author: TAMILIA, Judge.

text:
    680 A.2d 896
    COMMONWEALTH of Pennsylvania, Appellant, v. Herman BENN, a/k/a “Eddie”.
    Superior Court of Pennsylvania.
    Argued June 12, 1996.
    Filed July 22, 1996.

      Robert A. Graci, Deputy Attorney General, Harrisburg, for Commonwealth, appellant.
    Before TAMILIA, JOHNSON and MONTEMURO, JJ.

      Retired Justice assigned to the Superior Court.

   TAMILIA, Judge.

The Commonwealth appeals the November 22 and November 30, 1995 trial court Orders granting appellee a temporary furlough to attend his grandson’s Bar Mitzvah. The facts and procedural history of this case are as follows.

On May 5, 1991, appellee was sentenced to a term of imprisonment of four (4) to eight (8) years following his conviction by a jury of 52 counts of theft by failure to make required disposition of funds received, 52 counts of making fraudulent tax returns, one count each of violating the corrupt organizations statute, of corrupt organizations conspiracy and criminal conspiracy. On November 21,1995, while appellee was still incarcerated in a state prison, he applied to the trial court for a temporary furlough to attend his grandson’s Bar Mitzvah on December 9, 1995. The request was granted by Order dated November 22, 1995. Another Order, dated November 30, 1995, directed the sheriff of Dauphin County to relinquish custody of appellee to his son for the duration of the furlough, which was to be effective from 6:00 p.m., December 7, 1995 through 12:00 p.m., December 11, 1995. The trial court also issued a writ upon the superintendent of the state prison directing appellee’s release to the custody of the sheriff of Dauphin County for “the business of the court.” (Writ, 11/30/95, Evans, J.) Following the denial of its motion for reconsideration, the Commonwealth brought the instant appeal. By operation of Pa.R.A.P. 1736, the Commonwealth appeal effected an automatic supersedeas which stayed both furlough Orders. Thereafter, appellee petitioned this Court to vacate the supersedeas and by Per Curiam Order dated December 8,1995, we denied the request.

On appeal, the Commonwealth claims the trial court lacked jurisdiction to order the furlough of appellee, a state prisoner. By letter dated February 12, 1996, appellee’s son, an attorney, asserts that the Commonwealth’s appeal is moot since appellee was precluded from attending the December 9, 1995 Bar Mitzvah.

Turning first to the question of mootness, we note that an actual case or controversy must exist at all stages of appellate review. DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). Since the existence of an actual controversy is essential to appellate jurisdiction, if, pending an appeal, an event occurs which renders it impossible for the appellate court to grant any relief, the appeal generally will be dismissed. Commonwealth ex rel. Watson v. Montone, 227 Pa.Super. 541, 323 A.2d 763 (1974).

The cases presenting mootness problems involve litigants who clearly have standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten underway — changes in the facts or in the law — which allegedly deprived the litigant of the necessary stake in the outcome. The mootness doctrine requires that ‘an actual controversy much be extant at all stages of review, not merely at the time the complaint is filed.’

In re Gross, 476 Pa. 203, 209, 382 A.2d 116, 119 (1978), citing G. Gunther, Constitutional Law, 1578 (9th ed. 1975). The appellate courts of this Commonwealth will not decide moot questions. Id., see also Ridley Park Shopping Center, Inc. v. Sun Ray Drug Co., 407 Pa. 230, 180 A.2d 1 (1962); Graziano Construction Co., Inc. v. Lee, 298 Pa.Super. 311, 444 A.2d 1190 (1982).

Instantly, it may well be argued that since the Bar Mitzvah already occurred, without appellee’s attendance, the Commonwealth has received the relief it seeks and the case is moot. See e.g., Commonwealth v. Smith, 336 Pa.Super. 636, 486 A.2d 445, 447 (1984) (“[I]f, pending an appeal, an event occurs which renders it impossible for the appellate court to grant any relief, the appeal will be dismissed.”). However, our courts have repeatedly emphasized that cases will not be dismissed as moot when the issue presented is one of great public importance, Meyer v. Strouse, 422 Pa. 136, 221 A.2d 191 (1966); Graziano Construction, supra; Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976), or when the issue is capable of repetition yet escaping judicial review, Devlin v. Osser, 434 Pa. 408, 254 A.2d 303 (1969); Werner v. King, 310 Pa. 120, 164 A. 918 (1933); Graziano, supra.

We find the case sub judice has satisfied both of these exceptions to the mootness doctrine. First, we deem the issue of whether common pleas court judges may order the temporary furlough of state prisoners, which has not been squarely addressed by our appellate courts, to be one of great public importance because it involves a fundamental question as to the nature and extent of judicial power. Also, as the record indicates, appellee has sought, and may continue to seek, furlough Orders. Finally, since furloughs will almost always predate appellate review, our dismissal of these cases as moot merely because the furlough has lapsed would necessarily preclude effective appellate review. For these reasons, we deem the instant dispute capable of repetition yet evading judicial review. Devlin, Werner, supra.

Turning to the merits of the appeal, we agree with the Commonwealth that the common pleas court lacked jurisdiction to order the furlough of appellee. Custody of persons sentenced to confinement is delineated in 42 Pa.C.S. § 9762, which provides as follows:

§ 9762. Sentencing proceeding; place of confinement
All persons sentenced to total or partial confinement for:
(1) maximum terms of five or more years shall be committed to the Bureau of Correction for confinement;
(2) maximum terms of two years or more but less than five years may be committed to the Bureau of Corrections for confinement or may be committed to a county prison within the jurisdiction of the court;
(3) maximum terms of less than two years shall be committed to a county prison within the jurisdiction of the court except that as facilities become available on dates and in areas designated by the Governor in proclamations declaring the availability of State correctional facilities, such persons may be committed to the Bureau of Correction for confinement.

By operation of subsection (1), custody of appellee, who had received a four to eight year sentence, is under the control of the state Bureau of Corrections. Similarly, the legislature has vested the authority to allow early releases of state prisoners solely in the Bureau of Corrections. Title 61, Penal and Correctional Institutions, Chapter 19, Pre-release Centers and Work Release Plans, provides as follows:

§ 1051. Establishment of pre-release centers
The Bureau of Correction, Department of Justice, shall have the power and its duty shall be to establish with the approval of the Governor such prisoner pre-release centers at such locations throughout the Commonwealth as it may deem necessary to carry out effective prisoner pre-release programs therefrom.
§ 1053. Establishment of rules and regulations; penalties
The Bureau of Correction shall establish rules and regulations for granting and administering release plans and shall determine those inmates who may participate in any plan.

61 P.S. §§ 1051,1053.

As these statutes indicate, the Bureau of Corrections is empowered with discretion to grant release prior to the completion of a state prisoner’s sentence. See also Jamieson v. Robinson, 641 F.2d 138 (3d Cir., 1981) (Pennsylvania statutes governing pre-release programs vest broad discretion in the Board of Corrections with regard to location of pre-release centers, the types of programs available, and the administrative criteria for pre-release.); U.S. ex rel. Williams v. Cuyler, 447 F.Supp. 540 (E.D.Pa., 1977) (holding that this title and regulations permitting release of state prisoners prior to expiration of their minimum sentence imposed broad discretion upon prison officials.). No provision is included whereby the sentencing court somehow retains authority, to the exclusion of the Bureau of Corrections, to furlough state prisoners. In fact, 61 P.S. § 1052, Release plan for prison inmates, expressly defines the role of the sentencing court in prerelease decisions:

(c) A person who has not served his minimum sentence shall not be transferred to a pre-release center unless (i) more than twenty days have elapsed after written notice of the proposed transfer, describing the person’s individual pre-release program, has been received by the sentencing judge or in the event he is unavailable, the sentencing court and the prosecuting district attorney’s office and no written objection by the judge containing the reason therefor has been received by the bureau; or (ii) the judge withdraws his objection after consultation with representatives of the bureau; or (iii) approval of the proposed transfer is given by the Board of Pardons.
In the event of a timely objection by the judge, representatives of the bureau shall meet with the judge and attempt to resolve the disagreement. If, within twenty days of the bureau’s receipt of the objection, the judge does not withdraw his objection, or the bureau does not withdraw is proposal for transfer, or the judge and the bureau do not agree on an alternate proposal for transfer, the matter shall be listed for hearing at the next session of the Board of Pardons to be held in the hearing district in which the judge is located. During the hearing before the Board of Pardons, representatives of the judge, the bureau, the district attorney of the county where the individual was prosecuted and any victim involved shall have the opportunity to be heard.

Id.

Thus, the judge may only object once the Bureau has determined that pre-release is appropriate and the Board of Pardons has the ultimate authority to accept or reject the judge’s objection. Our thorough review has disclosed no provision of Pennsylvania law, nor does the trial court or appellee suggest any, which expands this limited advisory role with regard to prisoners in state facilities.

Moreover, even assuming that appellee was a county prisoner, the furlough Orders of November 22 and 30, 1995 would nonetheless have been in error. 61 P.S. § 2141 provides as follows:

§ 2141. Court order; purposes
Whenever any person has been sentenced to undergo imprisonment in a county jail or workhouse, hereafter referred to as a jail, for a term of less than five years the court, at the time of sentence or at any time thereafter upon application made therefor, may by order direct the sheriff, prison keeper, warden or other administrative head of a jail to permit the prisoner to leave the jail during necessary and reasonable hours for the purpose of working at his employment, conducting his own business or other self-employed occupation, including housekeeping and attending to the needs of family, seeking employment, attendance at an educational institution, seeming medical treatment or such other lawful purposes as the court shall consider necessary and appropriate. The order of court may be rescinded or modified at any time with or without notice to the prisoner.

Since appellee’s maximum sentence exceeded five years, he would have been ineligible for release under this section. Thus, it appears that the furlough Orders were improperly entered.

Finally, although we have found no case law directly on point, we note several cases discussing the power of sentencing courts to alter or modify sentences. In Commonwealth v. Quinlan, 433 Pa.Super. 111, 639 A.2d 1235 (1994), the court at sentencing orally imposed a five-year probationary period in addition to appellant’s sentence of eleven and one-half to twenty-three months’ incarceration. However, the written sentence Order omitted the period of probation. Following three months of incarceration, in August, 1988, appellant was paroled for the remainder of his maximum sentence, which expired without incident in April, 1990. However, in September, 1990, appellant was again arrested and the new offenses were deemed probation violations and appellant was detained. In November of 1990, the Common Pleas Court entered a written Order dated retroactively to appellant’s first arrest which purported to reinstate the original probationary period of five years. Thereafter, the “probation” was revoked and appellant was sentenced to three years’ incarceration. Throughout post-trial proceedings and finally in a PCRA petition, appellant claimed the Order reinstating probation was a nullity. In reversing the PCRA court’s denial of appellant’s petition, a panel of our Court held:

Trial courts have the power to alter or modify a criminal sentence within thirty days after entry, if no appeal is taken. Generally, once the thirty-day period is over, the trial court loses the power to alter its orders.
[Instantly], the court was without authority to enter [a retroactive] order of probation.... The time for modification of the sentence had long passed.... Therefore, a successor court which reaches back two and one-half years and allows the transcript of the sentencing proceeding to trump two written, signed, recorded, and unappealed orders acts without authority of either rule or case law. Accordingly, we conclude that the order of probation and all consequences flowing therefrom are a nullity.

Id. at 121-22, 639 A.2d at 1240-1241 (citations omitted); see also Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985) (sentencing court lacked jurisdiction to make a concurrent sentence into a consecutive sentence five months after the original concurrent sentence had been entered); Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984) (sentence which is amended to include a parole condition of drug therapy and imposed more than thirty days after sentencing was unlawful and a nullity); Bailey v. Commonwealth of Pennsylvania Board of Probation and Parole, 140 Pa.Cmwlth. 108, 591 A.2d 778 (1991) (Common Pleas Court Order which retroactively modified parole date, eleven to twelve months after original sentence, held a nullity). Thus, even if we construe the trial court’s furlough Orders as a retroactive attempt to somehow modify appellee’s original sentence, the Orders were clearly null and void, having been entered more than four years after appellee was sentenced.

Based on the foregoing, we are constrained to conclude that the Court of Common Pleas of Dauphin County overstepped its jurisdiction and usurped the legislatively-mandated authority of the Bureau of Corrections in ordering appellee’s furlough from a state penitentiary. Consequently, the Order directed to the sheriff and the Writ directed to the prison superintendent, both of which sought to facilitate the pending furlough, were also in error.

The Orders of November 22 and 30, 1995 are hereby vacated.

Orders vacated.

Jurisdiction relinquished.

      . By Order dated December 18, 1995, we granted the Commonwealth’s application to consolidate its separate appeals from the furlough Orders.

      . 18Pa.C.S.§ 3927.

      . 72 P.S. § 7268(a).

      . 18Pa.C.S. § 911(b)(3).

      . Id., § 911(b)(4).

      . Id.., § 903. Appellee’s judgment of sentence was affirmed on direct appeal to this Court. Commonwealth v. Benn, 421 Pa.Super. 629, 612 A.2d 530 (1992), appeal denied, 533 Pa. 617, 619 A.2d 699 (1993).

      . For reasons not apparent from the record, the Writ states that the furlough was to be effective from 12:00 p.m. on December 7, 1995 through 6:00 p.m. on December 11, 1995. This conflict with the times set forth on the Orders of November 22 and 30 may be the result of typographical error.

      . Rule 1736. Exemption from Security
      (b) Supersedeas automatic. Unless otherwise ordered pursuant to this chapter the taking of an appeal by any party specified in Subdivision (a) of this rule [the Commonwealth pursuant to 1736(a)(1) ] shall operate as a supersedeas in favor of such party.

      . The docket indicates an Order, dated October 21, 1993, granting appellee a furlough from 9:00 a.m. on November 5, 1993 until 6:00 p.m. on November 7, 1993. The record does not disclose the purpose for which this furlough was granted.

      . An appeal was filed but later withdrawn.

      . 42 Pa.C.S. § 5505, Modification of orders, provides:
      Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    680 A.2d 901
    John BAMBER, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, American Motorists Insurance Company, American Manufacturers Mutual Insurance Company and American Protection Insurance Company T/A Kemper National Insurance Companies, Appellees.
    Superior Court of Pennsylvania.
    Argued June 18, 1996.
    Filed July 30, 1996.

      Joseph Monaco, Philadelphia, for appellant.
    James C. Haggerty, Philadelphia, for appellees.
    Before EAKIN, SCHILLER and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

In 1991, appellant John Bamber sustained a number of injuries following an automobile accident that allegedly occurred during the course of his employment. Bamber recovered the limits of the tortfeasor’s liability insurance policy, and also recovered $15,000 of underinsured motorist (UIM) benefits from his own personal automobile insurance policy. On October 23, 1991, Bamber notified appellee Kemper National Insurance Company (Kemper) that he was also seeking UIM benefits under his employer’s business auto insurance policy with Kemper. When Kemper refused to pay, Bamber filed the instant action.

Kemper’s defense in this action was that the Chamber of Commerce’s business auto insurance policy simply did not provide underinsured motorist benefits. Relying on this argument, Kemper filed a motion for summary judgment. On December 26, 1995, the Honorable Russell M. Nigro granted Kemper’s motion for summary judgment. Bamber filed the instant timely appeal from Judge Nigro’s order.

Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa. R.C.P.Rule 1035. Upon review, this Court will overturn a trial court’s entry of summary judgment “only if there has been an error of law or a clear abuse of discretion.” Hoffman v. Brandywine Hospital, 443 Pa.Super. 245, 250, 661 A.2d 397, 399 (1995).

Bamber argues that he is entitled to UIM benefits under the business auto policy issued to his employer, the Chamber of Commerce (“Chamber policy”). While Bamber concedes that the Chamber policy does not actually provide UIM coverage, he argues that such coverage should be provided by operation of Pennsylvania law. In attempting to establish the merits of this argument, Bamber first asserts that his vehicle was a “covered auto” under the Chamber policy when the vehicle was used in the course of Bamber’s employment. Since his vehicle was covered by the Chamber policy and registered in Pennsylvania, Bamber argues, the Pennsylvania Motor Vehicle Financial Responsibility Law (PMVFRL) requires UIM coverage unless such coverage is specifically waived by the named insured. Given that no waiver was executed, Bamber concludes that the Chamber policy should be reformed to include UIM coverage in an amount equal to the level of liability coverage. After careful review, we agree with Bamber that his vehicle is covered under the Chamber policy, but do not agree that the PMVFRL requires Kemper to provide UIM coverage.

Initially, we note that the interpretation of a contract of insurance is a matter of law to be decided by the courts. E.g., Paylor v. Hartford Ins. Co., 536 Pa. 583, 585-87, 640 A.2d 1234, 1235 (1994). Our primary purpose in interpreting such contracts is to “ascertain the intent of the parties as manifested by the language of the written agreement.” Id. If the policy language is clear, such language is given effect by the court. Id. If the language is ambiguous, however, we will construe the agreement against the drafter. Insurance Co. of Pennsylvania v. Hampton, 441 Pa.Super. 382, 385-87, 657 A.2d 976, 978, appeal denied, 542 Pa. 647, 666 A.2d 1056 (1995).

In the Chamber policy, the declarations state that liability coverage is provided for autos falling within category “1.” R.R. at 15. This category is described as including “Any ‘Auto.’ ” Id. at 22. While the term “Any Auto” is not defined in the policy, the meaning of the term, as it is used in the policy, logically refers to all autos falling within the subsequent limited categories “2” through “9.” Category “9” reads as follows:

9 = NONOWNED “AUTOS” ONLY. Only those “autos” you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes “autos” owned by your employees or partners or members of their households but only while used in your business or your personal affairs.

Id. Bamber’s personal vehicle clearly falls into this category when it is used in the course of his employment with the Chamber of Commerce. Thus, Bamber’s vehicle is a “covered auto” for purposes of liability coverage when the vehicle is used in the course of his employment.

Notwithstanding the category “9” description, Kemper argues that Bamber is specifically excluded from coverage by subsequent language. In section 11(A)(1), the policy defines insureds as follows:

1. WHO IS AN INSURED
The following are “insureds”:
a. You for any covered “auto.”
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
2) Your employee if the covered “auto” is owned by that employee or a member of his or her household.

R.R. at 23. Despite Kemper’s argument, we must agree with Bamber that he cannot be excluded by (b)(2) when he is not in the relevant class of people included in section (b). Section (b) states that it will insure permissive users of covered autos that are owned, hired, or borrowed by the Chamber of Commerce. As Bamber’s personal vehicle was not owned, hired, or borrowed by the Chamber of Commerce, this entire section, including the exclusions, does not apply.

Therefore, after review of the Chamber policy, we find that Bamber’s vehicle is covered when it is used in the course of his employment. Nevertheless, our inquiry does not end here. While the Chamber policy does cover Bamber’s vehicle for liability purposes, it does not explicitly provide UIM coverage. Bamber argues that UIM coverage is required, pursuant to section 1731(a) of the PMVFRL, because Bamber’s vehicle is registered in Pennsylvania. We must disagree.

Section 1731(a) of the PMVFRL addresses the requirement of uninsured (UM) and UIM coverage as follows:

(a) Mandatory offering. — No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are offered therein or supplemental thereto in amounts as provided in section 1734 (relating to request for lower limits of coverage). Purchase of uninsured motorist and underinsured motorist coverages is optional.

75 Pa.C.S.A. § 1731(a). The language of this section requires UM and UIM coverage where a motor vehicle liability insurance policy is delivered or issued for delivery in this Commonwealth, for coverage of a vehicle registered or principally garaged in this Commonwealth. In the instant case, we must determine whether a motor vehicle liability insurance policy issued and delivered in Washington, D.C. comes within the purview of section 1731(a) because it provides liability coverage, under certain limited conditions, for a vehicle registered in Pennsylvania. We now hold that such a policy is not within the reach of section 1731(a).

When construing a statute, our objective is to ascertain and effectuate the legislative intent. 1 Pa.C.S.A. § 1921(a). See also Berger v. Rinaldi, 438 Pa.Super. 78, 86-88, 651 A.2d 553, 557 (1994), appeal denied, 544 Pa. 641, 664 A.2d 971 (1995). In so doing, we must begin with a presumption that our legislature did not intend any statutory language to exist as mere surplusage. Id. Accordingly, “whenever possible, courts must construe a statute so as to give effect to every word contained therein.” Id.

Instantly, section 1731(a) states that UM and UIM coverage must at least be offered for any policy “delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth.” 75 Pa.C.S.A. § 1731(a). Giving meaning to all of this language, as we are required to do by our rules of construction, we cannot focus, as appellant does, solely on the fact that a “covered auto” is registered in Pennsylvania. While it certainly is relevant that a covered auto is registered in Pennsylvania, we must also determine whether the Chamber policy was delivered or issued for delivery in Pennsylvania.

In Insurance Co. of Pennsylvania v. Hampton, this Court interpreted the “delivered or issued for delivery” language of section 1731(a). 441 Pa.Super. at 387, 657 A.2d at 979. We held that a policy purchased in Delaware for a vehicle registered in Delaware was not delivered or issued for delivery in the Commonwealth. Thus, section 1731(a) was not applicable even though the covered vehicle was principally garaged in Pennsylvania. Id.

Similarly, the Chamber policy was purchased in Washington, D.C. for primary coverage of vehicles registered in Washington, D.C., Illinois, and California. While Bamber’s personal vehicle was covered under the Chamber policy when it was used in the course of employment, such coverage was incidental to the primary purpose of the policy. This incidental coverage does not alter the fact that the policy was issued in Washington, D.C., for coverage of vehicles registered in Washington, D.C., Illinois, and California. Thus, pursuant to the analysis in Hampton, the Chamber policy was not “delivered or issued for delivery” in Pennsylvania, and section 1731(a) is inapplicable.

Since section 1731(a) of the PMVFRL did not require Kemper to offer UIM benefits in the Chamber policy, we have no basis upon which to reform the policy. The Chamber policy simply does not provide UIM benefits, and Bamber’s claim for such benefits must therefore fail. Based on the foregoing, the trial court did not err in granting summary judgment in favor of appellees.

Affirmed.

      . Bamber was employed by the Chamber of Commerce of the United States of America.


author: MONTEMURO, Judge*:

text:
    680 A.2d 904
    Michael D. SIMMERS, Appellee, v. Jeanne M. PACKER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 12, 1996.
    Filed July 31, 1996.

      Lori K. Serratelli, Harrisburg, for appellant.
    Paul J. Esposito, Harrisburg, for appellee.

      Before TAMILIA, JOHNSON, and MONTEMURO, JJ.

       Retired Justice assigned to Superior Court.

   MONTEMURO, Judge*:

This is an appeal from an order directing that appellant pay $29 per week plus $5 per week arrearages toward the support of the parties’ daughter who is a college student. Appellant is further ordered to pay 40% of the daughter’s uninsured medical, dental, eye and prescription bills.

The trial court’s order was entered May 11, 1995 pursuant to Act 62 of 1993, 23 P.S. § 4327(a) On October 10, 1995, during the pendency of this appeal, Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995), was filed which finds unconstitutional the statute pursuant to which the order in question was entered.

Appellant would have us determine whether the order was properly entered according to the standards set by the invalidated statute, arguing that the trial court abused its discretion in applying the statute prior to its invalidation. She then claims that the order should be vacated because of the trial court’s failure to consider the circumstances of the case, and finally that any funds provided by appellant under the order should be returned. In essence, appellant would have us decide whether Curtis is to be applied retroactively or prospectively. Because the trial court has had no opportunity to address this question, it is not clear that the issue is directly before us. We will, nevertheless, examine it in terms of whether repayment is justified.

As to the question of whether the court’s order was appropriate under the standards applicable prior to the issuance of Curtis, we find that the trial court appropriately resolved this claim which stems from the existence of an $8,000 fund provided by the child’s grandmother specifically to cover college expenses. The court apportioned the money to cover four years, while appellant argues it should have been allotted to the first year’s expenses in order to relieve her of any obligation.

Act 62 required the court to look at a number of factors in determining the correct amount to be assessed, most pertinently in this instance, the resources of both parents, the financial resources of the student, the receipt of loans or other financial assistance, and the ability of the student to contribute. The hearing officer, whose recommendations the trial court adopted, calculated the expenses of the child’s freshman year to be $8,615.50, allotted $2,500 of the college fund toward this amount, ascribed an $850 earning capacity to the child, and divided the balance between the parties, directing appellant to pay $29 per week and $5 per week arrearages. We find no error in the court’s determination that this amount constituted neither a financial burden nor an economic hardship , and was therefore consistent with the objectives of Act 62.

As to appellant’s assertion that the order should be vacated, it is moot since the order has been rendered void by the publication of Curtis, and was, in fact, terminated as of October 10,1995.

The demand for repayment triggers our inquiry as to prospective or retrospective application of the Curtis rule. The standard for such a determination was set by our Supreme Court in Blackwell v. Commonwealth of Pennsylvania State Ethics Commission, 527 Pa. 172, 589 A.2d 1094 (1991), which stated that although the general rule requires retroactivity, “a sweeping rule of retroactive application is not justified.” Id. at 182, 589 A.2d at 1099. Rather, “[r]etrospective application is a matter of judicial discretion which must be exercised on a case by case basis.” Id. Exercise of judicial discretion is to be guided by the three-factor analysis enunciated by the United States Supreme Court in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), and adopted by the Blackwell Court. The inquiry necessitates consideration of: 1) the purpose to be served by the new rule; 2) the extent of the reliance on the old rule; and 3) the putative effect of retroactive application of the new rule on the administration of justice. Id.

In the instant matter, the purpose to be served by the new rule is declared by the Supreme Court to be the establishment of equality between children of divorce and children of intact families with respect to support during the acquisition of a college education. Retroactivity, if understood to involve the repayment of funds advanced under the auspices of Act 62, would run directly counter to this purpose, as it would encumber children of broken families with financial obligations not borne by children of intact families, who are not required by law to repay college expense money to their parents. Thus it is at least arguable that retroactive application of the Curtis decision would itself be violative of equal protection.

As to the second prong, i.e., the extent of reliance on the old rule, as appellee points out, our Supreme Court in Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), refused to recognize a common law duty of support for college age children, but suggested that such a duty might be established legislatively. Prior to Blue, orders such as the one in question here had been upheld by this court for thirty years, and Act 62 was enacted only seven months after Blue was handed down. Accordingly, reliance on prior law would have been extensive. Moreover, any orders extant under Act 62 would be automatically voided by the Curtis decision with no inconvenience to anybody.

Finally, the question arises as to what effects retroactive application of the new rule would occasion to the administration of justice. It would be difficult to imagine that return of funds previously provided for college and already expended for that purpose would be retrievable without legal action by parents against the children who received the support. This is especially true since the original means of obtaining the support also required court intervention. The spectacle of such suits is to say the least unattractive, viz., the instant action. There is no reason provided by appellant which would persuade us that encouragement of such suits would be beneficial to any of the parties, or to the calendars of the courts which would receive them. There is no positive effect on the administration of justice which retroactive application of the Curtis rule would bring, and no compelling reason to do other than limit it to prospective account.

Accordingly, the order of the court of Common Pleas vacating the award of child support is affirmed.

      . 23 P.S. § 4327(a) reads in pertinent part:
      (a) General rule. — ... a court may order either or both parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation to provide equitably for educational costs of their child whether an application for this support is made before or after the child has reached 18 years of age.

      . 23 Pa.C.S.A. § 4327(e)

      . The record reveals that at the time of the final support order issued during the child’s minority, appellant’s yearly earnings were $42,000. There was no argument raised that this circumstance had altered when appellant sought a cessation of her child support obligation because of the child’s graduation from high school.

      . The case law in this area begins with Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963).

      . Both sides agree that the amount sought is $1500.00. It occurs to us to wonder how much appellant has already spent and how much more she is willing to spend on this litigation.


author: HUDOCK, Judge:

text:
    680 A.2d 907
    Susan MIKULA, Appellant, v. FORD MOTOR COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued April 18, 1996.
    Filed July 30, 1996.

      John P. Vetica, Jr., Pittsburgh, for appellant.
    Anthony J. Williott, Pittsburgh, for appellee.
    Before HUDOCK, FORD ELLIOTT and BROSKY, JJ.
   HUDOCK, Judge:

The issue presented in this case of first impression is whether a new motor vehicle which was purchased out-of-state by a Pennsylvania resident who registers the car and pays insurance under Pennsylvania Law is subject to the provisions of Pennsylvania’s Automobile Lemon Law (Lemon Law), 73 P.S. section 1951, et seq. Because we find that the vehicle at issue is not covered under the Lemon Law, we affirm the grant of summary judgment in favor of Ford Motor Company (Ford).

The pertinent facts and procedural history may be summarized as follows: On or about April 2, 1994, Susan Mikula (Mikula), a Pennsylvania resident, purchased a 1994 Ford Escort from a Ford dealership located in Bethesda, Maryland. Although the car was purchased in Maryland, Mikula registered and insured the car in Pennsylvania. Mikula alleges that, within approximately six months after its purchase, she began to experience difficulties with the operation of the car. Thereafter, the car was serviced numerous times at a Pittsburgh Ford dealer. Because the problems allegedly were not corrected, and she continued to experience them, Mikula filed a lawsuit pursuant to the Lemon Law. After filing an answer, Ford moved for summary judgment, claiming that the Lemon Law does not apply to vehicles purchased outside Pennsylvania. The trial court agreed and granted Ford’s motion. On appeal to this Court, Mikula contends that the court below erred as a matter of law in granting summary judgment because the pertinent language of the Lemon Law is ambiguous and susceptible to more than one meaning. We disagree.

When determining whether a trial court properly granted summary judgment, this Court’s scope of review is plenary. Schriver v. Mazziotti, 432 Pa.Super. 276, 278-80, 638 A.2d 224, 225 (1994), alloc. den., 539 Pa. 638, 650 A.2d 52. Summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact. Pa.R.C.P. 1035(b), 42 Pa.C.S.A. We must examine the entire record in the light most favorable to the non-moving party and resolve all doubts against the moving party when determining if there is a genuine issue of material fact. Schriver, 638 A.2d at 225. We will only reverse the trial court’s decision when it commits an error of law or abuses its discretion. Accu-Weather, Inc. v. Prospect Communications, Inc. and CRB, 435 Pa.Super. 93, 98-99, 644 A.2d 1251, 1254 (1994). An abuse of discretion occurs “when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action taken is a result of partiality, prejudice, bias or ill will.” Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 447, 625 A.2d 1181, 1185 (1993) (quoting P.L.E. New Trial § 2). Put differently, summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Accu-Weather, Inc., 644 A.2d at 1254.

The Lemon Law creates a civil cause of action for “any purchaser of a new motor vehicle who suffers any loss due to a nonconformity of such vehicle as a result of the manufacturer’s failure to comply” with its provisions. 73 P.S. § 1958. The Lemon Law defines purchaser as follows:

“Purchaser.” A person, or his successor or assigns, who has obtained ownership of a new motor vehicle by transfer or purchase or who has entered into an agreement or contract for the purchase of a new motor vehicle which is used or bought for use primarily for personal, family or household purposes.

73 P.S. § 1952. The Lemon Law defines “new motor vehicle” as follows:

“New motor vehicle.” Any new and unused self-propelled, motorized conveyance driven upon public roads, streets or highways which is designed to transport not more than 15 persons, which was purchased, and is registered in the Commonwealth and is used or bought for use primarily for personal, family or household purposes, including a vehicle used by a manufacturer or dealer as a demonstrator or dealer car prior to its sale. The term does not include motorcycles, motor homes or off-road vehicles.

Id. (Emphasis added).

Because the Lemon Law protects only purchasers of new motor vehicles, any person seeking recourse under it must establish that the vehicle purchased falls within the definition of “new motor vehicle.” As in the proceedings below, Ford contends that Mikula does not fall within the above definition because she purchased the car outside Pennsylvania. According to Ford, to meet the Lemon Law’s definition, three requirements must be met: 1) the vehicle was purchased in Pennsylvania; 2) the vehicle is registered in the Commonwealth; and 3) the vehicle is used or bought for use primarily for personal, family or household purposes. Mikula, on the other hand, contends that the three requirements should be construed as follows: 1) the vehicle is purchased; 2) the vehicle is registered in the Commonwealth; and 3) the vehicle is used or bought for use primarily for personal, family or household purposes. Even though section 1952 defines a new motor vehicle as one “purchased and registered in Pennsylvania,” Mikula contends that the Lemon Law should be construed broadly by focusing on its remedial and consumer protection purposes.

Because the Lemon Law was enacted to protect Pennsylvania consumers who purchase new cars which fail to operate properly after numerous attempts at repair, and because the consumer can sue only the manufacturer and not the local dealer, Mikula contends that there is no reason the Legislature would penalize a Pennsylvania consumer who crossed state lines to obtain a more competitively-priced vehicle. Thus, according to Mikula, it should make no difference where the Pennsylvania resident purchased the vehicle. Ford responds to this argument by noting that the language at issue is unambiguous and the several Pennsylvania appellate decisions which have considered the Lemon Law or construed terms therein have done so in a narrow fashion. See e.g., Reeves v. Morelli-Hoskins Ford, Inc., 415 Pa.Super. 431, 434-36, 609 A.2d 828, 830 (1992) (person whose car is repossessed after filing a Lemon Law action loses status of “purchaser”); Ford Motor Credit Co. v. Dunsmore, 374 Pa.Super. 303, 305-07, 542 A.2d 1033, 1035 (1988) (“Lemon Law does not permit the purchaser of a defective automobile to discontinue making payments under a financing contract while pursuing available Lemon Law remedies”); Industrial Valley Bank & Trust Co. v. Howard, 368 Pa.Super. 263, 271-73, 533 A.2d 1055, 1059 (1987), alloc. den., 520 Pa. 576, 549 A.2d 136 (1988) (neither lessee or lessor in a lease situation qualifies as a “purchaser” within the clear meaning of section. 1952 of the Lemon Law).

Like the court below, we understand that the language of the Lemon Law may leave Mikula without a remedy because Maryland law only provides protection for cars registered in that state. See Md.Com.Law II Code Ann. sections 14-1501(c) and 14-1502. However, we cannot do violence to the clear language of the Lemon Law in pursuit of its purpose. See Marshall v. Port Authority of Allegheny County, 524 Pa. 1, 5-7, 568 A.2d 931, 934 (1990) (when language of statute is clear and explicit, considei’ation of arguments based upon an alleged contrary intent or legislative history is improper); Eck v. School District of City of Williamsport, 197 Pa.Super. 591, 594-96, 180 A.2d 79, 81 (1962) (rules of statutory construction are to be resorted to only where there is a patent or latent ambiguity; rules of construction are not to be used to create doubt). After a review of the Lemon Law’s provisions, as well as principles of statutory construction, we find persuasive and therefore adopt the following discussion by the Honorable R. Stanton Wettick, Jr., in his 1925(a) opinion, in disposing of the present appeal:

I ... agree with Ford that the language of the Lemon Law ... clearly and unambiguously supports its position.
First, the phrase “in the Commonwealth” applies to the purchase and to the registration [of the vehicle] because if the Legislature had intended for the phrase “in the Commonwealth” to apply only to registration, the relevant portion of the definition of “new motor vehicle” would have read as follows:
... which was purchased, is registered in the Commonwealth and is used or bought for use primarily for personal, family or household purposes.
The Legislature would not have used the word “and” between the first requirement (“which was purchased”) and the second requirement (“is registered in the Commonwealth”), and also between the second requirement (“is registered in the Commonwealth”) and the third requirement (“is used or bought for use primarily for personal, family or household purposes”).
Second, in construing a statute, a court shall presume that the Legislature would not include language that is surplusage. In construing a statute, it is presumed that every word is intended for some purpose and must be given effect.
Under Ford’s construction of “new motor vehicle,” the words “which was purchased” have a purpose; they are part of a clause imposing a requirement that the purchase and registration occur in the Commonwealth. Under [Mikula’s] construction of “new motor vehicle,” the words “which was purchased” are surplusage; other provisions in the Lemon Law provide remedies only to a “purchaser” which is a defined term that includes persons who obtain ownership of a new motor vehicle by purchase.
Third, a civil cause of action under the Lemon Law does not arise until the manufacturer has failed to repair or correct a nonconformity pursuant to repair obligations set forth at 73 P.S. § 1954(a) which reads as follows:
§ 1954. Repair obligations
(a) Repairs required. — The manufacturer of a new motor vehicle sold and registered in the Commonwealth shall repair or correct, at no cost to the purchaser, a nonconformity which substantially impairs the use, value or safety of said motor vehicle ... (Emphasis added).
The Legislature would not have included the term “sold” unless its purpose was to restrict repair obligations to vehicles that were both sold and registered in the Commonwealth. An argument that the term “sold” was included to make it clear that the repair obligation extended only to vehicles that were sold ignores the following defined terms that are used in this subsection: “manufacturer;” “new motor vehicle;” and “purchaser.” This is a carefully written piece of legislation that would not have introduced an undefined term within the provision that triggers the cause of action set forth in 73 P.S. § 1958.

Trial Court Opinion, 10/22/95, at pp. 2, 4-7 (citations omitted).

Both parties present persuasive policy arguments as to why the Legislature would or would not intend to exclude cars purchased by Pennsylvania residents in another state. Any consideration of the purposes behind the Lemon Law, however, cannot change the clear and unambiguous wording of its provisions. Whether the wording of the definition of “new motor vehicle” under the Lemon Law was specifically chosen to monitor and/or promote only the sales of new vehicles in Pennsylvania or whether the factual scenario at issue in the present case was not contemplated by the Legislature when enacting the statute is speculation; any change in language must come from that body and not the courts.

Order affirmed.

      . Prior to the motion for summary judgment the matter was submitted to arbitration which resulted in an award to Mikula. Ford appealed to the trial court from the arbitrators' award and then filed for summary judgment.


text:
    680 A.2d 1166
    COMMONWEALTH of Pennsylvania v. Walter E. TRAYER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1996.
    Filed July 9, 1996.

      Samuel W. Milkes, Carlisle, for appellant.
    Jaime M. Keating, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
    Before TAMILIA, JOHNSON and MONTEMURO, JJ.

       Retired Justice assigned to the Superior Court.

   TAMILIA, Judge.

Walter E. Trayer appeals from the July 20, 1995 Order denying his motion to dismiss the criminal charges pending against him as a consequence of having been arrested for allegedly possessing with the intent to deliver 58.8 grams of cocaine. The facts pertinent to this appeal follow.

On December 11, 1994, a confidential informant told Officer Michael McLaughlin of the Upper Allen Police Department the appellant had phoned her to say he had purchased cocaine in New York, was en route to central Pennsylvania and would meet her that evening at a local hotel for the purpose of selling her cocaine. In an effort to apprehend appellant, the confidential informant and McLaughlin rented adjoining rooms at the hotel. McLaughlin watched as appellant drove his Jaguar into the hotel parking lot, and then listened as he and the confidential informant spoke in the adjoining room concerning appellant’s trip to New York City to purchase the cocaine he now offered her for sale. Appellant asked the confidential informant if she would like to try some of the cocaine but the confidential informant declined. A few minutes later, McLaughlin and some fellow officers knocked on appellant’s hotel door, were admitted by the confidential informant and arrested the appellant. Pursuant to a search warrant, cocaine was seized from appellant’s person, and a cellular telephone was taken from his Jaguar.

On February 23, 1995, after appellant was arraigned but prior to trial, the Commonwealth instituted forfeiture proceedings against him pursuant to 42 Pa.C.S. § 6801(a)(2), (4) and (6)(i)(A) to secure his 1983 Jaguar SJ6 automobile, the cellular phone found therein, and $79 seized from appellant at the time of his arrest. The Commonwealth averred the appellant had used or intended to use the items seized to facilitate the drug transaction in question. Following a hearing, by Order dated June 7, 1995, the court directed forfeiture of the car and telephone. No appeal from this Order was taken.

On July 3, 1995, defendant filed a motion to dismiss the drug trafficking charges pending as a result of his December 11, 1994 arrest, arguing that to proceed would violate his rights against twice being placed in jeopardy for a singular criminal offense, and being subjected to cruel and unusual punishment. On July 20, 1995, his motion to dismiss was denied and this appeal followed.

Appellant argues if he is prosecuted on the drug trafficking charges, double jeopardy will result as he has already been “punished” by the confiscation of his Jaguar. Appellant reasons the forfeiture of his vehicle, as a consequence of an in rem civil forfeiture proceeding, was a punitive rather than a remedial measure, and constituted “punishment” for double jeopardy and excessive fines purposes. .

When evaluating a double jeopardy challenge in the context of multiple punishments, the court must find the civil forfeiture indeed constituted a punishment. Appellant relies on the United States Supreme Court case of United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), in support of his argument an in rem civil forfeiture constitutes a punishment for violation of the Controlled Substance, Drug, Device and Cosmetic Act. However, according to this Court’s reading of Halper as it relates to the matter before us, the Halper Court limited its holding to the circumstances before it and found a civil sanction will be deemed punishment for double jeopardy purposes where the fine is not characterized as remedial and the dollar amount or value is disproportionate to the government’s loss. We do not take issue with this reasoning but look to applicable Pennsylvania caselaw, Commonwealth v. Wingait Farms, 659 A.2d 584 (Pa.Cmwlth. 1995), alloc. denied, 543 Pa. 697, 670 A.2d 144 (1995), alloc. granted, 542 Pa. 676, 668 A.2d 1137 (1995), which discusses punitive versus remedial measures in cases alleging double jeopardy. The Wingait court found the essence of Controlled Substances Forfeitures to be “remedial rather than punitive”, reasoning the statute “serves the purpose of depriving the defendant of the means to commit additional offenses and also helps the state defray the costs of investigation and prosecution”. Id., 659 A.2d at 591; see also Commonwealth v. Higginbottom, 451 Pa.Super. 81, 678 A.2d 408 (1996); (Forfeiture of proceeds directly traceable to the sale of illegal drugs is a remedial measure and does not constitute punishment for purposes of double jeopardy.). Moreover, in addition to the statutory support for the appellee’s position herein, as stated by the trial court in its concise, well-reasoned Opinion:

[Defendant's automobile was forfeited because it was used to facilitate the transportation, possession and concealment of the cocaine that forms the basis of this criminal case, 42 Pa.C.S. Section 6801(a)(4), and the cellular phone was forfeited because it was used to facilitate the exchange of the controlled substance, 42 Pa.C.S. Section 6801(a)(2). The property was forfeitable because it was significantly used in the commission of this alleged drug offense. Prosecuting defendant now on the criminal charge will not subject him to multiple punishment that will violate the Double Jeopardy Clause.

We agree with the Wingait court’s reasoning as well as that of the trial court and therefore find appellant’s double jeopardy argument as it relates to multiple punishments devoid of merit.

Appellant also contends the seizure of his Jaguar and cellular phone was punishment because the value of the vehicle was disproportionate to the government’s loss. In addition to Halper, appellant relies on Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), and argues the seizure of such an expensive vehicle, in light of the severity of his crime, was excessive and, therefore, violative of his Eighth Amendment right to be free of cruel and unusual punishment.

The Austin decision, which found the Eighth Amendment excessive fines clause applicable to the drug-related, civil, in rem forfeiture at issue because it served to punish, was addressed in In re King Properties, 535 Pa. 321, 635 A.2d 128 (1993). King’s house was forfeited after it was found the realty was inextricably linked to the drug trafficking with which he was charged. Our Supreme Court adopted the view of Justice Scalia in Austin and held as follows:

We agree with Mr. Justice Scalia that in determining whether a forfeiture is an excessive fine, and therefore disproportionate, the inquiry does not concern the value of the thing forfeited, but the relationship of the offense to the property which is forfeited. If the forfeited property was significantly used in the commission of the offense, the item may be forfeited regardless of its value.

King Properties, supra at 330, 635 A.2d at 133. Accordingly, in the matter sub judice, the monetary value of the Jaguar forfeited is immaterial in that it was used in the furtherance of the crime with which the appellant is charged. The dispositive factor is the vehicle’s connection to the crime, not its value. We agree with the trial court the Excessive Fines Clause of the Eighth Amendment has not been offended.

Having found appellant’s arguments devoid of merit, we affirm the Order denying appellant’s motion to dismiss the pending drug trafficking charges.

Order affirmed.

      . This interlocutory appeal is being considered on the basis it is alleged appellant would endure double jeopardy should the Commonwealth be allowed to proceed.

      . Commonwealth v. One 1985 Jaguar SJ6, et al., No. 95-0038 Miscellaneous Term (Cumberland County).

      . On August 7, 1995, pursuant to the parties’ stipulation, an Order was issued making the forfeiture proceedings part of the criminal case docketed at 95-0049, Cumberland County;

      . 35 Pa.C.S. § 780-101 et seq.

      . The United States Supreme Court in United States v. Guy Jerome Ursery, - U.S. -, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), recently adopted the position we have indicated herein. The Court held that in the history of both common law and statutory forfeiture, as unwaveringly decided by the Court, a civil proceeding designated in rem, as opposed to in personam, is remedial and neither punishment nor criminal so as to implicate double jeopardy.

      . 42 Pa.C.S. § 6801 et seq.

      . Appellant’s reliance in his reply brief on Commonwealth v. Hess, 532 Pa. 607, 617 A.2d 307 (1992) is misplaced, the sentence quoted, "[qluintessentially, it is a punitive measure[,]” constituting dicta.

      . Appellant also cites Montana Dept. of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994).

      . The court was considering federal forfeiture statutes, 21 U.S.C. § 881(a)(4) and (7).


author: HOFFMAN, Judge.

text:
    680 A.2d 1168
    COMMONWEALTH of Pennsylvania v. K.M., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 11, 1996.
    Filed July 12, 1996.

      William J. McCabe, Greensburg, for appellant.
    Karen A. Gelety, Assistant District Attorney, Greensburg, for Commonwealth, appellee.
    Before CIRILLO, President Judge Emeritus, and DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from a November 6, 1995 order denying appellant K.M.’s petition after hearings under the Post Conviction Relief Act (PCRA). Appellant now raises the following issues for our review:

I. WHETHER APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE BEFORE THE SUPERIOR COURT, IN THE CONTEXT OF AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, THE FAILURE OF TRIAL COUNSEL TO RAISE IN POST-TRIAL MOTIONS, THE SUFFICIENCY OF THE EVIDENCE TO SUSTAIN THE APPELLANT’S CONVICTION FOR RAPE, STATUTORY RAPE AND INCEST.
II. WHETHER APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE, IN THE CONTEXT OF AN INEFFECTIVE ASSISTANCE CLAIM, THE FAILURE OF TRIAL COUNSEL TO INTRODUCE IN THE DEFENSE CASE EXPERT MEDICAL TESTIMONY TO REBUT THE TESTIMONY OF LARRY KACHIK, M.D., AND DENISE BILLEN, M.D.
III. WHETHER APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO ADEQUATELY BRIEF BEFORE THE SUPERIOR COURT THE ISSUE OF THE INTRODUCTION OF THE PRIOR CONSISTENT STATEMENTS OF THE VICTIM, A.M., THROUGH THE TESTIMONY OF DR. WITCHELL AND DETECTIVE WILLIAMS.

Appellant’s brief at 15.

The victim A.M. was born to appellant and R.M. on February 17, 1984. On August 29, 1989, appellant was arrested for allegedly sexually abusing her daughter A.M. at various times between December 1986 and September 1987. After a four day trial in January 1990, a jury found appellant guilty of one count of rape, statutory rape, involuntary deviate sexual intercourse, and incest, and two counts each of corruption of minors, indecent assault, and endangering the welfare of children. On August 29, 1990, appellant was sentenced to an aggregate sentence of ten (10) to twenty (20) years imprisonment on all charges. Following the denial of post-trial motions, appellant filed a timely appeal to this Court and retained new appellate counsel. After this Court affirmed her convictions on December 31, 1991, appellant filed a pro se PCRA petition. PCRA counsel was thereafter appointed to represent appellant. After three days of hearings, the PCRA court dismissed appellant’s petition, and this timely appeal followed.

In reviewing the dismissal of a PCRA petition, “[w]e are limited to determining whether the lower court’s findings are supported by the record and its order is otherwise free from legal error.” Commonwealth v. McCord, 435 Pa.Super. 1, 8, 644 A.2d 1206, 1209 (1994), appeal denied, 543 Pa. 725, 673 A.2d 332 (1996).

Appellant’s first two issues concern appellate counsel’s ineffectiveness in failing to raise on appeal the ineffectiveness of her trial counsel. When raising an ineffectiveness claim in the context of the PCRA, it is well-settled that appellant must present a claim of arguable merit, show that the particular course chosen by counsel lacked any reasonable basis, demonstrate that counsel’s commission or omission prejudiced her, as well as prove that counsel’s ineffectiveness “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Commonwealth v. Douglas, 537 Pa. 588, 597, 645 A.2d 226, 230 (1994).

Appellant’s first ineffectiveness claim is that her trial and appellate counsel were ineffective for failing to challenge the sufficiency -of the evidence for her rape, statutory rape, and incest convictions. Appellant’s underlying claim is that her conduct does not fit the statutory definition for these three crimes because she, as a female, cannot be convicted of the crimes of rape, statutory rape, or incest of another female in Pennsylvania.

Under Pennsylvania law, rape is defined as “a person ... engaging] in sexual intercourse with another person not his spouse----” 18 Pa.C.S. § 3121. Sexual intercourse, “[i]n addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however slight; emission is not required.” 18 Pa.C.S. § 3101.

In Commonwealth v. Hitchcock, 523 Pa. 248, 251, 565 A.2d 1159, 1161 (1989), our Supreme Court defined rape as “any forcible penetration of the three defined orifices of the body of a female by a male____” In a concurring opinion to Hitchcock, Justice Papadakos attempted to clarify the majority’s definition of rape:

[T]he crimes of Rape (3121) and Involuntary Deviate Sexual Intercourse are overlapping to the extent that they both include the acts of oral and anal sex. There is no gender distinction between them. The distinctions are traditional but not definitional. The act of rape can be committed by penetration however slight by penis or by mouth by either sex upon either sex. A male can rape a female by his penetration of any of the victim’s orifices; a male can rape another male in the same fashion; and similarly, a female can rape another female or male as well.

Id. at 254, 565 A.2d at 1162. In cases subsequent to Hitchcock, we have adopted Justice Papadakos’ reading of the statute. See Commonwealth v. Lee, 432 Pa.Super. 414, 426, 638 A.2d 1006, 1012 (1994) (applying Justice Papadakos’ definition of rape, and stating that rape “is a gender neutral crime that encompasses [involuntary deviate sexual intercourse] in most cases”); cf. Commonwealth v. Fouse, 417 Pa.Super. 534, 540, 612 A.2d 1067, 1070 (1992) (stating that “a mother who engaged in vaginal intercourse with her son would be guilty of incest,” which is defined as a person knowingly having sexual intercourse with a descendant).

Thus, as the evidence at trial, viewed in the light most favorable to the Commonwealth, demonstrated that appellant used her lips to penetrate her daughter’s sex organs, we find that such behavior supports a conviction for rape under 18 Pa.C.S. § 3121 and our Hitchcock progeny interpreting the statute. Moreover, as the victim was a minor and a descendant of appellant, the evidence also was sufficient to support appellant’s convictions for statutory rape and incest. See 18 Pa.C.S. § 3122 (statutory rape occurs when “[a] person who is 18 years of age or older ... engages in sexual intercourse with another person not his spouse who is less than 14 years of age”); 18 Pa.C.S. § 4302 (incest occurs when “[a] person ... knowingly ... has sexual intercourse with ... a[ ] descendant____”). Consequently, as appellant’s sufficiency contentions lack arguable merit, we dismiss this claim. See Commonwealth v. Correa, 437 Pa.Super. 1, 648 A.2d 1199 (1994) (counsel cannot be ineffective for failing to file groundless challenge to sufficiency of the evidence claim), appeal denied, 540 Pa. 617, 657 A.2d 487 (1995).

Appellant’s next ineffectiveness claim is that her trial and appellate counsel were ineffective for not presenting expert testimony to rebut the Commonwealth’s expert witnesses.

To establish ineffective assistance of counsel for the failure to present an expert witness, appellant must present facts establishing that counsel knew or should have known of the particular witness. See Commonwealth v. Carter, 443 Pa.Super. 231, 242, 661 A.2d 390, 395 (1995), appeal denied, 544 Pa. 623, 675 A.2d 1242 (1996); Commonwealth v. Holloway, 524 Pa. 342, 351, 572 A.2d 687, 692 (1990). Moreover, trial counsel need not introduce expert testimony on a client’s behalf if counsel is able to effectively cross-examine prosecution witnesses and elicit helpful testimony. Holloway, 524 Pa. at 352, 572 A.2d at 692.

The record indicates that trial counsel made diligent efforts to locate an expert, as she testified at the PCRA hearing that she had discussions with various experts regarding appellant’s case. Moreover, while appellant’s PCRA counsel presented an expert at the PCRA hearing who testified that the Commonwealth’s experts could not have concluded with a reasonable degree of medical certainty that the victim was sexually abused, appellant did not demonstrate that this witness would have been available prior to trial. Carter, supra; Holloway, supra. In addition, appellant’s PCRA expert made his conclusions without personally examining the victim, and only from the documents handed to him by PCRA counsel. Finally, the record shows that appellant’s trial counsel vigorously cross-examined the Commonwealth’s expert witnesses, and that the jury found these witnesses credible. See Holloway, supra (unsuccessful attempt to impeach Commonwealth witness was not ineffective assistance of trial counsel, as jury was entitled to find that Commonwealth witnesses were more credible than the appellant). Accordingly, we find that trial counsel was not ineffective for relying solely on cross-examination as a matter of trial strategy, and dismiss this claim. Douglas, supra.

Appellant also claims that her appellate counsel was ineffective for failing to present an adequate argument in her appellate brief on whether prior consistent statements of the victim were improperly introduced through the testimony of the victim’s psychologist, Dr. Robert Witchell, and Detective Jim Williams.

Upon our initial appellate review of this issue, we stated:

Appellant’s brief has failed to set forth any specific objec-. tions and has only regurgitated law in isolation of any factual averments. Appellant’s failure to cite to the record where the claim arises precludes our review of this issue. Commonwealth v. Rozanski, 289 Pa.Super. 531, 433 A.2d 1382 (1981). See also Pa. R.A.P. 2119(c), (e).

Com. v. KM., Superior Court Memorandum, No. 01366 Pgh 90, filed December 31, 1991, at 12. We have reviewed PCRA counsel’s attempt to reframe this argument, and still find no specific citations to the record nor sufficient elaboration of this argument to enable us to adequately review this claim. Consequently, we will not review this issue.

As the lower court’s findings are factually and legally supported by the record, we affirm the order denying post-conviction collateral relief.

Order affirmed.

      . 18 Pa.C.S. § 3121.

      . 18 Pa.C.S. § 3122.

      . 18 Pa.C.S. § 3123.

      . 18 Pa.C.S. § 4302.

      . 18 Pa.C.S. § 6301.

      . 18 Pa.C.S. § 3126.

      . 18 Pa.C.S. § 4304.

      . We note that these claims are not waived despite appellate counsel’s failure to raise them on appeal, as an allegation that all counsel below were ineffective constitutes “extraordinary circumstances” sufficient to escape waiver. See Commonwealth v. Griffin, 537 Pa. 447, 644 A.2d 1167 (1994).

      . We recognize that the statutory language contains the pronoun “his,” but do not find any particular legislative intent behind the use of the gender-specific pronoun. See, e.g., 18 Pa.C.S. § 2502 ("A person is guilty of criminal homicide if he intentionally ... causes the death of another human being.”).

      . In Commonwealth v. Frank, 433 Pa.Super. 246, 640 A.2d 904 (1994), we held that the rape statute is gender neutral in regard to the victim of the sexual assault, but did not comment on whether the perpetrator must be male or female.


author: KELLY, Judge.

text:
    680 A.2d 1172
    In the Interest of S.S. Appeal of S.S., Appellant.
    Superior Court of Pennsylvania.
    Submitted March 13, 1996.
    Filed July 15, 1996.

      John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
    Peter J. Gardner, Assistant District Attorney, Philadelphia, for Commonwealth.
    Before BECK, KELLY, and OLSZEWSKI, JJ.
   KELLY, Judge.

This appeal asks us to determine whether the trial court erred in denying the motion to suppress physical evidence of appellant, S.S., where appellant and his personal belongings were subjected to a search and seizure, without reasonable, individualized suspicion or probable cause to believe that appellant had violated any law or school regulation. We hold that no individualized suspicion was required under the circumstances and that the motion to suppress was properly denied. Accordingly, we affirm the trial court’s order adjudicating appellant delinquent and placing him on probation.

On September 28, 1994, appellant, a student of William Penn High School, a Philadelphia public school, was instructed by Mr. Joseph Dell Picket, an employee of the school, upon entering the school to remove his coat and to place his book bag on a table as part of a student-wide search. Appellant complied. Appellant was then scanned with a metal detector and his belongings were patted down by Mr. Dell Picket. Mr. Dell Picket felt what he described as a bulge resembling a knife in appellant’s coat. Mr. Dell Picket called to his supervisor, Lieutenant Pugh, to act as a witness while he conducted a search of appellant’s coat pocket. The search of appellant’s pocket revealed a box cutter. All of the students who entered the school that day were led to the gymnasium and were subjected to the same scan and pat down procedure as appellant. The box cutter was turned over to Lieutenant Pugh, who took appellant into a holding room and then handed him over to the police.

On September 28, 1994, appellant was arrested without a warrant by Philadelphia law enforcement authorities and charged with the delinquent act of possession of a weapon on school property. On April 20, 1995, appellant filed a timely pretrial motion requesting the suppression of physical evidence. On May 1, 1995, the Honorable Paul P. Panepinto denied the motion after a hearing on its merits. Judge Panepinto then found appellant guilty of the delinquent act of possession of a weapon on school property and placed appellant on probation. On June 9,1995, appellant filed a motion to reconsider the verdict and/or grant post verdict relief. The motion was denied. A timely appeal followed.

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

DID NOT THE LOWER COURT ERR BY DENYING APPELLANT’S MOTION TO SUPPRESS PHYSICAL EVIDENCE, WHERE APPELLANT AND HIS PERSONAL BELONGINGS WERE SUBJECTED TO A SEARCH AND SEIZURE, WITHOUT REASONABLE SUSPICION OR PROBABLE CAUSE TO BELIEVE THAT APPELLANT HAD VIOLATED ANY LAW OR SCHOOL REGULATION, IN VIOLATION OF HIS RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES, GUARANTEED BY BOTH THE STATE AND FEDERAL CONSTITUTIONS?

(Appellant’s Brief at 3).

At the outset, we note that in reviewing a suppression ruling,

our initial task is to determine whether the factual findings are supported by the record. In making this determination, we must consider only the evidence of the prosecution’s witnesses, and so much evidence of the defense that remains uncontradicted when fairly read in the context of the record as a whole. When the evidence supports the factual findings, we are bound by such findings; we may reverse only if the legal conclusions drawn therefrom are erroneous.

Commonwealth v. Williams, 539 Pa. 61, 71-72, 650 A.2d 420, 425-26 (1994).

Appellant asserts that the trial court erred when it denied his motion to suppress physical evidence seized as the result of a search of appellant’s personal belongings, made without any individualized suspicion. Appellant contends that “searches without individualized suspicion can be justified only where they are strictly limited in scope and procedural safeguards are present.” (Appellant’s Brief at 10). Appellant argues that appellee provided no evidence to establish a general need for such searches and that school district police were not following established guidelines while conducting the search. Thus, appellant concludes that the search violated his state and federal rights against unreasonable searches and seizures.

In support of his argument, appellant relies on Commonwealth v. Cass, 446 Pa.Super. 66, 666 A.2d 313 (1995), allocatur granted, 543 Pa. 723, 673 A.2d 331 (1996), where this Court held that the trial court properly suppressed drug paraphernalia and marijuana seized from appellant’s locker during a random search at Harborcreek High School, a public school in Erie County. The search was conducted by the Pennsylvania State Police and an Erie County Drug Task Force detection dog. The Court reasoned that there was no evidence of particular incidents of drug use or drug dealing in the school to amount to reasonable suspicion to conduct a sniff search of appellant’s locker. Id. at 72-73, 666 A.2d at 316. The Court concluded that the search was not justified at its inception and was not conducted in the manner prescribed by the school’s Code of Student Conduct. Id. at 72-73, 76-77, 666 A.2d at 316, 318.

In reply to appellant’s claims, the Commonwealth herein asserts that the trial court properly denied appellant’s motion to suppress physical evidence. The Commonwealth further contends that no individualized suspicion is necessary where, as here, school district police conducted a minimally intrusive administrative search of students for weapons. In support of its argument, the Commonwealth cites In the Interest of F.B., 442 Pa.Super. 216, 658 A.2d 1378 (1995), allocatur granted, 542 Pa. 647, 666 A.2d 1056 (1995).

In Interest of F.B., supra, appellant, a student of University High School, a Philadelphia public school, was subjected to an in-house metal detector scan and bag search conducted by school district police. Upon entering the school, students were led to the gymnasium where they were ordered to empty their pockets, surrender their jackets and bags and were scanned by a metal detector. Appellant emptied his pockets and discarded a Swiss-type folding knife. Subsequently, appellant was escorted to a holding room and was arrested for possessing a weapon on school property. Appellant filed a motion to suppress evidence seized. The trial court denied appellant’s motion and adjudicated him delinquent.

On appeal, this Court affirmed, holding that the search of a student during a student-wide search by school officials for weapons was reasonable where school officials had no individualized suspicion that the student was armed. Id. at 219, 658 A.2d at 1380. The Court noted that administrative searches are permitted where law enforcement authorities have no individualized suspicion when conducting a search as part of a general regulatory scheme to ensure public safety. Interest of F.B., supra at 223, 658 A.2d at 1381 (citing U.S. v. $124,570 in U.S. Currency, 873 F.2d 1240, 1243 (9th Cir.1989)). The Court concluded that “the search was justified at its inception because of the high rate of violence in the Philadelphia public schools.” Id. at 225, 658 A.2d at 1382.

The facts in the present case differ from those in Commonwealth v. Cass, supra, and, in fact, are more akin to those of Interest of F.B., supra. In Commonwealth v. Cass, supra, this Court specifically stated that the holding in that case did not conflict with the holding in Interest of F.B., supra, because Cass dealt with a canine sniff search for drugs. Commonwealth v. Cass, supra at 77 n. 10, 666 A.2d at 319 n. 10. This Court did not address that issue in Interest of F.B., supra.

Unlike the instant case, in Commonwealth v. Cass, supra, police officers, who were not employed by the school district, conducted a sniff search of all student lockers. Although the dog detected narcotics in approximately eighteen lockers, these lockers, as well as the adjacent lockers, were searched. This procedure not only violated the search guidelines established by the school; it provided the police officers and school officials with a great amount of discretion. Moreover, the search lacked the uniformity and exactitude of the search conducted in the present case. Here, every student was searched in the same manner and no one student was singled out. The school district police were supervised while they conducted the searches to avoid unbridled discretion. Furthermore, the search in Commonwealth v. Cass, supra, was not conducted in a Philadelphia public school but rather in a public school in Erie County where there was no indication that the same history of violence existed.

In contrast, the school district police in both the present case and Interest of F.B., supra, followed a uniform procedure when they searched each student. This uniformity served as a safeguard, assuring that a student’s expectation of privacy was not subjected to officials’ discretion.

Following the reasoning in Interest of F.B., supra, we conclude that the search of appellant and his belongings was an administrative search which was justified at its inception “because of the high rate of violence in the Philadelphia public schools.” See id. at 225, 658 A.2d at 1382. Although it would be prudent to notify students and parents of the school’s search policy, it is not requisite to a reasonable search. Under the circumstances, the school’s interest in ensuring security and educating its students far outweighs appellant’s privacy interest. The search, as conducted, was reasonably related to the school’s interest in promoting student safety. Because appellant’s privacy interests were minimal and safeguards were present, individual suspicion was not necessary before searching appellant and his belongings. Thus, we agree with the Commonwealth and conclude that In the Interest of F.B., supra, is controlling.

Based upon the foregoing, we hold that this search did not violate appellant’s rights under either the United States or Pennsylvania Constitutions and that the trial court properly denied appellant’s motion to suppress. Accordingly, we affirm the order adjudicating appellant delinquent and placing him on probation.

Order affirmed.

BECK, J., concurs in the result.

      . U.S. Const., Amends. IV, XIV; Pa. Const., Art. 1, § 8.

      . Similarly, in In the Interest of Dumas, 357 Pa.Super. 294, 515 A.2d 984 (1986), this Court, having balanced the student’s legitimate expectation of privacy in his or her school locker with the school’s need to maintain order and discipline, held that the search of a student's locker to determine whether it contained controlled substances was unreasonable because the school official did not have a well-founded suspicion that the search would uncover drugs. The concurring opinion stated: "[A] search of an individual student’s school locker to determine whether the locker contains cigarettes or other unpermitted materials violated the student’s privilege against unreasonable searches and seizures when the school official conducting the search did not have a reasonable and articulable basis to believe that the search would uncover evidence that the law or the rules of the school were violated or being violated.” Id. at 298-99, 515 A.2d at 986 (footnote omitted).
      In contrast to the present case, the school in Interest of Dumas, supra, did not follow a uniform or consistent procedure when it conducted its searches. Furthermore, the search was of an individual student’s locker for drugs, not a school-wide metal detector search, as in the instant case, conducted without individualized suspicion.

      . This Code of Student Conduct provides the following guidelines as to when a locker could be searched:
      SEARCHES
      School authorities may search a student's locker and seize any illegal materials. Such materials may be used as evidence against the student in disciplinary proceedings. Prior to a locker search a student shall be notified and given an opportunity to be present. However, where school authorities have a reasonable suspicion that the locker contains materials which pose a threat to the health, welfare, and safety of students in the school, students’ lockers may be searched without prior warning.

      . Unlike the instant case, school officials in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), conducted a search of a student’s purse based on individualized suspicion that the student violated a school rule. The United States Supreme Court held that the search, which revealed marijuana and drug paraphernalia, was reasonable. Id. at 332-33, 105 S.Ct. at 737-38, 83 L.Ed.2d at 733. Furthermore, the Supreme Court emphasized that in reaching its holding in New Jersey v. T.L.O., supra, it did not “consider the circumstances that might justify school authorities in conducting searches unsupported by individualized suspicion.’’ Id. at 342 n. 8, 105 S.Ct. at 743 n. 8, 83 L.Ed.2d at 735 n. 8.

      . In Commonwealth v. Cass, supra, school officials did not regularly conduct searches, as was the practice in Interest of F.B., supra. See Commonwealth v. Cass, supra at 77 n. 10, 666 A.2d at 319 n. 10.

      . In contrast, in Vernonia School District 47J v. Acton, 515 U.S. -, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), a search was conducted on a select group of students. The school district’s policy called for drug testing of only student athletes, in the absence of individualized suspicion, by blindly drawing the names of ten percent of the athletes for random testing. The United States Supreme Court held that the district’s policy, authorizing urinalysis drug testing of all student athletes, did not constitute an unreasonable search because of student-athletes’ decreased expectation of privacy, the minimal level of intrusiveness of the search, and the compelling need for the search. Id. at -, 115 S.Ct. at 2396, 132 L.Ed.2d at 582. Moreover, the search was conducted primarily because of the risk of physical harm to the drug user and to those athletes with whom he or she was playing the sport, not to reduce violence in public schools caused by weapons. Id. at -, 115 S.Ct. at 2395, 132 L.Ed.2d at 580.


text:
    680 A.2d 1176
    COMMONWEALTH of Pennsylvania v. Joseph Edward HERON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 18, 1996.
    Filed July 15, 1996.

      Lisa M. Andrejko, Public Defender, Montrose, for appellant.
    Marion O’Malley, Assistant District Attorney, Montrose, for Com., appellee.
    Before BECK, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge.

Joseph Edward Heron, a juvenile, appeals from the Order of Disposition entered on June 1, 1995 following an adjudication of delinquency after appellant was found guilty of rape, involuntary deviate sexual intercourse, aggravated indecent assault and indecent assault. Pursuant to the Order, appellant was placed under the “intensive supervision of the Susquehanna County Juvenile Probation Department” subject to the following terms and conditions: 1) appellant shall have no contact with children under the age of 14 years old without appropriate adult supervision; 2) appellant shall have no contact with the victim or her family; 3) appellant shall be responsible for making restitution for counseling to the victim; 4) appellant’s parents shall also be responsible for restitution; 5) appellant shall be responsible for court costs relating to this matter; 6) appellant shall receive individual and family counseling; 7) appellant shall complete 25 hours of community service; and 8) appellant shall not miss more than three days of school for the remaining (1995-1996) school year. See Order, 6/1/95.

In addition to the appeal, we have before us an amended petition for leave to withdraw as counsel filed by appellant’s counsel, Lisa M. Andrejko. By Opinion filed April 23, 1996, we found counsel’s original petition defective for failing to allege frivolity, for failing to advise appellant of his right to proceed pro se and for failing to notify appellant directly of counsel’s request to withdraw. Commonwealth v. Heron, 449 Pa.Super. 684, 674 A.2d 1138 (1996). Based upon these deficiencies we directed counsel to file an amended petition within thirty (30) days. Counsel has now done so.

Having reviewed counsel’s amended petition to withdraw, we find that she has now complied with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Further, our independent study of the record indicates that appellant’s appeal is wholly frivolous and, therefore, we grant counsel’s request to withdraw. Our conclusion that the appeal is wholly frivolous also compels us to affirm the June 1, 1995 Order of Disposition.

In her Anders brief, counsel has complied with the requirement imposed by Commonwealth v. Thomas, 354 Pa.Super. 87, 89-91, 511 A.2d 200, 201 (1986), that she “flag” possible issues worthy of appellate review. Counsel has raised the sufficiency of the evidence supporting the trial court’s Order of Disposition. Our Court’s standard of review for “sufficiency of the evidence” claims views the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, viewed in this light, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. McIlvaine, 385 Pa.Super. 38, 560 A.2d 155 (1989). The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact, who is free to believe all, some or none of the evidence. Commonwealth v. Yetsick, 402 Pa.Super. 615, 587 A.2d 788 (1991).

The evidence in the instant case was presented solely through the testimony of the victim, a police detective investigating the case, a children and youth services caseworker and a nurse practitioner. Our review of this testimony, as apparently believed by the trial court as finder of fact, indicates beyond a reasonable doubt that appellant committed the crimes underlying the Order of Disposition. Thus, the evidence was sufficient to sustain the Order and a challenge to the sufficiency of the evidence would be, as counsel claims, wholly frivolous.

Based on the foregoing, counsel’s amended petition for leave to withdraw as counsel is granted.

Order of Disposition affirmed.

      . 18Pa.C.S. § 3121.

      . Id., § 3123.

      . Id., §3125.

      . Id., §3126.


author: JOHNSON, Judge:

text:
    680 A.2d 1178
    Marvin W. FACTOR and Kathleen M. Factor, Appellants, v. BICYCLE TECHNOLOGY, INC. and Specialized Bicycle Components and Shimano Industrial Co., Ltd. v. GIANT MANUFACTURING COMPANY, LTD.
    Superior Court of Pennsylvania.
    Argued April 17, 1996.
    Filed July 23, 1996.

      David F. Binder, Philadelphia, for appellants.
    Thomas A. Kuzmick, Philadelphia, for Giant Manufacturing Company, appellee.
    Before JOHNSON, HOFFMAN and OLSZEWSKI, JJ.
   JOHNSON, Judge:

In this appeal, the primary question we are asked to resolve is the following: Did the trial court err in denying the motion for a new trial made by Marvin and Kathleen Factor despite the fact that the Factors made a fully informed and knowledgeable choice to permit the case to proceed to the jury without making a motion for a mistrial? Because we find no error, we affirm the judgment entered against the Factors and in favor of Giant Manufacturing Co., Ltd. (“Giant”).

Marvin Factor was injured in a bicycle accident involving a bicycle partially assembled by Giant. Factor alleged that the front wheel of the bicycle prematurely disengaged as he avoided a depression in a dirt path, causing him to be thrown onto his head and causing, inter alia, partial quadriplegia. Factor further alleged that the bicycle was defective in that it lacked a redundant retention device for the front wheel, and that this defect caused his injuries. After a week-long trial, the jury answered the special interrogatory “Do you find the front wheel came off the ... bicycle causing Mr. Factor’s accident?” in the negative, thus obviating the need for responses to any other special interrogatories. This answer was molded into a verdict for Giant and led to the judgment appealed from in this instance.

The Factors filed a timely motion for post-trial relief seeking a new trial. The Factors contended that the verdict was against the weight of the evidence and that

the trial court erred when it denied [the Factors’] request to strike and/or instruct the jury to disregard the testimony, in whole or part, of Giant’s expert witness on liability, Ward Curtis, after Mr. Curtis gave crucial testimony that was (a) misleading, (b) deceptive, and (c) inconsistent with and beyond the fair scope of his written report, all in violation of Pa.R.Civ.P. 4003.5(c),

Trial Court Opinion, dated October 31, 1995, at 2-3. Upon motion by Giant, the Factors’ post-trial motion was heard by a trial court en banc, which denied the motion. This appeal followed.

The Factors’ first contention on appeal is that the jury’s answer to the first special interrogatory was against the weight of the evidence. Authority to grant a new trial on the grounds that the verdict was against the weight of the evidence is within the discretion of the trial court; the question on appeal is “whether the trial court palpably and clearly abused its discretion or committed an error of law which controlled the outcome of the case.” Nigro v. Remington Arms Co., Inc., 432 Pa.Super. 60, 637 A.2d 983 (1993), appeal dismissed, 540 Pa. 49, 655 A.2d 505 (1995); accord Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985).

Here, the Factors contend that “all of the witnesses who were near the scene of the accident testified either that they saw the wheel come off, or saw the wheel off the bicycle .immediately after the accident.” Brief of Appellant at 12. Despite this assertion, the trial court found, and the record supports the finding, that “[n]one of the witnesses purported to have seen the wheel coming off the bicycle as the accident was actually occurring.” Trial Court Opinion, supra, at 3. The Factors did present the testimony of several witnesses who saw either an unattached wheel or a bike missing a wheel at varying times after the accident, but Giant presented the conflicting testimony of the first police officer to arrive at the scene. A new trial should not be granted upon a mere conflict in testimony, Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984), but only where the jury’s verdict shocks the sense of justice of the reviewing body, Thompson, supra, at 597-98, 493 A.2d at 672. The trial court properly refused the Factors’ request for a new trial on this basis.

The Factors’ second contention on appeal is that the trial court’s failure to strike the testimony of Giant’s expert witness, Ward Curtis, or at least to instruct the jury to disregard that testimony, requires a new trial. This contention is without merit. The trial court summarized relevant portions of Curtis’s testimony as follows:

[Curtis testified that he inspected the bicycle involved in this case and admitted into evidence] and that he found no evidence on [it] to support the claim that the front wheel prematurely released. He then came off the stand, showed the bicycle ... to the jury, and told the jury, among other things, that the lack of any broken spokes, or damage to the spokes, and the lack of any markings on the rim of the front wheel, led him to form his opinion that the wheel did not come off in the course of Mr. Factor’s accident.
On cross-examination, when questioned about his direct testimony, Curtis stated that in his opinion the front wheel on the bicycle in evidence was not the front wheel that had been on the bicycle at the time of the accident.
Curtis admitted that he had been hired, on behalf of Giant, the previous year, that he had inspected Mr. Factor’s bicycle ... almost six months prior to his testimony, and that he wrote a report that said nothing about the front wheel not being the wheel that was on the bicycle at the time of the accident.

Opinion, supra, at 32-33. A conference was held out of the presence of the jury regarding Curtis’s testimony. The trial judge noted that one option available to the Factors was a motion for a mistrial; the Factors declined to make such a motion, and instead requested that the trial judge strike Curtis’s testimony or instruct the jury to disregard it. The trial court denied the Factors’ request. Upon this denial, the Factors neither sought a continuance to assemble rebuttal testimony, nor did they offer any instructions to the court in response to the court’s direction, given with its denial of the Factors’ motion, to “give me a formal written request [for a point for charge regarding Curtis] and then I can decide what to do with it.” N.T., October 17, 1994, at 36. Further, as the trial court noted, the court also “gave additional instructions to the jury that they could consider, among other things, the fact that [Curtis] had expressed at the trial an opinion that was not in his report.” Opinion, supra, at 9.

Our supreme court has noted that “[h]owever difficult some strategic decisions are to trial counsel, a party is bound by his or her counsel’s actions and if an issue is waived on strategic grounds or by inadvertence, it is waived.” McMillen v. 84 Lumber, Inc., 538 Pa. 567, 649 A.2d 932 (1994) (finding waiver of right to new trial upon failure of appellees to make timely request for declaration of a mistrial). The Factors attempt to distinguish McMillen on the grounds that the McMillen appellees “received all [they] asked for in the court below,” Brief of Appellants at 18, while the Factors’ motion for relief short of a mistrial was denied. We do not, however, find this distinction to be dispositive. Where, as in the instant case, a party makes a fully informed and knowledgeable choice to permit a case to go before the jury without a motion for a mistrial despite alleged trial defects, any right to a new trial based on such defects is waived.

Judgment AFFIRMED.