author: DEL SOLE, Judge.

text:
    612 A.2d 998
    Debra SONCINI, Appellant, v. Dale A. SONCINI, Appellee.
    Superior Court of Pennsylvania.
    Argued March 5, 1992.
    Filed July 8, 1992.

      Mary E. Baloh, Greensburg, for appellant.
    Jay A. Blechman, Pittsburgh, for appellee.
    Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
   DEL SOLE, Judge.

This is an appeal from the trial court’s order granting a Appellee/Father’s petition for modification of child support, and denying Appellant/Mother’s petition for reinstitution of alimony. A history of the proceedings in this case is essential for an understanding of the issues raised.

The parties were married in May of 1982 and separated in 1986. They were divorced on January 17, 1990. They have one child, Natalie, born in April, 1984 with a rare incurable disease called congenital hyperplasia syndrome. This disease is caused by the malfunctioning of the adrenal glands resulting in an inability to retain sodium and water, virilization, ambiguous genitalia, and at the time of the hearing, a failure to sustain normal growth. The child requires, and will require, daily medication as well as emergency injections when she runs a fever associated with viral infections. She has several allergies, and reacts unfavorably to certain antibiotics used to treat her when she contracts an infection. Because of her inability to retain sodium and water, she is subject to rapid dehydration in response to physical illnesses and emotional distress, and when this occurs she often needs hospitalization. Normal childhood illnesses are a sufficient threat to Natalie’s health to require hospitalization.

Mother, Debra M. Soncini, has primary physical custody of Natalie, and during the marriage it was the parents’ joint decision that Debra Soncini would stay home to raise Natalie because of the child’s chronic illness. Debra Soncini has an undergraduate degree in business management, and prior to Natalie’s birth she was employed by Honeywell Corporation earning approximately $20,000. The relations between the parents since the separation and divorce have been contentious at best, and at one point the court remarked that it was clear that the parties “loathe” each other. This has resulted in numerous charges and counter charges concerning Father’s partial custody arrangements, with concomitant contempt charges for violations of the custody order, and charges of mistreatment by Father. At one point, counselling was ordered by the court because of the effect these recriminations were having on Natalie.

Prior to the proceedings in the trial court resulting in this appeal, the support order in place required that Father pay $475.00 per month in support for Natalie. The trial court, despite the recommendations of the Master concerning equitable distribution and alimony, ordered that the same amount be paid in spousal support, “for a period of one (1) year or until such time as the plaintiff is gainfully employed whichever date occurs first.” It is not entirely clear from the record how the child support figure was arrived at, but it may be assumed from the expense sheets and tax forms submitted by the parties, that the factors which go into the application of the Melzer formula were considered. Because of Father’s failure to live up to his support obligations, there have been several contempt proceedings and wage attachments to enforce the support order.

In January, 1990 Father petitioned to modify the support order based on an averment that his income had decreased. However, because both parties had filed cross appeals to this court from the divorce decree and order in equitable distribution and alimony, the trial court ordered that no hearing date would be set until the Superior Court had ruled on the appeal.

Subsequently, this court affirmed the trial court. We held that the trial court had not abused its discretion in limiting the duration of the alimony award to Mother, and concluded that the limitation did not foreclose Mother’s right to a future hearing on the reinstitution or modification of the alimony award. Soncini v. Soncini, 407 Pa.Super. 655, 584 A.2d 1055, (1990). In April, 1991, Mother filed a Petition Seeking Continuation and/or Reinstitution of Alimony and a combined hearing on this Petition and Father’s Modification of Support Petition was held. The trial court ruled that alimony should not be reinstituted and that child support should be reduced to $350.00 per month. This appeal followed.

Initially, Mother urges this court to reverse the trial court’s order decreasing child support from $475.00 per month to $350.00 per month on two bases. First, she argues that Father failed to show a change of circumstances sufficient to modify the support order, and secondly she argues that the trial court failed to take in to account extraordinary circumstances, and instead merely applied the grid/support guidelines. We will discuss both these claims seriatim.

When a party seeks to modify a child support order, the moving party has the burden of proving by competent evidence that a material and substantial change of circumstances has occurred since the entry of the original or modified support order. Commonwealth ex. rel. Sladek v. Sladek, 386 Pa.Super. 490, 492, 563 A.2d 172 (1989). We will not disturb a child support order unless the trial court, in determining the amount of support, has abused its discretion, and where the moving party’s burden of proof has not been met, an abuse of discretion will be found. Id., 386 Pa.Super. at 493, 563 A.2d 172; Steenland-Parker v. Parker, 375 Pa.Super. 457, 460, 544 A.2d 1010, 1012 (1988).

Father moved for modification of child support based on decreased earnings. Instantly, the record reveals that in 1988 when the child support order of $475.00 was entered, Father earned approximately $30,000 per year, and at the time of the hearing, he stated he earned in 1990, about $35,000 per year. Father also stated that since 1988 he had gradually increased his wages. (N.T. at 98, May 28, 1991). Mother started working in February, 1990, four months prior to the hearing, and she grosses about $370.00 per month or $4,500 per year. (N.T. at 44, May 28, 1991).

In sum, the record does not support Father’s claim that modification of support is required because of decreased earnings. Moreover, Father failed to show that he had increased expenses, rather, the record shows that Father is now living with his fiancee who is gainfully employed by Westinghouse and contributing to the household expenses. (N.T. at 100, May 28, 1991).

We have stated that, “a Court may only modify an existing support award when the party requesting the modification shows a material and substantial change in circumstances since the Order was entered.” Commonwealth ex rel. Vona v. Stickley, 287 Pa.Super. 296, 299, 430 A.2d 293, 295 (1981), cited in, Bradley v. Bradley, 387 Pa.Super. 503, 564 A.2d 504, 506 (1989). Here, the trial court failed to explain and the record does not reveal how there has been a material change of circumstance since the 1988 order was entered. While it is true that since the entry of the 1988 support order, Mother has begun to work part-time, her income (approximately $4,500 per year), balances out Father’s increased earnings of approximately $5,000 per year, and therefore does not show a substantial change of circumstances. Moreover, this would certainly not warrant a downward revision of the support award.

We therefore hold that Father has failed to meet his burden of proving a material and substantial change in the circumstances of the parents, and therefore a modification of the support order was unwarranted.

The trial court arrived at its support award by applying the guideline grid to the net income of Father ($1,849.00 per month) and imputing $500 of net income per month to Mother, although she presently earns only a little over half of that amount. The trial court stated, “an Order of $333.00 is suggested. Based on all factors, this Court concluded that the original Order of December 18, 1990 [for $350.00] is appropriate so long as Defendant contributes to Natalie’s extraordinary medical expenses and maintains health insurance coverage for the child.” (Trial Court Opinion at 3, July 16, 1991).

We disagree. With the enactment of the guidelines, the trial court’s decisional process has been restructured. In guideline cases, we first look to determine if the court correctly computed the parties’ incomes. We must next determine if the correct guideline amount was selected. However, it must be stressed that “the support guidelines are a starting point only. They must be applied taking into consideration the special needs and obligations of the parties.” Pa.R.Civ.P. 1910.16-4(a). Therefore, where a trial court is asked to consider a departure from the guidelines based upon the unique needs of either the child or the obligor parent, we must examine the court’s reasons for ordering departure or for refusing to take such action.

In the instant case, it was undisputed that there were extraordinary expenses involved in caring for Natalie. Mother must travel to Pittsburgh for doctors’ appointments seven times per month. Although Father testified he would be willing to drive Natalie to the doctors, he also stated that he works five to six days a week, returning home at the earliest at 6 P.M. Because all of these doctors’ appointments must be scheduled on weekdays between 9 and 5 o'clock, it is not realistic to expect that he would be able to fulfill this offer. Mother calculated her reasonable travel expenses for these doctors’ visits to be $164.00. This figure was undisputed.

It was also undisputed that Natalie was ill approximately 5 days per month, and Mother’s income at her part time job was reduced accordingly. Mother must also must pay for psychological treatment (approximately $64.00 per month) for Natalie because of the issues surrounding the virilization or masculinization Natalie experiences because of the disease. None of these extraordinary expenses were disputed, and yet the trial court failed to give reasons for disregarding them and strictly adhering to the guidelines.

The statute mandating enactment of state-wide support guidelines provides in pertinent part that, “the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention." 23 Pa.C.S. § 4322(a). Because the guidelines must be tempered by individual treatment in order to make adjustments for exceptional circumstances, Ryan v. DeLong, 371 Pa.Super. 248, 538 A.2d 1, 3, (1987), the guideline rules provide a list of the relevant factors that the court and hearing officers must consider after determining the basic amount from the grid. Rule 1910.16-5, Pa.R.C.P., 42 Pa.C.S.A. These include unusual needs and unusual fixed obligations, other income in the household, ages of the children, medical expenses not covered by insurance, and other relevant and appropriate factors.

The trial court does not discuss its reasons for refusing to consider these undisputed exceptional needs and the related expenses. Because these factors must be considered when the trial court or the hearing officer arrives at a support award, and because the trial court gives no reasons for its refusal to deviate from the guideline amount in this case, we find that the court erred in its calculation of the amount of the support order.

Since we have concluded above that the court abused its discretion in ordering the downward modification of the prior child support award of $475.00, because Father failed to show a material and substantial change of circumstances, and since the trial court further compounded its error when formulating a new award by using the grid system but failing to consider exceptional circumstances as required by statute, we vacate the court’s most recent child support order and reinstate the original award of $475.00.

Next, Appellant contends that alimony should have been reinstituted. This court, in reviewing the original alimony award, which was limited to one year’s duration, held, in accordance with section 501(e) of the Divorce Code, [repealed, now 23 Pa.C.S.A. § 3701(e) ], that the Wife may seek modification of the alimony order upon a requisite showing of “changed circumstances ... of a substantial and continuing nature.” Soncini v. Soncini, 407 Pa.Super. 655, 584 A.2d 1055, supra.

In denying Wife’s petition for reinstitution of alimony, the trial court stated that, “the testimony heard before this Court on Plaintiff’s Petition regarding alimony indicates that there has not been a showing of changed circumstances. The tragic medical condition of Natalie has persisted since her birth and continues to be of grave concern. Equally unchanging is the fact that Plaintiff must work in order to help meet her needs and those of the child.” (Trial Court Opinion at 2, July 16, 1991).

Dr. Debra Rosenstein, Natalie’s pediatric endocrinologist, testified that in the three months prior to the hearing Natalie had failed to grow. (N.T. at 15, May 28,1991). The doctors were having trouble determining the dosage of the hormone she must take three times daily at 8 hour intervals. The doctor testified that when enough hormone was given to control the masculinization (hair growth, acne etc.), Natalie failed to grow, but when the hormone dosage was cut down, Natalie began to masculinize. The doctor stated that this swing had been going on from about October, 1990 until the date of the hearing in May, 1991, and that she had informed Mother that unless this was brought under control they would have to hospitalize Natalie. The real potential for hospitalization was a recent development due to Natalie’s growth failure. (N.T. at 13-15, 34, 41, May 28, 1991). When the doctor was asked on cross-examination, “There has been no new condition that you have identified in Natalie in the time that you have seen her; is there?” The doctor responded, “Incorrect. I explained that she’s exhibiting growth failure. That has not been seen before.” (N.T. at 41, May 28, 1991).

Dr. Rosenstein was also asked about the particular obligations of a parent who has a child with Natalie’s condition. She responded that the parent has to be taught a “certain degree of medical judgment,” involving when to triple the dose if the child has a fever, how to give injections, and what sort of medical attention to get when the child vomits. She also stated that the normal occurrence of childhood diseases, which is more frequent with little children, “become crises situations in the family where there is a child with adrenal hyperplasia.” “So this not a question of knowing when you take your pill. It’s a question of understanding the entire process.” (N.T. at 26-27, May 28,1991). The doctor further opined that a substitute caretaker’s qualifications would have to be the same as the parent’s, that is the caretaker would have to know how to respond to any childhood illness, know who to call, where to take the child, and give an injection. (N.T. at 27, May 28, 1991).

Mother testified that she sent the child to a neighborhood public school. There was no full time school nurse, and none of the teachers could give injections, so that when Natalie fell ill, she had arranged to be called immediately. She was able to leave her job at a moment’s notice because the hardware store was owned by friends. She also became a room mother in Natalie’s classroom in order to go on the class field trips with Natalie. Previously, Natalie has been excluded from in the field trips because neither Mrs. Soncini nor any other medically qualified chaperone was available. In the previous five months, Natalie missed 24 days of school due to illness, and Mrs. Soncini was called to the school at least once a month during the last six months due to illnesses. (N.T. 53-57, May 28, 1991).

Mother ran an advertisement in the local paper to find a caretaker for Natalie with the qualifications specified by Dr. Rosenstein and received no replies. She also called an agency which told her that the least expensive caretaker with those qualifications would charge $13.50 per hour. (N.T. 57-58, May 28, 1991). Mother stated that because of her inability to find reasonably priced and suitable caretakers who could care for a child with Natalie’s condition, her recurrent illnesses, and her recent failure to grow, probably necessitating hospitalization in the near future, she could not take a full time job at the present. (N.T. 59, 61, May 28, 1991).

Mother stated that she was asking for alimony to help sustain the care of her child. When she was asked whether she hoped that by 10 or 11 years old, Natalie would be more autonomous, Mother replied, “I hope that the doctors will be able to get Natalie’s health under control sooner than that for Natalie’s sake as well as for all of us, but until they can actually get Natalie’s health under control it seems to be getting more serious as the years go on.” (N.T. at 66, May 28, 1991).

The uncontroverted evidence presented at trial concerning Natalie’s deteriorating medical condition, her recurrent illnesses, her inability to sustain normal growth without masculinization occurring, her doctor’s concern that hospitalization was necessary to stabilize Natalie, Mother’s need to participate more fully in Natalie’s school than originally anticipated in order to give Natalie a chance for a normal school experience, are all indications of changed circumstances of a substantial and continuing nature.

The trial court failed to discuss any of this evidence of changed circumstances. It is clear from the record that Mother can not meet her expenses based on her earnings alone, but the trial court denied the petition for reinstating alimony, focussing instead on the Mother’s need to work, Natalie’s attendance at school and the possibility that caretakers can be trained to take care of Natalie. However, we have held that although a dependent spouse should seek employment commensurate with his/her earning potential, a spouse may equally limit working hours to in order to care for his/her children. King v. King, 390 Pa.Super. 226, 568 A.2d 627 (1989).

In the context of child support we have stated: The court must balance several factors before it can expect the nurturing parent to seek employment. Among these factors are the age and maturity of the child: the availability and adequacy of others who might assist the custodian-parent; the adequacy of available financial resources if the custodian-parent does remain at home. We underscore that, while not dispositive, the custodian-parent’s perception that the welfare of the child is best served by having a parent at home is to be accorded great weight in the court’s calculation of its support order. Com. ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977).

The trial court made no attempt to even discuss these factors, when it held, in effect, that Mother must obtain full-time employment commensurate with her earning potential. In King, supra, 390 Pa.Superior Ct. at 230-231, 568 A.2d at 629, this court upheld a trial court’s decision not to attribute unused earning capacity in formulating a spousal support award when Mother testified that she worked a limited schedule and for a lower rate of pay than she otherwise would because doing so enabled her to have the time and flexibility of schedule she needed to care for her children. We also held in Wasiolek, supra, 251 Pa.Superior Ct. at 111, 380 A.2d at 402-403, that the trial court abused its discretion when it held, in effect, that the nurturing parent must secure employment, despite the mother’s testimony that she was needed at home to care for her three children when they left for school and returned home in the afternoon. Wasiolek, supra, 251 Pa.Superior Ct. at 111, 380 A.2d at 402-403.

The circumstances of the instant case indicate a much greater need for a parent who has the time and flexibility to care for Natalie in emergencies, take her to her many doctor’s appointments, and be able to stay home with her during her many illnesses. The attribution of unused earning capacity to Mother, which has the effect of ordering her to find full-time employment was thus clearly an abuse of discretion.

We therefore reverse the trial court's order denying the reinstitution of alimony on the basis that Mother has clearly shown changed circumstances of a continuing and substantial nature. We remand for the fashioning of an order which assures a reasonable living allowance to the party requiring support and is also fair and not confiscatory, allowing for the reasonable living expenses of the payor. Marshall v. Marshall, 404 Pa.Super. 628, 591 A.2d 1060 (1991)

We therefore vacate the trial court’s order decreasing child support to $350.00, and reinstate the original support order of $475.00. We also reverse the court’s order denying Appellant’s petition for reinstitution of alimony, and remand for the fashioning of a alimony award in accordance with this opinion. Jurisdiction is relinquished.


source: Caselaw Access Project

author: POPOVICH, Judge.

license: Public Domain

text:
    612 A.2d 1004
    Angela J. GOCEK, Appellee, v. Francis J. GOCEK, Appellant.
    Superior Court of Pennsylvania.
    Argued April 30, 1992.
    Filed July 13, 1992.

      Daniel P. Lyons, Stroudsburg, for appellant.
    Thomas S. Ferguson, Phillipsburg, N.J., for appellee.
    Before CAVANAUGH, CIRILLO and POPOVICH, JJ.
   POPOVICH, Judge.

We are asked to review the July 18, 1991, order of the Court of Common Pleas of Monroe County directing the defendant/appellant, Francis J. Gocek, to pay one-half of his monthly civil service pension to the plaintiff/appellee, Angela J. Gocek. We reverse.

The facts, of record reveal that the plaintiff (born June 8, 1922) and the defendant (born March 2, 1923) were married on November 20, 1951. Five children were bom of the marriage, of which only one is presently alive and he is emancipated.

On May 22, 1987, the plaintiff filed a complaint in divorce seeking, among other things, equitable distribution of the property and a share in the defendant’s pensions.

A special master was appointed to hear the case, and, thereafter, the parties appeared before the master and advised him that “an agreement between the parties to resolve all outstanding issues raised by the pleadings” had been reached. This understanding was reduced to writing in a “comprehensive settlement agreement” .

With the completion of the June 29, 1988, hearing, the master prepared a report which recited the terms of the settlement agreement — in particular, that the plaintiff “shall receive the full spousal annuity provided by [defendant’s] government pension”, and that all parties had made full disclosure of their respective financial assets.

By decree dated August 1, 1988, the parties were divorced from the bonds of matrimony and the settlement agreement was incorporated but not merged into the court’s decree.

On July 9, 1990, the plaintiff filed a petition to enforce the property settlement agreement. A rule was issued by the court directing the defendant to show cause why the relief requested should not be granted. An answer and brief were filed by the defendant. Thereafter, the court entered an order reforming the property settlement agreement on the ground of “mutual mistake” and directed that the defendant pay to the plaintiff one-half of his monthly government pension. This appeal followed.

The defendant asserts that the lower court was presented with insufficient evidence in support of its finding that a “mutual mistake” existed requiring the payment of his pension to the plaintiff, the accomplishment of which necessitated a partial reformation of the property settlement agreement.

Before embarking on an analysis of the issue posed, we deem it prudent to set forth some well-established precepts regarding property settlement agreements and their modification:

First, a property settlement agreement between husband and wife will be enforced by the courts in accordance with the same rules of law applicable to ascertaining the validity of contracts generally. Kleintop v. Kleintop, 291 Pa.Super. 491, 436 A.2d 223, 225 (1981). Second, “the misconception which avoids a contract is necessarily a mutual one, and a fact which entered into the contemplation of both parties as a condition of their assent”. Ehrenzeller v. Chubb, 171 Pa.Super. 460, 90 A.2d 286, 287 (1952). And, in Vrabel v. Scholler, 369 Pa. 235, 85 A.2d 858, 860 (1952), the general rule was again stated thusly: “ ‘A contract [made under] a mutual mistake as to an essential fact which formed the inducement to it, may be rescinded on discovery of the mistake, if the parties [can be] placed in their former position with reference to the subject-matter.’” (Citation omitted). Lastly, to obtain reformation of a contract because of mutual mistake, the moving party is required to show the existence of the mutual mistake by evidence that is clear, precise and convincing. Bugen v. New York Life Insurance Co., 408 Pa. 472, 184 A.2d 499, 500 (1962).

The above authorities make it clear that if mutual mistake is properly pleaded, the entry of the relief requested by a petitioner is justified. See Ehrenzeller, supra. We find, however, that such has not occurred here. Rather, the inconsistencies which do appear are indicative of an admission that the plaintiff is relying on a unilateral mistake of fact — her own. See Thrasher v. Rothrock, 377 Pa. 562, 105 A.2d 600, 604 (1954); Loyal Christian Benefit Association v. Bender, 342 Pa.Super. 614, 493 A.2d 760, 762 (1985); Murray on Contracts, § 91E (3rd ed. 1990) (Unilateral versus mutual mistake — remedies).

On July 9, 1990, the plaintiff filed a petition seeking enforcement of the property settlement agreement, the sum and substance of which are unknown to us since it was not included in the record forwarded to this Court. The next document of record is the defendant’s brief in support of his Petition Seeking Enforcement Of The Property Settlement Agreement And In Opposition To The Plaintiffs Petition To Void Or Reform The Property Settlement Agreement filed June 21, 1991.

Initially, we examine the plaintiffs Second Petition For Enforcement Of Property Settlement Agreement, wherein it is provided in relevant part:

2. On June 14, 1988 the parties, Francis J. Gocek and Angela J. Gocek executed a Property Settlement Agreement to settle their financial and property rights.
4. Paragraph nine of the Property Settlement Agreement entitles Angela J. Gocek “to the full spousal annuity provided by Husband’s pension.”
5. The meaning of this clause in conformance with the negotiations between the parties and their counsel is that Angela J. Gocek is to be paid upon receipt by Francis J. Gocek of his Federal Government pension, 50% of that same amount, also paid simultaneously by the Federal Government.
6. It was the understanding of the parties based upon information obtained by Mr. Gocek from the United States Government which he related to Mrs. Gocek that the Federal Government would pay Mrs. Gocek 50% of Mr. Gocek’s pension, approximately $700.00, as well as pay Mr. Gocek his entire pension amount.
7. It is assumed for the purpose of this petition that representations made by Mr. Gocek were done in good faith, without fradulent [sic] intent, and not made for the purpose of inducing Mrs. Gocek to sign this agreement under false pretenses.
8. This annuity for Mrs. Gocek was specifically not limited to any survival rights or payments upon the death of Mr. Gocek, but rather, it was intended to commence payment not at death, but upon receipt by Mr. Gocek of his Civil Service Retirement Benefits. This is clear from the exclusion of the word survivor from paragraph nine of the Property Settlement Agreement.
9. It appears from the express terms of this agreement that both parties understood and intended for Mrs. Gocek to receive 50% of Mr. Gocek’s Civil Service Retirement Benefits. Due to the fact that the Federal Government will not provide Mrs. Gocek with her 50% payment, simultaneous with a 100% payment to Mr. Gocek, does not void the payment right of Mrs. Gocek.
10. It should also be known that Mr. Gocek in addition to the Civil Service pension in the amount of $1,100.00, receives a State Pension in the amount of $187.30 and Social Security in the amount of $407.30 for a total of $1,694.60. Mrs. Gocek through the majority of her life was a housewife taking care of the couple’s children, and as such will be without any retirement benefits. She is presently working for The Summit Resort, Tannersville, Pennsylvania, and with her age, physical condition and health problems, does not expect to be able to continue such employment for any significant time in the future.
11. This agreement imparticular [sic] paragraph nine was negotiated with the understanding that Mrs. Gocek would receive $700.00 a month from Mr. Gocek’s Civil Service Retirement funds to sustain her. Pursuant to this agreement she is entitled to receive 50% of Mr. Gocek’s Civil Service Retirement funds so as to equitably, reasonably and fairly enforce the terms and meaning of the Property Settlement Agreement.

See Appellee’s Brief at 31a-33a. In response, the defendant alleged, in relevant part:

5. Denied. It is specifically denied that the meaning of this clause is based upon negotiations between the Parties prior to the execution of the Property Settlement Agreement. To the contrary, negotiations continued up to and including the time that the Property Settlement Agreement was signed. The Property Settlement Agreement was prepared by counsel for Plaintiff, and was changed ... at the time of the Master’s Hearing. Any negotiations which took place prior to the signing of the Agreement are irrelevant. This allegation is therefore denied.
6. Denied. Defendant hereby incorporates by reference his answer to paragraph number five as if the same were set forth herein at length.
8. Denied. Defendant hereby incorporates by reference his answers to paragraphs number five and seven as if the same had been set forth herein at length. By way of further answer, Plaintiff is receiving the full spousal annuity provided under paragraph nine. By way of further answer, paragraph nine specifically provides that except for this annuity, Wife has waived any interest she may have in any pension, profit sharing, deferred compensation or individual retirement account owned by Husband. The allegation is therefore denied and proof thereof demanded.
9. Denied. Defendant hereby incorporates by reference his answers to paragraphs number five, seven, and eight as if the same had been set forth herein at length.
10. It is submitted that the amounts contained in paragraph ten accurately reflect what Mr. Gocek is currently receiving. It is further admitted that Mrs. Gocek, while the couple's children were minors, has played a role as a homemaker. It is specifically denied that this has any relevance whatsoever, in light of the expressed terms and condition of the Agreement entered into between the Parties. Defendant specifically denies that the balance of the allegation, in particular whether Plaintiff is capable of employment or not and strict proof thereof is demanded. Further, Plaintiff hereby incorporates by reference his answers to paragraphs number five, seven, and eight as if the same had been set forth herein at length.
11. Denied. It is specifically denied that any settlement negotiations between the Parties prior to the final version of the Agreement are material. It is specifically denied that pursuant to the Agreement of the Parties that Mrs. Gocek is entitled to receive 50% of Mr. Gocek’s civil service retirement funds so as to equitably, reasonably and fairly enforce the terms and meanings of the Property Settlement Agreement. To the contrary, the Agreement speaks for itself. Defendant hereby incorporates by reference his answers to paragraphs number five, seven, and eight as if the same had been set forth herein at length.

Id. at 36a-39a (Emphasis in original).

From our review of the facts against the applicable law, we find that there was no “mutual” mistake in this case. It is quite clear that the plaintiffs allegation as to the meaning of Paragraph 9 (Pensions), that she “be paid upon receipt of [defendant’s] ... Federal Government pension, 50% of that same amount,” was denied specifically in the defendant’s pleadings. See Plaintiff’s Second Petition For Enforcement Of Property Settlement, Paragraphs 5, 6, 8 & 9; Defendant’s Answer To Petition For Enforcement Of Property Settlement Agreement, Paragraphs 5, 6, 8 & 9.

We read the averments in the above pleadings to amount to a negation of the presence of a mutual mistake, see Thrasher, supra; Ehrenzeller, supra; see also Sanders, supra. Stated otherwise, the facts upon which the lower court relied for its finding of “mutual mistake” fall short of the clear, precise, and indubitable evidence necessary to invalidate a solemn written obligation. See Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A.2d 332, 337 (1957) (Evidence of mutual mistake must be established by two witnesses or by one witness and corroborating circumstances); Schoble v. Schoble, 349 Pa. 408, 37 A.2d 604, 605 (1944); Dudash v. Dudash, 313 Pa.Super. 547, 460 A.2d 323, 326-27 (1983).

It is a fact of some significance that in her Petition For Enforcement Of Property Settlement Agreement the plaintiff did not charge the defendant with fraud. See Paragraph 7. And, since it must be presumed that the defendant intended to give that which he was entitled to receive from the federal government via an annuity, “it [wa]s incumbent on plaintiff to plead facts unequivocally to the effect that there was a mutual mistake” as to her entitlement to the defendant’s annuity upon his receipt thereof, and not upon his death. Ehrenzeller, supra. However, with the defendant’s contravention of the plaintiff’s allegations, the presence of a mutual mistake on this subject is negated. Id.

Moreover, the court's reformation of the property settlement agreement is undermined by the absence of clear, precise and convincing evidence of a mutual mistake. See Bugen, supra; Weightman v. Weightman, 342 Pa. 8, 20 A.2d 215, 217 (1941). Nor was the lower court able to place the litigants in their former positions once it concluded the presence of a mutual mistake of fact. Ehrenzeller, supra; Vrabel, supra; Sanders, supra.

Accordingly, we find the better approach to be to reverse the lower court’s order and remand for a procedendo whereby the parties may present evidence in support of their positions concerning the “pension/annuity” aspect of the Property Settlement Agreement. See, e.g., King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984).

Order reversed; case remanded with a procedendo; jurisdiction is not retained.

      . There were some interlineations handwritten on the agreement that were necessitated by and the product of last-minute “negotiations between the parties”. These changes were initialed by the parties and sworn to before the master as being consistent with their intentions. Also, the agreement was to be incorporated but not merged into the final divorce decree.

      . The lower court’s finding of mutual mistake was premised upon record evidence, i.e., no credibility determination or weight to be attached to a witness’ testimony was required inasmuch as no witnesses testified before the court below. Consequently, since the finding of “mutual mistake” was simply a deduction from other facts and the ultimate fact in question (which was an admixture of law and fact) is purely a result of reasoning, this Court may draw its own inferences and arrive at its own conclusions from the facts as established. See Bell v. Bell, 326 Pa.Super. 237, 473 A.2d 1069, 1070 (1984), citing In re Estate of McKinley, 461 Pa. 731, 734 n. 1, 337 A.2d 851, 853 n. 1 (1975).

      . We would point out that the cases reviewed indicate that an allegation of mutual mistake in a pleading, when left uncontradicted, is sufficient to sustain the claim. See, e.g., Vrabel v. Scholler, 369 Pa. 235, 85 A.2d 858 (1952); Sanders v. Lawn Mutual Insurance Co., 194 Pa.Super. 491, 168 A.2d 758 (1961).

      . Only on remand will this discrepancy in the accounts of the litigants be resolved by the trier-of-fact.

      . Between the filing of the court’s August 1, 1988, decree divorcing the parties and the defendant’s petition seeking enforcement of the property settlement, we had: 1) plaintiffs July 9, 1990, petition to enforce the property settlement agreement; 2) defendant’s July 17, 1990, petition to enforce settlement agreement; 3) three answers filed on July 16 and August 2, 1990, and March 4, 1991; 4) plaintiffs second petition to enforce settlement agreement filed April 16, 1991; 5) praecipe for argument dated May 2, 1991; and 6) briefs of the defendant and plaintiff in support of their positions filed June 21 and July 1, 1991, respectively.
      Not one of the documents recited above was made a part of the official record, albeit each is recited as having been filed and appears on the Monroe County — Domestic Relations Docket.
      Under our Rules of Appellate Procedure, those documents which are not part of the "official” record forwarded to this Court are considered to be non-existent, with the result that those claims raised therein are considered waived. See Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981). And, these deficiencies may not be remedied by inclusion in a brief in the form of a reproduced record. Id.

      Inasmuch as we find it necessary to remand this case because of the absence of sufficient evidence to support the lower court’s ruling of mutual mistake warranting reformation of the property settlement agreement, we have taken the liberty to review the substance of the reproduced record in the briefs submitted on appeal by the parties to aid us in our effort to reach a determination which is consistent with the law and facts in this case. This, we believe, may avoid any protracted resolution of the case on remand.
      However, given the need to remand because of the deficiencies in the record, we do not condone the pro forma review of reproduced records not appearing, initially, in the “official” record. See Rini, supra. We do so now because the result we reach would not be altered even if we were not to examine the reproduced record given the absence of clear, precise and convincing evidence of mutual mistake. Bugen v. New York Life Insurance Co., 408 Pa. 472, 184 A.2d 499 (1962).

      . Paragraph 9 reads:

        Pensions: Wife shall be entitled to the full spousal annuity provided by Husband’s government pension. Except for this annuity, Husband and Wife waive any interest which they may have in any pension, profit sharing, deferred compensation, or individual retirement accounts owned by the other.

      . We read the terms "pensions" and “annuity", as they appear in the Property Settlement Agreement, to be words of art which do not lend themselves to being labelled as "simple words of common usuage.” Contrast Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A.2d 332, 335 (1958); Black’s Law Dictionary at 82-83 (annuity) & 1021-22 (pension) (5th ed. 1979). These terms are more characteristic of a "latent” ambiguity, id., when the facts are examined.
      The juxtaposition of annuity and pension under the caption: "Pensions” does little to illuminate the meaning of either term. We, therefore, cannot construe them in their natural, plain and ordinary meaning since both are terms of art which need elaboration to understand their true scope. Id.

      The litigants would have been better served had their counsel taken the time to explicate the exact meaning of each term. As correctly noted by the lower court:
      The lawyers having failed in their duty, it now becomes the responsibility of this Court to provide appropriate relief.
      Accordingly, on remand, the court should receive testimony relating to the negotiations preceding and contemporaneous with the drafting of the final, acceptable version of the Property Settlement Agreement as reflective of the intentions of the parties on the question of pension/annuity. See In re Estate of Boyd, 394 Pa. 225, 146 A.2d 816, 820 (1958); Kohn v. Kohn, 242 Pa.Super. 435, 364 A.2d 350, 353-54 (1976).
      Because the Property Settlement Agreement preserves the Agreement as a whole, even though a portion thereof is challenged (see Paragraph 21), we see no reason to expand the inquiry on remand beyond the presentment of proof regarding the negotiations leading up to and contemporaneous with the “pension” distribution question. See In re Estate of Boyd, supra.
      Further, neither party seeks to invoke the remedies set forth in Paragraph 23 of the Agreement, e.g., rescission. Therefore, on remand, the scope of inquiry should not exceed the perimeters set forth herein.


author: CAVANAUGH, Judge:

text:
    612 A.2d 1010
    COMMONWEALTH of Pennsylvania v. Michael GAYNOR, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct 10, 1991.
    Filed July 16, 1992.
    Reargument Denied Sept. 24, 1992.

      Thomas R. Quinn, Philadelphia, for appellant.
    Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, McEWEN and OLSZEWSKI, JJ.
   CAVANAUGH, Judge:

Appellant, Michael Gaynor engaged in a gunfight with co-defendant Ike Johnson in which one child was killed and two were injured. The victims, along with other children, were in a small variety store when Gaynor and Johnson entered and began to shoot at each other. The children were in an unprotected area of the store between Gaynor at the front door and Johnson, who hid behind a video machine. The fatal bullet was fired by Johnson. One of the two wounds suffered by another child may have been caused by the single shot fired by Gaynor.

Gaynor was convicted of first degree murder, two counts of aggravated and simple assault, seven counts of recklessly endangering another person, and possession of an instrument of crime. He was sentenced to a term of life imprisonment and two terms of three to six years for the aggravated assaults, consecutive to the life sentence and concurrent with each other. No penalties were imposed for the other offenses.

Gaynor’s primary argument on appeal is that the Commonwealth failed to present sufficient evidence to prove first degree murder. He contends that since a shot fired from his gun did not inflict the fatal wound and since he did not act in concert with Johnson, there was no showing of specific intent to kill. Gaynor maintains that since he and Johnson were adversaries, and not accomplices or co-conspirators, no theory of liability exists which would legally justify his conviction of murder in the first degree. After thorough review of the record and careful study of the briefs and applicable law, we find that this argument of Gaynor is meritorious, and we are constrained to order an arrest of judgment on the first degree murder conviction.

Where a challenge to the sufficiency of the evidence is posed, the evidence must be viewed in the light most favorable to the Commonwealth, and all proper inferences favorable to the Commonwealth must be drawn. If the jury could have reasonably determined that all elements of the crime have been established beyond a reasonable doubt, sufficient evidence exists to support the conviction. Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988).

In this case, the issue is whether sufficient evidence of causation and specific intent to kill was introduced to sustain the murder conviction.

The elements of first degree murder are as follows: A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
“Intentional killing.” Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.

18 Pa.C.S.A. § 2502(a), (d).

A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.

18 Pa.C.S.A. § 2501(a).

In order to be guilty of first degree murder a person must possess a specific intent to kill. This specific intent is required for both a principal and an accomplice. Commonwealth v. Bachert, 499 Pa. 398, 406, 453 A.2d 931, 935 (1982). Cases in which a person is held responsible for the criminal acts of another require the existence of shared criminal intent, regardless of the grading of the homicide. See, Commonwealth v. Wilson, 449 Pa. 235, 238, 296 A.2d 719, 721 (1972), “All theories that are recognized under our law to hold one responsible for the criminal acts of another require the existence of a shared criminal intent.” Accord, Commonwealth v. Cox, 466 Pa. 582, 586, 353 A.2d 844, 846 (1976) (Where the evidence failed to establish that appellant, as one of three attackers, fired the shots causing death, the Commonwealth was required to establish he was an accomplice or co-conspirator to support a conviction.); Commonwealth v. Bachert, supra, (Absent direct evidence of which of two defendants in a first degree murder trial shot the victim, defendant’s words subsequent to the murder, established his culpability as an accomplice.); Commonwealth v. Coley, 350 Pa.Super. 549, 555, 504 A.2d 1286, 1289 (1986) (whether a defendant is the actual shooter is irrelevant where the circumstances of the killing allow the inference of shared criminal intent.)

All cases wherein shared criminal intent has been found have involved a finding that the actual slayer and non-slayer were accomplices or co-conspirators in the criminal offense charged. This court has found no case where a conviction of first degree murder has been upheld where there was no principal/accomplice or co-conspirator relationship between the defendants. Yet, in the instant case the Commonwealth did not proceed on a theory of vicarious liability. At trial and on appeal, it has been the Commonwealth’s position that Gaynor is liable as a principal for his own actions in the chain of events which led to the death of the victim. The Commonwealth focuses, nearly exclusively, on the element of causation, i.e., Gaynor’s acts as being a direct cause of death. It points to Gaynor’s pursuit of Johnson into the store, assault upon him in resuming a quarrel, and drawing his weapon as direct causes of the shootings. We have no difficulty accepting the proposition that, under the standard enunciated in Commonwealth v. Rementer, 410 Pa.Super. 9, 598 A.2d 1300 (1991), appellant’s conduct was sufficient to constitute a direct cause of death. Gaynor’s exchange of gunfire in a small confined space in which he knew defenseless children were trapped was an operative cause of death, nor were his actions “so extraordinarily remote or attenuated,” Rementer, 598 A.2d at 1305, that it would be unfair to ascribe criminal responsibility on the basis of causation.

The difficulty with the Commonwealth’s approach is that it ignores the element of specific intent. Causation of the death of another human being, without proof of specific intent to kill, does not satisfy the elements of first degree murder. Murder of the first degree requires an intentional killing, i.e., a willful, deliberate and premeditated killing. 18 Pa.C.S.A. § 2502(a), (d). The establishment of causation alone does not satisfy all elements of the crime of first degree murder.

The Commonwealth cites 18 Pa.C.S.A. § 303(b) in support of its causation argument:

(b) Divergence between result designed or contemplated and actual result. — When intentionally or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the intent or the contemplation of the actor unless:
(1) the actual result differs from that designed or contemplated as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or
(2) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a bearing on the actor’s liability or on the gravity of his offense.

We find that application of this section does not establish whether a killing was willful, deliberate or premeditated. On this element, the Commonwealth’s analysis is silent. This brings us back to the necessity to examine case law wherein the sufficiency of the evidence to prove specific intent is addressed. As the above discussion indicates, absent shared intent by accomplices or co-conspirators, there is no first degree murder liability for acts of another which result in death.

Appellant relies heavily on Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958), for his argument that a killing by one who is an adversary of the defendant may not legally be the basis for a murder conviction against the defendant. The Commonwealth dismisses Redline as inapplicable since it involved felony murder, rather than first degree, as this case. In Redline, a police officer killed one of two robbers, Redline’s co-felon, in response to shots fired by Redline and the decedent. The court ruled that Redline could not be convicted of murder of his co-felon, under a felony murder theory, since no malice could be imputed from one who did not act in furtherance of the felonious undertaking, i.e., the police officer.

Redline (and the cases discussed therein) is applicable to our disposition of the instant case to the extent that it illustrates the necessity to apply both the causation and intent elements to determine sufficiency of the evidence to support a murder conviction. In Redline, causation alone was not sufficient, it was necessary for the intent element, i.e., malice in felony-murder, to be also present. Where an intentional killing is alleged, the intent element requires a finding of willfulness, premeditation and deliberateness.

In summary, the evidence in this case is not sufficient to support a finding that Gaynor intentionally killed the victim. He was in an adversarial role to Johnson, who shot the bullet which killed the victim. Gaynor’s intent to kill or seriously injure Johnson precludes him from acting as an accomplice within the statutory definition, 18 Pa.C.S.A. § 306. Without concerted activity between Gaynor and Johnson, the issue of whose bullet killed the victim becomes relevant to the issue of specific intent. Therefore, sufficient evidence did not exist to convict Gaynor of murder in the first degree, and judgment of sentence on this charge must be vacated.

The Commonwealth argues that if the jury had found Johnson acted in self-defense, neither he nor Gaynor would be guilty of any degree of homicide under Gaynor’s arguments. We fail to see the basis for this statement since specific intent is a requisite element of first degree murder only. It appears from the record that the malice and/or recklessness required for third degree murder or manslaughter would be supported. However, it is not a function of the court to speculate as to the sufficiency of other homicide offenses, since Gaynor was only convicted of first degree murder.

The convictions of aggravated assault are proper since the evidence did not conclusively rule out Gaynor’s gun as the source of the bullet which struck one of the victims. Since his gun fired only one shot, he did not shoot the other injured child. The relevant portions of the definition offense are as follows:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon;

18 Pa.C.S.A. § 2702.

Appellant relies upon his argument relating to the absence of specific intent to support his claim for arrest of judgment. This is without merit, however, since recklessness is sufficient under § 2702(a)(1) where serious bodily injury is caused. We find that Gaynor did manifest extreme indifference to the value of human life where he exchanged gunfire in an enclosed area with small children present. Judgments of sentence for the two counts of aggravated assault were proper.

Gaynor’s last two arguments relate to the jury charge on culpability, causation, and transferred intent. Since we are arresting judgment of sentence on the murder charge, it is not necessary to decide these issues as to that charge. However, we hasten to add that we have reviewed the charge to the jury as a whole, See, Commonwealth v. Sparks, 351 Pa.Super. 320, 505 A.2d 1002 (1986), and we find it without legal error. The court correctly instructed the jury on the legal principles of causation and liability for an accomplice. Since the charge as a whole accurately states the law, a new trial on all charges on this basis is not warranted.

Judgment of sentence for murder in the first degree is reversed.

Judgments of sentence on all remaining charges are affirmed.

      . Also known as Donovan Grant. Johnson’s appeal at No. 321 Phi-la.1991 from charges including first degree murder arising out of this incident is affirmed this date by separate memorandum.

      . Compare, Commonwealth v. Potts, 388 Pa.Super. 593, 566 A.2d 287 (1989) (The Commonwealth may pursue theories of liability that link defendant and another to the commission of the crimes absent advance notice of accomplice liability.)


author: BECK, Judge. JOHNSON, Judge,

text:
    612 A.2d 1014
    COMMONWEALTH of Pennsylvania, Appellant, v. Gary DENNIS.
    Superior Court of Pennsylvania.
    Argued May 21, 1992.
    Filed July 20, 1992.
    Reargument Denied Sept. 9, 1992.

      Karen L. Grigsby, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Owen Larrabee, Asst. Public Defender, Philadelphia, for appellee.
    Before BECK, JOHNSON and HUDOCK, JJ.
   BECK, Judge.

This is an appeal by the Commonwealth from an order of the trial court suppressing 100 vials of cocaine and $497 in cash which were seized by the police following defendant’s arrest. The trial court found that the police officers seizing these items lacked probable cause to believe that defendantappellee had committed a crime, and that therefore their pursuit of defendant into a nearby dwelling and subsequent seizure of the items was unlawful. Appellant argues that the trial court erred in finding no probable cause and no justification to enter the building. We agree with Commonwealth-appellant that, based on the facts of this case, the trial court’s findings were legally erroneous. We therefore reverse the order to suppress and remand for further proceedings.

Our standard of review of the grant of a suppression motion is well established:

In reviewing the findings of a suppression court where the Commonwealth is appealing, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (plurality opinion). While we are bound by the lower court’s findings of fact if supported by the record, we are not bound by the lower court’s legal conclusions which are drawn from the facts of the case. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. den., 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).

Commonwealth v. Chase, 394 Pa.Super. 168, 575 A.2d 574 (1990), alloc. den. 527 Pa. 608, 590 A.2d 295 (1990), quoting Commonwealth v. Lagana, 517 Pa. 371, 375-76, 537 A.2d 1351, 1353-54 (1988).

The uncontroverted testimony presented at the suppression hearing establishes the following facts. On March 9, 1989, uniformed police officers Edward Bier and John Marynowitz were in a marked police car, patrolling the 1600 block of Sparks Street, in response to neighbors’ complaints that drugs were being sold at 1618 Sparks. (N.T. 4/16/91, p. 21). At 3:25 p.m., Officer Bier saw the defendant, Gary Dennis, and another man in front of the doorway of 1618 Sparks Street (N.T., p. 5, p. 15). Officer Bier saw the other man hand defendant an amount of U.S. currency, which defendant placed in his right pocket; defendant then reached into his left pocket and took out an object which Bier could not see. (N.T., p. 6).

Officer Bier got out of his patrol car and approached the two men, who turned and: ran into the house. (N.T., p. 8). Bier and Marynowitz chased the men inside; Bier followed defendant to a second-floor bedroom, where he saw defendant open a window and throw out a clear plastic bag containing a white, chunky substance. (N.T., p. 9). Bier grabbed the defendant and looked out the window to determine where the bag had fallen. (N.T., p. 9). At that point, Officer Marynowitz entered the room and frisked defendant, finding the money in defendant’s pocket, and defendant was placed under arrest. (N.T., p. 12-13). Bier then went downstairs and outside the house, where he recovered the plastic bag thrown out the window by defendant. (N.T., p. 12). The bag was found to contain crack cocaine. (R.R., p. 51a).

The court below found that because there was no probable cause to believe defendant had committed a crime at the time Officers Bier and Marynowitz chased him into the building, their entry into the building and seizure of the suppressed items was unlawful. We disagree. Warrant-less entry into a dwelling, and a subsequent seizure of items found therein, is permissible where the police are in “hot pursuit” of a fleeing felon. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Of course, the police must have probable cause to believe that the individual they are pursuing has committed a crime. Commonwealth v. Montgomery, 246 Pa.Super. 371, 371 A.2d 885 (1977). We find that the police had probable cause.

Probable cause exists where the facts and circumstances within the officer’s knowledge are sufficient to warrant a prudent individual in believing that an offense was committed and that defendant has committed it. Commonwealth v. Elliott, 376 Pa.Super. 536, 546 A.2d 654 (1988), alloc. den., 521 Pa. 617, 557 A.2d 721 (1989). In determining whether probable cause existed in a particular situation, a court will look not just at one or two individual factors, but will consider the “totality of the circumstances” as they appeared to the arresting officer:

When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element ... We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might ... Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act.

Commonwealth v. Simmons, 295 Pa.Super. 72, 440 A.2d 1228, 1234 (1982), quoting Commonwealth v. Kazior, 269 Pa.Super. 518, 410 A.2d 822, 824 (1979). As courts of this Commonwealth have repeatedly emphasized, determinations of probable cause “must be based on common-sense nontechnical analysis.” Commonwealth v. Gray, 509 Pa. 476, 482, 503 A.2d 921, 925 (1985).

Taking a common-sense view of the facts before us, we find that when Officer Bier, knowing of neighbors’ complaints that drug deals were occurring at 1618 Sparks, observed defendant at that address accept money in exchange for the transfer of a small item, and then bolt when he saw the police approaching, he had probable cause to believe that criminal activity had occurred. This case is similar to others in which tips to police were corroborated by such other facts as to create a reasonable belief of criminal activity. See, e.g., Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983) (anonymous tip regarding drug dealing corroborated by police observation of the specified location established probable cause); Commonwealth v. Hart, 266 Pa.Super. 190, 403 A.2d 608 (1979) (police had probable cause to arrest driver of a vehicle fitting description of a stolen truck when driver could not produce license or owner’s card); Commonwealth v. Jones, 506 Pa. 262, 484 A.2d 1383 (1984) (informant’s tip regarding drug dealing corroborated by police observation of defendant).

We find particularly compelling in this case the fact that residents of the area, individuals living on the 1600 block, made multiple reports to police of drug dealing at 1618 Sparks. Members of a particular neighborhood are uniquely well-qualified to observe what is going on in their community, and should be supported in reporting drug activity to the police. As our Supreme Court noted in Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981), regarding another citizen’s reports to police:

Unlike in the typical informant case, where there exists the potential that the informant is acting out of self-interest, here there is no basis to conclude that Quinones was motivated by anything other than good citizenship in making his disclosure____when an average citizen tenders information to the police, the police should be permitted to assume that they are dealing with a credible person in the absence of special circumstances suggesting that such might not be the case.

496 Pa. at 305, 436 A.2d at 1381. Accord, Commonwealth v. Singleton, Pa.Super.Ct. 1992, 603 A.2d 1072, 1074, quoting Commonwealth v. Gray, supra, 509 Pa. at 483-84, 503 A.2d at 925 (“such tips, particularly when supplemented by independent police investigation, frequently contribute to the solution of otherwise ‘perfect crimes’ ”).

The trial court’s differing conclusion in this case appears to stem from two basic errors of approach. First, the court failed to consider the “totality” of the circumstances known to the arresting officer; rather, the court listed each individual factor (the complaints, the exchange, the defendant’s flight) and cited cases finding that factor, in isolation, not to constitute probable cause. This is incorrect. “Facts insufficient to justify an arrest if considered separately may in combination supply probable cause.” Commonwealth v. Simmons, 295 Pa.Super. 72, 440 A.2d 1228, 1235, quoting Commonwealth v. Roscioli, 240 Pa.Super. 135, 138, 361 A.2d 834, 836 (1976).

Second, the court erred in appearing to use a higher standard for establishing probable cause than is appropriate. The court below discounted defendant’s exchange of money for some object and his flight into the house at 1618 Sparks Street as factors in establishing probable cause because of his belief that such behavior could have an innocent, rather than criminal, explanation. This is again incorrect. Probable cause exists when criminality is one reasonable inference; it need not be the only, or even the most likely, inference. See, e.g., Commonwealth v. Kendrick, 340 Pa.Super. 563, 571, 490 A.2d 923 (1985) (probable cause “does not demand any showing that ... a belief [of criminal activity] be correct or more likely true than false”); Commonwealth v. Moss, 518 Pa. 337, 344, 543 A.2d 514 (1988) (in assessing sufficiency of probable cause, the fact that other inferences could be drawn from circumstances does not demonstrate that inference that was drawn by police was unreasonable).

In sum, we find that the police officers here had probable cause to believe defendant had committed a crime at the point where he fled back into the house. Therefore, their entry into the house, and subsequent arrest and seizure of the suppressed items, were lawful.

Order granting motion to suppress is reversed. Jurisdiction relinquished.

JOHNSON, J., files a Dissenting Opinion.

JOHNSON, Judge,

dissenting:

The trial court found that the facts and circumstances within the officers’ knowledge, and those of which they had reasonably trustworthy knowledge, were not sufficient to warrant a prudent person in believing that Gary Dennis had committed or was committing an offense. I find no error of law or abuse of discretion by the trial court. As did the Honorable Mark I. Bernstein, I would conclude that probable cause to search or arrest was lacking at the time the officers pursued Dennis into his dwelling. The objects recovered as the result of the pursuit and seizure of Dennis were properly suppressed. I must therefore dissent.

Our Supreme Court has recently restated the rule to be followed when reviewing the grant of a suppression motion, as follows:

[W]here a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. If so, we are bound by those findings. Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.

Commonwealth v. DeWitt, 530 Pa. 299, -, 608 A.2d 1030, 1031 (1992), (citations omitted).

We are limited to the evidence on the record of the suppression hearing and the findings of the trial court. In reviewing the suppression court’s determination, we must view the facts in the light most favorable to the prevailing party. Compare Commonwealth v. Edwards, 528 Pa. 103, 105, 595 A.2d 52, 53 (1991); Commonwealth v. Robinson, 518 Pa. 156, 159, 541 A.2d 1387, 1388-89 (1988).

Moreover, the facts and circumstances establishing probable cause must be known to the police at the time of the arrest. Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134, 139 (1959); Commonwealth v. Rush, 459 Pa. 23, 26, 326 A.2d 340, 341 (1974). In this case, the Commonwealth contends, as it must, that the facts known to the officers at the time they pursued Dennis into the house were sufficient to permit a conclusion that a felony had already been committed, thereby establishing the exigent circumstances necessary to support their pursuit and entry. I must disagree.

When the suppression hearing testimony is reviewed in a light most favorable to Dennis, the prevailing party, it reveals the following facts. On March 9, 1989, uniformed police officers Edward Bier and Officer Marynowitz began an area patrol in the vicinity of the 1600 block of Sparks Street, at approximately 2:10 P.M. They were in a marked police car, patrolling the area, traveling up and down the streets, at times, stopping the vehicle.

Prior to leaving their District police station and arriving in their patrol area, the officers had received District complaints from their Captain that drugs were being sold from 1618 Sparks Street. The Captain had received these complaints “from the community.” Officer Bier, who was the only witness to testify at the suppression hearing, admitted that there were no radio calls or anything regarding drug sales on Sparks Street other than the Captain’s statement made to the officers at the station. There is nothing in the suppression hearing transcript to suggest that the description of persons, the time of drug activity, or other specifics were provided to the officers, by their Captain, by another police official, or by any other source.

At approximately 3:20 P.M., more than one hour after the area patrol had commenced, Officer Bier observed an unidentified white male talking to an unidentified black male, while both were standing outside the doorway of 1618 Sparks Street. Bier observed the unidentified white male hand the black male, who was later arrested and identified as Gary Dennis, money which Dennis then placed in his right pocket. Dennis was then observed taking something out of his left pocket, an object which Bier could not see. There is no direct testimony in the suppression hearing transcript as to what Dennis did with the unidentified object. Officer Bier testified as follows:

The defendant then went into his left pocket and took out an object, an object which I could not see but believed, based on what had transpired, to be a narcotics sale.

Motion to Suppress Transcript, April 16, 1991, page 6.

At this point, Officer Bier alighted from his patrol car and approached the two men. As Bier approached, both men on the porch looked in Bier’s direction and ran into the dwelling. Both Bier and Marynowitz chased the men into the house.

Í agree with my colleagues that the pursuing police officers must have probable cause to believe that the individual they are pursuing has committed a crime, in order to support the entry into the dwelling. I also agree that in determining whether probable cause existed, our task is not to look at one or two factors individually but to consider the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Commonwealth v. Rodriguez, 526 Pa. 268, 272, 585 A.2d 988, 990 (1991); Commonwealth v. Ellis, 354 Pa.Super. 11, 17, 510 A.2d 1253, 1256 (1986).

The standard which our court en banc repeated in Commonwealth v. Ellis, supra, as quoted from Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234 (1982), further quoting Commonwealth v. Devlin, 221 Pa.Super. 175, 178, 289 A.2d 237, 239 (1972), is fully applicable on this appeal:

[w]hen we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element____ We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might____ Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond-a-reasonable-doubt’ standard which we apply in determining guilt or innocence at trial.

Commonwealth v. Ellis, supra, 354 Pa.Superior Ct. at 17-18, 510 A.2d at 1256 (emphasis in original).

In the case now before us on appeal, the trial court aptly noted that there are really only three factors that could possibly coalesce in order to constitute probable cause: (1) the statement made by the Captain to the officers that drug sales were taking place at 1618 Sparks Street, without attribution of that information to any specific person or persons in the community; (2) two unidentified persons,— one white, one black — standing on a doorstep, while one man hands some money to the other man and the latter takes something out of his pocket; and (3) both men hurrying into the house after looking in Officer Bier’s direction.

My colleagues in their majority opinion adopt the Commonwealth’s characterization of the “District complaints” as “neighbors’ complaints”. This might make the subsequent pursuit, arrest and seizure more appealing, however, there is no direct testimony by Officer Bier that these were in fact “neighbors’ complaints.” Bier testified only as to “District complaints.” Motion to Suppress Transcript, supra, page 4. On cross-examination, the following exchange between defense counsel and Officer Bier occurred:

Q. The police report I referred to earlier says that you were patrolling from 2:10 p.m. to 3:30 p.m.; that you made a constant patrol in the 1600 block of Sparks Street due to Captain and neighbors’ complaints of drugs being sold in the area. Is that accurate?
A. Being sold from 1618 Sparks Street.
Q. From specifically 1618?
A. That’s correct.
Q. There was no radio call, or anything like that that would substantiate that claim, is there?
A. That’s correct. We received the District complaints from the Captain. The Captain receives it from the community, and we act on that.
THE COURT: Okay.
BY THE COURT:
Q. But, in fact, you received information only from the Captain?
A. That’s right, Your Honor.
Q. He told you whatever he told you?
A. Yes.
Q. He got his information from wherever he got it? A. Correct.
THE COURT: Next question.

Motion to Suppress Transcript, supra, pages 21-22. Defense counsel referred to a statement in a police report that characterized the reports as “Captain and neighbors’ complaints” but that police report was not introduced into evidence and Officer Bier did not expressly adopt that characterization in his testimony.

I also am unable to accept the majority’s assertion that “Officer Bier ... observed defendant ... accept money in exchange for the transfer of a small item, and then bolt when he saw the police approaching.” Majority at 434. The only possible testimony that could support a conclusion that an exchange had taken place was not what Bier observed, but rather what he supposed. Bier testified:

A. I observed a white male talking to this defendant here; at which time I observed the white male hand the defendant an amount of U.S. currency, at which time the defendant accepted that U.S. currency and placed it in his right pocket. The defendant then went into his left pocket and took out an object, an object which I could not see but believed, based on what had transpired, to be a narcotics sale.

Id., at page 6 (emphasis added). After an objection, based upon defense counsel’s contention that the conclusion as to a sale was purely speculative, and after argument and a ruling on that objection, Bier continued to testify as follows:

Q. After you made that observation and came to that conclusion, what action did you take?
A. I exited the vehicle and approached that property. As I was approaching the steps, both males looked in my direction and fled inside that property.
Q. What did you mean by the word “fled”?
A. Ran.

Id., at page 8.

Officer Bier never testified as to what Dennis may have done with the object which Bier could not see. From the record, we cannot conclude whether Dennis put the object back in his pocket, handed the object to another person, or threw it onto the ground. I fail to find sufficient articulable facts to support Officer Bier’s conclusion that a narcotics sale had transpired.

A police officer may arrest without a warrant where there is probable cause to believe that a felony has been committed and that the arrestee is the felon. Commonwealth v. Travaglia, 502 Pa. 474, 484, 467 A.2d 288, 292 (1983), cert. denied sub nom. Travaglia v. Pennsylvania, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850. Probable cause exists where the facts and circumstances within the knowledge of the officer are reasonably trustworthy and sufficient to warrant a person of reasonable caution in believing that the arrestee has committed the offense. Id.

The majority finds “particularly compelling ... the fact that residents of the area, individuals living on the 1600 block, made multiple reports to police of drug dealing at 1618 Sparks.” Majority at 1019. I am at a complete loss to understand how these assertions became “facts” for purposes of our review. As discussed above, there is absolutely nothing in Officer Bier’s direct testimony to support the majority’s claim that the District complaints came from “residents of the area.” The transcript is devoid of any testimony which would permit a reasonable conclusion that the complaints mentioned by the District Captain came from “individuals living on the 1600 block.” Nor did Officer Bier testify concerning “multiple complaints.”

I am unable to agree with my colleagues that Judge Bernstein, in granting the suppression- motion, made two basic errors of approach. When I view the totality of the facts available to the suppression court, they still are nothing more than anonymous complaints passed through the Captain to the beat patrolmen, a possible exchange where the officer could not see what had been exchanged and did not testify that the unseen object had, in fact, been passed between the unidentified men, and the movement of the two, then-unidentified men into a house after looking in the direction of the officers. When these facts are taken together, they fall far short of permitting a reasonable belief that a felony had been committed. Judge Bernstein was well aware of the appropriate test and, in my view, properly and conscientiously applied it.

Judge Bernstein did not “discount” the facts, as suggested by the majority. He did set forth the law. The majority seemingly relies on cases involving the validity of search warrants in reversing the order of the suppression court, e.g., Commonwealth v. Kendrick, 340 Pa.Super. 563, 490 A.2d 923 (1985); Commonwealth v. Jones, 506 Pa. 262, 484 A.2d 1383 (1984); Commonwealth v. Price, 318 Pa.Super. 240, 464 A.2d 1320 (1983). I have found the warrantless seizure cases cited and relied upon by the suppression court to be both appropriate and controlling. Commonwealth v. Greber, 478 Pa. 63, 385 A.2d 1313 (1978); Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391, 394 (1973); Commonwealth v. Vassiljev, 218 Pa.Super. 215, 275 A.2d 852 (1971); Commonwealth v. Hunt, 280 Pa.Super. 205, 421 A.2d 684 (1980). See and compare Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513 (1991) petition for allow. denied 608 A.2d 29 (1992).

Unless Officer Bier had probable cause to believe that a drug sale had been consummated and that Gary Dennis had participated in that felony, Bier had no authority for chasing Dennis and the other unidentified male into the house. When I consider all of the factors which can be gleaned from Bier’s testimony and their total effect, I am not convinced that it was reasonable to believe that a crime had been committed at the moment Bier exited his vehicle and approached the unidentified suspects.

Judge Bernstein reached the following conclusions: Although Officer Bier stated that the defendant “ran”, the testimony is clear that the defendant could only have traveled a few feet before he was into his house. No probable cause existed to justify Officer Bier’s chasing the defendant through his house. At the time Officer Bier chased Gary Dennis into his house, he and another man were acting in a normal manner on a front porch. There was nothing so unusual about their persons or in their conduct to indicate that they were engaging in criminal activity.

Opinion, Bernstein, J., December 2, 1991, page 6. Judge Bernstein’s factual findings are supported by the record. While this court may not be bound by the conclusions reached by the suppression court, I find them to be fully supported by the facts of record and consistent with Pennsylvania law.

I would affirm the order of the trial court which granted the motion to suppress physical evidence. I must, therefore, dissent.

      . This appeal is properly before this Court pursuant to the Commonwealth’s certification that the trial court’s granting of the motion to suppress has substantially handicapped its prosecution of the defendant. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 385, n. 5 (1985). Certainly, prohibiting introduction of the cocaine and money seized from defendant would seriously hamper the Commonwealth’s prosecution of defendant for possession of cocaine and possession of cocaine with intent to deliver. See Commonwealth v. Kendrick, 340 Pa.Super. 563, 490 A.2d 923 (1985).