author: CERCONE, Judge:

text:
    604 A.2d 1075
    Candace KANESKI v. William KANESKI, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 11, 1991.
    Filed March 16, 1992.

      Chris F. Gillotti, Pittsburgh, for appellant.
    Alfred L. Steff, Jr., Beaver, for appellee.

      Before ROWLEY, President Judge, and KELLY and CERCONE, JJ.
   CERCONE, Judge:

This appeal is from an order of custody of the Court of Common Pleas of Beaver County. We affirm.

Appellant is the father and appellee the mother of two minor children. In 1986, after the parties separated, they entered into an agreement for custody of the children which provided for primary physical custody to the mother and partial custody to the father. Under the schedule to which the parties agreed, appellant had physical custody of the children every other weekend from Friday evening to Sunday evening, every other Wednesday evening, alternating holidays, three weeks during the summer, and every Father’s Day. The agreement also provided for appellant to have telephone communication with the children between 5:30 p.m. and 8:30 p.m. every day. In 1989, appellant sought modification of the consent order. Under an order entered on May 22, 1989, the lower court extended appellant’s weekend partial custody through Monday morning and also awarded him partial custody every Wednesday evening rather than every other Wednesday. On July 5, 1990, appellant again filed a complaint for modification of custody, in which he requested primary physical custody of the children.

Both parties remarried after the divorce. The parties’ two children currently live with appellee and her new husband during the periods of mother’s physical custody. Appellant and his new wife live with the two children of the new wife’s former marriage. Appellee’s new husband, Dennis Lynch, was laid off from his job as a consulting nuclear engineer in Beaver County in 1989, after construction was completed on Duquesne Light Company’s Beaver Valley nuclear power plant. After six months of unemployment, Mr. Lynch was offered a similar job at a nuclear power station in Rochester, New York, Mr. Lynch decided to accept the job which is temporary in nature. He has, however, also been offered a permanent position, which, at the time of the lower court’s decision in this custody matter, he had not yet accepted. Based on these circumstances, appellee and Mr. Lynch sold their home in Beaver County and purchased a home in Webster, New York, in October, 1990. Appellee gave appellant notice of her intent to move on September 14, 1990. Appellant then filed a petition for special relief requesting an order enjoining appellee from removing the children from Beaver County pending resolution of the complaint he had filed in July, 1990 for modification of custody. The lower court denied the petition.

Appellant appealed the order denying his petition for special relief to the Superior Court, and requested an injunction prohibiting appellee from moving the children from Beaver County. On October 17, 1990, the Superior Court granted appellant’s petition for injunction and apparently directed the lower court “to expedite psychological evaluations and to conduct a preliminary hearing to ascertain the reasons for mother’s desire to move to New York.” (Opinion of April 17, 1991, Kunselman, J., at 11).

Pursuant to this court’s order, Gerard N. Massaro, Ph.D., performed an evaluation of the parties and the children. The lower court conducted a hearing on the matter on March 4, 5, and 15, 1991. Testimony was taken from the parties, the children, Dr. Massaro, and others. After the hearing, the lower court entered an order deciding the custody dispute as follows: Legal custody of the minors was awarded to both parties equally. The lower court granted physical custody to appellee, mother, with partial physical custody to appellant. The court order permitted mother to exercise her physical custody of the children in Webster, New York.

The schedule of appellant’s partial physical custody, as determined by the lower court, was as follows: one weekend each month in Beaver County, and one weekend each month in Webster, New York, with appellant to provide appellee forty-eight hours notice of his intent to exercise his partial custody right in New York. Appellant was also awarded one day of partial custody during any weekend in which appellee was present in Beaver County for the purpose of visiting relatives. The lower court also awarded appellant one-half of the time the children are in Beaver County with appellee for the purpose of appellee’s participation in court-mandated counseling sessions. The custody order also provided for apportionment of the children’s vacation and holiday time. With certain exceptions, appellee was given the responsibility for transporting the children to and from Beaver County for the purpose of exercising the awards. The lower court also ordered that both parties undergo counseling to help them lessen the conflicts between them and “to improve their ability to communicate with each other in matters regarding their children.” The court ordered that the counseling occur in southwestern Pennsylvania. Finally, the lower court provided that in the event the parties complied with the conditions set forth in the order of custody, it [the court] would consider increasing appellant’s periods of partial custody and relaxing or eliminating other conditions, including the requirement of counseling and the expense of transporting the children.

The lower court entered the foregoing order on April 17, 1991. Appellant’s appeal of the order was timely. On appeal, appellant raises the following issues: (1) whether the lower court erred in denying his request for modification of the existing custody order, and in permitting appellee to relocate and remove the children from Pennsylvania; and (2) whether the lower court erred in requiring father to exercise one of his monthly partial custody visits in New York state. Our scope of review of an order of child custody is as follows:

The scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it____ However, this broad scope of review does not vest in the reviewing court the duly or the privilege of making its own independent determination— Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.

McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992) (citations omitted).

Appellant first argues, citing Gruber v. Gruber, 400 Pa.Super. 174, 583 A.2d 434 (1990), that the lower court erred in permitting the appellee to relocate to New York with the children. He alleges that there will be no distinct and separate advantages as defined in Gruber to the children from the move, and that in fact, substantial negative and detrimental effects will flow from the relocation. Appellant lists as detrimental effects of the move the loss of extended family, schools in which the children had done well, friends, and accessibility to the father.

In Gruber, the court was faced with deciding the issue of whether the appellant, in that case the mother, should be permitted to move from the jurisdiction with the children, retaining her primary physical custody of them. The mother, who had custody of the parties’ three pre-school age children, one of them an infant born after the parties’ separation, wished to move with the children to Illinois, to reside with her brother and sister-in-law, who had offered her and the children a home until the mother was able to become self-sufficient. The brother residing in Illinois was the relative of appellant’s who was in closest geographic proximity to Pennsylvania, and the mother had no friends in the area of Pennsylvania where she was residing. Id., 400 Pa.Superior Ct. at 178, 583 A.2d at 435-36. The lower court ruled that the children were not to be removed from its jurisdiction, and if the mother moved from Pennsylvania, the children were to remain in the legal and primary custody of the father during the school year and with the mother during the months of June, July, and August. Id., 400 Pa.Superior Ct. at 180, 583 A.2d at 437.

On appeal, the Superior Court reversed. The court held that in order to justify a relocation of the children by the custodial parent, the custodial parent must demonstrate (1) that the move is likely to significantly improve the quality of life for the parent and the children; (2) that the move is not motivated simply by a desire to frustrate the visitation rights of the non-custodial parent or to impede the development of a healthy relationship between the child and the non-custodial parent; and (3) the feasibility of creating substitute visitation arrangements to ensure a continuing, meaningful relationship between the children and the noncustodial parent. Id., 400 Pa.Superior Ct. at 184-85, 583 A.2d at 440. The court emphasized that in determining the best interests of the child in the post-divorce situation, the focus must be mainly on the primary custodial family. Id., 400 Pa.Superior Ct. at 182-83, 583 A.2d at 438.

It is in that family that the day-to-day routine and the day-to-day emotional interaction between parent and child are established. These myriad and ordinary contacts forge the child’s character, psychological health, and value system. While the family of the non-custodial parent is important to the child, the nature of that relationship is necessarily different and less intense and not as formative and influential as the other.

Id. The court also recognized that “in every relocation dispute the following interests must be accommodated as nearly as possible:”

the custodial parent’s desire to exercise autonomy over the basic decisions that will directly affect his or her life and that of the children; a child’s strong interest in maintaining and developing a meaningful relationship with the non-custodial parent; the interest of the noncustodial parent in sharing in the love and rearing of his or her children; and, finally, the state’s interest in protecting the best interests of the children.

Id., 400 Pa.Superior Ct. at 184, 583 A.2d at 438-49.

Appellant’s argument that the move would not benefit the children misinterprets the holding of Gruber. In Gruber, the court emphasized the well-being of the custodial family and held that “when the move will significantly improve the general quality of life for the custodial parent, indirect benefits flow to the children with whom they reside.” Id., 400 Pa.Superior Ct. at 185, 583 A.2d at 439. Here, the record is convincing that the move would benefit appellee. Her husband has been offered substantial employment on a permanent basis in New York. The benefit to appellee, her husband, and the children of accepting such an offer is obvious in terms of the economic security it would provide. A family living with the security of permanent financial resources is certainly a family with a significantly improved quality of life over one which lives under the clouds of unemployment, temporary employment, lack of health insurance, etc. As Gruber holds, it is certain that the substantial benefits of such employment will flow indirectly to the children who reside with Mr. Lynch and his wife, their mother. Thus, the lower court did not err in finding the first criterion of Gruber satisfied. We do not accept appellant’s argument that there must be demonstrated a separate and distinct non-economic benefit to satisfy the first criterion of Gruber. While the Gruber court held that such other benefits must not be ignored or overlooked, it did not require that a move which would significantly improve the quality of life on an economic basis be precluded because other less tangible factors were lacking.

Appellant next contends that appellee failed to prove the second criterion of Gruber because he asserts that her motive for moving was suspect. As we previously indicated, the second criterion of Gruber is that “the court must establish the integrity of the motives of both the custodial and the non-custodial parent in either seeking the move or seeking to prevent it.” Id., 400 Pa.Superior Ct. at 185, 583 A.2d at 439. The Gruber court further explained this criterion as follows:

The court must assure itself that the move is not motivated simply by a desire to frustrate the visitation rights of the non-custodial parent or to impede the development of a healthy, loving relationship between the child and the non-custodial parent. An aspect of this determination is the degree to which the court can be confident that the custodial spouse will comply cooperatively with alternate visitation arrangements which the move may necessitate. Likewise, the court must consider the motives of the noncustodial parent in resisting relocation and decide whether the resistance is inspired by motives other than a legitimate desire to continue and deepen the parent-child relationship.

Id.

Appellant contends that mother’s initial motivation for relocation may have been to attempt to frustrate his desire for increased custody of the children. Appellant points out that in July, 1990, he had filed a petition for modification of custody, in which he sought a shared custody arrangement. He further asserts that when appellee and Mr. Lynch decided to accept the offer of employment in New York state, the position available was only a temporary one, and there was no offer of permanent employment. From this, he concludes that appellee may initially have been motivated in her decision to move from a desire to frustrate him in his custody rights. Appellant also contends that the lower court erred when it stated that it was his “burden” to show that his motive in seeking to prevent the re-location was inspired by nothing other than a “legitimate desire to continue and deepen his relationship with the children.”

The lower court found in regard to this issue that the mother’s motive for moving was related “solely to her husband’s employment and not from a desire to frustrate the father’s contact with the children or to impede the development of a healthy relationship between him and the children.” The lower court indicated that it accepted as true the testimony of appellant and her husband that his employment was the sole motive of the move and that they would cooperate with the alternative partial custody arrangements which the move would require. With regard to appellant’s motives in resisting the move, the lower court cited evidence which led it to conclude that appellant is resisting the relocation not solely because he wants to further and deepen his relationship with his children, but also because he wants to “win one in the war with the mother.” (Opinion of April 17, 1991, Kunselman, J., at 25-27).

We have reviewed the record and find that there is ample support therein for the trial court’s conclusion that appellee’s motivation for the move is not to frustrate appellant’s custody rights, but is instead a desire to secure permanent substantial employment for the family unit consisting of appellee, her husband, Mr. Lynch, and the children who are the subject of this dispute. Appellant’s contention regarding his perception of appellee’s initial motivation regarding the move is unsupported and irrelevant in any case. It is not appellee’s initial motivation, but her motivation at the time of the lower court hearing with which the lower court was properly concerned. At the hearing, both appellee and Mr. Lynch testified extensively concerning the factors surrounding their decision to move. It was not an abuse of discretion for the lower court to conclude from that testimony that appellee was motivated by her desire and that of her husband that he secure a reasonable offer of employment in order to support the family unit of which they are a part.

As to appellant’s contention that he has no “burden” in regard to the second factor of Gruber, we note that the Gruber court specifically stated that “the non-custodial parent must show that resistance to the move stems from concern for the children and his or her relationship to them.” Gruber v. Gruber, 400 Pa.Super. at 186, 583 A.2d at 440. Thus, appellant did have a “burden” to sustain in the lower court with regard to proof of his motivation in resisting the relocation. The lower court found that appellant’s motivation consisted at least in part of a desire to succeed against appellee. In support of this conclusion, the lower court cited appellant’s complaints that he had been unable to obtain medical and educational information from appellee, although, according to the lower court, that information had in fact been provided to him. The lower court also cited evidence that prior to and after the parties’ separation, appellant frequently did not actually spend time with the children, but instead occupied himself with his work, even during his periods of partial custody.

We do not find the lower court’s conclusions in this regard unreasonable. As we have previously indicated, an appellate court, reviewing a lower court’s order of custody, may determine whether the trial court’s factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable and thus constitute a gross abuse of discretion. McMillen v. McMillen, supra, 529 Pa. at---, 602 A.2d at 847. The factual findings on which the lower court based its conclusion concerning appellant’s motive in resisting the relocation have support in the record. The lower court’s conclusion, based on those factual findings, is not unreasonable. Certainly, there is ample evidence of record supporting the existence of a substantial conflict between the parties. Considering that evidence along with the evidence cited by the lower court, we cannot say that the lower court committed a “gross abuse of discretion” in its determination that appellant’s motive for resisting the relocation was motivated at least in part by a desire to prevail in the conflict with the children’s mother.

Even if we were to find that the lower court erred in this conclusion, it would not alter our finding that appellant has satisfied the second criterion established in Gruber for assessing the feasibility of a relocation. Gruber clearly provides that the focus in a relocation case is on the custodial family. Gruber v. Gruber, 400 Pa.Super. at 182-83, 583 A.2d at 438. Since appellee has satisfactorily established that her own motivation in desiring to effectuate the relocation is not suspect, the second factor of Gruber has been met. We therefore turn to the third factor set forth in the Gruber case, i.e., the feasibility of creating substitute visitation arrangements to ensure a continuing, meaningful relationship between the children and the non-custodial parent. Id., 400 Pa.Superior Ct. at 186, 583 A.2d at 440. In discussing this factor, the Gruber court noted:

We recognize that, in many cases, former weekly visitation may have to give way to an altered schedule which allows for less frequent but more extended contact between parent and child. However, the necessity of shifting visitation arrangements to account for geographical distances will not defeat a move which has been shown to offer real advantages to the custodial parent and the children.

Id., 400 Pa.Superior Ct. at 185, 583 A.2d at 439.

With regard to this factor, appellant contends that adequate visitation arrangements are not available. He argues that the evidence at trial did not support a finding that appellee is willing to cooperate and sacrifice in order to provide continuing, ongoing contact between appellant and the children. Appellant then cites various incidents from the past to support his argument that since appellee did not cooperate in granting him access to the children when they lived only a few miles apart, she surely will not do so when living a distance of three hundred miles away.

On this issue, the lower court concluded that the partial custody schedule could be adjusted to accommodate appellant. The trial judge cited the feasibility of travel between Webster, New York and Beaver County as well as the “ability and willingness” of appellee and her husband “to cooperate and sacrifice in order to provide continuing, ongoing contact between [appellant] and the children.” (Opinion of April 17, 1991, at 28). The lower court also reasoned that contact could be maintained because mother would be visiting with relatives in Beaver County on a regular basis and would also have to return for counseling. In addition, the court noted that it would be appropriate for appellant to travel to New York on occasion.

The order of custody eliminates appellant's partial custody of the children on Wednesday evenings. However, it continues to provide appellant with partial custody at least two weekends every month. In addition, appellant is permitted custody of the children for at least one day of any weekend when appellee is in Beaver County for the purpose of visiting relatives, and for one-half the time of which appellee is in that county for counseling purposes. The order also provides appellant with partial custody during one-half of every recess from school, three-fourths of every summer vacation, and alternating holiday weekends. There is also provision in the order for regular telephone contact. The record supports the fact that appellee and her new husband have indicated their willingness to cooperate to ensure appellant’s continued access to the children. Apparently, the lower court found those statements to be believable and we will not interfere with the lower court’s determination of credibility. Although the substitute visitation fashioned by the lower court is not identical to the previous partial custody arrangement, we think the schedule constitutes a “realistic, substitute visitation [arrangement] which will adequately foster an ongoing relationship between the child[ren] and the non-custodial parent.” Gruber v. Gruber, 400 Pa.Super. at 185, 583 A.2d at 439. It has already been demonstrated that the move to Webster, New York will “offer real advantages to the custodial parent and the children.” Id. Therefore, it becomes necessary to “shift” visitation arrangements so long as reasonable substitute visitation is available. Id. The lower court has fashioned a reasonable substitute schedule of partial custody. Since the move also offers real advantages to the custodial parent and the children, the third requirement of Gruber has been met. As the Gruber court stated,

The court should not insist that the advantages of the move be sacrificed and the opportunity for a better and more comfortable life style for the [custodial parent] and children be forfeited solely to maintain weekly visitation by the [non-custodial parent] where reasonable alternative visitation is available and where the advantages of the move are substantial.

Id., 400 Pa.Superior Ct. at 186, 583 A.2d at 439-40 (citing D’Onofrio v. D’Onofrio, 144 N.J.Super. 200, 204-06, 365 A.2d 27, 29-30 (Ch. Div.), aff'd, 144 N.J.Super. 352, 365 A.2d 716 (App.Div.1976)).

Appellant next contends that the lower court erred in determining that one of his monthly weekends of partial custody must take place in New York. Appellant cites no authority in this regard and indicates that this matter is undergoing negotiation between the parties. While the lower court’s opinion does not explicitly address this issue, we do not think it was unreasonable for the court to fashion an order which would require the children to travel to Beaver County from New York just one time per month rather than two. In awarding appellant partial custody in New York one weekend per month, the lower court afforded appellant the opportunity to continue the same amount of weekend partial custody as he was permitted prior to the move, while also giving him the chance to acquaint himself with the children’s new surroundings. We do not see it as unreasonable or an abuse of discretion for the lower court to place the burden of travel upon appellant rather than on the children for one of appellant’s two monthly weekends of partial custody.

For all of the above reasons, the order of April 17,1991 is affirmed.

Order affirmed.

      . The lower court indicated that Mr. Lynch was unwilling to accept the position until he learned the outcome of the instant custody litigation.

      . We have been unable to locate a copy of the order of the Superior Court in the reproduced record certified to us on appeal.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    604 A.2d 1082
    PENNFIELD CORPORATION v. MEADOW VALLEY ELECTRIC, INC. v. S.A. CLARK & ASSOCIATES, Security Systems Unlimited, Lin M. Allis, Joel Habeggar t/d/b/a Mountain View Farms, Mel Huber, Ray A. Huber, Narragansett Wire Company a/k/a Narragansett Cable Company, York Electrical Supply Co., t/d/b/a YESCO, Tri-State Electrical Supply Co., Inc., F.L. Industries, Inc., Blackburn Division t/d/b/a F.L. Blackburn, Harrisburg Electrical Supply Co. t/d/b/a HESCO. Appeal of MEADOW VALLEY ELECTRIC, INC.
    Superior Court of Pennsylvania.
    Argued June 18, 1991.
    Filed March 17, 1992.

      Denise M. Bierly, State College, for appellant.
    Vanessa M. Nenni, Lehigh Valley, for York Elec., appellee.
    Before ROWLEY, President Judge, and CAVANAUGH and WIEAND, JJ.
   CAVANAUGH, Judge:

Appellant Meadow Valley Electric, Inc. (“appellant”), appeals from the December 13, 1990, order of the trial court sustaining preliminary objections in the nature of a demurrer filed by appellee York Electrical Supply Co., t/d/b/a YESCO (“appellee”). The appellant asserts novel arguments which we find to be pernicious to accepted rules of establishing causation and liability. In particular, appellant’s arguments would obviate the well-settled rule that “alternative liability” will not lie absent some sort of negligent conduct by the potential tortfeasors. It asks that we place the burden on potentially innocent defendants to disprove their culpability, and in the event they cannot, to apportion liability between them. We emphatically reject this approach. We affirm the trial court’s order sustaining appellee’s preliminary objections, but determine that the court erred when it did not allow the complaint to be amended.

This action has its origin in the untimely demise of 1,537 swine, who suffocated when an electrically operated ventilation system in their abode failed. The swine were housed at Mountain View Farms, Berks County, Pennsylvania, and were owned by Pennfield Corporation, the plaintiff in the present action. Pennfield Corporation brought an action against the appellant, the corporation which allegedly performed repair and maintenance services on the electrical equipment at Mountain View Farms. The Pennfield complaint alleged that a defective electrical system installed by the appellant caused the ventilation system to fail, thus resulting in the suffocation of the swine.

Appellant in turn filed a complaint to join numerous additional defendants including appellee. Appellant’s joinder complaint alleged that the ventilation system failed and that the cause of the failure was defective electrical cable purchased either from appellee or from another distributor, Tri-State Electrical Supply Company (“Tri-State”). Appellant claimed that appellee was liable to the plaintiff on theories of strict liability, negligence, and breach of warranties.

Appellee responded to appellant’s joinder complaint with preliminary objections in the nature of a demurrer. The gravamen of appellee’s objections is that to make out a cause of action in strict liability, negligence, or breach of warranties Meadow Valley has to specifically identify which defendant supplied the defective cable. Appellee notes specifically that appellant in the Strict Liability Count of its Complaint averred the following in paragraphs 115 and 116:

115. The electrical cable installed at Mountain View was bought either from YESCO or Tri-State.
116. The electrical cable bought by Meadow Valley from YESCO and Tri-State cannot be identified or distinguished.

Thus, appellee argued that appellant’s own admission indicated that a cause of action could not be stated not only for the Strict Liability Count, but the other Counts as well. Appellee asserted that an element of all three counts was that the product could not be identified. In an order entered December 13, 1990, the trial court sustained appellee’s preliminary objections, dismissed with prejudice paragraphs 111-133 of the joinder complaint (i.e., the paragraphs setting forth appellant’s claims against appellee), and dismissed appellee from the case. This appeal followed.

Our scope of review of an order granting preliminary objections in the nature of a demurrer is as follows:

When preliminary objections in the nature of a demurrer are filed, we must accept as true all the well-pleaded material facts set forth in the complaint and all reasonable inferences deducible from those facts. Accepting these facts and inferences, we then determine whether the pleader has failed to state a claim for which relief may be granted, and we will affirm the grant of a demurrer only if there is certainty that no recovery is possible. All doubts are resolved in favor of the pleader.

Field v. Philadelphia Electric Company, 388 Pa.Super. 400, 405, 565 A.2d 1170, 1172 (1989). (Citations and footnote omitted.)

Although the appellant includes four issues in the statement of questions involved, there exists overlap in two issues and thus the questions for our review are essentially three: (1) whether the “alternative liability” theory of Restatement (Second) of Torts, § 433(B)(3) and Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948) merits that we reverse the trial court; (2) whether “alternative liability” will lie where a plaintiff can identify a defective product, all possible defendants have been joined, and inspection of the product would not have uncovered any distinguishable features regarding the product; (3) whether the trial court should have permitted appellant to amend the defective complaint. Although we hold that the the appellant’s notions of alternative liability are totally meritless, we believe that the trial court should have allowed appellant to amend its complaint.

We address the two issues dealing with “alternative liability” first. We submit that in attempting to avoid the demurrer, appellant takes a novel, albeit a not very successful, approach. Appellant assumes that appellee is correct when it makes the bald assertion that, at the demurrer stage, the general rule is that a party has to specifically identify the manufacturer to sustain a demurrer. Appellant’s Brief at 7. The appellant, however, argues that there exists a general exception to what it calls the “identification rule,” called the “alternative liability” exception. According to appellant, the “alternative liability exception to the identification rule” places the burden on the possible tortfeasors under certain circumstances to prove they are not culpable. As noted supra, appellant proffers two arguments as to why “alternative liability” should apply in the case.

The first argument is based on what appellant deems the “alternative liability” theory of Restatement (Second) of Torts, § 433(B)(3) and Summers v. Tice, supra. Section 433(B) of the Restatement (Second) of Torts states in its entirety:

Burden of Proof
(1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff.
(2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.
(3) Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each actor to prove that he has not caused the harm.

The general rule, as noted in subsection (1), is that the burden of proof is upon the plaintiff to show that the tortious conduct of the defendant has caused the particular harm to the plaintiff. The Restatement, however, allows of two exceptions in subsections (2) and (3). Appellant claims the exception articulated in subsection (3) applies. Appellant would have us believe that under subsection (3), because it cannot prove that either YESCO or Tri-State harmed it, the burden is on YESCO or Tri-State to prove that they were not the tortfeasor. This is a mischaracterization of the law. The predicate for applying subsection (3) is that “the conduct of two or more actors is tortious.” Restatement (Second) of Torts, § 433(B)(3), supra. Subsection (3) is based on the rationale that “injustice [lies in] permitting proved wrongdoers, who among them have inflicted an injury upon the entirely innocent plaintiff, to escape liability merely because the nature of their conduct and the resulting harm has made it difficult or impossible to prove which of them has caused the harm.” Restatement (Second) of Torts, § 433B(3), Comment f. Here, the appellant has not alleged that the conduct of two or more actors is tortious. Rather, appellant asserts one actor may be tortious while admitting the other actor may not be tortious. It is quite obvious from the rule and the rationale that the burden of proof remains on the appellant, and subsection (3), supra, does not apply.

We note that Comment g to § 433(B)(3) states:

The rule stated in Subsection (3) applies only where it is proved that each of the two actors has acted tortiously, and that the harm has resulted from the conduct of some one of them. On these issues the plaintiff still has the burden of proof. The rule stated has no application to cases of alternative liability, where there is no proof that the conduct of more than one actor has been tortious at all. In such a case the plaintiff has the burden of proof as to the tortious conduct and as to the causal relationship.

(emphasis supplied.) It is also pertinent to note that Illustration 10 to § 433(B)(3) presents a hypothetical analogous to this one:

Over a period of three years A successively stores his furniture in warehouses operated by B, C, and D. At the end of that time A finds that his piano has been damaged by a large dent in one corner. The nature of the dent indicates that it was caused by careless handling on a single occasion. A has the burden of proving whether the dent was caused by the negligence of B, C, or D. (emphasis supplied.)

This case is also a far cry from the seminal case in this area, the well-known hunting case of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). In Summers v. Tice, three persons were hunting fowl when suddenly a bird flew from the brush. Notwithstanding that one of the hunters was in close proximity to the brush, the other two hunters simultaneously fired their weapons, accidentally wounding the hunter. In such circumstances, it was impossible for the injured hunter to determine which party caused the injury. The California Supreme Court felt it was appropriate to shift the burden to the two careless hunters to prove which hunter fired the shot. The court emphasized that both parties were wrongdoers who had brought about a situation where the negligence of one of them had injured their companion. Either of the two was in a better position to know which of them caused the injury, while the nature of their conduct made it difficult or impossible for the injured party to determine who was liable.

Appellant implicitly admits in its Strict Liability Count that either YESCO or Tri-State bears no culpability whatsoever in bringing about the suffocation. In fact, it is easy to discern from appellant’s complaint that it is not sure that a defective cable even caused the suffocation. Thus, unlike in Summers v. Tice or the usual alternative liability theory case, appellant cannot with certainty state that YESCO and Tri-State are among the tortfeasors.

The second “alternative liability” argument proffered by appellant is based on the Market Share Liability theory first promulgated in the California Supreme Court case Sindell v. Abbott Laboratories, et al., 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, cert, denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980). Therein, the appellant instituted a suit for personal injuries allegedly caused by her mother’s use of the drug diethylstilbestrol (“DES”) during pregnancy. The pharmaceutical companies which manufactured the drug used a mutually-agreed upon formula. Appellant admitted that she could not identify the manufacturer of the DES her mother consumed.

The California Supreme Court held that a defendant could be liable to this injured plaintiff, notwithstanding that its product was not involved in the accident. The Court stressed two reasons for deviating from the settled rule that manufacturers are only responsible for damages caused by their defective product. First, it was impossible to trace the origin of the product because of the fungible nature of the good. Second, an extensive amount of time had passed between the use of the drug and the manifestation of the plaintiff’s injuries. The Court declared that liability would be apportioned according to a defendant’s market share, unless a defendant could demonstrate it did not manufacture the DES consumed by the plaintiff’s mother.

Although appellant’s brief could be clearer, the tenor of appellant’s argument is that Pennsylvania has recognized the new ground broken in Sindell. Appellant stresses that in Erlich v. Abbott Laboratories, et al, 5 Phila. 249 (1981), a trial court in this jurisdiction relied on the reasoning in Sindell to apply the Market Share Liability Theory to a DES case. Appellant claims that one can discern from this and similar cases that Market Share Liability will lie where: (1) all possible tortfeasors have been joined; (2) all conduct is similar; and (3) an inspection of the product would not have uncovered any distinguishable features regarding the conduct. Appellant’s Brief at 11. It is simply not true that Market Share Liability will exist in these circumstances. Sindell and Erlich reflected a similar concern to that expressed in Summers v. Tice: it is not unfair to shift the burden to the defendant pharmaceutical companies where their tortious conduct in marketing an unidentifiable unsafe medicine made an injured party unable to prove eausation. It is an essential element in Market Share Liability cases that the possible tortfeasors are all perpetrators of negligent conduct. Even if appellant had alleged the cables were identical, it would still be incumbent on the appellant to prove which defendant was responsible for the defective cable because either YESCO or Tri-State is an innocent party. We should not forget the Market Share Liability theory was created to deal with the horrific problem caused by DES cases, and the Market Share Liability Theory is a very narrow exception to the general rule that a plaintiff must show causation. See, Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1284 (1978); Restatement (Second) of Torts, § 633(B)(1).

We find persuasive reasoning in a federal decision applying Pennsylvania law, Long v. Krueger, Inc., 686 F.Supp. 514 (E.D.Pa.1988), which appellant, surprisingly, claims to be in its favor. In Long, the plaintiff was a postal worker hurt while on the job after falling off a defective stool. The metal ring, which is normally positioned around the bottom of stools of that nature, was missing. The Postal Service had bought stools from five different manufacturers. The defendant joined only two of those manufacturers, and asserted it was incumbent on them to prove that they were not culpable. The district court noted that there is a distinction between cases in which defendants are sued who market an obviously defective drug like DES to consumers where it is difficult to determine the actual tortfeasor because of the way the generic drug is marketed and the run-of-the-mill tort case.

In the case before me, I am not faced with a highly complex chemical product such as a drug with no means of identification. I am dealing with a broken stool which, if it was basically like one of the stools described in the plaintiffs affidavit, bore the name of its manufacturer. The stool allegedly collapsed because it was defective, which would make it different from the non-defective stools of other manufacturers. Without the alleged defect in the stool, there would be no need for a warning concerning its use when broken. Plaintiff has not pointed to any facts which establish that all manufacturers’ stools were similarly defective and in need of warnings. Here only one defendant acted tortiously, unlike the cases involving ... defective pills in which there is evidence that everyone acted tortiously in a simultaneous and similar manner, (emphasis supplied.)

Id. at 519. We hold that the Market Share Liability theory is not applicable to the circumstances at hand as there is no allegation in the Complaint that appellee and Tri-State were similarly tortious.

Before addressing whether the appellant’s complaint should have been allowed to be amended, we feel it is important to comment on why the appellant’s theories are pernicious. The appellant’s theories would potentially open a Pandora’s box of wide-open liability, where an innocent party could be found liable to an injured party just because he cannot disprove that he caused the accident. It is crucial to remember that the rules of law articulated in Summers v. Tice and Sindell not only shift the burden to show causation, but assign liability to all the possible tortfeasors when they cannot show one of their number caused the injury. If a tortious actor is not able to show the other actor(s) were the actual tortfeasor(s) under the Summers v. Tice rule, he would be jointly liable with the other actors. See, Sommers v. Hessler, 227 Pa.Super. 41, 46, 323 A.2d 17, 20 (1974). Moreover, under the Market Share Liability theory, defendants who cannot prove their innocence are liable to the plaintiff for an amount proportionate to the defendant’s respective market share of all sales. See, Sindell, supra. Thus, a party that has committed no wrongdoing under the appellant’s analysis could potentially be held liable for damages. It is incumbent, therefore, that we do not extend Summers v. Tice, § 433(B)(3), or the Market Share Liability theory to the present fact scenario. Our system of jurisprudence rightly balks at assigning liability to a innocent party. Our reluctance has been overcome only when compelling circumstances demand that we deviate from the rule that a cause of action must fail unless defendant’s conduct is shown to have been the proximate cause of plaintiff’s injury. See, Summers v. Tice, Sindell, supra.

We feel the facts of this case highlight the strength of the general rule. We do not have in this case an unfortunate victim of conduct caused by one of several careless parties who know the perpetrator of the negligence, like in Summers, or a consumer buying an unidentifiable medicine (DES) from a corporation. Rather, appellant is a corporation which purchased the allegedly defective cable directly from either of two identifiable distributors and which itself performed the repair and maintenance on the farm’s electrical system. We submit that as against the appellant and the two cable distributors, the appellant is in at least equal position to know from which company it bought the cable. This is especially true because appellant must concede by implication that at this point in time either YESCO or TriState was entirely blameless.

We address now the appellant’s final argument, that the trial court should have allowed the complaint to be amended. Appellant asserts that it can amend his complaint to make alternative liability available. We disagree, for reasons already stated. Notwithstanding, we believe appellant can amend its complaint in other ways to state a viable cause of action.

We declared in Hoza v. Hoza, 302 Pa.Super. 72, 78, 448 A.2d 100, 103 (1982):

We have on numerous occasions found that the right to amend a pleading should not be withheld where there is a reasonable possibility that amendment can be accomplished. In Harkins v. Zamichieli, 266 Pa.Super. 401, 405 A.2d 495, 499 (1979), we concluded that even when a complaint is deficient, amendment and not dismissal, is the appropriate remedy. If a demurrer is sustained, ‘the right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully.’ Otto v. American Mut. Ins. Co., 482 Pa. 202, 393 A.2d 450 (1978), vacating 241 Pa.Super. 423, 361 A.2d 815. See also, [sic] 2 Goodrich Amram, Section 1028(e).

Courts of this Commonwealth have only refused to reverse a trial judge's denial of amendment in rather limited circumstances. Our cases have affirmed a trial judge’s denial of amendment only where the plaintiff has repeatedly failed to successfully amend the complaint or is unable to do so. See, e.g., Kaufman Hotel & Restaurant Company v. Thomas, 411 Pa. 87, 190 A.2d 434 (1963) (counsel suggested amendments at oral argument which were still legally invalid); Cucinotti v. Ortmann, 399 Pa. 26, 159 A.2d 216 (1960) (plaintiff twice failed to plead facts necessary for assault even after court advised why complaint was defective); Framlau Corp. v. County of Delaware, 223 Pa.Super. 272, 299 A.2d 335 (1973) (after two pleadings plaintiff could not suggest facts which would prove a breach of contract). Apparently, this would be the first time appellant has requested to amend its complaint.

The trial court explained that it refused to allow appellant to amend the complaint because it was concerned that the amended complaint would necessarily have to contradict the original complaint’s averments. However, the trial court has not presented us with a case that stands for this proposition. As long as the appellant can amend the complaint to make it legally valid, the tenor of our law is to allow the defendant that opportunity. We have traditionally not worried if pleadings were in the alternative or even contradicted each other. Pa.R.C.P 1020(c); Baron v. Bernstein, 175 Pa.Super. 608, 106 A.2d 668 (1954). Moreover, this court has not shown reluctance to find a trial court abused its discretion where there was a good chance the complaint could be amended successfully. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 502, 450 A.2d 36, 39 (1982); Hoza, supra, 302 Pa.Super. at 79, 448 A.2d at 104. It was error for the trial court not to allow amendment in the case sub judice.

The test for surviving a demurrer is “whether it is clear and free from doubt from the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right of relief.” Firing v. Kephart, 466 Pa. 560, 563-564, 353 A.2d 833, 835 (1976); Cooley v. East Norriton Twp., 78 Pa.Cmwlth. 11, n. 3, 466 A.2d 765, 767 n. 3 (1983). All appellant has to do is to plead facts that, if true, would be legally sufficient to gain him relief from YESCO. It is apparent from appellant’s complaint that the genesis of legally sufficient facts is present. Appellant alleges that appellee sold it a cable, the cable was defective, and the cable’s defect caused economic damage to appellant’s property. These alleged facts are the seeds for several causes of action.

It is irrelevant at the demurrer stage of our jurisprudence whether appellant alleges precisely the same facts against both appellee and Tri-State. Appellant’s complaint can allege, at the same time, in the alternative, that it was a cable distributed by appellee that was defective and that it was a cable distributed by Tri-State that was defective. Cf. Pa.R.C.P. 1020(c); Baron, supra. Appellant should then have the opportunity to utilize discovery to pin-point which company distributed the allegedly defective cable. However, if after an opportunity to submit all the relevant evidence, the probabilities are at best still evenly divided between the appellee and Tri-State as to causation, it would be the duty of the trial court to dismiss the complaint at an appropriate dispositional stage in the proceedings upon motion by either or both. See, e.g., note 15, supra. The trial court’s opinion evidences the mistaken belief, to which the appellant has obviously succumbed, that the general rule that a plaintiff has to establish causation requires the plaintiff to offer evidence before discovery and at the time of preliminary objections, which defendant caused the injury. Although the plaintiff will have to show causation at trial, § 433(B)(1), supra, alternative and even inconsistent facts, as long as they are legally sufficient, will survive preliminary objections in the nature of a demurrer.

We affirm the trial court’s order as to the preliminary objections, but instruct the trial court to allow appellant the opportunity to amend its complaint.

Case remanded. Jurisdiction is relinquished.

      . There is disagreement in the briefs as to how many swine suffocated. The number used has been taken from the plaintiffs complaint and appears to be the number used in all documents other than appellant’s brief. The exact number is irrelevant to this appeal.

      . Pennfield Corporation is not participating in this appeal. -

      . Appellant alleged the same theories of liability against Tri-State as against appellee. Tri-State answered the complaint but did not file preliminary objections to Appellant's complaint as did the appellee.

      . We note in passing that the appellant incorporated by reference the averments in the Strict Liability Count, including paragraphs 115 and 116, into the Negligence and Breach of Warranty Counts. Otherwise, we would be constrained to consider the averments in 115 and 116 only in reference to the Strict Liability Count. See Pa.R.C.P. 1020(c).

      . We note that an order dismissing all counts against a defendant is final and appealable. Motheral v. Burkhart, 400 Pa.Super. 408, 415, 583 A.2d 1180, 1184 (1990) (en banc).

      . We note that although appellant appended to its brief a copy of a case thought important to appellant’s argument, it failed to append a copy of the trial court’s opinion to the brief. This is expressly violative of Pa.R.A.P. 2111(b). However, since appellant has enclosed a copy of the trial court opinion at the back of the reproduced record, our ability to conduct a meaningful review is not hindered.

      . Appellant seems to base its belief on our decision Cummins v. Firestone Tire and Rubber Co., 344 Pa.Super. 9, 18, 495 A.2d 963, 967 (1985). In Cummins, a multi-piece tire and rim assembly exploded as it was being inflated, injuring the plaintiff. The actual multi-piece assembly subsequently became irretrievably lost. Plaintiff, since the multi-piece assembly was lost, could not even identify the exact product in the assembly involved in the accident (and by implication the manufacturer or supplier of the assembly). However, plaintiff proceeded to file suit against numerous truck wheel rim manufacturers, manufacturers of trucks, and suppliers of truck and tire rims. We held that since the product could not identified, and there was no indication that a tortfeasor could be determined at trial with any accuracy, that it was appropriate to grant a demurrer as to the manufacturers and suppliers:
      [T]he fact remains that the offending product is unavailable for inspection, and therefore, appellant is precluded from identifying the manufacturer or supplier. This is not a defect which could be corrected by further discovery or by granting- appellant leave to amend his complaint, since opportunity to make the necessary identification has been irretrievably lost.

        Id, 344 Pa.Superior Ct. at 18, 495 A.2d at 968. This case is clearly distinguishable from the facts sub judice. Appellant has been able to specifically identify the potentially offending product to a defective cable. Moreover, as opposed to Cummins where the plaintiff had no clue as to the origins of the product, appellant here has narrowed the suppliers down to two. Although the facts of Cummins certainly indicated a demurrer was appropriate since no recovery would be possible, it is not apparent from the facts here that discovery would prove fruitless in determining the origin of the cable.

      . We have not been able to verify the existence of what appellant deems the "alternative liability exception to the identification rule.” Appellant seems to believe "alternative liability” is applicable every time an injured party can narrow the possible tortfeasors down to a limited number of parties who could have potentially caused the injury. As indicated infra, "alternative liability” has little to do with identifying a potentially defective product.

      . Appellant asserts in paragraph 115 of its Complaint that: "[t]he electrical cable installed at MOUNTAIN VIEW was bought from either YESCO or TRI-STATE." (caps appellant’s, emphasis ours)

      . See note 9, supra.

      . We have examined appellant’s argument that dicta in Long by "negative implication” supports its novel theory. Notwithstanding the weakness of an argument that claims the "negative implication" of dicta in a federal case is binding on our interpretation of state law, the appellant in any case has relied on an isolated excerpt which does not do justice to the Court’s holding.

      . We use "tortious” in the Restatement sense, which appears to be used generically as "similarly a wrongdoer” or "similarly careless.” It is obvious that in the Summers v. Tice or Sindell paradigms that one of the parties, though acting inappropriately, was not the legal cause of a tort to the particular plaintiff. Nevertheless, because that party committed conduct similar to the actual tortfeasor, he is considered "tortious”.

      . The apportionment of damages heightens why this rule could never be applicable to this situation. It makes little sense to hold an innocent defendant liable to a plaintiff. However, it makes no sense whatsoever to hold the innocent defendant liable to a plaintiff based on its market-share, which very well may exceed the culpable defendant’s market share.

      . We do not read Cummins, supra, to contradict this basic principle. Rather, as discussed in note 7 supra, the court in Cummins found that it was obvious from plaintiffs pleading that he would not be able to establish legally sufficient facts.

      . Appellant apparently feels that it has to allege some sort of “alternative liability" theory to survive a demurrer at this stage because it cannot determine whether YESCO or Tri-State supplied the allegedly defective cable. However, at this stage of the litigation, appellant only has to allege legally sufficient facts, even if it cannot prove them at this time.

      What appellant deems is “alternative liability” is a misnomer. Appellant seems to believe “alternative liability” is applicable every time an injured party can narrow the possible tortfeasors down to a limited number of parties who could have caused the injury. However, “[a] mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." Restatement (Second) of Torts, § 433(B)(1), Comment a. As explained supra, courts have only placed the burden on tortious defendants to absolve themselves of culpability. Thus, the so-called “alternative liability” rule is more appropriately called the "tortious party alternative liability" rule.

      . It is not apparent from the record whether appellant engaged in discovery to assist its effort of linking the allegedly defective cable to either appellee or Tri-State.


author: BECK, Judge:

text:
    604 A.2d 1090
    COMMONWEALTH of Pennsylvania v. Jason CULMER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1991.
    Filed March 18, 1992.

      John A. Ryan, Philadelphia, for appellant.
    George Leone, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   BECK, Judge:

Appellant Jason Culmer was convicted by a jury of aggravated assault and possession of an instrument of crime for shooting William Parker with a shotgun. He was sentenced to seven to twenty years for aggravated assault and a concurrent term of imprisonment for the weapons charge. We find no merit to this appeal and affirm the judgment of sentence.

The evidence upon which appellant was convicted established the following. The victim William Parker and his friends, Freda Murray, Dwayne Culbreth, and Culbreth’s girlfriend Kenya, were driving home from the movies and stopped to drop Kenya off at her home. While Culbreth walked Kenya to her door, Parker and the others remained with the car. Another car pulled up behind them and began harassing Parker and demanding that he move the car. As soon as Culbreth returned, Parker drove away but the second car followed. Finally, both cars stopped at the intersection of Gratz and Wingahoeking and Parker and the driver of the other car got out. As Parker and the other driver exchanged words, a crowd began to gather.

Moments later, from out of the crowd, a man approached Parker carrying a green plastic trash bag which concealed a sawed-off shotgun. The man was later identified as appellant, Jason Culmer. Appellant thrust the barrel of the gun against the side of Parker’s stomach and looked Parker in the face. At first Parker thought appellant was attempting to rob him. Appellant apparently pulled the trigger but the gun did not fire at that point and Parker heard only a “click”. Parker grabbed the barrel of the gun with both hands and shoved it away from him. He turned and ran a short distance up Gratz Street. As Parker turned to see if appellant was following him, he heard a loud boom and felt the pain of a shotgun wound in his arm and chest. Appellant was about fifteen feet away still holding the concealed weapon. After the shot was fired, appellant fled.

Culbreth, who was close-by and witnessed the entire event, raced over to Parker. The group rushed Parker to the hospital. Parker, although badly hurt, did not lose consciousness. The police were able to interview him and Culbreth almost immediately in order to obtain a description of the assailant. Both Parker and Culbreth recognized appellant from the neighborhood. Each had seen him on several occasions before the night of the shooting. Parker supplied police with the following detailed description of appellant: “black male, about 25 years old, five-ten, medium build, high haircut like a box and he had a white T-shirt on, tank top, shirt with straps, ... and a couple of missing teeth in his mouth”. Both Culbreth and Parker had noticed the teeth missing from the front of appellant’s mouth since the first time they had seen him in the neighborhood.

In addition to this description, the police also had information received from an unidentified man at the hospital that the assailant’s name was “Jason Coleman” and that he could be found in the 1800 block of Brunner Street. As a result, the police went to Brunner Street where they found appellant standing on the steps of 1833 Brunner. He matched the description given by the witnesses, except that he was wearing a sweatshirt-type jacket, which the police thought unusual given the warmth of the summer night. When the police approached appellant, he said his name was Jason Culmer and as he spoke they noticed that he was missing two of his front teeth. Underneath the jacket appellant was wearing a white tank-style T-shirt.

Appellant was taken to the hospital where the victim Parker was being treated for his wounds. Parker identified Culmer as his assailant “without hesitation”. At the hospital, Culbreth also identified appellant as the man he saw shoot Parker.

In his defense, appellant presented the testimony of a friend Eugene Joyner, who testified that appellant had been with him immediately prior to the shooting. They had been together at Joyner’s house, which was near the comer where the shooting occurred. Just after appellant left Joyner’s house, Joyner saw appellant walking towards the comer, empty-handed. Joyner noticed the crowd, went to the comer and saw that Parker had been shot. However, Joyner said that appellant was not present because he had already gone off in another direction at the time of the shooting. The thrust of Joyner’s testimony was that it was impossible for appellant to have shot Parker since he had no weapon when Joyner saw him just minutes before the shooting and that, in any case, he was not near the victim when the shooting occurred.

Appellant raises several challenges to his conviction. First, he argues that there was insufficient evidence on which to base a conviction. He also alleges that the trial court erred when it refused to allow the defense to cross-examine William Parker regarding two juvenile delinquency adjudications and one pending adult criminal case in order to demonstrate bias on the witness’ part. Next, appellant argues that the trial court erred in allowing the police officer who interviewed witnesses at the hospital to testify regarding the information which led him to the 1800 block of Brunner Street. Further, appellant cites instances of prosecutorial misconduct which he claims entitle him to a new trial. Finally, appellant alleges that trial counsel was ineffective in its presentation of a defense on his behalf. These claims lack merit.

Appellant’s challenge to the sufficiency of the evidence need not detain us long. Clearly, the only contested element of the Commonwealth's case was the identity of the assailant. The fact that Parker was shot at close range with a sawed off shotgun and severely injured could not be nor was it seriously contested. The victim in this case positively, consistently and unwaveringly identified appellant as the person who shot him with the concealed shotgun. Culbreth corroborated Parker’s description and identification. Each described the gunman with great specificity. Everything about appellant’s appearance matched the description originally given to the police.

Moreover, both Parker and Culbreth had seen appellant several times before in the neighborhood. Although they did not know his name, they were familiar with him. Thus, their positive identification was not, as appellant asserts, based on a “brief glimpse”. The positive identifications at the hospital occurred a short while after the assault and were “without hesitation.”

Our standard of review for challenges to the sufficiency of the evidence is limited. Viewing all the evidence at trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, we must determine whether the trier of fact could have found that each element of the offense was proven beyond a reasonable doubt. Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990). We conclude that on this record, it cannot reasonably be argued that this standard has not been met.

Appellant further argues that he is entitled to a new trial because the trial court prevented him from cross-examining the victim, William Parker, regarding two delinquency proceedings and an adult criminal case. At the time of the incident the juvenile matters were pending and the adult criminal charge had not yet been brought. By the time of trial the juvenile matters were closed and the adult criminal charge had been brought and was open. Appellant does not specifically articulate how the fact that Parker had two open juvenile cases at the time he was shot would arguably have an impact on the reliability of his immediate identification of appellant. Appellant further contends that, due to the pendency of the adult criminal case, Parker “may have had a motive to testify against appellant”, and that therefore the trial court impermissibly restricted cross-examination which could expose possible bias. In the context of this case, we conclude that the trial court’s ruling, even if error, does not entitle appellant to a new trial.

As a general rule, defense counsel must be permitted to cross-examine a Commonwealth witness on possible favorable treatment or expectations of such favorable treatment in exchange for testimony for the prosecution. Failure to allow cross-examination to reveal possible bias of this nature is error and will require a new trial unless the error can be shown to have had no impact on the outcome of the case. See Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986); Commonwealth v. Jennings, 405 Pa.Super. 590, 592 A.2d 1370 (1991); Commonwealth v. Blassingale, 391 Pa.Super. 395, 571 A.2d 426 (1990). The principle upon which this rule is premised is that the jury should have the opportunity to consider information concerning possible ulterior motives on the part of the witness in order accurately to assess the witness’ credibility.

In the instant case appellant argues that Parker’s juvenile delinquency adjudications which were open and pending at the time of the shooting but closed by the time of trial could establish a possible ulterior motive for Parker’s testimony against appellant. He does not explain how this is so. In order to accept appellant’s hypothesis, it would be necessary to conclude that at the time Parker described appellant to the police and later positively identified him from his emergency room stretcher, Parker was motivated by a desire to receive favorable treatment from the Commonwealth vis-a-vis his pending delinquency proceedings. Moreover, it would be necessary to speculate that Parker’s identification of this particular defendant as opposed to any other potential suspect was done with an eye towards currying favor with the prosecution. In our view, the reasonable potential for drawing such inferences is weak at best.

The same weakness infects appellant’s argument with respect to the adult criminal charge which was pending at the time of trial. After Parker identified appellant he was charged as an adult criminal on a drug charge. At trial, therefore, Parker merely continued to maintain that which he had asserted all along; that is, that appellant was his assailant. The possibility that he was influenced by the hope of deals with the Commonwealth on the pending adult charge is remote indeed given this sequence of events.

We are aware that our Supreme Court has found error where the trial court impermissibly restricted the cross-examination of an assault victim on pending juvenile charges which were instituted subsequent to the stabbing and the victim’s identification of the defendant. Commonwealth v. Borders, 522 Pa. 161, 560 A.2d 758 (1989). Borders instructs that cross examination of the witness on the criminal charges was proper even though those charges were filed after the victim witness identified the defendant. On the other hand, where the inference of possible bias is as tenuous, indeed farfetched, as it is in this case and where the identification of the defendant is as unequivocal and immediate as it is in the instant case, we confidently can conclude that any error in restricting cross-examination was harmless beyond a reasonable doubt.

Our conclusion is reinforced by the fact that Parker’s testimony, and his identification and description of appellant was corroborated in detail by Culbreth. Thus, Parker’s testimony was not the sole basis upon which the jury could have found that appellant was the perpetrator. Contrast Commonwealth v. Ocasio, 394 Pa.Super. 100, 104 n. 5, 574 A.2d 1165, 1168 n. 5 (1990). This court has found that a trial court’s error in restricting cross-examination aimed at exposing alleged bias can, in particular circumstances, be harmless beyond a reasonable doubt. See Commonwealth v. Jennings, supra, 592 A.2d at 1374-1375; Commonwealth v. Nolen, 390 Pa.Super. 346, 568 A.2d 686 (1989). The error complained of here was harmless beyond a reasonable doubt.

Appellant also alleges that the trial court erred in allowing Officer Bernard to testify that he received information at the hospital from an unidentified man which led him to appellant’s street address where appellant was eventually arrested. The information at issue was received from a man too intimidated to identify himself to police but who told the officer that the assailant’s name was “Jason Coleman” and could be found in the 1800 block of Brunner Street. In our view, this testimony falls squarely within the recognized exception to the rule against hearsay which permits testimony offered to explain a course of conduct or fill a gap in the narrative which would otherwise be left unexplained. See Commonwealth v. Palsa, 521 Pa. 113, 555 A.2d 808 (1989); Commonwealth v. Blair, 394 Pa.Super. 207, 575 A.2d 593 (1990); Commonwealth v. Rivera, 409 Pa.Super. 120, 597 A.2d 690 (1991).

The decision whether to admit statements of out-of-court declarants which explain the course of conduct leading to arrest is entrusted to the sound discretion of the trial court. The trial court is charged with weighing the prejudicial impact of such statements against the value and relevancy of the statements in accounting for subsequent police conduct. Commonwealth v. Palsa, 521 Pa. 113, 178, 555 A.2d 808, 811 (1989) (“[A] balance [must] be struck between avoiding the dangers of hearsay testimony and the need for evidence that explains why police pursued a given course of action. This balancing process is governed by the sound discretion of the trial court, and, as with other evidentiary decisions, the trial court’s decision will be upheld on appeal unless there has been an abuse of that discretion.”) (emphasis added).

In the instant case, the trial court correctly concluded that the prejudicial impact of the contested testimony was de minimus and that the statement was admissible to explain why Officer Bernard went to Brunner Street looking for appellant. Officer Bernard’s arrival at the home where appellant was placed under arrest would have been inexplicable without some reference to the information he received at the hospital regarding appellant’s possible whereabouts.

More importantly, in light of the other identification evidence in the instant case, the complained-of statement was merely cumulative of highly persuasive and incriminating testimony. Two eyewitnesses, both of whom knew appellant by sight, gave exceptionally detailed, uniform and emphatic descriptions of appellant and identified him as the shooter shortly after the assault and at trial. Thus, this is not a case which calls for the exclusion of “course of conduct” testimony based on its overwhelmingly incriminating nature. We do not find an abuse of discretion in the trial court’s decision to admit this testimony.

We also find appellant’s claims of prosecutorial misconduct lacking in merit. Specifically, appellant alleges that the prosecutor made inflammatory and improperly prejudicial remarks in her closing argument and during trial and that she impermissibly alluded to inadmissible testimony. In assessing these claims we note that the prosecutor’s language must be viewed in the context of the entire trial and all the evidence presented. Commonwealth v. Smith, 490 Pa. 380, 386, 416 A.2d 986, 989 (1980). While the prosecutor may not deliberately seek to prejudice the jury or stigmatize the defendant to such an extent that the jury can no longer deliberate dispassionately on guilt or innocence, every objectionable remark will not require a new trial. Only statements by the prosecutor which have the “unavoidable effect” of prejudicing the jury will require reversal. Commonwealth v. Jones, 391 Pa.Super. 292, 310, 570 A.2d 1338, 1348 (1990).

We have thoroughly reviewed the portions of the prosecutor’s closing argument which appellant cites as reversible error. We do not agree that these portions represent improper comment by the prosecutor regarding her own personal belief of the eyewitnesses’ credibility. Read in context, these remarks are merely the prosecutor’s argument suggesting that the complainant had no motive to lie regarding the identity of his assailant and emphasizing to the jury that the complainant had suffered substantial injury as a result of the assault. The prosecutor’s statements neither overstepped the bounds of legitimate argument nor inflamed the jury.

Finally, we conclude that the prosecutor did not overstep the bounds of proper argument when she fleetmgly referred to the fact that the police left the hospital on the night of the shooting armed with descriptions of the appellant supplied by Parker, Culbreth, and Freda Murray, who was an occupant in the car Parker was driving. Murray did not testify at trial. The prosecutor did not comment upon the content of Murray’s description nor did she specifically argue that it constituted corroboration of the identification testimony. Moreover, the trial court repeatedly warned the jury that their memory and view of the trial evidence must govern its deliberations and that counsel’s arguments and comments did not constitute evidence. See Commonwealth v. Scarpino, 494 Pa. 421, 431 A.2d 926 (1981). In light of the foregoing, no new trial is warranted on this claim.

Appellant further argues that the trial court erred in admitting the shotgun pellets and wadding removed from the victim’s wounds into evidence at trial because the chain of custody with regard to them had not adequately been established. This argument is likewise without merit. This matter is, of course, committed to the trial court’s discretion which will not be reversed absent abuse of discretion. Physical evidence may be admitted at trial without demonstrating to an absolute certainty the precise chain of custody. Commonwealth v. Hudson, 489 Pa. 620, 630, 414 A.2d 1381, 1387 (1980). Here, the shotgun pellets were removed from Parker’s arm by a physician who testified at trial. They were marked with a specimen number and a patient number and subsequently picked up at the hospital by a police detective who later identified them at trial. This chain of custody was sufficiently strong to give rise to the reasonable inference that the pellets introduced at trial were those removed from Parker’s body. As such they were properly admitted.

Finally, appellant asserts the ineffectiveness of trial counsel in the following areas: 1) failure to request a missing witness charge; 2) failure to request a jury charge that Officer Bernard’s “hearsay” statements could not be considered evidence of guilt; and 3) failure to present an alleged alibi witness.

It is settled that counsel’s stewardship at trial is presumptively effective. In order to prevail on an ineffectiveness claim, appellant bears the burden of proving that the alleged omission by counsel had arguable merit in the first place. If it did, this court must then inquire whether counsel’s actions were reasonably designed to effectuate the client’s interest. Finally, counsel’s error or omission must be shown to have prejudiced appellant. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Appellant claims that trial counsel was ineffective for failing to seek a missing witness instruction for Freda Murray, an occupant of the car, and the unidentified man at the hospital. The missing witness instruction allows the jury to draw an unfavorable inference from the absence of a potential material witness who is available to only one party in the case. Therefore, in order for the instruction to be invoked appropriately against the Commonwealth the witness must be available only to the Commonwealth. Further, the witness’ testimony must not be merely cumulative. Commonwealth v. Manigault, 501 Pa. 506, 509, 462 A.2d 239, 241 (1983). The witnesses at issue here do not meet either of these prerequisites. Clearly, the one witness who remained “unknown” at the time of trial was unavailable to both parties since his identity was never disclosed. Murray, on the other hand, was available to both parties, since her identity was made known to appellant. Finally, it was neither alleged nor shown that either witness had material evidence to offer which would be anything more than cumulative. Under these circumstances, counsel cannot be ineffective for failing to seek an instruction to which appellant was not entitled.

Appellant also argues that trial counsel was ineffective for failing to seek a limiting instruction regarding the use to which the jury could put Officer Bernard’s “course of conduct” testimony, i.e., the testimony on how the officer was directed to Brunner Street. In our view, while such an instruction, if requested, would have been in the trial court’s discretion to give, the failure of counsel to request the charge cannot be said to have affected the outcome of the trial. As discussed thoroughly above, the eyewitness testimony identifying appellant as the gunman was exceptionally strong and the Commonwealth did not rely on the “course of conduct” testimony to corroborate its case. In light of the testimony given by Parker and Culbreth, we conclude that the fact that the jury was not specifically told that it could not use the complained-of portion of Officer Bernard’s testimony as substantive evidence did not prejudice appellant.

Lastly, we address appellant’s claim that trial counsel was ineffective for failing to call a witness, Kenneth Woodard, whom appellant met while incarcerated. Woodard claimed to have been at the scene of the crime. He purportedly would have testified that appellant was not the assailant in Parker’s shooting. At the post-trial hearing to assess the merits of this claim of ineffectiveness, both Woodard and trial counsel testified. Woodard stated that at first he was reluctant to testify at appellant’s trial because he was in jail on charges of his own and did not need the additional burden. However, after speaking again to appellant in prison, Woodard professed his sudden willingness to testify on appellant’s behalf.

Trial counsel testified at the post-verdict hearing that when he first interviewed Woodard prior to trial, Woodard could neither confirm nor deny whether appellant was the assailant the night of the shooting. From this interview, trial counsel concluded that Woodard would not be helpful to appellant’s case.

It was only after trial that Woodard decided that he could confirm that the shooter had been someone other than appellant. Trial counsel can not be ineffective for failing to call a witness who before trial was unsure he would support the defense position. We agree with the trial court which found at the post-trial hearing that counsel exercised “logical, sensible” judgment in his decision not to call Woodard.

Judgment of sentence affirmed. Jurisdiction relinquished.

      . The record does not reveal any connection between appellant and the first carload of people with whom Parker argued.

      . Appellant also argues that it was improper for the prosecutor to seek to have Parker display his wounds to the jury. This claim of error has not been preserved for review. There was no objection at trial when the court permitted Parker to show the jury the extent of his injuries, nor was this issue raised in post-verdict motions. Moreover, given that the Commonwealth was required to establish that the assault on Parker tended to cause “serious bodily injury” which constitutes "a substantial risk of death” or a "serious, permanent disfigurement”, a reasonable demonstration of the extent of Parker’s injury was well within the trial court’s discretion to permit. 18 Pa.C.S.A. §§ 2301, 2710(a)(1) (Purdon 1983).

      . Appellant also alleges in his brief that the prosecutor improperly elicited testimony from Culbreth that he was “approached by an unnamed person regarding his intention to testify at trial”. In fact, such testimony was never elicited. Rather, on re-direct examination, in an attempt to permit the jury to comprehend Culbreth’s evident discomfort on the witness stand, the prosecutor asked Culbreth if he was “scared” to be in court because some people had “approached him”. Culbreth, however, answered "No”. He stated instead that he didn’t want to be in court because he "didn’t want to have anything to do with it” because “all this is new to me”. Thus, the witness’ answers did not disclose anything prejudicial to appellant. There is no basis for a new trial in this attempted line of questioning.

      . Murray was sixteen years old at the time of trial and was attending high school in Meridian, Mississippi. Thus, the trial court found that she was unavailable to testify. The court also found that since her identity and whereabouts were made known to the defense, she was equally available to both the defense and the prosecution.


author: DEL SOLE, Judge: OLSZEWSKI, Judge,

text:
    604 A.2d 1098
    COMMONWEALTH of Pennsylvania v. Edward Joseph BAUER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 16, 1991.
    Filed March 19, 1992.

      James G. Stock, Asst. Public Defender, Pittsburgh, for appellant.
    Michael W. Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and MONTEMURO, JJ.
   DEL SOLE, Judge:

Appellant, Edward Joseph Bauer, entered a plea of guilty to nine counts of delivery of controlled substances, and two counts of criminal conspiracy. These charges arose from a number of transactions which occurred between October, 1986 and April, 1987, in which Mr. Bauer sold marijuana, LSD, and then cocaine to an undercover police officer. Appellant was sentenced to consecutive sentences on all the charges, for a total minimum of 27V2 years and a maximum of 55 years incarceration.

He first claims on appeal that his guilty plea was unknowing and involuntary because he did not know at the time of the colloquy what the total punishment would be if the individual sentences on each crime were imposed consecutively. He further claims that counsel was ineffective for failing to object to the inadequate colloquy which caused the unknowing plea; or, alternatively, that counsel was ineffective for failing to move to withdraw the plea prior to sentencing.

The question of whether a guilty plea is knowing and voluntary when a defendant pleads guilty to a number of charges, and is not informed that the sentences may be imposed consecutively has been recently addressed by a panel of this court in Commonwealth v. Braxton, 410 Pa.Super. 391, 600 A.2d 198 (1991). Therefore, in accordance with that opinion we find no merit to this claim and no ineffectiveness.

Next Appellant claims that the police activity was so outrageous that it violated Mr. Bauer’s due process rights and counsel was ineffective for failing to argue and preserve this issue. In particular, the conduct complained of includes taking advantage of Appellant, who was addicted to drugs, in permitting him to retain some of the drugs in payment, and accumulating the criminal charges against him by multiple transactions with the undercover agent.

A plea of guilty constitutes a waiver of all defects and defenses except those concerning the jurisdiction of the court, legality of the sentence, the validity of the plea, or errors in the record or of the clerk, or the correction of a fraudulently procured sentence. Commonwealth v. Coles, 365 Pa.Super. 562, 530 A.2d 453 (1987), alloc. denied 522 Pa. 572, 559 A.2d 34 (1989). A challenge to police procedure as violating due process does not fall under any of these exceptional defects or defenses and may not be raised after the entry of a guilty plea. Because this underlying claim was waived by the guilty plea, Appellant’s derivative claim of ineffective assistance must necessarily fail. Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315 (1988).

Moreover, even if it were not waived, it lacks merit. In Commonwealth v. Delligatti, 371 Pa.Super. 315, 538 A.2d 34 (1988), a similar case in which there were multiple drug transactions, and the defendant was permitted to retain a portion of the drugs in payment, we held that such police conduct did not constitute outrageous behavior or over-involvement in the criminal enterprise. We also held that the police were not required to arrest Appellant after the first transaction if the arrest would jeopardize the entire investigation.

Appellant argues that the record fails to establish that the police deferred arresting Mr. Bauer due to overriding concerns such as the safety of the informant or the protection of the investigation. However, at the plea proceeding, when the Commonwealth attempted to explain the scenario behind the investigation, Appellant objected on the basis that it was irrelevant to the guilty plea colloquy. At sentencing, the Commonwealth again attempted to show that the police continued to have transactions with Appellant, and thus amass charges against him, because in their belief he might give them access to a motorcycle gang which was trafficking in LSD. However, defense counsel objected to the admission of this information. Appellant’s counsel had a reasonable basis for keeping out information concerning Appellant’s involvement with a drug trafficking ring, and therefore the details of the investigation were not explored. We therefore hold that the police conduct which involved multiple transactions and partial payment in drugs did not constitute outrageous behavior violating Appellant’s due process rights.

Finally, Appellant claims that the sentencing court abused its discretion in sentencing him to an aggregate sentence of 21k to 55 years incarceration. Where a plea agreement is an open one as opposed to one for a negotiated sentence, the defendant may challenge the propriety of a sentence. Coles, supra, 365 Pa.Superior Ct. at 570, 530 A.2d 457. Furthermore, we hold that when the imposition of sentences consecutively results in the imposition of a minimum incarceration of nearly 30 years, and when Appellant claims that the court did not consider the rehabilitative needs of the defendant, and instead focused solely on the seriousness of the crime, Appellant has raised a substantial question for consideration by this court. Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985); Commonwealth v. Rizzi, 402 Pa.Super. 335, 586 A.2d 1380 (1991) (en banc).

When we review appeals involving the discretionary aspects of sentencing, we must abide by 42 Pa.C.S. § 9781, Appellate review of sentence, which provides in relevant part:

(d) Review of record. In reviewing the record the appellate court shall have regard for:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.

Although none of the individual sentences imposed here is in excess of the statutory maximum, we find the cumulative sentence to be so manifestly excessive so as to constitute an abuse of discretion, Parrish, supra; Commonwealth v. Simpson, 353 Pa.Super. 474, 510 A.2d 760 (1986) alloc. denied, 514 Pa. at 624, 522 A.2d 49 (1987). Our Supreme Court has stated that Pennsylvania’s procedure of indeterminate sentencing carries with it an implicit adoption of the philosophy of individual sentencing. Therefore, the particular circumstances of the offense, and the rehabilitative needs of the defendant must be considered. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). A trial court may not base its sentence upon the seriousness of the crime alone. Id., Parrish, supra, 340 Pa.Superior Ct. at 534, 490 A.2d 908.

In this regard, in Commonwealth v. Rizzi, supra, we reversed a sentence of three to six years imprisonment for two counts of possession with intent to deliver. The court stated, when sentencing the defendant, Rizzi:

You have a young family. You have a clean record. On the other hand, I have had the benefit of a presentence investigative report, and the jury has found you guilty of both counts here, and I do have the unpleasant duty of sentencing you. I have to regard this as a very serious offense. The problem that’s been spreading through our community and our country generally. We do have to recognize this as a most serious offense, and I think if I were to do anything but impose a substantial period of incarceration I would certainly not be doing my duty. Rizzi, supra, 402 Pa.Superior Ct. at 842, 586 A.2d at 1384.

Although, we were mindful of the heavy impact of Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), we held that the trial court unduly emphasized the seriousness of the crime and disregarded the other factors enunciated in 42 Pa.C.S. § 9721, among which were the impact on the life of the victim and the community, and the rehabilitative needs of the defendant.

In the instant case, it appears that the reason for the large number of controlled buys from Appellant by the undercover police officer, and the extended period in which they took place, was due to the police attempts to infiltrate the organization supplying Appellant. All the sales were to the one undercover officer, and there was evidence that Appellant was himself heavily addicted and was selling to support his habit. Prior to imposing sentence, the sentencing judge gave his reasons for imposing 21k to 55 years imprisonment. He stated:

THE COURT: Well, Mr. Bauer, in my opinion, the sale of drugs is the worst crime that we have. I don’t think I’m alone in that opinion. I read in the papers frequently where some do-gooders want to legalize drags and things like that. I think, frankly, they’re all whacko. However, they’re entitled to their opinion. When you sell drugs, you don’t know what’s going to happen to those drugs. You obviously didn’t know Officer Salerno was a City Detective or you wouldn’t be selling drags to her. You didn’t know what the heck she was going to do with those drugs. She could be giving them to kids, mine or anybody’s. You had no idea what she was going to do with them selling them to somebody else.
There are many cases here, Mr. Bauer. I would call you a major drug dealer. Even as Mr. Raiford [defense attorney] has said, even small drug dealers, why, I consider just as guilty as the drug lords ... (N.T. at 12-13, June 5, 1990).

This statement, even more clearly than in Rizzi, evidences the court’s undue emphasis on the seriousness of the crime to the extent of disregarding all other factors. The sentencing court did not consider or weigh the effect of a cumulative minimum sentence of nearly thirty years, or the rehabilitation needs of a man 43 years of age, nor does this statement evidence any consideration for the circumstances surrounding the crime, and instead speculates on facts not of record, such as if the buyer were not a police officer, she might have resold the drugs to children.

While not denigrating the seriousness of the offense of selling drugs, we must require that the sentencing court consider more than the gravity of the offense. On remand the court should balance the need of society to punish such offenses and the need to assure a sentence which does not result in such excessive harshness. Rizzi, supra, 402 Pa.Superior Ct. at 344-345, 586 A.2d at 1385-86.

Judgment of sentence is vacated and case remanded for resentencing consistent with this opinion.

OLSZEWSKI, J., files a concurring and dissenting opinion.

OLSZEWSKI, Judge,

concurring and dissenting.

I enthusiastically endorse and agree with our learned colleagues on the first and second issues presented. With regard to appellant’s third issue, however, I respectfully disagree and find that it does not constitute a substantial question for our review.

In accordance with the dictates of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), an appellant who submits an appeal from the discretionary aspects of his sentence must provide a concise prefatory statement of reasons for allowance of appeal which demonstrates a substantial question that the sentence imposed was not appropriate under the sentencing code. The majority states the following:

Furthermore we hold that when the imposition of sentences consecutively results in the imposition of a minimum incarceration of 30 years, and when appellant claims that the court did not consider the rehabilitative needs of the defendant, and focused solely on the seriousness of the crime, appellant has raised a substantial question for consideration by this court.

At 225, 604 A.2d at 1101, (emphasis added). There exists conflicting case law as to whether this issue presents a substantial question for review.

The majority cites Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985) and Commonwealth v. Rizzi, 402 Pa.Super. 335, 586 A.2d 1380 (1991) {en banc), as authority for this proposition. In Parrish, appellant argued to this court that her sentence was excessive in that it violated or exceeded the sentencing guidelines. Parrish, 340 Pa.Super. at 530, 490 A.2d at 906. This court addressed the merits of appellant’s assertion but failed to analyze or rule on the existence or nonexistence of a substantial question for review. This court held that the guidelines were misapplied, thus resulting in an excessively harsh sentence. Id. In so holding, this court indicated that a trial court cannot base its sentence upon the seriousness of the crime alone. Parrish, 340 Pa.Super. at 533, 490 A.2d at 908. The present case, however, is distinguishable from Parrish since appellant does not contend that his sentence violated the guidelines.

In Rizzi, appellant maintained that the sentencing judge erred in three instances: (1) by refusing to apply guidelines which had been found unconstitutional between the time of the commission of the crime and the imposition of sentence; (2) by not focusing on the rehabilitative needs of the defendant, and instead focusing solely on the seriousness of the crime; and (3) by failing to explain a deviation from the guideline ranges. Rizzi, 402 Pa.Super. at 341, 586 A.2d at 1383 (emphasis added). In its en banc decision, this court found that these claims presented a substantial question that the sentencing scheme as a whole had been compromised. Id. The case law supporting this statement, however, held that a substantial question exists where appellant claims that the trial judge rendered an inadequate statement of reasons for sentencing. Commonwealth v. Thomas, 370 Pa.Super. 544, 550, 537 A.2d 9, 12 (1988).

Moreover, the majority’s conclusion that a substantial question has been presented is at odds with this court’s decision in Commonwealth v. Mobley, 399 Pa.Super. 108, 581 A.2d 949 (1990), where appellant argued on appeal that he was improperly sentenced to a manifestly excessive sentence because the trial court failed to consider his rehabilitative needs. In Mobley, this court held that there was no substantial question presented since the weight accorded to various sentencing factors does not raise a substantial question absent extraordinary circumstances. Mobley, 399 Pa.Superior Ct. at 115, 581 A.2d at 952. Accordingly, the merits of appellant’s allegation were not addressed.

The majority’s finding of a substantial question is in conflict with Mobley. Since I find that no substantial question exists, I would deny appellant’s petition for allowance of appeal and would not address the merits on appellant’s third issue. Therefore, I would affirm the judgment of sentence.