text:
    453 A.2d 1060
    Commonwealth v. Heckman, Appellant.
    Reargument Denied Jan. 11, 1983.
    Petition for Allowance of Appeal Granted May 12, 1983.
    Argued May 20, 1982.
    Samuel J. Reich, for appellant;
    Robert L. Eber-hardt, Deputy District Attorney, for Commonwealth, appel-lee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   The judgment of sentence of the learned Allegheny County Common Pleas Court Judge Thomas A. Harper is affirmed.

JOHNSON, J., filed a memorandum dissenting opinion.


source: Caselaw Access Project

license: Public Domain

text:
    452 A.2d 61
    Commonwealth v. Hemphill, Appellant.
    Submitted February 9, 1982.
    Gary F. Selway, for appellant;
    Albert Nichols, District Attorney, for Commonwealth, appellee.
    Before BROSKY, CIRILLO and POPOVICH, JJ.
   Order and judgment of sentence affirmed.


text:
    452 A.2d 62
    Commonwealth v. Hughes, Appellant.
    Petition for Allowance of Appeal Denied Feb. 11, 1983.
    Argued April 6, 1982.
    Joseph J. Yeager, for appellant;
    Ernest D. Preate, Jr., District Attorney, submitted a brief on behalf of Commonwealth, appellee.

      Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Order affirmed.


text:
    452 A.2d 62
    Commonwealth v. Ingram a/k/a White, Appellant.
    Submitted December 8, 1981.
    Elaine DeMasse, Assistant Public Defender, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 62
    Commonwealth v. Karpinski, Jr., Appellant.
    Argued February 1, 1982.
    Leonard R. Apfelbaum, for appellant;
    R. Michael Kaar, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   The judgment of sentence of the learned Northumberland County Common Pleas Court Judge Samuel C. Ranck is affirmed.


text:
    452 A.2d 63
    Commonwealth v. Kilpatrick a/k/a Miller, Appellant.
    Submitted April 7, 1982.
    John F.X. Morley, Jr., Assistant Public Defender, for appellant;
    Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 63
    Commonwealth v. Lessor, Appellant.
    Submitted March 1, 1982.
    Michael Alan Klimpl, for appellant;
    Michael J. Kane, District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 63
    Commonwealth v. Marciniak, Appellant.
    Submitted May 12, 1982.
    Warren D. Utermahlen, for appellant;
    Michael E. Weinstein, District Attorney, for Commonwealth, appellee.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   Order affirmed.

MONTEMURO, J., concurred in the result.


text:
    452 A.2d 63
    Commonwealth v. Mays, Appellant.
    Petition for Allowance of Appeal Denied March 24, 1983.
    Submitted November 5, 1981.
    Spencer M. Wer-theimer, for appellant;
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   Order affirmed.-


text:
    452 A.2d 64
    Commonwealth v. McKenna, Jr., Appellant.
    Submitted May 12, 1982.
    Robert Thomas Panowicz, for appellant;
    Chester B. Muroski, District Attorney, for Commonwealth, appellee.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   Affirmed.


text:
    452 A.2d 64
    Commonwealth v. Melvin, Appellant.
    Submitted December 7, 1981.
    James R. Protasio, Assistant Public Defender, for appellant;
    Kenneth Brown, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The judgment of sentence of the learned Lycoming County Common Pleas Court Judge Charles F. Greevy is affirmed.


text:
    452 A.2d 64
    Commonwealth v. Moore, Appellant.
    Submitted May 25, 1982.
    Arthur Henry James, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 65
    Commonwealth v. Morgan, Appellant.
    Submitted April 5, 1982.
    Robert A. Longo, for appellant;
    Michael H. Ranck, District Attorney, for Commonwealth, ap-pellee.
    Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 65
    Commonwealth v. Norris, Appellant.

      Submitted December 5, 1980.
    Herman Weiner, for appellant;
    Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., HESTER and WIEAND, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    452 A.2d 65
    Commonwealth v. Paull, Appellant.
    Petition for Allowance of Appeal Denied Feb. 11, 1983.
    Submitted May 10, 1982.
    Robert F. Pappano, Assistant Public Defender, for appellant;
    John A. Reilly, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Order affirmed.


text:
    452 A.2d 65
    Commonwealth v. Pellot, Appellant.

      Argued September 10, 1981.
    Stephen C. Hurvitz, for appellant;
    Mark Gurevitz, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and CHULLO, JJ.
   The judgment of sentence of the learned Philadelphia County Common Pleas Court Judge Nicholas M. Dalessandro is affirmed.


text:
    452 A.2d 66
    Commonwealth v. Reider, Appellant.
    Submitted March 6, 1980.
    Bruce D. Foreman, for appellant;
    Marion E. MacIntyre, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., WATKINS and MONTGOMERY, JJ.
   The order of the lower court is affirmed.


text:
    452 A.2d 66
    Commonwealth v. Richardson, Appellant.
    Petition for Allowance of Appeal Denied March 3, 1983.

      Submitted March 9, 1982.
    Paul R. Beckert, for appellant;
    Michael J. Kane, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   Order affirmed.


text:
    452 A.2d 66
    Commonwealth v. Rucker, Appellant.
    Submitted March 31, 1978.
    Franklin A. Wurman, for appellant;
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., MONTGOMERY and HOFFMAN, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    453 A.2d 1060
    Commonwealth v. Sapp, Appellant.
    Reconsideration Denied Jan. 3, 1983.
    Argued May 10, 1982.
    Eric S. Coates, for appellant;
    Thomas G. Gavin, submitted a brief on behalf of participating party.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   Order affirmed.


text:
    452 A.2d 67
    Commonwealth v. Taylor, Appellant.
    Submitted December 14, 1981.
    Richard A. McDaniel, for appellant;
    James C. Long, Assistant District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 67
    Commonwealth v. Tillman, Appellant.
    Argued May 19, 1982.
    Dante G. Bertani, Assistant Public Defender, for appellant;
    Judith Karns Ciszek, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 67
    Commonwealth v. Warner, Appellant.
    Submitted May 3, 1982.
    Mitchell S. Strutin, for appellant;
    Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    452 A.2d 68
    Commonwealth v. Westfall, Appellant.
    Submitted May 5, 1981.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant;
    Michael H. Ranek, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., SPAETH and CAVANAUGH, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    452 A.2d 68
    Commonwealth v. Wright, Appellant.
    Submitted December 5, 1980.
    George Gershenfeld, for appellant;
    Gaele McLaughlin Barthold, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., HESTER and WIEAND, JJ.
   Judgment of sentence of the lower court is affirmed.


text:
    452 A.2d 68
    Commonwealth ex rel. Warren v. Dobson, Appellant.
    Petition for Allowance of Appeal Denied Feb. 22, 1983.

      Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment affirmed.


text:
    452 A.2d 69
    Dickmann, et ux., Appellants v. Miller, et ux.
    Argued December 9, 1981.
    William David Murphy, for appellants;
    William J. Moran, for appellees.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   The order of the distinguished Montgomery County Common Pleas Court Judge William T. Nicholas is affirmed.


text:
    452 A.2d 69
    Meyers v. S.G.D.H. & Assoc. Appeal of Anthony Victor Abriola.
    Argued January 13, 1982.
    Charles S. Morrow, for appellant;
    Robert L. Campbell, for Meyers, appellee;
    Louis J. Dell’Aquila, for S.G.D.H., appellees.
    Before HESTER, BECK and VAN der VOORT, JJ.
   Appeal quashed.


text:
    452 A.2d 69
    Middleton, Appellant v. Univ. of Pa. Graduate Hospital.
    Petition for Allowance of Appeal Denied Feb. 15, 1983.
    Argued January 19, 1982.
    Robert B. B. Schatz, for appellant;
    Charles T. Roessing, for appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   Order affirmed.


text:
    452 A.2d 69
    Petrini, Appellant v. Chrusciel, Jr.
    Argued January 26, 1982.
    Thomas M. Holmes, for appellant;
    Lucille Marsh, for appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment affirmed.


text:
    452 A.2d 70
    Weaver, et al., Appellants v. Wayne-Crouse.

      Argued May 19, 1982.
    Robert B. Truel, for appellant;
    Gerald J. Hutton, for appellee.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   Judgment affirmed.


text:
    452 A.2d 70
    Wingard, Appellants v. Joe the Motorist’s etc., et al.
    Petition for Allowance of Appeal Denied Feb. 17, 1983.
    Argued March 22, 1982.
    Neil J. Rovner, for appellant;
    Richard W. Cleckner, for Joe, appellee;
    Jeffrey B. Rettig, for Wingard, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   Order affirmed.


author: VAN der VOORT, Judge: BECK, Judge,

text:
    452 A.2d 873
    COMMONWEALTH of Pennsylvania v. David MARTELL, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1982.
    Filed Nov. 19, 1982.

      Robert G. Kochems, Grove City, for appellant.
    Charles Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellant was found guilty of escape, conspiracy to commit escape, unauthorized use of a motor vehicle and conspiracy to commit unauthorized use of a motor vehicle by the court sitting non-jury. The charges arose out of an incident on February 25, 1980, when McKee overpowered the night matron at the Mercer County Juvenile Court Center, locked her into a room, and escaped with five other juveniles, including appellant, Martell by taking the matron’s car. Appellant was tried together with codefendant McKee. Appellant Martell raises five issues on this appeal; we will address them seriatim.

I. DID THE TRIAL COURT ERR IN ADJUDGING THE APPELLANT GUILTY OF CRIMINAL ESCAPE AND CONSPIRACY TO ESCAPE IN THAT THE EVIDENCE PRESENTED BY THE COMMONWEALTH FAILED TO SHOW THAT THE APPELLANT WAS UNDER OFFICIAL DETENTION AS IS REQUIRED BY THE STATUTE?

Escape is defined by the Crimes Code, 18 Pa.C.S. § 5121(a) as:

Escape—a person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.

Subsection (e) further defines official detention as:

Definition—as used in this section, the phrase “official detention” means arrest, detention in any facility for custody of persons, under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation, parole, or constraint incidental to release on bail.

Appellant cites our decision in Commonwealth v. Markle, 245 Pa. Superior Ct. 108, 113, 369 A.2d 317, 319 (1976), where we said, that: “In order to prove the charge against appellant of attempted escape, the Commonwealth had to prove that appellant was held in ‘official detention’ ... and went on to say that in the Markle case: “the jury or judge has a right to know the reason for which the defendant is being held .... ”

In the present case the transcript of the non-jury trial before Judge Mannix does not contain specific evidence as to the precise circumstances and reasons for appellant’s detention in the Mercer Juvenile Court Center, or, for that matter precisely what was the Juvenile Court Center. There appears to be some merit to appellant’s assertion. In Com monwealth v. Feick, 294 Pa. Superior Ct. 110, 439 A.2d 774 (1982) and In the Interest of Tasseing H., 281 Pa. Superior Ct. 400, 422 A.2d 530 (1980) this court held that leaving a non-secure shelter facility, did not make a merely dependent child an escapee under the Crimes Code. Accordingly if appellant had not been adjudicated a delinquent or was not awaiting a delinquency hearing then he could not have attempted an escape within the meaning of the Crimes Code.

The trial court, in its opinion, took note of Judge Stranahan’s findings of fact that appellant Martell had been adjudicated delinquent and was awaiting transfer to another facility at the time of the alleged escape. Courts may take judicial notice of the record and prior proceedings in the case in which they are currently involved. Wagner’s Appeal, 143 Pa. Superior Ct. 407, 17 A.2d 662 (1940). See also, Wharton’s Criminal Evidence, § 63 (13 Ed. 1972) and 9 Wigmore Evidence § 2579 (Chadbourn rev. 1981). At the same time a court may not support an adjudication of guilt with evidence not part of the trial record. Commonwealth v. Wasiuta, 280 Pa. Superior Ct. 256, 421 A.2d 710 (1980).

The Commonwealth is however also entitled to any reasonable inferences which may arise from the evidence presented. Commonwealth v. Markle, supra. The testimony elicited at trial demonstrates that the juveniles at the Mercer County Juvenile Center were under secured supervision. They were locked in their rooms or cells at night and any exit to the outside world was barred by locked doors. Furthermore, arrangements had been made with various police authorities for a periodic check-in by the Center’s personnel to insure that no incidents would arise without the authorities being notified. The nature of this security is demonstrated by the fact that the juveniles had engaged in a forcible escape and did not merely walk out or run away as the case was in Feick, supra, and Interest of Tasseing H., supra.

We must also look to the legislatively created scheme for housing children who come under the supervision of the juvenile court. A child alleged to be delinquent may be housed in one of four alternate placement environments, including a detention center. 42 Pa.C.S. § 6327(a). A dependent child may be housed in one of three of the same placements as a delinquent child, but may not be sent to a detention center. Id. (e). The legislature has further defined a “shelter care”, as one of the three available options for a dependent child, as a physically unrestricted facility. Id. § 6302. A similar statutory definition has not been provided for a “detention center.” Nonetheless the courts and others involved in the placement of dependent and delinquent children have used the unrestricted/secure dichotomy to distinguish a shelter facility from a detention facility. For an example, see, Interest of Tasseing, supra.

With the above in mind we find that a fact-finder could reasonably infer that appellant escaped from “official detention”. Throughout the questioning of the various witnesses frequent references were made without objection to the Mercer County Juvenile Center as a detention center. (N.T., pp. 2, 3, 10, 11, 18, 20, 27, 28, 30, 34, 35, 36, 44, 45 and 46). As only juveniles petitioned to be delinquent or those actually found to be delinquent, may be housed in a detention center, the court could properly assume that appellant was under official detention for law enforcement purposes.

II. DID THE TRIAL COURT ERR IN ADJUDGING THE APPELLANT GUILTY OF CONSPIRACY TO COMMIT AN ESCAPE IN THAT THE COMMONWEALTH FAILED TO SHOW THAT THE APPELLANT ENTERED INTO AN AGREEMENT WITH ANOTHER TO ESCAPE AND THERE WAS FAILURE TO SHOW AN OVERT ACT IN FURTHERANCE OF THE CONSPIRACY?

The Commonwealth’s evidence did not explicitly demonstrate that appellant had entered into agreement prior to the escape. A prosecution witness, one of the other escapee-detainees testified that he was unsure of appellant-Martell’s participation in the planning stage of the scheme. (N.T., pp. 39, 48).

While a conviction for conspiracy may not rest on mere presence at the scene of the crime, with knowledge that a crime is being committed, a conspiracy may be inferred from the relationship, conduct, and circumstances of the parties. Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635 (1979); Commonwealth v. Knox, 273 Pa. Superior Ct. 563, 417 A.2d 1192 (1980). Here the circumstantial evidence shows that while the record is unclear as to appellant’s early participation in the planning, he did confer with the main actor, McKee, a half an hour before the assault on the matron. Appellant after being released then went about releasing other detainees. We find such conduct in the context of this case to be sufficient to show beyond a reasonable doubt that appellant was an active participant in the conspiracy to escape.

III. & IV. DID THE TRIAL COURT ERR IN ADJUDGING THE APPELLANT GUILTY OF UNAUTHORIZED USE OF AN AUTOMOBILE AND CONSPIRACY TO COMMIT UNAUTHORIZED USE OF AN AUTOMOBILE IN THAT THE COMMONWEALTH FAILED TO SHOW THAT THE APPELLANT WAS THE OPERATOR OF THE AUTOMOBILE IN QUESTION AND THAT APPELLANT HAD ENTERED INTO AN AGREEMENT WITH ANOTHER TO USE THE CAR?

Originally, the escape plan contemplated escape by foot (N.T., p. 46); but after the unlocking of the various cells it was decided that the matron’s car would be used to effectuate the escape (N.T., p. 46); appellant did not actually drive the car from the detention center though he was a passenger. (N.T., p. 32); when the car was disposed of, it is unclear on the record whether appellant was then driving the vehicle. (N.T., p. 32)

It is a fundamental principal of criminal law that when a conspiracy is shown to exist, then each confederate is criminally responsible for the acts of his associates committed in furtherance of the common scheme. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976); Commonwealth v. Jefferson, 271 Pa. Superior Ct. 199, 412 A.2d 882 (1979). With this principle in mind we find it unnecessary to distinguish driver from passenger. As we found earlier in this opinion that a conspiracy to escape existed, all the conspirators share in the criminal responsibility of the unauthorized use of the car as such was committed in furtherance of the escape.

Similarly, we have no difficulty in finding that a conspiracy for unauthorized use was demonstrated. In the context of the broader escape conspiracy, we find that the potential escapees had reached a consensus that the matron’s car would be used in their escape. (N.T., p. 36)

V. DID THE PRE-TRIAL HEARING JUDGE ERR IN TRANSFERRING THIS MATTER FROM JUVENILE COURT TO ADULT CRIMINAL COURT IN THAT THE TRANSFER FROM JUVENILE COURT TO ADULT COURT CONSTITUTED AN ABUSE OF DISCRETION?

Transfer of juveniles to adult court is controlled by the Juvenile Act found in 42 Pa.C.S., Section 6355, which is a substantial re-enactment of prior law found in 11 P.S., Section 50-325. Section 6355(a)(4) of the present Juvenile Act requires that a juvenile may be transferred to adult court only if the court finds that all of the following factors exist:—

(a) That the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities. In determining this, the court may consider age, mental capacity, maturity, previous records and probation or institutional reports;
(b) That the child is not committable to an institution for the mentally retarded or mentally ill;
(c) That the interest of the community requires that the child be placed under legal restraint or discipline, or that the offense is one which would carry a sentence of more than three (3) years if committed as an adult.

President Judge Stranahan filed findings of fact and amended findings of fact supporting the transfer of this case to the Criminal Division. Appellant was 16 years of age at the time of the hearing. The court found a prima facie case had been made out against appellant-Martell. The pending charges included acts that would be felonies if committed by an adult and carried a sentence of more than three (3) years. Appellant had a prior juvenile history including burglary, drug violation, under-age drinking and unlawful operation of a vehicle. He had a troubled school history and proved to be unmanageable when placed with relatives. He had a history of running away, escapes and escape attempts. As a result of the current escape attempt, three different placement centers refused to take him. It was his probation officer’s opinion that he had not responded to any of the programs afforded him. The transferring court went on to take note of the details of the escape currently under review and concluded that the interest of the community required appellant be placed under legal restraint. The court found appellant not committable to an institution for the mentally retarded or ill.

Absent the court’s gross abuse of its broad discretion in the transferring of juveniles to the Criminal Division we will not vacate a court’s certification order. Commonwealth v. Stokes, 279 Pa.Superior Ct. 361, 367, 421 A.2d 240, 243 (1980); Commonwealth v. Harrod, 260 Pa.Superior Ct. 312, 394 A.2d 567 (1978). Appellant argues that it was not demonstrated in the court below that he was not amendable to treatment within the juvenile system. We disagree. The court in compliance with subsection (a) of the applicable statute found: that a number of possible placements would not accept appellant; and that his probation officer found he was unresponsive to the programs afforded him. In light of appellant’s juvenile record the court found him unamenable to treatment in the juvenile system. We can find no gross abuse of the court’s discretion in this matter.

Judgment of sentence affirmed.

BECK, J., files a concurring and dissenting statement.

BECK, Judge,

concurring and dissenting:

While I agree with the majority’s determination that Appellant’s case could properly be transferred under Section 6355 of the Juvenile Act (“Act”), 42 Pa.C.S. § 6355, to an “adult” court, I disagree with the majority’s view that Appellant’s constitutional right to a fair trial as an “adult” was adequately protected in this instance where the trial court took judicial notice of the factual findings of the transfer hearing judge and incorporated same into its evaluation of Appellant’s guilt.

A transfer hearing pursuant to the Act does not possess all the safeguards of an “adult” court trial. Although the Act does guarantee, inter alia, the right to counsel (42 Pa.C.S. § 6337), the right to cross-examine witnesses (42 Pa.C.S. § 6338), and the right against self-incrimination (42 Pa.C.S. § 6338), the Act specifically denies the right to a jury. “Hearings under the [Act] shall be conducted by the court without a jury, in an informal but orderly manner .. .. ” Section 6336 of the Act, 42 Pa.C.S. § 6336 (emphasis added). See McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); Commonwealth v. McNaughton, 252 Pa.Super.Ct. 302, 381 A.2d 929 (1977). The purpose of the hearing is for the Commonwealth to make a prima facie case not prove all the elements of the crime beyond a reasonable doubt. Additionally, the defendant at a prima facie hearing does not expect to develop fully whatever defense he may have.

Moreover, the purpose and scope of a transfer hearing differ markedly from those of a criminal court trial. Whereas a criminal court trial addresses the merits of both the Commonwealth’s and the accused’s positions, Section 6355(a) of the Act states that “[a]fter a petition has been filed alleging delinquency based on conduct which is designated a crime . . ., the court before hearing the petition on its merits may rule that [the Act] is not applicable . . . and transfer the offense ... to ... a judge of the court assigned to conduct criminal proceedings . . . . ” (Emphasis added.) A transfer must be supported by, inter alia, a finding “that there is a prima facie case that the child committed the delinquent act alleged.” 42 Pa.C.S. § 6355(a)(4)(i) (emphasis added).

The transfer hearing did not offer Appellant the opportunity to trial by jury. The standard of proof of the crime at the transfer hearing was not beyond a reasonable doubt but was limited to the establishment of a prima facie case. I therefore would hold that the trial court’s adoption of the factual findings of the transfer hearing judge denied Appellant his basic constitutional right to a fair trial including his right to a jury trial and to proof of guilt beyond a reasonable doubt.

I would accordingly reverse and remand for a new trial not inconsistent with this view.

      . A co-defendant, Kenneth Harry McKee, was convicted of similar charges as well as aggravated assault and conspiracy to commit aggravated assault at No. 102 Mercer County, Criminal 1980. He has filed a separate appeal at No. 184 Pittsburgh, 1981. We have filed on this date an Opinion in that case.

      . Due to our resolution of this issue we need not resolve the apparent contradiction between Wagner’s Appeal and Wasiuta.

      . Apparently the “findings of fact” filed originally confused the juvenile backgrounds of the two defendants.

      . Juveniles also have the right to confront their accusers. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

      . Although Section 6341 of the Act, 42 Pa.C.S. § 6341, provides that a finding of delinquency must be based “on proof beyond a reasonable doubt that the child committed the acts by reason of which he is alleged to be delinquent,” Section 6355 which governs transfers to “adult” court, does not contain a similar prerequisite for a finding of inapplicability of the Juvenile Act but merely requires proof of a prima facie case in order to effectuate a transfer to “adult” court.


text:
    452 A.2d 878
    COMMONWEALTH of Pennsylvania v. Kenneth Harry McKEE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1982.
    Filed Nov. 19, 1982.

      Timothy P. McNickle, Grove City, for appellant.
    Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

Appellant was tried with a co-defendant, one David Mar-tell. Appellant was convicted of escape, conspiracy to escape, unauthorized use of a motor vehicle, conspiracy to commit unauthorized use, aggravated assault and conspiracy to commit aggravated assault. Appellant raises two issues on this appeal:

I. Whether the trial court erred in transferring appellant’s case to the criminal division?
II. Whether the verdicts of guilty of escape and conspiracy to commit escape were against the evidence and the law?

Co-defendant Martell appealed his conviction to this court at No. 184 Pittsburgh 1981. In an opinion, Commonwealth v. Martell, 307 Pa.Super. 1, 452 A.2d 873 (1982), filed on this date we affirmed his conviction. For the purposes of this appeal we will rely upon the factual history stated in Martell. McKee’s second contention was raised by co-defendant Martell in his appeal and was resolved against him. Based on our disposition in Commonwealth v. Martell, we find no merit to appellant McKee’s second contention. Therefore, we need only address the certification of appellant from the juvenile court to the criminal division.

Transfer of juveniles to adult court is controlled by the Juvenile Act found at 42 Pa.C.S., Section 6355, which is a substantial re-enactment of prior law found at 11 P.S., Section 50-325. Section 6355(a)(4) of the present Juvenile Act requires that a juvenile may be transferred to adult court only if the court finds that all of the following factors exist:—

(a) That the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities. In determining this, the court may consider age, mental capacity, maturity, previous records and probation or institutional reports;
(b) That the child is not commitable to an institution for the mentally retarded or mentally ill;
(c) That the interest of the community requires that the child be placed under legal restraint or discipline, or that the offense is one which would carry a sentence of more than three (3) years if committed as an adult.

Absent the court’s gross abuse of its broad discretion in the transferring of juveniles to the criminal division we will not vacate a court’s certification order. Commonwealth v. Stokes, 279 Pa.Superior Ct. 361, 367, 421 A.2d 240, 243 (1980); Commonwealth v. Harrod, 260 Pa.Superior Ct. 312, 394 A.2d 567 (1978).

President Judge Stranahan filed amended findings of facts following the hearing on the Commonwealth’s petition to transfer this case to the criminal division.

The hearing judge found that appellant was fifteen years of age at the time of the hearing; a prima facie case had been made out against appellant; the delinquent acts would be felonies if committed by an adult and would carry a sentence in excess of three (3) years. The court found McKee not amenable to treatment, supervision, or rehabilitation through the juvenile system based on the following circumstances. Appellant had only one prior juvenile petition alleging criminal mischief, though a charge of receiving stolen goods had been filed. A probation officer testified that appellant had substantial school problems and was uncooperative in his probation program. The juvenile had failed to make court ordered restitution and was returned to custody. A psychological workup had been completed. Since the current incident, the institution to which appellant was scheduled to be placed indicated it would not accept him. His parole officer opined that no private institution would accept him. The court found his home life was unstable and his neighbors lived in fear of him. The probation officer further believed that appellant would not benefit from a juvenile placement as he has not responded to prior attempts.

The court reviewed appellant’s role in the escape attempt; he was alleged to have actually assaulted the matron. The judge found that McKee was not committable to a mental institution and indicated he had reviewed the psychological report. The court in the interest of the community found that appellant should be legally restrained and disciplined.

Appellant argues, that the court placed undue emphasis upon the crimes then alleged; that he had never prior to the escape, been placed in a juvenile facility; and that the court did not consider a second psychological report admitted into evidence upon McKee’s motion to reconsider the transfer.

A court in determining whether to order a juvenile to be tried as an adult may not justify the transfer based solely on the nature of the crime charged and nothing else. Commonwealth v. Greiner, 479 Pa. 364, 388 A.2d 698 (1978). However the court may consider the alleged conduct in conjunction with other factors. Commonwealth v. Carrasquillo, 268 Pa.Superior Ct. 336, 408 A.2d 493 (1979) (court considered infant’s viciousness and failure to respond to rehabilitation). In Commonwealth v. Lux, 299 Pa.Superior Ct. 136, 445 A.2d 185 (1982) a panel of this court vacated the transfer order and remanded for a new certification hearing because there was not an adequate demonstration of nonamenability. There the juvenile’s only previous adjudication was for “fistcuffs” and the testimony of the probation supervisor who had never interviewed Lux, but testified based on his file, wavered on the child’s amenability. In Commonwealth v. Bey, 249 Pa.Superior Ct. 185, 375 A.2d 1304 (1977), the hearing court transferred the juvenile in spite of a probation officer’s recommendation of juvenile treatment; this court found no error. A juvenile court may not abdicate its duty to determine if a juvenile is amenable to treatment within the juvenile system. Lux, supra.

In the current appeal we can find no gross abuse of discretion. McKee had a history of family and school problems; Lux did not. There is support in the record for the determination that appellant was not amenable; there was not such support in Greiner, supra or Stokes, supra. Here, the probation officer, familiar with appellant, reviewed appellant’s lack of cooperation and did not waiver in his opinion that the juvenile system would not help him; Lux demonstrated an absence of such testimony. In light of the testimony of the probation officer and appellant’s juvenile history we can find no gross abuse of discretion on the part of the trial court, considering the nature of the alleged crime, in transferring the case even though appellant had a limited juvenile record, and the court’s disregarding the recommendation of the second psychological evaluation.

Judgment of sentence affirmed.

BECK, J., files a concurring and dissenting statement.

BECK, Judge,

concurring and dissenting:

While I agree with the majority’s determination that Appellant’s case could properly be transferred under Section 6355 of the Juvenile Act (“Act”), 42 Pa.C.S. § 6355, to an “adult” court, I disagree with the majority’s view that Appellant’s constitutional right to a fair trial as an “adult” was adequately protected in this instance where the trial court took judicial notice of the factual findings of the transfer hearing judge and incorporated same into its evaluation of Appellant’s guilt.

A transfer hearing pursuant to the Act does not possess all the safeguards of an “adult” court trial. Although the Act does guarantee, inter alia, the right to counsel (42 Pa.C.S. § 6337), the right to cross-examine witnesses (42 Pa.C.S. § 6338), and the right against self-incrimination (42 Pa.C.S. § 6338), the Act specifically denies the right to a jury. “Hearings under the [Act] shall be conducted by the court without a jury, in an informal but orderly manner .... ” Section 6336 of the Act, 42 Pa.C.S. § 6336 (emphasis added). See McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); Commonwealth v. McNaughton, 252 Pa.Super.Ct. 302, 381 A.2d 929 (1977). The purpose of the hearing is for the Commonwealth to make a prima facie case not prove all the elements of the crime beyond a reasonable doubt. Additionally, the defendant at a prima facie hearing does not expect to develop fully whatever defense he may have.

Moreover, the purpose and scope of a transfer hearing differ markedly from those of a criminal court trial. Whereas a criminal court trial addresses the merits of both the Commonwealth’s and the accused’s positions, Section 6355(a) of the Act states that “[a]fter a petition has been filed alleging delinquency based on conduct which is designated a crime . . ., the court before hearing the petition on its merits may rule that [the Act] is not applicable .. . and transfer the offense ... to ... a judge of the court assigned to conduct criminal proceedings . . . . ” (Emphasis added.) A transfer must be supported by, inter alia, a finding “that there is a prima facie case that the child committed the delinquent act alleged.” 42 Pa.C.S. § 6355(a)(4)(i) (emphasis added).

The transfer hearing did not offer Appellant the opportunity to trial by jury. The standard of proof of the crime at the transfer hearing was not beyond a reasonable doubt but was limited to the establishment of a prima facie case. I therefore would hold that the trial court’s adoption of the factual findings of the transfer hearing judge denied Appellant his basic constitutional right to a fair trial including his right to a jury trial and to proof of guilt beyond a reasonable doubt.

I would accordingly reverse and remand for a new trial not inconsistent with this view.

      . Apparently the “findings of fact” filed originally confused the juvenile backgrounds of the two defendants.

      . Juveniles also have the right to confront their accusers. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

      . Although Section 6341 of the Act, 42 Pa.C.S. § 6341, provides that a finding of delinquency must be based “on proof beyond a reasonable doubt that the child committed the acts by reason of which he is alleged to be delinquent,” Section 6355 which governs transfers to “adult” court, does not contain a similar prerequisite for a finding of inapplicability of the Juvenile Act but merely requires proof of a prima facie case in order to effectuate a transfer to “adult” court.


author: PER CURIAM:

text:
    452 A.2d 881
    COMMONWEALTH of Pennsylvania v. Matthew J. JEFFERSON, III, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 13, 1982.
    Filed Nov. 19, 1982.

      Jack Raydan Heneks, Jr., Uniontown, for appellant.
    Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.

      Before HESTER, JOHNSON and POPOVICH, JJ.
   PER CURIAM:

Appellant was arrested on July 23,1980, and charged with the theft of a 3V2 horsepower roto-tiller from a warehouse in Bullskin Township. After a trial by jury, appellant was convicted of burglary and theft by unlawful taking. Post verdict motions were filed and denied. The trial judge imposed a sentence of two (2) to four (4) years imprisonment on each count and directed that the sentences run concurrently. Appellant subsequently filed a Petition for Reconsideration of Sentence, which was dismissed without a hearing. This appeal followed.

Appellant contends that the verdict and sentence on the charge of theft by unlawful taking should be vacated pursuant to 18 Pa.C.S.A. § 3502(d). That section provides:

“Multiple convictions. A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense unless the additional offense constitutes a felony of the first or second degree.” 18 Pa.C.S.A. § 3502(d).

According to the Crimes Code, theft offenses rise no higher than a felony of the third degree. 18 Pa.C.S.A. § 3903. Appellant argues that this explicit statutory prohibition prevents him from being found guilty of both burglary and theft and militates against a sentence on both counts.

This situation is not novel. On many occasions, this Court has been confronted with appellants who were convicted of both burglary and theft. When faced with multiple convictions such as these, “the judgment of sentence for burglary is routinely sustained and the other vacated.” Commonwealth v. Boerner, 281 Pa.Super. 505, 520 n. 17, 422 A.2d 583, 591 n. 17 (1980); citing Commonwealth v. Harris, 269 Pa.Super. 41, 409 A.2d 53 (1979); Commonwealth v. Price, 258 Pa.Super. 625, 391 A.2d 696 (1978); Commonwealth v. Simmons, 233 Pa.Super. 547, 336 A.2d 624 (1975); Commonwealth v. Wilks, 250 Pa.Super. 182, 378 A.2d 887 (1977).

The reason that the verdicts of guilty with respect to the theft charges are not traditionally vacated is found in Commonwealth v. Black, 267 Pa.Super. 598, 407 A.2d 403 (1979). Therein, President Judge Cercone reiterated a distinction between a verdict and a conviction that was recited by our Supreme Court long ago:

“When the law speaks of a conviction it means a judgment, and not merely a verdict, which in common parlance is called conviction. Smith v. Commonwealth, 14 Serg. & R. 69, 70 (1826).”

Id., 267 Pa.Superior Ct. at 602, 407 A.2d at 405. In Commonwealth v. Minnich, 250 Pa. 363, 95 A. 565 (1915), the Supreme Court held that a conviction refers to the ascertainment of guilt of the accused and the sentence thereon. Consequently, 18 Pa.C.S.A. § 3502(d) has been interpreted to disallow only the sentencing of a defendant on both burglary and theft. “[U]nder the Crimes Code, a person may be both a burglar and a thief; the Crimes Code merely prohibits his being punished as both.” Commonwealth v. Black, supra 267 Pa.Super. at 603, 407 A.2d at 405.

In the case at bar, the trial judge properly refused to strike the jury verdict an the theft charge, but he did agree to impose “no sentence ... for the theft by unlawful taking conviction in order to comply with § 3502(d) of the Crimes Code.” However, less than a month later, he did in fact sentence appellant to undergo imprisonment for a period of not less than two (2) years nor more than four (4) years on the theft count. Such a sentence was clearly in error. We therefore vacate the judgment of sentence for theft by unlawful taking. There is no need to remand for resentencing on the burglary charge. Since the two sentences were identical and were to run concurrently, it is obvious that the sentencing judge was not influenced by the theft verdict in imposing the burglary sentence. Commonwealth v. Jellots, 277 Pa.Super. 358, 419 A.2d 1184 (1980).

Judgment of sentence for burglary affirmed; judgment of sentence for theft by unlawful taking is vacated.

      . Appellant raises six other issues herein, to-wit: (1) the evidence was insufficient to sustain his convictions; (2) identification testimony should have been subject to suppression and/or impeachment through cross-examination; (3) whether the black and white photographs were accurate depictions of appellant’s vehicle; (4) whether the Commonwealth laid a proper foundation to establish that the roto-tiller from which the prosecution obtained paint samples was identical to the roto-tiller which was stolen, so as to permit introduction of an expert opinion regarding scientific comparisons of the paint; (5) whether the references in the testimony of respective police officers (a) identifying a case found in appellant’s trunk as a “gun case” and also (b) mentioning the seizure of a “shotgun shell” from the trunk of appellant’s vehicle, were prejudicial error which could not be cured by cautionary instructions from the court; and finally, (6) whether the court improperly refused to permit the prof-erred surrebuttal witness to testify for the defense with regard to the sale of a certain vehicle purchased by the appellant from an alibi witness. A review of the record convinces us that the above issues are devoid of merit and do not warrant discussion.

      . Theft by unlawful taking, in an amount more than $200.00 but less than $2,000.00, constitutes a misdemeanor of the first degree with a maximum penalty of five years. 18 Pa.C.S.A. § 1104(1); 18 Pa.C. S. A. § 3903(b). The value of the roto-tiller was approximately $350.00.


author: WATKINS, Judge: CERCONE, President Judge,

text:
    452 A.2d 884
    Robert H. INGRAM and Iris C. Ingram v. DOVERTOWN ESTATES, INC., A Pennsylvania Business Corporation, and Gerhard Boerner. Appeal of Gerhard BOERNER.
    Superior Court of Pennsylvania.
    Argued March 3, 1980.
    Nov. 19, 1982.
    Petition for Allowance of Appeal Denied Feb. 7, 1983.

      Leo E. Gribbin, Jr., York, for appellant.
    John R. White, Gettysburg, submitted a brief on behalf of Ingram, appellees.
    Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Adams County and involves defendant-appellant’s appeal from an Order of that court which denied appellant’s petition to open a default judgment rendered against him.

Appellees, husband and wife, contracted with Dovertown Estates, Inc., for the construction of a dwelling house for appellees by virtue of an agreement September 16, 1977. On August 28, 1978, plaintiff-appellees filed a Complaint in Assumpsit against Dovertown Estates, Inc., Gerhard Boerner, William L. May, trading as M.O. Plastering Company, and W.H. Ausherman. Dovertown was the general contractor, Boerner was the President of Dovertown and May and Ausherman were sub-contractors. On September 5, 1978, defendant Ausherman filed Preliminary Objections to appellees’ complaint and on September 18, 1978, defendant May did the same. On September 22, 1978, defendants Dover-town and Boerner filed Preliminary Objections.

On February 1,1979, the court below granted the Preliminary Objections of defendants May and Ausherman. On June 6, 1979, defendants Dovertown and Boemer’s Preliminary Objections were listed for argument for July 9, 1979. Written notice of same was presented to the attorney for Dovertown and Boerner. When defendants’ attorney failed to either file a brief or appear at Argument Court on July 9, 1979, the court below dismissed their Preliminary Objections and ordered the defendants to file an Answer to plaintiffs’ complaint within twenty (20) days.

No Answer was filed by the defendants. On August 1, 1979, three (3) days after the Answers were due, plaintiffs entered a default judgment against defendants Dovertown and Boerner and damages were assessed according to plaintiffs’ prayer for relief in their Complaint. Notice of entry of the default judgment was forwarded on August 2,1979 to both defendants and their attorney.

On August 6, 1979, defendant Boerner filed a Petition to Open the Default Judgment. (Defendant Dovertown Estates is now a defunct corporation). A Rule to Show Cause Why the Judgment should not be opened was entered by the court on plaintiffs. The date of the Rule returnable was September 11,1979 on which date plaintiffs’ counsel answered the petition to open. The date of the hearing on the Rule Returnable had been set for September 11, 1979, at which time counsel for Boerner appeared without witnesses or depositions. On September 14,1979 the court below entered an Order denying Boerner’s petition to open.

On October 12, 1979, Boerner filed the instant appeal to our court. On the same date he filed a Petition for Reconsideration with the lower court and the court below directed Boerner to submit to a deposition on the merits of his defense to plaintiffs’ Complaint. The deadline set for the deposition was November 5, 1979.

On October 22, 1979, defendant Boerner requested a Special Allowance to Appeal with our Court. The thrust of the request was that the court below be allowed to retain jurisdiction in the matter pending the deposition of defendant Boerner. We denied this request on November 1, 1979.

Plaintiffs’ Complaint alleged that the September 16, 1977 contract and its addendums of February 10, 1978, and July 13, 1978 had been violated by the defendants in that the home had not been constructed by the defendants in accordance with the contract; the work which had been performed was faulty and unworkmanlike; that plaintiffs would have to spend large sums of money to complete the work; that Boerner had represented to plaintiffs that he personally guaranteed performance of the work in accordance with the contract terms; that the manner in which the contract was signed by Boerner led plaintiffs to believe that he was executing it in his individual capacity; that Boerner accepted'construction draws from the plaintiffs knowing that the work would not be performed; and that he had made false statements to plaintiffs to the effect that the residence would soon be completed when he knew otherwise.

In order to open a judgment taken by default it must be shown by the petitioner that: (1) the petition has been promptly filed; (2) a meritorious defense is shown; and (3) there is a reasonable excuse for failing to file a timely answer or other responsive pleading to the Complaint. Epstein v. Continental Bank and Trust Company, 260 Pa.Superior Ct. 522, 394 A.2d 1049 (1978); Shainline v. Alberti Builders, Inc., 266 Pa.Superior Ct. 129, 403 A.2d 577 (1979).

Applying these criteria to the instant case we find that the Boerner’s Petition to Open, filed as it was five (5) days after the entry of the default, was promptly filed. However, the court below found that Boerner had failed to establish the existence of either a meritorious defense or a reasonable excuse for failure to file his answer. Of course Boerner now complains that he has a meritorious defense to the plaintiffs’ action; namely, that he cannot be held personally liable for the debts of Dovertown Estates.

Appellees argue that the matters adduced in the deposition of Boerner should not be considered because the court below was without jurisdiction to order said deposition after Boerner had taken his appeal to our Court. We agree. Once a party takes an appeal to an appellate court the trial court is divested of jurisdiction over the subject matter until further order of the appellate court reinstating jurisdiction. Pa. Rule Appellate Pro. 1701; Bartle v. Bartle, 304 Pa.Superior Ct. 348, 450 A.2d 715 (1982). However, even if we assume that Boerner had a meritorious defense to the case we find that he had not shown a reasonable excuse for failing to file a timely answer to the complaint. Boerner had filed previous pleadings in the case and was therefore aware of the scope and nature of the proceedings. He had also failed to file a brief or appear at Argument Court to support the contentions made in his Preliminary Objections. It was also established that Boerner was in Florida at the time of the instant litigation and had failed to respond to his counsel’s letters to him of June 25, 1979, June 27, 1979 and June 29,1979. Although Boemer’s attorney cites “difficulty in communicating with counsel” as an excuse for Boemer’s failure to act we do not find that Boerner’s non-action and “ostrich-like” approach to this matter constitutes a reasonable excuse for his failure to file a timely answer to the Complaint. In short, the defendant Boerner’s “busy schedule”, “difficulty in communicating with his attorney because he (Boerner) was in Florida” and “confidence in the fact that he could not be held personally liable on the plaintiffs’ cause of action” do not constitute reasonable grounds for failing to file a timely answer to plaintiffs’ complaint. See Dico Co., Inc. v. Novak, 268 Pa.Superior Ct. 441, 408 A.2d 869 (1979). In short, we hold that where a defendant’s conduct indicates a pattern of avoiding his counsel’s attempts to discuss the case with him which pattern results in a default judgment being rendered against him we will find such activity “inexcusable” when considering the reasonableness of his failure to file a timely answer to a pleading.

Finally, we note that Boerner’s counsel had communicated in writing to plaintiffs’ counsel on June 27, 1979 indicating that defendant’s attorney (the author of the letter) would probably not argue Boerner’s Preliminary Objections at the July 9, 1979 court date set for said argument and also including therein a statement indicating the likelihood that a default judgment would be permitted to be taken against both “Dovertown Estates and Gerhard Boerner”. Considering this communication we find that plaintiffs owed no duty to Boerner to notify him or his counsel that they intended to take the default judgment if their complaint was not answered in a timely fashion.

Taking into account the abovementioned set of circumstances, we find that Boerner did not establish a reasonable excuse for failing to file a timely answer to plaintiffs' complaint and that the court below did not err nor abuse its discretion in refusing to grant Boerner’s Petition to Open the Default Judgment.

Order affirmed.

CERCONE, President Judge, files a concurring and dissenting opinion.

CERCONE, President Judge,

concurring and dissenting:

Although I concur in the result reached by the majority I must respectfully dissent from the reasoning employed in reaching that result.

I fully agree with the majority when it holds that the deposition is a nullity. However, and despite this ruling, the majority goes on to address assertions made in that very deposition for the purpose of refuting appellant’s claim to a valid excuse for his default. This, I believe, is incorrect. I would simply ignore the deposition since it is not a legitimate part of the record, and rest the decision, rather, on appellant’s failure to offer any evidence whatsoever to support his petition to open. From a legal point of view, we cannot and should not base our decision on the revelations contained in the deposition for it is not a legitimate part of the record. As far as we are concerned the record is truly silent as to the causes of or excuses for appellant’s default. Cf., McCaffrey v. Pittsburgh Athletic Ass’n, 448 Pa. 151, 162, 293 A.2d 51, 57 (1972); Killian v. Allegheny County Distributors, 409 Pa. 344, 348-49, 185 A.2d 517, 519-20 (1962) (Citing cases). Whatever the events made known in the deposition may be, they bear no significance to the decision of the instant case, and should not have been considered in rendering today’s decision.

Accordingly, I concur in the judgment but dissent from the reasoning employed in reaching it.

      . Pa. Rulé Appellate Pro. 1701(b) provides certain exceptions to the general rule none of which are applicable to this matter.


author: JOHNSON, Judge: HESTER, Judge,

text:
    452 A.2d 1021
    In the Matter of M.L.W., a minor. Appeal of B.W.
    Superior Court of Pennsylvania.
    Submitted April 13, 1982.
    Filed Oct. 8, 1982.
    Reargument Denied Dec. 17, 1982.

      Stephen E. Hall, Meadville, for appellant.
    John Fuller, Meadville, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

This is an appeal from the final Order dated December 24, 1980, terminating Appellant’s parental rights to her child M.L.W. We reverse.

The record indicates that the child was born on April 9, 1974 to Appellant, age twenty, who was then residing with foster parents. The child’s father is the son of Appellant’s foster parents. Appellant and the child’s father never married. Sometime prior to November of 1978, Appellant and the child moved out of the foster home and into the home of Appellant’s father in Crawford County.

In November of 1978, Appellant and her father sought out the assistance of the Meadville Mental Health Center concerning their inability to control the child. The staff psychologist testified that, after observing the child, he found him to be manipulative. The child was observed as having a speech impediment and his appearance was “. . . a little dirty, clothing wasn’t the best.” Four sessions of parental counseling and play therapy were scheduled from November of 1978 through January of 1979, after the initial visit.

On January 25, 1979 Appellant and her father contacted Child Welfare Services of Crawford County (CWS) concerning their continued problems with the child, i.e., temper tantrums, running away, refusal to follow routines, and threatening Appellant and her father with knives. The testimony is disputed as to whether Appellant inquired into the possibility of the child’s placement in foster care at this meeting. Thereafter, on February 6, 1979, CWS took temporary emergency custody of the child following allegations that the child, at age four, had been abused and sexually molested. The child was found to have pinworms, pneumonia and a speech impediment. Prior to a dependency hearing, Appellant appeared before the court with counsel and consented to the temporary voluntary placement of the child in a foster home. Subsequently, the allegations of abuse were determined to be unfounded by CWS. Appellant then voluntarily admitted herself to the Mental Health Center in Meadville for one week, after becoming hysterical upon turning the child over to CWS. Between February and May of 1979, Appellant visited her son approximately once a week.

Appellant was administered I.Q. and psychological tests in May of 1979. She was determined to have an I.Q. of 65, which is in the range of mental retardation, and achievement at the third grade level. Appellant testified that prior to the administration of the tests, she discovered that her sister had taken an overdose of drugs, that she was distracted and she informed the psychologist administering the tests of this. The psychologist testified that he did recall Appellant informing him of her sister and she did not appear upset, in any event.

The child was psychologically tested in January and May of 1979 and found to have an I.Q. of 70 and 79, respectively. The child’s speech problem was improved in February, as noted by the psychologist, as was his general physical appearance.

A petition for involuntary termination of parental rights of both parents was filed by CWS on August 8, 1979. The grounds for Appellant’s termination were based on 1 P.S. § 311(2) which states: ü

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

At the hearing on September 7, 1979, both the caseworker for CWS and the psychologist testified that it was their opinion that Appellant’s rights should be terminated on the basis that she was unable to care for the child and will not be able to do so in the future.

The lower court terminated Appellant’s parental rights and the rights of the natural father, and after the dismissal of exceptions filed by Appellant, entered a final order terminating Appellant’s parental rights. The lower court based its decision on the fact that Appellant was retarded and, according to the psychologist, improved her parenting skills only marginally during the counseling sessions. His opinion, as well as that of the CWS caseworker, was to terminate Appellant’s rights, as she was incapable of providing essential parental care for the child at that time or at any time in the future.

Appellant alleges that the lower court did not have sufficient compelling evidence to support its conclusion that she lacks the capacity to provide essential care and subsistence to the child and that such incapacity is irremediable. We agree.

Our scope of review is limited to a determination of whether the court’s decree terminating parental rights is supported by competent evidence. In re Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981); In Re D.K.W., 490 Pa. 134, 415 A.2d 69 (1980). However, the lower court’s inferences, deductions and conclusions are subject to review. In re Adoption of J.A.B., 487 Pa. 79, 408 A.2d 1363 (1979). Concerning the standard of proof, we are mindful of the recent U.S. Supreme Court opinion in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) holding that termination of parental rights requires, at a minimum, clear and convincing evidence. However, because of our determination in the instant case, we need not discuss the applicability of the holding in Santosky at this time.

Because of the importance placed on the family, the Commonwealth may disrupt the parent-child relationship only upon a clear showing of necessity; moreover, even if removal is necessary to protect the child, every effort should be made to reunite the family. In re Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976), appeal dismissed, U.S. cert. denied, 429 U.S. 1032, 97 S.Ct. 722, 50 L.Ed.2d 743 (1977). All circumstances must be considered when analyzing a parent’s performance of parental obligations in a proceeding for termination of parental rights; the parent’s performance must be measured in light of what would be expected of an individual in circumstances which the parent under examination finds herself. In re Adoption of B.D.S., supra.

It is clear that termination of parental rights cannot be justified merely by demonstrating that the home is “submarginal” and likely to result in “cultural deprivation”. In re William L., 477 Pa. 322, 383 A.2d 1228 (1978), U.S. cert. denied, sub nom. Lehman v. Lycoming County Children’s Services, et al., 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978).

Three things must be proved before a natural parent’s rights in a child will be terminated under section 311(2): (1) repeated and continued incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence; and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975).

The record indicates that Appellant voluntarily solicited the aid of the Mental Health Center and CWS to assist her in gaining the necessary parenting skills. Only four parental counseling sessions were scheduled in addition to the initial interview with the psychologist. Upon gaining custody of the child, nothing was recommended for Appellant’s rehabilitation by CWS. She was merely tested, as was the child, for information concerning levels of intelligence and achievement. This is clearly insufficient.

When termination is sought on the basis of parental conduct causing the child to be without essential parental care, the requirement that the conduct be shown to be irremediable could be met rarely, if ever, absent evidence that the deficiencies in parental conduct had been identified, and the parent was nonetheless unwilling or unable to modify the conduct to remedy the situation.

In re William L., id., 477 Pa. at 332 n. 5, 383 A.2d at 1232 n. 5.

A mere two months of counseling where some, albeit marginal, improvement of Appellant’s parenting skills were noted and the administering of psychological tests does not represent sufficient evidence in the instant case that Appellant is incapable of performing her parental duties, nor that the lack of capacity is irremediable. This is particularly true in the instant case where the Appellant urges that her recent discovery of her sister’s drug overdose prevented her from performing at her best on the only battery of tests administered to her in May 1979.

Furthermore, the lower court appears to have relied heavily on the I.Q. score of Appellant. As stated in In re William L., id,, 477 Pa. at 351-52 n. 26, 383 A.2d 1243 n. 26;

In reviewing whether the evidence supports the orphans’ court’s decree, we have placed only limited reliance on appellant’s IQ score. Experts generally agree that socially and culturally disadvantaged people tend to score lower on standardized intelligence tests, which suggests that cultural bias may affect the result. See Galliher, Termination of the Parent-Child Relationship: Should Parental I.Q. be an Important Factor?, Law and the Social Order 855, 865-66 (1973). Moreover, “No Study has ever documented the premise that unintelligent parents are unable to give love and affection.” Id. at 871. Consequently, we consider appellant’s test score only as a factor among many relevant to her incapacity to meet the essential needs of her children.

The lower court had little, if any, other factors to rely on, other than Appellant’s I.Q. score. The record indicates that the child’s behavioral problems relating to obedience may have been caused by the foster parents with whom Appellant resided until the fall of 1978. The undisputed testimony of Appellant was that the foster parents encouraged the child to obey them only and to ignore the wishes of Appellant. Also, the opinion of the CWS caseworker is of limited value because of its reliance on the limited contact between the caseworker and Appellant and her child, as well as its reliance on the child’s behavioral and speech improvement in the foster home. The caseworker testified that she never observed any behavioral problem in the child. Again, this is clearly insufficient proof of Appellant’s lack of capacity now and in the future. Also, the psychologist’s opinion appears to be based on the best interests of the child and his improvement in foster care, rather than the abilities of Appellant. See In re Adoption of R.I., supra.

The record clearly indicates Appellant’s love for the child and her desire to attempt to improve her parenting skills. The record does not indicate repeated and continued incapacity of Appellant that cannot or will not be remedied. We cannot and will not condone the permanent removal of a child from a parent under these circumstances. A parent must be able to seek the assistance of a Child Welfare Service with the expectation that the agency will exert its best efforts in working with the parent and the child to improve the parent’s skills and understanding. The premature filing of termination petitions by an agency thwarts the trust necessary for the advancement of the purposes of this relationship between agency and parent.

The order dated December 24, 1980 is reversed.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

The majority would leave an eight-year old boy, suffering from a serious speech disability, in the care and custody of his mother, a 27-year old mentally retarded woman with an I.Q. of 65 and a third-grade level of achievement. The record indicates that the parenting deficiencies of the mother are incorrectible due to her severe mental retardation. As stated in the official comment to the Adoption Act of 1970; section 311(2) “centers judicial inquiry upon the welfare of the child rather than the fault of the parent.” It is obvious that this child’s essential needs have not been met.

I would, therefore, affirm on the well-reasoned opinion of Judge Walker, of the court below.

      . Prior to the decision in Santosky, the standard of proof in involuntary termination cases in Pennsylvania was preponderance of the evidence. See e.g., In re Adoption of M.M., 492 Pa. 457, 424 A.2d 1280 (1981); In the Interest of T.S.L., 487 Pa. 245, 409 A.2d 332 (1979).


author: JOHNSON, Judge: POPOVICH, Judge,

text:
    452 A.2d 1025
    In the Matter of the ADOPTION OF L.M.C. and M.B.C.C. Appeal of S.L.P.C.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1981.
    Filed Oct. 8, 1982.
    Reargument Denied Dec. 17, 1982.
    Petition for Allowance of Appeal Granted March 25, 1983.

      Melvin Toran, Erie, for appellant.
    William Dopierala, Erie, for participating party.

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

This is an appeal from the Order entered June 8, 1981, involuntarily terminating the parental rights of S.L.P.C. to her children, L.M.C. and M.B.C.C. For the following reasons, we reverse.

The record indicates that L.M.C., born August 9, 1974 and M.B.C.C., born September 10, 1977, were adjudicated dependent on March 20, 1979 and placed in the same foster home. A petition for termination of Appellant’s parental rights to these children was filed by Children’s Services of Erie County (CSEC) on October 8, 1980. The alleged basis for termination was 1 P.S. § 311(1), (2) and (3) which state:

(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child, or has refused or failed to perform parental duties; or
(2) The repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control, or subsistence necessary for his physical or mental well-being and the conditions and cause of the incapacity, abuse, neglect, or refusal cannot or will not be remedied by the parent; or
(3) The parent is the presumptive but not the natural father of the child. Act of July 24,1970, P.L. 620, No. 208, Art. Ill, § 311, 1 P.S. § 311.

The lower court, by Order dated April 2, 1981, terminated Appellant’s parental rights relying on subsection (1), stating that Appellant, “by conduct which continued for a period in excess of six (6) months has evidenced a settled purpose of relinquishing parental claim to the children or has refused and failed to perform parental dutiesf.]”

After denial of exceptions, the lower court entered a final order terminating Appellant’s rights on June 8, 1981, along with a three page opinion.

Appellant alleges that neither of the provisions found in § 311(1) were supported by substantial evidence and that, in any event, no continuous six-month period is evident from the facts.

We are mindful of the recent U.S. Supreme Court opinion in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) holding that termination of parental rights requires, at a minimum, clear and convincing evidence. However, because of our determination in the instant case, we need not discuss the applicability of the holding in Santosky at this time.

The record indicates that no six-month period exists in this case. Apparently, the six-month period used as the grounds for termination commenced after Appellant’s visit with the children on January 15, 1980. CSEC was on strike in January and February, although supervisory personnel were receiving telephone calls. Appellant next contacted CSEC on March 17, giving the Agency her new address. On March 18, Appellant cancelled an appointment with her caseworker and on April 21, she again called CSEC to inform them of yet another new address. Appellant cancelled an appointment set for May 6, stating that she was ill.

On May 9, 1980, Appellant’s caseworker transferred the case to a second caseworker, who did not receive Appellant’s case until June 9, 1980. In the meantime, a court order was entered on June 2, 1980, ordering Appellant to cooperate with the treatment plan outlined by the court by the orders of April 4, 1979, which required Appellant to obtain adequate housing, cooperate with the BVR and WIN programs, cooperate with a psychological evaluation, and cooperate with caseworker counseling. The June 2, 1980 order further ordered that if within sixty days Appellant had not shown an effort to stabilize her life and work toward the return of her children, the agency was to file a termination petition.

After the scheduling and cancellation of visits, Appellant visited with L.M.C. on July 7, 1980. Appellant visited with both children on August 7, 1980.

It is clear from these facts that as to L.M.C., no six-month period elapsed, as visits took place on January 15 and July 7, 1980. Although six months did elapse in regard to M.B.C.C., during three of the six months, CSEC was either on strike or did not have a caseworker assigned to Appellant. Also, absent any evidence as to why M.B.C.C. was not taken to the agency for the July 7, 1980 visit, we are unprepared to conclude that Appellant did not, in fact, desire or request visitation with M.B.C.C. at that time. We therefore find that, under these specific circumstances, no continuous six-month period elapsed as required by § 311(1), in regard to M.B.C.C.

The lower court found that Appellant had evidenced a settled purpose of relinquishing parental claim to the children or refused and failed to perform parental duties. Concerning relinquishment of a parental claim:

A “settled purpose” to relinquish parental claims requires a deliberate decision by the parent to terminate the parental relationship, and the parent must persist in that determination throughout the six-month period. [In re Adoption of Baby Girl] Fleming [471 Pa. 73, 369 A.2d 1200] supra; [In re Adoption of] Farabelli, supra. Thus, this Court has required an “ ‘affirmative indication of a positive intent,’ ” see [In re Adoption of] McAhren, supra, 460 Pa. [63] at 70, 331 A.2d [419] at 423, as well as a “finality of purpose,” see Wolfe Adoption Case, 454 Pa. 550, 554, 312 A.2d 793 (1973), before sustaining a conclusion of a “settled purpose.” Moreover, any action by the parent within the six-month period inconsistent with such “settled purpose” will preclude an involuntary termination of that parent’s rights.

In re Adoption of R.W.B., 485 Pa. 168, 174, 401 A.2d 347, 350 (1979). Also, the question of whether a parent has evidenced a settled purpose of relinquishing parental claim must be analyzed in relation to the particular circumstances of the case. In re Adoption of M.M., 492 Pa. 457, 424 A.2d 1280 (1981).

Appellant persisted, during the period from January to August, 1980, in her requests for the return of the children, as well as her calls to CSEC to inform them of her new addresses. Also, a request for a visit was made on June 25, 1980, albeit cancelled by Appellant on June 27. Upon a review of the record, we discern no affirmative indication of a positive intent of a “settled purpose”, as the record indicates numerous other visits between August 1979 and October of 1980.

The lower court also raised the alternative of Appellant’s refusal and failure to perform her parental duties as an alternate ground for termination. The basis for termination on this ground is the alleged failure of Appellant to follow through with the court ordered treatment plan, as discussed in the orders of April 4, 1979 and June 2, 1980, supra.

Appellant did comply with the psychological evaluation and moved numerous times in an attempt to secure adequate housing. Appellant’s second caseworker made visits in July and August of 1980 to Appellant’s residence and found it to be in compliance with the court order.

Concerning Appellant’s failure to involve herself in the BVR and WIN programs until after the filing of the termination petition, Appellant claimed that she had severe problems with her teeth which were not remedied until sometime after July of 1980. The second caseworker also testified to Appellant’s failure to follow through with the mental health counseling program. This program was never made a part of either court order involving treatment plans. Also, the mental health counseling, as recommended to Appellant on August 13, 1980, was deemed unnecessary by Appellant on August 15, as she was no longer severely depressed.

Appellant had previously admitted, to her caseworker, problems with alcohol and drug abuse, as well as problems in dealing with her children. Appellant was also unemployed and receiving public assistance prior to the filing of the termination petition.

In the instant case, we have determined that no six month period existed in relation to Appellant’s failure and refusal to perform parental duties. However, even if a six month period had been proven, that fact alone will not support a determination of failure to perform parental duties where the totality of the circumstances, including evidence of the parent’s individual circumstances and any explanation offered by her, does not warrant termination of her rights. In re Adoption of J.A.B., 487 Pa. 79, 408 A.2d 1363 (1979). A finding of abandonment will not be predicated on parental conduct which is reasonably explained or which resulted from circumstances beyond the parent’s control; it may result only when a parent has failed to utilize all available resources to preserve the parental relationship. In re Burns, 474 Pa. 615, 379 A.2d 535 (1977). Performance of parental obligations must be measured in light of what would be expected of an individual in circumstances in which the parent under examination finds herself. In re Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981).

Despite the burden of problems Appellant has faced she, at the time of the hearing on the petition, was currently attending mental health counseling, had signed up for .the WIN program and was working in a cafe. We cannot say that, under these facts, Appellant has either evidenced a settled purpose of relinquishing parental rights or has refused and failed to perform her parental duties.

The Order entered June 8, 1981 is reversed.

BECK, J., concurs in the result.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I must dissent from the majority’s decision today which concludes that the evidence was insufficient to establish grounds for the involuntary termination of appellant’s parental rights. In doing so, the majority invades the province of the trial court since that court’s decision to terminate appellant’s parental rights when supported by competent evidence should be sustained on appeal. In re Burns, 474 Pa. 615, 379 A.2d 535 (1977).

The majority’s view is set forth in the following:

“It is clear from these facts that as to L.M.C., no six-month period elapsed, as visits took place on January 15 and July 7, 1980. Although six months did elapse in regard to M.B.C.C., during three of the six months, CSEC was either on strike or did not have a caseworker assigned to Appellant. Also, absent any evidence as to why M.B. C.C. was not taken to the agency for the July 7,1980 visit, we are unprepared to conclude that Appellant did not, in fact, desire or request visitation with M.B.C.C. at that time. We therefore find that, under these specific circumstances, no continuous six-month period elapsed as required by § 311, in regard to M.B.C.C.” at 1028 (emphasis in original).

When analyzing whether the adjudication of the orphans’ court will be disturbed in an involuntary termination proceeding, we must apply the following guidelines:

“The adjudication of the orphans’ court will not be disturbed if ‘the record is free from legal error and ... if the chancellor’s findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence.’ Cohen Will, 445 Pa. 549, 550, 284 A.2d 754, 755 (1971); Holtz Will, 422 Pa. 540, 544, 222 A.2d 885, 888 (1966); Hunter Will, 416 Pa. 127, 136, 205 A.2d 97, 103 (1964).
There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this Court has held that the parental obligation is a positive duty which requires affirmative performance. In re Adoption of Orwick, 464 Pa. 549, 347 A.2d 677 (1976); In re Adoption of Mahlon Nichelle McCray, [460 Pa. 210, 331 A.2d 652] supra; Appeal of Diane B., 456 Pa. 429, 321 A.2d 618 (1974); In re Smith’s Adoption, 412 Pa. 501, 194 A.2d 919 (1963). This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child. In re Adoption of Mahlon Nichelle McCray, supra; Appeal of Diane B., supra; In re Adoption of Jagodzinski, 444 Pa. 511, 281 A.2d 868 (1971). Because a child needs more than a benefactor, parental duty requires that a parent ‘exert himself to take and maintain a place of importance in the child’s life.’ Appeal of Diane B., supra, 456 Pa. at 433, 321 A.2d at 620, quoting In Re: Adoption of J.R.F., 27 Somerset L.J. 298, 304-05 (Pa.C.P.1972).
With these principles in mind, the question whether a parent has failed or refused to perform parental duties must be analyzed in relation to the particular circumstances of the case.”
In Re Burns, 474 Pa. 615, 379 A.2d at 540.

In the instant case, the majority reasons that because the social worker brought the children to visit appellant on January 15th and also because the social worker brought the elder daughter, L.M.C., to the agency to see appellant on July 7th, appellant performed her parental duties. Under the circumstances of this case, this writer declines to adopt such a confined approach. Id.

With respect to the younger daughter, M.B.C.C., the majority concedes that “six months did elapse”; however, the majority again excuses appellant’s failure to perform her parental duties because the agency “was either on strike or [the agency] did not have a caseworker assigned to Appellant”. Slip Opinion at 5. The record, however, shows that the agency did not frustrate appellant’s attempts to perform during these times. In fact, during the strike, the agency’s supervisors resumed the duties of the caseworkers. Ironically enough, a visit was arranged during the first part of the strike, on January 15th, and appellant did speak to a supervisor when she notified the Agency that she had moved. Therefore, on these facts, the strike is not an excuse for appellant’s failure to perform her parental duties.

Similarly, the majority superimposes a rule in adoption cases which states that a parent’s failure to perform is negated by the fact that a caseworker is not specifically assigned to that parent’s case. In this case, appellant can-celled an appointment for May 6th stating that she was ill. Then, on May 9,1980, appellant’s caseworker transferred the case to a second caseworker, who did not receive appellant’s case until June 9, 1980. Nonetheless, appellant could have called if she had wanted to visit with the children. In other cases, our courts have required as much:

“Parental duty does not require the impossible, but may encompass that which is difficult and demanding. A parent may not yield to every problem, but must act affirmatively with good faith, interest and effort, to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances.” In re Burns, 474 Pa. at 626, 379 A.2d at 541. (Emphasis added) (Citations omitted).

As a result, this writer refuses to require much less from appellant.

Although we may take into consideration a parent’s personal crisis when determining whether that parent has failed to perform his or her parental duties, such an allegation is not dispositive. Rather, we have applied the following guidelines:

“A period of asserted hardship does not completely relieve a person of parental responsibilities. Compare In re Adoption of M.T.T., [467 Pa. 88, 354 A.2d 564] supra, (imprisoned father utilized available resources thereby precluding involuntary termination of parental rights) with Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975) (parental rights of imprisoned father terminated for failure to take advantage of available resources.) The pertinent inquiry is whether the parent has utilized those resources at his or her command in establishing a close relationship with the child. Where the parent does not exercise reasonable firmness ‘in deciding to yield to obstacles’ his other rights may be forfeited. See In re: Adoption of J.R.F., 27 Somerset L.J. at 304.” Adoption of McCray, supra, 460 Pa., at 217, 331 A.2d at 655. Matter of Adoption of David C., 479 Pa. 1, 10, 387 A.2d 804, 808 (1978) (emphasis added).

First of all, appellant’s children were adjudicated dependent in 1979. At that time, the court ordered appellant to obtain adequate housing, cooperate with the Bureau of Vocational Rehabilitation and the WIN programs, and to cooperate with a psychological evaluation and with casework counseling.

From July 5,1979, until May 9,1980, appellant had resided at four different addresses (i.e., 516 East 6th Street, 247 East 23rd Street, 44 West 19th Street, and 149 East 23rd). According to the first counsellor, appellant did not do anything to obtain adequate housing and did not develop her job skills or secure employment. N.T. 13.

Appellant told the counsellor that her excuse for not participating in the programs was because “she first wanted to get her teeth removed and get false teeth put in.” N.T. 14. However, the counsellor also stated that appellant agreed to cooperate with a psychological evaluation because she was having a drinking problem and “was having a difficult time dealing with the children.” N.T. 14. Although appellant did cooperate with the evaluation, she did not follow through with the counseling.

Beginning with June 25th, appellant had a different caseworker, G.M.C. During the next few months, this caseworker discussed the BVR and WIN programs and also discussed the court order. Finally on August 13th, appellant “again discussed the fact that she could not go to BVR and WIN because of her teeth. She had to have that taken care of before she would follow through with anything.” N.T. 24. During this conversation, appellant also stated that she was “severely depressed.” N.T. 25. The counsellor urged appellant to go to a health center; however, in appellant’s opinion, she was not in need of counselling. N.T. 25.

At this time, appellant’s housing situation at 215 East 8th Street was described in the following manner:

[The Second Social Worker]

“A The upstairs on the second floor she had a roommate. When you came in the front door,, there was a living room. Over off that was another room with a very large doorway. About the size of that doorway there was a bed in there, and we discussed who slept in there. She said her roommate, and there was—there might have been some curtains, I am not too sure, over it or it might have been open. I remember it being all open at that point. There was a bedroom, I think that [appellant] slept in and there was another room where [appellant] had a dog at that point, and the dog and the puppies were in there.
Q So, there was an extra bedroom there?
A There was a bedroom, yes.
Q Okay, so to your knowledge, then, did [appellant] at that time have adequate housing for the children in terms of space?
A In terms of space, there was an extra bedroom for the children.
Q So, then, to the best of your knowledge at that time, she was complying with the Court Order regarding housing?
A Regarding housing, yes.”
N.T. 29-30.

The record shows that the evidence concerning the other aspects of the court order (i.e., the job counselling and casework counselling) were in dispute. The counsellors’ testimony established that appellant did not follow through with the programs. Although appellant did not refute the fact that she failed to sign up for the programs previously, she stated at the time of the hearing that she had signed up for WIN and also had applied to sit for an examination to qualify for a nurse’s training program. N.T. 33-34. Additionally, appellant stated that, for the past two weeks, she had been employed at a local cafe on a part-time basis. N.T. 35. It was on these facts that the trial court concluded that appellant

“failed to cooperate with the Agency in trying to be rehabilitated. It is obvious that she had some interest, but not a deep concern for the children. .. When the termination Petition was filed she then decided that she thought she wanted the children. She testified that she never expected this to happen so quickly; that is, that the children would be taken away from her. She has had two years to prove herself and this Court cannot see that she should have any more time to pretend that she wants to mother the children. A mother must be positive in her desire to raise her children and must not allow her own pleasures in life to come first. Her first obligation, is to the children, and this respondent was happy allowing the Agency to bring up these two girls.. . . ” Trial Court Opinion at 3-2. (Emphasis added).

It is obvious from the trial court’s opinion that it found appellant’s testimony about her efforts to rehabilitate to be less than credible. Thus, the trial court’s findings will not be disturbed under these circumstances. In Re D.K.W., 490 Pa. 134, 415 A.2d 69 (1980); In re William L., supra; see also In Re L.A.G., 490 Pa. 85, 89, 415 A.2d 44, 47 (1980) (The Court rejected appellant’s claim that her conduct was not weighed adequately considering the totality of the circumstances.) Additionally, we note that appellant’s failure to perform her parental duties resulted directly from circumstances which were the product of her own making since she did not “utilize those resources at .. her command in establishing a close relationship” with her children. Matter of Adoption of David C., 479 Pa. at 10, 387 A.2d at 808.

Hence, I must dissent from the majority’s finding that the trial court’s decision was not supported by competent evidence.

      . We note, with disapproval, that the Petition for Involuntary Termination of Parental Rights filed with the orphans’ court on October 8, 1980 is a “form petition” (Form A-4) containing a large number of words and phrases which have been struck through with typewriting. The decree attached to the Petition also contains whole sections which have been crossed out, both with blue and black ink. An examination does not permit any conclusion as to whether any, some or all of these deletions and amendment(s) were made by counsel for CSEC, the lower court, or some other party. The Petition does not contain all of the allegations required by Supreme Court Orphans’ Court Rule 15.4(a). We would submit that the demanding standards of the Adoption Act, the strong policy of restraining from interfering with the family enunciated both by our Legislature and our courts, and the need for adequate review both by the orphans’ and appellate courts require a higher standard of work product than presented here. Cf. In Re William L., 477 Pa. 322, 328-35, 383 A.2d 1228, 1231-34 (1978), U.S. cert. denied sub nom., Lehman v. Lycoming County Children’s Services, et al., 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978).

      . We note that the lower court failed to specify what six-month period it based its decision on.

      . BVR refers to the Bureau of Vocational Rehabilitation; WIN refers to a work incentive program for the unemployed.

      . None of these orders have been made part of the record in the instant case. The orders of April 4 appear as an Appendix to Appellant’s brief and the order of June 2 was read into the record at the hearing on April 2, 1981 at page 21.

      . No reason is forwarded as to why only one child was brought to the agency for Appellant’s visit.

      . Appellant requested visitation on July 22, 1980, but the visit was scheduled for August 7 due to the caseworker’s vacation.

      . We note, with disapproval, the lower court’s non-specificity in using the conjunctive “or” in relation to the separate grounds for termination found in section 311(1).

      . On April 2, 1981, the date of the hearing, appellant had moved. She testified that she was residing at a home leased to the “Laird” family at 927 West 17th. N.T. 47. However, for the purposes of the instant case, the relevant conduct at issue was the six month statutory period which occurred in 1980. See 23 P.S. § 2511. See also In Re J.F., 487 Pa. 115, 408 A.2d 1382 (1979).


author: WIEAND, Judge:

text:
    452 A.2d 1032
    COMMONWEALTH of Pennsylvania, Appellant v. Ronald MEOLI.
    Superior Court of Pennsylvania.
    Argued April 23, 1982.
    Filed Oct. 15, 1982.
    Reargument Denied Dec. 17, 1982.

      David M. McGlaughlin, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Theodore Q. Thompson, Ambler, for appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   WIEAND, Judge:

In this appeal by the Commonwealth, it is contended that the trial court erred when, in response to an omnibus pre-trial motion, it quashed informations charging Ronald Meoli with disorderly conduct, simple assault and resisting arrest. We agree and reverse.

After an appeal had been filed, the trial judge prepared and filed a memorandum opinion in accordance with Pa.R. A.P. 1925(a). In that opinion he commendably conceded that the information charging simple assault had been quashed erroneously. He explained the quashing of the resisting arrest charge on grounds that Meoli had not committed an offense in the presence of the arresting officer and that the Commonwealth, therefore, could not prove the lawful arrest which is an essential element of the crime of resisting arrest. The information charging disorderly conduct was quashed because, in the opinion of the trial judge, Meoli had not been guilty of that offense.

The trial court’s order was an inappropriate response to appellant’s motion to quash. A motion to quash may be used to raise defects apparent on the face of the information or other defects that would prohibit prosecution. 2 Wharton’s Criminal Procedure § 348 (12th ed. Torchia 1975). See also: Commonwealth v. Roundtree, 469 Pa. 241, 247 n. 3, 364 A.2d 1359, 1362 n. 3 (1976) (proper procedure for objecting to length of delay in being brought to trial is a motion to quash); Commonwealth v. Fiume, 278 Pa.Super. 75, 419 A.2d 1364 (1980) (indictment properly quashed where it charged a crime beyond the statute of limitations and there were no facts to bring it within exceptions to statute); Commonwealth v. Costigan, 272 Pa.Super. 520, 524 n. 4, 416 A.2d 1018, 1020 n. 4 (1979) (length of delay); Commonwealth v. Creamer, 236 Pa.Super. 168, 173, 345 A.2d 212, 214-15 (1975) (indictment properly quashed where no act or failure to act charged in the indictment occurred in indicting county). A motion to quash an information is neither a guilt determining procedure nor a pre-trial means for determining the sufficiency of the Commonwealth’s evidence. See and compare: Commonwealth v. Levinson, 480 Pa. 273, 289, 389 A.2d 1062, 1069 (1978); Commonwealth v. Webster, 462 Pa. 125, 131-32, 337 A.2d 914, 917, cert. denied, 423 U.S. 898, 96 S.Ct. 201, 46 L.Ed.2d 131 (1975); Commonwealth v. Coyle, 415 Pa. 379, 396, 203 A.2d 782, 791 (1964). The inadequacy, incompetency, or even illegality of the Commonwealth’s evidence does not constitute grounds for quashing an information. See: United States v. Calandra, 414 U.S. 338, 344-45, 94 S.Ct. 613, 618, 38 L.Ed.2d 561, 569 (1974); Commonwealth v. Webster, supra.

In the instant case, the order quashing the informations was premature. The court had not heard the entire Commonwealth case against Meoli. It had heard only one witness, a policeman. No testimony had been received from Meoli’s wife, the neighbor who called police because of Meoli’s conduct toward his wife, or other policemen who were present on the scene. Until these witnesses had been heard, the court could not possibly make a determination that the Commonwealth would be unable to establish a prima facie case against appellee.

Appellee argues that the trial court’s order should be affirmed because his arrest had been without probable cause and, therefore, was illegal. However, “ ‘the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent indictment or information, by which the court acquires jurisdiction over the person of the defendant.’ ” Commonwealth v. Krall, 452 Pa. 215, 219, 304 A.2d 488, 490 (1973), quoting 41 Am.Jur.2d, Indictments and Informations § 18, at 891. See also: Albrecht v. United States, 273 U.S. 1, 5, 47 S.Ct. 250, 251, 71 L.Ed. 505, 508 (1927); United States v. Hughes, 311 F.2d 845, 846 (3rd Cir.1962); Commonwealth v. Sudler, 496 Pa. 295, 304, 436 A.2d 1376, 1380 (1981); Commonwealth v. Bable, 286 Pa.Super. 203, 206, 428 A.2d 643, 644 (1981); Commonwealth v. Kazior, 269 Pa.Super. 518, 521-22, 410 A.2d 822, 823 (1979); Commonwealth v. Walker, 243 Pa.Super. 388, 393-95, 365 A.2d 1279, 1281-82 (1976).

Moreover, the limited evidence heard by the trial court did not support its conclusion that Meoli’s arrest had been unlawful. On December 24, 1980, at or about 7:15 p.m., police arrived at 623 North Cannon Avenue, Lansdale, Montgomery County, in response to a call from a neighbor that Meoli had been drinking, was possibly intoxicated and had been abusing his estranged wife. The police were admitted to Mrs. Meoli’s residence voluntarily by Mrs. Meoli. Although distraught, she was able to tell police that her husband had become intoxicated and had abused her by striking her. She also told police that her requests that Meoli leave had been refused. Officer David Bell spoke to Meoli and repeated Mrs. Meoli’s request that Meoli leave. To this Meoli responded that he was not going to leave and that the police would have to shoot him to get him out of the house. After continued requests to leave and refusals by Meoli, he was told that he was under arrest for trespass. A struggle ensued, and as a result thereof, Meoli was arrested on the instant charges.

Contrary to appellee’s contentions, the police did not require a warrant to enter Mrs. Meoli’s home. They were admitted consensually by Mrs. Meoli, the sole tenant. Appellee was not a resident of the premises, and his consent was not necessary to a police entry effected at the invitation of Mrs. Meoli. After the police had been admitted and after appellee had refused both orders and entreaties to leave, he could be arrested without warrant for criminal trespass, an offense which occurred in the presence of the police.

“The crime of defiant trespass occurs when a person remains in a place where he is not privileged to remain after notice of trespass is given.” Commonwealth v. Conyers, 238 Pa.Super. 386, 389, 357 A.2d 569, 570 (1976) (footnote omitted). See also: 18 Pa.C.S. § 3503(b)(1). “An offense under this subsection constitutes a misdemeanor of the third degree if the offender defies an order to leave personally communicated to him by the owner of the premises or other authorized person. Otherwise it is a summary offense.” 18 Pa.C.S. § 3503(b)(2). Because Meoli’s refusal to leave, as described by the Commonwealth witness, constituted the misdemeanor of defiant trespass and occurred in the presence of the police, they were authorized to effect an arrest without warrant. See: Commonwealth v. Trefry, 249 Pa. Super. 117, 122, 375 A.2d 786, 789 (1977), allocatur denied; Commonwealth v. Reeves, 223 Pa.Super. 51, 52-53, 297 A.2d 142, 143 (1972); Commonwealth v. Vassiljev, 218 Pa.Super. 215, 219-20, 275 A.2d 852, 854 (1971).

Finally, as the trial court observed in its opinion, even an unlawful arrest will not justify or excuse an assault upon an arresting police officer. Commonwealth v. Temple, 258 Pa.Super. 269, 275, 392 A.2d 788, 791 (1978); Commonwealth v. Whitner, 241 Pa.Super. 316, 322-24, 361 A.2d 414, 417-18 (1976). This is clearly set forth in 18 Pa.C.S. § 505(b)(l)(i) which provides that the use of force is not justified to resist an arrest by a peace officer, even though the arrest is unlawful.

For all these reasons the order quashing the several informations was in error.

Reversed and remanded for further proceedings.

      . 18 Pa.C.S. § 5503.

      . 18 Pa.C.S. § 2701.

      . 18 Pa.C.S. § 5104.