author: BECK, Judge:

text:
    444 A.2d 1228
    COMMONWEALTH of Pennsylvania v. Clarence WALKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 19, 1981.
    Filed April 23, 1982.

      Louis S. Criden, Philadelphia, for appellant.

      Jane C. Greenspan, Assistant District Attorney, Philadelphia, for appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   BECK, Judge:

Pursuant to 18 Pa.C.S.A. § 903(a) and 18 Pa.C.S.A. § 4701(a)(3), Appellant was charged with and, in a non-jury trial, convicted of multiple counts of criminal conspiracy and bribery in connection with his former employment with the Sanitation Division of the Philadelphia Department of Streets. Subsequently, Appellant’s post-verdict motions were denied, and two concurrent sentences of six to twenty-three months incarceration were imposed for the three counts of conspiracy and for three counts of bribery. Additionally, for the remaining counts of bribery, Appellant received seven years probation which was to run concurrently with the aforementioned sentences of imprisonment and which was conditioned upon restitution and payment of a fine. This is a direct appeal from the judgment of sentence. We affirm.

Before this Court Appellant argues, alternatively, (a) that his prosecution was untimely; (b) that he was convicted under an unconstitutional statutory provision, and (c) that the court of common pleas abused its discretion in determining his sentence.

Appellant contends that his prosecution is barred by the time limitation of 18 Pa.C.S.A. § 108(c)(2) which, Appellant maintains, prevents prosecution for a crime more than three years after the crime was committed.

“When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded . . . . ” 1 Pa.C.S.A. § 1921(b); Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980). “[T]he language of a statute must be construed according to common and approved usage, and where possible it should be interpreted in a manner so as to give effect to each and every provision of the Act.” Commonwealth v. Hill, 481 Pa. 37, 42 n.6, 391 A.2d 1303, 1306 n.6 (1978); 1 Pa.C.S.A. § 1903.

Section 108(c)(2) of the Crimes Code states in pertinent part:

(c) If the period [for prosecution] prescribed in subsection (b) [five years within which to commence prosecution for certain offenses such as robbery; two years within which to commence prosecution of other offenses such as bribery] . . . has expired, a prosecution may nevertheless be commenced for:
(2) Any offense committed by a public . . . employe in . . . connection with his ... employment at any time when the defendant is in public . . . employment or within two years thereafter, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.

(Emphasis added.)

Construing identical language found in Section 108(c)(1) of the Crimes Code, a provision parallel to Section 108(c)(2), this Court determined that “under § 108(c)(1), a prosecution may be commenced up to five years from the commission of the crime . . . . ” Commonwealth v. Bidner, 282 Pa.Super.Ct. 100, 114, 422 A.2d 847, 854 (1980) (emphasis added), appeal denied, February 12, 1981; Commonwealth v. Maleno, 267 Pa.Super.Ct. 560, 407 A.2d 51 (1979). Moreover, in a footnote to Commonwealth v. Bestwick, 262 Pa.Super.Ct. 558, 569 n.5, 396 A.2d 1311, 1316 n.5 (1978), Judge Price interpreted Section 108(c)(2) as signifying “that the normal two-year statute of limitations [under 18 Pa.C.S. § 108(b)] may not be extended for more than an additional three years in the case of a public . . . employe committing an offense ... in connection with, his office.” (Emphasis added.) See also Commonwealth v. Hawkins, 295 Pa.Super.Ct. 429, 441 A.2d 1308 (1982).

Adopting Appellant’s position would require this Court to construe the statutory phrase “in no case . . . extend ... by more than three years” as being synonymous with “in no case . . . extend ... to more than three years,” contrary to the ordinary usage and meaning of the words. Furthermore, Appellant’s interpretation of the statutory language would create a patently absurd result whereby certain offenses listed in Section 108(b) of the Crimes Code could be prosecuted within a period of five years from the date of their commission except where committed by a public officer or employe in which instances the time for prosecution would be restricted to a period within three years from the date of commission of the offenses. Such an interpretation conflicts with the introductory wording of Section 108(c) which states that the exceptions contained in Section 108(c) may be utilized if the usual period for prosecution under Section 108(b), i.e., either five years or two years depending upon the offense, has expired.

Therefore, because Appellant was duly prosecuted for offenses committed within five years of the commencement of the prosecution, Appellant’s prosecution comported with the statutory time limitation of Section 108(c)(2) of the Crimes Code.

Next, Appellant asserts that 18 Pa.C.S.A. § 4701(a)(3) is unconstitutionally vague because its prohibition against a public servant’s contravention of a “known legal duty” necessitates adherence to an indeterminable behavioral norm.

“[A] legislative enactment enjoys a presumption in favor of its constitutionality and will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution. All doubts are to be resolved in favor of a finding of constitutionality.” Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 116, 394 A.2d 932, 937 (1978). Where, however, the language of a statute is so imprecise that it fails to provide adequate notice of which acts it purports to render unlawful, the statute does not satisfy the mandates of due process and is void for vagueness. Commonwealth v. Bunting, 284 Pa.Super.Ct. 444, 426 A.2d 130 (1981); Commonwealth v. Jackson, 281 Pa.Super.Ct. 310, 422 A.2d 184 (1980), appeal denied, March 13, 1981. But “when an ascertainable standard is present in a statute, the violator whose conduct falls clearly within the scope of such standard has no standing to complain of vagueness.” Id., 281 Pa.Superior Ct. at 316, 422 A.2d at 187.

In the present case, over a four-year interval, Appellant, while a municipal employe, repeatedly and clandestinely accepted payments for facilitating the unlawful dumping of chemical wastes in city landfills. Appellant thereby acted in contravention of the requisites of Section 20-604(1) of The Philadelphia Code and Sections 401(a) and 610(1) of the Solid Waste Management Act, Act of July 7, 1980, P.L. 380, 35 P.S. § 6018.401(a) and 35 P.S. § 6018.610(1). Since The Philadelphia Code and the Solid Waste Management Act thus provided “meaning referents” by which the behavioral standard of Section 4701(a)(3), i.e., “legal duty,” could be ascertained, Section 4701(a)(3) did not impose criminal responsibility where Appellant “could not reasonably understand that his contemplated conduct [was] proscribed.” United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-98, 9 L.Ed.2d 561 (1963).

Moreover, “the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged.” Commonwealth v. Jackson, 281 Pa. Super.Ct. at 315-16, 422 A.2d at 186. Here, Appellant’s supervisor testified that he advised Appellant (a) to prevent private dumping at city landfills, (b) to permit only government vehicles to dump at city landfills, and (c) to report any unauthorized dumping at city landfills. Despite these instructions from his supervisor, Appellant, for remuneration, not only allowed successive, unauthorized deposits of chemical company wastes at city landfills but also assisted in concealing the illegal deposits by using a bulldozer to cover the wastes. Appellant further aided the unauthorized dumpings through conspiratorial acts whereby Appellant shared his dishonest profits with other municipal employes to prevent their reporting the illegal dumpings. Thus, Appellant knowingly violated his public duty. See Commonwealth v. Weselyk, 268 Pa.Super.Ct. 569, 408 A.2d 1149 (1979), appeal denied, February 13, 1980, which also concerned Section 4701(a)(3).

Finally, Appellant argues that the court of common pleas abused its discretion by not conforming Appellant’s sentence to the sentencing guidelines of 42 Pa.C.S.A. § 9721 (sentencing alternatives) and 42 Pa.C.S.A. § 9722 (probation). Specifically, Appellant argues that he should have received a sentence of probation and not of confinement.

“Imposition of a proper sentence under the Sentencing Code ... is a matter vested in the sound discretion of the trial court, whose determination will not be disturbed on appeal but for a manifest abuse of discretion.” Commonwealth v. Landi, 280 Pa.Super.Ct. 134, 138, 421 A.2d 442, 443 (1980); 42 Pa.C.S.A. § 9781. “Generally, the imposition of a sentence ... is left undisturbed on appeal because the trial court is in a better position to weigh the factors involved in this determination. ...” Commonwealth v. Bromund, 278 Pa.Super.Ct 189, 201, 420 A.2d 493, 499 (1980).

The judge must . . . state on the record the reasons for the sentences imposed .... This statement of reasons must show that . . . the judge attached weight to the factors set forth in the statutory guidelines for sentencing, and carefully considered the facts concerning the circumstances of the offense and the character of the defendant.

Commonwealth v. Maxwell, 280 Pa.Super.Ct. 235, 243, 421 A.2d 699, 703 (1980); 42 Pa.C.S.A. § 9721; Commonwealth v. Kraft, 294 Pa.Super.Ct. 599, 440 A.2d 627 (1982).

In this case the court of common pleas received a presentence report and heard extensive testimony regarding the type of sentence suitable for Appellant. The judge stated on the record that in computing Appellant’s sentence he had considered myriad factors including Appellant’s role in the bribery schemes, the gravity of the offenses, the roles of other individuals in the bribery schemes, the repetitive nature of the offenses, Appellant’s age and health, Appellant’s financial resources and responsibilities, Appellant’s failure to demonstrate contrition by not offering to make restitution at the earliest possible moment, Appellant’s educational background, Appellant’s familial obligations, and the serious need to deter breaches of the public trust. See Kraft.

As in Weselyk, “[t]he court below found that imprisonment was not needed for rehabilitative or custodial purposes, but was justified because of appellant’s breach of the public trust. It is well-settled that the seriousness of an offense may itself justify incarceration rather than probation.” Id., 268 Pa.Super. at 572, 408 A.2d at 1150-51. Furthermore, since the judge imposed probation for some of the charges against Appellant, the judge was cognizant of the sentencing guidelines underlying an award of probation and did not ignore probation as an alternative sentence. Kraft

Therefore, we affirm the judgment of sentence of the court of common pleas.

      . Section 903(a) states in pertinent part:
      (a) A person is guilty of conspiracy with another person ... to commit a crime if with the intent of promoting or facilitating its commission he:
      (1) agrees with such other person ... that they ... will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
      (2) agrees to aid such other person ... in the planning or commission of such crime ....

      . Section 4701(a)(3) states in pertinent part: “A person is guilty of bribery ... if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another any benefit as consideration for a violation of a known legal duty as public servant

      . “[I]n order for defendant to have been found guilty of . .. [bribery] it has to be proven at trial that he was: (1) a public servant; (2) ... agreed to accept money ...; and (3) in order to violate or forego the exercise of a legal duty or other exercise of discretion.” Commonwealth v. Goldbard, 276 Pa.Super.Ct. 193, 197, 419 A.2d 161, 163 (1980).

      . Section 108(c)(1) states:

        (c) If the period [for prosectution] prescribed in subsection (b) [five years within which to commence prosecution for certain offenses such as robbery; two years within which to commence prosecution for other offenses such as bribery] ... has expired, a prosecution may nevertheless be commenced for:
      (1) Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.

      (Emphasis added.)

      . Section 20-604(1) of The Philadelphia Code (1978) states in pertinent part: “No .. . City ... employee, shall solicit, accept or receive any gift, loan, gratuity, favor or service of substantial economic value that might reasonably be expected to influence one in his position in the discharge of his official duties .... ” Here, Appellant received more than $17,000 (seventeen thousand dollars) in bribes over a four-year span.

      . Section 401(a) declares in pertinent part: “No person ... shall ... dispose of hazardous waste within this Commonwealth unless such .. . disposal is authorized by the rules and regulations of the [Department of Environmental Resources] .... ”

      . Section 610(1) declares in pertinent part:
      It shall be unlawful for any person ... to:
      (1) Dump or deposit, or permit the dumping or depositing, of any solid waste onto the surface of the ground or underground or into the waters of the Commonwealth, by any means, unless a permit for the dumping of such solid wastes has been obtained from the [Department of Environmental Resources] .... ”

      . An examination of Section 240.1 of the Model Penal Code (1962), a provision similar to Section 4701(a)(3) of the Crimes Code, provides further clarification.
      Section 240.1(3) of the Model Penal Code states in pertinent part: “A person is guilty of bribery ... if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another any benefit as consideration for a violation of a known legal duty as public servant .. .. ” [This language is identical to 18 Pa.C.S.A. § 4701(a)(3).]
      American Law Institute Comment 8 to Section 240.0 (1980), at page 35, states:
      The phrase ‘legal duty’ ... is intended to be interpreted broadly to apply to any specific and clearly delineated obligation of a public servant .... Possible sources of such a duty include the state constitution, statutes, administrative regulations, executive orders, and developed traditions concerning performance of official functions. The breadth of this concept is limited by the requirement that the duty exist at law and . .. that the actor know of the duty and that the contemplated action would constitute a violation of it.

      . Although Appellant did not file a motion to modify sentence pursuant to Pa.R.Crim.P. 1410, we will review Appellant’s argument on sentencing because the court of common pleas did not advise Appellant on the record of his right to file such a motion with the aid of counsel within ten days of the imposition of sentence, Pa.R.Crim.P. 1405(c)(2)-1405(c)(5); Commonwealth v. Rush, 281 Pa.Super.Ct. 92, 421 A.2d 1163 (1980), and because the Commonwealth did not show that Appellant knowingly and voluntarily waived his right to file the motion. Rush.


source: Caselaw Access Project

license: Public Domain

text:
    444 A.2d 1235
    COMMONWEALTH of Pennsylvania v. Ronald L. HOLLERBUSH, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 24, 1981.
    Filed April 23, 1982.

      Richard K. Renn, York, for appellant.
    Richard H. Horn, Assistant District Attorney, York, did not file a brief on behalf of Commonwealth, appellee.
    Before PRICE, BECK and JOHNSON, JJ.
   BECK, Judge:

Appellant was convicted after trial by jury of rape and kidnapping for his participation in a gang rape and was sentenced to a prison term of a minimum of eight years and a maximum of sixteen years. 18 Pa.C.S.A. Sections 2901, 3121. Post-trial motions were denied. This Court affirmed by per curiam order an appeal brought by new counsel from the judgment of sentence. In so affirming, this Court rejected appellant’s claims that a Commonwealth Petition for Extension of Time under Rule 1100, Pa.R.Crim.P. 1100, was not timely filed and that the lower court’s finding of “due diligence” by the Commonwealth in attempting to bring the appellant to trial within the time required by Rule 1100 was without sufficient support in the evidence. This Court has also rejected appellant’s claim that trial counsel was ineffective in that he failed to preserve for appeal the issue whether appellant’s convictions were based on sufficient evidence.

With the aid of another attorney, appellant next sought relief under the Post Conviction Hearing Act (P.C.H.A.), 19 P.S. Section 1180-1 et seq. (Supp.1980). (Repealed eff. June 27, 1981). We now address appellant’s appeal from the lower court’s denial of his P.C.H.A. Petition.

The only issues raised by appellant in his Petition which were pursued at the P.C.H.A. hearing were claims that appellant’s trial counsel was ineffective. Appellant contends that through ineffective assistance of counsel, he was denied the opportunity to prepare for his Rule 1100 hearing and to call witnesses for the hearing. Appellant also alleges that trial counsel was ineffective in that he failed to move for reconsideration of the sentence, and that he failed to preserve for appeal the issue of the sufficiency of the evidence with regard to both the kidnapping and rape convictions.

In considering appellant’s three claims of ineffective counsel, we are governed by Com. ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), where we held that a court must independently review the record and examine counsel’s stewardship in light of available alternatives. The inquiry ceases and counsel is deemed to have been effective once the court is able to conclude that counsel’s action had a reasonable basis designed to effectuate the client’s interests. Further, counsel is not ineffective in failing to assert a meritless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

In reviewing the claims on this appeal, we are mindful that a “PCHA petitioner has the burden of establishing his grounds for post-conviction relief. . In particular, the burden of establishing the ineffectiveness of trial counsel is on appellant.” Commonwealth v. Sweitzer, 261 Pa.Super. 183, 395 A.2d 1376, 1380 (1978) (citations omitted). We find that appellant has failed to sustain his burden and affirm the order of the lower court.

RULE 1100

In this Amended Petition Under Post Conviction Hearing Act, appellant alleges that the trial court violated his “due process” rights under the 5th and 14th Amendments to the United States Constitution, to a full and fair hearing concerning a Rule 1100 issue when the Court convened the hearing on March 25, 1976, without reasonable advance notice, rather than on its scheduled date of April 8, 1976. He further asserts that his trial counsel was ineffective in that he did not preserve this issue for appeal by timely objection, and by filing an appropriate post-trial motion and brief on this issue.

The circumstances surrounding the Rule 1100 hearing, as revealed by the record, were the following. There were forty-six days between the filing of the criminal complaint against the appellant and his arrest. On March 22,1976, the 180th day after filing of the complaint, the Commonwealth filed a timely Petition to Extend the Time for Commencement of Trial, alleging that the forty-six day period should properly be excluded because appellant had been unavailable. Although the case had been set for trial on March 25, 1976, the trial judge, mistakenly thinking that trial was to begin during the April term, scheduled a hearing on the Commonwealth’s Petition to Extend for April 8, 1976. When the parties appeared in court for trial on March 25, 1976, the Commonwealth moved that the trial judge take testimony forthwith on its Petition. The trial court granted this motion and took testimony on the petition after the following exchange:

THE COURT: . . . Mr. Noll [Appellant’s trial counsel], do you have any serious objections to arguing that rule now?
MR. NOLL: If Your Honor please, as I understand the law, this 180 day Rule spells out what is a reasonable time for a speedy trial. The Commonwealth has had access to a term of court in January of this year.
THE COURT: You haven’t answered my question. Are you willing to argue or take testimony or whatever is necessary to take now rather than waiting until the 8th?
MR. NOLL: Since the Commonwealth has fixed the date to the 8th, I think they are married to that date. I additionally have an application for dismissal that I would ask leave to file at this time which I assume would have the same hearing date fixed.
THE COURT: You are ready to go to trial I take it this term?
MR. SECHRIST [Commonwealth’s counsel]: Yes, we are.
THE COURT: And are you saying you are not ready to go to trial?
MR. NOLL: I’m not saying any such thing. . . .
THE COURT: Unless you have some reason not to argue the 1100 Rule today—I don’t see why we can’t hear it today. It’s not going to take testimony, is it? Is there any testimony to be taken?
MR. SECHRIST: Yes, it will require some testimony with regard to the 1100 Rule.
THE COURT: In what nature?
MR. SECHRIST: There was a considerable lapse of time between the filing of the complaint and the issuing of the warrant. That was all one day. It would be necessary to call an officer to explain the reason for the delay.
THE COURT: All right. Is your client here today?
MR. NOLL: He is, Your Honor.
THE COURT: Under the circumstances, I’ll amend my order on that and we’ll have argument and testimony on the 1100 matter now. I’ll give you an exception. Also, you may file your petition and we’ll hear that as well. We’ll set the hearing forthwith. So under those circumstances, we’ll deem that the Commonwealth has filed an answer thereto.
MR. NOLL: I haven’t had an opportunity to file an answer to this application.
THE COURT: We’ll deem that you filed an answer denying all the allegations. (N.T., 3/25/76, 2, 3)

The Commonwealth’s Petition to Extend, filed March 22, 1976, alleged that despite due diligence, the Commonwealth had experienced delays in serving appellant because the appellant was “unavailable.” At the P.C.H.A. hearing, appellant admitted that he had notice of the Commonwealth’s Petition to Extend a “couple days before March 25, 1976.” (N.T., 12/13/79, 14) At the March 25 Rule 1100 hearing, the Commonwealth called a state trooper who testified that between September 24, 1975 and December 11,1975, he tried on five or six different occasions to serve the complaint at appellant’s home, but that he was “never able to find anyone at home.” (N.T., 3/25/76, 5) After cross examination by appellant’s counsel, the Commonwealth rested its case on the Petition, and the trial judge invited appellant’s counsel to put on testimony. Appellant’s counsel offered no testimony to rebut the Commonwealth’s contention that appellant was unavailable.

At his P.C.H.A. hearing, appellant testified that he was available to be served at his home throughout the period when the Commonwealth alleged him to be unavailable. He further stated that he could have produced four witnesses, his mother, father, sister and a “neighbor lady who’s home all the time” who would have testified that no police car ever came to his house until the day he was finally served with the complaint. He further testified: (1) that his counsel had not fully informed him of the nature and significance of the issue whether or not he had been “available” to be served; (2) that the court had denied appellant’s counsel’s request for more time to prepare for the Rule 1100 hearing.

It should be clear from the outset that adequate and timely notice to the accused of court proceedings is fundamental to the constitutionally guaranteed right to a fair trial. MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960) (To force an accused person to trial at a time when he cannot obtain any witnesses at all falls short of our notion of a fair trial); Cf. United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3rd Cir. 1969), cert. denied, Carey v. Rundle, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970). We can conceive of circumstances where a trial court’s decision to hold a Rule 1100 hearing without prior notice to appellant might violate due process reasonable notice requirements. Assuming arguendo that such a violation did occur in this case, we nevertheless find that the appellant has not met his burden of showing that his trial counsel was ineffective.

It is well settled that this Court must deem counsel to have been effective if we can “conclude that counsel’s actions had a reasonable basis designed to effectuate the client’s interest.” Commonwealth v. Schroth, 495 Pa. 561, 435 A.2d 148, 149 (1981). In the instant case, appellant admits that he and his attorney had prior notice of the Commonwealth’s Petition to Extend. (That Petition stated on its face that the ground for the Commonwealth’s request was unavailability of the defendant.) Appellant admits that he and his attorney had discussed the Rule 1100 issue prior to the March 25, 1976 hearing, although stressing that most of the discussion focused on another aspect of appellant’s Rule 1100 claim. Appellant admits that he was at the Rule 1100 hearing and that he listened to the state trooper’s brief testimony. Appellant admits that at no time, either before the hearing or during the hearing, did appellant ever mention the existence of his proposed witnesses to his attorney. Despite these opportunities, and despite the fact that the trooper’s straightforward testimony required no special legal knowledge to understand, appellant did nothing at the hearing which might have put his attorney on notice of the need to request a continuance.

Contrary to appellant’s contentions at the P.C.H.A. hearing, there is nothing in the record of the Rule 1100 hearing to suggest that appellant’s counsel requested more time in order to prepare. Under these circumstances, trial counsel could reasonably have concluded that his client’s interests would not be served by requesting a continuance, when he did not anticipate that he would have any witnesses to present on this issue on behalf of his client. The failure to call possible witnesses is not per se ineffective assistance of counsel; trial counsel will be deemed ineffective only when it is shown that a defendant had informed the attorney of the existence of the witnesses and that the attorney, without investigation and without adequate explanation, fails to call the witnesses at trial. Commonwealth v. Hagood, 491 Pa. 181, 420 A.2d 401 (1980); Commonwealth v. Williams, 274 Pa.Super. 464, 418 A.2d 499 (1980).

SENTENCE

It is undisputed that trial counsel did not raise any objections to the conduct of the sentencing hearing, nor did he move for reconsideration of appellant’s sentence after that hearing. Appellant does not claim that the sentencing judge failed to observe the guidelines governing sentences for this type of crime; nor does he claim that the sentencing judge failed to consider factors individual to the appellant which would have tended to lighten the sentence. Rather, appellant contends: (1) that the trial court’s reference to appellant’s use of marijuana in his explanation of the sentence indicated that the sentencing judge had based his sentence at least in part on an impermissible consideration, i.e., a personal animus against marijuana use; (2) that the trial judge imposed on appellant a more severe sentence than those imposed upon his accomplices. Appellant now contends that trial counsel was ineffective in his failure to raise these issues at the sentencing hearing or in a motion for a reconsideration of the sentence.

We find no “reasonable basis designed to effectuate the client’s interest,” Commonwealth v. Schroth, supra, to explain trial counsel’s failure to preserve these issues. However, even though appellant has shown that counsel failed to preserve normally significant issues, in order to demonstrate ineffectiveness of counsel entitling him to relief, appellant must show that there is a likelihood that the post-verdict motion would have succeeded had it been made. Commonwealth v. Schroth, supra; Commonwealth v. Rainey, 271 Pa. Super. 240, 412 A.2d 1106, 1110 (1979).

Sentencing is a matter within the sound discretion of the sentencing judge, to be exercised within the statutory guidelines and considerations. When so exercised, the sentence will not be disturbed by an appellate court unless it is so clearly excessive as to constitute an abuse of discretion. Commonwealth v. Kostka, 276 Pa.Super. 494, 419 A.2d 566 (1980); Commonwealth v. Kaminski, 244 Pa.Super. 388, 368 A.2d 776 (1976). We conclude that appellant has raised no issue regarding sentencing which would have had any likelihood of success, either in the trial court or on appeal.

During the pre-sentence investigation, and at the sentencing hearing, the appellant stated that he had been under the influence of marijuana when the crime was committed. The pre-sentence investigation report, which appellant’s counsel examined prior to the sentencing hearing, contained reference to appellant’s juvenile record and history of alcohol and drug use. In his explanation of his sentence, the trial judge emphasized the unusually vicious character of the crime, and took note of appellant’s statement that alcohol and marijuana were involved in the crime. He also stated that he had taken into account the “totality of the circumstances,” which in context was a reference to appellant’s previous record of problems with alcohol and drugs. In light of appellant’s willing and active participation in an unusually brutal crime, set against his personal background, we do not believe that an appellate court would have been justified in finding appellant’s sentence to be excessive. Counsel can not be taxed with ineffectiveness for failing to raise this issue.

Similarly without merit is appellant’s argument that trial counsel should have preserved for appeal the issue whether the disparity between appellant’s sentence and those of his accomplices constituted an abuse of judicial discretion. One of appellant’s accomplices was convicted of rape and kidnapping, and received a prison term of seven and one half to fifteen years. Two others, who pleaded guilty to rape and kidnapping, received terms of five to ten years and three to six years. This is not a situation where the appellant and his accomplices were tried jointly, or where they were tried singly and sentenced by the same judge. The sentencing judge in this case neither tried nor sentenced any of appellant’s accomplices. Where, as here, the sentencing court considered the circumstances of the crime and the particular characteristics of the defendant, the fact that the defendant received a stiffer sentence than other defendants guilty under the same statutory provisions for their respective roles in this gang rape does not in itself constitute grounds for a finding that the appellant’s sentence was excessive. Commonwealth v. Jezorwski, 280 Pa. Super. 178, 421 A.2d 464 (1980). Counsel cannot be held to have been ineffective for failure to raise this issue.

SUFFICIENCY OF THE EVIDENCE

Trial counsel did fail to preserve the issue of the sufficiency of the evidence to convict appellant. Appellant contends that trial counsel was ineffective in that he failed to preserve this issue. Appellant, by his first appellate counsel, raised this same issue in his first appeal to this Court, and it was rejected. According to the Post Conviction Hearing Act, appellant may raise this issue again only if he rebuts the presumption that his decision to take no further appeal from that ruling was made with full knowledge that he could not subsequently raise the same issue again under the P.C.H.A. Appellant offered no such evidence at his P.C.H.A. hearing. Consequently, this issue is barred by the P.C.H.A., 19 P.S. Sections 1180-3(d), 1180-4(a)(2), (c) (Repealed eff. June 27, 1981) (Supp.1980), Commonwealth v. Velasquez, 488 Pa. 244, 412 A.2d 489 (1980); Commonwealth v. Bennett, 472 Pa. 314, 372 A.2d 713 (1977).

We find appellant’s claims of ineffective assistance of trial counsel to be groundless. The order appealed from is affirmed.

      . Commonwealth v. Hollerbush, 256 Pa.Super. 629, 389 A.2d 692 (1978). Although no opinion was written in that appeal, appellant’s claims appear in his brief, No. 296 Harrisburg, March Term, 1977. J. 113/1978.

      . The denial of this application was the subject of the previous appeal to this Court. Commonwealth v. Hollerbush, supra.

      . The crimes of rape (18 Pa.C.S.A. Section 3121) and kidnapping (18 Pa.C.S.A. Section 2901) are felonies of the first degree. Each crime carries a maximum of twenty years imprisonment. 18 Pa.C.S.A. Section 1103(1).

      . 19 P.S. Section 1180-3(d) (Repealed eff. June 27, 1981) (Supp.1980) states: “To be eligible for relief under this act, a person must ... prove the following: ... (d) That the error resulting in his conviction and sentence has not been finally litigated or waived.” 19 P.S. Section 1180-4 (Repealed eff. June 27, 1981) (Supp.1980) states: “(a) For the purpose of this act, an issue is finally litigated if: ... (2) The Superior Court of the Commonwealth of Pennsylvania has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals; . . . (c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.”


author: BECK, Judge: BROSKY, Judge,

text:
    444 A.2d 1241
    SANDRA L. H. v. JOSEPH M. H. In re LANCE A. H. Appeal of JOSEPH M. H.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1981.
    Filed April 23, 1982.

      Walton V. Davis, Gettysburg, for appellant.
    John Eichlin, Clairon, for appellees.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

This is an appeal from a final order awarding permanent custody of two minor children to their mother, from which the father appeals.

Appellant’s claims of reversible error arise primarily from his view that greater weight should have been accorded the testimony of certain of appellant’s witnesses; greater weight should have been accorded what appellant asserts to have been the clear preference of the younger child; and greater weight or a different interpretation should have been accorded the testimony of the treating psychiatrist called as witness for appellant. Finally, appellant claims that the admission into the record of a “Home Study Packet” prepared by a caseworker from the Children and Youth Services of the county of the mother’s residence without verification and without opportunity for cross-examination is error requiring reversal.

TRIAL JUDGE’S TREATMENT OF THE TESTIMONY

Appellant cites G.M.P. vs. A.P., 280 Pa.Super. 372, 421 A.2d 769 (1980); Jones v. Floyd, 276 Pa.Super. 76, 419 A.2d 102 (1980) and Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 (1979) and represents them as requiring the trial court in such cases to write an opinion which discusses all the evidence presented and which states why some is regarded as more persuasive. These cases do not require such an exhaustive opinion as urged by appellant. They do require that the trial judge “give us a thorough analysis of the record . . . . ” Jones v. Floyd, 276 Pa.Super. at 80, 419 A.2d at 104. In addition, the opinion must deal with all “relevant factors” and “important facts.” Commonwealth ex rel. Forrester v. Forrester, 258 Pa.Super. 397, 400, 392 A.2d 852, 854 (1978); Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 237, 312 A.2d 58, 63 (1973). This clearly does not require that the judge discuss the testimony of each witness or that citations to the transcript are required. What is required is an opinion which demonstrates that the trial judge has analyzed the record as a whole and has dealt with significant factual disputes in a manner which will enable the appellate courts to understand the reasons for the decision and to make an intelligent evaluation of the opinion and of the testimony. See, e.g., G.M.P. v. A.P., 280 Pa.Super. at 379, 421 A.2d at 772.

In the instant case, the trial judge has presented us with an opinion which reflects not only a thorough but a deeply concerned analysis of the record as a whole. This court has reviewed the record as a whole and finds that much of'the testimony by the twenty-one witnesses heard in this case is summed up in the following language in the opinion of the trial judge:

. . . [B]oth parents can provide a more than adequate setting for the physical, intellectual, moral and spiritual well-being [of the children].

The .trial judge therefore limited his opinion to those factors which he considered important and relevant as weighing sufficiently to tip this balance in favor of an award of custody to the mother. We find that the record herein, taken as a whole, more than amply supports an award of custody to the mother. The preference of the younger child, asserted by appellant to be a preference to live with the father, is not unequivocally stated in the record of the case. Even had it been clearly stated to be as asserted by appellant, such a preference by a ten-year-old child, while certainly to be considered by the court, is clearly not controlling. The trial judge correctly weighed the preferences of both children as the children represented them to him together with the strong doctrine in Pennsylvanía supporting preservation of family unity and the current authority supporting continuity of child care to the extent possible and where the circumstances warrant it. Finally, the trial judge reviewed the testimony by the treating psychiatrist called as a witness by appellant and found that the testimony taken as a whole did not weigh against an award of custody to the mother, but in fact supported such an award in significant part.

ADMISSION OF THE “HOME STUDY PACKET”

Certain testimony in this case was taken in Clarion County, the home county of the mother, and transcripts of the testimony were forwarded by the Clarion County court to the judge in Adams County who was deciding the matter. Clarion County forwarded with the transcripts a “Home Study Packet” prepared by the Clarion County Children and Youth Services, apparently as a standard procedure in child custody cases. This document was inadvertently admitted as part of the record in the case. The study included an “autobiography” submitted by the mother and her present husband at the request of the caseworker. Appellant asserts that the study, and the autobiographical sections in particular, were prejudicial to his case, and that their admission without opportunity for cross-examination constitutes reversible error.

In addressing this issue in his opinion, the trial judge describes the study as having been of “minimum” value in that there had not been presented by any party any serious question as to the physical adequacy of the home or the environment provided by either party. He found the report to be simply corroborative of other evidence introduced. As to the autobiographical section, the trial judge states that it “was not considered by the Court and in fact was not read in its entirety by the Court.”

It is error for the court to admit reports such as this home study without affording the parties an opportunity to cross-examine the preparer as to its contents, including an opportunity to cross-examine anyone quoted in such reports where the quoted facts are relied upon for any conclusion. The challenged report in the present instance, including the autobiographical section, does contain assertions which, if relied upon by the court and in the absence of an otherwise sufficient record, would require reversal. In the instant case, however, the record excluding the home study packet is, as previously stated, more than adequate to support the award of custody made by the trial judge. The judge states that the study did not weigh in his deliberations and that the autobiographical section was not considered at all. It is apparent from the opinion of the trial judge and from a review of the record that the factors which weigh in favor of the award of custody to the mother do not in any way arise from anything in "the home study packet but rather from the testimony presented to the court. Appellant has not pointed to any specific prejudice claimed to havé arisen from admission of the study, nor does he cite any portion or item of the court’s findings which it is claimed arose from a review of the study. For this reason, we find that although there was error in admission of the “Home Study Packet,” this error in no way influenced the conclusions of the trial judge as to where the best interest of the children lay and was not prejudicial to their interests or to the interests of appellant, and does not require reversal.

CONFERENCES WITH THE CHILDREN

The trial judge held conferences with both of the children which were recorded and transcribed, but at which, by agreement, neither counsel nor the parties were present. In addition, at the urgent request of the younger child, and again by agreement of the parties, the trial judge had a few words with the younger child in the absence of anyone else, and this conversation was not recorded or transcribed. Appellant does not assign these conferences, or any of them, as error, but on the contrary specifically asserts that they were agreed to in the best interests of the children and are not challenged on appeal. Nonetheless, in light of the decisions in Jones v. Floyd, 276 Pa.Super. at 80-81, 419 A.2d at 104 (1980) and the cases cited therein, these proceedings must be examined to ensure that the minor children have received due process in the determination of what is in their best interests. Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). In the present instance, except for the few words above described, the in camera examination of the children was transcribed, and a review of the record of those examinations reveals that they were entirely proper and rationally directed to ascertaining what would serve the best interests of the children. The trial judge described the one minor deviation from these procedures as having involved a concern expressed by the younger child as to a ruling on evidence made by the trial judge. There is absolutely no reason to believe that this brief conversation in any way influenced the decision of the trial judge. This is clearly not a case in which a child’s future was disposed of “in summary fashion” as in Jones v. Floyd or Gunter v. Gunter. As previously stated, the competent evidence of record amply supports the determination made by the trial judge as to where the best interests of these children lay. We will not further suspend the implementation of this well-supported decision on the basis of minor error not affecting the outcome of the case.

The Order appealed from is affirmed.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I concur in the result reached by the majority, however, I wish to express my view concerning our standard of review. We have very recently stated in Robert H. H. v. May L. H., 293 Pa.Super. 431, 439 A.2d 187 (1981):

Our scope of review in custody disputes is very broad. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976). We will review the record very closely not with a mind toward usurping the fact-finding function of the trial court, but with a responsible eye searching to ferret out what is in the “best interest of the children.” In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979). Accordingly, we are not bound by the deductions and inferences made by the judge who heard the dispute. Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Ulmer v. Ulmer, 231 Pa.Super. 144, 331 A.2d 665 (1974). Thus, we make an independent review of the evidence and render an independent judgment which will assure that the Commonwealth’s justifiable concern for the health and safety of its children is met. Spells v. Spells, 250 Pa. Super. 168, 378 A.2d 879 (1979). Our review, therefore, requires not only a thoroughly developed and complete record, Augustine v. Augustine, 228 Pa.Super. 312, 324 A.2d 477 (1974), but a comprehensive and well-reasoned opinion which analyzes the facts disclosed in the record in a manner which clearly demonstrates the necessity for placing custody with either the petitioner or respondent. Martincheck v. Martincheck, 262 Pa.Super. 346, 396 A.2d 788 (1979). Hence, we shall engage in a broad and comprehensive review of the record and reach an independent decision regarding the placement of the children in the custody of either party. We shall approach this review with an open mind and will not adhere to an abuse of discretion standard. Simply stated, our broad scope of review encompasses but is not limited to the narrow scope of review described by the term abuse of discretion. Commonwealth ex rel. Berman v. Berman, [289] Pa.Super. [91], 432 A.2d 1066 (1981). To reason in any other manner contradicts the very essence of our standard of review in custody cases. In re Jennifer Lynn Arnold, Appeal of Merrill S. Arnold, [286] Pa.Super. [171], [176], 428 A.2d 627, 629 (1981) (HOFFMAN, J., Concurring Opinion); Commonwealth ex rel. E. H. T. v. R. E. T., [285] Pa.Super. [444], [457], 427 A.2d 1370, 1376 (1981) (HOFFMAN, J., Concurring Opinion). [Footnote omitted.]

(293 Pa.Superior Ct. at 433, 434, 439 A.2d 188, 189.)

I would hold that our scope of review is very broad in nature. Accordingly, I agree with Judge Hoffman when he said in Commonwealth ex rel. E. H. T. v. R. E. T., 285 Pa.Super. 444, 457, 427 A.2d 1370, 1377 (1981) (HOFFMAN, J., Concurring Opinion):

Thus, if we are indeed to review a custody order pursuant to the “abuse of discretion” standard, then we may not disturb that order unless the appellant meets the “heavy burden” of convincing us that the lower court ignored or misapplied the law, exercised a manifestly unreasonable judgment, or acted out of partiality, prejudice, bias, or ill-will. This minimally exacting level of appellate scrutiny, while proper in other contexts, [footnote omitted] is manifestly inappropriate in cases in which our scope of review purports to be of the broadest type. Accordingly, I believe that it is time for us to disavow a standard which is inconsistent with both our responsibility and our actual practice of closely scrutinizing custody decisions [footnote omitted],

(Emphasis added.) See also Commonwealth v. Siriani, 286 Pa.Super. 176, 428 A.2d 629 (1981) (HOFFMAN, J. concurring), Commonwealth ex rel. Berman v. Berman, supra.

      . The preference of a child is one factor to be considered, and to be accorded varying weight depending upon the age, intelligence and maturity of the child, but it is clearly not controlling. See Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa.Super. 444, 452, 427 A.2d 1370, 1374 (1981) and cases cited therein.

      . See Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 327 328, 421 A.2d 157, 160-161 (1980) and cases cited therein.

      . Id.

      . See Wood v. Tucker, 231 Pa.Super. 461, 463, 332 A.2d 191, 192 (1974) and cases cited therein. In each of these cases, the hearing judge had relied upon reports not subject to cross-examination.


author: JOHNSON, Judge:

text:
    444 A.2d 1246
    COMMONWEALTH of Pennsylvania v. Heinz BUECHELE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1981.
    Filed April 23, 1982.

      Wallace C. Worth, Jr., Allentown, for appellant.
    William H. Platt, District Attorney, Allentown, for appellee.
    Before CERCONE, President Judge, and SPAETH and JOHNSON, JJ.
   JOHNSON, Judge:

On September 8, 1979, shortly after midnight, appellant was stopped by the police of Salisbury Township after an automobile chase. An officer of the neighboring Allentown police responded to a call for help put out by the Salisbury police, and appeared on the scene where the Salisbury police had stopped appellant, who appeared to be intoxicated. Within a few minutes the Allentown police officer was called back down the road to investigate a report of a hit and run which had occurred in Allentown. The owner of a parked car had heard the sound of a collision and had run outside and seen the make and license number of the car which had hit his car and proceeded without stopping. The Allentown police officer filled out a citation form, based on the information supplied by the victim of the hit and run. The citation charged appellant with the appropriate violation of the Vehicle Code. The citation was “turned in” to the Allentown District Justice, who forwarded it by certified mail to appellant. A few days later, September 21, 1979, appellant came to the District Justice’s office and paid the fine—the standard fine for a summary offense—$25.00 plus $10.00 costs, totalling $35.00.

Meanwhile, on September 8, 1979, a criminal complaint was issued by the Salisbury police against appellant, for drunk driving, a misdemeanor of the third degree, and various other summary offenses. That same day an arraignment was held by a District Magistrate, following which the appellant was released. A preliminary hearing was held on November 5, 1979, before the District Justice of Salisbury. Because the magistrate found a prima facie case against appellant for the misdemeanor, all charges were returned to court. The Comment to Pennsylvania Rule of Criminal Procedure 51 states: “If one or more of the charges is a misdemeanor or felony, the summary offense, if known at the time, shall be charged in the same complaint, and the case shall proceed as a court case under Chapter 100 of these Rules. See Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), addendum opinion on remand 455 Pa. 622, 314 A.2d 854 (1976).” Pa.R.Crim.P. 51, 42 Pa.C.S.A. (Pamp.1981). The transcript was sent by the district justice to court on November 5, 1979.

In January, 1980, appellant filed his omnibus pre-trial motion for relief which, after a hearing in the Court of Common Pleas of Lehigh County, was denied by the trial judge.

It is this denial from which this appeal is brought. Although a denial of pre-trial motions is not normally a final order, in cases where the pre-trial motion is a motion to quash on double jeopardy grounds, the denial of the motion is final and appealable. See Commonwealth v. Fields, 491 Pa. 609, 421 A.2d 1051 (1980); Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). Because appellant’s pre-trial motion was based on our Supreme Court’s decision in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), addendum opinion after remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), we therefore must entertain the appeal.

Appellant asserts that because he had pleaded guilty to the “hit and run” summary offense, prosecution for charges arising out of the same criminal episode is barred. Appellant contends that prosecution is barred by the constitutional doctrine of double jeopardy, by the rule of Campana, and by Section 110 of the Crimes Code, 18 Pa.C.S.A. § 110 (Purdon 1973).

Appellant is asking us to rule that an allegedly drunk driver who has been stopped by the police after a chase in which numerous traffic violations have occurred, in circumstances where a citation for one summary offense is entered in one township, and a criminal complaint for a misdemean- or and other summary offenses filed in another township, who quietly pays the fine according to the first citation, is absolved from prosecution for the other violations.

This we shall not do. Our case and our statutory law will not be construed to permit such a mockery of the criminal justice system.

In Commonwealth v. Holmes, 480 Pa. 536, 391 A.2d 1015 (1978), our Supreme Court stated that the purpose of the Campana rule is to avoid government harassment of a defendant due to successive trials, and to assure finality of litigation without unduly burdening the judicial process with repetitious litigation. Id., 480 Pa. at 540-541, 391 A.2d at 1017. In Holmes the defendant was charged with the murder and robbery of one victim and then with aggravated assault on another victim, both charges arising out of the same incident, where he shot one victim and then the other. The court held that even though the defendant had not requested consolidation, the Commonwealth should have brought the charges in one proceeding. The trial and guilty verdict on the charge of murder barred the subsequent trial on the other charges. LARSEN, J., dissenting, found that the subsequent prosecution was not barred, under a.n exception in 18 Pa.C.S.A. § 110, namely § 110(l)(iii)(A), which states that:

the former prosecution will bar the second prosecution for the same conduct unless “the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil. . . . ”

Id, 480 Pa. at 542, 391 A.2d at 1018.

Similarly, in Commonwealth v. Hanlin, 272 Pa.Super. 313, 415 A.2d 905 (1979), the defendant had been cited for drunk driving, and also for driving without a license, a summary offense. The district magistrate, at a hearing, discharged the defendant on the summary offense, but bound him over on the misdemeanor. The defendant, on appeal, raised the Campana issues presented now before us. This court held that the two applicable sections of the Vehicle. Code involve proof of different facts and seek to prevent different harms or evils, and therefore prosecution on the misdemeanor charge was not barred. See 18 Pa.C.S.A. § 110(l)(iii)(A).

In Commonwealth v. Edwards, 264 Pa.Super. 223, 399 A.2d 747 (1979), a case on which appellant relies, the defendant was charged with theft and conspiracy, and subsequently with unsworn falsification to authorities (all three are misdemeanors or felonies). He pleaded guilty to the falsification charge, and was then tried on the theft and conspiracy charges. This court discharged the defendant on the basis of section 110, finding that all the offenses occurred in the same episode and that the Commonwealth should have moved to consolidate them. This case is not authority for the situation now before us. Edwards involved violations of the Crimes Code. Paying a traffic ticket to a district magistrate’s office is hardly the type of former prosecution resulting in a conviction as is defined in Sections 109 and 110. The case law which is more apposite to the situation before us is that involving Vehicle Code violations.

The trial court relied in its opinion on Commonwealth v. Bartley, 262 Pa.Super. 390, 396 A.2d 810 (1979). In that case the defendant, at a preliminary hearing, pleaded guilty to operating a motor vehicle without a license and paid a fine of $60.00. He waived the other charges, reckless driving and driving under the influence of alcohol, to Common Pleas for a jury trial. Then he moved to quash the information as to those charges, basing his motion on section 110.

This court held, in Bartley, that although the charges arose out of the same episode, the appellant had caused the charges to be separated by his own actions at the preliminary hearing. The court concluded:

Section 110 is intended to prevent harassment by the prosecution; it is not intended to afford a defendant with a procedural expedient to avoid a prosecution. See Commonwealth v. Green [232 Pa. Super.Ct. 134, 335 A.2d 493 (1975) ] (defendant by silently acquiescing in the separation of the charges had waived his claim under section 110).

262 Pa.Super. at 396-397, 396 A.2d at 813 (emphasis added).

A charge of hit and run does not require proof of the same facts as a drunk driving charge. Hit and run and drunk driving statutes are aimed at different perils. Therefore, in this case, the exception in section 110 applies. Furthermore, payment of a traffic ticket, even though the payor signs a form saying he pleads guilty, is hardly the former prosecution resulting in a conviction or a plea of guilty accepted by the court referred to in 18 Pa.C.S.A. §§ 109, 110.

Sections 109 and 110 of the Crimes Code refer to a plea of guilty accepted “by the Court.” The Rules of Criminal Procedure on summary offenses, i.e. Chapter 50, refer to citations issued by an “issuing authority”, which is defined in Pa.RCrim.P. 3 as “any public official having the power and authority of an alderman, justice of the peace, magistrate or district justice.” The same section defines “court” as a “court of record.” Pa.R.Crim.P. 51 provides for the issuance of a citation by an issuing authority. Pa.R.Crim.P. 56 describes the procedure for receipt by the issuing authority of a plea of guilty in response to a citation. Nothing in these rules raises this procedure to the level of a court case.

Thus, the guilty plea in the magistrate’s office is not a “plea of guilty accepted by the court.”

Appellant contends that each officer involved in the charges against him knew of. the other charges brought by the other. This is not certain. The fact that the Allentown police officer was present for a few minutes when appellant was first stopped by the Salisbury police, and then departed to pursue another matter (which turned out to involve the same driver), does not prove that the Allentown officer knew what charges were to be brought against appellant by the Salisbury police. The Campana rule is addressed to different charges which are known at the same time. All the charges known to the Salisbury police were included in the criminal complaint filed by them. The Allentown police cited appellant for the offense reported to them by the victim.

Pa.R.Crim.P. 21 provides in part:

Rule 21. Venue
All criminal proceedings shall be brought before the issuing authority for the magisterial district where the offense is alleged to have occurred or before an issuing authority on temporary assignment to serve such magisterial district, subject, however, to the following exceptions:
(c) Where any offense is alleged to have occurred within 100 yards of the boundary between two or more magisterial districts of a judicial district, the proceeding may be brought in either or any of the magisterial districts without regard to the boundary lines of any county.

The citation for the hit and run was properly issued by the magistrate in Allentown. The other offenses, occurring at least half a mile away, were charged by the Salisbury police, and the charges were properly issued by the Salisbury magistrate.

To summarize: section 110(1) does not bar this prosecution because (1) there was no former prosecution resulting in a conviction as defined in section 109 (i.e. “a plea of guilty accepted by the court”); (2) there was no prosecution in the mere issuance of a Vehicle Code citation by an issuing authority; (3) the Allentown magistrate did not know of the Salisbury charges; (4) the citations and charges were issued by magistrates from different districts; (5) the summary offense for which defendant paid the fine does not require proof of the same facts as the other offenses and the misdemeanor; (6) the law defining hit and run is intended to prevent a substantially different harm from that defining drunk driving. Lastly, we reiterate that the purpose of the double jeopardy doctrine and of the rule of Campana is to avoid harassment of a defendant by the government. Issuance by a district magistrate of a citation for a summary offense violating the Vehicle Code is not a prosecution or a trial which causes the anxiety and strain to a defendant, or which can be viewed as harassment by the government, such as is prohibited by our system of justice.

The trial court did not err in denying the motion to quash. The denial of the motion to quash is affirmed.

SPAETH, J., concurs in the result.

      . Act of June 17, 1976, P.L. 162, No. 81, § 1, as amended; 75 Pa.C.S.A. §§ 101-9301 (Purdon 1977 & Supp.1981). Hit and run is defined in 75 Pa.C.S.A. § 3745, accidents involving damage to unattended vehicle or property.

      . See 75 Pa.C.S.A. § 6502.

      . Driving under the influence of alcohol or controlled substance, 75 Pa.C.S.A. § 3731.

      . 75 Pa.C.S.A. §§ 3112(a)(3)(i), 3323(b), 3714, 3733(a).

      . In Campana our Supreme Court held that a prosecutor must bring in a single proceeding all known charges against a defendant arising from a single criminal episode.

      . The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, as amended; 18 Pa.C.S.A. §§ 101-7505 (Purdon 1973 & Supp.). 18 Pa.C.S.A. § 110 provides:
      § 110. When prosecution barred by former prosecution for different offense
      Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
      (1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:
      (i) any offense of which the defendant could have been convicted on the first prosecution.
      (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; or
      (iii) the same conduct, unless:

        (A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil; or
      (B) the second offense was not consummated when the former trial began.
      (2) The former prosecution was terminated, after the indictment was found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.
      (3) The former prosecution was improperly terminated, as improper termination is defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.

      . 75 Pa.C.S.A. § 1501.

      . 18 Pa.C.S.A. § 3921.

      . Id § 903.

      . Id § 4904.

       Section 1.3(d) of the ABA Standards Relating to Joinder and Severence [sic] provides:
      (d) Entry of a plea of guilty or nolo contendere to one offense does not bar the subsequent prosecution of a related offense. A defendant may enter a plea of guilty or nolo contendere on the basis of a plea agreement in which the prosecuting attorney agreed to seek or not to oppose dismissal of other related charges or not to prosecute other potential related charges.
      ABA Standards Relating to Joinder and Severence, [sic] § 1.3(d) (Approved Draft 1968).
      The commentary to this section of the ABA Standards states that if the defendant pleads guilty or nolo contendere to one charge, he has “severed the offenses—as far as their disposition is concerned— and is in no position to complain about a subsequent trial of a related offense.” ABA Standards Relating to Joinder and Severance, § 1.3(d) (Commentary).

      . See e.g., Commonwealth v. Spurgeon, infra n. 15; Commonwealth v. Fries, 284 Pa.Super. 421, 426 A.2d 119 (1981); Commonwealth v. Masterson, 275 Pa.Super. 166, 418 A.2d 664 (1980); Commonwealth v. Hanlin, supra; Commonwealth v. Bartley, infra; Commonwealth v. Erisman, 247 Pa.Super.Ct. 476, 372 A.2d 925 (1977).

      . 75 Pa.C.S.A. § 1501.

      . Id. § 3714.

      . Id. § 3731.

      . See also, Commonwealth v. Spurgeon, 285 Pa.Super. 563, 428 A.2d 189 (1981), petition for allowance of appeal denied May 5, 1981, (acquittal of reckless driving charge did not bar prosecution for other Vehicle and Crimes Code offenses where each required proof of different facts and each offense designed to prevent a different harm or evil).

      . See 18 Pa.C.S.A. §§ 109(3), 110(1).

      . Compare Commonwealth v. Masterson, 275 Pa.Super. 166, 418 A.2d 664 (1980), where this court held that the defendant’s discharge at a Philadelphia Traffic Court on a charge of disregarding a red light did not bar a subsequent prosecution for involuntary manslaughter arising out of the same episode, as there was no single court in which the Commonwealth could have filed both the summary and misdemeanor charges.

      . Compare Justice Black’s oft-quoted words from Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957):
      [T]he state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity....

        See Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Commonwealth v. Campana, supra.


text:
    444 A.2d 1251
    IN re CUSTODY OF J. S. S. Appeal of A. S. SANDRA J. S. v. ALVERTA S.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1982.
    Filed April 23, 1982.

      Charles James Fonzone, Allentown, for appellant.
    John J. Keller, Allentown, did not file a brief on behalf of Sandra S., participating party at No. 1794 and for appellee at No. 1795.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   JOHNSON, Judge:

This is an appeal from an order of the Court of Common Pleas awarding custody of Jeremy S. to Sandra S. who is his grandmother. The appellant, Alverta S., is the great-grandmother of the child. The child’s mother was killed in a car crash in May 1980 when the child was less than one year old.

The facts of this case are as follows. The child’s mother, Debra, conceived the child in 1978 when she was sixteen years old, still in high school and living with her mother, Sandra. There was testimony that Sandra urged Debra to abort the pregnancy. Debra did not wish to do so, and moved to her grandmother Alverta’s house where she lived until her accidental death in 1980. Her baby, Jeremy, the child whose custody is at issue in this case, has therefore lived with Alverta, his great-grandmother, since his birth in May 1979.

At the time of the hearing in October 1980, Sandra was 36 years old. She was living with her 17 year old son and 49 year old paramour in a second floor apartment. She is the eldest daughter of Alverta. She has worked in house-keeping at nursing homes since leaving her mother’s home. Her two children, Debra and Willard, were born of a liaison with a married man, since deceased. She has lived with her paramour, Roger, for four and one half years, and been involved with him for about nine years.

Of Roger we know only that he has not been employed for about eight years. There was conflicting testimony as to his views about child-rearing and as to his relationship with Sandra’s son, Willard. Of Willard all we know is that he is in eleventh grade and plays football.

Alverta is 55 years old. She owns a large house with a large yard. She was raised by maternal grandparents, married at 18 and gave birth to nine children before her husband died. She has never worked outside the home. Currently the adults in her household give her their paychecks, with which she manages the household. The household consists of about a dozen people of different generations and includes two of Alverta’s daughters, a daughter-in-law, and their respective children of grade school age. The only men are Harold Whelan, the 38 year old son of Alverta’s former paramour, and a nephew of Harold who is 22. Harold appears himself to have had a sexual relationship with Alverta in the past. Harold works as a garage mechanic and also helps to maintain the house of which he is a part owner together with Alverta and two of her daughters. Harold testified, as did other members or former members of the household, that Jeremy is loved and well taken care of in Alverta’s household.

The judge awarded custody to Sandra essentially (1) because he was “concerned with the large number of people residing with Alverta”, (2) because he was “concerned with exposing the child to the open sexuality of the Alverta S. household” and (3) because of the lack of “any type of steady relationship among men and women” in Alverta’s household as compared to Sandra’s. See slip op. at 5-6, Nos. 80-C-1955 & 80-C-2027 (C.P. Lehigh County, June 18, 1981).

In custody cases the scope of our review is very broad. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981). We do not usurp the fact-finding function of the trial court, but we are not bound by the deductions or inferences made by the trial judge from the facts he has found. We need not accept a finding which has no competent evidence to support it, but are instead required to make an independent judgment based on the evidence and testimony, and make such order on the merits of the case as to do right and justice. See Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1323 (1979), and cases cited therein. So as to facilitate this broad review, we consistently emphasize that the hearing court must provide us with a complete record and a comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court’s ultimate decision. Garrity v. Garrity, supra; Guelich v. Guelich, 282 Pa.Super. 621, 425 A.2d 848 (1980). When the hearing judge fully complies with these requirements, his decision is not reversed unless he has abused his discretion. Commonwealth ex rel. Bendrick v. White, 403 Pa. 55, 169 A.2d 69 (1961); Commonwealth ex rel. E. H. T. v. R. E. T., 285 Pa.Super. 444, 427 A.2d 1370 (1981).

In custody cases the best interests of the child are the most important consideration. All other considerations are deemed subordinate to the child’s physical, intellectual, emotional, moral and spiritual well-being. See Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 444, 292 A.2d 380, 383 (1972); In re Snellgrose, 432 Pa. 158, 163, 165, 247 A.2d 596, 599, 601 (1968); Jon M. W. v. Brenda K., 279 Pa.Super. 50, 54, 420 A.2d 738, 740 (1980); Commonwealth ex rel. Williams v. Williams, 229 Pa. Super. 327, 330, 324 A.2d 540, 542 (1974); Commonwealth v. Kraus, 185 Pa.Super. 167, 170, 138 A.2d 225, 227 (1958). To affirm the order of the lower court, therefore, we must be persuaded that its decision comports with the best interests of the child. Additionally, each party has the burden of proving that the best interests of the child will be served by the placement of the child with her. Beichner v. Beichner, 294 Pa. Super. 36, 439 A.2d 737 (1982).

For the reasons given below, we find that Sandra did not meet this burden, that the record is inadequate, that the lower court’s opinion did not sufficiently consider and analyze all the testimony, and that the lower court drew conclusions that are either not based on, or are controverted by, the testimony.

These defects are all intertwined. We shall therefore discuss them in terms firstly of the insufficient information in the record, which bears on the judge’s having reached conclusions which had no facts to support them, and secondly in terms of what is in the record which the judge did not treat in his opinion or seemed to disregard in making his decision.

In Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981), we remanded the case for more detailed findings of fact and a more comprehensive opinion. One of the deficiencies which we noted in Hugo was that the husband of the person to whom custody was awarded by the trial court was not present when the social worker visited the home, nor did he testify at the custody hearing. We decided that without more information about the relationship between the child and the man in question, the lower court had an insufficient basis for its conclusion that the home was suitable. Id., 288 Pa.Superior Ct. at 7, 430 A.2d at 1186.

The same defect exists here. We know from the record that at the time of the hearing Sandra had lived with Roger for about four years, and that he had not worked for eight years. Sandra testified that on the day of the hearing he was visiting his mother who was sick, and yet that he did want Sandra to have Jeremy. Similarly, Sandra’s son Willard, though not in school on the day of the hearing, did not attend the hearing. Nor was Willard ever interviewed by the case worker. We cannot affirm an award of custody to a family unit where two-thirds of that unit are not seen or examined before the court, or where there is no adequate competent testimony about them presented to the court, so that the court may make a well-founded decision.

Additionally, in Hugo this court noted that the social worker visited the home of the mother and “was able to comment on the child’s surroundings and interaction with his mother.” Id. This element was absent in the case before us now. The case worker did not, on her single visit to Sandra’s home, observe any interaction between Sandra and Jeremy. We find this to be a substantial defect.

In Beichner v. Beichner, 294 Pa.Super. 36, 439 A.2d 737 (1982), in Jones v. Floyd, 276 Pa.Super. 76, 419 A.2d 102 (1980), and in Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976), we reversed and remanded when the record lacked, inter alia, disinterested testimony from a social worker, pastor or psychologist about the parties. In this case the only witnesses for Sandra at the first hearing were her landlady, who testified that Sandra’s apartment was always clean, and the owner of a day care center who testified about the program at the center where Sandra said she would place Jeremy during the day. The latter person testified that she did not know Sandra and did not know how Sandra would discipline Jeremy. The witnesses for Alverta consisted of family members and a neighbor. These testified to Jeremy’s being loved and well cared for. The trial court, after the hearing, ordered an investigation to be made by the Lehigh County Department of Children and Yputh Services, with costs to be shared by Alverta and Sandra. A caseworker from Pinebrook Services for Children and Youth in Allentown did the court-ordered study of Alverta’s and Sandra’s households on behalf of the Lehigh County agency. (See Brief for Appellant at 5.) She testified at the second hearing. The facts supplied in both her testimony and her report chiefly concerned the living arrangements of each household and the family history of the parties.

Although the case worker’s report arguably satisfies the letter of the Beichner and Floyd requirement, it does not satisfy the spirit. It lacks any basic information about the atmosphere of Sandra’s household and how Jeremy would adapt to it, and it lacks any information about the relationship between Sandra and Jeremy. Instead it contains conclusions which were shown on cross-examination not to be based on fact. For example, with reference to her conclusion, adopted by the court, that the atmosphere in Alverta’s household was one of open sexuality because women who entertained men had double beds, the testimony on cross-examination was as follows:

A. When we were going through the home and looking at the rooms, she indicated to me that Jean had a single bed and was sleeping in the same room as two of her children, and indicated that she was no longer interested in men.
Q. And that’s how you translate that into what you’ve typewritten?
A. And also that Barbara had a boy friend and she was the only female in the home that had a room to herself and a double bed.
Q. And did she tell you all of this at one time?
A. In the course of the conversation while touring the house, yes.
Q. And how long was that conversation?
A. While touring the house. I would say it took us approximately fifteen minutes to tour the house.
Q. And do you recall specifically when she told you those two separate facts?
A. We went to the two bedrooms, one right after the other, so it would have been in that period of time.
Q. And she told you basically what?
A. That Jean had a single bed and was sleeping in the room with two of her children because she was no longer interested in men, and indicated that Barbara had a double bed and she was seeing someone.
Q. And did she tell you that’s why she had a double bed?
A. I can’t say that she actually said that’s why she had a double bed, no.
Q. But you agree that your typewritten statement would indicate that?
A. She alluded to the fact, yes, and that’s what’s in my report.
Q. Well, there’s no allusion at all in your typewritten statement. You say, “Barbara, for example, has private room and double bed because she is presently dating someone.”
A. Yes.
Q. And is your recollection clear then that it was that matter of factly said to you, or is that a conclusion you arrived at?
A. She did present the two facts one right after the other.
Q. And your fertile imagination put them together?
MR. KELLER: Objection.
THE COURT: The objection is overruled.
BY MR. FONZONE:
Q. You may answer.
A. Well, since she stated the two facts one right after the other, yes, I put them together.

Despite this testimony, the trial court adopted the conclusion of “open sexuality” as well as the caseworker’s unsubstantiated conclusion that the house was “overcrowded” with people who had “undefined roles.”

The record shows that the lower , court’s opinion and order were dated June 18, 1981. Notice of appeal was filed on July 9, 1981. On June 25, Alverta’s counsel submitted a petition to the trial judge for reconsideration of the order because of previously unavailable evidence in the form of the opinion of Jeremy’s physician that placing Jeremy with Sandra would be against Jeremy’s best interests. This petition was denied on July 6, 1981. On June 29, the physician in question wrote a long and detailed letter to the judge expressing, with reasons, his dismay at the custody order. (This letter was filed on July 31 and is part of the record.) Although we fail to see why counsel did not inform himself as to the possibility of the availability of this testimony before the hearing, we do not condone the trial judge’s summary denial of the petition, particularly in view of the information, observations and opinions presented to him by the physician and of his responsibility to assure himself that his decision be in Jeremy’s best interest. On remand, this error should be corrected.

Thus, although in this case there was ostensibly some evidence from a disinterested witness, this evidence was inadequate. On remand more information should be made available to the court in the form of testimony, expert or otherwise, with regard to the relationship between Jeremy and the people in the Alverta’s household and between Jeremy and those in Sandra’s household. See Commonwealth ex rel. Michael R. v. Robert R. R., 293 Pa.Super. 18, 437 A.2d 969 (1981), where we noted, inter alia, the absence of any analysis of the effect of the mother’s relationship with her new paramour on the children; Gunter v. Gunter, supra, where we remarked on the absence of testimony about the mother’s relationship with her paramour.

One of the most important elements for consideration in custody cases is continuity of the child’s environment. In Commonwealth ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 66 A.2d 300 (1949), our Supreme Court awarded custody of a four-year-old to her foster parents. The court said:

A child of two years of age or under will form new attachments quickly if treated kindly by those into whose care it is given. In that respect it resembles a young tree whose roots have not yet taken deep hold in the nourishing earth, but when a child is much beyond the age of two years, it becomes strongly attached to those who stand in parental relationship to it and who have tenderly cared for it. Its bonds of affection have become so strong that to sunder them suddenly may result not only in the child’s unhappiness, but also in its physical injury. * * * Nothing could be more cruel than the forceable separation of a child from either its real or foster parents by whom it has been lovingly cared for and to whom it is bound by strong ties of affection.

362 Pa. at 97, 66 A.2d at 306. See also In Interest of Tremayne Quame Idress R, 286 Pa.Super. 479, 429 A.2d 40 (1981); Pamela J. K. v. Roger D. J., 277 Pa.Super. 579, 419 A.2d 1301 (1980); Gunter v. Gunter, supra.

The trial court in placing Jeremy with Sandra gave no consideration whatsoever in its opinion to the fact that it was uprooting this young child from the home he had lived in since birth. This was error, and should be corrected on remand. See e.g., Ray v. Ray, 293 Pa. Super. 216, 438 A.2d 614 (1981), where one of the factors to be included in a hearing after remand was the effect on the children of a change in custody.

In addition to a complete record we also need a comprehensive opinion which shows a searching and thorough analysis of all the testimony, and conscientious and independent reasoning. See, e.g., Ray v. Ray, 293 Pa. Super. 216, 438 A.2d 614 (1981) (remanded for additional evidence, including the current living conditions of each party and the effect on the children of a change in custody, and for a comprehensive and analytical opinion addressing the fitness of the parties, the credibility of the witnesses, the home surroundings of the parties and the care and condition of the children). See also Commonwealth ex rel Michael R. v. Robert R., 293 Pa.Super. 18, 437 A.2d 969 (1981); Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981); In re Custody of White, 270 Pa.Super. 165, 411 A.2d 231 (1979); Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976).

In its opinion the trial court discusses the physical arrangements of the two households, and finds that both are equally clean. He decides, however, that Alverta’s house is overcrowded. This conclusion had been reached by the case worker in her report. On cross-examination she admitted that were the house twice as large she would still find it objectionable. The judge stated further that Jeremy would “receive much more individual attention and guidance” in Sandra’s home. This shows a disregard for the fact that in Alverta’s home he would be with Alverta during the day and in Sandra’s home he would be at a day care center all day. We do not see “more individual attention and guidance” forthcoming in Sandra’s home based on these facts.

The origin of the judge’s view of the “open sexuality” of Alverta’s household is discussed supra at pp. 1254-1255. We would add at this point, however, some words by Judge SPAETH dissenting in Commonwealth ex rel. Grimes v. Grimes, 281 Pa.Super. 484, 422 A.2d 572 (1980), which are quoted by Judge BROSKY in Robert H. H. v. May L. H., 293 Pa.Super. 431, 436, 439 A.2d 187, 190 (1981):

Everyone develops a code of personal conduct. It does not follow that one is entitled to impose that code on others, or penalize those who do not conform to it. Especially in a child custody case is it important that the hearing judge distinguish between his personal code of conduct, and his determination of what is in the children’s best interest. One may believe, with the utmost conviction, that certain conduct is wrong, and yet it may be that that belief should have little or no part in determining who should have custody of the children. A judge may believe that “lips that touch liquor shall never touch mine,” but he is not for that reason to deny custody to a mother who drinks. A judge may be a devout churchgoer, but he is not for that reason to deny custody to a mother who does not go to church. Or ... a judge may believe that it is immoral for an unmarried woman to have sexual intercourse, but he is not for that reason to deny her custody of her children.

Commonwealth ex rel. Grimes v. Grimes, 281 Pa.Super. at 498, 422 A.2d at 579. From the trial court’s opinion, relying heavily on the caseworker’s report and testimony and ignoring almost entirely the rest of the testimony at trial, we are not convinced that the trial court overcame the hurdle of his disapproval of Alverta’s household in order to consider where Jeremy would be happier and more loved and better cared for. The judge’s view that privacy for those who have boyfriends is a “reward for promiscuity” is not the only inference to be drawn, nor is it based on anything but the caseworker’s opinion. See pp. 1254-1255, supra.

The judge’s next conclusion was that Jeremy would be harmed by growing up in Alverta’s household where there was no “steady relationship between men and women.” We understand the judge’s view that an ideal situation may be to grow up under the umbrella of such a relationship. The judge assumes that the relationship between Roger and Sandra is such a relationship, from the mere fact that they have lived together for a number of years. But from the record that is the only fact that is shown. There is testimony that Roger and Willard’s son do not get along. And although there are no married couples in Alverta’s household there is no evidence that there is not a loving, warm, contented atmosphere there. The judge’s conclusion is based on the bare fact that Roger lives with and is supported by Sandra. He sees a “strong family structure” in Sandra’s household and ignores what appears to be the closely-knit family structure of Alverta’s household. As we said in Gunter, “[pjerhaps the . . . home is more stable, but the record does not show that it is.” 240 Pa.Super. at 397, 361 A.2d at 315.

The judge also concluded that Jeremy’s sense of security would be harmed by the number of adults supervising and disciplining him. “For a young child to be secure, he must have only a limited number of authority figures and one distinct set of guidelines for him to master. With so many authorities [as there are in Alverta’s household], the child may never be quite sure what is expected of him and his sense of self will be harmed.” This conclusion again was inspired by the caseworker’s report, and assumes that the various adults in Alverta’s household all have different rules and expectations, and that those in Sandra’s have the same. The record does not provide a basis for these assumptions.

In custody cases, we have on occasion held that the child should be represented by counsel. See Act of July 9, 1976, P.L. 586, No. 142 § 2, 42 Pa.C.S.A. § 6337, which provides that in juvenile proceedings a child should be represented by counsel if the child’s interests are in conflict with another party’s interests. In Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974), allocatur denied, January 6, 1975, we reversed and remanded directing the court below to appoint counsel for the child and to conduct a new hearing. See also In Re Davis, 288 Pa.Super. 453, 432 A.2d 600 (1981), petition for allowance of appeal granted, October 16, 1981; In Interest of Clouse, 244 Pa.Super. 396, 368 A.2d 780 (1976), petition for allowance of appeal denied, May 16, 1977. In Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 433 A.2d 1363 (1981), petition for allowance of appeal denied, October 26, 1981, this court held that it was not an abuse of discretion for the lower court to have refused to appoint counsel for the child, and declined to remand for the appointment of counsel in order not to prolong the litigation. Id., 289 Pa.Superior Ct. at 518, 433 A.2d at 1375. Here, we raise the issue, but leave it to the lower court’s discretion on remand to determine whether the appointment of separate counsel to represent Jeremy would better insure the best interests of the infant child.

The order awarding custody of Jeremy S. to Sandra S. is reversed. The case is remanded for further proceedings consistent with this opinion.

      . Two separate petitions were filed below and then consolidated. One was a petition by appellant for confirmation of custody in her and the other was a petition by appellee for a writ of habeas corpus. Alverta’s custody petition was filed on June 17, 1980, as was the Rule to Show Cause. The sheriffs return shows that service was made on Sandra at 5:00 p. m. on June 18, 1980. Sandra’s petition for habeas corpus was acknowledged by her on June 19, 1980 and filed on June 30, 1980. In that petition Sandra averred at ¶ 14 that she had no “information of any custody proceeding concerning the said child in any court of Pennsylvania or any other state.” This statement is inconsistent with the facts revealed by the record. It is unclear to this court why the habeas corpus petition was filed, in view of the petitioner’s record knowledge of the custody petition and in view of the fact that the issues in both petitions are the same.

      . The putative father of the child also testified that he “would like to see the great grandmother get the child. If not, [he] would like it .... Because she raised it .. . and she took care of that child very well.” N.T. at 61.

      . Compare R. H. H. v. May L. H., 293 Pa.Super. 431, 439 A.2d 187 (1981); Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). In these cases the abuse of discretion standard is criticized.

      . The reason given by the caseworker for her not interviewing the son was that as he was 17 years old he would soon be leaving home, and so it was not necessary for him to be present for the home study. This assumption made by the caseworker is typical of her attitude towards the case. She appeared incapable of overcoming a bias against Alverta’s household. Her report and her testimony are replete with conclusions such as this which she drew without evidence to support them.

      . It is apparent from the record that Jeremy has in fact spent very little time with Sandra since his birth. Since Debra’s death it appears that Jeremy had visited twice with Sandra, and that Sandra had visited him once at Alverta’s house.