author: WIEAND, Judge:

text:
    500 A.2d 85
    COMMONWEALTH of Pennsylvania, Appellee, v. Anthony L. LETA, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Frank Richard PRICCI, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Joseph O. BALDASSARI, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1984.
    Filed Sept. 13, 1985.
    Reargument Denied Nov. 18, 1985 in No. 2261.

      Peter T. Campana, Williamsport, for appellant (at 1390). William T. Hall, Scranton, for appellant (at 1422).
    James M. Zipay, Scranton, for appellant (at 2261).
    Peter J. Hart, Philadelphia, for Commonwealth, appellee.
    Before WIEAND, DEL SOLE and POPOVICH, JJ.
   WIEAND, Judge:

Frank Pried and Joseph Baldassari of Scranton, Pennsylvania, and Anthony Leta of Williamsport, Pennsylvania, were tried nonjury before the Honorable Albert E. Acker, specially presiding, and were found guilty of bookmaking and criminal conspiracy. At trial, the Commonwealth relied upon incriminating evidence acquired by placing a tap on several telephones serving appellants’ respective premises. On direct appeal, the principal arguments made by appellants are that the Pennsylvania Wiretapping and Electronic Surveillance Control Act of October 4, 1978, P.L. 831, No. 164, 18 Pa.C.S. § 5701 et seq., is unconstitutional and, if valid, that it was improperly applied against them. We find no merit in these arguments and affirm.

The law is well settled that statutes duly enacted by the legislature are presumed to be constitutional. Estate of Cox, 327 Pa.Super. 479, 485, 476 A.2d 367, 370 (1984) and cases cited therein. A statute will not be held unconstitutional except upon a showing that the statute is “clearly, palpably and plainly” in conflict with constitutional provisions. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981).

Baldassari contends that the Pennsylvania Act is in violation of the United States Constitution’s Fourth Amendment. He argues that the Pennsylvania statute is modeled after Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., which was held unconstitutional in United States v. Whitaker, 343 F.Supp. 358 (E.D.Pa.1972) because of a lack of specificity. However, Whitaker was subsequently reversed by the Third Circuit, United States v. Whitaker, 474 F.2d 1246 (3rd Cir.1973), cert, denied, 412 U.S. 953, 93 S.Ct. 3003, 37 L.Ed.2d 1006, and is not controlling of our decision. Other circuit courts have upheld Title III in the face of various constitutional challenges. See: United States v. Turner, 528 F.2d 143 (9th Cir.1975), cert, denied, 423 U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371; United States v. John, 508 F.2d 1134 (8th Cir.1975), cert, denied, 421 U.S. 962, 95 S.Ct. 1948, 44 L.Ed.2d 448; United States v. Sklaroff, 506 F.2d 837 (5th Cir.1975), cert, denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105; United States v. Ramsey, 503 F.2d 524 (7th Cir.1974), cert, denied, 420 U.S. 932, 95 S.Ct. 1136, 43 L.Ed.2d 405 (1975); United States v. Tortorello, 480 F.2d 764 (2nd Cir.1973), cert, denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86; United States v. Fino, 478 F.2d 35 (2d Cir. 1973), cert, denied, 417 U.S. 918, 94 S.Ct. 2623, 41 L.Ed.2d 223 (1974) and United States v. Cafero, 473 F.2d 489 (3rd Cir.1973), cert, denied, 417 U.S. 918, 94 S.Ct. 2622, 41 L.Ed.2d 223 (1974).

Moreover, although the United States Supreme Court has never directly decided the constitutionality of Title III, it has decided numerous issues raised under the Act and has never even intimated that the law was invalid. United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977); United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974); United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974) and United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Contrary to Baldassari’s urgings, we decline to adopt the view of the United States District Court in Whitaker.

Leta contends that the Pennsylvania Constitution prohibits all nonconsensual wiretaps. This challenge to the Act’s constitutionality was considered recently by this Court and rejected. Commonwealth v. Doty, 345 Pa.Super. 374, 498 A.2d 870 (1985); Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438, 457 (1985). The contention advocated by Leta and Baldassari that the Act is less restrictive than Title III and is thus in conflict with the United States Constitution’s Supremacy clause was also rejected in Commonwealth v. Doty, supra.

Special Agent Russell Thomas, the affiant on the applications for wiretaps, possessed expertise in investigating illegal gambling activities and the use of electronic investigatory equipment. He stated facts which the issuing authority found sufficient to constitute probable cause for granting wiretap orders. Thomas’ facts were corroborated by information obtained by FBI agents from confidential informants. It is unnecessary to recite those facts in this opinion. They have been recited in the thorough and careful opinion of the suppression court. Those facts demonstrated clearly that probable cause existed for issuing an order to intercept telephone conversations.

Thomas also testified that normal investigative techniques either had been attempted and had failed to disclose the scope and all participants in the gambling operation or that normal techniques could not reasonably be expected to be successful. We reject appellants’ argument that the summoning of a grand jury is an ordinary investigative tool which should first have been attempted by the Commonwealth. We also reject the argument that a wiretap was premature until grants of immunity to known participants had failed to disclose the remaining participants. The use of a grand jury is not a normal investigative tool, Commonwealth v. Doty, supra; and Thomas testified that informants would refuse to testify at trial proceedings even if they were granted immunity. Thomas also represented that he feared a breach of security would result if he actively sought participants who would be willing to testify against others engaged in the gambling ring. The willingness of a few participants to testify at grand jury proceedings after appellants had been arrested is not evidence that the same participants would have cooperated prior to the time that arrests were made. Subsequent cooperation was induced by incriminating information obtained by the Commonwealth during the investigation and disclosed after arrests had been made.

At the suppression hearing, the Commonwealth introduced into evidence the minimization instructions to monitors, the monitors’ logs, a publication available to the monitors at the plant concerning gambling jargon, and progress reports. The monitors’ supervisor, William O’Connell, testified that the monitors had been properly trained and instructed in minimization procedures. All relevant calls were intercepted in their entirety, and calls initially determined to be non-pertinent were only spot monitored. The issuing authority visited the site of the intercept and observed the monitors’ procedures. Moreover, taps were terminated prior to the date provided in the order. Finally, physical surveillance of the targets was conducted so that no monitoring of calls was conducted if the target was not at the premises. Appellants do not point to any specific calls or a pattern of calls where improper or inadequate minimization was performed. With very few exceptions, all intercepted and fully monitored communications were pertinent to the investigation. We conclude, therefore, that the Commonwealth adequately proved compliance with minimization requirements, both extrinsic and intrinsic. See: Commonwealth v. Doty, supra.

The first of four wiretaps was placed on the telephones serving the premises of Frank Pricci. Subsequent orders were obtained authorizing taps on telephones being used by Baldassari and Leta. Information constituting probable cause to tap the subsequent telephones was obtained in part from the initial interceptions of Pricci’s telephone conversations. Leta contends that the evidence obtained against him on the subsequent taps should be suppressed because he was not named as a target in the first order. The Commonwealth, however, did not have probable cause to believe that conversations with Leta would be intercepted by the taps on Pricci’s telephones; therefore, Leta was not required to be named as a target. 18 Pa.C.S. § 5709(3)(i). The Commonwealth’s information at the time the Pricci taps were authorized was that Pricci’s contact was with Baldassari, and that Baldassari, in turn, worked with Leta and not with Pricci. Information subsequently obtained disclosed that Pricci had become discontented with the Baldassari connection and thereafter initiated direct contact with Leta. The initial order was not defective because it failed to name Leta as a target.

Leta contends also that the three subsequent wiretaps were impermissible extensions of the original order. We disagree. The suppression court found that there had been four distinct orders involving different facilities and targets, each based on new probable cause. The record supports this finding. The first tap was on Pricci’s telephone. Information subsequently obtained indicated that Baldassari was operating at a higher level. Taps on Baldassari’s phones, therefore, were authorized. When Baldassari changed telephone numbers, a third authorization was obtained. Finally, information obtained from the first taps revealed that Leta was operating at an even higher level. Therefore, an order was also obtained to tap his telephones. Each application was made and each order was issued in compliance with the mandate of 18 Pa.C.S. § 5710(a)(6) that new information, different and in addition to previous information, be presented to authorize a new order for the same target or facility.

Leta contends finally that the suppression court improperly curtailed his cross-examination of Commonwealth witnesses during the suppression hearing. The hearing court allowed Commonwealth witnesses to refuse to answer some of defense counsel’s questions on cross-ex-animation because of the danger that answers would disclose identities of confidential informants. The court, prior to each ruling, questioned the witness in camera without defense counsel being present and determined that the answer, in fact, was likely to disclose identities of confidential informants. Leta does not contend that he was entitled to obtain disclosure of informants identities, but he argues that his right of confrontation was unduly restricted. We disagree. This Court, in Commonwealth v. Miller, 334 Pa.Super. 374, 483 A.2d 498 (1984) announced the rule that a court may conduct an in camera hearing as a compromise of the conflicting interests of the Commonwealth and the accused under similar circumstances. Id., 334 Pa.Superior Ct. at 382-388, 483 A.2d at 503-504. The procedure used in the instant case conformed to guidelines announced in Commonwealth v. Miller.

The remaining contentions made by appellants do not involve the Wiretap Act. Leta and Pricci contend that the searches of their premises and persons were unlawful for various reasons. Leta also contends that his property was improperly seized. Specifically, he contends that currency in the sum of $9,709.00, was unlawfully seized and should be returned to him. These contentions were properly disposed of by the trial court, and we need not discuss them further in this opinion. See: Trial court opinion at pp. 97-115 and 127-128.

Appellants’ final contentions pertain to the sentences imposed. Leta was sentenced to two consecutive terms of imprisonment for IV2 to 3 years because of his conviction on two counts of bookmaking. He was also given a concurrent term of imprisonment of 1 to 2 years for conspiracy. In addition, he was fined $20,000.00. Baldassari was sentenced to two concurrent terms of imprisonment, one of IV2 to 3 years for bookmaking, one of 1 to 2 years for conspiracy. He was fined $10,000.00.

The matter of sentencing is within the sound discretion of the sentencing court. Commonwealth v. Holler, 326 Pa.Super. 304, 306, 473 A.2d 1103, 1105 (1984). A sentence will not be disturbed on appeal unless there has been a manifest abuse of that discretion. Commonwealth v. Black, 321 Pa.Super. 44, 45, 467 A.2d 884, 885 (1983). Leta argues that his sentence was excessive because gambling, a non-violent crime, is not a crime against society. The sentencing court, however, observed that Leta had been the top level operator of a very extensive gambling network. Leta had also been convicted of gambling charges on prior occasions. When the sentence is examined in the light of these facts, we cannot conclude that the sentence was manifestly excessive.

Similarly, we disagree with the contention that there was no finding of Leta’s ability to pay the fines imposed. The Commonwealth presented evidence concerning the large scope of the gambling activity participated in by Leta. More importantly, the police had seized approximately $12,000.00 from Leta’s person. It seems clear that Leta had the capacity to pay the fines imposed.

During Baldassari’s sentencing hearing, the court said:

This sentence is given after consideration of Purdons Statute, 42 Purdons Statute 9721 and 9722, which deal with the question of probation, and 9725 which deals with Total Confinement. In looking through the various elements considering probation, we do believe, as your Attorney argued, that a substantial number are, in fact, applicable, however we look particularly at Section 3 of 42 Pa.C.S.A, [sic] 9725, dealing with how the public expects a crime of this type to be handled by the Court. This case is the first wiretap case, wiretap gambling case in Pennsylvania. There were literally hundreds of thousands of dollars spent by the prosecution and the development of this case by the Commonwealth. This is the first effort, successful effort, organized effort to get to the top Bookmakers in the State of Pennsylvania. The public, when that type of an endeavor goes forward, expects the Court will do more than hit a person on the back of the wrist and say “You are a bad boy.”, [sic] and send them home. It expects there will, in fact, be imprisonment. It expects that money of the taxpayers is not wasted. Now, as I pointed out to you previously when people are engaged in gambling as a full-time occupation for profit, money is, in my view, is not the obstacle to prevent them from continuing in that business. The only person, the only thing that those persons actually believe is that some Judge some day is going to put them behind bars, and that is what has occurred in this case. That is the price you have to pay.

(Sentencing transcript at pp. 22-23). Baldassari argues that the expenditure of funds in investigating criminal conduct and in prosecuting therefore is an improper reason for imposing a sentence of imprisonment. After reviewing the sentencing hearing in its entirety, we conclude that the statements complained of by Baldassari were made to illustrate that society in general, and the attorney general and the sentencing court in particular, considered the particular crime to be a serious one which, in view of the magnitude of the operation, required the imposition of a term of imprisonment in order to deter others. Anything less, especially considering that Baldassari had been convicted of similar crimes on two prior occasions, would have depreciated the seriousness of his criminal activity.

The judgments of sentence are affirmed.

      . 18 Pa.C.S. § 5514.

      . 18 Pa.C.S. § 903.

      . We do not reach Baldassari’s contentions that the Act impermissibly delegates authority to apply for wiretaps to Deputy Attorney Generals and Assistant District Attorneys and that the Act is improperly applicable to crimes not listed in Title III because the wiretaps in the instant case were applied for by the Attorney General and gambling is a crime specifically listed in Title III. See: Commonwealth v. Doty, supra.

      . Thomas is a special agent with the Office of the Attorney General, Bureau of Criminal Investigations.

      . Our conclusion is based upon a review of the transcript of the suppression hearing and the trial court's opinion. Although the applications were introduced into evidence at the suppression hearing, they were not included in the record presented to this court. Appellants have not challenged the sufficiency of the affidavit to show probable cause. Rather, they have attacked the veracity of the affiant and the fact that Thomas relied upon information provided by FBI agents. It is proper for an affiant to rely upon information provided by other law enforcement officers. See: Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979); Commonwealth v. DeGeorge, 319 Pa.Super. 244, 466 A.2d 140 (1983), rev’d on other grounds, 506 Pa. 445, 485 A.2d 1089 (1984).


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    500 A.2d 91
    Kathy Jo BRESNOCK, a minor, Joseph J. Bresnock and Alice M. Bresnock, his wife, Appellants, v. Joseph R. BRESNOCK and Veronica R. Bresnock, his wife.
    Superior Court of Pennsylvania.
    Argued April 18, 1985.
    Filed Sept. 20, 1985.
    Reargument Denied Nov. 15, 1985.

      W.J. Krencewicz, Shenandoah, for appellants.
    James R. Kilker, Pottsville, for appellees.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   WICKERSHAM, Judge:

Joseph J. and Alice Bresnock appeal from the order of the Court of Common Pleas of Schuylkill County awarding custody of their granddaughter Kathy Jo to the child’s mother, Veronica Bresnock Marzec. The fifth party to this action, Kathy Jo’s father, Joseph R. Bresnock, is now deceased.

Kathy Jo Bresnock was born on January 18, 1975. Her parents, Veronica and Joe Bresnock, were married subsequent to her birth, and the family, along with Veronica’s older daughter April Lynn, moved to Goose Creek, South Carolina. There the parents operated “Guys and Dolls,” a bar featuring go-go dancing. Veronica supplemented the family income by performing at various times over the years as a go-go dancer. During the time that the parents ran the bar business in South Carolina, they allowed Kathy Jo to go to the home of her paternal grandparents (appellants herein) in Frackville, Pennsylvania, for extended visits. There was differing testimony as to when these visits began, but in any case, by 1980, Kathy Jo was spending the majority of her time at appellants’ home, and appellants were providing her with support.

In the fall of 1981, Veronica and Joe returned to Pennsylvania because of Joe’s affliction with terminal brain cancer. Veronica made arrangements for April to stay with Veronica’s sister in McKeesport, and she and Joe moved into appellants’ home in Frackville. The relationship between appellants and their son and daughter-in-law soon became estranged, however, caused in part by Joe’s irrational and violent behavior resulting from the brain tumor. This estrangement resulted in appellants filing a petition for custody of Kathy Jo in January of 1982 and a protection from abuse petition against Veronica and Joe shortly thereafter. The latter matter was terminated by an agreement that Veronica and Joe would remove themselves from appellants’ home, but allow Kathy Jo to remain there temporarily. Veronica and Joe resided in a motel in Frackville until May of 1982, when Veronica requested that appellants take Joe back to appellants’ home because he was dying. Appellants did so. Veronica left Frackville at that point to attend to her daughter April, who was suffering from emotional problems allegedly brought on by prior sexual abuse at the hands of her step-father Joe Bresnock.

After Veronica left for McKeesport to be with April, Joe was hospitalized and subsequently died on June 26, 1982. Veronica returned to Frackville for her husband’s funeral and then leased a home in Allegheny County in which she, April, and two elderly boarders lived. With the exception of a few short visits with her mother and sister, Kathy Jo remained with appellants. Custody hearings were held on October 5, 1982, April 5, 1983, March 15, 1984, and June 24, 1984, culminating in the court’s order of August 28, 1984, awarding custody of Kathy Jo to Veronica. Appellants filed this timely appeal and were granted a supersedeas of the order by this court on September 10, 1984.

Appellants raise two issues before us:

1. Did the Court below err in awarding custody of the child to the mother, where the court failed to consider all relevant factors bearing upon the child’s physical, emotional, moral and spiritual well-being?
2. Does this case come before the appellate court upon a stale record?

Brief for Appellants at 3.

The fundamental issue presented is whether the lower court erred in awarding primary physical custody of Kathy Jo to Veronica, appellee herein. In reviewing custody orders, we, as an appellate court, are empowered to determine whether the lower court’s incontrovertible factual findings support its factual conclusions, but may not interfere with these conclusions unless they are unreasonable in light of the lower court’s factual findings, and thus, represent a gross abuse of discretion. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984) ; Beers v. Beers, 342 Pa.Super. 465, 493 A.2d 116 (1985) . The burden of proving that the lower court’s decision was manifestly erroneous or that it constituted a gross abuse of discretion falls upon appellant. Id. If appellant fails to meet this burden, then we have no choice but to affirm the decision of the trial judge. Id.

It is well settled that in resolving a custody dispute between a parent and a third party, including a relative such as a grandparent,

the parents’ right to custody will be forfeited only if convincing reasons “appear that the child’s best interest will be served by an award to the third party.” In such instances, the evidentiary scale favors the parent. What the hearing judge must do is to hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to tip the scale down on the third party’s side.

In Interest of James John M., 333 Pa.Super. 417, 422-24, 482 A.2d 637, 640 (1984). See also, Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983); Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980); Commonwealth ex rel. Miller v. Miller, 329 Pa.Super. 248, 478 A.2d 451 (1984); Cady v. Weber, 317 Pa.Super. 481, 464 A.2d 423 (1983), appeal decided, 322 Pa.Super. 550, 469 A.2d 1128 (1983); Commonwealth ex rel. Strunk v. Cummins, 258 Pa.Super. 326, 392 A.2d 817 (1978); Commonwealth ex rel. Williams v. Miller, 254 Pa. Super. 227, 385 A.2d 992 (1978); In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977).

In order to support their heavy burden, appellants allege that the lower court erred in failing to consider (1) the importance of preserving stability in Kathy Jo’s life and the emotional ties established between Kathy Jo and appellants; (2) the questionable moral character of Veronica and its probable effect on Kathy Jo; (3) the lack of a stable environment for Kathy Jo at her mother’s residence; (4) Kathy Jo’s preference to remain with appellants and her feelings of bitterness, anger, and hatred towards Veronica; and (5) the traumatic effect on Kathy Jo if she were removed from appellants’ home.

Upon careful examination of the record, it is apparent that, in resolving this custody case, the lower court applied the proper standard of proof as set out by the above-cited case law. After two and one-half years of litigation and four separate hearings, the court did, in a most painstaking and cautious manner, consider every aspect of Kathy Jo’s best interests. In its findings of fact, the court found that the homes of both appellants and appellee were adequate; that the mother’s new husband had an adequate income of between five and six hundred dollars per week; that the mother provided a comfortable home close to recreation facilities and Catholic schools; that Kathy Jo and her half-sister April indicated affection and got along well together; that the mother and her new husband enjoyed a normal and happy marital relationship; that appellants were ages sixty-nine and sixty-five and had maintained custody off and on since approximately 1978, providing for Kathy Jo’s education, religious training, and care; that appellants have great concern and love for Kathy Jo; that the actions of appellants caused tension during the mother’s attempts to visit her child; that there were several visits with the child since the mother’s marriage; and that the periods of marital strife between the mother and the late father and also between them and appellants herein were difficult times and were now behind them and did not affect the present situation.

We find adequate support in the record for all these factual findings and also find that they support the lower court’s conclusions. Furthermore, the lower court properly considered all of the relevant factors in providing for the best interests of Kathy Jo. Stability is certainly a factor, but it is not the sole criteria in a custody action. The fact that a child has not lived with a parent for a considerable length of time will not alone defeat that parent’s right to custody. In re Adoption of Farabelli, 460 Pa. 423, 333 A.2d 846 (1975); In Interest of James John M., supra; In re Custody of Hernandez, supra. The court found both appellants and appellee capable of offering stable environments for Kathy Jo.

Another factor considered by the court is that absent compelling reasons, siblings should be raised together whenever possible. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); Pilón v. Pilon, 342 Pa.Super. 52, 492 A.2d 59 (1985); Haag v. Haag, 336 Pa.Super. 1189, 485 A.2d 1189 (1984). The court considered that Kathy Jo and April showed affection towards one another, and by placing Kathy Jo’s physical custody with her mother, she would be reunited with her sister.

Likewise the court considered the fact that Kathy Jo expressed a desire to remain with her grandparents, and it acknowledged that she loved her grandparents very much. A minor child’s expressed preference to remain with a particular custodian is clearly a factor which should be considered, but it is not controlling. Hartman v. Hartman, 328 Pa.Super. 154, 476 A.2d 938 (1984); K.L.H. v. G.D.H., 318 Pa.Super. 330, 464 A.2d 1368 (1983); Commonwealth ex rel. E.H.T. v. R.E.T., 285 Pa.Super. 444, 427 A.2d 1370 (1981); Palmer v. Tokarek, 279 Pa.Super. 458, 421 A.2d 289 (1980). The weight to be accorded the child’s preference is to be determined by the trial court. K.L.H. v. G.D.H., supra; Commonwealth ex rel. Grimes v. Grimes, 281 Pa.Super. 484, 422 A.2d 572 (1980). The fact that a child has been well cared for and loved by her grandparents and the fact that the child prefers to remain with them, does not amount to such “convincing reasons” as would overcome the parent’s right to have custody of the child. Palmer v. Tokarek, supra. Furthermore, much of the anger expressed by Kathy Jo towards her mother appears to have been the result of statements made to the child by appellants. We note that Kathy Jo’s testimony concerning her mother was somewhat equivocal; she testified both that she hated her and that she liked her a little.

Nor did the court err in not finding Veronica to be a person of questionable moral character. The court stated that Veronica had supported herself, Joe, and her daughters by working as a go-go dancer and operating the Goose Creek bar. She testified that Joe was physically abusive and made her continue in this occupation. At some point in 1981, the bar was raided, and she, along with others, was arrested and fined. Both daughters were born out of wedlock, but she later married each girl’s father. She left Joe shortly before his death, but she explained that this was only because she had just discovered his alleged abuse of April. The court also considered that at the time of the first hearings, Veronica was no longer employed as a dancer. She was running a home for the aged, and the home study showed that the home and environment provided by Veronica was indeed clean, tidy, and adequate for the raising of her daughters. By the time of the last two hearings, Veronica had remarried, and was enjoying a stable, happy marital relationship.

A parent’s ability to care for her child must be determined as of the time of the custody hearing, not as of an earlier time. Hall v. Mason, 316 Pa.Super. 160, 462 A.2d 843 (1983); In re Custody of Frank, 283 Pa.Super. 229, 423 A.2d 1229 (1980). Further, unless it can be shown that the parent’s conduct has had a harmful effect on the child, it should have little weight in making a custody decision. In re Custody of Pearce, 310 Pa.Super. 254, 456 A.2d 597 (1983). See also Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); In re Wesley J.K., 299 Pa.Super. 504, 445 A.2d 1243 (1982); Commonwealth ex rel. Grimes v. Grimes, supra. Custody cannot reasonably be granted on the basis of a parent’s unsettled past unless the past behavior has an ongoing negative effect on the child’s welfare. Hartman v. Hartman, supra. There is absolutely no evidence in the record before us that Veronica’s past conduct has had any adverse effect on Kathy Jo, and, in any case, such conduct was just that — past—at the time of the hearings.

Finally, the court did consider the effect on Kathy Jo if appellee were given custody. The record contains testimony of an adoption coordinator from Schuylkill County Children and Youth Services, stating that, assuming Kathy Jo had lived with appellants for as long as appellants claimed, a sudden change in custody would be traumatic. Such a change would require preparation, visiting, planning, and cooperation. A social worker from Allegheny County also recommended a transition period if custody were transferred, and reported that Veronica was aware that Kathy Jo might have some adjustment problems and was ready to deal with them. Our review of the record shows that, before 1982, Kathy Jo had not lived exclusively with appellants (as represented to the adoption coordinator), but rather had lived with appellants and/or her parents together and separately at various times and in various locations over the years. The lower court considered all this, and noting that Kathy Jo is an intelligent and sensitive girl, it decided that she could make the necessary adjustment required by a custody grant to her mother. We agree. See Moorman v. Tingle, 320 Pa.Super. 348, 467 A.2d 359 (1983), aff'd, 505 Pa. 513, 481 A.2d 854 (1984); Palmer v. Tokarek, supra; Commonwealth ex rel. Strunk v. Cummins, supra. Furthermore, we find it difficult to visualize a transfer of custody from a present custodian to a non-custodian that would not be fraught with some trauma for a child.

In summary, the lower court took into consideration those factors which should be considered in determining the child’s best interest. It had the opportunity to observe the witnesses and the child, and to decide whether appellants’ evidence was weighty enough to tip the scales from Veronica’s side to appellants’ side. Appellants simply presented no convincing reasons why appellee’s prima facie right to the custody of Kathy Jo should be forfeited. Thus, we find no abuse of discretion in the court’s award of custody to appellee.

Appellants also argue that this case comes before us upon a stale record, so it should be remanded for further hearings. Appellants give as reasons for the staleness: (1) appellee has moved since the last hearing to a rural area outside McKeesport, (2) there has been no home evaluation of her present residence, and (3) it is unknown whether she still takes in boarders, lives with James Marzec, what her source of income is, or whether there are any school, churches, or other facilities nearby.

We find that none of these “reasons” require the record to again be opened and to result in yet further delay in transferring custody of Kathy Jo to her mother. Mr. Marzec testified at the March 15, 1984 hearing that he foresaw the family moving in the near future from their present rented residence to a purchased home. We have no reason to doubt that appellee has made sufficient arrangements in her new home for Kathy Jo’s return.

As appellee points out, we do not know whether appellants still live in the same house that was evaluated, whether their health is holding out, or whether a host of other possible changes have occurred since June of 1984. Due to the very nature of the court system, it is impossible to have instant determinations of appeals such as this. As in any other case, any number of events may have occurred in the interim between the lower court order and our decision. The lower court order herein was entered on August 28, 1984. We doubt that events have changed so dramatically since then so as to justify a remand in this already prolonged dispute. Four hearings resulted in extensive testimony from numerous witnesses. Based upon the record obtained therefrom, we suspect that this is just another attempt by appellants to delay Kathy Jo’s transfer. Appellants have already enjoyed the benefit of a three and one half year delay, including a supersedeas of the lower court order. Further unnecessary delay would be inexcusable. We remind appellants that in determining the proper custody of children, conditions must be evaluated as they exist at the time of the hearing. Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983); In re Custody of Frank, supra. That is exactly what the lower court did herein, and we affirm.

Order affirmed.

      . In November of 1983, during the instant proceedings, Veronica Bresnock married James Marzec, the natural father of her daughter April. They reside with April in or near McKeesport, Pennsylvania.

      . Kathy Jo was evidently led to believe that candy sent to her by her mother was sent to make her and her grandmother sick; that her mother’s leaving her father was the cause of his death; that the court order given to them in the Pizza Hut parking lot may have been physically harmful to them; that the grandparents and parents argued many times; that the grandfather had thrown her mother out of the house on at least two occasions; that her half-sister, April, had done something bad to her father; and that her mother left her and her father flat broke so that she could not pay the funeral bill.

      . As the lower court pointed out, it would help Kathy Jo’s adjustment a great deal if the mother and grandparents would try to get along and remember that they are all concerned with Kathy Jo’s welfare.


author: ROWLEY, Judge: WIEAND, Judge,

text:
    500 A.2d 98
    COMMONWEALTH of Pennsylvania v. Byron HARVIN, a/k/a Willie Harvin, a/k/a Tim Harvin, a/k/a Willie Brown, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 13, 1985.
    Filed Oct. 4, 1985.

      Mitchell A. Kaufman, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is a direct appeal from the judgment of sentence imposed on appellant following his conviction for retail theft. He contends that his offense was improperly graded as a third degree felony. We disagree and affirm.

On January 20, 1984, appellant was arrested and charged with retail theft. The criminal complaint filed by the Pittsburgh Police specifically charged, inter alia, that:

said actor having been convicted of retail theft twice before, 4/13/76 MAG. GIVENS 1YR. PROBATION, 2/10/83 MAG. LITTLE 30 DAYS, in violation of Section 3929(a)(1) & (b)(l)(iv) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 of Pa.C.S. § 3929 (a)(1) & (b)(l)(iv).

Section 3929 (b)(l)(iv) of the Crimes Code provides that:

Retail theft constitutes a [f]elony of the third degree when the offense is a third or subsequent offense, regardless of the value of the merchandise. (Emphasis added.)

A preliminary hearing was held on January 30, 1984, which resulted in appellant being bound over for trial. The docket transcript, as returned by the district justice, notes that appellant was charged with “Retail Theft” under Section “CC3929 (biv) [sic]”. In the space provided on the transcript form to show the grade of the offense charged the abbreviation “M2” is inserted. In the space designated for disposition of the charge, the district justice inserted the designation “HLD/CT”.

On February 23, 1984, the Commonwealth filed a criminal information charging appellant with “RETAIL THEFT Felony 3.” The information further stated, inter alia:

said actor having been convicted of retail theft twice before, in violation of Section 3929 (a)(1) & (b)(l)(iv) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 3929 (a)(1) & (b)(l)(iv).

The record reflects that appellant received a copy of the information.

On May 7, 1984, appellant filed a motion to quash the information alleging that “the evidence presented at the preliminary hearing did not substantiate the grading of the offenses as currently listed by the District Attorney” and that “[different facts have been adopted in the Criminal Information than were at the preliminary hearing.” The trial court, following argument, denied the motion. Judge Novak concluded that the “inconsistency” in the grading of the charge in the transcript was solely the result of a “clerical error.” He further held that there was no evidence to support appellant’s contention “that the issuing authority intended to reduce the charge from a felony three to a misdemeanor two.”

On July 6,1984, appellant was found guilty of retail theft following a non-jury trial. Appellant filed a motion in arrest of judgment which was denied. On September 19, 1984, the trial court sentenced appellant to two to four years imprisonment, plus a 6.25 cent fine, and payment of the costs of prosecution.

On appeal appellant presents one issue for review:

Was it improper for the court below to fail to quash a criminal information charging Mr. Harvin with retail theft as a third degree felony when the grading of the offense was reduced to a second degree misdemeanor at a preliminary hearing?

He does not challenge the sufficiency of the evidence at trial and sentencing to support his conviction for retail theft or its grading as a third degree felony.

Appellant has maintained in his motions and argued before our Court that the district justice intentionally, consciously, and properly reduced the grading of the offense to a second degree misdemeanor, and that therefore appellant was improperly charged with, tried for, and convicted of a third degree felony. Appellant has requested that we either reverse the trial court’s order denying his motion to quash the information or send the case back to the trial court for an evidentiary hearing to determine whether the district justice intentionally and with reason, graded the offense as “M2”. There is no merit to either argument.

Appellant’s first argument, that the district justice intentionally reduced the grade of the offense charged to a second degree misdemeanor and held him for court only on that degree of retail theft, is not supported by the record in this case. The complaint clearly charged appellant with a felony of the third degree on the basis of two prior convictions. On the docket transcript, in his designation of the statutory authority for the charge, the district justice inserted “§ 3929 (biv)” which is obviously a reference to § 3929(b)(l)(iv). That, as already indicated, is the subsection of the Crimes Code which grades retail theft as a felony of the third degree when it is the accused’s third or subsequent conviction.

Appellant’s argument in this regard is based solely on the designation “M2” entered by the district justice as the grade of the offense charged in block 28 of the docket transcript. That block, however, refers to the charge or charges as filed and contained in the complaint. See Pa.R. Crim.P. 26(b)(4). The designation “M2” is not a part of block 31 which is where the district justice indicates the disposition of each charge. Obviously, the district justice’s grading of the offense in block 28 is contrary both to the complaint as filed and his own designation of the subsection of the Crimes Code under which the charge is authorized. As the trial judge concluded, there is nothing in either the complaint or the transcript to indicate that the issuing authority had any intention of reducing the charge contained in the complaint when he bound appellant over for trial. We agree with the trial court that it is clear upon close analysis of the docket transcript that the designation “M2” was strictly a clerical error in describing the grade of the crime charged in the complaint. As such, it does not refer to the magistrate’s disposition of the case following the preliminary hearing and does not support the argument that he deliberately reduced the grade of the offense. Compare Commonwealth v. Barnosky, 264 Pa.Super. 443, 400 A.2d 168 (1979) and Commonwealth v. Trivelli, 253 Pa.Super. 34, 384 A.2d 962 (1978).

The appellant argues in the alternative, however, that we should remand the case to the trial court for the purpose of holding an evidentiary hearing to determine whether the Commonwealth failed, at his preliminary hearing, to present sufficient evidence to prove his two prior convictions and whether, for that reason, the magistrate downgraded the charge from a felony of the third degree to a misdemeanor of the second degree. However, such an evidentiary hearing is unnecessary because, even if appellant’s contention is correct, it does not entitle him to relief, either by way of dismissal or a new trial.

Appellant has misconstrued the function and importance of the preliminary hearing. The principal function of a preliminary hearing is to protect an individual’s right against an unlawful arrest and detention. Commonwealth v. Mullen, 460 Pa. 386, 333 A.2d 755 (1975). Appellant has not at any time alleged that he was unlawfully arrested or detained. The preliminary hearing is not a trial. Its purpose is to determine whether a sufficient case has been made out to hold the accused for prosecution. Commonwealth v. Smith, 232 Pa.Super. 546, 334 A.2d 741 (1975). The Commonwealth has the burden, at a preliminary hearing, to establish a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983), Commonwealth v. Lynch, 270 Pa.Super. 554, 411 A.2d 1224 (1979). It is not necessary, of course, that the Commonwealth prove, at the preliminary hearing, the accused’s guilt beyond a reasonable doubt. Commonwealth v. Lodise, 276 Pa.Super. 484, 419 A.2d 561 (1980). In order to meet its burden at the preliminary hearing, the Commonwealth is required to present evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense. Commonwealth v. Wojdak, supra.

The district justice is not required, nor is he authorized, to determine the accused’s guilt or innocence of the charge at a preliminary hearing. He is only to determine whether probable cause exists to require the accused to stand trial on the charge or charges contained in the complaint. Once he has made that determination, he has only to hold the accused for trial on the charge in the complaint or dismiss the charge. In this case, there is no claim that the evidence produced before the district justice did not establish probable cause to hold the accused for trial on the charge of retail theft. Once that determination was made by the district justice, it was not necessary for him to decide whether the accused might be guilty of a felony in the third degree or a misdemeanor of the second degree. As the docket transcript in this case shows, he found sufficient probable cause to bind the appellant over for trial on the crime of retail theft as charged and he so indicated.

The prior offenses utilized in grading the crime of retail theft do not constitute a substantive element of the crime. It is not necessary, therefore, that they be established, either at trial or at the preliminary hearing. Such evidence shall be introduced for sentencing purposes only. Commonwealth v. Coleman, 289 Pa.Super. 221, 433 A.2d 36 (1981). If the complaint and information contain allegations of two or more prior convictions for retail theft, the defendant is put on notice that, if convicted, he may be sentenced for a felony of the third degree. Commonwealth v. McNeill, 293 Pa.Super. 319, 439 A.2d 131 (1981); Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979). In fact, at the trial on the charge of retail theft, the Commonwealth is prohibited from presenting evidence of prior convictions referred to in the information for the purpose of grading the offense. Commonwealth v. Coleman, supra. It would be anomalous, to say the least, to prohibit the Commonwealth from producing evidence at trial of the prior convictions and yet hold that at an accused’s preliminary hearing the prior convictions must be proven in order to establish the appropriate grading of the offense for which the accused could be tried. Such is not the law. It is only necessary that the accused be put on notice that the Commonwealth ultimately, in the event of his conviction, will seek to have him sentenced for a third degree felony.

At the core of the rules concerning what is required in the complaint, docket transcript, and information, is the requirement of notice. Appellant, in this case, was not deprived of notice that he could be sentenced for a third degree felony because his offense was graded as such on both the complaint and the criminal information. Commonwealth v. Wilkinson, 278 Pa.Super. 490, 420 A.2d 647 (1980).

The four cases cited and relied upon by appellant do not support his arguments. In Commonwealth v. Wilkinson, 278 Pa.Super. 490, 420 A.2d 647 (1980), the issue concerned the sufficiency of the evidence at the preliminary hearing to establish a prima facie case on the charge of homicide by vehicle. The trial court held that the evidence was insufficient but this Court concluded that the evidence at the preliminary hearing was sufficient to establish a prima facie case and reversed. Both Commonwealth v. Gray, 329 Pa.Super. 347, 478 A.2d 822 (1984) and Commonwealth v. Neal, 274 Pa.Super. 225, 418 A.2d 378 (1980), involved amendments, during trial, which changed the elements of the particular charge contained in the information. Obviously that is not the case here. None of those three cases were concerned with retail theft or its grading as a second or third offense.

In Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979), the Commonwealth filed an information charging the accused with retail theft. Prior to trial, the Commonwealth was granted leave to amend the information by adding notice that the offense charged was the accused’s “second offense”. On appeal from the sentence imposed, this Court reversed and the appellant was discharged. That case, of course, is distinguishable in that it involved the amendment of an information after it was filed. In the case before us, there was no amendment or change of the information or complaint as initially filed. On the contrary, the information, as filed, clearly charged that, if convicted, this would be appellant’s third offense and put him on notice that, if convicted, he may be sentenced for a felony of the third degree. In Herstine, the Court concluded that it was necessary to aver in the information, as initially filed, the accused’s prior conviction. That was done in this case. Herstine does not deal with the question involved herein; that is, whether the Commonwealth must present evidence, at the preliminary hearing, of appellant’s prior convictions in order to warrant holding him for court on the charge of retail theft. We hold that it is unnecessary to present such evidence at the preliminary hearing and the holding in Herstine is not contrary thereto.

For the above-stated reasons, the judgment of sentence is affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I agree with the majority that the trial court did not err when it denied appellant’s motion to quash the information. I also agree that appellant had notice of the offense for which he was to be tried, for the information charged specifically that his retail theft was a third or subsequent offense. A remand to determine the sufficiency of the Commonwealth’s evidence at the preliminary hearing to show a felony of the third degree is unnecessary. The appellant, on appeal, has not challenged the sufficiency of the evidence at trial and at the sentencing hearing to support a judgment of sentence for retail theft, a felony of the third degree. Because the evidence produced in the trial court was sufficient to establish appellant’s guilt beyond a reasonable doubt, the sufficiency of the evidence to establish a prima facie case at the preliminary hearing is now moot. See: Commonwealth v. Hess, 489 Pa. 580, 590, 414 A.2d 1043, 1048 (1980) (Roberts, J., concurring); Commonwealth v. Thomas, 345 Pa.Super. 211, 215, 497 A.2d 1379, 1381 (1985). See also: Commonwealth v. Krall, 452 Pa. 215, 219, 304 A.2d 488, 490 (1973). Therefore, I agree that the judgment of sentence should be affirmed.


author: McEWEN, Judge: SPAETH, President Judge,

text:
    500 A.2d 102
    COMMONWEALTH of Pennsylvania v. Paul T. LYONS, a/k/a Paul T. Lyons, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1984.
    Filed Oct. 4, 1985.

      Robert B. Manchester, Bellefonte, for appellant.
    Robert A. Mix, District Attorney, Bellefonte, for Commonwealth, appellee.

      Before SPAETH, President Judge, and CAVANAUGH, WIEAND, MeEWEN, CIRILLO, DEL SOLE, JOHNSON, POPOVICH and CERCONE, JJ.
   McEWEN, Judge:

The PCHA court, following a determination that appellant had been improperly denied a direct appeal from the judgment of sentence imposed subsequent to his conviction upon three counts of assault by a prisoner and aggravated assault and battery, granted appellant the right to bring this appeal nunc pro tunc. See Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1188 (1982).

Appellant asserts that trial counsel was ineffective as a result of his failure to have a court reporter record the voir dire examination since without such a transcript he is unable to demonstrate in a direct appeal that one member of the jury which found him guilty was biased. Appellant contends that the absence of a transcript or an equivalent picture of the voir dire proceedings, wherein “[o]ne of the jurors said that he was associated or was a friend of somebody from Rockview”, requires that he receive a new trial. We find the allegation of ineffectiveness to be without merit and, thus, affirm the judgment of sentence.

Appellant was an inmate at the State Correctional Institution at Rockview on February 22, 1973, when he attacked three guards with a knife. Appellant told one of the victims “I will kill you, you ‘son-of-a-bitch’ ” as he stabbed him in the head, the arm and in the abdomen, the last wound requiring the placement of sutures. Another of the guards was cut twice on the arm. All three guards who had been attacked by appellant provided totally consistent testimony upon the entire occurrence. Appellant testified at trial that he had no recollection of any part of the occurrence by reason of the fact that approximately two hours before the incident:

I felt peculiar to the extent that I had become, you know, real paranoid. My vision was starting, you know, to get blurred, like, you know, I started hearing things, like things were being magnified and I found myself starting to do things, like, you know, doing a whole lot of things all at one time, you know.
I thought I seen, you know, like, some imaginary, you know, like a ghost. It looked like a blob, or something, coming at me.

The jury found appellant guilty of assault by a prisoner, assault with intent to kill and aggravated assault and battery. Trial counsel timely filed a motion in arrest of judgment challenging the sufficiency of the evidence with regard to all charges. The trial judge arrested judgment upon the offense of assault with intent to kill and imposed a sentence of not less than four years and not more than eight years upon the convictions for assault by a prisoner and aggravated assault and battery. Immediately after sentencing, appellant directed a letter to trial counsel in which he requested counsel to file an appeal on his behalf. Counsel promptly replied by letter that he was unaware of any grounds for appeal and requested appellant to indicate the grounds upon which he desired to appeal. No direct appeal was ever undertaken.

Appellant then filed a pro se PCHA petition on June 19, 1975, in which he raised more than twenty-four allegations of trial error and instances of ineffectiveness on the part of trial counsel. Through no fault of appellant, no action was taken on his pro se PCHA petition for almost five years. Counsel was finally appointed and caused an amended PCHA petition to be filed on January 14, 1981. The amended petition alleged, inter alia, that trial counsel had been (a) ineffective as a result of his failure to undertake a direct appeal from the judgment of sentence, (b) ineffective as a result of his failure “to challenge an individual juror of petitioner’s jury that was prejudiced toward petitioner”, and (c) ineffective by reason of his failure to request that the jury selection proceedings be recorded. The PCHA court correctly concluded, following an evidentiary hearing, that appellant had been denied his right to a direct appeal and entered an order permitting appellant to file this appeal nunc pro tunc. See Commonwealth v. Miranda, supra.

As heretofore observed, appellant argues that he is entitled to a new trial as a result of the absence of a transcript of the voir dire examination. Since appellant did not request that the voir dire proceedings be transcribed, and since appellant failed to raise in his post-verdict motions any allegations of error concerning the selection of the jury, we would ordinarily consider these claims waived. See Commonwealth v. Yohn, 271 Pa.Super. 537, 540, 414 A.2d 383, 385 (1979). However, as a result of appellant’s allegations concerning the quality of counsel’s representation, we will, nonetheless, consider these assertions within the narrowed context of appellant’s claim that counsel was ineffective by reason of his failure to provide for the voir dire examination to be stenographically recorded so as to enable meaningful appellate review of the claim that a juror was biased.

“In reviewing a claim of ineffectiveness of counsel, with regard to the performance component, a two pronged test has been employed. First our courts have determined whether the claim that counsel failed to assert was of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); see also Commonwealth v. Parker, 503 Pa. 336, 469 A.2d 582 (1983); Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (1983); Commonwealth v. Tabron, 502 Pa. 154, 465 A.2d 637 (1983); Commonwealth v. Golson, 310 Pa.Super. 532, 456 A.2d 1063 (1983). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Hubbard, supra; see also Commonwealth v. Schreiber, 319 Pa.Super. 237, 466 A.2d 203 (1983).” Commonwealth v. Garvin, 335 Pa.Super. 560, 564, 485 A.2d 36, 38 (1984).

Our study of the record for this purpose reveals that the Commonwealth and appellant stipulated at the PCHA hearing that “the questioning and testimony on voir dire, opening and closing statements of counsel at trial, arguments of counsel at post-trial motions are not available for the reason that they were by custom of the [Centre County] Court not recorded and, therefore, cannot be reproduced at this time.”

It seems well established that where the entire transcript of a trial is unavailable, meaningful appellate review is not possible, and a new trial must be awarded. See Commonwealth v. De Simone, 447 Pa. 380, 290 A.2d 93 (1972); Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971); Commonwealth v. Homsher, 264 Pa.Super. 271, 399 A.2d 772 (1979); Commonwealth v. Dixon, 253 Pa.Super. 383, 385 A.2d 391 (1978). See also Commonwealth v. Shields, 477 Pa. 105, 383 A.2d 844 (1978) (New trial awarded due to impossibility of appellate review where Commonwealth did not contradict appellant’s argument that the prosecutor’s summation had contained reversible error to which timely objections had been made). In every instance in which a new trial was awarded, however, meaningful appellate review had been rendered impossible due to the absence of a transcript or an equivalent picture of the proceedings at trial. “In order to assure that a defendant’s right to appeal will not be an empty, illusory right, we require that he or she be furnished a full transcript or other equivalent picture of the trial proceedings. Meaningful appellate review is otherwise an impossibility, and fairness dictates that a new trial be granted.” Commonwealth v. Shields, supra, 477 Pa. at 108-09, 383 A.2d at 846.

It is well settled that the requisite “ 'record of sufficient completeness’ does not translate automatically into a complete verbatim transcript____ Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise.’ ” Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 414, 30 L.Ed.2d 372 (1971) quoting Draper v. Washington, 372 U.S. 487, 495, 83 S.Ct. 774, 778, 9 L.Ed.2d 899 (1963). The Commonwealth has the burden, of course, of providing an “equivalent picture” in lieu of a transcript but may, in attempting to reconstruct the proceedings, “utilize whatever witnesses may be available, including trial counsel.” Commonwealth v. Goldsmith, 452 Pa. 22, 28-29, 304 A.2d 478, 482 (1973).

Appellant argues that he has been denied his right to an effective appeal due to counsel’s failure to secure a transcript which would disclose that a juror indicated during the voir dire examination that she was a friend of a prison employee. We believe, however, that the equivalent picture of the voir dire examination provided by the Commonwealth is sufficient to permit meaningful appellate review of the specific error alleged by appellant, namely, that solely by virtue of an association or friendship on the part of a juror with a prison employee, appellant was denied his right to a fair and impartial jury.

Crucial to our analysis and decision is the PCHA testimony of trial counsel for appellant that his notes from the voir dire reflected that a member of the jury had indicated during the voir dire examination that she was a “close friend of police”. Those notes further disclosed that several other veniremen had been successfully challenged for cause and that all peremptory challenges had been exhausted during the selection process, with each of the peremptory challenges exercised only after consultation with appellant. Counsel in his PCHA testimony described his actions during the voir dire as follows: “whenever we conducted the challenge for cause, it was a standard question in the Public Defender’s Office when we represented an inmate at Rockview to ask on voir dire whether or not any prospective jurors were in fact employed or related or good friends of employees at Rockview because it was a real problem as I assume it is today. Rockview has a large employment. So that was usually the standard challenge for cause and the Court then would ask the questions of objectivity____ That question has always been asked on challenge and then it was subject to the judge’s decision as to whether or not he thought they’d be biased.”

Thus, it is clear that when a juror was challenged, the trial judge conducted an inquiry as to the validity of the challenge and then either excused the juror for cause or determined the juror could rise above any bias. That procedure is consistent with the test that our Supreme Court has often prescribed: “[t]he question relevant to a determination of qualification is whether any biases or prejudices can be put aside upon the proper instruction of the court.” Commonwealth v. Drew, 500 Pa. 585, 589, 459 A.2d 318, 320 (1983). “ ‘A prospective juror should be excused for cause in two situations: “the first is where the prospective juror indicates by his answers that he will not be an impartial juror____ The second is where, irrespective of the answers given on voir dire, the court should presume the likelihood of prejudice on the part of a prospective juror because the potential juror has such a close relationship, be it familial, financial, or situational, with any of the parties, counsel, victims or witnesses.” ’ Commonwealth v. Stamm, 286 Pa.Super. 409, 415-416, 429 A.2d 4, 7 (1981) quoting Commonwealth v. Colon, 223 Pa.Super. 202, 299 A.2d 326 (1972). Commonwealth v. Johnson, 299 Pa.Super. 172, 176-177, 445 A.2d 509, 511 (1982).” Commonwealth v. Fields, 317 Pa.Super. 387, 398-99, 464 A.2d 375, 381 (1983).

Appellant contends that the association or friendship of the juror at issue is the type of relationship which requires that we presume the likelihood of prejudice on her part irrespective of the decision of the trial judge that her answers during his voir dire inquiry reflected that she would be objective. We disagree. In the absence of any indication of bias or prejudice on the part of the juror, the trial court properly exercised its discretion in refusing to excuse the juror for cause. As a result, we reject the assertion that appellant was denied a trial by an impartial jury. See United States v. Collins, 395 F.Supp. 629, 635 (M.D.Pa.1975) (No merit to appellant/prisoner’s contention that the trial court improperly refused to strike for cause four jurors; one of whom knew two potential government witnesses, two of whom had a personal friend employed at Lewisburg Penitentiary and one whose son-in-law was a guard at the penitentiary); Commonwealth v. Patterson, 488 Pa. 227, 412 A.2d 481 (1980) (No abuse of discretion by trial court in refusing to excuse for cause juror who attended same church as prosecuting police officer); Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971) (Trial court did not abuse its discretion in refusing to strike for cause juror who was casual acquaintance of murder victim’s mother); Commonwealth v. Fields, supra, 317 Pa.Super. at 398-99, 446 A.2d at 381. (Trial court did not err in refusing to strike one juror whose son-in-law was an assistant district attorney in another county nor err in refusing to strike two jurors, one of whom had been the victim of burglary and the other whose brother had been robbed); Commonwealth v. Stamm, supra (No abuse of discretion in refusing to strike juror who was aunt of a member of district attorney’s staff and also related to police prosecutor in case); Commonwealth v. Warner, 209 Pa.Super. 215, 220-21, 225 A.2d 98, 101 (1966) cert, denied 389 U.S. 986, 88 S.Ct. 477, 19 L.Ed.2d 479 (1967). (Trial court did not abuse its discretion in refusing to strike for cause juror who was wife of the President Judge’s court stenographer or juror who was wife of former district attorney of county who had been out of office for six years at time of trial).

In summary, therefore, we not only reject appellant’s contention that meaningful appellate review was precluded by the absence of a record of the voir dire examination but also reject appellant’s underlying assertion that he was denied his right to a fair and impartial jury solely by reason of a friendship between a juror and a prison employee. The issues underlying the charge of ineffectiveness being devoid of merit, counsel cannot be found ineffective. Judgment of sentence affirmed.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge,

dissenting:

I should hold that the unavailability of a transcript or equivalent picture of the voir dire during which the jury was selected has effectively deprived appellant of his right to appeal, and that the judgment should therefore be vacated and the case remanded for a new trial.

The States are not required to provide appellate review of criminal convictions, McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894), but if they do provide appellate review, the appeal must be more than a “meaningless ritual”. Evitts v. Lucey, — U.S. —, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); see also Griffin v. Illinois, 351 U.S. 12 at 20, 76 S.Ct. 585 at 591, 100 L.Ed. 891 (1956). To ensure that the appeal is not meaningless, the appellant must be provided with a transcript, or its equivalent, of the events at trial that the appellant wishes to challenge by the appeal. Draper v. Washington, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963). Once the appellant has shown “a colorable need for a complete transcript, the burden is on the state to show that only a portion of the transcript or an alternative will suffice for an effective appeal____” Mayer v. Chicago, 404 U.S. 189, 195, 92 S.Ct. 410, 415, 30 L.Ed.2d 372 (1971). These principles apply equally, whether appellant is indigent or is not. Evitts v. Lucey, supra, at —, 105 S.Ct. at 834. To decide the appeal without a transcript would not only violate the Equal Protection Clause, if the appellant is too poor to afford a transcript, but also the Due Process Clause, for without a transcript the decision would be arbitrary. Id. at —, 105 S.Ct. at 839.

Our Supreme Court has long recognized these principles. “If a meaningful appellate review is impossible, for whatever reason, and the appellant is not at fault, he is entitled to a new trial.” Commonwealth v. Shields, 477 Pa. 105, 109, 383 A.2d 844, 846 (1978), quoting Commonwealth v. Goldsmith, 452 Pa. 22, 25, 304 A.2d 478, 480 (1973). “In order to assure that a defendant’s right to appeal will not be an illusory right, we require that he or she be furnished a full transcript or other equivalent picture of the trial proceedings. Meaningful appellate review is otherwise an impossibility, and fairness dictates that a new trial be granted.” Id., 477 Pa. at 108, 383 A.2d at 846. See also Commonwealth v. DeSimone, 447 Pa. 380, 290 A.2d 93 (1972); Commonwealth v. Norman, 447 Pa. 515, 291 A.2d 112 (1972); Commonwealth v. Anderson, 441 Pa. 483, 272 A.2d 877 (1971).

In Commonwealth v. Shields, supra, the appellant argued that a meaningful appellate review was not possible because of the unavailability of a transcript of the prosecutor’s closing argument, which the appellant alleged had been improper. The Commonwealth argued that the appellant was not entitled to a new trial because he had not specifically quoted or described the remarks he found prejudicial. The Supreme Court rejected this argument, stating that “[i]f appellant could specifically quote or describe the alleged prejudicial portions of the closing argument, ... there would be no need for the missing portion of the transcript to ensure meaningful appellate review.” Id. 477 Pa. at 109, 383 A.2d at 846.

Here, as in Shields, appellant could describe the alleged error in general terms — that his trial counsel or the trial court did not strike a juror, either for cause or peremptorily, who was prejudiced toward him — but he could not recall the details; the most he could say was that “[o]ne of the jurors said that he was associated or was a friend of somebody from Rockview.” N.T. 11. Pressed for details, he said that he “was in opposition to that person on that jury” but “couldn’t actually say what happened” with respect to the juror being challenged because his recollection was “rather cloudy”. N.T. 13. (More than five years had elapsed between the filing of his PCHA petition and the hearing on that petition.)

The recollection of trial counsel, who was called by the Commonwealth at the PCHA hearing, was equally cloudy. He testified that he had no independent recollection of the events that took place during the voir dire of appellant’s jury. N.T. 36. His notes, he said, did not indicate that any of the prospective jurors was associated with or a friend of an employee at the prison. Id. He also testified that his standard practice when representing an inmate at Rockview was to ask whether “any prospective jurors were in fact employed or related or good friends of employees at Rock-view ... and the Court then would ask the questions of objectivity.” Id. at 36-37. However, he had no independent recollection or notes either that he asked that question in this case or, if he did, of what response he received. Trial counsel’s notes did reflect that one juror was “a close friend of police,” id. at 37, but he could not recall whether he challenged that juror, either for cause or peremptorily, id. at 38. The best trial counsel could do was “assume that we had more people that we wanted to strike peremptorily than we had peremptory challenges”, id. (emphasis supplied), and “assume that of the six we peremptorily struck that this was a weighed decision that [appellant] was involved in,” id. at 39 (emphasis supplied). Trial counsel testified: “It may have been a question of striking another person as number six versus striking this person. That’s the only thing I can assume at this time.” Id. at 39-40 (emphasis supplied).

Apparently the majority concedes that appellant has shown a colorable need for a full transcript of the voir dire, and I agree. Where I part company with the majority is that I do not agree with the majority that trial counsel’s cryptic notes, unsupported by any independent recollection, are sufficient to meet the Commonwealth’s burden of providing a “picture of the trial proceedings” that is “equivalent” to a “full transcript.” Commonwealth v. Shields, supra. The majority states that “it is clear that when a juror was challenged, the trial judge conducted an inquiry as to the validity of the challenge and then either excused the juror for cause or determined that the juror could rise above any bias”. At 592. The majority further refers to “the decision of the trial judge that [the juror’s] answers during [trial counsel’s] voir dire reflected that she would be objective.” Id. at 593. I find nothing in the record, and the majority cites nothing, that shows what sort of inquiry the trial judge conducted, or what questions the juror was asked, or how she answered them, or why the juror was excused — by the trial judge for cause or because counsel exercised a peremptory challenge. Far from being “clear”, these matters are all unknown; we can only speculate about what really happened.

Counsel testified that: “one juror who was seated as juror number eleven [] I have indicated [by notes made at the time] as a close friend of police”, N.T. 37; “[t]hat [juror] was not struck as a peremptory,” id.; “several people ... were ... challenged for cause and they were struck____”, id. at 38; and finally, “[w]e took all our [peremptory] challenges,” id. at 39.

The first question raised by this testimony is whether counsel made any challenge to the juror who was “a close friend of police.” Counsel did not recall having done so, and he had no notes that he had done so; nor did he say that as a matter of standard practice he would have done so, for in describing his standard practice he said only that it was “to ask on voir dire whether or not any prospective jurors were in fact employed or related or good friends of employees at Rockview”, and to challenge any such jurors for cause, N.T. 36-37, not that it was standard to challenge a prospective juror who was “a close friend of police.” If one assumes, however, as the majority assumes, and as I am willing to assume, that in fact counsel did challenge the juror who was “a close friend of police”, still, the question remains, what happened to the challenge? Counsel said it was not a peremptory challenge. It must, therefore, have been for cause, and from that it follows that it must have been denied, and that raises the questions: Why was it denied? What did the juror say that showed that despite being “a close friend of police”, she could and would be impartial? In short, did the trial judge abuse his discretion in denying the challenge (assuming there was a challenge)?

Nothing in the record answers these questions. By answering them anyway, the majority has indeed rendered this appeal a “meaningless ritual.” For if the trial court should have sustained the challenge for cause, appellant is entitled to a new trial. See Commonwealth v. Johnson, 299 Pa.Super. 171, 445 A.2d 509 (1982) (even though trial counsel struck juror peremptorily, abuse of discretion in denying challenge for cause requires new trial where peremptory strikes exhausted before jury empaneled).

In another case we might remand for development of a picture of what occurred, equivalent. to a transcript, but that is not an available alternative here. As the judge who specially presided at the hearing on appellant’s PCHA petition properly observed:

There has been an inordinate delay on the part of the Court to replace the trial attorney with another attorney to represent Petitioner in the P.C.H.A., in spite of the fact that the original P.C.H.A. alleged incompetence of counsel. By the time that the Court appointed the present counsel to represent Petitioner, a period of more than five years elapsed which has caused Petitioner to suffer injustice by the operation of the Court.
Slip op. of PCHA ct. at 3.

The PCHA court accordingly granted appellant the right to file this appeal nunc pro tunc. That relief, however, is inadequate, for given the absence of a transcript or its equivalent, the appeal is meaningless.

The judgment of sentence should be vacated and the case remanded for new trial.

      . Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq., repealed, Act of April 28, 1978, P.L. 202, No. 53, § 2(a) [1397], as amended, Act of June 26, 1980, P.L. 265, No. 77, § 2, which delayed repeal until June 27, 1981, as further amended by the Act of June 26, 1981, P.L. 123, No. 41, § 1 which delayed repeal until June 26, 1982, repealed, Act of May 13, 1982, P.L. 417, No. 122, § 2, which replaced the prior Act by adding 42 Pa.C.S.A. § 9541 et seq., as suspended by Pa.R.Crim.P., Rule 1507, 42 Pa.C.S., insofar as it is inconsistent with the Rules.

      . The petition, however, made no reference to the claim of juror prejudice subsequently raised in the amended PCHA petition filed six years thereafter.

      . See Pa.R.Crim.P. 1106(c).

      . Commonwealth v. Smith, 285 Pa.Super. 460, 427 A.2d 1378 (1981), does not compel a contrary conclusion. The appellant in Smith had alleged, in post-verdict motions and on appeal, that he was entitled to a new trial as: “[j]ury selection was unfair, the defendant was not allowed to ask jurors proper questions and certain challenges for cause should have been granted.” A record of the voir dire had been made, but the trial court had refused a request that the notes be transcribed. This Court remanded for transcription of the notes and disposition nunc pro tunc of the allegations of error, citing "the responsibility of the state to see that the transcript is made available to appellant so that he may effectively pursue his appeal rights”. Id., 285 Pa.Superior Ct. at 462, 427 A.2d at 1379 quoting Commonwealth v. Morgan, 469 Pa. 35, 37, 364 A.2d 891, 892 (1976) (emphasis supplied). Due to the availability of the transcript of the voir dire examination, there was no need to provide an equivalent picture of the proceedings through other means.

      . Due to our conclusion that counsel provided effective representation, it is unnecessary to determine whether appellant suffered any prejudice as a result of counsel’s conduct, that is, that ‘"but for counsel’s unprofessional errors, the result of the proceeding would have been different____’” Commonwealth v. Mills, 332 Pa.Super. 75, 85, 480 A.2d 1192, 1197 (1984) quoting Strickland v. Washington, 466 U.S. 668, 688-689, 104 S.Ct. 2052,2064, 80 L.Ed.2d 674, 692 (1984). See also Commonwealth v. Garvin, supra.

      . All references to the notes of testimony are to the January 15, 1981, P.C.H.A. Hearing.