote stating: "[tjhis is not to say that an agreement giving consent or a statute authorizing such searches would necessarily survive constitutional scrutiny. We are merely limiting this holding to these facts.” Pickron, 535 Pa. at 250, n. 6, 634 A.2d at 1098, n. 6.

      . We are not suggesting that the standards applied normally to Fourth Amendment procedures would be applicable to the parolee situation given that the cases state a parolee’s Fourth Amendment rights are "limited.” However, to the extent a parolee has even “limited” Fourth Amendment rights, it would seem necessary to satisfy the concepts behind the warrant system. Namely a threshold level of evidence implicating illegal activity or parole violations and review and approval of the search request by someone other than the individuals proposing the search.
      The United States Supreme Court, in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), upheld a search which was conducted pursuant to Regulations of the Wisconsin State Department of Health and Social Services. Those regulations allow a warrantless search when a probation officer has "reasonable grounds” to believe contraband was present and also has the permission of his supervisor to conduct a search. Thus, a "reasonable grounds to believe” standard and review by a supervisor would appear sufficient to satisfy the limited Fourth Amendment rights of the parolee.


author: KELLY, Judge:

text:
    655 A.2d 557
    COMMONWEALTH of Pennsylvania v. James WILSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1995.
    Filed Feb. 24, 1995.

      Erica H. Koisling, Asst. Public Defender, Doylestown, for appellant.
    T. Gary Gambardella, Asst. Dist. Atty., Doylestown, for Commonwealth, appellee.
    Before BECK, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

In this opinion, we are called upon to determine whether a suspect’s acts of twice alighting from a vehicle in a neighborhood known for a high degree of drug-related activity constitutes sufficient facts to justify a subsequent warrantless investigative stop of the vehicle by police under Terry v. Ohio. We hold that the facts as found by the suppression court do not support the conclusion that the police had a reasonable suspicion of criminal activity to warrant the investigative stop. Accordingly, we reverse the judgment of sentence entered by the trial court, and remand for proceedings consistent with this opinion.

This appeal involves a challenge to the suppression court’s order denying appellant’s motion to suppress evidence seized by police during an investigative stop of the motor vehicle that appellant occupied as a passenger. Accordingly, the facts of this case, as found by the suppression court, are as follows:

THE COURT: We will make the following findings: On or about April 16, 1993, Detective Timothy Carroll, as an officer and detective of Bensalem Township Police Department, Bucks County, Pennsylvania, was engaged in a narcotics and vice investigation and was engaged specifically in a BuxNet operation designed to locate Bucks County residents suspected to be engaged in the purchase of illegal drugs and paraphernalia in Philadelphia; that Detective Carroll, as an officer with the aforesaid department since April of 1977, has considerable experience in investigation of drug trafficking and has made numerous arrests and convictions.
That on the occasion of April 16, 1993, he proceeded into an area of known high drug activity, commonly identified as the Badlands, but specifically an area between Cambria and Somerset Streets on the 2800 block of North Hope Street; that during the course of his surveillance in the area in question, he not only observed suspicious behavior relating to suspected drug activity, but did in fact see and hear unnamed parties engaging in hawking of drugs and illegal drug paraphernalia; that on the date in question, Detective Carroll observed a 1982 Chevy Chevette operated by defendant Schrader and with defendant Wilson as a passenger enter into the area previously described; that the area described is a devastated, dilapidated neighborhood in which there are no commercial enterprises except that one makeshift auto repair center; that the detective observed passenger Wilson exit from ■ the vehicle for a few minutes and return to the vehicle; that activity occurred at the approximate intersection of A Street and Somerset Street.
The detective again saw the defendant Wilson exit the vehicle at the intersection of Cambria Street and North Hope Street, and did observe the vehicle driven by defendant Schrader drive around the block; that Detective Carroll lost visual contact with defendant Wilson for a short period of time, but in following the vehicle operated by Schrader, observed defendant Wilson reunite and return to the vehicle operated by defendant Schrader; that the period of time which elapsed from the exit and return to the vehicle by Wilson was measured in terms of a few minutes; that during the time that Detective Carroll was in the vicinity of North Hope Street, he actively observed various unnamed persons engaging in transactions or seeking to engage in transactions for the sale of illegal drugs and. paraphernalia; that the detective did not see a transaction between an unnamed person and defendant Wilson.

(N.T. 8/24/93 at 33-36).

The vehicle left the area and was followed by Detective Carroll as it headed north on Interstate 95. Detective Carroll radioed to a uniformed police cruiser assigned to the BuxNet detail and requested the officer to stop the vehicle when it entered Bucks County. (N.T. 8/24/93 at 15-17). After the car was stopped, Detective Carroll arrived, identified himself and advised the occupants of the stopped vehicle of the BuxNet operation and his observations of them in the Badlands. Detective Carroll then asked the occupants to surrender any controlled substance or paraphernalia. Appellant surrendered a syringe, and stated that he had done a bag [of heroin] already. Defendant Schrader turned over a packet of heroin and a bottle cap cooker. (N.T. 8/24/93 at 39-40). Appellant and co-defendant Schrader were then placed under arrest, and charged with possession of controlled substances and paraphernalia. Prior to trial, appellant filed a motion to suppress the evidence seized, which was denied following a suppression hearing.

Following a stipulated waiver trial, appellant was convicted of the aforementioned offenses. This timely appeal followed the entry of judgment of sentence.

Appellant raises the following issues for our review:

A. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S SUPPRESSION MOTION WHERE A VEHICLE WAS STOPPED BECAUSE WHILE APPELLANT WAS IN A HIGH DRUG ACTIVITY AREA, HE EXITED HIS COMPANION’S VEHICLE AND LEFT THE OFFICER’S VIEW FOR BRIEF PERIODS OF TIME ON TWO OCCASIONS AND DID NOT OUTWARDLY OR OBVIOUSLY DISPLAY A LEGITIMATE PURPOSE FOR BEING THERE?
B. WHETHER BY CONCLUDING AND TAKING INTO CONSIDERATION IN DENYING APPELLANT’S SUPPRESSION MOTION THAT THE APPELLANT DISPLAYED NO LEGITIMATE PURPOSE FOR BEING IN A HIGH DRUG ACTIVITY AREA, THE TRIAL COURT SHIFTED THE BURDEN OF PROOF TO THE APPELLANT, THEREBY VIOLATING RULE 323(h) OF THE PENNSYLVANIA RULES OF CRIMINAL PROCEDURE?

Appellant’s Brief at 4.

Our review of an order entered by the suppression court is governed by the following standards. We must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom. Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678 (1993). In reviewing the denial of a motion to suppress evidence, “we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Reddix, 355 Pa.Super. 514, 513 A.2d 1041 (1986). When the evidence supports the suppression court’s findings of fact on a motion to suppress, this Court may reverse only when the legal conclusions drawn from those facts are erroneous. Commonwealth v. Quiles, 422 Pa.Super. 153, 619 A.2d 291 (1993) (en banc). However, we are bound by the trial court’s findings of fact only to the extent that they are supported by the record. Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513 (1991).

Appellant asserts that the police did not have a reasonable suspicion of criminal activity in order to make a warrant-less stop of the motor vehicle in which he was a passenger. Specifically, appellant avers that the mere fact that he twice alighted from a vehicle while it was located in an area of known drug-related activity was insufficient to establish the requisite reasonable suspicion in the minds of police that he was presently involved in criminal activity. Therefore, appellant concludes that the fruits of the ensuing unlawful stop by police should have been suppressed, as they were the result of an unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments to the United States Constitution. We agree.

The Fourth Amendment, made applicable to the State by way of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643 [81 S.Ct. 1684, 6 L.Ed.2d 1081] (1961), guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Time and again, this Court has observed that searches and seizures “ ‘conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.’ ” Thompson v. Louisiana, 469 U.S. 17, 19-20 [105 S.Ct. 409, 410, 83 L.Ed.2d 246] (1984) (per curiam) (quoting Katz v. United States, 389 U.S. 347, 357 [88 S.Ct. 507, 514, 19 L.Ed.2d 576] (1967) (footnotes omitted)); Mincey v. Arizona, 437 U.S. 385, 390 [98 S.Ct. 2408, 2412, 57 L.Ed.2d 290] (1978); see also United States v. Place, 462 U.S. 696, 701 [103 S.Ct. 2637, 2641, 77 L.Ed.2d 110] (1983). One such exception was recognized in Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968), which held that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot” the officer may briefly stop the suspicious person and make “reasonable inquiries” aimed at confirming or dispelling his suspicions. Id., at 30 [88 S.Ct. at 1884-85]; see also Adams v. Williams, 407 U.S. 143, 145-146 [92 S.Ct. 1921, 1922-23, 32 L.Ed.2d 612] (1972).

Commonwealth v. Johnson, 429 Pa.Super. 158, 163-64, 631 A.2d 1335, 1338 (1993).

In reviewing whether reasonable suspicion (dr probable cause) exists, we must, of course, examine the totality of the circumstances to determine whether there exists a particularized and objective basis for suspecting an individual stopped of criminal activity.

Commonwealth v. Epps, 415 Pa.Super. 231, 233-34, 608 A.2d 1095, 1096 (1992) (citations omitted).

With these constitutional principles in mind, we turn to the findings and conclusions of the suppression court. The suppression court concluded that because appellant displayed no legitimate purpose for being in the neighborhood in question other than for the purchase of illegal drugs (N.T. 8/24/93 at 37), and because appellant did not show any other purpose for being present in a known high drug area, the police had “reasonable cause” or reasonable suspicion to stop the motor vehicle from which he twice exited while in the Badlands section of Philadelphia. (N.T. 8/24/94 at 36). We disagree.

An investigatory stop under Terry cannot, without more, rest solely on a finding that a person did not possess a “legitimate purpose” for being present in a particular neighborhood.' A suspect’s mere presence in an area known for high drug-related activity is not sufficient to create a reasonable suspicion in the minds of police in order to justify a warrantless investigative stop under Terry. See Commonwealth v. Kearney, 411 Pa.Super. 274, 278, 601 A.2d 346, 348 (1992); Commonwealth v. Martinez, supra; Commonwealth v. Espada, 364 Pa.Super. 604, 609, 528 A.2d 968, 970 (1987); Commonwealth v. Williams, 287 Pa.Super. 19, 28 n. 9, 429 A.2d 698, 703 n. 9 (1981). Rather, in light of all the circumstances, a police officer’s reasonable and articulable belief that criminal activity is afoot must be linked with his observation of suspicious or irregular behavior of the particular defendant stopped. Commonwealth v. Espada, supra at 609, 528 A.2d at 970. Stated conversely, a police officer’s observation of irregular behavior without a concurrent belief that crime is afoot renders an investigatory stop unreasonable. Id.

Instantly, the facts as found by the suppression court disclose that the police observed appellant twice exit the monitored vehicle in a block known for high drug activity. The record further reveals that in both instances police lost visual contact with appellant for several minutes.

Although Detective Carroll observed numerous unnamed persons “hawking” drugs or engaging in drug transactions, it remains uncontroverted that he never observed appellant do anything more than exit the vehicle and return to it. The police did not have any prior information that appellant would be possessing contraband before they set up surveillance in the area that day. The police did not observe appellant approach anyone, speak to anyone, or engage in any behavior evidencing a transaction or exchange that would lead a police officer to reasonably suspect that an illegal drug sale was taking place. Thus, the facts of record fail to establish a “particularized and objective basis” for suspecting that appellant was engaged in criminal activity.

Indeed, in Commonwealth v. Greber, 478 Pa. 63, 385 A.2d 1313 (1978), our Supreme Court affirmed a suppression ruling on more particularized facts favoring a Terry stop than in the instant case. In that case, undercover police officers were conducting surveillance of a bowling alley located in a high crime area. The police observed the defendants drive their vehicle into the parking lot of the bowling alley and hand a shopping bag to a juvenile who had been standing on the lot for some time, acting as though he was waiting for someone. Upon receiving the bag, the juvenile lifted it to his face and appeared to smell its contents. At this point, the police moved in and seized the bag and searched the vehicle, and found marijuana in both. The trial court suppressed the evidence on the basis that the police lacked probable cause to make a lawful arrest.

On appeal, the Commonwealth conceded that probable cause was absent, but argued that the police made a lawful investigative Terry stop. Our Supreme Court rejected this argument, and in a plurality opinion, reasoned as follows:

The acts of appellees here — riding in a car, stopping at a bowling alley, exchanging a package — were all acts that were outwardly innocent. Cf. United States v. Henry [Henry v. United States,] 361 U.S. 98,103-104, 80 S.Ct. 168 [171-172], 4 L.Ed.2d 134, 139-40 (1959). What occurred here was one isolated transaction, not a series of transactions which, under certain circumstances might indicate that an exchange of drugs was taking place. See, Commonwealth v. Lawson, supra. [454 Pa. 23, 309 A.2d 391 (1973) ] Officer Matuszak had no prior information that a drug transaction would occur on this evening. There was simply no reasonable basis to conclude that this particular package, a shopping bag large enough to contain a countless number of objects, happened to contain illegal drugs. While the officer’s curiosity might have been aroused by the action that was witnessed, and while he might have had a hunch that illegal contraband was involved, that is not sufficient. See Terry v. Ohio, supra; Commonwealth v. Jones, supra. [474 Pa. 364, 378 A.2d 835 (1977) ]

Commonwealth v. Greber, supra, 478 Pa. at 68, 385 A.2d at 1316 (per Manderino, J.).

Our thorough and searching review of the transcript does nothing more than place appellant on North Hope Street, an area of high drug activity, getting in and out of a car in the afternoon. We, therefore, conclude that these facts, considered in light of all the surrounding circumstances, do not rise to the level necessary to conduct a warrantless investigative stop under Terry. See Commonwealth v. Martinez, supra (police officer’s observation of defendant on street corner at an early hour, who walked away rapidly after observing police vehicle, and had an apparent bulge in her jacket insufficient to justify investigatory stop); Commonwealth v. Espada, supra (no reasonable suspicion existed for Terry stop of defendant who was on corner with others in high crime area, and walked toward police car when summoned). Thus, we hold that the suppression court erred in refusing to suppress the drugs and paraphernalia seized by the police. Additionally, we hold that the court should have suppressed the inculpatory statement by appellant, as it, too, was the fruit of an illegal search and seizure. See Commonwealth v. Agnew, 411 Pa.Super. 63, 600 A.2d 1265 (1991). As our Supreme Court stated in Commonwealth v. Greber, supra, “[w]hile the officer’s curiosity might have been aroused by the action that was witnessed, and while he may have had a hunch that illegal contraband was involved, that is not sufficient.” Commonwealth v. Greber, supra at 68, 385 A.2d at 1316 (emphasis added). We recognize the good-faith interdiction efforts of the officers involved in the “Bux Net” operation, and are constrained to condemn their efforts to prevent the spread of drug addiction into their community. However, as this Court has previously noted,

[i]t may be, as a practical matter, that the absence of this evidence will prevent a conviction or even a retrial. However, “[o]ne of the prices we have to pay for the security which the Fourth Amendment bestows upon us is the risk that an occasional guilty party will escape.” Commonwealth v. Conn, 377 Pa.Super. 442, 454, 547 A.2d 768, 774 (1988), quoting Commonwealth v. Neuman, 429 Pa. 441, 448, 240 A.2d 795, 798 (1986).

Commonwealth v. Agnew, supra 411 Pa.Super. at 80, 600 A.2d at 1274.

Accordingly, we reverse the judgment of sentence entered by the trial court and remand for a new trial, at which the illegally seized evidence may not be used.

Judgment of sentence reversed. Jurisdiction relinquished.

      . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Defendant Ricky Brent Schrader, who was represented by separate counsel, joined in the motion to suppress and was convicted of the same offenses, but did not file a notice of appeal from judgment of sentence.

      . In regard to the first instance that appellant exited the vehicle, the suppression court found as a fact “that the detective observed [appellant] exit from the vehicle for a few minutes and return to the vehicle.’’ (N.T. 8/24/93 at 35). This finding suggests that the detective observed appellant while he was away from the vehicle. However, our review of the record shows that on cross-examination, the detective stated that he lost visual contact with appellant for several minutes. (N.T. 8/24/93 at 20).

      . We note that Detective Carroll testified that the area was a high drug area because he had made nine prior arrests that month, all of which were made as a result of observed transactions. (N.T. 8/24/93 at 17-18). Moreover, the record shows that the only suspicious behavior observed by the police was that of numerous unnamed persons "hawking” drugs. (N.T. 8/24/93 at 34). We are hard-pressed to accept any suggestion that the act of getting out of a car and back into it, without more, is irregular, suspicious or unusual behavior under Terry.

      . Although a majority of the court was unable to agree on the rationale for its decision, its holding, which rejected a "reasonable suspicion” argument on facts certainly stronger than the instant case, lends further support to our conclusion that the evidence here was insufficient to justify a warrantless investigative stop under Terry.

      . Compare, In Interest of D.W., 427 Pa.Super. 629, 629 A.2d 1387 (1993) (radio report of drug sales and police observation of suspicious exchange in front of address reported warranted investigative stop); Commonwealth v. Kearney, supra (reasonable suspicion exists where police, responding to complaint of drug dealing in block observe defendant standing next to a companion, and on three different occasions, people give cash to companion in exchange for item in companion's pocket); Commonwealth v. Patterson, 405 Pa.Super. 17, 591 A.2d 1075 (1991) (combination of neighbor’s reports of drug activity at address and suspicious heavy foot traffic during wee hours of morning in dark back alley of suspected crack house sufficient to justify stop of defendant who was sixth person within two and a half hours to knock on alleged crack house door); Commonwealth v. Dennis, 289 Pa.Super. 305, 433 A.2d 79 (1981) (unsolicited statements by defendant that “nothing is happening here”, his erratic behavior of jumping up and down, neighbor’s complaint of "suspicious” vehicle parked in middle of alley in high crime area, inter alia, justified investigatory stop). Significantly, in each of these cases, the police officer's direct observation of the suspect's actions provided the necessary link to their own beliefs that criminal activity was afoot. Here, no such evidence exists linking appellant to the criminal activity going on in and around North Hope Street on the day in question.

      . After surrendering a syringe to police during the stop, appellant told the officer “that he had done a bag [of heroin] already.” (N.T. 8/24/93 at 40).

      . Due to our disposition of this matter on appellant’s first issue, we need not address his second issue raised on appeal.


author: HESTER, Judge:

text:
    655 A.2d 563
    Margaret Smith McCARTY, Appellant, v. Richard A. SMITH.
    Superior Court of Pennsylvania.
    Submitted Jan. 9, 1995.
    Filed Feb. 27, 1995.

      Charles J. Meyer, Philadelphia, for appellant.
    Stephen Minor, Port Allegany, for appellee.

      Before POPOVICH, JOHNSON and HESTER, JJ.
   HESTER, Judge:

Margaret Smith McCarty appeals from the June 3, 1994 support order entered by the Court of Common Pleas of McKean County. Appellant argues that the trial court erred in considering her new husband’s income in ordering her to pay support for periods when her two sons were in the physical custody of her former spouse, Richard Smith, appellee. We are constrained to reverse and remand.

The record reveals the following. The parties were married in August, 1972, and divorced in June, 1986. Two sons were born of the marriage: Damon Justin, born February 16, 1977, and Ryan Thomas, born November 11, 1981. Appellee is a high school teacher in Port Allegheny, in western Pennsylvania, and appellant is employed by Temple University in Philadelphia where she moved following the parties’ separation. The court awarded appellee partial physical custody of both children for the school year reasoning that this was more stable for them since they could remain in familiar surroundings with friends. During the three summer months, the boys are in the physical custody of appellant. Both parties subsequently remarried.

On October 28, 1986, a child support order was entered which required appellant to pay $397.50 per month for the nine months of the school year. Appellee similarly was ordered to pay appellant $282.50 per month for the three summer months. In September, 1992, both parties filed petitions to modify.

A hearing was conducted on November 20, 1992. The hearing officer recommended an increase in support since the income of both parties and the needs of the children had risen significantly. The hearing officer included one-half of the monthly income of both parties’ spouses in making a support recommendation. The court adopted the findings of the hearing officer and entered a new support order on December 15, 1992. The court ordered appellant to pay $422.50 per month during the school year and appellee to pay $406.00 per month for the three summer months. On December 29, 1992, the court corrected an oversight and doubled the amounts of support to reflect that the recommendations were calculated per month per child.

On June 21, 1993, appellee filed a petition to modify in which he alleged that the parties no longer effectively were following the original custody order since both Damon and Ryan were spending additional time with him during the summer months. Accordingly, appellee requested a recalculation of support. Following a hearing on September 13, 1993, the hearing officer reduced appellee’s support to $362.00 per child per month and reduced appellant’s support to $355.00 per child per month. In calculating support, the hearing officer indicated that he deviated from the guidelines by including one-third of the net monthly income earned by the spouse of each party. Appellant filed a pro se appeal in the form of a letter to the court. The court treated her letter as timely exceptions and heard argument on February 18, 1994. The court dismissed appellant’s exceptions following argument, and this timely appeal followed.

Our standard of review for appeals from support orders is clear. In Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 794 (1985) (citations omitted), we stated:

On appeal, a trial court’s child support order will not be disturbed unless there is insufficient evidence to sustain it or the court abused its discretion in fashioning the award. An abuse of discretion is not “merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” Boni v. Boni, 302 Pa.Super. 102, 109, 448 A.2d 547, 550 (1982).

Appellant first argues that her support order is contrary to case law or an abuse of discretion in that the court erred by including one-third of her new husband’s income before calculating her support obligation from the guideline support grids. She argues that our Supreme Court recently made clear in Ball v. Minnick, 538 Pa. 441, 447, 648 A.2d 1192, 1195-96 (1994), that discretion of the trial court is limited significantly in cases where the guidelines are applicable in determining a support order.

The rules make clear that the amount of support as determined from the support guidelines is presumed to be the appropriate amount of support and that any deviation must be based on Rule 1910.16-4.
The presumption is strong that the appropriate amount of support in each case is the amount as determined from the support guidelines. However, where the facts demonstrate the inappropriateness of such an award, the trier of fact may deviate therefrom. This flexibility is not, however, intended to provide the trier of fact with unfettered discretion to, in each case, deviate from the recommended amount of support. Deviation will be permitted only where special needs and/or circumstances are present such as to render an award in the amount of the guideline figure unjust or inappropriate.

Appellant also argues that the guidelines themselves make no provision for inclusion of a new spouse’s income. Instead, she insists a support obligation must be calculated solely from the income of the parents. Appellant therefore contends the court erred in failing to set forth the guideline amount first and then clearly indicating the amount of any deviation as required by the guidelines.

We agree. Explanatory Note (B)(2) to Pa.R.Civ.P. 1910.16-1 states clearly that the guidelines utilize the net incomes of the parties to determine the range amount of support. Once that calculation is made and set forth, then the net income of a new spouse may be considered as a basis to deviate from the guideline calculation. See Pa.R.Civ.P. 1910.16 — 4(a), which provides, “If the amount of support deviates from the amount of support determined by the guidelines, the trier of fact shall specify, in writing, the guideline amount of support, and the reasons for, and findings of fact justifying, the amount of the deviation.” See also Pa.R.Civ.P. 1910.16-4(b)(3), which allows deviation from the guidelines for “other income in the household.”

Furthermore, we agree with appellant that there is no support in the record which justifies the amount of deviation in writing. No testimony was taken with regard to how much her new spouse contributes to the joint household expenses, which would increase appellant’s income available for support. The procedure of including a portion of the income of appellant’s spouse before calculating support impermissibly increases and overstates appellant’s income relative to the grid calculation. See Astillero v. Shotwell, 294 Pa.Super. 222, 228, 439 A.2d 831, 833 (1982) (footnote omitted), where we stated, “[W]e are again reminded that there is no duty imposed upon Mother’s second spouse to support the children of his wife’s earlier marriage, and accordingly, his income, for the purpose of determining the sums he may contribute to the support of such children, is not relevant.” This could lead to an improperly excessive or inadequate calculation of her obligation under the guidelines, which contain their own allocation of child care expenses between the parents. See Steinmetz v. Steinmetz, 381 Pa.Super. 440, 554 A.2d 83 (1989) (new custody arrangement may affect the financial allocation between the parties).

In the instant case, the court considered the net income of appellant’s current husband as a basis for deviating from the guideline support before determining the guideline amount. However, the deviation must be made after the guideline amount is determined. Furthermore, the deviation must be based and supported by testimony or evidence regarding contributions by appellant’s current spouse toward joint expenses of appellant’s new household. Cf. Blaisure v. Blaisure, 395 Pa.Super. 473, 577 A.2d 640 (1990) (trial court must consider expenses incurred by supporting parent for children from a second marriage in his care).

Order reversed and remanded for proceedings consistent with this Opinion.

      . Since appellant failed to file timely exceptions to the December 15, 1992 support order, the court properly determined that she had waived her claims to an over-credit for payments made for periods when her sons were with her but were supposed to be in the custody of appellee. Pa.R.A.P. 302(a) (claims not timely raised are waived).


author: HUDOCK, Judge:

text:
    655 A.2d 566
    COMMONWEALTH of Pennsylvania, Appellee, v. Oscar Lee BAILEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1995.
    Filed Feb. 28, 1995.

      Albert J. Flora, Jr., Wilkes-Barre, for appellant.
    Peter P. Olszewski, Jr., Dist. Atty., Wilkes-Barre, for Com., appellee.
    Before POPOVICH, HUDOCK and HESTER, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed on Appellant following a jury trial in which he was convicted of terroristic threats. Appellant was sentenced to imprisonment for twelve (12) to twenty-four (24) months. This appeal followed the denial of his post-verdict motions. We affirm.

The facts surrounding this conviction involved statements made to jurors by Appellant immediately following a trial which concluded on May 5, 1993, on an unrelated criminal matter. Immediately after the trial, Appellant entered a jury waiting room, went over to a telephone, and attempted to make a call. After hanging up the phone, he proceeded through the jury room and, as he passed several jurors seated there, stated to them, “... ‘in a month from now ... ”’ N.T., 11/18/93, p. 25. He did not complete the sentence and proceeded out of the room. Two jurors, who had previously sat on a jury which convicted Appellant of a prior charge, overheard this statement and testified that Appellant looked directly at them when he made it.

After exiting the jury room, Appellant proceeded outside the courthouse and, while on the steps, stated: “... ‘in a month a lot of people are going to die because of your decision.’ ” N.T., 11/18/93, p. 64. He looked directly at a group of other jurors who also sat on his jury earlier. Three jurors from his trial testified to the incident which occurred outside of the courthouse. Also, Leonard Krispin, Jr. testified to having passed Appellant on the steps at that time. Mr. Krispin testified that Appellant stopped next to him on the stairs and made the statement involved herein. Krispin had known Appellant from an employment situation they had in common. Krispin testified that the statement was not made to him, and that he did not speak to Appellant at that time. Appellant had, however, paused on the steps and Krispin thought perhaps Appellant would stop to say hello because they knew each other. Appellant, however, did not speak to him.

The jurors who testified to the statement made inside the courthouse each expressed fear as a result of the tone of voice used by Appellant in the incomplete statement made to them. Likewise, the jurors outside the courthouse expressed their shock and disbelief of what was said, and immediately reentered the courthouse to report- the incident. As a result, a police detective was called to the scene and interviews were conducted. Detective Yursha filed the charge involved here as a result of those interviews.

Appellant raises the following issue in his appeal:

Whether the evidence is sufficient to sustain a conviction of terroristic threats?

Appellant’s Brief at p. 2.

In evaluating a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth, which has won the verdict. We then determine whether the evidence was sufficient to permit the finder of fact to determine that each and every element of the crime charged was established beyond a reasonable doubt. It is the function of the fact-finder to pass upon the credibility of the witnesses and to determine the weight to be accorded the evidence produced. The fact-finder is free to believe all, part or none of the evidence introduced at trial. The facts and circumstances established at trial “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the [trier of fact] unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

Commonwealth v. Campbell, 425 Pa.Super. 514, 519, 625 A.2d 1215, 1217 (1993) (citations omitted).

The crime of terroristic threats is defined in the Crimes Code as follows:

A person is guilty of a misdemeanor of the first degree if he threatens to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.

18 Pa.C.S. § 2706. “The purpose of [Section 2706] is to impose criminal liability on persons who make threats which seriously impair personal security or public convenience. It is not intended by this section to penalize mere spur-of-the-moment threats which result from anger.” Campbell, 625 A.2d at 1218 (quoting 18 Pa.C.S. § 2706, Official Comment— 1972). We further stated, quoting from Commonwealth v. Speller, 311 Pa.Super. 569, 573, 458 A.2d 198, 200 (1983), that “[t]he offense does not require that the accused intend to carry out the threat; it does require an intent to terrorize. The harm sought to be prevented is the psychological distress which follows from an invasion of another’s sense of personal security.” Campbell, 625 A.2d at 1219. We further stated in Campbell:

It has been observed that “ ‘even a single verbal threat might be made in such terms or circumstances as to support the inference that the actor intended to terrorize or coerce.’ ” Commonwealth v. Ashford, 268 Pa.Super. 225, 229, 407 A.2d 1328, 1329 (1979), quoting Model Penal Code, § 211.3, Tent.Draft No. 11 at p. 9 (1960). See also: Commonwealth v. Chance, 312 Pa.Super. 435, 443, 458 A.2d 1371, 1375 (1983). Moreover, “it is unnecessary for [the defendant] to specifically articulate the crime of violence which he or she intends to commit where the type of crime may be inferred from the nature of the statement and the context and circumstances surrounding the utterance of the statement.” Commonwealth v. Hudgens, 400 Pa.Super. 79, 90, 582 A.2d 1352, 1358 (1990).

Id. 425 Pa.Super. 514, 625 A.2d at 1219.

As we previously stated, the testimony at trial demonstrated that Appellant first made an incomplete statement to jurors in the jurors’ lounge. He testified that when he recognized that there were jurors from his trial present in the room, he refrained from completing the statement because he knew he should not speak “like that”, N.T., 11/18/93, p. 83, to jurors who had just sat on his jury. Appellant, however, proceeded to exit the courthouse and make the complete statement he attempted to make inside while looking directly at other jurors who had sat on his jury. One juror who heard Appellant’s statement outside the courthouse expressed her fear as follows: “Twenty years ago you might not have been [frightened], but this day and age it is frightening.” N.T., 11/18/93, p. 65. Clearly, the circumstances and the manner in which the statement was delivered were such that a jury could infer that Appellant intended to terrorize them. Appellant’s own testimony demonstrates that these statements were not made in spur-of-the-moment anger. He thought he had been wronged by the jury’s decision in his previous matter and was making, what he called, a religious statement. Appellant testified that his statement was, “... ‘one day vengeance is going to come. When vengeance comes, many people will die because of the decision you made.’ ” N.T., ° 11/18/93, p. 81. On rebuttal, Leonard Krispin was recalled and he testified that he did not hear Appellant use the word “vengeance” in his statement. Taking the evidence in the light most favorable to the Commonwealth, we find that Appellant’s use of the words “in a month” and “your decision,” which were part of the statements directed to the jurors, were sufficient under the circumstances to allow the jury in the present case to find that Appellant intended to terrorize these people. Furthermore, the implication of Appellant’s statement was that he was threatening a homicide, which is clearly a crime of violence. The evidence was sufficient to convict Appellant of terroristic threats.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 2706.

      . Appellant was convicted at that trial of disrupting a meeting, disorderly conduct, and insulting our flag. Appellant was sentenced to a one-year term of probation as a result of these convictions. Appellant’s probation was revoked as a result of the incident involved in the matter now before us and was the subject of a prior appeal. See Commonwealth v. Bailey, 440 Pa.Super. 628, 654 A.2d 597 (1994) (No. 2298 Philadelphia, 1993, filed 10/26/94).


text:
    655 A.2d 568
    COMMONWEALTH of Pennsylvania v. Jose Manuel DASILVA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1994.
    Filed Feb. 28, 1995.

      Stephen L. Shields, Bethlehem, for appellant.
    John M. Morganelli, Dist. Atty., Bethlehem, for Com.
    Before CAVANAUGH, KELLY and BROSKY, JJ.
   KELLY, Judge:

In this appeal, we are called upon to determine whether a motorist who fails to stop when meeting or overtaking a school bus whose red signal lights are flashing and whose side stop signal arms are activated, may be convicted of violating 75 Pa.C.S.A. § 3345(a), where the operator of the school bus failed to activate her amber lights no less than one hundred, fifty (150) feet prior to making a stop pursuant to the statutory requirement of 75 Pa.C.S.A. § 3345(d). Although the Commonwealth’s evidence does indeed indicate a failure on the part of the school bus operator to activate the amber lights at the required distance, we hold that the appellant may still be convicted of violating- 75 Pa.C.S.A. § 3345(a). Thus, we affirm.

The relevant facts and procedural background are as follows. On April 23, 1993 at approximately 8:30 a.m., while seated in her van at a stop sign on the east side of the intersection of Sixth Street and Buchanan Street in Bethlehem, Pennsylvania, Debra Eiclen, a private citizen, observed the appellant, Jose Manuel DaSilva, who was driving a white 1993 Dodge mini-van, proceed through the intersection from the south on Buchanan Street and pass a school bus which had stopped just before the north side of the intersection to discharge children and had its red flashing lights and side stop signal arms activated. Ms. Eiclen recorded the appellant’s license plate number, DDE! 54, and proceeded to the police sub-station to report the incident. The police contacted the driver of the school bus, Lori Kern, who confirmed the incident. On the basis of Ms. Eiclen’s assertions, the police issued a citation; District Justice Nancy Matos found the appellant guilty of the charge and ordered the appellant to pay a fine of $100.00 plus costs. The appellant appealed to the Common Pleas Court. On October 28, 1993, at the request of both the appellant and the Commonwealth, Judge F.P. Kimberly McFadden continued the case to December 2, 1993. Prior to the hearing date, on November 23, 1993, Judge McFadden sustained the appeal, pursuant to Commonwealth v. Fulmer, 423 Pa.Super. 338, 621 A.2d 146 (1993). On December 3, 1993, having reconsidered her disposition of the appeal, Judge McFadden vacated the November 23, 1993 order and scheduled the case for a hearing on January 5,1994. Several continuances later, on March 31, 1994, Judge McFadden filed another order, affirming the December 3,1993 order. The case was then listed for trial on May 4, 1994. A continuance was granted until June 1, 1994. Following a trial de novo on June 1, 1994 before Judge McFadden, at which both Ms. Eiclen and Ms. Kern testified for the Commonwealth, the appellant was again convicted of the charge and ordered to pay a $100.00 fine plus costs. The appellant brought this timely appeal.

The appellant presents the following questions for our review:

1. DID THE TRIAL COURT COMMIT AN ERROR OF LAW IN FAILING TO REQUIRE THE COMMONWEALTH TO FOLLOW THE CITATION FILING PROCEDURE DELINEATED IN § 3345(a.l) OF THE PENNSYLVANIA MOTOR VEHICLE CODE?
2. DID THE TRIAL COURT COMMIT AN ERROR OF LAW BY VACATING ITS OWN ORDER SUSTAINING APPELLANT’S APPEAL AND THUS SUBJECTING APPELLANT TO DOUBLE JEOPARDY?
3. DID THE TRIAL COURT COMMIT AN ERROR OF LAW IN FAILING TO DISMISS THIS CASE AFTER THE COMMONWEALTH FAILED TO SHOW THAT THE BUS OPERATOR ACTIVATED HER AMBER LIGHTS NO LESS THAN 150' FEET PRIOR TO MAKING A STOP PURSUANT TO THE STATUTORY REQUIREMENT OF 3345.3(d) [sic]?

Appellant’s Brief at 3.

The scope of appellate review of a trial de novo is limited to a determination of whether the trial court’s findings of fact are supported by competent evidence and/or whether an error of law was committed. Commonwealth v. Horney, 365 Pa.Super. 152, 154, 529 A.2d 18, 19 (1987) (citing Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621 (1986), allocatur denied, 514 Pa. 638, 523 A.2d 345 (1987)). Absent a manifest abuse of discretion, we shall not disturb on appeal the findings of the trial court. Id.

The appellant contends that the trial court erred when it vacated its order of November 23, 1993 discharging the appellant. The appellant argues that the order sustaining his appeal pursuant to Commonwealth v. Fulmer, supra 423 Pa.Super. 338, 621 A.2d 146 represented an acquittal and therefore a final adjudication in the matter, thus reinstatement of the charge would place him in double jeopardy. We cannot agree.

The protections afforded by the Double Jeopardy Clause of the United States Constitution and the Pennsylvania Constitution are coextensive, involving the same meaning, purpose and end. Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988); Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986). This clause protects against multiple prosecutions for the same offense after acquittal and against multiple punishments for the same crime. Commonwealth v. Arriaga, 422 Pa.Super. 52, 618 A.2d 1011 (1993); Commonwealth v. Rightley, 421 Pa.Super. 270, 617 A.2d 1289 (1992).

Commonwealth v. Quinlan, 433 Pa.Super. 111, 120 n. 4, 639 A.2d 1235, 1240 n. 4 (1994). Further, as stated in the dissenting opinion in Commonwealth v. Kern, 294 Pa.Super. 151, 439 A.2d 795 (1982), overruled on other grounds by Commonwealth v. Butler, 389 Pa.Super. 209, 566 A.2d 1209 (1989):

it is axiomatic that in order to prevail on a plea of double jeopardy the defendant must establish that he has already been once placed in jeopardy. In a jury case, jeopardy does not attach until the jury has been impaneled and sworn; and in a non-jury case, jeopardy attaches when the accused has been subjected to a charge and the court has begun to hear evidence.
Commonwealth v. Smith, 232 Pa.Super. 546, 548-549, 334 A.2d 741, 742 (1975). Consequently, where jeopardy has not attached ab initio, there can be no viable subsequent claim of double jeopardy.

Commonwealth v. Kern, supra, 294 Pa.Super. at 158-59, 439 A.2d at 798-99. See also Commonwealth v. Rosario, 418 Pa.Super. 196, 613 A.2d 1244 (1992), allocatur granted, 535 Pa. 646, 633 A.2d 151 (1993).

A pretrial order which discharges a defendant is a final order. Commonwealth, v. Butler, supra, 389 Pa.Super. at 212, 566 A.2d at 1210; Commonwealth v. Andrews, 251 Pa.Super. 162, 164, 380 A.2d 428, 429 (1977). As a general rule, a trial court may not modify a final order beyond the thirty day statutory time limit set forth in 42 Pa.C.S.A. § 5505. Commonwealth v. Frolic, 425 Pa.Super. 581, 585, 625 A.2d 1249, 1251 (1993). A trial court, however, has the power to rescind a pretrial order discharging a defendant if the court acts within thirty days of the entry of the order. Commonwealth v. Butler, supra, 389 Pa.Super. at 212, 566 A.2d at 1210; Commonwealth v. Kern, supra, 294 Pa.Super. at 156, 439 A.2d at 797-98; Commonwealth v. Sheppard, 372 Pa.Super. 550, 551-52, 539 A.2d 1333, 1334 (1988). Thus, “the court’s exercise of . its power under § 5505 of the Judicial Code is almost entirely discretionary; this power may be exercised sua sponte.... ” Justice v. Justice, 417 Pa.Super. 581, 586, 612 A.2d 1354,1357 (1992), allocatur denied, 533 Pa. 635, 621 A.2d 581 (1993). See also Hutchison by Hutchison v. Luddy, 417 Pa.Super. 93, 108, 611 A.2d 1280, 1288 (1992), appeal dismissed, 538 Pa. 484, 649 A.2d 435 (1994) (citing Atlantic Richfield Company v. J.J. White, 302 Pa.Super. 276, 448 A.2d 634 (1982)) (“court has inherent power to reconsider its own rulings”).

In the instant case, the trial court set a date for the appellant’s trial de novo. Prior to that date, the trial court determined as a matter of law that, pursuant to Commonwealth v. Fulmer, supra 423 Pa.Super. 338, 621 A.2d 146, the appellant’s appeal should be sustained and entered an order to that effect on November 23, 1993. On December 3, 1993, having sua sponte reconsidered its order within thirty days after its entry, the trial court vacated its previous order and again scheduled the appellant for trial. The appellant, although subjected to a charge, had not been placed in jeopardy because the trial court had not yet begun to hear evidence. See Commonwealth v. Rosario, supra 418 Pa.Super. 196, 613 A.2d 1244; Commonwealth v. Kern, supra. Because the appellant had not been placed in jeopardy, the trial court’s December 3, 1993 order could not have placed him in double jeopardy.

As to the appellant’s assertion that the November 23, 1993 order was an acquittal, the ruling of the trial court did not represent a resolution of any of the factual elements of the offense charged. See Commonwealth v. MacArthur, 427 Pa.Super. 409, 629 A.2d 166 (1993). Hence, the order of November 23, 1993 was not an acquittal and reinstatement of the charge would not place him in double jeopardy. Therefore, we conclude that the appellant’s second issue as presented is without merit. We now proceed to the appellant’s first issue presented.

The appellant asserts that the trial court erred when it failed to require the Commonwealth to adhere to the citation filing procedure delineated in 75 Pa.C.S.A. § 3345(a.l) of the Pennsylvania Motor Vehicle Code. The appellant argues that because the school bus driver observed the violation, had knowledge concerning the identity of the vehicle in question, and knew that the police also possessed the information and were acting upon it, she should have filed a written, signed report to be included with the citation. (Appellant’s Brief at 7). We disagree.

In support of this proposition, the appellant cites Commonwealth v. Fulmer, supra 423 Pa.Super. 338, 621 A.2d 146. There, Ms. Fulmer overtook a school bus while its flashing red lights and stop signal arm were activated at a school bus stop. The school bus driver did not see the driver of the automobile which had passed her, nor could she identify the automobile’s color. Two days later, the school bus operator received a note from the mother of one of her passengers. In the' note, the identity of the driver of the automobile which had overtaken the school bus was provided. The school bus driver gave the information to her supervisor who then verbally communicated it to the Hampton Township Police Department. Officer William Leo testified at trial that he conducted an investigation and then issued a citation. Ms. Fulmer was found guilty by the district justice and she filed a timely pro se appeal. Following a de novo trial in the Court of Common Pleas, Ms. Fulmer was again found guilty of violating 75 Pa.C.S.A. § 3345(a). Ms. Fulmer filed a timely post trial motion in arrest of judgment; the motion was dismissed following argument. Ms. Fulmer then appealed to the Superior Court.

On appeal, Ms. Fulmer argued that the plain meaning of the statute required that whenever a police officer learns of an alleged violation of 75 Pa.C.S.A. § 3345(a) through the report of a school bus operator, as opposed to any other person, the report must be filed with the citation. The Superior Court reversed the order of the trial court, dismissed the citation, and discharged Ms. Fulmer, holding that “a school bus driver who initiates legal action against the violator of § 3345(a) must do so by filing a signed, written report which includes the information enumerated in subsections (i) through (iv) of § 3345(a.l)” Commonwealth v. Fulmer, supra, 423 Pa.Super. at 342, 621 A.2d at 148.

In contrast, in the instant case, the police received a report of the incident from a private citizen. They contacted the school bus driver merely for confirmation that the incident had occurred. At trial, the school bus operator testified that she saw a white van approaching the school bus from the opposite side of the street. (N.T. June 1, 1994 at 21). She then stated that the reason that she did not report the incident was because she “did not have an accurate description nor a plate number” and in cases such as this one, she had been instructed not to file a report. (Id. at 24). Therefore, the citation filing procedure found in 75 Pa.C.S.A. § 3345(a.l), as interpreted by Commonwealth v. Fulmer, supra 423 Pa.Super. 338, 621 A.2d 146, is inapplicable because the incident from which the charge arose had been reported by a private citizen and not the school bus operator. Thus, the appellant’s first issue is without merit.

In his third issue, the appellant asserts that the trial court erred when it failed to grant a demurrer because the Commonwealth did not prove that the school bus driver’s actions conformed with the statutory requirements of 75 Pa. C.S.A. § 3345(d) which are that the amber visual signals must be activated by the driver of every school bus not more than three hundred feet nor less than one hundred and fifty feet prior to making a stop for the purpose of receiving or discharging school children. The appellant argues that the legislative intent of 75 Pa.C.S.A. § 3345(d) is clear: “[T]he legislature provided the mandate of this section to allow operators of vehicles in the vicinity of the school bus ample notice to take the necessary action of stopping in a timely fashion.” (Appellant’s Brief at 9). However, because the appellant’s trial counsel did not rest following the adverse ruling on the appellant’s demurrer but instead proceeded to present a case in defense, a challenge on appeal to the propriety of this ruling may be considered only as a challenge to the sufficiency of the evidence as a whole. Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989); Commonwealth v. Woods, 432 Pa.Super. 428, 438, 638 A.2d 1013, 1018 (1994), allocatur denied, 539 Pa. 650, 651 A.2d 537 (1994); Commonwealth v. Price, 416 Pa.Super. 23, 610 A.2d 488 (1992).

Pennsylvania law is well-settled that:

In reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Commonwealth v. Hanes, 361 Pa.Super. 357, 361, 522 A.2d 622, 623-24 (1987); Commonwealth v. Reddix, 355 Pa.Super. 514, 519, 513 A.2d 1041, 1045 (1986); Commonwealth v. Duffy, 355 Pa.Super. 145, 154-55, 512 A.2d 1253, 1260-61 (1986). If [the trier of fact] could have reasonably determined from the evidence adduced that all of the necessary elements of the crime were established, then the evidence will be deemed sufficient to support the verdict. Commonwealth v. Gerulis, 420 Pa.Super. 266, 273, 616 A.2d 686, 689 (1992); Commonwealth v. Berkowitz, 415 Pa.Super. 505, 515, 609 A.2d 1338, 1343 (1992).

Commonwealth v. La, 433 Pa.Super. 432, 459, 640 A.2d 1336, 1350 (1994); Commonwealth v. Wood, 432 Pa.Super. 183, 199-200, 637 A.2d 1335, 1343 (1994). The trier of fact is entitled to believe all, part, or none of the evidence adduced at trial. Commonwealth v. Price, 420 Pa.Super. 256, 264, 616 A.2d 681, 685 (1992) (citing Commonwealth v. Sullivan, 399 Pa.Super. 124, 581 A.2d 956 (1990); Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987)). It is within the province of the trier of fact to determine the weight to be given each witness’ testimony. Commonwealth v. Molinaro, 429 Pa.Super. 29, 33, 631 A.2d 1040, 1042 (1993) (citing Commonwealth v. Parker, 387 Pa.Super. 415, 564 A.2d 246 (1989)). Where conflicting accounts of the same event are given by -witnesses, the credibility of the -witnesses is crucial to a finding of innocence or guilt. Commonwealth v. Price, supra 420 Pa.Super. 256, 616 A.2d 681; Commonwealth v. Pirela, 398 Pa.Super. 76, 84, 580 A.2d 848, 852 (1990), allocatur denied, 527 Pa. 672, 594 A.2d 658 (1991).

Instantly, the record evidence adduced at trial reveals that a private citizen, Debra Eiclen, while seated in her automobile at an intersection, observed the appellant seemingly ignore the flashing red signal lights and side stop signal arms of a school bus and proceed through the intersection past the school bus whose operator was also sounding the horn repeatedly. (N.T. June 1, 1994 at 5, 10-12). Ms. Eiclen reported the incident to the police, providing a description of the vehicle and the license plate numbers. (Id. at 10-12). The police contacted the school bus operator for confirmation of the incident.

The school bus driver testified that she had activated her amber lights as she turned the corner from Fifth Street onto Buchanan Street approximately twenty-five feet from the location where she eventually halted the school bus. (Id. at 21, 25). She then stopped the school bus in the roadway next to the appropriate location at the stop sign at Sixth and Buchanan Streets because automobiles were improperly parked at the school bus stop in a clearly marked no parking zone. (Id.). When she opened the doors to allow the children to alight, the red flashing signal lights and side stop signal arms were automatically activated. (Id. at 24). As children were exiting the school bus, a red Thunderbird approached and attempted to pass the school bus. (Id. at 21). The operator sounded her horn and the red Thunderbird stopped alongside the school bus’ left side stop signal arm, approximately two car widths away from the stop arm. (Id.). As the school bus driver watched the children continue to exit from the school bus, she noticed a white van, approximately ten or fifteen feet away, approaching from the opposite side of Buchanan Street. (Id. at 21-22). The school bus operator again sounded her horn repeatedly but the vehicle continued to slowly approach. (Id. at 21). The white van proceeded north on Buchanan Street around the red Thunderbird and then between the red Thunderbird and the school bus, almost hitting the school bus’ activated side stop signal arm. (Id.). The school bus operator testified that she had neither an accurate description nor the license plate number of the vehicle and had been instructed not to file a report in instances where she lacked this information. (Id. at 24). The Commonwealth then rested its case.

The appellant moved for dismissal of the charge. The motion was denied. Following the trial court’s denial of the appellant’s motion for dismissal of the charge (id. at 26-27), the appellant presented the testimony of Fernando Lopez, a neighbor, who stated that he was driving in the area at approximately the time the incident allegedly occurred. (Id. at 28). Mr. Lopez testified that he saw the school bus operated by Lori Kern, that the school bus was parked alongside the curb (id. at 28-29), that the red, flashing lights and side stop signal arms were not activated when he saw the school bus (id. at 29), and that he had never seen the school bus with its lights activated. (Id. at 31). Mr. Lopez also testified that he did not see the appellant either ahead of his vehicle or behind his vehicle when he saw the school bus parked alongside the curb in the 500 block of Buchanan Street.

The appellant then testified that on the date and at the appropriate time, he recalled bringing his vehicle to a complete stop at Sixth and Buchanan Streets, across the intersection from the school bus in question. The appellant stated that he saw the school bus and that it was discharging children at the time, but that he did not see any red, flashing lights or side stop signal arms activated. (Id. at 36-37). He also attested that the school bus was parked immediately adjacent to the curb, not in the roadway. (Id. at 35).

The trial court, sitting as the trier of fact, listened to the witnesses’ contradictory accounts of the incident, observed their demeanor, weighed their credibility, and determined that the appellant was guilty of violating 75 Pa.C.S.A. § 3345(a). Because the red signal lights on the school bus were flashing and the side stop signal arms were activated, the appellant had a duty to stop at least ten feet before reaching the school bus and not proceed until the flashing red signal lights were no longer actuated. 75 Pa.C.S.A. § 3345(a).

We agree with the trial court that the appellant’s claim that because the operator of the school bus failed to activate the amber lights no less than one hundred, fifty feet prior to making a stop he cannot be found guilty, is meritless. The reason for requiring school bus drivers to activate their amber lights no less than one hundred, fifty feet prior to stopping the school bus to receive or discharge children is simply to provide a warning to other drivers on the road of the imminent stop which will be made by the school bus and must consequently be made by the other drivers. See 75 Pa.C.S.A. § 3345(a), (d). Even assuming that the school bus driver had actuated the amber lights at the legally mandated distance from the intended stop, the amber lights would have been activated while the school bus was still on Fifth Street, out of the line of vision of any drivers who might be approaching the school bus from the south on Buchanan Street as the appellant did. Thus, activating the amber lights at any greater distance from the bus stop than the corner of Fifth Street and Buchanan Street would not have provided a warning to the appellant of any longer duration. The appellant obviously could not have seen around the corner of Fifth and Buchanan Streets to be warned as he had not even reached the intersection of Sixth and Buchanan Streets. Because the appellant could not have seen the amber lights prior to the school bus turning onto Buchanan Street from Fifth Street, it was irrelevant to the appellant’s conviction whether the amber lights were activated at the corner of Fifth and Buchanan Streets or at some distance prior to that point on Fifth Street. After careful study of the record, we conclude that the evidence, when viewed in the light most favorable to the Commonwealth along with all reasonable inferences drawn therefrom, was sufficient to support the verdict of guilty to the charge of violating 75 Pa.C.S.A. § 3345(a).

Based upon the foregoing, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . This subsection as amended December 19, 1988 states:
      (a) Duty of approaching driver when red signals are flashing.— Except as provided in subsection (g), the driver of a vehicle meeting or overtaking any school bus stopped on the highway shall stop at least ten feet before reaching the school bus when the red signal lights on the school bus are flashing and the side stop signal arms are activated under section 4552(b.l) (relating to general requirements for school buses). The driver shall not proceed until the flashing red signal lights are no longer actuated. In no event shall a driver of a vehicle resume motion of the vehicle until the school children who may have alighted from the school bus have reached a place of safety.
      75 Pa.C.S.A. § 3345(a).

      . The pertinent subsection states:
      (d) Use of amber signals. — The amber visual signals shall be actuated by the driver of every school bus not more than 300 feet nor less than 150 feet prior to making a stop for the purpose of receiving or discharging school children and shall remain in operation until the red visual signals are actuated. Amber signals shall not be used unless the red visual signals are to be actuated immediately following.
      75 Pa.C.S.A. § 3345(d).

      . We note also that where an appellant was found guilty before a district magistrate and timely filed an appeal to the Common Pleas Court for a trial de novo, an appellant may not argue a violation of double jeopardy. Commonwealth v. Sanford, 497 Pa. 442, 444, 441 A.2d 1220, 1221 (1982) (citing Commonwealth v. Thomas, 448 Pa. 42, 47, 292 A.2d 352, 355 (1972)); Commonwealth v. Shirey, 333 Pa.Super. 85, 115 n. 12, 481 A.2d 1314, 1330 n. 12 (1984).

      . Section 3345 of Title 75 of the Pennsylvania Consolidated Statutes Annotated states in pertinent part:
      (a.l) Reports by school bus operators.—
      (1) The operator of a school bus who observes a violation of subsection (a) may prepare a signed, written report which indicates that a violation has occurred. To the extent possible, the report shall include the following information:
      (i) Information, if any, pertaining to the identity of the alleged violator.
      (ii) The license number and color of the vehicle involved in the violation.
      (iii) The time and approximate location at which the violation occurred.
      (iv) Identification of the vehicle as an automobile, station wagon, motor truck, motor bus, motorcycle or other type of vehicle.
      (2) Within 48 hours after the violation occurs, the school bus operator shall deliver a copy of the report to a police officer having authority to exercise police power in the area where the violation occurred. If the police officer believes that the report establishes a sufficient basis for the issuance of a citation, the officer shall file a citation and the report with the issuing authority. If the issuing authority determines that the report and citation establish a sufficient basis for the issuance of a summons, a summons shall be issued in accordance with general rules governing the institution of proceedings in summary traffic offense cases. The issuing authority shall send the defendant a copy of the citation, together with a statement that it was filed by the police officer named in the citation on the basis of information received.
      (3) A person may institute a proceeding pursuant to this subsection or in accordance with any means authorized by the Rules of Criminal Procedure.
      Added 1984, March 29, P.L. 155, No. 30, § 3, effective in 60 days. 75 Pa.C.S.A. § 3345(a.l).

      . The only exception is provided in subsection (g) as follows:
      (g) Exceptions from stopping requirements. — The driver of a vehicle upon a highway with separate roadways need not stop upon meeting or passing a school bus with actuated'red signal lights which is on a different roadway.
      75 Pa.C.S.A. § 3345(g). Instantly, the appellant and the school bus were not on separate roadways.