author: OLSZEWSKI, Judge:

text:
    549 A.2d 1280
    COMMONWEALTH of Pennsylvania v. Dennis (Africa) SIMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 29, 1988.
    Filed Oct. 19, 1988.

      Brian R. Williams, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, KELLY and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order denying relief under the Post Conviction Hearing Act (“PCHA”). Appellant asserts that (1) the trial court lacked jurisdiction because the court never ascertained that appellant was not a minor at the time of trial and, (2) that stand-by counsel rendered ineffective assistance of counsel. Finding no merit to appellant’s contentions, we affirm.

As a result of his participation in a confrontation between police and MOVE members in Philadelphia on May 20, 1977, appellant was convicted by jury of riot, criminal conspiracy, terroristic threats, and possession of a prohibited weapon. Following the denial of post-trial motions, the trial court sentenced appellant to concurrent sentences of twenty-six months to seven years for the criminal conspiracy and riot charges and one to five years for the weapon and terroristic threats charges, to run concurrent with the previous sentences.

This Court affirmed the judgement of sentence in an unpublished memorandum. Commonwealth v. Africa, 339 Pa.Super. 612, 488 A.2d 1161 (1984). On June 6, 1985, the Pennsylvania Supreme Court denied appellant’s petition for allowance of appeal.

Appellant filed a pro se PCHA petition on May 7, 1987. Appointed counsel, on December 1, 1987, submitted a “no merit” letter to the PCHA court. After undertaking independent review of the record, the PCHA court dismissed appellant’s petition. This appeal followed.

Appellant contends that the trial court did not determine appellant’s age and, therefore, did not have jurisdiction over the case. During the colloquy regarding appellant’s ability to proceed pro se, the following exchange transpired:

The Court: Mr. Dennis Africa, will you stand up, please?
How old are you?
[Appellant]: The age of life.
The Court: That doesn’t mean anything to me. Are you past 21 years of age, or don’t you know?
[Appellant]: I don’t know.
The Court: You look to me to be an adult over 21 years of age.
[Appellant]: Okay.

Transcript at 2.4-2.5.

We have decided that non-age is not a matter of jurisdiction. Commonwealth v. Harris, 223 Pa.Super. 11, 297 A.2d 154 (1972). Our opinion in Harris is instructive in resolving the instant complaint:

It is the duty of a judge to transfer a criminal proceeding to the juvenile court if “it shall be ascertained that the person charged with the offense was under the age of sixteen years at the time the alleged offense was committed----” The appellant at the time of the offense was less than 16 but he told the court he was 19. He asks for post-conviction relief on the ground that the criminal court had no jurisdiction.
If the statute made non-age a jurisdictional matter, the conviction might well be improper notwithstanding appellant’s false testimony. However, the statute here does not deprive the court of jurisdiction but imposes a duty to transfer only if non-age was ascertained during the pendency of the criminal charge.

Id., 223 Pa.Superior Ct. at 11-12, 297 A.2d 154 (footnotes omitted) (emphasis in original).

Non-age, then, does not deprive a court of jurisdiction over a juvenile. Rather, 42 Pa.C.S.A. § 6321(a), contained in the Juvenile Act which governs juvenile matters, imposes a duty upon the trial court to transfer the case to juvenile court “if it appears to the court ... that the defendant is a child.” Instantly, the court determined that appellant appeared to be over 21 years of age. Moreover, appellant refused to divulge his age to the court. In addition, the Juvenile Act provided appellant the opportunity to request that his case be transferred to juvenile court and appellant failed to avail himself of this opportunity prior to prosecution. Id. at § 6355. Therefore, he cannot now offer proof of his age nor complain that the court acted improperly by not transferring the matter to juvenile court. See Harris.

Appellant further attempts to blame stand-by counsel for not objecting to the trial court’s failure to transfer. The record reflects, however, that appellant chose to proceed pro se:

The Court: ... [W]e have a request by these three defendants to represent themselves, so I think we will have to conduct the colloquy as to whether or not that selection was voluntary and intelligently made.
* * * * * *
The Court: Do you know how to read or write?
[Appellant]: A little bit.
The Court: How far did you go in school?
[Appellant]: Seven.
The Court: Have you ever represented yourself in a criminal case before?
[Appellant]: Yeah.
[Commonwealth]: ... I think the defendant ought to be aware of the fact that if he waives the assistance of counsel that he will not be permitted to at some time in the future raise the issue of ineffective assistance; that he is prohibited by our law from raising his own ineffective assistance and therefore he will waive that appellate right.
The Court: You heard what Mr. Richman said. Do you want an explanation?
[Appellant]: No, I don’t want none.
The Court: Do you understand it?
[Appellant]: Yeah.
The Court: If the Court permits you to conduct your own defense and you are not successful, then you have to suffer the consequences; you can’t blame it on anybody else. All right? Now, if you think this is a laughing matter the Court will very quickly come to the conclusion that you are not competent to represent yourself.
* * 5»! * * Hi
The Court: ... I am granting you conditionally your request to represent yourselves____ If the court finds at anytime you are disrupting the trial and do not comply with the Court’s orders to desist, to behave yourselves properly as a lawfully permitted member of the Court would do, then you will cease to represent yourselves and your backup counsel will take over in your place.

Transcript at 2.5-2.9; 2.20.

Our decision in Commonwealth v. Glessner, 337 Pa.Super. 140, 486 A.2d 521 (1985), governs appellant’s attempt to invoke the ineffectiveness of stand-by counsel:

... Glessner also contends that stand-by counsel was ineffective during the post-trial, evidentiary hearing because he failed to advise appellant fully. This argument is frivolous. Glessner voluntarily chose to represent himself despite the court’s clear admonition regarding the pitfalls of such a procedure. The argument on appeal that a defendant received ineffective assistance of counsel “is not available to one who insists on self-representation.” Commonwealth v. Andrews, 282 Pa.Super. 115, 130, 422 A.2d 855, 862 (1980).

Id., 337 Pa.Superior Ct. at 146-48, 486 A.2d at 524-25.

We, therefore, refuse to address appellant’s assertion that stand-by counsel was ineffective. Appellant cannot shift the responsibility for his own performance to stand-by counsel, “who occupied only an advisory role.” Id., 337 Pa.Superior Ct. at 148, 486 A.2d at 525, citing Commonwealth v. Celijewski, 324 Pa.Super. 185, 190, 471 A.2d 525, 528 (1984).

The order of the PCHA court is affirmed.

      . We acknowledge that the Court in Harris quotes 11 P.S. § 256, which has been repealed. We note, however, that 42 Pa.C.S.A. § 6301 et seq., which governs juvenile matters, contains a similar provision as that quoted by the Harris court:
      [I]f it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this chapter shall immediately become applicable, and the court shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the division or judge of the court assigned to conduct juvenile hearings—
      42 Pa.C.S.A. § 6322(a). A child is defined as an individual who is under the age of 18 years. Id. at 6302(1).
      This difference does not affect the rule that we garner from Harris.


source: Caselaw Access Project

author: PER CURIAM: TAMILIA, Judge,

license: Public Domain

text:
    549 A.2d 1282
    Regina CURCIO v. Dennis CURCIO, Appellant.
    Superior Court of Pennsylvania.
    Argued May 10, 1988.
    Filed Oct. 24, 1988.
    Reargument Denied Dec. 16, 1988.
    Nicholas J. Lisi, Philadelphia, for appellee.
    Before MONTEMURO, TAMILIA and JOHNSON, JJ.
   PER CURIAM:

Order Affirmed.

TAMILIA, J., filed a dissenting opinion to be published.

TAMILIA, Judge,

dissenting:

I respectfully dissent to the holding of the majority as I believe the trial court has not adequately considered the salient issue of what is the best interest of the child in awarding shared custody to the parents. As quoted by the majority from the excerpt of the trial court Opinion:

Regina spends a considerable amount of time with her paternal grandparents, as she resides in their home. Defendant testified that his night-shift work prompted him to place his daughter at his parents’ home over the course of the past three years____ It is this court’s opinion that the true “custodians” of Regina have been neither of the parties, but the paternal grandparents. It has been the paternal grandparents who have fed Regina and seen to her daily care. Testimony from the defendant indicated that Regina even took her vacation with her grandparents.

(Slip Op., Jackson, J., 12/4/87, p. 2.)

The trial court went on to find that since the paternal grandparents were the de facto custodians, the amount of time spent with each parent was equal. From this latter determination, the trial court went on to conclude that the parents were, therefore, entitled to share equally in the custody as there previously had been an equal amount of time spent with the child by both of them. This reasoning ignores a number of other important considerations that are essential to a determination of the child’s best interest. Pursuant to our scope of review in custody matters, as detailed in Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984), I would find that the factual conclusions of the trial court are not supported by incontrovertible factual findings required for a modification of the de facto partial custody arrangements in this case and, in fact, the trial court’s conclusions in awarding shared custody are unreasonable in light of inadequate evidence to support them.

While the father’s contention there has been no showing of a substantial change of circumstances justifying a change in the status quo cannot be ignored, this consideration has been considerably reduced by the recent ruling in Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988). “[W]e hold that a petition for modification of a partial custody to a shared order requires the court to inquire into the best interest of the child regardless of whether a “substantial change in circumstances has been shown.” Id. at 607-608, 544 A.2d at 1332.

While the prerequisite of a change in circumstances is not required to permit a review of a petition for change in custody, particularly where, as here, the modification requested is from partial custody to shared custody, that review must consider the rules of law which hold that a child’s placement should not be disturbed unless it is in the child’s best interest. Eglekamp v. Eglekamp, 362 Pa.Super. 269, 524 A.2d 501 (1987). That principle is contained in the concept that has prevailed throughout modern times that a change of circumstances which is in the child’s best interest must be established before it results in a child’s placement being disturbed. The change of circumstance found by the court was that the husband planned to remarry within a few weeks and to move into his wife’s new home (Slip Op. at 3) and his intent to have Regina come live with him. In evaluating this change, the court found that both parents were fit and it was in Regina’s best interest that she spend more time with each parent. However, equally if not more relevant in the review of changed circumstances is a consideration of whether the mother’s mental condition has stabilized and the child’s interaction with her has improved to the point where the child’s best interest will permit shared custody. This case very clearly illustrates that in determining what is in the child’s best interest, it is necessary to review the case in totality to determine if circumstances have changed. If they have not changed, the father is correct in requesting denial of the petition for modification as the child’s best interest would not be served by awarding shared custody.

To evaluate the change of circumstances, it is necessary to consider the exhaustive and voluminous record which preceded the present hearing. My review of that record convinces me that initially the trial judge (different than the present one) made an erroneous determination that shared custody was required by law and which he attempted to implement. The transcript of October 21, 1982, p. 38, discloses that Judge Rosenwald stated: “The law requires shared custody.” This assumption permeated all subsequent proceedings. Despite that conclusion after many subsequent hearings, he alternated between temporary orders of no custody and partial custody, which ultimately resulted in de facto custody in the paternal grandparents and partial custody in each parent At the outset of one of the earliest hearings, Judge Rosenwald also stated: “This child is being destroyed by the hostility that each one of you has for the other. The hatred you have for him the hatred he has for you is really disturbing that child. What you are doing is creating a situation where that child is going to be on a psychiatrist’s couch for a long period of time.” (T.T. 7/26/82, pp. 2-3.) At that time, Judge Rosenwald had extensive voire dire with the child which disclosed the child was so disturbed about visitation with the father that psychiatric and psychological evaluations were ordered, with overnight visits curtailed, pending their outcome. In June 1983, the problem had abated and the father had Regina for a period of summer vacation. Two days into the vacation, the father was told to keep the child by his attorney as the mother appeared to be suffering from a mental illness. On June 13, 1983, testimony was received from a psychologist that the mother was disturbed and the child might be in jeopardy (T.T. at 5). Subsequently, the child was fearful of returning to the mother. On one occasion when he was returning the child, the mother met the father at the door with a knife and a rock and shouting obscenities and Regina refused to go into the house (T.T. 9/30/83, p. 34). There was also testimony about the mother putting librium into the child’s orange juice and that her behavior was bizarre, shouting obscenities, harassing the father and neighbors, accusing appellant of tapping her phones, and telling children and other people at a birthday party that she was the Virgin Mary. Dr. Bonovitz, her psychiatrist, testified she was manic depressive upon her admission to Mercy Hospital, and her self-discharge after two weeks was against medical advice as she was only 50 to 60 per cent improved.

Extensive testimony from psychological and psychiatric experts was taken on September 30, 1983, relating to the mother’s mental condition and in one instance concerning testing of the child. As to the child, Regina, Dr. Bricklin testified test results showed seven responses favoring remaining with the father and none for returning to the mother which was a very unusual finding (Id. at 243). Further, he testified test results showed that from interaction with the mother, Regina has become potentially suicidal (Id. at 246). He tested the father also, with favorable results for parenting but the mother refused to be tested (Id. at 247-48). Based on his testing, his opinion was that extended contact with the mother would be psychologically harmful, whereas contact with the father would not be (Id. at 251-52). Dr. Bricklin was a neutral psychologist, testifying for the court.

Following these hearings and others in 1984 and 1985, there was" a gradual return to the implementation of the original Order to the degree that while the father had technical sole custody, with the mother having partial custody, de facto custody was in the grandparents with partial custody in both parents.

Where I strongly differ with the majority is that I believe the trial court did not pursue the searching enquiry necessary to review, that the record demonstrates the modification of the custody Order is in the best interest of child. Where the Opinion of the court is not supported by the record and the record itself was inadequate for a determination of the ultimate issue of change in custody, a remand is required. Murphey v. Hatala, 350 Pa.Super. 433, 504 A.2d 917 (1986). I do not agree with appellant that the original custody Order, with the father having sole custody and the mother having partial custody, is the status quo. Judge Jackson correctly determined that the grandparents are the true custodians. I believe he erred in permitting both parents to share custody and dissolving the status quo without first determining that the mother can function under the greatly increased strain of a shared custody arrangement, hearing testimony from the prospective wife of the father, who will participate in the custody arrangement, and above all, ascertaining the wishes of the child about the proposed shared custody plan.

One thing is clear from a thorough review of this record and that is, after a terribly stormy and continuous period of disputed custody in which there was violence and mental disturbance swirling about the child, who was at one time described as potentially suicidal, there has been an accommodation in which she now has a relationship with both parents and professes love for both. While the trial judge interviewed Regina (T.T. 8/18/87, pp. 2-8, recorded and transcribed separately for the court), he did not question her about her wishes in going to live part-time with her father and stepmother and part-time with her mother. The testimony elected only that she got along “good” with her father, mother and paternal grandparents under present arrangements.

While the trial judge professes a philosophy which avoids forcing a child to voice a decision, in a case such as this, it is unavoidable. The transcript of his interrogation of Regina does not disclose how she would react to the proposed arrangement, and since no witnesses other than the parents were called to ascertain their interaction and adjustment and no inquiry was made of the child concerning these matters, we cannot determine from the record whether this change is in the child’s best interest. Regina has been through enormous emotional trials in the course of the nine years of hotly contested custody. She has been interviewed by judges, lawyers, psychologists, psychiatrists and badgered by her parents in the process. Out of it she appears to have survived as an intelligent and mature thirteen year old who most certainly can be asked what is the present relationship between her and her parents, her desires to leave the shelter of the grandparents home to what may be a ping-pong existence of shared custody, and how much time she would like to spend with the grandparents if shared custody is acceptable. While the grandparents have not petitioned the court for this purpose, I believe it is incumbent upon this Court to make this inquiry on his own under the circumstances of this case. To disturb an apparently stable adjustment after the years of turmoil, without such an inquiry, is not in Regina’s best interest. See Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Bresnock v. Bresnock, 346 Pa.Super. 563, 500 A.2d 91 (1985).

I would, therefore, remand for further testimony as to the mother’s present mental condition and treatment, testimony from the proposed stepmother, testimony from the grandparents as to their visitation rights and above all interrogation of Regina as suggested above.

      . Karis involved a petition for change in a custody agreement incorporated into a court Order. While the Supreme Court ruled in Karis that the inquiry into changed circumstances is not required, citing lack of such requirement in the Custody and Grandparents’ Visitation Act, 23 P.C.S. § 5301 et seq., query whether the legislative intent was to eliminate such a requirement in light of the more recent legislation amending the Divorce Code in February 1988, Act 13, Section 401.1, 23 P.S. § 401.1, which provides:
      Section 401.1 Effect of agreement between the parties (b) A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances. (Emphasis added.)
      If we apply Karis in its broadest sense, then we must ignore the amendment to the Divorce Code of February 12, 1988. It will also require future clarification as to whether the Karis holding is limited to cases in which the requested modification is from sole custody or partial custody to shared custody.

      . The Custody Act, 23 P.C.S. 5301 et seq. provides as follows:
      § 5303. Award of sole custody
      In making an order for custody to either parent individually, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child. The court shall award sole custody when it is in the best interest of the child. (Emphasis added.)
      § 5304. Award of shared custody
      An order for shared custody may be awarded by the court when it is in the best interest of the child:
      (1) upon the application of one or both parents;
      (2) when the parties have agreed to an award of shared custody; or
      (3) in the discretion of the court.

      . During the proceeding, the following dialogue transpired:
      (Child’s examination is recorded and transcribed separately for the Court.)
      MR. FIORETTI: Before you bring the parties in, you didn’t ask her what her preference was.
      THE COURT: I never do and I don’t because there are a lot of other factors in making a ruling. If I ask a child what would you like to do, who would you like to be with and they give me an answer and then I make a decision based upon a lot of other factors beside what they want to do, then if some of those factors have made me decide differently than what I’ve stated, then the child is very disappointed with humanity. I told him that I wanted to go with X or I told him that I wanted to go with Y. Why didn’t the Judge listen to me? Well, we don’t let parents be the sole guiding light as to what the child would do and I’m of the opinion that if we don’t let the parents dictate to us, we shouldn’t let the children make the overwhelming decision and that’s why I have to answer your question, Judge, you didn’t ask the child what she would like to do. For that simple reason. I don’t want the child coming back and saying well, I said X or I said Y and he did something different. With all due respect to you, Mr. Fioretti, that’s exactly why I did it.
      MR. FIORETTI: I understand that’s one of the factors in making a custody determination, preference of the child.
      THE COURT: Not when you might get an answer that’s going to be contradictory to what the total picture is.
      (T.T. 8/18/87, pp. 69-70.)

      . § 5313. When child has resided with grandparents
      If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable partial custody or visitation rights, or both, to the child. The court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship.


author: WIEAND, Judge:

text:
    549 A.2d 1286
    In re ADOPTION OF B.E.W.G. and S.L.W.G. Appeal of Howard L. WEST and Kay West.
    Superior Court of Pennsylvania.
    Argued June 14, 1988.
    Filed Oct. 24, 1988.

      Donald B. Hoyt, York, for appellants.
    Wanda Neuhaus, York, for appellees.
    Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

The issue in this appeal is whether the Orphans’ Court in York County, Pennsylvania, could properly order an adoption of two minor children upon the sole consent of the children’s father, who had killed the children’s mother, while a custody action was pending in New York between the children’s father and maternal grandparents, without notice to the maternal grandparents or the New York court in which the custody action was pending.

On December 4, 1983, the children’s father killed their mother by stabbing her to death in the family’s home in Brooktondale, Tompkins County, New York. At the time of the stabbing, B.E.W.G., then ten months of age, was present in the home, but S.L.W.G., then four years of age, was visiting her paternal grandfather in New York City. Afterwards, the paternal grandfather also took B.E.W.G. to his home.

On December 21, 1983, the maternal grandparents, Howard and Kay West, filed a petition in the Tompkins County Family Court to obtain custody of their grandchildren. The children’s father had been released on bail, however, and, by order of March 26, 1984, the New York court placed the children in his custody, while awarding visitation privileges to the Wests. This order was to remain in effect until the criminal charges against the father were determined. On May 15, 1984, the Tompkins County Court continued its custody order in effect but expanded the Wests’ visitation privileges. Thereafter, the father took the children from their home in New York, and the Wests did not see them again.

On May 22, 1984, the children’s father was found guilty of manslaughter in connection with the killing of his wife, the children’s mother. Thereafter, on May 29, 1984, the Tompkins County Family Court entered an order awarding temporary custody of S.L.W.G. and B.E.W.G. to the Wests pending further hearing. When an additional hearing was held on June 11, 1984, the father refused to disclose the whereabouts of the children. The New York court thereupon continued temporary custody in the Wests. On November 9, 1984, a final order was entered which awarded permanent custody of the children to their maternal grandparents.

In August, 1985, the grandparents learned for the first time that the children were living with adoptive parents somewhere in Pennsylvania. Unbeknownst to them, the children’s father had delivered the children to Tressler-Lutheran Associates, Inc. of York, Pennsylvania, for adoption, and had executed a “temporary custody agreement” by which he surrendered the children to the agency on a temporary basis until a decision could be made regarding the children’s welfare and custody. Subsequently, the children had been placed by their father and the Tressler-Lutheran Agency in a private home for adoption. On May 16, 1984, the adopting parents filed a report of their intention to adopt the children pursuant to 23 Pa.C.S. § 2531; and on June 4, 1984, a petition for adoption was filed. At a hearing thereon, the Orphans’ Court of York County was told the circumstances surrounding the death of the children’s mother and that their father had been convicted of manslaughter. The court was also informed of the custody proceedings in New York, that the maternal grandparents had been granted visitation, and that they would likely seek permanent custody of the children if the father were convicted and sentenced to prison. At the end of the hearing, the court raised an issue regarding its jurisdiction, deferred making a decision, and continued the hearing until June 25, 1984. It requested counsel “to give the court some assurance ... that the courts of the State of New York do not already have legal jurisdiction over these two children so that the courts of Pennsylvania have no authority at all [or] jurisdiction to take any action[]____” On June 25, 1984, the York County court entered a decree allowing the adoption of S.L.W.G. and B.E.W.G. The record does not disclose that further consideration was given to the custody proceedings in New York or the decree of the New York court which had awarded custody of the children to their maternal grandparents.

The Wests, on January 14, 1986, filed in York County, Pennsylvania, a petition to inspect the impounded record of the adoption proceedings. They also requested that the adoption decree be vacated. Their petition was dismissed on grounds that they lacked standing. On appeal, a panel of this Court reversed. See: In re Adoption of B.E.W.G., 355 Pa.Super. 554, 513 A.2d 1061 (1986). The matter was remanded with instructions to permit the grandparents to examine the adoption record and for the court to decide the petition to vacate. On remand, the Wests argued that the court in York County had lacked jurisdiction to decree an adoption and that the proceedings had been defective because they had neither consented to nor received notice of the adoption proceedings. They also alleged that a fraud had been committed on the court and that the father had failed to comply with the strictures of the Interstate Compact on the Placement of Children. The Orphans’ Court rejected these arguments and dismissed the petition to vacate the adoption decree. This appeal followed.

An adoption decree is presumed to be valid, and the person challenging it bears the burden of showing its invalidity by clear and convincing evidence. In the Matter of the Adoption of Christopher P., 480 Pa. 79, 84, 389 A.2d 94, 97 (1978); Singer Adoption Case, 457 Pa. 518, 522, 326 A.2d 275, 277 (1974); Chambers Appeal, 452 Pa. 149, 152-153, 305 A.2d 360, 362 (1973); List Adoption Case, 418 Pa. 503, 508-509, 211 A.2d 870, 873-874 (1965). In List Adoption Case, supra, the Supreme Court listed five principles of law which are pertinent to a collateral attack on an adoption decree.

In determining this appeal certain principles of law must be kept in mind: (1) an adoption decree entered by a court having jurisdiction over the subject matter and the parties is generally immune from collateral attack, particularly where the record shows a substantial compliance with the adoption statute; (2) where the record in the adoption proceedings affirmatively reveals a lack of jurisdiction, then the adoption decree is subject to collateral attack; (3) notice to a natural parent of the adoption proceedings and the consent of a natural parent, where necessary, are jurisdictional prerequisites in an adoption proceeding; (4) when an adoption decree is collaterally attacked, the entry of the decree raises a presumption of its validity and regularity and an implication arises that the court did find the necessary facts and did perform all the steps essential to the jurisdiction of the court; (5) the burden is upon the person attacking an adoption decree to establish its invalidity by clear and convincing evidence.

Id. (footnotes omitted).

The Orphans’ Court in the instant case determined that the adoption proceedings had not been pursued fraudulently and that the adoption decree had properly been premised upon the father’s consent. The circumstances surrounding the children’s presence in Pennsylvania, the death of their mother, and the pendency of a custody action in New York had been disclosed to the court in York County. Therefore, it cannot be said that the Tressler-Lutheran Agency and the children’s father committed a fraud on the court. The Orphans’ Court, moreover, was acting with the consent of the surviving parent of the children. The provisions of 23 Pa.C.S. § 2711(a) are as follows:

§ 2711. Consents necessary to adoption
(a) General rule. — Except as otherwise provided in this part, consent to an adoption shall be required of the following:
(1) The adoptee, if over 12 years of age.
(2) The spouse of the adopting parent, unless they join in the adoption petition.
(3) The parents or surviving parent of an adoptee who has not reached the age of 18 years.
(4) The guardian of an incompetent adoptee.
(5) The guardian of the person of an adoptee under the age of 18 years, if any there be, or of the person or persons having the custody of the adoptee, if any such person can be found, whenever the adoptee has no parent whose consent is required.

The consent of the person having custody of the adoptee, according to the statute, is necessary only when the adoptee has no parent whose consent is required.

It remains to be determined, however, whether the Orphans’ Court of York County, Pennsylvania, had jurisdiction to decree an adoption of children whose temporary custody had been awarded to their grandparents without requiring that notice of the pending adoption and an opportunity to be heard be given to the grandparents or the New York court in which the custody action was still pending. The Adoption Law, at 23 Pa.C.S. § 2721, provides that

“----Notice of the hearing shall be given to all persons whose consents are required and to such other persons as the court shall direct. Notice to the parent or parents of the adoptee, if required, may be given by the intermediary or someone acting on his behalf. Notice shall be by personal service or by registered mail to the last known address of the person to be notified or in such other manner as the court shall direct.

The grandparents, as we have already observed, were not persons whose consents to the adoption were specifically required by the statute. Still, they had been awarded custody of their grandchildren by a New York court in preference to the father who had been convicted of killing the children’s mother. To permit the children’s father to remove the children from New York and, with the assistance of the Pennsylvania courts, thwart the New York custody decree by an adoption proceeding calculated to cut off the rights of the grandparents is offensive to the judicial mind. The grandparents were, at the very least, entitled to notice and an opportunity to be heard.

If the adoption action in York County, Pennsylvania, had been an action for the custody of the children, the York County court could not have proceeded. Section 5347 of the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S. § 5347, would have prevented a Pennsylvania court from exercising jurisdiction. The statute provides as follows:

§ 5347. Simultaneous proceedings in other states
(a) General rule. — A court of this Commonwealth shall not exercise its jurisdiction under this subchapter if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter, unless the proceeding is stayed by the court of the other state because this Commonwealth is a more appropriate forum or for other reasons.
(b) Procedure. — Before hearing the petition in a custody proceeding the court shall examine the pleadings and other information supplied by the parties under section 5350 (relating to information under oath to be submitted to the court) and shall consult the child custody registry established under section 5357 (relating to registry of out-of-state custody decrees and proceedings) concerning the pendency of proceedings with respect to the child in other states. If the court has reason to believe that proceedings may be pending in another state it shall direct an inquiry to the state court administrator or other appropriate official of the other state.
(c) Stay; communication with other court. — If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections 5360 (relating to hearings and studies in another state; orders to appear) through 5363 (relating to request for court records of another state). If a court of this Commonwealth has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.

Several courts have held that these statutory provisions are equally applicable to adoption proceedings. Thus, in the Matter of the Adoption of K.C.P., 432 So.2d 620 (Fla.Dist. Ct.1983), it was held that under the Uniform Child Custody Jurisdiction Act, a Florida court lacked jurisdiction to enter an adoption decree while a custody action was pending in New York. See also: Noga v. Noga, 111 Ill.App.3d 328, 67 Ill.Dec. 18, 443 N.E.2d 1142, (1982) (where adoption proceeding already pending in Arkansas, Illinois court properly declined to exercise its jurisdiction to consider petition for visitation rights as the Arkansas adoption proceeding was a custody proceeding within the scope of Uniform Child Custody Jurisdiction Act); Roth v. Hatfield, App. No. 82CA 19, 20 & 21, Ohio Court of Appeals, Fourth Appellate Dist., Gallia County (Slip Op. December 28, 1983) (unreported) (Ohio court lacked jurisdiction to enter adoption decree while custody action was on-going in Michigan). Cf. In re Adoption of Baby Boy W., 701 S.W.2d 534 (Mo.App.1985) (Missouri court’s jurisdiction to enter adoption decree not defeated by Indiana custody decree where Indiana court lacked jurisdiction under Uniform Child Custody Jurisdiction Act); E.E.B. v. D.A., 89 N.J. 595, 446 A.2d 871 (1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1203, 75 L.Ed.2d 445 (1982) (New Jersey court had jurisdiction of adoption proceeding under Uniform Child Custody Jurisdiction Act, notwithstanding habeas corpus/custody action in Ohio, where Ohio court had declined to exercise its jurisdiction). Contra: Olivo v. Gainey, 185 Ga.App. 427, 364 S.E.2d 279 (1987) (Uniform Child Custody Jurisdiction Act inapplicable to adoption proceedings), overruling In re C.C.B., 164 Ga. App. 3, 296 S.E.2d 198 (1982); In re Johnson, 415 N.E.2d 108 (Ind.App.1981) (jurisdiction for termination of parental rights is not encompassed by Uniform Child Custody Jurisdiction Act, as such action does not establish or modify custody decree, but is properly determined under adoption statutes). Because the effect of a final decree of adoption is to terminate all legal rights between the adopted child and the child’s relatives, including grandparents, an adoption decree will necessarily terminate the custody rights of grandparents. In order to prevent by adoption that which cannot be achieved by custody proceedings, the provisions of the Uniform Act must also be applied to adoption proceedings. We conclude, in the absence of Pennsylvania precedent to the contrary, that this is the better view.

Our holding is consistent with the reasons for adopting the Uniform Child Custody Jurisdiction Act and the stated purposes thereof. These include, inter alia, the avoidance of “jurisdictional competition and conflict with courts of other states in matters of child custody”; the promotion of “cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child”; the assurance “that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection”; the deterrence of “abductions and other unilateral removals of children undertaken to obtain custody awards.” See: 42 Pa.C.S. § 5342(a)(1), (2), (3), (5).

Even if the Uniform Child Custody Jurisdiction Act is not applicable to adoption proceedings, however, it does not follow that Pennsylvania courts can ignore with impunity a custody action or decree in the courts of a sister state. The Pennsylvania Adoption Law, which provides for notice “to such other persons as the court shall direct,” requires at the very least that notice of the adoption proceedings be given to the parties to a pending custody action or, as here, to grandparents who have been granted custody of the children by the court of another state. A party who has been awarded custody of the children by a court in preference to a father who has killed the children’s mother cannot be ignored by the forum court where the father has attempted to place the children for adoption. The courts of this Commonwealth will not be permitted to become accessories to the conniving act of a parent who attempts to evade a custody order entered by the courts of another state. Here, the father unilaterally had removed the children from the State of New York, in defiance of custody proceedings there pending, and had surrendered them for adoption in Pennsylvania. The court in Pennsylvania, having had knowledge of the custody proceedings in New York, could not enter an adoption decree calculated to defeat the New York custody decree without communicating with the New York court and giving notice to the persons who had been awarded custody in the New York action. When it nevertheless attempted to do so, the court abused its discretion.

Having determined that the Pennsylvania adoption proceedings were defective, the adoption decree must be vacated.

The order dismissing appellant’s petition to vacate the adoption decree is reversed. The adoption decree of June 25, 1984, is vacated and set aside.

      . He is presently serving a term of imprisonment for not less than 8‘A years nor more than 25 years in New York.

      . In fact, custody had been awarded to the grandparents on May 29, 1984.

      . Act of June 13, 1967, P.L. 31, § 761, as amended, 62 P.S. § 761.

      . Sometime in early July, 1984, the adoptive parents ■ returned the children to the Tressler-Lutheran Agency, and the children were thereafter readopted by other adoptive parents. The propriety of the later adoption is not before us in this appeal. We recognize, however, that our decision in the instant case may have an effect on the validity of the "consents" offered in the later action.

      . In view of this decision, we do not determine the difficult issue of whether the Interstate Compact, 62 P.S. § 761, has application to a parent who places his children for adoption in another state.


author: BECK, Judge: DEL SOLE, Judge,

text:
    549 A.2d 1291
    In re ADOPTION OF Kristy D. HAMILTON. In re Termination of Parental Rights of Ernest HAMILTON. Appeal of Ernest A. HAMILTON.
    Superior Court of Pennsylvania.
    Submitted June 27, 1988.
    Filed Oct. 26, 1988.

      F. Cortez Bell, III, Clearfield, for appellant.

      Before ROWLEY, DEL SOLE and BECK, JJ.
   BECK, Judge:

Ernest Hamilton appeals from an order of the Clearfield County Orphans’ Court, involuntarily terminating his parental rights to his daughter Kristy. In this appeal we especially consider the effect of a parent’s subsequent remedial behavior, after abandoning a child, in light of the child’s needs and welfare.

Appellee Brenda Wilt, Kristy’s natural mother, has custody of the child. Wilt and her new husband, who wishes to adopt Kristy, petitioned to terminate Hamilton’s parental rights under 23 Pa.Cons.Stat.Ann. § 2511(a)(1) (Purdon Supp.1988). After a hearing, the orphans’ court entered a memorandum and order, dated May 16, 1986, terminating Hamilton’s parental rights.

Hamilton appealed, and the Superior Court vacated the order and remanded for proceedings in accordance with the Rules of Civil Procedure including the requirement that the orphans’ court enter an adjudication and decree nisi under Rule 1517 and afford the parties an opportunity to file post-trial motions under Rule 227.1. In re Adoption of Hamilton, 362 Pa.Super. 249, 523 A.2d 1176 (1987).

Despite our explicit instructions, rather than enter an adjudication and decree nisi, the orphans’ court stated that it treated the order of May 1986, which the Superior Court vacated, as a decree nisi. It permitted Hamilton to file proposed findings of fact and conclusions of law in lieu of exceptions. After a hearing, the court then entered a final order on February 5, 1988, in which it implicitly denied Hamilton’s challenges to the May 16, 1986 order (decree nisi) and affirmed its order of May 16, 1986. Hamilton filed a timely appeal to the final February 5, 1988 order.

Although ordinarily we might remand for the trial court to follow the proper procedure as formulated in the Rules of Civil Procedure, we will not do so in this case. The trial court explained satisfactorily its deviations from accepted procedure, the parties were not prejudiced by the procedure, meaningful appellate review can be made on the basis of the record, and most importantly, the case involves the relationship of a child to her parents. Given the two-year delay in this case because of the original procedural misstep and the remand, we recognize an urgency in finally resolving this matter.

The evidentiary standard for terminating parental rights was formulated by the United States Supreme Court which established that parental rights may not be terminated in the absence of clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In In re: T.R., 502 Pa. 165, 465 A.2d 642 (1983) our state supreme court adopted the reasoning of Santosky as a matter of state law applicable to all termination proceedings. This principle requires evidence which is “so clear, direct, weighty, and convincing as to enable the [factfinder] to come to a clear conviction without hesitancy of the truth of the precise facts in issue.” In re Shives, 363 Pa.Super. 225, 227-28, 525 A.2d 801, 802 (1987) (citation omitted). In assessing whether the trial court’s determination is based on clear and convincing evidence, we review the chancellor’s findings. In the Matter of Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984), quoted in In re Adoption of Faith M., 509 Pa. 238, 240, 501 A.2d 1105, 1106 (1985); In re J.G.J., Jr., 367 Pa.Super. 425, 532 A.2d 1218 (1987). “Absent an abuse of discretion, an error of law or insufficient evidentiary support for the findings of the Orphans’ Court, an appellate court will not reverse a hearing court’s order to terminate.” Shives, supra, 363 Pa.Super. at 227-28, 525 A.2d at 802.

We ,review the facts, with all conflicts resolved in favor of the orphans’ court as trier of fact and sole judge of credibility. In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986). The parties were married in 1977. Kristy was born on July 4, 1977. The parties separated in 1978 and were divorced in 1979. They agreed informally to Wilt’s custody of Kristy and Hamilton’s right to visitation. Because she received public assistance, Wilt brought a support action against Hamilton. Hamilton was ordered to pay $52 per month.

Since the separation in 1978, through Christmas 1982, Hamilton had contact with Kristy approximately twice a year, around Christmas and her July birthday. These contacts included visits when Wilt would bring Kristy unannounced to Hamilton’s family, and once, Hamilton visited at Wilt’s residence. However, the court found that the pattern of contact ceased and in 1983 and 1984 Hamilton had no contact with Kristy. The court made this finding of fact based on Wilt’s testimony. It appears that the court did not credit the testimony of two of Hamilton’s and one of Wilt’s witnesses, who testified to the contrary. During this period, both Wilt and Hamilton remarried. We also note that by 1985, Hamilton accumulated extensive arrearages under the support order.

Sometime in April 1985, Hamilton visited Kristy once. The following week, Hamilton again attempted to see Kristy but Wilt denied him visitation. He filed a petition for visitation. Wilt and Hamilton then stipulated to a visitation schedule which became a court order. Two months after the court entered its visitation order, Wilt and her husband filed the termination petition. In September 1985, Hamilton petitioned the court to enforce the visitation order. The court granted Hamilton’s petition to enforce the order.

In Wilt’s termination petition, she alleged that during a period of at least six months Hamilton evidenced a settled purpose of relinquishing his parental claim to Kristy and that he refused or failed to perform his parental duties. Acting on Wilt’s termination petition, on May 16, 1986 the court entered an order terminating Hamilton’s parental rights. It found that for a period of at least six months, Hamilton both evidenced a settled purpose of relinquishing his parental claim or failed to perform his parental duties. This holding was based on 23 Pa.Cons.Stat.Ann. § 2511(a)(1), which provides that parental rights may be terminated if:

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.

Parents who fail to have contact or meet their parental obligations to a child for six months do not automatically forfeit their parental rights. Pennsylvania courts have wisely refused to apply the statutory six-month requirement mechanically. Instead the trial court is required to review the entire circumstance and make inquiry into to the reasons for the parent’s failure. As has been noted:

[E]ven where it is established that a parent has failed to perform parental duties for a period in excess of six (6) months “such a finding does not, in and of itself, support an order terminating parental rights.” ... Rather, the Court then must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of circumstances, clearly warrants permitting the involuntary termination of said parent’s parental rights____ In deciding this sensitive question, this Court is mindful of the irreversible nature and serious emotional impact which necessarily follow an involuntary termination of parental rights. In re Adoption of Orwick, 464 Pa. 549, 555, 347 A.2d 677, 680 (1975) (citations omitted).

In re Adoption of Ostrowski, 324 Pa.Super. 216, 219, 471 A.2d 541, 543 (1984).

Courts are required not only to focus on the behavior of the parent but more importantly, are required to consider the effects of termination on the welfare of the child. In re Adoption of A.N.D., 360 Pa.Super. 157, 520 A.2d 31 (1986). 23 Pa.Cons.Stat.Ann. § 2511(b) provides the statutory basis for this principle:

The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child.

“ ‘Once we have determined that the statutory grounds for involuntary termination of parental rights have been proved, it is the child’s welfare that is paramount.’ Adoption of David C., 479 Pa. [1] at 17, 387 A.2d [804] at 812.” Baby Boy A. v. Catholic Social Services, 512 Pa. 517, 517 A.2d 1244 (1986). “Judicial inquiry is to be centered on the best interest of the child, rather than the fault of the parent.” Adoption of J.J., supra, 511 Pa. at 595, 515 A.2d at 892.

In summary, in Pennsylvania the court first determines if the statutory requirements for termination in Section 2511(a)(1) have been satisfied. If they have, the court assesses any explanation of extenuating circumstances made by the parent. Next the court evaluates any post-abandonment contact between the parent and child, and lastly and most importantly the court assesses the effect of termination on the needs and welfare of the child.

On appeal, Hamilton argues that the court erred in finding that for a period in excess of six months he exhibited conduct evidencing a settled purpose of relinquishing his parental claim. We find no merit in Hamilton’s assertion and conclude that the court correctly determined that Wilt satisfied the statutory burden. The evidence clearly and convincingly supports the court’s conclusion that Hamilton had no contact with Kristy in 1983 and 1984 and that his behavior was consistent with a settled purpose of relinquishing parental claim to Kristy.

The second line of inquiry in appellate review is whether the record shows that Hamilton satisfactorily explained his extended absence from Kristy’s life. We find no satisfactory explanation of record for his absence in 1983 and 1984.

However, our inquiry is not at an end. In deciding whether parental rights have in fact been lost, the parent’s post-abandonment conduct is relevant. In re Adoption of Durham, 320 Pa.Super. 508, 467 A.2d 828 (1983). The totality of the circumstances test includes an evaluation of the period after the abandonment period. Id.

After the two-year hiatus, Hamilton visited Kristy once, was denied visitation once, petitioned the court to order visitation, petitioned the court to enforce the visitation, obtained a supersedeas to continue visitation during the appeal process, and obtained an increase in visitation during the lengthy remand procedure. Hamilton’s post-abandonment behavior is an affirmative demonstration of his intention to assume parental responsibilities toward Kristy.

Although the petition for visitation and the subsequent petition to enforce visitation were in the record at the time of the initial order of May 1986, the orphans’ court does not refer to Hamilton’s subsequent behavior in its 1986 order or 1988 opinion and final order. It is essential that a court consider post-abandonment behavior in assessing a termination petition.

The court erred in not evaluating Hamilton’s post-abandonment behavior. See Harvey Adoption Case, 375 Pa. 1, 99 A.2d 276 (1953). Parents may not have contact with a child for six months or more and then realize that they have made a terrible mistake. Their renewed efforts at assuming parental responsibilities will not cure prior abandonment but may demonstrate a serious intent to establish and continue a child-parent relationship that will be important and beneficial to the child. To be legally significant the contact must be steady and consistent over a period of time, contribute to the psychological health of the child, and must demonstrate a serious intent on the part of the parent to recultivate a parent-child relationship and must also demonstrate a willingness and capacity to undertake the parental role. The parent wishing to reestablish his parental responsibilities bears the burden of proof on this question.

We are mindful that:

[I]t is well established that once the statutory period of abandonment has passed, mere renewal of interest and expression of desire for the return of a discarded child do not negate the abandonment____ The wise requirement that a parent’s right to a relationship with his child can only be terminated on clear and convincing evidence does not make parents owners of their children, free to cast them aside, as unwanted toys, for more than six months and then pick them up to play with again when the fancy strikes them.

Baby Boy A. v. Catholic Social Services, supra, 512 Pa. at 521, 517 A.2d at 1246-47 (citations omitted).

We are not suggesting for example, that a parent may show a settled intention one year to abandon a child and then change his or her mind the following year and automatically preserve his or her rights as a parent. Abandonment has a serious emotional impact upon a child. If an abandoning parent has a change of heart and wishes to reestablish the relationship, in addition to evaluating the parent’s behavior, the court must evaluate the effect of the parent’s change of heart upon the child. A parent’s attempt to reaffirm his or her parental duties after a period of time may well be detrimental to the child’s welfare. The initial emotional harm caused by the abandonment could be compounded by an ephemeral parent-child relationship and subsequent deterioration and further abandonment. The court must determine if it is in the child’s best interests to continue the parent-child relationship.

Lastly, we review the trial court’s assessment of parental termination on the needs and welfare of the child. In this inquiry, we examine the record to determine whether the parent petitioning for termination, in this case, Wilt, made a clear showing that termination served the needs and welfare of the child. 23 Pa.Cons.Stat.Ann. § 2511(b). In re Adoption of J.J., supra; In re Adoption of A.N.D., 360 Pa.Super. 157, 520 A.2d 31 (1986). We find no evidence of record that termination served the needs and welfare of the child, and we find no discussion on the part of the court that termination was in the best interests of the child.

The court must determine by a clear and convincing showing that termination of the parent-child relationship is in the best interests of the child. An essential inquiry is whether termination serves the needs and welfare of the child. In Harvey Adoption Case, supra, the Supreme Court found that even if abandonment is proved, the court must consider whether the welfare of the child itself warrants granting of petitions to terminate. Id. 375 Pa. at 9-10, 99 A.2d at 280. Our Supreme Court in an incapacity/neglect case, stated that, “because of the importance placed on the family, the Commonwealth may disrupt the parent-child relationship only upon a clear showing of necessity.” In re Adoption of R.I., 468 Pa. 287, 293, 361 A.2d 294, 297 (1976), cert. denied, 429 U.S. 1032, 97 S.Ct. 722, 50 L.Ed.2d 743 (1977); see also In Interest of C.W., 360 Pa.Super. 136, 142, 519 A.2d 1030, 1033 (1987), (citing In re Interest of C.M.E., 301 Pa.Super. 579, 448 A.2d 59 (1982)).

We underscore that there is nothing in the record which suggests that termination of Hamilton’s relationship with his daughter is necessary and that it would serve her needs and welfare. On the contrary, the record reveals that Hamilton’s repeated petitions and assertions of visitation rights with Kristy since April 1985, have led to the resurgence of their father-daughter relationship.

In summary, we conclude that Wilt met the statutory requirement of showing that Hamilton evidenced for a period of more than six months a settled purpose of relinquishing his parental claim to Kristy and that Hamilton offered no evidence of extenuating circumstances. However, based on Hamilton’s post-abandonment behavior and the failure of Wilt to show that needs and welfare of Kristy would be served by termination, we find the trial court abused its discretion in terminating Hamilton’s parental rights.

Order reversed. Jurisdiction relinquished.

DEL SOLE, J., files a concurring statement.

DEL SOLE, Judge,

concurring:

I join the majority. Here, while there was an abandonment, it apparently ended as evidenced by the parents’ consent to a visitation order before the termination petition was filed. Therefore, the trial court must examine evidence to determine the best interest of the child before terminating the father’s rights. See 23 Pa.C.S.A. § 2511(b).


author: HOFFMAN, Judge:

text:
    549 A.2d 1296
    COMMONWEALTH of Pennsylvania v. Freddie GIBBONS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 9, 1988.
    Filed Nov. 4, 1988.

      Maryann F. Swift, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for robbery, 18 Pa.C.S.A. § 1103, and possession of an instrument of crime, 18 Pa.C.S.A. § 1104. Appellant contends that the trial court erred in (1) denying his motion to dismiss under Pa.R.Crim.P. 1100; (2) granting the Commonwealth’s motion to consolidate six separate cases for trial; (3) denying his motion to suppress evidence seized during a consent search of appellant’s home; (4) excusing a juror; and (5) refusing to charge the jury to view identification testimony with caution. Appellant also contends that the court abused its discretion in imposing an excessive sentence. For the reasons set forth below, we affirm the judgment of sentence.

On December 13, 1985, appellant was arrested and charged with six counts of robbery and six counts of possession of an instrument of crime. The charges stemmed from six separate incidents that occurred over a three month period in 1985. The Commonwealth filed, and the court below granted, a motion to consolidate the six cases on the basis that they involved a common scheme. Following a jury trial, appellant was found guilty of all charges. Post-trial motions were filed and denied. Appellant was sentenced to an aggregate term of twenty-one-to-forty-two years imprisonment. This appeal followed.

Appellant contends initially that the court erred in denying his pre-trial petition to dismiss under Rule 1100. According to appellant, Rule 1100 requires that all requests for extension of trial date must be in writing. Specifically, appellant argues that because the Commonwealth orally amended its petition and failed to file a written amendment as required by Rule 1100, the Commonwealth did not comply with the requirements of Rule 1100. We disagree.

Pennsylvania Rule of Criminal Procedure 1100 sets forth the prompt trial requirement and provides in relevant part:

(a)(2) Trial in a court case in which a written complaint is filed against the defendant ... shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

Id. Rule 1100 mandates that a defendant be discharged unless all periods of delay beyond the one-hundred-eighty day run date for the commencement of trial are attributable to either an extension granted to the Commonwealth or an exclusion of time resulting from either the unavailability of defendant or counsel, or a continuance chargeable to the defense. Pa.R.Crim.P. 1100(c)(1) and (d)(3). See also Commonwealth v. Lafty, 333 Pa.Super. 428, 433, 482 A.2d 643, 645 (1984).

Prior to the expiration of the date scheduled for the commencement of trial, the Commonwealth may apply to the court for an order extending the trial date. Pa.R. Crim.P. 1100(c)(1). “Where the Commonwealth, despite due diligence, cannot timely bring a defendant to trial because of judicial delay, the court properly may grant an extension.” Commonwealth v. Colon, 317 Pa.Super. 412, 420, 464 A.2d 388, 392 (1983). Once the Commonwealth has filed a petition for an extension, it may orally amend the existing petition provided that notice was given to defendant at the time of the filing of the initial petition. Commonwealth v. Smith, 348 Pa.Super. 81, 90-91, 501 A.2d 656, 661 (1985).

Here, the written complaint against appellant was filed on December 10, 1985, and the run date for the commencement of trial was June 11, 1986. Appellant’s trial, however, did not commence until October 7, 1987, five-hundred-eighteen days after the complaint was filed. The running of the one-hundred-eighty-day period was initially tolled for four months by the unavailability of the trial judge. See Commonwealth v. Colon, 317 Pa.Super. at 420, 464 A.2d at 392. In addition, because of several requests for continuances and defense counsel’s unavailability as a result of other trial commitments, appellant concedes, in his brief, that two-hundred-twenty-eight days are excludable from the computation. See Pa.R.Crim.P. 1100(d)(3)(i) and (ii).

In response to the judicial delay, the Commonwealth filed a written petition requesting additional time for trial premised on the preparation time necessary to accommodate the consolidation of the six cases. The petition was timely filed and served on appellant and it maintained how the Commonwealth was diligent in attempting to bring appellant to trial despite the court’s and defense counsel’s scheduling problems (the court’s four month unavailability and the withdrawal of initial counsel). See Commonwealth v. Colon, 317 Pa.Super. at 420, 464 A.2d at 395. The court granted the petition.

On three subsequent occasions, the Commonwealth orally amended its petition. The grounds for the amendments included a defense request for a continuance, unavailability of defense counsel, and judicial delay. See Commonwealth v. Smith, 348 Pa.Super. at 91, 501 A.2d at 661. The court granted the amendments and again extended the date for trial. We note that the Commonwealth’s oral amendments were not separate entities from the original petition, but requests to enlarge the period of time as a primary result of the court's and defense counsel’s scheduling problems. See id. Thus, because the Commonwealth previously filed a written petition meeting all the requirements of Rule 1100, the oral amendments were permissible. See id.

Accordingly, because the amendments were not new requests but “merely ... reasonable amendments] to the existing petition which previously established the Commonwealth’s diligence and provided appellant with the requisite notice.” id., the Commonwealth’s oral amendments were not improper.

Additionally, appellant’s claim is without substance because after deducting the excludable and extendable time from the period of time between the filing of the complaint and the commencement of trial, appellant was tried well within one-hundred-eighty days. Thus, the court correctly denied appellant’s motion to dismiss under Rule 1100. See id.

Appellant next contends that the court erred in granting the Commonwealth’s motion to consolidate the six cases pending against him. Appellant argues that the Commonwealth failed to offer proof that all the crimes were the product of the same common scheme. According to appellant he was prejudiced by the consolidation of his six separate cases, because it permitted evidence of unrelated crimes to be presented to the jury. Because the court improperly granted the motion to consolidate, appellant believes that he is entitled to six new individual trials. We disagree.

The decision to grant or deny a motion for consolidation of charges for trial is a matter within the discretion of the trial court judge, and that decision shall not be reversed absent a manifest abuse of discretion or a showing of prejudice and clear injustice to the defendant. Commonwealth v. Peppers, 357 Pa.Super. 270, 274, 515 A.2d 971, 973 (1986) (citations omitted); Commonwealth v. Thomas, 361 Pa.Super. 1, 6, 521 A.2d 442, 445 (1987). The consolidation of indictments or informations for trial is encouraged when the needs of judicial economy will be best served. Commonwealth v. Thomas, 361 Pa.Super. at 6, 521 A.2d at 445 (1987).

The test of whether consolidation is proper is related to the test of whether evidence of one crime may be admitted at trial for another. The present rule in Pennsylvania [Pa.R.Crim.P. 1127] is that consolidation is proper ... if (1) the facts and elements of the two crimes are easily separable in the minds of the jury; [or] (2) the crimes are such that the fact of the commission of each crime would be admissible as evidence in a separate trial for the other.

Commonwealth v. Galloway, 302 Pa.Super. 145, 154, 448 A.2d 568, 573 (1982) (citations omitted).

Although as a general rule evidence of crimes unrelated to the one charged are inadmissible, it is well-established that evidence of one crime is admissible in limited circumstances against a defendant where it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial. Commonwealth v. Robinson, 361 Pa.Super. 87, 89-90, 521 A.2d 940, 941 (1987) (citing Commonwealth v. Peterson, 453 Pa. 187, 197-193, 307 A.2d 264, 269 (1973), quoted in Commonwealth v. Brown, 351 Pa.Super. 119, 505 A.2d 295, 299 (1986)). Generally, when the evidence is relevant and concerns one of these five issues, the prejudicial effect to the defendant may be outweighed by the probative value. Commonwealth v. Clayton, 516 Pa. 263, 276 n. 8, 532 A.2d 385, 392 n. 8 (1987).

Here, we are satisfied that there is sufficient similarity between the cases to justify consolidation and admission of evidence regarding each at the trial for the other for the purpose of showing a common scheme. Factually, all the offenses are of the same character within the meaning of Rule 1127(A)(1). Each of the six offenses was a robbery and involved identical methods. The Commonwealth offered proof of the following common elements of the six separate offenses: Each of the six victims was a deliveryman in the process of making a delivery in the early afternoon hours. All of the offenses occurred during a five-and-one-half week period and all took place within the same vicinity. All the victims were robbed at knifepoint by a single actor and had money taken directly from their pants pockets.

Consolidation is proper “where the crimes are such that the fact of the commission of each crime would be admissible as evidence in a separate trial for the other.” Pa.R. Crim.P. 1127A(l)(a); See Commonwealth v. Galloway, 302 Pa.Super. at 154, 448 A.2d at 573. Based on the foregoing facts, the crimes in question amount to a series of events sharing the same common features and creating a sufficient likelihood that the same individual was responsible for the crimes. See Commonwealth v. Clayton, 516 Pa. at 276, 532 A.2d at 393. Thus, the offenses are sufficiently linked as to be admissible as evidence in each of the other trials. See Commonwealth v. Galloway, 302 Pa.Super. at 154, 448 A.2d at 573. Moreover, because evidence of each offense would be permissible and relevant for the purpose of showing a common design, appellant’s claim that he was prejudiced by the introduction of evidence of all six offenses consolidation is without merit. See Commonwealth v. Clayton, 516 Pa. at 276, 532 A.2d at 393. Accordingly, we conclude that the lower court did not abuse its discretion in granting the motion to consolidate. See Commonwealth v. Peppers, 357 Pa.Super. at 274-75, 515 A.2d at 973.

Next, appellant contends that the lower court erred in refusing to suppress the items seized from his bedroom during an invalid consent search. Specifically, appellant argues that the search was defective on three grounds. First, appellant contends that because he is an adult, his mother was unable to consent to a search of his room. Second, appellant contends that when the police officers asked for permission to search the premises, they failed to inform his mother that if she did not consent, a warrant would be obtained in order to search the premises. Third, appellant contends that the police officers failed to “memorialize” the search until after its completion. We will address these contentions seriatim.

Initially, appellant argues that because he is an adult his mother lacked authority to consent to the search and thus, the search was invalid. We disagree.

The law is well-settled that a warrantless search may be made with the voluntary consent of a third party who possesses “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Commonwealth v. Lowery, 305 Pa.Super. 66, 73, 451 A.2d 245, 248 (1982) (citing United States v. Matlock, 415 U.S. 164, 168, 172, 94 S.Ct. 988, 991-92, 993-94, 39 L.Ed.2d 242 (1974)).

Common authority ... rests ... on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Id. 305 Pa.Super. at 73, 451 A.2d at 248 (quoting United States v. Matlock, 415 U.S. at 173, n. 7, 94 S.Ct. at 993-94, n. 7) (citations omitted). Our courts have held that a family member has the common authority to permit a search of the family home unless one family member has manifested and exhibited an intent to exclude others from certain areas of the home. Commonwealth v. Van Jordan, 310 Pa.Super. 516, 523, 456 A.2d 1055, 1058 (1983); Commonwealth v. Lowery, 305 Pa.Super. at 73, 451 A.2d at 247-48; Commonwealth v. Reiland, 241 Pa.Super. 109, 115-16, 359 A.2d 811, 814 (1976). Absent such an intention, where there exists joint access or control, there can be no reasonable or legitimate expectation of privacy and thus, a warrantless search may be made with the voluntary consent of a third party. Commonwealth v. Lowery, 305 Pa.Super. at 73, 451 A.2d at 248.

In this analysis, we note that when the findings of the suppression court are sufficiently supported by the record, they will not be disturbed on appeal. Commonwealth v. Lowery, 305 Pa.Super. at 69, 451 A.2d at 246.

Here, appellant mistakenly challenges the validity of the search on the basis that his status as an adult precludes his mother from giving her consent to a search of their house. The law is very clear, however, that the determination of whether a third party may consent to a warrantless search does not depend on the age of the nonassenting party but on the “common authority” or “special relationship” shared by the cohabitants of the premises. See id., 305 Pa.Superior Ct. at 73, 451 A.2d at 248.

In this case, our review of the record discloses that appellant resided with his mother and family in their home. See Motion to Suppress at 164, 176. When the police asked appellant’s mother for her permission to search the premises, she voluntarily consented to the search. See id. at 165. Subsequently, at the suppression hearing, appellant neither claimed nor introduced evidence that his mother did not share dominion over the premises or that he had expressed an intent to exclude persons from his bedroom. See Motion to Suppress at 164-179. See also Commonwealth v. Van Jordan, 310 Pa.Super. 516, 523, 456 A.2d 1055, 1058 (1983); Commonwealth v. Lowery, 305 Pa.Super. at 73, 451 A.2d at 247-48; Commonwealth v. Reiland, 241 Pa.Super. 109, 115-16, 359 A.2d 811, 814 (1976). Moreover, this court has held that, “a parent has the authority to consent to a search of his [or her] child’s quarters in the parent’s home”, unless the child has manifested an expectation of privacy. Commonwealth v. Lowery, 305 Pa.Super. at 73, 451 A.2d at 247-48 (citing Commonwealth v. Reiland, 241 Pa.Super. at 115, 359 A.2d at 814). Accordingly, because appellant’s mother possessed “common authority” over the premises and because appellant did not manifest an expectation of privacy, we conclude that the lower court did not err in finding that the consent search was not invalid on this ground.

Appellant’s second argument is that the police were required to inform his mother that without her consent, a search warrant would be issued. Appellant fails to cite any legal authority for this proposition nor does he present an argument on this point. Accordingly, because this issue is not addressed in the argument portion of appellant’s brief, appellant has failed to comply with the briefing requirement pursuant to Pa.R.A.P. 2119, and has waived this claim. See Commonwealth v. Colbert, 476 Pa. 531, 534-35 n. 1, 383 A.2d 490, 491-92 n. 1 (1978) (claim waived when no argument presented in appellate brief).

Appellant’s third argument is that the police were required to have appellant’s mother sign a consent form before searching appellant’s home. According to appellant, the police are required by Pa.R.Crim.P. 2008 to memorialize a search before conducting it and then provide a copy of the receipt listing any property seized from the premises to the consenting party. Appellant argues that the failure of the police to follow this procedure invalidates the search of his home. We disagree.

Under Pennsylvania law, a valid consent search requires that the consent be voluntary and not the result of duress, force or coercion. Commonwealth v. Markman, 320 Pa. Super. 304, 314, 467 A.2d 336, 341-42 (1983). There is no additional requirement that a consent search be memorialized by a signed written consent. Id.

For it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning. Consent searches are part of the standard investigatory techniques of law enforcement agencies. They normally occur on the highway, or in a person’s home or office, and under informal and unstructured conditions.

Id., 320 Pa.Superior Ct. at 315, 467 A.2d at 342 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 231-32, 93 S.Ct. 2041, 2050, 36 L.Ed.2d 854 (1973)).

Here, appellant is misguided in his assertion that the directives of Rule 2008 apply to this case. As the Commonwealth correctly points out in its brief, see Brief for Appellee at 18-19, Rule 2008 pertains only to searches conducted pursuant to a warrant. See Pa.R.Crim.P. 2008. See also Commonwealth v, Markman, 320 Pa.Super. at 315, 467 A.2d at 342. In this case, the search was consented to by appellant’s mother and, therefore, the police were not required to have the consenting party sign an acknowledgment form either before or after the search was conducted. See id. Because Rule 2008 does not apply to consent searches, appellant was neither prejudiced nor were his rights violated when the police drafted a consent form after the completion of the search and had appellant’s mother sign the form at that time.

Accordingly, the trial court properly denied appellant’s suppression motion and permitted the introduction into evidence of items seized during the search.

Appellant further contends that the court below committed reversible error when it excused a juror, during individual voir dire, after the juror complained that she was “too nervous” to sit on the jury. Appellant argues that the court’s removal of the juror was an abuse of discretion and a denial of his right to a jury of his own selection and that a new trial is warranted. We disagree.

It is well-settled that the discharge of a juror is within the sound discretion of the court and that determination will not be reversed absent a palpable abuse of discretion. Commonwealth v. Graves, 316 Pa.Super. 484, 492, 463 A.2d 467, 471 (1983); Commonwealth v. Black, 474 Pa. 47, 57, 376 A.2d 627, 632 (1977).

In this case, after five jurors had been selected from the venire, the court continued the individual voir dire of the remaining venirepersons. At that time, the court crier advised the court that one of the selected jurors, Kecia Brinkley, voiced her concern that she was too nervous to sit on the jury. See N.T. October 7, 1987 at 34. Thereupon, over defense counsel’s objection, the court excused Kecia Brinkley from the jury. See id. In its opinion, the court stated that the juror could not fulfill her role as a competent juror and to ensure that appellant received a fair and impartial trial, it excused the juror as a precautionary measure. See Trial Court Opinion at 4. It was well within the court’s discretion to excuse the juror on the basis that she could not function in her capacity as a member of the jury. See Commonwealth v. Graves, 316 Pa.Super. at 492, 463 A.2d at 471; Commonwealth v. Black, 474 Pa. at 57, 376 A.2d at 629.

Moreover, appellant did not object to any of the. other jurors selected from the venire after Kecia Brinkley was excused. See N.T. Jury Voir Dire October 7, 1987 at 34-40. Furthermore, appellant has not alleged that any of the jury members should have been stricken for cause. Accordingly, because appellant received a fair trial by an impartial jury, we conclude that the lower court did not abuse its discretion in excusing Kecia Brinkley because of her inability to perform as a juror. See Commonwealth v. Graves, 316 Pa.Super. at 492, 463 A.2d at 471; Commonwealth v. Black, 474 Pa. at 57, 376 A.2d at 629.

Next, appellant contends that the court erred in denying his request for a jury instruction on the issue of the court’s denial of his motion for a pre-trial line-up. Specifically, appellant argues that the jury should have been given a Sexton charge to cure the suggestiveness of his in-court identification. Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979).

In Commonwealth v. Sexton, the Pennsylvania Supreme Court held that there is no constitutional right to a pre-trial line-up. Id,., 485 Pa. at 25, 400 A.2d at 1292 (1979). In those circumstances, however, where a witness had no opportunity to view the defendant prior to making an in-court identification, the court stated that the harm caused by the suggestive in-court confrontation could be remedied by advising the jury that the defendant sought and was denied an opportunity for a more objective setting than the one from which the identification introduced at trial emanated. Id., 485 Pa. at 25, 400 A.2d at 1293.

Here, the lower court properly denied appellant’s request for a Sexton charge. The justification for a Sexton charge is that because of the absence of any pre-trial identification, the suggestiveness of the in-court identification becomes overwhelming and must be tempered with a cautionary instruction. In Sexton, the sole evidence linking the defendant to the crime was the in-court identification testimony of two witnesses. See id., 485 Pa. at 25, 400 A.2d 1293. In the instant case, however, after independently viewing a pre-trial photographic array, each of the six victims identified appellant. See N.T. October 8, 1987 at 188-89. The pre-trial photographic identification presented an opportunity for the victims to view appellant in an objective setting outside of the courtroom. Clearly, the circumstances that existed in Sexton were not present in this case and a Sexton charge would have been inappropriate. Accordingly, because there was a pre-trial identification, the victim’s in-court identification of appellant had an independent basis and was not unduly suggestive. See Commonwealth v. Butler, 354 Pa.Super. 533, 543-44, 512 A.2d 667, 673 (1986) (presence of other identification evidence negated need for Sexton charge). We, therefore, conclude that lower court did not abuse its discretion in denying appellant’s request for a Sexton charge.

Finally, appellant contends that the sentencing court abused its discretion by imposing an excessive sentence. This claim is waived. To preserve a sentencing claim challenging the discretionary aspects of sentencing for our review, an appellant must comply with the requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). In Commonwealth v. Krum, 367 Pa.Super. 511, 520, 533 A.2d 134, 135 (1987), this Court, sitting en banc, held that an appellant’s failure to comply with the requirements of Tuladziecki and Pa.R.A.P. 2119(f), if not objected to by the appellee, is a waivable procedural violation. Id., 367 Pa.Superior Ct. at 520, 533 A.2d at 138.

Here, appellant has failed to comply with Rule 2119(f) and the requirements of Tuladziecki by not filing a statement of reasons for allowance of appeal setting forth his sentencing claim. The Commonwealth has objected to this defect in appellant’s brief. See Brief for Appellee at 12. Accordingly, because appellant failed to comply with Rule 2119(f) and Tuladziecki, and because the Commonwealth has objected, appellant’s sentencing claim is waived. See Commonwealth v. Krum, 367 Pa.Super. at 520, 533 A.2d at 135.

For the reasons set forth above, we affirm the judgment of sentence

JUDGMENT AFFIRMED.