author: KELLY, Judge.

text:
    662 A.2d 1102
    COMMONWEALTH of Pennsylvania v. Donald L. FELTY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 8, 1995.
    Filed July 25, 1995.

      Lawrence J. Hracho, Reading, for appellant.
    Iva C. Doughterty, Asst. Dist. Atty., Reading, for Com., appellee.
    Before McEWEN, TAMILIA and KELLY, JJ.
   KELLY, Judge.

In this opinion, we are called upon to determine whether a police officer may lawfully stop a motor vehicle for a violation of 75 Pa.C.S.A. § 4524(c) (windshield obstructions and wipers; other obstruction) where no evidence exists to show that the object hanging from the rear-view mirror of appellant’s motor vehicle appeared to materially obstruct, obscure, or impair the driver’s vision, or appear to constitute a safety hazard. We hold that the facts, as found by the suppression court, do not support the conclusion that the police possessed reasonable and articulable grounds to stop appellant’s car. Accordingly, we reverse the judgment of sentence entered by the trial court, and remand for proceedings consistent with this opinion.

This appeal involves a challenge to the suppression court’s order denying appellant’s motion to suppress evidence seized by police during a warrantless stop of appellant’s car for an alleged Motor Vehicle Code violation. The relevant facts and procedural history of this appeal are as follows. On February 6, 1994, at approximately 1:30 a.m., Officers Carr and Anderson of the Reading Police Department approached the appellant’s car in the 400 block of Miltimore Street in Reading. The appellant, Donald L. Felty, and two passengers were inside the car. The appellant’s car had no lights on and blocked a one-way street. The officers, in a marked patrol car, flashed their lights (both dome and headlights) signaling the car to move. The passengers looked back and then the car proceeded down the street and turned onto another street. The officers requested a license plate check and followed the car for four to five blocks. The plate checked out and the officers observed no violations of the Motor Vehicle Code. During this period, the occupants of the car made some movements in the car and looked back at the patrol car. Officer Carr then observed an object hanging from the rear-view mirror and, pursuant to 75 Pa.C.S.A. §§ 4524(c) and 6308(b), pulled the car over. After pulling the car over, the two officers approached the car and, after asking for the appellant’s drivers license and registration, noticed several bottles of beer (opened and unopened) inside the car and blood on the wrist of the front-seat passenger. The officers then asked for and received valid identifications from the passengers. At this time, the officers discovered several syringes on the car floor near the feet of the front-seat passenger. Officer Carr then asked the appellant if he had any drugs on him to which he responded “No”. Officer Carr then asked to search the appellant. The appellant consented and the officer found an empty shoulder holster, a speed loader with gun shells, several loose gun shells, two wooden boxes containing marijuana and hashish respectively, and $3,500.00 cash on the appellant’s person. The officers then searched the other passengers and the car. The officers discovered two loaded handguns in the car and several bullets and cartridges on one passenger’s person. Also, more syringes were found. The guns had been reported stolen in January, 1994. Appellant was then placed under arrest and charged with possession of a controlled substance, receiving stolen property and conspiracy.

On June 2, 1994, the appellant filed an Omnibus Pretrial Motion requesting suppression of evidence seized and dismissal of the charges pursuant to a Writ of Habeas Corpus. On July 13, 1994, the appellant’s pretrial motions were denied. On September 9,1994, the appellant waived his right to a jury trial and was adjudged guilty of possession of a controlled substance and receiving stolen property, and found not guilty of criminal conspiracy. The appellant was sentenced to nine (9) to twenty-three (23) months on the receiving stolen property conviction, to be followed by thirty (30) days probation on the possession of controlled substance conviction. The appellant filed a timely appeal claiming that the trial court erred in refusing to suppress the evidence.

On appeal, the appellant raises the following issues for our review:

1. AFTER SUCCESSFULLY SIGNALING A DOUBLE PARKED VEHICLE TO MOVE ON, AND AFTER FOLLOWING THE VEHICLE FOR FOUR TO FIVE BLOCKS DURING WHICH THERE IS NO OBSERVATION OF A VEHICLE CODE VIOLATION AND THE POLICE OFFICER HAS OBTAINED INFORMATION VIA RADIO THAT THE LICENSE AND REGISTRATION OF THE VEHICLE ARE VALID AND THAT THE CAR HAS NOT BEEN REPORTED STOLEN, DOES THE OFFICER’S CLAIM TO HAVE NOTICED SOMETHING HANGING FROM THE REAR VIEW MIRROR OF THE VEHICLE, WITHOUT MORE, CONSTITUTE A PRETEXTUAL STOP?
2. AFTER SUCCESSFULLY SIGNALING A DOUBLE PARKED VEHICLE TO MOVE ON, DOES A POLICE OFFICER HAVE SUFFICIENT ARTICULABLE AND REASONABLE GROUNDS TO SUSPECT A VIOLATION WHEN, AFTER FOLLOWING THE VEHICLE FOR FOUR TO FIVE BLOCKS HE OBSERVES NO VEHICLE CODE VIOLATIONS, HE HAS OBTAINED INFORMATION VIA RADIO THAT THE LICENSE AND REGISTRATION OF THE VEHICLE ARE CORRECT AND THAT THE CAR HAS NOT BEEN REPORTED STOLEN, BUT MOVEMENT IS NOTED AMONG THE CAR’S PASSENGERS AND THEY ARE SEEN TURNING AND LOOKING AT THE SQUAD CAR?

Appellant’s Brief at 5.

Our review of an order entered by the suppression court is governed by the following standards. We must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom. Commonwealth v. Burnside, 425 Pa.Super. 425, 625 A.2d 678 (1993). In reviewing the denial of a motion to suppress evidence, “we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Commonwealth v. Reddix, 355 Pa.Super. 514, 513 A.2d 1041 (1986). When the evidence supports the suppression court’s findings of fact on a motion to suppress, this Court may reverse' only when the legal conclusions drawn from those facts are erroneous. Commonwealth v. Quiles, 422 Pa.Super. 153, 619 A.2d 291 (1993) (en banc). However, we are bound by the trial court’s findings of fact only to the extent that they are supported by the record. Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513 (1991).

Commonwealth v. Wilson, 440 Pa.Super. 269, 274, 655 A.2d 557, 560 (1995).

The threshold question involved is whether Officer Carr, pursuant to 75 Pa.C.S.A. § 6308(b), possessed reasonable and articulable grounds to believe that the object hanging on the rear-view mirror of the appellant’s car violated 75 Pa.C.S.A. § 4524(c), thus, permitting him to stop the car for a Motor Vehicle Code violation. The appellant argues that there were no valid grounds for the officer to stop his car. Specifically, the appellant contends that the initial stop of his car constituted a pretextual stop. Moreover, the appellant contends that neither the object hanging from his car’s rear-view mirror nor the behavior of the passengers in his car provided the officers with reasonable and articulable grounds to stop his car.

The trial court held that the stop of appellant’s car was entirely permissible under the Motor Vehicle Code. (Trial Court Opinion at 8). Specifically, the trial court noted that Officer Carr, upon seeing the object hanging from the rear-view mirror, had articulable and reasonable grounds to suspect a violation of 75 Pa.C.S.A. § 4524(c). Id. at 5. Furthermore, the trial court determined that because the initial stop of the appellant’s car was proper, then the subsequent detention and search of the passengers and the car was valid because the officer ascertained facts which would reasonably lead him to believe that criminal activity was afoot. Id. at 8. We disagree.

Generally, irregular behavior is insufficient to justify a warrantless stop of an individual. Commonwealth v. Wilson, supra at 279, 655 A.2d at 563. This Court has held that “articulable and reasonable grounds to suspect” is the appropriate standard for determining whether a traffic stop was supported by a reasonable belief that the Motor Vehicle Code has been violated. Commonwealth v. McElroy, 428 Pa.Super. 69, 74, 630 A.2d 35, 38 (1993) (en banc); 75 Pa.C.S.A. § 6308(b). Applying this standard, this Court recently held that a police officer does not possess reasonable and articulable grounds to believe that an air freshener hanging on the defendant’s car’s rear-view mirror violated 75 Pa.C.S.A. § 4524(c). Commonwealth v. Benton, 440 Pa.Super. 441, 449, 655 A.2d 1030, 1034 (1995). The panel in Commonwealth v. Benton, supra, also concluded that § 4524(c) does not prohibit the hanging of an object from a car’s rear-view mirror, but rather, “prohibits the hanging only where such object serves to materially obstruct, obscure or impair the visibility of the driver or constitutes a safety hazard.” Id. at 445, 655 A.2d at 1032. Accordingly, this Court held in Commonwealth v. Benton, supra that a traffic stop will be deemed illegal when there is “no testimony whatsoever by the police officer that an object materially obstructed, obscured or impaired the driver’s vision, or appeared to do so, or how an object constituted or appeared to constitute a safety hazard.” Id. at 448, 655 A.2d at 1034.

In the instant case, Officer Carr lacked the necessary reasonable and articulable grounds to warrant a stop of appellant’s car. Officer Carr was unable to articulate a clear description of the object after several visits back and forth between the two cars. (N.T. Suppression Hearing June 29, 1994 at 21, 76-79.) Rather, Officer Carr only described the object in murky and vague language. Additionally, Officer Carr failed to include any mention or description of the object in his police report. Id. at 78. Most significantly, Officer Carr never testified that, pursuant to 75 Pa.C.S.A. § 4524(c), the object materially obstructed, obscured or impaired the driver’s vision, or constituted a safety hazard. See Commonwealth v. Benton, supra.

Thus, the suppression court erred in denying the appellant’s motion to suppress because the record does not support the finding that Officer Carr possessed sufficient reasonable and articulable grounds warranting a stop of appellant’s car. Consequently, because the suppression court’s finding is not supported by the evidence, its legal conclusion based on that finding, namely, that the stop was lawful, was erroneous. We hold that the stop was unreasonable and illegal, thus, tainting the evidence obtained subsequent to the stop. Accordingly, we reverse the judgment of sentence entered by the trial court and remand for a new trial, at which the illegally seized evidence may not be used.

Judgment of sentence reversed. Jurisdiction relinquished.

      . 75 Pa.C.S.A. § 4524(c) provides as follows: “No person shall drive any motor vehicle with any object or material hung from the inside rear-view mirror or otherwise hung, placed or attached in such a position as to materially obstruct, obscure or impair the driver's vision through the front windshield or any manner as to constitute a safety hazard.”

      . 75 Pa.C.S.A. § 6308(b) provides as follows: “Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number for the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.”

      . The arresting officer, Officer Felix Carr, testified that he initially stopped the car to warn the driver of the object hanging from the rear-view mirror. (N.T. June 29, 1994 at 75). However, it is unclear from the officer’s testimony whether he ever actually warned the driver about the object. Also, Officer Carr, after several trips between his patrol car and the appellant’s car, failed to ascertain a clear description of the object and only determined that it was "some kind of large object.” (N.T. June 29, 1994 at 78). Additionally, neither Officer Anderson, Officer Carr’s partner, nor Officer Santana, who arrived at the scene as a backup, testified at the suppression hearing.

      . 35 Pa.S.A. § 780-113(a)(31).

      . 18 Pa.C.S.A. § 3925(a).

      . 18 Pa.C.S.A. § 903(a).

      . At the suppression hearing, for example, Officer Carr described the item on the appellant’s rear-view mirror as "some kind of large object.” (Suppression Hearing, June 29, 1994, at 21). At the preliminary hearing, Officer Carr described the item as "a bandanna or chain or some kind of item hanging from the rear-view mirror.” (Preliminary Hearing, May 3, 1994, at 24). Later at the preliminary hearing, Officer Carr described the object as a "bandanna, choker chain, or necklace.” Id. at 26.
      We note that at trial, both parties referred to the notes of testimony from the preliminary hearing dated May 3, 1994. Additionally, the docket entries indicate that the transcript was filed. The notes, however, were not included in the certified record transmitted to this Court. It is appellant’s responsibility to ensure the presence of the transcript in the record prior to its certification for appeal. Commonwealth v. Osellanie, 408 Pa.Super. 472, 597 A.2d 130 (1991). Normally, we are constrained to refuse consideration of documents not included in the certified record transmitted to this Court. Id. See Pa.R.A.P. 1921. However, in the interest of justice and the given fact that neither party disputes the veracity of the notes of testimony from the preliminary hearing, we will disregard this defect because the omission does not affect our ability to engage in effective and meaningful review of the appeal. See Pa.R.A.P. 105(a).


source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    662 A.2d 1106
    Joseph and Elena TREU, Appellants, v. HARLEYSVILLE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued May 17, 1995.
    Filed July 25, 1995.

      James T. Vernile, Philadelphia, for appellants.
    John K. Conner, Philadelphia, for appellee.
    Before McEWEN, JOHNSON and BROSKY, JJ.
   JOHNSON, Judge.

On this appeal, we are asked to determine whether the Court of Common Pleas of Philadelphia, in relying upon Philadelphia Local Rule *212.2, erroneously imposed sanctions upon appellants. Because we have no record evidence that the trial court followed the procedures set forth in Rule *212.2, we reverse.

The facts can be summarized as follows: Joseph and Elena Treu (the Treus) purchased a homeowner’s insurance policy from Harleysville Insurance Company (Harleysville). In July 1992, the Treus submitted a claim to Harleysville for damage to their home caused by a storm. Thereafter, the Treus brought suit against Harleysville, claiming that Harleysville refused to pay them and failed to cooperate in a good-faith manner with the adjustment of the claim. Harleysville contended that the damage to the Treus’ home was the result of long-term wear and deterioration, which was not covered under the policy.

In January 1994, the case underwent arbitration, and the Treus were awarded a total of $13,426.30. Harleysville filed an appeal and demanded a jury trial. A trial was scheduled to begin on June 20,1994. In his Opinion in this matter, the trial judge, the Honorable Albert F. Sabo, stated that he met with both parties prior to trial and conducted two settlement conferences at which he asked them for their positions regarding settlement. See Trial Court Opinion, dated November 21, 1994, at 2. Judge Sabo further stated that the Treus valued the case at $13,426, while Harleysville valued it at $1,000 and neither party would amend its demand. Id, As a result, Judge Sabo recommended that the parties agree to a bench trial to avoid court costs amounting to approximately $2,500 per day. Id. The judge also stated that he informed the parties that he “would impose Rule *212[.2] sanctions on the party demanding a jury trial if the verdict is less than 80% of the value placed on the case.” Id. Thereafter, Harleysville agreed to a bench trial, but the Treus demanded a jury trial.

Following a seven-day trial, the jury found in favor of the Treus and awarded them $948.40. At the end of the trial, Judge Sabo entered sanctions against the Treus in the amount of $17,500 relying upon Rule *212.2. See N.T., June 28, 1994, at 7. At that time, the Treus’ counsel requested argument on this matter, but the court refused to hear it. Id. at 7-8. On July 6,1994, the Treus filed a Motion to Vacate Oral Sanctions Order Under Rule *212.2. Although he did not rule on this motion, Judge Sabo filed his trial work sheet on July 28,1994, which contained the following:

Jury verdict in favor of the [Treus] against [Harleysville] in the sum of $948.40.
The court enters judgment against the [Treus] in the sum of $17,500 on behalf of the court as sanction for court costs under Rule [*]212.2. [Harleysville] is directed to pay the $948.40 to the court as costs to be deducted from the $17,500.00 due by the [Treus] to the court.

The Treus now appeal.

On appeal, the Treus argue that the trial court erred and/or abused its discretion when it (1) imposed a $17,500 sanction that was entered in violation of the express provisions of Rule *212.2; (2) failed to consider the factors required by Rule *212.2 prior to imposing sanctions; and (3) refused to allow a hearing regarding the sanctions. The Treus further argue that (4) their due process rights were violated when Rule *212.2 sanctions were imposed without observance of the rule’s procedures; and (5) Rule *212.2 is an unconstitutional burden on the right to a jury trial.

In pertinent part, Philadelphia Local Rule *212.2 provides: Rule *212.2 Sanctions for Failure to Settle
(B) In any action tried by a jury in which the sole relief sought is money damages, the trial judge on his or her own motion or on motion of any party may direct the attorneys for the parties to appear for a settlement conference.
(D) If the trial judge determines that he or she can fairly evaluate the settlement value of the case, he or she shall recommend a settlement amount to the attorneys for the parties, and the recommendation with the parties’ agreement or non-agreement with it shall be recorded and made a part of the case file. [Emphasis added.]
(E) [I]f prior to the verdict the defendant has agreed to pay the amount recommended by the trial judge but the plaintiff has not agreed to accept that amount and the final judgment is at least twenty (20) percent less than the trial judge’s recommendation ... then the trial judge may, within ten (10) days after the final judgment, schedule a hearing to determine whether or not any sanctions shall be ordered against the party who had refused to settle.
(I) In the event the trial judge determines that sanctions shall be ordered against the party who refused to settle, he or she may order the party to pay to the County of Philadelphia all or part of the reasonable costs incurred as a result of the party’s refusal to settle....

First, we observe that the contentions raised by the Treus necessitate a review of the transcript of the settlement conference to determine if the judge did, indeed, follow the procedures set forth in Rule *212.2. “[I]t is black letter law in this jurisdiction that an appellate court cannot consider anything which is not a part of the record in the case.” Smith v. Smith, 431 Pa.Super. 588, 591, 637 A.2d 622, 623 (1993), citing McCaffrey v. Pittsburgh Athletic Assoc., 448 Pa. 151, 293 A.2d 51 (1972). Here, Judge Sabo described what occurred during the settlement conference. However, we cannot accept a trial court’s assertions in its 1925 Opinion as an accurate portrayal of what transpired at a conference or in a trial without having a transcript of the proceedings in the certified record. See Commonwealth v. Young, 456 Pa. 102, 115-16, 317 A.2d 258, 264-65 (1974); Hatalowich v. Bednarski, 315 Pa.Super. 303, 306, 461 A.2d 1292, 1294 (1983) (“a fact cannot become of record by virtue of its inclusion in the trial court opinion”); Commonwealth v. Ingber, 516 Pa. 2, 8 n. 3, 531 A.2d 1101, 1103-04 n. 3 (1987). Furthermore, there is nothing in the certified record to show that a settlement conference ever took place. As a result, there is no indication that Judge Sabo recommended a settlement amount to the parties’ attorneys, and such a recommendation was never recorded and made a part of the case file as required by Rule *212.2(D). On this basis alone, we must reverse the order that imposed a sanction on the Treus.

Moreover, Judge Sabo’s error was compounded by his failure to comply with the requirements of Rule *212.2(E). The judge imposed a $17,500 sanction upon the Treus. However, under subsection E, if the final judgment is at least 20% less than the trial judge’s recommendation, the judge may schedule a hearing to determine whether sanctions shall be ordered. Accordingly, because Judge Sabo never recommended a settlement amount, he could not determine whether the final judgment was at least 20% of that amount. Further, even if the final judgment was at least 20% less than the recommendation, the trial judge was not empowered to order sanctions at that time; rather, he had the discretion to schedule a hearing to determine whether sanctions should be imposed. Again, the order clearly must be reversed.

In addition, we acknowledge that we are foreclosed from deciding issues not before us on appeal. Cf. Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985) (Superior Court’s scope of appellate review is exceeded when issue is considered sua sponte); Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975) (same). However, we have serious reservations regarding a rule that gives a trial judge the power to enforce an order that includes monetary sanctions for failure to accept a settlement. In the present case, Judge Sabo ordered the Treus to pay the court $17,500 as a sanction under Rule *212.2. Article 5, § 10(c) of the Pennsylvania Constitution gives our supreme court exclusive power to establish rules of procedure for all state courts. While the supreme court can delegate certain supervisory and administrative powers under 42 Pa.C.S. § 1721, we have found nothing to support an assertion that it has granted to the common pleas courts the type of power which is manifest in Rule *212.2. We also believe that there is a potential for misuse or abuse of power in a rule that permits a trial court to impose sanctions where the money flows directly back to that authority. Further, Rule *212.2 purports to supplement Pa.R.C.P. 212. However, a review of both rules reveals that they are not related in any way. Thus, we would seriously doubt whether the trial court has the authority to seek to enforce such a rule.

Because we have no record evidence that a settlement conference occurred or that the trial judge followed the procedures set forth in Philadelphia Local Rule *212.2, we reverse the order that imposed a $17,500 sanction upon the Treus for court costs pursuant to that rule.

Order Reversed.

McEWEN, J., concurs in the result.


author: CERCONE, Judge.

text:
    662 A.2d 1109
    E.A.L., Sr., and J.L.L., Appellants, v. L.J.W.
    Superior Court of Pennsylvania.
    Submitted March 28, 1995.
    Filed July 25, 1995.

      Michael R. Lynn, Bloomsburg, for appellants.
    George O. Wagner, Danville, for appellee.
    Before BECK, TAMILIA and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from an order of the lower court awarding primary custody of two minor children to appellee. We vacate the trial court’s order and remand for further proceedings.

J.L., one of the two subjects of this custody action, was born on April 22, 1981. At the time of J.L.’s birth, her mother (appellee) was sixteen years old. Appellee gave birth to a second child, J.R.L., the other subject of this action, on March 3, 1983. From the time of their births until August 7, 1992, J.L. and J.R.L. resided at the home of their grandparents (appellants). Appellee did not marry the fathers of either of the two children. Subsequently, however, appellee married and had three more children. J.L. and J.R.L. continued to live with appellants until August 7, 1992. On that date, appellee picked up the children from their grandparents on the pretense of going on a weekend camping trip. Appellee never returned the children to appellants’ home. At the time of this occurrence, J.L. was eleven and J.R.L. was nine. Since August 7, 1992, appellee has retained primary physical custody of the children.

Appellants filed a habeas corpus petition for return of the children on September 23, 1992, in which they alleged that they had been “in loco parentis” to the children since April 9, 1984. The trial court dismissed appellants’ petition on the basis that it failed to conform to Pa.R.C.P., Rule 1915.15(a), which sets forth the form of a complaint for custody. On October 6,1992, appellants filed a complaint for custody. The lower court referred the matter to Michael Dennehy, Esquire, Special Master, for further proceedings “upon receipt by the Court Administrator of Proof of Service.”

Mr. Dennehy filed a report to the court on October 30,1992, in which he recommended that primary physical and legal custody of the children be granted to appellants, with partial physical custody to appellee on alternating weekends, holidays, and in the summer. The master found that the sudden removal of the children from their grandparents’ home was not in their best interests. (Master’s Report, October 30, 1992). The lower court issued an order making the recommendations of the master an interim order for ten days or until exceptions were filed.

On November 12, 1992, appellee, by counsel, filed “Preliminary Objections Motion for Special Relief,” asserting that the court and master lacked jurisdiction over appellee because she had not received personal service of the October 6, 1992 complaint in custody. The lower court granted appellee’s motion to dismiss, vacated the interim order based on the master’s recommendations, and declared them a nullity.

On December 1, 1992, the lower court reinstated the complaint for custody upon appellants’ request. The sheriff personally served the complaint on appellee. Again, the lower court referred the case to special master Dennehy who. filed a report on December 31, 1992. In this report, the master found that appellants did not have standing to maintain the action for custody. However, because of the “long residency” of the children with appellants, the master recommended that appellants have liberal visitation. Appellants filed exceptions to the master’s report on January 6, 1993. On January 12, 1993, the lower court made the master’s report an interim order.

The lower court ordered home studies of both parties, and conducted a hearing in the matter on October 6, 1992. The lower court issued its opinion and order, per Naus, J., on December 13, 1993. The trial court found that appellants did have standing to seek custody of the children under the doctrine of in loco parentis, and granted primary custody to appellee with partial custody in appellants. The stamp date on the lower court’s opinion indicates that it was not filed until January 11,1994. From that order, appellants file this timely appeal, in which they raise the following issue: “Given the totality of evidence adduced at the custody hearing did the lower court err as a matter of law in not awarding primary custody of the two minor children to their grandparents?”

Our scope of review of a trial court’s order of child custody is of the broadest type. McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (1992).

In reviewing a custody order, an appellate court is not bound by findings of fact made by the trial court which are unsupported in the record, nor is it bound by the court’s inferences drawn from the facts. However, on issues of credibility and weight of the evidence, an appellate court defers to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Only where it finds that the custody order is “manifestly unreasonable as shown by the evidence of record ...” will an appellate court interfere with the trial court’s determination. Therefore, unless the trial court’s ruling represents a gross abuse of discretion, an appellate court will not interfere with its order awarding custody.

Robinson v. Robinson, 538 Pa. 52, 55-56, 645 A.2d 836, 837-38 (1994). The paramount concern in a child custody case is the best interests of the child. McMillen v. McMillen, supra, 529 Pa. at 202, 602 A.2d at 847. A determination of the best interests of the child is based on consideration of all factors which legitimately have effect upon the child’s physical, intellectual, moral and spiritual well-being. Wiskoski v. Wiskoski, 427 Pa.Super. 531, 629 A.2d 996 (1993), appeal denied, 536 Pa. 646, 639 A.2d 33 (1993). The court in a custody action has the obligation to consider all relevant factors that could affect the child’s well-being. Clapper v. Clapper, 396 Pa.Super. 49, 578 A.2d 17 (1990); DeNillo v. DeNillo, 369 Pa.Super. 363, 535 A.2d 200 (1987).

In a custody dispute between a parent and a non-parent, the natural parent has a prima facie right to custody of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). The natural parent’s right may be forfeited if convincing reasons appear that the child’s best interests will be served by awarding custody to someone else. Id. at 285, 376 A.2d at 654. However, this standard

is not to be construed as precluding a custody award to a non-parent, absent a demonstration of the parent’s dereliction ... [T]he standard seeks only to stress the importance of parenthood as a factor in determining the best interests of the child. However, other factors which have significant impact on the well being of the child can justify a finding in favor of the non-parent, even though the parent has not been shoum to have been unfit.

Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 328, 421 A.2d 157, 161 (1980) (emphasis added). In a dispute between a parent and a non-parent, the burden of proof and of persuasion is on the non-parent, and that burden is heavy. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). However, the hearing court may award custody to a third party “where the best interests of the child will be clearly served by such a decision.” Albright, supra, 491 Pa. at 326, 421 A.2d at 160.

The lower court heard the following testimony, inter alia, at the hearing. Appellant J.L.L. (grandmother) testified that after the births of J.L. and J.R.L., appellee would leave home for months at a time. N.T., October 6, 1993, at 7. When she was away, appellee did not communicate with appellants. Id. at 8. The children’s grandmother testified that when appellee did return home to Bloomsburg, she would stay a couple of days at appellants’ home and then would go away. Id. at 8. Appellants themselves took the children to church, Sunday school, bible school, and “five-day club.” Id. at 16. They also went to skating parties and school activities. Id. During the time the children lived with appellants, appellee would take them for weekends at the most. Id. at 25.

Appellant E.L. (grandfather) testified that he brought both J.L. and J.R.L. home from the hospital. His daughter, appellee, left almost immediately after the children were born. Id. at 54. The grandfather indicated that he and his wife took the children to church and Sunday school, and gave them clothing, shoes, socks, medical care, and food. He stated that both children indicate that they do not want to return to their mother’s home when their visitation with their grandparents ends. Id. at 65.

Sabrina Williams, Children and Youth Administrator for Columbia County indicated that appellee’s family had been referred to her agency. Id. at 67-68. She stated that a number of case workers had been involved with the family during a short period of time due to transitions in the agency. Id. at 69. Ms. Williams testified that there was a notation in the file indicating that the parents and grandparents disagreed as to where the children should be and the parenting techniques used by the respective family members. Id. at 70. She indicated that based on her reading of the file, that the disagreement between the families was a stress on the children. Id. At the time of Ms. Williams’ testimony, the file on appellee’s family remained open due to the number of transitions that had taken place within the Children and Youth agency and the ongoing custody dispute between the parties. Id. at 69.

Mary Mordan, a former caseworker with Montour County Children and Youth Services, indicated that she had been involved with appellee’s household. Ms. Mordan talked to appellee and her husband about discipline and housing conditions. Id. at 77. She indicated that the agency offered a parenting course which appellee and her husband attended sporadically. Id. Ms. Mordan found no substantiation to any reports of abuse in the family. Id. She stated that supervision was a “big issue” in appellee’s household. The agency was also interested in the issue of alcohol consumption on the part of appellee’s husband. Id. at 80. She testified that during the times she was in appellee’s home, she did not observe any harsh discipline or excessive drinking. Id. at 81.

L.J.W., appellee, testified that the allegations by J.L. that appellee’s husband had raped her, had been determined unfounded. Id. at 115. Appellee indicated that in December, 1992, she threw a pan at her husband and J.L. called the police to report the incident. Id. at 120. She testified that after J.L.’s birth, she (appellee) lived with her parents. Id. at 123. She stated that she would go away on weekends. Id. at 124. Appellee testified that in her younger years, her children were better off with her parents. Id. at 125.

In 1984, appellee married J.W. Id. They moved to Mill Street and appellee talked to appellants about having her children back. She testified that appellants said that when she got a stable house and income, she could have them back. Id. at 125-26. The home on Mill Street had only one bedroom. Id. Appellee and her husband then moved to Catawissa for two years, and to Hess’ Trailer Court for three years. Id. at 128-29. Next, they moved to Van Kirk Street. At that point, appellee asked her parents again for her children. Id. at 130. The parents refused because she didn’t have enough income. Id. Appellee then sought legal help for return of the children. Id. at 131.

Appellee testified that the children are supposed to keep their rooms clean and take turns doing the dishes. She indicated that her husband hit the kids once. Id. at 140. Appellee also stated that when they lived in Danville, J.L. and J.R.L. went to church with two neighbor girls, and since they had moved to the Southern School District, they had gone to church once. Id. at 145.

J.L. testified it takes her a while to go to sleep because her mother and stepfather “yell” every night. Id. at 166. They also swear a lot, and her stepfather drinks beer. Id. The swearing bothers her, as does the parents’ smoking. Id. at 166-67. On the weekends, they eat once a day. Id. at 168. She stated that she doesn’t like her Mom because “she took us away from our Gram we have been with our gram for like 11 years.” Id. at 169-70. She stated that she doesn’t like her stepdad “since he raped me when I was nine years old.” Id. at 173. She states that her mom “won’t do nothing with us.” Id. at 175. She has seen her stepdad drunk “lots of times.” Id. at 176. Her mother and stepfather have “dirty movies ... all over the house.” Id. at 179.

J.R.L. testified that he visits with his grandparents every other weekend and missed his visit with them “only about once.... because I didn’t do my chores.” Id. at 188. He does not talk on the phone to his grandparents that often. Id. He does not call them; they usually call him. Id. J.R.L. indicated that his stepfather drinks “about half a case [of beer] every night.” Id. at 192. He testified that he wanted to “go back with my Gram ... because she treats us a lot better.” Id. at 198-99. J.R.L. indicated that there are dirty movies in the house but he does not want to see them. Id. at 199-200. His stepfather had dirty magazines, but he got rid of them. Id. at 200. J.R.L. stated that if he gets back with his Gram, he just wants to stay there. Id. at 201. He does not want “to go through this again,” and he hopes to get back with his “Gram.” Id. His mother and stepfather always speak in foul language and this bothers him. Id. at 202. His stepfather picks him up by the shirt and throws him on the floor for the fun of it, and he (J.R.L.) does not like it. Id. at 203.

In the instant case, the lower court made the following findings:

1. Based on home studies, either home was adequate for the raising of children.[]
2. Appellee’s husband has had some questionable behavior “involving misuse and abuse of alcohol, and physically assaultive behavior.” Appellee and her husband attended “many” of the parenting classes offered by Children and Youth Services.
3. Although mother was not a fit parent when she was young, she has changed her lifestyle, and has attempted to “involve the children in religious instruction by taking them to church and involving them with Child Evangelism Fellowship.”
4. There is no evidence that appellee is an inadequate mother for the three half siblings of J.L. and J.R.L.
5. Appellee claimed that she had requested custody of her children from appellants but they had always refused to transfer custody to her.
6. The fact that the children’s grades are not as good as last year relates to the custody dispute and not to the environment of appellee’s home.
7. Problems have occurred as a result of appellee’s husband’s remarks and threats, his refusal to allow phone calls between the children and appellants and the minimized number of visits with appellants as a result of appellee’s and husband’s behavior.
8. Some of the responsibility for the problems in the custody arrangement are the fault of the appellants.
9. Children and Youth will continue to be involved in the case to assist in counseling parents and children, to foster parenting skills, and to assist husband in controlling his behavior.

Trial court opinion, at 3-5. The lower court provided the following reasoning for its decision: (1) the law weighs heavily in favor of mother, the natural parent; (2) the law favors the raising of siblings together including half-siblings; and (3) the law permits modifications of custody arrangements at any time that change is appropriate. For these reasons, the lower court awarded custody to appellee, mother.

Appellants allege that as a matter of law, the trial court erred in awarding custody to appellee based on the totality of the evidence adduced at the hearing. As we indicated previously, under our standard of review in a case such as this, we are not bound by findings of fact of the lower court which are not supported by the record. McMillen v. McMillen, supra, 529 Pa. 198, 602 A.2d 845. Nor are we bound by the inferences which the trial court draws from the facts. In reviewing the findings of the lower court, we conclude that several of them are unsupported by the record.

The lower court indicated that appellee and her husband had attended many of the parenting classes offered by CYS. Our review of the record indicates that the appellee’s and her husband’s attendance at these classes was sporadic. The record shows that their combined attendance at the classes was only fifty percent.

The trial court found that although mother was not a fit parent when she was young, she has changed her lifestyle, and has attempted to involve the children in religious instruction. The record does not support a finding that mother has attempted to involve her children in religious instruction. She testified that she took them to church once and the children did not like it. There was no evidence that she has subsequently taken them to church. As to mother’s change in lifestyle, the record shows mother and stepfather regularly view “dirty” movies. There was evidence that these films are physically available to the children. There was also an allegation that appellee and her husband have taken off their clothes in front of the children. N.T., October 6, 1993, at 181. Evidence was offered which could have corroborated the allegation. Id. at 63-65. Also admitted was evidence of the use of foul language by appellee and her husband in the children’s presence. Although the trial court found that mother has changed her lifestyle, there is substantial evidence that the home environment has many unwholesome aspects.

The trial court found that the drop in the children’s grades relates to the custody dispute and not to the environment in mother’s home. There is insufficient evidence in the record for this conclusion. Both children testified as to aspects of mother’s home with which they were uncomfortable. J.R.L. also testified that he did not want to “go through this again.” The trial court itself found that problems had arisen in the home as a result of the stepfather’s behavior. CYS was aware of the stepfather’s alcohol problem and felt that it was an issue. Also, it was obvious from the record that the transition to their mother’s home from their grandparents’ had been a difficult one for the children. The trial court did not obtain evaluations of the children which would support a conclusion that the cause of their lower school grades was solely the dispute between the parties and had nothing to do with the children’s home environment or their abrupt transition to their mother’s home.

We also disagree with the reasons given by the lower court for its decision. The lower court cited In re Hernandez, supra, under which the natural parent has the prima facie right to custody unless convincing reasons to award custody to a third party are shown. However, as we have indicated, the Hernandez standard does not preclude the trial court from considering the best interests of the child. If convincing reasons are present indicating that the children’s best interests will be served by an award to a third party, then the third party may be awarded custody. Albright v. Commonwealth ex rel. Fetters, supra at 491 Pa. 320, 421 A.2d 157; Cardamone v. Elshoff, 442 Pa.Super. 263, 659 A.2d 575 (1995) (evidence showed convincing reasons supporting trial court’s award of primary physical custody of fifteen year old daughter to her maternal aunt over child’s mother’s claim).

For example, in Albright, a custody dispute arose between the father of two of three siblings and the children’s maternal grandparents after the children’s mother died. The children had lived with the maternal grandparents off and on throughout their lives. The Superior Court affirmed the trial court’s award of primary custody to the grandparents. 491 Pa. at 328, 421 A.2d at 160. The court reasoned as follows:

In this case, the hearing court after conceding that the father had entered into an apparently stable second marriage and could provide a good home, nevertheless concluded that the maternal grandparents had presented sufficiently compelling reasons to justify the award of custody to them. Those factors which were deemed to be persuasive were that the children had been exposed to chaotic conditions throughout their lives as a result of the marital difficulties between the parents and that the home of the grandparents had proven to be the single stabilizing factor in their lives. In Ellerbe [v. Hooks], we held that the removal of a child from a secure and familiar environment was the type of factor that could justify the award of the child to a grandparent over the claim of a parent. The adverse effect upon the development of youngsters caused by the disruption of an established stable relationship has been well recognized in this area of the law.

Id. at 326-27, 421 A.2d at 160 (citations omitted).

In Ellerbe v. Hooks, supra, at 490 Pa. 363, 416 A.2d 512, the father sought custody of his eleven year old daughter who had been living with her maternal grandmother. The lower court awarded custody to the grandmother. On appeal, the Superi- or Court reversed, holding that the trial court had failed to give the parent-child relationship sufficient consideration. The Pennsylvania Supreme Court reversed and reinstated the award of custody to the maternal grandmother. The Supreme Court recognized the importance of the blood relationship between parent and child. In this respect, the court agreed with the decision of the Superior Court. 490 Pa. at 370, 416 A.2d at 514-15. The court, however, found that the Superior Court erred in awarding custody to the father upon the facts of that case. The court reasoned as follows:

[0]ur review of the record convinces us that the trial court’s determination may still stand. At the time of the hearing in this case, Carla, then eleven years old, had been living with her grandmother since she was less than two years old. Carla had developed stable and happy relationships with her grandmother, with neighborhood Mends and, importantly, at school. In these circumstances we are unwilling now to disturb the trial court’s order granting custody of Carla to her grandmother.

Id. at 371, 416 A.2d at 515.

In both Ellerbe and Albright, the court awarded custody to the grandparents on the basis that both of those homes provided the children with secure and stable relationships and an environment which also provided familiarity and security. These factors were found to be convincing enough to defeat the natural parent’s right to custody. In the instant case, we have a quite similar situation. J.L. and J.R.L. had resided with their grandparents for a substantial number of years. It is apparent from the testimony at trial that both children were happy with the arrangement. The trial court, however, completely failed to evaluate this factor.

Many cases have recognized the importance of stability in a child’s development and adjustment. See R.A.R. v. T.M., 434 Pa.Super. 592, 596, 644 A.2d 767, 769 (1994) (“changes in custody can seriously disrupt a child’s life”); Fisher v. Fisher, 370 Pa.Super. 87, 92, 535 A.2d 1163, 1166 (1988) (“courts have long recognized the importance of a continuing and stable custodial relationship with a parent which satisfactorily serves the child’s needs”); Gonzalez v. Gonzalez, 337 Pa.Super. 1, 486 A.2d 449 (1984) (in determining which placement of child would serve child’s best interests, one vitally important factor to be considered is effect upon child of removal from a known physical environment with an established parental figure); English v. English, 322 Pa.Super. 234, 469 A.2d 270 (1983) (this court has noted the importance to a child’s development of a stable relationship with an established parental figure and a known physical environment). In Commonwealth ex rel. Bankert v. Children’s Services, 224 Pa.Super. 556, 307 A.2d 411 (1973), the court discussed this concept in depth in a case where an adoption agency sought return of a nine year old child from her foster parents:

Of extreme significance ... is the fact that Charlene has been in the care and custody of appellants throughout her development from an infant of three weeks to a child of nine years. After such a period of time, a child “becomes strongly attached to those who stand in parental relationship to it and who have tenderly cared for it. Its bonds of affection have become so strong that to sunder them suddenly may result not only in the child’s unhappiness, but also in its physical injury.... Nothing could be more cruel than the forceable separation of the child from either its real or foster parents by whom it has been lovingly cared for and to whom it is bound by strong ties of affection.” “The emotional disturbance to a child that would threaten from its being removed summarily and permanently from familiar and agreeable surroundings and associations, incident to the only parental control and supervision it has ever known could have a very harmful effect on the child’s whole life.” ... The continuous custody of Charlene with appellants for all but the first three weeks of her life, and the emotionally devastating effects which could result from a forced separation are matters which should be seriously weighed in determining the child’s best interests.

Id. at 561-62, 307 A.2d at 414 (citations omitted).

The stability a child has enjoyed in a long-standing custody arrangement, and the happy relationships a child has developed with a parental figure and others may be decisive factors in a custody decision. See R.A.R. v. T.M., supra, 434 Pa.Super. 592, 644 A.2d 767; In re David L.C., 376 Pa.Super. 615, 546 A.2d 694 (1988) (award of child custody to great-grandmother was proper where great-grandmother had been providing child with home life, stability, care, and natural love and bonding had taken place between child and great-grandmother); Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1985) (attachment of child to those standing in loco parentis and who have tenderly cared for him can in some instances be controlling in custody decision); Albright, supra; Ellerbe v. Hooks, supra; Wrecsics v. Broughton, 285 Pa.Super. 90, 426 A.2d 1155 (1981) (in dispute between grandparents and parents, court awarded custody to grandparents who had cared for child for all but two of her fourteen years and with whom child had established firm familial and community ties). In a case which presents the possibility of a change in custody, it is incumbent on the court “to fully discuss the possible effect on the child of the proposed transfer of custody.” English v. English, 322 Pa.Super. at 240-41, 469 A.2d at 273. Accord R.A.R. v. T.M., supra. In the instant case, the lower court failed to discuss and consider this important and obvious factor.

In addition, the lower court did not address the preferences of the children as expressed in their testimony. The preference of children in a custody case, although not controlling, is a factor to be carefully considered, as long as it is based on good reasons. Constant A. v. Paul C.A., 344 Pa.Super. 49, 496 A.2d 1 (1985); Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981). As children grow older, more weight must be given to the preference of the child. Grieb v. Driban, 312 Pa.Super. 371, 458 A.2d 1006 (1983); Palmer v. Tokarek, 279 Pa.Super. 458, 421 A.2d 289 (1980). Here, the children, ages 12 and 10 at the time of the hearing, expressed good reasons for their preference for their grandparents’ home. In the mother’s home, there are dirty movies, foul language, yelling, sexual activity by the parents within the children’s hearing, smoking and drinking. There is also the stepfather, who yells at them a lot, who picks up the boy and throws him on the ground “for fun,” who may have fondled his stepdaughter, who drinks regularly and to excess, and who limits contact with the grandparents. There is also a deficiency in the number of meals served. In contrast, in the grandparents’ home, the evidence showed that the children were taken to church and were involved in activities, and were prepared regular meals. In the grandparents’ home, the grandparents did not smoke, drink to excess, watch dirty movies, use foul language, etc. The children’s preference for their grandparents’ home was rational, and showed an innate preference for a more “wholesome” atmosphere. The trial court erred in failing to explain why such preferences were rejected.

The trial court also relied too heavily on the policy of the law which favors the raising of siblings together. That policy is only one factor which the court must consider and it is not controlling. Tobias v. Tobias, 248 Pa.Super. 168, 374 A.2d 1372 (1977) (policy that it is preferable for siblings to be raised together was only one of factors necessary to determine best interests of child); In re Russo, 237 Pa.Super. 80, 346 A.2d 355 (1975) (although it is preferable as general rule to have siblings raised together, this rule must yield to paramount principle that best interests of child must be determining factor in custody case). In this case, the trial court placed great reliance on this factor to the exclusion of other equally important ones.

In a custody action, the particular circumstances of the case must be considered. Tobias v. Tobias, supra. Each case is to be decided on its own individual facts. In this case, the trial court failed to consider many significant facts peculiar to this case, including the children’s long standing residence with their grandparents, and the effect on them of an abrupt and unplanned transition to their mother’s home. In this case, it appears the children’s mother was incapable of caring for them during her youthful years because of her own immaturity. The grandparents filled in for the void left by the mother’s absence and attention to other matters. During the time that the mother was attempting to mature and establish a stable lifestyle, the children were living and growing in the grandparents’ home, being nurtured by the love of the grandparents and being provided for by them. When mother reached a point in her life where she felt capable of assuming her responsibilities for her children, she “took” them from their grandparents’ home, which had in essence become their home. Although it is understandable that mother would want her children with her, her abrupt actions overlooked the attachments and the sense of security and familiarity that her children had formed in the grandparents’ home. It is obvious from the poignant testimony offered at trial that the transition to the mother’s home, which was unfamiliar and extremely different from appellants’, and to which the children were taken "with no warning or preparation, was extremely difficult for the children. In assessing the children’s best interests, the trial court failed to consider these basic and undeniable facts.

The trial court also failed to develop a complete record. See English v. English, supra (in contested custody case, trial court has duty to ensure that record is complete). The court did not solicit competent expert testimony to assist it in determining the effect of the transfer of custody on the children. This was necessary in order for the court to be fully informed on this aspect of the case. Nor did the lower court require that appellee’s husband testify. This was error. It was obvious from the testimony at the hearing that the stepfather’s conduct and behavior with and around the children were an issue. In light of the stepfather’s frequent contact with the children living with him and his status as a parental authority, it was incumbent upon the trial court to take his testimony and subject him to cross-examination in order to fully inform the court as to the mother’s home environment and the stepfather’s relationship with the children. See Haller v. Haller, 377 Pa.Super. 330, 547 A.2d 393 (1988) (trial court should have required testimony of mother’s boyfriend in light of his frequent contacts with children, his disciplining of them, and his acting in a quasi-parental role).

The trial court also failed to discuss as a factor whether the conduct of the custodial parent (appellee) resulted in obstruction of visits "with the non-custodial family (appellants). The courts of this Commonwealth will not tolerate such interference with a lawful order of court. English v. English, supra; Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 419 A.2d 1301 (1980). There was evidence in this case that appellee and/or her husband engaged in such conduct. It was incumbent on the lower court to consider this factor in its decision.

For all of the above reasons, we must vacate the final order of the lower court awarding primary physical custody of the children to appellee and remand the case to the lower court for a re-determination of custody taking into account all relevant factors as we have set forth in this case. It is necessary to remand this case so that the lower court can address crucial factors which were obviously present. Remand is also necessary so that the lower court can correct other errors: its assignment of great weight to certain factors while totally ignoring other equally significant ones, its failure to obtain expert testimony which was necessary to resolve the critical issues raised by the particular circumstances of this case, and the making of findings which were not supported by the evidence, constituting a gross abuse of the lower court’s discretion.

We recognize that a substantial period of time has passed since the trial court’s decision, and the children have now been in appellee’s custody for over two years. Some of this delay can be attributed to delay in the transmission of the certified record to this court. The normal length of time allowed for filing of briefs in this court also explains the passage of time. During the period of time that this case has been on appeal, this court has not received or been apprised of any action by the parties which would merit immediate concern for the proper placement of the children. Therefore, on remand, the children are to remain in appellee’s custody under the current arrangement pursuant to a temporary order of court until the lower court renders a new final order of custody in accordance with this memorandum.

Upon this court’s relinquishment of jurisdiction, the lower court may make modifications of the temporary order of custody as necessary to serve the children’s best interests until a new final order of custody has been made. On remand, the trial court must assess the children’s preferences in light of their maturing years, and fully investigate any further involvement by Children and Youth Services with appellee’s household. If counseling is necessary to assist the parties or the children in complying with any order of this or the lower court or to facilitate the children’s adjustment in their custodial situation, the lower court is directed to order it.

Order vacated; case remanded to lower court for entry of temporary order of custody in appellee with partial custody in appellants as per the current arrangement, and for further proceedings in accordance with this memorandum; jurisdiction relinquished.

BECK, J., concurs in the result.

      . On that date, appellee executed a “Power of Attorney over Minor Children” and "Authorization to Consent to Medical and Dental Treatment for Minor Children.” By these documents, appellee authorized appellants to care for her children's needs, including their medical and dental needs.

      . The original stamp date on the lower court opinion was January 3, 1994. However, that date has been crossed out and replaced with the January 11, 1994 date.

      . Appellee filed a motion for change of venue to Colombia County which the lower court granted. The docket sheets indicate that the lower court granted the motion on December 3, 1993. The record further indicates that the case was filed in Colombia County on December 16, 1993.

      . Appellants filed this appeal on February 8, 1994. As we will discuss, infra, this appeal presents a current issue for this court to determine.

      . Although the record is not clear, presumably the residences of appellee and her husband were in Montour or Colombia Counties.

      . Further questioning of J.L. by the lower court demonstrated the unlikelihood that a "rape” had occurred. However, J.L.’s testimony did not omit the possibility that the stepfather may have illicitly touched her. Id. at 182.

      . We note that the home studies have not been included in the record certified to this court.

      . The lower court did not discuss this allegation in its opinion.

      . The Albright court also found that the children’s best interests would be served by an award of primary custody to the grandparents because they would not be separated from their half-sibling as they would be if their father received custody of them. Id. at 328, 421 A.2d at 160.

      . We must note our disapproval of the manner in which these children were taken from appellants’ home. Appellee testified that she had asked her parents for the return of her children and that they had refused. In such a case, it was incumbent upon appellee to file a legal action to establish her right to the custody of her children. See In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977) (natural mother filed writ of habeas corpus to regain custody of child from couple to whom she had relinquished custody in order to finish her high school education). Such a step would have allowed an orderly legal procedure for the transfer of custody to the mother should the lower court have so decided. This was not a case in which there were allegations of mistreatment of the children by appellants.
      We also note our disapproval of what appears to have been the role of counsel for appellee in the removal of the children from appellants’ home. On August 7, 1992, the same date on which appellee picked up the children for the alleged "camping trip,” counsel for appellee wrote a letter to appellants advising them of appellee’s intention to keep the children, revoking her authorization to appellants for medical treatment of the children and their power of attorney as to them, and advising them that the children would “need their clothes and other things as soon as possible.”
      A member of the bar, in handling a matter involving the custody of minor children, must proceed with great sensitivity to the possibility of psychological/emotional harm to the children and should advise procedures and actions which will minimize such possibility. Counsel should not advise actions which have a likelihood of producing harm or trauma to the children involved.

      . The appeal in this case was filed on February 8, 1994, and the record was received from the lower court on August 23, 1994.


author: TAMILIA, Judge:

text:
    662 A.2d 1120
    CITICORP MORTGAGE, INC. v. MORRISVILLE HAMPTON VILLAGE REALTY LIMITED PARTNERSHIP, a New Jersey Limited Partnership, Appellant.
    Superior Court of Pennsylvania.
    Argued April 24, 1995.
    Filed July 26, 1995.

      Stanton C. Kelton, III, Cornwells Heights, for appellant.
    Ira S. Lefton, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and TAMILIA and SAYLOR, JJ.
   TAMILIA, Judge:

Appellant, Morrisville Hampton Village Realty Limited Partnership, takes this appeal from the September 22, 1994 Order granting summary judgment in favor of appellee, Citicorp Mortgage, Inc., in the amount of $3,435,318.67 plus interest.

On August 2, 1990, appellee loaned $2.3 million to appellant under a multi-family note secured by a multi-family mortgage, assignment of rents and security agreement, which provides security for a multi-family garden apartment complex in Morrisville, Bucks County, Pennsylvania. On June 24, 1992, appellant, who went into default on the loan on November 1, 1992 and continues to be in default, filed a petition for bankruptcy in the Federal District Court of New Jersey under Chapter 11 of the Bankruptcy Code listing appellee as a secured claimant with a claim in the amount of $2.3 million. By Order of March 25, 1994, the bankruptcy court granted appellee relief from the automatic bankruptcy stay and permitted foreclosure on its mortgage. Appellee, on April 8, 1994, filed a complaint in mortgage foreclosure based upon the defaults under the loan documents. By affidavit, appellee established the amounts of the unpaid principal, unpaid interest, accrued late charges, costs and expenses incurred, a prepayment fee and attorney’s fees for a sum total of $3,435,-318.67.

The facts surrounding the execution of the mortgage and note as well as the amount of the mortgage, the rate of interest and the specific terms and conditions of the note and mortgage are not in dispute. On appeal, appellant takes issue only with two elements of the damages asserted, namely the prepayment fee and the attorney’s fees.

When we review the grant of a motion for summary judgment made under Pa.R.C.P. 1035, the appellate court’s scope of review is well-settled: summary judgment is properly granted where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment may be granted only where the right is clear and free from doubt. The moving party has the burden of proving that there is no genuine issue of material fact. The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party. The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion.

First Wisconsin Trust Co. v. Strausser, 439 Pa.Super. 192, 198, 653 A.2d 688, 691 (1995) (citations omitted).

On appeal to this Court, appellant argues the trial court, in granting summary judgment in favor of appellee, erred in allowing a “prepayment penalty” of $434,182.48 to be added to the judgment. Appellant contends the provision for the prepayment fee, encompassed in a rider attached to the note, does not authorize imposition of such payment after the mortgage is in foreclosure. Specifically, the rider contains carefully defined terms as to various provisions concerning, inter alia, the calculation of the prepayment formula, however, the rider fails to include a specific statement as to prepayment in the event of default or foreclosure. Accordingly, since the law presumes a mortgagor can prepay the mortgage, appellant argues the mortgage document must be strictly construed as to any restriction placed on this right.

Generally, where a mortgage note is silent as to the right of prepayment, there arises a presumption the debt may be prepaid. Mahoney v. Furches, 503 Pa. 60, 65, 468 A.2d 458, 461 (1983). This presumption can be rebutted by showing a contrary intent mutually manifested by the parties. Id. Here, after a review of the record, we find the prepayment fee requested by appellee clearly was set forth in the rider in great detail and, specifically, appellee went to great lengths to define the prepayment fee, how it would be calculated, that it would be paid whether or not the prepayment is voluntary or involuntary and that no prepayment fee would be imposed during the last three months prior to the maturity date. Although neither party was able to locate controlling caselaw pertaining to prepayment fees when a default occurs, we find this situation controlled by contract law. This was a commercial loan entered into by a corporation and a limited partnership with the type-written rider signed by appellant’s general partner. Accordingly, appellant, who signed the note and presumedly was well aware of the provisions of the rider will be bound by it. Mahoney, supra.

Appellant further contends appellee has not shown the prepayment fee is justified as liquidated damages and not an illegal penalty. Specifically, appellant contends appellee has failed to show some relationship between the penalty sum of $434,182.48 and the actual damages suffered by it.

The record reveals the rider signed by appellant set forth a detailed formula for calculating the prepayment fee. The trial court determined the calculations to be accurate and in conformity with the provisions of the loan documents. (Slip Op., Garb, J., 11/19/94, p. 3.) Beyond a bald assertion the fee is a penalty and excessive, appellant sets forth no evidence disputing the liquidated damages, nor does it show where the trial court committed an error of law or abused its discretion in granting the summary judgment.

Secondly, appellant argues the trial court erred in awarding attorney’s fees of ten per cent (10%) or $226,307.21. Appellant contends the trial court merely determined this figure was specifically provided for in the loan documents and thus was acceptable without considering equitable principles to determine if the fees were reasonable, as required by Pennsylvania law.

In Pennsylvania, a mortgagee is entitled on foreclosure to recover reasonable expenses, including attorney’s fees. Foulke v. Hatfield Fair Grounds Bazaar, Inc., 196 Pa.Super 155, 173 A.2d 703 (1961). The test of a legal fee must be its reasonableness, determined by the circumstances of the particular case. Federal Land Bank of Baltimore v. Fetner, 269 Pa.Super. 455, 410 A.2d 344 (1979). Here, the trial court entered summary judgment for appellee and included attorney’s fees in accordance with the formula set out in the loan documents. Simply because the trial court, in its Opinion, did not specifically state the attorney’s fees were “reasonable,” we will not hold to the contrary. Rather, appellant must set forth some facts, beyond bald assertions, to support its argument the attorney’s fees were unreasonable. Although the trial court does not support its decision with caselaw or detailed analysis, our review of relevant Pennsylvania law finds attorney’s fees of 10% to be reasonable. See Federal Land Bank of Baltimore, supra. Moreover, in light of this transaction involving a commercial loan and mortgage foreclosure proceedings, this appeal, and various ancillary matters, we find the trial court did not err in including the 10% attorney’s fees in the summary judgment.

Lastly, appellant argues the trial court should not have entered summary judgment for the full amount claimed simply because this was a foreclosure action and Pennsylvania law requires judgment be entered in a specified amount as otherwise execution could not be effected. Thus, if the amount of the judgment really doesn’t matter, appellant contends, then it would have made more sense for the trial court to have entered judgment in the undisputed amounts, and not include the attorney’s fee and prepayment fee.

As indicated above, in an action for mortgage foreclosure, it is essential that judgment be entered in a specific amount as otherwise execution could not be effected thereon. See Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 282 A.2d 335 (1971). In Landau, as in the present case, the mortgagee had taken possession of the premises and therefore the amount of the outstanding debt was in flux because it was likewise collecting the rent. Thus, here, as in Landau, the amount of the outstanding debt at the time of execution and sale is somewhat uncertain. Accordingly, the trial court entered summary judgment for a sum certain consisting of the amount by which appellant was in default plus the prepayment fee and attorney’s fees, inter alia, to facilitate execution. The trial court determined the disputed fees to be clearly and expressly provided for and set forth in the loan documents and therefore includable in the summary judgment. Having found the trial court did not abuse its discretion in finding these fees to be in accordance with the loan documents, we find the court did not abuse its discretion in including the fees in the Order of summary judgment.

Order affirmed.

      . Subsequent to the filing of the complaint, the parties agreed to the appointmeiit of a receiver for the property.


author: KELLY, Judge:

text:
    662 A.2d 1123
    COMMONWEALTH of Pennsylvania, Appellant, v. Rodney J. NOLL, Appellee.
    Superior Court of Pennsylvania.
    Argued June 8, 1995.
    Filed July 26, 1995.

      Iva C. Dougherty, Asst. Dist. Atty., Reading, for Com., appellant.
    William R. Bernhart, Reading, for appellee.
    Before MCEWEN, TAMILIA, and KELLY, JJ.
   KELLY, Judge:

In this appeal, we are called upon to determine whether the trial court properly granted appellee’s, Rodney Noll’s, motion in limine precluding the Commonwealth from utilizing as an expert witness an accident reconstruction expert who had originally been hired by appellee’s counsel to assist in the preparation of a possible civil lawsuit by appellee stemming from the same automobile accident which resulted in the criminal charges being brought against him. We affirm.

The relevant facts and procedural history of this appeal are as follows:

On November 9, 1993, at approximately 8:00 a.m., Mr. Noll was the operator of a pick-up truck involved in a collision with another vehicle on Frush Valley Road, Muhlenberg Township, Berks County. A passenger in the other vehicle was killed in the crash.
Mr. Noll immediately consulted with an attorney, Peter Munsing, Esq., about filing a civil suit. Mr. Munsing hired William Bowes, an accident reconstruction expert, to assist in preparation for possible litigation. Mr. Bowes contacted the police who accompanied him on November 10, 1993, to the site of the collision and [to] the salvage yard to view the vehicles. Mr. Noll decided, apparently as a result of Mr. Bowes’ finding, not to pursue a civil suit. The Commonwealth subsequently employed Mr. Bowes to investigate the incident.
Corporal Thomas Dougherty of the Muhlenberg Township Police Department filed a criminal complaint on February 4, 1994, charging Mr. Noll with homicide by vehicle, 75 Pa. C.S.A. § 3732, and three summary traffic violations. A preliminary hearing was conducted before District Justice Anthony F. Horning on March 8, 1994. District Justice Horning bound all of the charges over for court. Mr. Bowes testified at the preliminary hearing as an expert witness on the Commonwealth’s behalf.
Mr. Noll filed a Motion in Limine asking that the testimony of Mr. Bowes be precluded at trial. The Commonwealth has appealed the Order of the trial court granting the motion.

(Trial Court Opinion at 1-20).

On appeal, the Commonwealth raises the following issue for our review:

WHETHER THE LOWER COURT ERRED IN GRANTING THE DEFENSE MOTION IN LIMINE PRECLUDING THE TESTIMONY OF THE COMMONWEALTH’S EXPERT WITNESS?

(Commonwealth’s Brief at 3).

At the outset, we review the scope and purpose of a motion in limine.

A motion in limine is a pre-trial application before a trial court made outside the presence of a jury, requesting a ruling or order from the trial court prohibiting the “opposing counsel from referring to or offering into evidence matters so highly prejudicial to the moving party that curative instructions cannot alleviate an adverse effect on the jury. See Black’s Law Dictionary 914 (5th ed. 1979). See also Commonwealth v. Johnson, 399 Pa.Super. 266, 582 A.2d 336 (1990), appeal granted, 529 Pa. 617, 600 A.2d 534 (1991) (citing L. Packel & A.B. Poulin, Pennsylvania Evidence § 103.3 (1987)). The purpose of a motion in limine is two fold: 1) to provide the trial court with a pre-trial opportunity to weigh carefully and consider potentially prejudicial and harmful evidence; and 2) to preclude evidence from ever reaching a jury that may prove to be so prejudicial that no instruction could cure the harm to the defendant, thus reducing the possibility that prejudicial error could occur at trial which would force the trial court to either declare a mistrial in the middle of the case or grant a new trial at its conclusion. 75 Am.Jur.2d § 94 & § 98. Further, a ruling on a pre-trial motion in limine provides counsel with a basis upon which to structure trial strategy. Blumenkopf, The Motion in Limine: An Effective Procedural Device With No Material Downside Risks, 16 N.Eng.L.Rev. 171 (1981). The motion in limine is an effective procedural device with no material downside risk. Id. at 171-72. Once the court has pronounced its decision, the matter before it will proceed unless the Commonwealth elects to appeal an adverse ruling. Commonwealth v. Cohen, 529 Pa. 552, 557, 605 A.2d 1212, 1215 (1992). For purposes of appealability, the court’s ruling on a motion in limine is exactly the same as a pre-trial suppression order. Id. at 557, 605 A.2d at 1215. Thus, both a suppression order and a pre-trial motion in limine excluding evidence are immediately appealable by the Commonwealth. Id. at 557, 605 A.2d at 1215.

Commonwealth v. Metzer, 430 Pa.Super. 217, 226-27, 634 A.2d 228, 232-33 (1993).

Evidentiary rulings are committed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. Id. at 226, 634 A.2d at 232. It was within the discretion of the trial court to preclude the testimony of the Commonwealth’s accident reconstructionist, William Bowes, as Mr. Bowes had been retained by the defense to perform an investigation of the incident prior to his investigation for the Commonwealth. As the trial court stated,

It would be patently unfair for the Commonwealth to base its reconstruction of the crash on information which its expert gathered while employed in the same capacity by Mr. Noll. There is no possible curative instruction in this situation. It would be impossible to point to particular portions of Mr. Bowes’ testimony which must be stricken or provide some general missive directing the jury to view the expert’s testimony with caution. In addition, there is no particular prejudice to the Commonwealth from this ruling. Competent accident reconstruction experts are plentiful. There was absolutely no need to employ as the Commonwealth’s expert someone who had previously investigated the accident for Mr. Noll.

(Trial Court Opinion at 2-3). We agree.

Furthermore, the information gathered by Mr. Noll should be protected by the attorney work product doctrine and the attorney-client privilege. The attorney-client privilege has long been a part of Anglo-American Law. Wigmore has traced the history of the attorney-client privilege, “back to the reign of Elizabeth I, where the privilege already appears as unquestioned.” The sanctity of communications between client and attorney had remained firmly established despite the preeminence since the late eighteenth century of “the judicial search for truth and its demand for every man’s evidence.” The attorney-client privilege has been part of Pennsylvania law since the founding of the Pennsylvania colony, and has been codified in our statutory law. See 42 Pa.C.S.A. § 5928. The attorney-client privilege is not waived where a client allows disclosure to an agent assisting the attorney in giving legal advice to the client. In re Grand Jury Matter, 147 F.R.D. 82, 84 (E.D.Pa.1992). Thus, where legal assistance is rendered by an agent of an attorney, communications are permanently protected from disclosure by the agent, the attorney, or the client, unless waived by the client. United States v. Kovel, 296 F.2d 918, 921-22 (2d Cir.1961). See also J. Wigmore supra, § 2301 at 583. As Mr. Bowes was an agent of Attorney Munsing hired to assist in providing legal advice to Mr. Noll, the attorney-client privilege was not waived. This privilege protects those disclosures that are necessary to obtain informed legal advice which might not have been made absent the privilege. In re Grand Jury Matter, 147 F.R.D. 82, 84 (E.D.Pa.1992). This privilege only applies where the client’s ultimate goal is legal advice. Id. at 85. In the instant case, Mr. Bowes was retained by Attorney Munsing to investigate an incident in order to provide legal advice. Therefore, any information regarding Mr. Bowes investigation of the accident would be privileged.

The attorney work product doctrine provides even broader protections than the attorney-client privilege. Id. at 86. It promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients. Id. at 86 (citing Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393-94, 91 L.Ed. 451, 461 (1947)). As attorneys must often rely on the assistance of investigators and other agents in the compilation of materials necessary for trial, the doctrine protects materials prepared by agents for the attorney, as well as those prepared by the attorney himself. Id. at 87 (citing United States v. Nobles, 422 U.S. 225, 238-39, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141, 154 (1975)). It includes “interviews, statements, memoranda, correspondence, briefs, mental impressions [and] personal beliefs.” Id. (quoting Hickman v. Taylor, supra). The investigative findings of Mr. Bowes would be protected as he is an agent of Attorney Munsing and his inquiry was conducted with an eye toward litigation. Had the Commonwealth not hired Mr. Bowes to investigate this accident (subsequent to his investigation for Mr. Noll), the Commonwealth would not be able to call Mr. Bowes as a witness.

We are also not persuaded by the Commonwealth’s argument that Commonwealth v. Porter, 524 Pa. 162, 569 A.2d 942 (1990) controls. In Commonwealth v. Porter, supra, the court found that the trial testimony of an expert, once employed by the defendant, was not prejudicial. This was because the testimony was cumulative and offered on rebuttal to corroborate the earlier testimony of a police expert, and to rehabilitate the testimony of another witness. Aside from the obvious procedural differences between that case and the instant case, the expert testimony in Commonwealth v. Porter, supra was not dispositive. It was cumulative, and only offered on rebuttal. In the instant case, the accident reconstructionist, Mr. Bowes, was the prosecution’s key witness. He accepted employment on behalf of the Commonwealth to investigate the accident after he had already investigated the accident for Mr. Noll.

Based upon the foregoing, we hold that the Commonwealth’s claim that the trial court erred in granting the defense motion in limine precluding the testimony of the Commonwealth’s expert witness is without merit. Therefore, we affirm the order of the trial' court granting the defense motion in limine precluding the testimony of the Commonwealth’s accident reconstructionist, William Bowes.

Order affirmed.

      . Waldman, Beyond Upjohn: The Attorney-Client Privilege in the Corporation Context, 28 William and Mary Law Review 473-475 citing 8 J. Wigmore; Evidence in Trials at Common Law § 2290 at 542 (McNaughton rev. ed. 1961) (footnotes omitted).

      . J. Wigmore supra, §§ 2290 at 543.

      . In Commonwealth v. Porter, supra, an appeal was taken after judgment was entered and the appellant requested a new trial. In the instant case, a pre-trial motion was granted to eliminate any chance of prejudice to the defendant and to allow the Commonwealth to procure another expert prior to trial.


author: BECK, Judge:

text:
    662 A.2d 1127
    COMMONWEALTH of Pennsylvania ex rel. Gary LAGANA, v. COMMONWEALTH of Pennsylvania OFFICE OF ATTORNEY GENERAL and District Justice Thomas Sharkey. Appeal of Commonwealth of Pennsylvania, Office of Attorney General.
    Superior Court of Pennsylvania.
    Argued April 18, 1995.
    Filed July 27, 1995.

      Jerome T. Foerster, Deputy Atty. Gen., Harrisburg, for Commonwealth, appellant.
    Frank W. Nocito, Kingston, for appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   BECK, Judge:

In this Commonwealth appeal, we evaluate whether the Commonwealth has presented a prima facie case before a district justice in order to defeat a defendant’s petition for habeas corpus relief.

The Commonwealth appeals from the order of the Court of Common Pleas granting in part appellee’s petition for writ of habeas corpus. For the reasons that follow we find that the Commonwealth has set forth sufficient evidence to make out its prima facie case. We therefore reverse the order of the Court of Common Pleas and remand for further proceedings.

This matter arises out of a payment of $5,275.00 made by Hazel Township, Luzerne County (Township), to appellee Gary Lagaña in September of 1986. At the time of the payment, Lagaña was serving as a Township Supervisor and was also an insurance salesman. The Township intended that Lagaña use the money to procure an Errors and Omissions insurance policy for the Township. It is uncontested that Lagaña never purchased the policy. It is further uncontested that Lagaña did not return the money until October of 1993, when ordered to do so by the State Ethics Commission.

Following the Ethics Commission’s investigation, the Commonwealth filed criminal charges against Lagaña charging him with restricted activities, theft by unlawful taking, theft by deception, receiving stolen property, and theft by failure to make required disposition of funds received. Following a preliminary hearing Lagaña filed a petition for writ of habeas corpus, arguing that the Commonwealth failed to present sufficient evidence to make out a prima facie case for each of the crimes charged. The hearing court agreed and granted Lagana’s petition on all charges except the charge of restricted activities. This appeal followed.

In Commonwealth v. Lacey, 344 Pa.Super. 576, 496 A.2d 1256 (1985), a panel of this court discussed the purpose of a preliminary hearing and our standard in reviewing an order granting habeas relief.

A creature of statute, the preliminary hearing is intended to protect the accused from unlawful detention. To that end, the prosecution must establish at least a prima facie case that a crime has been committed and that the accused is the one who committed it. The Commonwealth’s burden at this stage falls short of proof beyond a reasonable doubt. The proof need only be such that, if the evidence were presented at trial and accepted as true, the trial judge would be warranted in allowing the case to go to the jury.
Case law provides a mechanical standard of review:
Our function is to take the facts proven by the Commonwealth at the preliminary hearing and to determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the Crimes Code to be illegal conduct. If the proven facts fit the definition of the offenses with which the [defendant is] charged, then a prima facie case was made out as to such ... offenses. If the facts do not fit the statutory definitions of the offenses charged against [the defendant] then [the defendant] is entitled to be discharged.

Id. at 583-84, 496 A.2d at 1260-61 (citations omitted) (quoting Commonwealth v. Lynch, 270 Pa.Super. 554, 411 A.2d 1224 (1979)). With these standards in mind we turn to the record of the preliminary hearing to determine whether the facts presented by the Commonwealth make out a prima facie case of the crimes charged.

The Commonwealth presented evidence at the preliminary hearing supporting the following facts: that the Township provided Lagaña with the money in question for the express purpose of obtaining a particular kind of insurance policy for the Township (R.R. 22-29); that Lagaña informed other Township Supervisors that he had placed the policy when in fact he had not (R.R. 52); that Lagaña placed the money in a business account and that the funds may have been used by the business for purposes other than procurement of the insurance policy (R.R. 97); that Lagaña in fact never obtained the insurance policy (R.R. 24); that Lagaña kept the money for eight years and returned it only after being ordered to do so by the State Ethics Commission (R.R. 38-39, 96). We must next determine whether these facts are sufficient to make out each element of the crimes charged.

A defendant is guilty of theft by unlawful taking if he unlawfully takes, or exercises control over, movable property of another with the intent to deprive him thereof. 18 Pa.C.S.A. § 3921(a). Lagana’s failure to return the Township’s money when his efforts to procure an insurance policy failed reasonably may be considered an illegal exercise of control over the funds. However, the hearing court concluded that the Commonwealth failed to provide proof of criminal intent. We disagree. In evaluating whether the Commonwealth has made out its prima facie case, criminal intent may be inferred from circumstantial evidence. See Commonwealth v. Neckerauer, 421 Pa.Super. 255, 617 A.2d 1281 (1992) (en banc); Lacey, 344 Pa.Super. at 584-85, 496 A.2d at 1261. We find that the evidence presented by the Commonwealth, particularly that Lagana may have lied regarding whether the policy had been placed and did not return the money until ordered to do so by the Ethics Commission, is sufficient to infer Lagana’s criminal intent. We therefore conclude that the Commonwealth has made out a prima facie case of theft by unlawful taking.

A defendant is guilty of theft by deception if he obtains or withholds property of another by deception. 18 Pa.C.S.A. § 3922(a). A person deceives if he intentionally “creates or reinforces a false impression, including false impressions as to ... intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise.” 18 Pa.C.S.A. § 3922(a)(1). It is clear that Lagaña obtained or withheld the property of another. Additionally, while we may not infer intent to deceive based solely on Lagana’s failure to obtain the insurance policy, the Commonwealth’s evidence that Lagaña may have lied to his fellow Supervisors regarding placement of the policy is sufficient to overcome the Commonwealth’s burden of showing prima facie intent. The Commonwealth’s evidence is therefore sufficient to make out a prima facie case of theft by deception.

A defendant is guilty of receiving stolen property if he receives, retains, or disposes of movable property of another knowing that it has been stolen, unless the property is received, retained or disposed with the intent to restore it to the owner. 18 Pa.C.S.A. § 3925(a). Again, in the instant case there is no dispute that Lagaña received the money in question. The only question is whether the Commonwealth provided sufficient evidence to support the contention that Lagaña intended to steal the money and did not intend to return it to the Township. We again find the Commonwealth’s evidence, particularly evidence suggesting that Lagaña may have lied to other Township Supervisors and did not return the money until ordered to do so, sufficient to make out a prima facie case of criminal intent.

A defendant is guilty of theft by failure to make required disposition of funds received if he obtains property upon agreement or subject to a known legal obligation to make specified payment or other disposition of the property, and intentionally deals with the property as his own and fails to make the required payment or disposition. In the instant case, it is undisputed that Lagana obtained the money subject to a known legal obligation to purchase an insurance policy. Additionally, Lagana clearly dealt with the money as his own, commingling the funds with those of his business and possibly using some or all of the money to finance his business operations. Once again, what is at issue is Lagana’s intent. As we did supra, we find the evidence of possible misrepresentations to other Township Supervisors and Lagana’s failure to return the money until ordered to do so sufficient to make out a prima facie case of criminal intent.

We conclude that the hearing court erred in granting Lagana’s petition for writ of habeas corpus. We emphasize that we make no judgment as to Lagana’s guilt or innocence. We merely hold that the Commonwealth presented sufficient evidence to make out a prima facie case for each of the crimes charged.

Order reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . 65 Pa.S.A. § 403(a).

      . 18 Pa.C.S.A. § 3921(a).

      . 18 Pa.C.S.A. § 3922(a)(l)(2)(3).

      . 18 Pa.C.S.A. § 3925.

      . 18 Pa.C.S.A. § 3927.