author:
      OLSZEWSKI, Judge:
      McEWEN, Judge,

text:
    579 A.2d 897
    COMMONWEALTH of Pennsylvania v. Howard PFEIFFER, II, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1990.
    Filed Aug. 17, 1990.
    Reargument Denied Oct. 2, 1990.

      Mark S. Love, Mt. Pocono, for appellant.
    David E. Christine, Jr., Dist. Atty., E. Stroudsburg, for Com., appellee.
    Before McEWEN, OLSZEWSKI and BROSKY, JJ.
   OLSZEWSKI, Judge:

This an appeal from the judgment of sentence of the Court of Common Pleas of Monroe County after a plea of guilty to one count of possession with intent to deliver a controlled substance, 35 P.S. § 780-113(a)(30). On appeal, it is submitted that absent anything to the contrary in the court’s sentencing order, appellant’s state sentence for the instant crime should run concurrent to a county sentence he is currently serving. In addition, appellant argues that the sentence received in the instant case amounts to an infringement on his Eighth Amendment rights as it is disproportionate to the nature of the crime committed. Finally, appellant contends that under the facts of the instant case, the sentence imposed upon him was an abuse of discretion on the part of the trial court. For the following reasons, we affirm.

Appellant was originally charged in this matter with one count of possession of a controlled substance and one count of possession with intent to deliver a controlled substance. The charges were the result of appellant’s involvement in a sale of cocaine to an undercover police officer and an informant on August 12, 1988. On September 6, 1989, pursuant to a plea agreement, appellant pleaded guilty to possession with intent to deliver and a pre-sentence investigation was ordered prior to sentencing. In the meantime, however, appellant pleaded guilty to possession of a controlled substance arising out of an incident on September 2, 1989, where appellant was found shooting cocaine with a female companion in her automobile. As a result of this latest plea, appellant was sentenced by a district justice to ninety days in the Monroe County jail, plus fines and costs.

Thereafter, on November 2, 1989, the trial court sentenced appellant on the instant charge to a term of imprisonment totaling three-to-six years in a state correctional facility, plus costs and restitution. Appellant, through counsel, filed a motion to reconsider the sentence on November 9, 1989, requesting a lower sentence because of family hardship and the fact that appellant was a drug user in need of medical help. Counsel then withdrew from representation, and appellant, through new counsel, filed another motion for reconsideration on November 13, 1989. In the second motion, appellant raised the issue of whether his prior sentence should run concurrent to or consecutive with the instant sentence. Appellant also raised additional reasons why the trial court should use its discretion to lower his sentence and grant him county rather than state time. After a hearing on the merits, the court denied the motions. Appellant then filed the instant appeal.

It is axiomatic that a plea of guilty constitutes a waiver of all defects and defenses save those concerning the jurisdiction of the court, validity of the plea, and any legal or discretionary challenge to the sentence. Commonwealth v. Becker, 383 Pa.Super. 553, 557 A.2d 390 (1990). Before we can review a sentencing matter, however, it must be properly preserved in the trial court by way of a timely motion to reconsider and/or modify the sentence. Pa.R.Crim.P., Rule 1410, 42 Pa.C.S.A. Failure to file such a motion, or the failure to file in a timely manner, waives all sentencing claims, except for those involving .the legality of the sentence. Commonwealth v. Bogden, 364 Pa.Super. 300, 528 A.2d 168 (1987); Commonwealth v. Smith, 386 Pa.Super. 626, 563 A.2d 905 (1989). As this Court has observed, “[t]he legality of sentence exception to the waiver doctrine has traditionally been limited to situations where the claim is that the sentence is facially illegal. The obvious example is a case where a sentence is beyond the statutorily prescribed limits.” Commonwealth v. Wallace, 368 Pa.Super. 255, 533 A.2d 1051 (1987). Another is where the claim centers around the propriety and manner in which the sentence was imposed. Commonwealth v. Ragoli, 362 Pa.Super. 390, 524 A.2d 933 (1987).

Even where a sentencing issue is properly preserved in the trial court, we must next determine if the issue is properly preserved on appeal. Issues involving the legality of sentence are, of course, appealable as of right. 42 Pa.C.S.A. § 9781(a). To reach the merits of a discretionary sentencing issue, however, we must determine: (1) whether appellant has set forth, in a separate section of his brief, a concise statement of the reasons relied upon for allowance of appeal; and, if so (2) whether appellant has advanced a colorable argument that the sentencing court’s actions were inconsistent with a specific provision of the Sentencing Code, or were contrary to the fundamental norms which underlie the sentencing process. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Hall, 382 Pa.Super. 6, 554 A.2d 919 (1989); Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988).

Applying these standards to the case at bar, we will examine the instant claims. In so doing, we note initially that appellant’s first argument was raised in his second motion for reconsideration filed on November 13, 1989, one day after the statutory deadline. See Pa.R.Crim.P. 1410. While in other circumstances, this would result in a waiver of this claim, we agree with appellant that this matter goes to the legality of his sentence and is, therefore, not subject to waiver. Unfortunately for appellant, however, we find no merit to his contention.

Appellant contends that the trial court failed to indicate in its written order whether the instant state sentence was to run concurrent to or consecutive with a county sentence he is currently serving. In light of this failure appellant contends that, as a matter of law, the instant sentence is deemed to run concurrent to his county sentence. See Commonwealth ex rel. Woods v. Howard, 249 Pa.Super. 428, 378 A.2d 370 (1977); Commonwealth v. Pristas, 222 Pa.Super. 254, 295 A.2d 114 (1972); Litzelman Appeal, 207 Pa.Super. 374, 217 A.2d 838 (1966); Commonwealth ex rel. Money v. Maroney, 202 Pa.Super. 505, 198 A.2d 380 (1964).

Contrary to appellant’s line of case law, however, we are not dealing with a situation where both sentences were imposed by the same court to be served in the same institution. Here, we have a situation where different courts have sentenced appellant for different offenses to be served at separate and distinct institutions. In this situation, absent any written indication to the contrary, it is presumed that the sentences are to run consecutively. Taylor v. Commonwealth Board of Probation and Parole, 36 Pa.Cmwlth. 625, 388 A.2d 777 (1978); Commonwealth ex rel. Speese v. Keenan, 199 Pa.Super. 144, 184 A.2d 386 (1962); Commonwealth ex rel. Pitts v. Myers, 196 Pa.Super. 277, 175 A.2d 331 (1961). Instantly, the trial judge was aware of appellant’s immediate incarceration prior to sentencing for the instant offense. His intent to have the instant state sentence run consecutive to his county sentence is, therefore, presumed. Accordingly, appellant’s claim must fail.

Next, appellant argues that the application of the sentencing guidelines in this case resulted in a sentence that is grossly disproportionate to the nature of the crime committed and, as such, resulted in a violation of his Eighth Amendment rights. This issue was never raised before the court by way of a motion for reconsideration and is, therefore, subject to a waiver analysis. In an apparent effort to avoid waiver, appellant treats this issue as if it were an attack on the legality of his sentence. This assumption, however, is erroneous. Appellant does not complain that his sentence goes beyond any statutory maximum. Rather, he complains that the trial judge, in using his discretionary power to apply the standard range of the sentencing guidelines, has violated appellant’s Eighth Amendment rights by imposing a sentence that is too harsh under the circumstances. Constitutional attacks such as these do not go to the legality of the sentence and, therefore, must be raised and preserved at each level of the criminal proceeding. Commonwealth v. Wallace, 368 Pa.Super. at 261-62, 533 A.2d at 1054. Because appellant has failed to do so, this claim is waived.

Finally, it is submitted that the trial court abused its discretion by imposing a three-to-six year prison term upon appellant. In his Rule 2119(f) statement, appellant claims that the instant sentence was inappropriate because he was not a dealer, he had previously been assaulted while incarcerated in a state penitentiary; his family situation was precarious; and the nature of his offense, absent any prior record, would warrant a lesser sentence. These items were raised in appellant’s second motion for reconsideration which, as we have indicated before, was untimely filed. Because these claims in many instances mirror those concerns raised in appellant’s first motion, however, we will not find waiver on this basis. Rather, despite appellant’s arguments to the contrary, we find no substantial question present which would require our intervention. The sentence imposed was within the guidelines, and was based on appellant’s significant prior criminal record. As such, appellant does not offer any argument on appeal which would indicate to this Court that his sentence was inconsistent with the guidelines or the fundamental norms which underlie the sentencing process. Accordingly, we decline to review the discretionary exercise of the court in formulating its sentence.

Judgment of sentence affirmed.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting.

While I hesitate to differ with such distinguished colleagues as compose the majority, I am compelled by the express provision of Pa.R.Crim.P. 1406 to the position that the instant sentence must be deemed to run concurrently with the earlier sentence. Rule 1406 provides, inter alia:

RULE 1406. Imposition of Sentence: Computation and Service
(a) Whenever more than one sentence is imposed at the same time on a defendant, or whenever a sentence is imposed on a defendant who is incarcerated for another offense, such sentences shall be deemed to run concurrently unless the judge states otherwise.
* * * * * *
(c) When, at the time sentence is imposed, the defendant is imprisoned under a sentence imposed for any other offense or offenses, the instant sentence which the judge is imposing shall be deemed to commence from the date of imposition thereof unless the judge states that it shall commence from the date of expiration of such other sentence or sentences.

The cases relied upon by the majority address and analyze the Act of May 28, 1937, P.L. 1036, § 1, 19 P.S. § 894, which provided:

From and after the passage of this act, all sentences for criminal offenses of persons who at the time sentence is imposed are held in custody in default of bail, or otherwise, shall begin to run and be computed from the date of commitment for the offense for which said sentence shall be imposed, unless the person sentenced shall then be undergoing imprisonment under a sentence imposed for any other offense or offenses, in which case the said sentence shall begin to run and be computed, either from the date of- imposition thereof or from the expiration of such other sentence or sentences, as the court shall, in its discretion, direct.

The Act of May 28, 1937, however, has been suspended. See: Pa.R.Crim.P. 1415(c). Since Rule 1406 does not mirror the former statute, the cases interpreting the former statute are not helpful to my study of the issue, particularly in the face of the clear and unequivocal mandate of Rule 1406. Thus it is that I most respectfully dissent.

      . The charge of possession of a controlled substance was later nolprossed.

      . This sentence was within the standard range of the sentencing guidelines for convictions involving less than two grams of cocaine, where the defendant had a prior record score of 5. See 42 Pa.C.S.A. § 9721. In this case, appellant's prior record score was 5.

      . Both parties address this issue utilizing case law which interpreted the Act of May 28, 1937, P.L. 1036, § 1; 19 P.S. § 894. This statute was suspended in 1973 and replaced by Pa.R.Crim.P., Rule 1406, 42 Pa.C.S.A. Because we find no substantial change in the law occasioning the advent of Rule 1406, see Commonwealth v. Holz, 245 Pa.Super. 376, 387-88, 369 A.2d 452, 458 (1977) (Spaeth, J., concurring and dissenting), we deem the case law cited by the parties appropriate and dispositive of the instant issue.

      . This intent was also apparent during the hearing on reconsideration and in the court’s 1925(a) opinion.


source: Caselaw Access Project

author:
ROWLEY, Judge:
      CAVANAUGH, Judge,

license: Public Domain

text:
    579 A.2d 901
    COMMONWEALTH of Pennsylvania v. Earnest Ray STEMBRIDGE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 18, 1990.
    Filed Aug. 21, 1990.

      John C. Marston, Doylestown, for appellant.
    Stephen B. Harris, Asst. Dist. Atty., Warrington, for Com., appellee.
    Before CAVANAUGH, ROWLEY and HUDOCK, JJ.
   ROWLEY, Judge:

In this appeal from the judgment of sentence of three to six years imprisonment that was imposed following his conviction on charges of possession of a controlled substance, possession with intent to deliver, and possession of drug paraphernalia, appellant Earnest Ray Stembridge raises a single issue: whether the evidence of his constructive possession of the contraband was sufficient to sustain the verdict. For the reasons set forth below, we affirm the judgment of sentence.

The events surrounding appellant’s arrest are crucial to his argument on appeal. On June 18, 1988, at approximately 3:00 a.m., Officer Patrick Connell of the Bristol Township Police Department noticed a Jeep Wagoneer with two inoperative rear lights. As the vehicle was driven into a convenience store parking lot and parked directly in front of the store, Officer Connell followed. The area was well lighted, and Officer Connell was able to see that there was nothing on the ground in the area where the vehicle was parked. Three persons were in the vehicle: the driver, Frank Miller; Dorothy Mullineaux, who was seated in the front between the two bucket seats; and appellant, who was seated in the right front passenger seat. Officer Connell questioned the driver and learned that the driver had no proof of ownership, the vehicle was not legally inspected, and the registration plate did not match the vehicle. Appellant then became “loud, abusive and disorderly” (N.T. at 13), causing Officer Connell to radio for assistance. The three occupants remained in the vehicle until Officer Daniel Lenihan arrived several minutes later.

At Officer Lenihan’s request, appellant got out of the vehicle on the passenger’s side. At approximately the same time, Officer Connell asked the driver to step out on the driver’s side, and the driver did so. Appellant went to the front of the vehicle, about ten feet to the right of Officer Lenihan and directly in front of the store, and leaned on a metal barrier between the store and the parking lot. Less than a minute later, as Officer Lenihan was speaking to Ms. Mullineaux and Officer Connell was speaking to the driver, Officer Connell observed appellant as he “was leaning against the posts and he got up off the post and put his hands in his pocket and fidgeted around, walked up a couple steps, walked back a couple of steps, and as he was doing that I told him to stand still, take his hands out of his pockets more than once” (N.T. at 34). Officer Lenihan immediately approached appellant, patted him down, and felt in the left rear pocket a bulge which he thought might be a weapon but which turned out to be two wallets, one of which contained a substance that proved to be methamphetamine. Appellant was then arrested and placed in one of the patrol cars; the officers’ testimony at trial suggests, but does not make absolutely clear, that both officers escorted appellant to the patrol car.

At some point in the sequence of events, Ms. Mullineaux was ordered to get out of the vehicle on the driver’s side. While questioning Mr. Miller on the driver’s side of the vehicle, Officer Lenihan noticed something underneath the passenger side of the car and directed Officer Connell to retrieve the objects. Officer Connell did so, finding two syringes and a large plastic sandwich bag partially wrapped in a paper towel and filled with a substance subsequently identified as methamphetamine. He testified that the objects were located “[approximately halfway into the passenger side of the car, maybe not even that” (N.T. at 23), “in the wheel well area where the fender of the car meets the door hinge, ... [not] by the tire” (N.T. at 24). Officer Lenihan identified the location of the contraband as being “about midway beneath the vehicle, ... in the area of the passenger’s compartment ... [approximately one foot ... back from the front wheels” (N.T. at 46).

Appellant was arrested for possession of the drugs and syringes found underneath the vehicle and was subsequently convicted by the trial court sitting without a jury. Post-trial motions were filed and denied, sentence was imposed on October 20, 1989, and this timely appeal followed.

Appellant contends that the evidence was insufficient to prove beyond a reasonable doubt that he had constructive possession of the drugs and syringes found beneath the vehicle. Constructive possession has been defined as “conscious dominion,” which in turn has been defined as “the power to control ... contraband and the intent to exercise that control.” Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (1986). It is a legal fiction, “an inference arising from a set of facts that possession of the contraband was more likely than not.” Id. The purpose of the doctrine is to expand the scope of possession statutes to encompass cases in which possession at the time of arrest cannot be shown, but in which there is a strong inference that there has been actual possession. Commonwealth v. Carroll, 510 Pa. 299, 302, 507 A.2d 819, 820 (1986). Constructive possession may be established by the totality of the circumstances. Commonwealth v. Mudrick, supra; Commonwealth v. Carroll, supra.

It is the case, as appellant contends, that the “mere presence of one person, among a group at a scene of contraband, is not a strong factor indicative of guilt.” Commonwealth v. Juliano, 340 Pa.Super. 501, 506, 490 A.2d 891, 894 (1985) [quoting Commonwealth v. Cash, 240 Pa.Super. 123, 125, 367 A.2d 726, 727 (1976) ]. In Juliano, police officers, having first obtained a search warrant, searched the car in which appellant and three others had been sitting and seized a satchel found on the floor in front of the seat that had been occupied by appellant. Appellant was subsequently convicted of possessing the counterfeit methaqualone tablets found inside the satchel. In its opinion reversing the judgment of sentence and discharging appellant, this Court observed that there was no evidence, such as furtive movements or an attempt at escape, from which it could be inferred that appellant knew of the contents of the satchel. Id. 510 Pa. at 506, 490 A.2d at 894. In the present case, appellant suggests that it would be equally unreasonable to infer from his mere presence that he had placed the contraband under the vehicle.

In this case, however, we have not only appellant’s presence at the scene, but also appellant’s movements as he reached into his pockets while walking back and forth in front of the vehicle. Appellant suggests that his actions were consistent with those of a person attempting to retrieve a cigarette from his pockets. The only reference at trial to such a possibility is the testimony given by Officer Connell on cross-examination, just after he had described appellant’s movements at the front of the vehicle:

Q: Did he tell you he was going to have a smoke?
Q: He said, “Can’t I smoke”?
A: I don’t recall that.
Q: Is it possible?
A: It’s possible, but I don’t recall.

N.T. at 34-35. Officer Connell’s testimony offers no support for appellant’s explanation of his behavior.

In support of his argument, appellant also cites Commonwealth v. Wisor, 466 Pa. 527, 353 A.2d 817 (1976), for the proposition that “[t]he fact of possession loses all persuasiveness if persons other than the accused had equal access ... to the place in which the property was discovered.” Id., 466 Pa. at 531, 353 A.2d at 818,[quoting Commonwealth v. Davis, 444 Pa. 11, 16, 280 A.2d 119, 121 (1971) ]. In Wisor, the appellant had been observed sitting behind the wheel of a car, with five other persons in the car and another man standing outside on the right. When the right front passenger seat was pushed forward, a pipe containing marijuana residue was found beneath it. This Court held that because the other occupants of the car had had ample opportunity to place the pipe beneath the seat, appellant did not have exclusive control of the area where the pipe was found and the trial court’s finding to the contrary was unsupported by the evidence. Id., 466 Pa. at 531-32, 353 A.2d at 818-19. In the case before us, appellant contends that Ms. Mullineaux had at least as good an opportunity as he did to place the contraband beneath the vehicle, since she moved into the passenger seat after appellant got out of the vehicle and the door on the passenger side of the vehicle remained open.

When Officer Connell was asked about the position of the passenger side door after appellant had left the vehicle, he answered that he believed the door had been open (N.T. at 18). He also testified that when he spoke to appellant before appellant stepped out of the car, the window on the passenger side of the vehicle “very well may have” been down (N.T. at 57).

With regard to Ms. Mullineaux’s location in the car, Officer Connell was asked whether “Mr. Miller or the woman [was] ever on the passenger side of the jeep vehicle”; he answered no (N.T. at 38). Whether the question referred to the inside or the outside of the vehicle is unclear. He also asserted that to his knowledge the woman was never seated on the passenger side of the vehicle (N.T. at 55). Officer Lenihan testified on direct examination that he ordered appellant out of the car and then turned and spoke to the woman “who was seated in the middle between the seats ...” (N.T. at 41). Asked where she was when he went to pat down appellant, he answered “I believe she had moved from the center and was in the passenger seat at that point, the right passenger seat” (N.T. at 42). However, he subsequently testified that he could not recall whether, after appellant had been placed in the patrol car, Ms. Mullineaux was seated between the bucket seats or in the right passenger seat (N.T. at 46). On cross-examination, Officer Lenihan testified as follows:

Q: What you are saying is the woman was sitting in the passenger seat and when she was asked to exit the vehicle she actually climbed over those two gear shifts and went out the driver’s side?
A: She was in the middle originally sitting on the hump. As I say, I don’t recall if she got into the passenger seat or not. Officer Connell ordered her out of the vehicle, out the left side of the car, and that is how she exited the vehicle.

N.T. at 48. We are unable to discern in the officers’ testimony any positive evidence that the woman was seated on the passenger side of the car.

There is even less support in the record for appellant’s theory that the driver could have thrown or kicked the contraband under the vehicle after he was ordered out of the car. There are no indications in the record that the driver engaged in suspicious behavior of any sort, and Officer Lenihan testified that when he returned to the driver’s side of the vehicle after placing appellant in the patrol car, “the driver was outside of the car and had his hands on the hood, I believe” (N.T. at 46).

A review of case law pertaining to constructive possession indicates the difficulty of drawing bright lines in this area of the law. In Commonwealth v. Thomas, 254 Pa.Super. 505, 386 A.2d 64 (1978), for example, police officers stopped a car being driven by appellant and, as they approached the car, saw appellant reach down with his right arm and hand toward the gas pedal. Upon searching the car, the officers found a package containing heroin in the vicinity of the gas pedal. Although another person had been in the car with appellant, this Court held that the jury could reasonably have inferred from the evidence of appellant’s proximity to the location of the drugs and his reaching in that direction immediately before the drugs were found that appellant had controlled the heroin and intended to exercise that control. Id.., 254 Pa.Superior Ct. at 509, 386 A.2d at 66.

In Commonwealth v. Boatwright, 308 Pa.Super. 41, 453 A.2d 1058 (1982), this Court reached a different result on somewhat similar facts. A police officer responded to a call concerning three “suspicious” men in a parked car and, approaching the car, saw appellant, seated in the front, passenger seat, “moving towards his left rear.” Id., 308 Pa.Superior Ct. at 42, 453 A.2d at 1058. The officer saw only the movement of appellant’s body, not his hand or arm. Another passenger occupied the left rear seat. On the left rear floor the officer found a gun, which was registered to a person not in the car. This Court held that the testimony of the police officer as to appellant’s movement toward the left rear of the vehicle, which was the only evidence other than appellant’s mere presence to connect him with the firearm, was insufficient to prove appellant’s possession of the firearm beyond a reasonable doubt. Id., 308 Pa.Superior Ct. at 43, 453 A.2d at 1059.

In Commonwealth v. Cruz Ortega, 372 Pa.Super. 389, 539 A.2d 849 (1988), police officers had received a tip that cocaine was located in a car being driven by one Rolando Martinez. The officers followed the car and, shortly before it came to a stop, observed appellant, sitting in the front passenger’s seat, leaning over his seat. Appellant was subsequently convicted of possessing the cocaine found under his seat. This Court affirmed the judgment of sentence, noting that “constructive possession may be found in either or both actors if contraband is found in an area of joint control and equal access.” Id., 372 Pa.Superior Ct. at 393, 539 A.2d at 851 (quoting Commonwealth v. Mudrick, 510 Pa. at 309, 507 A.2d at 1214). Pointing out that the glove compartment of the rented car contained a money order purchased by appellant, the Court concluded that appellant had as much control of and access to the vehicle as did Martinez. As to the cocaine itself, the Court explained that “[t]he cocaine was found under the seat in which appellant was sitting. Before police stopped the vehicle, appellant was observed leaning over in his seat. We conclude that this evidence is sufficient to establish access to and control of the contraband.” Id., 372 Pa.Superior Ct. at 393 n. 1, 539 A.2d at 851 n. 1.

Applying the lessons of these cases to the evidence in the case before us, and reviewing the evidence and the reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229 (1984), we conclude that the evidence was sufficient to prove appellant’s constructive possession of the contraband found underneath the vehicle. Appellant’s access to and control over the area in which the contraband was found was greater than that of the driver and the other passenger, inasmuch as appellant was the only one of the three to exit the vehicle on the passenger side. In addition, only appellant was observed walking back and forth near the car and “fidgeting around.” Furthermore, any uncertainty as to whether the female passenger moved from between the front seats into the right passenger seat, while it could have formed the foundation of a reasonable doubt on the part of the factfinder, does not as a matter of law create a reasonable doubt which requires us to overturn the factfinder’s verdict. Accordingly, having found appellant’s argument to be without merit, we affirm the judgment of sentence.

Judgment of sentence affirmed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

I disagree with the majority’s conclusion that the evidence was sufficient beyond a reasonable doubt to support a finding of constructive possession.

As the majority itself notes, the evidence adduced to support a finding of constructive possession was equivocal. Virtually all of the evidence cited by the majority was as consistent as not with a negative inference that the contraband was possessed by appellant. According to Officer Lenihan’s testimony, the female passenger had moved from the center to the passenger seat, on which side the door was open and the window rolled down, and thus had as much access to the area where the contraband was found as did appellant. Under these circumstances, a reasonable doubt is raised as to whether it was appellant who was in constructive possession of the contraband. See, Commonwealth v. Juliano, 340 Pa.Super. 501, 490 A.2d 891 (1985); Commonwealth v. Wisor, 466 Pa. 527, 353 A.2d 817 (1976); Commonwealth v. Boatwright, 308 Pa.Super. 41, 453 A.2d 1058 (1982).

While it is true that we must view the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner, it is equally true that the Commonwealth has the burden of producing evidence sufficient to sustain its propositions beyond a reasonable doubt in the first instance. The entire tenor of the majority’s opinion inferentially places the burden upon appellant to disprove rather than upon the Commonwealth to prove possession. I believe that this is error and therefore

      . In his brief, appellant raises a second issue: Was the police officer’s act of ordering appellant out of the car an unreasonable intrusion upon his personal liberty? At oral argument, counsel for appellant withdrew this issue.

      . The trial court subsequently granted appellant’s motion to suppress the contents of the wallet. The suppression ruling is not at issue in this appeal.

      . Our review of the record did not reveal any evidence indicating that appellant is in fact a smoker.

      . Neither Ms. Mullineaux, Mr. Miller, nor appellant testified at trial.

      . The dissenting opinion does not mention the testimony concerning appellant’s suspicious movements, nor does it acknowledge that Officer Lenihan eventually admitted his inability to recall whether the female passenger, who was initially seated between the front seats, had ever moved to the passenger seat on the right. In light of this testimony, we do not agree that the female passenger "had as much access to the area where the contraband was found as did appellant” (Dissenting Opinion at 10).


author: ROWLEY, Judge:

text:
    579 A.2d 906
    In re ADOPTION OF B.J.R. Appeal of M.R., Natural Mother of B.J.R., Robert Petrosky, Guardian ad Litem, Armstrong County Children and Youth Services.
    Superior Court of Pennsylvania.
    Argued June 25, 1990.
    Filed Aug. 14, 1990.

      Bradley K. Hellein, Asst. Dist. Atty., Kittanning, for appellant.
    Robert Petrosky, Kittanning, for Robert Petrosky, participating party.

      James A. Favero, Kittanning, for Armstrong County Children & Youth Services, participating party.
    Before ROWLEY, JOHNSON and HUDOCK, JJ.
   ROWLEY, Judge:

This appeal concerns the involuntary termination of the parental rights of appellant, M.R., with respect to her twelve-year-old son, B.J.R. On May 23, 1989, following a hearing, the trial court entered a decree nisi terminating appellant’s parental rights. On October 18, 1989, the trial court entered an order denying and dismissing appellant’s exceptions and making final the decree nisi. In this timely appeal of the final decree, appellant raises two issues: 1) whether the trial court erred in concluding that appellant’s paramour had sexually abused B.J.R.; and 2) whether the trial court erred in concluding that appellant could not, within a reasonable time, cure the circumstances that had required BJ.R.’s placement in foster care. For the reasons set forth below, we affirm the final decree terminating appellant’s parental rights.

In a proceeding to terminate parental rights, the party seeking termination must prove by clear and convincing evidence that grounds for termination exist. In re Adoption of J.J., 511 Pa. 590, 594, 515 A.2d 883, 885-86 (1986) [quoting Matter of Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984)]. In the present case, termination of appellant’s parental rights was sought pur suant to 23 Pa.C.S. § 2511(a)(5), which reads as follows:

The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

23 Pa.C.S. § 2511(a)(5). As this Court made clear in In re P.A.B., 391 Pa.Super. 79, 570 A.2d 522 (1990), an involuntary termination of parental rights pursuant to § 2511(a)(5) requires proof of the five elements specified in the statute:

1) the child has been removed from parental care for at least six months;
2) the conditions which led to the child’s removal or placement continue to exist;
3) the parents cannot or will not remedy the conditions which led to removal or placement within a reasonable period of time;
4) the services reasonably available to the parents are unlikely to remedy the conditions which led to removal or placement within a reasonable period of time; and
5) termination of parental rights would best serve the needs and welfare of the child.

Id., 391 Pa.Superior Ct. at 85, 570 A.2d at 525. The fifth factor, whether termination would best serve the needs and welfare of the child, is not “a mere formality flowing from the existence of the preceding four elements” but is instead “a discrete consideration.” Id. “A determination that the Parents’ incapacity results in an inability to care for the children and that the condition cannot improve over time is alone insufficient to warrant termination under 2511(a)(5).” Id., 391 Pa.Superior Ct. at 91, 570 A.2d at 528. We note, in addition, that § 2511(b) provides that “[t]he court in terminating the rights of a parent shall give primary considera,tion to the needs and welfare of the child.”

Where, as here, the trial court has found that the petitioner’s burden of proof has been met and has accordingly terminated the rights of a parent,

the scope of appellate review is limited to the determination of whether the decree of termination is supported by competent evidence. If the decree is adequately supported by competent evidence, and the chancellor’s findings are not predicated upon capricious disbelief of competent and credible evidence, the adjudication of the Orphans’ Court terminating parental rights will not be disturbed on appeal.

In re Adoption of J.J., 511 Pa. at 593-94, 515 A.2d at 885 (quoting Matter of Adoption of G.T.M., 506 Pa. at 46, 483 A.2d at 1356) (citations omitted). Furthermore,

unless the Orphans’ Court abused its discretion or committed an error of law, its findings are entitled to the same weight given a jury verdict. The trial court, as trier of fact, is the sole judge of credibility of witnesses. Conflicts in testimony are to be resolved by the trier of fact and we may not disturb a decree of Orphans’ Court based upon findings supported by the record unless Orphans’ Court applies an incorrect legal standard.

Id. 511 Pa. at 594, 515 A.2d at 886 (citations omitted).

Mindful of this scope of review, we turn to the facts of the case before us. B.J.R., who was born on September 80, 1977, is an educable mentally retarded child. Appellant, his natural mother, is also of limited intellectual ability. The parental rights of BJ.R.’s father, one S.B., were also involuntarily terminated by the trial court. R.B., who has had no contact with the child, did not appear in the termination proceedings and has not challenged the termination of his parental rights.

The involvement of Armstrong County Children and Youth Services (“CYS”) began in 1981, when services were offered to appellant and B.J.R. in an attempt to address the child’s developmental delays. According to Jennifer Heck-man, the CYS caseworker assigned to the family, B.J.R.’s developmental delays continued and appellant proved unable to meet his special needs, leading CYS to petition in October 1984 to have the child adjudicated dependent. The petition was granted, and B.J.R. was placed in a foster home. At that time the agency’s goal was for the child to return home.

In January 1986, as a result of episodes of regressive behavior that appeared to be connected to appellant’s visits with him, B.J.R. was placed in the John Merck Program for Multiply Disabled Children at the Western Pennsylvania Psychiatric Institute and Clinic. In April 1986 he was placed in a foster home in Washington, Pennsylvania, operated by the PRYDE program of the Pressley Ridge School, where he continues to reside. The agency’s goal for the child was changed to adoption in May 1986 because, as Ms. Heckman explained,

[B.J.R.] had been in placement for almost two years ... and the agency had observed no major improvement in any of the reasons that [he] had been put in placement to begin with. Due to the fact that we need to plan for permanency for these children and provide them with a home in which they feel secure, stable and know that they will not be removed from we felt it was best to terminate [the] rights of [appellant] and plan for permanency for [B.J.R.].

N.T. at 20.

In January 1987 appellant moved to Westmoreland County. She lives with one T.U. and their daughter, M., who was born in 1984. Services to the family are now provided by the Children’s Bureau of Westmoreland County.

On March 17, 1987, CYS of Armstrong County filed a petition to terminate the parental rights of appellant and R.B. with respect to B.J.R. At a hearing on March 24, 1988, extensive testimony was taken from persons who had been involved in the provision of services to appellant and B.J.R. Jennifer Heckman, the Armstrong County CYS caseworker, testified that when the agency first became involved, services were provided to B.J.R. through Head-start and United Cerebral Palsy and that appellant was encouraged to attend the CYS parents’ training group and a Parents Anonymous group. After B.J.R. was placed in foster care, Ms. Heckman testified, appellant was referred to the Family Counseling Center and the nutrition program offered by the Penn State Extension Service, as well as the Parents Anonymous group and the parent training group. After B.J.R. entered the PRYDE foster home, appellant was also referred to the PRYDE program’s natural parents group.

According to Ms. Heckman, the attendance of appellant and T.U. at the counseling center, to which the agency provided transportation when necessary, was sometimes very good and sometimes very sporadic. They attended the Parents Anonymous group “faithfully” (N.T. at 9), but appellant ceased attending the PRYDE natural parents group after CYS changed its goal for B.J.R. to adoption. Ms. Heckman testified that from the time B.J.R. entered placement to the time the family moved from Armstrong County, “[a]ny progress that was observed was very minimal and was subsequently lost at other points in time” (N.T. at 17). She explained further as follows:

Q: Isn’t it true that [appellant] generally complies with all of the services ... that are recommended or proposed for her?
A: We have never had a problem, a long standing problem, with [appellant] not attending services that are asked of her. The problem we experienced with her is internalization of the issues, recommendations and treatment fidelities that are used with her.
Q: The problem isn’t that she’s not interested, the problem is she can’t internalize these things?
A: Right.

N.T. at 19. Ms. Heckman, who had been present for the majority of visits between B.J.R. and appellant when the child was in foster care in Armstrong County, stated that “the interaction between the two of them would be very minimal” (N.T. at 12), that on one occasion B.J.R. ran through the halls of the office while appellant stared out the window and appeared unable to control his behavior, and that the visits did not improve over time. Asked why the agency believes that appellant has been unable to remedy the situation that led to BJ.R.’s placement, Ms. Heckman explained that

the situation which led to the placement was the fact that she was unable to meet his special needs and, you know, the environment in the home was growth inhibiting instead of encouraging him to develop at an appropriate rate of speed, he was losing developmental talks [sic] and her inability to internalize these issues has not led her to be able to inhibit [sic] his growth.

N.T. at 21.

Dr. Martin Fialkov, a specialist in child psychiatry, testified concerning the evaluation of appellant, T.U., and B.J.R. that he conducted on November 14, 1987. Dr. Fialkov described B.J.R. as “a very limited child” (N.T. at 31) who was probably functioning at a three- or four-year-old level or a little higher and who needs parents who understand his potential, as well as considerable support and protection against harming himself or being harmed. With regard to appellant’s prospects for improvement, he offered the following opinion:

My opinion was that ... her ability to acquire the necessary parenting skills, ... in other words her ability to be flexible and make adjustments for the child and to acquire insight to care for this child was extremely unlikely---- I felt in the foreseeable future within the time that the child could benefit from this which would be the next eight years, I didn’t feel that she would make sufficient gains to be able to provide for the child because of her own limitations both intellectually in terms of her parenting knowledge ... which the agency I understand had been attempting to supplement ... so I think that there’s resources available in the community and I think all of those have been applied to her and that at the point I saw her, she had not made sufficient progress to convince me that as I said in the foreseeable future where this kid can benefit from it that she would be able to meet his needs.

N.T. at 37. Dr. Fialkov explained that in his opinion appellant’s inability to be an effective parent involved not only her intellectual deficits but also “experiences of her own in terms of growing up ... what she experienced in [her] family ... [lack of] adequate schooling, a lot of factors combined to ultimately make her incompetent to parent this child” (N.T. at 48). He also suggested, in reference to appellant’s intellectual and psychological limitations, that a child such as B.J.R. “would make very severe demands on [a] very limited resource” (N.T. at 39).

With regard to the interaction between appellant and B.J.R., Dr. Fialkov observed that they evidenced some “tenuous common ground” (N.T. at 29) but basically interacted as polite strangers. He also noted that B.J.R. described an incident of sexual abuse committed against him by T.U., appellant’s companion, and that appellant averted her eyes when the child described the incident. Although both appellant and T.U. denied that such an incident had occurred, Dr. Fialkov testified that “I was just struck by a child whose verbal abilities were so limited giving me an unusually frank description of what had occurred and I had assumed that that had made some impression on him” (N.T. at 30).

In his report, which is included in the original record, Dr. Fialkov concluded that T.U. is at high risk for abusive parenting, and he noted that Carol Patterson, a child psychologist who also had evaluated appellant, T.U., and B.J.R., had reached the same conclusion with regard to appellant. With regard to the interaction between appellant and B.J.R., Dr. Fialkov noted in his report that although appellant encouraged B.J.R. to hug and kiss her, which he did, and they appeared to have a bond with something in common to discuss, the bond was rather limited and not sufficient to sustain conversation for more than a few minutes. Dr. Fialkov concluded that BJ.R.’s residual ties with appellant were not enough to sustain the mother-child relationship, although he also expressed concern about the child’s adoptability.

Ms. Patterson, the child psychologist, testified that I felt that [appellant] had many difficulties that would preclude her from being able to parent. Some of them are interpersonal difficulties, emotional instability, a lack of parenting skills, an intelligence functioning within the border line range of ability, past physical and sexual abuse conducted by her parents when she was growing up, her past abuse of alcohol substance, and her passive rather dependent personality makeup that makes her dependent upon others for really everyday support in her current living arrangements.

N.T. at 55. Ms. Patterson explained that BJ.R.’s problems “will not get better per se” as he grows older, but rather that they will change and he will continue to require “consistent structured parenting” (N.T. at 68). She testified that she considered T.U. to be at high risk for child abuse, and in her report, as noted earlier, she said the same of appellant. In her report Ms. Patterson also observed, inter alia, that, based on appellant’s responses to a parenting inventory test, appellant “does not have appropriate developmental expectations for children,” “lacks an understanding of normal child growth and development,” “lacks empathy for children,” “believes in corporal punishment ... and lacks knowledge of alternatives to corporal punishment,” and “may reverse family roles in that she may tend to use children to meet her needs ...” (Psychological Evaluation of M.R. at 4). In her report Ms. Patterson also noted BJ.R.’s statement that he enjoys visiting with appellant, as well as his foster mother’s observation that he shows no ill effects after the visits. However, Ms. Patterson concluded that B.J.R. feels himself an integrated part of his foster family and tends to perceive them as his family and as his primary caretakers.

Judith Logan, a caseworker for the Westmoreland County Children’s Bureau who has been assigned to appellant’s family since January 1987, testified that M., the daughter of appellant and T.U., exhibited some slight developmental delays, that “there are ... concerns ... that there isn’t enough interaction between [M.] and her parents to upgrade her skills” (N.T. at 74), and that “there is a possibility that [M.’s] parents are not following through with the recommendations of the United Cerebral Palsy to do ... the daily re-enforcement of what they’re trying to accomplish at the preschool” (N.T. at 75). She conceded that M. was appropriately fed, appellant’s home was acceptably clean, there had been no founded allegations of abuse or neglect, she had not observed any problems with discipline or the lack thereof, and the Children’s Bureau was not contemplating a dependency action on behalf of M. It was her opinion, however, that because B.J.R. is a special needs child, he would not receive the care that he requires in appellant’s home.

Ann Grimes Essay, a program supervisor at the Pressley Ridge PRYDE Program, testified that B.J.R. had made steady progress in intellectual and motor skills since his placement in the PRYDE foster home. She explained that one of the main reasons that appellant no longer attended the natural parents’ group, which meets in Pittsburgh, was her difficulty in arranging transportation, but in addition she “[r]eally doesn’t seem to have an interest in it” (N.T. at 83). Ms. Essay described the interaction between appellant and B.J.R. during appellant’s visits as “positive” but “very minimal” (N.T. at 84). Surface comments are passed back and forth between them for the first five or ten minutes, she explained, and for the remainder of the visit B.J.R. plays with M. or the two of them play with his foster brothers and sisters. Ms. Essay noted that B.J.R. has asked that his foster mother be present during his visits with appellant.

Daffney Roofner, a caseworker at the Armstrong County Family Counseling Center, testified concerning the services provided to appellant from May of 1985 to January of 1987. She explained that appellant came to the Center twice a month, an in-home worker went to appellant’s home once a week, and appellant’s attendance was good. However, she also stated that she and appellant would agree on a goal to be met, such as having appellant bring her daughter to the Center dressed in clean, appropriate clothing and with two toys, and “[s]he would have temporary success in meeting a goal, but as you move on to the next one if there was not re-enforcement of the original goal, that would be lost” (N.T. at 89), and thus they would be required to “go backwards or simplify the first goal” (N.T. at 90). Asked whether appellant’s abilities improved over time, Ms. Roofner replied that “[t]here would be times when there would be improvement, although that seemed to have deteriorated towards the end ...” (N.T. at 90). She also testified that on appellant’s last visit before leaving Armstrong County, M. was dirty and not appropriately dressed for the winter weather. Ms. Roofner stated that she and appellant discussed B.J.R. only in general terms because they could not get beyond the basic needs of M., the child who was in appellant’s care.

Finally, the court heard the testimony of appellant and T.U. Appellant stated that she thought her progress had improved since she began meeting with the caseworkers, that she had learned such things as preparing nutritious meals, the need to work with M. on colors and drawing, and methods of discipline for B.J.R. such as “time out,” i.e., “[s]it him in a chair and don’t hit him and tell him what he did wrong ...” (N.T. at 102). She testified that she considered herself able to care for both of her children and that she would be able to gain the skills necessary to take care of B.J.R. “if I don’t have nobody bugging me about it ...” (N.T. at 100). Although appellant stated that she would continue to work with CYS if B.J.R. were returned to her home, she also expressed resentment at the presence of caseworkers “twenty-four hours a day” (N.T. at 107) and suggested that they were not trying to help her but instead “they wanted M.” (N.T. at 108). Appellant acknowledged that B.J.R. was somewhat limited because “he’s slow” but also expressed the belief that he might “[b]e a president some day” (N.T. at 108). She testified that B.J.R. talks about M. and vice versa and that during visits he suggests playing with her (appellant) and M. and wants to talk about what has been going on at home. In his testimony, T.U. denied that the sexual abuse described by B.J.R. had occurred.

In the opinion accompanying the decree nisi of May 23, 1989, the trial court expressed concern about appellant’s own history as an abused child and her high potential for being an abusive parent, combined with the fact that B.J.R. had been sexually abused by T.U., with whom appellant continues to reside “despite her apparent knowledge of incidents) of his sexual abuse of this child” (Trial Court Opinion at 7). With regard to appellant’s parenting skills, the court observed that

[d]espite the rather diligent efforts of [appellant] to attend and participate in at least some of the programs offered to her, the evidence shows that she has been unable to gain true insight and understanding with regard to her son’s disabilities. Importantly, she has been unable to acquire and assimilate the knowledge and skills necessary in order to provide the day-to-day care and supervision which her son requires now and will acquire [sic] into the foreseeable future.

Trial Court Opinion at 7. While acknowledging appellant’s interest and concern, the court found her assessment of her present ability to provide adequate care for her son to be “quite unrealistic” (Trial Court Opinion at 8). In sum, the court observed, “[t]he conclusion seems inescapable that this mother cannot now or in the relevant future provide suitable and adequate care for the child so as to remedy the condition which led to his removal from her home despite the fact that all services reasonably available were provided or offered to her in an effort to achieve such a remedy” (Trial Court Opinion at 8-9). Termination of appellant’s parental rights would best serve the child’s needs and welfare, the court held, adding that

[o]ur conclusion is buttressed by the facts, noted by several witnesses, that the child seems to have only a loose bond with the mother; that the child seemed to regress in behavior following visits with the mother[]; that the mother failed/refused to protect him from sexual abuse in the home and failed/refused to take necessary steps to preclude recurrence of sexual abuse even after she had clear knowledge of its original occurrence; and that the alleged perpetrator of the sexual abuse (the mother’s paramour) continues to reside in her home and has not completed any course of counseling or treatment.

Trial Court Opinion at 9-10. The court concluded that CYS had met its burden of establishing by clear and convincing evidence that appellant’s parental rights should be terminated.

In the opinion accompanying the final decree of October 18, 1989, the court acknowledged that appellant had attended the majority of programs offered to her and had made some progress, but held that “there was ample evidence presented to demonstrate that though [appellant] attends the class sessions and meetings, she is unable to internalize and/or utilize in practice the information given her” (Trial Court Opinion at 2). The court also noted that the same result would be reached even if the allegation of sexual abuse were disregarded.

In this appeal, both CYS and the guardian ad litem appointed to represent B.J.R. assert that the trial court’s conclusions are amply supported by the evidence of record. Appellant, on the other hand, contends that the trial court relied almost exclusively on the testimony of Dr. Fialkov and Ms. Patterson and that their analysis was “at best superficial and at worst completely subjective” (Brief for Appellant at 9). She also maintains that she loves her son and he loves her, that “where a parent continues to try to retain her relationship with her son even though it is hard for her to succeed, the Court should not interfere with the mother/child bond” (Brief for Appellant at 9), and that although she may be less than a perfect mother, the court erred in terminating her parental rights.

We are confronted in this case with the difficult situation of a parent whose desire to provide adequate care for her child is evident, but whose ability to do so is in doubt. Our Supreme Court, interpreting the legislature’s enactment of the Adoption Act of 1970, has held that a parent who is incapable of performing parental duties is equally as unfit as one who is unwilling to do so. In re Adoption of J.J., 511 Pa. at 605, 515 A.2d at 891 [quoting In re William L., 477 Pa. 822, 345, 383 A.2d 1228, 1239 (1978), cert. denied sub nom. Beatty v. Lycoming County Children’s Services, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978)]. Accordingly, proceedings to terminate the parental rights of mentally or physically impaired parents do not require the application of a more stringent “beyond a reasonable doubt” burden of proof. Id. 511 Pa. at 607, 515 A.2d at 892. “What is important is the demonstrated willingness and ability of the parent to perform, at a minimal level, his or her parental duties.” Id., 511 Pa. at 608, 515 A.2d at 893.

Having reviewed the evidence of record, including the hearing transcript and the reports of Dr. Fialkov and Ms. Patterson, as well as the briefs and arguments of the parties, we conclude that the trial court’s adjudication should be affirmed. We reach this conclusion with some reluctance, as it is apparent that appellant has exerted considerable effort in an attempt to become a better parent. Nevertheless, the record before us indicates that appellant’s efforts, at least with respect to B.J.R., have been and would continue to be unsuccessful. Daffney Roofner, the Family Counseling Center caseworker, testified that appellant was unable to retain what she had learned without constant reinforcement, making it impossible for appellant and Ms. Roofner to move beyond M.’s basic needs to a consideration of the requirements of caring for B.J.R. Ms. Roofner’s estimate of appellant’s abilities echoed that of Jennifer Heckman, the CYS caseworker, who testified that the minimal progress made by appellant “was subsequently lost at other points in time” because appellant was unable to internalize the parenting skills that were taught to her. Appellant’s difficulty in learning and retaining parenting skills is compounded by her inability, as noted not only in the psychiatric and psychological evaluations but also in the trial court’s evaluation of appellant’s testimony, to understand BJ.R.’s needs and limitations. Appellant’s evident mistrust of the motives of the caseworkers who keep “bugging” her is further evidence that she is unlikely to make greater progress in the foreseeable future.

We emphasize that this is not a case in which only half-hearted attempts have been made to assist a parent of limited intellectual ability in gaining the necessary child-rearing skills. Interest of C.M.E., 301 Pa.Super. 579, 448 A. 2d 59 (1982). To the contrary, it is a case in which numerous services have been provided to appellant for a number of years, with little or no change in her ability to provide the “consistent structured parenting” required by B. J.R. Of considerable significance is the fact that none of the witnesses who testified at the hearing, other than appellant herself, offered any hope that appellant would be able to acquire the ability to care for B.J.R. within a reasonable period of time. Our Supreme Court has held that where a parent’s own testimony was the only evidence that she would be capable of caring for her child, and the trial court obviously regarded the parent’s testimony as incredible, this Court erred in finding that the parent had the potential to develop the necessary parenting skills and reversing the termination decree on that basis. Matter of Adoption of C.A.E., 516 Pa. 419, 424, 532 A.2d 802, 805 (1987). See also In re Adoption of T.M., 389 Pa.Super. 303, 566 A.2d 1256 (1989) (where outcome of parent’s drug addiction treatment was problematical, and caseworker and psychologist testified that parent had not remedied the conditions that led to child’s placement, termination of parental rights was justified); In re Quick, 384 Pa.Super. 412, 559 A.2d 42 (1989) (where appropriate treatment would require several years of intensive therapy, parent had not availed herself of treatment, and there is substantial likelihood treatment would be unsuccessful, termination of parental rights was justified).

We note also, with reference to the fifth factor enumerated in 23 Pa.C.S. § 2511(a)(5), that in its decree nisi the trial court concluded that BJ.R.’s needs and welfare would best be served by the termination of parental rights. The phrase “needs and welfare” denotes not only physical requirements such as food, clothing, and shelter, but also the intangible factor of parental love, thus requiring the court to examine the nature of the parent-child relationship. In re P.A.B., 391 Pa.Super. at 85, 570 A.2d at 525.

That the child has already been removed from the home, as is always the case in a termination proceeding instituted under 2511(a)(5), does not in itself mean that a beneficial parent-child bond does not exist. This fact alone cannot be dispositive of whether termination best serves the child’s needs and welfare. Thus, to apply the statute correctly, there must be an inquiry into the status of the bond, regardless of whether the parents have a physical or mental incapacity.

Id., 391 Pa.Superior Ct. at 86, 87, 570 A.2d at 526. Because “[t]he bond with parents is unique and irreplaceable, ... preservation of family ties [is] prima facie in the best interests of the child.” Id., 391 Pa.Superior Ct. at 86, 570 A.2d at 522. In In re P.A.B., the record revealed that a beneficial and loving bond existed between the mentally handicapped parents and their three children and that the only suggestion of alternative permanent situations for the children was a statement indicating that one of the children might possibly be adopted by her foster parents. Id., 391 Pa.Superior Ct. at 90, 570 A.2d at 528. This Court concluded that termination of parental rights would be detrimental to the needs and welfare of the children “not only because it would sever an important existing parent-child bond, but also because nothing will take the place of this bond.” Id.

In the present case, as noted earlier, the trial court found that “the child seems to have only a loose bond with the mother” (Trial Court Opinion at 9). Our review of the pertinent evidence confirms this finding. At the same time, we note that there is nothing in the record to indicate that an adoption is pending for B.J.R. Accordingly, while this case resembles In re P.A.B. in at least one respect, the absence of an identified adoptive family, it differs from In re P.A.B. in another respect, the strength of the parent-child bond.

This difference is, in our opinion, crucial to the outcome of the case. While this Court has acknowledged the importance of preserving a beneficial parent-child relationship, it has also recognized that the state should not “seek to preserve in law a relationship which no longer exists in fact, with the result that the child is consigned indefinitely to the limbo of foster care or the impersonal care of institutions.” In re P.A.B., 391 Pa.Super. at 88, 570 A.2d at 526 (quoting In re William L., 477 Pa. at 348-49, 383 A.2d at 1241). We consider it reasonable to assume that as B.J.R. continues to live with and depend upon his foster family, his relationship with appellant, already tenuous, will become even more so, and that as he grows older, his “adoptability” will diminish. These factors argue in favor of termination so that a permanent plan for the child’s future can be devised. Although the record offers no indication that CYS has found a prospective adoptive family for B.J.R., this fact does not serve to bar the involuntary termination of parental rights where such termination is otherwise warranted, inasmuch as 23 Pa.C.S. § 2512(b) provides that an agency bringing a petition for involuntary termination “shall not be required to aver that an adoption is presently contemplated nor that a person with a present intention to adopt exists.” See also In re P.A.B. (agency may bring termination petition even though adoption is not imminent).

As noted earlier, we may not disturb the trial court’s decree if the findings upon which it is based are supported by the record and a correct legal standard was applied. In the present case, the trial court found that appellant is unable to remedy, within a reasonable period of time, the conditions that led to BJ.R.’s removal from her home and, in addition, that there is only a “loose” bond between appellant and B.J.R. In light of these findings, which are supported by the evidence of record, we conclude, as did the trial court, that CYS has met its burden of proving by clear and convincing evidence that the child’s needs and welfare will best be served by the termination of appellant’s parental rights. Accordingly, the final decree terminating appellant’s parental rights with respect to B.J.R. is affirmed.

Decree affirmed.

      . “The [trial] court pleadings contain the child’s full name rather than his initials throughout these proceedings. We do not in any way condone the use of the child’s name and accordingly have changed the name to initials in the caption and throughout the opinion.” Matter of Adoption of C.A.E., 516 Pa. 419, 420 n. 1, 532 A.2d 802, 803 n. 1 (1987).

      . In its opinion accompanying the decree nisi, the trial court indicated that BJ.R.’s first foster home was also connected with the PRYDE program. However, the record indicates otherwise. Ann Grimes Essay, program supervisor at the Pressley Ridge PRYDE Program, testified that B.J.R. entered the program on April 8, 1986.

      . We do not know the basis for the trial court’s implication that there may have been more than one incident of sexual abuse.

      . This observation by the trial court apparently refers to BJ.R.’s behavior prior to his placement in the PRYDE foster home. Carol Patterson stated in her report that B.J.R.’s present foster mother noticed no ill effects after his visits with appellant.

      . In reaching this conclusion, we have disregarded the allegation that B J.R. was sexually abused by appellant’s paramour. Therefore, we do not address appellant’s objection to the trial court’s consideration of the sexual abuse allegation.


author: MONTGOMERY, Judge:

text:
    579 A.2d 915
    TURNER CONSTRUCTION, INC., Appellee, v. AMERICAN STATES INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 9, 1990.
    Filed Aug. 16, 1990.
    Petition for Allowance of Appeal Denied Jan. 11, 1991.

      Jack W. Plowman and Marshall J. Conn, Pittsburgh, for appellant.
    Brian W. Ashbaugh and Rhoda Shear Neft, Pittsburgh, for appellee.
    Before CAVANAUGH, JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The plaintiff-appellee, Turner Construction, Inc. instituted this action against defendant-appellant, American States Insurance Company, seeking damages pursuant to a performance bond which American States had issued on behalf of Ram Construction Company. Ram had been hired by Turner to act as a subcontractor on a project in Pittsburgh. After a trial, a jury rendered a verdict in favor of Turner and against American States, in the sum of $349,200.00, the amount of the surety bond. Thereafter, American States filed a motion for post-trial relief, seeking either judgment n.o.v. or the grant of a new trial. The motion was denied by the trial court and judgment in favor of Turner was thereafter entered. The instant appeal followed.

The record shows that in July, 1980, Turner entered into an agreement with Oxford Development Company which called for Turner to act as construction manager for the construction of a garage in Pittsburgh for Oxford. As construction manager, Turner contracted with various subcontractors to fulfill the construction tasks necessary to complete the garage project.

One of the subcontractors was Ram, which entered into a contract with Turner to perform excavating and backfilling work on the project. The excavation work was performed first. The backfilling took place after the foundation for the garage was constructed by others. The backfilling function involved placing earth materials between the completed foundation walls and sheeting which had been erected to hold back the surrounding earth materials while the foundation was being constructed. The excavation work performed by Ram was apparently done satisfactorily. However, its completion of the backfilling operation gave rise to the dispute underlying this action.

Oxford, as owner of the project, was not a party to the contract between Turner and Ram. Under the terms of the Turner-Ram agreement, Ram was required to post a performance bond in the amount of $349,200.00, to cover its work on the project. American States issued such a performance bond, which named it as surety, identified Ram as the principal, and designated Turner as the sole obligee. Oxford was also not a party to the surety bond.

The Turner-Ram contract contained certain specifications for Ram in completing the backfilling operations. Included were requirements for the compacting of the materials which were to be used for the backfilling operation, including the thickness of each layer of material. Under the contract, Ram was held responsible for performing all work in accordance with contract documents.

Ram began the backfilling operations in May, 1982, and finished them on August 6, 1982. During the course of such operations, Ram submitted to Turner some samples of the materials being used. On a couple of occasions, Turner raised questions concerning the ongoing efforts of Ram, and Ram took corrective action to address questions or complaints raised by Turner. Moreover, there were a couple of tests performed during the backfilling operation, to determine the degree of compaction and/or other matters.

Ram’s work was apparently accepted by Turner and Ram was paid by Turner on December 6, 1982. In the late summer or early fall, 1983, Turner and Oxford became aware of subsidence of sidewalks around the project, in the areas which had been backfilled by Ram. By letter dated February 1, 1984, Oxford gave Turner a written notice of the problem. Turner thereafter notified Ram of the problem by a letter dated February 15, 1984. When it received no timely response to its letter, Turner informed Ram’s surety, American States, of the problem. Thereafter, Ram responded to Turner in a letter dated August 9, 1984, denying responsibility for the sidewalk subsidence and expressing a refusal to repair the problem.

The agreement between Turner and Ram, in Article XXI, which was titled “Guarantees”, including the following pertinent provisions:

The Subcontractor [Ram] hereby guarantees the Work to the full extent provided in the Plans, Specifications, General Conditions, Special Conditions and other Contract Documents.
The Subcontractor shall remove, replace and/or repair at its own expense and at the convenience of the Owner [Oxford] any faulty, defective or improper work, materials or equipment discovered within one (1) year from the date of the acceptance of the Project as a whole by the Architect and the Owner or for such longer period as may be provided in the Plans, Specifications, General Conditions, Special Conditions or other Contract Documents.
Without limitation by the foregoing, the Subcontractor shall pay in addition for all damage to the Project resulting from defects in the Work and all costs and expenses necessary to correct, remove, replace and/or repair the Work and any other work or property which may be damaged in correcting, removing, replacing or repairing the Work.

The evidence showed that the project was “accepted as a whole” by Oxford on June 26, 1984. As indicated earlier, on August 9, 1984, Ram notified Turner of Ram’s refusal to attend to the sidewalk problems attributed to improper backfilling. This civil action was commenced by Turner on June 21, 1985.

In its appeal to our court, American States raises three principal contentions of error. First, it claims that a recovery by Turner from American States on the subcontractor’s surety bond will create a windfall, where Turner had no underlying liability to Oxford for any claim of damages. In support of this position American States contends that Oxford did not prove any claim against Turner, and that any claim by Oxford against Turner was time-barred. Further, American States maintains that Oxford waived any claim it might have against Turner by its final payment, even though the damage allegedly resulting from Ram’s defective work was known at the time.

We agree with the trial court’s determination that such arguments by American States provided no defense for the claims asserted by Turner in this action. Turner did not bring this action as an indemnity action, seeking reimbursement for damages or liability to Oxford. Rather, this suit involved a claim for breach of a construction contract between Turner and Ram, under which performance was secured by the bond of American States.

The law in our Commonwealth is specific in describing what types of agreements shall constitute contracts of suretyship. The Act of July 24, 1913, P.L. 971, § 1, 8 P.S. § 1 provides that every written agreement made by one person to another for the default of another, shall subject such person to the liabilities of suretyship unless such agreement shall contain words substantially providing that the agreement is not intended to be a contract of surety-ship. The agreement between Turner, Ram and American States included no language which either expressly or impliedly disclaimed a suretyship obligation from American States to Turner with respect to Ram’s satisfactory completion of its construction contract with Turner. In fact, the underlying contract between Turner and Ram was incorporated by reference into the bond. The bond language provides for American States to guarantee to Turner the full performance by Ram of its obligations under the subcontracting agreement.

Moreover, Oxford was not a party to the performance bond provided by American States. The bond contains a clause which states that its guarantees would be for the sole benefit of the obligee, which was Turner.

Accordingly, any liability or claim between Oxford and Turner is not relevant. It is clear that the only agreement at issue in this litigation was the performance bond under which American States guaranteed the performance of Ram to Turner. The jury, after considering all of the evidence, determined that Ram did not fulfill its contractual performance obligations to Turner, which entitled Turner to damages. Turner did not base its complaint or claims upon any indemnity right to cover any possible obligation or payment to Oxford. Therefore, whether Oxford had any right to sue or otherwise collect from Turner as a result of Ram’s failure to perform provided no basis for precluding Turner’s recovery against American States on the bond.

The second major contention by American States in support of its appeal is that it cannot be held liable in circumstances where Ram performed its work in accordance with contract plans and specifications, even if the work product turned out to be insufficient or inadequate. In support of this position, American States points out that Turner based its theory of recovery on the contention that Ram performed defectively in backfilling the project because Ram inadequately compacted the fill. American States maintains that Ram performed the backfilling in the manner called for under the subcontracting agreement, in full conformity with all of the plans and specifications provided therein. American States asserts that the agreement did not contain any provisions requiring a particular amount or level of compaction to be achieved under the sidewalks which surrounded the project. In support of this position, American States cites several cases which hold that a contractor which performs work according to the plans provided by the owner is not responsible for the adequacy of the work.

It is evident that in raising this argument, American States is contesting the sufficiency of the evidence to support the jury’s determination that Ram had failed to fulfill its performance obligations under the subcontracting agreement. The record shows that Turner provided testimony from an expert witness regarding the compaction standard for the backfilling operations as well as testimony to establish Ram’s failure to meet that standard. Further, we note that the Turner-Ram agreement detailed several standards for the filling, backfilling and compaction. These included specific percentage standard densities, under recognized scientific or construction standards, for all such work. Turner provided testimony by an expert witness to support its claim that Ram’s performance failed to meet such standards. It is obvious that the jury credited such testimony in reaching its determination that Ram’s performance had not met the requirements of its contract with Turner. The jurors certainly had sufficient evidence on which to base such findings, and we therefore reject the second contention of error by American States.

The final argument raised by the appellant is that the claims of Turner were barred by the one year statute of limitations applicable to performance bonds. In this regard, American States claims that Turner became aware of the sidewalk subsidence problem in February, 1984, and was required to institute its action on the performance bond no later than one year after that date. On that basis, it is maintained that because the instant action was filed in June, 1985, it was untimely. We cannot agree.

No right of action arose on the performance bond until Ram failed to perform in accordance with its agreement with Turner. That subcontractor’s agreement, as noted above, provided that Ram had a duty to remedy any faulty, defective or improper work discovered within one (1) year from the date of the acceptance of the project as a whole. The record established that the project as a whole was accepted by Oxford on June 26, 1984. Ram’s default in performance did not occur until August 9, 1984, when Ram wrote to inform Turner that it would not honor its contractual obligation to attend to the problems with the settling of the sidewalks in the areas where its backfilling had occurred.

Although the possibility of problems concerning the back-filling were known to Turner more than one year prior to June 21, 1985, when this action was instituted, Ram’s actual failure of performance did not arise until August, 1984, when it declared its unwillingness to comply with its obligation to remedy its derelictions in performance. In these circumstances, we agree with the trial court’s finding that Turner’s action against American States was instituted within one year of the occurrence of Ram’s default in its performance obligations. Thus, there was no violation of the applicable statute of limitations, and we reject the final claim of error raised by American States.

Judgment is hereby affirmed.

      . This appeal is stated to be an appeal from the order denying post-trial relief, which is of course, not a final and appealable order. General Electric Credit Corp. v. Aetna Cas. & Sur. Co., 437 Pa. 463, 263 A.2d 448 (1970). Since judgment has been entered, however, we treat the appeal as being from the judgment entered in favor of Turner. See, Pa.R.A.P. 905.

      . The nature of this type of relationship was discussed by the United States Court of Appeals for the Third Circuit, in Pierce Associates, Inc. v. Neumours Foundation, 865 F.2d 530, 535-6 (3rd Cir.1989), where it stated:
      Typically when major construction is involved an owner has neither the desire nor the ability to negotiate with and supervise the multitude of trades and skills required to complete a project. Consequently an owner will engage a general contractor. The general contractor will retain, coordinate and supervise subcontractors. The owner looks to the general contractor, not the subcontractors, both for performance of the total construction project and for any damages or other relief if there is a default in performance. Performance and the payment of damages are normally assured by the bond of a surety on which the general contractor is principal and the owner is the obligee.
      The general contractor, in turn, who is responsible for the performance of the subcontractors, has a right of action against any subcontractor which defaults. Performance and payment of damages by a subcontractor are normally assured by the bond of a surety on which the subcontractor is principal and the general contractor is the obligee.
      Thus the typical owner is insulated from the subcontractors both during the course of construction and during the pursuit of remedies in the event of a default. Conversely, the subcontractors are insulated from the owner. The owner deals with and, if necessary, sues the general contractor, and the general contractor deals with and, if necessary, sues the subcontractor.

      . This one year period of limitations is provided by the Act of December 20, 1982, P.L. 1409, No. 326, art. II, Section 201, 42 Pa.C.S.A. § 5523.